Richard Bennett

The defendant brought a summary judgment motion in a longstanding defamation action.

The plaintiffs sought an adjournment after changing counsel.

The court granted the adjournment on peremptory terms, allowing the plaintiffs to participate but imposing a strict timetable.

The court also ordered the plaintiffs to pay $4,000 in costs thrown away to the defendant, rejecting the defendant's claim for over $30,000 in costs as excessive and disproportionate.

Following a lengthy jury trial concerning defamation and invasion of privacy claims against media defendants, the jury accepted the defence of justification and dismissed the action.

The successful defendants sought substantial indemnity costs exceeding $1.6 million.

The court considered the governing principles under the Rules of Civil Procedure, including the presumption that costs are fixed by the trial judge and the factors under Rule 57.01.

Given the jury’s findings that the impugned statements were true and the plaintiff’s unsuccessful prosecution of extensive allegations of fraud, the court held that the case justified an award of substantial indemnity costs.

Costs were fixed at the defendants’ reasonable full indemnity amount due to the indemnity principle.

The defendants brought a pre‑trial motion seeking permission to call several non‑party witnesses residing outside Canada to testify at trial by video conference.

The plaintiff opposed the request, arguing that credibility assessment, document handling, and logistical issues required in‑person testimony.

Applying Rule 1.08 of the Rules of Civil Procedure and the proportionality principles in Rule 1.04, the court held that modern video conferencing technology can permit effective credibility assessment and efficient presentation of evidence.

Given the witnesses’ overseas residence, professional obligations, and the disproportionate cost and difficulty of travel, the court granted leave for their testimony to be given by video conference subject to procedural conditions.

The plaintiff brought a motion shortly before trial seeking a determination under Rule 21.01(1)(a) of the Rules of Civil Procedure that a televised documentary was prima facie defamatory, along with directions regarding the order of evidence and a proposed bifurcation of liability and damages.

The court held that although questions about defamatory meaning can sometimes be determined before trial, such motions must be brought promptly under Rule 21.02.

Because the action had been underway for nine years and the motion was brought only weeks before trial, the request for a Rule 21 determination was refused.

The court also declined to modify the usual order of presentation of evidence in a jury trial or to bifurcate liability and damages absent party consent.

The plaintiff was granted leave to file a DVD of the documentary as part of the record.

In a defamation trial arising from a televised investigative report, the plaintiff moved to prevent the defendants from relying on the defences of fair comment and responsible communication before the jury.

The court considered the governing principles from the Supreme Court of Canada in WIC Radio Ltd. v. Simpson and Grant v. Torstar Corp., as well as the gatekeeping role of the trial judge when determining whether a defence should be left to the jury.

Applying the evidentiary threshold described in Boland v. The Globe and Mail, the court held that the question is whether there is any evidence upon which a jury could find the defence established.

The court found that there was ample evidence supporting both defences and that disputes about credibility and weight were matters for the jury.

Accordingly, the plaintiff’s request to remove those defences from the jury’s consideration was dismissed.

During a defamation trial arising from a documentary alleging scientific fraud, the defendants sought to introduce written interrogatories from a separate civil proceeding in Newfoundland and Labrador involving the plaintiff and a former research nurse.

The plaintiff objected, arguing that admission would violate the implied undertaking rule governing discovery materials from other litigation.

The court held that the defendants were not parties bound by the undertaking in the Newfoundland action and that, in any event, the common law general inclusionary rule favours admission of relevant evidence even if improperly obtained.

The interrogatories were found potentially relevant to credibility and to the defendants’ defences of fair comment and responsible journalism.

The court therefore admitted the interrogatories into evidence.

The moving defendants sought to strike a jury notice in a defamation and invasion of privacy action arising from a broadcast alleging scientific fraud and financial deception.

The court reviewed the governing principles respecting the substantive right to a civil jury trial, including complexity, expert evidence, trial length, legal difficulty, and the availability of a wait-and-see approach.

Although the action involved voluminous documents, anticipated expert scientific evidence, and complex defamation issues, the court held that cogent reasons had not yet been shown to displace the jury.

The preferable course was to permit the trial to begin and reconsider discharge of the jury only if the anticipated complexities materialized to a degree warranting intervention.