Pietkiewicz v. Sault Ste. Marie District Roman Catholic Separate School Board et al.

[Indexed as Pietkiewicz v. Sault Ste. Marie District Roman Catholic Separate School Board]

71 O.R. (3d) 803

[2004] O.J. No. 2811

Docket No. C39017

Court of Appeal for Ontario,

Abella, Blair JJ.A. and Aitken J. (ad hoc)

July 2, 2004

Appeals -- Standard of appellate review -- Jury trial in defamation action -- Trial judge's charge on issue of truth of defamatory statements not fairly representing words complained of nor plaintiff's position at trial -- Substantial wrong or miscarriage of justice -- Court ordering new trial despite failure of trial counsel to object to jury charge.

Defamation -- Defences -- Truth -- Jury trial in defamation action -- Trial judge's charge on issue of truth of defamatory statements not fairly representing words complained of nor plaintiff's position at trial -- Substantial wrong or miscarriage of justice -- Court ordering new trial despite failure of trial counsel to object to jury charge.

On September 25, 1994, in Sault Ste. Marie, Ontario, Karen Pietkiewicz, a former employee of the Sault Ste. Marie District Roman Catholic Separate School Board, participated in a television broadcast about the Board's alleged failure to handle complaints about the sexual misconduct of a teacher, Kenneth DeLuca, who was later convicted of sexual offences. In the broadcast, the reporter stated that Pietkiewicz had gone to the Board with at least one complaint from a girl under the age of 14. On September 29, 1994, the Board served Pietkiewicz, the television station, the broadcaster, and the journalists with a notice under s. 5 of the Libel and Slander Act, R.S.O. 1990, c. L.12. Negotiations between the Board and the broadcaster followed resulting in William Struk, a former Director of Education, being interviewed in a broadcast on November 2, 1994 by Derek Rogers, a reporter. In the broadcast, Rogers stated: ". . . Struk says, contrary to unsubstantiated allegations of former School Board employee, Karen Pietkiewicz, Board officials received no information from Pietkiewicz in 1989 about an alleged incident of sexual misconduct by DeLuca". In the broadcast, Struk stated: [page804]

We have no reports whatsoever of her making such a report to us or a record of her making such a report to us and in fact, if anything had occurred and she was aware of it as an employee of the Board, by Board policy, and by the Act, the responsibility was hers to report it to the Children's Aid Society or to the police. . . . As far as I am concerned, and the officials of the Board know, the Board investigated all allegations that came to us, supervisory officers, followed through with regard to the policies, followed through with regard to the procedures of the Board as the Ministry of Education, Government of Ontario has throughout.

On November 14, 1994, Pietkiewicz served the School Board and Struk with her own notice under the Libel and Slander Act. In her statement of claim, she pleaded:

The words spoken by the Defendant, Struk, were not true. The Defendant, Struk, and other members of the Board were aware of the conduct of the said Kenneth DeLuca for some time before the Plaintiff spoke publicly; and the Board failed to take adequate action to deal with the complaints concerning the conduct of the said Kenneth DeLuca. . . .

The key issue at the trial was whether the statements made by Struk during the second broadcast were true. Pietkiewicz's position was that the defendants could not rely on the defence of "truth" unless they could prove that Board officials received no information from her in 1989 about an alleged incident of sexual misconduct by DeLuca. The defendants' position was that all they needed to prove was that Pietkiewicz had not gone to the Board in 1989 with at least one complaint from a girl under the age of 14.

The jury found that the words complained of were defamatory, that they were spoken with malice, but that they were true. In accordance with these findings, Pietkiewicz's action was dismissed with costs. She appealed on the ground that the alleged defamatory statement was not accurately or fairly put to the jury and the jury's finding that the words were true was based on a misunderstanding or an incomplete understanding as to what the words referred to.

Held, the appeal should be allowed.

The statement that led to Struk's statements in the second broadcast made no reference to a girl under the age of 14, or to a girl or a child of any age. Despite this, the focus at trial became whether the Board had received a report in 1989 about the alleged sexual abuse by DeLuca of a girl under the age of 14. This focus did not fairly represent the words complained of by Pietkiewicz in her notice and pleadings nor did it fairly represent her position at trial. It was for the jury to decide to what the words "such reports" referred when uttered by Struk during the second broadcast. If the jury decided that these words related to the opening comments of the reporter during the second broadcast, then the jury had to decide as a matter of fact whether Pietkiewicz had made any report to Board officials in 1989 of alleged sexual misconduct on the part of DeLuca.

There was evidence at trial which could have resulted in the jury deciding that she had made such a report. A jury decision in a defamation case is entitled to a high level of deference. Nevertheless, a jury verdict will be set aside where the judge has misdirected the jury so that a substantial wrong or miscarriage of justice has occurred. The substantial wrong that occurred here was that the context in which the trial judge placed the words complained of, for the purpose of the jury determining their truth, unfairly portrayed the potential meaning of those words. That, in turn, unfairly restricted the jury's assessment of whether the [page805] words complained of were true. Further, this was one of those rare cases where, in the interests of justice, the court must exercise its discretion and allow a new trial, despite the absence of any objection to the jury charge on the part of the appellant's counsel at trial.

APPEAL of a dismissal by Pardu J., [1999] O.J. No. 451 (Gen. Div.) of a defamation action tried by a jury.

Cases referred to Arland and Arland v. Taylor, 1955 145 (ON CA), [1955] O.R. 131, [1955] 3 D.L.R. 358 (C.A.); Becker v. Alloy Hardfacing & Engineering Co., 401 N.W.2d 655 (Minn. S.C., 1987); Brochu v. Pond (2002), 2002 20883 (ON CA), 62 O.R. (3d) 722, [2002] O.J. No. 4882 (C.A.); Cousins v. Merrill (1865), 16 U.C.C.P. 114 (C.A.); G.K. v. D.K., 1999 935 (ON CA), [1999] O.J. No. 1953, 122 O.A.C. 36, 38 C.P.C. (4th) 83 (C.A.) [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 415]; Marshall v. Watson Wyatt & Co. (2002), 2002 13354 (ON CA), 57 O.R. (3d) 813, 209 D.L.R. (4th) 411, 2002 C.L.L.C. Â210-019, 16 C.C.E.L. (3d) 162 (C.A.); R. v. Demeter (1977), 1977 25 (SCC), [1978] 1 S.C.R. 538, 75 D.L.R. (3d) 251, 16 N.R. 46, 34 C.C.C. (2d) 137, 38 C.R.N.S. 317, affg (1975), 1992 2831 (ON CA), 10 O.R. (3d) 321, 25 C.C.C. (2d) 417 (C.A.); R. v. Evans, 1993 102 (SCC), [1993] 2 S.C.R. 629, 104 D.L.R. (4th) 200, 153 N.R. 212, 82 C.C.C. (3d) 338, 21 C.R. (4th) 321; R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, 157 N.S.R. (2d) 161, 143 D.L.R. (4th) 433, 207 N.R. 246, 462 A.P.R. 16 1, 113 C.C.C. (3d) 1, 4 C.R. (5th) 280; Thompson v. Fraser Cos., 1929 57 (SCC), [1930] S.C.R. 109, [1929] 3 D.L.R. 778; Tsalamatas v. Wawanesa Mutual Insurance Co. (No. 2) (1982), 1982 3305 (ON CA), 141 D.L.R. (3d) 322, [1983] I.L.R. Â1-1603, 31 C.P.C. 257 (Ont. C.A.); Tsoukas v. Segura (2001), 96 B.C.L.R. (3d) 344, 2001 BCCA 664 (C.A.); Wills v. Carman (1989), 17 O.R. 223 (C.A.)

Statutes referred to Child and Family Services Act, 1984, S.O. 1984, c. 55, s. 68(3) Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6) Judicature Act, R.S.O. 1950, c. 190, s. 28(1) Libel and Slander Act, R.S.O. 1990, c. L.12, s. 5

Authorities referred to Brown, R.E., The Law of Defamation in Canada, 2nd ed. (Toronto: Carswell, 1999)

Karen Pietkiewicz, in person, plaintiff/appellant. Alan J. Lenczner, Q.C., and Gordon Acton, for defendants/respondents.

The judgment of the court was delivered by

AITKEN J. (ad hoc): --

Nature of Proceedings

[1] The appellant, Karen Pietkiewicz, sued the respondents for libel based on statements made by William Struk, an employee of the Sault Ste. Marie District Roman Catholic Separate School Board, during an interview broadcast on television. At trial, the jury found that the words complained of were defamatory of the [page806] appellant and that the respondents had acted with malice toward the appellant when they broadcast them. Nevertheless, the jury accepted the respondents' defence that the words were true. The appellant appeals this finding.

[2] The essence of the appellant's argument is that the trial got off track, the alleged defamatory statement was not accurately or fairly put to the jury, and the jury's finding that the words complained of were true was based on a misunderstanding or an incomplete understanding as to what those words were referring.

[3] For the reasons that follow, I would allow the appeal and order a new trial.

Background

[4] Karen Pietkiewicz, the appellant, participated in a television broadcast on September 25, 1994 in Sault Ste. Marie, Ontario relating to the Sault Ste. Marie District Roman Catholic Separate School Board's handling of complaints about the sexual misconduct of one of its former teachers, Kenneth DeLuca. The appellant was known locally as the "whistleblower", whose efforts had brought DeLuca's behaviour to the attention of the police. DeLuca was eventually convicted of various sexual offences, including a sexual assault against the appellant herself.

[5] At the beginning of the broadcast, a journalist, Jill Armstrong, introduced the issue. An excerpt from an interview between the appellant and another journalist, Tori Cook, was then aired.

JILL ARMSTRONG: A former Separate School Board employee is demanding an inquiry into the Board's handling of alleged sexual assault complaints. Karen Pietkiewicz says she informed Board officials about the activities of the teacher in question but, as Tori Cook reports, a call for an inquiry from the Ministry of Education appears to be falling on deaf ears.

TORI COOK: Karen Pietkiewicz, a former employee of the Separate School Board, has written to Education Minister Dave Cook demanding that the Ministry look into the Board's handling of allegations of sexual abuse against a male teacher. Pietkiewicz says she went to the Board in 1989 with at least one complaint from a girl under the age of 14. Do you have proof that the Board knew ahead of time that . . ." (interrupted by Karen Pietkiewicz)

KAREN PIETKIEWICZ: Well sure, I've got the letters and the letters went back and forth between me and John DeFazio for about two years and then letters to [page807] Bill Struk and the list of complaints. I had some other complaints by then that had racked up and a list about doing something about these students and no, it didn't get done.

TORI COOK: Pietkiewicz says Defazio's only one of a number of school officials who knew of the complaints against teacher Ken DeLuca but she says nothing was done until her lawyer finally initiated a police investigation. Who else did you try to get help from?

KAREN PIETKIEWICZ: Well, eventually I went to a lawyer in 1993 to try to force the Board to give me my right to complain because I'm an upper level administrative support staff and I have to go through these sequences of steps. I would have to go to John DeFazio and Bill Struk and then it goes to the Board, so, uh, and it wasn't happening.

TORI COOK: A police investigation has resulted in numerous charges against Ken DeLuca. More charges may be laid. Pietkiewicz says the courts will decide that matter. She wants the Board's actions investigated by the Ministry.

TORI COOK: At least one other female says she too was ignored by the School Board when she went to them with the allegations of assault by teacher Ken DeLuca. The woman, who has asked not to be identified, and Karen Pietkiewicz, both claim they were threatened with lawsuits if they went ahead with their allegations. The School Board declined to comment. Tori Cook, MCTV News, Sault Ste. Marie.

[6] On September 29, 1994, the School Board served the appellant, the television station, the broadcaster and the journalists with a notice under s. 5 of the Libel and Slander Act, R.S.O. 1990, c. L.12, as a result of the statements made during this broadcast. Negotiations between the School Board and the broadcaster ensued, resulting in an interview being aired on November 2, 1994 between another reporter, Derek Rogers, and William Struk, a former Director of Education of the School Board. Relevant excerpts from this interview follow.

DEREK ROGERS: . . . Struk says, contrary to unsubstantiated allegations of former School Board employee, Karen Pietkiewicz, Board officials received no information from Pietkiewicz in 1989 about an alleged incident of sexual misconduct by DeLuca.

WILLIAM STRUK: We have no reports whatsoever of her making such a report to us or a record of her making [page808] such a report to us and in fact, if anything had occurred and she was aware of it as an employee of the Board, by Board policy, and by the Act, the responsibility was hers to report it to the Children's Aid Society or to the police.

DEREK ROGERS: . . .

WILLIAM STRUK: As far as I am concerned, and the officials of the Board know, the Board investigated all allegations that came to us, supervisory officers, followed through with regard to the policies, followed through with regard to the procedures of the Board as the Ministry of Education, Government of Ontario has throughout.

DEREK ROGERS: . . . Struk adds, the Board can only deal with allegations if they're reported to School Board officials.

(Italics added)

[7] On November 14, 1994, the appellant served the School Board and Mr. Struk with her own notice under the Libel and Slander Act complaining of these portions of the broadcast. Those portions in italics were put in quotation marks in the notice and were attributed to Mr. Struk.

Pleadings Relating to Issue of Truth

[8] A key issue at the trial was whether the statements made by Mr. Struk during the second broadcast were true and therefore immune from a charge of libel. It is the trial judge's treatment of this issue in her charge that is problematic.

[9] In her Statement of Claim, the appellant stated:

7. The words spoken by the Defendant, Struk, were not true. The Defendant, Struk, and other members of the Board were aware of the conduct of the said Kenneth DeLuca for some time before the Plaintiff spoke publicly; and the Board failed to take adequate action to deal with the complaints concerning the conduct of the said Kenneth DeLuca. . . .

Thus, the focus of the appellant was on the conduct of DeLuca in a general sense. This tied in with the general wording of the opening proposition put to Mr. Struk in his interview, prior to his making the statements complained of.

[10] Much of the respondents' Amended Statement of Defence focused on the first broadcast and on the respondents' allegation that the appellant had defamed them in that broadcast. The respondents went on to situate Mr. Struk's comments in the second [page809] broadcast as a direct response to words spoken by or allegedly adopted by the appellant in the first broadcast. More specifically, the respondents claimed that Mr. Struk's comments in the second broadcast were in direct response to the appellant's alleged message in the first broadcast that she had gone to the Board in 1989 with at least one complaint from a girl under the age of 14. This was a statement which had been made by a reporter, and not the appellant, during the first broadcast. The respondents' position was that the appellant had adopted that statement as her own. The respondents pleaded that Mr. Struk's first statement in the second broadcast was true because "the [respondents] had not received any report from the [appellant] concerning an abuse complaint of an under 14 year old girl by DeLuca."

[11] In summary, the appellant's position at trial was that the respondents could not rely on the defence of "truth" unless they could prove that Board officials received no information from her in 1989 about an alleged incident of sexual misconduct by DeLuca. The respondents' position at trial was that all they needed to prove in order to rely on the defence of truth was that the appellant had not gone to the Board in 1989 with at least one complaint from a girl under the age of 14. Their differences related to the context in which each side placed the words complained of when the question of their truthfulness was being considered.

Trial

[12] The trial occurred over a period of approximately one month in January/February 1999. The jury found that the words complained of were defamatory of the appellant, were statements of fact, and were true. The jury also answered in the affirmative the question: "Did either of the Defendants, the Board or William Struk act with malice when they broadcast the words complained of?" yet they found the words to be true. In accordance with the jury's findings, the trial judge dismissed the appellant's claim and made an order of costs in favour of the respondents.

Analysis

(a) Direction Regarding "Words Complained of" and Their Truth

[13] The statement which lead to Mr. Struk's statements in the second broadcast made no reference to a girl under the age of 14, or to a girl or a child of any age. The opening proposition was that Board officials had received no information from the appellant in 1989 "about an alleged incident of sexual misconduct by DeLuca". When Mr. Struk stated: "We have no reports whatsoever of her [page810] making such a report to us . . ." (emphasis added), the word "such" could have been referring back to "an alleged incident of sexual misconduct by DeLuca". There were no descriptive words or phrases limiting the nature of the alleged incident of sexual misconduct. The reporter's opening words did not narrow the incident to sexual misconduct, abuse or assault directed at a girl under the age of 14 or, for that matter, at any child or girl.

[14] Despite this, the focus at trial became whether the Board had received a report from the appellant in 1989 about the alleged sexual abuse by DeLuca of a girl under the age of 14. Days of testimony were spent on whether the appellant knew of any sexual abuse of a girl under the age of 14 or of any sexual misconduct directed at a student under the age of 16, whether she had reported any such alleged conduct to the Board and whether she had reported any abuse of a child to the Children's Aid Society. The appellant's position that the words complained of were uttered as a response to a reference to sexual misconduct generally, became overshadowed by the preoccupation with the alleged sexual abuse of children. Although initially the trial judge reminded counsel of the actual wording of the second broadcast and of the actual words complained of by the appellant, [^1] during the course of the trial, this message was not reinforced.

[15] On p. 3 of her ruling on February 4, 1999, the trial judge stated: "[The appellant] alleged that she had reported sexual abuse by a teacher upon at least one fourteen-year-old child in 1989." No such statement by the appellant was referenced in the second broadcast containing the words complained of. The appellant made no such allegation in her pleadings. During the trial, the appellant acknowledged that although she had heard rumours about possible instances of sexual abuse by DeLuca upon students who may have been 14 or younger at the time, she had no information regarding any specific incident regarding a child 14 or younger. Thus, she acknowledged not having made a report in 1989 either to Board officials or to the Children's Aid Society about an alleged incident of sexual abuse by DeLuca of a child 14 or younger. What she did say during the trial was that she had told Board officials in 1989 of DeLuca's sexual assault on herself and of the complaints she had received from the parents of two of DeLuca's students. Her evidence was that one of those students was at least 16 at the time of the complaint. The other would have been 14 or 15 at the time of the disclosure; however, there was significant evidence at trial that the nature of that [page811] family's complaint was not that DeLuca had sexually abused or assaulted the child in question.

[16] For 32 of the 95-page charge to the jury, the trial judge reviewed the evidence which the jury might want to consider when answering the question whether the statements made by Mr. Struk during the second broadcast were true. In so doing, she referred at length to the absence of evidence that the appellant had made a report to Board officials in 1989 regarding DeLuca's sexual abuse of a child, and she passed over what evidence there was that the appellant had made some kind of report to Board officials in 1989 regarding sexual misconduct on DeLuca's part. The word "misconduct" was replaced from time to time with more restrictive words such as "abuse""assault", or "touching". Descriptors such as "girl""child""child fourteen years old or younger" or "fourteen year-old girl" were added to restrict the type of complainant that was being referenced. The following statements by the trial judge in her charge are relevant:

For example, if you find that the Plaintiff did not report sexual abuse of a child in 1989 and did have a duty to report such allegations, you may find that the defence of justification or truth has been established . . . .

This is not an accurate statement of the question to be considered by the jury.

The Defendants submit that in 1989 Karen Pietkiewicz did not report to the Board any allegation that Ken DeLuca had committed an act of sexual misconduct in relation to a child 14 years old or younger, and that the statement by Mr. Struk that they had no such report was a true one.

There was no corresponding summary of the appellant's position relating to the truthfulness of Mr. Struk's statements.

In fact, Ms. Pietkiewicz in her evidence said that she did not disclose anything suggesting sexual misconduct to Mr. DeFazio in 1989.

When the trial judge's comments following this statement are considered, it is clear that she was focusing on the sexual assault of a child or the sexual touching of a student and was denying any significance to evidence that DeLuca may have exhibited sexual misconduct toward a student, short of an assault, or may have exhibited sexual misconduct toward the appellant herself.

Ms. Pietkiewicz said that she called Mr. DeFazio shortly afterwards to describe the assault upon her and the discussion at the meeting.

This reference to the evidence is accurate, but directly contradicts the last direction given to the jury.

The Plaintiff's position is that she was truthful when she said she reported a complaint to the Board in 1989 regarding a 14-year-old girl. [page812]

In reality, the appellant's position was that in 1989 she had reported an alleged incident of sexual misconduct by DeLuca to Board officials.

The trial judge then discussed the first broadcast, where a reporter had referred to a 14-year-old girl, implying that this reference was what Mr. Struk was responding to during the second broadcast. This was one possible finding by the jury, but not the only one. It would have had the effect of unduly restricting the jury's potential factual findings relating to the issue of the truthfulness of Mr. Struk's statements.

Ms. Pietkiewicz in her evidence given at trial did not say she reported sexual misconduct or allegations of sexual misconduct to Mr. DeFazio.

This was an unfair characterization of the appellant's evidence at trial.

The trial judge referred to s. 68(3) of the Child and Family Services Act, [^2] which read at the relevant time:

. . . a person . . . who, in the course of his or her professional or official duties, has reasonable grounds to suspect that a child is or may be suffering or may have suffered abuse shall forthwith report the suspicion and the information upon which it is based to a [Children's Aid Society] . . .

The trial judge then went on to state:

There is no dispute that, if a board employee knew that a sexual assault had occurred, that he or she would have been obliged to report it to a Children's Aid Society, and to this extent that is a true statement.

This compounded the confusion. If the "sexual misconduct" referred to by the appellant was toward an adult, and not a child, there was no reporting requirement to the Children's Aid Society. As well, the trial judge did not clarify for the jury that there was no obligation to report to the Children's Aid Society any alleged sexual misconduct toward a child 16 years of age or older who was not a ward of the society. This could have been relevant for the jury, depending on whether they found that the appellant had reported to her supervisor in 1989 an incident of sexual misconduct by DeLuca toward someone other than a child under 16 or a ward under 18 years of age.

[17] As a result of these statements by the trial judge, her charge to the jury would likely have left the jurors with the impression that: (1) Mr. Struk's words in the second broadcast could only have referred back to the [page813] reporter's statement in the first broadcast; they could not simply have referred back to the reporter's opening proposition in the second broadcast; and that (2) if the jury found that the appellant had not reported to the Board in 1989 an alleged incident of sexual abuse by DeLuca of a girl under the age of 14, Mr. Struk's statements were true, and the appellant's libel action could not succeed. Based on the evidence at trial, more choices should have been given to the jurors.

[18] It was up to the jury to decide to what the words "such reports" were referring when uttered by Mr. Struk during the second broadcast. If the jury decided that these words related to the opening comments of the reporter during the second broadcast, then the jury had to decide as a matter of fact whether the appellant had made any report to Board officials in 1989 of alleged sexual misconduct on the part of DeLuca. There was evidence at trial which could have resulted in the jury deciding that the appellant had made such a report.

[19] Although a standard of perfection is not required of a jury charge, [^3] and minor errors not creating a substantial miscarriage of justice will be overlooked, I reluctantly conclude that the trial judge's treatment in the jury charge of the issue of the truth or falsity of Mr. Struk's statements amounted to a significant error. In their factum, the respondents state: "The trial was entirely about the allegation that Pietkiewicz reported a sexual assault by DeLuca of an under 14-year-old girl to the Board, and that the Board did nothing to respond to the report." I agree. Unfortunately, and with the greatest of respect to the trial judge, this is not all that the trial should have been about. This focus did not fairly represent the words complained of by the appellant in her notice and pleadings under the Libel and Slander Act, nor did it fairly represent the appellant's position at trial.

[20] A jury decision in a defamation case is entitled to a high level of deference. Nevertheless, a jury verdict will be set aside where "the judge has misdirected the jury so that a substantial wrong or miscarriage of justice has occurred." [^4] The substantial wrong that occurred here is that the context in which the trial judge placed the words complained of, for the purpose of the jury determining their truth, unfairly portrayed the potential [page814] meaning of those words. That in turn unfairly restricted the jury's assessment of whether the words complained of were true.

[21] In essence, the jurors were not given the opportunity to perform the judicial duty assigned to them. This is not one of those cases where we can conclude that this error was harmless and did not cause prejudice to the appellant. [^5] There was evidence adduced at trial which, if believed by the jury, could have resulted in its finding that one or more of Mr. Struk's statements made during the second broadcast were false. The jury found in the appellant's favour in regard to all other findings of fact required of it. Consequently, had they found that any part or parts of the statements complained of were untrue, the appellant would have succeeded in her action.

(b) Failure of Appellant's Counsel to Object to the Charge

[22] The appellant's counsel at trial was given the opportunity to comment on the trial judge's charge to the jury, and he specifically approved it. The respondents take the position on this appeal that, since the appellant's counsel did not object at trial to the alleged misdirection or non-direction of the jury by the trial judge, the appellant cannot raise those objections now. [^6]

[23] In Arland and Arland v. Taylor, 1955 145 (ON CA), [1955] O.R. 131, [1955] 3 D.L.R. 358 (C.A.) at p. 137 O.R., Laidlaw J.A. stated:

While the failure of counsel at trial to make an objection to a charge to the jury does not in every case preclude counsel on appeal from raising the objection, it should be made plain once again that the omission of counsel at trial to make an objection to the charge must not be regarded lightly, but, on the contrary, in such a case when counsel seeks to raise the objection as a ground of appeal, a new trial cannot be granted as a matter of right, but only as a matter of discretion. A new trial should not be granted unless the Court is fully satisfied that it is necessary in the interests of justice.

[24] After reviewing earlier case law, and s. 28(1) of the Judicature Act, R.S.O. 1950, c. 190, [^7] Laidlaw J.A. went on to itemize at [page815] pp. 137-40 O.R. the general propositions that apply when it is only on appeal that the appellant first raises objections to a jury charge in a civil case:

(1) A new trial is contrary to the interest of the public and should not be ordered unless the interests of justice plainly require that to be done.

(2) An appellant cannot ask for a new trial as a matter of right on a ground of misdirection or other error in the course of the trial when no objection was made in respect of the matter at trial.

(3) A new trial cannot be granted because of misdirection or other error in the course of the trial "unless some substantial wrong or miscarriage has been thereby occasioned".

(4) A party should not be granted a new trial on the ground of non-direction in the judge's charge to the jury where, having opportunity to do so, he did not ask the judge to give the direction the omission of which he complains of. [^8]

[At pp. 140-41 O.R.]

[25] More recently, this court has had the occasion to revisit the general propositions set down in Arland, supra. In G.K. v. D.K., 1999 935 (ON CA), [1999] O.J. No. 1953, 122 O.A.C. 36 (C.A.) at paras. 16-19, [^9] Finlayson J.A. considered the principles enunciated in Arland and the wording of s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43. [^10] He denied the appellant's request for a new trial based on an allegedly faulty jury charge because he concluded that any misdirection or non-direction had not resulted in a substantial wrong or miscarriage of justice sufficient to warrant a new trial.

[26] In Marshall v. Watson Wyatt & Co. (2002), 2002 13354 (ON CA), 57 O.R. (3d) 813, 209 D.L.R. (4th) 411 (C.A.), Laskin J.A. highlighted three general considerations when an appellate court is asked to overturn the findings of a civil jury. First, the appellate court is justified in intervening only if the jury's verdict was "plainly unreasonable". Secondly, s. 134(6) of the Courts of Justice Act precludes an appellate court from ordering a new trial "unless some substantial wrong or miscarriage of justice has occurred". Thirdly, in regard to a party's failure to object to the trial judge's [page816] charge to the jury or to some other aspect of the trial proceeding, Laskin J.A. stated at para. 14:

. . . Although the failure to object at a civil trial is not always fatal to a party's position on appeal, an appellate court is entitled to give it considerable weight, indeed, ordinarily more weight than the failure to object at a criminal trial. In most civil cases where a party's failure to object is in issue, the appellant seeks a new trial because of the alleged error. For this reason, civil cases on the failure to object have typically focused on the question of whether a substantial wrong or miscarriage of justice has occurred.

[27] In Marshall, a wrongful dismissal case, the jury awarded $75,000 in punitive damages against the employer/appellant. The appellant argued that the trial judge's instructions on punitive damages were inadequate and that the employee/respondent had no legal entitlement to punitive damages on the facts of the case. This court agreed with both of these submissions. In that the court accepted that the respondent was not entitled to punitive damages, it was unnecessary for the court to decide whether it would have overlooked the inadequate jury instructions because the appellant's counsel had not objected to them at trial. The court concluded that it could not let stand an award of punitive damages to which the respondent was not legally entitled.

[28] Finally, in Brochu v. Pond (2003), 2002 20883 (ON CA), 62 O.R. (3d) 722, [2002] O.J. No. 4882 (C.A.), the unsuccessful plaintiff in a personal injury case appealed to this court based in part on alleged inadequacies in the trial judge's charge to the jury. Although her lawyer at trial had objected to various aspects of the trial judge's charge, none of the objections concerned the alleged non-directions raised on appeal. In rejecting the appellant's appeal on the ground of the trial judge's alleged non-direction to the jury, Cronk J.A. stated at para. 68:

A new trial in a civil case should not be ordered unless the interests of justice plainly require that to be done: Arland v. Taylor, supra, per Laidlaw J.A. at p. 140 O.R. While it would have been better in this case for the trial judge to have expanded upon the evidence and the linkage of the evidence to the issues, I am not persuaded that the charge was materially deficient. I agree with the respondents' submission before this court that the charge, although not a model one"got the job done". I conclude that the non-directions urged by the appellant, considered in combination and in the context of the totality of the charge and recharge, do not give rise to a serious concern as to whether the appellant received a fair trial. The charge, in combination with the recharge, contained no error, non-direction or misdirection that would justify a new trial in the interests of justice, or that occasioned a substantial wrong or miscarriage of justice.

[29] I have already found that significant errors were made in how the trial judge presented to the jury the issue of the truth or [page817] falsity of Mr. Struk's statements. This meant that the charge to the jury did not fairly or adequately explain the appellant's position at trial. The jury's finding regarding the truth or falsity of Mr. Struk's comments was the only finding adverse to the appellant; it was the finding that stood in the way of her action being successful. It was a substantial wrong for her position regarding the words complained of, and the evidence adduced at trial to support that position, not to have been adequately explained to the jury. This is one of those rare cases where, in the interests of justice, this court must exercise its discretion and allow a new trial, despite the absence of any objection to the jury charge on the part of the appellant's counsel at trial.

Conclusion

[30] The appellant brought a motion on appeal seeking to introduce further evidence by way of affidavits and transcripts. This evidence is neither relevant nor necessary for the proper determination of this appeal. As a result, the motion is denied.

[31] The appeal is allowed and a new trial is ordered.

[32] The appellant has submitted disbursements totalling $16,590.67 for consideration. The respondents' counsel does not object to $6,586.40 of those disbursements. In my view, the appellant is entitled to $8,000 in disbursements.

Order accordingly.

Notes

[^1]: See p. 122 of the trial transcript.

[^2]: Child and Family Services Act, 1984, S.O. 1984, c.55.

[^3]: R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, 143 D.L.R. (4th) 433, at pp. 320-21 S.C.R.; R. v. Evans, 1993 102 (SCC), [1993] 2 S.C.R. 629, 104 D.L.R. (4th) 200, at p. 640 S.C.R.; R. v. Demeter (1975), 1975 685 (ON CA), 10 O.R. (2d) 321, 25 C.C.C. (2d) 417 (C.A.) at p. 340 O.R., affd (1977), 1977 25 (SCC), [1978] 1 S.C.R. 538, 75 D.L.R. (3d) 251; Tsoukas v. Segura (2001), 96 B.C.L.R. (3d) 344, 2001 BCCA 664 (C.A.) at para 76.

[^4]: R.E. Brown, The Law of Defamation in Canada, 2nd ed. (Toronto: Carswell, 1999) at p. 24-1.

[^5]: In this regard, this case is distinguisable from Becker v. Alloy Harfacing & Engineering Co., 401 N.W.2d 655 (Minn. S.C., 1987).

[^6]: See Thompson v. Fraser Cos., 1929 57 (SCC), [1930] S.C.R. 109, [1929] 3 D.L.R. 778; Cousins v. Merrill (1865), 16 U.C.C.P. 114 (C.A.) at p. 120; Wills v. Carman (1889), 17 O.R. 223 (C.A.) at p. 225.

[^7]: Section 28(1) of the Judicature Act read: "A new trial shall not be granted on the ground of misdirection or the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to the jury, or by some reason of any omission of irregularity in the course of the trial, unless some substantial wrong or miscarriage has been thereby occasioned."

[^8]: This statement of principle was applied in Tsalamatas v. Wawanesa Mutual Insurance Co. (No. 2) (1982), 1982 3305 (ON CA), 141 D.L.R. (3d) 322, [1983] I.L.R. paras 1-1603 (Ont. C.A.) at p. 326 D.L.R.

[^9]: Application for leave to appeal to the S.C.C. dismissed (without reasons) April 5, 2001 [2000] S.C.C.A. No. 415.

[^10]: Section 134(6) of the Courts of Justice Act reads: "A court to which an appeal is taken shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred."