COURT OF APPEAL FOR ONTARIO
MacPherson, Cronk and Gillese JJ.A.
BETWEEN
David Midanik
Plaintiff (Appellant)
and
Betsy Powell and John Wiley & Sons Canada Limited
Defendants (Respondents)
William C. McDowell, for the appellant
Joseph Groia and Martin Mendelzon, for the respondent Betsy Powell
Richard G. Dearden and Anastasia Semenova, for the respondent John Wiley & Sons Canada Limited
Heard: May 22, 2015
On appeal from the judgment of Justice James M. Spence of the Superior Court of Justice, dated October 9, 2014.
ENDORSEMENT
1The appellant David Midanik appeals from the judgment of Spence J. of the Superior Court of Justice dated October 9, 2014, dismissing Midanik’s action against Betsy Powell, the respondent author, and John Wiley & Sons Canada Limited, the respondent publisher.
2Midanik’s defamation action was grounded in a book written by Powell and published by Wiley Co. The book was titled Bad Seeds – The True Story of Toronto’s Galloway Boys Street Gang. Midanik first appears at page 160 of the book, introduced as defence counsel for an accused murderer and member of the gang. At p. 161, Powell wrote:
He also, by his own admission, was someone who didn’t work well with others. He said he identified with the character Tuco in director Sergio Leone’s 1966 Italian spaghetti western classic, The Good, the Bad and the Ugly. Midanik told me the loutish outlaw Tuco (the Ugly) said in the movie: “I like big men because when they fall, they fall hard.” (The actual line is: “I like big fat men like you. When they fall they make more noise.”) In any event, noise is what Midanik was known for making, prompting Dambrot, in one of his numerous pre-trial rulings, to refer to him, with considerable understatement, as “no shrinking violet.”
3Midanik decided to sue the respondents in defamation for this passage. In his Amended Statement of Claim, he claimed:
- The plaintiff claims false and defamatory innuendo created by the defamatory words set out in paragraph 5, which taken in the context of the book as a whole, in their natural and ordinary meaning were meant and were understood to mean any or all of the following, which are defamatory of the plaintiff:
(a) the plaintiff is a hardened criminal;
(b) the plaintiff is a murderer;
(c) the plaintiff is a rapist;
(d) the plaintiff is a thief;
(e) the plaintiff is ugly;
(f) the plaintiff is immoral;
(g) the plaintiff is violent;
(h) the plaintiff is not a good lawyer;
(i) the plaintiff is dishonest;
(j) the plaintiff is a psychopath; and
(k) the plaintiff is sleazy.
[Emphasis in original.]
4The respondents moved for summary judgment dismissing the action. The motion judge accepted their argument. He reasoned:
Because the Plaintiff has pleaded that the natural and ordinary meaning of the words in paragraph 5 is defamatory, the court cannot consider any extrinsic facts in determining whether the words are capable of the meanings pleaded at paragraph 7. It was submitted for the plaintiff that the reference in the words in paragraph 5 to “Tuco” and the movie “The Good, the Bad and the Ugly” effectively incorporated by reference into paragraph 5 the movie and its portrayal of the character “Tuco” in the movie.
However, a reasonable and fair reader of the words in paragraph 5 would not consider that the references to Tuco and the movie had that effect. The statement in paragraph 5 is that the plaintiff self-identified with Tuco, who said he liked big men because they fell hard”. The statement in paragraph 5 that the words of the Plaintiff would not suggest that to the reasonable and fair-minded reader that the author was saying that the Plaintiff identified with “Tuco” in any other way. Indeed, a reasonable and fair minded reader would not think that the author was saying that the Plaintiff had said he identified with the offensive characteristics of “Tuco” in the movie, which are apparently the source of virtually all of the alleged meanings in paragraph 7.
5The appellant appeals on four grounds.
6First, the appellant contends that the motion judge erred in his defamation analysis. The appellant asserts that the impugned passage in the book is defamatory on its face, suggesting that Midanik is a criminal, immoral, and a violent person.
7We disagree. In his pleading (para. 7), Midanik focussed on the words in the book “in their natural and ordinary meaning”. The relevant words tied to Midanik’s approbation are Taco’s words “I like big men because when they fall, they fall hard.” These words, read as a whole and in context, are far removed from the meaning suggested by Midanik in paragraph 7 of his Statement of Claim. As the motion judge said: “The words complained of …are not capable of bearing those defamatory meanings.”
8Second, the appellant asserts that the motion judge erred by not considering the ‘true innuendo’ category of interpretation of allegedly defamatory statements. As expressed in his factum (para. 35): “In this case, Mr. Midanik expressly pleaded a false innuendo but also pleaded all of the extrinsic facts and circumstances necessary for understanding the true innuendo.”
9We do not accept this submission. The motion judge did not need to consider this category because Midanik’s counsel on the motion (not appellate counsel) specifically disclaimed reliance on it, even employing a heading in his motion factum saying “The innuendos are false, not true.”
10Third, the appellant submits that the motion judge should have granted leave to amend his pleading rather than dismiss the action.
11We disagree. This was a summary judgment motion, not a motion to strike pleadings. Moreover, at no time during the summary judgment proceeding did the appellant request leave to amend his Amended Statement of Claim to plead true innuendo and the extrinsic facts that would support the special meanings that he was a murderer, rapist, thief and the other extreme meanings pleaded in para. 7 of the Amended Statement of Claim.
12Fourth, the appellant contends that the motion judge erred by awarding substantial indemnity costs to both respondents for both the motion and the action.
13The motion judge reasoned: “On the motion for summary judgment the defendants made Rule 49 offers. Costs on the substantial indemnity scale are warranted.”
14With respect, this passage reflects a misunderstanding of the Defendant’s Offer branch of Rule 49, which says nothing about substantial indemnity costs. Nor can the respondents bring themselves within the case law dealing with substantial indemnity costs for a successful defendant.
15This conclusion requires an adjustment in the motion judge’s costs award. The result of the summary judgment motion was not surprising. In our view, this defamation action was ill-conceived. After reviewing Rules 49 and 57, the record for the action and the summary judgment motion, and the parties’ costs submissions and supporting documentation, we would award costs to the respondents of the action and motion on a partial indemnity basis as follows:
John Wiley & Sons
Motion - $17,000
Action - $60,000
Betsy Powell
Motion - $17,000
Action - $7,500
16The appeal is allowed in part, but only to change the costs awards as described above. In all other respects, the appeal is dismissed.
17The parties agree that costs of the appeal should be awarded to the respondents in the amounts of $18,100 for John Wiley & Sons and $17,400 for Betsy Powell, inclusive of disbursements and applicable taxes.
“J.C. MacPherson J.A.”
“E.A. Cronk J.A.”
“E.E. Gillese J.A.”