2018 ONSC 6928

DIVISIONAL COURT FILE NO.: 728/17

DATE: 20181119

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: GUNNAR S. PAULSSON, Moving Party

AND: LEO COOPER, The Board of Trustees of and for the University of Illinois, the American Association for the Advancement of Slavic Studies, Respondents

BEFORE: Lococo, Trimble, and Myers JJ.

COUNSEL: Gunnar S. Paulsson, in person Gordon McGuire, for the Respondents

HEARD at Toronto: November 19, 2018

ENDORSEMENT

MYERS, J. (Orally)

[1] Mr. Paulsson asks this court to review and set aside the Order of Sachs J. sitting as a single judge of this court dated February 7, 2018.

[2] In her order, Justice Sachs refused to extend the time for Mr. Paulsson to deliver his notice of appeal. Mr. Paulsson wishes to appeal a judgment dated February 18, 2015, granted by D. Wilson J. dismissing Mr. Paulsson’s defamation claim against the respondents. Justice Wilson dismissed the action after trial before a jury.

[3] Mr. Paulsson claimed that he was defamed in a negative review published in a periodical by the respondents concerning a book written by Mr. Paulsson. The jury held that Mr. Paulsson had not been defamed by the respondents. It assessed no general damages but would have awarded punitive damages of $5,000 against the respondents had Mr. Paulsson succeeded in his claim.

[4] Mr. Paulsson argues that the jury’s holding that the book review was not defamatory was so unreasonable as to be reversible on appeal despite the high burden faced by appellants who challenge civil jury verdicts. He argues that a negative book review must be defamatory in the legal sense of diminishing the author in the eyes of a reasonable reader of the review. He argues that the trial judge erred in her charge to the jury based on misstatements of the law committed by counsel for the respondents.

[5] However, Mr. Paulsson waited over two years before coming forward with his proposed appeal. At first, he tried to appeal to the Court of Appeal. However, that court held that considering the small amount of damages assessed, the proper appeal route is to this court.

[6] Justice Sachs heard the motion to extend time in this court. She applied the correct legal test to the motion as discussed by the Court of Appeal in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131. She found that Mr. Paulsson had failed to adequately explain his two year delay in moving. She also did not accept that Mr. Paulsson established that he was likely to succeed on the appeal. After reviewing all four components of the legal test, Justice Sachs took a step back and weighed all the factors to assess the overall justice of the case. In her judgment, “the justice of the case does not require that an extension be given.”

Jurisdiction

[7] Pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, a panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion. Mr. Paulsson also argues that it would be most efficient and just were the panel simply to decide the appeal on this motion. Considering the view of the motion that I take, it is not necessary to consider this request. But I note that the appeal is not before us. The respondents have yet to have the opportunity to respond on the merits in any event.

Standard of Review

[8] On a motion under s. 21(5) of the CJA, the panel will only intervene to vary or set aside the order of a single judge if he or she made an error of law or a palpable and overriding error of fact Marsden v. Her Majesty the Queen, 2012 ONSC 6118 (Div. Ct.).

Analysis

[9] Justice Sachs’ finding that Mr. Paulsson had not explained his two year delay was available to her on the evidence. Similarly, Justice Sachs reviewed the jury charge and rejected Mr. Paulsson’s submission that the judge’s charge would cause the verdict to be set aside on appeal. She held that “[r]ead as a whole and in context, the charge does not disclose an error that resulted in ‘a substantial wrong or miscarriage of justice’.” That finding is one of mixed fact and law. It was based on the correct legal test and was also open to Sachs J. on the material before her.

[10] Mr. Paulsson objects to submissions made to the judge at trial as to the definition of defamation. However, Justice Sachs looked at the charge to the jury in light of this argument and found that Mr. Paulsson could not meet the applicable threshold for appeal. Having reviewed the charge, I see no reason to disagree with that conclusion.

[11] Of greatest significance, in my view, Justice Sachs understood that the essence of the motion is one in which she was called upon to exercise her judgment and judicial discretion to assess the overall justice of the case. The court will defer to a judge’s exercise of discretion unless it was based on a wrong principle or was clearly wrong. Justice Sachs considered the effect of delay, the lack of a valid excuse for the delay, and the weakness of the merits of the appeal in light of the high burden applicable, and determined that the justice of the case did not favour an extension of time in this case. That was a decision that was properly for her to make and I see no error of principle in her approach. Neither was she clearly wrong. Rather, I respectfully agree with her.

[12] The motion is therefore dismissed. For greater clarity, this includes the notice of motion contained in the supplementary motions record to treat this hearing as the main appeal.

Lococo J:

[13] I have endorsed the record, “For the reasons dictated orally today by Myers J., the motion is dismissed. The applicant shall pay costs of $3,102.90 inclusive of disbursements and taxes to the respondents jointly and severally.”

Myers J.

I agree _______________________________ Lococo J.

I agree _______________________________ Trimble J.

Date of Endorsement: November 19, 2018

Date of Release: November 20, 2018