Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200212 DOCKET: M51217 (C67684)

Before: Roberts J.A. (Motions Judge)

BETWEEN:

Angelina Codina Plaintiff (Appellant/Moving Party)

and

The Canadian Broadcasting Corporation (CBC/Radio-Canada), CBC News, CBC Radio, ICI Radio-Canada, Michelle Cheung, Leva Lucs, Jean-Philippe Nadeau Defendants (Respondents/Responding Parties)

Counsel: Angelina M. Codina, acting in person Paul Davis, appearing as amicus curiae Tae Mee Park, for the responding parties

Heard: January 29, 2020

Reasons for Decision

[1] The moving party moves for an extension of time to perfect her appeal from the October 17, 2019 dismissal of her defamation action following a successful s. 137.1 (“Anti-SLAPP”) motion brought by the responding parties and from the corresponding costs endorsement. The responding parties oppose the moving party’s motion, submitting that she meets none of the well-established criteria for an extension of time.

[2] These well-established criteria include:

i. the continuing intention to appeal during the period required for perfection; ii. the length of and explanation for the delay; iii. the prejudice to the respondent; and iv. the merits of the appeal.

The overarching consideration is whether the justice of the case requires the extension. See Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 4; Auciello v. Mahadeo, 2016 ONCA 414, at para. 12.

[3] I agree with the responding parties’ position. I am not persuaded that the justice of the case warrants the requested extension.

[4] While the moving party had the requisite intention to commence her appeal in a timely manner, her subsequent actions demonstrate a concerted effort to delay the perfection of the appeal and belie a continuing intention to appeal. First, she failed to file her motion to extend the time to perfect her appeal before the expiry of the prescribed deadline under r. 61.09(1) the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the Registrar’s extended deadline. Second, instead of perfecting her appeal, she served a supplemental notice of appeal and notice of a constitutional question with her notice of motion for an extension of time, which raised new issues not before the motion judge. Third, she asked the responding parties to agree to a lengthy extension until May 30, 2020 without a valid explanation. The moving party requested a similar lengthy time extension on the motion (March 31, 2020).

[5] The moving party has failed to provide an adequate explanation for the delay in perfecting her appeal. Her submissions that she had to care for her ill mother and deal with other legal proceedings in which she is involved are vague. She offers no concrete particulars explaining why she could not perfect her appeal within the statutory deadline or the Registrar’s extended deadline. If she had the time to prepare the detailed supplemental notice of appeal and notice of a constitutional question, as well as the voluminous motion record for this motion, it is not clear why she did not have time to perfect her appeal. Again, the moving party’s actions denote an intention to delay the perfection of this appeal.

[6] The responding parties are prejudiced by the moving party’s delay. The responding parties had an expectation that the moving party’s appeal from the granting of their s. 137.1 motion would be heard “as soon as practicable” after perfection, as required under s. 137.3 of the Courts of Justice Act, R.S.O. 1990, c. C.43. This expectation is undermined by the moving party’s delay. Instead of perfecting her appeal, the moving party created further delay by serving a supplemental notice of appeal and notice of a constitutional question, raising new issues that were not before the motion judge. The moving party’s proposed expanded proceedings will engender not only significant delay but the prejudice of significant costs that the responding public corporation and the individual responding parties will likely never recover from the moving party, who claims impecuniosity and has failed to pay the myriad judgments against her. See Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828, 57 C.C.L.I. (5th) 275, at para. 16.

[7] Turning to the merits of the moving party’s appeal, including her notice of a constitutional question and costs appeal, I see little chance of success. A lack of merit alone suffices to deny the requested extension: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 16; Nguyen, at para. 13.

[8] Some further context on this point is necessary. The moving party commenced an action against the responding parties for general and punitive damages for defamation arising out of the responding parties’ publication of various news reports. The news reports concerned numerous civil and criminal proceedings brought against the moving party.

[9] The responding parties successfully brought a motion to dismiss the moving party’s action under s. 137.1 of the Courts of Justice Act. The moving party filed no evidence to support her allegations of harm and had not met her onus of proving that there were no valid defences to her claim. The motion judge determined that the news reports were in the public interest and the responding parties had valid defences to the action based on justification, fair comment, responsible communication, privilege, and the expiry of the relevant limitation periods. He also found that the moving party’s damages, if any, were inconsequential. The motion judge granted costs on a full indemnity basis to the responding parties in the amount of $31,761.14. The moving party provided no costs submissions.

[10] The moving party’s attack on the motion judge’s decision primarily amounts to a request to rehear the s. 137.1 motion and does not articulate any arguable, reversible error. The motion judge correctly applied the test set out in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, leave to appeal granted and appeal heard and reserved November 12, 2019, [2018] S.C.C.A. No. 467 and Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60, leave to appeal granted and appeal heard and reserved November 12, 2019 [2018] S.C.C.A. No. 466. His conclusions are well-grounded in the record before him and were open to him.

[11] The moving party further contends that the motion judge erred by failing to address her argument that the February 27, 2018 article, containing a hyperlink to a previous article about criminal charges brought against her, was misleading and untrue because the charges had been withdrawn in 2015. She also submits the motion judge erred in finding that her damages would be minimal given that general damages, as the motion judge noted in his reasons, are presumed.

[12] These submissions have little merit and would not change the outcome of the motion.

[13] First, the motion judge expressly considered all the news reports, including the February 27, 2018 article with the hyperlink. The statement about the charges was not free-standing but a hyperlink to a previous article that the motion judge determined was subject to the defences of justification, responsible communication, and fair comment.

[14] Second, in determining the s. 137.1 motion, the motion judge was required to decide under s. 137.1(4)(b) whether the moving party’s alleged damages from the responding parties’ new reports outweighed the harm to the public interest in protecting the responding parties’ expression. The moving party filed no evidence concerning any harm. Notwithstanding the presumption of damages, in the absence of any evidence from the moving party, it was open to the motion judge to find that the moving party’s damages from the publication of all the news reports, including the impugned February 27, 2018 article containing the hyperlink, were minimal and could not outweigh the public interest in the responding parties’ expression.

[15] I see no merit in the moving party’s notice of a constitutional question claiming that s. 137.1 violates her rights under ss. 2, 7 and 11 of the Canadian Charter of Rights and Freedoms. This court has already determined that no s. 7 interest is affected by this provision: see Platnick, at paras. 118-126. Further, the moving party’s contention that s. 137.1 curtails the right to the freedom of expression, as protected by s. 2(b) of the Charter, is belied by the stated purposes of the Anti-SLAPP legislation set down in s. 137.1(1). The purposes stated in s. 137.1(1) “leave no doubt that the legislation was intended to promote free expression on matters of public interest by ‘discouraging’ and ‘reducing the risk’ that litigation would be used to ‘unduly’ limit such expression”: 1704604 Ontario Ltd., at para. 37. The moving party’s s. 11 Charter claim equally lacks merit because she has failed to particularize how the rights of a person charged with a criminal or quasi criminal offence has any application to a civil defamation case between private litigants.

[16] The moving party’s costs appeal, included in her supplementary notice of appeal, is also devoid of merit. I see no reversible error in the motion judge’s costs award. In fixing costs, the motion judge properly exercised his discretion under s. 137.1(7) of the Courts of Justice Act and r. 57.01 of the Rules of Civil Procedure and considered the relevant factors.

[17] For these reasons, the motion is dismissed.

[18] The responding parties are entitled to their partial indemnity costs from the moving party in the amount of $1,600, including disbursements and applicable taxes.

“L.B. Roberts J.A.”