Siddiqui v. Canadian Broadcasting Corporation et al. [Indexed as: Siddiqui v. Canadian Broadcasting Corp.]

50 O.R. (3d) 607

[2000] O.J. No. 3638

Docket No. C33725

Court of Appeal for Ontario

Catzman, Abella and Rosenberg JJ.A.

October 4, 2000

*Application for leave to appeal to the Supreme Court of

Canada dismissed with costs May 3, 2001 (McLachlin C.J.,

Iacobucci and Bastarache JJ.). S.C.C. File No. 28300. S.C.C.

Bulletin, 2001, p. 805.

**Vous trouverez traduction française de la décision ci-dessous à 2000 29046 (ON CA), 50 O.R. (3d) 616.

Torts -- Defamation -- Libel -- Notice -- Plaintiff must give prior notice of matter complained of before commencing action -- Failure to give proper notice absolute bar -- Plaintiff's action dismissed for failing to "specify the matter complained" -- Libel and Slander Act, R.S.O. 1990, c. L.12, s. 5(1).

On May 30, 1995, the CBC broadcast a documentary about the alleged mismanagement of the funds of a charity. During the broadcast, allegations were made about the plaintiff S and the travel agency she operated. The allegations concerned improprieties about charges for airline tickets. On June 9, 1995, S's lawyer sent a letter to TD, who produced the show, and to PVD, who hosted it. The letter stated the show was slanderous. On June 30, 1995, by statement of claim, S sued TD and PVD and also the CBC; M and A, who were employees of the charity; BT Ltd., another travel agency, and D, who was its manager. On July 3, 1995, the lawyer for the CBC received the statement of claim and a more detailed letter from S's lawyer. Between July 4 and July 7, PVD, A, D and M received the statement of claim and a very detailed letter describing the libel. TD received a copy of the statement of claim from a lawyer acting for CBC.

The defendants brought a motion for an order dismissing the action against them on the grounds that the written notices did not comply with s. 5(1) of the Libel and Slander Act, which provides that no action for libel in a broadcast lies unless the plaintiff, within six weeks after the alleged libel has come to the plaintiff's knowledge, gives notice in writing to the defendant "specifying the matter complained of". Panet J. dismissed the action against PVD, M, A, D and BT Ltd. because their written notices were served after the issuance of the statement of claim. Panet J. held that the action against the CBC and TD could proceed because the letter of June 9, 1995 was adequate written notice under s. 5(1) received before the statement of claim was issued. The CBC and TD appealed, and S cross-appealed the dismissal of the action against the five other defendants.

Held, the appeal should be allowed; the cross-appeal should be dismissed.

Panet J. correctly held that, under s. 5(1) of the Libel and Slander Act, an action for libel requires prior written notice and the failure to comply with s. 5(1) constitutes an absolute bar, not a mere irregularity. Accordingly, S's cross-appeal should be dismissed with respect to the five defendants who received their notices after the issuance of the statement of claim. An action for libel cannot be brought unless the defendants have first been properly served with written notice specifying the words and matter complained. The prior notice provides the defendant with an opportunity to correct, retract, justify, apologize or otherwise consider what mitigating steps are appropriate. The notice must make a defendant clearly aware of the essence of the case it has to meet and have an opportunity to meet it before an action for libel is commenced. The issue in every case is whether the written notice provides enough clear information for an appropriate response to be considered and taken. The plaint iff's letter of June 9, 1995 was too general to satisfy the requirements of s. 5(1). Based on its sweeping condemnation, the CBC and TD would have been under the mistaken impression that everything about S in the broadcast was being complained of, but the subsequent detailed letter revealed that this was not the case. Since the s. 5(1) requirements of written notice prior to the commencement of the action had not been met, the action against CBC and TD should have been dismissed. Accordingly, their appeal should be allowed.

APPEAL and CROSS-APPEAL with respect to a motion to have an action for libel dismissed for failure to give notice under s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12

Cases referred to Grossman v. CFTO-TV Ltd. (1982), 1982 1768 (ON CA), 39 O.R. (2d) 498, 139 D.L.R. (3d) 618 (C.A.) Statutes referred to Libel and Slander Act, R.S.O. 1990, c. L.12, s. 5(1) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 16

Robert MacKinnon, for appellants/respondents by cross-appeal. Heather J. Williams, for respondent/appellant by cross- appeal.

The judgment of the court was delivered by

[1] ABELLA J.A.: -- On May 30, 1995, the CBC broadcast a documentary about CARE Canada. The segment was a journalistic investigation into alleged mismanagement of funds at the charity. In the course of the broadcast, statements were made about Salma Siddiqui and Jet Set Travel, the travel agency she operated. As a result of the program, Ms. Siddiqui's lawyer sent a letter by courier on June 9, 1995 to Trish Dyer, who produced the show, and Peter Van Dusen who hosted it, care of the Canadian Broadcasting Corporation. The letter states:

Canadian Broadcasting Corporation 250 Lanark Road Ottawa, Ontario K1Z 6R5

Attention: Trish Dier [sic] and Peter van Dusen [sic]

Dear Ms. Dier and Mr. van Dusen:

Re: CBC -- CARE Canada Broadcast

We act as solicitors on behalf of Salma Siddiqui. We have had an opportunity to review the Canadian Broadcasting Corporation broadcast of May 30, 1995 regarding CARE Canada.

The broadcast was slanderous. The reputation of our client, Salma Siddiqui, has been severely damaged which appeared to be the clear intent of the broadcast. This letter shall serve as notice to both of you personally and to the Canadian Broadcasting Corporation of Ms. Siddiqui's intention to commence legal proceedings against you.

Please have your legal counsel contact the undersigned.

[2] Ms. Dyer received the letter through inter-office mail at the CBC around June 12, 1995. Mr. Van Dusen never got the letter.

[3] The issue in this appeal is whether s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12, has been complied with. This section states:

5(1) No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff's knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.

[4] On June 30, 1995, counsel for Ms. Siddiqui issued a statement of claim naming, in addition to Ms. Dyer and Mr. Van Dusen: the Canadian Broadcasting Corporation; David Melvill and Hector Almendrades, two former employees of CARE Canada; Monique Doré, the manager of Bytown Travel Limited, an Ottawa travel agency; and Bytown Travel Limited. Mr. Melvill, Mr. Almendrades and Ms. Doré were interviewed in the documentary.

[5] In a telephone conversation on June 27, 1995 with Ms. Siddiqui's lawyer, a lawyer for the CBC agreed to accept service of a more detailed letter and a statement of claim. The CBC lawyer received both the statement of claim and the letter on July 3, 1995.

[6] Between July 4 and July 7, 1995, the defendants Hector Almendrades, Monique Doré and David Melvill were served with the statement of claim and a letter itemizing the alleged libel. Copies of the statement of claim and a similarly detailed letter outlining the libellous content were served on Mr. Van Dusen between July 4 and July 7, 1995. Ms. Dyer received her statement of claim from a lawyer acting on behalf of the CBC.

[7] The documentary was introduced by Wendy Mesley, who described it as "a special documentary investigation into the operations of one of this country's leading charities". Ms. Mesley told viewers that what they were about to see was the discovery by CBC of "disturbing information about the way CARE handles public money, millions of dollars a year. There are allegations of misspent donations and lavish spending." The core of the program dealt with allegations that CARE Canada's campaign for money to provide famine relief in 1992 for Somalia did not reach its stated target.

[8] In the course of the allegations of mismanagement, the following references were made to Ms. Siddiqui. I have italicized those portions of the transcript about which Ms. Siddiqui complained in the more detailed letters sent to the defendants after the statement of claim had been issued:

PETER VAN DUSEN: . . . To get to the world's trouble spots and conferences, CARE spends millions of dollars a year. And for the past seven years, despite repeated complaints from its own employees, CARE has given all that business to one tiny travel agency in downtown Ottawa. Jetset Travel is run by this woman, Selma Sidhiki [sic]. And as you'll hear, when it comes to Jetset's prices, the sky is the limit.

HECTOR ALMONDROTTI [sic]: It made no sense to me so I didn't --

PETER VAN DUSEN: Hector Almondrotti grew up in a shanty town in Lima, Peru. Almondrotti worked for the Canadian government in the poorest corners of South America for 12 years, and he knows the value of a dollar. Almondrotti joined CARE Canada in 1988 and before long he had serious questions about Jetset Travel.

HECTOR ALMONDROTTI: In one case, I found a local agency in Ottawa that offered me a trip to -- I think it was in Central America -- much less expensive than that of Jetset. But I was told not to use that travel agency because Jetset was the official agency. Many people didn't feel comfortable with the agency, but those were the orders. We had to go with one agency. And so no matter how much you complained, that was it.

PETER VAN DUSEN: What happened when you complained?

HECTOR ALMONDROTTI: Oh, somebody from the finance department came over to tell me that no, I'm not allowed to use any other agency, that it was the agency to use and that was it.

PETER VAN DUSEN: November 1992, you're getting set to go where?

DAVID MELVILLE [sic]: . . . In November '92 with my family --

PETER VAN DUSEN: Remember former CARE employee David Melville? He also had concerns about Jetset prices. In fact, Melville was so astounded by the cost of that flight to Africa, he kept the plane tickets supplied by Jetset -- plane tickets priced at nearly $6,000 each.

DAVID MELVILLE: Many weeks before, I'd asked the same travel agent for a personal travel ticket to South Africa which she had given me a figure of roughly $1,500 per person.

PETER VAN DUSEN: We asked other travel agents to examine Melville's tickets, and what they told us raised serious questions about the way Jetset Travel does business. The letter "M" on Melville's ticket means the travel agent bought and paid for an excursion fare, or discount ticket. However, the letter "S" means the agent charged a full fare economy rate. Total price, $5,974. Now, does it mean that the customer paid more than he should have?

TRAVEL AGENT: It tends -- it leads me to believe that he did.

PETER VAN DUSEN: Could that have happened by mistake?

TRAVEL AGENT: No. Somebody put that in that way. You just overwrite everything that the computer tells you the fare should be. You tell it what you want it to be.

PETER VAN DUSEN: In fact, we were told David Melville's seat was worth less than half of the price on that ticket. So why would CARE Canada pay inflated ticket prices and give all its business to one travel agent despite complaints about prices from its own employees?

DAVID MELVILLE: My worst fear is that somebody is making money out of what in effect is public money.

PETER VAN DUSEN: This employee has the same fear, and says it is almost impossible to find out how much CARE Canada is paying for any airline ticket.

VOICE OF CARE EMPLOYEE 1: Only Jetset knows what they're asking and what they're getting. We get a rebate from Jetset on the tickets, and these rebates are not recorded in the proper way. We do not know where the money goes.

PETER VAN DUSEN: Air Canada is also having problems with Jetset's prices. The airline is in the process of suing Selma Sidhiki. It is accusing Jetset and Sidhiki of offering unauthorized discounts on Air Canada flights. The airline has also revoked Jetset's authorization to sell Air Canada tickets. Cut off from booking seats on the country's biggest airline, Selma Sidhiki closed down Jetset Travel on March 13th, but she is not out of the business. Selma Sidhiki has gone to work at another travel agency, one that is still permitted to sell Air Canada tickets, and she's taken CARE Canada's considerable business with her.

[9] The defendants brought a motion for an order dismissing the action against them on the grounds that the written notices did not comply with s. 5(1) of the Libel and Slander Act. In particular, the adequacy of the information in the June 9, 1995 letter was challenged by Ms. Dyer and the CBC, and the timeliness of the notice received after the statement of claim had been issued, was challenged by all the defendants.

[10] The motion was heard by Justice Panet. He dismissed the action against Peter Van Dusen, David Melvill, Hector Almendrades, Monique Doré and Bytown Travel Limited because they were served with written notice of the allegations of libel after the issuance of the statement of claim, contrary to the prohibition in s. 5(1) preventing an action for libel unless there has been prior written notice. He noted, correctly in my view, that failure to comply with the requirements in s. 5(1) constitutes an absolute bar, not a mere irregularity.

[11] Justice Panet also rejected the submission of the plaintiff that since a lawyer for the CBC had agreed on June 27, 1995 to accept service of a more detailed notice and a statement of claim, the CBC was thereby estopped from arguing that notice was not in compliance with s. 5(1) of the Act. In my view, he was correct in rejecting this argument.

[12] Justice Panet, however, dismissed the motion to dismiss the action with respect to the CBC and Ms. Dyer. He concluded that they had received their s. 5(1) notice in a timely manner, having received the June 9, 1995 letter before the statement of claim was issued on June 30, 1995 and within six weeks of the alleged libel.

[13] He also concluded that the information contained in the June 9, 1995 letter satisfied the notice requirements in s. 5(1). The submission of the CBC and Ms. Dyer had been that the June 9, 1995 letter did not constitute proper notice because the alleged libel was not sufficiently identified. In rejecting their submission, Justice Panet found the notice to be adequate because it identified the date of the broadcast, the subject- matter, and stated that the reputation of the plaintiff was severely damaged. There being only three references to the plaintiff in the broadcast and since the broadcast itself was not a long one, Justice Panet held that the defendants CBC and Trish Dyer ". . . could not possibly have been prejudiced or confused by the notice which they received".

[14] This is an appeal from that order by the CBC and Ms. Dyer. They submit that the information contained in the June 9, 1995 letter was too vague, lacked specificity and failed to identify the allegations complained of.

[15] The plaintiff, Salma Siddiqui, cross-appealed Justice Panet's dismissal of the action against the five remaining defendants, Peter Van Dusen, David Melvill, Hector Almendrades, Monique Doré and Bytown Travel Limited, arguing that the notices were timely because they were sent within six weeks of the alleged libel coming to the plaintiff's attention.

[16] There is no jurisprudential doubt that an action for libel cannot be brought unless the defendants have first been properly served with written notice specifying the words and matter complained. The reason such notice must precede the commencement of the action is to give a defendant an opportunity to correct, retract, justify, apologize for, or otherwise consider what mitigating steps are appropriate.

[17] In Grossman v. CFTO-TV Ltd. (1982), 1982 1768 (ON CA), 39 O.R. (2d) 498 at p. 505, 139 D.L.R. (3d) 618 (C.A.), Cory J.A. held that the s. 5(1) written notice must make a defendant "clearly aware" of the matter about which the plaintiff complains. There must, in other words, be more than technical compliance with the notice requirement.

[18] It is true that s. 5(1) does not stipulate what form a written notice must take, but it is also true that the section provides that the written notice must "specify" the matter complained of. This means that a defendant is entitled to know with clarity the essence of the case it has to meet and have an opportunity to meet it before an action for libel is commenced. The denial of sufficient particularity constitutes a denial of that opportunity. The issue in every case, therefore, is whether the written notice provides enough clear information for an appropriate response to be considered and taken.

[19] The letters sent to the defendants at the end of June and received by them in early July along with the statement of claim, were extremely specific. The letter to Monique Doré, for example, reflects the specificity available from the 17-page transcript of the documentary. It is set out below to contrast its clarity with the generalities found in the June 9, 1995 letter:

June 26, 1995

Dear Ms. Dore:

Re: Siddiqui v. CBC et al.

Further to our letter of June 9, 1995, I confirm that we act as solicitors on behalf of Salma Siddiqui. This letter shall serve as notice to you pursuant to section 5(1) of the Libel and Slander Act of Ms. Siddiqui's claim for damages for defamation. Your statements giving rise to Ms. Siddiqui's action are set out below:

Peter van Dusen [sic] To get to the world's trouble spots and conferences, CARE spends millions of dollars a year. And for the past seven years, despite repeated complaints from its own employees, CARE has given all that business to one tiny travel agency in downtown Ottawa. Jet Set Travel is run by this woman, Salma Siddiqui. And as you'll hear, when it comes to Jet Set's prices the sky is the limit.

Hector Almendrades In one case, I found a local agency in Ottawa that offered me a trip to -- I think it was Central America -- much less expensive than that of Jet Set. But I was told not to use that travel agency as Jet Set was the official travel agency. Many people didn't feel comfortable with the travel agency, but those were the orders. We had to go with one travel agency. And no matter how much you complained, that was it.

Peter van Dusen Remember former CARE employee David Melvill? He also had concerns about Jet Set prices. In fact, Melvill was so astounded by the cost of that flight to Africa, he kept the plane tickets supplied by Jet Set Travel -- plane tickets priced at nearly six thousand dollars each.

David Melvill Only weeks before I had asked the same travel agent for a personal travel ticket to South Africa which she had given me a figure of roughly fifteen hundred dollars per ticket.

Peter van Dusen We asked other travel agents to examine Melvill's tickets and what they told us raised serious questions about the way Jet Set Travel does business.

The letter "M" on Melvill's ticket means the travel agent bought and paid for an excursion fare, or discount ticket. However, the letter "S" means the agent charged a full fare economy rate -- total price five thousand nine hundred and seventy four dollars.

Does it mean that ah the customer paid more than he should have?

Monique Dore It tends -- it leads me to believe that he did.

Peter van Dusen Could that have happened by a mistake?

Monique Dore No, somebody put that in that way. You just override everything the computer tells you the fare should be. You tell it what you want it to be.

Peter van Dusen In fact, we were told David Melvill's seat was worth less than half the price on the ticket. So why would CARE Canada pay inflated ticket prices and give all its business to one travel agent, despite complaints about prices by its own employees?

David Melvill My most worst fear is that someone is making money out of what, in effect, is public money.

Peter van Dusen This employee has the same fear, and says it is almost impossible to find out how much CARE Canada is paying for any airline ticket.

Anonymous Employee Only Jet Set knows what they are asking and what they're getting.

The statements set out above are all the more damaging when viewed in the context of the complete broadcast regarding CARE Canada.

Should further particulars of Ms. Siddiqui's complaint be required at this time, please have a representative contact the undersigned.

[20] By contrast, it is difficult to see how Ms. Dyer or the CBC could properly respond to a letter as general as the one sent on June 9, 1995. Based on the sweeping condemnation in the June 9, 1995 letter, the CBC and Ms. Dyer would have been under the mistaken impression that everything about Ms. Siddiqui in the documentary was being complained of. Yet in her detailed letter to the defendants, as well as in her statement of claim, the plaintiff did not complain about all of the statements made either about her or her travel agency. The plaintiff did not complain, for example, about statements dealing with a lawsuit initiated by Air Canada arising from problems with Jet Set's prices and unauthorized discounts on Air Canada flights.

[21] There were several hundred words in the documentary about the plaintiff. The defendants were entitled to know which of them were alleged to be libellous. In the absence of specificity, their ability to consider what response or responses were appropriate, was fundamentally impaired. The generalities in the June 9, 1995 letter cannot, therefore, be said to satisfy the notice requirements contemplated by s. 5(1).

[22] Since the s. 5(1) requirement of written notice prior to the commencement of an action was not met, the action should be dismissed as against the appellants CBC and Trish Dyer.

[23] In view of this conclusion it is not necessary to address fully the appellants' argument that service of the June 9, 1995 letter to the CBC and Trish Dyer was defective on the grounds that, contrary to s. 5(1), it was not served ". . . in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant." The service was defective, in my view, because Rule 16 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides for service of a statement of claim, was not complied with. Ms. Dyer got the letter through inter-office mail, and there is no affidavit of service to explain how the CBC got its copy. This flaw in the service of the notice, however, is not determinative given my conclusion about the inadequacy of the content of the notice.

[24] The appeal is therefore allowed, the order of Justice Panet dismissing the motion to dismiss the action against the Canadian Broadcasting Corporation and Trish Dyer is set aside, and the motion of the CBC and Ms. Dyer for a dismissal of the action as against them is granted.

[25] As I indicated earlier, I agree with Justice Panet's conclusion that because the written notice with respect to the five remaining defendants was not served prior to the issuance of the statement of claim, a condition precedent in s. 5(1) had not been met and the action against them therefore cannot be maintained. The fact that the notice was served within six weeks of the alleged libel is only one half of the timing requirements for service of the written notice; the other mandatory requirement, which was not satisfied in this case, is that the notice be served before an action is commenced. The cross-appeal is therefore also dismissed.

[26] There will be no order for costs, either of the appeal or the cross-appeal.

Order accordingly.