COURT OF APPEAL FOR ONTARIO
DATE: 20000124
DOCKET: C32116
McMURTRY C.J.O., CATZMAN and CHARRON JJ.A.
B E T W E E N :
HENRY MERLING
(Appellant)
and
SOUTHAM INC., PAUL BENEDETTI, WADE HEMSWORTH, PATRICK J. COLLINS, KIRK LAPOINTE, JOHN GIBSON, DANA ROBBINS, HOWARD ELLIOTT, TERRY COOKE, SHAUN N. HERRON, JACK MACDONALD, JIM POLING, DAVE WILSON CHESTER WAXMAN, LEA PROKASKA, WAYNE MARSTON and ADMIRAL DISTRIBUTION INC.
(Respondent)
Joyce Harris for the appellant
Brian MacLeod Rogers for the respondents Paul Benedetti, Wade Hemsworth, Patrick J. Collins, Kirk LaPointe, John Gibson, Dana Robbins, Howard Elliott, Shaun N. Herron, Jack MacDonald, Jim Poling and Lee Prokaska
Gary J. Kuzyk for the respondents Terry Cooke and Dave Wilson
Heard: November 10, 1999
McMURTRY C.J.O.:
NATURE OF THE APPEAL
[1] The plaintiff appeals from an Order of Mr. Justice Crane dated May 4, 1999 striking out certain paragraphs of the statement of claim for failure to comply with the notice provisions of the Libel and Slander Act, R.S.O. 1990, c.L.12.
[2] The plaintiff also purports to appeal to this court from the order of Crane J. granting leave to amend various paragraphs of the statement of claim, failing which they would be struck out. That order was clearly interlocutory, and could only be appealed to the Divisional Court with leave of a judge of the Superior Court of Justice: sec. 19(1)(b) of the Courts of Justice Act. No leave having been sought and obtained, this court does not acquire jurisdiction to entertain that appeal under the provisions of sec. 6(2) of the Act: Albert v. Spiegel (1993), 17 C.P.C. (3d) 90; Chitel v. Bank of Montreal, 1999 8746 (ON CA), [1999] O.J. No. 3988; Manos Foods International Inc. v. Coca- Cola Ltd., 1999 3022 (ON CA), [1999] O.J. No. 3623.
[3] I would therefore make no disposition of that portion of the appeal, without prejudice to any motion the plaintiff might make, if so advised, to a judge of the Superior Court of Justice for leave to appeal to the Divisional Court.
THE FACTS
[4] The statement of claim alleged some twenty-three separate defamatory articles published in the Hamilton Spectator by the defendant Southam Inc. The alleged defamatory words are particularized in the statement of claim in relation to each article as well as the identity of the specific defendants that are alleged to be responsible for each article.
[5] The Hamilton Spectator, a daily newspaper, published the articles between October 1997 and April 1998. The articles referred to the plaintiff who had been a long-standing alderman on city council until he lost the November 10, 1997 election.
[6] The Libel and Slander Act requires that written notice of libel in a newspaper be given to a defendant within six weeks of the alleged libel coming to the notice of a plaintiff. The Libel and Slander Act further provides that an action for libel in a newspaper must be commenced within three months of the alleged libel coming to a plaintiff’s knowledge.
[7] It is agreed that the appellant had knowledge of the alleged libels on the dates that the articles were published. The appellant delivered three libel notices to the respondents on December 23, 1997, March 26 and May 29, 1998, complaining about the twenty-three articles. Three of these articles were published during the election campaign but seven weeks or more before the first libel notice. Nine of the articles complained of in the second libel notice were published more than six weeks before that notice was received. The only article complained of in the third libel notice was published more than six weeks before that notice was received.
[8] The motions judge struck out all of the paragraphs of the statement of claim whose notices had not been served within six weeks after the alleged libel had come to the appellant’s attention.
[9] The issues in relation to the appeal are as follows:
- Would it be open to a trial judge to find that the series of 23 articles complained of could be treated as a “single libel” for purposes of the notice requirements of section 5(1) of the Libel and Slander Act?
- Does section 5(3) of the Libel and Slander Act exempt the appellant from any requirement to provide a libel notice under section 5(1) of the Act because the appellant was a candidate in the November 10, 1997 municipal elections and therefore exempted from the notice requirements of s. 5(1) of the Act?
[10] The relevant sections of the Libel and Slander Act are as follows:
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.
(2) The plaintiff shall recover only actual damages if it appears on the trial, (a) that the alleged libel was published in good faith; (b) that the alleged libel did not involve a criminal charge; (c) that the publication of the alleged libel took place in mistake or misapprehension of the facts; and (d) that a full and fair retraction of any matter therein alleged to be erroneous, (i) was published either in the next regular issue of the newspaper or in any regular issue thereof published within three days after the receipt of the notice mentioned in subsection (1) and was so published in as conspicuous a place and type as was the alleged libel, or (ii) was broadcast either within a reasonable time or within three days after the receipt of the notice mentioned in subsection (1) and was so broadcast as conspicuously as was the alleged libel.
(3) This section does not apply to the case of a libel against any candidate for public office unless the retraction of the charge is made in a conspicuous manner at least five days before the election. R.S.O. 1980, c. 237, s. 5.
- An action for a libel in a newspaper or in a broadcast shall be commenced within three monthsafter the libel has come to the knowledge of the person defamed, but, where such an action is brought within that period, the action may include a claim for any other libel against the plaintiff by the defendant in the same newspaper or the same broadcasting station within a period of one year before the commencement of the action. R.S.O. 1980, c. 237, s.6.
Issue Number 1: Could the 23 articles be treated as a “single libel”?
[11] In support of the appellant’s submission that the twenty-three separate publications could be considered as a single libel by the trial judge we were referred to Botiuk v. Toronto Free Press, [1995] 3 S.C.R. 3. In Botiuk the Supreme Court of Canada held that in the special circumstances of that case several defendants could be held jointly and severally liable for the defamatory publications.
[12] Cory J. noted at p. 17 that “[t]he trial judge observed that counsel for all parties proceeded on the basis that although the contents of each document could be taken individually as to its defamatory nature, all three were to be considered together as creating a single act of libel. He proceeded on this basis.”
[13] Furthermore, in relation to the issue of joint liability, Cory J., at pp. 27-28, referred to Fleming’s The Law of Torts, 8th ed. 1992, and the author’s comments at p. 225:
A tort is imputed to several persons as joint tort feasors in three instances: agency, vicarious liability, and concerted action …. The critical element of the third is that those participating in the commission of the tort must have acted in furtherance of a common design.... Broadly speaking, this means a conspiracy with all participants acting in furtherance of the wrong, though it is probably not necessary that they should realize they are committing a tort.
[14] It should also be noted that Major J. in concurrent reasons made some observations with respect to defamatory publications where more than one defendant is involved. I infer from the comments of Major J. that he was somewhat skeptical about treating separate defamatory publications as one libel. In any event, he made the following observation at p. 41:
It is not clear how the trial judge concluded that he would treat all the defamatory publications as one libel. It was open to him to consider each act of publication as a separate cause of action. However, the trial judge had a discretion to combine the several closely related publications and to make a single award of damages in relation to those publications.
[15] Major J. went on to state (p. 42) that the trial judge “must have concluded that all the appellants acted in concert with one another and that the defamatory statements were published in furtherance of a common design.”
[16] In this case, it is pleaded in the appellant’s statement of claim that the “defendants embarked upon a deliberate campaign to defame, damage and discredit” the appellant “with a view to securing his defeat as a candidate for alderman.” It should be noted, however, that the election was held on November 10, 1997 after only three of twenty-three articles complained of had been published.
[17] With respect to the defamatory statements in Botiuk, there was no requirement under the Libel and Slander Act to deliver a notice within six weeks after learning of the alleged libel. The important policy consideration in relation to correcting the public record as soon as possible in so far as a newspaper or broadcaster is concerned, therefore, had no application.
[18] The appellant also relies on a decision of this court, Misir v. Toronto Star Newspapers Ltd., 1997 717 (ON CA), [1997] O.J. No. 4960. In that action the plaintiffs claimed that they were defamed in a series of twelve articles with respect to abuses in Ontario’s car insurance system which were published in the Toronto Star in May and September, 1995. Only the last article, published on September 30, 1995, actually named the plaintiffs.
[19] The defendants brought a motion to dismiss all claims other than the libel alleged in the September 30th article on several grounds, the first being that the libels alleged in the May articles were statute barred because the required notice was not given.
[20] Laskin J.A. describes the purpose of section 5(1) of the Libel and Slander Act as follows at para. 13:
Section 5(1) is a condition precedent to the bringing of an action for libel. Lack of notice bars the action. The court has no power to relieve against or excuse non-compliance with the notice requirement. Notice enables the newspaper to publish a retraction, correcting, withdrawing or apologizing for statements alleged to be erroneous and to mitigate damages if the statements are found to be defamatory.
[21] Laskin J.A. goes on to state, in part, that “section 5(1), however, includes the element of discoverability. … [and] the material before the motion judge does not disclose when [the plaintiffs] became aware of the publication of the May articles. On that ground alone, the alleged libels in the May article cannot now be held to be barred by s. 5(1) of the Act.”
[22] Laskin J.A. also states that he would not give effect to the limitation period defence even if the plaintiffs had knowledge of the May articles when they were published. While the May articles may have been defamatory, they were not reasonably capable of defaming the plaintiff until they were raised in the September 30 article. Laskin J.A. also stated that even “had the plaintiffs given notice within six weeks of the publication of the May articles and issued their statement of claim before September 30, 1995, the defendants undoubtedly would have moved to dismiss the action because the articles did not refer to the plaintiffs.”
[23] In Misir, Laskin J.A. also referred to Botiuk and the comments of Major J. (at para. 20) where he stated that the “various defamatory publications in these appeals were closely intertwined and no basis has been shown that would warrant interfering with [the trial judge’s] discretion.”
[24] In conclusion, Laskin J.A. states at para. 18:
Applying these principles, the trier of fact will be entitled to find that the May articles were defamatory of the plaintiffs because of the publication of the September 30th article. Alternatively, the trier of fact may be entitled to treat the separate publications - the May and the September articles - as a single libel.
[25] In the appeal before us, the appellant alleged a separate libel in relation to each of the articles. While it could be argued that the Southam defendants “may have acted in furtherance of a common design” adopting the words of Fleming in The Law of Torts, quoted earlier, I am of the view that it would be incorrect to treat the articles as a single libel. The circumstances were quite different in Botiuk where counsel for all parties proceeded on the basis that the three documents were to be considered as capable of creating a single act of libel. Furthermore, the Botiuk case did not raise any issue with respect to section 5(1) of the Libel and slander Act. In the special circumstances in Misir, Laskin J.A. held that the earlier articles were not reasonably capable of defaming the plaintiffs until the publication of the last article. Therefore, the notice provisions of the Libel and Slander Act did not apply before that time. In that case, the important policy reasons behind s. 5(1) of the Libel and Slander Act were not frustrated by such an interpretation. However, the policy reasons would be frustrated if the trier of fact was permitted to treat the twenty-three articles in the case before us as a single libel.
[26] In Misir, the court held that all of the articles together could be viewed as having a combined effect that was defamatory. There is no similar allegation by the appellant in this case, as he is clearly identifiable in each of the twenty-three articles. It is also acknowledged that the appellant had knowledge of the alleged libel on the various dates they were published.
[27] I am of the view that separate instances of alleged defamatory publications cannot be combined for notice purposes unless they depend on other publications for their defamatory meaning. The trier of fact may well be able to combine the defamations so found in an assessment of damages.
[28] I conclude that the twenty-three articles complained of cannot be treated as a “single libel” for the purposes of the notice requirements of s. 5(1) of the Libel and Slander Act.
Issue No. 2 – Was the appellant, as a candidate for public office,
excepted from giving notice by virtue of subsection 5(3) of the Libel
and Slander Act?
[29] The appellant submits that the notice provision of section 5(1) does not apply to him by reason of section 5(3) which states that “this section”, meaning s. 5 in its entirety, does not apply to the case of a libel against any candidate for public office.
[30] There is no question that the appellant was a candidate for public office up to the election of November 10, 1997. The appellant argues, however, that it should be left to the trial judge to determine whether the appellant was still a candidate after that date, perhaps for the next election. In my view, the submission has no merit as there was nothing in the material before us that would indicate that the appellant was still a candidate for some public office after the November 10th election.
[31] The interpretation of section 5(3) is a more difficult issue. Sub- section (3) states as follows:
(3) This section does not apply to the case of a libel against any candidate for public office unless the retraction of the charge is made in a conspicuous manner at least five days before the election.
[32] In my view, sub-section (3) is clearly ambiguous and the objective of the legislation must be considered in order to resolve the ambiguity, if possible.
[33] If a candidate for public office was excepted from giving notice under sub-section (1) of the Libel and Slander Act then the publisher of the libel could not reasonably have knowledge of any need to publish a retraction. This interpretation defeats the intention of the legislature which was to inform the publisher of any alleged libellous matter so as to afford the publisher an opportunity to retract the material in a timely manner. As stated earlier, there is clearly a strong public interest component in providing the opportunity for a retraction during an election campaign.
[34] Sub-section (3) of the Libel and Slander Act clearly contemplates a retraction. A purposive interpretation of section 5 strongly suggests that such a retraction contemplates the retraction referred to in sub-section (2). The phrase “the retraction” in sub-section (3) must refer to the retraction in sub-section (2) or one would expect that the Legislature would have used the phrase “a retraction” instead.
[35] In Frisina v. Southam Press Ltd. et al. (1980), 1980 1749 (ON SC), 30 O.R. (2d) 65 at 68, Robins J. made this observation in relation to section 5:
It should be borne in mind that notice under s. 5 is intended to enable a newspaper to publish a full and fair retraction correcting, withdrawing or apologizing for statements alleged to be erroneous and to mitigate damages if the statements should be held to be defamatory. Clearly, it is prejudicial to a defendant to deprive it of the benefits of this section and in the absence of express language doing so, a construction importing this result should not, in my opinion, be given the statute.
[36] I am in agreement with the statement of Robins J. in Frisina and, therefore, I interpret sub-section (3) of section 5 to be applicable only to sub-section (2) and not sub-section (1). The appellant was required to give proper notice pursuant to section 5(1) of the Libel and Slander Act.
[37] For these reasons, it is my view that the motions judge was correct in striking out certain paragraphs of the statement of claim. I would dismiss the appeal with costs.
Released: January 24, 2000
“R.R. McMurtry C.J.O.” “I agree: M.A. Catzman J.A.” “I agree: Louise Charron J.A.”
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