Grant v. Cormier-Grant et al. [Indexed as: Grant v. Cormier-Grant]

56 O.R. (3d) 225

[2001] O.J. No. 4428

Docket No. C35830

Court of Appeal for Ontario

Morden, Austin and Borins JJ.A.

November 19, 2001

[Quicklaw note: In the paper version, the two decisions of the Court of Appeal (Morden, Austin and Borins JJ.A.), dated October 3, 2001 and November 19, 2001 were published together at 2001 3041 (ON CA), 56 O.R. (3d) 215. The November 19, 2001 endorsement begins at 56 O.R. (3d) 225. The two decisions have been separated in the online version to enable linking to citators. The following headnote was published on the combined case.]

Torts -- Libel and slander -- Identification -- Identification of plaintiff by name not required if defamatory words used would lead ordinary sensible person who pays reasonable attention to contents of communication to understand it was plaintiff to whom defendant referred -- Test is objective.

Torts -- Libel and slander -- Pleadings -- Variance between pleading and evidence of words actually spoken immaterial if words spoken convey practically same meaning as words pleaded -- Motion judge erred in granting motion for summary judgment dismissing defamation action on basis of variance between evidence and statement of claim -- Motion judge should have granted plaintiff leave to amend statement of claim to conform with evidence of words spoken by defendant.

The plaintiff alleged that he was defamed when the defendant, his former sister-in-law, stated in a telephone conversation with her daughter's doctor that the daughter had been sexually abused by her uncle. The motion judge granted the defendant's motion for summary judgment dismissing the plaintiff's defamation action on the basis that, although the evidence disclosed that the defendant made a defamatory statement to the doctor, it was not the statement pleaded by the plaintiff. She also found that the defendant's statement to the doctor was protected by qualified privilege and the plaintiff had not pleaded malice. Finally, she found that the plaintiff had provided no evidence that the doctor understood the words to have referred to him. The plaintiff appealed.

Held, the appeal should be allowed.

In defamation actions, particularly actions of slander, although precise words must be pleaded in the statement of claim, the plaintiff does not have to prove that these precise words were in fact published. It is sufficient if the plaintiff proves words which are substantially to the same effect. Given that, at trial, considerable tolerance is afforded a plaintiff in a slander action where there is a variance between pleading and proof, the motion judge should not have dismissed the claim and should have given the plaintiff an opportunity to amend the statement of claim to conform with the evidence of the words spoken by the defendant.

The motion judge erred in finding that the plaintiff failed to plead malice and that, even if malice had been pleaded, he failed to adduce evidence of malice. Malice was in fact pleaded, and there was extrinsic evidence from which the trier of fact could infer that the defendant was actuated by malice. Malice can take the form of any improper motive for speaking the words complained of, and is not limited to knowledge that the statement was false or that it was published reckless as to its truth or falsity, as the motion judge appeared to believe.

The motion judge erred in concluding that there was no genuine issue for trial concerning the identification of the plaintiff as the person concerned. There was evidence that was capable of establishing that the doctor understood the words spoken to have referred to the plaintiff. However, in approaching the issue of identification from the perspective of whether the doctor knew the words spoken referred to the plaintiff, the motion judge did not apply the correct analysis. Where, as in this case, the plaintiff's name does not appear in the defamatory statement, it must be shown that the words used, or the circumstances attending the publication are such as would lead reasonable persons to understand that it was the plaintiff to whom the defendant referred. The test is an objective one, whether on the evidence an ordinary person would draw the inference that the words referred to the plaintiff. In the circumstances of this case, the test was not confined to whether only the doctor could identify the defamatory statement with the plaintiff. The record was sufficient to permit a jury, applying the proper test, to find that the words referred to the plaintiff. Thus, an issue of fact was raised of whether a person hearing the words which the defendant spoke to the doctor would reasonably understand that the words were spoken of and concerning the plaintiff.

APPEAL from a summary judgment dismissing a defamation action.

Morgan v. Odhams Press Ltd., [1971] 2 All E.R. 1156, [1971] 1 W.L.R. 1239, 115 Sol. Jo. 587 (H.L.), apld Other cases referred to Arnott v. College of Physicians & Surgeons (Saskatchewan), 1954 60 (SCC), [1954] S.C.R. 538, [1955] 1 D.L.R. 1; David Syme & Co. v. Canavan (1918), 25 C.L.R. 234 (Aust. H.C.); Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257, 20 R.P.R. (3d) 207 (Ont. C.A.); Fraser v. Sykes, 1973 153 (SCC), [1974] S.C.R. 526, 39 D.L.R. (3d) 321, [1973] 5 W.W.R. 484, affg 1971 ALTASCAD 16, [1971] 3 W.W.R. 161 (Alta. C.A.), affg (1970), 1970 1214 (AB SCTD), [1971] 1 W.W.R. 246 (Alta. T.D.); Knupffer v. London Express Newspaper Ltd., [1944] 1 All E.R. 495, [1944] A.C. 116, 113 L.J.K.B. 251, 170 L.T. 362, 60 T.L.R. 310, 88 Sol. Jo. 143 (H.L.); Mouammar v. Bruner (1978), 1978 1676 (ON SC), 19 O.R. (2d) 59, 84 D.L.R. (3d) 121, 6 C.P.C. 320n (H.C.J.) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20 Authorities referred to Brown, R.E., The Law of Defamation in Canada, 2nd ed., looseleaf (Toronto: Carswell, 1999) Clerk, J.F., Clerk & Lindsell on Torts, 18th ed. (London: Sweet & Maxwell, 2000) Fleming, J.G., The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) Gatley, C., Gatley on Libel and Slander, 9th ed. (London: Sweet & Maxwell, 1998) Keeton, W.P., ed., Prosser and Keeton on the Law of Torts, 5th ed. (St. Paul, Minn.: West Pub. Co., 1984)

James C. Morton, for appellant. Ingrid Van Weert, for respondent.

Endorsement

[1] Endorsement BY THE COURT: -- We have found it necessary to vary para. 31 of the court's reasons for judgment released on October 3, 2001, on the basis of submissions made by counsel following the release of the reasons.

[2] Accordingly, para. 31, as varied, is to be substituted for the former paragraph, and reads as follows:

I would, therefore, allow the appeal, set aside the judgment dismissing the appellant's claim against Jenny Cormier-Grant and order that her motion for summary judgment be dismissed. The appeal with respect to the summary judgment in favour of Patricia Cormier was, in effect, abandoned and it is dismissed without costs. In addition, the appellant is granted leave to amend his statement of claim, if so advised. The appellant is entitled to his costs of the motion made on behalf of Jenny Cormier-Grant and the appeal from the judgment in her favour. The costs order of the motion judge in so far as it relates to Patricia Cormier shall stand.