DATE: 2002-02-11
DOCKET: C37036
COURT OF APPEAL FOR ONTARIO
LABROSSE, DOHERTY and LASKIN JJ.A.
B E T W E E N :
Kiké Roach
CHARLES C. ROACH
for the appellant
Plaintiff/Appellant
- and -
Julian Porter, Q.C.
for the respondent
NOW COMMUNICATIONS INC.,
ENZO DI MATTEO, and
ROBERT DAVIS
Defendants/Respondents
Heard: January 16, 2002
On appeal from the order of Justice Ruth E. Mesbur dated August 29, 2001.
DOHERTY J.A.:
I
[1] The appellant, Charles Roach is a lawyer and community organizer. He sued the respondent, Robert Davis, a municipal politician, Now Communications Inc. and Enzo Di Matteo alleging libel and slander. The libel allegation arose out of an article that appeared in the October 26, 2000 edition of the weekly newspaper “NOW”. Now Communications Inc. is the publisher of that newspaper. Mr. Di Matteo wrote the article and Mr. Davis was quoted in the article. Mr. Roach alleged that statements attributed to Mr. Davis implied that Mr. Roach was anti-Jewish. Mr. Roach also alleged that Mr. Davis had slandered him. The slander allegation relating to Mr. Davis and the libel allegations against the other two defendants are not in issue on this appeal.
[2] Prior to serving a statement of defence, counsel for Mr. Davis moved for an order striking the libel claim against him, contending that Mr. Davis had not been served with a libel notice as required by s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12 (the Act). The motion judge accepted this argument and struck the libel claim.
[3] I would allow the appeal, set aside the order below and reinstate the libel action.
II
[4] The relevant facts can be briefly stated. The article in which the alleged libel appeared was published on or about October 26, 2000. On November 7, 2000, Mr. Roach had a letter delivered to the campaign headquarters of Mr. Davis. The letter contained a copy of the offending article and referred specifically to the three paragraphs that Mr. Roach said contained the libellous statements. The letter went on to say:
Mr. Roach’s work with the Nation of Islam is not anti-Jewish. His position is that what is ascribed to him in the second and third paragraphs of the article quoted above is defamatory. Accordingly, I have served the writer, Enzo Di Matteo, and the publisher of NOW with the required notice under the Libel and Slander Act. …
Needless to say, he [Mr. Roach] takes this matter very seriously. To avoid legal proceedings against you, please let me have your response as soon as possible.
[5] The letter was hand-delivered to Mewan Chau an adult person working as an administrative assistant in the campaign headquarters of Mr. Davis. Ms. Chau had no recollection of seeing the letter. Mr. Davis said the letter was not brought to his attention. According to Mr. Davis, he was first aware of the libel claim when he was served with the statement of claim on May 22, 2001.
III
[6] On appeal, but not before the motion judge, counsel for Mr. Roach argued that Mr. Davis’ motion was premature. She submitted that Mr. Roach was not required to plead compliance with s. 5(1) of the Act in his statement of claim, but that it was for the defendant to put compliance with that section in issue in the statement of defence: rule 25.06, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Canadian Plasmapheresis Centres Ltd. v. Canadian Broadcasting Corp. (1975), 1975 679 (ON SC), 8 O.R. (2d) 55 (H.C.).
[7] There is considerable merit to this submission. However, it was not raised before the motion judge, and the parties put material before the motion judge which fully developed their respective positions. Nothing would be gained by requiring Mr. Davis to recommence this motion after service of his statement of defence. In any event, as I am satisfied that Mr. Roach should succeed on the merits, he is not prejudiced by my addressing the issue at this stage of the proceedings.
IV
[8] Section 5(1) of the Act reads:
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. [Emphasis added.]
[9] NOW is a newspaper as defined in the Act. Mr. Roach’s action is, therefore, an “action for libel in a newspaper”. Where s. 5(1) is applicable, compliance with the section is a condition precedent to the bringing of an action for libel. Failure to provide the notice required under s. 5(1) will bar the action for libel in a newspaper: Misir v. Toronto Star Newspapers Ltd. (1997), 1997 717 (ON CA), 105 O.A.C. 270 at 273 (C.A.).
[10] The November 7th letter met the time requirement set out in s. 5(1). It also specified “the matter complained of” as required by that section.
[11] Mr. Davis was not personally served with the November 7th letter. Nor did Mr. Roach obtain an order permitting some alternative method of service upon Mr. Davis. Consequently, Mr. Roach cannot successfully maintain that he served the letter “in the same manner as a statement of claim”: rule 16.01 and rule 16.03, Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[12] Counsel for Mr. Roach makes two submissions. She argues that s. 5(1) has no application to defendants like Mr. Davis who have no connection to the entity that published or broadcast the alleged libel. She submits that the purpose of the section is to give notice to the medium through which the libel was spread to allow that medium to take appropriate steps in mitigation. Alternatively, counsel submits that if s. 5(1) applies to all defendants, the service provisions apply equally to all defendants and that Mr. Davis could be served by delivering the notice to a grown-up person at Mr. Davis’ chief office. She contends that the delivery of the letter to Ms. Chau, Mr. Davis’ assistant at his campaign headquarters, constitutes compliance with the second means of service described in s. 5(1) of the Act.
[13] The motion judge proceeded on the basis that all defendants were entitled to the notice referred to in s. 5(1) where the claim alleged libel in a newspaper. She went on to hold, applying obiter from Boyer v. Toronto Life Publishing Co. Ltd. (2000), 2000 22369 (ON SC), 48 O.R. (3d) 383 at 391 (S.C.J.), that the second means of service described in s. 5(1) was not available to serve individual defendants who had no connection to the entity that had published or broadcast the alleged libel. Since Mr. Davis was in no way connected to Now Communications Inc., he could not be served by the giving of the notice to a grown-up person at Mr. Davis’ chief office.
[14] The contention that the notice requirement in s. 5(1) does not apply to a defendant like Mr. Davis who has no connection to the publisher or broadcaster of the alleged libel is not without merit. The various arguments in support of it are marshalled by R. Brown in The Law of Defamation in Canada, 2nd ed. (1999), Vol. 3, at pp. 17-90 to 17-94. This court has, however, recently held that s. 5(1) applies to all defendants: Watson v. Southam Inc. (2000), 2000 5758 (ON CA), 189 D.L.R. (4th) 695 at 706-707 (Ont. C.A.). In coming to that conclusion, the court observed that the word “defendant” was not qualified in s. 5 and that the purpose underlying the notice requirement had application to all defendants.
[15] The arguments against the reading of s. 5(1) adopted in Watson v. Southam Inc., supra, may warrant a reconsideration of that authority. I do not think, however, that this is the appropriate case. While counsel raised the correctness of Watson v. Southam Inc., supra, her primary argument was that delivery of the letter to Mr. Davis’ office manager at his campaign headquarters constituted compliance with s. 5(1). As I would decide that issue in favour of Mr. Roach, I prefer to determine the appeal on that basis.
[16] Watson v. Southam Inc., supra, holds that s. 5 refers to all defendants without qualification because there is no reason to deny any defendant the benefit of the notice contemplated by that section. If the notice requirement is to apply to all defendants, then I see no reason why the two modes of service described in s. 5(1) should not also apply to all defendants. The closing words of s. 5(1) clearly suggest service on a corporate entity and the application of those words to individual defendants may be somewhat clumsy. I see nothing, however, in the language of the section which prevents the application of these words to individual defendants. If an individual defendant has a “chief office”, that is, a principal place of business, then delivery of the notice to an adult person at that place should suffice to bring the alleged libel to the attention of the individual defendant. While the notice may not have come to Mr. Davis’ attention in this case, that failure is explained by matters peculiar to this case and not by any inherent inadequacy in that mode of service.
[17] In Boyer v. Toronto Life Publishing Co. Ltd., supra, the individual defendants were employed by or closely connected to the publisher of the alleged libel. Copies of s. 5(1) notices were delivered to their attention at the publisher’s chief office. They were not served personally. In a carefully considered decision, Nordheimer J. held that service of those individuals at the publisher’s chief office was proper. He said at pp. 390-91:
… [S]ervice on all defendants can be effected through the chief office of a corporate defendant publisher assuming there is legitimate reason to believe that there is a connection between the corporate publisher and the individual defendants. …
[18] Nordheimer J. went on to indicate at p. 391:
… If one of the individual defendants was simply a person who was quoted in the article or broadcast and who had no connection to the corporate publisher then, under this interpretation, the second option for service would not be available.
[19] This observation was unnecessary to the decision reached by Nordheimer J. I think it is inconsistent with his functional interpretation of s. 5(1) as it applied to defendants who were connected to the publisher. With respect to those defendants, he gave s. 5(1) an expansive interpretation so as to permit service of individual defendants at someone else’s chief office. However, his conclusion that other individual defendants could not be served even at their own chief office seems a restrictive interpretation of the section.[^1]
[20] Consistency with Watson v. Southam Inc., supra, dictates that s. 5(1) be interpreted so as to provide that both modes of service are potentially available to a plaintiff as against all defendants. It was not argued that Mr. Davis’ campaign headquarters were not his “chief office”. Delivery of the letter on November 7th to Mr. Davis’ assistant at his campaign headquarters complied with the closing words of s. 5(1) and constituted effective service of the notice.
RELEASED: “Feb 11 2002”
“DD”
“Doherty J.A.”
“I agree JM Labrosse J.A.”
“I agree John Laskin J.A.”
[^1]: We do not have to decide whether Nordheimer J.’s interpretation is correct. It is noteworthy that Mr. Porter, a very experienced libel lawyer, advised the court that the practice is to serve all individual defendants personally, absent some agreement to the contrary or an order of the court permitting some other form of service.