Mantini v. Smith Lyons LLP et al.; Law Times Inc. et al., Third Parties [Indexed as: Mantini v. Smith Lyons LLP (No. 2)]

64 O.R. (3d) 516

[2003] O.J. No. 1830

Docket No. C37886

Court of Appeal for Ontario,

Catzman, Goudge and Feldman JJ.A.

May 14, 2003

Torts -- Defamation -- Article in legal newspaper alleged to be defamatory -- Question of law whether words capable of defamatory meaning -- Meaning of impugned words must be construed having regard to [page517] context of article and character of newspaper's readership -- Meaning of impugned words must be construed according to meaning they would be given by reasonable persons of ordinary intelligence.

In December 2000, the plaintiff, S. Paul Mantini, and four other lawyers left the law firm of Smith Lyons LLP to take up positions elsewhere. Following their departure, John R. Finley, the managing partner of the firm, was interviewed by the Law Times, which published an article in its January 29, 2001 edition. The article stated that Finley attributed the "miniature exodus to a 'period of strategic planning and restructuring' at the firm". He was quoted as saying: "Our restructuring is a greater focus on teamwork in both marketing and the provision of client services. When a partnership restructures to this degree, there is always the possibility that some individuals may choose to relocate rather than adjust to the requirements of the new structure." Mantini sued the law firm and Finley for defamation alleging that the words were meant and were understood to mean that: he was forced out of the firm; was unable to work as part of a team at a law firm; practises law selfishly, rather than as a co-operative member of a team; and conducted himself in an unprofessional manner. The law firm successfully moved before Coo J. for an order striking out the statement of claim and dismissing the action on the basis that the words in question were not reasonably capable of bearing the meanings alleged. The action was dismissed with costs payable by Mantini. He appealed and moved for leave to appeal the order as to costs.

Held, the appeal and the motion for leave to appeal should be dismissed with costs.

The preliminary determination of whether the impugned words are capable of bearing the defamatory meaning is a question of law. The meaning of the impugned words must be construed having regard to the context of the article and the character of the newspaper's readership. They are to be construed according to the meaning they would be given by reasonable persons of ordinary intelligence, not what persons setting themselves to work to deduce some unusual meaning might succeed in extracting from them. Coo J. did not err in concluding that it was plain and obvious that the words complained of in the statement of claim were not capable of bearing any of the four defamatory meanings alleged.

APPEAL from an order striking out a statement of claim and dismissing an action; MOTION for leave to appeal a costs order. [page518]

Cases referred to Hodgson v. Canadian Newspapers Co. (2000), 2000 14715 (ON CA), 49 O.R. (3d) 161, 189 D.L.R. (4th) 241 (C.A.), affg in part (1998), 1998 14820 (ON SC), 39 O.R. (3d) 235 (Gen. Div.); Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, 49 B.C.L.R. (2d) 273, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105 (sub nom. Hunt v. T & N plc); Laufer v. Bucklaschuk (1999), 1999 5073 (MB CA), 145 Man. R. (2d) 1, 181 D.L.R. (4th) 83, 218 W.A.C. 1, [2000] 2 W.W.R. 462 (C.A.) [Leave to appeal to S.C.C. denied (2000), 261 N.R. 393n], revg (1988), 1998 28086 (MB QB), 128 Man. R. (2d) 156 (Q.B.)

Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01, 21.02

Authorities referred to Brown, R.E., Law of Defamation in Canada, 2nd ed (Scarborough, Ont.: Carswell, 1994)

John B. Laskin and Frank Cesario, for plaintiff (appellant). C. Clifford Lax, Q.C., and Rocco Di Pucchio, for defendants (respondents).

The judgment of the court was delivered by

CATZMAN J.A.: --

The Appeal and the Motion for Leave to Appeal

[1] This is an appeal by S. Paul Mantini (the "lawyer") from an order striking out his statement of claim and dismissing his action for defamation against Smith Lyons LLP ("the law firm") and John R. Finley (the "managing partner"). The lawyer also moves for leave to appeal the order that he pay the costs of the action on a partial indemnity scale.

[2] These reasons are being released contemporaneously with the reasons of this court on the appeal by the law firm and the managing partner from an order refusing to stay or dismiss a related action brought by the lawyer and to refer to arbitration claims made in that action.

The Background and the Alleged Libel

[3] In December 2000, the lawyer and four other lawyers left the law firm to take up positions elsewhere. Following their departure, the managing partner gave an interview [See Note 1 at end of document] to the Law Times, a publication described in the statement of claim as "a weekly newspaper which is widely circulated in the legal community in Toronto and elsewhere in Canada". In its January 29, 2001 edition, the Law Times published an article entitled "Five lawyers gone in Smith Lyons' restructuring". The article mentioned, by name, the lawyer (whom it described as "one of Canada's leading corporate commercial lawyers") and the four others who had left the firm. [See Note 2 at end of document] Remarks quoting or attributed to the managing partner appeared in nine of the article's paragraphs, but only two are the subject of complaint. The two paragraphs read:

Finley attributes the miniature exodus to a "period of strategic planning and restructuring" at the firm. [page519]

"Our restructuring has resulted in a greater focus on teamwork in both marketing and the provision of client services" he says. "When a partnership restructures to this degree, there is always the possibility that some individuals may choose to relocate rather than adjust to the requirements of the new structure."

The full article is reproduced at the end of these reasons [article omitted].

[4] The lawyer instituted an action for defamation against the law firm and the managing partner, claiming that the managing partner's comments, set out above, were libellous. The statement of claim alleged that the words were meant, and were understood to mean, that the lawyer:

(a) was forced out of the law firm;

(b) was unable or unwilling to work as part of a team at the law firm;

(c) practises law selfishly, rather than as a co-operative member of a team; [and]

(d) conducted himself in an unprofessional manner.

The Motion Before Coo J.

[5] The law firm and the managing partner moved under rule 21.01 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] to strike out the statement of claim and dismiss the lawyer's action on the basis that the words in question were not reasonably capable of bearing the meanings alleged. The well- known test on such a motion is whether it is plain and obvious that no reasonable cause of action is disclosed: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321, at p. 980 S.C.R.

[6] Coo J. granted the motion. In an endorsement setting forth his reasons, he held that the language could not support any of the meanings relied on by the lawyer in his statement of claim, and dismissed the lawyer's action with costs on a partial indemnity scale.

[7] At the request of counsel for the lawyer, Coo J. entertained further written submissions regarding costs. The lawyer's position was that no costs should be awarded because the law firm and the managing partner had failed, contrary to the provisions of rule 21.02, to make its motion promptly and that substantial costs had been incurred in a number of procedural steps taken in the action between its institution and the motion. Coo J. issued a second endorsement, in which he said that he had reviewed his disposition of costs in light of the written submissions and that he saw no reason to depart from his original conclusion. [page520]

The Claim for Defamation

[8] In support of his appeal against the order dismissing his action, the lawyer submitted that, having regard to the stringent test under rule 21.01, Coo. J. erred in concluding that it was plain and obvious that the words complained of in the statement of claim were not capable of bearing any of the four defamatory meanings alleged.

[9] Before Coo. J and in this court, the law firm and the managing partner placed much emphasis on the fact that the alleged defamatory words do not make any specific reference to the lawyer or, indeed, to any one of the five lawyers named in the article. While Coo J. found "some considerable strength in this position", he was not prepared to rule against the lawyer's action on that basis. I propose to do as he did, and I therefore turn to the question of the alleged defamatory meanings.

[10] The test to determine whether allegedly libellous words are capable of a defamatory meaning has been reviewed in a number of authorities, including the recent decision of Lane J. in Hodgson v. Canadian Newspapers Co. (1998), 1998 14820 (ON SC), 39 O.R. (3d) 235, affd (2000), 2000 14715 (ON CA), 49 O.R. (3d) 161, 189 D.L.R. (4th) 241 (C.A.). Under the heading "Legal principles with respect to meaning", Lane J. said, at pp. 252-53 O.R.:

It is a question of law whether any imputation contained in the words complained of is capable of being defamatory.

In deciding whether the words are capable of a defamatory meaning the trial judge will construe the words according to the meaning they would be given by reasonable persons of ordinary intelligence, and will not consider what persons setting themselves to work to deduce some unusual meaning might succeed in extracting from them.

To determine the natural and ordinary meaning of the words it is necessary to take into account the context in which the words were used and the mode of publication.

The natural and ordinary meaning of the words is to be determined according to the fair and natural meaning in which reasonable persons with the ordinary person's general knowledge and experience of worldly affairs, would be likely to understand them in the context in which they were used.

The test to be applied by the court is whether the words complained of, in their natural and ordinary meaning, determined in accordance with the principles stated above, may tend to lower the plaintiff in the estimation of reasonable persons or to expose the plaintiff to hatred, contempt or ridicule . . .

(Authorities and citations omitted) [page521]

[11] The preliminary determination whether the impugned words are capable of bearing the defamatory meanings pleaded is a question of law and has been referred to as the "gatekeeper function": Laufer v. Bucklaschuk (1999), 1999 5073 (MB CA), 181 D.L.R. (4th) 83, 218 W.A.C. 1 (Man. C.A.), leave to appeal to S.C.C. refused (2000), 189 D.L.R. (4th) vii. That function was described in the following terms in Laufer, at para. 25: [See Note 3 at end of document]

In a defamation trial, the trial judge is required to engage in a two-stage process. He must first determine as a question of law whether the challenged words are capable of bearing the meaning or meanings set forth in the pleadings. He must also determine whether the alleged defamatory meaning or meanings relate to the plaintiff. The threshold question in every defamation action is whether the words cited are reasonably capable of a defamatory meaning in relation to the plaintiff. If the trial judge has any doubt as to whether the words are capable of bearing the meanings relied upon by the plaintiff, he must withdraw the case from the jury. Only if he is satisfied that the published statements are capable of bearing the meanings alleged by the plaintiff in his pleadings, and are capable of relating to the plaintiff, may the trial judge then proceed to the second stage of the process. He may then instruct the jury on their function as finders of fact.

(Emphasis added)

[12] As indicated below, I find it plain and obvious, as did Coo J., that the words in the two paragraphs on which the lawyer's defamation action is based are not capable of bearing the defamatory meanings that he alleges in his statement of claim.

(a) "was forced out of Smith Lyons"

[13] The impugned words are not capable of the meaning that the lawyer was forced out of the law firm. Indeed, they suggest the opposite. The managing partner is quoted as saying that "there is always the possibility that some individuals may choose to relocate." Choosing to relocate is very different from being forced out.

(b) "was unable or unwilling to work as part of a team"

[14] Having regard to the context of the article [See Note 4 at end of document] and the character of the newspaper's readership, [See Note 5 at end of document] the impugned words are [page522] not capable of the meaning that the lawyer was unable to work as part of a team or that he was unwilling to do so. The theme of the article is not the intransigence of the lawyers who left but rather the pressures facing mid-sized law firms in an era of expansion, merger and specialization. The impugned words are to be construed according to the meaning they would be given by reasonable persons of ordinary intelligence, not what persons setting themselves to work to deduce some unusual meaning might succeed in extracting from them: Hodgson v. Canadian Newspapers Co. (1998), 1998 14820 (ON SC), 39 O.R. (3d) 235 (Gen. Div.) at pp. 252-53. The suggested meaning falls into the latter category.

(c) "practises law selfishly and not as a co-operative member of a team"

[15] Having regard to the context of the article and the character of the newspaper's readership, the impugned words are not capable of the meaning that the lawyer practises law selfishly. Nothing in the article can be taken to suggest or imply that selfishness is an aspect of the lawyer's practice. The balance of the suggested meaning -- that the lawyer does not practise "as a co-operative member of a team" -- is a reworded version of suggested meaning (b), above, and the same observations as to that meaning apply.

(d) "conducted himself in a unprofessional manner"

[16] The impugned words are not capable of the meaning that the lawyer conducted himself in an unprofessional manner. The whole tenor of the article is the pressures on full-service law firms in the modern economy. However one may characterize the lawyer's response to his law firm's restructuring to meet these pressures, the one characterization that cannot apply is lack of professionalism. I return to the quotation of the managing partner in the impugned words: "there is always the possibility that some individuals may choose to relocate rather than adjust to the requirements of the new structure." Choosing to relocate is not, and cannot be strained to mean, unprofessionalism.

[17] Thus, in my view, the impugned words are clearly incapable of any of the four meanings pleaded in the lawyer's statement of claim. Of all of them, only with suggested meaning (b) (and its duplicate, in the latter portion of suggested meaning (c)) is it even arguable that the plain and obvious test might not be met. In any event, although I disagree with that proposition, I am of the view that saying that one of Canada's leading corporate [page523] commercial lawyers was unable or unwilling to work as part of a team, or did not practise as a co-operative member of a team, could not possibly be seen as defamatory. As it happened, the article indicated that the lawyer had left the law firm to join another well- known law firm of equivalent size. But even if he had chosen to practise alone, the legal profession has long respected practitioners who make that choice and the suggested meanings, made to "the legal community in Toronto and elsewhere in Canada", do not defame.

[18] I would therefore dismiss the appeal.

The Order for Costs

[19] The lawyer's motion for leave to appeal Coo J.'s disposition of costs is based on delay by the law firm and the managing partner in bringing their motion under rule 21.01. Rule 21.02 requires that such a motion shall be made promptly and that a failure to do so may be taken into account by the court in awarding costs. In the lawyer's submission, the law firm and the managing partner not only failed to move promptly, but they took a series of steps in the action over a six-month period that ran up unnecessary legal costs for them and imposed unnecessary costs on the lawyer.

[20] There is a short and complete answer to this submission. After the release of the endorsement dismissing the defamation action, the lawyer requested and was granted leave to make written submissions to persuade Coo J. to vary his costs award. All of the arguments that were advanced in this court were addressed in the lawyer's written submissions to Coo J., who considered them, reviewed his disposition of costs and specifically confirmed it. I see no basis on which this court could properly interfere with the exercise by Coo J. of the discretion that rule 21.02 confers upon him.

[21] I would therefore dismiss the motion for leave to appeal the costs order.

Disposition

[22] For the foregoing reasons, I would dismiss the appeal and the motion for leave to appeal, both with costs on a partial indemnity scale. Having regard to submissions made at the conclusion of the argument, I would fix those costs in the sum of $8,500 plus disbursements and GST.

Order accordingly.

[page524]

Notes

Note 1: So, too, did the lawyer. The Law Times article contains more references to remarks quoting or attributed to the lawyer than it does to remarks quoting or attributed to the managing partner.

Note 2: It also indicated where they had gone or were going: the lawyer, to Bennett Jones; two of the others, to other firms; the fourth, to a position with a large insurance company; and the fifth, to a university law faculty.

Note 3: Laufer v. Bucklaschuk contains, at paras. 25-35, a useful discussion of the "gatekeeper function".

Note 4: Generally speaking, the court will consider the publication as a whole, and not dwell or concentrate on isolated passages, in determining whether it is defamatory: Brown, Law of Defamation in Canada, 2nd ed. (Scarborough, Ont.: Carswell, 1994) (looseleaf), vol. 1, para. 5.3(6)(a) at 5-55.

Note 5: Consideration should be given to the class of persons to whom the defamatory remarks were addressed: Brown, op. cit., para. 5.3(2) at 5-34, fn. 147. Although no Canadian cases are cited in support of this proposition, I share the author's view of its correctness.