Bahlieda v. Santa

68 O.R. (3d) 115

[2003] O.J. No. 4091

Docket No. C39974

Court of Appeal for Ontario

McMurtry C.J.O., Goudge and Gillese JJ.A.

October 22, 2003

Civil procedure -- Summary judgment -- Genuine issue for trial -- Motions judge erring in granting summary judgment dismissing part of plaintiff's libel action arising from allegedly defamatory material posted by defendant on his Internet website -- Genuine issue for trial existing as to whether material placed on website and made available through Internet is "broadcast" within meaning of Libel and Slander Act -- Libel and Slander Act, R.S.O. 1990, c. L.1, ss. 5(1), 6, 7.

The motions judge granted summary judgment dismissing that part of the plaintiff's defamation action arising from allegedly defamatory material posted by the defendant on his Internet website. The plaintiff appealed.

Held, the appeal should be allowed.

A genuine issue for trial existed with respect to whether material placed on a website and made available through the Internet is "broadcast" within the meaning of the Libel and Slander Act, so that the plaintiff's failure to deliver a notice of claim and statement of claim within the periods required by ss. 5(1) and 6 of the Act meant that the claim was statute-barred. Section 7 of the Act provides that ss. 5(1) and 6 apply only to "broadcasts from a station in Ontario". The motions judge made no findings of fact on the essential question of whether the broadcasts were from a station in Ontario. In addition, there was conflicting expert opinion on important issues. The conflicting opinions raised considerations that were germane not only to deciding whether Internet publications are a broadcast within the meaning of the Act but also to determining whether subsequent viewing of the Internet message by third parties amounted to a republication of the material. [page116]

APPEAL by plaintiff from summary judgment of Pierce J. (2003), 2003 12856 (ON SC), 64 O.R. (3d) 599 (S.C.J.) dismissing part of a claim.

Statutes referred to Libel and Slander Act, R.S.O. 1990, c. L.12, ss. 5(1), 6, 7

Peter A. Downard and Berkley D. Sells, for appellant. Lorne Honickman and Carita Pereira, for respondent.

Reasons for Decision

[1] BY THE COURT: -- This is an appeal from an order granting the respondent's motion for summary judgment and dismissing that part of the appellant's claim for libel arising from allegedly defamatory material posted by the respondent on his Internet website.

[2] The motions judge found that material placed on a website and made available through the Internet is a "broadcast" within the meaning of the Libel and Slander Act, R.S.O. 1990, c. L.12. As the appellant did not deliver a notice of claim and statement of claim within the periods required by ss. 5(1) and 6 of the Act, the motions judge held that the appellant's claim was statute barred.

[3] The motions judge considered the parties' expert reports which defined the nature of the Internet and gave their opinions on whether placing material on the Internet constitutes a broadcast.

[4] At p. 608 O.R., she concluded that there was no genuine issue for trial because:

The definition of "broadcasting" contained in the Libel and Slander Act deals with infrastructure, and it deals with the effect of dissemination of information. On this, the experts agree.

[5] She held that because the Internet uses the same infrastructure as radio and television and because material placed on the Internet via a website may be accessed by a large audience, such material constitutes broadcasting within the meaning of the Act.

[6] In our view, the motions judge erred in several respects in finding that there was no genuine issue for trial. Section 7 of the Act provides that subsection 5(1) and s. 6 apply only to "broadcasts from a station in Ontario". She makes no findings of fact, including no finding as to the essential question of whether the broadcasts were from a station in Ontario. On that basis alone, in our view, the application should have been dismissed. In addition, however, we note that the experts' opinions conflicted on a number of issues, including whether the word "dissemination" [page117] can properly apply to information distributed by Internet and whether Internet publication is immediate and/or transient. Summary judgment applications are not a substitute for trial and thus will seldom prove suitable for resolving conflicts in expert testimony particularly those involving difficult, complex policy issues with broad social ramifications.

[7] The conflicting expert opinions raise considerations that are germane not only to deciding whether Internet publications are a broadcast within the meaning of the legislation, but also to determining whether subsequent viewing of the Internet message by third parties amounts to a republication of the material.

[8] Accordingly, we would allow the appeal and set aside the order below in which partial summary judgment is granted. Costs of the appeal and below to the appellant fixed in the amounts of $12,000 and $10,000, respectively.

Appeal allowed.