DATE: 20040901 DOCKET: C39359
COURT OF APPEAL FOR ONTARIO
DOHERTY, MOLDAVER and FELDMAN JJ.A.
B E T W E E N:
ELIZABETH ROGACKI Plaintiff (Respondent)
- and -
ZBIGNIEW BELZ, GAZETA INC., GAZETA MAGAZINE and ALICJA GETTLICH Defendants (Appellants)
Counsel: Peter I. Waldmann for the appellants Robert B. Bell and Darilynn S. Allison for the respondent
Heard: March 29-30, 2004
On appeal from the judgment of Justice Norman D. Dyson of the Superior Court of Justice, sitting with a jury, dated December 4, 2002.
DOHERTY and MOLDAVER JJ.A.:
I Overview
[1] The respondent (Rogacki) commenced a defamation action against the appellants alleging that she was libelled by a series of nine publications that appeared in the appellant, Gazeta Magazine (“Gazeta”) over the summer of 2001. Gazeta is a well-known Polish language newspaper with circulation in Ontario and the rest of Canada.
[2] The publications consisted of eight articles and one letter to the editor. The appellant, Alicja Gettlich (“Gettlich”) wrote five of the articles and the appellant, Zbigniew Belz (“Belz”) wrote three. Belz was also the editor, publisher and proprietor of Gazeta.
[3] After an 11 day trial, the jury found in Rogacki’s favour. The jury awarded general damages in the amount of $150,000.00 with Gettlich being held responsible for $15,000.00 of that amount. The jury also awarded aggravated damages against the appellant Belz in the amount of $100,000.00.
[4] The appellants appeal alleging a wide variety of errors. We would dismiss the appeal.
II Factual Background
[5] Rogacki, who had been active in the Polish-Canadian community for years, was elected president of the Canadian Polish Congress (“CPC”) in the summer of 2000. The CPC is a Canada-wide umbrella organization representing a variety of Polish organizations in Canada. The CPC promotes the social, economic and cultural interests of its member groups, and seeks to maintain strong ties between Polish-Canadians and their homeland. The position of president is a voluntary non-paying position. While serving as president of the CPC, Rogacki was employed as a senior civil servant by the Ontario government.
[6] It is unnecessary to set out in detail the background events that led to the publications. It is sufficient to say that Gettlich had been on the CPC executive up to 2000. Rogacki was elected in 2000. Early in Rogacki’s tenure, Gettlich, Belz and others became critical of her conduct as president of the CPC. They took the position that Rogacki was operating in a manner that excluded those who did not agree with her and was using her position to promote her own interests. These criticisms appeared in many articles in Gazeta, including the nine in issue in this trial. Rogacki contended that these nine publications went beyond legitimate criticism and constituted libellous personal attacks on her that damaged her professional and personal reputation within the Polish community.
[7] The appellants acknowledged authorship of the publications. They also acknowledged, subject to two exceptions, that the impugned portions of the publications referred to Rogacki. In his closing address, counsel for the appellants described the publications as containing harsh, but legitimate criticism of Rogacki’s conduct as president of the CPC.
[8] The appellants advanced the defences of justification and fair comment and also contended that the articles were provoked by attacks made against them by Rogacki and others. The appellants acknowledged one factual error in the publications, but offered no apology or retraction. They also testified that they did not speak to Rogacki before the articles were published to get her point of view on the issues referred to in the publications.
[9] The jury returned a general verdict assigning liability and quantifying damages. The jury also returned special verdicts consisting of answers to a series of questions posed in respect of each of the nine publications. The jury found that seven of the nine publications were defamatory and that the words complained of in each of those seven publications were false “in substance and in fact”. The jury further concluded that six of the seven publications caused injury to the respondent’s reputation and that five of those six were beyond the bounds of fair comment. In the end result, five of the publications were found to have libelled Rogacki.
[10] The jury did not find malice in relation to any of the publications.
[11] Of the five libellous publications that caused damage to Ms. Rogacki, three were authored by Gettlich, one was authored by Belz, and the other was the letter to the editor. We will briefly summarize the content of the relevant part of each publication.
[12] In the first of the three authored by Gettlich (Article 126), she accused Rogacki of falsely alleging that the Polish government was racist and xenophobic. Gettlich questioned Rogacki’s competence to represent Poles at an upcoming conference in the light of her unjustified criticism of the Polish government. In the second article authored by Gettlich (Article 150), she alleged that Rogacki had used her position as president of the CPC to advance her own personal financial interests. In the third article (Article 154), Gettlich repeated her allegation that Rogacki had falsely accused the Polish government of being racist and xenophobic and she further alleged that Rogacki had failed to account to another Polish organization for funds granted to that organization by the Canadian government. The respondent was in a position of trust with that Polish organization when the funds were advanced to it by the Canadian government. Finally, in the third publication, Gettlich alleged that Rogacki was a liar.
[13] In the article authored by Belz (Article 140), he accused Rogacki of engaging in various unspecified corrupt practices while president of the CPC. He also alleged that she used her position as president for personal financial gain.
[14] The letter to the editor (Article 159) acknowledged and praised the criticism of Ms. Rogacki that had appeared in the earlier articles. The letter went on to refer to Ms. Rogacki’s “dirty tricks” and “distortion of facts”. The letter referred to her as a “MONSTER”.
III The Grounds of Appeal
[15] We will address in some detail the appellants’ submissions relating to the jury instructions on the defence of fair comment and the award of aggravated damages in the absence of a finding of malice. Before doing so, however, we will refer briefly to some of the other many grounds of appeal.
[16] Counsel for the appellants contended that the jury’s answers to the specific questions concerning each of the publications indicates that the jury used the publication it had found not to have injured the plaintiff’s reputation and the publication it found to have been fair comment in quantifying the respondent’s damages. This is not a reasonable reading of the jury’s answers to the questions. The jury were no doubt reasonable intelligent people. Having specifically found that one publication did not injure the respondent’s reputation and that another was fair comment, we see no reason to speculate that they may have somehow used those articles to augment the damage award.
[17] Counsel for the appellants, by closely parsing the language used in the questions put to the jury and, in particular question number 9, also developed a submission that the jury had gone beyond “the words complained of” in the offending publications in assessing damages. We think this is speculation. The questions put to the jury considered as a whole, clearly focussed the jury’s attention on the specific parts of the publications that formed the basis for Ms. Rogacki’s libel claim. We note that it was not suggested at trial that the wording of the questions could mislead the jury in the manner complained of on appeal.
[18] Counsel next submitted that the jury’s findings as revealed by their answers to the specific questions were so inconsistent as to compel the conclusion that their verdicts are unreasonable. This argument is based primarily on the jury’s rejection of the defence of fair comment in relation to all but one of the articles (Article 145).
[19] The defence of fair comment has to be considered and applied individually to each of the challenged publications. While counsel for the appellants would equate the accusations and allegations in the article that the jury was not satisfied went beyond fair comment with the accusations and allegations made in the other publications, that is not the only reasonable interpretation of the various publications. There was ample room to draw distinctions in the language used and the allegations made in the various publications. The fact that the jury did not reach the same conclusion as to the applicability of the fair comment defence in respect of each of the publications demonstrates that the jury considered that defence separately as it related to each publication.
[20] Counsel for the appellants argued that in relation to some of the publications, the trial judge failed to limit the jury’s consideration of the meaning to be attributed to the publications to the meanings alleged in the pleadings. This argument was not raised at trial and is not supported by a comparison of the pleadings with the jury instructions. Rogacki pleaded and relied on what she alleged were the natural and ordinary meanings to be taken from the publications. Her interpretation of the relevant passages did not vary at any stage of these proceedings. Even if there was some minor deviation from the pleadings, it could not possibly have caused any prejudice to the appellants.
[21] Counsel for the appellants also argued that counsel for the respondent’s closing address at trial was inflammatory and misstated the evidence. None of the several specific objections raised on appeal were raised at trial.
[22] There will seldom be a closing address by counsel that is not open to some criticism. Where an objection to a closing argument is taken for the first time on appeal, however, counsel must demonstrate that any shortcomings or improprieties in counsel’s address were sufficiently serious to undermine the fairness of the trial or put the validity of the verdicts into real doubt. None of the objections brought by the appellants on this appeal come close to clearing that standard.
[23] Counsel for the appellants also argued that the trial judge did not put one of the defences to the jury. Counsel submits that the jury were not told that when considering the quantum of damages they could consider whether Rogacki had first attacked the integrity of the appellants, thereby provoking the attacks made by them on her. Counsel submits that the trial judge had already undermined this defence in the course of the trial by restricting the appellants’ ability to call evidence to support its contention that Rogacki had been behind an attack on the integrity of the appellants.
[24] The objection taken on appeal was not taken at trial. The defence did attempt in the course of the trial to link the respondent to what the defence alleged were improper attacks made on them in the Polish press and by the executive of the CPC. These attempts were not successful. Absent any basis upon which to attribute these articles to Ms. Rogacki, they had no relevance. We see no error in the trial judge’s evidentiary ruling. His failure to put a defence position which was not supported by the evidence did not prejudice the appellants.
(i) The Fair Comment Instruction
[25] The fair comment defence is admirably summarized in R. Brown, The Law of Defamation in Canada 2d ed. (Toronto: Thomson Professional Publishing, 1999) at 15.1:
Everyone is entitled to comment fairly on matters of public interest. Such comments are protected by a qualified privilege if they are found to be comments and not statements of fact, and are made honestly, and in good faith, about facts which are true on a matter of public interest. A comment is the subjective expression of opinion in the form of deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof. In order to be fair, it must be shown that the facts upon which the comment is based are truly stated and that the comment is an honest expression of the publisher’s opinion relating to those facts [footnotes omitted].
[26] The jury concluded that the impugned portions of the publications in issue were all statements of opinion. There was no dispute that the publications related to matters of public interest.
[27] The applicability of the defence of fair comment turned mainly on whether the appellants could establish that the facts upon which their opinions were based were true. In the course of his instruction, the trial judge said:
The second ingredient of the defence of fair comment to which I referred is that the facts upon which the comments were made must be true, and that there must be no misstatement of the facts upon which the comments were based. The burden is on the defendant to prove the truth of the statement of fact.
[28] Neither counsel objected to the part of the jury instruction quoted above. Counsel for Rogacki did, however, ask the trial judge to tell the jury that the defence of fair comment could not protect any untrue allegations of criminal conduct made by the appellants against Rogacki. Counsel for the appellants asked the trial judge to tell the jury that the defence of fair comment allowed for wide latitude in the kind of language used to express the opinion and the severity of the opinions which could be expressed.
[29] The trial judge acceded to both requests. He recalled the jury and gave the following instruction:
In the first case with respect to fair comment, if you find that there are allegations or inferences that can be reasonably drawn that infer that the plaintiff was committing a criminal offence, that would exceed the limits to which a person can fairly comment. This refers to corrupt practices, Mafia, failing to account for government grants. If you consider these would be criminal offences or could be criminal offences, are criminal offences, then again that would exceed the limits with respect to the defence of fair comment and that defence would be negatived.
Now, secondly, if you concur that or agree that there is room for fair comment because the facts that you find are true, are true, this is something you must find before you even get to fair comment, then a person can comment in a harsh or vitriolic or severe manner if the person honestly believes it [emphasis added].
[30] Counsel for the appellants submit that in the recharge, the trial judge effectively took away the defence of fair comment in respect of any of the publications that the jury determined could be allegations of criminal conduct against Rogacki.
[31] No authority was cited by either counsel that supports the position that the defence of fair comment cannot extend to allegations of criminal conduct much less allegations which could refer to criminal conduct. There is, however, considerable dispute as to the exact nature of the defence of fair comment where the opinion alleges corrupt or dishonourable motives: Gatley on Libel and Slander, 9th ed. (London, Sweet and Maxwell), 1998 at 264-68.
[32] There may be merit in counsel’s submission, however, we need not delve into this controversy. Even if the recharge was in error and effectively withdrew the fair comment defence, at least with respect to some of the publications, this instruction could not have prejudiced the appellants. To make out a fair comment defence, the appellants were obliged to identify the facts upon which the opinions in the impugned publications were based. They were also obligated to establish the truth of those facts upon which the opinions were based. The appellants made no attempt at trial, or even on appeal, to identify the facts which they contended were true and provided a basis for the opinions expressed in the impugned publications. The appellants could not rely on the facts set out in the impugned passages to support the fair comment defence as the jury were satisfied that those facts were not true.
[33] Two examples of the appellants’ failure to establish the necessary evidentiary foundation for the fair comment defence will suffice. In Article 126, Gettlich alleged that Rogacki had accused the Polish government of being racist and xenophobic. Gettlich then offered the opinion, in the form of a rhetorical question, that someone who would so insult the Polish government was incompetent to represent Poles at an international conference. The latter opinion is fair comment only if the factual assertion that Rogacki described the Polish government as racist and xenophobic is shown to be true. At its best from the appellants’ perspective, the evidence indicates that in an interview, Rogacki referred to one aspect of one piece of Polish legislation as potentially an example of racism and xenophobia. There was no evidence upon which the jury could reasonably find that the claim by the appellants that Rogacki had referred to the government of the Republic of Poland as racist and xenophobic was true. Consequently, any opinion based on that alleged fact could not constitute a fair comment within the meaning of the defence.
[34] The second example of the failure to prove the facts underlying the alleged fair comment is evident from a consideration of Article 154. In that article, Gettlich offered the opinion that Rogacki had acted in an arrogant and highhanded manner in her dealings with a request from a Polish organization (the Polish Combatants Association) for an accounting of certain funds that had been provided to that organization by the Canadian government. In support of that opinion, Gettlich had written that Rogacki had been asked publicly by members of that organization for an accounting and had refused to provide one. There was no evidence at trial that she had ever refused to provide an accounting of the funds provided to the organization by the Canadian government. As there was no evidence to support the fact which the appellants relied on as the basis for the opinion of Rogacki’s character expressed in Article 154, that opinion could not be fair comment.
[35] We are satisfied that on the evidence adduced at this trial, fair comment was not a viable defence to any of the five articles on which the jury’s verdict was based.
(ii) The Aggravated Damages Award
[36] The jury awarded $150,000 in general damages. Of that, $15,000 was attributed to Gettlich. The jury also awarded aggravated damages in the sum of $100,000. That award was made solely against Belz. Belz takes issue with the aggravated damages award. To appreciate his argument, it is necessary to briefly revisit the jury’s findings with respect to liability.
[37] It will be recalled that in the liability segment of the trial, Belz and his co-defendants relied upon the defence of fair comment. Rogacki resisted that defence in two ways. First, she maintained that it was not made out on the evidence. Second, she argued that even if it was, it was negated by the fact that Belz and his co-defendants were motivated by actual malice when they published the defamatory articles.[^1]
[38] As has been pointed out, the jury largely rejected the defence of fair comment. By the same token, they did not accept that Belz and his co-defendants were motivated by actual malice at the time of publication. In response to a question – “Was there malice on the part of the defendant Z. Belz and Gazeta Inc.”, four jurors replied “Yes” and two said “No”.
[39] Belz submits that in light of the jury’s failure to find malice, the award of aggravated damages cannot stand because as a matter of law, such an award can only be made upon a finding that the defendant was motivated by actual malice. In support of his position, he relies upon the following statement by Cory J. in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 190:
If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff [emphasis added and authorities omitted].
[40] Framed somewhat differently, as we understand his position, Belz maintains that the award of aggravated damages cannot stand because it is inconsistent with the jury’s finding that he was not motivated by actual malice at the time he published the defamatory articles.
[41] We would not give effect to that submission. In our view, it rests on the faulty premise that the inquiry into actual malice at the liability stage is identical to the inquiry into actual malice at the damages stage. We see the matter differently. Specifically, we believe that for the purpose of damages, the time frame within which a finding of actual malice will be relevant is much broader than it is for liability. If that is so, then a finding of “no malice” at the liability stage will not necessarily preclude, as inconsistent, a finding of malice at the damages stage.
[42] The view we take of the matter accords with Cory J.’s description of the term “actual malice” in the damages context. That description is found in para. 190 of Church of Scientology of Toronto, supra, which, for convenience, is reproduced in full below:
If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff … The malice may be established by intrinsic evidence derived from the libellous statement itself and the circumstances of its publication, or by extrinsic evidence pertaining to the surrounding circumstances which demonstrate that the defendant was motivated by an unjustifiable intention to injure the plaintiff [emphasis added and authorities omitted].
[43] Reading paragraph 190 as a whole, we understand Cory J. to be saying that for the purpose of aggravated damages, actual malice will have been established if it is shown that the defendant was motivated by an unjustifiable intention to injure the plaintiff. Whether Cory J. meant that description to be exhaustive is something we need not determine. For present purposes, suffice it to say that it encompasses the term “actual malice” as that term is used in the liability context.[^2] In other words, for liability purposes, actual malice will have been established if it is shown that the defendant was motivated by an unjustifiable intention to injure the plaintiff.
[44] The jury in the present case was told just that. In his charge on malice and its relationship to the defence of fair comment, the trial judge instructed the jury that, among other things, malice meant “[a]cting out of spite or ill-will or with an unjustifiable intent to injure the plaintiff”. Taking that instruction together with the jury’s finding on malice, it is plain that for liability purposes, the jury was not satisfied that Belz was motivated by an unjustifiable intention to injure Rogacki.
[45] That then leads to the critical question. If Belz was not motivated by actual malice for liability purposes, how can he be liable for aggravated damages when such damages are contingent upon a finding of actual malice? For reasons that follow, we believe that the answer lies in the wider time frame within which a finding of malice will be relevant for the purpose of damages than for liability.
[46] At the liability stage, the focal point of the inquiry is the defendant’s state of mind at the time of publication. As Schroeder J.A. explained in Boland v. Globe & Mail, supra, at pp. 737-38:
[T]he defendant’s state of mind when publishing the alleged libel is a matter directly in issue when this defence [fair comment] is pleaded, and it will fail if the jury are satisfied that the libel is malicious [emphasis added].
[47] A wide range of evidence may be led to establish actual malice at the time of publication. In Leenen, supra, at para. 143, Cunningham J. correctly identified the various sources of evidence as follows:
Evidence of malice may be intrinsic or extrinsic and malice may be inferred from the language used in the defamatory statements. Extrinsic evidence consists of evidence apart from the statements themselves from which the trier of fact can infer some improper motive and a court will look at the conduct of the defendant throughout the course of events both before and after the defamatory publication [emphasis added].
[48] As this passage indicates, post-publication conduct may properly be taken into account in assessing the state of mind of the defendant at the time of publication. In Defamation: Law, Procedure and Practice, supra, at p. 150, David Price explains the relevance of post-publication conduct in the liability context as follows:
Since the court is concerned with the state of mind of the defendant at the time of publication it might be thought that his conduct after publication should be irrelevant. However, juries have often found that the way a defendant behaves after he has published the defamatory statement is a good indication of his mental state at the time of publication.
[49] Turning to the damages stage, the time frame within which a finding of actual malice will be relevant is not tied to the time of publication. On the contrary, while it certainly includes the time of publication, it extends beyond that time frame to the conclusion of the trial. As Cory J. observed at para. 189 in Church of Scientology of Toronto, supra:
Like general or special damages, they [aggravated damages] are compensatory in nature. Their assessment requires consideration by the jury of the entire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial [emphasis added].
[50] Later, at para. 191, Cory J. outlined some of the factors that a jury could properly take into account in assessing whether an award of aggravated damages should be made. Bearing in mind the focus of the inquiry – was the defendant motivated by actual malice which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff – he continued:
There are a number of factors that a jury may properly take into account in assessing aggravated damages. For example, was there a withdrawal of the libellous statement made by the defendants and an apology tendered? If there was, this may go far to establishing that there was no malicious conduct on the part of the defendant warranting an award of aggravated damages. The jury may also consider whether there was a repetition of the libel, conduct that was calculated to deter the plaintiff from proceeding with the libel action, a prolonged and hostile cross-examination of the plaintiff or a plea of justification which the defendant knew was bound to fail. The general manner in which the defendant presented its case is also relevant. Further, it is appropriate for a jury to consider the conduct of the defendant at the time of the publication of the libel. For example, was it clearly aimed at obtaining the widest possible publicity in circumstances that were the most adverse possible to the plaintiff [emphasis added]?
[51] As is evident from that passage, for the purpose of aggravated damages, particular attention will be paid to the defendant’s post-publication conduct. How did the defendant behave upon being notified of the libel? Did the defendant take steps to ameliorate the harm to the plaintiff or aggravate it? If the latter, were the steps taken by the defendant motivated by actual malice? If so, then it matters not whether the defendant was motivated by actual malice from the very beginning, when the libel was published, or thereafter, when the defendant was put on notice.
[52] In short, we see no difficulty conceptually with the notion that a defendant can act without malice at the time of publication and with malice thereafter. That holds true regardless of the fact that the disparate findings may (and often will) rest upon the same evidence. Illogical though that may seem, it makes sense once it is understood that the focus of the inquiry into malice at the liability stage (the time of publication) is much narrower than the focus of the inquiry at the damages stage (pre-publication to the conclusion of the trial).
[53] The logic becomes especially apparent in those cases where the evidence of malice consists largely of post-publication conduct. For liability purposes, such conduct is treated as circumstantial evidence which the trier of fact may take into account in assessing the defendant’s state of mind at the time of publication. Powerful though such evidence may be in establishing malice after the fact, it may fall short of establishing malice at the time of publication. In these circumstances, the disparate findings cannot be said to be inconsistent. On the contrary, both can exist.
[54] For these reasons, we do not agree with Belz’s submission that the aggravated damages award against him is inconsistent with the jury’s finding of “no malice” at the liability stage.
[55] Belz’s second complaint is that the jury was not properly instructed on the law with respect to aggravated damages. In particular, he submits that the trial judge erred in failing to direct the jury that before an award of aggravated damages could be made, they had to be satisfied that the defendant was motivated by actual malice.
[56] We would not give effect to that ground. The trial judge told the jury that the “damages may be aggravated by the manner in which, or the motives by which, the statements were made or persisted in” [emphasis added]. He also instructed the jury that they could award aggravated damages if they were “satisfied that the defendant has been guilty of insulting, highhanded, spiteful, malicious, or oppressive conduct which increases the mental distress – the humiliation, indignation, anxiety, grief, fear and the like suffered by the plaintiff as a result of being defamed”. The latter instruction tracks the words used by Robins J.A. in Walker v. CFTO Ltd. (1987), 59 O.R. (2d) 104 at 111 to describe the nature of aggravated damages and it was approved by Cory J. in Church of Scientology of Toronto, supra, at para. 188.
[57] Accordingly, we think the trial judge’s instructions were adequate. In the future, we would recommend that juries be told of the need to find actual malice before an award of aggravated damages can be made.
[58] Even if we had come to a different conclusion on the adequacy of the trial judge’s instructions, we would not have directed a new trial on the issue of aggravated damages. In our view, the jury’s finding would necessarily have been the same had they been told that the award of aggravated damages could only be made upon a finding of actual malice. Specifically, we believe that the evidence of post-publication malice on the part of the appellant Belz was extremely powerful. Some examples include:
- Belz’s failure to apologize to the respondent to this day;
- Rogacki was required to endure a difficult and lengthy trial;
- Rogacki was subjected to a prolonged and hostile cross-examination;
- the defence of justification was pleaded when, to Belz’s knowledge, it was bound to fail;
- the libel was repeated and republished to a wide audience in the course of the trial; and
- Belz’s post-publication conduct was manifestly aimed at causing serious harm to Rogacki’s reputation in the Polish community and it served to increase her mental distress and humiliation.
[59] Accordingly, we would not interfere with the jury’s award of aggravated damages. We note that Belz takes no issue with the amount of the award.
[60] To the extent that paragraph 1 of the judgment may be taken as indicating that Belz and Gazeta Inc. are jointly responsible for the award of aggravated damages, it should be varied to reflect the jury’s express finding that Belz is solely responsible. Counsel for Rogacki does not oppose this variation.
IV The Costs Award at Trial
[61] Although the appellants did not, as they should have, file a notice of application for leave to appeal the costs awarded at trial, counsel did argue in his factum that the trial judge erred in awarding costs on a substantial indemnity basis. Counsel did not address this issue in oral argument.
[62] Counsel for Rogacki responded to the appellants’ argument concerning costs in his factum and did not rely on the failure of the appellants to file the proper notice of application for leave to appeal. We will address the merits of this argument.
[63] We are satisfied that we should not interfere with the costs awarded at trial. The appellants were represented by one counsel at trial, and on appeal, and have presented a common front throughout the proceedings. It was appropriate for the trial judge to make the costs order against all of the appellants and to draw no distinction among them, despite the fact that the jury quantified Gettlich’s liability at a lower amount than the liability of the other appellants.
[64] In the trial judge’s brief reasons concerning costs, he indicates that:
Now that defamation is found, the plaintiff shouldn’t have to pay any money to present the case to the court.
[65] We do not agree that a successful plaintiff in a defamation action should routinely be awarded costs on a substantial indemnity basis: Laufer v. Bucklaschuk (1999), 181 D.L.R. (4th) 83 at 124-25 (Man. C.A.), leave to appeal refused, [2000] S.C.C.A. No. 77.
[66] In this case, however, the appellants made serious unfounded allegations against Rogacki, some of which suggested criminal conduct on her part. The appellants pleaded justification and maintained that position throughout the proceedings. Rogacki also offered to settle the suit based on an apology plus payment of her legal costs. The result at trial was substantially better for Rogacki than the terms of that offer. These factors taken in combination justified an award of costs on a substantial indemnity basis.
V Conclusion
[67] Subject to the variation referred to in para. 60, the appeal is dismissed. Counsel for Rogacki has 10 days from the release of these reasons to file written submissions of no more than 6 pages double spaced as to the appropriate disposition of the costs of the appeal. Counsel for the appellants will have 10 days from the receipt of Rogacki’s submissions to respond to those submissions. The response shall be no more than 6 pages double spaced.
RELEASED: “DD” “SEP 01 2004”
“Doherty J.A.”
“M.J. Moldaver J.A.”
“I agree K. Feldman J.A.”
[^1]: The defence of fair comment is negated if the plaintiff can establish actual malice at the time of publication: see Boland v. Globe & Mail Ltd., [1961] O.R. 712 at 735 (Ont. C.A.) and Leenen v. Canadian Broadcasting Corp. (2000), 48 O.R. (3d) 656 at 706-707 (Ont. S.C.J.), aff’d (2001), 54 O.R. (3d) 612 (Ont. C.A.), leave to appeal denied S.C.C. Bulletin 2002 at 69.
[^2]: Although the term actual malice does not lend itself to a precise definition in the liability context, it is generally accepted that actual malice will have been established if it is shown that the defendant acted primarily in furtherance of an improper motive or ulterior purpose. Usually, but not always, the improper motive will consist of an unjustifiable intention or desire to injure the plaintiff. (See generally: David Price, Defamation: Law, Procedure and Practice (London: Sweet & Maxwell, 1997) at 143-147; Patrick Milmo and. W.V.H. Rogers, eds., Gatley on Libel and Slander, 9th ed. (London: Sweet & Maxwell, 1998) at 425-29 and 439; Raymond E. Brown, Defamation Law: A Primer (Toronto: Thomson Carswell, 2003) at 184 and 188-191 and the cases referred to by Professor Brown at 188, footnotes 16 through 21.