Romano v D'Onofrio et al. [Indexed as: Romano v. D'Onofrio]

77 O.R. (3d) 583

[2005] O.J. No. 4969

Docket: C42882

Court of Appeal for Ontario,

Laskin, Goudge and Feldman JJ.A.

November 23, 2005

Civil procedure -- Summary judgment -- Motion judge erring by deciding significant questions of law which were not fully settled in jurisprudence on motion for summary judgment under Rule 20 -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20.

Torts -- Defamation -- Procedure -- Motion judge erring by deciding significant questions of law concerning interpretation of term "broadcast" in s. 1(b) of Libel and Slander Act and interpretation of s. 16 of Act on motion for summary judgment -- Libel and Slander Act, R.S.O. 1990, c. L.12, ss. 1(b), 16.

The defendants in a defamation action moved for summary judgment under Rule 20 of the Rules of Civil Procedure, admitting that the impugned words were spoken as alleged. The motion was granted. The plaintiff appealed.

Held, the appeal should be allowed.

The motion judge erred by deciding a significant question of law involving the definitive interpretation of a section of the Libel and Slander Act (i.e., the scope of the term "broadcast") in the context of a Rule 20 motion. Matters of law which have not been settled fully should not be disposed of at that stage of the proceedings. The type of interpretative analysis engaged in by the motion judge should only be done in the context of a full factual record. For the same reason, the motion judge erred in holding that s. 16 of the Act did not apply to the plaintiff, a law student, as the section required him to be a lawyer at the time of the impugned words in order for the words to amount to slander per se. Finally, there was some evidence on the record that could constitute special damage and therefore preclude the dismissal of the action for slander on a motion for summary judgment.

APPEAL from a summary judgment of Ducharme J., 2004 45963 (ON SC), [2004] O.J. No. 4989, 246 D.L.R. (4th) 720 (S.C.J.) dismissing a defamation action.

Cases referred to Bendix Foreign Exchange Corp. v. Integrated Payment Systems Canada Inc., [2005] O.J. No. 2241, 139 A.C.W.S. (3d) 1092 (C.A.); Jane Doe 1 v. Manitoba, [2005] M.J. No. 335, 2005 MBCA 109 (C.A.); Law Society of Upper Canada v. Ernst & Young (2003), 2003 14187 (ON CA), 65 O.R. (3d) 577, [2003] O.J. No. 2691, 227 D.L.R. (4th) 577, 38 C.P.C. (5th) 40 (C.A.), supp. reasons [2003] O.J. No. 3751 (C.A.) Leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 358]; R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 1991 2731 (ON CA), 5 O.R. (3d) 778, [1991] O.J. No. 1962, 57 O.A.C. 81, 29 A.C.W.S. (3d) 1062 (C.A.); Spasic Estate v. Imperial Tobacco Ltd. (2000), 2000 17170 (ON CA), 49 O.R. (3d) 699, [2000] O.J. No. 2690, 188 D.L.R. (4th) 577, 47 C.P.C. (4th) 12, 2 C.C.L.T. (3d) 43 (C.A.) [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 547] Statutes referred to Libel and Slander Act, R.S.O. 1990, c. L.12, ss. 1(1)(b), 2, 16 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20 [page584]

Howard W. Winkler, for appellant. Allan D. Powell, for respondent.

The judgment of the court was delivered by

[1] FELDMAN J.A.: -- The appellant appeals the dismissal of his libel and slander action on a motion for summary judgment.

Facts

[2] In November 2001, the appellant was a third-year law student at Osgoode Hall Law School and a member of the Minturo Social Club, an Italian club. On November 11, 2001, the club held its annual general meeting at a banquet hall where approximately 150 to 200 people attended. At this meeting the appellant rose to address an issue that had been raised when the president of the club, the respondent D'Onofrio, is alleged to have said into the microphone:

You can't speak, you're not a member, you can't speak, go sit down.

The appellant then returned to his seat and, as he did so, the respondent D'Onofrio allegedly said:

He is just a troublemaker and he only came here to cause trouble and confusion, like he always does. This young person is a liar. He tells lies to violently piss people off.

(English translation of Italian)

[3] The appellant brought an action for libel, slander and intentional infliction of mental suffering. Following discoveries, the respondents moved for summary judgment admitting for the purpose of the motion that the impugned words were spoken as alleged. The motion judge dismissed the claims for libel and slander on the following grounds:

(1) The alleged defamatory actions are not libel because they do not constitute a "broadcast" under s. 1(1)(b) of the Libel and Slander Act, R.S.O. 1990, c. L.12.

(2) The action cannot succeed as slander per se under s. 16 of the Act because the appellant was not a lawyer at the time.

(3) The action cannot succeed as slander because the appellant led no evidence of special damage. [page585]

Analysis

(1) The claim for libel

[4] If the action is a claim for libel as opposed to slander, then damages are at large and no special damage need be alleged or proved.

[5] Libel is defined in s. 2 of the Libel and Slander Act to include a "broadcast", which is defined in s. 1(1)(b) as "the dissemination of . . . sounds of all kinds, intended to be received by the public either directly or through the medium of relay stations, by means of . . . cables, wires, fibre-optic linkages or laser beams".

[6] It was agreed that the microphone and loudspeaker used by the respondent used wires and cables. The motion judge determined, as a question of law, whether a microphone and loudspeaker that used wires and cables constituted a broadcast within the meaning of the Act, and therefore a libel. He concluded that at common law, using a microphone to amplify sound constituted slander; the words of the Act were not clear enough to change the common law to make that use libel; and when the definition of broadcast was amended to include wires or cables, the stated intent of the legislature was to include cable television, not words spoken into a microphone at a meeting.

[7] In our view, the motion judge erred by deciding a significant question of law involving the definitive interpretation of a section of the Libel and Slander Act in the context of a Rule 20 [Rules of Civil Procedure, R.R.O. 1990, Reg. 194] motion. This was not a case where the law was settled and could be applied to admitted facts. The scope of the term "broadcast" in the Libel and Slander Act has not been conclusively determined in the case law. As this court stated in R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 1991 2731 (ON CA), 5 O.R. (3d) 778, [1991] O.J. No. 1962 (C.A.), at p. 782 O.R.: "Matters of law which have not been settled fully in our jurisprudence should not be disposed of at this [interlocutory] stage of the proceedings." See also Bendix Foreign Exchange Corp. v. Integrated Payment Systems Canada Inc., [2005] O.J. No. 2241, 139 A.C.W.S. (3d) 1092 (C.A.), at para. 6 and Jane Doe 1 v. Manitoba, [2005] M.J. No. 335, 2005 MBCA 109 (C.A.), at paras. 19-23.

[8] The decision whether words spoken at a public gathering into a microphone constitutes libel or slander under the Act is both novel and significant and involves an analysis not only of the microphone technology and perhaps other technologies for [page586] comparison and context, but also the policy behind the distinction between libel and slander under the Act.

[9] That type of interpretive analysis should only be done in the context of a full factual record, possibly including appropriate expert evidence: Spasic Estate v. Imperial Tobacco Ltd. (2000), 2000 17170 (ON CA), 49 O.R. (3d) 699, [2000] O.J. No. 2690 (C.A.) at paras. 22-23, leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 547; see also Law Society of Upper Canada v. Ernst & Young (2003), 2003 14187 (ON CA), 65 O.R. (3d) 577, [2003] O.J. No. 2691 (C.A.) at para. 50, leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 358. The sketchy evidence put forward by the respondents was insufficient to discharge its onus to demonstrate that this could not be a broadcast.

(2) Slander per se

[10] Under s. 16 of the Act, a plaintiff need not prove special damage if the words spoken are calculated to disparage the person in "any office, profession, calling, trade or business held or carried on by the plaintiff at the time of the publication ...".

[11] The motion judge concluded that the section required the person to be a lawyer at the time. He found that as a third- year law student who would not be a member of the Law Society for another 19 months, the appellant was neither engaged nor about to be engaged in the practise of law.

[12] Again, as this finding required the motion judge to determine a novel question of law and apply it to the facts of the case, such a determination should not be made without a full factual record and findings of fact made by a trier of fact on that record. For example, there was evidence that as a result of this event, the appellant withdrew from the Italian social club and was unable to capitalize on his community affiliations in establishing his legal practice.

(3) The need to prove special damage in an action for slander

[13] We agree with the appellant that there was some evidence on the record that could constitute special damage and therefore preclude the dismissal of the action for slander on a motion for summary judgment. That evidence was (1) the assertion that the appellant was essentially forced to withdraw from the Italian social club causing him serious social hardship as well as business hardship, and (2) the evidence of mental suffering put forward primarily for the claim of intentional infliction of mental suffering. [page587]

[14] The claim for slander should therefore not have been dismissed.

Conclusion

[15] The order granting summary judgment to the respondents with respect to the appellant's actions for libel and slander is set aside and the actions may proceed to trial. Costs of the appeal are payable to the appellant fixed at $12,000. Counsel may make written submissions on the costs of the motion within one week of release of these reasons advising the court of their position or agreement.

Appeal allowed.