Court File and Parties

Citation: Ottawa-Carleton District School Board v. Scharf, 2008 ONCA 154

Date: 2008-03-03

Docket: C47643

Court of Appeal for Ontario

Before: Laskin, Moldaver and Feldman JJ.A.

Between:

Ottawa-Carleton District School Board, Joan Wilson, and Michael Neill Respondents

and

Jane Scharf, Mary Ann Kazmierski and Lorraine Paquin Appellant

Counsel:

Lorraine Paquin in person

John Summers for the respondents Joan Wilson and Michael Neill

Heard: January 15, 2008

On appeal from the judgment of Justice Gerald Morin of the Superior Court of Justice dated August 8, 2007.

Endorsement

[1] The appellant Scharf filed no material and did not appear on the appeal. Accordingly, her appeal is dismissed as abandoned.

[2] The appellant Paquin raised various grounds of appeal. We only found it necessary to call on the respondent with respect to one of them, namely: whether the trial judge erred in finding that the appellant participated jointly with the co-defendant Scharf in publishing the libel.

[3] On this record, to find the appellant jointly liable with Ms. Scharf, the trial judge had to be satisfied that the appellant provided the defamatory information to Ms. Scharf with the understanding and intention that Ms. Scharf would publish it. (See Stopforth v. Goyer (1978), 2 O.R. (2d) 262 at 263 (H.C.)).

[4] In finding the appellant liable, the trial judge found that it was the appellant who provided Scharf with the defamatory information contained in the "News Release" which Scharf published on the internet. He further found that the appellant was "aware of the 'News Release' prior to it being released and [that she] was in full agreement with it being sent out". Accordingly, he concluded that both Scharf and the appellant were "fully responsible" for the publication of the defamatory information.

[5] The appellant submits that the trial judge's finding of "joint responsibility" is contrary to her evidence and that of Ms. Scarf. In short, while the appellant concedes that she provided Scharf with the defamatory information, she claims that she had no control over Scharf and it was Scharf's decision, not hers, to publish the defamatory information on the internet. Scharf confirms the appellant's testimony on this point.

[6] Although the trial judge did not specifically refer to the evidence of the appellant or Scharf on this issue, it is apparent from his conclusion that he rejected their testimony as incredible. In finding to the contrary, he relied on the appellant's admission, contained in her statement of defence, that "she fully agrees with and supports the drafting of and the release of the 'News Release' by the defendant Scharf".

[7] In our view, while it would have been preferable had the trial judge adverted to the evidence of the appellant and Ms. Scharf and explained in greater detail why he disbelieved it, we are not persuaded that his failure to do so constituted reversible error. It was open to the trial judge to find against the appellant on this issue and we see no basis for interfering with his credibility assessment.

[8] Accordingly, the appeal is dismissed. In the circumstances, we believe that the parties should bear their own costs.

Signed: "John Laskin J.A."

"M. J. Moldaver J.A."

"K. Feldman J.A."