Astley v. Verdun, 2008 ONCA 728

CITATION: Astley v. Verdun, 2008 ONCA 728

DATE: 20081024

DOCKET: C48843

COURT OF APPEAL FOR ONTARIO

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Robert M. Astley

Plaintiff (Respondent)

and

J. Robert Verdun

Defendant (Appellant)

J. Robert Verdun, acting in person

D. H. Jack, for the respondent

Heard & released orally: October 21, 2008

On appeal from the order of Justice Peter A. Cumming of the Superior Court of Justice, dated April 29, 2008 and reported at 2008 CanLII 19204 (ON S.C.).

ENDORSEMENT

[1] The appellant appeals from the decision of Cumming J., which granted summary judgment dismissing his counterclaim against the respondent, and dismissed his cross-motion to amend his statement of defence to include a defence of equitable set-off.

[2] The appellant argues that the motion judge erred in holding that in the peculiar circumstances of this case, the appellant was required to provide to the respondent notice under s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12 (the “Act”) prior to delivering his counterclaim, and that the motion judge further erred in dismissing his motion to amend his statement of defence so as to convert the counterclaim into a defence of equitable set-off. We disagree.

[3] Section 5(1) of the Act states:

5(1) No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.

[4] This court’s decision in Watson v. Southam Inc. (2000), 2000 CanLII 5758 (ON CA), 189 D.L.R. (4th) 695 confirmed that a s. 5(1) notice must be given to all defendants in a libel action arising out of a newspaper publication. The fact that the appellant’s claim in the present case was brought by way of counterclaim is not, in our view, a reason to depart from this established case law. The last version of the appellant’s pleading makes it clear that the damages claimed for defamation relate to the republication of the allegedly defamatory statements in newspapers. This triggers the application of s. 5(1) of the Act.

[5] In our view, the motion judge also properly dismissed the appellant’s motion to amend his statement of defence. The proposed amendments will have no practical consequence – either the appellant will lose, in which case the set-off will be of no effect, or, he will win, and there will accordingly be nothing to set-off. Further, the appellant has not met the five requirements for an equitable set-off.

[6] For these reasons, we dismiss the appeal with costs to the respondent in the amount of $6,000, inclusive of disbursements and GST.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”