Court File and Parties

Citation: Mudford v. Smith, 2010 ONCA 395 Date: 2010-06-01 Docket: C51270

Court of Appeal for Ontario Winkler C.J.O., Goudge and MacPherson JJ.A.

Between:

Carey Mudford and 1555433 Ontario Inc. carrying on business as "Carey Mudford Interior Design" Plaintiffs (Respondents)

and

Peter Smith Defendant (Appellant)

Counsel: Clifford Cole and Nicholas Kluge, for the Appellant Kimberley Morris, for the Respondents

Heard: May 31, 2010

On appeal from the order of the Honourable Justice Edward P. Belobaba of the Superior Court of Justice, dated October 16, 2009.

Appeal Book Endorsement

[1] The appellant Peter Smith appeals from the judgment of Belobaba J., dated 16 October 2009 finding the appellant liable to the respondents for libel arising out of the statements published by the appellant on a personal website and posted by him on two third-party websites.

[2] The appellant contends that the trial judge erred by failing to apply the "substantially true" test to determine the accuracy of the appellant's statements; instead the trial judge set the bar too low by applying a "completely true" test.

[3] We do not accept this submission. The trial judge explicitly stated the proper test – whether the impugned statements were "substantially true" (para. 31). Moreover, a fair reading of his reasons establishes that he properly applied this test. We agree with the trial judge's finding that the defamatory meaning of each of the four statements as found by the trial judge was correct and in each case was not substantially true.

[4] The appellant also submits that the trial judge erred in his application of the doctrine of fair comment in relation to the appellant's statement: "This designer in my view has no integrity."

[5] We disagree. The defence of fair comment requires that the comment be based on correct facts. After a careful review of the record, the trial judge concluded that "The underlying facts are not true...and hence, this statement cannot be supported as a fair comment." We see no basis for interfering with this conclusion.

[6] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $15,000 inclusive of disbursements and GST.