Court of Appeal for Ontario

CITATION: Macdonald v. Canadian Broadcasting Corporation, 2011 ONCA 652

DATE: 20111019

DOCKET: C50795

BEFORE: Winkler C.J.O., Sharpe J.A. and Cunningham A.C.J. (ad hoc)

BETWEEN

Ian Verner Macdonald

Plaintiff (Appellant)

and

Canadian Broadcasting Corporation and Warren Kinsella

Defendants (Respondents)

COUNSEL:

Douglas H. Christie, for the plaintiff (appellant)

Scott C. Hutchison and Brennagh Smith, for the defendants (respondents)

Heard and orally released: September 30, 2011

On appeal from the judgment of Justice Métivier of the Superior Court of Justice dated June 25, 2009.

ENDORSEMENT

[1] We are of the view that the trial judge was correct in concluding the action was statute barred. Section 5(1) of the Libel and Slander Act provides that a plaintiff provide notice within six weeks after an alleged libel has come to the plaintiff’s attention and the onus lies with the plaintiff to show compliance. Here, although the appellant did not see the actual broadcast of April 19, 1996 until the end of August or perhaps early September, it is sufficient that the appellant could reasonably have known of the libel. Actual knowledge does not have to be demonstrated.

[2] In the present case, the appellant, according to the evidence, was, and certainly should have been, reasonably certain about what the respondent, Kinsella, probably said based upon their history of public opposition. When, in May 1996, the appellant learned from Paul Frohm, who ultimately provided the tape, the gist of what had been said and that the broadcast had taken place, he was under a duty to act diligently to ascertain the relevant facts. He did not and offered no explanation as the trial judge found. We agree. The onus was not discharged and his claim was properly dismissed. The trial judge, on the evidence, was justified in finding that the appellant was conveniently vague on key issues and in drawing an adverse inference concerning his lack of diligence. Without question, the appellant ought to have known far in advance at the time he acquired actual knowledge. The evidence clearly demonstrates the appellant’s lack of diligence in the summer of 1996. Because of our conclusion with respect to the issue of notice, it is unnecessary for us to deal with the other issues raised.

[3] The appeal is dismissed.

[4] Costs will be at $25,000, all inclusive.

“W. Winkler C.J.O.”

“Robert Sharpe J.A.”

“Cunningham A.C.J. ad hoc”