COURT OF APPEAL FOR ONTARIO

CITATION: Seredy v. RBC Royal Bank of Canada, 2012 ONCA 377

DATE: 20120605

DOCKET: C54725

Juriansz, LaForme and Ducharme JJ.A.

BETWEEN

George Seredy

Appellant

and

RBC Royal Bank of Canada, Greg Peden as servant/agent of Royal Bank of Canada, Aklima Rojan as servant/agent of Royal Bank of Canada

Respondents

George Seredy, in person

Greg Bowden, for the respondents

Heard and released orally: April 20, 2012

On appeal from the judgment of Justice Silja S. Seppi of the Superior Court of Justice, dated January 18, 2011.

ENDORSEMENT

[1] At the end of the jury trial, the trial judge granted the respondents’ motion to withdraw the case from the jury. She characterized the motion as a motion for non-suit and dismissed the appellant’s action for slander. She ordered costs to the respondents in the amount of $57,871.

[2] While the appellant raises several issues, the appeal turns on whether the words alleged to be uttered by the respondents are reasonably capable of carrying a defamatory meaning. The trial judge decided that they were not and dismissed the case.

[3] The trial judge accepted the appellant’s version of the utterances for the purposes of the motion. The appellant testified that one of the bank’s employees said “you are changing your mother’s account without her knowledge. I will not let you do that.” He alleged that another of the bank’s employees said: “I don’t know what you whisper in Hungarian to your mother. She is not aware that you are trying to change her account.”

[4] The trial judge did not find that the utterances were incapable of being accepted by the jury. Rather she decided that as a matter of law the utterances could not carry a defamatory meaning

[5] It happens that these utterances are identical to those alleged in the Statement of Claim. In dismissing the respondents’ summary judgment motion, Baltman J. necessarily determined that the Statement of Claim raised triable issues. Fragomeni J., in refusing the respondents’ application for leave to appeal and Daley J., in refusing the respondents’ motion for security costs, took the same view. The reasons in these earlier decisions, however, are too brief to establish clearly that the judges considered and decided the legal question whether the statements in issue were reasonably capable of imputing criminality.

[6] Before us, counsel for the bank conceded that there may well be circumstances in which the statements could imply that the appellant was seeking to obtain joint title to his mother’s funds by fraudulent means. He argued, however, that on the motion, the trial judge considered the utterances in the context of the surrounding circumstances and found that in those circumstances they were not capable of carrying a defamatory meaning.

[7] If the trial judge assessed the surrounding circumstances, she stepped outside her role. It was for the jury to assess the evidence of the surrounding circumstances. The trial judge, on the motion, had to take all the evidence led at trial – including evidence of the surrounding circumstances – in their most favourable sense to the plaintiff. We note, however, that the trial judge did not allude to any surrounding circumstances to support her conclusion. Rather, she characterized her conclusion as on a question of law.

[8] As a matter of law, we are of the view that the statement that the appellant was seeking joint title without his mother’s knowledge is reasonably capable of carrying the meaning that he was attempting to get access to her funds fraudulently.

[9] We conclude that the trial judge erred by withdrawing this case from the jury. We would allow the appeal with costs fixed in the amount of $3500 all inclusive.

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”

“E. Ducharme J.A.”