Canadian Union of Postal Workers v. Quebecor Media Inc. et al.

[Indexed as: Canadian Union of Postal Workers v. Quebecor Media Inc.]

Ontario Reports

Court of Appeal for Ontario,

LaForme, Pardu and L.B. Roberts JJ.A.

March 14, 2016

129 O.R. (3d) 711 | 2016 ONCA 206

Case Summary

Torts — Defamation — Notice — Plaintiff's notices under s. 5(1) of Libel and Slander Act specifying that matters complained of were statements and inferences in one Internet broadcast and one newspaper article and Internet blog that plaintiff was supportive of and partners with terrorist organizations and hate groups — Notices sufficiently specific to allow defendants to know essence of plaintiff's complaint and to decide how to respond — Libel and Slander Act, R.S.O. 1990, c. L.12, s. 5(1).

The plaintiff sued the defendants for damages for defamation. On a motion by the defendants under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the motion judge held that the plaintiff's notices did not comply with the requirements of s. 5(1) of the Libel and Slander Act because, while they identified the matters complained of, they failed to sufficiently specify those matters. The action was dismissed. The plaintiff appealed. [page712]

Held, the appeal should be allowed.

It is not necessary that s. 5(1) notices contain the same level of particularity as that which is required of a statement of claim. The notices in this case clearly specified that the matters complained of where the statements and inferences from one specified Internet broadcast and one specified newspaper article and Internet blog post that the plaintiff and its members were supportive of and partners with terrorist organizations and hate groups. The notices were sufficiently specific to allow the defendants to know the essence of the plaintiff's complaint and to decide how to respond.

Cases referred to

Grossman v. CFTO-T.V. Ltd. (1982), 1982 1768 (ON CA), 39 O.R. (2d) 498, [1982] O.J. No. 3538, 139 D.L.R. (3d) 618, 16 A.C.W.S. (2d) 311 (C.A.) [Leave to appeal to S.C.C. refused (1983), 39 O.R. (2d) 498n, [1983] 1 S.C.R. vi, [1983] S.C.C.A. No. 463]; Gutowski v. Clayton (2014), 124 O.R. (3d) 185, [2014] O.J. No. 6168, 2014 ONCA 921, 379 D.L.R. (4th) 177, 32 M.P.L.R. (5th) 30, 16 C.C.L.T. (4th) 177, 329 O.A.C. 55, 248 A.C.W.S. (3d) 648; Janssen-Ortho Inc. v. Amgen Canada Inc., 2005 19660 (ON CA), [2005] O.J. No. 2265, 256 D.L.R. (4th) 407, 199 O.A.C. 89, 140 A.C.W.S. (3d) 58 (C.A.); Royal Bank of Canada v. Société Générale (Canada), [2007] O.J. No. 1496, 2007 ONCA 302, 31 B.L.R. (4th) 83, 157 A.C.W.S. (3d) 40; Shtaif v. Toronto Life Publishing Co., [2013] O.J. No. 2778, 2013 ONCA 405, 366 D.L.R. (4th) 82, 306 O.A.C. 155, 228 A.C.W.S. (3d) 1188; Siddiqui v. Canadian Broadcasting Corp. (2000), 2000 16920 (ON CA), 50 O.R. (3d) 607, [2000] O.J. No. 3638, 195 D.L.R. (4th) 440, 136 O.A.C. 308, 102 A.C.W.S. (3d) 620 (C.A.) [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 664]; World Sikh Organization of Canada v. CBC/Radio Canada, 2007 CarswellOnt 7649 (S.C.J.)

Statutes referred to

Libel and Slander Act, R.S.O. 1990, c. L.12, s. 5(1)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 21, 21.01(1)(a), 62.02(1)

APPEAL from the order of Pelletier J., [2015] O.J. No. 3892, 2015 ONSC 4511 (S.C.J.) dismissing an action.

David Migicovsky and Karin M. Pagé, for appellant.

Tycho Manson, for respondents Quebecor Media Inc., Sun Media Corporation, TVA Group Inc. and Jerry Agar.

Stephen Cavanagh, for respondent Avi Benlolo.

[1] Endorsement BY THE COURT: -- The appellant appeals the dismissal of its action following the respondents' Rule 21 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] motion. The motion judge held that the appellant's notices did not comply with the requirements under s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12 (the "LSA") because, while they identified the matters complained of by the appellant, they failed to sufficiently specify those matters. [page713]

[2] The parties agree that the standard of review of a motion judge's order under rule 21.01(1)(a) of the Rules of Civil Procedure is one of correctness, as these orders determine questions of law. As a result, no deference is owed on this appeal to the motion judge's analysis and decision.

[3] The appellant submits that the motion judge erred in holding that its s. 5(1) notices were deficient and argues that its notices fulfilled the requirement under s. 5(1) of the LSA that the notices specify the matter complained of by the appellant.

[4] We agree with the appellant's submissions.

[5] It is well established that s. 5(1) notices under the LSA do not have to be in a specific form or reproduce word for word the statements alleged to be defamatory: Grossman v. CFTO-T.V. Ltd. (1982), 1982 1768 (ON CA), 39 O.R. (2d) 498, [1982] O.J. No. 3538 (C.A.), at pp. 501, 503 O.R., leave to appeal to S.C.C. refused (1983), 39 O.R. (2d) 498n, [1983] 1 S.C.R. vi, [1983] S.C.C.A. No. 463; Gutowski v. Clayton (2014), 124 O.R. (3d) 185, [2014] O.J. No. 6168, 2014 ONCA 921, at para. 36. Further, it is not necessary that s. 5(1) notices contain the same level of particularity as required in a statement of claim: World Sikh Organization of Canada v. CBC/Radio Canada, 2007 CarswellOnt 7649 (S.C.J.), at para. 12.

[6] Rather, the matters complained of in a s. 5(1) notice have to be sufficiently specified so that the notice brings home to the defendant the essence of the matter complained of by the plaintiff and gives the defendant the opportunity to analyze the alleged defamation and then decide whether it calls for a correction, apology or retraction: Grossman, at pp. 504-505 O.R.; Siddiqui v. Canadian Broadcasting Corp. (2000), 2000 16920 (ON CA), 50 O.R. (3d) 607, [2000] O.J. No. 3638 (C.A.), at para. 18, leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 664; Shtaif v. Toronto Life Publishing Co., [2013] O.J. No. 2778, 2013 ONCA 405, 306 O.A.C. 155, at paras. 57-58.

[7] The appellant's notices achieved all of those objectives. The broadcast and article in issue were short. Given the contents of the notices, there cannot have been any confusion as to the matters complained of by the appellant.

[8] The notices clearly specified that the matters complained of were the statements and inferences from the July 24, 2014 Internet broadcast and the July 28, 2014 article in the Toronto Sun print newspaper and Internet blog, namely, that the appellant and its members are supportive of and partners with terrorist organizations and hate groups, and that they support Hamas, a terrorist organization, and the genocide of the Jewish people. [page714]

[9] In particular, the appellant's notices reproduced and tracked actual portions of the allegedly defamatory words in the broadcast and the article, and closely paraphrased their essence and allegedly defamatory inferences. Attached to the appellant's notices were proposed draft letters of retraction and apology, which repeated the wording of the allegedly defamatory matters complained of in the appellant's notices.

[10] With respect to the broadcast, the respondent Benlolo submits that the appellant's s. 5(1) notice was invalidated by the inclusion of the retraction notice and draft apology because he (Benlolo) could not bring about the retraction demanded by the appellant, as he had no control over the media defendants.

[11] We do not accept this submission. Section 5(1) of the LSA stipulates only that notice of the matter complained of be given. While the purpose of the notice is, as this court noted in Grossman, Siddiqui and Shtaif, to allow the defendant to know the essence of the plaintiff's complaint and decide how to respond, there is no requirement that the plaintiff suggest a possible resolution or that the defendant accept any proposal that the plaintiff may offer.

[12] The fact that the respondent Benlolo could not carry out the retraction as requested by the appellant did not take away his opportunity to mitigate the appellant's damages by apologizing or taking other steps. The respondent Benlolo is in no different situation from the respondents in Janssen-Ortho Inc. v. Amgen Canada Inc., 2005 19660 (ON CA), [2005] O.J. No. 2265, 256 D.L.R. (4th) 407 (C.A.). In that case, at para. 38, this court observed that although those respondents would not have been in a position to make the decision as to whether or not a retraction would be printed or an apology made, they could take other steps.

[13] With respect to the article, the other respondents argue that the appellant failed to include in its notice the additional allegations pleaded in the statement of claim about the form and placement of the article. As a result, they contend, the appellant's notice is deficient.

[14] We disagree. In the present case, the appellant's notice specified the matter complained of in the article, both with respect to the statements in and the inferences arising from the article in its entirety, and its authors, date and manner of publication. As such, the notice met the requirements of s. 5(1) of the LSA. Any further particularity was required in the appellant's statement of claim, but not in its s. 5(1) notice, which, as already noted, does not have to take any particular form. [page715]

[15] Finally, the respondent Benlolo did not proceed with his cross-appeal concerning the article. He seeks, however, to raise in response to the appeal an additional argument raised in support of his cross-appeal of para. 2 of the motion judge's order, namely, that the appellant, as an unincorporated trade union, has no capacity to bring an action in defamation.

[16] As the motion judge did not decide this issue, para. 2 of his order was an interlocutory order. As a result, the respondent Benlolo was required to obtain leave to appeal to the Divisional Court under rule 62.02(1) of the Rules of Civil Procedure before he could seek to have this argument heard at the same time as the appellant's appeal: Royal Bank of Canada v. Société Générale (Canada), [2007] O.J. No. 1496, 2007 ONCA 302, 31 B.L.R. (4th) 83, at para. 5. He did not do so.

[17] It is therefore not necessary for this court to decide whether an unincorporated trade union has standing to bring an action in defamation. In any event, as the motion judge determined, that issue is best left for trial on a full record.

Disposition

[18] Accordingly, the appeal is allowed and para. 1 of the motion judge's order dismissing the appellant's action is set aside.

[19] The motion judge's costs orders are also set aside. The appellant is entitled to its partial indemnity costs: for the motion, the amount of $10,000; and for the appeal, the amount of $25,000, all inclusive, and jointly and severally payable by the defendants.

Appeal allowed.

End of Document