Court of Appeal for Ontario

Date: 2017-11-02 Docket: C62544 Judges: MacFarland, Hourigan and Benotto JJ.A.

Between

Dalton White and Sonia White Plaintiffs (Appellants)

and

Norman White, Karen White, Neville White (a.k.a. Junior) and Melville White Respondents (Respondents)

Counsel

Matthew Tubie, for the appellants

Rick Bickhram, for the respondents

Heard and Released

Heard and released orally: October 26, 2017

On appeal from the order of Justice Conway of the Superior Court of Justice, dated July 21, 2016.

Reasons for Decision

[1] In our view the issue before the summary motion judge was a question of law: whether describing the deceased as "divorced" in his death certificate could be defamatory of the appellant. The appellant was his former wife. Although divorce proceedings had been started, the divorce was not final at the time of his death. In our view it was perfectly appropriate for the motion judge to deal with this question on a summary judgment motion and we agree with her disposition that those words are not capable of being defamatory of the appellant.

[2] The fresh evidence here, assuming its relevance, does not meet the Palmer v. The Queen, [1980] 1 S.C.R. 759 criteria in any event. These records could have been easily obtained with the exercise of due diligence at the time the motion was argued.

[3] As to the second issue as to whether the matter ought to have been transferred from the estates court to the civil list, this is not a final order in any sense. And while this court has jurisdiction because of the defamation claim, it is a discretionary jurisdiction and here the decision of whether the estates court or the civil court should deal with these matters, is in our view better left to the Superior Court.

[4] The appeal and the motion for fresh evidence are dismissed. Costs of the appeal and of the motion are awarded to the Respondent fixed in the sum of $12,000 inclusive of disbursements and HST.

"J. MacFarland J.A."

"C.W. Hourigan J.A."

"M.L. Benotto J.A."