CITATION: Nanda v. McEwan, 2019 ONSC 125
COURT FILE NO.: DC-18-0035
DATE: 2019 01 07
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RE: Irwin Nanda
Plaintiff (Appellant)
AND:
Derrick McEwan, Avelino Carvalho, Angela Mason and Satish Sharma
Defendants (Respondents)
COUNSEL: I. Iwasykiw for the Plaintiff/Appellant
B. Noorduyn for the Defendants/Respondents
HEARD: December 7, 2018
REASONS FOR DECISION
Ricchetti j.
THE APPEAL AND CROSS APPEAL. 3
THE BACKGROUND.. 3
The Persona. 3
WhatsApp Statements. 3
Poster Statements. 4
The Action. 4
Notice. 4
The Defence. 5
The Motion. 5
The Ruling. 6
THE ISSUES. 6
THE STANDARD OF REVIEW... 7
SUMMARY JUDGMENT MOTIONS IN SMALL CLAIMS COURT PROCEEDINGS. 8
ANALYSIS. 9
ISSUE #1: Should the Deputy Judge have stayed the Action pending an arbitration?. 9
Standard of Review on this Issue. 9
Additional Facts Relating to this Issue. 10
The Position of the Parties. 10
Analysis on this Issue. 11
Conclusion. 15
ISSUE #2: Did the Deputy Judge err in determining the WhatsApp statements were subject to the Libel and Slander Act?. 16
The Applicable Statutory Provisions. 16
The Position of the Parties. 17
The Standard of Review on this Issue. 17
The Law on this Issue. 18
Analysis on this Issue. 20
Conclusion on this Issue. 22
ISSUE #3: Did the Deputy Judge err in failing to deal with the Poster statements?. 22
ISSUE #4: Did the Deputy Judge err in not dealing with the Anti-SLAPP motion?. 23
CONCLUSION.. 24
THE APPEAL AND CROSS APPEAL
[1] Irwin Nanda appeals the order of Deputy Judge Malicki dated April 13, 2018 (“Order”) staying Small Claims Court Action SC-17-823-0000 (the “Action”).
[2] The Defendants’ cross-appeal, seeking:
a) An order that the Action be stayed to permit an arbitration to proceed;
b) An order dismissing the Action; and
c) Alternatively, a direction to Deputy Judge Malicki to decide the Anti-SLAPP motion before him.
THE BACKGROUND
The Persona
[3] The statements at issue were made during an election campaign for the position of President of the Toronto Local of the Canadian Union of Postal Workers (“CUPW”).
[4] Nanda was running for President.
[5] The Defendants are members of CUPW. The Defendants opposed Nanda’s candidacy.
WhatsApp Statements
[6] WhatsApp is an invitation-only internet group messaging service. There are two WhatsApp groups at issue in the Action.
[7] The first WhatsApp group, the "United Gateway East Group", had 183 members. The second WhatsApp group, the "Parcel Group", had 100 members in it.
[8] From on or about January 14, 2017 to on or about January 28, 2017, the Defendants made statements in both WhatsApp groups (“WhatsApp Statements”). Nanda alleges these statements are defamatory.
Poster Statements
[9] On or about January 14, 2017, the Defendants distributed alleged defamatory statements on a series of posters. Some of the posters were distributed by emails, and others were by print (“Poster Statements”).
[10] Nanda alleges the Poster Statements are defamatory.
The Action
[11] On February 6, 2017, Nanda commenced the Action. Nanda relies on sections 1 and 2 of the Libel and Slander Act, R.S.O. 1990, c. L.12 (the “Act”). Nanda claims damages in the amount of $25,000.
[12] Nanda relies on the allegedly defamatory statements in the WhatsApp groups and the Poster Statements.
Notice
[13] The Defendants were given notice of the Appellant’s claim on February 9, 2017. Of note, notice was given three days after the Action was commenced.
The Defence
[14] The Defendants plead, among other things, that the WhatsApp Statements are not a “broadcast” to the “public”, pursuant to the Act.
[15] The Defendants deny the WhatsApp and Poster Statements were defamatory or, alternatively, allege that the statements were justified at law as fair comment, qualified privilege, or public interest communication.
The Motion
[16] The Defendants brought a motion, under Rule 12.02 of the Rules of the Small Claims Court, O. Reg. 258/98, to dismiss the Action on the basis that:
a) The parties were required to arbitrate the dispute under the CUPW Constitution (the “Constitution”) before commencing a court action;
b) Nanda failed to give notice under the Act prior to commencing the Action; and
c) A dismissal is appropriate pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “Anti-SLAPP” motion).
[17] For the purpose of the motion, it is presumed the allegations in the claim are true, including that the WhatsApp Statements and the Poster Statements were defamatory.
[18] The Deputy Judge found that the requirements for defamation were properly pleaded. He concluded that all of the elements of defamation as set out in McLaughlin v. Maynard, 2017 ONSC 6820 were met in this case. No issue is taken with respect to this determination.
The Ruling
[19] The Deputy Judge released his Reasons on March 20, 2018.
[20] The Deputy Judge considered whether the Constitution required the alleged defamatory statements to be arbitrated. The Deputy Judge determined that Nanda was not required to proceed with arbitration prior to commencing the Action.
[21] The Deputy Judge then proceeded to deal with the prospect of success of the defamation claim. The Deputy Judge considered whether the failure to give notice under the Act prior to commencing the Action was fatal to Nanda’s claim. The Deputy Judge relied on Jansen-Ortho Inc. v. Amgen Canada Inc. (2005), 2005 19660 (ON CA), 199 O.A.C. 89 (Ont. C.A.) to support his determination that the Act applied to the WhatsApp Statements.
[22] As a result of this determination and that notice under the Act had not been given prior to the commencement of the Action, the Deputy Judge determined the Action had “no chance of succeeding”. Rather than dismiss the Action, the Deputy Judge stayed the Action.
[23] The Deputy Judge did not, in his reasons, explicitly (or, in my view, implicitly) deal with the defamation claims regarding the Poster Statements.
[24] Although before him and was the subject of submissions, the Deputy Judge did not, in his reasons, deal with the Anti-SLAPP motion.
THE ISSUES
[25] The following issues are raised:
a) Should the Deputy Judge have stayed the Action pending arbitration?
b) Did the Deputy Judge err in determining the WhatsApp Statements were a broadcast under the Libel and Slander Act?
c) Did the Deputy Judge err in failing to deal with the Poster Statements?
d) Did the Deputy Judge err in failing to deal with the Anti-SLAPP motion?
THE STANDARD OF REVIEW
[26] The standard of review was recently discussed by the Supreme Court in Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, [2017] 1 S.C.R. 688, at paras. 43, 45-47:
[43] The process for characterizing a question as one of three principal types — legal, factual, or mixed — is also well-established in the jurisprudence (Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35). In particular, it is not disputed that legal questions are questions “about what the correct legal test is” (Sattva, at para. 49, quoting Southam, at para. 35); factual questions are questions “about what actually took place between the parties” (Southam, at para. 35; Sattva, at para. 58); and mixed questions are questions about “whether the facts satisfy the legal tests” or, in other words, they involve “applying a legal standard to a set of facts” (Southam, at para. 35; Sattva, at para. 49, quoting Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235).
[45] Courts should, however, exercise caution in identifying extricable questions of law because mixed questions, by definition, involve aspects of law. The motivations for counsel to strategically frame a mixed question as a legal question — for example, to gain jurisdiction in appeals from arbitration awards or a favourable standard of review in appeals from civil litigation judgments — are transparent (Sattva, at para. 54; Southam, at para. 36). A narrow scope for extricable questions of law is consistent with finality in commercial arbitration and, more broadly, with deference to factual findings. Courts must be vigilant in distinguishing between a party alleging that a legal test may have been altered in the course of its application (an extricable question of law; Sattva, at para. 53), and a party alleging that a legal test, which was unaltered, should have, when applied, resulted in a different outcome (a mixed question).
[46] From this standpoint, the characterization of a question on review as a mixed question rather than as a legal question has vastly different consequences in appeals from arbitration awards and civil litigation judgments. The identification of a mixed question when appealing an arbitration award defeats a court’s appellate review jurisdiction (Arbitration Act, s. 31; Sattva, at para. 104). In contrast, the identification of a mixed question when appealing a civil litigation judgment merely raises the standard of review (Housen, at para. 36).
[47] Given these principles, a question of statutory interpretation is normally characterized as a legal question. In contrast, identifying a question, broadly, as one of contractual interpretation does not necessarily resolve the nature of the question at issue. Contractual interpretation involves factual, legal, and mixed questions. In consequence, characterizing the nature of the specific question before the court requires delicate consideration of the narrow issue actually in dispute. In general, though, as the Court recently explained in Sattva, contractual interpretation remains a mixed question, not a legal question, as it involves applying contractual law (principles of contract law) to contractual facts (the contract itself and its factual matrix) (para. 50).
(Emphasis added).
SUMMARY JUDGMENT MOTIONS IN SMALL CLAIMS COURT PROCEEDINGS
[27] The Rules of the Small Claims Court provide:
R. 12.02(1) The court may, on motion, strike out or amend all or part of any document that,
(a) discloses no reasonable cause of action or defence
R. 12.02(2) In connection with an order striking out or amending a document under subrule (1), the court may do one or more of the following:
- In the case of a claim, order that the action be stayed or dismissed
[28] The Court of Appeal has stated that a motion under Rule 12.02 is brought “in the spirit of the summary nature of the Small Claims Court proceedings and involves an analysis of whether a reasonable cause of action has been disclosed…”: see Van de Vrande v. Butkowsky, 2010 ONCA 230, 99 O.R. (3d) 648, at para. 19.
[29] In Tersigni v. Georgevitch, 2015 ONSC 1454, 39 B.L.R. (5th) 151 (Div. Ct.), at para. 44, the court interpreted Rule 12.02(1)(a): “[t]he question is really whether there is a cause of action which may or may not turn out to be a good cause of action, but which is at least reasonable or probable, one which is not clearly bad, but one where there is any question of law to be argued” (citations omitted).
[30] In other words, it must be “plain and obvious” that the pleadings contain no reasonable cause of action: see Loojune v. Bailey, 200 C.R.R. (2d) 257 (Ont. Div. Ct.), at paras. 9-12, citing Hunt v. T & N plc, 1990 90 (SCC), [1990] 2 S.C.R. 959.
[31] I recognize that the Deputy Judge described the test as “no chance of success”. Whether this is a different legal test would not and does not impact the result on this appeal.
ANALYSIS
ISSUE #1: Should the Deputy Judge have stayed the Action pending an arbitration?
Standard of Review on this Issue
[32] This issue turns on the interpretation of the Constitution.
[33] Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293, 135 O.R. (3d) 241, at para. 41 stated: “contractual interpretation is generally a question of mixed fact and law subject to appellate review on the deferential standard of palpable and overriding error…” The palpable and overriding error test is met if the trial judge misapprehended the evidence in that the findings are “clearly wrong”, “unreasonable” or “unsupported by the evidence”: see L. (H.) v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 55-56.
[34] Nanda and the Defendants are members of CUPW and, as such, are bound by the terms of the Constitution. Thompson, J., in Bimson v. Johnston et al., 1957 131 (ON SC), [1957] O.R. 519, at p. 530, aff’d 1958 345 (ON CA), [1958] O.W.N. 217 (Ont. C.A.):
... that a contract is made by a member when he joins the union, the terms and conditions of which are provided by the union's constitution and by-laws ... The contract is not a contract with the union or the association as such, which is devoid of the power to contract, but rather the contractual rights of a member are with all other members thereof.
(Emphasis added).
[35] I am satisfied that the standard of review of the Deputy Judge’s interpretation of the Constitution is the deferential standard of palpable and overriding error.
Additional Facts Relating to this Issue
[36] The Constitution provides:
Article 8.01: Where two or more members wish to resolve conflict between them, they will have access to alternative conflict resolution processes.
Article 8.02: Penalties may be imposed on a member or officer of the Union or Local if he/she committed any of the following offences:
Without limiting the general character of the aforesaid offences, the following action are among others regarded as offences:
(5): Having published or circulated, either verbally or otherwise, false reports or misrepresentation concerning any member or officer of the Union in respect of any matter connected with the affairs of the Union or Local.
Article 8.39: A member, may not undertake legal procedures against …. its members … without having previously exhausted the possibilities afforded him/her under the present Constitution.
The Position of the Parties
[37] The Defendants submit that the provisions of the Constitution requires that a member use the CUPW arbitration procedure (i.e. bring the matter before a Conflict Resolution Committee).
[38] The Deputy Judge interpreted the Constitution otherwise.
Analysis on this Issue
[39] A judge must determine which forum – the courts or arbitration - is the proper forum to determine the dispute. It is one or the other: see Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 SCR 929.
[40] Per Weber, at paras. 51-53, to decide which is the appropriate forum, the court must consider the dispute and the ambit of the agreement containing the arbitration provision:
[51] On this approach, the task of the judge or arbitrator determining the appropriate forum for the proceedings centres on whether the dispute or difference between the parties arises out of the collective agreement. Two elements must be considered: the dispute and the ambit of the collective agreement.
[52] In considering the dispute, the decision-maker must attempt to define its "essential character", to use the phrase of La Forest J.A. in Energy & Chemical Workers Union, Local 691 v. Irving Oil Ltd. (1983), 1983 3072 (NB CA), 148 D.L.R. (3d) 398 (N.B.C.A.). The fact that the parties are employer and employee may not be determinative. Similarly, the place of the conduct giving rise to the dispute may not be conclusive; matters arising from the collective agreement may occur off the workplace and conversely, not everything that happens on the workplace may arise from the collective agreement: Energy & Chemical Workers Union, supra, per La Forest J.A. Sometimes the time when the claim originated may be important, as in Wainwright v. Vancouver Shipyards Co. (1987), 1987 166 (BC CA), 38 D.L.R. (4th) 760 (B.C.C.A.), where it was held that the court had jurisdiction over contracts pre-dating the collective agreement. See also Johnston v. Dresser Industries Canada Ltd. (1990), 1990 6808 (ON CA), 75 O.R. (2d) 609 (C.A.). In the majority of cases the nature of the dispute will be clear; either it had to do with the collective agreement or it did not. Some cases, however, may be less than obvious. The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.
[53] Because the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize the classes of case that will fall within the exclusive jurisdiction of the arbitrator.
(Emphasis added).
[41] This approach was reaffirmed in Regina Police Assn. v. Regina (City) Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, at para. 25:
25 “To determine whether a dispute arises out of the collective agreement, we must therefore consider two elements: the nature of the dispute and the ambit of the collective agreement. In considering the nature of the dispute, the goal is to determine its essential character. This determination must proceed on the basis of the facts surrounding the dispute between the parties, and not on the basis of how the legal issues may be framed …. Simply, the decision-maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement. Upon determining the essential character of the dispute, the decision-maker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations. It is clear that the collective agreement need not provide for the subject matter of the dispute explicitly. If the essential character of the dispute arises either explicitly, or implicitly, from the interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide ….”
(Emphasis added).
[42] It is noteworthy that both Weber and Regina Police Association were cases where the dispute was between the employer and employee. The facts in this case are different. This is a dispute between members of the union.
[43] Per Richcraft Homes Ltd. v. Urbandale Corporation, 2016 ONCA 622, 352 O.A.C. 186, at para. 58, when interpreting provisions in a contract, the following principles apply to the review of the language at issue and the agreement generally:
(a) [the language of a contract is to be considered] as a whole, in a manner that gives meaning to all of its terms and avoids an interpretation that would render one or more of its terms ineffective;
(b) by determining the intention of the parties in accordance with the language they have used in the written document and based upon the "cardinal presumption" that they have intended what they have said;
(c) with regard to objective evidence of the factual matrix underlying the negotiation of the contract, but without reference to the subjective intention of the parties; and (to the extent there is any ambiguity in the contract),
(d) in a fashion that accords with sound commercial principles and good business sense, and that avoids a commercial absurdity. [Citations omitted.]
[44] The Deputy Judge found the language in Article 8.01 of the Constitution did not apply (i.e. was not mandatory).
[45] I am not persuaded that the Deputy Judge committed a reviewable error on this issue. There is an ample and reasonable basis for the Deputy Judge’s conclusion.
[46] While I refer to Article 8 as an "arbitration" provision, for the reasons set out below, I am not persuaded that, in fact, it contains a true and enforceable arbitration provision for the commencement, process to be applied and the adjudication of disputes between members.
[47] There are a number of reasons supporting the Deputy Judge’s determination that the Constitution’s “arbitration” provisions did not apply:
a) The Essential Focus of the Constitution’s Provisions are "Charges" or "Offences"
[48] The title of Article 8 is entitled "Conflict Resolution and Discipline".
[49] The main purpose of Article 8 of the Constitution is to establish penalties and offences relating to the conduct of its Locals and members. The Constitution establishes a mechanism, through the use of Conflict Resolution Committees, to avoid the disciplinary process. The "attempting alternative conflict resolution extend the time" for the disciplinary process (Article 8.01).
[50] The wording in the Constitution specifically focuses on "offences" and "penalties" between members and Locals. This scheme is, in my view, not intended to establish an exclusive or mandatory arbitral provision for resolving all disputes between members, including disputes which could involve tortuous conduct or contractual claims (i.e. not amounting to offences).
[51] This interpretation is readily apparent from a review of the overall plain wording of Article 8:
• “Conflict Committees ....are mandated to assist members involved in conflict situations, at the appropriate level, prior to charges being pursued in the disciplinary process”; and
• There is no decision or adjudication by the Conflict Resolution Committee provided for. The only adjudication is by the Discipline Committee which can impose penalties which do not include damages: see ss. 8.03 of the Constitution. There is no provision which permits the Conflict Resolution Committee to impose any "judgment" or monetary penalty on the parties before it. The only ultimate adjudication in Article 8 is a finding of "guilt": see Article 8.24.
[52] The only reasonable and proper interpretation of Article 8 is that the Conflict Resolution Committee is to work with the parties to avoid charges or offences being prosecuted under Article 8.12 and following. In other words, it is, at best, a mediation process to avoid disciplinary proceedings. The Conflict Resolution Committee is not and does not contemplate an adjudicative process as typically found in arbitration processes. Aside from the broad statement relied on by the Defendants, Article 8 provides not even the most basic provisions which one would expect to be included in an "arbitration provision".
b) The Wording is Permissive and Not Mandatory
[53] In any event, the wording in Article 8 does not expressly or implicitly state that disputes between members must use the Conflict Resolution Committee.
[54] The precise wording used in para. 8.01 is that: "where two or more members wish to resolve conflict between them they will have access to alternative conflict resolution processes” (emphasis added). These words are demonstrably permissive rather than mandatory. The members will have access to the conflict resolution process - the Conflict Resolution Committee. Had the drafters of the Constitution wanted to use mandatory language, it would have been easy to do so.
[55] Similar permissive language can be found in Article 8.01 (c): “[i]f a Local, or Locals, wishes to utilize the services of a member, or members, of this committee...” Otherwise, the matter proceeds directly to a disciplinary hearing.
c) The Defendants’ Interpretation makes No Commercial Sense
[56] The Defendants’ analogy to a landlord and tenant dispute is not helpful since there is legislation which specifically requires disputes between landlords and tenants to be determined by the Landlord and Tenant Board. No such legislation applied in this case.
[57] There is a connection with union activity in this case - the election. However, given my conclusion that the primary purpose of the Conflict Resolution Committee in Article 8 is to resolve offences or charges, this connection is not relevant, except perhaps to any charges that may be prosecuted under the Constitution.
[58] One can envisage numerous other activities, unrelated or tangentially related to union activities, which would be caught by the Defendants’ interpretation. These are such matters as motor vehicle accidents in the employer’s property, loans between members or members' loans from the Union, and so on.
[59] The Defendants’ primary reliance is on Article 8.39 which states that a member may not take “legal proceedings” without having previously exhausted the possibilities under the Constitution. For the reasons set out above, this requires a member to utilize the Conflict Resolution Committee to seek a resolution of the dispute before proceeding with laying charges against the other member, but does not bar a member from commencing civil legal proceedings.
Conclusion
[60] I am not persuaded that the Deputy Judge made a reversible error in finding that the Constitution does not require Nanda to proceed with “arbitration” rather than the Action.
[61] I am satisfied that the Deputy Judge properly dismissed the Defendants’ claim on this issue.
ISSUE #2: Did the Deputy Judge err in determining the WhatsApp statements were a "broadcast" under the Libel and Slander Act?
[62] As will be seen below, the Court of Appeal has previously determined that "online newspapers" are newspapers and, therefore, subject to compliance with the Act. Similarly, where radio broadcasts are also distributed over the internet, they remain a “broadcast” within the meaning of the Act. In these circumstances, the notice provisions of the Act must be complied with. The situation in this case is vastly different. There is no underlying newspaper article or publication. There is no underlying radio or television broadcast.
[63] WhatsApp enables the making of statements, over the internet, to a limited number of individuals in the WhatsApp group(s).
[64] Whether such statements are caught by the Act will have serious and extensive potential consequences, not just for application to this case, but also for statements made on other social media platforms as most statements through social media platforms are made through the internet to a limited number of persons (i.e. those using that social media, which may be hundreds, thousands or millions of people).
[65] If this is a broadcast, a further question needs to be considered - whether such statements were “broadcasted” from a “station” in Ontario, a further requirement of the Act.
The Applicable Statutory Provisions
[66] The Libel and Slander Act provides:
s. 1 “broadcasting” means the dissemination of writing, signs, signals, pictures and sounds of all kinds, intended to be received by the public either directly or through the medium of relay stations, by means of,
(a) any form of wireless radio electric communication utilizing Hertzian waves, including radiotelegraph and radiotelephone, or
(b) cables, wires, fibre-optic linkages or laser beams,
and “broadcast” has a corresponding meaning
"newspaper" means a paper containing public news, intelligence, or occurrences, or remarks or observations thereon, or containing only, or principally, advertisements, printed for distribution to the public and published periodically, or in parts or numbers, at least twelve times a year.
s 5(1) No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.
s.7 Subsection 5 (1) and section 6 apply only to newspapers printed and published in Ontario and to broadcasts from a station in Ontario.
The Position of the Parties
[67] Nanda submits that the Act does not apply to the WhatsApp and Poster Statements. In any event, Nanda submits the Deputy Judge failed to deal with the Poster Statements.
[68] The Defendants submit that the Act applies and Nanda's failure to provide notice in advance of commencing the Action is fatal.
The Standard of Review on this Issue
[69] In this case, the issue is whether the Act applies to the WhatsApp Statements. The more specific question is whether the WhatsApp Statements are “broadcasts” as defined in the Act.
[70] I am satisfied the standard of review is on the deferential standard of palpable and overriding error – that is, whether the Deputy Judge’s decision is “clearly wrong”, “unreasonable” or “unsupported by the evidence”: L. (H.) v. Canada (Attorney General), at paras. 55-56.
The Law on this Issue
[71] In St. Lewis v. Rancourt, 2015 ONCA 513, 337 O.A.C. 15, at para. 8, the Court of Appeal dealt with the application of the Act to an internet blog. The Court of Appeal stated the onus was on the party alleging that the Act applied:
8 The appellant submits that, pursuant to s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12 ("Act"), the respondent was required to serve a notice of libel within six weeks of acquiring knowledge of the impugned blog posts. The first notice of libel was served more than three months after the first impugned blog post was published. The limitation period, however, applies "only to newspapers printed and published in Ontario and to broadcasts from a station in Ontario": Act, s. 7. The burden of proof was with the appellant to establish that the blog posts fell within this definition under the Act. He called no evidence to establish that they did. The respondent was prepared to call expert evidence to address this issue, but, as the appellant did not lead any evidence, the respondent did not do so.
(Emphasis added).
[72] In St. Lewis, the Court of Appeal ordered the matter to proceed to trial.
[73] Whether the Act applied to "tweets" from a Twitter account was considered in Levant v. Day, 2017 ONSC 5956, 17 C.P.C. (8th) 183. Per paras. 43-46, the court was not prepared to extend "broadcast" to include social media given the lack of an evidentiary background in that case:
[43] The defendant submits that the action fails on the basis of the plaintiff’s failure to provide notice pursuant to section 5(1) of the Libel and Slander Act (“the Act”). Section 5.1 of the Act provides that no action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to an adult at the chief office of the defendant. I note that no motion was brought at the outset of this action as regards the failure to give notice, which could have been done.
[44] As regards postings on Twitter, which are the subject of a libel action, there is no case law directly on point as regards whether such postings are subject to the Act. It has been recognized that an action in libel regarding a newspaper article, republished on the Internet, is subject to the Libel and Slander Act: John v Ballingall et al 2016 ONSC 2245, and see: Shtaif v Toronto Life Publishing Co. Ltd, (2013) ONCA 405 (Ont. CA). The case law relied upon by the defendant refers to online editions of traditional print newspapers and media broadcasts. It is the position of the responding party plaintiff that re-postings of traditional media broadcasts are distinguishable from publications and expressions made solely on social media sites such as Twitter.
[45] The legislative provision in the Act refers to libel in a newspaper or in a broadcast. There is no case law that interprets this provision to include social media. The defendant asks this Court to extend the Libel and Slander Act which uses these words and was originally intended to apply the media of the times to a new telecommunication technology. The defendant seeks to have this Court extend “broadcast” to social media such as Twitter.
[46] However, the parties have not provided this Court with any evidence regarding the nature, characteristics and functioning of the Twitter technology, nor have the parties provided any social policy reasons for interpreting or extending the meaning or definition of broadcast to include Twitter. The Court is not prepared to take judicial notice of these things. This Court is not prepared to make such a determination absent such evidence.
(Emphasis added).
[74] The court in Levant ordered the matter proceed to trial.
[75] In Bahlieda v. Santa 2003 2883 (ON CA), [2003], 68 OR (3d) 115 (Ont. C.A.), the Court of Appeal was faced with the same circumstances before the Deputy Judge. The motions judge had found that material placed on a website, and made available through the Internet, was a "broadcast" within the meaning of the Act. No notice of claim and no statement of claim had been delivered within the periods required by ss. 5(1) and 6 of the Act. The Court of Appeal, noting the importance of the issue, set aside the motion judge’s order and determined that the matter should proceed to trial.
[76] Similar conclusions were reached in Shtaif v. Toronto Life Publishing Co. Ltd., 2013 ONCA 405, 306 O.A.C. 155 and in Warman v. Grosvenor (2008), 2008 57728 (ON SC), 92 O.R. (3d) 663 (Ont. S.C.).
[77] These authorities make it clear that there must be clear, ample evidence for the court to make the determination whether the distributed statement(s) at issue in the particular case constituted a “broadcast” under the Act. These courts determined the actions should not be dismissed without such evidence and ordered the actions proceed to trial.
[78] A recent pronouncement on the application of the Act to online statements is in John v. Ballingall, et al., 2017 ONCA 579, 136 O.R. (3d) 305, leave to appeal refused, 2018 43780 (S.C.C.). The statements in the John case involved an online newspaper and as such, it is distinguishable from the situation at hand. However, some of the comments made by the Ontario Court of Appeal at paras. 24 and 30 are instructive:
[24] The courts have interpreted legislation to apply to advances in technology that did not exist when the provision was enacted. For example, courts have found the Telegraph Act[1] applies to telephones, and a fibre optic system is a “cable” within the meaning of the Income Tax Act[2], despite the fact that neither of these technologies existed at the time the relevant provisions were enacted: see Attorney General v. Edison Telephone Co. of London Ltd. (1880), 6 QBD 244; and British Columbia Telephone Co. v Canada (1992), 139 N.R. 211 (F.C.A.).
[30] I also do not accept the appellant’s submission that Shtaif called into question the ratio of Weiss. On the contrary, Laskin J.A. affirmed the need for “judicial interpretation” to deal with new technology. At para. 20, he referred to the LSA and commented:
The Act was drafted to address alleged defamation in traditional print media and in radio and television broadcasting. It did not contemplate this era of emerging technology, especially the widespread use of the internet. The application of the Act to internet publications will have to come about by legislative amendment or through judicial interpretation of statutory language drafted in a far earlier era.
[Emphasis in original.]
[79] The Defendants’ reliance on Weiss v. Sawyer (2002), 2002 45064 (ON CA), 61 O.R. (3d) 526 is misplaced. Weiss dealt with an online newspaper. As stated above, the authorities establish that online newspapers continue to be a "newspaper" for the purpose of the Act.
Analysis on this Issue
[80] The Deputy Judge relied on Janssen-Ortho Inc. v. Amgen Canada Inc., 2005 19660 (ON CA), 199 O.A.C. 89 (Ont. C.A.) to state that a "broadcast" includes a “broadcast over the internet”. The Deputy Judge did not go on to consider whether the broadcast was “from a station in Ontario.”
[81] The Deputy Judge’s reliance on Janssen-Ortho was misplaced. At issue in Janssen-Ortho were two radio broadcasts simultaneously broadcasted over the internet. The Court of Appeal decided that, like newspapers, where there is a radio broadcast, a radio broadcast over the internet is also caught by the Act.
[82] Contrary to the broad statement made by the Deputy Judge attributed to the court in Janssen-Ortho, the court in Janssen-Ortho held that an email is not a “broadcast” for the purposes of the Act at para. 6: “… certain allegedly defamatory e-mails sent by Karisma as neither a broadcast or a newspaper and the s. 5(1) notice requirement does not apply to them…”
[83] I have reviewed the motion material before the Deputy Judge. There is no evidence which would permit a proper factual determination of whether the WhatsApp Statements were or were not a “broadcast” as defined in the Act or whether the WhatsApp Statements were made “from a station in Ontario”. Therefore, there was no factual record for the Deputy Judge to have concluded as he did – that the WhatsApp Statements were a “broadcast” under the Act.
[84] While I agree that it may be possible to engage in judicial interpretation of “broadcast”, particularly in light of the expanding use of social media and internet applications/services, in my view, the application of judicial interpretation to the facts of this case must be based on a proper and complete factual record.
[85] I also note that the Deputy Judge did not engage in an analysis of whether the “broadcast” was “from a station in Ontario.” Clearly, the Act would have no application if the “broadcast” was not “from a station in Ontario”.
[86] I am compelled to come to the conclusion that the Deputy Judge committed a reviewable error. The statement of Laskin J.A. in Shtaif at para. 24 applies to this case:
[24] In this case, I think the sensible course is that adopted in Bahlieda: to leave to trial the question whether the internet version of the article is a newspaper published in Ontario or a broadcast from a station in Ontario. I am not satisfied that the evidentiary record before us is sufficient to decide these questions, which have broad implications for the law of defamation.
Conclusion on this Issue
[87] The Deputy Judge erred in finding that the WhatsApp Statements were subject to compliance with the Act on the evidentiary record before him. It follows that it was not open to the Deputy Judge, on the record before him, to conclude that the Action did not disclose a reasonable cause of action and to proceed to stay the Action.
[88] The Order is hereby set aside.
ISSUE #3: Did the Deputy Judge err in failing to deal with the Poster statements?
[89] The Deputy Judge did not deal with the Poster Statements. Yet, his order stays the entire Action.
[90] Even if the Deputy Judge was correct that the WhatsApp Statements were subject to sections 5(1) and 6 of the Act, Nanda might nevertheless be entitled to proceed with his claim regarding the Poster Statements. The Deputy Judge did not engage in an analysis to this effect. He failed to provide any reasons or explanation as to why that portion of the Action be stayed. This is a reviewable error.
[91] On the record before the Deputy Judge, there appears to be no dispute that the Poster Statements (at least the hard posted copies) are neither newspapers nor broadcasts within the meaning of the Act. As such, the Defendants failed to meet the onus of demonstrating that the Act applied to the Poster Statements.
[92] If the Act does not apply to the Poster Statements, then the notice provisions also do not apply.
[93] Whether the Poster Statements distributed by email are subject to the Act is an issue that should, for the reasons set out above regarding the WhatsApp Statements, also be allowed to proceed to trial for a determination based on a complete evidentiary record.
[94] The Deputy Judge erred in staying the claim as it relates to the Poster Statements.
ISSUE #4: Did the Deputy Judge err in not dealing with the Anti-SLAPP motion?
[95] The Anti-SLAPP motion was fully argued before the Deputy Judge. Yet, in the Deputy Judge’s reasons, there is no mention of this motion, no analysis of this motion and no decision on this motion.
[96] Counsel agree that, upon release of this court’s decision, if necessary, they would provide written submissions on the Anti-SLAPP portion of the appeal.
[97] As I have decided that the appeal should be allowed, the Defendants, if they wish to pursue the Anti-SLAPP motion in advance of trial, may make written submissions within 30 days of the release of these reasons. Nanda shall have 30 days thereafter to provide responding written submissions. The Defendants will then have 10 days to provide proper reply written submissions.
[98] If the Defendants choose not to pursue the Anti-SLAPP motion, they shall advise the court immediately upon making this decision.
CONCLUSION
[99] The appeal is allowed. The Order is hereby set aside subject to any future determination by this court on the Anti-SLAPP motion, if it proceeds.
[100] The Defendants may, if they wish, pursue their Anti-SLAPP motion in the manner described above.
[101] Costs are reserved until after the Anti-SLAPP motion is decided or abandoned.
Ricchetti J.
Date: January 7, 2019
CITATION: Nanda v. McEwan, 2019 ONSC 125
COURT FILE NO.: DC-18-0035
DATE: 2019 01 07
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Irwin Nanda, Plaintiff (Appellant)
- and -
Derrick McEwan, Avelino Carvalho, Angela Mason and Satish Sharma, Defendants (Respondents)
COUNSEL: I. Iwasykiw for the Plaintiff/Appellant B. Noorduyn for the Defendants/Respondents
REASONS FOR JUDGMENT
Ricchetti J.
Released: January 7, 2019