CITATION: Pringle v. Channel 11 Limited Partnership, 2015 ONSC 2699
COURT FILE NO.: CV-12-00444088-0000
DATE: 20150513
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
JUSTIN PRINGLE
Plaintiff
– and –
CHANNEL 11 LIMITED PARTNERSHIP
Defendant
Davin Charney
for the Plaintiff
Brendan Hughes
for the Defendant (Moving Party)
HEARD: April 9, 2015
CHAPNIK J.:
[1] This motion involves a unique set of circumstances, an erroneous news broadcast about a “sexual” assault, and the ability of the plaintiff to pursue an action for defamation while in solitary confinement.
[2] The defendant, Channel 11 Limited Partnership (CHCH) seeks summary judgment pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 dismissing the plaintiff’s action against it. In this action, the plaintiff Justin Pringle (Pringle) claims damages for defamation and negligence arising out of the defendant’s news broadcast on November 11, 2011.
The facts
[3] On or about November 11, 2011, CHCH learned from a “Media Release” issued by the Niagara Regional Police Services that Pringle had been arrested and charged in connection with an assault and aggravated assault.
[4] That evening, the defendant broadcasted a report on its CHCH news program (the Broadcast), as follows:
Police say a man was sexually assaulted in Welland today. They say they were called to an address on Lincoln Street and while the victim required hospitalization he is listed in good condition. They have made an arrest and 32 year old Justin Pringle is charged with aggravated assault and assault. A bail hearing is scheduled for tomorrow.
[5] It is not disputed that the Broadcast aired on the 6 pm and 11 pm news and consisted only of the news anchor reading out the above words. It is also common ground that the Broadcast erroneously referred to a “sexual” assault.
[6] After being arrested and charged with aggravated assault, Pringle was taken into custody at the Niagara Detention Centre (NDC) in Thorold, Ontario. At his arrival there, when placed in a holding cell, he was advised that, as a result of the Broadcast, which had been played on television to the inmates at NDC, there were “300 people waiting to kill [him].”
[7] He was also permitted to meet with his brother who was incarcerated at NDC at the time, and his brother confirmed that he had seen the Broadcast and many inmates were now threatening Pringle’s safety. After a few hours, Pringle was taken into solitary confinement where he remained for several months.
[8] On or about January 11, 2012 Pringle retained counsel for the civil action and a notice of action was filed on the plaintiff’s behalf in the Superior Court on January 16, 2012, and served on the defendants on January 19 or 20, 2012.
[9] On January 27, 2012, CHCH broadcast a retraction and apology stating:
And now a correction to a story we broadcast last November 11th.
We reported that Niagara Regional Police said a Welland man had been sexually assaulted at an address on Lincoln Street. Police did allege the victim had been assaulted but not sexually. That part of our report was incorrect. They charged Justin Pringle with aggravated assault and assault only. We apologize for the error.
[10] The plaintiff served his statement of claim on February 10, 2012, and the defendant filed a statement of defence on March 21, 2012.
the law
[11] Section 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L-12 (the Act) states:
- (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.
[12] It is well settled law that failure to comply with s. 5(1) of the Act constitutes an absolute bar to an action for libel. As noted in Misir v. Toronto Star Newspapers Ltd. (1997) 1997 717 (ON CA), 105 O.A.C. 270 (C.A.) at para. 13:
Section 5(1) is a condition precedent to the bringing of an action for libel. Lack of notice bars the action. The court has no power to relieve against or excuse non-compliance with the notice requirement.
See also, Watson v. Southam Inc. (c.o.b. Hamilton Spectator) (2000), 2000 5758 (ON CA), 189 D.L.R. (4th) 695 (Ont. C.A.) at paras. 46-54; Astley v. Verdun, [2008] O.J. No. 1604 at para. 9, aff’d on appeal 2008 ONCA 728, [2008] O.J. No. 4166; TPG Technology Consulting Ltd. v. Canada (Minister of Industry), 2012 ONCA 87, 109 O.R. (3d) 97 at paras. 32-33.
[13] The court in Siddiqui v. Canadian Broadcasting Corp. (2000), 2000 16920 (ON CA), 50 O.R. (3d) 607 (C.A.) at para. 16 discussed the purpose for the strict requirement imposed by s. 5(1) of the Act, as follows:
There is no jurisprudential doubt that an action for libel cannot be brought unless the defendants have first been properly served with written notice specifying the words and matter complained. The reason such notice must precede the commencement of the action is to give a defendant an opportunity to correct, retract, justify, apologize for, or otherwise consider what mitigating steps are appropriate.
[14] The form of libel notice is not important. There is no rule that the notice has to be set out in a particular way or adhere to any structure. All that is required is that a sufficiently particularized notice is given. As noted in Gutowski v. Clayton 2014 ONCA 921, 379 D.L.R. (4th) 177 at para. 36:
No particular form of notice is required by s. 5(1) of the Libel and Slander Act. Its purpose is to enable defendants to identify the defamatory remarks with sufficient clarity to enable them to limit their damage by way of retraction or apology: Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), 2005 19660 (ON CA), 256 D.L.R. (4th) 407 (Ont. C.A.), at para. 38. The question is whether the notice identifies the plaintiff and fairly brings home to the publisher the matter complained of (citations omitted).
the issues
[15] The parties have submitted two issues for determination by this court:
Was the notice of action a proper notice under s. 5(1) of the Libel and Slander Act?
If so, what is the effect of the fact the notice was served on the defendant outside the six week period required by the Act?
issue no. 1 – the form of notice
[16] The defendant argues the notice of action in this case did not serve as proper notice under the Act. In doing so, it relies upon the provisions of rule 14.03 of the Rules of Civil Procedure which reads:
14.03 (1) The originating process for the commencement of an action is a statement of claim except as provided by,
(a) subrule (2) (notice of action).
(2) Where there is insufficient time to prepare a statement of claim, an action may be commenced by the issuing of a notice of action (Form 14C) that contains a short statement of the nature of the claim.
(3) Where a notice of action is used, the plaintiff shall file a statement of claim within thirty days after the notice of action is issued, and no statement of claim shall be filed thereafter except with the written consent of the defendant or with leave of the court obtained on notice to the defendant.
(4) The notice of action shall not be served separately from the statement of claim.
[17] The defendant interprets r.14.03(4) as meaning that the notice serves as the commencement of a civil action for damages and since the notice under the Act is a condition precedent to the bringing of an action for libel, the notice of action in this case cannot serve as proper notice under the Act.
[18] It appears to me that these provisions are meant to be read as a whole, and not individually. A reasonable interpretation would be that a notice of action does not stand, by itself, as originating a civil action until and unless a statement of claim is served within the time frame set out in rule 14.03(3). The defendant’s reliance solely on subsection (4) of the rule is not well-grounded. The notice of action, by itself, is not what is commonly viewed as “an originating process” without the addition of a statement of claim.
[19] The defendant also argues that since the policy underlying the notice provisions in the Act contemplate providing the wrongdoer with every opportunity to apologize and perhaps, avoid litigation, any deviation from this would prejudice the defendant. Clearly, the notice must specify the “words and matter” complained of, so that the defendant can take any mitigating steps it deems necessary in the circumstances.
[20] In the situation here, the form of notice identified the plaintiff and gave the defendant all the information it would require to permit it to take corrective action, which it did. The notice of action was served on January 20, 2012 – the apology was broadcast on January 27, 2012, and the statement of claim was not issued until on or about February 10, 2012. The intervening period gave the defendant an opportunity to mitigate any damage to the plaintiff.
[21] The defendant contends that, although it may have been Pringle’s intention to have the notice of action serve as the notice required by the Act, the notice does not meet the notice requirements imposed by the Act. The better question is how the defendant viewed the notice; and clearly the defendant understood the service of the notice of action to constitute proper notice under s. 5(1) of the Act, and it acted upon it accordingly.
[22] Finally, and most importantly, the notice is not required to either adhere to any structure or be set out in a particular manner, only that it be sufficiently particularized. In this case, the form of the notice enabled the defendant to identify the alleged defamatory remarks with sufficient clarity to enable it to limit any damage by way of retraction or apology.
[23] The answer to question number 1, therefore, is: Yes, the form of the notice in the particular circumstances of this case constituted proper notice under s. 5(1) of the Act.
issue no. 2 – the LATEness of the notice
[24] It is undisputed that the Broadcast came to Pringle’s attention on November 11 or 12, 2011. Accordingly, pursuant to the Act, Pringle had six weeks or until December 23 or 24, 2011 to deliver the libel notice which, as noted, was issued on January 16 and served on the defendant on January 19 or 20, 2012. This was about three weeks after the date stipulated in the Act.
[25] Pringle takes the position that the erroneous broadcast caused him to be placed in solitary confinement and isolated from family and friends. CHCH denies the cause and effect of this statement, stating (at para. 20 of its factum):
CHCH … takes the position that Pringle was perfectly capable, and was provided with the appropriate means, to deliver a libel notice as soon as he saw fit. Pringle’s incarceration did not prevent him from delivering notice; rather, he had no knowledge that such was required and various lawyers failed to advise him of the requirement to deliver a libel notice.
[26] I have read the comprehensive transcript of the cross-examination of Pringle held at the Warkworth Institution on February 25, 2015, as well as the excerpts of the transcript contained in CHCH’s factum. I do not agree with the defendant’s interpretation of Pringle’s actual situation while in prison and the hurdles he had to overcome to retain counsel and assert his claim.
[27] In my view, Pringle made all reasonable efforts to retain counsel and pursue this matter. His efforts included talking to his criminal defence lawyers about his interest in pursuing a civil action, calling Legal Aid lawyers and the lawyer referral services and following up with phone numbers of lawyers provided to him while in prison.
[28] The fact that he had access to stamps and letter writing is entirely irrelevant. During the six weeks following the Broadcast, Pringle was in solitary confinement. I agree with his counsel that “it cannot reasonably be argued that Mr. Pringle enjoyed the same opportunity and ability to retain counsel and give notice as would an unincarcerated person.” A broad reading of the transcript demonstrates that Pringle did indeed have much more restricted access to telephone services for example, than would a person who was not in prison.
[29] As stated succinctly in Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549 at para. 34,
whatever interest a defendant may have in the universal application of a limitation period must be balanced against the concerns of fairness to the plaintiff …
[30] Clearly the length of the delay was not unreasonable in this case and there is no allegation that the defendant suffered prejudice by the notice being served on it three weeks late. In my view, the principle of proportionality demands that, as a minimum, CHCH be obligated to demonstrate actual prejudice; and it has not.
[31] The plaintiff was diligent in his efforts to obtain legal counsel and to assert his claim for damages from the time he learned about the “error”.
[32] In the circumstances of this case, the delay in delivering notice to the defendant is reasonable and appropriate within the meaning and for the purposes of s. 5(1) of the Act.
conclusion
[33] In the rather unique circumstances of this case, the plaintiff’s difficult conditions in prison, (his isolation and limited access) appear to relate directly to the defendant’s alleged defamatory broadcast. These conditions hindered the plaintiff in his quest to find counsel to represent him in a defamation case, though he was consistently diligent in his efforts to do so. The notice of action was in appropriate form to serve the purposes underlying s. 5 of the Act. The delay in issuing the notice as required by s. 5(1) of the Act, was not unreasonable in the circumstances.
[34] It is said to be trite law that there can be no right without a remedy. In my view, justice requires that the plaintiff have a right to pursue his claim. There are genuine issues that require a trial for their resolution such as the details underlying the error; and an assessment of the plaintiff’s damages. Accordingly, the defendant’s motion for summary judgment is dismissed. If the plaintiff, through counsel, still wishes to amend the statement of claim, and leave is required, then leave to do so is granted.
[35] The plaintiff is entitled to his costs on a partial indemnity basis. He claims costs on that basis in the amount of $9,377.45. The defendant has submitted a claim for costs in the approximate sum of $32,000. Considering the criteria in rule 57.01, the relevant jurisprudence, and the reasonable expectation of the parties, the amount claimed by the plaintiff would, in my view, be a fair and just result, and I so order.
[36] In summary, the defendant’s motion for summary judgment is dismissed. Costs are awarded in favour of the plaintiff to be paid by the defendant in the sum of $9,377.45, including disbursements and HST.
CHAPNIK J.
RELEASED: May 13, 2015
CITATION: Pringle v. Channel 11 Limited Partnership, 2015 ONSC 2699
COURT FILE NO.: CV-12-00444088-0000
DATE: 20150513
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
JUSTIN PRINGLE
Plaintiff
– and –
CHANNEL 11 LIMITED PARTNERSHIP
Defendant
REASONS FOR JUDGMENT
CHAPNIK J.
RELEASED: May 13, 2015