ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-62129
DATE: 2015/07/15
BETWEEN:
Canadian Union of Postal Workers
Plaintiff
(Responding Party)
– and –
Quebecor Media Inc., Sun Media Corporation, TVA Group Inc., Jerry Agar
– and –
Avi Benlolo
Defendants
(Moving Parties)
Karin M. Pagé, for the Plaintiff
Tycho Manson, for the Defendants
Stephen Cavanagh, for the Defendant
HEARD: June 24, 2015
REASONS FOR JUDGMENT ON A MOTION PURSUANT TO RULE 21, [RULES OF CIVIL PROCEDURE](https://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.html)
Pelletier J.
Introduction
[1] The Defendants to this action bring a motion under Rule 21.01(1)(a) of the Rules of Civil Procedure for the determination of 2 questions of law: firstly, whether the Plaintiff complied with the notice requirements under section 5 of the Libel and Slander Act, R.S.O.1990 c. L.12 prior to bringing the action, and secondly, whether, as an unincorporated association, a trade union has the legal capacity to sue in defamation. The Defendant Avi Benlolo raises an additional issue relating to whether he is in any way connected to the second of the two purported defamatory statements.
Background
[2] The action arises as a result of two publications, one broadcast and the other printed. On July 24, 2014, Sun News, operated by T.V.A. Group Inc. and its parent company Quebecor Media Inc., broadcast a segment hosted by the Defendant Jerry Agar during which discussions took place with a guest, the Defendant Avi Benlolo, concerning a pro-Palestinian rally on Parliament Hill on July 23, 2014. The Plaintiff alleges that defamatory statements were made, essentially creating a link between CUPW and Hamas supporters, said to have attended the demonstration.
[3] The actual broadcast has been reproduced and entered as an exhibit for the purposes of the present motion. For ease of reference only, a transcript prepared by the Plaintiff, compared by the Court to the actual broadcast, provides a sufficiently accurate record of the interview and the banners attached to the segment by the broadcaster. The transcript of the segment is attached at Appendix A.
[4] On August 19, 2014, the Plaintiff provided the notice to the Defendants, attached at Appendix B.
[5] The apology and retraction referred to in the Notice of Libel reads as follows:
Draft Retraction and Apology
Re July 24, 2014 Broadcast, “Hamas, CUPW flags fly on Parliament Hill”
In a broadcast published late last month on the Sun News Network’s website, www.sunnewsnetwork.com, the Sun News Network questioned CUPW’s participation at a demonstration held in Ottawa calling for an end to the violence against Palestinians in Gaza.
We regret and withdraw any suggestion that CUPW, or its members, are terrorists sympathizers or supporters of Hamas, or any other terrorists organization.
Sun News Network sincerely regrets and apologizes for any misunderstanding or harm that this article may have caused to CUPW or its members.
[6] On July 28, 2014, the Toronto Sun, a newspaper operated by Sun Media Corp. and its parent company Quebecor Media Inc. published an article in print and online which forms the second basis of the defamation claim by the Plaintiff. The article is attached at Appendix C.
[7] A notice under the Libel and Slander Act concerning the July 28, 2014 article was provided to the Defendants on August 7, 2014. It is attached at Appendix D.
[8] The proposed retraction and apology attached to the notice, reads:
Draft Retraction and Apology
Re July 28, 2014 Article, “Hamas goes postal? Only in Canada”
In an article published late last month in the Toronto Sun and on-line at www.torontosun.com, the Toronto Sun questioned DUPW’s participation at a demonstration held in Ottawa calling for an end the violence against Palestinians in Gaza.
We regret and withdraw any suggestion that CUPW, or its members, are terrorist sympathizers or supporters of Hamas.
The Toronto Sun sincerely regrets and apologizes for any misunderstanding or harm that this article may have caused to CUPW or its members.
The First Issue
[9] The first basis upon which the present motion is brought relates to the sufficiency of the notice provided to the Defendants.
[10] Notice under the Libel and Slander Act is governed by s. 5 which provides:
Notice of action
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. R.S.O. 1990, c. L.12, s. 5(1).
[11] The present debate is whether the notices were sufficient in “specifying the matter complained of.”
[12] Rule 21.01(1)(a) allows for a determination before trial of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action.
[13] It is not disputed that this first issue, the sufficiency of the notice under the Libel and Slander Act is a question of law and properly before the Court on a Rule 21 motion.
The Law on the Issue of Notice Under the Libel and Slander Act.
[14] Consideration of the sufficiency of notice under the Libel and Slander Act necessarily begins with the principles set out in Grossman v. CFTO.TV Ltd. 1982 1768 (ON CA), [1982] O.J. No. 3538 (Ont. C.A.).
[15] Concerning the effect and purpose of the notice requirement under the Act, the Court observed at paragraphs 12 to 14 as follows:
Effect of the Legislation
12 The section stands as a condition precedent to the commencement of an action for libel. It constitutes an absolute bar. The purpose of the notice is to call the attention of the publishers to the alleged libelous matter. When it is received an investigation can be made, and if the publisher deems it appropriate, a correction, retraction or apology can be published. In this way the publisher can avoid or reduce the damages payable for the publication of a libelous statement.
13 The plaintiff, as well, may benefit from the notice. A timely correction, retraction or apology can often constitute a better remedy than damages. This principle has been recognized in those jurisdictions in the United States which require the service of notice. See, for example, Webb v. Call Publishing Co., 173 Wis. 45, 52, 180 N.W. 263, 265 and Huck v. Jos. Schlitz Brewing Company, 302 N.W. 2d 68 (Wis. App.).
14 The notice provision, therefore, may benefit both parties. It does, however, stand as a bar to the action and forever prevents a determination of the issue on the merits. There is no form of notice set out in the Act.
[16] Grossman explains that prior to the 1958 amendments to the Act, no action for libel could be brought unless the Plaintiff gave written notice to the Defendant “specifying the statement complained of”. The 1958 amendment required notice “specifying the matter complained of”. The Court in Grossman observed that the change in the notice requirement reflected the advent of electronic media and the generally ephemeral nature of broadcast news compared to print media. At paragraphs 18 and 19 the Court notes:
18 The newspaper had been an integral part of society for many generations prior to the amendment. The allegedly libelous article in a newspaper could be kept, reviewed, and analyzed over an extended period. The burden thrust upon a prospective complainant by the notice requirement was thus neither unduly onerous nor unfair.
19 On the other hand, television or radio broadcasts can be ephemeral and fleeting. Ephemeral though it may be, the impact of a broadcast may be far greater than that of a newspaper article. The audio-visual effect can be devastating. The words used in the broadcast may be of secondary importance to a number of other features. The intonation, tone of voice, and inflection can make innocent words defamatory. A voice combined with background effects, scenery, music or images can still more readily lead to an insidious result where, although innocent words are used, a person is held up to the most flagrant ridicule and contempt.
[17] Explaining the significance of the 1958 amendments, as they relate to broadcasts, the Court explains at paragraphs 20 to 24:
20 How then is a prospective plaintiff to describe the broadcast he complains about in his notice? It may well be that the words themselves form a small portion of the libelous aspect of a broadcast for they may only be libelous in the context of the other sounds and images of the programme. Neither is it possible for the prospective plaintiff to review, study and analyze at his leisure the television programme. He will probably have only a transcript when he prepares the notice.
21 The word “statement” was plainly not broad enough to cover a broadcast and the draftsmen, in my opinion, deliberately chose a broader word when s.5(1) was amended to apply to broadcasts. I am of the view that the word “matter” in s.5(1) can and should be given a much broader interpretation that the word “statement” in the former section.
22 Often it will only be possible to refer to the matter complained of in a broadcast in a very wide and general manner. Not only do the realities of the situation suggest a broader interpretation, so too do the dictionary definitions of the words “matter” and “statement”. The Shorter Oxford Dictionary includes in its definitions of “statement” as:
- The action or an act of stating;
- Something that is stated; an allegation, delegation;
- A written or oral communication setting forth facts, arguments, demands or the like.
23 The same dictionary, among its definitions for “matter”, includes the following broad concepts:
- Material for expression, something to say or write;
- A theme, topic, subject of exposition;
- The substance of a book, speech or the like.
24 The notice complaining of a broadcast must necessarily be broader and less precise than that complaining of written words.
[18] Grossman establishes that the notice requirement is mandatory. Failure to provide sufficient notice is an absolute bar to proceeding. This necessarily requires a notice which sufficiently identifies the matter complained of. Proper notice is beneficial to both the plaintiff and the publisher, in that properly identified, the statements alleged to be defamatory in nature can be examined, considered, corrected or retracted as the case calls for. The benefit to the plaintiff is the prompt restoration of their reputation, considered in Grossman, as possibly more valuable than an eventual award in damages. The Act does not require or prescribe a particular form of notice. To the extent that Grossman, decided in 1982, stands for the proposition that “it will always be more difficult to frame a notice complaining of a matter contained in a television broadcast than a statement contained in a newspaper, magazine article, or book.”, this principle must be examined in the context of current broadcast practices and technology. Indeed, the Statement of Claim asserts that both the broadcast of July 24, 2014 and the article of July 28, 2014 were published online and were still accessible to the public at large as of the date of the issuance of the of the amended Statement of Claim, September 29, 2014.
[19] In Grossman, complete transcripts of three broadcasts suggesting corruption in the issuance of taxi licences in Toronto were provided together with a notice that the “statements complained of are attached hereto”.
[20] The Court concluded that the notice was sufficient stating, at paragraph 38:
38 Here, in light of the brevity of the broadcasts, the limited number of allegations made with regard to Mr. Grossman, the defendants could not possibly have been prejudiced or confused by the notice which they received in this case. They were made aware of the nature of the plaintiff’s complaint for their attention was drawn to the three short segments of the news programmes broadcast on three successive days. There was no necessity in this case to specify in any greater detail the matters complained of. The notice in my opinion sufficiently specified the matter complained of as required by s.5(1) and was adequate to permit the defendants to make a “full and fair retraction”. The plaintiff is accordingly entitled to have the action tried on its merits.
(Decision continues exactly as in the original judgment, including all paragraphs through [70], concluding with:)
PELLETIER, J.
Released: July 15, 2015
COURT FILE NO.: 14-62129
DATE: 2015/07/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Canadian Union of Postal Workers
Plaintiff
(Responding Party)
– and –
Quebecor Media Inc., Sun Media Corporation, TVA Group Inc., Jerry Agar and Avi Benlolo
Defendants
(Moving Parties)
REASONS FOR Decison
PELLETIER, J.
Released: July 15, 2015