COURT FILE NO.: 06-CV-310261PD2

DATE: 20150730

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

RANJIT KUMAR CHANDRA

Plaintiff

– and –

CANADIAN BROADCASTING CORPORATION, CHRIS O’NEILL-YATES, CATHERINE MCISAACS, LYNN BURGESS, JACK STRAWBRIDGE and MEMORIAL UNIVERSITY OF NEWFOUNDLAND

Defendants

Richard Bennett, Joseph Figliomeni, John Lavers and Sarah Learmonth for the Plaintiff

Christine Lonsdale and Gillian Kerr, for the Defendants Canadian Broadcasting Corporation, Chris O’Neill-Yates, Catherine McIsaacs and Lynn Burgess (the “CBC Defendants”)

HEARD: 22 April 2015

REASONS FOR DECISION

(Motion for determination of a question of law before trial pursuant to Rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and for directions in relation to the order of issues and evidence at trial)

mew j.

[1] These reasons address a motion brought by the plaintiff shortly before the scheduled commencement of the trial of an action in which the plaintiff seeks damages for libel and invasion of privacy allegedly arising from a news segment entitled “The Secret Life of Dr. Chandra” which was broadcast on CBC television on 30 and 31 January and 1 February 2006 (the “Documentary”).

[2] The motion was heard on 22 April 2015 concurrently with, inter alia, a motion brought by the CBC defendants to strike out a jury notice. On 23 April, I notified the parties of my decisions on these motions and said that reasons would follow. In respect of the motion to strike the jury notice, I dismissed the motion and subsequently delivered reasons on 12 May 2015 (2015 ONSC 2980, [2015] O.J. No. 2392).

[3] The relief sought in the motion which these reasons address was as follows:

a. A determination, pursuant to Rule 21.01(1)(a) of the question of law as to whether or not the Documentary is prima facie defamatory. That is:

i. whether there was a broadcast of the Documentary within the meaning of the Libel and Slander Act R.S.O. 1990, c. L.12;

ii. whether the Documentary referred to the Plaintiff; and

iii. whether the words in the Documentary are capable of bearing a defamatory meaning.

b. Leave, pursuant to Rule 21.01(2)(a) to file a DVD copy of the Documentary.

c. Directions in respect of the conduct of the trial in relation to:

i. The sequence of evidence to be given by the parties, charges to be made to the jury and submissions made by counsel; and

ii. Whether a bifurcation of the issues of liability and the quantification of damages is appropriate.

[4] I granted leave for a DVD of the Documentary to be filed as part of the record.

[5] On 23 April 2015 I advised the parties, for reasons to follow, that:

a. Because the plaintiff’s Rule 21 motion, which was heard three days before the scheduled commencement of the trial, had not been brought “promptly”, as required by Rule 21.02, I would not entertain it.

b. The sequence of evidence to be given by the parties, charges to be made to the jury and submissions made by counsel would be as provided for by Rule 52.07.

c. Absent the consent of all parties, I would not direct that the trial proceed in accordance with the modified form of bifurcation proposed by the plaintiff.

[6] These are my reasons.

Background

[7] Between 1974 and 2002, the plaintiff was employed as a professor and researcher in the faculty of medicine at Memorial University of Newfoundland (“MUN”). He became a world renowned expert in the fields of nutrition and immunology.

[8] The Documentary, which consisted of three segments broadcast on consecutive evenings, alleged that the plaintiff had fabricated research results which were then used as the basis for published scientific studies and reports. In the broadcast, the CBC claimed to have “uncovered a pattern of scientific fraud and financial deception dating back to the [1980]s”.

[9] A transcript of the Documentary is annexed to the statement of claim. The entirety of the broadcast, its introduction, text, visualisations, context and tone form the subject of the plaintiff’s claim.

[10] In addition to general damages for libel, aggravated damages, punitive damages and pecuniary damages (which he claims to have suffered as a result of the loss of business opportunities to market the plaintiff’s multivitamin product), the plaintiff claims general damages for invasion of privacy arising from unjustified publication of the plaintiff’s personal and private information.

[11] The CBC defendants admit that the plaintiff was mentioned in the Documentary and admit that certain of the words complained of were defamatory of and concerning the plaintiff. To the extent the words complained of are statements of fact, the CBC defendants say they are true. To the extent they are expressions of opinion, the CBC defendants assert that the words complained of are fair comment made in good faith and without malice on the basis of true facts with regard to a matter of public interest, namely the practice of scientists working and conducting research in universities in Canada.

[12] The CBC defendants further plead the defences of qualified privilege and responsible communication, and deny the plaintiff’s allegations of malice and breach of privacy.

Determination of an Issue Before Trial

[13] The question of whether the words complained of are capable of conveying a defamatory meaning is a question of law (see Assessmed Inc. v. Canadian Broadcasting Corp., [2004] O.T.C. 208 at para. 111 (S.C.), aff’d (2006), 2006 18619 (ON CA), 211 O.A.C. 240 (C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 341) and, as such, is a matter for the judge to decide. If the question of law is answered in the affirmative, it must then be determined whether the broadcast was, in fact, understood in its defamatory senses. That is the matter for the finder of fact (i.e. for the jury if there is one).

[14] In many cases it may be possible to resolve the “meaning” issue before trial. However, in some cases it will be necessary to consider the full context in which the specific words complained of were published in order to determine whether the words complained of are capable of conveying a defamatory meaning: Assessmed Inc. v. Canadian Broadcasting Corp. (2006), 2006 18619 (ON CA), 211 O.A.C. 240 at para 18 (C.A.). In such circumstances, Rule 21 may not be the appropriate mechanism even if, as was the case on this motion, the court allows the impugned publication or broadcast to form part of the record.

[15] Be that as it may, the more fundamental concern in this case is the timing of the plaintiff’s motion. This action was commenced on 27 April 2006. For nine months, commencing in August 2014, the action was case-managed by Gans J. There were multiple interactions between Gans J. and the parties through case conferences and email correspondence, throughout which the parties were encouraged to identify issues that could be dealt with prior to trial and submit them for judicial determination, if required. A trial date of 27 April 2015 was set for what was estimated to be a nine week hearing with a jury. Shortly after I was appointed the trial judge for this matter, I convened a trial management conference on 8 April 2015. It was only then that the plaintiff’s notice of motion was served.

[16] Rule 21.01(1)(a) provides that a party may move before a judge:

… for the 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, substantially shorten the trial or result in a substantial saving of costs.

[17] A motion under rule 21.01 “shall be made promptly and a failure to do so may be taken into account by the court in awarding costs” (Rule 21.02).

[18] This case has been working its way through the system for nine years. It has been case managed for the last nine months before trial. Despite that, notice of this motion was given less than three weeks before the scheduled trial date and the motion was heard three court days before the jury was to be selected.

[19] In seeking a determination of the prima facie defamatory quality of the impugned broadcast at this time, the plaintiff appears to be motivated, in part at least, because if that issue is resolved at this stage in the plaintiff’s favour, it adds force to the plaintiff’s arguments, discussed below, concerning the sequence of evidence.

[20] There will be cases where it is appropriate and desirable to determine before trial whether a statement complained of is capable of having the meaning attributed to it in the statement of claim.

[21] In the United Kingdom, the Second Report (session 2009-10) of the House of Commons Culture, Media and Sport Committee “Press standards, privacy and libel” noted (at para. 129) that “any measures to provide more certainty at an earlier stage, and which cut the enormous costs of libel proceedings in the UK, should be pursued more vigorously”. A Practice Direction to Part 53 of the Civil Procedure Rules provides express guidance on the conducting of “meaning” hearings well before trial.

[22] Many of the benefits of an early determination of “meaning” will, however, be lost where the motion is brought on the eve of trial.

[23] In Fleet Street Financial Corp. v. Levinson, [2003] O.T.C. 94 (S.C.), Rouleau J. held that a failure to bring a Rule 21 motion promptly can be the basis for dismissing the motion, concluding, at para 16:

In my view rule 21.02 should be read as requiring that a rule 21.01 motion be brought promptly. While rule 21.02 goes on to state that failure to do so may be taken into account in awarding costs, this latter part of the rule does not limit the generality of the first part. The obligation to act promptly is clear and the failure to bring a rule 21.01 motion promptly can, in the appropriate circumstances, be the basis for the judge exercising his discretion pursuant to rule 21.01 not to grant the relief sought.

[24] As already noted, the CBC defendants admit that some of the words complained of were defamatory of and concerning the plaintiff. However, they argue that, with respect to the balance of the words complained of, no real judicial economy will be achieved by engaging Rule 21 to determine the defamatory meaning of the words complained, rather than have the issue dealt with at the trial.

[25] While it would seem likely that, at an earlier stage of this case, a Rule 21 motion could have been an appropriate means of dealing with the “meaning” issue, a motion heard three days before the scheduled commencement of the trial and served just two weeks prior to that, has not been brought “promptly”, as required by Rule 21.02. In addition I tend to agree that in this particular case, and at this stage of the litigation, the benefits of resolving the meaning issue now, in terms of judicial economy, will be marginal at best. The Rule 21 relief is therefore denied.

Sequence of Evidence

[26] The plaintiff proposes that the usual order in which evidence is called is modified to reflect the distribution of onus in a defamation case.

[27] The plaintiff has the onus of proving that the broadcast is defamatory. Having done so, both falsity and damage are presumed, and the onus shifts to the defendants to establish an applicable defence: WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, per Binnie J. at para 1.

[28] The vast majority of the anticipated nine weeks of evidence at trial is likely to pertain to the defences of justification, fair comment, qualified privilege and responsible communication asserted by the CBC defendants. Restructuring the order in which the evidence is presented would, the plaintiff argues, facilitate the orderly presentation of evidence, alleviate any concerns regarding the jury's ability to understand the evidential burden in a defamation case, result in judicial economy, and assure the attainment of justice for the parties.

[29] Unless the “meaning” issue has already been determined (which in the present case, it has not, for the reasons given in relation to the plaintiff’s Rule 21 motion), the plaintiff suggests the following structure of trial:

a. After the jury is selected, the jury views the broadcast and counsel for the parties have the opportunity to address the jury.

b. The jury then decides the issue of whether the broadcast in fact bears the defamatory meanings alleged by Dr. Chandra.

c. If the jury determines that the broadcast does not in fact bear the defamatory meanings alleged by Dr. Chandra, Dr. Chandra is non-suited.

d. If the jury determines that the broadcast and the words complained of therein do in fact bear the defamatory meanings alleged by Dr. Chandra, then the defendants will call their case.

e. Dr. Chandra is afforded the opportunity to call reply evidence and the jury thereafter determines whether the defendants have established a defence to the defamation.

f. If the jury determines that the defendants have established a defence to the defamation, Dr. Chandra’s claim is dismissed.

g. If the jury determines that the defendants have failed to establish any defence to the defamation, Dr. Chandra leads evidence on damages and the defendants respond thereto.

[30] The plaintiff’s proposed batting order fails to take into account that the statement of claim also advances a claim for invasion of the plaintiff’s privacy, for which the plaintiff bears the onus of proof.

[31] Rule 52.07 of the Rules of Civil Procedure deals with the order of presentation in jury trials. The trial judge has discretion to direct an order of presentation other than that set out in Rule 52.07(1). In that regard, subrule (2) provides:

(2) Where the burden of proof in respect of all matters in issue in the action lies on the defendant, the trial judge may reverse the order of presentation.

[32] The plaintiff argues that Dr. Chandra will be put in an unjust position of having to anticipate all of the defendants’ evidence on the defence of justification and will be forced to prove a negative if Dr. Chandra has to lead all of his evidence on that issue prior to CBC leading any evidence. The prejudice to the plaintiff is further exacerbated by the CBC defendants’ failure to plead particulars in support of their plea of justification.

[33] The plaintiff asserts that requiring Dr. Chandra to lead evidence in his case in chief to address the other defences would result in the witnesses having to be called and re-called, which would be a “disaster” from a judicial economy perspective. This, the plaintiff argues, further supports their request for a change in the sequence of evidence.

[34] In Jerome v. Anderson, 1964 71 (SCC), [1964] S.C.R. 291, the trial judge had permitted the plaintiff to postpone giving evidence to rebut the defendants’ plea of justification until after the defendants had given their evidence in support of the plea. After quoting extensively from passages of the judgment of Singleton L.J. in Beevis v. Dawson, [1957] 1 Q.B. 195, [1956] 3 W.L.R. 1016 (C.A.), Cartwright J. stated:

These passages appear to me to be susceptible of either or both of the following interpretations in cases in which the trial judge has ruled that the plaintiff may reserve his evidence in rebuttal of the plea of justification; (i) that the trial judge may rule that the right to cross-examine the plaintiff's witnesses in support of the plea of justification be postponed as was done in the case at bar; and (ii) that if counsel for the defendants is allowed in cross-examination to elicit facts in support of the plea of justification the fact of his having done so shall not deprive the plaintiff of the benefit of the ruling that he may reserve his general evidence in rebuttal of the plea of justification until after the defendants have given their evidence in support of that plea.

In my opinion it rests in the discretion of the trial judge to follow either of these courses and the manner in which that discretion should be exercised will depend on the circumstances of the particular case. There may well be cases in which it will prove more convenient, while preserving the plaintiff's right to reserve his rebuttal, to permit counsel for the defendant to cross-examine the plaintiff at large when he is first called; I do not think any hard and fast rule can be laid down.

[35] In concluding that the trial judge had properly exercised his discretion to modify the procedure, Cartwright J. commented that it would have been “highly inconvenient” for the plaintiff to have to first prove the negative of the issue of the plea of justification before having heard the defendant’s evidence in support of that plea.

[36] While there is superficial appeal to the plaintiff’s proposal, I am not persuaded that it would make the jury’s task any easier or result in a more efficient trial process.

[37] The plaintiff must prove not only that the words were defamatory, but must also prove the tort of invasion of privacy as well as prove malice (to defeat a defence of fair comment) and damages. Rule 52.07(1) does authorise a trial judge to direct that the order of presentation should be otherwise than as provided by that rule. However, Rule 52.07(2), which specifically addresses circumstances in which the defendant bears “the burden of proof in respect of all matters in issue in the action” (not the situation in the case at hand), in which case a trial judge “may reverse the order of presentation” does not apply to the present case.

[38] A helpful overview of the general principles applicable to a request to reverse the order in which evidence is called at trial is provided by Leach J. in Pettit v. London (City), 2015 ONSC 125, 67 C.P.C. (7th) 417 at paras. 10‑17 [Pettit]:

As noted by Justices Fuerst and Sanderson, in their text on Ontario Courtroom Procedure, (3d ed.), at pp. 1090-1091, the fundamental concept of trials, with limited exceptions, is that each party calls all of its evidence at one time and in sequence, which includes calling a witness only once to give all of his or her testimony.

This is why the calling of reply evidence is “not routine”, except in civil trials where there is a counter-claim or cross-application. The party who calls evidence first is entitled to call reply evidence only where the opposing party, in its evidence, has “raised some new matter”, which the party first calling evidence “had not opportunity to deal with, or could not have reasonably anticipated”.

In particular, the “splitting” of a party’s case, (by failing to exhaust one’s evidence in the first instance, and attempting instead to first rely on prima facie proof before attempting to adduce evidence that merely confirms or reinforces the party’s case once the prima facie proof has been shaken by the case of an adversary), is not permitted.

The general rationale for the prohibition on “case splitting” is that “a defendant is entitled to know the case which he has to meet when presenting his defence, and it is not open to a plaintiff, under the guise of replying, to reconfirm the case which he was required to make out in the first instance or take the risk of non-persuasion”. See Allcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd., [1967] O.J. No. 1067 (C.A.), at paragraph 7, which emphasized the principle in the context of a case where there was “a single issue to be tried”, and the burden of proof rested with the plaintiff.

The rationale obviously might suggest a complete reversal in the “ordinary” order of evidence presentation in circumstances where the defendant, rather than the plaintiff, bears the onus of proof in relation to the single issue, or all issues; i.e., in situations where it is the plaintiff who arguably has an entitlement to know the case the plaintiff "has to meet" when presenting his evidence.

For example, such logic and such an approach is reflected in the provisions of Rule 52.07 dealing with the order of presentation in jury trials, and specifically, the indication in Rule 52.07(2) that the trial judge may “reverse the order of presentation” in cases “where the burden of proof in respect of all matters in issue in the action lies on the defendant”. [Emphasis added.]

A principled approach reflecting application of the above rationale nevertheless becomes more complicated where there are numerous issues to be decided in an action, and the burden of proof is divided between the parties, depending on which issue is being considered.

In such cases, trial judges have been invited to weigh competing considerations of principle, convenience and order, (in the exercise of their broad discretion to determine the conduct of a trial, ensure fairness, and see that justice is done), and in some cases have found that a modification of the ordinary procedure for the leading of evidence, and corresponding rights of cross-examination, was appropriate.

[39] Pettit was a judge-alone trial involving a wrongful dismissal claim. Leach J. noted at para. 29 that “an important factor in deciding whether to adopt such a modified procedure is careful consideration of ‘how cleanly the plaintiff’s evidence can be divided as between the issues proposed to be addressed during the plaintiff’s case and those proposed to be addressed in rebuttal’” [quoting from Campbell v. Jones, [2001] N.S.J. No. 595 (S.C.)]”. Leach J. continued at para. 30:

Pursuit of a principled approach, in relation to making a party with the burden of proof on an issue lead its evidence first, therefore may lead to a good deal of practical confusion and inconvenience in cases with numerous issues, some of which may be inextricably intertwined, but also cast the associated burdens of proof on different and opposing parties.

[40] In a jury case, Rule 52.07(2) is an additional factor which firmly implies that a reversal of the order in which evidence is called should in most, if not all, cases be limited to those where the defendant bears the onus in respect of all matters.

[41] Regardless of whether the evidence is presented in the usual order or in the order proposed by the plaintiff, the jury will have to deal with a number of issues in relation to which the plaintiff or the CBC defendants respectively will bear the burden of proof. The evidence of any given witness will in many cases touch upon multiple issues. Absent compelling reasons to do otherwise, the usual order in which evidence is presented should not be changed.

[42] There is a further, practical consideration which militates against reversing the order in which evidence is presented in the present case. A large number of witnesses are scheduled to give evidence at trial. Many of them are from outside Ontario and, indeed, several are from outside of Canada. The CBC defendants have prepared on the basis that the plaintiff will be calling his case first and have scheduled their witnesses and organised their trial preparations accordingly. There is a very real possibility that if the order of trial is reversed, some witnesses will not be able to attend, while others will be significantly inconvenienced.

Bifurcation of the Issues of Liability and Damages

[43] The plaintiff submits that, regardless of my determination of the order in which evidence is called, the issues of liability and damages should be bifurcated such that they are dealt with by the same jury but at different points within the trial.

[44] The plaintiff argues that only if liability is established should the jury hear evidence to determine the quantum of damages.

[45] The CBC defendants oppose this relief.

[46] Rule 6.1.01 permits the court to order separate hearings on the issues of liability and damages if the parties consent. Where all issues are to be tried by a jury, a trial judge’s power to bifurcate trials should be exercised “only in the clearest cases”: Elcano Acceptance Ltd. et al. v. Richmond, Richmond, Stambler & Mills (1986), 1986 2591 (ON CA), 55 O.R. (2d) 56 (C.A.).

[47] The plaintiff argues that their request is not a strict bifurcation, in the sense that the same judge and jury would determine all issues in the case. What is being proposed is simply an arrangement of the issues and their determination by the jury which would eliminate the need to try the issue of damages if it has been made redundant by reason of a dismissal of the plaintiff’s claim at the liability stage.

[48] In my view, in the absence of consent by the parties, the request to try the issue of damages after completion of the liability trial should be rejected. Furthermore there would inevitably be some overlap of the evidence pertaining to liability and damages. For example, causation – the extent to which the broadcast has damaged the plaintiff’s reputation and economic interests – would appear to be a contentious issue. Bifurcation, even in the modified form suggested by the plaintiff, would not be justifiable where few if any resources (either the parties’ or the court’s) would be conserved: Air Canada v. West Jet Airlines Ltd. (2005), 20 C.P.C. (6th) 141 (S.C.).

Costs

[49] Costs of these motions should be determined following trial, unless previously agreed by the parties.

Mew J.

Released: 30 July 2015

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

RANJIT KUMAR CHANDRA

Plaintiff

– and –

CANADIAN BROADCASTING CORPORATION, CHRIS O’NEILL-YATES, CATHERINE MCISAACS, LYNN BURGESS, JACK STRAWBRIDGE and MEMORIAL UNIVERSITY OF NEWFOUNDLAND

Defendants

REASONS FOR DECISION

Mew J.

Released: 30 July 2015