ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-14-00506377
DATE: 20150903
BETWEEN:
CHARMAINE KERRIDGE
Plaintiff
– and –
SUN MEDIA CORPORATION, SAM PAZZANO, WENDY METCALFE, KEVIN HANN and CYNTHIA McLEOD
Defendants
Charmaine Kerridge, in Person
Tycho Manson, for the Defendants
HEARD: September 3, 2015
K.p. WRIGHT, J.
REASONS FOR DECISION
[1] This motion, brought by Charmaine Kerridge arises in an action for libel.
[2] The action stems from a newspaper article published in the Toronto Sun on March 12 and 14, 2014 (the “Article”).
[3] The main issue in the action is whether Ms. Kerridge, the Plaintiff, was defamed by the Article, and, if so, whether the defences pleaded by the Defendants apply.
[4] The Plaintiff’s Notice of Motion and Affidavit indicate that she is seeking relief today in relation to six distinct issues.
[5] I will deal with each issue individually.
1. Request for an Order Requiring the Defendants to Verbally Negotiate a Discovery Plan
[6] It is clear from a reading of the materials, that despite numerous efforts, the parties are unable to agree upon a discovery plan.
[7] I am mindful that the Plaintiff would prefer a verbal discussion around this issue and is frustrated by the Defendants’ reluctance to participate in anything other than in writing.
[8] I, however, find no fault with the way the Defendants have been conducting themselves. Communicating in writing in my view creates transparency and protection for all parties concerned. It reduces the risk of miscommunication and allows for review by a third party if necessary. In my view, the Plaintiff should take comfort in this process rather than resist it.
[9] I agree with the Defendants that this Court does not have the jurisdiction to make such an Order. I also agree with the Defendants that the matter is not overly complicated and as such should move directly to discoveries.
2. Request of an Order for Written Examinations for Discovery
[10] Pursuant to Rule 31.02(1) of the Rules of Civil Procedure, an examining party may opt to conduct examinations for discovery either orally or in writing, but not both without the leave of the Court.
[11] The Defendants do no object to the Plaintiff conducting her examinations in writing. They, however, wish to examine the Plaintiff orally which is their right and one which this Court is not prepared to interfere with.
3. An Order for Sam Pazzano’s Record of Obtaining the Statement of Claim in the TCCH Action
[12] The Defendants have indicated that despite their best efforts no such records exist. Even if they did, I fail to see their relevance.
[13] I agree with the Defendants that Sam Pazzano was like any other member of the public entitled to search the court files and to retrieve a copy of the Statement of Claim in the TCHC action. These documents, once filed with the court, become part of the public record unless otherwise ordered.
[14] Accordingly, there is no basis for the Order being sought by the Plaintiff.
4. An Order Removing the Disputed Story from the Toronto Sun Website
[15] I find that there is no basis for an Order removing the disputed story from the Toronto Sun Website.
[16] Here is why.
[17] I agree with the Defendants that an Order for an interlocutory injunction in a defamation case is subject to a different and stricter test that the standard three prong test for an interlocutory injunction.
[18] I also agree and find that the Plaintiff has failed to meet her onus in that regard.
[19] I fully accept and am guided by the test as set out by the Supreme Court of Canada in Rapp et al. v. McClelland and Stewart Ltd. et al., 1981 1696 (On SC) and Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 818 (SCC), where the court states that for an injunction of this nature to issue, the words complained of must be so obviously defamatory that anything other than a verdict in favour of the plaintiff would have to be regarded as perverse.
[20] I am also grateful for and rely upon the decision of Justice Myers from the Supreme Court of British Columbia in Seafarers’ International Union of Canada et al. v. International Longshore and Warehouse Union Canada, Local 400, 2009, BCSC 1269 where he formulated the test as follows:
“The object of the exercise must surely be to assess the likelihood of a plaintiff succeeding at trial. That is dependent on both what a plaintiff must show in order to succeed and what a defendant must demonstrate in order to make out a defence.”
[21] To grant an injunction at this stage I would have to find that the words in the Article are so obviously defamatory and that the defences plead are obviously going to fail.
[22] On the facts of this case the answer to both those questions is a resounding, no. I do not find the words in the Article to be obviously defamatory. The plaintiff’s main complaint seems to be that the Article is inaccurate. Her concern is about inferences and innuendo which is the opposite of obvious.
[23] The Defendants’ pleadings are set out succinctly in paragraph 39 of their Factum. I accept them and I do not intend to repeat them now.
[24] There is no evidence before me on this motion that would lead to the conclusion or even remotely demonstrate that the defence must fail. There is no evidence before me that would prove that words complained of the Article were published with malice.
[25] In applying the legal test as set out above, to the facts on this matter, I am unable to conclude that the Plaintiff would be successful at trial.
[26] I find that she has failed to meet her onus in that regard and as such the mandatory Order sought by the Plaintiff will not issue.
5. An Order Seeking a Better Affidavit of Documents
[27] There is absolutely no evidence from the Plaintiff to support a finding for further and better affidavit of documents pursuant to Rule 30.06 of the Rules of Civil Procedure.
[28] As such there is no basis for the Order requested.
6. An Order for Amendment of Pleadings
[29] The Defendants consent to the Plaintiff’s proposed amendments to her reply.
[30] Accordingly, there is no basis for any further Order in this regard.
Costs
[31] The Defendants are the successful party and are thereby entitled to costs.
[32] I find costs in the amount of $5000.00 to be fair and reasonable given the unique circumstances that attach themselves to this case.
K.P. Wright, J.
Released: September 3, 2015
COURT FILE NO.: CV-14-00506377
DATE: 20150903
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHARMAINE KERRIDGE
Plaintiff
– and –
SUN MEDIA CORPORATION, SAM PAZZANO, WENDY METCALFE, KEVIN HANN and CYNTHIA McLEOD
Defendants
REASONS FOR JUDGMENT
K.P. WRIGHT, J.
Released: September 3, 2015