Court File and Parties

COURT FILE NO.: CV-12-462755 DATE: 20160425 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: NINA S. WILLIS, TRAVIS WILLIS, Latania WILSON, VIVIAN WILLIS, KYMARA WILSON and CHRISTOPHER LANCELOTTE, Plaintiffs AND: EMILY MATHIEU and THE TORONTO STAR, Defendants

BEFORE: Stinson J.

COUNSEL: Nina Willis and Travis Willis, acting in person Kaley Pulfer, for the Defendants/Moving parties

HEARD: April 18, 2016

Endorsement

[1] This decision concerns a motion brought by the defendants to dismiss this action on the ground that the plaintiffs failed to provide the notice required by s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12.

[2] This lawsuit was commenced on September 4, 2012. None of the plaintiffs was or is represented by a lawyer. At the hearing before me on April 18, 2016 only Nina Willis and Travis Willis attended. The defendants have no address for service for any of the remaining defendants. Neither Nina Willis nor Travis Willis knows the whereabouts of the plaintiff Latania Wilson, who is their sister, nor that of Kymara Wilson, the adult daughter of Latania Wilson. The plaintiff, Vivian Willis is the mother of Nina, Travis and Latania and she resides in Nova Scotia. The plaintiff, Christopher Lancelot is the brother-in-law of Nina Willis and Travis Willis and he lives at an undisclosed address in Toronto. I was told by Nina Willis and Travis Willis that Vivian Willis and Christopher Lancelot are both aware of this motion although they have not been served.

[3] Because the defendants were aware of the address of Nina Willis, but none of the other plaintiffs, they were in a position to serve the Notice of Motion on her alone. Plainly, Travis Willis was personally aware of the motion: he attended and, I am told, he lives at the same address as Nina Willis. Although Vivian Willis and Christopher Lancelot were aware of the motion, they were not personally served, and neither attended or participated. Latania Wilson and Kymara Wilson have not had any notice of the motion. Lack of service is significant since the defendants seek to have the claims of all plaintiffs dismissed. Before I would be prepared to do so, I would need to be satisfied that all plaintiffs were properly served. For this reason to the extent relief is sought in this motion as against the plaintiffs other than Nina Willis and Travis Willis, I am not prepared to grant it.

[4] One of the legal grounds for the claim as pleaded in the statement of claim is defamation of the plaintiff Nina Willis. None of the other plaintiffs claims relief grounded on defamation. Since Nina Willis was properly served with the notice of motion and was present in court and in a position to respond, I am prepared to deal with the motion as it relates to her defamation claim.

[5] Nina Willis conceded that she did not serve a notice under s. 5(1) of the Libel and Slander Act before commencing this action. The Court of Appeal for Ontario has made it clear that compliance with s. 5(1) of the Libel and Slander Act is a condition precedent to the commencement of an action for libel. Failure to do so constitutes an absolute bar. If that section has not been complied with, any lawsuit for defamation against a newspaper may be dismissed. Grossman v. CFTO-TV Ltd. (1982), 39 O.R. (2d) 498.

[6] Since Nina Willis has admitted that she failed to serve a notice under s. 5(1) of the Libel and Slander Act, her claims for defamation in this lawsuit cannot succeed. As a result, I make an order dismissing her claims for libel.

[7] The statement of claim contains a number of additional allegations. On a rule 21.01 motion such as this, I am required to accept the facts in the statement of claim as proven unless they are patently ridiculous or incapable of proof. Nash v. Ontario (1995), 27 O.R. (3d) 1 (C.A.). As well, before I can exercise my power under rule 21.01 to strike out a claim, it must be plain and obvious that it discloses no cause of action. Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.

[8] Leaving aside the claim for libel, the statement of claim includes a number of allegations relating to the conduct of the defendant Emily Mathieu (a reporter for the defendant newspaper) that describe her chasing the plaintiff aggressively, chasing Travis Wilson, running after Latania Wilson and contacting Vivian Willis and causing her upset by reason of the questions posed. The conduct of Mathieu and the newspaper is described as a personal vendetta and their activities described as unprofessional. The statement of claim alleges that this conduct has caused Nina Willis and her family serious harm and has ruined their lives. Although no specific reference is made to the plaintiff Kymara Wilson, given that she is a member of the plaintiffs’ family, it is arguable that she is covered by the allegations made. In any event, given that she has received no notice of this motion, I am not prepared to grant relief by way of dismissing her claim.

[9] This is not a motion for summary judgment. I am not called upon to weigh or consider evidence or the merits of the claims or of any potential defence that might be raised by the defendants in response to what Nina Willis has characterized as “harassment” in the course of the defendants’ news collection and reporting activities. At this stage of the litigation, I am not in a position to consider whether the defendants might have a meritorious defence to the plaintiffs’ allegations. Rather, on a motion such as this, I am required to determine whether, accepting the facts alleged as proven, it is plain and obvious that the plaintiffs claim cannot succeed.

[10] In Jones v. Tsige (2012), 106 O.R. (3d) 721, the Court of Appeal recognized the tort of intrusion upon seclusion. It is arguable that the conduct described in the statement of claim could meet the test set out for that tort or a variation of it. At this stage of the proceeding a statement of claim is to be read generously, allowing for drafting deficiencies.

[11] Assuming that the plaintiffs are able to establish the degree of misconduct that they describe in the statement of claim, and the impact it has had on the plaintiffs, I cannot say that it is plain and obvious that the defendants’ conduct is not actionable. It may well be that, depending on the degree of interference established, the nature of the harassment proven and the impact and consequences for the plaintiffs, a cause of action within or akin to the principles set out in Jones v. Tsige may be made out in this case.

[12] To be clear, this ruling does not amount to a determination that the plaintiffs will succeed. Rather, this ruling is merely a preliminary determination that – leaving aside the defamation aspects of the claim – it is not “plain and obvious” that the lawsuit is bound to fail. It remains to be seen whether the plaintiffs can prove their case and whether the defendants can establish a valid defence.

Conclusion and Disposition

[13] For these reasons, I conclude that the libel claim of the plaintiff Nina Willis must be dismissed. The motion is therefore granted insofar as that claim is concerned. As regards her remaining claims and all of the claims of the remaining plaintiffs, the motion is dismissed.

[14] In light of the divided success on this motion there will be no order as to costs.

[15] I note that Ms. Willis has suggested that it would be appropriate for this action to be consolidated with another proceeding she has commenced against the same defendants. I make no comment whether this is or is not appropriate, since I have not seen the pleadings in the other action, nor was I asked to evaluate potential consolidation. I direct the parties to engage in discussions about whether consolidation is appropriate since that issue is not properly before me I make no comment.

[16] Depending on the outcome of the discussion about consolidation, I direct the defendants to deliver their statement of defence to the consolidated action within 30 days after service of the consolidated statement of claim; or, if there is no consolidation, the defendants shall serve their statement of defence to the present action within 30 days of the release of this decision.

Stinson J. Date: April 25, 2016