ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Vivo Canadian Inc. and Dil Muhammad
H. Richard Bennett, for the Plaintiffs/Respondents
Plaintiffs / Responding Party
- and -
Geo TV
R. Foerster, P. Gemson, for the Defendant/Applicant
Defendant/Moving Party
HEARD: April 21 & 23, 2021
DECISION ON MOTION FOR SUMMARY JUDGMENT
BALTMAN J.
Introduction
1The Defendant brings this motion for summary judgment. The action arises from a television program broadcast in Pakistan entitled “Khabarnak”, a portion of which is alleged to have defamed the Plaintiffs by suggesting that they engaged in immigration fraud.
2The Defendant maintains that the action is meritless and should be dismissed on the following grounds:
a) The broadcast is not defamatory of the Plaintiffs;
b) The action is barred by the Libel and Slander Act, R.S.O. 1990, c. L.12;
c) There is no evidence that the Defendant caused any damages to the Plaintiffs; and
d) There has been inordinate delay by the Plaintiffs.
3For the following reasons the motion is dismissed.
Background
4The individual plaintiff, Dil Muhammad (“Mr. Muhammad”) is a businessperson who resides in Mississauga, Ontario. The corporate plaintiff Vivo Canadian Inc. (“Vivo”) has its head office in Mississauga. When the events occurred that gave rise to this action, Mr. Muhammad was the principal Officer, Shareholder and Director of Vivo.
5The named defendant, Geo TV (“Geo”), is the trade name of a Pakistani television broadcaster, Independent Media Corporation Limited (“IMC”).
6In the spring of 2011, Vivo was, for the first time, a co-sponsor of the sixth annual Canada-Pakistan Trade Fair (“Trade Fair”). The Trade Fair consisted of both a trade show and a musical concert. The concert featured various Pakistani artists who were to travel from Pakistan and perform live at the International Centre in Mississauga, Ontario on September 3 and 4, 2011.
7Consistent with the past five years, the two-day Trade Fair was expected to attract over 40,000 attendees and several hundred exhibitors. A thorough media kit was created which identified Vivo’s and Mr. Muhammad’s involvement in the event. This included coloured posters and a detailed program that specifically identified Vivo as a co-sponsor of the event and Mr. Muhammad as a contact person for sponsorships and stall bookings.
8On July 24, 2011, Geo broadcasted a television program known as “Khabernak” in Pakistan. Geo subsequently authorized the rebroadcast of the program worldwide through various broadcasters and posted the program online on Geo TV’s Network YouTube Channel.
9The Khabernak program is a satirical television show covering political and current affairs, then hosted by Aftab Iqbal. On this day, the program included an interview with an unidentified informant. It is that interview that gives rise to this action, as the Plaintiffs allege that the words spoken by the informant are defamatory of them. The pivotal portion of the interview, as officially translated, contains the following exchange:
Informant: Aftab, the movie is related to Colonel who is located in Canada. There is a Vivo Canada Pakistan Trade fair which takes place in Canada, and Pakistanis have already slipped away twice from there.
Interviewer: Okay, please explain, “slipped away”.
Informant: “Slipping away” means you disappear once you reach Canada. Before you know it, you are settled there.
Interviewer: OK, Ok.
Informant: This is the reason why the Canadian Trade Minister has announced that they will not recommend visa issuance to Pakistanis. This time they have planned something different: to celebrate Aug 14 on Sept 3 & 4. I am talking about the Mafia that exists there. Do you understand what I am saying?
Interviewer: Brother, people will be taken from here and they will “slip away” in Canada.
Informant: Yes, exactly they will take the people with them. Not animals!
Interviewer: All right, give us some news, some inside news.
Informant: Now, the news is there are 20 singers whom no one knows anything about.
Interviewer: Whether they are singers or not?
Informant: Exactly right, no one knows whether they are singers, eunuchs, or what, nobody know. Apart from that, there are about 60-70 instrumentalists that nobody knows about. Besides, no one really knows anything about instrumentalists anyway.
Interviewer: They pay to get the visa?
Informant: Correct, Aftab. It takes minimum 2 million Rupees per person. It has three disadvantages Aftab, shall I tell you?
Interviewer: For example what?
Informant: Number 1, the genuine cases of immigration and sponsorships are not being addressed and they are stuck at the same place. Number 2, the country is severely defamed and you cannot even imagine it. And number 3, trading is severely damaged. Do you understand? It’s very easy to sit on a couch and laugh and conduct a show but facing ground reality is another matter.
Interviewer: And you’re facing the ground realities over there? You are stealing someone else’s blackberries!
Informant: Our mind is stuck there and we feel the pain despite hanging on a tree, we feel it.
Interviewer: So, who is to blame?
Informant: The biggest responsibility is on the foreign office. There was one person here who was the Council General but I do not want to go in the details, try to understand what I am saying.
Interviewer: So was he doing all this?
Informant: Understand this on your own, or do I have to tell you everything?
Interviewer: No, tell me the name of the person; where it all started from.
Informant: Aftab, I already have told you many times that if you do not care for your self-respect, I care for mind so please be mindful of it. I am in trouble now anyway, so don’t make me say anything negative.
Interviewer: OK, we are done now. Thank you very much.
[Emphasis added.]
10The Plaintiffs claim that the broadcast was disastrous both for their reputation and for their finances. In particular, they assert that as a result of the allegations of visa fraud, the various artists and musicians who were scheduled to attend were denied visas. Although the Trade Fair went ahead, without the artists the Plaintiffs were forced to cancel the musical concert, which was the intended highlight of the Trade Fair. This in turn required them to refund concert tickets already sold and prevented them from selling any additional concert tickets.
Test for Summary Judgment
11Summary judgment is available in a defamation action: Zhong v. Wu, 2019 ONSC 7088, at para. 13; Zoutman v. Graham, 2019 ONSC 2834, at para. 59. It shall be granted if there is no genuine issue requiring trial, when the court is able to reach “a fair and just determination” on the record in the summary judgment motion: Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; Hryniak v. Mauldin, 2014 SCC 7, at para. 49.
12This will be the case where the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak, at para. 49.
13In making that determination, the court shall not only consider the evidence submitted by the parties but may weigh evidence, evaluate credibility or draw reasonable inferences from the evidence, unless in the interests of justice such powers should only be exercised at a trial: R. 20.04(2.1).
14Although the onus is on the moving party to establish the absence of a genuine issue requiring a trial, there is an evidentiary burden on the responding party, who may not rest on the allegations or denials in the party’s pleadings, but must present by way of affidavit, or other evidence, specific facts showing that there is a genuine issue for trial: Columbos (Attorney for) v. Columbos, 2014 ONSC 1342, at para. 10.
Issue #1: Is the broadcast defamatory of the Plaintiffs?
Legal Framework
15The burden of proof in a defamation claim lies with the plaintiff, who is required to prove the following three elements:
(1) That the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
(2) That the words in fact referred to the plaintiff(s); and
(3) That the words were published, meaning that they were communicated to at least one person other than the plaintiff: Grant v. Torstar Corp., 2009 SCC 61, at para. 28.
16These elements are cumulative, such that failure to prove any one of them is fatal to a plaintiff’s claim. That said, if these elements are established on a balance of probabilities, falsity and damage are presumed. The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability: Grant, at para. 28.
17Some elaboration is required of the first element, namely whether the words complained of are defamatory. In determining whether a reasonable person would interpret the words at issue as defamatory, courts look to the entire context of the impugned content, and assess the words based on their natural and ordinary meaning. Where, as here, the alleged defamatory statement is in a television broadcast, the broadcast itself must be viewed. When a statement is made in a humorous or satirical context, the question is whether a reasonable person would take the speech seriously or merely as a joke. The standard is that of a balance of probabilities: Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3, at para. 62; Raymond E. Brown, The Law of Defamation in Canada, 2nd ed. (Toronto: Carswell, 1994), at 5.10(1), 5.5(1)(a), 5.8(2), and 5.9(4).
Analysis
1. Was the broadcast defamatory?
18The Defendant claims that a reasonable person would not interpret the words in issue as defamatory, particularly given the context in which they were uttered. The Defendant asserts that the entire tenor of the broadcast is comical, even ridiculous. It notes that the unseen caller is depicted on screen through the image of a pink panther, and that he frequently compares himself to an animal or makes jokes at his own expense. The audience regularly bursts out laughing. The Defendant therefore argues that any reasonable person would understand the impugned speech was nothing more than humour or satire.
19Early on during the hearing, and with the agreement of both parties, I watched and listened to the broadcast. Based on what I saw and heard, I easily conclude that a reasonable person would in fact view the impugned portions as defamatory.
20In particular, the broadcast alleges the following:
a) Pakistanis are being brought into Canada illegally, i.e. using illicit means to obtain a visa (“they will ‘slip away’ in Canada”);
b) The persons responsible are akin to a “Mafia”;
c) The wrongdoers are profiting greatly: there are 20 singers and 60-70 instrumentalists who “pay to get the visa”, to the tune of 2 million Rupees per person (then the equivalent of $40,000 CAD per person, for a total of between $3.2 million and $3.6 million CAD); and
d) As a result of this activity, the Canadian Trade Minister will not recommend visas being issued to Pakistanis.
21I reject the Defendant’s suggestion that this was meant to be taken humorously. The tone of this particular exchange lacks the banter and jocularity seen earlier in the broadcast. Although punctuated with a few moments of laughter, its overall tone is serious, and the audience treats it as such. As the informant states, “[i]t’s very easy to sit on a couch and laugh… but facing ground reality is another matter”.
22The Defendant further asserts that where, as here, the plaintiff seeks to establish that the words complained of are defamatory by “innuendo”, that should be specifically pleaded, and here it was not. I reject that argument, for two reasons. First, para. 12 of the Statement of Claim alleges that the broadcast “ascribed” criminal activity to the Plaintiffs, which means it imputed they acted criminally. That, in my view, is proximate to alleging through innuendo. Second, in their Statement of Defence, the Defendants repeatedly denied having made any libellous statements, either expressly “or through innuendo” (paras. 10, 12, and 13), thus demonstrating they understood the Plaintiffs might be relying on innuendo.
2. Do the impugned words refer to the Plaintiffs?
23The Defendant argues that a reasonable person would not link the impugned conduct to the Plaintiffs. Vivo is not referred to by its full name, and Mr. Muhammad is not referred to at all in the broadcast. The episode makes only a single, passing reference to “Vivo Canada Pakistan Trade Fair”.
24I disagree. I find the reference to “Vivo Canada Pakistan Trade Fair” in the interview could reasonably be understood as referring to Vivo Canadian Inc., particularly given the similarity between “Vivo Canada Pakistan Trade Fair” and the musical event sponsored by Vivo Canadian Inc., i.e. the Canada Pakistan Trade Fair.
25Importantly, the impugned segment begins by identifying Vivo Canada as the culprit: “In Canada there is a Pakistan Canada Vivo Trade fair which takes place in Canada, and Pakistanis have already slipped away twice from there” (emphasis added). That link is continued, with several references to “they” being responsible for the “slipping away,” and correctly noting that “they” have something planned for the specific dates of September 3 and 4, which coincides with Mr. Muhammad’s sponsorship of the event through his company, Vivo.
26Further, there is extensive affidavit evidence of a clear association within the Canadian Pakistani community between Mr. Muhammad and Vivo Canadian Inc., including his activities on behalf of the company and his leadership within the community. Consequently, any defamatory words made in relation to Vivo Canadian Inc. are reasonably construed to be defamatory of Mr. Muhammad as well. While Geo maintains that evidence is unreliable because it derives from individuals who have a business connection with the plaintiffs, that is an issue that goes to weight and is better left for trial.
27Beyond all that, the promotional literature for the Trade Fair clearly links both Plaintiffs to the event. There is evidence indicating that the promotional posters were widely distributed and seen within the Canadian Pakistani community in the GTA. The advertising posters and the media kits repeatedly identify both “Vivo Canadian” and “Dil Muhammad” as the sponsors, promoters and contact links.
28In sum, the bottom-line impression from the broadcast is as follows:
Vivo (and by association Mr. Muhammad) are characterized as Mafia engaging in immigration fraud in excess of $3,000,000;
The fraud is stated to be the reason why legitimate Pakistani applicants for Canadian visas are rejected; and
Vivo and Mr. Muhammad were going to further perpetrate their visa immigration fraud for Vivo’s upcoming Canada Pakistan Trade Fair on September 3, and 4, 2011, in Mississauga, Ontario.
29I therefore agree that the impugned words implicate both Plaintiffs.
3. Were the defamatory words published?
30Geo claims there is no proof that publication of the impugned episode authorized by IMC ever occurred in Ontario on July 24, 2011, or that anyone in Ontario has ever viewed a broadcast of the impugned episode authorized by IMC. Although IMC did have a contractual arrangement in place with Geo TV Canada (a separate legal entity), permitting a rebroadcast of the program on Rogers Cable, that rebroadcast never occurred because of a failure of the satellite downlink. Moreover, although the plaintiffs also complain that the episode was available in Canada on the internet or on YouTube, IMC has never posted or authorized the posting of the episode in either forum.
31In response to evidence from plaintiffs’ witnesses who viewed the episode on television through a “Jadoo” box or via the U.S. through the DISH network, or on the internet or YouTube, Geo asserts that such broadcasts were either illegal or unauthorized by Geo, and therefore cannot form the basis of a claim.
32This misses the point. It is well established in Canadian law that the tort of defamation occurs upon publication of a defamatory statement to a third party. The includes publication when the impugned statements are read, downloaded and republished in Ontario. It is also well established that every repetition or republication of a defamatory statement constitutes a new publication. The original author of the statement may be held liable for the republication where it was authorized by the author or where the republication is the natural and probable result of the original publication: Breeden v. Black, 2012 SCC 19, at para. 20. Similarly, as stated in The Law of Libel in Canada, 4th ed. (Peter A. Downard, Toronto: LexisNexis, 2018), at §5.36:
A defendant may be liable for republication if the defendant has authorized the republication or the republication is “the natural and probable consequence” of the defendant’s initial publication. The defendant will be liable for a third party’s republication of the defendant’s defamatory statement where the republication was foreseen or reasonably foreseeable by the defendant. A defendant will be responsible for the republication of defamatory words where a person speaks to the media with the intention or knowledge that his or her words will be republished, or where republication in further editions of a newspaper or newscast, or by individuals, is foreseeable. [Citations omitted; emphasis added.]
33The evidence indicates that Geo intended vast reproduction and circulation of its programming worldwide. Geo authorized through multiple distribution agreements that the program be disseminated on television, and Geo also authorized the posting of the program on Geo’s Network YouTube channel. The republication of the Khabarnak broadcast is, therefore, both the natural and probable result of Geo’s original publication and was reasonably foreseeable by Geo.
34Geo is very familiar with piracy issues and has responded with efforts to protect its copyright and prevent other agencies from accessing its content. It has its own department dedicated to that pursuit. Geo is familiar with litigation that is currently ongoing in the U.S. involving the dissemination of its program material over the DISH network.
35In any case, it is undisputed that Geo authorized republication into the U.S. I agree with the Plaintiffs that whether someone acquires the signal from across the border in Canada should not operate to protect Geo. If the program is defamatory, it is irrelevant whether the viewer in Canada received the signal from Rogers and pays Rogers, or through a Jadoo box and does not pay Rogers. That the royalty fees are not collected by Geo should not insulate it from liability where, as here, republication is the natural and probable consequence of the original broadcast and of the authorization by Geo to broadcast in the U.S.
36Geo’s alternative argument is that the Plaintiffs failed to specifically plead this exception. It relies on Browne v. Toronto Star Newspapers Ltd., 2013 ONSC 3348, at para. 13, where the court concluded that the plaintiff could not adduce evidence of republication because it had failed to specifically include that allegation in its Statement of Claim. See also Lysko v. Braley (2006), 2006 CanLII 11846 (ON CA), 79 O.R. (3d) 721 (C.A.), at para. 129.
37The Court in Browne recognized that “there may be cases of notoriety where, absent a specific pleading of an exception, a court might be prepared to find that the fact of publication” was sufficient to raise the issue of republication by other providers, but concluded that was not such a case: at para. 14.
38Here the Plaintiffs pleaded republications, but the Statement of Claim suggests they were all linked to the Defendant via various contractual relationships throughout the world. The Statement of Claim does not specifically plead that the Defendant is also liable for republications by persons or corporations other than the Defendant or its agents.
39I have two responses. First, as I have already noted, Geo has several distribution agreements with other publishers. There is also compelling evidence that the Khabarnak program is extremely popular within the Pakistani community worldwide and that this broadcast in particular was widely seen. In these circumstances, as contemplated in Browne, even absent a specific pleading of this exception it is reasonable to conclude that Geo’s broadcast achieved a level of notoriety that is sufficient to raise the issue of republication by other providers.
40Beyond that, it is both ironic and troubling that the Defendant first raised this issue during oral argument before me on this motion. The specific allegation of a failure to plead a republication exception does not appear in its 14-page Notice of Motion or in its factum of 30 pp. in length, in particular within paras. 39-44 which address the issue of publications and rebroadcasts. Moreover, the Defendant brought a motion back in March 2013 alleging that the claim did not disclose any reasonable cause of action in defamation and therefore should be struck. There is no evidence this complaint was raised at that time and it does not appear in the reasons of Fitzpatrick J.1, who dismissed the motion.
41Further, the Defendant does not suggest it is surprised by the allegation of republications by third parties or that it lacked the opportunity to fully explore that issue during the many examinations for discovery that have already taken place. The Plaintiffs have been asserting throughout this action that Geo is aware that piracy of its programming occurs on a regular basis. Geo’s distributor in the United States is currently participating in a lawsuit over copyright infringement. In these circumstances, it strikes me as both unfair and disingenuous for Geo to raise this argument for the first time at this late stage in the proceeding.
42For those reasons, based on the unique facts of this case, I find the omission of a specific reference in the Statement of Claim to the republication exception is not an adequate basis for dismissing the claim.
Issue #2: Is the Plaintiffs’ claim barred by the Libel and Slander Act?
The Legal Framework
43The Libel and Slander Act (“LSA”) contains both a notice requirement and a limitation period. First, under s. 5(1) of the LSA, where the action is for libel “in a newspaper or broadcast”, a plaintiff must deliver a written notice “specifying the matter complained of” within six weeks of the plaintiff having knowledge of the alleged libel.
44Second, under s. 6 of the LSA, an action for libel in a newspaper or in a broadcast must be commenced within three months after the libel has come to the knowledge of the person defamed.
45Importantly, however, under s. 7, those provisions “apply only to newspaper printed and published in Ontario and to broadcasts from a station in Ontario” (emphasis added).
Analysis
46In their pleadings, the Plaintiffs allege two modes of publication of the impugned program: (i) the Pakistan broadcast on July 24, 2011 and the rebroadcast of the impugned program from Ontario (and elsewhere) on July 24, 2011 and at other times; and (ii) republication of the impugned program on the internet via postings to YouTube.
47At two separate points (paras. 9 and 17) the Statement of Claim explicitly refers to “rebroadcasts from” or “rebroadcasts on” stations in Ontario.
48Geo asserts that while the LSA may not apply to publications via YouTube, any broadcasts and/or rebroadcasts in Pakistan and Ontario are barred by the Plaintiffs’ failure to provide notice under the LSA. It relies, in particular, on a single sentence extracted from Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), 2005 CanLII 19660 (ON CA), 256 D.L.R. (4th) 407 (C.A.), at para. 41, to the effect that where a plaintiff pleads that an impugned broadcast was from a station in Ontario, no finding of fact is required on that issue.
49The case before me is distinguishable, as here the Defendant has, through its own pleading and evidence, asserted that there was “no broadcast or rebroadcast” from a station in Ontario. As noted above, Geo asserts that because of a failure in the satellite link, Rogers did not transmit the program in Ontario. In their Notice of Motion they seek to amend their Statement of Defence to withdraw statements that “incorrectly” assert that the program was rebroadcast in Ontario, and add that the “proposed amendment raises a triable issue”: paras. 13-15. In that scenario, by the Defendant’s own admission, sections 5 and 6 of the LSA do not apply.
50Beyond that, whether this case involves a broadcast from a station in Ontario is a mixed factual and legal concept. The plaintiffs assert that people viewed the broadcast via YouTube or on T.V., using Jadoo box technology. It is premature at this stage to make a finding of fact on the essential question of whether those transmissions are a “broadcast from a station in Ontario”. The caselaw is clear that it is not appropriate to make such a determination on a summary judgment motion. Courts have repeatedly held that due to the technical language of “broadcast”, expert evidence is required for the Court to determine whether any technology meets the definition of “broadcast”. In Bahlieda v. Santa (2003), 2003 CanLII 2883 (ON CA), 68 O.R. (3d) 115 (C.A.), our Court of Appeal overturned a motions judge who on a summary judgment motion concluded that material placed on the internet via a website constituted a broadcast within the meaning of the LSA. At para. 6, the Court stated the following:
In our view, the motions judge erred in several respects in finding that there was no genuine issue for trial. Section 7 of the Act provides that subsection 5(1) and s. 6 apply only to “broadcasts from a station in Ontario”. She makes no findings of fact, including no finding as to the essential question of whether the broadcasts were from a station in Ontario. On that basis alone, in our view, the application should have been dismissed. In addition, however, we note that the experts’ opinions conflicted on a number of issues.... Summary judgment applications are not a substitute for trial and thus will seldom prove suitable for resolving conflicts in expert testimony particularly those involving difficult, complex policy issues with broad social ramifications.
51Similar concern was shown by our Court of Appeal in Shtaif v. Toronto Life Publishing Co. Ltd., 2013 ONCA 405, where Laskin J.A. concluded that a libel claim over an internet article was a genuine issue requiring a trial, and should not have been determined on a summary judgment motion. He stated the following at para. 20:
The Act was drafted to address alleged defamation in traditional print media and in radio and television broadcasting. It did not contemplate this era of emerging technology, especially the widespread use of the internet. The application of the Act to internet publications will have to come about by legislative amendment or through judicial interpretation of statutory language drafted in a far earlier era. [Emphasis added.]
52Numerous other decisions in recent years have taken the same cautionary approach: Caplan v. Atas, 2021 ONSC 670, at paras. 150-159; Kim v. Dongpo News, 2013 ONSC 4426, at para. 25; Levant v. Day, 2017 ONSC 5956, at paras. 45-48; Nanda v. McEwan, 2019 ONSC 125, at paras. 83-86, aff’d on other grounds, 2020 ONCA 431; Warman v. Grosvenor (2008), 2008 CanLII 57728 (ON SC), 92 O.R. (3d) 663 (S.C.), at paras. 44-49.
Issue #3: Is there evidence to support a damages claim?
53As noted above, the claim for damages is based on the alleged link between a) the defamatory broadcast and b) revenues lost from the cancellation of the musical concert portion of the Trade Fair. In particular, the plaintiffs claim that as a result of the allegations of visa fraud, the artists who were scheduled to appear at the concert were denied visas, thus forcing the cancellation of the musical concert and the refund of tickets already sold along with the inability to sell any further concert tickets.
54The Defendants claim that none of the alleged losses can be attributed to them. Keeping in mind that the cancelled visas were, according to the plaintiffs, the cause of their damages, the Defendant maintains that there is no evidence that the broadcast is in any way linked to the denial of the visas.
55A Plaintiff must adduce evidence of damages when responding to a summary judgment motion: Mahoney v. Sokoloff, 2015 ONCA 390, at para. 5. In particular, in a defamation action, the plaintiff must show a causal relationship between the publication and the losses suffered. The defamatory words must be a substantial factor in causing the harm: Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed. (Toronto: Thomson Reuters Canada, 2017) (loose-leaf updated 2021, release 2), ch 25.3(5).
56I accept that there is a legitimate question regarding the degree to which the broadcast resulted in the damages being sought. In particular: a) there is no evidence that persons with authority to grant the visas ever saw the broadcast, or even heard about it; b) even if such persons did learn of the broadcast, there is no direct evidence from such persons that that was the reason for declining the visas; c) the broadcast at one point suggests that the foreign office had already decided not to issue visas to the artists, even before the broadcast occurred, and d) there is some evidence of unrelated reasons for why the visas may have been denied, such as deficiencies within the visa applications themselves or delays by Immigration Canada in processing the applications.
57But several factors do support at least some linkage between the broadcast and the cancelled concert. In particular, both the booking agent in Ontario and the international promoter situated in Pakistan, each of whom has extensive experience in obtaining visas for visiting artists, deposed the following:
The process normally takes one to two weeks;
Neither had ever experienced any significant delays in their visa applications prior to the ones in issue in this lawsuit;
In this case the High Commission of Canada held back the passports for all 16 artists for a two-month period; and
The direct cause reason for the delay was the Khabarnak broadcast.
58Therefore, while I believe the Plaintiffs are vulnerable on this issue at trial, and may have difficulty establishing an appreciable amount of damages, I cannot conclude at this stage that they have failed to demonstrate any evidence of damages that are causally related to the broadcast.
59The Defendant has also alleged that any problems attributable to the Trade Fair were caused by events unrelated to the broadcast. It refers in particular to a separate lawsuit initiated by the Plaintiffs against Global Media Marketing (“GMM”), also arising out of the Trade Fair, in which the Plaintiffs allege they sustained damages due to GMM’s failure to supply them with backup generators during a power outage that occurred during the Fair. That incident obviously occurred after the Plaintiffs had cancelled the musical concert portion of the Fair. It is unclear on the evidence that any damages recovered by the Plaintiffs in that lawsuit duplicate losses allegedly sustained in this case; to the extent the Defendant wishes to press that point, it is a matter for trial.
Issue #4: Should the action be dismissed for delay?
60A court can dismiss an action for delay under Rule 24.01 if (i) “the default is intentional and contumelious”, or (ii) if the plaintiff has been responsible for a delay that is “inexcusable” and “gives rise to a substantial risk that a fair trial may not be possible”: New Solutions Financial Corporation v. Zilkey, 2011 ONSC 448, at para. 12.
61This action has been going on since 2012. It was supposed to have been set down for trial by the end of December 2017, pursuant to the order of Donohue J. dated December 23, 2016. Her Order also required that the matter be mediated before the end of December 2017.
62The mediation never occurred. And the case was not set down for trial until May 25, 2018, nearly five months after the date prescribed by Donohue J.
63The action was scheduled to be spoken to in Assignment Court in September 2018. However, given the defendant’s request to have this summary judgment motion heard, the parties consented to the action being struck from the trial list.
64I observe that one of the main grounds advanced by the Defendant in this motion, and the one which occupied the most hearing time – namely whether the broadcast is defamatory of the Plaintiffs – substantially overlaps with a motion brought by the Defendant in March 2013, wherein it asserted that the claim did not disclose any reasonable cause of action in defamation and therefore should be struck under Rule 21. Fitzpatrick J. determined that the impugned broadcast was capable of bearing a defamatory meaning and that the program referred to both Vivo Canadian and to Dil Muhammad. No appeal nor motion to vary was sought with respect to that ruling2, but the Defendant to a great extent resurrected the same arguments on this motion.
65However, the plaintiffs have also contributed to the delay. They are now on their fourth lawyer. Their second lawyer was keen to mediate but Geo refused at that point. The plaintiff’s third lawyer, it is alleged, failed to keep the plaintiffs abreast of the various timelines and what disclosure was required.
66All in all, it appears that both parties have contributed to the delay to date. To the extent the plaintiffs are responsible for delay, there is no indication it was deliberate or arrogant. Moreover, there is no evidence that the delay that has occurred results in any prejudice to the Defendant that cannot be compensated in costs.
Concluding Remarks
67For the reasons set out above, I have concluded that there is a genuine issue for trial as to whether:
The broadcast is defamatory of the Plaintiffs;
The action is barred by the LSA; and
The Defendant caused damages to the Plaintiffs.
68I have further concluded that any delay that has occurred can be addressed through costs, if necessary.
69Finally, on what appears to be an unopposed basis3, the title of proceeding shall be amended to indicate the defendant is Independent Media Corporation (Pvt.) Limited, carrying on business as Geo T.V.
70The soft spot in this litigation, in my view, is the amount of damages being sought. While I have concluded there is sufficient evidence on the record that the broadcast caused the Plaintiffs some degree of damage, the record to date suggests that the amounts being claimed are disproportionate. A reasoned compromise on that issue could resolve this case.
71This issue would strongly benefit from mediation. It is highly regrettable that the mediation previously ordered to proceed over three years ago did not take place. It was vacated, it appears, because the Defendants instead decided to bring this motion for summary judgment.
72At this stage, rather than forging on to a trial where the results are uncertain and the inherent delay and costs are considerable, I urge the parties to pursue a focused mediation to resolve the case, with each party bearing in mind that: a) it is vulnerable at trial, and b) this case has already consumed an enormous amount of limited court resources.
73As for this motion, I would urge the parties to agree upon costs, failing which they may provide any costs submissions in writing, to be limited to three pages, along with a Bill of Costs, within thirty days of the release of this Decision.
Baltman J.
Released: May 10, 2021
COURT FILE NO.: CV-12-0426
DATE: 20210510
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Vivo Canadian Inc. and Dil Muhammad
Plaintiffs/Responding Party
- and –
Geo TV
Defendant/Moving Party
DECISION ON MOTION FOR SUMMARY JUDGMENT
Baltman J.
Released: May 10, 2021