Boyer v. Toronto Life Publishing Co. (2000), 48 O.R. (3d) 392 (C.S. )

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  • Date: 2018

Boyer v. Toronto Life Publishing Co. Ltd. et al.*

[Indexed as: Boyer v. Toronto Life Publishing Co.]

 

48 O.R. (3d) 383

[2000] O.J. No. 945

Court File No. 97-CV-127416

 

Ontario Superior Court of Justice

Nordheimer J.

March 23, 2000

 

 

*Vous trouverez traduction franaise de la dcision ci-dessus 48 O.R. (3d) 392.

Torts — Libel and slander — Notice — Section 5(1) of Libel and Slander Act not requiring that notice be formally addressed to defendant — Letter complaining of alleged defamation addressed to publication — Letter sent to attention of one individual defendant and copied to two other individual defendants — Original and two copies delivered to offices of publication — Letters constituting valid notice — Service on all defendants may be effected through chief office of corporate defendant publisher if there is legitimate reason to believe that connection exists between corporate publisher and individual defendants — Delivery of notices to offices of publication constituted valid service of notices on individual defendants — Libel and Slander Act, R.S.O. 1990, c. L.12, s. 5(1).

The plaintiff complained that he was defamed by an article in a magazine. Counsel for the plaintiff sent a letter complaining about the article to the offices of the publication, addressed to the publication, to the attention of one of the individual defendants, and copied to the other two individual defendants. Three copies of the letter were sent by courier to the offices of the publication in three separate envelopes. The individual defendants brought a motion for an order dismissing the action against them on the basis that the plaintiff failed to comply with the notice requirements of s. 5(1) of the Libel and Slander Act.

Held, the motion should be dismissed.

There is nothing in the wording of s. 5(1) which says that notice must be “directed” to the defendant. In this case, each of the individual defendants was given notice in one fashion or another of the complaint. Notice was validly given under s. 5(1) of the Act despite the fact that the letter was not formally addressed to each of the individual defendants.

Section 5(1) sets out two options for service of the notice:

(1) in the same manner as a statement of claim; or (2) by delivering it to a grown-up person “at the chief office of the defendant”. Service on all defendants can be effected through the chief office of a corporate defendant publisher, assuming there is legitimate reason to believe that there is a connection between the corporate publisher and the individual defendants. The delivery of the notices to the offices of the publication in this case constituted valid service of the notices on the individual defendants.

Grossman v. CFTO-TV Ltd. (1982), 39 O.R. (2d) 498, 139 D.L.R. (3d) 618 (C.A.); Knott v. Telegram Printing Co. (1917), 55 S.C.R. 631, [1917] 3 W.W.R. 335, folld Reis Lighting Products & Services Ltd. v. Westcom Radio Group Ltd. (1996), 113 Man. R. (2d) 129, 131 W.A.C. 129, [1996] M.J. No. 526 (C.A.), not folld Other cases referred to Burwell v. London Free Press Printing Co. (1895), 27 O.R. 6 (Q.B.D.); Charlton v. Albertan Publishing Co., [1944] 2 W.W.R. 225 (Alta. S.C.); Elliott v. Freisen (1982), 37 O.R. (2d) 409, 136 D.L.R. (3d) 281 (H.C.J.), affd (1984), 45 O.R. (2d) 285, 1 O.A.C. 376, 6 D.L.R. (4th) 338, 42 C.P.C. 43 (C.A.), leave to appeal to S.C.C. refused (1984), 55 N.R. 274n; Emonts v. McKeever, [1992] O.J. No. 1467 (Gen. Div.); Hanover Nursing Home Ltd. v. London and District Service Workers’ Union, Local 220 (1999), 99 C.L.L.C. 220-046, [1999] O.J. No. 666 (Gen. Div.) Statutes referred to

Libel and Slander Act, R.S.O. 1990, c. L.12, ss. 5, 6, 8(1) Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 16.01, 16.03(5)

MOTION to dismiss an action as against the moving defendants.

C. Clifford Lax, Q.C., and Mitchell Flagg, for plaintiff. Howard W. Winkler and Odette S. Soriano, for defendants.

[1]  NORDHEIMER J.: — This motion raises the issue of what constitutes compliance with the notice requirements of s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12. The individual defendants here assert that the plaintiff failed to comply with s. 5(1) and therefore that the action should be dismissed against them. The trial of this action is set for April 10, 2000.

Background

[2]  The June 1997 edition of Toronto Life included an article entitled “Democracy Inc.” written by the defendant, Dewar. The plaintiff, in this action, claims that the article defamed him. On June 10, 1997, counsel for the plaintiff wrote a letter complaining about the article. The letter was addressed as follows:

Toronto Life Publishing Co. Ltd. 59 Front Street East Toronto, Ontario M5E 1B3

Attention: Mr. William Duron

The letter also shows, in the bottom left-hand corner, the following:

c.c. John Macfarlane Elaine Dewar The question which is central to this motion is whether this letter constituted the notice required by s. 5(1) of the Act.

[3]  According to the affidavit of service, three copies of the letter were sent by courier to the offices of Toronto Life. They were in three separate envelopes. One was addressed, as noted above, to Toronto Life Publishing Co. Ltd. — Attention: Mr. William Duron. The other two envelopes were addressed respectively to John Macfarlane and Elaine Dewar — again at the address of Toronto Life.

[4]  It is acknowledged that the letters were received at the offices of Toronto Life. On June 12, 1997, counsel for Toronto Life wrote to counsel for the plaintiff and acknowledged receipt of the letter on behalf of Toronto Life. In the letter, counsel for Toronto Life stated that Toronto Life was not prepared to publish an apology to the plaintiff but it was prepared, in exchange for a full and final release, to publish a clarification, the particulars of which were set out in the letter. That offer was not accepted by the plaintiff.

[5]  The defendants contend that the June 10 letter did not constitute notice, under s. 5(1), to any of the defendants other than Toronto Life. They contend that the letter was only addressed to Toronto Life and could therefore only constitute notice to Toronto Life. With respect to the individual defendants, they say that putting the letter to the attention of Duron is insufficient to constitute notice to him and that showing copies of the letter to Macfarlane and Dewar is insufficient to constitute notice to them. As I understand the defendants’ position, they assert that the letter had to be “directed to” each of the defendants and that the June 10 letter as drafted does not fulfill that requirement, except with respect to Toronto Life.

[6]  Section 5(1) of the Act states:

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.

[7]  As I read s. 5(1), it contains four separate requirements. They are:

(a)compliance with a time limit of six weeks;

(b)  the defendant must be given notice in writing;

(c)  the notice must specify the matter complained of; and

(d)the notice must be served in the same manner as a statement of claim or delivered to a grown-up person at the chief office of the defendant.

[8]  There is no form of notice prescribed by the Act. This fact was noted by our Court of Appeal in Grossman v. CFTO-TV Ltd. (1982), 39 O.R. (2d) 498, 139 D.L.R. (3d) 618. In the course of that decision, Cory J.A. reached a number of conclusions regarding s. 5(1), some of which are directly applicable to the motion that is before me. First, at p. 501 O.R., p. 621 D.L.R., he said:

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, a 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. Later, at pp. 504-05 O.R., p. 625 D.L.R., Cory J.A. said:

Clearly, the notice provisions contained in the Libel and Slander Act are mandatory and if notice is not given then a libel action cannot be maintained.

. . . . .

An appropriate test to determine whether the notice complaining of a television broadcast is adequate might be as follows: Does the notice identify the plaintiff and fairly bring home to the publisher the matter complained of? Since the Act prescribes no particular form, the court in answering this question can consider all the relevant circumstances.

[9]  The issue of what constitutes proper notice has been considered in a number of decisions, extending back more than a century. In Burwell v. London Free Press Printing Co. (1895), 27 O.R. 6 (Q.B.D.), the solicitors for Mr. Burwell had sent a letter addressed to the “Editor of The London Free Press” complaining of an article that had appeared in that newspaper. An issue was raised as to whether the letter constituted notice to the newspaper or only to the editor. Chief Justice Meredith concluded that it only constituted notice to the editor and not to the newspaper. Unfortunately for the plaintiff in that case, only the newspaper had been named as a defendant in the action.

[10]  Some considerable doubt as to the correctness of that decision is apparent from the subsequent decision of the Supreme Court of Canada in Knott v. Telegram Printing Co. (1917), 55 S.C.R. 631, [1917] 3 W.W.R. 335. In that case, one of the issues raised was whether a notice given to “The Winnipeg Telegram Printing Company, Limited” instead of “The Telegram Printing Company, Limited” was sufficient compliance with s. 5 of the Libel Act of Manitoba. In dealing with this issue, Mr. Justice Anglin (with the Chief Justice concurring) referred to the decision in Burwell and in another Ontario case and stated, at p. 342: These appear to have been narrow decisions and if they were in point I should have had to consider them very carefully before adopting the principle on which they proceed. He then continued to comment on the issue generally in rather strong terms as follows: But in the present case the notice was properly served. It reached the defendant company and there is not the slightest room for question or doubt that it knew that it was intended for it. It was given the “opportunity to publish a full apology” which it is the purpose of the statute to secure. The objection is as trivial as it is technical and to give effect to it would be a travesty of justice.

[11]  In a separate concurring judgment in that case, Mr. Justice Idington also commented on the notice issue and said, at p. 339: The notice served was ample compliance with the statute and I am not inclined to follow some of the cases cited to us which do not bind us. The statute does not require anything in a particular form save that the notice must be in writing. Impliedly the statute requires, of course, that the giving of it must be understood by those served, and common sense would say the notice in question was well understood by him served.

Mr. Justice Idington does not identify the cases which he was not inclined to follow but it is reasonable to assume, in light of the observations of Mr. Justice Anglin, that the Burwell decision was one of them.

[12]  A similar conclusion was reached by the Supreme Court of Alberta in Charlton v. Albertan Publishing Co., [1944] 2 W.W.R. 225. In that case, the solicitor for Mr. Charlton had sent a letter addressed to, “The Manager, Albertan Publishing Company Ltd.” complaining about an article that had appeared in The Albertan, a newspaper. The defendant argued that the letter did not constitute notice to the company because it was addressed to the manager. Mr. Justice Shepherd rejected that contention. He referred, at p. 228, to the objection being “altogether too technical an objection to be given serious consideration”.

[13]  Further, the same result occurred in Elliott v. Freisen (1982), 37 O.R. (2d) 409 (H.C.J.), affirmed (1984), 45 O.R. (2d) 285 (C.A.), leave to appeal to the Supreme Court of Canada refused May 3, 1984. The notice in that case had been addressed to, “The Sudbury Star, Canadian Newspapers Company Limited, attention: John P. Freisen.” Mr. Justice Steele held, at p. 414: “Clearly this was notice to the defendants, CNCL and Freisen.”

[14]  However, in a fairly recent decision, Reis Lighting Products & Services Ltd. v. Westcom Radio Group Ltd., [1996] M.J. No. 526, 113 Man. R. (2d) 129 (C.A.), the Manitoba Court of Appeal reached the opposite conclusion. I will deal with this case in some detail because the defendants placed great reliance on it. In Reis, the plaintiff complained that it had been defamed in a radio broadcast. A letter of complaint had been sent by registered mail to the host of the radio show, McGinnis, in care of the radio station at the station’s Winnipeg address. McGinnis received the letter. A similar letter was addressed to Western Broadcasting Company Ltd. marked to the attention of Ralph Warrington, the president and general manager of the radio station. The letter was received by Warrington. The plaintiff commenced an action against McGinnis, Warrington, WIC Western International Communications Ltd. and Westcom Radio Group Ltd. Warrington, WIC and Westcom objected that no notice had been given to them under the Defamation Act of Manitoba, R.S.M. 1987, c. D20. McGinnis objected that, while he had received a notice, it had not been served on him as required by s. 14 of the Defamation Act which required service of the notice in the same manner as a statement of claim.

[15]  Mr. Justice Huband, speaking for the Manitoba Court of Appeal, concluded that the lower court decisions striking out the action against WIC and Warrington were correct because no notice had been addressed to them. Mr. Justice Huband also concluded that the lower court decisions were correct in refusing to strike out the claim against McGinnis. He held that the failure to serve the notice personally (as would be required for a statement of claim) as opposed to sending it by registered mail was “at most an irregularity”. Lastly, Huband J.A. held that he was bound by the Supreme Court of Canada’s decision in Knott v. Telegram Printing Co., supra, and therefore concluded that the notice to Western Broadcasting Company Ltd. was valid notice to Westcom Radio Group Ltd. It is not clear from the decision what relationship, if any, there was between Western Broadcasting Company Ltd. and Westcom Radio Group Ltd. although it appears that Huband J.A. treated the reference to Western Broadcastin g Company Ltd. as a misnomer for Westcom Radio Group Ltd. In any event, in reaching his conclusion, Huband J.A. placed great reliance on the fact that the notice had come to the attention of Westcom Radio Group Ltd. and therefore the purpose of the section of the Act had been fulfilled.

[16]  I must say that I do not understand the distinction that results from the Manitoba Court of Appeal’s decision between the approach taken to the service of the notice by registered mail on McGinnis being termed an “irregularity” and the approach taken to the letter having been addressed to Western Broadcasting to the attention of Harrington (and being received by him) as being an absolute failure to give notice to Harrington. It seems to me that those two issues are either both fairly characterized as irregularities or they are both fatal failures to comply with the applicable section of the Act but I do not see how one can draw a qualitative difference between the two.

[17]  I now return to a consideration of the circumstances of the case that is before me. The essence of the defendant’s position is that the June 10 letter was not “directed to” the individual defendants and therefore that it does not comply with s. 5(1) of the Act. In essence, the individual defendants say that they are in virtually the same position as Mr. Harrington was in Reis and consistent with that decision, I should find that they were not given notice as required by s. 5(1) and the action against them should be dismissed.

[18]  I do not agree. In my view one has to return to the wording of the section to properly determine this matter. Section 5(1) requires only that the defendant be given “notice in writing”. As observed by the Court of Appeal in Grossman and by the Supreme Court of Canada in Knott, there is no form of notice required or provided by the Act. There is also nothing in the wording of s. 5(1) which says that the notice must be “directed” to the defendant. It simply requires that notice be given. Here, each of the individual defendants was given notice in one fashion or another of the plaintiff’s complaint. Macfarlane and Dewar received their own copies of the letter. Duron received the original of the letter. None of the defendants have suggested that they did not receive notice or were unaware of the complaint of the plaintiff. It is also clear that the purpose of the section, which all of the authorities seem to agree is to provide the opportunity to correct, retract or apologize, was satis fied since a correction or clarification was offered by the solicitors for Toronto Life.

[19]  In these circumstances, to hold that notice was not given because the letter was not formally addressed to each of the individual defendants would give effect to the same type of technical objection of Mr. Justice Anglin complained of in Knott.

[20]  I recognize that my conclusion is in conflict with the decision in Reis but I must say that I do not see how the result in Reis can be reconciled with the obvious thrust of the Supreme Court of Canada’s decision in Knott. I am also not sure that the decision in Reis sits comfortably with the approach taken by our Court of Appeal in Grossman. To the degree that they deal with this issue, I am, of course, bound by the decisions in Knott and Grossman but not by the decision in Reis. In the end result, however, my view of this matter may be adequately summarized by paraphrasing the observation of Anglin J. in Knott: The notices reached the defendants and there is not the slightest room for question or doubt that they knew that those notices were intended for them.

[21]  There is also the secondary or subsidiary issue as to whether, assuming the notices are otherwise proper, service of those notices by delivering them to the offices of Toronto Life is sufficient compliance with s. 5(1) regarding the individual defendants. The section, as I have already mentioned, sets out two options for service of the notice: (1) in the same manner as a statement of claim or (2) by delivering it to a grown-up person “at the chief office of the defendant”. The wording of that latter provision causes some difficulty because it appears to assume that the defendant or defendants will always be corporations with chief offices. This difficulty would be of little practical impact if it was only the publisher to whom notice had to be given since the publisher of a newspaper or broadcast would normally be a corporation. However, all of the defendants must receive the notice and, of course, the other defendants involved in an alleged libel will usually be individuals such as editors, writers, researchers, etc. The requirement that all defendants must receive the notice is established by R.E. Knowles Jr. v. 20th Century Publishing Co., [1939] O.W.N. 403 (H.C.J.) and Elliott v. Freisen, supra and has been recently reiterated in Hanover Nursing Home Ltd. v. London and District Service Workers’ Union, Local 220, [1999] O.J. No. 666, 99 C.L.L.C. 220-046 (Gen. Div.) and Emonts v. McKeever, [1992] O.J. No. 1467 (Gen. Div.)

[22]  It appears to me that there are two possible interpretations of this provision in s. 5(1). One is that only corporate defendants can be served through the second option. The other is that service on all defendants can be effected through the chief office of a corporate defendant publisher assuming there is legitimate reason to believe that there is a connection between the corporate publisher and the individual defendants. The first interpretation takes the words used literally but results in an extremely technical, and I would say unfair, result. If all of the defendants are entitled to “equal access to the prescriptive shield offered by these sections”, as stated by Goodearle, J. in Emonts v. McKeever, supra, why should those defendants also not all be subject to both manners of service?

[23]  The second interpretation of the section would result in the equal application of the section both in terms of its benefits and its obligations. It is also consistent with the effect of s. 8(1) of the Act which states: 8(1) No defendant in an action for a libel in a newspaper is entitled to the benefit of sections 5 and 6 unless the names of the proprietor and publisher and the address of publication are stated either at the head of the editorials or on the front page of the newspaper. There does not seem to be any reason to deny all defendants the protection of ss. 5 and 6 of the Act from the failure of the publisher and proprietor to post their address unless it was intended that the address is one which might be used to give the required notice to all defendants.

[24]  The second interpretation also accords with the reality that the individual defendants will usually be employees of the corporate defendant and therefore within the corporate defendant’s control. If a given defendant is not an employee, for example, it is suggested here that the defendant Dewar was a freelancer and not an employee, this interpretation still recognizes that the corporate defendant is more likely to know where that defendant is and be in a position to contact him or her much more readily than the plaintiff would be. Given that the purpose of the section is to provide the opportunity to correct, retract or apologize, it would seem likely that the publisher would want to contact the author and others involved in the matter complained of before making that decision. Therefore, requiring the corporate publisher to be the conduit for the notices does not appear to place any undue burden on it, coupled with a requirement that there must be a legitimate reason to believe that there is a connect ion between the corporate publisher and the other defendants. If one of the individual defendants was simply a person who was quoted in the article or broadcast and who had no connection to the corporate publisher then, under this interpretation, the second option for service would not be available.

[25]  Further, this interpretation of the second option for service is not materially different in its result than the Rules of Civil Procedure provide regarding service of a statement of claim. Under rule 16.01, a statement of claim may be served by an alternative to personal service. One of those alternatives regarding individual defendants, under rule 16.03(5), is to permit service by leaving the claim with an apparently adult person at the individual’s residence and then mailing a copy to the same address. Permitting service of the notice under s. 5(1) of the Act by leaving it with an adult person at the offices of the publisher leads to a similar result.

[26]  In the particular facts of this case, therefore, I conclude that the delivery of the notices to the offices of Toronto Life constituted valid service of the notices on the individual defendants.

[27]  For the above reasons, I conclude that the notices in question complied with s. 5(1) of the Libel and Slander Act and were properly served in accordance with that section. The motion is therefore dismissed with costs. Unless there are matters that counsel wish to bring to my attention (in which case they may do so through brief written submissions within 10 days of the release of these reasons), I would order that the costs of the motion be paid by the individual defendants to the plaintiff forthwith and fixed in the sum of $2,500.

Motion dismissed.