


COURT OF APPEAL FOR ONTARIO

CITATION: White v. White, 2017 ONCA 844

DATE: 20171102

DOCKET: C62544

MacFarland, Hourigan and Benotto JJ.A.

BETWEEN

Dalton White and Sonia White

Plaintiffs (Appellants)

and

Norman White, Karen White, Neville White (a.k.a.
    Junior) and Melville White

Respondents (Respondents)

Matthew Tubie, for the appellants

Rick Bickhram, for the respondents

Heard and released orally: October 26, 2017

On appeal from the order of Justice Conway of the Superior
    Court of Justice, dated July 21, 2016.

REASONS FOR DECISION

[1]

In our view the issue before the summary motion judge was a question of
    law:  whether describing the deceased as divorced in his death certificate
    could be defamatory of the appellant. The appellant was his former wife.
    Although divorce proceedings had been started, the divorce was not final at the
    time of his death. In our view it was perfectly appropriate for the motion
    judge to deal with this question on a summary judgment motion and we agree with
    her disposition that those words are not capable of being defamatory of the
    appellant.

[2]

The fresh evidence here, assuming its relevance, does not meet the
Palmer
    v. The Queen
, [1980] 1 S.C.R. 759 criteria in any event. These records
    could have been easily obtained with the exercise of due diligence at the time
    the motion was argued.

[3]

As to the second issue as to whether the matter ought to have been
    transferred from the estates court to the civil list, this is not a final order
    in any sense. And while this court has jurisdiction because of the defamation
    claim, it is a discretionary jurisdiction and here the decision of whether the
    estates court or the civil court should deal with these matters, is in our view
    better left to the Superior Court.

[4]

The appeal and the motion for fresh evidence are dismissed. Costs of the
    appeal and of the motion are awarded to the Respondent fixed in the sum of
    $12,000 inclusive of disbursements and HST.

J.
    MacFarland J.A.

C.W.
    Hourigan J.A.

M.L. Benotto
    J.A.


