





CITATION:
Macdonald v. Canadian
          Broadcasting Corporation, 2011 ONCA 652




DATE:  20111019



DOCKET: C50795



COURT OF APPEAL FOR ONTARIO



Winkler C.J.O., Sharpe J.A. and Cunningham A.C.J. (
ad hoc
)



BETWEEN



Ian Verner Macdonald



Plaintiff (Appellant)



and



Canadian Broadcasting Corporation and Warren Kinsella



Defendants (Respondents)



Douglas H. Christie, for the plaintiff (appellant)



Scott C. Hutchison and Brennagh Smith, for the defendants (respondents)



Heard and orally released:
September 30,
          2011



On appeal from the judgment of Justice Métivier of the Superior
          Court of Justice dated June 25, 2009.



ENDORSEMENT



[1]

We are of the view that the trial judge was correct in concluding the
    action was statute barred.  Section 5(1) of the
Libel and Slander Act
provides that a plaintiff provide notice within six weeks after an alleged
    libel has come to the plaintiffs attention and the onus lies with the
    plaintiff to show compliance.  Here, although the appellant did not see the
    actual broadcast of April 19, 1996 until the end of August or perhaps early
    September, it is sufficient that the appellant could reasonably have known of
    the libel.  Actual knowledge does not have to be demonstrated.

[2]

In the present case, the appellant, according to the evidence, was, and
    certainly should have been, reasonably certain about what the respondent,
    Kinsella, probably said based upon their history of public opposition.  When,
    in May 1996, the appellant learned from Paul Frohm, who ultimately provided the
    tape, the gist of what had been said and that the broadcast had taken place, he
    was under a duty to act diligently to ascertain the relevant facts.  He did not
    and offered no explanation as the trial judge found.  We agree.  The onus was
    not discharged and his claim was properly dismissed.  The trial judge, on the
    evidence, was justified in finding that the appellant was conveniently vague on
    key issues and in drawing an adverse inference concerning his lack of
    diligence.  Without question, the appellant ought to have known far in advance
    at the time he acquired actual knowledge.  The evidence clearly demonstrates
    the appellants lack of diligence in the summer of 1996.  Because of our
    conclusion with respect to the issue of notice, it is unnecessary for us to
    deal with the other issues raised.

[3]

The appeal is dismissed.

[4]

Costs will be at $25,000, all inclusive.

W. Winkler C.J.O.

Robert Sharpe J.A.

Cunningham A.C.J.
ad
    hoc



