



COURT OF APPEAL FOR ONTARIO

CITATION: Midanik v. Powell, 2015 ONCA 375

DATE: 20150525

DOCKET: C59571

MacPherson, Cronk and Gillese JJ.A.

BETWEEN

David Midanik

Plaintiff (Appellant)

and

Betsy Powell and John
    Wiley & Sons Canada Limited

Defendants (Respondents)

William C. McDowell, for the appellant

Joseph Groia and Martin Mendelzon, for the respondent
    Betsy Powell

Richard G. Dearden and Anastasia Semenova, for the
    respondent John Wiley & Sons Canada Limited

Heard: May 22, 2015

On appeal from the judgment of Justice James M. Spence of
    the Superior Court of Justice, dated October 9, 2014.

ENDORSEMENT

[1]

The appellant David Midanik appeals from the judgment of Spence J. of
    the Superior Court of Justice dated October 9, 2014, dismissing Midaniks
    action against Betsy Powell, the respondent author, and John Wiley & Sons
    Canada Limited, the respondent publisher.

[2]

Midaniks defamation action was grounded in a book written by Powell and
    published by Wiley Co. The book was titled
Bad Seeds  The True Story of
    Torontos Galloway Boys Street Gang
. Midanik first appears at page 160 of
    the book, introduced as defence counsel for an accused murderer and member of
    the gang. At p. 161, Powell wrote:

He also, by his own admission, was someone who didnt work well
    with others. He said he identified with the character Tuco in director Sergio
    Leones 1966 Italian spaghetti western classic,
The Good, the Bad and the
    Ugly
. Midanik told me the loutish outlaw Tuco (the Ugly) said in the
    movie: I like big men because when they fall, they fall hard. (The actual
    line is: I like big fat men like you. When they fall they make more noise.)
    In any event, noise is what Midanik was known for making, prompting Dambrot, in
    one of his numerous pre-trial rulings, to refer to him, with considerable
    understatement, as no shrinking violet.

[3]

Midanik decided to sue the respondents in defamation for this passage.
    In his Amended Statement of Claim, he claimed:

7.
The plaintiff claims false and
    defamatory innuendo created by the defamatory words set out in paragraph 5,
    which taken in the context of the book as a whole
, in their natural and
    ordinary meaning were meant and were understood to mean any or all of the
    following, which are defamatory of the plaintiff:

(a)     the plaintiff is a hardened criminal;

(b)     the plaintiff is a murderer;

(c)     the plaintiff is a rapist;

(d)     the plaintiff is a thief;

(e)     the plaintiff is ugly;

(f)      the plaintiff is immoral;

(g)     the plaintiff is violent;

(h)     the plaintiff is not a good lawyer;

(i)      the plaintiff is dishonest;

(j)      the plaintiff is a psychopath; and

(k)     the plaintiff is sleazy.

[Emphasis in
    original.]

[4]

The respondents moved for summary judgment dismissing the action. The
    motion judge accepted their argument. He reasoned:

Because the Plaintiff has pleaded that the natural and ordinary
    meaning of the words in paragraph 5 is defamatory, the court cannot consider
    any extrinsic facts in determining whether the words are capable of the
    meanings pleaded at paragraph 7. It was submitted for the plaintiff that the
    reference in the words in paragraph 5 to Tuco and the movie The Good, the
    Bad and the Ugly effectively incorporated by reference into paragraph 5 the
    movie and its portrayal of the character Tuco in the movie.

However, a reasonable and fair reader of the words in paragraph
    5 would not consider that the references to Tuco and the movie had that effect.
    The statement in paragraph 5 is that the plaintiff self-identified with Tuco,
    who said he liked big men because they fell hard. The statement in paragraph 5
    that the words of the Plaintiff would not suggest that to the reasonable and
    fair-minded reader that the author was saying that the Plaintiff identified
    with Tuco in any other way. Indeed, a reasonable and fair minded reader would
    not think that the author was saying that the Plaintiff had said he identified
    with the offensive characteristics of Tuco in the movie, which are apparently
    the source of virtually all of the alleged meanings in paragraph 7.

[5]

The appellant appeals on four grounds.

[6]

First, the appellant contends that the motion judge erred in his
    defamation analysis. The appellant asserts that the impugned passage in the
    book is defamatory on its face, suggesting that Midanik is a criminal, immoral,
    and a violent person.

[7]

We disagree. In his pleading (para. 7), Midanik focussed on the words in
    the book in their natural and ordinary meaning. The relevant words tied to
    Midaniks approbation are Tacos words I like big men because when they fall,
    they fall hard. These words, read as a whole and in context, are far removed
    from the meaning suggested by Midanik in paragraph 7 of his Statement of Claim.
    As the motion judge said: The words complained of are not capable of bearing
    those defamatory meanings.

[8]

Second, the appellant asserts that the motion judge erred by not
    considering the true innuendo category of interpretation of allegedly defamatory
    statements. As expressed in his factum (para. 35): In this case, Mr. Midanik
    expressly pleaded a false innuendo but also pleaded all of the extrinsic facts
    and circumstances necessary for understanding the true innuendo.

[9]

We do not accept this submission. The motion judge did not need to
    consider this category because Midaniks counsel on the motion (not appellate
    counsel) specifically disclaimed reliance on it, even employing a heading in
    his motion factum saying The innuendos are false, not true.

[10]

Third,
    the appellant submits that the motion judge should have granted leave to amend his
    pleading rather than dismiss the action.

[11]

We
    disagree. This was a summary judgment motion, not a motion to strike pleadings.
    Moreover, at no time during the summary judgment proceeding did the appellant
    request leave to amend his Amended Statement of Claim to plead true innuendo
    and the extrinsic facts that would support the special meanings that he was a
    murderer, rapist, thief and the other extreme meanings pleaded in para. 7 of
    the Amended Statement of Claim.

[12]

Fourth,
    the appellant contends that the motion judge erred by awarding substantial
    indemnity costs to both respondents for both the motion and the action.

[13]

The
    motion judge reasoned: On the motion for summary judgment the defendants made
    Rule 49 offers. Costs on the substantial indemnity scale are warranted.

[14]

With
    respect, this passage reflects a misunderstanding of the Defendants Offer
    branch of Rule 49, which says nothing about substantial indemnity costs. Nor can
    the respondents bring themselves within the case law dealing with substantial
    indemnity costs for a successful defendant.

[15]

This
    conclusion requires an adjustment in the motion judges costs award. The result
    of the summary judgment motion was not surprising. In our view, this defamation
    action was ill-conceived. After reviewing Rules 49 and 57, the record for the
    action and the summary judgment motion, and the parties costs submissions and
    supporting documentation, we would award costs to the respondents of the action
    and motion on a partial indemnity basis as follows:

John Wiley &

Sons

Motion - $17,000

Action - $60,000

Betsy Powell

Motion - $17,000

Action - $7,500

[16]

The
    appeal is allowed in part, but only to change the costs awards as described
    above. In all other respects, the appeal is dismissed.

[17]

The
    parties agree that costs of the appeal should be awarded to the respondents in
    the amounts of $18,100 for John Wiley & Sons and $17,400 for Betsy Powell,
    inclusive of disbursements and applicable taxes.

J.C. MacPherson J.A.

E.A. Cronk J.A.

E.E. Gillese
    J.A.


