



COURT OF APPEAL FOR ONTARIO

CITATION: J.K. v. The Korea Times & Hankookilbo Ltd. (The
    Korea Times Daily), 2016 ONCA 375

DATE: 20160518

DOCKET: C60633

Laskin, Hourigan and Brown JJ.A.

BETWEEN

J.K. and S.K.

Plaintiffs

(Appellants)

and

The
    Korea Times & Hankookilbo Ltd. carrying on business as The

Korea
    Times Daily and carrying on business as Korean Entertainment

Weekly,
    Young Kwon Cho and Jay Jung

Defendants

(Respondents)

Peter Downard and Fida S. Hindi, for the appellants

Bruce McEachern, for the respondents

Heard:  April 15, 2016

On appeal from the order of Justice Darla A. Wilson of
    the Superior Court of Justice, dated June 2, 2015.

Hourigan J.A.:

A.

Overview

[1]

The appellants, J.K. and S.K., appeal the order of the motion judge
    dismissing their defamation claims for failure to comply with the notice
    provision contained in s. 5(1) of the
Libel and Slander Act
, R.S.O.
    1990, c. L.12.

[2]

For the reasons that follow, I would allow the appeal. In my view, the
    motion judge erred in law in her analysis of the sufficiency of the notice in
    issue, including by failing to consider the notice in the context of all of the
    surrounding circumstances.

[3]

A proper analysis of the notice makes plain that it conveyed to the
    respondents the essence of the matter complained of so that they could take
    appropriate steps to mitigate any damages, if they chose to do so. Therefore,
    it complied with the notice provision in the
Libel and Slander Act.

B.

Facts

[4]

The appellants are two young Korean women who came to Canada to study.
    They made complaints to the police that they were victims of repeated sexual and
    physical assaults and other crimes by members of their church group. The crimes
    were allegedly perpetrated by nine people over a twelve-month period.

[5]

As a consequence of the appellants allegations and the allegations of
    three other women, criminal charges were laid. The Korean press, both in Canada
    and Korea, reported on the charges and the subsequent court appearances.

[6]

On October 17, 2011, prior to the conclusion of the preliminary hearing,
    the Crown decided to withdraw the charges on the basis that there was no
    reasonable prospect of conviction.

[7]

The next day, the withdrawal of the charges was the subject of a
    front-page news article authored by the respondent, Jay Jung, entitled The
    Truth Has Finally Won in the
Korea Times Daily
,
a newspaper owned
    by the respondent The Korea Times & Hankookilbo Ltd. (Korea Times). In
    the article, the appellants were identified by name as complainants in the
    criminal proceedings. The article alleges that the appellants criminal
    complaint was a fabricated case.

[8]

In the same issue, the respondent editor Young Kwon Cho published an
    opinion column on the withdrawn charges entitled The Truth Came Out In This
    Way. Two days later, an article written by Mr. Jung about the case was
    published in
Korean Entertainment

Weekly
, a
    publication that is also owned by Korea Times, entitled Young Church Members
    Free From False Charges.

[9]

All three articles, which were written in the Korean language, contained
    statements that the charges against the accused were fabricated.

[10]

On November 22, 2011, the appellants counsel, J. David Sloan, wrote to the
Korea Times Daily
and
Korean Entertainment Weekly
. In that letter, counsel indicated that he
    represented the appellants and identified the articles in issue.  He alleged a
    breach of the publication ban made in the criminal proceedings because there
    were specific references identifying the appellants in the articles.

[11]

In the letter, counsel for the appellants also purported to provide
    notice of the appellants defamation claim:

Indeed, the entire tenor of the articles contained in your
    publications, which were at pages identified as A1, A3 and A4 on Tuesday,
    October 18, 2011 and in the October 21 edition of the Korean Times Daily as
    well as the October 21 edition of the Korean Entertainment Weekly of the Korean
    Times were totally improper as well as being defamatory and malicious in
    nature.

It is quite clear that the purpose behind the articles and the
    words printed was an attempt to harm my clients and their reputation.

As a result, notice is hereby given to you that an action will
    be brought for damages pursuant to the provisions of the
Libel and Slander
    Act
as a result of the defamation of these two ladies. In addition, there
    will be included a claim for punitive and aggravated damages by reason of the
    breach of the publication ban and the extreme agony and embarrassment that you have
    caused these two ladies by the publication of their names, contrary to the
Criminal Code of Canada
.

[12]

The respondents published no retraction, apology, or correction. The
    appellants issued their statement of claim seeking damages for defamation and for
    breach of the publication ban.

[13]

The respondents defended the action, pleading as follows, at para. 24:

LIMITATION PERIOD

The Defendants deny that the notice provided on behalf of the
    Plaintiffs pursuant to the
Libel and Slander Act
,
R.S.O. 1990,
    Chap. L 12, constituted proper notice of libel, as it did not sufficiently
    specify the matters complained of, given what was subsequently alleged in the
    Amended Statement of Claim. As such the claims in the Amended Statement of Claim
    which extend beyond the matters complained of in the said libel notice are
    statute-barred. The Defendants plead and rely upon s. 5(1) of the Act.

[14]

The case proceeded through discovery and pre-trial proceedings over the
    course of approximately three years. At examinations for discovery, counsel for
    the appellants asked about para. 24 of the respondents statement of defence.
    Counsel for the respondents replied that the notice should have particularized
    the allegedly libellous words complained of and that his position was that the
    notice was a breach of s. 5(1) of the
Libel and Slander Act
.

[15]

The action was set down for a three to four week jury trial to commence
    on June 1, 2015. On May 29, 2015, the respondents served a notice of motion to
    the trial judge, returnable June 1, 2015, seeking, among other things, an order
    dismissing the appellants defamation claims for failure to comply with s. 5(1)
    of the
Libel and Slander Act
.
Nowhere in the notice of motion
    is there any reference to the rule relied upon. Presumably, the respondents
    moved under Rule 21 of the
Rules of Civil Procedure
, R.R.O 1990, Reg.
    194.

[16]

The motion judge granted the motion and dismissed the appellants
    defamation claims. She held that the notice was deficient because it put the
    respondents in a position where they would have to guess at what statements
    were alleged to be defamatory.

c.      Analysis

(i)       Legal
    Principles

[17]

Subsection 5(1) of the
Libel and Slander Act
, provides:

Notice of action

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 plaintiffs 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.

[18]

If s. 5(1) is applicable, compliance is a condition precedent to
    bringing an action in libel such that failure to provide adequate notice will
    bar the action:
Grossman v. CFTO-T.V. Ltd. et al
. (1982), 39 O.R. (2d)
    498 (C.A.), at p. 501, leave to appeal refused (1983), 39 O.R. (2d) 498 (note)
    (S.C.C.);
Misir v. Toronto

Star Newspapers Ltd
.
(1997),
    105 O.A.C. 270 (Ont. C.A.), at p. 273.

[19]

A review of the authorities considering s. 5(1) of the
Libel and
    Slander Act
reveals the following principles:

i.   There is no prescribed form of
    notice. The notice must identify the matter complained of and need not
    describe the statement complained of or specify the exact words:
Grossman
,
    at pp. 501-502.

ii.     Notices need not contain the
    same level of particularity as a statement of claim:
Canadian Union of
    Postal Workers v. Quebecor Media Inc
., 2016 ONCA 206, at para. 5;
World
    Sikh Organization of Canada v. CBC/Radio Canada
, 2007 CarswellOnt 7649
    (S.C.), at para.12.

iii.            
     The adequacy of the notice must be assessed in the light                 of
    its purpose:
Shtaif v. Toronto Life Publishing Co
.,            2013
    ONCA 405, 366 D.L.R. (4th) 82
,

at para. 57.

iv.    The
    purpose of the notice is to call the publishers attention to the alleged
    libellous matter, so that the publisher may investigate and, if it deems it
    appropriate, publish a retraction, correction, or apology. This will permit the
    publisher to reduce or eliminate any damages:
Grossman
, at p. 501; see
    also
Janssen-Ortho Inc. v. Amgen Canada Inc
.
(2005), 256 D.L.R.
    (4th) 407 (Ont. C.A.), at para. 38;
Siddiqui v. Canadian Broadcasting Corp
.
    (2000), 50 O.R. (3d) 607 (C.A.), at para. 16, leave to appeal refused
    (2001), 271 N.R. 196 (note) (S.C.C.); and
Canadian Union of Postal Workers
,
    at para. 6.

v.   The
    appropriate test for the sufficiency of the notice is whether the notice fairly
    brings home to the publisher the matter complained of to permit the publisher
    to review the matter and decide how to respond:
Grossman
,
at pp. 504-505; see also
Siddiqui
,
    at para. 18;
Canadian Union of Postal Workers
,
at para. 6;

Gutowski v. Clayton
,
    2014 ONCA 921, 124 O.R. (3d) 185, at para. 36; and
Shtaif
at para. 58.

vi.   Courts
    can assess the adequacy of the notice in the light of all of the surrounding
    circumstances:
Grossman
, at p. 505; see e.g.
Pringle v. Channel 11
    Limited Partnership
, 2015 ONSC 2699, at paras. 20-22;
Boyer v. Toronto
    Life Publishing Co
.
(2000), 48 O.R. (3d) 383 (S.C.), at paras. 17-19.

vii.  A
    plaintiff may also benefit from the notice, because a timely correction,
    retraction, or apology may constitute a better remedy than damages:
Grossman
,
at p. 501.

viii. There
    is a preference in the case law to have matters determined on the merits,
    rather than terminating them on technical grounds: see
Grossman
, at p.
    505;
Telegram Printing Co. v. Knott
, [1917] 55 S.C.R. 631, 3 W.W.R.
    335, at p. 342;
Sentinel-Review Company Limited v. John R. Robinson
, [1928] S.C.R. 258, at pp. 262-63;
Pringle
, at paras. 33-34;

Boyer
, at para. 19.


[20]

In summary, in considering the adequacy of a notice, the court must have
    regard to the purpose of s. 5(1) and the circumstances of the particular case
    to determine whether it fairly alerts the publisher to the matter complained of,
    so that the publisher may take appropriate action.

[21]

In conducting this analysis, the court must be careful to ensure that
    the notice provision is not abused to shield publishers from legitimate
    defamation claims. Subsection 5(1) of the
Libel and Slander Act
was
    not enacted to reward publishers who are deliberately obtuse. Rather, it is
    designed to ensure that publishers have sufficient information to permit them
    to take appropriate steps to mitigate or to eliminate potential damages, if
    they choose to do so.

(ii)      The
    Principles Applied

[22]

In my view, the motion judge erred in her application of these legal
    principles in her analysis of the sufficiency of the notice. She repeatedly (at
    paras. 21 and 26-27 of her reasons) referred to the fact that the notice failed
    to specify the impugned phrases. There was, of course, no obligation on the
    part of the appellants to cite the specific statements complained of in the
    notice. All that had to be conveyed was the matter complained of.

[23]

The motion judge also noted, at para. 26, that the statement of claim
    provided more detail regarding the alleged defamatory statements. This is
    hardly surprising as, unlike the notice, the statement of claim in a libel
    action must specify the precise words that form the basis of the claim.

[24]

These errors taken alone are not necessarily fatal, but they reflect a narrow
    approach that is inconsistent with the case law, which shows a preference for cases
    to be determined on the merits and not dismissed for technical reasons where a
    publisher has the required information.

[25]

Compounding this error in the motion judges analytical approach is her failure
    to consider all of the surrounding circumstances to determine whether the
    notice brought home the matter complained of. Instead, her focus was primarily
    on the text of the notice compared to what was pleaded in the statement of
    claim.

[26]

The motion judge also erred in her
    application of this court's decision in
Siddiqui
.
At issue
    in
Siddiqui
was a broadcast that
    reported on an exclusive business arrangement between a travel company operated
    by the plaintiff and a charity. The content of the
Siddiqui

broadcast
    conveyed several distinct defamatory meanings, including that: (i) the travel
    agency was profiting unreasonably from what in effect is public money;  (ii)
    that the travel agency was a party to a rebate agreement with the charity pursuant
    to which the rebates were not recorded in the proper way, so that it was
    unknown where the money goes; (iii) that a kickback scheme may have been in
    place between the travel agency and the charity; and (iv) that the plaintiff
    and the travel agency had offered unauthorized discounts on Air Canada flights,
    had been cut off by Air Canada from booking seats on the airline, and were
    being sued by Air Canada.

[27]

The
Siddiqui

libel
    notice identified the date of the television broadcast, complained that the
    broadcast was slanderous of the plaintiff, and stated the plaintiffs intention
    to sue. This court concluded that a reasonable recipient of the notice could
    not know which of the distinct defamatory stings conveyed by the broadcast were
    complained of. In the present case, the libel notice was similarly vague.
    However, the context is much different because the three articles complained of
    in this case conveyed a single defamatory sting which was plain on the face of
    the articles, i.e. that the appellants fabricated the criminal charges against
    the nine accused. Therefore, this case is distinguishable from
Siddiqui
,
which
    involved multiple distinct defamatory stings. The motion judge erred in failing
    to take this context into account and in concluding that upon receipt of the
    notice the respondents could not know the essence of the case against them.

[28]

The cumulative effect of these errors is that the motion judge erred in
    law in her analysis of the sufficiency of the notice. This court is therefore obliged
    to consider the issue anew, namely, whether in all of the circumstances the
    notice fairly alerted Korea Times to the matter complained of, so that it could
    take appropriate action. I conclude that the notice, while hardly a model of
    clarity, met the requirements of s. 5(1) for the following reasons.

[29]

First, the articles are replete with references to the appellants having
    fabricated allegations of sexual assault and levelling false accusations
    against the accused in the criminal proceeding. The respondents were not in a
    position, as was suggested by the motion judge, of having to guess about the
    matter complained of. The nature of the alleged libel, being that the
    appellants falsified complaints to the police, is of the most serious nature.
    There is no need to resort to innuendo; the sting of the libel is plain on the
    face of the articles.

[30]

Second, it is significant that the respondents made only a limited objection
    to the notice in their statement of defence. They did not allege that the
    notice was invalid because it failed to specify the matter complained of.
    Instead, they complained that the statement of claim went beyond the matters
    complained of in the notice. Query how the notice can be both invalid for
    failing to specify the matter complained of and, at the same time, serve to
    define the limits of the matter complained of? The limited objection raised by
    the respondents speaks volumes about the true state of their understanding
    regarding the matter complained of in the notice.

[31]

Third, the timing of the motion leads to a reasonable inference that
    this was a position that the respondents decided to try on well into the
    litigation and that they were not genuinely confused about the nature of the
    matter complained of on receipt of the notice. Notably, their intention to
    bring the motion was not disclosed to the pre-trial judge. Respondents counsels
    explanation that he was waiting to obtain agreed upon translations of the
    articles before bringing the motion strikes me as hollow.

[32]

Fourth, in his opinion column, editor Young Kwon Cho acknowledged that
    in proclaiming the innocence of the accused, he recognized that his newspaper
    could be exposed to a defamation claim. It is not credible that, having averted
    to this possibility, the notice did not sufficiently bring home to him the
    matter complained of. Either the appellants were telling the truth or they were
    not. In reporting on the withdrawal of the charges in the manner they did, the
    respondents understood that they faced litigation exposure.

[33]

Fifth, the respondents primary submission in oral argument on appeal was
    that the articles properly construed are not defamatory of the appellants.
    Rather, they say that the real criticism was directed at a third party, who is
    alleged to have instigated and encouraged the false statements. That argument
    may well form the basis of a defence on the merits, but it adds little to the
    present analysis. The notice made clear that it was being sent on behalf of the
    appellants. It is difficult to fathom that the respondents would think that
    counsel for the appellants was writing to give notice of a potential claim
    related to statements made about a third party. It would have been clear to any
    publisher that the appellants were complaining that the articles stated that
    they had fabricated their allegations.

d.      Disposition

[34]

I would allow the appeal and set aside the order of the motion judge.
    The appellants, as the successful parties, are entitled to their costs of the
    appeal, which I would fix at $15,000, inclusive of fees, disbursements, and
    HST.

Released: May 18, 2016 JL

C.W.
    Hourigan J.A.

I
    agree John Laskin J.A.

I
    agree David Brown J.A.


