



COURT OF APPEAL FOR ONTARIO

CITATION: Canadian Union of Postal Workers v. Quebecor Media
    Inc.,

2016 ONCA 206

DATE: 201603014

DOCKET: C60867

LaForme, Pardu and Roberts JJ.A.

BETWEEN

Canadian Union of Postal Workers

Appellant

and

Quebecor Media Inc., Sun Media Corporation, TVA
    Group Inc., Jerry Agar and Avi Benlolo

Respondents

David Migicovsky and Karin M. Pagé, for the appellant

Tycho Manson, for the respondents Quebecor Media Inc.,
    Sun Media Corporation, TVA Group Inc., and Jerry Agar

Stephen Cavanagh, for the respondent Avi Benlolo

Heard: March 7, 2016

On appeal from the order of Justice Robert Pelletier of
    the Superior Court of Justice, dated July 15, 2015, with reasons reported at
    2015 ONSC 4511.

Endorsement

[1]

The appellant appeals the
    dismissal of its action following the respondents Rule 21 motion. The motion
    judge held that the appellants notices did not comply with the requirements
    under s. 5(1) of the
Libel and Slander Act
, R.S.O. 1990, c. L.12 (
LSA
), because, while they identified the matters complained
    of by the appellant, they failed to sufficiently specify those matters.

[2]

The parties agree that the
    standard of review of a motion judges order under r. 21.01(1)(a) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194,
    is one of correctness, as these orders determine questions of law. As a result,
    no deference is owed on this appeal to the motion judges analysis and
    decision.

[3]

The appellant submits that the
    motion judge erred in holding that its s. 5(1) notices were deficient and
    argues that its notices fulfilled the requirement under s. 5(1) of the
LSA
that the notices specify the matter complained of by
    the appellant.

[4]

We agree with the appellants
    submissions.

[5]

It is well-established that s.
    5(1) notices under the
LSA
do
    not have to be in a specific form or reproduce word for word the statements
    alleged to be defamatory:
Grossman v. CFTO-TV Ltd.
(1982), 39 O.R. (2d) 49839 (C.A.), at pp. 501, 503,
    leave to appeal refused [1983] S.C.C.A. No. 463;
Gutowski v. Clayton
, 2014 ONCA 921, 124 O.R. (3d) 185, at para. 36. Further,
    it is not necessary that s. 5(1) notices contain the same level of
    particularity as required in a statement of claim:
World Sikh
    Organization of Canada v. CBC/Radio Canada
,
    2007 CarswellOnt 7649 (S.C.), at para. 12.

[6]

Rather, the matters complained of
    in a s. 5(1) notice have to be sufficiently specified so that the notice brings
    home to the defendant the essence of the matter complained of by the plaintiff
    and gives the defendant the opportunity to analyze the alleged defamation and then
    decide whether it calls for a correction, apology or retraction:
Grossman
, at pp. 504-5;
Siddiqui v. Canadian
    Broadcasting Corporation
(2000), 50 O.R.
    (3d) 607 (C.A.), at para. 18, leave to appeal refused [2000] S.C.C.A. No. 664;
Shtaif
    v. Toronto Life Publishing Co. Ltd.
, 2013
    ONCA 405, 306 O.A.C. 155, at paras. 57-58.

[7]

The appellants notices achieved
    all of those objectives. The broadcast and article in issue were short. Given
    the contents of the notices, there cannot have been any confusion as to the
    matters complained of by the appellant.

[8]

The notices clearly specified that
    the matters complained of were the statements and inferences from the July 24,
    2014 internet broadcast and the July 28, 2014 article in the Toronto Sun print
    newspaper and internet blog, namely that the appellant and its members are
    supportive of and partners with terrorist organizations and hate groups, and
    that they support Hamas, a terrorist organization, and the genocide of the Jewish
    people.

[9]

In particular, the appellants notices
    reproduced and tracked actual portions of the allegedly defamatory words in the
    broadcast and the article, and closely paraphrased their essence and allegedly defamatory
    inferences. Attached to the appellants notices were proposed draft letters of
    retraction and apology, which repeated the wording of the allegedly defamatory
    matters complained of in the appellants notices.

[10]

With respect to the broadcast,
    the respondent Benlolo submits that the appellants s. 5(1) notice was
    invalidated by the inclusion of the retraction notice and draft apology because
    he (Benlolo) could not bring about the retraction demanded by the appellant, as
    he had no control over the media defendants.

[11]

We do not accept this submission. Section
    5(1) of the
LSA
stipulates only that
    notice of the matter complained of be given. While the purpose of the notice is,
    as this court noted in
Grossman
,
Siddiqui
and
Shtaif
, to allow the defendant to know the essence of the
    plaintiffs complaint and decide how to respond, there is no requirement that
    the plaintiff suggest a possible resolution or that the defendant accept any
    proposal that the plaintiff may offer.

[12]

The fact that the respondent
    Benlolo could not carry out the retraction as requested by the appellant did
    not take away his opportunity to mitigate the appellants damages by
    apologizing or taking other steps. The respondent Benlolo is in no different
    situation from the respondents in
Janssen-Ortho Inc. v. Amgen Canada
    Inc.
(2005), 256 D.L.R. (4th) 407 (Ont.
    C.A.). In that case, at para. 38, this court observed that although those
    respondents would not have been in a position to make the decision as to
    whether or not a retraction would be printed or an apology made, they could
    take other steps.

[13]

With respect to the article, the
    other respondents argue that the appellant failed to include in its notice the additional
    allegations pleaded in the statement of claim about the form and placement of
    the article. As a result, they contend, the appellants notice is deficient.

[14]

We disagree. In the present case,
    the appellants notice specified the matter complained of in the article, both
    with respect to the statements in and the inferences arising from the article
    in its entirety, and its authors, date and manner of publication. As such, the
    notice met the requirements of s. 5(1) of the
LSA
. Any further particularity was required in the
    appellants statement of claim, but not in its s. 5(1) notice, which, as
    already noted, does not have to take any particular form.

[15]

Finally, the respondent Benlolo did
    not proceed with his cross-appeal concerning the article. He seeks, however, to
    raise in response to the appeal an additional argument raised in support of his
    cross-appeal of paragraph 2 of the motion judges order, namely that the
    appellant, as an unincorporated trade union, has no capacity to bring an action
    in defamation.

[16]

As the motion judge did not decide
    this issue, paragraph 2 of his order was an interlocutory order. As a result, the
    respondent Benlolo was required to obtain leave to appeal to the Divisional
    Court under r. 62.02(1) of the
Rules of Civil Procedure
before he could seek to have this argument heard at
    the same time as the appellants appeal:
Royal Bank of Canada v.
    Société Générale (Canada)
, 2007 ONCA 302, 31
    B.L.R. (4th) 83, at para. 5. He did not do so.

[17]

It is therefore not necessary for
    this court to decide whether an unincorporated trade union has standing to
    bring an action in defamation. In any event, as the motion judge determined,
    that issue is best left for trial on a full record.

Disposition

[18]

Accordingly, the appeal is allowed
    and paragraph 1 of the motion judges order dismissing the appellants action
    is set aside.

[19]

The motion judges costs orders
    are also set aside. The appellant is entitled to its partial indemnity costs: for
    the motion, the amount of $10,000.00 and for the appeal, the amount of
    $25,000.00, all inclusive, and jointly and severally payable by the defendants.


H.S. LaForme J.A.

G. Pardu J.A.

L.B. Roberts J.A.


