



COURT OF APPEAL FOR ONTARIO

CITATION: Codina v. Canadian Broadcasting Corporation, 2020
    ONCA 116

DATE: 20200212

DOCKET: M51217 (C67684)

Roberts J.A. (Motions
    Judge)

BETWEEN

Angelina Codina

Plaintiff (Appellant/Moving Party)

and

The Canadian Broadcasting Corporation (CBC/Radio-Canada), CBC

News, CBC Radio, ICI Radio-Canada, Michelle Cheung, Leva Lucs,

Jean-Philippe Nadeau

Defendants (Respondents/Responding Parties)

Angelina M. Codina, acting in person

Paul Davis, appearing as
amicus curiae

Tae Mee Park, for the responding parties

Heard: January 29, 2020

REASONS
    FOR DECISION

[1]

The moving party moves for an extension of time to perfect her appeal
    from the October 17, 2019 dismissal of her defamation action following a
    successful s. 137.1 (Anti-SLAPP) motion brought by the responding
    parties and from the corresponding costs endorsement. The responding parties
    oppose the moving partys motion, submitting that she meets none of the
    well-established criteria for an extension of time.

[2]

These well-established criteria include:

i.

the continuing intention to appeal during the period required for
    perfection;

ii.

the length of and explanation for the delay;

iii.

the prejudice to the respondent; and

iv.

the merits of the appeal.

The overarching consideration is whether the justice of
    the case requires the extension. See
Issasi v. Rosenzweig
, 2011 ONCA
    112, 277 O.A.C. 391, at para. 4;
Auciello v. Mahadeo
, 2016 ONCA 414,
    at para. 12.

[3]

I agree with the responding parties position. I am not persuaded that
    the justice of the case warrants the requested extension.

[4]

While the moving party had the requisite intention to commence her
    appeal in a timely manner, her subsequent actions demonstrate a concerted
    effort to delay the perfection of the appeal and belie a continuing intention
    to appeal. First, she failed to file her motion to extend the time to perfect
    her appeal before the expiry of the prescribed deadline under r. 61.09(1) the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194 and the Registrars extended
    deadline. Second, instead of perfecting her appeal, she served a supplemental
    notice of appeal and notice of a constitutional question with her notice of
    motion for an extension of time, which raised new issues not before the motion
    judge. Third, she asked the responding parties to agree to a lengthy extension
    until May 30, 2020 without a valid explanation. The moving party requested a
    similar lengthy time extension on the motion (March 31, 2020).

[5]

The moving party has failed to provide an adequate explanation for the
    delay in perfecting her appeal. Her submissions that she had to care for her
    ill mother and deal with other legal proceedings in which she is involved are
    vague. She offers no concrete particulars explaining why she could not perfect
    her appeal within the statutory deadline or the Registrars extended deadline.
    If she had the time to prepare the detailed supplemental notice of appeal and
    notice of a constitutional question, as well as the voluminous motion record
    for this motion, it is not clear why she did not have time to perfect her
    appeal. Again, the moving partys actions denote an intention to delay the
    perfection of this appeal.

[6]

The responding parties are prejudiced by the moving partys delay. The
    responding parties had an expectation that the moving partys appeal from the
    granting of their s. 137.1 motion would be heard as soon as practicable after
    perfection, as required under s. 137.3 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43. This expectation is undermined by the moving partys
    delay. Instead of perfecting her appeal, the moving party created further delay
    by serving a supplemental notice of appeal and notice of a constitutional
    question, raising new issues that were not before the motion judge. The moving
    partys proposed expanded proceedings will engender not only significant delay
    but the prejudice of significant costs that the responding public corporation
    and the individual responding parties will likely never recover from the moving
    party, who claims impecuniosity and has failed to pay the myriad judgments
    against her. See
Nguyen

v. Economical Mutual Insurance Company
,
    2015 ONCA 828, 57 C.C.L.I. (5th) 275, at para. 16.

[7]

Turning to the merits of the moving partys appeal, including her notice
    of a constitutional question and costs appeal, I see little chance of success.
    A lack of merit alone suffices to deny the requested extension:
Enbridge
    Gas Distribution Inc. v. Froese
, 2013 ONCA 131, 114 O.R. (3d) 636, at
    para. 16;
Nguyen
, at para. 13.

[8]

Some further context on this point is necessary. The moving party
    commenced an action against the responding parties for general and punitive
    damages for defamation arising out of the responding parties publication of
    various news reports. The news reports concerned numerous civil and criminal
    proceedings brought against the moving party.

[9]

The responding parties successfully brought a motion to dismiss the
    moving partys action under s. 137.1 of the
Courts of Justice Act
. The
    moving party filed no evidence to support her allegations of harm and had not
    met her onus of proving that there were no valid defences to her claim. The
    motion judge determined that the news reports were in the public interest and
    the responding parties had valid defences to the action based on justification,
    fair comment, responsible communication, privilege, and the expiry of the
    relevant limitation periods. He also found that the moving partys damages, if
    any, were inconsequential. The motion judge granted costs on a full indemnity
    basis to the responding parties in the amount of $31,761.14. The moving party
    provided no costs submissions.

[10]

The moving partys attack on the motion judges decision primarily
    amounts to a request to rehear the s. 137.1 motion and does not articulate any
    arguable, reversible error. The motion judge correctly applied the test set out
    in
1704604 Ontario Ltd. v. Pointes Protection Association
, 2018 ONCA
    685, 142 O.R. (3d) 161, leave to appeal granted and appeal heard and reserved
    November 12, 2019, [2018] S.C.C.A. No. 467 and
Platnick v. Bent
, 2018
    ONCA 687, 426 D.L.R. (4th) 60, leave to appeal granted and appeal heard and
    reserved November 12, 2019 [2018] S.C.C.A. No. 466. His conclusions are
    well-grounded in the record before him and were open to him.

[11]

The moving party further contends that the motion judge erred by failing
    to address her argument that the February 27, 2018 article, containing a
    hyperlink to a previous article about criminal charges brought against her, was
    misleading and untrue because the charges had been withdrawn in 2015. She also
    submits the motion judge erred in finding that her damages would be minimal
    given that general damages, as the motion judge noted in his reasons, are
    presumed.

[12]

These submissions have little merit and would not change the outcome of
    the motion.

[13]

First, the motion judge expressly considered all the news reports,
    including the February 27, 2018 article with the hyperlink. The statement about
    the charges was not free-standing but a hyperlink to a previous article that
    the motion judge determined was subject to the defences of justification,
    responsible communication, and fair comment.

[14]

Second, in determining the s. 137.1 motion, the motion judge was
    required to decide under s. 137.1(4)(b) whether the moving partys alleged
    damages from the responding parties new reports outweighed the harm to the
    public interest in protecting the responding parties expression. The moving
    party filed no evidence concerning any harm. Notwithstanding the presumption of
    damages, in the absence of any evidence from the moving party, it was open to
    the motion judge to find that the moving partys damages from the publication
    of all the news reports, including the impugned February 27, 2018 article
    containing the hyperlink, were minimal and could not outweigh the public
    interest in the responding parties expression.

[15]

I see no merit in the moving partys notice of a constitutional question
    claiming that s. 137.1 violates her rights under ss. 2, 7 and 11 of the
Canadian
    Charter of Rights and Freedoms
. This court has already determined that no
    s. 7 interest is affected by this provision: see
Platnick
, at paras.
    118-126. Further, the moving partys contention that s. 137.1 curtails the
    right to the freedom of expression, as protected by s. 2(b) of the
Charter
,
    is belied by the stated purposes of the Anti-SLAPP legislation set down in s.
    137.1(1). The purposes stated in s. 137.1(1) leave no doubt that the
    legislation was intended to promote free expression on matters of public
    interest by discouraging and reducing the risk that litigation would be
    used to unduly limit such expression:
1704604 Ontario Ltd.
, at
    para. 37. The moving partys s. 11
Charter
claim equally lacks merit
    because she has failed to particularize how the rights of a person charged with
    a criminal or quasi criminal offence has any application to a civil defamation
    case between private litigants.

[16]

The moving partys costs appeal, included in her supplementary notice of
    appeal, is also devoid of merit. I see no reversible error in the motion
    judges costs award. In fixing costs, the motion judge properly exercised his
    discretion under s. 137.1(7) of the
Courts of Justice Act
and r. 57.01
    of the
Rules of Civil Procedure
and considered the relevant factors.

[17]

For these reasons, the motion is dismissed.

[18]

The responding parties are entitled to their partial indemnity costs from
    the moving party in the amount of $1,600, including disbursements and
    applicable taxes.

L.B. Roberts J.A.


