Court File No.

C62056

COURT OF APPEAL FOR ONTARIO

BETWEEN:

DARREN JOHN
Plaintiff
(Appellant)

- and -

ALEX BALLINGALL, TORONTO STAR NEWSPAPERS LTD and TORSTAR

CORPORATION
Defendants
(Respondents)

FACTUM OF THE DEFENDANTS I RESPONDENTS

February 9, 2017 BLAKE, CASSELS & GRAYDON LLP

Barristers & Solicitors
199 Bay Street
Suite 4000, Commerce Court West
Toronto ON M5L 1A9

Iris Fischer LSUC #52762M

Tel: 416-863-2408
iris.fischer@blakes.com

Kaley Pulfer LSUC #584 l 3T

Tel: 416-863-2756
Fax: 416-863-2653
kaley.pulfer@ blakes.com

Lawyers for the Defendants (Respondents)

23072975. 2
 2

TO: MTZLAW
401 Bay Street, Suite 1600
Toronto ON M5H 2Y4

Maanit Zemel LSUC #51603U

Tel: 416-937-9321
Fax: 647-795-2645
mzemel@casllaw.ca

OMAR HA-REDEYE PROFESSIONAL CORPORATION

526 Richmond St. East
Toronto ON M5A I R3

Omar Ha-Redeye LSUC #60456R

Tel: 416-546-7412
Fax: 416-546-7412
omar@ fleetstreetlaw.com

Lawyers (co-counsel) for the Plaintiff (Appellant)

23072975.2
 Court File No. C62056

COURT OF APPEAL FOR ONT ARIO

B E TWEEN:

DARREN JOHN
Plaintiff
(Appellant)

- and -

ALEX BALLINGALL, TORONTO STAR NEWSPAPERS LTD and TORSTAR

CORPORATION
Defendants
(Respondents)

TABLE OF CONTENTS

Page No.

PART I - OVERVIEW ................................................................................................................. 1

PART II - SUMMARY OF FACTS ............................................................................................ 3
PART III - POSITION ON ISSUES ........................................................................................... 5
PART IV - LAW AND ARGUMENT ......................................................................................... 6
A. The Motions Judge Properly Concluded that the LSA Should be Interpreted to
Apply to Online Newspaper Articles ............................................................................... 6
Tl1e Purpose of tlie Act....................................................................................................... 6
Tlte Star is a "Newspaper" in Print and Online ............................................................... 8
Section 7 of the LSA does Not Change the Correct Interpretation of "Newspaper" .... 12
B. The Motions Judge Correctly Applied the Jurisprudence to Conclude that the LSA
Applies .............................................................................................................................. 14
C. Section 8 of the LSA is Not at Issue on this Appeal ..................................................... 17
D. The Appellant's Argument Regarding Presumption of Publication Should be
Rejected ........................................................................................................................... . 19
E. The Limitation Periods Began to Run When the Appellant Became Aware of the
Online Article .................................................................................................................. 20
F. The Motions Judge was Entitled to Consider the December 2013 Report ................ 23

23072975.2
 2

G. This Case was Properly Dealt with on a Rule 21.01 Motion ....................................... 24
The Application of a Limitation Period is Properly Considered on a Rule 21.01 Motion
......................................................................................................................... 25
The Question of Law was Properly Decided by the Motions Judge............................... 26
PART V - ADDITIONAL ISSUES ............................................................................................ 28
A. It is Irrelevant that the Appellant was Self-Represented on the Motion ................... 28
B. The Appeal Should be Dismissed .................................................................................. 29
PART VI - ORDER REQUESTED ........................................................................................... 30

23072975.2
 Court File No. C62056

COURT OF APPEAL FOR ONT ARIO

BETWEEN:

DARREN JOHN
Plaintiff
(Applicant)

- and -

ALEX BALLINGALL, TORONTO STAR NEWSPAPERS LTD and

TORSTAR CORPORATION
Defendants
(Respondents)

FACTUM OF THE DEFENDANTS I RESPONDENTS

PART I- OVERVIEW

1. In Ontario, there are special protections for the media contained in the Libel and

Slander Act (the "LSA"). 1 These protect not only freedom of the press, as found ins. 2(b)
2
of the Canadian Charter of Rights and Freedoms (the "Charter"), but also the free

expression rights of the public, which benefits from a robust media. At issue in this appeal

is the scope of two of those protections. The Appellant would seek to improperly limit

them to old technology - newsprint - and deprive the media and the public of protections

for online newspaper publications.

2. Two sections of the LSA protect free expression by creating short limitation

periods for libel in a newspaper, thereby limiting libel actions that can have a chilling effect

1
R.S.O. 1990, c. L.12 (the "LSA").
2
Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK) , 1982, c. 11 .

23072975.2
 2

on publications in the public interest. 3 Section 5(1) creates an absolute bar against actions

for libel in a newspaper unless the plaintiff has provided written notice of the matter

complained of - a "libel notice" - to the defendant within six weeks. Similarly, section 6

precludes libel actions against a newspaper unless the plaintiff commences the action

within three months of becoming aware of the alleged libel.

3. In April 2015, the Appellant sued the Toronto Star (the "Star") and its reporter

Alex Ballingall for libel in relation to a newspaper article that was published, in print and
4
online, in December 2013 (the "Article"). The Appellant failed to provide a libel notice

within six weeks of becoming aware of the alleged libel and also failed to commence an

action within three months. The sole question before the motions judge was whether the

LSA applies to the Article. The motions judge, the Honourable Justice Trimble of the

Ontario Superior Court of Justice, correctly held that it did. As a result, the Appellant' s

claim was statute-barred and could not proceed.

4. In this appeal, the Appellant submits that the LSA, which was enacted in

recognition of the "exceptional position occupied by the newspaper press", 5 applies to

articles published by a newspaper in print, but not the very same articles if published on the

newspaper's website. If the Appellant's position is accepted, it would render the LSA

useless and deprive newspapers of the protection the legislation is intended to provide, as

plaintiffs could simply choose to ignore the requirements in the LSA and sue for the online

3
See paras. 16-17 below.
4
The Article is enclosed with the Appellant's Statement of Claim, Respondents' Compendium (" RC"), Tab
I (the " Article" ).
5
See quote from Murray Alter's Talent Associates ltd. v. Toronto Star Newspapers ltd. , 1995 Can Lil 11076
(Ont Gen Div) ["Murray Alter's" ], Respondents' Book of Authorities ("RBOA") Tab 17 at para. 30.

23072975. 2
 3

rather than print version of an article. This would be an absurd result, contrary to the

current state of the law, the purpose of the legislation, and the Charter.

PART II- SUMMARY OF FACTS

5. The Article was published in the Star online on December 4, 2013 and in print on

December 9, 2013. 6 The Article reports on criminal charges of uttering threats to cause

death or bodily harm and criminal harassment against the Appellant, stemming from the

lyrics of his rap song "Got Yourself a Gun".

6. The Star brought a motion to strike or dismiss the Appellant's claim pursuant to

Rules 21.01 (1 )(a) and 21.0 l(l)(b) of the Ontario Rules ofCivil Procedure, on the basis that

it was statute-barred due to his failure to deliver a libel notice within six weeks of

becoming aware of the alleged libel and his failure to commence an action within three

months. The Star did not file any evidence on the motion; it relied on three pieces of

correspondence from the Appellant to the Star that were referred to in his statement of

claim. 7 Two such emails were also included in the affidavit filed by the Appellant on the

motion. 8 The Star made clear that the correspondence was not being filed as evidence, but

was properly before the Court because it was referred to in the Appellant's statement of

claim, and as such, was exempt from the evidentiary restrictions applicable to Rule 21

6
RC, Tab I. The content of the Article was the same in print and online, with the onl y exception being that a
different headline was originally used online.
7
Statement of Claim, RC, Tab 1, para. 5 (referring to Tab 1-A of the Exhibit Book of the Appellant (" Exhibit
Book")), para. 13 (referring to Tab 1-C of the Exhibit Book), and para. 15 (referring to DMR, Tab 1-B of the
Exhibit Book).
8
Affidavit of Darren John ("John Affidavit"), Exhibit Book Tabs 2B and 20; see also the Endorsement of
Trimble J . dated April 1, 2016, Appellant's Appeal Book and Compendium ("ABC"), Tab 4 (" Endorsement
of Trimble J .") at paras 8-9, where Trimble J. admits the John Affidavit into evidence but gives it no weight.

23072975 .2
 4

motions. 9 At no time did the Appellant take issue with the Star's reliance on these

materials, or with their authenticity. 10

7. There was no dispute on the motion that the Appellant, who was interviewed and

photographed for the Article, 11 and received legal advice with respect to the Article prior to

his participation, 12 was aware of the Article by at least December 5, 2013 when he sent the

Star a "factual error" message about it (the "December 2013 Report"). 13 Although this

communication raised various concerns about the Article, it did not allege libel or

defamation. As the Appellant admitted in his oral submissions on the motion:

I, I've been in contact with the Star immediately, the day that the story was done,
the - because they did two. There was a newspaper article and the online. And I
advised them that, from the day one, the - I didn't know the legal language,
language, but I knew from day one that the article was inaccurate. I advised them
of it. 14

8. It was not until April 15, 2015, more than 16 months after he became aware of the

Article, that the Appellant sent an email to Mr. Ballingall in which he alleged libel in

relation to the Article and threatened legal action if certain statements were not retracted
15
and corrected. On April 18, 2015, the Appellant also sent an email to the Public Editor of

the Star, in which he characterized the Article as "misleading" and "untrue" (but did not

9
Notice of Motion dated August 5, 2015, ABC Tab 7, p. 48; Moving Parties' Factum, RC, Tab 2, para. 13; p.
3, transcript of the hearing of the motion before Trimble J., dated March 23, 2016 ("Motion Transcript"),
RC, Tab 3A, p. 3, line 18-p. 4, line 18.
10
See, e.g., Motion Transcript, RC, Tab 3B, p. 6, line 15-p. 12, line 2.
11
See the Article, RC, Tab I; Motion Transcript, RC, Tab 3C, p. 49, lines 15-20.
12
Motion Transcript, RC, Tab 3C, p. 49, lines 15-20 and p. 54, lines 29-30.
13
Exhibit Book, Tab 1-A (the " December 2013 Report"); Motion Transcript, RC, Tab 30, p. 48, lines 2-7,
p. 58, lines 7-9 and 20-26. See also Motion Transcript, RC, Tab 3E, p. 56, lines 19-25, where the Appellant
states: " ... the day the story was done, I did write them and ask them to change it because I knew what it could
cause"; and Appellant's Exhibit Book Tab 28, as discussed by the Appellant in the Motion Transcript, RC,
Tab 3E, p. 51 , lines 2-22, where the Appellant states on April 18, 2015 that he had been asking for a
correction "since a year and a half ago''.
14
Motion Transcript, RC, Tab 3F, p. 47, lines 2-9 [emphasis added]. See also Motion Transcript, RC, Tab 3F,
p. 47 line 26 top. 48 line 10. And see Endorsement of Trimble J., ABC Tab 4 at paras 23-24.
15
Exhibit Book, Tab 1-B, referred to in the Statement of Claim (RC, Tab 1), at para. 15.

23072975.2
 5

16
allege libel or defamation), and threatened legal action if it was not corrected. The

Appellant did not commence an action for libel in relation to the Article until April 28,

2015 . 17 None of this was in dispute on the motion before Justice Trimble.

9. Since the Appellant confined his claim to the online version of the Article, the only

issue on the motion was whether the applicable limitation periods were those set out in the

LSA (six weeks for a libel notice; three months for a statement of claim), or the general two

year limitation period.

10. Justice Trimble decided the motion under Rule 21.0l(l)(a). He held that the LSA

applied to the online version of the Article, 18 that the Appellant was aware of the Article by

December 5, 2013, 19 and that the only communication from the Appellant that met the

requirements of section 5(1) of the LSA was his email dated April 15, 20 I 5 to Mr.

Ballingall. 20 Given this, and that the claim was not commenced until well after the three
21
month limitation period in the LSA, the Appellant's claim was dismissed as

statute-barred. 22

PART III - POSITION ON ISSUES

1 I. The issue on this appeal is whether Justice Trimble erred in dismissing the

Appellant's action on the basis that it was plain and obvious that his claim was

statute-barred pursuant to sections 5(1) and/or 6 of the LSA.

16
Exhibit Book, Tab 1-C, referred to in the Statement of Claim (RC, Tab I), at para. 13.
17
Statement of Claim, RC, Tab I.
18
Endorsement of Trimble J. , ABC Tab 4 at paras 7, 16.
19
Ibid., at paras. 7, 23-27.
20
Ibid. , at paras. 31-32.
21
Ibid., at para. 33.
22
Ibid., at para. 34.

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 6

12. The Appellant repeatedly, and improperly, seeks to significantly expand the issues

on appeal to include matters not raised before the motions judge: (i) the application of the

LSA to the internet and online posts generally; (ii) the question of whether an internet

posting is a "broadcast" under the LSA; (iii) issues related to the application of the multiple

publication rule; and (iv) issues regarding sections 7 and 8 of the LSA. 23 On the motion

below, the parties argued, and Justice Trimble decided, only the issue of whether the Act

applies "to a newspaper's electronic edition". 24 His decision is also limited to the facts of

this case, which involves a newspaper article published on the newspaper's website.

Therefore, the only issue is the correctness of Justice Trimble's conclusion that the LSA

applies to the A11icle, which was published in the Star's online edition - a conclusion that is

entirely supported by the jurisprudence, the application of principles of statutory

interpretation, and consideration of the important Charter rights protected by the LSA.

PART IV - LAW AND ARGUMENT

13. In concluding that the LSA applies to the online version of a newspaper article,

Justice Trimble properly considered the legislation and applied the relevant jurisprudence.

A. The Motions Judge Properly Concluded that the LSA Should be Interpreted
to Apply to Online Newspaper Articles

The Purpose of the Act

14. Section 5(1) of the LSA provides:

23
See paras. 33-44, 51-64, and 96- 104 of the Appellant's Factum. On the motion before Trimble J., the
Star's position was that its online edition was a "newspaper" under the LSA. It did not argue that internet
publications are "broadcasts" under the LSA: Motion Transcript, RC, Tab 3G, p. 37, lines 30-31. The Star
made arguments regarding the publication of online newspaper articles, and not other types of internet
postings. See, e.g., Motion Transcript, RC, Tab 3H, p. 18, lines 11-19; p. 19 lines 12-26, and Moving Parties '
Factum, RC, Tab 2, paras. 25-26.
24
Endorsement of Trimble J., ABC Tab 4 at para. 6.

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Notice of action
(I) No action for libel in a newspaper or in a broadcast lies unless the plaintiff has,
within six weeks after the alleged libe l 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 man ner as a statement of claim or by delivering
it to a grown-up person at the chief office of the defendant.

15. Section 6 of the LSA provides, in relevant part:

An action for a libe l in a newspaper or in a broadcast shall be commenced within

three months after the libel has come to the knowledge of the person defamed ....

16. These statutory requirements protect the freedom of the press guaranteed by s. 2(b)

of the Charter by providing media defendants with the timely opportunity to consider

whether any retraction or apology is necessary and, if so, mitigate damages accordingly.

As this Court has held:

T he purpose of the notice is to call the attention of the publishers to the alleged
libe lous matter. When it is received an investigation can be made, and if the
publisher deems it appropriate, a correction, retraction or apology can be
publ ished. In this way the publisher can avoid or reduce the damages payable for
the publication of a libellous statement. 25

17. Courts have also recognized the importance of timely notice and limitations

provisions in encouraging the activities of a free press. Long ago, in Sentinel-Review Co. v.

Robinson, this Court held that requiring notice is a "a concession wholly due to the

necessity of giving the press much license in making public matters of general interest and

providing a way in which a slip may be corrected without the expense of a libel suit." 26

The Manitoba Court of Queen' s Bench has cited with approval the notion that a statutory

notice and retraction scheme to limit damages serves to "encourage a more active and

25
Grossman v CFTO-TV ltd, [ 1982) OJ No 3538 ["Grossma11" ], RBOA Tab 12 at paras. 12. See also paras.
29-30, leave to appeal to SCC refd, [ 1983) SCCA No 463 (SCC); see also Janssen-Ortho In c. v. Amgen
Canada Inc., 2005 CarswellOnt 2265 (CA) ["Ja11sse11-0rt/10" ] Appe llant's Book of Authorities (" ABOA'')
Tab A-27 at para. 38 and Siddiqui v Canadian Broadcasting Corp, [2000] OJ No 3638 (CA) ["Siddiqut'],
RBOA, Tab 25 at paras. 17-18, leave to appeal to SCC refd, [2000) SCCA No 664.
26
Sentinel-Review Co. v. Robinson, [1927) O.J. No. 87 (CA) ["Se11ti11el-Review"], RBOA Tab 24 at para.
20; rev ' d on other grounds 1928 CarswellOnt 42 (SCC), [ 1928) S.C.R. 258.

23072975.2
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vigorous press". 27 Similarly, in Murray Alter 's Talent Associates Ltd. v. Toronto Star

Newspapers Ltd., the Divisional Court quoted with approval the following excerpt from an

early treatise on defamation:

... [it] is presumably a recognition by the Local and Federal Legislatures of the
exceptional pos ition occupied by the newspape r press, the public, and, at times,
perilous nature of its duties, and its public usefu lness. It is " legislation [which]
appears to be unique, and the intention is to protect newspapers reasonably well
conducted with a view to the information of the public." The effect of it has been to
give a distinct legal status to the newspaper, and to create a law ofnewspaper libel,
which, apart from the general law on the subject, has always to be considered in
both civil and criminal proceedings. 28

18. This Court has also acknowledged that requiring compliance with section 5(1) of

the LSA is of value to prospective plaintiffs who can benefit "from a prompt correction,

retraction or apology'', which "may be far more valuable than an award in damages."29

The Star is a "Newspaper" in Print and Online

19. The LSA defines a "newspaper" as:

a paper containing public news, intelligence, or occurrences, or remarks or

observations thereon, or containing only, or principally, advertisements, printed
for distribution to the public and published periodically, or in parts or numbers, at
30
least twe lve times a year.

20. Justice Trimble followed this Court's decision in Weiss v Sawyer ("Weiss"), 31

adopting the rationale "that the words ' newspaper' and ' paper' as defined in the LSA are

broad enough to cover a newspaper which publishes on the internet" and that "[t]o hold

otherwise would create absurd result [sic] where the hard copy would have protection of

27
MCF Capital Inc. v Canadian Broadcasting Corp, 2003 MBQB 205 ["MCF Capitaf'] , RBOA Tab 16 at
para. 24.
28
Murray Alter's, supra note 5, RBOA Tab 17 at para. 30.
29
Grossman, supra note 25, RBOA Tab 12 at para. 30. See also paras. 13-14.
30
LSA, section I (I). There was no dispute on the motion, nor is there any dispute in this appeal, that the
Toronto Star in print is a newspaper.
31
Weiss v Sawyer, [2002] OJ No 3570 (CA) ["Weiss"], ABOA Tab A-3.

23072975.2
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the Act, but thee-copy would not". 32 The interpretation of the definition set out in Weiss

and adopted by the motions judge is correct. The Appellant, however, urges this Court to
33
depart from Weiss and adopt a very narrow interpretation of "newspaper". In short,

according to the Appellant, because an online version of an article is not "printed" on

34
physical paper, it should be excluded from the protections of the LSA.

21. The interpretation of "newspaper" as including online newspaper publications is

consistent with accepted principles of statutory interpretation. First, the words of the

legislation must be read "in their entire context and in their grammatical and ordinary sense

harmoniously with the scheme of the Act, the object of the Act, and the intention of

Parliament".35 In this case, the scheme, object and intention behind the LSA are to create a

special regime for media publications. Furthermore, Ontario's Legislation Act provides

that "[a]n Act shall be interpreted as being remedial and shall be given such fair, large and

liberal interpretation as best ensures the attainment of its objects."36

22. Second, interpretations that produce absurd results should be avoided, 37 and, when

possible, legislation must be interpreted to avoid creating a legislative gap. 38

32
Endorsement of Trimble J., ABC Tab 4 at para.18, citing Weiss at paras 24 and 25.
33
Appellant's Factum at paras 46-50.
34
The Appellant also argues, at paras. 49-50 of his factum, that online articles are not "published
periodically ... at least twelve times a year". There is no evidence in support of or logical basis to this
argument, which was not raised before the motions judge. Of course online newspapers are published
"periodically", in the sense that new articles are indeed posted periodically. Nor does the Appellant cite any
authority in support this argument.
35
Rizzo & Rizzo Shoes Ltd. (Re), [ 1998] I SCR 27 ["Rizzo"], RBOA Tab 22, at para. 21 lemphasis added].
36
legislation Act, 2006, S.O. 2006, c. 21, Sched. F.
37
Rizzo, supra note 35, RBOA Tab 22, at para. 27, where the Supreme Court noted: " It is a well established
principle of statutory interpretation that the legislature does not intend to produce absurd consequences.
According to Cote ... an interpretation can be considered absurd if it leads to ridiculous or frivolous
consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is
incompatible with other provisions or with the object of the legislative enactment. .. Sullivan echoes these
comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a
statute or render some aspect of it pointless or futile ... " [citations omitted].

23072975.2
 10

23. Third, a dynamic, rather than static, interpretation of the definition of "newspaper"
39
is appropriate. As the Supreme Court of Canada held in R v. 974649 Ontario Inc. :

... T he intention of Parliament or the legislatures is not frozen for all time at the
moment of a statute's enactment, such that a court interpreting the statute is
forever confined to the meanings and circumstances that governed on that
day. Such an approach risks frustrating the very purpose of the legislation by
rendering it incapable of responding to the inevitabi lity of changing
circumstances. Instead, we recognize that the law speaks continually once
adopted [citations omitted]. Preserving the original intention of Parliament or the
legislatures frequently requires a dynamic approach to interpreting their
40
enactments, sens itive to evolving social and material realities.

24. In particular, the Supreme Court of Canada has recognized the principle of

technological neutrality: that, absent legislative intent to the contrary, legislation should

not be interpreted or applied to favour or di scriminate against any particular form of

technology. 41 Rather, courts can, and indeed should, apply legislation to new technology

that was not in existence at the time of drafting. For example, in Attorney General v.

Edison Telephone Co. of London, 42 the English Exchequer Court held that the provisions

governing telegraphs in the Telegraph Act were also applicable to telephones, even though

the telephone had not been invented when the provisions were enacted. 43 More recently,

38
Where there is a choice between two plausible interpretations of legislation, the preferred interpretation is
the one that avoids a ruling that the legislation is under-inclusive resulting in a legislative gap. See Alberta
Union of Provincial Employees v lethbridge Community College, [2004] SCJ No 24 ["Alberta Union"],
RBOA Tab 1 at para. 47, where Iacobucci J. noted: "A restrictive interpretation ofarbitral jurisdiction in s.
142(2) results in legislative lacunae; a broad interpretation of the provision produces results more consonant
with statutory objectives." See also R v F (PR), [2001] OJ No 5084 ["R v. F'], RBOA Tab 20 at para.15
(CA); and Charles v Canada (Attorney General), 134 DLR (4th) 452 (Ont Gen Div) [" Charles"], RBOA
Tab 9, at 462, aff'd [ 1998] OJ No 1256 (CA), where Ground J. wrote, at para. 22: " ... in order to avoid a
'legislative absurdity', the court in the case at bar must fill a legislative gap".
39
2001, SCC 81 [" 974649 Ontario"], RBOA Tab 19.
40
Ibid., RBOA Tab 19, at para. 38 [emphasis added], cited in Ruth Sullivan, Sullivan on the Construction of
Statutes, 6th ed. (Markham, ON: LexisNexis Canada, 2014) ["Sullivan"], RBOA Tab 31 , at pp. 171-172.
See also Sullivan at p. 172, quoting Francis Bennion for the point that legis latures cannot engage in
continuous monitoring and adaptation of legislation; rather, this should be the job of the courts.
41
Canadian Broadcasting Corp. v SODRAC, 2003 Inc. 2015 SCC 57 [" Canadian Broadcasting Corp"],
RBOA Tab 8, at para. 66.
42
( 1880), 6 QBD 244 ["Edison"], RBOA Tab 2.
43
Ibid., RBOA Tab 2 at p. 253-257, and in particular at p. 255: "The Act, in short, was intended to confer
powers and to impose duties upon companies established for the purpose of communicating information by

23072975.2
 11

the Federal Court of Appeal held that a fibre optic system is a "cable" within the meaning

of the Income Tax Act, despite the fact that the fibre optic system did not exist at the time

the legislation was drafted:

ln general, courts have found that new technology is embraced by old language:
("bicycle" within "carriage") ... ("telephone" within "telegraph") ... ("rape-seed"
within "grain") ... ("form work" within "construction") ... ("invertor" within
44
"converter") ... ("truck" within "horse and carriage"). [citations omitted]

25. Here, the Star's publication of its newspaper articles online is functionally

equivalent to a printed newspaper. 45 It is simply a new way in which the newspaper's

content is published, or delivered to the public. There is no evidence of legislative intent to

exclude the online version of a newspaper from the application of the LSA - nor could

there be, given the age of the legislation. Recognizing that newspapers are entitled to the

important protections in sections 5(1) and 6 of the LSA in relation to both their print and

online publications is also consistent with the purpose of the legislation - to protect
46
newspapers and freedom of the press, a right enshrined in section 2(b) of the Charter.

26. Conversely, concluding that the Act does not apply to online newspapers would

create a gap in the legislation that would deprive newspapers of critical protections

intended for them under the LSA, and lead to an absurd result in which newspapers could

benefit from those protections in relation to the version of an article published in newsprint,

the action of electricity upon wires, and absurd consequences would follow if the nature and extent of those
powers and duties were made dependent upon the means employed for the purpose of giving the
information". See also, Sullivan, supra note 40, RBOA Tab 3I at p. 179-180.
44
British Columbia Telephone Co. v R, [1992] FCJ No 27 (FCA) ["British Columbia Teleplto11e Co."],
RBOA Tab 5 at para. 17. See also Lumberland Inc. v Nineteen Hundred Tower ltd., [1977] 1 SCR 581
[" Lumberlancf'], RBOA Tab I 5, at para. 29.
45
Sullivan, supra note 40, RBOA Tab 3I at p. 179.
46
See also Frisina v. Southam Press Ltd et al. 30 O.R. (2d) 65 [" Frisina" ], RBOA Tab I I at 4, where
Robins J. of the High Court of Justice held that it was clearly " prejudicial to a defendant [newspaper] to
deprive it of the benefits of [s. 5 of the LSA] and in the absence of express language doing so, a construction
importing this result should not ... be given the statute." (emphasis added)

23072975.2
 12

but not the very same content published online. There is no rational reason to create such a

distinction, which would also be contrary to the practice and expectations of the media
47
since it became common practice to publish an online edition.

48
27. Finally, contrary to the Appellant's argument, the lack of amendment to the LSA

to specifically deal with online newspaper publications cannot be interpreted as active

legislative intent to exclude that medium. First, the "recent amendments" referred to by the

Appellant were largely to the Courts ofJustice Act, 49 not the LSA, 50 dealt with a specific

form of suit ("anti-SLAPP" or "gag proceedings", intended to limit freedom of expression

on matters of public interest), and did not purport to generally alter the current legislative

scheme governing defamation law in Ontario. Second, as noted by this Court in Shtaif v.
51
Toronto Life Publishing Co. ("Shtaif'), judicial interpretation to deal with new
52
technology is an appropriate response to "statutory language drafted in a far earlier era".

Section 7 of the LSA does Not Change the Correct Interpretation of "Newspaper"

28. The Appellant argues, for the first time on appeal, 53 that section 7 of the LSA

illustrates that the definition of "newspaper" under the Act cannot reasonably include an

online publication. In so doing, the Appellant puts the cart before the horse.

47
The Appellant has not cited a single decision where a court has held that the LSA did not apply to online
newspaper articles. Rather, courts have implicitly or explicitly accepted that the notice and limitation periods
do apply. See footnote 75, below.
48
Appellant's Factum at para. 44(b).
49
RSO 1990, c C 43. These amendments were made through the Protection of Publication Participation Act,
2015, s.o. 2015, c. 23.
50
The only direct amendment to the LSA was to s. 25 regarding qualified privilege.
51
Shtaifv Toronto life Publishing Co, 2013 ONCA 405, ABOA Tab A-2 ["Shtaif'] .
52
Ibid., ABOA Tab A-2 at para. 20.
53
The Appellant, who pleads in his Statement of Claim that, among other things, the Star carries on business
across Toronto, and that the reporter who published the Article resides in Ontario, has never before disputed
that the Star, or the Article, is published in Ontario. (See RC Tab I, paras 2, 3.) As this Court held in Shtaif,
for the Court of Appeal to entertain new issues not raised in the court below, it "must have a satisfactory

23072975.2
 13

29. Section 7 states that sections 5(1) and 6 of the LSA "apply only to newspapers

printed and published in Ontario". However, naturally section 7 would refer to the printed

newspaper, since the LSA was drafted at a time when the printing press was the only

technology by which newspapers were published. In light of the dynamic interpretation

that should be applied to the definition of "newspaper" - focused on technological

neutrality and functional equivalence - section 7 should be dealt with in the same way. In

any event, on a plain reading of section 7, the Star is a newspaper printed and published in

Ontario.

30. Furthermore, it is settled law that when material is posted online, publication takes

place "whenever and wherever a third party downloads or views the impugned material

from the website''. 54 Here, it is not disputed that Star readers downloaded and/or viewed

the Article online in Ontario. In fact, the Appellant did so himself. Having brought his

defamation claim in Ontario, the Appellant has conceded that the allegedly defamatory

Article was published in Ontario, as the basis of the jurisdiction of the Ontario courts to

deal with his claim. 55

31 . Finally, the jurisprudence confirms that the definition of "newspaper" should not

be narrowly limited to old technology on the basis of section 7. As noted by this Court in

Janssen-Ortho Inc. v Amgen Canada Inc. ("Janssen-Ortho"): "[i]n Weiss, the original

record to address the issue and be persuaded that if we do consider it, the party against whom the issue is
raised will not be prejudiced." (See Shtaif, supra note 51, ABOA Tab A-2 at para. 46)
54
Elfarnawani v. International Olympic Committee, [2011] OJ No 5059 ["Elfamawant'], ABOA Tab A-23
at para. 31 , citing, amongst other cases, Crookes v. Wikimedia, 2011 SCC 47 [" Crookel"'], ABOA Tab A-22;
and Breeden v. Black, 2012 SCC 19 [" Breeden"] , RBOA Tab 6 at para. 20 (" It is well established in
Canadian law that the tort of defamation occurs upon publication of a defamatory statement to a third party.
In thi s case, publication occurred when the impugned statements were read, downloaded and republished in
Ontario by three newspapers.").
55
Breeden, supra note 54, RBOA Tab 6 at para. 20.

23072975.2
 14

newspaper was published in Ontario. The court did not discuss whether or not the online

version was published in Ontario. However, the court held that a s. 5(1) notice was

required. Thus, it seem s the court inferred the online version was al so publ ished in

Ontario. I would make the same inference here." 56

B. The Motions Judge Correctly Applied the Jurisprudence to Conclude that the
LSA Applies

32. As noted by Justice Trimble, 57 this Court has held that section 5(1) of the LSA

applies to both the print and online versions of a newspaper. 58 In Weiss, the Court reasoned

that the definition of " newspaper" in the LSA was broad enough to include a newspaper

published on the internet. The Court held that it was consistent with the purpose and

scheme of the LSA to extend the benefit of the notice provision to those sued in respect of

a libel in a newspaper "irrespective of the method or technique of publication". 59 Jn

reaching this conclusion, the Court noted it would be "absurd" to allow the LSA to bar a

claim relating to a newsprint publication but not the online publication,60 and endorsed the

motion judge's statement that "a newspaper is no less a newspaper because it appears in an
61
online version". While only section 5(1) of the LSA was at issue before the Court in

Weiss, its reasoning applies equally to section 6.

33. The reasoning in Weiss is sound , was correctly applied by the motions judge, and

should be affirmed by this Court. The Appellant's reliance on the more recent case of

56
Janssen-Ortho, supra note 25, ABOA Tab A-27 at para. 41.
57
Endorsement of Trimble J., ABC Tab 4 at paras I 7-19.
58
Weiss, supra note 3 1, ABOA Tab A-3 at para. 24.
59
Ibid., ABOA Tab A-3 at para. 25.
60
Ibid., ABOA Tab A-3 at paras. 24-25.
61
Ibid., ABOA Tab A-3 at para. 25.

23072975.2
 15

Shtaif, 62 in which this Court deferred to trial the question of whether an online magazine

article was covered by sections 5(1) and 6, is misplaced. As held by Justice Trimble in the
63
court below, Shtaif does not overrule Weiss, and is distinguishable from the present case.

34. In Shtaif, this Court's decision to defer the notice issue to trial was based on the

inadequacy of the evidentiary record. 64 The Court noted that in that case it also made

practical sense to defer the issue of whether or not sections 5(1) and 6 of the LSA applied,

because that legal question was solely relevant to the issue of discoverability of the online

posting of the magazine article - an issue that had not been raised in the court below, was

contested between the parties and that the Court of Appeal decided had to be left to trial. 65

35. Indeed, in Shtaif, the Court considered Weiss and its decision in Bahlieda v. Santa

("Baltlieda"), 66 and proceeded to explicitly limit its decision to the facts before it. Justice

Laskin, noting the insufficiency of the evidentiary record, wrote that: "[i]in this case, I

think the sensible course is that adopted in Bahlieda". 67 This course of action made sense

on the facts of Shtaif, in which one of the issues raised was whether the online magazine

article in question constituted a "broadcast" under the LSA. This was also at issue in

Bahlieda, where there was conflicting expert evidence on this point. 68 The question of
69
whether an internet publication is a broadcast is not at issue in the present case.

62
Shtaif, supra note 51, ABOA Tab A-2. The Appellant also made submissions relating to Shtaif on the
motion. See, for example, Motion Transcript, RC, Tab 31, p. 46, lines 20-25.
63
Endorsement of Trimble J ., ABC Tab 4 at para. 19; see also Shtaif, supra note 51, ABOA Tab A-2 at paras
22-24.
64
Shtaif, supra note 51 , ABOA Tab A-2 at paras. 24, 46-48.
65
Ibid. , ABOA Tab A-2 at paras 24-25, 44-45.
66
Bahlieda v. Santa, (2003] 0.J. No. 409 1 [" Baltlieda" ], ABOA Tab A-13.
67
Shtaif, supra note 51 , ABOA Tab A-2 at para. 24 [emphasis added].
68
Bahlieda, supra note 66, ABOA Tab A-13 at para. 6.
69
Counsel for the Star confirmed to Trimble J. that the Star was not making this argument: Motion
Transcript, RC Tab 3G, pp 37, lines 28-3 1 and 38 lines 5-8.

23072975.2
 16

36. By contrast, and despite the Appellant's attempts to create an evidentiary issue,

there are no material facts in dispute in this case that would require a trial. In particular,

Justice Trimble correctly held that "Mr. John's case has no issue as to discoverability that

required a trial." 70 It was not disputed in the court below that the Appellant became aware
71
of the Article on at least December 5, 2013, when he sent the December 2013 Report. It

was not disputed that the next communication that could qualify as a libel notice was the

April 15, 2015 email. Rather, there was a question of law to be decided on uncontroversial

facts. The correct course in this case is that taken by Justice Trimble: to follow Weiss to

conclude that the LSA applies to a newspaper's online edition, and in particular to the

Article.

37. Furthermore, as Justice Trimble noted, cases smce Weiss have "accepted,
72
implicitly, [that] the [LSA] does apply to an internet publication or broadcast". Recently,

in CUPW v Quebecor Media Inc. ("CUPW'),7 3 this Court decided an appeal in a libel

action over an internet broadcast and article published both in print and online by the

Toronto Sun newspaper. The plaintiff appealed from a successful Rule 21 motion by the

defendants to strike the claim on the basis that the plaintiff had not provided sufficient
74
notice under section 5(1) of the LSA. The motions judge had struck the claim with

respect to both the print and online material, and while this Court reversed the decision on

70
Endorsement of Trimble J ., ABC Tab 4 at para. 15.
71
See paragraph 7 and footnote 14, above.
72
Endorsement of Trimble J., ABC Tab 4 at para. 20.
73
CUPWv Quebecor Media Inc, 2015 ONSC 4511, rev'd 2016 ONCA 206 ("CUPW' ], RBOA Tab JO.
74
CUPW, supra note 73, RBOA Tab 10 at paras. 6-8.

23072975.2
 17

the basis that the content of the libel notices were sufficient, the implicit holding was that
75
the LSA applied to the online newspaper article.

38. In this case, there is no reason to depart from Weiss, which was correctly followed

by Justice Trimble to hold that the Star was entitled to the protections of sections 5 and

6(1).

C. Section 8 of the LSA is Not at Issue on this Appeal

39. The Appellant improperly seeks to rai se section 8(1) of the LSA as yet another new

issue on this appeal. 76 Indeed, never having suggested non-compliance by the Star with

section 8(1) or raised it in any way on the motion or otherwise, he now argues this

provision bars the Respondents from relying on the notice and limitation provisions in the

LSA. The Respondents need only show compliance with section 8( l ) if it is an issue

properly raised by a party. 77 As this Court held in Shtaif, where the Court entertains new

issues not raised in the court below, it " must have a satisfactory record to address the issue

and be persuaded that if we do consider it, the party against whom the issue is raised will
78
not be prejudiced." In this case, the Respondents would be severely prejudiced if the

Court agrees to consider this issue. Had the issue been raised below, appropriate evidence

75
See also Janssen-Ortho, supra note 25, ABOA Tab A-27 at paras. 2, 6, and 4 I (invol ving an internet
re-broadcast of a radio interview); World Sikh Organization of Canada v CBC/Radio Canada, 2007
Carswell Ont 7649 (Ont Sup Ct J) [" World Sikit" ], RBOA Tab 29 at paras. I 3- I 4 (involving, among other
things, an online article published on the CBC webs ite); Willis v. Mathieu, 2016 ONSC 2639 [" Willis"],
RBOA Tab 28 at paras. 5-6 (involving a newspaper article published in pri nt and online).
76
Appellant's Factum, paras. 60-64.
77
See Elliott v. Freisen, 1984 CarsweJJOnt 350 (CA) ["Elliotf'], ABOA Tab A-2 l at para. 6, where the
appellant raised non-compliance with section 8( I) for the first time on appeal but was required to obtain leave
to argue the issue, and the appeal was adjourned when leave was granted. To the extent Dingle v. World
Newspaper, 191 8 Carswell Ont 14 (SCC), ABOA, Tab A-20 ["Dingle"] suggests the onus is on the
Respondent to provide evidence of compliance with section 8( I) in the absence of it being ra ised by the
rilaintiff, Dingle is no longer good law in light of the modern jurisprudence.
8
Shtaif, supra note 51 , ABOA Tab A-2 at para. 46.

23072975.2
 18

of compliance with section 8(1 ) would have been filed and possibly a cross-examination of

the Appellant conducted.

40. In the alternative, and in any event, there is no merit to the Appellant's arguments

regarding section 8(1 ). This provision states that a defendant is only entitled to the benefits

of sections 5 and 6 if " the names of the proprietor and publisher and the address of

publication are stated either at the head of the editorials or on the front page of the

newspaper" .

41. However, as Peter Downard notes in his text, Libel, this provision is "plainly

intended to ensure that potential plaintiffs have the information they need to comply with

the notice requirement that may otherwise restrict their access to the com1s". 79 As this

Court held in Elliott v Freisen, there need only be "substantial compliance with the spirit of

s. 8(1) so that the complainant is able to give the requisite notice". 80 In addition, in Grajf v.

Mallick and Toronto Star Newspapers, where there was appropriate evidence before the

court, Deputy Judge Ashby recently granted the Star's motion to strike the plaintiff's claim

in relation to the print and online versions of a newspaper article and held that there was

substantial compliance with section 8(1) of the Act.81 Deputy Judge Ashby also noted that,

as here, there was "no suggestion that the plaintiff was prejudiced in any way by failure to

strictly comply with section 8" .82

79
Peter Downard, libel, 3'd ed., RBOA Tab 30 at 264-265, 13.25.
80
/lioll, supra note 77, ABOA Tab A-21 at para. 13.
81
Graflv. Mallick and Toronto Star Newspapers, (J une 6, 20 16), Toronto, SC- 14- 10812-00 (Ont. S.C.J ., Sm.
Cl. Ct.) unreported ["Graff'], ABOA Tab A-I at paras. 7-10 (under appea l to the Divisional Court, Court
File No. 344/ 16).
82
Jbid. , ABOA Tab A-I at para. 9.

23072975.2
 19

42. As shown by his statement of claim and his own evidence and submissions on the

motion, the Appellant had no trouble contacting the Toronto Star on multiple occasions

and in multiple ways. In the Appellant's own words, he made demands of the Star

" immediately after reading this story and its headline", 83 had a number of exchanges with

the reporter, and contacted the public editor of the Star at her email address. 84

43. This Court should refuse to deal with this new issue regarding section 8(1) of the

LSA or, in the alternative, find that there is no evidence of non-compliance with this

section and/or that the Star is in substantial compliance with the spirit of the provision.

D. The Appellant's Argument Regarding Presumption of Publication Should be

Rejected

44. The Appellant appears to be attempting to make an argument that, because there is

no "presumption of publication" for statements posted on the internet, the LSA does not

apply to online newspaper articles. 85 This argument is nonsensical and should be rejected.

45. The Appellant relies on section 2 of the LSA, which deems defamatory words in a

newspaper to have been "published" in law, and on the Supreme Court of Canada's

decision in Crookes v Wikimedia Foundation Inc. ("Crookes") , which held that there was

no presumption of publication on the internet. 86 However, Crookes dealt with very

different issues than those present on this appeal. Crookes was a case about whether

posting a hyperlink constituted publication of the content found at that link. The Supreme

Cout1 held that there was no presumption of publication on the internet in the context of

83
Appellant's Statement of Claim, RC, Tab I, para. 4.
84
See e.g. , Statement of Claim, RC, Tab I at paras 5, 13; John Affidavit, Exhibit Book Tab 2 at paras 1-6 a nd
Exhibits 2 -8 to 2-E.
85
Appellant's Factum at paras 65-70.
86
Crookes, supra note 54, ABOA Tab A-22.

23072975.2
 20

rejecting the argument that, when a hyperlink is inserted on a webpage, it should be

presumed that the content to which the link connects has been brought to the knowledge of

a third party and therefore published. 87 Crookes did not involve a newspaper article, in

print or online, and did not decide whether section 2 (or the equivalent section under the
89
British Columbia Libel and Slander Act 88 ) applies to online newspaper articles. It is not

relevant to this appeal.

46. Section 2 of the LSA is clearly intended to benefit the plaintiff in a libel action, as it

eliminates the requirement to prove publication - one of the few elements of the tort of

defamation in which the burden of proof lies on the plaintiff - when a newspaper

publication is at issue. The Appellant here attempts to tum it on its head, and transform it

into a bar to the protections for defendants in the LSA. Such an interpretation would be

plainly inconsistent with the scheme and purpose of the LSA and the Charter.

E. The Limitation Periods Began to Run When the Appellant Became Aware of
the Online Article

47. The Appellant also seeks to rely on an incorrect interpretation of the "multiple

publication rule" - another issue that was not raised before the motions judge and should

not be permitted to be raised here. 90 The Appellant now argues that, if this Court confirms

that sections 5(1) and 6 of the LSA apply to the Article, he compl ied with those provisions

because the time periods did not begin to run when the Appellant first became aware of the

87
Ibid. , ABOA Tab A-22 at para. 14, per Abella J . See also para. 108 per Deschamps J., concurring in the
result.
88
R.S.B.C. 1996, c. 263, s. 2.
89
None of the decisions cited by the Appellant at paragraph 69 of his factum deal with on line newspaper
articles.
90
Indeed, Trimble J. noted that the Appellant "did not contest the Defendants' submission that failing to meet
the notice requirement (both in content and timing of the notice) was fatal to a cause of action, if the [LSA]
app lied", Endorsement of Trimble J., ABC Tab 4 at para. 2 1.

23072975.2
 21

Article. Rather, the Appellant submits that there was a "new" publication of the Article on

each day it remained available online, and therefore the notice and limitation provisions

began to run on the day that the Appellant commenced his claim, April 28, 2015. This

argument by the Appellant overrides the discoverability rule, is not supported by the

jurisprudence, and, if accepted, would render meaningless the protections in sections 5( 1)

and 6 of the LSA.

48. This Court in Shtaif rejected the "single publication rule" (that a single cause of

action arises at the first publication of an alleged libel); however, in doing so, the Court was

clearly rejecting the notion that the limitation period for commencing suit with respect to

the online magazine at issue in that case should begin to run when the plaintiffs became

aware of the printed magazine article. Rather, the Court found that the limitation period

with respect to the online article should commence to run when the plaintiffs first became

aware of publication in that medium. 91 In Shtaif, the plaintiffs became aware of the printed

article before they became aware of the online article,92 and it was the dispute with respect

to discoverability of the online article that led to the Court's decision to defer the issue of

discoverability for trial. 93 The Appellant attempts to twist Shtaif to suggest that this

decision means that each new day of publication of the online Article grounds a new cause

of action. This is clearly incorrect.

49. Indeed, Justice Hackland of the Ontario Superior Court of Justice in Vachon v.

Canada Revenue Agenc/4 expressly rejected the Appellant's interpretation of Shtaif:

91
Shtaif. supra note 51, ABOA Tab A-2 at paras 27-40.
92
Ibid., ABOA Tab A-2 at para. 30.
93
Ibid., ABOA Tab A-2 at paras 40-48.
94
20 15 ONSC 6096 [" Vaclto11" ] , RBOA Tab 26.

23072975.2
 22

The plaintiff argues that the alleged defamation should be taken as having been
re-published every day through the entire time the Notice of Hearing remained
accessible on the internet, (until July 2012) relying on Shtaif v. Toronto Life
Publishing Co., 2013 ONCA 405 (Ont. C.A.). Shtaif does not support that
proposition. Shtaif holds that an internet posting of a prior defamatory print
publication is a republishing of the defamation and any limitation period based on
discoverability will run from the point where the internet defamation is
discovered ...95

50. The British Columbia Court of Appeal decision in Carter v. B. C. Federation of

Foster Parents Assn. ("Carter") 96 does not stand for the proposition that a new and distinct

cause of action accrues each day a newspaper article remains online. Carter was an appeal

from a decision on a motion for summary judgment dismissing the action, and turns on its

own unique, and distinguishable, facts. It dealt with an allegedly defamatory comment

posted on an online chat room, which was discovered by the plaintiff at the original time of

posting. While the chatroom host directed that the comment be removed, more than two

years later the plaintiff learned that when the chat room was "reconstituted as a ' read only'

site", the offending comment remained online. 97 The B.C. Court of Appeal did not decide

that this was sufficient to ground a new publication, but simply held that, in these

circumstances, the plaintiff should be given the opportunity to tender evidence at trial to

support subsequent publication. 98

51. In any event, Carter did not deal with continuous publication of a newspaper article

online, which was discovered by the plaintiff almost immediately and with no intervening

facts to support the existence of a fresh publication (such as the removal and reinstatement

of the chat room in Carter). Vachon, on the other hand, is a recent Ontario decision,

95
Ibid., RBOA Tab 26 at para. 22 [emphasis added] .
96
2005 BCCA 398 ["Carter'' ], ABOA Tab A-33.
97
Ibid., ABOA Tab A-33 at para. 5.
98
Ibid. , ABOA Tab A-33 at paras 20 and 22.

23072975 .2
 23

correctly interpreting this Court's pronouncement on the multiple publication rule m

Shtaif.

52. In this case, as noted above,99 it was admitted that the Appellant discovered the

online publication of the Article by at least December 5, 2013, when he sent the December

2013 Report. As a result, the limitation periods in sections 5(1) and 6 of the LSA began to

run on that day.

F. The Motions Judge was Entitled to Consider the December 2013 Report

53. Contrary to the Appellant's assertions, 100 Justice Trimble was entitled to consider

and rely on the December 2013 Report 10 1 to the Star from the Appellant, which was in any
102
case not disputed by the Appellant on the motion.

54. It is, of course, correct that no evidence is admissible on Rule 21.0 1 motions,

except with leave of the judge or with consent on a Rule 21.0l(l)(a) motion to determine a
103
question of law.

55. Despite these restrictions on filing evidence, Ontario courts have held that a judge

on a Rule 21.01 motion is " entitled to consider the documents specifically referred to and

99
See paragraphs 7 and 36 above.
100
Appellant's Factum at paras 24 and I 11 .
101
See footnote 13 above.
102
Motion Transcript, RC, Tab 38, p. 6, line 15 - p. 12, line 2; RC, Tab 30, p. 48, lines 2-7, p. 58, lines 7-9
and 2 1-23; and RC, Tab 3F, p. 47, lines 2-9,.
103
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, see Rules 21.0 l (2)(a) and (b).

23072975.2
 24

relied on" in the statement of claim. 104 These documents are not evidence, but are "in

effect, incorporated into the pleading". 105

56. In Law v Whelan, 106 the Ontario Superior Court of Justice considered a motion for

the determination of a question of law pursuant to Rule 21.0l(l)(a). In considering the

available evidence, the Court stated:

Documents that are specifically pleaded may be considered on a Rule 21

motion and are not considered evidence for which leave must be granted on
a Rule 21 motion. This provision must be understood in the context of Rule
2 1. Where there are undisputed documents that are central to the dispute,
they may be considered by the court on a Rule 2 1 motion. Where
documents are contested , however, there may need to be evidence, and the
107
motion may have to be brought under Rule 20 (summary j udgment).

57. Here, as the December 2013 Report was referred to and rel ied on in the Appellant's

claim, 108 and in any event was admitted by him, 109 the motions judge was entitled to

consider it. Furthermore, the Star's position regarding this document was clearly raised on
110
the motion and the Appellant did not object.

G. This Case was Properlv Dealt with on a Rule 21.01 Motion

58. Contrary to the Appellant's arguments, this case was appropriately decided on a

Rule 21.01 motion.

104
Web Offset Publications ltd v Vicke1y, ( 1999), 43 OR (3d) 802 (CA) [" Vickery"] , RBOA Tab 27; leave to
appea l to SCC refused (2000), [ 1999] SCCA No. 460, deciding the issue in the context of a motion under
Rule 2 1.0 l ( l )(b).
105
Ibid., RBOA Tab 27 at para. 3.
106
2008 CarswellOnt 4896 (Ont Sup Ct J) ["Wltale11" ], RBOA Tab 14.
107
Ibid., RBOA Tab 14 at para. 13 [emphasis added]. In any event, in Beardsley v. Ontario, [200 I] OJ No
4574 (CA) [" Beardsley" ], RBOA Tab 3 at paras 9, JO, 24, this Court held that documents not referred to in
the statement of claim should nevertheless be admitted because, where notice is a precondition to the right to
sue, "[i]t would defeat the interests of j ustice to restrict a defendant's right to adduce evidence that proper
notice was not given" (at para. I 0).
108
Statement of C laim, RC, Tab I, para. 5.
109
Motion Transcript, RC, Tab 30, p. 48, lines 2-7, p. 58, lines 7-9 and 21-23; and Whalen, supra note I 06,
RBOA Tab 14 at paras 3 and 32.
110
See para. 6, above.

23072975.2
 25

The Application of a Limitation Period is Properly Considered on a Rule 21.01 Motion

59. The Appellant asserts that the motions judge should not have decided that the

notice and limitation periods in the LSA apply to his claim, on the basis that such a

determination is not appropriate on a Rule 21 .01 ( 1)(a) motion when it depends on findings

of fact. 111 He argues that Justice Trimble erred in dismissing his claim because he made

"crucial findings of fact on the [December 2013 Report] " 112 to conclude that it was

statute-barred.

60. This argument has no application to this case. Justice Trimble had no need to make,

and did not make, crucial factual findings on contested issues. Rather, as noted above, the

Appellant admits that he sent the December 2013 Report. 113 Justice Trimble decided a

question of law: whether, on the uncontested facts, the action was statute-barred. This is an
114
entirely appropriate determination on a Rule 21.01 motion.

61. The case cited by the Appellant, Boutin v Co-Operators, Life Insurance Co.

("Boutin"), 115 also has no application to the facts at hand. In Boutin, the Ontario Court of

Appeal held that the question of whether the defendant was entitled to rely on the limitation

period in a terminated insurance policy was an issue requiring a trial because, in that case,

it had "a significant factual component". 116 The motions judge in Boutin considered

"extensive evidence", 117 including the defendant's insurance policy, various claim forms,

111
Appellant's Factum paras. I08-112.
IP
- Appellant's Factum, para. 112.
113
Statement of Claim, RC, Tab I, para. 5; and see para. 7 above.
11 4
Sandrabalan v Toronto Transit Commission (2009), 176 ACWS (3d) I 003 (Ont Sup Ct J)
[" Sa11drabala11" ], RBOA Tab 23 at paras. 12-13. And see Joseph v. Paramount Canada's Wonderland, 2008
ONCA 469 [" Joseph" ], RBOA Tab 13 at paras 2-7, which involved a motion, properly brought under Rule
21.0 I(I )(a), to determine as a question of Jaw whether or not a claim was statute-barred.
11 5
( 1999), 42 OR (3d) 612 (CA) ["Boutin"], ABOA Tab A-36.
16
I Ibid., ABOA Tab A-36 at para. 22.
117
Ibid., ABOA Tab A-36 at para. I.

23072975.2
 26

medical information, correspondence between the parties and the plaintiffs examination

1or d'1scovery transcnpt.

c: . 118

62. On the motion before Justice Trimble, there was no issue of discoverability and he

did not have to weigh competing evidence. Furthermore, in the absence of significant

factual issues, Ontario courts regularly make determinations on Rule 21.01 motions about

the sufficiency of libel notices and the applicability of the notice and limitation periods in

sections 5(1) and 6 of the LSA. 119 The present case is exactly the kind of case appropriate

for a preliminary Rule 21.0 I motion, and Justice Trimble's decision was both correct in

law and an efficient use of judicial resources.

The Question of Law was Properly Decided by the Motions Judge

63. The Appellant also argues that matters that have not been "fully settled in the
120
jurisprudence" should not be disposed of on a Rule 21.0l(l)(a) motion. However, in

Weiss this Court held that the LSA applies to online newspaper articles. While Shtaif

deferred the issue to trial, the circumstances of that case were clearly distinguishable, given

118
/bid, ABOA Tab A-36 at para. 17.
119
See World Sikh, supra note 75, RBOA Tab 29 and CUPW, supra note 73 , RBOA Tab 10. In CUPW, the
motions judge held at para. 13 that "[i]t is not disputed that ... the sufficiency of the notice under the Libel
and Slander Act is a question of law and properly before the Court on a Rule 21 motion." On appeal, the
Ontario Court of Appeal reversed the motion judge's conclusion that the libe l notices were deficient pursuant
to section 5( 1) but did not take issue with the fact that the motions judge had considered the adequacy of the
notices on a Rule 21.01 ( 1)(a) motion.
120
Appellant's Factum at paras 114-115.

23072975.2
 27

the contested factual issues and insufficient evidentiary record in Shtaif. 121 As such, Shtaif
122
is not inconsistent with Weiss, which governs and constitutes settled law.

64. In any event, a matter of law may be disposed of on a Rule 21.0 1(1) motion where

there is a discrete question of unsettled law that can be clearly isolated from the contested

issues of fact in the case. 123 The proposition that matters of unsettled law cannot be

disposed of on a Rule 21 motion is based on the reasoning that such issues should be

decided at trial on the basis of a full evidentiary record. 124 This reasoning does not apply in

this case as a determination of the question of law is a matter of applying the relevant

jurisprudence and principles of statutory interpretation. No factual support - beyond the

uncontested facts in the record - or expert testimony is needed, and thus a trial is

unnecessary.

65. In Nelles v Ontario ("Nelles"), the Supreme Court of Canada held that a trial was

not necessary to permit a conclusion on a discrete question of law. Justice Lamer for the

majority held:

Rule 124 [the predecessor to rule 21.0 I ( l)(a)] is des igned to provide a means of
determining, without deciding the issues of fact raised by the pleadings, a question
of law that goes to the root of the action ... What is at issue is whether the Crown,
Attorney General and C rown Attorney are a bsolutely immune from suit for the
we ll-established tort of malic ious prosecution. This particular issue has been given
careful consideration both by the Court of Appeal and in argument before this

121
Endorsement of Trimble J., ABC Tab 4 at para. 19. And see Downard, libel, supra note 79, RBOA Tab
30 at 265, 13.27 and 13.28, citing Weiss: "The Ontario Court of Appeal has held that the Internet version of
a publication otherwise constituting a 'newspaper' under the Ontario libel and Slander Act is subject to that
statute's notice requirement. .. '', but goes on to explain that the issue of whether information posted on
Internet websites is a " broadcast" within the meaning of the LSA "remains outstanding".
122
Other decis ions have implicitly held that the LSA appl ied to the onli ne newspaper article - see para. 37
above. Furthermore, to the extent Shtaif disagrees w ith Weiss it does not overrule it, and it remains
appropriate to di spose of this action on a Rule 2 1.0 I motion. See Janssen-Ortho, supra note 25, ABOA Tab
A-27 at paras. 34, 43-44.
123
Nelles v. Ontario, [ 1989] 2 SCR 170, 1989 Carswell Ont 415 ["Nelles"], RBOA Tab 18 at paras 1-6.
124
Reynolds v Smith, 2007 ONCA 166 ["Reynolds"], RBOA Tab 21 at para. 13.

23072975.2
 28

Court. The Court of Appeal for Ontario undertook a thorough review of authorities
in the course of a lengthy discussion of arguments on both sides of the issue .... To
send this matter back for trial without resolving the issue of prosecutorial
immunity would not be expeditious and would add both time and cost to an already
lengthy case.
Furthermore, I am of the view that the rules of civil procedure should not act as
obstacles to a just and expeditious resolution of a case ... 125

66. The Appellant relies on Portuguese Canadian Credit Union Ltd. v CUM!S

General ... ("Portuguese Credit Union"). 126 However, it is not applicable to the situation at

hand. In that case, the Rule 21 motion was brought before a statement of defence was filed

and there were no conceded facts on the motion. Further, as Justice Brown held: "I cannot

ascertain at this stage of the proceeding the scope of the dispute between the parties or the

nature or extent of their factual dispute". 127

67. This case involves a discrete legal issue, which requires no more than the

application of the jurisprudence and principles of statutory interpretation. There is no basis

for deferring this issue to trial.

PART V - ADDITIONAL ISSUES

A. It is Irrelevant that the Appellant was Self-Represented on the Motion

68. To the extent the Appellant relies on the fact that he was self-represented on the

motion as a basis for overturning Justice Trimble's decision, 128 such an argument must be

125
Nelles, supra note 123, RBOA Tab 18 at para. 3. The Supreme Court' s decision in Nelles was
distinguished by the Ontario Court of Appeal in Belanger & Associates ltd. v Stadium Corp. of Ontario Ltd.,
1991 Carswell Ont 735 (CA) [" Belanger"], RBOA Tab 4, where the questions of law at issue could not be
clearly isolated from the contested issues of fact, at para. 8.
126
20 I 0 ONSC 6107 ["Portuguese Credit Union"], ABOA Tab A-38.
127
Ibid., ABOA Tab A-38 at para. 30 [emphasis added]. See also paras 31 and 46.
128
Appellant's Factum, paras 4, 16.

23072975.2
 29

rejected. As Deputy Judge Ashby stated in Grajf v Mallick, "there is not one law for those

unrepresented and those with legal advice". 129

69. Furthermore, the Appellant himself claims to have "some legal knowledge from his

work at numerous legal firms and his work as a law clerk, process server and his work

vetting client files" , 130 and is an experienced litigant - having represented himself in at
13 1
least 15 different proceedings (including civil, criminal and human rights matters). In

addition, the Appellant explained to the Court on the motion below that he had been

receiving legal advice both prior to and after his interview with the Star, and that he had a

lawyer who "goes over [his] material". 132

B. The Appeal Should be Dismissed

70. The Appellant has done his best to turn a straightforward motion into a complicated

appeal. He has attempted to muddy the water with new and meritless issues; he has used

pages of his factum to "respond" to an issue explicitly not raised by the Star - whether

online publications are a "broadcast" under the LSA. All of this is a distraction from the

single issue before this Court, which was whether the motions judge was correct in finding

that the Article published by the Toronto Star on its website should receive the same

protections as the Article published in newsprint. The Respondents submit that the answer

is clearly yes. No other answer is reasonable, and no other answer maintains the protections

for free expression and freedom of the press entrenched in the LSA. Requiring a trial on

this entirely legal issue is unnecessary and would waste years of judicial and party

129
Graff, supra note 81, ABOA Tab A-I at para. 18; see also Brunet v. Canada Revenue Agency, 2011 FC
551 ["Brunet'], RBOA Tab 7 at para. I 0.
130
Statement of Claim, RC, Tab I at para. 12.
13 1
See list of reported cases in which the Appellant was involved as a litigant, at Schedule "C".
132
Motion Transcript, RC, Tab 3C, page 54, lines 29-30, page 49, lines 15-20.

23072975.2
 30

resources. As such, the Respondents request that this Court affirm the decision of Justice

Trimble and dismiss the appeal.

PART VI - ORDER REQUESTED

71. The Respondents respectfully request that the appeal be dismissed with costs.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 9th day of February, 2017.

Iris Fischer

h-v~
~ Kaley Pulfer

BLAKE, CASSELS & GRAYDON LLP

Barristers & Solicitors
199 Bay Street
Suite 4000, Commerce Court West
Toronto ON M5L 1A9

Iris Fischer LSUC #52762M

Tel: 416-863-2408
iris.fischer@blakes.com

Kaley Pulfer LSUC #584 l 3T

Tel: 416-863-2756
Fax: 416-863-2653
kaley.pulfer@blakes.com

Lawyers for the Defendants (Respondents)

23072975.2
 Court File No. C62056

COURT OF APPEAL FOR ONTARIO

BETWEEN:

DARREN JOHN
Plaintiff
(Appellants)

- and -

ALEX BALLING ALL, TORONTO STAR NEWSPAPERS LTD and

TORSTAR CORPORATION
Defendants
(Respondents)

CERTIFICATE

I estimate that 1 hour and 30 minutes wi ll be needed for my oral argument of the

appeal, not including reply. An order under 61.09(2) (original record and exhibits) is not

required.

DA TED AT Toronto, Ontario this 9th day of February, 2016.

Iris Fischer

/{__ r~
r aley Pulfer

23072975.2
 2

BLAKE, CASSELS & GRAYDON LLP

Barristers & Solicitors
199 Bay Street
Suite 4000, Commerce Court West
Toronto ON M5L 1A9

Iris Fischer LSUC #52762M

Tel : 416-863-2408
iris.fischer@blakes.com

Kaley Pulfer LSUC #58413T

Tel: 416-863-2756
Fax: 416-863 -2653
kaley.pulfer@blakes.com

Lawyers for the Defendants (Respondents)

23072975 .2
 SCHEDULE "A"

LIST OF AUTHORITIES

Case Law

1. Alberta Union of Provincial Employees v Lethbridge Community College, (2004]

SCJ No 24

2. Attorney General v Edison Telephone Co. ofLondon (1880), 6 QBD 244

3. Beardsley v. Ontario, (2001] O.J. No. 4574

4. Belanger & Associates Ltd. v Stadium Corp. of Ontario Ltd., 1991 Carswell Ont

735

5. British Columbia Telephone Co. v. R, (1992] FCJ No 27

6. Breeden v. Black, 2012 SCC 19

7. Brunet v. Canada Revenue Agency, 2011 FC 551

8. Canadian Broadcasting Corp. v SODRAC 2003 Inc. 2015 SCC 57

9. Charles v Canada (Attorney General), 134 DLR (4th) 452

10. CUPW v Quebecor Media Inc, 2015 ONSC 4511 ; 2016 ONCA 206

11. Frisina v. Southam Press Ltd. et al., 30 O.R. (2d) 65

12. Grossman v. CFTO-TV Ltd. , (1982] OJ No 3538; (1983] SCCA No. 463

13. Joseph v. Paramount Canada's Wonderland, 2008 ONCA 469

23072975.2
 2

14. Law v Whelan , 2008 CarswellOnt 4896

15. Lumberland Inc. v Nineteen Hundred Tower Ltd., [1977] 1 SCR 581

16. MCF Capital Inc. v Canadian Broadcasting Corp, 2003 MBQB 205

17. Murray Alter's Talent Associates Ltd. v. Toronto Star Newspapers Ltd., 1995

CanLII 11076

18. Nelles v. Ontario, [1989] 2 SCR 170

19. RV. 974649 Ontario Inc., 2001 sec 81

20. R v. F (PR), [2001 ] OJ No 5084

21. Reynolds v Smith, 2007 ONCA 166

22. Rizzo & Rizzo Shoes Ltd. (Re) , [1998] I SCR 27

23. Sandrabalan v Toronto Transit Commission (2009), 176 ACWS (3d) 1003

24. Sentinel-Review Co. v. Robinson, [1927] O.J. No. 87; [1928] S.C.R. 258

25. Siddiqui v Canadian Broadcasting Corp, [2000] OJ No 3638 (CA); [2000] SCCA.

No. 664

26. Vachon v Canada Revenue Agency, 2015 ONSC 6096

27. Web Offset Publications Ltd v Vickery, (1999), 43 OR (3d) 802 (CA); [1999] SCCA

No. 460

23072975 .2
 3

28. Willis v. Mathieu, 2016 ONSC 2639

29. World Sikh Organization of Canada v CBC/Radio Canada, 2007 CarswellOnt

7649

Secondary Sources

30. Downard, Peter. Libel, 3rd ed. (Markham, ON: LexisNexis Canada, 2014)

31. Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. (Markham, ON:

LexisNexis Canada, 20 14)

23072975.2
 SCHEDULE "B"

TEXT OF STATUTES, REGULATIONS & BY - LAWS

1. Canadian Charter of Rights and Freedoms, Constitution Act, 1982, Schedule B

to the Canada Act 1982 (UK), 1982, c. 11

Fundamental Freedoms

2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom

of the press and other media of communication;

2. Libel and Slander Act, R.S.O. 1990, c. L. 12

Definitions

1. (1) In this Act,

"newspaper" means a paper containing public news, intelligence, or

occurrences, or remarks or observations thereon, or containing only, or

principally, advertisements, printed for distribution to the public and

published periodically, or in parts or numbers, at least twelve times a year.

("journal")

What constitutes libel

2. Defamatory words in a newspaper or in a broadcast shall be deemed to be

published and to constitute libel.

23072975.2
 2

Notice of action

5. ( 1) 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.

Limitation of action

6. An action for a libel in a newspaper or in a broadcast shall be commenced within

three months after the libel has come to the knowledge of the person defamed, but,

where such an action is brought within that period, the action may include a claim

for any other libel against the plaintiff by the defendant in the same newspaper or

the same broadcasting station within a period of one year before the

commencement of the action.

Application of ss. 5 (1),

7. Subsection 5 (1) and section 6 apply only to newspapers printed and published

in Ontario and to broadcasts from a station in Ontario. R.S.O. 1990, c. L.12, s. 7.

Publication of name of publisher, etc.

8. (1) No defendant in an action for a libel in a newspaper is entitled to the benefit

of sections 5 and. unless the names of the proprietor and publisher and the address

of publication are stated either at the head of the editorials or on the front page of

the newspaper.

3. Libel and Slander Act, R.S.B.C. 1996, c. 263

23072975.2
 3

Defamation in broadcast

2. Defamatory words in a broadcast are deemed to be published and to constitute

libel.

4. Legislation Act, 2006, S.O. 2006, c. 21, Sched. F

Rule of liberal interpretation

64. (1) An Act shall be interpreted as being remedial and shall be given such fair,

large and liberal interpretation as best ensures the attainment of its objects.

5. Rules of Civil Procedure, R.R.O. 1990, Reg. 194

Rule 21 - Determination of an Issue Before Trial

Where Available

To Any Party on a Question of Law

21.01 (1) A party may move before ajudge,

(a) for the determination, before trial, of a question oflaw raised by a

pleading in an action where the determination of the question may dispose

of all or part of the action, substantially shorten the trial or result in a

substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable

cause of action or defence,

and the judge may make an order or grant judgment accordingly.

21.02 (2) No evidence is admissible on a motion,

23072975.2
 4

(a) under clause ( 1) (a), except with leave of a judge or on consent of the

parties;

(b) under clause ( 1) (b).

23072975.2
 SCHEDULE "C"

DARREN JOHN - PRIOR PROCEEDINGS

Civil Proceedings

John v. Bartels, 2015 ONSC 4706

John v. Cusack, 2015 ONSC 5004

John v. Peel Regional Police, 2015 CarswellOnt 17836 (Ont. Sup. Ct. J.)

John v. Peel Police, 2016 ONSC 2013

John v. Peel Police, 2016 ONSC 2012

John v. Peel Regional Police, 2016 ONSC 2014

John v. Peel Regional Police, 2016 ONSC 2016

John v. Syring, 2015 ONSC 4421

John v. Toronto Police, 2016 ONSC 2015

John v. Kiefer, 2016 ONSC 2461

John v. Ontario (Office of the Independent Police Review Director), 2017 ONSC 42

Criminal Proceedings

R. v. John, 2008 ONCA 791

R. v. John, 2013 ONCJ 765

R. v. John, 2014 ONCA 631

Human Rights Tribunal of Ontario Proceedings

John v. Alexanian Law Firm, 2015 HRTO 1375

John v. Toronto Police Services Board, 2016 HRTO 640

23072975.2
 DARREN JOHN -and- ALEX BALLINGALL et al. Court File No. C62056
Plaintiff (Appellant) Defendants (Respondents)

COURT OF APPEAL FOR ONTARIO

Proceeding commenced at Toronto

FACTUM OF THE
DEFENDANTS/RESPONDENTS

BLAKE, CASSELS & GRAYDON LLP

Barristers & Solicitors
199 Bay Street
Suite 4000, Commerce Court West
Toronto ON M5L 1A9

Iris Fischer LSUC #52762M

Tel: 416-863-2408
iris.fischer@blakes.com

Kaley Pulfer LSUC #58413T

Tel: 416-863-2756
Fax: 416-863-2653
kaley.pulfer@blakes.com

Lawyers for the Defendants (Respondents)

23072975.2