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 PLAINTIFF (APPELLANT)

PART I - OVERVIEW

1. This is an appeal from the decision of the motion judge dismissing the plaintiffs action

for defamation, which arose from an article posted by the defendants on the Internet.

2. The motion judge misinterpreted the jurisprudence under Ontarios Libel and Slander

Act, R.S.O. 1990, c. L. 12 (the Act) by holding that the Act applies to defamation

posted on the Internet. There is no basis in the jurisprudence for this finding and it is

inconsistent with the reasonable interpretation of the Act.

3. The motion judge also confused a motion under the applicable Rule 21.01(1)(a), being a

determination of an issue of law, with a motion for summary judgment, and applied the

wrong principles to the admissibility of evidence, leading to the wrong conclusion.

4. The motion judges incorrect decision created a precedent that has far reaching

implications for the law of defamation in Ontario. If upheld by this Honourable Court, it
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will unfairly deny access to justice not only to plaintiff, who was self-represented on the

motion, but also to other plaintiffs in online defamation claims.1

PART II THE FACTS

5. The motion under appeal is a motion for a determination of a question of law, in which

evidence is not permitted, except with consent of the parties or leave of the Court. As

discussed below, the motion judge incorrectly admitted evidence at the motion and made

findings of fact on the evidence. Thus, some of the facts that may be relevant to this

appeal are unsupported by a properly admitted record. This, in and of itself, should be

grounds for granting this appeal That being said, the following facts are not in dispute in

this appeal.

6. The plaintiff, Darren John, is a rapper.

Reference: Statement of Claim at para. 4, Appeal Book and Compendium at tab 5

7. The defendant Alex Ballingall (hereinafter, Ballingall) is a staff reporter for the

defendant, the Toronto Star Newspapers Ltd. (hereinafter, the Toronto Star).

According to the Statement of Defence, the defendant Torstar Corporation is a parent

company of the Toronto Star.

Reference: Statement of Defence at paras. 3 & 4, Appeal Book and Compendium at tab 6

8. On December 4, 2013, the Toronto Star posted an article, written by Ballingall, on its

website Thestar.com (the Article). The title of the Article was: Rapper says death

threat just a lyric. The content of the Article described criminal proceedings in which

the plaintiff was charged with criminal harassment and threatening death, arising out of

lyrics in some of his songs. Prior to writing the Article, Ballingall interviewed the

plaintiff.

1
Indeed, the defendants have successfully relied on the motion judges decision in summarily dismissing an
online defamation claim in at least one action. Graff v. Mallick, 2016 unreported, (Ont. S.C.J., Small Claims
Ct.), Appellants Book of Authorities at tab A-1
 3

Reference: Article posted on the website Thestar.com dated Dec. 4, 2013 entitled Rapper says
death threat just a lyric, Appeal Book and Compendium at tab 9 -A

9. In the statement of claim, the plaintiff pleads, inter alia, that the words rapper says death

threat just a lyric are false and defamatory.

Reference: Statement of Claim, Appeal Book and Compendium at tab 5

10. The Toronto Star published a different version of the Article in its printed daily

newspaper The Toronto Star. In the printed version, the title of the Article read Trial

to Decide if Rappers Rhyme is a Crime.

Reference: Statement of Claim, Appeal Book and Compendium at tab 5

11. Only the online version of the Article was at issue on the motion under appeal.

12. On April 15, 2015, the plaintiff wrote an email to Ballingall complaining about the online

version of the Article and demanding that it be removed or corrected.

Reference: Email from amysolad@gmail.com to aballingall@gmail.com dated April 15, 2015,

Appeal Book and Compendium at tab 9 D

13. On April 28, 2015, the plaintiff issued the Statement of Claim.

Reference: Statement of Claim, Appeal Book and Compendium at tab 5

14. On April 29, 2015, the Toronto Star removed the words Rapper says death threat just a

lyric from the title of the online version of the Article, and replaced it with a title

identical to the one that appeared in the printed version of the Article.

Reference: Print-out from Thestar.com entitled Trial to decide if rappers rhyme is a crime
marked as Exhibit 1 to Darren Johns unsworn affidavit, Appeal Book and
Compendium at tab 9 E

The Motion under Appeal

15. The defendants, represented by counsel, brought a motion on March 23, 2016 for, inter

alia, an Order dismissing the action pursuant to Rule 21.01(1)(a) of the Rules of Civil
 4

Procedure, on the basis that it is statute-barred by virtue of the notice and limitation

provisions of the Act.2

Reference: Notice of Motion of the Defendants at p. 2, Appeal Book and Compendium at tab 7

16. At the motion, the plaintiff was self-represented.

17. In support of their motion, the defendants filed a motion record which contained no

sworn evidence. Rather, the defendants filed the following loose-leaf documents as

evidence:

a) A copy of an Error Report dated, December 5, 2013 (hereinafter, the Error

Report). The report is an internal email from The Stars webmaster to its public
editor, which reports on an email purportedly received by the webmaster from the
plaintiff, complaining about the online version of the Article. Significantly, there is
no evidence of the original alleged email from the plaintiff;

b) A copy of an email from the plaintiff (amysolad@gmail.com) to Ballingall

(aballingall@thestar.ca) dated April 15, 2015; and

c) A copy of an email from the plaintiff to publiced@thestar.ca, dated April 18, 2015.

Reference: Appellants Exhibit Book, at tabs 1-A, 1-B & 1 C

18. Prior to the motion, the defendants did not obtain the plaintiffs consent to admit these

documents into evidence.

19. At the hearing of the motion, the plaintiff sought and obtained the motion judges leave

to file his own affidavit, which was unsworn.

Reference: Transcript of the motion before Trimble J, dated March 23, 2016, at p. 11, paras. 15
20, Appeal Book and Compendium, at tab 8 A;
Affidavit of Darren John (unsworn) and the exhibits attached thereto, Appellants
Exhibit Book at tabs 2 to 2-E

The Motion Judges Decision

2
Although the Defendants notice of motion lists Rules 21.01(1)(a) and 21.01(1)(b) as alternative grounds for
the motion, in his endorsement, the motion judge based his findings only on Rule 21.01(1)(a).
 5

20. In his endorsement, the motion judge dismissed the plaintiffs claim because he found

that the notice and limitation provisions of Act applied to defamation posted on the

Internet.

Reference: The Endorsement and Reasons for Decision of Trimble J., dated April 1, 2016, at para.
16 Appeal Book and Compendium at tab 4

21. In reaching this conclusion, the motion judge did not consider the wording of the relevant

sections of the Act, nor did he apply any principles of statutory interpretation, a necessary

and required analysis in making such a finding of law.

22. Rather, the motion judge considered two conflicting decisions of this Honourable Court

on the issue Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405 (hereinafter

Shtaif) and Weiss v. Sawyer (2002), 61 OR (3d) 526 (C.A.) (hereinafter Weiss). The

motion judge then incorrectly chose to follow the Weiss decision, which pre-dated the

Shtaif decision by 13 years, and which was overruled by Shtaif (as discussed below). The

motion judge concluded that the weight of the jurisprudence favours the view that an

internet posting or broadcast is covered by the Act, unless specific facts dictate

otherwise.

Reference: Ibid. at paras. 13 20;

Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405, Appellants Book of Authorities
[hereinafter, BOA] at tab A-2;
Weiss v. Sawyer (2002), 61 OR (3d) 526 (C.A.), BOA at tab A-3

23. Having found that the notice and limitation provisions of the Act apply to the online

version of the Article, the motion judge went on to consider whether the plaintiff had

complied with the notice and limitation requirements of sections 5(1) and 6 of the Act.

Reference: Ibid. at paras. 21 - 34

24. The motion judge accepted the Error Report into evidence, without considering whether

or not it was admissible, even though it was submitted into the record by the defendants

without a sworn affidavit and without the informed consent of the plaintiff. The motion
 6

judge appears to have incorrectly treated the Error Report, which is an internal email of

The Star, as an email from the plaintiff to The Star. The motion judge then proceeded to

make two crucial findings of fact on the Error Report:

a) that the Plaintiff discovered the existence of the online Article on December 5, 2013;

and

b) that the Error Report did not constitute proper libel notice under the Act.

Reference: Error Report dated December 5, 2013, Appeal Book and Compendium at tab 9 C;
The Endorsement of Trimble J, dated April 1, 2016 paras. 23 -31, Appeal Book and
Compendium at tab 4

25. The motion judge also found that the email sent by the plaintiff to Ballingall on April 15,

2015 constituted proper libel notice under the Act.

Reference: Email from amysolad@gmail.com to aballingall@gmail.com dated April 15, 2015,

Appeal Book and Compendium at tab 9 D;
The Endorsement of Trimble J, dated April 1, 2016, para. 32, Appeal Book and
Compendium at tab 4

26. The motion judge then dismissed the plaintiffs action on the basis of Rule 21.01(1)(a),

without granting leave to amend the pleading, because he found that:

a) the notice under the Act was served on April 15, 2015, which in his view was outside

the limitation period of 6 weeks imposed by section 5(1) the Act; and

b) the statement of claim was issued on April 28, 2015, which in his view was outside

the limitation period of 3 months imposed by section 6 the Act.

Reference: The Endorsement and Reasons for Decision of Trimble J., dated April 1, 2016, at
para. 16, Appeal Book and Compendium at tab 4

PART III ISSUES AND ARGUMENT

27. There are three main issues on this appeal:

1) Whether the motion judge erred in finding that the notice and limitation provisions

of the Act apply to the online version of the Article?

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2) In the alternative, if the notice and limitation provisions of the Act apply to the online

version of the Article, whether the motion judge erred in finding that the action was

statute-barred?

3) In the further alternative, whether the motion judge incorrectly applied Rule

21.01(1)(a) to dismiss the plaintiffs claim?

28. For the following reasons, the plaintiff respectfully submits that the learned motion judge

erred in respect of all three issues and that his order should be set aside and the motion

dismissed.

Standard of Review

29. The standard of review of a motion judge's order under Rule 21.01(1)(a) is one of

correctness, as these orders determine questions of law only. Consequently, no deference

is owed on this appeal to the motion judge's analysis and decision.

Reference: Rules of Civil Procedure, R.R.O., 1990, Reg. 194, sr. 21.01(1)(a), BOA at tab B-1;
Housen v. Nikolaisen, 2002 SCC 33 at para. 8, BOA at tab A-4

ISSUE #1: The Notice and Limitation Provisions of the Act Do Not Apply to the
Online Version of the Article

30. The most significant issue under appeal is whether the notice and limitation provisions

of the Act apply to the online version of the Article.

31. At paragraph 16 of his endorsement, the motion judge made the following incorrect and

overly-broad finding on this issue:

In my view, the weight of jurisprudence favours the view that an internet posting
or broadcast is covered by the Libel and Slander Act, unless specific facts dictate
otherwise.

Reference: The Endorsement of Trimble J, dated April 1, 2016, paras. 23 -31, Appeal Book and
Compendium at tab 4

32. As particularized below, this finding is incorrect because, inter alia:

A. The Act does not apply to defamation posted on the Internet; or

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B. Alternatively, the prevailing jurisprudence requires a trial with a full evidentiary

record, including expert evidence, to determine this issue and there was no evidence

on the motion that the Act applied to the online version of the Article.

A. The Act does not Apply to Defamation Posted on the Internet

33. In Shtaif, this Honourable Court summarized the challenge of applying the Act in the

context of the Internet:

The question whether or in what circumstances an internet publication is subject

to ss. 5(1) and 6 of the Act is a difficult one. The Act was drafted to address alleged
defamation in traditional print media and in radio and television broadcasting. It
did not contemplate this era of emerging technology, especially the widespread
use of the internet. The application of the Act to internet publications will have to
come about by legislative amendment or through judicial interpretation of
statutory language drafted in a far earlier era. [emphasis added]

Reference: Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405 at para. 20, BOA at tab A-2

Overview of the Relevant Sections of the Act

34. Section 5(1) of the Act requires notice of any action for libel in a newspaper or in a

broadcast to be delivered within 6 weeks, as follows::

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.

Reference: Libel and Slander Act, R.S.O. 1990, c L. 12, ss. 5(1), BOA at tab B-2

35. Section 6 of the Act establishes a strict and relatively short limitation period of 3 months

for bringing an action for libel in a newspaper or broadcast, as follows:

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.

Reference: Libel and Slander Act, R.S.O. 1990, c L. 12, s. 6, BOA at tab B-2
 9

36. Section 1(1) of the Act defines broadcast and newspaper as follows:

broadcasting means the dissemination of writing, signs, signals, pictures and

sounds of all kinds, intended to be received by the public either directly or through
the medium of relay stations, by means of,
(a) any form of wireless radioelectric communication
utilizing Hertzian waves, including radiotelegraph
and radiotelephone, or
(b) cables, wires, fibre-optic linkages or laser beams,
and broadcast has a corresponding meaning; (radio diffusion outl diffusion,
radio diffuser outl diffuser)

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.

Reference: Libel and Slander Act, R.S.O. 1990, c L. 12, ss. 1(1), newspaper, broadcasting,
BOA at tab B-2

37. Section 7 of the Act geographically limits the application of the Act to Ontario:

Subsection 5(1) and section 6 apply only to newspapers printed and published in
Ontario and to broadcasts from a station in Ontario.

Reference: Libel and Slander Act, R.S.O. 1990, c L. 12, s. 7, BOA at tab B-2

The Principles of Statutory Interpretation

38. Pursuant to the modern and principled approach to statutory interpretation, the relevant

sections of the Act are to 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 the Legislature.

Reference: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, at para. 26, BOA at tab A-5

39. It is presumed that the provisions of the Act are meant to work together harmoniously,

both logically and telelogically, as parts of a functioning whole. The interpretation

provided to a statutory provision must produce consistency both within the statute itself,

and with other legislation dealing with the same subject matter.

Reference: Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477 at para. 41 & 43, BOA at
tab A-6
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40. Statutory provisions which restrict rights of action attract a stricter interpretation and any

ambiguity should be resolved in favour of the person whose rights of action are being

truncated. Because section 5(1) and 6 of the Act restrict the plaintiffs rights of action

and have very short limitation periods, they should be interpreted narrowly and any

ambiguity should be interpreted in favour of the plaintiff.

Reference: Prof. R. Sullivan, Sullivan on the Construction of Statutes, 6th Ed., at p. 499 (2014,
LexisNexis Toronto), BOA at tab A-7;
Berardinelli v. Ontario Housing Corp., 1978 CarswellOnt 462 (S.C.C.) at para. 10,
BOA at tab A-8

The Legislature did not intend to Apply the Act to the Internet

41. The relevant sections of the Act find their origin in the 19th century and have been

amended several times to reflect, inter alia, technological advances in the media:

a) Section 5(1) of the Act, which establishes the requirement to give a libel notice, was
first enacted in 1887.

Reference: An Act Respecting the Law of Libel, (1887) 50 Vic. c. 9, ss. (1(2), BOA at tab B-3

b) Section 6 of the Act, which imposes a 3 months limitation period, was first enacted
in 1894.

Reference: An Act Respecting the Law of Libel, (1894) 57 Vic. c. 27, s. 4, BOA at tab B-4

c) The definition of newspaper was first enacted in 1894.

Reference: Ibid. at s. 2 newspaper, BOA at tab B-4

d) Section 7, which limits the application of the Act to newspapers printed and
published in Ontario was first enacted in 1909.

Reference: An Act Respecting Actions for Libel and Slander (1909), 9 Edward VII c. 40, s. 18 BOA
at tab B-5

e) In 1958, the definition of broadcast was added to the Act.

Reference: The Libel and Slander Act 1958, S.O. 1958, c. 51 ss. 1(a) broadcasting; BOA at tab B-
6

f) The definitions of newspaper and broadcasting were last amended in 1980 to

reflect the current versions of those definitions.

Reference: An Act to Amend the Libel and Slander Act, S.O. 1980, c. 35, s. 1, BOA at tab B-7
 11

42. The Act was amended as recently as November 3, 2015, through the passing of the

Protection of Publication Participation Act, 2015 (commonly referred to as the Anti-

SLAPP Legislation), which amended section 25 of the Act to expand the defence of

qualified privilege. It made no other amendments to the Act and, significantly, no

amendments to reference to the Internet.

Reference: Protection of Public Participation Act, 2015, S.O. 2015 C.23, s. 4, BOA at tab B-8

43. If the Legislature had intended to include a particular thing within its legislation, it would

have referred to that thing expressly. The Legislatures failure to explicitly mention the

thing forms the grounds for inferring that it was deliberately excluded. When a provision

specifically mentions one or more items, but is silent with respect to other comparable

items, it is presumed that this silence is deliberate and reflects an intention to exclude the

items that are not mentioned.

Reference: Prof. R. Sullivan, Sullivan on the Construction of Statutes, 6th Ed. At p. 248 (2014,
LexisNexis Toronto), BOA at tab A-9

44. The Legislature did not intend for the Act to apply to the technology of the Internet.

Specifically:

a) Sections 5(1), 6 and 7, and the definitions of newspaper and broadcast, were

enacted in a time when the technology of the Internet did not exist and could not

have been contemplated by the Legislature; and

b) The Legislature amended the Act several times to reflect technological

advancements, including the addition of broadcast in 1958 and the amendments

to the definitions of newspaper and broadcast in 1980. Yet, to date, the

Legislature has not made any amendments to the Act to reflect the technology of

the Internet, even though the Act was amended as recently as November 2015. Had

the Legislature intended the relevant sections of the Act to apply to the Internet, it
 12

would have done so by 2016, more than two decades since the Internet came into

use.

The Definitions of Newspaper and Broadcast do not include the Internet

45. Furthermore, the technology of the Internet does not fit within the exhaustive definitions

of newspaper and broadcast in the Act. Exhaustive definitions are introduced by the

verb means, declare the complete meaning of the defined term, and displace whatever

meanings the defined term might otherwise bear in ordinary or technical usage. Where a

statute already provides an exhaustive definition of words, there can be no departure

from this meaning established by the Legislature. An exhaustive statutory definition in

the Act itself deprives the Court of any choice of alternate interpretation.

Reference: Prof. R. Sullivan, Sullivan on the Construction of Statutes, 6th Ed. At p. 72 (2014,
LexisNexis Toronto), BOA at tab A-10

The Definition of Newspaper:

46. Newspaper is exhaustively defined in the Act 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 least twelve times a year [emphasis added]. When

enacted, it was intended to apply to the traditional printing press.

Reference: The Libel and Slander Act, R.S.O. 1990, c. L.12, ss. 1(1) newspaper, BOA at tab B-2

47. The word paper should be given its plain and ordinary meaning of physical paper

material. The Oxford English Dictionary defines paper, in pertinent part, as follows:

Material manufactured in thin sheets from the pulp of wood or other fibrous
substances used for writing or printing on or as wrapping material.

Reference: The Concise Oxford English Dictionary, 12th ed., s.v. paper, BOA at tab A-11

48. This is further evident in the words printed for distribution to the public, since only

paper material can be printed for distribution to the public.

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49. Moreover, the words published periodically, or in parts or numbers, at least twelve

times a year restrict the timing of the publication. This restriction cannot be applied to

the Internet, which is published continuously.

50. Since the online version of the Article was not published on paper material, was not

printed by the defendants for the purpose of distribution to the public and was not

published periodically, or in parts or numbers, at least twelve times a year, it could not

meet the definition of newspaper under the Act.

The Definition of Broadcast:

51. The Act contains a technical and exhaustive definition of broadcast, which, when

passed in 1958, was intended to cover publications on the radio and television.

52. The Courts have repeatedly held that, due to the technical language of broadcast, expert

evidence is required in order for the Court to determine whether any technology,

including the Internet, meets the definition of broadcast.

Reference: Romano v. DOnofrio, 2005 CarswellOnt 6725 (C.A.), at paras. 7 9, BOA at tab A-12;
Bahlieda v. Santa, 2003 CarswellOnt 4012 (C.A.), at para. 6, BOA at tab A-13;
Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405 at paras. 25 - 26, BOA at tab A-
2;
St. Lewis v Rancourt, 2015 ONCA 513 at para. 8, BOA at tab A-14;
Kim v. Dongpo, 2013 ONSC 442 (S.C.J.) at para. 25, BOA at tab A-15;
Warman v Fromm, 2007 CarswellOnt 9648 (S.C.J.), at paras. 76 92, BOA at tab
A-16;
Warman v. Grosvenor, 2008 CarswellOnt 6629 (S.C.J.), at paras. 44 & 45, BOA at
tab A-17

53. In the herein motion, there was no evidence, let alone expert evidence, that the Internet

met this definition and therefore the motion judge could not have found that the definition

of broadcast in the Act included the Internet. In fact, in his oral comments during the

motion, the judge indicated that he assumed that an email is a broadcast, without any

evidentiary basis to support such broad and sweeping assumption.

Reference: Transcript of the motion before Trimble J, dated March 23, 2016, at p. 1, paras. 5 20
 14

54. Even in the absence of expert evidence, this Honourable Court should nevertheless find

that the definition of broadcast in the Act does not include the technology of the

Internet, which has been described by the Supreme Court of Canada as follows:

The Internet operates by means of a series of protocols that enable higher level
applications such as the World Wide Web to operate. Transmission control
protocol (TCP) is the most common protocol and it controls most of the
applications used on the Internet. The TCP resides in both host server and end
user computers and it controls the sending and receipt of packets transmitted over
the Internet. However, routers and other intermediate points on the Internet have
no involvement in TCP operation.

A content provider may store files on its own computer, but it may also purchase
space on a host server operated by an Internet Service Provider under
commercial arrangements that include storing, making available and transmitting
Web site content to end users. Once a musical work or other content has been
posted on a host server, it is possible for any person with a computer and an
arrangement with an Internet Service Provider to access the work on demand from
anywhere in the world via the Internet.
.
The host server breaks the content down into units of data called packets
consisting of a series of bytes (typically no more than 1500). Each packet has a
destination address attached to it in the form of a header. The host server
transmits the packets to a router which reads the address in the packets header
and performs computations to determine the most appropriate transmission route
over which to send the packet to its destination. The router does not access the
data portion of the packet. The various packets are forwarded from router to router
and may follow different transmission routes along the way until they reach the
Internet Service Provider at the receiving end which, under contract to the end
user, transmits the packets to a computer operated by the end user. The result is
the reconstitution on the end users computer of all that is required to view or, in
the case of music, to play the work, either at that time or later if the work is
saved on the end users computer.

Reference: Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of
Internet Providers, [2004] 2 S.C.R. 427 at paras 17, 18 & 20, BOA at tab A-18

55. Such a finding is supported by the Supreme Court of Canada in Reference re

Broadcasting Act, where the Court found that an Internet communication was not

necessarily a broadcast, and refused to include Internet service providers within the

statutory definition of broadcasting in the Federal Broadcasting Act.

Reference: Reference re Broadcasting Act, 2012 SCC 4, paras 3-7, BOA at tab A-19
Broadcasting Act, S.C. 1991, c. 11, ss. 2(1) broadcasting, BOA at tab B-9
 15

The Geographical Limitations of the Act do not apply to the Internet

56. Section 7 expressly restricts the application of sections 5(1) and 6 of the Act to

newspapers printed and published in Ontario and to broadcasts from a station in

Ontario [emphasis added].

Reference: The Libel and Slander Act, R.S.O. 1990, c. L.12, s. 7, BOA at tab B-2

57. The words newspapers printed and published in Ontario in section 7 of the Act

illustrate that the definition of newspaper under the Act cannot reasonably include an

online publication. Otherwise, it would require the defendants to establish that they had

printed the online version of the Article in Ontario (on a computer printer) and then

circulated the printed version of the online Article to the public. Such an interpretation

would be absurd in the context of online publications.

58. Similarly, assuming the definition of broadcast under the Act includes an online

publication (which is not admitted but expressly denied), it is unclear how a defendant

can prove that the online publication was broadcast from a station in Ontario. For

example, would it need to prove that the content was uploaded to the website from

Ontario, or would it be required to demonstrate that the defendants servers are located

in Ontario? These undetermined issues of law and fact can only be decided on a full

evidentiary record, including expert evidence.

Reference: Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405 at para. 24, BOA at tab A-2;
St. Lewis v Rancourt, supra, at para. 8, BOA at tab A-14;
Kim v. Dongpo, supra, at para. 25, BOA at tab A-15;
Bahlieda v. Santa, supra at para. 6, BOA at tab A-13;
Warman v Fromm, supra at para. 85, BOA at tab A-16;
Warman v. Grosvenor, supra at para. 47, BOA at tab A-17

59. In the instant case there was no evidence before the motion judge as to whether the online

Article was printed and published in Ontario or broadcast from a station in Ontario

(e.g., the location of The Stars servers) and the motion judge did not consider this
 16

necessary issue at all in his reasons.3 The motion judge therefore further erred by failing

to consider whether the online Article was printed and published in Ontario or

broadcast from a station in Ontario.

Section 8(1) of the Act and the Internet

60. Section 8(1) of the Act expressly limits the defendants right to rely on the notice and

limitation provisions of the Act:

No defendant in an action for a libel in a newspaper is entitled to the benefit of

sections 5 and 6 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.

Reference: Libel and Slander Act, R.S.O. 1990 c. L. 12, at ss. 8(1), BOA at tab B-2

61. Section 8(1) provides additional context to the interpretation of the definition of

newspaper. An online publication cannot be a newspaper because it does not have

an editorial page or front page.

62. Moreover, the defendants have the burden to establish compliance with section 8(1). If

the defendants do not comply with its statutory requirement, the defendants cannot seek

to benefit from the limitation periods imposed by sections 5 and 6(1).

Reference: Dingle v World Newspaper, 1918 CarswellOnt 14 (S.C.C.) at para. 7, BOA at tab A-20

63. In Elliott v. Freisen, this Honourable Court qualified the defendants requirements to

comply with section 8(1) as follows:

In our opinion, a defendant in an action for libel against a newspaper is entitled

to the benefit of s. 5(1) and 6 of the Libel and Slander Act if the names of the
proprietor and publisher, as well as the address of publication of the newspaper
are given and there is substantial compliance with the spirit of s. 8(1) so that the
complainant is able to give the requisite notice. It is, of course, necessary that this
information be contained in bold character on the editorial page with some
attempted compliance at the head of the editorial page. [emphasis added].

Reference: Elliott v. Freisen, 1984 CarswellOnt 350 (C.A.) at para. 13, BOA at tab A-21

3
Indeed, the Stars servers appear to be located outside of Ontario.
 17

64. In the herein motion, the defendants did not adduce any evidence to establish that they

complied with the requirements of section 8(1), namely that the names of the proprietor

and publisher, as well as the address of publication of the newspaper, were contained in

bold character on the front page or editorial page of the online Article. Thus, the

defendants should not have succeeded on the motion. Indeed, the motion judge did not

consider section 8(1) in his reasons at all. Thus, the motion judge further erred in

dismissing the plaintiffs action.

There is no Presumption of Publication on the Internet

65. To succeed in an action for defamation, the plaintiff must prove on a balance of

probabilities that the defamatory words were published, that is, that they were

communicated to at least one person other than the plaintiff.

Reference: Crookes v. Wikimedia Foundation Inc., 2011 SCC 47, at para. 1, Abella C.J.C., BOA at
tab A-22

66. Section 2 of the Act creates a presumption of publication for defamatory words published

in a newspaper or broadcast, as follows:

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

published and to constitute libel. [emphasis added]

Reference: Libel and Slander Act, R.S.O. 1990 c. L. 12, s. 2, BOA at tab B-2

67. Thus, in actions that are subject to the application of the Act, the plaintiff is not required

to prove publication.

68. In Crookes v Wikimedia Foundation Inc., the Supreme Court of Canada considered the

parallel section of the British Columbia Libel and Slander Act (hereinafter, the B.C.

Act) in the context of the Internet, and concluded that there is no presumption of

publication in relation to material published on the Internet. A plaintiff in an online

defamation claim must prove that at least one person has downloaded, viewed or

accessed the defamatory content online.

 18

Reference: Crookes v. Wikimedia Foundation Inc., surpa, at para. 14 (Abella C.J.C.) & para. 108
(Deschamps C.J.C., concurring), BOA at tab A-22

69. Several Ontario trial level decisions have relied on the Supreme Court of Canadas

decision in Crookes to find that, in Ontario, there is no presumption of publication on the

Internet.

Reference: Elfaranwani v International Olympic Committee & Ethics Commission, 2011 ONSC 6784
(S.C.J.) at para. 34, BOA at tab A-23;
Bernstein v Poon, 2015 ONSC 155 (S.C.J.) at paras. 90 & 91, BOA at tab A-24;
Craven v. Chumra, 2013 ONSC 1552 (S.C.J.) at paras. 24 & 25, BOA at tab A-25;
Smith v Baglow, 2015 ONSC 1175 (S.C.J.), BOA at tab A-26

70. The motion judges finding that the Act applies to the Internet is therefore also incorrect

because it is contrary to the Supreme Court of Canadas decision in Crookes, and the

Ontario courts decisions that followed it.

The British Columbia Libel and Slander Act

71. The Ontario Libel and Slander Act should also be interpreted consistently with the B.C.

Libel and Slander Act, which contains definitions that are similar to the definitions of

newspaper and broadcast in the Ontario Act. As indicated above, in the Crookes

case, the Supreme Court of Canada considered the B.C. Act in the context of online

publications. In holding that the B.C. Act did not apply to publications on the Internet,

the Court essentially found that those definitions did not include the technology of the

Internet.

Reference: Libel and Slander Act, R.S.B.C. 1996, c. 263, s. 1 broadcast and public newspaper
or other periodical publication, BOA at tab B-10;
Crookes v. Wikimedia Foundation Inc., surpa, at para. 14 (Abella C.J.C.) & para. 108
(Deschamps C.J.C., concurring), BOA at tab A-22

B. The Motion Judges Decision is Contrary to the Prevailing Jurisprudence

72. In the alternative, the motion judge erred because he misinterpreted the prevailing

jurisprudence and there was no evidence on the motion to support his conclusion that the

Act applied to the online version of the Article.

 19

Overview of the Jurisprudence

Pre-Shtaif Decisions

73. Prior to this Honourable Courts decision in Shtaif, there were two prevailing and

conflicting Appellate decisions on the issue of whether the Act applied to defamation

posted on the Internet:

a) In Bahlieda v. Santa, (hereinafter, Bahlieda), which was decided in 2003, this

Honourable Court held that a trial with a full evidentiary record, including expert

evidence, is required in order to determine whether the Act applies to defamation

posted online. This principle was followed by several subsequent Court decisions.

Reference: Bahlieda v. Santa, supra, at para. 6, BOA at tab A-13;

Followed by:
Warman v Fromm, supra, at paras. 76 92, BOA at tab A-16; and
Warman v. Grosvenor, supra, BOA at tab A-17

b) In Weiss, which was decided in 2002, this Honourable Court held, albeit in obiter,

that the word newspaper is broad enough to include an online publication. The

Court in Weiss did not consider whether an online publication is printed and

published in Ontario and refused to consider whether the word broadcast applied

to the Internet, because of the lack of evidence on that issue.

Reference: Weiss v. Sawyer, supra at para. 5, BOA at tab A-3;

Followed by: Janssen-Ortho Inc. v. Amgen Canada Inc., 2005 CarswellOnt 2265 (C.A.)
at para. 41, BOA at tab A-27

The Shtaif Decision

74. The issue came before this Honourable Court again in Shtaif in 2013, more than a decade

after the Weiss and Bahlieda decisions.

75. Similar to the herein action, Shtaif involved an action for defamation in an article

published by the magazine Toronto Life on its website (as well as in the printed version

of the magazine). The defendants brought a motion for summary judgement under Rule

20 to dismiss the claim on the basis that the online version was statute-barred by the Act.
 20

The motion judge interpreted the relevant sections of the Act in the context of the Internet

and concluded that the online version of the article was not a newspaper printed and

published in Ontario or a broadcast from a station in Ontario.

Reference: Shtaif v. Toronto Life Publishing Co., 2011 ONSC 6732 (S.C.J.), at para. 16 19, BOA
at tab A-28

76. On appeal, this Honourable Court considered its conflicting decisions in Weiss and

Bahlieda and, in so doing, pointed out the unstable foundation upon which the Weiss

decision was based:

21. Our court has grappled with the question in two decisions: Weiss v. Sawyer
(2002), 61 O.R. (3d) 526 (Ont. C.A.) and Bahlieda v. Santa (2003), 68 O.R. (3d)
115 (Ont. C.A.).

22 In Weiss, the evidence conflicted on whether the publication an allegedly

defamatory letter was published over the internet. Assuming that it was,
Armstrong J.A. wrote, at para. 24, that he thought the word paper in s. 1(1) of
the Act was broad enough to include a newspaper published on the internet. He
did not discuss whether the internet publication was published in Ontario though
implicitly he held that it was, as he found that the notice requirement in s. 5(1) of
the Act applied. Armstrong J.A. did not decide whether the internet publication
was also a broadcast as there was no evidence to make that determination.

23. In Bahlieda, this court held that in the light of the conflicting evidence in
the case, the question whether an internet publication was a broadcast from a
station in Ontario was an issue for trial. The panel said, at para. 6: Summary
judgment applications are not a substitute for trial and thus will seldom prove
suitable for resolving conflicts in expert testimony particularly those involving
difficult, complex policy issues with broad social ramifications. [emphasis
added]

Reference: Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405 at paras. 21-23, BOA at tab A-2

77. This Honourable Court then proceeded to reject the reasoning in Weiss and to adopt the

reasoning in Bahlieda:

In this case, I think the sensible course is that adopted in Bahlieda: to leave to trial
the question whether the internet version of the article is a newspaper published in
Ontario or a broadcast from a station in Ontario. I am not satisfied that the
evidentiary record before us is sufficient to decide these questions, which have
broad implications for the law of defamation. [emphasis added]
Reference: Ibid at para. 24.
 21

78. The Court in Shtaif concluded:

Therefore, I would hold that the issue whether the claim for libel in the internet
version of the article is subject to ss. 5(1) and 6 of the Act is a genuine issue
requiring a trial. [emphasis added]

Reference: Ibid. at para. 26

79. As an intermediate court of appeal, this Honourable Court is ordinarily bound to follow

its past decisions. However, when this Honourable Court considers one of its prior

decisions to be erroneous, or to rest on an unstable foundation, this Court may overrule

that past decision.

Reference: Fernandes v. Araujo, 2015 ONCA 57, at paras. 45 47, BOA at tab A-29

80. Furthermore, when two decisions of an appellate level court conflict, the principles of

stare decisis require a lower court judge to follow the more recent analysis, particularly

when the prior decision was considered and rejected by the subsequent decision.

Reference: Nolevaux v. King and John Festival Corp., 2013 ONSC 5451 (S.C.J.) at para. 19, BOA
at tab A-30, citing Woolfrey v. Piche, [1958] O.J. No. 171 (Ont. C.A.) at para. 8 & Port
Arthur (City) v. Fort William (City), [1953] O.W.N. 297 (Ont. C.A.) at para. 10

81. This Honourable Court in Shtaif overruled the Weiss decision, when it expressly rejected

the Weiss analysis in favour of the Bahlieda decision. Thus, the principles of stare decisis

required the motion judge to follow the Shtaif decision in his reasoning and analysis.

82. In his reasons, the motion judge incorrectly relied on the Weiss decision in support of his

conclusion that the Act applied to defamation published online:

In Weiss, the arguments were as they were before me. Weiss (like the Defendants
before me) argued that a newspaper is a newspaper and entitled to the protection of
the Libel and Slander Act, regardless of whether it publishes in hard copy or in hard
copy and e-copy. Sawyer (like Mr. John before me) argued that it did not apply to e-
publication. Armstrong, J.A. wrote that the words newspaper and paper as
defined in the Libel and Slander Act are broad enough to cover a newspaper which
publishes on the internet. To hold otherwise would create absurd result where the
hard copy would have protection of the Act, but the e-copy would not (see para.s 24
& 25). I agree with Lax, J. and Armstrong, J.A.

Reference: The Endorsement of Trimble J, dated April 1, 2016, para. 18, Appeal Book and
Compendium at tab 4
 22

83. The motion judge also incorrectly distinguished Shtaif in his reasons:

There are significant differences between Schtaif and this case which make it
distinguishable. It was a summary judgment motion, and discoverability was in
issue. It was brought under the unamended summary judgment rule and was pre
Hryniak. Mr. Johns case has no issue as to discoverability that required a trial.

Reference: Ibid at para. 15

84. This reasoning is incorrect for several reasons. First, by referring to the Hryniak case, the

motion judge conflated a summary judgment motion with a motion under Rule

21.01(1)(a), which has stricter evidentiary limitations (as discussed at paragraph 114 of

this factum).

85. Second, and more significantly, the issue of discoverability was not the only issue in

Shtaif. Rather, it was a separate and distinct issue on the appeal. At paragraph 4 of Shtaif,

this Honourable Court listed and answered the issues that were before it:

4. Both the plaintiffs, Shtaif and Roberts, and Toronto Life, with leave, appeal
from the motion judges decision. Their appeals raise numerous issues, which I list
and would answer as follows:
(a) The claim for libel in the internet version of the article:
(1) Is this claim subject to the notice and limitation provisions in the Libel and
Slander Act?
Answer: This issue is a genuine issue requiring a trial.
(2) Should this court apply the American single publication rule to bar this claim?
Answer: No.
(3) Is the issue of discoverability properly before this court, and if so, is the claim
barred because it was discoverable more than three months before the plaintiffs
sued?
Answer: Discoverability is not properly before this court and is a genuine issue
requiring a trial.

Reference: Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405 at para. 4, BOA at tab
A-2

86. Third, the motion judge misquoted the Shtaif decision in support of his erroneous

conclusion. At paragraph 13 of his endorsement, the motion judge writes:

One of the issues that was to be decided was whether the claim for libel arising from
the internet publication was covered by the Act. The Court of Appeal held that this
issue required a trial. In context, however, a central issue in Schtaif was the issues of
 23

discoverability, about which there was conflicting evidence. In paragraph 25 of the

decision, the Court of Appeal said On my proposed disposition of these appeals, the
issue whether the claim for libel in the internet version of the article is subject to the
notice and limitation provisions of the Act is relevant only to the issue of
discoverability, an issue I would leave to be determined at trial. [emphasis added]
Reference: The Endorsement of Trimble J, dated April 1, 2016, para. 13, Appeal Book and
Compendium at tab 4

87. The motion judge omits a qualifying sentence and an important word from his quote of

paragraph 25 of the Shtaif:

Leaving these questions for trial also makes practical sense. On my proposed
disposition of these appeals, the issue whether the claim for libel in the internet
version of the article is subject to the notice and limitation provisions of the Act is
relevant only to the issue of discoverability, an issue I would also leave to be
determined at trial. [emphasis added]

Reference: Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405 at para. 25, BOA at tab A-2

88. The words leaving these questions for trial makes practical sense and an issue I would

also leave to be determined at trial, clearly indicate that the Court of Appeal in Shtaif

considered the issue of whether the Act applied to the Internet to be separate and distinct

from the discoverability issue, which the Court held should also be left to the trial judge.

Post-Shtaif Decisions:

89. Since Shtaif, there have been no trial decisions that found that the notice and limitation

provisions of the Act apply to defamation posted on the Internet. To the contrary, in at

least two reported decisions, the Courts have held that the evidentiary record did not

support a finding that the Act applied to online defamation.

Reference: St. Lewis v Rancourt, supra, at para. 8, BOA at tab A-14;

Kim v. Dongpo, supra, at para. 25, BOA at tab A-15

Application of Shtaif to the herein Motion

90. Shtaif stands for the principle that a trial with a full evidentiary record, including expert

evidence, is required in order to determine whether the Act applies to defamation posted

on the Internet.
 24

Reference: Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405 at paras. 24 & 26, BOA at tab
A-2

91. At the herein motion, the defendants submitted no evidence, not the least expert

evidence, to establish that the Act applied to the online version of the Article. Indeed,

such evidence would not have been admissible on a Rule 21.01(1)(a) motion (as

discussed in more detail below). The motion judge therefore erred when he held that the

Act applied to the online version of the Article.

92. In conclusion, unless and until the Act is amended by the Legislature to expressly include

the technology of the Internet, the notice and limitation provisions of the Act do not apply

to defamation posted on the Internet. It is not the role of a motions judge to amend the

Act when the Legislature had failed to do so. Yet, by finding that the Act applied to the

Internet, the motion judge effectively amended the Act.

93. Moreover, the determination of whether the Act applies to defamation posted on the

Internet requires, inter alia, the interpretation of the relevant sections of the Act in the

context of the Internet, including the definitions of newspaper and broadcast, and

sections 2, 5(1), 6, 7, and 8(1). In addition, the Court would need to consider the

borderless, repetitive and interactive elements of the Internet, the relevance of the

anonymity afforded to potential defendants by the Internet, and the implications of the

Act to various parties and stakeholders, including website hosts, social media sites,

Internet service providers and search engines. None of these necessary and important

considerations were undertaken by the motion judge when he concluded that the Act

applies to defamation posted on the Internet.

94. Consequently, the motion judge erred when he found that the notice and limitation

provisions of the Act apply to the online version of the Article. The plaintiffs claim is

therefore subject to a 2-year limitation period and is not out of time.

 25

Reference: Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, BOA at tab B-11

ISSUE #2: The Court Erred in Finding that the Action was Statute-Barred

95. In the alternative, if this Honourable Court finds that the notice and limitation provisions

of the Act apply to defamation posted on the Internet (which is not admitted but expressly

denied), then this Court should nevertheless grant this appeal because the motion judge

erred in finding that the plaintiffs claim is statute-barred.

The Multiple Publication Rule

96. Each publication of a defamatory meaning gives rise to a separate and distinct cause of

action, even if the material in each publication relates to matters previously published. If

an action is brought for the most recent publication, the limitation period begins at that

point, and not on the date of the earlier publication (Multiple Publication Rule).

Reference: Prof. R. E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New
Zealand, United States 2nd. Ed., p. 17-312 (2016, Toronto Thomson Reuters; BOA at
tab A-31

97. In Shtaif, this Honourable Court implicitly confirmed this principle when it rejected the

Single Publication Rule, because the Single Publication Rule is essentially the opposite

of the Multiple Publication Rule.

Reference: Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405 at paras. 27 - 40, BOA at tab A-
2

98. Defamatory words published in a newspaper, or on radio or television, cannot be altered

once published and, in most cases, are not repeated by the publisher. Online defamation,

however, is republished by the publisher on a continuous basis and may be removed or

altered by the publisher at any time. The publisher may also remove the defamatory

words from the Internet and republish them again the next day or at a later date. Thus,

every day that the defamation is posted on the Internet, the publisher is making a

conscious decision to republish it.

 26

99. Given this unique characteristic of the Internet, for every day that the defamatory words

are published online, a new and distinct cause of action accrues, and a new limitation

period begins to run.

Reference: Prof. R.E. Brown, supra at p. 17-386, BOA at tab A-32;

Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, at para. 20, BOA at
tab A-33

100. In the herein motion, the motion judge made the following pertinent findings of fact,

some of which were based on improperly admitted evidence (as discussed in more detail

below):

December 4, 2013 - the first version of the online Article was published on The
Stars website containing the title: Rapper says death threat just a lyric
(hereinafter, the Defamatory Words). These words, which form the basis for the
plaintiffs claim for defamation, were not included in the printed-version of the
Article;

December 5, 2013 the plaintiff submitted the Error Report through The Stars
website. The motion judge held that the Error Report did not constitute proper libel
notice under section 5(1) of the Act;

April 15, 2015 the plaintiff sent an email to Mr. Ballingall complaining about
the online version of the Article. The motion judge found that this email constituted
proper libel notice under section 5(1) of the Act;

April 28, 2015 the plaintiff issued the Statement of Claim; and

April 29, 2015 the Defamatory Words Rapper says death threat just a lyric
were removed from the online version of the Article.

101. At the motion, there was no evidence regarding the state of publication of the Defamatory

Words between December 4, 2013 and April 29, 2015. Specifically, there was no

evidence and no findings of fact on whether the defendants continued to republish the

Defamatory Words on the Toronto Stars website every day between those dates, or

whether the defendants removed the Defamatory Words from the website after December

4, 2013 and then republished them on a subsequent date prior to April 15, 2015. In any

event, the defendants made a conscious decision to republish the Defamatory Words each

and every day that the Defamatory Words appeared on their website.
 27

102. Since it was undisputed that the Defamatory Words were last removed from the Internet

on April 29, 2015, the last cause of action accrued and the last limitation period began to

run on April 28, 2015.

103. Based on the motion judges findings of fact, the notice under the Act was delivered on

April 15, 2015, which is 13 days before the last cause of action accrued. Thus, the notice

was delivered within the 6 weeks limitation period imposed by section 5(1) of the Act.

104. Furthermore, the Statement of Claim was issued on April 28, 2015, the same day that the

last limitation period began to run. Therefore, the claim was issued within the 3 month

limitation period imposed by the Act and was not statute-barred.

ISSUE #3: The Court Incorrectly Applied Rule 21.01(a) to dismiss the Plaintiffs
Claim

105. Rule 21. 01(1)(a) states, in pertinent part:

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a question of law 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;
and the judge may make an order or grant judgment accordingly.

Reference: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sr. 21.01(1)(a), BOA at tab B-1

106. The test for determining whether a pleading should be struck under Rule 21.01(1)(a) is

whether, assuming the facts as stated in the Statement of Claim are true, it is plain and

obvious that the case cannot succeed.

Reference: Toronto Dominion Bank v. Deloitte Haskins & Sells, 1991 CarswellOnt 768 (Gen. Div.)
at paras. 3 5, BOA at tab A-34
MacDonald v. Ontario Hydro, 1995 CarswellOnt 1271 (Div. Ct.) at para. 24, BOA at tab
A-35

107. No evidence is admissible on a motion under Rule 21.01(1)(a) except with leave of

a judge or on consent of the parties.

Reference: Rules of Civil Procedure, supra, sr. 21.01(2)(a), BOA at tab B-12
 28

108. In Boutin v Co-Operators Life Insurance Co. (hereinafter, Boutin), this Honourable

Court held that the determination of whether a limitation period applies to a particular

claim should not be made on a Rule 21.01(1)(a) motion, when such determination

depends upon findings of fact for its resolution.

Reference: Boutin v Co-Operators, Life Insurance Co., 1999 CarswellOnt 18 (C.A.) at paras. 17 &
22, BOA at tab A-36

109. In support of this principle, this Honourable Court analyzed the significant distinction

between a motion under Rule 21.01(1) and a summary judgment motion under Rule 20:

21 Motions under Rule 21 and 22 are different from summary judgment

motions under Rule 20. Motions under Rules 21 and 22 focus on questions of law
raised by the pleadings (Rule 21.01(1)(a)), or stated by agreement of the parties
(Rule 22.01(1)). A Rule 22 motion brought by the agreement of the parties will,
as a result of the provisions of Rule 22.04(a), be accompanied by an agreed
statement of fact to the extent that facts are necessary to enable the court to
determine the question stated. Rule 21.01(2) provides that there be no evidence
on a motion under Rule 21.01(1)(a) except with leave of a judge or on consent
of the parties. Since Rule 21.01(1)(a) requires that the question of law be raised
by the pleadings there will generally be no need for evidence on a Rule 21.01(1)(a)
motion. It seems clear to me that it was for this reason that the drafters of the
Rules provided that there should be no evidence on a motion under Rule
21.01(1)(a), except for cases in which leave is granted or there is consent.

22 I do not think that the issue whether the policy limitation period is a bar to
the appellants action is a question of law that should have been resolved on a
Rule 21.01(1)(a) motion. As the motions judges endorsement indicates, the
application of the limitation period in this case depends upon findings of fact for
its resolution. This is also apparent from the appellants reply to the respondents
statement of defence. In my opinion, whether the respondent is entitled to rely on
the limitation period in the policy has a significant factual component and is thus
a matter which should be addressed at trial, not on a Rule 21.01(1)(a) motion.
[emphasis added]

Reference: Ibid. at paras. 21 22

110. As discussed above, the motion judge could not have determined that the notice and

limitation provisions of the Act applied to the defamation posted on the Internet without

a full evidentiary record, including expert evidence. Thus, the determination of this issue
 29

has a significant factual component, which was not appropriate on a Rule 21.01(1)(a)

motion.

111. Furthermore, in considering whether the plaintiff complied with the notice requirements

of the Act, the motion judge incorrectly accepted the Error Report into evidence, without

considering whether or not it is admissible on the motion. The motion judge then

proceeded to make crucial findings of fact on the improperly admitted Error Report, on

which he relied to dismiss the plaintiffs claim.

Reference: The Endorsement of Trimble J, dated April 1, 2016, paras. 23 -31, Appeal Book and
Compendium at tab 4

112. Thus, the motion judge erred in dismissing the plaintiffs claim on a Rule 21.01(1)(a)

motion, since findings of fact were required in order to determine whether the plaintiffs

claim was statue-barred.

113. Furthermore, in his reasoning, the motion judge appears to have erroneously conflated a

motion under Rule 21.01(1)(a) with a summary judgment motion under Rule 20.

Specifically:

a) the motion judge did not accept the allegations in the Statement of Claim as fact, as

he was required to do under a Rule 21.01(1)(a) motion; and

b) at paragraph 15 of his endorsement, the motion judge distinguished this Courts

decision in Shtaif because, inter alia, it was a summary judgment motion issued

before the Supreme Court of Canada decision in Hryniak v Mauldin. The Hryniak

decision, which deals with the test on summary judgment motion, has no relevance

to a motion under Rule 21.01(1)(a).

Reference: The Endorsement of Trimble J, dated April 1, 2016, para. 15, Appeal Book and
Compendium at tab 4;
Hryniak v Mauldin, [2014] 1 S.C.R. 87, BOA at tab A-37

114. Further and in the alternative, as discussed in detail above, the issue of whether the Act

applies to defamation posted on the Internet has not been fully settled in the
 30

jurisprudence. Matters of law which have not been settled fully in the jurisprudence

should not be disposed of on a Rule 21.01(1)(a) motion.

Reference: Portuguese Canadian Credit Union Ltd. (Liquidator of) v CUMIS General Insurance Co.,
2010 ONSC 6170 (S.C.J.) at paras. 28, BOA at tab A-38

115. Therefore, the motion judge erred when he dismissed the plaintiffs claim as statute

barred on a Rule 21.01(1)(a) motion.

PART IV - ORDER REQUESTED

116. The Plaintiff (Appellant) respectfully requests that this Honourable Court grant the

appeal and issue an order:

a) setting aside the motion judges decision and reinstating the action;

b) costs of this appeal and of the motion on a substantial indemnity basis; and

c) such further and other relief as this Honourable Court may deem just.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 2nd day of September 2016.

________________________
Maanit Zemel

_________________________
Omar Ha-Redeye
 31

CERTIFICATE

We, Maanit Zemel and Omar Ha-Redeye, lawyers of record for the Appellant, hereby certify:

1. That an order under subrule 61.09 (2) (original record and exhibits) of the Rules of

Civil Procedure is not required on this appeal.

2. We estimate that we would require 5 hours to complete the oral arguments of the

Appellant, not including reply.

______________________________
Maanit Zemel, LSUC #:
MTZ Law Professional Corporation

______________________________
Omar Ha-Redeye, LSUC#:
Omar Ha-Redeye Professional
Corporation
 32

SCHEDULE A

List of Authorities

1. Graff v. Mallick, (June 6, 2016), Toronto, SC-14-10812-00 (Ont. S.C.J., Sm. Cl. Ct.)
unreported

2. Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405

3. Weiss v. Sawyer (2002), 61 OR (3d) 526 (C.A.)

4. Housen v. Nikolaisen, 2002 SCC 33

5. Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42

6. Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477

7. R. Sullivan, Sullivan on the Construction of Statutes, 6th Ed., p. 499 (2014,

LexisNexis Toronto)

8. Berardinelli v. Ontario Housing Corp., 1978 CarswellOnt 462 (S.C.C.)

9. R. Sullivan, Sullivan on the Construction of Statutes, 6th Ed., p. 248 (2014,

LexisNexis Toronto)

10. R. Sullivan, Sullivan on the Construction of Statutes, 6th Ed. p. 72 (2014, LexisNexis
Toronto)

11. The Concise Oxford English Dictionary, 12th ed., s.v. paper

12. Romano v. DOnofrio, 2005 CarswellOnt 6725 (C.A.)

13. Bahlieda v. Santa, 2003 CarswellOnt 4012 (C.A.)

14. St. Lewis v Rancourt, 2015 ONCA 513

15. Kim v. Dongpo, 2013 ONSC 4426 (S.C.J.)

16. Warman v Fromm, 2007 CarswellOnt 9648 (S.C.J.)

17. Warman v. Grosvenor, 2008 CarswellOnt 6629 (S.C.J.)

18. Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of
Internet Providers, [2004] 2 S.C.R. 427

19. Reference re Broadcasting Act, 2012 SCC 4

20. Dingle v World Newspaper, 1918 CarswellOnt 14 (S.C.C.)

 33

21. Elliott v. Freisen, 1984 CarswellOnt 350 (C.A.)

22. Crookes v. Wikimedia Foundation Inc., 2011 SCC 47

23. Elfaranwani v International Olympic Committee & Ethics Commission, 2011 ONSC
6784 (S.C.J.)

24. Bernstein v Poon, 2015 ONSC 155 (S.C.J.)

25. Craven v. Chumra, 2013 ONSC 1552 (S.C.J.)

26. Smith v Baglow, 2015 ONSC 1175 (S.C.J.)

27. Janssen-Ortho Inc. v. Amgen Canada Inc., 2005 CarswellOnt 2265 (C.A.)

28. Shtaif v. Toronto Life Publishing Co., 2011 ONSC 6732 (S.C.J.)

29. Fernandes v. Araujo, 2015 ONCA 57

30. Nolevaux v. King and John Festival Corp., 2013 ONSC 5451 (S.C.J.)

31. R. E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New

Zealand, United States 2nd. ed, p. 17-312 (2016, Toronto Thomson Reuters)

32. R. E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New

Zealand, United States 2nd. ed, p. 17-386 (2016, Toronto Thomson Reuters)

33. Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398

34. Toronto Dominion Bank v. Deloitte Haskins & Sells, 1991 CarswellOnt 768 (Gen.
Div.)

35. MacDonald v. Ontario Hydro, 1995 CarswellOnt 1271 (Div. Ct.)

36. Boutin v Co-Operators, Life Insurance Co., 1999 CarswellOnt 18 (C.A.)

37. Hryniak v Mauldin, [2014] 1 S.C.R. 87

38. Portuguese Canadian Credit Union Ltd. (Liquidator of) v CUMIS General Insurance
Co., 2010 ONSC 6170 (S.C.J.)
 34

SCHEDULE B

List of Statutes, Rules and Regulations (full texts included in the Book of Authorities)

1. Rules of Civil Procedure, R.R.O., 1990, Reg. 194, sr. 21.01(1)(a)

2. Libel and Slander Act, R.S.O. 1990, c L. 12, ss. 1(1) newspaper, broadcast, 2, 5(1),
6, 7, 8(1)

3. An Act Respecting the Law of Libel, (1887) 50 Vic. c. 9, ss. (1(2)

4. An Act Respecting the Law of Libel, (1894) 57 Vic. c. 27, s. 2 and 4

5. An Act Respecting Actions for Libel and Slander (1909), 9 Edward VII c. 40, s. 18

6. The Libel and Slander Act 1958, S.O. 1958, c. 51, ss. 1(a) broadcasting

7. An Act to Amend the Libel and Slander Act, S.O. 1980, c. 35, s. 1

8. Protection of Public Participation Act, 2015, S.O. 2015 C.23, s. 4

9. Broadcasting Act, S.C. 1991, c. 11, ss. 2(1) broadcasting

10. Libel and Slander Act, R.S.B.C. 1996, c. 263, s. 1 broadcast and public newspaper
or other periodical publication

11. Limitations Act, 2002, S.O. 2002, c. 24, Sched. B

12. Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sr. 21.01(2)(a)
 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)

SUPPLEMENTARY BOOK OF AUTHORITIES OF THE PLAINTIFF

(APPELLANT)

April 20, 2017 ZEMEL VAN KAMPEN LLP

401 Bay St., Suite 1600
Toronto, ON, M5H 2Y4

Maanit Zemel (LSUC#: 51603U)

Tel: 416.855-0445
Cell: 416.937.9321
Fax: 647.795.2645
Email: maanit@canadatechlaw.com

Lawyer (co-counsel) for the Plaintiff

(Appellant)

- and -
 OMAR HA-REDEYE PROFESSIONAL
CORPORATION
526 Richmond St. East
Toronto, ON, M5A 1R3

Omar Ha-Redeye (LSUC #: 60456R)

Tel: 416-546-7412
Fax: 416-546-7412
Email: Omar@fleetstreetlaw.com

Lawyer (co-counsel) for the Plaintiff

(Appellant)

TO: BLAKE, CASSELS & GRAYDON LLP

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

Iris Fischer (LSUC#52762M)

Tel: 416.863.4274
Email: 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)

 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)

TABLE OF CONTENTS

TAB DESCRIPTION

1. Canadian Broadcasting Corporation et al v Morrison, 2017 MBCA 36

Canadian Broadcasting Corp. v. Morrison, 2017 MBCA 36, 2017 CarswellMan 149
2017 MBCA 36, 2017 CarswellMan 149

2017 MBCA 36
Manitoba Court of Appeal

Canadian Broadcasting Corp. v. Morrison

2017 CarswellMan 149, 2017 MBCA 36

CANADIAN BROADCASTING CORPORATION, MORRIS KARP, BOB McKEOWN

and TIMOTHY SAWA (Applicants / Appellants) and ALICK MORRISON
(Respondent / Respondent)
Michel A. Monnin J.A., Freda M. Steel J.A., Christopher J. Mainella J.A.

Heard: September 26, 2016

Judgment: April 7, 2017
Docket: AR 15-30-08508

Proceedings: Affirmed, 2015 CarswellMan 494, 320 Man. R. (2d) 172, 124 W.C.B. (2d) 129, [2016] 3 W.W.R. 589, [2015]
M.J. No. 219, 2015 MBQB 130 (Man. Q.B.)

Counsel: R.L. Tapper, Q.C., C.C. Wullum, for Appellant, Canadian Broadcasting Corporation
J.R. Wolson, Q.C., for Appellants, Morris Karp, Bob McKeown and Timothy Sawa
J.C. Prober, B.T. King, for Respondent

Subject: Criminal; Evidence; Torts

Headnote

Criminal law

Torts

Christopher J. Mainella J.A.:

Introduction

1 This appeal raises two issues. First, can a television broadcast be an act of publication of a defamatory libel? Second, is
it a jurisdictional error if hearsay evidence is admitted and relied on at a pre-enquete hearing (also known as a process hearing
or pre-inquiry hearing) under section 507.1 of the Criminal Code (the Code) to decide whether process should issue for a
private prosecution? The relevant provisions of the Code for this appeal are attached as Appendix A to these reasons.

2 The applicants face a private prosecution for one count of publishing a defamatory libel (section 301 of the Code) and
one count of publishing a defamatory libel known to be false (section 300 of the Code). The charges arise from an episode of

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2017 MBCA 36, 2017 CarswellMan 149

the investigative journalism program the fifth estate that was broadcast nationally on the television network of the
Canadian Broadcasting Corporation (CBC), and later made available over the Internet from the CBCs website. The episode,
entitled Larger than Life, was about Peter Nygrd (Nygrd), a well-known international businessman in the fashion
industry. The central theme of the episode was that Nygrds carefully crafted image may be a distortion of reality based on
allegations of him frequently mistreating his staff and engaging in sexually inappropriate behaviour with his staff and others.

3 A Provincial Court judge (the PCJ) conducted a pre-enquete hearing and decided to issue summonses against each of
the applicants for them to attend court to answer to both charges.

4 The applicants moved for a writ of certiorari to quash the PCJs decision and the summonses that were issued. The
reviewing judge dismissed the request for certiorari, finding that the PCJ had not made a jurisdictional error.

5 The arguments of the applicants in favour of a jurisdictional error having been made are essentially twofold. First, they
argue that proof of the actus reus of the offences charged requires that there be a physical act of publishing a defamatory libel
(see R v Lucas, [1998] 1 SCR 439 at para 30). They say that there was no evidence presented at the pre-enquete hearing that
any of them published a defamatory libel. They submit that historically libel has been understood to be the publishing of a
defamatory matter in a permanent visible form, typically printed or written words, while a defamatory matter communicated
by spoken words, or some other transitory method, is referred to as slander. While the distinction between libel and slander
has been abolished for civil actions in Manitoba (see definition of defamation in section 1 of The Defamation Act, CCSM c
D20), the applicants say that the distinction is still relevant for a criminal proceeding because, in their view, a television
broadcast typically contains oral, as opposed to written, statements.

6 The second argument of the applicants is that the PCJ exceeded his jurisdiction in issuing process for the private
prosecution. The applicants submit that a judge or designated justice conducting a pre-enquete hearing has a mandatory duty
under section 507.1(3)(a) of the Code to hear and consider the allegations of the informant and the evidence of witnesses
[emphasis added] before he or she may exercise his or her discretion to issue process under section 507.1(2) of the Code (see
R v McHale, 2010 ONCA 361 at para 69, leave to appeal to SCC refused, [2010] SCCA No 290 (McHale #1)). The
applicants argue that did not occur in their case because the PCJ based his decision to issue process against them not on the
evidence of witnesses, but on hearsay evidence.

7 For the following reasons, I would dismiss the appeal.

Background Facts

8 The factual background is comprehensively set out in the reviewing judges reasons and needs not be repeated. The
essential facts are as follows.

9 The charges against the applicants read as follows:

(1) the Canadian Broadcasting Corporation, also known as CBC, Timothy Sawa, Morris Karp and Bob McKeown on or
about April 9, 10, 11, 12[,] 13, and 16, 2010 at the City of Winnipeg, in the Province of Manitoba, did publish a
defamatory libel by broadcasting and rebroadcasting the Fifth Estate program entitled Larger than Life about Peter
John Nygard on its network and on its website contrary to Section 301 of the Criminal Code of Canada.

(2) the Canadian Broadcasting Corporation, also known as CBC, Timothy Sawa, Morris Karp and Bob McKeown on or
about April 9, 10, 11, 12[,] 13, and 16, 2010 at the City of Winnipeg, in the Province of Manitoba, did publish a
defamatory libel knowing that it was false by broadcasting and rebroadcasting the Fifth Estate program entitled Larger
than Life about Peter John Nygard on its network and on its website contrary to Section 300 of the Criminal Code of
Canada.

10 In addition to the private prosecution, Nygrd and his business have filed a civil claim for defamation in Manitoba
against the applicants, as well as David Studer, the executive producer of the fifth estate.

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11 The episode was first broadcast on April 9, 2010. It was re-broadcast on several occasions in April 2010 and was later
made available for viewing at any time over the Internet from the CBCs website. The individual applicants performed the
following roles in the episode: Timothy Sawa producer/director; Morris Karp co-producer; and Bob McKeown
writer/reporter/host.

12 Lawyers for Nygrd and the CBC had a lengthy dialogue in written correspondence prior to April 9, 2010, as to
whether Nygrds reputation may be damaged by alleged false statements to be made in the episode. The CBC alerted
Nygrd to several allegations that they were making inquiries about and requested his comments on them. Two of the
allegations are noteworthy. The first was whether Nygrd frequently mistreated his staff with verbal abuse and unfair labour
practices. This allegation rested largely on the CBCs interview of former Nygrd employees. A second allegation, also based
on interviews of former Nygrd employees, was of Nygrd engaging in inappropriate sexual behaviour with unnamed women
generally and specifically with a named woman, (M.R.), who was from the Dominican Republic and was alleged to be under
age 18, during her stay at Nygrds Bahamian residence in July 2003.

13 Nygrds lawyers vehemently denied all of the allegations. They provided the CBC with various documents and
witness statements to cast doubt on the credibility of the former employees of Nygrd interviewed by the CBC, as well as a
statement from M.R. where she stated, in essence, that she represented being the age of 18 at the time of her 2003 visit to
Nygrds Bahamian residence and, during her visit there, she was not subjected to any inappropriate behaviour by Nygrd or
anyone else.

14 In July 2010, lawyers for Nygrd retained the respondent, Alick Morrison (Morrison), a decorated retired Detective
Inspector from the Metropolitan Police, New Scotland Yard, London, England to investigate which individuals may be
attempting to damage the reputation of Nygrd. Morrisons mandate included finding out who was responsible for tracing
and selecting participants who appeared in the episode. Morrisons ultimate conclusion was that the CBCs creation of the
episode was simply the latest event in the ongoing and well-documented conflict between Nygrd and his neighbour in the
Bahamas, the American hedge-fund billionaire, Louis Bacon (Bacon).

15 The pre-enquete hearing for the private prosecution took place on May 28-29, 2012. The PCJ gave his decision on
April 29, 2013. Counsel for the Attorney General of Manitoba was present at the hearing and participated in it. Morrison
testified at the pre-enquete hearing and the following exhibits were tendered:

Exhibit #1 a DVD of the episode and a written transcript of it;

Exhibit #2 a binder with copies of correspondence between lawyers for the CBC and Nygrd over the period of
March 30, 2009 to April 9, 2010;

Exhibit #3 a copy of an affidavit of Morrison filed in the Supreme Court of the Commonwealth of the Bahamas on
March 25, 2011, in a lawsuit between Nygrd, Bacon and others, detailing his inquiries on behalf of Nygrd; and

Exhibit #4 a copy of the Manitoba civil statement of claim for defamation.

16 Crown counsel advised the PCJ, at the conclusion of the calling of evidence, that the position of the Attorney General
was that, in light of the Crowns private prosecution policy (which has two criteria whether there is a reasonable
likelihood of conviction and is there a public interest in proceeding (see Manitoba, Department of Justice, Prosecutions,
Private Prosecutions Guideline No 5:PRI:1, online: <www.gov.mb.ca/justice/prosecutions/pubs/private_prosecutions.pdf>)),
the Crown had decided to not do anything at this point in time. Crown counsel advised the PCJ that it would allow
Morrison to seek the issue of process under section 507.1(2) of the Code without the Crowns intervention but would make
no submission as to whether process should issue on the evidence presented.

17 In his reasons, the PCJ was alive to the fact that one of the two defamatory libel offences charged, publishing
defamatory libel contrary to section 301 of the Code, has been declared to be unconstitutional outside of Manitoba (see R v
Lucas (1995), 129 SaskR 53 (QB); R v Byron Prior, 2008 NLTD 80; R v Finnegan, [1992] AJ No 1208 (QB); and R v Gill

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(1996), 29 OR (3d) 250 (Gen Div)). He determined, however, that was not a consideration he could take into account in
deciding whether to issue process.

18 When the appeal was heard, counsel for Morrison was asked whether he and Crown counsel had discussed the
constitutionality of section 301 of the Code in light of the Lucas decision from the Supreme Court of Canada, whether the
Attorney General had determined it was appropriate to allow a prosecution of that offence to proceed in light of it being
constitutionally suspect and whether the Attorney General would defend the constitutionality of that offence if a trial of the
applicants ever occurred. Counsel for Morrison advised the Court that he and Crown counsel had never discussed these issues
but he undertook to do so.

Certiorari Proceedings for a Pre-Enquete Hearing and the Standard of Review for a Certiorari Appeal

19 Certiorari is a discretionary extraordinary remedy of a superior court. In criminal proceedings, it takes two forms.
Rothstein J explained in R v Cunningham, 2010 SCC 10, that a writ of certiorari is available where the inferior court has
made a jurisdictional error or an error of law on the face of the record (at para 57). The question of the scope of a certiorari
review in a given case turns on the nature of the proceeding, the status in the criminal proceeding of the moving party, the
finality of the order being challenged and whether the affected party otherwise has a right to have the alleged error reviewed
in the criminal process (see Dubois v The Queen, [1986] 1 SCR 366 at 370, 373-74; Dagenais v Canadian Broadcasting
Corp, [1994] 3 SCR 835 at 864-65; R v Primeau, [1995] 2 SCR 60 at paras 11-13; and R v Jobin, [1995] 2 SCR 78 at paras
27-28).

20 The parties here agree, as do I, that a certiorari review of a decision to issue process in a private prosecution pursuant
to section 507.1(2) of the Code is limited to jurisdictional error (see R v Vasarhelyi, 2011 ONCA 397 at para 50). Absent
demonstration of a jurisdictional error, the reviewing court has no ability to interfere with the impugned decision (see R v
Sazant, 2004 SCC 77 at para 14). McLachlin CJC explained the limited nature of a certiorari review for jurisdictional error
in the following way in R v Russell, 2001 SCC 53 (at para 19):

The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded
more extensive review, today certiorari runs largely to jurisdictional review or surveillance by a superior court of
statutory tribunals, the term jurisdiction being given its narrow or technical sense: Skogman v. The Queen, [1984] 2
S.C.R. 93, at p. 99. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory
tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the
reviewing court would have reached. Rather certiorari permits review only where it is alleged that the tribunal has
acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by
the authorities, is taken to be an excess of jurisdiction: Skogman, supra, at p. 100 (citing Forsythe v. The Queen, [1980]
2 S.C.R. 268).

21 A pre-enquete hearing is a procedure governed entirely by statute. It is a non-adversarial process that is ex parte and in
camera. An accused has no right to be present, even if aware of the proceeding. The key concerns for the Court are whether
the information is valid on its face and, if so, whether the evidence presented discloses a prima facie case of the offences
alleged (R v Grinshpun, 2004 BCCA 579 at para 32, leave to appeal to SCC refused, [2004] SCCA No 579). The Court does
not consider the likelihood of conviction or potential defences (see also R v Whitmore (1987), 41 CCC (3d) 555 at 565, 568,
571 (Ont H Ct J), affd (1989), 35 OAC 373; Southam Inc et al v Coulter J et al (1990), 40 OAC 341 at para 23; and
Vasarhelyi at para 49). Watt JA summarized the nature of the pre-enquete hearing, in the situation of a private prosecution,
this way in McHale #1 (at para 74):

Conduct of the pre-enquete vindicates the interest of the private informant who seeks prosecution of another for an
alleged crime. The pre-enquete assures the private informant that an independent judicial officer will hear the
informants allegations, listen to the evidence of the informants witnesses, and decide whether there this is evidence of
each essential element of the offence charged in the information. The pre-enquete also ensures that spurious allegations,
vexatious claims, and frivolous complaints barren of evidentiary support or legal validity will not carry forward into a

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prosecution.

22 However, even where the information is valid on its face and the evidence discloses a prima facie case of the
offence(s) alleged, the Court does have a limited discretion to decline to issue process on a private prosecution in the
clearest of cases (R v Parkinson, 2009 CanLII 729 at para 27 (Ont Sup Ct J)). Garton J explained this limited discretion as
follows in R v Halik, 2010 ONSC 125 (at para 20): the justice has a discretion not to issue process where he or she forms the
opinion that the informant or his witnesses are not credible in the sense that they are mentally disordered or the charge is
frivolous, vexatious or abusive. See also R v Edge, 2004 ABPC 55 at paras 70-73.

23 Following up on Watt JAs comments in McHale #1, the screening function of the pre-enquete hearing for a private
prosecution is not entirely the responsibility of the judiciary. When Parliament modernized the criminal procedure regarding
private prosecutions (see Criminal Law Amendment Act, 2001, SC 2002, c 13), its intent was, as McWatt J noted in Friesen v
Ontario (2008), 229 CCC (3d) 97 (Ont Sup Ct J), for there to be greater scrutiny (at para 9) of private prosecutions at an
early stage to weed out unmeritorious cases. As part of the reform, Parliament ensured that the Attorney General would play
a prominent and independent role in the process. The Attorney General must be given reasonable notice of the pre-enquete
hearing, a copy of the information and the opportunity to fully participate in the proceeding (see sections 507.1(3)(b)-(d) of
the Code).

24 As the chief law officer of the Crown, the Attorney General has the ultimate responsibility to supervise all
prosecutions, including private prosecutions (see Krieger v Law Society of Alberta, 2002 SCC 65 at paras 42-47). The
supervising function includes the power to intervene and assume conduct of the private prosecution (see Krieger at para 46);
the power to intervene in the private prosecution, with the rights of a party, but without conducting the private prosecution
(see section 579.01 of the Code); or the power to direct a stay of proceedings at any time after an information is laid to
terminate the private prosecution, even before the commencement or completion of the pre-enquete hearing (see section
579(1) of the Code; R v Pardo (1990), 62 CCC (3d) 371 at 373-74 (Que CA); and McHale #1 at para 89).

25 The responsibility of the Attorney General to supervise a private prosecution does not end with the decision to issue
process under section 507.1(2) of the Code. Crown counsel here properly described the role of the Attorney General when he
told the PCJ that his office will always ... have a role in this matter as it progresses through the system. Throughout the
criminal process, the Attorney General exercises an independent decision-making role, separate and apart from the informant,
the accused and the courts. Decisions in relation to a private prosecution are exercises of prosecutorial discretion and will not
be second-guessed or interfered with on a judicial review absent demonstration of the very high threshold of an abuse of
process (see Krieger at paras 31-32; R v Anderson, 2014 SCC 41 at paras 46-51; Henry v British Columbia (Attorney
General), 2015 SCC 24 at para 49).

26 The principles set out in Skogman v Her Majesty The Queen, [1984] 2 SCR 93 for an order to stand trial after a
preliminary inquiry apply equally to the decision at the pre-enquete hearing as to whether a case is made out for the
purposes of section 507.1(2) of the Code (see R v Pierce, 2004 CanLII 10608 (Ont Sup Ct J)). A jurisdictional error occurs
where process is issued for a private prosecution of an offence in the absence of some evidence on every essential element of
the offence (see Skogman at p 106 and Pierce at para 7). In addition to the issuance of process in the absence of a prima facie
case, a jurisdictional error can also arise at the pre-enquete hearing where the mandatory provisions of the Code are ignored,
not followed or there is a denial of natural justice (see Dubois at p 377; and Forsythe v The Queen, [1980] 2 SCR 268 at
271-72).

27 Where a party is unsatisfied with the superior courts decision on a certiorari review of the decision to issue process
on a private prosecution, he or she has a right of appeal pursuant to section 784(1) of the Code (see R v Douglas, 2016
MBCA 81 at para 37). The standard of review in such an appeal was explained as follows by Chartier CJM in R v Hyra (J),
2013 MBCA 59, leave to appeal to SCC refused, [2014] SCCA No 224, (at para 7):

The standard of review to be applied to the motions judges decision can succinctly be stated as follows: if the correct
standard was selected and if it was properly applied, then great deference will be owed to the decision of the motions
judge (see R. v. Eckstein (S.M.), 2012 MBCA 96at paras. 5-16, 288 Man.R. (2d) 26).

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See also R v Parker, 2014 MBCA 75 at paras 12-18.

Issue One Publication of Defamatory Libel by a Television Broadcast

Introduction

28 The offences laid in the private prosecution in the case at bar have rarely been prosecuted since being adopted in the
Code in 1874. Sections 300 and 301 of the Code are based on sections 4 and 5 of the Libel Act, 1843 (UK), 6 & 7 Vict, c 96
(see Defamatory Libel (1984) Law Reform Commission of Canada (the LRCC) Working Paper No 35, online:
<www.lareau-law.ca/LRCWP35.pdf>, at 5 (the report); and R v Stevens (BG) (1995), 100 ManR (2d) 81 at paras 46-49
(CA)). While defamatory libel offences still exist in Canada, they were abolished in 2010 in the UK (see the Coroners and
Justice Act 2009 (UK), c 25, sections 73, 178 (schedule 23)).

29 In the report, the LRCC recommended that all defamatory libel offences be repealed from the Code because, in its
view, such offences were outdated and defamation is better left to civil courts. While Parliament never accepted the LRCCs
recommendations, the parliamentary record surrounding the Coroners and Justice Act 2009 is clear that, for the same reasons
identified by the LRCC, defamatory libel offences were repealed in the UK (see comments of Lord Lester and Lord Bach in
UK, HL, Parliamentary Debates, vol 712, No 105, cols 843-50 (9 July 2009).

30 Another introductory comment is that the constitutionality of the offences in this private prosecution was not before
the reviewing judge or this Court, nor, given the comments of the Supreme Court of Canada in Lucas, is there reason on the
modest record here to doubt the validity of the offence of publishing a defamatory libel known to be false contrary to section
300 of the Code.

31 The limited and narrow substantive question before this Court is whether the reviewing judge was correct in deciding
that the PCJ did not commit a jurisdictional error by issuing process on the private prosecution because there was some
evidence on every essential element of the offences charged. For the purposes of this appeal, subject to their hearsay
submission that will be addressed later, the applicants do not contest the mens rea of the offences or that there was some
evidence before the PCJ that the content of the episode was false and gravely defamatory of Nygrd; rather, they argue that
the medium used (a television broadcast) cannot support the publication of a libel.

Elements of Offence of Publishing a Defamatory Libel Known to be False

32 Given there is some doubt about the allegation of publishing a defamatory libel proceeding until the Attorney
Generals representative is consulted (see para 18), I will restrict my discussion to the other, more serious, allegation. Aside
from proof of identity and jurisdiction, the elements of the offence of publishing a defamatory libel known to be false are:

Actus Reus

1. the meaning of the matter in question must be sufficiently grave objectively to be defamatory as defined by
section 298(1) of the Code;

2. the form of the defamatory matter must be an expression as defined by section 298(2) of the Code;

3. the defamatory matter must be false (see sections 300 and 612(1) of the Code); and

4. the matter in question must be physically published to a third party (see section 298 of the Code) in one of the
three ways set out in section 299 of the Code (without reference to the words by the person whom it defames or
in section 299(c) of the Code).

Mens Rea

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1. knowledge of the falsity of the published statements;

2. intention to publish the false statements; and

3. intention to defame the complainant.

(See Lucas (SCC) at paras 30, 58, 67-68, 78-82, 84-86, 99, 104; R v ADH, 2013 SCC 28 at para 52; Gleaves v Deakin, [1979]
2 All ER 497 at 502, 508-9 (HL (Eng)); Botiuk v Toronto Free Press Publications Ltd, [1995] 3 SCR 3 at para 62; Grinshpun
at paras 36-37; R v Stevens, (1993) 82 CCC (3d) 97 at 127-28, 139 (Man Prov Ct), affd in Stevens (CA); and Her Majesty
the Queen v Hardev Kumar, 2014 ONSC 2516 at para 9.)

Evidence of Publication of a Defamatory Libel

33 A review of the transcript of the pre-enquete hearing confirms that the PCJ was keenly aware that the Code requires
that the defamatory matter be a libel that was published. He was concerned how that could occur with a television
broadcast. He asked counsel for Morrison, So can you, in fact, express a defamatory libel by virtue of a television
program? Counsel took the position that the essential element of publication of a defamatory libel, when dealing with
statements made during a television broadcast, was satisfied by the fact that a transcript of the CBC broadcast could be
obtained by the public.

34 A review of Exhibit #1 confirms that at no time during the television broadcast was there any direct information for a
viewer as to how to obtain a written transcript of the episode. Viewers were, however, directed by the CBCs advertisements
during the episode and by Mr. McKeown at the end of the episode to go to the CBC website for more information or to
provide ideas or suggestions for future programs.

35 According to the record, the website of the CBC includes information on content of the CBC. If the hyperlinks are
activated, the user will eventually learn that a copy or transcript of a CBC news or current affairs program, such as the fifth
estate, can be purchased from Cision, a multinational communications company with offices in Canada. Contact details for
Cision, including a hyperlink to their website, are provided on the CBCs website. The transcript of the episode, which is part
of Exhibit #1, indicates on its face that it was prepared by Cision and sent to Nygrds business and his lawyers on April 13,
2010.

36 Counsel for Morrison also raised the alternative argument with the PCJ that, because the television broadcast allows
for a text version of the spoken parts by way of closed-captioning technology typically used to aid hearing-impaired viewers,
a written form of any spoken words is available at any time so long as viewers turn on the closed-captioning function of their
televisions.

Decision of the PCJ

37 In his reasons, the PCJ acknowledged that spoken words are insufficient to constitute a defamatory libel and that the
episode was visual and [oral]. However, he was satisfied that a defamatory libel had been published because:

There is ... some evidence of an association between the CBC and the reduction of the words in question into written
form: It was the evidence of [Morrison] that on its website, CBC directs viewers to contact a firm by the name of
CISION for the preparation of transcripts of its programs. As previously noted, a transcript of the broadcast was
tendered in evidence, ostensibly prepared by the firm in question.

38 The PCJ did not consider the alternative closed-captioning argument. The PCJ went on to state, because the episode
was broadcast nationally, there was some evidence it was published by being exhibited in public for the purposes of section
299 of the Code.

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Decision of the Reviewing Judge

39 The applicants argued on the certiorari review that the PCJ erred by relying on the written transcript prepared by
Cision as being some evidence of the publication of a defamatory libel because there was no evidence that any of them were
responsible for the creation of the transcript or any third party having read it. The reviewing judge dismissed this submission
by stating, if the PCJ erred, the error did not amount to a jurisdictional error. He stated in his reasons (at paras 50-52):

I reiterate that the learned Provincial Court judge decided that the transcript of the broadcast was sufficient publication
within the meaning of s. 299. If the learned Provincial Court judge erred in that finding, in my view, it does not go to the
issue of his jurisdiction. I reiterate that an error in law, or in interpreting the law, is not an issue of jurisdiction.

With respect to Karp, McKeown and Sawa, at the conclusion of the program, McKeown invited viewers to contact the
CBC at its website with questions, input about the program, or suggestions for other broadcasts. Clearly, Sawa and
Karp, as the producer and co-producer respectively of the program, would have been aware of this invitation by
McKeown.

Based on this evidence, for the purposes of this application, I am satisfied that the learned Provincial Court judge drew
the inference that Karp, McKeown and Sawa all were aware that anyone who viewed the website would learn that they
could get a copy of the transcript for the program. In my view, that is sufficient evidence for them to continue as
co-defendants.

Analysis and Decision

40 There are two aspects to the applicants argument that process was issued against them without there being some
evidence that they published a defamatory libel. Firstly, they argue that the charges allege publishing a defamatory libel by
broadcasting and rebroadcasting. They say that a broadcast of a television program consisting of spoken words and images
may amount to slander, but not libel. Secondly, they submit that the PCJ could not rely on the transcript of the episode
prepared by Cision for proof of publication because that was not the allegation in the charges and there was no evidence of
how the transcript was acquired, that it was published to anyone other than Nygrd, or that there was a nexus between the
written transcript and any of the applicants.

41 What is meant by the allegation of broadcasting in the charges is not controversial. The Broadcasting Act, SC 1991,
c 11, which regulates and gives a mandate to the CBC, defines broadcasting as follows:

Definitions

2(1) In this Act,

broadcasting means any transmission of programs, whether or not encrypted, by radio waves or other means of
telecommunication for reception by the public by means of broadcasting receiving apparatus, but does not include any
such transmission of programs that is made solely for performance or display in a public place;

See also section 35(1) of the Interpretation Act, RSC 1985, c I-21.

42 More challenging is the question of whether a television broadcast can be an act of publication of a defamatory libel
for the purposes of the criminal law. The starting point to that question is the distinction between libel and slander at
common law.

43 The distinction between libel and slander is anomalous, unique to the common law world and the product of a long
conflict in English history over which courts had jurisdiction to deal with defamatory matters (see Peter F Carter-Ruck, His
Hon Judge Richard Walker & Harvey NA Starte, Carter-Ruck on Libel and Slander, 4th ed (London, UK: Butterworths,

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1992) at 17-32; Prof Alastair Mullis et al, Gatley on Libel and Slander, 12th ed (London, UK: Sweet & Maxwell, 2013) at
para 3.8; and Raymond E Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States,
2nd ed (Toronto: Thomson Reuters, 1999) vol 2 (loose-leaf updated 2016, release 4), at para 8.2).

44 Soon after the demise of the Court of Star Chamber in 1641, English common law courts accepted that the result of a
slander of a private person could not be a crime; the criminal law in such circumstances only concerned itself with libel (see
Rex v Penny (1697), 1 Ld Raym 153, 91 ER 999 (KB)). The distinction between libel and slander has always been an
essential characteristic of the criminal law in Canada, as Parliament has crafted criminal offences relating to defamatory
statements in the Code using the medium through which the defamatory expression is transmitted and the fact it must be
published to someone other than the complainant as essential elements (see sections 298 and 299 of the Code).

45 The applicants rely on the comments of Ryan JA in Grinshpun that, [s]poken words are insufficient to constitute a
libel (at para 37). In my view, the facts of Grinshpun are distinguishable. In that case, the spoken statement was from one
person to another in a transient conversation. I agree with Ryan JA that such a spoken statement, if defamatory, is slander,
not libel. However, the situation here is quite different and more nuanced. The oral statements in question were, in part, on
reasonable inference, based on a written document, were in a permanent form (as they had been recorded as part of a video)
and were disseminated on a mass scale by television broadcasting.

46 The courts have struggled with the distinction between slander and libel for centuries as the ability to record and
disseminate attacks on personal reputation and dignity has increased with technology, such as the printing press, radio,
motion pictures, television and now the Internet. As technology has advanced, the law has adapted, albeit in not the most
coherent or logical fashion. The LRCC noted in the report that, since the 17th century, the courts have been prepared to
accept that an oral statement can be libelous if it could be tied directly to a writing, such as a letter or a script. The LRCC
stated it in its report (at p 14):

The distinction between slander and libel creates problems in attempting to categorize modern broadcasts. For this
reason, many provincial defamation statutes deem defamatory broadcasts to be libels. The fact that the defamation is
orally communicated does not mean that the defamation is a slander. In John Lambs Case, [(1610), 77 ER 822 (Star
Ch)] it was stated that if a person was aware that what he was reading was a libel, any oral communication of it was also
a libel. Moreover, it appears that such an oral communication is a libel whether or not the hearer realizes that the oral
communication originates from a written statement. Consequently, the dominant position is that a defamatory radio
broadcast read from a script is libellous, while an extemporaneous oral remark is slanderous. Similarly, defamatory
words broadcast on live television appear to be libellous, if read from a script. A defamatory motion picture is a libel.

See also Forrester v Tyrrell (1893), 9 TLR 257 (Eng CA); Youssoupoff v Metro-Goldwyn-Mayer Pictures Limited (1934), 50
TLR 581 at 587 (Eng CA); and Gatley on Libel and Slander at para 3.9.

47 The common law distinction between libelous statements based on words read from a written document, such as script,
versus slanderous extemporaneous commentary, is not without its difficulties in the context of a television broadcast. This is
particularly the case when a broadcast is live as opposed to recorded (see the report at p 14, footnote 42). The record here is
that the episode was recorded and was not a live television broadcast. The content of the episode reasonably allows for the
inference by a viewer that what the host, Mr. McKeown, said was scripted. It should not be forgotten he also had the role as
the writer of the episode. It would also be highly unlikely the other individual applicants could perform their roles as
producer/director and co-producer of the episode without knowledge of and approval of the written script.

48 However, it is more difficult to infer that the oral statements made by former Nygrd employees during interviews by
Mr. McKeown (except where Mr. McKeown repeated them in his narration) were tied to a written script. There is no
suggestion or evidence that the ex-Nygrd employees were acting or parroting what the applicants wanted them to say.

49 In jurisdictions outside Manitoba, where the distinction between libel and slander still exists for civil purposes, the
difficulty in distinguishing libel from slander in a case where broadcast technology is employed has typically been addressed
by legislation. For example, a defamatory television broadcast in Ontario is deemed to be libel (see the Libel and Slander Act,
RSO 1990, c L12, section 2; and Shtaif v Toronto Life Publishing Co Ltd, 2013 ONCA 405 at para 20).

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50 Professor Raymond Brown makes the point in Brown on Defamation that the unique aspect of television and motion
pictures (what he calls talking pictures) does not fit into the traditional common law understanding of slander because
much of what one hears can be understood only in the context of what is seen (at para 8.3(3)). To similar effect, it is stated
in Gatley on Libel and Slander that (at para 3.9):

The showing of a defamatory cinema film is libel at common law and this cannot turn on the fact that the images are
permanently visible on the film, so the same should apply to the showing of a DVD. Hence it is thought that the showing
of a film or DVD on television would (even apart from statute) be libel at common law and perhaps the same is true of a
recorded radio broadcast.

51 In my view, such a conclusion is entirely consistent with the common law approach to distinguishing libel and slander.
Firstly, a television broadcast, which can be recorded and published repeatedly (as was the case here), has a degree of
permanence to the form of the communication which has been an important quality of libel historically (see Monson v
Tussauds Limited, [1894] 1 QB 671 at 692 (Eng CA); and Gatley on Libel and Slander at para 3.6). Secondly, the harm a
defamatory television broadcast can cause to a persons reputation is significant. Freedom of expression in a democratic
society has never been accepted to be unlimited. Defamation laws co-exist with the right of freedom of expression because
the protection of the good reputation of an individual is of fundamental importance to our democratic society (see Hill v
Church of Scientology of Toronto, [1995] 2 SCR 1130 at para 120). A television broadcast has the capacity for mass
dissemination of defamatory statements made in it (certainly in the case of a national broadcaster such as the CBC), thereby
creating at least as much harm to the personal reputation of a defamed person, if not more, than would be caused if the
statement were printed in a newspaper, a well-accepted act of libel (see generally Brown on Defamation at para 8.3; and Paul
Mitchell, The Making of the Modern Law of Defamation (Oxford, Oregon: Hart Publishing, 2005) at 24-30).

52 It is not contentious from the content of Exhibit 1 that the episode created by the applicants was permanently recorded
into a video that was broadcast nationally on the television network of the CBC on several occasions. In my view, those
characteristics alone can reasonably support the inference that any potentially defamatory oral statements made about Nygrd
in the episode were libel within the meaning of section 298 of the Code.

53 I would reach a similar conclusion, by a different route under section 298 of the Code, that there was also some
evidence presented by Morrison at the pre-enquete hearing that defamatory oral statements about Nygrd in the episode were
libel because the reasonable inference can be drawn that a written script was used, in part, in the television broadcast by the
applicants.

54 Regardless of how libel is established, the CBC has a legislative mandate under the Broadcasting Act to make its
programming available throughout Canada, which it did in this case, and, while no evidence was led by Morrison as to how
wide the publication of the episode was, given the unknown size of the audience for the fifth estate, the accepted fact that it
was broadcast nationally on the CBCs television network on multiple occasions is, by itself, some evidence of publishing to
a third party within the meaning of section 299 of the Code (see Gaskin v Retail Credit Co et al, [1965] SCR 297 at 300; and
Kohuch and Loewen v Wilson (1988), 71 SaskR 33 at paras 134-40 (QB)). In terms of the individual applicants apart from the
CBC, by participating in the creation or production of the episode for the purpose of it being broadcasted by the CBC, there is
some evidence of each of them publishing it (see Gatley on Libel and Slander at para 6.24; section 21(1) of the Code; and
Lysko v Braley (2006), 79 OR (3d) 721 at para 90 (CA)).

55 I make no comment as to the strength of the evidence against any of the applicants on an individual basis, the
inferences that a trier of fact may ultimately draw from the evidence or the defences the evidence raises for the applicants. In
particular, it is unnecessary to address in this appeal the fact that the charges allege that each of the applicants published a
defamatory libel in part by use of the CBCs website. It is well understood that the nature of the Internet as a
communication medium raises unique concerns regarding the question of publication separate and apart from a broadcast
through a television network (see Crookes v Newton, 2011 SCC 47 at paras 16-43; Shtaif at paras 23-24; and Matthew
Collins, The Law of Defamation and the Internet, 3rd ed (New York: Oxford University Press, 2010) at para 4.06).

56 The concerns raised by the applicants of reliance on the written transcript produced by Cision for proof of the
publication of a defamatory libel, in light of the wording of the charges and the reasonableness of the inferences drawn by the

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PCJ about their involvement in publication, do not ultimately assist them. Leaving aside the question of the merit of
submissions, they fail on the basis that they do not raise a jurisdictional error.

57 I agree with the reviewing judge that the PCJs decision to rely on the transcript of the episode prepared by Cision as
some evidence of the actus reus that a defamatory libel had been published, even if wrong, did not amount to a jurisdictional
error. The technical arguments advanced by counsel for Morrison about proof of publication of a defamatory libel by way of
the CBC making available a written transcript of its television broadcast of the episode from Cision, or the implications of
closed-captioning technology, were no doubt rooted in the esoteric and often bedeviling distinction between libel and slander.
Ultimately, I conclude that it is unnecessary to enter the briar patch of deciding the correctness of those submissions which
were accepted in part by the PCJ.

58 The relevant question, given this is a certiorari proceeding, is whether there was some evidence at the pre-enquete
hearing of the publication of a defamatory libel to negate the suggestion that a jurisdictional error was made by issuing
process for the private prosecution. The common law, as I have explained, does recognize that an oral defamatory statement
can, in some circumstances, amount to libel. Oral publication of a written defamation, such as reading from a script, is one
example. Mass dissemination of an oral defamatory statement that is in a permanent form, such as a recording by use of
technology, such as a motion picture or television broadcast, is another.

59 In my view, based on the record before the PCJ, there was some evidence that a defamatory libel relating to Nygrd
was published by each of the applicants.

Issue Two Hearsay Evidence at the Pre-Enquete Hearing

Introduction

60 In Vasarhelyi (see paras 34-38), the Ontario Court of Appeal explained the differences between the two procedures in
the Code that govern the issuance of process after an information has been laid pursuant to section 504. If the informant is a
law-enforcement official, such as a peace officer, the process is governed by section 507. If the informant is a private citizen,
the process is governed by section 507.1. While there is no issue that a law-enforcement official may rely on hearsay to
support the issuance of process, it is disputed that the same can occur in a private prosecution such as the case under appeal.

61 The issue as to what hearsay evidence can be admitted and relied on at a pre-enquete hearing raises a question as to the
relationship between sections 507.1 and 540(7) of the Code and whether, if the PCJ was incorrect in his interpretation of
those sections, his error was jurisdictional, as opposed to legal, for the purposes of certiorari review.

Proceedings at the Pre-Enquete Hearing

62 Counsel for Morrison submitted to the PCJ that the key exhibits, Exhibits 1 and 2, were admissible as business records.
He also argued that it was permissible for Morrison to testify about information he did not have personal knowledge of for
two reasons. The circumstances surrounding the hearsay information made it credible and trustworthy. Further, the Attorney
General had notice of and access to the hearsay information before the hearing and could test its reliability at the hearing if
necessary.

63 Counsel for Morrison further advised that, if the Court required, he could make available one of Nygrds lawyers to
confirm the authenticity of the correspondence between them and the CBC and its lawyers prior to the television broadcast of
the episode.

64 Morrison testified that he had reasonable grounds to believe the defamatory libel offences alleged had been committed.
He based his belief on the DVD of the episode and supporting transcript prepared by Cision, the correspondence between the
lawyers as to what the CBC had been told was false and defamatory of Nygrd prior to the first television broadcast, and
discussions he had (and secretly recorded) between July and October 2010 with Jerry Forrester, an ex-FBI agent based in
Miami, Florida (and Forresters associate, Bradley Pratt (a former Bahamian police officer)), who allegedly had been hired
by the CBC to assist it in the production of the episode.
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65 Counsel advised that he was in possession of the secretly recorded conversations made by Morrison, along with
transcripts, but they would not be filed absent the PCJ wanting to review them. The PCJ did not request to do so.

66 Morrison testified that, after identifying Forrester as the CBCs investigator, he approached him, posing as himself
with a cover story that a European competitor of Nygrd in the fashion industry had hired him to attempt to have a television
broadcast produced in Europe about Nygrd similar to the one aired by the CBC in Canada.

67 Morrison advised that Forrester told him that he could assist in locating witnesses who could be bribed to make
allegations about Nygrd. Forrester told Morrison that he had offered to do this for Mr. Sawa, but Mr. Sawa had refused. He
said, however, that instead of terminating the relationship, the CBC continued to retain him to assist it. Morrison described
Forrester as having a pathological hatred towards Nygrd. He said Forrester made the suggestion, Lets make sure that
Nygrd will never sell another blouse.

68 As previously mentioned, one of the documents Nygrds lawyers provided to the CBC was a copy of a statement of
M.R. who denied anything improper had occurred on her visit to Nygrds residence in the Bahamas in 2003. M.R.s
statement was dated April 8, 2010 and was witnessed by a lawyer in Santiago, Dominican Republic. In the episode, Mr.
McKeown acknowledged that the CBC had been provided with M.R.s statement. He told the viewers about its contents and
then said that, despite making efforts, the fifth estate had not been able to locate M.R. to try to get her side of the story.

69 Morrison testified that, during a meeting at a hotel in New York City in August 2012, Forrester disclosed to him that
he had authorized and paid for a surveillance operation in the Dominican Republic. Forrester gave Morrison a copy of a
surveillance report of the operation that was filed at the pre-enquete hearing. The report states that, on April 8, 2010,
operatives in the Dominican Republic received information from Forrester that Nygrds representative was travelling from
Miami to meet with M.R. The operatives followed Nygrds representative from the airport in Santiago to a local restaurant
where she met with M.R. for several hours. After the meeting, M.R. was followed. Morrison testified that Forrester told him
that he had contacted the CBC about approaching M.R. but was told to back off. Morrison testified that he believed that the
statement made during the CBCs broadcast that the fifth estate could not locate M.R. to speak to her was a total lie.

70 Morrison was cross-examined by Crown counsel at the pre-enquete hearing. He acknowledged that, during his
inquiries, he had no discussions whatsoever with Mr. McKeown, Mr. Karp, Mr. Sawa or any of the key people interviewed or
otherwise relied on by the CBC for the production of the episode.

Decision of the PCJ

71 The PCJ did not make evidentiary rulings during the calling of the evidence although he did alert Morrisons counsel
to the issue that it was, as he put it, a live issue as to what use can be made of hearsay and whether or not witnesses to
proceedings need to be called. The PCJ also told counsel that it was improper for him to tell counsel what witnesses had to
be called, it was up to counsel to decide how to call his case.

72 In his decision, the PCJ noted that virtually all of the evidence presented ... was effectively hearsay, including
virtually all of Morrisons evidence. He decided, however, to rely on the hearsay evidence in deciding to issue process. He
stated:

In the instant case, there is no suggestion that the Crown had not received reasonable notice of the intention to tender the
noted exhibits, and certainly no objection was raised by Crown counsel to the introduction of the material in this form.

I conclude that the documentary material submitted on behalf of the Informant is credible and trustworthy, within the
limited meaning of that phrase as it applies to applications pursuant to ss. 540, 507, and 507.1 of the Criminal Code. In
doing so, I note [in] the sworn evidence before me that the allegations as to the conversations between the Informant and
Jerry Forrester were tape recorded and transcribed. I also note that the statement of [M.R.], refuting the allegations of
sexual impropriety on the part of Mr. Nygrd, was notarized. I emphasize that in making this determination, I make no
determination as to the ultimate credibility of Mr. Forrester, [M.R.], or any of the other individuals upon whom the

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Informant relies.

Decision of the Reviewing Judge

73 The applicants argued on the certiorari review that the PCJ exceeded his jurisdiction by issuing process for the private
prosecution because he failed to follow the requirement in section 507.1(3)(a) of the Code to hear the evidence of
witnesses. The applicants argued that the PCJ was not entitled to admit and rely on hearsay evidence. Again, the reviewing
judge dismissed this submission by stating, if the PCJ erred, the error did not amount to a jurisdictional error. He stated in his
reasons (at para 39):

In my view, the learned Provincial Court judge had the jurisdiction to make this finding. I am satisfied that, whether this
finding is correct in law, is not an issue that I can or should decide in this application for certiorari.

74 The reviewing judge also went on in obiter to comment that the case presented at the pre-enquete was not entirely
hearsay. He noted that, the correspondence exchanged between the CBC, its lawyers and Nygrds lawyers, prior to the
airing of the program, contained evidence that was both admissible and relevant. That correspondence supported the charges
(at para 41). He ultimately stated (at para 44):

In my view, all of the correspondence that was tendered before the learned Provincial Court judge was clearly
admissible at the ex parte hearing and will, in all likelihood, be admissible at trial. Leaving aside Morrisons testimony,
if the prosecution can prove at trial that some or all of the information contained in the letters from Nygrds lawyers is
true, and the applicants went ahead and broadcast the program in the face of that evidence, some or all of the applicants
may be guilty of defamatory libel.

Analysis and Decision

75 There are two aspects to the applicants argument that a jurisdictional error occurred in the PCJ admitting and relying
on hearsay to make his decision to issue process for the private prosecution. The first part of the submission is policy based.
The other aspect relies on principles of statutory interpretation.

76 The policy-based submission is not contentious. There is a legitimate concern that the right to commence a private
prosecution can easily be abused. This concern is long standing. Miller CJM warned in Campbell v Sumida, [1965] 3 CCC 29
(Man CA) (at p 39):

I am greatly concerned with this possibility that if we accept the argument of the informant, we unnecessarily widen
the field of prosecution of Her Majestys subjects to any obsessed, vindictive, unscrupulous, self-styled public saviour.
Her Majestys subjects are entitled to freedom from unwarranted prosecution. They should not be called upon to defend
themselves from unjustifiable charges at their own expense. Even a successful defence is not only costly but can leave a
blemish on the reputation of an innocent citizen.

See also Mandelbaum v Denstedt (1969), 66 WWR 636 at 638 (Man CA).

77 Prior to passage of the Criminal Law Amendment Act, 2001, the procedure in the Code as to whether process should
issue after the laying of an information was the same regardless of whether the informant was a law-enforcement official or a
private citizen. Hearsay evidence from the informant could be relied upon to establish a prima facie case unless the justice
felt it desirable to hear witnesses. Where the informant lacked sufficient details to establish a prima facie case, evidence
from witnesses was necessary for process to issue (see Whitmore at p 565).

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78 The applicants say that Parliament created a new procedure in the Criminal Law Amendment Act, 2001 to deal with the
issuance of process for a private prosecution because it wanted to ensure that there were appropriate safeguards put in place
that would allow for strict scrutiny of private prosecutions at their commencement. They argue that proper oversight comes
from mandatory involvement in the process by the Attorney General and from the judiciary using a different, more stringent
procedure than what is followed under section 507. The subsequent case law supports the applicants interpretation of the
policy underlying section 507.1 (see Edge at paras 74-77, 91; McHale #1 at paras 47, 65, 69; Friesen at paras 9-11; and
Ambrosi v British Columbia (Attorney General), 2014 BCCA 123 at paras 23-24, leave to appeal to SCC refused, [2014]
SCCA No 320).

79 The statutory interpretation argument of the applicants as to exactly what is meant in section 507.1(3)(a) of the Code
as to the courts obligation to hear and consider the allegations of the informant and the evidence of witnesses raises more
difficult questions. Another policy aspect to the Criminal Law Amendment Act, 2001 was the modernization of criminal
procedure to allow for the admission and reliance on hearsay evidence in pre-trial procedures in certain situations (see section
540(7) of the Code). The PCJs interpretation of the Code that section 540(7) allowed him, in deciding whether to issue
process, to rely on hearsay evidence if it was credible or trustworthy, is supported by precedent (see McHale v Attorney
General (Ontario), 2011 ONSC 4535 at paras 20, 37 (McHale #2)).

80 If the applicants submission is reduced to its bare essentials, the argument is a simple one that flows from the
safeguard function of a pre-enquete hearing in the case of a private prosecution. The applicants say that a private-citizen
informant, unlike a law-enforcement official, is required by the specific wording of section 507.1(3)(a) of the Code to call the
witnesses who have personal knowledge of the facts surrounding the offence in question. The statute provides for no
exceptions. The applicants rely on the different wording used in sections 507 and 507.1 which they say must be given
meaning. The applicants argue that, if hearsay evidence could be received under section 507.1, as it can under section 507,
then there was no need for Parliament to use different wording in the two sections. In support of their position, the applicants
rely on comments made by Allen PJ in Edge (at paras 91, 93, 99):

In this context, the grammatical and ordinary sense is that the word and in s. 507.1 is conjunctive so that process can
only be issued when the allegations of the informant are heard as well as evidence of witnesses. It follows then if no
witness is called no process may issue. Reference to other related sections supports the proposition that witnesses must
be called. If the hearing were meant to be the same type of hearing as one held under s. 507(1)(a) the exact same
phraseology would have been repeated. This latter section limits the calling of witnesses a discretionary call of the
judicial officer who hears the allegations of the informant. No similar limiting words are found within s. 507.1(3).

Where proof of the prima facie case depends on witnesses other than the informant, those witnesses need to testify in the
same manner. The absence of witnesses to prove a prima facie case will mean that no process will be issued. Of course,
the judge may, in appropriate circumstances, afford the informant the right to an adjournment to obtain further evidence.
If no process is issued, the informant still has an alternative to reapply within six months if there is new evidence.

The differences between the private informant and the s. 507(1) informants dictate a slightly different procedure. The
private informant should be sworn even when making his or her allegations. Where the allegations are based upon
information given to the informant by others, the informant is expected to call those witnesses.

[emphasis added]

81 The applicants submit that the wording of the Code, as explained in Edge, makes it clear that the shortcut of an
informant relying on hearsay evidence is simply not permitted. In their view, section 540(7) has no application whatsoever to
pre-enquete hearings because the Court is mandated by section 507.1(3)(a) to hear the evidence of witnesses to the offence. If
that does not occur and process is issued, the applicants argue a jurisdictional error occurs because a mandatory pre-condition
to the issuance of process has not been followed (see Dubois at p 377).

82 The applicants say that, while Morrison was a witness to some of the events after the episode was broadcast on
television, he had no first-hand knowledge of the key facts prior to July 2010. They argue that witnesses, such as M.R.,
Forrester and the lawyers for Nygrd involved in the dialogue with the CBC before the first broadcast, needed to be called at

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the pre-enquete hearing before the PCJ could rely on facts relating to them to decide whether there was a prima facie case on
each of the elements of the charges.

83 The applicants also point out that the statutory provision that incorporates section 540(7) into a pre-enquete hearing is
circumscribed. Section 507(3)(b) of the Code (which is applicable by virtue of section 507.1(8)) says that section 540 applies
in so far as that section is capable of being applied. Therefore, the applicants submit Parliament envisioned that all of
section 540 may not necessarily apply to a pre-enquete hearing. Rather, the provisions of section 540 of the Code only apply
to the extent that they do not create an inconsistency or incoherence with the requirement in section 507.1(3)(a) that the court
hears from witnesses with first-hand knowledge of the facts.

84 The applicants agree that sections 540(1)-(6) of the Code apply to pre-enquete hearings because those provisions
ensure that a permanent record is created of the hearing and they also regulate the form that record will take. They say those
parts of section 540 do not conflict with the purpose or wording of section 507.1.

85 The applicants say, however, that incorporation of section 540(7) into a pre-enquete hearing is problematic. Sections
540(7)-(9) were enacted in the Criminal Law Amendment Act, 2001 as part of the previously mentioned attempt by
Parliament to modernize criminal procedure to improve the efficiency of pre-trial proceedings.

86 It is now well accepted that section 540(7) of the Code allows for the prosecutor to have an accused committed for trial
at a preliminary inquiry in whole or in part on hearsay evidence provided that it is credible or trustworthy and the prosecutor
has given reasonable notice of his or her intention to introduce it as required by section 540(8). Where an accused wishes
nevertheless to have a witness(es) produced for examination or cross-examination, he or she must make an application
pursuant to section 540(9) and demonstrate that it is appropriate to have the witness(es) appear.

87 The applicants argue that section 540(7) is not capable of being applied to a pre-enquete hearing, as required by
section 507(3)(b), because the safeguards that exist on the use of section 540(7) in the case of a preliminary inquiry, sections
540(8) and (9), cannot be applied to a pre-enquete hearing for a fundamental reason. The significant difference between a
pre-enquete hearing and a preliminary inquiry is, at the latter, the accused has the right to be present and be represented by
counsel while, at the former, he or she does not. The applicants further argue that the mere fact that the Attorney General will
have notice of the hearsay information, and the ability to contest it, is not adequate safeguard because the Attorney General is
not the accuseds lawyer and plays a different role.

88 The question of whether section 540(7) and section 507.1 can be reconciled together in light of the competing policy
considerations in the Criminal Law Amendment Act, 2001 was identified, but not decided, in Vasarhelyi (see para 58). A
review of the reasons given in Edge and McHale #2 makes it clear that the statutory interpretation argument advanced by the
applicants as to the relationship between sections 507.1 and 540(7) of the Code was not before those courts. In the case of
Edge, the applicants argument that Edge illustrates that a court is not entitled to accept hearsay evidence as proof of the
elements of the offences is a submission with some difficulties.

89 In Edge, the informant, Mr. Durand, had previously testified before the Alberta Law Enforcement Review Board as to
alleged mistreatment by police officers at a lounge after he had been drinking alcohol. Mr. Durand then brought a private
prosecution for assault against one of the officers. At the pre-enquete hearing, Mr. Durand took the stand and, rather than
testifying about his encounter with police, he simply said the evidence he gave previously before the Alberta Law
Enforcement Review Board was true. A transcript of his evidence was filed as an exhibit. Allen PJ relied on the prior
evidence of the informant and commented, [t]his constitutes evidence that I can consider in issuing process (at para 12).

90 Generally speaking, prior consistent statements are not admissible because they lack probative value and constitute
hearsay when adduced for the truth of their contents (see R v Dinardo, 2008 SCC 24 at para 36). A witness is typically not
excused from giving testimony in favour of simply adopting a prior consistent statement absent the consent of the other party
or a statutory provision or common law rule allowing for receipt of the prior consistent statement. Consent is of course an
impossibility in a pre-enquete hearing as the hearing is non-adversarial and the accused has no right to notice or to be present.
I make this observation not to express any concern or disagreement about the decision in the Edge. Rather, I raise the facts of
Edge to make the point that the applicants position in their factum that the Court, in Edge, did not accept hearsay evidence
is debatable. Edge can reasonably be read as a case where the Court implicitly relied on section 540(7) of the Code to admit

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and consider credible or trustworthy information that was otherwise inadmissible in the form presented.

91 Distinctions between errors of law and errors of jurisdiction are subtle. In R v MPS, 2014 BCCA 338, Groberman JA
explained the difference between a jurisdictional error and legal error in the following way in his discussion of the prior
decision of the British Columbia Court of Appeal in R v Rao, 2012 BCCA 275, where the Court was divided as to whether
the errors in question were jurisdictional or legal. He stated (at para 56):

Rao illustrates the limits of certiorari in controlling the process at a preliminary inquiry. While a judges refusal or
neglect to follow a mandatory statutory provision will be characterized as a jurisdictional error and therefore be
amenable to certiorari, an error of judgment in following a statutory provision will be characterized as a mere error of
law and will not be amenable to prerogative relief.

92 As previously mentioned, in order to issue process for a private prosecution pursuant to section 507.1(2) of the Code,
the judge must have some evidence before him or her on every essential element of the offence. However, what does or does
not constitute evidence for the judges decision is a legal issue within the judges jurisdiction. An error by a judge as to the
admission or exclusion of evidence, or the application of the rules of evidence to a question a judge has jurisdiction to decide,
is not a jurisdictional error (see Attorney General (Que) v Cohen, [1979] 2 SCR 305 at 310; Forsythe at pp 271-72; Dubois at
p 377; and R v Deschamplain, 2004 SCC 76 at para 17). As Caldwell JA explained in R v Beaven, 2012 SKCA 59, An
erroneous evidentiary ruling under which the only evidence on an essential ingredient of an offence is admitted is not a
jurisdictional error: R. v. LeBlanc, 2009 NBCA 84 (at para 26). See also R c PM, 2007 QCCA 414 at paras 32-40.

93 The applicants submission that the PCJ was not entitled by the wording of the Code to accept hearsay evidence in this
case is an argument that goes to whether a legal error was committed. In my view, it is unnecessary to decide what is the
correct relationship between sections 507.1 and 540(7) of the Code because the error alleged here cannot be said to be a
jurisdictional error. As Watt JA noted in Vasarhelyi, section 507.1(3) requires the court to hear the evidence of witnesses
but the section does not specify or otherwise describe, in express words, the substance or kind of evidence that must or may
be introduced on the inquiry (at para 40).

94 In my view, what evidence the PCJ could or could not receive and the form it had to take in deciding whether to issue
process was a subject within his jurisdiction. Unlike the situation in Rao (see paras 70, 72), the PCJ considered sections 507.1
and 540 of the Code and made a decision as to their meaning and relationship in terms of his determination whether to issue
process for the private prosecution. The correctness of his decision is irrelevant for the purposes of a certiorari review
because the misconstruction of a statute or misdirection on the law on a subject within the PCJs jurisdiction is not a
jurisdictional error (see Vasarhelyi at para 52).

Conclusion

95 The reviewing judge applied the correct standard at the certiorari review by examining the PCJs decision for
jurisdictional, not legal, error. I have not been convinced that he was incorrect in deciding that the PCJ did not commit a
jurisdictional error. On the record before the reviewing judge, I have not been persuaded that the PCJ refused to exercise his
jurisdiction, acted in excess of it, lost it, or breached a principle of natural justice (see Russell at para 19). In the result, I
would dismiss the appeal.

Michel A. Monnin J.A.:

I agree:

Freda M. Steel J.A.:

I agree:

Appendix A
Criminal Code Provisions
Parties to offence

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21 (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

Definition
298 (1) A defamatory libel is matter published, without lawful justification or excuse, that is likely to injure the reputation of
any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it
is published.
Mode of expression
(2) A defamatory libel may be expressed directly or by insinuation or irony

(a) in words legibly marked on any substance; or

(b) by any object signifying a defamatory libel otherwise than by words.

Publishing
299 A person publishes a libel when he

(a) exhibits it in public;

(b) causes it to be read or seen; or

(c) shows or delivers it, or causes it to be shown or delivered, with intent that it should be read or seen by the person
whom it defames or by any other person.

Punishment of libel known to be false

300 Every one who publishes a defamatory libel that he knows is false is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years.
Punishment for defamatory libel
301 Every one who publishes a defamatory libel is guilty of an indictable offence and liable to imprisonment for a term not
exceeding two years.
In what cases justice may receive information
504 Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information
in writing and under oath before a justice, and the justice shall receive the information, where it is alleged

(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice
resides, and that the person

(i) is or is believed to be, or

(ii) resides or is believed to reside,

within the territorial jurisdiction of the justice;

(b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the
justice;

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(c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the territorial
jurisdiction of the justice; or

(d) that the person has in his possession stolen property within the territorial jurisdiction of the justice.

Justice to hear informant and witnesses public prosecutions

507 (1) Subject to subsection 523(1.1), a justice who receives an information laid under section 504 by a peace officer, a
public officer, the Attorney General or the Attorney Generals agent, other than an information laid before the justice under
section 505, shall, except if an accused has already been arrested with or without a warrant,

(a) hear and consider, ex parte,

(i) the allegations of the informant, and

(ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and

(b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a summons or a
warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same
territorial division to answer to a charge of an offence.

Process compulsory
(2) No justice shall refuse to issue a summons or warrant by reason only that the alleged offence is one for which a person
may be arrested without warrant.
Procedure when witnesses attend
(3) A justice who hears the evidence of a witness pursuant to subsection (1) shall

(a) take the evidence on oath; and

(b) cause the evidence to be taken in accordance with section 540 in so far as that section is capable of being applied.

Summons to be issued except in certain cases

(4) Where a justice considers that a case is made out for compelling an accused to attend before him to answer to a charge of
an offence, he shall issue a summons to the accused unless the allegations of the informant or the evidence of any witness or
witnesses taken in accordance with subsection (3) discloses reasonable grounds to believe that it is necessary in the public
interest to issue a warrant for the arrest of the accused.
No process in blank
(5) A justice shall not sign a summons or warrant in blank.
Endorsement of warrant by justice
(6) A justice who issues a warrant under this section or section 508 or 512 may, unless the offence is one mentioned in
section 522, authorize the release of the accused pursuant to section 499 by making an endorsement on the warrant in Form
29.
Promise to appear or recognizance deemed to have been confirmed
(7) Where, pursuant to subsection (6), a justice authorizes the release of an accused pursuant to section 499, a promise to
appear given by the accused or a recognizance entered into by the accused pursuant to that section shall be deemed, for the
purposes of subsection 145(5), to have been confirmed by a justice under section 508.
Issue of summons or warrant
(8) Where, on an appeal from or review of any decision or matter of jurisdiction, a new trial or hearing or a continuance or
renewal of a trial or hearing is ordered, a justice may issue either a summons or a warrant for the arrest of the accused in
order to compel the accused to attend at the new or continued or renewed trial or hearing.
Referral when private prosecution
507.1(1) A justice who receives an information laid under section 504, other than an information referred to in subsection
507(1), shall refer it to a provincial court judge or, in Quebec, a judge of the Court of Quebec, or to a designated justice, to

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2017 MBCA 36, 2017 CarswellMan 149

consider whether to compel the appearance of the accused on the information.

Summons or warrant
(2) A judge or designated justice to whom an information is referred under subsection (1) and who considers that a case for
doing so is made out shall issue either a summons or warrant for the arrest of the accused to compel him or her to attend
before a justice to answer to a charge of the offence charged in the information.
Conditions for issuance
(3) The judge or designated justice may issue a summons or warrant only if he or she

(a) has heard and considered the allegations of the informant and the evidence of witnesses;

(b) is satisfied that the Attorney General has received a copy of the information;

(c) is satisfied that the Attorney General has received reasonable notice of the hearing under paragraph (a); and

(d) has given the Attorney General an opportunity to attend the hearing under paragraph (a) and to cross-examine and
call witnesses and to present any relevant evidence at the hearing.

Appearance of Attorney General

(4) The Attorney General may appear at the hearing held under paragraph (3)(a) without being deemed to intervene in the
proceeding.
Information deemed not to have been laid
(5) If the judge or designated justice does not issue a summons or warrant under subsection (2), he or she shall endorse the
information with a statement to that effect. Unless the informant, not later than six months after the endorsement, commences
proceedings to compel the judge or designated justice to issue a summons or warrant, the information is deemed never to
have been laid.
Information deemed not to have been laid proceedings commenced
(6) If proceedings are commenced under subsection (5) and a summons or warrant is not issued as a result of those
proceedings, the information is deemed never to have been laid.
New evidence required for new hearing
(7) If a hearing in respect of an offence has been held under paragraph (3)(a) and the judge or designated justice has not
issued a summons or a warrant, no other hearings may be held under that paragraph with respect to the offence or an included
offence unless there is new evidence in support of the allegation in respect of which the hearing is sought to be held.
Subsections 507(2) to (8) to apply
(8) Subsections 507(2) to (8) apply to proceedings under this section.
Non-application informations laid under sections 810 and 810.1
(9) Subsections (1) to (8) do not apply in respect of an information laid under section 810 or 810.1.
Definition of designated justice
(10) In this section, designated justice means a justice designated for the purpose by the chief judge of the provincial court
having jurisdiction in the matter or, in Quebec, a justice designated by the chief judge of the Court of Quebec.
Meaning of Attorney General
(11) In this section, Attorney General includes the Attorney General of Canada and his or her lawful deputy in respect of
proceedings that could have been commenced at the instance of the Government of Canada and conducted by or on behalf of
that Government.
Evidence
540 (7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but
that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a
witness in writing or otherwise recorded.
Notice of intention to tender
(8) Unless the justice orders otherwise, no information may be received as evidence under subsection (7) unless the party has
given to each of the other parties reasonable notice of his or her intention to tender it, together with a copy of the statement, if
any, referred to in that subsection.
Appearance for examination
(9) The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for
examination or cross-examination with respect to information intended to be tendered as evidence under subsection (7).

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Attorney General may direct stay

579 (1) The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings in relation
to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make
an entry on the record that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter,
whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated.
When Attorney General does not stay proceedings
579.01 If the Attorney General intervenes in proceedings and does not stay them under section 579, he or she may, without
conducting the proceedings, call witnesses, examine and cross-examine witnesses, present evidence and make submissions.
Plea of justification necessary
612 (1) The truth of the matters charged in an alleged libel shall not be inquired into in the absence of a plea of justification
under section 611 unless the accused is charged with publishing the libel knowing it to be false, in which case evidence of the
truth may be given to negative the allegation that the accused knew that the libel was false.
Appeal in mandamus, etc.
784 (1) An appeal lies to the court of appeal from a decision granting or refusing the relief sought in proceedings by way of
mandamus, certiorari or prohibition.
Application of Part XXI
(2) Except as provided in this section, Part XXI applies, with such modifications as the circumstances require, to appeals
under this section.

End of Document Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.

Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 20
DARREN JOHN ALEX BALLINGALL et al Court File No: C62056
Plaintiff and Defendants

COURT OF APPEAL FOR ONTARIO

Proceeding commenced at Toronto

SUPPLEMENTARY BOOK OF AUTHORITIES

OF THE PLAINTIFF
(APPELLANT)

ZEMEL VAN KAMPEN LLP

401 Bay St. Suite 1600
Toronto, ON, M5H 2Y4

Maanit Zemel LSUC#: 51603U

Tel: 416.937.9321
Fax: 647.795.2645
Email: maanit@canadatechlaw.com

OMAR HA-REDEYE PROFESSIONAL CORPORATION

526 Richmond St. East
Toronto, ON, M5A 1R3

Omar Ha-Redeye, LSUC# 60456R

Tel: 416-546-7412
Fax: 416-546-7412
Email: Omar@fleetstreetlaw.com

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

 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)

FURTHER SUPPLEMENTARY BOOK OF AUTHORITIES OF THE

PLAINTIFF (APPELLANT)

April 23, 2017 ZEMEL VAN KAMPEN LLP

401 Bay St., Suite 1600
Toronto, ON, M5H 2Y4

Maanit Zemel (LSUC#: 51603U)

Tel: 416.855-0445
Cell: 416.937.9321
Fax: 647.795.2645
Email: maanit@canadatechlaw.com

Lawyer (co-counsel) for the Plaintiff

(Appellant)

- and -
 OMAR HA-REDEYE PROFESSIONAL
CORPORATION
526 Richmond St. East
Toronto, ON, M5A 1R3

Omar Ha-Redeye (LSUC #: 60456R)

Tel: 416-546-7412
Fax: 416-546-7412
Email: Omar@fleetstreetlaw.com

Lawyer (co-counsel) for the Plaintiff

(Appellant)

TO: BLAKE, CASSELS & GRAYDON LLP

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

Iris Fischer (LSUC#52762M)

Tel: 416.863.4274
Email: 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)

 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)

TABLE OF CONTENTS

TAB DESCRIPTION

1. Legislation Act 2006, S.O. 2006, c. 21, Sched. F, ss. 46, 47, 56, 64, 85,
87 newspaper

2. Interpretation Act, R.S.O. 1990, c. I.11 (repealed July 25, 2007)

 Legislation Act 2006, S.O. 2006, c. 21, Sched. F, ss. 46, 47, 56, 64, 85, 87
newspaper
46. Every provision of this Part applies to every Act and regulation. 2006, c. 21, Sched. F,
s. 46.
47. Section 46 applies unless,
(a) a contrary intention appears; or
(b) its application would give to a term or provision a meaning that is inconsistent with the
context. 2006, c. 21, Sched. F, s. 47.
56. (1) The repeal, revocation or amendment of an Act or regulation does not imply anything
about the previous state of the law or that the Act or regulation was previously in force. 2006,
c. 21, Sched. F, s. 56 (1).
(2) The amendment of an Act or regulation does not imply that the previous state of the law
was different. 2006, c. 21, Sched. F, s. 56 (2).
(3) The re-enactment, remaking, amendment or changing under Part V (Change Powers) of an
Act or regulation does not imply an adoption of any judicial or other interpretation of the
language used in the Act or regulation, or of similar language. 2006, c. 21, Sched. F, s. 56 (3).
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.
85. If a term is defined, other forms of the same term have corresponding meanings.
87. In every Act and regulation,
newspaper, in a provision requiring publication, means a document that,
(a) is printed in sheet form, published at regular intervals of a week or less and
circulated to the general public, and
(b) consists primarily of news of current events of general interest; (journal)
Franais

Interpretation Act

R.S.O. 1990, CHAPTER I.11

Note: This Act was repealed on July 25, 2007. See: 2006, c. 21, Sched. F, ss. 134, 143 (1).
Amended by: 1993, c. 27, Sched.; 1994, c. 27, s. 47; 1998, c. 18, Sched. G, s. 61; 1999, c. 12, Sched. B, s. 10;
2000, c. 26, Sched. A, s. 9; 2002, c. 17, Sched. F, Table; 2002, c. 18, Sched. N, s. 17; 2006, c. 19, Sched. B, s. 11;
2006, c. 19, Sched. C, s. 1 (1); 2006, c. 21, Sched. F, s. 134.

Application of Act
1. (1) The provisions of this Act apply to every Act of the Legislature contained in these Revised Statutes or
here-after passed, except in so far as any such provision,
(a) is inconsistent with the intent or object of the Act;
(b) would give to a word, expression or provision of the Act an interpretation inconsistent with the context; or
(c) is in the Act declared not applicable thereto. R.S.O. 1990, c. I.11, s. 1 (1).
Application of certain sections to regulations
(2) Sections 2, 4, 9, 28 and 29 apply to the regulations made under the authority of an Act. R.S.O. 1990, c. I.11,
s. 1 (2).
Interpretation provisions in other Acts
2. Where an Act contains an interpretation provision, it shall be read and construed as subject to the exceptions
contained in subsection 1 (1). R.S.O. 1990, c. I.11, s. 2.
Application to this Act
3. The provisions of this Act apply to the construction of it and to the words and expressions used in it. R.S.O.
1990, c. I.11, s. 3.
RULES OF CONSTRUCTION
Law always speaking
4. The law shall be considered as always speaking and, where a matter or thing is expressed in the present tense,
it is to be applied to the circumstances as they arise, so that effect may be given to each Act and every part of it
according to its true intent and meaning. R.S.O. 1990, c. I.11, s. 4.
What may be done under an Act before it is in operation
5. Where an Act is not to come into operation immediately on the passing thereof and confers power to make an
appointment, to make, grant or issue an order, warrant, scheme, letters patent, rules, regulations or by-laws, to give
notices, to prescribe forms, or to do any thing for the purposes of the Act, that power may be exercised at any time
after the passing of the Act, but an instrument made under the power, unless the contrary is necessary for bringing
the Act into operation, does not come into operation until the Act comes into operation. R.S.O. 1990, c. I.11, s. 5.
Meaning of expressions used in instruments issued under an Act
6. Where an Act confers power to make, grant or issue an order, warrant, scheme, letters patent, rule, regulation
or by-law, expressions used therein, unless the contrary intention appears, have the same meaning as in the Act
conferring the power. R.S.O. 1990, c. I.11, s. 6.
Judicial notice
7. (1) Every Act shall be judicially noticed by judges, justices of the peace and others without being specially
pleaded. R.S.O. 1990, c. I.11, s. 7 (1).
Idem
(2) Every proclamation shall be judicially noticed by judges, justices of the peace and others without being
specially pleaded. R.S.O. 1990, c. I.11, s. 7 (2).
Effect of preamble
8. The preamble of an Act shall be deemed a part thereof and is intended to assist in explaining the purport and
object of the Act. R.S.O. 1990, c. I.11, s. 8.
Marginal notes, headings, etc., not part of Act
9. The marginal notes and headings in the body of an Act and references to former enactments form no part of
the Act but shall be deemed to be inserted for convenience of reference only. R.S.O. 1990, c. I.11, s. 9.
All Acts remedial
10. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of any thing
that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to
be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and
interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and
spirit. R.S.O. 1990, c. I.11, s. 10.
The Crown
11. No Act affects the rights of Her Majesty, Her heirs or successors, unless it is expressly stated therein that
Her Majesty is bound thereby. R.S.O. 1990, c. I.11, s. 11.
Private Acts
12. No Act of the nature of a private Act affects the rights of any person, or body corporate, politic or collegiate,
such only excepted as are therein mentioned or referred to. R.S.O. 1990, c. I.11, s. 12.
REPEAL, AMENDMENT AND CONSOLIDATION
Reservation of power to repeal or amend
13. Every Act shall be construed as reserving to the Legislature the power of repealing or amending it, and of
revoking, restricting, or modifying any power, privilege or advantage thereby vested in or granted to any person or
party, whenever the repeal, amendment, revocation, restriction or modification is considered by the Legislature to
be required for the public good. R.S.O. 1990, c. I.11, s. 13.
Repeal, effect
14. (1) Where an Act is repealed or where a regulation is revoked, the repeal or revocation does not, except as
in this Act otherwise provided,
(a) revive any Act, regulation or thing not in force or existing at the time at which the repeal or revocation takes
effect;
(b) affect the previous operation of any Act, regulation or thing so repealed or revoked;
(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the Act,
regulation or thing so repealed or revoked;
(d) affect any offence committed against any Act, regulation or thing so repealed or revoked, or any penalty or
forfeiture or punishment incurred in respect thereof;
(e) affect any investigation, legal proceeding or remedy in respect of any such privilege, obligation, liability,
penalty, forfeiture or punishment,
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such
penalty, forfeiture or punishment may be imposed as if the Act, regulation or thing had not been so repealed or
revoked. R.S.O. 1990, c. I.11, s. 14 (1).
When other provisions substituted
(2) If other provisions are substituted for those so repealed or revoked,
(a) all officers and persons acting under the Act, regulation or thing so repealed or revoked, shall continue to act
as if appointed under the provisions so substituted until others are appointed in their stead;
(b) all proceedings taken under the Act, regulation or thing so repealed or revoked, shall be taken up and
continued under and in conformity with the provisions so substituted, so far as consistently may be;
(c) in the recovery or enforcement of penalties and forfeitures incurred, and in the enforcement of rights
existing or accruing under the Act, regulation or thing so repealed or revoked, or in any other proceeding in
relation to matters that have happened before the repeal or revocation, the procedure established by the
substituted provisions shall be followed so far as it can be adapted; and
(d) if any penalty, forfeiture or punishment is reduced or mitigated by any of the provisions of the Act,
regulation or thing whereby such other provisions are substituted, the penalty, forfeiture or punishment, if
imposed or adjudged after such repeal or revocation, shall be reduced or mitigated accordingly. R.S.O.
1990, c. I.11, s. 14 (2).
Re-enactment, amendment, consolidation and revision
15. Where an Act is repealed and other provisions are substituted by way of re-enactment, amendment, revision
or consolidation,
(a) all regulations, orders, rules and by-laws made under the repealed Act continue good and valid in so far as
they are not inconsistent with the substituted Act until they are annulled and others made in their stead; and
(b) a reference in an unrepealed Act, or in a rule, order or regulation made thereunder to such repealed Act,
shall, as regards any subsequent transaction, matter or thing be held and construed to be a reference to the
provisions of the substituted Act relating to the same subject-matter and, if there is no provision in the
substituted Act relating to the same subject-matter, the repealed Act stands good and shall be read and
construed as unrepealed in so far, and in so far only, as is necessary to support, maintain or give effect to
such unrepealed Act, or such rule, order or regulation made thereunder. R.S.O. 1990, c. I.11, s. 15.
Repeal of Act not a declaration that Act was in force
16. The repeal of an Act shall be deemed not to be or to involve a declaration that the Act was or was considered
by the Legislature to have been previously in force. R.S.O. 1990, c. I.11, s. 16.
Repeal or amendment not a declaration of previous law
17. The repeal or amendment of an Act shall be deemed not to be or to involve any declaration as to the
previous state of the law. R.S.O. 1990, c. I.11, s. 17.
Amendment of Act not a declaration of different state of law
18. The amendment of an Act shall be deemed not to be or to involve a declaration that the law under the Act
was or was considered by the Legislature to have been different from the law as it has become under the Act as so
amended. R.S.O. 1990, c. I.11, s. 18.
Re-enactment, etc., not an adoption of judicial construction
19. The Legislature shall not, by re-enacting, revising, consolidating or amending an Act, be deemed to have
adopted the construction that has by judicial decision or otherwise been placed upon the language used in the Act
or upon similar language. R.S.O. 1990, c. I.11, s. 19.
DEATH OF SOVEREIGN
Death of Sovereign
20. Where a reigning Sovereign dies, no rule or construction of law shall be applied so as to prevent the
continuation of any matter under the successor to the Crown as if the death had not occurred. R.S.O. 1990, c. I.11,
s. 20.
PROCLAMATIONS
Lieutenant Governor acting by proclamation
21. Where the Lieutenant Governor is authorized to do any act by proclamation, the proclamation is to be
understood to be a proclamation issued under an order of the Lieutenant Governor in Council, but it is not
necessary for the proclamation to mention that it is issued under such an order. R.S.O. 1990, c. I.11, s. 21.
CROWN APPOINTMENTS
Tenure of office
22. Authority to the Lieutenant Governor to make an appointment to an office, by commission or otherwise,
shall be deemed authority to appoint during pleasure. R.S.O. 1990, c. I.11, s. 22.
REGULATIONS
Regulations
23. The Lieutenant Governor in Council may make regulations for the due enforcement and carrying into effect
of any Act of the Legislature and, where there is no provision in the Act, may prescribe forms and may fix fees to
be charged by all officers and persons by whom anything is required to be done. R.S.O. 1990, c. I.11, s. 23.
Approved form instead of prescribed form
23.1 (1) If an Act contains power to prescribe a form by regulation, the minister who administers the Act may,
(a) approve a form, including an electronic form, to be used instead of the prescribed form; and
(b) make a regulation under the Act revoking the existing prescribed form, if any. 1994, c. 27, s. 47.
Same
(2) If a form has been approved under clause (1) (a) but the Act requires the use of a prescribed form or contains
power to make a regulation requiring its use, the minister who administers the Act may make a regulation under the
Act requiring the use of the approved form, and no form need be prescribed. 1994, c. 27, s. 47.
IMPRISONMENT
24. REPEALED: 2002, c. 18, Sched. N, s. 17.
Hard labour
25. Where power to impose imprisonment is conferred by an Act, it shall be deemed to authorize the imposing
of imprisonment with hard labour. R.S.O. 1990, c. I.11, s. 25.
OFFENCE UNDER MORE THAN ONE PROVISION
Offence under more than one provision
26. Where an act or omission constitutes an offence under two or more Acts, the offender, unless the contrary
intention appears, is liable to be prosecuted and punished under either or any of those Acts, but is not liable to be
punished twice for the same act or omission. R.S.O. 1990, c. I.11, s. 26.
CORPORATIONS
Effect of words constituting a corporation
27. In every Act, unless the contrary intention appears, words making any association or number of persons a
corporation or body politic and corporate,
(a) vest in the corporation power to sue and be sued, to contract and be contracted with by its corporate name, to
have a common seal, to alter or change the seal at its pleasure, to have perpetual succession, to acquire and
hold personal property or movables for the purpose for which the corporation is constituted, and to alienate
the same at pleasure;
(b) vest in a majority of the members of the corporation the power to bind the others by their acts; and
(c) exempt individual members of the corporation from personal liability for its debts, obligations or acts if they
do not contravene the provisions of the Act incorporating them. R.S.O. 1990, c. I.11, s. 27.
IMPLIED PROVISIONS
Implied provisions,
28. In every Act, unless the contrary intention appears,
as to jurisdiction
(a) where anything is directed to be done by or before a provincial judge or a justice of the peace or other public
functionary or officer, it shall be done by or before one whose jurisdiction or powers extend to the place
where it is to be done;
implied powers
(b) where power is given to a person, officer or functionary to do or to enforce the doing of an act or thing, all
such powers shall be understood to be also given as are necessary to enable the person, officer or
functionary to do or enforce the doing of the act or thing;
acts to be done by more than two
(c) where an act or thing is required to be done by more than two persons, a majority of them may do it;
deviation from forms
(d) where a form is prescribed, deviations therefrom not affecting the substance or calculated to mislead do not
vitiate it;
powers and duties to be exercised and performed from time to time
(e) where a power is conferred or a duty is imposed on the holder of an office as such, the power may be
exercised and the duty shall be performed from time to time as occasion requires;
to be exercised and performed by holder of office for time being
(f) where a power is conferred or a duty is imposed on the holder of an office as such, the power may be
exercised and the duty shall be performed by the holder of the office for the time being;
power to make by-laws, etc., to confer power to alter
(g) where power is conferred to make by-laws, regulations, rules or orders, it includes power to alter or revoke
the same from time to time and make others;
computation of time where time limited expires on a holiday
(h) where the time limited by an Act for a proceeding or for the doing of any thing under its provisions expires
or falls upon a holiday, the time so limited extends to and the thing may be done on the day next following
that is not a holiday;
idem
(i) where the time limited for a proceeding or for the doing of any thing in a court office, a land registry office
or a sheriffs office expires or falls on a day that is prescribed as a holiday for that office, the time so limited
extends to and the thing may be done on the day next following that is not a holiday;
number and gender
(j) words importing the singular number or the masculine gender only include more persons, parties or things of
the same kind than one, and females as well as males and the converse;
idem
(k) a word interpreted in the singular number has a corresponding meaning when used in the plural;
words authorizing appointment include power to remove
(l) words authorizing the appointment of a public officer or functionary, or a deputy, include the power of
removing or reappointing the person or appointing another in or to act in his or her stead, from time to time
in the discretion of the authority in whom the power of appointment is vested;
directions to public officer to apply to successors and deputy
(m) words directing or empowering a public officer or functionary to do an act or thing, or otherwise applying to
the public officer by his or her name of office, include his or her successors in office and lawful deputy;
reference to sections by numbers
(n) where reference is made by number or letter to two or more sections, subsections, paragraphs, clauses or
other provisions in an Act, the number or letter first mentioned and the one last mentioned shall both be
deemed to be included in the reference;
words authorizing appointment include power to appoint deputy
(o) words authorizing the appointment of a public officer or functionary or the appointment of a person to
administer an Act include the power of appointing a deputy to perform and have all the powers and authority
of such public officer or functionary or person to be exercised in such manner and upon such occasions as
are specified in the instrument appointing him or her, or such limited powers and authority as the instrument
prescribes. R.S.O. 1990, c. I.11, s. 28; 1999, c. 12, Sched. B, s. 10.
 WORDS AND TERMS
Words and terms
29. (1) In every Act, unless the context otherwise requires,
Act includes enactment; (loi)
affidavit, in the case of persons allowed by law to affirm or declare instead of swearing, includes affirmation and
declaration; (affidavit)
Assembly means the Legislative Assembly of Ontario; (Assemble)
county includes two or more counties united for purposes to which the Act relates; (comt)
Court of Appeal means the Court of Appeal for Ontario; (Cour dappel)
Divisional Court means the Divisional Court of the Superior Court of Justice; (Cour divisionnaire)
Great Seal means the Great Seal of Ontario; (grand sceau)
herein used in a provision of an Act relates to the whole Act and not to that provision only; (ci-inclus, dans
les prsentes)
Her Majesty, His Majesty, the Queen, the King or the Crown means the Sovereign of the United
Kingdom, Canada and Her other Realms and Territories, and Head of the Commonwealth; (Sa Majest, la
Reine, le Roi, la Couronne)
holiday includes Sunday, New Years Day, Good Friday, Easter Monday, Christmas Day, the birthday or the day
fixed by proclamation of the Governor General for the celebration of the birthday of the reigning Sovereign,
Victoria Day, Dominion Day, Labour Day, Remembrance Day, and any day appointed by proclamation of the
Governor General or the Lieutenant Governor as a public holiday or for a general fast or thanksgiving, and when
any holiday, except Remembrance Day, falls on a Sunday, the day next following is in lieu thereof a holiday;
(jour fri)
justice of the peace includes two or more justices of the peace or provincial judges assembled or acting together;
(juge de paix)
legally qualified medical practitioner, duly qualified medical practitioner, or any words importing legal
recognition of a person as a medical practitioner or member of the medical profession, means a member of the
College of Physicians and Surgeons of Ontario; (mdecin dment qualifi, mdecin dment qualifi pour
exercer sa profession)
Lieutenant Governor means the Lieutenant Governor of Ontario, or the chief executive officer or administrator
for the time being carrying on the government of Ontario by whatever title that person is designated;
(lieutenant-gouverneur)
Lieutenant Governor in Council means the Lieutenant Governor of Ontario or the person administering the
government of Ontario for the time being acting by and with the advice of the Executive Council of Ontario;
(lieutenant-gouverneur en conseil)
mental illness means the condition of mind of a mentally ill person; (maladie mentale)
mental incompetency means the condition of mind of a mentally incompetent person; (incapacit mentale)
mental incompetent and mentally incompetent person means a person,
(i) in whom there is such a condition of arrested or incomplete development of mind, whether arising from
inherent causes or induced by disease or injury, or
(ii) who is suffering from such a disorder of the mind,
that the person requires care, supervision and control for his or her protection and the protection of his or her
property; (incapable mental, personne frappe dincapacit mentale)
mentally ill person means a person, other than a mental defective, who is suffering from such a disorder of the
mind that he or she requires care, supervision and control for his or her own protection or welfare, or for the
protection of others; (malade mental)
month means a calendar month; (mois)
newspaper, in a provision requiring publication in a newspaper, means a printed publication in sheet form,
intended for general circulation, published regularly at intervals of not longer than a week, consisting in great
 part of news of current events of general interest and sold to the public and to regular subscribers; (journal)
now, next, heretofore and hereafter shall be construed as having reference to the date of the coming into
force of the Act; (maintenant, prochainement, jusquici, dornavant)
oath, in the case of persons allowed by law to affirm or declare instead of swearing, includes affirmation and
declaration; (serment)
peace officer includes a mayor, warden, reeve, sheriff, deputy sheriff, sheriffs officer, and justice of the peace,
and also the superintendent, governor, jailer, keeper, guard or any other officer or permanent employee of a
correctional institution, and also a police officer, bailiff, constable or other person employed for the preservation
and maintenance of the public peace or for the service or execution of civil process; (agent de la paix)
person includes a corporation and the heirs, executors, administrators or other legal representatives of a person to
whom the context can apply according to law; (personne)
proclamation means a proclamation under the Great Seal; (proclamation)
registrar includes a deputy registrar; (greffier, registrateur, registraire, prpos aux registres)
rules committee means a rules committee established under the Courts of Justice Act; (comit des rgles)
rules of court, when used in relation to a court, means rules made by the authority having power to make rules or
orders regulating the practice and procedure of such court, or for the purpose of an Act directing or authorizing
anything to be done by rules of court; (rgles de pratique)
security means sufficient security, and sureties means sufficient sureties, and where these words are used, one
person is sufficient therefor unless otherwise expressly required; (caution, cautionnement)
swear, in the case of persons for the time being allowed by law to affirm or declare instead of swearing, includes
affirm and declare, and sworn has a corresponding meaning; (prter serment, sous serment, asserment)
writing, written, or any term of like import, includes words printed, painted, engraved, lithographed,
photographed, or represented or reproduced by any other mode in a visible form; (crit)
year means a calendar year. (an, anne) R.S.O. 1990, c. I.11, s. 29 (1); 1993, c. 27, Sched.; 1998, c. 18,
Sched. G, s. 61; 2006, c. 19, Sched. B, s. 11; 2006, c. 19, Sched. C, s. 1 (1).
Imperative and permissive forms
(2) In the English version of an Act, the word shall shall be construed as imperative and the word may as
permissive. In the French version, obligation is usually expressed by the use of the present indicative form of the
relevant verb, and occasionally by other verbs or expressions that convey that meaning; the conferring of a power,
right, authorization or permission is usually expressed by the use of the verb pouvoir, and occasionally by other
expressions that convey those meanings. R.S.O. 1990, c. I.11, s. 29 (2).
SPECIAL INTERPRETATION CLAUSES
Legal matters
30. The interpretation section of the Courts of Justice Act extends to all Acts relating to legal matters. R.S.O.
1990, c. I.11, s. 30; 1993, c. 27, Sched.
Immunity provisions
30.1 (1) Where words referring to actions or other proceedings for damages are used in a provision excluding or
limiting the liability of the Crown or any other person, third or subsequent party proceedings and proceedings for
contribution and indemnity or restitution are included. 2000, c. 26, Sched. A, s. 9.
Transition
(2) Subsection (1) applies in respect of proceedings commenced on or after October 4, 2000. 2000, c. 26,
Sched. A, s. 9.
31. REPEALED: 2002, c. 17, Sched. F, Table.
______________
DARREN JOHN ALEX BALLINGALL et al Court File No: C62056
Plaintiff and Defendants

COURT OF APPEAL FOR ONTARIO

Proceeding commenced at Toronto

FURTHER SUPPLEMENTARY BOOK OF AUTHORITIES

OF THE PLAINTIFF
(APPELLANT)

ZEMEL VAN KAMPEN LLP

401 Bay St. Suite 1600
Toronto, ON, M5H 2Y4

Maanit Zemel LSUC#: 51603U

Tel: 416.937.9321
Fax: 647.795.2645
Email: maanit@canadatechlaw.com

OMAR HA-REDEYE PROFESSIONAL CORPORATION

526 Richmond St. East
Toronto, ON, M5A 1R3

Omar Ha-Redeye, LSUC# 60456R

Tel: 416-546-7412
Fax: 416-546-7412
Email: Omar@fleetstreetlaw.com

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