Alberta Adolescent Recovery Centre v. Canadian Broadcasting Corp. et al., (2012) 541 A.R. 1 (QB)

• Judge: Martin, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 19, 2012
• Citations: (2012), 541 A.R. 1 (QB);2012 ABQB 48

Alta. Adolescent Recovery Centre v. CBC (2012), 541 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JA.115

Alberta Adolescent Recovery Centre (plaintiff) v. Canadian Broadcasting Corporation, Gillian Findlay, Morris Karp and David Studer (defendants)

(1101 05339; 2012 ABQB 48)

Indexed As: Alberta Adolescent Recovery Centre v. Canadian Broadcasting Corp. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Martin, J.

January 19, 2012.

Summary:

The plaintiff sued the CBC and three individual defendants, claiming that the CBC broadcast a program defamatory to the plaintiff. The three individual defendants (the writer/host of the program; the producer/director; and the executive producer) moved to strike the plaintiff's claim against them, under both the Defamation Act and rule 3.68 (failure to disclose a cause of action). They argued that they did not receive the notice required under s. 13 of the Defamation Act, with the result that "no action lies" against them.

The Alberta Court of Queen's Bench denied the motion. The complex issues were best left to trial.

Libel and Slander - Topic 6063

Practice - Notice - Requirement of service of - [See second Practice - Topic 5719 ].

Libel and Slander - Topic 6067

Practice - Notice - Sufficiency of service of - [See third Practice - Topic 5719 ].

Practice - Topic 865

Parties - Striking out parties - Lack of cause of action - [See first Practice - Topic 5719 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See first Practice - Topic 5719 ].

Practice - Topic 2237.1

Pleadings - Striking out pleadings - Grounds - Failure to comply with conditions precedent - [See third Practice - Topic 5719 ].

Practice - Topic 2249

Pleadings - Striking out pleadings - Bars - Issues to be tried - [See first Practice - Topic 5719 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See first Practice - Topic 5719 ].

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See third Practice - Topic 5719 ].

Practice - Topic 5710

Judgments and orders - Summary judgments - Evidence - [See third Practice - Topic 5719 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - The plaintiff sued the CBC and three individual defendants, claiming that the CBC broadcast a program defamatory to the plaintiff - The three individual defendants (the writer/host of the program; the producer/director; and the executive producer) moved to strike the plaintiff's claim against them, under both the Defamation Act and rule 3.68 (failure to disclose a cause of action) - They argued that they did not receive the notice required under s. 13 of the Defamation Act (by personal service), with the result that "no action lies" against them - The motion raised fundamental issues concerning if and how the Act applied to both an initial television broadcast and its availability on the internet; the nature of the cause of action; whether a proper notice served on a corporation bound its individual employees who were also sued in defamation; and whether the service requirements set out in the Act allowed substantial compliance - The Alberta Court of Queen's Bench found that those complex issues were best left to trial to be decided after full evidence and argument - See paragraphs 1 and 2.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - The plaintiff sued the CBC and three individual defendants, claiming that the CBC broadcast a program defamatory to the plaintiff - The three individual defendants, employees of the CBC, moved to strike the claim against them - They argued that the plaintiff failed to give them notice of its intention to sue, required under s. 13 of the Defamation Act - The Alberta Court of Queen's Bench stated that a plain reading of the Act and an analysis of the case law suggested that "where both the employees of a broadcaster and the broadcaster are sued for defamation, both are entitled to notice. ... Since both broadcasting entities and their employees can be involved in, and sued for, defamatory broadcasts, the purpose of the notice provisions is advanced by requiring that both receive notice. The issue is uncertain and it is not my function to decide it, but only to determine whether the uncertainty is strong enough to prevent the Defendants from succeeding on this application." - In the end result, the court found that the issue was best left to trial to be decided after full evidence and argument - See paragraph 48.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - The plaintiff sued the CBC and three individual defendants, claiming that the CBC broadcast a program defamatory to the plaintiff - The three individual defendants (the writer/host of the program; the producer/director; the executive producer) moved to strike the plaintiff's claim against them, under both the Defamation Act and rule 3.68 (failure to disclose a cause of action) - The Alberta Court of Queen's Bench denied the motion - Five complex issues illustrated that summary dismissal was not possible - The fifth issue was the key obstacle - That issue turned on whether and if so, when and how, the individual defendants became aware of the allegations made against them and the plaintiff's intention to sue them - Under s. 13(1) of the Defamation Act, "no action lies" unless a defendant had notice in writing of the plaintiff's intention to bring an action, specifying the defamatory matter complained of - Section 13(2) outlined how that notice was to be brought to a defendant's attention (service in the same manner as a statement of claim) - The individual defendants were not personally served with the notices - However, there was no evidence as to whether they were given copies of the notices by others at the CBC or received notice in some other fashion - It was not plain and obvious that the plaintiffs would fail on its substantial compliance argument - "As the law probably permits substantial compliance, the absence of any evidence about what the individual Defendants actually knew about the Notice means there is a gap in the Defendants' evidentiary foundation for summary dismissal. In my view, it is incumbent on the Defendants to establish facts on which it can be clearly argued that substantial compliance is not available to the Plaintiffs." - See paragraphs 49 to 75.

Cases Noticed:

Paletta and Palmont Packers Ltd. v. Lethbridge Herald Co. et al. (1976), 2 A.R. 529; 2 Alta.L.R.(2d) 166 (T.D.), refd to. [para. 20].

Grossman v. C.F.T.O.-T.V. Ltd. (1982), 39 O.R.(2d) 498; 139 D.L.R.(3d) 618 (C.A.), refd to. [para. 20].

Alberta Union of Provincial Employees et al. v. Edmonton Sun et al. (1986), 75 A.R. 253 (Q.B.), refd to. [para. 20].

Donaldson v. Farrell et al., [2011] A.R. Uned. 51; 2011 ABQB 11, refd to. [para. 26].

Martin v. General Teamsters, Local Union No. 362, [2011] A.R. Uned. 484; 2011 ABQB 412, refd to. [para. 26].

V.W.W. v. Leung (2011), 530 A.R. 82; 2011 ABQB 688, refd to. [para. 26].

Wong v. Leung - see V.W.W. v. Leung.

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204; 186 D.L.R.(4th) 226; 2000 ABCA 121, refd to. [para. 27].

Chevalier et al. v. Sunshine Village Corp. et al. (2011), 516 A.R. 5; 2011 ABQB 544 (Master), refd to. [para. 28].

Wanke v. University of Calgary, [2011] A.R. Uned. 354; 2011 ABCA 235, refd to. [para. 29].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 29].

Barcan v. Zorkin (1987), 55 Alta. L.R.(2d) 210 (C.A.), refd to. [para. 30].

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 37].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 39].

Emonts v. McKeever, 1992 CarswellOnt 3845 (Gen. Div.), refd to. [para. 47].

Boyer v. Toronto Life Publishing Co. et al., [2000] O.T.C. 196; 48 O.R.(3d) 383 (Sup. Ct.), refd to. [para. 47].

Janssen-Ortho Inc. v. Amgen Canada Inc. et al. (2005), 199 O.A.C. 89; 256 D.L.R.(4th) 407 (C.A.), refd to. [para. 47].

Buro v. Southam Press Ltd., [1974] 6 W.W.R. 504 (Alta. S.C. Master), refd to. [para. 53].

Reis Lighting Products & Services Ltd. et al. v. Westcom Radio Group Ltd. et al. (1996), 113 Man.R.(2d) 129; 131 W.A.C. 129 (C.A.), refd to. [para. 54].

Fegol v. National Post Co. et al. (2008), 227 Man.R.(2d) 293; 2008 MBQB 84 (Master), refd to. [para. 55].

Knott v. Telegram printing Co., [1917] 3 W.W.R. 335 (S.C.C.), refd to. [para. 57].

Sentinel-Review Co. v. Robinson, [1928] S.C.R. 258, refd to. [para. 58].

Statutes Noticed:

Defamation Act, R.S.A. 2000, c. D-7, sect. 12 [para. 42]; sect. 13 [para. 21]; sect. 15(1) [para. 22].

Rules of Court (Alta.) (2010), rule 3.68 [para. 25].

Authors and Works Noticed:

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed. 1999) (Looseleaf), vol. 5, c. 17, p. 217 [para. 47].

Counsel:

Grant Stapon, Q.C., for the plaintiff, Alberta Adolescent Recovery Centre;

Fred Kozak, Q.C., and Matthew Woodley, for the defendants, Canadian Broadcasting Corporation et al.

This motion was heard on November 8 and 10, 2011, before Martin, J., of the Alberta Court of Queen's Bench, who delivered the following memorandum of decision, dated at Calgary, Alberta, on January 19, 2012.