Butler et al. v. Southam Inc. et al., 2001 NSCA 121

• Judge: Roscoe, Chipman and Cromwell, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 31, 2001
• Jurisdiction: Nova Scotia
• Citations: 2001 NSCA 121;(2001), 197 N.S.R.(2d) 97 (CA)

Butler v. Southam Inc. (2001), 197 N.S.R.(2d) 97 (CA);

 616 A.P.R. 97

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. SE.009

D. Wayne Butler, Floyd Hemeon, Heikke Muinonen, Millard MacKenzie and Lee Keating (appellants) v. Southam Inc., as publisher of the Daily News and Parker Barss Donham (respondents)

(CA 169237; 2001 NSCA 121)

Indexed As: Butler et al. v. Southam Inc. et al.

Nova Scotia Court of Appeal

Roscoe, Chipman and Cromwell, JJ.A.

September 7, 2001.

Summary:

The plaintiffs sued the defendant news­paper and others for defamation. The de­fendants applied to strike both the notice of intended action and the action as out of time. They also sought an order striking the state­ment of claim as not disclosing a cause of action in that the words complained of were not capable of referring to the plaintiffs.

The Nova Scotia Supreme Court, in a de­cision reported 191 N.S.R.(2d) 158; 596 A.P.R. 158, allowed the application to strike both the notice of intended action and the action as out of time. The court opined that all the allegations of defamation in the state­ment of claim, except one, should be struck as not disclosing a cause of action in that the words complained of were not capable of re­ferring to the plaintiffs. The plaintiffs ap­pealed.

The Nova Scotia Court of Appeal allowed the appeal in part respecting some of the plaintiffs.

Libel and Slander - Topic 1400

Identification of person defamed - General - Butler, Keating and others had been employees of a boys' school - They sued the defendant newspaper and others for defamation respecting several articles alleging abuse in several boys' schools - A chambers judge opined that all the alle­gations of defamation in the statement of claim, except one, should be struck as not disclosing a cause of action in that the words complained of in several newspaper articles were not capable of referring to the plaintiffs - On appeal, the plaintiffs Butler and Keating argued that it was open to a jury to conclude that they were described as "accused guards" in one article and therefore were referred to in earlier articles which made allegations in relation to "guards" and the school's employees gen­erally - The Nova Scotia Court of Appeal agreed that the statement of claim relating to the earlier articles should not have been struck out in relation to these two plaintiffs - See paragraphs 39 to 48.

Libel and Slander - Topic 1405

Identification of person defamed - General - Group defamation - The Nova Scotia Court of Appeal reviewed the law respect­ing group defamation and set out a non-ex­haustive list of relevant factors which could be considered in determining whether statements were clearly incapable of being defamatory of a plaintiff - See paragraphs 49 to 70.

Libel and Slander - Topic 1405

Identification of person defamed - General - Group defamation - The plaintiffs had been employees of a boys' school - They sued the defendant newspaper and others for defamation respecting several articles alleging abuse in several boys' schools - A chambers judge struck all the defamation allegations in the statement of claim, except one, as not disclosing a cause of action in that the words complained of in several newspaper articles were not capable of referring to the plaintiffs - On appeal, the plaintiffs argued that the allegations made in the articles were so sweeping and all-inclusive of their school's employees, that everyone who worked there was defamed by them - The Nova Scotia Court of Appeal agreed with the chambers judge that it was plain and obvious that none of the plaintiffs could reasonably be said to have been defamed by the allegations in these articles on the basis that the articles referred to school employees generally - See paragraphs 71 to 78.

Libel and Slander - Topic 1405

Identification of person defamed - General - Group defamation - The plaintiffs had been employees of a boys' school - They sued the defendant newspaper and others for defamation respecting several articles alleging abuse in several boys' schools - A chambers judge struck all the defamation allegations in the statement of claim, except one, as not disclosing a cause of action in that the words complained of in several newspaper articles were not capable of referring to the plaintiffs - On appeal, four plaintiffs argued that they were referred to in the articles by terms like managers, bureaucrats and similar group terms - The Nova Scotia Court of Appeal agreed with the chambers judge respecting two of these plaintiffs but held that he erred respecting the other two plaintiffs - See paragraphs 79 to 101.

Libel and Slander - Topic 6061

Practice - Notice - General - The plaintiffs sued the defendant newspaper and others for defamation - They failed to give the newspaper notice of their intended action within three months after the articles came to their attention (Defamation Act, s. 18(1)) - Their action was not commenced within the six month limitation period (s. 19) - A chambers judge struck both the notice of intended action and the action as out of time and refused to grant relief from the time limits under s. 3(2) of the Limita­tion of Actions Act (equitable considera­tions) - The Nova Scotia Court of Appeal held that the chambers judge erred in finding the delay by the plaintiffs Butler and Keating inordi­nate, in failing to give any weight to the prejudice to them caused by the limitation provisions and in finding that the delay prejudiced the defendants' defence on its merits - See paragraphs 123, 124 and 145 to 175.

Libel and Slander - Topic 6061

Practice - Notice - General - The plaintiffs sued the defendant newspaper and others for defamation - They failed to give the newspaper notice of their intended action within three months after the articles came to their attention (Defamation Act, s. 18(1)) - Their action was not commenced within the six month limitation period (s. 19) - A chambers judge struck both the notice of intended action and the action as out of time and refused to grant relief from the time limits under s. 3(2) of the Limita­tion of Actions Act (equitable consider­ations) - The Nova Scotia Court of Appeal reviewed the purposes of the Defamation Act limitation and notice periods and the purposes of s. 3 of the Limitation of Actions Act which permitted a court to disallow a time limitation defence - See paragraphs 125 to 144.

Libel and Slander - Topic 6128

Practice - Pleadings - Statement of claim - Defamation - Striking out pleadings - The Nova Scotia Court of Appeal stated that "the question for a judge on the prelimi­nary application to strike the statement of claim on the basis that the allegedly de­famatory statements were not published 'of and concerning' the plaintiff, is whether, on the facts alleged in the statement of claim, the allegedly defamatory statements are clearly (which term I equate with plainly and obviously) incapable of sup­porting a reasonable conclusion, by persons acquainted with the plaintiff, that the state­ments refer to the plaintiff. In answering this question, the role of the judge is not to give the articles a definitive interpretation. But that does not mean that the judge should not interpret the articles at all. Rather, it means that the judge must assess the range of meanings which the articles could reasonably bear from the perspective of the reasonable and sensible reader in light of the pleaded facts and apply to that range of meanings the appropriate legal standard. Only where it is plain and ob­vious that the words are incapable, in light of the pleaded facts, of being found by a reasonable and sensible reader to be de­famatory of the plaintiff should the state­ment of claim be struck out." - See para­graph 33.

Libel and Slander - Topic 6128

Practice - Pleadings - Statement of claim - Defamation - Striking out pleadings - [See Libel and Slander - Topic 1400 and second and third Libel and Slander - Topic 1405 ].

Limitation of Actions - Topic 13

Conflict between limitation periods - Sec­tion 19 of the Defamation Act provided that "notwithstanding the Statute of Limita­tions" the limitation period for an action under the Act was six months - Section 3 of the Limitation of Actions Act permitted the court to disallow a time limitation defence - The Nova Scotia Court of Appeal affirmed its earlier decision in MacIntyre v. Canadian Broadcasting Corp. that there was no conflict between those two Acts - Section 19 of the Defamation Act did not preclude disallowance of a limitation defence under s. 3 of the Limita­tion of Actions Act - Therefore, the court concluded that the chambers judge in this case rightly concluded that he had jurisdic­tion under s. 3 of the Limitation of Actions Act to relieve against the notice and limita­tions requirements in ss. 18 and 19 of the Defamation Act - See paragraphs 111 to 122.

Limitation of Actions - Topic 3244

Actions in tort - Libel and slander - Limi­tation periods - Application of - [See both Libel and Slander - Topic 6061 ].

Limitation of Actions - Topic 9614

Enlargement of time period - Application for - Considerations - [See both Libel and Slander - Topic 6061 ].

Limitation of Actions - Topic 9617

Enlargement of time period - Application for - Equitable grounds - Section 3(4)(e) of the Limitation of Actions Act provided that, in making a determination pursuant to s. 3(2) whether to disallow a time limita­tion defence based on equitable grounds, the court should consider the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action - The Nova Scotia Court of Appeal held that a chambers judge adopted too strict a test by looking for a condition that rendered the plaintiffs incapable of pur­suing their legal rights - The relevant consideration under s. 3(4)(e) was whether a plaintiff had reduced physical or mental abilities as a result of matters arising after the accrual of the cause of action which could excuse, in whole or in part, the plaintiff's failure to comply with the limi­tation provisions - See paragraph 153.

Limitation of Actions - Topic 9617

Enlargement of time period - Application for - Equitable grounds - [See both Libel and Slander - Topic 6061 ].

Cases Noticed:

Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 (H.L.), refd to. [para. 17].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 18].

Sykes v. Fraser, [1974] S.C.R. 526, refd to. [para. 23].

Arnott v. College of Physicians and Sur­geons (Sask.), [1954] S.C.R. 538, refd to. [para. 23].

Morgan v. Odhams Press Ltd., [1971] 2 All E.R. 1156 (H.L.), refd to. [para. 27].

Mouammar v. Bruner (1978), 84 D.L.R.(3d) 121 (Ont. H.C.), refd to. [para. 29].

Booth v. British Columbia Television Broadcasting System (1982), 139 D.L.R.(3d) 88 (B.C.C.A.), refd to. [para. 30].

Roach v. Random House of Canada Ltd. et al., [2000] O.T.C. 526 (Sup. Ct.), refd to. [para. 31].

Brady v. Ottaway Newspapers, 445 N.Y.S.2d 786 (App. Div.), refd to. [para. 31].

Elliott et al. v. Canadian Broadcasting Corp. et al. (1995), 82 O.A.C. 115; 125 D.L.R.(4th) 534 (C.A.), leave to appeal refused (1996), 201 N.R. 80; 93 O.A.C. 80 (S.C.C.), refd to. [para. 32].

Keating v. Southam Inc. et al. (2000), 189 N.S.R.(2d) 153; 590 A.P.R. 153 (S.C.), leave to appeal dismissed [2001] N.S.R.(2d) Uned. 6 (C.A.), refd to. [para. 32].

Aiken v. Ontario (Premier) - see Aiken et al. v. Harris.

Aiken et al. v. Harris (1999), 101 O.T.C. 294; 45 O.R.(3d) 266 (Sup. Ct.), refd to. [para. 32].

Aiken v. Police Review Publishing Co., [1995] E.W.J. No. 5681 (C.A.), refd to. [para. 32].

Hodgson v. Canadian Newspapers Co. et al. (1998), 68 O.T.C. 81; 39 O.R.(3d) 235 (Gen. Div.), varied (2000), 133 O.A.C. 174; 49 O.R.(3d) 161 (C.A.), leave to appeal refused (2001), 271 N.R. 394; 149 O.A.C. 399 (S.C.C.), refd to. [para. 35].

Boyer v. Toronto Life Publishing Co. et al., [2000] O.T.C. 196 (Sup. Ct.), refd to. [para. 35].

Capital & Counties Bank v. Henty (1882), 7 App. Cas. 741 (H.L.), refd to. [para. 35].

Hayward v. Thompson, [1982] 1 Q.B. 47 (C.A.), refd to. [para. 40].

Misir et al. v. Toronto Star Newspapers Ltd. et al. (1997), 105 O.A.C. 270 (C.A.), refd to. [para. 41].

A.U.P.E. v. Edmonton Sun et al. - see Alberta Union of Provincial Employees et al. v. Edmonton Sun et al.

Alberta Union of Provincial Employees et al. v. Edmonton Sun et al. (1986), 75 A.R. 253; 49 Alta. L.R.(2d) 141 (Q.B.), refd to. [para. 62].

Lennon v. Ontario (Premier) - see Lennon et al. v. Harris et al.

Lennon et al. v. Harris et al., [1999] O.T.C. 240; 45 O.R.(3d) 84 (Sup. Ct.), refd to. [para. 63].

Ryckman v. Delavan (1837), 17 Wend. 49 (N.Y. Sup. Ct.), refd to. [para. 70].

MacIntyre v. Canadian Broadcasting Corp. (1985), 70 N.S.R.(2d) 129; 166 A.P.R. 129 (C.A.), refd to. [para. 109].

MacCulloch v. McInnes Cooper & Robertson (1995), 140 N.S.R.(2d) 220; 399 A.P.R. 220 (C.A.), refd to. [para. 110].

Minkoff v. Poole and Lambert (1991), 101 N.S.R.(2d) 143; 275 A.P.R. 143 (C.A.), refd to. [para. 110].

Burke and Whalen v. MacKinnon (1985), 66 N.S.R.(2d) 346; 152 A.P.R. 346 (C.A.), refd to. [para. 113].

R. v. Greenshields, [1958] S.C.R. 216, refd to. [para. 113].

United Fishermen and Allied Workers' Union v. British Columbia (1994), 1 B.C.L.R.(3d) 151 (S.C.), refd to. [para. 113].

McGuire and McGuire v. Fermini (1984), 64 N.S.R.(2d) 60; 143 A.P.R. 60 (C.A.), refd to. [para. 126].

Grossman v. CFTO-TV Ltd. (1982), 39 O.R.(2d) 498 (C.A.), refd to. [para. 130].

Smith v. Clayton et al. (1994), 133 N.S.R.(2d) 157; 380 A.P.R. 157 (S.C.), refd to. [para. 138].

Anderson v. Co-Operative Fire & Casualty Co. (1983), 58 N.S.R.(2d) 163; 123 A.P.R. 163 (T.D.), affd. (1983), 62 N.S.R.(2d) 378; 136 A.P.R. 378 (C.A.), refd to. [para. 138].

Bollivar v. Hirtle Estate (1990), 97 N.S.R.(2d) 247; 258 A.P.R. 247 (C.A.), refd to. [para. 143].

Fern v. Christie Estate - see Cerny v. Christie Estate.

Cerny v. Christie Estate (1986), 76 N.S.R.(2d) 271; 189 A.P.R. 271 (T.D.), refd to. [para. 143].

Vickery v. Murphy and Yarmouth Regional Hospital (1986), 73 N.S.R.(2d) 429; 176 A.P.R. 429 (T.D.), refd to. [para. 143].

K.A.S. v. Reddick (1997), 160 N.S.R.(2d) 5; 473 A.P.R. 5 (C.A.), refd to. [para. 176].

Statutes Noticed:

Defamation Act, R.S.N.S. 1989, c. 122, sect. 17, sect. 18, sect. 19 [para. 104].

Interpretation Act, R.S.N.S. 1989, c. 235, sect. 9(5) [para. 120].

Limitation of Actions Act, R.S.N.S. 1989, c. 122, sect. 3(1), sect. 3(2), sect. 3(4) [para. 125].

Authors and Works Noticed:

American Law Institute, Restatement of the Law, Torts (2nd Ed. 1977), para. 564A [para. 61].

Bromme, Jeffrey S. - see Broome, Jeffrey S.

Broome, Jeffrey S., Group Defamation: Five Guiding Factors (1985), 64 Tex. L. Rev. 591, pp. 595 ff. [para. 53]; 618 [para. 70].

Brown, Raymond E., The Law of Defama­tion in Canada (2nd Ed. 1999), pp. 298, 299 [para. 17]; 324, 325 [para. 53]; 1155 [para. 135].

Côté, Pierre-André M., The Interpretation of Legislation in Canada (2nd Ed. 1991), p. 301 [para. 114].

Duncan and Neill on Defamation (2nd Ed. 1983), para. 6.13 [para. 56].

Eldredge, Lawrence H., The Law of De­famation (1978), p. 55 [para. 39].

Fleming, John G., The Law of Torts (9th Ed. 1998), pp. 580 [para. 20]; 591, 592 [para. 54].

Gatley on Libel and Slander (7th Ed. 1974), generally [para. 29].

Gatley on Libel and Slander (9th Ed. 1998), para. 7.12 [para. 65].

King, Joseph H., Jr., Reference to the Plaintiff Requirement in Defamatory Statements Directed at Groups (2000), 35 Wake Forest L. Rev. 343, pp. 359, 360 [para. 54].

Liability for Defamation of a Group (1934), 34 Col. L. Rev. 1322, pp. 1324, 1325, 1326 [para. 57].

Marcus, Ellyn Tracy, Group Defamation and Individual Actions: A New Look at an Old Rule (1983), 71 Cal. L. Rev. 1532, pp. 1533, 1534 [para. 54].

Mew, Graeme, The Law of Limitations (1991), pp. 7, 8 [para. 127].

Ontario, Law Reform Commission, Report on Limitation of Actions (1969), p. 9 [para. 127].

Snell's Principles of Equity (27th Ed. 1973), p. 33 [para. 142].

Tanenhaus, Joseph, Group Libel (1950), 35 Cornell L.Q. 261, p. 263 [para. 53].

Williams, J.S., Limitation of Actions in Canada (2nd Ed. 1980), p. 5 [para. 142].

Wilner, Irvine, The Civil Liability Aspects of Defamation Directed Against a Col­lectivity (1942), 90 U. Pa. L. Rev. 414, pp. 417 to 421 [para. 54].

Counsel:

W. Dale Dunlop, for the appellants;

Alan V. Parish, Q.C., and Brian Casey, for the respondents.

This appeal was heard at Halifax, Nova Scotia, on May 31, 2001, by Roscoe, Chip­man and Cromwell, JJ.A., of the Nova Scotia Court of Appeal. The following rea­sons for judgment of the court were delivered by Cromwell, J.A., on September 7, 2001.