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.
To continue reading
Request your trial-
Crookes et al. v. Newton, (2011) 421 N.R. 205 (SCC)
...82]. Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 (H.L.), refd to. [para. 39]. Butler et al. v. Southam Inc. et al. (2001), 197 N.S.R.(2d) 97; 616 A.P.R. 97; 2001 NSCA 121, refd to. [para. Malhab v. Diffusion Métromédia CMR inc. et al., [2011] 1 S.C.R. 214; 412 N.R. 1; 2011 SC......
-
Crookes et al. v. Newton, [2011] N.R. TBEd. OC.025
...82]. Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 (H.L.), refd to. [para. 39]. Butler et al. v. Southam Inc. et al. (2001), 197 N.S.R.(2d) 97; 616 A.P.R. 97; 2001 NSCA 121, refd to. [para. Malhab v. Diffusion Métromédia CMR inc. et al., [2011] 1 S.C.R. 214; 412 N.R. 1; 2011 SC......
-
St. Elizabeth Home Society v. Hamilton (City) et al., [2005] O.T.C. 1074 (SC)
...Ltd. et al. (1990), 41 O.A.C. 324; 73 D.L.R.(4th) 190 (Div. Ct.), refd to. [para. 173]. Butler et al. v. Southam Inc. et al. (2001), 197 N.S.R.(2d) 97; 616 A.P.R. 97 (C.A.), refd to. [para. Roncarelli v. Duplessis, [1959] S.C.R. 121; 16 D.L.R.(2d) 689, refd to. [para. 176]. Alberta v. Nilss......
-
Malhab v. Diffusion Métromédia CMR inc. et al., (2011) 412 N.R. 1 (SCC)
...Express Newspaper Ltd., [1944] A.C. 116 (H.L.), refd to. [para. 63]; consd. [para. 112]. Butler et al. v. Southam Inc. et al. (2001), 197 N.S.R.(2d) 97; 616 A.P.R. 97 ; 2001 NSCA 121 , refd to. [para. 63]; consd. [para. Bai et al. v. Sing Tao Daily Ltd. et al. (2003), 171 O.A.C. 385 ; ......
-
Crookes et al. v. Newton, (2011) 421 N.R. 205 (SCC)
...82]. Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 (H.L.), refd to. [para. 39]. Butler et al. v. Southam Inc. et al. (2001), 197 N.S.R.(2d) 97; 616 A.P.R. 97; 2001 NSCA 121, refd to. [para. Malhab v. Diffusion Métromédia CMR inc. et al., [2011] 1 S.C.R. 214; 412 N.R. 1; 2011 SC......
-
Crookes et al. v. Newton, [2011] N.R. TBEd. OC.025
...82]. Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 (H.L.), refd to. [para. 39]. Butler et al. v. Southam Inc. et al. (2001), 197 N.S.R.(2d) 97; 616 A.P.R. 97; 2001 NSCA 121, refd to. [para. Malhab v. Diffusion Métromédia CMR inc. et al., [2011] 1 S.C.R. 214; 412 N.R. 1; 2011 SC......
-
St. Elizabeth Home Society v. Hamilton (City) et al., [2005] O.T.C. 1074 (SC)
...Ltd. et al. (1990), 41 O.A.C. 324; 73 D.L.R.(4th) 190 (Div. Ct.), refd to. [para. 173]. Butler et al. v. Southam Inc. et al. (2001), 197 N.S.R.(2d) 97; 616 A.P.R. 97 (C.A.), refd to. [para. Roncarelli v. Duplessis, [1959] S.C.R. 121; 16 D.L.R.(2d) 689, refd to. [para. 176]. Alberta v. Nilss......
-
Malhab v. Diffusion Métromédia CMR inc. et al., (2011) 412 N.R. 1 (SCC)
...Express Newspaper Ltd., [1944] A.C. 116 (H.L.), refd to. [para. 63]; consd. [para. 112]. Butler et al. v. Southam Inc. et al. (2001), 197 N.S.R.(2d) 97; 616 A.P.R. 97 ; 2001 NSCA 121 , refd to. [para. 63]; consd. [para. Bai et al. v. Sing Tao Daily Ltd. et al. (2003), 171 O.A.C. 385 ; ......
-
Table of cases
...Case (1670), 1 Freeman 1, 89 E.R. 2 466 Butler v. Southam Inc. (2000), 191 N.S.R. (2d) 158 (S.C.(T.D.)), varied on other grounds (2001), 197 N.S.R. (2d) 97 (C.A.) 67 , 68 , 74, 234 , 235 , 241 , 250 , 254 , 887 Butler v. Southam Inc., [2002] N.S.J. No. 505 (N.S.S.C.), aff'd (2002), 210 N.S.......
-
Table of Cases
...No. 1993 ....................................15, 104, 106, 109, 111, 117, 122, 123, 230, 233, 234, 416 Butler v. Southam Inc. (2001), 197 N.S.R. (2d) 97 (C.A.) ........................................................... 273 Byrne v. Maas, [2007] O.J. No. 4457 (S.C.J.) ............................
-
Appeals
...judge at the end of the plaintiff's case for a directed verdict on the basis there is no case to answer. Butler v. Southam Inc. (2001), 197 N.S.R. (2d) 97, per Cromwell J.A. (Chipman and Moscoe JJ.A. concurring) at paras. 2425 (C.A.). The trial judge should not permit the jury to consider a......
-
Notice of Intended Action and Limitation Defences
...after publication. Butler v. Southam Inc. (2000), 191 N.S.R. (2d) 158 at paras. 3337 (S.C. (T.D.)), varied (on other grounds) (2001), 197 N.S.R. (2d) 97 at paras. 12933 (C .A.). Further, the notice provision may be of vital importance in relation to a series of articles. Timely notice of......