Sidorsky et al. v. CFCN Communications Ltd. et al., (1997) 206 A.R. 382 (CA)

• Judge: Bracco, Conrad and Hunt, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 09, 1997
• Citations: (1997), 206 A.R. 382 (CA);1997 ABCA 280;[1998] 2 WWR 89;206 AR 382;53 Alta LR (3d) 255;40 CCLT (2d) 94;[1997] CarswellAlta 772;[1997] AJ No 880 (QL);156 WAC 382;15 CPC (4th) 174

Sidorsky v. CFCN Com. Ltd. (1997), 206 A.R. 382 (CA);

         156 W.A.C. 382

MLB headnote and full text

Temp. Cite: [1997] A.R. TBEd. SE.030

Brian Sidorsky, Lansdowne Equity Ventures Ltd. and Red Carpet Mobile Home Village (1984) Ltd. (plaintiffs/appellants) v. CFCN Communications Limited, Shaun W. Purdue, Dale O'Hara, Wayne Bill, Murray Dale, Darrel Janz, Michelle Hogan, Rick Castiglione and Louise Moreau (defendants/respondents)

(Appeal No. 95-15803)

Indexed As: Sidorsky et al. v. CFCN Communications Ltd. et al.

Alberta Court of Appeal

Bracco, Conrad and Hunt, JJ.A.

September 9, 1997.

Summary:

Sidorsky owned several mobile home parks. The defendant television station broadcast reports that Sidorsky and his companies swindled persons by misleading customers into believing they were purchas­ing mobile homes when, in fact, subsequent documents they signed created only a lease with a virtually worthless option to purchase. Sidorsky and his companies brought a de­famation action for damages against the television station and eight employees. The defendants pleaded qualified privilege, justi­fication and fair comment.

The Alberta Court of Queen's Bench, in a judgment reported 158 A.R. 161, dismissed the action, but provisionally assessed dam­ages. The court held that the defendants were entitled to rely on the defences of justifica­tion and fair comment. The plaintiffs appealed.

The Alberta Court of Appeal dismissed the appeal as to liability, but allowed the appeal re costs by reducing certain disbursements and substituted party and party costs on triple column 6 for the solicitor-client costs awarded to the successful defendants.

Libel and Slander - Topic 2861

Defences - Justification or truth - General - Sidorsky owned several mobile home parks - Prospective purchasers of mobile homes were led to believe they were pur­chasing mobile homes under an advertised "rent-to-own" program - In fact, subse­quent documents created only a leasehold interest with a virtually worthless option to purchase - A television station investi­gated Sidorsky and his business practices after receiving complaints - The reports por­trayed Sidorsky as swindling, scam­ming, duping, ripping-off, etc., purchasers - Sidorsky brought a defamation action for damages - The trial judge dismissed the action - The television station and its employees were entitled to rely on the defences of justification (truth) and fair comment - The evidence clearly estab­lished a bait and switch scheme to mislead customers - There was no malice in the television station's pursuit and reporting of the story - The Alberta Court of Appeal affirmed the decision - See paragraphs 1 to 26.

Libel and Slander - Topic 3108

Defences - Fair comment - Elements of - Public interest - [See Libel and Slander - Topic 2861 ].

Practice - Topic 7063

Costs - Party and party costs - Counsel fees - Employment of special or additional counsel - The successful defendants in an uncomplicated defamation action were awarded a counsel fee for four counsel - The Alberta Court of Appeal held that four counsel was unjustified - The court per­mitted a counsel fee for two counsel only - See paragraph 42.

Practice - Topic 7066

Costs - Party and party costs - Counsel fees - Written argument - The successful defendants in an uncomplicated defamation action were awarded costs of $50,000 for written submissions - The Alberta Court of Appeal reduced the award to $10,000 on the ground that $50,000 was excessive - See paragraph 42.

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Con­duct of opposite party - The defendant television station successfully defended a defamation action by the plaintiff owner of a mobile home trailer park it accused of swindling mobile home purchasers - The trial judge held that the defences of justifi­cation and fair comment were available - The trial judge awarded the defendant solicitor-client costs, which totalled almost $1,000,000 - The Alberta Court of Appeal held that the trial judge erred - It was the plaintiff's conduct in the action itself, not the plaintiff's reprehensible conduct giving rise to the action, which was relevant - Further, although the plaintiff was unsuc­cessful, he appeared to have at least an arguable case - The trial judge's findings that the plaintiff requested false testimony from a witness and attempted to wrongful­ly interfere in the course of the trial were overstated - However, the plaintiff was guilty of inappropriate conduct respecting the trial and an increase in the scale of party and party costs was appropriate (to triple column 6) - See paragraphs 27 to 42.

Practice - Topic 7133.1

Costs - Party and party costs - Disburse­ments - Investigatory fees re witnesses - The successful defendants in an uncompli­cated defamation action were permitted a disbursement of $200,000 as an investigatory fee for keeping track of witnesses and their changes of address - The Alberta Court of Appeal held that $200,000 was not a "reasonable expense" under rule 600(1)(a) - The court reduced the disbursement to $10,000 - The court noted that "frequently, keeping a list of the current addresses of witnesses is simply part of the overhead of a law firm and should not be the subject of a separate disbursement. As such, it should be included as part of the party and party costs award." - See paragraph 44.

Practice - Topic 7454

Costs - Solicitor and client costs - Enti­tlement to - Improper, irresponsible or unconscionable conduct - [See Practice - Topic 7110.1 ].

Cases Noticed:

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1993), 138 A.R. 161 (Q.B.), refd to. [para. 28].

Mobil Oil Canada Ltd. v. Canadian Superior Oil Ltd. et al., [1980] 1 W.W.R. 453; 21 A.R. 111 (Q.B.), refd to. [para. 29].

Vanderclay Development Co. v. Inducton Engineering Ltd., [1969] 1 O.R. 41; 1 D.L.R.(3d) 337 (H.C.), refd to. [para. 29].

Reese et al. v. Alberta (Minister of For­estry, Lands and Wildlife) et al. (1992), 133 A.R. 127; 5 Alta. L.R.(3d) 40 (Q.B.), refd to. [para. 31].

Marthaller v. Lansdowne Equity Venture Ltd. (1997), 200 A.R. 226; 146 W.A.C. 226 (C.A.), refd to. [para. 36].

Canadian Deposit Insurance Corp. v. Canadian Commercial Bank (1987), 76 A.R. 271; 50 Alta. L.R.(2d) 1 (Q.B.), refd to. [para. 42].

Sprung Enviroponics Ltd. v. Calgary (City) and Imperial Oil Ltd. (1990), 103 A.R. 131 (C.A.), refd to. [para. 45].

Statutes Noticed:

Rules of Court (Alta.), rule 600(1)(a) [para. 44].

Counsel:

G.F. Dixon, Q.C., for the appellants;

R.B. Low, for the defendants.

This appeal was heard on May 20-21, 1997, before Bracco, Conrad and Hunt, JJ.A., of the Alberta Court of Appeal.

On September 9, 1997, the following memorandum of judgment was delivered by the Court.