St. Lewis v. Rancourt, 2015 ONCA 513

• Judge: Hoy, A.C.J.O., Sharpe and Benotto, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 26, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 513;(2015), 337 O.A.C. 15 (CA)

St. Lewis v. Rancourt (2015), 337 O.A.C. 15 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JL.008

Joanne St. Lewis (plaintiff/respondent) v. Denis Rancourt (defendant/appellant)

(C59074; 2015 ONCA 513)

Indexed As: St. Lewis v. Rancourt

Ontario Court of Appeal

Hoy, A.C.J.O., Sharpe and Benotto, JJ.A.

July 8, 2015.

Summary:

The plaintiff sued for defamation. At issue were two of the defendant's blog posts. The jury found that statements in the impugned blog posts were defamatory and that there was actual malice on the defendant's part. The jury awarded general and aggravated damages. The trial judge ordered substantial indemnity costs and granted a permanent injunction. The defendant appealed on the following grounds: (1) that the trial judge erred by not instructing the jury with respect to "fair comment"; by not considering that the claim was statute barred; by not instructing the jury to watch a video which was embedded in his first impugned blog post; and by granting the injunction and costs; (2) that the finding that he defamed the plaintiff violated his constitutional right to freedom of expression; and (3) there was a reasonable apprehension of bias on the part of the trial judge.

The Ontario Court of Appeal dismissed the appeal on all grounds.

Civil Rights - Topic 1843.1

Freedom of speech or expression - Limitations on - Defamation - [See Libel and Slander - Topic 3 ].

Libel and Slander - Topic 3

General - Defamation v. Charter - The defendant appealed from a jury's verdict in an action involving defamation - He had left the trial on the second day, and only returned to hear the jury verdict - In the result, he did not call evidence in his defence - The Ontario Court of Appeal rejected the appellant's submission that his constitutional right to freedom of expression afforded him the right to defame - "First, the appellant has led no evidence or argument that the respondent's legal proceeding is a government action that would engage the Charter. Second, while the Supreme Court has modified the common law of defamation ... the appellant has failed to bring himself within any Charter-based defence. ... Rather than attempting to prove that his right to freedom of expression should, at law, overcome the respondent's right to protect her reputation, the appellant refused to participate in the trial." - See paragraph 17.

Libel and Slander - Topic 3106

Defences - Fair comment - Elements of fair comment - General - The defendant appealed from a jury's verdict in an action involving defamation - He argued that the trial judge erred by not instructing the jury with respect to "fair comment" - The Ontario Court of Appeal held that the defence of fair comment was not available to the defendant - "The defence of fair comment requires that the defendant establish that the impugned statement was (1) a comment and not a statement of fact; (2) based upon true facts; (3) on a matter of public interest; (4) able to satisfy an objective test of fairness; and (5) made without malice. .. . [The defendant] called no evidence, and without evidence, he could not establish the five criteria just set out. ... Moreover, and in any event, the jury's finding of malice defeated the defence." - See paragraph 7.

Libel and Slander - Topic 5006

Injunctions - Restraining further defamation - The jury found that numerous statements in the defendant's impugned blog posts were defamatory - The trial judge ordered a permanent injunction, restraining the defendant from publishing any defamatory statement about the plaintiff - The Ontario Court of Appeal refused to interfere with the order - "The trial judge correctly noted the situations in which permanent injunctions have been consistently ordered after defamation proceedings, as identified in Astley v. Verdun, 2011 ONSC 3651. ... The trial judge concluded that, on either branch of Astley, the [plaintiff] had demonstrated the need for a permanent injunction. With respect to the first branch, the trial judge found that the [defendant] had demonstrated a total disregard for the judicial process and that his conduct, before and during the trial, made it more probable than not that he will continue to defame the [plaintiff]. With respect to the second branch, the trial judge found that there was no reasonable prospect that the [defendant] would be able to pay the damage and cost awards. The injunction ordered by the trial judge - preventing any defamatory statement - was broad. ... A broad ongoing injunction is an extraordinary remedy which should be used sparingly. However, where there has been a campaign of defamation and a likelihood that it will continue, there is authority for such an order." - See paragraphs 11 to 16.

Libel and Slander - Topic 6061

Practice - Notice - General - The jury found that numerous statements in the defendant's blog posts were defamatory - The first notice of libel was served more than three months after the first impugned blog post was published - On appeal, the defendant argued that the trial judge erred by not considering that the claim was statute barred; i.e., that pursuant to s. 5(1) of the Libel and Slander Act, the plaintiff was required to serve a notice of libel within six weeks of acquiring knowledge of the impugned blog posts - The Ontario Court of Appeal dismissed that ground of appeal - The limitation period applied "only to newspapers printed and published in Ontario and to broadcasts from a station in Ontario" (Act, s. 7) - The burden of proof was with the defendant to establish that the blog posts fell within that definition under the Act - He called no evidence to establish that they did - See paragraph 8.

Limitation of Actions - Topic 3244

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

Cases Noticed:

Simpson v. Mair et al. (2008), 376 N.R. 80; 256 B.C.A.C. 1; 431 W.A.C. 1; 2008 SCC 40, refd to. [para. 7].

Astley v. Verdun, [2011] O.T.C. Uned. 3651; 2011 ONSC 3651, refd to. [para. 13].

Barrick Gold Corp. v. Lopehandia et al. (2004), 187 O.A.C. 238; 71 O.R.(3d) 416 (C.A.), refd to. [para. 16].

Ottawa-Carleton District School Board et al. v. Scharf et al., [2007] O.T.C. Uned. G96 (Sup. Ct.), affd. [2008] O.A.C. Uned. 90; 2008 ONCA 154, leave to appeal refused (2008), 392 N.R. 386, refd to. [para. 16].

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. 17].

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. 17].

Commission scolaire francophone du Yukon No. 23 v. Yukon (Procureure générale) (2015), 471 N.R. 206; 2015 SCC 25, refd to. [para. 18].

Statutes Noticed:

Libel and Slander Act, R.S.O. 1990, c. L-12, sect. 5(1), sect. 7 [para. 8].

Counsel:

Denis Rancourt, acting in person;

Richard G. Dearden and Anastasia Semenova, for the respondent.

This appeal was heard on June 26, 2015, before Hoy, A.C.J.O., Sharpe and Benotto, JJ.A., of the Ontario Court of Appeal. The Court delivered the following endorsement on July 8, 2015.