COURT OF APPEAL FOR ONTARIO

CITATION: Dagenais v. Pellerin, 2022 ONCA 76

DATE: 20220128

DOCKET: C69738

Feldman, MacPherson and Thorburn
    JJ.A.

BETWEEN

Annette Dagenais and Richard
    Dagenais

Plaintiffs (Respondents)

and

Guy Pellerin and
Slavko
    Concrete Finishing Inc.

Defendants (
Appellant
)

AND BETWEEN

Janet McGlone and
Janet McGlone as Litigation Administrator of the Estate for Allan Timms

Plaintiffs (Respondents)

and

Guy Pellerin,
Slavko Concrete
    Finishing Inc.
and Annette Dagenais and John Doe

Defendants (
Appellant
)

Pat C. Peloso and Jaime Wilson, for the
    appellant

William R. Hunter
    and Patrick Simon, for the respondents Annette Dagenais and Richard Dagenais

Mikolaj T.
    Grodzki and Alexander N. Elkin, for the respondents Janet McGlone and Janet
    McGlone as Litigation Administrator of the Estate for Allan Timms

Heard: January 20, 2022 by
    video conference

On appeal from the orders of Justice Paul
    B. Kane of the Superior Court of Justice, dated June 25, 2021, with reasons
    reported at 2021 ONSC 3415.

REASONS FOR DECISION

[1]

The respondents, Annette Dagenais and Janet
    McGlone, were the driver and passenger in a car that was in an accident with a
    car driven by Guy Pellerin, an employee of the appellant, Slavko Concrete Finishing
    Inc. (Slavko), who was on his way to a job site. Mr. Pellerin admitted
    liability for the accident. The respondents claims for damages, which will be
    determined by a jury, exceed the amount of Mr. Pellerins liability insurance
    coverage. They have therefore also claimed against the appellant on the basis
    of the doctrines of vicarious liability and
respondeat superior
. On
    summary judgment, the appellant was found to be responsible for the
    respondents damages on both bases. The appellant challenges both findings on
    this appeal.

A.

Factual background

[2]

The accident occurred on January 31, 2013. Mr.
    Pellerin was employed by Slavko as a cement finisher, and had been called by
    his supervisor on January 30, and told to go to a job site in Petawawa for noon
    the next day. The job site was about two hours away from Mr. Pellerins home.
    Five other employees were to attend for 9 a.m., as they were pouring the
    concrete slab. They went together in transportation provided by the company.
    Mr. Pellerin was to drive in his own car to the job site and back the same day.
    He had his tools for the job with him in the car.

[3]

A collective agreement governed the terms and
    conditions of Mr. Pellerins employment. It included provisions regarding
    travel to job sites, including: payment of the hourly rate for up to four hours
    per day for travelling outside the National Capital Commission Greenbelt;
    transportation to be arranged by the employer for travel outside the National
    Capital Commission Greenbelt; and payment of a mileage allowance of $0.48 per
    kilometer for travel to or between job sites in a personal vehicle.

[4]

Mr. Pellerin left home, got gas, did a personal
    errand, and then headed for Petawawa. At Renfrew, he decided to stop at Tim
    Hortons for a coffee and to stretch his legs. When making the left turn off
    the highway, he hit the respondents vehicle coming through the intersection.

[5]

Mr. Pellerin admitted responsibility for the
    accident and the damages suffered by the respondents to the limit of his
    liability insurance coverage, $2,000,000. As the claims of the respondents
    exceed that amount, they also pursued the appellant, alleging that it is
    responsible for the negligence of its employee during the course of his
    employment, on the basis of the doctrines of vicarious liability and
respondeat
    superior
.

[6]

While the quantification of the damages was left
    to be determined in a jury trial, all parties agreed that it was appropriate to
    have the issue of the liability of the appellant determined on summary
    judgment.

B.

Findings by the Motion Judge

[7]

In detailed and thorough reasons, the motion
    judge considered the legal and factual issues necessary to determine whether
    the appellant is liable for the damages suffered by the respondents.

[8]

He first found that while travelling to the job site
    in Petawawa, Mr. Pellerin was acting within the course of his employment. He
    was directed by the employer to travel to Petawawa and be there by noon; he was
    transporting his tools; and the collective agreement required the employer to
    arrange for transportation to distant job sites, such as Petawawa, and to pay a
    travel allowance and up to four hours salary. The motion judge concluded that
    the travel to the job site was part of the employees work.

[9]

The motion judge next considered whether the
    fact that Mr. Pellerin was using his own vehicle meant that he was acting
    outside his employment. The motion judge concluded that Mr. Pellerins use of
    his own vehicle was directed, or at least authorized, by the employer, based on
    the evidence.

[10]

The motion judge further found that Mr. Pellerins
    detour to get coffee and to stretch his legs was authorized by the employer as
    part of the travel requirement to get to the job site, a two-hour drive away. The
    motion judge relied on the record of evidence of the policy of the employer as
    well as case law from the Supreme Court of Canada,
Battistoni v. Thomas
,
    [1932] S.C.R. 144; the House of Lords,
Smith v. Stages

and another
,
    [1989] 1 All E.R. 833 (H.L.); and other courts that have held that a brief
    deviation from the direct route or brief detour does not take the employee out
    of the course of employment.

[11]

The motion judge summarized his factual and
    legal findings at paras. 148-150 as follows:

[
148
]  The Court has
    concluded that Mr. Pellerin was acting in and continued in the course of his
    employment:

a.       as he drove
    towards Petawawa;

b.       as he did
    so while driving his vehicle;

c.       as he
    attempted to turn off Highway 17 to stop to stretch and buy a coffee before continuing
    on to that destination; and

d.       that each
    of those actions were permitted and authorized by his employer based on the
    evidence and as supported by reasonable inferences drawn from that evidence.

[
149
]  Those were
    authorized acts therefore pursuant to the first branch of the Salmond test and
    not unauthorized acts governed under the second branch of the Salmond test.

[
150
]  Slavko accordingly
    was legally responsible for the negligence of such actions by Mr. Pellerin
    under the doctrine of vicarious liability or in the alternative, pursuant to
    the doctrine of
respondeat superior
.

[12]

These findings were made in the context of the
    test for vicarious liability known as the Salmond test, which was affirmed by
    the Supreme Court of Canada in
Bazley v. Curry
, [1999] 2 S.C.R. 534,
    at para. 10:

[T]he Salmond test  posits that employers are
    vicariously liable for (1) employee acts authorized by the employer; or (2)
    unauthorized acts so connected with authorized acts that they may be regarded
    as modes (albeit improper modes) of doing an authorized act.

[13]

The motion judge found that Mr. Pellerin was specifically
    authorized to drive to the job site in Petawawa in his car with his tools, that
    he was in the course of his employment while driving to the remote job site, and
    that he was authorized to take a short detour to get a coffee and stretch his
    legs as part of the long drive. The employer was therefore vicariously liable
    under the first branch of the Salmond test.

[14]

Slavko argued on the motion, and on the appeal,
    that the test to be applied was the second branch of the Salmond test because the
    drive and the accident were unauthorized. As a result, the motion judge was
    required to apply the two-part analysis from
Bazley
for determining
    vicarious liability for unauthorized acts.

[15]

In
Bazley
, a childrens foundation unknowingly
    hired a paedophile, Mr. Curry, to look after children in its care. A child
    who was abused by Mr. Curry sued the foundation on the basis of vicarious
    liability. In that case, the court was concerned with the second branch of the
    Salmond test. The issue was whether the unauthorized abuse of the child
    constituted a mode of performing the authorized act of looking after the child.
    The Supreme Court held that where there is no precedent that determines the
    issue, the court should do so by considering and applying the policy underlying
    vicarious liability:
Bazley
, at para. 15. That policy has two
    fundamental concerns: (1) provision of a just and practical remedy for the harm;
    and (2) deterrence of future harm:
Bazley
, at para. 29.

[16]

In response to the appellants submission, the
    motion judge considered, in the alternative, that if Mr. Pellerins acts had
    been unauthorized, whether vicarious liability should be imposed based on the
    two policy considerations from
Bazley
. He concluded that it should. First,
    the respondents are entitled to fair compensation for the accident, and may not
    get it if the only source is Mr. Pellerins insurance limit of $2,000,000.
    Second, imposing liability on the employer in this case could cause the
    employer, in the future, to provide safe transportation to distant work sites
    for all employees, in accordance with the requirements of the collective
    agreement.

C.

Issues on the Appeal

[17]

The appellants position is that the motion
    judge erred in fact and law by finding that the first branch of the Salmond
    test applies. It argues that the drive and the accident were unauthorized and
    the motion judge erred by finding that they were authorized. The appellant
    argues further that the motion judges alternative analysis and application of
    the two-part
Bazley
test was in error, and that as a matter of policy,
    the respondents are already being compensated by Mr. Pellerins insurance, and there
    is no applicable deterrence issue in this case.

[18]

We reject these submissions. The motion judges
    reasons were thorough and comprehensive. He fully applied the Salmond test and
    found the facts that supported the legal conclusion that Mr. Pellerin, while
    employed as a cement finisher, was specifically authorized to drive in his own
    car to the job site at Petawawa and was entitled to a mileage allowance and up
    to four hours of wages for the driving time. Furthermore, he found, again based
    on the evidence and legal precedent, that the authorization included the
    employee taking a coffee break and stretching his legs during the drive. The
    small detour taken by Mr. Pellerin was not a frolic of his own, as in
Battistoni
,
    where the employee went off to socialize for a lengthy period during the drive.
    There is no basis to interfere with his findings or his conclusion.

[19]

The appellant also argues that the motion judge
    should not have relied on the Saskatchewan Court of Appeal decision in
Sickel
    Estate v. Gordy
, 2008 SKCA 100, 311 Sask. R. 235, which, it submits, was
    wrongly decided and incorrectly applies the Salmond test contrary to the
    direction of the Supreme Court in
Bazley
. In
Sickel
, the
    court held that the negligent driver was acting in the course of her employment,
    moving the employers equipment from site to site, and stated at para. 39 that
    it is not the
negligence
that must be seen as authorized by the
    employer, but only the activity, which, incidentally, was negligently
    performed (emphasis in original).

[20]

We reject the appellants legal submission. We
    see no error in the motion judges reliance on
Sickel
as an example of
    employee conduct authorized by the employer, and therefore falling within the
    first branch of the Salmond test for imposing vicarious liability for the
    accident on the employer.

[21]

Because we agree with the motion judges conclusion
    that Mr. Pellerin was authorized to drive to the job site in Petawawa as part
    of his employment, and therefore the appellant is vicariously liable under the
    first part of the Salmond test, it is unnecessary to address the second part of
    the Salmond test, and the two policy criteria from
Bazley
. However, we
    add that we see no error in the alternative analysis conducted by the motion
    judge on this issue. We also affirm the motion judges finding that the
    appellant is also liable for the negligence of Mr. Pellerin on the basis of the
    application of the doctrine of
respondeat superior
.

[22]

The appeal is therefore dismissed with costs to each
    of the two respondents fixed in the amount of $18,000 to each, inclusive of
    disbursements and HST.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Flight (Re), 2022 ONCA 77

DATE: 20220126

DOCKET: M53087 (C69594)

Simmons
    J.A. (Motions Judge)

In the
    Matter of the Bankruptcy of Brian Wayne Flight, of the City of London, in the
    Province of Ontario

Nicholas Kluge and C. Haddon Murray
[1]
, for the moving parties/appellants,
    Adamson & Associates Inc. and John Adamson

Tara Vasdani, for the responding party/respondent,
    Brian Wayne Flight

Jacob Pollice, for the intervener
    Superintendent of Bankruptcy
[2]

Heard: January 20, 2022 by video conference

ENDORSEMENT

A.

Introduction

[1]

The appellants moved in writing for an order
    permitting them to amend their notice of appeal dated June 24, 2021, to add a
    request, in the alternative, for leave to appeal under s. 193(e) of the
Bankruptcy and Insolvency Act
,
    R.S.C. 1985, c. B‑3 (the "BIA").

[2]

The order under appeal declares that Mr. Flight
    and his spouse do not require leave under s. 215 of the BIA to commence and
    continue their action against Mr. Adamson for declaratory relief and damages in
    connection with his administration as trustee of Mr. Flight's estate in
    bankruptcy. As originally framed, the appellants relied in their notice of
    appeal on ss. 193(b) and (c) of the BIA, which do not impose a leave
    requirement.

[3]

I required counsel to attend to speak to this
    motion because of serious allegations made by the responding party and concerns
    I had about the admissibility of some of the material filed on the motion.

[4]

Following submissions from counsel, I struck the
    second sentence of para. 19 of the moving parties' factum and the moving
    parties' letter to the court dated January 11, 2022.

[5]

In addition, I struck the following portions of
    the responding party's affidavit filed on the motion: paras. 2, 8, the first
    sentence of paras. 9 and 11, para. 13, the heading over para. 14, paras. 15-20,
    the heading over para. 21, paras. 21 and 22, para. 31 (subject to treating
    paras. 31 a. and c. as being included in the responding party's factum), paras.
    33-35, paras. 37-39, and paras. 41-44.

[6]

After I struck the foregoing material, the
    parties agreed that the motion should proceed in writing and also confirmed
    that, if the motion is granted, the leave issue should be dealt with by the
    panel hearing the appeal without the necessity of any additional material being
    filed.

[7]

For the reasons that follow, the motion to amend
    is granted. I will also explain below my reasons for striking the foregoing
    material and declining the responding party's request to call oral evidence to
    replace certain paragraphs of the responding party's affidavit filed on the
    motion if they were struck.

B.

Discussion

(1)

The Materials

(a)

The Moving Parties material

[8]

My concern with respect to the second sentence
    of para. 19 of the moving parties' factum was that it lacked an evidentiary
    foundation for asserting that the first date the responding party took the
    position that the moving parties required leave to appeal under s. 193(3)(e) of
    the BIA was upon filing the respondent's factum.

[9]

As for the letter dated January 11, 2022, I
    expressed concern that letters from counsel are not an appropriate way to make
    submissions on a motion. Although the moving parties submitted that the January
    11, 2022 letter (with enclosures) was sent in an effort to fulfill counsel's
    duty to ensure submissions are accurate (in this case, the second sentence of
    para. 19 of the factum), ultimately they did not oppose striking the specified
    material.

(b)

The Responding Partys material

[10]

The responding party's affidavit was sworn by a law
    student. My concerns with respect to the listed paragraphs were, variously,
    that they constituted inadmissible opinion; were inaccurate on their face; in
    violation of rule 39.01(4) of the
Rules of Civil
    Procedure
; argumentative; or a combination of
    some or all of the foregoing.

[11]

Ultimately, the responding party opposed
    striking only paragraphs 15 to 20 and 31 of the student's affidavit. My concern
    with respect to those paragraphs was primarily that they violated rule 39.01(4).
    Counsel submitted that there was no real violation, in effect, as the source of
    the information should be obvious. Moreover, and in any event, case law and
    various rules support admitting non-contentious statements premised on
    information and belief even if there is a minor violation of the rule. Counsel
    also asked to call oral evidence from the responding party, who was present via
    videoconference, to cure any defects.

[12]

I did not accept these submissions or permit
    oral evidence.

[13]

The responding party alleges that the moving
    parties' motion "is brought in patent bad faith" and that the moving
    parties, and by implication their counsel, are misleading the court. Where such
    serious allegations are made, the evidence to support them must comply strictly
    with both the laws of evidence and the rules. Evidence proffered on information
    and belief to support such allegations may be subject to questions of weight in
    any event. Such questions could include when and by what method the information
    was communicated, whether notes were taken and other similar matters. However,
    the failure to comply with even the basic requirements of rule 39.01(4) of
    specifying from whom the information was communicated and that the deponent
    believes the information is true requires that the specified paragraphs be
    struck.

[14]

As for the request to call oral evidence,
    paragraphs 15 to 20 of the affidavit relate to communications between counsel.
    Evidence from the responding party could not reasonably be expected to cure a
    defect in rule 39.01(4) except by double hearsay. In any event, permitting oral
    evidence on a procedural motion in this court would be out of the ordinary and
    could only be justified in exceptional circumstances. Curing a failure to
    comply with basic requirements of the rules does not qualify as an exceptional
    circumstance.

(2)

The Merits of the Motion

(a)

The Test

[15]

At paras. 13-15,
Yar.
    v. Yar
(2012), 24 R.F.L. (7th) 101, specifies
    five factors relevant to the determination of whether to grant leave to amend a
    notice of appeal (in that case, a notice of cross-appeal) after an appeal had
    been perfected:

i.

whether the appellant formed an intention to
    appeal within the relevant period;

ii.

the length of the delay and any explanation for
    the delay;

iii.

any prejudice to the respondent;

iv.

the merits of the appeal;

v.

whether the justice of the case requires an
    extension.

(b)

Application of the Test to this Case

[16]

As the moving parties' appeal under ss. 193(b)
    and (c) of the BIA has been perfected, there appears to be no question that
    they formed an intention to appeal within the relevant period.

[17]

That said, the moving parties' material is
    devoid of any reasonable explanation concerning when they recognized the
    possible requirement to seek leave to appeal under s.193(e) of the BIA and why
    they failed to do so before now.

[18]

I reject any suggestion that the explanation for
    the moving parties failure could somehow be that the responding party failed
    to put the moving parties on notice of the possible requirement to seek leave.
    Section 193(e) states on its face that leave is a requirement under that
    subsection. Further, that the requirements of the various subsections of s. 193
    can be complex is well known. The moving parties have not explained why they
    failed to recognize the possible necessity of seeking leave under s. 193(e)
    when they originally delivered their notice of appeal.

[19]

However, the absence of an explanation and even
    the attempted explanation that the responding party failed to adequately put
    the moving parties on notice that leave may be required does not lead to
    necessary inferences of bad faith or that the moving parties are attempting to
    mislead the court. There are many possible reasons, short of bad faith, why the
    moving parties may have failed to advert to the possibility of requiring leave
    even in the face of the responding party's suggestion that leave was required.
    Nonetheless, the bottom line remains, on the record before me, there is no indication
    that the moving parties formed an intention to seek leave within the relevant
    period and no reasonable explanation for their delay in failing to request
    permission to amend before now.

[20]

That said, I see no prejudice to the responding
    party if permission to amend is granted. The parties agreed that if permission
    is granted to amend to seek leave to appeal under s. 193(3) in the alternative,
    the issue of leave to appeal will simply be dealt with by the panel hearing the
    already perfected appeal without the necessity for further material.

[21]

If the panel hearing the appeal determines an
    appeal as of right is not available under ss. 193(b) or (c) of the BIA, the
    factors set out in
Business Development Bank of
    Canada v. Pine Tree Resorts Inc
., 2013 ONCA 282,
    115 O.R. (3d) 617 may govern the leave issue:

i.

whether the appeal raises an issue of general
    importance to the practice in bankruptcy/insolvency matters or to the
    administration of justice as a whole and whether the issue is one that this
    court should consider and address;

ii.

whether the appeal is
prima facie
meritorious; and

iii.

whether the appeal will unduly hinder the
    progress of the bankruptcy/insolvency proceedings.

[22]

Concerning the last factor, the bankruptcy has
    been resolved by a consumer proposal. The appeal will not hinder its progress.
    Further, because there is a pending appeal in any event, granting permission to
    amend will not hinder the progress of the responding party's action.

[23]

As for the first two factors, the fact that the Superintendent
    has been permitted to intervene and the evidence the Superintendent filed on
    the motion to intervene support the likelihood that the appeal raises an issue
    of general importance and also the prospect that the panel may choose to
    address it whatever the level of merit. However, the panel hearing the appeal
    will also have discretion not to grant leave.

[24]

In the circumstances, the merits of the leave
    motion support granting permission to amend.

[25]

Considering the case overall, permission to
    amend should be granted. No doubt, the moving parties should have addressed
    their alternative request earlier. They should also have provided an
    explanation for their failure to do so and for their delay in applying for
    leave to amend to this court. However, given the lack of prejudice to the
    responding party and the merits of the alternative leave request, I am
    satisfied that the justice of the case warrants granting permission to amend.

C.

Disposition

[26]

Based on the foregoing reasons, permission to
    amend as requested is granted, provided that the amendment should be completed
    within seven days of the release of these reasons. Given that this disposition
    amounts to an indulgence, the responding party may make submissions as to costs
    within seven days of the receipt of these reasons and the moving parties may
    respond within seven days thereafter.

Janet
    Simmons J.A.

[1]

Mr. Murray prepared the in-writing submissions on behalf of
    the moving parties/appellants. Due to a conflict, Mr. Kluge appeared for the
    purposes of oral submissions.

[2]

Mr. Pollice appeared but made no written or oral submissions
    on behalf of the intervener.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Edwards, 2022 ONCA 78

DATE: 20220128

DOCKET: C65250

Paciocco, Nordheimer and Sossin
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kawayne Edwards

Appellant

Eric Neubauer, for the appellant

Anna Martin, for the respondent

Heard: January 13, 2022 by video conference

On appeal from the conviction entered by
    Justice David Salmers of the Superior Court of Justice, sitting with a jury, on
    August 27, 2017.

Sossin J.A.:

[1]

After a seven-day trial, a jury found the
    appellant guilty of drug trafficking, possession of the proceeds of crime, and
    possession of drugs for the purpose of trafficking.

[2]

The appellant appeals his conviction on the
    basis that the trial judge gave deficient jury instructions.

[3]

For the reasons that follow, I would dismiss the
    appeal. While the trial judge failed to appropriately caution the jury, the
    evidence against the accused was overwhelming. As a result, the curative
    proviso applies.

FACTS

[4]

On September 2, 2015, an undercover officer contacted
    a person known as Tony to arrange to buy crack cocaine. The officer was
    directed to an apartment window on Bloor Street in Oshawa, where he received
    2.6 grams of cocaine for $240. None of the surveillance officers saw the actual
    purchase. However, a video recording of the initial meeting between the
    suspected drug dealer and the undercover officer allowed police to identify him
    as the appellant that same day.

[5]

Six days later, the undercover officer arranged
    to buy more crack cocaine. He was let into the same apartment building and bought
    drugs from the same suspected drug dealer.

[6]

Later that day, the appellant, along with two
    other individuals, exited the apartment building and got into a taxi. Police
    followed. One of the other individuals exited the taxi before it reached its
    final destination, but police continued to trail the taxi, eventually surrounding
    it, and arresting the appellant. Police seized a phone found near the appellant
    with the same phone number used by the undercover officer to coordinate the two
    drug transactions. The arresting officers also found a pair of Ray-Ban
    sunglasses.

[7]

A search of the appellants person revealed the
    money used to purchase the drugs, and a subsequent search of the apartment
    where the drugs were bought discovered 56.5 grams of cocaine and an empty Ray-Ban
    sunglasses case in a backpack. Certain documents were found at the apartment
    with the name of the individual later identified as the person who exited the
    taxi before it reached its final destination.

TRIAL

[8]

In addition to the undercover officers
    eyewitness testimony, the prosecution presented a range of circumstantial
    evidence, including items recovered from the taxi (such as the appellants
    phone, which had the undercover officers number saved in its contacts), and
    items recovered from the house (such as a backpack, and drug paraphernalia
    which the undercover officer recognized from the drug purchase).

[9]

The prosecution also relied on utterances made
    by the appellant to the undercover officer at the meeting caught on video,
    including that the phone number the officer had called was his, and that he had
    told the undercover officer he was good for a B.

[10]

The appellant elected not to testify. He
    conceded he was the greeter who met with the undercover officer to set up the
    drug purchase in the encounter captured on video, but alleged that he was not
    the individual who subsequently participated in the drug purchase upon which
    the  prosecution based its allegation.

[11]

The defence called the appellants mother, who
    testified that her son lived with her in Scarborough during the period of his
    arrest, and that she did not know what business he had in Oshawa that night. She
    did not recognize the backpack containing the crack cocaine nor remember her
    son wearing Ray-Ban sunglasses. Moreover, she did not recall contacting the
    appellant with the number used to arrange the drug transactions.

[12]

The trial judge charged the jury according to
Watts
    Manual for Criminal Jury Instructions
. Beyond the role of the jury and the
    governing burdens and standards, the trial judge outlined the key issues as the
    drug traffickers identity and whether the appellant trafficked crack cocaine
    to the undercover officer on the dates in question. He also summarized the
    defences theory that the Crown had failed to link the apartment and,
    accordingly, the drug trafficking to the appellant. Defence counsel argued that
    the evidence actually incriminated the individual seen exiting the taxi before the
    appellants arrest.

[13]

Neither the defence nor the Crown sought any
    significant amendment to the trial judges proposed instructions. In
    particular, neither party sought an instruction regarding eyewitness
    identification, voice recognition evidence, or circumstantial evidence in
    accordance with
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000.

ANALYSIS

[14]

A trial judge is entitled to significant
    deference in any review of a charge to the jury. A trial judges instructions
    are considered as a whole, and are not held to a standard of perfection. The
    accused is entitled to a properly instructed jury, not a perfectly instructed
    jury:
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R., at para. 31.

[15]

The appellant contends that the trial judge made
    three errors in his charge to the jury:

1.

The trial judge failed to provide a caution on
    eyewitness identification evidence;

2.

The trial judge failed to provide a caution on
    voice identification evidence; and

3.

The trial judge failed to provide a
Villaroman
caution on the circumstantial evidence in the case.

[16]

I will address each issue in turn. As I conclude
    the trial judge did make errors in the charge to the jury, I also consider the
    application of the curative proviso under s. 686(1)(b)(iii) of the
Criminal
    Code
, R.S.C. 1985, c. C-46.

(1)

The trial judge failed to caution the jury on
    eyewitness evidence

[17]

The identification of the appellant as the
    suspected drug dealer turned, in large part, on the eyewitness evidence of the
    undercover officer. He identified the appellant as the person who sold him drugs
    based both on his recollection and on the basis of video surveillance evidence of
    his meeting with the greeter, which the appellant conceded was him. The
    undercover officer also made an in-dock identification of the appellant during
    the trial.

[18]

In his charge, the trial judge stated that the
    jury had to be convinced beyond a reasonable doubt that the appellant was the
    person who sold the drugs to the undercover officer, but did not provide any
    specific caution with respect to the frailties of eyewitness identification
    evidence.

[19]

The jury would have been alerted to the
    importance of the eyewitness identification evidence as concerns over the
    reliability of this evidence featured prominently in the closing address of
    defence counsel, who identified a number of features he claimed cast doubt on
    the accuracy of the identification evidence.

[20]

Not only was the testimony of the undercover
    officer identifying the appellant the only direct identification presented by
    the Crown, it was clearly of significance to the jury. Indeed, after
    deliberations began, the jury asked for the portion of the undercover officers
    testimony and cross-examination regarding his identification of and interaction
    with the appellant during the first drug purchase to be replayed. This was the
    only question posed by the jury during deliberations.

[21]

Given the significance of this eyewitness identification
    evidence to the question of the appellants guilt and the attention paid by the
    appellant to difficulties he perceived in the manner in which the
    identification was made, in my view, more attention to this evidence was
    required in the trial judges charge.

[22]

Concerns over the reliability of eyewitness
    identification evidence have been recognized in a number of cases. As Epstein
    J.A. stated in
R. v. Jack
, 2013 ONCA 80, 302 O.A.C. 137:

[
13
] The dangers inherent in eyewitness identification evidence and the
    risk of a miscarriage of justice through wrongful conviction have been the
    subject of much comment. Such evidence, being notoriously unreliable, calls for
    considerable caution by a trier of fact.

[
14
] It is essential to
    recognize that it is generally the reliability, not the credibility, of the
    eyewitness' identification that must be established. The danger is an honest
    but inaccurate identification.

[
15
] The jury must be
    instructed to take into account the frailties of eyewitness identification as
    they consider the evidence relating to the following areas of inquiry. Was the
    suspect known to the witness? What were the circumstances of the contact during
    the commission of the crime including whether the opportunity to see the
    suspect was lengthy or fleeting? Was the sighting by the witness in
    circumstances of stress? [Citations omitted.]

[23]

I am mindful that a caution on eyewitness
    evidence would require the trial judge to examine the evidence in his charge in
    greater detail and that this additional focus may not have benefitted the
    defence:
R. v. Oswald
, 2016 ONCA 147, at para. 5. For example, in this
    case, had the trial judge provided a caution on the eyewitness identification
    evidence, he may have drawn attention to the fact that the undercover officers
    opportunity to observe the person he testified was the appellant was not
    unexpected or fleeting, and that the officers identification of the appellant
    was bolstered by surrounding circumstantial evidence.

[24]

Even though much of what the trial judge would
    have said would have favoured the Crown case, this is not a case where it is appropriate
    to infer that defence counsel refrained from objecting to the absence of a
    charge relating to identification evidence because of concerns that a charge on
    the dangers of identification evidence would not serve the appellants
    interest. As indicated, defence counsel sought to defend this case based on
    percevied deficiencies in the identification. In those circumstances, it was
    important for the trial judge to give a direction relating to the dangers of
    eyewitness identification so that the jury could make its decision with the
    benefit of judicial experience about the challenges that eyewitness identification
    evidence can present.

[25]

While an eyewitness identification caution may
    not have benefitted the defence, it was an error by the trial judge not to
    provide such a caution in the circumstances of this case.

(2)

The trial judge failed to caution the jury on
    the voice identification evidence

[26]

Similar concerns apply to the trial judges
    failure to caution the jury on the voice identification evidence.

[27]

The undercover officers evidence linking the
    appellant as the person who provided instructions to him over the phone with
    the person who sold him the drugs relied on voice recognition. The undercover
    officer had not met the appellant prior to this interaction and testified that
    the voice he recognized had no distinguishing accent or other identifying
    features.

[28]

It is particularly important to caution juries
    about the frailties of voice identification evidence where there is no
    pre-existing relationship between the person speaking and the person purporting
    to identify their voice: see
R. v. Brown
, [2003] O.J. No. 4592 (C.A.)
    at para. 4;
R. v. Portillo
, [1999] O.J. No. 2435 (S.C.), at para. 36.

[29]

The Crown relies on
R. v. Deol
, 2017
    ONCA 221, 352 C.C.C. (3d) 343, at paras. 10-12, where this court confirmed
    a voice identification caution will not always be required. However,
Deol
involved three witnesses who were already familiar with the accused and his
    voice. This case involves a single voice identification witness with no prior
    contact with the appellant.

[30]

While not as significant as the error in failing
    to provide a caution on the eyewitness identification evidence, in the
    circumstances of this case, a voice identification caution was warranted as
    well.

(3)

The trial judge failed to caution the jury on
    circumstantial evidence

[31]

The appellant argues that the trial judge also
    was obliged to provide a
Villaroman
caution in light of the Crowns
    strong reliance on circumstantial evidence in the case.

[32]

The Crown placed significant reliance on
    circumstantial evidence in relation to the possession charge against the
    appellant, particularly the items recovered from the taxi and the apartment. The
    trial judge made clear the difference between direct and circumstantial
    evidence in his charge, and the fact that the circumstantial evidence had to be
    proven beyond a reasonable doubt. These instructions, while important, do not
    take the place of a
Villaroman
instruction where there is real risk
    that the jury may infer guilt based on circumstantial inferences.

[33]

The jury could not convict the appellant unless
    the only reasonable inference available on all of the evidence was that the
    drugs seized were his: see
Villaroman
, at paras.
30-42
. Other plausible
    theories or other reasonable possibilities must also be applied to the evidence
    or the absence of evidence: see
Villaroman
, at para.
37
;
R. v. Anderson
,
    2020 ONCA 780, at para. 24. For example, in this case, some of the
    circumstantial evidence, such as the backpack allegedly belonging to the
    appellant, was challenged by his mothers testimony.

[34]

In my view, a
Villaroman
instruction
    was required in this case.

Does the curative proviso apply in this case?

[35]

In light of my conclusion that the trial judge
    erred in failing to provide the cautions set out above, I must now consider
    whether the curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
applies in this case.

[36]

The curative proviso applies in two circumstances:
    first,
where there is an error so harmless or minor
    that it could not have had any impact on the verdict; and second, where there
    are serious errors that would otherwise justify a new trial or an acquittal,
    but where the evidence against the accused was so overwhelming that a
    conviction was inevitable.

[37]

The Crown has the burden of establishing that
    the curative proviso is applicable, and that the conviction should be upheld
    notwithstanding the legal error:
R. v. Van
,
2009 SCC 22
, [2009] 1 S.C.R. 716, at para.
34
.

[38]

The Crown argues that either branch of the
    curative proviso is applicable here, as the errors, if any, were minor, and as
    the evidence against the appellant was overwhelming. According to the Crown,
    the appellant was enveloped in a web of circumstantial evidence that he could
    not escape.

[39]

In my view, it cannot be said that the
    cumulative impact of the errors in the charge to the jury were harmless or
    minor. The trial judges failure to instruct the jury on eyewitness, voice, and
    circumstantial evidence impacted virtually all the Crowns case against the
    appellant. Therefore, the question is whether the curative proviso applies
    because the evidence against the appellant was so overwhelming that his guilt was
    inevitable.

[40]

In
R. v. Khan
, 2001 SCC 86, [2001] 3
    SCR 823, the Supreme Court elaborated on the situations where the curative
    proviso applies because the evidence is so overwhelming that a trier of fact
    would inevitably convict:

31. In addition to cases where only a minor
    error or an error with minor effects is committed, there is another class of
    situations in which s. 686(1)(b)(iii) may be applied. This was described in the
    case of
R. v. S. (P.L.)
, 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909,
    at p. 916, where, after stating the rule that an accused is entitled to a new
    trial or an acquittal if errors of law are made, Sopinka J. wrote:

There is, however, an exception to this
    rule in a case in which the evidence is so overwhelming that a trier of fact
    would inevitably convict. In such circumstances, depriving the accused of a
    proper trial is justified on the ground that the deprivation is minimal when
    the invariable result would be another conviction.

Therefore, it is possible to apply the
    curative proviso even in cases where errors are not minor and cannot be said to
    have had only a minor effect on the trial, but only if it is clear that the
    evidence pointing to the guilt of the accused is so overwhelming that any other
    verdict but a conviction would be impossible. [Citations omitted.]

[41]

In this case, the evidence of guilt was indeed
    overwhelming. The appellant conceded that he was at the scene of the drug deal
    and served as the greeter, and extensive evidence pointed to his involvement in
    the drug deals.

[42]

Therefore, I find that the trial judge erred in
    failing to provide specific cautions in his charge to the jury as set out in
    these reasons, but that the curative proviso applies so that the conviction is
    upheld notwithstanding these errors.

[43]

Accordingly, the appeal is dismissed.

Released: January 28, 2022 David M.
    Paciocco J.A.

L. Sossin J.A.

I
    agree. David M. Paciocco J.A.

I
    agree. I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Levant v. DeMelle, 2022 ONCA 79

DATE: 20220128

DOCKET: C69202 & C69203

Gillese, Trotter and Nordheimer
JJ.A.

BETWEEN

Ezra
Levant and Rebel News Network Ltd.

Plaintiffs (Appellants/
Respondents by way of cross-appeal)

and

Brendan
DeMelle
and The Narwhal News Society

Defendants (
Respondent/
Appellant by way of cross-appeal
)

AND BETWEEN

Rebel
News Network Ltd.

Plaintiff (Appellant/
Respondent by way of cross-appeal)

and

Al Jazeera
Media Network

Defendant (Respondent/
Appellant by way of cross-appeal)

A. Irvin Schein and Tamara
Markovic, for the appellants/respondents by way of cross-appeal

M. Philip Tunley, for the
respondents/appellants by way of cross-appeal

Heard: November 16, 2021

On appeal from the order of Justice James
F. Diamond of the Superior Court of Justice, dated February 16, 2021 and March
15, 2021, with reasons reported at 2021 ONSC 1074, and from the order of
Justice James F. Diamond of the Superior Court of Justice, dated February 16,
2021 and March 15, 2021, with reasons reported at 2021 ONSC 1035.
[1]

Nordheimer J.A.:

[1]

There are two orders in two separate
proceedings, the appeals from which were heard together. In each case, the appeal
is taken from the order of the motion judge, made pursuant to s. 137.1 of the
Courts
of Justice Act
, R.S.O. 1990, c. C.43, that dismissed an action involving a
claim for defamation. Additionally, in each appeal, there is a motion for leave
to cross-appeal from the motion judges award of costs.

[2]

Since the appeals were heard together, I will
deal with both of them in these reasons. While I do not agree entirely with the
analysis undertaken by the motion judge in either case, I agree with the
results that he reached and thus would dismiss both appeals. I do not, however,
agree with the motion judges costs awards in these cases. Consequently, I
would grant leave to appeal the costs awards, and allow each of those cross-appeals.

A.

BACKGROUND

[3]

Ezra Levant is a journalist and broadcaster. In 2015,
he founded Rebel News Network Ltd. According to Mr. Levant, in keeping with his
own personal beliefs, Rebel News adopted a conservative and pro-Israel
orientation. Mr. Levant also says that Rebel News could be considered to hold
an anti-Islamist orientation, Islamism being the political manifestation of
radical Islam. Rebel News believes that radical Islam promotes violence and
erodes secular civil liberties.

[4]

Brendan DeMelle is a journalist, writer and
researcher specializing in media, politics, climate change and clean energy.
Since 2010, Mr. DeMelle has reported on climate misinformation campaigns as the
executive director of DeSmog, an online news outlet focused on climate change
and environmental concerns.
[2]

[5]

Al Jazeera is a public utility private
corporation in accordance with the laws of the State of Qatar. Al Jazeera was
founded in 1996 and launched its English language branch in 2006. Its head
office is in the city of Doha, Qatar. Al Jazeera broadcasts worldwide.

(1)

The Al Jazeera statements

[6]

Rebel News alleges that Al Jazeera published
three separate defamatory statements in an internet article and YouTube video
published by it on or about September 29, 2019. Both the article and YouTube
video were co-produced by Ryan Kohls and Florence Phillips for a weekly program
called The Listening Post. Mr. Kohls is a journalist who has worked as an
interview producer for Al Jazeera since 2013. Ms. Phillips is a senior producer
and reporter who has worked for Al Jazeera since 2009.

[7]

The article was entitled The Right Perspective?
YouTube, Radicalization and Rebel Media. After describing Rebel News as one
of the internets most influential far-right publications, the article
contained the following statements:

Perhaps even more damaging to The Rebels
reputation has been its connection to violent acts; acts like the Finsbury Park
Mosque attack in London, the Quebec City mosque shooting, and in Fredericton,
New Brunswick, the murder of two police officers. In all three instances, the
men involved watched The Rebel Media and had become convinced Muslims were invading
their countries.

[8]

After receiving Notices of Libel from Rebel News,
in mid-November 2019, Al Jazeera published the following addendum:

Correction, November 15, 2019: Since this
report was first published, we have updated it to correct the following facts:
... In the web article it was stated that the perpetrators of three violent
attacks had all watched Rebel News. For strict factual accuracy, we have
clarified that they watched Rebel News or the work of their regular
contributors.

[9]

Within the YouTube video, the following
statement was made at the 22 second mark:

The content, typically disguised as
cutting-edge journalism, can have real-life ramifications; viral material that
is capable of not just radicalizing the views of those that watch it, but driving
some of them to acts of violence. Among the best-known practitioners of the
art: The Rebel Media.

[10]

At approximately the eight minute mark of the
same video, the following statement was made:

The Ottawa Police have filed a criminal
complaint alleging that Rebel Media had breached a section of the Canadian
Criminal Code by wilfully promoting hatred of the Muslim community.

[11]

Once again, after Al Jazeera received Rebel News
Notice of Libel, it published this addendum in mid-November 2019:

Correction, November 15, 2019: Since this
report was first published, we have updated it to correct the following facts:
In the video report we stated that the Ottawa Police had filed a criminal
complaint against Rebel. In fact, a complaint had been received by the Ottawa Police.

[12]

The program generated slightly fewer than 40,000
views on the internet.

(2)

The DeMelle statements

[13]

Mr. DeMelle wrote and published an article on or
about October 19, 2019. The article was entitled Right Wing Attacks on Greta
Thunberg: How Low Can They Go? Canadas Extremist Network The Rebel Tries for
the Prize.

[14]

In the article, Mr. DeMelle referred to Mr.
Levant and Rebel News as follows:

The Rebel was founded by disgraced neo-Nazi
sympathizer Ezra Levant, a climate denier who once interned at the Charles Koch
Foundation. Levant and The Rebel Media earned some notoriety for their
laudatory coverage of the deadly 2017 Unite the Right rally in Charlottesville.

[15]

In the article, the words laudatory coverage of
the deadly 2017 Unite the Right rally in Charlottesville are hyperlinked to an
article written by Dan Lett, on August 19, 2017, entitled Rebel Medias
meltdown and the politics of hate and published on the website of the Winnipeg
Free Press.

[16]

After receiving a Notice of Libel from the appellants,
in early November 2019, Mr. DeMelle made the following revisions to the
article:

(a) He removed the words disgraced neo-Nazi
sympathizer; and,

(b) He removed the words Levant and in
reference to the coverage of the Charlottesville rally, and amended the
description of that coverage by indicating that it had been provided with
respect to participants in the rally rather than the rally itself.

[17]

The article generated slightly fewer than 16,000
views on the internet.

B.

THE DECISIONS BELOW

[18]

Rebel News commenced a proceeding against Al
Jazeera seeking damages for defamation. Mr. Levant and Rebel News also commenced
a simplified procedure action against Mr. DeMelle and
The Narwhal News Society
for
defamation. Al Jazeera and Mr. DeMelle each brought a motion pursuant to s. 137.1(3)
of the
Courts of Justice Act
for orders dismissing the plaintiffs
actions.

(1)

The
Al Jazeera motion

[19]

The motion judge began by setting out the contents
of s. 137.1. He then properly set out the shifting burden on a s. 137.1 motion.
He said that the initial burden is on the defendant to satisfy the court that
the proceeding arises out of an expression made by the defendant and that the
expression relates to a matter of public interest. If the defendant meets its
onus, then the onus shifts to the plaintiff to show that there are grounds to
believe that the proceeding has substantial merit; that there are grounds to
believe that there are no valid defences; and that the harm suffered by the plaintiff
as a result of the defendants expression is sufficiently serious that the
public interest in permitting the plaintiffs action to proceed outweighs the
public interest in protecting the defendants expression.

[20]

The motion judge found that Al Jazeera met its
initial onus. There was no doubt that the expression was made by Al Jazeera.
Further, Rebel News conceded that the expression related to a matter of public
interest.

[21]

The burden then shifted to Rebel News. In
considering whether the proceeding had substantial merit, the motion judge
reviewed the evidence filed and the constituent elements of a claim for
defamation. Al Jazeera contended that the article and YouTube video would not
have lowered the reputation of Rebel News because Rebel News already had a
reputation of publishing hateful commentary disguised as cutting-edge
journalism. Consequently, according to Al Jazeera, the reputation of Rebel
News was already so low that it could not be further lowered by the contents of
the article and YouTube video.

[22]

The motion judge rejected Al Jazeeras argument.
He found that considering Rebel News existing reputation would involve too
close an examination of the merits of the action at an early stage of the
proceedings. He concluded that the statements in the article and YouTube video were
quite capable of being defamatory, and as such he held that there were
grounds to believe that the action had substantial merit.

[23]

The motion judge then considered the defences
raised and whether Rebel News had shown that none of them were valid. Three
defences were considered: (i) fair comment; (ii) justification; and (iii)
responsible journalism. The motion judge concluded that the first two defences
were not valid. However, he held that the third defence might succeed.
Therefore, the motion judge concluded that Rebel News had failed to show that there
was no valid defence and, consequently, its action had to be dismissed.

[24]

Notwithstanding his conclusion on that issue,
the motion judge went on to consider the final step of the analysis, that is,
which of the two public interests outweighed the other. He concluded that the
weighing favoured the public interest in protecting Al Jazeeras expression and
public debate. In doing so, the motion judge noted that Rebel News had not led
any evidence that it had suffered specific harm as a result of the article and
YouTube video.

(2)

The DeMelle motion

[25]

The motion judge generally followed the same
format in his decision on this motion. Again, there was no dispute that the
expressions were those of Mr. DeMelle. On whether the expressions related
to a matter of public interest, the motion judge concluded with some
reluctance that they did. Consequently, Mr. DeMelle had met his onus and
the burden shifted to Mr. Levant and Rebel News.

[26]

On the issue of whether the action had
substantial merit, the question again arose as to whether the reputations of Mr.
Levant and Rebel News could be lowered as a result of the expressions  an
argument that generally tracked the argument advanced by Al Jazeera on its
motion. Once again, the motion judge rejected that argument largely for the
same reasons he had when dealing with it in the Al Jazeera motion. The motion
judge concluded that the presence of grounds to believe that the defamation action
had substantial merit cannot be questioned.

[27]

Going on to the defences raised, the same three
defences were in play: (i) justification; (ii) fair comment; and (iii)
responsible journalism. In this case, though, the motion judge concluded that
none of the defences were valid. In finding that the defence of fair comment
was not valid, the motion judge found that referring to Mr. Levant as a
neo-Nazi sympathizer traverses too far into the realm of fact, or at least
imputation of fact, and thus could not constitute comment. Consequently, the
defence of fair comment was not available. In finding that the defence of
responsible journalism was not valid, the motion judge found that Mr. DeMelle
had not shown that he was reasonably diligent in verifying the accuracy of the
impugned expressions.

[28]

The motion judge then proceeded to the final
issue, the weighing of the competing public interests. On this issue, the
motion judge noted that Mr. Levant and Rebel News had not led any evidence of
specific harm or damage to their reputations as a result of the expressions. He
therefore found that Mr. Levant and Rebel News had not shown the necessary harm
that would outweigh the public interest in permitting public expression. Consequently,
he dismissed the action.

(3)

The costs awards

[29]

The motion judge addressed the costs of each
motion in brief written endorsements. He noted that s. 137.1(7) of the
Courts
of Justice Act
provides that, if the motion is granted and the proceeding
is dismissed, the moving party is entitled to its costs of the motion and the
proceeding on a full indemnity basis, unless the judge determines that such an
award is not appropriate in the circumstances. On both motions, the motion
judge found that an award of costs on a full indemnity basis was not
appropriate. Instead, he awarded each successful moving party its costs on a
partial indemnity scale.

C.

ANALYSIS

(1)

The
Al Jazeera motion

[30]

Rebel News asserts two main errors by the motion
judge. One has to do with the defence of responsible journalism. The other has
to do with the motion judges balancing of the public interests at stake.

[31]

Before turning to these issues, I should address
the argument over the proper standard of review. Rebel News contends that the
standard of review is correctness because it says that the motion judge
misconstrued the law on defamation and its defences. I do not agree. While
Rebel News dresses up its complaint as the motion judge having misconstrued the
law, what Rebel News is actually complaining about is the application of the
law by the motion judge to the facts of this case. That application is not
subject to a standard of review of correctness. Rather, the motion judges
decision is entitled to deference, absent a reviewable error:
Bent v. Platnick
,
2020 SCC 23, 449 D.L.R. (4th) 45, at para. 77.

a)

The defence of responsible journalism

[32]

Rebel News contends that the motion judge erred
in finding that the defence of responsible journalism might succeed because,
according to Rebel News, Al Jazeera did not act responsibly in respect to the article
and YouTube video.

[33]

I do not find a reviewable error in the motion
judges analysis of the defence of responsible journalism.

[34]

First, Rebel News submits that the motion judge
erred by not considering that Mr. Kohls, one of the authors of the expressions,
had not spoken to certain individuals who might have provided contrary
viewpoints to those that he had received, and thus the article could have been
more balanced.

[35]

I do not see anything in the requirements of the
defence of responsible journalism that places a burden on a journalist to
interview every individual who might conceivably have something to offer on the
subject being written on. Certainly, no such burden is to be found in the seminal
decision on this defence,
Grant v. Torstar Corp.
,

2009 SCC
61, [2009] 3 S.C.R. 640. Indeed, placing such a burden on journalists would seem
to be inconsistent with the point that McLachlin C.J. makes in
Grant
,
at para. 113:

The legal requirement to verify accuracy
should not unduly hamstring the timely reporting of important news.

[36]

The motion judge reviewed the steps that Mr. Kohls
had taken to verify the accuracy of the article and video. Of importance to
this issue is the salient fact that efforts had been made to interview Mr. Levant.
However, as found by the motion judge, at para. 66:

Given the opportunity to provide Rebels side
of the story, neither Levant nor Rebel provided any relevant comments,
responses or facts.

[37]

It is also relevant to this issue that, on a s.
137.1 motion, the motion judge is not finally determining whether a defence
will succeed. Consequently, the motion judge is not to conduct the equivalent
of a summary judgment motion. Rather, the motion judge only considers whether
there are grounds to believe that there is no valid defence. As Côté J.
explained in
1704604 Ontario Ltd. v. Pointes Protection Association
,
2020 SCC 22, 449 D.L.R. (4th) 1, at para. 37:

To be sure, s. 137.1(4)(a) is not a determinative
adjudication of the merits of the underlying claim or a conclusive
determination of the existence of a defence.

[38]

Rebel News has not shown any palpable and
overriding error in the motion judges determination of the adequacy of the
steps taken by Mr. Kohls in verifying the accuracy of the contents of the
article and YouTube video, given the limited analysis that the motion judge was
required to undertake. His conclusion on this issue is entitled to deference.

[39]

Rebel News second attack on the motion judges
conclusion is its contention that Mr. Kohls acted out of malice, and that fact precludes
Al Jazeeras reliance on the defence. The motion judge did not directly address
the contention that Mr. Kohls was actuated by malice. However, his conclusion
that the defence of responsible journalism could succeed carries with it the
implicit rejection of any allegation of malice, since the defence of
responsible journalism is not available if malice is present. As McLachlin C.J.
explained in
Grant
, at para. 92:

Furthermore, it makes little sense to speak of
an assertion of responsible journalism being defeated by proof of malice,
because the absence of malice is effectively built into the definition of responsible
journalism itself.

[40]

Rebel News third and final challenge to the
motion judges conclusion regarding the defence of responsible journalism is its
contention that the motion judge erred in finding that Rebel News was provided
with a proper opportunity to respond to the article and YouTube video before
they were published. It submits that there was no evidentiary foundation for
the motion judges conclusion to the contrary at para. 66 of his reasons, to
which I referred above.

[41]

There is no question that, in the context of a
defence of responsible journalism, the opportunity for the target of the
expression to respond is important. McLachlin C.J. makes this point in
Grant
,
at para. 116:

In most cases, it is inherently unfair to
publish defamatory allegations of fact without giving the target an opportunity
to respond. [Citation omitted.]

[42]

Rebel News asserts that Mr. Levant was given no
meaningful opportunity to reply, because none of the defamatory statements was
ever put to Levant for comment. The record does not bear out that assertion.
While the specifics of the article and video were not provided to Mr. Levant, Ms.
Phillips did tell him that Al Jazeera was working on a ten minute feature
film that will in large part focus on The Rebel Media  your history, the
outlets origins, the varied presenters you offer a platform to, and some of
the content that you produce. Ms. Phillips also told Mr. Levant of one
specific comment that was included in the video, and requested his response to
it:

The Rebel media is an alt-right media company
that creates content on a range of issues. I would say anti‑Muslim,
anti-immigrant, anti-refugee, anti-climate, anti-liberal, anti a lot of things
And unlike a real news organization they dont look for balance. They dont
look to try to actually find out whats really going on. But they simply try to
create narratives and anger that really get people riled up

[43]

Mr. Levant refused to provide any response to Ms.
Phillips. He said that he would respond to allegations of fact but not to
opinions. Ms. Phillips then sent him a more specific quote but was met with the
same response.

[44]

The record demonstrates that Mr. Levant was
given the opportunity to respond, on behalf of Rebel News, to the thrust of the
article and YouTube video. He declined to do so. There is nothing in the
decision in
Grant
, to my reading, that requires that the actual words
of the proposed defamatory allegations must be put to the subject of the
allegations. What Al Jazeera was required to do was give Rebel News an
opportunity to respond. In making that a meaningful opportunity, Al Jazeera
was required to give Rebel News the essence, or gist, of the proposed
publication, sufficient to allow Rebel News to understand what was going to be
said about it, and thus provide the necessary context for its response. That is
what Al Jazeera did.

[45]

On this point, I return to the nature of the
exercise being carried out by the motion judge. It is to determine whether
there are grounds to believe that a defence is not valid. It is not a
conclusive determination of that issue:
Pointes
, at para. 37. Whether
the opportunity to respond was sufficient is ultimately a matter for trial.

[46]

All that the motion judge was required to do was
to review the record and determine whether Rebel News had established that the defence
of responsible journalism was not a valid defence. In reaching a conclusion on
that question, the motion judge was not required to delve deeply into the
evidence, or to make findings of credibility, or to otherwise resolve disputed
questions of fact:
Pointes
, at para. 52. The role of the motion judge
is much more limited, which coincides with the limited record that will exist,
given the early stage of a proceeding when these motions are supposed to be
addressed. Once again, the motion judges conclusion, that the defence of
responsible journalism was available to Al Jazeera on the record, is entitled
to deference.

b)

The weighing of public interests

[47]

The second error alleged by Rebel News is the motion
judges weighing of interests under s. 137.1(4)(b). This weighing was described
by Côté J. in
Pointes
, at para. 61, as the crux of the analysis. The
subsection reads:

No judge shall dismiss a proceeding
under subsection (3) if the responding party satisfies the judge that,

(b) the harm likely to be or have
been suffered by the responding party as a result of the moving partys
expression is sufficiently serious that the public interest in permitting the
proceeding to continue outweighs the public interest in protecting that
expression.

[48]

In considering this issue, I am mindful of the
fact that the motion judge was not required to proceed to consider this issue
in light of his conclusion about the presence of a potentially valid defence.
Nonetheless, he chose to address the question in the interests of completeness.
His relatively brief analysis should be considered in that context.

[49]

Rebel News says that the motion judge erred in
requiring it to lead evidence of specific harm or damage when such evidence is
not required. In my view, this submission ignores the salient fact that Rebel
News is a corporation. It is not an individual. That is a significant
distinction in the law of defamation. For example, it directly affects the
level of damages that can be awarded. As Blair J.A. noted in
Barrick Gold
Corp. v. Lopehandia
(2004), 71 O.R. (3d) 416 (C.A.), at para. 49, quoting
from Peter F. Carter-Ruck and Harvey Starte,
Carter-Ruck on Libel and
Slander
, 5th ed. (London: Butterworths, 1997):

Limited companies, and other corporations, may
also be awarded general damages for libel or slander, without adducing evidence
of specific loss. However, it is submitted that in practice, in the absence of
proof of special damage, or at least of a general loss of business, a limited
company is unlikely to be entitled to a really substantial award of damages.

[50]

Rebel News did not lead evidence of any specific
harm it suffered as a consequence of the impugned expression. It was required
to do at least that. As Côté J. said in
Pointes
, at para. 71:

[T]he plaintiff need not prove harm or
causation, but must simply provide evidence for the motion judge to draw an
inference of likelihood in respect of the existence of the harm and the
relevant causal link.

[51]

One of the failings in the submissions of Rebel
News on this question is its reliance on cases such as
Montour v. Beacon
Publishing Inc.
, 2019 ONCA 246, leave to appeal to S.C.C. refused, 38657 (October
10, 2019);
Levant v. Day
, 2019 ONCA 244, 145 O.R. (3d) 442, leave to
appeal refused, [2019] S.C.C.A. No. 194; and
Lascaris v. Bnai Brith Canada
,
2019 ONCA 163, 144 O.R. (3d) 211, leave to appeal refused, [2019] S.C.C.A. No.
147. Those cases were all decided prior to the decision in
Pointes
and
the various refinements that that decision brought to the required analysis
under s. 137.1. Further, all of those cases involved individual plaintiffs,
where the harm to their reputations could be presumed, especially where their
reputations were otherwise seemingly unblemished.

[52]

In this case, any presumption of harm must be
limited, not only because Rebel News is a corporation, but also because there
was evidence before the motion judge that the reputation of Rebel News, however
one might characterize it, cannot be said to be unblemished. On this point, I
do find fault with the motion judges analysis of harm insofar as he said that
he was making no specific finding about the state of Rebel News reputation. I
do not understand how the motion judge could maintain that position, while at
the same time purporting to weigh the harm to the reputation of Rebel News
against the public interest in protecting the expression. It seems to me that a
consideration of the state of Rebel News reputation was a necessary step to be
taken in order to conduct a proper weighing.

[53]

For the purposes of that weighing, however, it
is sufficient to recognize the state of Rebel News reputation as it appears
from the record (not unblemished, as I put it earlier). Given that fact, it was
incumbent on Rebel News to lead evidence, either of business lost because of
the impugned expressions, or at least evidence that its reputation had been
harmed in some respect by them. This requirement is evidenced in
Pointes
,
at para. 72, where Côté J. said:

[E]vidence of a causal link between the
expression and the harm will be especially important where there may be sources
other than the defendants expression that may have caused the plaintiff harm.
[Citation omitted.]

[54]

Rebel News failed to lead specific evidence of
harm. Given the absence of such evidence, I agree with the conclusion that the motion
judge reached that weighing the two public interests favoured protecting the
expression of Al Jazeera. Any harm to Rebel News appears slight whereas the
harm that arises from interfering with publications by the media on matters of
public interest is significant.

(2)

The DeMelle motion

[55]

Mr. Levant and Rebel News assert two main errors
by the motion judge. One is that the motion judge erred in concluding that Mr.
DeMelles expressions relate to a matter of public interest. As in the Al
Jazeera motion, the second has to do with the motion judges balancing of the
public interests at stake.

[56]

The appellants, understandably, do not take
issue with the motion judges conclusion that there are grounds to believe that
none of the defences asserted by the respondent were valid. The respondent does
contest those findings, however, in responding to the appellants challenge to
the ultimate decision reached by the motion judge.

a)

Statements relating to a matter of public interest

[57]

The appellants take issue with the motion judges
conclusion that the impugned expressions were on a matter of public interest
a conclusion that he reached with some reluctance. In making their
submissions, the appellants focus on the accusation that Mr. Levant is a
neo-Nazi sympathizer. They say that the accusation is nothing more than a
gratuitous insult and cannot be characterized as having anything to do with any
matters of public interest.

[58]

The flaw in the appellants argument on this
point is that they isolate the neo-Nazi sympathizer statement from the rest of
the article. That is not the proper approach to determining whether the
expression in issue relates to a matter of public interest. Rather, it is the
entire expression that must be considered. In other words, in this case, it is the
article as a whole that must be considered in determining whether the
expression is on a matter of public interest.

[59]

That this is the proper approach is clear from
the decision in
Grant
, which is referred to at some length on this
subject in
Pointes
. In
Grant
, McLachlin C.J. said, at para.
101:

In determining whether a publication is on a
matter of public interest, the judge must consider the subject matter of the
publication as a whole. The defamatory statement should not be scrutinized in
isolation.

[60]

It would appear that the motion judge took the
same erroneous approach to the issue of public interest. If he did not, it is
difficult to understand how he would have concluded with some reluctance that
the expression related to a matter of public interest. The article, taken as a
whole, clearly related to a matter of public interest. Indeed, it is difficult to
identify an issue that is more in the public interest currently than the issue
of climate change and its related topics, including the actions of climate
change deniers. The alleged actions of climate change deniers in terms of
trying to silence, or intimidate, or otherwise harass a person, who is as
outspoken on the subject of climate change as Greta Thunberg, would naturally
draw the publics interest. I see no reason for reluctance in concluding that
the expression related to a matter of public interest.

b)

The defence of fair comment

[61]

The question then becomes whether there are
grounds to believe that the respondent has no valid defence to the appellants
claim.

[62]

I do not consider it necessary to review each of
the three defences that the motion judge found were not valid. His conclusions
regarding the defence of justification and the defence of responsible
journalism were open to him on the record and are entitled to deference. However,
his analysis of fair comment is flawed, even though his conclusion that there
are grounds to believe that Mr. DeMelles fair comment defence is not
valid is correct.

[63]

The motion judge erred in concluding that calling
Levant a neo-Nazi sympathizer traverses too far into the realm of fact, or at
least imputation of fact, to permit a defence of fair comment. In so
concluding, the motion judge committed the same error that was identified by
the Supreme Court of Canada in
WIC Radio Ltd. v. Simpson
, 2008 SCC 40,
[2008] 2 S.C.R. 420. In discussing the difference between comment and fact in
that case, Binnie J., at para. 26, quoted with approval from the decision in
Ross
v. New Brunswick Teachers Assn.
, 2001 NBCA 62, 201 D.L.R. (4th) 75, at
para. 56, where the New Brunswick Court of Appeal said that comment"
includes a deduction, inference, conclusion, criticism, judgment, remark or
observation which is generally incapable of proof. Binnie J. also cited Raymond
E. Brown,
The Law of Defamation in Canada
(Scarborough: Carswell,
1994) (loose-leaf updated 2007, release 4), for the proposition that words that
may appear to be statements of fact may, in pith and substance, be properly
construed as comment. Of significance to this case, Binnie J. noted that:

This is particularly so in an editorial
context where loose, figurative or hyperbolic language is used in the context
of political debate, commentary, media campaigns and public discourse.
[Citation omitted.]

[64]

In the context in which it appears in the
article, the statement that Mr. Levant is a neo-Nazi sympathizer is clearly a
matter of comment. It therefore opens the door to the defence of fair comment. The
elements of that defence are well‑established. They were set out recently
in
Blair v. Ford
, 2021 ONCA 841, at para. 45:

There are five elements to the defence of fair
comment:

(i)      the comment must be on a matter of
public interest;

(ii)      the comment must be based on fact;

(iii)     the comment, although it can include
inferences of fact, must be recognizable as comment;

(iv)     the comment must be one that any
person could honestly make on the proved facts; and

(v)     the comment was not actuated by
express malice.

[65]

Where Mr. DeMelles reliance on this defence
falters is on the fourth element. Based on the record before us, no person
could honestly express that opinion on the proved facts. Undoubtedly, that is
the reason why, immediately upon the Notice of Libel being delivered, Mr. DeMelle
removed that comment from the article. The removal of the comment is not a
defence to the claim for defamation, however. Rather, it is relevant to the
issue of any damage that may have been caused by it: Raymond E. Brown,
Brown
on

Defamation: Canada, United Kingdom, Australia, New Zealand, United
States
(Toronto: Carswell, 1994) (loose-leaf updated 2020, release 5), ch.
25 at 124-25.

c)

The weighing of public interests

[66]

The motion judge concluded that the weighing
exercise required by s. 137.1(4)(b) favoured the respondent because, as
was the case in the Al Jazeera action, the appellants had not led any evidence
of particular or specific economic harm or damage to their reputation. Largely
for the same reasons that I have set out above in considering the weighing
exercise in the Al Jazeera motion, I agree with the motion judges conclusion,
but not with his analysis.

[67]

I begin by acknowledging that the harm analysis
is different in this case given the personal presence of Mr. Levant as a
plaintiff. The motion judge did not address that distinguishing factor. Some
level of damage to Mr. Levants reputation can be presumed from the defamatory
statement. However, that is not sufficient for the purposes of s. 137.1(4)(b).

[68]

The presumption of damages in a defamation
action involving an individual only goes so far. While it may be sufficient to
establish the existence of damages, it is not sufficient to establish the level
of those damages. This point is addressed in the decision of the Court of
Appeal (England and Wales) in
Lachaux v. Independent Print Ltd.
,
[2017] EWCA Civ. 1334, [2018] 2 W.L.R. 387,

where that court was
dealing with a statutory provision intended to limit actions for defamation and
create a higher threshold for making out a defamation claim  a not dissimilar
exercise as s. 137.1 engages. On the issue of the presumption of damages in a
defamation case, the court said, at para. 72:

[T]here is no presumption, at law, of
serious
damage in a libel case. Accordingly that, under s. 1(1), has to be proved. The
point nevertheless remains that serious reputational harm is capable of being
proved by a process of inference from the seriousness of the defamatory
meaning. [Emphasis in original.]

[69]

I accept that the neo-Nazi sympathizer comment
is a serious one. I would not, however, draw an inference that it resulted in serious
reputational harm to Mr. Levant on the record in this case. First, the
statement was fairly quickly removed from the article in question. Second, the
article itself drew limited attention, given the evidence that it generated
slightly fewer than 16,000 views on the internet. Third, is the evidence
regarding the state of Mr. Levants reputation as reflected in the affidavits
filed on behalf of the respondent. Balanced against all of that is the sole
statement of Mr. Levant in his affidavit:

I believe that the dissemination of these
defamatory statements has damaged my reputation in this regard, and accordingly,
Rebel News and I should be entitled to compensation.

That statement is not only self-serving,
it is completely devoid of any foundation for the belief.

[70]

Finally, on this point, when a person injects
themselves into public debate over a contentious topic, they must expect that they
are going to be met with some measure of rebuttal, perhaps forceful rebuttal,
by those who take an opposite view. The case of
WIC Radio
is an
example of that reality. The evidence demonstrates that the appellants quite
readily inject themselves into the public debate on many of these types of
issues. Indeed, there is evidence that they consider that to be part of the
rationale for their existence. The appellants should not be surprised when they
are then met with a response  even a very forceful response. While such
responses do not justify crossing the line into defamatory speech, they are a
factor to consider in assessing the level of damages that the defamatory aspect
of the response may create. As Binnie J. said in
WIC Radio
, at para.
4:

We live in a free country where people have as
much right to express outrageous and ridiculous opinions as moderate ones.

[71]

As I concluded with respect to the Al Jazeera motion,
the appellants have failed to lead evidence of any specific harm or any level
of serious harm. Balanced against whatever harm may be presumed, is the public
interest in protecting freedom of expression and in having robust debates on
matters of public importance. I agree with the motion judge that the appellants
failed to establish, in the words of s. 137.1(4)(b), that the harm likely to
be or have been suffered by the [appellants] as a result of [the respondents]
expression is sufficiently serious that the public interest in permitting the
proceeding to continue outweighs the public interest in protecting that
expression.

(3)

The costs awards

[72]

In both proceedings, the motion judge awarded
costs to the respondents on a partial indemnity scale. The respondents seek
leave to appeal from those costs awards, arguing that the motion judge erred in
departing from the presumptive scale of costs provided for in s. 137.1(7),
which reads:

If a judge dismisses a proceeding under this
section, the moving party is entitled to costs on the motion and in the
proceeding on a full indemnity basis, unless the judge determines that such an
award is not appropriate in the circumstances.

[73]

In the DeMelle motion, the motion judge said
that he considered a full indemnity award of costs not to be appropriate in
the circumstances of this case. It is not clear what circumstances the motion
judge was referring to. Slightly more clarity may be found in the motion
judges decision on costs in the Al Jazeera motion, where he said that [b]alancing
those findings, an award of full indemnity costs was not appropriate. The
findings to which he was referring were the responsible journalism defence and
the public interest in allowing Al Jazeeras expression, on the one hand, and
that Rebel News action had substantial merit and the two other defences
advanced were not valid, on the other hand.

[74]

I would grant leave to appeal in these cases
because I conclude that there are strong grounds upon which the appellate
court could find that the judge erred in exercising his discretion:
Brad-Jay
Investments Ltd. v. Szijjarto
(2006), 218 O.A.C. 315, at para. 21, leave
to appeal refused, [2007] S.C.C.A. No. 92. I reach that conclusion principally
because of the lack of reasons provided by the motion judge for his costs
awards.

[75]

When an action is dismissed under s. 137.1, the
statutory presumption is that the successful moving party will be awarded costs
on a full indemnity basis, unless the judge determines that such an award is
not appropriate. The statute does not provide any factors to be considered in
deciding when the presumptive award will not be appropriate.

[76]

That said, it is apparent from the wording of s.
137.1(7) that an award of full indemnity costs is not intended to apply to
every case where the action is dismissed. The subsection clearly leaves the
motion judge with the discretion to decide whether an award of full indemnity
costs is not appropriate in a particular case. The issue then becomes what
features will distinguish a case where an award of full indemnity costs is not
appropriate as opposed to one where it is.

[77]

In my view, merely concluding that there are
countervailing determinations on the factors that are required to be considered
under s. 137.1 is an insufficient basis to make a finding that it is not
appropriate to award full indemnity costs. If that was all that was required,
most cases would not draw a full indemnity costs award since, as the existing
case law under s. 137.1 amply demonstrates, there are countervailing
determinations in many cases. To adopt that as the distinguishing feature would
result in the presumptive costs award not being presumptive at all.

[78]

The genesis for a presumptive award of full
indemnity costs can be found in the Anti-SLAPP Advisory Panel,
Report to
the Attorney General
(Ontario: Ministry of the Attorney General, 2010) (the
Report). In
Pointes
, Côté J. observed that the Report is a
persuasive authority for the purposes of statutory interpretation as it was
the clear impetus for the legislation, and was relied upon heavily by the
legislature in drafting s. 137.1: at para. 14.

In the Report, the
authors said, at para. 44:

It is important that the special procedure
provide for full indemnification of the successful defendants costs to reduce
the adverse impact on constitutional values of unmeritorious litigation, and to
deter the commencement of such actions.

[79]

That statement reveals two factors driving the
reason for a presumptive award of full indemnity costs: (i) to reduce the
adverse impact on constitutional values of unmeritorious litigation; and (ii) to
deter the commencement of such actions. The reference to such actions, I
conclude, is a reference to actions that were launched with the intention to unduly
limit expressions on matters of public interest as set out in s. 137.1(1)(c).
In other words, what is typically referred to as a strategic lawsuit against
public participation (SLAPP).

[80]

On this latter point, I appreciate that the
decision in
Pointes
narrowed the relevance of the indicia of a SLAPP
lawsuit as they relate to the determination of a motion under s. 137.1: at
paras. 78-79. However, that narrowing related to the merits of the motion, and
not to the issue of costs and the appropriateness exception.

[81]

In attempting to give some guidance to the
appropriateness exception, I start with the recognition that this is a matter that
involves the exercise of the motion judges discretion. There will be many
different factors that may impact on the exercise of that discretion depending
on the circumstances of the individual case. Given the rarity of full indemnity
awards, the presence or absence of factors that might drive an award of costs
on a higher scale in regular civil litigation may be relevant to the exercise
of the appropriateness discretion in these special cases. For example, claims
borne of ulterior motives, which a SLAPP lawsuit represents, is an example of
one such factor.

[82]

Turning to the cases at hand, there is evidence
that these actions were commenced in an effort to quell the public expressions
made. They bear the indicia of a SLAPP lawsuit. Those indicia were set out by
Doherty J.A. in
Platnick v. Bent
, 2018 ONCA 687, 426 D.L.R. (4th) 60,
at para. 99, affd 2020 SCC 23:

·

a history of the plaintiff using litigation or
the threat of litigation to silence critics;

·

a financial or power imbalance that strongly
favours the plaintiff;

·

a punitive or retributory purpose animating the
plaintiff's bringing of the claim; and

·

minimal or nominal damages suffered by the
plaintiff.

[83]

Three of those four factors are present in these
cases, the sole exception being a financial or power balance that strongly
favours the appellants. There is a history of the appellants using litigation
to silence critics. Indeed, Mr. Levant has publicly proclaimed that commencing
such lawsuits is part of a deliberate campaign, which he calls his stop
de-platforming strategy. Other aspects of his public statements also make it
clear that there is a retributory purpose to bringing these claims. These
lawsuits are clearly designed to make critics think twice about expressing
their criticisms of the appellants for fear of being sued. Further, for the
reasons that I have already set out above in considering the issue of harm,
there is good reason to conclude that any damages suffered by the appellants
arising from the defamatory expressions are minimal.

[84]

These actions thus bear three of the four
hallmarks of a SLAPP lawsuit. It is such lawsuits that s. 137.1 was designed to
prevent, or at least quash at the earliest opportunity. As I have already set
out, it is the deterrence of such lawsuits that led to the Reports proposal
for full indemnity costs. The purpose behind the presumptive costs award
clearly applies to these cases.

[85]

In considering this issue, I am mindful of the
fact that costs awards are ones which normally attract a high degree of
deference from appellate courts given the nature and subjectivity of costs
awards. However, in this case, that high degree of deference is displaced by
the paucity of reasons offered by the motion judge for his awards, especially
where the motion judge was departing from a statutory presumption. In that
situation, there is an obligation to provide sufficient reasons for the
departure. In the absence of sufficient reasons, the costs awards are not
entitled to deference.

[86]

A further comment on the issue of the costs
awards is warranted. The respondents argue that the motion judge erred not only
in his determination of the merits of the actions but also in considering that
determination as a factor when deciding costs. I do not agree that the motion
judge erred in that regard. I have essentially addressed the respondents
challenges to the motion judges conclusion on the apparent merits of the
actions above. It is unnecessary to address those issues again in the context of
costs.

[87]

Before leaving the costs awards, I must address
one other issue. In the costs sought by Al Jazeera there was included time
charged by a solicitor in the United Kingdom. The justification for this
inclusion, that is offered by Al Jazeera, is that it is an international media
organization that was served
ex juris
in the United Kingdom with this
proceeding. Al Jazeera says that, in those circumstances, Rebel News must have
reasonably anticipated that it would incur such costs and thus they should be
recoverable. Al Jazeera does not provide any authority for this proposition.

[88]

On this point, the motion judge simply said that
the solicitor was not retained as an expert, and those fees are not
recoverable as disbursements. However, Al Jazeera was not seeking to
recover these expenses as a disbursement but, rather, was seeking to recover
them as part of the fees portion of their costs award.

[89]

Nevertheless, I agree with the motion judge that
the fees of the United Kingdom solicitor are not recoverable. Costs recoverable
in Ontario are determined in accordance with s. 131 of the
Courts of
Justice Act
and r. 57.01 of the
Rules of Civil Procedure
, R.R.O.
1990, Reg. 194. Rule 57.01(3) stipulates that when costs are awarded, they
shall be fixed in accordance with subrule (1) and the Tariffs. Tariff A,
which deals with the fees and disbursements that are allowable, expressly stipulates
that the fees that are recoverable are, first and foremost, lawyers fees.
The term lawyer is defined in r. 1.03 as a person authorized under the
Law
Society Act
to practise law in Ontario.

[90]

The end result is that fees recoverable as part
of a costs award relate only to lawyers who are authorized to practice in
Ontario. Absent evidence that the United Kingdom solicitor was authorized to
practice law in Ontario, the time spent by that solicitor is not recoverable as
part of the fees portion of the costs awarded. I repeat that this is not a case
where a foreign lawyer was retained to provide expert evidence. In that
situation, the expense of the foreign lawyer may be recoverable like the expense
of any other expert witness. However, that expense would be recoverable as a
disbursement and not as part of the fees portion of the costs award. I should
add that this result is not affected by the fact that this is a full indemnity
costs award. Regardless of the scale of costs awarded, the proper component
parts of a costs award do not change.

[91]

Consequently, in fixing the amount of the full
indemnity costs award in the Al Jazeera action, I have removed the amount
relating to the United Kingdom solicitor.

D.

CONCLUSION

[92]

I would dismiss both appeals. I would allow both
cross-appeals, set aside the costs awards below, and award full indemnity costs
to the respondent, Mr. DeMelle, in the amount of $65,403.99, inclusive of
disbursements and HST, and to the respondent, Al Jazeera, in the amount of $151,741.51,
inclusive of disbursements and HST. The respondents are also entitled to their
costs of the appeals. Having considered the bills of costs filed, I would fix
the costs to Mr. DeMelle in the amount of $15,000, inclusive of
disbursements and HST. I would fix the costs to Al Jazeera in the amount
of $20,000, inclusive of disbursements and HST.

Released: January 28, 2022 E.E.G.

I.V.B. Nordheimer J.A.

I agree. E.E. Gillese J.A.

I agree. Gary Trotter J.A.

[1]
The orders in issue improperly bear two dates. One date relates to
the disposition on the merits and the other to the disposition on costs. There
ought to have been separate orders signed, each bearing the date of the
disposition to which the order related.

[2]

The Narwhal News Society is a British Columbia not-for-profit
entity operating an online news and commentary service. From the record, it
does not appear that it participated in any of these proceedings.