|
B E T W E E N : |
|
|
JOSEPH LEO ROMANO |
Howard W. Winkler |
|
- and - |
|
|
VINCENZO D’ONOFRIO
and 1030692 ONTARIO LIMITED, carrying on business as the MINTURNO SOCIAL
CLUB |
Allan D. Powell |
|
Heard: September 14, 2005 |
|
FELDMAN J.A.:
[1] The appellant appeals the dismissal of his libel and slander action on a motion for summary judgment.
[2] In November 2001 the appellant was a third year law student at Osgoode Hall Law School and a member of the Minturo Social Club, an Italian club. On November 11, 2001 the club held its annual general meeting at a banquet hall where approximately 150 to 200 people attended. At this meeting the appellant rose to address an issue that had been raised when the president of the club, the respondent D’Onofrio, is alleged to have said into the microphone:
You can’t speak, you’re not a member, you can’t speak, go sit down.
The appellant then returned to his seat and, as he did so, the respondent D’Onofrio allegedly said:
He is just a troublemaker and he only came here to cause trouble and confusion, like he always does. This young person is a liar. He tells lies to violently piss people off [English translation of Italian].
[3] The appellant brought an action for libel, slander and intentional infliction of mental suffering. Following discoveries, the respondents moved for summary judgment admitting for the purpose of the motion that the impugned words were spoken as alleged. The motion judge dismissed the claims for libel and slander on the following grounds:
(1) The alleged defamatory actions are not libel because they do not constitute a “broadcast” under s. 1(b) of the Libel and Slander Act, R.S.O. 1990, c. L.12.
(2) The action cannot succeed as slander per se under s. 16 of the Act because the appellant was not a lawyer at the time.
(3) The action cannot succeed as slander because the appellant led no evidence of special damage.
[4] If the action is a claim for libel as opposed to slander, then damages are at large and no special damage need be alleged or proved.
[5] Libel is defined in s. 2 of the Libel and Slander Act to include a “broadcast”, which is defined in s. 1(b) as “the dissemination of…sounds of all kinds, intended to be received by the public either directly or through the medium of relay stations, by means of, cables, wires, fibre-optic linkages or laser beams”.
[6] It was agreed that the microphone and loudspeaker used by the respondent used wires and cables. The motion judge determined, as a question of law, whether a microphone and loudspeaker that used wires and cables constituted a broadcast within the meaning of the Act, and therefore a libel. He concluded that at common law, using a microphone to amplify sound constituted slander; the words of the Act were not clear enough to change the common law to make that use libel; and when the definition of broadcast was amended to include wires or cables, the stated intent of the legislature was to include cable television, not words spoken into a microphone at a meeting.
[7] In our view, the motion judge erred by deciding a significant question of law involving the definitive interpretation of a section of the Libel and Slander Act in the context of a Rule 20 motion. This was not a case where the law was settled and could be applied to admitted facts. The scope of the term “broadcast” in the Libel and Slander Act has not been conclusively determined in the case law. As this court stated in R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 5 O.R. (3d) 778 at 782: “Matters of law which have not been settled fully in our jurisprudence should not be disposed of at this [interlocutory] stage of the proceedings.” See also Bendix Foreign Exchange Corp. v. Integrated Payment Systems Canada Inc., [2005] O.J. No. 2241 at para. 6 (C.A.) and Jane Doe 1 v. Manitoba, [2005] M.J. No. 335 at paras. 19-23 (C.A.).
[8] The decision whether words spoken at a public gathering into a microphone constitutes libel or slander under the Act is both novel and significant and involves an analysis not only of the microphone technology and perhaps other technologies for comparison and context, but also the policy behind the distinction between libel and slander under the Act.
[9] That type of interpretive analysis should only be done in the context of a full factual record, possibly including appropriate expert evidence: Spasic Estate v. Imperial Tobacco Ltd. (2000), 49 O.R. (3d) 699 at paras. 22-23 (C.A.), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 547; see also Law Society of Upper Canada v. Ernst & Young (2003), 65 O.R. (3d) 577 at para. 50 (C.A.), leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 358. The sketchy evidence put forward by the respondents was insufficient to discharge its onus to demonstrate that this could not be a broadcast.
[10] Under s. 16 of the Act, a plaintiff need not prove special damage if the words spoken are calculated to disparage the person in “any office, profession, calling, trade or business held or carried on by the plaintiff at the time of the publication”.
[11] The motion judge concluded that the section required the person to be a lawyer at the time. He found that that as a third year law student who would not be a member of the Law Society for another nineteen months, the appellant was neither engaged nor about to be engaged in the practise of law.
[12] Again, as this finding required the motion judge to determine a novel question of law and apply it to the facts of the case, such a determination should not be made without a full factual record and findings of fact made by a trier of fact on that record. For example, there was evidence that as a result of this event, the appellant withdrew from the Italian social club and was unable to capitalize on his community affiliations in establishing his legal practice.
[13] We agree with the appellant that there was some evidence on the record that could constitute special damage and therefore preclude the dismissal of the action for slander on a motion for summary judgment. That evidence was (1) the assertion that the appellant was essentially forced to withdraw from the Italian social club causing him serious social hardship as well as business hardship, and (2) the evidence of mental suffering put forward primarily for the claim of intentional infliction of mental suffering.
[14] The claim for slander should therefore not have been dismissed.
[15] The order granting summary judgment to the respondents with respect to the appellant’s actions for libel and slander is set aside and the actions may proceed to trial. Costs of the appeal are payable to the appellant fixed at $12,000. Counsel may make written submissions on the costs of the motion within one week of release of these reasons advising the court of their position or agreement.
Signed: “K. Feldman J.A.”
“I agree J.L. Laskin J.A.”
“I agree S.T. Goudge J.A.”
RELEASED:“JL”
November 23, 2005