Top 5 Civil Appeals (July 2012)

Baglow v. Smith, 2012 ONCA 407 (Goudge, Sharpe and Blair JJ.A.), June 14, 2012 Bowes v. Goss Power Products Ltd., 2012 ONCA 425 (Winkler C.J.O., Simmons, Cronk, Armstrong and Watt JJ.A.), June 21, 2012 Galganov v. Russell (Township), 2012 ONCA 410 (Weiler, Sharpe and Blair JJ.A.), June 15, 2012 Fresco v. Canadian Imperial Bank of Commerce, 2012 ONCA 444 (Winkler C.J.O., Lang and Watt JJ.A.), June 26, 2012 Windsor (City) v. Paciorka Leaseholds Limited, 2012 ONCA 431 (Doherty and LaForme JJ.A., and Turnbull J. (ad hoc)), June 22, 2012 1. Baglow v. Smith, 2012 ONCA 407 (Goudge, Sharpe and Blair JJ.A.), June 14, 2012 This appeal applies the new test for summary judgment to the issue of defamation in the context of political blogging. In the course of an exchange concerning Omar Khadr between the appellant John Baglow (blogging under the pseudonym, "Dr. Dawg") and the respondent, Roger Smith, Smith referred to Baglow as "one of the Taliban's more vocal supporters." Baglow sued for defamation. On a motion for summary judgment, Justice Annis dismissed Baglow's claim against Smith for defamation, finding that there was no genuine issue for trial as to whether the impugned statement was defamatory. Baglow appealed to the Court of Appeal. Writing for the court, Blair J.A. held that the motion judge erred in the finding that there was no genuine issue for trial and noted specifically that this was not a case appropriate for summary judgment. As Blair J.A. explained, summary judgment has historically rarely been granted in defamation cases, in part because the question of whether a statement is defamatory has long been considered to be in the purview of a trier of fact. The motion judge nonetheless concluded that it was appropriate to grant summary judgment, principally because "the factual foundation of the case is largely captured in the extensive materials taken from the parties' blogs" and because "there seems little in dispute of a factual nature that would be different were [the case] to proceed to trial." Blair J.A. disagreed with this conclusion, holding that while the motion judge did have an extensive record before him in the form of the exchanges between the parties, it was not sufficient to make a proper determination. Determining whether the impugned statement is in fact defamatory of the appellant would require a careful analysis of the context in which the statement was made, including not just a review of the electronic dialogue between the parties but also an assessment of the two individuals and the view they took of the exchange. The latter would at least require cross-examination on the positions they initially put forward, which was not possible on the motion as the matter had proceeded under rule 76, Simplified Procedure, which does not permit cross-examinations on affidavits. The analysis further requires a consideration of the view that a reasonable reader of the exchange might take of the exchange in its particular context, an issue that might require expert testimony concerning the expectations and understanding of participants in political discourse in the Internet blogosphere. The unique nature of the forum in which the alleged defamation occurred raised issues that must be threshed out at trial. Blair J.A. further noted that this dispute concerned a scenario that has, thus far, received little judicial consideration, namely an allegedly defamatory statement made in the course of "a robust and free-wheeling exchange of political views in the internet blogging world." Although both parties had suggested that "anything goes" in exchanges laden with often caustic, hyperbolic and vulgar language, Blair J.A. questioned: "Is that the case in law?... Do different legal considerations apply in determining whether a statement is or is not defamatory in these kinds of situations than apply to the publication of an article in a traditional media outlet?" As Blair J.A. noted, these issues have not been addressed in the jurisprudence in any significant way. Their responses may have far-reaching implications, and are best crafted on the basis of a full record after a trial, "at least until the law evolves and crystallizes to a certain point." A trial would allow these conclusions to be formulated on the basis of a record informed by the examination and cross-examination of witnesses and possibly with the assistance of expert evidence to provide the court with insight into how the Internet blogging world functions and what may or may not be the expectations and sensibilities of those who engage in such discourse. The court allowed the appeal, directing the action to proceed to trial. 2. Bowes v. Goss Power Products Ltd., 2012 ONCA 425 (Winkler C.J.O., Simmons, Cronk, Armstrong and Watt JJ.A.), June 21, 2012 On this appeal, the Court of Appeal – in a five member panel – held that an employee who is terminated without cause is not required to mitigate his loss when the parties contractually agreed to a fixed term of notice...