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DISPOSITION WITHOUT TRIAL - Frivolous, vexatious or abuse of process

Thursday, March 28, 2019 @ 8:35 AM  


Lexis Advance® Quicklaw®
Appeal by the plaintiff from a decision dismissing the plaintiff’s action on the ground that it was brought to silence the respondents on matters of significant public importance. The respondents had published a series of articles about the appellant’s successful bid on a $300 million contract to build a new hospital wing. The articles addressed the connection between the appellant’s president and a senior hospital executive who was on the committee that awarded the construction contract. The appellant claimed the articles falsely alleged a corrupt connection between its president and the hospital executive that had played a role in the appellant obtaining the contract. The respondents relied on fair comment and responsible communication.

HELD: Appeal allowed. The motion judge erred in law when placing the onus on the appellant to show that the respondents had no valid defence whatsoever rather than that a reasonable trier could conclude that the respondents did not have a valid defence. Had the motions judge addressed the correct test, he would have found that the appellant had met its onus to show grounds to believe that the respondents had no valid defence. The appellant had a legitimate argument that it had been defamed and suffered significant damages because of the respondents’ articles. There was nothing in this record that could reasonably suggest that the respondents were motivated by anything other than a desire to inform the public about the facts their investigation had revealed. The articles were devoid of deliberate falsehoods, hyperbole, gratuitous personal attacks, or other similar characteristics that would diminish the public interest in protecting the expression. This litigation constituted a genuine controversy and should be tried on its merits.

Bondfield Construction Co. v. Globe and Mail Inc., [2019] O.J. No. 1086, Ontario Court of Appeal, D.H. Doherty, G.I. Pardu and I.V.B. Nordheimer JJ.A., March 4, 2019. Digest No. TLD-March252019007