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EXTRAORDINARY REMEDIES - Certiorari

Friday, April 28, 2017 @ 8:30 AM  


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Appeal by the Canadian Broadcasting Corporation (CBC) and several of its staff members from the dismissal of their certiorari application with respect to a Provincial Court judge’s decision to issue summonses requiring them to answer charges of publishing a defamatory libel and publishing a defamatory libel known to be false. The private prosecution related to an episode of the fifth estate television program about Nygard, a businessman in the fashion industry. The central theme of the episode was that Nygard’s carefully crafted image could be a distortion of reality based on allegations that he frequently mistreated his staff and engaged in sexually inappropriate conduct with his staff and others. Lawyers for Nygard hired an investigator who discovered that the allegations were made as part of a long-standing feud between Nygard and his neighbour in the Bahamas, Bacon. A pre-enquete hearing was held, following which the summonses were issued against CBC and its staff member. They moved, unsuccessfully, for a writ of certiorari to quash the decision to issue the summonses, as they were unable to convince the reviewing judge that the Provincial Court judge committed a jurisdictional error.

HELD: Appeal dismissed. The broadcast of the episode with the defamatory content about Nygard constituted the actus reus of libel and was not merely slanderous, given the permanent nature of a television broadcast that was aired more than once and that could be accessed on the CBC’s website. There was therefore some evidence before the Provincial Court judge that a defamatory libel relating to Nygard was published by CBC and its staff. The Provincial Court judge committed no jurisdictional error by considering the evidence of Nygard’s investigator about what the CBC and its staff knew about the veracity of the allegations against Nygard prior to broadcasting the episode. Whether or not such evidence constituted hearsay was not relevant to the appeal because it was not a jurisdictional issue. The reviewing judge applied the correct standard at the certiorari review by examining the Provincial Court judge’s decision for jurisdictional, not legal, error.

Canadian Broadcasting Corp. v. Morrison, [2017] M.J. No. 95, Manitoba Court of Appeal, M.A. Monnin, F.M. Steel and C.J. Mainella JJ.A., April 7, 2017. TLD-Apr242017011