Alberta Adolescent Recovery Centre v. Canadian Broadcasting Corporation, 2012 ABQB 48

Court of Queen ’ s Bench of Alberta Citation: Alberta Adolescent Recovery Centre v. Canadian Broadcasting Corporation, 2012 ABQB 48 Date: 20120119 Docket: 1101 05339 Registry: Calgary Between: Alberta Adolescent Recovery Centre Plaintiff - and - Canadian Broadcasting Corporation, Gillian Findlay, Morris Karp and David Studer Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice S. L.

Martin _______________________________________________________ [ 1 ] The question at the heart of this application in whether Gillian Findlay, Morris Karp and David Studer should be removed as defendants because they did not receive a notice said to be required under the Defamation Act , R.S.A. 2000, c.

D-7. [ 2 ] This apparently simple question is in fact complex and raises fundamental issues concerning if and how the Defamation Act applies to both an initial television broadcast and a television program’s subsequent continuous availability on the internet; the nature of the Plaintiff’s asserted cause of action; whether a proper notice served on a corporation binds the individual employees of the corporation who are also sued in defamation; and whether the service requirements set out in the Act mandate strict compliance or allow substantial compliance.

In the result and for the reasons that follow, I find that these complex issues are best left to trial to be decided after full evidence and argument, and that no

summary disposition removing these three individual Defendants should be made at this time.

Facts [ 3 ] The facts are relatively straightforward and are for the most part agreed. [ 4 ] On February 13, 2009, the Canadian Broadcasting Corporation (CBC) broadcast an episode of the television series, the fifth estate , entitled Powerless .

This Program dealt with a treatment program for adolescents with alleged substance abuse problems, operated by the Alberta Adolescent Recovery Centre (AARC). [ 5 ] Since that time, the Program has also been continuously accessible on the CBC’s website. [ 6 ] Gillian Findlay was a writer and the host of the fifth estate , Morris Karp was a producer and the director of the Program, and David Studer was the executive producer of the fifth estate at the time of the initial television broadcast of the Program. [ 7 ] Prior to the broadcast of the Program, the Plaintiff sent a letter, dated February 6, 2009, to Ms.

Findlay, copied to Mr. Studer, Mr. Karp, and the CBC, documenting its objections to the Program: You have told us the program will contain criticism of our program. We encourage criticism and debate.

However, unfounded allegations of a criminal nature or professional wrongdoing are not acceptable and may result in legal action against you and CBC. [ 8 ] On April 14, 2011, the AARC commenced an action against the CBC and the three individual Defendants claiming that the Program was defamatory to AARC. [ 9 ] The Defamation Act contains certain provisions requiring the giving of notice, which will be presented and discussed in the next section. [ 10 ] It is common ground that sufficient and timely notice was given to the CBC through correspondence sent to the CBC offices in each of Toronto and Ottawa.

This correspondence consisted of two identical cover letters and the same 37 page detailed written Notice of the Plaintiff’s intention to bring an action under s. 13 of the Act . [ 11 ] The cover letters summarized the claims being made by AARC; demanded that the CBC immediately cease internet publication of the Program; and maintain all records relating to the Program.

Included were the following statements: we hereby provide notice that AARC intends to commence civil proceedings in the Province of Alberta against the CBC in connection with both the broadcast of and continuing internet publication of the “Powerless” Program. and [t]his is also to provide formal notice that if internet publication of the CBC broadcast ceases immediately, and if CBC is prepared to immediately commence work with AARC on a “without prejudice” basis to determine if an appropriate retraction and apology can be issued, AARC will not sue CBC, so long as consensus is reached on the retraction and apology. [ 12 ] The individual Defendants were referenced in this correspondence.

For example, the first page of each cover letter sent to the CBC states that:

AARC submits that the entire CBC Broadcast was defamatory to its core business operation, and that the CBC and its involvedproducers, directors, reporters participating in the making of the contents of the broadcast (and the associated and continuing internetpublication of the program) knew or ought to have known that many of its contents were untrue and would subject our client to plain andobvious public odium and contempt. [Emphasis added] [13] However, the Notices and cover letters were not addressed to, or copied to, the individual Defendants by name, although allwere CBC employees at the time of the initial televison broadcast. [14] The only evidence in this application consisted of an affidavit filed by Mr.

Hughes, CBC’s corporate counsel. [15] Mr. Hughes gave evidence that he received the Toronto Notice by e-mail on April 29, 2009. A copy of an e-mail and a letterattached to the email, both from AARC’s counsel, Mr. Stapon, to Mr. Hughes, and both dated April 29, 2009, are attached as an exhibitto Mr. Hughes’ affidavit. The letter from Mr. Stapon requests that Mr. Hughes confirm good service of the notice of intention to bring anaction pursuant to s. 13 of the Alberta Defamation Act. The letter also states the following: AARC is not in the business of litigation.

Its business is the treatment of adolescent drug and alcohol dependency. Despite this, AARChas no choice but to pursue litigation against the CBC and the journalists associated with the “Powerless” broadcast unless anappropriate settlement can be reached. [Emphasis added] [16] Mr. Hughes avers that each individual Defendant told him that he or she was never personally served with a defamationnotice from the Plaintiff in this matter. He also states that none of the individual Defendants were personally served with the TorontoNotice or the Ottawa Notice either by himself or by registered mail. Mr.

Hughes states that at no time was he ever requested to acceptservice on behalf of any entity or person other than the CBC. He further states that none of the individual Defendants work out of theCBC’s Ottawa office, that Mr. Morris Karp is stationed in the CBC’s Winnipeg office, and that Ms. Gillian Findlay and Mr. DavidStuder are stationed in the CBC’s Toronto office. [17] Leaving aside whether

summary dismissal can be granted based on information and belief, what Mr. Hughes does not addressis whether any or all of the three individual Defendants ever received a copy of the Notice in a manner that did not involve personalservice. [18] None of the Defendants swore affidavits about the actual state of their personal knowledge in respect of the Notice given tothe CBC or, for example, whether they attended meetings to discuss what, if any, steps should be taken by all named defendants inresponse to the said Notice. In addition, Mr.

Hughes was not cross examined on his affidavit. [19] The three individual Defendants now seek to be released from the litigation at its earliest stages on the basis that they were notpersonally served with the notice they say is required under the governing legislation. The Defamation Act [20] The Defamation Act alters common law rights in respect of the tort of defamation. The Act provides

definitions, conditions ofapplication and sets out various requirements, including the giving of notice to potential defendants. It is accepted that the purpose ofserving a defamation notice is to allow the intended defendant to correct or withdraw defamatory statements, to allow it to publish anapology before the plaintiff commences an action, and to mitigate or limit damages: Paletta and Palmont Packers Ltd. v. LethbridgeHerald Co. Ltd. (1977), (AB KB), 2 A.R. 529, 2 Alta L.R. (2d) 166 (S.C.T.D.) at para. 9; Grossman v. CFTO-TV Ltd.(1982), (ON CA), 39 O.R. (2d) 498 at 501 (Ont.

C.A.), 139 D.L.R. (3d) 618; Alberta Union of Provincial Employeesv. Edmonton Sun (1986), (AB KB), 75 A.R. 253 (Alta. Q.B.) at para. 87. The notice provisions thus serve importantfunctions and promote overall fairness. [21]

Section 13 of the Act is the notice provision and it does two things. Subsection 1 prohibits an action against a defendant fordefamation unless the plaintiff has served the defendant with a written notice of intention to bring an action within the prescribed timeperiod. Subsection 2 provides the manner in which the notice is to be served:

13(1) No action lies unless the plaintiff has, within 3 months after the publication of the defamatory matter has come to the plaintiff'snotice or knowledge, given to the defendant, in the case of a daily newspaper, 7, and in the case of any other newspaper or when thedefamatory matter was broadcast, 14 days' notice in writing of the plaintiff's intention to bring an action, specifying the defamatorymatter complained of.

(2) The notice shall be served in the same manner as a statement of claim. [22] Section 15(1) of the Act allows a defendant to prove that it has taken steps to mitigate damages in respect of a defamatorymatter inserted in a newspaper or broadcast and states: 15(1) The defendant may prove in mitigation of damages that the defamatory matter was inserted in the newspaper or was broadcastwithout actual malice and without gross negligence, and that before the commencement of the action, or at the earliest opportunityafterwards, the defendant ... (

b) broadcast the retraction and apology from the broadcasting stations from which the alleged defamatory matter was broadcast on atleast 2 occasions on different days and at the same time of day as the alleged defamatory matter was broadcast or at a time as near aspossible to that time. [23] The individual Defendants argue that they did not receive the notice required under s. 13 of the Defamation Act by personalservice, with the result that, according to the precise terms of the operative statute, “no action lies” against them. [24] This argument is at the heart of their application to strike the Plaintiff’s claim against them, under both the Act and Rule 3.68.

Rule 3.68 [25] The general principles governing an application to strike a statement of claim for failure to disclose a cause of action arerelatively settled. While the matter is now governed by Rule 3.68 of the Alberta Rules of Court, Alta. Reg. 124/2010, the test remainswhether it is plain and obvious or beyond a reasonable doubt that the claim cannot succeed. [26] In Donaldson v. Farrell, 2011 ABQB 11 at paras. 9 and 30, Graesser J. held that the new Rule 3.68 and the old Rule 129,Alta.

Reg. 390/1968 were similar and that Rule 3.68 has not modified or lessened the test for striking out pleadings or determiningwhether a pleading discloses a reasonable claim: see also Martin v. General Teamsters, Local Union No. 362, 2011 ABQB 412 at para.6; Reece v. Edmonton (City), 2011 ABCA 238 at para. 14; Wong v. Leung, 2011 ABQB 688 at para. 13. [27] The Alberta Court of Appeal summarized the general requirements for striking pleadings for failing to disclose a cause ofaction in Tottrup v. Lund, 2000 ABCA 121, 186 D.L.R. (4th) 226 at paras. 8-9: [8] ...

In brief, the Court must assume that the allegations of fact made by the plaintiff are true. The Court then determines whether thosefacts disclose a cause of action in law. The test set out by the Supreme Court in Hunt v. Carey Canada Ltd., (SCC), [1990] 2 S.C.R. 959 at 980, 74 D.L.R. (4th) 321, is whether it is “'plain and obvious' that the plaintiff's statement of claim discloses noreasonable cause of action." Caution is required before concluding that the plaintiff has no chance of success. The plaintiff is entitled to abroad reading of the pleadings. ...

In addition, a determination that there is no cause of action on one set of pleadings is generally no barto framing a new action on different facts. [9] Although the pleadings should be liberally interpreted, the Court has a duty to apply the Rule as it is intended. If the alleged facts,

examined in light of the existing law, do not disclose a cause of action the claim should be struck. Needless litigation should be avoided. [28] A pleading is frivolous if it is brought in bad faith or if it is hopeless: Chevalier v. Sunshine Village Corp., 2011 ABQB 544 atpara. 20. In Wong v. Leung, at para. 30, this Court ruled that the test for determining whether pleadings were vexatious under the oldrules is the test to be applied to determine whether pleadings are an abuse of process under the new Rule 3.68.

One such test is whether itis obvious that the claim cannot succeed. [29] The Defendants have the onus of proving that the Plaintiff’s action is bound to fail. The onus is extremely high. In Wanke v.University of Calgary, 2011 ABCA 235 at para. 16, the Alberta Court of Appeal quoted with approval the following passage from Huntv. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959 at 980: [A]ssuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claimdiscloses no reasonable cause of action?

As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should notbe "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potentialfor the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action iscertain to fail because it contains a radical defect ... should the relevant portions of a plaintiff's statement of claim be struck out ... . [30] In Barcan v. Zorkin (1987), 1987 ABCA 122 , 55 Alta.

L.R. (2d) 210 at 211 (C.A.), the Alberta Court of Appealreversed the lower court’s ruling that the plaintiff’s action be struck due to its failure to serve a defamation notice on the defendant. TheCourt ruled that the action should only be struck if it was “bound to fail”. The facts did not clearly establish that the named defendant hadpublished the allegedly defamatory material. The Court ruled that as the statement of claim disclosed a cause of action and the facts werein dispute, it could not conclude that the plaintiff’s action was bound to fail.

Application of Rule 3.68 to the Case at Bar [31] There are many issues arising and argued that illustrate that

summary dismissal is not possible at this preliminary stage in theproceedings. The number and nature of these issues and the contradictory positions advanced by each party highlight just how manyimportant uncertainties exist. The result is that there is nothing plain and obvious about the Plaintiff’s or the Defendants’ potentialsuccess at trial. [32] While I will list five separate issues, in what may be seen as their logical order, it is the fifth issue that operates as theDefendant’s key obstacle to

summary judgment at this stage. The Defendants may succeed in their argument on the first four issues andyet lose the point if they fail on the fifth. On that fifth issue, I conclude that the Defendants have not met the high threshold of provingthat it is plain and obvious that the Plaintiff could not succeed on its claim that substantial compliance with the service requirement maybe both sufficient and present in fact.

I provide no opinion or conclusion on how each of the following five issues should be decided.That is the proper province of a trial judge after all evidence is submitted and full argument heard. [33] The relevant issues include the following. [34] First, does the Defamation Act even apply to the initial television broadcast of the Program?

The Act defines broadcast in amanner that no longer captures the technological reality of modern television transmission, referring as it does to “electromagnetic wavesof frequencies lower than 3000 gigahertz.” The Plaintiff argues that the Act should be read restrictively as it constricts common lawrights and that no notice is required because the Act does not apply. The Defendants call for a purposive, remedial and contextualapproach to the Act so that its policy goals can be maintained in light of changing technology.

In short, the Program was broadcast, evenwithout gigahertz. [35] Second, does the Defamation Act apply to the Program posted to the CBC website and available on the Internet? There aretwo aspects worthy of note. First, does posting the Program on the internet constitute a publication of the Program? Second, if it does,and the publication is defamatory, when does the act of defamation occur - only on the first day it appears on the Internet or every daythat it is available on the Internet?

[36] Third, is this an action in defamation only? The Plaintiff references other clauses in its Statement of Claim which it arguessupport claims in tort for negligent investigation and lack of appropriate due diligence. [37] The Plaintiff acknowledges that there is no currently recognized cause of action for negligent investigation, but submits thatthere is such a tort and such a claim and that this case in fact may be the first one that demonstrates that it is available. The Plaintiffrefers to the recent decision of the Supreme Court of Canada in Grant v.

Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 in which theCourt recognized the defence of “responsible communication on matters of public interest”. The Plaintiff argues that this is new law thathas substantially changed the obligation that previously existed. Prior to Grant, in order to defend an action for defamatory publication,the onus was on the defendant to prove the truth of the contents of the publication. Grant has provided defendants with the additionaldefence of responsible communication on matters of public interest.

The Plaintiff submits that if there is such a defence, there is also acorresponding duty to responsibly and reasonably investigate and report and that a breach of that duty results in a cause of action. [38] The Defendants argue that there is no cause of action for negligent investigation or in the alternative, if there is, the Statementof Claim does not plead it.

The Defendants further argue that if there is such a cause of action and the notice provisions in theDefamation Act do not apply to it, this would completely defeat the purpose for the notice provisions and undermine any protectionafforded to individual employees of corporate entities sued for defamation. They argue that in Grant, the Supreme Court of Canadarecognized that there would be cases where people would have a need for, and society would have an interest in, communications thatmight ultimately prove to be false and this resulted in the Court ruling that this additional defence existed.

It argues that the concept ofnegligent investigation as a cause of action was never put before the Court in Grant. [39] This a developing area of the law. I am not satisfied that the Plaintiff’s statement of claim fails to plead the necessary facts tofound such a cause of action. The foundational principles of negligence law are articulated in Donoghue v. Stevenson, (FOREP), [1932] A.C. 562, namely that a person has a duty of care to conduct himself or herself in such a manner as to avoid harm toothers where a reasonable person would have seen that such harm would occur.

As Lord Atkin declared in Donoghue, the categories ofnegligence are not closed. Where new cases arise, the courts must determine whether, in addition to disclosing foreseeability, thecircumstances disclose sufficient proximity to justify the imposition of liability for negligence. [40] The Statement of Claim alleges that the individual Defendants had a duty of care but were negligent in investigating the factsupon which the Program was based and that there was a lack of appropriate due diligence. The Plaintiff pleads that it suffered damagesas a result.

Assuming that the facts alleged in the Statement of Claim are true, I am not satisfied, given the limited case law andevidentiary record before me, that there is no such cause of action and if there is, that the Plaintiff’s claim is bound to fail. As stated inHunt, supra: [n]either the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strongdefence should prevent the plaintiff from proceeding with his or her case.

Only if the action is certain to fail because it contains a radicaldefect ... should the relevant portions of a plaintiff's statement of claim be struck out ... . [41] Fourth, if the Defamation Act applies, can notice to the employer corporation ever be sufficient notice to the employees whoare also sued personally?

The answer to this question depends upon general principles establishing the separate legal identity of acorporation; how s. 13 of the Act is interpreted; how s. 13 of the Act relates to other sections in the Act, including s. 12 and perhaps s. 15;the public policy considerations about who needs, merits or should receive notice; and the available and apparently dividedjurisprudence, much from jurisdictions with similar but not identical legislative language in their notice provisions. [42] Both the Plaintiff and the Defendants rely upon s. 12 of the Act, which reads: 12 Sections 13 to 17 apply only to actions for defamation against the proprietor or publisher of a newspaper or the owner or operator of abroadcasting station or an officer, servant or employee thereof in respect of defamatory matter published in that newspaper or broadcastfrom that station. [43] This

section sets out when the s. 13 notice is required. Under s, 12, the notice provision in s. 13 is triggered if there is anaction against the CBC or an officer, servant or employee.

Section 13 can be triggered by any such action, or in my view, anycombination of actions.

[44] All that can be said is that s. 12 recognizes that actions can be taken against the broadcaster, its officers, servants and or itsagents.

It provides little guidance on how to interpret s. 13. [45] The Plaintiff argues that s. 13 of the Defamation Act is ambiguous and does not clearly apply to employees of broadcasters. [46] The Defendants argue that the Defamation Act clearly states that a plaintiff must provide a defamation notice to the officers,servants and employees of broadcasters, as well as to the broadcasting entity itself. [47] There is a line of case law, mostly from Ontario, in which the courts have held that when a publishing entity and theemployees of that entity are sued for defamation, both must be served with a defamation notice.

This line of cases is referred to in Brown,The Law of Defamation in Canada, v. 5, loose-leaf, 2d ed. (Toronto: Thomson Reuters Canada, 1999) ch. 17 at 217, in support of theauthor’s conclusion that a defamation notice should be given to all of those who “have some responsibility for the appearance of a libelin a newspaper or broadcast” and that “[t]his certainly includes editors, reporters, columnists and other authors employed directly by thenewspaper or broadcaster.” This was the conclusion in Emonts v.

McKeever, 1992 Carswell Ont 3845 (G.D.) where the Court ruled thatboth newspapers and broadcasters and their employees who are sued for defamation must be given notice as the notice provisions “affordstrict and absolute prescriptive cover to prospective defendants in libel actions.”: see also Boyer v. Toronto Life Publishing Co. (2000), (ON SC), 48 O.R. (3d) 383 (Ont. S.C.J.); and Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), (ON CA), 256 D.L.R. (4th) 407 (Ont.

C.A.). [48] A plain reading of the Defamation Act and an analysis of the foregoing case law suggests that where both the employees of abroadcaster and the broadcaster are sued for defamation, both are entitled to notice.

Section 12 specifically refers to “employees” and canbe interpreted as referring to them as a separate entity from their employers. Both newspaper and broadcasting entities and their officers,servants and employees can be sued and found liable for defamation. The purpose of the notice provisions is to protect defendants whopublish defamatory materials by giving them notice of the plaintiff’s intention to sue and thereby allow them to mitigate their damagesby correcting, apologizing or retracting the publication or broadcast.

Since both broadcasting entities and their employees can beinvolved in, and sued for, defamatory broadcasts, the purpose of the notice provisions is advanced by requiring that both receive notice.The issue is uncertain and it is not my function to decide it, but only to determine whether the uncertainty is strong enough to prevent theDefendants from succeeding on this application. [49] Fifth, if the individual employees must be served separately does the Act require strict compliance with its formalities: i.e.personal service or by recorded mail?

Alternatively, is there scope for a doctrine like substantial compliance, under which the focuswould be on what each employee knew and when, rather than the method by which they received the required information. Suchinformation was not before the court: it was not mentioned in Mr. Hughes’ affidavit and there was no cross-examination on that affidavit. [50] The Defendants argue that the Plaintiff failed to give notice of its intention to sue in accordance with s. 13 of the DefamationAct. First, they say that the Notices were not addressed to the individual Defendants.

Second, they argue that they were note served onthe individual Defendants in accordance with s.13(2) of the Act. Section 13(2) of the Act states that the notice “shall be served in thesame manner as a statement of claim.” Rule 11.5 of the Alberta Rules of Court states that a commencement document “may be served onan individual who is not required to be served by another method under that Division by (

a) being left with the individual, or (

b) beingsent by recorded mail addressed to the individual.” [51] The Plaintiff argues that effective notice is sufficient notice under s. 13 of the Act. It argues that this conclusion accords withthe purpose of the notice provisions, which is to bring a defendant’s attention to the fact that a plaintiff intends to sue for defamation. Itsubmits that the individual Defendants received sufficient notice of the Plaintiff’s intention to sue. [52] There are two apparently opposing lines of authority on this issue.

In one line of cases, the courts have required strictcompliance with defamation notice provisions. [53] In Buro v. Southam Press Limited, (AB KB), [1974] 6 W.W.R. 504 (Alta. S.C., M.C.), the master rejectedthe argument that Southam Press had received sufficient notice, despite the fact that the notice, which was addressed to the CalgaryHerald, would, and in fact did, reach the proper defendant.

[54] In Reis Lighting Products & Services Ltd. v. Westcom Radio Group Ltd. (1996), (MB CA), 113 Man. R.(2d) 129 (Man. C.A.), the Court ruled that where the notice was addressed to the attention of an individual defendant who had receivedit, that service of the notice by registered mail, rather than by personal service, was at most an irregularity. However, it held to thecontrary with regard to service on another individual defendant. [55] In Fegol v. National Post Co, 2008 MBQB 84, 227 Man.

R. (2d) 293, the court struck the plaintiff’s claim against variousindividual Defendants where the notice was to be served on the individuals at their “last known address” and was sent to the individualsby registered or regular mail at the corporate address of the National Post; however, the court also considered the fact that there was noevidence that the said defendants had actually received the notice. [56] In the second line of cases, the courts have taken a more liberal approach, examining circumstances surrounding theprovision of notice to determine whether the plaintiff has substantially complied with the notice requirements. [57] In Knott v.

Telegram Printing Co., Ltd., (SCC), [1917] 3 W.W.R. 335 (S.C.C.), Anglin J., after referring toearlier decisions applying a strict

interpretation to legislative defamation provisions, stated that they appeared “to have been narrowdecisions”. Justice Anglin ruled that the notice was sufficient as it had “reached the defendant company and there is not the slightestroom for question or doubt that it knew that it was intended for it.”: at p. 342. In a separate decision, at p. 339, Justice Idington alsodeclined to follow cases applying a strict

interpretation and ruled that the notice was sufficient since the statute required no particularform but only implied that the notice be sufficient for the persons receiving it to understand that they would be sued for defamation. [58] The Supreme Court’s decision in The Sentinel-Review Company Limited v. Robinson, (SCC), [1928] S.C.R.258, is also often cited as an example of a more liberal approach to the

interpretation of defamation notice requirements. Duff J. foundthat the defamation notice was sufficient stating at 262: Nor can I agree that the notice was not sufficient. The statute prescribes no form. The notice is sufficient, if the plaintiff's intention to sueis notified. The communication must, of course, indicate the intending plaintiff with reasonable certainty.

But that is accomplished whenwords are used which are calculated to apprise the addressee of the identity of the complainant. [59] In the 1982 decision in Grossman, the Ontario Court of Appeal referred to Sentinel-Review and stated at 504-505: An appropriate test to determine whether the notice complaining of a television broadcast is adequate might be as follows: Does thenotice identify the plaintiff and fairly bring home to the publisher the matter complained of?

Since the Act prescribes no particular form,the Court in answering this question can consider all the relevant circumstances. [60] The decision of the Ontario Superior Court of Justice in Boyer, supra, is a more recent example of the court’s use of theexpansive, purposive approach to the

interpretation of a defamation notice provision. The Court ruled that the notice given to thedefendants was sufficient although it was not addressed to all of the individual Defendants and was not served in strict compliance withthe terms of the Ontario Libel and Slander Act, R.S.O. 1990, c. L. 12. [61] In this case the employees of a magazine and the magazine were sued for libel under the Ontario Act, s. 5 of which prescribedthat the defamation notice “be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chiefoffice of the defendant”.

The defamation notice was in letter format addressed to the corporate defendant, Toronto Life, to the attentionof Mr. William Duron, and carbon copied to Macfarlane and Dewar, respectively. Each individual defendant was sent a copy of thenotice in an envelope addressed to Toronto Life but directed to the attention of each. The Defendants acknowledged that the letters werereceived at the offices of Toronto Life and counsel for Toronto Life wrote to counsel for the plaintiff acknowledging receipt of the letteron behalf of Toronto Life.

The court ruled that the notice to the individual Defendants was sufficient. [62] The Court held that there was nothing in the defamation notice provisions that said the notice be "directed" to the defendant.It simply required that notice be given. The Court recognized that its conclusion conflicted with the findings in Reis, but declined tofollow it. The Court preferred the more expansive approach taken in Knott and Grossman, stating at paras. 18- 20:

18 ... None of the defendants have suggested that they did not receive notice or were unaware of the complaint of the plaintiff . It is also clear that the purpose of the section, which all of the authorities seem to agree is to provide the opportunity to correct, retract or apologize, was satisfied since a correction or clarification was offered by the solicitors for Toronto Life. ... 20 ...

In the end result, however, my view of this matter may be adequately summarized by paraphrasing the observation of Anglin, J. in Knott : The notices reached the defendants and there is not the slightest room for question or doubt that they knew that those notices were intended for them . [Emphasis added] [ 63 ] The Court ruled that one option was to give the notice provisions a literal

interpretation leading to the conclusion that only corporate defendants could be served by delivering the notice to a person at the chief office of the defendant. It characterized this as an extremely technical and unfair result. The court preferred the second option, which was to interpret the

section as meaning that service on all defendants “can be effected through the chief office of a corporate defendant publisher assuming there is a legitimate reason to believe that there is a connection between the corporate publisher and the individual Defendants.” [ 64 ] The foregoing cases support the view that there is scope for a doctrine of substantial compliance with the notice provisions under the Defamation Act , especially in relation to the method by which actual notice is effected. [ 65 ] Applying a doctrine of substantial compliance, the first issue is whether the Notices were sufficient although they were not addressed to each of the individual Defendants.

As many of the foregoing cases have noted, no form of notice is required. The wording of s. 13 of the Alberta Defamation Act does not require that the notice be “directed” to the defendant, but only that the defendant be given notice. Although the cover letter was not addressed to the individual Defendants, they are individually named in the Detailed Defamation Notice attached to the cover letter.

In addition, the first page of the cover letter does refer to the categories of defendants that AARC alleges were involved in the broadcast stating that: AARC submits that the entire CBC Broadcast was defamatory to its core business operation, and that the CBC and its involved producers, directors, reporters participating in the making of the contents of the broadcast ...knew or ought to have known that many of its contents were untrue and would subject our client to plain and obvious public odium and contempt. [Emphasis added] [ 66 ] The second issue is whether it was necessary for the Plaintiff to personally serve the individual Defendants with a copy of the Defamation Notice in order for the notice to be sufficient in relation to them.

Section 13(2) of the Alberta Act states that the “notice shall be served in the same manner as a statement of claim.” Rule 11.5 states that service of a commencement document may be made by “being left with the individual, or being sent by recorded mail addressed to the individual.” On a purely literal

interpretation, the fact that Rule 11.5 provides two methods by which service “may” be made leaves open the possibility that a defamation notice may be served in some other fashion. [ 67 ] More importantly, the line of cases applying a more liberal

interpretation to defamation notice provisions indicates that if the defendant is given effective notice of the plaintiff’s intention to sue, strict compliance with the method of the notice provisions is not necessary. The purpose of the notice provisions is to ensure that a defendant is made aware of the defamatory matter complained of in enough specificity to allow it to determine whether an apology or retraction should be published or broadcast.

In both Knott and Boyer , the courts ruled that the notices were sufficient if they “reached the defendants” and there was “not the slightest room for question or doubt that [the defendants] knew that those notices were intended for them.” [ 68 ] This issue turns on whether and if so, when and how, the individual Defendants became aware of the allegations made against them and the Plaintiff’s intention to sue them. I do not have sufficient facts before me to determine that it is plain and obvious that the Plaintiff could not establish substantial reliance on the facts.

The Plaintiff acknowledges that the individual Defendants were not

personally served with the Notices and Mr. Hughes swears that he did not personally serve them or accept service on their behalf. However, there is no evidence as to whether the individual Defendants were given copies of the Notices by others at the CBC or received notice in some other fashion. [ 69 ] For example, Mr. Stapon’s letter to Mr. Hughes, received by Mr. Hughes on April 29, 2009, warns that “AARC has no choice but to pursue litigation against the CBC and the journalists associated with the “Powerless ” broadcast unless an appropriate settlement can be reached” [emphasis added]. Mr.

Hughes states in his affidavit that the Toronto Notice was forwarded to the President of CBC. The individual Defendants are named in the Detailed Defamation Notice and their alleged involvement in the matters complained of is set out at some length in that Notice. The evidence does not address whether the individual Defendants received a copy of the Notices at the time or soon after they were received by the CBC.

If the Notices reached the individual Defendants within three months after the defamatory matter came to the Plaintiff’s notice or knowledge, there is no room for question or doubt that they would have known that those Notices were intended for them. [ 70 ] There are two parts to s. 13 . Under s. 13(1), no action lies unless the defendant has been given notice in writing of the plaintiff’s intention to bring an action, specifying the defamatory matter complained.

Section 13(2) outlines how that notice is to be brought to the attention of the defendant: being service in the same manner as a statement of claim. [ 71 ] Assuming, without deciding, that the s. 13 notice must be given to employees as well as the corporation, the question remains as to how employees may come to learn of the matter. Section 13(2) provides a mechanism. Is it the only one or is substantial compliance sufficient? [ 72 ] The case law is somewhat unsettled and sometimes addresses slightly different factual issues.

However, one theme emerges: the courts will not allow a technical requirement to overtake the realities of the situation. [ 73 ] In the case at bar, it is not plain and obvious that the Plaintiffs will fail on their substantial compliance argument. As the law probably permits substantial compliance, the absence of any evidence about what the individual Defendants actually knew about the Notice means there is a gap in the Defendants’ evidentiary foundation for

summary dismissal. [ 74 ] In my view, it is incumbent on the Defendants to establish facts on which it can be clearly argued that substantial compliance is not available to the Plaintiffs. It is not for the Plaintiffs to establish through cross examination what the individual Defendants may have known: the individual Defendants did not swear affidavits and any cross examination of Mr.

Hughes would involve questions of limited utility: his responses would involve hearsay and information and belief. [ 75 ] The Defendant’s motion to strike the Plaintiff’s statement of claim against the individual Defendants is denied. Heard on the 8 th and 10 th day of November, 2011. Dated at the City of Calgary, Alberta this 19 th day of January, 2012. S.L. Martin J.C.Q.B.A.

Appearances: Grant Stapon, Q.C. for the Plaintiff, Alberta Adolescent Recovery Centre Fred Kozak, Q.C. and Matthew Woodley for the Defendants, Canadian Broadcasting Corporation, et al.