2013 QCCS 5087, 2013 QCCS 5087

Mazhero c.

CBC Radio Canada 2013 QCCS 5087 JD 2232 SUPERIOR COURT CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL N° : 500-17-071464-120 DATE : February 22, 2013 ______________________________________________________________________ PRESENT : THE HONOURABLE MARC DE WEVER, J.S.C. ______________________________________________________________________ FRANCIS MAZHERO Plaintiff vs CBC RADIO CANADA and MICROSOFT CORPORATION and BELL CANADA and NEW ZIMBABWE MEDIA LTD Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is claiming 12 000 000 $ from the defendants alleging that he was defamed under the following circumstances : « 22.

On April 14, 2011, Defendant CBC posted an

article about the Plaintiff on the Internet entitled, Federal court bans man for frivolous law suits , which was republished by Defendants Bell and Microsoft, as more fully appears from three copies of the said article, communicated en liasse in support hereof as Exhibit P​6; 23.

On April 15, 2011 and May 23, 2011, Defendant New Zimbabwe Media Ltd. posted two articles about the Plaintiff on the Internet entitled, ‘ Serial litigant’ banned from Canada court , and ‘ Serial litigant’ back in Canada courts , respectively, as more fully set out in the said articles, copies of which are communicated en liasse in support hereof as Exhibit P-7; » [1] [ 2 ] The defendants posted these articles after judgment was rendered on March 30, 2011 by Madam Justice Tremblay-Lamer in the case of Francis Mazhero vs Andrew Fox et al . [2] Where the Court barred plaintiff from bringing any further proceedings in the Federal Court except with leave of the Court [3] . [ 3 ] The present matter was initially scheduled for trial on the merits for two days on November 13 and 14, 2012. [ 4 ] On November 14, 2012, Madam Justice Carol Cohen granted a postponement and fixed the hearing peremptorily for four days on February 4, 5, 6 and 7, 2013. [ 5 ] On February 4, 2013, the plaintiff again asked for a postponement alleging that he had appealed the judgment of November 14, 2012 of Madam Justice Cohen. [ 6 ] The Court refused this request. [ 7 ] Plaintiff then indicated his intention to appeal this refusal. [ 8 ] Consequently, the Court indicated to plaintiff that it was suspending the hearing until the next day in order for plaintiff to prepare its motion seeking leave to appeal the Court’s decision refusing the postponement.

The Court asked plaintiff and the attorneys representing defendants CBC Radio Canada, Microsoft Corporation and Bell Canada to report back to the Court on February 5, 2013 as to whether or not such a motion had been filed. [ 9 ] Plaintiff never reported back to the Court but merely forwarded on February 5, 2013 a letter dated February 4 th .

[ 10 ] On February 5, 2013, the attorneys for defendants CBC Radio Canada and Microsoft Corporation served on plaintiff a Notice of Continuing Trial stating : « Be advised that the trial on the merits in the present court file and the Motion by defendants, CBC Radio Canada and Microsoft Corporation, to Declare plaintiff’s Motion to Institute Proceedings Abusive and to Declare Plaintiff a Vexatious Litigant will continue on Wednesday February 6, 2013 at 9:15 a.m. in room 16.02 of the Montreal Courthouse located at 1, rue Notre-Dame Est; in Montreal (Québec) H2Y 1B6, before the Honourable Marc De Wever, J.S.C. » [ 11 ] On February 6, 2013, the trial resumed. [ 12 ] The plaintiff although duly called three times throughout the Courthouse never appeared before the Court. [ 13 ] The attorneys for defendants CBC Radio Canada, Microsoft Corporation and Bell Canada asked the Court to proceed on the Notice of Continuing Trial, which request was granted by the Court.

I PRELIMINARY MOTIONS A - Plaintiff’s Inscription for judgment by default to appear against defendant Microsoft Corporation (dated August 6, 2012) [ 14 ] On August 7, 2012, plaintiff filed in the Court’s record an Inscription for judgment by default to appear against defendant Microsoft Corporation. [ 15 ] The law firm of Osler Hoskin & Harcourt did in fact file an appearance on behalf of Microsoft Corporation on May 7, 2012.

Yet, plaintiff alleges that this appearance was irregularly filed since more than 10 days had elapsed after service of the Motion to institute proceedings on Microsoft Corporation. [ 16 ] When contesting plaintiff’s motion for judgment by default, the attorneys for Microsoft Corporation stated that the actual date of service of the Motion to institute proceedings was April 30, 2012. [ 17 ] Consequently, the appearance filed by Osler Hoskin & Harcourt on behalf of Microsoft Corporation on May 7, 2012 was legally filed within the prescribed period. [ 18 ] On May 25, 2012 the firm of Spiegel Sohmer inc. substituted to Osler Hoskin & Harcourt as attorneys for Microsoft Corporation [ 19 ] This substitution of attorneys is valid.

The Court notes that

article 253 C.p.c . provides that such a substitution can be done, without the authorization of the judge or a clerk, unless a party, in this case plaintiff, expresses its opposition in writing.

No such opposition occurred in the present file. [ 20 ] Also on May 25, 2012, plaintiff signed, concurrently with the attorneys for Microsoft Corporation, the « Déclaration commune pour fixation d’une audience avec enquête et argumentation de plus de deux heures », thus confirming that he had made no valid opposition to either the initial appearance by Osler Hoskin & Harcourt on May 7, 2012 nor the substitution by the firm of Spiegel Sohmer inc. on May 25, 2012. [ 21 ] Finally, the Court is of the opinion that, in any event, plaintiff did not suffer any prejudice regarding this question of the filling of an appearance on behalf of defendant Microsoft Corporation. [ 22 ] The Court concludes that the Inscription for judgment by default to appear against defendant Microsoft Corporation must be dismissed.

B- Plaintiff’s Motion to impose sanctions against defendants CBC Radio Canada and Microsoft Corporation for improper use of procedure (dated September 12, 2012) [ 23 ] In order to rule on this Motion, the Court will refer to the various conclusions found in the Motion.

Conclusions 2 and 3 : « DECLARE that appearance filed by Me Silvana Conte of the law firm Osler, Hoskin & Harcourt LLP on behalf of Defendant Microsoft Corporation was not validly filed; DECLARE that the substitution of Spiegel Sohmer inc. in the place of Osler, Hoskin & Harcourt LLP as attorneys of Microsoft Corporation did not comply with Art. 253 C.C.P . in that it was not authorized by the Court; » [ 24 ] The Court as already dealt with these two conclusions in the previous section. Conclusions 4 and 5: « ORDER each of Defendants CBC Radio Canada and Microsoft Corporation to disclose the name(

s) of the reporter (

s) who wrote the story entitled, “ Federal court bans man for frivolous law suits ”, that they posted on the Internet on April 14, 2011; ORDER Defendant CBC Radio Canada to undertake the following: • Disclose the name of its syndication partners and subscribers who published or republished the

article headed, “ Federal court bans man for frivolous law suits ”;

• Produce transcripts of interviews conducted by Defendant CBC with the Plaintiff in Vancouver and Whitehorse in June or July 1998 and March 2000, respectively; • Produce transcript of the unreported proceeding held on March 1, 2000, before Yukon Territorial Court, which resulted in the decision in R . v.

Mazhero , Yukon Territorial Court, File No. 99-00828 ; ORDER this party Canada Post to produce its investigation report regarding the delay in the delivery of the demand letter to CBC Radio as well as CDs and transcripts of its employees’ telephone conversations with the Plaintiff concerning same; » [ 25 ] The Court is of the opinion that these requests are not pertinent or relevant to the proceedings as instituted by plaintiff. [ 26 ] The same holds true for the other conclusions in the Motion. [ 27 ] The Court concludes that this Motion must be dismissed.

C- Plaintiff’s Motion for order of production of documents (dated November 5, 2012) [ 28 ] This Motion was originally dismissed by Mr Justice de Grandpré on November 8, 2012.

Plaintiff appealed this judgment and defendants, CBC Radio Canada and Microsoft Corporation, desisted from the judgment at the time of the hearing before the Appeal Court. [ 29 ] The Court notes that many requests for information or production of documents found in this Motion are identical to what was requested by plaintiff in the previously discussed Motion. (see paragraph 23 and following) [ 30 ] Again, the Court concludes that these requests are not pertinent or relevant to the Motion to institute proceedings filed by plaintiff. [ 31 ] This Motion must also be dismissed.

D- Plaintiff’s Motion to impose sanctions against defendant Bell Canada for improper use of procedure (dated August 17, 2012). [ 32 ] Plaintiff filed this Motion as a result of the following events. [ 33 ] The Motion to institute proceedings was served on Bell Canada on April 17, 2012.

The Motion was returnable on May 8, 2012 (exhibit DB-2). [ 34 ] The law firm of Beaudin & Associés filed an appearance on behalf of Bell Canada on April 19, 2012. [ 35 ] The law firm of Borden Ladner Gervais substituted as attorneys for Bell Canada on April 27, 2012. [ 36 ] They asked plaintiff to provide them with a copy of the exhibits alleged in the Motion to institute proceedings. [ 37 ] Plaintiff forwarded a copy of the exhibits but also his Motion to institute proceedings with a new date for its presentation, May 25 instead of May 8, 2012. [ 38 ] Me Stéphane Richer, Bell Canada’s attorney, admits not having seen this new date of May 25, 2012. [ 39 ] On May 8, 2012, Bell Canada’s attorneys attended at Court but saw that plaintiff’s Motion to institute proceedings was not on the roll. [ 40 ] Subsequently, on May 25, 2012, Bell Canada’s attorneys were not present at Court. [ 41 ] Bell Canada’s attorneys were made aware of the proceedings that took place on May 25, 2012 when they received plaintiff’s Motion seeking leave to appeal the decision rendered by Mr Justice Michel Déziel on May 25, 2012. [ 42 ] Me Stéphane Richer than wrote to Mr Justice Déziel on July 4, 2012 to explain why he was not present at Court on May 25, 2012. [ 43 ] In his letter of July 4, 2012, Me Richer also specified Bell Canada’s oral grounds of defence against the proceedings instituted by plaintiff. [ 44 ] Me Richer admits that, by oversight, he did not forward a copy of this letter of July 4, 2012 to plaintiff. [ 45 ] After eventually taking cognizance of this letter, plaintiff filed this Motion to impose sanctions against defendant Bell Canada for improper use of procedure, which Motion also seeks to have Bell Canada declared foreclosed from pleading. [ 46 ] Furthermore, on August 7, 2012, plaintiff filed an Inscription for judgment by default of pleading against Bell Canada. [ 47 ] To correct his oversight to forward copy of his letter of July 4, 2012 to plaintiff, Me Richer wrote him on August 8, 2012. [ 48 ] The Court is of the opinion that there was no improper use of procedure on the part of Bell Canada and/or its attorneys when the later forwarded to Mr Justice Déziel their letter of July 4, 2012. [ 49 ] At no time was any prejudice caused to plaintiff. [ 50 ] This Motion by plaintiff must be dismissed.

[51] Therefore, the Court believes that the Motion by Bell Canada’s attorneys on February 6, 2012, to be relieved of their default toplead, was superfluous and will be continued sine die. E- Plaintiff’s Motion for leave to put transcripts, exhibits and a CD before the trial judge in support of motion to impose sanctionsagainst defendant Bell Canada for improper use of procedure (dated November 4, 2012). [52] This Motion was initially dismissed by Mr Justice de Grandpré on November 8, 2012. [53] Plaintiff filed a motion seeking leave to appeal this judgment.

When the matter was pleaded in the Court of Appeal, theattorneys for Bell desisted from the judgment. [54] Before the Court, Bell Canada’s attorneys did not contest conclusion B(

i) and (ii). [55] As regards conclusions C to F, the Court is of the opinion that these requests are not pertinent or relevant to the proceedings andshould be dismissed. II PLAINTIFF’S MOTION TO INSTITUTE PROCEEDINGS [56] The Court now turns to the question of the merit of plaintiff’s Motion to institute proceedings. Claim against defendants CBC Radio Canada, Microsoft Corporation and Bell Canada [57] As stated before, plaintiff maintains that he was defamed when defendant CBC Radio Canada posted an

article on the Internetentitled Federal Court bans man for frivolous law suits which was republished by defendants Bell Canada and Microsoft Corporation(exhibit P-6). [58] Defendants have filed the Reasons for Order and the Order rendered on March 30, 2011 by Madam Justice Tremblay-Lamer(exhibit DB-1) on which the

article posted by defendant CBC Radio Canada and republished by defendants Bell Canada and MicrosoftCorporation is based. [59] The Court notes that the

article summarizes precisely and correctly the Reasons for Order by Madam Justice Tremblay-Lamer. [60] Organizations such as CBC Radio Canada, Bell Canada and Microsoft Corporation are entitled to report on judgments renderedby Courts. [61] In the Supreme Court decision of Edmonton Journal v. Alberta (Attorney General)[4], Mr Justice Cory writes : « There can be no doubt that the courts play an important role in any democratic society. They are the forum not only for the resolutionof disputes between citizens, but for the resolution of disputes between the citizens and the state in all its manifestations.

The morecomplex society becomes, the more important becomes the function of the courts. As a result of their significance, the courts must beopen to public scrutiny and to public criticism of their operation by the public. … In Canada this Court has emphasized the importance of the public scrutiny of the courts. It was put in this way by Dickson J., as he thenwas, writing for the majority in Attorney General of Nova Scotia v. MacIntyre, (SCC), [1982] 1 S.C.R. 175, at p. 185 : Many times it has been urged that the ‘privacy’ of litigants requires that the public be excluded from court proceedings.

It is now wellestablished, however, that covertness is the exception and openness the rule. Public confidence in the integrity of the court system andunderstanding of the administration of justice are thereby fostered. As a general rule the sensibilities of the individuals involved are nobasis for exclusion of the public from judicial proceedings. The following comments of Laurence J. in R. v. Wright, 8 T.R. 293, areapposite and were cited with approval by Duff J. in Gazette Printing Co. v.

Shallow (1909), (SCC), 41 S.C.R. 339 at p.359 : Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vastimportance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country inhaving these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be thesubject of such proceedings. … It can be seen that freedom of expression is of fundamental importance to a democratic society.

It is also essential to a democracy andcrucial to the rule of law that the courts are seen to function openly. The press must be free to comment upon court proceedings toensure that the courts are, in fact, seen by all to operate openly in the penetrating light of public scrutiny. » [62] In the case of Le Temple du réveil miraculeux du Saint-Esprit Inc. c.

Le Journal de Montréal, Mr Justice Gendreau of theAppeal Court writes[5] : « [17] Il convient d’abord de rappeler que l’article de monsieur Morissette n’est pas le résultat d’une enquête conduite par unjournaliste, mais un reportage sur un jugement de la Cour supérieure confirmé en appel. Or, la relation dans la presse des procédures etdes séances des tribunaux sont essentiels à la préservation du principe de la publicité et de la transparence des débats et des activitésjudiciaires. [18] Les principes de la responsabilité civile à l’occasion de la diffamation par un journal et l’immunité créée par la

Loi sur la presseà l’endroit des reportages faits à l’occasion de procédures judiciaires ont récemment été rappelés par ma collègue, la juge Thibault, dans

Québécor c. Cimon . Je m’en remets à ses propos : a> sur la règle générale : Tout procès en diffamation oppose ces deux droits : le droit au respect de la réputation et le droit à la liberté d’expression. Pour les concilier, le droit a développé certains principes et outils. En général, la responsabilité du journaliste ou des médias est assimilable à la responsabilité professionnelle. Cela signifie que, dans le cas d’un reportage, l’enquête doit être réalisée en utilisant les techniques d’enquête usuelles selon les contours d’une obligation de diligence et de moyens.

S’il s’agit de la diffusion d’une opinion ou d’un commentaire, la défense de « commentaire loyal » permet au commentateur de faire échec à une action en diffamation, si son commentaire est l’expression honnête d’une opinion raisonnable portant sur un sujet d’intérêt public. » [ 63 ] In the present instance, plaintiff’s claim is based on

article 1457 Q.c.c. which reads : «

Article 1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature. » [ 64 ] In view of the terms of

article 1457 Q.c.c . and the principals stated in the above quoted cases, the Court is of the opinion that there is no faulty or negligent conduct on the part of defendants CBC Radio Canada, Bell Canada and Microsoft Corporation in the manner in which they reported on the judgment rendered by Madam Justice Tremblay-Lamer. [ 65 ] The

article posted by defendant CBC Radio Canada and republished by defendants Bell Canada and Microsoft Corporation summarized correctly, with great minutia, the Reasons for Order of Madam Justice Tremblay-Lamer. [ 66 ] The claim against defendants CBC Radio Canada, Bell Canada and Microsoft Corporation must therefore be dismissed.

Claim against New Zimbabwe Media Ltd [ 67 ] On July 16, 2012, plaintiff inscribed for judgment by default to appear against defendant New Zimbabwe Media Ltd. [ 68 ] On February 4, 2013, the Court pointed out to plaintiff that the affidavit to which this inscription for judgment by default to appear refers, although appearing in the plumitif, was not part of the Court’s record. [ 69 ] Plaintiff forwarded the said affidavit to the Court on February 5, 2013 with its letter dated February 4, 2013. [ 70 ] The Court has reviewed this affidavit and concludes that for the same reasons as given in the analysis of the claim against the other defendants, plaintiff’s claim against New Zimbabwe Media Ltd must also be dismissed.

III MOTIONS BY DEFENDANTS CBC RADIO CANADA, MICROSOFT CORPORATION AND BELL CANADA TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT AND TO IMPOSE SANCTIONS FOR IMPROPER USE OF PROCEDURE (DATED RESPECTIVELY JANUARY 23, 2013 AND FEBRUARY 4, 2013) [ 71 ] The attorneys for defendants CBC Radio Canada, Microsoft Corporation and Bell Canada pleaded these Motions on February 6, 2013 and the Court took them under advisement. [ 72 ] After reviewing the allegations in the Motions as well as the entirety of the Court’s file, the Court is of the opinion that the délibéré should be struck and the Motions continued sine die. [ 73 ] FOR THESE REASONS, THE COURT : DISMISSES Plaintiff’s Inscription for judgment by default to appear against defendant Microsoft Corporation dated August 6, 2012 ; WITH COSTS.

DISMISSES Plaintiff’s Motion to impose sanctions against defendants CBC Radio Canada and Microsoft Corporation for improper use of procedure dated September 12, 2012 ; WITH COSTS. DISMISSES Plaintiff’s Motion for order of production of documents dated November 5, 2012 ; WITH COSTS. DISMISSES Plaintiff’s Motion to impose sanctions against defendant Bell Canada for improper use of procedure dated August 17, 2012 ; WITH COSTS. CONTINUES Sine die Bell Canada’s verbal motion to be relieved of its default to plead ;

DISMISSES Plaintiff’s Motion for leave to put transcripts, exhibits and a CD before the trial judge in support of motion to impose sanctions against defendant Bell Canada for improper use of procedure dated November 4, 2012, except for Conclusion B(

i) and (ii) ; WITH COSTS. DISMISSES Plaintiff’s Motion to institute proceedings against all the Defendants : WITH COSTS. STRIKES the Délibéré of the Motions by Defendants CBC Radio Canada, Microsoft Corporation and Bell Canada to declare plaintiff a vexatious litigant and to impose sanctions for improper use of procedure dated respectively January 23, 2013 and February 4, 2013 and ; CONTINUES these Motions Sine die. __________________________________ MARC DE WEVER, J.S.C. Mr Francis Mazhero Representing himself Me Barry Landy Spiegel Sohmer inc.

Attorneys for defendants, CBC Radio Canada and Microsoft Corporation Me Stéphane Richer Borden Ladner Gervais Attorneys for defendant Bell Canada Dates of hearing : February 4 th and 6 th , 2013