Bahlieda v. Santa

Bahlieda v. Santa Collection Decisions of the Court of Appeal Date 2003-10-22 Docket numbers C39974 Judges McMurtry, Roy; Goudge, Stephen Thomas; Gillese, Eileen E. Subject Civil Decision Content DATE: 20031022 DOCKET: C39974 COURT OF APPEAL FOR ONTARIO MCMURTRY C.J.O., GOUDGE and GILLESE JJ.A. BETWEEN: ELAINE BAHLIEDA Plaintiff (Appellant) - and - ORVILLE SANTA Defendant (Respondent) Peter A. Downard and Berkley D. Sells for the appellant Lorne Honickman and Carita Pereira for the respondent Heard: October 9, 2003 On appeal from the order of Justice Pierce dated March 31, 2003, reasons on motion reported at (2003), 64 O.R. (3d) 599 (Ont. Sup. Crt.). BY THE COURT: [1] This is an appeal from an order granting the respondent's motion for summary judgment and dismissing that part of the appellant's claim for libel arising from allegedly defamatory material posted by the respondent on his internet website. [2] The motions judge found that material placed on a website and made available through the internet is a "broadcast" within the meaning of the Libel and Slander Act, R.S.O. 1990, c. L-12. As the appellant did not deliver a notice of claim and statement of claim within the periods required by ss. 5(1) and 6 of the Act, the motions judge held that the appellant's claim was statute barred. [3] The motions judge considered the parties' expert reports which defined the nature of the internet and gave their opinions on whether placing material on the internet constitutes a broadcast. [4] At para. 49, she concluded that there was no genuine issue for trial because: The definition of "broadcasting" contained in the Libel and Slander Act deals with infrastructure, and it deals with the effect of dissemination of information. On this, the experts agree. [5] She held that because the internet uses the same infrastructure as radio and television and because material placed on the internet via a website may be accessed by a large audience, such material constitutes broadcasting within the meaning of the Act. [6] In our view, the motions judge erred in several respects in finding that there was no genuine issue for trial. Section 7 of the Act provides that subsection 5(1) and section 6 apply only to "broadcasts from a station in Ontario". She makes no findings of fact, including no finding as to the essential question of whether the broadcasts were from a station in Ontario. On that basis alone, in our view, the application should have been dismissed. In addition, however, we note that the experts' opinions conflicted on a number of issues, including whether the word "dissemination" can properly apply to information distributed by internet and whether internet publication is immediate and/or transient. Summary judgment applications are not a substitute for trial and thus will seldom prove suitable for resolving conflicts in expert testimony particularly those involving difficult, complex policy issues with broad social ramifications. [7] The conflicting expert opinions raise considerations that are germane not only to deciding whether internet publications are a broadcast within the meaning of the legislation, but also to determining whether subsequent viewing of the internet message by third parties amounts to a republication of the material. [8] Accordingly, we would allow the appeal and set aside the order below in which partial summary judgment is granted. Costs of the appeal and below to the appellant fixed in the amounts of $12,000 and $10,000, respectively. "R.R. McMurtry C.J.O." "S.T. Goudge J.A." "E.E. Gillese J.A." Released: October 22, 2003