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Ontario Court of Appeal allowed a libel appeal in part, upholding liability and damages but setting aside an overbroad permanent injunction for redrafting.
The appeals were allowed because the motion judge failed to assess and explain the fairness of deciding the matters by summary judgment in light of Rule 76.04's procedural constraints, failed to resolve or explain conflicts in the evidence and credibility findings on central issues (termination date and mitigation), and therefore the summary judgment determinations were unsafe and the motions were dismissed.
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The Court allowed the appeal, holding the trial judge erred in principle by finding it unreasonable to proceed under the ordinary procedure despite his own pre‑verdict assessments (jury charge and threshold ruling) that made a recovery over $50,000 a realistic possibility; the reasonableness inquiry must be based on pre‑verdict facts, so the appellant was entitled to costs as assessed by the trial judge and additional appellate costs fixed at $7,500.
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