Summary Dismissal of Libel Action against Toronto Life Magazine Set Aside

Today’s decision in  Roberts v. Toronto Life Publishing Co. Ltd., 2010 ONCA 82 [“Roberts v. Toronto Life”] is a reminder that libel actions are usually not amenable to summary dismissal under Rule 20 of the Ontario Rules of Civil Procedure.

The case stems from a June, 2008 Toronto Life article entitled, “How to Piss Off a Billionaire” published in Toronto Life’s print and on-line editions which referred to Russian billionaire Alex Schnaider and described the ongoing litigation between Schnaider and Michael Shtaif, a former business partner. The article also named Toronto lawyer, Gregory Roberts. The plaintiffs commenced an action pleading claims in defamation, as well as asserting non-defamation causes of action. Toronto Life initially brought a Rule 21 motion to strike the plaintiffs’ claims relating to intentional interference with prospective business advantage, negligence, damages for intentional infliction of mental anguish and emotional distress, and injurious falsehood, some of which, albeit not all, were struck by Brown, J. Toronto Life then successfully moved for summary judgment before Echlin, J. who found there was no genuine issue for trial in respect of the alleged defamatory words.

In a brief endorsement, the Court of Appeal for Ontario held:

“[2]…Dealing with the number two excerpt complained of, that Schnaider accused Shtaif and Roberts of being “extortionists and possibly conspirators in an elaborate fraud”, the motion judge concluded that because it was conceded that Mr. Schnaider did make that accusation, it was not defamatory.

[3] With respect to excerpts 4 to 8 complained of, he concluded that they were not capable of being referable to the appellant Roberts.

[4] In our view, the motion judge erred in granting summary judgment. The test to be applied was whether there was a genuine issue for trial; in this case that is: whether the excerpts complained of were libellous. The motion judge did not explain why there is no genuine issue for trial. In our view, reading this article as a whole, it is clear that the excerpts complained of are capable of being defamatory of the appellant Mr. Roberts. The article clearly refers to Mr. Shtaif and Mr. Roberts and the allegations of criminal conduct are against both men.

[6] Costs to the appellant in the total amount of $10,000 inclusive of G.S.T. and disbursements for both the motion below and the appeal.” [emphasis added]

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