Sentinel-Review Co., Ltd. v. Robinson et al.

EVENING TELEGRAM PUBLISHED AT To- RONTO (DEFENDANTS)...............

ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO

J.-The verdict and judgment recovered by the appellants against the respondents for damages for libel published in the respondents' newspaper, was set aside by the Appellate Division of the Supreme Court of Ontario (1), and the action dismissed upon the ground that no sufficient notice of action had been given by the appellants under the statute, s. 8, R.S.O. (1914), cap. 71.

The appellants base their appeal upon two contentions. First, they say that the notice was sufficient, and second, they say it was not open to the respondents to object to the sufficiency of the notice because such an objection, by the rules of pleading, ought to have been, and this objection was not, raised by the statement of defence.

First, as to the question of pleading. The pertinent rule is:- In their statement of claim the appellants allege in paragraph 8,

This is the only reference which the pleadings contain, to the notice of action.

The alleged cause of action, if well founded, was complete under the principles of the common law upon the publication of the libel. The statute imposes the condition of notice before action against a newspaper, in order that the newspaper may be given an opportunity of retracting or explaining the imputations complained of. If the giving of this notice by the appellants is a condition precedent within the meaning of C.R. 146, then the respondents could only contest it, if, in compliance with the rule, non-performance of the condition was specifically alleged in the statement of defence.

The Appellate Division holds that the giving of notice is not a condition precedent within the meaning of the rules of pleading.

There is a sense, of course, in which any fact that a plaintiff must prove is an element in his right of action. Broadly, common lawyers, in speaking of rights, mean rights which the courts will enforce; nevertheless, the distinction runs all through the law, and is a very familiar one, between rights and remedies, enforceable rights and rights of imperfect obligation; and the distinction is an old one, well recognized in the rules of pleading, between the substantive elements of a cause of action, and conditions precedent which a plaintiff must observe in order to entitle him to sue.

Formerly a plaintiff was required to set out in his declaration every condition precedent and to aver with particularity performance of it. Later, by the Common Law Procedure Act, it was provided that the plaintiff or defendant might aver performance of conditions precedent generally, and that " the opposite party shall not deny such averment generally, but shall specify in his pleading the condition or conditions precedent the performance of which he intends to contest."

(Harrison, C.L.P. Act, p. 93).

After the enactment of this Act, it was usual to allege in the declaration that " all conditions were performed, and all things happened, and all times elapsed necessary to entitle the plaintiff to maintain the action."

Under the practice established by the Judicature Acts, the necessity of a general averment of the performance of conditions precedent was dispensed with, such an averment being implied; but it is still, as required by C.R. 146, incumbent on a party who intends to contest the performance of any condition precedent to specify it distinctly in his pleading.

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The distinction (between a condition precedent in this sense, and a condition which is one of the constitutive elements of the plaintiff's right), is perhaps not easily capable of statement in abstract form; and differences of opinion will arise as to the category to which a particular fact Dbelongs. But, as Mr. Justice Magee points out, statutory notices of action, which presuppose the existence of a completely constituted cause of action at common law independently of the notice, have commonly been held to be conditions precedent in this sense, as for example, in the case of notice to a magistrate, Conmee v. Bond (1).

Where a departure from the strict rule of pleading is permitted, the statute expressly authorizes the point to be raised under the general issue. The cases referred to by Hodgins, J.A., seem to fall within one of two classes: first, those in which the fact to be pleaded was an essential part of the cause of action at common law, as in proof of a termination favourable to the plaintiff, of the proceedings complained of in an action for malicious prosecution, and the case of notice of dishonour in an action against an endorser; second, those in which the right of action is statutory, and the existence of the fact in question is one of the prescribed statutory conditions, as notice of tjhe assignment, which must be alleged in an action in the assignee's name upon an assignment of a legal debt under the provisions of s. 25 of the Judicature Act. With great respect I am unable to agree with the conclusion of the Appellate Division on this point.

Nor are the respondents, by the allegation in paragraph 8 of the statement of claim, relieved from the duty under C.R. 146 to state in their pleading their intention to contest the giving of notice. That allegation merely expresses what, in the absence of it, would be implied.

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 sue is notified. The communication must, of course, indicate the intending plaintiff with reasonable certainty. But that is accomplished when words are used which are calculated to apprise the addressee of the * identity of the complainant.

I have no doubt that the notice in question did in fact inform the respondents that the complainants were the proprietors of the Sentinel-Review.

A similar point arose in Knott v. Telegram Printing Co. Ltd. (1), although there the question concerned the identification 'of the addressee. The point of view from which such documents should be considered is indicated in the judgment of Anglin J., as he then was, at p. 342, in these words, with which I agree:- Nor do I think the respondents are entitled to a new trial on the ground that the damages are excessive.

Many people, perhaps most, would not be disposed to treat very seriously the publications complained of, especially after the apology to Mr. Taylor. But the jury has found that the reflections in the libellous publications were directed against the appellants; and it was within the power of the jury to take a severer view of those reflections, as calculated to injure the position and prestige of the appellants' papers, and thus to inflict upon them substantial damage in their business as newspaper publishers; and since the jury, as is quite evident, did take that view, there is no ground upon which a court of appeal, acting on the well settled principles governing such matters, can adjudge that the award of damages transgresses the latitude in which the law permits a jury to indulge in actions of libel. The appeal should be allowed with costs here and below and the judgment of the trial judge restored.

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