Judgment of the Court
J.-The plaintiff appeals from the judgment of the Appellate Division of the Supreme Court of Ontario (1), affirming, on an equal division of opinion, the judgment of Middleton J. granting a motion by the defendant for the dismissal of this action on the ground of non-compliance by the plaintiff with sub-sec. 1 of sec. 8 of the "Libel and Slander Act" (R.S.O., ch. 71). The notice of the alleged libel complained of, addressed to "The Editor of the World," was delivered to the city editor.of that newspaper. Middleton J. held this insufficient, following Burwell v. London Free Press Co. (2), and Benner v. Mail Printing Co. (3).
By his appeal the plaintiff seeks to have these decisions overruled.
The defendant's motion was made under Ont. Con. Rule 222, upon admissions contained in the plaintiff's -pleadings and examination for discovery disclosing the fact above stated.
Sec. 15, sub-sec. 1, of the "Libel and Slander Act" (R.S.O., ch. 71) provided that:
We had occasion recently to consider a corresponding provision of the "Alberta Libel Act" -in Scown v. Herald Publishing Co. (1).
Nowhere in the material before the court does it appear that the defendant company complied with the requirements of sub-sec..1 of sec. 15. The newspaper itself, the production of a copy of which is made primd facie evidence by subsection 2, is not in the record.
To meet this difficulty, raised by the court itself, counsel for the defendant invoked paragraph 7 of his client's plea, which avers the plaintiff's neglect to give the notice prescribed by sub-sec. 1 of sec. 8, and his failure in his reply to set up the defendant's noncompliance with sub-sec. 1 of sec. 15. But assuming paragraph 7 of the statement of defence to be a good plea without an averment that the defendant had complied with sub-sec. 1 of sec. 15, the absence from the reply of an allegation of non-compliance therewith is not an admission that it had in fact been complied with. Even if the defendant had expressly averred compliance with sub-sec. 1 of sec. 15 in his statement of defence, the failure of the plaintiff in his reply to deny that allegation would not amount to an admission of its truth under the Ontario practice. Con. R. 144. The appeal to this court is upon a case stated (" Supreme Court Act," section 73), on which it is our duty to give the judgment which the court whose decision is appealed against should have given (section 51).
We cannot, whether for the purpose of upholding or for that of impeaching the judgment appealed from, supplement the appeal case by admitting evidence that should have been placed before the provincial courts. Red Mountain Railway Co. v. Blue (1).
On the ground, therefore, that compliance by it with sub-sec. 1 of sec. 15 of the " Libel and Slander Act " is a fact which cannot be presumed in the defendant's favour on a motion made under Con. R. 222 but must be established by it, and that the record contains no 'admission of that essential fact by the plaintiff such as that rule requires the appeal must be allowed and the judgment dismissing the action set aside.
It should be unnecessary to add that from the allowance of the plaintiff's appeal no inference may be drawn as to the opinion of the court in regard to the soundness of the two decisions followed by Mr. Justice Middleton.
Appeal allowed with costs.