Gichuru v. Pallai (2013), 332 B.C.A.C. 272 (CA);
569 W.A.C. 272
MLB headnote and full text
Temp. Cite: [2013] B.C.A.C. TBEd. FE.018
Mokua Gichuru (appellant/plaintiff) v. Mark Pallai, Vladyslav Mayzel, and Smart Technologies Consultants Ltd. (respondents/defendants)
(CA040003; 2013 BCCA 60)
Indexed As: Gichuru v. Pallai et al.
British Columbia Court of Appeal
Hall, Tysoe and D. Smith, JJ.A.
February 6, 2013.
Summary:
Gichuru appealed an order dismissing his damages claim for defamation against the defendants. He also appealed the order awarding the defendants double costs. The orders were made following a summary trial application by the defendants to have Gichuru’s claim dismissed: see [2012] B.C.T.C. Uned. 693.
The British Columbia Court of Appeal dismissed the appeal from both orders.
Libel and Slander – Topic 1901
Publication – General – Requirement of – The plaintiff alleged that a posting on the Discover Vancouver website was defamatory – The defendants denied that they had published the alleged defamatory statement – The plaintiff appealed an order dismissing his claim – A ground of appeal was that the trial judge erred in applying the test for publication – The British Columbia Court of Appeal stated that “a defamatory statement is actionable only if published. Publication is a threshold issue. At trial (whether conventional or summary), the onus is on the plaintiff to prove publication of the impugned statement: (1) by the defendant; and (2) to a third party other than the parties to the action. Absent evidence of both elements of publication, a claim in defamation will fail. In these circumstances, any defence raised by the defendant need not be considered. While [the plaintiff] raised an argument regarding the judge’s application of the law with respect to the second element of publication, I find it unnecessary to address that argument as I can dispose of the appeal on the basis of lack of evidence as to the first element.” – See paragraph 5.
Practice – Topic 5255.4
Trials – General – Summary trials – Availability of – The British Columbia Court of Appeal stated that “the jurisprudence is clear that, subject to certain guidelines, the decision as to the suitability of proceeding by way of summary trial to determine an action (or issue), is a discretionary one. Appellate deference is given to the exercise of discretionary powers in the absence of a clear conclusion that the discretion has been wrongly exercised, in that no weight or insufficient weight has been given to relevant considerations … or it appears that the decision is clearly wrong and may result in an injustice … The authorities are also clear that a summary trial, although heard on affidavits in chambers, remains a trial of the action for which the plaintiff (even if not the applicant) retains the onus of proof of establishing his or her claim(s) and the defendant (even if not the applicant) retains the burden of establishing any defence that is raised.” – See paragraphs 34 and 35.
Practice – Topic 5255.4
Trials – General – Summary trials – Availability of – Following a summary trial application by the defendants, the judge dismissed the plaintiff’s defamation claim – On appeal, the plaintiff submitted that the summary trial application should have been dismissed as unsuitable – The British Columbia Court of Appeal held that the trial judge properly exercised her discretion in determining the action summarily – “[T]here was a discrete threshold issue to be determined in this case that did not involve any issues of credibility, complexity or conflicting evidence, i.e., the issue of publication. If it could be determined, it would end the litigation and avoid the expense of a potentially lengthy trial” – The plaintiff’s failure to produce any evidence that the defendants had published the alleged defamatory statement was a fatal blow to his claim, even if there was some evidence capable of supporting an inference that a third party had read the statement.” – See paragraphs 37 and 38.
Cases Noticed:
Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R.(2d) 202 (C.A.), refd to. [para. 30].
Dahl et al. v. Royal Bank of Canada et al., [2005] B.C.T.C. 1263; 2005 BCSC 1263, affd. (2006), 229 B.C.A.C. 263; 379 W.A.C. 263; 2006 BCCA 369, refd to. [para. 31].
Everest Canadian Properties Ltd. et al. v. Mallmann et al. (2008), 258 B.C.A.C. 23; 434 W.A.C. 23; 2008 BCCA 275, refd to. [para. 32].
Brown et al. v. Douglas et al. (2011), 314 B.C.A.C. 143; 534 W.A.C. 143; 2011 BCCA 521, refd to. [para. 33].
Creasey v. Sweny (1942), 57 B.C.R. 457 (C.A.), refd to. [para. 34].
Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 34].
Stone v. Ellerman et al. (2009), 273 B.C.A.C. 126; 461 W.A.C. 126; 92 B.C.L.R.(4th) 203; 2009 BCCA 294, leave to appeal denied (2009), 403 N.R. 395 (S.C.C.), refd to. [para. 34].
Bell v. Levy et al. (2011), 312 B.C.A.C. 53; 531 W.A.C. 53; 2011 BCCA 417, refd to. [para. 34].
Taylor v. Vancouver General Hospital, [1945] 3 W.W.R. 510; 62 B.C.R. 42 (C.A.), refd to. [para. 34].
Miura v. Miura (1992), 66 B.C.L.R.(2d) 345 (C.A.), refd to. [para. 35].
Hartshorne v. Hartshorne (2011), 299 B.C.A.C. 6; 508 W.A.C. 6; 2011 BCCA 29, refd to. [para. 42].
Anderson v. Routbard (2007), 239 B.C.A.C. 98; 396 W.A.C. 98; 2007 BCCA 193, refd to. [para. 42].
Statutes Noticed:
Supreme Court Civil Rules (B.C.), rule 9-7(15) [para. 29]; rule 15-1(15)(b) [para. 39].
Rules of Court (B.C.) – see Supreme Court Civil Rules (B.C.).
Counsel:
M. Gichuru, appellant, appeared in person;
D. Burnett and H. Maconachie, for the respondents.
This appeal was heard at Vancouver, British Columbia, on January 14, 2013, before Hall, Tysoe and D. Smith, JJ.A., of the British Columbia Court of Appeal. In reasons written by D. Smith, J.A., the Court of Appeal delivered the following judgment, dated February 6, 2013.
