COURT OF APPEAL FOR ONTARIO
CITATION: Chandra v. Canadian Broadcasting Corporation, 2016 ONCA 448
DATE: 20160607
DOCKET: M45682 & M46448
MacFarland J.A. (In Chambers)
BETWEEN
Ranjit Kumar Chandra
Plaintiff (Moving Party)
and
Canadian Broadcasting Corporation, Chris O’Neill-Yates, Catherine McIsaacs, Lynn Burgess, Jack Strawbridge and Memorial University of Newfoundland
Defendants (Respondents)
H. Richard Bennett and Joseph Figliomeni, for the moving party Ranjit Chandra
Christine L. Lonsdale and Gillian Kerr, for Canadian Broadcasting Corporation, Chris O’Neill-Yates and Lynn Burgess
Heard: May 12, 2016
ENDORSEMENT
[1] The moving party seeks an extension of time to file a notice of appeal from the judgment of Mew J. sitting with a jury dated July 24, 2015.
[2] In the event an extension of time is granted, then by way of cross-motion, the responding parties seek an order for security for costs and to have any stay pending appeal lifted.
[3] For the reasons that follow, the extension of time is denied.
[4] In January 2006, the CBC broadcast a three-part news segment entitled, “The Secret Life of Dr. Chandra.” As a result of the broadcast, the moving party, Dr. Chandra, sued the CBC and journalists O’Neill-Yates and Burgess for libel and invasion of privacy. The action was discontinued against the other named parties prior to trial. The allegations in support of his claim are set out in his pleading:
15. The plaintiff pleads that the words complained of were intended, meant and were understood to mean that:
(a) the plaintiff engaged in a pattern of scientific and academic fraud, lying and financial deception;
[5] Subparagraphs (b) through (j) of paragraph 15 detail further particular allegations of fraudulent conduct. Paragraph 24 of the statement of claim pleads invasion of privacy, and details of the conduct the moving party alleges in support of his claim for invasion of privacy continue in paragraphs 25 through 30.
[6] The moving party’s claims for damages as the result of CBC’s conduct are set out in paragraphs 19 and 20:
19. By reason of the broadcast, the plaintiff has been greatly injured in his credit and reputation and has been brought into scandal, odium, hatred, ridicule and contempt and has suffered damage.
20. The plaintiff states that the defendants’ conduct towards him has been reckless, malicious, oppressive, callous, shocking and high handed and in complete and total disregard for the rights and reputation of the plaintiff, and that such conduct warrants the imposition of aggravated and punitive damages against the defendant.
[7] And further at paragraphs 30 and 31:
30. The Plaintiff states further that all of the broadcasts of the CBC Defendants described herein depicted the plaintiff in a false light. The CBC Defendants caused widespread publicity of information which placed the Plaintiff in a false light that would be highly offensive to a reasonable person for which the CBC Defendants are liable. As a result of the false light depiction of the Plaintiff, he has been emotionally injured and publicly embarrassed.
31. As a direct result of the CBC Defendants’ invasion of the Plaintiff’s privacy, the Plaintiff has suffered damages for which the CBC Defendants are liable to compensate the Plaintiff.
[8] In total, the moving party claimed over $130,000,000 in damages.
[9] The statement of claim was issued April 27, 2006. The matter proceeded to trial nine years to the day later, on April 27, 2015. Four lawyers made appearances for the moving party at trial: Mr. Lavers, Ms. Learmonth, Mr. Bennett and Mr. Figliomeni. The responding parties were represented by Ms. Lonsdale, Mr. Marques and Ms. Kerr. The trial continued for some 54 days until the verdict of the jury was received on July 24, 2015.
[10] The jury concluded, by their answers to the questions posed, that although the broadcast complained of was defamatory of the moving party, the words used in the broadcast were true. They also concluded that there was no intrusion upon seclusion. Accordingly, the action was dismissed.
[11] In detailed reasons released November 13, 2015, the trial judge fixed substantial indemnity costs against the moving party in the all-inclusive sum of $1,614,000.
[12] No notice of appeal was filed within 30 days of July 24, 2015. The moving party now seeks an extension of time to file one. The notice seeking an extension of time was filed October 21, 2015.
[13] The test the moving party must meet in order to be granted an extension of time to file a notice of appeal is well-settled. Those factors are succinctly set out in this court’s decision in Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401, at para. 16:
1) whether the appellant formed an intention to appeal within the relevant period;
2) the length of the delay and explanation for the delay;
3) any prejudice to the respondent;
4) the merits of the appeal; and
5) whether “the justice of the case” requires it.
[14] In that same decision, at para. 17, Gillese J.A. added:
However, I would echo the following comments of Laskin J.A. in Bratti v. Wabco Standard Trane Inc. (c.o.b. Trane Canada) (1994), 25 C.B.R. (3d) 1 at 3 (Ont. C.A.):
While appellate courts have considered a number of different factors in determining whether to grant leave to extend the time for appealing, the governing principle is simply whether the “justice of the case” requires that an extension be given.
[15] The moving party submits that he formed his intention to appeal within the relevant time. He swears in his affidavit on this motion, sworn October 21, 2015, that after the initial shock of the jury verdict he immediately consulted with his four trial lawyers “with a view to preparing for an appeal of the jury verdict.” During this process, he “determined that [he] should obtain a second opinion about [his] litigation strategy.”
[16] Appended to his affidavit, in support of the submission that he formed an intention to appeal on time, are two letters the moving party claims he sent to this court while he was in India in the month following the verdict. The letters are dated August 22, 2015 and August 23, 2015.
[17] The letters contain discrepancies. In the August 22 letter, the moving party says that he is currently in India and will be away from Canada for several months. He says that his lawyers need time to review the many documents from the trial and requests an extension of time to file a notice of appeal to January 31, 2016. By contrast, in the August 23 letter, he says that he has “to be away from Canada for several weeks”. He also says he has “had to replace [his] solicitors with new ones”. In this letter, he requests an extension of time to file a notice of appeal to September 30, 2015.
[18] This court has no record of ever having received either letter. They were not copied to the responding parties. Assuming the letters were sent, it is understandable that copies would not be retained as no file had been opened in this court, there being neither a notice of appeal nor a motion seeking an extension of time to file one.
[19] A further difficulty with the letters is a statement in each one that the “written judgment of Judge Mews” had not yet been “received by [the moving party’s] solicitors”.
[20] This was a trial before a jury. The verdict of that jury was given July 24, 2015. There would be no written reasons for judgment from the trial judge, and the moving party’s lawyers were aware of the process for obtaining an issued and entered judgment at the conclusion of trial.
[21] In addition, the dates of the letters are very close to the deadline for filing a notice of appeal.
[22] As noted, the moving party swears that after consulting with his four trial lawyers “with a view to preparing for an appeal of the jury verdict”, he “determined that [he] should obtain a second opinion about [his] litigation strategy.” In early August, the moving party says he consulted with lawyer Mark McMackin, who recommended that the moving party obtain a second opinion from Mr. McMackin’s colleague Norman Ronski.
[23] Mr. McMackin gave evidence on this motion after he was served with a summons to witness by the responding parties.
[24] Mr. McMackin’s recollection is that he spoke to the moving party “likely… in August” and that the moving party “just said he was considering whether or not ... he was considering his appeal rights”. It was Mr. McMackin’s belief that the moving party continued to be represented by his original trial lawyers throughout. Mr. McMackin also believed that the moving party had a conversation with Mr. Ronski “about his views about an appeal” before Mr. McMackin left for vacation on or about August 21, 2015.
[25] Mr. McMackin and Mr. Ronski’s firm was never retained.
[26] Mr. McMackin’s evidence provided in response to an undertaking is:
Mr. Ronski provided no substantive advice to Dr. Chandra concerning the appeal. Mr. Ronski has not given any substantive advice to Dr. Chandra about an appeal or the potential for an appeal; at most, Mr. Ronski may have had some discussion involving Dr. Chandra about the timing of an appeal and when the appeal could be brought. Mr. Ronski has never met Dr. Chandra and they have only had discussions on the phone.
[27] Following his conversation or conversations with Dr. Chandra, Norman Ronski sent a letter to this court dated August 24, 2015. In that letter, Mr. Ronski says that the moving party was previously represented by the four trial lawyers, is “at present self-represented” and is in the process of retaining his firm. He says it is the express intention of the moving party to appeal the July 24 verdict and it will be his intention, once retained, to bring a motion for an extension of time to file a notice of appeal.
[28] The statement in Mr. Ronski’s letter to this court about the moving party being self-represented conflicts with the belief of Mr. McMackin and with the letters sent by Dr. Chandra. In his letters, Dr. Chandra directs the court to his “senior lawyer” and “senior attorney”, Mr. John Lavers. Dr. Chandra does not deny that he was represented by counsel throughout.
[29] Finally, while Mr. Ronski’s letter purports to have been forwarded to counsel for the responding parties, it was never received because the email addresses were all incorrect. The letter indicates that it was forwarded to recipients at domain names variously recited as “@macarthy.ca” and “@marcarthy.ca”. The McCarthy firm, which represents the responding parties, is well-known, certainly among litigators in Toronto, and Mr. Ronski is described in these proceedings as a “senior litigator”. If the mistake wasn’t deliberate, it was careless in the extreme.
[30] As a result, the responding parties had no notice whatsoever of the moving party’s intention to seek an extension of time to appeal until they were served with his motion record October 21, 2015.
[31] The one thing that can be gained from all three letters is that both the moving party and one of the lawyers he consulted were well aware that an appeal had to be filed in a timely way. The timing of these three letters – so very close to the end of the 30-day appeal period – cannot be a coincidence.
[32] I share counsel for the responding parties’ query – why, in these circumstances, knowing there was a timeline, would counsel not have filed a place-holder notice of appeal to meet that timeline? No satisfactory explanation was given. There seems simply to have been the expectation that an extension of time would be granted if Dr. Chandra ultimately decided that he wished to pursue an appeal after the 30-day period.
[33] I am not persuaded on the record that Dr. Chandra formed an intention to appeal within the 30-day period.
[34] The evidence as to whether Dr. Chandra formed the necessary intention to appeal within the 30 days is equivocal and contradictory. The court has no record of having received the letters offered by Dr. Chandra, they are misleading in some respects and they were never copied to counsel for the responding parties. Importantly, while in his affidavit he swears he formed the intention to appeal immediately, Dr. Chandra’s own letters sent at about the 30-day mark do not express that same intention. In neither letter does Dr. Chandra himself say words to the effect that he has decided to appeal the verdict of the jury. Instead, the letters speak only of wanting a second opinion about his litigation strategy.
[35] Only in Mr. Ronski’s letter to the court does he say – “[i]t is the express intention of Dr. Chandra to appeal”. The legitimacy of this statement is undermined by the fact that, according to Mr. McMackin’s evidence, Mr. Ronski never actually provided Dr. Chandra with any substantive legal advice.
[36] Dr. Chandra explains the delay in filing the notice of appeal based on his desire to obtain a second opinion regarding his litigation strategy. He says in his affidavit that he returned to Canada in late September 2015, at which time he “immediately consulted with Mr. McMackin to determine whether Mr. Ronski was prepared to act” on his behalf.
[37] It was not unreasonable for Dr. Chandra to seek a second opinion from Mr. Ronski. Some time would reasonably be allowed for that. The difficulty is that while Dr. Chandra in his affidavit suggests he consulted with Mr. McMackin as to whether Mr. Ronski would act for him on his return to Canada in late September, 2015, Mr. McMackin’s evidence was that the initial telephone conversation between Dr. Chandra and Mr. Ronski took place before the date Mr. McMackin left on holiday that year – August 21, 2015.
[38] In his affidavit, Dr. Chandra explains that he had surgery to replace the battery in his pacemaker on September 30, 2015 and was unable to meet with counsel until October 13, 2015. Yet his passport and his cross-examination demonstrate that he was back in Canada by September 5, 2015. There is no explanation why he could not meet earlier with Mr. Bennett and/or Mr. Figliomeni, the lawyers from his trial who appeared for him on this motion. As I said, his evidence about when he received advice from Mr. Ronski is contradicted by Mr. McMackin’s evidence on this point.
[39] It must be remembered that matters did not stand idle following the jury’s verdict. Three business days after the verdict, Dr. Chandra listed his Toronto condominium for sale with immediate occupancy available. When the responding parties learned of this they threatened to seek injunctive relief to preclude any sale. An agreement was ultimately reached whereby a sale would require the consent of the responding parties, with the net proceeds of sale to be placed in trust and the property not further encumbered.
[40] A reading of Dr. Chandra’s affidavit would leave one with the impression that he sought a second opinion on his “litigation strategy” from Mr. McMackin soon after the jury verdict, and that he then went to India where he remained until he returned to Canada in late September 2015. He could not come to an agreement with Mr. Ronski at that time and he then had his pacemaker surgery which disabled him until October 13, 2015. After meeting with Messrs. Bennett and Figliomeni and consulting with Mr. Lavers, he says he instructed and retained Messrs. Bennett & Figliomeni on October 17, 2015 to bring a motion to extend time to file a notice of appeal.
[41] While this statement may be accurate as far as it goes, it ignores entirely the fact that throughout this time, Dr. Chandra was instructing Messrs. Bennett and Figliomeni with respect to the signing of the final judgment, making costs submissions, and making and adjourning the appointments to make costs submissions. The litigation was ongoing and Dr. Chandra was of necessity in frequent communication with his lawyers and providing instruction in relation to those matters.
[42] I ask again why, during all this time, no notice of appeal, even a pro forma document, was filed. During this entire period, Dr. Chandra was in communication with Mr. Lavers, as well as Messrs. Bennett and Figliomeni. The latter were preparing costs submissions and the argument on costs was originally scheduled for mid-September. Dr. Chandra would have the reader believe that he only “retained” Messrs. Bennett & Figliomeni in mid-October 2015 for the purpose of bringing this motion. The record simply does not support his assertion and it is misleading for him to suggest otherwise.
[43] I am not persuaded that there has been any satisfactory explanation for the delay.
[44] When considering the merits of the appeal, it is not with a view to determining whether the appeal will succeed, but only with a view to determining whether the appeal has so little merit that the court could reasonably deny the important right of appeal: Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828, at para. 13.
[45] In my view, the moving party has failed to meet even this low threshold.
[46] The moving party seeks to appeal the verdict of a jury. The law is well-settled and has been for decades going back to the decision of the Supreme Court of Canada in McCannell v. McLean, [1937] S.C.R. 341, where Chief Justice Duff noted, at p. 343:
[T]he verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it.
[47] It cannot be disputed that an appellant who seeks to overturn a jury’s verdict faces an uphill battle. As Weiler J.A. of this court noted in Gutbir v. University Health Network, 2012 ONCA 66, 287 O.A.C. 223, at para. 5, “Where there is some evidence to support the verdict, a jury will be accorded a high degree of deference.”
[48] This jury verdict in particular is based upon a defence of truth and the credibility of Dr. Chandra. There was no real issue that the broadcast was defamatory; the CBC defendants admitted that it was. The defence that succeeded at trial was that of justification – the jury concluded that the defamatory statements made about Dr. Chandra were true. And provided there was some evidence to support that finding, its verdict is not likely to be overturned.
[49] The trial judge noted in his costs endorsement dated November 13, 2015 that there was ample evidence adduced at trial to support the findings of the jury: 2015 ONSC 6519, at para. 30. Clearly, his view is not determinative, but it is informative where it is a jury verdict that is in issue.
[50] In a nutshell, as the responding parties agree, the jury found that the statements made in the broadcast, which included that the moving party had engaged in scientific fraud and financial deception, were true.
[51] With this background, I turn to the proposed grounds of appeal.
[52] Dr. Chandra submits that the trial judge misapplied the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and unjustly reversed the onus of proof at trial by requiring him to present his evidence prior to the defendants presenting theirs.
[53] Rule 52.07(2) provides:
Where the burden of proof in respect of all matters in issue in the action lies on the defendant, the trial judge may reverse the order of presentation.
[54] Dr. Chandra argues essentially that because the responding parties admitted that the broadcast was defamatory, the trial judge ought to have required that those parties lead their evidence first and that he be given the opportunity to present his evidence last. Mr. Bennett argues that to do otherwise prejudicially reverses the onus of proof and requires his client to prove a negative.
[55] He relies on the decision of the Supreme Court of Canada in Jerome v. Anderson, [1964] S.C.R. 291, at p. 302:
The judgment of Abbott Ld. C.J. in Browne v. Murray [(1825) 1 Ry. & M. 254, 171 E.R. 1012,] which was a ruling made during the course of the trial, appears to indicate the view that the plaintiff in a libel action has a right to choose which course he will take. The judgment reads as follows:
In actions of this nature, the plaintiff may, if he thinks fit, content himself with proof of the libel, and leave it to the defendant to make out his justification, and then the plaintiff may, in reply, rebut the evidence produced by the defendant. [Emphasis added.]
[56] In my view, this ground of appeal cannot succeed. First, r. 52.07(2) applies only “where the burden of proof in respect of all matters lies on the defendant”, and even then its language is discretionary.
[57] Second, the burden of proof here on “all matters” did not lie on the responding parties. The moving party concedes he had a burden minimally, in relation to the libel, to prove the broadcast, that he was the subject of the broadcast, and that the words were defamatory of him. In addition, the moving party claimed damages for the invasion of his privacy. The burden of proof for this claim was his alone.
[58] Finally, this was not simply a case of libel where the only defence was justification: the claim was also defended on the basis of fair comment, responsible communication and qualified privilege.
[59] As such, Jerome does not assist the moving party.
[60] During the course of argument, Mr. Bennett provided a copy of the English Court of Appeal’s decision in Beevis v. Dawson et al., [1956] 3 W.L.R. 1016. At p. 1021, Singleton L.J. quotes the same passage from Browne v. Murray quoted above in Jerome. He then states:
I venture to doubt whether there is a hard and fast rule either way. The authorities seem to me to show that the practice is based on general convenience. It must depend, of course, on the issues which are raised; obviously it must depend upon the pleadings in the case in which the issues are set out. If publication is admitted and justification is set up as a defence, the plaintiff is entitled to say that the onus is upon the defendant; that it is for him to prove his case.
[61] Counsel for the moving party relied on this passage and argued that the trial judge erred in failing to reverse the order of evidence. Yet in Beevis, the court continued:
In most cases there are other pleas, and the question arises as to what is the most convenient way of dealing with the matter in the interests of justice, in the interests of the parties, and from the point of view of the court. Those interests are really all the same. If, after hearing submissions, the judge decides that one course is preferable to another, his decision should in general be treated as final.
[62] In my view, the trial judge’s decision was a discretionary one that is entitled to deference. This was not only a libel case but also a tort case where the moving party bore the onus of proof.
[63] Next, the moving party takes issue with certain of the trial judge’s evidentiary rulings. He argues that the prejudicial impact of such evidence outweighed its probative value and confused the jury.
(a) Read-ins from Examination for Discovery
[64] The moving party objected to the responding parties reading in what they considered to be admissions from his examination for discovery. They argue that permitting the CBC defendants to do so contravened the rule in Browne v. Dunn.
[65] The answer to this argument is that the Rules permit the reading in of portions of an adverse party’s examination for discovery: see r. 31.11(1). The trial judge was alive to the moving party’s concern that the read-ins which had not been put to him while in the witness box not be used to impeach him. The trial judge instructed the jury accordingly. That charge was the last thing the jurors heard; the fact that Dr. Chandra had completed his evidence weeks earlier while the read-ins were entered into evidence as part of the responding parties’ case is simply a reality of court practice in long trials. We are entitled to assume that the jury followed the instruction it was given by the trial judge, and there is no issue raised about the content of that instruction.
[66] Finally, the moving party argues that it was “unfair” to allow the read-ins where he had no opportunity to respond by way of comment or explanation. I note in his reasons on the ruling, reported at 2015 ONSC 8140, the trial judge said:
[T]o the extent that Dr. Chandra considers that he is prejudiced by any of these read-ins addressing matters which he feels he should have had the opportunity to address at trial and did not – because he assumed when he sat down, having concluded his evidence, that the evidence of this nature would not be tendered by the CBC, I will certainly entertain a request by Dr. Chandra for the opportunity to give evidence in reply.
[67] Not having taken advantage of that opportunity afforded would, in my view, be dispositive of this ground of appeal.
(b) Exclusion of Evidence
[68] Dr. Chandra argues that the judge erred by the exclusion of a Corporation Profile Report confirming the existence of K.R. Marketing Inc. As the responding parties have noted at para. 46 of their factum:
Dr. Chandra attempted to introduce the K.R. Marketing Report only once, and through a witness who had never seen it ... In any event taken at its highest, the K.R. Marketing document was relevant to damages only and thus had no impact on the jury verdict.
[69] Dr. Chandra further argues that the trial judge erred in failing to permit Dr. Khamis to give opinion evidence. Dr. Khamis was a participating expert witness. He had worked on one of the scientific papers in issue. He was permitted to testify in that capacity. Because he had not filed an expert’s report, as is required by r. 53.03, he was not permitted to give opinion evidence. The trial judge was simply adhering to Rules of Civil Procedure and it was not an “error” to do so.
[70] The moving party lists thirteen errors in the jury charge in his proposed notice of appeal. The notice alleges that the charge misapprehended or misstated just about every area of the law involved in this trial: burden of proof, the defence of justification or truth, the defence of responsible journalism, the defence of fair comment, the concept of malice in defamation law, and the tort of intrusion upon seclusion. Most of these grounds were not pursued either in the moving party’s factum or in oral argument. I have addressed those that were.
[71] Before I begin to address these grounds, I emphasize again the high threshold required to set aside a jury verdict. Appellate review of a jury charge takes a functional approach whose goal is to ensure that juries are properly, not perfectly, instructed. A new trial is not to be ordered unless the error results in a “substantial wrong or miscarriage of justice”: Berthiaume-Palmer v. Borgundvaag, 2010 ONCA 470, 273 O.A.C. 397.
[72] The moving party argues that the charge was “too long and too confusing”, and that the jury may not have understood it. These general and bald assertions do not assist the moving party.
[73] The charge was some 81 pages long. Considering that the trial proceeded over some 54 days (plus two days of jury deliberations), it is difficult to find fault with the charge merely on the basis of length.
[74] Counsel complains that he only received the draft charge from the trial judge after midnight when he had already gone to bed. He complains he did not have sufficient opportunity to review the charge and consider objections before it was delivered to the jury. The answer to this objection is self-evident. Counsel was in the courtroom when the charge was delivered and had the opportunity to take any objection he had to the charge at that time. He did not do so.
[75] Dr. Chandra further argues that the trial judge erred in allowing the defence of justification or truth to go to the jury. He argues that because neither the expert for Dr. Chandra nor the expert for CBC were able to say that Dr. Chandra’s conduct had been fraudulent, there was no evidentiary basis to support the defence of truth.
[76] It seems to me that, as the trial judge noted in his costs disposition, there was ample evidence to support the jury’s verdict. It is wrong to say that because the experts were unable to say whether or not Dr. Chandra committed fraud that it was not open to the jury to find he did. All the experts were saying in this respect was that they could not speak to Dr. Chandra’s state of mind. The experts’ opinions were not the only evidence of fraud. It was for the jury to find on the whole of the evidence whether Dr. Chandra had committed scientific and/or academic fraud. This was the ultimate issue.
[77] The moving party also submits that, during the jury charge, the trial judge unfairly admonished his counsel for purportedly misstating the law. I see no admonishment or criticism in the charge, let alone improper criticism. The trial judge was clarifying the law and the evidence. He did not suggest that counsel intentionally misled the jury. He merely corrected any incorrect impressions or understandings that the jury might have been left with following counsel’s closing argument.
[78] Next, Dr. Chandra submits that the trial judge failed to adequately draw to the attention of the jury the seriousness of the documentary’s content and its consequences for Dr. Chandra. He says that the trial judge failed to instruct the jury of the “inherent probabilities or improbabilities” in the evidence. In my view, the trial judge properly instructed the jury on the single burden of proof that exists in civil proceedings: proof on a balance of probabilities. He told the jury that he was “not suggesting that [they] should be unmindful of the seriousness of the allegations that have been made…. But the standard of proof is a balance of probabilities.” This portion of the charge informs the jury that they should consider the seriousness of the allegations against Dr. Chandra in the documentary in the context of the standard of proof in civil trials.
[79] Dr. Chandra further complains that the trial judge failed to summarize his evidence despite summarizing the evidence of other witnesses. This, he says, created an impression with the jury that Dr. Chandra’s evidence was less important than that of other witnesses.
[80] The trial judge reviewed the evidence from p. 53 to p. 69 of his charge. Dr. Chandra was in the witness box for 13 days. As I read the charge, Dr. Chandra was afforded as much “print” as the other witnesses. The charge did not so much review the evidence of the witnesses as remind the jury of who the witnesses were and what their evidence was about. At the end of his charge, the trial judge read to the jury the summaries that counsel had prepared that set out the respective positions of their clients in relation to the issues. He began with the position of the CBC defendants and then moved on to the position of the plaintiff. It was Dr. Chandra’s position that was last heard by the jury, and that position was put to them in the way his counsel had framed it. This was the last instruction – other than responses to questions, which are not in issue – that the jury heard.
[81] The complaints about the jury charge are without merit. There was no unfairness to Dr. Chandra.
[82] The simple fact of the matter is that the jury did not believe him.
[83] In my view, this appeal is devoid of merit and cannot succeed.
[84] While there is little if any prejudice that arises from the three month delay in filing the notice of appeal, the overall prejudice to the respondents informs the justice of the case ground. Here, the prejudice to the responding parties if an extension is allowed is that they lose the finality of the jury’s verdict.
[85] The matters that gave rise to this action go back many years. Dr. Chandra retired from Memorial University in 2002. The allegations that formed the subject matter of the broadcast preceded that date by years. The statement of claim was issued nine years before the trial started. The litigation has been hard fought throughout. There has been delay and foot-dragging on Dr. Chandra’s part since the jury delivered its verdict. There was resistance to approving the form of judgment – an uncomplicated judgment that simply dismissed the action. There was resistance to the trial judge fixing costs and a request that they be assessed and, when that did not find favour, a request for the dockets of counsel for the responding parties. The date for the costs submission was adjourned several times.
[86] As indicated earlier in these reasons, Dr. Chandra listed his condominium for sale three days post-verdict. There was a second attempt later by Mr. McMackin to place a further mortgage against that same condominium despite the agreement Dr. Chandra had made with the responding parties after he had listed the property for sale.
[87] Mr. McMackin’s evidence was that he’d been approached by Dr. Chandra seeking his assistance to obtain a loan. Mr. McMackin put a mortgage on the property, in the name of a corporation he wholly owned, and then made some efforts to obtain loan monies for Dr. Chandra. The idea was that if Mr. McMackin was successful in obtaining financing for Dr. Chandra, the mortgage would simply be assigned to the new lender. Dr. Chandra did not inform Mr. McMackin that he had entered an agreement whereby he was precluded from further encumbering the property absent the consent of the CBC defendants.
[88] So far as is known, this condominium is the only asset Dr. Chandra owns in Ontario. He has refused to disclose any information at all about his finances. He has not claimed impecuniosity. He has attempted to deal with his only known Ontario asset twice since the verdict. The CBC defendants have a costs order against Dr. Chandra in the sum of $1,614,000.
[89] Dr. Chandra has consented to an order requiring that he post security for costs in the sum of $166,369.90 in the event he is granted an extension of time to file his notice of appeal. He refuses to post any part of the trial costs award.
[90] In light of Dr. Chandra’s conduct, granting the extension of time (assuming I was to deny the responding parties’ cross-motion, as Dr. Chandra suggests) would put at even greater risk the ability of the responding parties to enforce the trial costs award.
[91] Lastly, I consider the justice of the case. I am of the view that Dr. Chandra has not been candid with the court. He has misrepresented the nature of his representation by counsel. He has not given any credible explanation for why he did not and could not file a notice of appeal within the 30-day appeal period. He clearly knew on this record that there was such a deadline but ignored it and proceeded on the basis that when he was ready, he would simply apply for and receive an extension of time. He is a sophisticated litigant.
[92] All during this time, he was represented by experienced counsel who were taking instruction from him on a myriad of related issues – yet no notice was filed.
[93] In my view, the justice of the case requires that this application be dismissed and I so order.
[94] The responding parties brought a cross-motion for security for costs and lifting of the automatic stay in the event an extension of time was granted. Because that motion was dismissed, it is unnecessary to deal with the cross-motion.
[95] The amounts sought by the responding parties are substantial: roughly $98,000 on a full indemnity basis and $74,000 on a partial indemnity basis.
[96] The moving party argues that the costs of both motions should be no more than $5,000 and cites a number of decisions of this court on similar motions where costs in the amount of $5,000 were awarded.
[97] It goes without saying that each case falls to be decided on its own particular facts. The record in this case was voluminous. The respondents’ record was four volumes totalling some 1141 pages. Some of that material related to the cross-motion that I concluded was unnecessary to deal with in view of my decision on the extension motion. Most of it, however, was relevant to the issues, and particularly to the merits of the appeal that I had to consider.
[98] There is no basis upon which to award full indemnity costs for this motion. In addition, the $74,000 partial indemnity amount sought is simply too high, even for this motion. However, the costs should certainly be more than the $5,000 suggested by the moving party.
[99] This has been hard fought litigation. While there is nothing wrong with that, it does come with a price. There was an examination of a non-party witness, the necessity of a motion to compel the moving party to attend for cross-examination, and the failure of the moving party to attend scheduled appointments on several occasions to name just a few.
[100] In my view, the sum of $35,000 for the costs of this motion is a reasonable sum in all the circumstances. I award costs to the respondents fixed in the sum of $35,000 inclusive of disbursements and HST.
“J. MacFarland J.A.”