October 16, 2010
Turmel v. CBC (Dragons’ Den), 2010 ONSC 5318

Justice Lofchik clearly had fun with this one, especially when the Dragons invited the Plaintiff to “burst into flames” and told him he was “blowing air up a dead horse’s ass”. His Honour’s comment: “the treatment of Mr. Turmel by the Dragons in the broadcast segment was not kind.” Right on.

The decision is also an important reaffirmation and development of libel law. Justice Lofchik rightly dismisses the Plaintiff’s action for defamation summarily, because no Notice of Libel was served prior to the Statement of Claim.

However, he also dismisses the (unpleaded) claim “to sue CBC on a bargain it never made”. He finds the alleged bargain to be contrary to the terms of the Consent and Release form which CBC requires all its contestants to sign (also attached as “Exhibit “A” to the Reasons). In a nice new precedent in our libel law, he finds “nothing unconscionable” or “unfair” about the substantive terms of the Consent and Release which, as you see, are a sweeping and self-serving release and disclaimer of liability on the part of the program producers.

~M. Philip Tunley

The success of this motion to dismiss provides an endorsement of the procedural safeguards in the Libel and Slander Act. It also shows the usefulness of consent forms. What it does not provide of course is any new guidance on the type of communication that can constitute slander. In his opening statements, Justice Lofchik allows that the Dragon’s comments might have been insulting, but does not elaborate on whether, had the action not been statute barred, they would have been actionable.

[2] … In the segment broadcast, the panel of Dragons was, to say the least, not kind to Mr. Turmel, one member of the panel having told him she had no idea what he was talking about, another invited him to burst into flames, and a third told him he was “blowing air up a dead horse’s ass”.

Applying Ontario Civil Procedure Rules, Justice Lofchik provides some guidance on what kind of evidence is required by a respondent to a motion for summary judgment. Given the Court’s power to weigh evidence, assess credibility and draw inferences it is clearly necessary to bring substantial affidavit evidence to the motion hearing.

[20] As the responding party, Mr. Turmel, may not simply restate mere allegations contained in his pleadings. He must set out in affidavit material coherent evidence of specific facts showing that there is a genuine issue regarding a trial. It is not sufficient to say that more and better evidence will or might be available at trial. While there is an onus on the moving party to establish that there is no genuine issue requiring a trial, the case law also establishes that the respondent must “lead trump or risk losing”.

Alhtough these comments might have been admonitions in response to inadequate materials submitted by the respondent, the only critical fact however was whether or not the plaintiff had given proper notice to CBC. Mr. Turmel admitted that he had not given any such notice.

[21] Where a plaintiff complains about a broadcast from a station in Ontario, s. 5(1) of the Libel and Slander Act applies and provides as follows:

No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.

[…]

[25] Since Mr. Turmel has failed to comply with the mandatory notice provisions in the Act, his action for defamation cannot be maintained. There is no genuine issue requiring a trial in respect of any claim for defamation.

This is probably sufficient to dismiss the whole matter. However the Court goes on to consider whether the plaintiff’s unplead claim for breach of contract might reveal a genuine issue.

[30] While Mr. Turmel may view the editing of the segment which was broadcast by the CBC as unconscionable, there is nothing unconscionable about the Consent which he signed. Its substantive terms are not unfair nor is the Consent improvident for Mr. Turmel. There was no special relationship between the parties, nor any inequality of bargaining power when it was signed. In assessing the circumstances in which the contract was made, the following facts are significant:

• The Contestant Guide, which Mr. Turmel received before he attended for the taping, advised Mr. Turmel that the complete rules of the program were set out in the Consent;
• Dragons’ Den staff told Mr. Turmel to read the Consent carefully before signing it;
• Mr. Turmel had adequate time to review the Consent before his taping;
• He had opportunity to ask questions about the contract and to have it reviewed by a lawyer providing independent legal advice. He signed the Consent without asking any questions or raising any concerns;
• He made a calculated decision to sign the contract in order to participate in a taping and receive the opportunity to ask the Dragons for a $100,000 investment in his Proposal. He received what he expected.

The only cause of action actually plead was libel. This was statute barred because of the plaintiffs own conduct. Despite arguments at the motions hearing, the plaintiff failed to show any other genuine issue for trial. The Court dismissed the action with costs to CBC (Dragon’s Den).

See the whole decision online: Turmel v. CBC (Dragon’s Den)