DATE: 20060406

DOCKET: C41786

COURT OF APPEAL FOR ONTARIO

RE:

WAYNE GATES and GARY MARTIN (Plaintiffs/Respondents) – and – THE STANDARD (A DIVISION OF HOLLINGER CANADIAN NEWSPAPERS, L.P.), HOLLINGER CANADIAN NEWSPAPERS, L.P., CLYDE WICKS, DOUG FIRBY, GLENN MIDDLETON, PETER BAILEY, BILL CURRIE, CHRIS PEW, NOREEN STUBBERT, HAROLD STUBBERT, BARB FURLANETTO, ELI LEVANONI and GERI SANSON (Defendants/Appellants)

BEFORE:

LASKIN, CRONK AND LANG JJ.A.

COUNSEL:

Charles M. Campbell and Kumail Karimjee

for the appellants

Peter I. Waldmann

for the respondent

HEARD & RELEASED ORALLY:

March 29, 2006

On appeal from the judgment of Justice R.T. Patrick Gravely of the Superior Court of Justice, dated April 13, 2004 made at St. Catharines, Ontario.

E N D O R S E M E N T

[1] The appellants, Harold and Noreen Stubbert, raised several grounds of appeal in relation to each respondent.

a. The respondent Wayne Gates

[2] We did not call on counsel for the respondents on the findings of liability and damages in favour of Mr. Gates. In our view, the trial judge correctly applied the law of justification, fair comment, qualified privilege and malice to facts that were largely undisputed and were defamatory.

[3] We see no error in the trial judge’s liability finding. We have a very narrow jurisdiction to interfere on a general damages award in a defamation action, and we are not persuaded that we have any ground to exercise that jurisdiction in this case.

b. The respondent Gary Martin

[4] The case against the respondent Martin is based on Harold Stubbert’s untrue statements to the reporter that Mr. Martin timed women’s washroom breaks. In respect of Harold Stubbert’s liability, the trial judge also correctly applied the law on the defences Mr. Stubbert raised. We see no error in the finding of liability against Harold Stubbert.

[5] Nor do we see any basis to interfere with the damages award against Mr. Stubbert. The defamatory statements essentially suggested that Mr. Martin contributed to a poisoned work environment, and were sufficiently serious to justify the amount of damages awarded by the trial judge.

[6] We take a different view of the finding of liability against Noreen Stubbert. The trial judge concluded that she “participated” in the defamatory statements concerning the timing of women’s washroom breaks. It seems to us that, on the record, this finding of joint liability is unsupported.

[7] Before the article was published, the reporter did not ask Noreen Stubbert about the timing of washroom breaks, nor did she volunteer any information about this matter. She did tell her husband about it at some undetermined time earlier, but she had no forewarning or knowledge that he, in turn, would discuss this matter with the reporter. The purpose of Harold Stubbert’s interview was to discuss his wife’s sexual harassment complaint. Mr. Stubbert, of his own accord, raised the timing of women’s washroom breaks during that interview. Noreen Stubbert, therefore, is not legally liable for her husband’s defamatory statements about this matter.

CONCLUSION

[8] Accordingly, the appeal is allowed in part. Paragraph two of the judgment is varied to award damages against Harold Stubbert only. The respondent Martin’s action against Noreen Stubbert is dismissed. The appeal on liability and damages is otherwise dismissed.

[9] The parties may make written submissions on the appropriate cost orders at trial and on appeal.