COURT OF APPEAL FOR ONTARIO

CITATION: Simao v. Hankook Ilbo, 2012 ONCA 175

DATE: 20120321

DOCKET: C52851

Sharpe, Armstrong and Watt JJ.A.

BETWEEN

Yolanda Simao

Plaintiff (Appellant)

and

Hankook Ilbo & The Korea Times Limited and Soh Young Jeong

Defendants (Respondents)

James F. Diamond, for the appellant

Bruce G. McEachern, for the respondents

Heard: February 8, 2012

On appeal from the judgment of Justice Randall S. Echlin of the Superior Court of Justice, sitting with a jury, dated October 12, 2010.

Sharpe J.A.:

[1] In this libel action, the jury found that the newspaper articles upon which the appellant sued did not defame the appellant. The appellant concedes that the trial judge properly instructed the jury on the issue. However, she asks us to overturn the jury’s verdict as perverse and to enter judgment in her favour.

[2] For the following reasons, I conclude that the appellant has not met the high threshold of demonstrating that the verdict was “so plainly unreasonable and unjust…that no jury reviewing the evidence as a whole and acting judicially could have reached it”: McCannell v. McLean, 1937 1 (SCC), [1937] S.C.R. 341, at p. 343.

[3] Accordingly I would dismiss the appeal.

FACTS

[4] The appellant and her husband are the principals of an immigration consulting firm, ProLegal Consulting Group. The respondent Hankook Ilbo & The Korea Times Limited operate a Korean-language newspaper, the Korea Times Daily, for which the respondent Soh Young Jeong is a reporter. The Korea Times claims a circulation of over 100,000 in the Canadian Korean community.

[5] On February 17, 2007, Korea Times published the first of a series of articles written by Jeong, chronicling the plight of 24 South Korean truck drivers who claimed that a company, ULSC, and its principal, Geunsuk (Justin) Park, had induced them to come to Canada to work. According to the article, the workers paid ULSC substantial fees to arrange the work permits. The Korea Times reported that despite Park’s representations and inducements, the workers never found employment in Canada. Simao was mentioned in these articles.

[6] Simao, who does not speak Korean, was retained by Park. He asked her to help find a trucking firm that would fulfill the requirements of the Government of Canada’s Foreign Worker Program. Simao contacted several trucking firms and eventually reached Bill Kalbhenn of Highland Trucking who expressed interest in hiring the Korean drivers. Simao submitted an application for a positive “labour market opinion” (“LMO”) to Human Resources Skills Development Canada (“HRSDC”) on behalf of Highland Transport. An LMO was required to enable the truck drivers to obtain the necessary work permits. The application prepared by Simao included 24 HRSDC employment contract forms signed by Kalbhenn on behalf of Highland. HRSDC provided Simao with the required LMO. Once Simao had obtained the LMO, her formal involvement ended and she was paid a fee of $60,000. Highland required the drivers to have English language proficiency, a commercial driver’s licence, two years’ experience and a US FAST card. As of the date of the article, none of the truck drivers had been employed by Highland as the company considered their English language proficiency to be inadequate.

[7] While four subsequent articles were published, it is common ground that this appeal turns on the February 17, 2007 article entitled “Facing Prospects of becoming an Illegal Alien due to Broken Promise of Employment” Because of its central importance to this appeal, I set out that article in its entirety.

Facing Prospects of becoming an Illegal Alien due to Broken Promise of Employment

Korean Truckers report an Immigration Consulting Firm

Consulting fee plus driving school tuition paid but employment is put off day by day

An Immigration Consulting Firm operated by Koreans was reported to the regulating body of the Immigration Consultants for getting a significant amount of fees but not fulfilling the promise of employment as a condition of paid consultation.

Mr. Geunsuk Park (a.k.a. Justin) has been operating a company named “ULSC Immigration Inc.” together with his sister in Seoul as a headquarter and a branch in Toronto. They received more than $13,000 in average from each applicant on the condition they would obtain a working visa and a job. In addition, they also received license procuring fees. The employment positions were truck driver, home caregiver and mechanic. The number of applicants is estimated to be approximately 60.

Mr. Jiho Kim (fictitious name), who was a truck driver in Korea, and tens of other victims who could not find jobs a few months after being issued the working visa and are about to become illegal, filed complaints about Mr. Park and his legal representative, Yolanda Simao, to the self-regulating body of immigration consultants, the Canadian Society of Immigration Consultants (CSIC).

Mr. Kim, who filed the complaints to the CSIC as the representative of the victims, said, “It was not easy to complain to the police to obtain an investigation because the immigration status of all victims is insecure. After finding out that Simao, who signed the various contracts, is a member of the regulating body, we have spent a long period of time anguishing and eventually decided to file the complaints. As the situation develops we will report the case to the police as well.”

After being told at the Employment Presentation given by ULSC held in Seoul that once employed as a truck driver in Toronto, his yearly income of $50,000 would be guaranteed and the benefit of permanent residency or better comes with it. Mr. Kim paid 7,800,000 won. 5 to 6 months later, Mr. Park advised Mr. Kim to come to Canada with his family. Mr. Kim arrived at Toronto in July last year together with his family members and obtained a working visa in Buffalo, U.S.A. in October last year.

Meanwhile, Mr. Kim obtained an Ontario Truck Driver’s License (AZ) from “A Driving School” which was introduced to him by Mr. Park. The tuition was $6,000 for 40 hours of training. “It was quite a lot of money, but I and others were full of hope because we were told that we would be able to earn $18 an hour from the H trucking company in Toronto once we are licensed,” said Mr. Kim.

Empty Employment Promise

However, there is still no prospect of any job even 4 months after they obtained the working visa. The representative of the above trucking company said in a telephone conversation with this newspaper on the 16th, “I met with Korean students of the driving school several times and told them through Simao that I will hire them once they are qualified. But most of them have communication problems and were without a FAST Card (Free And Secure Trade Card) which is necessary to enter the U.S. freely and these made the employment situation difficult. I have never entered into the employment contract which they insist that they received. The signature alleged to be mine on the contract must have been faked.”

Mr. Kim insisted, “The contract was made without an interview, not to mention knowing the location of the company. Mr. Park promised to open a separate Korean department with a Korean interpreter in the trucking company since there were tons of prospective Korean drivers in the trucking company in order to create a working environment without worrying about the language.”

To this, Mr. Geunsuk Park explained, “We obtained the employment contract from the company for the applicants based only on documents, such as resumes and employment history certificates, because of the long distance. But after the working visa was issued, the employment promise could not be kept because their lack of communicating ability became an issue.” He continued, “The contracts were made by Simao on behalf of the company and the applicants. A 100% refund is warranted if the employment is not successful within one month.” According to Mr. Park, there are 40 people who obtained the working visa already and 10 more are waiting for the visa. There are 10 students enrolled in the driving school.

“The promise of employment within one month has been given repeatedly for a few months. Someone even got a promissory note from Mr. Park, but it was useless. There are still many people with a “Canada Dream” in the processing stage in Korea. Further damages should be stopped,” the victims insisted in strong voices.

The victims who range between mid-forties and early fifties in age say in one voice that they are unable to work, their children cannot enroll in Canadian schools, they have financial difficulties and some even have family problems. They further voiced that all they want is to work legally in this country through whatever route possible.

[8] The Korea Times eventually published a “correction piece” two years later:

This is to clarify The Korea Times Daily articles that were published on February 17, 21, and 23, 2007, which focused on Korean truck drivers and their immigration issues.

The article stated that Ms. Yolanda Simao was the legal representative of Mr. Park, Geun Seok and ULSC. This was not correct. Although this was mentioned in a phone conversation with Mr. Park on February 16, 2007, Ms. Simao asserts that she was not retained or engaged by the truck drivers, and acted solely for ULSC.

Ms. Simao did not sign any employment contracts between the truck drivers and the truck company H, as incorrectly mentioned in the news articles.

The Canadian Society of Immigration Consultants (CSIC) concluded last March that she did owe some duties to the drivers, and did not provide complete service to them.

TRIAL AND JURY VERDICT

[9] Simao’s position at trial was that the article leaves a reader with the impression that she was instrumental in a scheme to take advantage of the vulnerable Korean truck drivers and that she was guilty of fraud or forgery.

[10] Simao contended that Jeong had written the article in a mad rush to avoid being “scooped” by another paper and that she had failed to conduct an adequate investigation. Particular attention was given the quotation attributed to the “representative” of Highland, Bill Kalbhenn. Jeong had called Kalbhenn as he was catching a plane. He asked Jeong to wait until his return to Toronto so he could review the HRSDC documents that she claimed were Highland employment contracts. However, Jeong pressed on with the interview, and quoted Kalbhenn (as an unnamed representative of Highland) as saying “I have never entered into the employment contract which they insist that they received. The signature alleged to be mine on the contract must have been faked”. On cross-examination, Jeong admitted that these were not his exact words. A tape recording of the conversation showed that Kalbhenn denied signing employment contracts with the workers. Although he said that there must have been “some funny work behind the scenes”, and that “somebody’s added or changed or altered or something like that”, he did not say that his signature had been “faked”.

[11] Simao advanced a substantial claim for general, aggravated and punitive damages. Before this court, her counsel conceded that the respondents had succeeded in undermining the evidence and the expert opinion Simao submitted to support the claim that she lost income between $194,625 and $360,389.

[12] The respondents’ position was that the focus of the article was on Park and ULSC as the culprits in a scheme that left the South Korean truck drivers stranded in Canada without employment. The respondents argued that although the article mentioned Simao, it did not directly accuse her of anything more than having been Park’s “legal” advisor.

[13] The respondents denied malice and raised the defences of fair comment and qualified privilege. They also argued that the damages claimed were excessive.

[14] The trial judge ruled that, as a matter of law, the words of the article were capable of bearing the defamatory meaning alleged by Simao. The trial judge charged the jury with deciding whether reasonable men and women, reading each article as a whole, would “understand the words to convey a meaning that discredits the plaintiff”. Simao concedes that the trial judge properly charged the jury in this regard.

[15] The trial judge gave the jury a succinct explanation of the parties’ positions on this issue.

[16] Simao’s position was summarized as follows:

The article left any reader with the impression that:

(a) The plaintiff played an official role in inducing a group of vulnerable Koreans to leave their native Korea for the illusory promise of better employment opportunities in Canada;

(b) The plaintiff allegedly represented all sides in the preparation and filing of all contracts between the Koreans and Highland; and

(c) The plaintiff was responsible for preparing the forged employment records.

[17] The respondent’s position was summarized in the following manner:

The defendants say it is not clear that the articles attacked the plaintiff. They say that the basic premise of the libel law is that the publication complained of must be of, and concerning, a plaintiff. They say that when a reader reads the publication one time, or at most two times, it might be very clear that it is the plaintiff who is being attacked. The defendants say that this is not so in these articles, and that there was no defamation.

[18] The jury was asked to answer a series of questions. We do not have the verdict sheet given to the jury but the questions may be gleaned from the trial judge’s instructions:

1. Are the articles complained of defamatory of the plaintiff?

2. If yes, were the articles written and published by the defendant with malice?

3. If there was no malice, is the defence of fair comment available to the defendant?

4. If there was no malice, is the defence of qualified privilege available to the defendant?

5. What amount of general damages, including loss of income if proven, should be awarded to the plaintiff?

6. Should the plaintiff be awarded punitive and/or aggravated damages, and if so, in what amounts?

[19] However, by agreement of the parties, the jury was instructed that if the answer to the first question was that the articles did not defame Simao, they should stop at that point without answering the remaining questions.

[20] The jury found, in answer to the first question, that the articles complained of are not defamatory of the plaintiff. Following the instruction that had been given, the jury did not answer any of the remaining questions. The trial judge dismissed the action in accordance with the jury’s verdict.

ISSUES

1. Is the jury’s verdict finding no defamation perverse?

2. If the jury’s verdict is perverse, what is the appropriate remedy?

ANALYSIS

1. Is the jury’s verdict finding no defamation perverse?

[21] The standard of review for findings of fact made by a jury is well-established. In Jones v. Niklaus, 2008 ONCA 504, at para. 26, my colleague Armstrong J.A. stated:

Before addressing the above issues, it is necessary to consider the standard of review of findings of fact made by a jury. In Deshane v. Deere & Co. (1993), 1993 8678 (ON CA), 15 O.R. (3d) 225 at 231 (C.A.), Lacourcière J.A. (dissenting on other grounds) said:

The principles governing appellate review of the verdict of a jury have been laid down by the Supreme Court of Canada in McLean v. McCannell, 1937 1 (SCC), [1937] S.C.R. 341 at p. 343, [1937] 2 D.L.R. 639, so that ‘the 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’. The principle has been re-affirmed in Vancouver-Fraser Park District v. Olmstead, 1974 196 (SCC), [1975] 2 S.C.R. 831 at p. 839, 51 D.L.R. (3d) 416, where de Grandpré J., delivering the judgment of the court, stated:

All of the relevant cases make it abundantly clear that jury verdicts must be treated with considerable respect and must be accorded great weight. This does not mean however that they should be regarded with awe.

It was in that case also that the court, at p. 836, rejected the suggestion that a verdict should be ‘perverse’, implying moral turpitude, before it could be set aside. Instead, the court adopted a test that examines whether the evidence so preponderates against the verdict as to show that it was unreasonable and unjust. There is a further principle enunciated by Laskin C.J.C. delivering the majority judgment in Cameron v. Excelsior Life Insurance Co., 1981 168 (SCC), [1981] 1 S.C.R. 138 at p. 142, 119 D.L.R. (3d) 257, and it is that jury’s findings are ‘entitled to rational appreciation and to be regarded in as favourable a light as the evidence supporting it’.

See also Barker (c.o.b. Mike Barber Auto Sales) v. Zurich Insurance Co. (2001), 2001 24144 (ON CA), 140 O.A.C. 358 (C.A.) at para. 26; and Plester v. Wawanesa Mutual Insurance Co. (2006), 2006 17918 (ON CA), 269 D.L.R. (4th) 624 (Ont. C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 315.

[22] The reluctance to interfere with jury verdicts is especially pronounced in defamation actions, particularly on the question of whether or not the words complained of bear defamatory meaning: see Raymond E. Brown, Brown On Defamation, 2d. ed., looseleaf (Toronto: Carswell, 2010), at para. 24.2, quoting Scrutton L.J. in Broome v. Agar (1928), 138 L.T. 698 (C.A.), at p. 700: “‘Libel or no libel’ is peculiarly a question for the jury; …only in the most extreme cases should the judge allow his view to override that of the constitutional tribunal”. See also Wills v. Carman (1889), 17 O.R. 223 (C.A.), at p. 225: “It is for the jury to say whether alleged defamatory matter published is a libel or not, and the widest latitude is given to them in dealing with it.”

[23] In my view, Simao has failed to surmount this high hurdle.

[24] There can be little doubt that the main target of the article and the man portrayed as being the culprit was Park. Simao is mentioned four times in the article.

[25] First, the article states that a truck driver filed a complaint to the Canadian Society of Immigration Consultants “about Mr. Park and his legal representative, Yolanda Simao”. In my view, it was open to the jury to conclude that the ordinary reader would not attribute Park’s moral culpability in the scheme to Simao simply because she was his “legal representative”. Simao concedes that the statement that a complaint has been filed is not defamatory.

[26] Second, the article states that it was Simao “who signed the various contracts” to obtain the required immigration status. Third, the article purports to quote a Highland representative (apparently Bill Kalbhenn, though he is not named in the article) stating that he told the truck drivers “through Simao” that he would hire them once they were qualified. Fourth, a quotation attributed to Park states that “[t]he contracts were made by Simao on behalf of the [trucking] company and the applicants.”

[27] At the end of the day the real question is whether the only reading of the article open to the jury is one that accuses Simao of fraud or forgery. Such a reading was certainly possible: the article states that she “made” and “signed” the contracts and that the representative of the trucking company denied signing the contracts and claimed that his signature must have been “faked”.

[28] However, in my view it was open to the jury to conclude that the ordinary reader would not read the article in that way. The general thrust of the article is that Park took advantage of vulnerable truck drivers and that the trucking company failed to live up to its legal obligations. In this context, the jury was entitled to find that the ordinary reader would read the claim of faked signatures as no more than the trucking company’s hollow excuse for reneging on its legal obligations. It was open to the jury to conclude that an ordinary reader would interpret the words of the article as meaning that there were no “faked” or forged signatures, but rather unscrupulous businessmen trying to evade their legal responsibilities at the expense of vulnerable immigrants.

[29] A lawyer, trained to read documents with forensic precision, might well read the article differently. But that is not the test. The question for the jury was to determine whether reasonable men and women of ordinary understanding – not lawyers – reading the article articles as a whole, would take the words to convey a meaning that discredits the plaintiff.

[30] The trial judge left the issue of defamatory meaning squarely with the jury. His instruction fairly explained the parties’ positions. The respondents put before the jury a possible interpretation of the article that did not defame Simao. Her claim was forcefully advanced before the jury but, in the end, the jury simply did not accept that ordinary people would understand the article to discredit her.

[31] In accordance with the established jurisprudence to which I have referred, it is my view that on this record, this court must respect and uphold the jury’s finding.

2. If the jury’s verdict is perverse, what is the appropriate remedy?

[32] As I would not interfere with the jury’s verdict, it is unnecessary for me to consider the remedy to which the appellant would be entitled.

[33] I would observe, however, that it is difficult to imagine how we could give the appellant the primary remedy she seeks, namely judgment on her claim. In this regard, it is regrettable that the jury was instructed that it was not necessary to answer the remaining questions. As a result, we do not have the jury’s complete assessment of the case. We do know, however, that the jury had the advantage of hearing and assessing both Simao and Jeong in the witness stand. The jury plainly was unimpressed by the merit of Simao’s claim. Simao was not the target of the article upon which she sued yet she advanced a very large damage claim. The jury saw the evidence in support of the most tangible element of that claim – loss of income – crumble.

[34] On this record, the best the appellant could hope for would be a new trial, and, as I would not interfere with the jury’s answer to the first question, that remedy is precluded.

DISPOSITION

[35] For these reasons I would dismiss the appeal with costs to the respondents fixed in the agreed amount of $7,600 inclusive of disbursements and HST.

“Robert J. Sharpe J.A.”

“I agree R.P. Armstrong J.A.”

“I agree David Watt J.A.”

Released: March 21, 2012