Powless v. Smith et al., 2010 ONSC 2165

CITATION: Powless v. Smith et al., 2010 ONSC 2165

DIVISIONAL COURT FILE NO.: DC-09-137

DATE: 20100525

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J.S.C.J., FERRIER and LEDERMAN JJ.

BETWEEN:

LYNDA POWLESS

Plaintiff (Appellant)

– and –

SHIRLEY W. SMITH by her Litigation Guardian, G. SCOTT SMITH and JAMES WINDLE and 1374078 ONTARIO LIMITED

Defendants (Respondents)

Howard E. Staats, Q.C.

for the Plaintiff (Appellant)

Ian Gerald T. Smits,for the Defendants (Respondents) Shirley W. Smith, G. Scott Smith and 1374078 Ontario Limited

Peter M. Quinlan, for the Defendants (Respondent) James Windle

HEARD: at Hamilton February 24, 2010

CUNNINGHAM A.C.J.S.C.J.

1This appeal concerns the adequacy of the trial judge’s reasons. In his decision released May 20, 2009, Borkovich J. dismissed the plaintiff’s action with costs. The appellant pursued a number of grounds of appeal, but at the heart of it submits that the trial judge’s decision is devoid of analysis and completely fails to give adequate reasons. Accordingly, it is submitted, the reasons given are insufficient to enable a proper appellate review. For the reasons that follow, I agree with the submission and allow the appeal.

BACKGROUND

Background

2The appellant brought an action against the respondents for libel arising from the publication of an article authored by the respondent James Windle (“Windle”) and published in the September 24, 2003 edition of Tekawennake, a newspaper owned, edited and published by the remaining respondents and circulated on the Six Nations of the Grand River Reserve and elsewhere in Canada.

3The appellant, at all material times, was the chair of the Six Nations Cultural and Historical Association (“SNCHA”) and the article in question concerned its activities. The appellant, at trial, alleged that the statements contained therein were defamatory of her. The trial judge, after several days of trial, concluded the statements, although defamatory, were substantially true and constituted fair comment.

THE ISSUE

The Issue

4As noted earlier, the essence of this appeal is that the trial judge failed to give reasons sufficient for proper appellate review. It was argued that the trial judge did not compare, analyze or discredit any of the evidence he heard and gave no reasons why he chose one version of evidence over another.

5The respondents argue that a review by this court of the entire record would find that there is no confused or contradictory evidence regarding key issues. In that regard, they rely upon Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board 2007 SCC 41 at para. 101 which states:

Where the record discloses all that is required to be known to permit appellate review, less detailed reasons may be acceptable. This means that less detailed reasons may be required in cases with an extensive evidentiary record…

6The respondents also rely upon R. v. Sheppard 2002 SCC 26, [2002] 1 S.C.R. 869 where at para. 26 the Court stated:

The appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself.

7I am, as well, mindful of the reasons of Rothstein J. in F.H. v. McDougall (2008) 2008 SCC 53, S.C.J. No. 54 where at para. 99 he stated: “Nor is a failure to give adequate reasons a free standing basis for appeal.” And further at para. 100:

An unsuccessful party may well be dissatisfied with the reasons of a trial judge, especially when he or she was not believed. Where findings of credibility must be made, it must be recognized that it may be very difficult for the trial judge to put into words the process by which the decision is arrived at. But that does not make the reasons inadequate.

8Rothstein J. then went on to refer to the decision of McLachlin C.J. in R. v. R.E.M. 2008 SCC 51 in which she explained the difficulty in rationalizing the way in which credibility findings are made.

Analysis

9With all of that in mind, I turn to the reasons at issue. In my view, the learned trial judge properly framed the issues and adequately set out the law with respect to “truth” and “fair comment”. However, in one short paragraph (para. 14) the trial judge wrote:

Having set out the law, it is necessary to establish the facts and apply the established facts to the law. Obviously in this trial, credibility is of prime importance, and, in particular, the credibility of the plaintiff. In assessing her testimony, I have concluded that she is a strong-willed person, that she is used to running the show and is autocratic. I have concluded that she was the Board and that the other members were merely her appointees whose tenure on the board was at her will. She is a person who regards criticism of her role as chairperson of SNCHA to be an attack upon herself rather than as a criticism on the manner in which the tourism board was functioning.

10This “finding of fact” dealt almost entirely with the credibility of the appellant. Clearly the trial judge did not accept her evidence or at least found it less worthy than the competing evidence where it existed. There was no analysis of the appellant’s evidence and the trial judge did not, in my view, adequately assess her credibility. Having reviewed the record, a record which does contain conflicting evidence on important points, it seems to me it should have been incumbent upon the trial judge to analyse any competing evidence, especially where it might have impacted upon the appellant’s credibility. While I might well have come to the same conclusion as the learned trial judge, based upon all of the evidence, I am of the view that the appellant’s evidence was entitled to a more fulsome consideration, given that in some instances it was, if not wholeheartedly, at least to some extent supported by other evidence. My review of the evidence of witnesses Thomas Darnay, Steven Williams, Elaine Lickers and Paul Williams leaves me with the impression that while not always helpful to the appellant, it may in some respects corroborate her position. That in my view should have been carefully considered and explained by the trial judge.

11Let me briefly review the allegations of the plaintiff (appellant) and illustrate the evidence that might have been considered. The appellant at trial maintained that the statement in the article to the effect that the SNCHA did not submit financial reports to the Band Council or the people of the Six Nations is false. Thomas Darnay, a chartered accountant and financial advisor previously employed by the Band Council, testified that while he did not specifically recall getting records, he had no reason to believe he did not. He did say that there were some reports he did not receive, but he could not recall whether they were ultimately received.

12Steven Williams testified that he believed the statement to be false. His evidence was that Council was audited every year and that the audited reports of the SNCHA were made available to Six Nations members. Elaine Lickers, Manager of the Royal Bank of Canada on the reserve, testified that financial reports were prepared monthly and that they had to be provided to the Charity Bingo. The evidence of these witnesses was not considered in the reasons.

13The next alleged defamatory statement was that Jan Porter and her staff were forced out by the appellant. The appellant testified that this statement was false and that Ms Porter, at all times an employee of the Six Nations Council, could only have been terminated by Council, not by the appellant or the SNCHA Board. Ms Porter herself testified she sued Six Nations Council for wrongful dismissal. Steven Williams testified that he did not believe Jan Porter was ever forced out as she was a Band Council employee. Elaine Lickers testified she had “no knowledge of us forcing out any employees. It was… very difficult because the employees were Six Nations Band Council employees, yet under our - the Board direction as far as tourism went. So there was some disconnect there, and who was in – who was directing them, but I have no knowledge of any over intent to force anyone out of a position.” Again, there was no reference to this evidence in the reasons.

14The appellant submitted that the statement in the article to the effect that a large advance on an annual salary was arranged without Board approval was not supported by the evidence. She denied this in her evidence at trial and Steven Williams testified he believed that anything the plaintiff (appellant) received as chairperson she had to bring to the Board for approval. This unchallenged evidence was not considered in the reasons of the learned trial judge.

15The appellant next submitted that the statement in the article that SNCHA was suspended from the Charity Bingo Program due to irregularities in the financial records was not supported by the evidence. In her evidence in-chief the appellant stated SNCHA was never suspended from the Charity Bingo Program and that she was not aware of any “large irregularities”. In cross-examination, she conceded there was indeed a suspension, but it was due to “late reports”.

16Steven Williams, in his evidence, stated that reports to be submitted to the City or the Gaming Commission were not being supplied. Someone was then hired to correct the problem and, although there was a suspension, it was brief.

17Paul Williams testified that SNCHA was indeed suspended by the Charity Bingo due to accounting problems. Elaine Lickers, on the other hand, said she was not aware of any suspension, although she did recall the reports being late on a couple of occasions. While not significantly challenged, there was some evidence that might have been considered by the trial judge.

18The statement in the article to the effect that a change in leadership virtually derailed the entire tourism plan (The NetGain Report), the appellant argued, was not supported by the evidence at trial. The appellant, at trial, stated that the Board adopted the report and was in the process of implementing its recommendations. She stated, in evidence, she had no idea why the article’s author would say that. In this regard, Paul Williams’ evidence was somewhat equivocal. Steven Williams said they tried to implement the report, but that funding became a problem. He did not recall momentum stopping when the appellant came onto the Board, and Elaine Lickers confirmed the biggest problem with the NetGain Report was lack of capital. The plan, she said, was not derailed by the change in leadership; there simply were not the funds available to implement it. Again, some fairly strong evidence in support of the appellant’s position.

19The article in question also stated, “they don’t even keep records over there any more”. The appellant, at trial, maintained that this was simply not true and her evidence in this regard was supported by both Paul and Steven Williams. Again, this does not appear to have been considered by the trial judge when he concluded the defamatory words were substantially true and constituted fair comment.

20Finally, the appellant argued that the statement in the article that SNCHA under her leadership did not involve itself in the Marketing Collective was untrue. Her evidence at trial was clear, calling the statement inaccurate. She stated SNCHA always had a representative at the Marketing Collective. Again, there was evidence in support of the appellant. Steven Williams testified that SNCHA was involved with the Marketing Collective, but they were not always welcome, and Elaine Lickers echoed that evidence.

21There was ample evidence before the trial judge with respect to each of the alleged defamatory statements. The trial judge gave no reasons for apparently disbelieving the evidence of the appellant and in many instances, witnesses called by her. Indeed in many instances, the evidence of the appellant and her witnesses was not in conflict with other evidence. Even where there was a conflict in the evidence, no reasons were given as to why one version was chosen over another.

Conclusion

22In the final analysis, the reasons at issue are simply insufficient to enable proper appellate review. A review of the record reveals some uncontradicted evidence from the appellant and some conflicting evidence. None of this was analysed or compared and no reasons were given for discrediting it.

23Reluctant as I am, I would allow this appeal, set aside the trial judgment and order a new trial. It is conceivable that the result will be the same. A failure, however, to properly articulate how credibility concerns are resolved, constitutes a reversible error. I agree with the skepticism expressed by Doherty J.A. at para. 4 in Law Society of Upper Canada v. Neinstein 2010 ONCA 193 about the merits of arguments claiming that reasons for judgment are inadequate. Nevertheless, when the reasons are “so inadequate as to foreclose meaningful appellate review,” an error in law is committed and a new trial is required. Because, here, credibility was such an important consideration for the trial judge, there ought to have been some explanation for the conclusion the trial judge seems to have reached in that regard. To simply say, “In assessing her testimony, I have concluded that she is a strong-willed person, that she is used to running the show and is autocratic” or that “She is a person who regards criticism of her role as chairperson of SNCHA to be an attack upon herself rather than as a criticism on the manner in which the tourism board was functioning”, does not suffice.

Costs

24If the parties cannot otherwise agree as to costs of the appeal, they may make brief written submissions addressed to the Registrar of the Divisional Court in Hamilton within 30 days.

Cunningham A.C.J.S.C.J.

Ferrier J.

Lederman J.