DIVISIONAL COURT FILE NO.: 299/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. WILSON J.
BETWEEN:
TIBOR MARTINEK
Tibor Martinek, in person
Plaintiff/Appellant
- and -
YURI DOJC, EMIL WEISS, ROBERT SHONHAUSER, YAHOO! INC., YAHOO! CANADA, TEKSAVVY SOLUTIONS INC., DEUSTCHE TELECOM AG and CABLECOM GMBH
John Weisdorf, for the Respondent Yuri Dojc
Defendants/Respondents
HEARD: May 17, 2011
J. Wilson J.
REASONS FOR DECISION
Introduction
1This appeal is from a decision of Deputy Judge Mintz of the Toronto Small Claims Court made on April 19, 2010. Deputy Judge Mintz dismissed the appellant Tibor Martinek’s claim for damages arising out of the publication by the respondent Yuri Dojc of allegedly defamatory statements.
2The appellant argues that the deputy judge erred by exceeding his role as an impartial arbiter in raising the defence of qualified privilege, which had not been pleaded by the respondent or raised during the trial by either party. The appellant also submits that the deputy judge made unreasonable assumptions on the evidence, and that he incorrectly applied the test of qualified privilege.
3I conclude for the reasons that follow, that this appeal must be allowed and a new trial ordered before a different judge.
Facts
4This dispute arises out of discussions that took place within a Yahoo! Group named Reunion, which was founded and moderated by the defendant/respondent Yuri Dojc (Reunion). The purpose of Reunion was to permit its members around the world who share a common background as persons of Slovak or Czech and Jewish descent, to communicate among themselves. Access to Reunion was restricted to its members and a password was required to view the content of the messages exchanged.
5The appellant was a member of Reunion until a dispute arose among the members regarding certain conduct involving a member in Australia. The appellant and several other members were excluded from Reunion. The appellant later regained access to the site by obtaining the necessary password from a member in good standing. The content of the e-mail messages that the appellant viewed in the words of the deputy judge as an “unauthorized eavesdropper” form part of the basis of his defamation claim. Other messages of concern were sent to the appellant directly.
6In December 2007, the appellant issued a Notice of Claim against the defendants, including a number of internet service providers and members of Reunion. The Small Claims Court action was commenced in January 2008, and in May 2008 Deputy Judge Godfrey stayed the action against Yahoo! Inc. Claims against Deutsche Telecom AG, Yahoo! Canada, TekSavvy Solutions Inc., and cablecom GmbH were also settled and/or withdrawn. The only remaining defendant was Yuri Dojc.
7At the conclusion of the trial, Mintz, D.J. dismissed the matter and directed the appellant to pay Dojc’s costs.
8The trial judge concluded that there was no evidence that the messages in certain emails of concern were forwarded to a third party. Therefore, the pre-condition for defamation that the statements be published to someone other than the individual claiming to have been defamed was not met. There can be no criticism of this conclusion and the appellant did not question the conclusions reached with respect to these e-mails.
9The conclusion reached by the trial judge underpinning this appeal relates to the consideration by the trial judge of the defence of qualified privilege.
10The trial judge on his own initiative in his reasons for judgment determined that the defence of qualified privilege applied to remaining e-mails that are alleged to be defamatory and that were circulated within Reunion. Mintz D.J. states at page 3 of his reasons for judgment:
There is no evidence the e-mails were published or transmitted outside the Reunion group. The question before this Court, at this point, is whether the e-mails can be described as having a qualified privilege status, and therefore are not actionable as part of a libel action.
11The deputy judge quoted from Bruce Feldthusen’s Tort Law to establish the nature of qualified privilege as a conditional immunity that applies where “certain communications for certain specific purposes are excused from liability for defamation, if made without malice.”
12The deputy judge found that the members of Reunion were “entitled to react” to the plaintiff’s initiation of a legal action and that, in the context of the lawsuit, even if the statements were defamatory they were protected by the defence of qualified privilege.
13Mintz D.J. then concluded at page 7 of his reasons, without the appellant having had an opportunity to make submissions about whether the defence of qualified privilege applied, or to call evidence relevant to the defence, that:
[t]he e-mails were not generated by malice, nor were they malicious. Although they may have offended the sensitivity of Mr. Martinek, they are not actionable as being malicious. The Court finds the said e-mails communicated, attributed to the Defendant, have a qualified privilege, and therefore the Plaintiff has failed to prove his Claim on a balance of probabilities.
Reliance on an unpleaded defence
14The opportunity for parties to adduce evidence and make submissions in respect of an issue underpins and is fundamental to the right to be heard. A denial of natural justice may occur if such an opportunity is not afforded to the parties: see e.g. Canadian Imperial Bank of Commerce v. Prasad et al., 2010 ONSC 320, at para. 10.
15In Brighton Heating & Air Conditioning Ltd. v. Savoia et al. (2006), 79 O.R. (3d) 386 (Div. Ct.), Quinn J. concluded that the trial judge had unfairly awarded a form of relief that had not been pleaded. In that case, the deputy judge raised the applicability of a particular statute for the first time during closing arguments at trial. Although the agent for the appellant objected, the deputy judge concluded that legal obligations arose from the statute “regardless of whether or not it is pleaded” and on this basis the deputy judge awarded judgment against the appellant.
16Justice Quinn made the following observations at para. 40:
I agree with the proposition that, in the Small Claims Court, a liberal, non-technical approach should be taken to pleadings. Therefore, unpled relief may be granted (and an unpled defence allowed) so long as supporting evidence is not needed beyond what was adduced at trial, or what reasonably should have been adduced, in support of the relief (or defence) that was pled; and, of course, provided that, in all of the circumstances, it is not unfair to grant such relief (or allow such a defence).
17The Divisional Court allowed the appeal as the defendant had not had an opportunity to respond to issues raised by the trial judge. Quinn J. concluded on the facts of that case that the unfairness raised to the level of a “substantial wrong of miscarriage of justice” (para. 45), and a new trial was ordered to provide the appellant the opportunity to properly respond to the argument.
18I conclude that the Brighton principles apply to the facts of this case. The trial judge disposed of the case on the basis of the defence of qualified privilege, which was not pleaded or raised by the defence and was not discussed during submissions. The appellant had no opportunity to call evidence of malice to rebut the defence, if it in fact applied.
19Consequently, at first blush, the appropriate remedy is to have the matter sent back for a new trial pursuant to ss. 134(1)(b) and 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
20However, counsel for the respondent argues that, even if the trial judge was incorrect in considering and applying the defence of qualified privilege, a new trial is not necessary as it is clear from the record that the appellant has not proved the prerequisite elements of defamation.
21At the conclusion of argument on the appeal, I allowed the parties to make submissions in writing to this Court on the following two questions, which were raised by the parties during argument in this appeal but not specifically canvassed by the trial judge:
Whether the material in question was “published” when it was circulated to a limited and private group, which required a password to access the site; and
Whether the appellant, as a “trespasser” to the site after being banned from Reunion, is precluded from relying on documents on the site as evidence of defamation after the date of his expulsion.
Are the elements of a defamation case made out?
22The three elements that must be proved in order to make out a case in defamation are:
That the words refer to the plaintiff;
That the words have been published to a third party; and
That the words complained about are defamatory to the plaintiff.
23When the three elements of defamation are established, the law presumes that the words are false and the plaintiff suffered general damages. See: Grant v. Torstar Corp., 2009 SCC 61, at para. 28.
24In the present case, it is not disputed that the particular statements complained about were made in reference to the plaintiff. The issues are whether the words complained about were defamatory in nature, and whether the words were published.
Was the content of the statements defamatory?
25A statement will be defamatory in law where it tends to lower the reputation of the plaintiff in his or her community in the estimation of “reasonable” persons.
26The court may consider whether the words were reasonably capable of being defamatory in the view of reasonable members of the class of persons to whom the publication was directed. Courts will consider the context of the audience and may adopt a ‘common sense’ perspective. As stated by Peter A. Downard in Libel, 2nd ed. (Markham: LexisNexis, 2010), “The law of defamation is a creature of its time and social context, perhaps more than any other area of the common law. Whether words are defamatory must be viewed with today’s eyes” (at 34).
27In the present case, the deputy judge did not specifically address whether the statements complained about were capable of defamatory meaning and appears to have assumed that they were, as he determined the case based upon the defence of qualified privilege.
28Generally, the e-mails complained about referred to the fact that the plaintiff had initiated legal proceedings with regard to his treatment by the group. For example, the deputy judge quotes from Exhibit 3, an e-mail sent by Dojc to the group members:
The extreme situation of the Court proceedings, in which we are finding ourselves at the moment, costs an enormous amount of time, energy and money. These will increase as the Court proceedings continue, and is an exact antithesis of what we have sought to establish this website [sic]. If there is anyone amongst you who could persuade Tibor Martinek, even at this late stage, to drop his lawsuit, it would certainly be beneficial to all of us.
29Additional statements to which the appellant objects include references that he is “not normal in the head”, that he is a “psychopath”, a “score settler”, a “Mafioso” and a “harasser”.
30Some of the statements that the appellant argues are defamatory in nature appear to be relatively innocuous expressions of opinions or provision of information to members of Reunion, including the communication outlined in paragraph 28. However, the comments referred to in the paragraph 29 above appear to clearly meet the test of a defamatory statement when the statements are viewed through the lens of the reasonable man.
Was the material published?
31Proof of publication is an essential element in an action for defamation. It is the foundation for the cause of action and the burden of proving publication lies with the plaintiff: Gaskin v. Retail Credit Co., [1965] S.C.R. 297. If the defamatory material was not “published” within the meaning of the law, the plaintiff’s claim must be dismissed.
32The Trial Judge made a comment that Reunion was a “closed, unpublished environment” without specifically considering the issue of the legal requirements of publication.
33As noted above, the parties made written submissions after conclusion of the oral argument as to whether the comments were “published” when they were circulated to an internet group in a closed site for which a password was required to gain access. They also made submissions as to whether the appellant was “trespassing” in a closed site and whether that impacted a case in defamation.
34The law of defamation in the context of the internet is developing, and is dependent upon the facts. I conclude that there is no definitive answer to the legal question of whether the comments were published on these facts of this case, and therefore it is preferable to refer the matter to trial so that the issue can be determined upon a full factual record. I thank the parties for their written submissions on this issue.
35There does not appear to be any case law to suggest that the manner in which the plaintiff became aware of the publication of the defamatory statements will be considered in the analysis of the claim. In any event, the appellant questions the assumption of the fact that he was a “trespasser” in the Reunion site and he raises in his submissions a myriad of other factual concerns. This issue, too, must be considered in the context of a trial with a full factual record.
Conclusion
36I conclude that the matter must be sent back for a new trial before a different judge. The trial judge decided the matter on the basis of a defence not pleaded, which constitutes an unfairness that is a substantial wrong or miscarriage of justice. I do not accept the submissions of respondent’s counsel that it is clear in the circumstances of this case that the allegedly defamatory statements were not published, or that the fact that the appellant was a trespasser precluded him from advancing the claim.
37The appellant made submissions as to costs. As he is self represented, he is entitled to payment of his disbursements as he was successful on this appeal. He indicated that his disbursements for this appeal were $2,800.00. The respondent shall be required to pay these disbursements upon being provided receipts for disbursements paid.
38I strongly urge the parties to arrange a further pretrial conference in the Provincial Court to try to settle this matter before embarking on another trial.
J. WILSON J.
Released: June 27, 2011
CITATION: Martinek v. Dojc, 2011 ONSC 3795
DIVISIONAL COURT FILE NO.: 299/10
DATE: 20110627
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. WILSON J.
BETWEEN:
TIBOR MARTINEK
Appellant
- and –
YURI DOJC, EMIL WEISS, ROBERT SHONHAUSER, YAHOO! INC., YAHOO! CANADA, TEKSAVVY SOLUTIONS INC., DEUSTCHE TELECOM AG and CABLECOM GMBH
Respondent
REASONS FOR JUDGMENT
Released: June 27, 2011