CITATION: Whitehead v. Sarachman, 2012 ONSC 6641

DIVISIONAL COURT FILE NO.: 229/12

DATE: 2012-12-21

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Wilton-Siegel and Corbett JJ.

B E T W E E N:

TERRY WHITEHEAD

David A. Potts for Mr. Whitehead

Appellant (Defendant)

• and -

ROMAN SARACHMAN

Steven W. Pettipiere for Mr. Sarachman

Respondent (Plaintiff)

Heard at Toronto: June 27, 2012

DECISION

D.L. CORBETT J.

1Flamborough, formerly an independent community, was amalgamated into the City of Hamilton effective January 1, 2001.¹ Some in Flamborough remain unhappy with the amalgamation. The respondent, Roman Sarachman, leads the “Committee to Free Flamborough”, a group critical of the amalgamation. The appellant, Terry Whitehead, is a Hamilton City Councilor, and holds a contrary view. Part of the controversy concerns Flamborough tax rates and the quality and extent of services that the residents of Flamborough receive in return for their tax dollars.

2The Flamborough Downs race track has been a particular flash point for this controversy. Prior to amalgamation, race track revenue was used only in Flamborough. The Committee to Free Flamborough feels that this revenue should continue to be used exclusively in Flamborough. Others, including Mr. Whitehead, feel that it should be used throughout the City of Hamilton.

3The action giving rise to this appeal concerns an exchange of emails on May 11, 2009, between Messrs. Sarachman and Whitehead. This exchange was copied to all other City Councilors and to the Mayor of Hamilton. It concerned municipal taxation policies affecting Flamborough.

4The email exchange between Messrs Sarachman and Whitehead took place after a week of intensive debate on the Flamborough race track issue. There was a public meeting on May 7, 2009, at which tempers were lost, harsh words spoken. Mr. Whitehead was a particular target for abuse. He was spat at. Afterwards, he received hostile email and voice-mail messages, including one that seemed to be a death threat. Feelings were running high.

5The emails were exchanged just over three days after the public meeting. Mr. Sarachman started, with an email sent at 1:42 a.m. on May 11, 2009 (the “precipitating email”). In it, he made his case that Flamborough residents were over-taxed and under-served by the City of Hamilton. Some of his language was intemperate:

It’s a shame that certain Hamilton councilors think that we can’t read our tax bill or that we are misinformed, even lied to. We must be morons or are just treated as such.

… [H]ave they stooped so low that they just don’t care?

We do not need to be more informed or misinformed….

The City of Hamilton fathers failed to do their job and punished Flamborough….

Our two councilors… were stabbed in the back, ridiculed, called misinformers, liars, and verbally chastised in a public forum….

Should the provincial government be called in to investigate, or will the Mayor, again, sweep this new problem under the rug….

I for one have lost all confidence in Hamilton Council to govern Flamborough. The let them eat cake attitude is divisive, childish, and immoral.

6Mr. Whitehead was awake when the message from Mr. Sarachman arrived. It upset him. First, he was upset that Mr. Sarachman had his facts wrong. Second, Mr. Sarachman adopted a derisive tone, which, since the email mentioned Mr. Whitehead by name, seemed directed towards him. Mr. Whitehead was already upset by the treatment he had received at the public meeting and its aftermath, and he saw Mr. Sarachman as “one of the individuals leading the charge to create an angry mob in the Flamborough area”.²

7At 2:11 a.m., Mr. Whitehead sent a blistering response, more abusive than substantive (the “impugned email”). In it, he wrote (among other things) that Mr. Sarachman is “a destructive mean spirited liar that does not deserve the time of day” (the “impugned words”).

8Mr. Sarachman did not seek a retraction for about nine months. When Mr. Sarachman did so, Mr. Whitehead apologized, though he did not resile from his view that Mr. Sarachman had mis-stated material facts in the precipitating email.

9Mr. Sarachman was not satisfied with the apology and sued. The defamation action was tried before Turnbull J., sitting without a jury.

The Trial Judgment

10The learned trial judge found that the impugned words defamed Mr. Sarachman. He also found that the defence of qualified privilege was not available to Mr. Whitehead, because he had not acted with a good faith belief in the truth of the impugned words and published them “negligently and maliciously”.

11The trial judge assessed damages at $15,000, which he considered to be “in the lower range of damages”. The trial judge did not consider that the delay in making the apology under-cut its value, given the timing of Mr. Sarachman’s demand for it: damages would have been “substantially higher” had it not been for the apology.

This Appeal

12Mr. Whitehead appeals the finding of liability and raises three general issues of law in this court. He argues that the learned trial judge erred:

(i) in concluding that the defence of qualified privilege does not apply to the impugned email;

(ii) in failing to state and apply the correct legal tests for the defence of qualified privilege and the bases on which that defence, once established, may be defeated because of malice; and

(iii) in finding that the defence of qualified privilege was not available because Mr. Whitehead acted with malice.

13Mr. Sarachman concedes that the test for qualified privilege was neither stated nor applied correctly, but argues that there was an ample record for the findings of malice. He argues that even if the learned trial judge did not state the law on this issue expressly, the findings of fact are more than sufficient to support the conclusion that Mr. Whitehead acted without an honest belief in the truth of the impugned words, and that he published them with malice.

Disposition

14I conclude that the learned trial judge failed to state and apply the correct tests for qualified privilege, or for the circumstances in which this defence may be overcome. These are errors of law and render the judgment unsafe.

15I also conclude that the trial judge’s factual findings are not sufficient to enable this court to apply the correct law to the facts to arrive at a judgment. There must be a new trial.

16The trial judge’s conclusions that the impugned words are defamatory, and that the damages are $15,000, were not challenged on this appeal and need not be relitigated. The parties now agree that the impugned words were published on an occasion of qualified privilege, and in any event it is clear from the record that this is so. Thus the new trial need only concern the issue of whether Mr. Whitehead’s defence of qualified privilege is defeated by malice.

The Sparse Argument at Trial on Qualified Privilege

17By way of preface, I note the brevity of legal argument at trial on the central issues related to qualified privilege. The trial judge made comprehensive findings of fact on the issues argued before him. Neither side set out for the trial judge the proper tests for either the defence of qualified privilege or the bases upon which this defence may be overcome. At trial, Mr. Whitehead’s counsel’s³ argument on these issues was as follows:

We’ve put forward defences of qualified privilege. You’ve heard… Mr. Whitehead’s evidence regarding his belief at the time and his having sent the email in good faith. I don’t plan to spend more than a minute on that. I have included in my brief a case that – rather, not a case but an excerpt from Brown that deals with qualified privilege. It is found at tab 3. I’ve highlighted only a single passage at the very beginning of that section talking about the, where communications are made by a public official in the scope of his duties. And then another passage further along at page 13-286 dealing with communications between public officials in the course of their official duties being protected by a qualified privilege. I don’t plan to spend any more time on it. It’s there for Your Honour to read. I’ve submitted no case law on it. I leave it to Your Honour to assess the strength or weakness of that defence.⁴

18The learned trial judge was entitled to considerably more assistance. The law of defamation is complex. And it is complex for good reason: it seeks to balance competing interests in robust public debate, freedom of speech, and protection of private reputation. The learned trial judge did not address the balance that must be struck in a case such as this one. Had he done so, I am not certain what judgment he might have reached.

Structure of These Reasons

19I begin with preliminary issues related to jurisdiction and standard of review in this court.

20Then, I deal briefly with the defence of qualified privilege. Although it was conceded in this court that the impugned words were published on an occasion of qualified privilege, this was not the approach taken at trial. I feel it necessary to provide some explanation beyond the parties’ concession in overturning the trial judge on this point.

21Next, I address circumstances in which the defence of qualified privilege may be defeated. This is organized in five parts and a conclusion:

(i) The Test and Onus for Proving Malice

(ii) Honest Belief in the Truth of the Impugned Words

(iii) Predominant Improper Purpose in Publishing the Impugned Words

(iv) Pleading Malice in Response to Qualified Privilege

(v) The Trial Judge’s Gatekeeper Function in Jury Trials

(vi) Conclusion

The first three parts deal with the substance of the defence of qualified privilege and bases upon which this defence may be defeated. The fourth and fifth parts address procedural aspects of the defence of qualified privilege which were argued on this appeal and need to be addressed for purposes of the new trial.

22Finally, I address costs of this appeal and of the first trial.

1. Preliminary Issues

(i) Appellate Jurisdiction

23An appeal lies to the Divisional Court in respect of a final order of a Superior Court Justice for a single payment of not more than $50,000, exclusive of costs.⁵ The judgment in this case was for $15,000, plus costs, and thus the appeal lies to this court.

(ii) Standard of Review

24The standard of review from a trial judgment of a Superior Court Justice is correctness as to questions of law, and palpable and overriding error as to questions of fact. Mixed questions of fact and law are reviewable on a continuum between these two standards of review, depending on the extent to which the contested question is legal or factual in nature.⁶

25Mr. Whitehead argues that this appeal turns on questions of law: the failure of the trial judge to state and apply the applicable legal tests. Mr. Sarachman argues that what is really in issue is the trial judge’s overall assessment of the evidence.

26I do not agree that this case concerns “the interpretation of the evidence as a whole”.⁷ Indeed, such a characterization may lie at the heart of the legal errors in this case. It is not for the trial judge to look at “the evidence as a whole” and then decide whether Mr. Whitehead acted with malice. The legal tests must be stated, and factual findings made in accordance with those tests.

27I adopt the language of the Alberta Court of Appeal on this point:

We interpret this passage⁸ to mean that the legal test for qualified privilege is a question of law. Once the relevant facts have been determined, the judge is required to apply those facts to the legal test for qualified privilege. That process has been recognized by the Supreme Court of Canada as one of mixed fact and law.

… [I]f the trial judge applied the incorrect test for determining whether qualified privilege exists, this would be reviewable on a correctness standard. However, if the trial judge made no such error and the alleged error occurred in applying the facts to the correctly identified test, the standard of review requires deference.⁹

28The same principles apply to the issue of malice. The tests for malice are questions of law. Applying those tests to the facts raises questions of mixed fact and law.

2. Qualified Privilege

29The law of qualified privilege is stated succinctly by Laskin J.A. in RTC Engineering Consultants v. Ontario et al. The defence of qualified privilege applies “to the occasion when a defamatory statement is made, not to the statement itself”. On an occasion of qualified privilege a person may defame another without attracting liability.¹⁰

30The onus is on a defendant “to prove all such facts and circumstances as are necessary to bring the words complained of within the privilege…. Whether the facts or circumstances proved or admitted are or are not such as to render the occasion privileged is a question of law for the judge to decide.”¹¹

31“At the heart of the defence of qualified privilege is the notion of reciprocity or mutuality.” For the defence to apply, “[a] defendant must have some interest in making the statement and those to whom the statement is made must have some interest in receiving it”.¹²

32The impugned email was part of an ongoing discussion in Hamilton over municipal taxation issues. It was sent in response to an email from Mr. Sarachman. Mr. Whitehead sent the impugned email to the same group that had been sent the precipitating email by Mr. Sarachman. While the impugned email was intemperate, that does not remove it from the context in which it was sent. Responding to a community activist about an issue of municipal taxation, in the context of an ongoing public debate on that issue, falls squarely within the ambit of qualified privilege for an elected City Councilor.¹³

33The learned trial judge considered that qualified privilege did not apply because the communication, itself, was malicious: “[i]t is not in the best interests of the city that councilors address taxpayers in such derogatory and unfair terms.”¹⁴ This is not the correct analysis. The first step is to determine whether the occasion is one on which qualified privilege applies. If it does, then the court must decide whether the defence of qualified privilege is defeated because the impugned words were published maliciously. The trial judge erred in combining these separate steps.

3. Malice

(i) The Test For Malice in the Context of Qualified Privilege

34In Prud’homme v. Prud’homme, the Supreme Court of Canada summarized the law in this area as follows:

In the common law, malice is presumed once the plaintiff establishes that the defendant spoke the offensive words about him or her. The defendant may try to rebut that presumption by citing qualified privilege. If the defendant succeeds in establishing the criteria for that defence have been met, the presumption of malice will fall and give way to a presumption of good faith. The plaintiff must then establish that the defendant acted in bad faith or had malicious intent.¹⁵

35Thus in the context of the defence of qualified privilege, malice must be proved by the plaintiff to defeat the presumption of good faith. And in this context “malice” means:

(a) lack of honest belief in the truth of the libelous statements; or

(b) use of the privileged occasion for an improper purpose.¹⁶

36“In this context, the word “malice” is used to connote malice in fact, actual malice, or express malice which goes beyond the malice ordinarily presumed upon the mere publication of libelous words.”¹⁷

37Evidence of malice may be extrinsic or intrinsic.¹⁸

Extrinsic evidence is evidence of surrounding circumstances. Intrinsic evidence is the wording of the document itself. The wording must be so violent, outrageous or disproportionate to the facts that it furnishes strong evidence of malice.¹⁹

38In this case, there is little evidence of extrinsic malice.²⁰ The trial judge found that Mr. Whitehead and Mr. Sarachman had been involved in local politics together for several years, and that there had not been previous evidence of ill-will between them.

39In respect to intrinsic malice,

[i]solated expressions should not be examined hypercritically. A court should not too readily draw an inference of malice from mere exaggeration or extravagance in the use of language. Any warmth or force of expression may properly be attributed by the jury to an earnest endeavor on the part of the defendant to honestly achieve his or her purpose. The language must be extreme before an inference of malice will be drawn.²¹

40The learned trial judge found that “the impugned email was much more than retaliatory abuse. It was a direct attack on the integrity and reputation of the plaintiff.”²² “…. The reference to the plaintiff as being a ‘destructive mean spirited liar’ is malicious and demeaning.”²³ These findings are conclusions. As conclusions, they are justified only if the impugned words are so “extreme” that an inference of malice will be drawn, despite the strong presumption to the contrary.

41On this issue, the learned trial judge would have benefitted from a detailed review of the case law that applies this analysis in different contexts. Such a review could have led him to conclude that the impugned words are rather mild compared to other cases where courts have rejected a finding of intrinsic malice. Such a review would also have led the learned trial judge to place the impugned email in the context of the inflammatory comments in the precipitating email, a context that could serve to explain the “warmth of expression” in Mr. Whitehead’s response.

42The learned trial judge erred in failing to explain why the impugned words are so excessive, on their face, as to defeat the robust protection of qualified privilege, given the context in which the words were written.

(ii) Honest Belief In The Truth of the Impugned Words

43The defendant’s honest belief in the truth of what he publishes on an occasion of qualified privilege is presumed, until the contrary is proven.²⁴ This is a “strong presumption”.²⁵ The learned trial judge erred in failing to state and apply this presumption.

44The learned trial judge relied upon the malice inherent in uttering defamatory words to conclude that qualified privilege did not arise. Instead, he should have concluded that the inherent malice attendant on publishing defamatory words was defeated by the defence of qualified privilege. It then remained for the plaintiff to prove, not that it is malicious to utter defamatory words, but that, in this case, Mr. Whitehead acted in bad faith or for an improper purpose.

45The onus to displace the presumption of honest belief lies on the plaintiff; the defendant does not bear the onus of proving his good faith or absence of malice. To rebut the presumption, the plaintiff must prove “actual malice”, or, as it is more commonly known, “express malice”.²⁶ As is reflected in a legion of cases, “[i]t is not a burden that is easily satisfied”.²⁷ The learned trial judge erred in failing to state and apply this onus.

46To defeat the presumption of honest belief, Mr. Sarachman had to show “that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth”.²⁸ The trial judge made no findings that Mr. Whitehead spoke dishonestly or in knowing or reckless disregard for the truth. Indeed, the trial judge did not identify anything said by Mr. Whitehead in the impugned words that is untrue.

47Further, in several places the learned trial judge described Mr. Whitehead’s conduct as “negligent”. Negligence is an objective standard. Recklessness and actual knowledge are subjective standards. The applicable standard is subjective:

… [T]he trial judge used the wrong test and his judgment cannot stand. It is apparent to me that he considered not only must the defendant’s belief be honestly held but that it must be reached on what, objectively viewed, are reasonable grounds.

“[t]he trial judge did, in my view, equate recklessness with carelessness, impulsiveness or irrationality…. That he did take that approach is indicated by the emphasis on the phrase ’on reasonable grounds’.”²⁹

The trial judge erred in conflating objective and subjective standards on this issue.

48These are not fine distinctions in this case.

49The trial judge found that the impugned words “meant and were understood to mean that [Mr. Sarachman] had knowingly relied upon incomplete information”.³⁰ This characterization of the impugned words was open to the trial judge. It is based on the text of the impugned email and the context in which it was sent, and is entitled to deference in this court. I accept it.

50The learned trial judge also found that, in the precipitating email sent by Mr. Sarachman:

[Mr. Sarachman] had not relied on all the relevant information and he had mis-stated some of the facts…. [T]he City was not getting $70,000,000 of tax revenue as asserted by [Mr. Sarachman] because there was an education component which was not received by the City.… [T]here were no water or bus charges included in the tax assessment as those services are paid on a user basis….³¹

In short, the trial judge concluded that Mr. Sarachman, indeed, “had relied upon incomplete information”.

51Given the overall context of the debate, it would have been open to the trial judge to infer that Mr. Sarachman’s mis-statements were advertent. Mr. Whitehead testified that this same ground had been trod several times in the preceding weeks, and he was tired of calling Mr. Sarachman out on the same factual mis-statements.³² However, the trial judge made no finding on this issue one way or the other.

52Further, the trial judge made no finding whether Mr. Whitehead (who correctly believed that Mr. Sarachman had relied on incomplete information), had (or did not have) an honest belief that Mr. Sarachman knew the information on which he was relying was “incomplete”. For example, the trial judge could have concluded that Mr. Sarachman knew that the $70 million in Flamborough tax revenues included school taxes, which are not part of the City’s general revenues. This is a rather basic principle of municipal taxation. And with that foundation, the trial judge could have concluded either (a) that the impugned words, though abusive, were substantially true; or (b) regardless of whether the impugned words were true, Mr. Whitehead honestly believed them to be true at the time that he sent the impugned email.

53The trial judge found that “[t]he defendant said that he sent the impugned e-mail message in good faith and in an honest belief in the truth of its contents…. I absolutely reject that evidence as it relates to the defamatory words”.³³ This finding is unsupported and conclusory. The learned trial judge erred in failing to state the onus and test for honest belief, and the learned trial judge’s factual findings do not support a finding that Mr. Whitehead lacked an honest belief in the truth of the impugned words.

(iii) Predominant Improper Purpose in Publishing the Impugned Words

54An “improper purpose”, in this context, means some “bad, corrupt, dishonest, evil, guilty, illegitimate, improper, indirect, oblique, selfish, unjustifiable, ulterior, wicked, wrongful or even sinister purpose or motive.”³⁴

55However, it is not sufficient to show that the defendant was moved by spite to say the things he said. The plaintiff must show that the defendant’s “dominant motive” was improper: “[i]t is the defendant’s primary or predominant motive in publishing the defamatory remark that is determinative.”³⁵ “In this context malice means not just ill will towards another but any ulterior motive which conflicts with the interest or duty created by the occasion.”³⁶

Dislike and ill-will may be present but actual malice may be entirely wanting. The fact that a defendant is annoyed, or despises and dislikes the plaintiff, or is even contemptuous of him, and takes special delight in offending or embarrassing him, and pleasure in the effect of the publication, or that he was angry and rude, or indignant and resentful, and welcomed the opportunity to expose him, and was willing or inclined to injure him, will not defeat a privilege if it is otherwise exercised primarily for a proper purpose. The motives which move a person to act are often mixed. Passion is to be distinguished from motive.³⁷

56As indicated above in respect to intrinsic malice, words published in these circumstances must not be weighed too delicately in considering the intent and motives of the writer.

…. [A] person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but… on the contrary, he will be protected, even though his language should be violent or excessively strong….³⁸

57The requirement to show an improper purpose as the “predominant motive” is a significant hurdle for a plaintiff:

… [T]o destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.³⁹

Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person’s conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that “express malice” can properly be found.⁴⁰

58The trial judge made a finding that Mr. Whitehead published the impugned words “to re-enforce his own political goals and to discredit his opponents, and in particular, their spokesman [Mr. Sarachman].”⁴¹ With respect, this description could be used in respect to a great deal of political debate, defamatory and otherwise. It is not an illegitimate purpose for a politician to seek to “re-enforce his own political goals”. It is not “some private advantage unconnected with the duty or interest which constitutes the reason for the privilege”.⁴² Rather, that might be part of a politician’s job description. Similarly, although it may seem distasteful, “discrediting one’s opponents” may be an essential aspect of political debate. If this is done without an honest belief in the truth of the published words, then qualified privilege fails, of course. But the two analyses should not be conflated.

59I conclude that this case is comparable to Wells v. Sears:

… I am satisfied that the trial judge erred…. The error occurred when the trial judge failed to apply the test set out in Hill which provides that qualified privilege may be defeated if malice is the dominant motive for making the statement (paragraph 144). The trial judge considered malice, without regard to Mr. Sears’ “dominant” motive or purpose. This omission is relevant on the facts of this case where the evidence may support more than one motive.

… [T]he issue to be determined was not a question of whether there was any evidence of malice, but whether malice was Mr. Sears’ “dominant motive”.⁴³

60The learned trial judge failed to direct himself to the test for “improper purpose”, and the requirement that the plaintiff establish that an “improper purpose” was the “dominant motive” that led Mr. Whitehead to publish the impugned words. The trial judge’s findings of fact are not sufficient to support a conclusion that Mr. Whitehead’s dominant motive was some improper purpose.

(iv) Pleading Malice

61Mr. Whitehead argues that the issue of malice was not pleaded properly.

62Malice must be pleaded and proved to deprive a defendant of the defence of qualified privilege.⁴⁴ The trial judge noted this requirement in paragraph 29 of his reasons.⁴⁵

63I agree that Mr. Sarachman has not pleaded malice with sufficient particularity. I do not agree, however, that the lack of particularity is fatal to his claim.

64The issue of malice was raised in paragraphs 4 and 8 of the statement of claim. It was raised again paragraphs 11, 14 and 16 of the statement of defence. By operation of Rule 25.10(4), Mr. Whitehead is deemed to deny Mr. Sarachman’s allegations in his statement of defence that he acted without malice. In all of these circumstances, Mr. Sarachman’s failure to file an additional document, a reply, alleging with greater particularity that which had already been put in issue, should not be a basis to dismiss the claim now. Mr. Whitehead did not raise this pleadings issue before or at trial. Both sides knew the issue of malice was in issue. Indeed, that was one of the main focuses of the trial and of the trial judge’s reasons.

65That said, this issue should have been pleaded properly in reply.⁴⁶ Had this been done, surely the pleadings would have directed the trial judge to the correct legal tests, and then the trial judge would have stated and applied those tests.

66Mr. Sarachman is granted leave to deliver a reply, properly pleading malice in response to the defence of qualified privilege, within forty-five days of the release of this decision.

(v) The Trial Judge’s Gatekeeper Function

67Mr. Potts argued that the trial judge performs a gatekeeper function where a plaintiff seeks to defeat qualified privilege on the basis of malice. He argues that the trial judge must determine whether there was “sufficient evidence to raise a probability of malice on the part of the defendant.”⁴⁷

68I do not accept this submission.

69The “gatekeeper function” arises where the case is tried before a judge and jury.⁴⁸ Where the case is tried without a jury, the trial judge need not decide whether there is sufficient evidence to “raise a probability of malice” prior to deciding whether malice is proved on a balance of probabilities. Put differently, there is no need for the trial judge to perform a “gatekeeper function” to keep an issue from himself.

(vi) Conclusion

70The law of defamation balances important competing interests. Society as a whole benefits from full and frank debate of public issues. Public officials have a duty to speak candidly on matters of public interest. Political debates should not be stifled by “libel chill”, which casts a broader penumbra than the metes and bounds of the tort of defamation. Mis-statements, overstatements and excessive language may be exposed and corrected through public debate, often in a more timely and effective manner than through the slow process of a civil action.

The function of the tort of defamation is to vindicate reputation, but many courts have concluded that the traditional elements of that tort may require modification to provide broader accommodation to the value of freedom of expression. There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action…. Public controversies can be a rough trade, and the law needs to accommodate its requirements.⁴⁹

71The law of qualified privilege is technical. It is complex. It has developed, not over decades, but over centuries, to try to balance these competing interests, in the context of the “rough trade” of public debate. The accumulated legacy of this law teaches that “[f]inders of fact should be slow to draw an inference that a defendant was actuated by an improper purpose”.⁵⁰

72The learned trial judge erred in mis-stating the law respecting qualified privilege and the bases on which this privilege may be overcome. The factual findings at trial did not address the proper tests. Thus this court cannot apply the proper tests to the facts as found to reach a judgment. And so there must be a new trial.

(vii) Order and Costs

73I would allow the appeal, set aside the trial judgment, and remit the case back for a new trial before another trial judge. Mr. Sarachman is granted leave to deliver a reply, within forty-five days, pleading malice, with appropriate particularity, in response to the defence of qualified privilege. The new trial will be on the question of whether Mr. Whitehead’s defence of qualified privilege is defeated by malice.

74Mr. Whitehead has prevailed in this appeal and is entitled to his costs, fixed at the agreed amount of $12,300, inclusive, payable within thirty days. The costs of the action, including the costs of the first trial, are in the discretion of the trial judge presiding at the new trial.

D.L. CORBETT J.

SWINTON J.

WILTON-SIEGEL J.

Released: December 21, 2012

CITATION: Whitehead v. Sarachman, 2012 ONSC 6641

DIVISIONAL COURT FILE NO.: 229/12

DATE: 20121221

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Wilton-Siegel and Corbett JJ.

B E T W E E N:

WHITEHEAD

Appellant

• and –

SARACHMAN

Respondent

DECISION

D.L. CORBETT J.

Footnotes

1. 1City of Hamilton Act, 1999, S.O. 1999, c. 14.
2. 2Transcript of the Cross Examination of Terry Whitehead , page 123.
3. 3Not Mr. Potts, counsel on this appeal.
4. 4Transcript of Argument, pp. 10-11.
5. 5Courts of Justice Act, R.S.O. 1990, c. C.43, s.19(1) and (1.2).
6. 6Housen v. Nikolaisan, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10 and 36.
7. 7Jaegli Enterprises v. Taylor, [1981] 2 S.C.R. 1 at 4, per Dickson J. (as he then was).
8. 8Referencing Globe & Mail v. Boland, 1960 2 (SCC), [1960] S.C.R. 203 at 206, 22 D.L.R. (2d) 277.
9. 9Chapman v. L’Hirondelle et al., 2012 ABCA 25 at paras. 9 and 10 (references omitted). See also Martin and Martin v. Lavigne and Neufeld, 2011 BCCA 104, at para. 32.
10. 10RTC Engineering Consultants Ltd. v. Ontario (2002), 2002 14179 (ON CA), 58 O.R. (3d) 726, 156 O.A.C. 96 (C.A.), per Laskin J.A., at para. 14.
11. 11Globe & Mail Ltd. v. Boland, 1960 2 (SCC), [1960] S.C.R. 203 (S.C.C.), quoting with approval Gatley on Libel and Slander (4th ed.), at p. 282. See also A.M.N. v. O’Halpin, [1996] O.J. No. 3576 (S.C.J.), at para. 16, per Thompson J.
12. 12RTC Engineering, supra., per Laskin J.A., at para. 16.
13. 13Horrocks v. Lowe, [1974] 1 All E.R. 662 at 671, [1975] A.C. 135 (H.L.), per Diplock L.J.; Prud’homme v. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R. 663, at paras. 23, 49-51; Ward v. McBride (1911), 24 O.L.R. 555, at para. 42 (Ont. Div. Ct.); Brown on Defamation (2nd ed.), vol. 4, updated to Release 5 (2011), at pp. 13-346 to 13-357, and the cases referenced there. See also Smith v. Matsqui (Dist.), 1986 1117 (B.C.S.C.), at para. 22.
14. 14Reasons for Judgment, para. 28.
15. 15Prud’homme v. Prud’homme, supra, at para. 57. See also Hill v. Church of Scientology, 1995 59 (SCC), [1995] 2 S.C.R. 1130, at para. 144.
16. 16Korach v. Moore et al. (1991), 1991 7367 (ON CA), 1 O.R. (3d) 275 at 282 (C.A.), per Houlden J.A. (dissenting, but not on this point).
17. 17Davies & Davies Ltd. v. Kott, 1979 42 (SCC), [1979] 2 S.C.R. 686.
18. 18Gatley on Libel and Slander (11th ed.) at 0.1181, para. 34.36 identifies four categories of evidence tending to establish malice: extrinsic and intrinsic evidence, the circumstances of the publication and the conduct of the defendant in the course of the litigation. I view the latter two categories as encompassed by “extrinsic malice”.
19. 19Korach v. Moore et al. supra., at 282.
20. 20Gatley (11th ed.), supra., at p.1182, para. 34.37.
21. 21Brown on Defamation, supra., at p.16-115 to 116. See also Gatley (11th ed.), supra., at p.1183, para. 34.39.
22. 22Reasons for Judgment, para. 23.
23. 23Reasons for Judgment, para. 30.
24. 24Davies & Davies v. Kott, supra., at p.7; Korach v. Moore, supra., at p.5.; Brown on Defamation, supra., at pp. 16-130 to 16-134.
25. 25Brown on Defamation, supra., at p.16-134, and the cases referenced there.
26. 26Davies & Davies v. Kott., supra., at p.7; Korach v. Moore, supra., at p.7.
27. 27Brown on Defamation, supra., p.16-132, and the cases referenced there.
28. 28Hill v. Church of Scientology, supra., at para. 145.
29. 29Korach v. Moore et al., supra., at 280.
30. 30Reasons for Judgment, para. 24.
31. 31Reasons for Judgment, para. 41.
32. 32Transcript of the Cross Examination of Terry Whitehead, p.112.
33. 33Reasons for Judgment, para. 25.
34. 34Brown on Defamation, supra., pp. 16-20 to 16-23.
35. 35ibid., p.16-32.
36. 36RTC Engineering Consultants Ltd. v. Ontario et al., supra., at para. 18, per Laskin J.A.
37. 37Brown on Defamation, supra., at pp. 16-36 to 16-37. Thus a defendant may be motivated by malice, but not have malice as her predominant motive: Simpson v. Mair et al., 2004 BCSC 754, at paras. 81-85.
38. 38Davies & Davies v. Kott, supra., citing with approval Adam v. Ward, [1917] A.C. 309 at 339.
39. 39Horrocks v. Lowe, supra., at All E.R. 669.
40. 40Horrocks v. Lowe, ibid., at A.C. 151, quoted with approval in Davies & Davies Ltd. v. Kott, supra.
41. 41Reasons for Judgment, para. 44.
42. 42Horrocks v. Lowe, supra., at All E.R. 670.
43. 43Wells v. Sears, 2007 NLCA 21, at paras. 35, 37 (emphasis in original).
44. 44Baumann v. Turner (1993), 6860.
45. 45Shaw v. Morgan (1888), 15 R. 865 at 869 (Ct. of Sess.).
46. 46See Brown on Defamation, supra., at pp. 19-171 to 172.
47. 47Osborne v. Gilbert (Ont. S.C.J., unreported, November 28, 2005), per Dambrot J.
48. 48See Davies & Davies Ltd. v. Kott, supra. See also Laufer v. Bucklaschuk (1999), 1999 5073 (MB CA), 181 D.L.R. (4th) 83, 145 Man.R. (2d) 1 (Man. C.A.), at paras. 25, 79-90; Silbernagel v. Empire Stevedoring Co. (1979), 1979 596 (BC SC), 18 B.C.L.R. 384; Brown on Defamation, supra., pp. 16-135 to 16-140.
49. 49WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 15.
50. 50Brown on Defamation, supra., p.16-139.