Court File and Parties

CITATION: Todd v. Everett, 2014 ONSC 1322

DIVISIONAL COURT FILE NO.: 17/13

DATE: 20140228

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

DAVID TODD

Plaintiff (Respondent)

– and –

PAUL EVERETT, GLENDA WNSBOROUGH, CATHERINE ZONYS, VINCE BOYCHUK, ROBERT LESICA AND MARY R. GIANFRANCESCO

Defendant (Appellant)

Ryan M. Naimark, for the Plaintiff/ Respondent

Daria Krysik, for the Defendant/ Appellant

HEARD at Toronto: February 24, 2014

H. Sachs J.

reasons for judgment

Introduction

1This is an appeal from the judgment of Deputy Judge Richardson, dated December 14, 2012, in which he allowed the Plaintiff’s claim for defamation against the Defendant, Paul Everett, and awarded the Plaintiff, David Todd, $20,000.00 in damages plus costs fixed at $789.00.

2The Defendant appeals both the findings of liability and damages.

3For the reasons that follow I would allow the appeal, set aside the judgment of the Deputy Judge, and dismiss the claim.

Factual Background

4The Plaintiff and the Defendant were both employees at Bombardier Aerospace in Toronto and were members of the union that is the certified bargaining agent for the workers at Bombardier.

5The Defendant attended a union meeting at which he and others were advised that due, in part, to the Plaintiff’s actions, he and others would not be getting the wage increase that they were expecting. The Defendant prepared and filed formal written charges against the Plaintiff with the Executive Board of the union. Twenty-seven other people signed the charge document he prepared. The Executive Board dismissed the charges. The Defendant appealed and that appeal was also dismissed.

6The Plaintiff sued the Defendant and the others who signed the charge document for defamation. In the end the Plaintiff only proceeded against the Defendant and one other person.

7At the trial the Defendant relied on the defence of qualified privilege. The Deputy Judge accepted that the occasion was one that attracted the privilege, but found that the privilege was defeated by malice. In other words, he found that the Defendant could not rely on the privilege because he had acted maliciously when he made the complaint against the Plaintiff.

Analysis

8The Defendant argues, inter alia, that the Deputy Judge erred in finding he acted with malice. The question of whether the record supports a finding of malice is one of mixed fact and law, which lies closer to the factual end of the spectrum. Thus, to succeed on this aspect of his appeal, the Defendant must demonstrate that the Deputy Judge made a palpable and overriding error in concluding there was evidence before him to justify a finding of malice.

9On an occasion of qualified privilege, the onus is on the plaintiff to prove that the actions of the defendant were actuated by malice: see Korach v. Moore (1991), 1991 7367 (ON CA), 1 O.R. (3d) 275 (C.A.), at p. 281. Further, “[w]here an occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish remarks which may be defamatory and untrue about the plaintiff”: see Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3, at para. 79.

10In his reasons the Deputy Judge relied on the following evidence to ground his finding of malice:

(a) The Defendant’s statements in the charge document were untrue and in making these statements the Defendant acted with a total disregard for the truth;

(b) The Defendant involved other union members to support the charge in order to strengthen his case against the Plaintiff;

(c) The Defendant did not serve the charge document on the Plaintiff;

(d) The Defendant complained to the Executive Board about their delay in coming to a decision and threatened to appeal their decision;

(e) As part of the relief sought in the charge document the Defendant requested that the Plaintiff be removed from his office as a union representative; and

(f) The Defendant brought the charges against the Plaintiff in an effort to destroy his reputation because of a personal vendetta against him.

11Certainly if there was evidence from which a trier of fact could draw the inference that the Defendant acted with reckless disregard for the truth or the Defendant’s actions were motivated by a personal vendetta against the Plaintiff that would be a basis for a finding of malice. The issue raised on this appeal is whether there was any evidence to this effect or any other evidence that would justify a finding of malice.

Disregard for the Truth

12On this point the Deputy Judge found as follows:

[The Defendant] had a total disregard for the truth and indeed had a total disregard for the consequences … He had every opportunity to verify the truth and chose not to … It would have been a simple task to verify the truth by speaking to the plaintiff or Mr. Currie but he chose not to … All these incidents occurred without a tittle of evidence to support the allegations.

13In Botiuk, at para. 79, the Supreme Court of Canada held that “[m]alice may be established by showing that the defendant either knew that he was not telling the truth, or was reckless in that regard.” The Supreme Court also found as follows, at para. 96:

A distinction in law exists between “carelessness” with regard to the truth, which does not amount to actual malice, and “recklessness”, which does. In The Law of Defamation in Canada, supra, R.E. Brown refers to the distinction this way (at pp. 16-29 to 16-30):

… a defendant is not malicious merely because he relies solely on gossip and suspicion, or because he is irrational, impulsive, stupid, hasty, rash, improvident or credulous, foolish, unfair, pig-headed or obstinate, or because he was labouring under some misapprehension or imperfect recollection, although the presence of these factors may be some evidence of malice.

14The House of Lords stated as follows in Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 150:

[W]hat is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, “honest belief.” If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true … But despite the imperfection of the mental process by which the belief is arrived at it may still be “honest”, that is, a positive belief that the conclusions they have reached are true. The law demands no more. [Emphasis added.]

In Botiuk, at para. 98, the Supreme Court accepted that “[t]his proposition does indeed seem to be generally representative of the Canadian position on the matter”.

15The Defendant testified that the statements he made in the charge document were based on information he received from two union committee people at the union meeting, which was called for the purpose of updating members about the salary raise they were expecting. Further, he testified that he believed what he was told at the meeting and that he had no reason to believe that what he was told was untrue.

16The Plaintiff, during cross-examination, testified that his understanding, from speaking to some of the people who also signed the charge document, was that they believed what they were signing. The Plaintiff also testified that he had never had a conversation with the Defendant, but he “would have to say [the Defendant] believed. You know, but he should have known that this wasn’t true because there’s two sides to every story”.

17In other words, the evidence before the Deputy Judge, both from the Defendant and from the Plaintiff, was that the Defendant had an honest belief that what was said in the charge document was true.

18The Plaintiff argues that the Defendant’s failure to verify the truth of the committee members’ statements at the union meeting constitutes “recklessness”. He does so on the basis of the decision in Botiuk where the court found that the defendants, who were lawyers, were reckless when they signed a “Lawyers Declaration” that stated they had familiarized themselves with a report about the plaintiff in that case and that the report was correct and accurate. In fact, many of them had not even read the report. According to the Plaintiff, the Defendant’s position was similar to that of the defendants in Botiuk, because even though he was not a lawyer, he had been sued for defamation on a previous occasion.

19I disagree. Botiuk makes it clear that a lawyer’s actions will be scrutinized more closely than that of a lay person. Not only are lawyers presumed to know the law (in the way that people who have been sued in the past are not), but also a reasonable member of the public would attach more weight to a “Lawyers Declaration” stating that the lawyer(s) were familiarized with a document and could attest to its accuracy than to a complaint from a lay person. Finally, unlike in Botiuk, the Defendant in this case did not represent that he had investigated the matter when he had not. He simply reported what he had been told because, according to him, he honestly believed it and had no reason to believe it was untrue. A more careful person may have spoken directly to the people involved, but not doing so did not make him reckless within the meaning of the law.

20The Plaintiff also submitted that if the Defendant wanted to prove that he was acting on the basis of an honest belief he should have called the two committee members whose statements he relied on in bringing the charges, and he did not. This submission ignores the fact that it is not the Defendant’s onus to prove his honest belief; it was the Plaintiff’s onus to prove otherwise.

Involvement of Additional Union Members

21One of the factors the Deputy Judge relied upon to support his finding of malice was that the Defendant recruited additional union members to sign the charge document. As put by the Deputy Judge, “[t]o lodge a complaint it is not necessary to have other signatures. It was his intention to build a case. He knew by the involvement of so many, that the allegations would appear stronger”.

22There was no evidence at the trial that the Defendant tried to “build a case” by convincing others to join him in bringing charges against the Plaintiff. The Defendant testified that other people who were at the meeting were upset with the Plaintiff’s actions, but because of his experience he volunteered to draft the charges. Once he drafted the charges, he passed the document around to others who could see if they wanted to sign it and many did. According to the one other signatory who testified, Mary Gianfrancesco, the Defendant showed her the letter containing the charges and told her to sign it if she supported what it said. She read the letter over before she signed it and was not forced by the Defendant to sign it.

Not Serving the Plaintiff with the Charges

23The Deputy Judge found that even though the Defendant followed the procedure of the union’s Constitution in not serving the Plaintiff with the charge document, this lack of service was evidence of malice. On this point the Deputy Judge stated, “[e]ven though not technically necessary to serve the documents, based on the severity of the allegations and the consequences, it would have been appropriate to serve the plaintiff with notice of the complaint and to allow his input”.

24According to the evidence of the witness called to testify about the proper procedure respecting service of the charges, Gary Davidson, Vice-President of the union, the charges are not served on the subject of the charges until the Executive Board has had a chance to review the charges and decide if they should be served. Thus, the complainant had no obligation to serve the complaint on the person being complained about. The Defendant’s adherence to the procedures of his union’s Constitution cannot be construed as evidence of malice.

Interference With Board Deliberations

25The Deputy Judge found that the Defendant’s attempt to interfere with the deliberations of the Executive Board was evidence of malice. As put by the Deputy Judge, “[h]e was not content to allow the executive board to take the proper time to deliberate. He wrote them a letter criticizing their tardiness and putting pressure on them”.

26The charges document was filed with the union’s Executive Board on April 26, 2010. On May 19, 2010 the President of the union sent an email to the Defendant requesting “supporting evidence and documents to support” the claim and indicating that the Executive Board would not pursue any further action until the documentation was received. On May 20, 2010 the Defendant wrote back in part as follows:

Charges against a bargaining committee member were submitted not “allegations”.

These charges were submitted … as per the Constitution on April 26/10.

There are approx. 30 authors to these charges, as spokesperson for the 30 concerned members, it is appalling to find out that there is further delay in the process.

All the required supporting evidence and documents are already included in the said charges.

Since the executive board will not pursue any further action on these charges, then we will proceed to appeal the decision of this board to the Office of the CAW President.

27According to the evidence, the Defendant also had a conversation with Mr. Davidson regarding the delay in the board’s decision. Mr. Davidson testified that this conversation occurred in June 2010 and that during the conversation the Defendant used words that expressed the fact that the process was taking longer than he wanted.

28Neither the Defendant’s letter of May 20, 2010 nor the Defendant’s comments in June 2010 speaks to anything more than a concern about delay, which cannot be construed as evidence of malice.

29The Plaintiff submitted that the Defendant was attempting to put pressure on the Board in stating that he would proceed to appeal the Board’s decision. I do not agree. First, the statement about appealing the Board’s decision appears to be a direct response to the Board’s indication that they would be taking no further action unless they received supporting documentation. Second, threatening to appeal an adjudicator’s decision to the proper authority is not conduct that amounts to putting inappropriate pressure on that adjudicator.

Request for Removal from Office

30The Deputy Judge criticized the Defendant for suggesting that the Plaintiff be removed from office in the charge document and found that this indicated malice. In this regard the Deputy Judge stated, “[i]n the complaint he suggested a punishment, that Mr. Todd be removed from all present and future office. This was not required in accordance with the [union’s] charter, which only leads me to the conclusion that he had a personal agenda”.

31The Constitution of the union neither requires nor restricts a complainant from asking for a remedy. In Horrocks, at p. 144, the House of Lords found that urging an official to be removed from office was not a misuse of a privileged occasion. This reasoning was relied upon and applied by the British Columbia Supreme Court in Masunda v. Johnson and Leong, 1999 7001 (B.C.S.C.), at para. 42. In other words, the fact that the charge document urged the removal of the Plaintiff from office does not constitute evidence of malice.

Personal Vendetta

32Malice may be demonstrated if it can be established that the defendant has an “indirect motive which conflicts with the sense of duty created by the occasion”: see Botiuk, at para. 79. On this point the Deputy Judge found that “[t]he evidence is clear, that the defendant Paul Everett put himself in the role of a prosecutor. He wanted the plaintiff removed from his position, and he wanted his reputation defamed. His conduct throughout appeared to me to be more of a crusade, a mission, a vendetta”.

33There was no evidence before the Deputy Judge of any indirect motive on the part of the Defendant for making the complaint that he did. There was no evidence that the Plaintiff and the Defendant knew each other well or had had much to do with each other prior to the union meeting that gave rise to the complaints. The fact that the Defendant was upset and angry after hearing about the Plaintiff’s conduct at the union meeting and chose to pursue the matter vigorously with the Executive Board does not constitute evidence of some other indirect motive or personal agenda.

Conclusion regarding Malice

34For the reasons set out above, I find that the Deputy Judge made a palpable and overriding error in finding that there was malice on the evidence before him. The evidence, viewed as a whole, does not provide a basis for such a finding. While the evidence may disclose that the Defendant was stubborn and even unfair in his belief that the charges should be proceeded with, this does not constitute malice: see Botiuk, at para. 96.

Conclusion

35Given my finding on the issue of malice, the appeal is allowed, the judgment of the Deputy Judge set aside and the claim dismissed. In view of this conclusion there is no need to deal with the appeal respecting damages.

36The Defendant is entitled to his costs of the trial, which I fix in the amount of $3000.00. Regarding the appeal, the Defendant requested just under $10,000.00, roughly the same amount that the Plaintiff sought if he had won the appeal. I accept that the Defendant’s lawyer is more junior to the Plaintiff’s lawyer and, therefore, the costs associated with the retainer of the Defendant’s lawyer should be less. For these reasons I fix costs of the appeal that the Plaintiff is to pay the Defendant at $7500.00 all inclusive.

Sachs J.