Court File and Parties
CITATION: Van Sickle v. Conlon, 2014 ONSC 5437
DIVISIONAL COURT FILE NO.: 390/13
COURT FILE NO.: SC-11-115502
DATE: 20140918
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
VERNA VAN SICKLE
Plaintiff
(Respondent in Appeal)
– and –
PHILIP CONLON
Defendant
(Appellant)
Joseph Kary, for the Plaintiff (Respondent)
Daniel Stern, for the Defendant (Appellant)
HEARD: September 18, 2014
PERELL, J.
REASONS FOR DECISION
[1] This is an appeal of the decision of Deputy Judge Lewis J. Richardson awarding the Plaintiff Verna Van Sickle damages of $7,500 in her action for defamation against the Defendant Philip Conlon.
[2] In 2011, Ms. Van Sickle and Mr. Conlon were on the Board of Directors of the David B. Archer Housing Co-operative. He was the President of the Co-op, and they were both in attendance at a meeting of the Co-op to deal with the possible eviction of a member. It is alleged that Ms. Van Sickle left the meeting with a copy of a confidential report dealing with the matter. After the meeting, Mr. Conlon sent an email message to the other Board members. The message had the re line: “Subject: Verna's theft of the document from the meeting on Thursday night.”
[3] Ms. Van Sickle subsequently sued Mr. Conlon for defamation. His defences included the defences of justification and qualified privilege based on his duty to the Board to report Ms. Van Sickle’s alleged wrongdoing.
[4] At the trial, it was Mr. Conlon’s evidence that when he said that Ms. Van Sickle was a thief he did not mean to impute that she was guilty of a criminal offence. Rather, all he meant was that Ms. Van Sickle had taken property that was the property of the Co-op.
[5] The Deputy Judge concluded that the words used by Mr. Conlon were defamatory. On this appeal, this finding was not challenged. What was challenged was the Deputy Judge’s treatment of Mr. Conlon’s defences. At pages 7 and 8 of his Reasons for Judgment, the Deputy Judge stated:
Having established that there was defamation, I now turn to the two defences raised by the defendant. The first one is that of truth. There was a suggestion that referring to her actions as theft are true. Well I did hear conflicting evidence as to whether the plaintiff took confidential documents from the meeting, the conclusion that I may make in that regard is not relevant. It is my finding that no reasonable person including the defendant would regard her actions as theft. The documents were from a meeting of a committee of which she was a member. And even if she did take them, there was no law which she broke. The defendant admits this. To refer to this as theft is far overreaching and I find no truth to this allegation.
[6] Pausing here, the standard of review for issues of law is correctness: Housen v. Nikolaisen, 2002 SCC 33. The standard of review for findings of fact is that the findings ought not to be reversed unless it is established that the trial judge made a palpable and overriding error: Housen v. Nikolaisen, supra. The palpable and overriding error test is met if the findings are clearly wrong or can properly be characterized as unreasonable and unsupported by the evidence: H.L. v. Canada (A.G.), 2005 SCC 25 at paras. 55-56. The standard of review for findings of mixed fact and law is on a spectrum between correctness and palpable and overriding error: Housen v. Nikolaisen, supra.
[7] In his conclusion that the defence of truth failed, I am not persuaded that the Deputy Judge made a reviewable error. I say this based on whether the allegation of theft constitutes a criminal offence, the civil wrong of conversion, or the breach of the Co-op’s by-laws, which apparently are silent on the matter of what use Board members may make of documents given to them.
[8] Returning to the Deputy Judge’s Reasons for Judgment, with my emphasis added:
The most serious defence raised by the defendant is that of qualified privilege. … I do find that as a member of the Co-op board qualified privilege does apply to the extent where another member may be criticized to protect the dignity of the Co-op. However, the matter does not end there.
The defence of qualified privilege is defeated if malice exists and the law is clear that it is my function as the trier of fact to determine whether or not malice existed on the part of the defendant in using these words. I find that the words used by the defendant, that is, referring to the plaintiff’s conduct as “theft” were utterly beyond and disproportionate to the facts.
I find that the defendant intended to harm the plaintiff and had a total and reckless disregard for the truth. The defence of qualified privilege does not give the defendant an unfettered license to unjustly defame the plaintiff without boundaries or without accountability. In using the word “theft” to describe her behaviour he went too far and I find his conduct to be malicious. … Counsel for the defendant relies on the British Columbia case of DDI Diamonds with respect to the use of a criminal activity as part of qualified privilege. I have read the case and heard his submissions, however, I do not agree with the defendant’s interpretation. At page 42 of the case, I quote:
He will be protected, even though his language should be violent or excessively strong if having regard to all the circumstances he might have reasonably and on honest grounds believed what he wrote or said was true.
That is not the case which we have here. I am satisfied that Mr. Conlon knew that the allegation of theft was not true but used it in any event.
[9] As I read the Deputy Judge’s Reasons, he found as fact or as a matter of mixed fact and law that Mr. Conlon did not have a reasonable and honest belief what he wrote was true. In other words, Mr. Conlon did not have a reasonable and honest belief that Ms. Van Sickle had wrongfully taken property of the Co-op when she left the meeting. He called her a thief solely with the intent of harming her.
[10] Mr. Conlon submits that the Deputy Judge erred and misdirected himself by connecting the defamatory meaning of theft to the criminal offence of theft, which was not Mr. Conlon’s subjective understanding of what he honestly believed had occurred.
[11] In other words, Mr. Conlon honestly believed that Ms. Van Sickle had wrongfully taken property of the Co-op, and the Deputy Judge erred in denying the defence of qualified privilege when it was established that Mr. Conlon honestly believed what he subjectively understood himself to be saying.
[12] I agree that the Deputy Judge connected theft to criminal activity, but I do not read his Reasons for Judgment as qualifying his finding that Mr. Conlon did not honestly believe that Ms. Van Sickle was a thief, however one might define that type of person. Mr. Conlon’s words were spoken with malice.
[13] Having regard to the standards of appellate review, I find no reviewable error.
[14] For the above reasons, I dismiss the appeal.
[15] Having heard the parties’ submissions about costs, the normal rules and principles about costs should apply and in the circumstances of this case, I fix costs at $12,000, all inclusive.
Perell, J.
Released: September 18, 2014
CITATION: Van Sickle v. Conlon, 2014 ONSC 5437
DIVISIONAL COURT FILE NO.: 390/13
COURT FILE NO.: SC-11-115502
DATE: 20140918
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
VERNA VAN SICKLE
Plaintiff
(Respondent in Appeal)
– and –
PHILIP CONLON
Defendant
(Appellant)
REASONS FOR DECISION
PERELL J.
Released: September 18, 2014