CITATION: Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Inc., 2016 ONSC 1606
DIVISIONAL COURT FILE NO.: 13-1900
DATE: 20160311
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: WALSH ENERGY INC. (c.o.b. as “THE ENERGY CENTRE”) and WALTEK ENERGY SERVICES INC. (c.o.b. as “WALTEK” or “ENERGY PLUS AND CHATEAU HEATING AND COOLING”), Appellant/Plaintiffs
AND:
BETTER BUSINESS BUREAU OF OTTAWA-HULL INCORPORATED/BUREAU D’ETHIQUE COMMERCIALE D’OTTAWA-HULL INCORPOREE (c.o.b. as “BETTER BUSINESS BUREAU SERVING EASTERN AND NORTHERN ONTARIO AND OUTAOUAIS”) and BETTER BUSINESS BUREAU OF OTTAWA-HULL INC., Defendants/Respondents
BEFORE: D.L. Corbett, C.T. Hackland and R. Pomerance JJ.
COUNSEL: John H. Yach, for the Appellant
David Sherriff-Scott and Karen Perron, for the Respondents
HEARD at Ottawa: April 24, 2015
DECISION
D.L. Corbett J.:
[1] This appeal arises from the trial judgment of a defamation action. The appellants were given a grade of D- on the respondents’ web site. The appellants claim that this publication was defamatory of them and caused them very substantial damages.
[2] The trial judge, McLean J., found that the impugned publication was not defamatory, given the context in which it was made. He also found that the publication was protected by the defences of fair comment and qualified privilege. He went on to assess damages, as is proper in the alternative, and concluded that the TEC failed to prove any special damages. He found that general damages of $15,000 would have been appropriate if TEC had established liability.
[3] In a separate endorsement, the trial judge awarded the respondents their costs, which he fixed at about $348,000.
[4] The appellants appeal all aspects of the judgment.
[5] For the reasons that follow, the appeal is allowed, the trial judgment is set aside, and the case is remitted back for trial before a different trial judge.
1. Overview
(a) The Parties
[6] I will refer to the appellants collectively as “TEC” (an acronym for “The Energy Centre”, the appellants’ primary trade name). I will refer to the respondents collectively as “BBB”.
[7] TEC is in the heating and air conditioning business. It provides its services to residential customers (among others). It was a member of BBB for 13 years.
[8] BBB is a not-for-profit organization owned by local small businesses. It is affiliated with an umbrella organization that operates throughout Canada and the United States. The stated mandate of BBB and its umbrella organization is to promote high standards of ethical dealing and customer service in the small-business community.
[9] BBB provides advisory and mediation services when disputes arise between businesses and their customers. BBB also provides ratings of local businesses to assist consumers to choose among competing businesses. Neutrality and impartiality are stated hallmarks of BBB and go to the heart of its credibility as an honest broker between businesses and their consumers.
(b) TEC leaves the BBB
[10] It is a condition of membership in BBB that members respond to complaints made about them to BBB. It is not required that a non-member respond to complaints made to BBB, although non-members may do so and may avail themselves of the BBB mediation process in response to customer complaints made to BBB.
[11] In 2007, TEC became dissatisfied with BBB and decided to give up its membership in the organization. TEC’s dissatisfaction stemmed from what it perceived to be BBB’s tendency to pander to unmeritorious customer complaints.
(c) The Fleischman Complaint
[12] Following TEC’s decision to resign its membership in BBB, a complaint was received by BBB about TEC from a Mr Fleishman. The complaint arose prior to TEC’s departure from BBB, but was raised with BBB after TEC had resigned its membership in BBB.
[13] TEC chose not to respond to BBB in respect to Mr Fleishman’s complaint. TEC also did not resolve Mr Fleishman’s complaint in some other fashion. Thus the complaint remained unresolved, both to the knowledge of BBB and in fact.
(d) BBB rates TEC “Unsatisfactory”
[14] Constructive response to customer complaints is a major part of BBB’s rating scheme.
[15] As a result of TEC’s failure to respond to Mr Fleishman, BBB changed TEC’s rating from “satisfactory” to “unsatisfactory”. This rating was posted on BBB’s web site. Included with this rating was some background information: BBB explained that the rating was a result of an unresolved customer complaint.
[16] TEC did not bring a claim in respect to the “unsatisfactory” rating, which continued to appear on the BBB web site for about a year.
[17] Then, in January 2009, BBB adopted a new rating system.
(e) The New Rating System
[18] The new ratings system was stated by BBB to be a significant advance in the ratings information it provided to the public. Instead of rating businesses “satisfactory” or “unsatisfactory”, BBB would now assign a letter grade to businesses, based on 17 factors, using a “proprietary algorithm” to weight them.
[19] This new ratings system was introduced by the umbrella organization. The system was not designed by BBB, but rather was adopted by it as a requirement of its affiliation with the umbrella organization. On the evidence at trial, BBB did not itself, know the “proprietary algorithm” used to calculate letter grades. It received “proprietary software” that uses the “proprietary algorithm” from the umbrella organization. BBB input the information that it had on local businesses, and the new software generated letter grades on the basis of this information.
[20] The new ratings system assigned a letter grade to TEC of D-. This grade was posted on the BBB web site. Although there was some additional information on the web site about TEC, including its one unresolved customer complaint, it was not clear that the letter grade of D- was entirely a product of this one unresolved complaint.[^1]
2. The Issues
[21] These facts led to the following issues for the trial judge to decide:
a. Were the impugned words defamatory of TEC?
b. If the answer to a. is yes, were they fair comment by BBB?
c. If the answer to a. is yes, were they made on an occasion of qualified privilege?
d. If the answer to b. and/or c. is yes, was this qualified privilege defeated by malice?
e. If the words were defamatory and if BBB does not have a defence of fair comment or qualified privilege:
i. What, if any, special damages has TEC suffered;
ii. What, if any, general damages should be awarded; and
iii. What, if any, punitive damages should be should be awarded?
f. What costs award is fair and reasonable in the result?
[22] The trial judge answered these questions as follows:
a. No.
b. Yes.
c. Yes.
d. No.
e. Damages:
i. Special damages: nil.
ii. General damages: $15,000.
iii. Punitive damages: nil.
f. Costs: about $348,000.
[23] For the reasons that follow, I would answer these questions as follows:
a. Yes as regards the plaintiff Walsh; this issue requires a new trial as to the plaintiff Waltek.
b. This issue requires a new trial.
c. No.
d. This issue requires a new trial.
e. Damages:
i. Special damages: this issue requires a new trial.
ii. General damages: this issue requires a new trial, but, much higher than $15,000.
iii. Punitive damages: this issue requires a new trial.
f. Costs: to be determined at the new trial.
3. Preliminary Issues: Jurisdiction and Standard of Review
(i) Jurisdiction
[24] If the trial judge had not fixed damages, this appeal would be in the jurisdiction of the Court of Appeal.[^2] However, since the trial judge fixed damages at less than $50,000, the appeal lies to this court.[^3]
(ii) Standard of Review
[25] On an appeal from a final order of a judge of the Superior Court of Justice, the standard of review is correctness on questions of law and “palpable and overriding error” on questions of fact.[^4] Questions of mixed fact and law are reviewed along a spectrum from “correctness” to “palpable and overriding error”, based on the extent to which an impugned finding turns on matters of law rather than matters of fact.[^5]
(a) Issue 1: Were the impugned words defamatory of TEC?
1. The Proper Analysis
[26] As found by the trial judge, the impugned words were published by BBB, and are “of and about” TEC. Thus the only remaining question in respect to this issue is whether the impugned words are defamatory of TEC.[^6]
[27] The way to assess whether a publication is defamatory is to look at its plain and ordinary meaning:
[i]n determining its meaning, the court may take into consideration all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented.[^7]
[28] Once the court has determined the plain and ordinary meaning of the impugned words, the court then determines whether the impugned words tend to lower the reputation of the plaintiff in the minds of reasonable persons.
[29] The trial judge found that four factors led to his conclusion that the impugned words are not defamatory:
a. the statement is in the nature of an opinion rather than a statement of fact;
b. disclaimer language on the BBB web site ameliorated the defamatory content of the impugned statement;
c. details found on the BBB web site indicated that there was one unresolved complaint rather than “unresolved complaints”; and
d. the change in the rating from “Unsatisfactory” to “D-” was more a matter of nomenclature than substance.
[30] I review the four factors listed by the trial judge below. I start, however, with a broad issue of principle. The trial judge made no finding as to the plain and ordinary meaning of the impugned words. This was an error in principle that goes to the heart of the question of whether the impugned words are defamatory of TEC, and, indeed, goes to the heart of the entire judgment.
[31] The impugned words are stated to be an evaluation of trustworthiness, ethical character, and willingness to respond to customer complaints. A score of D- conveys the impression that the business is not trustworthy, ethical, or responsive to customer complaints.[^8] This evaluation is based on the limited information available to BBB, and its application of neutral criteria and a “proprietary algorithm”. In summary, the rating means, in its plain and ordinary meaning, in the context in which it was written, that BBB has conducted a fair and impartial assessment of TEC and concluded, on the limited information available to BBB, that TEC is not trustworthy, ethical or responsive to customer complaints. Notwithstanding the qualifications on the BBB web site, implicit in the impugned words is a claim by BBB that it has sufficient information about TEC to state the impugned words.
[32] The rating of D- in its plain and ordinary meaning would tend to lower the reputation of TEC in the eyes of a reasonable person: it casts serious aspersions on TEC’s business ethics and trustworthiness. It is clearly defamatory of TEC.[^9]
2. The Four Factors Considered by the Trial Judge
[33] The four factors considered by the trial judge should not replace the test for whether impugned words are defamatory, as stated above. Further, these factors were misused in the analysis of whether the impugned words are defamatory.
[34] The first factor conflates the defence of fair comment with the question of whether the impugned words are defamatory of TEC. This is a common error in defamation law: conflating a defence (for which BBB bears the onus) with the question of whether the impugned words are defamatory (for which TEC bears the onus).[^10]
[35] The second factor is part of the context in which the court is to construe the impugned words. But context should not overwhelm substance: the qualifying language used in the “fine print” on the BBB web site is a basis for qualifying the meaning of the impugned words, but is not a basis to fail to construe their plain and ordinary meaning. I consider that the qualifying language referenced by the trial judge is fairly reflected in my summary of the plain and ordinary meaning of the impugned words set out in paragraph 31, above: BBB has only limited information about the businesses that it rates, but it implicitly claims to have sufficient information to formulate the rating it posts.
[36] The question of whether there were “unresolved complaints” or “one unresolved complaint” is minor in the context of the central meaning of the impugned words. The overall rating is not expressed to signify that the difference between D- and A+ is solely as a result of one customer complaint that TEC, a non-member of BBB, declined to address through BBB. On its face, the rating is said to signify BBB’s overall evaluation of TEC – the factual basis of that evaluation is not made clear anywhere on the web site.
[37] In respect to the fourth factor, the trial judge found:
[t]he libel alleged… is that with the change in January, 2009 it went from an “unsatisfactory” rating to a “D” to a “D-” rating. An additional allegation of libel in combination with this rating change is that the BBB website indicates “unanswered complaints” when in fact it was only one unanswered complaint.[^11]
[38] The trial judge concluded that the grade D- was not a materially different rating than “unsatisfactory” and thus, given the context of the earlier “unsatisfactory” rating, the impugned publication was not defamatory.
[39] It is no part of the tort of defamation that the impugned statement be worse than prior statements made by BBB about TEC. The comparison between “unsatisfactory” and “D-” is irrelevant to the question of whether “D-” is defamatory.
3. Summary and Conclusion
[40] The trial judge erred in law by failing to determine the plain and ordinary meaning of the impugned words. He erred in law by failing to find that, in their plain and ordinary meaning, the impugned words are defamatory of TEC. He erred in law by conflating this issue with the four factors he listed, two of which were irrelevant to this analysis, and two of which were minor contextual considerations. The impugned words are clearly defamatory of TEC, and the trial judge erred in law in concluding otherwise.
(b) Issue 2: Were the Impugned Words Fair Comment?
[41] The trial judge correctly identified the test for fair comment:
(a) The comment must be about a matter of public interest;
(b) The comment must be based on fact which is either known or potentially available. The comment itself must be reasonably recognizable as an opinion as opposed to an allegation of fact; and
(c) The comment must satisfy the following objective test: could any person honestly express that opinion on the proven facts.[^12]
[42] The trial judge found that BBB’s ratings are “about a matter of public interest”, being the integrity and customer-service record of small-businesses. I agree with this conclusion.
[43] The trial judge gave an abbreviated analysis of the fair comment defence on the following basis:
With that definition [the legal test for fair comment] it would seem that this defence would likewise apply since both defences (qualified privilege and fair comment) have the same basis and the court has already found that the facts have been made out for qualified privilege.[^14]
[44] The defences of qualified privilege and fair comment do not have the same basis, as a comparison of the tests for the two defences makes clear. Under qualified privilege, the defendant need not establish the objective reasonableness of the impugned statement. Under the fair comment defence, the defendant need not establish reciprocity of interest in making and receiving the statement. The defences are distinct and the trial judge erred in conflating them.
[45] The comment, “D-“, is easily recognizable as a kind of opinion: it is not a statement of verifiable fact, in the same way that most performance grades are generalized opinions. However, this performance grade was expressly about TEC’s trustworthiness, integrity and responsiveness to customer complaints. This gives the grade a focused meaning directed towards issue of integrity. Further, the precision of the rating itself – a nuanced letter grade – implies that BBB has sufficient information, not just to rate the plaintiffs, but to do so with precision.
[46] The opinion is stated by BBB to be based on objectively verifiable facts and a neutral and impartial assessment process. The trial judge found that the comment was based on facts which are either known or are potentially available. I agree with this conclusion. And I would add that the claim that the rating is based upon facts and independent and impartial assessment is also a claim based upon facts which are known or potentially available.
[47] The rating system itself[^14] prefers BBB members over BBB non-members. The grade A+ was only available to BBB members. A single refusal to address a customer complaint through BBB mediation would result in a grade of A being reduced to D-. BBB members, by the terms of their membership, are required to submit to BBB mediation. Non-members are not required to participate in BBB mediation. And yet, by the design of the ratings system, the legitimate choice of a non-member to decline BBB’s services appears to have had an automatic and drastic effect on its rating.
[48] BBB revenue comes primarily from its members. It is natural that the members, who fund BBB, would like their organization to benefit them. However, BBB states that it does not distinguish between members and non-members in its ratings, and that its ratings are neutral and impartial as between members and non-members.
[49] The law of fair comment, as it applies to ratings, is complex and nuanced. It cannot be applied without first construing the plain and ordinary meaning of the impugned words: it is that plain and ordinary meaning that must be assessed in comparison to the facts on which it is based. It is the defendant that bears the onus to prove facts that would make out the fair comment defence.
[50] The trial judge erred by failing to analyse the third branch of the test for fair comment, and erred in dismissing this defence on the basis that the impugned words are “mere opinion”.
[51] I would not substitute my own analysis of the record to determine whether the objective facts could support the grade of D-. In my view, this question was the very essence of this trial, and the parties are entitled to have the question answered by a trial judge immersed in the trial evidence.
(d) Issue 3: Were the Impugned Words Protected by Qualified Privilege?
[52] Qualified privilege attaches to the occasion on which a communication is made: a privileged occasion is an
… [o]ccasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. The reciprocity is essential.[^15]
[53] The effect of the defence of qualified privilege is:
… to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff.[^16]
[54] Where qualified privilege applies, it may be defeated in either of two ways:
(i) If the dominant motive for publishing the statement is actual or express malice;
(ii) Where the limits of the duties and interests giving rise to the defence are exceeded.[^17]
[55] The trial judge correctly stated these tests. He found that BBB has an interest in publishing information about small-businesses, and in particular, information relating to the integrity and customer service of small business. The trial judge also found that consumers have a corresponding interest to receive information of this kind about small businesses. There is some authority to support these conclusions.[^18]
[56] However, in my view that authority is simply wrong: qualified privilege is very seldom available for a communication to the general public. BBB has no legal duty to rate the ethics and trustworthiness of businesses. It has set this task for itself. Having set this task for itself, it does not thereby cloak itself in a qualified privilege that permits it to defame businesses so long as it does not act with malice. BBB, having set itself up to publish ratings, has an available defence of fair comment, but the defence of qualified privilege is not available for general ratings published by BBB to the general public.
[57] This conclusion is not consistent with the 1980 decision in Upton v. Better Business Bureau of the Mainland of British Columbia.[^19] In my view Upton was wrongly decided. The court in Upton took judicial notice of the nature and role of the defendant, notice that is not justified on the basis of general principles of judicial notice. In the case at bar, for example, it cannot be a matter of judicial notice that BBB is funded entirely by members, that membership is voluntary, that BBB personnel have a financial interest in increasing membership, and thus that a ratings system that favours members will tend to be the benefit of BBB personnel and existing members of BBB, possibly to the detriment of non-members of BBB. All of these facts could tend a court to the conclusion that BBB ratings are not entirely impartial, and that there is a self-serving aspect to the way in which BBB is organized and carries on business.
[58] This does not mean that BBB never enjoys qualified privilege. BBB is a business, and will enjoy qualified privilege on occasions where that privilege arises. For example, if BBB becomes aware of information that a business has acted illegally, it may forward that information to authorities and enjoy qualified privilege in respect to that information.[^20] Or, in more general terms, the content, mode and extent of publication, and the particular reciprocity of interest between BBB and a person with whom it is communicating, are all factors to be taken into account in deciding whether there is qualified privilege that attaches to a particular communication.[^21]
[59] Many people undertake to evaluate others: restaurant reviewers, arts critics, and, increasingly, firms that aggregate public opinions expressed through internet web sites, may undertake to themselves the task of furnishing opinions about a broad range of topics and communicating those opinions to the general public. Simply undertaking such a task does not vest a critic with qualified privilege which, it must be recalled, is a defence to publishing damaging defamatory statements about others.
(e) Issue 4: Are Fair Comment and/or Qualified Privilege Defeated by Malice?
[60] Fair comment and qualified privilege are robust defences; malice is not established by drawing an imputation of malice from the fact that a defendant has published defamatory words about a plaintiff. This court has recently reviewed the law on the nature of “malice” that overcomes a defence of qualified privilege.[^22] Malice is usually difficult to establish.
[61] TEC argued that malice may be inferred from the “proprietary formulae” used to calculate BBB ratings. There are two aspects to this argument:
(a) The formulae automatically precluded any business that was not a member of BBB from achieving the highest rating of A+, thereby giving an advantage to BBB members. BBB expressly stated that it did not discriminate between members and non-members on its ratings, and this feature of the system was inconsistent with that assertion. It should be inferred from this aspect of the “proprietary formulae” that the ratings system was designed to promote members rather than to report neutral ratings of all businesses.
(b) The formulae automatically reduced a business’ rating from A to D- as a result of a single customer complaint (a) that remained unresolved; and (b) where the business refused to participate in BBB’s mediation services. Non-members have no obligation to use BBB’s mediation services and yet if they do not, they face potentially severe consequences for their BBB rating. BBB does not make this clear on its web site, and so a reader would not know that a highly negative rating might signify no more than that a non-member had chosen not to use BBB’s mediation services.
[62] Thus, TEC argues, by the very design of the “proprietary formulae”, the system was designed to report ratings that falsely described non-members’ businesses as unethical, untrustworthy, and not responsive to customer complaints. It was designed in this way on purpose, to benefit members, to the detriment of non-members, as part of a change in business strategy for BBB. This argument is supported, TEC argues, by other preferential treatment of BBB members on the BBB web site. Malice arises, TEC argues, in part, because BBB claims that its ratings are neutral between members and non-members when this is not, in fact, the case.
[63] The first argument (relating to the unavailability of a grade of A+ for TEC) bears upon the present case only to a limited extent. The record does not establish that this aspect of the “proprietary formulae” had a material effect on TEC’s ratings, given the overall ratings attributed to them. But it nevertheless may be evidence of malice.
[64] The second argument is tenable, but would seem to require a finding that the “proprietary formulae” were designed with the purpose of describing non-member businesses falsely. That is, it is not enough to show that the “proprietary formulae” had this effect; TEC would have to show that this was the dominant purpose of the formulae – in effect, that the formulae had not been developed in good faith. This may be difficult to establish, but it would not be impossible.
[65] There is a further issue on the question of malice. The “proprietary formulae” or “secret algorithm” was not developed by BBB. It was developed by the umbrella organization, of which it is a member. On the record, BBB implemented the new ratings system in good faith, believing it to be an enhanced and more precise ratings system than the previous ratings system. On the record, BBB claims that it did not know that the ratings system would have the effect of reporting ratings that are not justified by the facts on which those ratings were based. This claim must be assessed both as to its sincerity, and on principles of reckless disregard, in order to come to a conclusion on the issue of malice.
[66] TEC also points to events after publication to establish malice. When the objective facts were brought to the attention of BBB, and it was pointed out that those facts would not justify the impugned words, BBB did not immediately withdraw the ratings and apologize. After the ratings were withdrawn by BBB, some competitors of TEC republished the impugned words. It was not until roughly two years after the issues first arose that BBB published a statement on its web site acknowledging that the original ratings had been “in error”, and stated a version of the facts that fairly reflected what had happened. At this point competitors of TEC stopped republishing the impugned words.
[67] The trial judge limited his analysis of malice to the subjective animus of BBB personnel. The question of malice goes well beyond that analysis in this case. I would direct that this issue be returned for decision at the re-trial.
Issue 5: Damages
1. Special Damages
[68] The trial judge found that TEC had not established any special damages. This finding was based in large part on the absence of expert evidence on this issue. While it is for TEC to prove its losses, the requirements of proof must be tailored to the nature of the point to be proved: the onus is on the balance of probabilities, to be measured on the basis of what evidence there is. The absence of evidence may, of course, weigh in that balance, but the absence of evidence that is not possible or practical to obtain is not necessarily a basis on which to draw an adverse inference.
[69] The trial judge was dismissive of TEC’s claims, rejecting arguments that were plainly correct, and going so far as to find that the impugned words were not defamatory when, clearly, they were. Construing the plain and ordinary meaning of the words was a necessary step in considering whether an inference ought to be drawn that TEC suffered loss as a result of the publication of those words. That was not done, and for that reason, I consider the trial judge’s findings respecting general damages to be unsafe.
[70] TEC does not seek past and future loss of business profits on appeal.[^23] I would direct that the claim for all other special damages be remitted for decision at the re-trial.
2. General Damages
[71] The general damages found by the trial judge - $15,000 – are inadequate to compensate for the impugned words. The BBB holds itself as an independent and neutral arbiter for small businesses, focusing on their ethics, trustworthiness and responsiveness to customer complaints. The general damages found by the trial judge are in the range that might be expected in an award against a private person, whose opinions would likely attract no great weight. General damages in this case ought to be towards the high end of the spectrum seen in cases involving persons with large public audiences.
[72] For an HVAC business with a broad consumer clientele, a considered statement from a respected source that a business is untrustworthy and unethical and not responsive to customer complaints is serious and damaging. General damages should have been much higher. I would not suggest a definitive range for these damages, since a suggestion by this court could complicate the exercise of discretion by the judge conducting the re-trial.
3. Punitive Damages
[73] The exercise of discretion as to punitive damages may depend on the trial judge’s findings on the issue of malice and the extent to which the award of special and general damages would serve as a sufficient deterrent. I would remit this issue back to the re-trial.
Issue 6: Costs
[74] Since I have determined that the appeal must be allowed, it follows that the costs decision is set aside. I would leave the costs of the first trial in the discretion of the trial judge presiding at the re-trial.
Conclusion
[75] For these reasons I would allow the appeal, set aside the judgment, and remit the case for a new trial restricted to the issues of fair comment, malice and damages. I would award TEC costs of the appeal in an amount to be agreed between counsel or, failing agreement, to be fixed by this court. Costs submissions from TEC should be filed by March 31, 2016, and responding submissions from BBB should be filed by April 21, 2016.
D.L. Corbett J.
C.T. Hackland J.
R. Pomerance J.
Date: March 11, 2016
CITATION: Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Inc., 2016 ONSC 1606
DIVISIONAL COURT FILE NO.: 13-1900
DATE: 20160311
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, C.T. Hackland, R. Pomerance JJ.
BETWEEN:
WALSH ENERGY INC. (c.o.b. as “THE ENERGY CENTRE”) and WALTEK ENERGY SERVICES INC. (c.o.b. as “WALTEK” or “ENERGY PLUS AND CHATEAU HEATING AND COOLING”), Appellant/Plaintiffs
AND:
BETTER BUSINESS BUREAU OF OTTAWA-HULL INCORPORATED/BUREAU D’ETHIQUE COMMERCIALE D’OTTAWA-HULL INCORPOREE (c.o.b. as “BETTER BUSINESS BUREAU SERVING EASTERN AND NORTHERN ONTARIO AND OUTAOUAIS”) and BETTER BUSINESS BUREAU OF OTTAWA-HULL INC., Defendants/Respondents
ENDORSEMENT
D.L. Corbett J.
Released: March 11, 2016
[^1]: The plaintiff Walsh was assigned a letter grade of D-. The plaintiff Waltek was assigned a letter grade of B. My analysis is based on the grade assigned to Walsh: see below, n.9, for the effect of this appeal decision on the claim by Waltek. [^2]: Courts of Justice Act, R.S.O. 1990, c. C.43, s.19(1.2)(c). [^3]: Courts of Justice Act, R.S.O. 1990, c. C.43, s.19(1.2)(d). [^4]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, paras. 8, 10. [^5]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, para. 36. [^6]: Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, para. 24. [^7]: Botiuk v. Toronto Free Press Publications Ltd., [1995] S.C.R.3, para. 62, quoting with approval from R.E. Brown, The Law of Defamation in Canada (2nd ed.), p. 1-15. [^8]: The trial judge characterized this understanding of the impugned words as “innuendo” (Reasons, para. 26). He found that this innuendo was not “made out”. I would characterize this understanding not as “innuendo” but as the plain and ordinary meaning of the impugned words. In the statement of claim, the plaintiff pleads both theories of liability (plain and ordinary meaning, and innuendo) [Statement of Claim, para. 23]. [^9]: I have not expressed a conclusion about the plain and ordinary meaning of the rating of B assigned to Waltek. Construing this rating requires a nuanced and contextual reading, which will be for the trial judge to do at the retrial. It will be for the trial judge to determine, on the basis of that reading, whether the rating of B was defamatory of Waltek. [^10]: See, for example, Whitehead v. Sarachman, 2012 ONSC 6641 (Div. Ct.). [^11]: Reasons for Judgment, para. 4. See also paras. 10 and 21. [^12]: Reasons, paras. 35-36; Grant v. Torstar, 2009 SCC 61, para. 31; WIC Radio v. Simpson, 2008 SCC 40, paras. 4, 15 and 28. [^13]: Reasons, para. 35. [^14]: BBB has since modified its ratings system. This decision is based on the ratings system as it existed at the material times. No adverse inference is drawn on the basis of any changes made to it afterwards. [^15]: Hill v. Church of Scientology of Toronto, 1995 59 (SCC), 1995 CarswellOnt 396 *SCC), para. 146. See also RTC Engineering Consultants v. Ontario et al. (2002), 2002 14179 (ON CA), 58 O.R. (3d) 726, per Laskin J.A. [^16]: Hill, ibid., para. 147. [^17]: Hill, ibid., paras, 147, 149; Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), paras. 109, 112. [^18]: See, for example, Upton v. Better Business Bureau of Mainland British Columbia, 1980 692 (BC SC). [^19]: Upton v. Better Business Bureau of Mainland British Columbia (1980), 1980 692 (BC SC), 23 B.C.L.R. 228. [^20]: Montgomery v. Dennison, 363 Pa. 255, 69 A.2d 520 (1949). [^21]: Hare v. Better Business Bureau of Vancouver, 1948 432 (BC SC), [1948] 1 W.W.R. 569 (B.C.S.C.). [^22]: Whitehead v. Sarachman, 2012 ONSC 6641 (Div. Ct.). [^23]: Appellants’ Factum, para. 67.