CITATION: Bird v. Ontario (Queen), 2016 ONSC 4122

DIVISIONAL COURT FILE NO.: DC-14-0014 DATE: 20160606

ONTARIO

SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Stewart, McKelvey and Labrosse, JJ.

BETWEEN:

MARY D. BIRD

Appellant

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AND RANDY TIPPIN

Respondents

Francis J. Thatcher, for the Appellant

Lisa Favreau and Judith, for the Respondents

HEARD at Thunder Bay: June 6, 2016

LABROSSE J. (ORALLY)

NATURE OF THE APPEAL

Nature of the Appeal

1This is an appeal from the judgment of Cornell J. dated June 26, 2014. In his judgment the trial judge found in favour of the appellant and awarded her general damages for defamation in the amount of $10,000, plus costs. The appellant now appeals the quantum of general damages, the failure of the trial judge to award punitive damages, and costs.

2At the hearing, counsel for the appellant advised the panel that the appeal of the quantum of general damages awarded was abandoned. As a result, only the issue of punitive damages is before us on this appeal and, if successful, the award of costs.

3In 2005 the appellant, a lawyer, was representing Jarvis Sameluk with respect to charges of overfishing. Randy Tippin was the Ministry of Natural Resources conservation officer who laid the charges. Jarvis Sameluk’s son, Dan Sameluk, was also facing overfishing charges laid by Randy Tippin but was represented by different counsel.

4At a pre-trial conference on March 21, 2006, a tentative plea bargain was negotiated between the appellant and Alan Ryan, counsel for the Crown. At the appellant’s request, Mr. Ryan wrote to her on March 22, 2006 to outline the terms of the plea bargain. He indicated in his letter that the offer would expire on March 29, 2006 if written acceptance had not been received by that date.

5On March 30, 2006, Mr. Ryan informed Mr. Tippin that he had not received a response from the appellant. He also told Mr. Tippin that the first copy of the letter that had been sent to the appellant’s office had been lost by her office.

6On March 31, 2006, Dan Sameluk placed a call to Mr. Tippin. During the course of the conversation, it came to Mr. Tippin’s attention that Dan Sameluk was unaware of the plea agreement. Although they were represented by different lawyers, Mr. Tippin was concerned that Jarvis Sameluk was similarly unaware of the time-sensitive deal.

7Mr. Tippin called Jarvis Sameluk and left the following voicemail message:

Um, I just wanted to inquire if you have heard from your lawyer. And now, I guess I personally don’t really need the answer to that, but um, a proposition was made during the pretrial from your lawyer saying basically what they wanted. Our lawyers agreed. And then your lawyer wanted that in writing. It was presented in writing for some sort of a plea bargain arrangement and I guess your lawyers lost the sheet and whatever other problems happened. Anyway. I basically feel your lawyer is pretty much incompetent which is why I’m making this call. I just wanted to make sure that you were aware um, that an offer was made from the MNR to, to plea out a lot of this stuff. If you hadn’t heard from your lawyer, please get in touch with them. The offer, I think, was only valid up until today or even yesterday, um, and then they were saying that the Crown would go for full penalty if, if you know, we didn’t go the route of the plea. So contact your lawyer. Find out what’s going on from them, if you haven’t heard from them already. We didn’t hear one way or the other whether they accepted the plea or denied the plea outright or if they like the plea but wanted to argue the um, the same things like that. Really, this is a matter between you and your lawyer. I just feel that things have been mishandled grossly up until this point. So if you want to contact them or if you have any questions of me, you can call me at the office. …

8Jarvis Sameluk testified that he was shocked to receive the message and was left with the impression that the appellant was incompetent to handle his matter. However, following the message the appellant reminded him that they had, in fact, discussed the matter at length on March 27, 2006 and Jarvis Sameluk had instructed her not to accept the offer. She also advised him that the letter had not been lost. She had been in the process of moving offices, and requesting a second letter was more efficient than locating the original. Mr. Sameluk was satisfied with these explanations and the appellant continued to represent him on the matter.

9At trial, the trial judge found that the test to establish defamation had been made out on the content of the message: (1) the impugned words were defamatory, (2) the words in fact referred to the appellant personally, and (3) the words were published. He also found that the respondents had failed to establish that the context gave rise to an occasion of qualified privilege.

10In assessing the quantum of damages, the trial judge considered the factors laid out in Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, (S.C.C.). The first factor is the extent of the publication. The trial judge found that only Jarvis Sameluk heard the message. The second factor is the plaintiff’s occupation. While the message did not call into question the appellant’s honesty or integrity - the linchpins of a lawyer’s professional reputation – the trial judge held that competence is still an essential element of reputation and this was undermined by Mr. Tippin’s message. However, there was little evidence of harm to her reputation. The third and final factor is whether an apology has been forthcoming. The trial judge did not find that an admission made by Mr. Tippin on the stand that he regretted his choice of words met the criteria of a proper apology.

11After taking these factors into account, the trial judge awarded $10,000 to the appellant in general damages.

12In paragraph 74 of his reasons, the trial judge found that the respondents’ conduct was not so “malicious, oppressive or high-handed that it offends the court’s sense of decency”, and declined to award any punitive damages.

ISSUE

Issue

13The issue raised on appeal is whether the trial judge erred in not awarding punitive damages.

JURISDICTION

Jurisdiction

14This Court has jurisdiction to hear this matter pursuant to s. 19(2.1)(a) of the Courts of Justice Act, which empowers the Divisional Court to hear appeals of final orders of judges of the Superior Court of Justice for single payments of not more than $50,000, exclusive of costs.

Standard of Review

Standard of Review

15In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, 2002 S.C.C. 33, the Supreme Court of Canada stated that on a pure question of law the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness. With respect to questions of mixed fact and law, the Court found that these lie along a spectrum. Questions of fact must not be overturned absent a palpable and overriding error. Where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, palpable and overriding error reigns. But if a question of law can be extricated or the question is obviously more of a legal nature than a factual one, correctness is the appropriate test.

16In our view, this appeal relates to questions of mixed fact and law.

analysis

Analysis

17In Barrick Gold Corp v. Lopehandia, 2004 12938 (ONCA) the Court of Appeal for Ontario cited with approval (at paragraph 25) the following passage from the Newfoundland Court of Appeal in Farrell v. St. John’s Publishing Co., 1986 2436 (NL CA), [1986] N.J. No. 19:

In assessing damages in a libel action a judge, sitting without a jury, has a great deal of latitude and the Court of Appeal will not readily interfere with his award unless it is satisfied that he arrived at his figure either by applying a wrong principle of law or through a misapprehension of the facts or that the amount awarded was so extremely high or so low as to make it an entirely erroneous estimate of the damages.

18The appellant’s main argument is that the trial judge applied the wrong test in determining the availability of punitive damages and erred in not awarding them. According to the appellant, had the correct test been applied requiring “a more principled and less exhortatory approach” (see: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595), punitive damages should have been awarded for the following reasons:

• power imbalance between an officer of the state and an accused person;

• interference by a state representative in a solicitor-client relationship in a case that officer is involved in;

• an implied threat in the message to compel the accused to accept the plea bargain; and

• the failure of Tippin to gain insight into the highly inappropriate call.

19We do not agree with these submissions. In our view, the judge applied the correct test (at paragraph 74 of his reasons) and found that the defendants’ conduct was not so malicious, oppressive or high-handed that it offends the court’s sense of decency such that punitive damages were in order.

20The decision of the Supreme Court of Canada in Whiten v. Pilot Insurance Co., which dealt largely with adequacy of instructions to a jury on the issue of punitive damages, does not fundamentally change this test. This is reflected in the reasons for decision of the Court of Appeal for Ontario in Barrick Gold Corp v. Lopehandia (at para. 64) which maintain that the proper test is as set out in Hill v. Church of Scientology. This is also consistent with the test applied by the trial judge in this case.

21In reading the trial judge’s reasons as a whole, we are satisfied that the trial judge made findings which support his decision, including:

• the very limited publication of the defamatory statement;

• there was no pleading of malice and no malicious behaviour to punish;

• Mr. Tippin acted out of concern for Jarvis Sameluk and had no intention of harming the appellant;

• in this case, there is no course of conduct to deter;

• The phone message was an isolated incident and not part of a persistent effort designed to defame the appellant;

• Mr. Tippin does not make it his practice to contact defendants about charges once they are laid.

22Given these findings, we see no error by the trial judge that would justify appellate intervention. Accordingly, there is no reason to address the issue of the costs awarded at trial.

23For these reasons, the appeal is dismissed.

COSTS

Stewart, J.

Costs

24“I have endorsed the Appeal Record as follows: For oral reasons delivered by Labrosse, J., the appeal is dismissed. Costs are awarded to the respondents, payable by the appellant, in the amount of $5000.00, all inclusive”.

Stewart, J.

McKelvey, J.

Labrosse, J.