Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Inc., 2016 ONSC 4666

CITATION: Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Inc., 2016 ONSC 4666

DIVISIONAL COURT FILE NO.: 13-1900

DATE: 20160718

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 OUTAOUIS”) and BETTER BUSINESS BUREAU OF OTTAWA-HULL INC., Defendants/Respondents

BEFORE: D.L. Corbett, Hackland and R. Pomerance JJ.

COUNSEL: John H. Yach, for the Appellant David Sherriff-Scott and Karen Perron, for the Respondents

HEARD by Teleconference: June 16, 2016

SUPPLEMENTARY REASONS

D.L. Corbett J.:

[1] The parties have sought directions concerning the form of the order in connection with our disposition of this appeal: Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Inc., 2016 ONSC 1606. In particular, the parties have different views on the scope of the issues to be sent back for re-trial.

[2] The parties exchanged written submissions, conducted a brief teleconference with the President of the panel, and then made oral submissions to the panel by way of conference call. By the time of the conference call the parties had agreed on the following points:

(a) the claims of Waltek were abandoned prior to argument of the main appeal and should not be remitted for retrial;

(b) the claims for lost profits were not pursued on appeal and should not be sent back for retrial;

(c) this court conclusively decided that the impugned words were published by the defendants of and about the plaintiff (“TEC”) and are defamatory; and

(d) the defence of qualified privilege is not available to the defendants in respect to the impugned publications.

[3] The defendants argue that there were findings by the trial judge on a full record relevant to issues of fair comment and malice and that these matters ought not be returned for retrial. Rather, the trial judge at the new trial ought to be bound by these findings and only decide the remaining matters necessary to decide the outstanding issues. The defendants also argue, in the alternative, that this court ought to set boundaries within which the defamatory meaning of the impugned words lie and leave it to the trial judge to determine the meaning of those words on the basis of the record at the re-trial.

[4] The plaintiff argues that in respect to the issues of fair comment, malice and damages (other than lost profits), this court should not handcuff the trial judge. This court concluded that the trial judge at the first trial had been dismissive of the plaintiff’s claims, and thus that any findings made on the basis of this assessment were unsafe and ought not be imposed upon the trial judge at the retrial.

[5] We are in general agreement with the plaintiff on these points.

[6] We have found that, as a matter of law, the defence of qualified privilege does not arise for a publication to the whole world of a rating by the BBB, which is the publication context in this case. That context is supported unequivocally by the record at the first trial.

[7] We have also found, as a matter of law, that the impugned words, published in the context in which they were published, were clearly defamatory of the plaintiff.

[8] We say that these are questions of law because, although they are technically matters of mixed fact and law, the facts that underlie these conclusions are not in material dispute, and the record in respect to these findings is documentary. We do not send these two issues back for retrial because there is no point in doing so: the result would inevitably be the same.

[9] We sent the other issues back for retrial because we were unable to decide them on the record before us. They should now be decided by the new trial judge based on the record placed at the new trial. As I noted in connection with the defence of fair comment, and the response to that defence – an allegation of malice – these are complex issues that should be decided by a trial judge immersed in the entire record. We would not place restrictions on the new trial judge’s ability to make findings of credibility and findings of fact, to draw inferences, and to generally engage with the record in order to decide the outstanding issues.

[10] We agree with the defendants’ alternative argument, though we consider that this point may have more merit theoretically than practically. The trial judge is not bound by our statement of the precise defamatory meaning of the impugned words. On the other hand, the trial judge is bound by the reasoning of this court, and its statements of principle: the closer the record on the new trial resembles the record at the first trial in respect to the content and context of the impugned words, the more the trial judge will be bound by our conclusion respecting the defamatory meaning of the impugned words: that is the nature of binding precedent. However, as a matter of issue estoppel, we agree with the defendant that, although we have decided that the impugned words are defamatory, and this issue may not now be relitigated, the precise defamatory meaning of the impugned words is a matter for the trial judge to determine based on the record at the new trial.

[11] We see the determination of the meaning of the defamatory words as part of the decision-making process encompassed by the list of issues for retrial set out in the plaintiff’s draft order. We see no need to add this sub-issue to the list (just as we do not see it as necessary to list every factual and legal determination to be made by the trial judge in respect to the issues for the retrial). Thus we are satisfied with the revised draft order proposed by the plaintiff and we direct that this draft order be issued and entered by the court office; we have authorized Hackland J. to endorse a fiat to the draft order on our behalf to this effect.

D.L. Corbett J.

C. Hackland J.

R. Pomerance J.

Date: July 18, 2016