Citation and Court Information

CITATION: Sandu v. Fairmont Hotels Inc., 2017 ONSC 3472 DIVISIONAL COURT FILE NO.: 585/15 DATE: 20170602

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT D.L. CORBETT, SPIES and REID JJ.

BETWEEN:

SEVILLYA SANDU Plaintiff/Appellant

– and –

FAIRMONT HOTELS INC. and DARREN SKOMOROWSKY Defendants/Respondents

COUNSEL: Andrew J. MacDonald, for the Plaintiff/Appellant David Elmaleh and Aryeh D. Samuel for the Defendants/Respondents

HEARD at Toronto: June 2, 2017

Oral Reasons for Judgment

D.L. CORBETT J. (Orally)

[1] Sevillya Sandu appeals the judgment of Stewart J. dated December 30, 2014, dismissing her defamation claim against the defendants Fairmont Hotels Inc. and Darren Skomorowsky.

[2] This appeal was commenced in the Court of Appeal and transferred by that court to the Divisional Court (Sandu v. Fairmont Hotels Inc., 2015 ONCA 611).

[3] The standard of review on this appeal is correctness on questions of law and palpable and overriding error on questions of fact (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235).

[4] Ms. Sandu raises five issues on this appeal.

[5] First, she argues that the trial judge made a palpable and overriding error of fact in finding that the night manager, the defendant Skomorowsky, had no reason to be anything but polite in his interaction with the Sandus.

[6] Second, she argues that the trial judge erred in failing to find that the defence of qualified privilege was defeated on the basis of actual or express malice.

[7] Third, she argues that the trial judge erred in finding that the defence of qualified privilege applies to defeat her claim because the impugned defamatory statements:

(a) Exceeded the legitimate purpose of the occasion of privilege;

(b) Were made in contravention of the Fairmont’s code of ethics;

(c) Were irrelevant to the scope and purpose of the log in which they were entered;

(d) Were over-published to an expanded list of recipients.

[8] Fourth, she argues that the trial judge erred by failing to apply the correct test to determine whether the defamatory statements are substantially true.

[9] Fifth, she argues that the trial judge erred in failing to fix aggravated and punitive damages.

Background

[10] Stefan Sandu is employed by the defendant Fairmont Hotels Inc. as a senior chef at Epic Restaurant at the Fairmont Royal York Hotel in Toronto. The plaintiff, Sevillya Sandu, is Stefan Sandu’s spouse.

[11] The hotel held a “staff appreciation party” for its employees and their families in December 2007.

[12] In connection with this party, the hotel permitted employees to rent hotel rooms at a reduced rate for the night of the party. The Sandus rented a room, and attended the party with their 16 year old daughter.

[13] After they left the party, the Sandus went to the room they had rented for the night. They claim that when they got to their room, the smell of smoke in the room was so pervasive “that they could not remain in the room” because Ms. Sandu is asthmatic.

[14] The Sandus went to the front desk at around 1:00 am with their belongings to check out of the room and to inquire whether a refund or an alternate room was available.

[15] The Sandus first spoke with a desk clerk, Josh Herbert. After speaking with Mr. Herbert, they asked to speak to a manager.

[16] The Sandus then spoke with the night manager, the defendant Skomorowsky. Mr. Skomorowsky reviewed the Sandu’s reservation and was aware that Mr. Sandu was a unionized employee of the hotel and that Mr. Sandu and his family had rented the room in connection with the staff appreciation party.

[17] There was a scene between the Sandus and Skomorowsky which ended with the Sandus returning their keys to their room and leaving the hotel.

[18] At some point after the Sandus had left, but before the end of Skomorowsky’s shift that night, Skomorowsky made a log entry about the incident with the Sandus. The log entry was made under the heading “Guest Issues”. In the entry, Skomorowsky described the Sandus as “yelling, screaming, belligerent and very intoxicated”. He noted that the Sandus daughter “was a minor”.

[19] Skomorowsky then sent a copy of the log entry to 40 members of senior management and executives at the hotel via email and to human resources subsequently.

[20] Disciplinary procedures were started against Mr. Sandu for the incident. At the beginning of his next shift, Mr. Sandu was reprimanded for the incident and his family’s destination privileges were suspended for six months.

[21] Mr. Sandu filed a grievance within two weeks of the incident, in early January 2008. This grievance was eventually resolved.

The Trial Decision

[22] Stewart J. correctly stated the test for deciding whether impugned words are defamatory. She characterized the impugned words to mean that Ms. Sandu “was inebriated, demanding, shouting and generally behaving in a belligerent and inappropriate manner toward hotel staff”. (See reasons for judgment para. 37)

[23] Stewart J. accepted Ms. Sandu’s evidence that she does not drink alcohol and had not consumed any alcohol on the night in question. The trial judge found that the statement made in the log notes that Ms. Sandu was “very intoxicated” was not true. Thus, the defence of justification did not succeed in respect to the defamatory words describing the Ms. Sandu as “very intoxicated”.

[24] Stewart J. did, however, accept that Skomorowsky’s general description of the Sandus’ conduct was accurate. That is, while the Sandus were not “very intoxicated”, they acted in a disruptive, rude, aggressive and uncivil manner in their dealings at the front desk. On this basis, the trial judge found that the impugned words published by Skomorowsky were true, except for the statement that the Sandus were “very intoxicated”. She then concluded that “when the contents of the Midnight Log are considered in their entirety, I find the account and description contained therein are true and justified” (Reasons for Judgment, para. 45).

[25] Stewart J. also concluded that Skomorowsky’s statements were made on an occasion of qualified privilege. She found that the Ms. Sandu did not prove malice by Skomorowsky, and therefore the defendants had a defence for publishing the defamatory words.

[26] The trial judge gave thorough reasons. She made clear factual findings, anchored in the evidence. Her statements of the applicable law were impeccable. She generally accepted the evidence of the defendants about what transpired at the front desk on the night of the party, which she was entitled to do. Stewart J. found that Ms. Sandu was not “very intoxicated”, but in all other respects she found that Ms. Sandu and her husband acted badly at the front desk and were primarily responsible for creating an untoward scene. It is also clear from the trial judge’s findings that she considered that this altercation was a rather minor disagreement.

[27] The trial judge found that the defendants published defamatory words about Ms. Sandu when they described her as “very intoxicated” when she was not intoxicated. However, the trial judge found that creating a report about the altercation was part of Mr. Skomorowsky’s job duty. His report was made on an occasion of qualified privilege. The trial judge found that Mr. Skomorowsky acted within the scope of his qualified privilege. This finding was rooted in the evidence and was entirely reasonable. In the circumstances, such a report was a document that Mr. Skomorowsky had an interest in making as a record of events in case his conduct was challenged by the Sandus. Mr. Skomorowsky also had an interest in creating the report as a record of events that could be characterized as a minor form of misconduct by an employee of the hotel.

[28] The trial judge’s approach to the issue of qualified privilege was in keeping with the robust nature of that defence: On the record, it is clear that Mr. Skomorowsky was just doing his job when he made and published the report and the trial judge was reasonable in so finding.

[29] In any event, we conclude that damages would be in the range of nominal to modest in this case, depending on the factual findings respecting justification, and we conclude that this is, on its face, a very strong case for qualified privilege. In all these circumstances, the decision to bring legal proceedings in respect to such a minor incident seems to us difficult to justify.

Issue #1: No Palpable and Overriding Error Respecting Skomorowsky’s Motives

[30] The trial judge concluded that Skomorowsky had no reason to be anything other than polite when he dealt with the Sandus at the front desk. There was evidence on which the trial judge could come to this conclusion. Indeed, on the record before the trial judge, this seems a most reasonable conclusion.

[31] The plaintiff argues in written submissions that Skomorowsky knew that Mr. Sandu was an employee, and may have formed an opinion that the Sandus had always intended to resile from their room reservation. This, the plaintiff argues, provides evidence for “a reason” for Skomorowsky to be less than polite with the Sandus at the front desk. We do not agree and consider this a mischaracterization of the trial judge’s finding. In saying that Skomorowsky had no reason not to be polite, the trial judge was not precluding a basis for Skomorowsky to harbour a suspicion about the Sandus’ motives. One can be suspicious about someone else and yet be polite to them. That was the account Skomorowsky gave of his behavior. The trial judge was entitled to accept the defendants’ evidence that Skomorowsky maintained a civil and professional tone with the plaintiffs and had no reason to do otherwise. This ground of appeal fails.

Issue #2: No Actual or Express Malice

[32] The plaintiff’s position on this issue misconceives the nature of actual or express malice. Aside from the impugned words themselves, there is not a shred of evidence of actual or express malice in this case. There is no evidence that Skomorowsky knew Ms. Sandu before the events in issue in this case. There is no evidence that he harboured her any ill will, aside from being displeased about the way in which she treated him during the incident in question. The suggestion that Skomorowsky was reckless in describing Ms. Sandu’s as “very intoxicated” is not borne out by the trial judge’s finding in para. 45 “that the account and description contained therein are true and justified”. This ground of appeal fails.

Issue #3: Qualified Privilege Was Not Exceeded

[33] We see little merit to the suggestion that the scope of qualified privilege was defeated in this case. If the Sandus had, in fact, been “very intoxicated” at the time of the incident, this would have been relevant information bearing upon the incident (aggravating to the extent that the defendants considered it misconduct for Mr. Sandu to be intoxicated at the appreciation party, and perhaps ameliorative if the intoxication was part of the explanation for the Sandus unacceptable behavior: not everyone is at their best when they have had too much to drink).

[34] We see no basis for the argument that the report was created in breach of Fairmont’s code of ethics. The trial judge found that Skomorowsky honestly believed the impugned statements to be true. That being the case, it was appropriate for him to make a record of them as part of his report on the incident.

[35] We likewise see no basis for the argument that the impugned statements were irrelevant to the log for which they were created. This argument is predicated on a distinction between a report on a “guest” and a report on a “colleague”. We see no reason why these categories should be seen as hermetic and distinct. And even if they were, treating the report as of a “guest” instead of as a “colleague” would not undermine the defence of qualified privilege: that defence is a robust and generous one that provides broad general protection for good-faith conduct undertaken to advance the interests protected by the privilege.

[36] Finally, we see no basis for the allegation that the impugned statements were over-published. It was reasonable for Skomorowsky to treat the incident as raising both a client service set of issues (for which he and others at the front desk could be called to account) and a human resources issue (for which Mr. Sandu might be called to account for his own allegedly bad conduct and the bad conduct of persons for whom he was allegedly responsible). The trial judge had evidence from which she could conclude, reasonably, that the publication of the impugned statements was not overbroad in this context. This ground of appeal fails.

Issue #4: Trial Judge Correctly Stated and Applied the Law of Justification

[37] We do not accept that the trial judge mis-stated the defence of justification. In sum, the trial judge was satisfied that the Sandus acted badly in their dealings with the front desk, by yelling, behaving uncivilly, and treating Skomorowsky aggressively. The trial judge accepted that the behaviour of the Sandus, though not the product of intoxication, could reasonably have led Skomorowsky to conclude that the Sandus were “very intoxicated”. The Sandus argue that the “overall sting” of the remarks were that they were “very intoxicated”. That is not how the trial judge saw it. She viewed their actual behavior as the core event of the incident, and “intoxication” as an explanatory feature of it.

[38] This analysis was open to the trial judge – to conclude that the Sandus acted badly, even though their conduct was not explained by their intoxication.

Issue #5: Aggravated and Punitive Damages

[39] The trial judge made no error in not fixing awards for aggravated and punitive damages. It is inherent in the trial judge’s findings of justification and upholding qualified privilege that she did not consider that the defendants had acted in a high-handed and oppressive manner. The record supported this conclusion. And as we indicated earlier, on the best view of the facts this was a case that should have been in the small claims court if it was brought at all. This was a minor altercation that has been blown way out of proportion. It was treated with seriousness and, indeed, erudition by the trial judge. The trial decision is upheld and the appeal is dismissed.

[40] Costs of the defendants fixed at $11,500.00 all in, a reasonable claim for partial indemnity costs given that the plaintiff’s claim for costs was about $20,000.

[41] I have endorsed the back of the Appeal Book and Compendium of the Appellants as follows: “This appeal is dismissed for oral reasons given by D.L. Corbett J., with costs to the respondents from the appellant fixed at $11,500, inclusive, payable within 30 days.”

___________________________ D.L. CORBETT J.

I agree

SPIES J.

I agree

REID J.

Date of Reasons for Judgment: June 2, 2017 Date of Release: June 8, 2017

CITATION: Sandu v. Fairmont Hotels Inc., 2017 ONSC 3472 DIVISIONAL COURT FILE NO.: 585/15 DATE: 20170602

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D.L. CORBETT, SPIES and REID JJ.

BETWEEN:

SEVILLYA SANDU Plaintiff/Appellant

– and –

FAIRMONT HOTELS INC. and DARREN SKOMOROWSKY Defendants/Respondents

ORAL REASONS FOR JUDGMENT

D.L. CORBETT J.

Date of Reasons for Judgment: June 2, 2017 Date of Release: June 8, 2017