Corion v. Plummer, 2023 ONSC 3249
CITATION: Corion v. Plummer, 2023 ONSC 3249
DIVISIONAL COURT FILE NO.: 547/22 DATE: 20230601
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
JACOB CORION
David Ibeawuchi, for the Plaintiff/Appellant
Plaintiff/Appellant
– and –
MAURICE PLUMMER
Self-represented, Defendant/Respondent
Defendant/Respondent
HEARD at Toronto: May 30, 2023
LEIPER J. (Orally)
PART I – INTRODUCTION
[1] This is an appeal from a decision of Deputy Judge J.M. Chadwick dated September 12, 2022, dismissing an action in defamation brought by the Appellant, with a claim in damages of $25,000.
[2] The Appellant is a member of and a fundraiser for his church. In the past, the Appellant and the Respondent socialized and played dominoes with friends and other church members. At trial, the Deputy Judge heard evidence that there was a dispute over the domino fees between the parties prior to the communication which is at the heart of this action.
[3] On July 6, 2018, the Respondent sent a text message to the Appellant’s wife which he also later distributed to other members of the church. The text read:
Good night. Clue number 3. Your Husband is GAY and his brother Joe Corriah R.I.P. is GAY as well. By rancing up the churches, putting in tithes, and obeying Sabbath is completely a fake for these two men, The only Sabbath they both follow is BLACK SABBATH THAT STANDS FOR DEVIL WORSHIP. Which in turn leads to abomination when the LORD comes. GAY people challenge society and churches to recruit people to join their world to help the DEVIL, because how wrongfully they are. Now you know the truth for the year 2018 about your husband. It is your choice on what you want to do with this. My advice, DO THE RIGHT THING FROM THE BIBLE AND FOR GOD’S SAKE, I will not bother you anymore. Enjoy your night. Read below.
PS: if your husband continues of what he is trying to do with me, consequences will be upheld. Believe, I will not be hold responsible. The truth is the truth. TELL HIM TO STAY AWAY. Thank you.
[4] The Appellant served a claim in defamation in Small Claims Court, relative to the allegation in the communication that he was gay. The claim pleaded that the text message was sent for the purpose of diminishing the Plaintiff in the eyes of his wife and the community and to damage his reputation as a fundraiser in the church and community in general.
[5] The Deputy Judge dismissed the Appellant’s claim of defamation because he had failed to establish that the impugned words, that he was gay, were objectively defamatory.
[6] The Deputy Judge did not accept the Respondent’s defence that his allegations were true nor his evidence that the Appellant made unwanted sexual advances towards him.
[7] On appeal, the Appellant submits that the Deputy Judge erred in the analysis of whether the publication of words that described the Appellant as being gay were defamatory. He seeks to reverse that decision.
PART II - ISSUES ON APPEAL
[8] The Appellant has described three issues on this appeal:
a. Did the Deputy Judge err in finding that describing a person as “gay” is not defamatory?
b. Did the Deputy Judge misapply the test for defamation?
c. Did the Deputy Judge err in her analysis of the “reasonable person” part of the test?
PART III - STANDARD OF REVIEW
[9] The standard of review on appeal for a pure question of law is one of correctness. Findings of fact are reviewable on a standard of whether the trial judge has made a “palpable and overriding error.” A palpable error means an error which is “plainly seen.” Where the issue involves the application of the law to the facts as found, and there is an extricable error in law, this finding is subject to a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 11, 36-37.
[10] In defamation actions, the question of whether the words complained of can convey a defamatory meaning is a question of law: Canadian Broadcasting Corp. v. Color Your World Corp., 38 O.R. (3d) 97 (C.A.), at p. 106.
Issues a. and b.: Did the Deputy Judge err in finding that describing a person as “gay” is not defamatory? Did the Deputy Judge misapply the test for defamation?
[11] I consider these two issues together because they are really two sides of the same coin: whether the Deputy Judge erred in applying the test for defamation to the facts before her.
[12] The law of defamation in Canada requires that to make out the tort of defamation, a person must establish on a balance of probabilities that “(1) the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning they were communicated to at least one person other than the plaintiff”: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.
[13] In this case, there was no question that the words in the text sent to the Appellant’s wife were about him and that they were communicated to at least one other person other than the Appellant. The evidence at trial was that the Respondent repeated his assertion that the Appellant was gay to other members of the congregation.
[14] The Deputy Judge correctly stated the test for defamation with reference to Grant v. Torstar Corp. at paras. 4 and 5 of her reasons.
[15] The Deputy Judge applied the test for what is meant by a “reasonable person” with reference to the decision of the Court of Appeal for Ontario in Color your world Corp. The Deputy Judge wrote that the statement should be judged “by the standard of an ordinary right-thinking member of society.” This is in keeping with the description found in Colour your world Corp. at p. 13, as the “perspective of someone reasonable, that is a person who is reasonably thoughtful and informed, rather than someone with an overly fragile sensibility. A degree of common sense must be attributed to viewers.”
[16] The Deputy Judge found that the allegation of being gay, in the context of the Appellant’s church, did have the effect of lowering his reputation in the eyes of the members of that church, because of this church’s attitudes towards homosexuality. However, the Deputy Judge went on to measure the words from the perspective of the broader public and concluded that to say that someone is “gay” in 2018, does not amount to a defamatory statement.
[17] In coming to this conclusion, the Deputy Judge considered human rights protections based on sexual orientation, the legalization of gay marriage, and broad support in Canadian society for the equal rights of same sex partnerships particularly in the last 20 years. Her application of the “reasonable person” standard centred on the broader views of society. She concluded on this basis that the statement that the Appellant was gay, although untrue, was nevertheless not a defamatory statement.
[18] The Appellant submits that this was an error. He relies on a 1974 decision of the Ontario Court of Appeal in which the court ruled that suggesting that a group of persons were “political homosexuals”, amongst other allegations, was a “prima facie defamatory” statement: Wlodek v. Kosko et al. (Ont. C.A.).
[19] The Appellant also submits that the 1998 Ontario Court of Justice decision in Anderson v. Kocsis [1998] 86 OTC 107 (O.C.J.) is persuasive although not binding. In that decision, the court accepted the argument that being described as “queer” was capable of being defamatory.
[20] The Appellant submits that even contemporary community attitudes towards an assertion that a person is gay can “range from sympathetic tolerance and understanding to an irrational abhorrence.” He suggests that it is impossible in a pluralistic society to determine community attitudes which can fall across a broad spectrum. He submits that the Deputy Judge failed to apply an objective test to the false statement in this case.
[21] I would not give effect to these submissions. First, the two prior cases which the Appellant relies on concerned events that took place over 25 years ago. They reflect dated attitudes. The Deputy Judge situated her analysis of community attitudes primarily within the last 20 years with reference to legislative and human rights reforms responsive to equality concerns. Her analysis was supported by changes in community attitudes as reflected in laws and policies that recognize full democratic and social participatory rights by members of the community who identify as gay.
[22] The Deputy Judge had a case in defamation before her solely based on the impugned assertion that the Appellant was gay. I conclude that she correctly applied the test for the tort of defamation to the findings of fact and the communications by the Respondent. She considered relevant markers of community acceptance towards persons who describe themselves as or who are described as gay. She distinguished between the attitudes held by members of the Appellant’s church, which is a smaller subset of the greater community. In doing so, she made no error in law.
[23] I observe and agree with Appellate counsel (who was not counsel at trial) that there is a feature of the communication which might have objectively been found to be defamatory. The Respondent’s text suggests that the Appellant was deceitful: that is, he hid his sexual orientation and presented himself as a tithing, contributing member of the church. The Respondent said that he was a “fake”. However, the pleadings, trial evidence and submissions all centred on the defamatory nature of the allegation that the Appellant is gay. The trial judge adjudicated the matter based on how the parties framed the action and so for the reasons above I have found no error in her approach to the legal questions before her.
Issue c: Did the Trial Judge Erred in the Analysis of a “Reasonable Person”
[24] The Appellant submitted that the reasonable person is someone from within the community, in this case the church community to which he belonged and that the Deputy Judge erred in applying this broader standard. I disagree.
[25] In Bou Malhab v. Diffusion Métromédia CMR Inc. 2011 SCC 9, [2011] 1 S.C.R. 214, Deschamps, J. quotes from R. Brown, The Law of Defamation in Canada, 2nd ed. (loose‑leaf), vol. 1, at pp. 5-45 to 5-57:
The court will assume that the ordinary reasonable person is someone who is thoughtful and informed, and of fair, average intelligence. They are persons who have a common understanding of the meaning of language and who, in their evaluation of the imputation, entertain a sense of justice and apply moral and social standards reflecting the views of society generally. (Emphasis added)
[26] As discussed in the case law, the “reasonable person” is a person who in general will reflect the views of society. This was the approach taken by the Deputy Judge and I find no error in her application of the law in this case.
PART IV - THE CROSS-APPEAL
[27] The Respondent, Mr. Plummer filed a cross-appeal and filed an affidavit in support of that appeal relative to a ruling by the Deputy Judge at the close of trial concerning the Appellant’s failure to comply with s. 5 (1) of the Libel and Slander Act, R.S.O. 1990, c L.12 (the “Act”). He submits that the Deputy Judge erred in her treatment of the notice requirement because the claim was initiated 13 weeks after the impugned communication without prior notice under the Act.
[28] The Deputy Judge found that the Respondent had not pleaded nor relied upon the notice provisions in s. 5(1) of the Act. She considered the Respondent’s failure to give notice, the fact that the trial was in its third day, and the evidence was complete. The Deputy Judge found that it would be “prejudicial to the Plaintiff for the court to grant a motion at this stage and in these circumstances.”
[29] There are two issues on the cross-appeal. The first is the admissibility of the Respondent’s affidavit of August 21, 2022, which is a summary of case law and argument on the question of s. 5(1) of the Act. This affidavit is not admissible on the basis that it is argument and not evidence.
[30] The second issue is whether the Deputy Judge erred in her treatment of the issue at trial. I find that the Deputy Judge made no error in her ruling that she would not permit argument on the question of the application of s. 5(1) of the Act. The Respondent did not plead this defence, nor was it the subject of evidence. His representative raised the issue at the close of trial, following three days of evidence. The Deputy Judge has a discretion to permit new issues to be raised at the close of trial. She was in the best position to assess the reasonableness of this request and provided reasons that showed she considered the timing, prejudice and appropriateness of the Respondent’s request.
[31] I would dismiss the cross-appeal.
CONCLUSION
[32] For these reasons, the appeal and the cross-appeal are both dismissed. Given the mixed success, I make no order as to costs.
___________________________ LEIPER J.
Date of Oral Reasons for Judgment: May 30, 2023
Date of Written Release: June 1, 2023
CITATION: Corion v. Plummer, 2023 ONSC 3249
DIVISIONAL COURT FILE NO.: 547/22 DATE: 20230601
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
JACOB CORION Plaintiff/Appellant
– and –
MAURICE PLUMMER Defendant/Respondent
ORAL REASONS FOR JUDGMENT
LEIPER J.
Date of Oral Reasons for Judgment: May 30, 2023
Date of Written Release: June 1, 2023