ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-49601
DATE: 2012/05/25

BETWEEN:

2964376 CANADA INC. o/a AMEUBLEMENT PRESTIGE FURNITURE
Plaintiff/Defendant by Counterclaim

– and –

ANNIE BISAILLON
Defendant/Moving Party

Kenneth Radnoff, Q.C./Jonathan P.M. Collings, for the Plaintiff/Defendant by Counterclaim

Jacquie El-Chammas / J. Bruce Carr‑Harris, for the Defendant/Moving Party

HEARD: May 2, 2012

REASONS FOR DECISION

Métivier J.

[1] This is a motion for summary judgment brought by the plaintiff in a defamation action as a result of an allegedly defamatory e‑mail (“Bisaillon e‑mail”) sent by the defendant from her work e‑mail address to a circle of friends and colleagues on September 2, 2010.

[2] The plaintiff is a furniture store who sold a dining room set to the defendant’s parents (the “Bisaillons”). They were dissatisfied with the quality of the furniture and the service they received. The defendant is the adult daughter of the unhappy purchasers.

[3] The plaintiff alleges that by reason of the Bisaillon e‑mail and the allegedly untrue and defamatory words used, it has been severely injured in its credit, character and reputation as a business and has been brought into public scandal, odium and contempt and has suffered damages.

[4] The defendant has raised the defence of fair comment in the libel claim and has also counterclaimed against the plaintiff for slander.

[5] The defendant takes the position that there are triable issues in respect of both the plaintiff’s main action and the defendant’s counterclaim and that therefore this motion should be dismissed.

[6] The plaintiff states that the defendant cannot maintain the defence of fair comment and also seeks to dismiss her counterclaim.

Background

[7] The genesis of this action involves the parents of the defendant who, in May 2009, ordered a dining room set from the plaintiff furniture store. The price was set at $8,200 and delivery took seven months. The plaintiff ordered it from a supplier, Valentino, as the customers directed but unknown to these parties, it was to come from China. In December 2007, the store finally received the dining room set and found it to be damaged, particularly the table. The parties then engaged in discussions over many months as to what could be done to resolve the issue.

[8] The store had undertaken to order a new table on the day they delivered the furniture to the Bisaillon home. They then sent personnel to examine the set and attempt to repair it. Eventually, it was learned that it was not possible to effect repairs to the table in a manner that would be acceptable to the customers. The store also discovered that the table belonging to the set was no longer available as the branch of the company that was importing furniture had closed down.

[9] The company offered to pick up the table, return it to Montréal and have the company Valentino bring it up to Canadian standards or to build another table. This offer was refused by the couple.

[10] Eventually, the Bisaillons insisted on their money back.

[11] When this was not acceptable to the plaintiff store, the couple made a complaint to the Better Business Bureau (“BBB”).

[12] The result, after mediation, was that on December 5, 2008, the BBB reported that “subsequent to the mediation session, the BBB has determined that your business acted in good faith”. The BBB closed the complaint as “administratively judged resolved”.

[13] Displeased at this result, the parents began a Small Claims Court action in 2009. The trial was heard on February 24, 2010. Both plaintiffs and the store owner testified. Neither party was represented by counsel.

[14] The transcript is 124 pages long. I have reviewed it carefully. The deputy judge issued his judgment on July 26, 2010. In it, he noted that the damage to the table was discovered by the store. He noted that representatives had contacted the couple to offer them the choice of taking the set with the damaged table or waiting for the replacement and advised that they had sent in an order for a new table. The purchasers decided to take the set in its entirety at that moment, although it was understood that the table was to be replaced. Other defects were noted and some were repaired, although it appears perhaps not to the satisfaction of the Bisaillons.

[15] The trial judge noted that “the claimants had the use of the set for approximately 14 months”. He held that he was satisfied that “Prestige Furniture endeavoured to find a solution to settle this problem” and noted that the store owner testified he had spent approximately $1,500 in repairs and on consultations with experts on repairs. The trial judge nevertheless found that “the buyers were wronged in the transaction” and awarded $750 as compensation for the value of the table, saying “a partial monetary compensation is the only possible remedy”. He also ordered disbursements. The total amount was $925 and it was paid.

This Action

[16] We now come to the gist of the within action. Annie Bisaillon, the daughter of the customers sent an e‑mail from her place of work to 38 people asking that they forward it to others.

[17] As a preliminary matter, the defence sought leave to amend her pleadings to include a defence of justification to the libel defence.

[18] Although the application of rule 26.01 is in mandatory form “shall grant leave” – it is open to the court to find that there are insufficient particulars pleaded in support of this defence to show that it would an issue worthy of a trial and prima facie meritorious. Having evaluated the merits of this proposed pleading, I dismissed the motion to amend for oral reasons given as it was my view that it did not have a legal foundation and lacked sufficient particulars as was evident from the materials.

[19] The e‑mail is reproduced and attached as Annex “A”.

[20] The message was superimposed on a likeness of the logo used by the plaintiff.

[21] The plaintiff’s brother‑in‑law became aware of the e‑mail in the absence of the store owner, Mr. Lacroix. It had been sent to the store by one of the recipients. He telephoned the defendant’s employer to advise of what he considered improper use of Annie Bisaillon’s employer, the Museum of Civilization’s resources.

[22] The employer conducted an investigation, concluded Ms. Bisaillon had misused the e‑mail and disciplined her.

[23] The defendant was asked to apologize to Prestige Furniture but she refused to do so and has reiterated the statements which are alleged to be libellous.

[24] She has also admitted that her motivation was revenge for her parents since “truth is the best revenge”.

Analysis

[25] Defamation consists of three elements:

• the publication;

• to a third party;

• of a defamatory statement.

[26] The definition of a defamatory defence statement is “whether the words complained of, in their natural and ordinary meaning, may tend to lower the plaintiff in the estimation of reasonable persons or to expose the plaintiff to hatred, contempt or ridicule.” ( Dubuc v. 1663066 Ontario Inc. (c.o.b.Laurier Optical ). [2009] O.J. No. 1137 (S.C.J.) at para. 13 ).

[27] The evidence of the first two points of publication , and to third parties is admitted. At least 38 people received the e‑mail and possibly others.

[28] The defamatory words are alleged to be found not only in the words “untrustworthy company” and “deceitful” but in the defamatory “sting” arising from the message in its entirety. Such accusations would clearly affect a store’s reputation, character and business. I find the e‑mail has defamatory content.

[29] The defence of fair comment is pleaded and is a recognized defence. It is available if it meets the test set out in WIC Radio Ltd. v. Simpson , 2008 SCC 40 , [2008] 2 S.C.R. 420 at para. 28 .

[30] To meet that test, the words complained of:

(1) must be comment on a matter of public interest;

(2) the comment must be based on fact;

(3) a reasonable person could honestly express such a comment on the basis of the proven facts;

(4) the defamatory remarks, while they may include inferences of fact, must be recognizable as comment ; and

(5) The defence of fair comment is not available if malice is present.

(1) must be comment on a matter of public interest;

[31] The plaintiff states that this is not a matter of public interest, it is merely a personal commercial dispute. Annie Bisaillon submits the opposite.

[32] Relying on Mudford v. Smith , 2009 55718 (ON SC) , [2009] O.J. No. 4317, the defendant states that the public interest is found in the conduct of furniture businesses in Ottawa and their treatment of customers with respect to resolving complaints and acting with integrity.

[33] I cannot agree that this is a matter of public interest which has been described as one “… inviting public attention, or about which the public, or a segment of the public, has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached.” ( Grant v. Torstar Corporation , 2009 SCC 61 , [2009] 3 S.C.R. 640)

[34] That case clarifies the issue of what is or is not public interest. “The public interest is not synonymous with what interests the public” but “Some segment of the public must have a genuine stake in knowing about the matter published.”

[35] In Daboll v. DeMarco , 2011 ONSC 1 , O.J. No. 4 (S.C.J.) at para. 37, the court found, where a client published defamatory statements about his former lawyer, that there was no public interest in such matters of customer service.

[36] I find that there is no public interest here. Rather, there is a daughter’s attempt to support her parents in their private commercial dispute.

(2) the comment must be based on fact;

[37] The “comment” must be based on true facts. The defendant has not provided any evidence to prove the contents of the e—mail are true. She has led evidence as to her parents’ views of the service they received.

[38] The words used by the defendant in her e‑mail show that she does not have all the facts and appears to have based her conclusions on matters as reported or perceived by her parents and not on her first hand knowledge. A careful reading of the transcript of the Small Claims Court trial plus the judgment itself persuades me that the statements are not substantially true.

[39] There is no evidence before me to support a finding of the truth of these remarks.

(3) a reasonable person could honestly express such a comment on the basis of the proven facts;

[40] In my view, given the evidence, a reasonable person could not honestly express such an opinion.

(4) the defamatory remarks, while they may include inferences of fact, must be recognizable as comment

[41] They are phrased as facts, and not as opinion. The words state that the company is untrustworthy and deceitful. This can only be taken as facts, and as such, must be proven to be true, a factor with which I have already dealt.

[42] Comments which attack the honesty, trustworthiness, ethics, or greed of an individual or business are not comment ( Ruby v. Stratford City Gazette , [2006] O.J. No. 1325 at paras 28 and 47 ).

[43] I agree with the plaintiff that the defendant’s remarks are simply personal attacks which rely on a distortion of the facts as found in the Small Claims Court and the evidence of the parties at that trial.

[44] In my view, the e‑mail does not consist of comments and the facts stated therein are not true.

[45] The defence of fair comment is thus not available to the defendant.

(5) The defence of fair comment is not available if malice is present

[46] Even if that defence had been available to Ms. Bisaillon, the issue of malice would have disentitled her to the defence.

[47] Malice is defined as “… acting out of improper motive, that is, for a motive, an indirect motive, or an ulterior purpose other than the public interest …” ( Daboll , supra , para. 37 ).

[48] In arriving at a determination of malice, some of the telling factors, as set out in Smith v. Cross , 2009 BCCA 529 , 99 B.C.L.R. (4th) 214 at para. 34 are the following which are present in the case at bar:

The defendant has refused to apologize.

She encouraged the recipients of the e‑mail to republish it.

The defendant admitted in her discovery that “truth is the best revenge.

Question: “Revenge is what you wanted to get?”

Answer: “Revenge, the truth being revenge yes.”

(transcript of Examination for Discovery of Annie Bisaillon on January 17, 2011 at page 50, question 102).

[49] I find that malice was present here.

Is a Summary Judgment Appropriate ?

[50] The documentary record here allows the court to fully appreciate the evidence. ( Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 , 108 O.R. (3d) 1)

[51] My view is that I have been able to weigh the evidence and draw inferences from it.

[52] The defendant submits that there are a number of questions of credibility which require the full panoply of the trial process. I do not agree. Both parents and the furniture store owner have testified under oath. To relitigate the issues raised in the Small Claims Court would not be helpful.

[53] The defendant asserts that credibility findings lie at the heart of the dispute, including dealings between the defendant’s parents and the plaintiff, the extent of the damages to the dining set, the options offered by the plaintiff to repair the table. These were all canvassed in the Small Claims Court trial. A further trial on the same issues would be an abuse of process.

[54] Although the defendant has indicated further evidence would be called at trial, I am obliged to consider the evidence as it exists now. The defendant’s obligation was to “put her best foot forward” – a proposition often repeated in earlier summary judgment motions and reiterated in Combined Air Mechanical Services Inc. , supra .

[55] The evidence before me is neither difficult nor complex. There is little conflicting evidence. The furniture was delivered in a damaged state. Options and solutions were offered, discussed and rejected. There is no requirement here for multiple findings of fact. There are no significant numbers of witnesses.

[56] As has been set out in Combined Air Mechanical Services Inc. , supra, where the above factors are present, summary judgment is appropriate. Rule 20 provides for exactly those considerations.

[57] The attempt to re-try the issue of the furniture is seen in the mother’s affidavit filed in this action which includes numerous photographs of the damaged set. These photographs are not relevant as they would go to proving what happened to one set of customers in one commercial transaction.

[58] There was no appeal of the Small Claims Court judgment. A trial in this action would not be an appeal.

[59] The defendant’s statements as to the dishonesty and untrustworthiness has general application to the company as a whole, in all of its dealings. Even if the parents were correct in their perception and dissatisfaction, the comments would still not be true unless evidence of a much more general application had been tendered.

[60] A summary judgment in this case provides an appropriate means to ensure a just result. Judgment will go granting summary judgment to the plaintiff.

Damages

[61] The standard factors to consider in determining damages for defamation are summarized in Hill v. Church of Scientology of Toronto , 1995 59 (SCC) , [1995] 2 S.C.R. 1130 at para. 182 quoting from Gatley on Libel and Slander , (8th ed.) by Philip Lewis, London: Sweet & Maxwell, 1981.

[62] They include the conduct of the plaintiff, his position and standing, the mode and extent of the defamation, the absence or refusal of any retraction or apology and “the whole conduct of the defendant from the time when the libel was published down to the very moment of their verdict. …”

[63] I take note of the fact that the distribution of the e‑mail was to 38 people, although each recipient was encouraged to send it on. It is therefore unknown exactly how widely it was disseminated.

[64] The defendant has refused to apologize and has maintained her position about the company since the defamatory e‑mail was sent.

[65] The defendant has submitted that the plaintiff’s conduct was threatening and intimidating because a lawyer sent a letter to the defendant’s mother because she may have authorized the e‑mail or known about it before it was sent.

[66] Similarly, a lawyer’s letter was sent to the defendant’s sister who had forwarded the e‑mail to at least one other, and it asked for an apology and spoke of possible further action.

[67] Both of these letters were of a nature that could be expected when defamation is alleged and others may be supporting or furthering the defamation.

[68] I draw no adverse inference from these. The letters were neither threatening nor intimidating.

[69] While limited companies are entitled to damages for libel, in practice in the absence of proof of special damages, or of a general loss of business, generally the monetary amounts are somewhat lower than for defendants who are not corporations.

[70] With respect to damages, I fix these at $15,000.

[71] I decline to order aggravated damages as these are not available to a corporation who cannot complain of “hurt feelings” ( Barrick Gold Corp. v. Lopehandia (2004), 2004 12938 (ON CA) , 71 O.R. (3d) 416 (C.A.)).

Counterclaim

[72] The defendant advances a counterclaim of slander against the plaintiff on the grounds that:

(1) The owner’s brother‑in‑law called Ms. Bisaillon’s employer to complain about her use of the employer’s e-mail.

(2) Mr. Lacroix telephoned the defendant’s father to say, among other things, that he should put his daughter “in her place”.

[73] With respect to the first ground, the brother‑in‑law, Mr. Carl Brent, acted on his own initiative when he came into possession of the Bisaillon e‑mail while he was at the store. It had been sent to that location by one of the recipients of the e‑mail to whom it had been forwarded. Mr. Lacroix was dealing with the death of his father and Mr. Brent was helping out in his absence. He held himself out as an employee of the store when he was not.

[74] From the e‑mail sent from Ms. Bisaillon’s work place, he had determined that there had been improper use of the Canadian Museum of Civilization Corporation resources. He called the employer to complain of this and stated that she was spreading untruths and she should be disciplined.

[75] The employer investigated, later agreed that this was an inappropriate use of a work e‑mail and placed a disciplinary/warning letter in Ms. Bisaillon’s file.

[76] The words spoken to the employer were factual and the employer itself determined this as proven by the disciplinary action it took. The words spoken were justified and true.

[77] In my view, there is no merit in this ground.

[78] The next ground alleged in the counterclaim is that improper accusations were made by Denis Lacroix, the store owner, in a discussion he had with the defendant’s father.

[79] He admits the words which he spoke in a private conversation complaining of Mr. Bisaillon’s daughter’s conduct, among other things. He told the father he should put Annie Bisaillon “in her place” or words to that effect.

[80] There is evidence that Mr. Bisaillon and Mr. Lacroix, who were acquaintances of long standing, had an agreement that whatever happened at Small Claims Court – that would end the matter. Mr. Lacroix says in his affidavit that he also raised this issue during his conversation with Mr. Bisaillon.

[81] Mr. Lacroix’s comments to the defendant’s father cannot be said to be defamatory. They would not have the effect of lowering esteem or respect for the defendant in the mind of her father. The comments were spoken only to the father.

[82] The factual underpinnings of the counterclaim have no merit. Accordingly, I dismiss that counterclaim.

Costs

[83] I will receive brief (maximum of three pages) written submissions on costs within ten (10) days from the plaintiff and a further seven (7) days from the defendant.

The Honourable Madam Justice M. Métivier

Released: May 25, 2012

COURT FILE NO.: 10-49601
DATE: 2012/05/25

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: 2964376 CANADA INC. o/a AMEUBLEMENT PRESTIGE FURNITURE Plaintiff – and – ANNIE BISAILLON Defendant REASONS FOR DECISION Métivier J.

Released: May 25, 2012

Annex “A”

The text from the above e-mail is attached as Annex “B”.

Annex “B”

BUYERS BEWARE of PRESTIGE FURNITURE in Orléans !

Logo similar to Prestige Furniture’s

PRESTIGE FURNITURE is an untrustworthy company and I strongly advise you to think twice before putting your trust and money in their hands! Once Prestige Furniture had received full payment of a very expensive set, they delivered it BADLY damaged! Prestige Furniture’s own experts confirmed that the furniture was IRREPARABLE! Despite this, Prestige Furniture refused to give a refund or exchange the merchandise. We are all consumers and deserve to be made aware of deceitful companies who do to [sic] honour their Consumer’s Guaranty [sic]. BUYERS BEWARE!