ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: (Kingston) CV-07-467-00
DATE: 2012/AUGUST/20

BETWEEN:

Nelson Hunter and Michael Boyd and NAFCO (National Association of Federal Correction Officers) Applicant – and – Jason Godin and Pierre Mallette and UCCO-SACC-CSN (Union of Canadian Correctional Officers) Defendants

Christopher J. Edwards and Melissa Seal, for the Plaintiffs

Gary Hopkinson, for the Defendants

HEARD: January 23, 24 , 25,26 ,29, 30 and 31, 2012

tHE hONOURABLE MR. JUSTICE J. M. JOHNSTON

JUDGMENT

[ 1 ] The Plaintiffs, Mr. Hunter and Mr. Boyd, claim they were the subject of defamatory comments published by Mr. Godin in his capacity as Ontario Regional President of UCCO-SACC-CSN, in a Report he delivered orally and in writing at the General Assembly of the Defendant Union. The oral Report was delivered on May 7, 2007. The Plaintiffs allege the defamatory words referred to them by name and were not protected by Qualified Privilege. In the alternative the Plaintiffs argue, the privilege was defeated by reason of excess publication, the words used exceeded the privilege or the comments were motivated by actual malice. The Plaintiffs, Mr. Hunter and Boyd, claim General and Aggravated Damages.

[ 2 ] The Defendants dispute the allegation and, in the alternative, allege the comments are protected by the defence of Qualified Privilege, which the Plaintiffs failed to prove was defeated. The Defendants allege in their counter claim they were also defamed by two statements published by the Plaintiffs and suffered General Damages.

Statement alleged by the Plaintiffs in their claim to be defamatory :

[ 3 ] A Nail in the Heart of NAFCO - On October 19, 2004, the raiding NAFCO cell, backed by the International Machinists Union and about 6 to 10 supporters, held a meeting in Kingston to continue with their horse and buggy campaign of lies and untruths about UCCO-SACC-CSN. In a Region that they touted as their stronghold, they were greeted by about 90 UCCO-SACC-CSN members from Ontario Region to set the record straight, more or less putting an end to the deceitful lies conjured up by their leaders. Subsequent to that, the Regional Executive of Ontario moved to expel Mr. Hunter and Mr. Boyd from UCCO-SACC-CSN and this was finalized by the National Executive in early March 2005.

Statements alleged by the Defendants in their counter-claim to be defamatory :

[ 4 ] Master Key # Eleven: published February 14, 2006:

1. “The Master Key # Eleven: 100 Days of UCCO-CSN Negotiations = 45 Months of Disappointment:”

It’s not that we have an employer who is unwilling to negotiate: we have a union who is unable to negotiate! The Union’s game of smoke and mirrors continues; it still hides the truth, it still deflects responsibility for its ineptitude and now it claims that the new government will be our saviour…. Your hopes for a better future have been damaged because they were based upon promises UCCO- CSN knew, or should have known, it could not deliver. Unlike the current Union, NAFCO will be truthful to its membership and work for the money, benefits and respect we all deserve.

2. “Working together with the CSC”: March 3, 2006; publication

UCCO-SACC-CSN has finally proven they can work with Correctional Services Canada, the CSC. Unfortunately they are teamed up against your rights under the Public Service Act… It appears obvious that our Employer would prefer to continue dealing with a Union, which has no clout, no political labour support and very little knowledge of the system. The last 5 years has worked well for our Employer! Keeping the ineffective Union in place definitely makes their job easier!

Background :

[ 5 ] The Plaintiffs, Mr. Hunter and Mr. Boyd, are Corrections Officers employed by Corrections Canada and, as such, since 2001 until their expulsion in 2005, were members of the Union representing correction officers, UCCO-SACC-CSN (the Union of Canadian Correctional Officers.

[ 6 ] The Union of Canadian Correctional Officers (UCCO-SACC-CSN) is the exclusive bargaining agent for all federal correctional officers employed by Correctional Service Canada (representing approximately 6,800 correctional officers in 58 correctional institutions across Canada) since it was certified by the Public Service Labour Relations Board under the Public Service Labour Relations Act in 2001. UCCO unseated the Public Service Union as the official bargaining agent for federal correctional officers in 2001.

[ 7 ] UCCO began bargaining for a new contract with their employer, Corrections Service Canada in April 2002. The Collective Agreement was reached between UCCO and the Employer in June 2006; approximately fifty months after negotiations began; the longest round of collective bargaining in the history of the federal public service. Prior to the negotiating the June 2006 Collective Agreement, neither UCCO nor its parent CSN had ever bargained a federal public service Collective Agreement.

[ 8 ] Pursuant to the Public Service Labour Relations Act , S.C. 2003 c. 22 any bona fide employee organization was entitled to apply to displace UCCO as the bargaining agent for federal Correctional officers during the period 2002 to June 2006. Such applications are referred to as “raids”. To be successful , the raiding organization would be required to gain the support of the majority of correctional officers employed by Correctional Service Canada.

[ 9 ] Mr. Hunter and Mr. Boyd, along with several other correctional officers, formed an unincorporated association called the National Association of Federal Correction Officers (“NAFCO”) in 2003. NAFCO was formed with the purpose of displacing UCCO as the bargaining agent of federal correctional officers. Initially their small organization was known as NAFCCO, but in July 2004 they aligned with the International Association of Machinists and Aerospace Workers (“IAMAW”), which became known as IAMAW District Lodge 147. Upon involvement of the IAMAW, Hunter and Boyd took a leave of absence from Correction Services Canada (CSC) and went to work fulltime for IAMAW, in its efforts to “raid” UCCO. Mr. Hunter and Mr. Boyd were employed to provide information to other corrections officers about IAMAW District Lodge 147 and to assist in the raid. No other correctional officers were employed as full-time salaried employees of IAMAW during the raid.

[ 10 ] Pursuant to the legislation the raid was only “open” for NAFCO and/or IAMAW to challenge UCCO until a collective agreement was reached. The Collective Agreement was ratified by Correction Officers in June 2006, therefore the ‘open’ period ceased at that time, as did the efforts of the IAMAW and Hunter and Boyd to unseat UCCO. UCCO survived the raid and to this date continues to be the certified bargaining agent for Correction Officers. In June 2006 IAMAW District Lodge 147 ceased to exist.

[ 11 ] To further the raid, Mr. Hunter and Mr. Boyd organized 3 public meetings for correctional officers in Kingston, Ontario, on October 19, 2004. Approximately 90 correctional officers attended the main meeting in Kingston on October 19, 2004. Hunter and Boyd went back to work as Correctional Officers in May 2006.

[ 12 ] The Plaintiffs, Hunter and Boyd had a statutory right to be members of NAFCO and participate in lawful raiding activities against UCCO.

[ 13 ] Mr. Hunter and Mr. Boyd were expelled from UCCO by the National Executive of UCCO on March 3, 2005, in a motion moved by Mr. Jason Godin, one of the Defendants. The motions stated the two were to be expelled: “for working against the union and our collective bargaining process and mobilizing on behalf of another union against UCCO/SACC/CSN.”

[ 14 ] The Defendant, Jason Godin, has been an Ontario Regional President of UCCO since the Union was created and remains in that position today. Mr. Godin was on the bargaining team for UCCO until 2004 and is a member of the National Executive of UCCO by virtue of his position as Regional President for Ontario. The Defendant, Pierre Mallette, was elected National President of UCCO on the final day of UCCO’s National General Assembly meeting held May 7 to 10, 2007. He was not President at the time of the alleged defamatory statements made by either the Plaintiffs or the Defendant.

[ 15 ] The Defendant, Jason Godin, was the author of the UCCO Ontario Regional President’s Report, and presented it to the delegates and observers and guests at the Nation General Assembly. A letter was sent to the Defendants by the Plaintiffs lawyer after the President’s Report was delivered and requested an apology. No apology was ever made by the Defendants. This action was commenced by the Plaintiffs in September 2007. The Defendants filed a Statement of Defence and Counter Claim. Prior to issuing the Counter Claim, the Defendants did not raise an issue alleging the Plaintiffs defamed them and no apology was requested.

[ 16 ] The parties agreed at the conclusion of the case that NAFCO (National Association of Federal Corrections Officers) and Pierre Mallette be removed as parties to the claim and counter claim; without costs.

[ 17 ] I will deal first with the claims by the Plaintiffs Hunter and Boyd.

[ 18 ] Issues to be Determined at Trial: Main Action:

1. Was the May, 2007, Ontario Regional President’s Report defamatory of the Plaintiffs?

2. If so, does the defence of qualified privilege apply on the balance of probabilities?

(a) was it made by a person having a duty or interest in making it?

(b) was it made to persons having an interest in receiving it?

3. If so, have the Plaintiffs demonstrated that the privilege was exceeded, or that the maker of the statement was motivated by malice?

(a) whether the nature of the statements exceeded the alleged interests;

(b) whether the time of the statements rendered their communication unnecessary to satisfy the alleged interests;

(c) whether the manner of publication of the statements was excessive in relation to the interests allegedly served.

4. In the event liability is established, what are the damages?

(a) whether the Plaintiffs requested an apology, and whether one was provided;

(b) the impact on the Plaintiffs in their profession or calling;

(c) the impact on the Plaintiffs as individuals;

(d) whether punitive damages are appropriate in the circumstances;

(e) quantum of general damages.

[ 19 ] Was the May, 2007, Ontario Regional President’s Report Defamatory of the Plaintiffs?

[ 20 ] Lord Diplock said in Horrocks v. Lowe [1975] A.C. 135 at 149(CA) that:

“ English law gives effect to the ninth Commandment that a man shall not speak evil falsely of his neighbour.”

[ 21 ] The threshold inquiry in every action for defamation is whether there has been a defamatory statement. There must be a false statement of defamatory fact in order for the action to succeed. It has also been said that to be defamatory is to lower, degrade, discredit or disparage a person in the eyes of others, or at least right thinking persons, by remarks which engender a bad, or unsavoury, ill or evil opinion of the Plaintiff. Courts often ask whether the publication brings the Plaintiff into disrepute, deprives him of friendly intercourse in society, renders him contemptible, odious or ridiculous in the public estimation, throws contumely on him, or lowers his standing in the community, causing him to be shunned and avoided. (Brown on defamation, Chapter 4.2(2)) Words can also be defamatory if they have the effect of deterring others from associating or dealing with the Plaintiff. (Robins v. Pacific Newspaper Group Inc.50 BCLR(Fourth) 306.) The Plaintiffs both argue that the words used by Mr. Godin, Regional President for Ontario of UCCO, were defamatory. The Plaintiffs argue and rely on the natural and ordinary meaning of the words which they argue are prima facie defamatory and false. The President’s Report was delivered orally by Mr. Godin at the National Assembly of UCCO and was distributed in writing, contained in binders given to all delegates attending the National Assembly. The Plaintiffs’ complaint include “a nail in the heart of NAFCO”, “continue with their horse and buggy campaign of lies and untruths about UCCO– SACC-CSN”, “putting an end to the deceitful lies conjured up by their leaders”, “subsequent to that, the Regional Executive of Ontario moved to expel Mr. Hunter and Mr. Boyd from UCCO”. The Plaintiffs argue that the natural and ordinary meaning of these words, in fact, were understood to mean that the Plaintiffs were deceitful and liars and that the words call into question the Plaintiffs honesty and personal integrity. The Plaintiffs state these defamatory and libellous statements impugn their personal characters. The defamatory material refers to the Plaintiffs by name.

[ 22 ] Mr. Godin in his evidence does not dispute that the words he spoke and wrote in his Report were intended to be and were about the Plaintiffs, Mr. Hunter and Mr. Boyd.

[ 23 ] I have no difficulty in concluding that the impugned words uttered and written by Mr. Godin are capable of being defamatory and, in fact, are defamatory of Mr. Hunter and Mr. Boyd. There can be no doubt that the words are intended to convey to those receiving the words that Mr. Hunter and Mr. Boyd conducted a campaign of lies and untruths and that they themselves were liars and that they, as leaders of an organization attempting to unseat UCCO as the bargaining unit for Correctional Officers, conducted a campaign of deceitful lies. Further, I conclude that the words conveyed the idea that Mr. Hunter and Mr. Boyd were expelled from the UCCO bargaining unit by the National Executive as a result of their lies. The passage specifically names the two Plaintiffs.

[ 24 ] I find that Mr. Godin at the time of his defamatory comments was acting as a representative of the defendant union, UCCO-SACC-CSN.

Defence of Qualified Privilege:

[ 25 ] Having found that the impugned passages are defamatory, the next step is to determine whether the words were published on an occasion of qualified privilege.

[ 26 ] It is common ground in this trial that the statements were published. That is, they were communicated to third persons both at the National General Assembly and in writing. It is not seriously disputed that the statements of Mr. Godin are defamatory on their face in that the statements tend to lower the Plaintiffs’ reputation in the eyes of reasonable members of society.

[ 27 ] Two occasions of Qualified privilege include:

(a) Occasions on which statements are made in the discharge of a public or private duty; and

(b) occasions on which statements are made on a subject matter in which the Defendant and the person to whom the statement is made have a legitimate common interest. It is the occasion which is privileged, not the statement. (See: Willows v. Williams [1952] W.W.R. (NS) 657 (Alta) S.C.) and Masunda v. Johnson [1999] B.C.J. No. 2570 (B.C.S.C.) .

[ 28 ] The first issue in this case is whether Mr. Godin as Regional Vice-President of Ontario UCCO had an interest or duty, legal, social or moral, to make statements in his President’s Report and in his oral report to the National Assembly in May, 2007, and whether the recipients had a corresponding interest or duty to receive it. This reciprocity is essential. The defence of qualified privilege will not succeed where the communication was not pertinent to the privileged occasion, exceeded the scope of the occasion or was maliciously made: MacDonald v. Tamitic Status of Women [1998] B.C.J. No. 2709 (B.C.S.C.)

[ 29 ] In his text, the Law of Defamation in Canada, 2ed, (Toronto: Carswell, 1994) at pages 13–122 to 13-123, Professor Brown provides the following example of qualified privilege:

Members of a Trade Union are interested in information about activities of their officers and committees acting on their behalf. A Union, its officers and members, may circulate information amongst themselves concerning the qualifications of officers and the participation by them and other members in the affairs of the Union. This includes the use of Union newspaper to circulate its views and keep its constituency advised of its activities, policies and action taken with respect to its members…

A Union and its officers are privileged to criticize…the conduct and activities of a Union Vice-President, or the conduct of a Union secretary in the performance of its duties. It is privileged to circulate to its membership a report and minutes of conference, which include a resolution, passed by the conference relating to allegations against the member…

The members of a Union are privileged to criticize Union officials in the conduct of Union affairs.

[ 30 ] Mr. Godin was a Regional President of UCCO for Ontario. Mr. Godin was also a member of the Bargaining Unit of the Defendant Union for several years and, as a Regional President, sat on the National Executive of UCCO. The words complained by the Plaintiffs were published by Mr. Godin in his capacity as Regional President for Ontario of UCCO. The National Assembly is the ultimate governing body of UCCO and meets with its members through delegates at the assembly every three years. The National Executive takes its direction and authority from resolutions at the National Assembly.

[ 31 ] Mr. Godin testified that it was his duty to report on important activities pertaining to the Union in his jurisdiction in the preceding three years. The attempted raid by NAFCO and subsequently the International Machinists Union took place in the three years prior to the National Assembly. Mr. Godin testified that an important event in the attempted takeover by NAFCO of UCCO was a series of three meetings held in Kingston in October, 2004. Mr. Godin stated for this reason, he felt that it was his duty to report to the membership at large that the raid had taken place and the fact that these important meetings were held.

[ 32 ] I find the defence of qualified privilege applies in these circumstances. Mr. Godin, as Regional President for Ontario of UCCO, had a duty to fairly represent to the National Assembly important events that occurred in Ontario. It is true that NAFCO conducted other important meetings across Canada in 2004 (outside of Mr. Godin’s geographical jurisdiction), and Mr. Godin was the only Regional President to report on such activities. Nonetheless, I find that reporting on the Kingston meetings held on October 19, 2004, was within Mr. Godin’s duty. The persons attending the National Assembly included elected delegates from the UCCO union, observers, who are also members of the Union, and a small number of guests. There was little detail in evidence as to who these guests were. Mr. Godin stated that guests could have included speakers at the National Assembly and members of the larger Union, CSN. The purpose of the National Assembly was to inform members through the delegates, of events relating to the union that occurred within the past three years and to obtain a mandate moving forward for the National Executive. By its very definition, those in attendance at the National Assembly are interested in the events of UCCO. Accordingly, there is no difficulty in concluding that the occasion upon which the Godin statements were made orally and in writing was an occasion of qualified privilege. He had a duty or interest in making the statement and those in attendance at the meeting and those who received the binders containing the written President’s Report had an interest in receiving it. The content related to matters of UCCO and its daily life. The occasion was one for which qualified privilege applied.

Has the Plaintiff Demonstrated that the Privilege was Exceeded or that the Maker of the Statements was Motivated by Malice?

[ 33 ] Having found that the statements made by Mr. Godin were made on an occasion of qualified privilege, I next must consider whether the privilege was exceeded or lost. Qualified privilege attaches to the occasion upon which the communication was made, and not the communication itself. The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. Where the occasion is shown to be privileged, the bona fides of the Defendant is presumed and the Defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the Plaintiff. The privilege is not absolute, however, and can be defeated if the dominant motive for publishing the statement is actual or express malice. Malice is commonly understood in the popular sense as spite or ill will; it also includes indirect motive or ulterior purposes that conflict with the sense of duty or mutual interest which the occasion created. Qualified privilege may be defeated when the limits of the duty or interests have been exceeded. Manning and the Church of Scientology of Toronto v. S. Casey Hill 1995 59 (SCC) , [1995] 2 S.C.R. 1130 (S.C.C.)

Credibility of Mr. Godin

[ 34 ] Mr. Godin testified that he delivered his Regional President’s Report in May of 2007 to the National Assembly of UCCO and specifically the comments relating to Mr. Hunter and Mr. Boyd because he felt that he had a duty to do so. He testified that, as Vice-President of Ontario, he felt that the attempted take-over and raid of UCCO in the preceding three years by NAFCO was a significant event and that the informational meeting held by IAM/NAFCO and by Mr. Hunter and Mr. Boyd, in October 2004 was a significant event in the life of the UCCO union. Further, Mr. Godin testified that he objectively and honestly believed that Mr. Hunter and Mr. Boyd were lying when they made a number of comments about the UCCO, including UCCO was lying to its membership about whether they could negotiate pension changes in the Collective Agreement, whether they used the RCMP comparability study in their negotiations, whether the Union was democratic et al. Accordingly, if I were to find that Mr. Godin’s evidence is accepted and that he honestly believed statements he made in his President’s Report, that privilege stands and would not be defeated. Accordingly, it is necessary to examine the credibility of Mr. Godin’ evidence.

[ 35 ] After consideration of all of the evidence, I reject Mr. Godin’s evidence on all major points and specifically I reject his evidence that he held an honest view that Mr. Hunter and Mr. Boyd were lying in their comments about UCCO. I reject Mr. Godin’s evidence for the following reasons:

(1) Mr. Godin was evasive on several major issues when confronted in cross- examination. Mr. Godin testified in-chief that the informational meeting held by NAFCO, including Mr. Hunter and Mr. Boyd in Kingston in October, 2004, was a union meeting ‘like any other Union meeting’. He stated at the meeting there was a free flow and exchange of ideas. Mr. Hunter and Mr. Boyd testified that from their point of view the purpose of these meetings in Kingston was to inform UCCO members of NAFCO’s attempt to become the official bargaining unit for federal correctional officers and to answer correctional officers questions. Boyd and Hunter testified that National Executive Members of UCCO dominated the meetings and, at times, shouted Hunter and Boyd down and would not let them communicate their ideas. Mr. Godin attempted in his evidence initially to leave the Court with the impression that the meeting was a free-flowing exchange of ideas. Mr. Godin’s evidence was not internally consistent.

In cross-examination, Mr. Godin was confronted with the fact that there was a ‘action plan’ prepared by the National Executive of the UCCO to confront Hunter and Boyd at the meeting. Mr. Godin agreed in cross-examination that there was a plan and it was approved by the Executive. It is clear in reading the UCCO action plan the Kingston meetings were to be confrontational. The action plan at page 2 states:

“It is clear that the three meetings will have to be confrontational and forthright.”

Further the plan states:

“It is important to specify to the Memberships that IAM/NAFCO is outright lying. What is also important is that we do not use statements or expressions like, ‘you are mistaken’, or ‘that’s not quite right’. The statement, ‘YOU ARE LYING’ is the proper way to address them.”

Mr. Godin in his May, 2007, Report to the National Assembly, described that those attending the meeting were overwhelmingly in support of UCCO. He stated that 6 to 10 supporters of NAFCO were met by 90 UCCO members. It is clear that, at the time of the Kingston meetings, the National Executive of UCCO developed a strategy to show overwhelming force in an attempt to put down the raid. In a very real sense, UCCO was fighting for its very life and existence. It is not surprising that the leadership of the Union would take an aggressive stance in attempting to defend its position and to prevent a take-over. However, Mr. Godin’s testimony glossed over adversarial and confrontational nature of the meeting. Instead he testified that the meeting was much like any other union meeting with an exchange of ideas. The very fact that UCCO developed an action plan specifically for the three Kingston meetings is evidence of the fact that these were anything but an ordinary union meetings. Clearly Mr. Godin attempted to downplay the confrontational stance he and other UCCO Executive members took at the Kingston meetings. Mr. Godin’s evidence is not credible on this point.

(2) Mr. Godin downplayed his prior interaction with Mr. Hunter.

In response to an answer in-chief, Mr. Godin stated that he recalled meeting Mr. Hunter one time in 1999 (prior to UCCO being certified as the bargaining unit). He recalled he and Hunter spoke about trying to unseat the union as it existed at that time. In cross-examination, Mr. Godin was confronted with the allegation that he and Mr. Hunter met in 2002 at a Tim Horton’s in Kingston near the UCCO offices. It was suggested to him that the purpose of the meeting was Mr. Hunter seeking information as to how to go about unseating UCCO. Mr. Hunter indicated some of the Correctional Officers were upset with the Union and wanted to know how to go about de-certifying the Union. Mr. Godin initially stated that he did not remember the meeting; then he recalled that, in fact, there was a meeting with Mr. Hunter. He denied that he was angry at the meeting, but agreed that he did tell Mr. Hunter that the de-certification process was outlined in the Constitution of UCCO. Mr. Godin stated that he had simply forgotten this meeting with Mr. Hunter. Yet, within seconds of being confronted with the fact of the meeting with Mr. Hunter, Mr. Godin not only recalled the meeting, but remembered what is was about and recalled he was not upset at the request for information to de-certify the union for whom he served as a National Executive member. This meeting in 2002 was prior to Mr. Hunter actively organizing on behalf of NAFCO in period 2003 to 2006. Mr. Godin was not credible when he testified initially he really did not know Mr. Hunter. I find this is an example of how Mr. Godin was prepared to manipulate evidence he thought would not be helpful to himself or his union. His evidence lacked the ‘ring of truth’.

The meeting between Mr. Hunter and Mr. Godin was significant as it dealt with the very issue that would divide these two men for the next three years, namely, the take-over of UCCO as the official bargaining unit for Correctional Officers in Canada.

[ 36 ] Mr. Godin testified at the Examination for Discovery in this matter. He was asked at that time what ‘ lies’ he says Mr. Hunter and Mr. Boyd made that he relied upon at the time of his President’s Report to conclude that they were lying. Mr. Godin agrees that his list of lies he relied upon to the conclude that Hunter and Boyd were not telling the truth and was expanded after his testimony at the Discovery . In fact, the notification of expansion of this list was only given through a letter by his lawyer to Plaintiffs’ counsel two months before the trial. Mr. Godin’ explanation for adding to his testimony is that he was nervous at the Discovery, he had not given evidence before and he drew a blank on some of the facts and that he recalled them later.

[ 37 ] It is difficult to understand how it could take from the date of the Discovery to two months before commencement of trial for Mr. Godin to remember other “lies” that he was relying upon to form the conclusion that Hunter and Boyd were not telling the truth about UCCO. It is perhaps understandable that Mr. Godin was nervous at the Discovery and certain of the issues had slipped his mind at the immediate time of his evidence. However, there was a long gap between the Discovery and the trial, during which time one would have expected the corrections to the Discovery evidence to have been made. Further, Mr. Godin’s failure to recall details at the Discovery of how he came to the conclusion that Hunter and Boyd were lying is a significant lapse upon a major issue. Mr. Godin gave detailed evidence at trial on various comments said and written by Hunter and Boyd in an effort to convince the court that he had come to a conclusion that they were intentionally lying about UCCO. Yet at the Discovery Mr. Godin forgot several of the key reasons he now says he relied upon to conclude that Hunter and Boyd were untruthful.

[ 38 ] I observed Mr. Godin in the manner in which he provided answers in-chief and cross-examination. It was clear in cross-examination that Mr. Godin was extremely careful and guarded in his answers and took additional time to provide answers when confronted with potentially troubling questions. Mr. Godin was particularly guarded when asked whether Hunter, Boyd or NAFCO presented a threat to the UCCO Union at the time of his President’s Report in May of 2007. Mr. Godin paused and stated there was no threat from the raid as it was over.

[ 39 ] Mr. Godin, in addition to hesitating in his answers, was also defensive in many of his answers in cross-examination. For all of these reasons, I reject Mr. Godin’s evidence and find I cannot rely upon significant proportions of his evidence. I specifically reject his evidence that he honestly believed and concluded before his President’s report and before the Kingston meetings in 2004 that Mr. Hunter and Mr. Boyd were lying in some of their comments about UCCO. In cross-examination, Mr. Godin stated he did not know whether Mr. Hunter and Boyd were mistaken in some of their comments. I accept Mr. Godin’s evidence on non-contentious issues and as it relates to the structure of UCCO, the purpose of the National General Assembly and those who attended the Assembly.

Excess Publication

[ 40 ] The Plaintiffs argue that the defence of qualified privilege is lost because Mr. Godin presented his Report at the National Assembly at a time where other persons other than UCCO Union members could have been present. Specifically it is argued that a handful of “guests” attended the Assembly. There is no evidence that the guests were actually present at the time Mr. Godin’s Report was delivered. Furthermore, I find that any publication to such individuals was incidental. Also, it appears from the limited evidence available as to the identity of the guests, that they were persons interested in the Union, either guest speakers or members of the umbrella union organization, CSN. The Plaintiffs also argue that the written President’s Report was published to those who did not have an interest in receiving the Report, namely, non-union members at the various institutions. Delegates at the National Assembly are all Union members from across Canada at various Correctional Institutions. Delegates were provided with a binder of information including Mr. Godin’s written President’s Report. There was evidence in the trial that one such binder was found at the Joyceville Institution and that non-union members ‘could have’ had access to this information. The Plaintiffs presented no evidence beyond mere speculation that persons other than those with an interest in receiving the Godin report actually did receive it.

Intemperate Language and Statements Irrelevant to the Discharge of the Duty of Interest

[ 41 ] Having found that Mr. Godin’s President’s Report was made on an occasion of qualified privilege, I must next consider whether or not the privilege was lost due to the fact the statement was not relevant to the duty or interest upon which the privilege was founded, or whether or not the statement was so intemperate that it went beyond what was warranted on the privileged occasion.

[ 42 ] Qualified privilege may be lost where “what is published incorporates defamatory matter that is not relevant to the fulfillment of the particular duty or the protection of the particular interest on which the privilege is founded.” The information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when information was given. In Hill , Supra , Kory J. held:

Qualified privilege may be defeated when the limits of the duty or interest have been exceeded. As Loreburn E. stated in Adam v. Ward at pp.320-321:

…the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected.

[ 43 ] The Supreme Court of Canada has made it clear that “germane and reasonably appropriate” is an aspect of the assessment of the relevance of the words to the duty/interest being discharged or addressed.

[ 44 ] Rather than referring to the tone or choice of language, “germane and reasonably appropriate” refers to the scope of the comments and their relation to matters in controversy. What is relevant is not the choice of language, but its connection to the matters in controversy. The question, then, is not whether the defamatory words contained intemperate language, but whether that language was directed to the subject matter that gave rise to the privilege in the first place. A number of cases underline that, on an occasion of qualified privilege, a defendant shall be granted considerable latitude in his choice of language. In Arnott v. College of Physicians and Surgeons of Saskatchewan 1954 60 (SCC) , [1954] S.C.R. 538 , the Court adopted the dicta of Lord Dunedin in Adam v. Ward [1917] A.C. 309 at 328 :

These authorities, in my view, clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege, but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having a regard to all of the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purposes of his vindication, though, in fact, it was not so.

[ 45 ] I find that the defamatory words used by Mr. Godin in his President’s Report were wholly unconnected with and irrelevant to his duty as a Regional President of UCCO to inform Union Members of Kingston meetings and/or the IAM/NAFCO raid. I found that it was legitimate for Mr. Godin to inform the Union Members that a raid had taken place within the proceeding three years and the fact that meetings were held in Kingston in 2004. It was wholly unnecessary to the duty of information to refer to Mr. Hunter and Boyd as liars.

[ 46 ] In Hill , Supra, Supreme Court of Canada found the Defendant, Manning, failed to take reasonable steps prior to making his allegations against the Plaintiff at a news conference. The Court concluded:

“As a result of this failure, the permissible scope of his comments was limited and the qualified privilege which attached to his remarks was defeated.”

[ 47 ] Further the Court concluded:

“While it is not necessary to characterize Manning’s conduct as amounting to actual malice, it was certainly highhanded and careless. It exceeded any legitimate purpose the press conference may have served. His conduct, therefore, 2defeated the qualified privilege that attached to the occasion.

[ 48 ] I similarly find that Mr. Godin’s comments calling Mr. Boyd and Hunter liars exceeded any legitimate purpose that the President’s Report served. Therefore, in the circumstances, I find that qualified privilege attached to the occasion of the delivery of the President’s Report was defeated. In making this finding, as in Hill , it is not necessary to find actual malice.

Actual Malice

[ 49 ] In the event that I am wrong in concluding that Mr. Godin’s defamatory comments in his President’s Report exceeded the occasion of the qualified privilege, I go on to consider whether the Plaintiffs have established on the balance of probabilities Mr. Godin’s comments were motivated by actual malice.

[ 50 ] In the analysis of malice, I accept the Defendants’ arguments that Mr. Godin is entitled to be wrong in his conclusion that Mr. Hunter and Boyd were lying about UCCO, he may also be careless and flawed and his conclusion may be unreasonable, provided he objectively believed his conclusion that the Plaintiffs were lying. Further, Mr. Godin is entitled to rely on others without doing due diligence. The Plaintiffs argue that Mr. Godin and UCCO demonstrated a pattern that results in a finding of malice from prior to the Kingston meetings in October, 2004, to and including the date of delivery of the President’s Report in 2007. The Defendants argue the Plaintiff’s narrative of the pattern of malice is flawed and is based on a number of assumptions that cannot be proven.

[ 51 ] Firstly, the defence argues that the Action Plan for the Kingston meetings, wherein it was stated that NAFCO leadership should be called liars, is not evidence of malice. The Defendants argues an alternative conclusion based upon the evidence; namely : UCCO and its leadership came to the conclusion before the Kingston meetings that the NAFCO leadership was spreading lies about UCCO and that UCCO and Mr. Godin honestly believed that they were lies. As a result of the conclusion, UCCO developed the Action Plan that required NAFCO leaders to be called liars. Further, it is argued that it is not evidence of malice simply because UCCO and its Executive Members took an aggressive approach to the Kingston meetings. Being polite or aggressive at the meeting does not translate into proof of that Mr. Godin’s 2007 Report was motivated by malice .

[ 52 ] Secondly, the Defendant argues that expulsion of Mr. Boyd and Hunter from the Union is 2005 is not untoward, nor evidence of malice. It was Mr. Godin who moved at the National Executive level to expel both Mr. Hunter and Boyd. Notice was sent to Hunter and Boyd of the Union’s intention to expel them. In response, Hunter and Boyd retained counsel who directed a letter to the Union requesting particulars for the motion for expulsion. No particulars were provided and Hunter and Boyd did not attend the hearing. The Defendant argues that the lack of due process in the expulsion process does not itself constitute evidence of malice.

[ 53 ] Finally, counsel for the Defendant argues that for the Court to find malice it would have to ignore Mr. Godin’s evidence as to the purpose of his May, 2007, President’s Report and find that the dominant purpose of the Report was to injure the Plaintiffs.

[ 54 ] I agree with Defendant’s counsel that each of these issues in isolation do not constitute evidence of malice. Further the issue of malice is to be determined at the time the defamatory words were published: May 2007. All of the evidence must be considered as a whole, including the activity of UCCO , Mr. Godin and other National Executive members leading up to the 2004 Kingston meetings, the conduct at the Kingston meeting and the subsequent expulsion of Hunter and Boyd, without providing their lawyer with particulars for the reason of expulsion. They are factors that I can, and do, consider when considering if Mr. Godin’s President’s Report and specifically his defamatory comments about Mr. Hunter and Boyd were motivated by actual malice. I am left with the inescapable conclusion that there was concerted effort and plan to discredit members of NAFCO and anyone attempting to unseat UCCO as the official Bargaining agent for Federal Correctional Officers. The plan was reduced to writing prior to the Kingston meeting and I find it was pursued thereafter. The official position of UCCO was to be that NAFCO and Mr. Hunter and Boyd, in particular, were not simply mistaken when they made specific comments about UCCO and its bargaining tactics of its employer, but that they were ‘liars’. The purpose of calling opponents liars was tactical and was part of the effort to defeat the raid. As indicated earlier in this judgment, I reject Mr. Godin’s evidence that he independently assessed the evidence and came to his own conclusion that Mr. Hunter and Boyd were lying about UCCO. I further reject evidence that the leadership of UCCO itself considered all of the evidence and came to a similar conclusion. The evidence establishes on the balance of probabilities that all those attacking UCCO were to be called “liars” in an attempt to discredit them amongst other Correctional Officers and UCCO members. Mr. Godin and UCCO were prepared to say and do whatever they thought was necessary to defeat the raid. Notwithstanding the fact that the raid was completed by the time of Mr. Godin’s Report in 2007, he and UCCO pursued its tactic of calling opponents of the Union “liars”. While the raid by NAFCO started in 2003 and concluded by 2006, Mr. Godin and UCCO were no doubt concerned about the possibility of future raids. The pattern of conduct of UCCO and Mr. Godin throughout the time of the NAFCO raid was to attack, even if it meant personal attacks on leaders of the “raiding” organization. By singling out Mr. Boyd and Mr. Hunter in 2007, UCCO at its National Assembly was sending a clear message to prospective raiders. The tactic was a continued tactic of intimidation by defamation.

For the foregoing reasons, I conclude that the evidence established, on the balance of probabilities, that the dominant purpose of the defamatory portions of Mr. Godin’s comments in his President’s Report as it relates to NAFCO, Mr. Hunter and Mr. Boyd, was to single them out specifically. Mr. Godin’s purpose was not simply to inform members of an important event that occurred in the life of the UCCO Union. Rather, the purpose was to deter Mr. Hunter , Mr. Boyd and like-minded individuals in the future from attempting to raid UCCO. The case law is clear that, where the dominant motive is an ulterior motive to the duty existing on the occasion of privilege, actual malice is proven. Given the history and circumstances in the period of the raid, Mr. Godin was consistent. He rejected and became angry when Mr. Hunter approached him in 2002 about the de-certification process; he actively participated with the National Executive of UCCO to prepare an Action Plan to demoralize Hunter and Boyd in NAFCO at its informational meeting in Kingston in 2004. He is the one who proposed expulsion from the Union of Hunter and Boyd and he is the Regional President who delivered the defamatory words at the National Assembly in 2007. Given this history, there is no other conclusion that can be reached on the evidence, other than the dominant motive of the Report relating to Hunter and Boyd was to single them out and subject them to intimidation and ridicule. This motive significantly departs from the duty he had as a Regional President, to inform the union membership of important events. Evidence of the dominant purpose is found in the consistent approach of UCCO and Mr. Godin to call adversarial organizers ‘Liars’ , not simply people who have reached the wrong conclusion, or view facts differently.

Damages

[ 55 ] The Plaintiffs argue that the range of general damages for each of them is $50,000.00 to $65,000.00 and $20,000.00 for each Plaintiff in aggravated damages. In reply, the Defendant argues general damages should range from $5,000.00 to $12,000.00 on the particular facts of this case and that aggravated damages would not be appropriate. The Defendant argues that defamatory comments were contained in one publication, namely, Mr. Godin’s President’s Report. Defence argue that the publication was limited to those attending at the National Assembly, who would have heard Mr. Godin’s oral report and received a written copy in the binders that were delivered to each delegate. However, it is clear on the evidence that the intention of the National Assembly was that delegates of each Correctional Institution across Canada were to return to their Institution and disseminate the information from the Assembly to other Union members, this would include 6,800 members. There is no evidence at this trial that the Report was distributed beyond 6,800 Federal Correctional Officers in Canada.

[ 56 ] The Defendants also argue that damages ought to be reduced by the conduct of the Plaintiffs. The Defendants argue that the Plaintiffs, during the raid period on behalf of IAM/NAFCO, engaged in similar language when describing the effectiveness of UCCO as the official Bargaining agent for Federal Correctional Officers. I reject this argument as there is no correlation to the defamation by the Defendants and the alleged defamation by the Plaintiffs. The publications complained of by the Defendants were made by the Plaintiffs during the raid period, when emotions were high. The Defendants defamation was published after the raid period was concluded: it cannot be said to have been a reaction to the Plaintiffs publications.

[ 57 ] Case law is clear that general damages are presumed. On the issue of general damages I consider the fact that the Defendants retained legal counsel and requested an apology from the Defendants in response to Mr. Godin’s President Report. No apology was ever delivered.

[ 58 ] I further take into account that Mr. Hunter and Boyd are Correctional Officers and in a wider sense are considered peace officers. As peace officers, honesty and integrity are important characteristics. I cannot find sufficient evidence to differentiate between plaintiffs.

[ 59 ] I do not consider the Plaintiff’s argument that the Defendants attempted to lead evidence to justify defamatory comments. The evidence relating to justification was lead by the Defendants only on the issue of malice, where Mr. Godin’s honest belief as to whether or not the Plaintiffs were lying was a relevant factor.

[ 60 ] I considered the Plaintiff’s argument that the defamatory statements caused stress to both Plaintiffs and contributed to the poor health of Mr. Hunter. However, I am not satisfied that there is evidence linking the defamatory comments to medical evidence at trial.

[ 61 ] It is clear from observing Mr. Hunter and Mr. Boyd testify at trial, in general, UCCO’s aggressive approach in defending the “raid” was personally difficult for both of them and caused them significant grief.

[ 62 ] Accordingly, I find that the Plaintiffs are entitled to general damages based on the presumption that damages flow from defamatory statements, particularly, statements that accuse an individual of lying.

[ 63 ] I am mindful of the fact that each libel case is unique and little can be gained from a detailed comparison of awards made in other cases. Taking all of the circumstances into account, general damages to each Plaintiff shall be awarded in the amount of $25,000.00.

[ 64 ] In Hill Supra , the Supreme Court stated that, if aggravated damages are to be awarded, there must be a finding that the Defendant was motivated by actual malice, which increased the injury to the Plaintiff, either by spreading further afield the damage to the reputation of the Plaintiff, or by increasing the mental distress and humiliation of the Plaintiff.

[ 65 ] I have already found that the Defendants acted with malice at the time of publication of the defamatory words in May, 2007. While the ulterior motive in 2007 may well have been to dissuade persons other than Mr. Hunter and Boyd to avoid a future “raid” against UCCO, the end result is that both Plaintiffs were specifically named to all of their fellow Correctional Officers and referred to as liars. I consider in this head of damages again the fact that the publication was relatively narrow and on one occasion. The ulterior motive, which was found to be the dominant purpose of the defamatory statement itself, demands condemnation by the Court. Accordingly, it is my view that this is an appropriate case for aggravated damages, although it should be at the lower end of the scale, given the circumstances. Accordingly, I award aggravated damages in the amount of $7,000.00 each for Mr. Hunter and Mr. Boyd.

[ 66 ] Mr. Godin and UCCO are both jointly and severally liable for general and aggravated damages to Mr. Hunter and Mr. Boyd.

Counterclaim

[ 67 ] I now move to consideration of the counterclaim by the Defendants, Mr. Godin and UCCO-SACC-CSN (Union of Canadian Correctional Officers).

[ 68 ] Counsel for the Plaintiff concedes that the two statements alleged in the counterclaim are capable of being found to be defamatory. I agree that both documents, Master Key #11 published initially February 14, 2006, and publication issued March 3, 2006, “Working Together with CSC” are defamatory. Both documents were published on the web site of IAM-NAFCO. It was acknowledged by the Defendants at the Examinations for Discovery that, although Mr. Hunter and Mr. Boyd published the documents onto the web site, the web site itself was controlled by the International Machinists (IAM).

[ 69 ] There was an admission by Plaintiffs, Mr. Hunter and Mr. Boyd, that at the material time they were working for IAM-NAFCO when the documents were published. In cross-examination, Mr. Boyd resiled from the admission of publication. Admissions are made prior to trial and with the assistance of counsel. I place significant weight upon the admission and find as a fact that the admission made by Mr. Boyd is the truth and, therefore, both he and Mr. Hunter participated in publication of the two defamatory statements.

[ 70 ] There is no dispute the statements were defamatory of UCCO. The real issue is whether or not Mr. Godin was sufficiently identified in the statements.

[ 71 ] In the document known as “Master Key #11”, Mr. Godin is not referred to by name. The statement refers to UCCO-CSN and “the Union”.

[ 72 ] In the second statement issued March 3, 2006, “Working Together with CSC”, Mr. Godin is, again, not mentioned by name. Specific reference is made to UCCO-SACC-CSN and “a Union”. Further, the statement refers to keeping the “ineffective Union” in place. It is uncontradicted evidence that Mr. Godin was a member of the National Executive at the time of these two publications. As detailed in my Judgment in relation to the main claim, Mr. Godin was Regional President for Ontario. Mr. Godin also served as a member of the Bargaining team on negotiating the Union contract with the employer. Counsel for the Defendants argues that, while Mr. Godin is not specifically named, he was undeniably one of the leaders of the Union and National Executive Member and, therefore, the defamatory comment was directed at him. The test whether Mr. Godin has been identified in the defamatory statement is an objective test. Factors to consider are the size and nature of the group and the generality of the allegation. The smaller the group, the more likely it is that the defamatory comments refer to members of that group. In my view, Mr. Godin has not been sufficiently identified. These statements specifically do not name individuals and refer to the Union generically. While I do consider the relatively small size of the union leadership, it does include National Executive members as well as local representatives in each institution. The group is not so small that the comments objectively viewed refer to Mr. Godin.

[ 73 ] In order to find that Mr. Godin was personally the subject of defamation, he as Plaintiff by Counterclaim, has the onus to establish on the balance of probability that the publication is of and concerning him personally. It is not sufficient for a Plaintiff to merely show that he was a member of that class or organization that was the subject of the defamation. The question is whether the words are capable of referring to each and every one of the Plaintiffs within the group or class.

[ 74 ] Accordingly, I find that the defamatory comments were defamatory of UCCO, but not Mr. Godin personally.

[ 75 ] The defamatory comments were made during the period known as the “raid”. I find that both IAM/NAFCO and UCCO were making accusations against one another during the raid period.

[ 76 ] The Plaintiffs, Defendants by Counterclaim, argue that qualified privilege applies to these statements. While I agree that both publications were made on an occasion of qualified privilege, the privilege is exceeded by excessive publication. Both statements were published on the internet. While there is no specific evidence that persons other than those with an interest in receiving the publication did, in fact, receive information, it is very likely. Publication on the internet by its very nature indicates that the general public will have access to the information. Clearly, the general public has no interest in receiving the IAM/NAFCO statements as they relate to UCCO. Only Federal Correctional Officers would have an interest in receiving such a publication. In my view, it is not an excuse that the internet was the most convenient way to communicate with Correctional Officers. The fact is that the method of publication chosen by the Defendants in the Counterclaim would inevitably result in members of the general public receiving the publications.

[ 77 ] The Defendants by Counterclaim also argue the defence of fair comment. To be valid as a defence, fair comment requires that the maker of the statement makes comments based on true facts, that is, facts that are demonstrated to be true as proven in the proceedings. In the second publication, “Working Together”, the Defendants by Counterclaim allege that the Union has “teamed up against your rights”. These assertions are analogous to “facts”, not “comment”. An allegation of collusion between the Union and employer is, in my view, an assertion of facts. I find there is no evidence establishing on a balance of probability that UCCO teamed up with the employer against the workers’ rights. It is not based on true facts proven in this case. Accordingly, the defence of fair comment must fail.

Damages

[ 78 ] I now turn to the issue of general damages awarded to UCCO by reason of the defamatory statements made by the Defendants by Counterclaim. Counsel for the Plaintiffs by Counterclaim acknowledges that the Union is entitled to nominal damages, as a Union is not an entity subject to hurt feelings, distress or humiliation.

[ 79 ] In assessing general damages, I take into account the fact that the publications were made naming the Union only and not mentioning specific members of UCCO. While the publications were made on the IAM web site, Mr. Hunter and Mr. Boyd lost control of the web site in a relatively short period after the documents were posted.

[ 80 ] I also consider the defamatory statements were made during an intense fight between UCCO and IAM/NAFCO for the right to become the Bargaining agent for Federal Correction Officers. There was no malice involved in the defamatory statements. Neither UCCO nor any of its National Executive Members requested retraction of the statements. No apology was ever requested. It was admitted by Mr. Godin that the IAM/NAFCO web site was monitored regularly by members of UCCO. Accordingly, the UCCO Executive was aware defamatory comments were being made about the Union and they chose to not ask for a retraction or an apology.

[ 81 ] In all of these circumstances, I assess general damages payable jointly by Mr. Hunter and Mr. Boyd to the Plaintiff by Counterclaim, UCCO, in the amount of $1,500.00.

[ 82 ] Costs if not agreed upon between counsel shall be resolved by written submissions limited to five pages together with a bill of costs. Counsel shall exchange submissions, then file them with the Court in Kingston, Ontario.

The Honourable Mr. Justice J. M. Johnston

Released: August 20, 2012

COURT FILE NO.: (Kingston) CV-07-467-00
DATE: 2012/AUGUST/20

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Nelson Hunter and Michael Boyd and NAFCO (National Association of Federal Correction Officers) Plaintiffs and Jason Godin and Pierre Mallette and UCCO-SACC-CSN (Union of Canadian Correctional Officers) Defendants JUDGMENT The Honourable Mr. Justice J. M. Johnston

Released: August 20, 2012