COURT FILE NO.: 25689/11
DATE: 20120917
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOE-TOM SAYERS
Plaintiff
– and –
DOROTHY ELIE and FRANCES ELIE
Defendants
Michael F.W. Bennett, for the Plaintiff
No one appeared on behalf of the Defendants
HEARD: August 24, 2012
t. mcewen j.
reasons for decision
introduction
[1] The Plaintiff Joe-Tom Sayers (“Sayers”) brings this action against the Defendants Dorothy Elie (“Dorothy”) and Frances Elie (“Frances”) seeking damages for defamation with respect to a letter signed by Frances dated September 27, 2011.
[2] Sayers resides on the Obadjiwan Reserve of the Batchewana First Nation. He currently works for Nebenaigoching Heritage Inc. (“NHI”) and has held various positions at NHI for a number of years. Dorothy is a former employee of NHI. She also resides on the Obadjiwan Reserve and is an elected councillor with the Batchewana First Nations. Frances lives nearby in the community of Batchewana Village. Frances and Dorothy are sisters-in-law.
[3] The letter reads as follows:
To whom it may Concern:
We the residents of Batchewana Village, a Batchewana First Nations, Obadjiwan Reserve are concerned about the goings on of the Nebenaigoching Heritage Inc. It is our understanding that this faction was for the betterment and healing of Aboriginal communities in this area. Instead it has fractured this community by separating families and making bad friends. We have many questions that we would like answers to such as:
How are the board of directors chosen? It is our understanding that they are handpicked. If there was elections held we were not notified. At present we understand that Joe Tome Sayers and his immediate family members including his common law wife are sitting on the board.
Where has all the hundreds of thousands of dollars, received from the government of Canada being spent? We have seen little or none of this in our community.
Is all this funding being audited by the government? I.e. Artifacts collections stored who knows where. It is our understanding that some are stored with First Nations on Manitoulin Island.
Why is staff being hired outside the community? The only time locals are hired is to do “Joe” jobs for Joe Tom Sayers.
Who paid for a trailer that was supposedly purchased by Joe tom Sayers for an office? This trailer was moved onto Obadjiwan Reserve where Joe Tom Sayers lives, without authority from Batchewana First Nations. This trailer has since been rented out to individuals for a residence.
Who pays for the up keeps of the former C.O. Sommes School which is being controlled & maintained by Joe Tom Sayers for a community centre. This place is a disgrace. Dirty, toilets not working, phone cut off; grass not cut and it is our understanding that the power utilities are in arrears.
Please do not disgrace the name of Nebenaigoching who was a very powerful man. If here were living today this situation and persons involved in the incorporation would be harshly dealt with at Sunrise.
Sincerely,
Signed on behalf of the residenst of Batchewana Village’
Frances Elie
[Signature]
Box 162, Batchewana Bay, Ontario, P0S 1A0
CC
Minister for Health Canada
Director of Shingwauk Knoomaage Gamig
Minister of Ontario Trillium Foundation
Chief and Council of Batchewana First Nation
David Orazietti MPP.
Bryan Hayes MP.
Minister for Financial Consumer Agency of Canada
Minister for Human Resources and skills Development Canada
Minister for Natural Resources Canada
District Manager of Natural Resources Ontario Parks
Minister for Canada Revenue Agency
Nebenaigoching Heritage Inc.
Mr. John Stadnyk Director of Huron Superior Catholic District School Board
Mar. Mario Turco Director of Algoma District School Board
President of Algoma University
President of Sault College
Mayor Amaroso Sault Ste. Marie
Chief and Council of Garden River First Nation
Minister for Aboriginal Affairs
[4] Sayers alleges that the contents of the letter were false and defamatory. He also asserts that although Dorothy did not sign the letter, she is the sister-in-law of Frances and was involved in its creation and distribution.
[5] As a result of the distribution of the letter and the alleged defamation and falsehoods, Sayers claims general damages for pain and suffering, aggravated damages, damages for loss of income and punitive damages along with prejudgment interest and costs.
[6] Both Dorothy and Frances have been properly served with the Statement of Claim and noted in default. The matter proceeded to trial on an undefended basis. The trial took less than two hours with only Sayers testifying.
The Letter
[7] Although the letter was addressed to a number of individuals and/or organizations, Sayers testified that he could only state, to his knowledge, that the letter was received by the Director Shingwauk Kinoomaage Gamig, Chief and Counsel of Batchewana First Nations, Mr. Mario Turco, Director of Algoma District School Board and NHI. He had no proof that it was sent to or received by any of the other addressees.
[8] With respect to the issue of distribution, Sayers did, in my view, establish on the balance of probabilities that the letter was sent to the four addressees noted above. Since he could not, however, provide any evidence with respect to the remaining addressees I cannot find that on the balance of probabilities the letter was forwarded to them.
[9] With respect to the creation of the letter, Sayers also testified the he had no firsthand knowledge that in fact Dorothy was involved in the creation or distribution of the letter.
[10] In his affidavit, which I allowed him to refer at trial, Sayers deposed that he believed Dorothy was involved in the letter’s creation and distribution for the following reasons:
The letter refers to the residents of the Obadjiwan Reserve and Frances does not live there, but rather it is where Dorothy resides;
The letter lists 19 addressees. Sayers believes that only Dorothy would be able to identify these 19 persons, given her former employment at NHI and her work as a council member of the Batchewana First Nations;
The text of the letter is consistent with Dorothy’s animosity towards him;
Dorothy has not defended the action.
[11] Notwithstanding the fact that the action has not been defended, I am mindful of the fact that I do have to perform a gatekeeper function to determine whether it would be appropriate to grant judgment in any particular case.
[12] In this case, I cannot conclude that there is sufficient evidence to find for Sayers against Dorothy. He offered no real proof to this court that Dorothy was involved in the creation of the letter. His suspicions as to how Dorothy may have been involved, in my view, fall far short of establishing liability on the balance of probabilities. The only evidence that carries weight at all involves Dorothy’s knowledge of the identity of the 19 addressees. This, however, falls well short of establishing that in addition to perhaps providing this information to Frances (assuming Frances could not have obtained the information on her own) that Dorothy went further and participated in the creation of the letter. There is no evidence to establish this fact.
[13] Accordingly, the action against Dorothy must fail.
[14] I accept, however, that Frances was the author of the letter given her signature and name on it, and her failure to defend the action.
Was the Letter Defamatory?
[15] In my view, the words contained in the letter were defamatory in that they imputed improper and disreputable conduct to Sayers. Any common sense reading of the letter would lead one to the conclusion that Sayers was acting improperly with respect to his connection to NHI, with respect to the appointment of the board of directors, hiring of staff, receipt of a trailer, and maintenance of the C.O. Sommes School. It appears as though the letter was also mailed to the recipients and was not distributed via the internet. This is a consideration with respect to the seriousness of the libel. It is, however, reasonable to conclude that the letter disseminated throughout the small community where Sayers resides given that it was sent to NHI.
damages
General Damages for Pain and Suffering
[16] In assessing damages the following factors are relevant:
• mode and extent of publication
• nature and seriousness of the libel
• position and standing of the plaintiff
• importance of reputation for working life
• stature of the defendant
• evidence the libel was believed
• difficulty of remedying the libel
• conduct of the defendants: prior to, at the time of and after publication
• reputation and conduct of the plaintiff
See Peter A Downard, Libel, Second Edition pp. 228-244
[17] There is no doubt that Sayers has stature in his community given his work history and that his stature is important to him both personally and professionally.
[18] Unfortunately, as noted, no one attended at trial except for Sayers. While he briefly did testify that he was upset by the context of the letter the nature of the harm seemed to be quite modest. When one also considers the other factors, particularly the limited distribution of the letter, and the fact that there was no evidence that the libel was believed, I have come to the conclusion that general damages for pain and suffering should be modest in nature. I assess them at $5,000.
Aggravated Damages
[19] Aggravated damages are intended to provide additional conversation where the plaintiff has sustained additional harm as a result of the highhanded or oppressive conduct of the defendant. It must be determined that the defendant was motivated by actual malice and that in fact increased the injury to the plaintiff: see Peter A Downard, Libel, Second Edition pp. 253-254.
[20] In this case I cannot conclude that there was actual malice or that it increased Sayers’ injury. There was no evidence with respect to the conduct of Frances either before or after the delivery of the letter and the contents of the letter themselves do not, in and of themselves, constitute malice.
Income Loss
[21] Sayers testified that he has remained employed since the time the letter was published but that his existing contract with NHI expires in September of 2012 and he has not yet obtained other employment. He testified that he has applied for jobs with Batchewana First Nations and has been unsuccessful. He has also testified that the Minister for Health Canada has not continued funding with NHI. He testified that in his opinion the letter impacted his ability to obtain the employment and decision to terminate the funding to NHI. He did not, however, introduce any corroborating evidence. In my view his evidence on this point, without proof, was speculative, particularly in light of the fact that he was prepared to draw broad conclusions as to the general effect that the letter may have had on the addressees. Furthermore, it is clear from his evidence that Sayers has also had ongoing difficulties with the Government of the Batchewana First Nations which resulted in the Chief and council addressing a letter to NHI outlining problems they were having with NHI and Sayers. Although Sayers attributed this to his difficulties with Dorothy and Frances, there was no supporting evidence of this allegation.
[22] Based on the above I cannot conclude that he sustained any loss of income.
Punitive Damages
[23] I do not award any damages in this regard. There is no evidence that Frances’ misconduct was so malicious, oppressive and highhanded that it offends the court’s sense of decency. Even though the letter was defamatory, there is no pattern of ongoing or particularly egregious conduct that would warrant this court’s expression of outrage. In my view, the award of general damages would be sufficient to achieve the goal of punishment and durance.
disposition
[24] Based on the foregoing, Sayers is entitled to judgment against Frances in the amount of $5,000 plus prejudgment interest, calculated and pursuant to the provisions of the Courts of Justice Act and costs.
[25] As requested by Sayers’ counsel, he can make submissions to me in writing concerning costs (not to exceed 3 pages in length).
T. McEwen J.
Released: September 17, 2012
COURT FILE NO.: 25689/11
DATE: 20120917
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOE-TOM SAYERS
Plaintiff
– and –
DOROTHY ELIE and FRANCES ELIE
Defendants
REASONS FOR DECISION
T. McEwen J.
Released: September 17, 2012