ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 99/2012 Cay
DATE: 2013-June-7

RE: Jacqueline Catherine May vs. Rebecca Elizabeth Guzzo

BEFORE: The Honourable Mr. Justice D.J. Gordon

HEARD: April 30, 2013

COUNSEL: Jacqueline Catherine May appearing in person

No one appearing form Rebecca Elizabeth Guzzo

The Honourable Mr. Justice D. J. Gordon

Reasons for Decision

[1] The plaintiff, Jacqueline Catherine May, has sued the defendant, Rebecca Elizabeth Guzzo, seeking damages for slanderous statements. The action was not defended. The trial dealt with an assessment of damages.

Background

[2] Ms. May resides in Cayuga, Ontario. She is 43 years of age. Ms. May is employed as a teacher with the Brant Haldimand Norfolk Catholic District School Board at the St. Patrick’s School in Caledonia.

[3] Ms. Guzzo resides in Hamilton. She was involved in a common law relationship with Christopher Bastarache, son of Ms. May. They have twin boys, age 2. Ms. Guzzo and Mr. Bastarache are involved in litigation pertaining to the custody of their children and other related issues. The litigation is acrimonious, having regard to Ms. Guzzo’s affidavit, sworn April 26, 2013, filed in the Family Court and at this trial.

[4] On April 29, 2012, Ms. May provided an affidavit in the Family Court proceeding, in support of her son’s application for custody. In this affidavit, Ms. May reported, amongst other things, “emotional and mental abuse against Christopher at the hands of Ms. Guzzo” and that she had “…seen Ms. Guzzo use marijuana on a regular basis, allegedly for pain management.”

The Defamatory Statement

[5] On May 29, 2012, Ms. Guzzo called Angela Giumelli, principal at St. Patrick’s School. It is reported that Ms. Guzzo expressed her concern about drug use, that Ms. May had witnessed minors smoking marijuana at her house and that Ms. May had not reported the incident at the time. Ms. Guzzo went on to say Ms. May was now only reporting the marijuana use to the court to assist her son in obtaining custody of their children.

[6] Ms. Giumelli called Ms. May to the office following the conversation with Ms. Guzzo. Ms. May indicated that Ms. Giumelli was not accepting Ms. Guzzo’s remarks as valid, however, she advised that a report would have to be placed in Ms. May’s personnel file, presumably in accordance with the School Board policy.

Demand for Retraction

[7] On May 31, 2012, Ms. May delivered a message to Ms. Guzzo, by Face book, demanding a written retraction of her statements to be delivered to the principal within one week.

[8] Ms. Guzzo replied to Ms. May saying:

“Exactly and I will be calling with the boy who was here when you were smoking with us to have him give a statement back off lady and stop throwing stones, you should have reported it, that is your job, do not contact me again.”

[9] Ms. May took this message as a threat by Ms. Guzzo to make further contact with the principal. The statements were not retracted by Ms. Guzzo.

Litigation

[10] Ms. May commenced this action by statement of claim issued on July 9, 2012. Initial service of the document on Ms. Guzzo was made by Christopher Bastarache according to his affidavit of service, sworn July 10, 2012. Given Mr. Bastarache’s involvement, particularly as the former common law spouse of Ms. Guzzo, on April 30, 2012. I directed the statement of claim be served by the sheriff. That occurred on September 19, 2012, according to the affidavit of service of David MacDonald, sworn September 21, 2012.

[11] No statement of defence was served or filed by or on behalf of Ms. Guzzo.

[12] Ms. May brought a motion seeking to have Ms. Guzzo noted in default and for summary judgment. By endorsement, dated January 14, 2013, I directed Ms. Guzzo be noted in default and, pursuant to Rule 19.05 (3), Rules of Civil Procedure, that the case proceed to trial for an assessment of damages.

[13] The trial took place on April 30, 2013, without notice to Ms. Guzzo, as she was in default.

Evidence at Trial

[14] Ms. May denies the validity of the statements made to her principal by Ms. Guzzo. While she believes the principal to be supportive, Ms. May is concerned that defamatory remarks have been made in her workplace to her superior with a report placed in her personnel file. There is a further concern as to who might have access to this file and what use may be made of the report, such as on an application by Ms. May for a different teaching position or for a promotion.

[15] Ms. May described Ms. Guzzo as manipulative. She feels Ms. Guzzo’s motive in making defamatory remarks to her principal was to intimidate her in connection with the family law litigation.

[16] Ms. May went on to speak of further disparaging remarks by Ms. Guzzo in the recent affidavit previously mentioned. In this affidavit, Ms. Guzzo says the threatening calls to the principal were made by parents of students in Ms. May’s class due to her inappropriate conduct. Ms. Guzzo also makes further references to Ms. May’s involvement in marijuana use and accuses Ms. May of writing letters in the names of other persons regarding Ms. Guzzo’s drug use that were presented with Mr. Bastarache’s initial custody application.

[17] Although the defamatory statements have been upsetting for Ms. May, she has only wanted a retraction from Ms. Guzzo. A retraction has never occurred.

Law

[18] By virtue of Rule 19.02, Ms. Guzzo is deemed to admit the truth of the allegations of fact made in the statement of claim. The admitted facts pertain to the defamatory statement, indicating criminal activity, made by the defendant to the plaintiff’s employer.

[19] The case law has established the following factors to consider in determining the quantum of damages:

a) the plaintiff’s position and standing in the community;

b) the nature and seriousness of the defamatory statements;

c) the mode and extent of publication;

d) the absence or refusal of a retraction or apology;

e) the possible effects of the statements upon the plaintiff’s life; and

f) the motivation and conduct of the defendant.

See Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130 (S.C.C.); Barrick Gold Corp. V. Lopehandia, (2004), 2004 12938 (ON CA), 71 O.R. (3d) 416 (Ont. C.A.); and Dinyer-Fraser v. Laurentian Bank of Canada, 2005 BCSC 225.

[20] Slander affecting professional reputation does not require a plaintiff to prove special damages, as established by section 16, Libel and Slander Act, R.S.O. 1990, Chap. L. 12.

Analysis

[21] Having regard to the aforementioned factors, in my view, the following are the significant considerations in this case:

i) the defamatory remarks allege criminal activity;

ii) the remarks were made to Ms. May’s employer;

iii) the remarks were made with malice, intending to cause Ms. May difficulty in her employment and, of particular concern, to intimidate Ms. May in regard to the family law litigation; and

iv) the refusal to retract the defamatory remarks.

[22] Although Ms. May is troubled by the continuation of these remarks in the family law litigation, such are not actionable in this case. No doubt, the issue of the allegation will be addressed by that trial or motions judge.

[23] Ms. May is entitled to a damage award. Although she seeks punitive damages, the appropriate classification from the case law is general damages.

[24] Given the relevant factors in this case, I assess damages at $10,000.00. Malice and the refusal to retract are unacceptable.

[25] Ms. May has represented herself in this proceeding. She has incurred expense and taken time off work to attend court. I award her costs fixed in the amount of $750.00, inclusive of disbursements and HST.

Summary

[26] For the foregoing reasons, Ms. May are granted judgment against Ms. Guzzo for:

a) damages of $10,000.00 and

b) costs of $750.00.

Gordon, J

Released: June , 2013