ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-09-539
DATE: 2013-02-05
B E T W E E N:
LYNDA POWLESS
Howard E. Staats, Q.C., Counsel of the Plaintiff
Plaintiff
- and -
CLAUDINE VANEVERY-ALBERT AND SIX NATIONS OF THE GRAND RIVER BAND OF INDIANS
Jack Fitch, Esq., Counsel of the Defendants
Defendants
HEARD: January 21-24, 2013
REASONS FOR JUDGMENT
Crane, J.
[1] The plaintiff, Linda Powless, claims damages for defamatory libel against the defendants Claudine VanEvery-Albert for writing and publication of an article which was approved and published by the defendant Six Nations of the Grand River Band of Indians in the newsletter of the Six Nations’ Elected Council Publications dated May, 2009, Vol. VI.
Matrix of the Litigation
[2] There has been for many years a disagreement between the federal Crown and the Six Nations of the Grand River Band over ownership of lands, among others, a tract of land known as Plank Road. Although not active in discussion with the Crown, the sense of entitlement to these lands was sentient.
[3] In or about 2005, that certain parcel of lands was acquired and planned for development by Henco Limited for a residential housing development. These lands are within the Town of Caledonia and adjacent to the Six Nations Reserve.
[4] Under the Land Titles Act of the Province of Ontario certified the owner of those lands by registration as Henco Limited. The responsibility to maintain the peace and enforce the law for the Town of Caledonia was (and is) the responsibility of the Province of Ontario through the supervision of the Ontario Provincial Police.
[5] Henco applied for and obtained building permits issued by the Town of Caledonia for a project to be known as the Douglas Creek Estates (DCE). The first phase of this project was well underway with some homes nearing completion, others at various stages of construction when the land was initially occupied / reclaimed in February, 2006, by several clan mothers of the Haudenosaunee people of the Six Nations of the Grand River Reserve. The developer applied and was granted an ex parte injunction. This led to more persons of the Haudenosaunee joining the occupation. An interim injunction was granted to the developer, Henco. Issues arose about the enforcement of that injunction. There was ultimately a major police presence on the property to clear the occupiers which in turn resulted in a large influx of people and then a ‘blow-back’. This resulted in considerable property damage and breaches of the peace. There was, thereafter, a stand-off with barricades and buffer zones, disturbances, charges and counter-charges. This started about February of 2006 and continued until the purchase of the lands from the developer by the Province of Ontario and the permission in late 2007from the Provincial Government for the presence of the occupiers on the land; exhibit 2, tab 25 at p. 6; tab 44; tab 52, tab 18 and tab 87.
[6] History is also required for context. It is well known that the Iroquois peoples’ are recognized for their assistance and loyalty to the British Crown during the American Revolutionary War. This resulted in their displacement from their hereditary lands in the Finger Lakes Region of New York State following the war. Some of those displaced were granted what is known as the Haldimand Tract, originally being six miles on each of the Grand River from its mouth to its source. Many of the Iroquois peoples, after a good deal of difficulty and hardship, were able to relocate to the Haldimand Tract and were recognized by the British Crown initially of Five Nations and subsequently Six Nations of the Iroquois peoples; exhibit 2, tab 25 and tab 16.
[7] From earliest times the Six Nations governed themselves by a council of 50 chiefs elected by Clan Mothers from each of the Nations. This continued within the Haldimand Tract from the latter part of the 18th century until 1924 when a proclamation of the Government of Canada created and recognized a system of government through an elected council; exhibit 2, tabs 42 and 25.
[8] Since 1924, the practical reality is that there have been two governments on the Six Nations of the Grand River Reserve. One government was created and recognized by the Parliament of Canada and is funded through the Department of Indian Affairs and Northern Development through a formalized process of annual budgets, audits and reports. Of the other government, the historical and hereditary one, much less is known within the record in this action, except importantly, the assertion of the Confederacy Council of Hereditary Chiefs that it is the hereditary chiefs that hold the treaties and the lands of the Haldimand Tract as made by their predecessors with the Crown, (as they assert) between sovereign nations.
[9] The defendants in this action are the self-same Six Nations of the Grand River Elected Council and the defendant Ms. VanEvery-Albert, an elected member of that Council. The plaintiff is a media consultant. She comes to this scenario through the Council of the Hereditary Chiefs, who acquired her services as a result of the Province of Ontario seeking formalized negotiations with the Confederacy as representing the occupiers (reclamation) and protesters in the DCE dispute for the purpose of keeping the peace and ending the standoff at the DCE lands.
Circumstances of the Plaintiff’s Retainer
[10] Negotiations Tables were established between the Province of Ontario and the Haudenosaunee Confederation Chiefs with one of those chiefs, Allen MacNaughton, the Chief Negotiator; exhibit 2, tabs 16; 4 and 44.
[11] Subsequently, the negotiation expanded to include the Government of Canada as a party with the expansion of the issues to the Haudenosaunee claim of property rights to the DCE lands. This then further expanded to a discussion to all treaty land claims within the Haldimand Tract; exhibit 2, tab 42, tabs 93 and 94.
[12] The plaintiff was asked by the Chiefs of the Six Nations Haudenosaunee Confederacy to become the media advisor for the Confederacy Council “during these trying times.” The plaintiff confirmed the appointment by her letter dated March 27, 2006, addressed to Leroy Hill, Secretary of the Six Nations Haudenosaunee Confederacy; exhibit 2, tab 1. I accept that the undertaking of the plaintiff was to be the voice of the Confederacy and the communications person with the other negotiating parties, the Province of Ontario and the Government of Canada, exhibit 2, tab 14. Her services included the drafting and issuing of releases to a long list of media entities to explain the case for the Six Nation land claims and the peaceful intention of the Six Nations people in the DCE dispute. In addition, the plaintiff was to advise the negotiators on issues of media relations, including the writing of speeches for the negotiators, principally for the chief negotiator, Allen McNaughton, exhibit 2, tab 1 at p. 2.
[13] The work of the plaintiff under her retainer commenced in the Spring of 2006 and continued in May 2009 at the time of the publication of the subject article by the defendants.
[14] Ms. Powless was to be paid if and when funds became available to the Confederacy. I find on the evidence that this method of providing services to the Confederacy on the basis of being paid, if and when funds were available to the Confederacy, was well recognized; and for those persons, who acknowledged the Confederacy Council Chiefs as their rightful governing body, fully acceptable to them. Although there is no evidence of the actual division of the 12,000 residents of the Six Nations Reserve as to allegiance to the disparate governances, there clearly is a significant division.
[15] I conclude that the plaintiff did perform extensive and important work, significantly in the 2006-2007 period. I further conclude that the involvement of the plaintiff in this galvanizing dispute was a matter of general public knowledge within the Six Nations Reserve and beyond.
The Defamation Issue
[16] The subject article is dated May 2009. It is found at exhibit 2, tab 3. I conclude that a fair and right thinking person reading the subject article would conclude that in June of 2008 Lynda Powless sought payment of over $200,000.00 from public monies on a bare demand without any indication of whom, if anyone, authorized whatever she may have done. Then, in the Spring of 2009, the defendant and her co-chair, Mr. Williams, called a meeting of the Haudenosaunee Six Nations (HSN) Finance Committee. At this meeting held on March 24, 2009, they were to consider payment of two invoices, one of which was for $216,000.00 from Lynda Powless. Ms. VanEvery-Albert was, she writes, at this meeting and puts herself in role of the prudent protector of public funds, challenging and implying by innuendo that she did not authorize payment given that she had no knowledge of any work done by Ms. Powless, that there was no contract and no deliverables (work product). Then, later in March 2009, Ms. VanEvery-Albert learns through rumour, i.e. outside of the HSN Finance Committee, that Ms. Powless was paid her invoice ($216,000.00). Her payment made though a process unauthorized and unknown to this defendant that involved approval by two unidentified members of the Confederacy Chief’s Council. I conclude that the words of the article convey the meaning that the plaintiff is a dishonest person who took advantage of a situation of crises at the DCE to obtain a large sum of money for which she did not have a contract and did not earn. I hold that she has been defamed.
Justification
[17] The first defence of the defendants is justification, the submission being that errors of fact in the article were confused through honest mistake and, in effect, the article was not about the plaintiff, but about the administrative processes of the Haudenosaunee Six Nations Finance Committee (HSN).
[18] I find that notwithstanding the title to the article, the article was all about two persons, the principal one in the article being the plaintiff. The facts as I find them are that the plaintiff was not paid $216,000.00. She was paid $96,000.00 in March 2009. She did have deliverables. And she performed her contract competently and fully, deserving of the monies paid to her. This included a legitimate expenditure of public funds in the course of the formal negotiation process. The process of approval and payment was within the HSN Finance Committee and GREAT1; exhibit 2, tab 90. The defendants have failed to justify the article.
Qualified Privilege
[19] There is little dispute between counsel that the article was written on an occasion of qualified privilege. The author, the defendant Ms. VanEvery-Albert, was a member of the HSN Finance Committee. She was appointed by the defendant Six Nations Elected Council and accordingly she and the council had the right, if not the obligation, to report on the activities of that committee to the persons to whom the article was directed, the members of the Six Nations of the Grand River Band of Indians who in turn had a legitimate interest in receiving a report from a Committee member. The occasion of qualified privilege is established for the publication of the subject article.
Legal Framework
[20] “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. However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice. See Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 149.” Hill v. Church of Scientology of Toronto, 1995 59 (S.C.C.); [1995] 2 S.C.R. 1130 para. 144
Accordingly, the onus of proof is for the plaintiff to prove that the article was written with malice as the dominant purpose.
Proof of Malice
[21] I find on all the evidence that the credibility of the defendant, Ms. VanEvery-Albert, is successfully challenged. She was reluctantly brought to the admission during her evidence that she did, (with the Committee) approve the plaintiff’s invoice for payment according to her earlier evidence on examination for discovery. I find she knew it was for $96,000.00. The defendant in her evidence in-chief indicated she saw her role as protecting proper process, transparency and documentation. When she was brought to the admission that she had approved payment to Ms. Powless, her response was that her responsibility was not as to public funds but only as a member of the Elected Council. Further she allowed that she did not know the process of the Committee that she co-chaired when it was suggested to her that funds for the negotiation tables came through the Government, who sent the funds to Greati, who in turn paid the expenses of the Confederacy negotiation team. She stated that she was unfamiliar with that process. Further, when the exchange of e-mails was put to her (exhibit 2, tabs 97 to 99) she states that she did not understand the e-mail to mean that the Chief’s Committee approved only the plaintiff’s first invoice of $96,000.00. I find that this cannot be so as the discussion at the Committee in her attendance was with regard to only one invoice of the plaintiff and that was clearly of $96,000.00. She then said that she thought her co-chair, Mr. Williams, might be lying to her because she, the defendant, did not know what the $96,000.00 meant. I note that in her evidence she made no attempt to ask Ms. Garlow, the chair of Greati; Mr. Hill, the secretary of the Chief’s Committee; or indeed anyone else. At one point in her cross-examination as to why Ms. VanEvery-Albert did not contact Ms. Powless before publishing her article she suggested that she had written two e-mails which were “bounced back”. When asked why she did not contact the Turtle Island News to reach Ms. Powless I found the defendant’s response very telling. She took a posture and demeanour of contempt and stated words to the effect that she has nothing to do with that journal. Overall I found the evidence of the defendant to be both self-contradicting and at variance to the evidence of other witnesses which I do accept as correct. I conclude her evidence is self-serving and unreliable.
[22] I find that upon the evidence of the other witnesses at trial and the documents filed, particularly as to the meetings of the HSN Finance Committee of October 7, 2008, exhibit 2, tab 96 and of October 15, 2008, exhibit 2, tab 4 and exhibit 3 that the defendant knew of the plaintiff’s retainer by the Chief’s Council; of the conditional nature of the payment arrangement with the Confederacy. She knew the original funds provided by the Province to the negotiating table did not include an item for communication services. She knew that the exercise was pure and simple the going forward with the HSN Finance Committee with regard to the plaintiff for the payment of her services. I find further that the defendant was aware that the plaintiff had invoiced $126,000.00. She knew that in order to facilitate some payment in the 2007-08 fiscal year, her invoice was divided into an initial $30,000.00 for services for advising and assisting Mr. MacNaughton in negotiations, with the balance under a separate invoice for $96,000.00 being the subject of the above payment efforts by the Committee. I find further that the defendant probably did receive the covering letter of exhibit 2, tab 13 and accordingly would not have any confusion that the document attached to that letter was simply an estimate provided for the purpose of establishing a further budget of the Confederacy Chiefs Negotiating Committee for the fiscal year 2008-09 (ending March 31, 2009).
[23] Counsel for the defendants submits (properly so) that the law is that a plaintiff does not establish malice by demonstrating that the defendant was subjectively reckless in what she erroneously believed to be true. A good discussion on this is found in the decision of the House of Lords in Horrocks v. Lowe, [1974] 1 All E.R. at pg. 666, paras. a-f. I do not quote as it is lengthy and counsel do not disagree on the law.
[24] I also accept the following statements of the law of defamation:
Evidence that prior to publication there were no grounds for the truth of the statement will be strong evidence of malice. A failure to provide the plaintiff with an opportunity to respond to an allegation before defaming the plaintiff may be evidence of malice. A failure to make proper inquiries or a failure to investigate may be evidence of malice. (Libel, Peter A. Downard, Second Edition Butterworths, 2010 at pg. 141)
[25] The Supreme Court has written that:
Malice is not limited to spite or ill will, although these are its most obvious instances. Malice includes any indirect motive or ulterior purpose, and will be established if the plaintiff can prove that the defendant was not acting honestly when he published the comment. This will depend on all the circumstances of the case. Where the defendant is the writer or commentator himself, proof that the comment is not the honest expression of his real opinion would be evidence of malice. If the defendant is not the writer or commentator himself, but a subsequent publisher, obviously this is an inappropriate test of malice. Other criteria will be relevant to determine whether he published the comment from spite or ill will, or from any other indirect and dishonest motive. WIC Radio Ltd. v. Simpson, 2008 SCC 40, 2008 S.C.C. 40; [2008] 2 S.C.R. 420 at para. 101.
[26] I conclude that the defendant published the subject article, knowing that what she wrote was false, she intended and did use a legitimate occasion of qualified privilege to discredit the character and hence effectiveness of the plaintiff within their community of the Six Nations. In short, the defendant Ms. VanEvery-Albert did not have an honest belief in what she wrote.
[27] On the liability of the statutory defendant, I quote:
Thus, both Manning and Scientology published the notice of motion. It is a well-established principle that all persons who are involved in the commission of a joint tort are jointly and severally liable for the damages caused by that tort. If one person writes a libel, another repeats it, and a third approves what is written, they all have made the defamatory libel. Both the person who originally utters the defamatory statement, and the individual who expresses agreement with it, are liable for the injury. It would thus be inappropriate and wrong in law to have a jury attempt to apportion liability either for general or for special damages between the joint tortfeasors Manning and Scientology. See Lawson v. Burns 1976 1499 (BC SC), [1976] 6 W.W.R. 362 (B.C.S.C.), at pp. 368‑69; Gatley on Libel and Slander (8th ed.), supra, at p. 600. However, this comment does not apply to aggravated damages, which are assessed on the basis of the particular malice of each joint tortfeasor. Hill v. Church of Scientology of Toronto (supra), at para. 176.
[28] I find the defence of qualified privilege is defeated. Accordingly there will be judgment for the plaintiff against each of the defendants, jointly and severally.
Damages
[29] The plaintiff had much to lose; her life’s work, including the editorship of the Turtle Island News. Her commentaries on the public life and governance of the Six Nations of the Grand River, and of aboriginal issues throughout Canada, make Ms. Powless a public figure of stature within her immediate and larger community. It is well known that once reputation is lost or even suspected, it becomes very difficult to erase what might be generally referred to as the public mind. Accordingly, the law recognizes actions for loss of reputation as serious and important. The sanction of damages provides a public statement of the injustice of the libel.
[30] I consider the mode of publication which put the defamation throughout the whole of the plaintiff’s community. In addition, there has been a refusal or absence of retraction, apology or even a correction for those statements that the defendant must acknowledge are errors of fact; this, together with the steadfast refusal of the defendant to do anything to lessen the sting of her defamation of the plaintiff through to the culmination of this trial. I take for consideration in assessment of damages, guidance and direction from Hill v. Church of Scientology of Toronto, (supra), particularly para. 182, quoting with approval Gatley on Libel and Slander (8th ed. 1981), at para. 1451 of that text:
- The factors which should be taken into account in assessing general damages are clearly and concisely set out in Gatley on Libel and Slander (8th ed.), supra, at pp. 592‑93, in these words: 1451. Province of the jury. In an action of libel "the assessment of damages does not depend on any legal rule." The amount of damages is "peculiarly the province of the jury," who in assessing them will naturally be governed by all the circumstances of the particular case. They are entitled to take into their consideration the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and extent of publication, 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. They may take into consideration the conduct of the defendant before action, after action, and in court at the trial of the action," and also, it is submitted, the conduct of his counsel, who cannot shelter his client by taking responsibility for the conduct of the case. They should allow "for the sad truth that no apology, retraction or withdrawal can ever be guaranteed completely to undo the harm it has done or the hurt it has caused." They should also take into account the evidence led in aggravation or mitigation of the damages.
[31] I award the plaintiff as against the defendants, jointly and severally, general damages in the sum of $60,000.00. See Hill (supra) at para 176.
[32] In addition (subject to the representations of the defendants on the issue of costs) I would add as a damage award the payment of the plaintiff’s solicitor and her client costs of this action.
[33] Counsel may exchange and submit their materials on the issue of costs within 4 weeks hereof.
Crane J.
Released: February 5, 2013
COURT FILE NO.: CV-09-539
DATE: 2013-02-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LYNDA POWLESS
PLAINTIFF
- and –
CLAUDINE VANEVERY-ALBERT AND SIX NATIONS OF THE GRAND RIVER BAND OF INDIANS
Defendants
REASONS FOR JUDGMENT
CRANE J.
DSC//dm
Released: February 5, 2013