COURT FILE NO.: CV-08-0253
DATE: 2014-06-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mary D. Bird
Plaintiff
– and –
Her Majesty the Queen in Right of Ontario
and Randy Tippin
Defendants
Francis J. Thatcher, for the Plaintiff
Lise Favreau and Judith Parker, for the Defendants
HEARD: April 7, 8 and 9, 2014 in Thunder Bay, Ontario
REASONS FOR JUDGMENT
Cornell J.:
Introduction
[1] The plaintiff is a lawyer who was retained to represent Jarvis Sameluk in connection with offences under the Fisheries Act and two charges of breach of probation contrary to the Provincial Offences Act. These charges were laid by the defendant, Randy Tippin, in his capacity as a conservation officer.
[2] It is alleged that Randy Tippin made certain defamatory comments about the plaintiff at the time that he left a message on Jarvis Sameluk’s telephone answering machine. It is claimed that Her Majesty the Queen in Right of Ontario is vicariously liable for the actions of Randy Tippin. For the reasons that follow, I find that the claim has been made out.
Background
[3] Jarvis Sameluk had worked as a commercial fisherman for 67 years. In order to engage in this activity, he held a commercial fishing licence that had been issued by the Ministry of Natural Resources (“MNR”). Jarvis Sameluk was required to provide Daily Catch Reports (“DCRs”) to the MNR with respect to the quantity of fish that had been taken.
[4] After reviewing the DCRs and otherwise conducting an investigation, Randy Tippin charged Jarvis Sameluk with three offences under s. 36(2) of the Ontario Fishery Regulations, 1989 that had been promulgated under the federal Fisheries Act. The charges alleged overfishing. Jarvis Sameluk had previously been convicted of overfishing in 2005 with the result that a period of probation was ordered.
[5] Jarvis Sameluk retained the plaintiff to represent him in connection with these charges. Ms. Bird’s practice focuses on criminal and quasi-criminal defence work as well as aboriginal law. Jarvis Sameluk faced two charges of breach of probation alleged to have been committed on November 18 and 20, 2005. On March 21, 2006, Jarvis Sameluk received a summons in connection with two additional charges of breach of probation alleged to have occurred in October and November, 2005.
[6] A pre-trial conference was conducted on March 21, 2006. Ms. Bird appeared for Jarvis Sameluk. Alan Ryan appeared for the Crown. A tentative plea bargain was negotiated at that time. In accordance with a request from Ms. Bird, Mr. Ryan wrote to Ms. Bird on March 22, 2006, to outline the terms of the plea bargain. This letter indicates that acceptance of the offer must be made in writing on or before March 29, 2006, at which time the offer would be withdrawn.
[7] On or about March 30, 2006, Randy Tippin spoke with Alan Ryan who advised him that no response to the offer had been received. Mr. Ryan indicated that this was somewhat unusual in that in his experience, some form of response was forthcoming even if it was simply “pound salt.” During the course of his telephone conversation with Randy Tippin, Mr. Ryan advised that the first copy of the letter sent to Mary Bird’s office had been lost and in accordance with a request received, a second copy had been provided.
[8] Dan Sameluk is Jarvis Sameluk’s son. He was also a commercial fisherman pursuant to a commercial fishing licence issued by the MNR.
[9] Dan Sameluk was also facing Fisheries Act charges that had been laid by Randy Tippin.
[10] It was not uncommon for Dan Sameluk to call Randy Tippin to seek advice or direction so as not to run afoul of the terms of his licence. Dan Sameluk placed such a call on March 31, 2006. During the course of that conversation, Randy Tippin advised Dan Sameluk that there had been no response to the plea bargain that had been made. As the parties were near one another, they agreed to meet at a nearby gas station. At that time, Dan Sameluk indicated that he had not been contacted by his lawyer and he was not aware of the offer that had been made. Randy Tippin advised him to get in touch with his lawyer.
[11] In view of the fact that Dan Sameluk was not aware of the offer, Randy Tippin concluded that it would be reasonable to assume that Jarvis Sameluk was unaware of it as well, despite the fact that Jarvis and Dan were represented by different lawyers. He decided to call Jarvis Sameluk and returned to his office for this purpose.
[12] Randy Tippin proceeded to place a call to the business telephone line of Sameluk Fishing. When he placed the call, it was answered by a telephone answering machine. Randy Tippin left the following message:
Um, I just wanted to inquire if you have heard from your lawyer. And now, I guess I personally don’t really need the answer to that, but um, a proposition was made during the pretrial from your lawyer saying basically what they wanted. Our lawyers agreed. And then your lawyer wanted that in writing. It was presented in writing for some sort of a plea bargain arrangement and I guess your lawyers lost the sheet and whatever other problems happened. Anyway. I basically feel your lawyer is pretty much incompetent which is why I’m making this call. I just wanted to make sure that you were aware um, that an offer was made from the M.N.R. to, to plea out a lot of this stuff. If you hadn’t heard from your lawyer, please get in touch with them. The offer, I think, was only valid up until today or even yesterday um, and then they were saying that the Crown would go for full penalty if, if you know, we didn’t go the route of the plea. So contact your lawyer. Find out what’s going on from them, if you haven’t heard from them already. We didn’t hear one way or the other whether they accepted the plea or denied the plea outright or if they like the plea but wanted to argue the um, the same things like that. Really, this is a matter between you and your lawyer. I just feel that things have been mishandled grossly up until this point. So if you want to contact them or if you have any questions of me, you can all me at the office. You have my number, 475-1375.
Thank you. Oh, time now is 2:20 on Friday afternoon. Ah, I’ll be contacting [your son] Dan [Sameluk] and, and discussing the same thing with him. There’s no concerns about you two discussing those matters in terms of your probation order because this had to do with an offence before all of this happened. So if you guys wanna talk about things and get that sorted out, that’s fine too. I’ll give Dan that same direction. Thank you. Bye.
[13] After playing the message, Jarvis Sameluk testified that he was “shocked” to receive such a message. He went on to testify it was like “somebody dropped a bomb, it really floored me, I was completely upset.” Jarvis Sameluk understood the message to mean that Ms. Bird was not capable of handling his case and that she was incompetent as she had lost some papers and had not responded to the offer in a timely fashion. He was concerned that Ms. Bird “knew something that I did not.”
[14] The fact of the matter is that Ms. Bird had met at some length with Jarvis Sameluk on March 27, 2006, at which time Jarvis Sameluk instructed Ms. Bird not to accept the offer.
[15] Jarvis Sameluk proceeded to call Ms. Bird. They met a short time later and discussed the situation. Ms. Bird advised Jarvis Sameluk that the letter had not been lost, but that it was not easily accessible as she was in the midst of moving her office. Her request for another copy of the letter was one of convenience rather than incompetence.
[16] Ms. Bird was able to reassure Jarvis Sameluk that things had been properly handled and he continued with her representation through the trial and the resulting appeal.
[17] It is against this background that the case is to be considered.
The Issues
[18] It was acknowledged on behalf of the defendants that the three-part test to establish defamation had been made out, namely, the impugned words were defamatory, the words in fact referred to the plaintiff personally and the words were published.
[19] There was considerable discussion about what parts of the message constituted defamatory comments. It was acknowledged that the statement “I basically feel your lawyer is pretty much incompetent” was defamatory. The defendants did not agree that the tests had been met with respect to the phrase “I just feel that things have been mishandled grossly up until this point.”
[20] The plaintiff eventually conceded that nothing much would turn on whether or not this second comment was found to be defamatory given the concession that had been made by the defendants with respect to the incompetent lawyer statement. Given this background, it is enough that the defendants have conceded that a portion of the telephone message was defamatory.
[21] As discussed and agreed with counsel for the parties, the remaining issues to be considered are:
Do the defendants have the ability to avail themselves of the defence of qualified privilege?
If not, what is the appropriate measure of damages?
The Law
[22] A concise summary of the doctrine of qualified privilege can be found in the second edition of Libel by Peter A. Downward, at page 125:
The fact situations to which common law qualified privilege applies are referred to as occasions of qualified privilege: see Minter v. Priest, [1930] A.C. 558 at 571-572 (H.L. per Viscount Dunedin). It has traditionally been said that qualified privilege attaches to the occasion upon which the communication is made, and not the communication itself, or the person publishing it, because of the importance of a particular factual context as the justification for the privilege.
If a defamatory statement is published in circumstances that do not constitute an occasion of qualified privilege, the common law presumes malice. The intent or motive of the defendant is irrelevant to liability. If the circumstances of a particular case are sufficient to constitute an occasion of qualified privilege, however, the presumption of malice is rebutted. The defendant is then presumed to have acted in good faith and with an honest belief in the truth of the communication.
[23] In order to be able to make use of the doctrine, the publisher must have some interest or duty to publish the information and the person to whom it is published must have a corresponding interest or duty to receive it: see Cusson v. Quan, 2007 ONCA 771, [2007] O.J. No. 4383, 87 O.R. (3rd) 241 (Ont. C.A.) at para. 38, and Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] S.C.J. No. 64, [1995] 2 S.C.R. 1130 at para. 143. The interest or duty can be legal, social, moral or personal.
[24] The test for qualified privilege is an objective one and accordingly Tippin’s subjective belief as to the interest or duty is irrelevant to the question of whether the occasion was privileged.
[25] It has been held that the categories of privileged occasions established in the case law are not exhaustive: see Cusson at p. 254.
[26] All of the circumstances are to be taken into account in determining whether a defence of qualified privilege exists. These factors include the relationship between the parties, the content of the particular statement and the nature of the interest put forward to justify the publication.
[27] The onus lies upon the defendant to establish that an occasion of publication was privileged: see Pleau v. Simpsons-Sears Ltd., 1977 CanLII 1325 (ON CA), [1977] O.J. No. 2181, 15 O.R. (2d) 436 (Ont. C.A.) at p. 444.
[28] Despite the fact that categories or the existence of qualified privilege are not closed, there are certain categories that have been recognized. These include family communications, communications regarding employment, union communications, management/employee communications, business and credit reports, business to business communications, shareholder and corporate communications, communications about litigation, communications about insolvency proceedings, complaints to authorities, medical communications, statements to public bodies and responses to criticism.
[29] If a defence of privileged occasion is established by a defendant, it is open to a plaintiff to defeat such defence by proving that malice was the dominant motive or that the scope of the privilege was exceeded “if the information communicated was not reasonably appropriate or necessary in light of the legitimate purposes of the occasion”: see Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] S.C.J. No. 69, [1995] 3 S.C.R. 3 at para. 80. Where the statement is not appropriate for the privileged occasion, it cannot be said that the person receiving such comment has an interest in receiving it and accordingly the foundation of the privilege is lost: see RTC Engineering Consultants Ltd. v. Ontario (Ministry of the Solicitor General and Correctional Services), 2002 CanLII 14179 (ON CA), [2002] O.J. No. 1001, 58 O.R. (3d) 762 (Ont. CA) at p. 732-33.
Analysis
Randy Tippin’s Background
[30] Mr. Tippin received a degree in biology from the University of Western Ontario in 1996. He subsequently took a one-year diploma program at Sir Sanford Fleming College in Lindsay followed by an eight-month program in natural resource law enforcement. This is a program designed to provide background and training for individuals who may wish to work as park wardens or conservation officers.
[31] These courses were taken as Mr. Tippin had decided that he wanted to have a career with the MNR. To this end, he obtained a seasonal position as a park warden at Sleeping Giant Provincial Park in 2003. He subsequently worked on a contract with MNR as a black bear technician. During the course of a maternity leave, he obtained a position as an enforcement clerk.
[32] In order to enhance his employment prospects, he worked in excess of 1,400 hours as an MNR volunteer. These efforts commenced in the fall of 2003 in Thunder Bay. Much of this time was spent with Mark Hailey, a senior conservation officer. As a volunteer, Mr. Tippin would accompany conservation officers doing routine field work and while conducting investigations. He also spent a considerable amount of time in court observing various proceedings.
[33] While taking a condensed enforcement program in January of 2005, he was offered a position as a conservation officer. He now holds the position of Enforcement Officer for the Upper Great Lakes.
[34] He was aware of the prior charges that had resulted in convictions against Jarvis Sameluk in February of 2004 and the probation order that was imposed as part of the sentence. In fact, Randy Tippin had been present from time to time during the course of the court proceedings involving the previous charges.
[35] Mr. Tippin’s stated purpose in making the telephone call to Jarvis Sameluk was his concern about the expiration of the plea offer. Given the deadline that had been imposed in Mr. Ryan’s letter, he felt that it was urgent that the situation be brought to the attention of both Dan Sameluk and Jarvis Sameluk so that they could consider the offer with their lawyer. Mr. Tippin indicated that such a call was not normal practice and that in fact, this was the only occasion when he has made such a call.
The Occasion
[36] In support of the position that the occasion was one upon which qualified privilege would apply, counsel for the defendants pointed to a number of factors including:
Mr. Tippin had an ongoing and regular relationship with fishing licence holders like Mr. Sameluk. It was not unusual for them to seek advice and information from Mr. Tippin as an MNR conservation officer.
At the time he made the call to Jarvis Sameluk, he had just spoken to Jarvis Sameluk’s son, Dan Sameluk. Dan Sameluk told him that he did not know about the plea bargain offer that was made.
Mr. Tippin had taken from his recent conversation with Mr. Ryan that there had been no reply to the offer and that Mr. Ryan was surprised by this.
Mr. Tippin’s belief at the time was that Jarvis Sameluk’s lawyer had called asking for a copy of the offer, as the original copy had been lost or misplaced. The fact that Ms. Bird made this call asking for another copy of the offer is not disputed by Ms. Bird.
Mr. Tippin also believed that the offer had an expiry date.
Mr. Tippin believed that it was urgent that Mr. Jarvis Sameluk talk to his lawyer to avoid missing a plea bargain that benefited Mr. Jarvis Sameluk, as it contained all of the terms Jarvis Sameluk’s lawyer had asked the Crown for at pre-trial.
It would have been unfair if Jarvis Sameluk had not had an opportunity to take the offer.
Mr. Tippin believed that calling Jarvis Sameluk to make sure he knew about the offer was the right thing to do, since he had told Dan Sameluk about it.
[37] In these circumstances, it was suggested that Mr. Tippin had a moral duty to place the telephone call in question.
[38] It was acknowledged that no similar case of a claim for qualified privilege in these circumstances appears to exist. It clearly does not fit into one of the existing recognized categories, but as previously pointed out, such categories are not exhaustive. It therefore falls to me to decide if, considering all of the factors that exist in this case, it is appropriate to find that the occasion in this case was one of qualified privilege.
[39] By virtue of being a conservation officer, Mr. Tippin was a peace officer. In such capacity, he had the ability to wear a uniform and a side arm. He testified that it was his decision to conduct the investigation and to lay the charges. It was also his responsibility to gather the evidence, prepare the Crown brief and to testify if the matter proceeded to trial.
[40] Although not the investigating officer, Mr. Tippin was present in court from time to time when the charges that resulted in a plea in December of 2004 were dealt with. He was the one who laid the charges of overfishing and the various breaches of probation that gave rise to the telephone call that forms the basis for the defamation claim made in these proceedings. There can be no doubt that Jarvis Sameluk perceived Mr. Tippin to be a person in authority. I have grave concerns about a peace officer in these circumstances having a telephone call or a discussion of this nature with an accused person in these circumstances.
[41] In order for a guilty plea to be accepted, the judge must be satisfied that the guilty plea is being entered voluntarily. This is the reason why it is often the practice that a comprehensive plea inquiry be conducted before a guilty plea is accepted. A call of this nature has the potential to seriously undermine the voluntariness of a guilty plea.
[42] Quite apart from the defamatory comment, the call indicates that if the offer is not accepted, “the Crown would go for full penalty...” which in this case could include imprisonment.
[43] The occasion and content of the call had the potential, if not the likelihood, to undermine the solicitor-client relationship, if not to destroy it. Lest there be any doubt about that, it is only necessary to consider the effect that the telephone message had upon Jarvis Sameluk as clear evidence of this danger. In this case, the plaintiff was able to rehabilitate the trust that is necessary in a solicitor-client relationship, but that may not always be the case.
[44] The Rules of Professional Conduct for lawyers provide that where a party is represented, a lawyer shall only deal with the other lawyer and not the other party. While it is true that there are no rules of professional conduct for peace officers that speak to this issue, in my opinion when dealing with a plea bargain that has been negotiated by counsel, the same principle should apply.
[45] Given Mr. Tippin’s position as a peace officer, his ability to investigate and to lay charges, his involvement with previous charges involving Jarvis Sameluk, the potential threat to the voluntariness of a guilty plea, the threat that if the offer was rejected, the full penalty would be sought as well as the danger of the destruction of the solicitor-client relationship, can it be said that Randy Tippin had a moral duty to place the impugned telephone call? Given the dangers and concerns that have been outlined, I think not.
[46] In view of this finding, I have reached the conclusion that on the facts of this case, the defendants have failed to satisfy the onus that lies upon them to establish that this was an occasion of qualified privilege.
[47] This finding is a question of law and accordingly, it may well be the subject of appellate review. In view of this, I will proceed to consider whether qualified privilege, if it does apply in this case, is defeated by the existence of malice or by exceeding the scope of the privilege.
Malice
[48] It is well established that if malice was the dominant reason for the publication, a defence of qualified privilege will be lost.
[49] In defamation claims, it is common to allege that the defamation was published falsely and maliciously. It has been held that such a bald assertion is not sufficient to plead malice for the purpose of defeating qualified privilege: see Botiuk v. Toronto Free Press Publications Ltd.
[50] Typically, a plea of malice would be set out in a reply pleading in order to defeat a defence of qualified privilege. A general plea of malice is not sufficient; rather, the material facts upon which a party relies upon in support of the plea of malice must be set out.
[51] In this particular case, there is no allegation of malice in either the statement of claim or the reply. In view of this, it is not open to the plaintiff to rely upon malice in this case to defeat a claim for qualified privilege.
Scope of the Privilege
[52] Counsel for the defendants stated that the occasion in question in this case was Mr. Tippin’s desire to make sure that Jarvis Sameluk had an opportunity to consider the plea bargain that had been put forward. This is open to serious question in light of the content of the impugned statement itself: “anyway, I basically feel your lawyer is pretty much incompetent which is why I’m making this call.” The stated purpose of the call is Mr. Tippin’s opinion about the competence or lack thereof of the plaintiff.
[53] Even if I accept the position that is put forward on behalf of the defendants, how can it be said that the impugned comment is germane and reasonable to the occasion of having Jarvis Sameluk consider the plea bargain?
[54] In DDI Diamonds Direct Inc. v. Raney, [2006] B.C.J. No. 1423 (B.C.S.C.) at para. 43, the court states:
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 the 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 letter contained intemperate language – from my reading, it surely did – but whether that language was directed to the subject matter that gave rise to the privilege in the first place.
[55] According to the defendants, the matter in controversy was Mr. Tippin’s stated concern that Jarvis Sameluk have an opportunity to consider the plea bargain. That being so, it is clear that the gratuitous comment about Ms. Bird’s competence was not “directed to the subject matter that gave rise to the privilege in the first place.”
[56] Mr. Tippin stated that his use of the word “incompetent” was “regrettable and a poor choice.” He went on to acknowledge that he did not believe such comments to be true.
[57] In view of this, I find that even if this is a situation where the defence of qualified privilege has been made out, it is defeated because the comments made in the message left on Jarvis Sameluk’s telephone answering machine exceeded the scope of the privilege.
Damages
[58] The plaintiff indicated that no claim for special damages was being presented.
[59] The plaintiff suggested that an appropriate award for general damages at large would be $50,000 together with $100,000 to $250,000 for punitive damages. The plaintiff acknowledged that no claim for aggravated damages could be maintained due to the failure to plead malice.
[60] The defendants indicate that if liability is found, this is an appropriate case for an award of nominal damages.
General Principles
[61] As set out in Hill v. Church of Scientology of Toronto, general damages for loss of reputation and hurt feelings are presumed to exist merely from the fact of publication. In determining the quantum of such damages, various factors are to be taken into consideration including the nature and conduct of the plaintiff and the defendant, consideration of any apologies which might have been made, the size of circulation, manner and prominence of publication as well as the content and context of the remarks.
Consideration of the Factors
Extent of Publication
[62] The publication in this case consisted of the message that was left on Jarvis Sameluk’s telephone answering machine. Although considerable time was spent on the fact that this was a business telephone line that was accessible by various people, the fact of the matter is that only Jarvis Sameluk heard the message. He then removed the tape and took it to the meeting that he subsequently had with the plaintiff. Apart from these legal proceedings, this is the extent of the publication. In view of this, it is apparent that the extent of the publication was extremely limited.
Plaintiff’s Occupation
[63] The plaintiff is a lawyer. A lawyer’s integrity is the cornerstone upon which their career is founded. Although the comment was not directly aimed at the plaintiff’s honesty and integrity, it was conceded by counsel for the defendants that competence is an important aspect of reputation.
[64] The evidence in this case indicates that given the very limited publication, the reputation of the plaintiff has not been materially harmed. The plaintiff testified that her practice has continued to be busy, a fact that would account for the absence of any claim for special damages.
Apology
[65] Mr. Tippin testified at the time of Jarvis Sameluk’s trial on March 11, 2008. At that time, Mr. Tippin attempted to provide an apology as follows:
A. But the conduct that I do find regrettable and I wish I had not said, was my personal about you, Ms. Bird, and I do …
Q. I don’t care.
A. … apologize for that. That was regrettable.
[66] That is the one and only effort at an apology that was ever made.
[67] The defendants say that the requirements for an apology have been met. The difficulty with that position lies in the fact that in the statement of defence that was delivered on November 17, 2008, both defendants plead that the content of the message left by Officer Tippin was substantially true and that a defence of justification is available. These defences were maintained until the matter first came up for trial in October, 2013.
[68] A true apology must be clear and unequivocal. It must state that the defendant published incorrect information: see Wiley v. Toronto Star Newspapers Ltd. (1988), 1988 CanLII 4548 (ON SC), 65 O.R. (2d) 31, 51 D.L.R. (4th) 439 at p. 445. A true apology will indicate that incorrect statements regarding the plaintiff were made or that such statements were false. It should go on to provide that the defendant retracts the statements without reservation and sincerely apologizes to the plaintiff. A statement that the defendant regrets an error, without more, is not an apology (Wiley).
[69] In these circumstances, it cannot be said that Mr. Tippin has provided an apology to the plaintiff.
General Damages
[70] The challenge that exists in determining the proper damages in a case of this nature are set out in Fielding v. Variety Inc., [1967] 2 E.R. 497 (C.A.) at p. 500:
Such experience as I have in this court with the subject of libel has satisfied me that when the damages are, as they say, at large, they do present a most baffling problem… [The] damages bear no relation to any calculation that you can make.
[71] Cases that involve remarks about a lawyer where such remarks had been widely circulated were drawn to my attention. These consisted of Ungaro v. Toronto Star Newspapers Ltd., [1997] O.J. No. 201 (S.C.J.) where $25,000 was awarded, Vigna v. Levant, 2010 ONSC 6308, [2010] O.J. No. 5250 (S.C.J.) where $25,000 was awarded, and Daboll v. DeMarco, [2011] ONSC 1, where an award of $50,000 was made, including an amount for aggravated damages.
[72] After taking all of the various factors into account, I am of the opinion that an award in an amount of $10,000 is appropriate.
Aggravated Damages
[73] In the absence of any allegations of malice made by the plaintiff, no such award need be considered.
Punitive Damages
[74] The defendants’ conduct was not so malicious, oppressive or high-handed that it offends the court’s sense of decency. In view of this, this is not a proper case for an award of punitive damages.
Costs
[75] I would encourage the parties to attempt to settle the issue of costs. If this is not possible, either party is at liberty to present a claim for costs within 21 days of the release of this decision. The claim for costs shall not exceed three pages, exclusive of the bill of costs itself. Any responding material shall be filed within 14 days and shall be subject to the same limitations with respect to content.
The Honourable Mr. Justice R. Dan Cornell
Released: June 26, 2014
COURT FILE NO.: CV-08-0253
DATE: 2014-06-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mary D. Bird
Plaintiff
– and –
Her Majesty the Queen in Right of Ontario
And Randy Tippin
Defendants
REASONS FOR JUDGMENT
Cornell J.
Released: June 26, 2014