ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-08-363445
DATE: 20141230
BETWEEN:
SEVILLYA SANDU
Plaintiff
– and –
FAIRMONT HOTELS INC. and DARREN SKOMOROWSKY
Defendants
Andrew MacDonald, for the Plaintiff
Lorne Honickman and David Elmaleh, for the Defendants
HEARD: January 27, 28, 29, 30, 31 and
March 18, 19, 2014
STEWART J.
Nature of the Action
[1] The Plaintiff Sevillya Sandu (“Sevillya”) seeks damages for defamation as against the Defendant Fairmont Hotels Inc. (“Fairmont”) and its employee, Darren Skomorowsky (“Skomorowsky”).
[2] Fairmont and Skomorowsky deny that Sevillya was defamed. Alternatively, they argue that if any communication was made by them which amounts to defamation of her, such communication was made in circumstances which are subject to qualified privilege.
Facts
[3] Sevillya is married to Stefan Sandu (“Stefan”). At the time these events occurred, Stefan was employed by Fairmont as a senior chef at the Royal York Hotel.
[4] The sequence of events giving rise to the alleged defamation as demonstrated by the evidence at trial, when examined objectively, is actually not in any serious or major dispute. What is in contention are certain ingredients of and the general tone of an encounter at the Royal York Hotel between Sevillya, and Stefan and Skomorowsky.
[5] On the evening of December 20, 2007, Fairmont hosted a holiday party for its employees at the Royal York Hotel.
[6] On that same evening, Skomorowsky was on duty as Night Manager at the Royal York with responsibility for supervising and reporting on all activities related to the functioning of the hotel’s front desk.
[7] Sevillya and Stefan planned to attend the party with their daughter, Amber-Rose. Stefan had booked a room at the hotel at the substantially discounted rate offered to employees attending the party. A non-smoking room had been requested by him.
[8] The availability of discounted rooms to employees on that evening was subject to very strict rules. All rooms were to be pre-assigned and no room changes would be offered. Bed type and smoking or non-smoking requirements were to be the subjects of request only with no guarantee that such requests would be fulfilled.
[9] On the afternoon of December 20, Stefan received two keys for the room he had reserved. He later met Sevillya and Amber-Rose in the hotel lobby and escorted them to their room where they dropped off their luggage.
[10] Although the room they were given was a room on the second floor of the hotel designated as a non-smoking floor, when Sevillya first stepped in the room she noticed a slight smell of smoke. Sevillya has asthma and is particularly sensitive to smoke. She opened a window to get rid of the smell. Then she and Amber-Rose headed to the party, leaving the window open.
[11] Because Stefan was working that evening, he did not join his family at the party until midnight. When he did join them, he drank a couple of bottles of beer.
[12] Sevillya does not drink alcohol. She stated that she and Amber-Rose only drank water and Diet Cokes that entire evening. There is no direct evidence to the contrary. I accept that Sevillya and Amber-Rose had not been consuming any alcohol that evening and were in no way under the influence of alcohol or otherwise intoxicated.
[13] Sevillya and Amber Rose returned to their hotel room around 12:30 a.m. Stefan was not with them as he had stopped along the way to speak with some fellow employees. When Sevillya and Amber-Rose entered the room, the smell of cigarette smoke in the room was noticeable to them even though the window had been left open.
[14] When Stefan returned to the room, the Sandus discussed what to do about the smoke odour problem. They decided to leave the room as the smell was intolerable to Sevillya, and took their luggage with them.
[15] The Sandus arrived at the front desk with their luggage just before 1:00 a.m. While Amber-Rose sat nearby, Sevillya and Stefan spoke with Josh Herbert, the desk clerk on duty. They reported the issue of the smoke odour in the room and said they could not stay in that room as the smell of smoke was intolerable.
[16] The Sandus asked for a refund of the cost of the room. Because Stefan was an employee attending the holiday party, Hebert told them that they could not be offered a refund but offered them a change of rooms. The Sandus then asked to speak to the Night Manager, Skoromowsky.
[17] Sevillya and Stefan repeated their complaint about the smell of cigarette smoke in their room to Skomorowsky. The Sandus argued that, since the room had been represented as being non-smoking, they should be given a refund of their money. If that were not possible, they wanted to be moved to a non-smoking room on a floor where Sevillya’s asthma could be safely accommodated. Stefan was prepared to pay extra for an upgrade, if that were necessary.
[18] Skomorowsky told them that he could offer the Sandus another non-smoking room but under no circumstances could he refund the room charge. When a room on an alternate non-smoking floor was suggested, Sevillya demanded to be assured that the room was acceptable to her and completely smoke-free by inspecting it with Skomorowsky present.
[19] By this time, other hotel guests were waiting to be attended to. Skomorowsky and Herbert could not leave the front desk.
[20] The Sandus swear that Skomorowsky then ordered them to leave and pointed to the front entrance. Skoromowsky denies this, but does admit that he indicated that he could not leave the front desk to go to inspect a room with Sevillya to ensure that it was acceptable to her.
[21] Stefan advised Skomorowsky that he would take the issue up with the hotel’s General Manager with whom he was acquainted from his employment there. He asked for Skomorowsky’s full name as well as the name of the desk clerk.
[22] The Sandus then left the hotel and went home.
[23] Skomorowsky made the following entry in the hotel’s Midnight Log:
- Mr. Stefan Sandu – Rm. 2-259 GRYHX7
The guest came to the desk upset, claiming that they had been placed into a smoking room for accommodation. The guest was informed that the second floor is non-smoking and that they had been booked into a non-smoking room. The agent apologized and offered an immediate room change to accommodate. They then stated that this was unacceptable and that they should not be treated in this manner. They were then set up with a new room. At this point they stated that they wanted to check out and should not be charged anything for the outrage. The agent apologized and offered have the manager speak with them.
We apologized if other guests were deciding to smoke on non-smoking floors and offered a room change. The guest refused stating that they were going to check out and did not want to be charged. We apologized but at the room had been utilized since 3:00pm yesterday afternoon. The guests’ accompany began screaming in front of a line up of guests that we had placed them deliberately in a smoking area. Again we offered them a room change to more suitable accommodation. This did not seem to suffice as the guests continued to yell. She demanded that the manager accompany her up to the floor. They were informed that it was currently very busy, that we believed them, and that we could accommodate a room change. They were very intoxicated and quite belligerent. They continued pointedly stating we had stuck them in a smoking room and there should be no charge. At this point the guests were informed that if this discussion continued any further that they would be asked to leave the hotel as they were disturbing the other guests checking in.
They began to demand to speak to the General Manager with whom they had just been sitting upstairs. I stated that Ms. McCrory had left the building for the evening, and stated that I was speaking for her. The guests began to yell louder and demanded the Night Managers’ card and the name of the desk agent. They stated that this treatment was unacceptable and that they would be following up with the GM tomorrow. They checked out and returned to the desk once again to demand the agents name and another card from the Night Manager.
*** The guest was accompanied by his wife and their daughter, a minor. We conducted a lock audit to ensure that this wasn’t simply a case of the guest going up to the room after the function and finding it smokey. The room was accessed at 5:23pm, 6:15pm, 11:54pm and 12:25pm. The guest came down to speak with the NM at 00:52am. (Please see Lock audit report below).
[24] The Midnight Log is a document required by Fairmont to be completed each evening by the Night Manager. It is designed to be a record of any events or occurrences of note of which hotel management are to be informed. The Midnight Log is circulated to a list of management personnel within the hotel as a matter of routine each morning so that they might be kept apprised of any incidents occurring in the hotel.
[25] The Midnight Log which included a report of this incident as noted above was circulated on December 21, 2007 to the usual recipients and to the hotel’s human resources personnel because a staff member had been involved.
[26] Sevillya felt that her Christmas had been ruined and what was to be ahappy event for her family ended in shambles. On December 21, 2007, Sevillya pursued her complaint about how she felt that she and her family had been treated at the front desk with senior management. She met with Gregory Day, Assistant General Manager of the Royal York Hotel. She was dissatisfied with Day’s response.
[27] Soon after meeting with him, Sevillya wrote a letter to Day which included the following statements:
Instead of listening to our story and trying to help, you behaved in a most outrageous and terrible manner. What is even more upsetting and difficult to understand is that you did not want to listen to us because you have already made up your mind about the situation. We did not come to advocate for my husband Stefan Sandu who is the employee of the Fairmont Royal York Hotel. We had come to talk to you and discuss in a reasonable manner about the fact that we were insulted and humiliated by the hotel employees because we had complained about the room given on December 21, 2007. There was heavy smoke on the second floor and in the room that made us sick, and this was the reason we decided to leave. Instead of being accommodated and treated with respect, the night manager became angry that we had complained, and threw us out of the hotel. Today we had hoped that you were able to resolve this matter, but found you in a most disagreeable mood and finally in a violent way you threw us out of your office. We were shocked and in disbelief that a person in your position could act with such an aggressive behavior.
Your behavior was unacceptable and most unprofessional and unbecoming of a Manager of such a reputable hotel such as Fairmont Royal York. Your action spoke volume and the kind of treatment and disrespect you have for the guests, employees and family of the employee. It is very, very, very sad that you have decided to display such an abhorrent behavior
[28] Sevillya followed up her letter to Day with further correspondence dated December 5, 2007 directed to Heather McCrory, General Manager of the Royal York Hotel. In her letter, she accused Skomorowsky of having carried out “a senseless, imprudent and unwise set of actions” and stated that he had acted and spoken improperly to her and Stefan. She also alleged that Day had “thrown” her and her daughter out of his office “in a most violent and aggressive manner”.
[29] On December 23, 2007, Stefan was told he must meet with his supervisors David Garcelon and J.C. Dupoire to discuss the incident. He attended this meeting with a representative of his union. Garcelon had a copy of the Midnight Log entry with him and during the meeting he referred to the incident of the previous evening.
[30] Stefan was disciplined for violation of hotel policy, harassment of a colleague and insubordination. The penalty imposed was a six-month suspension of his entitlement to use the “Destinations Program”, a system of company-wide discounts for employees.
[31] Stefan commenced a grievance under his union’s collective agreement to challenge the discipline and penalty imposed. That grievance was settled to the satisfaction of management and his Union. The discipline was expunged and the penalty was removed.
[32] I note that Stefan is not a Plaintiff in this civil action and seeks no remedy from either Defendant. He remains a valued Fairmont employee.
Issues:
A. Was Sevillya defamed?
B. Was the entry in the Midnight Log justified?
C. Was the circulation of the Midnight Log entry and any reference to its contents during a discipline meeting with Stefan made an occasion of qualified privilege?
D. What are Sevillya’s damages?
Issue A: Was Sevillya defamed?
[33] In applying the general principles of defamation to a particular set of facts, the Court must consider and weigh the delicate balance between the protection of reputation and the safeguarding of freedom of expression (see: Leenen v. Canadian Broadcasting Corp., 2000 22380 (ON SC), [2000] O.J. No. 1359 (S.C.J.)).
[34] The threshold test is whether the statement is defamatory either through its natural and ordinary meaning or through innuendo. A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers, a statement which tends to lower that person in the estimation of right-thinking members of society generally.
[35] To establish defamation, the onus is on a plaintiff to prove that the words complained of were “published”, that the words complained of refer to the plaintiff, and that the words complained of, in their natural and ordinary meaning, are defamatory of the plaintiff.
[36] In considering whether or not words are defamatory, it is for the trier of fact to determine whether the words, “when considered in context in which they were presented, would reasonably lower the plaintiff in the estimation of an ordinary, objective, reasonable member of society, who has common sense, is reasonably thoughtful and informed, but who does not have an overly fragile sensibility” (see: Myers v. Canadian Broadcasting Corp., [1999] O.J. No. 4380 (S.C.J.)).
[37] In my view, the contents of the Midnight Log defamed Sevillya. The words were published by being distributed to a list of persons working at the hotel. The description of her conduct in the Midnight Log was that of a person who was inebriated, demanding, shouting and generally behaving in a belligerent and inappropriate manner toward hotel staff. A fair reading of its contents would cause a reasonable person to believe that this description embraced and applied to Sevillya.
[38] In all of the circumstances and the context of the incident, I am satisfied that the description as pleaded in her Statement of Claim and as demonstrated by the Midnight Log referred to Sevillya and was defamatory of her in accordance with the above-cited legal test.
Issue B: Was the entry in the Midnight Log justified?
[39] Sevillya was not “very intoxicated”. She had not been consuming alcohol that evening, although Stefan had.
[40] However, I consider the balance of the entry to be substantially true and justified in the circumstances. I accept the evidence of Josh Herbert and Skomorowsky as to the incident at the front desk and their efforts to appease and mollify the Sandus who I conclude were upset and angry and disappointed and belligerent, as the content of the Midnight Log depicts.
[41] I prefer the evidence of Herbert and Skomorowsky as to the belligerent tone of Sevillya’s demands and her behavior toward them to that offered by the Sandus. The front desk staff and Manager would have no reason to be anything other than polite and accommodating toward her. Indeed, much of their work involves addressing complaints and mollifying guests.
[42] Skomorowsky did not challenge the assertion that the room assigned to the Sandus was uninhabitable due to the smell of smoke. An alternate room was offered. No refund was available according to the conditions of booking. I note the room had been entered and occupied. There is nothing unreasonable about the no-refund policy in these circumstances.
[43] Moreover, I would consider it reasonably expected that people who are disappointed and upset by the nature of their hotel accommodations will be emotional and express their dissatisfaction to the desk clerk and Night Manager in emotional terms and in raised voices. I therefore do not believe the Sandus' testimony insofar as they attempt to describe themselves as perfectly controlled, unemotional, polite and constrained in their expression of their complaints to hotel staff that evening. That playing down of their demeanour does not accord with the nature of their complaint and the circumstances.
[44] Further, the tone and content of the letters to Day and McCrory sent by Sevillya supports a conclusion that she has the capability of becoming excited and engaging in angry hyperbole when she meets resistance to her demands. I conclude on the evidence that Sevillya’s response to the disappointments of the evening was a gross over-reaction, substantially as depicted in the Midnight Log.
[45] When the contents of the Midnight Log are considered in their entirety, I find that the account and description contained therein are true and justified.
Issue C: Was the circulation of the Midnight Log entry and any reference to its contents during a discipline meeting with Stefan made an occasion of qualified privilege?
[46] The defence of qualified privilege applies to the occasion when a defamatory statement is made, not to the statement itself. On an occasion of qualified privilege a person may actually defame another without attracting liability (see: RTC Engineering Consultants v. Ontario et al., 2002 14179 (ON CA), [2002] O.J. No. 1001 (C.A.)).
[47] At the heart of the defence of qualified privilege is the notion of reciprocity or mutuality. A defendant must have some interest in making the statement and those to whom the statement is made must have some interest in receiving it. The interest sought to be served may be personal, social, business, financial, or legal. The context is important.
[48] I conclude on the evidence at trial that Skomorowsky had a duty to relate the details of the incident as he recalled them as part of the fulfillment of his management responsibilities at the hotel. Distributing the Midnight Log to those on the list of usual recipients plus Human Resources personnel was entirely within the scope of that duty. Similarly, those who received the Midnight Log via e-mail or otherwise had a corresponding duty to do so, to review its contents and to take whatever steps were considered necessary in light of the employment relationship. As such, the publication was made on an occasion of qualified privilege.
[49] Qualified privilege may be defeated if there is proof of actual malice. Malice must be proved by the plaintiff to defeat the presumption of good faith or honest belief in the truth of what was published that applies in such a case.
[50] A defendant is not required to investigate all sources of information, to satisfy themselves as to the 100% accuracy of the specific words incorporated into the impugned publication. I accept the evidence of Skomorowsky, as corroborated by Herbert, that he honestly believed the statements recorded by him in the Midnight Log were true and in particular, believed that Sevillya and Stefan were inebriated because of their conduct and appearance. Such a belief would be reasonable in all of the circumstances. Skomorowsky, in particular, did not fabricate or deliberately exaggerate the details of his description of the altercation in the Midnight Log.
[51] Similarly, the use of the Midnight Log and any reference to it by those involved in meeting with Stefan to discuss an issue of possible employee discipline likewise falls within the ambit of an occasion of qualified privilege. Indeed, it was necessary to inform Stefan of the purpose for which he was being met with and purportedly disciplined.
[52] I find that the Midnight Log entry was circulated by Fairmont and Skomorowsky only for legitimate purposes associated with fulfillment of their respective duties as Fairmont employees and has been restricted to those who are appropriate internal recipients of it.
[53] Accordingly, the defence of qualified privilege attaches to the publication of all statements defamatory of Sevillya in this instance and serves to defeat her claim.
Issue D: What are Sevillya’s damages?
[54] In the event that I am found to be wrong in arriving at these conclusions, I must consider the quantum of Sevillya’s damages.
[55] As mentioned above, the contents of the Midnight Log were circulated only within the circle of individuals within Fairmont who were its appropriate recipients. To that extent, the publication of the words complained of was contained.
[56] I accept that Sevillya was upset and embarrassed as a result of the publication. This must be separated, however, from her upset at what she perceived to be mistreatment at the front desk and lack of response by management when she complained.
[57] Sevillya did not require any special treatment or incur any special expenses as a result of this publication. Her damages are largely characterized a loss of reputation and hurt feelings.
[58] In all of the circumstances, I would assess her damages at $25,000.00.
Conclusion
[59] For these reasons, the action is dismissed.
Costs
[60] If the parties cannot agree on the subject of costs, written submissions may be delivered by the Defendants within 30 days of this decision, and by the Plaintiff within 15 days thereafter.
STEWART J.
Released: December 30, 2014
COURT FILE NO.: CV-08-363445
DATE: 20141230
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SEVILLYA SANDU
Plaintiff
and –
FAIRMONT HOTELS INC. and DARREN SKOMOROWSKY
Defendants
REASONS FOR JUDGMENT
STEWART J.
Released: December 30, 2014