ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV 257/11
DATE: 20141128
BETWEEN:
Shane Sargant
Mr. John Tamming, for the Plaintiff
Plaintiff
- and -
Jeff Lobsinger
Mr. Erroll Treslan, for the Defendant
Defendant
- and -
Molson Coors Canada Inc.
Ms Joanne Horton, Counsel for the Third Party
Third Party
HEARD: November 26, 2014
REASONS FOR JUDGMENT
Conlan J.
I. INTRODUCTION
[1] Was it slanderous? Did the restaurateur defame the good reputation of the events coordinator?
[2] That is what this case is about.
[3] The Plaintiff, Shane Sargant (“Sargant”), has sued the Defendant, Jeff Lobsinger (“Lobsinger”), for, as per the Statement of Claim, “[d]amages in the amount of $500,000.00 for defamation of character”, plus interest and costs.
[4] Lobsinger has issued a Third Party Claim against Molson Coors Canada Inc. (“Molson”). That Claim is restricted to contribution and indemnity in the event that Lobsinger is adjudged to be liable and owe damages to Sargant.
[5] On consent, the main action and the third party action were tried together.
[6] On consent, the matter was continued as an action under Rule 76, the simplified procedure, which obviously has implication for the quantum of damages recoverable by the Plaintiff.
[7] On consent, the trial was an ordinary (rather than a summary) one.
[8] This was a short trial which, but for closing submissions by counsel the following morning, started and finished in Owen Sound on November 26, 2014. The evidence was completed in less than one full day.
II. THE FACTS
[9] The basic facts are straightforward and largely undisputed.
[10] Sargant was hired under contract to promote and coordinate special events for the Sauble Beach and South Bruce Peninsula (Wiarton) Chambers of Commerce.
[11] By all accounts, the Chambers were generally pleased with Sargant's work, at least until June 2011.
[12] Lobsinger was not happy with Sargant, however. Lobsinger owned a restaurant and bar directly across the street from the beach in Sauble where the special events were being held.
[13] No doubt, Sargant's work had an adverse impact on Lobsinger's business.
[14] In June 2011, the Sauble Beach Chamber of Commerce had its annual general meeting (“AGM”). Sargant was there. Lobsinger was there. And scores of others were there, at least initially, including local elected officials and media personnel.
[15] At some point during the meeting, Lobsinger stood up and said something.
[16] What Lobsinger said is in dispute.
[17] He either alleged that Sargant was receiving a monetary kick-back from Molson, a sponsor of Sauble Beach's special summer events being promoted by Sargant; or he merely asked a question - whether the rebate being paid by Molson was to be received by the Chamber or by Sargant or his company directly.
[18] If it was the former, then what Lobsinger said was clearly false. The evidence establishes that Sargant (personally or his company) did not receive any kick-back or rebate money from Molson.
[19] After the meeting, Sargant felt humiliated. As he said at trial, in the special events promotion business, the allegation of dishonesty and secret dealings with sponsors is the "kiss of death".
[20] Sargant continued to be paid by the Sauble Chamber of Commerce but did no further work for it, at its request.
[21] When Sargant's contract expired, no new contract was in the cards.
[22] Sargant left the area and moved to Stayner, Ontario. In the Spring of 2013, he found a job with the Township of Clearview, where he still works in the tourism arena.
[23] He makes more money now than what he contracted for with the Chambers of Commerce.
III. THE POSITIONS OF THE PARTIES
The Plaintiff
[24] Simply put, the Plaintiff argues that Lobsinger said what Sargant and Bruce Parsons (“Parsons”), who testified at trial for the Plaintiff and was at the material time the President of the Sauble Beach Chamber of Commerce and the Chair of the meeting during which the impugned comments were made by Lobsinger, allege.
[25] Specifically, Lobsinger accused Sargant and/or his company of taking financial kick-backs from Molson.
[26] That statement made by Lobsinger was defamatory, says the Plaintiff.
[27] The Plaintiff requests general damages in the range of $40,000.00 to $50,000.00.
The Defendant
[28] In a nutshell, the Defendant argues that he did not say what he is alleged to have said by Sargant and Parsons. At the AGM, Lobsinger merely asked whether any rebate being supplied by Molson was being paid to the Sauble Chamber of Commerce or to Sargant or his company directly.
[29] What Lobsinger said was not defamatory, submits the Defendant.
[30] If the Court finds otherwise, Lobsinger argues that there is no liability because the comments are saved by the defence of justification, or the defence of fair comment, or the defence of qualified privilege.
[31] If the Court finds otherwise, then, in the submission of the Defendant, there are no damages that have been established by Sargant.
[32] If the Court finds otherwise, the Defendant submits that contribution and indemnity ought to flow from Molson because Lobsinger would not have said what he said at the AGM but for what was allegedly told to him by the Molson representative, Brock James (“James”).
The Third Party
[33] Succinctly put, Molson argues that James said nothing to anyone which caused or contributed to Lobsinger saying what he said at the AGM, and thus, the third party claim is hogwash (my word).
IV. ANALYSIS
The Law
Burden and Standard of Proof
[34] The Plaintiff must prove his claim on a balance of probabilities. That applies to both liability and damages.
[35] In actions based on libel, the plaintiff’s damages are presumed. That is not generally the case with slander.
[36] In the world of defamation, historically, the Courts are less eager to intervene where the alleged defamatory words were spoken as opposed to put in writing. Libel, second edition (2010), by Peter A. Downard, section 15.01, page 261.
The Tort of Defamation Generally
[37] “The tort of defamation consists of the two torts of libel and slander. The law of libel and slander protects an individual’s reputation”. Warman v. Grosvenor, 2008 CarswellOnt 6629 (S.C.J.) at paragraph 53.
[38] In our case, Sargant must prove (i) that the impugned words were defamatory; (ii) that the words in fact referred to him; and (iii) that the words were published (communicated to at least one other person). Grant v. Torstar Corp., 2009 SCC 61, [2009] S.C.J. No. 61 (S.C.C.) at paragraph 28.
[39] Sargant need not prove that Lobsinger intended to do harm or even that he was careless. The tort is one of strict liability. Grant, supra at paragraph 28.
[40] Once the plaintiff has proven the elements of the tort of defamation, the onus then shifts to the defendant to advance a defence in order to avoid liability. Grant, supra at paragraph 29.
[41] Both statements of opinion and statements of fact may attract the defence of privilege, either absolute or qualified. Grant, supra at paragraph 30.
[42] Statements of opinion may attract the defence of fair comment. Grant, supra at paragraph 31.
[43] There are generally only two defences available to statements of fact: justification (that the statement was substantially true) and privilege (that the statement was made in a protected context). Grant, supra at paragraph 32.
[44] It should be noted, however, that there appears to have developed in the jurisprudence a defence of responsible communication. That is dealt with further below.
What Does “Defamatory” Mean?
[45] “’Defamatory meaning’ can be defined as ‘whether the words complained of, in their natural and ordinary meaning, may tend to lower the plaintiff in the estimation of reasonable persons or to expose the plaintiff to hatred, contempt or ridicule’”. Dubuc v. 1663066 Ontario Inc., [2009] O.J. No. 1137 (S.C.J.) at paragraph 10; Moseley-Williams v. Hansler Industries Ltd., [2008] O.J. No. 4457 (S.C.J.) at paragraph 83; Mantini v. Smith Lyons LLP (2003), 2003 22736 (ON CA), 64 O.R. (3d) 516 (C.A.) at paragraph 10.
[46] “What is defamatory may be determined from the ordinary meaning of the published [or in the case of slander, spoken] words themselves or from the surrounding circumstances”. Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3 (S.C.C.) at paragraph 62.
[47] Where there may be some ambiguity in what was said by the defendant, the question boils down to what reasonable persons would have taken from what the defendant said. Skorski v. Sajur, [1998] O.J. No. 6285 (Gen. Div.) at paragraph 17.
Defences
[48] “Justification, or truth, is a defence to a defamation action. However, as defamatory words are presumed to be false, the defendant bears the onus of proving the substantial truth of the sting, or the main thrust, of the defamatory words”. Mudford v. Smith, 2009 55718 (ON SC), 2009 CarswellOnt 6326 (S.C.J.) at paragraph 33; Cusson v. Quan, 2007 ONCA 771, [2007] O.J. No. 4348 (C.A.) at paragraph 35.
[49] Fair comment is a defence to a defamation action. A statement of fact, however, cannot give rise to a defence of fair comment. “The defence of fair comment requires that the comment be based on facts truly stated”. And “the maker of the comment must have an honest belief in the truth of the comment” – the underlying facts must be true. Mudford, supra, at paragraphs 48 and 49; Leenen v. Canadian Broadcasting Corp. (2001), 54 O.R. (3d) 612 (C.A.) at paragraphs 15-16.
[50] As pointed out at paragraph 132 of the decision of the British Columbia Supreme Court in Hunter v. Chandler, [2010] B.C.J. No. 979, the defence of responsible communication was explained by the Supreme Court of Canada in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640. There are two elements: (i) the publication must be on a matter of public interest, and (ii) the defendant must show that the words published or spoken were responsible in that he was diligent in trying to verify the allegations.
[51] “The defence of qualified privilege applies if the statement or publication is made in the exercise of a duty, or for the purpose of pursuing or protecting some interest, provided that it is made to a person who has some corresponding interest. In order to defeat the defence the [plaintiff] must prove malice…”. Swan v. Durham Condominium Corp. No. 45, [2012] O.J. No. 3934 (S.C.J.) at paragraph 53.
[52] Malice means ill will towards the plaintiff. Malice may be established where the defendant knowingly made a false statement or was reckless in that regard. Further, qualified privilege may be defeated where the information communicated in the statement was not reasonably appropriate to the legitimate purposes of the occasion during which the statement was made. Swan, supra at paragraph 60, citing paragraphs 79 and 80 of the decision of the Supreme Court of Canada in Botiuk, supra.
Damages
[53] In assessing damages arising from defamatory comments, these factors ought to be considered: the conduct of the claimant, his position and standing, the nature and circumstances of the defamatory words (whether libel or slander), the mode and extent of publication or circulation, the absence or refusal of any retraction or apology, and the conduct of the defendant after the libel or slander. Mudford, supra at paragraph 55, citing Hill v.Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130 (S.C.C.) at paragraph 132.
[54] The motivation of the defendant is also a relevant consideration. Hill, supra at paragraph 187.
[55] In terms of the purposes of general damages in defamation cases, I can say it no clearer than my colleague, Justice Belobaba, did in Mudford, supra at paragraph 56, referring as well to the decision of Justice Himel in Fuda v. Conn, 2009 1140 (ON SC), [2009] O.J. No. 188 (S.C.J.) at paragraph 30.
[56] General damages in defamation cases serve three functions: 1) to act as a consolation to the claimant for the distress she has suffered from the publication of the statement; 2) to repair the harm to her reputation (including, where relevant, her business reputation); and 3) as a vindication of her reputation. General damages are awarded at large and the plaintiff need not show a loss. The monetary award is to demonstrate to the community the vindication of the plaintiff’s reputation. General damages are not given as compensation for the plaintiff’s damaged reputation but because she was injured in her reputation.
[56] “An award of general damages is intended to compensate the injured plaintiff for the harm occasioned by the defamatory statement”. “In addition, the award may include pecuniary loss actually established”. Zeppieri & Associates v. Silverberg, [2004] O.J. No. 4648 (S.C.J. – Toronto Small Claims Court) at paragraph 17.
Factual Findings and Legal Determinations
What did Lobsinger say at the AGM?
[57] I find as a fact that Lobsinger, at the AGM, said words to the effect of “Shane Sargant is getting a kick-back of $50.00 a keg for beer sales”. The Plaintiff’s name was used. The term “kick-back” was used. The $50.00 figure was used.
[58] It was a statement of fact. It was an accusation. It was not a question.
[59] That was the evidence at trial of Parsons, which evidence I accept, for these reasons.
[60] First, Parsons was the most objective and independent witness called at trial on this issue of what words were spoken by Lobsinger at the AGM.
[61] Sargant and and Lobsinger are parties. Jason Schnurr (“Schnurr”), the Vice-President of the Board of the Sauble Chamber of Commerce at the time, was clearly aligned with Lobsinger prior to the meeting.
[62] Second, Parsons was completely unshaken in cross-examination as to what Lobsinger said.
[63] Third, Parsons would have had, at the time, very good reason to pay close attention to what was being said at the AGM, especially by Lobsinger.
[64] Parsons knew in advance that Lobsinger had complaints about Sargant and/or the special events on the beach.
[65] Fourth, not only was Parsons a credible witness at trial, his evidence on this issue was very reliable.
[66] Parsons demonstrated at trial a clear and vivid memory of what was said by Lobsinger, something that is not true of Schnurr, the only other person to testify on this point besides the main parties themselves.
[67] I am not criticizing Schnurr. But he was clear in his evidence at trial that he could not recall the words used by Lobsinger at the AGM. He was paraphrasing.
[68] Finally, Parsons’ account of what was said is much more consistent with what everyone agrees happened immediately following the comments made by Lobsinger.
[69] By all accounts, Parsons cautioned Lobsinger on the seriousness of the comments and questioned whether Lobsinger had any evidence to support what he had said.
[70] That is strong circumstantial evidence that what Lobsinger said was a direct allegation of wrongdoing by Sargant and not a simple query as to whether money paid by Molson would be going to the Chamber of Commerce or to Sargant or his company directly.
Was what Lobsinger said at the AGM false?
[71] Clearly, yes.
[72] I accept the unchallenged evidence of Molson’s management (Exhibit 12) that “at no point has Molson Coors given money for keg sales to Shane Sargant or Sargant Events”. That was corroborated by James in his evidence at trial.
Were the comments made by Lobsinger defamatory?
[73] Clearly, yes.
[74] The words spoken by Lobsinger, in their natural and ordinary meaning, were likely to lower Sargant’s reputation in the estimation of a reasonable person.
[75] “Kick- back” connotes dishonesty at the very least and criminality at its highest. Either way, that kind of allegation against a special events promoter is the “kiss of death” – I agree with Sargant’s description of the likely effect of such an accusation.
[76] There was nothing ambiguous about what Lobsinger said.
Is there a defence available to Lobsinger?
[77] No.
[78] The defence of justification is not available. The words spoken by Lobsinger were in no way substantially true. They were wholly untrue.
[79] Not a cent was being paid by Molson to Sargant or his company on account of beer sales. The notion of a kick-back was pure fiction.
[80] The defence of fair comment is not available. The words spoken by Lobsinger were a statement of fact, not an opinion. They were not qualified by “perhaps” or “maybe” or “I think” or “I believe” or “I suspect” or anything like that. The words were not posed as a question or a possibility. They were not an invitation to investigate. They were an accusation of quasi-criminality on the part of Sargant.
[81] The defence of qualified privilege is not available. First, although I am not prepared to go so far as to say that Lobsinger knowingly made a false statement, he was certainly reckless in making the statement that he made. This was not simply something said in bad taste. Second, the comments were not reasonably appropriate to the occasion of the AGM.
[82] On the first point, I prefer the evidence of James over that of Lobsinger as to what was discussed between them during their meeting, pre-AGM, at Lobsinger’s establishment.
[83] Specifically, I find as a fact that James never said anything about Molson paying money to Sargant or Sargant’s company.
[84] Why in the world would James have said that? It makes absolutely no sense. He would be divulging private information about a third party. He would be putting himself and Molson on the line for offering kick-backs.
[85] Having watched and listened to James testify at trial, he does not strike me as that stupid or cavalier of a person.
[86] Thus, even if Schnurr had told Lobsinger, pre-AGM, that James had told Schnurr that Sargant or his company was receiving kick-backs, it is clear to me that Lobsinger had insufficient and second-hand information on which to base his serious accusation during the AGM.
[87] The statement was made recklessly.
[88] On the second point, the statement made was overkill for the occasion. It would have been more reasonable to have said what Lobsinger testified he said, which evidence I have rejected in favour of Parsons’ testimony.
[89] A simple question as to whether any potential rebate money being paid or to be paid by Molson would be going to Sargant or his company directly would have been the appropriate way of handling the matter.
[90] The defence of qualified privilege fails.
[91] Although not argued by Lobsinger’s counsel in closing submissions, the defence of responsible communication also fails. For the reasons already stated, Lobsinger was not diligent in trying to verify what he may have suspected was wrongdoing by Sargant.
[92] Lobsinger did nothing at all. He simply stood up in a room with many others and accused Sargant of, in essence, pilfering funds for his personal use.
Has liability been proven on balance?
[93] Yes.
[94] For the reasons stated above, Sargant has proven on balance (i) that the impugned words were defamatory; (ii) that the words in fact referred to him; and (iii) that the words were published (communicated to at least one other person).
[95] On the third point, whether politicians and the media were still there or not is irrelevant; on all accounts, there were many persons at the AGM when Lobsinger said what he said.
What are the proven damages?
[96] In a laser question at the conclusion of Mr. Treslan’s able cross-examination of Sargant, the Plaintiff answered “I wouldn’t know” as to whether he lost a cent as a result of what Lobsinger said at the AGM.
[97] Consequently, no pecuniary or special damages can be awarded. There was no economic loss suffered by Sargant.
[98] But some award of general damages is required in these circumstances.
[99] It must not be a king’s ransom, however.
[100] That is because I agree with Mr. Treslan that the evidence is relatively scant on how Lobsinger’s false accusation harmed the reputation of Sargant.
[101] The Chamber of Commerce took no action against Sargant. The contract simply ran its course and expired. Sargant continued to be paid.
[102] Even Sargant himself, as neatly pointed out by Ms. Horton for the third party in final submissions, thought, the day after the AGM, that no real harm would be occasioned by what Lobsinger had stated the evening before – Exhibit 9: “[t]he good news is no one seem [sic] to believe it in the crowed [sic]”, wrote the Plaintiff in an email to James the very next day after the AGM.
[103] Mr. Tamming is correct in his helpful submissions that Sargant is not required to prove general damages by some dollar for dollar measuring stick. But he is required to prove a loss or injury to his reputation.
[104] Given (i) the testimony of Sargant that the Chamber of Commerce told him, post-AGM, not to represent it publicly any longer, which evidence I accept; and (ii) the seriousness of the accusation levelled at Sargant by Lobsinger; and (iii) the small size of the Sauble Beach community; and (iv) the number of persons at the meeting; and (v) the nature of the industry in which Sargant was working at the time; and (vi) the shock and dismay on the part of Parsons after hearing the accusation (which reaction is illustrative of what a reasonable person would have felt), I accept and find as a fact that Sargant’s reputation was injured, to some degree, as a result of what Lobsinger stated at the AGM.
[105] To conclude otherwise would be contrary to basic common sense.
[106] The range of general damages awarded in the cases filed by the Plaintiff is $20,000.00 to $50,000.00, except a couple of decisions which are much higher than that but of little similarity to the facts before me.
[107] There is no request by Sargant for aggravated or punitive damages.
[108] Mr. Treslan commended to me the decision of Zeppeiri, supra, where the Small Claims Court Judge found liability but awarded just $1.00 in damages to the plaintiff.
[109] I decline to do so here. In that case, there was a determination that no injury was caused to the plaintiff by the defamatory conduct.
[110] Although tempered, I have found otherwise here.
[111] There is no science to awarding general damages. Quantum is largely discretionary.
[112] I think that the Plaintiff’s request for something in the range of $40,000.00 to $50,000.00 is too high. Mr. Tamming made some good points in closing as to the aggravating factors at play here, however, given the cases filed, I am of the opinion that a more modest award would be appropriate on our facts.
[113] Turning to the factors outlined in Hill, supra, I make these observations.
[114] First, the conduct of the claimant (Sargant), before and after the AGM, is unassailable.
[115] Second, Sargant’s position was one based on trust.
[116] Third, the defamatory words were serious and accused Sargant of, at the very least, dishonest dealings.
[117] Fourth, there were many persons at the AGM when Lobsinger defamed Sargant.
[118] Fifth, I am not aware of Lobsinger ever having apologized to Sargant, directly or indirectly.
[119] Sixth, even today, Lobsinger is unwilling to state that Sargant did not receive monetary kick-backs from Molson. Even Exhibit 12 has not convinced Lobsinger of his error.
[120] Finally, as to the motivation of Lobsinger, I do not think that he was trying to ruin Sargant personally. I think that Lobsinger was very bitter about how these special events were ruining his restaurant business. That bitterness clouded his judgment and caused him to act hastily and recklessly.
[121] Balancing everything, including the undeniable fact that Sargant did fairly well professionally and economically after the AGM, $20,000.00, the figure at the low end of the range of the cases filed by the Plaintiff, is what I will award to Sargant.
The Third Party Claim
[122] Given my factual finding that James never said a peep to Lobsinger about Molson paying money directly to Sargant or his company, it is clear that Lobsinger made his statement at the AGM based on nothing done or said by the third party.
[123] As to whether James said anything of the sort to Schnurr, I prefer the evidence of James and find that he did not.
[124] Why would he have? There was no deal for Molson to give cash to Sargant or his company on account of beer sales.
[125] Consequently, the request for contribution or indemnity from Molson must be dismissed. So ordered.
V. CONCLUSION
[126] On the main action against Lobsinger, Judgment shall issue in favour of Sargant in the amount of $20,000.00 for general damages, plus interest as pleaded in the Statement of Claim.
[127] On the third party action against Molson, that claim by Lobsinger is dismissed.
[128] As for costs, I encourage the parties to settle those. Otherwise, within fifteen days of the release of these Reasons, I may be spoken to through an appointment arranged with the trial coordinator in Owen Sound.
[129] After fifteen days, costs will be presumed to have been settled.
[130] This is not a case for written submissions on costs.
[131] I want to thank all counsel, Mr. Tamming, Mr. Treslan, Ms. Landry and Ms. Horton, for their hard work and very competent presentation of the evidence and the arguments at trial.
[132] What really drove this case was the first factual issue – what did Lobsinger say at the AGM? Once that was decided, the task became difficult for counsel for the Defendant.
Conlan J.
Released: November 28, 2014
2014 ONSC 6936
COURT FILE NO.: CV 257/11
DATE: 20141128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shane Sargant
Plaintiff
- and -
Jeff Lobsinger
Defendant
- and -
Molson Coors Canada Inc.
Third Party
REASONS FOR JUDGMENT
Conlan J.
Released: November 28, 2014