Court File and Parties
Bracebridge Court File No.: CV-14-110-00 Date: 20160628 Ontario Superior Court of Justice
Between:
Ron Brent Plaintiff – and – Ruth-Ellen Nishikawa Defendant
Counsel: M.A. MacDonald, for the Plaintiff C.A. Painter, for the Defendant
Heard: June 17, 2016
Reasons for Decision on Motion
R. MacKinnon J.:
[1] The plaintiff seeks damages for defamation. Pleadings have been exchanged, both parties have filed affidavits and both move for summary judgment under Rule 20. Both agree that the record before me is sufficiently fulsome to deal with their competing claims. I am entitled to presume their motion records contain all evidence which they would present at trial. Under Rule 20, I am authorized to grant summary judgment if I am is satisfied that there is no genuine issue for trial with respect to a claim or a defence.
[2] A party opposing a summary judgment motion must show a real chance of success. I am entitled to weigh evidence, evaluate credibility, and draw reasonable evidentiary inferences. Hryniak v. Mauldin, 2014 SCC 7 mandates that summary judgment rules must be interpreted broadly, favour proportionality and deliver fair access to the affordable, timely and just adjudication of claims. I am satisfied, for reasons which I will set out, that there are no genuine issues requiring a trial in this proceeding. The process has resulted in evidence sufficient to enable me to adjudicate this dispute.
Background
[3] The plaintiff, Ron Brent, resided at all times in the Township of Muskoka Lakes (herein “TML”). He was until 2014 one of its municipal councillors. He was unsuccessful in October election and was not returned to office as a Township and Ward C District Councillor. The defendant, Ruth-Ellen Nishikawa also lives in the municipality. She is both a former and current TML and Ward A District Council member. She was re-elected in the 2014 election.
[4] Public anger and protest over a proposed hydroelectric project at the Bala Falls had been ongoing for several years by the time of 2014 election.
[5] This claim for defamation by Mr. Brent centres upon Ms. Nishikawa’s email response to a public citizen and copied to others following both open and closed sessions of municipal council held June 13, 2014. On July 15, two days after that council meeting, citizen Pat Arney emailed her concerns to the defendant.
[6] Some 22 minutes later that same day, Ms. Nishikawa sent her response email to Ms. Arney. A copy is made Schedule “A” to these Reasons (the underlining is mine). Mr. Brent alleges that it contained statements defamatory to him personally, professionally and in his capacity as TML councillor because the defendant alleged to Ms. Arney:
(a) that Ms. Arney’s information had come from the plaintiff; and (b) that the plaintiff had disclosed to Ms. Arney comments that were made during a closed session of Council with its solicitor, and (b) that the plaintiff had stormed out of the June 13 Council meeting in question while having a declared conflict of interest on the Bala Falls matter in question for nearly two years.
[7] Ms. Arney was not in 2014 a TML Councillor, but had been so in the past. She was concerned about the municipal political process surrounding the proposed Bala Falls project. In reply to Ms. Arney Ms. Nishikawa copied it to all TML Councillors, to the TML mayor, to all Councillors in the District Municipality of Muskoka (herein “DMM”) and to the DMM Chair. Along with Ms. Arney, many copied were not present at the June 13 closed TML Council meeting.
[8] It is the position of the plaintiff that none of the impugned statements which the defendant attributed to him were true, and that they were known by her to be untrue. He asserts she deliberately made them to defame him and to gain personal political advantage for herself in the then current 2014 election campaign on an issue on which they were in disagreement.
[9] It is the position of the defendant that although her words clearly did refer to Mr. Brent, they were not defamatory, were made on an occasion of qualified privilege and were protected by fair comment. She argues that no malice on her part has been proven. She asserts she was merely responding as a Councillor to Ms. Arney, a concerned citizen, on issues of considerable significance to all citizens of TML. At the hearing of these motions counsel for the defendant withdrew the assertion that this lawsuit by Mr. Brent is strategic litigation against public participation (SLAPP).
Were the Words Defamatory?
[10] Freedom of expression is a crucial element of our democracy. Defamation includes the dissemination of information that tarnishes a person’s good name, causing his or her standing in the community to be impaired. The standard of measurement is what would a person of fair average intelligence think - an objective determination. The onus of proof rests on the plaintiff. The court must look at the plain and ordinary meaning of the words. The court may take into consideration all of the circumstances, including any reasonable implication the words may bear, the context in which they were used, the audience to whom they were published, and the manner in which they were presented. The court then determines whether the impugned words tend to lower the reputation of the plaintiff in the minds of reasonable persons. It is the fact of publication alone which is actionable. Liability is in no way dependent on the motive of the defamer. The intended meaning of the speaker is not relevant. Rather, the test is what meaning would be attributed to the words by a reasonable reader or listener.
[11] The defendant swore that when she read Ms. Arney’s initial email, it led her to believe that Ron Brent had shared the information with Ms. Arney. She swore that, as she read the email, it was as if she was back in that closed session and the plaintiff was speaking in the email, not Ms. Arney.
[12] On June 16, after he returned from a trip to Quebec, Mr. Brent immediately notified the defendant in writing that she was factually mistaken. Pat Arney did so as well by further alerting Ms. Nishikawa by e-mail at 8:02 p.m. that same day - that she was wrong. Ms. Arney clearly and unambiguously told the defendant that Mr. Brent had no conversation at all with her about the matter in question which had been discussed by Council in closed session. Ms. Arney’s affidavit on this motion fully supports Mr. Brent in that regard. Further, the June 13, 2014 Minutes of TML Council demonstrate that the discussion which was the subject of Ms. Arney’s initial e-mail, and the impugned Nishikawa reply were in fact discussed at the open and public portion of the TML Council that day.
[13] Despite the defendant’s unlimited opportunity for retraction and apology over the past two years, she has fully refused to do so. It is clear and I find that the first person to disclose any information about the closed portion of that June 13 TML meeting was the defendant herself. She was the one who disclosed the subject matter by using the words she chose in her June 15 email reply to Ms. Arney. She had an additional focused opportunity to apologize and retract her communication when she was served with the plaintiff’s July 2014 Notice of Intention to Sue.
[14] It is clear and I find that after Mr. Brent left the June 14 closed TML meeting, he departed Ontario and spoke to no one about it. I find as well that he travelled to northern Quebec where he had no cell phone or other communication access until he returned home on the day the defendant made her allegations. I find he communicated no TML private or confidential information to Pat Arney.
[15] It is plain and obvious, objectively viewed, that Ms. Nishikawa’s impugned words were defamatory of Mr. Brent, both in his personal capacity as a local resident and businessman - and in his capacity as a then sitting TML municipal councillor. They were false and untrue. The plaintiff has met his onus. As I have noted, the test is objective. The defamation standard should not be so low as to stifle free expression unduly, nor so high as to impair the ability to protect the integrity of a person’s reputation. I have assessed the content of Ms. Nishikawa’s e-mail to Ms. Arney from the perspective of an ordinary, reasonable, thoughtful and informed member of society, rather than of someone who has overly fragile sensibility. I find that her words were defamatory to Mr. Brent personally, professionally and in his capacity as TML councillor. Her communication tended to lower his reputation in the community. I find it was published to all persons to whom it was addressed – including those, like Ms. Arney, who were not even present at the June 13 council meeting. In its plain and ordinary meaning it tended to lower the reputation of Ron Brent in the eyes of a reasonable person. It cast serious aspersions on his business ethics and trustworthiness. It implied dishonesty and financial self-interest. It was and is clearly defamatory of him.
Does the Defence of Qualified Privilege Apply?
[16] Qualified privilege may act as a defence to defamation where it has been established, as here, that the comment was otherwise defamatory. Qualified privilege attaches to “the occasion when the defamatory statement is made, not to the statement of itself”: RTC Engineering Consultants v. Ontario et al (2002), 2002 ONCA 14179, 58 O.R. (3d) 726 (C.A.). Qualified privilege involves reciprocity or mutuality. The statement maker must have some interest in making it and the receiver(s) must have some interest in receiving it. The defence is aimed at serving the public in the sharing of information, rather than serving the private interests of either the defamer or the recipient. Privilege attaches only to the extent that the communication was reasonably appropriate in the context of the circumstances at the time the information was given. The test is whether persons of ordinary intelligence and moral principle, or the great majority of right-minded persons, would have considered it a duty to communicate the information to those to whom it was published. The onus is on the defendant to prove all of the facts and circumstances necessary to bring the impugned words within the scope of the privilege.
[17] Ms. Arney sent her initial e-mail to the defendant about her concerns about the Bala Falls project, an issue of public interest. The plaintiff argues, and I find, that the defendant’s response was to defame the plaintiff in her e-mail to Ms. Arney, and to copy it to all TML and DMM councillors. The defendant has a legal onus to prove on a balance of probabilities all facts and circumstances necessary to bring her impugned words within the scope of qualified privilege. She has not met her onus. There is no reciprocity or mutuality demonstrated in these circumstances. An occasion covered by qualified privilege is one in which the person making the communication has either an interest, or a legal, social or moral duty to make it - and the person to whom the communication is made has a corresponding interest or duty to receive it. In considering qualified privilege, I keep in mind that the defendant need not establish the objective reasonableness of her impugned statements. However, from all of the evidence before me on these motions, I find that Ms. Arney was clearly not seeking defamatory comments about Mr. Brent when she emailed the defendant about her Bala Falls concerns. I also find Ms. Nishikawa responded to those concerns by immediately using the opportunity to defame Mr. Brent.
[18] When the defendant falsely wrote that the plaintiff disclosed private information from a closed meeting with Council, she tied that claim by the words she used to her additional assertion that the private information came from the plaintiff who obtained it from his participation at a closed session with TML’s solicitor. She tied it further by asserting that the plaintiff “has declared a conflict of interest on this matter for nearly two years”. The defendant’s false statement about disclosure of private information being obtained from a closed Council meeting with legal counsel was also tied by her use of words referring to the plaintiff’s declared of conflict of interest. It implied that the plaintiff participated because he had a pecuniary interest. There is no other reasonable interpretation from her words.
[19] It is clear that this plaintiff and this defendant held opposing views on the Bala Falls project. Ms. Nishikawa’s clear purpose in sending her e-mail was to respond to Ms. Arney, who also held a view opposite hers. She used that opportunity to defame the plaintiff who was a political proponent of Ms. Arney’s view. There is no reciprocity or mutuality in these circumstances. Would persons of ordinary intelligence and moral principle, or the great majority of right-minded persons, have considered that Ms. Nishikawa had a duty to communicate this information to Ms. Arney and the others? Clearly not. When a citizen writes a letter of concern to a politician, such as this TML defendant councillor, that councillor has no duty to defame another TML councillor who champions the same issue as the citizen – and to copy others in these circumstances. There is no reciprocity. Pat Arney also had no duty to receive from the defendant the defamatory words against Mr. Brent - who happened to share her particular views on the Bala Falls project.
[20] The defendant has not demonstrated that the defence of qualified privilege applies. Accordingly there is no need for the plaintiff to prove malice.
[21] It is a fair meaning of the words used by Ms. Nishikawa that the plaintiff had breached TML’s 2014 rules of conduct and also that he had a financial interest in the closed meeting matter under discussion with counsel. I also find it is a fair meaning of her words that she was asserting that the plaintiff put his self-interest ahead of the public interest - and stormed out of the Council meeting in doing so.
[22] Counsel for the defendant surprisingly asserted that the truth of Ms. Nishikawa’s words in her January 15 e-mail was and is irrelevant. I disagree. Truth is always important and always relevant. To make false statements which are likely to injure the reputation of another has always been regarded as a serious matter. I find beyond reasonable doubt that within 24 hours of her impugned email it was clearly driven home to Ms. Nishikawa that she was wrong about Mr. Brent. By that time she clearly knew from both the plaintiff and Pat Arney that she was wrong. The plaintiff wrote to ask for an apology and a retraction. She refused. He served a Notice of Intent to Sue. She continued to refuse, retract or apologize. I find Mr. Brent tried to first deal with the issue privately and directly with the defendant. He also asked Ms. Arney to confirm to Ms. Nishikawa that she was wrong. Mr. Brent then spoke publically about the defamatory statements. The defendant argues that in doing, so he himself disclosed the content of discussion at the closed TML meeting. I find his sole purpose in doing so was an effort to mitigate his damages from the defendant’s defamation considered contextually he was operating his local business and running his current political campaign for the 2014 looming municipal election. Counsel for the defendant argues that any damage to Mr. Brent’s reputation was caused by his own distribution of the contents of the Nishikawa email to the media, to TML, and to DMM. I disagree. The plaintiff’s sole purpose was, I find, to attempt to restore his reputation which had been damaged by the defendant’s words. He was justified.
[23] The dominant purpose of Ms. Nishikawa’s response to Ms. Arney was to defame and denigrate Mr. Brent. By her persisting to the present in refusing to apologize or retract, it is clear to me and I find, on a balance of probabilities, that the words she used were, at the very time she published them, wrong, false, defamatory and malicious. Ms. Nishikawa fails in her defence of qualified privilege. The plaintiff succeeds in proving legal malice even though it was not pleaded. Although it was not necessary for the plaintiff to prove malice, I am fully persuaded that this defendant had no honest belief at any time in the truth of her impugned comments. They were not sincerely made. I reject her assertions in her affidavit to the contrary.
Were the Impugned Words Fair Comment?
[24] Comment is a statement of opinion about a matter of public interest. Assertions of fact are not protected by the defence of fair comment. The comment must be based on facts that are either known or potentially available. The comment must be reasonably recognizable as an opinion as opposed to a fact allegation. A defamation defendant must get his or her facts right in order to win the protection of the defence. When considering fair comment, it is not important that a defendant reasonably believed his or her words to be true.
[25] Assertions of fact are not protected by the defence of fair comment. The plain meaning of the impugned words is that Ms. Nishikawa asserted Ms. Arney’s factual information had come from the plaintiff, a TML Councillor who the defendant asserted had stormed out of the June 13 Council meeting while it remained in closed session with its solicitor. The defendant further asserted Mr. Brent had a declared conflict of interest on the matter under discussion for nearly two years. The plain meaning of all the impugned words, considered individually and collectively, is that they were not statements of opinion but were all assertions of facts. The defence of fair comment fails.
Damages
[26] The publication of defamatory words against people in public life undermines and weakens the fabric of our democratic process. By imputing improper motives, lack of good faith, or acting for a pecuniary interest, such libels discourage Canadians from entering public service. Damages serve as a deterrent to this practice and offer a measure of protection to those serving their communities (Mack v. Northhill News Ltd., [1964] 44 D.L.R. 147 at p. 164).
[27] No special damages were proven. No punitive damages were pleaded or claimed on his behalf. I agree with counsel for Mr. Brent and find that the impugned Nishikawa words cast aspersions on her client’s reputation in a matter touching both on his personal and business reputations and on his political reputation as TML councillor at the time. The implication was clear that the plaintiff was the kind of person who breached TML’s Code of Conduct (which requires, amongst other things, that information received during closed meetings not be distributed to anyone unless specifically authorized by Council), and that he was the kind of person who would further breach that Code by improperly dealing with subjects on which he had declared himself to be in conflict of interest. He is one of the owners and is employed by Brent Quarries, a family owned Muskoka business. Although he asserts his personal belief that the defendant’s allegations of misconduct had a significant bearing on his failure to be re-elected to TML Council in 2014, I cannot and do not so find on this record.
[28] Mr. Brent’s position, status and prior reputation are all relevant to assessing the amount of his damage. None of the defences advanced, although failing as complete defences, have elicited any facts justifying a reduction of damages. The mode and extent of publication of the defamation is a factor. A prompt or abject apology will generally reduce damages. There was no apology by this defendant.
[29] I award general damages of $30,000 against the Ruth-Ellen Nishikawa. The general damages I have awarded are more than those that might be expected in an award against a private person whose words would likely attract lesser weight. This plaintiff was in the public eye and attempting to conduct public business. Had I found the defendant’s allegations of misconduct to be a significant cause of his failure to be re-elected to TML Council, the damages awarded would have been higher. Plaintiff’s counsel asks on his behalf that I order the damages to be payable in the plaintiff’s name as a donation to the Township of Muskoka Lakes Nursing Station in Port Carling. I decline. I doubt I have jurisdiction to do so. I have considered the plaintiff’s position and standing, the nature and seriousness of the statements, the mode and the extent of the publication, the defendant’s refusal to retract her libel or even to apologize for it, and her mode of publishing. Ms. Nishikawa’s communication was reprehensible and calls for condemnation. The damages that I have awarded will adequately reflect the degree of damage caused to this plaintiff in these circumstances.
Conclusion
[30] The Rule 20 full appreciation test permits me to make the dispositive findings to grant summary judgment. The impugned words were and are defamatory of Mr. Brent. They were untrue. They remain untrue. They have never been withdrawn. They were published by this defendant to all District Municipality of Muskoka (DMM) councillors, DMM chairs, and to all Township of Muskoka Lakes councillors, the TML mayor, and to Pat Arney. They were not privileged. The defendant knew both at the time of publication and again two days later, and again now, that her written words were untrue. There is demonstrated evidence of her malice. The defence of qualified privilege fails. The defence of fair comment fails. The impugned words are clearly defamatory of Mr. Brent. He did nothing to deserve them.
[31] The plaintiff shall have summary judgment. His motion is granted. There is no genuine issue requiring a trial with respect to the claim or any defence. The defendant’s cross-motion is dismissed.
Costs
[32] If the parties cannot agree on the issue of costs of these motions and of this action they shall, within 10 ten days of the release of these reasons, deliver written submissions of no more than five pages, single-spaced, together with a Bill of Costs. Responding submissions of no more than the same length shall be delivered within a further seven days. Reply materials shall be delivered, if at all, within five days thereafter. All costs materials shall be forwarded to me in care of my assistant, Ms. Howell, at Barrie.
R. MacKinnon J.