Court File and Parties
Court File No.: CV-09-392810 Date: 2016-08-31 Ontario Superior Court of Justice
Between: Gregory Eugene Pichler, Plaintiff – and – Mysti Rae Meadows, Defendant
Counsel: Brendan Donovan, for the Plaintiff In Person, for the Defendant
Heard: December 8, 9, 10 and 11, 2015
Before: Stewart, J.
Nature of the Action
[1] Gregory Eugene Pichler (“Pichler”) has brought this action against Mysti Rae Meadows (“Meadows”). Pichler seeks damages as a result of alleged false and defamatory statements about him that are said to have been disseminated, published or republished by Meadows on various websites on the internet.
[2] In addition to general damages, Pichler asks for an award of aggravated, punitive and exemplary damages. He also requests injunctive relief restraining any such future defamation of him by Meadows.
[3] Meadows denies that she defamed Pichler as he alleges, and asserts that all statements he has complained of are true. Although defences of fair comment and qualified privilege are asserted in her Statement of Defence, Meadows’ principal defence at trial was that the statements were true and justified.
[4] Meadows has not amended her Statement of Defence by motion to assert a counterclaim for damages for defamation and harassment against Pichler. Her attempt to do so at trial was opposed by Pichler and was not allowed due to the delay, expense and prejudice to Pichler that the granting of leave to advance a counterclaim at that stage would have caused.
Background
[5] Pichler and Meadows are residents of Toronto.
[6] Pichler is an application developer and computer software writer. He also describes himself as a recognized expert on transsexualism, although he lacks any actual formal medical training or scientific qualifications in that field.
[7] Meadows was born and brought up as a male. She now considers herself to be a well-integrated member of the transsexual community. Although Meadows has not undergone gender reassignment surgery, she lives full time as a woman.
[8] Pichler and Meadows met through mutual friends many years ago. They were on quite amicable terms for a considerable time.
[9] At the time of his initial acquaintance with Meadows, Pichler frequently dressed as a woman and socialized with several mutual acquaintances who identified as transsexual. Pichler often using the name “Joëlle Legassé” for the purpose of his alter persona.
[10] Pichler and Meadows were associated with a community group for transsexual and transgender persons called “Wildside.” In or around 2001, Pichler and Meadows had a falling out over Pichler’s actions to remove what he viewed as inappropriate content posted by Meadows on the Wildside website. Following that, their relationship became acrimonious.
[11] Pichler and Meadows are conversant with and active on electronic forms of communication. Among other online works, Pichler has written and published online a treatise entitled “Acceptable Losses: the Men and Women Who Transgress Gender Norms”. In it, Pichler expressed his view that transsexualism is a behavioural addiction, much like a sex addiction, internet addiction or gambling addiction, caused by a “faulty reward system in the human brain.”
[12] Among the other opinions Pichler has expressed about transsexualism in that online publication and elsewhere is his view that gender reassignment surgery has often been performed based on medical misdiagnosis, without adequate screening procedures and with disastrous effects on the subjects.
[13] In promulgating his various critical views, Pichler has revealed the identities of persons who have chosen to transition into lives as the other gender, or has disclosed personal details of their backgrounds sufficient to reveal their previous identities to the wider community and their families.
[14] Meadows strongly disagrees with Pichler’s opinions on the nature of transsexualism and has taken issue with the methodology employed by him in his research. In particular, Meadows quite reasonably is of the opinion that Pichler’s disclosure of information which reveals previous identities of transsexuals is cruel and wrong.
[15] Meadows blames Pichler for the apparent suicide of a good friend who she alleges was emotionally devastated after having been identified to the community and her family as a result of statements made by Pichler on his website called “transgression.com”.
[16] In 2005, Meadows participated as a plaintiff in litigation commenced against Pichler by that good friend and others, a group of individuals who had been approved by medical professionals to undergo the process to qualify for gender reassessment surgery. Their action on damages for defamation and other relief.
[17] On August 22, 2006, Himel, J. granted interlocutory injunctive relief to the plaintiffs in that action prohibiting Pichler and the other defendants from publishing any materials which may tend to identify the plaintiffs in those proceedings. Himel, J. ordered the Defendants to pay costs of $35,000.00.
[18] The injunctive relief granted by Himel, J. was set aside by the Divisional Court in a 2-1 decision (see: Beidas et al. v. Pichler et al, (2008) 26255 (ON SCDC)). After release of that decision, the action was not pursued by the plaintiffs.
[19] However, after the Divisional Court ruling Meadows began to publish statements about Pichler on her various websites. These statements have prompted these proceedings.
[20] The timing of these statements and their nature make it evident that redress against Pichler was being sought in this manner, after Meadows and the other plaintiffs had not achieved the result they sought in the court action. As Meadows described in her evidence, she wanted to give Pichler “a taste of his own medicine”.
Issues
A. Did Meadows publish and/or disseminate false and defamatory statements about Pichler?
B. If the answer to “A” is “yes”, what are Pichler’s damages?
C. Is Pichler entitled to the injunctive relief he seeks?
Issue A: Did Meadows publish and/or disseminate false and defamatory statements about Pichler?
[21] The statements complained of by Pichler are reproduced in the excerpts and articles attached as Schedule “A”.
[22] Meadows does not deny having written and published these statements.
[23] Meadows admitted in her evidence that the statements appeared on her websites and were accessible to any member of the public who chose to visit them.
[24] Meadows maintained throughout the trial that the statements were true.
[25] Pichler denies that he is currently a transvestite, has engaged in criminal harassment of transsexual women, has a mental disorder, has a criminal record, is violent, caused Meadows’ friend to commit suicide or any of the other statements made about him by Meadows in these publications. He denies that he fits the negative and unsavoury description of him expressed in Meadows’ statements in any way.
[26] In order to succeed in this defamation action, Pichler is required to prove that the impugned words were defamatory (in the sense that they would tend to lower his reputation in the eyes of a reasonable person), that the words in fact referred to him, and that the words were published (meaning that they were communicated to at least one person other than him). If these elements are established on a balance of probabilities, falsity and damage are presumed (see: Grant v. Torstar Corp., 3 S.C.R. 640).
[27] Pichler is not required to show that Meadows intended to do harm, or even that Meadows was careless in making the statements.
[28] In my view, the statements complained of are on their face obviously defamatory, and the elements necessary to demonstrate such defamation have been proven.
[29] Since Pichler has proven these required elements, the onus shifts to Meadows to advance a known defence in order to escape liability. In this case, her defence is her assertion that the statements are true.
[30] Meadows maintained her position as to the truth of her statements throughout the trial, but did not present any clear or cogent evidence or any corroborating witnesses to support her belief. Even if I were to accept some degree of partial truth of some of her statements – that Pichler has sought professional help for mental health issues, has had some past domestic conflict and holds very questionable and controversial opinions – the hyperbole and invective reflected in the language used by Meadows inflate the statements such that her exaggeration becomes a falsehood. Although Meadows may legitimately disagree with Pichler’s views, her statements cross the line into the actionable.
[31] Considering the evidence as a whole, I conclude that Meadows has failed to prove the truth of the statements or to provide justification in law for having published them.
[32] On the evidence before me, any defence of fair comment or qualified privilege has no application to these statements. They go well beyond fair comment and do not meet the requirements for that defence. There were no corresponding duties that would allow qualified privilege to cloak these communications and protect them from action.
[33] Accordingly, I find the statements to be defamatory of Pichler.
Issue B: If the answer to “A” is “yes”, what are Pichler’s damages?
[34] Pichler adduced no evidence of lost income or actual monetary loss. He therefore seeks compensation by way of general damages only.
[35] General damages for defamation are meant to be consolation for the distress suffered from the publication of the defamation, repair of the harm to reputation and a vindication of reputation. Pichler does not need to show an actual financial loss to demonstrate entitlement to such an award.
[36] The factors to consider in determining general damages include Pichler’s position and standing, the nature and seriousness of the defamatory statements, the mode and extent of the publication, the absence or refusal to retract the libel or to apologize for it the conduct and motive of the defendant, and the presence of aggravating or mitigating circumstances (see: Mina Mar Group Inc., v. Divine, 2011 ONSC 1172, [2011] O.J. No. 785 (S.C.J.)).
[37] The factors of the mode and extent of publication can be particularly significant considerations in assessing damages in internet defamation actions. In certain cases, however, the nature of the communication is such that it should not be automatically assumed that it has reached a wide audience. I consider this to be one of those cases.
[38] There is very little evidence as to how many persons actually visited or read any or all of the statements complained of by Pichler. There is no evidence from anyone other than Pichler as to whether and how these statements damaged his reputation in the community. The circulation of the statements is, in all probability, very narrow and confined.
[39] Meadows is retired and living on a fixed income.
[40] The offending statements have since been removed by Meadows. She has indicated that she has no intention of repeating them, although she has not apologized for having made them.
[41] I therefore assess Pichler’s general damages at $5000.00.
[42] In all of the circumstances, including the tangled background to this dispute, I do not consider it to be an appropriate case in which to award any additional amounts for aggravated, punitive or exemplary damages.
Issue C: Is Pichler entitled to the injunctive relief he seeks?
[43] Pichler seeks an injunction to restrain Meadows from publishing any further defamatory statements about him.
[44] Meadows has not engaged in any further impugned conduct for many years and declares that she has no intention of ever doing so. She offered in court to undertake to refrain from any future conduct of this nature if Pichler would do the same.
[45] I do not consider that a blanket prior restraint of Meadows’ right to freedom of expression is now warranted. I therefore decline to grant the injunctive relief sought.
[46] Having said that, it is manifestly clear that both parties would be very wise to refrain from any further negative public statement or any comment whatsoever about the other.
Conclusion
[47] Pichler shall have judgment against Meadows in the amount of $5000.00
Costs
[48] If the subjects of costs and interest on the judgment cannot be agreed upon by the parties, written submissions may be delivered by Pichler within 30 days and by Meadows within 20 days thereafter.
Stewart, J. Released: August 31, 2016