CITATION: Veneruzzo et al. v. Storey, 2017 ONSC 683
COURT FILE NO.: CV-15-0342
DATE: 2017-01-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LOUIS VENERUZZO, BRENDA VENERUZZO, JASON VENERUZZO and JENNIFER VENERUZZO
Plaintiffs
- and -
DARRYL STOREY
Defendant
D. Lester, for the Plaintiffs
J. Lester, for the Defendant
HEARD: November 7, 2016, at Thunder Bay, Ontario
Justice D. C. Shaw
Reasons On Motion
Introduction
[1] This is a motion brought by the defendant, Darryl Storey, for an order dismissing the plaintiffs’ action, pursuant to s. 137.1(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[2] The plaintiffs’ action is for damages for defamation, intentional infliction of mental distress and intrusion upon seclusion, arising out of posts that Mr. Storey made on his Facebook account.
Background
[3] Mr. Storey is a former Ontario Provincial Police officer.
[4] On December 3, 2008, Mr. Storey was driving his police vehicle at over 200 kilometres per hour on Highway 11/17. The speed limit on the highway was 90 kilometres per hour. The emergency vehicle lighting and siren were not engaged. Mr. Storey’s vehicle crashed into the side of a vehicle driven by 18 year old Jasmine Veneruzzo which had entered the highway at the intersection with Twin City Crossroads. Accident reconstruction evidence showed that at approximately five seconds before impact, Mr. Storey’s vehicle was travelling approximately 205 kilometres per hour and that at the time of impact the speed of his vehicle was approximately 161 kilometres per hour.
[5] As a result of the collision, Ms. Veneruzzo sustained extreme traumatic blunt force injuries. She was pronounced dead at the scene.
[6] Following an investigation by the Special Investigations Unit, Mr. Storey was charged with criminal negligence causing death, contrary to section 220(b) of the Criminal Code. In September 2012, after eight days of Crown evidence at trial, Mr. Storey entered a plea of guilty to a charge of dangerous driving causing death, contrary to section 249(1)(a) of the Criminal Code. The Crown accepted the plea. The trial judge found Mr. Storey guilty.
[7] In January 2013, the trial judge accepted a joint submission on sentence from the Crown and from counsel for Mr. Storey. Mr. Storey was sentenced to two years imprisonment in a federal penitentiary and was prohibited from driving for five years.
[8] At the sentencing hearing, Mr. Storey, through a statement from his counsel, apologized for the events of December 3, 2008 and expressed his regret at the decision he had made the morning of the collision and the impact upon Ms. Veneruzzo’s family.
[9] In his reasons on sentencing, the trial judge stated that on the evidence before him, Ms. Veneruzzo was “…an innocent and totally blameless… victim.”
[10] The plaintiffs are the immediate family of Ms. Veneruzzo. Louis Veneruzzo is her father. Brenda Veneruzzo is her mother. Jason Veneruzzo is her brother. Jennifer Veneruzzo is her sister.
[11] After Mr. Storey’s criminal conviction, the Veneruzzo family sued him for negligence arising out of the death of Ms. Veneruzzo. The action was settled out of court and was dismissed in November 2015.
[12] Between June 20, 2015 and July 8, 2015, Mr. Storey made a series of online posts on his personal Facebook account regarding the collision and the Veneruzzo family. Mr. Storey deposes that he uses his Facebook account to communicate with his friends and family who are located across Canada and around the world.
[13] The posts included the following:
a) “These cars saved my life on 3 Dec 2008 when I was confronted by a Car that blew a Stop Sign. I retired on 24 Sep 2014 as Disabled. The truth be told...”;
b) “A few months prior to my accident: Const. S. Mason gave the driver of the Car a Ticket for blowing the Stop Sign in front of him at: Twin City Crossroads and Hwy #130. This intersection is one South of where the Car blew the Stop Sign in front of me. Mason was able to avoid a collision on that day. The driver told Mason she was trying to Save her Brakes and Get Better Gas Mileage. On [sic] weird thing Mason told the driver ‘If you keep that up,’ ‘you are going to get killed’”;
c) “A Couple of weeks prior to my accident. The Father of the deceased driver came to work: Angry, and told his co-workers as well as his Supervisor: W. Sustwenko, that: QUOTE ‘if I catch her texting and driving one more time’ ‘I’m taking her car away’ UNQUOTE. In this day and age its been reported that Texting and Driving has surpassed Drinking and Driving as the leading cause of Fatal Motor Vehicle Accidents.”;
d) “The investigation of the accident was hampered because the Event Data Recorder (EDR) had been tampered with and was disconnected on the deceased drivers vehicle. The vehicle was bought second hand. This disconnected EDR meant that Airbag Deployment was inoperative, as well as the drivers seat belt status; braking; and speed was not recorded. This also means that the vehicle was UNSAFE to drive. The Charge of OWNER PERMIT OPERATION OF UNSAFE MOTOR VEHICLE was not layed against the Deceased’s Father.”;
e) “The evening of the Funeral: The OPP were conducting the RIDE PROGRAM. Reduce Impaired Driving Everywhere at the Mapleward Rd Intersection. Const R Michelizzi stopped a vehicle found to have the Next of Kin of the Deceased driver in it. Seems they went drinking after the funeral. They were all intoxicated. Michelizzi arrested the driver and took him for Breath Tests. Brad Mercier boyfriend of the deceased sister was Charged and Convicted. The deceased Mother was called to drive the vehicle passengers home. She started yelling at the OPP Causing a Disturbance. The OPP reasoned with the Next of Kin and the Mother to make their way home without any further Breach of the Peace.. The deceased Father Blogged: ‘It was business as usual for the OPP that day. They blocked the only road out of Thunder Bay to my house. Where’s the respect’ ... Premiere Dalton McGuinty you disrespect my family... (The Family lives on Mud Lake Rd in Murillo: Other routes home from Thunder Bay are Oliver Rd; or Aurthur St... I ask ‘where’s the fact’ IMPAIRED DRIVING; CAUSING DISTURBANCE; BREACH OF THE PEACE”; and
f) “An untruth to People and the Courts was. that Jasmine was a St. Patricks High School Student and on her way to School on 3 Dec 08 when she was killed in the Car Accident at 9:50am.
A more pure version is that Jasmine had already Graduated High School in Jun 08 and she was working at Kentucky Fried Chicken at KFC 2013 Arthur ST E THUNDER BAY 622-7775
Her shift for 3 December started at 10:00am, the store hours on that Wed 11:00am - 9:00pm. She was Late for Work.
St. Patricks High School Principal Mr. F. Veneruz 621 S. Selkirk Street, 623-5218 Confirms that Jasmine was a recent graduate of St. Patrick High School not a current Student.
The Version Jasmines Family have said, at times, ‘she was back at St. Patrick’s, part time, Upgrading.’ ‘Jasmine was trying to get into Nursing.’
NO WAIT, ‘Jasmine was going to become a Pediatrician.’
My Wife Anne who is a Nurse says, you need high marks usually 80s to get
into Nursing.”
[14] Mr. Storey’s Facebook profile privacy settings are set in such a way that his posts were accessible to the public.
[15] Based on the Facebook posts, the plaintiffs brought the within action for defamation, intentional infliction of mental distress and intrusion upon seclusion.
[16] Mr. Storey deposes that during his criminal proceedings and during the civil action for negligence, he was advised by his counsel not to discuss publicly any aspect of the collision. He deposes that notwithstanding the advice of his counsel, in July 2015, after nearly seven years of not speaking publicly about the collision, he chose to finally voice some of his opinions. He states that his posts were a personal expression regarding a matter of significant public interest.
[17] The plaintiffs’ position is that the posts are not matters of public interest.
Discussion
[18] The amendments to the Courts of Justice Act that introduced s. 137.1 arose from a concern over strategic lawsuits, commonly referred to as a SLAPP (Strategic Lawsuit Against Public Participation), a tactic designed to silence critics. The government formed the Anti-Slapp Advisory Panel to report to the Attorney General. The Advisory Panel’s report to the Attorney General stated that “it is desirable for Ontario to enact legislation against the use of legal processes that affect people’s ability or willingness to express views or take actions on matters of public interest.” Section 137.1 allows the courts to use a “fast-track” process to identify and dismiss strategic lawsuits.
[19] The purpose of s. 137.1 is set out in s. 137.1(1):
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.
[20] Section 137.1(3) creates a two part test that must be met by the moving party. The moving party must establish that the proceeding against them arises from an expression they have made that relates to a matter of public interest.
(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
[21] An “expression” is defined in s. 137.1(2) as:
Any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.
[22] A “matter of public interest” is not defined in s. 137.1.
[23] If the moving party satisfies this two part test, the onus then shifts to the responding party to satisfy the test in s. 137.1(4):
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
Expression
[24] It is acknowledged by the plaintiffs that Mr. Storey’s Facebook posts constitute an “expression” within the meaning of s. 137.1(2).
Public Interest
[25] The issue is whether Mr. Storey’s Facebook posts relate to a matter of public interest.
[26] There are three cases that I have reviewed that have considered the meaning of “public interest” in s. 137.1: 1704604 Ontario Ltd. v. Pointes Protection Association et al., 2016 ONSC 2884, a decision of Gareau J.; Able Translations Inc. v. Express International Translation Inc., 2016 ONSC 6785; and Platnick v. Bent, 2016 ONSC 7340 (both decisions of Dunphy J.). In all three cases, the communications in question were held to relate to matters of public interest.
[27] In 1704604 Ontario Ltd., the expression in issue was the testimony that the moving party gave before the Ontario Municipal Board on the environmental impact of a proposed subdivision.
[28] Able Translations Inc. concerned an online blog on the merits of a candidate for office in the 2015 Federal election.
[29] In Platnick, the email communication which gave rise to a libel action was authored by the president-elect of the Ontario Trial Lawyers Association to the Association’s members, who specialize in plaintiff-side representation of accident victims, warning them of the importance of obtaining production of the entire file of claims assessment companies, retained by insurance companies, so that the members could scrutinize expert reports. The email alerted subscribers to an incident that had occurred during the course of the author’s representation of a client in a catastrophic injury claim.
[30] 1704604 Ontario Ltd., Able Translations Inc. and Platnick all drew guidance from the decision of the Supreme Court of Canada in Grant v. Torstar Corp., 2004 SCC 61. Grant concerned a libel action against a newspaper and its reporter after an article was published concerning a proposal for a private golf course development. The court held that the law of defamation should be modified to provide greater protection for communications on matters of public interest. McLachlin C.J., for the court stated, at paras. 101 – 106:
[101] In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole. The defamatory statement should not be scrutinized in isolation. The judge’s role at this point is to determine whether the subject matter of the communication as a whole is one of public interest. If it is, and if the evidence is legally capable of supporting the defence, as I will explain below, the judge should put the case to the jury for the ultimate determination of responsibility.
[102] How is “public interest” in the subject matter established? First, and most fundamentally, the public interest is not synonymous with what interests the public. The public’s appetite for information on a given subject — say, the private lives of well-known people — is not on its own sufficient to render an essentially private matter public for the purposes of defamation law. An individual’s reasonable expectation of privacy must be respected in this determination. Conversely, the fact that much of the public would be less than riveted by a given subject matter does not remove the subject from the public interest. It is enough that some segment of the community would have a genuine interest in receiving information on the subject.
[103] The authorities offer no single “test” for public interest, nor a static list of topics falling within the public interest (see, e.g., Gatley on Libel and Slander (11th ed. 2008), at p. 530). Guidance, however, may be found in the cases on fair comment and s. 2(b) of the Charter.
[104] In London Artists, Ltd. v. Littler, [1969] 2 All E.R. 193 (C.A.), speaking of the defence of fair comment, Lord Denning, M.R., described public interest broadly in terms of matters that may legitimately concern or interest people:
There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment. [p. 198]
[105] To be of public interest, the subject matter “must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”: Brown, vol. 2, at pp. 15-137 and 15-138. The case law on fair comment “is replete with successful fair comment defences on matters ranging from politics to restaurant and book reviews”: Simpson v. Mair, 2004 BCSC 754, 31 B.C.L.R. (4th) 285, at para. 63, per Koenigsberg J. Public interest may be a function of the prominence of the person referred to in the communication, but mere curiosity or prurient interest is not enough. Some segment of the public must have a genuine stake in knowing about the matter published.
[106] Public interest is not confined to publications on government and political matters, as it is in Australia and New Zealand. Nor is it necessary that the plaintiff be a “public figure”, as in the American jurisprudence since Sullivan. Both qualifications cast the public interest too narrowly. The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion and morality. The democratic interest in such wide-ranging public debate must be reflected in the jurisprudence.
[31] In support of his submission that his Facebook posts related to a matter of public interest, Mr. Storey refers to the fact that significant media attention was paid to the collision, to his criminal conviction, to his parole hearing, to the civil action for negligence and to the within action for defamation. Counsel for Mr. Storey characterizes the collision as an event of notoriety and controversy, involving an on-duty police officer, driving at an excessive rate of speed, in which a promising young woman was killed instantly.
[32] In my view, Mr. Storey’s Facebook posts do not relate to a matter of public interest within the meaning of s. 137.1.
[33] What is the subject matter of the publication as a whole?
[34] Mr. Storey’s Facebook posts are concerned with two matters. First, he implies that Ms. Veneruzzo caused or contributed to the collision. He states that on a prior occasion she ran a stop sign at Highway 130 and Twin City Crossroads, that she had previously texted while driving and, on the day in question, that she was late for work. Second, his posts are critical of the Veneruzzo family for misrepresenting Ms. Veneruzzo’s education and career path at the time of the collision and for being intoxicated and belligerent towards police on the evening of Ms. Veneruzzo’s funeral. These two matters do not go beyond Mr. Storey’s own personal interests.
[35] By implying that Ms. Veneruzzo caused or contributed to the collision, Mr. Storey seeks to shift or apportion blame for events for which he admitted responsibility four years ago when he entered a plea of guilty to the criminal act of dangerous driving causing death. There is no public aspect to his desire to blame Ms. Veneruzzo. The posts, for example, are not comments on police policy involving high speed chases or the responsibility of civilian motorists to pull over when there is a high speed chase. No emergency lights were engaged on the police vehicle. No siren was activated. On his plea of guilty, Mr. Storey admitted that on the morning of December 3, 2008, there were no police pursuits or other emergencies involving or requiring police assistance or a response by the Ontario Provincial Police in the Thunder Bay area. This was, in its essence, a motor vehicle accident involving two individuals, one of whom tragically died, and the other of whom pleaded guilty to causing that death by driving dangerously.
[36] The posts which criticize the Veneruzzo family members are highly personal comments about private individuals. The posts are no broader than that. The Veneruzzo’s are not public figures. There are no public interest implications in Mr. Storey’s allegations that family members were intoxicated on the day of Ms. Veneruzzo’s funeral or in his challenges to Ms. Veneruzzo’s education status or career plans.
[37] Although notoriety may well have attached to the collision and to the death of Ms. Veneruzzo and to the ensuing criminal and civil proceedings, these were events which interested the public, not events which were in the public interest. These events did not affect the welfare of the public. Mr. Storey’s posts did not assist the public to better understand and make decisions on issues in which they had a stake. The posts did not extend beyond Mr. Storey’s own interests, to the interests of the community as a whole, or at least to a meaningful segment of the community.
[38] I accept, as noted in Grant, that there is no single test for public interest and that there is no static list of topics falling within public interest. However, it is illustrative to compare the subject matter of Mr. Storey’s posts with the environmental impact of a proposed subdivision in 1704604 Ontario Ltd., a political candidacy in Able Translations and the practices of personal injury assessment companies in Platnick, where all those issues were found to relate to the public interest. Those were matters in which the public demonstrably did have a stake, matters which transcended the interests of the parties involved in the respective actions. Those were matters that fell within the purpose of s. 137.1 of the Courts of Justice Act. Mr. Storey’s posts do not fall within the purpose set out in s. 137.1(1).
[39] Having found that Mr. Storey has failed on the threshold test to establish that his Facebook posts relate to a matter of public interest, the issues in s. 137.1(4) are moot and I will not express an opinion on them. It is neither necessary to do so nor would it be helpful.
Conclusion
[40] For the reasons given, Mr. Storey’s motion to dismiss the plaintiffs’ action pursuant to s. 137.1(3) of the Courts of Justice Act is dismissed.
Costs
[41] If the parties are unable to agree on costs, they shall contact the Trial Co-ordinator within the next 20 days to arrange a date for the issue to be spoken to, failing which, costs of this motion shall be deemed to be resolved.
_____”original signed by”
Regional Senior Justice D. C. Shaw
Released: January 27, 2017
CITATION: Veneruzzo et al. v. Storey, 2017 ONSC 683
COURT FILE NO.: CV-15-0342
DATE: 2017-01-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LOUIS VENERUZZO, BRENDA VENERUZZO, JASON VENERUZZO and JENNIFER VENERUZZO
Plaintiffs
- and -
DARRYL STOREY
Defendant
REASONS ON MOTION
Shaw J.
Released: January 27, 2017
/sab