Court File and Parties

COURT FILE NO.: 16-69957 DATE: 20190404 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JOANNE TIBBLES and ROYAL LEPAGE TEAM REALTY BROKERAGE Plaintiffs – and – Craig Gloster Defendant

COUNSEL: John Paul Zubec, Counsel for the Plaintiffs Jeff G. Saikaley, Counsel for the Defendant

HEARD: September 4, 5, 6 and 7, 2018 with further written submissions (Ottawa)

REASONS FOR DECISION

H.J. Williams, J.

Overview

[1] Joanne Tibbles is a real estate agent affiliated with a large Ottawa-area real estate brokerage, Royal LePage Team Realty Brokerage.

[2] Ms. Tibbles and Team Realty are suing Craig Gloster, a federal government employee who was transferred from Toronto to Ottawa in 2016. Mr. Gloster and his wife had retained Ms. Tibbles to assist them to find a home in Ottawa. The retainer had ended abruptly when the Glosters were about to make an offer on a house and Ms. Tibbles and Mr. Gloster disagreed about how Ms. Tibbles’ retainer would be formalized.

[3] Ms. Tibbles is suing Mr. Gloster for defamation.

[4] To succeed in an action for defamation, a plaintiff must prove: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. (Grant v. Torstar Corp., 2009 SCC 61 at para. 28).

[5] If the plaintiff proves the required elements of defamation, the onus then shifts to the defendant to advance a defence in order to escape liability. (Grant, at para. 29).

[6] In the statement of claim, Ms. Tibbles also requested damages for unjust enrichment for the services she provided and Team Realty advanced the unjust enrichment claim in the alternative to Ms. Tibbles’ claim. At trial, the unjust enrichment argument was made on behalf of Team Realty only.

[7] To succeed in an action for unjust enrichment, a plaintiff must prove: (1) that the defendant was enriched; (2) that the plaintiff was correspondingly deprived; and (3) that there is no juristic reason for the enrichment. (Kerr v. Baranow, 2011 SCC 10 at para. 36-45).

A summary of the facts

[8] Mr. Gloster and his wife Christina spent part of Saturday, May 21, 2016 and Sunday, May 22, 2016 with Ms. Tibbles, looking for a home in Ottawa.

[9] The Glosters lived in Toronto. Mr. Gloster was being transferred to Ottawa by his employer, a federal government agency.

[10] The Glosters had been referred to Ms. Tibbles by Mr. Gloster’s cousin, John King, a Toronto-area real estate agent. Mr. King had heard through the real estate agent grapevine that Ms. Tibbles had an excellent reputation.

[11] Ms. Tibbles frequently assisted prospective homebuyers who were being transferred to Ottawa because she was on the list of approved real estate agents of Brookfield Global Relocation Services, a company which provides relocation assistance to organizations including the federal public service.

[12] After an initial telephone conversation on May 10, 2016, Ms. Tibbles gave the Glosters access to an on-line directory that would assist them to search for available homes they might be interested in seeing. On the weekend of May 21 and 22, 2016, Ms. Tibbles showed the Glosters about 10 homes. She discussed Ottawa’s neighbourhoods and real estate market with the Glosters. She made the appointments to see the homes, planned the route they would take to see them, picked up the Glosters at their hotel and acted as their chauffeur. She helped them tour the homes and pointed out positive features and possible concerns. She also recommended Ottawa home inspectors.

[13] The Glosters decided to make an offer on a house they saw on the Sunday afternoon. It was on Fairbanks Ave. in the Alta Vista neighbourhood.

[14] The Glosters met with Ms. Tibbles at her office in Kanata late that afternoon to discuss their offer and to have an agreement of purchase and sale prepared and signed.

[15] The meeting at Ms. Tibbles’ office lasted about an hour and a half.

[16] Because of a technical problem, Ms. Tibbles was unable to print documents from her computer. She suggested to the Glosters that they return to their hotel, that she would send the documents to them by email and that they could then print them, sign them and return them to her.

[17] The Glosters returned to their hotel.

[18] Ms. Tibbles prepared a draft agreement of purchase and sale and emailed it to the Glosters along with three other documents, one of which was a buyer representation agreement.

[19] The buyer representation agreement provided that Ms. Tibbles would be the Glosters’ real estate agent until the end of August, 2016. It applied to single family homes in Ottawa. It provided for a commission of 2.5 per cent of the purchase price of any home.

[20] The Glosters were surprised to receive a buyer representation agreement from Ms. Tibbles. Mr. and Ms. Gloster both testified that in their first conversation with Ms. Tibbles on May 10, 2016, Ms. Tibbles had told them that they would not be required to sign a buyer representation agreement.

[21] I was satisfied, based on the evidence, that the buyer representation agreement was something that mattered to the Glosters. They had not been required to sign a buyer representation agreement on the one previous occasion they had used a real estate agent, which was when they had bought their condominium in Toronto. They testified that the real estate agent they had worked with at that time had told them that he did not believe in buyer representation agreements. He had told them that he believed that his clients should feel free to use real estate agents other than him if they wanted to but that they would be so impressed by him that they would not want to. The Glosters were impressed by their previous agent and his approach. They did not want to be tied down to one agent for their Ottawa purchase and they did not want to commit themselves to Ms. Tibbles for an extended period of time when they did not know her.

[22] In her statement of claim, Ms. Tibbles pleaded that Mr. Gloster had raised the subject of the buyer representation agreement on or about May 10, 2016 and that she had “confirmed that their relationship would eventually be governed by a BRA [buyer representation agreement] and that a BRA would eventually have to be signed.” In her direct examination at the trial, however, when asked whether the topic of a buyer representation agreement had come up during her telephone conversation with Mr. Gloster and his wife on May 10, 2016, Ms. Tibbles said that she could not recall the agreement being discussed. On cross-examination, Ms. Tibbles said that, as far as she could recall, Mr. Gloster did not ask about a buyer representation agreement during the May 10, 2016 conversation. She said that he may have asked about whether he had to sign any paperwork, but he did not mention a buyer representation agreement. When she was shown her statement of claim, she agreed that she probably would have reviewed and approved its contents before it was filed. She said that the reference in the statement of claim to Mr. Gloster having raised the subject of a buyer representation agreement was inaccurate. She said that she did not remember Mr. Gloster mentioning a buyer representation agreement but, if he had asked about what paperwork would have to be signed, she would have said that a buyer representation agreement would have to be signed at the time they submitted an offer. Ms. Tibbles’ evidence that she would have told the Glosters that a buyer representation agreement would need to be signed when they submitted an offer is consistent with what Ms. Tibbles said to the Glosters in an email on May 22, 2016, to which I will refer below.

[23] Ms. Tibbles’ statement of claim was issued in September, 2016, about four months after the conversation with Mr. Gloster and his wife.

[24] The trial was in September, 2018, two years after the statement of claim was issued.

[25] The admission that Mr. Gloster had raised the subject of the buyer representation agreement on or about May 10, 2016 was not withdrawn prior to the trial and Ms. Tibbles’ statement of claim was not amended.

[26] On the basis of the admission in the statement of claim and the evidence of the Glosters on this point, which I accept, I find that Mr. Gloster asked Ms. Tibbles, during the May 10, 2016 telephone conversation, whether a buyer representation agreement would be required. Whatever Ms. Tibbles said to the Glosters that day, the Glosters were both left with the impression that they would not be required to sign a buyer representation agreement if they asked Ms. Tibbles to assist them to find a home to buy in Ottawa.

[27] Ms. Tibbles did not mention a buyer representation agreement when the Glosters were with her at her office for about 90 minutes the afternoon of Sunday, May 22, 2016 or at any time before she sent the buyer representation agreement to them with the agreement of purchase and sale the evening of Sunday, May 22, 2016.

[28] When he received the agreement of purchase and sale, buyer representation agreement and other documents from Ms. Tibbles on Sunday, May 22, 2016, Mr. Gloster responded by sending Ms. Tibbles an email, saying that Ms. Tibbles had previously informed the Glosters that a buyer representation agreement would not be required. Ms. Gloster asked whether anything had changed. If so, he said, they would have to discuss terms.

[29] Ms. Tibbles replied by saying that she had mentioned that she did not usually require an agreement the first day but that, now that the Glosters wanted to make an offer, it would have to be done. She asked if the Glosters had a problem with that. Ms. Tibbles did not address Mr. Gloster’s comment about discussing terms in the event that a buyer representation agreement was necessary.

[30] Without waiting to receive a reply to her previous email, Ms. Tibbles sent a further email to Mr. Gloster, saying that she was not sure that the Glosters were aware that her commission would be paid by the cooperating broker.

[31] Mr. Gloster replied to Ms. Tibbles by repeating that he and his wife had been under the impression that she did not require a buyer representation agreement. Mr. Gloster told Ms. Tibbles that they had not signed one when they bought their first home. Mr. Gloster said that he was not sure why an agreement was necessary, given that, as Ms. Tibbles had pointed out, the seller would pay her commission.

[32] Mr. Gloster asked Ms. Tibbles if she could no longer assist them if they did not sign a buyer representation agreement.

[33] Ms. Tibbles replied by saying “[p]retty much. I cannot represent you or give you any advice.”

[34] Mr. Gloster replied by saying that he was sorry to hear that. He thanked Ms. Tibbles for her time.

[35] Ms. Tibbles replied to Mr. Gloster’s email, saying that she did not understand Mr. Gloster’s reluctance to sign a buyer representation agreement. She wrote: “Do you not think we should get paid for our services?” She wrote that in Ontario every agent is deemed to be working with the seller unless they are under representation with the buyer. She said that she would have thought that the Glosters would want their own representation.

[36] The two emails I referred to were sent at precisely the same time and may have crossed.

[37] Then, apparently in response to Mr. Gloster’s email thanking Ms. Tibbles for her time, Ms. Tibbles wrote: “Are you kidding me? I must say I am shocked as this has never happened to me before and I don’t understand what the problem is. Would [sic] be good enough to explain your rationale because I am quite upset and honestly do not understand. Were you just using me to entertain you for the weekend?”

[38] Mr. Gloster wrote back to Ms. Tibbles and said that he and his wife had been a little surprised to receive the buyer representation agreement because neither the necessity for a buyer representation agreement nor the proposed terms of such an agreement had been discussed with them. Mr. Gloster said that Ms. Tibbles could not expect someone to sign something when the terms had not been discussed. Mr. Gloster added that he and his wife believed that they had been working in good faith and that Ms. Tibbles would be remunerated accordingly.

[39] The next morning, Ms. Tibbles emailed Mr. Gloster, saying that it was unfortunate that they had not had an opportunity to discuss the matter face to face, but that she had a feeling “there is something else going on.” She said that she felt that she had been acting professionally and in good faith and that the Glosters had pulled the rug out from under her.

[40] Ms. Tibbles testified that she had been “devastated” and “blown away” by the Glosters’ refusal to sign the buyer representation agreement. She said that she and her husband had planned to go to Vermont that weekend, which had been the May long weekend, but had cancelled the trip in order to accommodate the Glosters.

[41] Ms. Tibbles said that the Glosters’ refusal to sign the buyer representation agreement did not make sense because the Glosters would not be paying her commission; it would be paid by the real estate brokerage representing the seller. Ms. Tibbles said that she had a gut feeling that something was not right. She suspected that Mr. Gloster intended to approach the seller of the house on Fairbanks Ave. directly.

[42] After her relationship with the Glosters ended, Ms. Tibbles told several people what had happened, including Mr. King, the real estate agent who had referred the Glosters to her, and the seller of the house on Fairbanks Ave., who also happened to be a real estate agent.

[43] Ms. Tibbles emailed Mr. King and told him that the Glosters had refused to sign the buyer representation agreement, even though the commission was being paid by the cooperating broker. Ms. Tibbles told Mr. King that she was shocked and disappointed. She said that she had spent most of her weekend with the Glosters and felt that she had had the rug pulled out from under her.

[44] Ms. Tibbles testified that when she returned to her office on Tuesday, she told her manager, Ms. Harper, that she felt that she had been used and that she felt like sending the Glosters a bill for her services. She said that Ms. Harper told her that she would support Ms. Tibbles if that was what she decided to do.

[45] On May 24, 2016, Ms. Tibbles replied to an email from the seller of the Fairbanks Ave. house who had wanted to know how the showing went. Ms. Tibbles told the seller that the buyer had refused to sign the buyer representation agreement and had thanked her for her time. Ms. Tibbles told the seller that she suspected that the buyer would approach the seller directly in the hope of saving some money, knowing that he would not be required to pay the buyer’s representative’s 2.5 per cent commission if he bought the house directly. Ms. Tibbles told the seller that the buyer’s name was Gloster and said that she hoped the seller would sell the house to someone else.

[46] On May 25, 2016, Mr. King wrote to Ms. Tibbles and said that he had spoken with Mr. Gloster and that Mr. Gloster had told him that there had been a number of difficulties during the time they had spent with Ms. Tibbles but that the biggest problem was with respect to the buyer representation agreement. Mr. King said that Mr. Gloster had told him that he had not been prepared to sign an agreement that committed him for three months and that the three-month contract had been non-negotiable in Ms. Tibbles’ eyes.

[47] Ms. Tibbles replied to Mr. King by saying, “Well I’m afraid he’s lying to you. I have the correspondence if you would like to see it. However it’s a moot point now. I would not work with him. He’s an ass hole.”

[48] Mr. King replied by saying, “[t]hat’s nice.”

[49] Later that evening, Ms. Tibbles sent a further email to Mr. King, asking him to take what Mr. Gloster said with a grain of salt. Ms. Tibbles also told Mr. King that she had told the building inspectors whose names she had given to Mr. Gloster to “run like hell” if Mr. Gloster contacted them.

[50] On May 26, 2016, Ms. Tibbles sent the Glosters an invoice for $1,559.00, representing her calculation of the value of the time she had spent showing them houses on the weekend.

[51] Ms. Tibbles said that she had never sent an invoice like that before. She said she sent it because she felt that the Glosters had taken advantage of her.

[52] Mr. Gloster’s response to the invoice was his letter of June 3, 2016.

The issues

The issues in this case are the following:

1. Are the words in Mr. Gloster’s letter of June 3, 2016 defamatory?
2. Do the words refer to Ms. Tibbles?
3. Were the words published?
4. If the answer to questions 1, 2 and 3 is yes, are the words protected by a qualified privilege?
5. If the answer to questions 1, 2 and 3 is yes, are the words protected by the defence of fair comment?
6. If the answer to questions 1, 2 and 3 is yes and the answer to both questions 4 and 5 is no, has Ms. Tibbles suffered damages and if so, what is the proper award of damages for defamation?
7. Is Team Realty entitled to damages for unjust enrichment as a result of the work performed by Ms. Tibbles for Mr. Gloster and his wife?

Issue #1: Are the words in Mr. Gloster’s letter of June 3, 2016 defamatory?

[53] Mr. Gloster’s letter of June 3, 2016 was addressed to Ken Browne, the owner of Team Realty and Rita Harper, Ms. Tibbles’ manager at Team Realty.

[54] I have attached to these reasons a copy of the June 3, 2016 letter on which Ms. Tibbles and/or her lawyer has/have underlined the passages Ms. Tibbles considers to be defamatory. (Note that the words “no later than June 15, 2016” in the first paragraph and “never discussed” in the fifth paragraph were underlined in the original letter and not by Ms. Tibbles and/or her lawyer. At the conclusion of the letter, Ms. Tibbles and/or her lawyer has/have underlined the names of the three organizations and one individual listed as recipients of copies of the letter. I infer that these names were underlined because they were considered to be relevant to the issue of publication of the letter and not because Ms. Tibbles considered them to be defamatory.)

[55] Reproduced below are the passages Ms. Tibbles considers to be defamatory:

Passage #1:

This further exemplifies the deplorable level of customer service Joanne Tibbles provides and her utter lack of professionalism. In light of your actions I will be filing complaints with RECO (Note: registrant’s invoicing address differs from her RECO registration), the Better Business Bureau of Easter (sic) and Northern Ontario and the Outaouais, and Brookfield Relocation Services (Approved 3 rd Party Supplier Rep ID 0020035827.)

Passage #2:

As a result of Joanne Tibbles’ lack of professionalism and specifically her refusal to take instruction to correct her mistake on a draft Agreement of Purchase and Sale (i.e. her inclusion of seller’s explicit exclusion “auto-robot pool cleaner”) we were unable to submit a timely bid on our first choice of new home.

Passage #3:

It is unconscionable that a registrant would lie in the weeds for weeks, waiting until a prospective buyer finds the home of their dreams, only to spring upon them a BRA stipulating highly restrictive terms (i.e. any purchase, anywhere in the geographic location of Ottawa, for a period of greater than three (3) months), refuse to discuss the terms of such an agreement, and refuse to submit an offer of purchase without the prospective buyer’s signed BRA. Such oppressive business practices are both abusive and unethical.

Passage #4:

Furthermore, the extortionist rate of $153.33/hr contained in your erroneous invoice, merely to show properties we found , reflects a gross deceit on your part to lure the public into dealings not in good faith, but rather for totally unreasonable and underhanded financial benefit.

Passage #5:

In my view Joanne Tibbles is not fit to sell real property in the province of Ontario and her actions warrant serious sanction in order to protect the public from her coercive business practices.

Innuendo

[56] Mr. Gloster argued that, in determining whether his letter was defamatory of Ms. Tibbles, the court may consider only the plain and ordinary meaning of the words in the letter and may not also consider innuendo, which would rely on extrinsic evidence for their defamatory meaning. Mr. Gloster argued that an innuendo and the facts relied upon in support of its meaning must be pleaded and that Ms. Tibbles did not do this.

[57] Mr. Gloster argued that, although Ms. Tibbles pleaded in her statement of claim that his letter stated that she was “fraudulent”, that she was “deceitful” and that she “engaged in extortion”, his letter either did not use these words or did not use them in relation to Ms. Tibbles.

[58] Ms. Tibbles argued that the courts have adopted a somewhat more flexible approach to pleadings in defamation cases in recent years. She also argued that, in her statement of claim, she clearly set out the interpretation she placed on the words in Mr. Gloster’s letter and that Mr. Gloster cannot claim to have been taken by surprise.

[59] In her statement of claim, Ms. Tibbles reproduced, verbatim, the content of the five passages from Mr. Gloster’s letter I reproduced above. (In fact, her statement of claim reproduced four passages and, for reasons to which I will refer below, I separated her fourth passage into two separate passages.)

[60] Ms. Tibbles pleaded that she was relying on the “plain and ordinary meaning” of the statements in Mr. Gloster’s letter. Ms. Tibbles did not plead innuendo or that in addition or in the alternative to the “plain and ordinary meaning” of the statements in Mr. Gloster’s letter, they should be interpreted in some other manner.

[61] Any recent shift toward more flexible pleadings in defamation cases cannot have been so significant as to permit a plaintiff who specifically pleads that a defendant’s words should be interpreted in accordance with their plain and ordinary meaning also to argue that they should be interpreted in some other way without, at a minimum, pleading the alternative interpretation and the material facts being relied upon in support of the alternative interpretation.

[62] I agree with Mr. Gloster that, in his letter, he did not state that Ms. Tibbles was “fraudulent” or “deceitful” or that Ms. Tibbles “engaged in extortion”. Ms. Tibbles pleaded that she was relying on the plain and ordinary meaning of the words in Mr. Gloster’s letter. She did not plead that the words in the letter should be interpreted in any manner other than in accordance with their plain and ordinary meaning. None of the words in the letter was a synonym for “fraudulent” or “deceitful” or “engag[ing] in extortion”. Consequently, I conclude that Mr. Gloster’s letter cannot be interpreted to mean that Ms. Tibbles was “fraudulent” or “deceitful” or that she had “engaged in extortion.”

[63] Ms. Tibbles has, however, properly set out in her statement of claim the specific portions of Mr. Gloster’s letter which she alleges are defamatory of her, which I have reproduced as Passages #1 to #5, above. I will, therefore, consider the plain and ordinary meaning of the words in each of these portions of Mr. Gloster’s letter and whether they would tend to lower Ms. Tibbles’ reputation in the eyes of a reasonable person.

Would the words in Passages #1 to #5 tend to lower Ms. Tibbles’ reputation in the eyes of a reasonable person?

[64] I find that the following words would tend to lower Ms. Tibbles’ reputation in the eyes of a reasonable person:

• The words in Passage #1, which state that Ms. Tibbles provides a “deplorable level of customer service” and that Ms. Tibbles has an “utter lack of professionalism”.
• The words in Passage #2, which refer to “Joanne Tibbles’ lack of professionalism” and which state that Ms. Tibbles refused “to take instruction to correct her mistake” which caused her clients to be “unable to submit a timely bid” on their first choice of new home.
• The words in Passage #3, which state that a registrant, obviously referring to Ms. Tibbles, would “lie in the weeds for weeks, waiting until a prospective buyer finds the home of their dreams, only to spring upon them a BRA stipulating highly restrictive terms (i.e. any purchase, anywhere in the geographic location of Ottawa, for a period of greater than three (3) months), refuse to discuss the terms of such an agreement, and refuse to submit an offer of purchase without the prospective buyer’s signed BRA.” Also the following words in Passage #3: “Such oppressive business practices are both abusive and unethical.”
• The words in Passage #4, which refer to an “extortionist rate” in the invoice, “gross deceit” and “totally unreasonable and underhanded financial benefit”. Although Mr. Gloster’s letter does not identify Ms. Tibbles as having prepared or otherwise having been responsible for the invoice, the second paragraph (as distinct from Passage #2) of his letter connects the invoice to Ms. Tibbles by stating that the invoice “exemplifies the deplorable level of customer service Joanne Tibbles provides and her utter lack of professionalism.” Further, Passage #4 and Passage #5, to which I refer below, are consecutive passages in the same paragraph of Mr. Gloster’s letter. Although it does not refer to Ms. Tibbles, I find that for these reasons, Passage #4 would nonetheless tend to lower her reputation in the eyes of a reasonable person.
• The words in Passage #5, “In my view Joanne Tibbles is not fit to sell real property in the province of Ontario and her actions warrant serious sanction in order to protect the public from her coercive business practices.”

Issue #2: Do the defamatory words refer to Ms. Tibbles?

[65] I find that the words I have identified in Passages #1, #2, #3 and #5 which would tend to lower Ms. Tibbles’ reputation in the eyes of a reasonable person refer to Ms. Tibbles.

[66] I find that the words in Passage #4 do not refer to Ms. Tibbles; they refer either to Mr. Browne and Ms. Harper, to whose attention Mr. Gloster’s letter was written, or to Team Realty. (I divided Passage #4 into two passages, Passage #4 and Passage #5, in order to be able distinguish easily between the portion which refers to Ms. Tibbles and the portion which does not.)

Issue #3: Were the words published?

[67] Mr. Gloster’s June 3, 2016 letter was addressed to Team Realty and sent to the attention of Mr. Browne and Ms. Harper.

[68] The parties agree that Mr. Gloster sent, and therefore “published” the letter to three individuals other than Ms. Tibbles:

1. Mr. Browne;
2. Ms. Harper; and
3. Mr. King.

[69] Although the parties agreed Mr. Gloster published his letter, they disagreed about the extent to which Mr. Gloster was responsible for the publication or republication of the letter to organizations or individuals other than Mr. Browne, Ms. Harper and Mr. King. [1]

[70] At the conclusion of the letter, below Mr. Gloster’s signature, was a list of three organizations and one individual: the Real Estate Council of Ontario; the Better Business Bureau of Easter (sic) and Northern Ontario and the Outaouais; Brookfield Global Relocation Services and Mr. King. The letters “Cc:” appeared before each of the four entries on the list, suggesting that copies of the letter had been sent to them.

[71] Although Mr. Gloster sent a copy of the letter to Mr. King, he did not send a copy to RECO, the Better Business Bureau or Brookfield. Mr. Gloster said that he had intended to do so but that he decided to wait until he had seen how Team Realty responded to the letter. He said that when the brokerage cancelled the invoice, he decided not to distribute the remaining copies. He said he shredded them.

[72] Although Mr. Gloster did not send a copy of his letter to RECO, the Better Business Bureau or Brookfield, his comments about Ms. Tibbles were brought to the attention of all three organizations when, on August 3, 2016, Ms. Tibbles’ lawyer wrote a detailed letter to Mr. Gloster and his wife which set out Ms. Tibbles’ response to the comments in Mr. Gloster’s letter, requested a retraction and suggested that it might be possible to resolve the matter if Mr. Gloster were to pay the Team Realty invoice and contribute to Ms. Tibbles’ legal fees. On the assumption that Mr. Gloster had sent copies of his letter to everyone who appeared to have been “Cc’d”, copies of Ms. Tibbles’ lawyer’s letter were sent not only to Mr. Browne, Ms. Harper and Mr. King but also to RECO, the Better Business Bureau and Brookfield.

[73] Ms. Tibbles argued that although her lawyer, and not Mr. Gloster, had brought Mr. Gloster’s comments about her to the attention of RECO, the Better Business Bureau and Brookfield, Mr. Gloster was nonetheless responsible for what she characterized as this “republication” of his defamatory statements.

[74] The general rule is that a person is responsible only for his or her own publication of defamatory statements and not for their repetition by others. However, Ms. Tibbles argued that Mr. Gloster is liable for the republications to RECO, the Better Business Bureau and Brookfield because it was a “natural and probable consequence” [2] of Mr. Gloster’s decision to write his June 3, 2016 letter that the statements in the letter would come to the attention of the three organizations.

[75] Mr. Gloster denied responsibility for the publication of the statements in his letter to anyone other than the three individuals to whom he sent the letter and argued that he cannot be liable for any other publication and particularly any publication for which Ms. Tibbles was in fact responsible.

[76] I do not accept Ms. Tibbles’ argument that her lawyer’s publication of Mr. Gloster’s comments about her was a “natural and probable consequence” of Mr. Gloster’s letter. Even if Ms. Tibbles’ decision to retain a lawyer to request a retraction and propose a settlement was a “natural and probable consequence of the letter” (and I am not making such a finding), I find that the decision to send the lawyer’s letter to everyone who appeared to have received Mr. Gloster’s letter was not. My conclusion in this regard is not intended to question or criticize the strategic decision of Ms. Tibbles and/or her lawyer to send a copy of the lawyer’s letter to all of the apparent recipients of Mr. Gloster’s letter. However, having chosen that strategy, Ms. Tibbles cannot blame Mr. Gloster when the strategy resulted in the first-time publication of his comments to these organizations which were not previously aware of them.

[77] In order for a defendant to be liable for a plaintiff’s publication of defamatory statements, the plaintiff must show either that the plaintiff repeated the statements because of “necessity or compulsion” or that the plaintiff was under a duty to repeat the statements. (McNabb v. Equifax Canada Inc., 143 Man. R. (2d) 72 (Q.B.)) I find that there was no necessity or compulsion for Ms. Tibbles to repeat Mr. Gloster’s comments about her to RECO, the Better Business Bureau or Brookfield and that she had no duty to do so.

[78] Ms. Tibbles argued that Mr. Gloster’s letter was also republished to Randy Oikle, a lawyer who was, at the time, in management at Team Realty, to Karen Gerrard, who was the compliance officer at the brokerage Mr. King was affiliated with and then to RECO, by Mr. King.

[79] I agree that Mr. Oikle and Ms. Gerrard both saw Mr. Gloster’s letter and that Mr. King sent a copy to RECO.

[80] Mr. Browne and Ms. Tibbles both communicated with Mr. Oikle about Mr. Gloster’s letter in Mr. Oikle’s capacity as a lawyer. Mr. Browne testified that he provided Mr. Oikle with a copy of the letter because Mr. Oikle was general counsel to Team Realty. Ms. Tibbles sought legal advice from Mr. Oikle in relation to the letter. In an email to Mr. Browne dated June 10, 2016, Ms. Tibbles suggested that they ask Mr. Oikle if, referring to the Glosters, she could “go after them for defamation of character.” On June 29, 2016, Ms. Tibbles forwarded documents to Mr. Oikle by email and said that she would like Mr. Gloster to send a written retraction and was requesting insight or guidance.

[81] Mr. King said that he provided Ms. Gerrard with a copy of Mr. Gloster’s letter after Ms. Tibbles made a complaint about him to RECO. Mr. Gloster’s letter was included with Mr. King’s response to RECO, which was prepared by Ms. Gerrard. Mr. King acknowledged that Mr. Gloster had asked him not to provide RECO with a copy of his June 3, 2016 letter.

[82] To summarize:

• Mr. Gloster published his June 3, 2016 letter to Mr. Browne, Ms. Harper and Mr. King.
• Mr. Browne and Ms. Tibbles republished Mr. Gloster’s letter to Mr. Oikle because of Mr. Oikle’s role as general counsel to Team Realty and for purposes of seeking legal advice.
• Ms. Tibbles, through her lawyer, published Mr. Gloster’s letter to RECO, the Better Business Bureau and Brookfield.
• Mr. King republished Mr. Gloster’s letter to Ms. Gerrard after Ms. Tibbles complained about him to RECO.

[83] Of these publications and republications, I find that Mr. Gloster is responsible for publishing the letter to Mr. Browne, Ms. Harper and Mr. King.

[84] Mr. Gloster is arguably responsible for the republication of the letter by Mr. Browne to Mr. Oikle on the basis that providing the letter to Team Realty’s general counsel would be a “natural and probable consequence” of the letter. However, both Mr. Browne and Ms. Tibbles requested legal advice from Mr. Oikle in respect of the letter and, in that sense, the provision of the letter to Mr. Oikle is no more a republication than the provision of the letter to Ms. Tibbles’ trial lawyer would be.

[85] I find that Mr. Gloster is not responsible for publishing the letter to RECO, the Better Business Bureau and Brookfield; Ms. Tibbles is responsible for the publication of the letter to these organizations.

[86] I find that Mr. Gloster is not responsible for the republication of the letter to Ms. Gerrard; Mr. King provided Ms. Gerrard with the letter not as a “natural and probable consequence” of the letter but because Ms. Tibbles had complained about him to RECO and Ms. Gerrard was the compliance officer for Mr. King’s brokerage. Similarly, the only reason that RECO received a copy of Mr. Gloster’s letter from Mr. King was that Ms. Tibbles had complained to RECO about Mr. King; Mr. King did not provide Mr. Gloster’s letter to RECO as a “natural and probable consequence” of the letter but because of Ms. Tibbles’ complaint.

Issue # 4: Are the words protected by a qualified privilege?

[87] One of the two defences raised by Mr. Gloster to Ms. Tibbles’ action for defamation is qualified privilege.

[88] Qualified privilege is available on an occasion “where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.” (Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130 at para. 143, citing Adam v. Ward, [1917] A.C. 309 (H.L.))

[89] The interest or duty may be public or private and may involve the conduct of the person’s own affairs where his or her interest is concerned. (Toogood v. Sprying (1834), 1 Cr. M. & R. 181 (Eng. Exch.) at 193.)

[90] When the defence of qualified privilege is raised, the “occasion”, or the context, in which the defamatory statement was published is the relevant consideration; qualified privilege attaches to the occasion upon which the communication is made and not the communication itself. (Hill, supra, at para. 146).

[91] The defence of qualified privilege rebuts the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. However, qualified privilege is not absolute and can be lost if the dominant motive (emphasis added) for publishing the words is determined to be actual or express malice. (Hill, at para. 144).

[92] Mr. Gloster argued that his letter of June 3, 2016 was written and published on an occasion of qualified privilege because he had an interest both in not being required to pay the Team Realty invoice and in alerting the brokerage to Ms. Tibbles’ conduct, which he considered to be unprofessional. Mr. Gloster argued that Team Realty had a corresponding interest in being informed of and dealing with his complaints, both in respect of the invoice and Ms. Tibbles’ conduct.

[93] Ms. Tibbles argued that the defence of qualified privilege is not available to Mr. Gloster because Mr. Gloster was not motivated by any interest or sense of duty; Ms. Tibbles argued that Mr. Gloster was simply angry about her invoice and did not want to pay it. Ms. Tibbles also argued that Mr. Gloster was motivated by malice in that, in his letter, he was dishonest and/or reckless with the truth. Ms. Tibbles also argued that there was no reason for Mr. Gloster to have sent a copy of the letter to Mr. Browne or Mr. King or for RECO, the Better Business Bureau or Brookfield to have been involved; she said that the letter was more widely distributed than it needed to be to satisfy the interests Mr. Gloster claimed to have had in sending it.

[94] Mr. Gloster argued that the comments in his letter were appropriately limited to his impressions of the quality of the professional services provided by Ms. Tibbles. He argued that his letter was properly sent to both the owner of the brokerage where Ms. Tibbles worked, Mr. Browne, and Ms. Tibbles’ manager, Ms. Harper, because both had an interest in receiving his complaints about the invoice and about Ms. Tibbles. Mr. Gloster argued that a copy of the letter was properly sent to Mr. King because Mr. King also had an interest in the invoice; Mr. King’s name appeared on the invoice and he had emailed the brokerage to ask that his name be removed.

[95] Mr. Gloster also argued that Ms. Tibbles cannot rely on malice to defeat his qualified privilege defence, because of a deficiency in her pleadings.

Was Mr. Gloster’s letter sent on an occasion of qualified privilege?

[96] For the reasons below, I find that Mr. Gloster’s letter of June 3, 2016 was written on an occasion of qualified privilege:

(1) I find that, when he wrote his letter, Mr. Gloster’s primary motivation was to ensure that he was not required to pay Ms. Tibbles’ invoice. He had not been asked to pay Ms. Tibbles for her time; his understanding, which had been confirmed by Ms. Tibbles, was that she would be compensated if and when the Glosters bought a home and that, at that time, her commission would be paid by the seller of the home. Mr. Gloster also felt that he had received no value from the services Ms. Tibbles provided; because of the disagreement over the buyer representation agreement, Ms. Tibbles had not submitted an offer on the house on Fairbanks Ave. the Glosters had hoped to buy. Mr. Gloster also wanted Ms. Tibbles’ conduct to be brought to the attention of her brokerage, but I find that this interest was secondary to his interest in seeing her invoice cancelled;

(2) I find that Team Realty had a reciprocal interest in receiving Mr. Gloster’s letter, in dealing with his objection to its invoice, one way or another, and in being informed about his dissatisfaction with Ms. Tibbles’ services. Team Realty’s name and address appeared on the invoice and the invoice stated that the recipient’s cheque should be payable to the brokerage. I find that a business such as Team Realty would have an interest in being informed if one of its invoices is not going to be paid and in learning the reasons for the non-payment. I also find that a business such as Team Realty would want to know if a client has complaints about the services provided by one of its agents and particularly so in a case such as this, in which the client was threatening to file complaints with RECO, the Better Business Bureau and Brookfield, which was a source of referrals.

Was “express” or “actual” malice properly pleaded?

[97] As I stated previously, Mr. Gloster argued that Ms. Tibbles cannot raise malice to defeat his qualified privilege defence because she did not properly plead malice.

[98] As I also stated previously, qualified privilege rebuts the inference, which normally arises from the publication of defamatory words, that the words were spoken with malice but qualified privilege is not absolute and can be lost if the dominant motive for publishing the words is determined to be actual or express malice.

[99] The malice which normally arises from the publication of defamatory words and which can be rebutted by qualified privilege is different from the “express” or “actual” malice which must be proved by a party seeking to defeat the qualified privilege defence. (Taylor v. Despard, [1956] O.R. 963 (C.A.))

[100] The plea of malice intended to defeat qualified privilege should be set out in a reply pleading. It is not sufficient, for this purpose, simply to plead in the statement of claim that the defamatory statements were published “falsely and maliciously.” Such a plea should not be stated generally; particular material facts relied upon in support of the plea should be included. (Peter A. Downard (contributor), Halsbury’s Laws of Canada – Defamation (2018 Reissue), HDE -128.)

[101] Rule 25.06(8) of the Rules of Civil Procedure specifically requires a pleading in which malice is alleged to contain “full particulars.”

[102] Ms. Tibbles properly served a reply in which, in paragraph 2, she denied that Mr. Gloster’s defamatory statements were published on an occasion of qualified privilege:

2. The Plaintiff, Joanne Tibbles, denies that the words complained of were published in an occasion of qualified privilege, or that said words were published in good faith or with the honest belief that they were fair and accurate. The plaintiffs state that the words complained of were published maliciously by the Defendant out of self-interest and the context of his attempt to avoid paying for services received.

[103] Pleadings in a defamation action are considered to be more important than in any other class of action. (Paquette v. Cruji (1979), 26 O.R. (2d) 294 (SC) at p. 296, citing Odgers Digest of the Law of Libel and Slander, 6 th ed. (1929) at p. 504.) That said, and although paragraph 2 of Ms. Tibbles’ reply lacks the degree of detail contemplated by Rule 25.06(8) and Halsbury’s Laws of Canada, I am satisfied that in these circumstances the wording of Ms. Tibbles’ reply is sufficient to permit her to allege malice on the part of Mr. Gloster of the nature that could negate a qualified privilege defence.

[104] I have come to this conclusion because paragraph 2 of Ms. Tibbles’ reply responds directly to Mr. Gloster’s plea of qualified privilege, denies that the defence applies and states that Mr. Gloster’s words were published maliciously. Although neither the words “express malice” nor “actual malice” appear in Ms. Tibbles’ reply, it is evident from the context that in paragraph 2 of the reply, Ms. Tibbles is referring to the type of malice that can defeat qualified privilege, which is “express” or “actual” malice. Read somewhat generously, paragraph 2 of the reply also states that Mr. Gloster’s words were not published in good faith, that Mr. Gloster did not honestly believe that the words were fair and accurate, that Mr. Gloster was motivated to be malicious by self-interest and his efforts to dodge Ms. Tibbles’ invoice.

[105] Mr. Gloster cannot say that he was prejudiced by the lack of particulars of the malice plea in Ms. Tibbles’ reply. A reply does not require or even allow for a further pleading. Mr. Gloster did not require additional particulars in order to formulate and commit himself to a response. While not in a textbook manner, Ms. Tibbles’ reply raised as an issue that Mr. Gloster’s qualified privilege defence was defeated by malice. Mr. Gloster was on notice of Ms. Tibbles’ position and could have demanded particulars either prior to or at the examinations for discovery in the case.

[106] In these circumstances, I reject the argument raised by Mr. Gloster at the conclusion of the trial that, because of the lack of particulars in her reply, Ms. Tibbles was not entitled to argue that his qualified privilege defence was defeated by express or actual malice.

Was Mr. Gloster’s qualified privilege defence defeated by malice?

[107] In arguing that Mr. Gloster is not entitled to rely on the defence of qualified privilege because he was motivated by malice, Ms. Tibbles relied on para. 145 of the Supreme Court of Canada’s decision in Hill:

Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes…”any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created…Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth.

[108] A defendant may be found to have been motivated by express malice if he or she publishes a defamatory statement: (1) knowing it is false; (2) with reckless indifference to whether it is true or false; (3) for the dominant purpose of injuring the plaintiff because of spite or animosity; or (4) for some other dominant purpose which is improper or direct, or also, if the occasion is privileged, for a dominant purpose not related to the occasion. (DDI Diamonds Direct Inc. v. Raney, 2006 BCSC 952 at para. 46 citing Roger McConchie, Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004) at p. 299.)

[109] Ms. Tibbles argued that Mr. Gloster acted maliciously because certain statements in his letter were made dishonestly or with reckless disregard as to whether they were true.

[110] I agree with Ms. Tibbles in respect of two statements in Mr. Gloster’s letter:

• Mr. Gloster stated in his letter that Ms. Tibbles had refused to take instructions to correct a mistake she had made in the draft agreement of purchase and sale and that, as a result, Mr. Gloster and his wife were unable to submit a timely bid on the house they had chosen. The mistake identified by Mr. Gloster was Ms. Tibbles’ inclusion of an automated swimming pool cleaner the sellers of the house had indicated was excluded.

  Ms. Tibbles did not consider her inclusion of the pool cleaner to be a mistake. She said that she had intentionally, for negotiation purposes, listed the cleaner as an inclusion. I accept Ms. Tibbles’ evidence that she had never refused to take instructions to correct a mistake. When Mr. Gloster drew the issue to her attention, she told him that she had included the pool cleaner intentionally and she had expected them to discuss the issue further. They did not then discuss issue because their relationship broke down over the buyer representation agreement.

  Although the relationship between Ms. Tibbles and Mr. Gloster broke down and Ms. Tibbles did not submit an offer to purchase the house on Fairbanks, it was not true that Mr. Gloster and his wife were unable to submit a timely bid because Ms. Tibbles had refused to take instructions in respect to the pool cleaner.

  I find that Mr. Gloster knew the reason the offer to purchase the house on Fairbanks Ave. was not submitted and knew that it was not because of the inclusion of the pool cleaner. I find that the statement in his letter that Ms. Tibbles had refused to correct a mistake relating to the pool cleaner and that, as a result, he and his wife had been unable to submit a timely bid on a house was not true and was intended to reflect poorly on Ms. Tibbles.

  I note that although Mr. Gloster referred to the inclusion of the pool cleaner in his statement of defence and pleaded that he had indicated that it was an error that would have to be corrected, he did not plead that Ms. Tibbles had refused to take an instruction from him to correct it or that he and his wife had been unable to make a timely offer on the Fairbanks Ave. home as a result.

• Mr. Gloster also stated in his letter that Ms. Tibbles had refused to discuss the terms of the buyer representation agreement. This was not the case. Mr. Gloster had said to Ms. Tibbles in an email that terms would need to be discussed. Ms. Tibbles did not respond to the reference to discussing terms but did not refuse to discuss terms.

  I find that while it was true that terms of the buyer representation agreement were not discussed, it was not true that Ms. Tibbles had “refused” to discuss terms.

  I find that Mr. Gloster either knew that it was not true that Ms. Tibbles had refused to discuss terms of the buyer representation agreement or that he acted with reckless disregard for the truth when he included that phrase in his letter. I find that the statement was intended to reflect poorly on Ms. Tibbles.

  I note that in his statement of defence, Mr. Gloster did not plead that Ms. Tibbles had refused to discuss the terms of the buyer representation agreement. He pleaded that she had not demonstrated any interest in amending the terms of the agreement.

[111] As I noted above in reference to an excerpt from Hill, at para. 144, a plaintiff must show that malice is the dominant purpose of the communication if the defence of qualified privilege is to be defeated.

[112] While I have found that, in his letter, Mr. Gloster made two untrue statements either knowingly or while recklessly disregarding the truth, and while these findings are sufficient to establish malice on the part of Mr. Gloster, I do not find that malice was the dominant purpose of Mr. Gloster’s June 3, 2016 letter.

[113] I find that the dominant purpose of Mr. Gloster’s letter was not spite or ill will toward Ms. Tibbles; it was to avoid paying her invoice. I make this finding for three reasons: (1) Mr. Gloster’s evidence, which I accept, was that once Ms. Tibbles cancelled her invoice, and until he received the August 3, 2016 letter from her lawyer, he considered the matter to be closed; he had achieved the goal of his letter; (2) Although Mr. Gloster said in his letter that he was sending a copy of the letter to RECO, the Better Business Bureau and Brookfield, he did not do so. If Mr. Gloster had been motivated to make life more difficult for Ms. Tibbles, he would have sent his letter to these organizations; and (3) After receiving the August 3, 2016 letter from Ms. Tibbles’ lawyer, Mr. Gloster wrote an email to Ms. Tibbles’ lawyer on August 6, 2016, requesting an extension of time to respond so that he could obtain legal advice. In his email, Mr. Gloster asked Ms. Tibbles’ lawyer to inform Ms. Tibbles that the letters were never sent to RECO, the Better Business Bureau or Brookfield. If Mr. Gloster had wanted to make life more difficult for Ms. Tibbles, he would have allowed Ms. Tibbles to continue to believe that RECO, the Better Business Bureau and Brookfield had received his letter.

[114] I find that Mr. Gloster’s defence of qualified privilege is not defeated by malice.

Was Mr. Gloster’s qualified privilege defence defeated because he exceeded the limits of his interest?

[115] Qualified privilege may be defeated when the limits of the duty or interest have been exceeded; if the defamatory material is sent to parties who have no reciprocal interest in receiving it, the defence is defeated. (DDI Diamonds Direct Inc. at para. 39).

[116] Ms. Tibbles argued that Mr. Gloster’s letter was sent to the owner of the brokerage where Ms. Tibbles worked, Mr. Browne, to intimidate and not because of any interest or duty. Ms. Tibbles also argued that there was no reason for a copy of the letter to have been sent to Mr. King and no reason for RECO, the Better Business Bureau or Brookfield to have been involved.

[117] I find that it was appropriate for Mr. Browne to receive a copy of Mr. Gloster’s letter. Mr. Browne was the owner of the brokerage and it was reasonable for Mr. Gloster to believe both that Mr. Browne would have the authority to cancel the invoice and that Mr. Browne would have an interest in a client complaint about the conduct of a broker.

[118] Mr. King had referred Mr. Gloster to Ms. Tibbles. Mr. King’s name was on the invoice. Mr. King had also corresponded with Ms. Tibbles, asking for his name to be removed from the invoice. For these reasons, I find that it was also appropriate for Mr. King to receive a copy of the letter.

[119] As I have already found Mr. Gloster did not send copies of his letter to RECO, the Better Business Bureau or Brookfield, it is not necessary for me to consider whether doing so would have defeated a defence of qualified privilege.

Conclusion with respect to qualified privilege

[120] To summarize, I find that:

• Mr. Gloster’s letter was sent on an occasion of qualified privilege;
• Although Ms. Tibbles’ pleading of malice lacked particulars, it was sufficient to permit her to raise the issue;
• While Ms. Tibbles satisfied me that Mr. Gloster acted with malice, she did not satisfy me that malice was the dominant motivation for his letter; and
• Mr. Gloster was justified in sending the letter to all of the individuals to whom he sent it and did not exceed the scope of his interest in this respect.

[121] The result is that I have concluded that Mr. Gloster’s letter was sent on an occasion of qualified privilege and Ms. Tibbles’ claim for defamation fails.

Issue #5: Are the words protected by the defence of fair comment?

[122] Although I have found that Mr. Gloster’s letter was sent on an occasion of qualified privilege, I will nonetheless also consider whether the words in the letter qualify as fair comment.

[123] The parties agree that the test which must be met by a party claiming fair comment was set out in Simpson v. Mair, 2008 SCC 40 at para. 28. The requirements of fair comment are the following:

• The comment must be on a matter of public interest;
• The comment must be based on fact;
• The comment, though it can include inferences of fact, must be recognizable as comment;
• The comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts? and
• Even though the comment satisfies the objective test, the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice.

[124] As Mr. Gloster’s counsel pointed out in his closing submissions, the “fair” in “fair comment” does not mean objectively reasonable. “The defence protects obstinate, or foolish, or offensive statements of opinion, or inference, or judgment, provided certain conditions are satisfied. The word ‘fair’ refers to limits to what any person, however opinionated or prejudiced, would express upon the basis of the relevant facts.” (Simpson, at para. 49, citing Channel Seven Adelaide Pty. Ltd. v. Manock, (2007) 241 A.L.R. 468, [2007] H.C.A. 60 (Australia H.C.), at para. 3.)

[125] Mr. Gloster argued that the defamatory statements in his letter satisfy the test for fair comment.

[126] Ms. Tibbles argued that Mr. Gloster’s fair comment defence fails on the first part of the test because the subject matter of his June 3, 2016 letter was not a matter of public interest. Ms. Tibbles argued that Mr. Gloster sent his letter because he did not want to pay her invoice and for no public interest purpose. Ms. Tibbles argued that if Mr. Gloster had had the public interest in mind, he would have sent his letter to RECO, the Better Business Bureau and Brookfield after she cancelled her invoice instead of considering the matter to be closed, his personal interest having been satisfied.

[127] Ms. Tibbles also argued that Mr. Gloster cannot prove that anyone could honestly express the opinions he expressed in his letter, based on the proven facts and that Mr. Gloster’s fair comment defence is defeated by malice.

[128] Turning first to the question of public interest, I have already found, when I considered the qualified privilege issue, that when he wrote his letter, Mr. Gloster’s primary motivation was to ensure that he was not required to pay Ms. Tibbles’ invoice and that he also wanted Ms. Tibbles’ conduct to be brought to the attention of Team Realty.

[129] There is no single test for public interest. 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 other; then it is a matter of public interest on which everyone is entitled to make fair comment. (Grant v. Torstar Corp., 2009 SCC 61 at para. 104 citing London Artists Ltd. v. Littler (1968), [1969] 2 All E.R. 193 (Eng. C.A.) at p. 198). Some segment of the public must have a genuine stake in knowing about the matter publishing. (Grant v. Torstar, at para. 105.)

[130] While the subject matter of Mr. Gloster’s letter may not have affected a large segment of the population, I am satisfied that if there are issues involving the billing practices, level of customer service, professionalism or fitness to practice of a busy real estate agent such as Ms. Tibbles, the members of the public living in the geographic area served by that real estate agent who may be considering selling or buying a home would have a genuine stake in knowing about the issues. I am satisfied, therefore, that Mr. Gloster’s letter dealt with a matter of public interest, particularly to the extent that it dealt with concerns about Ms. Tibbles’ conduct and professionalism.

[131] While I find that Mr. Gloster’s letter meets the first part of the test for fair comment in Simpson, it cannot survive the balance of the test.

[132] The defence of fair comment applies to comment and not to facts. I have already found that Mr. Gloster’s letter contained factual statements that are not true. These untrue statements are not protected by the fair comment defence.

[133] I have also already found the untrue statements made by Mr. Gloster were made either knowingly or while recklessly disregarding the truth and that this was sufficient to establish malice.

[134] My finding of malice did not defeat Mr. Gloster’s qualified privilege defence because I found that malice was not the dominant purpose of Mr. Gloster’s letter. It is not necessary, however, for malice to be the dominant purpose of a communication in order for the defence of fair comment to be defeated; the defendant needs only to be actuated by malice.

[135] In the circumstances, because of the untrue statements in Mr. Gloster’s letter, I find that Mr. Gloster cannot rely on the defence of fair comment.

Issue #6: Damages

[136] As I have found that Mr. Gloster’s letter was written on an occasion of qualified privilege and that Ms. Tibbles’ claim for defamation will be dismissed, she will be awarded no damages.

[137] However, even if I had not found that the qualified privilege defence applies and I had allowed Ms. Tibbles’ claim for defamation, I would not have awarded her any damages.

[138] I accept the evidence that Ms. Tibbles was extremely upset by Mr. Gloster’s letter. The letter was harsh. It also contained some statements that were not true. I accept that Ms. Tibbles was troubled by the contents of the letter for some time. I accept that she was tearful and distracted and that her digestive system was affected. I also accept that she worried that, because the letter had been sent by email, it could be widely distributed with the click of a mouse.

[139] Having accepted the evidence about the effect of the letter on Ms. Tibbles, it is for the following reasons that I would have awarded her no damages:

• Mr. Gloster’s letter was not widely distributed. I have already found that Mr. Gloster was responsible for sending, or publishing, the letter to three people, Mr. Browne, Ms. Harper and Mr. King. Although Mr. Gloster had said in his letter that he “will be filing complaints” with RECO, the Better Business Bureau and Brookfield and although his letter indicated that he would be sending copies to three organizations, he did not do so.

• Mr.oster’s letter did not affect Ms. Tibbles’ reputation in the eyes of the three individuals to whom Mr. Gloster sent it. Mr. Browne testified that his opinion of Ms. Tibbles had not been affected by Mr. Gloster’s letter and that he did not believe the contents of the letter to be true. Ms. Harper did not testify at the trial but Ms. Tibbles testified that Ms. Harper’s opinion of her after Ms. Harper received Mr. Gloster’s letter was consistent with an email Ms. Harper had written in which Ms. Harper described Ms. Tibbles as “the consummate professional” who had built “an amazing business”, whom other agents “love” and who had spent tireless hours volunteering. My reasons for concluding that Mr. Gloster’s letter did not affect Ms. Tibbles’ reputation in the eyes of Mr. King are somewhat more complicated. As I have already noted, Ms. Tibbles contacted Mr. King shortly after her relationship with Mr. Gloster broke down to tell Mr. King what had happened and to ask if he had any insights. In an email to Mr. King, Ms. Tibbles accused Mr. Gloster, who was Mr. King’s cousin, of lying. Ms. Tibbles also told Mr. King that Mr. Gloster is an “ass hole.” Ms. Tibbles also told Mr. King that she had told the building inspectors whose names she had given to Mr. Gloster to “run like hell” if he contacted them. On June 2, 2016, Ms. Tibbles and Mr. King had a very heated exchange on the telephone. That same day, Mr. King sent an email to Mr. Gloster in which he referred to Ms. Tibbles as an “idiot” and quoted his wife as having said that Ms. Tibbles “must have run out of her meds!” Also on June 2, 2016, Mr. King suggested to Mr. Gloster that he send a copy of his letter of complaint to Mr. Browne and Ms. Harper. I find that Mr. Gloster’s letter of June 3, 2016 did not affect Mr. King’s opinion of Ms. Tibbles because by June 2, 2016, Mr. King had already formed his own opinion of Ms. Tibbles, based on his discussions with Mr. Gloster and his direct interaction with Ms. Tibbles. (I have already referred to Ms. Tibbles’ complaint to RECO about Mr. King. RECO closed its file in July, 2017, after concluding that there had been no substantive breach of the applicable Code of Ethics or any other relevant statute under RECO’s jurisdiction.)

• Mr. Gloster’s letter did not damage Ms. Tibbles’ reputation in the eyes of colleagues who became aware of the letter. Ms. Tibbles’ colleague, Linda Uniac, who testified at the trial, agreed that she had always thought of Ms. Tibbles as a “star” real estate agent and said that Mr. Gloster’s letter did not change her opinion. Mr. Oikle, who also testified at the trial, also said that Mr. Gloster’s letter had not changed his opinion of Ms. Tibbles.

• Ms. Tibbles’ relationship with Brookfield, which was a referral source for her, was not affected by Mr. Gloster’s letter. Ms. Tibbles testified that she continues to be on Brookfield’s list of approved real estate agents.

• Mr. Gloster offered to apologize for the defamatory statements in his letter but Ms. Tibbles, who had initially wanted only an apology from him, discounted his offer of an apology, even after learning that he had not sent his letter to RECO, the Better Business Bureau and Brookfield, and demanded more from him. In June, 2016, Ms. Tibbles had informed colleagues that she was hoping that Mr. Gloster might retract the statements in his letter but said that she was not optimistic that he would do so. On August 6, 2016, after receiving Ms. Tibbles’ lawyer’s letter of August 3, 2016, Mr. Gloster informed Ms. Tibbles’ lawyer that he would be willing to issue a retraction. Mr. Gloster also asked Ms. Tibbles’ lawyer to inform Ms. Tibbles that his June 3, 2016 letter had never been sent to RECO, the Better Business Bureau or Brookfield. Mr. Gloster told Ms. Tibbles’ lawyer that he had thought that his dispute with Ms. Tibbles and her brokerage had been resolved when their invoice was cancelled on June 10, 2016. Ms. Tibbles’ lawyer replied to Mr. Gloster’s by saying that although the invoice had been cancelled, Ms. Tibbles and her brokerage would expect it to be paid and that a contribution to Ms. Tibbles’ legal fees would also be required. Ms. Tibbles’ statement of claim was issued September 16, 2016 and a courtesy copy was sent to Mr. Gloster’s counsel. On September 24, 2016, Mr. Gloster sent the following retraction and apology to Ms. Tibbles, Mr. Browne, Ms. Harper and Mr. King:

  Dears (sic) Sirs and madam,

  On June 3, 2016, I wrote a letter addressed and sent to Kent Browne and Rita Harper of Royal LePage Team Realty in Kanata, Ontario, in which I made intemperate remarks about Joanne Tibbles. The only other person or organization that received a copy of my letter, other than Ms. Tibbles herself, was John King, who introduced me to Ms. Tibbles.

  In my letter, I suggested that Ms. Tibbles had engaged in unethical and unprofessional practices, was not fit to sell real property and should be sanctioned. I hereby retract those comments and regret having made them. I apologize to Ms. Tibbles for any embarrassment or distress my letter may have caused her.

  Sincerely,

  Craig Gloster

  On September 25, 2016, Ms. Tibbles emailed Mr. Browne and Ms. Harper and asked them to “just ignore” Mr. Gloster’s apology because the matter was in the hands of her lawyer. On October 17, 2016, Mr. Gloster was formally served with Ms. Tibbles’ statement of claim.

• At trial, Ms. Tibbles said that she considered Mr. Gloster’s retraction and apology to be inadequate and too short. I am of a different opinion; I find that Mr. Gloster’s letter specifically retracted the defamatory comments Mr. Gloster had made about Ms. Tibbles, expressed regret for having made the statements and apologized to her.

• Finally but significantly, I find that, in the circumstances, Ms. Tibbles’ conduct would disentitle her from an award of damages. Although Ms. Tibbles was obviously very concerned about her professional reputation, and had clearly worked very hard to earn it, I find that she was cavalier about her reputation during her relationship with the Glosters and particularly in its aftermath. Although their reluctance to sign a buyer representation agreement may not have been typical, the Glosters had been concerned enough about whether Ms. Tibbles would require them to sign a buyer representation agreement that they had raised the issue in their first conversation with her. The Glosters were then surprised to receive a buyer representation agreement with the agreement of purchase and sale Ms. Tibbles sent to them by email the night of May 22, 2016. They had been with Ms. Tibbles in her office for 90 minutes that afternoon and the topic of a buyer representation agreement had not come up. In their email exchange of the night of May 22, 2016, Ms. Tibbles did not respond to Mr. Gloster’s comment that terms would need to be discussed if a buyer representation agreement was required. When Ms. Tibbles said that she could not help the Glosters unless they signed a buyer representation agreement and Mr. Gloster thanked her for her time, Ms. Tibbles sent an email, to which I referred above, that said, “Are you kidding me?” and then asked the Glosters if they had been using her to “entertain” them for the weekend. Ms. Gloster said that she was shocked by this email, which she considered to be unprofessional and improper. Ms. Tibbles had jumped to the conclusion that the Glosters were trying to take advantage of her and that their plan was to try to buy the Fairbanks Ave. home directly from the seller to avoid paying her commission. There was no evidence at trial that the Glosters had such a plan or any intention to deprive Ms. Tibbles of a commission. (While Mr. King did make an offer on the Fairbanks Ave. home for the Glosters, this was only after their relationship with Ms. Tibbles broke down and there was no evidence of any advance plan that Mr. King would make an offer.) After her relationship with the Glosters broke down, Ms. Tibbles made a number of disparaging comments about Mr. Gloster to others who worked in the real estate industry. As I noted above, Ms. Tibbles told Mr. King, a fellow real estate agent and Mr. Gloster’s cousin, that Mr. Gloster was an “ass hole.” Ms. Tibbles also gave Mr. Gloster’s name to the seller of the home on Fairbanks Ave. that the Glosters had hoped to buy, who was also a fellow real estate agent, and said that she hoped that the seller would sell the home to someone other than Mr. Gloster. Ms. Tibbles also contacted one of the building inspectors she had recommended to Mr. Gloster and told him to avoid Mr. Gloster; she had told Mr. King that she had told all three of these inspectors to “run like hell” if Mr. Gloster were to approach them. I find that by asking the Glosters if they were using her for their entertainment, by calling Mr. Gloster, a former client, an “ass hole” to the real estate agent who had referred Mr. Gloster to her and who was a relative of Mr. Gloster, by telling a real estate agent that she hoped that the agent would not sell her house to Mr. Gloster and by warning a building inspector to “run like hell” if Mr. Gloster approached him, Ms. Tibbles acted in a manner that was intended to insult or harm Mr. Gloster and which did not reflect well on Ms. Tibbles. In these circumstances, and particularly given that Mr. Gloster both retracted and apologized for the comments he made about Ms. Tibbles, I find that Ms. Tibbles’ conduct would disentitle her to damages for defamation; she cannot expect Mr. Gloster to be more sensitive to her reputation than she was herself.

Issue #7: Is Team Realty entitled to damages for unjust enrichment?

[140] As I noted in the overview to these reasons, to succeed in an action for unjust enrichment, a plaintiff must prove: (1) that the defendant was enriched; (2) that the plaintiff was correspondingly deprived; and (3) that there is no juristic reason for the enrichment.

[141] Team Realty argued that Mr. Gloster was enriched because he obtained services from Ms. Tibbles and then took advantage of the work she had done to submit an offer on the house on Fairbanks with the assistance of Mr. King. (The offer was not accepted as the seller of Fairbanks was already negotiating with another buyer and eventually sold the house to that buyer.)

[142] Team Realty argued that it suffered a deprivation because Ms. Tibbles was not compensated for the services she provided to the Glosters, even though she showed them a house they were interested in buying. Team Realty said that, in this sense, the situation was different from a situation in which a prospective buyer never finds a home they want to buy.

[143] Team Realty also argued that there is no juristic reason to support Mr. Gloster’s enrichment at the expense of Ms. Tibbles.

[144] I do not accept Team Realty’s argument. I find that Mr. Gloster was not enriched by Ms. Tibbles’ work. I also find that Ms. Tibbles was not deprived by the work she did for Mr. Gloster. Although they did not agree about whether the Glosters were obliged to sign a buyer representation agreement, Ms. Tibbles and Mr. Gloster agreed that Ms. Tibbles would be compensated if the Glosters bought a home and that her compensation would be in the form of a commission that would be paid by the seller’s real estate agent. The Glosters found a home they wanted to buy but did not buy it with Ms. Tibbles’ assistance or at all. I see no difference between this situation and any other situation in which a real estate agent is not compensated because they are working for a prospective buyer and the buyer does not buy a house. If I had found that Mr. Gloster was enriched because Ms. Tibbles had worked for him without compensation, I would find that there was a juristic reason for the enrichment because the parties had contemplated a legal arrangement that would have seen Ms. Tibbles paid if the Glosters bought a home. They had never contemplated an arrangement whereby Ms. Tibbles would be paid on the basis of an hourly fee, regardless of whether the Glosters bought a home or not.

[145] Team Realty’s claim for unjust enrichment is dismissed. If Ms. Tibbles was also advancing this claim, it is also dismissed.

Conclusion

[146] The plaintiffs’ action is dismissed.

Costs

[147] If the parties cannot agree on costs,

• Mr. Gloster may deliver written submissions of no more than five pages in length within 14 days of the date of this decision;
• Ms. Tibbles may deliver written submissions in response of no more than five pages in length within 14 days of the date of receipt of Mr. Gloster’s submissions; and
• Mr. Gloster may deliver any reply submissions of no more than three pages in length within seven days of the date of receipt of Ms. Tibbles’ submissions.

[148] The costs submissions may filed by sending them to me, care of the trial coordinator.

Footnotes:

[1] Because the parties agreed that Mr. Gloster’s letter had been published, the extent of the publication or republication is not relevant to the threshold issue of publication although it may be relevant to the issue of damages, Issue #6. That said, I intend to deal with all of the publication-related issues in this portion of these reasons under Issue #3.

[2] Black v. Breedon, [2012] 1 S.C.R. 666, 2012 SCC 19 at para. 20; Pritchard v. Van Ness, 2016 BCSC 686 at para. 78.

Released: April 04, 2019 Madam Justice H. J. Williams