Court File and Parties

COURT FILE NO.: CV-13-472965 DATE: 20190412

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HILARY SALMON Plaintiff – and – JONATHAN M. KESLASSY and GARFIN ZEIDENBERG LLP Defendants

Counsel: Renée Satterswaite, for the Plaintiff Sean Dewart and Matthieu Belanger, for the Defendants

HEARD: March 25 to 28, 2019

JUSTICE S. NAKATSURU

[1] Ms. Hilary Salmon has sued Mr. Jonathan Keslassy, a lawyer, and Garfin Zeidenberg LLP, the firm that he worked for in 2011, for solicitor’s negligence. Ms. Salmon is a real estate agent. She was also a minister at Greater Works Ministries of Canada Inc. (“GWM”), a church that tended to the spiritual needs of its members. Through the efforts of Ms. Salmon and other members of GWM, the church purchased a building at 430 Tapscott Road in Scarborough (henceforth the “Property”) in 2008 from which they intended to run community programs and for other humanitarian purposes. It was a very ambitious plan. The Property they bought was expensive. It was being sold for $3.7 million. In order to buy it, the Agreement of Purchase and Sale was highly leveraged. This included the use of the homes of Ms. Salmon and others as security for a take back mortgage in order to finance the purchase. GWM did not succeed in using the property for its good works. As time went by, it became very difficult to hold onto the Property. A tenant whose rent was counted on, broke its lease and moved out. There were other problems. The Property was eventually sold under a power of sale.

[2] All of this is really background to the story that brings the parties to court. Ms. Salmon and GWM retained Garfin Zeidenberg LLP to help sort things out that bedeviled the Property and its financing. Mr. Jonathan Keslassy was a junior associate at the firm. He had only been practicing about a year. He was brought into the case by Michael Garfin, the senior partner who was first approached by Ms. Salmon and Mr. and Mrs. Mageta Williams (“the Williams”) about GWM and the Property. Mr. Keslassy became the point person on the file doing most of the work. Mr. Keslassy wrote an opinion to Ms. Salmon outlining the litigation options regarding the Property. This included potentially suing the lawyer who had put together the deal. The conclusion ultimately was that it was not worth the resources to pursue litigation. Especially given the limited financial capability of Ms. Salmon to sustain the litigation.

[3] It was around this time that Kate Allen, a staff reporter with the Toronto Star newspaper, began an investigation into GWM and its acquisition of the Property. Litigation was contemplated by Ms. Salmon about the Property but it had not yet been commenced. When Ms. Allen contacted Ms. Salmon for the article, Ms. Salmon did not speak with her.

[4] The Toronto Star article came out on October 9, 2011. The headline said “A piece of heaven turned to hell.” Ms. Salmon was most upset by the article. She felt that she was defamed by it.

[5] Ms. Salmon contacted Mr. Keslassy about it. A phone call took place between Ms. Salmon and Mr. Keslassy on October 11, 2011. This phone call is pivotal in this lawsuit. Ms. Salmon claims Mr. Keslassy told her that she had seven days to give the Toronto Star notice in writing specifying the matter complained of and a 2-year limitation period to sue the Toronto Star. Mr. Keslassy’s defence is that he told her the correct information about the limitation period. That she had six weeks to give notice of defamation and three months to institute a lawsuit.

[6] Ms. Salmon issued the Statement of Claim on March 8, 2012, some five months after the article was published, suing the Toronto Star, Kate Allen and Kathy English (a Star editor). The Defendants in that suit moved to dismiss this defamation action due to the limitation period. They were successful. Ms. Salmon’s defamation suit was dismissed.

[7] Ms. Salmon now sues Mr. Keslassy and Garfin Zeidenberg LLP for solicitor’s negligence.

[8] There are three issues for me to determine:

• Did Ms. Salmon receive improper legal advice about her rights under the Libel and Slander Act, R.S.O. 1990, c. L. 12 regarding the limitation period to sue the Toronto Star?
• If so, did Ms. Salmon have a valid defamation claim against the Toronto Star and suffer damages caused by the Defendants’ negligence?
• If so, what is the extent of those damages caused by the Defendants’ negligence?

[9] Analytically, this is a simple case. Testimony wise, the case was not complicated. I have heard from three witnesses: Ms. Salmon, Mr. Anthony Sims (a witness who testified that he overheard the October 11, 2011, telephone conversation), and Mr. Keslassy. I will not summarize the evidence beyond what is needed to explain my decision.

A. WERE THE DEFENDANTS NEGLIGENT?

[10] There is one factual finding that will determine this question. The only negligence claim made against Mr. Keslassy is that in a telephone conversation with Ms. Salmon, on October 11, 2011, it is alleged that Mr. Keslassy told Ms. Salmon wrong information about the relevant limitation period under the Libel and Slander Act. The question that I need to answer is whether it was more likely than not that Mr. Keslassy gave her wrong information about this? It is not disputed that if he likely gave incorrect information, then the standard of care for negligence has been breached. No expert opinion evidence was called at this trial. None is needed to answer this question. There is no other purported act of negligence in issue at this trial.

[11] This factual determination depends on credibility. Ms. Salmon and Mr. Keslassy have testified to very different versions of the telephone call. Ms. Salmon has called as her witness, Mr. Anthony Sims, to corroborate her testimony. Mr. Sims testified that he overheard the telephone conversation and that Ms. Salmon’s testimony is correct. I will assess all this evidence. In doing so, I am considering the whole of the evidence called at the trial including the exhibits.

[12] I will start with Ms. Salmon’s testimony. She described the events that led up to her meeting Mr. Keslassy. Because of the problems with the GWM property, Ms. Salmon went to see Michael Garfin of the Defendants’ firm based on a referral from a friend. Mr. Garfin said he would take on the case and took a retainer of $10,000. Ms. Salmon testified that it was at the second meeting that she was introduced to Mr. Keslassy. She was told that Mr. Keslassy had just come out of law school, was new to the firm, and would work on the case. A retainer agreement was signed on February 7, 2011.

[13] Ms. Salmon described her interactions with the law firm and Mr. Keslassy. Her recollections were not the best. But this is understandable given the stress and pressure she was under at the time and had no notes to help her recollection. For instance, she recalled a lawyer who played a devil’s advocate at one of the meetings. But there was a lack of particularity in her description. She seemed to believe he worked for another firm when he really worked for Garfin Zeidenberg LLP. Ms. Salmon has a tendency to mix up details.

[14] At one of the meetings, Ms. Salmon was quite upset when she learned how quickly the $10,000 retainer had been used up by the firm and the action had not even been started. Her upset was visible in the courtroom. Ms. Salmon also realized that they did not have the financial resources for any potential litigation such as suing the lawyer who had represented GWM in the real estate transactions.

[15] It was while they were trying to come up with the funds to pursue the claims that Ms. Salmon received a call from Kate Allen. She testified about the call. Ms. Salmon did not wish to speak to Ms. Allen until she received some advice from her lawyer. She called Mr. Keslassy. Mr. Keslassy said that it was best to say nothing as it may jeopardize the law suit.

[16] When the article came out, Ms. Salmon called Mr. Keslassy again. She testified that she was in the offices of Anthony Sims and Tom Thiru when Mr. Keslassy called her. Because her cellphone “burned her ear”, she put the cell phone on speaker. She testified that both Mr. Sims and Mr. Thiru were present and overheard the conversation. She had previously asked them for help. Ms. Salmon explained things to Mr. Keslassy. Mr. Keslassy told her that she had seven days to give notice to the Toronto Star about suing for defamation. Then she had two years to sue. During that time Ms. Salmon could get funds together and then their firm could represent her once she had the funds.

[17] Ms. Salmon sent the notice to the Toronto Star within seven days. Ms. Salmon sent a number of emails to Ms. English in the days following complaining about the article, asking for a retraction, and threatening to sue. She was also actively trying to get help including a letter to the then Toronto Mayor, Rob Ford.

[18] In her testimony, Ms. Salmon described the hardship she suffered from the fallout of the article. Given how bad things were, Ms. Salmon decided to file a claim on her own as she could not wait for two years to sue for defamation. When she did issue her Statement of Claim, the Toronto Star brought her to court to strike her claim due to the limitation period. Ms. Salmon told the judge hearing the motion that she had two years to sue. The judge said she had three months. She testified that she told the judge that the lawyer told her that. The judge said that she needed to take it up with the lawyers. Ms. Salmon started her lawsuit against the Defendants soon after her action against the Toronto Star was dismissed due to the limitation period defence.

[19] I will now assess Ms. Salmon’s testimony. Generally speaking, Ms. Salmon was not the most direct or the most responsive witness. In answering questions put to her, she would often veer from topic to topic. Some of her answers were confusing. I accept that most of this was likely a result of her personality or character. Although clearly an intelligent woman, sometimes she did not communicate the evidence in a straightforward manner. This factor did not diminish her credibility in my eyes. As the law has consistently warned, the demeanor of a witness is a poor measure of credibility or reliability.

[20] Looking at her evidence in a broad way, there is nothing inherently implausible about what she says. She says that a young lawyer with about a year’s worth of experience gave her wrong limitation period advice. That advice was never confirmed in writing. I note that it would not be the first time that an inexperienced lawyer made a mistake even about something as crucial as a limitation period.

[21] It is also true that she did give the Toronto Star notice within seven days. It is submitted that this act on her part, confirms her account of the erroneous advice that she received. I do agree there is some confirmatory effect to this. However, I find it is rather a neutral factor, since it may well be that her recollections are simply wrong or it was just coincidence that she gave notice within that period of time.

[22] While there are positive aspects to her evidence, I find that her credibility was diminished by the cross-examination. There were inconsistencies in her testimony. Some of them were not particularly material. Some could be explained by the length of time that has passed since these events. It would be astonishing if anyone’s recollections were completely accurate or unblemished.

[23] However, there are aspects of her testimony revealed in cross-examination that significantly diminished the weight that I can give her evidence.

[24] First of all, there were areas of her testimony where she seemed to exaggerate. This was particularly evident when it came to the description of her suffering from the Toronto Star article or from the fallout of the GWM property deal. Both in her testimony and in the emails that she wrote near the time of the events. Again, this may well be simply how Ms. Salmon expresses herself. Just as an example, the occasions where she described herself as homeless or living on the streets is not an accurate description. She was staying with others or renting her home. The result of this tendency is that I find it hard to attach a great deal of weight to some areas of her testimony.

[25] Secondly, I have concerns about the reliability of her testimony. As I said, the events happened some time ago. In addition, these events were very stressful for Ms. Salmon. As already noted, while the inconsistencies or inability to recount details did not mean that she was being untruthful, overall it has an effect on whether she was recalling accurately. On more than one occasion, Ms. Salmon testified that she had “blocked” out some of the details of these events as they are painful to her.

[26] Thirdly, when it came to the critical conversation that happened on October 11, 2011, between Ms. Salmon and Mr. Keslassy, the cross-examination was effective. There were concerns I already had about the plausibility of the conversation as she described it. Ms. Salmon testified that she put the call on speaker and that Mr. Thiru and Mr. Sims could and did overhear it. The reason she gave for this was that her cellphone became hot or burned her ear. I find this a puzzling and implausible explanation. If her phone did in fact become hot, the easy solution is simply to not hold it close to one’s head rather than putting it on a speaker phone setting. Equally implausible is that Ms. Salmon would allow two men to overhear the conversation; a solicitor-client conversation in which she is seeking advice. Common sense would say that a person would hold such conversations in private. Even if she did not want to hold the phone to her ear, it does not make sense that she would have the audio on so high that others around her would be able to hear it. To me, it just seems too convenient to claim others have overheard this conversation when later the contents of the call is being disputed in a legal case.

[27] In addition to this, there was a significant inconsistency in her evidence about this call. In chief, she testified that both Mr. Thiru and Mr. Sims were present for the call. In cross-examination, she remained insistent that Mr. Thiru was present and overheard the call, even when it was specifically put to her he was not. Ms. Salmon was taken to her discovery transcript where she testified Mr. Sims was present for the call but no one else was. When cross-examined about this, Ms. Salmon had no acceptable explanation for the discrepancy. She became evasive, argumentative, insistent, and at one point non-responsive. I find this cross-examination significantly diminished her credibility on this very relevant area of evidence.

[28] There is one final point. Clearly, if true, Mr. Keslassy’s erroneous and misleading advice would have been naturally very upsetting to Ms. Salmon when the Toronto Star raised it to dismiss her lawsuit. That conversation, if it had happened, would have stuck out in her mind. Given what I have seen of Ms. Salmon, she would not hesitate in raising it and blaming Mr. Keslassy. On March 9, 2012, Ms. Salmon issued her Statement of Claim against the Toronto Star, Ms. Allen, and Ms. English for defamation. The Toronto Star moved to have her claim dismissed on the basis of the limitation period. Ms. Salmon presented an affidavit in response to that motion. This affidavit is in evidence. In that affidavit, the only mention about any potential interaction with Mr. Keslassy is a brief paragraph that states:

22. I confess that even though I sought legal advice and assistance, I was never told that there was a three months Status Limitation that links to a published report. Such knowledge was only had, when I received the Notice of Motion, the Defendants is now trying to use as a secret weapon.

[29] Giving full recognition to the fact that Ms. Salmon was unrepresented when she created this affidavit, I am still troubled by it. It is not per se inconsistent with her trial testimony. However, this paragraph reads as if there was no discussion at all about limitation periods regarding defamation with counsel. Secondly, it omits all detail about the discussion she now says she had with Mr. Keslassy. That she was wrongly advised that she had seven days to give notice and then two years to issue her Statement of Claim. Thirdly, it also fails to say that Ms. Salmon had two witnesses who confirmed her version of that conversation. These omissions are significant. Given how detailed other parts of this affidavit are and how important the issue of the limitation period was on the Toronto Star’s motion, I would have expected much more to have been said by Ms. Salmon in the affidavit. I find that this state of affairs negatively affects my assessment of her credibility. [^1]

[30] Let me turn to the evidence of Mr. Anthony Sims who was called by the Plaintiff. Mr. Sims testified that he overheard this conversation. He is certain he heard Mr. Keslassy say to Ms. Salmon that she had seven days to respond and she had a limitation period of two years. Of course, the Plaintiff has put this forward as confirmatory evidence.

[31] I did not find Mr. Sims to be a credible or a reliable witness. I have come to this view for a number of reasons.

[32] First of all, he is not a fully independent witness. While his relationship with Ms. Salmon was not fully explored, he testified that he had a prior business relationship with her that appears to have continued past 2011. It was also clear to me that he thought highly of Ms. Salmon and did not see any of these events as tarnishing his positive view of her. This potential bias is a minor factor. By itself, this relationship does not make his evidence suspect. However, it may explain the stance he took on cross-examination.

[33] I fully appreciate both from well-established authority and from my many years as a judge, that the demeanor of a witness should not be a significant factor in assessing credibility. The reasons for this are obvious. However, triers of fact are still allowed to consider it. Although, I must say I seldom do. That all being acknowledged, the manner Mr. Sims took to the questions asked of him went beyond simple demeanor. From the moment the very first innocuous question was posed to him in cross-examination about his background, he took a remarkably hostile and aggressive stance. He continued to take that stance during nearly all of the cross-examination. He was largely argumentative. On more than one occasion he refused to answer questions in a responsive way. He did not come across as a fair witness who wanted to assist in the truth finding process. Mr. Dewart described him as a “man on a mission” to help Ms. Salmon. I cannot be certain of this but the posture and the attitude he took, certainly lends support to such a characterization. Ms. Satterswaite responded that this may just be his general demeanor and care should be taken not to read too much into it. Ms. Satterswaite may be right, but given this type of testimony, even if I had to consider this factor alone, I would not be able to accept his testimony about the conversation he said he overheard.

[34] But it does not stand alone. There are other concerns. While it is not totally implausible that a witness such as he could have overheard some conversation given the nature of the open cubicles in the office, what is implausible to me is that he would recall the specifics that he says recalls. There does not seem to be any reason that he would have paid any particular attention to this conversation. Yet he remembers the exact details of the seven days to respond and a two-year limitation period which, highly conveniently, mirrors what Ms. Salmon says and is crucially important in this litigation. When asked, even in chief, how he could be so certain that he remembered this, his answer was rambling, confusing, and unconvincing. As disturbing is that Mr. Sims remembers nothing else about this conversation but this crucial detail. And he recalls the conversation as being very short. Which is inconsistent with the telephone records that say it lasted 17 minutes.

[35] Thus, I did not find Mr. Sims credible. The circumstances in which he is now asked to recall also raises serious reliability concerns. In the end, I have little hesitation in concluding that I give his evidence little or no probative weight. It thus does not confirm Ms. Salmon’s testimony on this point.

[36] Let me turn to Mr. Keslassy’s testimony. Mr. Keslassy described his background and how he articled for and then was hired by Garfin Zeidenberg LLP.

[37] On February 7, 2011, Ms. Salmon signed a retainer agreement with the firm. She had come to the firm with the Williams. Their primary concern was the power of sale of the property and the collateral mortgages on Ms. Salmon and four other persons’ homes. She was also concerned about a potential action against their past lawyer and the lawyer who gave independent legal advice and defending a lawsuit brought by June Douglas, one of the homeowners who put up their home as security. These were the three issues relating to the retainer. A $10,000 initial retainer was paid. Mr. Keslassy had primary carriage of the file.

[38] A meeting was conducted on April 5, 2011, along with David Downs, another lawyer with Garfin Zeidenberg LLP. A reporting letter dated May 2, 2011, was sent to Ms. Salmon and the Williams outlining their opinion relating to GWM and instituting potential litigation. This letter assessed the options they had and the likelihood of success of the various options. In that letter, Mr. Keslassy warned of potential Statute of Limitations issues regarding the options. Mr. Keslassy explained that the proceedings would be expensive and the likelihood of success in this complicated matter was difficult to assess. He explained that further retainers would be required.

[39] On September 13, 2011, Mr. Keslassy sent an updated letter regarding what had occurred and his opinion that the mortgages were likely valid. Further, action against the lawyers did not stand a strong chance of success. It was Mr. Keslassy’s view that Ms. Salmon would not likely be able to afford the litigation on an ongoing basis. Mr. Keslassy referred to the two- year limitation period that she had to commence her own action. On September 15, 2011, Ms. Salmon responded by email to the letter. She thanked Mr. Keslassy for his services and stated she was in poor finances. She suggested that in order for them to move ahead and not lose their statutory time limit, she felt compelled to take on the case herself. She asked for the supporting documents if she had to proceed on her own. On September 19, 2011, Mr. Keslassy asked Ms. Salmon, by email, to confirm with the Williams that they agreed that they no longer wanted the firm’s services and he would help facilitate the transfer of the file to them. Ms. Salmon replied that same day. She said that she had contacted the government and they were willing to help with the paperwork without costs. They asked for their file and to meet with the firm. Ms. Salmon asked for any help the firm could provide in this context and also to get the necessary documents. Mr. Keslassy testified that at this point in time, he understood that the firm’s retainer was at an end. On October 25, 2011, Ms. Salmon said they had found another lawyer and Mr. Keslassy had the file arranged to be picked up.

[40] Regarding the Toronto Star article, Mr. Keslassy testified he first heard of such a potential article at the end of August 2011, when Ms. Salmon called him extremely upset that the Toronto Star reporter had contacted her. Ms. Salmon said she did not want to speak to her. Mr. Keslassy testified that he tried to calm and console her and told her that she did not have to speak to the reporter if she did not want to. On August 31, 2011, Mr. Garfin referred an email to Mr. Keslassy from Ms. Salmon complaining about the contact from the Toronto Star. Mr. Garfin asked Mr. Keslassy to deal with it.

[41] On October 10, 2011, Mr. Keslassy received an email from Ms. Salmon attaching a link to the article that was published and her complaints about the article.

[42] On October 11, 2011, Mr. Keslassy spoke to Ms. Salmon. This call is docketed in the file. The telephone records shows it was 17 minutes long. Mr. Keslassy testified that though it was clear that the firm was not acting for Ms. Salmon moving forward, he felt obligated to advise her of the limitation periods in the Libel and Slander Act. They discussed the article. Mr. Keslassy testified that he vividly recalled pulling up the Libel and Slander Act on his computer on e-laws. As a litigator, he was careful about limitation periods. He also knew that there was a unique limitation period for libel so he pulled it up. He told Ms. Salmon that she had six weeks to give the Toronto Star notice and there was a limitation period of three months to start an action. Mr. Keslassy knew that Ms. Salmon was going to act on her own and that she needed to act as soon as possible so the limitation period jumped out as crucial advice. He testified that Ms. Salmon never asked him to take on the defamation case. Mr. Keslassy further testified that there was only one conversation that he had with Ms. Salmon about the article. There were other conversations with her after October 11, 2011, but these were about their fees and the transfer of the file.

[43] In assessing his testimony, I will start by saying Mr. Keslassy presented well as a witness. However, I find it important to remind myself that presentation does not equate to truthfulness or reliability. Mr. Keslassy is trained and is now experienced as a lawyer. It is his part of his training and skill to present well. Thus, I cannot put any weight into how he presented his testimony.

[44] Ms. Salmon submitted that Mr. Keslassy testified that he was sympathetic to her, but his lack of concern for her in failing to follow up with her after she sought his advice about the Toronto Star article belied this purported sympathy. I did not find it so. In my view, it seemed his expression of sympathy was genuine. The fact he did not do more afterwards is something Mr. Keslassy no doubt now regrets. However, given the context of being a junior lawyer in a law firm, the fact he did not do more is understandable to me.

[45] It is true that Mr. Keslassy did not have notes of that conversation to help recall the advice that he gave. However, this is but one factor in assessing the weight to be given his evidence: Rider v. Grant, 2015 ONSC 5456 at para. 91. It must be recalled that Mr. Keslassy had already advised Ms. Salmon that the firm could really be of no further assistance to her. They were in the process of transferring her file to her or some other lawyer or pro bono agency that could help her. Certainly it would have been better practice to have made notes of this advice or even to follow it up in writing with her, but in these circumstances, I can understand why he did not. The firm was not retained on any potential defamation lawsuit. They were ending their relationship with her.

[46] What is probative is the circumstances regarding giving that advice that lends weight to his testimony.

[47] First of all, Mr. Keslassy testified that on another file that he was working on near the time of his conversation with Ms. Salmon, he had researched the limitation period under the Libel and Slander Act. In a letter dated June 24, 2011, under the signature of another lawyer of the firm, Mr. Keslassy provided this advice correctly to another client. The letter is an exhibit. Mr. Keslassy testified that he composed this letter. His initials are on the letter. The docket confirms Mr. Keslassy’s work. The advice contained in the letter is accurate. In my view, this is strong confirmation of his evidence. Put another way, prior to his conversation with Ms. Salmon on October 11, 2011, he had specifically gained the knowledge that defamation had a special limitation period. Since this was the case, the likelihood that he would have given mistaken advice to Ms. Salmon (regarding both the notice period and the limitation period to commence an action) is significantly lessened.

[48] Secondly, Mr. Keslassy has a recollection of having the Libel and Slander Act up on his computer screen. This is plausible to me. Even if one was aware that the defamation limitation period is different, as a young lawyer, it would be prudent to check it while you are speaking to a client. Accepting that Mr. Keslassy did do this, as I do, this would support his testimony that he still had a specific recollection of this call amongst all the other phone calls that he made during this time and since then. It even further diminishes any possibility that he would have given wrong advice. Ms. Salmon points out that in preparation for this trial, she had asked the Defendants for the browser history to confirm Mr. Keslassy’s act, received an undertaking to do so, and was not provided with it. However, I accept Mr. Keslassy’s evidence that his firm had attempted to secure it but the browser history was not saved for such a lengthy period of time by their computer system.

[49] Thirdly, Mr. Keslassy testified that the issue of limitation periods is very important to civil litigators. Missing them is a significant worry. While I appreciate that even the most experienced litigators make mistakes including about limitation periods, Mr. Keslassy’s evidence strikes me as most plausible. He was not very experienced. He was aware there was something special about defamation limitation periods. He had every reason to look up the limitation period and to be correct. His emphasis on this under cross-examination was credible.

[50] Under cross-examination, Mr. Keslassy remained consistent and straightforward. An alleged minor inconsistency about whether he viewed Ms. Salmon as “high maintenance” or “difficult” was of no moment. He was not impeached. His testimony did not suffer under questioning. I can find no reason why I should not accept it.

[51] Overall, I find Mr. Keslassy’s evidence both credible and reliable. I accept it.

[52] In conclusion, I find that Ms. Salmon’s testimony about this conversation has little weight. I find Mr. Keslassy’s evidence truthful and reliable. I accept his testimony. I much prefer it to that of Ms. Salmon. In my view, Ms. Salmon does not accurately recall this conversation on October 11, 2011. This is understandable to me given the stress she was under at the time. She has now come to believe that she was given the wrong legal advice about the limitation period. This belief is wrong. I find that she was given the right advice.

[53] Thus, Ms. Salmon has not proven on a balance of probabilities that the Defendants have committed any negligent act. The action is therefore dismissed.

B. WAS THE TORONTO STAR ARTICLE DEFAMATORY AND THE DEFENCE OF RESPONSIBLE PUBLIC INTEREST COMMUNICATION?

[54] I will move on to the second issue. If I am wrong and Mr. Keslassy was negligent, I find that the Toronto Star article was likely defamatory but only nominal damages should be awarded since the defence of public interest responsible communication would have been proven.

[55] Before outlining my reasons, I will just note this. While the parties did not specifically allude to the fact that we were having a “trial within a trial” in this case, they proceeded on the basis we were. I also note that while no witnesses were called from the Toronto Star, the material facts that needed to be established were available to me based upon the agreed trial record.

[56] Moving to the first issue, I find Ms. Salmon would have proven on a balance of probabilities the required elements of defamation regarding Kate Allen’s article “A piece of heaven turned to hell”, published in the Toronto Star on October 9, 2011.

[57] Grant v. Torstar Corporation, 2009 SCC 61, [2009] 3 S.C.R. 640 at paras. 28 and 29 sets out the test for defamation:

A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (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. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: see, e.g., R. A. Smolla, "Balancing Freedom of Expression and Protection of Reputation Under Canada's Charter of Rights and Freedoms ", in D. Schneiderman, ed., Freedom of Expression and the Charter (1991), 272, at p. 282. (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se : R. E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), vol. 3, at pp. 25-2 and 25-3.) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability.

[58] The common law uses an objective standard of the right-thinking person to determine whether the meaning of impugned comments are defamatory. In Bou Malhab v. Diffusion Metromedia CMR Inc., 2011 SCC 9, [2011] 1 S.C.R. 214 at paras. 40 to 41, Deschamps J. had the following exposition on this common law standard:

The reasonable person acts in an ordinarily informed and diligent manner. He or she shows concern for others and takes the necessary precautions to avoid causing them reasonably foreseeable injury (Ouellet v. Cloutier, [1947] S.C.R. 521, at p. 526). He or she respects fundamental rights and therefore cannot disregard the protection established in the charters. Since the standards maintained by the reasonable person are consistent with Charter values, he or she is careful not to violate the rights of others.

Although the ordinary person reacts like a sensible person who, like the reasonable person, respects fundamental rights, care must be taken not to idealize the ordinary person and consider him or her to be impervious to all negligent, racist or discriminatory comments, as the effect of this would be to sterilize the action in defamation. As the Superior Court stated in Hervieux-Payette v. Société Saint-Jean-Baptiste de Montréal, [1998] R.J.Q. 131 (reversed by the Court of Appeal on other grounds)), "[t]his ordinary person is neither an encyclopedist nor an ignoramus" (p. 143). As I have noted, in assessing injury in an action in defamation, the ordinary person is only an expedient used to identify damage to reputation. Judges must therefore avoid limiting themselves to an inflexible test that would prevent them from recognizing actual damage to reputation where it occurs.

[59] There is no issue that the impugned words referenced Ms. Salmon or that the article was published. The issue is whether the impugned words would tend to lower the Plaintiff's reputation in the eyes of a reasonable person. I have looked at the article in its entirety. Not just isolated portions of it. I have also examined the impugned words in their proper context.

[60] The Defendants have a point when they argue that when the article is looked at as a whole, it does not paint Ms. Salmon as a criminal or someone who committed fraud on the homeowners who put up their homes as collateral in the transaction. It explicitly quotes two of the homeowners as saying Ms. Salmon had good intentions in doing the Property transaction.

[61] However, I find that it is likely that the impugned words used in the article would tend to lower the Plaintiff's reputation in the eyes of a reasonable person. A reasonable person would view that Ms. Salmon had exerted undue pressure and influence on the homeowners to put their homes up as collateral. She used their trust in her as a pastor to do this. Ms. Salmon received a commission of $74,000 from the sale. The man who gave the vendor take-back mortgage was a gambler on a large scale with large debts who went on to declare bankruptcy. The man who took over that mortgage, a gambler himself and an associate of the first man, blamed Ms. Salmon for getting into a deal that was too big for her. The trust the homeowners put into Ms. Salmon as their leader was misplaced. I find that any reasonable person reading the words used would likely feel disinclined to use her as a real estate agent, be involved in investments with her, or have her minister their spiritual needs.

[62] Moving on to the defence of responsible communication on matters of public interest as it was developed in Grant v. Torstar Corp., I find that the Toronto Star, Ms. Allen and Kate English (an editor at the Toronto Star) would have proven this on the evidence before me.

[63] First of all, I find that the article was on a matter of public interest. The subject-matter here was one that invited public attention and that the public had some substantial concern in because it affected the welfare of citizens. On a number of levels this was so. There is the public interest in the welfare of the homeowners who were at peril of losing their homes which they pledged in hopes of achieving a greater societal good. There is the public interest in a religious organization who lost their building due their inability to properly finance the purchase of the building or maintain its upkeep. There is the public interest in the cautionary tale that even where individuals may have the best of intentions to further laudable community goals, those goals may be undermined by others whose involvement may be more self-interested and not laudable. The fact that some of the language tends to be on the more sensational end of the spectrum or the article was designed to raise further public interest, does not mean the subject-matter itself was not one of public interest.

[64] Secondly, I find that this communication on a matter of public interest was responsibly made. I have scrutinized the appropriate factors.

[65] The allegations against Ms. Salmon were serious given the potential effect it could have on her. That said, the degree of due diligence required was mitigated by the fact that no allegation of criminality was directed her way. Indeed, the article paints her as more incompetent and foolish rather than malicious. In this context, the defamatory sting was less painful and less diligence was required.

[66] On the other hand, the subject-matter was not of great public importance or of urgency. It was a local matter. The events had occurred in the past. There was nothing urgent about publishing it.

[67] All things considered, the sources of information were strong. There were no anonymous sources. The homeowners were all identified. So were the men who held the take-back mortgages. Nothing in the homeowners’ background would suggest unreliability. Merely because they were involved in litigation or had a potential bias against Ms. Salmon did not undermine their unreliability. Verbatim quotes were often used. Other sources came from reliable documentary sources such as real estate records or court records.

[68] A key factor is that Ms. Allen sought out Ms. Salmon’s position prior to publishing the article. Specific questions were asked of her. In addition, Ms. Allen had verbally communicated with Ms. Salmon. Given my credibility findings above, I do not accept Ms. Salmon’s characterization of such communications. Ms. Salmon also had an opportunity to voice her concerns to Ms. English before the article was published. Ms. Salmon refused to give her side of the story aside from the comment that the allegations against her were falsified. In the article, Ms. Allen duly printed Ms. Salmon’s position and her comment that these allegations were false. Ms. Allen took a similar approach with other individuals who refused to comment for her story. Thus, Ms. Salmon was given an opportunity to respond. An example of how Ms. Salmon could have productively used that opportunity was the article stated that Ms. Salmon received a commission for the purchase of the Property. This was technically true but left the impression that she profited from the transaction. However, Ms. Salmon used her commission to facilitate the purchase of the Property; a fact that Ms. Allen would not have known even if she exercised due diligence unless Ms. Salmon told her.

[69] Finally, when Ms. Salmon advised that she did not own two properties as the article had said, the Toronto Star published an apology and a correction soon after.

[70] Taking these factors into account, I find that the communication was done responsibly. As a result, in this “trial within a trial”, I find the defence of responsible communication on a matter of public interest would have been proven.

[71] Ms. Salmon argued that the appropriate test of causation on this negligence suit was the “but for” test. She claimed that damages she would have obtained on the defamation suit should be the damages awarded to her in this action against Mr. Keslassy. Put another way, it was an all or nothing claim put forward by Ms. Salmon; not a loss of chance that she claimed. In Jarbeau v. McLean, 2017 ONCA 115, Pardu J. explained how the causation principle works in cases such as this. Pardu J. noted that the “but for” test is the appropriate test for causation in all but rare cases. If the plaintiff can prove but for the solicitor’s negligence, she would have been successful at trial, 100 per cent of the lost damages can be awarded against the solicitor. In other cases, the trial judge could find that the plaintiff would not have been successful and therefore only nominal damages may be awarded against the solicitor. In some cases of solicitor’s negligence where it is practically impossible to determine what would have happened but for the solicitor’s negligence, a plaintiff can advance a claim for a loss of a chance to recover and the damages would be the value of the opportunity lost to the plaintiff.

[72] In this case, I am satisfied that Ms. Salmon would not have been successful in her defamation suit. As a result, Ms. Salmon is only entitled to nominal damages for Mr. Keslassy’s act of negligence.

C. WHAT ARE HER DAMAGES?

[73] The third issue need only be reached if my conclusions above are incorrect. Given my above findings, I will be brief in setting out my decision on damages. Even assuming that Ms. Salmon would have had a successful defamation claim against the Toronto Star, the damages that she would have received are not what she has submitted before me. Ms. Salmon has relied heavily on the case of Rutman v. Rabinowitz, 2018 CarswellOnt 989 (C.A.). In doing so, she submits that she should be awarded general damages in the amount of $200,000, aggravated damages in the amount of $200,000, and punitive damages in the amount of $250,000.

[74] I do not agree. I find that facts of Rutman v. Rabinowitz readily distinguishable. The facts in that case are far more egregious than what are found in this case.

[75] General damages in libel cases are presumed from the very publication of the false statement. In assessing the quantum of the compensatory damages, a number of factors are important. First of all, I agree Ms. Salmon’s reputation for trustworthiness and integrity as both a pastor and a real estate agent are important. That said, there is nothing more unique about her position and standing in the community beyond her occupations. I further appreciate that Ms. Salmon has testified about how her work as a real estate agent has suffered but I find the evidence regarding this lacking. I also appreciate the mode and extent of the publication is an important factor. I received no evidence about the extent of the distribution. However, I can safely infer, given the nature of the Toronto Star and the fact the article was also on its website, that the extent of distribution was significant. As recognized, internet defamation can be particularly pernicious. On the other hand, there was only one article. There was an apology, but this only pertained to an error in the article whereby it claimed Ms. Salmon owned two homes. I have not found the Toronto Star article to be particularly defamatory. It was mildly so. There was nothing about the conduct of the Toronto Star from the time it released the article to the time it had her claim dismissed on summary judgment that is aggravating. The Toronto Star through its editor, Ms. English, communicated with Ms. Salmon. I do not find that it was ever said to Ms. Salmon that the Toronto Star was not going to print the article. In the lawsuit brought by Ms. Salmon, the Toronto Star relied upon its rights and was successful. In terms of the effect the article had upon Ms. Salmon, I am not satisfied given my view of the credibility of Ms. Salmon, that the specific medical ailments which largely related to anxiety, depression, and distress, were that much greater from the publication of the Toronto Star article than it was from the whole unravelling of the ownership of GWM’s Property. While no doubt she suffered real distress from the publication, how greater this was from the actual distress resulting from the other problems faced by her is difficult to determine. Taking into account all the appropriate factors, I find that general compensatory damages of $50,000 to be right.

[76] The Plaintiff did not specifically seek special damages for pecuniary loss. I find that there is insufficient evidence to support any special damages. I appreciate that these are hard to prove. But there is a lack of any recent and substantial evidence supporting a loss of income or other special damages.

[77] I find that on these facts, there is no basis to award aggravated damages. As previously mentioned, I found Ms. Salmon’s testimony about the injuries that she had suffered from the defamation lacking in coherence and credibility. She embellished her injuries. Scant medical evidence was filed in support of it. Even prior to the article being published, there are comments in the documentary evidence where Ms. Salmon claimed she was suffering significant mental and emotional distress from the Property issues. Finally, the medical records showed a gap of over a year where she did not seek any attention from her family physician; visits that only really recommenced after she filed the Statement of Claim before the court.

[78] Finally, there is no basis for punitive damages. First of all, there is nothing in the conduct of the Defendants that would warrant it. At its highest, Mr. Keslassy, likely due to his inexperience, failed to properly advise Ms. Salmon correctly about the limitation period. Neither he nor his firm were ever specifically retained to represent Ms. Salmon in a potential suit against the Toronto Star. Ms. Salmon fully understood this. Aside from this sole issue, Mr. Keslassy and the firm treated her professionally. This litigation was undertaken responsibly.

[79] The Plaintiff referred to the conduct of the Toronto Star in asking for punitive damages. Such damages against the Toronto Star should be considered in this suit if it is proven Ms. Salmon would have obtained them against the Toronto Star. Accepting that proposition, there is nothing in the conduct of the Toronto Star that would warrant such punitive damages. There was no malicious intent, the defamation was minor, and the conduct of the Toronto Star, even assuming it was liable, demonstrated an intent to adhere to professional journalistic standards. Here, I note that I do not accept any evidence to the contrary as given by Ms. Salmon. I find that awarding punitive damages serves no rational purpose here. There is no need for deterrence, punishment, or denunciation. General compensatory damages will suffice.

D. CONCLUSION

[80] In conclusion, Ms. Salmon’s action is dismissed.

[81] If the issues of costs cannot be resolved between the parties, I will entertain written submissions, each one limited to two pages regarding when the issue of costs should be resolved, and the nature of the costs award. The Defendants shall file within 20 days of this decision. The Plaintiff shall file within 10 days thereafter. There will be no reply submissions without leave of the court.

Justice S. Nakatsuru Released: April 12, 2019

COURT FILE NO.: CV-13-472965 DATE: 20190412 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HILARY SALMON Plaintiff – and – JONATHAN KESLASSY and GARFIN ZEIDENBERG LLP Defendants

REASONS FOR JUDGMENT NAKATSURU J. Released: April 12, 2019

[^1]: I note that in this affidavit Ms. Salmon says that when she went to complain to the police, the police officer called Kate Allen. She avers that the officer put Ms. Allen on speaker phone and thus Ms. Salmon could overhear the conversation. I find this somewhat implausible that a police officer would do this in these circumstances. I also find this a remarkable coincidence with her present claim that Mr. Keslassy’s conversation was also on speaker phone. All that said, I am not prepared to draw any adverse inference from this coincidence.