COURT FILE NO.: 6025/17SR
DATE: 2019-10-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
David Leigh Wilson
Plaintiff
– and –
Lisa Wilson, Carisa Wylie, and Darcy Link
Defendants
R. A. Dinnen, for the Plaintiff
Lisa Wilson, Carisa Wylie, Self-Represented
Paul Bragagnolo, for Darcy Link
HEARD: October 1, 2019
REASONS FOR JUDGMENT
R.D. Gordon, J.
Overview
[1] In a series of Facebook posts and conversations that took place in the second half of 2015, the defendants are alleged to have defamed the plaintiff. This trial was held to determine if that was so and what, if any, damages are appropriate.
Factual Background
[2] The plaintiff is 66 years of age. He is a mechanic offering roadside service to all sorts of motorists, but primarily to truckers.
[3] The plaintiff and the defendant Lisa Wilson were married. They separated in May of 2015.
[4] Over the ensuing six months, Ms. Wilson made the following posts on Facebook, which the plaintiff says are defamatory:
May 15: “To be cheated on is one thing, but to cheat and sleep with their own daughter is another”. One of her friends on Facebook asked, “That actually happened to someone you know?” Ms. Wilson responded: “Me. Dave with his daughter.”
May 16: “Mine just had to sleep with his biological daughter for me to move on.”
June 26: “Dave breaking court order and removing trailers off property. Taking licence plates, etc. against court order. Mr. Untouchable. Not even a judge can tell him what to do!”
Aug. 15: “The truth [is] that my ex and our company are totally broke and he is living off our line of credit.”
Aug. 20: “Thank you for yet again coming into my house setting off the motion detectors. Going through my stuff leaving grease on the bedroom floor and entranceway. And can’t forget unlocking the patio door. Damn sure makes a woman feel safe. Please just move in with Donna and leave me alone. If she is the only woman ya love then show her and stock her and be happy.”
Sept. 16: “Court order says nothing is to leave property but yet he gets Cobalt Car Clinic to move stuff.” An image of the court order was also posted.
Sept. 25: A meme that said: “You’re dating my ex? You do realize this means I know how pathetic your sex life is, right?”, along with her own statement: “Like shoving a marshmallow into a toaster is what his 2nd ex-wife before me called it.”
Sept. 26: “So sorry Dave stole all Al’s money and left you unable to get all the cancer treatment you need. Karma will pay him back one day. To think Al trusted him as a trustee to his will. Poor Al must be turning in his grave with anger.”
Oct. 3: “My ex-husband doesn’t want his own dog of 8 yrs or any of our dogs but yet when I load up the outside dog run he video-tapes us and cries to his lawyer that I’ve taken the dog run. How sad is that.” A friend responded: “He’s pathetic!” and Ms. Wilson responded: “He was labeled a psychopath and the definition was sent to me. Wow it describes him to a tee.” Another of her friends asked: “Has he been investigated yet?” to which Ms. Wilson responded: “He has a criminal lawyer that he has hired to protect him…wants animals put down but wants the run cause all 3 of his girlfriends have dogs. Yet doesn’t want his own dog that was loyal to him for over 8 years.”
Oct. 9: “Update. Bank won’t lend ex-husband money to take over mortgage, He was supposed to buy me out on the 9th of October and can’t get financing. Now I’m getting contacted from companies he hasn’t paid that are going to disconnect his business services.”
Oct. 21: “Help. Dave Wilson (Crazy Dave) my ex-husband stole my dog this morning. OPP is looking for him. Please help us find her. Dave and his ex-wife Beverley Nightingale who he is with will not hesitate to kill her.”
Date Unknown:
“Dave and his ex-wife and girlfriend have stolen all my horse stuff. Hope they enjoy my stuff. They even stole the security camera system to make sure the evidence is gone. Today my last horse is gone. For the first time in years I no longer own any horses. Hope Dave is happy.”
[5] The defendant Carisa Wylie is Lisa Wilson’s daughter. The evidence of Monica Tailleur is that Ms. Wylie spoke to her in a crowded restaurant and said that “Crazy Dave” and her mother had separated because Dave was sleeping with his biological daughter. The evidence of Darlene Woods is that Ms. Wylie spoke to her in a different crowded restaurant and said that her mom and Dave were not together anymore because Dave slept with his daughter and that her mom had Dave charged because he stole her dog.
[6] The evidence of Catherine Hastings and Natasha Hastings is that the defendant Darcy Link spoke to them at a yard sale and said that Dave and Lisa had split up because she has evidence that Dave was having an affair with his daughter. Ms. Link claimed to have seen pictures that Lisa took from Dave’s phone of his daughter in the nude and said: “What kind of a man keeps nude photos of his daughter on his phone?” On another occasion Ms. Link is said to have made the following statement to Catherine Hastings: “Well if your friend hadn’t broken into our house and stolen all of ours, I would not need to buy more.” When Ms. Hastings asked which friend, Ms. Link replied “Dave Wilson”.
[7] The plaintiff maintains that all allegations of incest, theft and breaking and entering are categorically untrue, as are the statements that he or his company were in financial difficulties. He says that his reputation has been harmed by these statements and that his business suffered considerable loss as a result.
[8] This was an action started under the simplified procedure. By order of Ellies J. made March 20, 2018, it was determined that there would be a summary trial with a requirement that the defendants file their affidavit evidence and documents by April 3, 2018.
[9] When, at a case management conference on April 25, 2019, it became apparent that no affidavits had yet to be filed by the defendants, Wilcox J. made an endorsement that if they wished to file affidavit evidence beyond the time limit set by Ellies J., they need to bring a motion on notice well in advance of trial with drafts of the affidavits in question.
[10] No affidavits were filed. In advance of the case management conference of April 25, Ms. Wilson did file a brief containing many documents to which she wished to refer. None were appended to any affidavit. None were properly proved. The Defendants filed no notice seeking to cross-examine on any of the affidavits filed by the Plaintiff.
[11] In the result, this trial proceeded on the affidavit evidence filed by the plaintiff and the exhibits referred to therein as contained in the affidavit of documents that was made Exhibit 1 at trial. The plaintiff himself testified and was subject to cross-examination.
The Applicable Law
[12] The plaintiff’s claim of defamation includes both libel and slander.
[13] To prove a case in libel, a plaintiff need establish three elements: (1) That the words refer to him; (2) that the words have been published to a third party; and (3) that the words complained of are defamatory of him, in the sense that they would tend to lower his reputation in the community in the estimation of reasonable persons. If these three elements are established, the law presumes the words to be false, and that the plaintiff has suffered general damages. [See Grant v. Torstar Corp., 2009 SCC 61, [2009] S.C.J. No. 61]
[14] The amount of general damages to be awarded for libel is the amount assessed by the court to be appropriate to compensate the plaintiff for loss of reputation and injury to his feelings; to console the plaintiff; and to vindicate him so that his reputation may be re-established. [See Walker v. CFTO Ltd., 1987 CanLII 126 (ON CA), [1987] O.J. No. 236 (Ont. C.A.)]
[15] A plaintiff may also be awarded “actual” or “special” damages for specific losses that are proven to have resulted from the libel. [See Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] S.C.J. No. 69]
[16] The court may also award punitive damages where the degree of misconduct is so substantial that it offends the court’s sense of decency. [See Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] S.C.J. No. 64]
[17] When a defamatory statement is communicated orally, as opposed to in writing, there is generally an obligation on the plaintiff to prove “actual” or “special” damages. There are exceptions rendering slander actionable without proof of such damages, including when the slander imputes the commission of a criminal offence.
Analysis
Did the Words Refer to the Plaintiff?
[18] A reference to the plaintiff will often be obvious when his name is stated in the words which are at issue. Where the plaintiff’s name does not appear, it must be shown that the words used or the circumstances attending the publication are such as would lead reasonable persons to conclude that it was the plaintiff to whom the pefendant referred. [See Grant v. Cormier-Grant, 2001 CanLII 3041 (ON CA), [2001] O.J. No. 3851 (C.A.)]
[19] In assessing the various Facebook entries made by Ms. Wilson, it is important to note that comments she posted would be exposed to her friends. Friends who would be likely to know the name of her husband and the existence of her marital woes. In that context, references to “Dave” or to “My ex” or allegations that would clearly arise from their separation would lead reasonable persons reading the comments to conclude that she was speaking of the plaintiff.
[20] I am satisfied that all words refer to the plaintiff.
Were the Words Published to a Third Party?
[21] Where the defamation alleged is slander, the evidence is that the words were communicated orally to the recipients.
[22] Where the defamation alleged is libel, the evidence establishes that the words were published on Ms. Wilson’s Facebook page either to her friends and followers or in response to comments from a friend or follower.
[23] I am satisfied that this element is proved.
Were the Words Defamatory of the Plaintiff?
[24] The defendants’ statements to the effect that the plaintiff was in a sexual relationship with his biological daughter are clearly defamatory. Any reasonable person’s view of the plaintiff would be lowered by learning such a thing.
[25] Ms. Wilson’s statements to the effect that the plaintiff was, from time to time, acting in specific contravention of court orders are also defamatory. That someone would willfully act in contravention of court orders would lower the reputation of that person in the eyes of the community.
[26] Ms. Wilson’s statements that the plaintiff stole from or broke into her home are defamatory, including the statement that he had stolen her dog. Notwithstanding Mr. Wilson’s admission that he had lied to police, had in fact taken the dog, and subsequently returned it, the fact remains that on the evidence before me, the dog was his to take. Indeed, in Ms. Wilson’s own Facebook entry of October 3, she admits that the dog was his.
[27] Ms. Wilson’s description of the plaintiff as an abusive bully and psychopath are defamatory as they would clearly lower his reputation in the eyes of a reasonable person.
[28] With respect to Ms. Wilson’s post concerning the plaintiff’s sexual abilities, it is my view that reasonable persons would regard this as an insult, or vulgar abuse rather than lowering Mr. Wilson’s reputation in their eyes.
[29] With respect to Ms. Wilson’s posts concerning the plaintiff’s finances, it is my view that reasonable persons learning that his bills could not be paid or that his business was failing, particularly in the known context of his separation, would not think less of him as a result.
Damages
[30] The nature of the defamation in this case is serious. However, the context in which the comments arose, namely upon a marital separation, and the outrageousness of the incest allegation on its face (that he would be sexually involved with his 43 year old daughter), render it less likely to be believed. Although the plaintiff was understandably upset and angered by the various statements made, it is of relevance that none of the persons who provided evidence to the court believed the statements to be true.
[31] The libel alleged was restricted to posts on Ms. Wilson’s Facebook page. I have no evidence of how many friends she had on Facebook, whether her comments were shared beyond her Facebook page, or otherwise the audience the comments may have reached. However, that the defamation took place over several months is an aggravating factor.
[32] The plaintiff argued that his reputation was particularly important to his employment and that the defamation had adversely affected him in that regard. However, there was no independent evidence to substantiate that those with whom he might be expected to deal had refused, or that his position was one of particular trust or standing that would likely to be affected by the statements made by the defendants.
[33] Having regard to all of these factors, an appropriate award of general damages against the defendant Lisa Wilson is $15,000.
[34] With respect to the slander by Carisa Wylie and Darcy Link, although the content was serious, there is no evidence that it was overheard by anyone other than the persons to whom the comments were directed, and they did not believe the comments. Nonetheless the comments alleged criminal activity by the plaintiff, and it is appropriate to award some measure of damages even though there is no provable loss by the plaintiff. General damages of $500 against each of them is appropriate in the circumstances.
[35] The plaintiff led evidence of actual or special damages, namely losses incurred by his business which he attributes to the defamation. However, I note that the loss, if any was incurred as a result of the defamation, was that of the corporation 1776876 Ontario Inc, which is not a party to this action. In any event, I am not satisfied that any decrease in business income was as a result of the defamation, particularly given the plaintiff’s inability or refusal on cross-examination to provide meaningful testimony concerning the financial statements and tax returns of the company.
[36] The context and content of the defamation, although serious, does not rise to the level of maliciousness, oppressiveness or high-handedness required to award punitive damages. Punitive damages are intended to deter the defendants from similar conduct in the future. I have little doubt that the damages award in this case, along with the time and cost of participating will have the required deterrent effect.
The Counterclaim of the Defendant Lisa Wilson
[37] Ms. Wilson made a counterclaim, however there was no evidence led with regard to it with the result that it is dismissed.
Conclusion
[38] The plaintiff is awarded damages against Carisa Wylie in the amount of $500. The plaintiff is awarded damages against Darcy Link in the amount of $500. The plaintiff is awarded damages against Lisa Wilson in the amount of $15,000. The counterclaim of Ms. Wilson is dismissed.
[39] In the event the parties are unable to agree on costs they may make written submissions to me, not to exceed three pages plus attachments each, within 45 days.
The Honourable Mr. Justice Robbie D. Gordon
Released: October 3, 2019
COURT FILE NO.: 6025/17SR
DATE: 2019-10-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
David Leigh Wilson
Plaintiff
– and –
Lisa Wilson, Carisa Wylie, and Darcy Link
Defendants
REASONS FOR JUDGMENT
R.D. Gordon, J.
Released: October 3, 2019