Court cases —Defamation
Wan v Lau
McNairn v. Murphy
CCC No 282 v Yahoo! Inc—Norwich order
Defamation—fair comment—matters of public interest
Taft Management v Gentile
Who defines defamation?

Wan v Lau
Superior Court of Ontario
Court File No: CV-11-424289
Before : Justice D.L. Corbett
Date: 07 January 2016

Mr Wan and Mr Lau both own commercial condominiums in First Markham Centre, a 107 unit commercial condominium near Fairburn Drive and Rodick Road in Markham, Ontario.

Mr. Lau had reason to believe that Mr. Wan submitted two forged proxies at an AGM. In response he sent an e-mail to 14 individuals accusing Mr Wan of dishonesty. Although he thought that he had all the facts, and his accusation was true, in reality he did not; the proxies were genuine.

When he found out he was wrong, Mr. Lau sent a retraction by e-mail to the original recipients.

What makes this judgment interesting is the detailed explanation on the legal implications of defamation.

Analysis (b) Analysing the Law in this Case
Starting at paragraph 27, Justice Corbett explains the mechanics of defamation in detail. In this case he explains each of the following:

• The Impugned Words are defamatory of Mr Wan
• The Impugned Words Are Not True
• The Impugned Words Are Not Fair Comment
• “Responsible Communication” is not an available defence
• Qualified Privilege Applies in this Case
• Qualified Privilege Is Not Defeated By Malice
• Overbreadth of Publication
• Substance of the Retraction
• Damages

It would be best to read the judgment in full (click on the link above) to fully understand how the law was applied in this case.

Summary and Order
"The impugned words are defamatory of Mr Wan. They are untrue.

The impugned words were published to the board of directors and some condominium unit holders by Mr Lau on an occasion of qualified privilege. Mr Lau honestly believed that the words were true. There is no evidence of malice in the publication of the impugned words. Therefore the defence of qualified privilege succeeds and the claim must be dismissed."


McNairn v. Murphy
Ontario Superior Court of Justice
Court File No: 15-65834
Date:  06 April 2017
Before:  Justice Beaudoin

The Plaintiff, Mr. McNairn, is a lawyer who resides and practices in Ottawa, Ontario. The Plaintiff and his wife, bought a condominium unit at the Palms Condominium in Jaco, Costa Rica in April 2014.

The owners of their condo corporation discovered that their property management company was being investigated for fraud and there was concerns about how this company was running their corporation.

Mr. McNairn worked hard to get the owners organized and he became president of the new condo board. The directors hired a new management company.

However a disgruntled owner's harassment of the new property management company was so aggressive that they quit. The president became discouraged so he resigned.

This resignation resulted in an e-mail by an owner, the Defendant Murphy, being sent to a number of owners in four countries, implying that the new property management company and the president had quit after accusations of theft.

This e-mail was followed by a second e-mail from Pene, a different owner, who happens to be a lawyer, that also implied that the Mr. McNairn was a bully and was unethical.

The Plaintiff then commenced a lawsuit for defamation against both defendants. The application was not defended.

The judge ruled that he had jurisdiction to hear this case.

While Murphy’s conduct can perhaps be characterized as reckless, Pene’s conduct must be regarded as calculated. Given the lack of the relationship between the Plaintiff and Pene, it is difficult to draw any other inference than that Pene’s actions were deliberately calculated to cause harm to McNairn and justify a finding of malice.

Having regard to the seriousness of the statements made in emails, and the actual malice and extent of the defamation made by an individual in the legal profession, I assess damages as follows:

As against the Defendant, Murphy:
$50,000 in general damages,
$10,000 in aggravated damages,
$10,000 in punitive damages
As against the Defendant, Pene:
$70,000 general damages,
$10,000 in aggravated damages, and
$10,000 in punitive damages
The Plaintiff is entitled to pre-judgment and post-judgment interest as well as costs. I fix his costs on a substantial indemnity basis in the amount of $20,000 as against the Defendant, Murphy and in the amount of $4,000 as against the Defendant, Pene.

This is a situation of nasty condo politics hurting an owner who worked hard and in good faith to serve the condo community. It also shows that there may be serious consequences when condo owners defame others and who then refuse to retract their statements and make a full apology.


CCC No. 282 v. Yahoo! Inc
Superior Court of Justice—Ontario
Court File No: 17-71847
Before:            Madam Justice Robyn M. Ryan Bell
Date Heard:    18 July 2017

Counsel:   Rodrigue Escayola for the Applicant
No one appearing for the Respondents

For an explanation of a Norwich order, please read: Norwich orders: You can't be anonymous on the internet after all.

CCC #282 sought a Norwich order requiring Yahoo! Inc. and Yahoo! Canada Co. to disclose information it says is necessary to obtain the identity of the author of allegedly defamatory emails sent to owners and occupants of the condo corporation.

The emails were sent from the email address, following the resignation of the Condo's super on November 22, 2016. In the first email of November 23, 2016, the author wrote in part:
…However, having spoken to Rameez [the former superintendent] on several occasions, I understand this issue has been brewing for a long time between him and another board member Ted Vicks and his contractor friend Art Nault. I understand this contractor has been given free reign at 50 Emmerson at the expense of us its owners under the leadership of Connie [the president of the board of directors] and the board who I understand has been turning a blind eye to the harressment [sic] of Rameez. I also understand Rameez has brought up this issue with his manager Michael Sargent, Connie, and other board members but no action has been taken or it seems we have not seen any action taken to rectify the problem or address it through these recent emails. Do I take it the board members and President are getting kickbacks and this is the only way to route [sic] out a problem? Where is the transparency in all this and why in these circumstances has the board not shown impartiality and justice.

Issues like this cannot be handled by the board in such a lackadaisical fashion…

A second e-mail sent on November 23, 2016, stated:
“Hoping the special meeting will be an opportunity for Rameez, the board and Art Nault to tell everyone exactly what transpired…”

By e-mail, the condo president asked the author to identify himself or herself. In a November 24, 2016 response, the author wrote:
My dear Connie, who I am has suddenly become irrelevant. I was stating the truth as told to me by dear Rameez. He has left our service because of the mistreatment and harassment he has received and the inability of the board to solve these problems when he urged you all.

A November 26, 2016 “cease and desist” email from the president of the board could not be delivered to because the user did not have a account.

In summary, the judge was satisfied that:
(i) The Condominium Corporation has demonstrated a bona fide claim of defamation.
(ii) Yahoo! and Yahoo! Canada, although innocent of any wrongdoing, are implicated in the alleged defamation because their services were used for publication;
(iii) Yahoo! and Yahoo! Canada are the only known potential sources of the information;
(iv) The costs of compliance are nominal and the Condominium Corporation has provided an undertaking to indemnify Yahoo! and Yahoo! Canada for their reasonable costs of complying with the order;
(v) The interests of justice strongly favour the Condominium Corporation obtaining the disclosure.

For these reasons, the judge granted the Norwich order.

I wonder how the author got the owners & residents' e-mail addresses. Sounds like it may be a disgruntled director or ex-director.


Defamation—Fair comment—Matters of public interest
The Lawyers Daily
Wednesday, January 03, 2018 @ 8:39 AM

McLaughlin v. Maynard, [2017] O.J. No. 5880, Ontario Superior Court of Justice, P. Hurley J., November 15, 2017

Motion by the defendant, Maynard, to dismiss the plaintiffs’ defamation action pursuant to s. 137.1 of the Courts of Justice Act (Act).

The plaintiffs, the Mayor and a Councillor of the Town of Mississippi Mills, claimed that the defendant defamed them in seven Facebook posts. The posts included statements that they discriminated against children with disabilities because parks would not be fully accessible to them, that the Mayor had “no morals or empathy” and that there was a “shocking level of corruption and law breaking” by him, Councillors and senior municipal staff.

HELD: Motion allowed.
The defendant met the public interest test.

The statements were about acts or omissions by the plaintiffs in the discharge of their public duties. Accordingly, the onus shifted to the plaintiffs to prove that they met the requirements of s. 137.1(4) of the Act: the proceeding had substantial merit; there was no valid defence; and the harm likely to be or that had been suffered by the plaintiffs as a result of the defendant's expression was sufficiently serious that the public interest in permitting the proceeding to continue outweighed the public interest in protecting that expression.

The plaintiffs showed that the proceeding had substantial merit, based on the posts that alleged that they acted in a discriminatory manner, were corrupt and engaged in law-breaking.

The plaintiffs did not show that the defence of fair comment was not available with respect to the alleged discrimination. The defendant was referring to their alleged contravention of regulatory legislation that was open to different interpretations of what it required.

The plaintiffs showed that that the statements about “no morals or empathy” and a “shocking level of corruption and law breaking” were not protected by the defence of fair comment or responsible communication. The defendant did not adduce sufficient evidence to support an honest opinion of that level of malfeasance.

However, the public interest in protecting the defendant’s expression surpassed the harm that could be caused by those statements.

It was important that people be free to express their disagreement with the acts or omissions of municipal politicians without fear of being sued.

The decisions of municipal politicians often had a direct and immediate impact on the quality of life in the community. People would be reluctant to express their opposition if they knew that their use of social media could result in a lawsuit by a public official unhappy with the criticism, with all the attendant stress and financial burden such litigation entailed.


Taft Management v Gentile
Small Claims Court—Toronto

This is an interesting case for several reasons:
A condo management company and its president is suing a minority condo director over two e-mails that he sent to the other four directors and an owner.
The Respondent is claiming an anti-SLAP defence in Small Claims Court.
The Plantiffs are requesting that the lawsuit be sent to Superior Court.
Shlomo Sharon, the owner of Taft warned the public in a condo industry magazine, and on his company's website, on the dangers of starting a lawsuit.

On 18 and 19 November 2016, Andrew Gentile wrote two e-mails to the other four directors of TSCC 2003. The two letters were in response to a threatening legal letter that was going to be sent to an owner who was a scrutineer at the last AGM and who was complaining about alleged ballot stuffing at that meeting and about the cost of repairs done in his unit.

Mr. Gentle believed that the e-mails would have remained confidential. However one of the directors passed the e-mails on to Taft Management.

The Plaintiff's claim
Taft Management and Pat Addeo, the co-plaintiff, claim that the e-mails contained numerous false and damaging statements about Taft and the president and that the accusations were malicious and they were intended to lower the plaintiffs in the estimation of right-thinking members of society.

The plaintiffs demanded apologies from Mr Gentile but what apologies he offered were insufficient.

As a result, the plaintiff's moved forward with this suit and seek $25,000 in damages and their expenses including pre-litigation legal fees.

The Defendant's position
Andrew Gentile is seeking:
dismissal of this case because his comments were made in the public interest;
damages in the amount of $25,000 because the plaintiffs acted in bad faith in launching this lawsuit; and
costs on a full indemnity basis.

Mr. Gentle takes the position that a relatively new section of the Courts of Justice Act seeks to discourage "SLAPP" lawsuits.

He also claims that his e-mails were sent on occasions of qualified privilege while honouring his duty as a director under sections 27 and 37 of the Condominium Act and he claims the defence of fair comment.

Harm done to public interest
The Defendant claims that Taft has threatened to commence litigation against several condo owners and that a culture of fear has been fostered as a result of their conduct. Mr. Gentile states that this case must be dismissed to restore the balance of power within the condo community.

The hearings
So far the case has been in court for three days with a fourth day scheduled in March 2018. The Plaintiff's are challenging the right of Small Claims to rule on an ant-SLAPP motion. They also want to move their case to Superior Court.

Costs are a concern as it may be a challenge for the successful side to be awarded anywhere near their legal costs in Small Claims Court.

Condominium corporation and the legal battle
Written by Shlomo Sharon
21 June 2014   
Here is a story:
Two peasants brothers were each left with a parcel of land by their late father. In between two parcels of land was a ditch. After they buried their father, one of the brothers asked the local lawyer to ensure that the ditch formed part of his parcel.

The next day, the other brother approached the same lawyer with the same request. The lawyer explained that he had a conflict because he was already acting on behalf of the other brother, but he offered to write a note to the lawyer in the next town asking him to act on his behalf.

When the lawyer in the other town read the note, it said:
We have here two peasants. If you and I act correctly, each one of us will end up with one parcel of land, and the two brothers will end up in the ditch.

The moral of the story: think twice before you start litigation because you may find yourself in a ditch!


Who defines defamation?
Habitat Monthly
By Victor M. Metsch
21 February 2019

In these contentious times, politics at all levels – even at the level of co-op and condo board elections – tend to get ugly. Charges and counter-charges circulate with lightning speed on electronic platforms. One recent condo board election led to a lawsuit over the truth of charges emailed by one of the candidates. The case turned on the definition of the D-word: defamation.

Sandra Peterson, a unit-owner at Edgemont at Tarrytown Condominium and a former president of the board of managers, was running for election against fellow unit-owner Mary Ellen Maun. During the election process, Maun sent emails to other unit-owners which, Peterson claimed, were false and defamatory and sent with the specific intent to damage Peterson’s good name and reputation in the community.

Maun’s emails accused Peterson of inappropriate use of the condominium’s money and labor for her own personal gain. They also accused Peterson of deliberately reducing the number of board meetings and severely restricting unit-owners’ communication with the board. Peterson claimed that Maun also repeated false, defamatory and misleading statements to unit-owners during face-to-face encounters.

Peterson sued. Maun moved to dismiss the claim, arguing that her charges were backed up by board minutes and other documents that conclusively substantiated the truth of most of the statements contained in the emails. She argued that the remaining statements were either legally protected expressions of opinion or statements of fact that lacked defamatory meaning.

For the purposes of the motion, the facts alleged in Peterson’s complaint were accepted by the trial court as true, and the court was required to determine whether Peterson had a claim if she could prove those facts. However, the court was not required to accept as true mere legal conclusions lacking factual support, or factual claims that were contradicted by documents.

As to Peterson’s first claim for defamation, Maun submitted sufficient documentary evidence to conclusively establish, to the court’s satisfaction, the truth of the facts asserted in her emails. The parties were engaged in a contested election for president of the board of managers. In that context and surrounding circumstances in which the challenged statements were made, the court found that a reasonable reader would understand that much of the emails were likely opinion and not facts.

The unit-owners in a condominium share the common interest of protecting and preserving their homes and financial investments. Unit-owners are “conditionally privileged” to communicate among themselves matters defamatory of others which concern their common interests. Such privilege extends to a communication made by one person to another upon a subject in which both have an interest, such as a board election. Privileged statements are not actionable, although the protection provided by a qualified privilege may be lost if it is shown that words were spoken or sent with malice – that is, with knowledge that the statement was false or made with reckless disregard as to whether it was false or not.

The court found that there was no evidence of malice by Maun that would nullify the common interest privilege because her emails were sent to owners in the condominium with the dual purpose of trying to discredit Peterson’s ability to be president, while, in the bargain, winning the presidency for herself.

The court also summarily dismissed Peterson's claim against Maun for intentional infliction of emotional distress. In this case, the court concluded that none of the emails sent by Maun could be described as being outrageous, atrocious or utterly intolerable in a civilized community, as required to establish such a claim.

Lesson learned: Contentious elections may lead to claims of defamation, and such claims may lead to litigation. But “truth” or “opinion” are the best defenses. So election contestants should stick to the facts, or label their statements as opinion.

Victor M. Metsch is of counsel at the law firm of Smith, Gambrell & Russell.

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