Court cases —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."
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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.
Jurisdiction
The judge ruled that he had jurisdiction to hear this case.
Judgment
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.
Conclusion
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.
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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 vers5@yahoo.com, 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 vers5@yahoo.com because the user did
not have a yahoo.com account.
Conclusion
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.
—CondoMadness
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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.
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Taft Management v Gentile
Small Claims Court—Toronto
SC17-2456
(ongoing)
This is an interesting case for several reasons:
1.
|
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.
|
2.
|
The Respondent is claiming an anti-SLAP defence in Small Claims Court. |
3.
|
The Plantiffs are requesting that the lawsuit be sent to Superior Court.
|
4.
|
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:
1.
|
dismissal of this case because his comments were made in the public interest;
|
2.
|
damages in the amount of $25,000 because the plaintiffs acted in bad faith in launching this lawsuit; and
|
3.
|
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
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!
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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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