Ian Burns, Author at Winkler Dispute Resolution

The Yukon Court of Appeal has sent a defamation case back to trial because of the inadequacy of the judge’s instruction to the jury, with a lawyer characterizing it as a “results-driven” decision as he felt the court did not like the original verdict.

The case in Senft v. Vigneau 2020 YKCA 8 deals with a defamation action brought forward by Angela and Michael Senft for allegedly defamatory comments made by Audrey Vigneau and Susan Herrmann. The Senfts had been involved in a dispute with a former friend, Daniele McRae, over the title to her house. The defendants claimed the Senfts were trying to force McRae out of her home and move her into a seniors’ residence, allegations which were posted on Facebook and in flyers sent out to the Dawson City community, as well as a GoFundMe page.

The Senfts commenced an action against Vigneau and Herrmann, who both later publicly apologized. At trial, Vigneau and Herrmann defended their comments by saying they were fair comment, but the Senfts replied by saying they had acted with malice in publishing the comments; a successful claim of malice would defeat any successful defence of fair comment.

The jury awarded damages to the Senfts, finding Vigneau and Herrmann had made the allegedly defamatory comments and acted with malice when publishing them. The jury made no finding with respect to the fair comment defence, and awarded the Senfts approximately $377,000 against Vigneau and approximately $432,000 against Herrmann.

But Justice Daphne Smith, writing for a unanimous Court of Appeal, set the awards aside and ordered a new trial. She ruled the trial judge erred in failing to determine whether the evidence adduced at trial raised a probability of malice before putting the question to the jury, and also failed to instruct the jury that express malice could not be considered unless they first determined Vigneau and Herrmann had established the defence of fair comment on a balance of probabilities and if established, in order to defeat the defence, that malice was Vigneau and Herrmann’s dominant motive in publishing the defamatory comments.

“In my opinion, as a matter of law, the judge was required to make a determination on whether the evidence adduced raised a probability of malice before instructing the jury on the issue,” she wrote in her March 27 decision. “His failure to do so constituted an error of law reviewable on a standard of correctness. In the circumstances of this case, this error could not be rectified after- the-fact on appeal.”

Justice Smith noted the lower court judge “properly recognized that, months after the trial had been completed, he could not undertake a detailed review and weighing of the evidence in order

to remedy the oversight of failing to make the required ruling.”

“This court is faced with the same problem. Where the issue of express malice raises a question of fact, an appellate court is generally not well-suited to step in and undertake a detailed evidentiary analysis as a matter of first instance in order to determine if the evidence raised a probability of malice,” she wrote. “This court is in no position to undertake a detailed review and analysis of the evidence for the purpose of determining if it raised a probability of malice, where the trial judge himself found the delay had made it impossible for him to undertake the task. In my view, the only way the error in this case can be rectified is to order a new trial.”

Howard W. Winkler — Howard Winkler, Winkler Dispute Resolution

Howard Winkler of Winkler Dispute Resolution said the lesson of the decision is that “close attention has to be paid to the technical requirements of the law, and that if you fail to appreciate those technical aspects of the law then the decisions of the court are going to be open for review.”

“In terms of remitting it back for consideration [the Court of Appeal] had two choices — they could have sent it back to the trial judge or ordered a new trial. Given the statement by the trial judge that he could no longer, given the length of time, undertake a detailed review in weighing the evidence they were incapable of sending it back to the trial judge for reconsideration, so they were forced therefore to order a new trial,” he said. “However, the question remains of whether the Court of Appeal could have substituted its own decision and brought an end to the litigation, but I think given the circumstances of this case, given that it was a jury trial and jury verdict it probably would have been very difficult for them to do that.”

But Winkler said he was of the view that the Court of Appeal’s decision was very results-driven, in that he felt the court didn’t like the jury verdict and was inclined to find a basis to allow the appeal.

“You never know the decision-making process for a jury and that is why they are very difficult to overturn,” he said. “So, when I read this case, it was likely the jury was wrong in finding the

defendants were motivated by malice, which is why on the face of it, it appears to be an unfortunate decision. But what the court needed to do was find technical deficiencies in the judge’s decision-making and instructions to the jury to open the door to the opportunity of allowing the appeal.”

Counsel in the case did not respond to a request for comment. The Yukon Court of Appeal is made up of justices of the British Columbia Court of Appeal and justices from the Yukon Territory, Northwest Territories and Nunavut.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.

The Technical deficiencies opened door for Yukon Appeal Court to overturn defamation verdict: lawyer was published by The Lawyer’s Daily on April 9, 2020

In Grant v. Torstar Corp. 2009 SCC 61, the Supreme Court of Canada modified the law of defamation to provide greater protection for communications on matters of public interest. One of the factors relates to the concept of “reportage,” which are statements attributed to someone other than their publisher. The ruling stated the “repetition rule” (which is that a person who repeats a defamatory statement made by another is just as liable as the maker of the statement)did not apply to reportage on a matter of public interest, provided that four prerequisites are satisfied: namely, the statement is attributed to a person; the report indicates its truth has not been verified; the report sets out both sides fairly;and the context of the statement is provided.

But Justice Tysoe held, even if the reportage exception is made out for some statements in the publication, “it is still necessary to determine whether the publication was responsible because the defence is to be applied to the publication as a whole.”

“[Justice Dardi] applied the Grant responsibility factors to the statement in isolation and the publication the defence of responsible communication was not established,” he wrote. “This approach gave no effect to the reportage exception. This would not have occurred if the judge had properly interpreted [Grant] to mean that it was the publication as a whole that is required to have been responsibly made.”

The court then allowed Canwest’s appeal, and also dismissed a cross appeal by Wilson in which he argued Justice Dardi failed to consider the fact William Lougheed had committed the statutory tort of harassment against Wilson in determining whether the publication of the article was in the public interest. Justice Tysoe was joined by Justices Mary Saunders and Harvey Groberman in his decision, which was released Nov. 27 (Wilson v. Canwest Publishing Inc./Publications Canwest Inc. 2018 BCCA 441).

Daniel W. Burnett, Owen Bird Law Corporation

Daniel W. Burnett of Owen Bird Law Corporation, who represented Canwest and O’Connor, said the case is important in terms of how the responsible communication defence is applied. He noted, while the Supreme Court in the Grant case referred briefly to the need to take an overall approach, this was the first case which grapples in more detail with a situation where a judge says she will deal with one piece of a story differently.

“The whole point of the responsible communication defence is if something is in the public interest and the author exercised due diligence then we will excuse errors,” he said. “So, if a court can carve off the part that’s the error, which almost by definition is going to have some failings that occurred in order to get there, then effectively you’ve punctured the defence. The Court of Appeal corrected that.”

But James Straith, who represented Wilson, said the decision “seems to extend the reportage defence” to the point that he is worried individuals may feel free to publish false items and then hide behind a defence of responsible communication. He said he and Wilson were weighing their options about whether to seek leave to appeal to the Supreme Court.

“The question that was being asked in the Court of Appeal was if you’ve got five chapters in a book and one is completely fictitious, can you even sue on that one chapter anymore?” he said. “Because they can say we got four of the five chapters right, so we win. I just find not just the outcome of this case but the wider implication of this kind of journalism getting the green light to be disturbing.”

Burnett said he didn’t share Straith’s concerns, saying the decision made it quite clear reportage doesn’t stand as a defence unto itself.

“In this case all of the elements set out in the Grant case for reportage were met in terms of the story at issue, but then in addition to that they had to decide that the story was overall handled responsibly,” he said. “Reportage doesn’t mean you can just quote somebody and you’re immune — the quotation must be itself in the public interest and must be reported making it clear it’s unproven and getting the other side of the story. There are some statements that are very much in the public interest whether they are true or not.”

Howard Winkler of Winkler Dispute Resolution noted there has been a trend in recent cases and in litigation such as anti-SLAPP measures to balance interests more towards freedom of expression rather than protection of one’s reputation.

“What was significant about the development of this responsible communication defence was for the first time it allowed a defendant to be wrong, to publish something that was false and still escape liability,” he said. “And what this case perhaps does is that it further tips the balance in favour of the protection of expression by treating all of the charges in the communication as a single publication rather than treating one or more of them as separate charges.”

Winkler said Straith has a point about his concerns surrounding the reportage defence, but added the courts will have to be very sensitive to the consideration of whether something constitutes a single charge or whether it contains separate and distinct charges.

“And if the court properly undertakes that analysis then the media shouldn’t be able to just throw in frivolous and perhaps false allegations into what otherwise would be a matter of public interest it,” he said. “If that happens then hopefully what the court would decide is what they’ve thrown in constitutes a separate charge and treat it separately. In this case the court found this wasn’t the case, but hopefully in the future this decision and its application won’t be abused to permit that kind of situation.”

The B.C. Appeal Court ruling on responsible communication tips balance in favour of free expression: lawyer article was published by The Lawyer’s Daily on December 4, 2018