An Ontario judge has thrown out a major regional airline’s $10-million libel action against one of its former pilots, ruling the lawsuit had an unduly chilling effect on discussion of air safety.
Alan Eugeni’s book about his experiences at Air Georgian — where his starting salary as a pilot was $32,000 — was at times provocative and sensationalist and lacked input from the airline, said Justice Shaun O’Brien.
But she found the public importance of debate about the company’s safety record outweighed any damage done to the firm, an Air Canada sub-contractor.
“Mr. Eugeni spoke out on a matter of significant public importance,” concluded the judge in a 16-page written decision released this week. “He caused limited harm to Air Georgian with his self-published book, but was silenced by a much more intimidating litigant … I consider the balance to weigh in favour of protecting the expression.”
The pilot had asked that the case be dismissed before trial under the province’s relatively new anti-SLAPP legislation, designed to combat defamation suits that suppress important public discourse. (SLAPP stands for “strategic lawsuit against public participation.”)
Eugeni criticized Air Georgian’s approach to safety and maintenance in a book and in interviews with the National Post, criticisms that were echoed by other current and former crew members with whom the Post spoke as part of a 2017 investigation into the airline’s safety record. A Transportation Safety Board report last year also raised systemic concerns about the airline’s maintenance practices.
Georgian, which carries 1.5 million passengers a year on 63,000 short-haul flights under the Air Canada Express banner, has strenuously rejected the complaints, noting it is one of just a handful of Canadian carriers that have passed a rigorous international safety audit.
Air Canada ended its contract with Georgian after the Post’s investigation. Their deal is slated to end next February as another company — Jazz Aviation — takes over its flights. Both Air Georgian and Air Canada have denied the end of the contract is connected to the Post’s investigation or to Georgian’s safety record.
In the wake of the Post’s reporting Georgian threatened to sue both the newspaper and another pilot, but proceeded only with a suit against Eugeni.
The airline said that while the ruling validates some of its concerns, it disagrees with the bottom line and plans to appeal.
The judge’s assessment of Eugeni’s book “confirms the position (Georgian) has taken from the outset — that Mr. Eugeni has been pursuing his own agenda with little regard to the objective facts,” said Air Georgian lawyer Matthew Law.
The ruling should also give “considerable pause” to the Post in repeating such allegations, Law said.
Eugeni said Wednesday it felt “wonderful” for the case to be dismissed, and that he stands by everything he has said about his former employer.
Under the SLAPP process, the judge first had to decide if the airline had a reasonable case, and if there was a reasonable possibility that Eugeni’s defences could fail at a trial.
One of those defences was that the statements were true, but the judge noted that Air Georgian had submitted evidence contradicting some of Eugeni’s allegations, including claims he experienced four emergency landings and that all his simulator training was in the middle of the night.
“His wording at times is provocative and sensationalized,” said O’Brien. “While Mr. Eugeni’s focus was on telling his own story, he appears to have made minimal efforts to verify his serious allegations.”
Regardless, the pilot’s lawyer, Howard Winkler, conceded for the purpose of the pre-trial motion that a reasonable trier could rule Eugeni had no valid defence.
That meant the case came down to whether the public’s interest in hearing Eugeni’s views about air safety outweighed any harm done to Georgian’s reputation.
O’Brien said that possible harm — mostly an increased turnover in the company’s staff — seemed minimal and was more likely to stem from other reasons, like an industry-wide shortage of pilots and articles in the Post. Eugeni’s book sold only 247 copies before Georgian convinced Amazon to remove its listing, and the libel suit prompted the pilot to take down his own website selling it.
Meanwhile, the book’s disappearance suggests the suit impeded the pilot’s ability to express himself, said the judge.
“He has said he does not feel free to pursue an important conversation about the safety of regional airlines and, in particular, Air Georgian,” wrote O’Brien. “In other words, actual libel chill is in issue here.”
Winkler said the ruling is among about a dozen so far under Ontario’s 2015 SLAPP law, which will be further tested in two Supreme Court of Canada appeals this November.
“It’s a victory for freedom of expression,” he said of the decision. “Its application was exactly as the legislation intended, and that is to end costly, protracted litigation by those in a superior power position against those who are speaking out in the public interest.”