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 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.
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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