THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 21 Date: 2013-03-01 Between: Docket: CACV1973 Dr. Stan Rubin and Glenn Ross, Sam Nowaselski, and Canadian Union of Public Employees, Local 1975 Respondents Coram: Klebuc C.J.S., Lane Jackson JJ.A. Counsel: Catherine Sloan and Paul Clemens for the appellant Andrew Mason for Glenn Ross, Sam Nowaselski and Canadian Union of Public Employees Local 1975 Appeal: From: 2010 SKQB 249 (CanLII) Heard: September 14, 2012 Disposition: Appeal allowed Cross-appeal dismissed Written Reasons: March 1, 2013 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Chief Justice Klebuc The Honourable Mr. Justice Lane Jackson J.A. I. Introduction [1] This appeal concerns the extent to which the principle of qualified privilege applies to defamatory statements made by a union regarding a member of the employer’s management. The trial judge held that the principle of qualified privilege protected the union and its representatives when the latter republished a grievance defaming a member of management by falsely accusing him of having participated in the harassment of an employee. He fixed a provisional award of damages of $25,000 (see: 2010 SKQB 249 (CanLII), [2010] 12 W.W.R. 271). [2] I have concluded that the trial judge erred by finding the defamatory statements are protected by qualified privilege. I would allow the appeal and fix general damages at $100,000. [3] The parties to this appeal are Dr. Stan Rubin on the one side and the Canadian Union of Public Employees, Mr. Glenn Ross, and Mr. Sam Nowaselski on the other. Dr. Rubin is the former Director of the Veterinary Teaching Hospital at the Western College of Veterinary Medicine, University of Saskatchewan. He is the appellant in this appeal and the respondent by virtue of cross-appeal. will refer to him by his name. [4] At all relevant times, Mr. Ross was the President of the Union, and Mr. Nowaselski was the senior grievance officer for the Union. Mr. Ross and Mr. Nowaselski played integral roles in preparing and publishing the defamatory statements in question on this appeal. The Union, Mr. Ross and Mr. Nowaselski are the respondents to Dr. Rubin’s appeal and appellants by way of cross-appeal. For ease of reference, will refer to the Union and Messrs. Ross and Nowaselski collectively as the Respondents. [5] The defamatory statements arose in this context. The Veterinary Teaching Hospital, which will refer to as the Hospital, encompasses approximately 600 faculty, staff and students and serves approximately 12,000 members of the public each year, as well as functioning as teaching facility. Dr. Rubin became the Director in 2002. As the Director of the Hospital, Dr. Rubin was responsible for all major administrative and fiscal decision-making. [6] About 100 employees of the Hospital are Union members. One Union member and an employee of the Hospital, Ms. Bowman, played central role in what transpired in this case. Ms. Bowman believed that she was being harassed by some members of the faculty and some fellow Union members at the Hospital—and that the management of the Hospital was not doing enough to prevent the harassment. In 2001, she filed grievance that was resolved in her favour. She was granted significant remedies, including the right to return to the workplace in 2005. [7] Dr. Rubin was Ms. Bowman’s superior. Ms. Bowman and Dr. Rubin were friends, and he was supportive of her. The 2005 award was not in any way critical of Dr. Rubin; rather, it noted he had attempted to act as an advocate for her. [8] Ms. Bowman’s return to work in 2005 did not go smoothly. She believed two of her co-workers were continuing to harass her and complained about it on numerous occasions to Dr. Rubin. He would arrive at work to find Ms. Bowman waiting to see him. These sessions often ended with Ms. Bowman in tears. [9] Ms. Bowman’s return to work was coordinated effort among the Human Resources division at the University of Saskatchewan, the Union leadership and that of the Hospital. The return to work involved meetings attended from time to time by Mr. Ross and Mr. Nowaselski and, of course, Dr. Rubin. Generally, Dr. Rubin and the Union representatives had an excellent relationship. [10] In March of 2006, in spite of the efforts made to achieve better result, Ms. Bowman filed second Grievance Report alleging harassment at her workplace. [11] Importantly for this appeal, Ms. Bowman’s second Grievance Report accused Dr. Rubin of having “not only refused to prevent the harassment,” but of being “an active part of the harassment himself.” By way of remedy, the Grievance Report requested “[f]ormal and substantial discipline of Dr. Stan Rubin found to have been responsible for the harassment of [Ms. Bowman] or for failure to address and stop such harassment, including the removal of Dr. Rubin from his position as Director of the Veterinary Teaching Hospital….” The Grievance Report asked for “[a]ggravated and punitive damages in the amount of no less than $100,000 for the blatant violation of the Collective Agreement” (Appeal Book, pp. 52a-53a, emphasis added). [12] The Collective Bargaining Agreement between the University and the Union includes grievance procedure. By agreement, the parties bypassed the first step of the procedure and proceeded to the second step in accordance with Article 14.7, which allows the Union to refer written grievance directly to the senior University Human Resources Officer or that person’s designate. [13] In fulfilment of the second step of the grievance procedure, representatives of the Union and the Hospital appeared before Ms. Daigle, Associate Vice-President (Human Resources) for the University of Saskatchewan, on April 26, 2006. Ms. Bowman, however, did not attend the hearing. [14] On September 5, 2006, Ms. Daigle rendered her decision. She found that Ms. Bowman’s complaint had “no merit” and suggested that the University and the Union discuss other alternatives for Ms. Bowman. Significantly, Ms. Daigle stated “[i]t appears from the information provided by the union that her complaints are entirely unfounded and without substance” (Appeal Book, p. 208a, italics in original). [15] The Union decided to proceed to the next step of the grievance procedure, which was to refer the matter to arbitration. date for the start of that hearing was fixed for January 25, 2007. [16] In October of 2006, representatives of the Union prepared second document. Across the top of this document, the words “Notice Re: Harassment Grievance” were printed in bold lettering, in all capital letters at height of one centimetre. The Notice refers to and attaches the Grievance Report. The salient statements, taken from the Notice, are as follows: The attached grievance filed March 21, 2006 on behalf of CUPE member Pam Bowman raises serious issues with respect to personal harassment in the Western College of Veterinary Medicine and particularly at the Veterinary Teaching Hospital. Ms. Bowman had been returned to work after previous harassment complaint was upheld by the University and following resolution of matters relating to her reinstatement. The Union has worked to try and ensure that Ms. Bowman was able to return to harassment-free, non-toxic workplace environment but was forced to file this grievance when Ms. Bowman experienced renewed personal harassment after her return. You will note the Union is seeking significant remedies in this matter as set out in the grievance. By reply dated September 5, 2006 Barb Daigle, Associate Vice-President (Human Resources) denied the grievance maintaining that there was “no merit to the grievance” and that Ms. Bowman’s and the Union’s complaints were entirely “unfounded and without substance.” We disagree. This case is scheduled to be heard by an Arbitrator commencing January 25, continuing January 26 and from January 29 through February 2, 2007. The Arbitrator will make final and binding decision following the hearing on the merits of the grievance and if the grievance is allowed, on the remedies requested by the Union. The purpose of this notice is to request those who may have information with respect to the harassment of Pam Bowman to contact the following Local 1975 person: Sam Nowaselski (…) or the National Servicing Representative, Lois Lamon at …. If you do not have specific information with respect to Ms. Bowman, but have experienced personal harassment yourself at the University, please also advise the Union or Ms. Lamon so that the matter may be taken up by CUPE Local 1975. Contact your bargaining agent if you are not member of CUPE and have information on this matter or if you have experienced personal harassment yourself. copy of this notice and the grievance is also on the Local 1975 website. (Appeal Book, p. 51a; emphasis added) [17] The Notice Re: Harassment Grievance and the Grievance Report were then affixed together. At approximately noon on October 6, 2006, which was the Friday before the Thanksgiving weekend, Mr. Ross placed the combined document on eight public bulletin boards at the Hospital. As usual, members of the public, staff, faculty and students had access to the Hospital during this time period. [18] flurry of communications took place on October 11, 2006 wherein members of the University management expressed their concern to the Union leadership (Appeal Book, p. 287a). The University caused the Notices and Grievance Reports to be removed from the bulletin boards. An emergency meeting was held with Mr. Ross. [19] On October 12, 2006, Ms. Daigle wrote to Mr. Ross stating, inter alia, “[m]ore importantly, the posters attached copies of grievance document, which the University considers to be confidential. In so doing, the rights and privacy of others named in the grievance have been violated in that the grievance contains serious unfounded and slanderous allegations against professionals.” Ms. Daigle invited Mr. Ross to provide her “with the facts and data…to support the allegations made.” (Appeal Book, pp. 289a-290a; emphasis in original) [20] Sometime that week, Mr. Nowaselski wrote an article for the CUPE 1975 Mini Bulletin. In that article, he stated: Please find attached the Original Grievance for Pam Bowman along with an informational poster. If you have any information you would like to share on this grievance please phone the union office at and they will get hold of me and will discuss this further with you. (Appeal Book, p. 59a) The Mini Bulletin reproduced the Grievance Report and the Notice Re: Harassment Grievance. One difference between the Mini Bulletin and what had been published on the bulletin boards at the Hospital is that the Grievance Report, in the Mini Bulletin, precedes the Notice Re: Harassment Grievance and the heading of the latter is no longer in all capital letters. The Union mailed the Mini Bulletin enclosing the Grievance Report and Notice Re: Harassment Grievance to its 1400 members. [21] On October 16, 2006, the Mini Bulletin with its attachments was published on the Union’s website. [22] When the University learned that the Mini Bulletin had been published on the Union’s website, efforts were made to persuade the Union to remove the Notice Re: Harassment Grievance and the Grievance Report from its website. The Union declined to do so. [23] When Dr. Rubin received copy of the Notice Re: Harassment Grievance and the Grievance Report and learned that it had been posted at the Hospital and on the Union’s website, he became quite upset. He felt the republishing of the grievance undermined his authority. He testified that he began experiencing difficulties with staff and he came to believe his staff had lost respect for him. By February of 2007, he began to look for an equivalent position in the United States. [24] Following an unsuccessful bid to obtain what would have been an equivalent position with the same stature in the United States, Dr. Rubin resigned as the Director of the Hospital and returned to his previous position as fully-tenured Professor at the Western College of Veterinary Medicine. The resignation cost Dr. Rubin approximately $6,000 per year in wages, although he conceded that the new posting involved less stress. [25] On April 11, 2007, Dr. Rubin commenced an action in defamation against the Union and against Mr. Ross and Mr. Nowaselski claiming general damages “exceeding $200,000.” At that time, Dr. Rubin did not know about the mail-out to the Union members. After the action was commenced, the Union, on the advice of its solicitor, removed the Mini Bulletin from its website. [26] The Union, Mr. Ross and Mr. Nowaselski filed statement of defence pleading that the words they had published were not defamatory and, in any event, the words were protected by absolute and qualified privilege. They did not plead that the impugned words were true or that they were justified in publishing them. [27] After perceiving further difficulties in his job as Professor arising from the publication of the Notice Re: Harassment Grievance, Dr. Rubin eventually accepted job at equivalent remuneration in private specialty veterinary practice in Tucson, Arizona at the end of 2008. III. Decision of the Trial Judge [28] The trial judge found that Dr. Rubin had been defamed, but he dismissed Dr. Rubin’s claim. He did not accept that the Respondents could rely upon the defence of absolute privilege, but he found they could rely upon the defence of qualified privilege. Notwithstanding his dismissal of Dr. Rubin’s claim, the trial judge provided provisional assessment of damages. He found that considering the circumstances of the case, “a fair amount of general compensation would have been $25,000” (at para. 110). In addition, due to the “mixed results in [the] litigation,” he declined to order costs to either party (at para. 111). With that, Dr. Rubin appealed and the Union cross-appealed the costs award. IV. Positions of the Parties and Questions to be Answered [29] Dr. Rubin submits that the trial judge erred: (i) by finding the defence of qualified privilege applies; and (ii) by assessing the damages at $25,000. [30] The Respondents assert that the trial judge did not err by finding that the publications were protected by qualified privilege, but they seek as well to sustain the result they achieved in the Court of Queen’s Bench by arguing that the trial judge erred first, by finding Dr. Rubin had been defamed, and second, by failing to find that the defence of absolute privilege applies. And, as have indicated, they also assert that the trial judge erred by not awarding them costs. On this last point, they have cross-appealed. [31] The positions advanced by the parties require the Court to answer these questions: 1. Did the trial judge err by finding that Dr. Rubin had been defamed? 2. Did the trial judge err by finding that the defence of absolute privilege does not apply? 3. Did the trial judge err by finding that the defence of qualified privilege applies? 4. If Dr. Rubin’s appeal is successful, what is the appropriate quantum of damages? 5. Did the trial judge err in principle by not awarding costs to the Respondents? V. Analysis A. Did the trial judge err by finding that Dr. Rubin had been defamed? [32] The trial judge correctly referred to Grant v. Torstar Corp., 2009 SCC 61 (CanLII), [2009] S.C.R. 640 at paras. 28 and 29 to determine the elements of the tort of defamation. The required elements as taken from Torstar are that: (i) the impugned words are defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of reasonable person; (ii) the words in fact refer to the plaintiff; and (iii) the words were published, meaning that they were communicated to at least one person other than the plaintiff. Since it was quite clear that the words refer to Dr. Rubin and that they were published, the only real issue for the trial judge was whether the impugned words “would tend to lower Dr. Rubin’s reputation in the eyes of reasonable person.” The trial judge found that the words expressed by the Union would have that effect. [33] The standard of review to apply to the trial judge’s determination in this regard is correctness with respect to whether an impugned communication is capable of bearing defamatory meaning, but whether the expression is in fact defamatory is question of fact and, as such, is reviewable on palpable and overriding error standard (see: Roger D. McConchie and David A. Potts, Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004) at pp. 295-96). [34] Counsel for the Respondents asserts that the Court should have considered two factors in assessing whether the words were capable of bearing defamatory meaning. First, based on Netupsky v. Craig, 1972 CanLII 19 (SCC), [1973] S.C.R. 55, the Respondents submit that the trier of fact must consider the context in which an impugned statement is made when determining whether it is defamatory. In this case, the context is the push and pull of labour relations. Second, the Respondents argue that the trial judge should have considered that the impugned statements were contained in the Grievance Report and not in the Notice Re: Harassment Grievance and that the latter document indicated the statements were simply allegations with which the University strongly disagreed. As such, according to the Respondents’ argument, the trial judge should have concluded that the Notice Re: Harassment Grievance had neutralizing effect on the impugned statements contained in the Grievance Report because reasonable person would be able to garner from the context that yet-to-be-determined labour dispute was on-going and therefore the statements would not have tended to lower the reputation of Dr. Rubin in the eyes of reasonable person. This latter point is referred to as the “bane and antidote” argument (see: McConchie and Potts, p. 298). [35] Context is important in determining whether communication is defamatory, but cannot conclude that context ameliorates the effect of the words in this case. The Respondents state they were motivated by two purposes: (i) to find witnesses to support the allegation and solicit other persons to come forward regarding what they believed was poisoned workplace—and thereby carry out their duty to represent their members; and (ii) to inform their members. Yet, nothing about the labour relations context compelled publication in the manner that occurred to achieve those ends. For example, the evidence demonstrated that the Union rarely operated in the manner in which it did in this case. Further, the Union published the same material on two of the three occasions to members of the public who could have no interest in the labour matters at issue—at least to the level of detail presented by the two forms of publication. The labour relations context takes the Respondents only so far. note, as well, that in Netupsky the Court discussed context not in relation to whether the plaintiffs had been defamed, but with respect to whether the plaintiffs had established malice so as to overcome the defendants’ claim of qualified privilege. [36] With respect to the bane and antidote argument, it is true that the Notice Re: Harassment Grievance contains the statement that “Barb Daigle, Associate Vice-President (Human Resources) denied the grievance maintaining that there was ‘no merit to the grievance’ and that Ms. Bowman's and the Union's complaints were entirely ‘unfounded and without substance’,” but the Notice goes on to indicate that the Union disagrees. The Union, through Ms. Bowman, accused Dr. Rubin of not only refusing to prevent the harassment but of being an “active part of the harassment himself.” The Union, again through Ms. Bowman, also demanded significant remedies, including Dr. Rubin’s removal. At the very least, reasonable person would conclude that the Union believed Dr. Rubin took an “active part” in Ms. Bowman’s harassment and that it only awaited the final hearing to prove that such was the case. After all, if the Respondents did not believe Dr. Rubin had taken part in the harassment, reasonable person would ask why the Union would take the extraordinary step of publishing the allegations in the public manner in which it did. Considering the breadth and persistence by which the Union published, doing so not once, but three times and through various mediums, reasonable person would increasingly believe that the allegations were true. And, with such being the case, Dr. Rubin’s reputation would tend to be lowered in the eyes of reasonable person. [37] Thus, conclude that the trial judge made no error in law when he concluded that the words were capable of bearing defamatory meaning notwithstanding the overarching labour relations context. Like the trial judge, conclude that the labour relations context and the purposes for which the communications were posted are more appropriately considered with respect to the defences to the tort of defamation. Having made that legal conclusion, no basis exists by which can conclude that the trial judge made palpable and overriding error by finding Dr. Rubin had in fact been defamed by the publication of the allegations against him. Indeed, the trial judge could, in my view, have come to no other conclusion. B. Did the trial judge err by finding that the defence of absolute privilege does not apply? [38] The Respondents’ next argument is that the trial judge erred by failing to find the publications were protected by absolute privilege. Absolute privilege provides complete immunity regardless of whether or not malice exists. In general, absolute privilege attaches to statements and acts that aid in the “efficient functioning of… governmental institutions: legislative, executive and judicial” (see: Allen M. Linden Bruce Feldthusen, Canadian Tort Law, 9th ed. (Markham, Ont.: LexisNexis Canada, 2011) at 784 citing John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 615). As the authors of Canadian Tort Law note, the law is circumspect in granting absolute privilege, and the scope of the privilege is narrowly interpreted, owing to the potential for abuse of such privilege (at 784). [39] Two issues arise in this case; first, whether the arbitration board to which Ms. Bowman addressed her Grievance Report is the type of “judicial” institution contemplated by the scope of absolute privilege, and second, whether the publication that took place exceeds what is contemplated by absolute privilege. [40] With respect to the first issue, the Grievance Report is the originating document leading ultimately to an arbitration proceeding. The trial judge concluded that an arbitration board or hearing under The Trade Union Act, R.S.S. 1978, c. T-17 is quasi-judicial proceeding (para. 58), which falls within the judicial branch. The trial judge’s conclusion would seem to be the correct one. Administrative boards or tribunals that share similar attributes to those of the judiciary have been found to come within the scope of absolute privilege (see, e.g., Hamalengwa v. Duncan (2005), 2005 CanLII 33575 (ON CA), 135 C.R.R. (2d) 251 (Ont. C.A.), leave to appeal to S.C.C. refused, [2006] S.C.R. ix). [41] The second issue is whether absolute privilege extends to the publication of the defamatory statements in this case. The trial judge found that it did not for two reasons: he found that publishing the statement to achieve the purpose of finding witnesses exceeded what is contemplated by absolute privilege and he also rejected the defence of absolute privilege due to the extent of the publishing. He wrote on these points as follows: [71] The grievance report, per se, while it remained within the confines of its original intended purpose (i.e. the originating document in grievance procedure mandated by The Trade Union Act), would be in my view protected by absolute privilege. However, the impugned words in that document ceased to enjoy that protection once the document was published in such broad way and for the purposes stated above. [42] The trial judge was clearly correct in rejecting the defence of absolute privilege. Circumstances may arise where statements outside of the actual hearing may be subject to the defence. (See: Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, looseleaf (current to Release 4–2012), 2nd ed., vol. (Toronto: Carswell, 1999) under the headings “12.4(5)(l), Investigative Reports to Determine Legal Position,” “12.4(5)(m), Information Given to Initiate Legal Proceedings,” and “12.4(5)(n), Information Given to Investigative Bodies”—all found under c. 12.4(5), “Matters to which Privilege Attaches.”) Having regard for these references, the law may be tending to extend the cloak of absolute privilege to what has been described as “steps preparatory to judicial proceedings” but the purpose in this case was an attempt to find corroborating witnesses. This purpose is not so intimately connected with the process as to justify the extension of the defence of absolute privilege. Moreover, the extensive publication that took place destroys any possible claim that the Union might have to absolute privilege. Again, the trial judge correctly found that the defence of absolute privilege does not apply. C. Did the trial judge err by finding that the defence of qualified privilege applies in this case? [43] The trial judge quoted from Raymond E. Brown, The Law of Defamation in Canada, looseleaf (current to Release 2009–3), 2nd ed. (Toronto: Carswell, 1999) (see: paras. 73-74 of the trial judge’s decision). He cited the definition of qualified privilege from that text and then quoted extensively from passages where the author discusses the scope of the privilege as it extends to unions. He then wrote: [75] Counsel for the defendants points out that s. 25.1 of The Trade Union Act places duty upon the union to fairly represent its members, including representing members on grievances alleging breach of the collective bargaining agreement: 25.1 Every employee has the right to be fairly represented in grievance or rights arbitration proceedings under collective bargaining agreement by the trade union certified to represent his bargaining unit in manner that is not arbitrary, discriminatory or in bad faith. [76] agree with counsel for the defendants that preparing for grievance arbitration can also include locating witnesses to support the grievance. This would be connected with the discharge of the responsibility set out above. Communication with members on grievance matters is also in my view part of discharging the duty of fair representation. This falls in step with the learned author Brown's comments set out above and therefore the publication of the impugned words would be protected by qualified privilege. [77] Plaintiff's counsel expressed concern that the union's communications in part consisted of using the internet. It is now 21st century reality that the internet and web pages will be used by large organizations (such as this union), to communicate with its membership. Brown (above under “Scope of Privilege”), expressed concern about the level of access to such information. In my view CUPE was entitled to communicate to the union membership in the fashion it did, subject to the concerns pertaining to malice. (emphasis added) [44] Later in his reasons, dealing with malice, the trial judge wrote: [84] The defendants’ point of view appears to be that Dr. Rubin was not policing the situation in the workplace while the back to work program was in place. The defendants adopted the complaint of Ms. Bowman. The complaint or grievance, being that despite weeks of meetings and discussions and thorough review of policy, Ms. Bowman still maintained she was being harassed. [85] The wording of the grievance is unfortunate. It would have been far better to approach the issue in more general way than to directly identify Dr. Rubin. [86] However, am satisfied that the defendants undertook the preparation and drafting of the grievance report very seriously. The grievance report wording was based on their collective belief that the plaintiff seemed to be unable to control the situation as it unfolded each day at the workplace. [87] The evidence indicates that in the minds of the defendants (rightfully or not but certainly bona fide), the buck stopped at the plaintiff's desk. This well may have been an overly simplified reaction to the rather complex and protracted workplace problem. have already expressed my opinion that Dr. Rubin was doing all that he believed he could reasonably be expected to do. However, cannot conclude on the evidence before me that any of the defendants in drafting the grievance report or in publishing the grievance report, acted maliciously. [88] The evidence of both Mr. Ross and Mr. Nowaselski and by default, that of the union, was that they basically held the head of the department directly accountable. Other observers may have come to different conclusion. However, cannot say that the defendants acted with reckless regard of the truth or for any improper purpose other than representing union member. (emphasis added) [45] In my respectful view, the trial judge correctly identified the law from Brown on Defamation, but he did not correctly apply it. For ease of reference, Brown at 13.1 (Vol. 4) defines the ambit of qualified privilege: There are certain occasions on which person is entitled to publish untrue statements about another, where he or she will not be liable even though the publication is defamatory. One such occasion involves conditional or qualified privilege. No action can be maintained against defendant unless it is shown that he or she published the statement with actual or express malice. communication is protected by qualified privilege if it is fairly made on privileged occasion by person in the discharge of some public or private duty, or for the purpose of pursuing or protecting some private interest, provided it is made to person who has some corresponding interest in receiving it. The duty may be either legal, social or moral. The test is whether persons of ordinary intelligence and moral principle, or the great majority of right-minded persons, would have considered it duty to communicate the information to those to whom it was published. (emphasis added, footnote omitted) [46] When the trial judge applied this test, he focussed entirely on the Union’s duty to represent its members, including the duty to locate witnesses to support grievance. He quotes accurately from Brown on Defamation, but in the quotations from that text, the authors clearly state that the manner of communication must be proper and reasonable (see: Brown on Defamation at 13.6(3)(d)(ii)(A), (B) (C)). Specifically, the scope of the privilege extends to union publications made on proper occasion, in proper manner and to appropriate parties (see: Brown on Defamation at 13.6(3)(d)(ii)(C)). [47] The question of whether communication is subject to qualified privilege is question of law and is, therefore, subject to review on standard of correctness (see: Douglas v. Tucker, 1951 CanLII 54 (SCC), [1952] S.C.R. 275 at 286 cited in McConchie and Potts at 368). McConchie and Potts also provide helpful list of criteria to consider when determining whether communication is privileged on the grounds of duty or interest: i) the content of the alleged defamatory expression; ii) who published it; iii) why it was published; iv) to whom it was published; v) under what circumstances it was published; vi) the nature of the duty which the defendant claims to discharge or the interest which the defendant claims to safeguard; vii) whether there are any statutory duties imposed on the speaker; viii) the urgency of the occasion; ix) the manner in which the defendant conducted him- or herself; x) whether or not the expression was published in breach of confidence; xi) whether or not the defendant officiously volunteered the information or whether it was in answer to an inquiry; and xii) whether or not what was published was germane and reasonably appropriate to the occasion (see McConchie and Potts, p. 371). The authors cite, inter alia, Halls v. Mitchell, 1928 CanLII (SCC), [1928] S.C.R. 125, per Duff J. at 136, 139 and 142 and Sapiro v. Leader Publishing Co., 1926 CanLII 130 (SK CA), [1926] D.L.R. 68, Lamont J.A. at 70-71 (Sask. C.A.), citing inter alia, Stuart v. Bell, [1891] Q.B. 341 at 350, as authority for these propositions. The authors also state that whether defamatory publication went beyond what is germane and reasonably appropriate to the occasion is question of law (see: p. 368, citing Douglas v. Tucker, 1951 CanLII 54 (SCC), [1952] S.C.R. 275 (Toronto: Carswell, 2012) at 286). Similarly, Professor Klar states that “[t]he defendant will exceed the purpose of the qualified privilege and lose its protection either by using words which were not relevant to the occasion, or communicating the material to those who were not entitled to receive it” (see: Lewis N. Klar, Tort Law, 5th ed. (Toronto: Carswell, 2012 at 816)). [48] Based on my review of the authorities, I conclude that the trial judge did not give sufficient effect to: (i) the wording of the defamatory expressions; (ii) the circumstances under which they were published and, in particular, the chronology of events and the separate instances of publication; (iii) the persons to whom the words were published; and (iv) whether what was published on each occasion was germane and reasonably appropriate to that specific occasion. will expand on each of these points. [49] First, the trial judge erred by not giving effect to the wording of the two documents, and how the Notice Re: Harassment Grievance attached the Notice of Grievance, affirmed its contents and drew the public’s attention to it in dramatic fashion. The choice of the title “Harassment Grievance,” the large font, the capitalization and the bolding sensationalize the allegations contained within it. The trial judge held that “[t]he defendants undertook the preparation and drafting of the grievance report very seriously” (para. 86), but the point is not whether they were careful in preparing the Grievance Report but whether they were careful in republishing it. [50] The trial judge also found that “the grievance report wording was based on their collective belief that [Dr. Rubin] seemed to be unable to control the situation as it unfolded each day at the workplace” (para. 86), but that is not what the Respondents wrote in the Grievance Report. This is what they said in the Grievance Report: The administrator of the Veterinarian Teaching Hospital, Dr. Stan Rubin, has not only refused to prevent the harassment but has been an active part of the harassment himself. (Appeal Book, p. 52a) They also asked for remedy that emphasized Dr. Rubin’s participation in the harassment. By attaching the Grievance Report to the Notice Re: Harassment Grievance and asserting in the latter document that the University erred by denying the merits of Ms. Bowman’s claim, the Respondents continued to assert that Dr. Rubin was “an active part of the harassment himself” as well as refusing to prevent it. [51] Secondly, do not believe the trial judge gave effect to the circumstances under which the defamatory words were published having regard, in particular, for the chronology of what happened in this case. It is critical to understand that the Grievance Report and the combined document of the Grievance Report and the Notice Re: Harassment Grievance were prepared and published at different times—against backdrop of changing knowledge on the part of the Respondents. [52] The Grievance Report was filed on March 21, 2006. Dr. Rubin did not and could not take any issue with the allegations made against him in that document—if no further publication of it had taken place. Then on April 26, 2006, hearing was held as part of the second step of the grievance process, following which it was determined, albeit at preliminary stage, by means of letter dated September 5, 2006, that no basis exists for the damning allegations made in the Grievance Report—and, indeed, Ms. Bowman did not even attend the hearing (Appeal Book, p. 208a). After receipt of the September 5, 2006 letter, the Union prepared the Notice Re: Harassment Grievance for the purpose of finding the evidence to support the defamatory allegation against Dr. Rubin that the letter advised the Union that it lacked for the making of the allegation in the first place. Unlike the Grievance Report, this document was not signed by Ms. Bowman but by the Union itself. [53] The two documents were then posted on the Hospital public boards over four-day period when the Hospital was open to the public. But that does not end the matter. [54] Following the University’s strong objections to the publication of the two documents by posting at the Hospital, the Union mailed the newsletter to its 1400 members and posted the newsletter on its website—without any controls governing access to the document. Only after the within lawsuit was commenced did the Union remove the document from its website. [55] Nowhere in the trial judge’s reasons does he mention that: (i) the second step of the grievance process had intervened between the preparation of the Grievance Report and the Notice re: Harassment Grievance; (ii) notwithstanding the University’s strong objections to the publication that had taken place in the Hospital, the Union proceeded to wider publication by means of mail-out to its members and posting on the website; and (iii) the newsletter remained available on the internet until lawsuit was commenced. [56] The third error relates to the recipients of the publications. Cory J. in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] S.C.R. 1130 at para. 143 cited with approval the following reasoning of Lord Atkinson with respect to qualified privilege in Adam v. Ward, [1917] A.C. 309 (H.L.) at 334: privileged occasion is an occasion where the person who makes communication has an interest or duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has corresponding duty to receive it. This reciprocity is essential. Further, as the Supreme Court of Canada stated in Jones v. Bennett, 1968 CanLII 126 (SCC), [1969] S.C.R. 277 at pp. 284 and 285, “a plea of qualified privilege cannot be upheld where the words complained of are published to the public generally or, as it sometimes expressed, to the world.” Qualified privilege could attach only to the separate occasions by which the statement was published in this case (i.e., on the bulletin boards, on the internet, and in the Union mail-out) if the recipients of the published statements had mutual interest in receiving those statements. Specifically, qualified privilege could only extend to informing members of the Union’s work in pursuing the grievance and gathering evidence from persons who might be able to shed light on the grievance. [57] As have indicated, the Union published these two documents in three places. The possible audience included: (i) non-Unionized staff at the Hospital and members of the public who had free access to it; and (ii) members of the public who searched the internet and came upon the Union’s website—to which access was not restricted. [58] The trial judge did address the question of publishing in relation to the internet (at para. 78), but he dismissed this aspect of the complaint by finding in effect that the use of the internet is fact of life. As Brown on Defamation states “[t]he use of an internet website for the circulation of information to the union membership may be appropriate and privileged but only if reasonable steps are taken to restrict access to the website by the public generally or to those not interested in the information” (at 13.6(3)(d)(ii)(C), vol. 4). The internet is not tool that can be used to expand qualified privilege so as to justify the broad publication of defamatory statement, but rather it exacerbates the libel. In this case, it is common ground that the Union’s website was open to the public on the internet, without any access code protections or other privacy protections. Anyone with internet access could gain access to it. It is irrelevant, in my view, that Dr. Rubin did not present any evidence to the Court to prove that anyone did in fact search the internet to find the communication. [59] As such, the Respondents are unable to satisfy the reciprocity of interests aspect of the defence of qualified privilege as endorsed in Church of Scientology (i.e., that the person publishing the information had an interest/duty to do so, and that the person receiving the information had sufficient interest in receiving it). In such circumstances, the plea of qualified privilege does not apply. [60] The fourth error pertains to whether what was published on each occasion was germane and reasonably appropriate. recognize that the Union is obliged to keep its members informed and to gather evidence to support grievor’s claim. Indeed, as Brown on Defamation at 13.6(3)(d)(ii)(A) and (B), vol. 4, makes clear “a union may communicate to its members information regarding public labour dispute, express its dissatisfaction with the employer, and urge its members to boycott the employer's products, and it may address communications critical of competing union to its officers and members and other workers in an industry it is attempting to organize.” Strong language in employer-union relations can fall within the realm of protection offered by qualified privilege, but as the Alberta Court of Appeal has said “the defence of qualified privilege is not absolute” (Teamsters, Local 987 v. U.F.C.W., Local 401), 2005 ABCA 263 (CanLII), [2006] W.W.R. 16 at para. 26). [61] If certain occasion attracts qualified privilege, it does not necessarily follow that all the statements made on that occasion attract qualified privilege. To inform its membership and to find witnesses to support its grievance, the Union could have sent out general notice. The Union did not need to name Dr. Rubin and make the allegations it did to achieve its goal. The Union overreached, thereby placing the statement outside the ambit of the defence of qualified privilege. [62] appreciate that counsel for the Respondents asked this Court to consider that the University had failed to designate one or more of the bulletin boards at the Hospital as Union boards, but this hardly makes difference to Dr. Rubin or the incidental viewer of the public boards as they existed when the defamatory statements were posted. The fact remains that the defamatory statements in the case at bar were posted in public place at the Hospital on each of the eight bulletin boards, meaning any member of the public who used the services of the Hospital could have seen it at any time of the day from October 6-11, 2006. This means that individuals who had no interest in seeing the documents were able to see them. And, of course, the Hospital was not the only place where the Respondents published the documents. [63] In the within appeal, the issue the trial judge had to confront was whether the Union went beyond what was necessary and reasonable to fulfil its duty and to achieve its purpose of fair representation. In my respectful view, having regard for the manner of communication, the wording of the communications, their timing and to whom they were given, the trial judge erred in law by concluding that the defence of qualified privilege applied. D. If Dr. Rubin’s appeal is successful, what is the appropriate quantum of damages? [64] Dr. Rubin argues that the provisional assessment of damages in the amount of $25,000 was both wholly erroneous and founded upon mistaken principles of law. In support of his position, he points to: (i) the importance of his position as the director of the Hospital, and the amount of hard work and education it took to solidify his position; (ii) the deleterious effect on his reputation and on his personal wellbeing; and (iii) the shock of the defamatory statements considering that he was actually an avid supporter of, and advocate for, Ms. Bowman, and his belief that he and the Union had managed to establish good working relationship. [65] On the whole, Dr. Rubin argues that the trial judge did not consider all the relevant factors and also considered irrelevant factors. He argues that if the trial judge had properly considered the relevant factors and ignored the irrelevant factors, he would be entitled to $300,000 for general damages, $150,000 for aggravated damages, and $300,000 for punitive damages. Therefore, in total, Dr. Rubin seeks $750,000 in damages. [66] With respect to his claim for aggravated and punitive damages, Dr. Rubin submits that the trial judge erred by failing to properly consider that the Respondents were motivated by malice. To support his claim for malice, he points to certain relationships existing between Union members and the Hospital that he says means the Union had wider agenda than the resolution of Ms. Bowman’s grievance. [67] The Union defended the provisional assessment of damages on the basis that the evidence did not demonstrate higher than normal assessment of general damages. In Church of Scientology, the Supreme Court of Canada was asked to establish “cap” for general damages for defamation. The Court declined to do so for several reasons, including that “a review of the damage awards over the past nine years reveals no pressing social concern” as “from 1987 to 1991, there were only 27 reported libel judgments in Canada, with an average award of $30,000” and “from 1992 to 1995, there have been 24 reported libel judgments, with an average award of less than $20,000” (para. 169). Counsel for the Respondents then drew the Court’s attention to Angle v. LaPierre, 2008 ABCA 120 (CanLII), 2008] W.W.R. 600 where the Court refused to increase total award of $11,511 for general damages awarded against an education activist who assisted several parents in pursuing complaints against series of teachers.[1] [68] The standard of review of an award of damages is well-known. In Woelk v. Halvorson, 1980 CanLII 17 (SCC), [1980] S.C.R. 430 at 435-36, the Court stated that an appellate court may only interfere with an assessment of damages if: (i) the assessment is wholly erroneous; (ii) the assessment was not based upon any evidence; or (iii) the assessment was based on mistaken or wrong principle. query whether the standard of review need be applied with the same rigour to provisional assessment of damages as court would apply to an actual award of damages, particularly where the appellate court views the legal effect of the evidence differently than the trial court.  In any event, I am satisfied that in the whole of the circumstances, which I have reviewed extensively in connection with the Respondents’ claim for qualified privilege, $25,000 is a wholly erroneous assessment of the damages in this case. [69] do not consider myself bound by the “range” of damages mentioned in Church of Scientology. Indeed, it would be clear error on the part of an appellate court to assess an award made by trier of fact based on “cap” of $20,000 that the Supreme Court of Canada specifically rejected in Church of Scientology. Rather, this Court must be guided by the general principles stated by the Supreme Court in Church of Scientology as applied in the context of this case. note, as well, that awards for libel have generally been increasing (see: McConchie and Potts at p. 865; Klar, Tort Law, supra at 834). Exceptions exist, including Angle cited by the Respondents. [70] In Church of Scientology, the Court endorsed the principles articulated in Gatley on Libel and Slander, 8th ed., London: Sweet Maxwell, 1981 at pp. 592-593 as the basis upon which damages for libel should be assessed. The trier of fact is entitled to take into consideration all of the circumstances, including in particular: (i) the conduct of the plaintiff, his position and standing; (ii) the nature of the libel; (iii) the mode and extent of publication; (iv) the absence or refusal of any retraction or apology; and (v) the whole of the defendant’s conduct from the time when the libel was published down to the very moment of the verdict. These general principles subsume many others, referred to in the jurisprudence. Of particular relevance in case such as this one is that the capacity to cause damage increases with the defendant’s reputation (see: Lewis N. Klar, Remedies in Tort, Leanne Berry (ed.), looseleaf, vol. (Toronto: Carswell) at 6-73 citing McElroy v. Cowper Smith, 1967 CanLII 70 (SCC), [1967] S.C.R. 425). [71] The trial judge justified the award of $25,000 in this case with these reasons: [95] The plaintiff was quite upset with the posting of the grievance report on the bulletin boards. To me that was the primary source of his unhappiness. The plaintiff of course was also upset that the grievance report went out with the newsletter and ended up on the website. [96] The plaintiff complains that in essence his stature as the director of the VTH was affected by the impugned words in the grievance report. According to the plaintiff, this caused him ultimately to resign as the director of the VTH and take job as full-tenured professor at the Veterinary College in Saskatoon. [97] note that it appears Dr. Rubin had the full support of the Dean of the Veterinary College and the HR department of the University. In fact the Dean took an active role in chastising the union for publishing the grievance report. [98] It was the plaintiff's sole decision to resign as the director of the VTH and there was no evidence that there was any other pressure from anyone for him to do this. [99] Dr. Rubin then re-entered the faculty as full-tenured professor. Apparently he was doing what he loved to do. However, the plaintiff continued to feel out of place. Dr. Rubin was not able to fully particularize what was causing this unhappiness. [100] Dr. Rubin admitted that being full-tenured professor and not having to worry about the administration of the VTH would be less stressful. [101] In any event, it was around this approximate time that he decided to apply for the director of veterinarian hospital in the United States and also showed interest in "headhunter" who sought out his abilities and talents for employment in the United States. [102] Dr. Rubin seems to have had some degree of selection in terms of where the headhunter was going to place him. The plaintiff indicated preference to Tucson. Again, Dr. Rubin appears to be doing what he has trained for and what he likes to do, namely highly-specialized veterinarian. [104] have no difficulty in appreciating Dr. Rubin's concern about the wording of the grievance report and the fact that it was circulated. However, as noted, he continued to receive the full support of his Dean. In addition, stepping down as director and moving into less stressful position as full-tenured professor does not seem to be particular hardship. In addition, the plaintiff seems to have accommodated his desire to move from Saskatoon with employment in Tucson. [emphasis added] [72] In my respectful view, the trial judge justified his award by undervaluing the impact of what had happened to Dr. Rubin and the effect upon him. To say that it was the “plaintiff’s sole decision to resign” overlooks completely why he resigned: he resigned because the Notice Re: Harassment Grievance with the Grievance Report attached was publicly published in the Hospital, placed on the Union website and mailed to 1,400 households. The Grievance Report demanded that Dr. Rubin be fired. The Union got what it asked for, albeit by Dr. Rubin acting voluntarily in the face of false allegation against him. No one, even those caught up in the heat of employer-and-employee relations, should be treated in the manner that the Union treated Dr. Rubin. [73] An allegation of harassment is nebulous claim, encompassing conduct ranging from sexual misconduct to bullying. The libel accused Dr. Rubin of taking an active part in the harassment of Ms. Bowman with no indication of the nature of the harassment. Significantly, Dr. Rubin had befriended the grievor, supported her and met with her frequently. She gave him gifts and was seen leaving his office in tears—adding to the ambiguity of the allegation made in the context of this case. Given the nature of the allegation and the breadth of its publication, it would be difficult, if not impossible, to obliterate the lingering doubt in the minds of some that Dr. Rubin had done something wrong. It, of course, must be noted that Dr. Rubin was completely innocent of wrong-doing. [74] Further, the Union mailed the Mini-Bulletin and posted it on the website knowing the University’s strong objections, and refused to remove the information from its website until the lawsuit was commenced. No apology or retraction has been offered for any of this behaviour. [75] An award of $25,000 is simply too little to pay for actions that caused highly respected individual, occupying significant position, to leave that position and then to subsequently leave his country for job of less stature. [76] The Supreme Court of Canada made it clear that little is to be gained from detailed comparison of libel awards in other cases as each libel case is unique. The significance of Church of Scientology, however, is the extent to which the Court commented upon the seriousness of damage to personal reputation caused by defamatory comments unprotected by privilege. Cory J., speaking for the Court, made these comments: The consequences which flow from the publication of an injurious false statement are invidious; (para. 165) It will be extremely difficult to correct the impression left with viewers that [the plaintiff] must have been guilty of unethical and illegal conduct; (para. 165) All who read the news reports would be left with lasting impression that [the plaintiff] has been guilty of misconduct. It would be hard to imagine more difficult situation for the defamed person to overcome; (para. 166) defamatory statement can seep into the crevasses of the subconscious and lurk there ever ready to spring forth and spread its cancerous evil. The unfortunate impression left by libel may last lifetime. Seldom does the defamed person have the opportunity of replying and correcting the record in manner that will truly remedy the situation. (para. 166) As lawyer, [the plaintiff] would have no way of knowing what members of the public, colleagues, other lawyers and judges may have been affected by the dramatic presentation of the allegation that he had been instrumental in breaching an order of the court and that he was guilty of criminal contempt; (para. 177) He would never know who, as result of the libellous statement, had some lingering suspicion that he was guilty of misconduct which was criminal in nature. He would never know who might have believed that he was person without integrity who would act criminally in the performance of his duties as Crown counsel. He could never be certain who would accept the allegation that he was guilty of criminal breach of trust which was the essential thrust of the libel. (para. 178) [77] Many of these statements could be said in relation to Dr. Rubin. He had reached the pinnacle of his career—occupying one of handful of such positions in North America. Like the plaintiff in Church of Scientology, Dr. Rubin testified about the significant effect of the libel on him. In relation to the Grievance Report alone, he said: was horrified. was angry. was shocked. was embarrassed. was insulted. You know, after everything that, you know, had done to assist Ms. Bowman in the years that preceded this, mean felt like here these words are, which are completely untrue and unfounded, on paper. felt, you know, this was the greatest betrayal. held myself, you know, to the higher—highest standards of how dealt with staff and people and this was beyond anything ever imagined to be called said that harassed someone and failed to prevent harassment, especially with this particular case where was an advocate, friend for so many years. (Appeal Book at pp. 59 to 60). [78] With respect to publication of the two documents together, Dr. Rubin testified: guess the first time—although was shocked and [horrified] thought, well, you know, this is labour relations and it's one thing, you know, we're meeting behind closed doors to discuss this. Now it's open to the public, everybody can see this so, you know, it magnified my reaction. You know, the anger, the shock and the embarrassment that it was out there for anybody who walked by to see (Appeal Book at p. 61). [79] He stressed that no one had ever reproached him about his conduct vis-à-vis Ms. Bowman before and this magnified his sense of betrayal (Appeal Book at p. 61). [80] Regarding his decision to resign as director, he further described the impact of the publications on him: The experiences were negative. felt that my capacity to manage the Veterinary Teaching Hospital in meaningful way was diminished considerably and sensed that had lost respect with the staff because of what came out. You know, if it could imagine that if they read it they had to presume it had to be true. You know, it was written on paper, it was posted on the bulletin board. It must be true, so he has to harass people. And so my capacity to direct the hospital, you know, was diminished and felt that was not being any―effective any longer. The staff challenged me on things that thought they were taking advantage of the teaching hospital and the university but rather than have big fight about it, you know, things―you would let things go rather than have it erupt into some kind of altercation. It stopped being fun. mean, took the job that―a lot of people would question why one would want to take an administrative job and move out of faculty position which is so nice and safe and protective. took it because it was challenge and could move that teaching hospital forward, and did. But, you know, in the aftermath of this, it wasn't fun anymore, wasn't sleeping well, and took stock of the situation and decided that was not going to continue as VTH director. (Appeal Book at pp. 66-67). [81] As to why he left the University of Saskatchewan, he testified: The environment had changed for myself such that couldn't work there anymore and didn't have could feel the coolness when went into the environment of the teaching hospital from the staff. When―that was the main―I came to work at the university to teach clinical medicine and when you're in the clinical environment and the environment is not positive anymore, it stops being fun. So there was coolness and distanceness (ph)―a distance that, you know, felt when went into the clinic. felt was somewhat of pariah down there and had conversations with, you know, friends who were in the faculty association, you know, what―what do think could do and one of the advices got was, well, you could just―you know, you're fat member of the faculty, you could just close your door for ten years until you retire, and just couldn't do that. couldn't see myself doing that. (Appeal Book at pp. 68-69) [82] Having regard for the same factors that caused me to conclude that $25,000 is a wholly erroneous assessment of general damages, including what was said, how it was published and the effect on Dr. Rubin, I conclude that general damages should be fixed in this case at $100,000. In fixing this amount, I have considered that: (i) the Respondents published the two documents by mailing them and placing them on the website—over the strong objections of the University; (ii) the documents remained on the website some six months after the University demanded that they be removed; (iii) no apology or retraction has ever been made; and (iv) the Union appears to have had no conception of the harm caused to Dr. Rubin. On this last point, note in particular the testimony of Mr. Ross to the effect that such allegations “go with the territory” (see: Appeal Book at pp. 337 to 340). It is also significant that the allegations were made, not by an individual with little credibility, but by an important body whose statements were more likely to be believed. [83] Having regard for the comments in Church of Scientology, have not relied extensively on awards in other cases, but have reviewed them. From my review of the authorities, conclude that since Church of Scientology, courts have given substantial awards (awards over $100,000), especially in the provinces of British Columbia and Ontario, but generally courts are still inclined to avoid such awards. The courts must always be mindful of the impact of sizeable award on the free speech in question (Klar, Tort Law, supra, p. 833). In addition, the facts of most of the cases that have given substantial awards indicate more extreme and egregious conduct than the facts in the within case. also note that the highest award granted in this Province remains Duke v. Puts, 2001 SKQB 130 (CanLII), 204 Sask. R. 130, aff’d 2004 SKCA 12 (CanLII), 241 Sask. R. 187, at $100,000 general damages and $150,000 aggravated damages. [84] In rejecting an award higher than $100,000, have specifically considered the following factors: (i) the documents remained on the public bulletin board short period of time; (ii) the Mini Bulletin was “buried” to some extent in the archival portion of the Union’s website; (iii) the comments were made in labour relations context; (iv) the Respondents did not plead that the statements were true or that they were justified. do not place too much weight on the last point, however, because efforts were made at trial to persuade the trial judge that if manager is not controlling the harassment, the manager is taking “part” in it. Mr. Ross testified at some length, trying to demonstrate that Dr. Rubin took part in the harassment because of his managerial position (pp. 229, 325, 327). Indeed, the trial judge felt compelled to make finding that Dr. Rubin did not actively harass Ms. Bowman (para. 45)—notwithstanding the fact that the Respondents had not pled truth or justification. [85] Having regard for all of the above facts and factors, I have concluded that an award of $100,000 provides sufficient compensation and appropriately balances the positions of the parties. [86] To sustain an award of aggravated damages, the trier of fact must make finding of malice, which the jury made in Church of Scientology. The Supreme Court upheld the jury’s award of $500,000 saying the jury had more than enough evidence to support its decision including: (i) the existence of file on the plaintiff; (ii) designating the plaintiff as “Enemy Canada”; (iii) evidence that the Church of Scientology wanted to “neutralize” the plaintiff; (iv) the organization of press conference discussing legal action against the plaintiff to ensure widest possible dissemination; (v) continuation of the contempt proceedings against the plaintiff even though the Church of Scientology knew the allegations were false; and (vi) the post-trial actions of the Church of Scientology. Having regard for all this, the Supreme Court was confident that the plaintiff had demonstrated that the Church had acted with real and persistent malice. [87] In addition, the jury found that the Church of Scientology’s conduct was so outrageous as to require punitive damages. It awarded $800,000 in punitive damages despite the fact that general and aggravated damages already totalled $800,000. However, as the Supreme Court stated, any doubt that punitive damages were inappropriate due to the high total of general and aggravated damages was removed once the Church of Scientology’s post-verdict misconduct was witnessed. During the appeal, it became evident that no amount of general or aggravated damages would have deterred the Church of Scientology, thus punitive damages were needed. [88] In this case, the trial judge found that the Union had not acted maliciously and he specifically found no merit to the allegation of collusion between member of the teaching staff of the Hospital and the Union. It is difficult to find fault with those findings. note that the Ontario Court of Appeal in Rogacki v. Belz (2004), 2004 CanLII 21439 (ON CA), 243 D.L.R. (4th) 585 (Ont. C.A.), leave to appeal to SCC refused, [2005] S.C.R. vi, has convincingly reasoned that finding of malice for the purposes of damages is different from finding of malice for the purposes of liability. The former is broader because it can take into account the conduct of the plaintiff before and after the publication of the defamatory statement, up until the point of trial. The latter only considers malice in the context of the published defamatory statement, and thus is narrower in nature. However, even if one considers the conduct of the Respondents in the broader sense, all aspects of what makes an award of aggravated damages appropriate in this case have been subsumed in the award of general damages. Since the issuance of the statement of claim, the Respondents have not engaged in any tactics that can be said to exacerbate or even to maintain the libel. [89] With respect to punitive damages, agree with the trial judge that the behaviour of the Respondents is not so outrageous as to support such an award. Further, the Union acted to remove the offending material from its website once the lawsuit had been commenced. The defamation has not been repeated. Thus, would make no award of punitive damages. [90] final point must be made. In fixing the award of damages at $100,000, have not differentiated between any of the Respondents as no submissions were made to the Court expressing anything but joint and several liability. It appears to have been common ground that Messrs. Ross and Nowaselski were the proper officers of the Union with respect to this matter and were acting in the scope of their authority. E. Did the trial judge err in principle when he decided not to award costs to the Respondents? [91] Having found that the appeal should be allowed in Dr. Rubin’s favour, the only relevance of this issue is with respect to costs of the cross-appeal. The trial judge did not award costs as the results were “mixed.” He found the results were mixed because Dr. Rubin had proven that he had been defamed, but the Respondents had proven that the communications were protected by qualified privilege. [92] In defamation action, the court can only consider whether defence exists after finding that the plaintiff has been defamed. In that sense, in every defamation case where defence is accepted, the results are mixed. It is the nature of defamation action. The plaintiff will have proven defamation, but the defendant will have successfully proven that the publication of the defamed words was privileged in some way—meaning that the plaintiff will not ultimately have been successful. That does not mean that a trial judge in such circumstances could not decline to order costs to a successful defendant, but it is not appropriate to decline to do so on the basis of “mixed results.” Finding for party on some issues, which do not affect any aspect of the remedy, does not make the results mixed. Thus, agree with counsel for the Respondents that costs would normally be awarded to the defendant who has succeeded in proving that the defamatory publication was privileged, subject to the proper exercise of the trial judge’s discretion to withhold costs in an appropriate case. [93] The appeal is allowed with costs to Dr. Rubin in this Court and in the Court of Queen’s Bench. Dr. Rubin shall have general damages against the Respondents in the amount of $100,000. Since I have allowed the appeal, the cross-appeal is dismissed, but given that the Respondents are clearly correctwith respect to the issue raised in the cross-appeal, it is appropriate in the circumstances of this case to dismiss it without costs. DATED at the City of Regina, in the Province of Saskatchewan, this 1st day of March, A.D. 2013. “Jackson J.A.” Jackson J.A. concur “Klebuc C.J.S.” Klebuc C.J.S. concur “Lane J.A.” [1] An award of $20,000 in general damages against one set of parents was not appealed by either the plaintiffs or the defendants (see: 2006 ABQB 198 (CanLII) at paras. 306 to 309).
The appellant appealed the Queen's Bench decision that denied him damages for defamation (see: 2010 SKQB 249). The trial judge held that the defence of qualified privilege protected the Union and its representatives (the defendants in the action) when the latter republished a grievance defaming the appellant by falsely accusing him of having participated in the harassment of an employee. The trial judge fixed a provisional award of $25,000. The appellant's grounds of appeal were that the trial judge erred in finding that the defence applied and by assessing damages at $25,000. The respondents cross-appealed on the ground that the trial judge had erred in denying them costs. HELD: The Court held that the trial judge had erred in finding that the defence of qualified privilege applied. Although she correctly identified the law, she had not correctly applied it because she had not given sufficient effect to 1) the wording of the defamatory expressions; 2) the circumstances in which they were published and, in particular, the chronology of events and the separate instances of publication; 3) the persons to whom the words were published; and 4) whether what was published on each occasion was germane and reasonably appropriate to the specific occasion. In general, the Court noted that the respondents could have fulfilled their duty to notify its membership of the grievance filed by the member who alleged the harassment and made its effort to find witnesses to support the member's grievance by sending out a general notice. It did not need to name the appellant and make the allegations it did to achieve its goal. The respondent overreached, thereby placing the statement that the appellant had participated in the harassment of the employee outside the ambit of the defence of qualified privilege. The Court awarded general damages in the amount of $100,000. It held that the trial judge's assessment of damages was erroneous and founded upon mistaken principles of law. The Court was not bound by the range of damages mentioned by the Supreme Court in the Church of Scientology decision but only to apply the principles established in it to the context of this case. The provisional award of $25,000 for general damages was erroneous because the respondents published the documents by mailing them and placing them on the Union's website, over the strong objections of the employer. The respondents left the documents on the website for 6 months after the employer demanded that they be removed. The respondents had never offered an apology and appeared not to have recognized the harm that had been caused to the appellant. An award of aggravated damages was subsumed in the general award and the Court agreed with the trial judge that punitive damages were not warranted because the respondent had not been motivated by malice. The respondent's cross-appeal was dismissed without costs. However, their position was clearly correct in the circumstances: it was not appropriate for the trial judge to decline to order costs in their favour on the basis of 'mixed results', because in defamation cases, the results are invariably mixed.