P. FOLEY QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 249 Date: 2010 07 14 Docket: Q.B.G. No. 457 of 2007 Judicial Centre: Saskatoon BETWEEN: DR. STAN RUBIN and GLENN ROSS, SAM NOWASELSKI and CANADIAN UNION OF PUBLIC EMPLOYEES, Counsel: Catherine A. Sloan for the plaintiff Andrew M. Mason for the defendants JUDGMENT KEENE J. July 14, 2010 OVERVIEW [1] The plaintiff says that his personal and professional reputation has been seriously damaged by defamatory statements made intentionally and maliciously by the defendants. Dr. Rubin claims these statements were publicly communicated by the defendants by means of notices posted on bulletin boards in the plaintiff’s workplace, by means of mass mailing to all members of the Canadian Union of Public Employees, Local 1975 (“CUPE”) and by means of posting on the CUPE website. The plaintiff seeks damages and costs. [2] I have found the plaintiff has proven that he was defamed. However, I have accepted the defendants’ defence of qualified privilege. [3] have made provisional order for damages. [4] have ordered that none of the parties should receive costs. 2. OVERVIEW OF EVIDENCE [5] The plaintiff, Dr. Rubin, received his Bachelor of Science from the University of Alberta in 1976 and his Doctor of Veterinary Medicine from the University of Saskatchewan in 1980. The plaintiff took four-year post-graduate course in Illinois and received Master of Science in 1984. In 1984, Dr. Rubin started work at the University of Saskatchewan as an assistant professor at the Western College of Veterinary Medicine at the University of Saskatchewan in Saskatoon. He received his full professorship in 1991 at the University of Saskatchewan. Dr. Rubin was appointed director of the Veterinary Teaching Hospital (“the VTH”) at the Western College of Veterinary Medicine at the University of Saskatchewan in Saskatoon in May of 2002. [6] The VTH is full-service animal hospital open to members of the public, operating both large animal clinic and small animal clinic. The VTH also serves as the teaching and research facility for veterinarian students enrolled at the Western College of Veterinary Medicine, University of Saskatchewan. The VTH is staffed with university faculty specialist veterinarians, veterinarian interns and students, and associated staff, including technicians, receptionists and clerks. [7] The VTH operations include approximately 600 faculty, staff and students, an annual budget of $7 million and serve approximately 12,000 members of the public each year. The facility is open to the public 24 hours day, days week, 365 days year. [8] As director of the VTH, Dr. Rubin had comprehensive administrative responsibility for the operation of the VTH, including all fiscal and personnel matters, day-to-day operations, strategic planning, risk management, equipment purchases, complaints from the public, and overseeing the planning and implementation of $20 million renovation to the facility. [9] The defendant, CUPE, is trade union certified to represent some employees of the University of Saskatchewan, including some working at the VTH. In the fall of 2006, CUPE (Local 1975) had approximately 1,400 members. About 100 members of the VTH were CUPE members. [10] The defendant, Glenn Ross, was at all material times the president and chairperson of the grievance committee of CUPE. [11] The defendant, Sam Nowaselski, was at all material times the senior grievance officer of CUPE. [12] Dr. Rubin described the labour relations atmosphere at the VTH at the time he was appointed director in 2002 as “quiet”. The exception was workplace situation involving Pam Bowman, veterinary technician employed by the University of Saskatchewan in the Large Animal Clinic and CUPE member. Ms. Bowman complained of harassment by faculty and co-workers. [13] It appears that Dr. Rubin knew Ms. Bowman on personal basis and considered her to be friend of not only himself, but also his spouse. His evidence was that at one stage Ms. Bowman provided him with gifts. Ms. Bowman and Dr. Rubin also had similar interest in horses. Dr. Rubin testified that for several months in 2002, he would arrive at work to find Ms. Bowman waiting for him in hallway. He would take her into his office to listen to her complaints. She often cried in his office. Dr. Rubin testified that he offered her sympathy and support and felt that he was her advocate. [14] In any event, Ms. Bowman’s concerns proceeded to grievance which was resolved in 2004 by an award from an arbitration board. The award was filed as part of evidence in this trial. am satisfied that upon reading the award that it is clear that the Board of Arbitration determined that there was no evidence that Dr. Rubin engaged in any misconduct towards Ms. Bowman, and indeed Dr. Rubin attempted to act as Ms. Bowman’s advocate. [15] Simply put at this stage, it appears that Dr. Rubin was not only friend of Ms. Bowman, but also supporter of her. It certainly appears that he was not harassing her. [16] Ms. Bowman, who had been out of the workplace, was returned to the workplace in 2005. This was accompanied by coordinated effort by CUPE, the University of Saskatchewan Human Resources Department (“HR”), and the VTH to manage her return to work. This involved three types of meetings: (1) weekly “return to work” meetings involving CUPE, HR, and VTH staff; (2) mandatory “respect for workplace” meetings held at different times to accommodate shift workers; (3) “team-building” meetings to help Ms. Bowman get along with her co-workers. code of conduct for employees was being developed. Dr. Rubin testified that he was involved in all of these efforts with the exception of the team-building meetings. [17] The return to work meetings included, at times, Mr. Ross, Mr. Nowaselski, and Lois Lamon, CUPE’s national representative. [18] Dr. Carol Pond, the head of the discrimination and harassment prevention division of the HR was also involved in the weekly return to work meetings. [19] Dr. Rubin testified that he had an excellent relationship with Mr. Ross during this period. He met for lunch with Mr. Ross once week in order to cultivate good labour relations at the VTH. Dr. Rubin testified that they often discussed Ms. Bowman’s re-entry back into the workplace. [20] Dr. Rubin felt that regardless of his opinions about the advisability of Ms. Bowman’s return to work, he never stopped being supportive of her. [21] Mr. Ross and Mr. Nowaselski were witnesses in this trial. note that nothing in either gentleman’s evidence led me to the conclusion that they were in any way perturbed with Dr. Rubin on personal basis. They appear to have had concerns about his ability to rectify the situation with Ms. Bowman and two co-workers. will comment on that below. [22] Ms. Bowman appears to have kept detailed log from May 31, 2005 to January 31, 2006. The log is quite detailed, but upon reading the log in its entirety, have come to the conclusion that she did not record any ill feelings towards Dr. Rubin. [23] Despite the many meetings and efforts undertaken to get Ms. Bowman back to work, she apparently felt that the process was unsatisfactory. In nutshell it appears she believed that two other unionized employees were harassing her. When put together the evidence of all the witnesses that heard, come to the conclusion that Ms. Bowman could be described as hypersensitize. Dr. Rubin seems to feel that she was overstating her problems and possibly wanted preferential treatment. For example, she seemed to want to do “field” work as opposed to being in the hospital. Apparently accommodating her in that fashion may have caused some difficulties with other employees. Mr. Ross seems to agree that Ms. Bowman appeared to be overly sensitive. [24] On March 21, 2006, CUPE filed notice of grievance with the University of Saskatchewan alleging that Ms. Bowman had been harassed since her return to work. The grievance was drafted by executive members of the union (including Mr. Ross and Mr. Nowaselski), in consultation with their legal counsel and national representative. The grievance alleged: Despite the previous findings of personal harassment by the University, have continued to be harassed in the workplace since my return to work. 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. He has completely failed in his duty to provide an harassment free workplace. Human Resources and the Western College of Veterinary Medicine have similarly failed in their duty and the employer is responsible for the failure of its institutions, departments and agencies. The Union maintains that the employer’s actions are violation of the Collective Agreement, including Article 21, and also constitutes tortious conduct, including intentional and/or negligent interference in my economic relations with the University and intentional and/or negligent infliction of mental suffering on myself. The employer’s actions also constitute violation of its duty to provide safe and healthy workplace as required under the Saskatchewan Occupational Health and Safety Act. [Emphasis Added] [25] The above comments are the subject of this lawsuit. [26] It was essentially the evidence of Mr. Ross that in the course of proceeding with Ms. Bowman’s grievance, the defendants wished to discover evidence and locate witnesses who might support Ms. Bowman’s allegations. In an attempt to find witnesses for an arbitration that was to commence on January 25, 2007, the defendants decided that their union members should be made aware of the grievance and the upcoming arbitration. Accordingly, Mr. Ross posted on October 6, 2006 “Notice Re: Harassment Grievance” with the attached grievance report on eight bulletin boards located in the VTH. [27] The purpose of the notice was to encourage potential witnesses to come forward to CUPE. Since the notice is of importance, repeat the entire notice 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 (966-7015) or the National Servicing Representative, Lois Lamon at 382-8262. 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 [28] Under the terms of the collective bargaining agreement between CUPE and the University (Article 6.3), the University was supposed to have designated certain bulletin boards as union bulletin boards. As of October 6, 2006, this had not been done. [29] The notice was posted by Mr. Ross on behalf of the defendant CUPE at approximately twelve noon on October 6, 2006, which was the Friday before the Thanksgiving weekend. The notice was removed from all the bulletin boards by someone from the University of Saskatchewan apparently on the following Wednesday, October 11, 2006. During the long weekend, the VTH part was open to the public, although the college building itself was locked. [30] In addition, CUPE mailed “mini-newsletter” to all its members on or about October 16, 2006. copy of the grievance was included in the newsletter as well. [31] The mini bulletin was also posted on the CUPE website in mid-October of 2006 in section on the website intended for communication with CUPE members. The page containing the grievance and impugned words ended up in the part of the site reserved for archived newsletters. The notice was removed from the website on or about April 20, 2007. [32] Dr. Rubin in due course received copy of the grievance report and was upset about the wording of Ms. Bowman’s grievance. The suggestion that he was not only allowing harassment to take place but that he was an active participant shocked him. He was quite affected by this and in his view it was completely untrue. He believed he had done everything that he thought he could to prevent the harassment. He had diligently participated in the back to work program. Dr. Rubin felt he was still friend and somewhat of an advocate for Ms. Bowman. [33] Dr. Rubin became upset when he learned the grievance report had been posted to the bulletin boards, and had been distributed to some 1,400 CUPE employees through the mass mailout and was also on the website. [34] Mr. Ross and Mr. Nowaselski testified as to the union’s rationale behind supporting the grievance of Ms. Bowman and the wording of the grievance. Their evidence was that Dr. Rubin as head of the VTH seemed unable to stop what Ms. Bowman reported as ongoing harassment by two fellow CUPE employees. This was despite the fact that lengthy back to work program had been ongoing simultaneously for several months. [35] Dr. Rubin testified that after the grievance was published, he experienced difficulties. He believed his capacity to manage the hospital was diminished considerably. He sensed he lost the respect of the staff. He felt the staff challenged him. He stated that work stopped being fun. [36] He testified that he took stock of the situation and decided he could no longer be director of the VTH. Dr. Rubin resigned as director in the spring of 2007 and returned to the faculty ranks at the University, teaching small animal internal medicine as full-tenured professor. [37] The plaintiff’s evidence was that financially this meant difference of about $6,000 per year. Dr. Rubin conceded that there was less stress in his job as professor. [38] Dr. Rubin appears to have decided to move on from the University in Saskatoon. He felt that he was not popular member of the faculty. He perceived “coolness” from the staff and felt that he was “pariah”. He did not provide any clear evidence as to the basis for these conclusions. This seems to have been personal feeling that he developed as these matters unfolded. [39] At this approximate time, he applied for position as director of veterinary teaching hospital at the West Virginia Technical Institute in the United States. Dr. Rubin was not successful in obtaining that position although he was short listed. [40] However, he responded to an inquiry from “headhunter” and was offered and accepted job at private specialty veterinary practice in Tucson, Arizona. [41] Dr. Rubin described this as lateral move from his faculty position at the VTH. He stated his salary is higher, but he had additional expenses such as disability insurance and group medical insurance for his family. Further, he testified his job security was considerably reduced. Dr. Rubin also testified that his wife, who is qualified veterinarian surgeon, was unable to find work in the United States. However, he did indicate that she had not been in the workplace for family reasons in Saskatoon. She now apparently wishes to resume working. In addition, he paid almost $14,000 in legal fees to facilitate his immigration to the United States. 3. LAW AND ANALYSIS Was the plaintiff defamed? [42] The Supreme Court of Canada recently confirmed the elements that plaintiff must prove in defamation case: [28] plaintiff in defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory in the sense that they would tend to lower the plaintiff’s reputation in the eyes of reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on balance of probabilities, falsity and damage are presumed ... The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability. [Grant v. Torstar Corp., 2009 SCC 61 (CanLII), [2009] S.C.R. 640.] [43] The following excerpt from the grievance is the essence of this claim of defamation: 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. [44] The words accuse Dr. Rubin of refusing to prevent harassment and also of taking an active part in the harassment of Ms. Bowman. The impugned wording is all the more troubling because the plaintiff was the director of the VTH and accordingly, the person ultimately responsible for insuring harassment free workplace. [45] am satisfied Dr. Rubin sincerely believed that he was diligently following the back to work program for Ms. Bowman. Further, find that there is no evidence that Dr. Rubin actively harassed Ms. Bowman. [46] The end result is that the plaintiff has proven that he was cast in negative light by the unfortunate wording circulated in the grievance. Harassment in the workplace is very sensitive topic. The plaintiff was accused of refusing to prevent harassment. He was accused of being an active participant in harassment. These allegations would have had deleterious effect on Dr. Rubin’s reputation not only as director but also as an individual. [47] therefore find that the impugned wording would tend to lower the plaintiff’s reputation in the eyes of reasonable person. [48] Accordingly I find that the plaintiff has proven that he was indeed defamed. [49] However, having found that Dr. Rubin has been defamed does not of course end the matter. must now examine the defences that have been raised by the defendants. Jurisdictional Argument [50] The defendants raised an issue of jurisdiction. This matter has been dealt with by previous fiat of Madam Justice Dovell. concur with the reasoning in that fiat and find that there is no basis for jurisdictional defence. The Defence of Absolute Privilege [51] Absolute privilege is found in certain situations and constitutes defence to defamation. Absolute privilege has been defined as follows: An absolute privilege extends to all statements made by high executive officers acting in the performance of their official duties relating to matters of state. The privilege extends to communications by or between high state officials and to or from such officers involving subordinate officer, if the communication with the latter was made at the request, or pursuant to the authority, of the senior official. high official includes senior officers in the military. An absolute privilege also extends to any communications made during the course of Parliamentary proceedings, or any proceeding of its constituent committees, by members of that body or persons appearing before it. Communications made outside the proceedings of that body, even though made by members of Parliament, are not protected by an absolute privilege. There is an absolute privilege for all those communications made in the course of, or incidental to, the processing and furtherance of judicial and quasi-judicial proceedings. To qualify as quasi-judicial proceeding the tribunal must exercise functions equivalent to those of court of justice. Among the attributes of such tribunal are the ability to adjudicate upon and determine rights between competing litigants, to require attendance at public hearing at which the witnesses testify under oath, to administer fines, impose punishment, render decisions and enforce orders. Such proceedings are also governed by principles of fairness and justice with fixed procedure comparable to that of judicial body. The immunity extends to all those persons participating in the proceedings including the judge, jury, witnesses, parties and their counsel, and to the contents of all pleadings and documents filed with the court or matters offered in evidence, and to any actions taken preliminary but necessary to the institution of the action or, following the trial, essential to effect an appeal or execute on judgment. [Raymond E. Brown, The Law of Defamation in Canada, 2d ed., Vol. (Toronto: Carswell, 1999) (looseleaf, current to Rel. 2009-3), at pages 12-2 to 12-3] [52] leading authority regarding absolute privilege is the decision of the Judicial Committee of the Privy Council in O’Connor v. Waldron, 1934 CanLII 273 (UK JCPC), [1935] W.W.R. 1, [1935] D.L.R. 260 (P.C.), at para. 6: The question therefore in every case is whether the tribunal in question has similar attributes to Court of Justice or acts in manner similar to that in which such Courts act? [53] The Privy Council in O’Connor, supra, at para. adopted the reasons of the dissenting justice, Hodgins J.A., of the Ontario Court of Appeal (1931 CanLII 21 (ON CA), [1931] O.R. 608, 56 C.C.C. 296, [1931] D.L.R. 147). Hodgins J.A. stated, at para. [19] The best definition that have found is contained in the last edition of Odgers on Libel and Slander, 6th ed. (1929), p. 195, where it is said that: “An absolute privilege also attaches to all proceedings of, and to all evidence given before, any tribunal which by law, though not expressly Court, exercises judicial functions—that is to say has power to determine the legal rights and to effect (sic) the status of the parties who appear before it. All preliminary steps which are in accordance with the recognised and reasonable procedure of such tribunal are also absolutely privileged. It is not necessary that the tribunal should have all the powers of an ordinary Court.” [54] This definition of absolute privilege was recently affirmed by the Honourable Mr. Justice Allbright in Getz v. Opseth, 2005 SKQB 69 (CanLII), 261 Sask. R. 1, at paras. [12] In considering more closely the issue of absolute privilege, no action for defamatory statements can exist where such statements are made in the course of judicial or quasi-judicial proceedings. Rather such statements are protected by the principle of absolute privilege. This privilege also protects statements which are made in context such that they could be said to be intimately connected to judicial proceeding and all steps preparatory to judicial proceedings. In Dingwall v. Lax [(1988), 1988 CanLII 4716 (ON SC), 47 D.L.R. (4th) 604 (Ont. S.C.)], at para. 16, the court comments: “[16] In my opinion, the draft and letter were intimately connected to judicial proceeding the institution of which was being seriously considered by the defendants. In that respect they fall within the purview of the absolute privilege. As Fleming notes, the privilege extends to all preparatory steps taken with view to judicial proceedings.” [13] Earlier, at para. 9, the court references the text, J.G. Fleming, The Law of Torts, 5th ed. (Sydney: The Law Book Company Limited, 1977), in the following fashion: “[9] In support of their argument, defendants rely on Fleming, The Law of Torts, 5th ed. (1977), where he writes (at pp. 551-2): ‘The privilege is not confined to statements made in court, but extends to all preparatory steps taken with view to judicial proceedings ... But the statement or document must be directly concerned with actual or contemplated proceedings ... ‘The privilege attaches to any utterance reasonably related to the subject of the judicial inquiry ...’” (emphasis in original quote) [55] The Trade Union Act, R.S.S. 1978, c. T-17, s. 25 establishes mandatory arbitration for the resolution of labour grievances and empowers the arbitration board/chairperson with court-like functions and powers: 25(1) All differences between the parties to collective bargaining agreement or persons bound by the collective bargaining agreement or on whose behalf the collective bargaining agreement was entered into respecting its meaning, application or alleged violation, including question as to whether matter is arbitrable, are to be settled by arbitration after exhausting any grievance procedure established by the collective bargaining agreement. (1.1) Subsections (1.2) to (4) apply to all arbitrations pursuant to this Act or any collective bargaining agreement. (1.2) The finding of an arbitrator or an arbitration board is: (a) final and conclusive; (b) binding on the parties with respect to all matters within the legislative jurisdiction of the Government of Saskatchewan; and (c) enforceable in the same manner as an order of the board made pursuant to this Act. (2) An arbitrator or the chairperson of an arbitration board, as the case may be, may: (a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner as court of record in civil cases; (b) administer oaths; (c) accept such oral or written evidence as the arbitrator or the arbitration board, as the case may be, in his or its discretion considers proper, whether admissible in court of law or not; (d) enter any premises where work is being done or has been done by the employees or in which the employer carries on business or where anything is taking place or has taken place concerning any of the differences submitted to him or it, and inspect and view any work, material, machinery, appliance or article therein, and interrogate any person respecting any such thing or any of such differences; (e) authorize any person to do anything that the arbitrator or arbitration board may do under clause (d) and report to the arbitrator or the arbitration board thereon; (f) relieve, on terms that, in the arbitrator’s opinion, are just and reasonable, against breaches of time limits set out in the collective bargaining agreement with respect to grievance procedure or an arbitration procedure; (g) dismiss or reject an application or grievance or refuse to settle difference if, in the opinion of the arbitrator or the arbitration board, there has been unreasonable delay by the person bringing the application or grievance or requesting the settlement and the delay has operated to the prejudice or detriment of the other party; and (h) encourage settlement of the dispute and, with the agreement of the parties, may use mediation, conciliation or other procedures to encourage settlement at any time during the arbitration. [56] Our Saskatchewan Court of Appeal in Fletcher Challenge Energy Canada Inc. v. Sulz, 2001 SKCA 11 (CanLII), 203 Sask. R. 115, [2001] W.W.R. 476, at para. 23 (although in that case the Surface Rights Board of Arbitration) held: 23 Although the Board is not bound by the formality of judicial procedure, an arbitration before it is nonetheless the functional equivalent of judicial or quasi-judicial proceeding. Where member of the Board is interested in matter before the Board, the Lieutenant Governor in Council may appoint some disinterested person to act as member of the Board in place of the interested member with respect to that matter only: See s. 11(1). The legislation is consistent with the traditional requirement of “fair hearing” before judicial or quasi-judicial tribunal. [57] Mr. Justice Lane of the Ontario Court of Justice in Venneri v. Bascom (1996), 1996 CanLII 7972 (ON SC), 28 O.R. (3d) 281 (Gen. Div.), [1996] O.J. No. 890 (QL), at paras. to 12 writes: ... The defendant submits that publication of defamatory material to judicial proceeding, including an arbitration of grievance under collective agreement, is an occasion of absolute privilege and no action lies. ... The board of arbitration has similar attributes to court and is therefore within the privilege: it proceeds in manner similar to court; its object is to arrive at judicial determination and it is recognized by law: Lincoln v. Daniels, [1962] Q.B. 237 at p. 253, [1961] All E.R. 740 (C.A.); School Boards and Teachers Collective Negotiations Act, R.S.O. 1990, c. S-2, s. 52. Accordingly, conclude that no action lies against this defendant, the Board, or anyone else involved, for the act of putting the letter into evidence at the arbitration hearing. ... [58] Therefore, find that an arbitration board or hearing under The Trade Union Act is quasi-judicial proceeding. [59] The defendants submit that the evidence establishes that the defendants prepared and distributed the grievance in preparation for and as part of quasi-judicial proceeding: the arbitration hearing of the Bowman grievance. [60] In Getz, the court held that the sending of correspondence was in preparation of proposed legal action and was, therefore, protected by absolute privilege. The defendants submit that the authors of the grievance report should enjoy absolute privilege regarding the impugned wording contained in the grievance report. [61] The defendants further submit that the evidence established that the notice and the attached grievance were published in limited fashion for the purpose of seeking witnesses for the actual arbitration hearing that the union was expecting early in 2007. The defendants argue that the witnesses would be needed to support the grievance. The defendants further argue that the steps taken by the union to post and distribute the notice and grievance were preparatory to the grievance hearing itself. [62] However, am not prepared to allow the defence of absolute privilege to succeed in this case. [63] Firstly, the defence is usually considered in the context of the actual hearing before the quasi-judicial body. [64] acknowledge, upon reading the learned author Brown’s excellent discussion on “Communications Outside of Privilege” (see pages 12-276 to 12-288) that circumstances do arise where statements outside of the actual hearing may be subject to the defence. (See also Brown under the headings “Investigative Reports to Determine Legal Position”, “Information Given to Initiate Legal Proceedings”, and “Information Given to Investigative Bodies” all found under c. 12.4(5), “Matters to Which Privilege Attaches”.) [65] Accordingly, the common law for some time now seems to be favoring extending the cloak of absolute privilege to what has been described as “steps preparatory to judicial proceedings” (see above quote from Getz). [66] However, note Allbright J. refers to such statements made in preparatory fashion as being “intimately connected to judicial context” (see para. [67] As well, in Venneri, Lane J. was writing about the actual filing of letter at the grievance hearing. Venneri stands more for the proposition that grievance arbitration hearings are quasi-judicial bodies than the concept that documents prepared beforehand are always protected. [68] The facts of this case militate against finding that the grievance report as published (i.e. on eight public bulletin boards, mass mailout, and on the internet) is in that context intimately connected to the quasi-judicial body. [69] The defendants by their own explanation rationalize the need for such extensive publication of the grievance report as means to gain further information and potential witnesses for the upcoming arbitration. [70] This in my opinion seems to fall more into the defence of qualified privilege than in what surely is the more restrictive defence of absolute privilege. [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. [72] Therefore, as indicated, reject the defence of absolute privilege. Qualified Privilege [73] Brown provides the following summary at pages 13-4 to 13-5: 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 is called 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. An occasion is privileged if statement is fairly made 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. privilege is recognized where person seeks to protect or further his or her own legitimate interests, or those of another, or interests which he or she shares with someone else, or the interests of the public generally. It does not extend to comments that go beyond the exigency of the occasion or which are communicated to those who have no interest in receiving that information. [74] In addition, Brown at pages 13-208 to 13-212, discusses unions and qualified privilege as follows: (ii) Unions (A) Communications on Union Affairs. Members of trade union are interested in information about the activities of their officers and committees acting on their behalf. union, its officers and members may circulate information among themselves concerning the qualifications of officers and the participation by them and other members in the affairs of the union. This includes the use of union newspaper to circulate its views and keep its constituency advised of its activities, policies and actions taken with respect to the members. With regard to internal union newspaper communications by its officials to the membership, trial judge has said: “An occasion is privileged 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 made has corresponding interest or duty to receive it. ... Canadian U.E. News’ was the organ whereby the members and prospective members ... were kept advised as to the activities concerning them within the ranks of that part of the union. find that the members of the union ... had right to be kept aware of the activities of the elected members charged with the administration of at least the rights of the actual members of the union; and that correspondingly there was duty on the part of the elected members to inform (at least) the members of what steps or actions were being taken ... to safeguard, better, or otherwise improve the working conditions of the latter.” union newsletter may be distributed to the membership following strike criticizing the actions of management in rehiring replacement workers and in the process refer to them as “scabs” and criticize their honesty and integrity. union and its officers are privileged to criticize the character of the union lawyer at union meeting, with reference to his billings for legal work performed, or the conduct and activities of union vice-president, or the conduct of union secretary in the performance of his duties. It is privileged to circulate to its membership report and minutes of conference which included resolution passed by the conference relating to allegations made against member, or to report to the members shortages in the accounts of its financial secretary, or to summarize the findings of union executive board concerning charges preferred against the plaintiffs. The president of union may inform the staff relations committee of the union and the governing council the reason why business representative for the union was being terminated. The president of union and member of local may criticize the conduct of the president of the union local and the president may recommend his removal to the governing council. Union councillors may criticize members of the union council in the union newspaper with respect to public opposition on their part to decision by the union to stop work. The members of union are privileged to criticize union officials in the conduct of union affairs. union member may report at general meeting on the actions of fellow trade unionist who has acted against the interests of the union during strike. He may file an affidavit at the request of union agent for hiring hall setting forth certain incidents by another member of the union to be used to prefer charges against that member at meeting of the union. Statements made by union members appearing before union disciplinary committee are protected by qualified immunity. Where appropriate disciplinary proceedings are taken against member or officer, the charges made, the testimony given and the report of the disciplinary action taken, will be protected by qualified privilege. trade union is privileged to inform its membership about the activities of another union whose collective bargaining posture has had an adverse impact on its own collective bargaining with the same company. (B) Communications on Employer-Employee Affairs. union and its officers may provide information to the union constituency regarding matters of employment interest affecting individual employees. It may satisfy members with respect to the reasons why an employee, who was member of the union, was discharged. Thus in Fisher v. Rankin [1972 CanLII 1535 (BC SC), [1972] W.W.R. 705 (B.C.S.C.)] communication to joint standing grievance committee attributing the plaintiff’s discharge to deceitful and dishonest entry into the mill was reported in the union newspaper and posted on the union bulletin board in the mill. These publications were held to be privileged. The same conclusion was reached in Hebert v. Jackson [1950 CanLII 58 (ON CA), [1950] O.R. 799 (C.A.)], although the court was unwilling to extend the privilege to subsequent editorial following the plaintiff’s discharge which described the plaintiff as “an unscrupulous individual”. It was the court’s opinion that once the plaintiff had been removed as member of the union, the opinion of the editor was of no interest to other members of the union. union newspaper is entitled to report on pending grievances, and to advise its membership on the activities of various employees during the period of strike, including the alleged “treachery” of plaintiff who was fired by the union. It may communicate to its members information regarding public labour dispute, express its disatisfaction (sic) 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. (C) Scope of Privilege. The publication must be made in good faith, on proper occasion, in proper manner and to appropriate parties. The privilege will be lost if it is abused by excessive publication or if the occasion is used for some improper purpose. Like intra-corporate communications, union’s incidental communication to outsiders will not defeat the privilege if the means chosen to communicate the information are otherwise reasonable and appropriate persons within the union, the fact that the recommendation made and the action taken in response to it goes beyond the authority granted by the constitution of the union does not destroy the privilege. The 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. [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. [78] The protection afforded by the defence of qualified privilege is not lightly removed. It can however be lost when there is an evidential finding that the dominant purpose was malice. [O’Halloran v. Pope (Teamsters, Local 987 v. U.F.C.W., Local 401), 2005 ABCA 263 (CanLII), [2006] W.W.R. 16, 258 D.L.R. (4th) 333.] [79] As stated by Cory J. in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] S.C.R. 1130, [1995] S.C.J. No. 64 (QL), at para. 144: The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice. See Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 149. [80] The Alberta Court of Appeal in O’Halloran, supra, at para. 26 set out the following five-point test for assessing the defence of qualified privilege: 1. The defence of qualified privilege is not absolute. 2. If actual or express malice is the dominant motive for publishing the statement, the privilege is defeated. 3. If the occasion is shown to be privileged, not all statements made on the occasion will be protected by the privilege. 4. statement which is not reasonably appropriate in the context of the circumstances existing on the occasion will, if defamatory, not be protected by the privilege. statement will not be reasonably appropriate if it is the product of indirect motive or ulterior purpose or if it conflicts with the sense of duty or the mutual interest that the occasion created. 5. If the defendant is acting in accordance with sense of duty or in bona fide desire to protect his own legitimate interests, knowledge that publication of the statement will have the effect of injuring the defendant is insufficient, standing alone, to destroy the privilege. At para. 27, the court in O’Halloran concludes: 27 In my opinion, the trial judge failed to apply these principles to the facts of the case. The trial judge equated any evidence of malice as sufficient to discharge the Respondents’ onus. He, with respect, failed to consider fully the context of the occasion in which the statement was made, the dominant motive, the protection of legitimate interests and the sense of duty and mutual interest which the occasion created. [82] The defence of qualified privilege brings with it necessary discussion of the principle of malice and whether the plaintiff has proven that the defendants acted with dominantly malicious purpose with the inclusion of the impugned statements in the grievance report. [83] The learned author Brown at page 16-2 provides summary of malice as follows: Publications that are protected by conditional or qualified immunity, or by the defence of fair comment, may be defeated by evidence of actual or express malice. Malice may be shown if it is proven that the defendant used the occasion upon which the immunity is founded for some wrong or improper purpose or motive, other than the interest which gave rise to the privileged occasion, or that he or she spoke dishonestly or in knowing or reckless disregard of the truth. It may be proved both by inferences to be drawn from the language of the defamatory statement itself, when it contains unnecessary violence or intemperance of expression, or by evidence extrinsic to the publication, such as the nature and character of the relationship between the parties, the mode and extent of publication and the conduct of the defendant in publishing it. [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. [89] note that the plaintiff attempted to show improper motive by trying to depict some sort of conspiracy between faculty member, Ms. Bowman and legal counsel for the union. The plaintiff did not come close to proving this, and it was unfortunate that this theory was launched at trial. Nor am persuaded that the union was using this grievance to push back at the University of Saskatchewan itself in broader sense. These two theories were simply not proven. [90] Therefore, the defence of qualified privilege succeeds. 4. THE DEFENCES OF RESPONSIBLE COMMUNICATION AND FAIR COMMENT [91] In my view, the case of Grant v. Torstar Corp. is not applicable to this situation. This is not case of broad-based media seeking the protection of the defence granted under that decision. 5. DAMAGES (Provisional) [92] Although have found above that the defence of qualified privilege has succeeded and therefore the plaintiff’s action has failed, will provide my opinion on damages on provisional basis. [93] In regard to general damages the trial judge in Dinyer-Fraser v. Laurentian Bank, 2005 BCSC 225 (CanLII), [2005] B.C.J. No. 309 (QL), states as follows: 240 In Hill, the Supreme Court of Canada affirmed that confluence of circumstantial factors are relevant to the assessment of general damages. They include: (1) the plaintiff’s position and standing; (2) the nature of the libel; (3) the mode and extent of the publication; (4) the possible effects of the statement upon the plaintiff’s life; (5) the absence or refusal of retraction or apology; and (6) the motivation and conduct of the defendant throughout the action .... [94] have previously made reference to the plaintiff’s background and education. [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. [103] Dr. Rubin complains that his spouse has not found employment in the United States. The plaintiff further states that it has cost him some money to obtain the necessary immigration qualifications to work in the United States. heard no evidence as to what the cost of living in Tucson might be as compared to Saskatoon, and what the tax rates in the State of Arizona might be as compared to those of Saskatchewan, etc. [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. [105] Regarding aggravated or punitive damages, Brown states at pages 25-66 to 25-70: (ii) State of Mind “Malice is an important element to be considered in fixing or assessing the damages”. Therefore, the court may take into consideration the presence of actual malice, or “wanton and malicious conduct” on the part of the defendant. It may be shown to enhance the award. “[T]he amount of damages should be governed or graduated by the degree of malice by which defendant was actuated. It is assumed that if the plaintiff is aware of the malicious purpose of the defamer, it may affect the amount and intensity of his or her mental suffering and injury to feelings. For that reason, the personal motives of defendant may be examined. Any evidence of express malice may be weighed against the defendant. jury is “entitled to consider the whole spirit and intention with which the articles were written and published. This is true even though the malice consists of other defamatory remarks. Evidence of the spirit and intention with which person defames another “cannot be excluded simply because it may disclose another and different cause of action. Malice may be shown if the publication of the defamatory remarks is intentional, or they are “reckless and deliberately damaging”. Therefore, the defendant’s intention to defame, or fabrication of the defamatory remarks, or even the failure of the defendant to inquire where he or she possesses the means by which its truth or falsity could be ascertained, particularly where the information is readily available, there is ample time to check it, and the defamatory material is particularly damaging to the plaintiff’s reputation, are aggravating circumstances. The defendant’s cavalier attitude, recklessness and lack of consideration for others, or bad faith and gross negligence, or general bad motive or evil purpose, or lack of justification in making the remarks, may also be taken into consideration in increasing damages. Apart from any question of privilege bona fides is always material upon the question of damages. plaintiff may offer evidence to prove lack of good faith absence of honest belief on the part of defendant in order to aggravate his damages; defendant may, in like manner, give evidence to shew that he acted in good faith to mitigate the damages. The fact that he or she made the remark in the face of denial by the plaintiff may be considered as an aggravating factor. Also considered an aggravating circumstance is the contemptuous remark by the defendant that “to be dragged into court like this is more than making mountain out of molehill.” [106] In my opinion, this is not situation for aggravated or punitive damages based on the evidence. If was to award damages, such damages would be general damages only. Nor would have ordered special damages based on the evidence. Dr. Rubin’s claim for special damages appears to have boiled down to his legal fees for immigrating into the United States. I am not satisfied that the defendants should bear the responsibility of these expenses for the decision by Dr. Rubin to leave the University of Saskatchewan and take what he describes as a lateral employment opportunity in Tucson. Further, Dr. Rubin did not appear to be interested in finding employment in Canada, and deliberately chose to move into another country which by that very fact, would necessitate immigration expenses. [107] Counsel for the defendants urge only nominal damages. Counsel on behalf of the plaintiff has requested very significant damages. [108] The awarding of damages and particularly in defamation case is particularly subjective. In this case we have plaintiff who was defamed, but within the context of his administrative functions vis-à-vis an unfortunate and protracted labour relations situation. [109] am not satisfied that the level of insult and level of loss of reputation in this particular case are consistent with the sizable damage awards urged by plaintiff’s counsel. There was no evidence that anyone forced Dr. Rubin to take the steps he did (i.e. self-demotion and subsequently obtaining employment in foreign country). [110] Therefore, I have come to the conclusion that a fair amount of general compensation for Dr. Rubin would have been $25,000. COSTS [111] I have found that Dr. Rubin indeed was defamed. However, the defendants have successfully raised the defence of qualified privilege. Accordingly, there were mixed results in this litigation. Therefore, I have decided to exercise my discretion and not to award costs to any party (excepting of course any award of costs already ordered).
The plaintiff veterinarian states that his personal and professional reputation has been damaged by defamatory statements made by the defendants. He worked at the veterinary college at the University of Saskatchewan, and an employee was involved in a grievance process. The plaintiff was involved by virtue of his supervisory position at the college. He asserts these statements were posted on bulletin boards in the plaintiff's workplace and postings on the union website. The statements were produced in connection with the labour grievance and alleged that the plaintiff failed to prevent harassment in the workplace in supervisory capacity or engaged in such harassment himself. The plaintiff seeks damages and costs. He states that he was pushed to leave his employment and is now engaged in private practice which pays less and is not as stable. He has incurred costs to move to the United States to obtain employment.HELD: The elements of defamation are: 1) the words would tend to lower the plaintiff's reputation in the eyes of a reasonable person, 2) the words in fact referred to the plaintiff, and 3) the words were published (Grant v. Torstar Corp.). In these circumstances, the plaintiff was defamed. The defendants raise the defence of absolute privilege. This defence provides that 'no action for defamatory statements can exist where such statements are made in the course of judicial or quasi-judicial proceedings' (Getz v. Opseth). The Trade Union Act establishes mandatory arbitration for the resolution of labour grievances and empowers the arbitration board or chairperson with court-like functions and powers. The Saskatchewan Court of Appeal has found that an arbitration board fulfills quasi-judicial function (Fletcher Challenge Energy Canada Inc. v. Sulz). The Court does not allow the defence of absolute privilege as it is usually considered in the context of the actual hearing before the body. In this case, the statements were produced as a notice in order to bring further witnesses forward from the college. The Court instead determines the statements fall within the defence of qualified privilege. This applies in a situation where the statements are made in order to discharge the board member's duty. The Court finds the statements were made in order to gather further evidence and witnesses, which is part of the board's duties. The protection of qualified privilege may be removed on where there is evidence that the dominant purpose of the statements was malice. There is no such evidence in this case, therefore the defence of qualified privilege succeeds. Nonetheless the Court provides an opinion on damages on a provisional basis. There was no evidence that the plaintiff was forced to leave his position and move to the United States following the incident. The Court therefore concludes fair compensation would be $25,000. Since the results are mixed, there is no award of costs.