COURT FILE NO.:  CV-03-3039

DATE:  2009/05/20

ONTARIO

SUPERIOR COURT OF JUSTICE

REASONS FOR JUDGMENT

BORKOVICH, J.

The Parties

[1]      The parties to this action are as follows:

(a)              The plaintiff Lynda Powless, who, at all material times herein was the owner of the Turtle Island News Publication and Chairperson of the Six Nations Cultural and Historical Association, (hereinafter referred to as “SNCHA”).

(b)            Shirley W. Smith is represented by her Litigation Guardian, G. Scott Smith.  She is the former editor of the Takawennake News, (hereinafter referred to as the “Teka”) and therefore at the commencement of this action, she was referred to on the masthead of the Teka as publisher emeritus.

(c)              G. Scott Smith is the son of Shirley Smith and was the editor of the Teka.

(d)            James Windle was a reporter for the Teka.

(e)              1374078 Ontario Limited is the operator of the Teka newspaper.

Background

[2]      On September 24, 2003, the Teka published on the front page of its edition an article entitled “Six Nations Tourism – What Went Wrong?”  The article was written by the defendant James Windle, and the Defendant G. Scott Smith as editor, authorized its publication.  It is the plaintiff’s position in this lawsuit that the article contained references to her role as chairperson of SNCHA that were untrue and libelous and as a result, she commenced this action.

[3]      It is the position of the defendants that the article as it refers to the plaintiff is not libelous, is true and is fair comment made without malice.

The Allegations of Libel

[4]      Paragraph 10 of the Amended Statement of Claim contain the particulars of the allegations of libel.  By way of an order dated January 8, 2009, paragraph 10(j) and 10(k) were dismissed and the remaining paragraphs 10(d) through 10(i) remain in issue. 

Issues:

[5]      Issue #1       Are the many references to the plaintiff’s conduct mentioned hereto defamatory in the sense that those remarks tend to lower the reputation of the plaintiff in her community and in the estimation of “reasonable” people.  In other words, are the words written defamatory of the plaintiff?   If they are not defamatory, then the plaintiff’s action must fail.

[6]      Issue #2       If on the other hand, the words written are defamatory of the plaintiff, then the defence of justification or truth must be considered. 

[7]      Issue #3       In the event that justification or truth may be objectively established, such defence can be defeated by the plaintiff demonstrating malice on the part of the defendants’ finding in respect of whether or not the words written are defamatory. 

[8]      A perusal of the article leads a reasonable person to conclude that the answer to the question in respect of what went wrong with Six Nations Tourism related to the incompetence of the Board including its chairperson, her failure at cooperating with other tourism members to implement the Net Gains recommendation, her incapacity to lead and her lack of judgment.

[9]      I conclude that the words are defamatory in that the words impute conduct by the plaintiff that lowers her reputation in the eyes of a reasonable person.

[10]                          Having concluded that the words complained of are defamatory, then the defences of truth or fair comment must be considered defences.

Truth

[11]                          As Peter A Downard in his article in Butterworths, December 20003 has stated “defamatory words are presented to be false.  Truth is a defence.  The onus is upon the defendant to displace the presumption of falsity by establishing the truth of the defamatory words as a matter of fact”. 

[12]                          While the defendants have raised truth as one of their defences, they have devoted little in no time to the issue in their submissions except in the context of the defence of fair comment.

Fair Comment

[13]                          In respect of this issue, the defendants have set out the test to be considered in dealing with the issue of fair comment:

(i)               the comment must be on a matter of public interest;

(ii)              the comment must be based on fact;

(iii)            the comment, although it can include references of fact, must be recognizable as comment;

(iv)            the comment must satisfy the following objective test - could any person honestly express the opinion on the proven facts, and

(v)              even though the comment satisfies the objective test, the defence can be defeated if the plaintiff proves the defendant was subjectively actuated by express malice.

Findings of Fact

[14]                          Having set out the law, it is necessary to establish the facts and apply the established facts to the law.  Obviously in this trial, credibility is of prime importance, and, in particular, the credibility of the plaintiff.  Is assessing her testimony, I have concluded that she is a strong-willed person, that she is used to running the show and is autocratic.  I have concluded that she was the Board and that the other members were merely her appointees whose tenure on the board was at her will.  She is a person who regards criticism of her role as chairperson of SNCHA to be an attack upon herself rather than as a criticism on the manner in which the tourism board was functioning. 

[15]                          It is clear on all the evidence before me that she was suffered no damages financially or otherwise.  Her reputation as a powerful force in the aboriginal community in Canada is unsullied.  It is clear on the evidence before the court, that she harbored a grudge against the defendant Windle and that she had had a previous run-in with the operator of Teka.  Defence counsel have correctly submitted that the only evidence of malice comes from the plaintiff.  While I find the words in the article to be defamatory, I have done so in the legal sense.  The insult is minor. 

[16]                          Nevertheless, after having heard all the evidence and the written submissions of counsel, I have concluded that the defamatory words complained of by the plaintiff are, in fact, substantially true and constitute fair comment on a matter of public interest and expressed without malice. 

Judgment

[17]                          Having found that the defamatory comments are substantially true, and, are fair comment made without malice, I find that the plaintiff has failed to prove her case.  Her action is dismissed with costs to the defendants.  If the parties cannot agree on the quantum of costs, they may make written submissions in that regard. 

___________________________

Borkovich J.

Released:   May 20, 2009

COURT FILE NO.:  CV-03-3039

DATE:  2009/05/20