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Civil Litigation, Defamation

OCA dismisses appeal in trailblazing defamation case

The Ontario Court of Appeal’s recent dismissal in a trailblazing defamation case presents interesting commentary around tactical issues at trial and the use of judicial discretion to award aggravated and punitive damages and substantial indemnity costs to sanction those who use the Internet as a defamatory communication tool, says Toronto civil litigator Patricia Virc.

“Persons anonymously using the Internet to intentionally defame and destroy the reputation of another in his or her private life or profession may find themselves paying for their remarks,” Virc tells AdvocateDaily.com.

In Warman v. Fournier, 2015 ONCA 873 (CanLII), Constance Fournier and Mark Fournier appealed a 2014 decision that found Ottawa lawyer Richard Warman was “maliciously defamed” by four commentators on a conservative website the Fourniers moderated.

In January 2014, Ontario Superior Court Justice Robert Smith awarded Warman costs of $62,000 and issued a permanent injunction prohibiting the website from repeating “in any manner whatsoever” any of the 41 defamations, the Ottawa Citizen reports.

The appellants submitted the trial judge erred by: “a) failing to determine, before the case was left with the jury, whether the statements alleged by the respondent to be defamatory and the innuendos allegedly arising from those statements were capable of bearing the defamatory meanings pleaded by the respondent; b) leaving the question of malice with the jury and misdirecting the jury on malice; c) granting a permanent injunction; d) awarding costs against the appellants on a substantial indemnity scale; and e) the jury’s aggravated and punitive damages awards are unreasonable and irrational,” states the Court of Appeal decision.

The three-member appeal court panel rejected all of those arguments and found no errors by the trial judge. In addition to upholding the jury’s damages awards, the appeal court ordered the Fourniers and their co-appellants to pay Warman a further $23,000 in costs.

Virc, a lawyer with Steinberg Title Hope & Israel LLP, says of particular interest is what the Court of Appeal had to say about the argument that the trial judge erred in law by failing to rule, prior to the submission of the case to the jury, on whether the defamatory statements and false innuendos pleaded were capable of bearing the defamatory meanings asserted by the respondent.

“The court essentially says the appellants must bear the consequences of their tactical decisions at trial and that there was no error in the trial judge’s instructions on this issue,” says Virc, who did not act in the matter and makes her comments generally.

“The appellants, having asked for a jury trial and having asked that all the alleged defamatory statements be put to the jury, could not turn around in the Court of Appeal and say that issue was not a proper matter for the jury.”

Another interesting point in Warman, says Virc, is that the Court of Appeal did not agree with the defendants/appellants that a permanent injunction exposed them to indeterminate future liability for the conduct of others.

The court found the trial judge appropriately confined the scope of the injunction granted so as to restrain the appellants only from publishing any statements found by the jury to be defamatory of the respondent.

“Thus, the injunction is not overly broad. It only prevents future postings on the appellants’ website if those postings repeat the defamatory content as found by the jury,” the decision states.

“The appellants argued that an injunction would prevent them from hosting an internet discussion forum, because they could not control what third parties posted to their site,” it continues.

The court disagreed, noting this fear rests on a misapprehension of the basis for liability of a forum host for libelous statements posted by a third party. Liability in that circumstance turns on whether the statements at issue have been deleted by the host after reasonable notice to delete has been given.

“A person is not liable for defamatory content that he or she is not aware of, but may become liable if after becoming aware of the defamatory content the host refuses to remove, obliterate or unlink it," Virc says.

The trial decision in Warman was one of the first to address what constitutes defamation in the political “blogosphere” and reinforced case law that suggests the Internet doesn’t shield anonymous posters from legal action if they wrongfully attack someone’s reputation.

Virc says this legal saga enforces the point that people cannot hide behind screens and anonymous avatars, posting cruel and malicious content. “You can’t just attack someone online. Not only is it cowardly, it could be costly as well.”

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