


COURT OF APPEAL FOR ONTARIO

CITATION:
Simao v. Hankook
    Ilbo, 2012 ONCA 175

DATE: 20120321

DOCKET: C52851

Sharpe, Armstrong and Watt JJ.A.

BETWEEN

Yolanda Simao

Plaintiff (Appellant)

and

Hankook Ilbo & The Korea Times Limited and
    Soh Young Jeong

Defendants (Respondents)

James F. Diamond, for the appellant

Bruce G. McEachern, for the respondents

Heard: February 8, 2012

On appeal from the judgment of Justice Randall S. Echlin
    of the Superior Court of Justice, sitting with a jury, dated October 12, 2010.

Sharpe
    J.A.:

[1]

In this libel action, the jury found that the newspaper articles upon
    which the appellant sued did not defame the appellant. The appellant concedes
    that the trial judge properly instructed the jury on the issue. However, she
    asks us to overturn the jurys verdict as perverse and to enter judgment in her
    favour.

[2]

For the following reasons, I conclude that the appellant has not met the
    high threshold of demonstrating that the verdict was so plainly unreasonable
    and unjustthat no jury reviewing the evidence as a whole and acting judicially
    could have reached it:
McCannell v. McLean
, [1937] S.C.R. 341, at p.
    343.

[3]

Accordingly I would dismiss the appeal.

FACTS

[4]

The appellant and her husband are the principals of an immigration
    consulting firm, ProLegal Consulting Group. The respondent Hankook Ilbo &
    The Korea Times Limited operate a Korean-language newspaper, the Korea Times
    Daily, for which the respondent Soh Young Jeong is a reporter. The Korea Times claims
    a circulation of over 100,000 in the Canadian Korean community.

[5]

On February 17, 2007, Korea Times published the first of a series of articles
    written by Jeong, chronicling the plight of 24 South Korean truck drivers who
    claimed that a company, ULSC, and its principal, Geunsuk (Justin) Park, had
    induced them to come to Canada to work. According to the article, the workers
    paid ULSC substantial fees to arrange the work permits. The Korea Times
    reported that despite Parks representations and inducements, the workers never
    found employment in Canada. Simao was mentioned in these articles.

[6]

Simao, who does not speak Korean, was retained by Park. He asked her to
    help find a trucking firm that would fulfill the requirements of the Government
    of Canadas Foreign Worker Program. Simao contacted several trucking firms and
    eventually reached Bill Kalbhenn of Highland Trucking who expressed interest in
    hiring the Korean drivers. Simao submitted an application for a positive labour
    market opinion (LMO) to Human Resources Skills Development Canada (HRSDC)
    on behalf of Highland Transport. An LMO was required to enable the truck
    drivers to obtain the necessary work permits. The application prepared by Simao
    included 24 HRSDC employment contract forms signed by Kalbhenn on behalf of
    Highland. HRSDC provided Simao with the required LMO. Once Simao had obtained
    the LMO, her formal involvement ended and she was paid a fee of $60,000. Highland
    required the drivers to have English language proficiency, a commercial
    drivers licence, two years experience and a US FAST card. As of the date of
    the article, none of the truck drivers had been employed by Highland as the
    company considered their English language proficiency to be inadequate.

[7]

While four subsequent articles were published, it is common ground that
    this appeal turns on the February 17, 2007 article entitled Facing Prospects
    of becoming an Illegal Alien due to Broken Promise of Employment Because of
    its central importance to this appeal, I set out that article in its entirety.

Facing
    Prospects of becoming an Illegal Alien due to Broken Promise of Employment

Korean
    Truckers report an Immigration Consulting Firm

Consulting
    fee plus driving school tuition paid but employment is put off day by day

An Immigration Consulting Firm operated by Koreans was reported
    to the regulating body of the Immigration Consultants for getting a significant
    amount of fees but not fulfilling the promise of employment as a condition of
    paid consultation.

Mr. Geunsuk Park (a.k.a. Justin) has been operating a company
    named ULSC Immigration Inc. together with his sister in Seoul as a
    headquarter and a branch in Toronto. They received more than $13,000 in average
    from each applicant on the condition they would obtain a working visa and a
    job. In addition, they also received license procuring fees. The employment
    positions were truck driver, home caregiver and mechanic. The number of
    applicants is estimated to be approximately 60.

Mr. Jiho Kim (fictitious name), who was a truck driver in
    Korea, and tens of other victims who could not find jobs a few months after
    being issued the working visa and are about to become illegal, filed complaints
    about Mr. Park and his legal representative, Yolanda Simao, to the
    self-regulating body of immigration consultants, the Canadian Society of Immigration
    Consultants (CSIC).

Mr. Kim, who filed the complaints to the CSIC as the
    representative of the victims, said, It was not easy to complain to the police
    to obtain an investigation because the immigration status of all victims is
    insecure. After finding out that Simao, who signed the various contracts, is a
    member of the regulating body, we have spent a long period of time anguishing
    and eventually decided to file the complaints. As the situation develops we
    will report the case to the police as well.

After being told at the Employment Presentation given by ULSC
    held in Seoul that once employed as a truck driver in Toronto, his yearly
    income of $50,000 would be guaranteed and the benefit of permanent residency or
    better comes with it. Mr. Kim paid 7,800,000 won.  5 to 6 months later, Mr.
    Park advised Mr. Kim to come to Canada with his family. Mr. Kim arrived at
    Toronto in July last year together with his family members and obtained a
    working visa in Buffalo, U.S.A. in October last year.

Meanwhile, Mr. Kim obtained an Ontario Truck Drivers License
    (AZ) from A Driving School which was introduced to him by Mr. Park.  The
    tuition was $6,000 for 40 hours of training. It was quite a lot of money, but
    I and others were full of hope because we were told that we would be able to
    earn $18 an hour from the H trucking company in Toronto once we are licensed,
    said Mr. Kim.

Empty Employment Promise

However, there is still no prospect of any job even 4 months
    after they obtained the working visa. The representative of the above trucking
    company said in a telephone conversation with this newspaper on the 16
th
,
    I met with Korean students of the driving school several times and told them
    through Simao that I will hire them once they are qualified. But most of them have
    communication problems and were without a FAST Card (Free And Secure Trade
    Card) which is necessary to enter the U.S. freely and these made the employment
    situation difficult. I have never entered into the employment contract which
    they insist that they received. The signature alleged to be mine on the
    contract must have been faked.

Mr. Kim insisted, The contract was made without an interview,
    not to mention knowing the location of the company. Mr. Park promised to open a
    separate Korean department with a Korean interpreter in the trucking company
    since there were tons of prospective Korean drivers in the trucking company in
    order to create a working environment without worrying about the language.

To this, Mr. Geunsuk Park explained, We obtained the
    employment contract from the company for the applicants based only on
    documents, such as resumes and employment history certificates, because of the
    long distance. But after the working visa was issued, the employment promise
    could not be kept because their lack of communicating ability became an issue.
    He continued, The contracts were made by Simao on behalf of the company and
    the applicants. A 100% refund is warranted if the employment is not successful
    within one month. According to Mr. Park, there are 40 people who obtained the
    working visa already and 10 more are waiting for the visa. There are 10
    students enrolled in the driving school.

The promise of employment within one month has been given
    repeatedly for a few months. Someone even got a promissory note from Mr. Park,
    but it was useless. There are still many people with a Canada Dream in the
    processing stage in Korea. Further damages should be stopped, the victims
    insisted in strong voices.

The victims who range between mid-forties and early fifties in
    age say in one voice that they are unable to work, their children cannot enroll
    in Canadian schools, they have financial difficulties and some even have family
    problems. They further voiced that all they want is to work legally in this
    country through whatever route possible.

[8]

The Korea Times eventually published a correction piece two years
    later:

This is to clarify The Korea Times Daily articles that were
    published on February 17, 21, and 23, 2007, which focused on Korean truck
    drivers and their immigration issues.

The article stated that Ms. Yolanda Simao was the legal
    representative of Mr. Park, Geun Seok and ULSC. This was not correct. Although
    this was mentioned in a phone conversation with Mr. Park on February 16, 2007,
    Ms. Simao asserts that she was not retained or engaged by the truck drivers,
    and acted solely for ULSC.

Ms. Simao did not sign any employment contracts between the
    truck drivers and the truck company H, as incorrectly mentioned in the news
    articles.

The Canadian Society of Immigration Consultants (CSIC)
    concluded last March that she did owe some duties to the drivers, and did not
    provide complete service to them.

TRIAL AND JURY VERDICT

[9]

Simaos position at trial was that the article leaves a reader with the
    impression that she was instrumental in a scheme to take advantage of the
    vulnerable Korean truck drivers and that she was guilty of fraud or forgery.

[10]

Simao
    contended that Jeong had written the article in a mad rush to avoid being scooped
    by another paper and that she had failed to conduct an adequate investigation.
    Particular attention was given the quotation attributed to the representative
    of Highland, Bill Kalbhenn. Jeong had called Kalbhenn as he was catching a
    plane. He asked Jeong to wait until his return to Toronto so he could review
    the HRSDC documents that she claimed were Highland employment contracts.
    However, Jeong pressed on with the interview, and quoted Kalbhenn (as an
    unnamed representative of Highland) as saying I have never entered into the
    employment contract which they insist that they received. The signature alleged
    to be mine on the contract must have been faked. On cross-examination, Jeong
    admitted that these were not his exact words. A tape recording of the
    conversation showed that Kalbhenn denied signing employment contracts with the
    workers. Although he said that there must have been some funny work behind the
    scenes, and that somebodys added or changed or altered or something like
    that, he did not say that his signature had been faked.

[11]

Simao
    advanced a substantial claim for general, aggravated and punitive damages.
    Before this court, her counsel conceded that the respondents had succeeded in
    undermining the evidence and the expert opinion Simao submitted to support the
    claim that she lost income between $194,625 and $360,389.

[12]

The
    respondents position was that the focus of the article was on Park and ULSC as
    the culprits in a scheme that left the South Korean truck drivers stranded in
    Canada without employment. The respondents argued that although the article
    mentioned Simao, it did not directly accuse her of anything more than having
    been Parks legal advisor.

[13]

The
    respondents denied malice and raised the defences of fair comment and qualified
    privilege. They also argued that the damages claimed were excessive.

[14]

The trial
    judge ruled that, as a matter of law, the words of the article were capable of
    bearing the defamatory meaning alleged by Simao. The trial judge charged the
    jury with deciding whether reasonable men and women, reading each article as a
    whole, would understand the words to convey a meaning that discredits the
    plaintiff. Simao concedes that the trial judge properly charged the jury in
    this regard.

[15]

The trial
    judge gave the jury a succinct explanation of the parties positions on this
    issue.

[16]

Simaos position
    was summarized as follows:

The article left any reader with the impression that:

(a)   The
    plaintiff played an official role in inducing a group of vulnerable Koreans to
    leave their native Korea for the illusory promise of better employment
    opportunities in Canada;

(b)   The
    plaintiff allegedly represented all sides in the preparation and filing of all
    contracts between the Koreans and Highland; and

(c)   The
    plaintiff was responsible for preparing the forged employment records.

[17]

The respondents
    position was summarized in the following manner:

The defendants say it is not clear that the articles attacked
    the plaintiff. They say that the basic premise of the libel law is that the
    publication complained of must be of, and concerning, a plaintiff. They say
    that when a reader reads the publication one time, or at most two times, it
    might be very clear that it is the plaintiff who is being attacked. The
    defendants say that this is not so in these articles, and that there was no
    defamation.

[18]

The jury was
    asked to answer a series of questions. We do not have the verdict sheet given
    to the jury but the questions may be gleaned from the trial judges
    instructions:

1.   Are the
    articles complained of defamatory of the plaintiff?

2.   If yes,
    were the articles written and published by the defendant with malice?

3.   If there
    was no malice, is the defence of fair comment available to the defendant?

4.   If there
    was no malice, is the defence of qualified privilege available to the
    defendant?

5.   What amount
    of general damages, including loss of income if proven, should be awarded to
    the plaintiff?

6.   Should the
    plaintiff be awarded punitive and/or aggravated damages, and if so, in what
    amounts?

[19]

However,
    by agreement of the parties, the jury was instructed that if the answer to the
    first question was that the articles did not defame Simao, they should stop at
    that point without answering the remaining questions.

[20]

The jury
    found, in answer to the first question, that the articles complained of are not
    defamatory of the plaintiff. Following the instruction that had been given, the
    jury did not answer any of the remaining questions. The trial judge dismissed
    the action in accordance with the jurys verdict.

ISSUES

1.

Is the jurys
    verdict finding no defamation perverse?

2.

If the jurys
    verdict is perverse, what is the appropriate remedy?

ANALYSIS

1.  Is the jurys verdict finding no defamation
    perverse?

[21]

The
    standard of review for findings of fact made by a jury is well-established. In
Jones
    v. Niklaus
, 2008 ONCA 504, at para. 26, my colleague Armstrong J.A. stated:

Before addressing the above issues, it is necessary to consider
    the standard of review of findings of fact made by a jury. In
Deshane v.
    Deere & Co
.
(1993), 15
    O.R. (3d) 225

at 231 (C.A.), Lacourcière J.A.
    (dissenting on other grounds) said:

The principles governing appellate review of the verdict of
    a jury have been laid down by the Supreme Court of Canada in
McLean v.
    McCannell
,
[1937]
    S.C.R. 341

at p. 343,
[1937] 2
    D.L.R. 639
, so that the verdict of a jury will not be set aside as
    against the weight of evidence unless it is so plainly unreasonable and unjust
    as to satisfy the Court that no jury reviewing the evidence as a whole and
    acting judicially could have reached it. The principle has been re-affirmed in
Vancouver-Fraser Park District v. Olmstead
,
[1975] 2
    S.C.R. 831
at p. 839,
51 D.L.R.
    (3d) 416
, where de Grandpré J., delivering the judgment of the
    court, stated:

All of the relevant cases make it abundantly clear
    that jury verdicts must be treated with considerable respect and must be
    accorded great weight. This does not mean however that they should be regarded
    with awe.

It was in that case also that the court, at p. 836, rejected
    the suggestion that a verdict should be perverse, implying moral turpitude,
    before it could be set aside. Instead, the court adopted a test that examines
    whether the evidence so preponderates against the verdict as to show that it
    was unreasonable and unjust. There is a further principle enunciated by Laskin
    C.J.C. delivering the majority judgment in
Cameron v. Excelsior Life
    Insurance Co.
,
[1981] 1 S.C.R. 138
at p. 142,
119 D.L.R. (3d) 257
, and it is that
    jurys findings are entitled to rational appreciation and to be regarded in as
    favourable a light as the evidence supporting it.

See also Barker (
c.o.b. Mike Barber Auto Sales) v. Zurich
    Insurance Co.

(2001),
    140 O.A.C. 358
(C.A.) at para. 26; and
Plester v. Wawanesa

Mutual
    Insurance Co.

(2006),
    269 D.L.R. (4th) 624
(Ont. C.A.), leave to appeal to S.C.C. refused,
[2006]
    S.C.C.A. No. 315
.

[22]

The
    reluctance to interfere with jury verdicts is especially pronounced in
    defamation actions, particularly on the question of whether or not the words
    complained of bear defamatory meaning: see Raymond E. Brown,
Brown On
    Defamation
, 2d. ed., looseleaf (Toronto: Carswell, 2010), at para. 24.2,
    quoting Scrutton L.J. in
Broome v. Agar
(1928), 138 L.T. 698 (C.A.),
    at p. 700: Libel or no libel is peculiarly a question for the jury; only in
    the most extreme cases should the judge allow his view to override that of the
    constitutional tribunal. See also
Wills v. Carman
(1889), 17 O.R. 223
    (C.A.), at p. 225: It is for the jury to say whether alleged defamatory matter
    published is a libel or not, and the widest latitude is given to them in
    dealing with it.

[23]

In my
    view, Simao has failed to surmount this high hurdle.

[24]

There can
    be little doubt that the main target of the article and the man portrayed as
    being the culprit was Park. Simao is mentioned four times in the article.

[25]

First, the
    article states that a truck driver filed a complaint to the Canadian Society of
    Immigration Consultants about Mr. Park and his legal representative, Yolanda
    Simao. In my view, it was open to the jury to conclude that the ordinary
    reader would not attribute Parks moral culpability in the scheme to Simao
    simply because she was his legal representative. Simao concedes that the
    statement that a complaint has been filed is not defamatory.

[26]

Second,
    the article states that it was Simao who signed the various contracts to
    obtain the required immigration status. Third, the article purports to quote a Highland
    representative (apparently Bill Kalbhenn, though he is not named in the
    article) stating that he told the truck drivers through Simao that he would
    hire them once they were qualified. Fourth, a quotation attributed to Park
    states that [t]he contracts were made by Simao on behalf of the [trucking]
    company and the applicants.

[27]

At the end
    of the day the real question is whether the only reading of the article open to
    the jury is one that accuses Simao of fraud or forgery. Such a reading was
    certainly possible: the article states that she made and signed the
    contracts and that the representative of the trucking company denied signing
    the contracts and claimed that his signature must have been faked.

[28]

However, in
    my view it was open to the jury to conclude that the ordinary reader would not
    read the article in that way. The general thrust of the article is that Park took
    advantage of vulnerable truck drivers and that the trucking company failed to
    live up to its legal obligations. In this context, the jury was entitled to
    find that the ordinary reader would read the claim of faked signatures as no
    more than the trucking companys hollow excuse for reneging on its legal obligations.
    It was open to the jury to conclude that an ordinary reader would interpret the
    words of the article as meaning that there were no faked or forged signatures,
    but rather unscrupulous businessmen trying to evade their legal responsibilities
    at the expense of vulnerable immigrants.

[29]

A lawyer,
    trained to read documents with forensic precision, might well read the article
    differently. But that is not the test. The question for the jury was to
    determine whether
reasonable men and women of ordinary understanding

    not lawyers  reading the article articles as a whole, would take the words to
    convey a meaning that discredits the plaintiff.

[30]

The trial
    judge left the issue of defamatory meaning squarely with the jury. His
    instruction fairly explained the parties positions. The respondents put before
    the jury a possible interpretation of the article that did not defame Simao.
    Her claim was forcefully advanced before the jury but, in the end, the jury
    simply did not accept that ordinary people would understand the article to
    discredit her.

[31]

In
    accordance with the established jurisprudence to which I have referred, it is
    my view that on this record, this court must respect and uphold the jurys
    finding.

2.       If the jurys verdict is perverse, what is the
    appropriate remedy?

[32]

As I would
    not interfere with the jurys verdict, it is unnecessary for me to consider the
    remedy to which the appellant would be entitled.

[33]

I would
    observe, however, that it is difficult to imagine how we could give the
    appellant the primary remedy she seeks, namely judgment on her claim. In this
    regard, it is regrettable that the jury was instructed that it was not
    necessary to answer the remaining questions. As a result, we do not have the
    jurys complete assessment of the case. We do know, however, that the jury had
    the advantage of hearing and assessing both Simao and Jeong in the witness
    stand. The jury plainly was unimpressed by the merit of Simaos claim. Simao
    was not the target of the article upon which she sued yet she advanced a very
    large damage claim. The jury saw the evidence in support of the most tangible
    element of that claim  loss of income  crumble.

[34]

On this
    record, the best the appellant could hope for would be a new trial, and, as I
    would not interfere with the jurys answer to the first question, that remedy
    is precluded.

DISPOSITION

[35]

For these
    reasons I would dismiss the appeal with costs to the respondents fixed in the
    agreed amount of $7,600 inclusive of disbursements and HST.

Robert J. Sharpe J.A.

I agree R.P. Armstrong
    J.A.

I agree David Watt
    J.A.

Released: March 21, 2012


