



COURT OF APPEAL FOR ONTARIO

CITATION: Warman v. Fournier, 2015 ONCA 873

DATE: 20151211

DOCKET: C58503

Sharpe, Cronk and Miller JJ.A.

BETWEEN

Richard Warman

Plaintiff (Respondent)

and

Constance Fournier, Mark Fournier
,
Andrew Spencer
    (a.k.a. Droid 1963)
,

Roger
    Smith (a.k.a. Peter ODonnell), Jason Bertucci (a.k.a. Faramir),

Dan Lepage
    (a.k.a. SaskBigPicture),
Daniel Martin (a.k.a. Padraigh)
,

Jon F.
    Klaus (a.k.a. Klinkxx) and

John Does
    1  2 (a.k.a. conscience and HR-101)

Defendants (Appellants)

Barbara Kulaszka, for the appellants

James Katz, for the respondent

Heard: December 2, 2015

On appeal from the judgment of Justice Robert J. Smith of
    the Superior Court of Justice, dated February 27, 2014, sitting with a jury.

By the Court:

A.      Introduction

[1]

Following a civil libel trial by a judge and jury, the appellants were
    found liable to the respondent for defamation of character.  The jury awarded
    the respondent general, aggravated and punitive damages of $42,000.  At the
    conclusion of trial, the trial judge granted a permanent injunction against the
    appellants, enjoining them from publishing in any manner any statements found
    by the jury to be defamatory of the respondent.  He also awarded costs against
    the appellants, on a substantial indemnity scale, of $62,900.

[2]

The appellants appeal from the jurys liability and damages findings, and
    from the injunctive relief and costs award granted by the trial judge.

[3]

During oral argument, the appellants focused their submissions on five issues. 
    They contend that:

i)

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

ii)

the jurys aggravated and punitive damages awards are unreasonable and
    irrational.

[4]

For the reasons that follow, we conclude that all the appellants
    grounds of appeal must be rejected.

B.      Trial Judges Alleged
    Errors

(1)

Defamatory Meanings of Alleged Statements and Innuendos

[5]

The appellants argue 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.

[6]

We disagree, for two reasons.

[7]

First, at trial, the appellants counsel explicitly told the trial judge
    that her clients asked that all the alleged defamatory statements be put to the
    jury.  She made no request of the trial judge for the ruling that the
    appellants now say was necessary.  After taking this position, she neither
    objected to the form of the statements submitted to the jury nor to the trial
    judges instructions on the statements and innuendo.

[8]

Given this position and counsels failure to object to the form of the
    questions submitted to the jury, it necessarily followed that the appellants
    were content that the alleged innuendos arising from the statements were a
    matter for the jury.

[9]

Second, and importantly, it is clear from his instructions to the jury
    that the trial judge did decide that the statements at issue, together with the
    innuendos alleged, were capable in law of bearing the defamatory meanings
    alleged and he instructed the jury accordingly.  We have reviewed the
    statements and alleged innuendos and it is difficult to see how he could
    possibly have come to any other conclusion.

[10]

The
    appellants must bear the consequences of their tactical decisions at trial.  No
    error in the trial judges instructions on this issue having been demonstrated,
    this ground of appeal fails.

(2)

Malice

[11]

The
    appellants submit that the trial judge further erred by failing to consider
    whether the evidence adduced at trial was sufficient to support a potential
    finding of malice.  They maintain that the question of alleged malice should
    not have been left with the jury because there was no adequate evidentiary
    foundation for a finding of malice.  They also argue that the trial judge
    misdirected the jury on malice by failing to tell the jury that the defence of
    fair comment in a libel action can be defeated only on proof that malice was
    the dominant motive for publishing the statements at issue.

[12]

Again,
    we disagree.

[13]

At
    trial, the appellants relied mainly on the defence of fair comment and, in
    respect of some of the statements in question, on the defence of
    justification.  In the context of these defences, there was evidence at trial
    of the appellants conduct that, if accepted by the jury, could ground a
    finding of malice.  The appellants did not ask the trial judge to rule that
    there was no evidence capable of supporting a finding of malice.  A review of
    the record indicates that there was evidence capable of supporting a finding of
    malice and had the appellants asked for such a ruling, the trial judge would
    have had no choice but to put malice to the jury.

[14]

We
    are also not persuaded that the jury was misdirected on the legal requirements
    for a finding of actual malice.  The trial judges initial instructions did not
    indicate that malice must be the dominant motive for publishing the impugned
    statements in order to anchor a finding of actual malice.  However, the trial
    judges recharge to the jury emphasized that actual malice includes the making
    of a statement for the dominant purpose of harming someone out of personal
    spite or ill-will.  He told the jury, among other things: Actual malice
    includes every unjustifiable dominant intent to inflict injury on the person
    defamed.  In our view, as a result of the recharge, the jury could not have
    been under any misapprehension as to the controlling principles on the issue of
    malice.

[15]

In
    these circumstances, where the question of malice is properly pleaded,
    admissible evidence going to proof of malice is adduced, and a correct
    instruction on malice is provided by the trial judge to the jury, as in this
    case, the determination of malice is a question for the jury.  See for example,
Cherneskey v. Armadale Publishers Ltd.
, [1979] 1 S.C.R. 1067, at p.
    1090;
Davies & Davies Ltd. v. Kott
, [1979] 2 S.C.R. 686, at p.
    694.

[16]

This
    ground also fails.

(3)

Permanent Injunction

[17]

Nor
    are we persuaded that the trial judge erred, on the facts of this case, by
    granting permanent injunctive relief.

[18]

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.

[19]

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.

[20]

We
    disagree.  As counsel for the respondent argued, 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.

[21]

Based
    on the appellants conduct as established by the evidence at trial, the trial
    judge inferred that the appellants would continue to publish the same
    defamatory statements about the respondent on their website unless enjoined by
    permanent court order from doing so.  This inference was rationally supported
    by the record, including by the following:

·

the appellants had refused, despite request therefor, to remove
    the defamatory statements from their website until approximately nine months
    after being served with the respondents first notice of libel and seven months
    after the delivery of his statement of claim;

·

the appellants continued to post the respondents pleading and
    his second notice of libel on their website up to and after the commencement of
    trial;

·

even after the jury verdict, the appellants posted a link on
    their website to a copy of the respondents statement of claim; and

·

the jury found that the appellants acted with malice.  This
    finding supported the conclusion that similar malicious postings on the
    appellants website could continue in the future.

[22]

In
    these circumstances, we agree with the trial judges conclusion, at para. 34 of
    his reasons:

The continued publication of libellous material would cause
    irreparable harm to the [respondents] reputation, and [the] prohibited
    material has already been found to constitute libel.  I find that the balance
    of convenience favours the granting of an injunction because the terms of the
    proposed injunction would not prevent any of the defendants from engaging in
    political comment that was not defamatory, whereas the harm to [the
    respondents] reputation would be substantial.  Based on the fact that the jury
    found that the defendants made 41 statements which were defamatory of [the
    respondent], that they did so maliciously, and that they have refused to
    apologize or publish a retraction, I find that [the respondent] has met his
    onus of showing that an injunction should issue to prevent the defendants from
    publishing in any manner whatsoever any statements found to be defamatory of
    [the respondent] in this action.

[23]

In
    our opinion, for the reasons given by the trial judge, the injunction granted
    was both warranted and appropriate.

(4)

Costs Award

[24]

We
    also reject the appellants challenge to the trial judges award of costs on a
    substantial indemnity scale.

[25]

The
    trial judge based his award of substantial indemnity costs on his consideration
    of three factors: i) the respondent achieved a result at trial that exceeded
    his pre-trial offer to settle under r. 49 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194; ii) the jury found that the appellants acted with malice
    towards the respondent, and in a high-handed and egregious manner; and iii) the
    principles governing costs as detailed in r. 57.01(1) of the
Rules of
    Civil Procedure
.

[26]

These
    factors amply justified an award of costs on a substantial indemnity scale. 
    The trial judge made no error in principle in fashioning his costs award, nor
    is his award plainly wrong.  As a result, appellate interference with the award
    is precluded:
Hamilton v. Open Window Bakery Ltd.
, 2004 SCC 9, [2004]
    1 S.C.R. 303, at para. 27.

C.      The Jurys Aggravated
    and Punitive Damages Awards

[27]

A jurys award of damages, including aggravated or punitive damages,
    attracts considerable deference from a reviewing court.  This is especially so
    in defamation cases.  An appellate court is not entitled to substitute its own
    view on the proper amount of damages for the judgment of the jury unless the
    verdict is so exorbitant or so grossly out of proportion to the libel as to
    shock the courts conscience and sense of justice:
Walker v. CFTO Ltd.
(1987), 59 O.R. (2d) 104 (C.A.), [1987] O.J. No. 236, at p. 110.

[28]

The
    appellants point to no error in the trial judges instructions on the nature
    and purposes of aggravated and punitive damages or on the circumstances in
    which such awards are reasonable and rational.  The appellants make only bald
    assertions that their conduct was undeserving of an award of aggravated or
    punitive damages.  They have not identified any error in the trial judges
    instructions on these types of damages or any other basis for appellate
    intervention with the jurys damages awards.

[29]

The
    jury concluded that the appellants had acted maliciously in publishing the
    defamatory statements in question.  The jurys damages awards indicate,
    contrary to the appellants contention, that it concluded that the appellants
    had acted in an oppressive and high-handed manner.  We agree with the trial
    judges observation, at para. 4 of his costs reasons, that there was ample  evidence
    on which the jury could have reached the conclusions that it did.

[30]

We
    see no basis upon which to disturb the jurys awards of aggravated ($7,000) and
    punitive ($13,000) damages against the appellants.

D.      Disposition

[31]

For the reasons given, the appeal is dismissed.  Leave to appeal costs
    is granted and the costs appeal is also dismissed.  The respondent is entitled
    to his costs of the appeal, fixed in the amount of $23,000, inclusive of
    disbursements and all applicable taxes.

Released:

RJS                                       Robert J.
    Sharpe J.A.

DEC 11 2015                          E.A. Cronk J.A.

B.W.
    Miller J.A.


