Gallant v West,

Date11 March 1955
CourtSupreme Court of Newfoundland and Labrador (Canada)
Canada, Supreme Court of Newfoundland.

(Walsh C.J. and Winter J.)

Gallant
and
West.

Jurisdiction — Exemptions from — Foreign Armed Forces — Position of — Privileges of — United States Armed Forces in Newfoundland.

The Facts.—Under the terms of a Treaty an Air Base in Newfoundland was leased to the United States Government. Employed on the Base were large numbers of service men and civilians. The United States Military Authorities had exclusive possession and control within the Base, and had complete control over the comings and goings of their personnel whether within or without the Base. The Commandant of the Base issued a pamphlet which on p. 5 stated, inter alia, that the bedroom part of Gallant's Hotel was declared to be “off limits” to men on the Base. Gallant, the proprietor of the hotel, brought an action against the Commandant of the Base, alleging that the pamphlet contained a libel upon him because, he maintained, the offending passage in the pamphlet meant that the rooms of his hotel were not a proper place to which Air Force personnel or civilian employees should resort and that he, the plaintiff, was conducting an establishment of a disreputable nature. On November 2, 1954, Dunfield J. dismissed the plaintiff's claim, since the occasion of the issue of the pamphlet was privileged.1 The plaintiff appealed.

Held: that the appeal must be dismissed. Where there passed between a commanding officer and personnel under his command a communication in which they had a common interest, the communication was privileged.

Walsh C.J. reviewed the facts, and continued: “One of the grounds of the defendant's application was that the words were not defamatory of the plaintiff. Respecting this the trial Judge said: ‘In the present situation I think I should have to leave it to the jury, as I should not be able to say that the words were not capable of being understood in a libellous sense.’ This question was discussed, but was not pressed on behalf of the defendant, at the hearing of the appeal. The defendant has not admitted that the words are reasonably capable of a defamatory meaning in their natural and ordinary sense or in the sense alleged in the statement of claim by way of innuendo. I, therefore, consider that the question is before this Court.

“There is evidence, including the evidence of a civilian, other than the plaintiff, who saw a copy of the booklet on the Base, that there are persons of ill-repute amongst those whose names appear on page 5. This evidence establishes special facts or circumstances which would lead reasonable persons to infer that the words meant that the plaintiff was conducting a disreputable establishment, particularly when the words include a recommendation to become familiar with the off-limits areas to prevent embarrassing entanglements. Indeed, in the natural and ordinary meaning of the words used in association with the names of a number of women, I consider that they have a libellous tendency and that any person to whom they are published, even without knowledge of the special facts or circumstances, may reasonably infer that there is an imputation discreditable to the plaintiff in the operation of his hotel.

“Off-limits sanctions are imposed in the case of establishments patronized by service personnel, when these establishments are conducted in a manner adversely affecting the health, morals or welfare of such personnel. Establishments may be placed off-limits for many reasons, some of which, as is the case in respect of Gallant's Hotel, may not carry any imputation whatever against the operators. In law, however, a statement, alleged to be defamatory, means what it naturally and reasonably means for those to whom it is published. [Walsh C.J. then referred to Morris v. Sandess Universal ProductsUNK,2 and continued:] The general public know that the power to declare establishments off-limits is frequently

exercised to keep servicemen from places where immorality is permitted. It would surely not be unreasonable for a jury to reach the conclusion that the words conveyed that meaning in this case and I consider that the trial Judge was right in saying that, on this point, he should have to leave the case to the jury

“The trial Judge, however, withdrew the case from the jury on the ground that the occasion was privileged, that there was no excess of privilege and that malice had not been established. The precise ground of the decision is not clear, and it becomes necessary, in view of the arguments addressed to the Court on appeal, to review the facts and to apply to them the law in relation to privilege, malice and unnecessarily wide publication. [After reviewing the procedure whereby certain places were declared to be ‘off-limits’, Walsh C.J. continued:] By s. 4 of the American Bases Act, 1941 (No. 12 of the 1941 Acts of the...

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