Rubin v. Ross et al., (2013) 409 Sask.R. 202 (CA)

• Judge: Klebuc, C.J.S., Lane and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 14, 2012
• Jurisdiction: Saskatchewan
• Citations: (2013), 409 Sask.R. 202 (CA);2013 SKCA 21

Rubin v. Ross (2013), 409 Sask.R. 202 (CA);

    568 W.A.C. 202

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. MR.017

Dr. Stan Rubin (appellant) v. Glenn Ross, Sam Nowaselski, and Canadian Union of Public Employees, Local 1975 (respondents)

(CACV1973; 2013 SKCA 21)

Indexed As: Rubin v. Ross et al.

Saskatchewan Court of Appeal

Klebuc, C.J.S., Lane and Jackson, JJ.A.

March 1, 2013.

Summary:

The plaintiff was the former Director of the Veterinary Teaching Hospital at the Western College of Veterinary Medicine, University of Saskatchewan. Bowman, a member of the Canadian Union of Public Employees (the Union) and an employee of the Hospital, filed a Grievance Report alleging harassment at her workplace. The Grievance Report accused the plaintiff of having "not only refused to prevent the harassment", but of being "an active part of the harassment himself." Union representatives prepared a "Notice Re: Harassment Grievance", which referred to and attached the Grievance Report. The President of the Union (Ross) placed the combined document on eight public bulletin boards at the Hospital. The Union's senior grievance officer (Nowaselski) wrote an article for the CUPE 1975 Mini Bulletin. The Mini Bulletin, which reproduced the Grievance Report and the Notice Re: Harassment Grievance, was mailed to the Union's 1400 members and published on the Union's website. The plaintiff sued the Union, Ross and Nowaselski for defamation.

The Saskatchewan Court of Queen's Bench, in a decision reported at 358 Sask.R. 183, held that the plaintiff proved that he was defamed. While the court held that the defendants could not rely on the defence of absolute privilege, it found that they could rely on the defence of qualified privilege. The court made a provisional order for damages, stating that it would have awarded general damages of $25,000. Due to the "mixed results in [the] litigation," the court declined to order costs to either party. The plaintiff appealed. The defendants cross-appealed the costs award.

The Saskatchewan Court of Appeal allowed the plaintiff's appeal, holding that the trial judge erred in finding that the defamatory statements were protected by qualified privilege. The court fixed general damages at $100,000. Since the appeal was allowed, the cross-appeal from the costs award was dismissed. However, given that the defendants were clearly correct with respect to the issue raised in the cross-appeal, it was dismissed without costs.

Damage Awards - Topic 632

Torts - Injury to the person - Libel and slander - The plaintiff was the former Director of the Veterinary Teaching Hospital at the Western College of Veterinary Medicine, University of Saskatchewan - Bowman, a member of the Canadian Union of Public Employees (the Union) and an employee of the Hospital, filed a Grievance Report alleging harassment at her workplace - The Grievance Report accused the plaintiff of having "not only refused to prevent the harassment", but of being "an active part of the harassment himself" - Union representatives prepared a "Notice Re: Harassment Grievance", which referred to and attached the Grievance Report - The President of the Union (Ross) placed the combined document on eight public bulletin boards at the Hospital - The Union's senior grievance officer (Nowaselski) wrote an article for the CUPE 1975 Mini Bulletin - The Mini Bulletin, which reproduced the Grievance Report and the Notice Re: Harassment Grievance, was mailed to the Union's 1400 members and published on the Union's website - The plaintiff sued the Union, Ross and Nowaselski for defamation - The Saskatchewan Court of Appeal held that the plaintiff was defamed and the defendants could not rely on the defences of absolute or qualified privilege - The court held that the trial judge's provisional award of $25,000 general damages was "simply too little to pay for actions that caused a highly respected individual, occupying a significant position, to leave that position and then to subsequently leave his country for a job of less stature" - The court fixed general damages at $100,000 - The court held that there should be no award of aggravated or punitive damages - See paragraphs 64 to 90.

Damages - Topic 907

Aggravation - General - Aggravated damages - Libel and slander - [See Damage Awards - Topic 632 ].

Damages - Topic 1308

Exemplary or punitive damages - Libel and slander - [See Damage Awards - Topic 632 ].

Libel and Slander - Topic 644

The statement - What constitutes defamatory statements - General principles - Disparagement of reputation - [See Libel and Slander - Topic 684 ].

Libel and Slander - Topic 684

The statement - What constitutes defamatory statements - Libel - What constitutes a defamatory statement - The plaintiff was the former Director of the Veterinary Teaching Hospital at the Western College of Veterinary Medicine, University of Saskatchewan - Bowman, a member of the Canadian Union of Public Employees (the Union) and an employee of the Hospital, filed a Grievance Report alleging harassment at her workplace - The Grievance Report accused the plaintiff of having "not only refused to prevent the harassment", but of being "an active part of the harassment himself" - Union representatives prepared a "Notice Re: Harassment Grievance", which referred to and attached the Grievance Report - The President of the Union (Ross) placed the combined document on eight public bulletin boards at the Hospital - The Union's senior grievance officer (Nowaselski) wrote an article for the CUPE 1975 Mini Bulletin - The Mini Bulletin, which reproduced the Grievance Report and the Notice Re: Harassment Grievance, was mailed to the Union's 1400 members and published on the Union's website - The plaintiff sued the Union, Ross and Nowaselski for defamation - The Saskatchewan Court of Appeal held that the trial judge made no error in law when he concluded that the words were capable of bearing a defamatory meaning notwithstanding the overarching labour relations context - The labour relations context and the purposes for which the communications were posted were more appropriately considered with respect to the defences to the tort of defamation - The trial judge made no palpable and overriding error by finding the plaintiff had been defamed by the publication of the allegations against him - See paragraphs 32 to 37.

Libel and Slander - Topic 2928

Defences - Absolute privilege - Judicial, quasi-judicial or legal proceedings (incl. statements, pleadings, etc.) - The plaintiff was the former Director of the Veterinary Teaching Hospital at the Western College of Veterinary Medicine, University of Saskatchewan - Bowman, a member of the Canadian Union of Public Employees (the Union) and an employee of the Hospital, filed a Grievance Report alleging harassment at her workplace - The Grievance Report accused the plaintiff of having "not only refused to prevent the harassment", but of being "an active part of the harassment himself" - Union representatives prepared a "Notice Re: Harassment Grievance", which referred to and attached the Grievance Report - The President of the Union (Ross) placed the combined document on eight public bulletin boards at the Hospital - The Union's senior grievance officer (Nowaselski) wrote an article for the CUPE 1975 Mini Bulletin - The Mini Bulletin, which reproduced the Grievance Report and the Notice Re: Harassment Grievance, was mailed to the Union's 1400 members and published on the Union's website - The plaintiff sued the Union, Ross and Nowaselski for defamation - The Saskatchewan Court of Appeal held that the trial judge did not err by finding that the defence of absolute privilege did not apply - The court stated that "the law may be tending to extend the cloak of absolute privilege to what has been described as 'steps preparatory to judicial proceedings' but the purpose in this case was an attempt to find corroborating witnesses. This purpose is not so intimately connected with the process as to justify the extension of the defence of absolute privilege. Moreover, the extensive publication that took place destroys any possible claim that the Union might have to absolute privilege" - See paragraphs 38 to 42.

Libel and Slander - Topic 2983

Defences - Qualified privilege - When available - The plaintiff was the former Director of the Veterinary Teaching Hospital at the Western College of Veterinary Medicine, University of Saskatchewan - Bowman, a member of the Canadian Union of Public Employees (the Union) and an employee of the Hospital, filed a Grievance Report alleging harassment at her workplace - The Grievance Report accused the plaintiff of having "not only refused to prevent the harassment", but of being "an active part of the harassment himself" - Union representatives prepared a "Notice Re: Harassment Grievance", which referred to and attached the Grievance Report - The President of the Union (Ross) placed the combined document on eight public bulletin boards at the Hospital - The Union's senior grievance officer (Nowaselski) wrote an article for the CUPE 1975 Mini Bulletin - The Mini Bulletin, which reproduced the Grievance Report and the Notice Re: Harassment Grievance, was mailed to the Union's 1400 members and published on the Union's website - The plaintiff sued the Union, Ross and Nowaselski for defamation - The Saskatchewan Court of Appeal held that the trial judge erred by finding that the defence of qualified privilege applied - The trial judge did not give sufficient effect to: (i) the wording of the defamatory expressions; (ii) the circumstances under which they were published and, in particular, the chronology of events and the separate instances of publication; (iii) the persons to whom the words were published; and (iv) whether what was published on each occasion was germane and reasonably appropriate to that specific occasion - See paragraphs 43 to 63.

Libel and Slander - Topic 2983

Defences - Qualified privilege - When available - The plaintiff was the former Director of the Veterinary Teaching Hospital at the Western College of Veterinary Medicine, University of Saskatchewan - Bowman, a member of the Canadian Union of Public Employees (the Union) and an employee of the Hospital, filed a Grievance Report alleging harassment at her workplace - The Grievance Report accused the plaintiff of having "not only refused to prevent the harassment", but of being "an active part of the harassment himself" - Union representatives prepared a "Notice Re: Harassment Grievance", which referred to and attached the Grievance Report - The President of the Union (Ross) placed the combined document on eight public bulletin boards at the Hospital - The Union's senior grievance officer (Nowaselski) wrote an article for the CUPE 1975 Mini Bulletin - The Mini Bulletin, which reproduced the Grievance Report and the Notice Re: Harassment Grievance, was mailed to the Union's 1400 members and published on the Union's website - The plaintiff sued the Union, Ross and Nowaselski for defamation - The Saskatchewan Court of Appeal held that the trial judge erred by finding that the defence of qualified privilege applied - The trial judge did not give sufficient effect to, inter alia, the persons to whom the words were published - The Union published these two documents in three places - The possible audience included: (i) non-Unionized staff at the Hospital and members of the public who had free access to it; and (ii) members of the public who searched the internet and came upon the Union's website, to which access was not restricted - As such, the defendants were unable to satisfy the reciprocity of interests aspect of the defence of qualified privilege (i.e., that the person publishing the information had an interest/duty to do so, and that the person receiving the information had sufficient interest in receiving it) - See paragraphs 56 to 59.

Libel and Slander - Topic 2988.1

Defences - Qualified privilege - Loss of - Where limits of privilege exceeded - The plaintiff was the former Director of the Veterinary Teaching Hospital at the Western College of Veterinary Medicine, University of Saskatchewan - Bowman, a member of the Canadian Union of Public Employees (the Union) and an employee of the Hospital, filed a Grievance Report alleging harassment at her workplace - The Grievance Report accused the plaintiff of having "not only refused to prevent the harassment", but of being "an active part of the harassment himself" - Union representatives prepared a "Notice Re: Harassment Grievance", which referred to and attached the Grievance Report - The President of the Union (Ross) placed the combined document on eight public bulletin boards at the Hospital - The Union's senior grievance officer (Nowaselski) wrote an article for the CUPE 1975 Mini Bulletin - The Mini Bulletin, which reproduced the Grievance Report and the Notice Re: Harassment Grievance, was mailed to the Union's 1400 members and published on the Union's website - The plaintiff sued the Union, Ross and Nowaselski for defamation - The Saskatchewan Court of Appeal held that the trial judge erred by finding that the defence of qualified privilege applied - The trial judge did not give sufficient effect to, inter alia, whether what was published on each occasion was germane and reasonably appropriate to that specific occasion - To inform its membership and to find witnesses to support its grievance, the Union could have sent out a general notice - The Union did not need to name the plaintiff and make the allegations it did to achieve its goal - The Union overreached, thereby placing the statement outside the ambit of the defence of qualified privilege - See paragraphs 60 to 63.

Libel and Slander - Topic 4421

Damages - General damages (incl. measure of) - General principles - [See Damage Awards - Topic 632 ].

Libel and Slander - Topic 4428

Damages - General damages (incl. measure of) - Aggravated damages - [See Damage Awards - Topic 632 ].

Libel and Slander - Topic 4429

Damages - General damages (incl. measure of) - Exemplary or punitive damages - When available - [See Damage Awards - Topic 632 ].

Practice - Topic 7030

Costs - Party and party costs - Entitlement to party and party costs - Where success or fault divided - [See Practice - Topic 8296 ].

Practice - Topic 8296

Costs - Appeals - Appeals from order granting or denying costs - General - The trial judge held that the plaintiff proved that he was defamed, but the defendants could rely on the defence of qualified privilege - Due to the "mixed results in [the] litigation," the trial judge declined to order costs to either party - The plaintiff appealed - The defendants cross-appealed the costs award - The Saskatchewan Court of Appeal stated that "Finding for a party on some issues, which do not affect any aspect of the remedy, does not make the results mixed. Thus, I agree with counsel for the Respondents that costs would normally be awarded to the defendant who has succeeded in proving that the defamatory publication was privileged, subject to the proper exercise of the trial judge's discretion to withhold costs in an appropriate case" - Since the court allowed the plaintiff's appeal and found that the defendants could not rely on the defence of qualified privilege, the defendants' cross-appeal from the costs award was dismissed - However, given that the defendants were clearly correct with respect to the issue raised in the cross-appeal, it was dismissed without costs - See paragraphs 91 to 93.

Cases Noticed:

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 32].

Netupsky v. Craig, [1973] S.C.R. 55, refd to. [para. 34].

Hamalengwa v. Duncan (2005), 202 O.A.C. 233; 135 C.R.R.(2d) 251 (C.A.), leave to appeal refused, [2006] S.C.R. ix; 352 N.R. 196; 221 O.A.C. 399, refd to. [para. 40].

Douglas v. Tucker, [1952] 1 S.C.R. 275, refd to. [para. 47].

Halls v. Mitchell, [1928] S.C.R. 125, refd to. [para. 47].

Sapiro v. Leader Publishing Co., [1926] 3 D.L.R. 68 (Sask. C.A.), refd to. [para. 47].

Stuart v. Bell, [1891] 2 Q.B. 341, refd to. [para. 47].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 56].

Adam v. Ward, [1917] A.C. 309 (H.L.), refd to. [para. 56].

Jones v. Bennett, [1969] S.C.R. 277, refd to. [para. 56].

Teamsters, Local 987 v. U.F.C.W., Local 401 - see Pope et al. v. O'Halloran et al.

Pope et al. v. O'Halloran et al., [2006] 4 W.W.R. 16; 371 A.R. 137; 354 W.A.C. 137; 2005 ABCA 263, refd to. [para. 60].

Angle et al. v. LaPierre et al., [2008] 7 W.W.R. 600; 425 A.R. 378; 418 W.A.C. 378; 2008 ABCA 120, refd to. [para. 67].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620, refd to. [para. 68].

McElroy v. Cowper-Smith, [1967] S.C.R. 425, refd to. [para. 70].

Duke et al. v. Puts (2001), 204 Sask.R. 130; 2001 SKQB 130, affd. (2004), 241 Sask.R. 187; 313 W.A.C. 187; 2004 SKCA 12, refd to. [para. 83].

Rogacki v. Belz et al. (2004), 190 O.A.C. 94; 243 D.L.R.(4th) 585 (C.A.), leave to appeal dismissed, [2005] 1 S.C.R. vi; 339 N.R. 197; 206 O.A.C. 398, refd to. [para. 88].

Authors and Works Noticed:

Brown, Raymond E., Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (2nd Ed. 1999 Looseleaf), vol. 3, generally [para. 42], vol. 4, paras. 13.1 [para. 45]; 13.6(3)(d)(ii)(A), 13.6(3)(d)(ii)(B) [paras. 46, 60]; 13.6(3)(d)(ii)(C) [paras. 46, 58].

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed. 1994) (1999 Looseleaf Supp.) 2009 Update, Release 3, generally [para. 43].

Fleming, John G., The Law of Torts (9th Ed. 1998), p. 615 [para. 38].

Gatley on Libel and Slander (8th Ed. 1981), pp. 592, 593 [para. 70].

Klar, Lewis N., Tort Law (5th Ed. 2012), pp. 816 [para. 47]; 833 [para. 83]; 834 [para. 69].

Klar, Lewis N., Remedies in Tort Law (Looseleaf), vol. 1, p. 6-73 [para. 70].

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (9th Ed. 2011), p. 784 [para. 38].

McConchie, Roger D., and Potts, David A., Canadian Libel and Slander Actions (2004), pp. 295, 296 [para. 33]; 298 [para. 34]; 368 [para. 47]; 865 [para. 69].

Counsel:

Catherine Sloan and Paul Clemens, for the appellant;

Andrew Mason, for Glenn Ross, Sam Nowaselski and Canadian Union of Public Employees, Local 1975.

This appeal and cross-appeal were heard on September 14, 2012, before Klebuc, C.J.S., Lane and Jackson, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Jackson, J.A., on March 1, 2013.