The Ontario Court of Appeal has dismissed the appeal in Warman v. Fournier (2015 ONCA 873). The Court upheld the judgment of Justice Robert J. Smith and a jury in which the appellants were found liable in defamation for publication of 41 statements on two websites. The jury had awarded the respondent general, aggravated and punitive damages of CDN$42,000 and had granted a permanent injunction against them.
The appellants appealed from the jury’s liability and damages findings, and from the injunctive relief and costs award granted by the trial judge. They made submissions on five issues. They contended that:
- The trial judge should have determined, 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.
- The trial judge should not have left the question of malice to the jury and he, in any event, misdirected them on malice;
- The judge should not have granted a permanent injunction.
- The judge was wrong to award costs against the appellants on a substantial indemnity scale.
- The jury’s aggravated and punitive damages awards are unreasonable and irrational.
The Court of Appeal rejected all the appellants’ grounds of appeal This blog will focus on the grounds of appeal except the appeal of the costs order .
(1) Defamatory Meanings of Alleged Statements and Innuendos
The appellants argued 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 of Appeal disagreed. They pointed out that the point was not raised at the trial. Furthermore, it was clear from the Judges instructions to the jury that he 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. The Court reviewed the statements and alleged innuendos and it was difficult to see how he could possibly have come to any other conclusion.
The Court observed that the appellants had to bear the consequences of their tactical decisions at trial (). No error in the trial judge’s instructions on this issue having been demonstrated, this ground of appeal fails.
The second ground of appeal was that the trial judge erred by failing to consider whether the evidence adduced at trial was sufficient to support a potential finding of malice.
First the appellants argued 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. Second the appellants argued 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.
The Ontario Court of Appeal disagreed on both points and dismissed this ground of appeal.
The appellants did not ask the trial judge to rule that there was no evidence capable of supporting a finding of malice. Moreover a review of the record indicated 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. The Court also was not persuaded that the jury was misdirected on the legal requirements for a finding of actual malice.
The Court therefore found
“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.,  1 S.C.R. 1067, at p. 1090; Davies & Davies Ltd. v. Kott,  2 S.C.R. 686, at p. 694.”
(3) Permanent Injunction
The Court of Appeal disagreed with the appellants that the trial judge erred, on the facts of this case, by granting permanent injunctive relief and held
“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.” 
After reviewing the record the Court of Appeal agreed () with the trial judge’s conclusion at paragraph 34 of his reasons
“The continued publication of libellous material would cause irreparable harm to the [respondent’s] 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 respondent’s] 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….”
(4) The Jury’s Aggravated and Punitive Damages Awards
The appellants objection to the Jury’s award of Aggravated and punitive Damages award was briskly rejected by the Court as follows
“The appellants point to no error in the trial judge’s 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 judge’s instructions on these types of damages or any other basis for appellate intervention with the jury’s damages awards” 
This is the second appellate decision in Ontario from a jury decision about internet defamation – the first being St. Lewis v. Rancourt, 2015 ONCA 513.
The consequences of tactical decisions during the trial militated against a successful appeal for example the failure to object at the trial about defamatory meaning and the failure to argue at the trial that the there was no evidence of malice to put to the the jury
The liability of an internet discussion forum after notice was neatly stated by the Court of Appeal at para 19 and 20
“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.
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.”  to 
Notification is plainly of cardinal importance in many if not all determinations by the Courts of whether an intermediary is a publisher. The law is not settled or clear, but decisions from Canada, United Kingdom, and Australia, where the question was expressly or indirectly addressed suggested that if the publication is not removed after notice an intermediary is a publisher. Thus, in Weaver v. Corcoran, 2015 BCSC 165 the Judge held that the defendant news portal was a publishers after notice
“Until awareness occurs, whether by internal review or specific complaints that are brought to the attention of the National Post or its columnists, the National Post can be considered to be in a passive instrumental role in the dissemination of the reader postings. It has taken no deliberate action amounting to approval or adoption of the contents of the reader posts. Once the offensive comments were brought to the attention of the defendants, however, if immediate action is not taken to deal with these comments, the defendants would be considered publishers as at that date” .
The granting of the permanent injunction is common in Canadian cyberlibel cases (see most recently St. Lewis v. Rancourt, 2015 ONCA 513) Where the orders were too broad , Appellate courts have intervened. In Beidas v. Pichler (Legassé), 2008 CanLII 26255 the Ontario Divisional Court held that the order granted by the Motions Court judge was too broad to be sustained. This was because the orders unnecessarily impaired the freedom of speech and expression of the defendant (–) and injunctions could not be granted to restrict non-defamatory speech on the Internet. (–).
David Potts is a Canadian barrister specializing in defamation who has coauthored “Canadian Libel Practice” and “Canadian Libel and Slander Actions” and authored “Cyberlibel : Information Warfare in the 21st Century?” and a revised edition entitled “Potts on Cyberlibel “