FACT PATTERN – Class #7 In-Class Exercise

[1] The Plaintiffs (individually referred to as “Jane” and “John”) are siblings who reside in

First Nation, Ontario. Jane was employed by the Defendant First Nation (the “FN”) in the capacity

of community communications officer between January 2015 and June 2016. On or about June 21,

2016, the Defendant terminated Jane’s employment. John composed a handwritten letter addressed

“to whom it may concern,” dated June 26, 2016, and delivered it to the FN (the “John Letter”).

The letter was written in response to the Defendant terminating Jane’s employment.

[2] The John letter contained language that would concern an objective reader and included

threatening language.

[3] On June 28, 2016, Mark Morris, the FN’s manager of administration, emailed Jane. The

FN’s position was that the John letter was threatening and would lead to the FN prohibiting him

from entering onto its territory.

[4] On July 24, 2016, a quorum of the FN’s council passed a Band Council Resolution (the

“BCR”) that read as follows:

WHEREAS: The First Nations Council has deemed Jane and John to be undesirables
due to their behaviour towards Mark Morris;

WHEREAS: The First Nations Council has declared Jane and John to be trespassers
on First Nations territory;

THEREFORE BE IT RESOLVED THAT: Jane and John be removed as trespassers

should either enter First Nations territory and that appropriate charges be laid.

[5] Jane received the BCR on September 18, 2016 by mail. Around the same time, John

received an envelope from the FN by mail. John did not open the envelope. He returned it to the
FN without discovering what was inside. John came to know of the BCR because Jane showed

him the copy that she received.

[6] The BCR is kept in a resolutions book that is available to members of the FN who care to

attend at the band office and review the book. The BCR has no expiration date.

[7] Jane and John have not entered onto the FN lands since the date they received the BCR.

[8] Jane commenced a Small Claims Court action against the Defendant. The trial was heard

on September 25, October 9 and October 18, 2017. In reasons for judgment dated October 24,

2017, a deputy judge found that Jane had been wrongfully dismissed from her employment by the

Defendant and awarded Jane damages in the amount of $15, 924.63, plus costs of $780.00.

[9] The deputy judge found that the BCR was an “aggravating factor” and the issuing of it was

“unreasonable” and caused “upset and stress” to Jane and “affect[ed] her reputation in the

community where she lives and works.”

[10] The deputy judge awarded Jane “additional damages as the Defendant has acted in bad

faith.” Among the enumerated grounds for the finding of “bad faith” and award of “additional

damages,” the deputy judge also found that the BCR was not reasonably issued.

[11] Jane and John have now brought an action in defamation against the Defendant FN. They

claim $1,000,000.00 as damages for defamation, plus $200,000.00 each as punitive damages, plus

interest and costs. The Plaintiffs claim to have been defamed by the BCR, which described them

as “undesirable” and prohibited them from entering on the Defendant’s territory under penalty of

prosecution for trespass.

[12] The defendant FN brings a motion for summary judgment seeking to dismiss the Plaintiffs’

claim.

The Law

Summary Judgment

[13] In C.B.C. v. iSport Media and Management Ltd., 2014 ONSC 1905, Chiappetta J. stated at

para. 21:

A judge hearing a summary judgment motion must now first determine whether
there is a genuine issue requiring trial based only on the evidence before her without
using the fact-finding powers in rule 20.04(2.1) and (2.2). There will be no genuine
issue requiring a trial if evidence permits the motions judge to make a fair and just
determination on the merits. This will be the case when the process (1) allows the
judge to make the necessary findings of fact, (2) allows the judge to apply the law to
the facts, and (3) is a proportionate, less expensive, and a more timely means to
achieve a just result.

Defamation

[14] Recently in Enverga v. Balita Newspaper, [2016] O.J. No. 3995, Lederman J. succinctly

set out the well-settled law regarding defamation at para. 14:

In order to succeed on a claim for defamation, a plaintiff must establish the

following:

(a) That the impugned words are defamatory, in the sense that they would tend to
lower the plaintiff's reputation in the eyes of a reasonable person;

(b) That the words in fact refer to the plaintiff;

(c) That the words were published, i.e. that they were communicated to at least one
person other than the plaintiff.

[15] Published words are defamatory if they have a tendency to lower the plaintiff in the

estimation of right-thinking members of society generally and, in particular, to cause him to be

regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. If these elements

are established on the balance of probabilities, falsity and damage are presumed and the onus shifts

to the defendant to escape liability.

[16] Defamation is the intentional publication of an injurious false statement. While it is true

that an actual intention to defame is not necessary to impose liability on a defendant, the intention

to do so is nevertheless inferred from the publication of the defamatory statement. This gives rise

to the presumption of malice which may be displaced by the existence of a qualified privilege (Hill

v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 S.C.C. at para. 170).

Qualified Privilege

[17] A defence of qualified privilege is available if the publisher has an interest or duty, legal,

social, moral or personal, to publish the information in issue to the person to whom it is published,

and the person to whom it is published has a corresponding interest or duty to receive it.