[PDF] CANADIAN CASES ON THE LAW OF TORTS

View - Download CANADIAN CASES ON THE LAW OF TORTS

Previous PDF

Next PDF

CANADIAN CASES

ON THE LAW

OF TORTS

Third Series/Troisi`eme s´erie

Recueil de jurisprudence canadienne

en responsabilit´e civile

VOLUME 78

(Cited 78 C.C.L.T. (3d))

EDITOR-IN-CHIEF/R

´EDACTEUR EN CHEF

John Irvine

, M.A., B.C. L.

FACULTY OF LAW, UNIVERSITY OF MANITOBA

WINNIPEG, MANITOBA

ASSOCIATE EDITOR/R´EDACTEUR ADJOINT

Robert P. Kouri

, B.A., L.L.L., M.C.L., D.C.L.

FACULT´

E DE DROIT, UNIVERSIT´

EDE SHERBROOKE

SHERBROOKE, QUEB´

EC CARSWELL EDITORIAL STAFF/R´EDACTION DE CARSWELL

Jeffrey D. Mitchell, B.A., M.A.

Director, Editorial Production and Manufacturing

Susan Goodman, B.A., LL.B.

Product Development Manager

Sharon Yale, LL.B., M.A.Julia Fischer, B.A.(HON.), LL.B. Supervisor, Legal Writing Acting Supervisor, Legal Writing

Dionne Brown Chambers, B.A., LL.B.Jim Fitch

, B.A., LL.B.

Senior Legal Writer Senior Legal Writer

Peggy Gibbons, B.A.(HON.), LL.B.Natasha Major, B.A., LL .L.

Senior Legal Writer Senior Legal Writer

Anne Simpson, B.A., M.L.S., LL.B.Martin-Fran¸cois Parent, LL.B.,

Senior Legal Writer LL

.M., DEA (PARIS II)

Bilingual Legal Writer

Eden Nameri, B.A., LL.B.Annie Chan, B.A.

Legal Writer Content Editor

CANADIAN CASES ON THE LAW OF TORTS, a national series of anno-Recueil de jurisprudence canadienne en responsabilit´e civile, une s´erie

tated topical law reports, is published 12 times per year. Subscription rate nationale de recueils de jurisprudence sp´ecialis´ee et annot´ee, est publi´e 12

$350.00 per bound volume including parts. Indexed: Carswell"s Index to Ca- fois par ann´ee. L"abonnement est de 350 $ par volume reli´e incluant les fasci-

nadian Legal Literature. cules. Indexation: Index `a la documentation juridique au Canada de Carswell.

Editorial Offices are also located at the following address: 430 rue St. Pierre, Le bureau de la r´edaction est situ´e `a Montr´eal — 430, rue St. Pierre, Mon-

Montr´eal, Qu´ebec, H2Y 2M5. tr´eal, Qu´ebec, H2Y 2M5. ________ ________ 2011 Thomson Reuters Canada Limited 2011 Thomson Reuters Canada Limit´ee

NOTICE AND DISCLAIMER: All rights reserved. No part of this publica- MISE EN GARDE ET AVIS D"EXON

´ERATION DE RESPON-

tion may be reproduced, stored in a retrieval system, or transmitted, in any SABILIT ´E : Tous droits r´eserv´es. Il est interdit de reproduire, m´emoriser sur

form or by any means, electronic, mechanical, photocopying, recording or un syst`eme d"extraction de donn´ees ou de transmettre, sous quelque forme ou

otherwise, without the prior written consent of the publisher (Carswell). par quelque moyen que ce soit, ´electronique ou m´ecanique, photocopie, enre-

gistrement ou autre, tout ou partie de la pr´esente publication, `a moins d"en

avoir pr´ealablement obtenu l"autorisation ´ecrite de l"´editeur, Carswell.A licence, however, is hereby given by the publisher:

Cependant, l"´editeur conc`ede, par le pr´esent document, une licence :

(a) to a lawyer to make a copy of any part of this publication to give to a a) `a un avocat, pour reproduire quelque partie de cette publication pour

judge or other presiding officer or to other parties in making legal submis- remettre `a un juge ou un autre officier-pr´esident ou aux autres parties dans

sions in judicial proceedings; une instance judiciaire; b) `a un juge ou un autre officier-pr´esident, pour produire quelque partie de

(b) to a judge or other presiding officer to produce any part of this publication cette publication dans une instance judiciaire; ou

in judicial proceedings; orc) `a quiconque, pour reproduire quelque partie de cette publication dans le

cadre de d´elib´erations parlementaires.

(c) to anyone to reproduce any part of this publication for the purposes of" Instance judiciaire » comprend une instance devant une cour, un tribunal ouparliamentary proceedings.une personne ayant l"autorit´e de d´ecider sur toute chose affectant les droits ou

les responsabiliti´es d"une personne.

“Judicial proceedings" include proceedings before any court, tribunal or per-Ni Carswell ni aucune des autres personnes ayant particip´e `a la r´ealisation etson having authority to decide any matter affecting a person"s legal rights or`a la distribution de la pr´esente publication ne fournissent quelque garantieliabilities.que ce soit relativement `a l"exactitude ou au caract`ere actuel de celle-ci. Il est

entendu que la pr´esente publication est offerte sous la r´eserve expresse que ni

Carswell and all persons involved in the preparation and sale of this publica- Carswell, ni le ou les auteurs de cette publication, ni aucune des autres per-

tion disclaim any warranty as to accuracy or currency of the publication. This sonnes ayant particip´e `a son ´elaboration n"assument quelque responsabilit´e

publication is provided on the understanding and basis that none of Carswell, que ce soit relativement `a l"exactitude ou au caract`ere actuel de son contenu

the author/s or other persons involved in the creation of this publication shall ou au r´esultat de toute action prise sur la foi de l"information qu"elle

be responsible for the accuracy or currency of the contents, or for the results renferme, ou ne peuvent ˆetre tenus responsables de toute erreur qui pourrait

of any action taken on the basis of the information contained in this publica- s"y ˆetre gliss´ee ou de toute omission.

tion, or for any errors or omissions contained herein.La participation d"une personne `a la pr´esente publication ne peut en aucun

cas ˆetre consid´er´ee comme constituant la formulation, par celle-ci, d"un avis

No one involved in this publication is attempting herein to render legal, ac- juridique ou comptable ou de tout autre avis professionnel. Si vous avez

counting, or other professional advice. If legal advice or other expert assis- besoin d"un avis juridique ou d"un autre avis professionnel, vous devez

tance is required, the services of a competent professional should be sought. retenir les services d"un avocat ou d"un autre professionnel. Les analyses

The analysis contained herein should in no way be construed as being either comprises dans les pr´esentes ne doivent ˆetre interpr´et´ees d"aucune fa¸con

official or unofficial policy of any governmental body. comme ´etant des politiques officielles ou non officielles de quelque organ-

isme gouvernemental que ce soit.

8 The paper used in this publication meets the minimum requirements of8 Le papier utilis´e dans cette publication satisfait aux exigences minimales

American National Standard for Information Sciences — Permanence of Pa- de l"American National Standard for Information Sciences — Permanence of

per for Printed Library Materials, ANSI Z39.48-1984. Paper for Printed Library Materials, ANSI Z39.48-1984.

ISSN 0701-1733 ISBN 978-0-7798-0475-7

Printed in Canada by Thomson Reuters

CARSWELL, A DIVISION OF THOMSON REUTERS CANADA LIMITED

One Corporate Plaza Customer Relations

2075 Kennedy Road Toronto 1-416-609-3800

Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164

M1T 3V4 Fax 1-416-298-5082

www.carswell.com

E-mail www.carswell.com/email

Hansen v. Tilley161

[Indexed as: Hansen v. Tilley] Joey Hansen (Respondent / Plaintiff) And Derrick Harder and Peak Publications Society (C.O.B. “The Peak") (Appellants / Defendants)

British Columbia Court of Appeal

Rowles, Lowry, Neilson JJ.A.

Heard: May 12, 2010

Judgment: November 1, 2010

Docket: Vancouver CA037029, 2010 BCCA 482

D. Sutherland, D. Kripp for Appellants

R.A. McConchie for Respondent

Torts----Defamation — Publication — Publication in mass media — Newspa- pers — General principles----Defence of responsible journalism — Plaintiff H was fi- nancial and services coordinator of Douglas Students Union (DSU) — Defendants were editor of paper and website at college, and those publications — Committee voted to ter- minate H"s employment but he was reinstated — Report was leaked to student press — Writer wrote three articles about H — Report was corrected — H brought action for dam- ages for defamation — Action was granted; H was awarded damages of $30,000 — Trial judge found that auditor"s corrections to his report gave accurate version of events and there was no evidence plaintiff was guilty of misconduct — Inferences flowing from three articles were found to be false and defamed H — Trial judge rejected defences of statutory qualified privilege and responsible journalism — Defendants appealed — Ap- peal dismissed — Trial judge did not err in finding that defence of responsible communi- cation on matters of public interest was not available to defendants as they had not shown level of journalistic responsibility required — Trial judge assessed defendants" claim without benefit of Supreme Court"s ruling on factors to be applied — Findings could be applied to new jurisprudence — Trial judge did not overstate or misapprehend serious- ness of allegations — Trial judge did not err by considering meaning of defamatory com- ments too early in his analysis — Trial judge was not required to consider factors in any particular order — Seriousness of allegations was relevant to other factors so when it is considered is irrelevant — Trial judge considered meaning of comments at several times in his analysis and they reasonably bore meaning he ascribed to them — Trial judge did not err in taking most serious view of statements — Defendants had duty to responsibly investigate and confirm those statements indicating there was financial malfeasance before publication — Trial judge did not err in amount of weight he put on flaws in audi- tor"s report that were repeated in articles — Trial judge did not err in finding that defend- ants made insufficient efforts to confirm information they had from auditor"s report — Trial judge did not err in finding that standard of responsible journalism required defend- ants to distinguish between forensic review and audit and that mischaracterization gave report undeserved reliability — Trial judge did not err in finding defendants efforts to contact plaintiff were inadequate — There was proper evidentiary basis for trial judge to make finding. Torts----Defamation — Privilege — Qualified privilege — When qualified privi- lege arises — Matters of general interest — Miscellaneous----Plaintiff H was finan- CANADIAN CASES ON THE LAW OF TORTS 78 C.C.L.T. (3d)162 cial and services coordinator of Douglas Students Union (DSU) — Committee voted to terminate H"s employment after receiving auditor"s review — Report was leaked to stu- dent press — Writer wrote three articles about H — Report was corrected — H brought action for damages for defamation — Action was granted; H was awarded damages of $30,000 — Trial judge found that auditor"s corrections to his report gave accurate version of events and there was no evidence plaintiff was guilty of misconduct — Inferences flowing from three articles were found to be false and defamed H — Trial judge rejected defences of statutory qualified privilege and responsible journalism — Defendants ap- pealed — Appeal dismissed — Trial judge did not err in rejecting statutory qualified privilege — Defendants were required to show meeting was public and articles were fair and accurate reports — Trial judge did not err in finding that defendants could not prove those elements — Trial judge made no overriding and palpable error in reaching his con- clusions — When trial judge found that meeting was not public he did not fail to assess relevant evidence — Findings were supported by evidence — Attendance at meeting was restricted to union members — No one else was at meeting other than auditor — No press were present — Committee did not intend meeting to be public as it was convened to discuss private and confidential report on serious internal financial matters and decide of further steps — There was sufficient factual basis to support finding — Trial judge also did not err in finding that articles failed to fairly and accurately report events — Defendants improperly identified report as forensic audit and not forensic review which imported to auditor"s findings higher level of reliability than they deserved — Report ac- tually contained significant errors — Second and third articles stated or implied that audit revealed possible fraud or misappropriation of funds which was totally inaccurate — Trial judge was correct in finding that third article did not reflect appropriate standards of fairness and accuracy. Torts----Defamation — Damages — Factors to be considered in award — Miscel- laneous----Plaintiff H was financial and services coordinator of Douglas Students Union (DSU) — Committee voted to terminate H"s employment after receiving auditor"s review — Report was leaked to student press — Writer wrote three articles about H — Report was corrected — H brought action for damages for defamation — Action was granted; H was awarded damages of $30,000 — Trial judge found that auditor"s correc- tions to his report gave accurate version of events and there was no evidence plaintiff was guilty of misconduct — Inferences flowing from three articles were found to be false and defamed H — Trial judge rejected defences of statutory qualified privilege and responsi- ble journalism — Defendants appealed — Appeal dismissed — Trial judge did not err in rejecting statutory qualified privilege — Defendants were required to show meeting was public and articles were fair and accurate reports — Trial judge did not err in finding that defendants could not prove those elements — Trial judge made no overriding and palpa- ble error in reaching his conclusions — When trial judge found that meeting was not public he did not fail to assess relevant evidence — Findings were supported by evi- dence — Attendance at meeting was restricted to union members — No one else was at meeting other than auditor — No press were present — Committee did not intend meet- ing to be public as it was convened to discuss private and confidential report on serious internal financial matters and decide of further steps — There was sufficient factual basis to support finding — Trial judge also did not err in finding that articles failed to fairly and accurately report events — Defendants improperly identified report as forensic audit and not forensic review which imported to auditor"s findings higher level of reliability

Hansen v. Tilley163

than they deserved — Report actually contained significant errors — Second and third articles stated or implied that audit revealed possible fraud or misappropriation of funds which was totally inaccurate — Trial judge was correct in finding that third article did not reflect appropriate standards of fairness and accuracy.

Cases considered by Neilson J.A.:

Bonnick v. Morris (2002), [2003] 1 A.C. 300, [2002] UKPC 31, [2002] E.M.L.R. 37, 12 B.H.R.C. 558, 146 S.J.L.B. 161, [2002] 3 W.L.R. 820 (Jamaica P.C.) — considered Cusson v. Quan (2007), 87 O.R. (3d) 241, 286 D.L.R. (4th) 196, 2007 CarswellOnt 7310,

2007 CarswellOnt 7311, 2007 ONCA 771, 164 C.R.R. (2d) 284, 53 C.C.L.T. (3d)

122, 231 O.A.C. 277, [2007] O.J. No. 4348 (Ont. C.A.) — considered

Cusson v. Quan (2009), 397 N.R. 94, 314 D.L.R. (4th) 55, 2009 SCC 62, 2009 Carswell- Ont 7958, 2009 CarswellOnt 7959, 70 C.C.L.T. (3d) 1, (sub nom. Quan v. Cusson) [2009] 3 S.C.R. 712, 258 O.A.C. 378 (S.C.C.) — considered Grant v. Torstar Corp. (2008), 71 C.P.R. (4th) 352, 301 D.L.R. (4th) 129, 243 O.A.C.

120, 92 O.R. (3d) 561, 2008 ONCA 796, 2008 CarswellOnt 7155, 61 C.C.L.T. (3d)

195 (Ont. C.A.) — referred to

Grant v. Torstar Corp. (2009), 204 C.R.R. (2d) 1, [2009] 3 S.C.R. 640, 397 N.R. 1, 258 O.A.C. 285, 72 C.C.L.T. (3d) 1, 314 D.L.R. (4th) 1, 2009 CarswellOnt 7956, 2009 CarswellOnt 7957, 2009 SCC 61, 79 C.P.R. (4th) 407, EYB 2009-167615, [2009]

S.J. No. 61 (S.C.C.) — followed

Housen v. Nikolaisen (2002), 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, 2002 CarswellSask 178, 2002 CarswellSask 179, 2002 SCC 33,

30 M.P.L.R. (3d) 1, 219 Sask. R. 1, 272 W.A.C. 1, [2002] 2 S.C.R. 235, [2002]

S.C.J. No. 31, REJB 2002-29758 (S.C.C.) — referred to Jameel v. Wall Street Journal Europe SPRL (No. 3) (2006), [2006] UKHL 44, [2006] 3 W.L.R. 642, 156 N.L.J. 1612, [2007] Bus. L.R. 291, [2007] 1 A.C. 359, [2006] 4 All E.R. 1279, 21 B.H.R.C. 471, [2007] E.M.L.R. 2, 150 S.J.L.B. 1392, 103 L.S.G. 36 (Eng. H.L.) — referred to Lewis v. Daily Telegraph Ltd. (1963), (sub nom. Rubber Improvement Ltd. v. Daily Tele- graph) [1964] A.C. 234, [1963] 2 W.L.R. 1063, [1963] 2 All E.R. 151 (U.K. H.L.) — considered McCartan Turkington Breen v. Times Newspapers Ltd. (2000), [2000] 4 All E.R. 913, [2001] 2 A.C. 277 (U.K. H.L.) — distinguished Reynolds v. Times Newspapers Ltd. (1999), [1999] 3 W.L.R. 1010, [1999] UKHL 45, [2001] 2 A.C. 127, [1999] 4 All E.R. 609, [1999] H.L.J. No. 45 (U.K. H.L.) — considered

Statutes considered:

Libel and Slander Act, R.S.B.C. 1996, c. 263

s. 1 “public meeting" — considered s. 4(1) — considered CANADIAN CASES ON THE LAW OF TORTS 78 C.C.L.T. (3d)164

Words and phrases considered:

public meeting

Section 1 of the Act defines “public meeting":

“public meeting" means a meeting genuinely and lawfully held for a public purpose, and for the furtherance or discussion of a matter of public concern, whether the admission to it is general or restricted; Lord Bingham and Lord Steyn each concluded the public or private nature of a meeting is determined by reference to the intention or objective of its organizers. At 923, Lord

Bingham stated:

... Thus ‘public", a familiar term, must be given its ordinary meaning. A meeting is public if those who organise it or arrange it open it to the public or, by issuing a general invitation to the press, manifest an intention or desire that the proceedings of the meeting should be communicated to a wider public. Press repre- sentatives may be regarded either as members of the public (as made clear by the language of para 10 of the Schedule) or as the eyes and ears of the public to whom they report. A meeting is private if it is not open to members of the pubic and if it is not intended that the proceedings of a meeting should be communi- cated to the public, unless perhaps by the body which holds the meeting. APPEAL from judgment reported at Hansen v. Tilley (2009), 2009 BCSC 360, 2009 Car- swellBC 687 (B.C. S.C.).

Neilson J.A.:

1 The appellants bring this appeal from an order of a Supreme Court judge pronounced March 17, 2009, granting the respondent, Joey Hansen, damages of $30,000 for defamation arising from three articles published in “The Peak", the Simon Fraser University student newspaper, and on The Peak website.

Background

2 The facts are not substantially in dispute. The following summary is taken largely from the reasons for judgment of the trial judge. 3 The appellant Peak Publications Society publishes The Peak. The appellant Derrick Harder was The Peak"s copy editor and edited and approved the three articles. Kevin Tilley, The Peak"s news editor, wrote the articles. Mr. Tilley was named as a defendant in the action but Mr. Hansen did not proceed against him. 4 Mr. Hansen has a long history of involvement in student government as- sociations, both provincially and with the Canadian Federation of Students. Dur- ing the relevant events he was the financial and services coordinator of the Douglas Students Union (the “DSU"), a student organization at Douglas Col- lege. In the spring of 2006, the DSU was in general turmoil. Two factions of its

Hansen v. TilleyNeilson J.A. 165

members were disputing the results of the annual election for members of the DSU"s governing board, the DSU representative committee. As well, there was controversy between these two groups over Mr. Hansen"s stewardship of the DSU"s financial affairs. In early 2006 Douglas College, which collects member- ship fees for the DSU from its students, refused to remit those fees to the DSU until it received a report from the DSU"s accountants that verified the DSU"s finances conformed to statutory audit requirements. 5 As a result, in March 2006 the DSU treasurer, Jessica Gojevic, contacted Mr. Ron Parks, a well-known forensic accountant, and retained him to conduct a forensic audit of the DSU"s finances. Soon after he was retained Mr. Parks learned the DSU did not have sufficient funds to pay for a full forensic audit. As a result, he instead performed a forensic review, a process that is significantly less rigorous and extensive than an audit. 6 Mr. Parks had difficulty gathering the DSU"s financial information as many documents appeared to be unavailable. He obtained information from a variety of sources including Ms. Gojevic, DSU staff, Mr. Hansen, and the DSU"s ac- countants, who were performing an audit of the DSU"s finances at the same time. 7 The accountants advised Mr. Parks that the DSU had issued 100 personal cheques to Mr. Hansen in addition to payroll cheques. They also told Mr. Parks that on December 6, 2004 the DSU had issued a cheque to Christa Peters, Mr. Hansen"s domestic partner, to be used as a down payment on a house. 8 Mr. Parks completed his report on April 18, 2006. It was titled “Report on Forensic Review" and marked “Private and Confidential". It was very critical of Mr. Hansen"s skills and performance as the financial manager of the DSU, and recommended a number of changes to improve internal controls and accounta- bility. Under the heading “Specific Accountability Concerns" Mr. Parks made these comments about Mr. Hansen: We note that over one hundred cheques, in addition to payroll cheques, were issued payable to Joey Hansen in the year ended August 31, 2005. We under- stand the auditors have requested from him documentation adequate to sup- port these expenditures, but he has not yet provided same. We have not quantified the amounts involved, as your auditors are working on this, but regardless of the amounts, we regard this as a serious breach of internal con- trol and accountability, and if Mr. Hansen is unable to produce adequate doc- umentation, a misappropriation of funds. We found a cheque payable to Christa Peters in the amount of $20,000 dated December 6, 2004. The amount was repaid to DSU on December 22, 2004. We understand Christa Peters is the partner of Mr. Hansen, who confirmed that to us and stated that it was intended to be a temporary loan for the pur- pose of making a down-payment on a house. The cheque was signed by Mr. Hansen and Jeremy Gervan, who Mr. Hansen said “approved" the loan. In our view, Mr. Hansen and Mr. Gervan exceeded their authority, and the loan CANADIAN CASES ON THE LAW OF TORTS 78 C.C.L.T. (3d)166 should have been approved, if at all, by the Representative Committee. Not- withstanding the repayment, this is an example of blatant misuse of DSU member funds. 9 On April 19, 2006 Mr. Parks presented his report to a meeting of the repre- sentative committee. There were about 12 people at the meeting. Mr. Harder, Mr. Tilley, and Mr. Hansen were not there. Ms. Gojevic handed out copies of Mr. Parks" report to those present. No one cautioned them to keep the contents confidential or asked them to return the reports when the meeting concluded. After Mr. Parks presented a summary of his findings, the committee members voted to terminate Mr. Hansen"s employment. 10 Subsequently, the committee determined there was no proper quorum at the meeting, and the vote to terminate Mr. Hansen was invalid. He was placed on a paid leave until the DSU formally terminated his employment in November 2006.
11 Around May 1, 2006 Mr. Tilley received a copy of the Parks report, most likely from Jan Gunn, a Douglas College student and Mr. Harder"s domestic partner. Ms. Gunn was a member of the student faction opposed to Mr. Hansen and had been at the April 19 meeting. Mr. Tilley interviewed several representa- tives of the DSU, including Ms. Gunn, and these inquiries led to publication of the three articles. 12 The first article was published on May 8, 2006. It described the “controver- sial" financial crisis in the DSU, the fact Mr. Hansen had been terminated and then reinstated as there had not been a proper quorum, and that he was now on a paid leave. It gave a history of the financial difficulties leading to those actions, and cited comments from two members of the representative committee who supported the decisions regarding Mr. Hansen. Mr. Hansen established the fol- lowing statements in the article were defamatory: ... the results of a forensic audit showed serious discrepancies in the way money was handled within the organization ... The forensic audit revealed over 100 unapproved cheques payable to Mr. Hansen, which have yet to be documented or accounted for. Additionally, the auditor found a cheque to Christa Peters, Hansen"s partner, for $20,000 al- legedly for a down-payment on a house. The amount was repaid to the DSU two weeks later. 13 The second article was published on May 23, 2006. Its primary focus was the controversy between the two factions of the DSU arising from the recent elections. It described the financial problems arising from the refusal of Douglas College to hand over student dues to the DSU, and set out this statement, which

Mr. Hansen established was defamatory:

The College Board of Douglas College has been withholding the DSU"s funds since last fall following a scathing financial audit which showed sig- nificant discrepancies in internal controls as well as possible fraud and mis- appropriation of funds by the DSU"s Financial Coordinator.

Hansen v. TilleyNeilson J.A. 167

14 The third article was published on June 26, 2006 and focused on a reported police investigation into the DSU finances. It reiterated some of the financial and political difficulties in the DSU, summarized Mr. Hansen"s background with student organizations, and said he remained on leave as investigations continued. Mr. Hansen established several aspects of this edition of The Peak were de- famatory. Its cover had a drawing of two police officers, one holding a magnify- ing glass and the other a notebook, with a caption reading “Busted! Police launch investigation on Douglas (College) Students" Union News, page 6." Page

6 set out this headline:

Police investigate DSU

Police probe launched after financial mishandlings at Douglas Students" Union The article that followed included these statements: The New Westminster Police have launched an investigation at the Douglas Students" Union into crimes relating to the organization"s finances, the DSU has recently confirmed. The investigation was initiated after an anonymous Douglas College student contacted the police following a forensic auditor"s report showing potential fraud and misappropriation of funds. The DSU wouldn"t say whether any specific individuals are under investiga- tion, but Joey Hansen, the finance and services coordinator responsible for the union"s finances remains on leave since the auditor"s report.

Hansen was unavailable for comment.

The report notes a number of specific issues that drew attention to Hansen. In particular a $20,000 cheque signed by Hansen was made out to Hansen"s partner for the purpose of making a down payment on a house. The money, although paid back to the DSU several weeks later, was never approved by the organization. This would not be the first time a high-ranking CFS official has been in the police spotlight. The article also stated Mr. Hansen claimed “he was entitled to the money as a result of outstanding overtime and other payroll issues." 15 On June 28, 2006 Mr. Hansen"s counsel wrote to Mr. Parks advising him his forensic review contained errors with respect to both the number of cheques written to Mr. Hansen and the $20,000 cheque payable to Ms. Peters. Mr. Parks responded in a letter dated July 13, 2006, which stated: Further to our report of April 18, 2006, we wish to amend certain of our findings as follows. CANADIAN CASES ON THE LAW OF TORTS 78 C.C.L.T. (3d)168 On page 8 of our report, ... we referred in the first paragraph to “over one hundred cheques, in addition to payroll cheques, were issued payable to Joey Hansen in the year ended August 31, 2005." This was information we re- ceived from your auditors, which they subsequently have amended. They have confirmed that the number of cheques in question was twenty-one, and that to date, despite their requests, they have received no supporting docu- mentation for these cheques. This amendment does not change our conclu- sion regarding the issues of internal control and accountability. In the second paragraph ... we stated that we “found" a cheque payable to Christa Peters in the amount of $20,000. The word “found" was an unfortu- nate choice, as we should have stated we were “informed" of the details of the cheque. We recently received a copy of the cheque and note that Joey Hansen did not sign the cheque. We are unable to clearly determine the first signatory, but the second appears to be Jeremy Gervan. 16 Mr. Hansen commenced his action against the appellants on June 30, 2006. He grieved his dismissal through his union, and reached a settlement with the DSU in which it acknowledged there was no evidence he was guilty of fraud or misappropriation.

The Findings of the Trial Judge

17 The trial judge considered whether the statements were defamatory, and found an ordinary person would reasonably have understood the May 8 article to import: (a) that over 100 cheques had been issued to Mr. Hansen without the approval of his employer and that in spite of the efforts of a profes- sional forensic auditor the cheques could not be documented or ac- counted for; and (b) that the auditor had “found" an unapproved $20,000 cheque payable to Mr. Hansen"s partner, Christa Peters, allegedly for a down-pay- ment on a house and that upon the cheque being discovered by the auditor, the $20,000 was repaid to the DSU some two weeks later. 18 He found the statements in the May 23 article inferred that Mr. Hansen was guilty of fraud and misappropriation of monies from the DSU or, at the least, there were reasonable grounds to reach that conclusion. 19 The trial judge concluded the June 26 cover and article in The Peak would reasonably be understood to mean: (a) that the two officers depicted on the cover are involved in a police investigation in which they had “busted" or charged someone as a result of the investigation of the DSU; (b) that a complaint from an anonymous Douglas College student initi- ated the police investigation after the forensic review showed poten- tial fraud and misappropriation of monies from the DSU;

Hansen v. TilleyNeilson J.A. 169

(c) that the DSU would not say who was being investigated, but the arti- cle then added that Mr. Hansen, the finance and service coordinator responsible for the DSU"s finances, had been on leave since the au- ditor"s report inferring that Mr. Hansen was the individual under investigation; (d) that the article further linked the police investigation directly to Mr. Hansen when it drew attention to Mr. Hansen in stating that a $20,000 cheque signed by Mr. Hansen and payable to his partner, Ms. Peters, although repaid, was never approved by the DSU, infer- ring that Mr. Hansen was guilty of fraud and misappropriation. 20 The trial judge accepted Mr. Parks" corrections to his report gave the true version of events. He found there was no evidence that Mr. Hansen was guilty of fraud or misappropriation of funds from the DSU. He also found that in Decem- ber 2004 Mr. Hansen obtained the approval of two members of the DSU execu- tive to receive the $20,000 advance to allow Ms. Peters to purchase their home, and those two members signed the cheque. The funds were secured against out- standing overtime payable to Mr. Hansen, and were repaid two weeks after they were borrowed. 21
The trial judge also found there was no evidence the police investigated the DSU"s finances. There were only rumours of an investigation from a DSU board member who was an opponent of Mr. Hansen, and an unsubstantiated statement from a student who told Mr. Tilley she had complained to the police. 22
The trial judge concluded the inferences flowing from the three articles were false and defamed Mr. Hansen. He noted the appellants declined to prove the truth of the allegations, and instead advanced the defence of statutory qualified privilege under s. 4(1) of the Libel and Slander Act, R.S.B.C. 1996, c. 263, and the emerging defence of responsible journalism. The trial judge considered and rejected both defences, and awarded Mr. Hansen damages of $30,000.

Grounds of Appeal

23
quotesdbs_dbs24.pdfusesText_30

[PDF] Cépage

[PDF] Cépage : Pinot Noir Mode de vinification et d`élevage : Dégustation - Anciens Et Réunions

[PDF] Cépage: Tempranillo Vin rouge Crianza. Son élaboration se réalise - Anciens Et Réunions

[PDF] CEPAGES D`ANTAN

[PDF] CÉPAGES PLUS D`INFORMATIONS LOUREIRO Désignation: Vinho

[PDF] CEPAL LAXOU 54 - Prix Goût et Santé des Apprentis - Généalogie

[PDF] Cepal prevé crecimiento cero de Brasil y Argentina - Mexique Et Amérique Centrale

[PDF] CEPASCO SPIGOL FETE SES 140 ANS SUR LE SALON SIAL !!

[PDF] CEPCM newsletter september 2015 - AP-HM

[PDF] cepe/concours d`entree en sixieme

[PDF] Cépes séchés en Poudre et Brisures - Anciens Et Réunions

[PDF] CEPEX Dossier de subvention - Téléphones

[PDF] céphalée brutale

[PDF] Céphalée de tension - International Association for the Study of Pain - Santé Et Remise En Forme

[PDF] Céphalée progressive