Fagan v. Andrews, 2011 NLCA 15

Date: 20110131 Docket: 10/97 Citation: Fagan v. Andrews , 2011 NLCA 15 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : WILLIAM T. FAGAN APPELLANT AND : EMIR ANDREWS RESPONDENT Coram: Rowe, Barry and Hoegg, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (General) 200901T0851 Appeal Heard: January 19, 2011 Judgment Rendered: January 31, 2011 Reasons for Judgment by Barry, J.A. Concurred in by Rowe and Hoegg, JJ.A. Counsel for the Appellant: Donald K. Powell Counsel for the Respondent: Blair Pritchett and Melissa Hill

Barry, J.A.: [1] In letters concerning operations of the then dysfunctional town council of Portugal Cove-St. Phillips, Ms. Andrews describedMr. Fagan as paranoid, manipulative and vicious. In a letter to her employer, he described her as an unprofessional and unethical liar. She filed a defamation claim and his counterclaim followed. Mr. Fagan lost at trial and now appeals the decision which awarded Ms.Andrews $10,000.00 general damages and $5,000.00 aggravated damages and dismissed his counterclaim. BACKGROUND FACTS [2] Mr. Fagan, at the relevant time, was a town councilor (he later became Mayor) and Ms.

Andrews was the spouse of anothercouncilor. [3] The Department of Municipal Affairs had received a report (the Kelly report) following an investigation into the town’soperations. This report made recommendations to fix the town’s problems. [4] Following submission of this report, Ms. Andrews on February 7, 2008, wrote the Minister of Municipal Affairs alleging thatMr. Fagan was at the center of activities which were disrupting the entire staff of the town. In that letter and another to the Director ofOperations with the Department of Municipal Affairs on February 15, 2008, Ms.

Andrews referred to her background as a teacher ofpsychology at Memorial University and her expertise in the study of human behaviour and described what she saw as the “unusualbehaviour” of Mr. Fagan, from which she concluded he was “little short of dangerous, … paranoid, manipulative and vicious when hedoes not get his own way”. [5] Her letter to the Minister had the heading “THIS COMMUNICATION IS PERSONAL AND CONFIDENTIAL – FOR THEMINISTER ONLY, AND NOT FOR DISSEMINATION TO ANYONE ELSE”. The letter to the Director began with “PRIVATE ANDCONFIDENTIAL”. [6] After Ms.

Andrews sent the letter, a second report (the Stratton report) advised on the implementation of the Kelly reportrecommendations. Attached as appendices to the Stratton report, which was widely disseminated, were Ms. Andrews’ two letters. [7] Mr. Fagan wrote a letter on April 28, 2008, to the Dean of Science for Memorial University, the senior academicadministrator of the academic faculty that employed Ms. Andrews. This letter referred to “unprofessional and unethical” behaviour ofMs.

Andrews in writing her letters and labeled the information she provided as “false, downright lies”, while characterizing hercomments toward him as reflecting unfavorably on the mentally ill generally. [8] The Dean responded that it would not be appropriate for the University to investigate the matter since he concluded theletters set out Ms. Andrews’ personal opinion as a private citizen on matters unrelated to the University. THE TRIAL DECISION [9] The trial judge found that Mr. Fagan’s allegation that Ms.

Andrews acted unprofessional and unethically and the reference tostatements in her letter as “false, downright lies” were defamatory of Ms. Andrews in that the statements would tend to lower herreputation in the mind of a reasonable person to whom the statements were made. The trial judge concluded the defence of qualifiedprivilege did not apply to Mr. Fagan in the circumstances. [10] The trial judge also found that Ms. Andrews’ description of Mr.

Fagan as “little short of dangerous … paranoid, manipulativeand vicious when he does not get his own way” was defamatory but protected by the law of qualified privilege. THE STANDARD OF REVIEW [11] The parties agree that the appropriate standard of review is correctness for pure questions of law and palpable and overridingerror for findings of fact and questions of mixed fact and law (unless it is clear in the latter case that the trial judge made some extricableerror in principle, in which case the applicable standard is correctness): Housen v. Nickolaisen, 2002 SCC 33 [2002] 2 S.C.R.235.

THE ISSUES [12] Three issues arise: (

i) Were the comments of Mr. Fagan defamatory? (ii) Were Ms. Andrews’ admittedly defamatory comments protected by qualified privilege or beyond the limits of that defence becauseof their not being relevant or pertinent in the circumstances? (iii) Did the trial judge err in awarding $10,000 general damages and $5,000 aggravated damages? THE LAW AND ANALYSIS (

i) The Fagan Letter [13] The trial judge did not err in concluding that Mr. Fagan defamed Ms. Andrews by characterizing her conduct as unprofessionaland unethical and by describing the information she provided as “false, downright lies”. Support for this conclusion is found in Hill v.Church of Scientology of Toronto (1995), (SCC), 126 D.L.R. (4th) 129 (S.C.C.), where the court stressed theimportance of protecting professional reputations. In this jurisdiction, Peckham v. Mount Pearl (City) and Connolly (1994), 1994

10368 (NL SC), 122 Nfld. & P.E.I.R. 142, held that an allegation of lying was defamatory. Kelsie v. Canada (AttorneyGeneral) (2003), 2003 NLSCTD 139 230 Nfld. & P.E.I.R. 255 (NLTD), aff’d 2005 NLCA 27, found defamation in anallegation of unprofessional misconduct. [14] Mr. Fagan provided no basis for a defence of qualified privilege. The trial judge properly found that Memorial University’sRespectful Workplace Policy had no application to Ms. Andrews’ comments, which dealt with behaviour outside the University,unrelated to University matters. (ii) The Letters of Ms.

Andrews [15] The trial judge did not err in concluding that Ms. Andrews’ comments regarding Mr. Fagan were defamatory. Indeed Ms.Andrews did not challenge this conclusion at trial or on appeal. The only question here is whether Ms. Andrews should receive theprotection of qualified privilege. [16] The trial judge correctly adopted the law as stated by Raymond E.

Brown, The Law of Defamation in Canada, (2nd ed. 1994),vol. 1, at pp. 829-31, where he noted that private citizens have an interest in bringing to the attention of appropriate officials misconductand neglect of duty in the administration of public affairs and “in performing this service they need the assurance that their acts of publiccitizenship will not fall prey to civil actions for damages where they have provided false information in the best of good faith”. [17] The trial judge correctly found that Ms.

Andrews had an interest in the operations of the Town and the Minister and his seniorofficial had a reciprocal interest in receiving her comments. [18] Qualified privilege attaches to the occasion on which defamatory comments are made. It may be defeated when the limits ofthe interest have been exceeded. It will not protect language that is not relevant or pertinent to the safeguarding of a citizen’s interest inparticular circumstances. See, Hill, at paras. 143-147, and Kelsie, at para. 33. While the trial judge did not expressly consider whetherMs.

Andrews’ comments had exceeded the bounds of appropriate language, Mr. Fagan has not shown that on the facts of this case sheshould lose the protection of qualified privilege. Mr. Fagan had been criticized in a governmental report on the affairs of the Town. Ms.Andrews had a legitimate interest in commenting upon his behaviour. While Ms. Andrews’ emphasis on her professional expertiseregarding human behaviour borders on the limits of what should be considered relevant or pertinent, those comments in themselves werenot defamatory. They provided an explanation for why Ms.

Andrews felt she could make the remarks which were defamatory. Thedefamatory remarks relate directly to Mr. Fagan’s conduct and competence in his role as town councilor and therefore enjoy theprotection of the privilege. Consequently, I am not persuaded that the trial judge erred in affording her the protection of qualifiedprivilege in the circumstances. To conclude otherwise would be to cast a chill upon the right of citizens to call public officials toaccount. (iii) Damages (

a) General Damages [19] This Court should not interfere with a trial judge’s award of damages in a libel action “unless it is satisfied that he arrived at hisfigure either by applying a wrong principle of law or through a misapprehension of the facts or that the amount awarded was soextremely high or so low as to make it an entirely erroneous estimate of the damages”. See, Farrell v. St. John’s Publishing Co.(1985), (NL CA), 58 Nfld. & P.E.I.R. 66 (Nfld. C.A.), confirmed in Tremblay v.

Campbell (2010), 289 Nfld. &P.E.I.R. 8, (NLCA), at para. 130. [20] The trial judge correctly noted the factors to be considered in determining damages for defamation, as identified in Hill, atpara. 182: They are entitled to take into their consideration the conduct of the plaintiff, his position and standing, the nature of the libel, the modeand extent of publication, the absence or refusal of any retraction or apology, and ‘the whole conduct of the defendant from the timewhen the libel was published down to the very moment of their verdict.

They may take into consideration the conduct of the defendantbefore action, after action, and in court at the trial of the action’, and also, it is submitted, the conduct of his counsel, who cannot shelterhis client by taking responsibility for the conduct of the case. They should allow ‘for the sad truth that no apology, retraction orwithdrawal can ever be guaranteed completely to undo the harm it has done or the hurt it has caused’. They should also take intoaccount the evidence led in aggravation or mitigation of the damages. [21] Mr.

Fagan has not shown that the trial judge either applied a wrong principle of law or misapprehended the facts. The amountawarded was not so extremely high as to make it an entirely erroneous estimate of the damages. Compare, for example, the award inPeckham v. Mount Pearl (City), where a city councilor accused a senior public servant in a council debate with media present, ofhaving deliberately lied to a Minister of the Crown and the Premier and stated that the public servant had participated in ‘an exercise ofsabotage’ respecting a proposed bill regarding the provision of regional services.

There the court awarded $12,000 in general damages. [22] In the present case the trial judge, while noting publication was restricted to the Dean of Science and the University counsel,properly considered the anxiety created for Ms. Andrews by having Mr. Fagan’s letter in her personnel file. The trial judge alsocorrectly noted that it was a “serious and unworthy thing” to attempt to smear a person’s good character and integrity by impugning theperson’s personal and professional reputation. (

b) Aggravated Damages [23] The trial judge found that Mr. Fagan “deliberately chose to write the defamatory statements to Ms. Andrews’ employer with themalicious intent of causing her as much harm as he could in her employment”. The trial judge also found that Mr. Fagan had deliberatelymischaracterized comments of Ms. Andrews regarding him as applicable to the mentally ill generally and found that thismischaracterization “was particularly hurtful in light of her profession of a university teacher in psychology and the fact they were madeto her employer”.

[ 24 ] The trial judge correctly stated the law, as confirmed in Hill , at para. 188 , to the effect that: Where the defendant is guilty of insulting, highhanded, spiteful, malicious or oppressive conduct which increases the mental distress – the humiliation, indignation, anxiety, grief, fear and the like – suffered by the plaintiff as a result of being defamed, the plaintiff may be entitled to what has come to be known as ‘aggravated damages’.

These damages take into account the additional harm caused to the plaintiff’s feelings by the defendant’s outrageous and malicious conduct… They represent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant: [ 25 ] The trial judge stated, in support of his award of $5,000 aggravated damages at paragraph 57: As can be readily seen, it was not mentally ill persons to whom Ms. Andrews was referring but to Dr. Fagan himself. This deliberate mischaracterization of Ms.

Andrews’ statement was particularly hurtful in light of her profession of a university teacher in psychology and the fact that it was made to her employer. I find this to be an aggravating factor. And also at paragraph 59: … I find the defendant’s statement to have been made deliberately and maliciously. I make this finding on the basis that he mischaracterized statements of Ms. Andrews referred to to attract increased opprobrium from her employer and to inflict a greater professional humiliation on her.

I also conclude that his actions were borne [sic] out of malice and spite and that he chose to send the offending letter to her employer when the issue and dispute had nothing to do with her employment… [ 26 ] I see nothing in the way of palpable and overriding error or misstatement of the law in this approach to aggravated damages. The trial judge found malice and clearly identified two reasons for awarding aggravated damages.

Unlike Tremblay , there is nothing in the language of the trial judge to indicate he engaged in double counting by using substantially the same reasons in awarding aggravated damages as those relied upon for the general damages award. Considering particularly the conduct of Mr. Fagan in sending the defamatory letter to Ms. Andrews’ employer, I do not believe the award was excessive and see no reason for interfering with it.

SUMMARY AND DISPOSITION [ 27 ] In

summary: (

i) the letter of Mr. Fagan was defamatory and not protected by qualified privilege. (ii) while the comments of Ms. Andrews were defamatory, they were protected by qualified privilege. (iii) there is no reason to interfere with the awards of $10,000 general damages and $5,000 aggravated damages. [ 28 ] Ms. Andrews shall have her costs on a party and party basis. _______________________________ L. D. Barry, J.A. I Concur: _________________________ M. H. Rowe, J.A. I Concur: ________________________ L. R. Hoegg, J.A.