2023 MBKB 105, 2023 MBKB 105

Date: 20230627 Docket: CI 15-01-96736 (Winnipeg Centre) Indexed as: Romana v. The Canadian Broadcasting Corporation et al. Cited as: 2023 MBKB 105 COURT OF KING'S BENCH OF MANITOBA B E T W E E N: HAIMANA ROMANA, plaintiff, ) ) ) On their own behalf for the plaintiff - and - ) ) ) THE CANADIAN BROADCASTING CORPORATION, HOLLY MOORE, GOSIA SAWICKA, KATHERYN MEDLAND, BORIS PETER WESNER, HAMISH MCKENZIE defendant(s), ) ) ) ) ) ) ) Robert J.E. Prokopanko Keith J. Ferbers Sean A. Moreman for the defendant(s) ) ) Judgment Delivered: June 27, 2023 MARTIN J.

INTRODUCTION [ 1 ] Haimana (Simon) Romana sued the Canadian Broadcasting Corporation and two of its journalists, Holly Moore and Gosia Sawicka, (collectively, “the CBC”) in defamation for a 2014 CBC investigation report, published on television, radio and the internet, about Mr. Romana and his business ventures. Katherine Medland and Boris Wesner were sources for the story. Hamish McKenzie was a New Zealand journalist who published a pointed

article about Mr. Romana in 2006. During the course of this proceeding, Mr. Romana discontinued his actions against Ms. Medland, Mr. Wesner and Mr. McKenzie. [ 2 ] The thrust of the story is captured in the headline, “ Winnipeg investors angry after entrepreneur’s pitches don’t materialize ” and sub-headline, “ Simon Romana, 57, leaves investors and partners in lurch for large sums of money ”. [ 3 ] The businesses he “pitched” involved gasification machines that could potentially convert primarily municipal waste to syngas which in turn would fuel engines to generate electricity.

A variation was to produce steam to run the engines. Gasifier technology has an empirical basis; it is legitimate technology. In the early 2000s, it was seen as a promising, environmentally friendly way to produce

energy. Many entities around the world invested significantly in research and development. However, it has never been commercially successful on any scale, as certain challenges inherent to the technology have consistently proven impractical to overcome. [ 4 ] The CBC advanced defences of justification (substantial truth), fair comment and responsible communication in matters of public interest. [ 5 ] The trial took place before me, sitting as a judge without a jury. [ 6 ] For many reasons this trial was particularly unique. [ 7 ] First, Mr.

Romana was hampered in that he did not have legal counsel at any point in the proceedings or trial. He was warned of the inherent risks of proceeding in this manner. He was given as much information, help and latitude a judge could reasonably provide a self-represented person. [ 8 ] Second, the backdrop of the story published in 2014 involved events that mostly took place in the decade before, both in Winnipeg and in New Zealand. Unfortunately, it took almost nine years for the action to be heard at trial, in part because Covid-19 forced an adjournment of the trial.

The passage of time was no friend to either party, but especially for Mr. Romana, as putting together the plaintiff’s case became far more challenging. Some witnesses had difficulty recalling events and details, some had died and some could not be found. [ 9 ] Third, Mr. Romana is a complex character. Notably, since a young age, Mr. Romana has suffered from paranoid schizophrenia; evidence that he led. For him, it is a particularly insidious, chronic condition. Its intensity is persistently unstable, requiring constant attention and medication. Otherwise, Mr.

Romana is known as exceptionally intelligent, charismatic and multi-talented, with a gift for painting and music. When properly medicated, he can be relatively focused and organized. Indeed, he comported himself well through years of proceedings and a long trial. Nonetheless, unfortunately, distorted thinking from his mental illness overhangs everything; it is a pervasive presence in all matters related to his businesses, the publications and trial. [ 10 ] I do not make these comments about Mr. Romana’s condition lightly or in any way to embarrass him.

Nonetheless, it is too significant a feature in this case to ignore or hide. Indeed, he relies on it to explain certain issues and behavior. Clearly, in commenting on his mental state, I am not saying it as a slight or to be negative in any way. In this day and age, there should be no stigma attached to any mental health issue. Mr. Romana is not to blame for his condition; it is biological and he is doing everything he can to manage it.

By all accounts, he is doing so relatively well. [ 11 ] Fourth, in 2013, the two key protagonists in the CBC stories themselves were people looking for what amounted to a get-rich- quick scheme; they ignored obvious red flags, as did many other investors referred to in the publications. At the core, plainly and objectively, what Mr. Romana promoted was too good to be true. In fact, in an Investment Statement for one iteration of his business, he literally wrote of the potential returns or profits as “turning straw to gold”.

Perhaps no surprise given human nature, rather than inhibit people, many were seduced by such wild claims. [ 12 ] All this leaves the question of whether Mr. Romana was a fraud schemer or a fantastical dreamer. As will be seen, I find that, fueled by his intelligence and his disjointed and distorted perception, he was a dreamer who believed in his quest - - although I recognize that others who had extensive dealings with him would disagree entirely. Regardless, whether he intended to deceive or not, the result was the same: many people were financially hurt by investing with him.

While some bought into his dreams as massive but realistic opportunities to revolutionize the world, Mr. Romana also invested heavily in his own ventures, to the point of financially ruining himself and his wife. [ 13 ] In the end, often, Mr. Romana’s perception of reality, was not reality. Blinded by ignorance or visions of quick riches, most of his investors or associates went along for the ride. A few, more savvy and experienced in risky start-up technology, clearly understood the risks of their investments and harbour no ill will toward Mr.

Romana. [ 14 ] Lastly, it will be obvious that I take a very different view of the critical evidence than Mr. Romana emphasizes. To accept his conclusions, I would have to accept, through unfounded inferences (i.e. sheer speculation), that many individuals, with seemingly no real connection between each other, somehow plotted Mr. Romana’s downfall through the CBC publications. Most critically, I would have to accept that Ms. Moore utterly and deliberately failed in her ethical and professional standards as a journalist by falsifying material parts of the story or its background materials.

There is no basis in evidence, fact or logic for these conclusions. I categorically reject them; as I do Mr. Romana’s view that the CBC acted with malice. [ 15 ] I find the CBC is not liable in defamation for its publications. Nonetheless, on the evidence at trial, I do not conclude that Mr. Romana intended to deceive for reason of personal financial advantage, although clearly he in fact deceived people, himself included. [ 16 ] Given these general findings, this decision will be relatively brief.

While the evidence and submissions were comprehensive, there is little point in memorializing every issue or point, and the application of defamation law is not complicated in this case. [ 17 ] As a bit of a roadmap, first, I will deal with a brief synopsis of the jurisprudence. I will then move to a brief outline of the publications or story, before addressing key points or themes of the story with particular emphasis on points Mr. Romana complains of. THE LAW OF DEFAMATION [ 18 ] Grant v. Torstar Corp , 2009 SCC 61 , remains the leading case on the law of defamation.

Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States , 2 nd ed., (Toronto: Carswell, 1994), is an important and extensive scholarly work on defamation. [ 19 ] Succinctly, I glean the following key principles from this jurisprudence:

• the threshold inquiry in a defamation action is whether the published words are reasonably capable of a defamatory meaning; • “… common sense governs in the construction of language. The test is objective; it does not depend on the intention of the author or the impression made on the person defamed. The words “must be viewed objectively from the point of view of the reasonable, thoughtful and informed reader”. “The ‘ordinary reader’ ”. ( Brown on Defamation , at § 5:2.

Introduction); • the tort is one of strict liability where a plaintiff must prove: 1. the words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; 2. the words in fact referred to the plaintiff; and 3. the words were communicated to at least one person other than the plaintiff, i.e. they were published.

If proven, the onus shifts to the defendant to establish a defence. ( Grant , at paras. 28 and 29 ); • in Canada, defences include justification (substantial truth), absolute or qualified privilege, fair comment, and responsible communication on matters of public interest; • a defence of justification requires the defendant to proffer evidence showing the impugned words, statement or publication (as the case may be) - the alleged facts - are substantially true ( Grant , at para. 33 ).

As noted in Brown on Defamation , § 1:11 : A defendant may successfully defend an action for defamation if he or she can show that the defamatory publication is true. What is required is not the literal truth of each and every fact in the publication, but only that the whole of the defamatory matter is substantially correct. The justification must meet the gist or sting of the charge.

The defendant will not succeed by showing that the plaintiff engaged in other conduct equally or more reprehensible; nor is it sufficient for the defendant to show that he or she relied on information supplied by someone else, even if the defendant honestly and reasonably believed that information to be true. • as to the defence of fair comment, or statements of opinion, WIC Radio Ltd. v. Simpson , 2008 SCC 40 , remains a key judgment.

The Supreme Court in Grant , summarized the defence as follows (at para. 31): … As reformulated in WIC Radio , at para. 28, a defendant claiming fair comment must satisfy the following test: (

a) the comment must be on a matter of public interest; (

b) the comment must be based on fact; (

c) the comment, though it can include inferences of fact, must be recognisable as comment; (

d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and (

e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. WIC Radio expanded the fair comment defence by changing the traditional requirement that the opinion be one that a "fair-minded" person could honestly hold, to a requirement that it be one that "anyone could honestly have expressed" (paras. 49-51), which allows for robust debate.

As Binnie J. put it, "[w]e live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones" (para. 4). • in determining whether a publication is in the public interest, the judge must scrutinize the publication as a whole, and not focus on the impugned words or passages. Public interest is not synonymous with what interests the public.

While there is no one test, “[t]o be of public interest, the subject matter “must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”: Brown …” ( Grant , at para. 105 ). [ 20 ] While portions of the trial dealt with evidence supporting responsible communication in matters of public interest, I find that it is unnecessary to delve into that defence.

The CBC has made out its defence of justification, and in one limited instance fair comment, with sufficient strength and cogency that it is unnecessary to also address the defence of responsible communication. THE PUBLICATIONS [ 21 ] The CBC in Winnipeg has an investigative journalism team (“the I-Team”) dedicated to public interest stories requiring more examination and research than most daily news stories. Ms. Moore and Ms. Sawicka were part of the I-Team in 2014. They were assigned a lead about Mr. Romana and his gasifier businesses. Their investigation led them to a Winnipeg couple, Ms. Medland and Mr.

Wesner. From there, the story expanded. [ 22 ] In brief, the story told a tale of Mr. Romana being a “globe-trotting” New Zealand entrepreneur who had left many people “in a lurch” over the previous 15 years, after convincing them to invest in his gasifier ventures. Ms. Medland was one such person. As reported in the stories, she fell for his vision, as she found the idea “was very good” and the numbers were “huge”; they would make lots of money and revolutionize the world. She said she lost more than $50,000, her life savings, and was facing bankruptcy. [ 23 ] The story also noted some of Mr.

Romana’s other dealings where people lost money, including a local company that built a demonstration gasifier machine for him, another that did some design work and others who had difficulty collecting on a mortgage. It reported his claim to having PhDs, which could not be verified; he had a criminal record for assault and fraud; and an earlier company he created in New Zealand was illegal, “ensnar[ing]” some 240 investors before being ordered liquidated by the New Zealand Securities Commission (NZSC), after which Mr. Romana “fled”. It also quoted an individual opining Mr.

Romana was “such a believable con man” who “wasn’t at it to succeed” but to “get money”. Finally, in passing, it made reference to him working with an arts group to focus on recovery from mental illness, although his specific illness was not mentioned. [ 24 ] Importantly, before publication, Mr. Romana declined a CBC request to explain his side of the assertions. As such, the

publications went ahead on September 2, 2014 on radio, television and the internet. There was an update on September 3. After that, he requested an interview, which happened on September 11. As a result, only the on-line internet story was revised to add in some of his explanations and comments. That story remains publically available now. The television and radio publications were not amended or replayed. THE PARTIES’ POSITIONS [ 25 ] In general, the CBC asserts the story was a public interest consumer protection story. It was proximate to the events that happened with Ms.

Medland in 2013 and there was a realistic potential that Mr. Romana would continue seeking local investors for his ventures. As well, they point to other articles readily available on the internet of a similar ilk as evidence of his pre-existing reputation, and examples of how he reacted after publication with posts on his on-line blog as evidence of Mr. Romana besmirching his own reputation. [ 26 ] On the other hand, Mr. Romana says there is no public interest in the story and it is mostly fabricated, “an orchestrated litany of lies”, “flooded with malice”.

He points to a number of errors in the publication and background material, including the erasing of numerous live interviews with sources, as irrefutable indicia of fabrication. Further, he asserts that some of those sources took advantage of him when he was particularly psychologically vulnerable; so too did the CBC during examinations for discovery. Ultimately, he says the publication devastated his life as the sting of the publication, through the three mediums, means he is “a long haired n…r who stole all this money”.

THE STING [ 27 ] Considering the totality of the publication, notably the internet story (which has the television clip imbedded in it), I have little hesitation in concluding the publications were reasonably capable of defamatory meaning. Indeed, the CBC does not dispute this, other than to say the

article is more benign than the

interpretation I find it conveys in that, viewed reasonably, the CBC says it does not convey a fraud connotation. I disagree. [ 28 ] On the whole, a reasonable and fair view - the “sting” in defamation parlance - is that Mr. Romana was a con-man using his gasifier ideas as “investor bait” for his ventures. A con-man is slang for “confidence man”; which generally describes someone who uses dishonesty or tricks to deceive or cheat people, usually into giving money. To an ordinary person, these are elements of fraud.

The use of pejorative terms such as his having “fled” New Zealand, leaving investors “in the lurch”, having “short changed” some investors and “ensnared” others, or he was a “con man”, using “bait”, also gives innuendo to the sting in a way that overpowers the more neutral nature of the rest of the report. [ 29 ] I pause to comment that the television report, which is perhaps the most impactful medium, does not by itself have this sting. It does not refer to Mr. Romana’s PhDs, his criminal record, the con-man comment or many of the other aspects the on-line story tells.

Indeed, the essence of the television video clip is “buyer beware”; do not be fooled into something that is too good to be true. Nonetheless, it is the totality of publications that are at issue. As a result, I will address all three mediums of publication, television, radio and on-line internet, as one and simply refer to them collectively as “the publication” or “the report”.

THE ISSUE [ 30 ] Given the publication is reasonably capable of a defamatory sting, it refers to the plaintiff and was published, the issue is whether the CBC has discharged its onus through one of the defences it advanced to escape liability. As noted, and as will be seen, I find the CBC has done so. [ 31 ] I pause to summarily address two grievances Mr. Romana raised about the publication which he believes were slurs intended to blacken the overall tenor of the publications. I preface by observing defamation law is not meant to deal with the subject’s hurt feelings or insult.

It is meant to protect one’s reputation or good name within the community ( Brown on Defamation , at § 4:2). [ 32 ] As to the two points, first, the publication refers to Mr. Romana as a “New Zealand native”. I accept that Indigenous Maori New Zealanders, such as Mr. Romana, would feel deep insult being referred to as a “native”. However, in context of this publication it is not defamatory, nor do I find it was a slur. I accept it meant to convey that Mr. Romana originally hailed from, or was born in, New Zealand, not that he is a native rather than a proud Maori.

Second, reference to him working or hanging out at an art group focusing on mental illness, or the short video clip of his art, or of him talking about dying his hair, were also not slurs or defamatory, despite Mr. Romana’s strong adverse

interpretation. Remarkably, he and one journalist had an emotional, human moment when his cross-examination of her revealed the depth of the hurt he felt resulting from all these comments and some clips of him. Both apologized to each other; she for not predicting these references could be negatively misinterpreted, and he for his anger about it, particularly in post-publication on-line videos and comments he made, and in his behavior, which he came to understand were objectively horrible and most likely to alarm Ms. Sawicka and Ms. Moore. [ 33 ] Lastly, Mr.

Romana also alleged some parts of other CBC interviews, which were never published in any format, were also defamatory. Clearly, without publication, those interviews fall short of the reach of defamation law. I need not address this further. ANALYSIS [ 34 ] I have already set-out the sting of the publication as a whole. I will now address only the more salient aspects of the publication, consistent with Mr. Romana’s main areas of complaint. The aspects are not in order of importance.

Mr. Romana’s Education [ 35 ] The publication refers to Mr. Romana holding a PhD in physics, which he told Ms. Medland he obtained from Texas State University and Israel’s Ben Gurion University. The publication goes on to state that those credentials were denied by both universities. [ 36 ] There is no doubt that the CBC checked with those institutions and that Mr. Romana did not receive degrees from them. Mr. Romana does not deny this, testifying vaguely that he received a PhD in physics from the government of Pakistan. He provided no documentary proof of this.

Further, he says the false reference to these universities was reported in another publication (Mr. McKenzie’s 2006 article), which the CBC relied on and simply recited. The CBC denies this. [ 37 ] I accept the CBC received the PhD information from Ms. Medland and, for the University of Texas information, Darrel Driver, who I consider a credible source, both of whom claimed Mr. Romana personally told them. I accept their testimony which was fair, consistent and wholly plausible in the circumstances. Mr. Driver in particular impressed me as forthright and reliable.

Especially considering his background and their dealings, he is a person who would want to know Mr. Romana’s credentials. [ 38 ] Finally, Mr. Romana conceded in his examination for discovery that he did not have a PhD. However, he submitted this admission was an example of the CBC taking advantage of his mental state; I disagree. Mr. Romana’s Criminal Record [ 39 ] The law treats the publication of allegations of criminal activity or a criminal record seriously.

As noted in Brown on Defamation , at § 4:35: Allegations of criminal conduct are extremely serious and damaging to reputation and actionable per se. “A statement falsely attributing criminality to an individual is defamatory as a matter of law.” … When such a publication occurs, falsity, malice and damages are presumed, and special damages do not have to be proved. The burden then shifts to the defendant to rebut the presumptions. [ 40 ] Part of the CBC publication was that Winnipeg investors had no idea Mr. Romana had a criminal record of assault and fraud.

The CBC has shown both components of this statement are true; Mr. Romana has such a criminal record from New Zealand and Winnipeg investors did not know this. [ 41 ] Mr. Romana’s main argument is that his record was for minor offences, mostly when he was young, and related to his schizophrenia. Further, he states that legislation in New Zealand provided him with a “clean slate”, which meant that the reporting of his criminal record was wrong. Canada does not have similar legislation, but it seems roughly akin to our criminal pardon program.

Finally, he notes that he has no Canadian criminal record and, despite his record, he obtained Canadian residency on a statutory rational that he had rehabilitated ( Immigration and Refugee Protection Act , S.C. 2001, c. 27 ; s. 36(3) (c)) . [ 42 ] While Mr. Romana may be correct about the nature of his criminal record, nonetheless it exists. His last conviction was for fraud in 1988, when he would have been in his 30s.

As well, I do not find, based on his evidence or my review of the New Zealand legislation that he was granted a clean slate status vis-à-vis his criminal record, nor that such a designation would in any event prohibit the CBC from publishing it. [ 43 ] The statement about his criminal record was accurate, relevant and stated simply, without emphasis. Its inclusion in the publication is not a basis of defamation. Mr. Romana’s Gasification Ideas/Machines [ 44 ] The essence of the story involved Mr.

Romana repeatedly trying to develop a commercially feasible gasifier, using waste as the fuel source, to produce electricity on a viable scale. This concept, in various iterations, over many years, utilizing several companies he set up or was involved with, was described in the CBC publications as “investor bait” to draw in unwitting investors. [ 45 ] Mr. Romana takes the position that his technology was viable, as far back as 2005, when he took a demonstration unit to Washington D.C. Through to the end of trial, he maintained it is viable and has not been proven otherwise.

As well, he claims to have had multi-million dollar commercial contracts which were thwarted by bad media coverage at the time. He asserts the CBC publications are more of the same. [ 46 ] The CBC had Mr. Romana’s documentary work-product reviewed by an eminently qualified expert, Dr. Eric Bibeau. His expert opinion was that nothing he reviewed demonstrated that any of Mr. Romana’s ideas or gasifier machines were viable. Despite Mr.

Romana succeeding in having built several machines, and run them for very short times, comprehensive, reliable and necessary data was completely lacking to show the machines truly operated as his theories suggested. Dr. Bibeau found the concepts elementary and undeveloped. He opined that if Mr. Romana achieved what he alluded to, what he talked of, he would have discovered the holy grail of gasification, which he did not. [ 47 ] Given Dr. Bibeau’s opinion, and other material the CBC gathered to ensure the story’s accuracy, the CBC’s publications referring to Mr.

Romana’s gasifier machines, ideas and businesses as failures was entirely fair and accurate. To be clear though, this conclusion must be understood in the context of many researchers around the world, spending hundreds of millions of dollars to crack similar challenges, to find the holy grail of commercially viable gasification for electrical energy output. The distinctions between those projects and Mr. Romana’s ventures, lies in his distorted view of his ideas, work, success and visions.

At a minimum, his visions were grandiose exaggerations that many naïve people believed, ignorant of the limits of gasifier technology and related risks of investing in it. In saying this, I acknowledge that others who had first-hand experience with Mr. Romana’s gasification goings-on, reasonably, would be less charitable than this

interpretation. [ 48 ] As to the Washington D.C. demonstration, Mr. Romana is correct that the CBC publication wrongly implied that the machine was not turned on at all, by omitting to explain that while it was not turned on as scheduled, it was in fact turned on later. Nevertheless,

this omission by the CBC reporting is inconsequential to Mr. Romana’s defamation claim, either on its own or when viewed globally with the entire publication. I find this as a result of Dr. Bibeau’s evidence, and because none of Mr. Romana’s machines performed the way Mr. Romana said they could. [ 49 ] Further, I do not accept that a subsequent 2008 Letter of Intent with Washington D.C., or any other contracts Mr. Romana claimed to have had with any other entity to commercially operate gasifier machines, were in fact binding commitments for millions of dollars. To be blunt, that is misconstrued wishful thinking.

For example, the Washington D.C. Letter of Intent clearly states it is for a “Feasibility Study” to implement five itemized outcomes of gasification. For whatever reasons, that did not happen; all of which is collateral to this trial, as it had nothing to do with the 2014 CBC publication. Ms. Medland [ 50 ] Ms. Medland was the central Winnipeg character in the story who says she invested twice in Mr. Romana’s ventures, lured by his ideas and huge profits. Mr. Romana denies Ms. Medland invested as she claims.

In the main, the CBC has satisfied me the reporting of her story within the publication was fair and accurate. [ 51 ] Critically, I am satisfied that in one form or another, whether bank draft, cash or combination, Ms. Medland went into business (Hai Power International) with Mr. Romana in 2013 to develop steam engine gasifiers, investing her life savings in upwards of $50,000. Not only do some bank records support this assertion, but so too does an agreement they signed in July 2013, where it is expressly acknowledged she would “provide $50,000 in start up cash”. Later, in August 2013, Mr.

Romana arranged for a Manitoba numbered company for Ms. Medland. He also signed a lease on behalf of that company for space on Donald Street in Winnipeg. In August 2013, a Hai Power International business plan, refers to its address on Donald Street and sets out Ms. Medland’s and Mr. Wesner’s roles. Also, on October 10, 2013, Mr. Romana wrote to Ms. Medland’s brother, advising him that she “has a small share in my energy company” [note the present tense]. In January 2014, he issued a Hai Power International invoice that referred to the numbered company. Finally, I accept Ms.

Moore’s testimony that in June 2014, at a coffee meeting he had with Mr. Wesner, Mr. Romana admitted Ms. Medland was owed about $35,000. All of these facts belie Mr. Romana’s assertion that Ms. Medland’s part of the story is untrue. [ 52 ] Having noted all of this, I concede the evidence is confusing about her assertion she lost $10,000 a decade earlier in another of Mr. Romana’s ventures. Mr. Romana presented to court an apparently uncashed 2005 cheque from her to him for $10,000 USD, saying it proved he did not actually receive the $10,000. Ms. Medland’s evidence on the point is unhelpful.

Yet, in their July 2013 agreement, Mr. Romana acknowledged a prior $10,000 cash investment. In the end, it is an unresolved oddity in the case but of no real consequence to my material findings. [ 53 ] Finally, as a consumer protection story, it is also important to note that the story clearly and unambiguously addressed the pitfalls of investing in something an investor knows nothing about, particularly inexperienced regular people who not only cannot afford to lose their investment but ignore warning signals and risk. The publication reported Ms.

Medland saying she bought into his dream and that it was an expensive lesson. More Winnipeg Investors [ 54 ] “ More Winnipeg Investors ” is a subheading in the publication dealing with a few individuals who loaned money to Mr. Romana by securing it with a mortgage(

s) against his wife’s home. In and of itself, this portion of the publication is relatively benign but may, to some extent, take on a more damaging air given the publication as a whole. While recognizing this, I nonetheless find the reporting to be fair and accurate. I do not find mention of his wife in the publication as defamatory to her or him. [ 55 ] As an aside, because it is important to Mr. Romana to have the air cleared, I find, on the evidence, his wife was an innocent bystander who had no role, promoting or otherwise, in his ventures.

She simply allowed astute businessmen/investors’ mortgages on her home, which she ultimately lost as a result. BSD Solutions Ltd. Lawsuit [ 56 ] The publications reported that Mr. Romana had contracted with BSD Solutions Ltd. (BSD), a Winnipeg company, to build a gasifier machine for the 2005 Washington D.C. demonstration. It further stated that BSD obtained a court judgment against Mr. Romana for over $600,000 for unpaid bills related to its work, and that the judgment would likely never be paid. This is part of the “investors in the lurch” theme. [ 57 ] Mr.

Romana’s position and testimony was that BSD obtained a judgment only because he agreed to it, to help BSD with some vague, seemingly shady tax purpose. Mr. Romana disputed that he in fact owed any money to BSD. [ 58 ] Darrell Driver was the owner and president of BSD at the time. He testified that the claim was entirely proper, legitimate and related to work his company had done on the gasifier machine. He denied Mr. Romana’s assertions about the nature of the judgment. [ 59 ] I reject Mr. Romana’s assertions and fully accept Mr. Driver’s testimony on the point. Mr.

Driver’s evidence was straightforward, detailed, reasonable and it made sense. On the other hand, Mr. Romana’s evidence seemed far-fetched, without logical or persuasive attributes. His evidence fit a pattern of incredible stories, explanations or conclusory opinions that permeated Mr. Romana’s testimony, assertions on cross-examination and submissions.

New Zealand Securities Commission (NZSC) [ 60 ] The CBC publication reported on a 2010 experience Mr. Romana suffered at the hands of the NZSC. The CBC publication stated that the NZSC declared his gasification company illegal, ordered it liquidated, and issued a public warning that people should not invest in the company until it complied with securities legislation. The CBC stated that more than 200 investors were out their money. It restated comments of the liquidator. [ 61 ] Even though NZSC found his company was illegally selling shares to the public, Mr.

Romana maintained first, that shares were only to be given or sold to family members (which he claimed was legal), or second, were sold to members of the public by rogue employees. He pointed to his testimony before the NZSC and wording in one of their Orders as proof of the point. I read the Order as no more than acknowledging his position, not agreeing with it. [ 62 ] The CBC demonstrated through a first-hand New Zealand witness that, in fact, Mr.

Romana was involved with overseeing the sale of shares to the public, and in developing and distributing prospective financial information which the NZSC framed as likely to deceive, mislead or confuse. This became the basis for the NZSC issuing a public warning, which in turn worked its way into the CBC publication. And, in fact, over 200 investors were out their share investments. [ 63 ] The CBC publication is substantially true and fair. I agree with Mr.

Romana the publication erred in stating that the NZSC ordered his company liquidated, when in fact it was the High Court of New Zealand and for a different reason. Nevertheless, much more damning was that the NZSC declared the company illegal because of its share offering and loose financial representations, which was the critical issue that caused the company to fold. Further, Mr. Romana’s concern about the liquidator not being able to find him is also relatively immaterial to the story. Finally, I accept the CBC did not show “some prominent Mohawk businessmen” were also short changed.

Individually or cumulatively, these shortcomings in the CBC’s justification defence, do not affect the result, as what the CBC has proven vastly overwhelms. Doug Williams [ 64 ] The CBC publication referred to Mr. Romana’s former associate, Doug Williams, quoting him as saying Mr. Romana’s ideas were “investor bait”, that he was “such a believable con man”. Since publication, Mr. Williams died. [ 65 ] During the cross-examination of Ms. Moore, Mr. Romana pointed to a document from about 2001 where Mr. Williams extolled Mr.

Romana’s work on gasification as proof “his friend” would not have said what the CBC published. He also pointed to the CBC no longer having a recording of its interview with Mr. Williams, and the misspelling of Romana in some of Mr. Williams’ emails. He thus accused the CBC of outright fabricating comments it attributed to Mr. Williams. Not surprisingly, the CBC denied his assertions. [ 66 ] I accept the CBC accurately and fairly published Mr. Williams’ comments and that documents they relied on in evidence, to show Mr. Williams soured on Mr. Romana after 2001, were documents that originated from Mr. Williams.

Mr. Romana’s assertions to the contrary are illogical and ignore other evidence. It is nonsensical that Ms. Moore would fake the story and all the related documents and detail relied on by them. While there is no doubt the CBC record keeping was not perfect, and the publication was not without some minor flaws, I nonetheless was impressed by the candor, explanations and testimony of all the CBC witnesses, including Ms. Moore and Ms. Sawicka. [ 67 ] That said, the comments attributed to Mr. Williams are in large measure the heart of the sting of the publication, particularly the con man comment. Mr.

Williams is no longer available to give first-hand testimony and comments appear to be conclusory opinions or comments based on his experiences with Mr. Romana. In this sense, the defence of fair comment comes into play. [ 68 ] I set out the test of fair comment earlier and the commentary from Brown on Defamation respecting allegations amounting to criminal activity. [ 69 ] Without belabouring the point, I am satisfied the CBC has proven the elements necessary of this defence for comments attributed to Mr. Williams.

Critically, on the whole of the evidence presented, the facts of which I have accepted and mostly reviewed already, I have no doubt that any informed person could honestly hold the same opinion as Mr. Williams, and come to that conclusion based on the facts showing the gist of the story is true. In order to advance his gasifier ventures, over time, Mr. Romana repeatedly deceived people into believing his fantastical dreams and induced them to invest or give money to him for that purpose. Mr. Romana made false representations that his gasifier ideas, and the machines themselves, were commercially viable.

At a minimum he was reckless or careless whether the representations were true or not. They were designed to induce people to invest, and they did invest. The NZSC episode makes this clear, as does the dealings with Ms. Medland and testimony of others. Mr. Romana gained the confidence of many people to invest in his businesses, which objectively was based on deceit. On the civil test of a balance of probabilities, I find that at times, depending on his mental state, he also did so with subjective intent. [ 70 ] Despite this conclusion, I am not satisfied that Mr.

Romana did so for personal financial advantage, as inferred by Mr. Williams’ comments. He certainly personally benefited in some ways, but within the pursuit of his quest. Given all the bits and pieces of evidence presented covering the lengthy time Mr. Romana was involved with gasification technology before the 2014 publication, it is most likely that he fooled people, as he fooled himself, into believing his grandiose, unworkable ideas would turn straw into gold. That said, it is easy to see that others looking at the facts as they knew them would consider the sheer audacity and persistence of Mr.

Romana’s claims and behavior, in the absence of any true success, as demonstrating personal gain as the motive. [ 71 ] Ultimately, I am satisfied the defence of fair comment has been made out and the CBC has rebutted the presumptions attendant to allegations of criminal behavior.

Miscellaneous [ 72 ] I end my analysis where I started; by saying that I am not attempting to deal with every point or argument. I recognize that Mr. Romana has forcefully put forth other positions and

interpretations of evidence, on other matters, for which he finds an underhanded, devious motive. Suffice it to say, if I agreed with him, or found merit in any of those areas, I would have said so. To the extent that I have not touched upon one of these areas, it should be understood I nonetheless disagree with his position. CONCLUSION [ 73 ] In conclusion, I am satisfied that the CBC has demonstrated the publication which Mr. Romana complains is defamatory, is substantially true and, respecting Mr. Williams, fair comment. They have rebutted the defamatory fraud sting of the publication.

The defences of justification and fair comment are made out. Mr. Romana’s claim fails. [ 74 ] I will hear the parties on costs. ________________________ J.