Defamation / Reputation
Prosecutor v Elżbieta Hołoweńko and Marcin Krawczyk
Closed Contracts Expression
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The Court of Queen’s Bench in Alberta, Canada refused to set aside a notice of default against an individual who had posted a defamatory video on Facebook and who had not filed a Statement of Defence in response to the defamation suit brought against her. The Court dismissed the individual’s arguments that she had been intimidated by the legal process and that she had defences of truth and qualified privilege against the claim of defamation, holding that she had made no effort to ascertain the truth of the video’s claims and that a Facebook post is not covered by qualified privilege. The Court stressed that “irresponsible social media posts” can lead to legal consequences and that “[c]ontrary to the belief of many, the Rule of Law applies to the internet … [i]t is not some kind of untamed frontier” [para. 1].
On September 5, 2018, Corey-Ann Pruden Morin posted a video to the Facebook page she ran, Métis Voices of Alberta, which featured Margina Wood, an elder of the Fort McKay Métis community. The video made defamatory allegations against the Fort McKay Métis Community Association (FMMCA) and its elected president Ron Riel Quintal, who was standing for the provincial presidency of the Métis Nations of Alberta Association (MNAA) – an organization similar to the FMMCA but on a provincial level.
The FMMCA is a not-for-profit organization whose stated purpose is the “advancement of the interests of the Métis people in the Fort McKay area through the provision of social housing and health, educational and cultural programs for its members” [para. 7]. The FMMCA had established a Community Trust to fund its initiatives, which included a program of converting individually owned homes into community housing to improve the housing situation while ensuring that they remained in the possession of the original occupants [para. 8]. Wood had been a board member of the FMMCA when the FMMCA had established this housing initiative.
Morin styled herself as a social activist and described the Métis Voices of Alberta Facebook page as reporting and commenting on issues of interest to the Métis community in Alberta. The page was public but Morin was the main contributor to the page which had 612 “friends” [para. 16]. In the video Wood complained about the social housing programme, electoral impropriety in the last FMMCA election and a cover-up of sexual abuse within the FMMCA [para. 14]. In the post that accompanied the video Morin had written that Wood had had her home taken because she was illiterate and that she had been “swindled” by the FMMCA. By the time these legal proceedings commenced there were 117 comments on the video and it had been “shared” 87 times [para. 16].
Quintal instructed counsel to send ‘cease and desist’ letters to Morin and Wood which indicated that should the video not be taken down before October 11, 2018 he would initiate legal proceedings. Quintal maintained that there was no truth in Wood’s allegations. Morin did not take the video down, and instead continued to post on the Facebook page criticizing Quintal’s legal action, accusing him of bullying and questioning his fitness for provincial office [para. 18]. She repeated Wood’s claims in the video that Quintal had been involved in covering up a sexual abuse scandal by paying women CA$10 000 to stay silent about the alleged assault [para. 18]. Neither Wood nor Morin accused Quintal of committing the sexual assault but only that he had arranged the payments to silence the women alleging the assault.
Quintal lost his provincial election bid, and he attributed this loss, at least in part, to Morin’s posting of Wood’s video and what he described as a “campaign of character assassination and disinformation waged against him” [para. 19].
On September 20, 2018 Quintal sent Morin a Statement of Claim suing her for defamation and informing her that she had twenty days to file a Statement of Defence in response. After not receiving a response, on September 28 Quintal informed Morin that they would extend the deadline for response to October 5, 2018 but that should she not respond they were entitled to note her in default and the Alberta Rules of Court permitted him to proceed with the defamation claim without her [para. 21].
Morin did not respond to either of Quintal’s letters but it later emerged that she had spoken to a lawyer friend who told her she had been sued for defamation, she had sought and obtained free legal advice that truth was a defence to defamation and had learnt that Legal Aid was available to someone who could not afford legal fees [para. 22].
On October 12, Morin contacted Quintal’s legal representatives and informed them that she was waiting for police records which would substantiate her claims and that she requested time to consult a lawyer. On October 16, Quintal’s representative informed Morin that she had been noted in default on October 11 and recommended that she consult a lawyer immediately [para. 24].
Morin launched an application in the Court of Queen’s Bench in Alberta for the noting in default to be set aside.
Judge Douglas R. Mah delivered the judgment of the Court of Queen’s Bench of Alberta. The issue before the Court was whether Morin was entitled to have the note in default (issued against her as a result of her failure to respond to Quintal’s defamation suit) set aside.
Morin argued that she had not filed her response to the defamation claim in time because she had been the primary caregiver for her mother who was undergoing treatment for cancer and that she had been intimidated by the legal process [para. 33]. In setting out her defence to the main defamation suit, Morin indicated that she would rely on the defence of truth and of qualified privilege. Morin argued that she was waiting for police reports which would assist her in demonstrating the proof of the allegations and that as she operated the Facebook page “for the express purpose of allowing members of Alberta’s Métis nation to exchange views on matters of mutual interest” she was protected by the defence of qualified privilege [para. 52]
Quintal maintained that the video was defamatory because it stated that Quintal had swindled Wood out of her house, that he had engaged in election fraud and that he had engaged in bribery to cover-up sexual abuse [para. 28].
The Court noted that the law of defamation is well established in Canada and referred to Grant v. Torstar Corp. 2009 SCC 61 which held that “a communication is considered defamatory if it lowers the reputation of the subject person in the eyes of reasonable members of the community” [para. 30]. The Court also noted that the case law “established that the failure to defend an action, resulting in a noting in default, is a deemed admission on the part of the defendant of the plaintiff’s claim” [para. 31].
The Court referred to Don Reid Upholstery Ltd v. Patrie (1995) 173 AR 233 (QB) which had held that there were three factors to be considered when determining whether to set aside the deemed admission: whether there is a satisfactory explanation for the default, where there was a prompt set-aside application and whether the defendant had an arguable defence [para. 32].
In ascertaining whether Morin had a satisfactory explanation for default the Court noted that Morin’s caregiving responsibilities had not interfered with her own electoral campaigning or from running the Métis Voices of Alberta Facebook page. In addition, the Court said that Morin had “ample opportunity to obtain legal representation” in time to file a response, and that there had been no change in her circumstances which had enabled her to obtain the legal representation that she eventually did when she learnt that she was in default. The Court stated that “[i]t was only when she learned that her situation had worsened … that she decided to take any steps” [para. 35]. The Court also held that Morin was not intimidated by the legal process because she had taunted Quintal and the FMMCA on the Facebook page, “daring them to pursue legal action against her” and had acknowledged when cross-examined that “she was not afraid of the legal process when she posted those taunts” [para. 36]. In addition, the Court noted that she was an “educated person” and was aware of the suit against her and the deadlines for her response. Accordingly, the Court concluded that there was no satisfactory explanation for her default [para. 37].
The Court accepted that Morin had brought the application to set aside the deemed admission within a reasonable time [para. 38].
The Court examined Morin’s proposed defences and referred to Raymond E. Brown’s book The Law of Defamation in Canada which stated that “[a] person cannot escape liability by prefacing his or her accusations in the form of rumours or reports originally circulated by someone else … [i]t will not avail a defendant to show that he honestly and reasonably believed in the truth of his assertions” [para. 42]. Quintal had made reference to Wilson v. Switlo 2011 BCSC 1287 in his submissions, arguing that “belief in a statement does not render that statement true, nor can it form the basis of the defence of truth in a defamation action”. The Court noted that “[a]s a matter of logic and common sense, the mere belief in the truth of something, no matter how honestly or fervently held, does not make it true” [para. 43]. The Court held that it accepted that Morin believed Wood’s allegations but noted that Morin had not provided any facts that would support this belief as a “triable defence of truth” [para. 44]. Here, the Court stressed that in these types of applications it is not sufficient for the defendant to merely assert that they have a defence: the “Court must evaluate whether there is a triable defence and can only do so if there are facts put forward, which if proven at trial, might well establish the defence” [para. 45].
The Court acknowledged that Morin had indicated that she was waiting for police reports in respect of the alleged sexual assault, but commented that these documents could not prove the existence of bribery to cover up any sexual assault and that, in any event it was not established that Wood herself knew whether the assault had actually happened [para. 46]. The Court commented that information related to the community housing program would have been easily accessible and that Morin had not provided any information to justify her claim that Quintal had swindled Wood out of her house [para. 47]. The Court referred to Sidorsky v. SFCN Communications Ltd 1994 CanLii 9042 (ABQB), which had noted that “the pejoratives ‘swindle, scan, rip-off, flim-flam, duped, hoodwinked, fleeced, misrepresentation’ all denote a scheme to deceive or deprive another wrongfully of their money or property” [para. 49], and held that Morin had provided no facts to demonstrate that Quintal had deceived, and therefore “swindled”, Wood [para. 50].
The Court accepted that Morin’s indication that she was relying on a defence of qualified defence was sufficient for it to consider whether “there is, for the purposes of this application, an arguable defence based on qualified privilege” [para. 52]. With reference to Banks v. Globe and Mail Ltd 1961 CanLii 6 (SCC)  SCR 474 and Hill v. Church of Scientology of Toronto 1995 CanLi 59 SCC  2 SCR 1130, the Court noted that “[t]he common law defence of qualified privilege arises where the maker of a defamatory statement has a legal, public or social duty to communicate the information in question and the recipient has a corresponding valid duty or interest in receiving it” [para. 53]. The Court stressed that the “reciprocity is essential” and that the privilege is attached to the act of communication rather than the words used [para. 53].
The Court quoted from Kent v. Martin 2016 ABCQ 314 which had held that the threshold for qualified privilege is high and that the press cannot utilize this defence because the media communicates information to the public at large and not a specific group with whom it has a personal relationship. In the present case, the Court noted that the Facebook page was public, that Morin had encouraged followers to share Wood’s video as widely as possible and that Morin herself had stated that 22, 300 people were sharing the video [para. 55]. The Court also referred to Barrick Gold Corp v. Lopehandia 2004 CanLii 12938 (ONCA) which had emphasized the instantaneous nature of internet communications and how the speed with which information can be shared “lends credence to the notion that ‘the truth rarely catches up with a lie’.” [para. 56]. The Court concluded that “[it] was impossible for Ms. Morin to establish that she had a duty to publish unflattering statements about Mr. Quintal and the FMMCA to an incalculable number of unknown persons or that those untold persons had a corresponding duty or interest in receiving the statements” [para. 57], and that “the defence of qualified privilege cannot possible succeed in this case” [para. 54].
The Court held that Morin “deliberately or at least recklessly, published defamatory statements regarding Mr. Quintal and FMCCA” [para. 58], and that it would not exercise its discretion to set aside the noting in default [para. 59]. In the judgment the Court emphasized that the internet and social is subject to the rule of law: it began the judgment by noting that “[c]ontrary to the belief of many, the Rule of Law applies to the internet … [i]t is not some kind of untamed frontier”, and that “[t]here will be circumstances where adverse legal consequences attach to irresponsible social media posts.” [para. 1].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court of Queen’s Bench of Alberta emphasized that the law of defamation extends to defamatory posts made on Facebook, and equated public Facebook pages to media publications in holding that the defence of qualified privilege – which requires a relationship between the giver and receivers of information – does not apply to Facebook pages.
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