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Gorham v. Behm

Closed Expands Expression

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication, Written speech
  • Date of Decision
    October 23, 2020
  • Outcome
    Decision - Procedural Outcome, Dismissed, Decision Outcome (Disposition/Ruling), Judgment in Favor of Defendant
  • Case Number
    SC200001558550000
  • Region & Country
    Canada, North America
  • Judicial Body
    First Instance Court
  • Type of Law
    Civil Law
  • Themes
    Defamation / Reputation
  • Tags
    Libel, Honor and Reputation, Public Interest

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Case Analysis

Case Summary and Outcome

The Superior Court of Justice of the Ontario Small Claims Court dismissed a libel action by competitive ringette coaches against the parents of a player in respect of an email they had written to the local ringette community criticizing the coaches and detailing their child’s upsetting experience. The issue began when the parents’ daughter was keen to do both competitive dance and competitive ringette. Her coaches opposed this which led to various conversations and decisions by them that upset the girl. The family attempted to transfer to another ringette league, but their request was refused by their current league. These incidents prompted the parents’ email to the league and local associations. The email recounted the events and described the coaches as bullying and intimidating. The coaches found these descriptors libelous and raised a claim. Justice Kevin B. Phillips concluded that the coaches’ action should be dismissed. Specifically, he ruled that the parents had proved their email was in the public interest of the local ringette community, and the coaches had not proved that the harm they suffered was sufficiently serious so that the public interest in continuing the proceedings outweighed that in protecting the parents’ expression.


Facts

The plaintiffs in this case were Barry Gorham, Colleen Hagan, Carrie Lindsay, Sidney Catlin, and William Hubbs, the coaches of a competitive ringette team. The defendants were Daryl Behm and Vesna Kondric, parents of a 15-year-old girl who played on the team.

On December 4, 2019, the defendants wrote an email to the West Ottawa Ringette Association (WORA) and copied it to “essentially every ringette association around” [para. 4]. The email outlined the defendants’ perspective on why their daughter had to leave her ringette team. The plaintiffs were not directly identified, but it was “clear amongst the relevant community who [the defendants] were referring to” [para. 4].

According to the email, a conflict arose in the beginning 2019-2020 ringette season over the daughter’s desire to do both competitive dance and competitive ringette. The coaches were not pleased that she would miss some practices as a consequence. Four of the adult coaches had taken the girl into a private room to discuss the problem and “apparently question[ed] her commitment to the team” [para. 5]. The girl purportedly felt intimidated by the “four on one dynamic” [para. 5] and left the meeting distraught.

This tension was worsened by subsequent events. Pursuant to the email, the girl had been disciplined for questioning a coaching decision and her ice time had been arbitrarily limited, being benched in ways that “did not seem fair” [para. 6]. The defendants sought to move their daughter into another league, and they found a new coach that was accommodating of both her passions. However, whilst her current coaches did remove her from the roster, the league refused to grant the change so as to prevent her from competing against them. Thus, the defendants’ daughter left the team and never played ringette again.

The 7 single-spaced page email recounted these events. It was predicated on the daughter’s version of events, and the tone of the email was one of  “disappointment and frustration” [para. 8] about their daughter being pushed out of a sport she enjoyed. Specifically, the email claimed that she was “intimidated” and “bullied” by the coaches.

These opinions were the subject of the plaintiff’s dispute. Alleging the email was defamatory and libelous, the plaintiffs raised an action pursuant to section 137.1 of the Courts of Justice Act, R.S.O. 1990, C. C. 43. They sought damages of $35,000.


Decision Overview

Justice Kevin B. Phillips of the Superior Court of Justice of the Ontario Small Claims Court sought to determine whether the libel action ought to proceed based on the public interest elements of the expression in question and the sufficient seriousness of the harm allegedly suffered by the plaintiffs.

The plaintiffs contended that the disseminated email was defamatory and libelous. They did not believe the characterizations were correct and felt “vilified” [para. 10], especially given that they were volunteer coaches and had personal and professional reputations to maintain.

In terms of the relevant legal principles, the Court agreed that the circumstances of the case were appropriate to apply section 137.1 of the Courts of Justice Act which dealt with “Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest”. The Court arrived at two questions crucial to deciding the current case. Firstly, had the defendants established on the balance of probabilities that the proceeding emanated from an expression they made which was related to a matter of public interest? Secondly, if the first question was answered in the affirmative, had the plaintiffs demonstrated that the harm they suffered from the defendants’ expression was sufficiently serious that the public interest in letting the proceeding continue outweighed the public interest in protecting the expression? If the latter question was answered in the negative, then the action would not proceed.

Regarding the first question, the Court answered it in favor of the defendants. Overall, the evidence showed that the group of people involved comprised a community that cared deeply about girls’ sport and ringette. It involved a “power structure, along with policies, rules, decision-making and enforcement” [para. 14] that furthered this interest. The Court noted how instrumental freedom of expression was in this context. Specifically, how the interchange of ideas “generat[ed] fruitful public participation in matters of shared interest” [para. 15] in order to cultivate vibrant communities and the “collective good” [para. 15]. Given this backdrop, the defendants’ email epitomized the public interest of the first question. The first paragraph in particular highlighted that the purpose of the email was to raise awareness in the community and protect other children from similar treatment, so that their experiences were bettered. Such a theme was repeated throughout the email as a learning lesson.

The Court thus found that the defendants were “motivated to express themselves with a view to communicating with a community they were part of in hopes of bringing about positive change to that community” [para. 18]. The email consistently returned to this motivation and it was deemed reasonable, especially since it was expected that a sports organization would welcome feedback from dissatisfied players. As a result, the defendants were expressing themselves “on a matter of public interest in all the circumstances” [para. 18], affirming question one.

Regarding question two, the Court began by noting that the email did not identify the plaintiffs and only addressed them in “a collateral way” [para. 20]. Since the email was mainly about the league’s decisions, the plaintiffs were “hardly mentioned” [para. 20]. Likewise, they were referred to in the collective, allowing for “a safety in numbers” [para. 20] that mitigated the effect of any reputational injury as compared to claims of wrongful conduct against an individual. The Court also outlined that, whilst the email was filled with “subjective feelings” [para. 21], the defendants’ biases were based on detailed facts that were clearly set out. In other words, there were no “unexplained assertations made in a vague or indirect way” [para. 21].

All in all, the Court noted that it was important to highlight these points because the alleged offenses themselves were “pretty small potatoes” [para. 22]. Though unwise, the four on one meeting was deemed “hardly a high crime” [para. 22] – the coaches “were of mixed ages and genders and were familiar faces” [para. 22] and the girl was 15. No reasonable person would have found the coaches’ conduct “unduly concerning” [para. 22]. Similarly, it was not surprising that the coaches would discipline the girl after she talked back regarding a coaching decision or that she would suffer an unequal allocation of ice time in the setting of competitive sports. Altogether, though the events seemed upsetting to the defendants when taken together, the negative assertations about the plaintiffs actually did not amount to anything offensive and were merely “a series of unintended consequences” [para. 24].

In terms of the plaintiffs’ concern over the specific assertions of “bullying” and “intimidation”, the facts underpinning those opinions were considered to be available “for all to see” [para. 24]. The Court opined that any recipient of the email would find the claims empty and offset by the perception that the authors’ opinions were “far more emotionally driven than based in fact” [para. 24]. Consequently, it was unlikely that any reader of the email would think anything less of the plaintiffs as a result.

In contrast, there was “considerable public interest” [para. 26] in protecting the defendants’ expression. The Court observed that there was a community interest in the email’s content to ensure that the decision-making of the WORA’s hierarchy did not have “unintended negative effects” [para. 27] on any player or their families who were on the receiving end of their authority. The refusal to permit the defendants’ daughter to play in another league was an example of such a decision. The Court believed that feedback from families was beneficial to the “powers that be” [para. 28] and for greater community discourse, especially between those on both sides of a decision. Ultimately, this was the “value of freedom of expression on matters of public interest” [para. 28].

Thus, the Court found that the plaintiffs failed to prove that the harm they suffered from the defendants’ expression was sufficiently serious so that the public interest in allowing the proceeding to continue outweighed the public interest in protecting the expression. In accordance with section 137.1 of the Courts of Justice Act, the action was dismissed.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

This case expands expression because the Court found that the public interest in protecting the defendants’ expression indeed outweighed the public interest in continuing the libel proceedings. In particular, the harm suffered by the plaintiffs was not sufficiently serious, and the defendants’ expression related to matters of public interest.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • Can., Courts of Justice Act (1990), sec. 137.1.

    The Court agreed that the circumstances of this case were appropriate to apply s.137.1 of the Courts of Justice Act which was tailored toward “Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest”.

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Official Case Documents

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