The Yukon Court of Appeal has ordered a new trial for two Dawson City women, Susan Hermann and Audrey Vigneau, accused in 2019 of defaming Whitehorse couple, Angela and Michael Senft. (Crystal Schick/Yukon News file)

$800k Dawson defamation decision overturned

Court of Appeal orders new trial for two Dawson City women accused of defamation

The Yukon Court of Appeal has ordered a new trial for two Dawson City women accused of defaming a Whitehorse couple.

Justice Daphne Smith issued her 32-page written decision on March 27, with Justices David Harris and Karan Shaner agreeing with her reasons.

Angela and Michael Senft pursued a civil case against Susan Hermann and Audrey Vigneau beginning in 2018, alleging that the two women defamed them over social media and a publication distributed to Dawson mailboxes.

These posts originated after the Senfts friendship with Daniele McRae, a Dawson senior, deteriorated. McRae, who died on July 20, 2019, was also friends with the defendants. The Senfts were added to McRae’s property on the Dome Road. They were added when the parties were still friendly.

Once the friendship fell through this became disputed. The Senfts and McRae entered into a lawsuit over the property but that was resolved outside of court.

Vigneau and Hermann claim they were trying to help McRae in that legal dispute and distributed materials to Dawsonites alleging, among other things, that the Senfts were taking advantage of McRae.

A trial for the Senfts’ lawsuit against the two women took place in January 2019 by judge and jury.

The jury ruled that the two women defamed the couple and awarded the Senfts more than $800,000 in damages.

Hermann and Vigneau appealed this decision.

The main issue on appeal were the instructions given to the jury by the trial judge Justice Ron Veale on malice.

The two women argued, through their attorney David Sutherland, that Veale failed “to determine whether the evidence adduced at trial raised a probability of malice, before instructing the jury on the question of malice.”

They add that the judge was bound by law to render this ruling before the jury could consider the issue of malice.

They expanded this further, arguing that the jury was asked to decide malice before determining if the women’s posts could be protected as fair comment. For the jury to rule out fair comment, the Senfts would have had to prove that Vigneau and Hermann had made their posts with malice.

The last argument for appeal stemmed from Veale’s instructions on damages. They argued the judge did not properly inform the jury of the governing principles on awarding compensatory, special and punitive damages.

Smith felt these were compelling grounds and that the appeal should be allowed.

She wrote that she felt the issue of malice should have been put to the jury.

She felt there were errors in the jury charge as well.

She said, as per case law, a trial judge must make a ruling that the evidence shows a probability of malice before the jury can consider this issue. She concluded that Veale should have made this determination before sending the matter to the jury.

“His failure to do so constituted an error of law reviewable on a standard of correctness,” Smith said.

She added that Veale recognized this error after the trial was over and properly declined to do a detailed review of the evidence to remedy the situation. She felt the Court of Appeal could not perform the review of the evidence either.

She said the only remedy is to order a new trial and set the awarded damages aside on this issue alone.

On the issue of defeating the defence of fair comment, Smith explained the plaintiff must prove that express malice was the dominant motive in the defendants’ actions.

She pointed out the jury was not asked to determine if Hermann and Vigneau had met the threshold of fair comment.

She explained the jury was directed to answer the question of express malice without considering the fair comment defence. She said this is an error of law.

On the question of damages, she pointed out that the awards were the seventh highest award in Canadian court history.

She said Veale properly instructed the jury on assessing compensatory, aggravated and punitive damages. That said, his charge did not outline the proper principle to assess special damages.

“Some instruction, in my view, was required to guide the jury in the assessment of those damages,” Smith said. “In view of my proposed disposition on the liability issues, I would decline to address the issue of whether the jury’s award of damages was unreasonable or perverse.”

Contact Gord Fortin at gord.fortin@yukon-news.com

Yukon courts

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Dr. Brendan Hanley, Yukon’s chief medical officer of health, speaks to media at a press conference about COVID-19 in Whitehorse on March 30. The Yukon government announced three new cases of COVID-19 in Watson Lake on Oct. 23. (Crystal Schick/Yukon News file)
Three new COVID-19 cases identified in Watson Lake

The Yukon government has identified three locations in town where public exposure may have occurred

Asad Chishti, organizer of the rally to support the conservation of the Arctic National Wildlife Refuge, leads marchers through chants with a megaphone outside the Bank of Montreal in Whitehorse on Aug. 28. The BMO is the second Candian bank to announce it will not directly fund oil and gas projects in the Arctic National Wildlife Refuge. (Crystal Schick/Yukon News file)
Bank of Montreal second Canadian bank to join ANWR boycott

BMO joins RBC, the first to commit to the boycott

Premier Sandy Silver, left, and Chief Medical Officer Dr. Brendan Hanley speak during a COVID-19 update press conference in Whitehorse on July 29. Silver urged “kindness and patience” during the weekly COVID-19 update on Oct. 21, after RCMP said they are investigating an act of vandalism against American travellers in Haines Junction.
(Alistair Maitland Photography file)
COVID-19 update urges “kindness and patience” for travellers transiting through the territory

“We need to support each other through these challenging times”

Whitehorse Correctional Centre officials have replied to a petition by inmate Charabelle Silverfox, who alleges she’s being kept in conditions mirroring separate confinement, arguing that her placement isn’t nearly as restrictive as claimed. (Joel Krahn/Yukon News file)
Inmate not being kept in restrictive confinement, WCC argues in response to petition

Whitehorse Correctional Centre (WCC) officials have replied to a petition by an… Continue reading

wyatt
WYATT’S WORLD

Wyatt’s World for Oct. 23, 2020

asdf
Today’s mailbox: Electricity and air travel

Letters to the editor published Oct. 23, 2020

Yukonomist Keith Halliday
Yukonomist: Irony versus Climate

Lately it seems like Irony has taken over as Editor-in-Chief at media… Continue reading

Evan Lafreniere races downhill during the U Kon Echelon Halloweeny Cross-Country Race on Oct. 16. (Inara Barker/Submitted)
Costumed bike race marks end of season

The U Kon Echelon Bike Club hosted its final race of the… Continue reading

Smartphone showing various applications to social media services and Google. (Pixabay photo)
National media calling for level playing field with Google, Facebook

In Canada, Google and Facebook control 80 per cent of all online advertising revenues

Education Minister Tracy-Anne McPhee, right, before question period at the Yukon legislative assembly in Whitehorse on March 7, 2019. The Yukon government announced Oct. 19 it has increased the honoraria rates for school council members. (Crystal Schick/Yukon News file)
Honoraria increased for school council members

Members of school councils throughout the territory could soon receive an increased… Continue reading

Triple J’s Canna Space in Whitehorse on April 17, 2019, opens their first container of product. Two years after Canada legalized the sale of cannabis, Yukon leads the country in per capita legal sales. (Crystal Schick/Yukon News file)
Yukon leads Canadian cannabis sales two years after legalization

Private retailers still asking for changes that would allow online sales

A sign greets guests near the entrance of the Canada Games Centre in Whitehorse on June 11. The city announced Oct. 16 it was moving into the next part of its phased reopening plan with spectator seating areas open at a reduced capacity to allow for physical distancing. (Crystal Schick/Yukon News file)
CGC reopening continues

Limited spectator seating now available

During Whitehorse city council’s Oct. 19 meeting, planning manager Mélodie Simard brought forward a recommendation that a proposed Official Community Plan amendment move forward that would designate a 56.3 hectare piece of land in Whistle Bend, currently designated as green space, as urban residential use. (Courtesy City of Whitehorse)
More development in Whistle Bend contemplated

OCP change would be the first of several steps to develop future area

Most Read