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.”
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