A former Dawson City couple who sued two women for defamation and was awarded more than $800,000 in damages only to have the decision overturned has taken their case to the country’s highest court.
Angela and Michael Senft filed an application for leave to appeal to the Supreme Court of Canada on May 21.
The Senfts had sued Dawson residents Susan Hermann and Audrey Vigneau in 2017 following a dispute over the Senfts’ treatment of another woman, Daniele McRae.
McRae, who has since died, had added the Senfts to the property title of her Dome Road home in 2010 but abruptly kicked them out seven years later, claiming the couple had tricked her into giving them her house.
The Senfts sued for access to the house, with that lawsuit later settled outside of court.
However, before that lawsuit was settled, Vigneau created an online fundraising campaign to cover McRae’s legal fees, alleging in the description, among other things, that the situation was “blatant senior abuse and fraudulent.” Hermann placed letters in more than 800 mailboxes at the Dawson post office containing similar allegations, and both women made comments about the Senfts online or to the CBC.
A Yukon Supreme Court jury found in February 2019 that the women had defamed the Senfts and awarded the couple more than $800,000 in damages.
The Yukon Court of Appeal, however, overturned the decision and ordered a new trial for Vigneau and Hermann in April, finding that the judge presiding over the original trial hadn’t given the jury proper instructions, particularly on malice.
The jury found that Vigneau and Hermann had acted maliciously, and awarded special damages because of that.
In their application for leave to appeal to the Supreme Court of Canada, the Senfts argued that there were several issues of national importance to their case, including whether general and special verdicts should be held to different standards when being appealed, whether certain pieces of evidence should or shouldn’t be reviewed by appeal judges and whether an unsuccessful party should be allowed to raise an issue on appeal that it didn’t raise during the original trial.
The application noted that the trial judge had provided a draft copy of the instructions he would give to the jury to all the lawyers beforehand, with no one objecting to its contents.
“The Yukon Court of Appeal did not address the several failures of the defence counsel to object,” the document reads. “It is submitted that for over a century common law appellate courts in Canada and elsewhere have viewed the failure to object on issues raised on appeal for the first time to be a determining fact militating against the ordering of a new trial.”
The Senfts are also seeking clarification on how findings of malice should be handled by appeal courts.
The Supreme Court of Canada has not yet ruled on whether it will hear the case.
Contact Jackie Hong at jackie.hong@yukon-news.com