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Defamation in strata (2)

The tenant’s defences

If defamation is made out, it is then a question of whether there are any defences. These can be numerous (not the least of which is that what was said was true).

The tenant raised four defences:

The email was justified

The Judge had to run through each imputation here and at the end of the day held that none of the chairperson’s correspondence was anything other than reasonable or proportionate. The tenant’s use of the very strong adjectives was designed to embarrass the chairperson.

‘Leaving a letterbox unlocked is not a trivial matter when there are two mailbox break-ins and, as the police noted in their public warnings, while mail theft might appear petty, it should be taken seriously because of the potential for criminal activity ranging from credit card misuse to identity theft involving crime syndicate activity.’

The email was honest opinion

Was what the tenant said fact or opinion? The only matter that was held  to  be opinion was the imputation that the chairperson was a busybody. The other elements (harassment, menace and malice) were all statements of fact made by the tenant in the email.

The matter was trivial

While the locking of a letterbox may be trivial, the imputations made by the email were not. The Judge said:

‘the use of words such as “criminal”, “stalk”/“stalking” (twice), “fixation”, “thief”/“thieves” (six times), “harassing”/“harassment” (twice), “offensive” and “menacing” do not suggest light-hearted or jocular communication. The addition of suggestions, to persons some of whom could have been the victims of the mailbox break-ins, that the [chairperson] could have staged the break-ins as well as behaved threateningly to a woman tenant, could not in the circumstances of publication mean that there was an absence of the real possibility of harm to the reputation of the [chairperson].’

Common law qualified privilege

This defence is made out where the publication is made in the course of a legal, social or moral duty to a person with a corresponding duty or interest.

In other words, other people with similar potential issues need to know what is going on.

The Judge did not hold back on the tenant here:

‘I am satisfied that the [tenant] was well aware of the falsity of her allegations. She knew that the [chairperson] had not consistently chosen the public option, and that he had not copied in all residents or the defendant’s real estate agent into the prior imputations about which he complained. She knew his emails were not harassing in nature and that she was not being harassed by him.’

And:

‘A significant matter in the list of particulars of malice  is prior hostility, personal spite and ill-will towards the [chairperson]. I am satisfied that the [tenant] was angry and resentful at being told to keep her mailbox closed and the fact that two mailbox break-ins occurred, instead of being regarded by her as being an opportunity to reconsider her position, simply made her angrier. She published the matter complained of to humiliate and insult the [chairperson] in the eyes of all the other residents in the building and she was motivated by her hostility and ill-will towards him in doing so.’

The fact that the tenant was held to be malicious defeated this defence.

All of the tenant’s defences failed.

Damages

With respect to the damages awarded, the Court must ‘ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.’ These are general damages.

Aggravated damages can be awarded where the circumstances in which the defendant has defamed the plaintiff increased the hurt or humiliation to the plaintiff.

Here, the Court held that:

‘It would be fair to say that every sentence of the defendant’s email in reply struck a blow at the plaintiff, and was intended to ridicule and humiliate him in every way.’

This led to an award of $90,000 for general hurt and distress.

And, noting that, in addition to the tenant failing to apologise despite being asked to:

‘A substantial award of aggravated damages should  be made by reason of the strong evidence that the defendant’s conduct was improper, unjustifiable and lacking in bona fides.’

This led to another $30,000.

Source: Hynes Legal

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