Rising crime (bills)
CRISTIN SCHMITZ OTTAWA
A “rude, insulting and
unfair” e-mail which called
someone “an idiot” for opposing
a proposed sport facility was
defamatory, the British Columbia Court of Appeal has ruled in
awarding the aggrieved plaintiff damages of $3,000.
On April 26, Justice David
Frankel overturned a 2008 trial
decision which held that Mike
Best of Salt Spring Island was
indeed verbally attacked in the
e-mail disseminated to more
than 100 local residents, but
was not defamed, since Salt
Spring Islanders tend to discount the strong language and
hyperbole often present in their
public discourse.
According to the trial judge,
“any right-thinking member of
the community would tend — if
they gave the email any thought
at all—to consider that it
reflected more adversely on its
author than its subject.”
The trial judge might have
been right-thinking, but the
Court of Appeal said the trial
decision itself was wrong. “It is
my opinion that the trial judge
made a palpable and overriding
error in finding that the man-
ner in which public issues are
debated on Salt Spring Island is
such that no one there pays any
attention to statements that
elsewhere would be considered
defamatory,” Justice Frankel
wrote on behalf of Justices
Carol Huddart and Kenneth
Smith.
“For the most part it doesn’t constitute any
major change to the law of defamation, but
to me the interesting part about it is…the
recognition by the court that a private e-mail
can still be the basis of a defamation claim…
that Salt Spring Island is a
community in which public
issues are robustly and passionately debated. However there is
no evidence that suggests that
in the cut and thrust of such
debates it is usual for individuals to be personally attacked
for taking a position, or to have
their motives questioned. More
importantly, there is no evidence to suggest that on Salt
Spring Island disparaging and
demeaning comments made in
the course of debating a con-
The Harper government recently
revived crime bills that died when
Parliament was prorogued last fall.
Back from the dead May 5 was a
bill to create mandatory minimum jail
terms for drug crimes.
On May 4 the government also
tabled a bill that would make it an
offence to traffic in property obtained
by crime, and create a separate
offence of “theft of a motor vehicle”
carrying a mandatory prison sentence
of 6 months for third or subsequent
convictions prosecuted by indictment.
Legislation was introduced May 3
to provide higher sentences for fraud.
A government bill introduced May
6 would require those who provide
electronic mail services, Internet content hosting services and social networking sites to report tips they
receive regarding websites where
child pornography may be available to
the public; and to notify police, and
safeguard evidence, if they believe
that a child pornography offence has
been committed using an Internet
service they provide.
Limitations reform
CONTENTS
NEWS
THE BILINGUAL Supreme Court of
Canada judges bill faces a tough
battle in the senate...................... 1
A NEW rule on insider reporting
tightens up the requirements..... 10
DUELLING PHILOSOPHIES on
takeover bids.............................. 11
QUEBEC’S NEW immigration
regulations could have a cross-Canada impact ............................. 1
Cross-border Law
DISCLOSING PERSONAL
information across the border .... 14
B.C.’S TOP court awards $3,000
for an ‘insulting and unfair’
defamatory e-mail........................2
MULTIPLE PARTIES fight a stormy
jurisdictional battle..................... 15
New Brunswick has overhauled its
Limitations of Actions Act, effective
May 1.
The Act applies to all new legal
proceedings, and to new “claims” in
already existing proceedings, for limitation periods covered by the
Limitations of Actions Act. Generally
speaking, limitation periods that had
not expired on May 1 will continue to
run their course over the next two
years as if the law had not changed.
If there is a conflict between the
new limitation rules and any other
provincial public statute, the latter
prevails. For example, the limitation
periods in the Insurance Act are still in
effect. But if there is a conflict
between the new rules and private
statutes, such as the laws pertaining
to self-governing professions, the
new rules prevail.
AN ARBITRATOR cannot overturn
a professor evaluation policy, says
the B.C. Court of Appeal .............. 3
BUSINESS & CAREERS
Alberta privacy
BIG PLANS for small firms ........ 20
A MAN who was found drunk in
his car wins a suit against his
auto insurer .............................. 3
THE CHANGING legal services
landscape ................................ 21
THE CALL of the sea brought an
academic to marine law............... 4
LAWYER OPTS for immigration
specialty .................................... 23
to which they invited representatives from the regional government and the local parks
and recreation commission.
As the controversy grew,
Rick Weatherall, a tennis association member, feared that the
project would be derailed. In an
effort to deter people from
attending the public forum,
Weatherall sent an e-mail to
the members of the regional
government and the parks and
recreation commission, as well
as to the tennis association’s
secretary. She forwarded his
e-mail to about 100 association
members.
In the e-mail, Weatherall
urged people “to spend their
Sunday evening doing anything
other than dignifying Best’s pri-
vate rantings. Mr. Best DOES
NOT represent anyone but
himself. His credentials, (all
supplied by his own overactive
verbiage) are irrelevant to the
project being undertaken.”
Alleged Weatherall, “he has
supplied nothing, assisted with
nothing and contributed noth-
ing to the tennis-playing people
of SSI. He absolutely does not
deserve to have his rather gar-
gantuan ego further inflated by
having the [commission] staff
trot out to his meeting. In short,
Mike Best’s remarks can be
summed up as follows: ‘It is a
tale, told by an idiot, full of
sound and fury, signifying noth-
ing’ (thanks to W.S.).”
Few members of the tennis
association came to the public
forum.
Justice Frankel noted that
defamation is a strict liability
tort and damages are generally
presumed. He said there was no
proof as to what impact the
defamatory comments had in
the minds of those who read the
e-mails.
On the other hand,
Weatherall intentionally
attacked Best’s reputation publicly to serve his own ends, and
did not apologize. “A proper
damages award is necessary to
both vindicate Mr. Best’s reputation and as consolation for
his hurt feelings,” Justice Frankel concluded. ;
OPINION
Weekly the decision illustrates
that there are no “
defamation-free zones”.
“For the most part it doesn’t
constitute any major change to
the law of defamation, but to
me the interesting part about it
is…the recognition by the court
that a private e-mail can still be
the basis of a defamation claim,
and secondly, that for the legal
principle to be applied which
provides that comments must
be considered in context and
according to the environment
in which they are made, the
court will need to be provided
with solid and substantive evidence regarding the environment and the recipients of the
communications in that
environment,” he said.
The case arose during a controversy in 2005 over whether
$640,000 in public money
should be spent on enclosing in
a “bubble” two outdoor tennis
courts on the island.
The Salt Spring Island Tennis Association had lobbied for
the move, and was contributing
$140,000 to the project. But
Best, a long-time tennis player
and tennis coach, and a former
officer of the tennis association,
objected to the proposed
expense and to people being
required to pay a fee to use the
new facilities. He wrote letters
to the local newspaper criticizing the proposal. He and others
also organized a public forum,
Reasons: Best v. Weatherall, [2010]
B.C.J. No. 716.
JEFFREY MILLER ........................ 5
FOCUS
Business Law
WILL LEGAL project management
lead to a new billing paradigm? ... 9
DEPARTMENTS
RICHES, MCKENZIE & HERBERT LLP
PATENTS, TRADE MARKS, COPYRIGHT, LITIGATION
BARRISTERS & SOLICITORS - PATENT & TRADE MARK AGENTS
PAUL HERBERT, R. PH, B.SC., PHM., LL.B., PH.D. BRANT LATHAM, B.A.SC. B.SC. (CHEM. ENG.), LL.B.
DAN HITCHCOCK, B.ENG. (ELEC. ENG.), LL.B. GARY M. TRAVIS, B.SC. (GEOL.), LL.B.
JEFF PERVANAS, B.A.SC. (ENG. SCI.), LL.B. JASON LEUNG, B.SC. (GENETICS), J.D.
MICHAEL ADAMS, B.ENG. (MECH. ENG.), B.SC., LL.B. BOBBY ATHWAL, B.A.SC. (MECH. ENG.), M.A.SC., LL.B., J.D.
HOW TO deliver legal services
after the recession ....................... 9
MAREVA INJUNCTION: a novelty
for Quebec lawyers .................... 10
Announcements. . . . . . . . . . . 22
Careers . . . . . . . . . . . . . . . . . 21
Classified Ads . . . . . . . . . . . . 19
Lawddities. . . . . . . . . . . . . . . 11
Legal Briefs. . . . . . . . . . . . . . .2
Names in the News. . . . . . . . . 4
Weekly Digest. . . . . . . . . . . . 16
TRADE MARK AGENTS LEONARD GROVE (1930-2006)
MARTA TANDORI CHENG TELEPHONE: (416) 961-5000
2 BLOOR ST. EAST, SUITE 1800 FAX: (416) 961-5081
TORONTO, ONTARIO M4W 3J5 E-MAIL: riches@patents-toronto.com
Major changes to Alberta’s Personal
Information Protection Amendment Act,
2009 and its Regulation came into
force on May 1.
One of the most significant reforms
requires organizations to inform, without unreasonable delay, the provincial
information and privacy commissioner
of the loss, or unauthorized access to
or disclosure of, personal information
under their control. Notice is required
where a reasonable person would
consider that there is a consequential
real risk of significant harm to an individual. The commissioner will then
decide whether, and how, individuals
should be notified.
There is also a new requirement that organizations provide
information about service providers they use in foreign jurisdictions to collect, use, store or disclose personal information.
