Pliuskaitis v. Jotautas
47 O.R. (3d) 227
 O.J. No. 4571
Court File No. C37208/96
Ontario Superior Court of Justice
November 8, 1999
Torts — Libel and slander — Defences — Qualified privilege
— Defendant sending two letters to professional organization of which plaintiff swimming coach was member — Letters stating that plaintiff operated in manner which contradicted organizations’ beliefs and that he had no place in coaching — Defendant submitting letters out of moral or social duty — Defence of qualified privilege available.
The plaintiff was head swimming coach with a swimming club, and the defendant was a member of the club’s board of directors before being required to resign as a result of an ongoing legal dispute with the plaintiff. That dispute, which arose as a result of a letter which the plaintiff wrote criticizing the defendant’s actions as secretary-treasurer, was settled and the plaintiff was required to write to members of the club apologizing for writing and publishing the letter and to pay damages and costs. The defendant then wrote to a professional association of which the plaintiff was a member, stating that the plaintiff operated in a manner that contradicted the beliefs of that organization, that he set an example for the coaching staff and children of the club that was not fitting and that he had no place in coaching. The plaintiff brought an action for damages for libel.
Held, the action should be dismissed.
Statements made in the performance of a legal, moral or social duty or in the protection of an interest may be the subject matter of qualified privilege. The defendant had no statutory duty to communicate with the professional organization, nor did he make the statements by way of protecting an interest. However, he submitted the letter out of either a moral or social duty, and the defence of qualified privilege was available to him. There was no evidence that he acted maliciously in sending the letter.
Cases referred to
Creedan Valley Nursing Home Ltd. v. Van Lkavern,  O.J. No. 4475; Hebert v. Jackson,  O.R. 255,  2 D.L.R. 538 (H.C.J.) [revd in part  O.R. 799,  1 D.L.R. 13 (C.A.)]; Hill v. Church of Scientology of Toronto,  2 S.C.R. 1130, 24 O.R. (3d) 865n, 126 D.L.R. (4th) 129, 184 N.R. 1, 30 C.R.R. (2d) 189, 25 C.C.L.T. (2d) 89; Littleton v. Hamilton (1974), 4 O.R. (2d) 283, 47 D.L.R. (3d) 663 (C.A.) [leave to appeal to S.C.C. refused (1974), 4 O.R. (2d) 283n, 47 D.L.R. (3d) 663n]; Parsons v. Windsor Star (1989), 71 O.R. (2d) 5, 63 D.L.R. (4th) 732 (H.C.J.) [supp. reasons (1989), 63 D.L.R. (4th) 755]
ACTION for damages for libel.
Mariano Mazzucco, for plaintiff. Bruce F. Duggan, for defendant.
DUNN J.: —
 The plaintiff claims general and punitive damages for the breach of “minutes of settlement” and for libel. His claim for special damages was abandoned at the outset of trial. The action of the defendant giving rise to the claim centres around two letters complaining of the conduct of the plaintiff which the defendant wrote to a professional organization of which the plaintiff is a member.
Factual Basis of Claim
 The plaintiff has been a swimming coach since 1986 and from 1990 to 1996 served as the head coach of the Cobra Swim Club in Brampton. It is clear that he was quite successful over the years in bringing that swim club to a highly competitive level. He himself acted as a national team coach for Canada for the years 1993 through 1995 and was in 1994 selected as Canadian Coach of the Year. His aggressive approach to competitive swimming brought him into conflict on a number of occasions with the largely volunteer board of the Cobra Swim Club. For the most part these differences were resolved as they occurred.
 On one occasion, however, following a dispute with the defendant who acted as treasurer of the club, the plaintiff drafted a letter to the Cobra Board of Directors complaining about the actions of the defendant as secretary-treasurer. This letter dated December 13, 1994 opined that there were attempts to create “dissention”, an undermining of the head coach by the use of “unethical tactics” and an “abuse of the position of secretary-treasurer by invoking personal bias”.
 The letter was signed by the plaintiff and the rest of the coaching staff. The evidence clearly showed that the plaintiff instigated the letter and asked for the assistance of the rest of the staff in promulgating it. He had it posted in a conspicuous place where other team notices were displayed and, of course, made sure that the Board of Directors received it.
 The complaint of the plaintiff, which his staff supported, appears to be focused largely around the payment of his coaching salary and included the application of certain grants received by the club as a result of his duties as a national coach. While the evidence establishes that the defendant was, at the least, somewhat arbitrary about his approach to the matters, he was, in large part, supported by the Board. When the letter from “coaching staff” was published, the defendant issued his own claim for libel in December of 1995.
 As a result of the controversy caused by the coach’s letter, the plaintiff was dismissed by the Board of Directors of Cobra Swim Club, but after a few weeks was reinstated as head coach. In view of the ongoing legal dispute, the Board of Directors passed a resolution in April of 1995 requiring the removal of the defendant as a director in circumstances where, as a director, he was engaged in a lawsuit with the coach. It appears that the Board met on several occasions to discuss the issue of the ongoing dispute between the parties. The defendant, in the circumstances, took his own children out of the Cobra Swim Club and joined another organization. The plaintiff continued to coach Cobra Swim Club for the balance of the year when his contract was not renewed.
 Following a pre-trial procedure and with the trial imminent in January of 1996, a resolution was reached of the claims of the defendant. The settlement is central to the issues that were put before the court in the current litigation. A copy of the minutes of settlement is attached as Appendix B together with a copy of a letter required to be signed by the plaintiff as a part of that settlement. In summary, the settlement required the plaintiff to pay the defendant $5,000 for damages and $10,000 for legal costs. The letter that the plaintiff was required to write to each member of the swim club apologizes for the “writing and publishing of the letter of December 13th”. As well, it admitted “untrue and libelous statements and admitted that it was an unfair attack upon Jotautas”.
 The letter was published indicating the plaintiff’s apologies and the damages and legal costs were paid effective January 16, 1996, some 13 months after the original coach’s letter was “published” by the plaintiff.
 It does not appear that as part of the settlement Jotautas was required to release any and all claims against the plaintiff. The lack of such a document, however, probably would not have affected the outcome of the present trial.
 Once the ink was dry on the settlement documents and the letter of apology, the defendant wrote his own letter to the Canadian Swimming Coaches Association (CSCA) of which the plaintiff was a member. The first letter of the defendant, dated February 10, 1996, advised the association Board of Directors of the dispute recently resolved with the plaintiff. While this letter fairly summarizes the incidents involved, it also criticized the plaintiff in his role as coach in enlisting the support of the rest of the coaching staff. He said in part “there is no reason (they) would have signed the letter other than for undue pressure by senior coaching staff, in particular Coach Pliuskaitis”. It excepted from his criticism the older coaches. The letter then goes on to quote the “code of ethics of the Canadian Swimming Coaches Association” and made the following statement:
Michael Pliuskaitis operates in a matter that contradicts the beliefs of your association. The example he has set for the coaching staff and the children of the Cobra Swim Club is not fitting. He reflects negatively on your association and its coaches. I believe Michael Pliuskaitis has no place in coaching.
 In response to an inquiry from the association asking if he wished to refer the matter to the Ethics Committee, the defendant wrote a second letter on March 6, 1996. In this letter he enclosed documentation as suggested by the association and complained that the plaintiff had:
. . . caused much damage in my relationship with members of the Cobra Club.
. . . My children suffered much demoralization and I was forced to change clubs to keep them swimming.
Coach Pliuskaitis knowing for in excess of a year that he was misleading the club continued his damage to me and my family. He has been the worst example possible to the swimmers. . . . Coach Pliuskaitis operates in a manner that contradicts the beliefs of your association. He reflects negatively on your association and coaches. He brings disrepute to you. I believe Michael Pliuskaitis has no place in coaching. It is my belief that . . . Coach Pliuskaitis in his example does widespread damage to the sport of swimming. Coach Pliuskaitis should be removed from your association and not allowed to coach in any swim club.
 As is evidenced by a letter to the defendant on August 28, 1996, it appears that the association considered the defendant’s complaints and concluded that while the plaintiff exhibited “poor judgment” in posting the letter of the coaching staff, the minutes of settlement have “brought closure to the unfortunate incident”. No further disciplinary action or criticism was made of the plaintiff by the association. The letters of complaint and criticism by the defendant, however, found the present action.
 The plaintiff has the onus of proving that the statements made by the defendant are libelous. Once he has satisfied this burden, it must then be determined whether the defendant is entitled to one or more of the defences allowed in such cases. In this matter the defendant claims “qualified privilege”, and in the event that he is not successful in this defence, then he claims the defence of justification.
 The words used in the defendant’s letters to the association can be classified in a number of different ways. The first is, of course, the reporting of the facts concerning the prior litigation and its conclusion with settlement. As well, the defendant alleges that the plaintiff has caused harm or difficulty to him and his family, that the defendant concludes or is of the opinion that the plaintiff had influenced others improperly to participate in the original letter, that he further concludes or opines that:
(1)except for the undue pressure by the plaintiff, the younger members of the staff would not have signed;
(2) the plaintiff’s conduct contradicts the CSCA beliefs, that his example is not fitting, and reflects negatively on the Association that the plaintiff has no place in coaching, is the worst example to swimmers, misleading, and causes widespread damage to the sport of swimming.
 Statements of the defendant that the plaintiff misled others, that his conduct was contrary to the legal beliefs of the Association, coupled with opinion of the defendant, is on this evidence without doubt a libel of the plaintiff’s character and reputation. It then remains to determine if the defendant can succeed in one of the defences reflected in the pleadings.
A. Qualified Privilege
 Statements made in the performance of a legal, moral or social duty or in the protection of an interest may be the subject matter of qualified privilege. It should be noted, however, that, as the majority held in Hill v. Church of Scientology of Toronto,  2 S.C.R. 1130, 126 D.L.R. (4th) 129, qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. Thus, qualified privilege is not a constant; there is no “bright-line” test for it. It varies with each situation. As noted by Chevrier J. in Hebert v. Jackson,  O.R. 255,  2 D.L.R. 538 (H.C.J.), it is often difficult to define what kind of social or moral duty, or what amount of interest, will make an occasion privileged, but the modern tendency has been to widen the application of the rule with a view to accommodating the competing social and political interests for the good of society. On occasion, it will be necessary for private interests to give way to public convenience. In addition, in order for an occasion to be considered the subject of qualified privilege, a corresponding interest in receiving the statement must exist in the recipient of it. Without this interest, there is no qualified privilege.
 The defendant claims that as a member of the swimming fraternity he had a legal or moral duty to bring the plaintiff’s conduct to the attention of the CSCA and that that body had a corresponding interest in the information. The defendant further claims he operated under the social duty of a parent whose children were enrolled in swimming classes, albeit with a different club at the date of the letter in question.
 A legal duty exists where there is a statutory requirement for one person to report information to another. For instance, persons having responsibility for the care of children are required to report cases of abuse or neglect. In the case of Creedan Valley Nursing Home Ltd. v. Van Lkavern,  O.J. No. 4475, a statutory privilege to speak out against her sister’s treatment at the nursing home was provided by s. 33 of the Nursing Homes Act, R.S.O. 1990, c. N.7. In that case, the privilege provided by that section was intended to encourage all persons to speak out without fear and the Residents’ Council was said to have had an interest in hearing complaints because that was the very purpose of its existence. However, I find that in this case, the defendant had no such legal, that is, statutory, duty to communicate with the CSCA.
 Nor do I find that the defendant made the statements by way of protecting an interest, such as in property or his reputation. The rule concerning the protection of such interests was stated by Dubin J.A. who delivered the judgment of the Ontario Court of Appeal in Littleton v. Hamilton (1974), 4 O.R. (2d) 283 at p. 285, 47 D.L.R. (3d) 663 at p. 665:
In order to hold that words are published on an occasion of qualified privilege, something more is necessary than the mere fact that the words are being addressed to a matter of public interest.
 In other words, in order to be considered an occasion of qualified privilege, the statements must be made in protection of a lawful rather than general interest. I cannot say that the defendant has proved he was protecting a lawful interest when he sent the letter of complaint to the CSCA.
 Thus, if the defendant is to succeed he must demonstrate that he was under either a moral or social duty to communicate the information about the plaintiff to the Coaches’ Association.
 I am satisfied, given all of the evidence before me, that the defendant submitted the letter out of either a moral or social duty and therefore the communication was an occasion of qualified privilege. My reasons for so finding follow.
 It is nearly impossible to separate a moral duty from a social one. Indeed, there are no legal sanctions to be applied if the information in question were not disclosed and in many cases the disclosure comes perilously close to being perceived as meddling in the affairs of another. Just as often, however, the interests of a democratic society are preserved by having procedures whereby one citizen may complain about the behaviour of another.
 As an example, parents may complain to principals when they believe their children are treated unfairly or inappropriately and citizens may complain about the conduct of police. In the latter instance of Parsons v. Windsor Star (1989), 71 O.R. (2d) 5, 63 D.L.R. (4th) 732 (H.C.J.), Mr. Justice Chadwick indicated that he would have “no hesitation in applying the defence of qualified privilege” to a complaint brought by a member of the public to the Windsor Police Department.
 And, while it cannot be said that I have no hesitation in applying the defence in this case, I do find that the defendant brought his complaint to the Coaches’ Association under either a moral or social duty and, therefore, succeeds in his defence of qualified privilege.
 Having so decided, the matter of malice must be dealt with. As indicated by the Supreme Court in Hill v. Church of Scientology of Toronto, supra, the privilege that is found by the court is not absolute and may be defeated when the limits of the duty are exceeded as a result of malice or spite. The burden of proof of malice, however, rests upon the plaintiff who must show that the statements broadcast on a privileged occasion were not made honestly or in good faith.
 In this case, notwithstanding the fact that the conduct of the defendant followed so closely upon the “settlement” between himself and the plaintiff, and that the defendant’s demeanour in the stand presented a determined antagonism to the plaintiff, I cannot, upon consideration of this evidence, conclude that the plaintiff has proved that the defendant acted maliciously in sending the letter of complaint to the Association.
 While this need not necessarily be addressed, given my conclusion above, it may be disposed of summarily. Justification as a defence is available if the words were true “in substance and in fact”. Given the “natural and ordinary meaning” to the words written by the defendant, I can conclude that much of the defendant’s statement is true when compared to the written settlement or apology of the plaintiff and in the context of the evidence received at trial. It has not been shown, as I have stated, that the plaintiff improperly influenced the younger coaches, nor can I say that the plaintiff is otherwise a “negative reflection” on the Association, that he has “no place in coaching”, or that he is the “worst example possible” to the swimmers who reflects negatively on the Association.
 The defence of justification, in my opinion, would not be available to the defendant on the evidence before me.
 While there has been adequate proof of a libel by the plaintiff against the defendant, I find on the evidence that the defendant is entitled to the defence of qualified privilege based on his belief objectively viewed and in the absence of malice. As a consequence, the plaintiff’s case fails on the
evidence, may I say perhaps, by a narrow margin.
 In the event that I am wrong in my consideration of the law on the evidence as shown, I would assess damages to the plaintiff in the nominal amount of $5,000 together with costs to the plaintiff set at $10,000. This is reflective of the original settlement made between the parties in the initial litigation.
 While the defendant has been successful, I am not at all sure that he should be entitled to costs in circumstances such as these. The matter of costs was not argued before me. Counsel may address costs in writing, if they wish to do so, with the defendant submitting submissions within 30 days of the day of the judgment and the plaintiff’s submissions 15 days later. Upon considering any such submissions, I may also ask for the attendance of all counsel involved.