2006 BCCA 467 Stanley v. Shaw and Tracey

Before:	The Honourable Chief Justice Finch
	The Honourable Mr. Justice Hall
	The Honourable Madam Justice Saunders

Oral Reasons for Judgment

F.A. Schroeder	Counsel for the Appellant
A.D. Gay J.L. Gartner	Counsel for the Respondent
Place and Date:	Vancouver, British Columbia
13 October 2006

[1] SAUNDERS, J.A.: Mr. Stanley appeals from the order of Mr. Justice Stewart made under R. 19(24)(a) of the Rules of Court, dismissing his claim against two of the four personal defendants in this defamation action. The reasons for judgment are neither reported nor indexed. The question before the learned chambers judge was whether the statement of claim disclosed a reasonable claim against Mr. Shaw and Mr. Tracey. The learned chambers judge correctly described the test as follows:

[6] The test I must apply in deciding whether the applicants have discharged the burden that is theirs was settled by the Supreme Court of Canada in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.

[7] The question for me, therefore, becomes this: Have the applicants established that it is plain and obvious that, taking the allegations of fact in the Statement of Claim as gospel, the Statement of Claim fails to disclose a reasonable claim.

[2] The chambers judge found that Mr. Shaw and Mr. Tracey had established that it was plain and obvious that the statement of claim failed to disclose a reasonable claim because the pleading did not allege against them the necessary elements of the tort of defamation, in particular, publication of the statement said to be defamatory.

[3] The statement of claim alleges that Mr. Stanley was employed by Sutton Group Realty Services Ltd./Groupe Sutton de Services Immobiliers Ltée. ("SGRS"). SGRS is alleged to be a corporation whose business is the sale of real estate franchises. Mr. Scott and Mr. Tracey are alleged to be real estate agents who are officers and directors of SGRS. The defendant in the action, Mr. Rodger, a representative of a different company, is alleged to have sent an e-mail message to SGRS franchisees defaming Mr. Stanley. The message is alleged to have come to the attention of Mr. Scott and Mr. Tracey. The statement of claim alleges as to their behaviour:

27. On receipt of the defamatory allegations of Rodger, Shaw and Tracey said and did nothing. The response of Tracey to the denial of the defamatory allegations of Rodger by the Plaintiff was:

I am not surprised by Bill's actions. He clearly knows how to stir the pot in his favour. It is unfortunate that we have to be cautious on how to respond to this as it is another negative perception issue.

28. The silence of Shaw and Tracey in response to the defamatory allegations of Rodger constituted endorsement by Shaw and Tracey of those defamatory allegations. Shaw and Tracey compounded the defamatory message to the SGRS franchisees when they allowed the SGRS marketing manager, Laurie Smith, at the last minute, to withdraw his name from the proposal developed by the Plaintiff for improved and expanded services for the franchisees and to absent himself from the September 29, 2004 meeting between the Plaintiff and the Lower Mainland SGRS franchisees.

[4] It is alleged that as a result of the defamatory allegations the franchisees refused to work with Mr. Stanley such that he could not do his job, that he was terminated as a result, and that the alleged defamatory allegations caused loss to Mr. Stanley.

[5] As the reasons for judgment are not available elsewhere, it is useful to set out in full form the substance of the chambers judge's conclusions. He held:

[8] In my opinion the facts as pled disclose no reasonable claim, for nothing pled by the plaintiff points to an act by either or both of Shaw and Tracey that amounts to a publication concerning the plaintiff. That an act amounting to publication of a statement concerning the plaintiff is an irreducible element of the cause of action labelled defamation is hornbook law. And it is that cause of action that lies at the bottom of the case against the two applicants before me today.

[9] The plaintiff's submission that duties imposed upon employers by the Supreme Court of Canada in the case of Wallace v. United Grain Growers Limited, [1997] 3 S.C.R. 701 are relevant to this case of alleged defamation was not taken beyond a reference by name during the submissions this morning to Wallace v. United Grain Growers Limited, supra. On the face of it counsel's assertion of the relevance of one body of law to a discrete body of law is unconvincing. Nothing was submitted by counsel by way of an analysis. The bald assertion about the relevance of what the Supreme Court of Canada said in Wallace v. United Grain Growers Limited, supra, to what is before me now today was, and remains, unconvincing.

[10] In my respectful opinion the plaintiff's case on the application before me today rests on what counsel for the plaintiff says I should take from the case of Smith v. Matsqui (District), [1986] B.C.J. No. 3202, and this passage from The Law of Defamation in Canada (2d), R.E. Brown, Vol. 1, No. 7.3:

There are no limitations on the manner in which defamatory matter may be published. Any act which has the effect of transferring the defamatory information to a third person constitutes a publication.

[11] The passage from the text just noted demands an act of publication. Here no such act is pled. The case of Smith v. Matsqui (District), supra, happens to deal with silence by the defendant in the face of an allegation by a third party against the plaintiff, but it does so at the conclusion of a trial. It is, in my respectful opinion, simply illogical to draw from the case any point other than that in that case silence by the defendant, in the result, did not tell against him. The case is not authority for any proposition of law that assists the plaintiff here today.

[12] I return very much to where I began.

[13] I find that it is plain and obvious that whether one looks at paragraph 27 or paragraph 28 of the Statement of Claim there is no act of publication known to the law of defamation alleged against either, or both, Shaw or Tracey. That being so the applicants have discharged the onus upon them of establishing that, taking the facts as alleged in the Statement of Claim as gospel, it is plain and obvious that the impugned passages of the Statement of Claim disclose no reasonable cause of action against Shaw or Tracey.

[6] Before us, counsel for Mr. Stanley contended that the chambers judge erred. He said that the allegations of silence on the part of Mr. Shaw and Mr. Tracey, and the allegations that they permitted Mr. Smith to absent himself from a meeting, are allegations of a communication to the franchisees that they believed the defamatory allegations of Mr. Rodger.

[7] I agree with the reasons for judgment of the chambers judge. In my view, the pleading that Mr. Shaw and Mr. Tracey "said and did nothing" is an allegation that there was no publication on their part of the message said to be defamatory. That is, no tortious act on their part is alleged in relation to their silence. Nor does the pleading in respect to Mr. Smith come close to an adequate pleading of defamation as there is no act alleged by which either respondent is said to have conveyed a defamatory message through his absence at the meeting.

[8] Mr. Schroeder has pointed us, in his factum, to Smith v. Matsqui (District) referred to by the chambers judge. Smith was a case concerning internal correspondence that appeared in a newspaper and a radio interview in which the mayor was largely silent. The head note accurately captures the conclusion:

… Mere silence on the part of the mayor during the talk show could not be regarded as defamatory. The comments he did make as well as the internal correspondence generated by him dealing with the suspensions were protected as matters of qualified privilege.

[9] In particular, Smith does not stand for the proposition asserted that mere silence may amount to defamation.

[10] Nor does Wallace v. United Grain Growers, referred to by the chambers judge and referred to on behalf of Mr. Stanley, assist Mr. Stanley as it does not address the elements of the tort of defamation, nor does it speak to the manner in which publication may occur.

[11] For the reasons of the chambers judge, I would dismiss the appeal.

[12] FINCH, C.J.B.C.: I agree.

[13] HALL, J.A.: I agree.

[14] FINCH, C.J.B.C.: The appeal is dismissed.

“The Honourable Madam Justice Saunders”