Décision

INTRODUCTION

[1]           The Court must rule on proceedings taken by Ms Julie Davis against Ms Melissa Singerman.  Ms Davis alleges that Ms Singerman tarnished her reputation and infringed on her privacy with intent to cause moral and psychological damages.

[2]           Ms Davis refers more specifically to two distinct events: the first one is an email, dated June 28^th, 2011 from Ms Singerman to Ms Davis.  The second is a posting on Ms Singerman’s Facebook page.

[3]           Ms Singerman does not dispute being the author of the email and of the posting.  Ms Singerman believes that she acted without malice and with no intent to cause harm to Ms Davis.

I           CONTEXT

[4]           Ms Davis is involved in an acrimonious divorce proceeding with her husband, Isaac Lew.  At some point, Ms Singerman became Isaac Lew’s girlfriend.

[5]            Initially, the relationship between the parties was amicable. Some of the emails filed into the Court record do show that the relationship between the two women was courteous and polite.[1]

[6]             In the fall of 2010, and because of pending assault charges, Ms Davis could not communicate directly with Mr. Lew.  Ms Singerman offered to facilitate the exchange of information, especially in regards to the children of the marriage. Over time, Ms Singerman became the communication point between Ms Davis and Mrs Lew. In hindsight, this offer became the source of the litigation.

[7]           Ms Davis testifies that the relationship as of May 2011 changed. According to a friend of Julie Davis, Ms Corinne Ohayon, Ms Singerman fueled the fire which was burning between Mr Lew and Ms Davis.

[8]            At the time, Ms Ohayon was acting as a divorce coach to the couple and she explained to the Court that there was a lot of anger between Ms Davis and Mr. Lew.

[9]           In any event, it is not disputed between the parties that the relationship did indeed sour. 

II          THE EMAIL DATED JUNE 28, 2011

[10]        The email was sent by Ms Singerman to Ms Davis[2].  Julie Davis felt the need to discuss how she should react to the email.  The contents of the email only became known to Ms Ohayon who was close to Julie Davis. Ms Davis felt she needed her advice.

[11]        The email called into question the behaviour of Ms Davis in regards to her youngest child.  The facts which are reported in that email became known to Ms Singerman during a family outing in the presence of Mr Isaac Lew, the child and the grandparents. 

[12]        Mr. Lew was so surprised by the child’s statement that he asked the child to repeat it and recorded the statement.[3]

[13]        Ms Davis thought the child was serious and she accepted his word.

[14]        Eventually, the facts stated in the email were part of a report to the Youth Protection Division and the MUC police was involved as well.  The facts reported by the child were not retained by the police or the Youth Protection Division.[4]

[15]        There is no evidence to suggest that Ms Singerman was behind the report to the Youth protection Division.

[16]        The Court notes that the email was not drafted to inform Ms Singerman of the context under which the statement had been made by the child or to inform her of the statement.  The email is an affirmation of facts.

[17]        After consulting with her friend, Ms Davis decided not to respond to the email.

III         THE FACEBOOK POSTING OF JULY 2011

[18]        The posting was made on July 4^th, 2011.  It appeared on Ms Davis’ Facebook page and Ms Singerman was advised by her cousin, Jill Frankel, of the posting.  She received an email from Ms Frankel which copied the posting.  The posting reads as follows:

«  I am trying to understand how a mother with a full time job can  live in a womans shelter with her children for six months, sleep with her 7 year old son with barely any clothes on, pawns her children off at her friends house every weekend, keeps no food in her home to feed her children.  Was under investigation with HRS for child abuse.  How is she able to get away with it ?????» [5] 

[19]        Ms Singerman explains that she wrote the posting because she was frustrated with the situation between Mr Lew and Ms Davis and what the children were going through.

[20]        Her Facebook account was private. In other words, only a Facebook friend could have access to it.  Ms Singerman testifies that before she posted the comment on her Facebook account, she made sure that there were no friends of Ms Davis on her account. 

[21]        The purpose was not for Ms Davis to see the posting.  At the time, Ms Singerman did not realize that Julie Frankel would have access to the posting.

[22]        Further to an undertaking requested at the examination on discovery of Ms Singerman, a list of 18 people who had access to the posting on her Facebook account was supplied. The testimony that there were only 18 individuals on July 4, 2011 that could see her posting is made from her recollection of who were her Facebook friends at the time.

[23]        Although Ms Davis was under the impression that her daughter was in a position to see the comments as she is a user of Facebook, this evidence was not made before the Court. 

[24]        On the contrary, the evidence of Ms Singerman is that the child was blocked from seeing her posts.

[25]         It is clear that Ms Singerman’s account was private and that for people to see her posting, they would have to be accepted as friends on her Facebook account.  One thing is certain, the posting was seen by Ms Davis’ cousin and Ms Davis became aware of it.

[26]         Ms Davis consulted with her attorney and a letter of demand was sent on July 7^th 2011.[6]  The letter was received by Ms Singerman.  It does not specifically refer to the Facebook posting nor does it state that it is sent on behalf of Ms Davis. 

[27]        Ms Singerman did not act upon the letter of demand from Ms Davis’ attorney because she did not know what it related to.  She sent an email to Plaintiff’s attorney on July 12, 2011 requesting more information.[7] She later realized it was coming from Ms Davis’ attorney when she discussed it with Mr. Lew. 

[28]        The introductory motion for damages was filed on July 13, 2011.

[29]        Ms Singerman eventually erased the posting after she consulted with an attorney.  She actually removed herself from Facebook.

IV         QUESTIONS IN DISPUTE:

[30]        The Court identifies the following questions:

A)    Did Ms Singerman infringe on Ms Davis’ privacy and did she defame her reputation?

B)     What are the damages caused to Ms Davis? 

V    ANALYSIS:

A)        Did Ms Singerman infringe on Ms Davis’ privacy and did she defame her reputation?

[31]        In the case of Société Radio Canada c. Radio Sept-Îles [8], the Court of Appeal defined an act of defamation :

[35] Génériquement, la diffamation consiste dans la communication de propos ou d'écrits qui font perdre l'estime ou la considération de quelqu'un ou qui, encore, suscitent a son égard des sentiments défavorables ou désagréables . Elle implique une atteinte injuste à la réputation d'une personne, par le mal que l'on dit d'elle ou la haine, le mépris ou le ridicule auxquels on l'expose.

[32]        Article 3 of the Quebec Civil Code reads:

 Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy.

These rights are inalienable.

[33]        The Court also refers to sections 3 and 4 of the Charter of Rights and Freedoms[9] 

3.  Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.

4. Every person has a right to the safeguard of his dignity, honour and reputation.

[34]        It is accepted that a recourse in defamation is subject to general principles of civil liability[10], and namely article 1457 C.C.Q. which reads:

Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

[35]        A statement may be deemed defamatory if it becomes public and was communicated to a person other than the Plaintiff[11].  In the present case, the email of June 28 only became public because Plaintiff chose to consult her friend.

[36]         The Facebook posting was not public but was, at the very least, accessible to approximately 18 people.  Of those, the evidence shows that only Jill Frankel became aware of it.  Ms Davis was never confronted with what appeared in the posting. It did not become known in her social circle or at work.

[37]        In the case of Beaudoin c. La Presse[12], Justice Senécal referred to what may be considered as defamatory:

  47  La faute en matière de diffamation peut résulter de deux genres de conduite.

La première est celle où le défendeur, sciemment, de mauvaise foi, avec intention de nuire, s'attaque à la réputation de la victime et cherche à la ridiculiser, à l'humilier, à l'exposer à la haine ou au mépris du public ou d'un groupe. La seconde résulte d'un comportement où la volonté de nuire est absente, mais où le défendeur a malgré tout porté atteinte à la réputation de la victime par sa témérité, sa négligence, son impertinence ou son incurie.

48  Comme le souligne Baudouin, les règles ordinaires de la responsabilité s'appliquent en matière de diffamation et il faut abandonner l'idée fausse que la diffamation est seulement le fruit d'un acte de mauvaise foi emportant intention de nuire.

49  Par ailleurs:

Bien qu'on ait parfois tendance à conclure le contraire, [...] la transmission d'une information fausse n'est pas toujours fautive. À l'inverse, la communication d'une information même vraie peut parfois engager la responsabilité civile de son auteur.

50  On touche ici un autre élément fondamental, soit qu'il ne suffit pas qu'une chose soit vraie pour que quiconque puisse la dire à n'importe qui. Toute vérité n'est pas bonne à dire. Il faut qu'il y ait un intérêt public à dire cette vérité et que celle-ci ne soit pas communiquée dans le seul but de nuire.

51  La notion d'intérêt public n'est pas toujours facile à définir. Elle varie suivant les lieux et les circonstances. Dans le cas de la presse, «le concept signifie principalement que la diffusion de l'information ne doit pas répondre à un simple objectif de voyeurisme médiatique; il faut que l'on retrouve une utilité sociale à la diffusion de cette information».

[38]        In the case of Prud’homme c. Prud’homme[13] the Supreme Court of Canada wrote:

33.    To demonstrate the first element of civil liability, the existence of injury, the plaintiff must convince the judge that the impugned remarks were defamatory.  The concept of defamation has been defined in several ways over the years.  Generally speaking, it is held that defamation   ‘’consists in the communication of spoken or written remarks that cause someone to lose in estimation or consideration, or that prompt unfavourable or unpleasant feelings toward him or her ‘’

34.     Whether remarks are defamatory is determined by applying an objective standard. In other words, we must ask whether an ordinary person would believe that the remarks made, when viewed as a whole, brought discredit on the reputation of another person.  On this point, we should note that words may be defamatory because of the idea  they expressly convey, or by the insinuations that may be referred from them

[39]        The Court has no doubt that the Facebook posting conveyed a negative image of Ms Davis and clearly insinuated that she was an unfit mother. The Court concludes that the Facebook posting was defamatory.

B) What are the damages caused to Ms Davis?

[40]        Ms Davis is of the view that Ms Singerman acted with malice and was out to get her.  It starts with the June 28 email and follows with the publication on Ms Singerman’s Facebook account.  She asks for a condemnation of 50,000$ as moral damages and a further sum of 25,000$ as punitive damages.

[41]        Ms Singerman is of the view that the email of June 28 was private and that the posting on Facebook was not made with any intent to cause damage to Ms Davis. 

[42]        Ms Singerman seemingly did not care what effect the email of June 28 would have on Ms Davis.  As stated hereinabove, the email is not drafted to inform Ms Davis of what her son had stated. 

[43]        It was drafted as an affirmation and the child’s words were accepted.  Even during the hearing before the Court, Ms Singerman stated that she believes the statement to be true. 

[44]        The Court is not in a position to decide if the statement is accurate.  The evidence before the Court is that the statement was not retained by the Youth Protection Agency or by the Police. 

[45]        The email was never published and was a private communication between Ms Davis and Ms Singerman. As such it is not defamatory.

[46]        As for the Facebook posting, the Court accepts that Ms Singerman did not wish for Ms Davis to know of her comments.  However, Facebook is a dangerous tool to express frustration.

[47]        Ms Davis blames Ms Singerman for the fact that her relationship with her eldest child has become difficult.  First of all, there is no evidence that the eldest child did see the posting.  Furthermore, the evidence shows that the relationship between the mother and the child was gravely affected several weeks and, even months before the Facebook posting. The relationship was already frail when Ms Singerman became involved in the life of the children.

[48]        Ms Davis testified that further to the posting, she became depressed and could not function at work.  This lasted for several months.  Ms Davis thought the posting was accessible to the public. 

[49]        The proceedings against Ms Davis are drafted in such a way as to blame Ms Singerman for the failure of her family life and the fact that her eldest child now refuses to see her.  The evidence before the Court is not to that effect. 

[50]        The relationship with the eldest child is a difficult one and this has not been caused by Ms Singerman’s action.  Whilst the Court accepts that Ms Davis became distressed when the posting was made, it is also evident that at the time, Ms Davis was going through a very difficult period in her life.  The relationship with her eldest daughter was failing and the divorce proceedings were taking their toll.[14]

[51]         The Court is not here to decide issues between Mr. Lew and Ms Davis.  It is obvious that the divorce is highly disputed and accusations of violence have been made by each side.

[52]        The Court finds that the publication of the Facebook posting caused distress but that the damages were limited. What is the value of the damages?

[53]        The Court will deal first with the request for punitive damages. Such damages may be awarded under the second paragraph of section 49 of the Quebec Charter[15]. The article reads:

49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.[16]

[54]        Plaintiff had the burden to establish an intentional act by Ms Singerman. In the case of Quebec (Public Curator) v.  Syndicat national des employés de l'hôpital St-Ferdinand[17], the Supreme Court defined what conduct can be seen as being intentional :

                        117. Unlike an award of compensatory damages, an award of exemplary damages under the second paragraph of S. 49 of the Charter depends not on the extent of the prejudice resulting from the unlawful interference, but on the intentional nature of that interference.  Since, as stated above, unlawful interference is the result of wrongful conduct that infringes a Charter right, it is therefore the result of that conduct that must be intentional.  In other words, for unlawful interference to be characterized as “intentional”, the person who committed the interference must have desired the consequences that his or her wrongful conduct would have.

                        118. From this perspective, in interpreting the expression “unlawful and intentional interference”, it is important not to confuse the intent to commit a wrongful act with the intent to cause the consequences of that act.  In this regard, the second paragraph of s. 49 of the Charter could not be any clearer: it is the unlawful interference — and not merely the fault — that must be intentional.  Accordingly, although certain analogies are possible, I think it is necessary to resist the temptation to compare the concept of “unlawful and intentional interference” under the Charter to the traditionally recognized concepts of “gross fault” or even “intentional fault”. 

[55]           Ms Singerman never wished for Ms Davis to see her comments. She had no intention of publishing the statement except to a limited number of people. It is true that within those people, there were a few who knew of Ms Davis - for example Mr Lew’s mother. However there was no intent to cause damage as defined by the Supreme Court.

[56]        Therefore an award for punitive damage is not justified.

[57]         The Court will now address the award for moral damages.

[58]        In the case of Sormany[18], Justice Yergeau awarded general damages for a sum of 20,000$ for a Facebook publication available to general Facebook users over a period of 4 days.

[59]        In Carpentier v. Tremblay[19], Justice Bérubé awarded a sum of 5000$ to the victim of a Facebook comment available to 42 individuals over 2 weeks.

[60]          In another case concerning the vindicative behaviour of an individual who published various derogatory comments on Facebook, the Court awarded 8000$ as general damages[20]. It was shown that the comments became known by co-workers of the Plaintiff.

[61]         In the case of 9080-5128 Québec inc. c. Morin-Ogilvy[21] , Justice Langlois awarded general damages of 4000$ to one Plaintiff for comments made available to 426 individuals on Facebook, over a period of 2 days. The evidence showed the comments were most likely seen by only a few users.

[62]        In conclusion, the Court finds that an amount of 5 000 $ will suffice to compensate moral damages suffered by Plaintiff.  There will be no award for punitive damages as there is no evidence that Ms Singerman acted with malice or with the intent to cause harm to Plaintiff.

[63]        FOR THESE REASONS THE COURT:

[64]        CONDEMNS  Defendant to pay to Plaintiff the sum of $ 5 000 with legal interest and additional indemnity provided by law as of July 13, 2011;

[65]        THE WHOLE WITH COSTS.