When his right to freely express himself hits her right to protect her reputation in the professional world – #33

“He filed a complaint against me at the professional association which is absolutely unfounded.” “He even solicited the help of third parties to obtain my Facebook account in my home country…””He left numerous negative comments about my business on social media, such as Google Reviews.” How can I protect myself effectively from those attacks? Am I entitled to compensatory, moral and punitive damages?

No freedom is absolute. While a person has right to freely express himself, a person also has right to the safeguard of his reputation and to respect for his private life. These fundamental rights are protected by the Charter of Human Rights and Freedoms (“Charter”) and, for the most part, recognized by the Civil Code of Quebec (“C.c.Q.”) as civil rights that every human being is entitled to their full enjoyment. An unlawful interference with a charter protected right entitles the victim to obtain compensation for the moral and material prejudice resulting therefrom. If intentional, punitive damages may also be awarded.

This article aims at sharing the laws and the reasoning of the Superior Court of Quebec’s judgment on Tiutiun c. Kungsun, 2018 QCCS 5331. The facts of this case would also be briefly presented in this article.

Key Facts

In 2009, Ms. Tiutiun (“T”) immigrated to Canada. She is originally from the Republic of Moldova, where she obtained a university degree in architecture. She worked as an architect before she lived in Canada. After her arrival in Canada, T pursued graduate studies in engineering at École de technologie supérieure de Montréal.

In 2012, T has been employed by Bank of Montreal as a project manager to manage, direct, budget and oversee every stage of the construction and renovation projects undertaken by the Bank in the Canadian eastern provinces, including Quebec.

From April 2014 to December 2016, Mr. Kungsun (“K”) and T both resided at the Imperial House building. K enjoyed a worldwide and distinguished career as a senior project manager prior to his retirement in 2001.

In the winter of 2014, T become a member of the Board of Directors of the Imperial House building. At the Board’s request, T joined the Construction Committee which is responsible for the structural and safety issues of the building. T has to invest her personal time working on the Project to ensure that it was properly structured and that it proceeded according to plan.

Since then, K felt threatened by T’s influence in the Board and questioned T’s credentials, competency, ethics, transparency and the integrity and independence with which she managed the Project. K wrote several emails to the Board accusing T of being an imposter and manipulating the Board and sought her resignation. K investigated on T’s background by soliciting the help of third parties. K also continuously spoke of T in a disparaging manner with other co-owners of the building. K also mandated a lawyer, together with two other co-owners, to send to the Syndicate a demand letter putting the Board on notice not to consider a bid submitted in the context of the Project which was in charge of T.

In July 2015, T sent K two written notices demanding that he cease and desist defaming and harassing T. There was no change in K’s attitude or behavior.

In June 2018, a 5 days hearing was held in the Superior Court of Quebec at Montreal courthouse.

In November 2018, the Court considered that K’s statements and conduct towards T did interfere with her fundamental right to the safeguard of her reputation and privacy and amounts to a civil fault. And T is entitled for compensatory, moral and punitive damages.

Applicable Laws and Relevant Jurisprudence

Art. 4 of the Charter provides that every person has a right to the safeguard of his reputation.

Art. 5 of the Charter provides that every person has a right to respect for his private life.

Art. 9.1 of the Charter requires that in exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Quebec.

Art. 49 of the Charter stipulated that an unlawful interference with a charter protected right entitles the victim to obtain compensation for the moral and material prejudice resulting therefrom. If intentional, punitive damages may also be awarded.

Art. 3 and Art. 35 C.c.Q. recognize the rights to the respect of reputation and privacy as inalienable civil rights.

Art. 6 C.c.Q. stipulates that every person must exercise his civil rights with good faith.

Art. 1457 C.c.Q. stipulates that if a person causes injury to another person by civil faults, he would be found liable to make reparation for the injury, whether it be bodily, moral or material in nature.

Art. 1621 C.c.Q. determines the quantum of punitive damages.

The Supreme Court of Canada’s decision on Prud’homme v. Prud’homme [2002] 4 R.C.S. 663 reminds us that in order to succeed in defamation proceeding, the plaintiff must prove that the impugned remarks are defamatory and that the person who made the remarks committed a wrongful act, which may derive from malicious conduct or negligent conduct.

The Supreme Court of Canada’s decision on Quebec (Public Curator) v.  Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 SCR 211 reminds us that according to Art. 49 of the Charter, there will be unlawful and intentional interference when the person who commits the unlawful interference has “a state of mind that implies a desire or intent to cause the consequences of his or her wrongful conduct, or when that person acts with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause…”

Reasoning of the Court

1. Does K’s statements and actions towards T amount to civil faults?

Yes.

On one hand, K’s statements and conduct towards T interfered with her fundamental right to the safeguard of her reputation and amounts to a civil fault on his part.

First, K’s remarks towards T is defamatory. The Court applies objective standard to determine if the K’s remarks are defamatory. As confirmed in para. 34 of Prud’homme ([2002] 4 R.C.S. 663), the remarks should be considered defamatory if an ordinary person would believe that the remarks made, when viewed as a whole, brought discredit on the reputation of another person. In the present case, K’s verbal and written battle against T escalated after he was excluded from Committee given his failure to meet certain prerequisites as set by T in the Board. Despite the fact that T did not state that she was an architect member of the Ordre des architectes du Québec, K consistently and unwaveringly stated that T falsely represented herself as an architect, that she was an imposter manipulating and misleading the Board. K even knocked on the co-owner’s door to inform her that T was corrupt. Thus, the Court found that K’s conducts and statements are defamatory.

Second, the Court found that K’s malicious behavior towards T committed a wrongful act. The Court assessed the tone, the volume and the intensity of T’s emails and discussions with co-owners together with his accusations raised against T. It is clear that K had clear objective to discredit T and set her up in the eyes of her neighbours as a corrupt, unethical impostor no matter how many times T attempted to clarify her status with K. Thus, the Court found that K’s conduct against T is wrongful act.

Therefore, applying the criteria of the quantum of non-pecuniary damages set in the Supreme Court decision on Cinar Corporation c. Robinson, 2013 CSC 73, the Court condemned K to pay certain amount to T for the moral damages.

On the other hand, the Court found that K wrongfully harassed T and interfered with her private life.

K harassed T by persistently acting in such a manner as to instill fear that he would make T lose her employment or place her in a position where T would be obliged to defend herself before the Ordre des architectes du Québec. K also inquired third party to investigate on T’s background to find information that he could use to in his statements against her. Without authorization nor any bona fide reason, K contacted T’s current employer to verify her working status. K’s conducts caused stress and anxiety on T and gave rise to other physical symptoms, all of which were confirmed by an expert testimony. In December 2016, T decided to move out of the Building and terminated her contribution to the Board of the Building to avoid K.

Therefore, the Court confirmed that K’s conduct interfered with her private life and condemned  K to pay certain amount to T for the moral damages.

2. If so, is T entitled to compensatory, moral and punitive damages and for what amount?

According to Art. 49 of the Charter and the Supreme Court decision on Quebec (Public Curator) v.  Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 SCR 211, punitive damages may be awarded when the interference with fundamental right or freedom is “unlawful and intentional”.

In the present case, it is clear from K’s statements and his admitted “detective work” that his actions were intended to harm and embarrass T and to win the self-declared contest to show the co-owners that he was better.

Following the guidance set by the Court of Appeal in the decision on Genex communications inc. c. Association québécoise de l’industrie du disque du spectacle et de la vidéo, 2009 QCCA 2201, in awarding punitive damages, the Court considered what amount is sufficient to deter K to commit a fault of the same nature again and the gravity of K’s fault. The Court condemned K to pay T certain amount of punitive damages along with certain amount of compensatory damages for the fees that T had paid to her therapist.

Reflection

The KS lawyers won the justice for Ms. T, a young professional woman who recently immigrated to Canada attempting to establish her reputation in the professional world. In the meantime, as mentioned by KS lawyers, “the damages that you might expect a court to award you even if we win the case might amount to less than the cost of the legal fees”, especially when the defendant has not much asset. In such a case, “the question of whether to sue or not becomes less a financial question and more a matter of principle.” In such a case, we fight not only for an individual, but also for a better world that we believe in. In such a case, we let you to decide if your reputation is worth the cost of fighting for it.

I also notice that in some situations, litigation may not be the most suitable way to protect your professional reputation. As you know, dog bites man never makes the newspaper. Man bites dog is news. A patient may leave negative comments against a doctor online, which won’t catch much attention if the doctor has many positive comments from other patients. However, suing a former patient will make headlines.

(Reminder: The purpose of this article is to provide general legal information. It does not contain a full analysis of the law nor does it constitute a legal advice on the points of law discussed. To minimize the legal risk for your business, you must take specific legal advice from a lawyer on any particular matter which concerns you. Thanks for your attention. 😊)