A recent Ottawa decision, 2964376 Canada Inc. (Ameublement Prestige Furniture) v. Bisaillon, provides some interesting guidance concerning the right and the wrong way for aggrieved consumers to deal with retailers with whom they have complaints.

In this case, Mr. and Mrs. Bisaillon purchased a dining room set from the Plaintiff, Prestige Furniture. 

The public interest is not synonymous with what interests the public.

The dining room set arrived in a damaged state.  Prestige made some repairs and offered to have the manufacturer either repair it to the satisfaction of the Bisaillons or replace it.  The Bisaillons insisted on a refund.

They complained the Better Business Bureau, which mediated the matter and determined that Prestige had acted in good faith.

Still unhappy, the Bisaillons sued Prestige in Small Claims Court in 2010.  After a trial that took up 124 pages worth of transcript, the trial judge concluded that the Bisaillons had been wronged to some extent and awarded them $750 in damages. 

This action involved a separate dispute.  It appears that the adult daughter of the Bisaillons took upon herself to transmit an e-mail from her place of work, the Canadian Museum of Civilization Corporation, to 38 people referring to Prestige as an “untrustworthy company” and “deceitful” among other things.  She encouraged the recipients of the e-mail to pass it along to others. 

The Plaintiff became aware of the e-mail when one of its recipients passed it along to the store.  One of the Plaintiff’s personnel telephoned the Museum of Civilization to complain that Ms. Bisaillon had used its resources to send out the e-mail.  The Museum investigated the matter, concluded that she had indeed misused the e-mail facility, and disciplined her.  She was asked to apologize to Prestige, but she refused to do so. She claimed that her motivation was revenge for her parents since, in her words, “truth is the best revenge”. 

Prestige commenced this action for damages for defamation, and moved for summary judgment.

The motion court judge had little difficulty finding that the e-mail had defamatory content. 

Ms. Bisaillon attempted to raise the defence of fair comment.  The elements of that defence are that the words complained of must be comment on the matter of public interest, the comment must be based on fact, and a reasonable person could honestly express such a comment on the basis of the proven facts.  In addition, the remarks must be recognizable as comment although they may include inferences of fact.  Finally, that defence is not available if it is found that the author of the comment was motivated by malice.

The trial judge went through each of these factors and found against Ms. Bisaillon on each point.  She determined that the issue at hand was a personal commercial dispute and did not involve a matter of public interest.  She pointed that “the public interest is not synonymous with what interests the public”.  Rather, “some segment of the public must have a genuine stake in knowing about the matter published”.  She concluded that there was no public interest in matters of customer service.

In terms of the substance of the e-mail, she declined to interpret the statements made as being in the nature of comment.  Attacks on the honesty, trustworthiness, ethics or greed of an individual or business are not comment.  In this case, the statements made by Ms. Bisaillon were phrased as facts.  However, the facts were not proven to be true.  They were simply personal attacks relying on a distortion of facts previously found in the Small Claims Court. 

In terms of the issue of malice, the judge observed that Ms. Bisaillon had refused to apologize, encouraged the recipients of the e-mail to republish, and seemed to use the word “revenge” liberally throughout the episode including in her own examination for discovery. 

On the question of the availability of summary judgment, the judge found that she was able to rule on the matter summarily because the facts involved in the underlying dispute had already been the subject matter of a Small Claims Court trial, the evidence of which was before her.  On that basis, she concluded that there was little conflicting evidence, no requirement for multiple findings of fact, and no significant numbers of witnesses.

On the matter of damages, the trial judge reviewed the well-established case law and noted that the relevant factors included the conduct of the Plaintiff, his position and standing, the mode and extent of the defamation, the absence or refusal of any retraction or apology, and the conduct of the Defendant from the time of publication of the defamatory statement to the moment of judgment.  She also observed that while companies are entitled to damages for defamation, in the absence of proof of special damages or a general loss of business, generally the monetary amounts are somewhat lower than for individual Plaintiffs.  In this case, she fixed the damages at $15,000.

This decision is instructive on a number of points.  Firstly, and rather obviously, people with commercial complaints should avoid airing them through the use of their employer’s resources.  Secondly, individuals must bear in mind that while it may be commonplace to complain to friends at a cocktail party about some real or imagined wrongdoing by a local retailer, conduct such as that of Ms. Bisaillon will be seen as going well beyond the threshold of acceptability, at least as far as the court is concerned.