By Kevin Werner - METROLAND WEST MEDIA GROUP
An Ontario Superior court has ordered a new trial in the on-going legal fight between a Flamborough businessman and Mountain councillor Terry Whitehead.
In a 19-page decision released Dec. 21, Justice David L. Corbett, writing for the three-member court, backed an appeal made by Whitehead to set aside a decision that the councillor had defamed Roman Sarachman made by Justice James Turnbull, and send the case to a new trial.
“I conclude that the trial judge’s factual findings are not sufficient to enable this court to apply the correct law to the facts to arrive at a judgment,” stated Justice Corbett. “There must be a new trial.”
The court also granted Whitehead $12,300 costs, payable within 30 days.
Madam Justice Katherine Swinton and Justice Herman J. Wilton-Siegel agreed with Justice Corbett’s decision.
Roman Sarachman, who launched a $700,000 lawsuit against Whitehead over an email the councillor sent Sarachman in the early morning hours of May 8, 2008, said he is ready to participate in a new trial. Turnbull awarded Sarachman $28,000 in costs in the two-day civil trial held in 2011. Sarachman was also considering appealing the Superior Court ruling.
“No question, I’m ready for a new trial,” said Sarachman, who was disappointed in the decision. “It’s hard to believe (the decision). It’s a shame, a real shame. But there are a lot of suggestions for us to make a better case (in a new trial).”
Whitehead remained cautiously optimistic about the decision, especially with the court’s upholding his qualified privilege defence.
“The courts have created a large hill (for Sarachman) to climb,” said Whitehead. “It will be up to him to decide what to do. It’s just unfortunate he continues his dogged determination. I did apologize to him. This issue is much ado about nothing.”
Corbett stated a new trial needs to focus on whether Whitehead’s defence of qualified privilege can be defeated by malice. The court has given Sarachman 45 days to plead malice, in response to Whitehead’s qualified privilege defence.
Sarachman said “we have enough evidence” to use a malice argument against the councillor.
Justice Corbett stated that qualified privilege is a “complex” defence, but it is necessary so “political debates should not be stifled by ‘libel chill’. Mis-statements, overstatements and excessive language may be exposed and corrected through public debate, often in a more timely and effective manner than through the slow process of a civil action.”
Justice Corbett stated Turnbull “erred in his mis-stating the law respecting qualified privilege…”
Sarachman, though, disagreed with politicians using the qualified privilege defence, calling it “diplomatic immunity” because it prevents ordinary citizens from challenging their views.
“Taxpayers will continue to foot the bill for councillors,” said Sarachman. “It’s impossible for the average person to do anything. The time, and expense, and the system prevents people from seeking legal action against them. This will take another year, and more money.”
In the 2008 email, Whitehead stated that Sarachman was a “destructive, mean-spirited, irrational liar that does not deserve the time of day.” The councillor argued during trial he sent the email in the heat of the moment, four days after an emotionally-charged public meeting held in Flamborough over a debate about what the city should do about its slot revenue it had received from Flamboro Downs.
Turnbull, in his decision, ruled Whitehead’s language was “malicious, and demeaning, and defamatory.”
Justice Corbett stated, though, that Turnbull arrived at a conclusion about the impugned words based on an inference of malice, which was not argued in court.
Justice Corbett stated that “the impugned words are rather mild compared to other cases where courts have rejected a finding of intrinsic malice.” The judge, stated Justice Corbett, should have placed the email within the context of the discussion Whitehead held with Sarachman. Justice Turnbull also erred in not properly explaining why the words Whitehead stated in his email were “excessive, on their face, as to defeat the robust protection of qualified privilege…”
Turnbull, Justice Corbett pointed out, did not find that Whitehead spoke “dishonestly
or in knowing reckless disregard for the truth.” Justice Corbett stated Turnbull erred in “conflating objective and subjective standards” over the words and email. Sarachman argued in court Whitehead did speak dishonestly when he sent the email.
Whitehead argued at the Ontario Superior Court at Osgood Hall inTorontoin June, 2012, that Justice Turnbull’s decision did not meet the legal tests that the email was malicious. He also argued the issue of malice was not properly pleaded at trial.
Justice Corbett agreed, stating had the issue of malice been properly presented, the pleadings would have “directed the trial judge to the correct legal tests.” The court refused to dismiss Sarachman’s claim based on his failure to file an additional document in reply to the malice argument.