The reason? It could be defamation, as Annie Bisaillon found out in 2964376 Canada Inc v Bisaillon, 2012 ONSC 3113. Ms Bisaillon’s parents bought a dining room set from Prestige Furniture, which turned out to be badly damaged. The Bisaillons accepted the table as a loaner until a replacement could be found, but this didn’t happen and the manufacturer subsequently went out of business. Prestige attempted to repair the table (which was particularly affected) to no avail, and their offer to supply a non-matching table was refused. The buyers complained to the Better Business Bureau and the Small Claims Court, both of which concluded that Prestige had acted in good faith, but with the latter awarding modest damages and costs. The daughter then entered the picture. From her work e-mail account she sent 38 recipients a message with a likeness of Prestige’s logo, in which she stated that the retailer was ‘untrustworthy’ and ‘deceitful’, relying on the fact that her parents got neither a replacement table nor a refund, and on the Prestige workman’s statement that the original table could not be repaired. The judge found that Ms Bisaillon had admitted that her intention was revenge on her parents’ behalf. Her e-mail found its way to the brother-in-law of the owner of Prestige, who complained to Ms Bisaillon’s employer (representing that he worked for Prestige, which was not the case). She was disciplined by the employer for misuse of e-mail and sued by Prestige for defamation.

The judge reviewed the elements of defamation and concluded that the e-mail was defamatory. It had been published to third parties, and its content would clearly affect the reputation and business of Prestige. Did the defence of fair comment apply? No, for a variety of reasons (although the analysis is thin): it applies to matters of public interest, not to private commercial disputes; fair comment must be based on fact, not second-hand perceptions; it must be presented as opinion, not as facts; and it is unavailable where the statement is motivated by malice. Ms Bisaillon’s counterclaim that she had been defamed when her e-mail usage had been reported to her employer was dismissed: that communication relayed facts which the employer verified for itself before taking action.

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