Lawyer gets $1 for suit judge says should not have been filed

On­line post­ing was claimed to be defam­a­tory

National Post (Latest Edition) - - CANADA - KeiTh Fraser kfraser@post­media.com

A Vancouver lawyer has been awarded just $1 in dam­ages aris­ing from a defama­tion law­suit that a judge says the lawyer and the law firm she works with should never have filed.

Kyla Lee, who pro­vides le­gal ser­vices to Acu­men Law Corp. as an in­de­pen­dent con­trac­tor, rep­re­sented a client in Au­gust 2017 seek­ing a re­view of a 90-day road­side driv­ing sus­pen­sion, ac­cord­ing to a B.C. Supreme Court rul­ing.

Af­ter an ad­ju­di­ca­tor up­held the driv­ing ban, her client asked for a re­fund from Lee and the law firm, a re­quest which was de­clined.

In re­sponse, the client posted some com­ments that were crit­i­cal of Lee on the plain­tiffs’ Google Plus pro­file.

A lawyer from Acu­men asked the client to re­move the on­line post or face a defama­tion suit. When the post was not re­moved, the suit was filed.

Af­ter the client failed to re­spond to the civil claim, the plain­tiffs ap­plied for and were granted a “de­fault” judg­ment, which was handed down solely on the ba­sis that the de­fen­dant had failed to file a re­sponse and did not ad­dress the mer­its of the al­leged defama­tion.

B.C. Supreme Court Jus­tice Cather­ine Mur­ray, who was as­signed to as­sess whether the on­line com­ments amounted to defama­tion and war­ranted dam­ages, said state­ments must be con­sid­ered ob­jec­tively from the stand­point of a “rea­son­ably thought­ful, well-in­formed per­son.”

In her rul­ing in the case, the judge noted that the com­ments were clearly writ­ten by a “dis­grun­tled” client, were posted in the “heat of the mo­ment” and were writ­ten in poor English and con­tained spelling mis­takes and poor punc­tu­a­tion.

Mur­ray said she was not sat­is­fied that a rea­son­able, right-think­ing per­son would ac­cept the post as be­ing ac­cu­rate.

“Nor am I sat­is­fied that it would lower or even im­pact their es­ti­ma­tion of the plain­tiffs’ rep­u­ta­tion,” said the judge. “Fur­ther, while the com­ments are deroga­tory, I have my doubts as to whether they are defam­a­tory.”

If the com­ments were defam­a­tory, they were “at the low­est end of the scale,” added the judge.

In as­sess­ing dam­ages, the judge found that the plain­tiffs had pro­vided the court with lit­tle in­for­ma­tion re­gard­ing the im­pact of the In­ter­net post on them.

The judge said that in a time when vir­tu­ally ev­ery­one has in­stan­ta­neous ac­cess to the In­ter­net, many use it to ex­press their feel­ings with­out pause or re­flec­tion, and busi­ness peo­ple with Google Plus pro­files can­not ex­pect to re­ceive all favourable re­ports.

“As the adage goes, you can’t please ev­ery­one all the time. I add here that a lawyer must ex­er­cise re­straint when they re­ceive a re­view that dis­pleases them.”

The judge added: “In my view, this ac­tion should never have been brought.” To demon­strate the court’s dis­ap­proval, the judge awarded the plain­tiffs $1 in dam­ages.

Lee said that she was “not pleased” with the out­come al­though it was never their goal to “get a bunch of money.”

A LAWYER MUST EX­ER­CISE RE­STRAIN WHEN THEY RE­CEIVE A (POOR) RE­VIEW.

“Our big­ger con­cern was hav­ing the post re­moved. The other thing I dis­agree with is the judge’s char­ac­ter­i­za­tion of the facts.”

Lee said a “bunch” of facts that would have been be­fore the judge had there been a full hear­ing were not be­fore the judge, re­sult­ing in a rul­ing based on some in­cor­rect in­for­ma­tion.

She said the of­fend­ing post was writ­ten sev­eral months af­ter the ad­ju­di­ca­tor’s de­ci­sion and there­fore was not made in the heat of the mo­ment.

“So it’s frus­trat­ing that there wasn’t a bet­ter un­der­stand­ing of the facts that led to this,” said Lee. “The ques­tion is, is call­ing some­body the “worstest” lawyer ever, defam­a­tory? As far as I’m con­cerned, it is.”

The Vancouver lawyer said an­other of her con­cerns is that there is very lit­tle re­course for busi­ness own­ers to re­spond to neg­a­tive or false re­views posted on­line, but added that she doesn’t plan to ap­peal the judge’s rul­ing.

POST­MEDIA NEWS FILES

Vancouver lawyer Kyla Lee of Acu­men Law spe­cial­izes in im­me­di­ate road­side pro­hi­bi­tions and driv­ing law.

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