What did you just call me on Facebook!!

Pritchard v. Van Nes, 2016 BCSC 686

Facebook postings are free to make in the first instance, but can prove very costly in the end. Pritchard and Van Nes, a recent decision of the British Columbia Supreme Court, is a stark reminder about how serious the impacts of thoughtless social media postings can be, especially when they are defamatory in nature.

The Pritchard and Van Nes families became neighbours in 2008.  At the time of the events in question, Mr. Pritchard was a music teacher at a local school. He had been teaching at the school for the previous three years and by all accounts was well regarded.

The relationship  between the neighbours began to deteriorate in 2011 when the Van Nes’s installed a large fish pond along the rear of their property.  The two level pond included waterfalls that ran continuously both day and night.  The resulting noise from the waterfalls disturbed the Pritchards, especially at night when it interrupted their sleep.  After the Pritchards made a number of complaints to the local municipality, and to the Van Nes’s themselves,  the Van Nes’s commenced a series of petty harassments against the Pritchards as “payback” for the complaints.  The harassments consisted of such things as parking vehicles on the street  so as to partially block access to the Pritchards’ driveway.  The Van Nes’s permitted their dog to regularly trespass on the Pritchard property where it frequently defecated.   At another point, they set off a small explosion in their backyard during one of their frequent late night parties and claimed the explosion was from a stick of dynamite.

Ultimately, the relationship between the neighbours degenerated further with a series of of Facebook postings over a relatively brief period of time made by Ms. Van Nes about Mr. Pritchard.  The Pritchards commenced a court action against the Van Nes’s in nuisance for the noise from their pond and in defamation for the Facebook postings made about Mr. Pritchard.  The Van Nes’s declined to defend the law suit and default judgment was entered against them on the question of liability.  This review deals only with the defamation part of the law suit.

Ms. Van Nes’s first post accused Mr. Pritchard of hanging mirrors in the backyard outside of his house in order to monitor activities in the Van Nes backyard.  The only evidence put before the court established that Ms. Pritchard had hung just one ornamental mirror outside the back of the house as a feng shui decoration.  The evidence established there was never more than one mirror in the Pritchard backyard and that it was never used by the Pritchards to monitor the Van Nes property.

The post further accused Mr. Pritchard of videotaping the Van Nes children 24/7 while they played in their backyard.   Followup posts went further suggesting Mr. Pritchard was videotaping the daughters of friends that had come to stay with the Van Nes’s.  It was suggested that Mr. Pritchard’s behaviour was becoming obsessive and abnormal.  Ms. Van Nes posted that the behaviour was all the more alarming because of Mr. Pritchard’s position as a school teacher.  Eventually, the posts raised the suggestion, though it was never explicitly stated by Ms. Van Nes herself, that Mr. Pritchard might be a paedophile.  These posts prompted a small explosion of replies from Facebook friends variously referring to Mr. Pritchard as a freak, a creeper, a scumbag, a nightmare, a douche bag, mentally disturbed, a peeper, and a pedo.  Eventually the postings, re-postings and replies prompted one Van Nes Facebook “friend” to contact the principal at Mr. Pritchard’s school.  The email communication essentially advised the principal he had a paedophile on his hands in the person of Mr. Pritchard and that the school better take care of the problem before something happens.  No evidence was was put before the court to prove the allegation Mr. Pritchard was videotaping anything or anyone in the Van Nes’s backyard, let alone that he was videotaping children for any improper purpose.  In the end, all of the allegations made publicly against Mr. Pritchard had been made without any evidentiary support.

Mr. Pritchard was traumatized by the allegations.  He was no longer able to interact with his students as he once properly and comfortably did out of fear of being misinterpreted.  He had problems traveling with his classes on school outings.  He declined job opportunities out of fear the Facebook allegations would surface afresh.  He drastically reduced his extra-curricular activities with students. It was said his love of teaching was lost.  The evidence before the court also indicated that a couple of neighbours reacted to and commented negatively on Mr. Pritchard as a result of the false allegations made against him.

As stated above, the Van Nes’s chose not to defend the Pritchards’ action against them, insofar as the determination of liability was concerned.  Even though they had not attended the substantive portion of the trial, the Van Nes’s were permitted to and did attend at the court for the assessment of damages  and costs.  They were permitted to make submissions on these two subjects.

Ms. Van Nes was found liable not only for her own Facebook postings, but for all of the republications of her comments by Facebook “friends”, and for the correspondence between one of the “friends” and the principal at Mr. Pritchard’s school.  Mr. Pritchard was awarded $50,000 in general damages, $15,000 in punitive damages and costs of the court action.

It bears being reminded that no social media platform is the place to vent frustration, anger, or hurt in a way that could be considered defamatory.  Impugning the character of someone through allegations that have no evidentiary support can have far reaching serious and negative impacts.  Not only can we be held responsible for our own comments that may be defamatory, we can also be held responsible for the comments of every one else who replies to, re-posts or otherwise repeats our comments.

 

When a Director on a Non-Profit Board Goes Rogue

George v. The B.C. Wildlife Federation, 2016 BCSC 718 (CanLII)

IMG_0468Non-profit boards are often comprised of voluntary individuals elected to term positions at an Annual General Meeting of the particular non-profit.  In many, if not most cases, individuals elected to a non-profit board have a special interest in the purpose, goals and objectives of the particular board to which they are elected.  This is what usually attracts the individual to the non-profit in the first place.

Most non-profit organizations are incorporated in  Canada under provincial variations of a Society or Societies Act.   In George, the act in question was the Society Act, R.S.B.C. 1996, c.433, the British Columbia Act.  Nova Scotia has its own act, the Societies Act, R.S.N.S. 1989. c.435.  Regardless of the provincial jurisdiction involved, these acts articulate the basic law governing the incorporation of non-profit organizations, the conduct of business, and the ultimate wind up of non-profit organizations.  Both the B.C. and N.S. acts prescribe certain provisions that must be included in the by laws and memorandum of  association of all non profit organizations, including provisions for the election and removal of directors.

Directors are generally elected at the Annual General Meeting of the non-profit organization by the membership.  In both B.C. and in N.S., a director can only be removed from the board by special resolution.  A special resolution requires at least 75% of the members entitled to vote at a general meeting of the society, voting in favour of the director’s removal.  Where a non-profit organization fails to act in accordance with its by laws and articles of incorporation, its actions and decisions can be challenged in court.

In George, the non-profit in question was the British Columbia Wildlife Federation (the “Federation”).  An issue arose around email correspondences and other verbal communications between the Vice President of the Board and at least two employees of the Federation.  In short, the email correspondences were of an inappropriate nature, sexual in orientation and directed to both a male and a female staff member.  When the Vice President was asked to cease and desist from using the Federation’s email server for sexually oriented email correspondences and from speaking inappropriately with staff, he failed to co-operate.  This was even after being informed in writing that he was in conflict with the Code of Conduct governing the behaviour of directors on the Federation Board.  He was further advised that if he continued in violation of the Code, the matter would be remitted to the full Federation Board for appropriate action. The Vice President essentially ignored the warnings and continued the impugned behaviour.

At a meeting of the full Board, a motion was passed by a simple majority of directors to suspend the Vice President from his Board responsibilities for the remainder of his term, which was three months.  The Vice President challenged the Board’s decision in court.  He argued that the suspension was, in fact, a removal and that the motion passed by the Board was not legal or within the authority of the Board.  His position was that a removal required  a minimum three quarters majority vote of the members called to a general meeting of the Federation and not a simple majority vote of Board members.

The Federation argued that the suspension was not a removal and that it only prevented the Vice President from performing his functions as an officer and director of the Federation for the remainder of his term.  Officially, the Vice President continued as an officer and director of the Federation, but without the ability to exercise his duties and responsibilities.  Furthermore, the Vice President was not precluded from running for election again at the next Annual General Meeting of the Federation.  In determining the Federation Board had not acted for any improper purpose and that it had acted in good faith, the court decided in favour of the Federation and declined to intervene in its disciplinary action with respect to the Vice President.

Problems with individual directors on non-profit boards are not uncommon.  Because they are generally elected by the membership, directors can only be removed by the membership.  As stated earlier, both in B.C. and N.S., a minimum three quarters majority of the members must vote in favour of the removal.  This can make removal of a director quite difficult.  Discipline of a director, on the other hand, who has acted contrary to a code of conduct, or contrary in some other way to the interests of the organization he or she is a board member of, is confirmed by the court in George to be well within the purview of the  board.  Equally important, the court confirmed in George that suspension of a rogue director’s responsibilities is a step that, if and when warranted, can be taken by a non-profit board of directors on a simple majority vote.

The B.C. court’s decision in George,provides very helpful direction for all non-profit organizations in dealing with elected directors who, even after being warned, continue to act in ways contrary to the best interests of the non profit.  Suspension may be as practically effective as removal, without the formality of a three quarters majority vote of the general membership.

 

When Council Rejects Staff Planning Recommendations Only One Question Ultimately Matters

Scotia Legal Services Inc. (Re), 2016 NSUARB 31 (CanLII)

Municipal governments are only permitted by law to act within the authority and power granted by legislation.  When a municipal government makes a planning decision that is not within it’s legislative authority, that decision can be challenged legally, most often by way of an appeal to the Nova Scotia Utility and Review Board (the “NSUARB”).

The Municipal Government Act in Nova Scotia is intended to and does provide municipal governments with broad authority to encourage and facilitate, sound and sustainable community planning, using such tools as Municipal Planning Strategies (“MPS”) and Land Use By Laws (“LUB”).  Once an MPS is in place, however, a municipal government must, in all of its planning decisions, reasonably carry out the intent of its MPS.  In fact, when an appeal of a planning decision of council is taken to the NSUARB,  the question of whether council’s decision reasonably carries out the intent of the MPS, is all that really matters to the outcome of the appeal. Scotia Legal Services Inc. (Re) provides an effective reminder of what can happen when a council loses sight of this simple principle and the awkward position that planning staff can sometimes be put in as a result.

It is important to remind ourselves  that municipal councils are not obligated to agree with or implement every staff planning recommendation. There may be, and sometimes are, legitimate reasons why a council might be disinclined to accept a staff planning recommendation, but those reasons cannot run contrary to the intent of the MPS.  Even if council’s rejection of a staff planning recommendation is well reasoned, rational, and perhaps even perceived on some level to be in the best interests of the community, its decision is subject to being overturned on appeal to the NSUARB if the decision fails to carry out the intent of its MPS.

Scotia Legal Services Inc. (“Scotia”) owned a property located on Gaspereau Avenue in the Restricted Commercial Zone (as defined under the Town of Wolfville’s (the “Town”) MPS).  The Restricted Commercial Zone permits a home owner to use a portion of the home for certain commercial uses.  The restricted commercial uses must be of the type and nature that they are compatible with or complementary to a residential neighborhood.

By way of a Development Agreement entered into between Scotia and the Town in 2005, Scotia expanded its Gaspereau Avenue building to comprise several residential apartments and two commercial office spaces.  The residential units rented with relative ease, but Scotia did not succeed in maintaining occupation of the commercial office spaces and they remained vacant for a significant periods of time.

Scotia then applied to amend the 2005 Development Agreement seeking to convert the two commercial office spaces to a fourth residential apartment.  The Town’s Municipal Planning Strategy permitted multi-residential unit buildings in the Restricted Commercial Zone, but limited such buildings to a maximum of four residential units per building.

Town planning staff reviewed Scotia’s application to amend its Development Agreement.  It was determined the proposed amendment was consistent with the intent of the MPS as the type of use contemplated by the amendment was permitted within the Restricted Commercial Zone.  Staff recommended approval of the proposed amendment.

When the amendment came before Council it had three essential options for responding to the staff recommendation. Council could pass the recommended motion,  amend and then pass the motion, or Council could vote to defeat the motion.  Regardless of which option Council chose, the intent of its MPS had to be kept clearly in the forefront of its decision making.

In Scotia Legal Services Inc. (Re), Town Council chose to reject planning staff’s recommendation and defeated the motion to approve Scotia’s amended development agreement.  In its reasoning for doing so, Council argued that the “intent” of the Restricted Commercial Zone in Wolfville’s MPS was to expand certain commercial uses and strengthen the downtown commercial business district.  Council’s position was that the proposed amended development agreement failed to carry out the intent of the MPS in its attempt to convert commercial space to residential space.  While the reasoning of council was clearly not capricious, and appeared in all respects to be carefully thought out and intended for the benefit of the Town, the NSUARB determined the decision failed to reasonably carry out the intent of the Town’s MPS.  The Restricted Commercial Zone expressly permitted the type of development contemplated by Scotia. Consequently, to refuse to approve the amendment automatically meant failure to carry out the intent of the MPS.

The peculiar, and perhaps awkward position for planning staff was that the evidence upon which the NSUARB made the determination that council had failed to reasonably carry out the intent of its MPS, had to be elicited from the same staff who had recommended approval of the amendment in the first place.  Not the most comfortable position for any employee to be put in.

Another important take away from Scotia Legal Services Inc. (Re) is that the NSUARB has no authority to substitute its opinion of what is “good planning” for that of council’s.  The NSUARB can only intervene where it is shown that council has made a decision that fails to reasonably carry out the intent of its MPS.