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 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.

Welcome to my “man cave”.

Motta v. Clark, 2016 ABQB 211 (CanLII)cropped-img_0468.jpg

Once in a while, a case comes along provoking some sobering thought.  Motta v. Clark is one such case.   It raises the issue about the potential liability for personal injury damages arising from the seemingly simple act of inviting a friend over to the house for a social evening.

Ronald Clark invited his good friend Joe Motta over to his house on a Friday evening for a social night in Clark’s “man cave”, his garage.  There was a history of Clark entertaining friends in his garage and Motta had been invited to drink beer and socialize on numerous prior occasions.  While the evidence showed that both Motta and Clark had consumed a substantial amount of beer both in the time leading up to and during the evening in question, alcohol was found not to factor into what ultimately transpired.

Historically, when Clark entertained friends in his garage, it was his practice and that of his guests to urinate in the backyard when the need was called for.  They did not use the bathroom in the house.  On this particular night, however, Motta apparently needed to have a bowel movement and asked Clark if he could use the bathroom in the house.  Clark was happy to oblige telling Motta to use the upstairs bathroom.

For reasons unimportant to this review, Clark several weeks prior had disabled the motion sensor lighting meant to illuminate the back of the house at night in the vicinity of the outside entrance.  The house was in complete darkness with no lights turned on inside or out.  Motta was able to find the back door entry to the house.  He opened the door, stepped onto the landing inside the door with his left foot and began reaching around in the dark with his right arm for a light switch which he thought was on the wall to the left just inside the entrance.  He then brought his right foot through the door expecting to place it on the landing inside the door.  Instead, his right foot came down  on the first step of the staircase leading to the basement from the left side of the landing inside the back entrance.  He tumbled down the staircase suffering significant injuries.  At trial, only the question of liability for the injuries remained to be determined by the court.

Liability in this case, turned on the Occupiers’ Liability Act of Alberta, a statute very similar to occupiers’ liability legislation in other parts of Canada including Nova Scotia.  All versions of occupiers’ liability legislation across Canada impose some variation of the duty on the occupier of a property to “take such care as in all the circumstances of the case is reasonable to see the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or is permitted by law to be there.”

The court determined that it was reasonably foreseeable by Clark that a visitor entering the back door of his house in the dark and without any light on in or outside the house might, even if exercising care, risk falling down the basement stairs.  That reasonable foreseeability gave rise to a duty of care owed by Clark to Motta to ensure the house was reasonably safe for the purpose for which Clark invited Motta to use it.

The trial judge found that Clark breached his duty of care to Motta.  Clark had invited Motta to join him for a social evening in his garage.  He permitted Motta to access the Clark residence for the purpose of using the upstairs washroom.  Clark knew that the outside lights at the back door of his house had been disabled.  He also knew that there were no lights on in the house when he told Motta he could enter the house and use the bathroom.  Clark knew that Motta would have to reach out over the stairwell to get the light switch he needed to turn on in order to see where he was going.  The first step down the staircase to the basement was virtually on the immediate left as one entered the door from outside.  In all of this, Clark was found to have breached his duty to Motta to ensure that the house was reasonably safe under the circumstances to authorize Motta to enter the house and use the washroom.

On the other hand, the court also found that Motta contributed in some measure to the cause of his own injuries.  He could have returned to the garage to request Clark’s assistance in finding the lights in the house.  He had a lighter and a cell phone that he could have used to provide enough illumination to note the stairs and find the light switch.  In the end, the court apportioned liability 2/3rds to Clark and 1/3rd to Motta.

The case reminds us that unintended accidents can happen on our properties whenever we invite people to our homes for social reasons or otherwise.  While we all carry house insurance that in many cases will cover these accidents, there may be things we’ve done (e.g., like disabling motion sensor lights designed to illuminate important areas at night)that might possibly void our coverage.  Even with insurance protection, it is useful to be reminded from time to time, that when we invite friends over to our homes, we owe them a legal duty to ensure our properties are reasonably safe for their use.