2005 January 11

Porter v. Robinson Sheppard Shapiro, Court of Appeal for Ontario, Docket: C42157, reversing 2004 June 29, Ontario Superior Court of Justice File No. 03-CV-243741 CM2

The Ontario Court of Appeal held that the evidentiary basis before the lower court judge was not sufficient to resolve the issue whether posting on the defendant law firm’s website of a communiqué summarizing a judgment of the Supreme Court of Canada in Whiten v Pilot Insurance Co. (2002), 209 DLR (4th) 257 was a publication on an occasion of qualified privilege.

In Whiten, the Supreme Court of Canada reversed a decision of the Ontario Court of Appeal and reinstated a $1 million jury award of punitive damages against an insurance company for bad faith denial of an insurance claim, in the process defining the basis on which punitive damages may be awarded by Canadian courts.

The lower court judge, whose summary judgment decision was reversed, had concluded that that defendant law firm had a duty, at least to their clients, to communicate the information, stating: “The Internet is probably the least expensive and most efficient means of conveying this information, not only to existing clients, but to potential clients, and to the insurance community, all of which have a reciprocal interest with the defendant in receiving the information.”

A settlement of this libel action during the third day of trial means that the issue of qualified privilege for website postings will not reach the Court of Appeal for determination in this case.

[NOTE: Although Chris Porter was mentioned in the Supreme Court of Canada’s judgment in Whiten v Pilot Insurance, Chris Porter was not the Pilot Insurance employee who denied Daphne Whiten’s insurance claim against Pilot nor was he in fact personally guilty of any bad faith towards Whiten. Chris Porter was not even called to testify at the trial in Whiten v Pilot Insurance. Chris Porter settled his libel action against the law firm on the third day of the trial. The settlement agreement contains certain terms which cannot be publicized on the Internet. Chris Porter has been unsuccessful so far in attempts to have the Supreme Court of Canada clarify certain passages in its judgment to make Chris Porter’s non-involvement clear to readers unfamiliar with the detailed evidence placed before the trial court.]