By Betsy Powell
Courts Bureau

September 4, 2008 – A recent out-of-court settlement provides a cautionary tale for anyone who has ever sent an email saying malicious things about someone, especially if untrue.

The case, which was resolved before it went to trial in May, also underscores that under Ontario law, a statement sent electronically can be defamatory – not to mention costly and embarrassing – even when transmitted to just one inbox.

In this instance, the recipient forwarded the defamatory email to two others, including the man at whom the “malicious gossip” was directed.

“Even though it only goes to one person, when you send an email to somebody, you never know who’s actually going to see it,” Toronto lawyer Michael Simaan said yesterday. He represented Rick Sullivan, who wrote and sent the email.

In the settlement, Sullivan agreed to pay Ronald Harrington $5,000 plus costs. The original statement of claim sought $50,000 damages.

Late last month, Superior Court Justice Robert Reilly, who was to be the Kitchener trial judge, ordered Sullivan to pay Harrington another $2,800 to cover disbursements. In his written ruling on costs, Reilly summarized the “undisputed facts” in the case.

On Sept. 26, 2005, Sullivan wrote an email referring to Harrington that stated, in part: “Yep, George told me he fired him for cooking the books. Thats (sic) why I said brave. Never took anything just tried to hide 3 million in losses so George wouldn’t find out. Actually did manage to conceal the losses for two years. Probably means he has a fairly good knowledge of accounting & artistic business practices. Not sure I’d want that on my resume though.”

Sullivan sent the email to Jason Wade, a director of operations for WesTower, a company Harrington had just joined and a major competitor of the company where Sullivan worked as a vice-president.

The George referred to in the email was George Patton, Harrington’s previous employer at another company.

Although Sullivan sent the email only to Wade, Wade “shared the email with Harrington, who then communicated it to George Patton,” Reilly wrote in his ruling.

That triggered a series of emails, including one Patton wrote and transmitted to Sullivan calling the contents of the original email slanderous. “Your email is completely false and unless you send a retraction to me I will seek legal advise (sic).”

His email was done in a “thoughtless moment,” Sullivan responded 10 minutes later. He apologized to Patton for engaging in “pure gossip.” A half hour later, Sullivan wrote Harrington he “never intended any harm” and that there “were and are many rumours circulating about your departure, and I should not have passed any of them on.”

Harrington, the judge noted, was not satisfied with the “retraction and apology” and called a lawyer.

Simaan said there is not a lot of case law in this area and generally most “defamation-type” cases are “intentional, where someone is trying to harm somebody, as opposed to a case where somebody mistakenly says something.”

In his statement of claim, the plaintiff Harrington alleged that he “has suffered and continues to suffer from tremendous stress and severe panic attacks due to the contents of the email.”

He alleged his professional and personal reputation were damaged. However, Reilly wrote no medical evidence was to be called at trial.

Without corroboration, the damages would be “modest indeed or perhaps denied completely,” the judge wrote, adding the plaintiff’s claim for $29,615.95 was “excessive in the extreme.”

Many people communicate in email and texting as if they are having a conversation, yet something tossed out casually can blow up when there’s a “written record,” Simaan said. Things that might have been meant in a “joking manner” can also get taken out of context.

“We would maybe think twice before we said certain things (in a letter), but with email it just seems to come out as easily as words come out of our mouth, which is what makes it dangerous.”