Courtesy of a concerned member of the legal community.
A full copy of the JY’s response can be downloaded here.
Amy Eileen Hamm has a pending action against JY for defamation. Specifically, Ms. Hamm alleges that JY defamed her by claiming that Ms. Hamm sexually assaulted JY in a washroom at Surrey Provincial Court while JY was making an appearance on the weapons charges.
On 9 March 2020, JY filed his Response to Ms. Hamm’s Notice of Civil Claim (“NOCC”). Collectively, these are the pleadings. I will first explain how to prove defamation in BC and the available defenses. I will then attempt to walk the courageous reader through the Response to Civil Claim (“Response”) and explain how the law would apply to the Response.
As a general note, rules of civil procedure in BC tend to be honoured in the breach. Civil cases are virtually never ended through technicalities. JY will be given more leeway, though not unlimited leeway, as a self-represented litigant. However, BC Supreme Court is still “big-boy court”, resources are limited, and judges have a limited supply of patience. I will attempt to discuss both what the rules are and what JY can actually expect from the judge.
Elements of Defamation
Ms. Hamm must prove on a balance of probabilities (more likely than not) that:
- JY published a statement
- This is obvious – the tweet is still up.
- The statement was in reference to Ms. Hamm
- Also obvious – JY tagged her
- The statement was defamatory; it would lessen Ms. Hamm’s reputation in the eyes of a reasonable and right-thinking member of society.
- Allegations of sexual abuse are defamatory
At this point, Ms. Hamm has proven her case. She doesn’t need to prove that the allegations are false (contrary to some American laws). She also doesn’t need to prove any damages, though she will try to prove some damages for an increased award.
At this point, JY needs to prove, on a balance of probabilities, that at least one of these defenses applies. If he can’t, he must pay up. These are the three that JY attempts to raise.
- The statements are true.
- They aren’t.
- Even if Ms. Hamm took pictures, that is not sexual assault.
- The statements are subject to absolute privilege.
- The statements weren’t made in court or in Parliament.
- The statements are subject to qualified privilege.
- This might apply to the police reports
- It doesn’t apply to Twitter
- Ms. Hamm can probably show malice, which removes qualified privilege
Division 1 – Defendant’s Response to Facts
This is a standard part of every Response. The defendant must set out which facts they admit to, which facts they deny, and which facts are beyond their knowledge. This is done in reference to the paragraph numbers in the NOCC. The defendant will usually admit uncontroversial facts, such as the address of the defendant or the date of a car accident. For example, para. 1 of Amy’s NOCC would probably be admitted – it is common ground that JY was at the courthouse to appear on a weapons charge.
However, any facts that are at issue will be denied. In general practice, most facts are denied in the Response. It is very difficult to withdraw an admission made in pleadings. Parties will often make more admissions as more facts are uncovered; there are ways to force a party to admit something or face cost consequences.
It is odd that JY admitted to para. 2, which stated that Ms. Hamm was at the court in her capacity as a reporter. JY alleges in the Response (para. 6) that Ms. Hamm had no reason to be at the courthouse. These are obviously contradictory and you cannot make contradictory pleadings. A judge will generally believe an admission against a party’s interest, so JY’s admission to para. 2 will probably stand.
Admitting to para. 10 of the NOCC is just plain weird, given that it paints JY as a crazy screaming person.
This is where the defendant sets out their version of the facts alleged in the NOCC and denied by the defendant. They must refer to the paragraphs they listed above as being denied. This is not where you raise legal arguments or new facts. Most responses just contain a denial and says the plaintiff must prove everything and raises defences. Things that are not set out in the pleadings
Paragraph 1 doesn’t address Ms. Hamm’s allegation of defamation. It’s also not true, which is a poor start. Voyeurism isn’t sexual assault, though it’s still a crime. “Level 1 assault” isn’t a legal term, though it’s a sort of shorthand in the criminal-justice system. The rest is a counterclaim. Paragraph 7 is alleging that the defamatory statements are true.
A lot of this is evidence, not material facts. The distinction is complicated. A judge will tell JY what to remove and he will have one chance to amend and resubmit (self-represented litigants sometimes get a second chance). If the Response isn’t properly amended, the judge will strike out anything that shouldn’t be in the Response. The Response would be utterly hollow and would also stop JY from raising a lot of the issues at trial.
This is for additional facts. JY should be setting out the facts that, if believed, would successfully prove a defence like truth or privilege. He should not be citing case law here, though the citations he makes are the correct cases.
Paragraphs 1-14 are a counterclaim and need to be filed as a counterclaim. JY would probably get away with filing the counterclaim after the usual 21-day deadline. The basis for the putative counterclaim seems to be a combination of defamation and violation of privacy.
Paragraph 14 claims that his “stellar reputation” has been tarnished by Ms. Hamm. I will leave that description for the reader to ponder.
Paragraphs 15 and 16 claim damages that, again, should be in the counterclaim. JY demands extra damages for being a “transgendered woman” without an explanation. General damages compensate the plaintiff; they do not punish the defendant. The -ed suffix is also seen as derogatory by many transgender people, which shows how deeply JY is involved in trans activism.
JY is claiming aggravated and punitive damages in paras. 16 and 19. Can you guess where these claims should be instead? JY attempts to set out the legal tests for these classes of damages but doesn’t plead any material facts.
Part 2 – Relief sought
JY did this correctly, though you would usually write “NIL” on the lines.
Part 3 – Legal Basis
Pritchard would support his counterclaim. However, JY doesn’t cite anything that would offer a defence for defamation. JY instead tries to summarize his defences. As mentioned above, he cannot prove his allegations are true, because they are not. The sheriff’s phone search also discredits JY’s allegation.
There is no “free speech right” to post defamatory information. The Supreme Court of Canada has been very clear that freedom of expression is not a defence to defamation. It can affect the analysis of two other defences to defamation, but neither are remotely applicable to JY.
JY is half-correct in saying that it is not defamatory to report a crime. This is covered by qualified privilege, which protects a “duty to warn”. This applies to things like police reports and job references. However, it generally does not apply to Twitter postings. Qualified privilege doesn’t apply when the defendant acts with malice, of which JY seems to have plenty.
JY’s Response is not actually a response. It is mostly a counterclaim, which needs to be filed separately. The parts that respond to Ms. Hamm’s NOCC frequently admit liability, improperly include evidence and irrelevant information, are miscategorized, or are utterly incomprehensible