Brisette v. Cactus Club Cabaret Ltd., 2016 BCSC 459
In Brisette, the plaintiff sued the Cactus Club restaurant chain a server and a manager for defamation. He lost the case and, it appears, cost him his job as well. According to the Vancouver Sun, 22 March 2016, the Company announced:
“In response to recent events, [the Company’s] senior executives and [the Plaintiff], (senior vice president of health and safety), met today to discuss [the Company’s] employee code of conduct and senior executive expectations.”
“As a result, [the Plaintiff] has tendered his resignation, which [the Company] has accepted. [The Company] thanks [the Plaintiff] for his years of service and contribution to the company.”
During an evening at a Cactus Club restaurant patio, a party of clients and executives of the Company consumed food and beverages, including alcohol. It appears that the Plaintiff consumed a fair amount of alcohol and was observed to be inebriated.
The server alleged that the Plaintiff called her “Kitty Kat” and touched her inappropriately. He also alleged that the manager, who told the members of the party that the reason the restaurant stopped serving, and asked the party to leave, was the conduct of the Plaintiff. The Plaintiff denied the allegations.
On an application for summary judgment by the Defendants, Madam Justice Gropper accepted the Defendants’ version of the events. The decision was based on affidavits despite the conflicting nature of the evidence.
The Defendants relied upon justification, that the words complained of were true or substantially true, or that the communication was made on an occasion of qualified privilege. “A defence of justification is made out if the main charge or gist of the defamation is proven.” Qualified privilege rebuts the inference of malice. The defence may apply in circumstances when” when a person is asked a question about a matter by or on behalf of someone who appears to have a legitimate interest in knowing the answer, the person is under a duty to answer and that the occasion is privileged.” The person must speak honestly. Qualified privilege may be defeated “the dominant motive behind publishing the statement was actual or express malice” or “statement went beyond what was germane and reasonably appropriate in the circumstances.”
Madam Justice Gropper found that the Defendants evidence credible and, it is fair to say, the Plaintiff’s less so. She found that the Defendants proved both justification and, in the alternative, qualified privilege.
She found that the manager’s to the members of the party covered by qualified privilege:
“71. I find the interaction between [the mananger] and the individuals at the table to be covered by qualified privilege. A person or ordinary intelligence and moral principle, or the great majority of right-minded persons would have considered [the manager] to have a duty to communicate the information. The manager] began speaking to the attendees at the table when some of the attendees began asking why they could not continue and after [the Plaintiff] declared that it was “bullshit” and left the table. I find that [the manager] replied to these inquires to a limited group of people who had an interest in receiving that communication. Her statement was reasonably necessary for her to perform her duty as manager of the Cactus Club and to protect the employees under her watch.”
The court did not find the manager’s statements motivated by malice as suggested by the Plaintiff.