Last year, Paws R Us, a self described "commercial dog kennel" operating out of Quebec was in court suing one of their customers, Lorie Gordon, for defamation because she had gone online and written several postings claiming they were a puppy mill.
Let's do a quick review. According to testimony presented at the trial in Ottawa:
Paws R Us produces over a thousand pups a year.
Paws R Us kennels hundreds of for sale dogs at a time.
Paws R Us sells puppies from over 20 different breeds.
Paws R Us has a staff of only 7 to 11 adults.
Paws R Us has had complaints about them sent to the mayor of the municipality where Paws R Us is located that they sell sick dogs.
Paws R Us is considered a puppy mill by Alanna Devine, the Executive Director of the Montreal SPCA as well as Daniel Davenport, an investigating officer for the Montreal SPCA.
Here's Davenport's testimony as recorded by the defense:
Defendant’s witness Daniel Davenport testified that he carries officer-of-the-peace status in Quebec. He is an investigating officer of the Montreal SPCA and has been for twenty years. He testified that he visited the facilities of Paws-R-Us five times until he was refused entry in February 2005. He explained that in Quebec there are several organizations that govern the breeding of dogs. He testified that during his inspections of Paws-R-Us, he did note a number of health concerns, such as open sores on the dogs, extremely dirty kennel areas, and over-crowding. He testified that with each visit he would examine paper records and from the documents could say that there was 80-85 different breeds of adult dogs. When asked about the number of puppies, Mr. Davenport testified that from May 1999 to March 2000 he received reports from the attending veterinarian of vaccinations of 412 five-week old puppies that were followed until they were 12 weeks old. He also testified that on one day in April 2000 the attending veterinarian reported vaccinating 312 puppies 6-weeks of age or older. Mr. Davenport never testified that he counted all of the dogs in all of the buildings at Paws-R-Us. He did state that at the times that he inspected the operation, there were many dogs and they were kept in sub-standard conditions. When asked if they were a puppy mill, he responded that in his professional opinion Paws-R-Us was a puppy mill at the times that he did his inspections. He further testified that just because he believed that they were a puppy mill, in Quebec that is not enough to file charges. He explained that in Quebec the test that they must meet is found in the Criminal Code of Canada and the dogs must be abused to the point of life-threatening conditions. Mr. Davenport was asked to confirm that he believed that Paws-R-Us was a puppy mill and he confirmed in examination and in cross-examination that Paws-R-Us was a puppy mill.
So now what's the first thing you think of when you hear mention of Paws R Us?
Well, you'd be wrong.
Paws R Us is not a puppy mill, at least according to Deputy Judge M. Galligan.
The decision came back two days ago. Lorie Gordon lost. She now owes Paws R Us $14000 on top of legal expenses.
In his decision, the judge apparently placed much weight on PIJAC's definition of a puppy mill as well as the opinion of PIJAC inspectors. PIJAC, "the Pet Industry Joint Advisory Council of Canada is the voice of the Canadian pet industry. As a not for profit, member based organization, PIJAC Canada advocates on behalf of the Canadian pet industry."
Let's take a look at this definition written by the National Companion Animal Coalition. According to the PIJAC website, the National Companion Animal Coalition (NCAC) was formed in 1996 to promote socially responsible pet ownership and enhance the health and well being of companion animals. It is comprised of representatives from the Canadian Veterinary Medical Association, the Canadian Federation of Humane Societies, the Pet Industry Joint Advisory Council of Canada, and the Canadian Kennel Club. That's some big names there so why have I never heard of the NCAC before? Have you?
Here's their puppy mill def:
A puppy mill is defined by the NCAC as a high-volume, sub-standard dog
breeding operation, which sells purebred or mixed breed dogs, to unsuspecting
buyers. Some of the characteristics common to puppy mills are:
a) Sub-standard health and/or environmental issues;
b) Sub-standard animal care, treatment, and/or socialization;
c) Sub-standard breeding practices which lead to genetic defects or hereditary disorders;
d) Erroneous or falsified certificates of registration, pedigrees, and/or genetic background.
Note: These conditions may also exist in small volume or single-breed
establishments.
Well, that kind of sounds good but what's it all mean? What's "high-volume"? 100? 1000? What's "sub-standard health and/or environmental issues"? What's "sub-standard animal care, treatment, and/or socialization"? What are the specifics of any of these "definitions" and if there are no specifics whose interpretation of them is correct?
CBC's Marketplace did a piece on puppy mills a while back and in it they confront PIJAC mouth Louis McCann. Here's the whole segment. Listen to McCann at 10:27 and 12:50.
So when McCann, testifies at the court hearing in support of Paws R Us, and says, "what I found did not support a designation of a puppy mill" how much sway does that have over you?
The judge also relied on testimony provided by two veterinarians hired by Paws R Us. Doctor Aliva Jong (from the decision) stated categorically that the Plaintiff's facility is not a puppy mill.
Doctor Sylvie Choquette testified that the Plaintiffs' facility is not a puppy mill.
On the other hand, the defendant's witness, vet Dr. Judy Hawthorne testified that though she had never visited Paws R Us, the consensus in her veterinarian network was that Paws-R-Us dogs have many genetic disorders and that it is more than likely Paws-R-Us is a puppy mill.
Apparently, Dr. Hawthorne's testimony didn't count as much as the ones expressed by the vets who were hired by Paws R Us judging by the final outcome.
Both sides in the case also provided testimonies from several customers of Paws R Us either in support of the pups sold to them or had complaints against Paws R Us with regards to health issues.
Here are two such testimonies, as recorded by the defense, one in support of Paws R Us and one against:
Plaintiffs’ witness Robert Quesnel testified that between purchases for himself and other members of his family, each of which were at discounted prices, all of their dogs came with a one-year warranty to replace the dog if it died within the one year period. He said that he received a bill of sale for each of the dogs but did not recall receiving any other documents such as a health record. He said that there were lots of dogs, but he did not consider them a puppy mill because of the one-year guaranty that came with each dog. He was aware of the postings, did not agree with the postings, and he said that he would purchase from them again if the price was right. Thus, for this witness, the postings had no effect and did not interfere with any economic interests of the plaintiffs.
Defendant’s witness Wendy Johnson, a member of the Judge Advocate General’s staff, testified that she visited Paws-R-Us with her daughter and her niece. She said that she went there to purchase an Airedale pup. There were no Airedale puppies ready at the time of the visit. She did go through the area where the puppies were kept and started to go through one of the barns to see the adult Airedales. She said that she could not stand the conditions under which the dogs were housed: there were many dogs in small areas and the smell was unbearable. She did order an Airedale puppy. When the pup was delivered it had a bad eye infection and went blind as a result. She was refunded $200.00 of the $800.00 price of the puppy because of the eye infection and the fact that the pup lost the sight in that eye. The pup was diagnosed with severe hip dysplasia before it was a year old, which was also reported to Paws-R-Us. Ms. Johnson brought her entire file on the dog including the complete veterinary records. During her testimony she referred to her veterinary records, but Mr. Barrick [counsel for plaintiffs] objected to them being admitted into Court as an exhibit. Ms. Johnson testified that from what she saw and what she now knows about puppy mills, there is no question in her mind that Paws-R-Us are a puppy mill.
But what does this prove? In my eyes, setting up satisfied customers vs dissatisfied customers, only proves that some people are willing to do business with Paws R Us regardless of what they are.
So, let's see. If Steve and Joan and Mark walk into a restaurant and order separate meals and eat and get food poisoning but Tim and Nigel and Sam walk into the same restaurant and order meals and eat and are fine, does that make the restaurant a safe place to eat?
From the decision: Although there was evidence of incidents of occasional health problems, some must be expected in a facility accommodating hundreds of animals. Such a facility must be attended with unusual levels of barking noise and with foul odors from time to time, depending on the climatic conditions. The Plaintiffs have testified that they constantly and carefully attended to the dogs and have never knowingly sold animals with any disease, or genetic problems.
Having reviewed all of the evidence led by the parties, I find that the Plaintiffs' facility, known as Paws R Us, was not a "puppy mill" within the definitions which have been used for purposes of description, and that the Plaintiffs' facility is wrongly described in that respect.
Uh huh.
Once upon a time, I had a law professor who started his first class every semester by saying that the law is not justice and never to confuse the two.
Indeed.
* * * * *
Here's the complete trial testimony as recorded by the defense:
Introduction
The Court heard six days of evidence respecting this matter. Perhaps the most striking was the video tour of part of Paws-R-Us facilities videotaped in 2008, with commentary by Charlene Labombard telling the Court how much the company has enhanced and expanded the facilities since the relevant time period (2002 – 2006) when Lorie Gordon is alleged to have defamed their character.
The relevant time throughout the deliberations of the proceedings in this matter before the Court is 2002-2006, as this is the time period when my client, Lorie Gordon, purchased Kaiger, her first sick dog (April 2002), who had to be euthanized in April 2004, and received Blaze, her second sick dog (April 2004), which Paws-R-Us released to her with demodetic mange. Blaze was also diagnosed with idiopathic epilepsy, with his first seizure occurring on December 18, 2005.
In 2004, Lorie Gordon made considerable efforts to talk to the plaintiffs about the demodetic mange as it could have been life threatening for her new dog, Blaze. The plaintiffs did not answer the questions Ms Gordon asked them, even though the plaintiffs were told that Blaize’s veterinarian, Dr. Judy Hawthorne, was attempting to identify the source of the problem and resolve it. What Lorie Gordon did receive from the plaintiffs was a letter, dated August 2005, from their lawyer, Roy Legault, instructing Ms Gordon not to call or communicate with the plaintiffs under the threat of litigation should she attempt to contact the plaintiffs again.
The questions that this Court must answer are:
a.Did Lorie Gordon speak falsely about the plaintiffs, Paws-R-Us, in her statements posted on the internet?
b.If the Court does find that Lorie Gordon spoke falsely about the plaintiffs, did Lorie Gordon adversely affect the economic interests of the plaintiffs?
and,
c.Regardless of the Court’s findings in (i) and (ii) above, is Lorie Gordon entitled to her veterinary expenses for treatment of the two sick dogs received from Paws-R-Us, taking into consideration that both dogs had genetic disorders that ought to have been known by a responsible breeder?
It is the defendant’s position that she did not speak falsely in any of her postings, but, indeed, spoke the truth. Further, the defendant takes the position that Charlene Labombard, in describing the expansion and enhancements to the Paws-R-Us facilities with the aid of the 2008 video, has, rather than suffering any economic losses since the relevant time, improved and expanded the Paws-R-Us puppy business.
Question of Defamation
To defame the plaintiffs, Lorie Gordon had to publish or post false statements. The law of defamation arose even before the existence of England's 16th century Star Chamber, and perhaps is best described by Lord Diplock in Horrocks v. Lowe that “English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbour”. (See Defendant’s Index of Authorities, Brown, Tab 3 at page 4-3)
Brown comments:
The law of defamation gives meaning and content to that commandment. It affords redress against those who speak defamatory falsehoods. Its purpose, however, is to protect the reputation that a person possesses in the general community and not the esteem with which the plaintiff regards himself or herself.
(Defendant’s Index of Authorities, Brown, Tab 3 at page 4-4)
Brown continues:
Our courts are seldom satisfied with a simple definition of what is defamatory. They often address the issue by asking whether the publication has the tendency to adversely affect, disgrace, injure, or prejudice the reputation or character of the plaintiff? Does it tarnish his good name, or diminish or lower the good opinion, esteem, or regard which others have for him, or the good will or confidence in him, or excite adverse feelings and opinions about him, or cause persons to think worse of him, or cause him to be detested, despised or, perhaps, pitied, or regarded with feelings of fear, dislike or disesteem, or cause the general public or “ordinary decent folk in the community, taken in general, to think the less of him”?
(Defendant’s Index of Authorities, Brown Tab 3 at pages 4-8 to 4-10)
The defendant maintains that her statements were true at all relevant times. The Court, to conclude that the defendant’s statements were defamatory, must:
d.be satisfied that the statements made by Lorie Gordon were false;
e.be satisfied that the statements, if false, were not made by other persons, prior to the relevant time respecting the matter before the Court; and,
f.be satisfied that the statements, if false, made by Lorie Gordon, and no others, did adversely affect the reputation of the plaintiffs.
Ms Gordon stated that she received two sick dogs from the plaintiffs, Paws-R-Us. Evidence was presented both by Lorie Gordon and by her veterinarian, Dr Judy Hawthorne, that both dogs Ms Gordon received from Paws-R-Us had severe medical conditions that could only be genetic in nature.
Witnesses
In his written submissions for the plaintiffs, Mr. Barrick gives a somewhat distorted view of the testimony of the witnesses. Of course, he is presenting the evidence in the best light for his clients, while my submissions will be presenting the recall of my client and our witnesses as to their testimony. Without a transcript of the preceedings, we each, including the Court, can only rely on our notes and memory. I did, however, provide the defendant's witnesses with Mr. Barrick's notes about their testimony and they compared it with what they recalled stating in Court. The following paragraphs are presented to help clarify for the Court what my client, who was present for the entire six days, and our witnesses recall of their testimony.
Plaintiffs' Witnesses
The Plaintiffs' first witness was Sylvie Choquette, DVM, who stated that she is at the fascilities of Paws-R-Us every two weeks for between two to four hours. She stated that she does not see the adult dogs. Her role is to perform examinations and administer the inoculations for the puppies, as required. According to Mr. Barrick’s submissions respecting this witness, she spends about five minutes with each pup. Using simple math, if a site visit averages 3 hours, this witness would see at least 120 puppies in a four-week period, or 1560 puppies over the course of a year. This witness also stated that she does not administer any of the annual inoculations recommended by the Canadian Veterinary Medical Association Code to adult dogs. In fact, she stated that it was her understanding that the owners of Paws-R-Us must use another veterinarian for the adults as she only cares for the adults in emergency situations. When this witness was asked in cross-examination about testing for genetic disorders, she stated that she does none of that for Paws-R-Us. When asked about this requirement in the Canadian Veterinary Medical Association Code, she stated that as a veterinarian in Quebec, she does not follow that code.
Plaintiff’s witness Kim Beaudoin stated that she did read the posted statements of Lorie Gordon, among others. She stated that as a result of all of the comments, she conducted her own internet research to inform herself about what constitutes a puppy mill and then attended at the Paws-R-Us facilities. She said that she made up her own mind about Paws-R-Us and purchased puppies from there. In her description of the adult kennel areas she stated that there were several dogs of different sizes and breeds in the same kennel areas. She did say that she would purchase from Paws-R-Us again and thus, the postings of Lorie Gordon had no impact on her purchasing from Paws-R-Us or Paws-R-Us' economic interests.
Plaintiffs’ witness Marietta D’Alessio, advertising manager for the Ottawa Sun in which Paws-R-Us advertises, gave testimony that she purchased two puppies from Paws-R-Us. She said that she visited the facilities after a complaint to the Sun that they were publishing advertisements for a puppy mill, naming Paws-R-Us. She said that the caller did not identify themselves but she took it upon herself to give notice and visit the Paws-R-Us facilities. Regardless of the economic interests of the Sun, this witness was aware of the articles printed in the Ottawa Citizen and the postings on the internet stating that Paws-R-Us are a puppy mill. She testified that she has no qualifications in animal husbandry, but in her opinion they were not a puppy mill and she purchased two puppies from Paws-R-Us. These purchases were after the postings of Lorie Gordon and go to demonstrate that any postings of Lorie Gordon had no adverse effect on the economic interests of Paws-R-Us.
Plaintiffs’ witness John Rollin testified that he saw the expansion of the facilities of Paws-R-Us from 1998 to 2006. The testimony of the previous witnesses and that of the plaintiffs themselves were that several dogs were kept in a kennel area, with dogs only being divided by size within this area. Mr Rollin's testimony differed, however, for he testified that he only saw one large dog in each of the large dog kennel areas. When showed the pictures of the kennels provided by the plaintiffs, he stated that he could not make out how many dogs were in the areas because the images were not clear. This witness also testified that he was aware of Ms Gordon's postings and disagreed with them. He said that he did purchase dogs after the postings by Lorie Gordon and he would purchase again. According to this witness, Paws-R-Us expanded their business and did not suffer any economic loss, because he stated that he did and will purchase from Paws-R-Us again.
Plaintiffs’ witness Sean O’Neill testified that he was aware of the postings on the internet about Paws-R-Us, but this did not prevent him from going to the facilities and purchasing two dogs: one in 2004 and the other about a year later. He testified that the two dogs were purchased for his parents in Sudbury. He also testified that both of the dogs purchased for his parents have been diagnosed with serious genetic disorders, but he did not recall the specific diagnoses. He did say that his parents veterinarian considered the disorder serious enough to contact Paws-R-Us to inform them of the genetic disorder. When asked if he would purchase from Paws-R-Us again he said that he would. Even being aware of the postings and purchasing two dogs that were subsequently diagnosed with serious genetic disorders, this witness testified that he would purchase from Paws-R-Us in the future. Thus, there was no adverse effect on this witness by the postings and no economic loss as a result of the postings for Paws-R-Us.
Plaintiffs’ witness Chantel Moore testified that she was aware of the postings on the internet prior to going to Paws-R-Us. She did testify that she was involved with the registered therapy animal program and specifically she was involved in the READ program. She testified that, from her visit, she was satisfied that Paws-R-Us did not fit the characteristics of a puppy mill. She did testify that there were many dogs, with several in the kennel area. She is satisfied with the dog that was donated to her by Paws-R-Us, and said that this dog is in training to be a therapy animal and his evaluations are going well. Contrary to the assertions of Mr. Barrick, this witness did not state that this dog is currently (at the time of giving testimony) through the testing process and was registered as a therapy dog in the READ program, stating instead that this dog was doing well and the testing had been going well. She expressed satisfaction with this dog, which was donated by Paws-R-Us, and said that she would go back to Paws-R-Us for another dog. Since she was aware of the postings from Lorie Gordon, the postings did not affect her impression of Paws-R-Us as she does have a dog from the company and, since she would go back for another dog from them, the postings did not affect the economic interests of Paws-R-Us.
Plaintiffs’ witness Robert Quesnel testified that between purchases for himself and other members of his family, each of which were at discounted prices, all of their dogs came with a one-year warranty to replace the dog if it died within the one year period. He said that he received a bill of sale for each of the dogs but did not recall receiving any other documents such as a health record. He said that there were lots of dogs, but he did not consider them a puppy mill because of the one-year guaranty that came with each dog. He was aware of the postings, did not agree with the postings, and he said that he would purchase from them again if the price was right. Thus, for this witness, the postings had no effect and did not interfere with any economic interests of the plaintiffs.
Plaintiffs’ witness, Jack Lang, mayor of the municipality in which Paws-R-Us is located, testified that he received letters of complaint regarding Paws-R-Us. The complaints spoke about the conditions where the dogs were kept, stated that Paws-R-Us is a puppy mill and that Paws-R-Us sells sick dogs. The letters of complaint to which this witness testified were from 1998-1999. He testified that he did visit the facilities after receipt of each letter. His testimony was that at that time he saw no problems and in his opinion, Paws-R-Us was not a puppy mill and that they did take good care of their dogs. He further stated in cross-examination that he had no qualifications to make such a determination, only that it was his opinion. This witness testified that he was investigating a complaint that Paws-R-Us were a puppy mill and that Paws-R-Us sold sick dogs. These complaints were in writing to his office as Mayor in 1998 and 1999. These complaints were made known to the plaintiffs at that time and they were aware that they were called a puppy mill at that time and that complaints were made that they sold sick dogs, long before Lorie Gordon posted on the internet.
Plaintiffs’ witness Alida Young, DVM, was the veterinarian for Paws-R-Us from 1998-2004. This veterinarian, like the first veterinarian that testified for Paws-R-Us, stated that her primary concern when visiting the facility was to check the puppies, give them their inoculations and complete the puppy certificates for sale. She said that she did not provide any inoculations to adult dogs. She did say that as a result of respiratory infections, she inspected the barn in 2002 and required that a ventilation system be installed. When asked about the number of dogs in each kennel area, her response was that there were several dogs in each area and they were divided by size but not by breed. She did say that Paws-R-Us did not have outside runs during the time she was there but she understood that these were installed after she left. She said that Paws-R-Us must have had another veterinarian for the adult dogs as she primarily saw only puppies for inoculations. She was asked in cross-examination about an inoculation certificate with her name on it that appeared to have abnormalities, but defence were prevented from providing her with this certificate that was claimed to be signed by her, thus she could not confirm her signature nor clarify the abnormalities.
Plaintiffs’ witness Louis McCann of PIJAC stated that he did see dogs in 2003 chained with 3-foot chains, but excused this because of renovations. He also drafted a report with recommendations including a ventilation system in the main barn. He stated that there were several dogs in the same kennel areas but they were all of the same general size. His report stated that Paws-R-Us should prepare health records on the dogs and that the dogs needed to be registered with Canadian Kennel Club. He testified that not all recommendations were followed, but he could only make recommendations as he was not with an agency that has enforcement authority. He said that the Montreal SPCA had the authority to enforce violations. He said that in his opinion Paws-R-Us were a large commercial kennel operation. When asked about the definition of puppy mill from the Canadian Veterinary Medical Association, he said that Paws-R-Us were a commercial dog breeding operation. He did testify that he did not see outdoor dog runs. He understood that the facilities had been constructed, but not when he visited in 2003 or his subsequent visit. As to the commentary by Mr. Barrick attributed to Louis McCann, Lorie Gordon and I recall that most of what is in Mr. Barrick’s submissions as being stated by this witness, including the definition of a puppy mill found in the PIJAC-published National Companion Animal Coalition pamphlet, was not stated by this witness since the pamphlet had not been introduced when his testimony was given.
Plaintiff Charlene Labombard began her testimony by providing commentary on the video taken of the Paws-R-Us facilities in May 2008. She explained that they had expanded their facilities considerably since 2002-2004, and that the outdoor runs were built in 2005-2006. She explained that when the dogs were chained with 3 foot chains in 2003 during the visit of Louis McCann, they were in the process of renovating the second barn as kennels for dogs. She stated that she does not believe in genetic testing as “the proof is in the pudding” and denied that there are genetic disorders in her kennels. When asked about the genetic disorders in the dogs of her own witness, Sean O’Neill, she stated that those dogs were not from her breeding stock. When asked about each of the defence witnesses and the genetic disorders, she explained that the same disorder can be caused by environmental factors. When asked specifically about the hip dysplasia in Blaze, Lorie Gordon's first dog, she explained that it could have been environmentally introduced. When asked about the demodetic mange caused by the demodex mite, she explained that all puppies have mites, but there is no demodex mite in her facilities and so it must have come from Lorie Gordon’s other dogs. When asked about the idiopathic epilepsy, she stated that that means a specific cause is not known. Although this is true, when it was suggested that when the specific cause is unknown the disease is postulated to be hereditary, the witness became very defensive and stated that there is no such disorder in her kennel with any of her dogs. When asked how many adult dogs she had, the witness responded that she wasn’t sure but somewhere around 360. When asked about the number of puppies her response was that it varies, as puppies are born and then they go. She said that all puppies are de-wormed and receive their first and sometimes their second shots at Paws-R-Us and that, for an extra $100, each dog leaves with a health record and a guaranty.
Ms. Labombard testified that with the first posting by Lorie Gordon around June 2004, her daughter attempted to post the contract signed by Ms Gordon on the list serve, but it was rejected by the host. She also said that her daughter tried to post other information on the same list serve but it was monitored and not posted. At no time during the examination in chief or the cross examination did Ms. Labombard deny the fact that Kaiger, Ms Gordon's first dog, had joint problems at six months of age in his front shoulder and in his hind quarters. Her response was that Paws-R-Us cannot be responsible for problems with the dogs in environments outside the Paws facilities. In respect of Blaze, Ms Gordon's replacement dog, she refused to answer telephone questions from Ms Gordon about the parents, and suggested a treatment used to treat mites in cattle, but maintained that the mange was not from her kennel. She did say that Paws stopped talking to Ms Gordon with the first Internet postings, because they had their lawyer write to her.
Plaintiff Nicole Labombard testified that Lorie Gordon called Paws-R-Us in April 2004 about the skin problems of her new dog, Blaze. Contrary to Mr. Barrick’s assertions, this witness did not claim that Ms Gordon demanded payment for treatment, but stated that Lorie Gordon accused them of having demodex in their kennel, which was denied. This witness did accuse Lorie Gordon of starting many threads on many different websites and listserves, but provided evidence of only two different sites where Lorie Gordon posted. Most references were made to the late Pete Harris’s website, claiming that what was contained on this site was put there by Lorie Gordon. No evidence was led to this fact, and it was shown that prior to Pete Harris’s death he was the subject of a separate action by the same plaintiffs for the same claims as those brought in this matter against Lorie Gordon.
Nicole Labombard was presented with a number of documents claiming that each of these represented lost earnings to Paws-R-Us because of the postings of Lorie Gordon. I will discuss this more under the issue of lost earnings, below. Ms. N. Labombard was also presented with a copy of a petition, a list of names and an eyewitness account of a person who visited the Paws-R-Us facility in 2004. Although Mr. Barrick claims that Ms. Labombard says that Lorie Gordon was responsible for this petition and it was all about Paws-R-Us, according to the information on the petition it was a No Puppy Mills Quebec petition and was in response to the continuing media coverage over several years that has maintained that the Province of Quebec is a Canadian Puppy Mill Haven. Several people and organizations continue to try to stop the growth of puppy mills in Quebec. The eye-witness account was posted by the eyewitness after her visit to Paws-R-Us and was not connected to either the petition or Lorie Gordon’s postings.
In cross-examination, Ms. N. Labombard was asked about the number of litters that Paws-R-Us have in any given month. She was presented with printouts from her website that showed in October 2004 that they had puppies from over 20 different breeds. When asked about the number of puppies, she stated that the numbers vary as litters are born all the time and puppies are sold. She said that in any given month they could have 10, 20 or even more types of puppies for sale. When asked about genetic disorders she repeated what her mother said: “the proof is in the pudding.” When asked how many people work at the facilities, she stated that it is a family business and there are seven to11 adults, and children work there from time to time as well. When asked about adult dogs in the breeding program she said about 150 dogs but when told that her mother said approximately 360 dogs, responded that there could be more than 150.
Defendant’s Witnesses
Defendant’s witness Nancy Hewitt testified that she and her husband visited Paws-R-Us looking for a St. Bernard pup. The Hewitts said that the area housing the puppies was over crowded with puppies of every type. She said that she went into the barn housing the adults, but could not stand the smell and she and her husband had to leave. They described many dogs in small areas, some with both small and large dogs, some with dogs that just looked so sad that she could not stand to see them any longer. They were told that Paws had a female St. Bernard that they were retiring, and were offered the older dog at $50.00. Daniel Labombard brought the older female out to show. They noted several distressing conditions, but left without the dog. However, deciding that they could not leave the older dog in those conditions they returned and purchased her for $50.00, and named her Zoe. Nancy Hewitt was not provided with any documents or health record. Contrary to what Mr Barrick has written, Ms Hewitt did not state on the stand that she was informed that Zoe was recently returned to Paws-R-Us, as had been stated by the plaintiff in cross-examination. Ms Hewitt had her veterinary record with her on the stand, and she talked about Zoe's eye condition, her broken teeth and jaw injury that appeared to be from a kick, and the other disorders with which she came to them. Ms. Hewitt also told the Court that she had to put Zoe down because of joint problems that her veterinarian told her were commonly the result of a genetic problem in St. Bernard dogs and because of her age. Ms. Hewitt stated that there was no question in her mind that Paws-R-Us was a puppy mill, based on what she saw.
Defendant’s witness Wendy Johnson, a member of the Judge Advocate General’s staff, testified that she visited Paws-R-Us with her daughter and her niece. She said that she went there to purchase an Airedale pup. There were no Airedale puppies ready at the time of the visit. She did go through the area where the puppies were kept and started to go through one of the barns to see the adult Airedales. She said that she could not stand the conditions under which the dogs were housed: there were many dogs in small areas and the smell was unbearable. She did order an Airedale puppy. When the pup was delivered it had a bad eye infection and went blind as a result. She was refunded $200.00 of the $800.00 price of the puppy because of the eye infection and the fact that the pup lost the sight in that eye. The pup was diagnosed with severe hip dysplasia before it was a year old, which was also reported to Paws-R-Us. Ms. Johnson brought her entire file on the dog including the complete veterinary records. During her testimony she referred to her veterinary records, but Mr. Barrick objected to them being admitted into Court as an exhibit. Ms. Johnson testified that from what she saw and what she now knows about puppy mills, there is no question in her mind that Paws-R-Us are a puppy mill.
Defendant’s witness Lee-Anne Cross testified that she is the daughter of Deborah Cross, and that she was present during all relevant times respecting the purchase of a pup from Paws-R-Us by her mother. She testified that she was never at the Paws-R-Us facilities and could not comment on them being a puppy mill, but did testify that Lexis, the pup her mother purchased, was sick when they received her and had a very unpleasant odour. She stated that they consulted a veterinarian immediately and that Charlene Labombard was sent the veterinary report of the visit the day after they received their pup. She also testified that she was the person who witnessed Lexis's first seizure when she was driving up the family driveway. She stated that Lexis flipped over backwards almost as if she had been shot. This was when her epilepsy treatment was started. Ms Cross also offered her veterinary records to Mr. Barrick since she referred to them on the stand, but they were refused.
Defendant’s witness Lynn Bourdon testified that she visited Paws-R-Us in June 2004 and wrote the eye-witness report that she posted on the internet very soon after. She had not heard of nor talked to Lorie Gordon prior to posting her eyewitness report on the internet. Her report was in conjunction with the petition to stop all puppy mills in Quebec, and a link from the petition to her eyewitness report was provided among other links to other reports from puppy mills around Quebec. Mr. Barrick states that this witness does not mention outdoor runs for the dogs, but since no outdoor runs existed in 2004, this is not surprising. That construction of the outdoor runs was begun in 2005, and this was substantiated by the testimony of the plaintiffs themselves. Mr. Barrick also comments that no veterinary information was provided by her since she did not purchase a dog from Paws-R-Us.
Defendant’s witness Katie Ng testified that she was at the Paws-R-Us facilities twice: once when she picked out a pup with an exchange student from China, and the second time when she had to go back to pick up the puppy because Paws-R-Us would only accept cash for their sale of dogs. Ms. Ng described the visits as follows: “we saw a head of a dead puppy on the road leading to their barn; I didn’t think a kennel would not know that one of their dogs was missing or dead so close by.” She said that she drove by their property four times before finally deciding to drive in and check it out. She described the barn, as having hundreds of dogs inside: some were in pens, and some new born puppies were on the floor, lifeless bodies covered in their own excrement and urine. Many bigger dogs were kept along the far end of the barn in wire cages that were dark, dirty and the stench was so awful she could still smell it after a whole week. Ms. Ng saw a Skye terrier inside a pen with eight or more Dalmatian puppies, who were much larger. She described him as being at the corner of the pen, looking scared and helpless. Ms. Ng said she was told that he was the last of the litter. Ms. Ng asked to see the parents of the Skye Terrier. She was led to the back, of the barn, and described the conditions as: “I saw hundreds of dogs, kept in totally unacceptable conditions.” Ms. Ng took the puppy out of the barn and put him on the grass. She said that it was apparent that it was the first time he had touched the ground or grass: he fell to his knees, not knowing how to walk on it. They took him home, and named him Roscoe. At first he could not eat, and stayed in the same corner of the kitchen for two days. Ms. Ng described Roscoe as having no social skills. She also said that he was six months old, but acted like an old dog. Ms. Ng gave evidence that the first time she witnessed Roscoe having a grand mall seizure was around 2:00 am in the morning. She heard a thumping noise coming from the kitchen and soon realized that it was her dog lying on the floor performing a kicking motion which made him hit the cupboard doors. He was having a seizure. She testified that it was the most scary and difficult thing to watch, a dog trying to catch his last breath, and it seemed like eternity . She said that during these seizures he released his bowels, his eyes rolled up, body stiffened, mouth foamed and he would not respond. Although Ms. Ng called Paws-R-Us twice, each time the response was that if Roscoe died from a defect, a death statement from the veterinarian was required to get a replacement dog from another litter. Ms. Ng explained how traumatic this event was and how it affected them. Ms. Ng testified that Roscoe is her responsibility and she would never take him back to the barn to suffer another day or even a minute of his life. She testified that she has already spent over $3,700 in veterinary bills and expects more for Roscoe’s future medication, which he will be on for the rest of his life. Ms. Ng was reduced to tears when she described to the Court, Roscoe’s 10 grand mall seizure attacks within 24 hours, leaving him with blindness, hearing loss, very poor motor skills, and a loss of the ability to smell for over four months. Ms. Ng explained that he was very, very close to death. Ms. Ng offered Mr. Barrick her veterinary records, which she had with her on the stand, but these were refused.
Defendant’s witness Shelagh MacDonald testified that she has been the Program Director at the Canadian Federation of Humane Societies (CFHS) for the past sixteen years. She stated that some of her responsibilities included: representing the CFHS on the National Companion Animal Coalition (the organization that established the content for the pamphlet published by PIJAC), beginning with its formation in 1996; representing the CFHS on the Animal Welfare Committee of the Canadian Veterinary Medical Association (CVMA) where she participated on a subcommittee called the Animal Welfare Committee, which worked on the revision of the CVMA Code of Practice for Kennel Operations. This 2nd edition was completed and published in 1994; representing the CFHS on the National Farm Animal Care Council since its formation in 2005; representing the CFHS on the Canadian General Standards Board Trap Development Committee that developed the standard for killing traps in the mid-1990s; member of the Canadian Kennel Club Editorial Advisory Committee since its formation in 2007; coordinated the development of the recently-completed CFHS Shelter Operations Manual; and she has visited a number of humane society/SPCA shelters across Canada respecting environmental conditions of animals in shelters.
Ms. MacDonald testified that she visited the facilities of Paws-R-Us on November 14, 2007 because of all of the attention that the media was giving Paws-R-Us over the defamation claim against Lorie Gordon for calling them a puppy mill. She said that she often gets calls from the media and is asked questions about such facilities and such claims. She described the conditions at Paws-R-Us as being sub-standard. She told of many examples as to why she held that belief. She stated that in her opinion based on all of her experience respecting animal living conditions, that Paws-R-Us is a puppy mill with hundreds of dogs in sub-standard conditions. Mr. Barrick asked if she would be providing any veterinary reports to support her claims, to which she stated that that would be the role of the Quebec SPCA.
Defendant’s witness Colleen Fox testified that she visited the Paws-R-Us facilities, but did not go into the barn. She said that the noise of all the dogs was deafening and overwhelming and the state of the farm grounds and house was eerie and scary. Ms. Fox testified that she visited Pete Harris's (not Lorie Gordon's) website mistakenly. She already knew that Paws-R-Us were a puppy mill and she joined with Lorie Gordon to help in her case. Ms. Fox testified that when she went to get her pup, purchased over the telephone, she was told the pup had just been shampooed, but it reeked of vomit and had to be washed and treated for fleas upon her getting the pup home. Ms. Fox testified that Paws-R-Us themselves didn't know Daisy’s parents since she was given two different documents stating two different sets of parents. By the time she received the phone call stating that the parents on her 'registration' papers were wrong she didn't care anymore, after everything she had gone through with Daisy’s health, and the fleas, and the obvious false documents, and the lying about her age and health, she knew that she would not receive truthful answers. Ms. Fox was asked about her pup’s health records and she described to the Court a medical certificate with different dates and what appeared to be a photocopy of a veterinarian’s signature. Ms. Fox testified that she requested corrected papers from Paws-R-Us but never received anything from them. Ms. Fox testified that, a day after she brought Daisy home, she had to take Daisy to the veterinarian because Daisy was lethargic and sick with mucus-ey, bloody stool. The veterinarian diagnosed Daisy as having severe coccidia from which it took months for her to recover. Ms. Fox testified that within a few months of purchasing Daisy, the dog showed signs of hip dysplasia, which was first noted when Daisy threw her hip out while playing. Ms. Fox showed evidence that she treated the dog with glucosamine and that she had to limit Daisy's exercise because of so much pain. Ms. Fox testified that she didn’t have Daisy checked for hip dysplasia, because the obvious signs of hip dysplasia were present. She explained that she had two previous family dogs with hip dysplasia. Ms. Fox testified that if you don't opt for the un-guaranteed and expensive surgery, the most common treatment is glucosamine supplements to help make the dog more comfortable. Ms. Fox testified that she never called Paws-R-Us to complain about Daisy's problems because Paws were the cause of Daisy's problems from the start, and she stated that she never would have returned her to their negligent and abusive care, since it was obvious to her that they didn't care about the animals. Ms. Fox testified that there was no doubt in her mind, based on her experience and what she observed, that Paws-R-Us is a puppy mill. Ms. Fox had her veterinary records with her, to which she referred during her testimony. She offered the full veterinary records to Mr. Barrick, but they were refused.
Defendant’s witness Alanna Devine testified that she is the acting Executive Director of the Montreal SPCA. She stated that she has been involved in animal welfare law and is familiar with the SPCA file on Paws-R-Us. She testified that, based on the information she had received of over 360 dogs cared for by seven adult full-time staff with part-time assistance from children, it would be physically impossible to provide proper care for that many dogs. Ms. Devine gave as an example a recent raid of a puppy mill just outside of Montreal where approximately 150 dogs were seized. She stated that it took 38 full-time employees to provide the proper care during shifts over each 24-hour period. Ms. Devine testified that in Quebec, there are space requirements for dogs in a kennel environment and the basic requirement is food, water, shelter with appropriate drainage and temperature control with a minimum of two twenty-minute exercise periods every 24 hours for each dog. Ms. Devine explained that the math is not there to demonstrate how seven full-time employees even with part-time children helping could properly clean, feed and exercise over 360 dogs. Ms. Devine testified that, in her mind, there is no doubt that Paws-R-Us is a puppy mill, but just because they are a puppy mill in Quebec does not mean that they are breaking the law in Quebec. She said that the SPCA are taking steps to shut-down puppy mills, but Quebec still has the reputation of being the puppy mill capital of Canada, an image that the SPCA and others are trying to change. She stated that the problem with enforcement would be best explained by Daniel Davenport, an investigator who is on her staff and also there to testify.
Defendant’s witness Daniel Davenport testified that he carries officer-of-the-peace status in Quebec. He is an investigating officer of the Montreal SPCA and has been for twenty years. He testified that he visited the facilities of Paws-R-Us five times until he was refused entry in February 2005. He explained that in Quebec there are several organizations that govern the breeding of dogs. He testified that during his inspections of Paws-R-Us, he did note a number of health concerns, such as open sores on the dogs, extremely dirty kennel areas, and over-crowding. He testified that with each visit he would examine paper records and from the documents could say that there was 80-85 different breeds of adult dogs. When asked about the number of puppies, Mr. Davenport testified that from May 1999 to March 2000 he received reports from the attending veterinarian of vaccinations of 412 five-week old puppies that were followed until they were 12 weeks old. He also testified that on one day in April 2000 the attending veterinarian reported vaccinating 312 puppies 6-weeks of age or older. Mr. Davenport never testified that he counted all of the dogs in all of the buildings at Paws-R-Us. He did state that at the times that he inspected the operation, there were many dogs and they were kept in sub-standard conditions. When asked if they were a puppy mill, he responded that in his professional opinion Paws-R-Us was a puppy mill at the times that he did his inspections. He further testified that just because he believed that they were a puppy mill, in Quebec that is not enough to file charges. He explained that in Quebec the test that they must meet is found in the Criminal Code of Canada and the dogs must be abused to the point of life-threatening conditions. Mr. Davenport was asked to confirm that he believed that Paws-R-Us was a puppy mill and he confirmed in examination and in cross-examination that Paws-R-Us was a puppy mill.
Defendant’s witness Judy Hawthorne, D.V.M., testified that she never visited the Paws-R-Us facilities but because of the number of dogs with problems seen by her and other veterinarians that she networks with, the consensus in her veterinarian network was that Paws-R-Us dogs have many genetic disorders and that it is more than likely Paws-R-Us is a puppy mill. When asked specifically to speak to the issues of Blaze, Lorie Gordon's second dog, Dr. Hawthorne testified that the first time she examined Blaze, she may have misled Ms Gordon, not because she didn’t have an open mind, as stated by Mr Barrick, but misled her because she couldn’t find the actual cause of the lesions on Blaze. She further testified that one week later, without improvement, Blaze was started on mite treatment – scabies mite treatment, not demodex mite. She said they decided to go with labelled treatment, not off labelled. She said that according to her file notes, her problem before demodex diagnosis was that there seemed to be a contagion going with her other dog which is more suggestive of scabies and a much harder-to-find mite. Because it is also contagious to people, it is more of a concern. RevolutionTM was used for treatment of both, that is, it is a drug used for scabies, but also an immune system anti-parasitic booster to help the immune system against demodex. Given a chance, the body can heal itself with maturity and a better immune system. She testified that she asked Ms. Gordon to contact the breeder to try to find out about any contagion in the kennel. Dr. Hawthorne testified that according to her file notes, Paws-R-Us told Ms. Gordon to obtain and use ivomec, an off labelled treatment for scabies mites. She testified that this spoke to the fact that Paws had had a problem in the past and knew the off labelled treatment for it. It made scabies a more likely scenario for Blaze. She testified that many treatments for demodex are off labelled. She said that she did discuss treatment options with Ms. Gordon and they decided to work on Blaze’s immune system. She stated that at the first visit, it was true that there was no loonie-sized lesion on Blaze’s head, but that wound was noted on the second visit and on subsequent visits along with progressing lesions on different areas of Blaze's body. With time, support and a lot of care, Blaze improved. So did the other dog in the house who contracted similar issues after Blaze arrived.
Mr. Barrick, in his submissions, is confusing the hereditary conditions Dr. Hawthorne found in Blaze. What Dr. Hawthorne testified to was that the demodetic mange was over by age one and Blaze's seizures did not start for months later. She stated that both demodex and seizures have hereditary components. She testified that Blaze had idiopathic epilepsy, which means that the specific cause is not known. She said that as a doctor, you rule out problems that the environment can contribute so that you might be able to treat the specific cause. Without a cause found, heredity is the biggest potential, by far. She went on to state that Blaze’s breed is known for seizures, raised by Mr. Barrick in cross-examination, which goes to hereditary causes. Mr. Barrick attempted to get Dr. Hawthorne to state that because of this factor, the condition is common in Blaze’s breed, so that it was not the fault of Paws-R-Us. Dr. Hawthorne stated that it takes responsible breeders to breed out such conditions, since it is irresponsible breeders who, through bad breeding practices, introduced the hereditary conditions in a breed in the first place.
Dr. Hawthorne testified that she, and not Lorie Gordon, raised the subject of euthanizing Blaze. She went on to state that both she and Ms. Gordon believe in quality of life. She testified that by that time Blaze had no quality of life and had no prospects to regain any quality of life.
Dr. Hawthorne brought with her and referenced on the stand, two letters on her letterhead, veterinary textbooks, Internet data respecting the relevant disorders, Ms. Gordon’s files, and case files from other animal hospitals, and Ms. Gordon’s bills. All of this was offered to Mr. Barrick, but was refused.
Defendant Lorie Gordon testified that she was on the property of the kennel once to pick up her golden retriever, Blaze. She never visited the kennel and remained in the house for a short period of time. She said that she had a hard time finding the place because it was so far off the road and just looked like a farm, not a dog kennel. She said that the odour burned her eyes and she could not breathe. She said in the house men were sitting on the couch and smoking in the presence of a newborn baby. She stated that, in her opinion, no child should be living in that house as it was foggy with smoke.
In cross-examination, she said she had one black Labrador retriever named Kaiger, purchased without a guaranty from Paws-R-Us , and euthanized at 27 months for severe hip dysplasia. Ms. Gordon testified to the Court that her concern was his pain and suffering. Paws-R-Us gave her a replacement puppy, Blaze, a golden retriever, who left Paws-R-Us with severe demodex mange and in December 2005 began having severe seizures. She has one golden retriever named Frodo, given to her by her employer, who had purchased him from Paws-R-Us. . She also has one golden retriever, not a mix, named Kodie. He came from a shelter where he had lived for a year and had been listed as un-adoptable because he needed ear surgery to reopen his ear canal. She testified that she saved Kodie and has given him a wonderful life, which he deserves. She also has one Yorkie mix named Justice (10 weeks old) whose pregnant mother was fostered out to a home by Nicole Joncas, after the Montreal SPCA raided a puppy mill.
Ms. Gordon testified that two had been euthanized because of serious hereditary disorders. Both of these dogs were from Paws-R-Us and were the subject of her postings on the internet. Ms. Gordon testified that her black Labrador retriever, Kaiger, at six months, was having problems with his shoulder. She testified that his joints continuously worsened to the point that at 27 months, he could not even get up onto a couch. He was diagnosed at the Brockville Animal Hospital, with severe hip dysplasia, and because she was concerned about his quality of life, and did not want him to suffer any more, she had him euthanized.
Ms. Gordon testified that Dr Hawthorne checked Blaze and prescribed RevolutionTM for sarcoptic mange and then discovered demodectic mange in addition, which she also treated. She testified that Blaze's food was changed to a better quality food. Jordie, one of her other dogs, developed spots on his ear after Blaze came to live with them and it has been proven that only sarcoptic mange can be passed to person or dog; demodex can not. As the problem with the mange continued, Ms. Gordon testified that one day she finally dropped Blaze off at Dr. Hawthorne’s clinic before going to work, and returned after work to find that after much investigation Dr. Hawthorne had finally found demodex mite, and therefore diagnosed demodetic mange. Treatment began and the issue was resolved after four months.
Ms. Gordon testified about the first time Blaze had a seizure, on December 15, 2005. She said that she knew only to keep him safe but never to try to move him. She stated that Blaze would be blind and could not see, then get up and run and pant sometimes for hours. She further testified that she put the other dogs outside while Blaze was having a seizure, as a dog could attack, or be attacked by another dog, in a seizure. Ms. Gordon testified that Blaze was put on phenobarbitol for his seizures, with pills administered every 12 hours. She said that her life ran around his pill time. His pills were increased and Ms. Gordon stated that she spoke with the Epilepsy Foundation and asked what it was like when Blaze was in a seizure, could he hear her, was he in pain, was there anything she could do to help him. Ms. Gordon testified that by the summer of 2006, Blaze's seizures were daily and often more than one per day. He had brain damage and was not the dog he was even six months prior. The seizures took over Blaze in every way. She said that their life was never the same. On November 2, 2006 Blaze was euthanized.
Ms. Gordon testified that she did some research on the Internet about demodex mange, and was sent to links on puppy mills, where the problem is common. Ms. Gordon testified that she came to the conclusion that Paws "R" Us was a puppy mill by what she had read and was told about puppy mills and Paws-R-Us. Specifically, taking into consideration the genetic issues, lack of socialization, and her conversation with Pierre Barnoti of the Montreal SPCA, who told her directly that Paws-R-Us was a puppy mill and that their dogs were kept in sub-standard conditions, she believed them to be a puppy mill.
Ms. Gordon went through each of the postings claimed to be authored by her. She testified that she did post that she received two sick dogs from Paws-R-Us, specifically, Kaiger and Blaze. Both had severe hereditary disorders and both had to be euthanized as a result of the medical disorders. She testified that she wanted to tell people about her experience with dogs from Paws-R-Us and to encourage people to check them out before purchasing.
Recovery of Veterinary Expenses
Ms. Gordon testified that she is aware that the plaintiffs claim she is seeking revenge against them for refusing to pay her veterinary bills. However, there has never been any evidence provided to support this claim. Ms. Gordon testified that she never asked for one cent from the plaintiffs and only raised a counter claim in the amount of a portion of her veterinary bills for Kaiger and Blaze after she was served with the defamation claim.
Ms. Gordon had all of her files with her on the stand. She offered her research into puppy mills, the medical conditions of both Kaiger and Blaze, her veterinary bills, which were also offered by Dr. Hawthorne, and letters and emails from many people who could not be at the Court but who also wrote to her about the serious medical conditions of their dogs received from Paws-R-Us. All of this was refused by Mr. Barrick.
Interference with Economic Interests
In his submissions, Mr Barrick makes reference to the email exhibits in Document Brief #2. Each of these emails was reviewed in cross-examination of the plaintiffs. If one takes the time to examine these exhibits, one will find evidence that is counter to what Mr Barrick claims in his section titled “Interference with Economic Interests”.
Jason Harps, April, 2005, Exhibit 2, Tab 2A: In this exhibit, there is no reference to Ms. Gordon, nor any displeasure expressed with Paws-R-Us. There is no evidence provided in Tab 2A to prove that the Harps cancelled the purchase contract because of any postings of Ms. Gordon.
Craig Hennigar, March 2005, Exhibit 2, Tab 2B: The chronology of these emails demonstrate that Paws-R-Us twice tried to send the Hennigars directions to their kennel. Neither time did the directions reach the Hennigars. As a result, the Hennigars said they went on the Internet to find the directions and instead found something on www.pets.ca [note that the URL is handwritten in this email by Nicole Labombard, as testified to in cross-examination] that made them decide to cancel their visit. The URL provided is not a website of Ms. Gordon nor is there any reference to Ms. Gordon.
Elisabeth Wagas [not Wadas] January – February 2005, Exhibit 2, Tab 2C: Mr. Barrick says in his submissions that the Labombards testified that Ms Wagas and her family cancelled the contract “after reading the thread on the Internet and referred to Exhibit 2, Tab 2C to show that they had as a result lost $600.00.” In fact, Ms Wagas mentions neither Ms Gordon nor the Internet, but writes: 'After much research through the Humane Society and the Ottawa Kennel Club, we have decided that we will leave you with the $50 deposit rather than supporting your “business” [quotes are Wagas's] by actually buying a puppy from you.' As testified to by Ms. Gordon, the Montreal Humane Society were the first people that told her that Paws-R-Us were a puppy mill.
Christine Head, February 2005, Exhibit 2, Tab 2D: Mr. Barrick, in his submissions, again says “after reading the thread on the Internet,” Ms Head cancelled a contract to purchase a dog. However, Ms Head says only that “I researched and was troubled by many comments about your kennel . . .” She does not state how she conducted the research, nor is there any reference to Ms. Gordon nor to any of Ms. Gordon’s postings.
Lisa Evans, April 2005, Exhibit 2, Tab 2E: Mr. Barrick again says “after reading the thread on the Internet”, but Ms Evans writes “. . . I just checked out NAPDR [North American Purebred Dog Registry] and they register anything and cater to puppy millers. You should try and up your standard to another more reputable registry.” In fact, Louis MacCann testified that one of his recommendations, which Paws-R-Us failed to follow, was the need to use a Canadian Registry and specifically mentioned the Canadian Kennel Club as a registry to follow. Nowhere does Ms Evans mention reading or hearing anything related to any postings of Ms. Gordon or even postings from others about Paws-R-Us.
Bobbi West, February 2005, Exhibit 2, Tab 2F: Like Jason Harps, [noted above] there is no reference to Ms. Gordon, nor any displeasure expressed with Paws-R-Us in the exhibit referenced here. There is no evidence in this exhibit to demonstrate why they cancelled the contract, nor is there any evidence that links the cancellation in Tab 2F to any postings of Ms Gordon.
Jared Novotny, October 2004, Exhibit 2, Tab 2G: Once again, Mr. Barrick, says that the Labombards testified that Novotny cancelled the contract “after reading the thread on the Internet”, yet in an email in Exhibit 2, Tab 2G, Mr Novotny writes: “After being at your kennel last weekend, we have decided that we do not want to purchase a dog from your establishment.” In fact, this email implies that there is a direct link between what they saw at the facilities and their change of heart about purchasing a dog from Paws-R-Us. Nor is there any reference in this exhibit to any postings of Ms. Gordon.
Stephen Bernard, April 2005, Exhibit 2, Tab 2H: Once again, Mr. Barrick, says that the Labombards testified that Mr Bernard cancelled an appointment “after reading the thread on the Internet”, yet in an email in Exhibit 2, Tab 2H, in response to an email from Charlene Labombard with directions, Mr Bernard writes: “Please be advised that we have decided not to use the Paws-R-US Kennels.” No other document is provided to substantiate the claim that the Bernards read anything on the Internet or that they were influenced, in any manner, by Ms. Gordon.
Codename: Peabrain, October 2004, Exhibit 2, Tab 2I: Only one email from Codename: Peabrain (hereafter C:P) is supplied, and since he or she does not use his or her real name, and the email address is a webmail address easily acquired or abandoned, it is difficult to believe that the Labombards had entered into any serious negotiation for the purchase of a dog with this unnamed person. C:P refers to a thread on www.pets.ca , but does not provide a complete URL for the pages he or she read. It is, therefore, impossible for the Labombards to claim that the pages read or referred to by C:P are the ones supplied in the rest of the exhibit. Further, C:P writes: “I find it absolutely incredible that people would do this. I have since talked to people and confirmed this is true.” Since C:P does not say what he or she finds incredible, and since the pages from an Internet thread supplied with this exhibit mention several actions including having a dog spayed, or that Paws-R-Us insisted on appointments because they did not like to receive unexpected visitors, what amazed C:P is never made clear and certainly cannot be claimed to be influenced by any postings of Ms Gordon.
Krista Kramer, March 2005, Exhibit 2, Tab 2J: On March 7, 2005, Krista Kramer writes “I've heard that you are a puppy mill, is this true?” In the same email she writes that she has read “some very disturbing articles on your company are these true?” Mr. Barrick states that Ms Kramer was no longer interested in purchasing a puppy “after reading the thread on the Internet”, but Kramer specifically mentions “articles,” not a thread. After the initial email, Charlene Labombard writes back to Kramer assuring her they are not a puppy mill, but a commercial breeder. On Tuesday March 8, at 2:00 am, Kramer thanks her for her response, and adds that she and her family have “decided to go the rescue route.” Seventeen minutes later, however, Kramer sends another email in which she forwards some information on the services provided by a “holistic animal consultant”, in case Charlene Labombard is interested. Charlene writes back the same day thanking Kramer for the information and offering a tour if she would like to visit. Kramer responds that evening (March 8, 2005) at 7:04 pm thanking her for the invitation, appears to be open to visiting, and also makes some suggestions to increase the number of visitors to the Paws-R-Us kennels. The next day, March 9, 2005, Kramer sends Charlene Labombard an attachment from “www.nopuppymillscanada.ca on what constitutes a reputable breeder, and says that this is what she found on reputable breeders. She then repeats that she thinks she “will go the rescue route”. It is at this point, when Kramer discovers what constitutes a reputable breeder on nopuppymillscanada, that the correspondence ends. In 2005, the only articles [emphasis added] that were published naming Paws-R-Us were the 2000-2001 articles by Jake Rupert of the Ottawa Citizen, in which Paws-R-Us is called a puppy mill, articles published and on the Internet long before any postings of Ms. Gordon.
Alex Marson, October 2004, Exhibit 2, Tab 2K: In October 2004, Mr Marson cancels his appointment, because “I feel that the sheer number of people with issues about your operations is very alarming.” In this exhibit there is one posting from Lorie Gordon dated September 2004, which might have been read by this person before he cancelled in October 2004. All other postings from Ms. Gordon included in this exhibit are dated March 2005 on, and therefore after the Marson cancellation. Mr Marson does not specifically refer to “a thread on the Internet,” but does refer to “sheer number of people with issues about your operation…”. Thus, there is no strong connection to be made to this September 2004 posting and certainly no connection to postings dated months after the cancellation.
Vanessa Labelle, May 2005, Exhibit 2, Tab 2L: Once again, Mr. Barrick, says that the Labombards testified that Labelle was no longer interested in purchasing a dog “after reading the thread on the Internet”, yet in an email in Exhibit 2, Tab 2L, Ms Labelle writes: “After reading and receiving some information from professionals about your place, I refuse to buy a puppy from your place.” As testified to by Nicole Labombard, professionals are those persons who gave testimony from the various SPCAs, all of whom confirmed in their testimony that Paws-R-Us is a puppy mill. There is nothing in this email that makes any link whatsoever to Ms Gordon.
Summary of Evidence
Evidence was presented that went to the medical conditions of the dogs at Paws-R-Us. Witnesses that purchased dogs from Paws-R-Us talked about their specific medical conditions and veterinarian expenses with their dogs, specifically:
Sean O’Neill, said that he purchased two dogs from Paws-R-Us and both have a serious medical disorder, but since his parents had the dogs he could not be specific;
Nancy Hewitt, talked about various medical conditions afflicting her dog, Zoe, including an eye condition causing blindness in one eye, missing and broken teeth and hip dysplasia that resulted in having to euthanize her. Ms Hewitt had her vet records with her on the stand and did refer to them;
Wendy Johnson's Airedale had a severe eye infection while still a puppy that resulted in one eye going blind; her dog has severe hip dysplasia and she referred to her vet records while on the stand;
Lee-Anne Cross had her vet records for her Australian Shepherd, which has idiopathic epilepsy;
Katie Ng purchased a Sky Terrier that has idiopathic epilepsy and had her vet records with her on the stand and referred to them;
Colleen Fox purchased a Collie (Daisy) that has hip dysplasia; she also had her vet records with her on the stand and referred to them respecting Daisy’s other medical conditions as well;
Dr. Judy Hawthorne talked about Ms Gordon’s dog Blaze and his ideopathic epilepsy, and her dog Kaiger's hip dysplasia, and referred to several other cases she has with dogs with the Paws-R-us tattoos and;
Ms Gordon also testified about how Blaze's severe illness affected her emotionally, and how her dog, Kaiger, appeared to be continuously in pain with severe hip dysplasia.
Evidence was presented by persons who went through the facilities at Paws-R-Us or have knowledge of the conditions at the kennel. Specifically:
Nancy Hewitt talked about her visit and described dirty, smelly conditions and about dogs with open sores;
Wendy Johnson, talked about the number of dogs, the smell and the dogs with open sores; she said that the two children cried on the way home after going into the barn;
Lynn Bourdon went through the barn and wrote her description, which she posted on the internet prior to Ms Gordon posting her beliefs about Paws-R-Us; her eye-witness account is linked to the Quebec stop Quebec puppy mill website;
Shelagh MacDonald, an expert from the CFHS on sheltering animals, gave testimony about what she saw in the barn and stated unequivocally that Paws-R-Us are a puppy mill because of the substandard conditions for the animals;
Alanna Devine, current executive director of the Montreal SPCA, stated that she did not visit the facilities but she has access to all of the reports, inspections and complaints about Paws-R-Us and based on the number of dogs and the staff at the facilities, she said that there is no way that they can provide the proper care for the animals and she has no doubt that they are a puppy mill;
Daniel Davenport, inspector for the Montreal SPCA, conducted several inspections of Paws-R-Us until he was refused entry in February 2005, said that based on his inspections from 1999-2004 and the conditions under which the dogs live, he has no doubt that Paws-R-Us meet the definition of a puppy mill, qualifying his statement that in Quebec, just because they are a puppy mill, the SPCA cannot do anything because they have to prove beyond any reasonable doubt that the animals fall under the Criminal Code provisions. He does not have that evidence regarding Paws-R-Us, but he confirmed that they are a puppy mill.
Issues
There are four issues to address:
g. Whether the plaintiffs are statute-barred from bringing this claim due to the relevant limitations period;
h. Whether truth is an absolute defence to a defamation claim;
i. Whether the statements made by Ms Gordon are factually true.
j. Whether, if this Court does find Libel, there are damages attributable to Ms Gordon.
Discussion
The legislation relevant to a claim of defamation and the defence of such a claim is the Libel and Slander Act, R.S.O. 1990, Chapter L.12 (hereinafter, the Act). I set out the sections upon which I wish to rely below:
5. (1) No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant. R.S.O. 1990, c. L.12, s. 5 (1).
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6. An action for a libel in a newspaper or in a broadcast shall be commenced within three months after the libel has come to the knowledge of the person defamed, but, where such an action is brought within that period, the action may include a claim for any other libel against the plaintiff by the defendant in the same newspaper or the same broadcasting station within a period of one year before the commencement of the action. R.S.O. 1990, c. L.12, s. 6.
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22. In an action for libel or slander for words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges. R.S.O. 1990, c. L.12, s. 22.
23. In an action for libel or slander for words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved. R.S.O. 1990, c. L.12, s. 23.
24. Where the defendant published defamatory matter that is an opinion expressed by another person, a defence of fair comment by the defendant shall not fail for the reason only that the defendant or the person who expressed the opinion, or both, did not hold the opinion, if a person could honestly hold the opinion. R.S.O. 1990, c. L.12, s. 24.
The plaintiffs claim that Ms Gordon has defamed their character. The Act covers two types of defamation: libel and slander. Blacks Law Dictionary, as cited in A Primer on the Law of Defamation in Ontario, states that defamation is: “The act of harming the reputation of another by making a false statement to a third person…A false written or oral statement that damages another's reputation.
See, Defendant’s Index of Authorities, CHARITY LAW BULLETIN No. 125, September 26, 2007, A Primer on the Law of Defamation in Ontario, Suzanne E. White, B.A., LL.B.
Limitations Period
Ms White clearly describes the limitations requirements for bringing an action for defamation. She states:
“Where an individual, corporation or organization decides to bring a court action for alleged defamatory statements, there are important limitation periods that must be noted. Failure to do so can create a situation in which the proposed plaintiff in the proceedings loses their ability to bring their action simply because of a procedural error rather than for lack of a worth-while claim. Section 5 of the Act states that a plaintiff cannot bring an action for libel in a newspaper or a broadcast unless within six weeks after the alleged libellous statement has come to the plaintiff's knowledge, the plaintiff has given written notice to the defendant that they have become aware of this statement and that a statement of claim will follow. Furthermore, at section 6 of the Act, a court action for libel must be commenced within three months after the alleged libellous statement comes to the plaintiff's knowledge. Actions in libel and slander that do not relate to newspapers must be brought pursuant to the Limitations Act, 2002, which states that there is a two year limitation period from the date upon which the plaintiff became aware of the alleged libellous or slanderous statements upon which to bring a court proceeding.”
See, Defendant’s Book of Authorities, Charity Law Bulletin No. 125, September 26, 2007, “A Primer on the Law of Defamation in Ontario”, Suzanne E. White, B.A., LL.B.
It is still not clear in Ontario if posting on the internet constitutes “broadcast”. This issue is explored in Defamation and SLAPPs:
“In Ontario, the notice must be sent within six weeks after the alleged libel act has come to the plaintiff's knowledge. If the defendant is an individual, the notice must be delivered personally to him or her. If the defendant is a corporation, the notice must be delivered to an adult at the corporation's chief office. The Act also sets a deadline for the plaintiff to be able to sue, even if he sends the notice on time. The plaintiff must begin the lawsuit within three months after the libel has come to his knowledge. How do these deadlines apply to statements posted on the Internet? As of April 2004, it is not clear how these deadlines will apply to Internet postings. The Act specifically applies to "broadcasts from a station in Ontario" (section 7). However, it is not yet clear whether an Internet posting is a "broadcast".”
See, Defendant’s Book of Authorities, Defamation and SLAPPs
In this instance, timing is important depending on whether or not this Court finds that an internet posting is a broadcast under the Act. The plaintiffs gave testimony that they were made aware of the first postings on July 31, 2004 and even tried to post Ms Gordon’s contract to the same list in August 2004. The last posting by Ms Gordon was on April 3, 2005. The notice by the plaintiffs that they were considering potential action was not served until February 2006. This was well beyond the three-month limitation provided for in the Act, even if the letter sent to Ms Gordon in August 2004 is considered as notice.
Justification – Truth
According to Ms White, there are four main defences to an action for libel or slander, only two of which could apply in this case. These are described by her as:
Truth - The first defence is the defence of truth, meaning that if a statement made is attacked as being defamatory, the defence can be made that the statement was truthful and therefore there was nothing false about the statement, meaning therefore, that the statement was not defamatory.
Fair Comment - The second defence to an allegation of libellous statement is that the statements made were made as a fair comment. The defence of fair comment would be considered by the Court in situations where, by looking at the statement made, the facts and the situation, a conclusion can be made that the statements made were in actuality a fair commentary on the situation at hand and that the comments were fair and were not malicious.
Defendant’s Book of Authorities, Charity Law Bulletin No. 125, September 26, 2007, “A Primer on the Law of Defamation in Ontario”, Suzanne E. White, B.A., LL.B.
Mr. Barrick would have the Court believe that the statements made by Ms Gordon are defamatory and, that since they were on the Internet, were much more severe than those printed in the Ottawa Citizen prior to Ms Gordon's postings. Ms Gordon believed at the time of posting her comments, and continues to believe now, that her statements about receiving sick dogs from Paws-R-Us are true, and, as she was told by the Montreal SPCA that Paws-R-Us was at the relevant time a puppy mill. In 2004 and early 2005 Ms Gordon posted her comments with good reasons to believe that Paws-R-Us was a puppy mill.
As stated in Defamation and SLAPPs, defamation actions are often started with the sole purpose of stopping public discussion of an issue. This article states:
“At the same time that the online context can exacerbate the harmful effects of defamation, it serves as an important vehicle for free speech. Efforts to protect reputation need to be balanced against the public interest in maintaining the potential of the Internet as a medium of public discourse. The law of defamation needs to protect people from cyber-libel without squelching legitimate free speech. Lawsuits that allege defamation in order to curtail fair criticism - known as "SLAPPs" (Strategic Lawsuits Against Public Participation) - should not be permitted, either online or offline.”
See, Defendant’s Book of Authorities, Defamation and SLAPPs
From the evidence presented by the plaintiff, as discussed in our section on Interference with Economic Interests (above), it is clear that at the time this suit was brought against Ms Gordon, there was public discussion taking place regarding the issue of puppy mills. That discussion was not started by Ms Gordon, although she was a participant in it.
Ms Gordon is claiming justification (section 22 of the Act) or truth, which is the first defence, as outlined by Ms White, for the comments posted. To succeed in a plea of justification at common law, the defendant must prove the substantial truth of the whole libel and not simply a part of it. The plaintiff is entitled to damages in respect of any material part that is not proved true, provided it would, by itself, form a substantial
ground of an action of libel. However, inaccuracies in details which do not aggravate the defamatory allegation do not preclude the defence of justification.
It is established in Ontario case law that the defence of justification or "truth" is a complete defence and, if the facts that comprise the defamatory material are true, a plaintiff's action cannot succeed.
Defendant’s book of Authorities, Leenen v. Canadian Broadcasting Corp., 2000 CarswellOnt 1417, at para. 92.
Ms Gordon testified to the fact that the substance and the words that she posted are true. She went through each and every post claimed by the plaintiffs as being defamatory and explained her words to the Court.
In most of her postings, Ms Gordon used the term “may be” as her statement was based, a according to her testimony, on what she had read and what she was able to find out about what constitutes a puppy mill.
Definition of Puppy Mill
The accepted definition for “puppy mill” is “a high volume, sub-standard dog breeding operation, which sells purebred or mixed breed dogs to unsuspecting buyers. Some of the characteristics common to puppy mills are:
Sub-standard health and/or environmental issues;
Sub-standard animal care, treatment, and/or socialization;
Sub-standard breeding practices which lead to genetic defects or hereditary disorders;
Erroneous or falsified certificates of registration, pedigrees, and/or genetic background.
Note: These conditions may also exist in small volume or single-breed establishments.
(See TRIAL EXHIBIT # 9)
Both the research done by Ms Gordon prior to her statements and the evidence produced at trial indicate that Paws-R-Us fits that definition.
It was only in 2004, after Ms Gordon talked to the Montreal SPCA and was told that Paws-R-Us was a puppy mill that she posted that it “is” a puppy mill. Prior to being told that Paws-R-Us was a puppy mill by Montreal SPCA, she only stated that they “might be” a puppy mill and strongly encouraged people to check them out for themselves. Testimony was given by witnesses for Paws-R-Us that they did just that – whether or not they read the postings of Ms Gordon, they researched what was a puppy mill and went to the facilities to make up their own minds.
It is the defendant’s position that the statements she posted are not defamatory in nature because they are true statements. Ms Gordon found that one of the defining traits of a puppy mill is a lack of care for the health of the puppies sold. The puppy she purchased, and its replacement from Paws-R-Us, were both unhealthy, and in both cases a veterinarian linked the ill health to bad breeding practices.
Ms Gordon was told by the professionals in the animal shelter business – Montreal SPCA and the CHFS – that Paws-R-Us is a puppy mill.
Damages
The Court of Appeal has held that for an award of special damages, there must be a direct causal connection between pecuniary damages suffered and the award made by the Court.
Hodgson v. Canadian Newspapers Co. (2000), 49 O.R. (3d) 161, 189 D.L.R. (4th) 241.
Here, the plaintiffs claim damages due to lost sales, however, in each instance those lost sales are unconnected with the actions of the defendant.
Remedy
It is the defendant’s position that the claims of defamation should be dismissed. Further, because of the genetic medical conditions found in both Kaiger and Blaize, Ms Gordon believes that she should be awarded a portion of the total veterinarian expenses for the two sick dogs that she received from Paws-R-Us. The defendant therefore seeks:
k.As outlined in the crossclaim, partial veterinary costs for the treatment of the genetic disorders in the amount of $8,500.00, which is far less than the actual billed amounts.
l.Costs already awarded through Motions, which are currently held by the Court.
m.Legal costs for the action before the Court, plus disbursements, or as assessed by the Court.
n.Any further remedy that this Honourable Court deems just.
All of which is respectfully submitted on April 16, 2009
And here is the court decision. Click on the images to enlarge.
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