Judge
tosses airline's $10M libel suit against pilot, saying importance of safety
debate outweighed harm
Alan Eugeni's book about his time with Air Georgian was at times
sensationalist, but 'on a matter of significant public importance,' the judge
wrote
Pilot Alan Eugeni, author
of the self-published book The Next Plane Crash, and former pilot for Air
Georgian, at a hanger in Saint-Hubert, Quebec, in October 2017.Dario Ayala for
National Post
An Ontario judge has thrown out a major regional airline's $10-million libel
action against one of its former pilots, ruling the lawsuit had an unduly
chilling effect on discussion of air safety.
Alan Eugeni's book about his experiences at Air Georgian - where his starting
salary as a pilot was $32,000 - was at times provocative and sensationalist and
lacked input from the airline, said Justice Shaun O'Brien.
But she found the public importance of debate about the company's safety record
outweighed any damage done to the firm, an Air Canada sub-contractor.
"Mr. Eugeni spoke out on a matter of significant public importance,"
concluded the judge in a 16-page written decision released this week. "He
caused limited harm to Air Georgian with his self-published book, but was
silenced by a much more intimidating litigant ... I consider the balance to
weigh in favour of protecting the expression."
The pilot had asked that the case be dismissed before trial under the
province's relatively new anti-SLAPP legislation, designed to combat defamation
suits that suppress important public discourse. (SLAPP stands for
"strategic lawsuit against public participation.")
Eugeni criticized Air Georgian's approach to safety and maintenance in a book
and in interviews with the National Post, criticisms that were echoed by other
current and former crew members with whom the Post spoke as part of a 2017
investigation into the airline's safety record. A Transportation Safety Board
report last year also raised systemic concerns about the airline's maintenance
practices.
Georgian, which carries 1.5 million passengers a year on 63,000 short-haul
flights under the Air Canada Express banner, has strenuously rejected the
complaints, noting it is one of just a handful of Canadian carriers that have
passed a rigorous international safety audit.
Air Canada ended its contract with Georgian after the Post's investigation.
Their deal is slated to end next February as another company - Jazz Aviation -
takes over its flights. Both Air Georgian and Air Canada have denied the end of
the contract is connected to the Post's investigation or to Georgian's safety
record.
In the wake of the Post's reporting Georgian threatened to sue both the
newspaper and another pilot, but proceeded only with a suit against Eugeni.
Mr. Eugeni appears to have made minimal efforts to verify his serious
allegations
The airline said that while the ruling validates some of its concerns, it
disagrees with the bottom line and plans to appeal.
The judge's assessment of Eugeni's book "confirms the position (Georgian)
has taken from the outset - that Mr. Eugeni has been pursuing his own agenda
with little regard to the objective facts," said Air Georgian lawyer
Matthew Law.
The ruling should also give "considerable pause" to the Post in repeating
such allegations, Law said.
Eugeni said Wednesday it felt "wonderful" for the case to be
dismissed, and that he stands by everything he has said about his former
employer.
Under the SLAPP process, the judge first had to decide if the airline had a
reasonable case, and if there was a reasonable possibility that Eugeni's
defences could fail at a trial.
One of those defences was that the statements were true, but the judge noted
that Air Georgian had submitted evidence contradicting some of Eugeni's
allegations, including claims he experienced four emergency landings and that
all his simulator training was in the middle of the night.
"His wording at times is provocative and sensationalized," said
O'Brien. "While Mr. Eugeni's focus was on telling his own story, he
appears to have made minimal efforts to verify his serious allegations."
Air Georgian carries 1.5
million passengers a year on 63,000 short-haul flights under the Air Canada
Express banner. But their deal is slated to end next February. Peter J.
Thompson/National Post
Regardless, the pilot's lawyer, Howard Winkler, conceded for the purpose of the
pre-trial motion that a reasonable trier could rule Eugeni had no valid
defence.
That meant the case came down to whether the public's interest in hearing
Eugeni's views about air safety outweighed any harm done to Georgian's
reputation.
O'Brien said that possible harm - mostly an increased turnover in the company's
staff - seemed minimal and was more likely to stem from other reasons, like an
industry-wide shortage of pilots and articles in the Post. Eugeni's book sold
only 247 copies before Georgian convinced Amazon to remove its listing, and the
libel suit prompted the pilot to take down his own website selling it.
Meanwhile, the book's disappearance suggests the suit impeded the pilot's
ability to express himself, said the judge.
"He has said he does not feel free to pursue an important conversation
about the safety of regional airlines and, in particular, Air Georgian,"
wrote O'Brien. "In other words, actual libel chill is in issue here."
Winkler said the ruling is among about a dozen so far under Ontario's 2015
SLAPP law, which will be further tested in two Supreme Court of Canada appeals
this November.
"It's a victory for freedom of expression," he said of the decision.
"Its application was exactly as the legislation intended, and that is to
end costly, protracted litigation by those in a superior power position against
those who are speaking out in the public interest."
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