IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Spetch v. Colthorpe and Colthorpe,
	2003 BCSC 1681

Date: 20031107

Docket: S0012212

Registry: Chilliwack

Between:

ASHLEY TERESA SPETCH

PLAINTIFF

And

COREY RICHARD COLTHORPE and

ALBERT CHARLES ROBERT COLTHORPE

DEFENDANTS

 

 

Before: The Honourable Mr. Justice Grist

Reasons for Judgment

Counsel for the plaintiff	Peter Keighley,Q.C.
Counsel for the defendants	Self-represented
Date and Place of Trial/Hearing:	June 24 and 25, 2003
	Chilliwack, B.C.

 

[1]            The plaintiff’s mother, Virginia Colthorpe, and the defendant, Albert Colthorpe, married in August 1999.  The defendant Corey Colthorpe is Albert’s son.  The plaintiff, Ashley Spetch, and Corey were about the same age and attended the same high school.  After they were introduced they initially seemed to get along quite well but even before they and their parents moved to the same home, problems began to develop. 

[2]            In the spring of 1999, Corey suggested to a friend and subsequently to his father that he and Ashley had been “fooling around”.  Ashley learned of what was said to the friend and was very embarrassed by the statement.  Albert Colthorpe told his son that he didn’t want to know anything more about it and to knock it off, meaning there shouldn’t be any untoward contact between Corey and Ashley in light of the family situation.  The two parents discussed the incident.  Ashley’s mother was sure the statement was untrue, but no further steps were taken to resolve the incident.  Ashley said that there was tension resulting from the statement for a while, but that she got over it eventually and let it go.

[3]            I should say at the outset that the preponderance of evidence in this case indicates that the statements of the defendant, Corey Colthorpe, alleging a sexual relationship with the plaintiff are untrue.  The plaintiff impressed as a pleasant young woman of good character who was most unhappily caught up in an acrimonious family dispute that, along with other issues between her mother and step-father, spiralled grossly out of proportion.

[4]            After the parents began cohabitation and for approximately a year thereafter, from Ashley’s perspective, nothing more developed in respect of allegations of a sexual relationship with Corey Colthorpe, until the summer of 2000.  By that time there had been a period of separation between her mother and step-father and continuing strained relations following the reconciliation.

[5]            Ashley and Corey were both in grade twelve during that year.  Ashley was doing well academically but Corey was having trouble with marks and on one occasion was suspended as a result of a behavioural problem at school.  It is clear that Ashley’s mother was very critical of Corey and amongst other things believed he was involved in using drugs.  Corey’s father was defensive of criticism of his son and felt that his wife was being too hard on him.  Albert and Corey in return made comments to the effect that Ashley was not as perfect as her mother might believe and there were suggestions that Ashley had slept over at a boyfriend’s house.  That year Ashley was involved in trying to attain grades that would allow her to go to university, was keeping a part-time job and trying to keep up with other extra curricular activities.  The strain of this and the tense situation at home reached the point that she left to live with her grandmother for a time shortly after she graduated from high school.

[6]            The deterioration in the marriage over the year the parents lived together involved other points of conflict.  Virginia Colthorpe’s evidence was that the relationship with her husband prompted her to get counselling in February 2000, shortly after they separated for approximately two months.  She characterized Albert Colthorpe’s behaviour as being abusive.  Eventually, the subject of a sexual relationship between Corey and Ashley again became the focal point of a dispute between her and her husband.  On information given by Corey, he told her that the sexual relationship had continued through the spring of 2000.  This added generally to the comments that Ashley was less than perfect.

[7]            Ashley was eventually told of the further allegations about her and Corey several weeks after she had moved to her grandmother’s.  Her natural father, Alan Spetch, had learned of the allegations and tried to intervene to work out some resolution to the festering conflict.  He felt that it was a matter of fairness that Ashley should be told what was being said.  There was some discussion between him and Albert Colthorpe about the situation and working towards some resolution, however, by this time, the relationship between Albert and Virginia Colthorpe had become so polarized on this issue and others that there was little likelihood of a solution. The parties separated shortly after.

[8]            Virginia Colthorpe’s complaints against her husband included allegations of assault which she subsequently reported to the police.  Albert Colthorpe was charged and for a time placed on conditions of bail which prohibited contact with his wife.  Subsequently, harassing actions by Virginia Colthorpe prompted charges to be laid against her, which in like fashion prompted a restraining order. 

[9]            Letters written by Virginia Colthorpe to her husband after separation showed a surprising swing in attitude towards him.  A letter in April 2001 after Mr. Colthorpe had arranged some counselling, thanked him for his efforts and explained that the complaints she had made of him to the police were exaggerated and influenced by others.  She asked him to forgive her for being so awful and said that she would do anything she could to make amends for the wrong she caused him.

[10]        In a subsequent letter, in November of 2001, she addresses him as “tough guy”.  She says in the letter that he is almost as sick as his son and says, “he hasn’t cost you enough yet!” in respect of the continuing legal proceedings.  She also admitted in her evidence to making pejorative references to Corey Colthorpe as a homosexual and threatening to cause others to do him physical harm.  I am satisfied that Mrs. Colthorpe took up excoriating her husband and his son with a vengeance, ultimately causing him to move his business and place of residence to Alberta.  The degree of conflict which has existed through all of this has no doubt added to the emotional content of the earlier events.

[11]        The law of slander requires that, except in certain recognized categories, the action be brought on proof of special damage.  Until 1979, the Libel and Slander Act R.S.B.C., 1996, c. 263, included an exception in cases where the defamation imputed unchastity or immoral behaviour to a woman.  That exception no longer appears in the statute and accordingly the law continues to require proof of special damage to succeed in bringing an action based on defamatory remarks of this sort. 

[12]        The nature of the special damage required is spoken of in Gatley on Libel and Slander, 9th ed. (London: Sweet & Maxwell, 1998).  At paragraph 5.2 special damage is defined as:

Some actual temporal loss – the loss of some material or temporal advantage which is pecuniary or capable of being estimated in money.  So, for example, the requirement is satisfied where there is the loss or refusal of an office or employment or the dismissal from a situation, or the loss of a client, or of a dealing.

 

[13]        At paragraph 5.5 the distinction is made between special damage that results directly from the slander and special damage that is the result of illness or other emotional effect upon the person defamed.  The paragraph provides:

Social ostracism does not constitute special damage, nor does the injury to the plaintiff’s feelings or annoyance which flows from it.  Furthermore, even physical illness consequent upon the slander is too remote to support an action.  Bodily illness is not the natural or the ordinary consequence of the speaking of slanderous words.  In all the innumerable actions for slander there are no precedents for alleging illness to be sufficient special damage.

 

[14]        The text comments further that actions for libel or for slander in those exceptional cases which do not require proof of special damage, may allow for compensation for injury to health, but that this is a special rule of causation applicable only to those types of actions.

[15]        Ashley’s evidence was that she was working in a business managed by her natural father in the summer of 2000 and the stress of the situation caused her to take some time off work during that summer.  No Evidence was given of the exact duration of her time off work or the wage loss incurred.  She also said that she went with her mother to certain counselling sessions to try and deal with the situation.  A number of receipts made out to her mother were entered into evidence but Mrs. Colthorpe was not able to specifically identify which of these receipts might apply to counselling for her daughter.  Further, the plaintiff’s evidence was that the stress of the situation and its effect on her required her to take fewer courses at university through some of the terms she has attended since.  She has kept up with the usual course of advancement through three years at university by taking summer courses.  Counsel argued that she otherwise would have been able to take more employment had she not taken these summer courses.  This loss of employability, the earlier wage loss and the expense of counselling were put forward as special damage.

[16]        As I have already said, I am of the view that the Plaintiff was an innocent victim of what became a progressively more vicious conflict between her mother, her step-father, and his son.  I do not doubt that Ms. Spetch was adversely affected by the stress of the conflict existing in the home and subsequent to the separation, which included the embarrassment of the hurtful comments about sexual relations with Corey Colthorpe.  However, any loss of employment, the cost of any counselling that may have been necessary, or any delay in her schooling, followed the emotional upset and was not an independent consequence of the defamation.

[17]        The restricted applicability of slander as a cause of action likely has at its root the objective of discouraging these sorts of legal actions.  Many of the authorities are based upon cases of some antiquity and principles established may be more difficult to justify in modern circumstances.  However, in light of the fact that the Legislature has already passed a statute bearing upon the cause of action, I expect any deviation from established principles, if appropriate, requires statutory change.

[18]        In the ultimate, the plaintiff’s action is not well founded in the law of slander and the action must be dismissed.

“W.G. Grist, J.”
The Honourable Mr. Justice W.G. Grist