2006 BCSC 65 Newman et al v. Halstead et al

Before: The Honourable Madam Justice Dorgan

Reasons for Judgment

Counsel for the Plaintiffs and Counsel for the Defendant by Counterclaim:	H.A. Mickelson A.D. Gay L.C. Fong
Counsel for the Defendant: Susan Pearl Halstead	No one appearing
Dates and Place of Trial/Hearing:	January 24, 25, 26, 27 and 31, 2005; February 1, 3, 7 and 8, 2005
	Nanaimo, B.C.
	March 17 and 18, 2005 Victoria, B.C.

INTRODUCTION

[1] A defamation case, by its nature, requires the court to consider the values of acceptable social behaviour founded on respect for individual dignity and reputation, together with that of free speech, a cornerstone of which is fair comment. Added potential defences of justification, or truth, and/or qualified privilege may also pertain.

[2] In this case of alleged defamation, nine of the plaintiffs are public school teachers, one of the plaintiffs is a retired school board trustee, and one is a parent whose children formerly attended public school. Two of the plaintiffs, Elizabeth Eakin and Andrew Chisholm, reside in Prince George and the plaintiff David Halme lives in the Cowichan Valley. The rest of the plaintiffs and the defendant all reside in the Comox/Courtenay area.

[3] The defendant, Ms. Halstead, long involved in her community as a volunteer, has become focused on her concern that certain teachers, school board officials and parents involved in the education system have acted improperly. The defendant has posted her views, including very serious allegations of manifestly improper conduct, on Internet websites, chat rooms and via e-mail. Most of her allegations involve the plaintiffs.

[4] For context, evidence was called regarding years of interaction, sometimes conflict, between Ms. Halstead and a number of people holding various positions within School District 71, the Comox Valley District (the "District"). The plaintiffs' claim is in relation to events alleged to have taken place within two years of the commencement of their action.

THE ACTION

[5] The plaintiffs commenced this action in January 2004. They seek damages, including punitive damages, and broad injunctive relief. In addition to Ms. Halstead, the plaintiffs named several Internet service providers and Internet website hosts. The plaintiffs discontinued against the other named defendants and proceeded solely against Ms. Halstead.

[6] Ms. Halstead, then represented by counsel, filed a statement of defence in March 2004. In May 2004 she filed a counterclaim against the British Columbia Teachers’ Federation ("BCTF") alleging the organization is the force behind the plaintiffs’ action, and alleging it had committed the tort of maintenance or champerty.

[7] In June 2004, counsel for Ms. Halstead advised plaintiffs’ counsel that the defendant intended to "walk away" from the litigation (including all pre-trial proceedings and the actual trial). While Ms. Halstead still had counsel, the plaintiffs obtained an order compelling Ms. Halstead to participate in examinations for discovery in August 2004. It appears that Ms. Halstead has represented herself from that point on.

[8] Ms. Halstead was examined for discovery over the course of six days. In response to demands for pre-trial discovery, she produced over 6,000 pages of documents, many of which are exhibits in this trial.

[9] Ms. Halstead chose not to participate in the trial of this matter. She did not appear on the first day of this trial, either personally or through an agent. The court was offered no explanation for her absence.

[10] The plaintiffs applied pursuant to Rule 39(33) for an order that the trial proceed. While they were then in a position to take default judgment against Ms. Halstead, they instead pressed the court to try their case on its merits (with all the risks that entailed), to allow them the opportunity to prove that they were in fact the subject of defamatory statements made and published by the defendant. In making that ruling, I found as facts that Ms. Halstead knew the date and place of trial and that her absence was deliberate. I ordered that the trial would proceed, notwithstanding the absence of Ms. Halstead: Newman v. Halstead (3 February 2005), Nanaimo S040599 (B.C.S.C.) (unreported).

[11] The Second Amended Statement of Claim (the "Amended Statement of Claim") cites over sixty allegedly defamatory statements which the plaintiffs say were published by Ms. Halstead. The plaintiffs allege that commencing in the summer of 2002, Ms. Halstead created two or more Internet "chat rooms" or "bulletin boards" through which she communicated with parents and others in the education system, and that in February 2003 she created a website named "GAFER", apparently an acronym for "Growing Advocacy for Education Reform". The plaintiffs allege that Ms. Halstead published defamatory statements over the Internet through these vehicles she created and operated.

[12] Ms. Halstead writes e-mail prodigiously. Some of the alleged defamatory statements enumerated in the Amended Statement of Claim are contained in e-mail messages distributed to large numbers of recipients. The alleged defamatory statements attributed to Ms. Halstead are repetitious, and use the same, or variations of the same, language.

[13] Each of the plaintiffs except Andrew Chisholm gave evidence, as did non-party witnesses called by the plaintiffs. I was advised that the defendant apologized to Mr. Chisholm and that accordingly, Mr. Chisholm would seek a ruling on the tort claim and, if successful, nominal damages.

THE COUNTERCLAIM

[14] Ms. Halstead presented no case to support her claims and, accordingly, her counterclaim against the BCTF is dismissed with costs.

BACKGROUND

[15] Ms. Halstead is a parent whose children attended public schools in the Comox Valley. She is self-described as a long-time community volunteer activist. She appears to be a quasi-public figure in the Comox/Courtenay area. From 1999 to 2000, she sat on the executive of the Cumberland Junior School Parent Advisory Council ("PAC"). She was also a member of the executive of the PAC at Cumberland Elementary and GP Vanier Secondary School. For a number of years, concluding in 2001, she was on the executive of the District PAC, an umbrella organization of which all the PACs are members. She was involved with the BC Confederation of Parent Advisory Councils ("BCCPAC") of which each District PAC is a member. She was the parent representative on the accreditation team which reviewed and accredited Cumberland Junior School and various other schools.

[16] Ms. Halstead has also been on the executive and chaired various advocacy groups including: "Parents Against Violence Everywhere" ("PAVE"), of which she is co-founder and current president; and the Comox branch, which she founded, of the Cowichan Valley Learning Disability Association ("CVLD"). As president of PAVE she has had contact with the media, with government representatives, and others in the "anti-bullying" movement. She has spoken to audiences of over 200 people in locations around the province.

[17] Ms. Halstead twice campaigned for the office of school trustee in School District 71, once in 1999 when she apparently lost by a single vote, and again in 2002. She regularly writes letters to the editors of the local newspapers, letters she signs as "President, PAVE – Parents Against Violence Everywhere Society" or "President, CVLD – Comox Valley Learning Disabilities Association". She has attended innumerable District 71 School Board (the "School Board") meetings over the years. She formerly sat on a number of School Board committees.

[18] Further, Ms. Halstead has filed human rights complaints and freedom of information requests. She has dealt with the provincial Office of the Ombudsman. In other words, she is well acquainted with the processes involved with and required in dealing with authoritative institutions within her community and indeed the province.

[19] The evidence, including Ms. Halstead's own evidence on discovery, clearly shows that she created Internet chat groups or bulletin boards through which she communicated with parents and others within the education community in the Comox Valley and beyond. In February 2003 she created the GAFER website, the access to which was through addresses on the Shaw and Telus systems. These modes of Internet communication supplemented her use of e-mail by which she distributed messages to a broad audience, at times copying 20 or 30 people with her original message, some of whom were the plaintiffs' employers and immediate supervisors, including principals, vice principals, and the Superintendent and Assistant Superintendent of School District 71. By e-mail, Ms. Halstead regularly made allegations of teachers' misconduct and allegations that the School Board mishandled or covered up the behaviours she referred to.

[20] On Ms. Halstead's GAFER website was a page entitled "B.C.'s Least Wanted". On that page was a chart designed in a rogues' gallery format entitled "Least Wanted Educators". The chart consisted of a gallery of names and photographs of people Ms. Halstead considers to have engaged in wrongful conduct within the education system. The "Least Wanted Educators" chart was broken down into a number of subcategories, including:

"Criminal Convictions" - where there were names and pictures of teachers and others who have been convicted of crimes. Many of these are sex-related crimes committed against students;

"Criminal Charges" - where there were names and pictures of teachers and others who have apparently been charged with crimes;

"Decertifications" - where there were names and pictures of teachers who have had their certificates revoked by the College of Teachers;

"College of Teachers' Discipline" - where there were names and pictures of teachers who have been disciplined by the College of Teachers;

"Educators in Court" - where there were names and pictures of teachers and others involved in various forms of litigation;

"Bully Educators" - where there were names and pictures of teachers and others who Ms. Halstead alleges have committed acts deserving of rebuke, or deserving of the description "bully"; and

"School Board Bullies" - where various school boards were named as having engaged in 'bully tactics', allegedly against parents and students.

[21] Seven of the plaintiffs were named as "Bully Educators" in the "Least Wanted Educators" chart: Edmund (Ted) Newman, David Leonard (Len) Morrow, Roberta Ling, Kenneth Piercy, Andrew Chisholm, Elizabeth Eakin, and David Halme. Photographs of Mr. Newman and Mr. Morrow were posted on the site under the “Bully Educators” heading. Those whose photographs were not posted on the site were depicted by a cartoon image of an apple with a worm in it.

[22] There was a further link on the GAFER site to "RCMP investigations". The plaintiff Mr. Newman was identified on this page in addition to being named a "Bully Educator".

[23] A click of the mouse on the name or photograph of a person on the "B.C.’s Least Wanted" page linked the viewer with documentation regarding the person's alleged misdeeds. That documentation included newspaper articles, letters to the editor, correspondence exchanged between Ms. Halstead and others, documents obtained by Ms. Halstead from regulatory bodies, and commentaries written by Ms. Halstead.

[24] Ms. Halstead created a separate link on the “B.C.’s Least Wanted” page to a "Bully Parent" page. The link to that page was represented by a cartoon image of a boxer. Ms. Halstead placed the plaintiff Gale Wheeler's name on that page. A click of the mouse on Ms. Wheeler's name linked the viewer to information and commentary on the alleged misdeeds of Ms. Wheeler. Ms. Wheeler then had two children in the local school system and was active in the Parent Advisory Committee with Ms. Halstead for a number of years.

OVERVIEW OF THE LAW OF DEFAMATION

[25] The common law recognizes that every person is entitled to his or her good name or reputation. That good name or reputation cannot be impeached without lawful justification or excuse. In Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129 (Hill), Cory J. explained the importance of dignity to a person’s reputation as follows (at paras. 107-108):

[107] ... A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society's laws. ...

[108] Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of a person. It is that good repute which enhances an individual's sense of worth and value. False allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre. A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited.

[26] In a defamation action, a plaintiff has the burden of establishing that the impugned words were written and published, that the words referred to the plaintiff, and that the words complained of are defamatory. See P.G. Restaurant Ltd. v. Northern Interior Regional Health Board et al (2004), 25 B.C.L.R. (4th) 242, 2004 BCSC 294 at para. 111, rev'd on other grounds 2005 BCCA 210 (P.G. Restaurant).

[27] In law, "publication" in this context, is essentially the communication of a defamatory statement to a third party; publication to a wide audience is not required. This can take place through a variety of media, including through the Internet.

[28] A published defamatory falsehood in writing constitutes a libel. The threshold inquiry in every defamation action is whether the words that are published are reasonably capable of a defamatory meaning: Brown, The Law of Defamation in Canada, 2nd ed., (Toronto: Carswell, 1994) at 171.

[29] The essence of a defamatory statement is its tendency to injure a person's reputation. A statement is defamatory if it tends to lower the reputation of the plaintiff in his or her community in the estimation of reasonable persons: Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 at 24, 126 D.L.R. (4th) 609 (Botiuk).

[30] In the case of Cronk v. Cundall (1993), 87 Man. R. (2nd) 141, M.J. No. 379 (Q.B.) (QL) (Cronk), Justice Wright of the Manitoba Court of Queen's Bench wrote at paras. 26 to 27:

[26] The law of defamation protects a person's reputation from defamatory falsehoods. A publication is considered defamatory if it has the tendency to lower that reputation in the estimation of right thinking members of society. The court's duty is to determine if the alleged defamatory material, upon being given its natural and ordinary meaning as understood by average right thinking and reasonable persons, could convey a derogatory meaning tending to defame the plaintiffs.

[27] Courts have found statements to be defamatory where their impact is to expose a person to hatred, contempt and ridicule, or cause a person to be detested, despised or regarded with feelings of dislike, fear or scorn.

[31] In Cronk, Justice Wright further notes that if a statement published by a defendant is found to be defamatory, it is presumed to be false. If the truth of material found to be defamatory is established, the publication of the material is not actionable no matter "how callous or malicious the defendant may be in publishing ..." (at para. 29).

[32] The affirmative defences to defamation are found in the plea of justification, or of fair comment, or of qualified privilege. If the plaintiff proves the published words are in fact defamatory of him or her, the defendant has the onus of proving that at least one of the defences applies. In this case, while the principal defence raised by Ms. Halstead's pleadings is justification, she also pleads fair comment and/or qualified privilege.

[33] While it is acknowledged that Ms. Halstead would not participate in the trial process and that she bears the onus of establishing the defences raised in her pleadings, the plaintiffs specifically addressed the three defences raised in Ms. Halstead's statement of defence in their evidence and submissions. They submit they did so because the law acknowledges that public vindication is pivotal in a libel action and because they viewed as imperative the need to present the fullest possible case in the absence of Ms. Halstead.

[34] Justification is the technical name for a defence of truth: Hare & Grolier Society v. Better Business Bureau, [1947] 1 D.L.R. 280, 1.W.W.R. 25, at 284 (B.C.C.A.) leave to appeal to S.C.C. refused (1947), 1 W.W.R. 289. It is a complete defence to a defamation action. Truth is a defence even if the defendant spoke maliciously with the intention of ruining the plaintiff’s reputation: Taylor‑Wright v. CHBC-TV, a division of WIC Television Ltd., [1999] B.C.J. No. 334, at para. 34 (S.C.), aff’d without discussion on this point (2000), 194 D.L.R. (4th) 621 (B.C.C.A.). The defendant's state of mind is irrelevant to the defence of justification.

[35] The defence of fair comment was summarized by Goepel J. in P.G. Restaurant, supra, at paras. 156 and 157, as follows:

[156] As Brown states in vol. 2 at p. 15-14, the defence of fair comment is established where the following five elements are present:

To satisfy the requirements of this defence, it must be shown that the words are (1) comment; (2) based upon facts that are true; (3) made honestly and fairly; (4) without malice; (5) on a matter of public interest.

[157] For a statement to be a comment it must be clearly recognizable as a statement of opinion, not as a bare statement of fact: see Vander Zalm v. Times Publishers Ltd. (1980), 109 D.L.R. (3d) 531 at 535 (B.C.C.A.).

[36] The defence of fair comment will fail if the plaintiff proves that the dominant motive for publishing the defamatory expression is actual or expressed malice.

[37] A defendant is actuated by express malice if he or she publishes a defamatory expression:

1. Knowing it is false (Hill at para. 145; Botiuk at 29); or

2. With reckless indifference whether it is true or false (Botiuk at 29); or

3. For the dominant purpose of injuring the plaintiff because of spite or animosity; or

4. For some other dominant purpose which is improper or indirect, or also, if the occasion is privileged, for a dominant purpose not related to the occasion: Botiuk at 29.

[38] The defence of qualified privilege protects defamatory errors of fact which are not excused under the defences of justification or fair comment. Qualified privilege applies to an occasion where the defendant has an interest or duty (legal, social, or moral) to communicate the defamatory expression and its recipients have a corresponding duty or interest to receive that communication: Pressler v. Lethbridge (2000), 86 B.C.L.R. (3d) 257 at 295, 2000 BCCA 639. On the facts in the case at bar, I find that the defence of qualified privilege simply does not apply.

[39] Each of the defences of justification and fair comment require proof that the impugned statements, or the facts upon which they are based, are true. In her pleadings, Ms. Halstead asserts that her published statements are true, yet she refused to come to this trial to support that assertion. The evidence shows that Ms. Halstead is a prolific writer, and that she converses with persons in authority and deals with authoritative institutions regularly and readily. One would have thought she would take advantage of the opportunity this trial afforded her; the opportunity to make public, yet again, her apparently long-held belief that each of the plaintiffs has acted improperly. This trial was her chance to prove the truthfulness of her allegations yet she deliberately chose not to attend. She simply would not take the witness stand in a public courtroom.

[40] Our courts regularly hear from self-represented litigants, some of whom are decidedly less articulate than Ms. Halstead appears to be. Much of Ms. Halstead’s correspondence and publications filed as evidence in this trial indicates that Ms. Halstead is capable of researching legal topics, and understanding and utilizing regulatory regimes. For example, in some of her writing, she refers to sections of legislation, or to the law generally, in support of her positions. Against this backdrop, it is surprising that Ms. Halstead did not appear in her defence. Ms. Halstead should not expect to escape the legal consequences -- the responsibility for her actions -- by simply opting out of the process at the eleventh hour.

CONTEXT IN WHICH THE ALLEGED DEFAMATION OCCURRED

[41] The context in which the alleged defamatory statements were made by Ms. Halstead is of some import. Several witnesses testified regarding Ms. Halstead's lengthy campaign of conflict within the school system. The evidence establishes that since in or about 1997, Ms. Halstead has been highly conflict-driven, waging battles with everyone from PAC parents to teachers, trustees, and the Superintendent of Schools.

[42] Danny White, a public school trustee in School District 71 since 1986, testified that Ms. Halstead has become well known to him in the years he has worked as a school trustee. He testified that in around 1996 or 1997, Ms. Halstead began sending letters to District 71 School Board members on a frequent basis. Much of the correspondence he received as a Board member was correspondence from Ms. Halstead directed to the Superintendent or others within the District, (such as School Board staff), copied to the seven members of the Board.

[43] Mr. White testified that he kept track of the e-mail correspondence he received from Ms. Halstead between the spring of 2003 and early 2004. That e-mail correspondence comprises 11 computer floppy disks. The court received a 2-inch binder as an exhibit containing over 40 e-mail messages Mr. White received from Ms. Halstead and they represent, according to Mr. White, about one percent of those he received from her between 1997 and 2003.

[44] Mr. White testified that Ms. Halstead's output of correspondence exceeded the combined output of all other persons in the entire District who wrote to the Board. He testified that many of Ms. Halstead's letters or messages were lengthy.

[45] Ms. Halstead’s e-mail messages were sent to a wide audience, including District staff, trustees, principals and vice principals, media outlets, and politicians such as the MLA for the Comox area and the Minister of Education.

[46] In addition to the correspondence were Ms. Halstead's written complaints to various officials, agencies and tribunals, which she copied widely to various people including Board members. Mr. White and the plaintiff Mr. Morrow, a former Board member and chair, testified that the number of "official" complaints from Ms. Halstead was "considerable". Mr. White testified this included complaints to the Human Rights Tribunal, the Ombudsman, the College of Teachers, the Workers Compensation Board, the Information and Privacy Commissioner, and the Superintendent of Schools.

[47] Mr. White further testified that as part of her campaign, Ms. Halstead filed an immense number of Freedom of Information ("FoI") requests, followed up by a number of formal complaints to the Information and Privacy Commissioner. Mr. White testified that Ms. Halstead would use the requests to try to obtain confidential information from the files of various personnel, including those of teachers. The frequency and scope of Ms. Halstead’s FoI requests became so oppressive that the Board made an application under the Freedom of Information and Protection of Privacy Act for permission to cease responding. Mr. White testified that this resulted in a mediated agreement whereby Ms. Halstead was limited to filing two requests every three months.

[48] The evidence shows that Ms. Halstead has a significant number of supporters in the parent community. For example, a number of parents wrote letters to the Select Standing Committee on Education to express support for positions taken by Ms. Halstead in a submission to that Committee.

[49] Ms. Halstead’s campaign had an increased profile due to Ms. Halstead’s frequent reference to herself as the president of either PAVE or the Comox Valley branch of the CVLD. There is evidence to suggest that Ms. Halstead used these organizations, and her title of "president", to advance her personal views and her personal campaign. For example, in a PAVE press release, Ms. Halstead twice refers the reader to her own GAFER website, referring to it as "the one-stop advocacy site". Another example is Ms. Halstead’s October 24, 2001 letter to the Board complaining about Mr. Morrow’s behaviour at a student disciplinary hearing. Ms. Halstead attended that hearing as an "advocate" for the family, not as a representative of the Learning Disabilities Association, yet she put her complaint on the Association’s letterhead. Further, Ms. Halstead frequently signed letters to the editor as "Sue Halstead, President" of PAVE or the CVLD.

[50] Ms. Halstead’s profile appears to have extended broadly within education circles. In one of her e-mail messages, dated July 16, 2003, Ms. Halstead attaches a further message from the Project Coordinator of an anti-bullying project sponsored by the Canadian Public Health Association. The Coordinator states that Ms. Halstead was recommended by a representative of the University of British Columbia as "being able to offer excellent advice and information from a parent’s perspective on the issues of bullying".

[51] Ms. Halstead repeatedly used highly charged language in making allegations and accusations in published statements to and about the Board, allegations and accusations which, according to the evidence of Mr. White and Mr. Morrow, were not warranted. She frequently published statements that the Board was involved in “unimaginable corruption” and engaged in "cover-ups" or "collusion". She would further allege that the Board was covering up "child abuse" and "crimes", and was guilty of "inciting hatred" and levelling "war-like psychological abuse" against her.

[52] Mr. White testified that almost all of Ms. Halstead's correspondence contained accusations of misconduct about someone. The evidence of the plaintiff Mr. Morrow and the plaintiff Ms. Wheeler corroborated this evidence. Mr. White and Mr. Morrow categorically denied Ms. Halstead’s allegations that the Board was corrupt and engaged in cover-ups of alleged misconduct. They testified that all complaints made to the Board, including those of Ms. Halstead, were investigated. Whenever Ms. Halstead's complaints were found to be groundless, thereby requiring no further Board involvement, she often made and published statements that the Board was "covering up" or was otherwise incompetent.

[53] On a number of occasions, Ms. Halstead complained to outside agencies and was told that her allegations had not been substantiated. For example, the Ombudsman was "not able to substantiate" Ms. Halstead’s complaint that "School District 71 failed to respond to her queries and efforts to hold the Board of Trustees accountable for the conduct of various district staff".

[54] One of Ms. Halstead’s allegations was that she herself was being libelled and slandered. She went so far in one piece of correspondence to say that it had been "proven" that Mr. Morrow had libelled her. Mr. Morrow testified this simply was not true.

[55] Once this action was commenced, Ms. Halstead filed complaints with the B.C. College of Teachers about a number of the plaintiffs. She described the plaintiffs' lawsuit against her as "vengeful" and "vexatious".

[56] There is evidence that Ms. Halstead actively promoted her GAFER website and received press coverage in relation to it throughout the year 2003. Her website was referred to in an article in the Vancouver Sun and in a Mission newspaper from the Fraser Valley. Her website was also referred to in articles in the Cowichan News Leader. At one point, V.I. News interviewed Ms. Halstead as part of a larger piece on education. Her website and the work she was doing to "advocate" for children were referred to in a CHEK-TV news report and in a Vancouver Sun article. Mr. White testified that in 2002, there was an article or letter published in one of the local Comox Valley papers approximately every two weeks that made reference to Ms. Halstead's GAFER website. Many of Ms. Halstead's e-mails indicate they were sent to media outlets including the Comox Valley Echo and the Vancouver Sun.

[57] Mr. White testified that all of the District trustees were aware that Ms. Halstead had a website named "GAFER". He testified that it was the topic of conversation among trustees, including at the Vancouver Island level and at the Annual General Meeting of the B.C. School Trustees Association. He also testified that the GAFER site was widely known amongst District staff. A hit counter on that site shows the extent of access to it. Before this action started and as of December 30, 2003, the GAFER site had 3,598 "hits". By July 13, 2004, it had 5,113 "hits".

[58] The evidence shows that Ms. Halstead consistently and regularly, through correspondence, articles, and her website, expressed anti-teacher sentiment. An example of such sentiment is found in an e-mail message Ms. Halstead wrote to the plaintiff Mr. Morrow in which she stated:

As far as my personal beliefs of the political climate in education, I find it very depressing and personally am feeling the heat from all partners. The turf war has started no doubt… Teachers are out of control. I believe a strike will be deadly for the teachers because the support workers have suffered much to supply them with their big wages, job security and PERCS… [emphasis in original]

[59] Further evidence of this sentiment is found in Ms. Halstead's November 1, 2002 e-mail to the Superintendent of School District 71, where she writes:

So grow up and start behaving like the professionals every teacher keeps harping about being and stop trying to keep parents from seeing what exactly it is that you do during your 6.5 hour day.

...

How can we respect a profession when they don't respect themselves? They certainly don't demand respectful behaviour of each other either.

[60] In a May 2003 e-mail sent to Mr. White, Ms. Halstead expressed her views of the BCTF:

It [the website] shows that parents can make a difference, but it seems we can only make a difference by being as loud, obnoxious and tenacious as the BCTF...

Don't forget that Administrators came from teaching roots and ideologies. When things get uncomfortable for them they will fall back on that.

[61] In her submission to the Select Standing Committee on Education, Ms. Halstead concluded her submission by saying:

As long as the BCTF is driving the bus, Children will continue to be the road kill left at the side.

[62] Mr. White testified that by about 1997, Ms. Halstead became "very opposed to the public system" and "very aggressive" toward District staff. He testified that Ms. Halstead would "go through" the entire staff of the District office, and that her relationship with each individual would start positively and then inevitably turn sour.

[63] The plaintiff Mr. Morrow testified that he had a good relationship with Ms. Halstead in the early to mid-1990s and that Ms. Halstead's input and involvement were constructive at that time. He testified that this changed between 1996 and 1997, and that he became the lightning rod for her increasing animosity. Mr. Morrow testified that this was one of the reasons why he voluntarily stepped down as Board Chair in 1997, and ultimately one of the reasons he did not run in the 2002 election for the School Board.

[64] The plaintiff Ms. Wheeler also testified that Ms. Halstead was relatively balanced and very constructive in the school their children attended in the early and mid-1990s. She testified that in around 1996 to 1997 she began to see changes in Ms. Halstead. Ms. Wheeler testified that Ms. Halstead became increasingly conflict-oriented and accusatory of others.

[65] Ms. Wheeler testified that relationships within the PAC began breaking down and that by the fall of 1998 Ms. Halstead appeared to be in conflict with virtually everyone in the school. As a consequence, Ms. Wheeler resigned from the PAC executive. Thereafter she had no contact with Ms. Halstead until she received Ms. Halstead's August 26, 2000 letter sent to various former members of the PAC executive. In the letter Ms. Halstead put the former PAC executive members on notice that she had obtained a legal opinion on the law of defamation.

[66] Further illustrations of Ms. Halstead's approach is found in the evidence relating to an incident referred to as the "ambush" and to an incident referred to as the "rampage". The evidence shows that six years prior to the commencement of this action, the Comox Valley School District decided to eliminate the "Summit Program". The program was designed to help students with severe behavioural problems and was headed by a teacher, the plaintiff Mr. Harvey. A June 2, 1998 meeting was held, attended by a number of parents concerned with the proposed cancellation of the program. Mr. Harvey and the plaintiff Mr. Newman, a teacher also involved in the program, attended the meeting, albeit briefly. The evidence shows that at the request of the principal, Mr. Newman and Mr. Harvey left the meeting shortly after it started. According to the evidence of witnesses who were at the meeting, in particular parents such as Ms. Grant and Ms. Jager, Mr. Harvey and Mr. Newman left the meeting without incident and the meeting continued uneventfully.

[67] The evidence of both Mr. Harvey and Mr. Newman was that they attended the meeting for a short time and, at the request of their principal who suggested there may be a conflict of interest for teachers to be at that particular meeting, said goodbye and quietly left the room.

[68] In evidence is a letter that Ms. Halstead and another member of the PAC wrote to the Superintendent of Schools regarding the June 2, 1998 meeting. In it Ms. Halstead alleged that the principal was "politically ambushed" by the teachers Mr. Harvey and Mr. Newman and that those same teachers "very rudely" showed "disrespect" to the principal, "very loudly slammed the door" on the way out and behaved "inappropriately". The letter alleged that the "intention" of these teachers "was to put the principal in the position of having no real way to defend himself" and that the teachers were using parents as "political pawns". The letter called for disciplinary action to be taken against Mr. Harvey and Mr. Newman.

[69] Ms. Grant testified that the description of the meeting set out by Ms. Halstead presented a completely false account of what took place.

[70] Approximately five years later, and in 2003, Ms. Halstead published statements on the Internet regarding this same June 2, 1998 meeting. She alleged that Mr. Newman was involved in a "violent" ambush of the school principal. The plaintiffs' Amended Statement of Claim makes references to the 2003 publication. They include the following excerpts:

... two teachers were involved in an ambush of their principal, on their off time, displaying violence and documented insubordination with efforts to have parents demonstrate against him in the parking lot for the removal of a Severe Behaviour Program from the school ...

... Yet Mr. Newman was my daughter's special education teacher. Mr. Newman was angry about a formal complaint I had co-signed with my PAC Co-Chair about earlier violence we were both eye witnesses to.

[71] Further, Ms. Halstead published a number of statements to the effect that Mr. Harvey is "violent" and in her Statement of Defence, cited the June 2, 1998 meeting as one of her particulars for justification.

[72] Ms. Halstead's testimony under oath at her examination for discovery simply does not support the allegations which she made and published regarding the June 2, 1998 meeting. In stark contrast to her published statements, her discovery evidence relevant to this point is as follows:

· She admitted that she did not watch what Mr. Newman was doing at the meeting and she agreed that nothing he said or did made any particular impression on her.

· She admitted she did not know why Mr. Newman was at the meeting but thought that "maybe he had been manipulated by somebody into the situation".

· When questioned about her published statement that the two teachers displayed violence, she confirmed that neither Mr. Newman nor Mr. Harvey hit or otherwise physically assaulted anyone at the meeting.

· She agreed that Mr. Newman did not push, swear at, or threaten anyone. Indeed she testified that he said nothing at the meeting.

· She testified that she witnessed no physical altercation at the meeting involving Mr. Harvey. The only "violence" she could point to involving Mr. Harvey at the meeting was alleged "intimidation".

· She conceded that she did not see Mr. Newman slam the door upon departure from the meeting and that he did not participate in the "refusing to leave" she described in her published statements.

[73] Further, and again in 2003, Ms. Halstead published statements initially made in a February 10, 2003 complaint filed with the B.C. Human Rights Commission in which she described the reactions of Mr. Harvey and Mr. Newman on June 4, 1998 when they became aware of the letter she wrote to the Superintendent after the June 2, 1998 meeting (the letter referred to in para. [68] of these Reasons).

[74] Ms. Halstead's 2003 description of the events of June 4, 1998, described the teachers, particularly the plaintiffs Mr. Newman, Mr. Harvey and Ms. Harvey as going on a "rampage" through Cumberland Junior School during which they "abandoned" their classes and that they "... continued their terrorism throughout the School for the rest of that morning". She wrote and published that Mr. Newman held the whole school "hostage" for the entire morning. Her published statements include the following:

... These are just two incidents of this teacher's behaviour that has affected my daughter. Finally I made a formal complaint. The man [Newman] became so enraged he terrorized the whole school for the entire morning ... After five teachers gathered in this LA class and cried and made threats they all abandoned the kids and continued on down the hallways, slamming doors, threatening the administrators and finally threw a secretary out of the room ...

...The two teachers, upon finding out they were reported, went nuts in the school, and yelled verbal threats to hear at both the parent witness and the principal ... special needs students were abandoned and shaking and frightened, in their classroom ...

In the case of Mr. Newman, for instance, on at least one occasion he stormed around the school swearing and threatening people, including myself ...

He's [Newman] "gone off" on entire special ed classrooms. He held the school hostage for this entire morning ...

[A] special ed class was abandoned after displaying his [Newman's] anger at me in a violent and uncontrolled manner with other teachers in front of the class. One of those teachers was openly crying. Other students remarked "whoa, this is scary". After abandoning the class, he screamed threats to bodily hurt me and the principal as he rampaged down the hall with these other teachers ...

He was the one who gave orders to administrators at the school not to call the police while Ted Newman, Dave and Charlotte Harvey and ... went on this tantrum throughout the school that scared my daughter and the other special ed children they abandoned. Charlotte Harvey was in the class crying in front of all the children ...

[75] At her examination for discovery, Ms. Halstead was asked questions regarding her 2003 published version of the events she alleged took place on June 4, 1998. Again, in stark contrast to her published version, Ms. Halstead testified that:

· She was not present in the school during these alleged events.

· Apart from the students in the learning assistance room, Ms. Halstead had no knowledge that any other students in the school knew anything was going on in the school during the alleged rampage/hostage situation, and no knowledge that any such students felt they were being held hostage in the school.

· Her use of the "hostage" language was an overstatement that she now regrets.

· As for what happened in the learning assistance room, Ms. Halstead confirmed the only person from whom she obtained information was her daughter who was in the learning assistance class for a maximum of 50 minutes and so could not have witnessed events for more than that length of time.

· When the teachers were in the learning assistance room, they were in a soundproofed glassed-in area, so that it was unlikely the students could hear anything and nothing was specifically said to the students.

· She did not know if Mr. Harvey was even present for this event.

· As for the alleged "abandonment", her daughter "believes" the teachers were out of the class for "at least half an hour". But Ms. Halstead admitted her daughter has difficulty estimating time, and says she "would not want to put on record that it was any particular length of time". She agreed she "wouldn't want to put a lot of stock" in her daughter's estimates of time.

· She was not certain whether a teaching assistant remained in the learning assistance class when the teachers allegedly left.

· As for the assertion that all the teachers abandoned their classes, she had "no idea" if the plaintiff Charlotte Harvey did this, and added "I don't know that [my daughter] made an allegation that people abandoned the class, that's my allegation ...".

· As for the assertion that Charlotte Harvey was "openly crying" in front of the class, Ms. Halstead’s information from her daughter was that Ms. Harvey "appeared to be crying" because Ms. Harvey was "all red-eyed".

· It was exaggeration to say that Mr. Newman "terrorized the whole school for the entire morning".

· She had no recollection of her daughter telling her any of the teachers were "swearing" in the school that day.

[76] Ms. Langdon, a teaching assistant who was in the learning assistance room on June 4, 1998 testified. When referred to the defendant's written description of the events of the "rampage", Ms. Langdon testified that she had no recollection of any such events taking place at that time or at any time in the 12 years she worked as a teaching assistant at Cumberland Junior School. I accept Ms. Langdon's evidence.

[77] Again, with respect to the "rampage" incident, Ms. Halstead published that one of the school's secretaries told her that Mr. Newman was on the phone in the school office making verbal threats to the principal. Ms. Halstead's version of events implied that the school secretary would have been aware or would have seen the behaviour of the teachers as described by Ms. Halstead. Further, she published that a school secretary told Ms. Halstead she was afraid of Mr. Newman and that no one had ever held Mr. Newman accountable.

[78] Ms. Rennison testified that she was a secretary at Cumberland Junior School for 14 years and the secretary working in that capacity on June 4, 1998. She was referred to the evidence of Ms. Halstead's written description of the "rampage". She testified she had no recollection of such an event; specifically she had no recollection of Mr. Newman "storming around the school", "swearing and threatening people", and "going nuts in the school". She denied having any conversation with Ms. Halstead about Mr. Newman's behaviour either on that day or generally. In particular she denied telling Ms. Halstead that Mr. Newman was on the phone, verbally threatening the principal of the school. She denied telling Ms. Halstead that she was "afraid" of Mr. Newman or that "no one had held Mr. Newman accountable". Further, Ms. Rennison testified that in all the years she worked at Cumberland Junior School with Mr. Newman, she was never afraid of him. I accept Ms. Rennison's evidence.

[79] The evidence of Mr. Newman, Mr. Harvey and Ms. Harvey is that Ms. Halstead's published version of the events of June 4, 1998 is entirely fictitious. Ms. Halstead's own testimony on discovery clearly confirms that is so.

THE PLAINTIFFS

[80] As stated above, seven of the plaintiffs were labelled as "Bully Educators" and "Least Wanted Educators" on the "B.C.’s Least Wanted" page of Ms. Halstead’s GAFER website. Those plaintiffs are each depicted in a chart entitled "Least Wanted Educators", which also identifies teachers who have been convicted of or charged with criminal offences or who have been disciplined by the College of Teachers. In addition, Gale Wheeler was named as a "Bully Parent" on the same website.

[81] In the Amended Statement of Claim, the plaintiffs plead that the "B.C.’s Least Wanted" page has a number of defamatory components: the label "Least Wanted Educator"; the label "Bully"; those whose photographs were not posted on the site are depicted as an apple with a worm in it; those whose names are on the site are generally depicted as bad or rotten apples; and those whose names appear in the "Least Wanted Educators" chart are associated with convicted criminals.

[82] Do these labels bear a defamatory meaning? The plain meaning of the labels "Least Wanted Educators" and "B.C.'s Least Wanted" is that the people identified in the chart are undesirable as educators. These labels suggest that an assessment has been made of the plaintiffs’ fitness as educators and that they are the least fit in the B.C. school system. It suggests the education system would be better off without these individuals. Further, these labels are a play on the more common "Most Wanted" label used by police forces to identify the alleged criminals they are most desirous of apprehending.

[83] A number of witnesses testified that the term "bully" has taken on new significance in education circles in recent years. Bullying behaviour is taken very seriously by the School Board and by administrators, and indeed Mr. White testified the Board now has anti-bullying policies in place. Allegations of bullying are thoroughly investigated. Clearly the label "bully" is a very negative term. Ms. Halstead herself, in her examination for discovery, testified that a "bully educator" was a very negative label.

[84] I find that the labels "Bully", "Least Wanted Educators" and "B.C.’s Least Wanted" serve to lower the plaintiffs (and others so labelled) in the eyes of the reasonable observer, and impair their personal and professional reputations. They are clearly defamatory.

[85] Under Canadian law, a statement that a person is a "bad apple" is seen to be a derogatory statement and has been considered defamatory: Gauvin v. Twin Deer (1999), 269 A.R. 201, A.J. No. 1604 (Q.B.).

[86] A defamatory imputation may arise through the juxtaposition of one picture alongside another, or by juxtaposition of pictures and words: Brown, The Law of Defamation in Canada, 2nd ed. (Scarborough, Ont.: Carswell, 1994) vol. 1 at 201. A defamatory imputation may be drawn by way of a cartoon: O’Neal v. Pulp, Paper & Woodworkers of Canada (1975), 4 W.W.R. 92, [1974] B.C.J. No. 522 (S.C.). Here, a defamatory imputation follows both from a teacher being represented by a "bad apple" cartoon, or by being grouped together with others who are represented as "bad apples" even though he or she may have his or her own photograph posted rather than an apple depiction. The depiction of the plaintiffs as "bad apples" is defamatory in that such a depiction would tend to lower the reputation of the plaintiffs in their community in the estimation of reasonable persons.

[87] The association of the plaintiffs with other educators who have committed serious offences is analogous to the association of a person with criminals as occurred in Monson v. Tussauds Limited, [1894] 1 Q.B. 671 (E.W.C.A.). That case illustrates that the law will recognize a defamatory imputation arising from a plaintiff being associated with serious wrongdoers, which in turn implies his or her own serious wrongdoing. The case law further recognizes that the association of a person with wrongdoers in a rogues' gallery format may bear a defamatory meaning: Wheeler v. Somerfield, [1996] 2 Q.B. 94 at 104.

[88] In the case at bar, the "Least Wanted Educators" chart was a classic rogues’ gallery. It was a public display of names and photographs designed to elicit feelings of contempt for those identified therein. The rogues’ gallery included names and photographs of notorious sex offenders and pedophiles. Many of the plaintiffs expressed shock and horror at seeing their names in the same chart as Robert Noyes, for example.

[89] The seven plaintiffs named in these charts have never been charged with a criminal offence. Of course it follows that they have never been convicted. Nor have they been decertified by the College of Teachers or otherwise disciplined.

[90] Although the plaintiffs were identified in a separate subcategory of the chart ("Bully Educators") and that subcategory was separated by a certain amount of space from the category “Criminal Convictions”, this takes little away from the sting of the association as the viewer of the site sees the criminals at the outset, and all subcategories fall under the global headings "B.C.'s Least Wanted" and "Least Wanted Educators".

[91] Mr. Piercy testified that viewers of the site who used a conventional modem connection, rather than a high-speed connection, would not see the intervening subtitles at all, and that all the pictures appeared under the heading "Criminal Convictions" for several minutes before other subheadings appeared.

[92] The plaintiffs testified to feelings of shock, horror, revulsion, and of feeling sick to the stomach upon viewing their names and depictions on the "Least Wanted Educators" chart.

[93] I have concluded that the chart, in its association of the plaintiffs with those convicted of criminal or otherwise undesirable conduct, is harmful to the plaintiffs' reputations, both professional and personal. I find that the "B.C.’s Least Wanted" page is designed to, and does, lower the plaintiffs in the eyes of the reasonable observer, and subjects them to scorn and dislike.

Edmund (Ted) Hunter Newman

[94] Mr. Newman's career in education spans 20 years. For the last 14 years he has taught at Cumberland Junior School. His expertise is in math, physical education and in the learning assistance field. His post-secondary education includes a Diploma in Business Administration, Industrial Education and a Bachelor of Education from the University of British Columbia. He testified that educating young people is his passion, his "calling".

[95] Mr. Newman's tireless work extends beyond the classroom. He testified that he has coached basketball and track; and he coached girls' basketball for nine years. His typical schedule from October to March was that four nights per week were consistently devoted to coaching or refereeing. He held an open basketball practice session on Sundays. From March to June, he ran a spring league for girls’ basketball.

[96] Inexplicably, Mr. Newman appears to have been Ms. Halstead's primary target. I say inexplicably because, on his evidence, which I accept, Mr. Newman had very little direct contact with Ms. Halstead and over the years his contact with the Halstead children when they attended Cumberland Junior School was limited to their attendance at his Learning Assistance class from time to time.

[97] The allegations of defamation pled in respect of Mr. Newman can be categorized as follows:

a) that Mr. Newman is a bad teacher;

b) that Mr. Newman is a violent teacher;

c) that Mr. Newman has engaged in professional misconduct;

d) that Mr. Newman has engaged in criminal conduct; and

e) that Mr. Newman is a person of low moral character.

[98] Ms. Halstead identified Mr. Newman by name and photograph on the "B.C.’s Least Wanted" page of her website as a "Least Wanted Educator" and a "Bully Educator", and further named him on the GAFER site under "RCMP investigations". On the latter site, Ms. Halstead referred to Mr. Newman as the subject of an RCMP investigation. What she did not publish is that she herself made the complaint that initiated the RCMP investigation, and that following the investigation, the RCMP concluded there was simply no need to take further steps; in other words, that her complaint was apparently groundless. Thereafter, she filed a report with the Police Commissioner concerning the RCMP officer who undertook the investigation.

[99] By letter of October 27, 2003, the RCMP advised Ms. Halstead that no further steps would be taken regarding her request for an investigation of Mr. Newman. Nevertheless, on December 29, 2003, Ms. Halstead still placed Mr. Newman's name on the "RCMP investigations" page of her website, and later reported him to the College of Teachers.

[100] In evidence are the many allegations Ms. Halstead has published regarding Mr. Newman's conduct and character. Ms. Halstead wrote and widely published statements that Mr. Newman is a violent teacher. These included extreme statements about Mr. Newman such as that he "dissolves into blind rages on a regular basis", exhibits "explosive violence", commits "psychological terror", and "puts children at risk". In addition, she alleged that Mr. Newman was violent in her published fictitious versions of the "ambush" and "rampage" incidents.

[101] Witnesses at this trial, ranging from teaching colleagues to parents, students, and past administrators, testified that they had no experience with Mr. Newman being violent. Quite the opposite, the witnesses unanimously and persuasively described Mr. Newman as fun, caring, and as an excellent teacher. He was described in the evidence as the sort of teacher who "goes the extra mile" to help his students succeed.

[102] Ms. Watson testified that she took grades 7 and 8 math from Mr. Newman between 2000 and 2002. She recalled Mr. Newman as a good, funny teacher; one she looked forward to seeing each day. She stated that "kids could relate to him". She testified that she was never fearful of him nor did she perceive that other students were. She also recalled being disciplined by him but not in a manner that made her fearful. She testified she does not recall Mr. Newman ever being violent or prone to throwing rages. Ms. Watson was a credible witness.