2007 BCSC 1757 Smith v. Cross

Before: The Honourable Mr. Justice Hinkson

Reasons for Judgment

Counsel for the Plaintiff	Douglas R. Lester
The Defendant	Appearing on his own behalf
Date and Place of Trial/Hearing:	October 12, 2007
	New Westminster, B.C.

THE NATURE OF THE CASE

[1] The plaintiff seeks damages and injunctive relief for what are alleged to be defamatory statements published about him by the defendant.

THE POSITION OF THE PARTIES

a. The Plaintiff

[2] Mr. Smith is a retired banker. For some 24 years beginning in 1981, he was a member of the Board of School Trustees for Abbotsford School District 34. For five of those years, including the period from November 2003 until November 2005, Mr. Smith was the Vice-Chair of the Board. For 12 years, including 1994 through 2001, he was the Chairman of the Board.

[3] In 2005, Mr. Smith decided not to seek re-election to the Board of School Trustees, and instead ran for and was elected to the City Council of Abbotsford.

[4] During a part of Mr. Smith’s tenure on the Board of School Trustees from March 1994 until approximately November 2001, the District employed S.L. as a teacher on call. On three occasions, S.L. was the subject of concern within School District 34. In February of 1995, S.L. was provided with a letter from the Abbotsford School District that was said to serve as written discipline for touching the legs of two female high school students. His conduct was stated to be “a serious breach of conduct”.

[5] In January of 1997, S.L. was provided with a letter from the Vice-Principal of a school in School District 34 for providing a sheet of jokes to a female bowling alley worker during a school field trip. He was instructed to apologize to the worker.

[6] In January of 2000, S.L. was provided with a letter from School District 34 criticizing a verbal interaction he had engaged in with an adult female student who had complained about the incident. S.L. was advised in writing that, “It is the recommendation of the Board that (S.L.) issue a written apology to the complainant and that he register in the next harassment workshop…Any further substantiated incident involving improper behaviour of any kind will result in immediate dismissal”.

[7] In 2002, S.L. was apparently the subject of a complaint in the Chilliwack School District for paedophilic activities. In the face of this complaint, the British Columbia College of Teachers contacted the Superintendent of School District 34, Dr. Arden, to inquire about S.L.’s history with the Abbotsford School District. Dr. Arden reviewed the District’s files and reported to the British Columbia College of Teachers by a letter of April 1, 2002 with respect to all three occasions of concern in the Abbotsford School District concerning S.L.

[8] Dr. Arden’s letter stated that S.L. was “eventually removed from the TOC (Teacher on Call) list … when it was determined that he had refused three consecutive TOC assignments”.

[9] There is no evidence of any earlier report from anyone in the Abbotsford School District to the British Columbia College of Teachers with respect to S.L.

[10] The plaintiff gave evidence that neither the concerns relating to S.L., nor Dr. Arden’s report regarding S.L. to the British Columbia College of Teachers, were ever brought to the attention of the Board of School Trustees in Abbotsford prior to 2005.

[11] In early 2005 the local media learned of S.L.’s alleged activities and an article was published in the Vancouver Sun newspaper discussing those activities.

[12] No admissible evidence was called to confirm any findings against S.L. However, the plaintiff did admit that Marie Ketchum, Registrar of the British Columbia College of Teachers, issued a statement dated November 2004 that:

“S.L. admitted to and was found guilty of professional misconduct and conduct unbecoming a member of the College. The respondent had sexual relations with a female person under the age of majority and continued to do so despite being warned by persons in authority. In addition, the respondent failed to declare on his Application for Teacher-on-Call that he had been censured by previous employers. On August 26, 2004, the Conduct Review Sub-Committee approved the Statement of Agreed Facts and Disposition. The Sub-Committee accepted that the appropriate penalty was that his certificate be cancelled.”

[13] Mr. Smith’s position was that he had no personal responsibility to investigate teachers employed in School District No. 34, nor any personal duty to report their discipline, particularly where he was unaware of it. He described himself in his capacity as Chairman of the Board of School Trustees as a first among equals with no more or less responsibility than the other members of the Board, none of whom he said could act on their own or be held accountable individually.

b. The Defendant

[14] Mr. Cross is a retired Investment dealer. He has taught at the Fraser Valley Institute, and been active in community affairs in Abbotsford. He gave evidence that he previously had his own cable television program and has written columns in his local newspapers. Mr. Cross said that he has been supportive of a number of political candidates at various levels of government. Sometime during the 1990s he ran unsuccessfully to become a member of the Board of School Trustees for the Abbotsford School District.

[15] Mr. Cross has two children. He had joint custody of them and their principal residence was with him as of May 9, 1990. Mr. Cross’ son and daughter are now past the age of majority, but in November of 2000, his daughter was in a class in Abbotsford where S.L. taught as a teacher on call.

[16] Mr. Cross’ daughter did not give evidence, but Mr. Cross said that she complained to him about comments made by S.L. to her and another female student in her class. Mr. Cross said that his daughter stood up to S.L. who then ceased his comments.

[17] Mr. Cross gave evidence that both he and his daughter complained about this experience with S.L. to the principal of her school, but that ultimately nothing was done about their complaints. Neither the Secretary Treasurer of the School District, Mr. Murray, nor the plaintiff was able to say what became of these complaints. Mr. Cross said that they were left unresolved.

[18] Mr. Cross gave evidence that he raised his concerns over his daughter’s experience with S.L. in conversation with the plaintiff. Mr. Smith denied any such complaint to him by the defendant, but did recall that the defendant complained to him about an issue relating to his daughter’s records in relation to matrimonial issues between Mr. Cross and his daughter’s mother.

[19] I accept Mr. Smith’s recollection of his discussion with Mr. Cross over the evidence of Mr. Cross. I do not accept that, prior to the publication of S.L.’s activities, Mr. Cross had a concern regarding paedophilia on the part of S.L. Mr. Cross would therefore have had no reason to engage in the discussion he alleges he had with the plaintiff when he says that the discussion took place.

[20] Sometime after the report concerning S.L. appeared in the Vancouver Sun newspaper, Mr. Cross began to publish criticism about the Abbotsford Board of School Trustees, and about Mr. Smith in particular.

[21] Mr. Cross’ chosen method of comment about Mr. Smith was via e-mail to both specific and random recipients.

THE ADMINISTRATIVE STRUCTURE

[22] During the relevant period of time that S.L. was under investigation, s. 16 of the School Act, R.S.B.C. 1996, c. 412 read as follows:

(1) If a board dismisses, suspends or otherwise disciplines a member of the college or a person holding a letter of permission to teach issued under section 25(3) of the Teaching Profession Act, it shall without delay report the dismissal, suspension or other disciplinary action to the council of the college, giving reasons, and shall send a copy of the report to the member or the person, as the case may be.

(2) If a member of the college or a person holding a letter of permission to teach issued under section 25(3) of the Teaching Profession Act resigns, the board shall without delay report the circumstances of the resignation to the council of the college where the board considers that it is in the public interest to do so and shall send a copy of the report to the member or the person, as the case may be.

(3) A board that has made a report to the college under this section in respect of a member of the college or a person holding a letter of permission to teach issued under section 25(3) of the Teaching Profession Act shall, without delay after being requested to do so by the college,

(a) provide the college with all of the records available to the board that touch on the matter in respect of which the report was made, and

(b) send a copy of the records referred to in paragraph (a) to the member or the person.

[23] The division of responsibilities between the Abbotsford Board of School Trustees and the School District’s administration was explained by Mr. Murray and by the plaintiff.

[24] Regardless of the individual to whom complaints are addressed, complaints are sent to one of two responsible District Assistant Superintendents, who then contact the parent or parents of the student in question.

[25] Parents are asked if the teacher in question has been contacted. If the teacher has been contacted, or the parent does not wish to do so, a suggestion is made to involve the principal of the school.

[26] If the matter cannot be resolved by the principal, it can ultimately go to the Board of School Trustees.

[27] Before a complaint can go to the Board of School Trustees, a hearing must either be precipitated by a parent pursuant to s. 11 of the School Act, or by an affected teacher pursuant to the District’s collective bargaining agreement with its teachers.

[28] Regardless of the route taken, it is considered important by the Board of School Trustees and the District Administrative staff that members of the Board of School Trustees do not involve themselves in any matter of teacher discipline so that the Board of School Trustees will be able to hear any matter that requires the Board’s attention at the appropriate time.

THE PUBLICATIONS AT ISSUE

[29] In his statement of claim, the plaintiff alleged that three defamatory publications were made by the defendant on November 15th, 21st, and 22nd, 2005.

a. The E-mail of November 15th, 2005

[30] The e-mail dated November 15th, 2005 reads as follows:

Subject: John Smith

Ask John Smith why they broke the law and protected a child molester. If he did this in the past, what would he do in the future?

Many parents who had to go to [L’s] house in Abbotsford to collect their children complained, but the school board covered it up.

[L] was disciplined at two different schools that I know of.

Because the age of the children at the time, you cannot use my name in public.

I feel the school board members are just as guilty as [L]. If they would have reported [L] it would have spared many young girls a lot of grief.

I feel that the school board has vicarious liability in this matter.

[31] The November 15th, 2005 e-mail was sent by the defendant to six e-mail recipients, namely:

allenkind@hotmail.com

Jeffrey@electjeffrey.com

donstahl2005@hotmaiI.com

Frankish@shaw.ca

homernoodleman@hotmail.com

mkey@sosborne-qroup.com

b. The E-mail of November 21st, 1005

[32] The e-mail dated November 21st, 2005 reads as follows:

Subject: [L]

I have always voted liberal and I thought I would run this past you before I contact the NDP. I even helped out [M] the first year he won by 8 voles I also helped the first year [J] was elected. As you can see by the attached newspaper articles the Abbotsford School Board denied disciplining [L]. As you can see by the attached document labeled [D], my daughter complained on Nov 9 2001. She has asked many times why it was covered up and I feel that she now has little respect for the system. After we sent the attachment labeled [D] to the newspapers the Abbotsford School Board admitted that they lied.

Why has not the Members of the Mission, Abbotsford and Chilliwack School Boards been charged under the BC School Act. At least they could have resigned. Now 2 have been re-elected and one is now a councilor.

I believe that this man is now in jail for having sex with minors, but he could have been stopped earlier if a Board member would have reported him as required by the law.

My daughter wants to know why [JF] and John Smith can lie for a pedophile and she is not supposed to lie.

I know now why young people do not respect the law. Every kid in the Fraser Valley knows about this. No wonder kids will not vote. To make sure this does not happen again, I ask that you charge all the members of all three boards under BC School Act to send a message to future board members that their duty is to keep children safe and to uphold the law.

If I have not heard anything by Dec 1, 2005, I will assume that you feel that the boards were right in protecting a Pedophile and I will see if the NDP will help.

[33] The November 21st, 2005 e-mail was sent by the defendant to three e-mail recipients, namely:

Mike.dejonq.mla@leg.bc.ca

rich.coleman.mla@leg.bc.ca

john.vandongen.mla@leg.bc.ca

c. The E-mail of November 22nd, 2005

[34] The e-mail dated November 22nd, 2005 reads as follows:

Subject: [L]

I just realized that now John Smith is a councilor and as such he in [sic] the boss of the Police department. How can a man who broke the law by not reporting [L], who lied in the press about a pedophile and later admitted that he lied, be in charge of a police force?

The people who I have talked to in the press over the late [sic] 4 years are amazed this [sic] no one seems to care about this. Especially when all of this took place in the Bible Belt!

The press seems to have tried very hard to get this out and no one cares.

[35] The November 22nd, 2005 e-mail was sent to nine known e-mail recipients, namely:

deJong.MLA, Mike

Coleman.MLA, Rich

van Dongen.MLA, John

Bond.MLA, Shirley

Les.MLA, John

Penner.MLA, Barry

Hawes.MLA, Randy

Simpson.MLA, Bob

Hagen.MLA, Stan

THE LEGAL PRINCIPLES TO BE CONSIDERED

[36] The defences advanced by Mr. Cross included justification, fair comment on a matter of public interest, and qualified privilege.

1. JUSTIFICATION

[37] Justification is the term used for the defence of truth: a defence that the defamatory expression at issue is “true in substance and in fact”: see Douglas v. Tucker, [1952] 1 S.C.R. 275 at 285, [1952] 1 D.L.R. 657.

[38] The defence of justification places the onus on Mr. Cross to prove truth on a balance of probabilities. The test is objective, and not what Mr. Cross considered subjectively to be true.

2. FAIR COMMENT

[39] A statement based on the writer’s honest opinion about a matter of public concern can be the basis for a defence of fair comment on a matter of public interest.

[40] This defence is available if the defamatory expression is:

1. made honestly and fairly;

2. without malice;

3. on true facts or facts stated on a privileged occasion; and

4. on a matter of public interest.

See Vander Zalm v. Times Publishers (1980), 18 B.C.L.R. 210 at 213, 109 D.L.R. (3d) 531 (C.A.) and Ross v. New Brunswick Teachers’ Association, 2001 NBCA 62, 238 N.B.R. (2d) 112 at para. 49.

[41] In general, educational affairs are considered to be matters of public interest, including the operation of a school system. In this case, the issue of S.L.’s presence in the school system in British Columbia was of sufficient interest to the public that it found its way into the discussions in the Legislature, as reported in the Hansard for Monday, February 28, 2006.

[42] Where fair comment is relied upon as a defence in defamation proceedings, the onus lies on the defendant relying on this defence to prove that the expression in question is recognizable by the ordinary reasonable person as comment which a person could honestly make on the basis of all the facts known to the defendant: see Chernesky v. Armandate Publishers Ltd., [1979] 1 S.C.R. 1067 at 1098-1100, 90 D.L.R. (3d) 321.

[43] The defence of fair comment is defeated if the expression is actuated by express malice. Express malice is established if the plaintiff proves that the defamatory statement is published by the defendant:

1. knowing it is false; or

2. with reckless indifference whether it is true or false; 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.

See Roger D. McConchie & David A. Potts, Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004) at 299.

3. QUALIFIED PRIVILEGE

[44] The principles relating to the defence of qualified privilege were reviewed by Williams J.A. in Moises v. Canadian Newspaper Co. (1996), 24 B.C.L.R. (3d) 211 at para. 17, 76 B.C.A.C. 263:

The defence of qualified privilege recognizes that there are certain limited occasions upon which a person may publish untrue, defamatory statements about another with impunity. In Gatley on Libel and Slander, 8th ed. by Philip Lewis (London: Sweet & Maxwell, 1981), the defence is explained as follows, at pp. 185-86:

There are occasions upon which, on grounds of public policy and convenience, a person may, without incurring legal liability, make statements about another which are defamatory and in fact untrue. On such occasions a man, stating what he believes to be the truth about another, is protected in so doing, provided he makes the statement honestly and without any indirect or improper motive. These occasions are called occasions of qualified privilege, for the protection which the law, on grounds of public policy, affords is not absolute but depends on the honesty of purpose with which the defamatory statement is made. The rule being founded on the general welfare of society, new occasions for its application will necessarily arise with continually changing conditions.

[45] The essence of the defence of qualified privilege is that the defendant has an interest – legal, social, or moral – to communicate the defamatory statement and the recipient has a corresponding duty or interest to receive it: see Pressler v. Lethbridge and Westcom TV Group Ltd., 2000 BCCA 639 at para. 62, 86 B.C.L.R. (3d) 257.

[46] Qualified privilege attaches to the occasion that the communication was made, and not to the communication itself. The reciprocity or mutuality between the defendant and the recipient is essential to the defence. See Campbell v. Jones et al., 2002 NSCA 128, 209 N.S.R. (2d) 81 at para. 31 [Campbell cited to N.S.R].

[47] The burden rests on the defendant to prove each element of the defence. In Campbell at para. 32, Roscoe J.A. quoted with approval from the Ontario Court of Appeal in RTC Engineering Consultants Ltd. v. Ontario (Solicitor General) (2002), 58 O.R. (3d) 726, 156 O.A.C. 96 with regard to the reciprocal interest element of the defence of qualified privilege:

More recently, in RTC Engineering Consultants Ltd. v. Ontario et al., [2002] O.J. No. 1001; 156 O.A.C. 96 (C.A.), Laskin, J.A. said:

“[16] At the heart of the defence of qualified privilege is the notion of reciprocity or mutuality. A defendant must have some interest in making the statement and those to whom the statement is made must have some interest in receiving it. ‘Interest’, however, should not be viewed technically or narrowly. The interest sought to be served may be personal, social, business, financial, or legal.The context is important. The nature of the statement, the circumstances under which it was made, and by whom and to whom it was made are all relevant in determining whether the defence of qualified privilege applies. [Emphasis added by Roscoe J.A.]

...

[48] It has been held that parents have a recognized interest in communicating their honest concerns about the alleged mistreatment of students by teachers to the proper authorities. In Gibbs v. Jalbert (1996), 18 B.C.L.R. (3d) 351 at para. 21, 70 B.C.A.C. 302 (C.A), Prowse J.A. for a unanimous B.C. Court of Appeal stated:

It is not disputed that members of a community have an interest in the integrity of the education system and the fitness to teach of those working within that system. More specifically, they have an interest in protecting their young people from mistreatment at the hands of their teachers. It is in accordance with that interest that parents and other community members are permitted to raise with the proper authorities their honestly held concerns about alleged mistreatment of students by teachers. Communications made within that context are properly regarded as communications made on an occasion of qualified privilege which are entitled to the protection of the privilege, unless defeated by express malice.

[49] The protection of the defence of qualified privilege can be lost in two ways, as explained by Cory J. in Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 at paras. 79-80, 126 D.L.R. (4th) 609:

Where an occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute. It may be defeated in two ways. The first arises if the dominant motive for publishing is actual or express malice. Malice is commonly understood as ill will toward someone, but it also relates to any indirect motive which conflicts with the sense of duty created by the occasion. Malice may be established by showing that the defendant either knew that he was not telling the truth, or was reckless in that regard.

Second, qualified privilege may be defeated if the limits of the duty or interest have been exceeded. In other words, if the information communicated was not reasonably appropriate to the legitimate purposes of the occasion, the qualified privilege will be defeated. This was discussed at some length in Hill, supra, and there is no need to repeat it in these reasons.

[50] The onus of proving malice to defeat the defence of qualified privilege rests on the plaintiff: see Neptusky v. Craig, [1973] S.C.R. 55 at 60-63, 28 D.L.R. (3d) 742.

DISCUSSION

[51] In his statement of defence, Mr. Cross did not deny publishing any of the e-mails mentioned in Mr. Smith’s statement of claim. At trial, however, Mr. Cross would not concede that any of the e-mails introduced into evidence by the plaintiff were sent by him in the form found in the exhibits, objecting to each based upon the decision of Rip T.C.J in the case of Markakis v. Minister of National Revenue (1986), 86 O.T.C. 1237, [1986] 1 C.T.C. 2318. In that case, the taxpayer’s original returns had been destroyed. The learned trial judge held that the Minister could not rely on computer records where the Ministry operator who transmitted the information from the taxpayer’s return to the Ministry’s computer was not called to testify that his or her transmission of the taxpayer’s information was accurate.

[52] In this case I heard evidence from Mr. Smith that the three e-mails in question were reproduced in the exhibits filed in this case in the form that they were received by him.

[53] Despite refusing to admit that he sent the e-mails in the form seen in the exhibits, Mr. Cross claimed that the e-mails that he did send were sent with the expectation that they would be treated as priviledged and indeed so marked the ones he sent. I ruled that the Wigmore criteria approved of in the decision of the Supreme Court of Canada in M. (A.) v. Ryan, [1997] 1 S.C.R. 157, 143 D.L.R. (4th) 1 were not met in the circumstances of this case, and ruled against this objection to the admissibility of the e-mails.

[54] Mr. Cross argued that anyone could author an e-mail and make it look as though if came from him, when in fact it did not.

[55] I consider that Mr. Cross was most disingenuous with respect to the e-mails. He did not deny sending them in the form in which they were received by Mr. Smith; he simply wouldn’t admit that they were sent in that form. Indeed he conceded in at least some instances that e-mails of the type represented by the three in question were sent by him. I consider that his position with respect to these e-mails was obstructionist, and I am satisifed that those portions of the e-mails produced as exhibits by the plaintiff purporting to be from the defendant were in fact sent to the plaintiff and the others listed on them by Mr. Cross.

ARE THE CONTENTS OF THE E-MAILS TRUE?

a. The E-mail of November 15th, 2005

[56] The e-mail of November 15th, 2005 begins with a question which in my view is provocative, but refers to “they” as opposed to Mr. Smith. As s. 16 of the School Act required that the discipline of S.L. be reported to the British Columbia College of Teachers, the failure of the Board’s delegate, Dr. Arden, to do so could reasonably be said to have “broken” the law.

[57] Mr. Smith was at pains during his evidence to distinguish between what he described as the Corporate School Board, and the Board of School Trustees. Accepting the distinction that he drew, this portion of the e-mail does not refer to Mr. Smith or the members of the Board of School Trustees.

[58] In his submissions, Mr. Cross argued that in addition to the obligations pursuant the School Act, a legal duty to report the activities of S.L. existed pursuant to s. 14(1) of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46.

[59] In the absence of knowledge that a child is in need of protection, that statute creates no duty to report. I am satisfied that Mr. Smith had no knowledge of any child in need of protection from S.L. at any time alleged by Mr. Cross.

[60] The second sentence in the e-mail is partly factual, but is personalized against Mr. Smith. As the Board had taken no disciplinary action against S.L., they did not have anything to report to the British Columbia College of Teachers. It was therefore untrue to allege that Mr. Smith had failed to report as stated in that sentence.

[61] The third and fourth sentences in this e-mail may well be true, but do not constitute any assertion against Mr. Smith.

[62] The fifth, sixth and final sentences constitute an expression of Mr. Cross’ point of view. There is nothing untrue about these sentences if in fact they represent Mr. Cross’ views at the time.

b. The E-mail of November 21st, 2005

[63] The first paragraph in this e-mail asserts facts that may well be true, but also asserts that the Abbotsford School Board (as opposed to the Board of School Trustees) denied disciplining S.L. This is a correct statement of the position apparently taken by the then Chair of the Board of School Trustees.

[64] Just what transpired with regard to the complaints respecting Mr. Cross’ daughter is unclear. The plaintiff offered no explanation that suggested any satisfactory resolution of this complaint by the School District.

[65] The assertion that the School Board lied is an untrue characterization of the admission that the initial statement given to the press was incorrect, but again it is directed to the School Board and not to the members of the Board of School Trustees.

[66] The second paragraph in this e-mail is a rheorical question posed by Mr. Cross, and not an assertion of any fact other than the electoral status of three candidates.

[67] The third paragraph in this e-mail begins with a statement of opinion by Mr. Cross, which may be true, but which is not expressed as anything other than his opinion. The latter half of the sentence which comprises this paragraph is untrue as s. 16 of the School Act did not require individual Board members to report teacher discipline; only the Board as a whole to do so.

[68] The fourth paragraph does accuse the plaintiff by reference of lying for S.L., and I find that assertion to be untrue.

[69] The fifth paragraph in this e-mail is again an expression of opinion by Mr. Cross. It is not an assertion of any fact except for the reference to a duty of Board members, which the plaintiff accepted as a correct general statement.

[70] The final paragraph in this e-mail implies that members of the Board of School Trustees “protected a Pedophile” and this I find to be untrue.

c. The E-mail of November 22nd, 2005

[71] This e-mail begins with an assertion of the plaintiff’s role with respect to the Abbotsford Police Department.

[72] The second sentence asserts that the plaintiff “broke the law by not reporting it (the conduct of S.L.)”, which I find to be untrue. I accept that, strictly speaking, the plaintiff is correct that it is the Board of School Trustees as a whole and not him individually, as the first among equals on the Board, that is obliged by the School Act to report the discipline of teachers within the District to the British Columbia College of Teachers.

[73] The assertion in the second paragraph that the plaintiff lied is, as I have found above, simply untrue.

[74] The last two paragraphs in this e-mail are for the most part probably true, but not directed at the plaintiff in any event.

DO THE E-MAILS CONSTITUTE FAIR COMMENT ON A MATTER OF PUBLIC INTEREST?

[75] I accept that the issue of the safety of students in the school system in any school district in British Columbia is a matter of public interest. In his submissions, Mr. Lester agreed.

[76] For the same reasons expressed with respect to the defence of justification, I find the same portions of the e-mails in question to be untrue.

[77] In addition, I conclude that the untrue portions of these e-mails were not published honestly and fairly.

[78] I also conclude that the untrue portions were published with a reckless indifference as to whether or not they were true, thus establishing express malice.

[79] When Mr. Cross learned of the serious conduct attributed to S.L. in the press, he decided to raise public awareness of what he considered a failure on the part of the Board of School Trustees of the Abbotsford District to ensure that paedophiles were not allowed to teach in the District and that they were reported to the British Columbia College of Teachers so that they could not teach anywhere else.

[80] Mr. Cross said in evidence that most of what he said in his e-mails was based on newspaper articles. He later conceded that he did not consider that newspaper articles were always accurate.

[81] Mr. Cross said in his evidence that he didn’t know what the School Board knew about S.L., but that if he went to the general public, someone would get mad enough and would help him in his efforts to get S.L. out of the community and make Abbotsford “a safe place for kids”.

[82] In the result, I find that the defendant has failed to make out a defence of fair comment on a matter of public interest.

QUALIFIED PRIVILEGE

[83] This privilege exists to protect those who publish statements about others which are untrue, but who do so in the circumstances described in the authorities to which I have previously referred. It is a privilege which exists only if there is a reciprocating interest or duty on the maker to make and the recipient to receive the statement, and only in the absence of malice on the part of the individual who publishes the untrue statements.

[84] In Campbell, a reciprocal interest was said to be an interest that should not be viewed technically or narrowly. It is unneccesary to determine whether or not that interest could be so broadly viewed in this case as to embrace all of those to whom Mr. Cross sent his e-mails. Even if the interest were viewed that broadly, this defence fails on another ground.

[85] It is the occasion, and not the statement which generates qualified privilege. If the other requirements of this privilege were met, I consider that the three occasions of publication by Mr. Cross that are at issue in this case were occasions when such a privilege could arise.

[86] What absolutely defeats the defence of qualified privilege in this case is the malice which I find Mr. Cross demonstrated by his reckless disregard for the truth demonstrated in his publications.

[87] I find that while Mr. Cross may have had legitimate concerns about S.L., by the time he began his e-mail attack upon Mr. Smith he had lost any sense of proportion about those concerns. He then decided to attack a man whom he had no legitimate basis for accusing of personal responsibility for the presence of S.L. in the Abbotsford school system.

[88] Mr. Cross’ loss of proportion resulted in a malicious attack on Mr. Smith that the law cannot countenance.

DAMAGES AND OTHER REMEDIES

[89] The plaintiff seeks monetary damages, injunctive relief, and costs against the defendant.

[90] In addition to the three e-mails which are the subject of these proceedings, the defendant has continued to circulate e-mails about the plaintiff to a variety of individuals, even after these proceedings were initiated.

[91] Damages for defamation are presumed and awarded at large, but must be based upon a firm factual basis and in a sensible manner: see Raymond E. Brown, The Law of Defamation in Canada, vol. 3, 2nd ed. (Toronto: Carswell, 1999) at 25-7 to 25-9.

[92] The law is clear that an award of general damages in a defamation case is to compensate a plaintiff for the injury suffered as a result of the defamatory publication and also to provide for vindication of reputation: see Newman et al. v. Halstead et al., 2006 BCSC 65, 146 A.C.W.S. (3d) 153 [Newman cited to BCSC], at para. 242.

[93] Any award of general damages to the plaintiff can only be for the three e-mails specifically identified in the statement of claim, and not for subsequent publications by the defendant which were not identified in the statement of claim.

[94] In his submissions, counsel for the plaintiff relied upon the decision of Dorgan J. in Newman as representative of an appropriate award of general damages. In that case a number of individuals involved in the Comox School District brought proceedings against the defendant for defamation.

[95] In Newman at para. 243, Dorgan J. identified the factors to be considered in an award of general damages for defamation:

The following factors should be considered in an assessment of general damages for defamation: the plaintiff's conduct, position and standing; the nature of the defamation; the mode and extent of publication; the absence of any retraction or apology; and the whole of the defendant's conduct from the time of publication to the end of trial: Hill, supra, at para. 182. In assessing the amount of damages, the court must have regard to the applicable authorities (and many were provided), recognizing always that each plaintiff is unique: Botiuk, supra.

[96] In Newman, the defendant published serious allegations of improper conduct by various individuals on Internet websites, chat rooms, and via e-mail. One of the plaintiffs, a Mr. Morrow, was a school trustee in the district. He received an award of $100,000.00 for general damages.

[97] Regrettably, the basis for the award is not explained in the reasons, and the fact that the defendant did not appear at trial may have deprived the learned trial judge of full submissions on quantum.

[98] In Creative Salmon Company Ltd. v. Don Staniford, 2007 BCSC 62, 154 A.C.W.S. (3d) 597, Gerow J. awarded general damages of $10,000.00 where defamatory statements were made in two press releases which were found to be motivated by a desire to build up oppostition to salmon farming in general and to the plaintiff’s operation specifically.

[99] In this case, the plaintiff and his wife both gave evidence of the hurt and anger experienced by the plaintiff in the wake of the e-mails that I have found were sent by the defendant. Mrs. Smith said that a number of people contacted her about the e-mails and asked, “What the heck?” I understood this to be disbelief at the contents.

[100] While Mr. Smith said that he was devastated by the e-mails, his conduct at the time suggests otherwise. He was diagnosed with cancer in September of 2005, but fortunately underwent successful surgery in the fall of 2005. Rather than withdrawing from civic politics in the wake of the e-mails, he decided to leave the Abbotsford Board of School Trustees and ran successfully “from his hospital bed” for a position as a city councillor in Abbotsford in November of 2005.

[101] While I do not doubt that Mr. Smith was justifiably annoyed by the attacks upon him by the defendant, I have concluded that neither Mr. Smith nor the voting public in Abbotsford put much, if any, credence in the contents of the e-mails pertaining to Mr. Smith.

[102] The only other evidence I have as to the impact of the e-mails upon the plaintiff’s reputation was from several individuals whom the plaintiff knew. Ms. Keys, a prominent businesswoman in Abbotsford, received one of the e-mails and seems to have ignored it entirely. Mr. Hansen-Carlson, a contender for civic office in Abbotsford in 2005, also discounted the e-mail he received entirely. Mr. Bruce Beck, a fellow city councillor of the plaintiff, described the plaintiff as respected in every segment of his community and a pillar of the community. Mr. Murray spoke in glowing terms of the plaintiff’s reputation.

[103] Against these factors is not just the absence of a retraction or apology by Mr. Cross, but also persistence in his unsolicited commentaries about Mr. Smith.

[104] I consider the amount of $100.000.00 in general damages proposed by the plaintiff wholly beyond the reasonable range of damages in this case to accomplish the ends described by Dorgan J.

[105] I have concluded that an appropriate award of general damages in this case is $25,000.00.

[106] Mr. Lester for the plaintiff proposed $5,000.00 for aggravated damages. This type of damages was discussed by Cory J. in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 188, 126 D.L.R. (4th) 129, and may be awarded in circumstances where the defendant’s conduct has been particularly high-handed or oppressive, thereby increasing the plaintiff’s humiliation and anxiety arising from the defamatory statement.

[107] In Newman, Dorgan J. said at para. 244:

An award of compensatory damages may also include an amount awarded for aggravating circumstances where the defendant's conduct increased the plaintiff's "humiliation or anxiety arising from the libellous statement": Hill, supra, at para. 188. If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice: Hill, supra, at para. 190. I find that in respect of all of the plaintiffs, except Mr. Chisholm, an aggravated damages component is appropriate and that finding is reflected in the fixed damage award for each of those plaintiffs.

[108] I have concluded that, while Mr. Cross’ conduct was in part high-handed, it should more appropriately be described well intentioned, but misguided. While I have previously concluded that his conduct through reckless disregard for the truth was malicious, I do not find that it resulted in the undue humiliation and anxiety to Mr. Smith necessary to attract aggravated damages.

[109] Mr. Lester also proposed a further sum of $5,000.00 for punitive damages. The basis for such an award was also discussed by Dorgan J. in Newman at para. 245:

In contrast to compensatory damages, punitive damages are designed to punish a defendant for her or his conduct and to serve as a deterrent to a defendant and to others. Punitive damages may be awarded where there is malicious, oppressive and high-handed conduct offending the court's sense of decency, and where the award of general and aggravated damages will be insufficient to achieve the goal of punishment and deterrence: Hill, supra, at para. 196.

[110] While I have concluded that Mr. Cross’ conduct in publishing his e-mails was well intentioned but misguided, his refusal to retract his comments and to apologize for them, and his insistance through trial as to the truth of his comments, is such that an award of punitive damages is warranted. I do not consider the amount proposed by Mr. Lester for punitive damages to be sufficient.

[111] I award an additonal amount of $10,000.00 to Mr. Smith as punitive damages.

[112] Mr. Lester also sought the following injunctive relief to prevent Mr. Cross from publishing:

Any publication of any kind whether by way of the Internet or otherwise which states, alleges, or expresses the opinion that the statements or allegations made by him and which are referred to in paragraphs 11, 13, and 15 of the statement of claim are true in whole or in part.

That he shall not publish or cause to be published or otherwise disseminate or distribute in any manner whatsoever whether by way of the Internet or otherwise any statements or other communication which refer to the plaintiff by name or description.

The defendant may apply on 7 days notice for leave to publish or cause to be published any statements that would otherwise be prohibited by the aforementioned paragraphs.

The plaintiff has liberty to apply for further directions with respect to injunctive relief.

[113] I adopt the view of Rothman J.A. stated in Champagne c. Collège d’enseignement général at professional de Jonquière, [1997] R.J.Q. 2395 at 2403, 73 A.C.W.S. (3d) 702 (Que. C.A.) that, “Applications for orders involving prior restraint of future comments or publications, the content of which are unknown, must obviously be viewed with the greatest of caution”.

[114] Mr. Smith has chosen to pursue political office. While this should not make him a target for unfair comment, his choice of public life does and should mean that he will be exposed to public scrutiny and public criticism, if appropriate.

[115] I have concluded that the injunction sought by Mr. Smith should be refused. As a public figure, Mr. Smith has chosen to represent others. Having chosen to do so, he must accept that those others, including Mr. Cross, may not always agree with him. It is an important feature of democracy that individuals are left as free as possible to challenge the views and decisions of those who offer themselves for public office, and the injunction sought in this case would, in my view, restrain Mr. Cross from even legitimate criticism of Mr. Smith should such criticism be warranted.

[116] In the event of further unfair or unwarranted criticism of Mr. Smith by Mr. Cross in a malicious manner, Mr. Smith may have to resort to the court for a remedy. As a result, Mr. Smith is not without a remedy should Mr. Cross be so unwise as to defame him again in the future.

CONCLUSION

[117] Mr. Cross must pay Mr. Smith general damages in the amount of $25,000 and punitive damages of $10,000.

[118] In addition to the damages set out above, Mr. Smith will also receive his costs on Scale B from Mr. Cross.

“Hinkson J.”

Citation:	*Smith v. Cross,*
	2007 BCSC 1757