2008 BCSC 827 Griffin v. Sullivan

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*Griffin v. Sullivan,*
	2008 BCSC 827

Date: 20080715

Docket: S42823

Registry: Nanaimo

Between:

Robert Griffin

Plaintiff

And

Patrick Michael Sullivan

Defendant

Before: The Honourable Mr. Justice Halfyard

Reasons for Judgment

Counsel for the plaintiff:	D.W. Burnettt
Defendant appeared in person
Date and Place of Trial:	April 14, 15, 16, 17, 18, 21 and 22, 2008
	Nanaimo, B.C.

The Action

[1] This is an action for damages for libel which was commenced on November 25, 2004. The plaintiff, Robert Griffin, alleges that the defendant, Patrick Michael Sullivan, published defamatory words about the plaintiff, on numerous web sites on the internet, throughout the period from May 30, 2003 up to the time of trial (April 14, 2008). It is alleged that the defendant published these defamatory words on the internet from Nanaimo, British Columbia, the city in which he resided. At all material times, the plaintiff resided in Australia.

[2] The plaintiff also advances a cause of action for breach of privacy pursuant to the Privacy Act of British Columbia. It is alleged that the defendant improperly obtained the plaintiff’s name, personal information and photographs, and published them on the internet, without the plaintiff’s knowledge or consent.

[3] Both liability and damages are in issue. If the plaintiff is successful on liability, he claims substantial general damages, aggravated damages and punitive damages and in addition he claims injunctive relief.

[4] At the outset of the trial, I allowed an application by the plaintiff to further amend the statement of claim. The new amendments allege that the defendant continued to publish defamatory words about the plaintiff on the internet, after service upon him of the first amended statement of claim (which was filed on December 14, 2005). The plaintiff was also permitted to expand the description of the injunctive relief sought against the defendant.

The Defence

[5] In his amended statement of defence, Mr. Sullivan (who represented himself throughout the litigation) denies that he published some of the numerous alleged libels, and denies that he received a warning “letter” from the plaintiff to cease and desist from publishing messages about the plaintiff on the internet. But the defendant admits publishing many of the alleged libels, and advances the main defence that these statements about the plaintiff were true.

[6] When I allowed the further amendments to the statement of claim at the outset of the trial, it was agreed that Mr. Sullivan’s amended statement of defence would be deemed to be amended so as to allege the defences of denial and justification in answer to the new allegations. At that time, Mr. Sullivan also stated that he would like to raise the defence of “fair comment” to any and all of the allegations made in the second amended statement of claim, to the extent that such a defence might apply. For the plaintiff, Mr. Burnettt had no objection to Mr. Sullivan raising the defence of fair comment, but of course took the position that this defence could not apply to the facts of the case.

[7] On the issue of damages, Mr. Sullivan pleaded a denial and made further allegations which included the following (my summarizing, in some instances):

a) “. . . the plaintiff has destroyed his own reputation by his own words and his own actions and his own publications on the Internet and Usenet newsgroups.” (paragraph 19)

b) “The plaintiff has indeed relentlessly stalked, harassed and threatened many posters over the years, with outright death threats, threats of violence, threats of criminal prosecution and threats of civil legal matters.” (paragraph 18)

c) “. . . any wrongs that the plaintiff alleges were written about him could not possibly be worse than the plaintiff’s own hate filled and violent Usenet publications.” (paragraph 19)

d) The statements made by the plaintiff on the internet which were defamatory of the Douglas Wiser, Grace Abbott, Barbara Schwarz and the defendant, were false, defamatory, harassing and threatening to such an extreme extent that “. . . anything else that was stated by other people about Robert Griffin was justified.” (paragraph 19)

e) Because of his own conduct, “the plaintiff is in no way deserving of any financial reward”, and “. . . is in no way deserving of any . . . injunctions . . . .” (paragraph 39)

[8] At many points in his amended statement of defence, Mr. Sullivan complains that the plaintiff’s harassment, defamation and threats to the defendant have caused harm to the defendant. Mr. Sullivan has also alleged that the plaintiff acted with malice in this regard. But Mr. Sullivan has not made any counterclaim.

The Main Facts Alleged by the Plaintiff

[9] The plaintiff alleges that, from May 30, 2003, through to the time of the trial of this action in April 2008, the defendant published statements about the plaintiff on the internet, which statements were defamatory of the plaintiff. The alleged defamatory statements are summarized in paragraphs 3, 5 and 6A of the second amended statement of claim (“the statement of claim”). In paragraph 7, the alleged defamatory meanings of the published statements are described as follows:

In their natural and ordinary meaning, the Words and FAQ and Continued Words meant and were understood to bear the false and defamatory meanings that the plaintiff is a stalker, abuser, harasser, criminal, evil, liar, killer, sexual predator, pervert, pedophile, coward, manipulator and hate monger who threatens others with death and violence, betrays confidences and is untrustworthy, is dangerous, abuses, impregnates and abandons women and publishes their personal information, encourages and actively assists and incites vulnerable people into committing suicide, and deserves to be jailed and killed.

[10] The “Words” are alleged (in paragraph 3 of the statement of claim) to be the statements published by the defendant on an internet use net group known as “alt.suicide.holiday” between May 30, 2003 and March 11, 2005. In his pleadings, the defendant denies that he published any of these statements.

[11] The “FAQ” is a lengthy document entitled “the Magnus Pym FAQ” which the plaintiff alleges was published on the internet by the defendant between November 1, 2004 and the date of trial. The parts of the FAQ which are alleged to be defamatory are described in paragraph 5 of the statement of claim. Mr. Sullivan admits that he wrote and published (on the internet) “the Magnus Pym FAQ.”

[12] The “Continued Words” are alleged (in paragraph 6A of the statement of claim) to be statements published by the defendant on the internet after being served with the first amended statement of claim (which was filed on December 14, 2005) and continuing up to the time of the trial of this action. As a precaution, I took the defendant’s initial position to be a denial that he published any of the statements set out in paragraph 6A.

[13] In paragraph 10 of the statement of claim, the plaintiff alleges that “the defendant threatened violence to the plaintiff” by making, and publishing on the internet, the 13 statements therein described between May 30, 2003 and June 15, 2004. The plaintiff alleges that the defendant “Intended to cause injury to the plaintiff” by making these threats. In his statement of defence, the defendant denies that he published any of these statements.

Elements of liability

[14] In order to establish liability for defamation, the plaintiff must prove each of the following essential elements, on the balance of probabilities:

(a) The defendant published a statement of and concerning the plaintiff.

(b) The statement published by the defendant is defamatory of the plaintiff.

[15] In Botiuk v. Toronto Free Press Publications Ltd. [1995] 3 S.C.R. 3, the Supreme Court of Canada gave the following definition of a defamatory statement (at paragraph 61):

…a publication which tends to lower a person in the estimation of right-thinking members of society or to expose a person to hatred, contempt or ridicule, is defamatory.

[16] In order to prove that the defendant published a statement, it must be shown that the defendant knowingly communicated the statement to at least one other person.

[17] A statement may be defamatory in its natural and ordinary meaning, or by innuendo. In the present case, the plaintiff alleges that the statements published by the defendant about the plaintiff are defamatory in their natural and ordinary meaning, which is:

…the meaning that a reasonable person, with an ordinary person’s general knowledge, would give to the statement within the statement’s context.

See Wego Kayaking Ltd. v. Sewid 2007 BCSC 49 at paragraph 67.

[18] The question of whether a statement is capable of bearing a defamatory meaning is a question of law. If it is, then the issue of whether the statement does convey a defamatory meaning is a question of fact.

[19] If the plaintiff proves that the defendant published or caused to be published a statement about him or her, and that the statement is defamatory, then the law presumes that the statement is false. There is no onus on the plaintiff to prove that a defamatory statement is false.

[20] The rules of law which I have outlined are well established and were reaffirmed in Hill v. Church of Scientology of Toronto [1995] 2 S.C.R. 1130 and Botiuk v. Toronto Free Press Publications Ltd., supra.

The issues on liability

[21] In his amended statement of defence, Mr. Sullivan denies publishing any of the alleged defamatory statements set out in the 15 sub-paragraphs of paragraph 3 of the statement of claim. With respect to the 31 statement summaries alleged in the newly added paragraph 6A of the statement of claim, Mr. Sullivan’s initial (deemed) position was a denial that he published any of those statements. In his statement of defence, the defendant denied publishing any of the statements alleged in paragraph 10 of the statement of claim. It was not alleged that these statements were defamatory, but rather that they constituted threats to the plaintiff. That being so, if publication is proved, they need only be considered on the issue of malice.

[22] Mr. Sullivan admits in his pleadings that he wrote and published (on the internet) the statements alleged in paragraph 5 of the statement of claim. He further admits that those statements which he did publish were intended to, and did, refer to the plaintiff. Mr. Sullivan did not specifically deny that the statements he admittedly published were defamatory of the plaintiff. It was not suggested that any of the statements alleged in paragraphs 3, 6A or 10 did not refer to the plaintiff. As mentioned, his main defence was that the statements he published were true. In the alternative, the defendant wished to raise the defence of fair comment on a matter of public interest.

[23] Accordingly, the issues on liability are:

(a) Did the defendant publish on the internet any of the statements set out in paragraphs 3 and 6A of the statement of claim?

(b) If the defendant published some or all of the statements alleged in paragraphs 3 and 6A of the second amended statement of claim, then:

i. did some or all of the published statements refer to the plaintiff?

ii. were any of the said statements (or any of the statements in paragraph 5) defamatory of the plaintiff?

(c) If some or all of the described statements were defamatory of the plaintiff, then has the defendant established the defence of justification in respect of any or all of them?

(d) If the defendant has failed to establish the defence of justification in respect of some or all of the said statements, then has the defendant established the defence of fair comment?

(e) If the defendant has established the defence of fair comment to some or all of the said statements, then has the plaintiff proved malice on the part of the defendant, so as to defeat the defence?

The first issue: Did the defendant publish any of the statements set out in paragraphs 3 and 6A of the statement of claim?

[24] As mentioned, Mr. Sullivan admitted publishing all of the statements set out in paragraph 5 of the statement of claim, both in his statement of defence and on his examination for discovery on July 14, 2007. With respect to the statements alleged in the 15 subparagraphs of paragraph 3, Mr. Sullivan admitted on discovery that he published the statements in subparagraphs 3(a), (i), (k) and (n). In his cross examination at the trial, Mr. Sullivan admitted publishing the statements alleged in 3(l), (m) and (n).

[25] As to the statements alleged in the remaining 8 subparagraphs of paragraph 3, the defendant in cross examination neither admitted nor denied publishing these statements. His position is that he did not know whether or not he had published them. The statements set out in 6 of these subparagraphs ((d) through (h) and (o)) were all contained in an internet posting dated November 3, 2003, which is reproduced at Tab 7 of Exhibit 1. A number of the subjects and themes that appear in this posting are contained in many of the postings admittedly made by the defendant at later dates. These subjects and themes include the following:

(a) that the plaintiff is an abuser of many women;

(b) that the plaintiff betrayed his former girlfriend Grace, by publishing her personal information on the internet;

(d) that the plaintiff is “a liar” and “a kook;”

(e) that the plaintiff is a “coward;” and

(f) that the plaintiff is deserving of going to hell.

[26] The accusations that the plaintiff is a coward, and the expressed desire to send him to hell, are also contained in an earlier internet posting which was admittedly published by the defendant on May 29, 2003 (Exhibit 1 Tab 1). The internet posting of November 3, 2003, also expresses a keen interest in finding out the plaintiff’s home address and the names of his family (and hints that he knows the plaintiff’s telephone number and the place where he works). These aspects of the plaintiff’s personal information are repeatedly mentioned in later internet postings that were admittedly published by Mr. Sullivan.

[27] I infer, from all of the evidence, that Mr. Sullivan did publish the internet posting of November 3, 2003, which is reproduced at Tab 7 of Exhibit 1. Accordingly, I find that he published the statements described in subparagraphs 3(d), (e), (f), (g), (h) and (o) of the statement of claim. I am also satisfied that the said statements refer to the plaintiff.

[28] Paragraphs 3(b) and (c) of the statement of claim are contained in a second internet posting dated November 3, 2003, which is reproduced at Tab 6 of Exhibit 1. Again, Mr. Sullivan testified that he did not recall writing this posting and did not know whether he had done so or not.

[29] The sign-off name for this posting was “TKC.” These are the initials for “The Kearsley Curse,” which is a name or pseudonym that the defendant often used by his own admission. That name, or a variation of it, appears on numerous occasions in many postings introduced in evidence at the trial that were admittedly written by the defendant. I find that Mr. Sullivan wrote and published the internet posting which is reproduced at Tab 6 of Exhibit 1. Accordingly, I find that he published the statements alleged in paragraphs 3(b) and (c) of the statement of claim. In addition, I am satisfied that these statements referred to the plaintiff.

[30] The statement alleged in paragraph 3(j) of the statement of claim is contained in an internet posting dated May 12, 2004, which is reproduced at Tab 24 of Exhibit 1. When asked about this in cross examination, Mr. Sullivan said, “I don’t recall writing this.” However, the posting purports to be “from: … Patrick Michael Sullivan.” The writer also appears to know that the plaintiff has been in contact with the Nanaimo RCMP. I am satisfied that Mr. Sullivan wrote and published this posting on the internet. I find also that it refers to the plaintiff.

[31] This brings me to the statements alleged in the 31 subparagraphs of paragraph 6A of the statement of claim. Some of these statements could only be relevant to the issue of damages, or to the breach of privacy claim (for example, paragraphs 6A(b) and (h)).

[32] In cross examination, Mr. Sullivan clearly admitted writing and posting all of the internet messages which comprised the statements in paragraph 6A, except for paragraph 6A(c). I made no note of subparagraph 6A(c) being proved, and so I conclude that publication of this statement has not been proved.

[33] It was not suggested by Mr. Sullivan that any of the statements set out in paragraph 6A of the statement of claim did not refer to the plaintiff. I find that all of the statements in paragraph 6A (with the exception of 6A(c)) do refer to the plaintiff.

[34] I am not satisfied that the plaintiff has proved that the defendant impersonated the plaintiff, as alleged in paragraph 13 of the statement of claim. That allegation required proof that the defendant published the posting which is reproduced at Tab 4 of Exhibit 1, and I am not persuaded that he did so.

The second issue: Are some or all of the statements published by the defendant defamatory of the plaintiff?

[35] The statements published by the defendant accuse the plaintiff of having committed numerous acts of immoral and criminal conduct, and of being a person of the worst possible character. He also accuses the plaintiff of being mentally unsound. The language used by the defendant to convey these meanings is often profane in the extreme. Included in the many statements published by the defendant of and concerning the plaintiff, are statements which I find convey the following meanings:

(a) that the plaintiff has verbally abused many persons and has enjoyed doing so;

(b) that the plaintiff is a sadist who likes to see young girls and women cut and bleeding;

(d) that the plaintiff has abused many women, both physically and mentally;

(e) that the plaintiff is mentally disordered;

(f) that the plaintiff is a liar;

(g) that the plaintiff is “true evil;”

(h) that the plaintiff is a coward;

(i) that the plaintiff has committed criminal offences in Canada and in the United States, and is being investigated by the police for offences in the United States, Canada and Australia;

(j) that the plaintiff offered to help a woman to commit suicide by cutting her throat;

(k) that the plaintiff made death threats and threats of violence to other persons;

(l) that the plaintiff is a predator who stalks and harasses people over the internet, many of whom are vulnerable and suicidal;

(m) that the plaintiff is an alcoholic and a user of illegal drugs;

(n) that the plaintiff is dangerous and poses a risk to persons living in the United States;

(o) that the plaintiff has committed the crimes of forgery, fraud and extortion; and

(p) that the plaintiff is a paedophile, a sexual pervert, a sexual predator and a date rapist.

[36] In my opinion, all of the above meanings conveyed by the statements published by the defendant are defamatory of the plaintiff, in their natural and ordinary meaning. The plaintiff testified that all of these imputations were false, but did admit that he suffered mental stress requiring treatment.

The third issue: Has the defendant established the defence of justification, in respect of some or all of the defamatory statements?

[37] Truth is a complete defence to a defamation action. If the defendant proves that the defamatory words he or she published about the plaintiff were substantially true, then the claim will fail, even if the defendant was motivated by the malicious intent to injure the plaintiff. See Newman v. Halstead 2006 BCSC 65 at paragraph 34.

[38] It was not until he testified at the trial that Mr. Sullivan conceded that he could not present any evidence to prove that the plaintiff was a criminal, sexual predator, pervert or paedophile. He seemed to agree that he was wrong to publish the statements which describe the plaintiff as having committed criminal offences and as being a sexual predator, sexual pervert, sexual psychopath, date rapist and paedophile. But he never did clearly resile from his other defamatory statements about the plaintiff. With respect to these many other statements, Mr. Sullivan maintained that at least some of the defamatory imputations were proved to be true by the statements published by the plaintiff himself on the internet. The defendant seemed to take the alternative position that some of the defamatory statements were valid opinions that could reasonably be drawn from the plaintiff’s own statements that he published on the internet.

[39] Mr. Sullivan cross examined Mr. Griffin at great length. He attempted to elicit admissions from the plaintiff to show that the plaintiff had made countless defamatory accusations and descriptions and had made threats of violence against a number of persons who posted messages to the internet news group “alt.suicide.holiday” (“ASH”). Those persons were Douglas Wiser, Louis Candell, Cori Wasserman, Lynn Hampton and Barbara Schwarz. The defendant also sought to obtain admissions that the plaintiff had betrayed his former girlfriend Grace Abbott. Another line of questioning was directed at showing the plaintiff to have been careless and reckless in publishing an address on the internet as if it was the defendant’s address when in fact it was the address of another Patrick Sullivan (Patrick Dennis Sullivan) who lived in Nanaimo. Finally, the defendant sought to establish that the plaintiff had made numerous false and defamatory statements on the internet, about the defendant.

[40] The defendant tried, but failed, to obtain admissions from the plaintiff that some of the defamatory statements made about him by the defendant, were true. In his own trial testimony, the defendant admitted that he wrote the “Magnus Pym FAQ” in 2004, and that he believed that what he wrote was factually correct. He said that his motive in writing it was to try to set the record straight and to respond to the plaintiff’s vicious and unjust attacks on himself, Douglas Wiser, Louis Candell, Cori Wasserman, Lynn Hampton and Barbara Schwarz.

[41] In his direct evidence, Mr. Sullivan admitted that he called the plaintiff a paedophile and a sexual predator, but said that it was only in response to what the plaintiff had already said about him. He admitted that he had no reason to believe that the plaintiff was a paedophile and said he was wrong to call the plaintiff a paedophile. But he said he believed the plaintiff preyed on vulnerable women, and thereby implied that he was not wrong to describe the plaintiff as being a “sexual predator.” Later in his testimony Mr. Sullivan seemed to accept that it was wrong for him to call the plaintiff a sexual predator, a sexual pervert and a date rapist.

[42] In cross examination, Mr. Sullivan was asked what proof he had to support his statement in the Magnus Pym FAQ that the plaintiff had “offered to assist in the death of an alt.suicide.holiday female by offering to cut her throat.” Mr. Sullivan said that Cori Wasserman had made this allegation against the plaintiff, but admitted that he had no proof that her allegation was true. (The plaintiff had firmly denied it.)

[43] Mr. Sullivan was questioned about what evidence he had to show that the plaintiff was engaging in “violent and abusive activities.” He answered that he believed the plaintiff’s activities on the internet were violent, but acknowledged that he had no evidence that the plaintiff had ever committed an act of violence, except for the plaintiff’s own statement that he had once used a stick “when he was a kid.”

[44] When asked for evidence to support his statement to the effect that a woman was trying to abort her baby after the plaintiff had gotten her pregnant and abandoned her, Mr. Sullivan said that he had only the woman’s allegation in an internet posting, which he had reported at page 17 of the Magnus Pym FAQ. He was unable to point to evidence showing that the plaintiff had taken advantage of suicidal people or caused harm to suicidal people.

[45] Mr. Sullivan was referred to his statement at page 54 of the Magnus Pym FAQ, to the effect that the plaintiff’s “predatory stalking” had gotten him into trouble with the RCMP and with the New York State Police, and was asked for his proof. He answered that he had filed complaints to the police about the plaintiff and Cori Wasserman had said that she had reported the plaintiff to the New York State Police. But he said he had no evidence to prove that the plaintiff is actually in trouble with the police or being investigated by the police.

[46] Mr. Sullivan was asked about part of what he wrote in his internet posting dated July 7, 2007 (Tab 63 of Exhibit 1) as follows:

Robert Griffin is a cyber stalker and a liar. On News Groups, Robert Griffin harassed people relentlessly. Robert Griffin has also threatened people with various acts of violence and of death on numerous occasions.

. . .

Robert Griffin is a liar, a cyber stalker and a person who routinely threatens people with violence and/or death.

[47] Mr. Sullivan said that it was true that the plaintiff had lied about Douglas Wiser when he claimed that Douglas Wiser had helped Chris Devlin to die. Mr. Sullivan was then shown Exhibit N which appeared to be an internet posting by Doug Wiser dated July 17, 2001, in which Mr. Wiser appears to have said, among other things, that he “had to help little Chris die.” Mr. Sullivan acknowledged that Douglas Wiser may have written that posting.

[48] Mr. Sullivan insisted that the plaintiff was a cyber stalker and had threatened people with various acts of violence and death, and referred to the plaintiff’s attacks on Douglas Wiser as proof that these descriptions were true. Mr. Sullivan suggested to the plaintiff that he had made death threats against Douglas Wiser and he referred the plaintiff to Tabs E and F of Exhibit 4 in this connection. Mr. Griffin admitted that he wrote and published the posting dated April 19, 2003, (at Tab E) which included the following statements:

Douglas Wiser must leave ASH now. Or die.

They are your alternatives, Douglas Wiser.

[49] Tab F was an internet posting dated September 26, 2003, in which the plaintiff had a “conversation” with Louis Cantell which included the following:

Louis Cantell: so you technically want Doug Wiser dead?

The plaintiff: Not “technically” dead. Really dead. Not a death threat, just a cheery wish to brighten my day.

[50] To the extent that the defendant accuses the plaintiff of making a death threat to Douglas Wiser, I think that the plaintiff’s own postings show that to be true. In my opinion, a reasonable person reading the above words would take them to be a death threat against Douglas Wiser. I accept that the plaintiff did not intend to make any serious threat to cause Mr. Wiser’s death, but the natural and ordinary meaning of the words he used do, in my opinion, convey such a threat.

[51] However, Mr. Sullivan has failed to prove the truth of the defamatory statements that the plaintiff: “…routinely stalks, harasses and threatens people over the internet,” or that the plaintiff engaged in “violent…activities,” or that he was “threatening violence,” or that he had “threatened…many people” or that he had made statements “threatening…many posters…with physical harm,” or that the plaintiff had been making “death threats” and “telephone death threats” for “years,” or that the plaintiff “routinely…threatens people over the internet,” or that he is “a person who routinely threatens people with violence and/or death.”

[52] The plaintiff himself admitted that he had been suffering severe psychological upset during part of the relevant time, in particular, from November 2003 to the spring or summer of 2004. That being so, the defendant’s statements to the effect that the plaintiff had suffered “a mental breakdown,” that he was “psychologically disturbed” and that he had “mental health issues” may have been justified, particularly if they had been limited to a certain time period. But the defendant’s statements that the plaintiff was a “nut case,” had “gone completely over the edge mentally,” and that he was “a true lunatic,” were excessive and were not justified.

[53] In cross examination, the plaintiff admitted that he had made a posting to ASH on July 26, 2001, using the name “Doug” and “d r wiser,” in which Douglas Wiser was described as a “sociopath, fraud and liar.” The plaintiff accepted that it was wrong for him to have done this, and explained that he did it because Mr. Wiser had refused to cease and desist making defamatory postings about him, and because he wanted to try to “remove” some of Mr. Wiser’s postings. I accept that this was the plaintiff’s motive. But to this limited extent, his admission provides justification for the defendant’s later (July 2007) statement to the effect that the plaintiff had committed “forgery.”

[54] The defendant failed to prove that any of his many other defamatory statements about the plaintiff were true. The defence of justification fails.

The fourth Issue: The defence of Fair Comment

[55] A defendant may make a statement about the plaintiff which is false and defamatory, if the statement is a comment (i.e. an opinion) rather than a bare statement of fact, if the comment is based upon true facts which are stated, if the matter commented upon is of public interest, and if the comment is “fair” in the sense that it is an honest expression of the real view of the defendant. Even if the defendant succeeds in proving these essential elements, the defence will be defeated if the plaintiff proves that the defendant made the comment with malice. See the summary of the law by Macaulay J. in WeGo Kayaking Ltd. v. Sewid 2007 BCSC 49 at paragraphs 73-81.

[56] Both the plaintiff and the defendant were members of a group of persons (perhaps as many as 100) who regularly posted messages to the Usenet website known as “ASH”. Generally speaking, the persons in this group had experienced or were experiencing thoughts of committing suicide, and they would discuss their problems and seek support from other members of the group. For the most part, these persons did not publish their real names, nor give their addresses or telephone numbers.

[57] The plaintiff accused Douglas Wiser of encouraging or assisting a teenaged boy, Chris Devlin to commit suicide, based on statements made by Mr. Wiser in one or more of his own postings. The defendant accused the plaintiff of offering to cut the throat of Cori Wasserman, who was a member of the ASH group. The defendant was very critical of Karin Spaink, who apparently published messages on the internet which described methods by which a person could commit suicide. In my opinion, the issues raised in these debates on ASH were matters of public interest.

[58] Virtually all of the defamatory statements made by the defendant about the plaintiff were asserted as statements of fact. They were not and did not purport to be, expressions of opinion based on a foundation of true facts which were set out together with the opinion, for all readers to see. It is true that, in many of his publications, the defendant expressly included the addresses of websites (“links”) which he alleged provided support for the statements he was making about the plaintiff, and which he invited readers to look up and read for themselves. In some of his publications, the defendant included previous publications by the plaintiff which he claimed provided the factual foundation for the defamatory comments he was making about the plaintiff. In connection with the defence of justification, I have mentioned the statements made by the plaintiff against Douglas Wiser which, in the present context, could support the opinion asserted by the defendant that the plaintiff was making threats of violence and death against Mr. Wiser. But those opinions, while they might be fair comments, are probably not a matter of public interest. As to the defendant’s statements to the effect that the plaintiff offered to help Cori Wasserman to kill herself by cutting her throat, this was not fair comment. It was expressed as a fact, and it was not accompanied by a set of true facts which could rationally support such a conclusion. These statements, of course, comprised only a small part of the defamatory statements made by the defendant.

[59] I conclude that the defence of fair comment has not been made out.

Qualified Privilege

[60] Although the defendant did not plead or assert in any formal way the defence of qualified privilege, I think it should be considered. That is because the defendant in his trial testimony sought to explain his defamatory statements of the plaintiff in most cases, by claiming that he was acting in self defence, and only in response to false and defamatory statements made by the plaintiff about him. The defendant made a determined effort to cling to this explanation, particularly in connection with his published assertions that the plaintiff was a sexual predator, sexual pervert, paedophile and date rapist. Mr. Sullivan claimed a similar right of reply to alleged defamatory statements and threats made by the plaintiff against other persons who either deserved his (Mr. Sullivan’s) support or who were not capable of defending themselves.

[61] The defence of qualified privilege was defined in Botiuk v. Toronto Free Press Publications Ltd., supra, at paragraphs 78-80. If the occasion on which a defamatory statement is published gives rise to an interest, or a duty (legal, social or moral) in the defendant to make the statement to those who receive it, and if the recipients of the statement have a corresponding interest or duty to receive it, then the defamatory statement will be protected by privilege. In the present case, the defendant asserts self interest and a moral duty to make the defamatory statements about the plaintiff to the same audience who received the plaintiff’s defamatory statements about the defendant and other persons.

[62] In cross examining the plaintiff, Mr. Sullivan elicited the admission that the plaintiff had published on ASH, on February 11, 2008, the posting which is reproduced at Tab M of Exhibit 4. Among the many statements made by the plaintiff in that internet message which are defamatory of the defendant is the statement describing the defendant as “the sexual predator/pervert.” The plaintiff frankly admitted that when he posted his defamatory statements on February 11, 2008, he believed that the defendant was not a paedophile, and implied that he had no reason to believe that he was a sexual predator or pervert either.

[63] However, this is the only statement of this kind made by the plaintiff about the defendant that has been proved. The assertion by the defendant that he had a “right to respond” has no merit whatever, because he had first labelled the plaintiff as being “a sexual psychopath” on November 2, 2003. These false and defamatory statements made by the plaintiff could explain the defendant’s statements after February 11, 2008 in which he described the plaintiff as being a “disgusting sexual pervert” (February 12, 2008), as being a person having “sexual perversions” (February 16, 2008) and as being a “sex pervert” (March 6, 2008). But these statements of the plaintiff made on February 11, 2008 cannot provide any explanation for the defendant’s earlier statements in which he described the plaintiff as being “a sexual psychopath” (November 2, 2003), “a pervert” (May 19, 2007), “a paedophile” (January 30, 2008), a “sex pervert” (January 31, 2008), a “paedophile” (January 31, 2008) and a “sex predator” (February 1, 2008).

[64] The evidence is such that I cannot determine whether the plaintiff’s offending statements were published before or after the statements published by the defendant on February 11, 2008 (see Tab 76 of Exhibit 1), which described the plaintiff in the “subject” line as being a “sexual predator/date rapist.” I suspect that the plaintiff was goaded into making these improper statements by the defendant’s postings of January 30 and 31 and February 1, 2008.

[65] I was not impressed with Mr. Sullivan’s attempt to show that the plaintiff had falsely accused him of being a paedophile at an earlier date by using or publishing the term “pms pedo” (which had originally been used by the defendant). The plaintiff admitted he made the posting dated June 19, 2007 (referred to in the defendant’s posting at Tab 61 of Exhibit 1), but said that he only used “pms pedo” for the purpose of removing a posting made by a misguided supporter against Mr. Sullivan, which he believed to be false. I accept the plaintiff’s evidence on this somewhat confusing point. Since the plaintiff had never called the defendant a “paedophile,” and since the defendant had himself used the term complained of, I am not satisfied that a reasonable person would have understood that the plaintiff was calling the defendant a “paedophile.”

[66] The defendant sought to justify many of his other kinds of defamatory statements about the plaintiff as being legitimate responses to earlier attacks by the plaintiff, either against the defendant himself or against other persons such as Douglas Wiser and Cori Wasserman. Even if it is assumed that the defendant had a moral duty to defend other persons from attacks made by the plaintiff, many of his alleged “responses” were either not responsive to statements made by the plaintiff, or were so excessive that they exceeded any privilege that might have attached to the occasion. I find that the same holds true, in almost all cases, to the defendant’s alleged “responses” to the plaintiff’s defamatory statements about him. I conclude that, even if the defence of qualified privilege had been pleaded or asserted, it could not succeed.

The Fifth Issue: If some of the defamatory statements are protected by the defence of fair comment (or qualified privilege), has the plaintiff proved that the defendant was actuated by malice?

[67] In case I am wrong in concluding that neither fair comment nor qualified privilege is a defence to any of the many defamatory statements, I will deal with the issue of malice.

[68] In Botiuk v. Toronto Free Press Publications Ltd., the court stated (at paragraph 79):

Malice may be established by showing that the defendant either knew that he was not telling the truth, or was reckless in that regard.

[69] At paragraph 96, the court notes that recklessness with the truth will amount to actual malice, but mere carelessness will not. The court then (in paragraph 97) cited with approval the following statement of Lord Diplock in Horrocks v. Lowe:

…what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, “honest belief.” If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. …But despite the imperfection of the mental process by which the belief is arrived at it may still be “honest,” that is, a positive belief that the conclusions they have reached are true. The law demands no more.

[70] In his trial testimony, the defendant admitted that he did not have an honest belief that the plaintiff was “a sexual psychopath,” “a paedophile,” “a sexual predator,” “a sexual pervert” or “a date rapist.”

[71] That admission is tantamount to the admission that he was reckless in making these defamatory statements about the plaintiff. Accordingly, the defendant is to be treated as if he knew these statements were false when he published them. I therefore find that all the defamatory statements of this type were motivated by express malice. It follows that none of these kinds of statements could be protected by the defences of fair comment or qualified privilege.

[72] The defamatory statements to the effect that the plaintiff was a criminal, that he was on the run from the police and that he had committed criminal offences in Canada and the United States are in the same category as those having a sexual component. Although the defendant testified that he believed the plaintiff had been under investigation by the New York State Police as a result of a complaint by Cori Wasserman (and that he had made a complaint to the RCMP), he made no attempt to assert a belief in these more extreme statements. Again, I find that he was reckless with the truth and thereby made the statements maliciously. Consequently, none of the defamatory statements which express or imply criminal conduct on the part of the plaintiff could be protected by the defences of fair comment or qualified privilege.

[73] There are other categories of defamatory statements and alleged threats by the defendant, which should be subjected to the test for malice. I will make that inquiry in connection with the issue of damages.

[74] I conclude that the plaintiff has succeeded in establishing liability for defamation against the defendant.

The cause of action for breach of privacy

[75] The plaintiff’s claim for breach of privacy is advanced in paragraphs 14 and 15 of the statement of claim:

14. From the period August 2000 until November 2003, the plaintiff subscribed to and posted messages to the aforementioned user group [alt.suicide.holiday] primarily using the “handle” name “Magnus Pym,” and the plaintiff was known to the aforementioned user group under the pseudonym of “Pym.”

15. The defendant improperly obtained the plaintiff’s name and other personal information about the plaintiff and disseminated that information and improperly solicited and obtained personal photographs said to be of the plaintiff which the defendant then attached to the defamatory publications and by doing so breached the privacy of the plaintiff in an actionable manner within the Privacy Act of British Columbia and deliberately in so doing abused and harassed the plaintiff and invited others to abuse and harass the plaintiff.

[76] In the present case, the relevant part of the Privacy Act is s.1 which reads as follows:

1(1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.

(2) the nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others.

(3) In determining whether the act or conduct of a person is a violation of another’s privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties.

(4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.

[77] The plaintiff alleges that in late October 2003, the defendant induced Grace Abbott (the plaintiff’s former girlfriend) to give him the name and address of the person who was posting messages on ASH using the pseudonym Magnus Pym. The plaintiff alleges that the defendant induced Grace Abbott to turn over this information to him by telling her lies about the plaintiff. It is further alleged that, in December 2003, the defendant began posting the plaintiff’s true name on ASH without the plaintiff’s consent, that he soon added the plaintiff’s address of Sydney, Australia, and that he continued to publish the plaintiff’s name and address in conjunction with his defamatory statements about the plaintiff, on the internet, on countless occasions thereafter. The plaintiff further alleges that the defendant wrongfully obtained his photograph or photographs, and published his photograph on the internet together with numerous defamatory statements against the plaintiff contained in the “Magnus Pym FAQ,” beginning on or about November 1, 2004.

[78] The defendant denies that he used any improper means to obtain the plaintiff’s name and address, and photographs. He admits that he did publish the defendant’s name and address, but says that he only did so because the plaintiff had published the defendant’s name and address beforehand. The defendant also admitted that he posted the plaintiff’s photograph on the internet beginning on or about November 1, 2004, and said that someone had sent him the photographs, at least one of which appeared to have been altered to show the plaintiff in an unflattering manner.

[79] The plaintiff testified that the defendant had already posted his own name, address and telephone number, before he (the plaintiff) ever published the defendant’s personal information on the internet. The defendant admitted these facts on cross examination, but said that it was wrong for the plaintiff to publish his (the defendant’s) personal information in conjunction with the defamatory statements that the plaintiff was making about him.

[80] The plaintiff testified that he had been involved in posting to ASH for a number of years off and on. He described this website as having been set up for persons who were feeling depressed and suicidal to discuss their problems, to vent their negative feelings as a safety valve and to attempt to gain some relief from their condition. He said that the group consisted of about 50 to 100 regular users and up to perhaps 500 persons who visited the website on less frequent occasions. The plaintiff described how he became engaged in a vicious war of words with Douglas Wiser on the ASH website. Essentially, the plaintiff testified that he felt a duty to defend persons who were being attacked by Mr. Wiser. These persons included a depressed 15 year old girl (Megan Sullivan) whom Mr. Wiser had apparently described as “a teenage whore,” and a 16 year old boy (Chris Devlin) who lived in England and who (the plaintiff believed) had been encouraged to commit suicide by Mr. Wiser. The plaintiff was also critical of Cori Wasserman for (in his opinion) harassing a 16 year old boy (Terry Lazara) and for lying to the police about the boy; and for making false and hurtful statements about Amy Brackett and Kathleen Walker.

[81] Some persons in the group, including the defendant, became supporters of Douglas Wiser. Others supported the plaintiff. Some people identified themselves in their postings, but most used a pseudonym. The plaintiff used the pseudonym “Magnus Pym.” The people who posted messages to ASH were either depressed or suicidal or both. Many of the messages disclosed highly confidential personal feelings. Many of the postings used language of extreme profanity to respond to messages sent by other members of the group, and to make accusations and counter-accusations against other members of the group. The plaintiff testified that it was extremely important to him that his identity be concealed.

[82] It appears that, in or about October 2003, someone published Grace Abbott’s name and personal information on ASH without her consent. The plaintiff testified that he believes the defendant published Grace Abbott’s personal information but then falsely told her that it was the plaintiff who had published it. The plaintiff denies publishing the personal information of Grace Abbott. He believes that she would never have given his personal information to the defendant, had she known the truth and not been deceived by the defendant’s assertion that he (the plaintiff) had published Ms. Abbott’s personal information. It seems to be common ground that Grace Abbott disclosed the plaintiff’s identity to Mr. Sullivan. Grace Abbott was not called as a witness, and I cannot resolve the debate about why she gave the plaintiff’s personal information to the defendant. The fact remains, however, that the defendant did obtain the plaintiff’s personal information, and did publish it on the internet, without the plaintiff’s consent.

[83] I accept the evidence of the plaintiff which I have outlined above.

[84] Having regard to the criteria in s. 1 of the Privacy Act, it is my opinion that the plaintiff was entitled to have his name, address and photographs kept private. It is also my view that (at least up to the time when he published the personal information of Douglas Wiser, Cori Wasserman and the defendant) the plaintiff had a reasonable expectation that any member of the ASH group who obtained his personal information or photograph would not publish it on the internet. The defendant did so, and I find that his publication of the plaintiff’s personal information and photograph on the internet was done wilfully and without a claim of right. I conclude that the plaintiff has proved all essential elements of a cause of action for breach of privacy.

Damages

[85] The plaintiff claims general damages, aggravated damages, punitive damages and special damages. I have earlier set out the defendant’s general position at paragraph 7.

General Damages

[86] The rules of law which must guide trial judges in assessing general damages in a defamation action are set out in two paragraphs of Hill v. Church of Scientology of Toronto, supra, as follows:

182. The factors which should be taken into account in assessing general damages are clearly and concisely set out in Gatley on Libel and Slander (8^th ed.), supra, at pp. 592-93, in these words:

Section 1. ASSESSMENT OF DAMAGES

1451. Province of the Jury. In an action of libel “the assessment of damages does not depend on any legal rule.” The amount of damages is “peculiarly the province of the jury,” who in assessing them will naturally be governed by all the circumstances of the particular case. They are entitled to take into their consideration the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and extent of publication, the absence or refusal of any retraction or apology, and “the whole conduct of the defendant from the time when the libel was published down to the very moment of their verdict. They may take into consideration the conduct of the defendant before action, after action, and in court at the trial of the action,” and also, it is submitted, the conduct of his counsel, who cannot shelter his client by taking responsibility for the conduct of the case. They should allow “for the sad truth that no apology, retraction or withdrawal can ever be guaranteed completely to undo the harm it has done or the hurt it has caused.” They should also take into account the evidence led in aggravation or mitigation of the damages.

. . .

187. At the outset, I should state that I agree completely with the Court of Appeal that each libel case is unique and that this particular case is in a “class by itself.” The assessment of damages in a libel case flows from a particular confluence of the following elements: the nature and circumstances of the publication of the libel, the nature and position of the victim of the libel, the possible effects of the libel statement upon the life of the plaintiff, and the actions and motivations of the defendants. It follows that there is little to be gained from a detailed comparison of libel awards.

The circumstances and conduct of the plaintiff

[87] The plaintiff is 43 years of age and is a citizen of Australia, living in Sydney. He has worked in the telecommunications industry for a number of years, up until 2002. Since then, he has made investments in the business of car restoration and the real estate industry, but these were not successful. The plaintiff did not detail his current activities. As mentioned, he made postings on and communicated with other members of the Usenet group ASH, and became embroiled in a vicious dispute with several of the members of ASH, including the defendant.

[88] The war of words escalated when the defendant published the plaintiff’s personal information and identified him as being “Magnus Pym.” The plaintiff testified that he was in a very low and vulnerable mental state in late 2003 and early 2004. The plaintiff made complaints about the defendant’s postings, to the internet servers that the defendant was using, but these complaints did not deter the defendant. By February 17, 2004, the plaintiff had obtained the name and address of the defendant, namely: Patrick Michael Sullivan of 308-312 Mt. Benson Street, Nanaimo, BC, Canada V9F 5K2. On that date, the plaintiff published a notice on ASH identifying the defendant and demanding that he cease and desist from contacting the plaintiff or using the plaintiff’s name on the internet. The plaintiff also demanded a retraction and an apology for the “false statements” that he had made about the plaintiff, and that he remove all libelous statements that he had made about the plaintiff.

[89] The plaintiff states that the defendant ignored his cease and desist posting. The plaintiff made a complaint to the RCMP at Nanaimo and asked them to investigate the defendant. By letter dated July 9, 2004 (Exhibit 1, Tab 26), the Nanaimo RCMP notified the plaintiff that they had spoken to the defendant and suggested that he stop the behaviour being complained of by the plaintiff, but that he had not committed a criminal offence and they were concluding their investigation.

[90] The plaintiff consulted one or more lawyers, and this action was commenced on his behalf by Mr. Burnettt at the Nanaimo Registry of this court, on November 25, 2004. Mr. Sullivan filed a statement of defence but did not retain counsel. He continued publishing statements about the plaintiff on the internet, which prompted Mr. Burnettt to write him a letter dated October 28, 2005 (Exhibit 1, Tab 50), warning the defendant to stop re – posting the Magnus Pym FAQ on the internet.

[91] The defendant did not cease and desist as requested and the plaintiff says that, in anger and frustration, he was lured into a continuing debate on the internet with the defendant. (I accept this evidence.) In the course of these communications, the plaintiff made a number of statements about the defendant which ought not to have been made. In cross examination, the plaintiff candidly admitted that he sometimes “played games” with the defendant, after he refused to comply with the plaintiff’s demand (in February 2004) that he cease and desist. The plaintiff’s postings reached the point where he made statements about the defendant which he either believed were false or had no reason to believe were true, on February 11, 2008 (Exhibit 4, Tab M). These statements included words describing the defendant as being “the sexual predator/pervert,” “the drug abuser/peddler” and “the fraud.”

[92] In his testimony, the plaintiff acknowledged that he should have restrained himself from responding to the defendant’s defamatory statements about him. But he said that the defendant’s conduct had broken him emotionally and physically, ruined his relationship with Grace Abbott and made him fearful of going out in public and of being exposed as the person whom the defendant was writing about. He said that he made a suicide attempt in January 2004 and that he had been consulting psychologists since that time. The plaintiff further testified that the defendant’s posting on numerous websites and using countless pseudonyms had just about driven him mad looking for any postings that may have been made about him by the defendant. He also said that it had almost broken him financially, in order to bring this action to trial.

[93] The plaintiff testified that he believed in the truth of almost all of the statements he made about the defendant, Douglas Wiser, Louis Candell, Cori Wasserman, and Lynn Hampton. Excluding his statements of a sexual nature about the defendant that he made on February 11, 2008, the plaintiff said, in effect, that any of the defamatory statements about these people that were not true, he believed to be reasonable opinions based on facts that were true, generally based on the person’s own statements.

[94] The plaintiff stated that he came to realize that his attempts to defend himself were making him look worse as time went on. He said that he was desperate and only kept responding to the defendant because he wanted the defendant to stop and to leave him alone. He acknowledged in cross examination that a Google search dated April 11, 2008 showed that his account with Google had been cancelled or banned, apparently due to a violation of Google’s “terms of use,” but said that he had just discovered this and was uncertain as to the reason why it was cancelled. I inferred from the plaintiff’s testimony and his demeanour that he was ashamed of some of the things that he had said about the defendant, Douglas Wiser and Cori Wasserman. He was still posting messages to Douglas Wiser as of March 7, 2008, and making defamatory and unpleasant comments to him.

[95] I accept the plaintiff’s evidence, and I find that the defendant’s defamatory statements, together with his public and worldwide exposure of the plaintiff’s identity have had a serious adverse effect on the life and the mental health of the plaintiff. However, the plaintiff had repeatedly identified Douglas Wiser, Cori Wasserman and the defendant in his defamatory postings about them, and, notwithstanding that they had identified themselves previously, he must have known that they objected to the way the plaintiff used their personal information and that one or more of these persons would be trying to find out his true identity. He would also have known that, if they discovered his true identity they would not hesitate to publish it. So to some extent, the plaintiff assumed the risk that his identity might be deliberately disclosed by those whom he was repeatedly identifying in his postings. But I find that the plaintiff desperately wanted to conceal his true identity, and in no way did he consent to being publicly exposed.

The nature of the libel

[96] I agree with Mr. Burnett’s submission that the defamatory statements were “numerous and monstrous,” “outrageous” and “so extreme that it is difficult to find case precedents that come anywhere close.”

The mode and extent of publication

[97] The defendant published the defamatory statements not only on the ASH website, but on other news groups and internet websites. The countless repetitions of these postings and the “links” to these postings are so vast as to stagger the mind. As stated by the majority in Barrick Gold Corp. v. Lopehandia (2004) 71 O.R. (3d) 416 (at paragraph 1):

The internet. . .enables individuals. . .to communicate with a potentially vast global audience. It is a medium which does not respect geographical boundaries. . . the internet is also potentially a medium of virtually limitless international defamation.

[98] The extent, frequency and repetition of the publication of the defamatory statements in this case is a serious aggravating factor.

The absence or refusal of any retraction or apology

[99] The plaintiff asked the defendant to stop his publications on February 17, 2004, and the defendant admits that he received this request very soon thereafter. He gives no acceptable explanation for failing to stop when asked to do so. The same applies to the letter from Mr. Burnettt dated October 28, 2005, almost a year after the action was commenced, when the defendant was continuing with his publications. It is difficult to understand why the defendant refused to cease the publications. From their tenor, I infer that his motive in repeating the defamatory statements right up to the time of trial was to try to intimidate and deter the plaintiff from going ahead with the trial. The plaintiff did not capitulate to this relentless onslaught, but he did resume his publication of defamatory statements about the defendant. But there is no suggestion that he would have done so, if the defendant had acted reasonably and terminated his publications.

[100] The defendant sought to establish that he had offered to make peace with the plaintiff in early June 2003, but that the plaintiff responded with an attack on Douglas Wiser. That was not shown by the evidence. Mr. Sullivan’s posting of June 3, 2003 (Exhibit 7) appears to be an apology to the plaintiff for his posting of May 29, 2003. The plaintiff’s response was receptive to the defendant’s apology, although he was not including Mr. Wiser in any potential “cease fire.” As I see it, the defendant has wrongly tried to use this as an excuse to continue defaming the plaintiff.

Additional conduct of the defendant

[101] The defendant persisted with his main defence of justification, up to and throughout the trial. There was no merit in this defence, save for the one aspect which I have discussed. However, it should be noted that the defendant did not plead justification, or advance justification at the trial, with respect to the defamatory statements of a sexual nature.

[102] The defendant personally conducted a very lengthy and probing cross examination of the plaintiff. I would not characterize the defendant’s manner of questioning the plaintiff as being hostile, but I think the questioning was designed to make the plaintiff feel bad about his own publications. However, that was not an improper purpose. Moreover, the defendant was not represented by counsel, and I think it is obvious that the defence would have been conducted differently if the defendant had been represented by counsel.

Other aggravating facts

[103] I have found that the defendant was, in many instances, indifferent to the truth of the statements he was making. That is malice and that is an aggravating factor. I will have more to say about this and other aspects of malice when discussing the issue of aggravated damages.

Facts in mitigation of the damages

[104] I have attempted to describe the context in which the vicious debate between the plaintiff and the defendant arose. The plaintiff certainly cannot be absolved of all responsibility for creating the hostile environment in which the defendant made the defamatory statements against him and for later resuming the war of words himself, instead of seeking an interlocutory injunction. This does not provide a legal excuse or defence for the defendant, but in my opinion it is a factor which mitigates the damages that should be awarded.

[105] Although the defamatory statements were published on the internet, it is impossible to say how many persons actually read any of them. Of those who did read at least some of them, it is unknown whether anyone actually believed any of the statements. It is also unknown whether anyone who personally knew the plaintiff read any of the defamatory statements. The plaintiff did not allege that his reputation or standing in his community was of an unusually high order. In some cases, these factors could have a substantial mitigating effect. In the present case, I find them to have some, but limited, mitigating effect.

[106] Applying all of the factors described in paragraphs 182 and 187 of Hill v. Church of Scientology of Toronto to the facts of this case; it is my opinion that a fit award for general damages is $100,000, and I so order.

Aggravated Damages

[107] In Hill v. Church of Scientology of Toronto, the Supreme Court of Canada adopted the following statement from Gatley on Libel and Slander as embodying the test to be applied when deciding whether aggravated damages should be awarded (at paragraph 183):

1452. Aggravated damages. The conduct of the defendant, his conduct of the case, and his state of mind are thus all matters which the plaintiff may rely on as aggravating the damages. “Moreover, it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff’s proper feelings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation.” “In awarding ‘aggravated damages’ the natural indignation of the court at the injury inflicted on the plaintiff is a perfectly legitimate motive in making a generous, rather than a more moderate award to provide an adequate solatium. . . that is because the injury to the plaintiff is actually greater, and, as the result of the conduct exciting the indignation, demands a more generous solatium.”

[108] It is apparent that the court should award aggravated damages if satisfied that “the motives and conduct of the defendant. . .aggravate the injury done to the plaintiff.” At paragraphs 188 and 189, the court in Hill affirmed that the malicious conduct of the defendant, where it is shown to have increased the plaintiff’s mental distress from being defamed, will attract an award of aggravated damages. It is also made plain that aggravated damages cannot be awarded, unless there is a finding that the defendant was motivated by actual malice (paragraph 190).

[109] In addition to being reckless with the truth, there is much evidence in this case which indicates malice on the part of the defendant. I would summarize the facts I find are proved by this evidence in this way.

(a) The defendant made threats against the plaintiff to find him and to do violence to him (see Exhibit 1, Tab 2 and Tab 7, and particularly paragraph 10(f) and (g) of the statement of claim, which are contained in Tab 7).

(b) In an internet posting dated February 14, 2004, the defendant told the plaintiff that he was being “targeted for harassment” (Exhibit 1, Tab 15).

(c) The defendant repeatedly encouraged other readers to review the defamatory statements that he had made about the plaintiff, and to join him in criticizing the plaintiff.

(d) The defendant repeatedly raised the spectre of the plaintiff’s deceased father on the ridiculous pretext that the plaintiff’s father had to be identified in a detailed way so as not to be blamed for the wrongdoings of his son (for example, see Tabs 66 and 76 of Exhibit 1).

(e) The defendant repeatedly defamed the plaintiff’s counsel with no semblance of justification.

(f) The defendant continued making and republishing defamatory statements against the plaintiff and his counsel after the action was commenced notwithstanding demands that he cease and desist, and continued to do so right up to the time of trial.

(g) The defendant continued defaming the plaintiff after the action was commenced, and up to the time of trial, in an attempt to deter the plaintiff from proceeding to trial.

(h) The defendant sought to belittle and humiliate the plaintiff by giving contemptible descriptions of the plaintiff’s physical appearance and character traits, which were totally unconnected to any debate going on between the plaintiff and the defendant.

(i) The defendant sought to defame the plaintiff to the widest possible audience.

(j) The defendant sought to enlist the support of Patrick Dennis Sullivan against the plaintiff, by telling Patrick Dennis Sullivan (in effect) that the plaintiff was deliberately defaming and attacking him (Patrick Dennis Sullivan), when the defendant well knew this was false.

(k) The defendant persisted in the defence of justification through the trial when for the most part there was no evidence which could even support a rational belief in the truth of his defamatory statements.

(l) While the defendant denied that he acted maliciously, he did admit that he was motivated by anger.

[110] In my opinion, the facts which I have outlined above “demonstrate that the defendant was motivated by an unjustifiable intention to injure the plaintiff” (see Hill, paragraph 190). I find also that the defendant’s malicious conduct increased the injury to the plaintiff, and justifies an award of aggravated damages. I assess aggravated damages in the amount of $50,000.

Punitive Damages

[111] The principles to be applied in deciding whether punitive damages should be awarded were set out in Hill v. Church of Scientology of Toronto at paragraphs 196-199. The court said this (in part) about punitive damages at paragraph 196:

. . .They are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner. It is important to emphasize that punitive damages should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence.

[112] In the present case, I am not persuaded that “the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence.” Accordingly, I decline to award punitive damages.

Damages for Breach of Privacy

[113] In the course of his intense, voluminous and prolonged campaign against the plaintiff, the defendant re-published many postings that had been written by the plaintiff using a pseudonym, and identified the plaintiff by name and address. In some of these postings, the plaintiff revealed his deepest and innermost thoughts and feelings about his own psychological state and about the women in his life. Of course, he believed he was speaking anonymously and that his identity would not be revealed by any of the select few persons who knew that he used the pseudonym Magnus Pym. Some of these writings by the plaintiff show that he was tormented by depression and thoughts of committing suicide.

[114] On the other hand, the plaintiff must have known there was a risk that his identity would be disclosed in the course of the ongoing “war of words” with the defendant, Douglas Wiser and others. The plaintiff took great care to describe the identities of these other persons when publishing derogatory material about them. I accept that these other persons had themselves previously disclosed their names in at least one internet posting before the plaintiff began using their names. But he had to know that, because he was identifying them as (to say the least) bad persons on the internet, they would certainly do the same thing to him, if they could get their hands on his personal information.

[115] In all of the circumstances, I find that $25,000 would be a proper award for damages for breach of privacy, and I so order.

Special Damages

[116] Exhibit 3 contains invoices totalling $4,644.50 for expenses incurred by the plaintiff from January 13, 2004, onward. The great majority of these expenses were for psychological treatment and counselling. The remainder were for interpreting services required to investigate postings on the internet in Russia.

[117] The plaintiff testified that it was necessary for him to consult psychologists because of his suicide attempts, which he says were caused, in large part, by the defendant’s conduct. The plaintiff said that the Magnus Pym FAQ was published on the internet in Russia and he incurred expenses for interpreters in order to get that posting removed.

[118] I accept the plaintiff’s evidence and I find that he is entitled to special damages in the amount of $4,644.50.

The claim for injunctive relief

[119] Notwithstanding Mr. Sullivan’s strenuous opposition to this claim, in my opinion a permanent injunction is not only justified but required in this case. In light of his conduct over the past three and one-half years, it cannot be assumed that Mr. Sullivan will cease all efforts to publish new defamatory material or re-publish old defamatory material, about Mr. Griffin. Nor can Mr. Sullivan be trusted to make every possible effort to remove defamatory material about the plaintiff which he is responsible for publishing, and which still remains on the internet by his own admission.

[120] In my view, the wording of the injunction must be very broad, having regard to Mr. Sullivan’s propensity for using many different identities, nick names and internet addresses. There is also evidence that he has used “anonymous re-mailers,” which is a device for posting a message on the internet that cannot be traced back to the original sender. Mr. Sullivan raised the objection that if the injunction purports to prohibit the use of anonymous re-mailing, he might get blamed for something that he did not do. The defendant further protests that some of the people who support him in his campaign against the plaintiff may have published or will in the future publish defamatory material about the plaintiff for which he will be blamed. The existence of these risks cannot be denied, but I think they are risks to which the defendant must be subjected. The law of civil contempt requires proof beyond a reasonable doubt, and I think this will provide sufficient protection to Mr. Sullivan from wrongful accusations.

[121] Accordingly, I order that the defendant, by himself, his agents, servants or otherwise be restrained from publishing, or causing to be published, on the internet or by any other method or medium, any defamatory statement referring in any way to the plaintiff, whether by name, pseudonym, address, photograph or other means of identity. The order will prohibit the defendant from publishing or causing to be published any such statement in his own name, in the name of any nick names, pseudonyms, or aliases that he now uses, has used, or may use in the future. The defendant is further prohibited from publishing or causing to be published any such statement about the plaintiff, anonymously, or in the name of another person.

[122] It is my intent that the order will prohibit Mr. Sullivan from using the device or technique of “anonymous re-mailing” to publish or republish any defamatory statement of or concerning the plaintiff.

[123] There will also be a mandatory injunction requiring the defendant to make all reasonable efforts to remove from the internet, the entirety of any and all of the internet postings that he has published or caused to be published, and which refer to “Robert Griffin,” “Griffin,” “Magnus Pym,” “Pym” or “Pymmy” within 60 days of todays date.

[124] The injunction will also include a term that the defendant be restrained from contacting or communicating with the plaintiff, directly or indirectly in any way or by any method. In ordering this term (which is broader than the term requested in the statement of claim) I rely on the evidence presented and on the inherent jurisdiction of this court.

[125] In the event that the plaintiff believes that the defendant is in breach of this order by failing to remove existing postings on the internet for which he is responsible, then, in addition to any other remedy that may be available, the plaintiff will have liberty to apply for an order requiring any person or company within the jurisdiction of the court who has notice of this order, to remove such postings from the part or parts of the internet within their control.

[126] The plaintiff will also have liberty to apply to expand or otherwise change the terms of this order on the ground that it has failed or is failing to achieve one or more of its purposes.

[127] I have not mentioned the many objectionable statements published by the plaintiff about the defendant, which remain on the internet by the plaintiff’s own admission. I was also not clear as to whether the plaintiff had yet removed all reference to Patrick Dennis Sullivan and his firm. I would strongly recommend that the plaintiff take immediate steps to remove all of these objectionable statements, if he has not already done so.

Summary of Orders

[128] In summary, I have awarded damages and injunctive relief to the plaintiff as follows:

a.	General damages for libel	$100,000.00
b.	Aggravated damages for libel	50,000.00
c.	Damages for breach of privacy	25,000.00
d.	Special damages	4,644.50
	Total	$179,644.50
e.	An injunction in the terms described above.

Costs

[129] Costs should follow the event. The plaintiff will have his costs at the usual scale, namely, Scale B.

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D. Halfyard, J.