Citation: Ward v. Clark

2000 BCSC 979

Date: 20000622

Docket No.:

96-1046

Registry: Victoria

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

ROBERT WARD

PLAINTIFF

AND:

GLEN CLARK

DEFENDANT

REASONS FOR JUDGMENT
OF THE
HONOURABLE MR. JUSTICE OWEN-FLOOD

 

Counsel for the Plaintiff

D.C. Christie
G. Rhone

Counsel for the Defendant

D. Crossin
S. Coristine

Date and Place of Hearing/Trial:

Victoria, B.C.
April 10, 11, 12, 13, 14 & May 8, 2000

A. INTRODUCTION

[1] The plaintiff, by profession, is a marine engineer and consultant. He is also in the business of ship brokering. At the material time, the defendant was a minister of the provincial Crown with responsibility for the British Columbia Ferry Corporation ("B.C. Ferries").

[2] The plaintiff sues claiming that the defendant defamed him by way of a malicious statement published on 7 February 1996 in The Vancouver Sun, a British Columbia daily paper. In a reference to B.C. Ferries and the construction of fast-ferries, the defendant was quoted as describing the plaintiff as a "disgruntled bidder on this project who is constantly feeding misinformation on this issue".

[3] The defendant concedes that he made that statement or a similar statement. However, he denies that his statement bore, or could be understood to bear, any defamatory meaning. Alternatively, the defendant pleads the defence of qualified privilege. He also argues the defence of justification (i.e. truth) as to the specific assertion that the plaintiff was a "disgruntled bidder on this project".

[4] The plaintiff seeks general damages as well as aggravated and punitive damages. The plaintiff also seeks special damages for loss of business to him, which he alleges arose from the claimed defamation.

[5] The defendant denies that the plaintiff suffered any damages of any nature as alleged, or at all. He further pleads that if the plaintiff did suffer damages then there are various factors that significantly reduce those damages.

B. ISSUES

[6] This case raises four issues:

1. Is the statement attributed to the defendant in the publication of 7 February 1996 defamatory in nature?

2. If the statement is defamatory, is the defendant protected by the defence of qualified privilege?

3. If the statement is defamatory, is the defendant partially protected by the defence of justification (i.e. truth)?

4. If the defendant is liable for the statement as defamatory, in what amount should damages be assessed in favour of the plaintiff?

C. FACTS

[7] On or about 6 February 1996 the defendant, in his then capacity as a government minister, emerged from the Legislature and, in accordance with the traditions of the parliamentary press gallery, was surrounded by numerous and vociferous reporters in a media scrum. One of the members of the media present was James Beatty, a reporter for The Vancouver Sun paper. Armed with his tape recorder, Beatty questioned the defendant and put to him criticisms of the fast-ferries project made by the plaintiff and others, including those contained in a recent article in Fair Play, a British shipping journal.

[8] In the resulting subject article, based in part on his interview with the defendant, Beatty wrote,

B.C.'s controversial fast-ferry project is heading into rough water, critics say, with design problems, long delays and at least $90 million in cost over-runs.

But Glen Clark, the minister in charge of B.C. Ferries, said Tuesday the charges are baseless and that the $70 million price tag for each of the three ships is fixed.

"The costs are not over our estimation. And the designs are working out well. Sure, we are a few months behind. But name a construction project, particularly one of this complexity, that doesn't take a few months longer."

While Clark and B.C. Ferries dispute some of the criticisms, they admit the 3 aluminum-hulled catamarans which were supposed to be travelling between Vancouver Island and the Mainland this year won't be ready for at least another year.

Design problems will mean the first ship won't be in the water until spring 1997 and the other two won't be ready until 1998, said Tom Ward, engineering vice-president of B.C. Ferries.

Clark and Ward maintain the $70 million price tag per vessel is fixed despite a recent article in Fairplay, a British shipping journal, which quotes unnamed sources who say the cost of each ship will rise to $100 million, especially if the price of aluminum alloy continues to rise.

...

But Bob Ward, a Sidney marine engineer and long time project critic, claims the fast-ferry plan is a disaster which uses inappropriate technology and underpowered engines for B.C. waters.

The ships will cost at least $100 million each, he predicted.

Clark dismissed Bob Ward as a "disgruntled bidder on this project who is constantly feeding misinformation on this issue."

Beatty testified that the quotation about Bob Ward being a "disgruntled bidder on this project who is constantly feeding misinformation on this issue" was what the defendant said to him in response to Beatty putting the criticisms of the fast-ferry project to the defendant.

[9] In the result, I find that the defendant said the words complained of by the plaintiff in an impromptu manner, and in the pressure of the moment entailed by a legislative media scrum, when confronted by Beatty with the plaintiff's criticisms of the fast-ferry project.

[10] The background to these events is important. The plaintiff is and has been for many years an international marine consultant and shipbroker. He is a member of the Canadian Institute of Marine Engineering and the American Society of Naval Architects and Marine Engineers. In his professional and business capacity during the period 1975 to 1997 he had had a number of international clients in the shipping business.

[11] For some time the plaintiff has had a special interest and expertise in high-speed ferries. He has long been an advocate of high-speed ferries. In the fall of 1990 he met Frank Rhodes, B.C. Ferries' chief executive officer, with a view to building replacement vessels for B.C. Ferries. In pursuit of this project the plaintiff produced a high-speed ferry design specifically for B.C. Ferries' northern routes. The ferry was to be built under the aegis of Westamarin, a well-known Scandanavian builder of high-speed ferries.

[12] In December 1991, Westamarin and the plaintiff made presentations to the provincial government and showed preliminary designs. However, the government decided against the fast-ferry concept and instead built the "superclass" ferries of the "Spirit" line which are still in use. The government decided to defer for a couple of years the question of whether to build high-speed ferries.

[13] In the fall of 1992, through one of his associates, the plaintiff was introduced to the defendant. They met on 19 October 1992. The defendant expressed enthusiasm for the plaintiff's suggested project, namely, building high-speed ferries for British Columbia with the work to be carried out in British Columbia. The defendant arranged for the plaintiff to again meet Frank Rhodes, still the head of B.C. Ferries, and Robert Williams, then head of the Crown Secretariat. That meeting never occurred, notwithstanding the best efforts of the plaintiff to bring it about.

[14] During the period 1992-1993, the plaintiff also secured a license from Westamarin to build its ferries in Canada. For this purpose, with associates, he incorporated Pacific Fast Ferries Ltd.

[15] In the meantime the plaintiff had been working assiduously, but unilaterally, on B.C. Ferries. By letter dated 23 September 1993 the plaintiff wrote to Frank Rhodes in furtherance of his efforts to persuade B.C. Ferries to do business with him. Amongst other things, the plaintiff stated:

... [Y]ou might like to brief your successor on the following serious gaffes, which I will know have to tackle head on -

1) Your Technical Department continues to operate like the Kremlin as it has done for a very long time. ...

2) Your Board of Directors is coming up as a puppet board. I don't understand why we were not given their addresses when we requested same last fall and again this summer and, I don't understand why they could not be interested in a presentation on Car Carrying Catamarans as we offered to make. And I certainly don't understand how they are all NDP party members, without any shipping background. What sort of farce is this? Better dismiss them all tomorrow and stop the charade. Or does one have to make a constitutional challenge? Or lay a complaint with the OmbudsWoman to get fair play? Boards of Crown Corporations should be "Non Partisan", as you well know Frank. And this government will fall flat on its face if it doesn't move soon to correct this gross "in-equity".

3) ...

4) Lack of serious interest in the proposals put forth by Pacific Fast Ferries for almost 2 years now. ... At least your staff should be making Requests for Proposals - ...

He concluded by writing,

... I think B.C.F.C. has become a moribund bureaucratic monster, ...

[16] By December 1993 it seemed to the plaintiff that his efforts, not surprisingly, had been in vain. At that time his principal Westamarin had heard that a rival company, International Catamaran Designs of Australia ("Incat Designs"), was making progress, unlike Westamarin, in its efforts to persuade B.C. Ferries to commit to its proposed fast-ferries.

[17] The plaintiff concluded that he was being deliberately pushed out of the process by reason of what he saw, rightly or wrongly, as Incat Designs having the inside track. He decided to counterattack through the press, with a view to bringing pressure to bear on the government so that the government and B.C. Ferries would have no choice but to bring him back into the process and consult with him.

[18] In an article published in The Vancouver Sun on 15 December 1993, written by the transportation reporter Alan Daniels, the plaintiff is cited as lamenting that B.C. Ferries has yet to accept or reject the proposals he and his company, Pacific Fast Ferries Ltd., had submitted. The article continues,

Ward said the corporation loses $12 million a year on routes between Port Hardy and Prince Rupert and Prince Rupert and Skidegate on the Queen Charlotte Islands.

He said the faster craft his company is proposing would cut travel time in half, enabling B.C. Ferries to increase frequency and reduce operating costs.

"Savings of upwards of $100 million over a 20-year period are possible on the (Port Hardy to Prince Rupert) route alone using these craft," Ward said.

...

"We can't get any decisions, so we have decided to go public," Ward said. "It's an attempt to galvanize them (B.C. Ferries) into action, and focus on the savings, which I don't think have been public to date."

[19] On or about 16 December 1993, the plaintiff and his company Pacific Fast Ferries Ltd. held a press conference so as to publicize their complaints against B.C. Ferries. The resulting publicity included an article by Malcolm Curtis in The Times Colonist of 17 December 1993, in which the plaintiff complained that for 2 years he had been attempting to supply B.C. Ferries with car carrying catamarans but in vain. The plaintiff was cited as saying that in the meantime the Crown corporation is "bleeding red ink".

[20] On 21 December 1993 B.C. Ferries, through its new chief executive officer Michael Martin, reacted by writing to Innovation A/S, the parent company of Westamarin which used the plaintiff as its agent and licensee in B.C. and on the West Coast. In that letter Michael Martin wrote,

I am writing to you at this time regarding the continuous pressure we as a Corporation are receiving from Pacific Fast Ferries, a company which I believe is operating as your agent in Canada.

Because it seems we are not responding to his demands to purchase and operate one of your high speed catamarans, the President of the company, Mr. Bob Ward, continues to berate the Corporation by correspondence and through the press. ...

...

I should add we have been approached by many high speed ship companies and they have been most understanding and displayed good business ethics.

We will continue to monitor the technology and will assess all high speed types of ships, including Westamarin but reserve the right to make the best business decision for the corporation without any form of coercion.

Michael Martin sent a copy of that letter to the defendant who was then the minister responsible for B.C. Ferries.

[21] In view of his lack of progress with B.C. Ferries, by facsimile dated 16 May 1994, the plaintiff suggested to his principal Westamarin that perhaps, in its best interest, it should consider firing him:

... I feel very strongly that unless I take legal action against what I consider to be an un-justified attack on my integrity and ability by the new C.E.O. at B.C.Ferries, neither yourselves nor I will even get asked to bid in future. And such a bid request is expected soon - ...

Therefore, I would appreciate if you could come back to me with some sort of formal dismissal, so I can start the legal action which would bring us back to the bidding table at B.C.Ferries. Suggest as follows:

"Owing to the lack of progress in your efforts to secure R.F.P.s (Request for Proposa]s (sic)),and secure any orders for our Westamarin range of passenger and vehicle carrying catamarans in your area;And the negative report from the President and C.E.O. of B.C. Ferries as to your conduct as our agent,we regret to advise we are terminating any and all understanding with you, to act on our behalf."

Signed--------etc

Or words to this effect in strong language. I appreciate your co-operation in this matter and look forward to resuming a more profitable and relationship (sic) soon.

[22] Shortly thereafter the managing director of Westamarin wrote to the plaintiff and, using almost all of the proposed language, terminated Westamarin's relationship with the plaintiff.

[23] Subsequently, in August 1994 B.C. Ferries sent out to some 26 ship builders and/or ship designers, not an invitation to tender to build fast catamaran ferries, but rather a request for qualifications to supply design services for such ferries. One of the companies to which the request for qualifications was sent was Westamarin. No such request was sent either to the plaintiff or his company, Pacific Fast Ferries. Shortly thereafter the "Fast Cat" ferry contract was awarded to Incat Designs.

[24] Around the same time, the plaintiff decided to continue working in an effort to restore his reputation, and that of his company, from the injury he felt he had suffered by way of Michael Martin's letter of 21 December 1993. Further, on 28 December 1994 the plaintiff launched a defamation suit against B.C. Ferries and Michael Martin. His statement of claim reads,

9. By reason of [the B.C. Ferries' letter to Westamarin dated 21 December 1993], the plaintiffs and each of them have been greatly injured in their personal and business reputations. ...

10. The plaintiffs have lost potential sales in Canada between $100,000,000 and $200,000,000, upon which their net profit would have been between $8,000,000 and $16,000,000 (Canadian)...

11. The plaintiff, C. Robert Ward, and the corporate plaintiff, were further damaged by the loss of respect from the Board of Directors of the corporate plaintiff, and a loss of financial support from a major investor for Pacific Fast Ferries Ltd., who lost confidence in the validity of the company because of the letter.

[25] In addition, in numerous interviews and articles during late 1994 to early 1995 the plaintiff launched various criticisms of B.C. Ferries' plan for fast-ferry service between Nanaimo and Horseshoe Bay. His allegations included unnecessary operating and capital costs, unrealistic travel times, unwarranted safety risks, engine problems owing to debris plugging, potential cracking and weakening of the aluminium crafts, and undesirable environmental impacts from serious wash and wake, noxious emissions and engine noise.

[26] In a particular article appearing in the Nanaimo Daily Free Press on 20 April 1995, the plaintiff suggested that an accident such as the then recent St. Malo ferry disaster in the English Channel, which resulted in injuries to 50 passengers, could be repeated in British Columbia if B.C. Ferries insisted on going ahead with the proposed aluminium-hulled fast-ferries.

[27] In a subsequent interview published in the April 28 - May 5, 1995 edition of The Georgia Strait, a weekly magazine published in Vancouver, the plaintiff criticized the provincial government for hiring Sam Bawlf as a consultant on the grounds of alleged conflict of interest on his part as Bawlf's company had held exclusive Canadian rights to Incat Design's fast-ferry technology.

[28] Thereafter, on 22 June 1995 the defendant made a statement in the Legislature asserting that the proposed 33,500 h.p. engines for the new fast-ferries would, fully loaded, be capable of carrying 1,000 passengers and 250 cars at 37 knots per hour. He further stated that the ferries would come in at a scheduled cost of $70 million each. The plaintiff believed that this information was incorrect in all aspects. Accordingly, he briefed an opposition Member of the Legislative Assembly.

[29] On or about 6-7 February 1996 the events that form the basis of this lawsuit took place. Subsequently, the defendant was successful in his campaign to become leader of the governing New Democratic Party. On 28 March 1996 the plaintiff had an article of his published in The Vancouver Sun alongside which the paper reiterated the defendant's alleged defamatory comment. In May 1996, in the general election, the defendant succeeded in being confirmed as the new premier of British Columbia.

[30] In testifying at the 1997 trial before Millward J. in his lawsuit against B.C. Ferries and Michael Martin, the plaintiff said that the effect of the letter from B.C. Ferries to Westamarin was that Westamarin fired him as its agent in the spring of 1994. He said the letter resulted in the annihilation of him and his business in the commercial world. Notwithstanding that, the plaintiff stated that he continued to try to do business with B.C. Ferries and the provincial government, and that he had endeavoured to rebuild his reputation and shipping career.

[31] The plaintiff's case against B.C. Ferries and Michael Martin was dismissed. The dismissal of the plaintiff's libel suit by Millward J. on 18 April 1997 received considerable publicity in the media, including an article in The Times Colonist paper in Victoria on 20 April 1997 under the headline "Court Dismisses Engineer's Libel Suit Against B.C. Ferry Chief Executive".

[32] With this background in mind I make the following findings.

[33] I accept that, prior to the subject media scrum, the defendant was faced with the plaintiff whom he knew had advanced fast-ferries proposals to the government and B.C. Ferries and had used high-pressure tactics in a failed attempt to succeed with these proposals. I accept that the defendant knew the plaintiff to be a fast-ferry proponent who had metamorphosed into a persistent, aggressive and outspoken critic playing to the media. I accept that the defendant had acted reasonably in seeking guidance from his own staff and consultants, as well as B.C. Ferries' officials, and relied upon what they told him, namely, that there was no foundation to any of the criticisms made by the plaintiff. I also accept that the defendant made the statement in question while honestly believing what he was saying to be true. I accept that the defendant used the term "bidder" in reference to the plaintiff's previous proposals.

[34] I find that in making the statement it was the defendant's dominant intention to dismiss the plaintiff's criticisms on the grounds that the plaintiff lacked the objectivity necessary to make sound expert criticisms of the fast-ferries project. In doing so, I reject the plaintiff's contention that the defendant's statement was motivated by malice. At the same time I note the obvious, namely, that in making the statement the defendant was not dealing with the substance of the plaintiff's criticisms.

[35] I observe that the defendant did concede in evidence that, in hindsight, it was his view that the plaintiff had not been treated properly by B.C. Ferries. The plaintiff had simply been "strung along". His proposals and concerns were never either properly dealt with or answered.

[36] I further observe that, in his testimony, the defendant took the position that much of the plaintiff's criticisms, like the curate's egg, had good and bad aspects. The defendant conceded that the fast-ferry project has proved to be significantly late and over budget. He agreed that the Nanaimo to Horseshoe Bay route was not the best route for fast-ferry service. He further agreed that some of the conclusions reached by the office of the Auditor General in its review of the fast-ferry project dated October 1999 are valid. However, the defendant rejected the plaintiff's criticisms regarding safety as alarmist. Beyond these points the defendant stated he did not know whether the criticisms made by the plaintiff have in fact turned out to be true.

[37] I find that the conclusions of the Auditor General are consistent with the main points made by the plaintiff in his technical criticisms of the fast-ferries project. I accept that everything the plaintiff said in criticizing the construction delays and cost over-runs for the fast-ferries built under the auspices of Incat Designs has, by and large, proved to be correct. In addition, I accept that the plaintiff was correct in stating that fast-ferry travel time and carrying capacity expectations were unrealistic. By contrast, I do not accept that the safety concerns raised by the plaintiff have materialized. With respect to the remaining technical criticisms of the plaintiff it has not been contended that they were inaccurate.

[38] Finally, I accept that the defendant's words that the plaintiff is a "disgruntled bidder on this project who is constantly feeding misinformation on this issue" have had a negative impact on the plaintiff's reputation.

D. ISSUE I - Was the statement made by the defendant in the publication of 7 February 1996 defamatory in nature?

[39] The plaintiff urges that the words complained of in the subject article, namely, that he was a "disgruntled bidder on this project who is constantly feeding misinformation on this issue", are defamatory.

[40] I accept the law as proffered by Gatley on Libel and Slander, 9th ed. (London: Street & Maxwell, 1998) where, at pp. 80-82, paras. 3.13 - 3.15, the learned authors wrote,

Reasonable understanding. If words conveyed a defamatory imputation to those whom they were published, but would not have done so to the hypothetical reasonable person in that position, they are not defamatory. ...

Natural and ordinary meaning. ... Words are normally construed in their natural and ordinary meaning, i.e. in the meaning in which reasonable people of ordinary intelligence, with the ordinary person's general knowledge and experience of wordly affairs, would be likely to understand them. The question is what would the words convey to the mind of the ordinary, reasonable, fair-minded reader? ...

Ordinary meaning and implications. "What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief and a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning". "... The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge, and not fettered by any strict legal rules of construction would draw from the words". ...

[41] I am of the view, and so find, that the defendant's words in their ordinary meaning and in context were defamatory. An ordinary person would have reasonably understood them to mean that the plaintiff, out of frustration at having his business solicitations rejected, was deliberately feeding the media with false information on the fast-ferries project. In essence, the statement tended to lower the plaintiff in the estimation of others by imputing dishonourable conduct to him.

[42] I hasten to add that I am also of the view that the defendant must bear the responsibility for the defamatory consequences flowing from publication by The Vancouver Sun. In his statement of claim the plaintiff pled that the defamatory statement made by the defendant was published on 7 February 1996 in The Vancouver Sun. The evidence has shown that the statement was made to a reporter conducting an interview for The Vancouver Sun, the same reporter who authored the article published.

[43] In considering this aspect, I note the dicta enunciated by the learned authors in Gatley on Libel and Slander, supra at p. 154, para. 6.30:

(b) Liability of the original publisher

General principle. Where a defendant's defamatory statement is voluntarily republished by the person to whom he published it or by some other person the question arises whether the defendant is liable for the damage caused by that further publication. In such a case the plaintiff may have a choice: he may (a) sue the defendant both for the original publication and for the re-publication as two separate causes of action, or (b) sue the defendant in respect of the original publication only, but seek to recover as a consequence of that original publication the damage which he has suffered by reason of its repetition, so long as such damage is not too remote.

[44] In the case at bar, the plaintiff has chosen Gatley's option (b), namely, to sue the defendant in respect of the original publication and seek damages by reason of its repetition. I am of the view that this comes as no surprise to the defendant and that such damage is not too remote.

[45] I agree with the principle enunciated in Odgers on Libel and Slander at p. 141:

Thus, it (a request to print or publish) may be inferred from the defendant's conduct in sending his manuscript to the editor of a magazine, or making a statement to the reporter of a newspaper, with the knowledge that they will be sure to publish it, and without any effort to restrain their so doing.

[46] I also note the decision of the Court of Appeal for Ontario in Hay v. Bingham (1905), 11 O.L.R. 148 at 153, where the court ruled,

There was evidence from which the jury might infer that the defendant knew that he was speaking to a reporter and speaking for publication, and that he authorized what he said to be published in a newspaper. It was not necessary that there should have been an express request to publish: Odgers on Libel and Slander, 4th ed. p.161.

[47] I find that the principles enunciated in those quotations are apposite to the conduct of the defendant at bar.

E. ISSUE II - If the statement is defamatory, is the defendant protected by the defence of qualified privilege?

[48] The defendant raises the defence of qualified privilege. The law of qualified privilege recognizes there are certain limited occasions, justified on grounds of public policy and common convenience, on which a person may publish untrue, defamatory statements about another with impunity (Moises v. Canadian Newspaper Co. (1996), 76 B.C.A.C. 263 at 267-268). Williams J.A., as he then was, stated for the B.C. Court of Appeal in Moises at p. 268, that such occasions may arise where

the publisher is able to establish that he or she had an interest or duty to communicate certain information and the recipient had a corresponding duty or interest to receive the information.

[49] I am of the view that a reciprocal duty and interest has been established in the case at bar. Prior to February 1996, the plaintiff had subjected the fast-ferry project to a constant onslaught of criticism. He chose to make his criticisms to the general public through the mainstream press. Accordingly, British Columbians had an interest in hearing a response to the concerns raised over fast-ferry safety, environmental impacts, projected costs, quality of service, and such like. The defendant was the minister responsible for B.C. Ferries. He was being queried for a response by a reporter for The Vancouver Sun, a paper widely circulated in the province. In these circumstances I find that the defendant had an interest in, and a duty of, providing the public with a response to the plaintiff's criticisms.

[50] However, the analysis does not end there. In Moises v. Canadian Newspaper Co., supra at p. 268, the Court of Appeal wrote,

The qualified privilege that might otherwise attach to an occasion may be defeated by actual or express malice or where the limits of the duty or interest have been exceeded.

[51] The plaintiff argues that the evidence clearly establishes malice on the defendant's part. I do not agree. As I have already stated, I accept that the defendant made the defamatory statement while believing what he was saying to be true. I further accept that the defendant was not reckless as to the truth. Rather, the evidence shows that he sought and reasonably relied upon the advice of his advisors and B.C. Ferries officials that the plaintiff's criticisms were baseless. In addition, I have found that in making the defamatory statement, which it cannot be forgotten was in the context of a media scrum, the defendant's dominant intention was to express his view that he was not concerned with the plaintiff's criticisms as the plaintiff lacked the objectivity needed to make valid technical criticisms of the fast-ferries project. His primary intention was not political gain and there is no evidence that he was motivated by spite. (Reynolds v. Times Newspapers Ltd. (1999), 3 W.L.R. 1010 at 1016.)

[52] The plaintiff also argues that the defendant has exceeded the limits of qualified privilege by virtue of having made the untrue, defamatory statement to a newspaper reporter that was then "published to the world" so to speak. With respect, I cannot accede to this submission either. The question is not whether the defendant authorized publication to the public generally, but whether the defendant authorized a publication that was unduly wide (Douglas v. Tucker (1952), 1 S.C.R. 275 at 288; Moises v. Canadian Newspaper Co., supra at 269). That is not the case at bar, where the plaintiff has repeatedly resorted to the press to voice his criticisms, including The Vancouver Sun.

[53] The situation here is analogous to that before the House of Lords in Adam v. Ward, [1917] A.C. 309. In that case an allegation had been published to the world. It was held that in refuting it the defendant was entitled to address the same audience as had been chosen by the maker of the charge. In the case before me, all the defendant did was exercise his right, and I find duty as the minister responsible, to seek reply to the same audience. That can hardly be said to constitute a publication that is unduly wide.

[54] However, I am of the view, and so find, that the defendant has exceeded the limits of the qualified privilege defence by virtue of the defamatory statement not being germane and reasonably appropriate to the occasion. In that regard I follow the dicta of Cartwright J. in Douglas v. Tucker, supra at 286,

... In my view the appellant was entitled to reply to such a charge and his reply would be protected by qualified privilege, but I think it clear that this protection would be lost if in making his reply the appellant went beyond the matters which were reasonably germane to the charge which had been brought against him. It is for the judge alone to rule as a matter of law not only whether the occasion is privileged but also whether the defendant has published something beyond what was germane and reasonably appropriate to the occasion so that the privilege does not extend thereto.

[55] I am persuaded that the occasion would have been within the qualified privilege defence had the defendant said words to the effect that he understood from his advisors that the criticisms levelled by Mr. Ward were untrue. This would be so notwithstanding that with hindsight the criticisms have proved to be generally valid. However, that is not at all what the defendant said. He said something that was disproportionate, something that was much more than that, something that brought him outside the privilege, namely, that the plaintiff was a disgruntled bidder in the sense of having sought and failed to obtain business and, because of this, was constantly feeding misinformation on the fast-ferry project.

[56] By so doing the defendant brought himself within the ambit of the law set out in Whittaker v. Huntington (1980), 15 C.C.L.T. 19 (B.C.S.C.). In that case Huntington, a Member of Parliament, was sued for defamation because of remarks he made in reply to the plaintiff, a union official, criticising Huntington in a press release for conducting "a despicable witchhunt, reminiscent of the McCarthy era". In his reply to this slur, Huntington asserted his strong support for "democratic freedom... in this country". As Verchere J. wrote at p.30,

... I cannot understand, however, why he was then impelled to go on much further and assert that Whitaker... wished just as strongly to destroy that same democractic freedom. And I find inevitable therefore, the conclusion that in saying that, he went beyond the bounds of reasonable response and entered upon the area of gratuitous insult and defamation.

Accordingly, I have to find that in saying those words Mr. Huntington stepped beyond the "legitimate bounds of refutation", ... and that having done so, he destroyed the occasion of privilege which might otherwise have attached itself to the words he spoke...

[57] In arriving at this conclusion I have borne in mind the dicta of various appellate courts that in judging the statement of one who is responding to a previous charge a trial court should not weigh the question of excessive language on nice scales (e.g. Douglas v. Tucker, supra at 286; Adams v. Ward, supra at 339; Moises v. Canadian Newspaper Co., supra at 270). I note, however, that this consideration was insufficient to deter the Supreme Court of Canada in Douglas v. Tucker, supra at 286-287, where the defendant politician was held to have spoken in excessive terms.

[58] I must also add that I do not see any basis in public policy or common convenience that would be served by attaching qualified privilege to this occasion. Absent such grounds, the law does not allow the defence of qualified privilege to protect politicians who, in responding to particular criticisms on matters of public interest, dismiss the critic or critics by way of an unqualified personal attack that does not focus on the merits of the criticism, namely, an ad hominem fallacy response. To afford the protection of such occasions under the defence of qualified privilege would unjustifiably undermine the delicate common law balance between the defendant's freedom of expression and the plaintiff's reputational interest. Furthermore, it would intrude upon the plaintiff's freedom of expression as a value embodied in the Canadian Charter of Rights and Freedoms and protected for the purpose of facilitating the pursuit of truth, to say nothing of participation in political life. (Moises v. Canadian Newspaper Co., supra at 270 and 273-274.)

[59] Finally, in deciding as I have I bear in mind the recent decision of the House of Lords in Reynolds v. Times Newspapers Ltd., supra. I find that Lord Nicholls' statement of the common law, at p. 1027, is consistent with the principles enunciated by the courts in Canada and, in particular, in Douglas v. Tucker, supra, Jones v. Bennett (1969), S.C.R. 277, Moises v. Canadian Newspaper Co., supra, and Whittaker v. Huntington, supra.

[60] In the result, for the reasons given, I find that the statement made by the defendant went beyond that which is protected by qualified privilege. In effect it was an abusive statement, charging the plaintiff with deliberately spreading misinformation about the fast-ferry project because he was disgruntled about his failure to obtain fast-ferry business. The claim of qualified privilege fails.

F. ISSUE III - If the statement is defamatory, is the defendant partially protected by the defence of justification (i.e. truth)?

[61] The defendant submits that the defamatory statement can be broken down into two imputations: (1) that the plaintiff was a "disgruntled bidder on this project", and (2) that the plaintiff was "constantly feeding misinformation on this issue". On that premise, the defendant pleads that the gist of the words a "disgruntled bidder on this project" was true. A reasonable and ordinary person, he says, would have taken "bidder" to mean that the plaintiff had advanced proposals to or sought work from B.C. Ferries, something that the evidence plainly shows. Hence, the defendant argues that he was justified in describing the plaintiff as a "disgruntled bidder on this project". Consequently, he is not liable for any damages flowing from this allegation.

[62] I agree with the defendant that a reasonable and ordinary person would have understood the phrase "disgruntled bidder on this project" in a broad sense, that is, to mean that the plaintiff had been unsuccessful in his attempts to secure business with respect to the fast-ferries project. I further agree that the evidence shows this to be true. However, I cannot accept the defendant's premise, namely, that the defamatory statement can be partitioned into two separate factual assertions.

[63] As I have already stated, I am of the view that an ordinary person would have reasonably understood the defendant's statement as imputing that the plaintiff was, on an ongoing basis, feeding people with false information on the fast-ferries project because he was seeking revenge for having his business solicitations refused. The sting in this imputation flows from the suggestion that the plaintiff is an unreliable source of information on fast-ferries who continues to actively dispense such information being motivated by an improper purpose. The defendant has not asserted the defence of truth to this imputation. Accordingly, that defence affords him no protection from liability.

G. ISSUE IV - If the defendant is liable for the statement as defamatory, in what amount should damages be assessed in favour of the plaintiff?

[64] The plaintiff seeks damages in the form of general, aggravated, punitive and special damages.

(i) General Damages

[65] The defamation case at bar is one of slander as opposed to libel. However, as I have already held, a request or authorization for publication of the statement can be inferred from the defendant's conduct in all the circumstances. Absent a legal defence, the defendant is thus liable for any damages flowing from publication of his statement by The Vancouver Sun.

[66] In libel cases general damages are presumed. However, in cases of slander general damages are presumed only in certain circumstances, including where the words are calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him or her at the time of publication. (Gatley on Libel and Slander, supra at p. 69.)

[67] In that regard I am satisfied that the reasonable and ordinary meaning of the words, in the context in which they were spoken, is such that they were calculated to disparage the plaintiff in his profession, trade and business as a marine engineer and consultant, as well as a ship's broker. The criticisms of the fast-ferry project made by the plaintiff publicly were, in large part, concerned with matters of marine engineering and design. For his part, in replying and alleging that the plaintiff was a "... bidder on this project..." the defendant highlighted a fact directly related to the plaintiff's activities as a marine consultant and shipbroker (see R.J. Miller & Associates Ltd. v. Saunders, Q.L. 1981 B.C.J. No. 338 (S.C.) at 3). Indeed, the defendant's intention was to dismiss the plaintiff as an unreliable source of expert criticism. I find that general damages are to be presumed.

[68] With respect to the quantum of general damages, in Norman v. Corporation of City of New Westminster (25 February 1999), Vancouver Reg. No. C952334 (B.C.S.C.) at 26-27, Smith J., following Walker v. CFTO Ltd. (1987), 59 O.R. (2d) 104 C.A., held,

... [The defamed person] is entitled to general damages to compensate for the lessening of the esteem in which he is held in the eyes of the community because of the defamation and for the injury caused to his feelings.

Thereafter, Smith J. gave consideration to

[the plaintiff's] actions and his position and standing in the community, the nature of the libel, the mode and extent of its publication, the effect of the libel on him and on his standing in the community as it can be ascertained from the evidence of those witnesses who know him, and the conduct of the defendant including the failure to apologise and the continuing assertion of the truth of the libellous statements, ...

[69] Applying those criteria, in regard to the plaintiff's actions I observe that, as the plaintiff conceded, he was criticising and berating the government and B.C. Ferries for the purpose of pressuring them into giving him business. Hence, to some extent the plaintiff was the genesis of the whole controversy that resulted in the improper defamation of him.

[70] With respect to the plaintiff's position and his standing in the community, in assessing damages I bear in mind that the plaintiff at the time of the publication on 7 February 1996 already had a not untarnished reputation. This is apparent from circumstances surrounding the failed defamation suit before Millward J. that had been initiated in 1994. In the result, I am satisfied that prior to February 1996 the plaintiff and his company, Pacific Fast Ferries Ltd., had gone into a tailspin from a business promotion point of view.

[71] By its nature, the defamation was serious. It is serious for a professional person to spread misinformation for improper purposes in the area of his or her expertise. However, that is what was alleged by the defendant. The gravity of the situation is accentuated by the fact that, by and large, what the plaintiff said, except for the safety issue, has proven to be accurate.

[72] Nothing turns on the mode and extent of publication. The defendant simply used the same media as the plaintiff had before him.

[73] With respect to the effect of the defamation on the plaintiff, I am satisfied that notwithstanding the plaintiff's not unblemished standing in the marine industry, he had endeavoured to re-build his business. He had made progress in that regard when he was stung by the slander at bar published on 7 February 1996. I find that this was a further obstacle to his business plans. Whatever status the plaintiff had left was diminished by the defendant's defamation of him.

[74] As for the defendant's conduct, the plaintiff's counsel points out that at best there has only been a half-hearted apology from the defendant. There has been neither a retraction nor a full apology. The defendant to this day insists that he does not really know whether what the plaintiff said by way of criticism was basically true or false, but he does concede that some of it was true. At the time of the statement the defendant believed what he said to be true because he accepted at face value the statements of the officials at B.C. Ferries and his other advisors. The defendant did not look, or enquire into, the basis on which those officials and advisors took the positions they did. He was therefore in no position to say anything more than that he had been advised that the criticisms of the plaintiff were untrue. He certainly was not in a position to say, as he did, that the plaintiff was deliberately disseminating false information.

[75] Having considered these various factors as well as the other case law provided by counsel, including the words of Wood J.A. in Derrickson v. Tomat (1992), 88 D.L.R. (4th) 401, I award the plaintiff $150,000 general damages.

(ii) Aggravated Damages

[76] The law on aggravated damages in defamation was set out in Hill v. Church of Scientology (1995), 2 S.C.R. 1130. At para. 188, Cory J. for the court wrote,

The nature of these damages was aptly described by Robins J.A. in Walker v. CFTO Ltd., supra, in these words at p. 111:

Where the defendant is guilty of insulting, high-handed, spiteful, malicious or oppressive conduct which increases the mental distress - the humiliation, indignation, anxiety, grief, fear and the like - suffered by the plaintiff as a result of being defamed, the plaintiff may be entitled to what has come to be known as "aggravated damages".

Cory J. went on to note, at para. 190,

If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff either by spreading further afield the damage to the reputation of the plaintiff or by increasing the mental distress and humiliation of the plaintiff.

[77] In all of the circumstances, and in particular the fact that the defendant made the statement in a media scrum in which he was responding to persistent attacks made by the plaintiff through the press, it cannot be said that the plaintiff has established that the defendant was guilty of insulting, high-handed, spiteful, malicious or oppressive conduct. While what the defendant said was slanderous, he said it on the spur of the moment, relying on the information given to him by B.C. Ferries and his advisors.

[78] In the result, I decline to award aggravated damages.

(iii) Punitive (Exemplary) Damages

[79] For the same reasons that I declined to award aggravated damages, I likewise decline to award punitive or exemplary damages.

[80] In doing so, I am not unmindful of the plaintiff's argument based on the Nova Scotia Court of Appeal decision in Hiltz & Seamone v. Nova Scotia (Attorney General), Q.L. 1999 N.S.J. No. 47 (C.A.). In that case the Nova Scotia Attorney General was sued for libel by reason of a letter written by a professional engineer employed by the Nova Scotia Department of Environment that was critical of the plaintiffs' engineering designs for a sewage treatment plant expansion.

[81] The critical letter was put in the departmental library, along with a critical report from a consulting firm hired by the Department to review the plaintiffs' design. The report and the letter in question became available to the public. In the result, the plaintiffs' business declined after publication of the letter. The trial judge awarded general damages of $200,000 to the plaintiff, and punitive damages of $100,000.

[82] Both sides appealed. Pugsley J.A., writing for the court at para. 170, enunciated:

Justice Stewart, in the course of ordering general damages of Two Hundred Thousand Dollars ($200,000) against both appellants, and One Hundred Thousand Dollars ($100,000) punitive damages, against the Crown appellant, stated in part:

Professional organizations survive on the confidence and trust generated in those that deal with them and the integrity and the character of the work they provide to their clients. Defamatory statements, such as in the present case, strike at the foundation of the reputation and erode the confidence of the public in the defamed party, no less when it's a corporation than when it's an individual.

At paras. 177-179, Pugsley J.A. went on to note,

Justice Stewart was quite properly influenced by the significant role played by the Crown in awarding directly, as well as influencing indirectly, a large percentage of engineering work developed in this province.

She said:

I have also considered the plaintiffs' submission that the Crown sets the system for the selection for consulting engineers retained by municipalities throughout the province; dominates the steering committees; controls the funding made available to municipalities for civil work; is the regulatory authority; has the financial muscle to ensure that any consultant it does not like is prevented from pursuing his or her professional career and by an award of punitive damages against it, the Crown will be deterred from destroying the reputation and career of other engineering professionals of the province who are to a large degree dependent for their livelihood on being treated in good faith.

I conclude that it has not been established that Justice Stewart misdirected herself on any applicable principle of law or that the exercise of her discretion in awarding punitive damages was so clearly wrong as to amount to an injustice.

[83] Counsel for the plaintiff urges that, by the same token, I should award the plaintiff punitive damages at bar. I have not been so persuaded. I am of the view that the facts at bar are to be distinguished from those in the Hiltz v. Seamone case, supra. I so hold for two primary reasons. First, the defendant at bar unlike the defendant in Hiltz v. Seamone was simply responding, although excessively as I have found, to criticisms in the press on him, his advisors and government, which had been initiated by the plaintiff. Second, it is true that on the west coast the B.C. government, through B.C. Ferries, is, for all intents and purposes, the only significant ferry authority and thus controls virtually all the business in B.C. Nevertheless, even though B.C. was a major part of the plaintiffs' business, the plaintiff also functioned in the shipping community, both nationally and internationally.

(iv) Special Damages

[84] The plaintiff argues for special damages in the form of a $150,000 lump sum award compensating for the loss of business the plaintiff would have had, had it not been for the defamation perpetrated by the defendant.

[85] I decline to award special damages. Special damages must be pleaded and proved (Botiuk v. Toronto Free Press Publications (1995), 3 S.C.R. 3 at 21). At bar the plaintiff has neither sufficiently pleaded special damages nor adequately adduced evidence in support of such a claim.

(v) Summary

[86] In conclusion, the plaintiff shall have general damages in the amount of $150,000, plus pre-judgment interest as and from the date of publication.

[87] The plaintiff shall have his costs at Scale 3 as against the defendant.

"D.D. Owen-Flood, J."
The Honourable Mr. Justice Owen-Flood