[1] This is a defamation action. Claims against Pacific Press, Donald Hauka (a reporter), and Michael Smith (a columnist), both employees of Pacific Press which publishes The Province newspaper, have been settled. Reference to those parties in these Reasons is necessary to provide a factual matrix in which the alleged defamation and purported apology of the defendant Ben Meisner of radio station CKPG Ltd. must be considered.

[2] In late 1997 pursuant to the provisions of the Recall and Initiative Act, R.S.B.C. 1996, c. 398, a petition was filed with the Electoral Commission seeking the recall of the plaintiff, Paul Ramsey (Ramsey). At that time he was the member of the Legislative Assembly for Prince George North. Ramsey has been a resident of the Prince George area since 1975. Until October of 1991 he was an English instructor at a local college. That year he was persuaded to run for politics. He was elected to the legislature and has served more recently in various cabinet posts. He is currently on an unpaid leave of absence from his college. Ramsey and his family have an established relationship within the community of Prince George.

[3] The riding in which Ramsey was elected is known as a swing riding in that Ramsey's majority in the 1991 and 1996 elections were 800 and 900 votes respectively out of a total electorate of some 22,000 voters.

[4] The defendant Ben Meisner (Meisner) is a Prince George businessman who in exchange for free advertising conducts an open-line radio talk show on the defendant's radio station CKPG Ltd. (CKPG). He has done this since 1974. In 1997 that show occurred after 9:05 a.m. of each weekday for approximately one hour.

[5] Over the years Meisner has voiced his disagreements with Ramsey and the Government of which Ramsey has been a Minister on a plethora of issues. With the rare exception of a Government policy over the flooding of a lake, these two have been at political odds. Meisner, through the medium of his broadcast, has been a spur under Ramsey's political saddle. Ramsey, while lacking the Meisner broadcast forum, has declined opportunities to appear on Meisner's talk show.

[6] In 1997 Meisner's broadcast audience, according to Board of Broadcast Measurements, reached an audience of approximately 4,000 listeners. An undefined proportion of these listeners would be within Ramsey's electoral constituency.

[7] Meisner's broadcast consisted of a pre-recorded opening editorial followed by telephone calls from listeners to which he would respond. Occasionally in the second portion of the show a guest would attend.

[8] Interspersed throughout the program the radio station would broadcast advertisements. Meisner would not be aware nor have any say in which advertisements would be broadcast or when.

[9] The recall campaign in Ramsey's constituency generated a high level of public interest. Although the legislation provides a mechanism to recall individual members of the legislative assembly, the community of Prince George and in particular Ramsey's electoral constituency was divided on whether the recall campaign was, in essence, directed towards a recall of Ramsey based upon his performance as an MLA or a method by which those dissatisfied with the government of the day could "send a message" to that government.

[10] There was national and provincial wide interest in this recall campaign as well as in recall campaigns occurring in two other constituencies in the province. These were the first such recall petitions to have been filed. The Province of British Columbia was unique in having such legislation.

[11] It is no understatement to say that tensions ran high within the constituency as the debate raged as to the purpose of the legislation, quite apart from discussions of the merits of Ramsey's performance as an MLA.

[12] Despite the clear wording of the legislation, the debate even included discussions regarding who should be permitted to sign the petition for recall. Some of those in the constituency espoused a view that only those who had voted in the previous election should be permitted to participate while others held views consistent with the legislation itself, which permitted all registered voters to participate. In the course of the recall campaign and in opposition to it, Ramsey and his assistants conducted door to door canvasses. In doing so they became aware of the division about the approach to recall that existed within the constituency.

[13] As testified to by Ramsey and Ms. Woodworth, Ramsey's constituency assistant during the course of canvassing, a constituent informed Ramsey of his views in words similar to those found in Exhibit 1, Tab 3.

[14] It is against this backdrop that Mr. Donald Hauka (Hauka), a reporter with the Vancouver Province newspaper, came to Prince George to interview Ramsey on December 12, 1997.

[15] That interview lasted some 30 to 40 minutes and was recorded. Discussed during the interview was the application of the theory of recall to what was in fact being practised in the Prince George recall campaign. At one point Hauka and Ramsey had the following exchange as recorded on Exhibit 14:

I shall refer to this quotation as the La-Z-Boy quote.

[16] Armed with a tape recording of this interview, Hauka then prepared a story which was published on the front page of the The Province newspaper's Sunday, December 14 edition in which he attributed the following comments to Ramsey:

[17] Hauka should have listened more carefully to his tape recordings, from which it is clear that Ramsey was not expressing his own opinions on the proclivities of the Prince George voters but rather was referring to a comment he had heard from a constituent during the course of the recall campaign.

[18] That La-Z-Boy quotation was repeated in the same edition of The Province by the columnist Michael Smith (Smith) who, it would seem, either did not listen carefully enough to the tape or relied upon the reportage of Hauka. Smith, in writing his "spin-o-meter" column at page A6 of the Sunday edition, produced the following:

-Paul Ramsey on people who didn't vote in the 1996 election now trying to recall him.

WHAT IT REALLY MEANS

This is an arrogant, thoughtless remark from a politician who should know better. For a guy facing a recall petition, characterizating your constituents as beer-swilling couch potatoes is really, really dumb.

DID THE SPIN WORK?

Ramsey's comment won't ingratiate him with the undecided voters in his riding. Bad move, Paul.

[19] The Sunday edition of the Province newspaper was delivered to Prince George in the early afternoon. Meisner purchased a copy of it. Ramsey also learned of its contents in the early afternoon.

[20] Ramsey was immediately concerned as to the effect of the attribution of the La-Z-Boy quote to himself in terms of the effects on the recall campaign and the long term effect upon him as an M.L.A. and resident of the Prince George area.

[21] He contacted the city desk editor of The Province newspaper and expressed his annoyance at the article.

[22] As a consequence of this and other discussions with The Province staff including Smith on Monday, December 15^th the paper published a form of correction:

[23] The Monday edition of The Province newspaper does not usually reach stands or subscribers in Prince George before noon. However, at 9:01 a.m. a government news clipping service faxed to Ramsey's office in Prince George a copy of the correction in a slightly different form than that published in the Vancouver area edition of the paper.

[24] In the meantime, Meisner decided to write an editorial on the subject. At trial, he testified that "he didn't know anything about the accuracy" of the article published in the Sunday edition, but felt that because the reference to the Prince George voters was in quotation marks that it could be "taken more seriously".

[25] Meisner was preparing to leave on a trip. His broadcast on Monday, December 15^th was to be his last for some time.

[26] Meisner says that he tried to place a call to Ramsey's home or office. He does not recall which. Meisner's evidence does little to lend any support to his assertion of efforts to contact Ramsey. On April 20^th he testified as follows:

Ramsey's telephone number at home is listed in the Prince George directory. I accept that Ramsey was at his home from 1:30 p.m. until he went to bed that evening. He received no call from the defendant nor was there any message recorded on his answering machine either at home or at his office. Meisner cannot recall the time he says he called and said further that he could not say that he heard an answering machine or, if he did, whether he said anything on it.

[27] I conclude from the equivocal evidence from the defendant and the positive recollection of Ramsey that there was no call from Meisner.

[28] On Sunday, Ramsey contacted the local paper and was assured the misattributed quotation would not be published. He did not contact the defendant.

[29] Hauka testified that although he could have been contacted by calling The Province's city desk or his own direct line he received no calls or messages from Meisner either on the 14^th or 15^th of December. Hauka testified he did not work on the 14^th but returned to work by noon of Monday, December 15^th.

[30] Meisner proceeded to write his editorial and shortly after 9:00 a.m. on the 15^th of December, 1997, broadcast the following:

[31] The editorial was heard by Ramsey and others at his campaign office. An assistant, Mrs. Kidd, contacted the radio station about The Province's correction. Mrs. Kidd called the station's news director, Mike Woodworth, saying "You guys got some facts wrong", only to be told that the station had an emergency on the open-line show and that Mr. Woodworth could not talk. Mrs. Kidd continued to listen to the Meisner broadcast and when it was apparent to her that Meisner was not changing the tenor of his comments about Ramsey and the misattributed quotation she called again and referred to the correction published by The Province that morning. She then faxed to Mr. Woodworth a copy of The Province's correction.

[32] At some point during the program Meisner was given a copy of the fax sent by Mrs. Kidd and then made the following comment:

[33] By then there had been the equivalent of four pages of transcript broadcast and in response to the next caller the following occurred:

[34] The remainder of the broadcast included telephone calls dealing with matters unrelated to the La-Z-Boy quote, as well as comments on the part of Meisner criticizing Ramsey as a politician and the government's performance in general. The show ended at 10:00 a.m.

[35] Meisner also posted his editorial on a web-site associated with CKPG. As he did for every editorial, he prepared a disk containing the editorial and gave it to the receptionist/typist at the radio station, who posted it on the web-site under "Ben Meisner's Comment." The editorial of December 15, 1997 was posted to the web-site at 10:30 a.m., half an hour after the radio show ended. The editorial posted is identical to what was broadcast. The posted editorial was withdrawn from the web-site at 4:30 p.m. December 15^th.

[36] Meisner, following completion of his Monday, December 15^th show, did not leave on his trip but rather met with Woodworth. They agreed there would be an apology made to Ramsey.

[37] By late afternoon on December 15^th Ramsey had instructed his counsel, Mr. McGrady.

[38] At 4:49 p.m., December 15^th, Mr. McGrady wrote and sent by fax the following letter to Mr. Burnett:

We request that you take steps to ensure that neither the radio station nor Mr. Meisner republish any of these statements. We would also ask you to preserve the tape of the talk show in question, and to provide us with a copy as soon as possible. I also confirm that I will discuss with Mr. Ramsey this evening your suggestion as to a possible apology as a way of dealing with this matter. I am doubtful there will be any agreement but I do agree to raise it with him.

Yours truly,

"Leo McGrady"

[39] As well, Ramsey issued a press release announcing that he had launched legal action against both The Province and the radio station and various individuals.

[40] On the morning of December 16^th, Meisner published the following by both broadcasting it and posting it on the station's web-site:

To this point I can only assume that this is in fact what actually was said by Mr. Ramsey actually said. I have not received at any time from either he or his office a transcript informing me that the comments I had made were grossly incorrect. I have been forced to rely upon the comments being made by The Province newspaper, and other media in this province. Neither this radio station, CKPG, or the general manager, or myself were contacted to set the record straight. I might add, the moment we knew for a fact what had taken place, we set about not only to apologize, but also set the record straight. Here again I am relying on media for an account of what was said. And that is exactly how I erred in the first instance by accepting a media story as the truth.

[41] On December 16^th, Meisner gave an interview to the Prince George C.B.C. radio station in which he said the following:

[42] The Writ was issued on December 17^th and was served on December 23^rd.

[43] On the morning of December 19^th the general manager of the defendant radio station who took Meisner's place in his absence published the following by broadcasting it and having it posted to the station's web-site:

[44] The evidence of Ramsey is that he was upset by the attribution of the constituent's comments to himself for two reasons.

[45] The first is that it reflected poorly upon him because it could be perceived as an expression of his attitude as an M.L.A. towards his constituents. Second, Ramsey was concerned about how his friends and neighbours, also voters, would view him in light of the words about them. This concern was highlighted by a threat of a long-time supporter and campaign worker who threatened to withdraw his support if in fact Ramsey had used such words.

[46] Unquestionably, the recall campaign was upsetting to both Ramsey and his family. The extent to which this broadcast added to the general stress is difficult to discern on the evidence.

[47] In the period of December 16^th and following, the radio station, through its news broadcasts both on its AM and FM stations, made reference to the erroneous quotation without repeating it and professed apologies on its own and inferentially Meisner's behalf. Examples of this are to be found in news broadcast transcripts from December 15^th, 16^th and 17^th as recorded in Exhibit 1, Tab 12.

[48] Finally in its December 21^st Sunday edition The Province published an apology entitled "For the record sorry Mr. Ramsey."

[49] On December 29^th the defendants' counsel wrote to Ramsey's counsel the following:

[50] Ramsey in his cross-examination concedes that he has no claim for actual damages in terms of monetary or economic loss.

[51] On January 7, Mr. Burnett delivered to Mr. McGrady transcripts of the following broadcasts:

1. December 15, statement of the defendant Meisner upon his being handed the retraction published in The Province newspaper of that morning;

2. December 16, the Meisner editorial;

3. December 16, the Meisner interview by the CBC;

4. the December 19 statement/editorial of the CKPG radio station General Manager, Mr. Leighton.

[52] The letter enclosing them also confirmed that the December 15 Meisner editorial had been removed from the CKPG web site by 4:30 p.m. of December 15. The letter did not include any transcript of the talk or phone-in portion of the December 16 editorial. Mr. Burnett in the penultimate paragraph of the letter enclosing the transcript made the following observation:

[53] As I shall later observe, during the press conferences to which Mr. Burnett referred, Ramsey sought apologies not only from the defendants but also from Hauka, the Province and its publisher.

[54] The defendants in paragraph 6(a) of their Statement of Defence assert Ramsey's repetition of the constituent's words "reflected badly upon Ramsey's judgment, sensitivity and fitness for office".

[55] As well, in paragraph 9 of the Statement of Defence, the defendants assert that any damage suffered by Ramsey was "purely the result of his own conduct". The defendants raise a number of defences that are pled in the alternative. These are:

1. That the publication of the words complained of, being the [La-Z-Boy] quotation were not defamatory (para. 4);

2. That in the event that they are found to be defamatory then the defendants have made a full and fair retraction and apology and that they rely upon the defences of apology contained within the Libel and Slander Act (para. 5);

3. That in the alternative that the words complained of other than the [La-Z-Boy] quotation were the honestly held opinions of the defendant Meisner in respect of Ramsey's performances and elected representative and as such are fair comment (para. 6);

4. That in the further alternative, the defendants were entitled to constitutional privilege pursuant to the Charter of Rights and Freedoms to make such reports about Ramsey or that such expression constituted a qualified privilege (para. 7);

5. That in the further alternative, that Ramsey has not established that the complained of quotation was false or were negligently or recklessly made or that such words caused actual damage (para. 8);

6. In the further alternative, the defendant pleads that Ramsey has suffered no damage and, if he has, then such damage is a consequence of Ramsey's own or others conduct and not as a consequence of publications by the defendant.

[56] I pause at this stage to observe that Ramsey does not allege any defamatory acts other than the attribution of the La-Z-Boy quotation to himself and further that the defendants advance no arguments with respect to any privilege pursuant to the Charter of Rights and Freedoms.

[57] The first question to be determined was whether the material broadcast was libellous.

[58] The assessment of whether words broadcast or published are libellous or are capable of being defamatory is to be assessed from the perspective of an objective and, as such, a reasonable and intelligent listener or reader. As was discussed in Kerr v. Conlogue (1992), 65 B.C.L.R. (2d) 70 (B.C.S.C.) at 79 following Sim v. Stretch, [1936] 2 All E.R. 1237 (H.L.) at 1240:

Therefore, to resolve the issue of whether words are capable of being defamatory, the Court must determine whether, given their nature or ordinary meaning and bearing in mind the particular business trade or profession concerned, the statements are to Ramsey's discredit (Scott v. Sampson (1882), 8 Q.B.D. 491).

[59] In this situation, Ramsey was a politician subject to a recall campaign in which his political future stood in peril. Press reports suggested to the electorate that those in favour of the recall petition stood at the threshold of obtaining their objective: a by-election. Ramsey was a long-time resident of the community and, more importantly, of a constituency of some 22,000 voters. The erroneous attribution of the La-Z-Boy quote to him as opposed to attributing it to a single constituent was greatly prejudicial to him both as an MLA facing recall and as a member of the community to which the quotation made derogatory reference. In forming this conclusion, I adopt the definition of a defamatory statement cited by Nemetz, C.J.B.C. and Seaton, J.A. in their judgments in Vander Zalm v. Times Publishers Ltd. (1980), 18 B.C.L.R. 210 as extracted from R.F.V. Heuston, Salmond on the Law of Torts, 17^th ed. (London: Sweet & Maxwell, 1977) at 139-140:

I am of the view that the attribution of the La-Z-Boy quotation to Ramsey had the tendency to lower Ramsey not only in his constituents' esteem but also in the esteem of the public in general, as it opened him to ridicule and injured his reputation both as a politician and as a member of that community. Just as the quotation was derogatory to the voting public, so too did the attribution of it to Ramsey likewise denigrate him. I conclude the attribution of the quotation to Ramsey was defamatory.

[60] Section 7 of the Libel and Slander Act, R.S.B.C. 1996, c. 263, provides the following:

7. In an action the plaintiff is entitled to recover only actual damages if on the trial of the action is proven that:

(a) the article was published in good faith;

(b) there was reasonable ground to believe that it was for the public benefit;

(c) it did not involve a criminal charge; and

(d) if a publication took place in mistake or misapprehension of the facts a full and fair retraction of a statement in it alleged to be erroneous was published either in the next regular issue of the newspaper or other periodical publication, or in any regular issue of it published within three days after the service of the writ, and was published in as conspicuous a place and type as was the article complained of, or

(e) if the alleged libel was broadcast the retraction was broadcast within a reasonable time and at the latest, three days after the service of the Writ and was broadcast as widely and as often as was the alleged libel, and a transcript of the retraction broadcast was delivered or sent by registered mail addressed to the plaintiff within that period.

Sub-section 7(d) has no application to this matter. Section 6 of the Act is different from Section 7 in that while Section 6 refers to the concept of an apology all that is referred to in Section 7 is a full and fair retraction.

[61] I consider first the defences raised under Section 7.

[62] If the defendant succeeds upon a Section 7 defence, given Ramsey's concession that there are no actual damages incurred as a result of the broadcasts, there would be no need to consider Section 6. In order to successfully rely upon Section 7 and defeat Ramsey's claims, the defendant must satisfy each of the requirements of sections 7(a), (b), (c), (d) and (e).

[63] Was the article published in good faith? Here the defendant Meisner says that he relied, for the truth of what he broadcast, upon the fact that the La-Z-Boy quote was published in The Province newspaper. That assertion, however, is contradicted by Meisner himself. If that reliance was solidly founded in Meisner's mind, then there would have been no reason for him to have made what he says were his attempts to contact Ramsey on the Sunday before he prepared his editorial. I concluded earlier that I do not accept his evidence that he attempted in any meaningful way to contact Ramsey at his residence. Likewise, if Meisner sought to contact Ramsey's constituency office, he left no message there according to the evidence of those who checked the answering machine. The fact that Meisner testified that he sought to contact Ramsey is in my view indicative of an uncertainty with regards to the veracity of the attribution of the La-Z-Boy quotation to Ramsey. That lack of assurance of the quality of reportage in The Province is confirmed by Meisner's comments to the CBC reporter at approximately 8:00 a.m. on December 16^th. He was asked if he would "change the source of his materials for editorials in the future", to which he responded:

In addition, Meisner's comments in his editorial broadcast approximately one hour later on December 16^th might be regarded as an after-the-fact realization that he could not rely upon what he read in The Province. He said "I am not about to align myself with the kind of journalism used by the Vancouver Province to sell newspapers." These comments satisfy me that Meisner, prior to the December 15^th editorial, should have been on his guard and was not.

[64] While Ramsey's counsel submitted that the history of public disagreements between Meisner and Ramsey provide a basis to conclude that Meisner was in essence looking for a basis to "get" Ramsey and thus enhance his own hot-line show, I do not accept that characterization of Meisner's motive. Differing views aside, the fact is that where there is a basis to suspect the quality of information, it is negligent to broadcast it without taking such simple steps as were available to Meisner. Meisner could have checked with either Ramsey or Hauka, the known source of the quote. He did neither. He should have known that the attribution of such a quote to Ramsey had the potential to damage his reputation within the community both politically and otherwise. For such a seasoned political broadcaster, the warnings of caution were self-evident in The Province issue of December 14^th in which another political columnist, Michael Smith, referred to Ramsey's alleged remark as "astonishing" and stated that Ramsey was "a politician who should know better."

[65] Meisner was a broadcaster who knew Ramsey well. Such comments by another journalist should have reasonably set warning bells ringing in Meisner's ears; bells which he either did not hear or chose to ignore in the pursuit of a story that would, in the context of the Prince George recall campaign, be "big news" if it was true.

[66] Unquestionably, had Ramsey made such a comment it would have been reasonable grounds for Meisner to believe that such publication of the content was in the public benefit. Even if Ramsey had, as in fact he did, simply quoted a constituent, that too would have been of such importance in the context of the emotionally charged recall campaign as to warrant its publication in the public forum.

[67] The Ontario Court of Appeal in Teskey v. Canadian Newspapers Co. (1989), 59 D.L.R. (4^th) 709 adopted an earlier decision of the Supreme Court of Minnesota in Allan v. Pioneer Company , 41 N.W. 936 (1889) in which that Court held that publishing in good faith required not mere belief in the truth of an article published but

[68] Meisner failed to make inquiries about an information source that he himself had suspected. That suspicion, coupled with the knowledge of Ramsey's reputation despite his political differences with him, and the knowledge, as a public broadcaster of the effect of such an attribution to Ramsey shows that his editorial was not made in good faith.

[69] Although it is necessary for a defendant to meet each of the requirements of Section 7 to limit a plaintiff to actual damages, and I have concluded the absence of good faith in the broadcast attributing the La-Z-Boy quotation to Ramsey, I wish also to consider the further subsections of Section 7.

[70] I conclude as well that the defendant has established that there was "reasonable ground to believe that the broadcast of the attribution of the quotation to Ramsey (if true) was for the public benefit" (7(b)), and it did not involve a criminal charge (7(c)).

[71] Sub-section 7(d) sets forth the need to establish that if a publication took place in a mistake or misapprehension of the facts that a "full and fair retraction" of the erroneous statement occurred within the specified time limits. Sub-section (e) expands the manner of that retraction in the event that the alleged libel was in the form of a broadcast.

[72] As with the determination of whether or not a publication is defamatory, the test to be applied in terms of whether the retraction is a full and frank one is that of a reasonable person's conclusion (see R.E. Brown, The Law of Defamation in Canada (Toronto: Carswell, 1987) at 25-35). Such a reasonable person must conclude the apology or retraction is a "full and frank withdrawal of the charges conveyed and admits that the charge was unfounded and made under a misapprehension of the real facts." In the absence of malice, which I have already concluded is the situation in this case, "it is not necessary that the defendant indulge in an abject apology. There does not have to be a complete capitulation."

[73] Ramsey says that what the defendant characterizes as a retraction/apology are actually aggravations of the original harm done by Meisner's broadcast on December 15^th. Mr. McGrady characterizes these purported retractions/ apologies as "attack apologies" in which the original libellous statements the defendant made on December 15^th are simply reinforced in the listener's mind.

[74] The defendant sets forth the rhetorical question of what else the defendants could have done in the context of events of December 15^th and Mr. McGrady's letter of that same date, in which he requests the defendant not republish "the offending quotation" and then wrote "I will discuss with Mr. Ramsey this evening your suggestion as to a possible apology as a way of dealing with this matter. I am doubtful there will be any agreement but I do agree to raise it with him."

[75] I pause parenthetically to observe that the defendants did broadcast what they called a retraction "within a reasonable time and at least three days after the service of the writ" pursuant to sub-section (7)(e) and that such was broadcast as widely and as often as the original alleged libel. However, the defendants failed to provide to Ramsey a transcript of the retraction broadcast within the time prescribed by sub-section 7(e). The writ was served on December 23^rd. Transcripts were not delivered until January 7^th, 1998. That is a minor matter which I would not hold against the defendant.

[76] The real issue then is whether or not there has been a publication of a full and fair retraction. Can it be said that what occurred following the original broadcast that misattributed the La-Z-Boy quote to Ramsey amounted to such a full and fair retraction? Those "full and fair" retractions/ apologies were summarized in Mr. Burnett's letter to Mr. McGrady of January 7^th, 1998:

1. The December 15, 1997 statement by Mr. Meisner, approximately 15 minutes after his editorial, in which he was handed and immediately read the full quotation from Mr. Ramsey. We have not included the transcript since those words were transcribed in your statement of claim and you obviously have them.

2. The December 16, 1997 editorial by Ben Meisner, a transcript of which is attached and which was also posted on the Internet.

3. The December 16, 1997 interview of Ben Meisner on the CBC, a transcript of which is enclosed.

4. The December 19, 1997 statement, during Mr. Meisner's ordinary editorial comment, by the general manager of CKPG, a transcript of which is enclosed.

In addition, Mr. Meisner's clarification and apologies were referred to and quoted repeatedly in CKPG newscasts on December 15^th and 16^th, 1997.

[77] A retraction/apology has three constituent parts.

[78] It acknowledges the error, expresses regret for the error and expresses an apology for the erroneous statements. It must be understandable by a reasonable person, not just the plaintiff, to be a full and unqualified apology and thus a full and fair retraction (see Bennett v. Stupich (1981), 30 B.C.L.R. 57 (B.C.S.C.). As stated earlier, it does not require any element of abjectness, absent evidence of personal malice between the defamer and defamed.

[79] Such an apology/retraction must not provoke or remind the listener or reader of the original libel. In this situation, the concept of retraction and apology must be considered in the context of the various broadcasts that followed the original libel on December 15^th and that are referred to in Mr. Burnett's letter of January 7^th, 1998.

[80] The alleged "apology and retraction" that took place on December 15^th does not contain any reference to either an apology or retraction. Some 18 minutes into the broadcast that commenced with the libellous editorial and during which Meisner had reinforced the libel in discussions with various callers, Meisner was provided with the copy of the Monday Province newspaper. Mr. Meisner remarks:

[81] Meisner then reads the faxed copy of the morning's Province newspaper in which The Province acknowledges that the quotation attributed to Mr. Ramsey was not in context and then quoted an unedited transcript of the conversation between Ramsey and Mr. Hauka.

[82] Immediately thereafter when a caller comments on the quote "pompous remark", Meisner reminds the caller of his view that The Province had it out of context, then adds his own comments:

[83] Throughout the remaining portion of this approximate one hour broadcast there is no apology or retraction, rather there is a continued discussion on Meisner's opinions of disagreement with Ramsey and his Government's policy.

[84] On December 15^th at approximately 10:30 a.m. the offending editorial was posted to the defendant CKPG's website where it remained until approximately 1:30 in the afternoon, despite the fact that CKPG was aware of the libel contained therein.

[85] At 4:49 Mr. McGrady, having discussed the matter with Mr. Burnett, wrote to him and in that letter specifically requested:

...you take steps to ensure that neither the radio station nor Mr. Meisner republish any of these statements.

2. DECEMBER 15^th/16^th NEWS BROADCASTS:

[86] At 6:00 of December 15^th the defendant CKPG broadcast:

At the 7:00 p.m. news on December 15^th:

[87] The broadcasts of December 16^th were similar in tenor. Meisner continued to express regrets for having been involved when he said on a broadcast at 2:30:

[88] Such comments in my view do not constitute a retraction nor an apology but rather merely an expression of regret for having been caught up in a controversy for which Meisner and CKPG were facing potential legal proceedings.

[89] Counsel for the defendant argue that Ramsey indicated at a press scrum on December 16^th that he regarded the statements made by the defendant and CKPG as being apologetic. A reading of his evidence at trial on this issue does not draw me to this conclusion. What in essence Ramsey testified to on April 18^th was that on December 16^th, 1997, he was pleased to think that the broadcast comments "indicated some change of stance from the previous day".

[90] Meisner's comments to the CBC interviewer do not suggest to me any apologetic stance or retraction. Rather, they are evidence of an aggressive stance. Again, Meisner apologizes for "carrying the item", questions Ramsey's intentions for issuing the Writ and in failing to "contact the station to set the record straight." Meisner was attempting to shift some of the responsibility for his offending broadcast to Ramsey when he said "I haven't heard from Mr. Ramsey or any of his advisors to what I said was incorrect. I have been forced to rely upon the media to get that information." Once again he repeats his regret for having relied upon The Province newspaper when he says "my error was in taking The Province newspaper in prefaces as 'accurate' and I should not have." Meisner in this interview evidences little understanding of the effect of his erroneous comments upon Ramsey and his community. He seems to be attempting to shift responsibility for his own errors on to Ramsey.

[91] Ramsey does not say that these comments constitute a separate libel. Rather he argues that by repeating the original libel in the context of this purported retraction and apology, the original libel was reinforced, and the damage caused by the libel was therefore aggravated. This editorial contains within itself a number of remarkable features. The editorial is not a spontaneous broadcast but one which, according to the evidence, Meisner took time to prepare and as with other editorials, it was prepared on a disk for publication to the CKPG website.

[92] Meisner testified that in preparing it he followed the "standard practice in the industry to identify the error." Notwithstanding the written request of Ramsey's solicitor that the offending attribution of the quote to Ramsey and the quote itself not be repeated, Meisner commenced his editorial by referring to The Province article that attributed the La-Z-Boy quote to Ramsey. He observed that he quoted The Province word for word but now finds the newspaper was grossly incorrect. He blames The Province for this predicament.

[93] Meisner then reads the article in the Monday, December 15^th edition of The Province which again refers to the La-Z-Boy quote, but properly attributes it to a constituent.

[94] Meisner then observes the following:

[95] He continues saying:

[96] In the next paragraph Meisner comments:

and observes that he was:

[97] Meisner concludes his purported apology as follows:

[98] This editorial, in my view, does not approach what might be regarded as an apology or a full and fair retraction.

[99] Meisner instead of placing the responsibility for the error of his broadcast where it belonged, (i.e. squarely upon his own shoulders), continues to blame The Province and Ramsey. Adequate journalism demanded that Mr. Meinser inquire into the truthfulness of a questionable report before publishing it. His responsibility lies in the inquiries he failed to make.

[100] Meisner, in my view, erroneously criticized Ramsey for not providing information by which Meisner could extricate himself from the very error he had caused and which was his responsibility to resolve. Indeed, the evidence at trial was that Ramsey's assistant, Ms. Kidd, did contact CKPG's station manager, Michael Woodsworth, the very morning of the broadcast and faxed the Monday morning Province article entitled "Ramsey's remarks in full context" to the station during the course of Meisner's December 15^th broadcast. The defendant did not call Mr. Woodsworth at trial nor provide any reasons for not doing so, and thus I accept Ms. Kidd's evidence that such information was, in fact, provided to the defendant in a timely manner.

[101] Thus, Meisner's attempted explanation in the December 16^th editorial, although not incorrect, was misleading. He sought to blame Ramsey for the predicament and explain himself out the predicament he himself had created. I conclude that the December 16^th editorial was neither an apology nor a retraction. Rather it consisted of Meisner pointing the finger of responsibility at others in the context of an aggressive assault upon Ramsey's political views. Meisner simply has no concept of what he has done to Ramsey in terms of his standing within his residential and political community.

[102] After that December 16^th editorial, the defendant did not leave Prince George on a planned hunting trip as Ramsey had been led to believe by the editorial in Mr. Burnett's letter of December 7^th. Rather, he continued to host the call- in portion of the regular show.

[103] During that portion of the broadcast there is again reference to the La-Z-Boy quote. At one point Meisner commented that he read that The Province correction as "tongue and cheek" and at another point when a caller questions whether Ramsey could come up with the quoted constituent Meisner observed that that was an "interesting point".

[104] Counsel for Ramsey submitted that the continuing critical nature of Meisner's comments about Ramsey in the political arena detracts from any veracity of his apologies. In my view, the two issues are disparate and I would not conclude that these continuing critical comments about Ramsey's political policies detract from whatever might be argued to be an apology and retraction. They are at worst simply indicative of bad taste and poor timing.

[105] Upon Meisner leaving on his hunting trip, Mr. Leighton the General Manager of CKPG issued an editorial in the time spot used by Meisner's talk-show. The editorial commences by an assertion of neutrality on the issue of recall and support of the station's two editorial broadcasters and of their independence in expressing their views. In the final portion of the statement, Mr. Leighton then draws the listeners' attention to the "Meisner Editorial [repeating] a quotation attributable to Paul Ramsey which had been published the day before in the Vancouver Province."

[106] Mr. Leighton refers to being contacted by Ramsey's solicitor, removing Meisner's editorial from the station's website late on the afternoon of December 15^th and then referred to the various Meisner "apologizes and retractions" and concludes:

[107] The penultimate paragraph begins not with an apology to Ramsey but rather than expression of regret for having mistakenly accepted the veracity of The Province's article without question.

[108] It then purports to apologize but says "[the] whole thing was a mistake corrected as quickly as possible and with apologizes issued." As I have concluded earlier I do not conclude that what preceded December 19^th constituted any retraction or apology to Ramsey.

[109] The final paragraph returns to a confrontational style that, in essence, questions the actions of Ramsey in filing the lawsuit.

[110] The sincerity of what was advanced as an apology on December 19^th can be measured against the testimony of Mr. Leighton at trial when he said in his examination-in-chief:

[111] Mr. Leighton, as with Meisner, does not understand the effect that attributing such a quotation to Ramsey would not only have had upon Ramsey's political reputation but also his standing in the community in which he lived and taught for many years. Given the nature of Meisner's aggressive political attacks upon Ramsey on December 15^th and 16^th, attacks which in any other context would have been an accepted part of political life, the invitation to come on his show would be tantamount to inviting Ramsey into a lion's den where there could be no meaningful apology or retraction. It was not for Ramsey to make amends. That lay with the defendants who, in my opinion, utterly failed to do so.

[112] The defence profers no other efforts to make an apology or retraction and those that were pled were done in the alternative, to the argument that the December 15^th comments were not libellous. The defendants say Ramsey was not interested in an apology and point to Ramsey's counsel's letter to Mr. Burnett of December 15^th in which among other things he wrote:

[113] That comment does not suggest that Ramsey rejected the concept of apology. In the Prince George Citizen edition of December 16^th, 1997 it was reported that Ramsey wanted to compel the newspaper [The Province] and CKPG radio talk-show host Ben Meisner to apologize for their falsely reporting that he made critical comments about Prince George voters. This stated belied any suggestion that Ramsey was not desirous of seeking an apology.

[114] Indeed, there was good reason to issue the Writ at such an early time given the provisions of Section 7(e) of the Act.

[115] In conclusion, I am of the view that Section 7 provides no defence to the defendants in the circumstances of this case.

[116] The defendants advance an argument that there is a defence of qualified privilege available to them in the event that the Section 7 defence fails. The defence of qualified privilege is predicated upon a recognition that there are occasions in which one may publish or broadcast defamatory statements about another without legal consequence.

[117] In Moises v. Canadian Newspaper Company (1996), 24 B.C.L.R. (3d) 211, the British Columbia Court of Appeal held at 218 that the

[118] Some 109 years after Stuart v. Bell the New Zealand Court of Appeal, in a reconsideration of an earlier judgment that had been pronounced upon by the Judicial Committee of the Privy Council, reiterated the observations of Lindley L.J. in Stuart v. Bell when in Lange v. Atkinson, 2000 NZCA 95, it referred to his comments that the privilege would arise "if all or, at all events, the mass of right-minded men in the position of the defendant would have considered it their duty in the circumstances" to communicate the information concerned (at para. 19).

[119] The defence of qualified privilege was stated in Horrocks v. Lowe, [1974] 1 All E.R. 662 at 669 as arising when

[120] Since Horrocks v. Lowe, there have been a number of Commonwealth decisions that apply a qualified privilege defence to publications in the media on matters of political speech or commentary. These include Reynolds v. The Times Newspaper, [1998] 3 All E.R. 961 (C.A.) and [1999] H.L.J. No. 45 (Q.L.) (H.L.), 3 W.L.R. 1010; Lange v. Atkinson, [2000] 1 N.Z.L.R. 257 (J.C.P.C.) and Lange v. Australian Broadcasting Corp. (1997), 145 A.L.R. 96 (H.C.A.).

[121] Those decisions express views not dissimilar to the Supreme Court of Canada's observations in Hill v. The Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, that required defendant publishers to make a reasonable investigation into the correctness of that which they intended to publish or otherwise risk being found to have been reckless at a minimum or to have been found to not tell the truth at the worse and, thus, in either event to be denied the defence of qualified privilege.

[122] The most recent observation on this area of law is to be found in the New Zealand Court of Appeal's reconsideration of its earlier judgment in Lange v. Atkinson, upon its return from the Judicial Committee of the Privy Council. Both Lange and Reynolds were delivered by the Judicial Committee on the same day. Lange had been decided by the New Zealand Court of Appeal on the basis of the English Court of Appeal decision in Reynolds and thus, given the House of Lords' comments and in particular those of Lord Nicholls in Reynolds, the matter was referred back to the New Zealand Court of Appeal for further consideration. In Reynolds, the House of Lords held that qualified privilege may apply to political discussions in all circumstances of a particular publication, but that there is no generic privilege extending to publications of political information to the public at large and, therefore, it was still necessary to "examine the circumstances of publication before determining whether the public interest was served by treating the occasion as one of qualified privilege", (see Lange, para. 7). In Reynolds, Lord Nicolls set forth at para. 54 some 10 factors to be considered in this consideration, one of which was the "steps taken to verify the information".

[123] In its reconsideration, the New Zealand Court of Appeal at para. 44 considered the reasons of Diplock L.J. in Horrocks v. Lowe, and made these observations:

[44] At common law malice was presumed when the words published were false and defamatory. The presumption was however rebutted if the occasion was one of qualified privilege. The privilege could nevertheless be defeated if actual malice was proved by the plaintiff. What constituted malice was restated in Horrocks v. Lowe [1975] AC 135, 149-150 by Lord Diplock, in what have since been regarded as authoritative terms. His reference in that restatement to carelessness, impulsiveness or irrationality not being equated to indifference, must be read in context. The proposition does not qualify the preceding statements which cover lack of genuine belief and recklessness. Thus while carelessness will not of itself be sufficient to negate the defence, its existence may well support an assertion by the plaintiff of a lack of belief or recklessness. In this way the concept of reasonable or responsible conduct on the part of a defendant in the particular circumstances becomes a legitimate consideration. It can also be said that in the context of political discussion an irrational belief in truth is seldom likely to feature. It is for example difficult to envisage reliance on such an argument when a newspaper is defending its publication of false and defamatory material.

[45] Recklessness as to truth has traditionally been treated as equivalent to knowledge of falsity, see for example Fleming on Torts (9^th ed: 1998) at 639. Both deprive the defendant of qualified privilege. We note as a relevant analogy the recent approach of the House of Lords to recklessness when their Lordships were considering the tort of misfeasance in public office: see Three Rivers District Council v. Governor and Co. of the Bank of England (speeches 18 May 2000). In particular Lord Steyn, when citing from the judgment of Clarke J at first instance, approved the view that recklessness involves a lack of honesty in the exercise of the power in question. He added:

[46] By the same token, it may be said that reckless indifference to truth is almost as blameworthy as deliberately stating falsehoods. Lord Diplock gave a helpful description of recklessness in the present field when he spoke of someone who publishes defamatory material "without considering or caring" whether it was true or false. Indifference to truth is, of course, not the same thing conceptually as failing to take reasonable care with the truth but in practical terms they tend to shade into each other. It is useful, when considering whether an occasion of qualified privilege has been misused, to ask whether the defendant has exercised the degree of responsibility which the occasion required.

[47] What constitutes recklessness is something which must take its colour from the nature of the occasion, and the nature of the publication. If it is reckless not "to consider or care" whether a statement be true or false, as Lord Diplock indicated, it must be open to the view that a perfunctory level of consideration (against the substance, gravity and width of the publication) can also be reckless. It is within the concept of misusing the occasion to say that the defendant may be regarded as reckless if there has been a failure to give such responsible consideration to the truth or falsity of the statement as the jury considers should have been given in all the circumstances. In essence the privilege may well be lost if the defendant takes what in all the circumstances can fairly be described as a cavalier approach to the truth of the statement.

[48] No consideration and insufficient consideration are equally capable of leading to an inference of misuse of the occasion. The rationale for loss of the privilege in such circumstances is that the privilege is granted on the basis that it will be responsibly used. There is no public interest in allowing defamatory statements to be made irresponsibly - recklessly- under the banner of freedom of expression. What amounts to a reckless statement must depend significantly on what is said and to whom and by whom. It must be accepted that to require the defendant to give such responsible consideration to the truth or falsity of the publication as is required by the nature of the allegation and the width of the intended dissemination, may in some circumstances come close to a need for the taking of reasonable care. In others a genuine belief in truth after relatively hasty and incomplete consideration may be sufficient to satisfy the dictates of the occasion and to avoid any inference of taking improper advantage of the occasion.

[124] The New Zealand Court of Appeal declined to import the concept of reasonableness of control into the law of libel of New Zealand. That, however, is the law in Canada as enunciated in Hill, and thus the defence of qualified privilege requires an element of reasonable investigation into the correctness of that to be published or broadcast.

[125] The basis of the determination of that issue is clearly recognized in the introductory comments in the New Zealand Court of Appeal judgment in Lange in para. 2 where the Court quotes from the House of Lords' the decision in Reynolds:

[126] Thus the difference between the conclusion of the recent New Zealand Court of Appeal decision and the earlier views of the Supreme Court of Canada in Hill can be rationalized by considering the different social mores and values between these two societies. In Canadian society, given the competitive nature of the media, there are good reasons to require an aspect of reasonable investigation before publication.

[127] Here, the incorrect attribution of the La-Z-Boy quotation had consequences more than just political in nature, for it suggested derogatory views held by Ramsey about those in the community in which he lived, as well as those who might vote for him.

[128] The law required a reasonable investigation by Meisner to determine the veracity of the attribution of the quote to Ramsey. Meisner did not do so and therefore I conclude the defence of qualified privilege is not available to him. I conclude that Meisner cannot be said to have had an honest belief in what he said on December 15^th as his approach was one of recklessness rather than carelessness. The defence of qualified privilege cannot be availed of by such a defendant.

[129] There is also no basis in public policy or common convenience, therefore, that would be served by attaching qualified privilege to this occasion. The defendant CKPG, of course, is bound by the acts of Meisner.

[130] I now turn to the issue of damages. Section 6 of the Libel and Slander Act provides:

Here the defendant relies upon sub-section 2 saying that Meisner broadcast his December 15^th comments without actual malice and without gross negligence. I agree that Meisner was not motivated by any personal malice towards Ramsey. The success of his talk show depended in part upon establishing and maintaining an audience interest in the program in return for which he received free advertising on CKPG for his other business ventures.

[131] I have concluded that the efforts at apology and retraction of Meisner and his co-defendants failed to be that which they purported to be. They improperly questioned Ramsey's efforts, including the issuing of the writ; this questioning was less then genuine.

[132] While it is true that the defendants invited Ramsey onto Meisner's show, I have concluded it was reasonable for Ramsey to have rejected that proposal, given Meisner's aggressive political stance towards Ramsey, as being less an opportunity for apology and retraction than an opportunity for political debate in which Ramsey's views of his constituents would be overshadowed by other unrelated issues. The testimony of both Meisner and Mr. Leighton convinces me that even up to and including the trial there was no meaningful efforts at apology or retraction.

[133] In Hill, Mr. Justice Cory at para. 182 adopted the factors to be taken into account in assessing damages as outlined in Gatley on Libel and Slander, 8^th ed. (London: Sweet & Maxwell, 1998) as including:

[134] In the context of this case, bearing in mind Ramsey's political position, I observe that in MacKay v. Southam Company (1995), 17 W.W.R. 183 (B.C.C.A.) O'Halloran J.A. noted at 186:

[135] I accept that any award must not be such so as to stifle free expression of opinions and observe that those who do their research in a careful and reasoned manner have no need to fear the so-called "chilling effect" that was discussed in Westbank Indian Band v. Tomat (1992) 63 B.C.L.R. (2d) 273 (C.A.) by Wood J.A.

[136] The purpose of such award, as commented upon by Wood J.A. is:

[137] The defendant argues that Ramsey shares in the responsibility for Meisner's broadcast as he did nothing to caution him when Ramsey had, in fact, contacted the Prince George newspaper to ensure that they would not be publishing that contained in the Province. I accept that Section 4 of the Negligence Act, R.S.B.C. 1996, c. 333, may have application in libel actions, (see Brown v. Cole (1995), 14 B.C.L.R. (3d) 53 (C.A.) where liability was sought to be apportioned between defendants and third parties.) But I am unaware of any case where it has been applied to a plaintiff when he failed to ward off a potential defamer. In each of Moises v. The Canadian Newspaper Company, supra, Wenman v. Pacific Press Ltd. (30 January 1991),Vancouver Registry, C891725 (B.C.S.C.), [1991] B.C.J. No. 186 (Q.L.) and Vogel v. The CBC (1982), 35 B.C.L.R. 7 (S.C.) it was argued and rejected that a plaintiff had contributed to his own defamation by his conduct.

[138] The simple and most consistent answer to this assertion has been that such conduct whether in writing, letters to the editor, being a member of parliament or in conducting certain litigation is simply no answer to inaccurate and defamatory publications or broadcasts. I am of the view there was no duty on the part of Ramsey to warn off his potential defamers.

[139] The defendant also argues Ramsey contributed to his own defamation by failing in the Hauka interview to "distance himself" from the quote of the constituent. The answer to this is found in the Hauka interview as discussed in Ramsey's cross-examination on April 18 at page 9 of the transcript at trial and page 4 of the transcript of the interview in which Mr. Hauka seems to have no difficulty in recording that Ramsey was merely quoting a constituent, not adopting as his own the impugned remarks.

[140] In assessing damages I take into account:

1. That while Ramsey is a politician with whom Meisner has had substantial political disagreements, it had never been suggested that he held his constituents or any of them in any contempt or disregard.

2. That Meisner made no serious effort to check the accuracy of The Province story despite his concerns before December 15^th as to the reliability of that newspaper as a source of information.

3. The defendants, following the editorial of December 15^th, made no meaningful or adequate apology or retraction and that which was attempted was couched in criticism of Ramsey's actions following the editorial and an expression of regret for their predicament in relying upon the newspaper. I also consider the inappropriateness of the defence's suggestion of fault on Ramsey's part because he "failed to set the record straight".

4 The particular situation in which Ramsey was at the time embroiled: his constituents having him recalled and how that affected his position in the community as a long-time resident and college instructor.

5. That the defendant's audience, according to broadcast statistics might have some 4,100 listeners in a broadcast area of some 80,000 residents, 22,000 of which were Ramsey's constituents.

6. The posting of the editorial of December 15^th to the CKPG website from 10:30 a.m. to 4:30 p.m. of that day during which there were 21 "hits" to the site.

7. The effect of the editorial upon Ramsey. While I do not accept that most of Ramsey's emotional tenderness arose because of this broadcast particularly in light of the highly charged recall campaign that unquestionably affected Ramsey and members of his family, the editorial nevertheless heightened those emotions, at least for a short period of time until other recall events overtook the editorial.

8. The effect of the editorial referring to a "quote" rather than just a statement and the fact that, as testified to by Mr. Meisner, "something taken as a quote is taken more seriously than other things".

9. The fact that Meisner had a reputation as a political commentator and his stature.

10. That this comment did not result in Ramsey's recall and that now, some two years later, the focus of the public has moved on to other issues.

[141] In my view, the appropriate award of damages is in the amount of $30,000.00 and I so order.

[142] Counsel for Ramsey seeks a further order requiring the defendant CKPG to remove the Meisner editorial of December 16^th from its website.

[143] That matter is now, as I observe, over two years old. As with yesterday's newspaper which were once used to wrap fish and chips rather than be read for yesterday's news I doubt that this editorial has any importance to anyone but its author. I decline to make any order for its deletion.

[144] Ramsey is entitled to costs on Scale 3 unless there be reason to order otherwise.

"J.D. Taylor, J."
The Honourable Mr. Justice J.D. Taylor