Citation:

Home Equity Development v. Crow, et al

Date: 20020730

 

 

2002 BCSC 1138

Docket:

01/4472

 

Registry:  Victoria

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

HOME EQUITY DEVELOPMENT INC., SILVER SPRAY
INVESTMENTS INC. AND MICHAEL THORNTON

plaintiffs

AND:

 

ALLAN J. CROW, LANI THOMPSON, HORST KOHNE, BARBARA KOHNE,
CHARLOTTE FUNSTON, MIKE PETTIT, FRED GRAHAM, GLORIA GRAHAM,
SHANNON ASDAHL, A.E. (TED) BOWERS, CHARLYN BOWERS, JIM BOWMAN,
BETTY FAY MORTIN, PAM A. ENGWER AND SAUL ARBESS

 

defendants

 

 

REASONS FOR JUDGMENT
OF THE
HONOURABLE madam JUSTICE quijano

 

 

 

 

Counsel for the Plaintiffs:

Roger D. McConchie

Counsel for the Defendants:

Horst Kohne, Barbara Kohne, Fred Graham, Gloria Graham, Pam A. Engwer and Charlyn Bowers

 

Michael R. Scherr

Appearing on their own behalf:

Mike Pettit, Jim Bowman,
Lani Thompson, Allan J. Crow
and Charlotte Funston

 

 

Dates and Place of Hearing/Trial:

February 11-15, 2002;
February 18-22, 2002;
March 4, 2002;
April 2-5, 2002;
April 8-12, 2002;
May 27-28, 2002; and
May 30-31, 2002

 

Victoria, BC

 

INTRODUCTION

[1]            This is an application by several of the defendants seeking to have the plaintiffs’ claims against them for defamation dismissed with damages and costs.  The application is brought pursuant to the Protection of Public Participation Act, S.B.C. 2001, c. 19 ("PPPA"), known in the vernacular as "anti-slapp legislation".

[2]            These defendants deny that they have defamed the plaintiffs and allege that the plaintiffs have commenced this action for the principal purpose of preventing or dissuading them from publicly commenting on the plaintiffs’ development plans and activities in East Sooke.

ISSUES

[3]            Whether the plaintiffs’ claims against the defendants have a reasonable prospect of success and, if so, whether the claims have been brought or maintained for an improper purpose.

THE ACT

[4]            The defendants bring this application pursuant to the provisions of s. 4(1) of the PPPA.  Section 4 is as follows:

4(1)  If a defendant against whom a proceeding is brought or maintained considers that the whole of the proceeding or any claim within the proceeding has been brought or is being maintained for an improper purpose, the defendant may, subject to subsection (2), bring an application for one or more of the following orders:

      (a)   to dismiss the proceeding or claim, as the case may be;

      (b)   for reasonable costs and expenses;

      (c)   for punitive or exemplary damages against the plaintiff.

[5]            The operative terms in s. 4 are “brought or maintained” and “improper purpose”.  Those terms are defined in s. 1(1)and(2).

1(1)  “improper purpose” has the meaning set out in subsection (2);

      ...

1(2)  A proceeding or claim is brought or maintained for an improper purpose if

      (a)   the plaintiff could have no reasonable expectation that the proceeding or claim will succeed at trial, and

      (b)   a principal purpose for bringing the proceeding or claim is

            (i)   to dissuade the defendant from engaging in public participation,

            (ii)  to dissuade other persons from engaging in public participation,

            (iii) to divert the defendant’s resources from public participation to the proceeding, or

            (iv)  to penalize the defendant for engaging in public participation.

[6]            “public participation” is defined in s. 1(1) to mean “communication or conduct aimed at influencing public opinion, or promoting or furthering lawful action by the public or by any government body, in relation to an issue of public interest ...” with certain exceptions which are not relevant to this application.

[7]            It is clear from the language of the statute that the defendants, as applicants, must establish, on a balance of probabilities, both that the plaintiffs' claims against them have no reasonable prospect of success and that the plaintiffs brought or maintained the action for at least one of the purposes set out in s. 1(2)(b)(i), (ii), (iii) or (iv).

[8]            The purposes of the PPPA are found in s. 2:

2     The purposes of this Act are to

      (a)   encourage public participation, and dissuade persons from bringing or maintaining proceedings or claims for an improper purpose, by providing

            (i)     an opportunity, at or before the trial of a proceeding, for a defendant to allege that, and for the court to consider whether, the proceeding or a claim within the proceeding is brought or maintained for an improper purpose,

            (ii)    a means by which a proceeding or claim that is brought or maintained for an improper purpose can be summarily dismissed,

            (iii)   a means by which persons who are subjected to a proceeding or a claim that is brought or maintained for an improper purpose may obtain reimbursement for all reasonable costs and expenses that they incur as a result,

            (iv)    a means by which punitive or exemplary damages may be imposed in respect of a proceeding or claim that is brought or maintained for an improper purpose, and

            (v)     protection from liability for defamation if the defamatory communication or conduct constitutes public participation, and

      (b)   preserve the right of access to the courts for all proceedings and claims that are not brought or maintained for an improper purpose.

[9]            Section 3 of the PPPA deals specifically with defamation actions.  It provides the protection of qualified privilege to communications in the nature of public participation.  However, the issue of the retrospectivity of this section was determined by Bauman, J. of this court on an earlier application in this action.  Bauman, J. decided that the provision of qualified privilege applied only to communications made after the Act came into force.  All of the communications complained of were made in 1997 and 1998.  Therefore, the statutory defence of qualified privilege contemplated in s. 3 is not available to the defendants.

[10]        To consider whether the applications might succeed, it must first be determined, in the context of the main action, whether, with respect to each of the applicants, the plaintiffs have established a prima facie claim for defamation.  If they have then the onus shifts to the applicant to satisfy the two requirements under s. 1(2) on a balance of probabilities.

[11]        During the course of the hearing I was referred by the plaintiffs and by the defendants to a vast number of authorities on the law of defamation and the defences to it.  Because this is not a hearing to determine whether the plaintiffs should have judgment against the defendants I have only referred generally to the propositions of law for which the authorities stand.  A general understanding of the law of defamation is all that is required to determine the threshold question, namely:  Has the applicant established that the plaintiffs’ claim against him or her has no reasonable prospect of success?

[12]        There are no authorities dealing with applications of any kind under the PPPA.

[13]        For the plaintiffs to establish the claim of defamation, in each case, they must show that the applicant has published or caused to be published words that in their ordinary meaning would be understood by the ordinary person to injure the reputation or diminish the esteem, goodwill or confidence in which the plaintiff is held.  If a reasonable person would think that the communication was defamatory and that it  referred to the plaintiff then two of the three elements will have been satisfied.  The plaintiff then need only show that the communication was published to at least one person other than the plaintiff.

[14]        It is generally defamatory to say or suggest that someone is dishonest, dishonourable, unprincipled, untrustworthy, lacking in integrity, a cheat, corrupt, engages in falsehoods, made false promises or is less than truthful.  (See Brown, The Law Of Defamation In Canada, 2d. Ed. (1999) at pp. 4-20, 4-21, 4-51, 4-68, 4-84 and 4-118.)

[15]        In an application pursuant to the PPPA, once the plaintiffs have established a prima facie case of defamation there arises the presumption that the statement complained of is false and the applicant must rebut that presumption in order to show that the plaintiffs have no reasonable prospect of success.  In the instant case, because the statutory qualified privilege is not available, each applicant must establish either that the facts contained in the communication were true or, where the communication is opinion, that the facts upon which the opinion was based were true.  Truth establishes the defences of justification and fair comment.

[16]        The defendants, Crow and Thompson, also argued that they are protected by the common law defence of qualified privilege, although that defence has not yet been pleaded.  Because the defence is not pleaded it is not available to the applicants on this application.  Having regard to all of the evidence, it is questionable whether the evidence would support an application to amend.

[17]        In any event, it is not sufficient for the purposes of the PPPA that the applicant show that he or she has an arguable defence.  The applicant must establish his or her defence to the extent that it supports the conclusion that the plaintiffs have no reasonable prospect of success.

[18]        If the applicant is unsuccessful in establishing that the plaintiffs’ claims have no reasonable prospect of success against him or her, then that is the end of the matter.

[19]        If the applicant is successful in establishing that none of the plaintiffs’ claims have a reasonable prospect of success, the applicant must then establish on a balance of probabilities that the claim was brought or is being maintained for an improper purpose.

NARRATIVE

[20]        In the last half of 1996 the plaintiff company entered into an agreement to purchase a large parcel of waterfront property in East Sooke, British Columbia.  The property includes a substantial amount of waterfront on the point across Sooke Harbour from Whiffen Spit, known as Possession Point.  The property is known as the Silver Spray Lands.

[21]        The existing zoning of the property allowed for residential development.  The personal plaintiff, Michael Thornton, the principal of the corporate plaintiff, had plans for the development of the property which included over 200 single family residential dwellings, an eco-lodge, nature trails and a golf course.

[22]        East Sooke is a rural, largely undeveloped, area and when, in the spring of 1997, some of the local residents learned of the plaintiffs’ plans to develop the land they were alarmed.  Some of the residents banded together in an organization called the Rural Association of East Sooke ("RAES") to mobilize opposition to the development out of concern that the proposed development would forever change the ecology and the lifestyle of the area, both of which they valued highly.  Some of the defendants in this action were and are members of that group.  Others of the defendants acted independently of the organized group.

[23]         The primary goal of all of the defendant/applicants, as they saw it, was to protect and preserve the wilderness of the Silver Spray Lands.

[24]        There is no question that, from April 1997, the issue of the development was of major interest to many members of the East Sooke community.

[25]        In the course of their passionate opposition to the project, and to encourage other members of the community to oppose the proposed project, some of the members of the East Sooke community caused allegations about the plaintiffs to be published in letters, in letters to the editor and in a RAES newsletter.  In the main action the plaintiffs complain that the contents of some of the letters to the editors and the RAES newsletter are defamatory.

[26]        In the course of the hearing I indicated that I had no difficulty, for the purposes of the hearing, in accepting that the communications about which the plaintiffs complain were made in the context of a public debate about the project and constituted “public participation”.

[27]        The action was commenced by the plaintiffs in 1998 and originally related to publications by 15 different defendants.  Several of the original defendants are no longer parties to the action.  The publications of the applicants about which the plaintiffs complain were made in 1997 and 1998.

[28]        Examinations for discovery have been conducted.  The matter was first set down for trial to commence in August 2001.  In February 2001 the plaintiffs made an offer to settle to all but one of the defendants.  The plaintiffs required an apology in the form presented in return for which the plaintiffs’ action against the defendants would be dismissed without prejudice to the defendants’ ability to continue with their counter-claim.  None of the applicants accepted the offer.

[29]        In April 2001 the provincial government brought into effect the Protection of Public Participation Act.  Several  of the defendants commenced an application under that Act in May, 2001 seeking to have the plaintiffs’ action against them dismissed and damages assessed.  It is this application that is before the court at this time.  The trial of the plaintiffs’ claims was adjourned and is now scheduled to be heard early in 2003.

[30]        The PPPA was repealed in August, 2001.

[31]        By the time the substance of this application was heard there were only three applicants remaining:  Allan Crow, Lani Thompson and Jim Bowman.

ANALYSIS

[32]        Because, with one exception, the plaintiffs’ claims against each of the three defendant/applicants is related to different publications, it is necessary to consider the position of each of the applicants individually.

1.    Jim Bowman

[33]        Mr. Bowman is the author of two publications giving rise to the plaintiffs’ claims against him.  The first, a letter to the editor of the Sooke New Mirror, which was published by the newspaper on or about May 14, 1997, and which contained the following statements:

This brochure generally repeats what the developer {the plaintiff Thornton} outlined at the meeting.  He dangled various carrots before us simple country folk.  All we had to do in return was to be the possible beneficiaries of his largesse and to support his application to have part of the ranch taken out of the Agricultural Land Reserve.

... but those of you who played seven card stud poker will recognize the ploy.  The player reluctantly calls the bet while gazing disgustedly at the deuce he’s been dealt.  Nothing to scare the other player there.  But the deuce just happens to match a pair that are his hidden hole cards.

... indeed, if you had used your own head a little better you might have encountered the words of Blaise Pascal, the celebrated 17th Century philosopher and scientist.  Pascal wrote, "the heart has its reasons that reason knows nothing of."  He is also noted for his law of physics dealing with the movement of fluids in a confined space, but I’m not sure that law can be applied to snake oil.

[34]        The plaintiffs say that these passages are false and defamatory in that an ordinary person “not avid for scandal” would understand them to mean:

1.    That the plaintiffs were the type of person and corporations who would resort to trickery and devious plans to dupe simple persons;

2.    That the plaintiffs considered the people of the District of Sooke to be generally simple of mind, which the plaintiffs did not, and as a result the plaintiffs should be hated and despised by the people of the District of Sooke and the people of the District of Sooke should not in any way trust the plaintiffs; and

3.    That the plaintiffs were snake oil salesmen and not persons of good character or repute, and as such the plaintiffs should be despised, hated and ridiculed.

[35]        Mr. Bowman’s primary argument is that in the letter he was responding to an article in a previous edition of the newspaper and that his letter was not directed at the plaintiffs but rather at the editor of the paper.  He made other arguments with respect to the appropriate interpretation one should give to the language complained of.  However, the court will look at the language not through the eyes of the author but rather through the eyes of the reasonable person “not avid for scandal”.

[36]        There is no question that the letter refers to the plaintiffs.  There is no question that it was published.  Considering the context and the words used, in particular the poker analogy and the reference to "snake oil" I am satisfied that an ordinary reader would conclude that the plaintiffs were dishonest scoundrels and tricksters.  That finding results in the presumption that the plaintiffs have been defamed.

[37]        There is no evidence from which it might be possible to conclude that what Mr. Bowman said about the plaintiffs was true.

[38]        The second publication complained of is a letter to the editor of the Sooke News Mirror written on or about August 15, 1997.  The letter was not published on that date and on or about August 28, 1997, Mr. Bowman caused the letter to be distributed to number of persons resident in the District of Sooke.  The letter was subsequently published by the newspaper on September 10, 1997.  The letter contained the following statements about which the plaintiffs complain:

... Mr. Thornton is no philanthropist ...

Mr. Thornton maintains that his "planned community" will help preserve this quality of life.  Perhaps that is the greatest piece of dissembling that he’s guilty of in this series of charades he keeps presenting to the residents of East Sooke.

[39]        The plaintiff Thornton says that these statements are false and would lead the ordinary reader to conclude that the plaintiffs were deceitful and were liars.

[40]        Considering the context in which it was made, the reference to philanthropy does not, prima facie, support a finding that the statement was defamatory.  However, there is no doubt that the description of Mr. Thornton as a dissembler is the equivalent of describing him as an untruthful person, a liar.  That is defamatory per se.

[41]        The onus is therefore on Mr. Bowman to establish that what he said was true.  He has not put forward any evidence from which one could conclude that the description of the plaintiff as a dissembler was true.

[42]        Not only am I not satisfied that the plaintiffs’ claims against Mr. Bowman have no reasonable prospect of success, I am satisfied on the basis of the evidence before me that both of the claims have a reasonable prospect of success.

[43]        Having concluded that Mr. Bowman has not established on a balance of probabilities that the plaintiffs’ claims against him have no reasonable prospect of success, it is unnecessary to consider whether the plaintiffs commenced or maintained their claims against him for an improper purpose.

[44]        The application of Jim Bowman is dismissed.

2.    Mr. Crow

[45]        The claims against Mr. Crow arise out of three publications.  The first is a letter which he wrote and distributed by mail on or about May 8, 1997 to all of the residents of East Sooke who received mail delivery through Canada Post.  The second is a quote from an interview given by Mr. Crow to the local newspaper and published on or about May 27, 1998.  The third is contained in a newsletter published by the East Sooke community group RAES in June 1998, of which Mr. Crow was one of the authors.

[46]        The letter of May 8, 1997, contained the following passages, about which the plaintiff complains:

Dear neighbor, near and far,

We would like to make you aware of an urgent environmental crisis now taking place on the Silver Spray ranch lands ever since the wrecking crew from Vancouver arrived and began ripping the heart out of East Sooke Park ...

... intensive logging and road building are now in full swing during the nesting and migrating season.  Dozens and dozens and dozens of loads are being hauled out, most in the wee hours of the morning, so as not to attract attention.  They are working fast behind closed gates with no scrutiny.

... we must act now to stop the desecration and this is fast becoming much larger than a local issue.

[47]        The plaintiffs say that these passages are false and defamatory in that an ordinary person “not avid for scandal” would understand them to mean:

      1.    That the plaintiffs deliberately and callously wrecked East Sooke Regional Park;

      2.    That the plaintiffs contrived to have logging, road building and log hauling occur in a clandestine manner, to conceal their desecration of East Sooke Regional Park from the public and to conceal the development of the Silver Spray Lands.

[48]        There is no question that the letter refers to the plaintiffs and that it was published.  Considering the context and the language used, in particular that the plaintiffs were “ripping the heart out of East Sooke Park” and “that the plaintiffs were “working fast behind closed gates with no scrutiny” “in the wee hours of the morning so as not to attract attention”, I am satisfied that an ordinary reader would conclude that the plaintiffs were causing environmental damage to a public park and that they were deceitful in concealing their development activities from the public.

[49]        In the second publication complained of Mr. Crow is quoted in the Sooke News Mirror as having said the following:

... Michael Thornton has blown the landmark Possession Point ‘to smithereens’.  "'... it’s devastating,'" Crow said.  'It’s not every day that someone blows a Juan de Fuca headland to smithereens.  It’s hard to comprehend how someone could do all this and even say the word eco in a sentence.'

[50]        Had this been the only publication complained of in relation to Mr. Crow, I would have concluded that he had succeeded in establishing that the plaintiffs had no reasonable prospect of success at trial.  Unfortunately for Mr. Crow, it is not.

[51]        The third publication complained of is a newsletter published by RAES which contained a “trivia test” that the plaintiffs say defamed them by implying that the plaintiffs had made a secret contribution through a numbered company to the campaign of the incumbent local representative to the Capital Regional District ("CRD") in return for which the plaintiffs’ application to have a certain parcel of land removed from the Agricultural Land Reserve ("ALR") would be forwarded directly to the CRD without a public hearing.

[52]        Having regard to the language used and the context in which it was used, as well as the fact that Mr. Crow became aware that the allegation that the plaintiffs had made a political contribution through a numbered company was false but still refused to retract or apologize, the fact that before publishing he made no reasonable enquiries to determine the truth of the allegation and that he gave the plaintiffs no opportunity to explain or deny the truth of the allegation, I have concluded that Mr. Crow has not established that the plaintiffs’ claims against him have no reasonable prospect of success at trial.

[53]        Having concluded that Mr. Crow has not established that the plaintiffs’ claims against him have no reasonable prospect of success, it is unnecessary to consider improper purpose.

3.    Ms. Thompson

[54]        There are three publications about which the plaintiffs complain in which Ms. Thompson was involved, either as the author or as a co-author.

[55]        The first is a letter written by her to the Sooke News Mirror and published by the newspaper August 13, 1997.  In that letter the plaintiffs complain that they were defamed by the following description of the plaintiffs activities on the Silver Spray Lands:

... then we have the introduction of five species of invasive grass adjacent to our wilderness park along with a high dose of nitrate fertilizer.  He has annihilated almost the entire foreshore botanical ecosystem, including over 100 rare flowering plants, 60 rare plant communities, nearly 100 native food plants, rendering useless to the mammals, reptiles, amphibians an birds which used this for roosting and foraging habitat ...

[56]        There is no question that the letter was published and this it referred to the plaintiffs.

[57]        The plaintiffs say the ordinary reader “not avid for scandal” would understand these to be statements of fact from which would be inferred that the plaintiffs callously and deliberately harmed the environment and deliberately and callously annihilated the entire foreshore botanical ecosystem on the Silver Spray Lands.

[58]        The plaintiffs deny that any of the allegations were true and it is apparent from all of the evidence that even though Ms. Thompson may honestly have believed that what she said was true, she is unable to prove the truth of the statements.

[59]        The second publication complained of is the same newsletter for which Mr. Crow is sued:  the trivia contest.  Although Ms. Thompson did not author the newsletter, she acknowledged that as a member of the RAES executive she reviewed the publication before it was distributed and made no inquiry as to the truth of the innuendo contained in it.  Thus she is responsible at law for the publication, and she stands in the same position as Mr. Crow.

[60]        The third publication complained of is a letter to the editor of the Sooke News Mirror which was published July 22, 1998, and signed by Charlyn Bowers.  The portion of the letter which the plaintiffs claim to be defamatory was actually written by Ms. Thompson.  It is the following description of Possession Point:

Our walk turned into a nightmare.

I walked on, and my gaze shifted to that dynamite view of Possession Point.  That incredibly beautiful forested point is gone.  With the exception of the farmland, the entire shore has been hacked down, and bulldozed, and is devoid of all life.

[61]        The plaintiffs say that to the ordinary reader “not avid for scandal” this description would be understood to mean that the plaintiffs deliberately and callously harmed the environment by hacking and/or bulldozing all vegetation off Possession Point and by removing all life from the Point.

[62]        Although there is evidence that the plaintiffs had done clearing and tree removal on the lands, the descriptions contained in both letter number one and letter number three appear to have been grossly exaggerated, based on the evidence proffered by Ms. Thompson in support of her position that the descriptions were based on fact and were accurate.  From the evidence before me, Ms. Thompson’s description of Possession Point, particularly as “devoid of all life”, was not known to her to be true as a fact at the time the letter was published nor was it established to have been true in any event.  That she honestly believed what she said to be true is not sufficient answer to a claim of defamation.

[63]        I have concluded that Ms. Thompson has not established that the plaintiffs’ claims against her have no reasonable prospect of success.  It is not, therefore, necessary to consider the question of improper purpose.

SUMMARY

[64]        Having regard to the law of defamation, and having concluded that the applicants must establish both that the plaintiffs have no reasonable prospect of succeeding in their defamation action and that the action was brought or maintained for an improper purpose, I am satisfied that the applicants have failed to meet the burden of proof required by the PPPA.  I am also satisfied that at least two of the plaintiffs’ claims against each of Mr. Crow, Ms. Thompson and Mr. Bowman have more than a reasonable prospect of success.

[65]        The applicants argued that the bringing of the suit against them was done for the improper purpose of interfering with their right to public participation and to dissuade others from public participation in relation to the plaintiffs’ development plans.

[66]        I have no doubt that in every case where an action is brought for defamation in the context of “public participation” the bringing of the action will inhibit to a greater or lesser extent the participation of those against whom the suit is brought and those who fear that they may also become involved in the litigation.  However, the language of the PPPA cannot be interpreted so broadly as to result in every action brought against individuals who voice opinions contrary to the plaintiff (in each case) as being for an improper purpose merely because some members of the affected community choose to refrain from public criticism of the particular project or issue as a result.  That this is so is reflected in the provisions of s. 2(b) of the Act.

[67]        As well it is clear that the applicants were not in fact inhibited by the lawsuit from continuing their opposition to the plaintiffs’ development.

[68]        Having concluded that none of the applicants has established that the plaintiffs’ claims against them have no reasonable prospect of success, it is not necessary to consider whether any of the applicants have established that the action was brought or maintained for an improper purpose.

[69]        The applicants have all failed to establish on a balance of probabilities that the plaintiffs’ claims against them have no reasonable chance of succeeding.

[70]        The fact that the bulk of the applicants’ affidavit material was ruled inadmissible does not affect the result.  Even if all of the defendants’ evidence had been admitted it would not have been sufficient to establish that the plaintiffs had no reasonable prospect of success in maintaining one or more of their claims against each of the defendants for defamation.

[71]        The applications are dismissed.

COSTS

The issue of costs was not argued.  The general rule is costs are to be awarded to the successful party.  In the circumstances of this application, that is that it was brought pursuant to a statute which had never before been the subject of litigation, that a significant amount of preparation for this application appears also to be preparation for trial, and because I will be the judge who hears the trial of this matter, I will leave the question of the costs of this application to be dealt with after trial.

“G.M. Quijano, J.”
The Honourable Madam Justice G.M. Quijano