2006 BCSC 1131 Loh v. Yang

Before: The Honourable Mr. Justice R.R. Holmes

Reasons for Judgment

Counsel for the Plaintiffs:	K.J. MacDonald
The Defendant, Yin Hsing Wen Yang:	Appearing on her own behalf
Date and Place of Trial:	December 5-8, 12-16, 19-23, 2005 January 3-6, January 9, 2006
	Vancouver, B.C.

[1] The plaintiffs’ claims against the defendant are for injunctive relief and damages arising from alleged defamation, harassment and violation of the right of privacy by the defendant. The defendant is alleged to have accused the personal plaintiff (“Loh”) of dishonesty during an open line television show broadcast, published via the internet statements that he is a liar, and displayed in various locations placards containing statements defamatory of him.

[2] The plaintiff Loh is a practicing Barrister and Solicitor carrying on the practice of law in Vancouver through the corporate plaintiff Mason Loh Law Corporation, which carries on the practice of law as Loh & Company.

[3] The plaintiff Loh is a Canadian of Chinese descent. His mother tongue is Mandarin but he speaks three Chinese dialects. He graduated from U.B.C. Law School in 1984, and articled and practiced with a major Vancouver law firm until 1988. During that period he opened, and managed for two and a half years, a branch office for the firm in Hong Kong.

[4] Loh founded his own firm in Vancouver in 1990. There are four lawyers associated to the firm, each with a different area of practice. The plaintiff attracts the large measure of the firm’s business. The firm has a large Asian-based clientele. Many clients are now second and third generation ethnic Chinese Canadians. Loh administers and manages the law practice, makes initial contact with clients and often passes the client to an associate of the firm for the appropriate legal services.

[5] The plaintiff Loh has an extremely high profile in the Chinese community. He has been a member of SUCCESS since 1980, and upon returning to Vancouver from Hong Kong in 1986 he became a member of the Board of Directors. SUCCESS is a society dedicated to helping immigrants settle, overcome barriers, and to become contributing Canadian citizens.

[6] Loh was Chairman of the society from 1994-1998. The twenty-person Board of Directors elects the Chairman annually, the Board members are elected from the membership at large. SUCCESS is the largest of the Chinese societies. In 1998 it had ten offices, twenty-five employees and a budget of approximately $8 million.

[7] The personal plaintiff is very involved in community, charitable and educational organizations. He has been a Board member or Chair of the Traditional Chinese Medicine and Acupuncture Association, The United Way, St. Joseph’s Hospital, and the International Committee of Legal Education Society.

[8] The personal plaintiff has frequent contact with the print media who seek him out for comment on matters of community interest. He was a columnist for a Chinese newspaper during the 1990s. He has also over his career frequently been requested to guest and comment on many issues during radio and television interviews.

[9] Loh estimates he spends approximately one-half of his time on community service and the one-half on his law practice.

[10] The defendant prior to 2002 lived most of her life in Taiwan and her visits to Canada were mainly to Toronto and Montreal and only occasionally to Vancouver. Since 2002 she has visited and lived in the Vancouver area, and now lives in Burnaby. I believe she may now have received her Canadian citizenship. There have been two tragic events in the defendant’s life which were relevant to the defendant seeking out the plaintiff Loh in the summer of 1998.

[11] The first event was the death of her older brother Yin Ching-Feng, a Captain in the Taiwan navy, who it is believed was murdered December 3, 1993 as a result of his knowledge of a bribery and corruption scandal related to the purchase by the government of Taiwan of Lafayette class frigates from France.

[12] The second event concerns the death of the defendant’s twenty-year-old son Yang Yi-Li (“Yang”), a McGill University student found dead in the bathtub of his Montreal apartment November 1, 1996. The coroner in Montreal found the death was accidental electrocution caused by an electrically live 110 volt A.C. hair dryer which was found with him in the tub.

[13] The defendant has never accepted that her son’s death was other than murder. She believes his death is linked to that of her brother as a result of the scandal in Taiwan concerning the purchase of naval vessels from France.

[14] There were some unexplained circumstances related to Yang’s death and the defendant was dissatisfied with the police investigation, Coroner’s investigation, and autopsy. The defendant was unsuccessful in her efforts in Montreal to have the police investigate more fully, hold an inquest into his death, or to review or revise the Coroner’s investigation and autopsy report. The defendant however remained convinced that she had evidence that her son’s death was murder, linked to the earlier murder of her brother.

[15] In particular the defendant relied upon the view of Dr. Yang Jih-Song, the supervisor of the Coroner’s office of Taiwan Criminal Investigation Bureau, from a review of materials on Yang’s death that he had been “asphyxiated” and that he might have been murdered.

[16] In the summer of 1998, in her continuing effort to obtain what she considered justice for the murder of her son, she contacted SUCCESS, a Chinese Society dedicated to the assistance of immigrants, and they referred her to the plaintiff as someone who might be able to help. The defendant telephoned Loh a few days prior to July 13, 1998 and told him she was trying to discover the cause for her son’s death. She said he had died in Montreal and his death was ruled accidental or suicide, but she believed it was murder. The defendant told Loh of her brother’s murder in Taiwan as a result of scandal involving the Lafayette frigate purchase.

[17] Loh had heard of her brother’s death before from international media reports and was both curious and sympathetic regarding Yang’s death. He asked the defendant to send him any material she had regarding the matter, and he received faxed materials from her.

[18] Loh called upon a friend, Larry Laoi, an R.C.M.P. officer, to see if he felt there might be merit to the defendant’s beliefs regarding her son’s death. Mr. Laoi was knowledgeable and had an interest in matters of political corruption or wrong-doing. An appointment was arranged for the defendant to come to Loh’s office July 13, 1998 where she met with Loh and Larry Laoi.

[19] Several reasons why Yang’s death might be related to her brother’s prior murder were considered. Loh and Laoi were sympathetic, but not convinced that Yang was murdered or that the evidence was strong enough to have the Montreal police re-open Yang’s case.

[20] I accept that at all times the plaintiff Loh was acting in his professional capacity as a lawyer. The defendant was told that there would have to be hard evidence that the investigation was flawed or expert opinion that Yang’s death was not accidental or suicide. They required an investigator to look into several matters and needed an expert report from a pathologist regarding issues concerning the cause of death.

[21] There was discussion that when matters had been investigated and the required expert opinion obtained, should the evidence then support a review of Yang’s death, one of the methods that could then be used to try to have the case re-opened would be to have a press conference, which would publicize the matter, arouse interest, and apply pressure to authorities. I reject the defendant’s evidence to the effect that the plaintiff made an unconditional promise that he would hold a press conference.

[22] Loh explained the need for a private investigator to be hired and a pathologist retained, both at a significant cost. The defendant advised that money was no problem. She provided an initial retainer cheque for $1,000 and, following their second meeting a few days later, a further cheque for $6,000. Those monies were general retainer funds which included, but were not solely limited to, funds to hire an investigator and retain a pathologist.

[23] In mid-August 1998, Loh turned over the conduct of the file to Ms. Teng, an associate lawyer in the firm who also spoke Mandarin. Loh thereafter had little personal involvement in the matter apart from some telephone calls from the defendant or discussion with Ms. Teng, until mid-1999 when the defendant complained of the expert opinion of the pathologist, of the private investigator’s work and report, and wanted Loh to hold a press conference, indeed demanding, that he hold a press conference.

[24] Loh recalls advising the defendant that the reports of the pathologist and the private investigator gave no solid base to take the matter further and he spoke with Ms. Teng about terminating the relationship.

[25] I do not accept the defendant’s evidence that the plaintiff was not acting in his professional capacity as a lawyer, but rather as Chairman of SUCCESS and that he promised to assemble a team of volunteers to work on her behalf. The defendant contacted him at his law office and made an appointment to meet with him. She advanced a retainer and authorized him to hire an investigator and a pathologist. Accounts for services were rendered and paid without complaint. When Ms. Teng was assigned to the file there was no question she was not a volunteer. The defendant on many occasions directed Ms. Teng to write a “lawyer’s letter”. There was no suggestion or complaint made until this proceeding that the plaintiff was not acting in his professional capacity.

[26] Ms. Teng upon assuming the conduct of defendant’s file arranged for Dr. Ferris, a highly regarded and experienced pathologist to provide an opinion on the cause of Yang’s death and the autopsy report. She also arranged to retain Mr. Connelly, a former R.C.M.P. officer, as an investigator. She obtained reports from each of Dr. Ferris and Mr. Connelly by early November 1998. Dr. Ferris found no evidence to suggest homicide. Mr. Connelly, on a review of the police, coroner, pathologist and other reports, outlined a number of matters that required clarification. Mr. Connelly consulted with an acquaintance in the R.C.M.P. who had experience in the investigation of suspicious deaths who felt that there should have been further investigation of Mr. Yu, a person who the defendant felt was linked to the murder of Yang, in light of possible international implications and tie to the death of his uncle in Taiwan. Mr. Connelly also consulted a senior coroner in British Columbia who suggested that “…because of many unanswered questions he probably would have held an inquest”. Mr. Connelly suggested that perhaps television investigative shows like Fifth Estate or W-Five might be contacted to see if they would be interested in pursuing the matter.

[27] Ms. Teng, from November of 1998 through to September of 1999, dealt with several matters at the request and direction of the defendant. She dealt with Dr. Ferris as to the possibility he might revise his opinion on consideration of further information, but he advised her he felt that would be highly unlikely. Mr. Connelly was instructed on further investigation.

[28] In January 1999, Mr. Connelly reported on his investigation regarding date discrepancies and procedures regarding the transportation and burial of Yang’s body by Valley View Memorial Gardens, Armstrong Funeral Home and Air Canada. He concluded that:

… I now feel very confident the concerns regarding dates on forms and waybills have been fully explained and should not be a consideration in further investigations.

[29] He felt that the two funeral homes “…operated in a most professional manner and have been above reproach in their handling of this delicate matter”. The defendant was not accepting of this view and instructed the investigation be terminated except for two matters relating to the ownership of Yang’s burial plot at Valley View Memorial Gardens, and “booking data” regarding the Air Canada Way Bill. In fact, however, the defendant continued to instruct Ms. Teng in regard to a myriad of different matters.

[30] Ms. Teng met with the defendant in person and by telephone conference, engaged in extensive correspondence and telephone communications with representatives of Air Canada, Valley View Memorial Gardens and Armstrong Funeral Home concerning issues regarding the transfer of Yang’s body to British Columbia, the role of Mr. Yu in the transportation and burial, and the ownership of the burial plot. The defendant was given comprehensive advice by Ms. MacDonald of the plaintiffs’ firm regarding possible civil actions against Mr. Yu, Valley View Memorial Gardens and Armstrong Funeral Home. The defendant did not wish the plaintiffs to act for her in civil actions she wished to pursue.

[31] Ms. Teng arranged for the defendant to consult another lawyer, Mr. Kiselbach, regarding a civil action against Mr. Yu, and she even accompanied the defendant to the meeting. Mr. Kiselbach needed more information to provide an opinion; however, in his opinion, costs of any civil action would in any event far outweigh any economic gain.

[32] Exhibit 8 is the plaintiff firm’s account for the period November 3, 1998 to September 9, 1999, and it gives a detailed history of the services performed in this period.

[33] Although Ms. Teng had advised the defendant the plaintiffs could no longer assist her, she did continue to help the defendant by arranging for her to see another lawyer, Mr. LeDressay. On October 14, 1999 the defendant paid a $5,000 retainer to him so he could begin to review the matter and provide an opinion. Later the same day the defendant had someone phone Mr. LeDressay’s office and tell him not to use more than $500 of the retainer. The retainer was immediately returned in full to the defendant with written confirmation Mr. LeDressay would not be acting for the defendant in respect of any matter.

[34] Ms. Teng advised the defendant there was no one else to whom the plaintiffs could refer her. She seemed fine and said she would find another lawyer. The very next day however the defendant was disruptive of the plaintiff’s office, yelled and screamed at staff, seemed irate and desperate, and was threatening to hold a press conference outside the plaintiff’s offices. She threatened to sue them unless they drafted a Writ of Summons for her.

[35] The defendant wanted to sue the funeral homes and Mr. Yu and believed there was a possible time limitation of three years from the date of her son’s death. Ms. Teng by this time felt intimidated and pressured by the defendant and agreed to help her by drafting a Writ of Summons. The defendant was given the draft of the Writ on October 21, 1999, and was told the firm no longer acted for her. She was told that the Writ must be filed and that she would have one year to serve the Writ after she had filed it.

[36] The defendant also complained to Ms. Teng that she wasn’t given a 50% discount on her account for services as promised. Ms. Teng told her she had made no promise to her and had no knowledge of any arrangement to reduce her fees by 50%, and that she had no authority to reduce accounts. The defendant has not paid the last two statements of account and they were long ago written off without attempt to collect.

[37] The defendant, after filing the draft Writ, returned again to the plaintiffs and demanded that Air Canada also be added as a party (defendant). The Writ had already been filed, and therefore Ms. Teng again assisted the defendant by drafting a Notice of Discontinuance and a new Writ of Summons. Exhibit 66, a very specific letter dated October 27, 1999 as to the termination of their relationship, was also delivered at this time.

[38] There is no doubt the defendant was a very difficult client. I accept the evidence of Ms. Teng that the defendant’s conduct was erratic during their relationship, with the defendant sometimes being very kind, at other times very abusive, loud, impolite, and disruptive to staff. At times, she was totally out of control and intimidating to both Ms. Teng and the staff. Her conduct was unpredictable. The defendant was unhappy that the plaintiffs had not developed evidence that her son was murdered.

[39] The defendant continued to call the plaintiff’s office for two years following October 1999 in a pattern of constant harassment. Mr. Loh and Ms. Teng refused her calls and the defendant would yell and be abusive to staff. The police suggested a log of the calls be kept, and Exhibit 67 is a partial log of the calls; the record of the first year is missing.

[40] Loh tried to ignore the defendant’s conduct in the hope that it would cease. The defendant’s verbal attack on Loh on September 16, 2003 when he was appearing on the television Hot Talk Show which is broadcast across Canada on the Talentvision television network, however, led him to conclude the defendant would never cease her harassment and defamation, and this action had to be pursued.

DEFAMATIONS

[41] The alleged defamatory statements in issue were first published on a web site from at least November 2000 to a time in 2005 (web site #1) when the web site was closed. Similar defamations were then published on a new web site that started in 2005 (web site #2). The plaintiffs also allege defamation in respect of a written notice of a media conference called by the defendant to take place at the plaintiffs’ office on October 28, 1999, and on a placard worn by the defendant in Chinatown in Vancouver in November 2000, and on occasion near the plaintiff’s law offices. The defendant does not deny the publications occurred.

[42] The plaintiffs have proven the defendant from at least November 2000 through to 2005, controlled a web site on which she published defamatory words of the plaintiff Loh in the way of his occupation, business, profession and office.

[43] The relevant textual portions as extracted from the web site are:

(a) as a header on each page of web page contained within the Web Site; “The MP Candidate Loh, Mason of Liberal party of Canada is exactly a big liar”;

(b) in the body of such web page;

I, younger sister of Taiwan navy captain Yin Ching-Feng’s … and mother of Canada McGill University student Yang Yi-Li’s …, hope the Canada government could respect the law and human right and to re-try Yang Yi-Li’s case for avoiding any case happening like Yang’s in the future to let the voters understand the MP Candidate Loh Mason … of Liberal party is exactly a big liar.

D. During the past 4 years, I had been appealing for help in Taiwan and Canada. My petition letters to Canada were in vain. I was even cheated by the lawyers like Loh Mason, they made me lose a big amount of money to lawyers but still couldn’t get any way to solve my son’s case. I hope the Canada press and MP could help me, a weak woman without any background, to get the justice.

2. Loh Mason, a MP Candidate of Liberal party, is a big liar.

A. In July 1998, Loh Mason being the chairman of Success … pretended to help me. He said he would hold a press conference for revealing Yang’s case to the public and would report Yang’s case to RCMP of B.C. for me, but at last he didn’t do any of them. In fact, he knew that B.C. lawyer is not eligible to present a lawsuit in the court of Quebec, but he still accepted Yang’s case and worked with the immigration lawyer Ms. Bonnie Teng to handle criminal case of Yang’s, and then charged me $12,000 as lawyer fee for various reason. Loh Mason was not an honest lawyer and not a man of justice.

a. In early July 1998, I requested the help of Success … for my son’s case. Success recommended Loh Mason to me. I called Loh Mason and asked him to help me. Loh Mason and Mr. Liao of RCMP had an appointment with me and pretended to help me. Loh Mason said he would hold a press conference for revealing Yang’s case to the public and would report Yang’s case to RCMP for me, thus I agreed to cooperate with him.

b. Loh Mason charged me lawyer fee at a total of $12,000 paid under the following checks: July 13, 1998 TD Bank check no. 286 $1,000, July 16 ,1998 TD Bank check no. 287 $6,000 and July 28, Royal Bank check no. 116 $4,000.

c. On Aug. 8, 1998, without any notice to me, Loh Mason and worked with the immigration lawyer Ms. Bonnie Teng to handle criminal case of Yang’s, and hired Mr. John Connolly (retired superior of Mr. Liao’s of RCMP) to my detective (proof: The detective Mr. John Connolly’s report dated Oct. 27, 1998 indicated that Loh Mason, Ms. Teng and detective himself [had] a meeting on Aug. 8, 1998)

B. Loh Mason possessed the following documents but he didn’t hold the press conference for revealing Yang’s case to the public and report Yang’s case to RCMP of B.C. for me.

…

C. On Oct. 28, 1999 I protested in front of Loh Mason’s office since he didn’t keep his promise to hold the press conference for revealing Yang’s case to the public and report Yang’s case to RCMP for me. This news was on first page of SING TAO DAILY dated Oct. 29, 1999.

…

a. RE lawyers Loh, Mason and Wang, Wallace I asked other lawyers in Vancouver to learn the standard law process, that is before submitting a civil lawsuit to the court, Yang’s case should be reported to RCMP. They considered it was incredible that Loh, Mason helped me to submit WRIT OF SUMMONS to The Supreme Court of B.C. and Wang, Wallace sent WRIT OF SUMMONS to the above mentioned defendants but Loh and Wang didn’t tell me the standard law process and even rejected me to report Yang’s case to RCMP. Loh and Wang knew their acts violated the standard law process but they still did it.

…

[Note 4]: Loh, Mason was born in Taiwan. His slogan in the election competition is “Chinese should help Chinese” but what he did is Chinese cheated Chinese (Taiwanese). The most pitiful thing of Loh, Mason is that as of today, he still doesn’t admit his fault and turn over a new leaf.

…

Nov. 25, 2000 Loh Mason, a MP Candidate of Liberal party, is a big liar.

Mr. Mason didn’t keep his promise to hold the press conference for revealing Yang Yi-Li’s murder case to the public and report Yang’s case to RCMP for me.

[44] A Chinese version of the defamatory words was also published by the defendant on the web site as reproduced in paragraph 8 of the Amended Statement of Claim.

[45] The defendant created and maintained web site #2 commencing in 2005 and continued publication of the same defamatory words.

[46] On October 28, 1999 the defendant caused to be distributed to various members of the Chinese media a written notice of a press conference to be held at the plaintiffs’ offices. A translation from Chinese of the defamatory words in that notice concerned the plaintiff Loh in the way of his occupation, business, profession and office is:

Yang’s mother protests lawyer, Mason Loh not fulfilling his promise, not helping the family to hold the press conference and not assisting the family to report to the RCMP.

[47] In November 2000, when Loh was a Liberal candidate in the Federal Election for the riding of Hastings East, the defendant attended in the Chinatown area of Vancouver wearing a placard bearing defamatory words, which translated to English are words to the effect: “Loh is a big liar, Chinese cheated Chinese”.

[48] On September 16, 2003 during a televised talk show (the Hot Talk Show) the defendant phoned in and spoke defamatory words of the plaintiff Loh in the way of his occupation, business, profession and office as set forth in paragraph 13 and 14 of the Amended Statement of Claim.

[49] The defendant spoke the words “…Mason Loh is in fact a big deceiver. In 1998 while Mason Loh was the President of SUCCESS he deceived Mrs. Yang”.

[50] The defendant, although admitting the instances of publication of the alleged defamations, suggests that being called a “liar” to persons of Chinese background is not as serious as it apparently is in the Western culture. In regard to the placard in Chinatown, the defendant testified she had been promised by one of Loh’s campaign workers that he would refund her legal fees, but he did not. The defendant offers no proof of this allegation and I do not accept it occurred.

[51] Overall however the defendant argues that the defamatory statements are true.

[52] The natural and ordinary meaning of the defamatory words in issue are that Loh is a dishonest and deceitful person, and that in his capacity as the defendant’s lawyer (and by innuendo through the plaintiff Loh’s corporation and his firm’s representation of her):

· he cheated her

· he pretended to help her but did not

· he promised to hold a press conference regarding Yang’s death and promised to report the matter to the R.C.M.P., then reneged on both his promises

· he charged her unreasonable and excessive fees

· he hired an investigator without authority

· he failed to meet the usual standard of practice of lawyers practicing in B.C

· he was dishonest in his election campaign and in his role as a Liberal party candidate, and that

· he deceived the defendant in his capacity as Chairman of SUCCESS.

DEFENCE AND COUNTERCLAIM

[53] The defendant counterclaims against the plaintiffs on the primary ground that Loh, by use of his position as Chairman of SUCCESS, obtained “Yang’s case” by “cheating” her. The defendant’s support of this counterclaim is also the basis of what I perceive she alleges as being a defence of truth of the plaintiffs’ defamation allegations she made against Loh. The counterclaim and defence to the alleged defamation claims have therefore been intertwined by the defendant in her evidence and argument.

[54] A minute examination of the plaintiffs’ file and their actions in respect of every detail of their work on the file certainly reveal there are instances of wrong dates being recorded, inaccurate or incomplete notes being taken, and no record of some conversations preserved. I do not find occurrences of mistakes unusual. Ms. Teng may on occasion not have responded or replied as quickly as the defendant would have liked. Ms. Teng may have pursued getting documents or information differently than the defendant suggested. She may not have reported instantly to the defendant as to some information or document received, but waited for something more complete before reporting so as to make it more meaningful. Time spent on the file was not recorded but later estimated; hence many matters were not billed as they were not recorded. The need for translation of documents on occasion caused delay.

[55] The defendant however appears to try to found a defence of truth to the defamations at issue by branding these types of mistakes or actions as being “lies”, “cover ups”, “fraud”, “cheating” and “dishonesty” and the like. The defendant appears to argue all are part of a conspiracy to steal Yang’s case from her and to profit from the notoriety of involvement. I find the defendant’s allegations, reasoning, and argument completely devoid of merit.

[56] I have considered the whole of the evidence, and in particular the mass of allegations in the defendant’s pleadings, the myriad of documents introduced into evidence by her, her own evidence, matters of her cross-examination, and the witnesses she called, and find no evidence to support her attempt to show truth to the defamations at issue, nor the subject of her allegations by counterclaim.

[57] I reject entirely the defendant’s allegations, made in a myriad of ways, that the plaintiffs obtained Yang’s case by cheating her. Loh never unconditionally promised he would hold “a main stream media conference”; that was a matter reserved to consideration of further investigation and expert opinion. The defendant was aware that throughout the plaintiff was acting as a lawyer and was not a volunteer assembling a team of persons to act without charge on her behalf.

[58] The plaintiffs did not renege on any “lawyer duty”, intentionally delay work, or inflate fees. The plaintiffs did not promise a 50% discount on fees at anytime. In fact, however, the first account rendered was reduced by Loh of his own volition, as a reflection of his sympathy with the defendant.

[59] The suggestion the plaintiffs wanted Yang’s case to exploit it for reason of personal gain, publicity and notoriety, I find, is absurd.

INJUNCTION

[60] The plaintiffs seek an injunction to prohibit further or similar publication of defamatory statements. The defendant’s persistent defamations over several years entitle them to the relief requested. The defendant is restrained from publishing in any manner, directly or indirectly, any statement that is defamatory of the plaintiff Mason Loh, Mason Loh Law Corporation, or the law firm Loh & Company, or of any lawyer practicing with or associated to those entities.

DAMAGES

[61] The defendant has been both persistent and versatile in her continued defamatory harassment of the plaintiffs.

[62] The defendant has defamed the plaintiff Loh in respect of his trade, profession and business as a practicing lawyer, as a federal political candidate seeking office, and in his capacity as a high profile community leader. General damages for both libel and slander in these circumstances are presumed and are awarded at large. [Gatley on Libel and Slander, 9th Edition (London: Street & Maxwell, 1998) p. 693; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129 at ¶164]

[63] The purpose of an award of general damages is to compensate for the pain and distress, vindication of reputation, injury to pride and self confidence and social and economic damage which cannot be easily proven. [Brown v. Cole (1998), 61 B.C.L.R. (3d) 1 (C.A.), [1999] 7 W.W.R. 703 at ¶107, leave to appeal to S.C.C. dismissed (1999), 243 N.R. 400, [1998] S.C.C.A. No. 614]

[64] In Hill v. Church of Scientology, supra, Mr. Justice Corry observed at ¶187 that:

… The assessment of damages in a libel case flows from a particular confluence of the following elements: the nature and circumstances of the publication of the libel, the nature and position of the victim of the libel, the possible effects of the libel statement upon the life of the plaintiff, and the actions and motivations of the defendants. It follows that there is little to be gained from a detailed comparison of libel awards.

[65] I find on the evidence of the plaintiff Loh and supported by the evidence of Cpl. Laoi, that the plaintiff Loh was very highly regarded and respected in the Chinese community, and that his reputation in the community suffered from the defamations in issue.

[66] The nature of the defendant’s defamation was extremely serious, as it alleged in various forms that Loh was dishonest as a lawyer, political candidate, and community leader. In Hill v. Church of Scientology, supra, Mr. Justice Corry explained the seriousness of defamation to a lawyer at ¶177:

… For all lawyers their reputation is of paramount importance. Clients depend on the integrity of lawyers, as do colleagues. Judges rely upon commitments and undertakings given to them by counsel. Our whole system of administration of justice depends upon counsel's reputation for integrity. Anything that leads to the tarnishing of a professional reputation can be disastrous for a lawyer.

[67] The methods of publication by the defendant were equally extensive employing internet publication, placards, and written notice of a media conference.

[68] The extent of the effect upon the plaintiff Loh in the community cannot be easily gauged. He was certainly troubled and upset by the inquiries and comments made to him over the years by persons who had seen the defendant’s web site, observed her at or near his campaign offices and all candidates meetings and media persons who had contacted him. He was very upset and embarrassed in the incident when the defendant called the Hot Line television program on which he was a guest.

[69] The defendant has also never apologized, and continued through the trial to assert that the defamatory allegations she made are true.

[70] The conduct of the defendant throughout was, in my view, a deliberate and calculated intent to damage the plaintiff Loh’s reputation.

[71] The defendant gave as motive for her conduct that she was just trying to get Loh to “resolve matters with her”, which I understood her to mean to compel him to go to the media and suggest her son’s death was murder and give publicity to his death. In another context, I understood her to mean that she wanted the plaintiffs to repay all monies they had received from her. I have no doubt the defendant is an intelligent woman. I take from the evidence, and from her presence at trial, that she is forceful and can be aggressive, stubborn and intimidating.

[72] I do not consider she had any justifiable reason for her conduct and in my view she was motivated by malice; she was intent upon punishing the plaintiffs for not doing as she wished.

[73] Aggravating circumstances will increase general damages to be awarded. In my view there are many serious aggravating circumstances here. The defendant continued through trial to assert the serious and diverse allegations that Loh was dishonest. Some of the detailed allegations the defendant uses in her pleadings to expand upon her allegations of dishonesty include that Loh got Yang’s case by fraud, that he swindled her, cheated her openly, covered up reports, lied, hired detectives in secret, forged documents, and delayed reports.

[74] The defendant, at trial, engaged in protracted cross-examination continuing the outrageous allegations she had made of various forms of dishonesty.

[75] The defendant in her internet website (web site #2) only ceased defamatory comment of the plaintiffs on the eve of the original trial date of October 15, 2005. There has never been an apology, nor a commitment to cease defamation of the plaintiffs.

[76] The defendant has harassed the plaintiffs and staff with her telephone calls and attendances at their offices, appearances at election meetings and campaign offices displaying placards during the 2000 federal election, and by holding a media conference at the entrance to the plaintiff’s law offices.

[77] Mr. Justice of Appeal Smith in LaPointe v. Summach, [2003] B.C.J. No. 3033, 2003 BCCA 709, succinctly summarized the proper approach to assessment of general damages and aggravated damages at ¶23:

General damages and aggravated damages are not separate heads of damages. The award of damages was for aggravated general damages. I agree with my colleague presiding that the award of $50,000 for general aggravated damages in this case cannot be said to be clearly wrong.

[emphasis added]

[78] Considering the relevant factors I assess general damages of $50,000 for pain, distress and rehabilitation of reputation, increased by $25,000 for aggravating circumstances, making an award of $75,000 for aggravated general damages.

[79] I have considered the issue of punitive damages and find that is appropriate to the circumstances of this case, given the persistent and reckless conduct of the defendant over an extended period of time, which I regard as being vindictive, reprehensible and malicious. [Huff v. Price (1990), 51 B.C.L.R. (2d) 282 (C.A.)] There is need to sanction the occurrence of this type of conduct by the defendant, and as a deterrent to others. The defendant chose to resort to libel and slander to deal with complaints when it was open to her to tax accounts, complain to the Law Society, or pursue civil action.

[80] The assessment of punitive damages must have regard for the sufficiency of the quantum of aggravated general damages and, having regard for that balance, I assess punitive damages against the defendant at $10,000.

[81] There is but one judgment to the plaintiffs and no separate judgment for each named plaintiff. I consider this action was directed only to the defamation of Loh personally, in his corporate identity, and to him in his law practice firm. I appreciate the evidence discloses that associate lawyers Ms. Teng, and perhaps Ms. MacDonald, were also defamed by the defendant, but if they wished to pursue damages they must do so separately.

COURT ORDER INTEREST

[82] The plaintiffs are entitled to Court Order Interest. The defamation of the plaintiffs first occurred at the press conference called by the defendant for October 29, 1999 outside the door of the plaintiffs’ offices. The publication of defamatory words on the internet website started around November 2000, and continued over most of the next five years. I will therefore allow Court Order Interest at Registrar’s rates to commence January 1, 2001.

COSTS

[83] The defendant’s defamation of the plaintiffs has occurred for over six years. The defendant’s case was without merit either in fact or at law and there was no evidence to support the serious defamatory allegations advanced by the defendant against the plaintiffs.

[84] The defendant’s conduct at trial was insulting to witnesses, prolonged the proceeding unnecessarily with many of the Court’s suggestions and directions ignored, and showed that she has no regret for her several libellous and slanderous statements about the accused. The defendant was even rude and impolite throughout the trial to counsel for the plaintiffs, Ms. MacDonald, who tried to assist the defendant with document and exhibit management.

[85] The law as to special damages is comprehensively reviewed by Stromberg-Stein J. in Kashani v. Dhalla, 2002 BCSC 315. The defendant’s conduct was reprehensible, deserving of rebuke and the plaintiffs are entitled to recover special costs.

“R.R. Holmes, J.”
The Honourable Mr. Justice R.R. Holmes

Citation:	*Loh v. Yang,*
	2006 BCSC 1131