Ager v. Canjex Publishing Ltd. et al., 2005 BCCA 467

• Judge: Finch, C.J.B.C., Rowles and Saunders, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 28, 2005
• Jurisdiction: British Columbia
• Citations: 2005 BCCA 467;(2005), 217 B.C.A.C. 160 (CA)

Ager v. Canjex Publ. Ltd. (2005), 217 B.C.A.C. 160 (CA);

    358 W.A.C. 160

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. OC.006

Charles A. Ager (respondent/plaintiff) v. Canjex Publishing Ltd. d.b.a. Canada Stockwatch, John Woods and Brent Mudry (appellants/defendants)

(CA030988; 2005 BCCA 467)

Indexed As: Ager v. Canjex Publishing Ltd. et al.

British Columbia Court of Appeal

Finch, C.J.B.C., Rowles and Saunders, JJ.A.

September 28, 2005.

Summary:

The plaintiff sued the defendants for damages for defamation.

The British Columbia Supreme Court, in a decision reported at [2003] B.C.T.C. 891, allowed the action and awarded general and aggravated damages and special costs. The defendants appealed and applied for a stay of execution.

The British Columbia Court of Appeal, per Hall, J.A., in a decision reported at 188 B.C.A.C. 209; 308 W.A.C. 209, granted the stay upon the posting by the defendants of $275,000. The plaintiff applied to vary the order.

The British Columbia Court of Appeal, in a decision reported at 189 B.C.A.C. 119; 309 W.A.C. 119, allowed the application. The defendants sought to adduce fresh evidence on appeal.

The British Columbia Court of Appeal dismissed the application to adduce fresh evidence and allowed the appeal to the extent only of setting aside the order for aggravated damages.

Damage Awards - Topic 632

Torts/Quebec responsibility - Injury to the person - Libel and slander - [See third Libel and Slander - Topic 4423 ].

Damages - Topic 907

Aggravation - General - Aggravated damages - Libel and slander - [See Libel and Slander - Topic 4007 and second Libel and Slander - Topic 4428 ].

Damages - Topic 2524

Torts affecting the person - Libel and slander - Considerations in assessing damages - [See second and third Libel and Slander - Topic 4423 ].

Libel and Slander - Topic 684

The statement - What constitutes defamatory statements - Libel - What constitutes a defamatory statement - Three articles referring to the plaintiff geophysicist were published in "Canada Stockwatch" - The plaintiff complained that the articles were defamatory because they implicated him in salting or in selling a property known by him to have been salted - The trial judge agreed - The British Columbia Court of Appeal held that the trial judge's conclusion was reasonable given the description of the plaintiff in one article as "vendor of the salted property" - While a discerning reader might also take the alternative meaning that he sold property that was later salted, the question for the court was not whether more than one meaning could be taken, but whether a reasonable reader would take the defamatory meaning ascribed to the words by the trial judge - Considering the audience to whom the words were communicated, it was a reasonable conclusion that a reasonably thoughtful and informed reader would find that the words had that meaning - See paragraphs 19 to 23.

Libel and Slander - Topic 3041

Defences - Privileged reports - Judicial proceedings - General - A text author stated the following with respect to the privilege of report of legal proceedings: "It has been said that for privilege to apply a report 'must be strictly confined to the actual proceedings in court, and must contain no defamatory observations or comments from any quarter whatever, in addition to what forms strictly and properly the legal proceedings.' This is true if, e.g. the report contains comment inextricably mixed with what happened in court or remarks plainly unconnected with the proceedings, but the proposition needs to be qualified in two ways. First, if an article contains an accurate report and comment which is separable from it, the report may be defended as a fair and accurate report and the comment as fair comment. Secondly, a more liberal view is now taken of what forms the 'legal proceedings' than was once the case." - The British Columbia Court of Appeal accepted this description - See paragraph 32.

Libel and Slander - Topic 3041

Defences - Privileged reports - Judicial proceedings - General - The British Columbia Court of Appeal stated that "it is now clear that a defamatory publication can be defended on the basis of both fair reporting and fair comment, with one defence applying to some portions and the other defence to other portions." - See paragraph 34.

Libel and Slander - Topic 3101

Defences - Fair comment - General - [See second Libel and Slander - Topic 3041 ].

Libel and Slander - Topic 3114

Defences - Fair comment - What constitutes fair comment - Three articles referring to the plaintiff geophysicist were published in "Canada Stockwatch" - The plaintiff complained that the articles were defamatory because they implicated him in salting or in selling a property known by him to have been salted - The defendants claimed, inter alia, that portions of the statements complained of were subject to the privilege of legal proceedings and others were fair comment - The trial judge rejected the defences and allowed the action - The defendants appealed - The British Columbia Court of Appeal dismissed the appeal from liability - The court held that the trial judge did not err in holding that the defence of fair comment could not apply because the words that were said to be comment were too entangled with the report of legal proceedings to have that protection - See paragraphs 38 to 48.

Libel and Slander - Topic 3118

Defences - Fair comment - Evidence and proof - [See Libel and Slander - Topic 3114 ].

Libel and Slander - Topic 4007

Malice - General - What constitutes malice - The plaintiff, a geophysicist, sold an interest in mineral claims known as the "Josh" property, to Delgratia Mining Corp. - When an expert report said that the property was without mineral value and another said that it was valueless and referred to "salting", the value of Delgratia shares plunged - Litigation concerning the collapse ensued - The plaintiff was not a party to the Delgratia litigation - The plaintiff's lawyer was Lunney - The plaintiff alleged that three articles that referred to the Delgratia litigation and to him were defamatory because they implicated him in salting or in selling a property known by him to have been salted - The trial judge agreed and awarded the plaintiff $200,000 general damages and a further $100,000 in aggravated damages because of articles published during and after the Delgratia trial, ostensibly as reports upon the trial - The reporting included descriptions of the plaintiff's demeanor and answers, reference to the plaintiff as "controversial" and reference to "another" of Lunny's "controversial" clients described as an alleged drug money launderer and Hells Angels associate, allegedly linked with the contract killing of four underworld figures - The British Columbia Court of Appeal allowed an appeal against the award of aggravated damages where, inter alia, the trial judge had not made the necessary finding of actual malice to support the award and the court declined to itself find actual malice - Further, the plaintiff had been fully compensated by the $200,000 general damage award - See paragraphs 65 to 80.

Libel and Slander - Topic 4423

Damages - General damages (incl. measure of) - Elements and considerations - Three articles referring to the plaintiff geophysicist were published in "Canada Stockwatch" - The plaintiff complained that the articles were defamatory because they implicated him in salting or in selling a property known by him to have been salted - The trial judge agreed - On appeal from the damages awarded, the defendants submitted, inter alia, that certain evidence by the plaintiff was opinion evidence and should not have been admitted - The plaintiff adduced evidence as to the following: the presence of gold on the property; his opinion of the assay method that produced the high gold value later repudiated; the property not having been salted; and the meaning of certain words - The British Columbia Court of Appeal held that the disputed evidence was properly admitted as relevant to the question of the plaintiff's character and tended to negate the contention that he was a fraudster - See paragraphs 50 and 51.

Libel and Slander - Topic 4423

Damages - General damages (incl. measure of) - Elements and considerations - A trial judge held that while general evidence of bad reputation was admissible and relevant to an assessment of damages for defamation, evidence of particular acts was not admissible on the issue of reputation - The British Columbia Court of Appeal held that the trial judge erred - The court stated that "To the extent that the factors relied upon in mitigation of damages were otherwise particularized in the statement of defence, that they were supported by evidence, and that they are directly connected to the subject matter of the defamatory publication, they were factors to be considered in an assessment of damages" - See paragraphs 55 to 60.

Libel and Slander - Topic 4423

Damages - General damages (incl. measure of) - Elements and considerations - The plaintiff, a geophysicist, sold an interest in mineral claims known as the "Josh" property, to Delgratia Mining Corp. - When an expert report said that the property was without mineral value and another said that it was valueless and used the term "salting", the value of Delgratia shares plunged - It was a "debacle"- Litigation concerning the collapse ensued - The plaintiff was not a party to that litigation - The plaintiff alleged that three articles that referred to the litigation and to him were defamatory because they implicated him in salting or in selling a property known by him to have been salted - The trial judge agreed and awarded the plaintiff $200,000 general damages - On appeal, the defendants submitted, inter alia, that the damages did not reflect the negative consequences of the following facts: those relating to Delgratia's acquisition of the Josh property; the overly positive assay results and subsequent disavowal of the same with the consequent fall of the stock value; the plaintiff's role in the events; the odium that attached to the assayer; and the prior and proper publicity of these events - They observed that the plaintiff himself, agreed that the scandal was the "biggest embarrassment of my life"- The British Columbia Court of Appeal held that while it might have awarded less, the trial judge did not err in assessing general damages at $200,000 - See paragraphs 52 to 64.

Libel and Slander - Topic 4428

Damages - General damages (incl. measure of) - Aggravated damages - [See Libel and Slander - Topic 4007 ].

Libel and Slander - Topic 4428

Damages - General damages (incl. measure of) - Aggravated damages - A trial judge in a defamation case awarded aggravated damages because of, inter alia, the late abandonment of much of the defence of truth - The British Columbia Court of Appeal stated that "While it is clear that conduct during the action, including persistent assertion of truth, may support aggravated damages as it may be a basis on which to conclude there is actual malice, there is some danger in awarding aggravated damages simply because a defence was asserted and then abandoned. Repetition of defamatory words is undesirable and a defence of truth should not be asserted without a sound basis. So too, however, it is undesirable to fetter a party's ability to present a full case to the court or to discourage abandonment of positions considered erroneous (or merely secondary). The requirement for aggravated damages of a finding of actual malice acts as a balance to these competing tensions." - See paragraph 82.

Libel and Slander - Topic 4448

Damages - Mitigation - Evidence re plaintiff's character - [See second Libel and Slander - Topic 4423 ].

Cases Noticed:

Color Your World Corp. v. Canadian Broadcasting Corp. et al. (1998), 106 O.A.C. 279; 38 O.R.(3d) 97; 156 D.L.R.(4th) 27 (C.A.), leave to appeal dismissed (1998), 232 N.R. 398; 119 O.A.C. 397 (S.C.C.), refd to. [para. 20].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 21].

Risk Allah Bey v. Whitehurst (1868), 18 L.T. 615 (Q.B.), refd to. [para. 29].

Delegal v. Highley (1837), 6 L.J.C.P. 337; 132 E.R. 677, refd to. [para. 29].

Taylor-Wright et al. v. CHBC-TV et al. (1999), 4 B.C.T.C. 1 (S.C.), affd. (2000), 144 B.C.A.C. 295; 236 W.A.C. 295; 82 B.C.L.R.(3d) 50; 2000 BCCA 629, refd to. [para. 34].

Thore v. Mudry et al. (1999), 15 B.C.T.C. 151 (S.C.), refd to. [para. 34].

Kerr v. Conlogue, [1992] 4 W.W.R. 258; 65 B.C.L.R.(2d) 70 (S.C.), refd to. [para. 38].

Vander Zalm v. Times Publishers, Bierman, McLintock and Underhill (1980), 18 B.C.L.R. 210; 109 D.L.R.(3d) 531 (C.A.), refd to. [para. 40].

Jones v. Bennett (1967), 59 W.W.R.(N.S.) 449 (B.C.S.C.), revd. (1968), 63 W.W.R.(N.S.) 1; 66 D.L.R.(2d) 497 (B.C.C.A.), revd. [1969] S.C.R. 277; 2 D.L.R.(3d) 291, refd to. [para. 44].

Mitchell v. Victoria Daily Times (No. 3) (1944), 60 B.C.R. 39 (S.C.), refd to. [para. 44].

Burstein v. Times Newspapers Ltd., [2001] 1 W.L.R. 579 (C.A.), folld. [para. 56].

Scott v. Sampson (1882), 8 Q.B.D. 491 (D.C.), refd to. [para. 57].

Pamplin v. Express Newspapers (No. 2), [1988] 1 W.L.R. 116 (C.A.), refd to. [para. 57].

Speidel v. Plato Films Ltd., [1961] A.C. 1090 (H.L.), refd to. [para. 57].

Brown v. Cole et al., [1999] 7 W.W.R. 703; 114 B.C.A.C. 73; 186 W.A.C. 73; 61 B.C.L.R.(3d) 1 (C.A.), refd to. [para. 61].

Cassell & Co. v. Broome, [1972] 1 All E.R. 801 (H.L.), refd to. [para. 63].

Vogel v. Canadian Broadcasting Corp., [1982] 3 W.W.R. 97; 35 B.C.L.R. 7 (S.C.), refd to. [para. 64].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129, refd to. [para. 73].

Sienema v. British Columbia Insurance Co. (2003), 191 B.C.A.C. 218; 314 W.A.C. 218; 21 B.C.L.R.(4th) 321; 2003 BCCA 669, refd to. [para. 76].

B & A Bobcat and Excavating Ltd. v. Sangha et al. (1999), 118 B.C.A.C. 186; 192 W.A.C. 186; 1999 BCCA 49, refd to. [para. 76].

Authors and Works Noticed:

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed.) (2004 Looseleaf Update, Release 2), vols. 1, pp. 5-5 to 5-16, 5-62 to 5-64 [para. 22]; 2, pp. 14-31 [para. 33]; 15-27 [para. 43].

Gatley, Clement, Libel and Slander (10th Ed. 2004), generally [para. 56]; para. 13.46 [para. 32].

United Kingdom, Supreme Court Procedure Committee, Report on Practice and Procedure in Defamation (1991), generally [para. 57].

Counsel:

D.W. Burnett, for the appellants;

D. Lunny and J.A. Dawson, for the respondent.

This appeal was heard at Vancouver, B.C., on May 4 and 5, 2005, by Finch, C.J.B.C., Rowles and Saunders, JJ.A., of the British Columbia Court of Appeal. Saunders, J.A., delivered the following reasons for judgment for the court on September 28, 2005.