Smith v. Cross, 2009 BCCA 529

JudgeRowles, Kirkpatrick and Neilson, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateSeptember 16, 2009
JurisdictionBritish Columbia
Citations2009 BCCA 529;(2009), 278 B.C.A.C. 262 (CA)

Smith v. Cross (2009), 278 B.C.A.C. 262 (CA);

    471 W.A.C. 262

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. DE.017

John G. Smith (respondent/plaintiff) v. Gregory Paul Cross (appellant/defendant)

(CA035693; 2009 BCCA 529)

Indexed As: Smith v. Cross

British Columbia Court of Appeal

Rowles, Kirkpatrick and Neilson, JJ.A.

November 25, 2009.

Summary:

The plaintiff sued the defendant for damages, alleging that the defendant had falsely and maliciously published defamatory statements about the plaintiff in three e-mails.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. G52, found that the defendant failed to establish a defence of fair comment and that the defendant's malice defeated the defence of qualified privilege. The court awarded the plaintiff $25,000 in general damages, punitive damages of $10,000, interest and costs. The defendant appealed.

The British Columbia Court of Appeal dismissed the appeal.

Libel and Slander - Topic 2988

Defences - Qualified privilege - Loss of - Lack of honest belief or existence of malice - At issue was the alleged sexually inappropriate conduct of a teacher - The plaintiff was a member of the board of trustees in Abbotsford, B.C. - The defendant had a daughter who complained of unwelcome remarks made to her by the teacher - The teacher received discipline letters from the Abbotsford School District in 1995, 1997 and 2000 - The school district did not advise the board about the letters or the teacher's activities until February 2005 - The local media reported the school district's lapse in two newspaper articles that came to the defendant's attention - The defendant published three e-mails that were critical of the board and the plaintiff - The plaintiff sued the defendant for damages, alleging that the defendant had falsely and maliciously published defamatory statements about the plaintiff in the three e-mails - The defendant pleaded qualified privilege - The trial judge held that the defendant's malice defeated the defence of qualified privilege and allowed the action - The defendant appealed, asserting that the trial judge incorrectly applied the test for malice by not considering whether the defendant's dominant purpose was improper and by not considering the defendant's subjective belief in the truth of his statements - The British Columbia Court of Appeal dismissed the appeal - The trial judge concluded that the untrue portions of the e-mails "were published with reckless indifference as to whether or not they were true, thus establishing express malice" - It had to be inferred from the trial judge's conclusion that the e-mails were published with reckless indifference to the truth and that the defendant did not hold a subjective honest belief in the truth of the statements - The trial judge did not explain how he came to the conclusion that the publications were made with reckless indifference, as opposed to with the non-malicious standards of carelessness, impulsivity or irrationality or with foolishness or misapprehension - Nevertheless, malice was a "state of mind" - The question of whether malice was present was a question for the trier of fact - The absence of a specific statement from the trial judge as to how he arrived at the conclusion of reckless indifference did not render the finding unreasonable - On the facts as he found them, there was express malice - That was sufficient to defeat qualified privilege - It was a finding that deserved deference - See paragraphs 24 to 43.

Cases Noticed:

Botiuk v. Bardyn et al., [1995] 3 S.C.R. 3; 186 N.R. 1; 85 O.A.C. 81, refd to. [para. 27].

Botiuk v. Toronto Free Press Publications Ltd. - see Botiuk v. Bardyn et al.

Creative Salmon Co. v. Staniford (2009), 266 B.C.A.C. 182; 449 W.A.C. 182; 307 D.L.R.(4th) 518; 2009 BCCA 61, refd to. [para. 31].

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. 33].

Horrocks v. Lowe, [1975] A.C. 135 (H.L.), refd to. [para. 36].

Cimolai v. Hall et al. (2007), 240 B.C.A.C. 53; 398 W.A.C. 53; 2007 BCCA 225, refd to. [para. 42].

Colvin v. McKay (1889), 17 O.R. 212 (H.C.), refd to. [para. 42].

Fenton v. MacDonald, [1901] 1 O.L.R. 422 (C.A.), refd to. [para. 42].

Ward v. Clark (2001), 161 B.C.A.C. 192; 263 W.A.C. 192; 95 B.C.L.R.(3d) 209; 2001 BCCA 724, refd to. [para. 44].

Authors and Works Noticed:

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed.) (1999 Looseleaf Supp.), pp. 16.2(1) [para. 30]; 16.3(2) [para. 32].

McConchie, Roger D., and Potts, David A., Canadian Libel and Slander Actions (2004), p. 299 [para. 34].

Counsel:

D.W. Burnett, for the appellant;

D.R. Lester, for the respondent.

This appeal was heard on September 16, 2009, at Vancouver, B.C., by Rowles, Kirkpatrick and Neilson, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Kirkpatrick, J.A., on November 25, 2009.

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66 practice notes
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    ...[1979] 1 S.C.R. 1067; Jerome v. Anderson, [1964] S.C.R. 291; Hodgson v. Canadian Newspapers Co. (2000), 49 O.R. (3d) 161; Smith v. Cross, 2009 BCCA 529, 99 B.C.L.R. (4th) 214; Martin v. Lavigne, 2011 BCCA 104, 17 B.C.L.R. (5th) 132; Cimolai v. Hall, 2007 BCCA 225, 240 B.C.A.C. 53; Davies &a......
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    ...Eastern and Northern Ontario and Outaouais, 2018 ONCA 383 at para. 33; Nazerali v. Mitchell, 2018 BCCA 104 at para. 46; Smith v. Cross, 2009 BCCA 529 at para. 34Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 145; Taylor v. Despard, [1956] O.R. 963 at para. 20 [42] A......
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62 cases
  • Bent v. Platnick, 2020 SCC 23
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    ...[1979] 1 S.C.R. 1067; Jerome v. Anderson, [1964] S.C.R. 291; Hodgson v. Canadian Newspapers Co. (2000), 49 O.R. (3d) 161; Smith v. Cross, 2009 BCCA 529, 99 B.C.L.R. (4th) 214; Martin v. Lavigne, 2011 BCCA 104, 17 B.C.L.R. (5th) 132; Cimolai v. Hall, 2007 BCCA 225, 240 B.C.A.C. 53; Davies &a......
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    ...Eastern and Northern Ontario and Outaouais, 2018 ONCA 383 at para. 33; Nazerali v. Mitchell, 2018 BCCA 104 at para. 46; Smith v. Cross, 2009 BCCA 529 at para. 34Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 145; Taylor v. Despard, [1956] O.R. 963 at para. 20 [42] A......
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