IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Lougheed Estate v. Wilson,  
2017 BCSC 1366  
Date: 20170803  
Docket: S081334  
Registry: Vancouver  
Between:  
Balwinder K. Lougheed, in her Capacity as Litigation Representative  
for the Estate of William F. Lougheed, Deceased and in her Capacity  
as Litigation Representative for the Estate of Norma Yvonne  
Lougheed, Deceased, and Norbill Investments Ltd.  
Plaintiffs  
And  
And  
Kelly Janine Wilson and Charles Blair Wilson  
Defendants/Plaintiffs by Counterclaim  
Judeline Tyabji Wilson, Tugboat Enterprises Ltd.,  
Mark Allan Marissen, Elaine O’Connor, Canwest Publishing Inc.  
Publications Canwest Inc. and Steve Janke  
Defendants by Counterclaim  
Before: The Honourable Madam Justice Dardi  
Reasons for Judgment  
Counsel for the Plaintiff by Counterclaim,  
Charles B. Wilson:  
J.L. Straith  
T. Pritchard  
Counsel for the Plaintiffs and Defendants by  
Counterclaim:  
R. Massel  
B. McLeod  
Counsel for the Defendants by Counterclaim,  
Elaine O’Connor, Canwest Publishing Inc.  
and Publications Canwest Inc.:  
D.W. Burnett, Q.C.  
D.H. Coles  
Lougheed Estate v. Wilson  
Page 2  
Counsel for the Defendant by Counterclaim,  
Mark Marissen:  
A. Crimeni  
on October 26-30 and  
November 2, 2015  
Counsel for the Defendant by Counterclaim,  
Steve Janke:  
A. Leoni  
Appearing for the Defendants by  
Counterclaim, Tugboat Enterprises Ltd. and  
on her own behalf:  
Judeline Tyabji  
Counsel for the Defendant by  
Counterclaim, Judeline Tyabji:  
J.M. Young  
on May 2 and 3, 2016  
Place and Date of Trial:  
Vancouver, B.C.  
October 26-30, 2015, November 2-6,  
9-10, 16-20 and 23-25, 2015,  
December 7-11, 17 and 18, 2015,  
January 18-22, 25-29, 2016,  
February 15-19 and 22-26, 2016,  
May 2-5, 2016, and  
July 18-22, 25-27, 2016,  
Place and Date of Judgment:  
Vancouver, B.C.  
August 3, 2017  
Lougheed Estate v. Wilson  
Page 3  
Table of Contents  
INTRODUCTION.................................................................................................................... 7  
THE PARTIES........................................................................................................................ 8  
OVERVIEW...........................................................................................................................10  
SUMMARY OF FACTS.......................................................................................................13  
The Jefferson Avenue Property.....................................................................................14  
The Gordon Avenue Property ........................................................................................15  
The Lawson Avenue Property........................................................................................15  
The Pemberton Valley Property.....................................................................................16  
The Whistler Property......................................................................................................16  
The Roberts Creek Property...........................................................................................18  
Overview of Mr. Wilson’s Business Endeavours.........................................................19  
Bank Mortgages ...............................................................................................................21  
Mr. Wilson Enters Politics ...............................................................................................23  
The Article .........................................................................................................................24  
Mr. Janke’s Publication of the Anonymous Letter.......................................................26  
Elections Canada .............................................................................................................28  
The 2005 Campaign ........................................................................................................29  
Removal from the Liberal Caucus of Canada..............................................................36  
The Aftermath ...................................................................................................................40  
ISSUES..................................................................................................................................41  
CLAIM IN DEFAMATION ...................................................................................................42  
Legal Framework............................................................................................................42  
The defamatory statement..........................................................................................42  
Defences........................................................................................................................43  
Justification................................................................................................................44  
Responsible Communication..................................................................................45  
a. Public Interest ...............................................................................................47  
b. Responsible Communication......................................................................48  
Fair Comment ...........................................................................................................52  
Qualified Privilege ....................................................................................................54  
Malice.........................................................................................................................56  
Analysis ............................................................................................................................57  
Lougheed Estate v. Wilson  
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Canwest........................................................................................................................57  
Position of the parties ..............................................................................................57  
Are the Articles defamatory ....................................................................................58  
Responsible communication...................................................................................62  
a) public interest ...................................................................................................62  
b) responsibility factors........................................................................................65  
(i) seriousness of the allegation.....................................................................67  
(ii) public importance of the matter ................................................................67  
(iii) the urgency of the matter..........................................................................68  
(iv) status and reliability of the source...........................................................69  
(v) whether the plaintiff's side of the story was sought and accurately  
reported..............................................................................................................80  
(vi) whether the inclusion of the defamatory statement was justifiable ...82  
(vii)) whether public interest of the defamatory statements lay in the fact  
that it was made rather than its truth: reportage .........................................83  
(viii) other relevant considerations.................................................................86  
Conclusion.................................................................................................................87  
Summary Re: Canwest Defendants’ Liability.......................................................90  
Janke.............................................................................................................................91  
Facts...........................................................................................................................91  
Claims against Mr. Janke........................................................................................98  
Were words complained of defamatory..............................................................101  
Qualified Privilege ..................................................................................................105  
Responsible Communication................................................................................105  
Justification..............................................................................................................112  
Summary Re: Janke’s Liability.............................................................................113  
Judy Tyabji and Tugboat Enterprises Ltd.........................................................113  
Parties......................................................................................................................113  
Allegations against Judi Tyabji and Tugboat .....................................................114  
Position of the parties ............................................................................................118  
Preliminary remarks about credibility..................................................................119  
Interactions with Blair Wilson ...............................................................................120  
Communications with members of the Conservative Party.............................122  
Communications with Mark Marissen .................................................................123  
Communications with Elaine O’Connor ..............................................................126  
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Discussion...............................................................................................................127  
Anonymous Letter ..............................................................................................127  
Communications with Mr. Marissen: Qualified Privilege ..............................128  
Communications with Ms. O’Connor: Fair Comment ...................................133  
Malice...................................................................................................................137  
Conclusion: Claims against Ms. Tyabji...........................................................141  
Claims against Tugboat.....................................................................................141  
William Lougheed ....................................................................................................143  
The Applicant’s Position........................................................................................143  
Mr. Wilson's Position..............................................................................................143  
Legal Framework....................................................................................................144  
English Law.........................................................................................................144  
The Canadian Approach...................................................................................145  
Law in British Columbia prior to enactment of the WESA ...........................149  
Relevant WESA provisions...............................................................................150  
Discussion...............................................................................................................151  
Summary of Conclusions on Defamation Claim........................................................156  
DAMAGES ..........................................................................................................................157  
Legal Framework..........................................................................................................157  
General Damages ......................................................................................................157  
Aggravated Damages................................................................................................162  
Punitive Damages ......................................................................................................162  
Overview of Mr. Wilson’s Position of Damages...................................................163  
Assessed Jointly or Individually..............................................................................164  
Assessment of Damages against the Canwest defendants .............................164  
The seriousness of the publication..........................................................................165  
Reputation of the plaintiff ..........................................................................................165  
The identity of the defendant....................................................................................165  
The breadth of the distribution of the publication of the libel...............................165  
Republication of the libel...........................................................................................166  
Contemporaneous publication by others................................................................166  
The impact on Mr. Wilson .........................................................................................166  
Correction....................................................................................................................170  
Conduct of Ms. O'Connor and the Canwest defendants......................................170  
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Conduct of defendants’ counsel through to the end of the trial ..........................171  
Amount of general damages ....................................................................................171  
Aggravated damages.................................................................................................172  
Punitive damages.......................................................................................................172  
Assessment of Damages against Mr. Janke.........................................................172  
The seriousness of the publication..........................................................................173  
Reputation of the plaintiff ..........................................................................................173  
The identity of the defendant....................................................................................173  
The breadth of the distribution of the publication of the libel...............................173  
Contemporaneous publication by others................................................................175  
The impact on Mr. Wilson .........................................................................................175  
Absence of retraction or apology.............................................................................175  
Conduct of Mr. Janke.................................................................................................176  
Amount of general damages ....................................................................................176  
Aggravated damages.................................................................................................177  
CLAIM UNDER THE BPCPA..........................................................................................177  
Overview of Mr. Wilson’s claim ....................................................................................177  
Statutory framework.......................................................................................................177  
Analysis............................................................................................................................179  
Claim against Mr. Lougheed.....................................................................................179  
Claim against the Canwest defendants and Ms. Tyabji.......................................191  
DEBT CLAIM AGAINST MR. WILSON .........................................................................192  
SUMMARY..........................................................................................................................193  
COSTS.................................................................................................................................193  
Lougheed Estate v. Wilson  
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INTRODUCTION  
[1]  
These proceedings spring from a series of publications made in 2007 and  
2008 that allegedly defamed the plaintiff by counterclaim, Blair Wilson.  
[2]  
In 2007, Mr. Wilson was a sitting Member of Parliament, representing the  
riding of West Vancouver – Sunshine Coast – Sea to Sky Country (the “Riding”).  
Mr. Wilson was a caucus member of the Liberal Party of Canada (“Liberal Party”),  
elected in the 2006 federal election.  
[3]  
Mr. Wilson claims that a series of publications of unfounded and  
unsubstantiated allegations defamed him in the most sensational manner possible.  
Casting the dispute in a vastly different light, the defendants assert that the  
publications were a good faith effort to present information to the public on the  
conduct and fiscal integrity of a Member of Parliament. Central to this case are the  
contours of what constitutes “public interest” and the limits of the ability of the press  
and concerned citizens to engage in critical commentary of elected representatives.  
This case requires the Court to balance the competing values of freedom of  
expression on the one hand with the protection of reputation of those who publically  
serve on the other.  
[4]  
There is an extensive litigation history between the parties. The matter has  
been hard fought on all fronts. There has been a multitude of interlocutory court  
applications including several hearings before our Court of Appeal. The dispute  
culminated in a 59 day trial.  
[5]  
The fact that the parties and the witnesses were recalling material events  
more than eight years after those events occurred has compounded the complexity  
of this case.  
[6]  
I will first identify the parties, summarize the pertinent facts, and delineate the  
issues. I will then address each issue on the merits.  
 
Lougheed Estate v. Wilson  
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[7] In these Reasons, the summary of facts reflects evidence that was either not  
in dispute, or, where it was in dispute, the factual findings I have made based on the  
consideration of the evidence as a whole. I have explained the reasoning underlying  
my findings where the evidence conflicted in a significant way on material points, or  
a party has urged that a particular inference be drawn from the evidence.  
THE PARTIES  
[8]  
For convenience, in these Reasons, the “Counterclaim” refers to Mr. Wilson’s  
second further amended counterclaim filed on September 2, 2015.  
[9]  
The defendant by counterclaim, William Lougheed, was the widower of  
Mr. Wilson’s deceased mother-in-law, Norma Lougheed. She died on May 24, 2007.  
Mr. Wilson’s wife, Kelly, is the daughter of the late Mrs. Lougheed.  
[10] William Lougheed was a named defendant both in his personal capacity and  
as the executor of Norma Lougheed’s will. The Lougheeds’ private company, Norbill  
Investments Ltd. (“Norbill Investments”) is also a named defendant. I will refer to  
them collectively as the “Lougheed defendants”.  
[11] Mr. Lougheed passed away unexpectedly on January 21, 2016 mid-trial. By  
order of this Court pronounced on January 27, 2016, Balwinder Lougheed,  
Mr. Lougheed’s widow, was appointed as litigation representative for the estate of  
Mr. Lougheed and as litigation representative for the estate of the late Norma  
Lougheed for the purposes of this litigation only. I ordered that the style of cause be  
amended accordingly.  
[12] At the outset of trial, Kelly Wilson applied for standing in order to apply for an  
order restraining the defendants by counterclaim from using copies of her  
confidential documents and requiring the return of these documents. Her application  
was opposed by the defendants by counterclaim. I dismissed her application on  
October 28, 2015.  
 
Lougheed Estate v. Wilson  
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[13] Mr. Wilson applied on May 9, 2013 to add Lynda Lougheed as a party to the  
action, namely as a defendant by counterclaim. Lynda Lougheed is one of  
Mr. Lougheed’s four children from his prior marriage. In reasons indexed at  
Lougheed v. Wilson, 2013 BCSC 1713, Madam Justice Gropper dismissed the  
application.  
[14] The defendants by counterclaim include Canwest Publishing Inc., and  
Publications Canwest Inc., which operates “The Province”, a daily newspaper based  
in Vancouver. Elaine O’Connor, a reporter for the Province, is also a named  
defendant. I will refer to these defendants collectively as the “Canwest Defendants”.  
[15] The defendant by counterclaim, Steven Janke, is a professional software  
engineer and former part-time blogger who resides in Ontario.  
[16] The defendant by counterclaim, Judeline Tyabji Wilson, is a businesswoman  
and former politician. She was formerly the chief operating officer of Tugboat  
Enterprises Ltd., which is also a defendant by counterclaim. With the leave of the  
Court, Ms. Tyabji was represented by counsel throughout the course of her  
testimony. However, she otherwise appeared in person in this court proceeding.  
Ms. Tyabji was authorized by Tugboat to represent them at the trial. Neither Mr.  
Wilson nor any of the defendants raised any objection to Ms. Tyabji appearing for  
Tugboat at trial.  
[17] This Court retains the discretion to permit persons other than barristers to be  
heard. The court’s power to grant this privilege should be exercised rarely and with  
caution: Venrose Holdings Ltd. v. Pacific Press Ltd. (1978), 88 D.L.R. (3d) 523  
(B.C.C.A.). I determined that, in all the circumstances, it was in the interests of  
justice that Mrs. Tyabji be permitted to represent Tugboat at trial.  
[18] The defendant by counterclaim Mark Marissen, a Vancouver-based political  
consultant, was the National Campaign Co-Chair of the Liberal Party from  
January 2007 to December 2008.  
Lougheed Estate v. Wilson  
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[19] On November 2, 2015, after the commencement of the trial, Mr. Wilson  
consented to the dismissal of the counterclaim filed against Mr. Marissen, without  
costs to any party. The order also included a term that Mr. Wilson would not be  
entitled to claim any damages from the other defendants by counterclaim that are  
found to be attributable to Mr. Marissen.  
OVERVIEW  
[20] The factual matrix of this case is complex.  
[21] The events underpinning this claim date back to 2007. As I mentioned,  
Mr. Wilson's mother-in-law, Norma Lougheed, passed away in May 2007.  
Kelly Wilson, who is Norma Lougheed's only child, brought an action pursuant to the  
Wills Variation Act, R.S.B.C. 1996, c. 490 against her adoptive father, Mr. Lougheed,  
both in his personal capacity and as executor of her late mother’s will. The reasons  
for judgment of Ballance J. in those proceedings are indexed at 2010 BCSC 1868  
(the “WVA Action”).  
[22] In a counterclaim to the WVA Action, as well as in a separate debt action (the  
“Debt Action”), Mr. Lougheed in his personal and representative capacities and as  
the directing mind of Norbill Investments, sought to recover monies allegedly loaned  
to Ms. and Mr. Wilson for the acquisition of six parcels of real property in British  
Columbia. In her reasons Ballance J. referred to the six properties by their  
respective locations: the Jefferson Avenue property, the Gordon Avenue property,  
the Lawson Avenue property, the Pemberton Valley property, the Whistler property,  
and the Roberts Creek property (collectively, “the Properties”). For convenience, in  
these reasons I will refer to the Properties in the same manner. Kelly Wilson and  
Mr. Wilson were both named as defendants in the Debt Action.  
[23] Prior to the trial in the WVA Action, Mr. Lougheed discontinued his claim for  
repayment of the alleged loans. As a result of the discontinuance against Mr. Wilson,  
the only extant claims against Mr. Wilson relate to an alleged loan from the late  
Norma Lougheed to Mr. Wilson in the amount of $6,000. I will return to the alleged  
loan later in these Reasons.  
 
Lougheed Estate v. Wilson  
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[24] By consent, the WVA Action and the Debt Action were to be tried at the same  
time. Pursuant to a subsequent consent order dated November 12, 2009  
Mr. Wilson’s defamation action, along with Mr. Lougheed's claims against Mr. Wilson  
in the Debt Action, were severed from that proceeding.  
[25] The claims in the Debt Action against Ms. Wilson and the Counterclaim in the  
WVA Action were overlapping. At trial Mr. Lougheed pursued the debt allegations  
against Ms. Wilson in relation to the properties by way of his counterclaim in the  
WVA Action. He discontinued those claims in relation to Lawson Avenue and  
Gordon Avenue when Ms. Wilson closed her case at trial. In the result, the  
remaining debt claims against Ms. Wilson pertained to the properties at Whistler and  
Roberts Creek. For the sake of convenience, in these Reasons I will refer to the debt  
claim against Ms. Wilson heard by Ballance J. and Ms. Wilson’s claim under the  
WVA Action collectively as the “WVA Action”.  
[26] In reasons indexed at 2012 BCSC 169 (the “2012 Reasons”) I held that the  
parties to this proceeding were barred from challenging the findings of Ballance J. in  
the WVA Action with respect to the Properties.  
[27] This defamation claim was initiated as a counterclaim by Mr. Wilson to the  
Debt Action.  
[28] The events which are pertinent to the alleged defamation spring from a  
lengthy front page “special investigation” article, authored by Ms. O’Connor, titled  
“Family exposes MP’s trail of debt” (the “Article”), published by the Province on  
October 28, 2007. The Article is reproduced in its entirety in Schedule A of these  
Reasons, and the statements that Mr. Wilson claims are defamatory have been  
highlighted. The bullet points accompanying the Article’s headline read: “a history of  
unpaid debts”; “allegations of illegal campaign spending”; “a record of business  
troubles”. These bullets were followed by the statement “These are the reasons MP  
Blair Wilson is unfit for office, say Liberal insiders and his father-in-law”. The  
acquisition and disposition of the Properties are prominently featured in the Article.  
Lougheed Estate v. Wilson  
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[29] Mr. Lougheed, Mr. Wilson’s father-in-law, made allegations to Ms. O’Connor  
to the effect that Mr. Wilson, who had campaigned on a fiscally responsible record  
was not the success he had claimed to be.  
[30] Notably, Ms. O’Connor was also provided with a copy of an anonymous letter,  
addressed to Elections Canada and dated October 24, 2007, that addressed  
complaints about Mr. Wilson’s campaign funding (the “Anonymous Letter”). The  
Anonymous Letter set out eight separate allegations that Mr. Wilson had  
contravened provisions of the Canada Elections Act, S.C. 2000, c. 9 (“Canada  
Elections Act”). It also included a number of enclosures which purported to be  
evidence of the allegations.  
[31] Ms. O’Connor declined to identify the source that provided her with the  
Anonymous Letter because she had agreed that she would keep the source’s  
identity confidential. Our Court of Appeal held that Ms. O’Connor was not required to  
reveal her source: Canwest Publishing Inc. v. Wilson, 2012 BCCA 181.  
[32] Mr. Wilson alleges that Ms. Tyabji was the author of the Anonymous Letter,  
and that she passed other defamatory documents to Mr. Marissen and others within  
the Liberal Party. He claims, as well, that Ms. Tyabji communicated off-the-record  
with Ms. O’Connor about his alleged debts and violations of the Canada Elections  
Act, and provided a comment intended for publication that she believed him to be  
unfit for public office.  
[33] Shortly after the Article was published, Mr. Janke received a copy of the  
Anonymous Letter and enclosures, and posted them on his blog.  
[34] Mr. Wilson submits that the publication and dissemination of the Article and  
the Anonymous Letter caused irreparable harm to his personal and political  
reputation. He argues that he is entitled to recover general, special, and punitive  
damages against the parties who published, republished, or otherwise disseminated  
defamatory statements about him.  
Lougheed Estate v. Wilson  
Page 13  
[35] Mr. Wilson also seeks relief under the Business Practices and Consumer  
Protection Act, S.B.C. 2004, c. 2 (“BPCPA”). He has abandoned his claim under the  
Privacy Act, R.S.B.C.1996, c. 373 (“Privacy Act”).  
SUMMARY OF FACTS  
[36] Mr. Wilson was raised in North Vancouver and obtained a political science  
degree from the University of Victoria. He became qualified as a chartered  
accountant in 1991 after articling with the accounting firm of Ernst and Young.  
[37] Mr. Wilson married Kelly Wilson on September 30, 1989. The Wilsons have  
two children born in 1990 and 1991.  
[38] In these Reasons, I will refer to Kelly Wilson and Norma Lougheed by their  
given names for convenience only, intending no disrespect.  
[39] Kelly was Norma’s only child. Norma married William Lougheed when Kelly  
was eight years old. Mr. Lougheed eventually adopted Kelly.  
[40] As I mentioned, Mr. Lougheed had four children from his first marriage. In  
1989, a dispute arose with his children in relation to a family trust of which they were  
beneficiaries. Litigation ensued. Kelly did not participate nor was she a party to the  
proceedings. However, given her legal status, she was ultimately included in the  
settlement Mr. Lougheed reached with his children. The terms of the settlement  
provided that payments would be made to individual holding companies incorporated  
in respect of each of Mr. Lougheed’s children. Mountainside Ventures Ltd.  
(“Mountainside”) was the holding company incorporated for Kelly's benefit in 1989.  
[41] According to Mr. Wilson, Mr. Lougheed and Norma managed Mountainside  
as a “family business” for Kelly’s benefit. At some point, Mr. Wilson became involved  
in the management of Mountainside’s investment portfolio and the portfolio  
sustained a significant loss. In 2004, Mr. Lougheed, with Kelly’s authorization,  
assumed the management of Mountainside’s investments. Norma and Mr. Lougheed  
 
Lougheed Estate v. Wilson  
Page 14  
injected funds into Mountainside to “trade it up”. Neither Kelly nor Mr. Wilson injected  
any capital into Mountainside.  
[42] It is uncontroversial that the total amount paid out from Mountainside from  
December 1989 to 2007 was $1,928,000. The evidence establishes that distributions  
from Mountainside were paid to Kelly as dividends and to Mr. Wilson or his company  
as consulting fees in order to optimize the family's income splitting for income tax  
purposes. However, commencing in 2005, Kelly wrote cheques from Mountainside  
to defray the operational expenses of Mr. Wilson’s floundering restaurant business. I  
will return to Mr. Wilson’s restaurant business later in these Reasons.  
[43] As I mentioned, Ballance J. thoroughly reviewed the evidence regarding the  
acquisition of the Properties. In accordance with the 2012 Reasons, I summarize her  
findings below.  
The Jefferson Avenue Property  
[44] The Wilsons purchased the Jefferson Avenue property in November of 1989.  
The purchase price of $295,000 was financed entirely by Norma and both  
Mr. Wilson and Kelly’s names were registered on title. The Wilsons granted Norma a  
registered mortgage in the amount of $168,000. The following spring, Norma loaned  
the Wilsons another $30,000 so that they could add a basement suite to the  
property.  
[45] According to the mortgage document, the Wilsons were to make monthly  
payments in the amount of $1,502.74. However, Ballance J. found that Norma did  
not actually expect the Wilsons to adhere to this payment scheme, given their  
financial situation at the time. Instead, she and Mr. Wilson worked out a more  
affordable payment in the range of $550 to $600 per month. Madam Justice  
Ballance concluded that Norma was perfectly content with their payment record and  
with the financial arrangement overall.  
[46] A few months after the purchase of the Gordon Avenue property, the Wilsons  
sold the Jefferson Avenue property for $300,000. From the sale proceeds, the sum  
of $193,539.55 was paid to Norma. According to Norma’s records, the amount owing  
 
Lougheed Estate v. Wilson  
Page 15  
to her was closer to $207,000. However, the preponderance of the evidence  
indicated that Norma did not consider the alleged deficiency to be an account  
receivable or an indebtedness that she planned to collect.  
The Gordon Avenue Property  
[47] In the spring of 1991, Norma, who was assisting the Wilsons in their house-  
hunting efforts, located the Gordon Avenue property and facilitated its acquisition by  
paying the purchase price of $560,000 on Kelly’s behalf. Title was registered in  
Kelly’s name alone and on that basis Norma did not require the Wilsons to sign a  
mortgage or provide any other form of security. Moreover, Norma did not require the  
Wilsons to make monthly payments toward the purchase price. The terms of any  
repayment were left vague and undefined. Madam Justice Ballance found that as of  
2001, there was no account receivable recorded in Norma’s records with respect to  
the Gordon Avenue property.  
[48] Madam Justice Ballance ultimately concluded that Norma had decided to  
forgive the outstanding balance such that the purchase price of the Gordon Avenue  
property was a gift to Kelly and that Mr. Lougheed was aware of the gift.  
The Lawson Avenue Property  
[49] On October 1, 2001, Norma transferred the Lawson Avenue property to Kelly.  
Norma had purchased the Lawson Avenue property in 1986 for a price of $171,000.  
For many years, she rented it at a discounted rate to various relatives and family  
friends.  
[50] Norma and Mr. Wilson discussed how the title would be held. They agreed  
that Kelly would be the sole owner of the Lawson Avenue property and that Norma  
would not require a formal mortgage or other form of security if title was registered in  
Kelly’s name alone.  
[51] The price of $171,000 was to be paid in full within one year. Madam Justice  
Ballance found that the parties did not make any firm financial arrangements beyond  
a general understanding that Kelly would acquire title to the property for the sum that  
   
Lougheed Estate v. Wilson  
Page 16  
Norma had originally paid for it, even though its value at the time was estimated to  
have appreciated significantly. The purchase price was to be paid out of the  
proceeds of the Gordon Avenue property, which was expected to be sold within the  
year.  
[52] In June 2002, the Gordon Avenue property was sold for $795,000. Kelly  
eventually paid her mother the sum of $171,000, or thereabouts, for Lawson Avenue  
out of the proceeds of sale she received from Gordon Avenue.  
[53] Madam Justice Ballance concluded that Norma was perfectly content with this  
arrangement and that as far as she was concerned Kelly owed nothing further with  
respect to it.  
The Pemberton Valley Property  
[54] In November 2002, Kelly, with a view to one day building an equestrian centre  
and possibly a residence, acquired a 16-acre property in the Pemberton Valley. She  
applied $380,000 of the sale proceeds from the Gordon Avenue property to  
purchase this property. Title was registered in Kelly’s name alone.  
The Whistler Property  
[55] In December 1990, the Lougheeds jointly purchased a condominium in  
Whistler (the “Whistler property”) for the sum of $202,200.  
[56] On February 4, 2003, the Lougheeds executed a transfer document  
conveying title to the Whistler property to Kelly.  
[57] Madam Justice Ballance found that Mr. Wilson and Mr. Lougheed agreed on  
the purchase price of $450,000, and that the details of the payment schedule were  
left to be determined between Mr. Wilson and Norma.  
[58] Although the “Whistler Payment Schedule” set the monthly payments at  
$2,899.36 and incorporated an interest component in the calculation of the monthly  
amount, Mr. Wilson and Norma agreed that the Wilsons’ monthly payments were to  
   
Lougheed Estate v. Wilson  
Page 17  
be applied in their entirety against the principal amount of the loan. Interest would  
not be payable.  
[59] Norma prepared a separate document recording the Wilsons’ payments for  
the Whistler property. The payments were not made every month. The Court found  
there was no agreement that the Whistler property loan would be repaid by a certain  
date.  
[60] With respect to the terms of repayment, in her reasons Ballance J. found as  
follows, at para. 151:  
[151] This was not an arm’s length commercial transaction. It was a  
sweetheart family arrangement between wealthy parents and their daughter  
and son-in-law. I conclude that much like all of Norma’s financial dealings  
with the Wilsons, other than ensuring the purchase price was acceptable to  
William and reaching an agreement on the monthly amount payable, there  
was a lack of formality surrounding repayment of the loan. Blair and Norma  
left the terms of repayment loosely defined along the lines that the Wilsons  
would do their best to pay the agreed monthly amount.  
[61] With respect to the payments made by the Wilsons on the Whistler property  
Ballance J. found at paras. 143-144 and 309-310:  
[143] Norma’s Whistler Accounting shows that although the Whistler  
Property was transferred into Kelly’s name the first week of February 2003,  
the Wilsons’ payments did not begin until May 2003. Two cheques were  
evidently returned for non-sufficient funds in 2003. There was no evidence  
that Norma or William sought to recoup those missed payments.  
[144] The Wilsons typically paid by supplying Norma with several post-  
dated cheques and rounded up many of their monthly payments to $2,900 or  
$3,000. They made twelve monthly payments in 2004, ten payments in 2005  
and seven in 2006. Payments up to and including July 2006 were reflected in  
Norma’s Whistler Accounting, although four more payments were made after  
that time.  
...  
[309] On December 6, 2006 - after the October conversation - Norma  
deposited a cheque for $3000 received from the Wilsons relative to the  
Whistler Property loan. I conclude that the cheque deposited by Norma in  
December was one of the many post-dated cheques from the Wilsons and  
had likely been in Norma’s possession for several months. I accept further  
that Norma deposited that cheque inadvertently along with a batch of other  
post-dated cheques.  
Lougheed Estate v. Wilson  
Page 18  
[310] A few days later, the Wilsons’ December cheque was returned by the  
bank NSF. There is no evidence that Norma ever raised the matter of the  
NSF cheque with Kelly or Blair, or thereafter discussed with them the status  
of future payments against the Whistler Property loan or sought further  
payments in the form of additional post-dated cheques...  
[62] Madam Justice Ballance concluded that Norma did not forgive the Whistler  
property loan. The balance owing on the loan as of the date of Norma’s death was  
determined to be $350,703.84. Accordingly, Kelly was ordered to repay that sum,  
together with pre-judgment interest, in equal proportions to Norma’s estate and to  
Mr. Lougheed personally.  
The Roberts Creek Property  
[63] Kelly listed the Pemberton Valley property for sale in late 2005. The listing  
price was $599,000.  
[64] Mr. Wilson was elected to Parliament on January 23, 2006. In the summer of  
2006, Kelly and Norma began looking for a new acreage within Mr. Wilson’s political  
riding on the Sunshine Coast, which would in effect replace the Pemberton Valley  
property. Norma discovered a suitable 10-acre lot of bare land in the Roberts Creek  
area, which had not been advertised in the usual multiple listing publications. The  
asking price was $428,000.  
[65] In discussions between Kelly and Norma, it was agreed that the Lougheeds  
would advance Kelly the purchase price, which she would repay from the sale  
proceeds of the Pemberton Valley property. The proposed arrangement for bridge  
financing was subject to Mr. Lougheed’s approval.  
[66] With respect to the terms of the parties’ financing arrangement for the  
acquisition of the Roberts Creek property the Court found that the payment of the  
purchase price was structured as follows: Norma provided a personal cheque in the  
amount of $16,000 for the deposit and issued a cheque from a Norbill Investments  
account in the amount of $445,710.29 for the balance of the purchase price and  
closing costs. On the same day, title was registered in Kelly’s name alone. On the  
totality of the evidence, the Court concluded that the parties had agreed that the  
 
Lougheed Estate v. Wilson  
Page 19  
Roberts Creek loan would not become due until after the Pemberton Valley property  
was sold.  
[67] Madam Justice Ballance found that, as of trial, the total amount owing in  
respect of the loan was $461,719.29. The court concluded that $16,000 was due to  
the Estate and the balance of the loan was owed to Norbill Investments. The loan,  
which bears no interest, is payable on the sale of the Pemberton Valley property,  
which as of the date of trial of the WVA action had not yet sold.  
Overview of Mr. Wilson’s Business Endeavours  
[68] Mr. Wilson established a sole practice as a chartered accountant in West  
Vancouver in approximately 1992.  
[69] At Mr. Lougheed’s suggestion and with his assistance, Mr. Wilson started an  
intercom leasing business that he named C.B. Wilson Capital Ltd. Mr. Lougheed  
initially provided a personal guarantee to secure the company’s borrowing.  
Mr. Lougheed eventually asked to be released from his personal guarantee. In 1996  
Kelly granted a collateral mortgage on the Gordon Avenue property to secure up to  
$475,000 of the company’s borrowing. Mr. Wilson transferred the company to Kelly  
while he served as a Member of Parliament. She subsequently transferred it back to  
Mr. Wilson and he continues to operate it.  
[70] Mr. Wilson also set up two investment funds through C.B. Wilson Capital  
Limited Partnership. Kelly, as well as her step-brother and grandfather, Norma, and  
Mr. Lougheed each invested funds. Norma’s note, put to Mr. Wilson in cross-  
examination, - which would have been in the documents reviewed by Ms. O’Connor  
- refers to the value of the fund in 1996 as having decreased by $200,000. Relying  
on another document Mr. Wilson maintains that the investment fund had not  
sustained any loss by the time it was wound up in 1997. According to Mr. Wilson  
when the fund was wound up there was an in specie distribution of the shares to  
each investor. Mr. Wilson maintains that while the investors did not lose any money  
“per se” he conceded that they did not “have a great rate of return”. No business  
 
Lougheed Estate v. Wilson  
Page 20  
records of the investment fund were produced at trial. In the absence of sufficiently  
reliable documentary evidence I am unable to make a finding on the point.  
[71] In or around 1994, Mr. Wilson closed his accounting practice and made the  
transition to working full-time as the chief financial officer for one of his clients Pan  
Smak Pizza Inc. (“Pan Smak”). The company was a fast food restaurant chain  
operating out of Eastern Europe. Mr. Wilson joined the board of directors and  
worked in Poland for few years. When he went to Poland there was only one  
restaurant open. Mr. Wilson maintains that there were 14 restaurants in operation  
and seven under construction when he left the company in 1996. Additionally, he  
maintains that he assisted other restauranteurs and businesses with the opening of  
another 40-50 restaurants in Poland. Wayne Taylor, a banking consultant for the  
company at the material time, disputed these assertions in his trial testimony. Mr.  
Wilson’s campaign brochure stated that as the chief financial officer of a growing  
international restaurant chain he had “opened more than 40 restaurants abroad”. In  
other campaign material he claims to have opened 21 restaurants in Poland. The  
preponderance of the evidence supports a finding that during the course of his 2005  
campaign Mr. Wilson exaggerated the extent of his success with this business  
endeavour.  
[72] Mr. Wilson asserts that he left Pan Smak because of a disagreement over its  
growth plan. In 1997, he was sued by the corporation. The matter was set down for  
trial but was ultimately was resolved out of court. A consent dismissal order was filed  
on October 22, 1999.  
[73] In about 1998 Mr. Wilson founded a start-up software company that was  
ultimately unsuccessful. In November 1998 MAC Multimedia Accelerator Corp. sued  
Mr. Wilson. The claim included allegations that as a senior officer and director he  
had taken unauthorized cash advances of approximately $60,000 and breached his  
fiduciary obligations to the corporation (the “Mac Media” litigation). In cross-  
examination Mr. Wilson maintained that the funds he withdrew from the company,  
and paid back a few months later, represented an undocumented loan to secure  
Lougheed Estate v. Wilson  
Page 21  
computer leases. He admitted that he had submitted duplicate expenses in error.  
The Mac Media litigation was also resolved out of court. A consent dismissal order  
was filed on March 31, 1999.  
[74] The evidence shows that, in 2000 through 2005, Mr. Wilson’s personal  
income declared for tax purposes, even after Mountainside income-splitting, was  
very modest.  
[75] In 1996 Mr. Wilson purchased a sports bar which he named Mahoney's  
Sports Grill (“Mahoneys”). Mr. Wilson’s brother Drew operated the business. The  
documents establish that on two occasions in 1998 there were proceedings  
launched against Mahoney’s for default of payment of Social Service Tax. A writ of  
seizure and sale was issued twice. Additionally, the B.C. Employment Standards  
Tribunal made some determinations in relation to employee disputes. According to  
Mr. Wilson, Mahoney’s closed in 2006 because the terms of the proposed lease  
renewal were unacceptable.  
[76] Mr. Wilson then turned to pursuing other restaurant opportunities. He decided  
to open a high-end steakhouse (the “Steakhouse”) in close proximity to BC Place  
Stadium in downtown Vancouver. Its target market was the more affluent patrons  
attending sporting events. Mr. Wilson leased a vacant building and obtained  
financing from the Royal Bank to construct the Steakhouse.  
[77] Unfortunately, the first year of operations of the Steakhouse coincided with  
the National Hockey League lockout. The Steakhouse was eventually placed in  
receivership and closed in January 2007. The Wilsons acquired considerable debt  
as a result of the failure of the business. I will address the extent of that debt in the  
next section.  
Bank Mortgages  
[78] Mr. Wilson obtained an $800,000 line of credit from the Royal Bank to finance  
the construction and operation of the Steakhouse.  
 
Lougheed Estate v. Wilson  
Page 22  
[79] The Royal Bank required security for its loan. On March 17, 2004, a demand  
collateral mortgage of $580,000 was registered against the Whistler property in  
favour of the Royal Bank of Canada.  
[80] Mr. Wilson testified that the Royal Bank required that the sum of $442,500,  
which had been drawn against the $800,000, be “termed out”. Kelly granted a two-  
year mortgage against the Whistler property for $442,500 which Mr. Wilson signed  
as a co-covenantor. I accept that the $442,500 mortgage was the termed out portion  
of the $580,000 demand mortgage already registered against the Whistler property.  
In other words, that indebtedness was subsumed within the larger mortgage  
indebtedness and was not in addition to it.  
[81] Mr. Wilson sought additional financing for the Steakhouse. On July 27, 2006,  
a mortgage with the face amount of $1,820,000 was registered against the Lawson  
property and the Pemberton property in favour of HSBC Bank Canada (“HSBC).  
[82] Given the deteriorating financial circumstances of the Steakhouse, the Royal  
Bank demanded security for the unsecured portion of the $800,000 loan. On August  
10, 2006, Kelly granted an additional collateral mortgage in the principal amount of  
$335,000 against title to Lawson Avenue and Pemberton Valley to cover the  
unsecured balance.  
[83] It is common ground that Mr. Lougheed and Norma were told nothing about  
these mortgages in favour of various financial institutions.  
[84] Mr. Wilson acknowledged that the Steakhouse was a financial failure and that  
he and Kelly had “lost their shirts”. His evidence on the actual amount of the debt  
was difficult to follow.  
[85] As of December 2006, the Royal Bank was owed $800,000. The Wilsons  
recognized that it was in their best interests to satisfy the bank indebtedness in a  
reasonably orderly fashion. To this end, Kelly listed the Whistler property for sale in  
April 2007. It sold for $580,000 in August 2007. Neither Blair nor Kelly informed  
Mr. Lougheed of the sale. Mr. Lougheed found out about the sale around the time of  
Lougheed Estate v. Wilson  
Page 23  
Norma’s funeral. After the payment of outstanding strata fees, the balance of the  
sale proceeds was applied to the Wilsons’ outstanding indebtedness to the Royal  
Bank. The Royal Bank commenced foreclosure proceedings against the Wilsons in  
June 2008. When the Lawson property was sold in June 2009, approximately  
$73,000 was paid to the Royal Bank on its mortgage security.  
[86] The preponderance of the evidence supports a finding that the Wilsons had  
incurred bank loans of approximately $1.8 million. The Royal Bank was paid out its  
$800,000 indebtedness in full. Additionally, when the Lawson property was sold in  
June 2009 approximately $1 million was paid to HSBC on its mortgage security. This  
is supported by the documentary evidence.  
Liens on Properties  
[87] A lien for unpaid strata fees was filed pursuant to the Strata Property Act SBC  
c.43 against the Whistler property in August 2007.  
[88] Additionally, in 2007 there were Social Service Tax Act liens filed on the  
Lawson Avenue property and the Roberts Creek Property.  
Mr. Wilson Enters Politics  
[89] Mr. Wilson eventually became involved with the Liberal Party and in 2004 he  
decided to run for the Liberal nomination in West Vancouver.  
[90] The Liberal Party in British Columbia established what was described at trial  
as the “Green Light” process for vetting potential candidate. This was carried out by  
what was known as the “Green Light” Committee. While the members of this  
committee make recommendations, it is the leader of the Liberal Party who makes  
the final decision regarding an applicant's candidacy.  
[91] In accordance with the Liberal Party’s national constitution, Mr. Wilson was  
required to submit his nomination forms with a statutory declaration. In 2004  
Mr. Wilson completed his forms with the assistance of his lawyer, Mr. Scott Lamb.  
The pertinent forms required disclosure of any civil proceedings.  
 
Lougheed Estate v. Wilson  
Page 24  
[92] Mr. Wilson lost the June 28, 2004 election. However, he maintains that he  
“never stopped campaigning” because a minority government had been elected and  
the next election could have been called at any time.  
[93] As it turned out, the Governor General issued the writ of election on  
November 29, 2005 after a vote of non-confidence in the House of Commons.  
[94] Mr. Wilson’s 2005/2006 election campaign (the “2005 Campaign”) was a chief  
point of controversy in these proceedings. A substantial amount of trial time was  
consumed with testimony about Mr. Wilson’s campaign financing. I will return to his  
2005 Campaign later in these Reasons.  
[95] On January 23, 2006, Mr. Wilson was elected as a Member of Parliament for  
the Liberal Party for the Riding. 63,635 votes were cast in the Riding in that election.  
He won by a margin of 976 votes.  
[96] Mr. Wilson maintains that, following his election to the House of Commons,  
he organized his affairs so as to avoid any potential conflict of interest. He  
transferred his shares in Mahoney's restaurant, the Steakhouse and C.B. Wilson  
Capital Ltd. to Kelly. However, the evidence establishes that he continued to be  
involved with Mahoney’s restaurant and the Steakhouse.  
[97] In early October 2007 Mr. Wilson was appointed as the National Revenue  
Critic for the Official Opposition.  
The Article  
[98] In September 2007 Fabian Dawson, a supervising editor of the Province  
newspaper, was informed about a potential story regarding the fiscal integrity of  
Mr. Wilson. He assigned a journalist, Elaine O'Connor, to investigate the matter.  
Ms. O’Connor conducted research on Mr. Wilson over the following weeks.  
[99] On October 6, 2007, Ms. O'Connor met with Art Alexander, Lynda Lougheed,  
William Lougheed and Leo Knight at Mr. Lougheed’s home in West Vancouver.  
Mr. Alexander, who died on April 27, 2011, was a former neighbour of  
 
Lougheed Estate v. Wilson  
Page 25  
Mr. Lougheed’s in Pender Harbour. In January 2005 Leo Knight had published an  
unflattering article on Mr. Wilson on his blog entitled “Crime and Punishment”. Both  
Leo Knight and Mr. Alexander were associated with the Conservative Party of  
Canada. Ms. O’Connor was shown a number of documents at the meeting.  
[100] Lynda Lougheed was authorized by her father to gather and scrutinize  
Norma’s records. Crucially, Mr. Lougheed also authorized her to communicate with  
Ms. O’Connor on his behalf. It is common ground that, at all material times, Lynda  
Lougheed acted as her father’s agent. On October 9, Lynda Lougheed delivered a  
box of the pertinent documents to Ms. O’Connor in order that Ms. O’Connor could  
review them in more detail.  
[101] Over the next three weeks, Ms. O’Connor continued to investigate the story.  
As I referred to earlier, prior to the publication of the Article Ms. O’Connor was  
provided with a copy of the Anonymous Letter. Ms. O’Connor spoke by telephone  
with Mr. Wilson on October 25, 2007 and sought his comment on many of the  
matters that were subsequently referred to in the Article. I will return to their  
discussion later in these Reasons.  
[102] Ms. O’Connor spoke to a broad range of people and reviewed extensive  
documentation. I will refer to the details of her due diligence as necessary in my  
analysis.  
[103] On October 28, 2007 the Province published the Article.  
[104] The Article ignited a firestorm of controversy.  
[105] Mr. Wilson spoke by telephone to the Honourable Stephane Dion, the Leader  
of the Official Opposition on October 28, 2007. According to Mr. Wilson, Mr. Dion  
told him that he had a copy of a “report” and conveyed his understanding that Mr.  
Wilson would be charged under the Canada Elections Act. The evidence does not  
establish what material Mr. Dion reviewed prior to his telephone call with Mr. Wilson.  
Lougheed Estate v. Wilson  
Page 26  
[106] On or about October 29, 2007, Mr. Wilson resigned from the Liberal Party  
caucus and from his position as the National Revenue Critic.  
[107] On October 29, 2007, the Province published a second article that focussed  
on Mr. Wilson’s business affairs. The article was entitled “MP’s lifestyle linked to  
business failures”. At trial, Mr. Wilson abandoned his claim in relation to this article.  
[108] After his resignation from the Liberal Party caucus, Mr. Wilson continued to sit  
as an independent Member of Parliament.  
Mr. Janke’s Publication of the Anonymous Letter  
[109] At the material time, Mr. Janke published a blog called “Angry in the Great  
White North”, with the subtitle “a heat-seeking missile in the Conservative arsenal”.  
He described the blog as a running commentary on news and politics from a small  
“c” conservative, generally libertarian point of view. The information on his blog was  
derived from online sources, typically from news reports.  
[110] According to Mr. Janke, the readership of his blog was modest, in the range  
of a few hundred hits a day. He published the blog as a hobby and did not receive  
any revenue from its operation beyond minor amounts through reader clicks on ad  
sales (at its height, around $100 a quarter).  
[111] Mr. Janke has never been a member of a political party, nor has he ever had  
dealings with Mr. Wilson or his Conservative Party opponent, John Weston. Mr.  
Janke was a supporter of the Conservative Party, and thus had a general interest in  
seeing Conservative candidates win their ridings, but otherwise had no specific  
interest in Mr. Wilson.  
[112] In late October and early November 2007, Mr. Janke read a number of online  
newspaper articles alleging improper campaign spending on the part of Mr. Wilson.  
One was the Article. Another was a November 2, 2007 article in the Globe and Mail  
by reporter Jennifer Ditchburn. Under the headline “Group questions MP’s campaign  
filings”, the article referred to a package of materials provided to the Canadian Press  
 
Lougheed Estate v. Wilson  
Page 27  
and Elections Canada by an anonymous group of “concerned citizens” detailing  
inconsistencies between some of Mr. Wilson’s campaign expenses and his publicly  
filed financial records. The article reviewed several of the alleged inconsistencies,  
including the campaign office space in West Vancouver and “promotional  
umbrellas”.  
[113] Mr. Janke was aware of Mr. Wilson’s resignation from the Liberal Party  
caucus on October 29, 2007.  
[114] On November 3, 2007 a copy of the Anonymous Letter with enclosures was  
delivered in a manila envelope to Mr. Janke’s home. There was no return address  
and the stamps had not been franked. When Mr. Janke reviewed the materials he  
recognized them as the source materials that had been driving the recent media  
stories about Mr. Wilson’s alleged election spending infractions. Mr. Janke did not  
know then who sent him the material, nor does he know now.  
[115] Mr. Janke admitted in cross-examination that the Globe and Mail article  
mentioned only the allegations regarding the Cowrie Street office, the West  
Vancouver office and umbrellas. Nevertheless, he concluded that he had the letter to  
Elections Canada referred to in the article because it contained a direct quote from  
the letter, and the three allegations it reported were among the eight in the letter.  
[116] On November 3 and 4, 2007, Mr. Janke published the contents of the  
Anonymous Letter on his website along with his commentary. A copy of the  
Anonymous Letter is attached to these Reasons as Schedule D.  
[117] The eight “charges” set out in the Anonymous Letter related to the rental of  
the Cowrie Street office in Sechelt, the Marine Drive office in West Vancouver, the  
printing costs incurred for brochures and business cards, Canada Post expenses,  
undeclared donation of umbrellas, advertisement costs with two newspapers, the  
Coast Reporter and the Whistler Question, and costs for an advertisement placed by  
Jamey Kramer in the Whistler Question.  
Lougheed Estate v. Wilson  
Page 28  
[118] Mr. Wilson saw the Anonymous Letter for the first time on Mr. Janke’s  
website.  
Elections Canada  
[119] Mr. Wilson was not aware of a complaint to Elections Canada until  
Ms. O’Connor telephoned him on or about October 25, prior to the publication of the  
Article.  
[120] Mr. Wilson asserts that he resigned from the Liberal Party caucus on the  
expectation that Elections Canada would notify him regarding some form of legal  
process to address the issues and that he would return to the caucus once the  
“pending charges” were addressed and “cleared up”.  
[121] Mr. Wilson, retained counsel, Mr. Straith, to represent him in dealing with  
Elections Canada. Mr. Wilson was informed that, as of December 2007, Elections  
Canada was reviewing the allegations. Representing Mr. Wilson, and acting on his  
instructions, Mr. Straith exchanged correspondence and documents with counsel for  
Elections Canada between November 16, 2007, and July 11, 2008.  
[122] Mr. Wilson entered into a compliance agreement with Elections Canada in  
June 2008. Mr. Wilson was not charged under the Canada Elections Act.  
[123] On July 20, 2008, Mr. Wilson called a press conference and announced that  
he had been cleared by Elections Canada of any “serious financial wrong doing”.  
Mr. Wilson publically admitted that he failed to comply with s. 83 of the Canada  
Elections Act by not appointing an official agent for the campaign before accepting a  
contribution or incurring a campaign expense. He also admitted to accepting 144  
printed umbrellas valued at approximately $711 which was not properly recorded as  
a contribution. Finally, he acknowledged that he had not declared approximately  
$9,000 of printing (brochures, business cards and Christmas cards) as campaign  
expenses.  
 
Lougheed Estate v. Wilson  
Page 29  
[124] Section 517 of the Canada Elections Act addresses compliance agreements.  
Subsection (5) provides that such agreements are inadmissible in evidence against  
the contracting party:  
The fact that a compliance agreement was entered into, and any statement  
referred to in subsection (4) [an admission of responsibility], is not admissible  
in evidence against the contracting party in any civil or criminal proceedings.  
[125] Mr. Janke submits that Mr. Wilson has waived this statutory privilege in two  
respects: first, by holding a press conference in July 2008 at which he referred to the  
compliance agreement and maintained that Elections Canada had cleared him of  
any serious financial wrongdoing; and, second, by his selective reliance on the  
agreement in these proceedings to similarly contend that he was substantially  
cleared by Elections Canada.  
[126] I find that Mr. Wilson has not waived his privilege. As Grauer J. found in an  
earlier ruling in these proceedings (indexed at 2009 BCSC 849), the object of s.  
517(5) is to protect an individual, who has come forward to admit responsibility for  
acts or omissions that constitute an offence under the Canada Elections Act, from  
having those admissions used against him in a subsequent proceeding. The  
privilege that the provision creates is not a confidentiality-based privilege such that  
failure to keep information confidential results in its loss. This is made apparent by s.  
521 of the Canada Elections Act which provides that the Commissioner of Elections  
Canada shall publish a summary of the compliance agreement. The Commissioner  
did in fact publish such a summary in relation to Mr. Wilson on July 9, 2008 pursuant  
to this section.  
[127] Accordingly, the compliance agreement is not admissible against Mr. Wilson.  
[128] I next summarize my findings on the financial management of Mr. Wilson’s  
2005 campaign.  
The 2005 Campaign  
[129] Mr. Wilson initially appointed Elizabeth Wood, a resident of Sechelt, as the  
campaign manager for his 2005 campaign. She had previous experience as a  
 
Lougheed Estate v. Wilson  
Page 30  
campaign manager on three provincial campaigns. Ms. Wood, in turn, arranged for  
Wayne Rowe, a local lawyer from Gibsons, to be appointed as Mr. Wilson’s official  
agent. However, early on in the campaign, Mr. Wilson and Ms. Wood came to a  
parting of the ways and he advised her that he was discharging her as campaign  
manager. In short order, Mr. Rowe resigned as Mr. Wilson’s official agent.  
Mr. Gordon Holley, a chartered accountant who had served as Mr. Wilson's official  
agent for the 2004 campaign, reluctantly agreed to take over as Mr. Wilson's official  
agent for the 2005 Campaign because he recognized that Mr. Wilson was “in a  
bind”.  
[130] Mr. Wilson maintained throughout his testimony that he had appointed Guillio  
Vilas to replace Ms. Wood as his campaign manager. However, on December 28,  
2005 Mr. Wilson sent out an email to “All Key Blair Wilson Campaign Contacts”  
advising them that Kai Nestman was his new General Campaign Manager. This  
discrepancy in the evidence, on what would appear to be a fundamental fact, was  
never explained. In any case, the evidence supports a finding that Mr. Vilas had  
significant involvement in the 2005 Campaign. Neither Mr. Vilas nor Mr. Nestman  
testified at trial.  
[131] The totality of the evidence establishes on balance that:  
Mr. Wilson acknowledged that he incurred campaign expenses prior to  
appointing an official agent for the campaign. The evidence also  
establishes that, in December 2005, there was a gap of several days  
between the date of Mr. Rowe’s resignation and Gordon Holley’s  
appointment as Mr. Wilson's official agent.  
Mr. Holley maintained his own accounting practice from his accounting  
office throughout the campaign. Shortly after he assumed the role of  
the official agent Mr. Holley became aware that a large number of  
campaign expenses had been paid directly by Mr. Wilson. Mr. Holley  
candidly acknowledged that Mr. Wilson largely ran his own campaign  
by incurring and paying expenses personally during the 2005  
Lougheed Estate v. Wilson  
Page 31  
Campaign. In many cases, Mr. Holley was told after the fact that  
Mr. Wilson had incurred and paid expenses without his authorization.  
In other cases, Mr. Holley’s approval of expenses was perfunctory.  
Mr. Holley later reimbursed Mr. Wilson from the campaign account for  
the expenses he submitted.  
Mr. Wilson plainly exercised a considerable degree of control over his  
own campaign financing. Mr. Wilson admits that he paid and was  
eventually reimbursed for over $32,000 in campaign expenses. This  
amount represented over a third of Mr. Wilson’s election expense limit  
of $93,260.52.  
This arrangement was not consistent with the banking requirements  
prescribed by ss. 436 to 438 of the Canada Elections Act in force at  
the time. The purpose of these provisions is to permit transparency in  
campaign financing. In brief, the official agent is responsible for  
administering the financial transactions for the candidate’s campaign  
and must open a bank account to that end. All financial transactions  
relating to the campaign are to flow in and out of the campaign  
account. Although a candidate may enter into contracts for campaign  
expenses (s. 438(5)), only the official agent may pay campaign  
expenses (s. 438(4)). The only exceptions are petty expenses and the  
candidate’s personal expenses, which the candidate is permitted to  
pay.  
As it turned out, some of the inconsistencies identified in the  
Anonymous Letter and verified by Mr. Janke in his blog were the result  
of Mr. Wilson’s payment (and reimbursement) of campaign expenses  
in a manner not contemplated by the Canada Elections Act, as  
opposed to unreported items, as the Anonymous Letter alleged.  
Mr. Wilson’s campaign return listed him as the supplier in relation to 98  
campaign expenses, indicating he had been reimbursed for them from  
Lougheed Estate v. Wilson  
Page 32  
the campaign bank account. As the evidence at trial disclosed, some  
were for expenses the Anonymous Letter alleged had not been  
reported; for instance, the rent for the two campaign offices and some  
of the advertising expenses with respect to the Coast Reporter and  
Whistler Question. However, the payments were not transparent since  
they were reported on the return as payments to Mr. Wilson as a  
supplier.  
In the absence of any evidence to the contrary, I accept that the  
advertisement by Mr. Kramer referred to in the Anonymous Letter  
constituted a third party expense and not a campaign expense.  
As stated above, I accept that the Cowrie Street rent was accounted  
for in Mr. Wilson’s electoral return. However, Mr. Holley was not aware  
that it was Norma who had paid this rent. Therefore, he did not record  
any corresponding loan or donation on the return. On November 25,  
2005, prior to the official commencement date of the 2005 Campaign,  
and at Mr. Wilson’s request, Norma issued cheques to the landlord of  
the Cowrie Street property in Sechelt for the payment of the security  
deposit. She also signed post-dated cheques for the December and  
January rental payments. Mr. Wilson ultimately reimbursed Norma for  
these payments in April 2007.  
Mr. Wilson’s orchestration of the financial transactions relating to the  
Cowrie Street office resulted in considerable confusion and  
misunderstanding. Copies of Norma’s November 25, 2005, cheque  
and two post-dated cheques were enclosed in the Anonymous Letter,  
and in the Package that Mr. Marissen delivered to Mr. McLaughlin  
(discussed below).  
At his press conference in July 2008, Mr. Wilson admitted to not  
reporting $9,000 in printing costs on his electoral return. At trial  
Mr. Wilson acknowledged the business cards and Christmas cards  
Lougheed Estate v. Wilson  
should have been declared as a campaign expense. However,  
Page 33  
Mr. Wilson maintained that once he had been notified by VANOC of  
logo infringement issues he disposed of all the brochures with the  
Olympic logo and that the subject brochures were never used for  
campaign purposes. Accordingly, he asserts that while the brochure  
expense properly should have been reported it would not have counted  
towards his spending limit. Both Ms. Wood and Neil McIver, a  
constituent and an active member of the Conservative Party in the  
Riding, credibly recounted that they had seen the brochures distributed  
during the campaign. The preponderance of the evidence supports a  
finding that at least a portion of the brochures were distributed during  
Mr. Wilson’s campaign and accordingly the printing costs for those  
brochures should have been declared.  
With respect to the donation of the umbrellas, an email exchange with  
the donor shows that Mr. Wilson received a donation of 60 branded  
umbrellas for the campaign with the commercial value of $3,531 plus  
tax. While Mr. Wilson admitted that donation was not recorded in his  
electoral return he maintained that based upon the usage of the  
umbrellas during the campaign the value of the donation was $711.  
I find that Mr. Holley had no knowledge of the umbrella donation or the  
$9,000 printing cost that were omitted from Mr. Wilson’s electoral  
return.  
Mr. Wilson’s counsel attempted to establish in cross-examination that  
Ms. Wood had an ax to grind because she was terminated as  
Mr. Wilson’s campaign manager. While I accept Ms. Wood was deeply  
embarrassed and upset by events, she carried on in such a way as to  
not to prejudice Mr. Wilson’s 2005 Campaign or, for that matter, the  
Liberal Party. Notably, when she was approached by a reporter in mid-  
January 2006 she denied allegations of any improprieties in  
Lougheed Estate v. Wilson  
Page 34  
Mr. Wilson’s campaign. Ms. Wood admitted to sending certain emails  
to Valerie Brown, an accountant with campaign experience, whom she  
considered to be knowledgeable about campaign financing. These  
emails were attached to the Anonymous Letter. I accept Ms. Wood’s  
evidence that she sent the emails in confidence and that they were  
subsequently circulated without her knowledge. Ms. Wood had no  
knowledge that her emails had been distributed until she saw them on  
Mr. Janke’s website.  
Overall, I found Ms. Wood to be a forthright and sincere witness who  
persuasively relayed to the Court her genuine concerns about how  
Mr. Wilson had conducted his campaign. When she reviewed  
Mr. Wilson’s return, on the Canada Elections website she could not  
see the items identified in her emails. While there were some  
inaccuracies in her testimony, and she was mistaken about the  
omission of some items in Mr. Wilson’s return, I am not persuaded that  
these matters impugn the credibility of her evidence as a whole.  
Counsel for Canwest points out that, even though she had never heard  
the recording until trial, the account Ms. Wood’s gave at trial of Guillio  
Vilas offering her cash in a van, while Mr. Wilson was present, was  
completely consistent with the account she gave to Ms. O'Connor in an  
audio recording some six years earlier. I agree. The weight of her  
testimony is not diminished because the incident in the van related to  
pre-writ expenses.  
I also found the two former campaign workers from Powell River,  
Laurie McNeill and Joke Pulman-Tuin to be credible. They both  
endeavoured to be responsive and they responded to questions  
directly without any exaggeration or embellishment.  
During the campaign, Ms. McNeill met with Mr. Wilson and raised her  
concerns regarding Mr. Vilas’ conduct. Mr. Wilson became angry and  
Lougheed Estate v. Wilson  
Page 35  
summarily dismissed her concerns. Mr. Wilson contends that she was  
biased because her position as a constituency assistant did not work  
out. I do not see it that way. I found her to be a forthright witness who  
gave reliable evidence.  
Ms. Pulman-Tuin’s objective records align with her testimony. She  
produced original receipts totalling approximately $500 for campaign  
items. I accept her testimony that Mr. Vilas paid her $500 in cash and  
would not accept the receipts for those items. Although she had been a  
committed supporter of Mr. Wilson’s, Ms. Pulman-Tuin grew  
disillusioned and disappointed with him through the course of the  
2005/2006 campaign.  
The preponderance of the evidence that I prefer supports a finding  
that, during the 2005 Campaign, Mr. Vilas directed the non-receipting  
of expenses and facilitated cash payments for expenses such as for  
lumber, office supplies and food. The evidence as a whole does not  
support Mr. Wilson’s assertion that any expenses paid in cash qualified  
as and were accounted for as “petty expenses under the Election Act”.  
However, on the evidence, I am unable to quantify with any precision  
the amount of the impugned cash payments or non-reporting of  
expenses.  
I accept that Mr. Holley had no knowledge of any cash payments for  
receipts that were never submitted. However, Mr. Wilson’s contention  
that prior to the telephone call with Ms. O’Connor in October 2007, he  
had no knowledge of the allegations of cash payments or the non-  
reporting of expenses does not accord with the probabilities a  
reasonable person would recognize in the circumstances of this case.  
As I mentioned, Laurie McNeill brought these concerns to his attention  
in 2006. Ms. Tyabji also raised this as a concern with Mr. Wilson in  
early 2007, in a discussion I will return to later in these Reasons. I  
Lougheed Estate v. Wilson  
Page 36  
accept that Mr. Wilson did not make any unreported cash payments for  
campaign expenses himself. Balancing the evidence as a whole, I find,  
however, that Mr. Wilson, a chartered accountant by training and  
having exercised a considerable degree of control over his own  
campaign financing, likely turned a blind eye to the cash payments  
Mr. Vilas made.  
Finally, Mr. Wilson did not declare any of the $10,000 he paid to  
Mr. Holley as election expenses. Mr. Holley candidly acknowledged  
that 60% of the time he spent was during the election. Accordingly, an  
additional $6,000 should have been declared on Mr. Wilson’s electoral  
return.  
Removal from the Liberal Caucus of Canada  
[132] In November 2006, four of Mr. Wilson’s supporters in Powell River who had  
assisted with his previous campaigns, including Ms. McNeil and Ms. Pulman-Tuin,  
resigned en masse from the Powell River Riding Association because they had  
grown increasingly disillusioned with Mr. Wilson. This was corroborated by  
Ms. Tyabji. She credibly recounted to the Court that she had received emails and  
telephone calls from former campaign workers who were upset and frustrated with  
the irregularities in Mr. Wilson’s campaign financing and his inaccessibility after the  
election. Despite repeated attempts, Ms. Tyabji was unable to reach Mr. Wilson by  
telephone and she personally observed his closed constituency office in Powell  
River. It was following these resignations that Ms. Tyabji agreed to serve as the vice-  
president of the Powell River Riding Association.  
[133] Prior to the publication of the Article, Mr. Mark Marissen, who at the time was  
a National Campaign Co-Chair of the Liberal Party, was informed by Ms. Tyabji, the  
Power River representative of the Riding Association, that there was a controversy  
brewing about Mr. Wilson and that there may be an unflattering media article  
published.  
 
Lougheed Estate v. Wilson  
Page 37  
[134] Mr. Marissen subsequently received a package of documents pertaining to  
Mr. Wilson. The package contained 24 pages of photocopied cheques and other  
documents (“the Package”). On October 18, 2007 and after a very cursory review of  
the documents Mr. Marissen telephoned Mr. McLaughlin, a lawyer and a member of  
the National Board of Directors of the Liberal Party. Mr. McLaughlin served as the  
constitutional and legal advisor for the Liberal Party. Mr. Marissen asked  
Mr. McLaughlin to review the Package and investigate the matter on behalf of the  
Liberal Party. He informed Mr. McLaughlin that the Province may be doing a story on  
Mr. Wilson. Mr. Marissen also telephoned Mr. Wilson to inform him about the  
existence of the Package. He encouraged Mr. Wilson to speak to Mr. McLaughlin.  
[135] Mr. McLaughlin, who could not draw any firm conclusions from his review of  
the Package, attempted to contact Mr. Wilson to discuss the contents of the  
Package. After leaving several messages for Mr. Wilson, they spoke by telephone  
on October 26, 2007. Mr. McLaughlin arranged for a copy of the contents of the  
Package to be picked up by Mr. Wilson later that day. During their telephone call  
Mr. Wilson informed Mr. McLaughlin that he had spoken to a Province reporter,  
obtained legal advice and would be speaking to the reporter again at 3 p.m. on  
October 26, 2007.  
[136] Mr. McLaughlin left a detailed message with questions for Mr. Wilson on  
October 27, 2007 but he has no recollection of speaking to Mr. Wilson again.  
[137] In a brief telephone call with Ms. O’Connor on October 27, 2007,  
Mr. Marissen advised her that he had passed on documents to the “Green Light  
Committee” and that the Liberal Party was not aware that there had been any  
complaints about Mr. Wilson’s election financing.  
[138] The Liberal Party undertook an investigation into Mr. Wilson’s disclosures.  
Mr. McLaughlin and another lawyer, Dean Crawford, reviewed the disclosures made  
by Mr. Wilson in his 2004, 2005 and 2006 nomination forms. As part of this review,  
they conducted various searches of the Vancouver registries of the B.C. Supreme  
Court and Small Claims Court. They also conducted several searches in the Land  
Lougheed Estate v. Wilson  
Page 38  
Title Office and with the B.C. Registrar of Companies. The review was limited to  
whether there had been full and frank disclosure by Mr. Wilson. Their searches  
revealed that Mr. Wilson, or companies of which he was a director, had been  
involved in as many as 23 legal proceedings that he had not disclosed on his  
nomination forms or at any time thereafter. They concluded that Mr. Wilson was  
required to disclose most, if not all, of these proceedings on his nomination and that  
he had failed to do so.  
[139] Mr. McLaughlin and Mr. Crawford did not engage in a review of the merits or  
outcome of any of the legal proceeding enumerated in their report. Crucially, they did  
not undertake an investigation of any Elections Canada issues.  
[140] Mr. McLaughlin and Mr. Crawford prepared a preliminary report dated  
October 31, 2007. They delivered a copy of the draft report to Mr. Wilson on that  
date. They advised Mr. Wilson that they wished to provide him an opportunity to  
respond to their preliminary findings and would take his response into account in  
completing their final report. Their preliminary conclusion was that Mr. Wilson had  
not fully and frankly completed his nomination forms, nor had he complied with his  
undertakings to the Liberal Party. It was their view that, in failing to do so, Mr. Wilson  
denied the Green Light Committee the opportunity to thoroughly assess his  
suitability as a candidate for the Liberal Party.  
[141] On November 1, 2005, Mr. Wilson requested more time to respond to the  
preliminary report. To allow for fairness and due process on November 8, 2007,  
Mr. Wilson was granted an extension until November 19, 2005. On November 19,  
2005, Mr. Wilson’s counsel sent a response (the “Response”). Mr. Wilson’s primary  
contention in the Response was that he did not disclose the various proceedings  
because they were irrelevant to his candidacy. After reviewing his response  
Mr. Crawford and Mc. McLaughlin finalized their report (the “Final Report”). Their  
conclusions did not change. They forwarded the Response and the Final Report to  
the B.C. Provincial Campaign Co-Chairs.  
Lougheed Estate v. Wilson  
Page 39  
[142] The B.C. Provincial Campaign Co-Chairs were Pamela McDonald and Bruce  
Young. The Party Leader had delegated them the authority to approve candidates in  
B.C. They wrote to Mr. Wilson on December 21, 2007, to inform him that, based  
upon the conclusion contained in the Final Report, the Liberal Party had terminated  
his status as a candidate.  
[143] I accept Mr. McLaughlin’s evidence. I found him to be to be a careful and  
objective witness who provided clear and convincing testimony. I also found  
Mr. Marissen to be a credible witness who provided reliable evidence. I find that  
where their testimony conflicts with that of Mr. Wilson, their testimony is more  
credible and I accept it in preference to Mr. Wilson’s.  
[144] At trial Mr. Wilson maintained that he had in fact disclosed the litigation  
identified in the draft report to the Liberal Party prior to his confirmation as a  
candidate. He contends that his disclosure forms, the ones produced to  
Mr. McLaughlin, were missing the pages that disclosed the pertinent litigation. He  
offered no proof for his assertion. According to Mr. McLaughlin, during the Liberal  
Party investigation in 2007, neither Mr. Wilson, nor his counsel, mentioned that the  
litigation listed in the draft report had in fact been previously disclosed. In the  
absence of any corroborating evidence on the point, and in all the circumstances, I  
found Mr. Wilson’s testimony on this point to be implausible.  
[145] While the brewing controversy in relation to Mr. Wilson and the delivery of the  
Package triggered Mr. McLaughlin’s and Mr. Crawford’s investigation, I accept that  
Mr. Wilson's candidacy in the Liberal Party was terminated for the reasons stated in  
the Final Report: Mr. Wilson had not complied with the disclosure requirements of  
the Liberal Party. The evidence supports a finding that the pertinent investigation  
was undertaken bona fide and was conducted in a fair and objective manner. There  
is no cogent evidence to suggest otherwise. I am satisfied on the totality of the  
evidence that the allegations regarding Elections Canada infractions, the information  
in the Package and the allegations in the Article were all irrelevant to the conclusions  
of the Final Report.  
Lougheed Estate v. Wilson  
Page 40  
[146] In the summer of 2008, Mr. Wilson’s request for reconsideration of his  
candidacy in the Liberal Party and readmission into the national Liberal Caucus was  
refused by the Leader, Mr. Dion. Again, there is no cogent evidence that the refusal  
was based on reasons other than Mr. Wilson’s non-disclosure.  
The Aftermath  
[147] In July 2008 the Province published a further article on Mr. Wilson (“the July  
Article”). The July Article is reproduced in its entirety in Schedule B of these  
Reasons, and the statements that Mr. Wilson claims are defamatory are highlighted.  
[148] The July Article accurately reported on the outcome of the investigation by  
Elections Canada and that Mr. Wilson was challenging the Liberal Party regarding  
their revocation of his candidacy for the next election. It also reported that the claim  
in debt by Mr. Lougheed against Mr. Wilson had been discontinued (although the  
family was looking to pursue Kelly) and that Kelly had filed suit against  
Mr. Lougheed seeking a variation of her late mother’s will.  
[149] Mr. Wilson ran unsuccessfully as a candidate for the Green Party in the  
October 2008 federal election. He then “resurrected’ his leasing company CB Wilson  
Capital Limited and changed the name to Canadian Eco-Equity Corp. He gradually  
developed his leasing business with a focus on high-efficiency lighting and  
geothermal systems.  
[150] After the Wilsons sold their home on Lawson Avenue in 2009, in order to pay  
their outstanding bank indebtedness, they rented a house in West Vancouver for six  
to nine months. They then moved to rental accommodation in Surrey for  
approximately a year.  
[151] Following the issuance of the decision of Ballance J. in the WVA action in  
December 2010, the Wilsons moved to Kelowna.  
[152] In January 2011, shortly after the issuance of Madam Justice Ballance’s  
reasons in the WVA action, the Province published an update and correction to the  
 
Lougheed Estate v. Wilson  
Page 41  
Article in the newspaper and as well as on their website. The correction is attached  
as Schedule C to these Reasons (“the Correction”). The Correction accurately  
reported the judicial findings on the Debt Action. It also reported that the $22,870  
transaction in April 2007, described in the Article as a loan from Norma to  
Mr. Wilson, was in fact a repayment to Mr. Wilson of money he had loaned his  
election campaign fund. The Correction also clarifies that out of these funds Blair  
Wilson had repaid Norma approximately $16,000 for the funds she had lent him in  
the preceding months.  
ISSUES  
[153] I will analyze the issues under the following headings:  
(A)  
Claim in defamation against:  
Canwest defendants;  
Mr. Janke;  
(i)  
(ii)  
(iii)  
(iv)  
(v)  
Ms. Tyabji;  
Tugboat Enterprises; and  
Mr. Lougheed.  
(B)  
(C)  
What, if any, damages should be awarded to Mr. Wilson;  
Claims pursuant to the Business Practices and Consumer Protection  
Act, S.B.C. 2004, c. 2 [“the BPCPA”] against:  
(i)  
Mr. Lougheed; and  
(ii)  
Canwest defendants and Ms. Tyabji; and  
(D)  
Debt claim against Mr. Wilson.  
 
Lougheed Estate v. Wilson  
Page 42  
CLAIM IN DEFAMATION  
Legal Framework  
The defamatory statement  
[154] The law of defamation seeks to protect the worth and value of an individual’s  
reputation without unduly inhibiting freedom of expression.  
[155] To prove a prima facie case in defamation, a plaintiff need only establish  
three elements:  
a)  
the impugned words were defamatory, in the sense that they would  
tend to lower the plaintiff’s reputation in the eyes of a reasonable  
person;  
b)  
c)  
the words referred to the plaintiff; and  
the words were published, meaning that they were communicated to at  
least one person other than the plaintiff.  
Once these elements are established on a balance of probabilities, the law  
presumes the words are false and that the plaintiff has suffered damage: Grant v.  
Torstar Corp., 2009 SCC 61.  
[156] Not every criticism of a person or disparaging comment is defamatory. A  
defamatory statement is one that has a tendency to lower the reputation of the  
person to whom it refers in the estimation of right-thinking members of society  
generally and, in particular, to cause him or her to be regarded with feelings of  
hatred, contempt, ridicule, fear, dislike or disesteem. The test is an objective one:  
Color Your World Corp. v. Canadian Broadcasting Corp. (1998), 38 O.R. (3d) 97  
(Ont. C.A.) at para. 14. The Court of Appeal outlined the right-thinking person  
standard as follows:  
[15] The standard of what constitutes a reasonable or ordinary member of  
the public is difficult to articulate. It should not be so low as to stifle free  
expression unduly, nor so high as to imperil the ability to protect the integrity  
of a person's reputation. The impressions about the content of any broadcast  
     
Lougheed Estate v. Wilson  
Page 43  
- or written statement - should be assessed from the perspective of someone  
reasonable, that is, a person who is reasonably thoughtful and informed,  
rather than someone with an overly fragile sensibility. A degree of common  
sense must be attributed to viewers.  
[157] Whether a statement is defamatory is to be determined from the natural and  
ordinary meaning of the words. Moreover, the publication containing the impugned  
statement must be considered as a whole. The traditional axiom is that “the bane  
and the antidote must be taken together”, that is, a statement taken out of context  
may be considered defamatory but its “sting” may be neutralized by another part of  
the publication.  
Defences  
[158] Once the court finds a statement to be prima facie defamatory, the onus then  
shifts to the defendant to advance a defence that would justify publication of the  
defamatory statement. Because of the low threshold on the plaintiff, most  
defamation actions turn on the applicability of one of the defences.  
[159] Different potential defences are available depending whether the impugned  
statement is fact or opinion. Statements of fact can be defended as truth  
(justification) or public interest responsible communication, while opinion is generally  
defended as fair comment. Both statements of fact and of opinion may attract the  
defence of privilege.  
[160] For this reason, it is important to determine whether the defamatory statement  
is fact or opinion.  
[161] The Supreme Court discussed what constitutes “comment” in WIC Radio Ltd.  
v. Simpson, 2008 SCC 40 (“WIC Radio SCC”) at para. 26:  
… “comment” includes a “deduction, inference, conclusion, criticism,  
judgment, remark or observation which is generally incapable of proof”.  
Brown’s The Law of Defamation in Canada (2nd ed. (loose-leaf)) cites ample  
authority for the proposition that words that may appear to be statements of  
fact may, in pith and substance, be properly construed as comment. This is  
particularly so in an editorial context where loose, figurative or hyperbolic  
language is used (Brown, vol. 4, at p. 27-317) in the context of political  
debate, commentary, media campaigns and public discourse. See also, R. D.  
 
Lougheed Estate v. Wilson  
Page 44  
McConchie and D. A. Potts, Canadian Libel and Slander Actions (2004), at p.  
340.  
[162] Whether a statement is fact or comment must be determined from the  
perspective of a reasonable viewer or reader: WIC Radio SCC at para. 27.  
[163] The primary defences advanced by the defendants in the present case are  
justification, responsible communication, fair comment and qualified privilege.  
Justification  
[164] The defence of justification simply means that the impugned statement is  
substantially true. The burden is on the defendant to prove substantial truth on a  
balance of probabilities. Madam Justice Adair recently summarized the test for  
justification in Casses v. Canadian Broadcasting Corp., 2015 BCSC 2150 at  
para. 550:  
Justification is an absolute defence to defamation. It applies to statements of  
fact. It will succeed if the defendant proves, on a balance of probabilities, the  
truth of what is alleged to be defamatory. However, what is required to be  
proven is not the truth of each and every word or the literal truth of the  
statement. Rather, a defendant must only prove on a balance of probabilities  
that the gist or sting of the defamation was true, and it is sufficient if the  
defendant proves that a defamatory expression was substantially true. Minor  
inaccuracies do not preclude a defence of justification so long as the  
publication conveyed an accurate impression. The test is whether the  
defamatory expression, as published, would have a different effect on a  
reader or listener than what the pleaded truth would have produced. See  
Cimolai v. Hall, at paras. 171-173; Wilson v. Switlo, 2011 BCSC 1287, at  
paras. 440-441; and Jay v. Hollinger Canadian Newspapers, 2002 BCSC  
1840, at para. 4.  
[165] As noted, the defence turns on the sting of the impugned statement and  
whether it would have a different effect on a reader than the truth; see also Jay v.  
Hollinger, 2002 BCSC 1655 at para. 53, where McEwan J. stated that justification  
can only be assessed by comparing the sting of the published words with the effect  
of the actual facts.  
[166] The repetition rule is especially important to the defence of justification. That  
rule holds that a defendant cannot defend a defamation action on the basis that he  
 
Lougheed Estate v. Wilson  
Page 45  
has simply repeated what someone else has said. As the English Court of Appeal  
explained the principle in Roberts v. Gable, [2007] EWCA 721 at paras. 54-55:  
54. The repetition rule is well-established and has an important place in libel  
law. The rule was succinctly described by Lord Reid in Lewis v Daily  
Telegraph Ltd [1964] A.C. 234, 236 as:  
"Repeating someone else's libellous statement is just as bad as  
making the statement directly."  
Indeed it may be much worse:  
"… if the words had not been repeated by the newspaper, the damage  
done by J. [by slandering the plaintiff] would be as nothing compared  
to the damage done by this newspaper when it repeated it. It  
broadcast the statement to the people at large …" Truth (N.Z.) Ltd v  
Holloway [1960] 1 W.L.R. 997, 1003 PC.  
55. Thus the rule is that if A makes a defamatory statement about B and C  
repeats it, C cannot succeed in the defence of justification by showing that A  
made the statement: C must prove the charge against B is true. This is so  
even if C believes the statement to be true and even when C names A as his  
source. Lord Devlin put it succinctly in Lewis v Daily Telegraph at p. 284: "For  
the purposes of the law of libel a hearsay statement is the same as a direct  
statement, and that is all there is to it."  
[167] Accordingly, it is not open to a defendant who republishes a defamatory  
allegation to assert that it is true that the allegation was made; rather, he is in the  
same position as the originator of the allegation and must prove its truth.  
[168] The Supreme Court emphasized the importance of the repetition rule in the  
internet era when defamatory statements “can be reproduced electronically with the  
speed of a few keystrokes”: Grant at paras. 114, 119.  
Responsible Communication  
[169] The defence of responsible communication protects defendants against  
liability for false and defamatory facts in circumstances where the publisher has  
acted responsibly in attempting to verify information on a matter of public interest.  
The defence is thus grounded in the conduct of the publisher rather than the content  
of the publication.  
[170] At issue in Grant v. Torstar was whether the defences for defamatory  
statements of fact should be expanded to reflect the importance of freedom of  
 
Lougheed Estate v. Wilson  
Page 46  
expression, guaranteed by s. 2(b) of the Charter, to a democratic society. Prior to  
Grant, defendants to a defamation action had only two possible defences where the  
impugned publication was a statement of fact: justification and privilege. However,  
as the Court recognized in Grant, neither was particularly well suited to media  
defendants, including citizen journalists. A journalist who had checked sources and  
was satisfied that a statement was substantially true might nevertheless have  
difficulty proving justification in court years after the event. Moreover, qualified  
privilege has traditionally been grounded in special relationships characterized by a  
duty to communicate the information and a reciprocal interest in receiving it; the  
media, on the other hand, communicates information not to identified individuals with  
whom it has a personal relationship but to the public at large.  
[171] The Court expressed concern that these limited defences had “the effect of  
inhibiting political discourse and debate on matters of public importance, and  
impeding the cut and thrust of discussion necessary to discovery of the truth”: Grant  
at para. 57. Nevertheless, it also recognized that an untrue publication, even on a  
matter of public interest, could collide with the competing value of protection of an  
individual’s reputation. As for how to reconcile these competing interests, the Court  
said the following:  
[61] The answer to this argument lies in the fact that a balanced approach to  
libel law properly reflects both the interests of the plaintiff and the defendant.  
The law must take due account of the damage to the plaintiff’s reputation. But  
this does not preclude consideration of whether the defendant acted  
responsibly, nor of the social value to a free society of debate on matters of  
public interest. I agree with Sharpe J.A. that the partial shift of focus involved  
in considering responsibility of the publisher’s conduct is an “acceptable price  
to pay for free and open discussion” (Quan, at para. 142).  
[172] The Court’s analysis was also informed by the evolution of the law in other  
common law jurisdictions to extend qualified privilege to publishers who had acted  
responsibly. Most notably, the British House of Lords in Reynolds v. Times  
Newspapers Ltd., [1999] 4 All E.R. 609, expanded qualified privilege to apply to  
journalists who followed the standards of “responsible journalism” when reporting on  
a matter of public interest.  
Lougheed Estate v. Wilson  
Page 47  
[173] The Supreme Court ultimately concluded that the law of defamation in  
Canada should provide more robust protection of freedom of expression in  
circumstances where publishers could establish that they acted responsibly in  
attempting to verify information on a matter of public interest. Unlike in Britain, the  
Court decided that the additional protection should not be achieved by expanding  
qualified privilege but through the creation of a new and independent defence. In  
recognition of the importance of new forms of communication, the Court called the  
new defence “responsible communication” rather than “responsible journalism” and  
extended it “to anyone who publishes material of public interest in any medium”:  
Grant at para. 96.  
[174] The defence of responsible communication is assessed with reference to the  
broad thrust of the publication in question and has two essential elements: (a) the  
publication must be on a matter of public interest; and (b) the defendant must show  
that the publication was responsible, in that he or she was diligent in trying to verify  
the allegations, having regard to all relevant circumstances.  
a.  
Public Interest  
[175] In determining whether a publication is on a matter of public interest, the court  
must consider the subject matter of the publication as a whole and not scrutinize the  
defamatory statement(s) in isolation.  
[176] Public interest “is not synonymous with what interests the public”: Grant at  
para. 102. It is not confined to matters of government or politics, nor is it necessary  
that the plaintiff be a public figure. The judicial test for what qualifies as being in the  
public interest offers a certain degree of elasticity. The authorities offer no precise  
definition of “public interest”, nor any list of enumerated topics which qualify as falling  
within the public interest. The Court observed that “the public has a genuine stake in  
knowing about many matters, ranging from science and the arts to the environment,  
religion and mortality”: Grant at para. 106. At para. 105 of Grant, the Court stated:  
To be of public interest, the subject matter “must be shown to be one inviting  
public attention, or about which the public has some substantial concern  
because it affects the welfare of citizens, or one to which considerable public  
 
Lougheed Estate v. Wilson  
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notoriety or controversy has attached”: Brown, vol. 2, at pp. 15-137 and 15-  
138. The case law on fair comment “is replete with successful fair comment  
defences on matters ranging from politics to restaurant and book  
reviews”: Simpson v. Mair, 2004 BCSC 754, 31 B.C.L.R. (4th) 285, at para.  
63, per Koenigsberg J. Public interest may be a function of the prominence of  
the person referred to in the communication, but mere curiosity or prurient  
interest is not enough. Some segment of the public must have a genuine  
stake in knowing about the matter published.  
[177] The Court cautioned that care must be taken to characterize the subject  
matter accurately. An overly narrow characterization may inappropriately defeat the  
defence at the outset, while an overly broad characterization may render the test a  
rubber stamp and bring unworthy material within the protection of the defence.  
b.  
Responsible Communication  
[178] The second condition is that the publisher was diligent in trying to verify the  
allegations having regard to all the relevant circumstances. The Court identified a  
non-exhaustive but illustrative list of factors in this regard. Not all will be of equal  
value in assessing responsibility in a given case.  
The seriousness of the allegation  
[179] This factor recognizes that not all defamatory imputations carry equal weight.  
As a matter of proportionality the degree of diligence required in verifying an  
allegation should increase in proportion to the seriousness of its potential effects on  
the person defamed. The more serious the allegation, the more the public is  
misinformed and the plaintiff harmed if the allegation is untrue.  
The public importance of the matter  
[180] Although the subject matter will have already been determined to be of public  
interest, not all such matters are of equal importance. Thus, communications on  
matters of national security, for instance, will invoke different concerns from those on  
“the prosaic business of everyday politics”: Grant at para. 112. The Court identified  
the degree to which the defamatory comment intruded upon the plaintiff’s privacy as  
one way in which the seriousness of the sting might be measured.  
 
Lougheed Estate v. Wilson  
The urgency of the matter  
Page 49  
[181] The timing of the publication is a factor to consider in assessing whether the  
publisher acted responsibly. The Court in Grant said the following on this point:  
[113] As Lord Nicholls observed in Reynolds, news is often a perishable  
commodity. The legal requirement to verify accuracy should not unduly  
hamstring the timely reporting of important news. But nor should a journalist’s  
(or blogger’s) desire to get a “scoop” provide an excuse for irresponsible  
reporting of defamatory allegations. The question is whether the public’s need  
to know required the defendant to publish when it did. As with the other  
factors, this is considered in light of what the defendant knew or ought to  
have known at the time of publication. If a reasonable delay could have  
assisted the defendant in finding out the truth and correcting any defamatory  
falsity without compromising the story’s timeliness, this factor will weigh in the  
plaintiff’s favour.  
The status and reliability of the source  
[182] The less trustworthy the source, the greater the need to turn to other sources  
to verify the allegations. Nevertheless, the fact that the source may have had an axe  
to grind does not necessarily deprive the defendant of protection, provided other  
reasonable steps were taken.  
[183] The Court acknowledged that it may be responsible to rely on confidential  
sources depending on the circumstances; for instance, a defendant may properly be  
unwilling or unable to reveal a source to advance the defence. On the other hand,  
publishing slurs from unidentified sources could be irresponsible depending on the  
circumstances.  
Whether the plaintiff’s side of the story was sought and  
accurately reported  
[184] One of the core factors that will determine whether a publisher acted  
responsibly is the extent to which he or she sought out the plaintiff’s side of the story  
and accurately reported the response. This factor speaks to the essential sense of  
fairness the defence is intended to promote, as “in most cases, it is inherently unfair  
to publish defamatory allegations of fact without giving the target an opportunity to  
respond”: Grant at para. 116. Failure to seek the plaintiff’s side of the story also  
Lougheed Estate v. Wilson  
Page 50  
heightens the risk of inaccuracy since the target may well be able to offer relevant  
information beyond a bare denial.  
[185] The importance of this factor varies with the degree to which fulfilling its  
dictates would actually have bolstered the fairness and accuracy of the report. Thus,  
for instance, if the target could have no special knowledge, then this factor will be of  
little importance.  
Whether inclusion of the defamatory statement was  
justifiable  
[186] Deciding whether the inclusion of the impugned statement was justifiable  
involves a highly fact-based assessment of the context and details of the publication  
itself. In applying this factor the judge should grant generous scope to editorial  
choice.  
Whether the defamatory statement’s public interest lay in  
the fact that it was made rather than its truth (“reportage”)  
[187] The repetition rule, discussed earlier, does not apply to fairly reported  
statements whose public interest lies in the fact that they were made rather than in  
their truth or falsity. Those statements clearly attributed to someone other than, and  
not adopted by, the publisher are known as reportage. As the Court explained:  
[76] “Reportage” refers to defamatory statements clearly attributed to  
someone other than, and not adopted by, the defendant. On one view,  
reportage is simply the accurate reporting of facts — the fact of what  
someone said. Such reportage is essential, the media argue, to  
comprehensive coverage of public debate. Charges flung back and forth  
between contending factions in a dispute are themselves, it is argued, an  
essential part of the story, and will be understood by the public as such.  
However, the reporting of defamatory statements is barred by the “repetition  
rule” of defamation law, which holds that someone who repeats a defamatory  
statement is no less liable than the person who originated it. Recent cases  
suggest that this rule has been attenuated in the context of actions brought  
against media outlets, although whether as a distinct defence or as one of the  
facts to consider in applying the responsible journalism standard remains  
unclear: …  
[188] The Supreme Court resolved the issue by including reportage within the list of  
considerations relevant to whether the impugned communication was responsible. It  
Lougheed Estate v. Wilson  
Page 51  
stated that if the dispute is itself a matter of public interest and the allegations are  
fairly reported, the publisher will incur no liability even if some of the statements  
made may be defamatory and untrue provided that:  
a)  
the report attributes the statement to a person, preferably identified,  
thereby avoiding total unaccountability;  
b)  
the report indicates, expressly or implicitly, that its truth has not been  
verified;  
c)  
d)  
the report sets out both sides of the dispute fairly; and  
the report provides the context in which the statements were made.  
[189] If the trier is satisfied that the statements in question are reportage, he or she  
may conclude that publication was responsible, having regard to the four criteria.  
However, as always, the ultimate question is whether publication was responsible in  
all the circumstances. Reportage is not a distinct and independent defence.  
Any other relevant circumstances  
[190] The Court concluded that ultimately all matters relevant to whether the  
defendant communicated responsibly can be considered.  
[191] When determining responsibility, the court must consider the broad thrust of  
the publication as a whole, rather than minutely parsing individual statements.  
However, where the publication includes statements of both fact and opinion, the  
court may deem it necessary to isolate individual statements to consider the  
applicability of fair comment and responsible communication: Quan v. Cusson, 2009  
SCC 62 at para. 30.  
[192] The responsible communication defence obviates the need for a separate  
inquiry into malice since a defendant who has acted with malice in publishing  
defamatory allegations, by definition, has not acted responsibly.  
Lougheed Estate v. Wilson  
Fair Comment  
Page 52  
[193] Unlike a statement of fact, which purports to assert objective truth and can  
therefore be determined to be accurate or not, an opinion has an element of  
subjectivity which makes it generally incapable of proof. Another feature of opinion is  
that readers are better able to evaluate for themselves a statement presented as  
opinion and are thus less likely to accept it without critical evaluation. For these  
reasons, the common law has long recognized a defence of fair comment.  
[194] In WIC Radio SCC, the Supreme Court recalibrated the defence to bring it in  
line with Charter values and better hold the balance between free expression on  
matters of public interest and the appropriate protection of reputation. In  
strengthening the fair comment defence, the Court acknowledged that “an overly  
solicitous regard for personal reputation should [not] be permitted ‘chill’ freewheeling  
debate on matters of public interest”: WIC Radio SCC at para. 2.  
[195] A defendant must satisfy several elements to avail himself of the defence  
(WIC Radio SCC at para. 28):  
a)  
b)  
c)  
the comment must be on a matter of public interest;  
the comment must be based on fact;  
the comment, though it can include inferences of fact, must be  
recognizable as comment; and  
d)  
the comment must satisfy the objective test of whether it could be an  
honestly expressed opinion on the proved facts.  
[196] Even if the defendant establishes these elements, the plaintiff can defeat the  
defence by proving that the defendant was actuated by express malice.  
[197] With respect to the requirement that the comment be based on fact, the Court  
noted that “[t]he comment must explicitly or implicitly indicate, at least in general  
terms, what are the facts on which the comment is being made”: WIC Radio SCC at  
 
Lougheed Estate v. Wilson  
Page 53  
para. 31. What is important is that the facts be sufficiently stated or otherwise known  
to the readers that they are able to make up their own minds on the merits of the  
comment. If the factual foundation is unstated or unknown, or turns out to be false,  
the defence is not available: WIC Radio SCC para. 31. The Court identified this  
requirement for a factual foundation as an important objective limit to the defence.  
[198] The trial decision in WIC Radio, indexed at 2004 BCSC 754 (“WIC Radio  
BCSC”), provides a more detailed consideration of the requisite factual foundation to  
sustain the defence:  
[56] There is a further qualification on precise truth of a factual foundation.  
The rule is that “the commentator must get his basic facts right” (London  
Artists Ltd. v. Littler, [1969] 2 All E.R. 193 (C.A.) at 198), and “The basic facts  
are those which go to the pith and substance of the matter...”.  
[57] This passage was quoted and adopted in Ross, supra, at para. 71. As  
well, in Kemsley, supra, the House of Lords pointed out that, where the facts  
are not stated in full in the publication but are stated more fully in particulars,  
the failure to prove some of them does not defeat fair comment so long as  
those proven are a sufficient foundation for a person to hold the views in  
question.  
[58] Lord Porter said of particulars set forth in pleadings at p. 506:  
Twenty facts might be given in the particulars and only one justified,  
yet if that one fact was sufficient to support the comment so as to  
make it fair, a failure to prove the other nineteen would not have of  
necessity defeat the respondents’ plea.  
[59] This expression was adopted by the B.C. Court of Appeal in Vander  
Zalm, supra, at page 231.  
[60] Further, in Brown, supra, at pp, 15-50 & 15-51, it is noted that the factual  
foundation must be “substantially true” and not “materially misstated”. In  
Ross, supra, the court held that the words were comment, and that the  
factual underpinning of them was based on facts “either stated in a  
communication or generally known” and proved to be “substantially true”.  
[199] Much of the Supreme Court’s discussion concerned the objective test for  
honest belief. The person making the defamatory statement need not believe the  
defamatory imputation so long as he or she is able to prove objectively that  
someone – even someone “prejudiced … exaggerated or obstinate [in] his views”  
(WIC Radio SCC at para. 62) – could honestly have expressed the impugned  
opinion on the proven facts. The Court recognized that the objective test was not a  
high threshold but reasoned that the latitude it permitted contributed to debate on  
Lougheed Estate v. Wilson  
Page 54  
matters of public interest. Application of an objective standard means that third  
parties, including media organizations, are able to publish the opinions of others  
even if they do not hold those opinions themselves.  
[200] While proof that the person making the defamatory statement subjectively  
and honestly held the belief may be used to satisfy the test, such is not necessary  
for the defence to succeed.  
Qualified Privilege  
[201] The defence of qualified privilege applies to defamatory statements that are  
made on a privileged occasion.  
[202] If a defendant establishes that the defamatory statement was published on an  
occasion of qualified privilege, it affords a complete defence to a claim in  
defamation. The defence of qualified privilege will be defeated if the plaintiff  
establishes malice or that the defendant’s conduct exceeded the limits of the  
privileged occasion: Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R.  
3 at paras. 79-80.  
[203] The defence of qualified privilege arises when a communication is made in a  
manner, and at a time, that is reasonably appropriate in the context of the  
circumstances between two people under a reciprocal obligation to give and receive  
the information. The assessment is an objective one. The essential question is  
whether a reasonable person would feel compelled by a duty to make the  
communication: Fouad v. Longman, 2014 BCSC 785 at para. 82; rev’d on other  
grounds 2015 BCCA 272. Crucially, the privilege attaches to the occasion and not to  
the defamatory words.  
[204] In Wang v. British Columbia Medical Association, 2014 BCCA 162, our Court  
of Appeal clarified at para. 70 what was meant by a privileged occasion, citing Adam  
v. Ward, [1917] AC 309 (H.L.), stated:  
A privileged occasion is … an occasion where the person who makes a  
communication has an interest or a duty, legal, social, or moral, to make it to  
 
Lougheed Estate v. Wilson  
Page 55  
the person to whom it is made, and the person to whom it is so made has a  
corresponding interest or duty to receive it. This reciprocity is essential.  
[205] In Martin v. Lavigne, 2011 BCCA 104, our Court of Appeal’s distillation of the  
animating principles is instructive:  
[35] In sum, the privilege attaches to the occasion and not to the defamatory  
words; absent an occasion of qualified privilege, the law will presume the  
defamatory words were communicated out of actual or express malice.  
However, where the occasion attracts a qualified privilege, the law will  
presume the defamatory words were made honestly and in good faith unless  
actual or express malice is proved.  
[36] The requirement of reciprocity of duty or interest between the publisher  
and the recipient of the defamatory remarks is at the heart of the defence.  
Identifying the duty or interest of both involves a contextual analysis.  
Relevant factors to be considered include “the nature of the statement, the  
circumstances under which it was made, and by whom and to whom it was  
made”: RTC Engineering Consultants Ltd. v. Ontario (2002), 58 O.R. (3d)  
726, 2002 14179 (Ont. C.A.) at para. 16; and see Sapiro v. Leader  
Publishing Co., [1926] 3 D.L.R. 68, [1926] 2 W.W.R. 268 (Sask. C.A.) at  
paras. 13-14. Where the circumstances in which the defamatory words were  
made give rise to a special relationship between the publisher and the  
recipients of the communication, the defence of qualified privilege will be  
available as it is an occasion which the interests of society justify protection  
so as to facilitate an open and frank exchange of communication.  
[Emphasis added]  
[206] In its discussion of qualified privilege in Grant at para. 34, the Court observed  
that the defence has traditionally been grounded in special relationships  
characterized by a “duty” to communicate the information and a reciprocal “interest”  
in receiving it. For this reason, qualified privilege seldom assists media defendants,  
as they communicate information to the public at large as opposed to identified  
individuals with whom they have a special relationship.  
[207] The Court acknowledged that a number of decisions have held that the  
defence is available to media defendants who are able to demonstrate a social or  
moral duty to publish the information and a corresponding public interest in receiving  
it. Nevertheless, it concluded that the threshold for the privilege remained high and  
that the criteria for the reciprocal duty and interest required to establish were  
unclear. Thus, “it remains uncertain when, if ever, a media outlet can avail itself of  
the defence of qualified privilege”: Grant at para. 37.  
Lougheed Estate v. Wilson  
Malice  
Page 56  
[208] A finding of malice will defeat the defences of fair comment and privilege.  
Malice focuses on the personal motives of the defendant. The burden of proving  
malice is on the plaintiff.  
[209] Malice is not confined to its common meaning of personal spite or ill will,  
although these are its most obvious manifestations. Malice includes any indirect  
motive or ulterior purpose other than the public interest that would otherwise give  
rise to the applicable defence: Cherneskey v. Armadale Publishers Ltd., [1979] 1  
S.C.R. 1067 at 1099.  
[210] Madam Justice Kirkpatrick reviewed several leading authorities on malice in  
Smith v. Cross, 2009 BCCA 529, before quoting from a text that conveniently  
distilled the circumstances in which a finding of malice can be made:  
34 In Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004) at 299,  
R.D. McConchie and D.A. Potts reduce this statement to a helpful framework  
for the categories under which a finding of malice can be made. A defendant  
is actuated by malice if he or she publishes the comment:  
i) Knowing it was false; or  
ii) With reckless indifference whether it is true or false; or  
iii) For the dominant purpose of injuring the plaintiff because of spite  
or animosity; or  
iv) For some other dominant purpose which is improper or indirect, or  
also, if the occasion is privileged, for a dominant purpose not related  
to the occasion.  
More than one finding can be present in a given case (McConchie and Potts  
at 299).  
[211] The New Brunswick Court of Appeal discussed the test of dominant purpose  
in Ross v. N.B.T.A., 2001 NBCA 62:  
115 In the leading decision of Horrocks v. Lowe, [1974] 1 All E.R. 662 (U.K.  
H.L.), Lord Diplock articulated the test of the dominant motive to determine  
whether the protection will be defeated. He said, at p. 669:  
"Express malice" is the term of art descriptive of such a motive.  
Broadly speaking, it means malice in the popular sense of a desire to  
injure the person who is defamed and this is generally the motive  
which the plaintiff sets out to prove. But to destroy the privilege the  
 
Lougheed Estate v. Wilson  
desire to injure must be the dominant motive for the defamatory  
Page 57  
publication; knowledge that it will have that effect is not enough if the  
defendant is nevertheless acting in accordance with a sense of duty  
or in bona fide protection of his own legitimate interests. [Emphasis  
added]  
116 The question whether feelings of resentment or indignation can be  
shown to be the dominant motive is discussed in the following passage in  
Brown, The Law of Defamation in Canada, supra, at pp. 16-16.4 to 16.17:  
It is the defendant's primary or predominant motive in publishing the  
defamatory remark that is determinative. "Incidental gratification of  
personal feelings is irrelevant." If the predominant motive is something  
other than the duty or interest giving rise to the occasion, the privilege  
will be lost. Dislike and ill will may be present but actual malice may  
be entirely wanting. The fact that a defendant is annoyed, or dislikes  
the plaintiff, or even contemptuous of him, and takes special delight in  
offending or embarrassing him, and pleasure in the effect of the  
publication, or that he was angry and rude, or indignant and resentful,  
and welcomed the opportunity to expose him, will not defeat a  
privilege if it is otherwise exercised for a proper purpose.  
[Emphasis added.]  
[212] With this legal framework in mind, I turn to consider the analysis in this case.  
Analysis  
Canwest  
Position of the parties  
[213] Mr. Wilson submits he was defamed by the publications and that the  
allegations were made “in the most sensational manner possible without any effort  
made to check out their legitimacy”. He asserts that, on the evidence, the Canwest  
defendants cannot avail themselves of any defence. He seeks a finding of malice  
against Ms. O'Connor for writing a false piece designed to destroy his reputation. He  
claims against the corporate Canwest defendants on the basis that they are  
vicariously liable for Ms. O’Connor’s actions. Mr. Wilson also points to alleged  
deficiencies in the publication of the Correction as grounding a finding of malice.  
[214] The Canwest defendants deny any liability. They rely on the defences of  
responsible communication on matters of public interest, justification and fair  
comment. They maintain that there is no evidentiary basis for a finding of malice.  
     
Lougheed Estate v. Wilson  
Page 58  
They assert that upon consideration of the broad thrust of the publications as a  
whole Ms. O'Connor took adequate steps to research the Article and that overall she  
conducted herself responsibly. Their primary contention is that the Article constituted  
a good faith effort to present observations and documents from those closest to  
Mr. Wilson's election, business and fiscal conduct, and that Ms. O’Connor afforded  
Mr. Wilson ample opportunity for response.  
Are the Articles defamatory  
[215] As the first step in the analysis I find that each of the impugned statements in  
the Article and July Article refer to Mr. Wilson and each was published in the  
Province. The only question is whether they were defamatory.  
[216] To reiterate, the judicial test of what constitutes a defamatory statement is  
one which has a tendency to injure the reputation of the person to whom it refers  
and to lower him or her in the estimation of right-thinking members of society  
generally. An ordinary, right-thinking member of society is someone “who is  
reasonably thoughtful and informed, rather than someone with an overly fragile  
sensibility”: Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, at para. 36.  
A degree of common sense must be attributed to readers.  
[217] In his pleadings, Mr. Wilson alleges that the highlighted statements in  
Schedule A and Schedule B to these Reasons are defamatory. Notably there were  
several matters raised at trial that were not included in Mr. Wilson’s pleadings.  
Accordingly those statements are not actionable in themselves. However, these  
statements are properly considered in determining the overall “sting” of the  
impugned publications and whether the publications as a whole were on a matter of  
public interest.  
[218] In his pleadings Mr. Wilson alleges that in their natural and ordinary meaning  
the words complained of were meant and were understood to mean that Mr. Wilson  
was untruthful with the public in regards to his finances, was a dishonest person,  
was untrustworthy, and had financially betrayed family members. He also alleges  
that the statements in the Article that reference the Anonymous Letter were meant  
 
Lougheed Estate v. Wilson  
Page 59  
and understood to mean that Mr. Wilson was untruthful, intended to deceive,  
committed, and was guilty of, civil, criminal and/or civil misconduct, was  
untrustworthy, and was dishonest as a candidate in the 2006 federal election in his  
completion of his return to Elections Canada.  
[219] In his counsel’s written submissions Mr. Wilson maintains that the meaning a  
reasonable reader would come to, upon reading the publications in full, were that:  
Mr. Wilson borrowed and failed to repay millions of dollars from his in-  
laws;  
Mr. Wilson asked Norma Lougheed for a significant amount of money  
at a time when he knew her to be extremely ill and dying; and  
Mr. Wilson willfully committed serious breaches of the Canada  
Elections Act, in a manner that provided him with an unfair advantage  
in the election by causing him to exceed his spending limit.  
[220] The Canwest defendants counter with the following submissions regarding  
the meanings of the themes in the publication:  
a)  
On the election spending, the publications meant that there were  
allegations of spending infractions to be investigated by the Elections  
Canada Commissioner and, at worst, it appeared there were some  
breaches.  
b)  
On the indebtedness, the publications meant that Mr. Wilson had a trail  
of business debts and that he and his wife had borrowed significantly  
from the Lougheeds for several properties. Additionally they had about  
$2.1 million in bank mortgages.  
c)  
d)  
On the business failures, the publications meant that Mr. Wilson had  
exaggerated his past business success and had been sued over some  
businesses.  
On critical commentary, a reasonable reader would understand that  
certain people expressed views in the Article.  
Lougheed Estate v. Wilson  
Page 60  
[221] With respect to meaning, the court's role is to objectively determine what a  
reasonable and right-thinking reader would have understood from the words that  
were published. The determination of the meanings anchors the analysis because it  
frames what must be proven under the various pleaded defences.  
[222] When there are, as in this case, multiple statements on a related subject,  
referable to each other, the words should be read together in order to determine  
whether the words used are defamatory: Wilson v. Switlo, 2011 BCSC 1287, (aff’d  
2013 BCCA 471), at para. 139. Accordingly, for each subject or theme, I take into  
consideration the entire series of impugned expressions in determining whether the  
statements are defamatory. I agree with the Canwest defendants that a reasonable  
and informed reader would have paid attention not only to the impugned expressions  
but to all the words, including Mr. Wilson’s statement refuting the allegations as well  
as references to various matters as having been alleged or under investigation.  
[223] I conclude that the impugned statements are capable of, and in fact have, the  
following meanings to a reasonable person:  
(i)  
There were allegations of serious infractions of the Canada Elections  
Act during Mr. Wilson's 2006 campaign and those allegations were the  
subject of a complaint to Elections Canada. The substance of the  
allegations was that Mr. Wilson had willfully misled Elections Canada  
on his statement of electoral campaign expenses by intentionally failing  
to report numerous expenses and donations. The implication of the  
allegations was that Mr. Wilson’s improper conduct may have provided  
him with an unfair advantage in the election.  
(ii)  
Contrary to Mr. Wilson’s public representations of fiscal responsibility,  
he and his wife had received and borrowed significant funds from  
Kelly's parents and from various financial institutions. Although there  
were significant amounts owing to the Lougheeds, and without their  
knowledge, the Wilsons encumbered their real estate holdings with  
substantial bank mortgages. Further, and despite the fact that the  
Lougheed Estate v. Wilson  
Page 61  
Wilsons had an outstanding loan with the Lougheeds for the Whistler  
Property, the Wilsons did not inform Mr. Lougheed about the sale of  
the Whistler Property. The impugned statements convey a sense of  
deception of close family members.  
(iii)  
(iv)  
Mr. Wilson had exaggerated his business success and he had a  
history of controversial business affairs with some associated litigation.  
Mr. Wilson asked his terminally ill mother-in law for a loan “on her  
deathbed” a month before she died (the “deathbed loan”). This request  
connotes a sense of exploitation and that Mr. Wilson was a callous  
person who lacked a sense of morality.  
[224] The essential thrust and overarching “sting” of the impugned publications is  
that Mr. Wilson was not the person he had represented himself to be during his  
political campaign and that he was unfit to serve as a Member of Parliament. These  
are serious allegations against an elected official who had sought and received  
public trust during the 2006 election. I am satisfied that, viewed in the context of the  
publication as a whole, the meaning of the impugned statements would tend to lower  
the reputation of Mr. Wilson in the eyes of a reasonable person. I conclude that  
Mr. Wilson has established that the impugned statements are in fact defamatory.  
[225] In the result the onus shifts to the Canwest defendants to establish that one  
or more of the defences apply in order to avoid liability for publishing the Article and  
the July Article.  
[226] I next address whether the Canwest defendants have established that the  
defence of responsible communication on a matter of public interest applies to the  
impugned publications.  
Lougheed Estate v. Wilson  
Responsible communication  
a) public interest  
Page 62  
[227] The starting point in the analysis is assessing whether the publications are on  
a matter of public interest.  
[228] The Canwest defendants submit the overall thrust of both the Article and the  
July Article is on a matter of public interest: namely the fitness for office of an elected  
Member of Parliament.  
[229] Mr. Wilson maintains that the impugned publications do not meet the  
threshold test articulated in the authorities. Accordingly, he argues that the Canwest  
defendants cannot rely on a defence that invokes a public interest consideration.  
Mr. Wilson’s primary contention is that much of the material in the impugned  
publications relates to “inherently private matters’’.  
[230] In assessing public interest the court must consider the subject matter of the  
publication as a whole and whether the overall subject matter is properly  
characterized as of one of public interest. The Court in Grant formulated the test as  
requiring that some segment of the community have “a genuine stake in knowing  
about the matter published”: paragraph 105. The appellate authorities have  
cautioned that the court should be slow to conclude that a publication is not in the  
public interest. In adopting Reynolds v. Times Newspapers Ltd., Canadian courts  
have endorsed the notion that “any lingering doubts should be resolved in the favour  
of publication”.  
[231] In my view, Mr. Wilson seeks to define the constituent elements of “public  
interest” too narrowly. He asserts that the publication could not be in the public  
interest because it covered financial dealings between Kelly and her parents. He  
underscores that, for the most part, the real properties were registered in Kelly’s  
name alone and that he assumed no legal liability for any indebtedness relating to  
those properties.  
   
Lougheed Estate v. Wilson  
Page 63  
[232] I do not find Mr. Wilson’s submission persuasive. A reasonable reader would  
not interpret the allegations of indebtedness in a clinically legalistic manner and  
would instead view the Wilsons as an economic unit typical of many married  
couples. Mr. Wilson acknowledged that in fact, it was him, and not Kelly, that  
principally negotiated the various loans with Norma. It is clear that he considered  
himself jointly responsible for the indebtedness and comported himself accordingly.  
He signed the cheque for the repayment on the Lawson property as well as some of  
the cheques for repayment of the loan for the Whistler property. Moreover and  
crucially, Kelly pledged the subject properties to support the financing of Mr. Wilson's  
businesses. In short, Mr. Wilson’s submissions on this point are misconceived and  
are not borne out on the evidence.  
[233] Similarly, the evidence supports a finding that although Kelly was the sole  
shareholder of Mountainside, from the inception of her marriage to Mr. Wilson, Kelly  
had used the Mountainside income to support the family. Over time she used  
Mountainside assets to cover Mr. Wilson’s business debts, including the operating  
costs of the Steakhouse. There can be no doubt that Mountainside was inextricably  
linked to Mr. Wilson and his business affairs.  
[234] I next address Mr. Wilson’s contention that, in the context of considering  
whether the publications were in the public interest, the Court should turn its mind to  
the alleged breaches of Mr. Lougheed’s fiduciary obligations to Kelly arising from his  
use of certain documents (the” Disputed Documents”). This consideration, however,  
does not inform the determination of public interest.  
[235] In any case, the Disputed Documents, except for the Murdock Report, were  
found among Norma’s records and papers after her death. It is common ground that  
Norma acted as a bookkeeper for Mountainside. Mr. Lougheed assumed ownership  
of his wife’s personal papers and documents on several grounds. He was  
bequeathed her personal effects and was the sole residuary beneficiary of her  
estate. As well, Mr. Lougheed, who was formerly a director and officer of  
Mountainside, was managing its investments at the time of Norma’s death.  
Lougheed Estate v. Wilson  
Page 64  
Moreover, he was a shareholder of Norbill Investments Ltd. and its records were  
available to him irrespective of his status as executor.  
[236] Without ruling on the point, I note that Mr. Straith has provided no authority for  
the proposition that Mr. Lougheed, allegedly as a constructive trustee, was  
constrained in his use of the Disputed Documents. In any case, if Kelly, who is not a  
party to this proceeding, has any actionable claim against Mr. Lougheed’s estate,  
Lynda Lougheed or any other party, whether for breach of confidentiality or  
otherwise, her claims cannot be adjudicated in this proceeding.  
[237] Mr. Wilson also argues that participation of the Canwest defendants in the  
alleged breaches of Mr. Lougheed’s fiduciary duty should weigh against the  
publications being in the public interest. I find there is no foundation in the evidence,  
or in Mr. Wilson’s pleadings, for a claim against Canwest for knowing assistance or  
participation in a breach of fiduciary duty or breach of confidence.  
[238] In all the circumstances, I am not persuaded that the alleged breaches of  
confidence or fiduciary duties by Mr. Lougheed or, for that matter, his alleged  
breaches of the BPCPA, would displace the public’s interest in knowing the  
allegations that call into question Mr. Wilson’s fitness for public office. I am not  
aware that such a proposition finds any coherent support in the authorities.  
[239] In the end, I am satisfied that in this case the impugned publications, read  
broadly and as a whole, relate to a matter of public interest. The essence of the  
public interest invoked in this case is the public’s confidence in a Member of  
Parliament’s fitness for office. Mr. Wilson’s fiscal integrity and past business affairs  
were clearly relevant as he had been appointed the National Revenue critic for the  
Official Opposition. Further, he had campaigned on his fiscal responsibility and  
success as a businessman. Those in the community from whom Mr. Wilson had  
sought and received public trust during the 2006 election had a genuine and  
legitimate interest in knowing about the allegations of his lack of trustworthiness and  
in receiving information that he was not the successful self-made businessman that  
he had held himself out to be when running for public office.  
Lougheed Estate v. Wilson  
Page 65  
[240] In summary, I conclude that the publications read broadly and as a whole are  
in the public interest.  
b) responsibility factors  
[241] Having concluded that the publications were on a matter of public interest, I  
next address whether the defamatory communications were responsibly made. The  
focus of the inquiry is on the conduct of the publisher. The question that lies at the  
heart of the defence is whether the publisher was diligent in trying to verify the  
allegations.  
[242] The authorities mandate a contextual analysis of the standard of conduct  
required of the publisher in any given case. I have set out earlier in these Reasons  
the enumeration of factors that are relevant to the analysis. In evaluating the  
diligence factors the court should assess the story as a whole rather than minutely  
parsing individual statements. The defendant need not establish that it acted as a  
responsible journalist in relation to each defamatory statement if it can establish that  
it acted responsibly in relation to the story as a whole: Quan at para. 98.  
[243] The Canwest defendants submit that the responsible communication defence  
should prevail because Ms. O’Connor conducted her research on Mr. Wilson  
diligently. They submit that she took reasonably appropriate steps to verify the  
allegations in the impugned publications.  
[244] Mr. Wilson counters with the submission that Ms. O’Connor’s sole purpose  
was to write an entertaining and politically devastating story rather than promoting  
any public interest. His primary contention is that the defence of responsible  
communication must fail because Ms. O’Connor and the other Canwest defendants  
were actuated by malice toward him. Mr. Wilson further submits that the defamatory  
statements were not communicated in a responsible manner because:  
The allegations were serious and demanded the highest level of  
verification.  
 
Lougheed Estate v. Wilson  
Page 66  
If there was any public interest in the statement it was low.  
The matter was not urgent.  
Mr. Wilson’s side of the story was not fairly sought with respect to all of  
the allegations, notably the “deathbed loan”, and where a comment  
was sought, it was sought in a manner that can only be described as  
an unfair ambush.  
Ms. O’Connor did not seek verification from those sources who would  
have been in the best position to verify the defamatory statements,  
namely Kelly Wilson and Gary Murdock.  
The tone of the Article is sensational and makes it clear that the story  
was a clear attack of all aspects of Mr. Wilson’s character, rather than  
an even-handed report on a matter of public interest.  
The Article is at times materially misleading by omitting the names of  
key sources and suggesting that Ms. O’Connor spoke with several  
other sources when she in fact did not.  
Ms. O’Connor did not attempt to verify statements in a neutral and  
even-handed manner.  
Finally, none of the defendants’ statements can be characterized as  
“reportage” because they clearly adopted the allegations and did not  
report on the allegations in a neutral manner.  
[245] Keeping in mind that the diligence factors are to be applied “in a practical and  
flexible manner “and that they “serve as non-exhaustive but illustrative guides” I will  
address each factor in turn: Grant at para. 122; Jameel v. Wall Street Journal  
Europe SPRL, [2006] UKHL 44 at para. 56  
Lougheed Estate v. Wilson  
(i) seriousness of the allegation  
Page 67  
[246] The seriousness of the apprehended harm to Mr. Wilson’s reputation required  
a proportionate degree of diligence on the part of Ms. O’Connor in verifying the  
allegations.  
[247] Ms. O'Connor and her editors clearly recognized that the allegations in the  
impugned publications were serious. This was reflected in Ms. O’Connor’s overall  
diligence in investigating the matter. The matter was researched over almost a two  
month period, commensurate with the seriousness of the allegations.  
[248] The evidence supports a finding that Ms. O’Connor was genuine in her efforts  
in searching out the true facts. She spoke to a broad range of people and reviewed  
extensive documentation including documents in the Court Registry and in the Land  
Title Office. She dismissed allegations that she determined were not borne out by  
the objective facts or that were not relevant to the subject of the impugned  
publications.  
(ii) public importance of the matter  
[249] In this case, the public importance of the matter is high as it addresses the  
fitness for office of an elected Member of Parliament.  
[250] Some of the allegations with respect to Mr. Wilson’s campaign financing  
provide an example of impugned statements that were substantially true. Although  
there never was a formal investigation and Mr. Wilson was never charged, there  
were irregularities and infractions of the Canada Elections Act in Mr. Wilson’s 2005  
Campaign. Mr. Wilson characterizes those as “minor and inconsequential breaches”.  
I do not see it that way. Mr. Wilson’s payment (and reimbursement) of campaign  
expenses was effected in a manner not contemplated by the Canada Elections Act.  
Some campaign expenses were not reported. Moreover, I have found there were  
some unreported cash payments for un-receipted expenses. Facts, other than the  
published statements, are properly considered if they go to the truth of the stings  
   
Lougheed Estate v. Wilson  
Page 68  
which are broadly pleaded in this case: Cimolai v. Hall et al., 2005 BCSC 31  
para. 175, aff’d 2007 BCCA 225.  
[251] The statement in the Article that documents pertaining to Mr. Wilson had  
been submitted to the Liberal Party’s Green Light Committee which vets candidates  
was also true. This ultimately led to the Liberal Party terminating Mr. Wilson’s status  
as a Liberal candidate.  
[252] These are matters of high public importance that merit journalistic scrutiny.  
(iii) the urgency of the matter  
[253] When evaluating the urgency of a news matter, consideration will be given to  
a journalist’s need to file timely reports on important events as news is often a  
perishable commodity. However, a journalist's desire to get a “scoop” should not  
“provide an excuse for irresponsible reporting and defamatory allegations”: Grant at  
para. 113. The essential consideration is whether the public’s need to know required  
the defendant to publish when it did.  
[254] As counsel for the Canwest defendants aptly acknowledges, this matter was  
not urgent in the same way that for example, a public health issue might be.  
However, Mr. Wilson continued to sit as an elected official with a minority  
government and there was a realistic possibility of an election being called at any  
time. In any event, both Mr. Dawson and Ms. O'Connor testified that they would  
have made an effort to delay publication if Mr. Wilson had asked for more time to  
provide his response. I accept that this is true.  
[255] Mr. Wilson also submits that Ms. O’Connor should have delayed publication  
in order to provide pertinent documentation to Mr. Wilson. I do not agree. As I will  
discuss in detail shortly, Ms. O’Connor thoroughly put the various allegations to  
Mr. Wilson and he chose not to ask for any documents or to provide any  
documentation to refute the allegations. It was clear that Mr. Wilson had no intention  
of providing any further information to Ms. O’Connor.  
 
Lougheed Estate v. Wilson  
Page 69  
[256] As I mentioned, the matter was researched over an almost two-month period  
commensurate with its importance. In all the circumstances, I accept the Canwest  
defendants’ submissions that a timely news report was justified and there was no  
undue haste in their publishing the Article when they did.  
(iv) status and reliability of the source  
[257] This is a primary consideration when evaluating the responsible  
communications defence.  
[258] Mr. Wilson, as a public figure whose reputation was at stake, was entitled to  
expect that the Canwest defendants would act responsibly. While the matter  
required reasonable efforts at verification of the published allegations, the law does  
not impose a standard of perfection on those communicating on matters of public  
interest: Grant at para. 62  
[259] The Court must assess the reliability of each of the sources for the impugned  
publication and determine whether there was a need for the Canwest defendants to  
use other sources to verify the allegations. Their standard of conduct must be  
assessed having regard to the practical realities.  
2005 Campaign Finances  
[260] It is important to observe that on the pleadings the impugned statements  
regarding campaign financing are limited to paras. 6 - 10, 13, 14(a), 33, 34, 48-50,  
and 56 - 58 of the Article as set out in Schedule A to these Reasons.  
[261] Ms. O’Connor did extensive research before her first meeting with the  
Lougheeds. She reviewed previously published media pieces and publically  
available information on Mr. Wilson such as his campaign materials.  
[262] The July Article cites one sentence from Anonymous Letter (at para. 10).  
Ms. O’Connor relied on other sources for the substantive allegations.  
 
Lougheed Estate v. Wilson  
Page 70  
[263] Mr. Wilson asserts that Ms. O'Connor solicited or manufactured the Elections  
Canada complaint in the Anonymous Letter. I do not see it that way. In support of  
this submission Mr. Wilson relies on an email Ms. O’Connor sent to her confidential  
source. In my view Mr. Wilson misconstrued her email. I find that in the email  
Ms. O’Connor simply sought to ensure, prior to publication, the accuracy of the  
statement that a complaint in fact had been sent to Elections Canada. In referring to  
the Elections Canada complaint in the Article, Ms. O'Connor states that it was sent  
by “a citizen in the riding”. Although the Court in Grant observed that it is preferable  
that statements be attributed, it did not foreclose the possibility that a defendant can  
avail himself or herself with the defence if his or her source is anonymous. Given the  
significant public interest at play here, I do not consider the lack of disclosure of the  
anonymity of the complaint to Elections Canada to be fatal.  
[264] There can be no doubt that the confidential source that provided the  
Anonymous Letter to Ms. O'Connor was Mr. McIver, an active member of the  
Conservative Party in the Riding. His identity was revealed at trial. While it emerged  
during Mr. McIver’s testimony that he had provided the Anonymous Letter to  
Ms. O’Connor, he denied any role in the preparation of the complaint. His  
participation would be troubling if he were the only source of the allegations of  
campaign financing irregularities. However, Ms. O'Connor sought out numerous  
other sources with respect to the election financing issues, including having  
interviewed three former campaign workers from both Sechelt and Powell River.  
[265] Ms. O’Connor interviewed Ms. Wood, Mr. Wilson’s former campaign  
manager, at length and assessed her as a reliable source. She also reviewed the  
documents produced by Ms. Wood. Ms. O’Connor fairly reported in the Article that  
Ms. Wood, who resided in Sechelt, had been fired as Mr. Wilson's campaign  
manager. Ms. O'Connor also spoke to two former campaign workers from Powell  
River: Ms. McNeill and Ms. Pulman-Tuin, who each commented on financial  
irregularities in the 2005 Campaign. Mr. Wilsons submits that each was biased.  
Again I do not see it that way. I found these three witnesses credible and genuinely  
troubled about the irregularities they perceived in the 2005 Campaign. The  
Lougheed Estate v. Wilson  
Page 71  
uniformity of the negative feedback from Mr. Wilson’s former supporters fortifies the  
reliability of the concerns regarding the irregularities in his campaign financing.  
[266] In an even-handed manner, Ms. O’Connor sought out Mr. Wilson's former  
communications director, Christopher Bennett, who provided some positive  
commentary on Mr. Wilson. She included his commentary in the Article. She made  
several attempts to contact Mr. Vilas without success. She spoke to John Moonen  
who had also worked on Mr. Wilson’s campaign. She contacted Mr. Wilson’s official  
agent Mr. Holley. She specifically raised cash payments in their discussion and  
reported his statement that he was unaware of any.  
[267] In my view it is significant that Ms. O’Connor raised the specific allegations  
with Mr. Wilson in their telephone call. She referenced the allegations of unreported  
cash payments by Mr. Vilas for campaign expenses, and that the umbrellas, the  
fleece jackets, the brochures apparently had not been reported on his electoral  
return. She told him questions had been raised about his campaign not having paid  
the commercial rental value for his West Vancouver campaign office.  
[268] Ms. O’Connor also reviewed Mr. Wilson's online electoral return. It was  
reasonable for her to rely on the publicly available return. She contacted Elections  
Canada to confirm the status of the complaint. Mr. Wilson alleges that Ms. O’Connor  
should have taken further steps to review the supporting documentation for his  
online electoral return. He contends that she should have requested this  
documentation from Mr. Holley or the returning officer. I am not persuaded that  
Ms. O’Connor was reasonably required to do so. At trial, neither Mr. Wilson nor  
Mr. Holley could interpret some of the documentation Mr. Wilson argues that she  
should have reviewed. In any case, none of the umbrellas, the brochures or cash  
payments would have been included in the supporting documentation. Ms. O’Connor  
did file a formal Freedom of Information and Protection of Privacy Act, R.S.B.C.  
1996, c. 165, request with Elections Canada but she did not receive the requested  
back-up documentation until several months after the Article was published.  
Lougheed Estate v. Wilson  
Page 72  
[269] Given the broad range of sources she pursued to verify the allegations on  
Mr. Wilson's campaign financing, I find that Ms. O'Connor acted responsibly in  
relying on the sources she did.  
Family and bank indebtedness  
[270] On the pleadings the impugned statements regarding the Wilson’s  
indebtedness include paras. 14(b) and (c), 17-22, 24, 75, 76, 81, 84, 86, 90 of the  
Article and paras. 3 and 13-16 of the July Article.  
[271] It was only after the publication of the Article that Mr. Lougheed and Lynda  
Lougheed ascertained that Kelly had commenced the WVA Action.  
[272] Furthermore, I accept Ms. O'Connor's evidence that, while she was aware  
that Kelly had retained a lawyer and that the Wilsons had discussed potential  
litigation with Ms. Tyabji, she did not know that Kelly had actually commenced the  
WVA Action until after the publication of the Article. In any case, Ms. O'Connor  
reported in the Article that the two families had not been on speaking terms since the  
summer. I am not persuaded that a reasonably diligent reporter would have  
searched the Court Registry to confirm whether or not proceedings had been  
commenced. After being apprised of the litigation, Ms. O’Connor reported in the July  
Article that Kelly had commenced proceedings against Mr. Lougheed with respect to  
her mother’s estate. I am not persuaded that the details of Kelly’s dispute with her  
father over the RIF and the Lexus were in the public interest and therefore pertinent  
to the publications. The focus of the publications was Mr. Wilson’s fitness for office.  
[273] During his submissions Mr. Wilson repeatedly emphasized that in the WVA  
action Ballance J. made determinations that reflected negatively on Mr. Lougheed's  
motivations and overall credibility. Crucially, however, this assessment was made in  
2010 after a lengthy trial and several years after the occurrence of events that were  
material to this case. The task of this Court is to assess, without the benefit of  
hindsight, whether in 2007 it was reasonable for Ms. O'Connor to rely on the sources  
she did and whether her attempts at verification were reasonable.  
Lougheed Estate v. Wilson  
Page 73  
[274] I accept that in 2007 Ms. O'Connor perceived Mr. Lougheed, a grieving  
widower at the time, as a reliable source for the notion that Mr. Wilson was not who  
he had held himself out to be during his campaign. She found Mr. Lougheed’s  
distress and perceived sense of betrayal upon discovering the extent of monies that  
Norma had advanced to the Wilsons, to be genuine.  
[275] While Mr. Lougheed's conduct as an executor and trustee was justifiably the  
subject of the Court's criticism, the plain fact is that Kelly Wilson owed several  
hundred thousand dollars to her parents in addition to their having forgiven  
significant loans. The Wilsons had encumbered properties with bank mortgages  
without the knowledge of the Lougheeds and had listed and sold the Whistler  
property without advising Mr. Lougheed. This family dispute, in itself, would not  
ordinarily engage the public interest. However, in light of the fact that Mr. Wilson  
sought and received public trust by holding himself out as financially responsible, I  
find this dispute satisfies the public interest test.  
[276] In ascertaining the information on the Wilson’s indebtedness, Ms. O'Connor  
worked extensively with Lynda Lougheed. It is not disputed that she acted as  
Mr. Lougheed’s agent in relation to this matter. Lynda Lougheed had direct access  
to Norma’s records as well as to a draft report prepared by the family accountant,  
Mr. Murdock (the “Murdock Report”). The Murdock Report itemized and summarized  
the funds that had been advanced to Kelly and her family over the years. Lynda  
Lougheed at this time also discovered that the Wilsons had not made payments on  
Whistler for several months.  
[277] Ms. O’Connor assessed Lynda Lougheed to be a reliable source. Mr. Wilson  
alleges that Lynda Lougheed had an obvious bias or “axe to grind” because of a  
perceived bitterness towards her step-sister Kelly. This contention is not borne out  
on the evidence. I found Lynda Lougheed to be a credible witness who was  
genuinely concerned that the public know the truth about Mr. Wilson. She took her  
role in marshalling the pertinent information seriously. I accept her evidence that  
after Norma’s death her father enlisted her assistance in reviewing Norma’s records  
Lougheed Estate v. Wilson  
Page 74  
and that, at all material times, she acted within the scope of her authority in her  
interactions with Ms. O’Connor. I am not persuaded that the fact that Lynda  
Lougheed's name was omitted from the Article is a significant consideration as was  
alleged by Mr. Wilson. Ms. O’Connor clearly refers to the Lougheed family in the  
Article. In my view that was sufficient.  
[278] Moreover and crucially, Ms. O’Connor did not rely solely on what she was told  
by Lynda Lougheed and Mr. Lougheed. Ms. O’Connor insisted on reviewing  
documentation from the accountant, Mr. Murdock, Norma’s records and relevant  
Land Title Office documents. Notably, Ms. O’Connor included in the Article the fact  
that Kelly was the registered owner of the subject properties. The totality of the  
evidence supports a finding that Ms. O’Connor was persistent in her efforts in  
eliciting more information, documents, and explanations. In her testimony Lynda  
Lougheed described Ms. O’Connor’s conscientious approach to verification of the  
facts and the thoroughness of her research. I accept her evidence on this point.  
[279] Mr. Wilson criticizes Ms. O’Connor for relying on Mr. Murdock’s report without  
having spoken to him directly. The fatal flaw in this submission is there is no  
evidence as to what Mr. Murdock would have said about the various loans. It is clear  
from Madam Justice Ballance’s reasons that her findings on the indebtedness were  
predicated to a considerable degree on the evidence of Mr. Wilson and Kelly  
regarding the arrangements they had made directly with Norma. There is no  
evidence that Mr. Murdock was privy to that information.  
[280] In all the circumstances I conclude that responsible reporting did not require  
Ms. O’Connor to speak to Mr. Murdock. Her failure to do so was neither reckless nor  
evidence of malice.  
[281] Mr. Wilson submits that the Murdock Report is hearsay evidence. The  
Canwest defendants maintain that the portions prepared by Lynda Lougheed are not  
hearsay because she testified at trial. Further, they assert that other portions of the  
report are admissible as business records and that Norma’s handwritten notes,  
Lougheed Estate v. Wilson  
Page 75  
because of her death, are admissible under the “principled approach” to hearsay  
expounded by the Supreme Court of Canada in R. v. Khelawon, 2006 SCC 57.  
[282] It is not necessary to make any determination on whether the materials are  
admissible for the truth of its contents. The critical question for this Court is whether  
in all the circumstances, Ms. O’Connor acted responsibly in communicating on a  
matter of public interest, including an assessment of the materials that she relied on  
to source and corroborate her news story. Any purported hearsay statements relied  
upon by Ms. O’Connor are admissible for the limited purpose of the Court assessing  
whether or not she was responsible in her verification efforts.  
[283] Mr. Wilson also maintains that the Murdock Report is not capable of  
supporting or verifying the defamatory statements. He alleges that the document is  
without any logical or coherent structure and does not reference its source  
information. For the reasons that follow, I reject this submission.  
[284] The documents the Lougheeds made available to Ms. O’Connor included  
financial records kept by Norma, Norma’s banking records and passbooks, and  
Norma’s handwritten notes and documents pertaining to the acquisition and disposal  
of real estate assets acquired by the Wilsons. Again, these documents are  
admissible for the limited purpose of assessing Ms. Connor’s verification efforts and  
whether she had a reasonable belief in the truth of the statements she published.  
[285] My review of the documents that were made available by the Lougheeds to  
Ms. O’Connor show the following:  
a)  
Norma's notes that were included in the documentation provide a  
reasonable basis on which to conclude that the $13,460 debt on  
Jefferson Avenue remained outstanding. Specifically, there was  
Norma’s handwritten note in her bank passbook (“Norma’s Note”)  
which indicated that the balance of $13,460.45 remained outstanding  
on the Jefferson property.  
Lougheed Estate v. Wilson  
Page 76  
b)  
There was no documentation provided to Ms. O'Connor that would  
have shown that the $171,000 loan on Lawson Avenue had in fact  
been paid. As it turned out Mr. Wilson had paid the debt with a cheque  
payable to Norbill Investments which was Norma and William  
Lougheed’s holding company. However the cheque was not produced  
by Mr. Wilson until 2010, several years after the publication of the  
Article.  
c)  
The reference in the Murdock Report to “Norma's note indicating  
repayment” on Lawson Avenue and Gordon Avenue was clearly an  
error. This is a reference to Norma’s handwritten post-it note in her  
passbook. Norma's note indicated that $582,557 was in fact  
outstanding. $582,557 is reflected as an outstanding balance on both  
the post-it note and in the Murdock Report. Additionally, the  
Lougheeds produced a copy of the Land Title Office search on which  
Norma had written a notation that the balance owing on the Jefferson  
property was $13,340.65 and the outstanding balance on Gordon  
Avenue was $569,097. Moreover the reference to “Norma’s note  
indicating repayment” was clearly not accurate as the Wilsons never  
repaid the loan on Gordon Avenue. Rather, Norma forgave the  
outstanding balance such that that Gordon Avenue property was a gift  
to Kelly.  
d)  
e)  
There was no written record in the documents provided to  
Ms. O’Connor that Norma either eventually forgave the loan on the  
Gordon Avenue property.  
Ms. O’Connor was mistaken about the Pemberton Property. However  
Mr. Wilson makes no complaint about para. 78 of the Article which  
references the Pemberton Property.  
In any case, and although the Lougheeds never advanced new funds  
for the Pemberton property, the documents indicate otherwise. The  
Lougheed Estate v. Wilson  
Page 77  
documents provided to Ms. O’Connor included Norma's handwritten  
note referencing a property in Pemberton with a selling price of  
$325,000 and a document in Norma’s handwriting titled “Kelly Re  
Pemberton Loan”. It is true that Ms. O’Connor did not conduct a Land  
Title Office search to verify the legal description in Norma’s note.  
However, given her overall conscientious approach, Ms. O’Connor was  
not required to meet a standard of perfection.  
f)  
The amounts outstanding on Roberts Creek and the Whistler  
properties as reported in the Article were substantially true.  
Mr. Lougheed’s assertion at para. 81 of the Article, that the Wilsons did  
not inform him about the sale of the Whistler property, is also true.  
g)  
h)  
The allegation in para. 84 of the Article that the accountant could not  
find evidence of full loan repayment is substantially true.  
The allegations in para. 86 of the Article with reflect to the quantum of  
funds received by the Wilsons were supported by Mr. Murdock’s  
summary. The amount of the dividends listed is substantially true.  
Although it has turned out not to be true, the jewelry is listed in  
Mr. Murdock’s report as having an estimated market value of $2.0  
million.  
[286] In my view, a reasonable person would accept that, cumulatively,  
Ms. O’Connor’s sources on the funds advanced by the Lougheeds were reliable.  
Ms. O’Connor reviewed Mr. Murdock’s Report, Norma’s various and pertinent  
papers and the Land Title Office searches. However, the most significant factor in  
assessing the adequacy of Ms. O'Connor's attempts at verification was the fact that  
she put the precise amounts allegedly owing on each of the Properties to  
Mr. Wilson. He declined to provide any substantive response or clarification. After  
all, he and Kelly were in the best position to clarify the actual status of the  
outstanding indebtedness to the Lougheeds. Instead, he permitted the inaccuracies  
Lougheed Estate v. Wilson  
Page 78  
to endure despite the fact that he had relevant information that would have bolstered  
the fairness and accuracy of the story.  
[287] I turn to the collateral mortgages. Ms. O’Connor accurately reported the face  
amounts of the registered bank mortgages. The Article reported $2.1 million in  
mortgages and I have concluded that the Wilsons owed $1.8 million to the banks. I  
find that the allegations in relation to bank indebtedness in the Article were  
substantially true. Additionally, Ms. O’Connor reviewed court documents to verify  
that there had been liens filed on various properties. The published information was  
also substantially true.  
[288] In para. 22 of the Article, Mr. Lougheed alleges that he was owed $200,000 in  
relation to an investment he made in Mr. Wilson’s company. While, on balance, I am  
not persuaded that this was true, there is documentation in Norma’s handwriting  
produced by the Lougheeds that supports such an allegation. Crucially,  
Ms. O’Connor put this allegation squarely to Mr. Wilson but for reasons never  
explained at trial, he declined to make any comment or refute the allegation.  
[289] I find no merit in Mr. Wilson's submission that Ms. O'Connor should have  
contacted Kelly Wilson directly prior to publication. First, the story was about  
Mr. Wilson not Kelly. Second, Mr. Wilson indicated in his discussion with Ms.  
O'Connor that he would be discussing these matters with Kelly.  
[290] In all the circumstances, I conclude that Ms. O'Connor acted responsibly in  
relying on the sources she did with respect to indebtedness. A reasonable person  
would accept her sources as reliable. She was reasonably diligent in her attempts to  
verify the debt allegations.  
Business Affairs  
[291] Mr. Wilson’s past business controversies was the principal subject of the  
October 29 story, but as I mentioned that claim was abandoned at trial. In the Article,  
the only words complained of were in para. 14 (d) that "Wilson misled the media  
about the true extent of his business success…” In the July Article, the only words  
Lougheed Estate v. Wilson  
Page 79  
complained of regarding this subject were “history of troubled financial and business  
transactions” at para. 2 and the allegations at para. 3 dealing with past litigation  
wherein Ms. O’Connor stated that “the cases were settled out of court and the  
allegations remain unresolved”. She also referenced various disputes associated  
with his restaurant businesses.  
[292] In her research Ms. O’Connor spoke to various of Mr. Wilson’s former  
business associates, including Mr. Taylor, Mr. Tanti and Mr. Condly. She reviewed  
the pertinent court documents.  
[293] A reasonable person would accept Ms. O’Connor’s sources as sufficiently  
reliable.  
[294] The defence of fair reporting privilege also applies to the statements  
regarding the past lawsuits: M.D. Mineral Search Inc. v. East Kootenay Newspapers  
Ltd., 2002 BCCA 42. A reasonable reader would understand that the lawsuits  
referred to were disputed and settled out of court. The statement in the July Article  
that the allegations remain unresolved clearly pertains to the fact that the allegations  
were not resolved by the court.  
[295] Based upon my findings of fact, set out earlier in the section entitled Overview  
of Mr. Wilson’s Business Endeavours, I conclude that the allegations in the  
impugned publications regarding Mr. Wilson having exaggerated his past business  
success during his campaign and his history of business controversies were  
substantially true.  
Deathbed Loan  
[296] Ms. O'Connor was provided with a copy of a bank draft dated April 22, 2017,  
for $22,840.82 payable to Blair Wilson. It was photocopied on a sheet of paper along  
with a handwritten thank you note from Mr. Wilson to Norma. The evidence does not  
establish who photocopied the bank draft together with the thank you note. The  
Lougheeds told Ms. O’Connor that Mr. Wilson had asked Norma for a loan shortly  
before she died. This was referred to throughout the trial as the “deathbed loan”.  
Lougheed Estate v. Wilson  
Page 80  
[297] Significantly, however, the document provided by the Lougheeds was not a  
cheque. It was a bank draft. It was not signed by Norma and her name does not  
appear anywhere on the bank draft. The word “loan repayment” is written on the  
bank draft. The bank draft was accompanied by another bank draft of the same date  
for $16,840.82 payable to Norma. Ms. O’Connor made a notation “what’s this” on  
this bank draft. This reasonably should have alerted Ms. O’Connor that this was not  
in fact a loan from Norma to Mr. Wilson.  
[298] Both Lynda and Mr. Lougheed raised questions on the documentation and left  
it to Ms. O’Connor to investigate the matter. Ms. O’Connor published the allegation  
notwithstanding the unresolved questions surrounding the transaction.  
[299] As it turned out the allegation regarding the deathbed loan was plainly untrue.  
[300] I agree with Mr. Wilson that this particular allegation was not fairly or  
accurately presented to him by Ms. O’Connor in their telephone interview.  
Ms. O’Connor informed Mr. Wilson that Mr. Lougheed alleged that he had a record  
of a request for about $22,840 from Norma shortly before she passed away and that  
there was a cheque written to him. This description was not accurate.  
[301] In all the circumstances, I cannot conclude that a reasonable person would  
have considered Ms. O’Connor’s sources pertaining to this issue as reliable.  
However, I find that Ms. O’Connor was genuinely mistaken about this transaction.  
She was neither reckless in her approach nor actuated by malice.  
(v) whether the plaintiff's side of the story was sought and  
accurately reported  
[302] This has been described in the jurisprudence as a “core” factor. In this case it  
merits particular emphasis.  
[303] Conducting herself responsibly, Ms. O’Connor made a concerted effort to  
obtain Mr. Wilson’s side of the story. Mr. Wilson and Ms. O’Connor spoke twice on  
the Thursday before the Article was published. Mr. Wilson sought and obtained legal  
advice in the interval between their two telephone calls. Although during their first  
 
Lougheed Estate v. Wilson  
Page 81  
call Ms. O’Connor did tell Mr. Wilson that she needed his original comment on the  
allegations later that same day, she scheduled further calls on the Friday and then  
again on Saturday to review the matter further with Mr. Wilson. Mr. Wilson missed  
both the later calls that Ms. O’Connor had scheduled. Notably, in their initial  
discussion Mr. Wilson indicated that he would get back to Ms. O’Connor with  
something “more concrete” with respect to the family loans but that never  
materialized.  
[304] Based upon the audio recording of Ms. O’Connor’s telephone discussions  
with Mr. Wilson I find that Ms. O’Connor provided Mr. Wilson with a fair opportunity  
to respond to the allegations she raised. I agree with Canwest that Ms. O’Connor  
was especially accommodating. She invited Mr. Wilson to provide documentation or  
records to refute the allegations and to call her back after he spoke to his family.  
Further, she informed him of some of the people she had been speaking to and  
indicated she would be happy to hear his assessment of them and their possible  
motivations. By scheduling the further calls she effectively gave him three days to  
collect his evidence and present his response.  
[305] I reject Mr. Wilson’s characterization of the interview as a last minute attempt  
at an “ambush” interview that was intended to place Mr. Wilson in “a position of  
discomfort and disadvantage”. I agree with the Canwest defendants that interviewing  
the subject is logically the last step in the investigative process. As I mentioned  
earlier, I accept as true Mr. Dawson’s and Ms. O’Connor’s assertion that they would  
have given Mr. Wilson more time to respond had he requested it.  
[306] It is true that Ms. O’Connor mentioned the assessment of this story as  
“preliminary” in the “off the record” portion of their discussion, which was an  
unfortunate choice of words. However, balancing the totality of the evidence it can  
reasonably be inferred that the limited statements Mr. Wilson decided to provide to  
Ms. O’Connor were all he was prepared to provide. That was his decision.  
Ms. O’Connor included every statement that Mr. Wilson provided, with the exception  
of those he asked to be “off the record”.  
Lougheed Estate v. Wilson  
Page 82  
[307] Mr. Wilson emphasizes in his submissions that, during their telephone  
discussion, Ms. O’Connor did not mention several of the allegations that were  
eventually published. Notably, some of the matters he raises were not included in his  
pleadings and the claim in relation to the statement about his brother and his parents  
was abandoned at trial. Responsible communication required Ms. O’Connor to seek  
Mr. Wilson’s side of the story. She put the key allegations to him during their  
telephone interview. In light of the fact that Mr. Wilson did not avail himself of the two  
further opportunities to discuss matters with Ms. O’Connor it would be most unjust if  
he were to be allowed to defeat the defence by arguing that he was not given a fair  
opportunity to respond to the particular allegations he now says were not put to him.  
[308] In short, Mr. Wilson’s refusal to further participate in the interview process  
does not defeat the fact that Ms. O’Connor made reasonable efforts to seek his side  
of the story.  
(vi) whether the inclusion of the defamatory statement  
was justifiable  
[309] Whether the inclusion of a particular defamatory statement in an impugned  
publication is necessary to communicate on a matter of public interest necessarily  
engages a significant degree of editorial judgment. Such editorial choices involve a  
variety of considerations and should be “granted generous scope” by the courts:  
Grant at para. 118.  
[310] In this case, I am satisfied that Ms. O'Connor focused only on matters that  
were pertinent to the public interest and in particular to Mr. Wilson's financial  
integrity. She chose not to pursue or include statements that pertained to  
Mr. Wilson's alleged personal and private transgressions.  
[311] Ms. O'Connor's evidence, which I accept, was that she included the plastic  
surgery expense paid for by Norma, in para. 86 of the Article, as an example of the  
Wilson's incurring frivolous expenses despite their significant debt load.  
 
Lougheed Estate v. Wilson  
Page 83  
(vii)) whether public interest of the defamatory statements  
lay in the fact that it was made rather than its truth:  
reportage  
[312] As I set out earlier in these Reasons, the repetition rule does not apply to  
fairly reported statements whose public interest lies in the fact that they were made  
rather than in the truth of the allegations: Grant at para. 120. It bears repetition that if  
a dispute is itself a matter of public interest and the allegations are fairly reported,  
the publisher will incur no liability even if some of the statements made may be  
defamatory and untrue provided that:  
(i)  
the report attributes the statement to a person, preferably identified,  
thereby avoiding total unaccountability;  
(ii)  
the report indicates, expressly or implicitly, that its truth has not been  
verified;  
(iii)  
(iv)  
the report sets out both sides of the dispute fairly; and  
the report provides the context in which the statements were made.  
[313] Given the principled rationale of the Supreme Court for the formulation of the  
new media defence of responsible communication, I am satisfied that as long as the  
four criteria are satisfied, reportage encompasses the reporting of comments  
attributed to someone other than, and not adopted by Canwest.  
[314] Overall, the dominant public interest in reporting the statements pleaded as  
defamatory by Mr. Wilson (specifically paras. 2, 3, 10, 12, 24, 33, 34, 49, 50, 56, 57,  
58, 61, 62, 63, 94, 97 and 98 in the Article and paras. 14, 15 and 16 in the July  
Article) lies both in the nature of allegations against an elected Member of  
Parliament and in the categories of persons who raised concerns about Mr. Wilson's  
fitness for office: his campaign workers, his family, the leadership of his political  
party, and his business associates. The nature of each of the controversies is fairly  
described. The reporting of the allegations of electoral irregularities, the dispute with  
a close family member over matters of fiscal integrity, and the reporting of  
 
Lougheed Estate v. Wilson  
Page 84  
Mr. Wilson’s past controversial business dealings, when viewed through the lens of  
the Liberal Party's Greenlight Committee conducting a review of Mr. Wilson’s  
candidacy, underscores the public interest that was engaged in this case.  
[315] The fact that a complaint about a sitting Member of Parliament had been  
made to Elections Canada clearly is newsworthy and meets the public interest test.  
The Canadian public had a vital interest in knowing that there were allegations of  
improper campaign financing by someone entrusted with public finances. The fact  
that the Anonymous Letter was sent by an unidentified person, and attributed to an  
unidentified person in the Article, is not fatal to the defence. The statements made  
by Mr. Wilson's former campaign manager and former campaign workers, all of  
whom were identified in the Article, also raised questions regarding Mr. Wilson’s  
campaign financing. Ms. O’Connor carefully identified that some of Ms. Wood’s  
allegations were supported by documentation but that other allegations were  
undocumented.  
[316] The Article clearly sets out the context in which the allegations had been  
made and fairly sets out Mr. Wilson’s and Mr. Holley’s response to the allegations. I  
agree with Canwest that the allegations regarding campaign financing were  
presented as being under consideration and that a reasonable reader would plainly  
understand that they were not yet proven.  
[317] Contrary to Mr. Wilson’s submissions, a reasonable reader would not  
perceive that Ms. O’Connor had adopted the allegations in relation to improper  
campaign financing.  
[318] Moreover, in the July Article, Canwest fairly and accurately reported on  
Mr. Wilson’s press release regarding the outcome of the Elections Canada  
investigation. In doing so they comported themselves responsibly. They reported -  
pursuant to his press release - that he was found to have committed three breaches  
of the Canada Elections Act and that the other allegations of financial misconduct,  
including allegations of cash payments, were deemed insufficiently substantiated or  
unfounded.  
Lougheed Estate v. Wilson  
Page 85  
[319] I turn to the debt allegations.  
[320] In the unique circumstances of this case I find the public interest in  
Mr. Lougheed’s statements regarding Mr. Wilson’s fitness for office lay in the fact  
that he made the statements. The fact that a close family member, with intimate  
familiarity with a Member of Parliament, took the extraordinary step of coming  
forward with these allegations is newsworthy. In addressing the criteria for reportage  
formulated in Grant, Mr. Lougheed’s statements were clearly reported as his  
assertions of Mr. Wilson’s unfitness for office and as his estimates of the amounts  
owing. Ms. O'Connor did not adopt his statements or assert what was unpaid. The  
context of the dispute is apparent and a reasonable reader would be alerted to the  
unproven nature of the allegations. Mr. Wilson's response to the allegations is fairly  
reported in the Article. As I mentioned earlier, it is clear from the Article that the  
relationship between the Wilsons and the Lougheeds was fractured, giving context  
to the statements.  
[321] Again, Canwest acted responsibly in reporting additional information as it  
came to light. The July Article references the lawsuit launched by Mr. Lougheed and  
fairly reports Mr. Wilson’s side of the story. It also reports that Kelly Wilson had  
launched the WVA action against Mr. Lougheed.  
[322] Mr. Lougheed’s statement regarding the deathbed loan satisfies the  
requirements for reportage. However, as the Court in Grant stated at para. 121 the  
ultimate question remains whether the publication of the allegation was responsible  
in all of the circumstances. I will return to this question later in these Reasons.  
[323] In summary, to the extent Ms. O’Connor may have attracted liability for  
reporting the defamatory statements of others, I am satisfied that she met the four  
requirements for reportage prescribed by Grant. It remains to be considered whether  
the publication of the Article and the July Article is protected as responsible  
communication more broadly.  
Lougheed Estate v. Wilson  
(viii) other relevant considerations  
Page 86  
[324] In Grant, the Court stated at para. 122 that the enumerated factors serve as  
“non-exhaustive but illustrative guides” and other relevant matters may inform the  
court's analysis of whether the defendant communicated responsibly.  
[325] In addressing the tone of a publication the Court observed at para. 23 that:  
Not all factors are of equal value in assessing responsibility in a given case.  
For example, the “tone” of the article (mentioned in Reynolds) may not  
always be relevant to responsibility. While distortion or sensationalism in the  
manner of presentation will undercut the extent to which a defendant can  
plausibly claim to have been communicating responsibly in the public interest,  
the defence of responsible communication ought not to hold writers to a  
standard of stylistic blandness: see Roberts, at para. 74, per Sedley L.J.  
Neither should the law encourage the fiction that fairness and responsibility  
lie in disavowing or concealing one’s point of view. The best investigative  
reporting often takes a trenchant or adversarial position on pressing issues of  
the day. An otherwise responsible article should not be denied the protection  
of the defence simply because of its critical tone. [Emphasis added.]  
[326] Mr. Wilson asserts that the tone of the impugned publications should  
disentitle the Canwest defendants from claiming they were reporting allegations on a  
matter of public interest as opposed to adopting those allegations. I do not agree.  
Ms. O'Connor fairly reported both sides of the story, to the extent she was able to,  
given Mr. Wilson's decision not to avail himself of the opportunity to refute the  
allegations. While the tone of the publications could be fairly characterized as  
critical, I am not persuaded the manner of presentation amounted to distortion as  
that term is understood in Grant.  
[327] Overall, I found Ms. O’Connor to be an experienced and conscientious  
investigative journalist who spent significant time researching the story. She worked  
with, and under the guidance of, a senior handling editor, Mr. Dawson. I am not  
persuaded that Mr. Dawson’s generalized statements at trial, some eight years after  
publication, in relation to the desirability of obtaining documentary corroboration of  
facts, undermines Ms. O’Connor’s extensive investigative efforts in 2007. The totality  
of the evidence demonstrates that she canvassed a broad range of sources.  
Ms. O’Connor contacted numerous people, who gave similar accounts, and the  
record of her audio interviews shows the significant number of sources she  
 
Lougheed Estate v. Wilson  
Page 87  
interviewed. She approached her research diligently and with integrity. Her extensive  
notes also reflect the breadth of her investigative efforts. She gave Mr. Wilson a full  
opportunity to present his side and arranged follow-up opportunities. She reported  
everything he chose to say.  
[328] The Canwest defendants assert that the evidence supports a finding that  
Ms. O’Connor consistently pressed for more information and documentation in her  
investigation. I agree. Further, Ms. O'Connor sought out legitimate explanations,  
where there were such explanations, and discarded unsubstantiated criticisms. By  
way of example, she satisfied herself that Mr. Wilson had properly accounted for a  
$5,200 donation. She did not include the allegations of forgery or any other alleged  
but unsubstantiated transgressions. I also accept Ms. O'Connor did not approach the  
story with a conclusion in mind; she cared deeply about getting it right. Her email in  
which she expresses that the story “saddened” her fortifies my conclusion.  
Conclusion  
[329] In Quan, the Supreme Court clarified that when determining responsibility, the  
publication should be considered as a whole rather than “minutely parsing individual  
statements”. I am not aware of any authority that has confronted the defence when  
there is more than one theme in the publication, such as in the subject publications.  
In my view, given the doctrinal underpinnings of the defence, where there is more  
than one theme to the story, the court correspondingly must consider the  
responsibility factors in relation to each individual theme as long as the publication of  
each of the individual themes was in the public interest.  
[330] The impugned publications were patently in the public interest. The ultimate  
question is whether the publications were responsible in all the circumstances. The  
focus of the inquiry is on the conduct of the Canwest defendants.  
[331] I have concluded that the Canwest defendants are entitled to succeed on the  
defence of responsible communication for the impugned statements in the Article  
and the July Article with one exception. I am not satisfied that the impugned  
statements in relation to the deathbed loan are protected by the defence. This was a  
 
Lougheed Estate v. Wilson  
Page 88  
distinct and separate subject in the story that was plainly untrue and was not  
investigated with sufficient diligence.  
[332] Given the red flags on the documentation that had been provided to  
Ms. O’Connor, and the extent of the questions raised by the Lougheeds with respect  
to this issue, I find that Ms. O'Connor was careless in her handling of this particular  
issue. She was required to apply a significant measure of rigour given the  
prominence of the allegation in the Article and its distinct defamatory sting.  
Ms. O’Connor’s confusion was reflected in her discussion with Mr. Wilson wherein  
she did not accurately or fairly describe the allegation and supporting document at  
issue. This is to be contrasted to the precision with which she put the debt  
allegations regarding the Properties to Mr. Wilson.  
[333] However, I accept that Ms. O’Connor acted in good faith and that she did not  
know that the deathbed allegations were false. I find that she did not have a reckless  
regard for the truth. The law draws a distinction between carelessness as to the  
truth, which does not amount to actual malice and “recklessness”, which does:  
Botiuk at para. 96. Balancing the evidence as a whole, I conclude that Ms. O’Connor  
was not motivated by actual malice.  
[334] In all the circumstances, I conclude that Ms. O'Connor and the Canwest  
defendants cannot rely on the defence of responsible communication for the  
publication of para. 94 of the Article.  
[335] With respect to the balance of the allegations, the defence of responsible  
communication eliminates the need for a separate inquiry into malice. The Supreme  
Court in Grant clearly stated that if the responsibility factors are met malice does not  
inform the analysis. For completeness, I add that the evidence does not support the  
suggestion of any improper purpose or motive, let alone one that was dominant.  
[336] Overall, I found Mr. Wilson’s submissions on the malice of the Canwest  
defendants unsubstantiated on the evidence and without merit. For completeness, I  
will, however, address two aspects of Mr. Wilson’s submissions on malice.  
Lougheed Estate v. Wilson  
Page 89  
[337] The authorities establish that malice must be assessed at the time of  
publication. While it is possible to draw an inference as to the state of mind of the  
defendant at the time of publication based on subsequent conduct, such an  
inference must be approached cautiously: Mann v. International Association of  
Machinists and Aerospace Workers, 2012 BCSC 181 at paras. 104 and 111.  
[338] Mr. Wilson alleges that the Canwest defendants were actuated by malice in  
not publishing the “Update and Correction” on the front page of the Province and  
instead “buried their update and correction away at page 14 of the paper on January  
17, 2011”. I do not see that way.  
[339] The Correction was placed at the top of page A 14 of the Sunday edition of  
the Province on January 23, 2011. It was posted the same day on the website with  
the correction and photograph of Mr. Wilson at the top of the Article and the  
corrections made in the body of the story. It has remained in that form for over five  
years. Currently, anyone searching the Article online would see the Correction at the  
very top of the Article.  
[340] I found Ms. O’Connor to be genuine when she stated in her testimony that it  
weighs upon her that there were inaccuracies in the publications. I accept her  
evidence that she was not informed about the inaccuracy of the deathbed loan until  
shortly before the Correction was published. She testified that, had Mr. Wilson  
communicated his issues with the story, the Canwest defendants would have  
corrected the inaccuracies much earlier than they did. I believe her.  
[341] Mr. Wilson also alleges that the Canwest defendants deliberately deleted  
emails and withheld documents in this litigation and that unnecessary motions  
regarding the “confidential source” were necessitated. The essence of Mr. Wilson’s  
allegation is that the Canwest defendants conducted the litigation to cause him  
maximum cost and delay and to frustrate his efforts to restore his reputation.  
[342] Our Court of Appeal’s decision on the confidential source, indexed at 2012  
BCCA 181, concluded that the Canwest defendants were entitled to maintain  
Lougheed Estate v. Wilson  
Page 90  
confidentiality over their confidential source. Any allegations imputing malice to the  
Canwest defendants on this basis is ill-conceived.  
[343] Mr. Wilson's lawsuit against the Canwest defendants was not filed until almost  
a full year after publication. In the interim, both before and after publication and in  
her usual course of document management, Ms. O'Connor conducted what she  
described as “routine cleanup” of her emails. Ms. O'Connor credibly testified that she  
was careful to retain documents going to the facts of the story and she candidly  
acknowledged that, although she anticipated litigation, she did delete what she  
perceived to be routine emails. After litigation was commenced, Ms. O'Connor  
provided her legal counsel with all documents (including emails) and audio tapes  
she had in her possession. She relied on her counsel to determine relevancy for the  
purposes of disclosure. I am satisfied that Ms. O'Connor did not deliberately destroy  
or withhold documents for any improper purpose or otherwise act with any malice.  
Moreover, on the totality of the evidence, I am not persuaded that I can reasonably  
and properly infer malice from counsel’s delay in producing the tape recordings and  
certain relevant emails.  
[344] In short, based on the evidence as a whole, I am not persuaded that the  
conduct of the Canwest defendants in the litigation demonstrates malice towards Mr.  
Wilson.  
Summary Re: Canwest Defendants’ Liability  
[345] In summary, I find that, except as it related to the deathbed loan,  
Ms. O’Connor and the Canwest defendants acted responsibly in publishing the  
Article and the July Article. Having regard to all of the circumstances, I find that  
Ms. O'Connor, who was responsible for the contents of each publication, was  
diligent in trying to verify the allegations concerning Mr. Wilson. I conclude therefore,  
with respect to the Article and in the July Article, with the exception of the deathbed  
loan referenced at para. 94 of the Article, the CanWest defendants are entitled to  
succeed on the defence of responsible communication.  
 
Lougheed Estate v. Wilson  
Page 91  
[346] Mr. Wilson has established that the impugned statements in relation to the  
deathbed loan were defamatory and without any factual foundation. I have  
concluded that the Canwest defendants cannot rely on the defence of responsible  
communication nor justification. The defence of fair comment has no application.  
Having established a claim in defamation Mr. Wilson is entitled to damages from the  
Canwest defendants. I will address the appropriate quantum of those damages later  
in these Reasons.  
[347] In light of my conclusions that the Canwest defendants are entitled to  
succeed on the defence of responsible communication for the balance of the  
impugned statements, I will not address the Canwest defendants’ alternative  
defences of fair comment or justification.  
Janke  
Facts  
[348] Earlier in these Reasons, at paras. 109-118, I set out the circumstances  
surrounding Mr. Janke’s publication. In the next section I will address the steps Mr.  
Janke took to verify the allegations in the Anonymous Letter prior to posting it on his  
website.  
[349] Mr. Janke’s testimony was straightforward, unadorned, and without any  
exaggeration or embellishment. I found him to be a credible witness and his  
evidence reliable.  
[350] Mr. Janke testified that, after reading through the materials in the Anonymous  
Letter several times, he went to Elections Canada’s website to look at Mr. Wilson’s  
electoral campaign return for the January 2006 federal election. He understood the  
document to be a sworn declaration by the candidate and the official agent, both of  
whom had responsibilities under the Canada Elections Act to be truthful and  
accurate in providing the financial information.  
[351] Mr. Janke testified about the observations he made with respect to each of  
the allegations in the Anonymous Letter as he undertook a process of cross-  
   
Lougheed Estate v. Wilson  
Page 92  
checking. With respect to the Cowie Street office, for instance, the thrust of the  
allegation was that Norma had made payments to the landlord, Mr. Fawkes, which  
did not appear on Mr. Wilson’s campaign return. Mr. Janke said that he looked at the  
campaign return and did not see Mr. Fawkes listed as a supplier, nor did he see  
Ms. Lougheed as having made a loan or donation to the campaign.  
[352] Mr. Janke gave similar evidence with respect to the other seven allegations in  
the Anonymous Letter. He repeated the same process to see whether he could find  
the individual or company referred to in any context – whether as an expense, loan  
or donation – on the campaign return but was unable to in most instances. In the  
case of Canada Post and the Coast Reporter, the returns did record them as  
suppliers but the expenses declared did not appear to reflect the true value of the  
services alleged to have been received.  
[353] Mr. Janke concluded at the end of this process that the allegations in the  
Anonymous Letter were not inconsistent with the sworn information filed with  
Elections Canada as presented on their website. He therefore considered the  
allegations noteworthy. As Mr. Janke explained (in his examination for discovery):  
I did the best I could to validate the material against every public record I  
could find including what was in Elections Canada’s website for returns.  
There was nothing in the material that was inconsistent with what was in the  
returns for the election and everything was consistent with everything that  
was publicly described in, you know, media reports and so on about what the  
material was, and that had not yet been denied or had not been denied by  
any of the parties as being untrue.  
[354] In addition to Elections Canada’s website, Mr. Janke said that he would have  
also attempted to search for any additional material online, such as news articles or  
other published materials, though he does not recall finding further information in this  
way.  
[355] Mr. Janke did not take any further steps to verify the allegations in the  
Anonymous Letter. He did not inquire into whether the official agent or returning  
officer had copies of the documentation supporting the campaign return, nor did he  
look at the Canada Elections Act to see what records were publicly available. He  
Lougheed Estate v. Wilson  
Page 93  
also made no efforts to contact any of the individuals whose email addresses were  
included in the materials enclosed with the Anonymous Letter. Mr. Janke did not  
endeavour to contact Mr. Wilson. He testified that he knew from the media articles  
that Mr. Wilson had, either directly or through his spokesperson, provided blanket  
denials of any wrongdoing and had promised to assist in any Elections Canada  
investigation. Mr. Janke said he took the quotes at face value as being Mr. Wilson’s  
position and assumed it unlikely that further details would be forthcoming. Mr. Janke  
also did not forward a copy of the Anonymous Letter to either Mr. Wilson or  
Mr. Holley.  
[356] Mr. Janke’s explanation for not taking these further steps is that he was not  
investigating the substance of the allegations; that was a task for Elections Canada.  
Rather, he was simply confirming that the allegations, which had already been  
discussed in the media and had resulted in Mr. Wilson’s departure from caucus,  
were consistent with the sworn information published by Elections Canada. As he  
testified:  
I wasn’t attempting to determine whether or not there was – what people had  
done or motivations or anything like that. I was saying, here’s Elections  
Canada’s sworn returns, I have a letter here that says that these things aren’t  
appearing, there’s a whole bunch of data, I go to the returns, and he’s right,  
they’re not appearing. So that’s – that’s what I was – that was the scope of  
what I was attempting to do.  
[357] Mr. Janke testified to a second reason he did not take further steps:  
Besides that, as a blogger, I live on the internet. The internet is where all our  
information is that we get. Of course there are sources of information on the  
internet that are less than reputable, but something like the Globe and Mail,  
something like Elections Canada, those would be considered legitimate  
sources of information. I trusted them.  
[358] On the evening of November 3, 2007, Mr. Janke published the Anonymous  
Letter and enclosures on his blog. He also included commentary, some to provide  
context to the material, other in the nature of opinion. This was the first time that  
Mr. Janke had posted anonymous information on his blog. He acknowledged in his  
evidence that there were risks in dealing with anonymous sources since a person  
hiding behind anonymity has fewer constraints on their actions.  
Lougheed Estate v. Wilson  
Page 94  
[359] Mr. Janke testified that he published the Anonymous Letter in its entirety  
rather than summarizing or quoting from it because, as a blogger, he had “the luxury  
of space” and therefore did not need to condense its content. Moreover, the  
protocols of blogging favour presenting all available information so that readers are  
able to view the unmediated information and form their own conclusions.  
[360] The publication was effected through a series of ten blog posts. The posts  
were published in order over a number of hours on November 3 and 4, 2007, and  
corresponded to the eight allegations with an introductory and concluding post. They  
were titled as follows:  
1.  
2.  
3.  
4.  
5.  
6.  
7.  
8.  
9.  
10.  
The Case Against Blair Wilson - The Charges;  
The Cowrie Street Office;  
The Marine Drive Office;  
Printing;  
Canada Post;  
The Umbrellas;  
The Coast Reporter;  
The Whistler Question;  
Jamey Kramer;  
Conclusion.  
[361] The first post began:  
We have all read the news reports about charges facing MP Blair Wilson,  
elected as a Liberal but now sitting as an independent. Blair Wilson is  
charged with serious breaches of the Elections Act. In order to help  
Canadians come to their own conclusions, I’ll be posting the original  
complaint as it was delivered to Elections Canada, in its entirety, in this series  
of posts.  
Lougheed Estate v. Wilson  
Page 95  
[362] The post permitted readers, via hyperlink, to “review the complaint against  
Blair Wilson as delivered to Elections Canada on October 24, 2007.” It then  
continued:  
There are eight distinct charges laid -- two regarding offices rented for the  
purposes of running an election campaign, one regarding how charges for  
printing business cards and brochures were handled, one about charges to  
be paid to Canada Post for a mass mailing, one about the cost of umbrellas  
purchased as promotional items, and three regarding charges for newspaper  
ads.  
In each of these cases, the argument is made that the expenses incurred for  
these items or services were not properly accounted for to Elections Canada.  
It matters because there are limits to spending in an election, and when  
expenses are unaccounted for, it is impossible to tell if the limits were  
exceeded.  
The complaint concludes with this point:  
The election result was very close and had Mr. Wilson actually only  
spent what he was allowed to he may well have lost. In the interest of  
a fair and accountable democratic election process Mr. Wilson’s  
campaign must be investigated.  
Perhaps it is to aid the investigation that the complainants included an extra  
sheet that informs the reader that the man who ran Blair Wilson’s election  
effort, Guillio Vilas, works in the Ottawa in Blair Wilson’s House of Commons  
Office.  
One more thing of note. The complaint does not request that Elections  
Canada just investigate these eight specific allegations. Instead, the  
complaint says that these eight alleged violations establish a “pattern of  
deception”, and that Elections Canada must expand the investigation beyond  
these eight specifics (assuming the violations are established to have  
happened) to investigate the entire campaign.  
[363] The post described the contents of the Anonymous Letter as “charges”.  
Mr. Janke explained that he used this word simply because the author of the  
Anonymous Letter had used it. He did not mean a charge in the legal sense, just that  
someone had made an allegation.  
[364] The second post concerned the allegation about the Cowie Street Office. The  
post began, “The first charge against former Liberal MP Blair Wilson under  
investigation by Elections Canada focuses on the Cowrie Street Office”. It then  
quoted the allegation from the Anonymous Letter, and continued as follows:  
Lougheed Estate v. Wilson  
Page 96  
You can study the supporting material related to the Cowrie Street office  
charge against Blair Wilson [hyperlinked] for yourself.  
Check the email that is dated August 31, 2006. In it, the person alleges that  
the returns filed by Blair Wilson did not account for the Cowrie Street office.  
That was nearly two months before the formal complaint to Elections Canada  
was filed.  
I wonder if in those two months anyone took their concerns about Blair  
Wilson’s accounting to the Liberal Party first.  
Later there is the letter dated November 25, 2005. In it, Gord Holley and  
Doug Hammond are appraised of the Cowrie Street leasing arrangements,  
included the amounts.  
Gord Holley is Blair Wilson’s official agent. Gord Holley has said that he was  
unware of any accounting problems in Blair Wilson’s campaign [hyperlinked]:  
Wilson’s official agent, Gordon Holley, said he wasn’t aware of cash  
payments or unsubmitted receipts. “I continue to not be aware of any  
improprieties with respect to the campaign finances,” he said.  
But Gord Holley knew the Cowrie Street office was being leased from Michael  
Hawkes, being told on November 25, 2005. Did he not notice the  
conspicuous absence of the Cowrie Street office, Michael Hawkes, and the  
rental amounts in the final return?  
Doug Hammond is the president for the Liberal Party riding association. He  
was made aware of the Cowrie Street office lease at the same time Gord  
Holley was. Thought it doesn’t seem obvious that the riding president would  
check Blair Wilson’s documentation for accuracy before submission to  
Elections Canada, he needs to be concerned. If nothing else, he’ll be  
wondering why this obvious expense was allegedly missed and no one  
caught it.  
[365] The posts with respect to the seven other allegations were of a similar flavour.  
[366] Mr. Janke’s concluding post read as follows:  
Over the last nine posts, I’ve presented the entire package of evidence  
presented to Elections Canada that purports to prove that Blair Wilson  
engaged in a pattern of deception in order to evade campaign spending  
limits. The former Liberal MP, now sitting as an independent, is under  
investigation by both Elections Canada and the Liberal Party. The only  
conclusion that matters is the one that Elections Canada comes to, but we  
can look at the material and make some observations of our own.  
The material in the package is quite damning. Assuming this is not an  
elaborate attempt to frame Blair Wilson, the existence of emails in which Blair  
Wilson and other senior campaign officials discuss (or at least have  
knowledge of) certain spending decisions will make it difficult for anyone to  
plead ignorance as a defense.  
Lougheed Estate v. Wilson  
Page 97  
Indeed, it is hard to see how all eight charges can be turned aside. Not all are  
equally serious (the Jamey Kramer charge seems small potatoes in  
comparison with the others) but together they might suggest a pattern that  
could prompt an in-depth investigation.  
The Liberals, no doubt, are not interested in that happening. Besides the bad  
press, the involvement of the “Big Guy” who did not want Blair Wilson running  
his campaign, or to even think he was, might cause lines to be drawn from  
the Blair Wilson campaign office back to the Liberal Party headquarters. No  
doubt part of the Liberal party investigation is to determine the scope of  
exposure, and to fashion a strategy to keep the focus on Blair Wilson and his  
immediate campaign team as the source of any problems that might be  
uncovered.  
But now that you’ve seen the material yourself, you can decide whether  
whatever conclusion Elections Canada comes to is a reasonable one.  
[367] Mr. Janke testified that he based his opinion that the material was “damning”  
on the fact that he was unable to match up the expenses referred to in the  
Anonymous Letter with the information on Mr. Wilson’s campaign return. This  
suggested to him that there was substance to the allegation that the accounting  
submitted to Elections Canada was deficient or improper.  
[368] Mr. Janke stated several reasons for believing that the Anonymous Letter and  
supporting materials had been received by Elections Canada at the time he posted  
them on his blog. First, and most significantly, there had already been statements in  
the press about Elections Canada having the material. Second, the letter was  
addressed to the Commissioner of Elections Canada and he had no reason to  
believe it had not been delivered to him. Finally, Mr. Wilson’s ouster from the Liberal  
Party caucus suggested that the consequences of the allegations had played out.  
[369] When asked what his purpose was in publishing the Anonymous Letter and  
his commentary, Mr. Janke responded:  
I said I think more than once that this was something for the readership as a  
whole, and Canadians, I suppose, to cast some light over what was  
happening.  
Here there are – some allegations have been made some are serious. There  
is a bunch of evidence and there’s a – a – material in Elections Canada that,  
you know, establishes how the – the accounting happened.  
This was an exercise for myself and for our readers to decide whether or not  
– well, some of it was educational, just to – I think I said at some point just to  
Lougheed Estate v. Wilson  
Page 98  
get a sense of what we have to – what Elections Canada has to deal with,  
how difficult this can be, but also just to foster the discussion of a – of a  
newsworthy story that was already out in the press.  
[370] As for whether he believed the allegations in the letter to be true at the time of  
he published them, Mr. Janke testified, “I only believed that I couldn’t resolve the  
questions that were raised. In other words – at the end of that exercise to me the  
questions stood.” Not having a conclusion, he added, was not the same as being  
indifferent to whether the allegations were true. He continued:  
The allegations are about the transparency of electoral process. Elections  
Canada spent presumably quite a bit of money setting up a website for  
Canadians to be able to keep an eye of what their candidates are doing  
financially.  
They get reimbursed with tax money, which is my money, so yes, I’m – I’m  
not indifferent to the notion of monies being spent improperly. If there is a  
question of that it should – that question should be answered.  
[371] Mr. Janke did not publish anything about Mr. Wilson’s family debt allegations  
believing them to a private matter.  
[372] Mr. Janke testified that his blog posts about Mr. Wilson did not generate much  
interest and were a “bit of a wet firecracker in terms of traffic”.  
[373] Mr. Janke’s blog permitted people to comment on stories he posted. To his  
knowledge, neither Mr. Wilson nor anyone on his behalf commented on his posts.  
[374] Mr. Janke ceased blogging two or three years ago. He had other demands on  
his time and he found blogging to be less enjoyable than it used to be. He also  
acknowledged that the action against him “probably had a bit to do with that as well”.  
Claims against Mr. Janke  
[375] Mr. Wilson’s Counterclaim is difficult to interpret with respect to the specifics  
of his claim against Mr. Janke.  
[376] The first mention of the Anonymous Letter is at para. 28:  
28.  
The Defendant Tyabji together with Art Alexander and other unknown  
person(s) prepared a report dated October 24, 2007, purporting to be a letter  
 
Lougheed Estate v. Wilson  
Page 99  
addressed to the Commissioner of the Canada Elections Act (“the October  
24, 2007 Anonymous Report”) and forwarded the October 24, 2007  
Anonymous Report to the Defendants O’Connor, Canwest, Marissen and  
Steve Janke with the intention that they would republish the report and its  
contents.  
[377] It is in this paragraph that the Anonymous Letter, referred to as the  
Anonymous Report, is defined.  
[378] The pleading returns to Mr. Janke at para. 47:  
47.  
On or about November 3, 2007, the Defendant Steve Janke  
republished on his blog “Angry in the Great White North” the allegations  
contained in paragraph 23 of this Counter Claim about the Defendant Blair  
Wilson in the Defendant Tyabji’s letter to Elections Canada Commissioner,  
William Corbett of October 24, 2007, including but not limited to:  
(a)  
that he had deliberately misled Elections Canada on his  
Statement of Electoral Campaign Expenses;  
(b) the materials contained a prima facie case of intentionally  
misleading Elections Canada;  
(c) there was non-reporting of certain significant election  
expenses and donations; and,  
(d) that there were eight separate charges, which taken together  
showed a systemic pattern of deception.  
ANONYMOUS LETTER ON INTERNET  
48.  
On November 4, 2007 the Defendant Janke posted the following  
materials to his website:  
49.  
The October 24, 2007 Anonymous Report authored by the Defendant  
Tyabji together with Art Alexander and other unknown person(s)  
subsequently republished this material that contained numerous allegations  
against the Defendant Blair Wilson, including but not limited to:  
(a)  
(b)  
(c)  
(d)  
that he had deliberately misled Elections Canada on his  
Statement of Electoral Campaign Expenses;  
the materials contained a prima facie case of intentionally  
misleading Elections Canada;  
there was non-reporting of certain significant election  
expenses and donations; and,  
that there were eight separate charges, which taken together  
showed a systemic pattern of deception.  
50.  
The October 24, 2007 Anonymous Report also contained the  
following:  
(a)  
Mr. Blair Wilson ... willfully misled Elections Canada on his  
statement of Electoral Campaign Expenses.  
Lougheed Estate v. Wilson  
Page 100  
(b)  
(c)  
They comprise a prima facie case of intentionally misleading of  
Elections Canada and the non-reporting of certain significant  
expenses and donations.  
There are eight separate charges, each of which individually  
are in direction contravention of the act, but taken together  
show asystemic pattern of deception. The existence of this  
pattern requires that an immediate investigation be undertaken  
into everything reported in Mr. Wilson’s filing:  
1.  
Cowrie Street Office -- Mr. Wilson established a campaign office at  
5666 Cowie Street, Sechelt, B.C. which he took possession of on  
December 1, 2005. …  
[379] Paragraph 50 goes on to reproduce the balance of the Anonymous Letter and  
then moves straight into Mr. Janke’s concluding post on his blog:  
…
These are the only charges for which we could assemble clear proof. A  
thorough investigation may well find evidence of many other breaches of the  
act. Mr. Wilson must be held accountable for his actions. He deliberately  
misreported and hid expenses from Elections Canada. The election result  
was very close and had Mr. Wilson actually only spent what he was allowed  
to he may well have lost. In the interest of a fair and accountable democratic  
election process Mr. Wilson’s campaign must be investigated.  
The Case against Blair Wilson -- Conclusion  
Over the last nine posts, I’ve presented the entire package of evidence  
presented to Elections Canada that purports to prove that Blair Wilson  
engaged in a pattern of deception in order to evade campaign spending  
limits. …  
The whole of Mr. Janke’s concluding post is reproduced in the pleading.  
[380] Those are the only references to Mr. Janke before the legal basis of the claim  
against him is set out at para. 6 under the heading “Part 3: Legal Basis”:  
6.  
In their natural and ordinary meanings of the words published in the  
October 24, 2007 Anonymous Report, and materials republished by  
the Defendants, O’Connor, Canwest, Marissen and Janke, were  
meant and understood to mean that the Defendant Blair Wilson was  
untruthful, intended to deceive, and committed civil and/or criminal  
wrongdoings, and was guilty of civil criminal and/or civil misconduct,  
was untrustworthy, and was dishonest as a candidate in the 2006  
Federal Election in his completion of his return to Elections Canada.  
Lougheed Estate v. Wilson  
Page 101  
[381] These words, it is alleged, caused pain and suffering. Malice is then alleged  
against Mr. Janke, as is joint and several liability.  
[382] As I interpret para. 6 of the Counterclaim (reproduced two paragraphs above),  
it is the Anonymous Report, as defined in para. 28 of the Counterclaim, that  
Mr. Janke republished, that is the basis of Mr. Wilson’s defamation claim against  
him. Although the pleading does reproduce Mr. Janke’s concluding post from his  
blog, it does not refer to it again nor specify those portions alleged to be defamatory.  
The use of the word “republish” in para. 6, together with the inclusion of the Canwest  
defendants, is also consistent with the claim being with respect to the Anonymous  
Letter only; Mr. Janke’s commentary in the concluding post was published, not  
republished, and did not concern the Canwest defendants.  
[383] Accordingly, I will assess the defamation claim against Mr. Janke only with  
respect to the publication of the Anonymous Letter on his blog and the specific  
statements therein that Mr. Wilson has specifically alleged are defamatory. Of  
course, the concluding post provides relevant context to the publication of the  
Anonymous Letter, and to that extent I will take it into account in my analysis.  
Were words complained of defamatory  
[384] There is no dispute that the Anonymous Letter referred to Mr. Wilson and that  
it was published by Mr. Janke. The only question is whether it was defamatory.  
[385] Mr. Wilson’s pleading focuses on several statements in the letter that I would  
synthesize as follows:  
a)  
Mr. Wilson deliberately misled Elections Canada by intentionally failing  
to report significant election expenses and donations on his Statement  
of Electoral Campaign Expenses in relation to the 2006 federal  
election;  
 
Lougheed Estate v. Wilson  
Page 102  
b)  
the eight allegations, each of which was contrary to the Canada  
Elections Act, collectively demonstrated a systemic pattern of  
deception; and  
c)  
this pattern of deception necessitated an immediate investigation by  
Elections Canada into the whole of Mr. Wilson’s campaign expense  
filing.  
[386] Mr. Wilson alleges that the natural and ordinary meaning of the words in the  
Anonymous letter were meant, and were understood to mean, that he was  
“untruthful, intended to deceive, and committed civil and/or criminal wrongdoings,  
and was guilty of civil criminal and/or civil misconduct, was untrustworthy, and was  
dishonest as a candidate in the 2006 federal election in his completion of his returns  
to Elections Canada”.  
[387] While I do not believe that a reasonable person would understand the  
impugned statements to be alleging criminal misconduct on the part of Mr. Wilson,  
their clear meaning was that Mr. Wilson had willfully misled Elections Canada on his  
statement of electoral campaign expenses by intentionally failing to report numerous  
expenses and donations. The obvious implication was that Mr. Wilson had been  
dishonest as a candidate during the 2006 federal election. As I mentioned earlier,  
this was a serious allegation to level against an elected official who had sought, and  
received, the public trust during that election. There is no question that the impugned  
statements would tend to lower Mr. Wilson’s reputation in the eyes of a reasonable  
person.  
[388] Mr. Janke denies that the words complained of are defamatory when  
considered in context. He aligns himself with the minority view of LeBel J. in WIC  
Radio SCC at paras. 68-69, with respect to the assessment of whether a statement  
is defamatory:  
[68] This test is often construed as setting a low threshold for establishing  
prima facie defamation. Gatley on Libel and Slander (10th ed. 2004)  
(“Gatley”), notes that “it may well be the case that the common law takes a  
rather generous line on what lowers a person in the estimation of others” (p.  
Lougheed Estate v. Wilson  
Page 103  
18, footnote 32). Dickson J. made a similar point in Cherneskey v. Armadale  
Publishers Ltd., [1979] 1 S.C.R. 1067, in referring to the “low level of the  
threshold which a statement must pass in order to be defamatory” (p. 1095).  
[69] The case law generally bears these opinions out. However, courts should  
not be too quick to find defamatory meaning — particularly where  
expressions of opinion are concerned. The test is not whether the words  
impute negative qualities to the plaintiff, but whether, in the factual  
circumstances of the case, the public would think less of the plaintiff as a  
result of the comment. Relevant factors to be considered in assessing  
whether a statement is defamatory include: whether the impugned speech is  
a statement of opinion rather than of fact; how much is publicly known about  
the plaintiff; the nature of the audience; and the context of the comment.  
[389] He cites, as well, Taseko Mines Limited v. Western Canada Wilderness  
Committee, 2016 BCSC 109 at paras. 115-118.  
[390] Mr. Janke says that by the time of his publication, his readers – an engaged  
political audience interested in partisan politics and matters of elections financing –  
would have already been aware of the allegations of electoral impropriety that had  
been raised in the media; specifically, that an official complaint had been made to  
Elections Canada and that a number of Mr. Wilson’s campaign expenses did not  
match his publicly filed campaign return. The only new information was the  
allegations relating to Canada Post, the Coast Reporter and Whistler Question, and  
Jamey Kramer. Thus, there was no additional sting arising from his publication and  
nothing that would have led right-thinking members of the public to think less of  
Mr. Wilson.  
[391] While I accept that a contextual approach to defamatory meaning is  
appropriate, I am not persuaded by Mr. Janke’s submission.  
[392] First, it is no answer to say that publishing the Anonymous Letter posed no  
threat to Mr. Wilson’s reputation because a substantial amount of the information it  
contained had already been reported. As noted in Brown on Defamation, 2nd ed., at  
para. 5.4, the fact that the words about which the plaintiff complains have previously  
been circulated by others does not make them any less defamatory.  
Lougheed Estate v. Wilson  
Page 104  
[393] As for the implicit suggestion that the format of the publication (a blog) and  
nature of Mr. Janke’s audience prompted a degree of filtering on the part of his  
readers such that the publication would not tend to lower the reputation of  
Mr. Wilson, I refer to the comments of Madam Justice Polowin in Baglow v. Smith,  
2015 ONSC 1175. In response to the submission that the nature of political  
discourse on online message boards and blogs was important context in determining  
whether a statement was defamatory, she said, in part, the following (at paras. 206-  
207):  
[206] I am very mindful that political discourse on weblogs and message  
boards, particularly those which are hyper-partisan, is qualitatively different  
than political discourse in more “traditional” media like newspapers and  
television. This is well illustrated when one compares the blog post that Dr.  
Baglow wrote concerning the Honourable Mr. Justice Victor Toews (who was  
then the Federal Minister of Public Safety) to the “Full Comment” piece that  
he wrote on Justice Toews in the National Post. In the blog post, Dr. Baglow  
stated that “Toews distinguished himself with petty acts of cruelty and an ill-  
concealed liking for torture” and is a “seasoned bigot and devotee of sudo-  
politics at its least refined”.  
[207] I am also mindful that this Court must consider the context in which  
the words were used and the audience to whom they were published.  
However, it seems to me that taking the submissions of the CCLA and the  
defendants to their logical conclusion, little, if anything, could be found to be  
defamatory on partisan weblogs and message boards. Implicit in their  
submissions is that based on the rough and tumble nature of these media  
platforms there would be little, if anything, that would tend to lower the  
plaintiff’s reputation in the eyes of a reasonable reader. However, there is  
nothing in the law of defamation to suggest that that is the case.  
[394] I agree with these comments.  
[395] Accordingly, I find that the words complained of were plainly defamatory as  
they would tend to lower Mr. Wilson’s reputation in the eyes of a reasonable person.  
[396] Mr. Janke raises a number of defences, specifically justification, qualified  
privilege, responsible communication and fair comment.  
[397] I will turn first to qualified privilege.  
Lougheed Estate v. Wilson  
Qualified Privilege  
Page 105  
[398] Mr. Janke submits that his communications are protected by qualified  
privilege. He says that he had a social duty to publish the impugned statements and  
that the readers of his blog, as informed participants in Canadian democracy, had a  
corresponding duty or interest to receive them.  
[399] I am not satisfied that Mr. Janke has proved that he had a special relationship  
with his readers such that he had a social duty to publish the Anonymous Letter and  
his commentary, nor that the readers of his blog had a reciprocal interest in receiving  
the information. I therefore conclude that the defence of qualified privilege is not  
available to Mr. Janke.  
Responsible Communication  
[400] Mr. Janke relies primarily on the reportage aspect of the responsible  
communication defence, submitting that he was reporting an ongoing dispute  
between Mr. Wilson, the anonymous author(s) of the letter to Elections Canada and  
the Liberal Party of Canada. He also relies on responsible communication more  
generally.  
[401] Mr. Janke submits that he was diligent in his attempts to ascertain the  
veracity of the allegations in the Anonymous Letter by reviewing Mr. Wilson’s  
campaign return on Elections Canada’s website. He says that Mr. Wilson had a  
statutory duty under the Canada Elections Act to accurately report all required  
information to Elections Canada and that, accordingly, he was entitled to rely on the  
information in the campaign return as accurate and true. The manner in which  
Mr. Wilson declared his expenses was contrary to the Canada Elections Act and  
effectively prevented an assessment of whether Mr. Wilson’s campaign expenses  
were properly incurred.  
[402] I turn first to Mr. Janke’s claim of reportage.  
[403] I have already discussed how a complaint to Elections Canada about a sitting  
Member of Parliament was a matter of legitimate public interest, as the Canadian  
   
Lougheed Estate v. Wilson  
Page 106  
public had a clear interest in knowing there were allegations of campaign finance  
irregularities against an individual entrusted with public finances.  
[404] Although Grant indicates it is preferable that the statements be attributed, it  
does not foreclose the possibility that a defendant can avail himself of the defence if  
his source is anonymous. In the circumstances here, I do not consider the anonymity  
of the allegations to be fatal.  
[405] Mr. Janke posted the Anonymous Letter and supporting materials on his blog  
so the allegations against Mr. Wilson were accurately published. However, reading  
the entirety of the publication, that is, the foregoing materials together with  
Mr. Janke’s ten posts, it is difficult to conclude that both sides of the dispute were  
fairly set out. The closest Mr. Janke came to reporting Mr. Wilson’s side was in his  
post with respect to the Cowie Street Office where he wrote:  
Gord Holley is Blair Wilson’s official agent. Gord Holley has said that he was  
unaware of any accounting problems in Blair Wilson’s campaign:  
Wilson’s official agent, Gordon Holley, said he wasn’t aware of cash  
payments or unsubmitted receipts. “I continue to not be aware of any  
improprieties with respect to the campaign finances,” he said.  
[406] In a more neutral publication that might have been sufficient. However, it was  
not sufficient in this case. I find the overall implication of Mr. Janke’s commentary  
was that the allegations were likely true. By way of example, the passage  
immediately following the above quote from the Cowie Street Office post was:  
But Gord Holley knew the Cowrie Street office was being leased from Michael  
Hawkes, being told on November 25, 2005. Did he not notice the  
conspicuous absence of the Cowie Street office, Michael Hawkes, and the  
rental amounts from the final return?  
[407] In his post about the Marine Drive Office, Mr. Janke wrote:  
What I find interesting in the material here is that Blair Wilson is directly  
involved, and not just agents. The representative from Colliers International is  
emailing Blair Wilson directly with the rent offer, with how it compares to fair  
market value, and with instructions on payment and taking possession.  
That is going to make it unlikely that Blair Wilson would succeed in presenting  
a defence based on campaign workers making mistakes or taking decisions  
without informing him.  
Lougheed Estate v. Wilson  
Page 107  
[408] There is also, of course, Mr. Janke’s comment in his concluding post that the  
materials in the package were “quite damning”.  
[409] Mr. Janke was explicit throughout his posts that the Anonymous Letter and  
materials only “purported to prove” or “alleged to show” that Mr. Wilson had failed to  
account for campaign expenses. He used language such as “assuming the  
violations are established to have happened” and “assuming this is not an elaborate  
attempt to frame Blair Wilson”. He also acknowledged that “the only conclusion that  
matters is the one that Elections Canada comes to”. Nevertheless, the overall sense  
one has from reading the publication is that Mr. Janke subscribed to the belief that  
the allegations were true. While I do not find that Mr. Janke adopted the allegations,  
he failed to set out both sides of the dispute fairly.  
[410] Accordingly, I conclude that Mr. Janke’s publication is not reportage.  
However, it remains to be considered whether it is protected as responsible  
communication more broadly. The crucial question is whether Mr. Janke was diligent  
in trying to verify the allegations in the Anonymous Letter, having regard to all the  
relevant circumstances, before posting the letter on his blog.  
[411] Although the Court in Grant recognized the emergence of new disseminators  
of news and information, it defined the responsible communication defence in  
accordance with the standards of traditional journalism. The factors it identified as  
relevant to whether the publisher was appropriately diligent appear mainly drawn  
from professional journalism; for example, whether the plaintiff’s side of the story  
was sought and accurately reported, and the urgency of the publication. However,  
that begs the question whether it is reasonable to require bloggers to maintain the  
standards of professional journalists in order for their communications to be  
considered responsible.  
[412] The Court in Grant was explicit that established journalistic standards would  
provide a useful guide in evaluating the conduct of non-journalists, though in the  
same breath acknowledged the need for those standards to evolve with new forms  
of communications media:  
Lougheed Estate v. Wilson  
Page 108  
[97] A review of recent defamation case law suggests that many actions now  
concern blog postings and other online media which are potentially both more  
ephemeral and more ubiquitous than traditional print media. While  
established journalistic standards provide a useful guide by which to evaluate  
the conduct of journalists and non-journalists alike, the applicable standards  
will necessarily evolve to keep pace with the norms of new communications  
media.  
[413] Mr. Janke argues that a different standard of responsibility ought to apply in  
assessing what is responsible for a traditional media outlet with paid staff and a  
large circulation on the one hand, and an individual blogger with a modest  
readership on the other. He says that there are differences not only in resources and  
scope of distribution but also in the manner in which the publications are received.  
While the public considers a mainstream newspaper to be well-researched and  
authoritative, it also understands that a blogger is simply an individual expressing his  
or her own views. In this regard, he cites LeBel J.’s minority reasons in WIC Radio  
SCC, where he said the following in assessing whether a statement is defamatory:  
[73] This is all the more true in an age when the public is exposed to an  
astounding quantity and variety of commentaries on issues of public interest,  
ranging from political debate in the House of Commons, to newspaper  
editorials, to comedians’ satire, to a high school student’s blog. It would quite  
simply be wrong to assume that the public always takes statements of  
opinion at face value. Rather, members of the public must be presumed to  
evaluate comments in accordance with their knowledge and opinions about  
the speaker and the subject of the comments.  
[414] No expert evidence was led with respect to the different norms of journalism  
and blogging. Nevertheless, some are apparent at least insofar as Mr. Janke’s blog  
is concerned. Unlike journalists who are generally expected to maintain a degree of  
neutrality or objectivity in their reporting, there was no such pretence with  
Mr. Janke’s blog. He approached news and politics from an unabashedly  
conservative point of view; the subtitle to his blog – “a heat-seeking missile in the  
Conservative arsenal” – left little room for doubt. Also, unlike professional journalists  
who generally make a point of gathering information from the various parties in a  
story, Mr. Janke, for whom blogging was a hobby, derived the information for his  
blog from online sources, typically from news reports. He testified that as a blogger,  
Lougheed Estate v. Wilson  
Page 109  
he lived on the internet and that the internet was the source of information for  
bloggers.  
[415] There are, as of yet, few cases in which the responsible communication  
defence has been considered in the context of a blogger. One of which I am aware  
is Vigna v. Levant, 2010 ONSC 6308. The defendant was Ezra Levant, who  
identified as a lawyer, journalist, political commentator and activist. He posted  
defamatory statements on his blog regarding commission counsel in a human rights  
proceeding against him, including the claims that counsel had lied to the  
commission, failed to honour his undertaking to the commission and had acted  
unethically by switching a key piece of evidence. One of the defences he relied on  
was responsible communication. The court applied the factors identified in Grant and  
concluded that Mr. Levant had not made diligent efforts to verify the truth of the  
allegations. The court found at para. 83, for instance, that Mr. Levant had not  
contacted the plaintiff for his side of the story: “He did not want to check the facts as  
a responsible journalist would have done because this would interfere with his  
opportunity to ridicule the Human Rights Commission”. There was no suggestion in  
the court’s analysis that a relaxed standard of responsibility should be applied to  
statements posted on a blog.  
[416] The factors that the Supreme Court enumerated in Grant are neither a  
checklist nor of equal value in a given case. In my view, the Court’s statement, at  
para. 122, that “ultimately, all matters relevant to whether the defendant  
communicated responsibly can be considered” permits considerable flexibility in the  
analysis.  
[417] Mr. Janke operated a partisan political blog. His primary purpose in publishing  
the Anonymous Letter was to foster discussion of a newsworthy story that had  
already been covered by the press. He posted the whole of the letter because, as he  
testified, the protocols of blogging favour presenting all available information so that  
readers are able to view the unmediated information and form their own conclusions.  
There is no question that the allegations of campaign spending infractions by  
Lougheed Estate v. Wilson  
Page 110  
Mr. Wilson, a sitting Member of Parliament, were serious and thus required an  
elevated level of diligence in their verification.  
[418] Although Mr. Janke did not know the source of the Anonymous Letter, he did  
have the supporting materials that were enclosed with it and on which the  
allegations were based. Importantly, he made efforts to verify their accuracy by  
consulting Mr. Wilson’s campaign return on the Elections Canada website. Based on  
his review, he concluded the allegations were not inconsistent with the sworn  
information. It was therefore not the case that Mr. Janke published wholly  
unsupported and unverified anonymous allegations.  
[419] As I mentioned earlier, some of the inconsistencies identified in the  
Anonymous Letter and verified by Mr. Janke, were the result of Mr. Wilson’s  
payment (and reimbursement) of campaign expenses in a manner not contemplated  
by the Canada Elections Act, as opposed to unreported items as alleged.  
Mr. Wilson’s campaign return listed him as the supplier in relation to 98 campaign  
expenses, indicating he had been reimbursed for them from the campaign bank  
account. As the evidence at trial disclosed, some were for expenses the Anonymous  
Letter alleged had not been reported; for instance, the rent for the two campaign  
offices and some of the advertising expenses with respect to the Coast Reporter and  
Whistler Question. However, the payments were not transparent since they were  
reported on the return as payments to Mr. Wilson as a supplier.  
[420] Mr. Wilson maintains that had Mr. Janke inspected the publicly available  
return and supporting documents, he would have understood the true state of affairs  
and realized that numerous of the allegations were unfounded. However, Mr. Janke  
responds that he was entitled to rely on the accuracy of the campaign return sworn  
by the candidate and official agent to be complete and accurate. In his written  
submissions he characterizes the return as “a solemnly affirmed comment”, which  
he suggests obviated the need for him to seek verbal comment from Mr. Wilson  
before publishing the Anonymous Letter. He adds that he knew from media articles  
concerning the matter that Mr. Wilson, either directly or through his spokesperson,  
Lougheed Estate v. Wilson  
Page 111  
had issued blanket denials of wrongdoing. Mr. Janke took the quotes as being  
Mr. Wilson’s position and assumed it unlikely that further details from would be  
forthcoming.  
[421] As an individual blogger without the institutional resources of traditional media  
organizations to investigate and verify information, I find that it was reasonable for  
Mr. Janke to rely on Mr. Wilson’s sworn campaign return on the Elections Canada’s  
website without taking further steps to physically inspect the supporting  
documentation. To the extent that Mr. Wilson paid for and recorded campaign  
expenses in a manner that precluded a person reviewing his return from being able  
to identify them, the consequences should not be Mr. Janke’s to bear.  
[422] However, that does not answer the concern that Mr. Janke took no steps to  
solicit Mr. Wilson’s side of the story before publishing the letter. It bears repetition  
that the Court recognized in Grant that this “core factor “is particularly crucial in the  
due diligence analysis since it speaks to the essential sense of fairness the defence  
is intended to promote. That proposition has resonance here since Mr. Wilson did  
have information that could have illuminated or resolved a number of the apparent  
inconsistencies in his campaign return.  
[423] The campaign return, although a sworn document, was not responsive to the  
allegations in the Anonymous Letter; indeed, it was the basis for the allegations. It is  
therefore no answer to say it was unnecessary to seek Mr. Wilson’s side of the story  
since the return was essentially his sworn comment on the matter. I have some  
sympathy for the position that Mr. Janke assumed from the blanket denials in the  
press that Mr. Wilson was unlikely to have anything to say to him. Nevertheless, he  
did not make any effort to confirm that was the case. While I accept that a blogger  
operates under resource limitations the mainstream press do not, Mr. Janke could  
have taken steps to email or otherwise contact Mr. Wilson without ever leaving his  
desk.  
Lougheed Estate v. Wilson  
Page 112  
[424] For this reason, I conclude that in the circumstances, given the seriousness of  
the allegations, Mr. Janke did not exercise sufficient diligence to avail himself of the  
defence.  
[425] I hasten to add, given Mr. Wilson’s submission that Mr. Janke was malicious  
in his failure to undertake further steps to investigate the allegations before posting  
the letter, that I am not at all persuaded that is the case. I do not find that Mr. Janke  
posted the material either knowing it was false or with reckless indifference in that  
regard. He took what I have found to be reasonable steps to verify the information.  
But for his failure to seek Mr. Wilson’s side of the story before publishing, I would  
have found his communication responsible.  
Justification  
[426] The impugned statements in the Anonymous Letter are a combination of fact  
and opinion. That Mr. Wilson deliberately failed to report eight election expenses and  
donations on his campaign return is a statement of fact. The contentions that the  
eight charges collectively demonstrate a systemic pattern of deception and that they  
necessitate an immediate investigation by Elections Canada into Mr. Wilson’s  
campaign expense filing are statements of opinion.  
[427] As noted earlier, the defence of justification turns on the sting of the  
defamatory statement and whether it would have a different effect on a reader than  
the truth.  
[428] The sting of the Anonymous Letter insofar as it contained statements of fact  
was that Mr. Wilson had committed numerous infractions of the Canada Elections  
Act by deliberately failing to report campaign expenses on his electoral return; in  
other words, that he had cheated.  
[429] I have found that Mr. Wilson failed to declare the printing costs for at least a  
portion of the brochures and the donation of the umbrellas on his campaign return.  
However, the balance of the allegations in the Anonymous Letter have not been  
proven to be substantially true. While I have found that Mr. Wilson did violate the  
 
Lougheed Estate v. Wilson  
Page 113  
Canada Elections Act, the intensity of the sting conveyed by the Anonymous Letter,  
based on its litany of specific allegations against Mr. Wilson, was of an entirely  
different order. Although the authorities do recognize that minor inaccuracies do not  
preclude the defence so long as the publication conveyed an accurate impression,  
that was not the situation here. I note that the issue of cash payments was not  
addressed in the Anonymous Letter.  
[430] I therefore conclude that the defence of justification has not been met in this  
case.  
[431] This conclusion is also fatal to the defence of fair comment insofar as the  
statements of opinion in the Anonymous Letter are concerned. One of the elements  
of the defence is that the impugned comments must be based on fact. The  
statements of opinion expressed in the Anonymous Letter regarding a “systemic  
pattern of deception” necessitating an immediate investigation were premised on a  
factual foundation that has turned out to be substantially untrue. Accordingly, the  
defence of fair comment is also not available to Mr. Janke.  
Summary Re: Janke’s Liability  
[432] In summary, I find that Mr. Wilson has established that the impugned  
statements in the Anonymous Letter were defamatory. I conclude that Mr. Janke  
cannot rely on the defence of qualified privilege, responsible communication,  
justification, or fair comment. Having established a claim in defamation Mr. Wilson is  
entitled to damages from Mr. Janke. I will address the appropriate quantum of those  
damages later in these Reasons.  
Judy Tyabji and Tugboat Enterprises Ltd.  
Parties  
[433] Ms. Tyabji is a consultant and the chief operating officer of Quantum Key  
Data Recovery.  
[434] Both Ms. Tyabji and her husband, Gordon Wilson, have a long history of  
being politically active. Ms. Tyabji has been involved in both the provincial and  
     
Lougheed Estate v. Wilson  
Page 114  
federal Liberal parties since her attendance at the University of Victoria. According to  
Ms. Tyabji, her family, who immigrated to Canada, instilled a strong sense of public  
service in her. Ms. Tyabji has been a member of the Liberal Party of Canada since  
approximately 1983. Over the years, she has served on various committees and  
assisted the Liberal Party with campaigns and fundraising.  
[435] In 1991, Ms. Tyabji successfully ran for office in the riding of Okanagan-East  
and she served as a Member of the Legislative Assembly of British Columbia and  
BC Liberal caucus until 1993. She then changed parties and sat as a member of the  
newly-formed Progressive Democratic Alliance. She served until she lost her re-  
election bid in the 1996 provincial election. Thereafter, Ms. Tyabji became a media  
personality, management consultant and businesswoman.  
[436] Tugboat Enterprises Ltd. (“Tugboat”) is a data recovery software company. It  
was incorporated in 2004. The Tugboat offices were located in a separate building  
on the grounds of Ms. Tyabji’s residence. Ms. Tyabji was the Chief Executive Officer  
and founder of Tugboat at the material time. Gordon Wilson was the Chairman of the  
Board and President. He was largely responsible for raising the capital for Tugboat  
and its ventures.  
Allegations against Judi Tyabji and Tugboat  
[437] Although Mr. Wilson advances several claims against Ms. Tyabji and Tugboat  
in his Counterclaim, again the specifics of the claims are somewhat difficult to  
interpret. The difficulties were compounded because in some instances Mr. Wilson’s  
submissions did not adhere to the issues raised in his pleadings.  
[438] In Weaver v. Corcoran, 2017 BCCA 160, Madam Justice Dickson recently  
expounded the critical importance of pleadings in defamation actions:  
[64] In defamation actions, pleadings are exceptionally important. This is due  
in part to the serious nature of defamation allegations and the significance of  
context in assessing them in an appropriately informed, well-balanced way.  
Traditionally, defamation pleadings have attracted a more critical evaluation  
than those in other causes and have been held to a higher standard  
regarding the precision with which material facts must be pleaded. This  
enhanced judicial scrutiny is justified based on the need to avoid unwarranted  
 
Lougheed Estate v. Wilson  
Page 115  
“fishing expeditions” and the critical importance of the defendant knowing  
clearly the case to be met: Laufer v. Bucklaschuk (1999), 181 D.L.R. (4th) 83  
at para. 24 (M.B.C.A.); The Catalyst Capital Group Inc. v. Veritas Investment  
Research Corporation, 2017 ONCA 85 at paras. 22‒25.  
[65] More recently, courts have applied greater flexibility when analysing  
defamation pleadings, at least in the early stages of a proceeding. While the  
need for enhanced scrutiny and precise pleadings remains, it is recognised  
that plaintiffs may be unable to provide full particulars of allegations prior to  
discovery. For this reason, where a plaintiff pleads a prima facie case of  
defamation, including all reasonably available particulars of defamatory  
material, the pleadings may stand despite a lack of detailed facts outside the  
plaintiff’s knowledge: Catalyst Capital Group at paras. 25‒29. Nevertheless,  
given the fundamental values at stake in a defamation action, it remains  
particularly important for parties to plead and adhere to clearly defined issues  
of fact and law.  
[439] With these guiding principles in mind, I turn to consider the claim against  
Ms. Tyabji and Tugboat.  
[440] At trial, Mr. Wilson abandoned any claims regarding breach of the Privacy  
Act. Therefore, the following allegations at paras. 18-20 in the Counterclaim that  
Ms. Tyabji delivered confidential financial records to Mr. Marissen were not pursued:  
18. The Defendant Tyabji delivered documentation to Marissen which were  
the private and confidential financial records of Blair Wilson’s company CB  
Wilson Capital Ltd, Kelly Wilson’s company Mountainside Ventures Ltd.,  
cheques to Blair and Kelly Wilson from Collingwood School and unsigned  
and undated letters allegedly involving Blair Wilson.  
19. The Defendant by Counterclaim Tyabji had possession of those private  
documents without colour of right and knew that they were the private and  
confidential records of Blair Wilson and Kelly Wilson or their companies.  
20. The Defendant by counterclaims Tyabji republished those documents to  
Marissen knowingly or with reckless disregard to the authenticity of the  
documents and without regard to the privacy of the documents.  
[441] The essence of Mr. Wilson’s claim against Ms. Tyabji is that she:  
(i) authored and distributed the Anonymous Letter that was sent to Elections  
Canada (Counterclaim paras. 28 and 29);  
(ii) passed alleged defamatory documents to Mark Marissen, the BC  
Campaign Chair of the Liberal Party of Canada, and others within the  
Liberal Party (Counterclaim paras. 23, 26, 27, and 29);  
Lougheed Estate v. Wilson  
Page 116  
(iii) communicated off-the-record with Ms. O’Connor about alleged debts and  
violations of the Canada Elections Act. (Counterclaim paras. 24 and 26);  
and  
(iv)  
provided a comment intended for publication that she believed that Blair  
Wilson was unfit for public office (Counterclaim para. 33(o)).  
[442] Mr. Wilson asserts that Ms. Tyabji was motivated and actuated by malice at  
paras. 16, 20, and 21 of the Counterclaim. Mr. Wilson also alleges malice as against  
Ms. Tyabji in Part 3: Legal Basis. In particular Mr. Wilson alleges joint and several  
liability and that Ms. Tyabji and the other defendants acted in a deliberate and  
coordinated attempt to cause political and financial damage to Mr. Wilson and his  
family.  
[443] I reproduce below the key sections of Mr. Wilson’s Counterclaim as it relates  
to Ms. Tyabji.  
[444] Mr. Wilson alleges in para. 28 that Ms. Tyabji is the author of the Anonymous  
Letter to Elections Canada:  
28. The Defendant Tyabji together with Art Alexander and other unknown  
person(s) prepared a report dated October 24, 2007, purporting to be a letter  
addressed to the Commissioner of the Canada Elections Act (“the October  
24, 2007 Anonymous Report”) and forwarded the October 24, 2007  
Anonymous Report to the defendants O’Connor, Canwest, Marissen, and  
Steve Janke with the intention that they would republish the report and its  
contents.  
[445] Paragraphs 22 and 27 of the Counterclaim states as follows:  
22. During the months of September and October 2007, the Defendant Tyabji  
and the Defendant Marissen discussed steps to be taken to launch media  
attacks against the person and character of the Defendant Blair Wilson, using  
allegations of financial misconduct and allegations of violations of the Canada  
Elections act 2000, c. 9 to damage the Defendant Blair Wilson’s reputation  
and political career.  
…
27. During the months of September and October 2007, the Defendants  
Tyabji and Marissen communicated about assembling documentation relating  
to the Defendant Blair Wilson’s activities during the 2006 election campaign.  
Lougheed Estate v. Wilson  
Page 117  
Included in this, was accessing confidential material held by the Liberal Party  
of Canada including, but not limited to:  
a) Copies of material in the Defendant Blair Wilson’s Green Light forms  
submitted in regard to the 2004 and 2006 election campaigns; and  
b) Copies of material submitted by the Defendant Blair Wilson’s Official Agent  
which were copies to the Liberal Party of Canada  
c) Checks [sic] written to Blair Wilson and Blair Wilsons’ then company C.B.  
Wilson Capital which were the property of Kelly Wilson’s company  
Mountainside Ventures Ltd. as set out in paragraphs 14, 18 through 24, and  
28 through 37 of this Counterclaim.  
[446] Paragraphs 23 through 24, and 26 of the Counterclaim allege that:  
23. The defendants by counterclaim Marrrisen and [sic] Tyabji circulated  
materials within the National Executive of the Liberal Party of Canada and to  
members of committees including but not limited to the National Campaign  
Committee, and to other various Liberal Party members alleging that Blair  
Wilson had:  
a) Forged signatures on documents including cheques  
b) Violated provisions of the Canada Elections Act, including but not  
limited to making illegal payments for his campaign headquarters  
c) Borrowed money from his mother-in-law while on her death bed.  
24. During the months of September or October, 2007, the Defendants [sic]  
Tyabji came in contact with the Defendant O’Connor, a newspaper reporter  
employed with the Defendant Canwest.  
…
26. During the Months of September and October 2007, the Defendants [sic]  
Tyabji and the Plaintiff Lougheed supplied information to the Defendant  
O’Connor and members of the Liberal Party of Canada executive, the  
National Campaign Committee, and British Columbia Campaign Committee  
and other Liberal Party members in regard to alleged debts of the Defendant  
Blair Wilson owing to the Plaintiff Lougheed.  
These allegations included:  
e) and claims that the defendant Blair Wilson had been involved in numerous  
violations of the Canada Elections Act 2000, c. 9 during the campaign for the  
Federal Election of January 23, 2006.  
[Emphasis added.]  
[447] Finally, at para. 33 Mr. Wilson complains of Ms. Tyabji’s comment that  
appeared in the Article:  
33. Included in the articles were the following statements:  
Lougheed Estate v. Wilson  
Page 118  
…
o) Having seen Wilson’s conduct in Powell River and having reviewed  
information about his financial dealings, Powell River riding member and  
former B.C. Liberal Okanagan East MLA Judy Tyabji said she doesn’t feel  
Wilson is fit for office.  
“I don’t believe he’s the right person to be representing the riding. I think that  
when you come forward to serve the public, you have to be acting in a way  
that is consistent with what you say you represent,” Tyabji said, noting she  
has taken her concerns to people in positions of authority in the party.  
“I haven’t come to this decision lightly,” she said, “but from what I have seen  
with my own eyes, I don’t believe that Blair’s standards of financial conduct  
are consistent with good public service.”  
Position of the parties  
[448] Mr. Wilson’s overarching contention is that Ms. Tyabji embarked on a  
campaign to discredit and defame him immediately after she accepted money from  
Mr. Lougheed for an investment in Tugboat. Mr. Wilson alleges that the quid pro quo  
was Ms. Tyabji’s promise to destroy his political career. Mr. Wilson alleges that the  
defence of qualified privilege or fair comment, upon which Ms. Tyabji relies, is  
defeated because she was actuated by malice.  
[449] Mr. Tyabji counters with the submission that at all times she acted out of  
loyalty to the Liberal Party and that she was compelled out of duty to ensure that any  
materials relevant to Mr. Wilson’s candidacy received due diligence with the Liberal  
Party processes. She asserts that she acted entirely appropriately by limiting her  
distribution of the potentially relevant materials to the appropriate Liberal Party  
official, Mr. Marissen, for an internal investigation. She maintains that the negative  
media attention concerning Mr. Wilson was orchestrated by his political rivals in the  
Conservative Party and that she approached Mr. Marissen in order to provide the  
Liberal Party with an opportunity to prepare for any adverse consequences of the  
impending negative publicity.  
[450] Ms. Tyabji maintains that the investment made by Mr. Lougheed in Tugboat  
was a legitimate investment in a promising data recovery software company.  
 
Lougheed Estate v. Wilson  
Page 119  
[451] Finally, Ms. Tyabji relies on the defence of fair comment for her  
communications with Ms. O’Connor.  
Preliminary remarks about credibility  
[452] Mr. Wilson waged an all-fronts attack on Ms. Tyabji’s credibility. He urged the  
Court to find that her testimony on disputed matters was, at its core, wholly  
untruthful.  
[453] A witness may sincerely believe she is telling the truth, but lack sufficient  
memory to give reliable testimony. Alternatively, a witness “may unconsciously  
indulge in the human tendency to reconstruct and distort history in a manner that  
favours the desired outcome”: Hardychuck v. Johnstone, 2012 BCSC 1359 at  
para. 10. The Court must also be mindful that a witness may simply choose not to  
tell the truth about certain matters out of self-interest, to protect others or for any  
host of reasons: Sateri (Shanghai) Management Limited v. Vinall, 2017 BCSC 491 at  
para. 31.  
[454] The assessment of credibility is not an all or nothing proposition. The court  
may believe none, part or all of a witness’s evidence, and may accord different  
weight to different parts of a witness’s evidence: R. v. D.R., [1996] 2 S.C.R. 291 at  
para. 93. Ultimately the assessment of evidence on any given issue turns on the  
probabilities associated with the case as a whole and shown to be in existence at  
the relevant time: Farnya v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.); Bradshaw v.  
Stenner, 2010 BCSC 1398 at para. 186.  
[455] For the reasons that follow at paras. 475-484, I do not accept Ms. Tyabji’s  
evidence regarding what documents she provided to Mr. Marissen. However, I found  
Ms. Tyabji to be truthful and her evidence reliable as it concerned other significant  
contentious points in this matter. Her evidence, in many other instances, was  
supported by the weight of other probative evidence.  
[456] I will address the factual underpinnings of Mr. Wilson’s claim against  
Ms. Tyabji and Tugboat before turning to the legal analysis.  
 
Lougheed Estate v. Wilson  
Page 120  
[457] The summary of facts that follow reflects evidence that was either not in  
dispute or factual findings I have made based on the consideration of the evidence  
as a whole.  
Interactions with Blair Wilson  
[458] Mr. Wilson won the 2004 nomination as the Liberal Party candidate in the  
Riding. After narrowly losing the 2004 election, Mr. Wilson was re-nominated as the  
Liberal Party candidate in the 2006 federal election. In the 2004 election, Ms. Tyabji  
had actively supported the unsuccessful candidate through the nomination process  
for the Liberal Party candidacy in the Riding. However, in the 2006 election,  
Ms. Tyabji did what she could to support Mr. Wilson’s candidacy. She endorsed and  
supported Mr. Wilson throughout the election campaign. She and Gordon Wilson  
hosted a fundraiser for him at their home in 2005. When Mr. Wilson won the election  
she assisted him with staffing and securing a constituency office.  
[459] After the 2006 election, Ms. Tyabji became concerned that she was unable to  
reach Mr. Wilson. There was a uniformity of negative feedback from constituents  
and office staff about Mr. Wilson’s general lack of attentiveness. There were delays  
in paying rent and the wages of his constituency assistant. Ms. Tyabji was  
particularly troubled when she observed that the constituency office was locked and  
the lights were off. She found it alarming that Mr. Wilson had alienated his  
supporters in Powell River. Mr. Wilson’s campaign workers repeatedly raised  
concerns in relation to Mr. Vilas having paid campaign expenses in cash and that  
there had been improper declaration of Mr. Wilson’s campaign expenses. The local  
Riding executive, who formerly had been staunch supporters of Mr. Wilson, resigned  
as a group in the fall of 2006 because they had lost confidence in him. Ms. Tyabji’s  
evidence in this regard is corroborated by Laurie McNeill and Joke Pulman-Tuin’s  
testimony and the email correspondence with Riding Association.  
[460] After the local Riding executive resigned, Ms. Tyabji agreed to assume the  
role of the Vice President of the Riding Association for Powell River. Her duties  
 
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included signing up new members, updating the membership lists with the party  
central, door-knocking, fundraising, and organizing support for the other volunteers.  
[461] By late 2006, Ms. Tyabji was sufficiently concerned that she approached a  
representative of the Riding Association in Vancouver about the possibility of  
contesting Mr. Wilson’s nomination in the future. Based upon her inquiries, she  
came to understand that as a sitting Member of Parliament in a minority government  
Mr. Wilson would have his nomination automatically confirmed.  
[462] Early in 2007, Mr. Wilson called Ms. Tyabji asking for her assistance in  
redeeming his support in Powell River. Ms. Tyabji met with him and clearly spelled  
out her concerns with respect to his inattentiveness. As well, she conveyed to him  
the concerns that had been communicated to her by other constituents and  
volunteers, including the allegations about Mr. Vilas and the cash payments and  
irregularities in the campaign financing. By 2007, she was one of the few volunteers  
in Powell River willing to continue assisting Mr. Wilson.  
[463] Following their meeting and with Ms. Tyabji’s assistance, Mr. Wilson made  
efforts to regain support in Powell River. Ms. Tyabji put together a list of events and  
attended some of those events with Mr. Wilson. Ms. Tyabji referred to this as the  
“apology tour”. Mr. Wilson maintains that Ms. Tyabji’s version of events is not  
accurate. I conclude that on this point where Mr. Wilson’s testimony conflicts with  
Ms. Tyabji’s, her evidence is more credible and I accept it in preference to that of Mr.  
Wilson.  
[464] In any case, Ms. Tyabji and Gordon Wilson planned another fundraiser for  
Mr. Wilson at their home. In April 2007, Gordon Wilson prepared a fundraising and  
campaign proposal and analysis for Mr. Wilson  
[465] In order to plan for the upcoming fundraiser, Ms. Tyabji and Gordon Wilson  
invited Mr. Wilson and his wife Kelly to their home for dinner on June 29, 2007. At  
the end of the evening, Mr. Wilson and his wife informed their hosts that there may  
be litigation over Norma’s estate. Ms. Tyabji and her husband found the manner in  
Lougheed Estate v. Wilson  
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which Mr. Wilson and his wife conveyed this information distasteful and determined  
that thereafter they would not pursue a social relationship with the couple.  
Nonetheless, they continued to support Mr. Wilson politically.  
Communications with members of the Conservative Party  
[466] John Reynolds, the former Member of Parliament in Mr. Wilson’s riding,  
telephoned Gordon Wilson sometime in 2007. Gordon Wilson was the Member of  
the Legislative Assembly during the currency of Mr. Reynolds’ term as a Member of  
Parliament in the Conservative Party caucus. Although they belonged to different  
political parties, over the years they worked together on various local issues on  
behalf of their constituents and they had become friends. Mr. Reynolds persuasively  
recounted to the Court that he telephoned Gordon Wilson to inform and “warn” him  
and Ms. Tyabji that various operatives in the Conservative Party were mounting a  
negative publicity campaign against Mr. Wilson. Mr. Reynolds was aware that they  
were supporting Mr. Wilson and he did not want them to be embarrassed. When  
Gordon Wilson attempted to defend Mr. Wilson, Mr. Reynolds urged them to meet  
with their mutual friend, Mr. Alexander.  
[467] Gordon Wilson eventually did meet with Mr. Alexander, who was another  
supporter of the Conservative Party. At this meeting, he became aware that  
Mr. Wilson had been involved in several lawsuits and he disengaged from making  
any further efforts to assist Mr. Wilson. It was not the existence of the lawsuits that  
Gordon Wilson found alarming but the fact that, in response to his direct question,  
Mr. Wilson had previously flatly denied their existence.  
[468] At the invitation of Mr. Alexander, Ms. Tyabji and Gordon Wilson met with  
Mr. Lougheed in the fall of 2007. Ms. Tyabji was shown documents pertaining to  
Mr. Wilson that she felt “may create problems for the Liberal Party”. Ms. Tyabji, after  
making some inquiries, was advised that Mr. Marissen was the appropriate official of  
the Liberal Party in B.C. with whom she should raise her concerns.  
[469] I accept that before contacting Mr. Marissen, Ms. Tyabji made several efforts  
to contact Mr. Wilson directly but she was unsuccessful in reaching him.  
 
Lougheed Estate v. Wilson  
Communications with Mark Marissen  
Page 123  
[470] Ms. Tyabji telephoned Mr. Marissen in September 2007 and made an  
appointment to meet him in Vancouver. In this initial discussion, she did not explain  
what she wished to discuss with him.  
[471] Ms. Tyabji met with Mr. Marissen in Vancouver briefly in September 2007 and  
informed him of a brewing controversy regarding Mr. Wilson. She told him that, in all  
likelihood, there would be negative media attention directed at Mr. Wilson  
orchestrated by members of the Conservative Party, and that she had seen  
documents that could be problematic for the Liberal Party. The preponderance of the  
evidence that I prefer supports a finding that they had a brief and general discussion.  
Ms. Tyabji’s stated objective was to “give the Liberal Party some notice, provide the  
party with an opportunity to be prepared for the negative publicity, and to give the  
party the opportunity to conduct an investigation into possible issues with Blair  
Wilson, with a view to validating his suitability as a candidate”.  
[472] In October of 2007, Ms. Tyabji picked up copies of some documents at  
Mr. Lougheed’s home on Pender Harbour and placed them in an envelope.  
Ms. Tyabji then gave the envelope to Mr. Marissen’s wife on the express  
understanding that she would deliver them to Mr. Marissen. Ms. Tyabji emphasized  
that the documents were intended only for Mr. Marissen and no one else.  
[473] Following their brief meeting, Ms. Tyabji telephoned Mr. Marissen to let him  
know that she had left an envelope with his wife. Ms. Tyabji and Mr. Marissen had  
no further discussions regarding Mr. Wilson.  
[474] Specifically, I find that Ms. Tyabji never discussed planning any media attacks  
on Mr. Wilson with Mr. Marissen as alleged in para. 27 of the Counterclaim, or at all.  
The evidence clearly established that the negative campaign was instigated by  
Mr. Wilson’s political rivals.  
[475] Precisely what documents Ms. Tyabji forwarded to Mr. Marissen was the  
subject of some controversy. Ms. Tyabji testified that the contents of the envelope  
 
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comprised two or three pages of various cheques. Ms. Tyabji testified that she  
specifically turned down a fuller package of materials when collecting the documents  
in Pender Harbour.  
[476] According to Mr. Marissen, he received an envelope containing a number of  
cheques including a cheque from Collingwood School, accounting notes concerning  
debts allegedly owing to the Lougheeds, and materials from MAC Multimedia that  
alleged wrongdoing by Mr. Wilson. The entirety of the contents of the envelope that  
Mr. Marissen received was tendered at trial. It was this package of documents that  
he delivered to the Liberal Party representatives of the Green Light Committee.  
Earlier in these Reasons, I refer to this as the Package. In so far as the Elections  
Canada issue, the only potentially relevant documents in the Package were the  
copies of cheques from Norma for the payment of rent for the Liberal Party office in  
Sechelt.  
[477] According to Mr. Marissen, he was told by his wife that she had placed the  
envelope that Ms. Tyabji had given her in his office. He then found an envelope in  
his office upon returning home and assumed that the envelope was from Ms. Tyabji.  
He only gave the documents a cursory look before he passed the Package along to  
Mr. McLachlan for his review. Mr. Marissen did not receive any additional or  
duplicative envelopes. He did not review the contents with Ms. Tyabji at any time  
prior to this litigation.  
[478] Ms. Tyabji spoke by telephone with Ms. O’Connor on October 19, 2007. Their  
conversation was recorded by Ms. O’Connor. Ms. Tyabji was not aware that her  
conversation with Ms. O’Connor was recorded and the statements were not made in  
contemplation of litigation. The tape was played for the Court at trial.  
[479] Ms. Tyabji’s discussion with Ms. O’Connor is consistent with a finding that  
Ms. Tyabji had in fact arranged for the delivery of the Package that was ultimately  
received by Mr. Marissen. Ms. Tyabji states on the call that the package that she  
gave Mr. Marissen included cheques that were alleged to be forged, “some  
accounting of moneys that were misappropriated from Bill”, and information on MAC  
Lougheed Estate v. Wilson  
Page 125  
Multimedia. She also mentions the Collingwood School refund cheque. At trial she  
stated that the package also included the cheques that she believed showed third  
party rent payments made by Norma on behalf of Ms. Wilson for the Liberal office in  
Sechelt. These documents were included in the package of documents she  
delivered to Mr. Marissen.  
[480] Ms. Tyabji also refers to allegations of forgery and misappropriation in her  
telephone call with Ms. O’Connor. Balancing the evidence as a whole, I find that  
these allegations emanated from a conversation between Ms. Tyabji and Mr.  
Lougheed. The allegations of misappropriation likely refer to the Collingwood School  
cheque. On the forgery, I note that in the Package, there is a handwritten notation  
that says “forged?” in reference to a cheque for $63,500 from Mountainside payable  
to CB Wilson Capital. The cheque appears to bear the signature of both Kelly Wilson  
and Mr. Lougheed. At trial, there was some discussion that it was not Mr.  
Lougheed’s signature but there was a suggestion that ultimately there was a  
legitimate explanation for it. In any case, for reasons not adduced at this trial, the  
allegations of forgery were never pursued and those allegations were never included  
in either of the impugned publications.  
[481] Ms. Tyabji told Ms. O’Connor that she sent Mr. Marissen “2 or 3 pieces of  
paper” yet her description of the documents is at odds with her page count. She  
went on to explain that somebody else “has this big file”. It was her evidence that  
she did not take any additional documents because the other documents would not  
be significant to the Liberal Party without an explanation: an explanation that she  
was not equipped to provide.  
[482] According to Ms. Tyabji, it was only in the fall of 2015 that she realized that  
the documents that she had sent to Mr. Marissen were different than those that he  
produced in this litigation. She immediately alerted the parties of the issue at that  
time. She made some efforts to locate the envelope that she claims she gave to  
Mr. Marissen’s wife but to no avail. This matter is complicated by the fact that  
Ms. Tyabji was not the only person with access to copies of these documents; it can  
Lougheed Estate v. Wilson  
Page 126  
reasonably be inferred that there were multiple copies of these documents  
circulating in the Conservative Party political circles at the material time.  
[483] In the end, I find that the most reliable evidence regarding the contents of the  
envelope was the information Ms. Tyabji conveyed to Ms. O’Connor in 2007.  
[484] Balancing the evidence as a whole, I find that it was Ms. Tyabji who arranged  
for the delivery of the Package that Mr. Marissen received. He, in turn, passed along  
the Package to the Green Light Committee. This conclusion accords with the  
preponderance of probabilities a reasonable person would recognise in the  
circumstances of the case.  
Communications with Elaine O’Connor  
[485] As I mentioned, on October 19, 2007, while preparing to publish a story about  
Blair Wilson, Ms. O’Connor spoke with Ms. Tyabji to acquire both off-the-record  
“background” information and to solicit a quote from her for publication. Ms. Tyabji  
and Ms. O’Connor agreed that the bulk of their conversation was “off-the-record”.  
[486] Ms. Tyabji outlined her concerns about Mr. Wilson, she highlighted the steps  
she took to get Mr. Wilson elected, and the problems associated with his post-  
election conduct. Neither Ms. Tyabji nor Ms. O’Connor made any express  
statements about any alleged campaign financing irregularities or the Election Act  
violations. However, the totality of the evidence supports a finding that at the time of  
the discussion they were both fully aware of those allegations.  
[487] There was no discussion of alleged debts to the Lougheeds. Ms. O’Connor  
remarked that the Wilsons “have extreme financial hardship there right now big big  
debt”. Ms. Tyabji‘s response was: “Now I don’t know now of course I knew nothing  
about that all I knew was that here is a member of parliament, he’s gotta be making  
good money”.  
[488] Notably, Mr. Wilson misstates the evidence on one point in his submission:  
Ms. Tyabji did not state to Ms. O’Connor that she wanted to help Mr. Alexander get  
 
Lougheed Estate v. Wilson  
Page 127  
“some justice for Bill Lougheed”. She remarked that Mr. Alexander was “sure  
motivated to see Bill get some kind of justice out of this”.  
[489] As I mentioned, there was a discussion of an alleged forgery and  
misappropriation. Crucially, however, there is no complaint on the pleadings against  
Ms. Tyabji regarding her allegations of misappropriation or forgery. The allegation of  
misappropriation and forgery elicits an entirely different sting than that of  
indebtedness.  
Discussion  
Anonymous Letter  
[490] Mr. McIver provided a copy of the Anonymous Letter, the contents of which I  
have found to be defamatory, to Ms. O’Connor. Based on the totality of the  
evidence, I conclude that it is more likely than not that the Anonymous Letter was  
also circulated within Conservative Party circles in the Riding.  
[491] The evidence establishes that Mr. McIver was in frequent communication with  
Lynda Lougheed during the material time. Significantly, however, other than meeting  
her once at a social event, Ms. Tyabji had no communication with Lynda Lougheed.  
The evidence shows that Ms. Tyabji had no communications whatsoever with  
Mr. McIver.  
[492] The evidence does not support a finding that the specific matters contained in  
the Anonymous Letter were known to, or of concern to, Ms. Tyabji. Mr. Marissen  
testified that, while he had difficulties recalling the specifics of his conversation with  
Ms. Tyabji, he does not remember Ms. Tyabji mentioning the Anonymous Letter, nor  
any of its allegations when they spoke on the phone or met at his office to discuss  
Mr. Wilson. Similarly, there are no references to any of the allegations in Ms. Tyabji’s  
recorded conversation with Ms. O’Connor. In her email to Ms. Ditchburn dated June  
1, 2007, Ms. Tyabji states that she was not familiar with the Anonymous Letter.  
[493] Mr. Wilson makes much of the email that Ms. Tyabji sent to Mr. Alexander on  
December 12, 2007. Her email response was prompted by Mr. Alexander’s requests  
   
Lougheed Estate v. Wilson  
Page 128  
for her to send a complaint about Mr. Wilson to Elections Canada. In all the  
circumstances I am not persuaded that this evidence assists Mr. Wilson. Crucially,  
the pertinent email was sent some months after the Anonymous Letter had been  
circulated and was in response to an apparent concern that Elections Canada was  
abandoning their investigation because of the anonymous nature of the complaint.  
[494] In any case, Ms. Tyabji did send a letter to Elections Canada dated March 10,  
2008, which was tendered in evidence at trial. Notably she did identify herself in her  
correspondence and that letter is not complained of in this proceeding.  
[495] In the end, I find that Mr. Wilson did not prove on a balance of probabilities  
that either Ms. Tyabji or Tugboat had any involvement with the preparation,  
distribution or publication of Anonymous Letter. The evidence in relation to the  
averment at para. 28 fell considerably short of the mark.  
[496] In the absence of cogent evidence that Ms. Tyabji, either in her personal  
capacity or as the principal of Tugboat, was involved in the preparation, distribution  
or publication of Anonymous Letter, Mr. Wilson’s claim at para. 28 is dismissed.  
Communications with Mr. Marissen: Qualified Privilege  
[497] The allegations in paras. 22 and 27 were not pursued at trial, most likely  
because Mr. Wilson discontinued his claim against Mr. Marissen. In any event, I find  
that the allegations in paras. 22 and 27 were not proven at trial. Mr. Wilson did not  
prove at trial that Ms. Tyabji and Mr. Marissen had any more than a brief initial  
telephone discussion, one very brief meeting in October 2007 and another brief  
follow-up call to confirm that he had received the documents. Ms. Tyabji also sent  
him an email on December 12, 2007 to follow up on the status of matters with the  
Liberal Party. Although copies of the cheques described at para. 27(c) of the  
Counterclaim were included in the Package that Ms. Tyabji delivered to  
Mr. Marissen, the evidence falls short of establishing that they discussed those  
cheques.  
 
Lougheed Estate v. Wilson  
Page 129  
[498] The essence of the complaint against Ms. Tyabji as it relates to her  
communications with Mr. Marissen is set out in para. 23 of the Counterclaim. For  
ease of reference I have reproduced para. 23 at para. 446 of these Reasons.  
[499] The evidence does not establish that Ms. Tyabji spoke to any members of the  
National Executive of the Liberal Party other than Mr. Marissen. She had no  
discussions with Mr. McLaughlin or with any members of the Green Light  
Committee.  
[500] Further, the evidence does not establish that Ms. Tyabji discussed with  
Mr. Marissen, or provided him any information about, the allegation at 23(c):  
“Borrowed money from his mother-in-law while on her death bed”.  
[501] In so far as the allegations at 23(b), as I mentioned, copies of three rent  
cheques from Norma for the Cowrie Street Liberal office were included in the  
Package. On the preponderance of the evidence, I find that Ms. Tyabji likely raised  
this issue with Mr. Marissen. There were no other Canada Elections Act issues  
raised in either their discussions or in the Package.  
[502] In so far as the allegations at 23(a), the evidence establishes that Ms. Tyabji  
raised with Mr. Marissen the possibility of Mr. Wilson having some involvement with  
forged cheques.  
[503] It is uncontroversial that Ms. Tyabji communicated with Mr. Marissen about  
Mr. Wilson. The plain and ordinary meaning of Ms. Tyabji’s statements to  
Mr. Marissen and the documents she provided to him would tend to lower  
Mr. Wilson’s reputation in the eyes of a reasonable person. The communications  
complained of are in fact defamatory. Having established the constituent elements of  
defamation, falsity and damage are presumed. Accordingly, in order to avoid liability,  
the onus shifts to Ms. Tyabji to establish one or more defences.  
[504] Ms. Tyabji seeks to invoke qualified privilege with respect to her  
communications with Mark Marissen.  
Lougheed Estate v. Wilson  
Page 130  
[505] Ms. Tyabji expressly relies on the defence of qualified privilege in her  
pleading. Although she does not specifically refer to that defence in the section of  
her pleading regarding her communications with Mr. Marissen, she avers to its  
constituent elements in the pertinent portion of the pleading. That is sufficient. In any  
event, Mr. Wilson did not raise any issue about Ms. Tyabji’s entitlement to assert the  
defence of qualified privilege and it cannot be said that he suffered any prejudice as  
a result. Moreover, the law is unsettled as to whether a defendant must plead  
qualified privilege at all: see Wang v. British Columbia Medical Association, 2014  
BCCA 162 at para. 80.  
[506] It bears repetition that qualified privilege attaches to the occasion upon which  
the communication is made and not the communication itself. The defence of  
qualified privilege is predicated on a communication between a person who is under  
a duty to communicate information and an individual with a reciprocal interest in  
receiving the information. The reciprocity is essential and lies at the heart of the  
defence. Identifying the reciprocity of duty or interest requires a contextual analysis.  
This duty can be legal, social or moral.  
[507] In this case, I am satisfied that the requisite reciprocal duty/interest  
relationship is established. Ms. Tyabji submits that she was under a duty to  
communicate the information she did to Mr. Marissen. I agree. By virtue of her  
position as Vice-President of the Riding Association, Ms. Tyabji was under a duty to  
report to the appropriate official in the Liberal Party information regarding unproven  
allegations of misconduct of a member of the Liberal caucus. Ms. Tyabji believed  
that, if proven true, Mr. Wilson’s conduct was not reflective of the ethical standards  
set for holders of elected office for the Liberal Party. Correspondingly, Mr. Marissen,  
through his position in the Liberal Party, had a reciprocal legitimate duty or interest in  
receiving that information; he was responsible for ensuring there was an internal  
process for investigating the allegations.  
[508] The defence of qualified privilege may be defeated, not only by malice, but by  
a communication that exceeds the limits of the duty or interest that gives rise to the  
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Page 131  
privilege. Accordingly, I next address whether Ms. Tyabji’s communications  
exceeded the limits of her duty. The contextual approach mandated by the  
authorities, in turn, invites a highly individualized inquiry.  
[509] The courts are somewhat reluctant to permit a privileged occasion to be  
defeated by a claim that a communication exceeds the limits of duty. In Wang,  
Madam Justice Newbury synthesized the animating principles as follows:  
[99] Once a privileged occasion has been established, courts are somewhat  
reluctant to permit it to be defeated by a claim of ‘excess’. According to  
Brown:  
In light of the policy supporting qualified privileges, the question of  
excess should not be viewed narrowly. The language used by the  
defendant on a privileged occasion is not to be subjected to too strict  
a scrutiny and all excess found to defeat the protection which the  
privilege affords. [At §13.7(5).]  
The same principle was referred to in the Privy Council’s decision in  
Laughton v. Bishop of Sodor and Man (1872) L.R. 4 P.C. 495, quoted  
approvingly in Lord Dunedin’s speech in Adam v. Ward at 330:  
To submit the language of privileged communications to a strict  
scrutiny, and to hold all excess beyond the absolute exigency of the  
occasion to be evidence of malice would in effect greatly limit, if not  
altogether defeat, that protection which the law throws over privileged  
communications. [At 508.]  
Expressing the same point in more colourful terms, the Court in Birchwood  
Homes Ltd. v. Robinson [2003] EWHC 293 (Q.B.) observed that “a person  
speaking on a privileged occasion should not be regarded as a tightrope  
walker without a safety net, with the judge waiting underneath with bated  
breath hoping for a tumble.” (At para. 27.)  
[510] In her submissions, Ms. Tyabji underscored that the negative information on  
Mr. Wilson emanated from his political rivals who were associated with the  
Conservative Party of Canada. Ms. Tyabji maintains she was motivated by loyalty to  
the Liberal Party and her dominant objective was at the material time to minimize the  
potential negative impact on the Liberal Party.  
[511] I accept that Ms. Tyabji’s objective was for the appropriate Liberal Party  
officials to instigate an investigation into the allegations. Ms. Tyabji’s conduct is  
consistent with her assertions. Ms. Tyabji spoke to Mr. Marissen about the difficulties  
in the Riding and the controversies that were developing regarding Mr. Wilson. Her  
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Page 132  
stated concerns were his fitness for office and ensuring good public service. She  
sent a sealed envelope with the information that was presented to her, and what she  
understood to be evidence of third party payments of rent for Liberal offices. I accept  
that, at the pertinent time, she believed that the Liberal Party was in the best position  
to conduct a private investigation to assess the allegations and seek out an  
explanation from Mr. Wilson.  
[512] Bearing the authorities in mind and taking a contextual approach, I conclude  
that, in arranging for the delivery of the Package, Ms. Tyabji passed along the  
information that was called for by the occasion. It was reasonably germane and  
warranted in the context of the circumstances and relevant to the duty and interest  
that gave rise to the occasion. Ms. Tyabji did not exceed the limits of her duty.  
[513] Where statements are made on a privileged occasion, the good faith of the  
defendant is presumed unless the plaintiff can prove that the statements were  
motivated by malice: Robinson v. Furlong, 2015 BCSC 1690 at para. 374. In any  
case, I am satisfied that in her communications with Mr. Marissen, Ms. Tyabji acted  
honestly, and in good faith. The evidence does not establish that Ms. Tyabji was  
aware that any of her communications with Mr. Marissen were untrue or that she  
was reckless as to their truth or falsity.  
[514] I conclude that, in these circumstances and in this context, the occasion on  
which Mr. Tyabji communicated with Mr. Marissen was one of privilege. It is  
precisely on these types of occasions - when duty drives disclosure - that qualified  
privilege is invoked. Ms. Tyabji’s communications fell within the ambit of the privilege  
defence and did not exceed the privileged occasion on which they were made.  
[515] Ms. Tyabji has accordingly satisfied the onus upon her of establishing that her  
communications to Marissen were published on an occasion of privilege, thereby  
rebutting the presumption of malice that arises from my findings that the relevant  
communications were defamatory. I will return to consider whether the defence  
nevertheless fails because of express or actual malice later in these Reasons.  
Lougheed Estate v. Wilson  
Communications with Ms. O’Connor: Fair Comment  
Page 133  
[516] Based on his pleadings, Mr. Wilson’s complaint regarding Ms. Tyabji’s  
communications with Ms. O’Connor is limited to her comment on his fitness for  
office, communications that relate to alleged debts owing to the Lougheeds, and  
communications in relation to violations of the Canada Elections Act.  
[517] The evidence does not establish that in their telephone discussion - either on  
or off the record - Ms. Tyabji made any defamatory statements regarding the  
Canada Elections Act infractions or debts to the Lougheeds. As I mentioned, there is  
no complaint in the Counterclaim regarding any allegations of misappropriation or  
forgery.  
[518] I therefore turn to Ms. Tyabji’s comment at para. 33(o) of the Counterclaim. It  
is found at para. 62 and 63 of the Article.  
[519] Ms. Tyabji does not seriously dispute that the words complained of are  
defamatory. It is clear that Ms. Tyabji communicated these statements to  
Ms. O’Connor and that her statements referred to Mr. Wilson. On their natural and  
ordinary meaning, Ms. Tyabji’s “on the record” comments to Ms. O’Connor would  
tend to lower Mr. Wilson’s reputation in the eyes of a reasonable person. Mr. Wilson  
has established that the impugned statements are in fact defamatory. Accordingly,  
the onus shifts to Ms. Tyabji to establish one or more defences to avoid liability.  
[520] If Ms. Tyabji is found liable she will be liable for the republication of her  
comments in the Article as she intended the comment to be published in the  
newspaper and expressly authorized the republication: Wilson v. Switlo at para. 164-  
166.  
[521] Ms. Tyabji asserts that her communications with Ms. O’Connor are protected  
by the defence of fair comment. Ms. Tyabji argues that the comments she made as  
a member of the Liberal Riding Association were carefully considered and a  
reflection of her informed opinion, that she was entitled to express freely.  
 
Lougheed Estate v. Wilson  
Page 134  
[522] I next address whether Ms. Tyabji has established the four constituent  
elements of the defence of fair comment. I note that Mr. Wilson did not advance  
specific arguments refuting Ms. Tyabji’s defence of fair comment. He relies solely on  
malice to defeat the defence.  
[523] Clearly, Mr. Wilson’s fitness for public office and his financial conduct is  
comment on a matter of public interest. It is also clear that Ms. Tyabji’s comments  
are recognizable as comment.  
[524] In order to succeed on a defence of fair comment it is essential that the  
comment have a sufficient factual foundation. The facts on which the comment is  
based must be explicitly or implicitly indicated and sufficiently stated or so notorious  
as to be already understood by the audience. In Mainstream Canada v. Staniford,  
2013 BCCA 341, our Court of Appeal affirmed that not all facts need to be true but  
there must be enough true facts to establish a sufficient ‘factual substratum’:  
[24] In order for the defence of fair comment to succeed, it is necessary for  
the comment to have a factual foundation or factual substratum. The  
comment must be an expression of opinion on a known set of facts, and the  
audience must be in a position to assess or evaluate the comment. The  
rationale for this requirement was explained over a century ago in the South  
African case decided by the Transvaal Supreme Court in Roos v. Stent and  
Pretoria Printing Works, Ltd., 1909 T.S. 988 at 998 per Innes C.J.:  
But it is obvious that to entitle any publication to the benefit of this  
defence it must be clear to those who read it what the facts are and  
what comments are made upon them. And for two reasons. Because  
it is impossible to know whether the comments are fair unless we  
know what the facts are; and because the public must have an  
opportunity of judging the value of the comments.  
[25] In WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, Mr.  
Justice Binnie agreed with this Court that “a properly disclosed or sufficiently  
indicated (or so notorious as to be already understood by the audience)  
factual foundation is an important objective limit to the fair comment defence”  
(para. 34). He also stated, at para. 31:  
What is important is that the facts be sufficiently stated or otherwise  
be known to the listeners that listeners are able to make up their own  
minds on the merits of [the] comment.  
[525] Mr. Justice Binnie in WIC Radio SCC affirmed that a notorious factual  
foundation includes those facts that are already understood by the audience:  
Lougheed Estate v. Wilson  
Page 135  
[34] I agree with Southin J.A. that a properly disclosed or sufficiently indicated  
(or so notorious as to be already understood by the audience) factual  
foundation is an important objective limit to the fair comment defence, but the  
general facts giving rise to the dispute between Mair and Simpson were well  
known to Mair’s listening audience, and were referred to in part in the editorial  
itself. Simpson’s involvement in the Declaration of Family Values was familiar  
to Mair’s audience. Her repeated invitations to her followers to pick up the  
phone and call talk shows and politicians assured her views a measure of  
notoriety (Barltrop v. Canadian Broadcasting Corp. (1978), 25 N.S.R. (2d)  
637 (C.A.)). The respondent has offered no persuasive reason to justify the  
Court of Appeal’s interference with the trial judge’s conclusion that  
the defence has established that every element of the factual  
foundation was either stated or publicly known; that Mair was aware of  
them all; and that they were all substantially true in the sense that  
they were true in so far as they go to the pith and substance of the  
opinion Mair expressed. [para. 61]  
This provides a sufficient launching pad for the defence of fair comment.  
[Emphasis added.]  
[526] The following facts have been proven. These facts were either known to, and  
understood by, both Ms. Tyabji and Ms. O’Connor or were expressed or known  
implicitly to be facts that Ms. Tyabji was basing her opinion upon:  
a)  
b)  
There were infractions of the Canada Elections Act during Mr. Wilson’s  
campaign. This was a fact upon which Ms. Tyabji based her comment.  
While this was not specifically discussed, the evidence establishes that  
both Ms. O’Connor and Ms. Tyabji understood that there were  
allegations of irregularities in Mr. Wilson’s campaign financing.  
There were third party rent payments for the Sechelt campaign office.  
Although Mr. Wilson eventually reimbursed her, it is true that Norma  
made the rent payments his behalf. This transaction contravened the  
provisions of the Canada Elections Act because the rent expense was  
paid by someone other than the official agent and was incurred by  
Mr. Wilson before the appointment of his official agent.  
c)  
The executive of the Powel River Riding Association resigned because  
they had lost confidence in Mr. Wilson.  
Lougheed Estate v. Wilson  
Page 136  
d)  
Mr. Wilson was generally inattentive to the Riding after the 2006  
election. He did not return telephone calls. The constituency office in  
Powell River was locked and the lights were off. Ms. Tyabji’s evidence,  
which I accept, was that there had been delay associated with the  
payment of his constituency assistant and the rent for his constituency  
office in Powell River.  
[527] Some of the facts, such as the alleged forgery, that Ms. Tyabji stated she  
relied on in forming her opinion have been proven to not be true or remain unproven.  
However, not all facts need to be proven. The failure to prove all the facts does not  
necessarily defeat the plea of fair comment. Even if one of several facts is found to  
be justified, that one fact may be sufficient to support the comment as fair: Vander  
Zalm v. Times Publishers et al (1980), 18 B.C.L.R. 210 (C.A.) at page 231; WIC  
Radio BCSC at paras. 56-60.  
[528] Lord Porter observations in Kensley v. Fact, [1952] 1 All E.R. 501 (H.L.), are  
apposite:  
Twenty facts might be given in the particulars and only one justified, yet if that  
one was fact was sufficient to support the comment so as to make it fair, a  
failure to prove the other nineteen would not have of necessity defeat the  
respondents’ plea.  
[529] I find that there is a sufficient factual foundation that was true and was stated  
or otherwise known by Ms. O’Connor such that she could make up her own mind on  
the merits of Ms. Tyabji’s comments.  
[530] Finally, Ms. Tyabji’s comments satisfy the objective test: it could be an  
honestly expressed opinion on the proved facts. In any case, I find Ms. Tyabji  
honestly held the opinion that she expressed. Ms. Tyabji was vigorously cross-  
examined at trial. Her evidence that she had an honest belief in the opinions she  
expressed was unshaken on cross-examination.  
[531] In my view, Ms. Tyabji’s published opinions fall squarely within the ambit of  
political discourse in a democratic society. Her contention that Mr. Wilson was unfit  
Lougheed Estate v. Wilson  
Page 137  
for public office is a matter of public interest and an opinion that she was entitled to  
freely express.  
[532] The Court’s observations in Grant are apt in these circumstances:  
[42] Freedom of expression and respect for vigorous debate on matters of  
public interest have long been seen as fundamental to Canadian democracy.  
Many years before the Charter this Court, in the Reference re Alberta  
Statutes, [1938] S.C.R. 100, per Duff C.J., suggested that the Canadian  
Constitution contained an implied right of free expression on political matters.  
That principle, affirmed in cases like Saumur v. City of Quebec, [1953] 2  
S.C.R. 299, and Switzman v. Elbling, [1957] S.C.R. 285, has stood the test of  
time.  
…
[48] First and foremost, free expression is essential to the proper functioning  
of democratic governance. As Rand J. put it, “government by the free public  
opinion of an open society . . . demands the condition of a virtually  
unobstructed access to and diffusion of ideas”: Switzman, at p. 306.  
[533] In the result, having satisfied the four requisite elements of fair comment  
Ms. Tyabji succeeds on the defence. I conclude that, subject to any finding of actual  
or express malice, Ms. Tyabji is not liable for her comments to Ms. O’Connor.  
Malice  
[534] Both the defences advanced by Ms. Tyabji - fair comment and qualified  
privilege - can be defeated by establishing that the dominant purpose of the  
communications was malice. I must find Ms. Tyabji was actuated by express malice.  
Malice in this sense must be differentiated from the legal malice assumed by the  
publication of the defamatory comments: Smith v. Cross at para. 30.  
[535] Mr. Wilson alleges that Ms. Tyabji’s dominant purpose was to injure his  
reputation because of spite driven by political differences. Further and in the  
alternative, he contends that her dominant purpose in defaming him was the  
personal financial benefit that accrued to her by way of Mr. Lougheed‘s investment  
in Tugboat.  
[536] Neither contention is borne out of the evidence. I will address each in turn.  
 
Lougheed Estate v. Wilson  
Page 138  
[537] First, Mr. Blair Wilson argues that Ms. Tyabji’s statements were “done for the  
purposes of achieving political gain”. However, he never articulates what “political  
gain” Ms. Tyabji could have been seeking. Before Mr. Wilson’s nomination as the  
Liberal candidate for election, she supported another candidate but, as matters  
evolved Ms. Tyabji expended considerable effort to support and assist Mr. Wilson.  
She had worked to find suitable offices and staff, conveyed to Mr. Wilson the  
concerns of the Riding of which she had become apprised, provided him with a list  
of, and accompanied him to, a number of public engagements to help him regain  
support in the Riding, held a fundraiser for his campaign, and invited him and wife to  
dinner at her home.  
[538] In short, Mr. Wilson’s contention does not accord with the objective evidence  
in this case. I accept that Ms. Tyabji’s disillusionment with Mr. Wilson as the Member  
of Parliament in the Riding was genuine.  
[539] Second, Mr. Wilson advances vague assertions and innuendos in relation to  
Mr. Lougheed’s investment in Tugboat.  
[540] On October 12, 2007, William Lougheed through Norbill Investments, the  
investment company that he controls, purchased 53,923 shares in Tugboat  
Enterprises for $35,049.95. On November 3, 2007, he purchased a convertible  
debenture in Tugboat for $150,000.  
[541] Mr. Wilson asserts that Mr. Lougheed’s investment was made for the express  
purpose of Ms. Tyabji destroying his political career. It is Mr. Wilson’s position that  
“… Ms. Tyabji began making attempts to defame Mr. Wilson’s character in the press  
and in the Liberal Party immediately after she met with and accepted money from  
Mr. Lougheed, who made further payment to Ms. Tyabji’s company once Mr. Wilson  
had been removed from caucus. The timing speaks for itself”.  
[542] Ms. Tyabji emphatically denied this allegation. For the reasons that follow I  
accept her testimony and am not persuaded that Mr. Wilson’s contention of a quid  
pro quo is borne out by the evidence.  
Lougheed Estate v. Wilson  
Page 139  
[543] As a starting point, I note Mr. Wilson’s submission on this point is somewhat  
contradictory. On the one hand, Mr. Wilson alleges that Ms. Tyabji had been making  
efforts to remove him as a candidate since the fall of 2006. On the other hand,  
Mr. Wilson alleges that it was Mr. Lougheed’s investment in Tugboat that  
precipitated her communications to Mr. Marissen and Ms. O’Connor.  
[544] I found Gordon Wilson to be a credible witness and his evidence reliable.  
Mr. Wilson testified that at their first meeting, Gordon Wilson pressed him for an  
introduction to Bill Lougheed and became very angry when he refused. According to  
Gordon Wilson, he met with Mr. Wilson in 2007 to discuss issues in the Riding. The  
purpose of the meeting was not to procure any investment in Tugboat. Mr. Wilson  
candidly acknowledged that because Mr. Wilson presented himself as a financial  
expert he sought his views about the Tugboat debenture offering which Mr. Wilson  
dismissed out of hand. Gordon Wilson denied that he asked Mr. Wilson for an  
introduction to Mr. Lougheed and persuasively explained to the Court that he had  
known Mr. Lougheed since the 1980s when they were both involved in regional  
district matters. This is corroborated by Mr. Lougheed’s discovery evidence admitted  
at trial. I conclude that where Gordon Wilson's testimony conflicts with Mr. Wilson's  
his testimony is more credible and I accept it in preference to Mr. Wilson’s.  
[545] According to both Ms. Tyabji and Gordon Wilson, the investment in Tugboat  
was championed and advanced by their mutual friend Mr. Alexander, who had  
expressed an interest in investing in Tugboat a year prior to the date of the  
investment. In 2007, at Mr. Alexander’s instigation, and in his presence, Gordon  
Wilson and Ms. Tyabji met with Mr. Lougheed at his home in Pender Harbour to  
discuss the corporate offering for Tugboat. Some weeks later, Mr. Lougheed made  
his initial investment in Tugboat.  
[546] I accept Gordon Wilson’s contention that he had two separate meetings with  
Mr. Alexander: a brief meeting on his own to follow-up on the telephone call from  
John Reynolds and a subsequent meeting with his wife where they discussed  
Tugboat and met with Mr. Lougheed.  
Lougheed Estate v. Wilson  
Page 140  
[547] In Mr. Lougheed’s examination for discovery testimony that was read in at  
trial in Mr. Wilson’s case, he testified that he advanced funds solely for investment  
purposes and he expressly denied that there was any ulterior purpose or motive for  
the payments.  
[548] I accept Lynda Lougheed’s testimony that she had never seen or heard any  
evidence that would support the notion that Ms. Tyabji had been paid for expressing  
an opinion on Mr. Wilson.  
[549] Blair Wilson’s assertion of a causal connection is based solely on the timing  
of Mr. Lougheed’s investment. I adopt Mr. Justice Ehrcke observation in White v  
Stonestreet, 2006 BCSC 801:  
[74] The inference from a temporal sequence to a causal connection,  
however, is not always reliable. In fact, this form of reasoning so often results  
in false conclusions that logicians have given it a Latin name. It is sometimes  
referred to as the fallacy of post hoc ergo propter hoc: "after this therefore  
because of this."  
[550] Balancing the evidence as a whole, I cannot conclude that there was a nexus  
between the investment in Tugboat and Ms. Tyabji’s communications with either  
Ms. O’Connor or Mr. Marissen. This conclusion accords with the preponderance of  
the objective evidence. Notably, in so far as their business activities were  
concerned, Tugboat received National Research Council grants. The investment  
provided no preferential treatment for Mr. Lougheed in relation to other investors, the  
share certificates were issued and recorded in the share registry, and the convertible  
debenture was properly recorded and accounted for. The evidence discloses that  
the amount of the investment was not particularly significant given that the total  
investment from seventy-five shareholders in the company was approximately $3.8  
million.  
[551] I find that there is no evidentiary basis to support Mr. Wilson’s assertion that  
Tugboat was the corporate vehicle used to organize a negative publicity campaign  
against him. There is no cogent evidence that the funds from Mr. Lougheed’s  
investment were used for any purpose other than legitimate Tugboat business.  
Lougheed Estate v. Wilson  
Page 141  
[552] In summary, Mr. Wilson has not established the dominant purpose for  
Ms. Tyabji’s defamatory statements was to injure Mr. Wilson out of spite or ill-will or  
for any improper purpose. More particularly, Mr. Wilson has not proved on a balance  
of probabilities that Mr. Lougheed’s investment “was done for the express purpose of  
financing activities for furtherance of Mr. Lougheed’s wish to cause damage to Blair  
Wilson’s political career” as is alleged.  
[553] Finally, I am not persuaded that there is any merit to Mr. Wilson’s submission  
that Ms. Tyabji deliberately withheld production of emails in this litigation.  
[554] In summary, I am not persuaded that any of Ms. Tyabji’s communications with  
either Mr. Marissen or Mr. O’Connor were actuated by malice. The preponderance of  
the evidence does not support the suggestion of an improper purpose or motive.  
Conclusion: Claims against Ms. Tyabji  
[555] In the result, the defence of qualified privilege is a full answer to Mr. Wilson’s  
defamation claim regarding Ms. Tyabji’s communications with Mr. Marissen and fair  
comment a full answer to Mr. Wilson’s defamation claim regarding Ms. Tyabji’s  
communications with Ms. O’Connor.  
[556] The claim in defamation against Ms. Tyabji is accordingly dismissed.  
Claims against Tugboat  
[557] In para. 17 of the Counterclaim, Mr. Wilson alleges that Ms. Tyabji was acting  
on behalf of, and using the premises of, Tugboat when she contacted Mr. Marissen.  
At para. 26 he alleges that Ms. Tyabji and Tugboat prepared and published the  
Anonymous Letter. Finally, he contends that Tugboat’s actions were “malicious,  
scandalous, vexatious and done in a deliberate attempt to cause political and  
financial damage” to Blair Wilson.  
[558] None of these contentions are borne out by the evidence.  
   
Lougheed Estate v. Wilson  
Page 142  
[559] As I mentioned earlier, there is no cogent evidence that would support a  
finding that Tugboat had any involvement with the Anonymous Letter as is alleged  
by Mr. Wilson.  
[560] Further, the evidence does not support a finding that Ms. Tyabji was  
authorized or acting on behalf of or under the direction of Tugboat or using its  
premises when she spoke with either Mr. Marissen. The only evidence offered to  
support this assertion were a limited number of emails that were sent from  
Ms. Tyabji’s Tugboat email address. I accept Mr. Marissen’s evidence that many  
political volunteers operate “off the corner of their desk”. Ms. Tyabji testified that she  
attempted to keep her political electronic communication to her Gmail account but  
this practice was not always strictly adhered to. In any case, there is no evidentiary  
basis to find that Tugboat was aware of, directing or controlling the actions of  
Ms. Tyabji.  
[561] As our Court of Appeal stated in Brown v. Cole (1997), 61 B.C.L.R (3d) 1 at  
para. 74:  
It is not the law that A, who is an employer, is liable for all the misdeeds of B,  
who happens to be his employee. There are various ways of putting the  
extent of vicarious liability but in the case at bar, there was no plea to bring  
the doctrine of vicarious liability into play against the appellant company for  
whatever was said by the […] employees in question  
[562] For completeness, I add that Mr. Wilson has not proven that Tugboat’s  
actions were malicious.  
[563] In summary on this issue I find that on the totality of the evidence Mr. Wilson  
has not proven his claim against Tugboat. There is no principled basis to impose  
liability on Tugboat. Even if Ms. Tyabji were to be found liable for defamation there is  
no basis to impose liability upon Tugboat.  
[564] The claim against Tugboat is dismissed.  
Lougheed Estate v. Wilson  
William Lougheed  
Page 143  
[565] The defendant by counterclaim, William Lougheed, passed away on January  
21, 2016, the 31st day of trial. The Lougheed Defendants had not yet called any  
evidence. The Canwest Defendants had commenced calling evidence. None of the  
other defendants had closed their respective cases.  
[566] Mr. Wilson confirmed that he was not advancing a claim in defamation  
against Norbill Investments. By order of this Court pronounced on January 27, 2016,  
Balwinder Lougheed, Mr. Lougheed’s widow, was appointed, for the purposes of this  
litigation only, as litigation representative for the estate of Mr. Lougheed (“the  
Applicant”), and as litigation representative for the estate of Norma Lougheed,  
Deceased.  
[567] The Applicant brought an application on February 15 and 16, 2016 seeking  
an order that Mr. Wilson's case in defamation against Mr. Lougheed was  
extinguished by Mr. Lougheed's death. In a mid-trial ruling I allowed her application  
with reasons to follow. These are those reasons.  
The Applicant’s Position  
[568] The Applicant submits that, based on the common law doctrine of actio  
personalis moritur cum persona (“actio personalis”), or “a personal action dies with  
the person”, Mr. Wilson's defamation claim against Mr. Lougheed was extinguished  
by Mr. Lougheed’s death. She asserts that the common law rule that a tort action  
dies with the person to whom, or by whom, the wrong was done has not been  
abrogated by statute in B.C. in respect of actions in libel and slander. The  
interpretation of the provisions of the Wills and Estate Succession Act, S.B.C.  
2009, c.13 [the “WESA”], which came into force in British Columbia on March 31,  
2014, is key.  
Mr. Wilson's Position  
[569] Mr. Wilson counters with the submission that the application must be  
dismissed on a plain reading of the WESA. While acknowledging that a deceased  
     
Lougheed Estate v. Wilson  
Page 144  
plaintiff has no right to continue a defamation proceeding, he contends that on a  
proper statutory interpretation, the objective of s. 150 of the WESA is to allow a  
plaintiff to continue a proceeding against a deceased defendant. Mr. Wilson argues  
that if the Legislature had intended to extinguish defamation claims upon the death  
of a defendant, it specifically would have made s. 150(5) inapplicable to defamation  
actions.  
Legal Framework  
[570] It is helpful to begin with a review of the common law and statutory  
framework.  
English Law  
[571] In England, up until the 20th century, the estate of a deceased person could  
not sue or be sued for any tort committed against or by the deceased in his or her  
lifetime. In 1908, Melville Madison Biglow, in the Law of Torts, (Cambridge:  
Cambridge University Press, 1908) at 60, described the common law rule as follows:  
Actio personalis moritur cum persona. Expressing the rule in terms of Roman  
law, the courts have from early times declared that (most) torts cease, with  
the death of either of the parties to them, to carry liability. Both the origin and  
the justification of this rule are a matter of doubt; but no common law rule has  
been steadily maintained, except as statute has affected. It matters not that  
an action may already have been set on foot, the rule applies with absolute  
impartiality. [Emphasis added.]  
[572] In the early 20th century, the actio personalis rule, along with the related rule  
against damages for wrongful death, came under significant criticism in England as  
a result of the increase in motor vehicle accidents. By application of the rule, those  
injured by a negligent driver in an accident could only sue if the driver survived. If the  
driver died, the driver's estate and his or her insurer need not pay damages.  
Alternatively, if the negligent driver survived, he would be liable only if the injured  
party also survived. In response to these concerns, the English Parliament largely  
abolished the rule with the enactment of the Law Reform (Miscellaneous Provisions)  
Act, 1934, 24 & 25 Geo. V, c. 41. This legislation abolished the common law rule  
except for causes of action for defamation and a few other prescribed claims.  
   
Lougheed Estate v. Wilson  
Page 145  
[573] The current pertinent provision in the Administration of Justice Act, 1982  
c. 53, s. 75 and the Law Reform (Miscellaneous Provisions) Act, 1970 c. 33, sch.  
states:  
Effect of death on certain causes of action  
(1) Subject to the provisions of this section, on the death of any person after  
the commencement of this Act all causes of action subsisting against or  
vested in him shall survive against, or as the case may be, for the benefit of,  
his estate. Provided that this subsection shall not apply to causes of action for  
defamation… [Emphasis added.]  
[574] Since 1934, the actio personalis rule has continued to be applied in England  
in cases of defamation. In Smith v. Dha, [2013] EWHC 838 (Q.B.), Davies J. held  
that a cause of action in defamation abated on the date the plaintiff died even though  
the hearing of the matter had concluded and the judgment was reserved at the time  
the party died.  
[575] Similarly, in Ashley & Anor v. Chief Constable of Sussex Police, [2008] UKHL  
25, Lord Scott confirmed, at para. 28, that the Law Reform (Miscellaneous  
Provisions) Act, 1934 abolished much of the actio personalis rule, but that “a cause  
of action for defamation remains an exception and cannot survive the death of the  
alleged defamer or the defamed”.  
[576] In England, defamation is explicitly acknowledged as the “last relic” of the  
common law principle of actio personalis: Gatley on Libel and Slander, 10th ed.  
(London: Sweet Maxwell, 2004) at 8.12. Currently, at common law, an action in  
defamation abates with the death of the person defamed when the party dies before  
any verdict or judgment is pronounced. Moreover and crucially, an action for  
defamation also abates in the event of the death of the defendant: Gatley at 8.13.  
The Canadian Approach  
[577] The actio personalis doctrine was adopted into the law of this province in  
1858 by virtue of the English Law Act, R.S.B.C. 1948, c. 111: Pallot v. Douglas,  
2017 BCCA 254 at para. 17. Pursuant to s. 2 of the Law and Equity Act, R.S.B.C.  
 
Lougheed Estate v. Wilson  
Page 146  
1996, c. 23, the civil laws of England as they existed on November 19, 1858 remain  
in force in B.C., subject to any subsequent legislative modifications in B.C.  
[578] In Canada, the notion that an action in tort dies with the person was lamented  
as being irrational. This eventually resulted in the development of survival of actions  
legislation in various jurisdictions. Survival legislation however varies between  
Canadian jurisdictions, specifically with regard to what causes of action survive, and  
what damages are available: see Grant v. Winnipeg Regional Health Authority, 2015  
MBCA 44 at paras. 48-54.  
[579] There are two independent progenitors of the Canadian survival legislation:  
the Ontario legislation enacted in 1886, and the 1934 English legislation.  
[580] In Ontario, survival legislation was first introduced in the Statute Amendment  
Act, 1886, S.O. 1886, c. 16. Section 23 of that Act provided:  
23. Sections 8 and 9 of the Revised Statute respecting Trustees and  
Executors and the Administration of Estates are repealed, as regards torts,  
injuries and wrongs hereafter committed, and the following are substituted in  
respect of the said matters:  
8. The executors or administrators of any deceased person may maintain an  
action for all torts or injuries to the person or to the real or personal estate of  
the deceased, except in cases of libel and slander, in the same manner, and  
with the same rights and remedies as the deceased would, if living, have  
been entitled to do; and the damages when recovered shall form part of the  
personal estate of the deceased; but such action shall be brought within one  
year after his decease.  
9. In case any deceased person committed a wrong to another in respect of  
his person, or of his real or personal property, the person so wronged may  
maintain an action against the executors or administrators of the person who  
committed the wrong. This section does not apply to libel or slander.  
[Emphasis added.]  
[581] In Ontario, there have been numerous iterations of the legislation over the  
years. At present, the relevant provision is found in s. 38 of the Trustee Act, R.S.O.  
1990, c. T. 23:  
38(1) Actions by executors and administrators for torts  
Lougheed Estate v. Wilson  
Page 147  
Except in cases of libel and slander, the executor or administrator of any  
deceased person may maintain an action for all torts or injuries to the person  
or to the property of the deceased in the same manner and with the same  
rights and remedies as the deceased would, if living, have been entitled to  
do, and the damages when recovered shall form part of the personal estate  
of the deceased; but if death results from such injuries no damages shall be  
allowed for the death or for the loss of the expectation of life, but this proviso  
is not in derogation of any rights conferred by Part V of the Family Law Act.  
38(2) Actions against executors and administrators for torts  
Except in cases of libel and slander, if a deceased person committed or is by  
law liable for a wrong to another in respect of his or her person or to another  
person’s property, the person wronged may maintain an action against the  
executor or administrator of the person who committed or is by law liable for  
the wrong.  
[Emphasis added.]  
[582] Actions in defamation by and against a deceased person are also excluded  
from the operation of the survival legislation in Manitoba: Trustee Act, R.S.M. 1987,  
c. T160, s. 53, Newfoundland: Survival of Actions Act, R.S.N. 1990, c. S-32, s. 11,  
and the Northwest Territories: Trustee Act, R.S.N.W.T. 1988, c. T-8, s. 32.  
[583] Our Court of Appeal provided an overview of the development of the relevant  
legislation in British Columbia in M. (L.N.) v. Green (1995), 11 B.C.L.R. (3d) 374  
(C.A.). Writing for the court, Madam Justice Southin described the common law rule  
of actio personalis as follows:  
The common law rule is discussed in Broom's Legal Maxims, 10th ed.  
(London: Sweet & Maxwell, 1939) at pp. 611 et seq., in terms which I do not  
understand ever to have been questioned:  
It is to actions in form ex delicto that the maxim, actio personalis  
moritur cum persona, was peculiarly applicable, and, in a few cases,  
still applies; for, as Lord Abinger observed [In Raymond v. Fitch, 2 Cr.  
M. & R. 588, at p. 597], this maxim "is not applied in the old authorities  
to causes of actions on contracts, but to those in tort, which are  
founded on malfeasance or misfeasance to the person or property of  
another: which latter are annexed to the person, and die with the  
person, except where the remedy is given to (or by) the personal  
representatives by the statute law." And the general rule of the  
common law was, that if an injury were done either to the person or to  
the property of another for which unliquidated damages only could be  
recovered in satisfaction, the action died with the person to whom, or  
by whom, the wrong was done [Wheatley v. Lane, 1 Wms. Saund.  
(ed. 1845) 216 a, n. (1)].  
Lougheed Estate v. Wilson  
Page 148  
[Emphasis added.]  
[584] Madam Justice Southin observed that in B.C. various statutory exceptions  
were made to the general rule. She traced back the pertinent legislation to the  
amendment of the Administration Act, R.S.B.C. 1897, c. 73.  
[585] Section 2 of the Administration Act AmendmentAct, S.B.C. 1934. c. 2  
enacted the following new provisions:  
71. (1.) This section shall not apply in respect of an action of libel or slander,  
nor shall it apply in respect of any tort or injury occurring before the time of its  
enactment.  
…
(3.) In the case of any tort or injury to person or property, if the person who  
committed the wrong dies, the person wronged, or, in case of his death, his  
executor or administrator, may bring and maintain an action against the  
executor or administrator of the deceased person who committed the wrong,  
and the damages and costs recovered in the action shall be payable out of  
the estate of the deceased in like order of administration as the simple  
contract debts of the deceased. The following provisions shall apply in  
respect of actions within the scope of this subsection: ...  
[Emphasis added.]  
[586] The purpose of this provision was to provide a mechanism by which the rule  
would cease to have effect, whether the person who died was a tortfeasor or a victim  
of a tort. It is not certain what precipitated this amendment. Although it was  
introduced in the same year as the English legislation (Law Reform (Miscellaneous  
Provisions) Act, 1934) it was considerably different in form: Charlton v. Co-  
operators., 1999 BCCA 0035 at para. 54. The B.C. legislation more closely reflects  
the Ontario legislation: M. (L.N.) at para. 22.  
[587] In Cairney v. MacQueen, [1956] S.C.R. 555, Mr. Justice Cartwright  
(dissenting on another point in a wrongful death case) summarized the effect of the  
B.C.1934 legislation at 575:  
… the passing of the Administration Act Amendment Act, 1934, Statutes of  
British Columbia, 1934, c. 2 s. 2, brought about, except in cases of  
defamation, the virtual abolition in British Columbia, of the maxim actio  
personalis moritur cum persona. [Emphasis added.]  
Lougheed Estate v. Wilson  
Page 149  
[588] In M. (L.N.) Madam Justice Southin described the legislation through its  
further iterations through to the Estate Administration Act, R.S.B.C. 1979, c. 114.  
The result in M.(L.N.) v. Green turned on procedural grounds and is not apposite to  
this case. The crucial point is that our Court of Appeal cited with approval Dos  
Remedios v. Morey et al. (1966), 57 D.L.R. (2d) 550, in which our Court of Appeal,  
at para. 7, affirmed that, in British Columbia, a tort action died with the person by  
whom the wrong was done unless that general rule was otherwise modified by  
statute. See also Kirk v. Lee, [1934] 3 D.L.R. 373at 378-379; Battrum v. McKenzie,  
2001 BCSC 1309.  
[589] The pertinent survival legislation in B.C. was subsequently revised and  
replaced with the Estate Administration Act, R.S.B.C. 1996, c. 122. Sections 59 and  
60 pertained to actions for wrongs done to or by a deceased person, and actions in  
which a deceased person is named as a defendant.  
Law in British Columbia prior to enactment of the WESA  
[590] The pertinent provision of s. 59 of the Estate Administration Act stated:  
Actions for wrongs done to or by deceased  
59 (1) This section and sections 60 and 61 do not apply  
(a) in respect to an action of libel or slander, or  
(b) in respect of loss or damage that occurred before March 29, 1934.  
…
(6) If a person alleges that the person has suffered loss or damage by the  
fault of another and the person alleged to be at fault dies, the person  
wronged may  
(a) continue against the executor or administrator of the deceased any  
action on that account pending against the deceased at the time of  
the deceased's death, or  
(b) within the time otherwise limited for the action, bring an action for  
the loss or damage, naming as defendant in it  
(i) the executor or administrator of the estate of the deceased,  
or  
(ii) the deceased.  
 
Lougheed Estate v. Wilson  
Page 150  
[591] In Charlton, our Court of Appeal, in considering the scope and applicability of  
s. 59 of the Estate Administration Act, recognized at para. 44 that the common law  
maxim of actio personalis applies to the death of the plaintiff and the death of the  
defendant. The court affirmed that s. 59 conferred rights to continue and maintain  
the action in tort when no action could be brought or continued at common law.  
Crucially, however, action for libel and slander were expressly excluded from the  
ambit of s. 59.  
[592] In Wilson v. Switlo, a defendant, Mr. John Wilson Senior, died during the  
course of the litigation. The Court stated as follows at para. 3:  
The defendant John Wilson Sr. died during the litigation. As a result, pursuant  
to s. 59 of the Estate Administration Act, R.S.B.C. 1996, c. 122, neither a  
claim nor a defence founded in libel or slander survive his death.  
[593] On a plain reading of s. 59, a claim founded in libel or slander did not survive  
the death of a defendant. To the extent Mr. Wilson asserts otherwise, I find his  
submissions without merit.  
Relevant WESA provisions  
[594] As I mentioned, effective March 31, 2014, a new legislative scheme  
governing wills and estate law in British Columbia came into force under the WESA.  
The Estate Administration Act was repealed.  
[595] The key provision of the WESA for the purposes of this case is s. 150 which  
provides:  
150. Proceedings by and against estate  
150(1) Subject to this section, a cause of action or a proceeding is not  
annulled by reasons only of the death of  
(a) a person who had the cause of action, or  
(b) a person who is or may be named as a party to the proceeding.  
150(2) Subject to this section, the personal representative of a deceased  
person may commence or continue a proceeding the deceased person could  
have commenced or continued, with the same rights and remedies to which  
the deceased person would have been entitled, if living.  
 
Lougheed Estate v. Wilson  
Page 151  
150(3) Subsections (1) and (2) do not apply to a proceeding for libel or  
slander or a proceeding under section 1 [violation of privacy actionable] or 3  
[unauthorized use of name or portrait of another] of the Privacy Act.  
150(4) Recovery in a proceeding under subsection (2) does not extend to  
(a) damages in respect of non-pecuniary loss, or  
(b) damages for loss of future income for a period following death.  
150(5) A person may commence or continue a proceeding against a  
deceased person that could have been commenced or continued against the  
deceased person if living, whether or not a personal representative has been  
appointed for the deceased person.  
…
[Emphasis added.]  
Discussion  
[596] The Supreme Court of Canada distilled the modern approach to statutory  
interpretation in Canada (Information Commissioner) v. Canada (Minister of National  
Defence), 2011 SCC 25:  
[27] The proper approach to statutory interpretation has been articulated  
repeatedly and is now well entrenched. The goal is to determine the intention  
of [the Legislature] by reading the words of the provision, in context and in  
their grammatical and ordinary sense, harmoniously with the scheme of the  
Act and the object of the statute. In addition to this general roadmap, a  
number of specific rules of construction may serve as useful guideposts on  
the court’s interpretative journey. …  
[597] Taken in isolation, the words used in s. 150(5) could support the interpretation  
advanced by Mr. Wilson. However, I conclude that when the words are read in  
context, harmoniously with the scheme of s. 150 of the WESA and the intention of  
the Legislature, Mr. Wilson’s interpretation cannot prevail. My reasons for that  
conclusion follow.  
[598] The first step in the analysis is to refer to the basic principles of statutory  
interpretation and to identify the scheme and purpose of s. 150 of the WESA. It is  
well established that the paramount principle of statutory interpretation is that a  
legislative provision should be construed in a way that best furthers its objects.  
 
Lougheed Estate v. Wilson  
Page 152  
[599] The objective of the WESA was to modernize the fragmented wills, estates,  
and succession laws, to streamline probate and estate litigation procedures and to  
consolidate the majority of the law into a single statute.  
[600] Applying established interpretive principles I find that:  
(i)  
A broad, contextual and purposive interpretation of s. 150 supports the  
conclusion that the common law doctrine of actio personalis, whereby  
a cause of action in tort did not survive the death of either an injured  
person or the wrongdoer, is abrogated except for actions in defamation  
and the Privacy Act, R.S.B.C. 1996, c. 373.  
(ii)  
Section 150(3) is a key substantive provision. By operation of s. 150(3)  
the abrogation of the common law actio personalis set out in s. 150(1)  
expressly does not apply to proceedings for libel and slander. The  
common law is accordingly preserved for any actions for libel and  
slander.  
If, as submitted by Mr. Wilson, s. 150(5) permits any action to proceed  
despite the death of the defendant, then s.150(1)(b), as qualified by  
s. 150(3) would be redundant.  
(iii)  
Subsections 150(2) and (4) relate to the death of the plaintiff. These  
are both substantive provisions. These provisions permit the personal  
representative, a distinct legal entity from the deceased, a cause of  
action that the deceased would otherwise have had if he or she had  
not died. However, pursuant to s. 150(4) the personal representative’s  
entitlement to recovery of damages is more limited in scope than what  
the deceased would have been entitled to claim had he or she not  
died.  
(iv)  
The balance of the provisions in s. 150(5) to 150(8) all relate to  
proceedings against a deceased person.  
Lougheed Estate v. Wilson  
Page 153  
The purpose of subsection 150(5) is clearly procedural. It authorizes  
the commencement or continuation of a proceeding against a  
deceased person, even if a personal representative has not yet been  
appointed. Subsection 150(5) must be read in the context that actions  
in libel and slander do not survive the death of the wrongdoer. The  
specific provision of s. 150(3) prevails over the general provision of  
subsection 150(5). The clear intent of the subsection is that  
proceedings, that are otherwise permitted, can be commenced or  
continued against a deceased defendant in the absence of the  
appointment of a personal representative.  
(v)  
The presumption of internal coherence of a statute is important when  
interpreting a legislative regime. The principles of interpretation  
mandate that statutory provisions dealing with the same subject matter  
should be read together where possible to avoid conflict. Statutory  
provisions are presumed to work together to form a rational and  
internally consistent framework: Assessor of Areas #20 and #23 v.  
Interior Health Authority, 2006 BCSC 930 at para. 23.  
(vi)  
As a matter of construction, legislation is presumed to leave the  
common law intact absent express language to contrary H.C.F. v.  
D.T.F., 2017 BCSC 1226 at para. 159. As a general rule, the  
Legislature is presumed not to depart from prevailing law “without  
expressing its intention to do so with irresistible clearness”: Goodyear  
Tire and Rubber Co. of Canada Ltd. et al. v. T. Eaton Co. Ltd. et al.,  
[1956] S.C.R. 610; at p. 614; Rawluk v. Rawluk, [1990] 1 S.C.R. 70;  
V.J.F. v. S.K.W., 2016 BCCA 186 at para. 71. As I referred to earlier,  
prior to the enactment of the WESA, pursuant to s. 59 of the Estate  
Administration Act, actions in defamation clearly were excluded from  
the survival legislation. Had the Legislature intended to abolish the  
common law doctrine of actio personalis as it relates to the death of a  
Lougheed Estate v. Wilson  
Page 154  
wrongdoer in a proceeding for libel and slander it would have done so  
clearly by limiting the application of s. 150(3) to subsection (1)(a).  
(vii)  
It is important to appreciate the context of the new legislation.  
The courts in B.C. had held that under the Estate Administration Act an  
action in tort was “suspended” on the death of a defendant until such  
time was a personal representative had been appointed: M. (L.N.) at  
para. 30; Battrum. Subsection 150(5) of the WESA eliminates any such  
procedural irregularity.  
Subsection 150(5) also eliminates any ambiguity on procedural matters  
that previously existed relative to non-tort claims. Both parties referred  
to the report of the British Columbia Law Institute, “Wills Estates and  
Succession: A Modern Legal Framework,” in the B.C.L.I. Report No. 45  
(B.C.: 2006), (the “Report”). The Report noted at page 248 that s. 134  
of the draft legislation (which was virtually identical to s. 150 that was  
eventually enacted) is “largely reflecting existing law” but removes an  
ambiguity that springs from s. 59(6) of the Estate Administration Act:  
whether an action may be commenced against an estate for non-  
tortious cause of action if no personal representative has been  
appointed. However, the Report expressly confirms that s. 150 carried  
forward the present law and that any change in the law of defamation  
was considered to be outside the scope of the Succession Law Reform  
Project.  
The traditional view was that it was permissible for the court to  
consider commission reports to discover the mischief at which  
legislation is aimed, or the conditions to which it responds, but reports  
could not be looked at as direct evidence of legislative meaning or  
purpose: Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed  
(Markham, ON: LexisNexis, 2008) at 574-575. However, the modern  
judicial view is that commission reports are admissible as evidence of  
Lougheed Estate v. Wilson  
Page 155  
context, legislative purpose and textual meaning: Diamond Estate v.  
Robbins, 2006 NLCA 1 at para. 62.  
[601] Mr. Wilson also relies on the presumption that the Legislature does not intend  
to abolish or interfere with substantive rights: Berardinelli v. Ontario Housing Corp.,  
[1979] 1 S.C.R. 275.  
[602] The fatal flaw in this submission is that Mr. Wilson had no right at common  
law to continue the action against Mr. Lougheed after his death. The Legislature did  
not interfere, limit, or abolish any rights of Mr. Wilson at common law. By operation  
of the common law, any right of action in defamation that previously could have been  
enforced or defended by the parties, if living, is annulled on the death of either party.  
The intent of the survival legislation is to confer statutory rights to continue actions in  
tort after the death of the injured person or the wrongdoer. Crucially, defamation  
actions are expressly excluded from survival legislation in this province.  
[603] The legislative history of the WESA provides additional support for the  
interpretation advanced by the applicant. In Dagg v. Canada (Minister of Finance),  
[1997] 2 S.C.R. 403 at para. 49 the Supreme Court of Canada endorsed the notion  
that evidence of a statute’s history, including excerpts from Hansard, is admissible  
as relevant to the background and purpose of the legislation, provided, of course,  
that the court approaches the evidence cautiously and remains mindful of its limited  
reliability and weight: R. v. Morgentaler, [1993] 3 S.C.R. 463 at p. 483-85; Jiang v.  
Peoples Trust Company, 2017 BCCA 119 at para. 50.  
[604] In the Hansard Record, First Session, 39th Parliament (2009), vol. 3, No. 4,  
page 783, in reference to discussion of the new section 150, the Honourable M. de  
Jong stated:  
… This act and this section do not purport to alter, though - or, well, change -  
what is presently the law and set out in the Estate Administration Act.  
[605] It bears repetition that pursuant to the Estate Administration Act actions in  
libel and slander were expressly excluded from the survival legislation.  
Lougheed Estate v. Wilson  
Page 156  
[606] I have not overlooked Mr. Wilson’s submissions with respect to claims  
brought under the Privacy Act, R.S.B.C. 1996, c. 373. However, it is not necessary  
for purposes of this case to decide whether a claim under the Privacy Act would  
survive the death of the wrongdoer. Accordingly, I decline any comment on the  
issue.  
[607] In summary, after considering the entire context of s. 150 and reading it in its  
grammatical and ordinary sense in harmony with the scheme of the WESA, I  
conclude the interpretation advanced by Mr. Wilson cannot prevail. The object of  
s. 150 is to abrogate the common law and to permit causes of action in tort to be  
pursued despite the death of either party. However, as did the Estate Administration  
Act, the WESA preserves the common law for actions in libel and slander.  
Accordingly, such actions do not survive the death of either the claimant or the  
wrongdoer. The object of section 150(5) is to permit those actions that survive  
against a deceased person to be commenced or continued irrespective as to  
whether a personal representative has been appointed.  
[608] Accordingly, I conclude that the action in defamation against Mr. Lougheed  
did not survive his death.  
[609] I do not interpret Mr. Wilson’s pleadings as advancing a claim in defamation  
against Mr. Lougheed in his representative capacity as executor of his wife’s will. For  
completeness, however, I add that any claim in defamation against Mr. Lougheed in  
his representative capacity is dismissed. If Mr. Lougheed defamed Mr. Wilson, the  
evidence does not establish that he was acting within the role of executor when he  
did so. To the extent Mr. Lougheed incurred any liability, it was personal.  
[610] Finally, Mr. Wilson confirmed that he was not pursuing a defamation claim  
against Norbill Investments.  
Summary of Conclusions on Defamation Claim  
[611] In summary, my conclusions are as follows:  
 
Lougheed Estate v. Wilson  
Page 157  
(i)  
the Canwest defendants are liable for the publication of the statements  
in the Article that pertain to the deathbed loan; the other claims  
advanced against the Canwest defendants are dismissed;  
(ii)  
Mr. Janke is liable for the publication of the Anonymous Letter on his  
blog;  
(iii)  
(iv)  
the claims against Ms. Tyabji and Tugboat are dismissed; and  
the claim in defamation against Mr. Lougheed did not survive his  
death.  
DAMAGES  
[612] Damages are awarded to compensate the plaintiff for the harm to his or her  
reputation caused by publication of the defamatory statement. The objective of a  
damage award for defamation is vindication of a plaintiff’s reputation and to  
compensate a plaintiff for the unjustified injury to his or her self-worth and dignity:  
Weaver at para. 62.  
[613] General damages are presumed from the publication of a defamatory  
statement and need not be established by proof of actual loss and are assessed at  
large in light of the circumstances of the case: Hill v. Church of Scientology of  
Toronto, [1995] 2 S.C.R. 1130 at para. 164. Aggravated damages may be awarded  
where the plaintiff proves malice on the part of the defendant, and punitive damages  
where the degree of misconduct is so substantial that it offends the court’s sense of  
decency.  
[614] I will next set out the legal principles applicable to each category of damages.  
Legal Framework  
General Damages  
[615] As explained in Church of Scientology at para. 187, the assessment of  
damages flows from the particular confluence of the following elements in a given  
     
Lougheed Estate v. Wilson  
Page 158  
case: 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.  
[616] A similar list of relevant factors was identified in Leenen v. Canadian  
Broadcasting Corp. (2000), 48 O.R. (3d) 656 (Ont. S.C.J.) at para. 205, aff'd (2001),  
54 O.R. (3d) 612 (Ont. C.A.), leave to appeal ref’d, [2001] S.C.C.A. No. 432:  
a)  
b)  
c)  
d)  
e)  
the seriousness of the defamatory statement;  
the identity of the accuser;  
the breadth of the distribution of the publication of the libel;  
republication of the libel;  
the failure to give the audience both sides of the picture and not  
presenting a balanced view;  
f)  
the desire to increase one's professional reputation or to increase  
ratings of a particular program;  
g)  
the conduct of the defendant and defendant's counsel through to the  
end of trial;  
h)  
i)  
the absence or refusal of any retraction or apology; and  
the failure to establish a plea of justification.  
[617] The nature and character of the defamatory statement, the circumstances  
under which it was made and the extent to which it was disseminated may either  
enhance or reduce the damages awarded. A court may take into account the tone,  
language, content and gravity of the false statement, and the extent to which the  
defendant has sensationalized the statement: Reichmann v. Berlin, [2002] O.J.  
No. 2732 (Ont. S.C.J.) at para. 8. Ordinarily, the more widespread the publication,  
the larger the award of damages: Reichmann at para. 9.  
Lougheed Estate v. Wilson  
Page 159  
[618] The Court in Vogel v. Canadian Broadcasting Corp., [1982] 3 W.W.R. 97  
(B.C.S.C.) observed that defamation based upon a distorted version of the facts may  
be more damaging than a reference that is entirely made up. As Esson J. reasoned  
(at para. 262):  
If a flat denial will meet the case, the victim has some hope of influencing  
public opinion in his favour. Where he has to say that "it didn't happen that  
way", and then go on to try to explain how it did happen, that effort is unlikely  
to have much effect. The media, through which the explanation must be  
made, has a natural predilection for excitement, and is therefore not inclined  
to give much emphasis to explanations which by their nature tend to be dull  
and which, if accepted, have the effect of proving that there was no  
wrongdoing, and therefore no story.  
[619] In the internet context, the mode and extent of publication must be considered  
with particular care: Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416  
(C.A.) at para. 31, 239 D.L.R. (4th) 577. The Court described the internet as  
“instantaneous, seamless, interactive, blunt, borderless and far reaching” (Barrick  
Gold Corp. at para. 31), and said that “its interactive nature, its potential for being  
taken at face value, and its absolute and immediate worldwide ubiquity and  
accessibility” gave it greater potential than other media of communication to damage  
people’s reputations: Barrick Gold Corp. at para. 34.  
[620] Nevertheless, where there is limited access to the website that published the  
defamatory statement and no evidence to show that the publications were being  
replicated throughout the internet, there is less likelihood that the damages will be as  
serious: Wilson v. Switlo, at paras. 502-503:  
[502] The plaintiffs in addressing the issue of damages make specific mention  
of publication through the Internet. In my view, the Internet is simply another  
medium for publication, albeit one with the potential to be far more ubiquitous  
and accessible than other forms. Although it has the potential to increase  
damage awards significantly, this is not the inevitable effect of such  
publication.  
[503] In the case at bar, the publications though made available on the  
Internet were "broadcast" to a limited audience. The "absolute and immediate  
worldwide ubiquity and accessibility" noted in Barrick was not necessarily  
present to the same degree here. Presumably, potential readers of the  
publications would have had to access the [British Columbia Utilities  
Commission] site to read the material in the first place. This is a far cry from  
publication of defamatory material on a frequently assessed internet message  
Lougheed Estate v. Wilson  
Page 160  
board, as in Barrick. There was no evidence that the publications were being  
replicated throughout the Internet.  
[621] The reputation, prominence and professional standing of the plaintiff are  
important factors in the assessment of damages. Thus, in Church of Scientology for  
example, the Court found the vital importance of reputation to a lawyer to be a  
significant factor in its assessment. Numerous authorities have recognized the  
particular vulnerability of persons holding elected office to charges against their  
reputation and character given that their positions depend on the confidence of  
those who voted for them: see, for example, Lawson v. Burns, [1975] 1 W.W.R. 171  
(B.C.S.C.) at para. 53, and Snyder v. Montreal Gazette Ltd. (1978), 87 D.L.R. (3d) 5  
(Que. S.C.) at para. 41.  
[622] The influence and reputation of the defendant is also relevant to the  
assessment of damages since the impact of the defamatory statement will depend  
on the status of the speaker. An accusation from a media source of impeccable  
credentials and prestige in the community is more serious due to the aura of  
credibility it lends the defamatory statement: Myers v. Canadian Broadcasting Corp.  
(1999), 47 C.C.L.T. (2d) 272 (Ont. S.C.J.) at para. 159, citing Vogel v. Canadian  
Broadcasting Corp., [1982] 3 W.W.R. 97 (B.C.S.C.); Church of Scientology at  
para. 184.  
[623] Whether the defendant has retracted and apologized for the defamatory  
statement will also be taken into account in the assessment of damages: Church of  
Scientology at para. 182. As the authors of Gatley on Libel and Slander, 12th ed.  
(Thomson Reuters (Professional) UK Limited, 2013) state at para. 33.55, the prompt  
offer of a sincere apology may have a substantial mitigating effect on damages.  
[624] An apology will almost always include a retraction or withdrawal of the  
defamatory statement. However, a retraction on its own, or any form of correction  
without an apology, may nonetheless qualify as some measure of mitigation: Gatley  
on Libel and Slander, 12th ed., at para. 33.56. Professor Brown similarly observes  
Lougheed Estate v. Wilson  
Page 161  
that a correction may be offered to mitigate damages if it is inserted shortly after the  
objectionable article: Brown at 25-270.  
[625] Professor Brown says the following with respect to how an apology or  
retraction may inform the assessment of damage: Brown at 25-264:  
An apology or retraction is a significant matter to be taken into consideration  
in assessing damages and particularly the level of damages. However, the  
apology or retraction must represent an honest attempt to make amends and  
be full, frank and unequivocal, made promptly, and given the same  
prominence as the defamatory material. A retraction accompanied by an  
apology and an admission of falsity and given the same publicity as the  
original defamation will have a much greater mitigating effect than an apology  
extracted after endless vacillation. If it is made only after an action has been  
commenced by the plaintiff, it may have little or no effect in mitigating  
damages, particularly where a last minute apology occurs only after a long  
and truculent conduct of the litigation by the defendant. It must not be  
“doubting and querulous”, “half-hearted and ineffectual”, or “contain lurking  
insinuations or hesitant withdrawals.” It must represent an honest effort to  
repair the wrong and “be worded so that ‘an impartial person would consider  
it reasonably satisfactory in all the circumstances’”. An apology or retraction  
that is guarded, reluctant or half-hearted, or which appears to be made only  
to escape from liability and not repair the wrong, will be of little value in  
mitigating damages. Its effectiveness will depend upon how comprehensive it  
is. “The test is whether a reasonable person to whom the apology was  
published would understand it to be a sufficiently complete and unqualified  
apology so as to be reasonably satisfactory in all the circumstances.” If the  
apology is genuine, it may be considered in mitigation of damages even if it is  
not approved by the plaintiff, and does not address all of the plaintiff’s  
complaints.  
[Citations omitted.]  
[626] Because justification is a complete defence to an action for defamation,  
damages will be reduced accordingly where the court is satisfied the allegations  
were at least partially true. It is therefore necessary to isolate the defamatory  
statements from the true aspects of the publication, as the truthful comments may  
themselves account for some or all of the losses suffered: P.G. Restaurant Ltd. v.  
Cariboo Press (1969) Ltd., 2005 BCCA 210 at paras. 57-59.  
[627] The fact that a defamatory statement has previously been circulated by others  
does not make it any less defamatory. The same or similar defamatory statements  
published elsewhere do not reduce the amount of compensatory damages. Were it  
Lougheed Estate v. Wilson  
Page 162  
otherwise, the person defamed might never recover the full amount of the damage  
done to his reputation: Associated Newspapers v. Dingle, [1964] A.C. 371 at 396  
(H.L.).  
Aggravated Damages  
[628] Aggravated damages may be awarded in circumstances where the  
defendant’s conduct has been particularly high-handed or oppressive, thereby  
increasing the plaintiff’s humiliation and anxiety arising from the defamatory  
statement: Church of Scientology at para. 188. In order to award aggravated  
damages, the court must find that the defendant was motivated by actual malice,  
which increased the injury to the plaintiff, either by spreading further afield the  
damage to the reputation of the plaintiff or by increasing the mental distress and  
humiliation of the plaintiff: Church of Scientology at para. 190.  
[629] The Court explained that malice may be established by intrinsic evidence  
derived from the defamatory statement itself and the circumstances of its  
publication, or by extrinsic evidence pertaining to the surrounding circumstances  
which demonstrate that the defendant was motivated by an unjustifiable intention to  
injure the plaintiff. It continued: Church of Scientology at para. 191:  
There are a number of factors that a jury may properly take into account in  
assessing aggravated damages. For example, was there a withdrawal of the  
libellous statement made by the defendants and an apology tendered? If  
there was, this may go far to establishing that there was no malicious conduct  
on the part of the defendant warranting an award of aggravated damages.  
The jury may also consider whether there was a repetition of the libel,  
conduct that was calculated to deter the plaintiff from proceeding with the libel  
action, a prolonged and hostile cross-examination of the plaintiff or a plea of  
justification which the defendant knew was bound to fail. The general manner  
in which the defendant presented its case is also relevant. Further, it is  
appropriate for a jury to consider the conduct of the defendant at the time of  
the publication of the libel. For example, was it clearly aimed at obtaining the  
widest possible publicity in circumstances that were the most adverse  
possible to the plaintiff?  
Punitive Damages  
[630] Punitive damages may be awarded in situations where the defendant’s  
misconduct is so malicious, oppressive and high-handed that it offends the court’s  
   
Lougheed Estate v. Wilson  
Page 163  
sense of decency. The objective is not to compensate the plaintiff but, rather, to  
punish the defendant. Punitive damages should only be awarded in those  
circumstances where the combined award of general and aggravated damages  
would be insufficient to achieve the goal of punishment and deterrence: Church of  
Scientology at para. 196.  
[631] Unlike compensatory damages, punitive damages are not at large. The  
essential question for the court is whether the conduct of the defendant was so  
outrageous that punitive damages are rationally required to act as a deterrent (at  
para. 197).  
Overview of Mr. Wilson’s Position of Damages  
[632] Mr. Wilson claims general, aggravated and punitive damages.  
[633] Given what he characterizes as the uniquely devastating nature and impact of  
the defamation in this case, Mr. Wilson asserts that he is entitled to a  
correspondingly “unprecedented and uniquely high” general damages award of  
$5,000,000. Although Mr. Wilson claims special damages in his pleadings his  
counsel indicated that he was not pursuing such a claim. His counsel initially  
characterized Mr. Wilson’s claim for loss of income and pension benefits as a  
Member of Parliament as a claim for special damages. However, he ultimately took  
the position that this aspect of Mr. Wilson’s claim was encompassed in his claim for  
general damages. He did not make any specific submissions as to how the Court  
might assess this aspect of his claim. Finally, Mr. Wilson submits that this Court  
should assess general damages jointly and severally against all defendants except  
Mr. Lougheed.  
[634] Mr. Wilson claims aggravated damages of $100,000 against Mr. Janke. He  
does not seek punitive damages against Mr. Janke.  
[635] Mr. Wilson claims aggravated damages of $2,000,000 and punitive damages  
of $1,000,000 against the Canwest defendants.  
 
Lougheed Estate v. Wilson  
Page 164  
Assessed Jointly or Individually  
[636] The first step in the analysis is to address whether damages should be  
assessed against Mr. Janke and the Canwest defendants individually or jointly and  
severally as Mr. Wilson contends.  
[637] It is a well-established principle that all persons who are involved in the  
commission of a joint tort are jointly and severally liable for the damages caused by  
the tort: Church of Scientology at para. 176.  
[638] In this case the Canwest defendants and Mr. Janke did not act in concert and  
did not publish the defamatory statements in furtherance of a common design:  
Weaver at para. 74. Moreover, the content of each of the impugned publications was  
different. Mr. Janke did not publish any statements regarding the deathbed loan. The  
Canwest defendants published only two sentences from the Anonymous Letter.  
[639] In short, there is no evidentiary or legal basis upon which to find that these  
defendants were joint tortfeasors acting in furtherance of a common design. I  
conclude that damages should be assessed individually against Mr. Janke and the  
Canwest defendants.  
[640] I turn first to the assessment of damages against the Canwest defendants.  
Assessment of Damages against the Canwest defendants  
[641] The overarching position of the Canwest defendants is that, if any damages  
are payable to Mr. Wilson, they should be deeply discounted to reflect the  
substantial amount of true information in the Article and the July Article. They  
contend that the magnitude of the damages sought by Mr. Wilson is so unrealistic so  
as to constitute “a sheer absurdity”.  
[642] Mr. Wilson is not required to prove loss in order to recover general damages  
for defamation. However, I must not take into account any damage to Mr. Wilson  
suffered from either the impugned statements that have been proven true or the  
impugned statements which I have found to be shielded by the defence of  
   
Lougheed Estate v. Wilson  
Page 165  
responsible communication. The damage award must only reflect the damage from  
the defamatory statements in the Article pertaining to the deathbed loan.  
[643] In assessing the appropriate damage award against the Canwest defendants  
I have considered the following factors:  
The seriousness of the publication  
[644] The allegations in the Article pertaining to the deathbed loan connote a sense  
of exploitation and that Mr. Wilson was a callous person who lacked a sense of  
morality. This is a serious allegation against an elected official who had sought and  
received public trust during the 2006 election.  
Reputation of the plaintiff  
[645] Mr. Wilson was an elected Member of Parliament when the defamatory  
statements pertaining to the deathbed loan were published. Because of his position,  
he could reasonably expect to be the subject of scrutiny and criticism. However, and  
by the same token, because of his elected office, he was particularly vulnerable to  
the impeachment of his moral integrity. This is a significant factor in the assessment  
of damages.  
The identity of the defendant  
[646] The Province is a widely circulated daily newspaper in British Columbia.  
The breadth of the distribution of the publication of the libel  
[647] The Article with several photographs was published on the front page of the  
Sunday edition of the Province on October 28, 2007. Although there was no  
evidence tendered of the actual circulation numbers at the material time it is  
uncontroversial that the Article was widely read and generated significant attention.  
[648] The Article was also published on the newspaper’s website on the Internet.  
Mr. Dawson’s letter to the Jack Webster Foundation on June 24, 2008, supports the  
notion that there was also a wide online circulation of the Article. Mr. Dawson  
       
Lougheed Estate v. Wilson  
Page 166  
describes the date of publication of the Article as the Province’s “highest day of web  
traffic to that date” with 150,000 page views.  
Republication of the libel  
[649] The Canwest defendants referenced the allegations regarding the deathbed  
loan again in their opinion editorial dated October 29, 2007 entitled “MP Blair Wilson  
must clear the air or resign his West Van seat”.  
Contemporaneous publication by others  
[650] On October 31, 2007, the North Shore News published reference to the  
Article and in particular the deathbed loan allegations. There has been no legal  
complaint launched in relation to that publication.  
[651] The same or similar defamatory statements published elsewhere do not  
reduce the amount of compensatory damages payable by the Canwest defendants.  
Otherwise, Mr. Wilson may never recover the full amount of damage done to his  
reputation.  
The impact on Mr. Wilson  
[652] Mr. Wilson’s mother telephoned him in tears on Sunday, October 28, 2007  
and informed him about the Article. Although the Wilsons did not subscribe to the  
Province, Mr. Wilson discovered that the Province had been dropped off at his front  
door.  
[653] The evidence establishes that the publication of the Article and the July  
Article had a significant adverse impact on Mr. Wilson. Crucially, however, as I noted  
earlier, Mr. Wilson must not be compensated for any loss he may have suffered from  
the publication of the impugned statements that were either proven to be true or  
shielded by the responsible communication defence. Earlier in these Reasons I  
found the following:  
(i)  
there were infractions of the Canada Elections Act during Mr. Wilson’s  
2005 campaign;  
     
Lougheed Estate v. Wilson  
Page 167  
(ii)  
Mr. Wilson had a history of business controversies and he exaggerated  
his past business success during his campaign; and  
(iii)  
Mr. Wilson and his wife Kelly were indebted to financial institutions for  
approximately $1.8 million at the material time and Kelly owed her  
parents some $812,000 as of the date of her mother’s death in May,  
2007.  
[654] Mr. Wilson submits that one of the most significant consequences of the  
defamation was the loss of his political career as a Member of Parliament. In his trial  
brief, Mr. Wilson indicated that he would be claiming $628,693 for the loss of salary  
as a Member of Parliament between October 2008 and November 2015 and  
$823,278 which he maintained was the present value of the loss of his parliamentary  
pension benefits. However, at trial Mr. Wilson did not adduce any cogent evidence  
regarding his pension. He candidly acknowledged that he could not recall the  
pertinent details.  
[655] In so far as his claim for loss of income and pension benefits, Mr. Wilson must  
prove an actual pecuniary loss. In Botiuk, the Supreme Court of Canada in  
addressing the plaintiff’s loss of income claim stated as follows:  
It is true that proof relevant to special damages may be admissible for the  
purpose of supporting general damages. However, unlike general damages,  
actual pecuniary loss is not presumed. Therefore, special damages must be  
specifically pleaded and proved in court. See The Law of Defamation canada,  
supra, at p. 25-75 [Emphasis added.]  
[656] After his resignation from the Liberal Caucus, Mr. Wilson continued to serve  
as an independent Member of Parliament until the next federal election was called in  
2008. Mr. Wilson ran as a candidate in 2008 as a member of the Green Party in the  
2008 election. According to Mr. Wilson when he was “door knocking” during the  
2008 campaign people raised the deathbed loan allegations and the money he owed  
his father-in-law.  
Lougheed Estate v. Wilson  
Page 168  
[657] However, Mr. Wilson acknowledged that he faced considerable challenges  
by not running as a member of a major political party. Indeed, Mr. Wilson concedes  
in his written submissions that “the reality was re-election without the support of a  
major political party was simply not possible”. Earlier in these Reasons, I found that  
Mr. Dion’s decision not to approve Mr. Wilson as a candidate to represent the Liberal  
Party in the 2008 election was because the Greenlight Committee had concluded  
that Mr. Wilson had failed to provide the full and frank disclosure the Liberal Party  
required. The Liberal Party had commenced their investigation into Mr. Wilson prior  
to the publication of the Article. It was his ouster from the Liberal Party and not the  
defamation that determined Mr. Wilson’s political fate.  
[658] Mr. Wilson is only entitled to be restored to the position he would have been  
in had the defamation not occurred. A past hypothetical event, such as Mr. Wilson’s  
re-election in 2008, should only be considered in the assessment of damages if  
there was a real and substantial possibility of that event occurring: Dhaliwal v.  
Greyhound Canada, 2017 BCCA 260, at paras. 28-30.  
[659] On the totality of the evidence, Mr. Wilson has not proven that given his  
ouster from the Liberal Party in late 2007, and absent the tortious conduct of the  
Canwest defendants, there was a real and substantial possibility that he would have  
been elected in the 2008 election. Put another way and to the same effect, the  
defamatory publication was not the proximate cause of Mr. Wilson’s loss of income  
as a Member of Parliament; his failure to be re-elected was not the natural and  
probable consequence of the defamatory publication.  
[660] In all the circumstances, I conclude that Mr. Wilson has not proved that he  
suffered a pecuniary loss because of the defamation.  
[661] The authorities establish that a loss of standing in a plaintiff's community is a  
factor that increases damages. Social damage and possible economic damage  
which may result but which cannot be expressly proven is a particularly crucial  
consideration in a claim for general damages arising from defamation in the mass  
Lougheed Estate v. Wilson  
Page 169  
media: Brown v. Cole, [1999] 7 W.W.R. 703 (B.C.C.A.), leave to appeal ref’d, [1998]  
S.C.C.A. 614.  
[662] Mr. Wilson described the social shunning and stigmatization he and his family  
encountered in West Vancouver after the publication of the Article. He described  
himself as “ignored”, “ostracized” and “radioactive” in West Vancouver and in  
Ottawa. In cross-examination, Mr. Wilson stated that he perceived that the greatest  
damage to his reputation was from the allegations pertaining to the deathbed loan  
and the indebtedness to the Lougheeds. He related to the Court that, even in 2015,  
he continued to be shunned by some citizens of West Vancouver and that former  
friends continue not to return his calls.  
[663] Balancing the evidence as a whole, I accept that as a result of the publication  
of the deathbed loan allegations, Mr. Wilson suffered emotional distress, humiliation  
and the loss of standing in the West Vancouver community and with his colleagues  
in Ottawa. His tarnished reputation is a significant factor in the assessment of  
damages.  
[664] Mr. Wilson also alleges that the defamation was so uniquely devastating that  
it forced him to leave his home community in West Vancouver.  
[665] There can be no doubt that the impugned statements that have been proven  
true and the impugned statements that I have found to be shielded by the defence of  
responsible communication also caused Mr. Wilson a significant loss of standing in  
the West Vancouver community.  
[666] Moreover, the evidence establishes that the Wilsons sold the Lawson Avenue  
property in West Vancouver in 2009 to pay off their substantial bank indebtedness.  
After the Lawson Avenue property was sold they moved to rental accommodation in  
West Vancouver. They subsequently moved to rental accommodation in Surrey.  
After the judgment in Kelly's Wills Variation Act claim was rendered in late 2010 and  
she was awarded $5.5 million, the Wilsons moved to Kelowna where they purchased  
a residence. Kelly currently manages an equestrian centre on the property.  
Lougheed Estate v. Wilson  
Page 170  
Mr. Wilson acknowledged in cross-examination that Kelly was a very keen  
equestrian and it had been her long time desire to manage an equestrian centre.  
[667] In the circumstances, I cannot conclude that the Wilsons’ move from West  
Vancouver directly flowed from, or was attributable to, the publication of the  
defamatory statements on the deathbed loan. The Wilsons likely would have moved  
from West Vancouver in any event.  
Correction  
[668] There is no evidence that Mr. Wilson ever sought to correct the inaccuracies  
in the impugned publications. Nor did he ever seek any form of apology.  
[669] The Canwest defendants have never published an apology. However, as I  
mentioned earlier, shortly after learning the true facts, the Canwest defendants  
published a correction regarding the deathbed loan. It was published on page 14 of  
January 23, 2011 print edition of the Province and on the top of the online version of  
the Article. It is annexed as Schedule C to these Reasons.  
[670] The retraction and a copy of the corrected version of the Article remain  
available online. The corrected version of the Article does not allege that Mr. Wilson  
asked Norma for a loan a month before she died.  
Conduct of Ms. O'Connor and the Canwest defendants  
[671] Earlier in these Reasons, I found that neither Ms. O’Connor nor any of the  
other Canwest defendants were actuated by malice and I found Ms. O’Connor to be  
a credible witness.  
[672] Notably, Ms. O’Connor raised the allegations of the deathbed loan with  
Mr. Wilson in their telephone discussion. There was no deliberate intention on her  
part to mislead him. Rather, it was her own confusion that gave rise to her  
inaccurate description of the allegations. While she could have been more fastidious  
in reviewing the pertinent documentation, the evidence does not support a finding  
that she acted recklessly. There is nothing in the evidence that would lead me to  
   
Lougheed Estate v. Wilson  
Page 171  
conclude that she had any intention of injuring Mr. Wilson because of spite or  
animosity or that she knew the deathbed allegations were not true or that she was  
reckless in that regard.  
[673] I am not persuaded on the preponderance of the evidence that Ms. O’Connor  
wrote the Article to enhance her professional reputation or that the Canwest  
defendants intended to publish a sensational story to increase their readership or for  
any improper purpose. Nor does the evidence establish Mr. Wilson’s contention that  
the Canwest defendants timed the publication of the Article “to cause as much  
damage to Mr. Wilson’s reputation as possible”. I accept that the Canwest  
Defendants acted in good faith and that they were genuine in their assertions that  
they believed that the public had a right to know about the allegations in the Article  
regarding a sitting Member of Parliament.  
Conduct of defendants’ counsel through to the end of the trial  
[674] The lawsuit was commenced in 2008 and the matter proceeded through a 59  
day trial in 2015 and 2016. The litigation has been lengthy and vigorously conducted  
on both sides.  
[675] Overall I am not persuaded that the litigation was defended in a manner  
designed to injure Mr. Wilson. I have addressed Mr. Wilson’s submissions on this  
point when addressing the allegations of malice against the Canwest defendants. I  
need not repeat those comments here.  
Amount of general damages  
[676] Having regard to all of the circumstances I have outlined above, I find that  
Mr. Wilson is entitled to significantly more than nominal damages. The publication of  
the defamatory deathbed loan allegations had a profound impact on his life and his  
standing in the community. He suffered substantial distress and damage to his  
reputation and self-worth as a result of the serious and unjustified defamatory  
statements pertaining to the deathbed loan. Mr. Wilson suffered damages over and  
above those damages he sustained as a result of the true statements in the Article  
   
Lougheed Estate v. Wilson  
Page 172  
and those statements saved by the defence of responsible communication. The  
damage was exacerbated by the prominence of the allegation in the Article.  
[677] Since defamation cases turns on their own unique facts there is little to be  
gained from a detailed comparison of libel cases: Church of Scientology at  
para. 187.  
[678] On a balanced consideration of the factors that inform the assessment, I  
award Mr. Wilson compensatory damages of $125,000 against the Canwest  
defendants jointly and severally.  
[679] This award of damages is intended to compensate Mr. Wilson for his personal  
distress and tarnished reputation as well as for any social damage and possible  
economic or business loss which may have resulted but which cannot be expressly  
proven. This award recognizes that the unfairly created stigma associated with the  
deathbed loan can never be wholly undone.  
Aggravated damages  
[680] Malice on the part of the Canwest defendants has not been established.  
Mr. Wilson is not entitled to aggravated damages.  
Punitive damages  
[681] Mr. Wilson has not demonstrated that the Canwest defendants’ conduct was  
sufficiently egregious to merit punitive damages.  
Assessment of Damages against Mr. Janke  
[682] Mr. Janke made very few submissions on damages other than asserting that  
any damage award against him should be nominal. He underscored the absence of  
any evidentiary basis for Mr. Wilson’s contention that Mr. Janke was motivated by  
malice. His submission on damages was otherwise underdeveloped.  
     
Lougheed Estate v. Wilson  
Page 173  
The seriousness of the publication  
[683] As I previously stated, the clear meaning of the impugned publication was  
that Mr. Wilson had wilfully misled Elections Canada on his statement of electoral  
campaign expenses by intentionally failing to report numerous expenses and  
donations. The obvious implication was that Mr. Wilson had been dishonest as a  
candidate during the 2006 federal election. Again, this is clearly a serious allegation  
against an elected official who was in a position of public trust.  
Reputation of the plaintiff  
[684] Mr. Wilson, as an elected official, was particularly vulnerable to the  
impeachment of his integrity. However, fairness requires that I take into account that  
when Mr. Janke published his blog on November 3 and 4, 2007, Mr. Wilson had  
already resigned from the Liberal Party Caucus. This is a significant factor in the  
assessment of damages.  
The identity of the defendant  
[685] At the material time Mr. Janke, a professional software engineer residing in  
Ontario, published a blog called “Angry in the Great White North”, with the subtitle “a  
heat-seeking missile in the Conservative arsenal”. He described the blog as a  
running commentary on news and politics from a small “c” conservative, generally  
libertarian point of view. The information on his blog was derived from online  
sources, typically from news reports.  
[686] As I mentioned earlier, Mr. Janke has never been a member of a political  
party, nor has he ever had dealings with Mr. Wilson or his Conservative Party  
opponent, John Weston. Mr. Janke was a supporter of the Conservative Party and  
thus had a general interest in seeing Conservative candidates win their ridings but  
otherwise had no specific interest in Mr. Wilson.  
The breadth of the distribution of the publication of the libel  
[687] There has been wide judicial recognition of the notion that publication on the  
Internet has the potential to be far more ubiquitous and pervasive than other forms  
       
Lougheed Estate v. Wilson  
Page 174  
of publication. However, as observed by Mr. Justice Punnett in Wilson at para. 502,  
publication on the Internet does not inevitably result in a significant damage award.  
[688] Except for Mr. Janke’s own testimony, there was scant evidence adduced on  
the extent of the readership of Mr. Janke’s impugned blog. The evidence establishes  
that some portions of Mr. Janke’s impugned blog were circulated to members of the  
Liberal Party including Mr. Marissen, Mr. Crawford and Mr. McLaughlin.  
[689] As I mentioned earlier, generally the readership of Mr. Janke’s blog was  
modest, in the range of a few hundred hits a day. Mr. Janke testified that his blog  
posts about Mr. Wilson did not generate much interest and were a “bit of a wet  
firecracker in terms of traffic”. Mr. Janke’s blog permitted people to comment on  
stories he posted. To his knowledge, neither Mr. Wilson nor anyone on his behalf  
commented on his impugned posts.  
[690] There was no evidence advanced refuting Mr. Janke’s testimony on the  
extent of his readership and he was unshaken on the point in cross-examination.  
[691] Moreover, there was no evidence that Mr. Janke’s blog was linked to other  
sites on the internet and accordingly, unlike other internet publication cases, it was  
not repeated to a “vast global audience”: Barrick Gold Corp. at para. 1.  
[692] Approximately three years ago, Mr. Janke stopped posting on his blog and his  
website expired shortly thereafter. Up until that time the posting at issue would have  
been recoverable through the index to the blog.  
[693] While the precise extent of the readership cannot be ascertained, balancing  
the evidence as a whole, I find that Mr. Janke’s impugned blog had a limited  
audience and the readership was modest. In this case, the features of the Internet’s  
“interactive nature, its potential for being taken at face value, and its absolute  
worldwide ubiquity and accessibility” described by the Ontario Court of Appeal in  
Barrick Gold Corp. at paras. 30-31, 33-34 were not present to the degree suggested  
by Mr. Wilson.  
Lougheed Estate v. Wilson  
Page 175  
Contemporaneous publication by others  
[694] As I mentioned earlier, I do not accept Mr. Janke’s contention that publishing  
the Anonymous Letter posed no threat to Mr. Wilson’s reputation because a  
substantial amount of the information it contained had already been reported.  
[695] Moreover, while the Article refers to the Anonymous Letter it does not include  
all of the eight charges nor does it include the reference to Mr. Wilson having wilfully  
mislead Elections Canada. Similarly the Globe and Mail article by reporter Jennifer  
Ditchburn details some but not all of the charges contained in Mr. Janke's blog. The  
Globe and Mail article mentioned only the allegations regarding the Cowrie Street  
office, the West Vancouver office and umbrellas.  
The impact on Mr. Wilson  
[696] Mr. Wilson saw the Anonymous Letter for the first time on Mr. Janke's  
website. Mr. Wilson cannot recall the date but he said it would have been “probably  
pretty soon” after it was posted because he was informed by others of its existence.  
According to Mr. Wilson, the Canada Elections Act issue was raised by other  
members of Parliament and Senators in Ottawa as well by some real estate  
professionals in West Vancouver. He also related to the Court that a friend whose  
name he could not recall phoned him from abroad after reading Mr. Janke’s blog.  
Mr. Wilson conceded that the allegations regarding the deathbed loan and the debts  
owing to Mr. Lougheed had more of an adverse impact on him than the Canada  
Elections Act allegations.  
[697] On the totality of the evidence, I find that as a result of the publication of  
Mr. Janke’s blog, Mr. Wilson suffered some degree of emotional distress, humiliation  
and loss of standing. However, it was significantly less than the adverse impact of  
the deathbed loan allegations.  
Absence of retraction or apology  
[698] Mr. Janke never published an apology or retraction.  
     
Lougheed Estate v. Wilson  
Page 176  
[699] In any case, in July 2008 after Elections Canada had completed their review,  
Mr. Wilson sent out a media advisory to the effect that on July 20, 2008 at a  
designated location in West Vancouver he would make an important announcement  
about his future. On July 20, 2008, Mr. Wilson announced that he had been cleared  
by Elections Canada of any “serious financial wrongdoing”. At the same time,  
Mr. Wilson publicly admitted certain infractions of the Canada Elections Act. This  
announcement was widely publicized.  
[700] Mr. Janke cannot recall if he ever posted Mr. Wilson’s announcement on his  
blog.  
Conduct of Mr. Janke  
[701] I have indicated earlier in these Reasons that I am not persuaded that there is  
an evidentiary basis to find that Mr. Janke was actuated by malice. But for his failure  
to seek Mr. Wilson’s side of the story before publishing, I would have found his  
communication responsible. For clarity, I reject Mr. Wilson’s contention that  
Mr. Janke had any improper motive and that he had “an ax to grind with respect to  
Liberals”. I accept that the objective of his blog was to foster public discussion and  
that he genuinely perceived the allegations with respect to Mr. Wilson’s electoral  
financing to be in the public interest.  
[702] Furthermore, there is no suggestion that the conduct of Mr. Janke's counsel  
through to the end of the trial was a factor that should increase damages.  
Amount of general damages  
[703] Mr. Wilson’s claim for $5,000,000 in general damages (jointly and severally  
with the other defendants) and $100,000 in aggravated damages against Mr. Janke  
is out of proportion to Mr. Janke’s actual tortious conduct.  
[704] On a balanced consideration of the factors that inform the assessment, I  
award compensatory damages of $15,000 against Mr. Janke.  
   
Lougheed Estate v. Wilson  
Aggravated damages  
Page 177  
[705] Having found no malice, there is no basis upon which to award Mr. Wilson  
aggravated damages against Mr. Janke.  
CLAIM UNDER THE BPCPA  
Overview of Mr. Wilson’s claim  
[706] Mr. Wilson claims that the publication of his alleged failure to pay constitutes  
a violation of the BPCPA. He characterizes the BPCPA as a “strict liability statute”.  
[707] Mr. Wilson alleges that each of the Canwest defendants, Ms. Tyabji and the  
Lougheed defendants committed the statutory tort of harassment in contravention of  
s. 114 of the BPCPA.  
[708] It is common ground that this claim survived Mr. Lougheed’s death.  
Statutory framework  
[709] The BPCPA was enacted in 2004. It amalgamated and harmonized six  
predecessor consumer statutes in this province including the Debt Collection Act  
[repealed], R.S.B.C. 1996, c.92.  
[710] The primary objective of the BPCPA is to ensure fair business practices. In  
Seidel v. Telus communications Inc., 2011 SCC 15 at para. 37 the Court concluded  
that “the BPCPA is all about consumer protection” and as a result, “its terms should  
be interpreted generously in favour of consumers”. Madam Justice Neilson’s  
distillation of the overarching objectives of the BPCPA in Koubi v Mazda Canada  
Inc., 2012 BCCA 310 is instructive :  
[63] … A close examination of the statute’s legislative objectives and  
provisions reveals a clear intent to provide an exhaustive code regulating  
consumer transactions, directed to both protection of consumers and fairness  
and consistency for all parties in the consumer marketplace. The Act has  
over 200 provisions that comprehensively establish, administer, and enforce  
statutory rights and obligations directed to the regulation of consumer  
transactions in a multitude of circumstances. …  
[711] Section 114 of the BPCPA prohibits certain conduct in debt collection:  
       
Lougheed Estate v. Wilson  
Page 178  
114. Harassment  
114(1) A collector must not communicate or attempt to communicate with a  
debtor, a member of the debtor's family or household, a relative, neighbour,  
friend or acquaintance of the debtor, or the debtor's employer in a manner or  
with a frequency as to constitute harassment.  
114(2) Without limiting subsection (1), one or more of the following  
constitutes harassment:  
(a) using threatening, profane, intimidating or coercive language;  
(b) exerting undue, excessive or unreasonable pressure;  
(c) publishing or threatening to publish a debtor's failure to pay.  
[Emphasis added.]  
[712] The debt collection prohibitions found in the BPCPA apply to ”collectors” as  
defined in s. 113:  
113. Definition  
In this division, "collector" means a person, whether in British Columbia or  
not, who is collecting or attempting to collect a debt.  
[713] Section 1(1) states that publishing “means make public in any manner,  
including by or through any media”.  
[714] These debt collection provisions establish a statutory tort of harassment:  
Total Credit Recovery v. Roach, 2007 BCSC 530, at para. 46.  
[715] Section 115 of the BPCPA reads as follows:  
115. Disclosure to debtor  
115(1) A collector must not attempt to collect payment of a debt from a debtor  
until the collector has notified the debtor in writing or the collector has made a  
reasonable attempt to notify the debtor in writing of  
(a) the name of the creditor  
(i) with whom the debt was originally incurred, and  
(ii) to whom the debt is currently owed, if different from the  
creditor described in subparagraph (i),  
(b) the amount of the debt  
(i) on the date it was first due and payable, and  
(ii) currently owing, including a breakdown of that current  
amount, if different from the amount of the debt on the date it  
was first due and payable, and  
Lougheed Estate v. Wilson  
Page 179  
(c) the identity and authority of the collector to collect the debt from  
the debtor.  
[716] Crucially however, the section only applies to collectors who are not creditors.  
The BPCPA regulations, B.C. Reg. 295/2004, s. 2(2) specifically exempt creditors  
from these notice provisions:  
2. Exemptions from Part 7 of the Act  
…
2(2) Section 115 [disclosure to debtor] of the Act does not apply to a creditor  
collecting or attempting to collect a debt owed to the creditor.  
Analysis  
Claim against Mr. Lougheed  
[717] In his pleadings, Mr. Wilson asserts that Mr. Lougheed contravened s. 114 of  
the BPCPA:  
1. The publication, distribution and anticipated republication of the allegations  
of the Plaintiff Lougheed and the Defendants by Counterclaim O’Connor,  
Canwest and Tyabji were done maliciously for the deliberate purpose of  
causing financial and political embarrassment and harm to the Defendant  
Blair Wilson and Kelly Wilson and their family and were in violation of section  
114 of the [BPCPA] and The Privacy Act RSBC 1996, c 373.  
…
5. Further in their natural and ordinary meaning the words published by the  
Plaintiff Lougheed, and republished by the Defendants O’Connor and  
Canwest as set out in paragraphs 32 through 36 and 51 alleged a failure of  
the defendant Blair Wilson to pay a debt. As such, constitutes harassment,  
pursuant to section 114 (2) of the [BPCPA].  
[718] Although not included in his pleading, Mr. Wilson alleges that, at the material  
time, Mr. Lougheed failed to issue a demand for payment and in doing so he  
breached s. 115 of the BPCPA. Mr. Lougheed alleged that Mr. Wilson owed the  
debts at issue to Mr. Lougheed personally, to Norma’s estate and to Norbill  
Investments: the WVA Action at paras. 301–316. On a plain reading of the BPCPA  
regulations, Mr. Lougheed as a creditor was exempt from the requirements of s. 115.  
   
Lougheed Estate v. Wilson  
Evidentiary Matters  
[719] As I stated earlier, Mr. Lougheed died mid-trial before the Lougheed  
Page 180  
defendants had called any evidence. Mr. Wilson’s counsel read in portions of  
Mr. Lougheed’s examination for discovery testimony as part of his case. Several  
witnesses testified about various statements Mr. Lougheed had made to them. This  
evidence included Mr. Lougheed’s declarations regarding Mr. Wilson’s alleged  
indebtedness and his failure to pay.  
[720] During the trial, I expressed concern about the admissibility of some of these  
statements, given their hearsay nature. I determined that I would permit the  
witnesses to relay these statements in their testimony and that I would reserve my  
ruling as to the admissibility of, and corresponding use, that could be made of those  
statements. In final submissions, all counsel indicated that in light of his death there  
was no objection to the admissibility of Mr. Lougheed’s statements.  
[721] In the circumstances, I need not address the issue further other than to say,  
for the sake of completeness, that I am satisfied that the statements attributed to  
Mr. Lougheed and tendered for the truth of their contents meet the threshold test for  
admissibility under the “principled approach” to hearsay expounded by the Supreme  
Court of Canada in Khelawon. The evidence was both necessary and there was  
threshold reliability to the evidence. I reviewed those principles in Harshenin v.  
Khadikin, 2015 BCSC 1213 at paras. 33-36.  
Discussion  
[722] The Lougheed defendants raised several grounds for opposing Mr. Wilson’s  
claim under the BPCPA. I will address each in turn.  
S.173 Breach  
[723] The Lougheed defendants point out that there is no evidence that the director  
was served with notice of this proceeding pursuant to s. 173. However, section  
173(3) of the Act permits the Court to proceed even if the director has not been  
Lougheed Estate v. Wilson  
Page 181  
served. In all the circumstances of this case and in light of the fact that Mr. Wilson’s  
claim has been outstanding for several years, I have determined that it is appropriate  
to proceed with adjudicating Mr. Wilson’s claim.  
Was Mr. Lougheed a Collector?  
[724] I next address whether Mr. Lougheed met the definition of “collector” in the  
Debt Collection provisions of the BPCPA.  
[725] The provisions of the BPCPA must be construed with regard to the well-  
settled principles governing the modern approach to statutory interpretation. To  
summarize, “the words of an Act are to be read in their entire context and in their  
grammatical and ordinary sense harmoniously with the scheme of the Act, the object  
of the Act, and the intention of Parliament”: Elmer A. Driedger, The Construction of  
Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87; Rizzo and Rizzo Shoes Ltd.  
(Re), [1998] 1 S.C.R. 27 at para. 21. The purposive approach is codified in s. 8 of  
the Interpretation Act, R.S.B.C. 1996, c. 238, which provides that “every enactment  
must be construed as remedial, and must be given such fair, large, and liberal  
construction and interpretation as best ensures the attainment of its objects”: CBV  
Collection Services Inc. v. Consumer Protection B.C., 2017 BCSC 1018 at para. 53.  
[726] It is common ground that this case did not involve a consumer transaction as  
that term is defined under the BPCPA. As Ballance J. observed in the WVA Action:  
[151] This was not an arm’s length commercial transaction. It was a  
sweetheart family arrangement between wealthy parents and their daughter  
and son-in-law. I conclude that much like all of Norma’s financial dealings  
with the Wilsons, other than ensuring the purchase price was acceptable to  
William and reaching an agreement on the monthly amount payable, there  
was a lack of formality surrounding the repayment of the loan. …  
[727] The overarching contention of the Lougheed defendants is that s. 114 cannot  
apply to non-commercial loans. The Lougheed defendants submit that, for policy  
reasons, the definition of collector in the BPCPA should be interpreted as excluding  
family members. They also assert that all members of the class of persons  
enumerated in s. 114(1) should also be excluded. They maintain that there is no  
Lougheed Estate v. Wilson  
Page 182  
principled rationale for administrative and civil sanctions to be applied among family  
members. The Lougheed defendants urge this Court to find that only debt collection  
practices in commercial transactions require legislative oversight.  
[728] The critical question is whether the Legislature intended to exclude family  
members from the definition of collectors. It is a cardinal rule of statutory  
interpretation that the Court must determine legislative intent from the words  
expressed in the statute, in the context of the act as a whole. In The Queen (Can.) v.  
Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; the Supreme Court of Canada, at  
226, cautioned that courts “must refrain from conjecture as to the Legislature’s  
unexpressed intent”.  
[729] On a plain reading, the definition of “collector” in the BPCPA is broad and its  
scope expansive. The only limitation imposed on the word “person” in the definition  
of “collector “is that they must be collecting or attempting to collect a debt. The broad  
definition of “collector” in the BPCPA is to be contrasted with the narrowly prescribed  
definition of “collector” in the former Debt Collection Act [repealed], R.S.B.C. 1996,  
c. 92, s. 1:  
"collection agent" means a person, other than a collector, who, for  
remuneration, does any of the following:  
(a) carries on business, or represents to another person that he or she  
is available to carry on business, collecting debts for others;  
(b) collects, negotiates payments of, or demands payment of a debt  
for another person;  
(c) receives money from a debtor for distribution to any of the debtor's  
creditors;  
(d) arranges or operates, or represents to another person that he or  
she is available to arrange or operate, a debt pooling system;  
(e) carries on the business of, or represents to another person that he  
or she is available to carry on the business of, taking an assignment  
of a debt due to another for the purpose of collecting, negotiating  
payment of, or demanding payment of it;  
"collector" means a person who is not a collection agent but who is  
employed by a collection agent, either generally or for a specific purpose, to  
do anything referred to in the definition of "collection agent";  
Lougheed Estate v. Wilson  
Page 183  
[730] In my view the interpretation advanced by the Lougheed defendants cannot  
prevail. I discern nothing in the language of the statute that would support such an  
interpretation. If it was not the intention of the Legislature to capture transactions  
among family members, it is open to them to amend the debt collection provisions of  
the statute.  
[731] The Lougheed defendants also point to the provisions that prohibit  
communicating with debtors on statutory holidays and submit that this provision  
would prohibit family members from spending time together. They maintain such an  
interpretation is contrary to public policy and the public interest in promoting family  
and community. However, this provision would only apply in circumstances where  
the BPCPA is engaged, namely, when collecting or attempting to collect a debt.  
There is otherwise no limit on social interactions among family members.  
[732] In the end, I am not persuaded that, applying modern statutory interpretation  
principles, the definition of collector in the BPCPA can be interpreted as excluding  
family members from the ambit of its debt collections provisions.  
[733] The next step in the analysis is to consider whether Mr. Lougheed was  
“collecting” nor “attempting” to collect a debt at the material time. The Lougheed  
defendants assert that Mr. Lougheed’s statement of a “future intent to collect” did not  
amount to a present act of collection or an attempted collection of a debt.  
[734] Mr. Lougheed stated In his examination for discovery that, shortly after  
Norma’s death and with the assistance of his daughter Lynda Lougheed, he found  
documents indicating that Mr. Wilson and Kelly had received significant funds, that  
there were outstanding liabilities, and that the Wilsons had not made regular loan  
payments on the Whistler property for several months. He enlisted the assistance of  
his accountant, Mr. Murdoch, to review the records, verify the Wilsons’ indebtedness  
and prepare a report. The material was sent to Mr. Lougheed’s lawyer.  
Mr. Lougheed also authorized the CanWest defendants to investigate and publish  
this information.  
Lougheed Estate v. Wilson  
Page 184  
[735] In short, the totality of the evidence establishes that Mr. Lougheed himself, or  
through his authorized agent Lynda Lougheed, communicated to Ms. O’Connor for  
publication in the media his desire for repayment of outstanding indebtedness and  
that there had been a failure to pay by Mr. Wilson.  
[736] I accept Ms. O’Connor’s evidence that she accurately reported  
Mr. Lougheed’s assertions about Mr. Wilson’s alleged failure to pay. Ms. O’Connor  
expressly stated in the Article at paras. 20-22 that there had been a failure to pay  
and that Mr. Lougheed wished to be repaid. At para. 24 of the Article she reports  
Mr. Lougheed references to Mr. Wilson “defaulting “.  
[737] On the totality of the evidence, I am satisfied Mr. Lougheed’s conduct  
constitutes an attempt to collect under the BPCPA. At the time of the publication of  
the Article Mr. Lougheed had taken steps to verify the alleged indebtedness and  
retained an accountant and lawyer in this regard; this resulted in the commencement  
of the debt recovery proceedings. He authorized the publication in the media of  
Mr. Wilson’s alleged indebtedness and failure to pay. Moreover, by the time the July  
Article was published Mr. Lougheed had commenced debt recovery proceedings  
against Mr. Wilson. Although the bulk of the proceedings had been discontinued  
against Mr. Wilson, Mr. Lougheed asserted through the media that he was  
considering “other options” and that Mr. Wilson who had benefitted from the loans  
felt “no obligation to repay them’.  
[738] I conclude that Mr. Lougheed was attempting to collect a debt as that term is  
referenced in the statute.  
[739] Finally, I agree with the Lougheed defendants that the allegations pertaining  
to the deathbed loan are properly excluded from Mr. Wilson’s claim for the breach of  
s. 114. There is no suggestion in the Article whether or not the monies allegedly  
advanced by Norma were a loan or a gift. Nor was there any suggestion of a failure  
to pay or that Mr. Lougheed was seeking repayment of that alleged advance.  
Lougheed Estate v. Wilson  
Interpretation of s. 114  
Page 185  
[740] I turn to consider the provisions of s. 114. Very few cases have been decided  
under s. 114 and there is a dearth of authorities addressing the issues that confront  
the Court in this case.  
[741] The clear purpose of s. 114 is to sanction improper collection purposes that  
have adverse consequences for a debtor. Application of s. 114 calls for a purposive  
interpretation that best furthers its objects.  
[742] Mr. Wilson relies on BPCPA s. 114(2)(c) which defines the “publishing or  
threatening to publish a debtor’s failure to pay” as “harassment” for the purposes of  
ss. 114(1). Since the definition of “publish” includes publishing through the media,  
Mr. Lougheed is not exempt from liability because he did not personally publish the  
failure to pay.  
[743] The Lougheed defendants submit that to make out the statutory tort of  
harassment the statute requires both the manner and frequency of the  
communication with the debtor to be harassing. They assert that in this case the  
constituent elements of the statutory tort of harassment have not been made out  
because there were not repetitive communications with Mr. Wilson.  
[744] Section 114(1) defines the constituent elements of the statutory tort of  
harassment. Crucially the wording of s. 114(1) is disjunctive: it refers to the “manner”  
or frequency of harassment. It is not necessary to show a frequency of  
communications in order for the defendant’s conduct to constitute harassment. It is  
sufficient to establish the statutory tort of harassment if a collector communicates  
with those enumerated in subsection 141(1) in either a manner that constitutes  
harassment or with a frequency that constitutes harassment.  
[745] Section 114(2)(c) is not a stand-alone provision and in itself does not  
proscribe conduct or define an offence. Rather, s. 114(2) defines examples of what  
constitutes a prohibited manner of communication, such as (a) profanity, (b) exerting  
Lougheed Estate v. Wilson  
Page 186  
undue pressure, and (c) publishing or threatening to publish failure to pay. The  
examples in s. 114(2) expressly do not limit the generality of s. 114(1).  
[746] In essence, s. 114 requires that a collector not communicate with a debtor or  
those person or entities described in s. 141(1) in a manner or with a frequency as to  
constitute harassment. Section 114(2) provides that making the debtor’s alleged  
failure to pay public, by or through the media, is an example of a proscribed manner  
of conduct. Here, Mr. Lougheed (the collector) communicated Mr. Wilson’s  
indebtedness and failure to pay to Ms. O’Connor and he expressed his desire to be  
repaid. Mr. Lougheed caused the pertinent information to be made public, by or  
through publication in the media. Mr. Wilson (the debtor) and his mother (a relative)  
read the Article. Mr. Wilson read the July Article. The constituent elements of the  
statutory tort have been established.  
[747] In summary, the debts at issue were alleged to be variously owing to  
Mr. Lougheed personally, to Norma’s estate and to Norbill Investments. By making  
public Mr. Wilson’s alleged failure to pay through publication in the media,  
Mr. Lougheed contravened s. 114 of the BPCPA. My interpretation of Mr. Wilson’s  
pleadings is that he only seeks relief under the BPCPA against Mr. Lougheed  
personally. Accordingly, Balwinder K. Lougheed, in her capacity as the litigation  
representative for Mr. Lougheed’s estate is liable for the breach of s. 114 of the  
BPCPA.  
Damages  
[748] Mr. Wilson is seeking $2,000,000 in general damages $2,000,000 in  
aggravated damages, and an additional $2,000,000 in punitive damages for breach  
of the BPCPA by the Lougheed defendants.  
[749] The BPCPA prescribes statutory remedies for statutory breaches.  
[750] The key provision for assessing damages under the BPCPA is s. 171. Section  
171 allows for a plaintiff to bring a claim for damages arising “due to a contravention  
of this Act”:  
Lougheed Estate v. Wilson  
Page 187  
171. Damages recoverable  
171(1) Subject to subsection (2), if a person, other than a person referred to  
in paragraphs (a) to (e), has suffered damage or loss due to a contravention  
of this Act or the regulations, the person who suffered damage or loss may  
bring an action against a  
…
(c) collector, as defined in section 113 [definitions],  
…
who engaged in or acquiesced in the contravention that caused the damage  
or loss.  
171(2) A person must not bring an action under this section if an application  
has been made, on the person's behalf, to the court in respect of the same  
defendant and transaction under section 192 [compensation to consumers].  
171(3) The Provincial Court has jurisdiction for the purposes of this section,  
even though a contravention of this Act or the regulations may also constitute  
a libel or slander.  
[751] The rights under the BPCPA are to be enforced exclusively through its  
statutory regime. The statute represents “a comprehensive and effective scheme” for  
the enforcement of the statutory rights and obligations it creates: Koubi at para. 65.  
Section 171 limits recovery to the plaintiff’s damages or loss arising from the  
prohibited conduct: Koubi at para. 64.  
[752] At trial, the Lougheed defendants sought to dismiss Mr. Wilson’s action under  
the BPCPA under Rule 9-6, the summary judgment rule, and in the alternative,  
under Rule 12-5(6), the insufficient evidence rule. Pursuant to the Rule, they elected  
not to call any evidence. In a mid-trial ruling I dismissed the application.  
[753] One of the grounds on which the Lougheed defendants sought to dismiss the  
claim was the alleged deficiency in Mr. Wilson’s pleadings in failing to specifically  
plead s. 171. I held that the defendants were not taken by surprise with respect to  
Mr. Wilson’s claim for damages for breach of the statutory tort. I assumed no  
prejudice. The plea for damages in the Counterclaim was sufficiently broad to  
encompass damages under s. 171. Mr. Wilson’s pleading adequately informed the  
defendants of the legal foundation of his claim under s. 114 of the BPCPA and that  
Lougheed Estate v. Wilson  
Page 188  
he was seeking compensation for the statutory tort of harassment. If I am incorrect, I  
would permit the requisite amendment.  
[754] I turn to the assessment of damages.  
[755] As a starting point in the analysis, s. 171 requires that a plaintiff must prove  
that he or she suffered damage or loss due to the contravention of the Act. Damages  
are not at large and are not to be presumed as is the case in defamation.  
[756] There has been little judicial consideration of the factors that inform the  
court’s assessment of damages under s 171. In Total Credit Recovery, Madam  
Justice Koenigsberg affirmed a Provincial Court award of damages for stress,  
anxiety and humiliation. However, Koenigsberg J. disallowed the claim for loss of  
reputation because there was a lack of evidence proving that the alleged loss flowed  
from the specific breach of the BPCPA. She held that it was incumbent on the  
plaintiff to distinguish the loss of reputation she suffered as a result of the breach of  
the BPCPA from the losses she suffered on account of the default judgment that had  
been obtained against her.  
[757] Mr. Wilson conflated his claim for the damages he sought for the  
contravention of s. 114 with the damages he sought for defamation. In his  
submissions, he addressed damages globally drawing no distinction between the  
damages he suffered as a result of the defamation and those he suffered as a result  
of the statutory tort of harassment. Mr. Wilson’s overarching contention is that the  
same principles that inform the assessment of damages in defamation cases should  
be applicable to assessing damages for the statutory tort of harassment, “with the  
exception that damages should not be presumed”. He asserts that there is no  
principled basis to limit damages payable under s. 171.  
[758] I have not been made aware of any authorities in which has the court has  
confronted the thorny question of the intersection between defamation and the  
statutory tort of harassment.  
Lougheed Estate v. Wilson  
Page 189  
[759] In my view the doctrinal underpinnings related to defamation are distinct from  
the statutory tort of harassment. As our Court of Appeal recently observed in Weaver  
at para. 62, “the function of defamation law is to protect and vindicate reputation  
from harm that is unjustified”. A clear objective of the BPCPA is the protection of  
debtors and to ensure fairness and consistency in debt collection practices. There  
may be cases when liability is established for both defamation and the statutory tort  
of harassment. This is not one of those cases. Mr. Wilson has not succeeded in his  
claim for defamation with respect to the publication of his alleged failure to pay.  
[760] Accordingly, the task of this Court is to assess only the loss and damage  
Mr. Wilson suffered as a result of the publication of his alleged failure to pay.  
Mr. Wilson must establish a sufficient causal link to the damage or loss he suffered.  
[761] The evidence on the damages that directly flowed only from the publication of  
the alleged failure to pay was thin.  
[762] Mr. Wilson testified that on account of the publication of the debt allegations  
he suffered embarrassment in his community of West Vancouver and with his  
colleagues in Ottawa. He experienced people “turning away” and the debt issue was  
raised when he campaigned in the 2008 federal election. He also related to the  
Court that he was asked by a contractor, who had read the media articles, to pay the  
entire purchase price upfront before he would begin a construction project on  
Mr. Wilson’s house in Kelowna.  
[763] Balancing the evidence as a whole, I am satisfied that Mr. Wilson, a sitting  
Member of Parliament at the time of the publications, suffered anxiety, humiliation  
and social shunning from the publication of his alleged failure to pay. The evidence  
establishes that the publication of Mr. Wilson’s alleged failure to pay was widely read  
and publicized. I accept that it damaged his reputation to some degree. However, I  
am not persuaded that Mr. Wilson is entitled to any compensation for the loss of  
income as a Member of Parliament. His loss of income was not the natural and  
probable consequence of the contravention of the BPCPA. I reach this conclusion  
Lougheed Estate v. Wilson  
Page 190  
for the same reasons I awarded no loss of income in my assessment of damages for  
the defamation.  
[764] In all the circumstances I award Mr. Wilson $50,000 for the contravention of  
the s. 114 of the BPCPA.  
[765] Mr. Wilson also seeks aggravated and punitive damages.  
[766] I am not persuaded that a breach of the BPCPA could give rise to punitive  
damages. As I stated earlier, Mr. Wilson is limited to the remedies provided in  
s. 171: Koubi at para. 65. Recovery is limited to compensatory damages for the  
damage or loss arising from the contravention of the BPCPA. The objectives of  
punitive damages are achieved in the BPCPA through the provisions that permit  
administrative penalties, and are not available through s. 171.  
[767] Counsel provided the Court with no authority on whether aggravated  
damages would be available under the BPCPA. Even if they were, and without  
explicitly ruling on the point, in this case there is an inadequate evidentiary  
foundation to support such an award. At his examination for discovery,  
Mr. Lougheed testified that he wanted to disclose to the public that Mr. Wilson was  
not the successful person he portrayed himself to be. Additionally, I accept Lynda  
Lougheed’s testimony to the effect that her father wanted Mr. Wilson to be  
accountable and for the public to know that Mr. Wilson, as an elected representative,  
had not portrayed himself accurately. In determining this issue I have not overlooked  
the testimony of Patricia Morrison, Norma’s sister, that shortly after Norma’s death  
Mr. Lougheed indicated that he would “grind” the Wilsons into the ground. Crucially,  
however, due to his death, Mr. Lougheed did not testify at trial. Thus he had no  
opportunity to testify and be cross-examined at trial regarding his motivations for  
publicizing Mr. Wilson’s alleged failure to pay.  
[768] All things considered, I conclude that in the circumstances it would be unjust  
to make a finding that Mr. Lougheed acted in a high-handed, dishonest or morally  
Lougheed Estate v. Wilson  
Page 191  
reprehensible way, which is an essential pre-requisite for an award of aggravated  
damages: Feldstein v. 364 Northern DevelopmentCorporation, 2017 BCCA 174.  
Claim against the Canwest defendants and Ms. Tyabji  
[769] Mr. Wilson also pursues a claim against the Canwest defendants and  
Ms. Tyabji for contravention of s. 114 of the BPCPA. For the reasons that follow I  
conclude that there is no legal or evidentiary foundation to support Mr. Wilson’s  
assertions.  
[770] I turn first to address the claim against the Canwest defendants.  
[771] As I stated earlier to be liable under the BPCPA one must be a “collector” as  
defined in s. 113. I accept Ms. O'Connor’s testimony that at no time was she  
engaged in attempting to collect a debt on behalf of Mr. Lougheed or any other  
person. Her evidence on this point was not challenged on cross-examination. She  
presented Mr. Lougheed’s allegations of the indebtedness to Mr. Wilson prior to the  
publication of the Article in the discharge of her responsibilities as a journalist. I  
reject the notion that by virtue of such conduct Ms. O’Connor was “collecting or  
attempting to collect” a debt.  
[772] Mr. Wilson has failed to prove on balance that Ms. O’Connor or any of the  
Canwest defendants were ever collecting or attempting to collect a debt.  
[773] I turn to the debt claim against Ms. Tyabji.  
[774] Although it is difficult to discern on the face of his pleading, Mr. Wilson  
contends that by publishing the Anonymous Letter Ms. Tyabji was publishing a  
“debtor’s failure to pay” within the meaning of s. 114(2)(c) and that her conduct  
constituted harassment for the purpose of s. 114. I agree with Madam Justice  
Newbury’s observation in Lougheed v. Wilson, 2009 BCCA 537 that “this is an  
extremely long bow”. In any event, I have found that Ms. Tyabji had no involvement  
whatsoever with either the preparation or the distribution of the Anonymous Letter.  
 
Lougheed Estate v. Wilson  
Page 192  
Moreover, and crucially, there is no evidentiary basis to support the assertion that  
Ms. Tyabji ever collected or attempted to collect a debt from Mr. Wilson.  
[775] I conclude that Ms. Tyabji was clearly not a “collector” under the BPCPA and  
the claim against her under s. 114 of the BPCPA must fail.  
[776] I reject Mr. Wilson’s submission that any of Ms. Tyabji or the Canwest  
defendants provided “material support” to a collector, namely, Mr. Lougheed. Even if  
there was an evidentiary foundation for such a finding, a claim for providing material  
support to a collector is not actionable under the BPCPA.  
[777] In summary, I find that neither Ms. Tyabji nor any of the Canwest defendants  
satisfy the definition of collector under the BPCPA. Accordingly, pursuant to the  
provisions of s. 171, no damages can be recoverable against them.  
[778] The claim under s. 114 of the BPCPA against the Canwest defendants and  
Ms. Tyabji is dismissed.  
DEBT CLAIM AGAINST MR. WILSON  
[779] These proceedings were commenced in 2008 as an action in debt.  
Mr. Lougheed personally, and in his capacity as executor of the will of Norma  
Lougheed, and as principal of Norbill Investments initiated this debt action against  
Mr. Wilson and his wife Kelly. The original debt action was resolved almost entirely  
by discontinuances and by separate trial of the claims against Kelly.  
[780] There remains outstanding the claim of Norma’s estate against Mr. Wilson for  
the repayment of $6,000. Shortly before the trial of the Counterclaim Mr. Lougheed  
sought to discontinue the claim. Mr. Wilson opposed the discontinuance.  
Mr. Lougheed ultimately did not discontinue his claim. However, counsel informed  
the Court that the Lougheed defendants would call no evidence on the point.  
[781] On the totality of the evidence, I find that the Lougheed defendants have not  
proved on a balance of probabilities that Mr. Wilson owed Norma's estate $6,000.  
The claim is dismissed.  
 
Lougheed Estate v. Wilson  
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SUMMARY  
[782] In summary:  
a)  
b)  
the publications, as detailed above, were defamatory of Mr. Wilson;  
general damages in the amount of $125,000 in favour of Mr. Wilson  
are assessed against the Canwest defendants jointly and severally;  
c)  
d)  
e)  
f)  
general damages in the amount of $15,000 in favour of Mr. Wilson are  
assessed against Mr. Janke;  
Mr. Wilson’s claims against Ms. Tyabji and Tugboat are dismissed in  
their entirety ;  
the claim in defamation against Mr. Lougheed did not survive his  
death;  
damages in the sum of $50,000 in favour of Mr. Wilson are assessed  
against Balwinder K. Lougheed, in her capacity as litigation  
representative for Mr. Lougheed’s estate for breach of s. 114 of  
BPCPA;  
g)  
h)  
the claims under the BPCPA against the Canwest defendants and Ms.  
Tyabji are dismissed;  
to the extent any claims were plead against Norbill Investments or Mr.  
Lougheed as the representative of Norma’s estate, those claims are  
dismissed; and  
i)  
the Lougheed defendants’ claim against Mr. Wilson for $6,000 is  
dismissed.  
COSTS  
[783] Finally there is the matter of costs. The parties have leave to address the  
issue of costs following the release of these Reasons. The parties should estimate  
   
Lougheed Estate v. Wilson  
Page 194  
the length of time required to address the issue of costs and contact Supreme Court  
Scheduling to schedule a hearing.  
“The Honourable Madam Justice Dardi”  
Lougheed Estate v. Wilson  
Page 195  
Schedule A  
Lougheed Estate v. Wilson  
Page 196  
Lougheed Estate v. Wilson  
Page 197  
Lougheed Estate v. Wilson  
Page 198  
Lougheed Estate v. Wilson  
Page 199  
Lougheed Estate v. Wilson  
Page 200  
Lougheed Estate v. Wilson  
Page 201  
Lougheed Estate v. Wilson  
Page 202  
Lougheed Estate v. Wilson  
Page 203  
Lougheed Estate v. Wilson  
Page 204  
Schedule B  
Lougheed Estate v. Wilson  
Page 205  
Lougheed Estate v. Wilson  
Page 206  
Schedule C  
Lougheed Estate v. Wilson  
Page 207  
Lougheed Estate v. Wilson  
Page 208  
Lougheed Estate v. Wilson  
Page 209  
Lougheed Estate v. Wilson  
Page 210  
Lougheed Estate v. Wilson  
Page 211  
Lougheed Estate v. Wilson  
Page 212  
Lougheed Estate v. Wilson  
Page 213  
Lougheed Estate v. Wilson  
Page 214  
Lougheed Estate v. Wilson  
Page 215  
Lougheed Estate v. Wilson  
Page 216  
Schedule D  
Lougheed Estate v. Wilson  
Page 217  
Lougheed Estate v. Wilson  
Page 218  
Lougheed Estate v. Wilson  
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