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  
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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  
Lougheed Estate v. Wilson  
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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 Lougheedsprivate 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 sources  
identity confidential. Our Court of Appeal held that Ms. OConnor 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 Wilsonsoutstanding 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. OConnor 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 chargeswere 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. Wilsons 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. Wilsons 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-Tuins 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  
Committeeand 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. Crawfords 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  
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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.  
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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; revd 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.  
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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.