IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141008

Docket: 47747

Registry:
Kamloops

Between:

Ray
Prokorym

Plaintiff

And

Robert
Turpin

Defendant

Before:
The Honourable Mr. Justice Meiklem
in Chambers

Reasons for Judgment

Introduction

[1]            
The plaintiff applied for a summary trial of the issues in this defamation
action, pursuant to Rule 9-7 (2) of the Supreme Court Civil Rules. The
defendant did not challenge the suitability of the matter for a summary trial.
As the following summary of the facts will reveal, the only remaining issue at
the conclusion of the hearing was the assessment of damages. The plaintiff
seeks general damages, aggravated damages, punitive damages and special costs.

Factual Background

[2]            
The plaintiff is a sales manager for Ocean Alexander Marine Yacht Sales
Inc. (“Ocean Alexander”) with a business location in or near Seattle,
Washington. In December 2011, the defendant, a resident of 100 Mile House in
British Columbia, purchased a used 64-foot yacht from the plaintiff for
$1,160,000.

[3]            
After taking possession of the yacht, the defendant realized that some
of the windows were defective in that the weather sealing had failed, rendering
the boat unseaworthy according to the defendant. The defendant also had
complaints about the service provided by Ocean Alexander and their treatment of
him at the time of the sale.

[4]            
In April 2012, following unspecified oral negotiations, the plaintiff
sent the defendant an e-mail advising that the windows had been a customer
order when the boat was sold new, and the window manufacturer would not provide
a warranty due to the age of the boat. The plaintiff extended a “good faith”
offer on behalf of Ocean Alexander to split the cost of replacing two front
windows, stating that he had an estimate of $11,000.

[5]            
The defendant, who claims he needed to replace seventeen windows on the
yacht, was very dissatisfied with this response and, on May 21, 2012, sent an
e-mail to the plaintiff and three other individuals at Ocean Alexander, stating
the following:

IMPORTANT MESSAGE PLEASE READ
THIS

We have a sex offender amongst us. After many weeks of
investigation I have uncovered some disturbing information about Ray Prokorym, …Sales
Manager for Ocean Alexander, Seattle Wash. … and Newport Beach Cal. … Being
the father of a sexually molested child by a neighbour, I feel compelled to
share this information with you. Ray Prokorym was charged with sexually abusing
a 14 year old boy, he was charged with sexual assault of a minor in May 2001,
in Sparks Nevada. He pled guilty in June 2002 and was given a two year
suspended sentence. NOT ENOUGH! This is not      the kind of man or company I
would like to buy a boat from. I would prefer to deal with a man and company
that has some [integrity].

Very best regards,

Concerned Citizen, Bob

[6]            
In a separate e-mail to the same people approximately 40 minutes later
on May 21, 2012, the defendant, clearly referring to the earlier message, said:

…two days from now the message
will be sent to every yacht brokerage, yacht broker and marine supplier that has
an e-mail address or fax # in every yachting magazine I can find, then to every
school and church in the Seattle Area.

[7]            
The defendant also said he would display a banner on his boat describing
the plaintiff as a liar, cheat and thief and expressing the Ocean Alexander
motto of Let the Buyer Beware.

[8]            
On May 23, 2012, Mr. Wishko, an attorney for Ocean Alexander, sent a
letter via e-mail to the defendant advising him that the information he was
threatening to disseminate was false and potentially harmful, and he urged Mr.
Turpin to reconsider his intention to proceed with a defamatory campaign and to
“explore a preferable way of resolving this dispute to the parties mutual
satisfaction.”

[9]            
On May 31, 2012, the defendant replied to Mr. Wishko by e-mail with copies
to the plaintiff and to two others at Ocean Alexander as follows:

Just thought I’d give you another
heads up. I am sitting on my boat as I type, admiring my shattered window, it
will make good show and tell. I am leaving for 3-4 months on Wednesday.
Regarding the last paragraph of your “oh so scary letter” exploring a
resolution to this dispute to both parties satisfaction, I presume your
response is the same as Richard A and Ray P to “suck it up Bob”. NOT GOING TO
HAPPEN! I spent $1300.00 on these signs so they will be displayed starting at
Poets Cove, Canada Customs and for the duration of my holidays up and down the
west coast of BC. If you haven’t started proceedings against me yet, you best
be getting started, unless you would like to explore a preferable way of
resolving this dispute.

[10]        
This e-mail included as an attachment a photograph of a professionally
prepared sign setting out what the defendant had threatened in his May 21, 2012
e-mail.

[11]        
On June 6, 2012, Mr. Wishko sent another letter to the defendant via
e-mail referring to subsequent telephone conversations and exchanges of e-mails
and setting out his client’s denial of legal liability, but increasing his
previous offer by the waiver of an invoice for $5,292.96 for the installation
of an autopilot.

[12]        
Negotiations between the defendant and Mr. Wishko continued in June
2012, with the defendant seeking approximately $30,000 in compensation and
Ocean Alexander declining to increase their offer.

[13]        
On June 22, 2012, the defendant sent an e-mail to the plaintiff and the
attorney for Ocean Alexander attaching pictures of the yacht windows and including
the following statement:

This will be a very costly,
messy, and publicized event if you choose to proceed through the legal system,
I will not stop at any cost or until I am dead. Will be back in Internet
service in 2 days and at that time, enough is enough, I will press send.

[14]        
Mr. Wishko’s June 25, 2012 response was a single line advising Mr.
Turpin that Ocean Alexander’s previous offer would cover the cost of replacing
the front windows and that the offer remained open.

[15]        
The next communication was a telephone call from the defendant to Mr.
Wishko on September 13, 2012, inquiring if Ocean Alexander had anything
additional to offer. Mr. Wishko told the defendant that his client was unable
to meet his demands and had nothing more to offer. Mr. Wishko ‘s affidavit,
sworn July 30, 2014, asserts that within one minute of that telephone call
ending, he received the e-mail exhibited to his affidavit, which appears to be
a forwarding of the first May 21, 2012 e-mail referred to in para. 5 of these
reasons, setting out the allegations of the plaintiff being a convicted
pedophile. The header of the e-mail Mr. Wishko received on September 13, 2012
lists approximately 36 other e-mail addresses, primarily of the type:
info@____yacht(or yacht sales).com.

[16]        
Approximately one hour after Mr. Turpin sent the September 13 e-mail to
Mr. Wishko (and others, assuming the header was genuine and capable of
supporting that inference), Mr. Wishko sent a letter by e-mail to the same list
of apparent addressees, advising them that Mr. Turpin was a disgruntled former
customer and his allegations were completely false and Ocean Alexander would be
pursuing all civil and criminal remedies available.

[17]        
Mr. Wishko’s affidavit also appends a copy of a subsequent e-mail with
the same “Important Message” text that was apparently sent by Mr. Turpin on
September 15, 2012, to a list of 23 e-mail addresses, some of whom I note were
also included in the September 13 e-mailing. The defendant did not carry out
his threat to send the e-mail to churches and schools.

[18]        
The sign, or banner as it was referred to, was never displayed. The
defendant’s pleadings admitted the falseness of the defamatory publication in
the e-mails, but denied that the allegations in the banner were false or
without merit, asserting that the plaintiff misled him as to the quality of the
yacht and as to the extent to which Ocean Alexander would remedy defects
discovered after completion of the purchase. Mr. Turpin’s affidavit sworn
September 15, 2014 states at paragraph 7:

I very clearly remember shaking
hands with him as we concluded the purchase deal and listening to him as he
told me that ‘if there is anything wrong, we will make it right.”

There is no evidence disputing the truth of that averment.

[19]        
The plaintiff’s pleadings do not allege that sending the photograph of
the threatened sign as an attachment to the May 21, 2012 e-mail to two other
employees of Ocean Alexander constituted a separate defamatory publication. I
glean from the plaintiff’s submissions that the preparation and threatened use
of the banner should be considered as aggravating circumstances in assessing
damages.

[20]        
Initially the defendant pointed out that the evidence relied on to prove
publication of the admittedly false and defamatory statements by e-mail
communications was based on information and belief, but at the close of the
plaintiff’s submissions, the defendant conceded that he did not dispute that
some of the people and businesses listed in his e-mail headers probably did
receive the defamatory publication. This concession was important to the
plaintiff’s success in establishing publication, because there was no direct
evidence of publication and I doubt that the fact of multiple addressees
appearing in the header of an e-mail received by one addressee would adequately
support an inference that the other addressees were genuine and that one or
more of those additional persons did in fact receive the e-mail.

[21]        
In his September 15, 2014 affidavit, Mr. Turpin explained why he did not
previously confirm or deny sending the threatened e-mail:

3.         …As  I testified during my
examination for discovery, I cannot confirm that I sent these e-mails or deny
sending them because I was intoxicated or otherwise under the influence of some
form of painkiller at relevant times. When I realized that I had caused my
family to spend approximately $1.3 million on a boat which the family could not
afford and which was defective, it sent me into a tailspin, psychologically
speaking, of alcohol and drug abuse from which I only started to emerge within
the past few weeks after two months of rehabilitation.

[22]        
His affidavit also states that the family’s planned fishing charter
business failed because he and his daughters could not afford to replace the
windows to make the yacht seaworthy enough to pass Canadian Coast Guard
inspection and the yacht was sold at a loss of $200,000.

[23]        
At this hearing, the defendant expressed remorse and apologized to the
plaintiff and “everyone else” for his behaviour, including his daughters who he
stated were the de facto purchasers of the yacht, which had been purchased with
their funds, he having assigned into bankruptcy in 2005. He stated that he had
wanted to express an apology earlier and had tried to do that in the course of
this action but was afraid to do so in light of the plaintiff’s threat to
initiate a criminal investigation, and a concern that an apology would be
construed as an admission which would form the basis of criminal charges.

[24]        
The plaintiff or Ocean Alexander did make a criminal complaint which has
initiated an investigation by the RCMP which is still underway.

General Damages

[25]        
In defamation cases, general damages are presumed from the publication
of a false statement and are awarded at large: Hill v. Church of Scientology,
[1995] 2 S.C.R.1130 at para. 164. Thus, the plaintiff is entitled to damages,
even in the absence of proven loss or injury.

[26]        
In Hill, the Supreme Court of Canada summarized the basic factors
to consider in assessing damages in a libel case at para. 187:

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

[27]        
In an earlier passage in the Hill decision, at para. 166, the
court made reference to a feature that is common to many defamation cases:

…A defamatory statement can seep
into the crevasses of the subconscious and lurk there ever ready to spring
forth and spread its cancerous evil. The unfortunate impression left by a libel
may last a lifetime. Seldom does the defamed person have the opportunity of
replying and correcting the record in a manner that will truly remedy the
situation.

[28]        
Fortunately the plaintiff in this case did have the opportunity of
replying and correcting the record, due to the known and limited extent of the
e-mail publication and the very fast responses of Mr. Wishko. His response was
so immediate that one could infer that it would seep into the subconscious
virtually contemporaneously with the defamatory publication. Addressed, as many
of the defamatory e-mails were, to yacht business reply addresses of the style
“info@_____.com”, it is likely that some of the recipients read Mr. Wishko’s
explanatory letter at the same sitting as they read the defamatory e-mail which
preceded it by approximately one hour.

[29]        
This fortunate mitigation probably ensured that there will be
negligible, if any, effect upon the life or reputation of the plaintiff,
particularly considering that all the apparent recipients were other yacht
businesses, and very likely, in my view, to have readily accepted the truth of
Attorney Wishko’s explanation of context and characterization of the anonymous
defamatory e-mail, and completely disregarded the latter.

[30]        
Nonetheless, the nature and circumstances of the publication of the
libel and the actions and motivations of the defendant are quite egregious on
their face. Mr. Turpin was clearly trying to effect a favourable settlement of
his dispute over the yacht transaction by threatening to publish a completely
fabricated allegation of the most despicable criminal offence he could think of.
He maintained an intransigent negotiating position and then partially carried
through with his threatened publications in a fit of pique, when the plaintiff
refused to meet his demands. These are aggravating circumstances that I will
take into account in assessing general damages.

[31]        
Also relevant to the general damages assessment in a defamation case is
the conduct of the defendant through to the end of the trial and whether or not
there has been a retraction or an apology. As previously mentioned, the
defendant readily acknowledged the falsity of his publication in his initial
pleadings, and his acknowledgement of publication at this summary trial was
essential to the plaintiff’s success. Although he did not retract or apologize
in a timely fashion, or at the earliest opportunity, the plaintiff’s action in
initiating a criminal investigation contemporaneously with this civil action
clearly created a situation of extra jeopardy for the defendant. In this
circumstance I would not consider the absence of a retraction or apology as
demonstrating persisting malice or lack of remorse or other form of aggravating
factor. The defendant’s apology and expression of remorse at the summary trial
was genuine.

[32]        
Counsel for the plaintiff has referred me to numerous awards in other
cases. I find the most comparable cases to be Smith v. Cross, 2007 BCSC
1757 and Nesbitt v. Neufeld, 2010 BCSC 1605. In Smith, the
general damages award was $25,000, and in Nesbitt the award was $40,000
for defamation and breach of privacy. The significantly larger awards usually
occur in cases involving broad media publication or significant and
long-lasting harm to the reputation of particular plaintiffs. It is interesting
to note that in para. 169 in Hill, Cory J. stated:

…From 1987 to 1991, there were
only 27 reported libel judgments in Canada, with an average award of $30,000.
Subsequent to the decision in this case, from 1992 to 1995, there have been 24
reported libel judgments, with an average award of less than $20,000.

[33]        
These statistics were cited in the course of discussing the appropriateness
of a cap on general damages and, of course, even less can be gleaned from
averages than from a detailed comparison of other cases.

[34]        
Considering all the circumstances of this case, I assess general damages
at $30,000.

Aggravated Damages

[35]        
There is a thorough discussion of the general principles applicable in
respect of aggravated damages at paras. 188-191 in Hill. I note that
discussion treats aggravated damages as a distinct head of damages, without
specific reference to the Ontario Court of Appeal’s comments on that question
in the same case which are quoted at para. 80 in Brown v. Cole (1998),
61 B.C.L.R. (3d) 1 (BCCA). In Brown, Southin J.A. reviews, at paras.
79-100, the history of how the phrase “aggravated damages” came into the law.
Southin J.A. was primarily concerned with avoiding double counting in
attempting to define the components of separate categories of compensatory
damages, and expressed her opinion that there was a “real fusion and confusion”
in actions for defamation in the two apparent categories of compensatory
damages. A distinction is necessary in a case such as Hill, where there
is more than one defendant and one might be liable for conduct that the other
is not liable for.

[36]        
In assessing general damages, I have considered and taken account of how
the spiteful and high-handed conduct of the defendant probably affected the
plaintiff’s feelings, over and above the damage from the defamatory publication
itself. In my view, it is unnecessary and it would be difficult and artificial
to divide the compensatory damages into two elements in this case. There will
not be a separate award for aggravated damages.

Punitive Damages

[37]        
The Supreme Court of Canada in Hill reviewed the general
principles with respect to punitive damages at para. 196:

Punitive damages may be awarded
in situations where the defendant’s misconduct is so malicious, oppressive and
high-handed that it offends the court’s sense of decency. Punitive damages bear
no relation to what the plaintiff should receive by way of compensation. Their
aim is not to compensate the plaintiff, but rather to punish the defendant. It
is the means by which the jury or judge expresses its outrage at the egregious
conduct of the defendant. They are in the nature of a fine which is meant to
act as a deterrent to the defendant and to others from acting in this manner.
It is important to emphasize that punitive damages should only be awarded in
those circumstances where the combined award of general and aggravated damages
would be insufficient to achieve the goal of punishment and deterrence.

[38]        
Applying those principles to the circumstances of this case, I find that
the defendant’s misconduct was sufficiently malicious and oppressive to warrant
punitive damages and I assess punitive damages at $10,000.

Costs

[39]        
The plaintiff submits that he is entitled to special costs given the
reprehensible conduct of the defendant.

[40]        
I note that of the defamation cases cited during submissions, the case
of Nesbitt resulted in an award of special costs on the basis that the
defendant maliciously and relentlessly made groundless claims in the
proceedings designed to humiliate the plaintiff and force her to acknowledge
him. This was found to be reprehensible conduct deserving of the court’s
reproof or rebuke. The special cost award did not relate to conduct giving rise
to the cause of action for which damages of $40,000 were awarded. No award of
punitive damages was made.

[41]        
In Newman v. Halstead, 2006 BCSC 65, Dorgan J. considered the
defendant’s conduct giving rise to the action malicious and oppressive and
deserving of rebuke and found that her refusal to participate in the trial
process thwarted the plaintiffs’ efforts at seeking vindication. The court
awarded punitive damages in the amount of $50,000 to be shared by several
plaintiffs, but awarded only ordinary costs.

[42]        
In Smith, the defendant’s conduct drew an award for punitive
damages, but ordinary costs were awarded.

[43]        
The authorities are clear that the reprehensible conduct giving rise to
discretion to award special costs can be either in the circumstances giving
rise to the cause of action or in the proceedings. However, where the cause of
action is defamation and the court has already assessed compensatory damages
taking into account circumstances to the end of the trial and then punished the
defendant for the reprehensible conduct giving rise to the cause of action with
an award of punitive damages, any further rebuke by way of special costs,
should, in my view, only apply to the defendant’s conduct in the proceedings.
If that were not the case, there would be a “double counting”.

[44]        
Examining the history of the proceedings set out in the August 13, 2014
affidavit of Mr. McDougall’s legal assistant, the only potentially
reprehensible conduct alluded to is that Mr. Turpin failed to attend five
appointments for examination for discovery between January 11, 2013 and
February 6, 2014, and offered a variety of explanations for being unable to
attend. He was represented by counsel during that period and the evidence
includes counsel’s letters and medical letters regarding those non-attendances.
Eventually counsel for the defendant consented to an order for an attendance on
May 28, 2014, and payment of costs by the defendant in the amount of $615.

[45]        
There is insufficient evidence before me of reprehensible conduct in the
proceedings that would call for a rebuke from the court in the form of an award
of special costs.

[46]        
The plaintiff is entitled to costs on the scale of ordinary difficulty.

“I.C. Meiklem J.”

MEIKLEM J.