IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150914

Docket: S145803

Registry:
Vancouver

Between:

British Columbia
Recreation and Parks Association and
Suzanne Strutt

Plaintiffs

And

John Zakharia and
Jane Doe

Defendants

Before:
The Honourable Mr. Justice Funt

Reasons for Judgment

I.                
introduction

[1]            
The defendant, Mr. Zakharia, is a personal trainer. Using the internet, Mr. Zakharia,
has malevolently attacked the plaintiffs, British Columbia Recreation and Parks
Association (“BCRPA”) and Mrs. Strutt, defaming each of them by accusing
them of extorting money from him, bullying him, and otherwise victimizing him.
None of the attacks had a skerrick of truth.

[2]            
Mr. Zakharia has caused Mrs. Strutt mental distress in
addition to defaming her.

[3]            
Mr. Zakharia’s pleas of justification (truth), fair comment, and
responsible communication, all fail. Mr. Zakharia chose not to testify as
part of his defence. Mr. Zakharia appears to be of the view that as a
result of his right of free expression he can conduct himself in the manner he
has. The law is not such.

[4]            
Mr. Zakharia’s statements were also calculated to cause persons not
to deal with BCRPA.

[5]            
Mr. Zakharia has used, without permission, the trade-mark that BCRPA
used for its annual fitness conference, thereby reducing the value of its trade-mark.

[6]            
In addition, Mr. Zakharia has made false or misleading
representations to the public that he is certified, registered or otherwise
authorized by BCRPA for the purpose of promoting his own business interests.

[7]            
Lastly, Mr. Zakharia conspired with Jane Doe to injure BCRPA and Mrs. Strutt
by harming the reputations of each of them and the goodwill or standing each
enjoys in the community.

[8]            
Mr. Zakharia counterclaimed seeking damages, pleading a conspiracy
to injure him that “breached a standard of duty of care either intentionally or
negligently”.

[9]            
As set forth below, BCRPA is awarded $106,000 in damages. Mrs. Strutt
is awarded $115,000 in damages.

[10]        
Mr. Zakharia’s counterclaim is dismissed.

[11]        
The plaintiffs will be granted a permanent injunction and may speak to
costs.

II.              
pleadings

[12]        
In their July 28, 2014 notice of civil claim, the plaintiffs have
pleaded in detail the facts on which they rely.

[13]        
In his amended response, Mr. Zakharia denied each of the
plaintiffs’ pleaded facts. He pleaded that the plaintiffs had offered a
“quasi-apology”. He also pleaded that the plaintiffs’ claims are based on
“factious and exaggerated statements”. As noted, he pleaded justification
(truth), fair comment and responsible communication.

[14]        
In his counterclaim, Mr. Zakharia pleaded that the plaintiffs “engaged
in a hostile conspiracy to injure” him.

[15]        
As a result of Mr. Zakharia’s denial of the plaintiffs’ pleaded facts
(although some admissions were made at trial) and the fact that he chose not to
testify, I will first set forth below the plaintiffs’ pleaded facts.

Part 1: STATEMENT OF FACTS

1.              
The British Columbia Recreation and Parks Association (the “BCRPA”) is a
not for profit organization, and has an address for service at 2900 – 595 Burrard
Street, Vancouver, British Columbia.

2.              
Suzanne Strutt (“Strutt”) is the Chief Executive Officer of the BCRPA,
and has an address for service at 2900 – 595 Burrard Street, Vancouver, British
Columbia.

3.              
The defendant, John Zakharia, also known as Johnny Zakharia, Johnny
Zakhariah and Johnny Zacharia (“Zakharia”), is an individual with an
address for service at [the Court’s deletion].

4.              
The defendant, Jane Doe is a person whose name and address are unknown
to BCRPA. Jane Doe appears in multiple of videos posted by Zakharia or his
agents on Youtube.com.

BCRPA
Fitness Registration Program

5.              
The BCRPA offers a program for fitness professionals in British Columbia
(the “Fitness Registration Program”), which registers individuals who have
completed certain theoretical and practical training with third party
companies. Individuals who become registered with the Fitness Registration
Program, and are referred to as “fitness leaders”.

6.              
The Fitness Registration Program is a listing of all fitness
professionals who have met the standards required to be registered with the
BCRPA, including adherence to the BCRPA’s Fitness Program Terms and Conditions
of Registration (the “Registration Terms and Conditions”) and its Code of
Ethics (the “Code”).

7.              
Individuals who wish to be registered in the Fitness Registration
Program attend training courses on various fitness leadership skills, such as
weight training, group fitness and personal training, through companies that
are unrelated to BCRPA.

8.              
The Fitness Registration Program requires prospective fitness leaders to
register initially in fitness theory. This registration lasts one year; it
provides for insurance coverage while the registrant pursues certification for
specialty designations. After this one year registration period the fitness
leader must renew his or her registration every two years. Any fitness leader
who allows his or her registration to expire is charged a late fee upon renewal
of registration. The Registration Terms and Conditions and the terms and
conditions of renewal of registration is available to the public on BCRPA’s
website at:

a)              
http://bcrpa.bc.ca/fitness_program/registration/renewal_
information/expired_registration.htm; and

b)              
http://bcrpa.bc.ca/fitness_program/registration/renewal_
information/fitness_leader.htm.

9.              
Registration fees and late fees charged by the BCRPA (the “Renewal Fees”)
are used to pay overhead, wages and insurance premiums for registered members.
The BCRPA does not waive the Renewal Fees for any prospective or current
registrant.

10.           
Registration through the BCRPA is a voluntary process. An individual
need not be registered with the BCRPA in order to provide fitness training
courses to the public.

BCRPA Registration of Zakharia

11.           
Zakharia applied for and was granted a one-year fitness theory
registration with the BCRPA on March 20, 2013. At the same time, Zakharia
agreed to abide by the Registration Terms and Conditions, which all registrants
are required to read and accept before the BCRPA will register the individual
as a fitness leader.

12.           
By agreeing to the Registration Terms and Conditions, Zakharia agreed
to, inter alia, the following terms:

a)              
That he acknowledges and accepts the conditions of BCRPA Fitness Leader
registration, the registration process, and all other policies and procedures;

b)              
That he agrees with and will adhere to the BCRPA Fitness Registration
Program, Code of Ethics, Code of Conduct and Disciplinary Process; and

c)              
That he has read this agreement in its entirety and has executed the
agreement voluntarily

 (the “Agreement”)

13.           
The BCRPA sent email notifications to Zakharia to remind him to renew
his membership on January 3, 2014 and March 7, 2014.

14.           
As of March 21, 2014, Zakharia had failed to renew his membership
with the BCRPA.

15.           
On April 20, 2014 the defendant sent an email to Strutt asking that
the Renewal Fees be waived or reduced.

16.           
On May 5, 2014, the BCRPA advised the defendant that it was unable
to waive or reduce the Renewal Fees. In response to emails from the defendant
asking again that the Renewal Fees be waived or reduced, on May 7, 2014
the BCRPA confirmed again that it could not waive the Renewal Fees, and that
the defendant would be required to sign the BCRPA’s Code of Conduct upon
renewing his registration.

17.           
On or around May 7, 2014, the BCRPA froze the defendant’s online
account with the BCRPA as a result of the defendant’s failure to renew his
registration with the BCRPA and discovery of public comments about individuals
associated with the BCRPA.

18.           
On the same day, May 7, 2014, the BCRPA advised the defendant that
if he wished to pay his Renewal Fees and sign the BCRPA Code, he could attend
the BCRPA offices to do so until 4:30 p.m. that day or during business hours on
subsequent days.

19.           
On the same day, May 7, 2014, Zakharia and the BCRPA signed an
agreement with the following terms and conditions:

a)              
Zakharia agreed to adhere to the Code, including:

i)                
being forthright in all dealings with the public and acting in the best
interests of the public’s well-being;

ii)               
treating all people equally and with respect for human dignity;

iii)             
preserving the credibility and dignity of colleague and associates by
exhibiting professionalism in all situations; and

iv)             
complying with the spirit of all applicable business, employment and
copyright laws and regulations;

b)              
the defendant acknowledged that the purpose of the Code is to provide an
environment in which BCRPA stakeholders are treated with respect;

c)              
the defendant acknowledged that conduct that violates the Code is
subject to disciplinary measures by the BCRPA; and

d)              
the defendant acknowledged that he has read the registration agreement
and executed the agreement voluntarily

(the “Renewal
Agreement”).

20.           
Upon signature of the Renewal Agreement and payment of the Renewal Fees,
the BCRPA renewed the defendant’s registration and reactivated his online BCRPA
account on or around May 7, 2014.

21.           
On May 13, 2014, the BCRPA became aware that the defendant had
acted contrary to the Code by disparaging an organization associated with the
BCRPA on a blog he had created. The BCRPA received no response to its request
for an explanation from the defendant about the blog posting.

22.           
On May 14, 2014, the defendant alerted the BCRPA to the existence
of a website he had created at www.BCfit.ca (the “BCfit
Website”).

23.           
Due to Zakharia’s continuing violation of the
Code, the Agreement, the Renewal Agreement and infringement of the BCRPA’s trade-mark,
the BCRPA expelled Zakharia from membership in the Fitness Registration Program
and refunded all fees paid by Zakharia to the BCRPA.

Trade-mark
infringement by Zakharia

24.           
BCRPA is the registered owner of a trade-mark
consisting of the word BCFIT, registered on the Canadian Trade-marks Registry
on or around May 23, 2014 as No. 1678300 for use in Canada in
association with the services of the BCRPA, namely, “developing, arranging and
conducting educational conferences and programs and providing courses of
instruction in the fields of physical activity, recreation and health” (the “Services”).

25.           
By reason of the registration under the Trade-marks
Act, R.S.C. 1985, c. T-13 (the “Trade-marks Act”), and pursuant
to section 19 of the Act, BCRPA is entitled to the exclusive use throughout
Canada of the trade-mark in association with the Services.

26.           
By reason of the use of BCFIT in Canada since
2009, the public in British Columbia have come to recognize the word BCFIT as
being distinctive and as distinguishing the services of BCRPA from the services
or business of others, and there is goodwill or a reputation attached to those
services and business in the mind of the public in British Columbia.

27.           
Zakharia has infringed the BCRPA’s rights in the
trade-mark without the consent of the BCRPA by, inter alia:

a)              
Operating and maintaining a website at www.BCfit.ca (the “BCfit Website”)
displaying the infringing mark and name;

b)              
Creating and using an email account displaying
the infringing mark and name; and

c)              
Creating an Instagram account displaying the
infringing mark and name.

28.           
By reason of the activities set out in the preceding
paragraph, Zakharia is:

a)              
Infringing BCRPA’s rights in its registered trade-mark
No. 1678300 contrary to s. 19 of the Act and the BCRPA also pleads
s. 4 of the Act;

b)              
Deemed to infringe BCRPA’s rights in its
registered trade-mark No. 1678300 contrary to s. 20 of the Act and
BCRPA also pleads s.6 of the Act.

c)              
Passing off and continuing to pass off his
services or business as and for those of BCRPA.

29.           
Zakharia continues to operate and maintain the
BCfit Website after receiving formal notification that BCRPA was unwilling to
tolerate further infringement by letter from BCRPA’s solicitor dated June 4,
2014 delivered to Zakharia by registered mail.

30.           
Zakharia has refused to discontinue the acts
complained of, and intends to continue and repeat the infringements and passing
off of BCRPA’s trade-mark.

31.           
By reason of the acts of Zakharia, BCRPA has
suffered loss and damage in the form of loss of goodwill and depreciation of
BCPRA’s goodwill in its trade-mark.

32.           
BCRPA pleads and relies upon the provisions of s. 7
of the Act, as well as the common law of British Columbia in relation to the
tort of passing off.

False
Representations to the Public

33.           
Zakharia currently operates and maintains a
website at www.kitsilanotrainers.com/john- zakharia-in-vancouver/, which includes the following
representations:

Hello. My name is
John Zakharia from Vancouver. I am certified with the BCRPA as a Certified
Weight Training Instructor and a Certified Group Fitness Instructor.[…]

34.           
Zakharia also operates and maintains a website
at http://fitnessvancouver.ca/listing/zakharia-iohimv-kitsilano-trainers-oersonal-trainers-vancouver-bc-canada, which includes the following representations:

Zakharia, Johnny
– Kitsilano Trainers […]

Kitsilano
Trainers only offers professionally certified BCRPA trainers. […]

35.           
Zakharia is not “certified”, registered, or
authorized with or by the BCRPA, either as a weight training instructor, group
fitness instructor or in any other capacity. The BCRPA has not authorized
Zakharia to advertise that he is so certified or registered.

36.           
In violation of the Competition Act,
R.S.C. 1985, c. C-34 (the “Competition Act”), Zakharia has
knowingly or recklessly made, or has caused others to make, representations to
the public that are false or misleading in a material respect, for the purpose
of promoting his own business interests (the “False Representations”).

37.           
Zakharia threatens and continues to make the
False Representations to the public.

38.           
By reason of the False Representations, BCRPA
has suffered loss and damage.

Conspiracy to injure the BCRPA and Suzanne Strutt

39.           
Since approximately May 20, 2014, Zakharia
and Jane Doe have combined or conspired with each other to injure the BCRPA and
Strutt by creating and posting to the internet websites and videos in order to
injure the BCRPA and Strutt’s reputation and goodwill held by the general
public.

40.           
The conduct of Zakharia and Jane Doe in
furtherance of their conspiracy was unlawful and was directed towards the BCRPA
and Strutt, and the likelihood of injury to the BCRPA and Strutt was known to Zakharia
and Jane Doe at all material times, or should have been known to them in the
circumstances.

41.           
Pursuant to their conspiracy, Zakharia and Jane
Doe, or one or more of them, posted or caused to be posted on YouTube a video
containing injurious falsehoods (defined below as the “BCRPA YouTube Video”),
which acts were aimed or directed at BCRPA and which it could reasonably be
foreseen would injure BCRPA and Strutt by depleting the BCRPA and Strutt’s
reputation and goodwill among the public and fitness community.

42.           
Zakharia and Jane Doe have refused to
discontinue and threaten to continue to repeat the acts complained of.

43.           
As a result of the acts carried out by Zakharia
and Jane Doe, or one or more of them as particularized in this notice of civil
claim, in furtherance of their conspiracy, BCRPA and Strutt have suffered loss
and damage and continue to suffer loss and damage by reason of which Zakharia
and Jane Doe, and each of them, are liable for damages for the tort of
conspiracy.

44.           
In the alternative, the acts described above are
independently actionable even if not committed pursuant to a conspiracy and
BCRPA claims damages in relation to those acts for the same losses as described
in the preceding paragraph of this notice of civil claim.

45.           
BCRPA claims punitive damages. The facts on
which BCRPA relies in support of this claim are the fact of the conspiracy to
which Zakharia and Jane Doe are parties, and the acts carried out in
furtherance of the conspiracy, as particularized in this notice of civil claim.

Injurious Falsehood

46.           
The defendants have published false statements,
reflecting adversely on the BCRPA’s business, and calculated to induce persons
to not deal with the BCRPA, made maliciously and without just cause or excuse.
Particulars of the injurious falsehoods published by the defendants are as
follows:

47.           
On or about May 13, 2014, Zakharia (or
alternatively one or more of Zakharia and Jane Doe) created the BCfit Website
and an article entitled “Possible Bullying and/or Extortion?” (the “Internet
Article”), which the defendants and each of them published or caused to be
published on the BCfit Website, and the defendants continue to publish the
Injurious Article [Internet Article] to the date of filing this notice of civil
claim.

48.           
The Internet Article contains, inter alia,
the following words calculated to harm the BCRPA and to induce persons not to
deal with the BCRPA:

BCRPA
Vancouver

British
Columbia Parks and Recreation Review

Author
Archives: BCFIT

Possible
Bullying and/or Extortion?

First of all, I am sure that you agree that extortion and bullying
are not only unethical but it is illegal Let me share with you the definition
of extortion:

Definition
of EXTORT […]
to obtain from a person by force, intimidation or undue or illegal power;
wring; also: to gain especially by ingenuity or compelling argument

The actions
of Mrs. Strutt are a clear proof of Extortion. I obtained a screen
shot of Mrs. Strutt blocking my account for your file: […]

At very least a 5^th grader
would see that this is a clear sign of unprofessionalism and abuse of power. It
is also a sign of “shoot first and ask questions later”. Any 5^th grader would agree that any civilized human would
request a meeting, an explanation before resorting to such heavy-handed
tactics.

Now let me
share with you a definition of Bullying

What is
bullying?

Bullying is a
form of aggression where there is a power imbalance; the person doing the
bullying has power over the person being victimized.

Again. At the very least a 5^th
grader would see that this is a clear sign of unprofessionalism and abuse of
power. It is also a sign of “shoot first and ask questions later”. Any 5^th
grader would agree that any civilized human would request a meeting, an
explanation before resorting to such heavy-handed tactics

This entry was posted in British
Columbia Parks and Recreation, Suzanne Strutt BCRPA, Vancouver BCRPA and tagged
Suzanne Strutt the CEO at British Columbia Parks and Recreation Association,
Vancouver bcrpa on May 21, 2014 [http://www.bcfit.ca/possible-bulling-andor-extortion].

Suzanne Strutt BCRPA

[YouTube Video
link]

Please join
us in seeking justice for a middle-eastern man who is from the downtown eastside
in Vancouver. Not only is he poor but he suffered 4 detached retinas and now
partially-sighted. He is being mistreated and threatened by Suzanne Strutt the CEO at British Columbia Parks and Recreation
Association.

Recently a
person on disability wrote a letter to Suzanne Strutt requesting that they
waive the late fee because he is on disability and cannot afford the 190
dollars fee to renew his registration. However Suzanne Strutt replied that
BCRPA is a business and they don’t waive fees for low-income people. Then the
person on disability who is from the downtown eastside who is proud to say that
he is a BCRPA Personal Trainer asked Suzanne Strutt to atleast [sic] reply to
his 2^nd request and that she consider waiving the 50 dollar late fee
because 50 dollars to him is lots of groceries.

He also told
her that it would be professional to offer a reply or decision because he is a
registered member. What followed after that is outrageous and a clear case of
malice including professional misconduct. She lashed out at him when he asked
her to consider waiving the late fee. […]

As you have
read the egregious conduct of Suzanne Strutt, this is absolutely unacceptable.
What is more egregious is that the member was the ONLY ONE who left a 5 star
rating for the staff at BCRPA on their facebook page. […]

As one can
clearly see the malice and hostility Suzanne Strutt has displayed, instead of
thanking him she attacks him and makes him sign documents. It does not get
meaner than that folks.

We can only
guess why she threatened him is because She became afraid that he would bring
to light that she does not waive fees for the poor and partially sighted.

One would
think that the incident is over but it got much worse.

Suzanne Strutt
BLOCKED the good citizen’s account and prevented him from access to his BCRPA
account, which means he could not offer his services to the public as a BCRPA
Approved Personal Trainer. Which I am sure anyone would agree this is
hostile and would cause anyone pain and suffering.

To continue.
The low income good-citizen had no choice but to pay 190 to Suzanne Strutt and
sign her documents. Which is exactly what happened. The good citizen cannot
afford a lawyer and under duress signed her documents to have his registration
unlocked. Otherwise the several hundreds of dollars and several months he spent
in the last year would be wasted.

[…]
Suzanne Strutt on May 13, 2014 noticed that the good citizen has done
nothing and not defended himself so she went a step further. […]

As you can
read she took the money of the low-income man and made him sign her
documents… Suzanne Allard Strutt must remember that free speech and
censorship are serious issues and any professional understands these concepts.

After doing
a little research we found that Suzanne Strutt has posed in a picture with
InfoFit and gave them an award which she never mentioned. Which clearly shows a
bias and hostile prejudice. Again. A clear case of professional misconduct

Attached
below are pictures of the owner of infofit being awarded an award from Suzanne
Allard Strutt The picture says a thousand
words and clearly displays a clear case of partiality, bias and malice.

[Picture of
Strutt with other individuals at the 2012 BCRPA Fitness Leadership Awards]

In conclusion, Suzanne Strutt is
suggesting that one cannot exercise their reviews of a business if it
contradicts her views which is a clear sign of narcissism, unprofessionalism,
malice and hostility, especially when she holds a public position which
requires an ethical standard and a “CODE OF CONDUCT”

49.           
Commencing in or around May 20, 2014, and
continuing to the date of filing this notice of civil claim, Zakharia and Jane
Doe published certain words, calculated to cause harm to the BCRPA and Strutt
and to induce persons not to deal with them, on YouTube.com at http://www.youtube.com/watch?v=lf5AOo 1110c (the “BCRPA YouTube Video”).

50.           
Particulars of the written words complained of
in the BCRPA YouTube Video are as follows:

Please join us in
seeking justice for a middle-eastern man who is from the downtown eastside in
Vancouver. Not only is he poor but he suffered 4 detached retinas and now
partially-sighted. He is being mistreated and threatened by Suzanne Strutt the
CEO at British Columbia Parks and Recreation Association. Visit www.BCfit.ca.

51.           
Particulars of the spoken words complained of in
the BCRPA YouTube Video are as follows:

“Help us seek justice
against the hostile actions of Suzanne Strutt, who is the CEO of BCRPA in
Vancouver. Recently, a partially blind man who is on social assistance asked
her to waive a $50 late fee. However Suzanne Strutt not only refused but
threatened the man if he has not signed some papers promising that he will not
give a review of one of her favourite fitness leaders. We have pictures of her
posing with her favourite fitness leader two years ago. But she did not mention
that when she threatened the paying member, hoping the paying member would not
notice and just cave into her threat not to post a negative review. If that is
not misconduct and unprofessionalism, then what is? In conclusion Suzanne
Strutt threatened a member [inaudible] one year worth of studies and several thousands
of dollars of loss which is absolutely in violation of his civil and legal
rights. Susan Strutt must step down with an apology. Remember, this man is
partially sighted and low income. Help us seek justice.”

52.           
The said false statements published by the
defendants in the Internet Article and BCRPA YouTube Video were made
maliciously and the plaintiffs have suffered special damages particulars of
which will be provided prior to trial.

Defamation of BCRPA and Suzanne Strutt

Publications

53.         
The Internet Article particularized at paragraph
48 herein, is also defamatory of the BCRPA and Suzanne Strutt. It has been
accessed, downloaded and read by many persons in British Columbia and elsewhere
in Canada and the world.

54.         
In addition to the facts set out above, and
contrary to the words in the Internet Article, the true facts are as follows:

a)              
Suzanne Strutt is an honest, competent,
reliable, professional, well-educated individual who held an excellent
reputation among her colleagues and the fitness community before Zakharia
commenced his campaign against her and the BCRPA.

b)              
Zakharia permitted his registration with the
BCRPA Fitness Registration Program to expire despite receiving multiple
reminders from the BCRPA to pay his renewal fee prior to expiry.

c)              
At no time did Strutt personally accept money
from Zakharia. On May 7, 2014, Zakharia met with Emmie Li, the Fitness
Program Manager at BCRPA, who accepted his Renewal Fees. Zakharia was
immediately registered with the Fitness Registration Program after his Renewal
Fees had been paid and he had signed the Agreement.

d)              
Zakharia was never under duress to sign the
Agreement and pay the Renewal Fees. Strutt provided Zakharia the option of
attending the BCRPA offices for renewal of his registration that day, or to
meet with Emmie Li at a later date. Zakharia was and is at liberty to provide
his services to the public as a personal trainer despite not being registered
with the BCRPA Fitness Registration Program.

e)              
Strutt attends the annual BCRPA Fitness
Leadership Awards as a representative of the BCRPA to hand out awards to the
recipients. She has no personal input as to which persons or businesses will
receive the awards.

f)                
The BCRPA does not and cannot waive fees for any
individual who wishes to be registered with its Fitness Registration Program.
Registration and renewal fees pay for hard costs to the BCRPA, such as
insurance premiums and overhead.

g)              
At all times, Strutt treated Zakharia with
respect and offered him the opportunity to be registered with the BCRPA Fitness
Registration Programs on the condition that he pay the Renewal Fees and sign
and abide by Registration Terms and Conditions and the Code.

55.           
Further, in the context of the Internet Article
as whole, the words complained of by the BCRPA convey the following natural and
ordinary inferential meanings:

a)              
The BCRPA and Suzanne Strutt:

i)                
victimize disabled and low-income individuals;

ii)               
are biased and prejudiced;

iii)             
are unprofessional, dishonest, immoral and
corrupt;

iv)             
are malicious, hostile and threatening to
members of the public;

v)              
are bullies; and

vi)             
are criminals.

b)              
The BCRPA and Suzanne Strutt condone:

i)                
the victimization of disabled and low-income
individuals by its employees;

ii)               
the biases and prejudices of its employees
towards the public;

iii)             
unprofessional, dishonest, immoral and corrupt
behaviour by its employees;

iv)             
malicious, hostile, and threatening behaviour by
its employees on members of the public; and

v)              
bullying of members of the public by its
employees; and

vi)             
the criminal behaviour of its employees.

c)              
The BCRPA and Suzanne Strutt are unprofessional,
dishonest, immoral, and corrupt.

d)              
Anyone who has business or personal dealings
with the BCRPA or Suzanne Strutt are at risk of becoming the victim of
extortion or bullying by the BCRPA or its employees.

Each of these
meanings is utterly false, malicious and defamatory of and concerning BCRPA and
Suzanne Strutt.

56.           
The BCRPA YouTube Video particularized at
paragraphs 51 and 52 herein, is also defamatory of the BCRPA and Suzanne
Strutt. It has been accessed, downloaded and read by many persons in British
Columbia and elsewhere in Canada and the world.

57.         
The BCRPA YouTube Video as a whole, including
the words particularized herein, convey the following natural and ordinary
inferential meanings:

a)              
The BCRPA and Suzanne Strutt employ individuals
who:

i)                
victimize disabled and low-income individuals;

ii)               
are biased and prejudiced;

iii)             
are unprofessional, dishonest, and immoral;

iv)             
are malicious, hostile and threatening to
members of the public; and

v)              
are bullies.

b)              
The BCRPA and Suzanne Strutt condone:

i)                
the victimization of disabled and low-income
individuals by its employees;

ii)               
the biases and prejudices of its employees
towards the public;

iii)             
unprofessional, dishonest, and immoral behaviour
by its employees;

iv)             
malicious, hostile, and threatening behaviour by
its employees on members of the public; and

v)              
bullying of members of the public by its
employees.

c)              
The BCRPA and Suzanne Strutt are unprofessional,
dishonest, and immoral.

d)              
Anyone who has business or personal dealings
with the BCRPA or Suzanne Strutt are at risk of becoming the victim of bullying
by the BCRPA or its employees.

Each of these
meanings is utterly false, malicious and defamatory of and concerning BCRPA and
Suzanne Strutt.

Scope of Publication

58.           
The defamatory expression on the Internet complained
of in this notice of civil claim has been accessed, downloaded, read and viewed
by many persons in British Columbia and Canada and elsewhere in the world.

Joint Liability

59.           
The defendants and each of them aided or
participated in the publication of the defamatory expression complained of in
this notice of civil claim pursuant to a common design and caused, procured,
authorized, concurred in, and/or approved publication of the defamatory
expression. Without limiting the generality of the foregoing, each defendant
created or assisted in creating the content of the aforesaid defamatory
expression and further (or in the alternative):

a)              
approved, authorized, incited or encouraged
publication of the aforesaid defamatory expression; and/or

b)              
participated in causing the dissemination of the
aforesaid defamatory expression by third parties by posting on the Internet
and/or by email and/or by facilitating republication as alleged; and/or

c)              
communicated to third parties their agreement
with the content of the defamatory expression.

Republication by
Third Parties

60.           
The defendants knew and intended and expected
that other persons visiting the BCfit Website and the BCRPA YouTube Video and
would copy, download, or link to the defamatory expression complained of in
this notice of civil claim and republish it on other Internet websites, or by
email, which did in fact occur. Alternatively, such republication or linking by
third party Internet websites, and republication by email, was the natural and
probable result of the original publication of the defamatory expression.

61.           
Alternatively, such republication by third
parties on the Internet was the natural and probable result of the original
publication on the Internet of the electronic version of the Internet Article
or the BCRPA YouTube Video.

Express Malice

62.           
The defendants each published and/or authorized
the publication of the defamatory expression complained of in this notice of
civil claim with the knowledge that the popular innuendo meanings conveyed by
that defamatory expression were false, or alternatively, with reckless
indifference whether they were true or false.

63.           
The predominant purpose of the defendants was to
cause harm to the BCRPA and Strutt, to expose them to hatred, ridicule and
contempt, to lower them in the estimation of others, and to cause them to be
shunned and avoided. In this regard, the defendants sought to destroy the
reputation of the BCRPA and Strutt so that the BCRPA and Strutt would have no
credibility with the general public, potential registrants of the BCRPA Fitness
Registration Program, and the fitness community.

Damages and Injunctive
Relief

64.           
The defamatory expression complained of in this
notice of civil claim has caused injury, loss and damage to the BCRPA and
Strutt by exposing the BCRPA and Strutt to contempt, ridicule and hatred, and
causing other persons to shun or avoid the BCRPA and Strutt, and by lowering
the BCRPA and Strutt in the estimation of right-thinking members of the
community.

65.           
As a further consequence of the publication and
republication of the defamatory expression complained of in this notice of
civil claim, the BCRPA and Strutt continues to suffer loss, damage, and
expense, and will continue to incur loss, damage and expense in the future,
including past, current and future special damages in the form of loss of
income, particulars of which will be provided on request.

66.           
The past, current and future loss, damage and
expense referred to in the preceding paragraph of this notice of civil claim
includes, inter alia, substantial and persisting injury to reputation of
the BCRPA and Strutt, injury to professional and personal relationships between
the BCRPA and other persons in British Columbia and elsewhere in Canada and in
other countries.

67.           
The defendants have each been guilty of reprehensible,
insulting, high-handed, spiteful, malicious and oppressive conduct, and such
conduct by the defendants justifies the court in imposing a substantial penalty
of exemplary damages on the defendants, imposing an award of aggravated damages
in favour of the BCRPA and Strutt, and imposing an award of special costs in
favour of the BCRPA and Strutt. The BCRPA and Strutt will rely upon the entire
conduct of the defendants before and after commencement of this action to the
date of judgment.

There is a serious risk that the defendants
will renew or continue publication of the defamatory expression complained of
in this notice of civil claim unless the defendants are restrained from doing
so by an Order of this Honourable Court.

[16]        
On May 27, 2014, BCRPA was formally registered (application date May 23,
2014) as the owner of the trade-mark BCFIT. BCFIT and resembling variations
such as BCFit, bcfit and BCfit, all arise in the evidence. In these Reasons, I
have used the description as it appears in the evidence.

[17]        
The plaintiffs’ pleadings also define the www.BCfit.ca website that Mr. Zakharia
established as the “BCfit Website”. In these Reasons, I will use the same
definition, including when the address is shown as www.bcfit.ca.

III.            
credibility

[18]        
In finding many of the facts, the Court was required to assess the
credibility of Mrs. Strutt.

[19]        
Mrs. Strutt testified in an open and forthright manner. She is an
accomplished and experienced executive, who has also contributed her services
and talents to the community. Her testimony was consistent with the surrounding
evidence and circumstances. The testimony of the plaintiffs’ other witnesses,
each of whom was credible and reliable, was consistent with Mrs. Strutt’s
testimony. The Court has no reservation in accepting Mrs. Strutt’s testimony
and that of the plaintiffs’ other witnesses.

[20]        
Mrs. Strutt’s testimony, in particular, satisfied the Court that
there is no evidence to support Mr. Zakharia’s allegations that there was
a conspiracy directed at him or that he was the subject of discrimination.

[21]        
As previously noted, Mr. Zakharia chose not to testify.

IV.           
facts

[22]        
At trial, Mr. Zakharia stated that he agreed with paragraphs 1 to
3, 5, and 7 to 18, 20, 22, 24, 33, 35, 47 and 50 of the plaintiffs’ pleaded
facts.

[23]        
The plaintiffs’ notice of civil claim was filed on July 28, 2014. With
respect to paragraph 33 of the pleaded facts, Mr. Zakharia noted that he
was unable to withdraw the representations after the ex parte
interlocutory injunction was granted on July 28, 2014, and before it was
modified on August 25, 2014.

[24]        
The key facts are straightforward. Mr. Zakharia, a personal
trainer, had been a BCRPA registrant. He did not pay his annual BCRPA fees in a
timely manner and his registration lapsed. On May 7, 2014, his registration
was reinstated upon payment of the relevant fees ($140), a moderate late fee
($50), and his written commitment to abide by BCRPA’s Code of Ethics. On May 8,
2014, Ms. Emmi Li, BCRPA’s fitness program manager, told Mr. Zakharia,
responding to his query about whether the signed commitment was retroactive,
that the commitment was not retroactive.

[25]        
BCRPA had well-founded concerns with respect to Mr. Zakharia’s past
compliance with its Code of Ethics. By allowing Mr. Zakharia to be
reinstated, provided he gave his written commitment to abide by BCRPA’s Code of
Ethics, Mrs. Strutt was giving Mr. Zakharia, in good faith, “another chance”.

[26]        
With registration, a registrant is covered by insurance in relation to
his or her fitness training activities. The insurance coverage is
understandably important to fitness centres that may employ a BCRPA fitness
leader.

[27]        
Mrs. Strutt testified that BCRPA’s fees (including late fees) are
not waived under any circumstances. As she explained, BCRPA is a non-profit
organization that incurs expenses in the course of its operation and relies on
its fees to pay such expenses.

[28]        
BCRPA’s Code of Ethics, like those of many organizations, requires that
members treat one another with civility and respect. A few days after Mr. Zakharia
paid the requisite fees, without explanation, he continued to disparage a BCRPA
member organization, contrary to the Code of Ethics. The Code of Ethics reads:

Code of Ethics

The Fitness Program Code of Ethics is designed to provide
guidance – both individually and collectively – to all registered BCRPA Fitness
Leaders, in order to maintain a high level of ethical conduct. The essential
principles of the Code of Ethics are honesty and integrity. Fitness Leaders who
reflect these characteristics will be a credit to the Association, the
institutions they represent and themselves.

·       
Actively support the mission and philosophy of the BCRPA Fitness
Program.

·       
Be forthright in all dealings with the public; with integrity and
without compromise, always act in the best interests of the public’s
well-being.

·       
Treat all people equally and with respect for human dignity.

·       
Uphold high ethical standards, bringing integrity and honesty to
the profession.

·       
Recognize individual boundaries of competence and refer to more
qualified fitness or health professionals when appropriate.

·       
Participate in continuing education and training to upgrade
knowledge and stay current in the fitness profession.

·       
Preserve the credibility and dignity of colleagues and associates
by exhibiting professionalism in all situations.

·       
Comply with the spirit, as well as the letter of all applicable
business, employment and copyright laws and regulations.

·       
Enhance community well-being by providing a high level of
excellence in both professional skills and knowledge

·       
Strive to bring credit to the fitness profession by meeting or
exceeding the standards of the BCRPA Fitness Program.

[29]        
On May 13, 2014, on becoming aware of matters, Mrs. Strutt
emailed Mr. Zakharia:

Johnny,

I was sent this link: URL http://infofitreview.wordgress.com=

I am very disappointed that you appear to have breached the
agreement we recently signed. Please remove this post, and provide me with an
explanation. I expect to hear from you within the next 48 hours.

Suzanne

[30]        
Within 2 hours, Mr. Zakharia replied:

Mrs. Strutt,

Your threats and your acts of hostility are all documented.

I will give you 48 hours for an apology or I will seek
legal action and exercise my legal rights and my consumer rights.

I have documented your actions on www.BCfit.ca.

It is late in the day and it will take me one week to
complete. I am producing a video documentary which I will post on youtube.
It will be a documentary on BCRPA and I will have it reviewed by a lawyer.

I kindly request that you
apologize for the troubles you caused me.

[31]        
As Mrs. Strutt’s email shows, Mr. Zakharia was given the
opportunity to explain the post. Mr. Zakharia’s response to a request for
an explanation was wholly unreasonable. He chose not to explain the post.

[32]        
On or before May 13, 2014, Mr. Zakharia created the BCFit Website
(www.bcfit.ca), which he used to attack the plaintiffs.

[33]        
BCRPA had used the unregistered trade-mark BCFit since 2009, in
connection with the annual fitness conference it organizes.

[34]        
On the BCFit Website to which Mr. Zakharia refers in the above May
13, 2014 email to Ms. Strutt, an article was posted with a YouTube video.
When the article was initially posted (on or about May 13, 2014), Mr. Zakharia
appeared in the YouTube video.

[35]        
On May 13, 2014, Mrs. Strutt first saw the article and the video
of Mr. Zakharia. On May 14, 2014, a new You Tube video was posted on the website,
replacing the video of Mr. Zakharia. The presenter in the replacement
YouTube video was Jane Doe. The language used by Jane Doe was similar to that
used by Mr. Zakharia. The particulars of the key language of the YouTube
video are found at paragraph 51 of the notice of civil claim. In addition, the
text of the article posted on or before May 13, 2014 had been modified
slightly. The key portions of the modified article are found in the second
portion of paragraph 48 of the notice of civil claim.

[36]        
By May 22, 2014, the article described in the first portion of
paragraph 48 of the notice of civil claim (the title was “Possible Extortion
and/or Bullying?” and not “Possible Bullying and/or Extortion?” as set forth in
the plaintiffs’ pleadings), had also been posted to the BCFit Website.

[37]        
On May 27, 2014, Mr. Zakharia was expelled from the BCRPA. By
May 28, 2014, Mr. Zakharia was aware of his expulsion.

[38]        
As noted, Mr. Zakharia asserted that Mrs. Strutt had victimized
him because he is partially-sighted. There was no evidence of such
victimization by Mrs. Strutt or the BCRPA. In poignant testimony, Mrs. Strutt
explained she was particularly distressed by Mr. Zakharia’s allegations
because her late son was profoundly deaf and blind. Mrs. Strutt testified
that she had worked hard against discrimination towards persons with
disabilities. The Court finds that Mrs. Strutt was deeply hurt by Mr. Zakharia’s
unkind and baseless attack.

[39]        
On May 29, 2014, Mr. Zakharia sent a package of documents to
CanFitPro, an organization with similar objects to those of BCRPA, in order to
seek accreditation from CanFitPro. Included in the documents CanFitPro received
was a certificate purportedly issued by BCRPA, showing the plaintiff as
registered with BCRPA. The certificate was a fake.

[40]        
In September 2014, CanFitPro became aware of the truth. Mr. Zakharia’s
certificates with CanFitPro were revoked.

[41]        
On October 2, 2014, Mr. Zakharia swore an affidavit (filed October 6,
2014), in support of an application to modify an injunction issued as part of
the current action (granted July 28, 2014 and modified August 25,
2014). The portion of the injunction that Mr. Zakharia sought to be
deleted reads:

THIS COURT ORDERS that:

1.         The defendant, John Zakharia (also known as
Johnny Zakharia, Johnny Zakhariah and Johnny Zacharia) (“Zakharia”), by
himself, his servants, agents or otherwise, directly or indirectly, is enjoined
from:

….

f)          Publishing any of the statements alleged
to constitute injurious falsehood of the BCRPA by denigrating the BCRPA or its
Chief Executive Officer Suzanne Strutt in her capacity as the Chief Executive
Officer of the BCRPA or any substantially similar statements regarding any
other personal representative of the BCRPA;

[42]        
At paragraph 32 of his October 2, 2014 affidavit Mr. Zakharia
swore:

32.       On September 30,
2014, I received a letter from canfitpro which cancelled my certification
as a fitness instructor with that organization. In the letter, canfitpro
advised me that my certification was cancelled as a result of alleged
misrepresentations I had made with respect to my BCRPA certification in May 2014.
I dispute that I made any misrepresentations, but I do not feel
I can adequately respond to canfitpro given the restrictions placed on me
by paragraph 1(f) of the Order.

[43]        
Mr. Zakharia’s application was heard by Justice Affleck on November
6, 2014 and dismissed on November 28, 2014: British Columbia Recreation and
Parks Association v. Zakharia, 2014 BCSC 2244.

[44]        
At trial, if Mr. Zakharia had chosen to testify, he would have had
an opportunity to explain that he had not made “any misrepresentations” to
CanFitPro.

[45]        
The Court finds that Mr. Zakharia knowingly used a fake BCRPA certificate
in order to become registered with CanFitPro.

[46]        
Mr. Zakharia could have also testified as to the various versions
of the articles and YouTube videos which were posted on the BCFit Website he
created in support of his defence, including his pleas of truth, fair comment,
and responsible communication.

[47]        
Despite knowing that BCRPA used BCFit for its annual fitness conference,
Mr. Zakharia used the domain name www.bcfit.ca to post
his articles and YouTube videos. Although BCRPA had told him not to do so in December 2013,
and then again on June 4, 2014, after the trade-mark had been formally registered
as BCFIT on May 27, 2014, he nonetheless used the trade-mark.

[48]        
After his expulsion from BCRPA, Mr. Zakharia represented himself to
be a “BCRPA PT”, to further his own commercial interests. As an example, on September 20,
2014, Mr. Zakharia wrote to Mr. Weltman, the owner of Amazing Personal
Training Studio (verbatim):

I am interesting in training my
clients at your studio. I am a BCRPA PT and a CanFitpro and CFES PT. Plus
a Keiser Indoor Cycling instructor. In addition. I own KitsilanoTrainers.com
and I would love to add you (for free of course) once I begin
training my clients. I assume your fees are about 15 a session.

[49]        
On June 3, 2015, a few days before the trial started, Mr. Zakharia
sent separate emails to three of the plaintiffs’ listed witnesses or their
respective employers. With respect to Mr. Craig Sheather, vice-president
of operations at the YMCA of Greater Vancouver, Mr. Zakharia wrote to Mr. S. Butz,
the chief executive officer of the YMCA of Greater Vancouver, (verbatim):

With Prejudice,

June 3 2015,

Dear Butz and/or YMCA of Greater Vancouver

I am involved in litigation with the BCRPA. In the past
I filed a Small Claims Court Lawsuit. They replied with a Civil Lawsuit.
Regarding the Small Claims Lawsuit, we did settle on the grounds that they
admit that they could have treated me better, which was short of an apology.
The Judge also advised them that there were contempt of Court issues.

Regarding the Civil Case, it has been brought to my attention
that Mr. Craig Sheather will be acting as a witness against me. He is
planning to represent the YMCA of Greater Vancouver.

You hereby have been made aware on June 3^rd
at 8 40 pm that Mr. Craig Sheather will be acting as a witness against me
during the dates between June 8^th to June 12, 2015.

We will assume that he has your consent, that he is
representing the YMCA of Greater Vancouver, and not himself only. Unless
otherwise notified.

Please be advised that litigation will follow because of the
harm and distress that this action from a YMCA representative is planning on
causing me.

In addition. You approve his actions and consent to
publishing this conduct to the public, including the YMCA organizations, from
Canada, and the YMCA members, nationally and internationally. From day one when
I met Mr. Sheather to the day that I quote his words in the
Supreme Court of Canada.

There will be no secrecy, or a publication ban and you have
been made aware of this fact on June 3^rd 2015.

Johnny Zakharia

[50]        
Undeterred by Mr. Zakharia’s attempt to dissuade him from giving
evidence, Mr. Sheather testified at trial. He testified that he had
clicked on the BCfit Website, viewed one of the YouTube videos, read the
accompanying text and had followed the links to the second article (“Possible Extortion
and/or Bullying”) which he also read.

[51]        
On or about June 26, 2015, after the trial had commenced and before
Mr. Zakharia started his defence, the YouTube video with Mr. Zakharia
was re-posted. The spoken words are:

Hi everyone. My name is Johnny
and I’d like to thank you for helping me seek justice. For one year, I’ve been
taking courses to become a fitness leader and I’ve paid several hundreds of
dollars with BCRPA, British Columbia Parks & Recreation Association. A few
weeks ago, I sent out an email to the CEO; her name is Susan Strutt; she’s
the CEO of BCRPA and I asked her if she could please waive the fees
because I’m low-income and I’m partially disabled, partially blind because of
four detached retinas. She says she cannot waive the fee because it’s a,
because it’s a business. Then I said to her then I said to her, ‘please,
waive the late fee. Please waive the late fee’ and she did not reply. I sent
her a reminder saying ‘it would be very professional if you’d reply at least to
a paying member.’ She became extremely hostile. Then she made me sign forms,
saying that I’m disparaging, making disparaging comments, just because I asked
her to reply to my plea to waive the $50 because I’m low-income. It got even
much worse than that. She sent me an email the other day threatening me, saying
that any comments I made in the past, any review about any fitness
leaders, that she would cancel my membership in my future I can’t be a
fitness leader. So one year of schooling and courses go down the drain. That’s,
as you can tell that’s very distressing and troubling. Basically I caught
her, I did some research and she’s in a picture with a fitness leader
that, InfoFit, giving him an award. I saw that picture on Facebook. So now
we know why she doesn’t want me to leave negative reviews. So you can see there’s
clear case of bias partiality and unprofessionalism. And now I’m living out of fear
because of her hostility. As you can tell this is completely unacceptable. I’m
a good citizen, professional, and I deserve to be treated equally and
professionally. So please join me seeking justice and getting Susan Strutt to
step down and allow me to continue with my future and my career. Thank you very
much. Look below and you’ll see what you need to do. Thank you.

[52]        
Mrs. Strutt’s testimony and the testimony of the plaintiffs’ other
witnesses also served to establish the pleaded facts, including those at
paragraphs 6, 19, 21, 23, 26, 27 (other than subparagraph (c)), 29, 30, 31, 33,
36, 37, 38, 39, 40, 41, 42, 43, 46, 47, 48, 49, 50, 51 and 52.

[53]        
With respect to paragraph 4, the pleaded facts were established other
than whether there were “multiple” videos of Jane Doe. There was only one video
posted.

[54]        
With respect to subparagraph 27(c) and paragraph 34, the plaintiffs
conceded that there was no evidence presented at trial to support these pleaded
facts

[55]        
Paragraphs 25 and 32 were not pleaded facts but were statements of law.

[56]        
The evidence established that the YouTube videos and articles had been
accessed as set forth in paragraph 53 of the pleadings. Neither the exact
number of readers nor where these readers resided was established.

[57]        
Paragraph 28 involves questions of law that I will address separately.

[58]        
Mrs. Strutt’s testimony and that of the plaintiffs’ other witnesses
also established the facts set forth at paragraph 54 of the pleaded facts.

[59]        
With respect to the remainder of the pleaded facts (paragraphs 55 to 68)
I will address these pleaded facts as part of my analysis because, for the
most part, they are intertwined with questions of law and the pleadings
specifically related to defamation.

V.             
Adverse inference

[60]        
As noted, Mr. Zakharia chose not to testify.

[61]        
Sopinka, Lederman and Bryant, The Law of Evidence in Canada 4^th
ed (Markham, Ont.: LexisNexis Canada, 2014) at 386-387, neatly summarizes the
law with respect to drawing an adverse inference in civil cases:

6.450   In civil cases, an unfavourable inference can be
drawn when, in the absence of an explanation, a party litigant does not
testify, or fails to provide affidavit evidence on an application, or fails to
call a witness who would have knowledge of the facts and would be assumed to be
willing to assist (that party. In the same vein, an adverse inference may be
drawn against a party who does not call a material witness over whom he or she
has exclusive control and does not explain it away. Such failure amounts to an
implied admission that the evidence of the absent witness would be contrary to
the party’s case, or at least would not support it.

6.451 An
adverse inference should be drawn only after a prima facie case has been
established by the party bearing the burden of proof.

[62]        
The drawing of an adverse inference is consistent with our much envied
common law system. The common law is litigant driven. It is the parties who
frame the action, collect evidence, investigate matters, and present their
respective cases under our adversarial system. Where a party does not present
evidence, which is in that party’s control, such failure, as Sopinka notes, may
lead to the natural inference that it “would be contrary to the party’s case,
or at least not support it”.

[63]        
As Justice Romer (as he then was) stated in Barker v. Furlong,
[1891] 2 CH.D. 172 at 184:

…But though I refused this
application [the plaintiff’s application to call the defendant after the
defendant’s case had been closed], I fully agree with what Mr. Haldane
said — that I am entitled and bound under the circumstances of the
Defendant’s not appearing to support his case, though he was in Court, to make
every reasonable presumption against him;

[64]        
In the case at bar, the plaintiffs had established a prima facie
case. Mr. Zakharia chose not to take the stand as part of his case. He had
the opportunity to explain such matters as: the basis, if any, for his
statements made in the YouTube videos and articles posted on the BCfit Website
he established; the circumstances surrounding the false BCRPA certificate; and
the otherwise reasonable conclusion that he knows Jane Doe’s identity.

[65]        
Mr. Zakharia argued that adverse inferences should be made from the
plaintiffs’ not calling four witnesses (Mr. M. Zaitlin, Ms. S. Seary
and Ms. T. Welsford and Ms. S. McNeal). The Court finds that the
witnesses either would not provide relevant evidence or that other witnesses,
such as Mrs. Strutt or Ms. Li, were able to provide the evidence. The
Court also accepts that the plaintiffs were mindful of the number of days set
for the trial. Finally, Mr. Zakharia could have called any or all of these
four witnesses.

VI.           
free expression

[66]        
The internet has not changed the law with respect to free expression.
While the internet may serve as the modern day Speaker’s Corner in Hyde Park (and
with a potentially far greater audience), the internet does not licence the
circumvention of the law of defamation.

[67]        
In Grant v. Torstar Corp., [2009] 3 S.C.R. 640 [Torstar],
the Supreme Court of Canada states:

[1]        Freedom of expression is guaranteed by s. 2(b)
of the Canadian Charter of Rights and Freedoms. It is essential to the functioning
of our democracy, to seeking the truth in diverse fields of inquiry, and to our
capacity for self-expression and individual realization.

[2]        But freedom of
expression is not absolute. One limitation on free expression is the law of
defamation, which protects a person’s reputation from unjustified assault. The
law of defamation does not forbid people from expressing themselves. It merely
provides that if a person defames another, that person may be required to pay
damages to the other for the harm caused to the other’s reputation. However, if
the defences available to a publisher are too narrowly defined, the result may
be “libel chill”, undermining freedom of expression and of the press.

And further:

[51] Charter
principles do not provide a licence to damage another person’s reputation
simply to fulfill one’s atavistic desire to express oneself.

VII.          
Defamation – law

A.             
General Principles

[68]        
In Torstar, the Supreme Court of Canada describes the elements
necessary for defamation:

[28]      A plaintiff in a defamation
action is required to prove three things to obtain judgment and an award of
damages: (1) that 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; (2) that the words in fact referred to the plaintiff; and (3) that the
words were published, meaning that they were communicated to at least one
person other than the plaintiff.

[69]        
Where the plaintiff “proves the required elements the onus then shifts
to the defendant to advance a defence in order to escape liability”: Torstar,
para. 29.

B.             
Justification

[70]        
To succeed on the defence of justification, a defendant must adduce
evidence showing that the statement was substantially true: Torstar, para. 33.

C.             
Fair Comment

[71]        
With respect to the defence of fair comment, the Supreme Court of Canada
in Torstar states:

[31]      As reformulated in WIC
Radio, at para. 28, a defendant claiming fair comment must satisfy the
following test: (a) the comment must be on a matter of public interest; (b) the
comment must be based on fact; (c) the comment, though it can include
inferences of fact, must be recognisable as comment; (d) the comment must
satisfy the following objective test: could any person honestly express that
opinion on the proved facts?; and (e) even though the comment satisfies the
objective test the defence can be defeated if the plaintiff proves that the
defendant was actuated by express malice. WIC Radio expanded the fair
comment defence by changing the traditional requirement that the opinion be one
that a “fair-minded” person could honestly hold, to a requirement that it be
one that “anyone could honestly have expressed” (paras. 49-51), which
allows for robust debate. As Binnie J. put it, “[w]e live in a free
country where people have as much right to express outrageous and ridiculous
opinions as moderate ones” (para. 4).

D.             
Responsible Communication on Matters of Public Interest

[72]        
In Torstar, the Supreme Court of Canada formulated the defence of
responsible communication on matters of public interest. The Chief Justice
writing for the majority sets forth the test:

[98]      … First, the
publication must be on a matter of public interest. Second, the defendant must
show that publication was responsible, in that he or she was diligent in trying
to verify the allegation(s), having regard to all the relevant circumstances.

E.             
Malice

[73]        
The Court, in Hill v. Church of Scientology of Toronto, [1995] 2
S.C.R. 1130 at 1133, described the meaning of malice in defamation actions. The
Court states:

…Malice is commonly understood,
in the popular sense, as spite or ill-will. However, it also includes any
indirect motive or ulterior purpose that conflicts with the sense of duty or
the mutual interest which the occasion created. Malice may also be established
by showing that the defendant spoke dishonestly, or in knowing or reckless
disregard for the truth.

VIII.        
defamation – case at bar

A.             
Necessary elements for defamation

[74]        
As noted, the testimony of the plaintiffs’ witnesses establishes the
pleaded facts set forth in paragraph 54 of the notice of civil claim.

[75]        
With respect to the articles and the YouTube video, the Court finds that
the plaintiffs have established the “stings” of the defamation as set forth in
paragraphs 55 and 57 of the notice of civil claim. In making these findings,
the Court has considered the articles in their entirety. Paragraph 48 in the
notice of civil claim does not quote the full articles in their entirety; it
does not include, inter alia, several emails written by Mrs. Strutt
or Ms. E. Li, the fitness program manager for BCRPA.

[76]        
The evidence shows that the impugned words referred to the plaintiffs, Mrs. Strutt
and the BCRPA, as each was specifically named in the YouTube videos and the articles
posted by Mr. Zakharia as he blogged on the BCfit Website.

[77]        
The evidence also establishes that the articles and YouTube videos had
been published and had been viewed.

[78]        
The Court also notes that the BCfit Website served as a fish weir for
internet users familiar with BCRPA’s annual fitness conference.

[79]        
In Law Society of British Columbia v. Canada Domain Name Exchange
Corporation, 2004 BCSC 1102, Justice Sigurdson described matters this way:

[22]      Guessing is a common
way internet users find and access websites. They guess at the domain name or
the website name and type that into the internet browser. To look for the
plaintiff’s website, an obvious guess would be to type its name, without
spaces: “lawsocietyofbc”.

[80]        
Similarly, it can reasonably be expected that an internet user looking
for BCRPA’s annual conference, who typed any variation of “bcfit” into an
internet browser, could have been directed to the BCfit Website (www.bcfit.ca)
that Mr. Zakharia had established for his blog.

B.             
Malice

[81]        
The Court finds that Mr. Zakharia published the statements with
malice. He had no basis for any of his statements, especially after being given
“another chance”, and after Mrs. Strutt, on May 13, 2014, offered him the
opportunity to explain the post. He had no regard for the truth. The re-posting
of the YouTube video during the trial further showed Mr. Zakharia’s spite;
he was asking that Mrs. Strutt be removed as the chief executive officer
of BCRPA.

C.             
Defences

[82]        
Mr. Zakharia’s defences (justification, fair comment, responsible
commendation) have no merit. The statements were not true. The defence of
justification fails.

[83]        
Assuming the statements made were comment, they were not based on fact
and were made with malice. Accordingly, the defence of fair comment fails.

[84]        
Finally, the defence of responsible communication fails. As the Supreme
Court of Canada in Torstar stated:

[125]    Similarly, the defence
of responsible communication obviates the need for a separate inquiry into
malice. (Malice may still be relevant where other defences are raised.) A
defendant who has acted with malice in publishing defamatory allegations has by
definition not acted responsibly.

D.             
Damages

[85]        
Earlier this year, in considering a defamation award in Batyka v.
Barber, 2015 BCSC 63 earlier this year, I stated:

[72]      In considering the
quantum of damages the Court has followed the guiding principles and factors
either adopted or set forth by Justice Cory in Hill for general,
aggravated and punitive damages: see Hill, paras. 164, 188, and
196. General damages in defamation cases are presumed from the publication of
the defamatory statement, and awarded at large: Hill at para. 164.
Aggravated damages may be awarded in circumstances “where the defendant’s
conduct has been particularly high-handed or oppressive”, in a manner that
exacerbates the plaintiff’s humiliation and anxiety: Hill, at para. 188.
Punitive damages are those which are awarded “where the defendant’s misconduct
is so malicious, oppressive, and high-handed that it offends the court’s sense
of decency”: Hill, at para. 196.

[73]      In Hill, Cory J.
referred to the following excerpts of Gatley on Libel and Slander, 8th
ed., (London: Sweet & Maxwell, 1981), in describing factors to be taken
into account in assessing damages, paras. 182 and 183:

1451. Province of the jury. In an
action of libel “the assessment of damages does not depend on any legal rule.”
The amount of damages is “peculiarly the province of the jury,” who in
assessing them will naturally be governed by all the circumstances of the
particular case. They are entitled to take into their consideration the conduct
of the plaintiff, his position and standing, the nature of the libel, the mode
and extent of publication, the absence or refusal of any retraction or apology,
and “the whole conduct of the defendant from the time when the libel was
published down to the very moment of their verdict. They may take into
consideration the conduct of the defendant before action, after action, and in
court at the trial of the action,” and also, it is submitted, the conduct of
his counsel, who cannot shelter his client by taking responsibility for the
conduct of the case. They should allow “for the sad truth that no apology,
retraction or withdrawal can ever be guaranteed completely to undo the harm it
has done or the hurt it has caused.” They should also take into account the
evidence led in aggravation or mitigation of the damages.

1452. Aggravated damages. The conduct of the defendant, his
conduct of the case, and his state of mind are thus all matters which the
plaintiff may rely on as aggravating the damages. “Moreover, it is very well
established that in cases where the damages are at large the jury (or the judge
if the award is left to him) can take into account the motives and conduct of
the defendant where they aggravate the injury done to the plaintiff. There may
be malevolence or spite or the manner of committing the wrong may be such as to
injure the plaintiff’s proper feelings of dignity and pride. These are matters
which the jury can take into account in assessing the appropriate compensation.”
“In awarding `aggravated damages’ the natural indignation of the court at the
injury inflicted on the plaintiff is a perfectly legitimate motive in making a
generous, rather than a more moderate award to provide an adequate solatium. .
. that is because the injury to the plaintiff is actually greater, and, as the
result of the conduct exciting the indignation, demands a more generous
solatium.”

[86]        
With respect to punitive damages, I would add that which the Chief
Justice and Justice Abella, writing for the Supreme Court of Canada in Fidler
v. Sun Life Assurance Co. of Canada, 2006 SCC 30, stated:

[62]      … But to
attract punitive damages, the impugned conduct must depart markedly from
ordinary standards of decency — the exceptional case that can be described as
malicious, oppressive or high-handed and that offends the court’s sense of
decency: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130,
at para. 196; Whiten, at para. 36. The misconduct must be of a
nature as to take it beyond the usual opprobrium that surrounds breaking a
contract. As stated in Whiten, at para. 36, “punitive damages
straddle the frontier between civil law (compensation) and criminal law
(punishment)”. Criminal law and quasi-criminal regulatory schemes are
recognized as the primary vehicles for punishment. It is important that
punitive damages be resorted to only in exceptional cases, and with restraint.

[87]        
As discussed below, the plaintiffs proved further torts that, to some
extent, have elements which overlap with elements of the tort of defamation.  In
considering the plaintiff’s respective defamation awards, I have considered these
awards in conjunction with the awards under the other torts in order to ensure
that double-counting does not result.

(a)  General and
aggravated damages

[88]        
Excluding awards for punitive and special damages, the Court awards Mrs. Strutt
and BCRPA $100,000 and $50,000 respectively.

[89]        
In reviewing the various factors supporting the awards, the Court has
considered, in particular, the fact that each plaintiff enjoyed a very
favourable reputation in the community, the seriousness of the statements, Mr. Zakharia’s
malevolence, the absence of any apology, and Mr. Zakharia’s persistent
conduct including his continued insistence at trial of impropriety by the
plaintiffs.

[90]        
As noted, Mr. Zakharia chose not to testify as part of his defence.
Despite Mr. Zakharia’s protestations that he was unrepresented, anxious
and “afraid of a hostile cross-examination”, the Court finds that Mr. Zakharia
simply did not wish to be confronted under oath as to his statements and
conduct.

[91]        
The stings of the attacks were directed more towards Mrs. Strutt
than BCRPA. As noted, Mr. Zakharia wished Mrs. Strutt to be removed
as BCRPA’s chief executive officer. Mrs. Strutt also suffered mental
distress. At trial, he accused Mrs. Strutt of perjury. For these reasons, Mrs. Strutt’s
award is greater than that of BCRPA.

(b)  Punitive damages

[92]        
The plaintiffs also sought $25,000 in punitive damages. This case is one
of those few exceptional cases where punitive damages should be awarded. Mr. Zakharia’s
actions were so “malicious, oppressive and high-handed that [they] offend the
court’s sense of decency” (Fidler at para. 62). The Court must make it
clear that the internet cannot be used to defame the persons in the manner that
Mr. Zakharia has done.

[93]        
The Court will award as punitive damages to Mrs. Strutt and the
BCRPA $15,000 and $10,000 respectively. The Court awards the higher amount to Mrs. Strutt
because the Court’s sense of decency is more offended because Mr. Zakharia’s
internet attacks went to her innateness and sense of self.

(c)  Special damages

[94]        
With regard to special damages, the Court will award BCRPA $33,000. The
key evidence as to the quantum of the special damages was provided by Mr. R. Higo,
who served as BCRPA’s president in 2014.

[95]        
Mr. Higo testified that BCRPA expended approximately 500 staff
hours after the injunction was granted on July 28, 2014 in addressing
matters related to Mr. Zakharia’s attacks. Ms. E. Li’s testimony
further supported the fact that many hours were spent addressing matters
occasioned by Mr. Zakharia’s attacks.

[96]        
Mr. Higo stated that the value of the staff time was approximately
$33,000. The Court accepts the $33,000 figure as a reasonable estimate of the
BCRPA’s administrative staff costs incurred.

E.             
INJUNCTION

[97]        
The plaintiffs will also be granted permanent injunction to prohibit any
further defamation. In Farallon Mining Ltd. v. Arnold, 2011 BCSC 1532
(at para. 114), Justice Silverman adopted Justice Chapnik’s language in Astley
v. Verdun, 2011 ONSC 3541:

Permanent injunctions have
consistently been ordered after findings of defamation where either: (1) there
is a likelihood that the defendant will continue to publish defamatory
statements despite the finding that he is liable to the plaintiff for
defamation; or (2) there is a real possibility that the plaintiff will not
receive any compensation, given that enforcement against the defendant of any
damage award may not be possible: see Hunter Dickinson Inc. v. Butler, 2010 BCSC
939 at paras. 75-79; Griffin v. Sullivan, 2008 BCSC
827 at paras. 119-127; Newman v. Halstead, 2006 BCSC
65 at paras. 297-301; Cragg v. Stephens, 2010 BCSC
1177 at paras. 34-35, 40.

[98]        
Mr. Zakharia’s conduct establishes the likelihood that he would,
absent a permanent injunction, continue to defame the plaintiffs. There is also
the real possibility that the plaintiffs will not realize on their respective
awards. Prior to trial, Mr. Zakharia had been granted indigent status.

xi.      passing off and trade-mark
infringement

A.             
Common Aspects

[99]        
As described above, BCRPA had goodwill associated with BCFit. Since
2009, BCRPA had used BCFit to identify and promote the annual fitness
conferences it organized. The testimony of Mrs. Strutt and
Mr. Sheather, in particular, established the recognition and goodwill
BCRPA had developed for BCFit within the fitness community.

[100]    
BCRPA receives no government funding and operates in a competitive
environment. An individual does not need to be registered with the BCRPA in
order to provide fitness training courses to the public. The annual fitness
conference it hosts, which attracts up to 300 registrants, is funded by
registration fees and financial support from third party exhibitors.
Accordingly, the goodwill associated with the trade-mark is particularly
important to BCRPA.

[101]     BCFIT was
registered as BCRPA’s trade-mark on May 27, 2014 in response to Mr. Zakharia’s
use of www.bcfit.ca. On December 3, 2013, BCRPA had previously warned
Mr. Zakharia that his use of the trade-mark would be a trade-mark
infringement.

B.             
Passing off

[102]     In Law
Society, the defendant, in November 2000, obtained from the Canadian
Internet Registration Authority (CIRA) two domain names: www.lawsocietyofbc.ca and www.lsbc.ca. The
defendant used the domain names to direct persons to adult contest websites.

[103]     Since May 1998,
the Law Society had operated and maintained websites, www.lawsociety.bc.ca and www.lsbc.org. Based on
the tort of passing-off the Law Society was successful in obtaining a permanent
injunction to restrain the defendant from using or transferring the domain
names it had registered with CIRA.

[104]    
In Law Society, Justice Sigurdson summarized the tort of passing-off:

[12]      The test for passing-off was described in Greystone
Capital Management Inc. v. Greystone Properties Ltd. (1999), 87
C.P.R. (3d) 43, 46 B.L.R.
(2d) 45 (S.C.), where Madam Justice Stromberg-Stein referred to an
allegation of passing off in the business association or business connection
sense (as opposed to leading the public to believe the defendant’s product or
business was that of the plaintiff). She summarized the leading authority,
correctly in my view, this way (at 50-51):

The tort of passing-off concerns
misrepresentations by one party which damage the reputation or goodwill of
another party. It is necessary to establish three components to succeed in a
passing-off action, either at common law or pursuant to statute. Those components
were set out in Ciba-Geigy Canada Ltd. v. Apotex Inc. (1992), 44
C.P.R. (3d) 289 (S.C.C.):

1. The
existence of reputation or goodwill at the relevant time. This includes
consideration of whether the plaintiff was recognized by the trade name and
whether the trade name was distinctive within the relevant field of activity.

2. A
misrepresentation leading the relevant public to believe there is a business
association or connection between the parties. This includes consideration of
whether the defendants’ use of the trade name is likely to deceive the relevant
public. Any misrepresentation need not be deliberate and proof of intent is
not necessary. Evidence of likelihood of confusion, leading to the possibility
of lost business opportunity, is relevant. However, the establishment of actual
confusion is not required.

3. Damage or
potential damage flowing to the plaintiff as a result of any misrepresentation
due to loss of control over its reputation is presumed.

[Emphasis added in original.]

And further:

[23]      In British Telecom, supra, at 497, it
is acknowledged, as it was in BCAA, supra, that the registration
of a domain name may, in appropriate circumstances, amount to a passing off.
There, the appellants were dealers in domain names. The Court of Appeal said
this:

The placing on a register of a
distinctive name such as marksandspencer makes a representation to persons who
consult the register that the registrant is connected or associated with the
name registered and thus the owner of the goodwill in the name. Such persons
would not know of One In A Million Ltd. and would believe that they were
connected or associated with the owner of the good will in the domain name they
had registered. Further, registration of the domain name including the words
Marks & Spencer is an erosion of the exclusive goodwill in the name which
damages or is likely to damage Marks & Spencer plc.

[24]      I find, hardly surprisingly, that the use of the
name “lawsocietyofbc” in a domain name, without additional words or qualified
by other words, is a representation that the site and the location to which it
is directed is associated with the plaintiff. That is a misrepresentation.

[Bold emphasis in original.]

[105]     Mr. Zakharia
used www.bcfit.ca in order to misrepresent and confuse. The Court
finds that the BCRPA has established the tort of passing-off.

C.             
Trade-mark Infringement

[106]     BCRPA’s registered
trade-mark is for services namely, “developing, arranging, and conducting
educational conferences and programs and providing courses of instruction in
the field of fitness, physical activity, recreational activities and
maintaining personal health”.

[107]     Section 19
of the Trade-marks Act, R.S.C. 1985, c. T-13 provides that the owner of a trade-mark
has “the exclusive right to use throughout Canada of the trade-mark in respect
of those goods or services.”

[108]     Despite
being warned, including formally warned on June 4, 2014, Mr. Zakharia
infringed BCRPA’s trade-marks through the BCfit Website he established. Mr. Zakharia
knew the importance of the trade-mark to BCRPA having attended BCRPA’s annual
educational conference and having been warned previously not to use the
trade-mark.

[109]     Mr. Zakharia’s
purpose was to create confusion about BCFIT by posting or linking negative
comments on the BCfit Website he established. Articles he posted on the website
had, in large font, BCRPA REVIEW and Suzanne Strutt BCRPA.

D.             
Damages

[110]     Ms. Sheppard
sought $10,000 as an award for BCRPA for damages as a result of the passing-off
and trade-mark infringement. The $10,000 included approximately $2,000 to
register the trade-mark. The Court accepts $10,000 is reasonable and, in the
Court’s view, possibly modest in the circumstances. BCRPA’s annual educational
conference is a significant undertaking with revenues generated from
exhibitors, and registrants. The annual fitness conference also serves as a
flagship for BCRPA. $8,000 is a reasonable estimate of the extent to which the
value of goodwill of the trade-mark was depreciated by Mr. Zakharia’s
actions.

[111]     I
initially thought that the $2,000 trade-mark registration costs should not be
included in the damage award because the trade-mark would have likely been
registered in the future in any event. Upon reflection, with Mrs. Strutt’s
testimony in mind as to the reason registration fees (including late fees) were
never waived, I am satisfied that BCRPA, like many non-profit organizations,
managed its financial affairs frugally. It would not make expenditures unless
necessary to do so. There was no necessity until Mr. Zakharia created www.bcfit.ca
for his own purposes. If Mr. Zakharia had observed BCRPA’s warning in December 2013,
the expenditure would have been avoided.

E.             
Injunction

[112]     BCRPA will
be granted the permanent injunction it seeks with respect to passing off and trade-mark
infringement. Mr. Zakharia is also ordered to transfer forthwith the www.bc.fit.ca
domain name to BCRPA.

XII.     injurious falsehood

[113]    
Raymond E. Brown, Brown on Defamation (Canada, United Kingdom,
Australia, New Zealand, United States), 2d ed. (Toronto: Carswell, 1994) vol
9 sets forth the elements of the tort of injurious falsehood (at s. 28.1(1)):

There is a common law action for
injurious falsehood. It involves the publication to a third person of a false
statement reflecting adversely on a person’s business or property, or title to property,
calculated to induce persons not to deal with the plaintiff. In order to
succeed, the plaintiff must show that the published statement is untrue, that
it was made maliciously without just cause or excuse, and that he or she
suffered special damages. The property may be either real or personal,
corporeal or incorporeal, and the plaintiffs interest may be tangible or
intangible, and he or she may have actual possession of the property or future
possession by way of reversion or remainder. Malice is not presumed or implied
from the publication and consists in an intent, in bad faith, to injure the
plaintiff without just cause or excuse. Special damages is considered the gist
of the action and consists of some pecuniary loss on the part of the plaintiff.
It must be the direct and natural consequence of the injurious falsehood. Truth
is a defence and statements issued in or as part of judicial proceedings are
protected by an absolute privilege. A person is protected by a qualified
privilege where he or she asserts honestly and in good faith an interest in
property inconsistent with the person having title to the property.

[114]     Mr. Zakharia
injurious falsehoods were made with actual malice. The falsehoods had no basis
in fact; some of them continuing to the time of trial. Mr. Zakharia used
the BCfit Website despite warning, as a platform for his falsehoods. The false
statements reflected adversely on BCRPA’s business.

[115]     I am
satisfied that there was pecuniary loss resulting from the injurious falsehoods
made by Mr. Zakharia. The loss has been counted under the defamation
award, but I wish to recognize the existence of such loss to demonstrate the
clear basis for a permanent injunction addressing injurious falsehoods.

[116]     BCRPA will
be granted the permanent injunction it seeks with respect to injurious
falsehood.

XIII.    Breach of THE Competition
act

[117]     Where a
person makes a false or misleading representation to the public, it may be the
subject of a private action under sections 36 and 52 of the Competition Act,
R.S.C. 1985, c. C-34.

[118]    
For the purposes at bar, the key provisions of the Competition Act
read:

2. (1) In this Act,

“business”
includes the business of

(a) manufacturing,
producing, transporting, acquiring, supplying, storing and otherwise dealing in
articles, and

(b) acquiring,
supplying and otherwise dealing in services.

“product” includes an article and a service;

“service”
means a service of any description whether industrial, trade,       professional
or otherwise;

….

36.
(1) Any person who has suffered loss or damage as a result of

(a) conduct that is
contrary to any provision of Part VI [s. 52 is in Part VI]…

may, in any court of competent jurisdiction,
sue for and recover from the person who engaged in the conduct or failed to
comply with the order an amount equal to the loss or damage proved to have been
suffered by him, together with any additional amount that the court may allow
not exceeding the full cost to him of any investigation in connection with the
matter and of proceedings under this section.

….

52. (1) No person shall, for the purpose of
promoting, directly or indirectly, the supply or use of a product or for the
purpose of promoting, directly or indirectly, any business interest, by any
means whatever, knowingly or recklessly make a representation to the public
that is false or misleading in a material respect.

(1.1) For greater
certainty, in establishing that subsection (1) was contravened, it is not
necessary to prove that

(a) any person was
deceived or misled;

(b) any member of the
public to whom the representation was made was within Canada; or

(c) the representation was made in a place to
which the public had access.

[119]     Mr. Zakharia
made false and misleading statements in order to promote his business interest.
As noted, he used a false BCRPA certificate in order to register with
CanFitPro. As a result, he would obtain a CanFitPro designation and insurance
coverage he could use to promote himself as a personal trainer.

[120]     In September 2014,
Mr. Zakharia represented himself to Mr. Weltman of Amazing Personal
Training as a BCRPA-PT.

[121]    
As noted, at trial, Mr. Zakharia agreed with paragraph 33 of the
pleaded facts of the notice of civil claim. For ease of reference, paragraph 33
reads:

33.  Zakharia currently operates and maintains a website at www.kitsilanotrainers.com/john- zakharia-in-vancouver/, which includes the following
representations:

Hello. My name is John Zakharia from
Vancouver. I am certified with the BCRPA as a Certified Weight Training
Instructor and a Certified Group Fitness Instructor.[…]

[122]     The
plaintiffs pleaded the Competition Act (see paragraph 36 of the Pleaded
Facts and paragraph 5 of the Legal Basis). Prior to filing the notice of civil
claim, BCRPA incurred costs, such as staff time, investigating matters.

[123]     During
argument, Ms. Sheppard, counsel for the plaintiffs asked that $10,000 be
awarded as investigation costs pre-injunction (July 28, 2014). The
evidence of special damages at trial had focused on the staff costs
post-injunction. That said, BCRPA would have had staff and other administrative
costs pre-injunction, with $10,000 representing an estimate of such costs. The
Court will award $3,000 as the costs of investigation pre-injunction. The lower
amount than that sought recognizes that the investigation was part of BCRPA’s
general efforts directed at dealing with Mr. Zakharia’s publications and
conduct.

[124]     Mr. Zakharia
will also be enjoined from breaching the Competition Act in ways that
are same or similar to the ways he has breached the Competition Act in
the past.

XIV. conspiracy to injure

[125]     The Court
finds that Mr. Zakharia with Jane Doe was part of a conspiracy to injure
the plaintiffs.

[126]    
As Ms. Sheppard describes in her closing submissions:

The tort of conspiracy to injure
is committed where the defendants agree to effect conduct with the predominant
purpose of causing injury to the plaintiff, and the defendants know in the
circumstances that injury to the plaintiff is likely to and does result from
that act: Canada Cement LaFarage Ltd. v. British Columbia Lightweight
Aggregate Ltd., [1983] 1 S.C.R. 452 at 471-472.

[127]     The two
YouTube videos by Mr. Zakharia and Jane Doe, posted by Mr. Zakharia, are
clear evidence of the conspiracy. The wording of the two videos is too similar
to be coincidental. The YouTube videos also show that Mr. Zakharia and
Jane Doe intended to harm the plaintiffs and harm would likely result. I am
satisfied that harm resulted, such as damage to the plaintiffs’ respective reputations.

[128]     As noted,
Mr. Zakharia chose not to testify. In light of the plaintiffs’ case, the
Court has drawn the inference from his silence that he knows the identity of
Jane Doe and did not wish to be confronted as to his involvement in the
conspiracy.

[129]    
Mr. Zakharia’s intent to harm the plaintiffs may further be seen
from his June 6, 2014 letter to the BCRPA where he states (in part):

Your reckless and careless and mean-spirited actions has
caused me loss of income, loss of future income, loss of enjoyment of life, all
stemming from your negligence and malice. Plus other torts which will be delineated
in the approaching days.

I thus request you mail me the amount of 151 247 no later
then Friday June 13 2014 or we will present your demonic and diabolic acts
to a civil jury at the Law Courts on Hornby.

Again, This amount is subject to change due future legal
advice and future assessments from my doctor who will generate a report which
will include the distress, anxiety, insomnia, nightmares mental suffering and
hopelessness which you caused me.

Of course over 500 000 people
will be made aware of your malice and venomous hate when I exercise my
right to free speech which only a mentally deranged and hostile dictator has a
problem with.

[130]     The June
6, 2014 letter was marked without prejudice. In Monument Mining Limited v.
Balendran Chong & Bodi, 2012 BCSC 389, a letter marked without
prejudice contained a threat to the effect that if money was not paid to the
defendants, “widespread, harmful and untrue allegations of fraud” directed
towards the plaintiff would be forthcoming (at para. 17). Justice Goepel (then
sitting on this court) noted at paragraph 21 that “The authorities have long
recognized that litigation privilege does not attach to egregious threats”.

[131]     Mr. Zakharia’s
June 6, 2014 letter has a similar threat: in essence, pay me now or I will
cause the past defamatory statements to be published to 500,000 people.

[132]     The Court
adopts the language of Justice Goepel at paragraph 27 of Monument Mining:
“The threat is of such a character that the public interest in its disclosure
outweighs the public interest in protecting settlement communications”.

[133]     With the
damage awards set forth above, a further award would result in duplication.
Accordingly, the Court will not make a further award under this tort as against
Mr. Zakharia. If Jane Doe’s identity becomes known, the plaintiffs have
liberty to apply.

[134]     Mr. Zakharia
and Jane Doe are also enjoined from conspiring to further injure the plaintiffs
in the same or similar manner as they have done in the past.

IX.           
conclusion

[135]     Mrs. Strutt
is awarded $115,000.

[136]     BCRPA is
awarded $106,000.

[137]     The
counterclaim is dismissed.

[138]     A
permanent injunction that accords with these Reasons is granted.

[139]     Counsel
for the plaintiffs asked the Court for the opportunity to make submissions
regarding costs, including special costs. I ask that a counsel arrange through
Trial Scheduling a 9 a.m. one-hour hearing within 90 days of the release of
these Reasons.

[140]    
I also ask that counsel for the plaintiffs submit through Trial
Scheduling the Order for the permanent injunction as soon as reasonably
possible. If counsel wish to appear before me, counsel may arrange a 9 a.m.
one-hour hearing, and, if desirable, on short notice, through Trial Scheduling.

“Funt
J.”