Judge Weatherill G C Re Kazakoff V Taft 05-04

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Kazakoff v. Taft,

2017 BCSC 737
Date: 20170504
Docket: S26506
Registry: Cranbrook
Between:
Devin Kazakoff
Plaintiff
And
Gerry Taft
Defendant
Before: The Honourable Mr. Justice G. C. Weatherill
Reasons for Judgment
Counsel for the Plaintiff: N.M. Robertson, Q.C.
Counsel for the Defendant: B.M. Desruisseaux
Place and Dates of Trial: Cranbrook, B.C.

April 1113 and 1821, 2017
Place and Date of Judgment: Cranbrook, B.C.
May 4, 2017
Kazakoff v. Taft Page 2
I. INTRODUCTION
[1] The plaintiff claims damages against the defendant for defamation.
II. BACKGROUND
A. The Parties
[2] The plaintiff is 31 years old. He has compassion for animals. He has been a
vegan since the age of 11, when he learned the meat he had been eating came from
animals. He became an animal rights activist.
[3] The plaintiff lives and works in and has been a long-time resident of the small
British Columbia community of Invermere. Invermere is located in the Columbia
River Valley in the provinces East Kootenay region. It is a community of
approximately 3,000 full-time residents. When combined with the nearby
communities of Fairmont and Radium, the population is approximately 10,000. The
areas various recreational resorts and other amenities are popular among
vacationers, especially during the summer months when the population of the area
increases to approximately 40,000.
[4] The defendant is 35 years old. He, too, is a small business owner who has
also lived and worked in Invermere his entire life. In addition to his various real
estate investment and business enterprises, he has been involved in the towns
politics since the age of 20 when was elected as a District Councillor. He was
elected Mayor of Invermere in 2008 at the age of 26, a position that he continues to
occupy. He has also been a director of the East Kootenay Regional District since
2008. He is currently the New Democratic Party candidate for the electoral district of
Columbia River-Revelstoke in the upcoming provincial election to be held on May 9,
2017.
[5] The defendant described himself as a hardworking, approachable, and

regular guy whose reputation in the community is as a mayor whose style of
leadership is flexible and open to dialogue and conversation with Invermeres
constituents.
B. Urban Deer Issue
[6] Since at least 2011, many East Kootenay communities, including Invermere
and Cranbrook, have experienced an influx of deer into their urban environs. Many
residents believe them to be a serious nuisance and there was widespread
agreement among the residents of the area that something had to be done about the
problem. However, views differed and, indeed, became polarized as to the solution.
[7] The options included leaving the deer alone and taking steps to minimize the
availability within the urban areas of food sources, erecting fencing, using trained
dogs to herd them away from the area, injecting the deer with
immunocontraceptives, tranquillizing and relocating them or, the most extreme,
culling them. Culling is generally done by trapping the deer with the use of clover
net traps and then killing them with the use of a bolt gun.
[8] The plaintiff was one of the more prominent and vocal activists against a cull
of the deer. He supported any of the other options available for controlling the urban
deer population. Other prominent activists who shared his views were Shane
Suman and Karen Brown. The deer management issue became emotionally
charged.
[9] In the summer of 2011, the District of Invermere established a committee of

its citizens (Deer Committee) to study the urban deer issue and recommend
various deer management options. The defendant became the Districts
spokesperson on the issue.
[10] The culling option began to gain momentum and, in the summer of 2011, the
Deer Committee recommended using a cull as one means of deer management.
The Deer Committee was then disbanded.
[11] At approximately that same time, the Invermere District Council voted to seek
a deer cull permit from the provincial government.
C. The Anti-Cull Movement
[12] After a municipal election in November 2011, a number of anti-deer cull

groups began to emerge. They included:
a) in late 2011, the Invermere Deer Protection Organization (IDPO). The

plaintiff was a founding member. Shane Suman and Karen Brown were
also members. Mr. Suman created and maintained an information
website which was used to inform the public about deer culls and to raise
funds;
b) in 2012, the IDPO was replaced with the Invermere Deer Protection
Society (IDPS) which was incorporated principally to obtain status as a
party in an anti-cull injunction Petition that was filed in this court in 2012
(referred to below). The plaintiff was the president and one of five
directors of IDPS;
c) the BC Deer Protection Society (BCDPS) was incorporated in 2013. It

was a coalition of five deer protection groups that had formed in British
Columbia, including the IDPS. It is essentially an on-line organization with
members across British Columbia and elsewhere. The plaintiff is one of
seven directors of the BCDPS but has never been an officer of that
society. He became its media spokesperson in the Columbia Valley;
d) Invermere Deer Protection, which is a Facebook site on which Ms. Brown

publishes commentary against the deer cull with a view to keeping the
debate alive in the hope of discouraging future culls.
[13] The IDPS and BCDPS maintained publically available Facebook pages which
were used to share viewpoints and articles pertinent to the deer cull debate. The
posts were and continue to be made by Ms. Brown. Readers are invited to post their
own comments. Although the plaintiff had some relatively minor involvement in the
IDPOs website, that site disappeared when the IDPS was formed. Thereafter he
had no involvement in the Facebook publications or posts by the IDPS or the

BCDPS.
[14] In late 2011, Invermere obtained a permit from the provincial government for
a deer cull.
[15] In early 2012, given the growing opposition to the deer cull, Invermere District
Council decided to establish a new Deer Committee. The plaintiff was one of the
citizens appointed to it in order to provide balance on the deer cull issue.
[16] On January 10, 2012, Invermere Council voted to proceed with the cull and a
contractor was hired over opposition from the anti-deer cull groups and activists. It
did so without having conducted any statistically valid polling of the community
regarding the issue.
[17] On February 9, 2012, the IDPS and Mr. Suman sought and obtained an ex
parte interim injunction restraining the deer cull. Although the plaintiff was the
president of the IDPS and was active in support of the Petition, he was not a party to
it.
[18] The Petition was the genesis of many heated social media and other
exchanges between the anti-cull people (including Mr. Suman, the plaintiff, and
Ms. Brown) and the pro-cull people, including the defendant and the Invermeres
District Council.
[19] The defendant was an active Facebook user with approximately 1800
friends. He used Facebook to conducted business, obtain much of his news and
encourage communications from his constituents. He published a Facebook post as
part of a social media conversation regarding the Petition and the 14 affidavits that
had been filed in support advising that people should also know the [plaintiff]
doesnt actually live within the District of Invermere boundaries. He did not mention
the names of any of the other 13 affiants.
[20] Shortly after the injunction was granted, the plaintiff was removed from the
Deer Committee. The defendant testified that the reason for his removal had
nothing to do with the Petition, but rather because the District Council learned the
plaintiff lived outside of the boundaries of Invermere.
[21] In the face of the growing opposition to a deer cull, the District of Invermere
conducted a non-binding opinion poll to ascertain the views of its citizens on the
issue. The following question was asked:
Do you approve Council of the District of Invermere to use a deer cull as one
of the methods to control the urban deer population?
[22] Of the approximately 2,500 eligible voters, 988 (40%) voted on the opinion
poll. Of those, 729 approved the deer cull and 259 were opposed to it.
[23] The defendant testified that he believed the opinion poll results were reflective
of the views of his community which he considered had been obtained
democratically.
[24] On October 25, 2013, the Petition seeking a permanent injunction was
dismissed. Costs were awarded against the IDPS and Mr. Suman. The defendant
agreed, on cross-examination, that he was frustrated over the fact that the District
of Invermere was only able to recover approximately one-third out its out-of-pocket
costs of the Petition.
[25] Upon the dismissal of the Petition, the IDPS was formally wound up. The
plaintiff began to devote his energies to a new flooring business that he and his
parents had opened in Invermere. His activism activities substantially diminished.
D. The Kimberley Incident
[26] Although the plaintiffs activism diminished after the Petition was dismissed, it
did not end altogether.
[27] On February 17, 2014, the plaintiff was quoted in a local newspaper as a
spokesperson for the BCDPS. He stated:
Our groups have fought long and hard for two years opposing those barbaric
and pointless cull.
We use every legal tool at our disposal to put an end to the cruelty. We do
not engage in criminal activity. The BCDPSs mission is advocating for
compassionate conservation through education, research, and political
action.
[28] On February 27, 2014, the plaintiff and an accomplice destroyed two deer
traps in Kimberley, British Columbia. The plaintiff testified that he acted on his own,
without the knowledge of the IDPS or the BCDPS, out of a sense of frustration
regarding what had taken place during a deer cull in Fernie, British Columbia. He
perceived that the cull contractor there had violated Fernies deer cull permit and
would do the same in Kimberley. He testified that, although he knew that destroying
deer traps was illegal, he did not realize that it was a criminal act. Rather, he
considered it an act of protest and, hence, was morally justified.
[29] The defendant testified that he learned of the Kimberley incident through the
local media which reported extensively that the plaintiff had been arrested for
vandalizing deer traps while wearing a mask.
[30] The plaintiff testified that he is ashamed and embarrassed by what he did in
Kimberley and that, at the time, he had lost his way.
[31] Thereafter, the plaintiffs activism activities declined even further and have
largely been confined to attending online BCDPS meeting, acting as a
representative of the BCDPS for Invermere and attending the occasional protest
rally, mostly in places other than Invermere. He also attended a three-day workshop
in Montana to learn about deer contraception techniques.
[32] The Crown proceeded summarily on one charge against the plaintiff.
[33] On March 30, 2015, the plaintiff pled guilty in Provincial Court to a single
count of mischief under $5,000 in connection with the Kimberley incident. On
April 1, 2015, he was sentenced and given a 30-day conditional discharge by the
Honourable Judge R. Webb. The 30-day probationary condition imposed on the
plaintiff was that he pay restitution of $735.50 to the City of Kimberley, $1,000 (joint
and several with his accomplice) to the Ministry, and a victim fine surcharge of
$1,040. The plaintiff paid all of those amounts the following day. Accordingly, his
discharge became absolute on May 1, 2015 and, as a result, he does not have a
criminal record.
[34] In the course of sentencing the plaintiff, Judge Webb said:
[52] One of the factors that tipped the scales was Mr. Kazakoffs
acknowledgement that between him and Mr. Sikora, he was the leader in this
criminal activity. That admission, clearly contrary to his interests from a
sentencing perspective, supports may view that he is taking responsibility for
his actions.
[53] Mr. Kazakoff, your candour is appreciated.
[35] The plaintiff testified that he was very appreciative that Judge Webb gave him
a second chance to move forward with his life and new business without a criminal
record.
[36] The plaintiffs conditional discharge sentence was widely and prominently
published in the Invermere media in both printed and on-line news publications
under the following headlines: Kazakoff fined, conditionally discharged; Deer trap
vandal fined, discharged; No criminal record for IDPS president in trap tampering.
[37] One of the news publications was the Columbia Valley Pioneer, a free weekly
publication that is distributed widely and is readily available throughout the Columbia
Valley including throughout Invermere. Its publisher, Dean Midyette, testified that it
distributes 6,400 copies at 84 distribution sites in the area, including 25 copies
weekly at Gerrys Gelati, one of the defendants businesses where the defendant
spent most of his working hours at the time. It also publishes an online edition. A
second news publisher is the Invermere Valley Echo which publishes 2,100 copies
of a written edition weekly as well as a subscription on-line edition. Ten copies of
the printed publication are distributed through Gerrys Gelati each week.
[38] The online versions of both news outlets are identical to the weekly paper
editions, however the news is published on-line as it breaks rather than weekly.
[39] The defendant admitted that he was in and around the Invermere area
between April 1 and 14, 2015, with the exception of between the morning of April 9
and the evening of April 10, when he was in Cranbrook for meetings. He testified
that he was very busy at that time with his mayoralty and related duties, his various
business activities as well as with his newborn child. He testified that he was
scrambling to keep up with normal life and that, although his communicative life
centers around his various electronic devices, his normal pattern of reading news
was disrupted at that time. He testified that, despite the deer cull issue being of
interest among his social media contacts and friends, the plaintiffs sentence was not
a prominent topic of discussion within his social or business circles, that his
recollection of what he knew regarding the plaintiffs sentence was hazy, and that he
recalls only that the plaintiff pled guilty, although he could have known that the
plaintiff received a conditional discharge.
E. The Cranbrook Deer Cull
[40] In or about 2015, the City of Cranbrook obtained a permit from the Minister of
Forests, Lands and Natural Resources (Minister) allowing a cull of the deer
population in the City. It commenced the cull in or about the fall of 2015. The cull
was and remains a controversial decision and has attracted public debate.
[41] On Friday, January 8, 2016, the BCDPS complained in writing to the Minister
that the Cranbrook deer cull was not being carried out in accordance with the permit
that had been granted (Complaint). The Complaint described in detail three
incidents in support of a request for action by the Ministry.
[42] On Tuesday, January 12, 2016, the BCDPS wrote directly to the Cranbrook
Mayor and Council asserting, inter alia, violations of the permit and asking that the
City take certain corrective steps (Cranbrook Letter).
[43] On Tuesday, January 12, 2016, the BCDPS issued a press release (Press
Release) describing both the Complaint and two of the cull incidents that were
detailed in it (Incidents). The Incidents concerned fawns being captured and
euthanized in traps during the cull. The Press Release provided an electronic link to
a video (Video) which showed the Incidents.
[44] The Press Release stated:
Undercover footage shows the

cruelty of Cranbrooks secret deer cull
In mid-December 2015, Cranbrook began to cull deer without notification to
area residents. The only public notification came from the BC Deer
Protection Society and Animal Alliance of Canada in an ad that ran in the
Cranbrook Townsman prior to the start of the cull.
On Friday, January 8, 2016, the BC Deer Protection Society lodged a formal
complaint to the Minister of forests, Lands and Natural Resource Operations
about incidents involving fawns in Clover traps. The incidents which show
the cruelty of the cull, were captured through photographs and video footage.
Two incidents in particular reveal violations of the terms of the cull permit
issued by the Minister.
Footage for one incident shows a fawn captured in a trap (unedited video
documents the fawn pacing for over two hours). The cull contactors [sic]
arrive, collapsing the trap on the animal and applying the bolt gun. The cull
contractors stand and the fawn moves. They apply the bolt gun a second
time. The fawn moves again as the contractors try to erect the trap. They
drop it and observe the fawn. One contractor starts to reach for the bolt gun
but stops. They proceed again to erect the trap and drag the fawn away by
the hind leg. In both cases the fawn is seen moving. The cull contractor
returns immediately leaving the fawn still alive and unattended. A total of six
minutes passed between the arrival of the contractors and the removal of the
deer. (bcdeer.org)
Photographs from a second incident show two fawns entangled in a trap that
has collapsed on them. They remain entangled and compressed for at least
two hours prior to the arrival of the cull contractors. It is not known at this
time whether the fawns struggle was so violent as to dislodge the
mechanism holding the trap upright or whether the mechanism was faulty.
Regardless, no-one checked the trap during that two hour period to end the
suffering of these two animals. (bcdeer.org).
In the letter to the Minister, we urge him in the strongest possible terms to
end the cull, conduct a full investigation of the violations of the permit and lay
charges where appropriate. In addition, we ask that the permit for the current
contractor be revoked until the investigation is complete.
SOURCE Animal Alliance of Canada
For further information:
Daven Kazakoff: [contact information omitted]; Liz White: [contact information
omitted]; Barry MacKay: [contact information omitted]; Sherry Adams:
[contact information omitted].
[45] The plaintiff was not involved and played no part in the creation or distribution
of the Complaint, the Cranbrook Letter, the Press Release, or the Video, each of
which was produced by either or both of Liz White, a political and animal activist
from Toronto and/or her colleague, Barry MacKay from Markham, Ontario.
Ms. White is the principal behind a group called Animal Alliance of Canada. In fact,
the plaintiff was out of the country from December 23, 2015 to January 9, 2016. He
did not see the Video until January 10, 2016. His involvement thereafter was limited
to publishing its existence on his personal Facebook account and allowing people to
view it there if they chose to do so.
[46] The plaintiff was aware of the Cranbrook Letter before it was sent, but had no
input into it or the decision to send it. He had also read a draft of the Press Release
before it was issued and, although it had not been discussed with him, he was not
surprised to see his name had been included as a contact person and did not object
to its inclusion.
F. The Alleged Defamation
[47] The website www.e-know.ca (e-know), based in Cranbrook, publishes

news and advertisements, including news articles deemed by the publisher to be of
interest to those in the East Kootenays and beyond. e-know invites its readers to
post remarks concerning its articles and is connected to various social media sites
such as Facebook and Twitter.
[48] On Wednesday, January 13, 2016, e-know published an article, based on the
Press Release, concerning the Incidents and erroneously stated that the Press
Release had been signed by the four contact persons, including the plaintiff. The
article included the reference in the Press Release to bcdeer.org, which provided
an electronic link to the Video.
[49] On the same day, January 13, 2016, the defendant published the following
words (collectively referred to herein as the alleged defamatory words) in the
reader response portion of the e-know website immediately below the article:
Signed by the same Devon [sic] Kazzakof [sic] who was convicted of
tampering with and destroying deer traps in Kimberley. I wouldnt be so quick
to believe convicted felons who have extreme positions on animal rights
issues and who do not respect the decisions of democratically elected local
governments doing what the majority of their constituents want.
Gerry Taft January 13, 2016 at 6:29 pm
[50] The defendant conceded on cross-examination that he only skimmed the e-

know article at home while eating dinner and published his post a minute or two
later based upon his vague memory of the plaintiffs court proceeding nine months
earlier. He further testified that, at the time of his post, he either had not known or
had forgotten that the plaintiff had received a conditional discharge. His post was
based simply on his recollection that the plaintiff had been caught and had pled
guilty to a crime and had been convicted. He admitted on cross-examination that
he had no idea as to the charge the plaintiff had pleaded guilty to.
[51] The defendant testified that, when he published the alleged defamatory
words, he had not seen the Video and had no evidence that any part of the Press
Release was inaccurate. He had no reason to doubt the authenticity of either. He
testified that he published the alleged defamatory words because he felt obliged as
the Mayor of Invermere and as a central person who had been involved in and knew
the history of the deer cull debate to explain the context of the Press Release and
what he understood to be true. He wanted the readers to be aware that the plaintiff
was not independent or unbiased in respect of the deer cull issue. He felt that the
context of his post provided a balanced viewpoint and that it encouraged the reader
to not necessarily accept what the plaintiff said at face value.
[52] The defendant testified that he thought that all of the facts in his post were
true and that the opinions he expressed were honestly held. He equated the word
felon to a criminal, someone who is guilty of a crime or who had broken the law.
He testified that he was unaware of and did not understand the distinction between a
conviction and a conditional discharge.
[53] The defendant testified that he referred in his post only to the plaintiff and not
to the others who were described as signatories to the Press Release because he
was most familiar with the plaintiff and only the plaintiff could be seen to be biased
as a result of the Kimberley Incident.
[54] The defendant insisted that, although he disagreed with the plaintiffs position
and tactics regarding the deer cull, he had no personal animosity towards him.
[55] The defendant testified that he did not think his post would be of interest to
anyone other than e-knows local readers.
[56] The defendant admitted that he did not know who the directors or officers of
BCDPS or IDPS were at the time he published his post. He also admitted that he
had never seen any media report or court document describing the plaintiff as
having been convicted. He did not research the definition of convicted felon before
he published his post, but was aware his position as the Mayor of Invermere carried
the weight of that office.
G. The Aftermath
[57] The plaintiff first learned of the defendants post of the alleged defamatory
words from Ms. Brown on January 14, 2016. He testified that he was alarmed by
it. He viewed himself as a public figure in the animal rights community and was
concerned that his reputation in the eyes of those who did not know him both within
that community as well as in his business world may be damaged.
[58] Ms. Brown testified that she was in shock and disbelief that the defendant
would had used the phrase convicted felon and had implied the plaintiff could have
fabricated the Video.
[59] Several replies were published by e-know to the defendants post, two of
which were by persons unknown to either the plaintiff or the defendant. On
January 14, 2014 at 5 p.m., the following was posted by a J Breton in response to
the defendants suggestion that readers should not be quick to believe convicted
felons, which the defendants admitted was a reference to the plaintiff:
I can believe the video footage showing the offence!

[60] On January 14, 2016 at 8:55 p.m., a Katie Fraser published the following
reply immediately below J. Bretons reply:
First of all Mr. Taft, if you are going to lobby accusation, you could at least
spell Mr. Kazakoffs name right. Second of all, he received a conditional
discharge for committing public mischief in the case of the Kimberley traps
being vandalized. Thats a pretty big difference from being a convicted
felon.
Talk about spinning the truth into an exaggerated lie!!! WHY WOULD
ANYONE BELIEVE A WORD YOU SAY when you apparently cannot tell the
truth yourself?

Furthermore, HOW CAN YOU DENY the footage??? really??? You think this
article is made up by Mr. Kazacoff?? [sic] So they acted out this footage??
Really???
Id actually like to point out that what you are saying is close to slanderous
and defamation of character. I dont know Mr. Kazakoff but I followed his
story in the newspapers
You are a public elected official and as such you may want to rethink
slandering members of the East Kootenay and making accusations that news
releases with VIDEO FOOTAGE and PHOTOS are made up!!!
Shame on you!!!
[61] Although the defendant read these responses within a day or two of them
being posted, he did not take any steps to correct his post because he considered
them as merely adding to the ongoing dialogue and providing balance to his own
comment.
[62] Both the plaintiff and Ms. Brown testified that they knew the defendant to be
active on Facebook, and that he routinely advertised that he could be contacted
through his Facebook page.
[63] At 9 p.m. on January 14, 2016, the plaintiff sent a private message to the
defendant through the latters Facebook page stating:
Take down the defaming comment you made about me on the e-know
Facebook page immediately.
The plaintiff testified that he elected to communicate his demand via Facebook
rather than by telephone both because of the late hour and because he wanted a
record of his demand.
[64] Despite his active use of Facebook, the defendant denied having read the
plaintiffs demand at the time. He testified that messages received from those who
are not on his friends list are relegated to a message box called Other, which he
checked only when he was anticipating receipt of such messages, for example,
when he was advertising for staff. He testified that he did not read the plaintiffs
January 14, 2016 message until he was alerted to by a letter dated January 25,
2016 from plaintiffs counsel.
[65] Having received no response from the defendant to his Facebook

communication, on January 21, 2016, the plaintiff sent an email directly to the
publisher of e-know requesting that the defendants post be removed. The publisher
did so within one hour of receiving the plaintiffs email.
[66] The plaintiff retained counsel who, by letter dated January 25, 2016, wrote to
the defendant pointing out that the plaintiff had never been convicted of a criminal
offence, that he was not a convicted felon. The letter demanded that, within two
days, the defendant publish an apology in the following words:
On January 13, 2016 at 6:29 pm I posted a comment on this website

concerning Mr. Devin Kazakoff in which I accused him of being a convicted
felon in connection with destroying deer traps in Kimberley. My comment
was not true and I wish to retract it. Further, I hereby tender my unconditional
apology to Mr. Kazakoff, to e-know and to your readers.
[67] No such apology was forthcoming from the defendant. Instead, the defendant
sent an email to plaintiffs counsel stating:

Until reading [your] letter, I was unaware of any attempts made by
Mr. Kazakoff to ask me to remove any online posts. After noting this claim,
I checked my facebook account and realized that in an other or junk mail
category there was a terse message from Mr. Kazakoff dated January 14th.
Based on this all being new information, the timelines and demands set out in
your letter are completely unrealistic and do not provide me with adequate
time to seek legal advice.
Further, it is my opinion that Mr. Kazakoff did not make effective attempts to
contact me by telephone, mail, email, or in person. The people he had hand
deliver this letter had no problem finding me. In the past Mr. Kazakoff has
communicated with me by telephone and my cell phone number is posted

publically and easily obtained.

The question of claimed false and libellous statements is not whether
Mr. Kazakoff vandalized deer traps in Kimberly - he plead [sic] guilty to this
offense [sic].
I misinterpreted a guilty plea to mean the same thing as being convicted and
further I believe in common language anyone found guilty of anything is often
referred to as a felon.
[68] By letter dated February 4, 2016, plaintiffs counsel wrote to the defendant a
second time, offering a further opportunity for him to publish a retraction and
apology, including an apology for insinuating that the plaintiff should not be believed.
[69] The defendant responded by email of the same date stating his view that the
current exercise is designed more in trying to tell me what to say and what not to say
than it is about legal action. The defendant testified that he viewed plaintiffs
counsels letters as an attempt to muzzle him on the deer cull issue and that he
doesnt like being told what to say. He wrote:
I am not in agreement with the claims of defamatory impressions. I made a

mistake in the legal distinction between being convicted and pleading guilty
and getting a conditional discharge, and I am willing to apologize for that
mistake. The rest of post was my opinion (and fair comment) that someone
who has vandalized deer traps and has taken an extreme position on animal
rights issues is not an unbiased source of information and whatever
information they are providing should be viewed within the context of their
bias. I think my opinion is factually true, and not something I am willing to
apologize for.
I think it is important to note that I did not call Mr. Kazakoff a liar and I did not
say that he staged or fabricated anything. To somehow infer or suggest that
I said such things is untrue and unfair.
Since it appears that an apology is important to Mr. Kazakoff, I have
submitted an apology to the page on e-know where the original post was
posted
[70] The defendant testified that he stands by the position he took in that email.
When it was pointed out to him that at least three people had responded to his post
to the effect that he had inferred or suggested Mr. Kazakoff had staged or fabricated
the Video, he responded that those responses were not what a reasonable person
would have responded.
[71] The defendant submitted the following apology to e-know, which was
published on February 4, 2016:
On January 13th, 2016 at 6:29 pm, I posted a comment stated Mr. Devin
Kazakoff was a convicted felon in relation to destroying deer traps in
Kimberley (the post has since been removed). After receiving a letter from a
lawyer representing Mr. Kazakoff, a legal distinction has come to my
attention, and I would like to state that this comment was not true and I wish
to retract it. Mr. Kazakoff plead [sic] guilty to destroying deer traps in
Kimberley and received a conditional discharge, he was not convicted of a
crime and does not have a criminal record, and is not a felon. I hereby tender
my unconditional apology to Mr. Kazakoff, to e-know (and its [sic] readers).
[72] The apology did not include a retraction of any suggestion that the plaintiff
was not worthy of belief, as had been requested by plaintiffs counsel.
[73] At no time prior to publishing his apology did the defendant seek legal advice.
[74] The following day, the defendant sent an email to plaintiffs counsel
complaining of being harassed by the plaintiff. The alleged harassment took the
form of a combination of:
a) numerous hand delivered legal letters being presented at my place of

business activities;
b) the not so vague threats of say what we want you to say and dont say
anything else or well sue you; and
c) a full page ad in a local Kimberley newspaper with a photo showing a

trapped deer, decrying the deer cull, referring to the Video and containing
the words: Hidden Cruelty. What Mayor Taft and Invermere Council dont
want you to see about the Invermere deer cull.
[75] The numerous hand delivered legal letters were in fact the two letters from
plaintiffs counsel referred to above demanding an apology. The threats were the
apology demands themselves. The full page ad was prepared, placed and paid for
by the Animal Alliance of Canada. Although the plaintiff had advance knowledge of
and agreed to its placement in the newspaper, he played no part in its preparation or
distribution.
III. RULING DURING TRIAL ON SCOPE OF EVIDENCE
[76] During the course of his cross-examination of the plaintiff, counsel for the
defendant sought to introduce in evidence a transcript of the plaintiffs March 30,
2015 court appearance at which he pleaded guilty to the summary conviction
offence of mischief under $5,000 (Transcript).
[77] The Transcript had been obtained shortly before commencement of the trial.
Counsel for the defendant submitted that the Transcript contained an admission by
the plaintiff that he wore a balaclava during the Kimberley incident. Counsels
argument was that, because the plaintiff admitted to wearing a balaclava at the time
of the mischief, he was guilty of an indictable offence under s. 351(2) of the Criminal
Code, R.S.C. 1985, c. C-46 and, therefore, the use of the phrase convicted felon
by the defendant in his January 13, 2016 post was justified.
[78] Counsel for the plaintiff vigorously opposed the Transcript being introduced in
evidence based not only on the fact that it was not listed and received until the
Friday before the commencement of trial, but also because it had no relevance to
the issues in this case.
[79] Section 351(2) of the Criminal Code provides as follows:
(2) Every one who, with intent to commit an indictable offence, has his
face masked or coloured or is otherwise disguised is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten years.
[80] I have read the portions of the Transcript relied upon by defendants counsel
for the assertion that the plaintiff admitted to having worn a balaclava. There is no
such admission. Rather, there is a recitation by Crown counsel of the circumstances
that led to the plaintiffs arrest which plaintiffs counsel indicated were generally true.
The following is a summary of those circumstances:
a) officers observed an individual wearing a balaclava running from them, get

into a vehicle and drive away; and
b) that same vehicle was later located by other officers and stopped. The
plaintiff was in the drivers seat and balaclavas were found in the back
seat.
[81] Based upon these circumstances, counsel for the defendant submits that the
Transcript constitutes an admission by the plaintiff that he was wearing a balaclava
with the intent to commit an indictable office and is, therefore, guilty of an indictable
offence under s. 351(2) of the Criminal Code.
[82] Counsel for the defendant relied on the decision of this court in Jay v.
Hollinger Canadian Newspapers, Limited Partnership, 2002 BCSC 1655. In that
case, the plaintiff, a city councillor, claimed damages for defamation arising out of a
newspaper article stating that he had been rejected as a Liberal Party candidate
because, many years earlier, he had pleaded guilty to assault with a noxious
substance and that he had defied a court order to stay away from the victim. In fact,
he was convicted of the breach of undertaking and received a conditional discharge
for the assault. The defendants acknowledged at the opening of trial that they were
incorrect in stating that the assault was with a noxious substance, but maintained the
plea of justification nevertheless. The defendants were permitted to obtain evidence
from the plaintiff as to the manner in which the offence to which he pled guilty took
place.
[83] In dismissing the action, McEwan J. held, at para. 43:
[43] The first thing that must be said is that I do not think the submission
that the words identify a specific charge rather than a manner of committing
the offence is entirely accurate. There is no mention of a charge in the words
published. The phrase is pleaded guilty to assaulting a Nelson resident
with a noxious substance. While it may be possible to read this as implying
a specific charge, I think is more obviously describes a manner of committing
an assault. I think this renders material any difference in degree between
what was alleged and what occurred in assessing the sting of the words or
in assessing whether the substance of the words was true.
[Emphasis added]
[84] Justice McEwen went on to say, at para. 50:
[50] That whole exercise was something of a diversion. It is not now

possible or desirable to argue what happened beyond what the record
shows Mr. Jay accepted when he was sentenced. The whole debate was,
however, the very sort of thing Mr. Jay was telling the Liberal Party could be
managed, perhaps advantageously, in a public political campaign. He even
prepared scripts to help others, including the Party leader, deal with the
issue.
[85] After reviewing the transcript of the sentencing hearing, McEwen J. stated, at
para. 53:
[53] What this ultimately comes down to is, in my view, not so much a
question of reconciling competing authorities, as of deciding on the specific
facts, whether the phrase with a noxious substance is a material
statement or a mere error in detail. In this regard cases that turn on the
proposition - with which there can be no dispute - that it is not permissible to
bring in evidence of misconduct on other occasions to justify a charge of
misconduct on a specific occasion, are I think, of limited utility. The
defendants description of the plaintiffs conduct as assault with a noxious
substance does not constitute an allegation of a different event in legal
terms than the common assault to which he pled guilty and for which he was
given a discharge. The question becomes whether the failure to establish
that the event occurred in the particular manner alleged is fatal to the plea of
justification, which, in turn, can only be assessed by comparing the sting of
the published words with the effect of the actual facts (that is, the facts on
the record which Mr. Jay cannot effectively dispute).
[Emphasis added]
[86] In contrast to the circumstances in Jay, counsel for the defendant here sought
to base the defendants plea of justification on proof that the plaintiff was guilty of an
indictable offence for which he did not plead guilty and had never been tried, let
alone convicted. The defendant wished to prove in this civil trial that the plaintiff was
guilty beyond a reasonable doubt of a criminal offence other than that in respect of
which he had pleaded guilty and was given a conditional discharge. The RCMP and
conservation officers who had been involved in the plaintiffs arrest were on the
defendants witness list for trial.
[87] I ruled on the basis of irrelevance that the defendant was not permitted to rely
upon the Transcript in evidence at the trial. I also ruled on the basis of irrelevance
that the defendant was not permitted to cross-examine the plaintiff on or introduce
any evidence in respect of any charges not successfully prosecuted against him.
[88] I also cautioned defendants counsel, repeatedly, that I was concerned with
his tactic of advancing the defence of justification on the basis of an s. 351(2)
argument.
IV. PLEADINGS ISSUE
[89] The British Columbia Court of Appeal reiterated the importance of pleadings
in a defamation action in its very recent decision in Weaver v. Corcoran, 2017 BCCA
160 at paras. 6365:
[63] The function of pleadings is to define and clarify the issues of fact and
law for determination. Pleadings give opposing parties fair notice of the case
to be met and set the boundaries and context for matters such as pre-trial
discovery, presentation of evidence and argument at trial. The plaintiff
defines the issues by stating, succinctly, the material facts for each cause of
action, namely, those necessary to support the complete cause. Upon
seeing the case to be met, the defendant responds in a manner which allows
the court to understand the issues of fact and law that must be decided: Lax
Kwalaams Indian Band v. Canada (Attorney General), 2011 SCC 56 at
para. 43; Homalco Indian Band v. British Columbia, [1998] B.C.J. No. 2703 at
para. 5 (S.C.).
[64] In defamation actions, pleadings are exceptionally important. This is
due in part to the serious nature of defamation allegations and the
significance of context in assessing them in an appropriately informed, well-
balanced way. Traditionally, defamation pleadings have attracted a more
critical evaluation than those in other causes and have been held to a higher
standard regarding the precision with which material facts must be
pleaded. This enhanced judicial scrutiny is justified based on the need to
avoid unwarranted fishing expeditions and the critical importance of the
defendant knowing clearly the case to be met: Laufer v. Bucklaschuk (1999),
181 D.L.R. (4th) 83 at para. 24 (M.B.C.A.); The Catalyst Capital Group Inc. v.
Veritas Investment Research Corporation, 2017 ONCA 85 at paras. 2225.
[65] More recently, courts have applied greater flexibility when analysing
defamation pleadings, at least in the early stages of a proceeding. While the
need for enhanced scrutiny and precise pleadings remains, it is recognised
that plaintiffs may be unable to provide full particulars of allegations prior to
discovery. For this reason, where a plaintiff pleads a prima facie case of
defamation, including all reasonably available particulars of defamatory
material, the pleadings may stand despite a lack of detailed facts outside the
plaintiffs knowledge: Catalyst Capital Group at paras. 2529. Nevertheless,
given the fundamental values at stake in a defamation action, it remains
particularly important for parties to plead and adhere to clearly defined issues
of fact and law.
[90] The plaintiffs Notice of Civil Claim filed March 24, 2016 pleads, in part:
14. [The Alleged Defamatory Words].

15. The defamatory words conveyed the following natural and ordinary
inferential meanings of and concerning the plaintiff as a matter of impression:
(a) The plaintiff is unworthy of belief because he was feloniously convicted of
tampering with and destroying deer traps in Kimberley and is an animal rights
activist;
(b) The plaintiff fabricated or staged the incidents;
(c) The complaint is a sham because the plaintiff fabricated or staged the
incidents;
(d) The incidents did not occur as described or at all, and the plaintiff knew or
should reasonably have known that;
(e) The complaint is a fabrication by the plaintiff because the incidents did not
occur as described or at all;
(f) One or more of the above.
[91] The defendants Response to Civil Claim was filed on April 28, 2016. There
is no need to repeat it here.
[92] On January 17, 2017, Mr. Justice Funt allowed the plaintiffs application to
strike substantial portions of the Response to Civil Claim but granted the defendant
leave to file an Amended Response to Civil Claim within 30 days: Kazakoff v. Taft,
2017 BCSC 66 (Kazakoff No. 1).
[93] The defendant filed his Amended Response to Civil Claim on February 16,
2017. The defendant pleaded in Part 1 Division 2, in material part:
1. With respect to the allegedly defamatory words reproduced at

paragraph 14 of the Plaintiffs Notice of Civil Claim (the Allegedly Defamatory
Words), the words Signed by the same Devon Kazakoff who was convicted
of tampering with and destroying deer traps in Kimberley consist of
statements of fact which are true in substance and in fact.
2. With respect to the allegedly Defamatory Words, the words I wouldnt
be so quick [sic] believe in reference to the Plaintiff consist of an
expression of opinion.
3. With respect to the allegedly Defamatory Words the words convicted
felons who have extreme positions on animal rights issues and who do not
respect the decisions of democratically elected local governments doing what

the majority of their constituents want in reference to the Plaintiff consist of a
statement of fact which is true in substance and in fact.
4. With respect to paragraph 15(a) of the Plaintiffs Notice of Civil Claim,
the Allegedly Defamatory Words conveyed the following natural and ordinary
inferential meaning as a matter of impression: the Plaintiff is not a trustworthy
source of information with respect to the content of the British Columbia Deer
Protection Society press release (the Press Release), the video attached to
that press release (the Video), and the deer cull issue generally due to his
prior criminal conduct with respect to traps used for urban deer culls, his
extreme positions on animal rights, and his disrespect for the decisions of
democratically elected local governments carrying out their popular mandate.
5. With respect to paragraphs 15(b), 15(c), 15(d), and 15(g) of the
Plaintiffs Notice of Civil Claim, the Allegedly Defamatory Words do not
convey the inferential meanings claimed by the Plaintiff and are incapable of
bearing those meanings.
6. In the alternative, with respect to the defamatory meaning alleged by
the Plaintiff at paragraph 15(a) of the Notice of Civil Claim, the Defendant
specifically pleads the defence of fair comment. Insofar as the words The
plaintiff is unworthy of belief consist of an expression of opinion, they
constitute fair comment and were made honestly, fairly, and without malice
on a matter of public interest. Insofar as the words because he was
feloniously convicted of tampering with and destroying deer traps in
Kimberley and is an animal rights activist consist of statements of fact, they
are true in substance and fact. The particulars in support of the Defendants
assertion that these words are true in substance and fact are outlined at
paragraphs 4. 5. 6. and 7 of Division 3 of Part 1 of this Response to Civil
Claim.
[94] The defendant pleaded in Part 1 Division 3, in material part:
1. In his capacity as mayor of Invermere, the Defendant was tasked with

solving problems created [sic] the long-standing influx of urban deer, a matter
of public interest.
2. The decisions of the District of Invermere, the City of Kimberley, and
the city of Cranbrook to use a cull to control the urban deer were
controversial and attracted public debate. Both the Plaintiff and the
Defendant participated in that debate. As a vocal participant in that debate,
the political views and the credibility of the Plaintiff were also a matter of
public interest.
3. The governments of the District of Invermere, the City of Kimberley,
and the City of Cranbrook were democratically elected. Their decisions to
use a cull to control the urban deer population were made in a manner
consistent with their democratic mandate and enjoyed popular support.
4. On February 17, 2014, the Plaintiff stated, in his capacity as a
spokesperson for the British Columba Deer Protection Society, we do not
engage in criminal activity.
5. On or around February 27, 2014, the Plaintiff disguised his face with
the intent to commit a criminal offence and vandalised deer traps located in or
around the City of Kimberley in concert with his accomplice.
6. the Plaintiff pleaded guilty to a charge of mischief under $5000.00.
He received a conditional discharge and was ordered to pay restitution.
7. The E-know article published on January 13, 2016 indicated that the
Plaintiff had signed the Press Release. The Plaintiff was listed as the first
among four persons as contacts at the bottom of the Press Release. A
Facebook posting by the Plaintiff made on or around January 12, 2016
indicated he was involved with obtaining the video footage which was the
subject of the press release.
[95] The defendant pleaded in Part 2, in material part:
2. With respect to the portion of the Allegedly Defamatory Words reading

Signed by the same Devon Kazakoff who was convicted of tampering with
and destroying deer traps in Kimberley, they consist of a statement of fact
which is true in substance and in fact. The Defendant specifically pleads
justification with respect to this portion of the Allegedly Defamatory words.
Particulars in support of the defendants allegation that these words are true
are provided at paragraphs 5, 6, and 7 of division 3 of Part 1 of this Response
to Civil Claim.
3. With respect to the portion of the Allegedly Defamatory Words
reproduced at paragraph 14 of the Plaintiffs Notice of Civil Claim, the words
convicted felons who have extreme positions on animal rights issues and
who do not respect the decisions of democratically elected local governments
doing what the majority of their constituents want in reference to the Plaintiff
is a statement of fact which is true in substance and in fact. The Defendant
specifically pleads justification with respect to this portion of the Allegedly
Defamatory Words. Particulars in support of the Defendants allegation that
these words re true are provided at paragraphs 3, 4, 5, and 6 of division 3 of
Part 1 of this Response to Civil Claim.
4. With respect to the Allegedly Defamatory Words, the words I wouldnt
be so quick [sic] believe in reference to the Plaintiff, insofar as it consists
of an expression of opinion, the defendant specifically pleads they constitute
fair comment and were made honestly, fairly, and without malice on a matter
of public interest on the basis of the facts alleged at paragraphs 1, 2, 3, 4, 5,
6, and 7 of Division 3 of Part 1 of this Response to Civil Claim.
5. With respect to the defamatory meaning alleged by the Plaintiff at
paragraph 15(a) of the Amended Notice of Civil Claim, the Defendant
specifically pleads the defence of justification. Insofar as that defamatory
meaning consists of a statement of fact, it is true in substance and in fact that
the Plaintiff is unworthy of belief because he was feloniously convicted of
tampering with and destroying deer traps in Kimberley and is an animal rights
activist. The particulars in support of the defence of justification are provided
at paragraphs 4, 5, 6, and 7 of division 3 of Part 1 of this Response to Civil
Claim.
6. In the alternative, with respect to the defamatory meaning alleged by

the Plaintiff at paragraph 15(a) of the Notice of Civil Claim, the defendant
specifically pleads the defence of fair comment. Insofar as the words The
plaintiff is unworthy of belief consist of an expression of opinion, they
constitute fair comment and were made honestly, fairly, and without malice
on a matter of public interest. Insofar as the words because he was
feloniously convicted of tampering with and destroying deer traps in
Kimberley and is an animal rights activist consist of statements of fact, they
are true in substance and fact. The particulars in support of the Defendants
assertion that these words are true in substance and fact are outlined at
paragraphs 4, 5, 6, and 7 of Division 3 of Part 1 of this Response to Civil
Claim.
7. With respect to the Defendants alternative defamatory meaning
provided at paragraph 4 of Division 2 of Part 1 of this Response to Civil
Claim, the Defendant specifically pleads the defence of fair comment. Insofar
as the words the Plaintiff is not a trustworthy source of information with
respect to the content of the British Columbia Deer Protection Society press
release (the Press Release) and the video attached to the press release
(the Video) consist [sic] an expression of opinion, they constitute fair
comment and were made honestly, fairly, and without malice on a matter of
public interest. Insofar as the words due to his prior criminal conduct with
respect to traps used for urban deer culls, his extreme positions on animal
rights, and his disrespect for the decisions of democratically elected local
governments carrying out their popular mandate consist of statements of
fact, they are true in substance and in fact, the particulars of which are
provided at paragraphs 3, 4, 5, and 6 of Division 3 of Part 1 of this Response
to Civil Claim.
[96] On March 1, 2017, the plaintiff applied to have the defendants Amended
Response to Civil Claim struck. That application was also heard by Mr. Justice Funt.
[97] On March 17, 2017, Mr. Justice Funt dismissed that application: Kazakoff
v.Taft, 2017 BCSC 433 (Kazakoff No. 2). He found that the Amended Response to
Civil Claim adequately complied with the requirements of the Supreme Court Civil
Rules and the common law regarding pleadings in a defamation action. No appeal
was taken from that decision.
[98] On March 24, 2017, the plaintiff filed his second Amended Reply which
pleaded, inter alia, that the Amended Response to Civil Claim continued to be in
violation of various of the Supreme Court Civil Rules and the common law. In it, the
plaintiff pleaded, in material part:
1. The plaintiff asserts that paragraphs 1 and 3 of Division 2 of Part 1 of

the defendants amended Response to Civil Claim assert justification only
with respect to segmented portions of the defendants defamatory words
encompassed by paragraphs 14 and 15 of the plaintiffs Amended Notice of
Civil Claim and the contents of the press release, article and video referred to
therein and are therefore in violation of Civil Rule 3-7(21) and Civil Rule 9-
5(1)(a) to (d) and, or alternatively, in violation of the common law rules related
to pleading including pleading in defamation actions.
2. The plaintiff admits that the defendants pleaded linkage of his
published comment to the content of the British Columbia deer Protection
Society press release (the Press Release), (and) the video attached to the
press release (the Video) in paragraph 4 of Division 2 of Part 1 of his
Amended Response to Civil Claim is correct, but the plaintiff asserts as
follows:
(a) the defendant has failed to particularize those parts of the
Press Release and video with which the plaintiff was involved and
about which he is unworthy of belief, and or alternatively;
(b) The whole of paragraph 4 is a re-write of the words the
defendant admits to publishing - a re-write that is both dissimilar to the
plaintiffs pleaded sting and too anaemic to be defamatory, and is
therefore not compliant with the common law requirements
concerning nested meanings.

7. Further or alternatively, the plaintiff asserts that paragraphs 1 to 7 of
Division 3 of Part 1 of the defendants Amended Response to Civil Claim are
in whole or in part irrelevant, argumentative, evidentiary, prejudicial to the
plaintiff beyond and acceptable probative value, constitute further evidence of
malice toward the plaintiff; and are otherwise in violation of Civil Rule 3-7(1)
and civil Rule 9-5(1)(a) to (d) together with the common law requirements of
pleading including defamation pleading.

18. The defendants assertion of justification in paragraphs 2, 3 and 5 of
Part 2 of his Amended Response to Civil Claim (a) improperly asserts
justification only with respect to segmented portions of the defamatory words
and meanings as set out by the plaintiff; (b) does not address at all the
plaintiffs unworthiness of belief with respect to the contents of the Press
Release, article and video; and (c) inappropriately asserts justification only
with respect to a portion of the defendants alleged nested meaning in
paragraph 4 of division 2 of Part 1 - a meaning that is in any event too
anaemic to be defamatory and is dissimilar to the sting alleged by the plaintiff.
19. Further or alternatively, the defendant has failed to properly
particularize this defence.
[99] During the course of the trial, the defendant applied to strike certain portions
of the plaintiffs Second Amended Reply on the basis of the doctrine of issue
estoppel.
[100] The doctrine of issue estoppel prevents the same question that has been
finally decided between the same parties from being re-litigated: Danyluk v.
Ainsworth Technologies Inc., 2001 SCC 44 at paras. 1819.
[101] Plaintiffs counsel conceded, during his submissions on the application, that
the plaintiff is estopped from putting in issue in his Second Amended Reply the
adequacy of defendants Amended Response to Civil Claim insofar as it is alleged
that the response violates the pleading requirements of the Supreme Court Civil
Rules and/or the common law. Indeed, each of the impugned paragraphs in the
Second Amended Reply pleads a pleading deficiency that was found by Justice Funt
to be adequately pleaded.
[102] Accordingly, paragraphs 1, 2, 7, 18 and 19 of the Second Amended Reply are

struck to the extent, and only to the extent, conceded by plaintiffs counsel.
[103] However, I disagree with counsel for the defendant that the plaintiff is
estopped from putting in issue the remainder of the impugned portions of the
Second Amended Reply. In my view, those provisions properly plead and put in
issue the merits of the defendants pleas of justification and fair comment rather than
the adequacy of the pleading of those defences. Mr. Justice Funts decision in
Kazakoff No. 2 dealt only with the latter and expressly left the determination of the
merits to the trial judge: see paras. 38, 42, 49, 53 and 57.
V. ANALYSIS
A. Credibility and Findings Based Upon Credibility
[104] The plaintiff was a sincere witness who gave his evidence in a genuine,
honest and forthcoming manner. I have no hesitation accepting his testimony in its
entirety.
[105] I find that each of Ms. Brown and Mr. Midyette also testified in a forthright,
honest and helpful manner. I also have no hesitation accepting their evidence in its
entirety.
[106] I find that I am unable to give the defendants evidence the same approbation.
On non-controversial matters, he testified in a straightforward and forthright manner.
However, when his conduct regarding the central issues in this action came to be
examined, he became confrontational, argumentative, and often launched into
campaign-style monologues in an effort to validate his actions. It was apparent that
he viewed many of the questions put to him on cross-examination as an affront to
his integrity.
[107] I found the defendants evidence regarding his state of mind towards the
plaintiff as well as his understanding of and motivation for the contents of his
January 13, 2016 post to be overly rehearsed and disingenuous.
[108] I do not accept as credible the defendants evidence regarding what he knew
of the plaintiffs April 2015 court proceeding at the time of his January 13, 2016 post.
The defendant testified that he was certain he knew that the plaintiff had pleaded
guilty but was uncertain as to whether he had heard what the sentence was. Yet,
the defendant was intimately involved in the deer cull issue from the beginning. It
was and had been the subject of significant debate for over three years at the time of
the plaintiffs court proceedings. The defendants evidence that he was too
overwhelmed by work and sleep deprivation to have been interested in the outcome
of those proceedings defies credulity. The wide-spread media coverage regarding
the plaintiff having received a conditional discharge would not have escaped the
defendant who was the spokesperson for the cull side of the debate and who had
been so intimately involved in the issue. I find that the defendant was well aware of
the outcome of the plaintiffs court proceedings in April 2015, and was upset at the
result which he perceived was far too lenient. He twice stated during his cross-
examination that many crimes in Canada dont have a severe enough penalty.
[109] Moreover, I do not accept the defendants evidence as to his motivation for
the January 13, 2016 post. The defendants purported sense of obligation as
someone involved in the deer cull debate to enlighten the readers of the e-know
article about the dangers of accepting as true what had been written in the Press
Release and what was depicted in the Video simply does not pass scrutiny. The
defendant admitted he had not seen the Video and that there was nothing inaccurate
about the Press Release. Why would the defendant feel the need to caution the
viewer about an article that was demonstrably true and a video that he had not
seen? If the defendants motivation was truly to alert e-knows readers to the other
side of the deer cull debate as he claims, he would not have written the words he
did.
[110] I find that the e-know article was viewed by the defendant as an opportunity to
vent his pent-up frustration at the plaintiff, who he perceived as a criminal and
whose opposition to the decisions of democratically elected local governments
doing what the majority of their constituents want had gone unpunished.
[111] The defendants demeanour changed noticeably during his evidence

regarding his having been unaware of the plaintiffs January 14, 2016 Facebook
message to him demanding an apology. He went to some length in an attempt to
explain how difficult it was for him to find messages on his Facebook account from
people who were not one of his Facebook friends because those messages are
located in his Facebook message box designated Other. Given his long-time
active use of Facebook, I do not accept as credible his incomprehensible and
confused obfuscation in this regard. The oft quoted phrase from Hamlet came to
mind while I listened to him: the Lady doth protest too much, methinks.
[112] Moreover, it defies common sense that a social media-savvy politician like the
defendant would have had no interest in reading messages received from Other.
[113] The defendant testified that if theres something I wish to say, I say it. I find
that he did precisely thathe intended to attack the plaintiffs character and integrity
and chose his words deliberately.
[114] The question is: were those words defamatory of the plaintiff?
B. Applicable Law
[115] The British Columbia Court of Appeal in Weaver articulated the function of the
law of defamation at para. 62:
[62] The function of defamation law is to protect and vindicate reputation

from harm that is unjustified. A good reputation fosters ones sense of self-
worth and, as an aspect of personality, is related to the innate worthiness and
dignity of the individual, an underlying value of the Canadian Charter of
Rights and Freedoms. Once tarnished, good repute is hard to regain, with
sometimes devastating consequences, particularly in a professional
context. However, its protection must be balanced and reconciled with the
Charter guarantee of freedom of expression, a recognised pillar of modern
democracy: [Hill v.]Church of Scientology [of Toronto, [1995] 2 S.C.R. 1130]
at paras. 100121; WIC Radio [Ltd. v. Simpson, 2008 SCC 40] at paras. 2,
15; Bou Malhab [v. Diffusion Mtromdia CMR inc., 2011 SCC 9] at
paras. 1618; Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R.
3 at paras. 9192.
[116] In Weaver, at para. 70, the Court confirmed the well-established law that the
plaintiff has the onus of proving, on the balance of probabilities that:
a) the impugned words were defamatory;
b) they referred to the plaintiff; and
c) they were published (i.e. communicated) to at least one other person
[117] The defendant concedes the second and third elements, but denies that the
words he used were defamatory of the plaintiff.
[118] The plaintiff must, therefore, show that the alleged defamatory words lowered
his reputation in the estimation of right-thinking members of society generally, or
exposed him to hatred, contempt or ridicule: Cherneskey v. Armadale Publishers
Ltd., [1979] 1 S.C.R. 1067 at 1079; Grant v. Torstar Crop., 2009 SCC 61 at para. 28;
Weaver at para. 68.
[119] There are two essential issues that must be determined. The first is an issue
of law and requires the trial judge to determine whether or not the words complained
of are capable of being defamatory. If they are not, the action fails. If they are, the
second issue is whether the words are in fact defamatory: Lawson v. Baines, 2012
BCCA 117 at paras. 1112.
[120] The threshold question requires an assessment of the range of possible

meanings that words could reasonably bear and sets the outer limits of potential
liability. In an action tried by a judge alone, the two questions need not be asked
and answered separately. As the trier of fact, the judges function is to determine
definitively whether the impugned words did, in fact, have a defamatory meaning.
The threshold question is subsumed by this inquiry: Weaver at paras. 6667.
[121] There are three alternate means by which defamation can be proven (Lawson
at para. 13):
a) if the literal meaning of the words complained of are defamatory;
b) if the words complained of are not defamatory in their natural and ordinary
meaning, but their meaning based upon extrinsic circumstances unique to
certain readers (the legal or true innuendo meaning) is defamatory; or
c) if the inferential meaning or impression left by the words complained of is

defamatory (the false or popular innuendo meaning).
[122] In Weaver, Madam Justice Dickson concisely summarized the task of the trial
judge in regarding each of the foregoing circumstances at para. 72:
[72] Where the literal meaning of words is in issue, it is unnecessary to go

beyond the words themselves to prove that they are defamatory. Where a
claim is based on the inferential meaning of words, the question is one of
impression: what would the ordinary person infer from the words in the
context in which they were used? Both literal and inferential defamatory
meaning reside within the words, as part of their natural and ordinary
meaning. In contrast, where legal innuendo is pleaded the impugned words
take on defamatory meaning from outside circumstances beyond general
knowledge, but known to the recipient.
[123] The words used must be assessed, in context, from the perspective of a
reasonable, right-thinking person, that is, a person who is reasonably thoughtful and
informed rather than someone with an overly fragile sensibility: Weaver at para. 69.
C. Was the Plaintiff Defamed?
[124] The sting asserted by the plaintiff is derived from the whole of the words used
by the defendant, including his adoption of the words signed by, which contextually
link the Press Release and the Video to the plaintiff.
[125] The plaintiff claims that the alleged defamatory words conveyed the following
natural and ordinary inferential meanings:
a) the plaintiff is unworthy of belief because he was feloniously convicted of

tampering with and destroying deer traps in Kimberley and is an animal
rights activist;
b) the plaintiff fabricated or staged the incidents;
c) the complaint is a sham because the plaintiff fabricated or staged the

incidents;
d) the incidents did not occur as described or at all, as the plaintiff knew or
should reasonably have known; and
e) the complaint is a fabrication by the plaintiff because the incidents did not
occur as described or at all.
[126] Reduced to its essentials, the plaintiff alleges that the defendants post was
defamatory of him because it asserted he is a convicted felon and as such, is
unworthy of belief, both generally and with respect to the deer cull issue.
[127] The defendant submits that the inferential meanings ascribed by the plaintiff
are the product of exaggeration, hyperbole, and wild speculation.
[128] Evidence concerning what the reasonable and ordinary person would have
understood from the words, the sense in which they might have been understood, or
of facts giving rise to the inferences to be drawn from the words is inadmissible:
Lawson at para. 23; Austin v. Lynch, 2016 BCSC 1344 at para. 54.
(a) who was convicted and convicted felon
[129] The defendant submits that reasonable people of ordinary intelligence without
special knowledge do not understand the difference between a conviction and a
conditional discharge which is why people hire lawyers to represent them in criminal
proceedings.
[130] The defendant relies on the definition of conviction in the Criminal Records
Review Act, R.S.B.C. 1996, c. 86, which includes a conditional discharge for his
argument that there is little distinction between the two terms.
[131] The Criminal Records Review Act is a provincial statute that regulates
requests for criminal records checks of individuals. In that context, it is not
surprising that a conditional discharge would be included in the scope of the check.
In contrast, the Criminal Code is a federal statute that defines and imposes
sanctions for criminal activity in Canada. A person has been convicted when he or
she has formally been found guilty of a criminal offence in a court of law: Oxford
English Dictionary (12th ed.).
[132] The word felon is used in the United States to mean someone who has
committed a felony. A felony is a crime regarded as more serious than a
misdemeanour: Oxford English Dictionary (12th ed.).
[133] In my view, the words convicted and convicted felons were defamatory of
the plaintiff based on their literal meaning alone.
[134] Describing a person as having been convicted of a criminal offence or as a

convicted felon clearly meets the test of defamation. It lowers the persons
reputation in the estimation of any reasonably thoughtful, right-thinking and informed

member of society generally.
(b) I wouldnt be so quick to believe
[135] The plaintiff submits that, in the context of the January 13, 2016 post as a
whole, an ordinary person would infer from the natural meaning of the words used
that, because he is a criminal who takes extreme positions on animal rights issues,
the plaintiff is so unworthy of believe that he might have fabricated or staged the
Video.
[136] The defendant submits that the words infer nothing of the sort, but rather
simply caution the reader not to jump to any conclusions regarding the Press
Release and Video and to carefully reflect and consult other sources first. He
submits further that a reasonable person of ordinary intelligence without special
knowledge would have no difficulty reading the post in such a common-sense
manner.
[137] The question is whether an ordinary person would infer from the words I
wouldnt be so quick to believe in the context in of the defendants post as a whole
that the plaintiff had staged the Video and then fabricated the Press Release based
upon it. I am satisfied on the balance of probabilities that an ordinary, reasonably
thoughtful, right-thinking person reading the defendants words would infer nothing
less.
(c) local governments doing what the majority of their constituents

want
[138] The phrase local governments doing what the majority of their constituents
want is also alleged by the plaintiff to be defamatory of the plaintiff in the context of
the post as a whole. Both parties dedicated time and effort during the trial in an
attempt to demonstrate the views of the majority of constituents regarding the deer
cull. They ought to have known that the exercise was likely to be futile. The
evidence shows that Invermeres decision to proceed with the cull was not based on
any formal or statistically valid poll. After the decision was made but before the cull
began, a formal opinion poll was conducted but only 40% of eligible voters bothered
to participate. Of those who did, 74%, or 30% of eligible voters supported the deer
cull and 26% or 10% of eligible voters did not. There is no evidence regarding the
views of the remaining 60% of eligible voters.
D. Defences
[139] The plaintiff has proven that the words used were defamatory of him.
Accordingly, the burden shifts to the defendant to prove any defences including
justification (truth), fair comment, qualified or absolute privilege or responsible
communication. Justification is an absolute defence. The other defences, if proven,
can be defeated by malice: Philip Lewis, ed, Gatley on Libel and Slander, 8th ed
(London: Sweet and Maxwell, 1981) at 10.
[140] A defendant may, within limits, plead an alternative defamatory meaning to

the allegedly defamatory words and then rely on this alternative meaning to establish
a defence of justification or fair comment: Kazakoff No. 1, para. 22. The full context
of the publication is important: WIC Radio Ltd. v. Simpson, 2008 SCC 40 at para. 56;
Polly Peck (Holdings) plc et al v. Trelford et al, [1986] 2 All ER 84 at para. 1; Pizza
Pizza Limited v. Toronto Star Newpapers Ltd., 1998 CanLII 18866 (ONCA).
(c) Justification
[141] With respect to subparagraph (a) of paragraph 125 set out above, the
defendant denies (at para. 2 of Division 1 of his Amended Response to Civil Claim)
the truth of the plaintiffs allegation, but then pleads (at para. 5 of Part 2) justification,
namely that the statement was true in substance and in fact. The two positions are
inconsistent.
[142] With respect to subparagraphs (b) to (e) of paragraph 125 set out above, the
defendant says that the alleged defamatory words are incapable of bearing those
meanings and that the plaintiffs interpretation involves a leap of logic that flies in the
face of common sense. The defendant testified that he is a person who says what
he means to say and that, if he wanted to imply what the plaintiff says he implied, he
would have said it directly rather than indirectly through inference.
[143] During his submissions, counsel for the defendant conceded that the result of
the plaintiffs conditional discharge was that no conviction was entered. He also
conceded that the phrase convicted felon is not known to Canadian law and does
not accurately describe the plaintiff after his guilty plea.
[144] However, the defendant submits that the question to be decided is not
whether the words employed by the defendant were legally correct, but rather how
ordinary people without special knowledge would have understood them and the
extent to which the phrase was justified in light of that understanding. The
defendant submits that ordinary people without special knowledge do not distinguish
between a conviction and a discharge and do not understand that a discharge
means no conviction was entered. He submits that all that matters to an ordinary
person is what crime was committed and whether there was a finding of guilt and
that there could not have been any confusion that the alleged defamatory words
referred to the plaintiffs mischief charge and subsequent guilty plea.
[145] The defendant argues that the words he used were nothing more than a
slight inaccuracy and that the gist of the language is true and it did not add to the
sting that would have been conveyed had he stated that the plaintiff pleaded guilty
and received a conditional discharge.
[146] The defendant relies on the following statement of the law in Patrick Milmo &
W.V.H. Rogers, eds, Gatley on Libel and Slander, 9th ed (London: Sweet and
Maxwell, 1981) at 23839.
If the defendant proves that the main charge, or gist, of the libel is true, he
need not justify statements or comments which do not add to the sting or the
charge or introduce any matter by itself actionable. It is sufficient if the
substance of the libellous statement be justified; it is unnecessary to repeat
every word which might have been the subject of the original comment. As
much must be justified as meets the sting of the charge, and if anything be
contained in a charge which does not add to the sting of it, that need not be
justified.
[147] The defendant also relies on the decision of this court in Jay. McEwan J.
rejected that plaintiffs submission that the defendant was required to justify the
assertion that he had pleaded guilty to a specific charge. He stated, at para. 43:
[43] The first thing that must be said is that I do not think the submission
that the words identify a specific charge rather than a manner of committing
the offence is entirely accurate. There is no mention of a charge in the words
published. The phrase is pleaded guilty to assaulting a Nelson resident
with a noxious substance. While it may be possible to read this as implying a
specific charge, I think it more obviously describes a manner of committing an
assault. I think this renders material any difference in degree between what
was alleged and what occurred in assessing the sting of the words or in
assessing whether the substance of the words was true. [Emphasis added]
[148] A person who has received a conditional discharge for a summary offence for
which a guilty plea was entered is not by any measure the equivalent of a convicted
felon, and is a far cry from a slight inaccuracy or an innocuous legal mis-description
as to the manner in which the offence was committed. The sting created by the
words convicted and convicted felons was substantially greater in quality and in
kind than would have been the case had he used the words pleaded guilty and
conditional discharge for which no conviction was entered.
[149] In further support of his defence of justification, the defendant pleads an

alternative (nested) defamatory meaning of the words used, namely that the plaintiff
is not a trustworthy source of information with respect to the content of the Press
Release and Video generally due to his prior criminal conduct and his disrespect for
the decisions of democratically elected local governments.
[150] A defendant cannot set aside the actual words published and assert the truth
of words that were not used. The defendant did not use the words due to his past
criminal conduct or that he wasnt trustworthy. Rather, he used the words
convicted, convicted felons, and I wouldnt be so quick to believe. It is those
words that the defendant must justify with an alternate defamatory meaning.
[151] Moreover, a defendant cannot plead that part of the defamatory statement is
true, unless it is divisible. If the defamatory statement consists of a single, entire,
and indivisible charge, the defendant must justify it in its entirety. A plea of partial
justification is no defence at all: Raymond E. Brown, Brown on Defamation: Canada,

United Kingdom, Australia, New Zealand, United States, 2d ed. (Toronto: Carswell,
1999) (loose-leaf updated 2013, release 1) vol. 7 at p. 19-167.
[152] The defendants purported nested defamatory meaning is an attempt to

selectively re-write what was published and ignores the actual words used. I agree
with counsel for the plaintiff that the defendants attempt to attribute truth to selected
and segmented portions of his post without consideration for the context of the post
as a whole is fallacious.
[153] The defendant has failed to prove the defence of justification.
E. Defence of Fair Comment
[154] The test for a defence of fair comment was set out in WIC Radio at para. 28:
(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?
[155] The defence is not available if the comment is based on facts which are
untrue or misstated (Weaver v. Cororan, 2015 BCSC 165 at para. 196, revd for
other reasons 2017 BCCA 160) or where the comments factual foundation is
unstated or unknown (WIC Radio at para. 31). The facts must be sufficiently stated
or otherwise known to the reader that the reader is able to make up his or her own
mind on the merits of the comment. The comment must be presented as an
expression of subjective opinion, not an assertion of objective fact: Raymond Brown,
The Law of Defamation in Canada, 2d ed (Toronto: 1994).
[156] Although it is clear that the defendants comment was on a matter of public
interest, I do not accept that the facts upon which it was based were generally true.
The factual foundation for the defendants comment that he wouldnt be so quick to
believe was that the plaintiff had been convicted and was a convicted felon. As
set out above, those purported facts were false.
[157] The defendant has failed to establish the defence of fair comment.
F. Defence of Qualified Privilege
[158] Succinctly stated, the defence of qualified privilege may arise where a person
having an interest or a duty (legal, social or moral) to make a comment, makes it to a
person who has a corresponding interest or duty in receiving it. To attract the
privilege, the statement must be fairly made in discharge of some public or private
duty, or in the conduct of the defendants own affairs. The privilege rests not on the
interests of the person entitled to invoke it, but upon the general interests of society:
Parlett v. Robinson, (1986) 30 D.L.R. (4th) 247 at paras. 22 and 37 (B.C.C.A.).
[159] The defendant contends that he, as mayor, had a duty to participate in public
debates on matters of public interest affecting the District of Invermere and the East
Kootenays, that the deer cull was an important issue of public interest, and that the
public has a corresponding interest that elected officials participate in debates
concerning such matters and receive from them information relevant to the debate.
The defendant submits that the BCDPS had, by virtue of the Press Release,
volunteered information germane to the debate and that his January 13, 2016 post
was therefore made on an occasion of qualified privilege.
[160] I find on the whole of the evidence that the defendants post was neither a
form of official comment related to the deer cull nor made pursuant to any duty as an
elected official to participate in the ongoing public debate over or communicate
important information about the deer cull. No public interest was served by the
defendants publication of what can only be described as his jaundiced view of the
plaintiff and his activism. The lack of any corresponding interest on the part of the
public in receiving his biased perspective without regard for accuracy is readily
apparent by the replies received by e-know to his post.
[161] The defendant has failed to prove its defence of qualified privilege.
G. Defence of Responsible Communication
[162] This defence originated with the decision of the Supreme Court of Canada in
Grant v. Torstar Corp., 2009 SCC 61. Its requirements were set out in the decision
of this court in James v. Black Press Group Ltd., 2012 BCSC 1969 at para. 34:
a) the communication must be on a matter of public interest; and
b) the publisher of the communication must have acted responsibly.
[163] I am satisfied that the contents of the defendants January 13, 2016 post as a
whole was generally on a matter of public interest, namely the controversial deer
cull.
[164] The question is whether the defendants communication was published

responsibly. In Grant, McLachlin C.J.C. set out a number of relevant but non-
exhaustive factors to be considered (at para. 126):
(a) the seriousness of the allegation;

(b) the public importance of the matter;
(c) the urgency of the matter;
(d) the status and reliability of the source;
(e) whether the plaintiffs side of the story was sought and accurately
reported;
(f) whether inclusion of the defamatory statement was justifiable; and
(g) whether the defamatory statements public interest lay in the fact that
it was made rather than in its truth...
[165] Each of these factors weighs against the defence of responsible

communication in this case. Describing the plaintiff as a convicted felon was a
serious allegation. There was no public importance in doing so. There was certainly
no urgency regarding the communication. Rather it was a knee-jerk reaction after
the defendant skimmed the e-know post. The source of the information relied upon
by the defendant was his vague recollection of what had occurred during the
plaintiffs court preceding which turned out to be wrong. The plaintiffs side of the
story was not sought. I have found that there was no justification for the defamatory
statement. There was no public interest in the statement let alone in the fact that it
was made.
[166] I find that the defendant did not act responsibly when he published the
January 13, 2016 post. The defence of responsible communication has not been
established.
H. Malice
[167] If the defences of justification, fair comment, qualified privilege and

responsible communication had not failed on their merits, I, nevertheless, would
have found that they were defeated by the defendants malice.
[168] Malice is defined as spite, ill-will, or any indirect motive or ulterior purpose
that conflicts with the sense of duty or the mutual interest which the occasion
created. Malice may be established by showing that the defendant spoke
dishonestly, or in knowing or reckless disregard for the truth: Hill v. Church of
Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 145.
[169] The law makes a distinction between carelessness with regard to the truth,
which does not amount to malice, and recklessness, which does. As was
referenced in Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 at
para. 96:
[96] a defendant is not malicious merely because he relies solely on

gossip and suspicion, or because he is irrational, impulsive, stupid, hasty,
rash, improvident or credulous, foolish, unfair, pig-headed or obstinate, or
because he was labouring under some misapprehension or imperfect
recollection, although the presence of these factors may be some evidence of
malice.
[170] Indifference to the truth of what is published is not to be equated with

carelessness, impulsiveness, or irrationality in arriving at a positive belief that it is
true: Austin v. Lynch, 2016 BCSC 1344, at para. 97, quoting from Leverman v.
Campbell Sharp Ltd. et al, (1987), 36 D.L.R. (4th) 401 at 407 (B.C.C.A.).
[171] However, if from anger or some other wrong motive, a person allows his mind
to get into such a state that he is reckless or indifferent as to whether the aspersions
he casts are true or false, a trier of fact is justified in finding malice: Austin at
para. 101.
[172] Evidence as to malice may be extrinsic or intrinsic: Austin at para. 95.
[173] The defendant maintains that his mistake in using the wrong legal terminology
(convicted felon) was simply a careless mistake and that he apologized for it once
it was brought to his attention. He further submits that it was not malicious to seek
to adduce evidence that by wearing a balaclava the plaintiff was guilty of an
indictable offence, because it was relevant to his pleaded defence of justification.
[174] The law is clear that the mere fact the defendant published his words
precipitously and recklessly after merely skimming the e-know article and
immediately reacting to it based upon his vague recollection of past events and
without regard for accuracy is not enough to establish malice. However, in this case,
the defendants animosity towards anti-deer cull activists generally and the plaintiff,
in particular, permeated his conduct on the issue almost from the outset of the
plaintiffs involvement. It was particularly palpable during his cross-examination.
The following are examples:
a) Shortly after costs were awarded against Mr. Suman and the IDPS in the
Petition proceeding, the defendant posted on social media that my
personal opinion and dream is that we get to use the money to fund the
next deer cull. The defendant explained this post as his attempt at
humour.
b) Although the defendant denied having focused on the plaintiff during the
period 2012 to 2015, stating that he was simply engaged in public
discourse as Mayor, it is apparent from the evidence and I find that, from
and after the Petition having been filed by Mr. Suman and the IDPS in
February 2012, the defendant singled the plaintiff out as being illegitimate
in terms of his activism against the Invermere deer cull, in part because
although he owned property within the Invermere boundaries and was
entitled to vote he lived outside of those boundaries. and in part because
the plaintiff was the main spokesperson for the IDPS and BCDPS which
had published social medial posts critical of the defendant and his support
of the deer cull issue. The defendant admitted during cross-examination
that he had mistakenly assumed that the plaintiff was the author of those
posts.
c) The defendant derived personal satisfaction over putting a billboard

advertisement for his gelato restaurant on a billboard that had been
erected and previously been used by the IDPS during its campaign
against the deer cull.
d) The defendant was quick to ensure his social media contacts were aware
that the person who had recently opened up a new flooring business in
Invermere was the same person who had been charged with mischief in
respect of the Kimberley incident. I find that the defendants explanation
that this post was part of role and duty as an open and transparent
government official to answer questions asked by constituents to be a
disingenuous attempt after the fact to disassociate himself from any
suggestion that his true motivation was to target and taunt the plaintiff for
his anti-deer cull activism.
e) The defendant admitted on cross-examination that he was not surprised

and there was a general feeling of satisfaction among the deer cull
advocates, including himself, that charges were laid against the plaintiff in
respect of the Kimberley incident.
f) The defendants reaction to being served with the January 25, 2016 letter
from the plaintiffs counsel was telling. The service took place at his
business, Gerrys Gelati. He gave the following evidence:
I was working alone at my store that evening. Two people I knew to

be associated with the anti-deer cull group interrupted by business
activities and without really saying anything shoved a letter into my
hands and stormed out.
[175] The evidence demonstrates that, from and after the commencement of the
plaintiffs vocal opposition to the deer cull decision, the defendant set upon a
campaign to discredit the plaintiff at any opportunity, as evidenced by his social
media exchanges, his usurping the billboard space, and his incorrect attribution of
any media posts by animal rights organizations to the plaintiff alone. Why else
would the Mayor of Invermere, for example, stoop to linking the towns new flooring
business to the plaintiff and the destruction of deer traps if he was not motivated by
bitterness towards the plaintiff?
[176] Moreover, the defendant was determined during the course of this litigation,
including during the trial, to paint the plaintiff as someone akin to a convicted felon
because, in his view, and he submitted, in the eyes of any reasonable and ordinary
person without special knowledge, wearing a balaclava was equivalent to being
guilty of felonious conduct.
[177] On the whole of the evidence before me, the inescapable conclusion is that
the defendants January 13, 2016 post was published with the intent to selectively
attack the plaintiffs credibility and reputation because of his previous opposition to
and activism in respect of the deer cull decision.
[178] I find that the defendant was motivated solely by distain towards the plaintiff
because of his activism activities, the unrecovered costs incurred by Invermere in
connection with its successful defence of the Petition proceeding, and because the
plaintiff received a conditional discharge in respect of the Kimberley Incident.
[179] The defendants response to the plaintiffs counsels demand for an apology is
particularly revealing of his animus toward the plaintiff:
I am choosing not to waste time and money on legal advice, as I believe this
current exercise is designed more in trying to tell me what to say and what
not to say then [sic] it is about any legal action
I think my opinion is factually true, and not something I am willing to
apologize for.
Since it appears that an apology is important to Mr. Kazakoff, I have
submitted an apology to the page on e-know where the original post as
posted I have no control whether or not the publishers of e-know publish
my post.
I sincerely hope that his resolves the issue and that no further time is wasted
and that I do not suffer further interruptions at my place of business with
people serving me legal letters.
[180] I find that the defendant was motivated by malice towards the plaintiff which
led to his reckless use and publication of the words convicted and I wouldnt be so
quick to believe convicted felons.
I. Damages
[181] General damages for defamation are intended to compensate the plaintiff for
the loss of or harm done to his reputation and integrity in the community and for the
suffering occasioned by the defamation: Lee v. Lee, 2000 BCSC 1770 at paras. 20
22. It is precisely because the real damage cannot be ascertained that damages are
at large: Vogel v. Canadian Broadcasting Corporation, [1982] 3 W.W.R. 97 at
para. 251, quoting from Ley v. Hamilton (1935), 135 L.T. 384 (H.L.).
[182] The plaintiff testified that that he was grateful to have been given a conditional
sentence and a second chance. His activism substantially decreased and he
focused, instead, on developing his new business in his small town. There is no
suggestion in the evidence that the plaintiff did anything other than contribute to the
momentum of an upswing in his reputation after the court proceedings in April 2015.
That upswing was tarnished by the defendants defamation of him.
[183] Defamation in a small closely-knit community such as Invermere can have a

much more pervasive and far-reaching impact than in a large urban center,
particularly where the words used relate to a community issue that is in the forefront
of the minds and memories of the residents.
[184] When the defamatory words are published by the mayor of a small
community, they undoubtedly carry the weight and resonance of his office. The
defendant agreed, during his examination for discovery, that as mayor, he was in a
position of trust and had a duty to act in good faith towards Invermeres citizens.
[185] What a mayor of any community says about a persons reputation matters
to the community, to constituents, and to the persons friends, family, and, in this
case, customers, both actual and prospective.
[186] Compounding what was communicated by the mayor in this case is the fact
that it was published on e-know. The internet is an extremely powerful medium. It
provides widespread, instantaneous, and permanent dissemination of information,
whether true or not. The defendant agreed that animal cruelty postings on the
internet can bring international interest, including over social media.
[187] Even posts that are removed can be retrieved by anyone with even a
modicum of computer skill.
[188] The defendant chose not to take any meaningful steps to apologize,
maintaining his position that while he may have been mistaken regarding a
conditional discharge being a conviction, his statement that the plaintiff was a
convicted felon was, if not true in substance and in fact, then substantially true, and
that any reasonable and ordinary person without special knowledge of the law would
nevertheless have understood him to be a convicted felon. He then chose to
defend the plaintiffs claim in what can only be described as a misconceived and
defiant manner by attempting to litigate a criminal charge against the plaintiff that
had been abandoned by the Crown.
[189] The plaintiff claims that the alleged defamatory words have damaged his
reputation in the community and have lowered him in the estimation of his fellow
citizens. He testified that, as an example, customers have come into his flooring
store and seemed interested in his products and services until he presented his
business card to them, whereupon they abruptly left the store without explanation.
He also testified that his business was inexplicably passed over by the Insurance
Claims Collaborative as its local dealer, which would have enhanced his business
opportunities. However, he agreed on cross-examination that these incidents could
have had to do with him being an anti-deer cull activist.
[190] The plaintiff relies on the following cases in support of his claim for general
damages in the amount of $125,000:
a) Vogel v. Canadian Broadcasting Corporation, [1982] 3 W.W.R. 97

(BCSC): $100,000;
b) Ward v. Clark, 2000 BCSC 979: $150,000;
c) Clark v. East Sooke Rural Association et al., 2004 BCSC 1120: $100,000;
d) Rubin v. Ross, 2013 SKCA 21: $100,000;
e) Austin v. Lynch, 2016 BCSC 1344: $75,000;
f) Leenen v. Canadian Broadcasting Corp., [2000] O.J. No. 1359 (ONCA):

400,000.
[191] The defendant submits that the damage to the plaintiffs reputation in the
community was negligible, given his well-publicized criminal conduct and given that
the number of people who viewed the defendants January 13, 2016 post was
relatively low. I note that there is no meaningful evidence from which any
determination can be ascertained as to the extent of dissemination of the
defendants post.
[192] The defendant also submits that the principle of partial justification should
be considered in the assessment of the damage to the plaintiffs reputation because
it would be wrong to assess damages on the basis that the plaintiff had never been
convicted of a crime at all. The defendant relies on the decisions in Makow v.
Winnipeg Sun, 2003 MBQB 56 at paras. 137138 and Roshard v. St. Dennis, 2013
BCSC 1388 at para. 76.
[193] Although I find that the defendants defamatory post diminished the plaintiffs
reputation in the eyes of the community, it did not do so to the extent complained of
by him. His identity in the community prior to the post was a notorious one,
characterised by his very public activism activities which included a guilty plea for
mischief in respect of the destruction of two traps being used in Kimberley for its
deer cull.
[194] I find that, although the plaintiff had made significant strides in reducing his
public persona since his guilty plea, his activist reputation within the community
remained extant at the time of the post.
[195] The trier of fact is entitled to take into consideration the conduct of the
defendant throughout the period of time between the publication of the defamatory
words and the verdict at trial. The damages should allow for the sad truth that no
apology, retraction or withdrawal can ever be guaranteed to completely undo the
harm the defamation has done: Lee at para. 21. However, regardless of the amount
awarded, the mere grant of judgment in a defamation action will likely go some
distance in restoring the reputation of the defamed individual: Austin at para. 157.
[196] Having considered all of the evidence and the submissions of counsel, I find
that an appropriate amount to award the plaintiff as general damages for the
damage to his reputation is $50,000.
J. Aggravated Damages
[197] Aggravated damages may be awarded in circumstances where the

defendants conduct has been particularly high-handed or oppressive, thereby
increasing the plaintiffs humiliation and anxiety arising from the defamatory
statement. They are compensatory in nature and take into account the additional
harm caused by the defendants outrageous and malicious conduct: Hill at paras.
18890.
[198] The factors the court may take into account in assessing aggravated
damages include:
a) whether there was a withdrawal of the defamatory statement;
b) whether an apology was tendered;

c) whether there was conduct calculated to deter the plaintiff from

proceeding with the action; and
d) whether there was a plea of justification which the defendant knew was
bound to fail;
See Hill at para. 191.
[199] Although the defendant published an apology, he was reluctant to do so

despite the almost immediate responses to his post from readers. It took two
demand letters from plaintiffs counsel before the defendant begrudgingly published
an apology that was limited to his use of incorrect legal terminology.
[200] Throughout the litigation, although perhaps misguided, the defendant

steadfastly maintained his plea of justification and sought to prove that the plaintiff
was indeed a convicted felon, a defence he knew or ought to have known was
bound to fail.
[201] Almost every aspect of this case demonstrates the persistent malice of the
defendant towards the plaintiff.
[202] In my view, there is ample evidence justifying an award of aggravated

damages. I award $25,000.
K. Punitive Damages
[203] Unlike general and aggravated damages which are intended to compensate
the plaintiff, punitive damages are intended to punish the defendant for conduct that
is so malicious, oppressive and high-handed that it offends the courts sense of
decency, and where the combined award of general and aggravated damages would
be insufficient to achieve the goal of deterrence; they are in the nature of a fine
meant to deter the defendant and others from acting in such a manner: Hill at
para. 199.
[204] Despite the defendants persistent malice towards the plaintiff throughout, it is
my view that the awards I have made for general and aggravated damages will
achieve the goal of deterrence. At the close of his re-examination, the defendant
apologized to the plaintiff. He stated:
Q Is there anything youd like to say to Mr. Kazakoff here in court today?
A Yes. So, Mr. Kazakoff, I would like to apologize for my choices of
words and for the pain and suffering that those have caused you. And Id like
to further apologize if these have or may have caused damage to your
reputation.
[205] Although that apology came too late to affect my decision regarding his
conduct up until then, it does demonstrate that the defendant seemed to finally grasp
that what he had done was wrong.
[206] I decline to award punitive damages in this case.
VI. SPECIAL COSTS
[207] The plaintiff seeks an order that costs of this action be assessed as special
costs against the defendant in the form of indemnity for his legal fees.
[208] The plaintiff would have been satisfied with a full apology from the defendant.
The defendant refused. The plaintiff was forced to seek vindication through the
courts.
[209] An award of special costs is an extraordinary measure intended to punish a

litigant for reprehensible conduct during the litigation: Grewal v. Sandhu, 2012 BCCA
26 at para. 106.
[210] The defendants attempts to prove the plaintiff was guilty of criminal conduct
as justification for the use of the words convicted and convicted felons was, in my
view, inexcusable and is deserving of censure and rebuke.
[211] I find that the award of special costs is warranted.

VII. CONCLUSION
[212] The plaintiff is entitled to judgment against the defendant in the following
amounts:
a) General damages: $50,000

b) Aggravated damages: $25,000
c) Punitive damages: $ 0.00
Total: $75,000
[213] The plaintiff is entitled to his costs of this action, assessed as special costs.
G.C. Weatherill J.

Judge Weatherill G C Re Kazakoff V Taft 05-04

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Judge Weatherill G C Re Kazakoff V Taft 05-04

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IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Kazakoff v. Taft,

Before: The Honourable Mr. Justice G. C. Weatherill

Reasons for Judgment

Counsel for the Plaintiff: N.M. Robertson, Q.C.

Counsel for the Defendant: B.M. Desruisseaux

Place and Dates of Trial: Cranbrook, B.C.

[5] The defendant described himself as a hardworking, approachable, and

B. Urban Deer Issue

[9] In the summer of 2011, the District of Invermere established a committee of

C. The Anti-Cull Movement

[12] After a municipal election in November 2011, a number of anti-deer cull

a) in late 2011, the Invermere Deer Protection Organization (IDPO). The

c) the BC Deer Protection Society (BCDPS) was incorporated in 2013. It

d) Invermere Deer Protection, which is a Facebook site on which Ms. Brown

had no involvement in the Facebook publications or posts by the IDPS or the

D. The Kimberley Incident

[34] In the course of sentencing the plaintiff, Judge Webb said:

E. The Cranbrook Deer Cull

[44] The Press Release stated:

Undercover footage shows the

F. The Alleged Defamation

[47] The website www.e-know.ca (e-know), based in Cranbrook, publishes

[50] The defendant conceded on cross-examination that he only skimmed the e-

I can believe the video footage showing the offence!

[65] Having received no response from the defendant to his Facebook

On January 13, 2016 at 6:29 pm I posted a comment on this website

communicated with me by telephone and my cell phone number is posted

I am not in agreement with the claims of defamatory impressions. I made a

a) numerous hand delivered legal letters being presented at my place of

c) a full page ad in a local Kimberley newspaper with a photo showing a

III. RULING DURING TRIAL ON SCOPE OF EVIDENCE

[79] Section 351(2) of the Criminal Code provides as follows:

a) officers observed an individual wearing a balaclava running from them, get

[83] In dismissing the action, McEwan J. held, at para. 43:

[84] Justice McEwen went on to say, at para. 50:

[50] That whole exercise was something of a diversion. It is not now

IV. PLEADINGS ISSUE

14. [The Alleged Defamatory Words].

1. With respect to the allegedly defamatory words reproduced at

respect the decisions of democratically elected local governments doing what

[94] The defendant pleaded in Part 1 Division 3, in material part:

1. In his capacity as mayor of Invermere, the Defendant was tasked with

[95] The defendant pleaded in Part 2, in material part:

2. With respect to the portion of the Allegedly Defamatory Words reading

6. In the alternative, with respect to the defamatory meaning alleged by

1. The plaintiff asserts that paragraphs 1 and 3 of Division 2 of Part 1 of

[102] Accordingly, paragraphs 1, 2, 7, 18 and 19 of the Second Amended Reply are

A. Credibility and Findings Based Upon Credibility

[111] The defendants demeanour changed noticeably during his evidence

[62] The function of defamation law is to protect and vindicate reputation

a) the impugned words were defamatory;

b) they referred to the plaintiff; and

c) they were published (i.e. communicated) to at least one other person

[120] The threshold question requires an assessment of the range of possible

a) if the literal meaning of the words complained of are defamatory;

c) if the inferential meaning or impression left by the words complained of is

[72] Where the literal meaning of words is in issue, it is unnecessary to go

C. Was the Plaintiff Defamed?

a) the plaintiff is unworthy of belief because he was feloniously convicted of

b) the plaintiff fabricated or staged the incidents;

c) the complaint is a sham because the plaintiff fabricated or staged the

(a) who was convicted and convicted felon