IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Austin v. Lynch,
2016 BCSC 1344
Date: 20160720
Docket: 18088
Registry: Terrace

Between:
Robin Austin
Plaintiff
And
James M. Lynch and Michael Brousseau
Defendants
Before: The Honourable Mr. Justice Punnett

Reasons for Judgment

Counsel for the Plaintiff:
Counsel for the Defendant James M. Lynch:
Defendant Michael Brousseau:
Place and Date of Trial:

Place and Date of Judgment:

R.D. McConchie
G.L. Crampton
In Person
Terrace, B.C.
April 11-15, 2016
April 18-21, 2016
Terrace, B.C.
July 20, 2016

Austin v. Lynch

Page 2

Introduction
[1]

This is a defamation action. The plaintiff Robin Austin is the Member of the

Legislative Assembly (MLA) of British Columbia for Skeena. He brings this action
over words spoken by the defendant James M. Lynch during the 2013 provincial
election campaign at an all-candidates meeting at the Pentecostal Assembly Church
in Terrace, British Columbia on April 30, 2013.
[2]

The defendant James M. Lynch is a retired insurance agent and a former

community coroner. He is 77 years of age.

[3]

The defendant Michael Brousseau is a roofer by trade and ran as the

conservative candidate in both the 2009 and 2013 elections. He participated in the
all-candidates meeting. He is alleged to have incited, assisted and/or encouraged
Mr. Lynch to publish the complained of words.
[4]

Before proceeding further I wish to make clear that the words spoken were

unfounded, unjustified and false. There was no basis for them whatsoever.
Mr. Lynchs conduct was inexcusable. Mr. Austin as a result suffered serious
damage to his reputation. He is entitled to substantial damages.
[5]

The words spoken by Mr. Lynch at the all candidates meeting, with the words

of the moderator and Mr. Austin shown for context, were:

DEBATE ALLEGATION
[Mr. Lynch]: My question is for Robin Austin and Robin it has to do with the
foster parent program and you are one of those foster parents. I had the ... I
was looking after a foster parent and as well a young girl she was looking
after and I use[d] to drive her for three months to church and so on and so
forth and I got to be good buddies with them and I asked her well why? and
I found out that she had left the foster home she was at before and I says
why did you leave? and she was reluctant to tell me but she finally told me
that it was because of abuse. I said was that verbal? and she said no. I
said was it sexual? and she said yah and I says well why didnt you go to
the authorities? and she said well who would believe me? I really felt for
the girl because we got to be buds.
[Moderator]: Your question to Robin?

Austin v. Lynch

Page 3

[Mr. Lynch]: My question to Robin is simpl[y] this, she was staying at your
place Robin. That is bad and sick and I feel that I am a grandfather, a great
grandfather and I have daughters and I cant put up with that kind of stuff.
[Moderator]: That is not a question, do you want to answer Robin?
Robin [Austin]: Certainly
[James Lynch]: Are you still a foster parent?
Robin [Austin]: I was a foster parent for 10 years. I adopted one of our foster
children and I can tell you this, [neither] I nor my wife have ever abused a
child in our home. I think many people in this house [hall] have been in my
home and know the children so for you to bring an accusation like this,
maybe we will see you in court.
[Mr. Lynch]: Please do.

[6]

The plaintiff alleges the statements made on April 30, 2013 conveyed the

following natural and ordinary inferential meanings as a matter of impression:

6.

(a)

The plaintiff is guilty of sexually abusing a female foster

child;

(b)

The plaintiff is guilty of sexual assault of a female child

contrary to section 271 of the Criminal Code, R.S.C.
1985, c. C-46;

(c)

The plaintiff is a sexual predator who should not be

trusted or left alone with children;

(d)

The plaintiff is undeserving of his high standing in the

community and is unworthy to be elected to public
office; and/or

(e)

One or more of the above.

[7]

The defendant Mr. Lynch asserts that the all-candidates meeting was an

occasion of qualified privilege.

[8]

The defendant Michael Brousseau denies any involvement whatsoever with

Mr. Lynch or Mr. Lynchs statement.

Background
[9]

The plaintiff is 58 years of age. He is married with two children. He has been

the member for Skeena since his election in 2005. He was re-elected in 2009 and

Austin v. Lynch

Page 4

again in 2013. He holds a Bachelor of Arts in Hotel Management from Strathclyde

University in Scotland. After graduation he pursued a career in hotel management in
the Grand Caymans and Toronto, Ontario. From 1990 to 1995 he was the catering
manager at the University of British Columbia. In 1995, he and his family moved to
Terrace initially working at the Terrace Inn, now the Best Western Terrace Inn. In
1999, he returned to university and obtained a Bachelors of Social Work degree at
the University of Northern British Columbia. In 2004, he ran for the New Democratic
Party (NDP) nomination in Skeena.
[10]

He and his wife became foster parents and were foster parents from

approximately 1998 to late 2003 or early 2004. They adopted one of their foster
children. It is not disputed that the young woman referred to by Mr. Lynch was M.
who had been a foster child with Mr. and Mrs. Austin for approximately five years.
[11]

Mr. Austin attended the all-candidates meeting on April 30, 2013, along with

the liberal candidate Ms. Carol LeClerc and the conservative candidate
Mr. Brousseau. The three candidates were seated at the front of the room. There
was a moderator and members of the media were present including Mr. Rod Link,
editor of the Terrace Standard, a local newspaper. There was a TV camera from the
local community cable television channel with an operator. The moderator advised
that the meeting was being televised live.
[12]

The moderator explained the format of the meeting. Each candidate was

permitted to give an opening and closing statement. During the portion of the
meeting before the intermission members of the media asked questions of a specific
candidate. The candidates were given five rebuttal cards they could use if they
wished to respond to the answers given by another candidate. After the break
members of the public were permitted to ask questions at a microphone situated in
one of the aisles.
[13]

The meeting was well attended. The lower part of the hall was substantially

filled with few remaining seats and individuals were standing at the back of the hall.
It appears that in excess of 150 people were present on the main floor of the hall

Austin v. Lynch

Page 5

and the upper gallery had approximately 25 people in it. Also in attendance were the
plaintiffs wife, son, daughter, campaign manager and other individuals involved in
the campaign.
[14]

When members of the public were permitted to ask questions the defendant

Mr. Lynch joined the line-up at the microphone. There were three or four people
ahead of him.
[15]

As the proceedings were audio recorded I have had the benefit of hearing the

words in question. When Mr. Lynch spoke the words relating to sexual abuse there
was an audible reaction from the audience. The recording reveals gasps,
exclamations of denial and booing. The audience reaction was described by a
number of witnesses in a similar fashion, that is, gasps, surprise, taken aback,
appalled, shock, alarming and disbelief.
[16]

Mr. Austins son, Graeme Austin, testified that the audience reaction was a

mix of shock and anger evidenced by the comments and sounds on the recording.
He observed that people were heckling Mr. Lynch in the immediate aftermath of his
statement. It was his impression that people did not believe Mr. Lynch. He said the
liberal candidate looked shocked. After Mr. Lynch spoke Graeme Austin said his
mother and sister left the room.
[17]

Witnesses generally agreed, and it is self-evident from the recording, that

Mr. Austins response to Mr. Lynch was very compelling and that the applause was
for him and not Mr. Lynch.
[18]

Immediately after making the statement Mr. Lynch turned and moved towards

the back of the room heading towards the doors to the lobby of the church. Before
leaving the hall he spoke to a woman, later identified as the wife of Michael
Brousseau. Mrs. Brousseau testified that she did not know Mr. Lynch but after he
made his statement and as he was leaving the hall she touched his arm and said
thank you for being so bold. Their interchange lasted perhaps three to four
seconds. On cross-examination she said what she meant was she remembers

Austin v. Lynch

Page 6

thinking how committed he was to getting up and saying that. That it was bold. She
said she thanked him because she appreciates someone who speaks his mind. She
said it sounded like the truth to her and she was thinking: wow that someone would
stand up and say something like that. She said it sounded like it came from his
heart. She said that what was said was shocking.
[19]

Mr. Lynch testified that as he left the room he turned to a woman he did not

know who said something but all he recalls are the words thank you. He denied
saying anything to her.
[20]

Graeme Austin stated that he yelled at Mr. Lynch as he walked past him and

followed him into the foyer where he confronted him. He testified that Mr. Lynch
responded by repeatedly saying, how do you know it is not true. He characterised
Mr. Lynch as stoic and defiant. His mother and sister were very emotional and both
were in tears. When his mother came over and confronted Mr. Lynch he once again
said, how do you know it is not true. Mr. Lechner, the campaign manager, also
joined them and Graeme Austin said he had to restrain Mr. Lechner as he had less
composure than he did.
[21]

Mr. Lynch was then seen leaving the building and proceeding on foot through

the church parking lot towards Eby Street. There is conflicting evidence respecting
whether he turned down Eby Street on foot, got into a waiting car which then drove
off or got into a car and drove off himself. There is also conflicting evidence on
where the car was located. His wife however testified that he told her he was going
to the meeting and that he walked. She also stated that she assumed he walked
back as she did not hear a car in the driveway when he returned.
[22]

Mr. Austin remained in the meeting and continued to answer questions. The

meeting ended 15 or 20 minutes later. Normally Mr. Austin would have remained to
mingle with the audience but given what had occurred his son and a campaign
worker convinced him to leave immediately.

Austin v. Lynch
[23]

Page 7

Mr. Austin and his family and campaign members met at his home. They

remained there for several hours during which time Mr. Austin sought advice from
NDP campaign headquarters. As a result a decision was made not to address the
issue during the remainder of the campaign. Staff and supporters were informed that
the issue was being dealt without outside the political arena. That was, as it turned
out, an effective decision, as the allegation did not appear to gain traction. Although
the campaign office did receive questions about the statement, because no
comments were provided the inquiries diminished and then ceased.
[24]

Mr. Austin stated he was stunned by what Mr. Lynch had said but given his

experience in public life he remained calm. He noted however that while criticism is
part of the job he never expected this type of allegation. He described Mr. Lynch as
being very calm and composed in the first part of his statement; however, he said
that in the latter part of the statement Mr. Lynchs expression and tone changed and
appeared to react to the audience with anger and defiance in his demeanor. He
described the room as reacting with shock and horror with everyone sort of sucking
in the air as they processed what had just been said.
[25]

He stated he was shocked and remained so when he returned to his home.

He testified that his wife was crying intermittently and his daughter was very upset.
He had trouble believing something like this could happen. He testified that it
affected his family, particularly is wife and daughter, more than him or his son. He
was angry given the impact it was having on his family.
[26]

He went to the RCMP in the morning to report the allegation of potential child

abuse. He then attended the all-candidates meeting in Kitimat, BC. He said at that
point he was emotionally exhausted and just wanted to get through that meeting.
[27]

The events that precipitated the comments began over nine years before the

statements were made. Mr. Lynch testified that he was an active member of the
Catholic Church in Terrace. Some nine years before the all-candidates meeting he
was asked by the Father to provide a Mary Shea (a.k.a. Doll) with rides to Saturday
night mass. Through Ms. Shea, Mr. Lynch met her foster daughter M. and on a few

Austin v. Lynch

Page 8

occasions Mr. Lynch gave her a ride as well. On one of those occasions while at the
home of Ms. Shea, when Ms. Shea went to the washroom, Mr. Lynch and M. had a
conversation in which Mr. Lynch said that M. said Ms. Sheas cooking was better
than at her previous foster home. Mr. Lynch asked her if the other place was not
okay and she that said she had to leave because of abuse. He then asked her what
she meant by abuse, and whether it was verbal or physical or sexual and she said
yes that it was sexual abuse. He asked her why she had not gone to the authorities
and she told him no one would believe her. He offered to take her to the police but
she did not answer as Ms. Shea came back into the room at that point. It was the
last time he saw M.
[28]

On direct examination he stated their conversation lasted less than five

minutes but on discovery had said it was less than one minute and at trial he
confirmed that was correct. He stated on direct that M. was in the car when he gave
Ms. Shea rides less than six times but on discovery had said only two or three times.
He now says it might have been four times. On discovery he acknowledged that M.
had said to him there had been sort of abuse at her previous foster home. He
acknowledged that Ms. Shea had told him that M. was unreliable. He agreed as well
that M. never told him that what she had told him was said in confidence.
[29]

He stated that about one or two weeks later when he picked up Ms. Shea M.

was no longer living with her. Ms. Shea advised him that M. had moved out to be
with her boyfriend. He asked where she had been previously and was told she had
been with the plaintiff.
[30]

He testified that months afterwards he was walking downtown, not intending

to go to Mr. Austins office, but decided as he was passing by Mr. Austins

constituency office to drop in. He asked to speak to Mr. Austin but he was not there
and he left his name and number asking that Mr. Austin call him about a personal
matter. He then went to the Ministry of Children and Families (the Ministry) to ask if
the plaintiff was still a foster parent however they declined to release any

Austin v. Lynch

Page 9

information. He stated that he never heard back from Mr. Austin nor did he follow-up
on his request to speak to Mr. Austin.
[31]

Thereafter the issue of M. and her discussion with Mr. Austin did not arise for

approximately nine years. Mr. Lynch did not raise the issue until during the 2013
provincial election campaign when Mr. Nathan Cullen, the local Member of
Parliament who was campaigning for Mr. Austin come to his door three or four days
before the 2013 all-candidates meeting. He said he was reminded of what M. had
told him and he had asked Mr. Cullen what Mr. Austin did before being elected and
whether he was still a foster parent.
[32]

Mr. Lynch stated he was not political but went to the all-candidates meeting

because he had nothing else to do and felt like going. He also stated that in going to
the meeting he was going to ask the same question about Mr. Austin being a foster
parent but that he did not prepare anything in advance. However, on direct
examination, when asked about his intention in going to the meeting, he stated I
had no intention of asking questions.
[33]

When he entered the room where the meeting was being held he saw the TV

camera in the centre aisle. He said there was a camera operator there for the first
half of the meeting and as well as after the break but he did not see if the operator
stayed for the rest of the meeting.
[34]

When asked why he got up and joined the line at the microphone he stated, I

knew about the situation with the girl and what the girl had told me and I thought no
one represents her; these people dont realize that these kind of things go on and
then thought fine, I will get up and ask if he was still a foster parent.
[35]

He also stated that the biggest deterrent there is for sexual abuse is that

people be aware of it and he raised it because the abuse was alleged to have
occurred in the plaintiffs home.
[36]

He testified that after he spoke Mr. Austins wife approached him in tears and

told him she wanted the name of the girl who told him about the abuse and he told

Austin v. Lynch

Page 10

her he would never give up her name. He said he then left the building and walked
home. He denied there was a car waiting for him or that he had a car there. He lived
only a five minute walk from the church.
[37]

On cross-examination he agreed that he only had the one conversation with

M. and that it was sometime in 2003 or 2004. He made no notes of the conversation.
He was not aware of how old M. was at the time. She did not tell him who abused
her and he did not ask. She did not say if it was a male or a female. She did not
state what the abuse consisted of. He acknowledged that Ms. Shea had told him that
M. was in a bad relationship with a male and that Ms. Shea did not want the man
around her home.
[38]

He did not report the matter to the police or the Ministry.

[39]

He stated that at church the week after the all-candidates meeting he was told

by Ms. Shea that she had heard he said something about M. having to leave her
former foster home and she told him that she had not had to leave. He stated it was
then that he realized he was wrong as it had been his understanding that she had
had to leave because of abuse.
[40]

He stated that he did not know Mr. Brousseau or his wife and had never met

either of them, nor had he ever done business with Mr. Brousseaus roofing
company. The first time he ever spoke to Mr. Brousseau was a day or so after the
all-candidates meeting when Mr. Brousseau came to his home campaigning.
[41]

He denied entering into a conspiracy with Mr. Brousseau.

[42]

He acknowledged that he had been a friend of Mr. Brousseaus mother, Tess

Brousseau, for more than 20 years. He denied that he knew before making the
statement that it would be shocking. He acknowledged the audiences reaction was
as described by the other witnesses and that their applause was for Mr. Austin and
that he was out of place.

Austin v. Lynch

Page 11

Character Evidence
[43]

The defendant Mr. Lynch sought to introduce evidence of several witnesses

respecting his good character, specifically his integrity, reliability and compassion.
The basis for the application was that character evidence ought to be admitted as it
related to his intent and the issue of his good faith was relevant given the claim of
defamation included claims of conspiracy, punitive damages and malice. He argued
the nature of such claims is quasi-criminal and as a result character evidence is
admissible.
[44]

A voir dire was held in which the proposed witnesses were examined and

cross-examined subject to a later ruling on the admissibility of their evidence. This is

that ruling.
[45]

In civil cases the general rule is that character evidence is inadmissible solely

to prove or disprove that a party is or is not the sort of person who would commit or
not commit the alleged act or omission or to bolster their credibility.
[46]

Mr. Justice Slatter, as he then was, in Robertson v. Edmonton (City) Police

Service (#11), 2005 ABQB 499, explained the rationale for excluding such evidence
as follows:
[12]
It should first be noted that general evidence of good character is
rarely admissible in civil cases unless it amounts to similar fact evidence. This
is simply because such evidence is rarely probative. The fact that a litigant
may have done good deeds on a prior occasion is little evidence that they did
not do a bad deed on this particular occasion:

[14]
Evidence of good character is also generally not admitted because it
violates the related rule against proof of collateral facts of marginal relevance.

The policy reasons for limiting proof of facts that are technically relevant, but
too remote, were also discussed in Robertson v. Edmonton (City) Police
Service (#9), supra, at paras. 12-14. A "habit" of responding in a regular
mechanical way to a particular set of circumstances may have probative
value. For example, a doctor may testify that he routinely did a medical
procedure in a particular way. But to attempt to show that someone was in

Austin v. Lynch

Page 12

the "habit" of acting "reasonably and properly" provides no probative

evidence. This is merely evidence of general good character.

[47]

The defendant Mr. Lynch however submits that since in a criminal proceeding

evidence of good character should be admitted because it renders it less probable

that what the prosecution has averred is true (R. v. Rowton (1865), 169 E.R. 1497,
Le & Ca 250) it should also be permitted in civil proceedings for intentional torts like
assault and deceit -- citing Sopinka, Lederman & Bryant, The Law of Evidence in
Canada, 3rd ed (Markham, Ont: LexisNexis, 2009) at 620. This, particularly given
the modern approach to evidence admissibility, emphasizes necessity and reliability.
The defendant Mr. Lynch refers as well to Plester v. Wawanesa Mutual Insurance
Co. (2006), 269 D.L.R. (4th) 624, (Ont. C.A.), where the Court held that character
evidence was admissible in a civil proceeding to disprove an allegation that would
constitute a crime. This was approved of and followed in Hathaway v. British
Columbia (Superintendent of Motor Vehicles), 2013 BCSC 938 at para. 18:
[18]
The petitioner argues, and I agree, that the adjudicator is simply
wrong in stating that she is not authorized to consider the evidence of good
character set out in her statutory declaration and the email from her friend
confirming the petitioner's advocacy against drinking and driving. By leading
this evidence, the petitioner put her character in issue, which she had the
right to do: see, Plester v. Wawanesa Mutual insurance Company, 269 D.L.R.
(4th) 624, [2006] O.J. No. 2139, at paras. 41-44 (Ont. C.A.). On the reasoning
in Plester, if one can put character in issue in civil proceedings in order to
defend against an allegation that would amount to a crime if made in criminal
proceedings, I can see no good reason to prevent the petitioner here from
putting her character in issue on her application for a review under s. 215.48
of the Act.

[48]

The evidence in question consisted of five individuals who testified respecting

their knowledge of, and relationship to, Mr. Lynch, primarily through involvement in
the volunteer fire department and Mr. Lynchs role as coroner. The disputed portions
of their evidence consisted of the witnesses statements that he was professional,
caring and reliable. The evidence was sought to be introduced to support the
argument that Mr. Lynch has given a lifetime of service to his community, is
reputable and that this incident was completely out of character.

Austin v. Lynch
[49]

Page 13

In my view such evidence if admissible in this instance has little if any

probative value. The defendants purpose in seeking to introduce the character

evidence was to disprove that he acted with malice as it relates to the defence of
qualified privilege. As stated below, I do not find that the defence of qualified
privilege is applicable in this case and as a result the plaintiff does not have to
demonstrate that the defendant acted with malice. In any event also as explained
later in these reasons I do not find that the defendant acted with malice regardless of
the admissibility of the character evidence, an issue I need not determine as a result.
[50]

The portions of the evidence of the witnesses referred to on the voir dire that

is not in issue is I understand evidence on the trial by consent.

Law and Discussion
[51]

The burden on a plaintiff in a defamation action is to prove three things to

obtain judgment and an award of damages: (1) that the impugned words were
defamatory, in the sense that they would tend to lower the plaintiffs reputation in the
eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and
(3) that the words were published, meaning that they were communicated to at least
one person other than the plaintiff (Grant v. Torstar Corp., 2009 SCC 61 at
para. 28).
[52]

At common law libel is a defamatory expression in writing or some other

permanent form while slander is an oral statement or some other form of transitory
expression. If an expression tends to lower a persons reputation in the estimation of
ordinary reasonable members of society generally, or exposes a person to hatred,
contempt or ridicule, it is defamatory. If the expression would cause a person to be
shunned or avoided, that too is defamatory. If a person authorizes, incites, approves,
encourages or assists in the publication of a defamatory expression that person may
be liable along with the person who actually published it (Botiuk v. Toronto Free
Press Publications Ltd., [1995] 3 S.C.R. 3 at paras. 73-77).
[53]
issue.

As noted above the plaintiff relies on the inferential meaning of the words in

Austin v. Lynch
[54]

Page 14

In Lawson v. Baines, 2012 BCCA 117, the Court of Appeal addressed the

issue of proof of the inferential meaning:

[23]
The meaning of the remainder of the words complained of was
determined by the trial judge, based upon the inferential meaning or
impression left by the words complained of. Reliance on this means of proof
requires that the meaning is that which the ordinary person, without special
knowledge, will infer from the words complained of and this meaning must be
determined objectively. Evidence concerning what the reasonable and
ordinary meaning of the words is, or the sense in which they might be
understood, or of facts giving rise to the inferences to be drawn from the
words is inadmissible if this means of proof is relied upon: see Hodgson v.
Canadian Newspapers Co. (1988), 39 O.R. (3d) 235 (Gen. Div.), varied on
appeal as to damages (2000), 49 O.R. (3d) 161 (C.A.), leave to appeal
dismissed [2000] S.C.C.A. No. 465 at para. 37, and the authorities referred to
therein.

[55]

Determination of whether a statement is defamatory invokes a two-question

test both of which must be answered affirmatively. Firstly the statement must be
capable of being defamatory and secondly is the statement in fact defamatory. The
question of whether the statement is capable of being defamatory is one of law.
Whether the statement is in fact defamatory is a question for the trier of fact based
on the evidence before the court.
[56]

In Lawson the gatekeeper role of the trial judge respecting whether the words

are reasonably capable of a defamatory meaning was described as follows:

[26]
The first task of a judge in a defamation case is to answer the
"threshold question" of "whether the words cited are reasonably capable of a
defamatory meaning": Laufer v. Bucklaschuk (1999), [2000] 2 W.W.R. 462 at
470-471 (Man. C.A.). The judge, if sitting alone, then plays a second role; as
a finder of fact, in determining whether the words do, in fact, bear that
defamatory meaning.
[27]
In executing the first role, the question is whether the words
complained of are reasonably capable of being understood in a defamatory
sense. In exercising this gatekeeper role, the judge must keep in mind that
the question does not involve finding that the words are in fact defamatory,
but concerns only what the words are capable of meaning. When performing
this task, the judge must not stray from a "common sense construction" of
these words (as it was termed in Makow v. Winnipeg Sun, 2003 MBQB 56,
[2003] 11 W.W.R. 166, affirmed 2004 MBCA 41) and seize upon one
marginal to that construction.

Austin v. Lynch
[57]

Page 15

In determining whether the expression is defamatory, it is the sense in which

the words would reasonably have been understood by an ordinary person in light of
generally known facts that is relevant. The intention of the author and publisher is
not relevant nor indeed is the opinion of the plaintiff. In performing this function the
court is to take into account the context in which the words were used and the mode
of publication (Hodgson v. Canadian Newspapers Company Limited (1988), 39 O.R.
(3d) 235 (Gen. Div.) varied on other grounds (2000), 49 O.R. (3d) 161 (C.A.).
[58]

It is not disputed that the natural and ordinary inferential meanings of the

words used by Mr. Lynch were that the plaintiff was guilty of sexually abusing a
female foster child, that he was guilty of a criminal office, that the plaintiff was a
sexual predator and that he was underserving of his high standing in the community
and unworthy to serve as an elected representative. As such they were clearly
capable of defamatory meaning.
[59]

The issue then is whether the words complained of were in fact defamatory.

[60]

Defamation may be proven in three ways. In Lawson at para. 13, Hinkson

J.A, as he then was, for the Court stated:

[13]

[61]

There are three alternate means by which defamation can be proven:

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).

The defendant Mr. Lynch does not seriously dispute that the words

complained of are, in fact, defamatory.

[62]

In my view the words complained of bear the inferential meanings pleaded,

that is, the sting of the libel alleged is that the plaintiff is guilty of sexually abusing a

Austin v. Lynch

Page 16

female foster child; is guilty of sexual assault of a female child contrary to s. 271 of
the Criminal Code, is a sexual predator who should not be trusted or left alone with
children and is undeserving of his high standing in the community and is unworthy to
be elected to public office. The statement of Mr. Lynch read as a whole would leave
the ordinary reader with the impression that Mr. Austin had abused a foster child in
his care.
[63]

An accusation of criminal conduct does not have to describe the crime

technically in accordance with the Criminal Code. It need not even specify the
offence. An allegation that a person is guilty of acts constituting a crime is sufficient
(Campbell v. Cartmell (1999), 104 O.T.C. 349 (S.C.J.) at paras. 41-42; see also
Clark v. East Sooke Rural Association et al, 2004 BCSC 1120).
[64]

The language used by Mr. Lynch is, as a matter of fact, defamatory as a third

party would know that the alleged conduct was a criminal offence -- that is the
meaning that a reasonable person would understood the words to have. A
slanderous assertion that involves imputation of a criminal offence is actionable
per se (Campbell at para. 42).
[65]

Mr. Lynch himself noted the personal nature of the matter yet he chose to

raise it, some nine years after the event, in the most highly visible way, in front of a
large audience.
[66]

In addition he did not go to the microphone to ask a question. Rather his clear

intention was to make a statement. There was no question until the moderator
prompted him twice and even then it was in its context raising the issue of whether
Mr. Austin was still in a position to prey on young girls. He did not ask outright if
Mr. Austin was guilty of criminal conduct.
[67]

The statement itself was a misrepresentation as Mr. Lynch embellished and

misrepresented the nature of his relationship with M. His statement left the
impression that the source was of considered credibility.

Austin v. Lynch
[68]

Page 17

In my view in framing the statement in this manner he enhanced the credibility

of the statement implying that he had conducted a reasonable investigation and that
because of his relationship with M. the statements were therefore more reliable and
true.
Publication and Republication
[69]

As noted earlier publication must be proven. In Brown on Defamation:

Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed. (Toronto:
Carswell, 1999) (loose-leaf updated September 2012) vol. 2 at 7-101, the author
states:

A publication will not be found simply because defamatory information is

placed in a position where it may be seen or read by others if there is no
evidence that it was actually seen or read. ... If a writing is delivered into
another person's hands but he does not or cannot read it, or if an utterance is
made in his presence does not hear it, or cannot understand the language
[Footnote 278] ... there is no publication.
Footnote 278: "[I]t is incumbent upon the plaintiff not only to prove that the
written document was handed to some third person but that the read and
understood it". Gordon J. in Arnott v. College of Physicians & Surgeons of
Saskatchewan (1953), 10 W.W.R. (N.S.) 446 at 465 (Sask. C.A.). ...

[70]

In Gatley on Libel and Slander, 12th ed. (London: Sweet & Maxwell, 2008), at

para. 6.21:

It is not necessary for the plaintiff in every case to prove directly that the
words complained of were brought to the actual knowledge of some third
person. If he proves facts from which it can reasonably be inferred that the
words were brought to the knowledge of some third person, he will establish
a prima facie case.

[71]

There is no issue that publication occurred to those in attendance at the all-

candidates meeting. Nor is there an issue that those present heard and understood
the defamatory words. The defendant Mr. Lynch however disputes that publication
through the local cable TV community station has been established.

Austin v. Lynch
[72]

Page 18

While the local cable TV provider was present with their mobile TV unit the

defendant Mr. Lynch submits that plaintiff has not proven publication over Cable TV
because no admissible evidence established that anyone saw the broadcast.
[73]

The plaintiff called Mr. Devon Wall from Citywest, the local cable provider. He

testified that he commenced working for Citywest in 2014 hence he was not aware
of the night in question. He testified that there were no records respecting what was
broadcast April 30, 2013. He did confirm that they broadcast community events and
have a mobile broadcast unit. He also confirmed that the location of the allcandidates meeting was one from which they then could broadcast remotely.
[74]

Mr. Lynch acknowledged that he had seen the TV camera, had heard the

moderator state the meeting was being broadcast and that he had seen the camera
at other events that were broadcast on the local community channel.
[75]

The Libel and Slander Act, R.S.B.C. 1996 c. 263 defines broadcasting and its

relationship to publication as follows:

Definitions
1

In this Act:
"broadcasting" means the dissemination of writing, signs, signals,
pictures, sounds or intelligence of any nature intended for direct
reception by, or which is available on subscription to, the general
public
(a)

by means of a device utilizing electromagnetic

waves of frequencies lower than 3 000 GHz
propagated in space without artificial guide, or

(b)

through a community antenna television system

operated by a person licensed under the
Broadcasting Act (Canada) to carry on a
broadcasting receiving undertaking,

and "broadcast" has a corresponding meaning;

"public meeting" means a meeting genuinely and lawfully held for a
public purpose, and for the furtherance or discussion of a matter of
public concern, whether the admission to it is general or restricted;

Defamation in broadcast

Austin v. Lynch

Page 19

2
Defamatory words in a broadcast are deemed to be published and to
constitute libel.

[76]

This appears to establish publication by statutory presumption when the

words have been broadcast. In Taylor-Wright v. CHBC-TV (1999), 86 A.C.W.S. (3d)

452 (B.C.S.C.) affd 2000 BCCA 629 with additional reasons at 2001 BCCA 298,
Mr. Justice Drossos noted:
[27]
The plaintiff must also plead and prove that the defamatory statement
was communicated to a third party. The onus is on the plaintiff to show that
the defendant was responsible for the publication: Gaskin v. Retail Credit
Co., [1965] S.C.R. 297. However, where the publication takes place in a
book, newspaper, or broadcast transmitted to the general public, the
communication to a third party is presumed and it is not necessary for the
plaintiff to prove publication to any specific individual. Such a broadcast exists
in the case at bar.

[77]

It is not disputed that the local community television had a camera at the all-

candidates meeting and that it had an operator. According to the moderator it was
being broadcast. In my opinion the plaintiff has established a prima facie case that
the meeting was broadcast. (I do not rely on the statutory presumption as the
evidence did not establish that means of broadcast nor the licencing of the local
service provider). However, while republication is established the number of viewers
is not. The evidence does not indicate how widely the broadcast was disseminated
or the number of viewers hence the republications effect on damages is limited.
Qualified Privilege
[78]

The defendant asserts the defence of qualified privilege on the basis the

statements were made on an occasion when the public interest in free and candid
speech trumped the public and private interest in protecting individual reputation.
[79]

In Botiuk the Supreme Court of Canada discussed qualified privilege as

follows:
78
Qualified privilege attaches to the occasion upon which the
communication is made, and not to the communication itself. It was explained
in this way by Lord Atkinson in Adam v. Ward, [1917] A.C. 309 (H.L.), at
p. 334:

Austin v. Lynch

Page 20

a privileged occasion is an occasion where the person

who makes a communication has an interest or a duty, legal,
social or moral, to make it to the person to whom it is made,
and the person to whom it is so made has a corresponding
interest or duty to receive it. This reciprocity is essential.
See also McLoughlin v. Kutasy, [1979] 2 S.C.R. 311, at p. 321.
79
Where an occasion is shown to be privileged, the bona fides of the
defendant is presumed and the defendant is free to publish remarks which
may be defamatory and untrue about the plaintiff. However, the privilege is
not absolute. It may be defeated in two ways. The first arises if the dominant
motive for publishing is actual or express malice. Malice is commonly
understood as ill will toward someone, but it also relates to any indirect
motive which conflicts with the sense of duty created by the occasion. Malice
may be established by showing that the defendant either knew that he was
not telling the truth, or was reckless in that regard.
80
Second, qualified privilege may be defeated if the limits of the duty or
interest have been exceeded. In other words, if the information
communicated was not reasonably appropriate to the legitimate purposes of
the occasion, the qualified privilege will be defeated. This was discussed at
some length in Hill, supra, and there is no need to repeat it in these reasons.

[80]

In Leenen v. CBC (2000), 48 O.R. (3d) 656 (S.C.J.), affd (2001),54 O.R. (3d)

612 (C.A.), the Court stated:

[107]

The defence of qualified privilege has been well described as follows:

There are certain occasions on which a person is entitled to
publish untrue statements about another, where he or she will
not be liable even though the publication is defamatory. One
such occasion is called a conditional or qualified privilege. No
action can be maintained against a defendant unless it is
shown that he or she published the statement with actual or
express malice. An occasion is privileged if a statement is
fairly made by a person in the discharge of some public or
private duty, or for the purpose of pursuing or protecting some
private interest, provided it is made to a person who has some
corresponding interest in receiving it. The duty may be either
legal, social or moral. The test is whether persons of ordinary
intelligence and moral principle, or the great majority of rightminded persons, would have considered it a duty to
communicate the information to those to whom it was
published.

(The Law of Defamation in Canada, supra, at p. 13-4.)

[108] Therefore, the test is twofold. To succeed in this defence the
defendant must establish not only some public or private duty, but also that
the recipient had a corresponding interest in receiving the information. The
test is clearly an objective one. The issue was dealt with extensively in a
recent decision of the House of Lords, Reynolds v. Time Newspapers Ltd. et

Austin v. Lynch

Page 21

al., [1999] H.L.J. No. 45 (QL) (released October 28, 1999). The notion of
reciprocity was reaffirmed in that decision where at para. 13-14 Lord Nicholls
of Birkenhead stated:
There are occasions when the person to whom a statement is
made has a special interest in learning the honestly held views
of another person, even if those views are defamatory of
someone else and cannot be proved to be true. When the
interest is of sufficient importance to outweigh the need to
protect reputation, the occasion is regarded as privileged.
Sometimes the need for uninhibited expression is of such a high order that
the occasion attracts absolute privilege, as with statements made by judges
or advocates or witnesses in the course of judicial proceedings. More usually,
the privilege is qualified in that it can be defeated if the plaintiff proves the
defendant was actuated by malice.
[109] The trier of fact, therefore, must carefully consider the position of both
parties when deciding whether an occasion is privileged. A court must take
into consideration all circumstances in first determining whether a duty
existed in the conveyor of the information, and correspondingly whether there
was an appropriate interest or right to know the information being conveyed.
In order to assist trial judges, Lord Nicholls suggested some matters which
ought to be taken into account. These are found at para. 57 as follows:
(a)

The seriousness of the allegation. The more serious

the charge the more the public is misinformed and the
individual harmed, if the allegation is not true.

(b)

The nature of the information, and the extent to which

the subject-matter is a matter of public concern.

(c)

The source of the information. Some informants have

no direct knowledge of the events. Some have their
own axes to grind, or are being paid for their stories.

(d)

The steps taken to verify the information.

(e)

The status of the information. The allegation may have

already been the subject of an investigation which
commands respect.

(f)

The urgency of the matter. News is often a perishable

commodity.

(g)

Whether comment was sought from the defendant. He

may have information others do not possess or have
not disclosed. An approach to the defendant will not
always be necessary.

(h)

Whether the article contained the gist of the plaintiff's

side of the story.

(i)

The tone of the article. A newspaper can raise queries

or call for an investigation. It need not adopt allegations
as statements of fact.

Austin v. Lynch
(j)

[81]

Page 22
The circumstances of the publication, including the
timing.

As a result the circumstances in each case must be examined in the context

of the particular publisher and the specific recipient. It is not for example a matter of
simply stating that all-candidates meetings are the subject of qualified privilege.
That is, the event itself does not determine the occasion nor is it a matter of
pigeonholing the occasion (Stuart v. Hugh, 2011 BCSC 427 at para. 45).
[82]

In Marley v. Kains, 2011 BCSC 1306, as in this case the plaintiff was a

candidate in a provincial election attending an all-candidates forum. While no

defamatory expression was found and qualified privilege applied the case is of
assistance as it makes clear why qualified privilege existed in that case and assists
in assessing why qualified privilege does not apply here.
[83]

The defendant in Marley asked the plaintiff about his involvement in a serious

investigation in connection with the prior civic elections. Madam Justice Adair found
that the expression was not defamatory stating:
[76]
Mr. Baron submits that Mr. Kains words are defamatory, based on the
test set out in Botiuk, at para. 62, and by Mr. Justice LeBel in WIC, at paras.
67-75. He submits further that the clear inference of Mr. Kains' words was
that Mr. Marley was lacking in integrity or otherwise of bad character, and
someone who was unfit to be a candidate for public office.
[77]
In a different context, Mr. Kains' words may have been defamatory,
passing the "low threshold" that the law requires. However, I find that, in the
full context in which the words were spoken, they were not defamatory. In
that context, I do not think there was any realistic threat that Mr. Kains' words
would reduce a reasonable person's opinion of Mr. Marley. I will explain why I
have come to this conclusion.
[78]
The all-candidates forum included a period for voters to ask the
candidates questions. The fact that a voter -- Mr. Kains -- directed a question
to Mr. Marley cannot have come as a surprise to anyone. In particular,
Mr. Marley cannot have been surprised that a question would be put to him:
that was one of the reasons he was there. Mr. Marley, who had many years
of active political involvement, understood very well that candidates could
expect to have to field uncomfortable questions.
[79]
Mr. Kains' words were uncomfortable for Mr. Marley. However,
Mr. Marley kept cool in front of the audience and the camera. In responding,
Mr. Marley was calm and matter-of-fact. In terms of its content, Mr. Marley's
response to Mr. Kains was articulate and detailed. Mr. Marley did not have to

Austin v. Lynch

Page 23

await another opportunity to get his message out. Rather, he could -- and did
-- provide a full response immediately after the question was posed, in front
of the very people who had heard Mr. Kains' words. Everyone in the room
would have heard Mr. Marley say that he would be very surprised if the
Attorney General's ministry was investigating him and explain that the only
investigation he knew about was one in relation to a claim he (and Mr. Lewis)
had triggered. Mr. Marley's statements were not challenged by anyone. In
front of the assembly, Mr. Kains accepted them.
[80]
Mr. Marley was given the further opportunity by the moderator to
probe Mr. Kains about the basis for his question. Mr. Marley waved that off,
with an expressive gesture that implied to do so would be a waste of his and
everyone else's time, because Mr. Kains was not only "underhanded" but had
no idea what he was talking about.
[81]
Ms. McMillan had a strong reaction to Mr. Kains' question. However,
in my view, that was simply a normal reaction in the face of a perceived
attack on a loved one, even where the loved one is completely capable of
fending off the attack and, indeed, crushing the attacker. There was no risk
that Mr. Kains' question would tend to lower Ms. McMillan's opinion of
Mr. Marley, or the opinions held by Mr. Marley's supporters. There is no
evidence that any of them had the slightest doubt that what Mr. Marley said
was true.
[82]
Accordingly, in my view, Mr. Kains' words, in their full context, did not
create a realistic threat to Mr. Marley's reputation in the eyes of a reasonable
person.

[84]

Adair J. held that the words were not slander per se as they did not amount

to accusations imputing the commission of a criminal offence (at para. 84). She
found that the all candidates forum was an occasion for voters to ask questions and
get answers. She also held that the content of the question was reasonably
appropriate in the context of the all-candidates forum and did not exceed the scope
of the privilege.
[85]

As is evident from Marley, in the context of an election all-candidates

meeting, questions that are probing and critical are entirely appropriate. In Marley
the defendant had a question based on a letter he had received and which he
misunderstood thinking there was a complaint against Mr. Marley when in fact
Mr. Marley had initiated a complaint. In addition the defendant asked a question and
one that was relevant to the voting process given that most voters would want to
know if a candidate was under investigation. That question was germane and
relevant to the occasion.

Austin v. Lynch
[86]

Page 24

As previously noted the defamatory expression in this case was serious,

given the inference that the plaintiff was guilty of particularly abhorrent behaviour
constituting the criminal offence of child abuse. It is not in issue that Mr. Lynch was
the publisher. The defendant Mr. Lynch has provided no explanation for why the
statement was made other than one of stupidity. Mr. Lynch volunteered the
information for no apparent reason. It had nothing to do with the 2013 election
campaign. No justification for its publication has been provided nor, given the
circumstances, can there be one.
[87]

The publication occurred in the most public of venues, a broadcast all-

candidates meeting during a provincial election attended by local electors, the press
and others.
[88]

The defendant Mr. Lynch claimed a duty to speak for the child. Unlike in

Marley it was not a matter relating to the election. Indeed Mr. Lynch stated in his
evidence that he had received the information in confidence from M. In addition he
was well aware of the reporting obligations to the Ministry and the police. There was
no duty to raise the issue in the all-candidates meeting. Nor was there any statutory
duty for Mr. Lynch to speak.
[89]

There was also no urgency in this instance. The information Mr. Lynch relied

on was provided nine years prior to the all-candidates meeting. M. by that time was
an adult. Other than his initial attempt to determine through the Ministry if Mr. Austin
was a foster parent and his leaving a message at the constituency office asking
Mr. Austin to call, him he did nothing about the information for nine years. Any
objective consideration of the comments of M. would have revealed the weaknesses
in the information.
[90]

The question of whether the statement was germane to the occasion is a

question of law.
[91]

The all-candidates meeting was clearly an occasion for the candidates to

speak and to answer questions, initially from the press and then from the public. The

Austin v. Lynch

Page 25

format of the meeting was that only the candidates were permitted to make
statements. Mr. Lynchs statement was not a question. It alleged a criminal offence
and lacked any legitimate basis. When he chose to speak it was under the rules of
the meeting that provided members of the public with an opportunity to ask a
question, nothing more.
[92]

The statement clearly was not germane. The self-apparent nature of that is

supported by the shocked reaction of the audience.

[93]

As a result the occasion was exceeded and qualified privilege does not apply.

Malice
Law on Malice
[94]

A finding of malice can defeat a defence of qualified privilege. In Smith v.

Cross, 2009 BCCA 529, Madam Justice Kirkpatrick summarized the law on malice
as follows:
[32]
The term malice is more expansive than the everyday meaning of a
desire to harm another. Brown at 16.3(2) suggests the alternate language of
bad faith This Court summarized the definition in Creative Salmon at
para. 37:
In Botiuk at para. 79, malice was defined to include ill will and
any indirect motive which conflicts with the sense of duty
created by the occasion [in the case of qualified privilege].
The definition of malice stated by Mr. Justice Dickson in
Cherneskey at 1099, and adopted by Mr. Justice LeBel in WIC
Radio at para. 102, includes spite or ill will and any indirect
motive or ulterior purpose .
[33]
The Supreme Court of Canada summarized the law of malice and
qualified privilege in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R.
1130, 126 D.L.R (4th) 129 at para. 145:
Malice is commonly understood, in the popular sense, as spite
or ill-will. However, it also includes, as Dickson J. (as he then
was) pointed out in dissent in Cherneskey, supra, at p. 1099,
any indirect motive or ulterior purpose that conflicts with the
sense of duly or the mutual interest which the occasion
created. See, also, Taylor v. Despard, [1956] O.R. 963 (C.A.).
Malice may also be established by showing that the defendant
spoke dishonestly, or in knowing or reckless disregard for the
truth. See McLoughlin, supra, at pp. 323-24, and Netupsky v.
Craig, [1973] S.C.R. 55, at pp. 61-62.

Austin v. Lynch

Page 26

[34]
In Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004) at
299, R.D. McConchie and D.A. Potts reduce this statement to a helpful
framework for the categories under which a finding of malice can be made. A
defendant is actuated by malice if he or she publishes the comment:
i)

Knowing it was false; or

ii)

With reckless indifference whether it is true or false; or

iii)

For the dominant purpose of injuring the plaintiff

because of spite or animosity; or

iv)

For some other dominant purpose which is improper or

indirect, or also, if the occasion is privileged, for a
dominant purpose not related to the occasion.

More than one finding can be present in a given case (McConchie and Potts
at 299).

[95]

Evidence of malice may be extrinsic or intrinsic, the latter being found in the

defamatory expression itself (Davies & Davies Ltd. v. Kott, [1979] 2 S.C.R. 686 at
696). Extrinsic evidence is evidence other than the statement itself from which
improper motive can be inferred (Leenen v. CBC (2000), 48 O.R. (3d) 656 at para.
143 (S.C.J.)).
[96]

In Horrocks v. Lowe, [1974] 1 All E.R. 662 at 669-670, [1975] A.C. 135 (H.L.),

Lord Diplock stated:

Even a positive belief in the truth of what is published on a privileged

occasion -- which is presumed until the contrary is proved -- may not be
sufficient to negative express malice if it can be proved that the defendant
misused the occasion for some purpose other than that for which the privilege
is accorded by the law. The commonest case is where the dominant motive
which actuates the defendant is not a desire to perform the relevant duty or to
protect the relevant interest, but to give vent to his personal spite or ill-will
towards the person he defames. If this be proved, then even positive belief in
the truth of what was published will not enable the defamer to avail himself of
the protection of the privilege to which he would otherwise have been entitled.
There may be instances of improper motives which destroy the privilege apart
from personal spite. A defendant's dominant motive may have been to obtain
some private advantage unconnected with the duty or the interest which
constitutes the reason for the privilege. If so, he loses the benefit of the
privilege despite his positive belief that what he said or wrote was true.
[Emphasis added.]

Austin v. Lynch
[97]

Page 27

In Leverman v. Campbell Sharp Ltd.et al. (1987), 36 D.L.R. (4th) 401 at 407,

12 B.C.L.R. (2d) 57 (C.A.) the Court addressed the issue of carelessness in arriving
at an honest belief in the truth of what was published as opposed to carelessness
indicating a lack of honest belief. The Court of Appeal relied on Horrocks and said
this:
The question then centred on whether carelessness was to be equated with
not holding an honest belief in the truth of the statement. That very point was
addressed by Lord Diplock in the passage in Horrocks v. Lowe immediately
following the passage which I have already quoted, at p. 669:
If he publishes untrue matter recklessly, without considering or
caring whether it be true or not, he is in this as in other
branches of the law, treated as if he knew it to be false. But
indifference to the truth of what he publishes is not to be
equated with carelessness, impulsiveness, or irrationality in
arriving at a positive belief that it is true. The freedom of
speech protected by the law of qualified privilege may be
applied by all sorts and conditions of men. In affording to them
immunity from suit if they have acted in good faith in
compliance with a legal or moral duty or in protection of a
legitimate interest the law must take them as it finds them. In
ordinary life, it is rare indeed for people to form their beliefs by
a process of logical deduction from facts ascertained by a
rigorous search for all available evidence and a judicious
assessment of its probative value.

[98]

As stated by Greer L.J. in Watt v. Longsdon, [1930] 1 K.B. 130 (C.A.) at 154-

155, quoted with approval by the British Columbia Court of Appeal in Christie v.
Westcom Radio Group Ltd. (1990), 75 D.L.R. (4th) 546 at 554-555, 51 B.C.L.R. (2d)
357 (C.A.), leave to appeal refused:

[a] man may believe in the truth of a defamatory statement,

and yet when he publishes it be reckless whether his belief be
well founded or not. His motive for publishing a libel on a
privileged occasion may be an improper one, even though he
believes the statement to be true. It may be moved by hatred
or dislike, or a desire to injure the subject of the libel, and may
be using the occasion for that purpose, and if he is doing so
the publication will be maliciously made, even though he may
believe the defamatory statements to be true.

Austin v. Lynch
[99]

Page 28

In Botiuk at para. 96:

[96]
A distinction in law exists between "carelessness" with regard to the
truth, which does not amount to actual malice, and "recklessness", which
does. In The Law of Defamation in Canada, supra, R. E. Brown refers to the
distinction in this way (at pp. 16-29 to 16-30):
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.

[100] The Court in Botiuk also noted that where the defendants were lawyers that
which might be characterized as careless behaviour in a lay person could well
become reckless behaviour in a lawyer (para. 98).
[101] In Royal Aquarium and Summer and Winter Garden Society Ltd. v.
Parkinson, [1892] 1 Q.B. 431at 516, Lord Esher noted, [i]f from anger or some other
wrong motive a person allows his mind to get into such a state that he is reckless
whether the aspersions he casts on other people are true or false, then I think that a
jury is justified in finding that he has not used but abused the occasion.
Discussion of Malice
[102] The plaintiff submits that Mr. Lynchs malice is unquestionable. That
submission is founded on the argument that Mr. Lynch either made the accusation
with knowledge it was untrue, or at least with reckless indifference to the truth and
for the predominant purpose of destroying or seriously damaging Mr. Austins
chances of re-election. He submits that malice is found in the use of words that left
an impression that Mr. Lynch knew he falsely embellished and misrepresented his
relationship with M. giving the allegations more weight. He also says further
evidence can be found intrinsically in the actual words spoken and in the manner in
which they were made.
[103] Mr. Lynch in his response denies he was actuated by express malice or any
malice, asserting that his sole purpose in making the statements was to determine if

Austin v. Lynch

Page 29

the plaintiff was still a foster parent, aware of the complaint and, if he was, what
action he had taken to deal with it. He pleads that he acted out of the honest, sincere
and good faith belief that allegations of sexual abuse should be dealt with in a
serious and forthright manner.
[104] In written submissions Mr. Lynch stated that he had acted from misdirected
good faith and foolishly, but not maliciously. In oral submissions his counsel
characterized him as having behaved stupidly and that making the allegation was
foolish and cruel but not malicious. He submitted that there no evidence Mr. Lynch
bore ill will towards Mr. Austin. Mr. Crampton referred to Hanlons razor with respect
to the inferences to be drawn: that is never assume bad intentions when assuming
stupidity is enough or never assume malice when stupidity will suffice.
[105] The plaintiff seeks to have certain inferences drawn from the actions and
statements of Mr. Lynch to show that he did not act in good faith and that he was
reckless as opposed to foolish or careless in arriving at his asserted honest belief in
what M. had told him.
[106] In R. v. Mustard (G), 2016 MBCA 40 at para. 31, the Court discussed what is
required to find an inference as follows:
[31]
The law recognises a distinction between speculation and evidence
(see R v DC, 2012 SCC 48 at para 27, [2012] 2 SCR 626). A proper
inference can only be made where there are objective facts on the record to
support it and logic reasonably allows the inference to be drawn from those
objective facts (see Caswell v Powell Duffryn Associated Colleries, Ltd,
[1940] AC 152 at 169-70 (HL); and Cloutier v The Queen, [1979] 2 SCR 709
at 731). That said, the line between a proper inference and one that is
nothing more than speculation or guess work is neither clear nor sharp
(Colin Tapper, Cross and Tapper on Evidence, 10th ed (London, UK:
LexisNexis, 2004) at 31).
[32]
The starting point for appellate review of a decision as to what
inferences the evidence can reasonably support is to identify the context for
the proposed inference based on the record. Separating a reasonable
inference from an unreasonable or speculative one cannot be done in a
vacuum.

[107] The plaintiff submits that Mr. Lynchs background, as a coroner for 23 years
who presided over inquests, is relevant to the analysis of his behaviour. Mr. Lynch

Austin v. Lynch

Page 30

on cross-examination acknowledged that he had presided over inquests, that they

involved an exercise in fact finding and that he understood the need to hear from all
relevant witnesses and that assessment of conflicting stories was required.
[108] The plaintiff argues that as a result of that role and observing lawyers call
witnesses and probe conflicting stories he was clearly familiar with the process and
the concerns that arise in receiving information. To that extent I find it reasonable to
hold him to a somewhat higher standard than a layman with no such experience;
although not to the standard of legal counsel as was the case in Botiuk.
[109] The plaintiff submits that it can be inferred that Mr. Lynch either did not have
an honest belief or was reckless from the following:
a) Mr. Lynchs discussion with M. was very brief and he was the one who
suggested that sexual abuse had occurred;
b) Mr. Lynch failed to question M. in any manner regarding details that would
allow a weighing and assessment of M.s statement;
c) Mr. Lynch failed to ask Ms. Shea about the allegation of M.;
d) Mr. Lynch failed to report the allegation to the police;
e) Mr. Lynch did not pursue the message he had left for Mr. Austin;
f) Mr. Lynch did not frame the statement as a question;
g) Mr. Lynch stated the information was private hence had not raised it with
Ms. Shea and further left only a request with Mr. Austin to call him on a
private matter yet eventually raised it in the most public of forums;
h) Mr. Lynch left the impression that he was close to M. which was
misleading given the brevity of his contact with her such that they could
not have become buds as he stated;

Austin v. Lynch

Page 31

i) Despite knowing that M. had behavioural problems and was unreliable

and that she had not only left the Austin home but also that of Ms. Shea,
he simply accepted her responses to his leading questions and failed to
probe any further. In addition he made no real effort to speak to Mr. Austin
or anyone else for nine years.
[110] The plaintiff suggested the motivation for the statement was to destroy
Mr. Austins chance of re-election. However, the evidence is that Mr. Lynch was not
politically active. Nor is there other evidence of such a motivation. Having heard
Mr. Lynch I am not satisfied that he acted out of a motive to discredit Mr. Austin in
the election.
[111] When put to him that he must have expected the strong reaction and that
people would find it shocking he denied that stating: All I thought about was the
young girl.
[112] While during cross-examination discrepancies respecting his evidence at trial
and on discovery were put to him, these discrepancies related to matters of degree
or emphasis or were matters of explanation. I am not satisfied that any deliberate
intention to mislead was established. I find that in making the statement he was
careless, foolish and acted stupidly.
[113] I accept that because of his belief that his son was sexually molested by a
known child molester and that that in part lead to his sons suicide he was
particularly sensitive to the issue of sexual abuse of children. I find that this lead to
blind acceptance of what M. said without applying any analysis, assessment,
investigation or further inquiry. His honest belief in what M. told him is supported by
his emotional comments during the all-candidates meeting about being a father and
grandfather and is also evidenced by his affirmative response respecting seeing
Mr. Austin in court. The embellishment of his relationship with M. referred to by
plaintiffs counsel as evidence of malice is equally explained by his unfounded belief
respecting what M. said.

Austin v. Lynch

Page 32

[114] I am not satisfied on the balance of probabilities that Mr. Lynch had an
improper motive or was using the occasion to injure or harm Mr. Austin. The facts
relied on by the plaintiff while raising suspicions respecting Mr. Lynchs motivation
can be explained as irrational behaviour based on an incorrect belief respecting M.s
statement to him. I do not find that Mr. Lynch spoke out of spite or ill will nor do I find
that he had an indirect or ulterior motive. While superficially that may appear to be
the case on the facts I find that it was an act of thoughtless stupidity. I am satisfied
that he did believe M. because of his personal circumstances involving the loss of
his son and the abuse of his son. The words clearly convey strong feelings on his
part respecting the sexual abuse of children.
[115] In addition, there is no evidence of any intention to speak at the all-candidates
meeting or to pursue the issue of M. any further until the visit with Mr. Cullen when
the issue again became prominent in Mr. Lynchs mind. Nor, once Ms. Shea
informed him a few days later that he was wrong about M., did he continue to assert
his belief in M. Instead he acknowledged that he was wrong and offered an apology,
even though the form of the apology was not accepted by the plaintiff. As noted in
Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, circumstances prior
to and subsequent to publication may show malice. In this instance the
circumstances do not.
[116] In my view the plaintiff has not established that the defendant did not
honestly believe that what he said was true, that is was he either aware that it was
not true or indifferent to its truth or falsity? (Lord Diplock in Horrocks at 152) nor has
it been shown that Mr. Lynch was reckless. [R]eckless here means that the maker
of the statement has jumped to conclusions which are irrational, reached without
adequate enquiry or based on insufficient evidence,[but] this is not enough to
constitute malice if he nevertheless does believe in the truth of the statement itself.
The only kind of recklessness which destroys privilege is indifference to its truth or
falsity (Horrocks at 152-153).

Austin v. Lynch

Page 33

[117] As a result while the statement of the defendant Mr. Lynch was an act of
stupidity and without foundation I am satisfied that he believed what M. had told him.
That along with the circumstances described earlier leads me to find that the plaintiff
has not established that Mr. Lynch acted with malice.
Liability of Brousseau
[118] The allegation in the amended notice of civil claim is:
8.
The defendant Brousseau incited, assisted and/or encouraged the
defendant Lynch to publish the April 30 2013 Statements at the All
Candidates Meeting and he is therefore in fact and in law the joint publisher
of the April 30 2013 Statements.

[119] Both Mr. Lynch and Mr. Brousseau deny any conspiracy between them.
Indeed they both state that they had not met prior to the all-candidates meeting and
only met for the first time after the all-candidates meeting when Mr. Brousseau
attended at Mr. Lynchs home while canvassing for the election.
[120] There is no direct evidence that they knew each other or conspired with each
other. The plaintiff submits however that the events upon which he relies
cumulatively establish such a conspiracy. As a result he alleges that Mr. Brousseau
is jointly liable. Mr. Brousseau responded to the circumstantial evidence relied on by
the plaintiff. He confirmed that on the day before the all-candidates meeting he had
been interviewed by Jonathon Brown of Canadian First Nations Radio on April 29,
2013 and stated to him, and actually Ive, Ive, Ive found out some information
about Robins past that might be, how do you say, detrimental to his running in office
and Ill be asking those questions tomorrow night at the debate and we will see how
it goes after that.
[121] He testified that was a reference to something he had been told by Cindy
Agnew a member of his church who had worked with the plaintiff when he worked at
the Terrace Hotel. She had told him that the plaintiff had once said he had cooked
for the Queen. Mr. Brousseau interpreted that as implying that Mr. Austin had
exaggerated his background in order to obtain employment.

Austin v. Lynch

Page 34

[122] There is no evidence that Mr. Austin ever said any such thing other than the
statement of Ms. Agnew who displayed her hostility to Mr. Austin and openly stated
she did not like him. In addition her assertion was never put to Mr. Austin. I place no
weight on the allegation having any truth to it. It is only relevant to the extent it is
what Mr. Brousseau states he intended to bring up at the all candidates meeting
although why such a statement whether true or not would be detrimental to
Mr. Austin or his campaign was not explained.
[123] Mr. Brousseau also admitted that the day after the all-candidates meeting he
attended at the offices of the Terrace Standard newspaper and asked Mr. Lord what
was going on and who the person was who had spoken at the meeting. He denied
that his purpose was to find out if the paper was going to run a story about the
statement. He left understanding that the paper was not publishing anything
respecting the statement.
[124] Mr. Crampton submits that the patterns and links alleged do not exist and that
there is no proof on the balance of probabilities of any agreement between the
defendants.
Law on Evidence of Conspiracy
[125] In Ed Miller Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1994), 17 Alta L.R.
(3d) 251, 151 A.R. 1 (Q.B.), Berger J. summarized the law respecting evidence of
conspiracy as follows:
[58]
I also accept the proposition that it is rare in a case such as this that a
Plaintiff would be able to show one single contractual agreement which
expresses the purposes, means, and objectives of the civil conspiracy. It
follows that the Plaintiff is entitled to rely, inter alia, upon signed agreements
between the parties, taken together with other circumstantial evidence, to
establish the conspiracy. The Court, in my opinion, is duty-bound to consider
the whole of the evidence and its "cumulative effect."

[62]
Denials of an express agreement will not be determinative of the
result. I accept the Plaintiff's contention that actions speak louder than words
and the actions taken as revealed by the evidence constitute circumstantial
evidence from which the Court is entitled to infer the true intent and purpose

Austin v. Lynch

Page 35

of each Defendant: R. v. Canadian General Electric Co. (1976) 29 C.P.R.

(2d) 1 (Ont. H.C.).

[76]
The difficulty lies, of course, in the nature of the evidence available to
prove the agreement; rarely will direct evidence be available.
[77]
As noted by Middleton, J., in the case of R. v. McCutcheon (1916), 25
C.C.C. 310 at 311 (Ont. S.C.):
It does not happen once in a thousand times when the offence
of conspiracy is tried that anyone comes before the jury to say
that he was present at the time when the parties did conspire
together and when they agreed to carry out their unlawful
purpose. That species of evidence is hardly ever to be
adduced before a jury ...
[78]
Therefore, as stated by Rinfret, J., in Paradis v. R. (1934), 61 C.C.C.
184 at p. 186, resort must be had to circumstantial evidence:
Conspiracy, like all other crimes, may be established by
inference from the conduct of the parties. No doubt the
agreement between them is the gist of the offence, but only in
very rare cases will it be possible to prove it by direct
evidence. Ordinarily the evidence must proceed by steps. The
actual agreement must be gathered from several isolated
doings (Kenny, Outlines of Criminal Law, 13th ed., p. 294)
having possibly little or no value taken by themselves, but the
bearing of which one upon the other must be interpreted; and
their cumulative effect, properly estimated in the light of all
surrounding circumstances, may raise a presumption of
concerted purpose entitling the jury to find the existence of the
unlawful agreement. (emphasis added)

[126] The plaintiff submits that the evidence does support the inference alleged. He
submits that:
a) there is evidence of Mr. Brousseau having prior disagreements with
Mr. Austin over government school policy hence he would have a motive
to undermine Mr. Austins campaign;
b) Mr. Brousseaus statement to the reporter respecting information
detrimental to Mr. Austins campaign is relevant given that the timing was
significant as it was the very next day that Mr. Lynch made the statement.
As Mr. McConchie put it, these were isolated acts but not isolated in time;

Austin v. Lynch

Page 36

c) the explanation that what was detrimental to Mr. Austin was an alleged
statement respecting cooking for the Queen does not appear to have the
significance that Mr. Brousseau said it would. As a result the plaintiff
submits it raises concerns regarding Mr. Brousseaus evidence and his
lack of a better explanation;
d) the fact that Mr. Brousseau in fact did not raise the issue at the meeting
but Mr. Lynch did deliver a bombshell;
e) Mrs. Brousseaus thanking Mr. Lynch for being so bold;
f) Mr. Brousseaus attendance on the newspaper shortly after the allcandidates meeting to determine if they would be running a story about
what occurred at the meeting involving Mr. Lynch;
g) Mr. Brousseaus subsequent attendance on Mr. Lynch at his home; and
h) the fact that Mr. Lynch waited nine years to raise the allegation which
coincides with Mr. Brousseaus comment about something occurring at the
meeting that would be detrimental to Mr. Austin.
[127] The circumstantial evidence is suspicious. However it is only that. The
evidence falls far short of establishing the alleged conspiracy. I accept the evidence
of Mr. Brousseau. There is no evidence that Mr. Lynch and Mr. Brousseau knew
each other before the meeting or that they had any contact with each other whether
in person, by phone, by email or other means. There is no evidence that
Mr. Brousseau had any knowledge of M.s allegation to Mr. Lynch. The only
evidence that Mr. Lynch confided in anyone is his discussion with Ms. Shea and
there is no evidence she informed anyone else. While it might be considered
suspicious that Mr. Brousseau contacted the newspaper the next day I note that
Mr. Austins campaign manager did as well. Both Mr. Brousseau and Mr. Austins
campaign manager would have an interest in such but for different reasons.

Austin v. Lynch

Page 37

[128] There is no evidence how such a conspiracy would benefit Mr. Brousseau.
Given the historically low voter support for the conservative candidate in the riding
any benefit that damaged the vote in favour of Mr. Austin would have benefited the
Liberal candidate not Mr. Brousseau.
[129] Nor do I find that Mr. Brousseau evidenced hostility to Mr. Austin. My
impression is that he knows everyone does not agree with his views, that he accepts
that and does not hold it against others. While he clearly had strong views he was
not shown to lack credibility. Nor do I find that he was politically sophisticated and
likely to engage in such an alleged conspiracy.
[130] As a result I do not find evidence of a conspiracy between Mr. Lynch and
Mr. Brousseau. Mr. Brousseau was not a joint publisher and did not assist or
encourage Mr. Lynch. The claim against Mr. Brousseau is dismissed.
Apology
[131] On May 2, 2013, counsel for the plaintiff forwarded by courier a letter to
Mr. Lynch demanding that Mr. Lynch provide an unequivocal retraction and apology
in the following form:
Apology to Robin Austin
I recently made false and disparaging accusations about Robin Austin during
an all-candidates meeting held on Tuesday, April 30, 2013 in Terrace, British
Columbia.
I hereby unequivocally withdraw all of my remarks about Mr. Austin and
acknowledge that there was never any basis for any of them. My conduct on
April 30 was entirely unjustified.
I accept without reservation that Mr. Austin is a person of solid integrity who
has diligently served this community for many years. He did not deserve to be
the target of my unfounded allegations.
I sincerely apologize to Mr. Austin and his family for all of the distress and
embarrassment caused by my remarks on April 30,2013 which I deeply
regret.
Signed May 1,2013

[132] The letter urged Mr. Lynch to obtain legal advice. Mr. Lynch did so and on
May 3, 2016, Mr. Crampton emailed Mr. McConchie advising he was acting for

Austin v. Lynch

Page 38

Mr. Lynch and would respond once he had investigated the allegations in
Mr. McConchies letter. On May 7, 2013 Mr. Crampton advised Mr. McConchie by
email that he would have a letter to him on May 8, 2013.
[133] On May 8, 2013 Mr. Crampton provided the letter to Mr. McConchie in which
he advised that his client wished to express sincere regret for the hurt and pain that
he has caused your client, his wife and children who were present at the meeting
and heard his statements. It also provided the following explanation:

5.
He has belatedly investigated his source more thoroughly and again
spoken to the childs foster mother. From those discussions, he in convinced
the foster child duped him into believing her and there was no basis whatever
for her statement to him. Her accusation may have been motivated by some
other perceived wrong that she felt had been done to her, but our client is
now convinced that there was no truth whatsoever to the allegation she made
to him, that he believed and then repeated at the All Candidates Meeting.
6.
Our client has had a history of sexual abuse in his family and has
developed an almost pathological hatred for perpetrators of sexual abuse,
which, we believe, has affected his judgment. He has authorized me to tell
you that his oldest son was a victim of sexual assault by Len Harrington who
was the newscaster at the local television station and a hockey coach.
Mr. Harrington was charged with numerous counts of sexual assault and, as I
recall, about 15 years ago, had pleaded guilty, but suffered from dementia or
Alzheimers disease and died before he was sentenced. Our clients oldest
son committed suicide and he believes that the abuse was a factor in that.
7.
I wish you to know this, not because it excuses his conduct in any way
for making the unfounded and scandalous allegations against your client, but
because it shows why he did what he did. I have known him for many years.
He is 73 years old and served as the local coroner for 23 years. He has been
actively involved in the community for 49 years through the Knights of
Columbus and spent 33 years as a volunteer fireman including 19 years as a
volunteer ambulance attendant and first-aider. He successfully operated an
insurance business in Terrace for 41years. He is normally a balanced and
rational person, but he has acted irrationally and shamefully in this case. I
have spoken to two people who were in attendance at the All Candidates
meeting, both of whom have known my client for many years, and heard my
clients statements. They have both told me that they were shocked and
dismayed when he made the allegations in such a public manner and,
essentially, that it was completely out of character.
8.
The statements made by our client at the meeting were totally false
and unfounded and our client is willing to do what is necessary to try to undo
his actions and assuage the pain he has caused your client and his family by
a formal retraction and apology in whatever manner you suggest.

Austin v. Lynch

Page 39

9.
Although we really arent in a position to suggest when or how the
apology and retraction should be made, if the apology that was attached as a
Schedule to your letter of May 2 could be amended to reflect that our client
made the allegations on totally false and baseless information that he
received and accepted without any serious attempt to verify its truth, that
would be helpful.

[134] Mr. Lynchs proposed apology was:

APOLOGY AND RETRACTION
1.
On April 30, 2013, at the All Candidates Meeting at the Terrace
Pentecostal Assembly Church in Terrace, B.C., I made a false accusation
about Robin Austin and his household about incidents that allegedly occurred
in his home when Mr. Austin was a foster parent.
2.
Some time ago, I had received information from a former foster child
of Mr. Austins about incidents she said occurred there, but I did not take any
reasonable steps to verify that information, which I should have done, and
believed that the foster child was telling me the truth.
3.
Since April 30, 2013, from speaking to the childs subsequent foster
mother, I have determined that the allegations were totally false and now
believe that the foster child duped me.
4.

I unreservedly withdraw all my remarks about Mr. Austin.

5.
My comments about Mr. Austin at the All Candidates Meeting were
totally unjustified and without any merit whatsoever.
6.
I have no reason to believe that Mr. Austin is anything other than a
person of integrity who has served this community for many years to the best
of his ability.
7.
I sincerely apologize to Mr. Austin and his family for the distress, pain
and embarrassment that my comments caused them, which I deeply regret.
May 10, 2013
JAMES MUNROE LYNCH

[135] Mr. McConchie responded by email acknowledging Mr. Cramptons letter of

May 8 but advising that his client would prefer to receive the apology in the form
provided earlier. That did not occur.
Law on Apology and Discussion
[136] The absence of an apology may be considered in assessing damages. An
apology must be suitable (Lawrie v. Northern Territory News Service Pty. Ltd.
(1984), 82 F.L.R. 70 (N.T.S.C.). It must be full and frank and must be complete and

Austin v. Lynch

Page 40

unequivocal containing an admission that the charge was unfounded and made
under an entire misapprehension of the real facts. Hoste v. Victoria Times
Publishing Co. (1889), 1 B.C.R. (Pt. 2) 365 at para. 1 (S.C.). A defendant is not
excused from making an apology just because the parties cannot agree on its
content (Costello v. Random House Australia Pty. Ltd. (1999), 137 A.C.T.R. 1 (S.C.)
affirmed by the Australian Federal Court in Random House Australia Pty. Ltd. v.
Abbott, [1999] FCA 1538.
[137] Understandably the plaintiff rejected the apology proposed by Mr. Lynch
given it was not complete and unequivocal. It was misleading in the use of some
time ago, it reiterated in a more limited fashion the nature of the allegations and it in
effect spread the blame. It was also misleading in its reference to duped as no
such thing occurred. As noted earlier the nature of the information, the manner in
which it was received and its source do not support such a reference.
[138] Dupe means according to the Oxford English Dictionary to deceive, delude,
befool a person who allows himself to be deceived or deluded; one who is misled
by false representations or notions; a victim of deception. Mr. Lynch was not
duped. Firstly the assertion in his proposed apology that there were incidents was
not correct as M. did not mention incidents or for that matter a single incident. In
addition M. was not duping Mr. Lynch. Mr. Lynch after being told by M. that she had
sort of been abused asked her leading questions which elicited an allegation of
sexual abuse totally lacking in detail. There is nothing indicating any actions by M. to
dupe Mr. Lynch. In my view in proposing that inclusion in the proposed apology
Mr. Lynch was saying he was the victim and therefore not responsible. It was a
justification without merit.
[139] The apology was not sufficient.
Damages
[140] The plaintiff seeks general damages, aggravated damages and punitive
damages. He does not claim special damages.

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Page 41

[141] As a strict liability tort, damages for defamation are presumed. While the
calculation of damages for defamation is not done in accordance with any objective
measures the sum awarded should provide solatium, vindication and
compensation: (See Best v. Weatherall, 2010 BCCA 202 at para. 46).
[142] In Hill the Supreme Court of Canada addressed the issue of damage
assessment as follows at para. 187:
187
The assessment of damages in a libel case flows from a particular
confluence of the following elements: the nature and circumstances of the
publication of the libel, the nature and position of the victim of the libel, the
possible effects of the libel statement upon the life of the plaintiff, and the
actions and motivations of the defendants.

[143] In Rubin v. Ross, 2013 SKCA 21, the Court referred to Hill and the principles
applicable to the assessment of damages as follows:
[70]
In Church of Scientology, the Court endorsed the principles articulated
in Gatley on Libel and Slander, 8th ed., London: Sweet & Maxwell, 1981 at
pp. 592-593 as the basis upon which damages for libel should be assessed.
The trier of fact is entitled to take into consideration all of the circumstances,
including in particular: (i) the conduct of the plaintiff, his position and standing;
(ii) the nature of the libel; (iii) the mode and extent of publication; (iv) the
absence or refusal of any retraction or apology; and (v) the whole of the
defendant's conduct from the time when the libel was published down to the
very moment of the verdict. These general principles subsume many others,
referred to in the jurisprudence. Of particular relevance in a case such as this
one is that the capacity to cause damage increases with the defendant's
reputation (see: Lewis N. Klar, Remedies in Tort, Leanne Berry (ed.),
looseleaf, vol. 1 (Toronto: Carswell) at 6-73 citing McElroy v. Cowper Smith,
[1967] S.C.R. 425).

[76]
The Supreme Court of Canada made it clear that little is to be gained
from a detailed comparison of libel awards in other cases as each libel case
is unique. The significance of Church of Scientology, however, is the extent to
which the Court commented upon the seriousness of damage to personal
reputation caused by defamatory comments unprotected by privilege. Cory J.,
speaking for the Court, made these comments:

The consequences which flow from the publication of an injurious

false statement are invidious; (para. 165)

It will be extremely difficult to correct the impression left with viewers

that [the plaintiff] must have been guilty of unethical and illegal
conduct; (para. 165)

Austin v. Lynch

Page 42

All who read the news reports would be left with a lasting impression
that [the plaintiff] has been guilty of misconduct. It would be hard to
imagine a more difficult situation for the defamed person to overcome;
(para. 166)

A defamatory statement can seep into the crevasses of the

subconscious and lurk there ever ready to spring forth and spread its
cancerous evil. The unfortunate impression left by a libel may last a
lifetime. Seldom does the defamed person have the opportunity of
replying and correcting the record in a manner that will truly remedy
the situation. (para. 166)

As a lawyer, [the plaintiff] would have no way of knowing what

members of the public, colleagues, other lawyers and judges may
have been affected by the dramatic presentation of the allegation that
he had been instrumental in breaching an order of the court and that
he was guilty of criminal contempt; (para. 177)

He would never know who, as a result of the libellous statement, had

some lingering suspicion that he was guilty of misconduct which was
criminal in nature. He would never know who might have believed that
he was a person without integrity who would act criminally in the
performance of his duties as a Crown counsel. He could never be
certain who would accept the allegation that he was guilty of a
criminal breach of trust which was the essential thrust of the libel.
(para. 178)

[144] Similar considerations arise with respect to Mr. Austin. He is well known in the
Skeena riding as he has been the MLA for the past 11 years having been elected
three times. In addition he is trained as a social worker for whom such an allegation
is particularly damaging.
[145] I accept that Mr. Austins wife, son and daughter were significantly affected by
the accusation but Mr. Austin was less affected as he has undoubtedly has
developed a thick skin given his public position. However, I note that under crossexamination Mr. Austin lost his composure when asked about the defamatory
statement and was obviously angry showing that indeed he has been affected to a
greater degree than perhaps he has in his professional role he let on. The effect of
the defamatory statements on Mr. Austin and his family is clear. Given the nature of
the defamatory statements that is entirely understandable. The reaction of the
audience is illustrative of the seriousness of the statement.

Austin v. Lynch

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[146] The allegation of child abuse is defamatory and as noted engages the law
relating to slander per se given the imputation of a criminal offence.
[147] Even a satisfactory apology would have had limited effect on damages given
the severity of the allegation and the number of people present. As there is no
evidence of how big of an audience the television broadcast had, that republication
does not have a significant effect on damages.
[148] However, also relevant to the assessment of damages is the fact that the
plaintiff and his staff wisely limited the spread of the statement by not addressing it
generally or in the political arena. While people did raise the issue and make
inquiries they were discouraged from pursuing the matter further by the plaintiff, his
staff and family declining to discuss them.
[149] Of note is that the defendant through counsel acknowledged in a timely way
that his allegation was false.
[150] The plaintiff submits damages of $125,000 are appropriate referring to factors
such as Mr. Austins position, his public presence and the importance of the two
weeks following the meeting given the election, the crassness of the attack, the fact
it was the worst allegation possible and the plaintiffs clear entitlement to
compensation for emotional distress and upset.
[151] Mr. Crampton submitted that the plaintiff was seeking vengeance. Vengeance
implies seeking to punish or obtain retribution. However what is sought here is the
clearing of the plaintiffs name, a remedy the plaintiff is entitled to as a matter of law.
The defendant suggests damages in the range of $50,000 would be appropriate.
[152] While to some extent the plaintiffs decision to avoid public comment on the
allegation and his successful re-election indicate some level of containment of the
allegation and rejection of the allegation by the electorate, the fact remains the
allegation was made.

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Page 44

[153] The more significant awards of damages often involve aspects of a vendetta
on the part of the defendant and continued republication despite having been
informed the allegations were untrue. Such factors do not arise in this instance.
[154] The plaintiff relies on Vanderkooy v. Vanderkooy, 2013 ONSC 4796. In
Vanderkooy the plaintiff was accused of child molestation. He had a good reputation
before the allegations and after was shunned by members of his family and had to
face the allegations in public in his close-knit religious community. The Court noted
at para. 217 that [a]llegations of sexual abuse do not die easily and probably never
will. General damages of $125,000 were awarded. I note however that in
Vanderkooy the allegations were not withdrawn, an apology was not made and the
defendants were found to have been actuated by malice. In addition the allegations
were disseminated to a greater extent than here.
[155] In Prokorym v. Turpin, 2014 BCSC 1893, the defendant alleged the plaintiff
boat broker was a convicted sex offender. The plaintiffs employer responded quickly
to other companies in the industry and the Court found that there would be negligible
if any impact on the plaintiffs life and reputation. However the circumstances and
the nature of the defamation were egregious. At trial the defendant apologized and
expressed remorse. The Court cited Hill and in particular at para. 27:
[27]
In an earlier passage in the Hill decision, at para. 166, the court made
reference to a feature that is common to many defamation cases:
... A defamatory statement can seep into the crevasses of the
subconscious and lurk there ever ready to spring forth and
spread its cancerous evil. The unfortunate impression left by a
libel may last a lifetime. Seldom does the defamed person
have the opportunity of replying and correcting the record in a
manner that will truly remedy the situation. ...

[156] The Court noted that lack of a timely retraction or apology and as well the
initiation of a criminal investigation by the plaintiff placed the defendant at extra
jeopardy in addition to the civil action. General damages of $30,000 were awarded.
The Court noted those damages included the spiteful conduct of the defendant and
its effect on the plaintiffs feelings over and above the damage from the defamatory

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publication itself hence aggravated damages were not made as a separate award.
Since malice was found punitive damages of $10,000 were also awarded.
[157] The granting of judgment in a defamation suit in and of itself restores the
reputation of the defamed individual. However, an award of damages supports and
gives substance to that finding.
[158] The immediate reply and denial of the plaintiff at the meeting appears to have
mitigated the impact of the allegation and the audience response indicated that they
accepted the plaintiffs denial and rejected the allegation of the defendant Mr. Lynch.
I accept the retraction and acknowledgment of Mr. Lynch at trial as genuine.
[159] Taking into account the position of the plaintiff, the egregious allegation, the
early acknowledgment of the allegations falseness, the impact of the allegations on
the plaintiff and their serious and damaging nature I award general damages of
$75,000 payable by Mr. Lynch.
Punitive and Aggravated Damages
[160] Aggravated damages were described by Cory J. in Hill as follows:
188
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
libellous statement. The nature of these damages was aptly described by
Robins J.A. in Walker v. CFTO Ltd., supra, in these words at p. 111:
Where the defendant is guilty of insulting, high-handed,
spiteful, malicious or oppressive conduct which increases the
mental distress -- the humiliation, indignation, anxiety, grief,
fear and the like -- suffered by the plaintiff as a result of being
defamed, the plaintiff may be entitled to what has come to be
known as "aggravated damages".
189
These damages take into account the additional harm caused to the
plaintiffs feelings by the defendant's outrageous and malicious conduct. Like
general or special damages, they are compensatory in nature. Their
assessment requires consideration by the jury of the entire conduct of the
defendant prior to the publication of the libel and continuing through to the
conclusion of the trial. They represent the expression of natural indignation of
right-thinking people arising from the malicious conduct of the defendant.
190
If aggravated damages are to be awarded, there must be a finding
that the defendant was motivated by actual malice, which increased the injury

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to the plaintiff, either by spreading further afield the damage to the reputation
of the plaintiff, or by increasing the mental distress and humiliation of the
plaintiff. See, for example, Walker v. CFTO Ltd., supra, at p.111; Vogel,
supra, at p. 178; Kerr v. Conlogue (1992), 65 B.C.L.R. (2d) 70 (S.C.), at
p. 93; and Cassell & Co. v. Broome, supra, at pp. 825-26. The malice may be
established by intrinsic evidence derived from the libellous statement itself
and the circumstances of its publication, or by extrinsic evidence pertaining to
the surrounding circumstances which demonstrate that the defendant was
motivated by an unjustifiable intention to injure the plaintiff. See Taylor v.
Despard, supra, at p. 975.
191
There are a number of factors that a jury may properly take into
account in assessing aggravated damages. For example, was there a
withdrawal of the libellous statement made by the defendants and an apology
tendered? If there was, this may go far to establishing that there was no
malicious conduct on the part of the defendant warranting an award of
aggravated damages. The jury may also consider whether there was a
repetition of the libel, conduct that was calculated to deter the plaintiff from
proceeding with the libel action, a prolonged and hostile cross-examination of
the plaintiff or a plea of justification which the defendant knew was bound to
fail. The general manner in which the defendant presented its case is also
relevant. Further, it is appropriate for a jury to consider the conduct of the
defendant at the time of the publication of the libel. For example, was it
clearly aimed at obtaining the widest possible publicity in circumstances that
were the most adverse possible to the plaintiff?

[161] As I have not found the defendant acted with malice aggravated damages are
not awarded.
[162] With respect to punitive damages they are intended to compensate for
outrageous and egregious conduct. In my view the conduct of the Mr. Lynch was
incomprehensible and arose from incredulity and stupidity and a failure to rationally
consider what M. had told him. Punitive damages are awarded where general
damages do not sufficiently punish and deter. Given the circumstances of this case I
am of the view that punitive damages are not appropriate and that in any event the
general damages sufficiently address deterrence and punishment.
Costs
[163] If the parties are unable to resolve costs they may file written submissions
within 60 days of the date of these reasons.
Punnett J.