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IN THE SUPREME COURT OF BRITISH COLUMBIA
Date: 20060301
Docket: 05-2337 Registry: Victoria Between: WeGo Kayaking Ltd. and Plaintiffs And Thomas Sewid, Kathleen Westergaard and Defendants
Before: The Honourable Mr. Justice Metzger Reasons for Judgment (In Chambers)
[1] The plaintiffs seek a permanent injunction against the defendants to stop an ongoing libel. They also seek general damages and costs. They have abandoned their claim for punitive damages. The plaintiffs have discontinued against the defendant Telus Communications Inc. [2] Neither defendant appeared for this hearing although they were properly served with the plaintiffs' notice of motion. Each defendant did file a statement of defence. FACTS [3] The plaintiffs Northern Lights Expeditions Ltd. ("Northern Lights") and WeGo Kayaking Ltd. ("WeGo") are adventure travel companies that operate kayak tours in the area of the Johnstone Strait and Broughton Archipelago off the west coast of British Columbia. The defendant Thomas Sewid operates a tour and water taxi service in the area. [4] The action arises out of material titled a "Kayak Companies Review" that the plaintiffs allege the defendants published on a website located at www.villageisland.com . The website appears to advertise Thomas Sewid's water taxi service and tours, and provides information about visiting the area. [5] The material complained of is as reproduced below: Bad Kayak Companies These are the companies that are not looked at favourably. They are ones that have done things to try and make First Nations become token Indians who are only needed as items of attraction or convenience. There may be some environmental concerns with their operating practices as well. Be very cautious when choosing who you want to travel into the Johnstone Strait, Broughton Archipelago region. While searching on the web, watch for who comes up first and how they manage this. They may need to concentrate on attracting new customers because past clients have given them poor recommendations and are not booking return trips..
[6] The defendant Thomas Sewid's name appears at the end of this material. [7] The plaintiffs' evidence is that the allegedly defamatory material has been published on the website since February 2005. The impugned material remains on the website, except that the name of the plaintiff "Northern Lights Expeditions Ltd." has been changed to "Northern Lights Exploitations Ltd." [8] The defendant Thomas Sewid's views of the plaintiff WeGo Kayaking were also published in a local newspaper in May 2005. That statement was retracted and an apology was printed after the plaintiffs provided information to the newspaper indicating the statement was factually incorrect. [9] I am satisfied that Thomas Sewid wrote the "Kayak Companies Review". I am further satisfied that the defendant Kathleen Westergaard is Mr. Sewid's partner. She owns, maintains and controls the Village Island website, and publishes Mr. Sewid's opinions on the website. [10] The Internet service provider has agreed to remove the impugned material should an injunction be granted. [11] The plaintiffs compete against each other, as well as with Mr. Sewid and other kayak companies, for customers. Most customers visit the Internet in order to determine what kayak services are offered in the area. As a result, the plaintiffs depend on the Internet as a significant source of new customers. [12] The defendants' website has one of the top search engine rankings for potential visitors looking for information on sea kayak tours in the area in which the plaintiffs operate. Anyone seeking Internet information about Northern Lights or sea kayaking will almost certainly find the defendants' website with the allegedly defamatory material. [13] Internet bookings for Northern Lights dropped from 111 in 2003 and 112 in 2004, to 67 in 2005. Not all of the company's business is obtained through the Internet. I accept that favourable "word of mouth" recommendations and returning clients are an essential component of all kayak business success. [14] In 2005, Northern Lights reduced its customer capacity to 290 in an effort to keep its costs down by running at full capacity. Full capacity would have been 281 customers. They only had 230. Northern Lights claims its net loss in profit for 2005 was US$68,850. [15] WeGo operated in 2002, 2003, 2004 and 2005. The total trips sold per year increased by 55% in 2003 and 62% in 2004. In 2005 the total number of trips decreased by 18%. WeGo estimates its lost profit for 2005 is $30,000. ANALYSIS [16] An action for defamation requires the court to balance the competing principles of freedom of expression and the protection of reputation. [17] A publication that tends to lower a person’s reputation in the estimation of reasonable persons, or to expose a person to hatred, ridicule or contempt is defamatory: Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 at 24 (Botiuk). Whether the publication is defamatory will be determined from the ordinary meaning of the words, or from the surrounding circumstances: Botiuk, supra. [18] A published defamatory statement in writing constitutes libel. In an action for libel, the plaintiff must prove that the impugned statements are defamatory. The plaintiff need not prove that the statements resulted in actual loss; damage is presumed: see Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 167 (Hill). [19] In this case, the words used are defamatory in their ordinary meaning. The plaintiffs are labelled as "Bad Kayak Companies". The publication states the "bad kayak companies" treat First Nations persons as "token Indians who are only needed as items of attraction or convenience" and that "there may be some environmental concerns with their operating practices". The statements imply that the plaintiffs do not respect First Nations persons and culture, and have environmentally unsound business practices. The words go on to say: ... Be very cautious when choosing who you want to travel into the Johnstone Strait, Broughton Archipelago region. While searching on the web, watch for who comes up first and how they mange this. They may need to concentrate on attracting new customers because past clients have given them poor recommendations and are not booking return trips. [20] I find that the material would serve to lower the plaintiffs' business reputation in the eyes of right thinking members of society and, in particular, in the eyes of individuals seeking to book a kayak trip in the area. [21] No one appeared for the defendants at the hearing. Their statements of defence do not set out any of the defences to defamation: justification, fair comment or qualified privilege. Even if the defence filed by Kathleen Westergaard can be construed as pleading fair comment, there was no evidence adduced to indicate that the statements were "fair" or made on a matter of public interest. Neither was there any evidence that the statements were true. [22] I am satisfied the plaintiffs have proved that the defendants published the material or caused it to be published, and that the statements are defamatory in their ordinary sense. INJUNCTION [23] The impugned material continues to be published by the defendants. I am satisfied the plaintiffs will suffer irreparable damage if an injunction is not granted as the plaintiffs rely on goodwill and client referrals for the continued prosperity of their businesses. Lost goodwill may never be recovered nor adequately compensated for by damages. I find that an injunction is justified in this case to prevent further damage to the plaintiffs' reputations. DAMAGES [24] In a defamation action, general damages are intended to compensate a company for harm done to corporate goodwill where, as in this case, the libel was calculated to injure the company's reputation and affect its business: see Lee v. Lee, 2000 BCSC 1770. Each libel case is unique and the assessment of damages flows from the circumstances of the particular case: Hill, supra at para. 190; Botiuk, supra at para. 105. [25] In assessing general damages, the following factors should be taken into account: the plaintiff’s conduct, position and standing; the nature of the libel; the mode and extent of publication; the absence of any apology or retraction; and the defendant’s conduct from the time of publication to the end of trial: Gatley on Libel and Slander, 8 th ed., cited with approval in Hill, supra at para. 185. [26] The defamation here has been organized and ongoing since February 2005. The defamatory statement was published on the Internet and, as a result, was widely disseminated. The reputations of the plaintiffs were known to the defendants and the material was published in order to injure their reputations. The defendants have not offered an apology or retracted the statement. The plaintiffs require credible reputations in the kayaking community and the travel industry in order to sustain their businesses. DECISION [27] I award each plaintiff $60,000 in general damages. The defendants are jointly liable for those damages. There will be no award for special damages or punitive damages as I consider the general damage award to adequately compensate the plaintiffs. [28] There will be a permanent injunction restraining the defendants from publishing any defamatory comments about the plaintiffs, or their principals, in any form of publication, including the Internet. [29] The plaintiffs are awarded their costs at level three. “R.W. Metzger, J.”
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