L.E. v. W.P., 1998 CanLII 15069 (BC SC)
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May 6, 1998
IN THE SUPREME COURT OF BRITISH COLUMBIA
W.P., D.P., and
May 6, 1998
IN THE SUPREME COURT OF BRITISH COLUMBIA
REASONS FOR JUDGMENT
HONOURABLE MR. JUSTICE COLLVER
Counsel for L.E.: Delwen Stander
Counsel for D.P., W.P.,
and M.P.: Rose A. Bender
Place and Dates of Trial: Chilliwack, B.C.
March 16,17,18,19,20 and 25, 1998
 [L.E.] claims damages for defamatory statements which
he attributes to the defendants, [W. ("B.") P.],
[D.P.] and [M.P.], to the effect that he, L.E., sexually
assaulted D.P. on May 6, 1995.
 In a separate action [D.P.] claims damages from [L.E.] for
the alleged sexual assault. The two actions were ordered to
be tried together.
2. THE INCIDENT
 [L.] and [P.E.] have known [B.] and [D.P.] for almost
twenty years. [M.P.], now twenty years old, is the [P.]s'
 The [E.]s live in Sardis and the [P.]s live in North
Vancouver. Their families' friendship stems from ownership of
neighbouring vacation cabins at Missezula Lake, near Princeton.
 More than ten years ago the [E.]s introduced two other
couples to the [P.]s: [D.] and [B.S.], who live in Surrey; and
[J.] and [L.H.], who live at Alger, Washington. The [H.]s also
own a vacation cabin at Missezula Lake.
 [L.E.] met [D.S.] in 1980, when both men were volunteer
firefighters. [L.E.] is a paramedic, employed by the B.C.
Ambulance Service. [D.S.] is a professional firefighter.
 [P.E.] and [L.H.] have been "best friends" since their
 For years, the [E.], [P.], [H.] and [S.] families visited
back and forth, occasionally holidaying together. However,
during a weekend visit at the [H.]s' home on May 6, 1995,
[L.E.] and [D.P.] were involved in an incident which has
strained the four couples' friendships and threatened the [E.]
and [P.] marriages.
 The [E.]s, [P.]s and [S.]s were the [H.]s' overnight
guests. After watching a television movie, the men went out to
enjoy the back yard hot tub, and were soon joined by [D.P.].
The hot tub sits on a large cedar deck at the back of the
[H.]s' home, and is less than twenty feet from the kitchen
door. The home is in a quiet neigbourhood.
 Because no one intended to drive home that night there was
no reason for anyone to keep track of drinks. When glasses were
empty the hosts and the guests simply took turns making and
serving the next round.
 [B.P.] drank enough that he soon fell asleep in the hot
tub. He was removed from the tub and placed on a nearby lounge
chair, where he was still sleeping when [J.H.] and [D.S.]
called it a night. [H.] and [S.] left [L.E.] and [D.P.] sitting
in the hot tub only after [D.P.] assured [H.] and [S.] that she
would not need their help in getting her husband in to bed.
 There are remarkable differences between [L.E.]'s and
[D.P.]'s versions of what next happened.
 [L.E.] testified that he was flirting with [D.P.] even
before [J.H.] and [D.S.] left the hot tub ([J.H.] and [D.S.]
confirmed that in their testimony), and that they continued to
talk after they had the hot tub to themselves. They then began
to kiss and, although [E.] conceded that [D.P.] protested by
saying, "No [L.], we shouldn't be doing this", the kissing
continued and became passionate, with mutual fondling.
 [E.] testified that after he and [D.P.] removed their swim
suits they had "vigorous" intercourse, interrupted by fellatio
(at [D.P.]'s request, [E.] claimed). Not long after intercouse
resumed, [B.P.] stirred. [L.E.] and [D.P.] had their swim
suits on again when [B.P.] stood up and returned to the hot
tub. [D.P.] then left the two men and went into the house.
 [E.] thought that the incident lasted about 30 minutes.
After staying in the hot tub with [B.P.] for a few more minutes
he took him into the house, poured him another drink, sat and
talked for a while, then helped him to bed.
 [D.P.] agreed that the sexual activity ended when her
husband awoke, but claimed it was not consensual. She said that
after she and [E.] were alone in the tub [E.] looked towards
the house and, after "adjusting" his swim suit, came across the
tub and began kissing her. At that point she hit the back of
her head on the tub and pushed [E.] away, protesting, "No,
[L.], [P.] is my friend." When [E.] continued to kiss her she
claims that she then said, "Please [L.], stop, this will ruin
 [D.P.] testified that when one of her bathing suit straps
fell during the struggle she removed both arms from the suit to
free them. She said that [E.] then pulled her hand down to his
penis (he was wearing a condom, she said), before grasping and
submerging her head and forcing his penis into her mouth. She
claimed that he then lifted her to a hot tub seat, pulled her
swim suit to her knees, and grabbed at her "crotch". Finding it
difficult to move she kicked her feet out of her swim suit. At
this point she saw a surprised look on [E.]'s face as he
quickly moved to the opposite side of the tub. [D.P.] pulled on
her swim suit, ran to the house, vomited off the side of the
deck, then went inside and to bed.
 [D.P.] testified that, although she remembered [E.]
helping her husband into bed, she did not mention the incident
to her husband either then or the next day.
 She testified that on Monday morning, after her husband
had left for work and her children were at school, [L.E.]
phoned and asked her whether [B.P.] had seen anything at the
[H.]s'. When she said that she didn't think so, [E.] told her
to tell her husband that it was "just a kiss".
 After [E.]'s call, [D.P.] phoned the office of her family
physician, Dr. David Brooks. She was unable to reach Dr. Brooks
until later that day, and the doctor's record of the call
mentions that [D.P.] complained of rape "by a friend". Dr.
Brooks examined [D.P.] two days later.
 During their Monday telephone conversation Dr. Brooks
suggested that [D.P.] call the police. However, when she tried
to report the incident to the North Vancouver R.C.M.P. office
her complaint was refused because the alleged assault had
happened in Washington State. She was, however, given the
number for WAVAW (Women Against Violence Against Women). She
phoned the WAVAW office and was apparently given advice about
both recording her experience and obtaining counselling.
 When he examined her on Wednesday, Dr. Brooks observed a
contusion (bump) at the back of [D.P.]'s head, bruising on her
left shoulder and wrist, and a slight abrasion on her vaginal
entrance. He reported that those findings were consistent with
[D.P.]'s complaint of sexual assault.
 During that week [D.P.] said nothing when her husband
asked her whether anything happened when she was in the hot tub
with [L.E.]. However, [B.P.] became suspicious during a brief
visit to [L.E.]'s home at the end of the week. He testified
that [E.] stepped back in surprise when [P.] expressed the hope
that [E.] had not taken advantage of [D.] at the [H.]s' while
he ([P.]) was "indisposed". Thinking that something was wrong,
[B.P.] later embarked upon regular and persistent questioning
of his "very evasive" wife.
 Early on the following Monday, when [B.P.] asked his wife
what had happened with [E.] she was at first unwilling to
discuss the matter. However, later that day he told her that
she had been talking in her sleep (which was not true), and she
admitted that [E.] had made a "pass" at her. Not surprisingly,
[B.P.] was upset and, when he was examining a telephone bill a
few days later, noted that on May 15th a call of 10 minutes was
placed to the [E.]s' home at 8:25 a.m. However, further
questioning brought no response from his wife other than that
there was "nothing to it".
 When [B.P.] saw [L.E.] at Missezula Lake on the May 1995
long weekend he did not have an opportunity to question him
further, and before [P.] and [E.] went on a men's bike trip
early in the next month [D.P.] had still said nothing more
about the incident at the [H.]s'.
 However, on the June bike trip [B.P.] again asked [L.E.]
about the incident. This time [E.] apologized, saying "it
should not of happened". [B.P.] testified that [E.] was clearly
uncomfortable, but that he did not then push him for details.
The next day he asked [E.] if [D.P.] had said "No", and [E.]
said that she had.
 [D.P.]'s substantial disclosure to her husband finally
came a few days after the men's bike trip.
 After first telling her husband that she had something to
say to him in private, she told him that [E.] had raped her at
the [H.]s'. She testified that she was hesitant about using the
term "rape" because she had not been penetrated. She told her
husband that [E.] had been forcefully and sexually aggressive
and had tried to enter her.
 She also told her husband that [E.] had forced her hand to
his penis, and that [E.] was wearing a condom. She did not,
however, mention either the physical findings which Dr. Brooks
had observed nor anything about the alleged fellatio.
4. THE AFTERMATH OF DISCLOSURE
 [D.P.] testified that she made her May 15th phone call to
[L.E.] because, having told her husband that [E.] had made an
"uncomfortable pass" at her, she thought [E.] should be aware
of that before the men's bike trip.
 After [D.P.] made the assault allegations to her husband,
[B.P.] called [L.E.] at work and at home. [E.] testified that
[B.P.] asked him if he knew what "rape" meant, and that [P.]
called him "sick". These calls prompted [E.] to admit the
incident to [P.E.].
 I need not detail the many succeeding telephone contacts
between the two households other than to mention that, during
one of the calls when both [L.] and [P.E.] were talking to
[B.P.], [P.E.] suggested that [B.P.] ask his wife if [D.P.]
remembered the comment, "I want you in my mouth." This was the
first time that [B.P.] had heard about oral sex, and [D.P.]
testified that her husband's ensuing questions about this
aspect of the incident made her physically ill.
 If things had gone no further the [E.]s and the [P.]s
might very well have attributed the incident to too much
alcohol, gone about mending their damaged marriages, and then
carried on. But that was not to be.
 Clearly, the genesis of the defamation action was the
[P.]s' decision to recount the incident to the [H.]s (on July
22, 1995). Concerned about likely discomfort if they ran into
the [E.]s at a forthcoming horseshoe tournament at Missezula
Lake, the [P.]s visited the [H.]s at their cabin, and [D.P.]
told the [H.]s that [E.] had assaulted her at the [H.]s' home.
[L.H.] apparently agreed that [D.P.] should speak to [P.E.]
that day, but when [D.P.] went to the [E.]s' cabin ([L.H.] was
already there) she could not discuss the matter since the
[E.]s' daughter was sitting at the kitchen table.
 The disclosure to the [H.]s led to a succession of
difficult and unsatisfactory phone calls between the [E.]s and
the [P.]s. Although no one but the [H.]s had been told about
the incident by the end of the 1995 summer, neither the [E.]s
nor the [P.]s were having an easy time. Both couples wisely
 Beginning in early November 1995, the [P.]s made thirteen
visits (joint) to a psychiatrist, Dr. James Miles, who
diagnosed [D.P.] as suffering from a "major Depressive
Disorder, Recurrent - 296.3x - moderate". The diagnosis of
[B.P.]'s condition was similar, but of short-term duration: "a
major Depressive disorder - Single Episode - 292.2x - mild".
Dr. Miles also believed that [D.P.] had some residual symptoms
of a Post Traumatic Stress Disorder.
 Dr. Miles concluded his report as follows:
The sexual assault had a major impact on Mrs. [P.]
and was a major source of psychological pain and
distress to her, her husband and her children. I
cannot say with certainty that her depressive illness
was a consequence of the sexual assault, although
they are temporally related. Mrs. [P.] has a
propensity to depressive illness, and the sexual
assault in all probability precipitated the major
depressive episode. She is basically a healthy and
very functional person, and I think the prognosis for
complete recovery from the assault is excellent.
Mrs. [P.]'s behaviour since her sexual assault has
been typical of sexual assault victims. Her feelings
of shame, humiliation and anger are very common.
Feelings of helplessness and dependency are frequent,
and Mrs. [P.]'s situation was complicated by her
shaky self-esteem and the not uncommon skepticism of
her husband, and her very depressed mood which led
her to delay reporting the assault.
 I do not quote the conclusions of Dr. Miles merely to
emphasize [D.P.]'s state. Because the [P.]s were eventually
unable to keep their marital misery to themselves, the
involvement of Dr. Miles is important for another reason.
 Dr. Miles advised [D.P.] that, given the rumours
circulating at Missezula Lake (ironically, they were initiated
by the [P.]s), she should parry inquiries by stating that while
she claimed assault, [L.E.] claimed consent, and that they had
reached an impasse. While that would have been good advice for
both sides, the situation became critical the next spring when,
following some remarkable developments, the [E.] and [P.]
children became involved in the dispute.
 On her psychiatrist's advice, [D.P.] reported the incident
at the [H.]s' to the Skagit County Sheriff's office on February
1, 1996. Five days later she was interviewed by Detective Will
Reichardt. The detective testified that during this meeting
[D.P.] stated that, while she did not want [E.] charged, she
wanted the [H.]s and [L.E.] to be advised that she had made a
complaint about the May 6, 1995 incident.
 Detective Reichardt interviewed the [H.]s in their home on
February 8, 1996, and interviewed [L.E.] (by telephone) the
following day. Aside from the officer's comments about the
[H.]'s partiality towards [L.E.]'s version of events, the only
other aspect of the Skagit County Sheriff's Office involvement
which I need mention was [L.E.]'s offer to undergo a polygraph
test. The detective declined to arrange the test, in light of
his decision that the case should simply be "cleared".
 Nevertheless, [L.E.] underwent (and claims to have passed)
a polygraph test on February 25, 1996. The test was
administered by an examiner chosen from a list provided by the
[P.]s. Although the [P.]s had at first said that they would
retract the assault allegations and pay for the polygraph test
if [E.] passed it, they later declined to do either, ostensibly
because they were not invited to participate by approving the
questions put by the examiner.
 Things festered until the May 1996 long weekend, when the
couples' children became involved in the dispute. While [P.E.]
and [L.H.] were out walking, the [E.]s' daughter (then 15 years
old) tearfully approached [P.E.] about [M.P.]'s accusation that
[L.E.] had raped her mother. That initiated an immediate but
unsatisfactory confrontation between the [E.]s and the [P.]s.
Later, it also resulted in [D.P.] alleging a threat (Criminal
Code proceedings were stayed by the Crown). Since "word" (of
the alleged "rape") was out, [L.E.] also decided to bare his
behaviour to his parents, who are permanent residents at
 On May 30, 1996, the [E.]s instructed counsel to demand an
apology for and retraction of defamatory statements made about
[L.E.], together with a list of the persons to whom the
statements had been made. There was no reply, and [L.E.]
brought his defamation action on June 12, 1996. [D.P.] sued for
damages for sexual assault on July 2, 1996.
 Although the rape allegations have significantly affected
[L.E.]'s personal life, neither the incident itself nor the
subsequent proceedings have affected his income.
 In addition to her personal suffering, [D.P.] has also
missed considerable work (as a dental hygienist). After her
disclosure she managed a job change which allows her to deal
only with infant patients.
5. WEIGHING THE EVIDENCE
 [D.P.]'s timely contact with Dr. Brooks is consistent with
her assault complaint, since the prospect of the bruising and
vaginal abrasion being equally attributable to "vigorous"
consensual sexual activity is only a "possibility" (conceded by
Dr. Brooks in his testimony).
 Furthermore, the proximity of [D.P.]'s sleeping husband
does not, by itself, detract from her later complaint, since
the callousness of [E.]'s betrayal of [B.P.]'s friendship
renders the latter's nearness to the incident almost
incidental. Indeed, given the recognized factors which often
prevent or discourage sexual assault victims from struggling,
protesting, or promptly complaining, [D.P.]'s failure to resist
[E.], to scream for help, or to immediately tell her husband do
not, by themselves, weaken her testimony.
 However, in addition to the [H.]s' stated skepticism about
[D.P.]'s allegations and [L.E.]'s sworn insistence that the
mentioned activities were consensual, there are four other
aspects of this troubling case which must be addressed. They
involve the following: the positions of [L.E.] and [D.P.] in
the hot tub; the shedding of swim suits; [L.E.]'s alleged use
of a condom; and [L.E.]'s history and his actions after the
revelation of his misbehaviour.
 First, [D.P.]'s description of [E.]'s position and the
duration of the sexual activity are inconsistent with the
testimony of others. She claimed that the assault commenced
with [E.]'s move to her side immediately after [J.H.] and
[D.S.] left the tub. However, [H.] and [S.] testified that [E.]
was sitting beside [D.P.] for some time before they left the
hot tub. Furthermore, during cross-examination [D.P.] was
unable to account for at least half of the time which elapsed
between [H.]'s and [S.]s' departure and [B.P.]'s re-entry into
the hot tub after she and [E.] had hurriedly put on their swim
 More significant, it was [D.P.]'s flirting (which she
denied) as she sat beside [L.E.] that concerned both [H.] and
[S.] as they left the hot tub. I do not accept [D.P.]'s
evidence that, as soon as [H.] and [S.] were gone, [L.E.]
"scooted" (the term she later used in her complaint to Det.
Reichardt) to her side of the tub.
 Second, [D.P.]'s description of why and how she eventually
freed her other arm and leg from her swim suit is more
consistent with simply shedding the swim suit than it is with
her claim that she could thus better fend off [E.]. In other
words, I do not accept her claim that she "removed" her hand
from the remaining strap so that she could move that hand, and
later "moved" one leg from her suit to keep her balance as she
resisted [E.]'s advances.
 Third, [L.E.]'s protest that he did not use a condom is
more likely than [D.P.]'s claim that he did. If the activities
began as [D.P.] claims, [E.] would have had to both rid himself
of his swim trunks and put on a condom before he "scooted"
(again, her term) to her side of the tub.
 Moreover, whether or not [L.E.]'s actions were
"premeditated" ([D.P.]'s description to her treating
psychiatrist), and whether or not he was so aroused by a
contemplated advance that he had already experienced an
erection, removal of his swim suit and the underwater donning
of a condom would undoubtedly have required more than the swim
suit "adjustment" which [D.P.] described.
 In this regard, there is no basis for finding that [E.]
would have been carrying a condom when he entered the hot tub
with [B.P.], [J.H.] and [D.S.], absent evidence either that he
anticipated its use because he had discussed possible sexual
activity with someone other than his wife (who testified that
he has had a vasectomy), or that he is a person who carries
condoms as a matter of course. For that reason I also discount
[B.P.]'s snide observation about the "rubber gloves"
precautions which [E.] allegedly takes in performing occasional
neighbourly first aid duties at Missezula Lake. ([J.H.]
described [E.] as a "white knight", which reflects the
occasional calls upon [E.]'s training and skills when campers
need his emergency medical help.)
 Finally, I note both [L.E.]'s reaction when he became
aware of [D.P.]'s revelations to her husband, and the support
he then received from his wife and his friends. [E.] confessed
his infidelity to his wife as soon as he heard about what
[D.P.] was alleging. While the [H.]s and [D.S.] are obviously
more sympathetic to [E.]'s admission of indiscretion than they
are to [D.P.]'s allegation of assault, I am satisfied that it
would have been overwhelmingly out of character for [E.] to
have assaulted a family friend (even though it must be
acknowledged that he betrayed friendship itself).
 While no weight can be ascribed to [E.]'s "passing" the
polygraph test, his willingness (confirmed by the [P.]s) to
undergo that procedure is at least consistent with his
assertion that his indiscretion involved consensual activity.
Indeed, it is probably safer to conclude, on the basis of what
I observed during his testimony and what was said about him by
others, that it is doubtful that [L.E.] could have enjoyed a
post-hot tub drink with [B.P.] (confirmed by [B.P.]) if he had
sexually assaulted [P.]'s wife only moments before.
 Perceptions of what happened have undoubtedly been
affected by the consumption of alcohol. However, in balancing
probabilities I conclude that [L.E.] did not sexually assault
6. THE DEFAMATION CLAIM
 In his submissions on defamation, [L.E.]'s counsel
referred extensively to Raymond E. Brown, The Law of Defamation
in Canada, 2d ed. (Toronto: Carswell, 1994), and the following
findings reflect that authority.
 [D.P.]'s assertion that she was sexually assaulted by
[L.E.] is a false statement to the discredit of [L.E.]. It is,
of course, a particularly damaging statement since it alleges
the commission of a criminal act.
 [L.E.]'s reputation has been injured by communication of
the false statement to persons (the [H.]s and [A.]s) at
Missezula Lake. There, his friendships and associations have
undoubtedly been affected by that communication.
 He has not, however, proved any impact upon his reputation
at work. He earned as much or more in the two years following
the defamation as he earned before, and decisions to turn down
extra duties seem but a general reflection of his dilemma.
 In light of the above finding, [L.E.]'s damages will be
limited to the consequences which the communication of the
false statement have had for his personal reputation in the
community at large. In the circumstances of this case, the
community at large is Missezula Lake.
 Although those jointly responsible for publication of the
defamatory statements are liable for the harm to [L.E.]'s
reputation, the award will be made only against the defendants
[W.] and [D.P.]. [M.P.]'s repetition of her parents' slander to
two others does not warrant an award against her, for two
 First, [M.P.]'s statements to her friend, [C.A.], were
purely a response to [C.A.]'s comment about hearing that
"something went on". In her examination for discovery [M.P.]
stated that she replied to [A.]'s inquiry as follows: "...like
I don't know, it's something like rape". Counsel's request for
clarification of that statement then prompted the following: "I
said I don't know exactly what it was, it's something like
rape, and we left it at that." Obviously, [M.P.]'s friend heard
rumours, and simply sought clarification (which she hardly
got). That, in my view, should not expose [M.P.] to damages.
 Second, [M.P.] was undoubtedly wounded by gossip about her
mother. Although [M.P.] did not testify, the portions of her
examination for discovery which were read in at the trial
reveal enough about her for me to conclude that while she
confronted [L.E.]'s daughter with an accusation to the effect
that [E.] was a rapist, it would be harsh to saddle her with
consequences of simply responding to rumours to which the [E.]
and [P.] children should never have been exposed.
 In their Statement of Defence the [P.]s plead both fair
comment and qualified privilege. Neither defence is available
 With respect to belief and motive, [D.P.]'s allegation of
sexual assault has not been proven, and it is no excuse for
[B.P.] simply to claim that he was repeating what another
person (his spouse) had told him: Boychuk v. Korzenowski,
1924 CanLII 205 (SK CA),  2 W.W.R. 750 (Sask. C.A.).
 Privilege cannot be claimed unless it can reasonably be
concluded that persons of ordinary intelligence and moral
principle, or the great majority of right-minded persons, would
have considered it a duty to communicate the information to
those to whom the defamatory comments were published: Brown,
The Law of Defamation in Canada, supra, at p.662. Whether or
not the communications to doctors or to Detective Reichardt
fall within this category of comment, the [P.]s' decision to
speak to the [H.]s and others at Missezula Lake does not.
 Although damages are presumed where slander occurs, I am
required to consider the character and conduct of both [L.E.]
and the [P.]s in assessing general damages (special damages of
$2,388.38 were also claimed). My principal concern is for the
effect which the [P.]s' statements have had on [L.E.]'s
standing in the Missezula Lake community, and on his sense of
dignity and self esteem.
 [L.E.] put his sense of personal dignity and self esteem
on the line at Alger, Washington, when he both broke his
marriage vows and betrayed his friendship with [B.P.]. He seeks
general damages of $50,000, but the award must be commensurate
with his injury and the modest circumstances of the defendants.
The sum of $15,000, to be paid by [W.P.] and [D.P.], will
compensate [L.E.] for his loss of reputation and community
standing. In assessing damages I considered the following cases
cited by counsel: Spong v. Westpres Publications Ltd. (1982), 2
C.C.E.L.228 (B.C.S.C.), aff'd (24 October 1984), Vancouver
CA821278 (B.C.C.A.); R.E.G. v. D.P. (8 May 1996), Vancouver
C932631 (B.C.S.C.); Pangilinan v. Chaves (1988), 54 Man.R.(2d)
163 (Q.B.), aff'd (1988), 47 C.R.R. 371 (Man. C.A.). Given the
risks (for himself and [D.P.]) inherent in acting as he did, I
decline to consider the prospect of taking into account
[L.E.]'s possibly wounded feelings.
 With respect to the claim for punitive damages, only
statements which are high-handed, outrageous, and offensive to
the court's sense of decency can attract an award which is
intended to discourage the defendants or others from defaming
their fellow citizens. Although [D.P.]'s allegations failed,
this unusual and unfortunate case does not justify deterrence,
and the claim for punitive damages is denied.
 Of the special damages of $2,388.38 claimed, only the
expenses of and incidental to the polygraph test ($326) are
allowed. Neither the costs associated with mortgaging the
[E.]'s home (to finance this litigation) nor the legal fees
attributable to the aborted Criminal Code proceedings (arising
from the Missezula Lake confrontation) can appropriately be
considered to be costs incurred in prosecuting or defending
these two actions.
 For the reasons previously stated, the past wage loss
claim is denied.
 [L.E.] also seeks an order enjoining the [P.]s from
repeating their slanderous statements. Frankly, it would
surprise me if the filing of these reasons does not assist in
stemming further Missezula Lake speculation. I am not satisfied
that an injunction is justified.
 [D.P.]'s claim for damages for sexual assault is
 Although my inclination is to award [L.E.] costs on Scale
3 (with respect to both actions), I will hear counsel's
submissions on costs. If counsel prefer, those submissions can
be in writing.