L.E. v. W.P., 1998 CanLII 15069 (BC SC)

Date: 1998-05-06
Docket: S6201; S7292
Citation: L.E. v. W.P., 1998 CanLII 15069 (BC SC), <http://canlii.ca/t/1wmx7>, retrieved on 2016-05-28
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    L.E. v. W.P., 1998 CanLII 15127 (BC SC) - 1998-12-11

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                                                   May 6, 1998

                                                      No. S6201

                                            Chilliwack Registry

 

 

           IN THE SUPREME COURT OF BRITISH COLUMBIA

 

BETWEEN:

                             L.E.

                                                      PLAINTIFF

AND:

                        W.P., D.P., and

                             M.P.

                                                     DEFENDANTS

 

 

 

 

                                                   May 6, 1998

                                                      No. S7292

                                            Chilliwack Registry

 

 

           IN THE SUPREME COURT OF BRITISH COLUMBIA

 

BETWEEN

                             D.P.

                                                      PLAINTIFF

AND:

                             L.E.

                                                      DEFENDANT

 

 

 

 

 

 

                     REASONS FOR JUDGMENT

 

                           OF THE

 

               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

 

1. INTRODUCTION

 

[1]  [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.

 

[2]  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

 

[3]  [L.] and [P.E.] have known [B.] and [D.P.] for almost

twenty years.   [M.P.], now twenty years old, is the [P.]s'

oldest child.

 

[4]  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.

 

[5]  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.

 

[6]  [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.

 

[7]  [P.E.] and [L.H.] have been "best friends" since their

childhood.

 

[8]  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.

 

[9]  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.

 

[10] 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.

 

[11] [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.

 

[12] There are remarkable differences between [L.E.]'s and

[D.P.]'s versions of what next happened.

 

[13] [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.

 

[14] [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.

 

[15] [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.

 

[16] [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

our lives."

 

[17] [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.

 

3. DISCLOSURE

 

[18] [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.

 

[19] 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".

 

[20] 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.

 

[21] 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.

 

[22] 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.

 

[23] 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.

 

[24] 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".

 

[25] 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'.

 

[26] 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.

 

[27] [D.P.]'s substantial disclosure to her husband finally

came a few days after the men's bike trip.

 

[28] 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.

 

[29] 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

 

[30] [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.

 

[31] 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.].

 

[32] 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.

 

[33] 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.

 

[34] 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.

 

[35] 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

sought counselling.

 

[36] 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.

 

[37] 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.

 

[38] 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.

 

[39] 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.

 

[40] 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.

 

[41] 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".

 

[42] 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.

 

[43] 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

Missezula Lake.

 

[44] 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.

 

[45] Although the rape allegations have significantly affected

[L.E.]'s personal life, neither the incident itself nor the

subsequent proceedings have affected his income.

 

[46] 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

 

[47] [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).

 

[48] 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.

 

[49] 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.

 

[50] 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

suits.

 

[51] 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. 

 

[52] 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.

 

[53] 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. 

 

[54] 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.

 

[55] 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.)

 

[56] 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).

 

[57] 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.

 

[58] 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

[D.P.].

 

6. THE DEFAMATION CLAIM

 

[59] 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.

 

[60] [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.

 

[61] [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.

 

[62] 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.

 

[63] 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.

 

[64] 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

reasons.

 

[65] 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.

 

[66] 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.

 

[67] In their Statement of Defence the [P.]s plead both fair

comment and qualified privilege. Neither defence is available

here.

 

[68] 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), [1924] 2 W.W.R. 750 (Sask. C.A.).

 

[69] 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.

 

[70] 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.

 

7. DECISION

 

[71] [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.

 

[72] 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.

 

[73] 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.

 

[74] For the reasons previously stated, the past wage loss

claim is denied.

 

[75] [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.

 

[76] [D.P.]'s claim for damages for sexual assault is

dismissed.

 

[77] 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.

 

                                                  "Collver, J."

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