Kopeck v. Constantin et al, 2003 BCSC 339

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kopeck v. Constantin et al 2003 BCSC 339 Date: 20030402 Docket: 16693 Registry: Prince George Between: Alexander Kopeck, also known as Al Kopeck Plaintiff And Roxanne Constantin, Bette Podgornik, carrying on Business under the firm name and style of TR Rag, and the said Bette Podgornik, Sharon Bloomcrist-gileo, Ian Edward Leach, Sherry Berringer, Norma Mary Herron, Elaine Trudy Hollingworth and Tumbler Ridge Chamber of Commerce Defendants Before: The Honourable Mr. Justice Meiklem Oral Reasons for Judgment April 2, 2003 Counsel for the plaintiff: T.P. Matte P.

Gottschlich Counsel for the defendants: G. Abrams Place of Trial: Prince George, BC [ 1 ] THE COURT : As we determined at the outset of counsel’s submissions today, this case is about damages for libel, there being no dispute about the defamatory nature and the publication of a press release which occurred, first, on May 25 th or May 29 th .

May 25 th was the date of the press release, May 29 th I think was the date of the publication, in the TR Rag , a local bulletin/newspaper that is distributed in Tumbler Ridge free to everyone and placed in prominent public locations for distribution. [ 2 ] The press release read: Tumbler Ridge Chamber of Commerce has recently appointed a new executive and board of directors after disbanding in 2001. The first order of business for the Chamber was to examine the books as presented by former director and town councillor, Al Kopeck.

The new executive having received the books, and that the books were not in proper order, made a formal complaint to the RCMP.

On May 24 th , Cst. Lehr of the Tumbler Ridge detachment, having viewed the material, has confiscated and forwarded the material to the commercial crime unit in Prince George for analysis. It is the hope of the new executive and directors of the Chamber that any liabilities or inappropriate behaviour in the past that caused the dissolution of the Chamber, be clarified through the RCMP investigation. [ 3 ] Certain elements of that were untrue. Implications that Mr. Kopeck was responsible for preparing or presenting the books to the new executive were incorrect, and the material had not been confiscated or sent to the commercial crime unit. [ 4 ] There was a similar

article not couched as a press release, but incorporating the same language, published in a Dawson Creek publication called The Mirror on Friday, May 31 st .

The Mirror is a publication which is delivered free to every household in Tumbler Ridge, according to the evidence. [ 5 ] There was a subsequent amendment published in the TR Rag to the effect that the books had not been sent to the commercial crime unit but to an outside accountant. [ 6 ] There was a demand for apology, correspondence between counsel, and eventually on July 19 th there was an apology published in The Mirror , which read: The Tumbler Ridge Chamber of Commerce would like to apologize for statements made in the press release of May 25 th , 2002 and June 5 th , 2002, published in the TR Rag and The Mirror.

The executive and directors are sorry for any difficulties or harm these press releases may have caused any individual concerned. It was not the intent of the Chamber, or its directors, to defame any person, in particular Al Kopeck, the former director of the Chamber and at present a District Councillor. So far as the Chamber and its directors are aware, there is no basis for suggesting that Mr. Kopeck was in any way guilty of dishonest conduct. [ 7 ] I will start with my disposition on the claim for special damages. Mr. Kopeck ran for re-election as District Councillor in Tumbler Ridge in 2002 and was defeated.

He claims as special damages his anticipated three years stipend, which totals just over $20,000.00. [ 8 ] I do not find this claim made out. Even if the likelihood of libel causing the loss was established, I would not conclude that the stipend itself was the true measure of damages because it ignores the costs, both real costs and involvement, labour, etc. that would be required for that job.

It would seem to me to be akin to claiming lost revenue rather than lost profit on some business opportunity lost, but that is rather parenthetical because I do not find the loss caused by the libel. [ 9 ] I agree with the several cases that decline to contribute electoral losses to defamation, including our Court of Appeal case cited by Mr. Abrams, Westbank Indian Band v. Tomat . It is a matter of speculation to analyze cause and effect in democratic elections.

This particular case, because of the closeness of the vote may be closer than many to supporting a reasonable inference that the plaintiff would otherwise have garnered an additional twenty-eight votes. That is, after all, by my calculations approximately 3.4% of the eligible voters who voted in 2002. [ 10 ] However, to illustrate how speculative that could be, I note that the only incumbent re-elected who was also on the slate in 1999 when Mr. Kopeck was elected, namely Ray Proulx, garnered 13% of the vote in 1999 and only 9% in 2002.

The 2002 election involved more eligible voters, a 42% voting rate compared to a 32% voting rate in 1999, ten more candidates than available positions as compared to three surplus candidates in 1999. Those additional losing candidates all made a decent showing, in other words splitting the vote. One of the non-incumbents in fact topped the polls in 2002. All of this points to a much different election atmosphere in 2002 than there had been in 1999. Even in 1999, I note, Mr. Kopeck and Mr. Hendley, as non-incumbents, both resoundingly defeated two incumbent councillors. [ 11 ] It is also noteworthy, as Mr.

Abrams points out, that Mr. Kopeck had, prior to the 2002 election, a record of two wins and two losses. Perhaps it is just as reasonable an inference that a rapidly changing population found little reverence for incumbents in elections in Tumbler Ridge. If so, that lack of reverence would parallel the pronounced disrespect that was clearly shown to Mr. Kopeck and other previous Chamber of Commerce executive, by newcomers Ms. Constantin and Ms.

Bloomcrist-Gileo, in publishing the press release that gave rise to this action. [ 12 ] I do not find the special damages proven on a balance of probabilities, but I agree with Mr. Matte that the possibility that the loss of the election was caused by the libel which occurred some five months and a few weeks earlier, is a real enough contingency to be taken into account to some degree in assessing general damages. [ 13 ] I agree with plaintiff’s counsel that this was a libel which should attract significant general damages.

The defamatory message was contained in a press release intended for the widest possible publication in the small community of Tumbler Ridge. It was in fact published in a newspaper delivered free to every household, and in another newspaper or bulletin distributed free to all public places. It impliedly connected the plaintiff to allegations of fraud or theft serious enough to warrant the involvement of the commercial crime unit of the RCMP; it carried the ostensible prestige and credibility of the Chamber of Commerce, which maximized its impact.

[ 14 ] The plaintiff was a prominent and well known businessman and local politician, whose reputation was important to him. The plaintiff was subjected to comments from the public which upset him and caused him, uncharacteristically, to resort to prescriptions for anxiety and depression, and he has been soured on involvement in political and community service work since then. [ 15 ] The defendant, Ms. Constantin, did not exhibit any contrition. I was actually taken aback by her apparent lack of understanding of how the actions of herself and her fellow directors of the Chamber could have wronged Mr.

Kopeck, and by her absence of remorse. [ 16 ] The only other defendant to testify, Ms. Bloomcrist-Gileo, may have somewhat greater insight, but she did not directly express remorse either. [ 17 ] None of the defendants have ever apologized directly to Mr. Kopeck. They seemed to take the approach that as newcomers to town, and bungling neophytes on the Chamber of Commerce, their actions, when faced with an incomplete non-current set of books for a known dormant Chamber of Commerce, were completely reasonable. In fact, I find their actions were completely irresponsible and reckless. [ 18 ] Ms.

Constantin’s assertion that the main purpose of the press release was to solicit the public’s help in obtaining fuller records and completing the Chamber’s books, is quite incredible. The release did not even hint at the need for help from the public or previous members of the Chamber. She did not accept Mr. Kopeck’s offer to get help, nor even ask him for further records or information. Her testimony was also unsettling in respect of her knowledge as to whether Mr. Kopeck had previously been the treasurer of the Chamber.

She first said she did not know that he was not the treasurer, then she admitted that she pretty much knew that he was not and that, in fact, Ms. Funk was. [ 19 ] Recklessness is not the same as malice, but it also works to reduce the mitigating effect of allegedly honest purpose. Mr. Matte has not pressed his pleaded claim for punitive damages.

These are generally called for if the general damage award is not deemed sufficient denunciation and deterrence of the defamatory conduct, but the need for denunciation and deterrence nevertheless can still remain an influence on the general damage award. [ 20 ] In this case there clearly remains a need to deliver a message to the defendants, and other like-minded people, that they need to be much more careful and respectful of people’s reputations. Mr.

Abram suggests that the letters from the three resigning Chamber of Commerce directors, and the Mayor and Council, and the letters to the editor, demonstrate that people did not believe the libel. And he suggests that the plaintiff’s reputation was thereby defended. I do not really read most of those letters that way, quite frankly. I think those letters generally do not rehabilitate Mr. Kopeck or come out on his side, but rather are critical of the Chamber of Commerce for undermining public confidence and sewing the seeds of dissention in the troubled community. [ 21 ] They do, as suggested by Mr.

Matte, also indicate a perception on the part of the authors of the serious wrong that had occurred. It is no answer to say that Mr. Kopeck is not aware of anyone who thinks less of him. People may not be disenchanted enough to express it to him directly. Certainly Mr. Ortynsky gave relatively strong evidence indicating there were negative opinions in the community that had been expressed to him by his customers, and he estimated he had heard it from ten or twenty. [ 22 ] I agree that Mr.

Kopeck’s reputation has not been destroyed, but I have no doubt that it was tarnished and there can be no doubt of his personal anguish and stress. [ 23 ] Mr. Abrams suggests that Mr. Kopeck should have mitigated his loss by a published notice of his own, which would have eliminated a relatively small problem that could have thereby been corrected. I do not accept that argument. To do so may well have exacerbated his difficulties. The people that should have published a full explanation of the facts, particularly once Mr. Kopeck took the position that he had been libelled, were the defendants.

The defendants did, in fact, publish an apology letter in form approved by plaintiff’s counsel. This, in my view, was preferable to Mr. Kopeck having to publish a refutation and come to his own defence in press. The apology letter was published July 19 th , about three weeks after a draft was sent to plaintiff’s counsel, and six weeks after it had been originally demanded. This apology does serve to reduce the assessment of damages, but not perhaps as much as it would have if it was done in a more timely manner. [ 24 ] I do not consider the constituent claim for business loss very significant. Mr.

Kopeck said he had a feeling that his sales should have gone up with the population and they have not. But there was no specific financial information in evidence and I question just how much the population really increased when I see that the number of eligible voters on the evidence has only increased about one hundred and seventy people between 1999 and 2002. There may, of course, have been a valley in there but the numbers are not too dissimilar. [ 25 ] The award must provide vindication commensurate with the harm to reputation and the suffering of Mr. Kopeck.

I am assisted by the comparison of awards in other cases which Gray J. made in Gracey v. Scott .

I do bear in mind that no two cases of libel are truly similar and it is dangerous to start speaking of a range of damages in certain classes of cases, but I do note that the Gracey case cites several awards in the range of $15,000.00 to $30,000.00. [ 26 ] After a consideration of all the relevant factors and circumstances present in this case, I think the appropriate award for the plaintiff is $20,000.00 in general damages, and I so order. (SUBMISSIONS BY COUNSEL RE COSTS) [ 27 ] I do not think I have a lot of discretion there.

I think, for clarification - I do not know if there would be an argument about it between you - but it appears there was some confusion in the past about whether double costs includes disbursements. In any event, if there were any discretion or ambiguity there, I would not double those. Double costs in accordance with the rules from the time the offer was made. “I.C. Meiklem, J.” The Honourable Mr. Justice I.C. Meiklem