Carnegie v Descalchuk, 2022 ABKB 720

Court of King’s Bench of Alberta Citation: Carnegie v Descalchuk, 2022 ABKB 720 Date: 20221028 Docket: 2104 00519 Registry: Grande Prairie Between: Amber Carnegie, Lexie Carnegie by litigation Representative Amber Carnegie Plaintiffs by Counterclaim - and - William Descalchuk Defendant by Counterclaim Corrected judgment: A corrigendum was issued on February 6, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Justice J.A. Fagnan _______________________________________________________ Introduction [ 1 ] The Plaintiffs by Counterclaim established on a

summary judgment application that Mr. Descalchuk had defamed them. This is a decision on assessment of damages for the defamation. Background [ 2 ] Mr. Descalchuk and Ms. Carnegie became acquainted in 2014 through a karate club in Grimshaw, Alberta. The relationship soured in 2015 and has continued to be problematic, occasioning multiple attendances in this Court.

First Restraining Order [ 3 ] On June 22, 2018, Simpson J. granted Ms. Carnegie a Restraining Order without notice against Mr. Descalchuk on standard terms. Simpson J. granted a renewal on July 19, 2018. [ 4 ] On August 2, 2018, Simpson J. granted a consent mutual Restraining Order which specifically prohibited any direct or indirect communication between the parties, prohibited Mr. Descalchuk from posting any information on any electronic media or otherwise with respect to Ms. Carnegie or her daughter and directed him to remove any postings in respect of either of them. The order was to expire on August 2, 2019.

Human Rights Complaint [ 5 ] At some point, Mr. Descalchuk made a human rights complaint against Ms. Carnegie alleging that she had published an altered image which was discriminatory against him. On February 25, 2019, a Human Rights Officer found that there was no reasonable basis to proceed with Mr. Descalchuk’s complaint, and recommended the complaint be dismissed. The Officer found that the information provided did not support the assertion that Ms. Carnegie had created or posted the image in question. The Officer stated that the information instead supported a finding that Mr.

Descalchuk posted the image on his own Facebook page after receiving it from a third party whom he did not or would not identify to the Investigator. Second Restraining Order [ 6 ] Ms. Carnegie again applied for a restraining order on October 23, 2020 on behalf of herself and her daughter, alleging that Mr. Descalchuk was continuing to harass them by posting derogatory and disturbing images and statements on Facebook. [ 7 ] In an affidavit sworn on October 16, 2020, Ms. Carnegie deposed that Mr.

Descalchuk had breached the terms of prior Restraining Orders, and that he had continued to post online about her and her daughter. She deposed that Mr. Descalchuk was arrested by the RCMP and held in a detention centre in Peace River. Further, she related that during a telephone conference, a justice required Mr. Descalchuk to confirm aloud that he understood he was to obey the terms of the Restraining Order. She alleged that following expiry of the prior Restraining Order, Mr. Descalchuk’s online harassment of Ms. Carnegie and her daughter on Facebook and YouTube increased significantly. Ms.

Carnegie alleged that Mr. Descalchuk had created a publicly available Facebook group called "Crack Whores Are on the Loose" under the alias “William Shakes-Beer”; he had made social media posts and videos implying violence and sexual violence toward her and her daughter; he had also posted a photo of her home which included the address; and he had created a fake Facebook account in her name, made negative posts about himself and then shared them on his own Facebook account to try and discredit her. [ 8 ] On October 23, 2020, Shelley J. granted a Restraining Order without notice against Mr.

Descalchuk which specifically restrained him from posting any information on any electronic/social media platform or otherwise with respect to Ms. Carnegie and her daughter and ordered him to remove any and all postings with respect to them from any electronic/social media platform or otherwise. [ 9 ] On November 9, 2020, Ms. Carnegie sought an extension of Shelley J.’s order. Wilson J. heard the application. Mr. Descalchuk attended by WebEx. He stated that he had posted the online materials about which Ms. Carnegie was complaining to get Ms.

Carnegie into court to address what he alleged was her harassment of him. Wilson J. told Mr. Descalchuk he was “about one step away from a criminal offence”. Wilson J. encouraged Ms. Carnegie’s counsel to address the possibility of another mutual restraining order and he put the matter over to November 16, 2020. On that date, DeWit J. granted a temporary extension of the Restraining Order with Mr. Descalchuk’s consent. [ 10 ] On December 1, 2020, Ms. Carnegie swore an updated statement indicating that Mr.

Descalchuk had admitted on the record on November 9, 2020 that he had done what she had accused him of, he had posted the sexually explicit materials online that targeted her 12-year-old daughter, and he had posted these things in order to force Ms. Carnegie into Court. She noted that Mr. Descalchuk had not provided any response to date nor any evidence that would suggest that he required a restraining order against Ms. Carnegie or her daughter.

She attached a copy of the November 9, 2020 transcript as Exhibit A. [ 11 ] On December 4, 2020, Neufeld J. granted a further extension of the Restraining Order and directed Mr. Descalchuk to file his response materials on or before March 3, 2021. [ 12 ] On March 3, 2021, Mr. Descalchuk filed a “counterclaim” to Ms. Carnegie’s application. In his affidavit of the same date, he alleged that he had met Ms. Carnegie and her daughter at the karate club in 2014, that Ms.

Carnegie encouraged him in 2015 to apply to a restaurant owned by her friends in Grimshaw, he left the job as it was not suitable for him, and thereafter Ms. Carnegie started posting on Facebook public pages and spreading gossip, defaming and slandering him. He moved from Fairview in 2018. He denied having posted anything against Ms. Carnegie or her daughter as alleged in Ms. Carnegie’s affidavit. [ 13 ] In Ms. Carnegie’s Reply and Update Affidavit sworn on March 9, 2021, she deposed that she had not posted anything online in reference to Mr. Descalchuk for several years. She noted that Mr.

Descalchuk referred to old communications that were already dealt with during the original Restraining Order proceedings from 2018, or by the Human Rights Tribunal, including images which were already determined to have been altered and/or posted by Mr. Descalchuk. She again attached the transcripts of the hearing before Wilson J. She referenced videos Mr. Descalchuk had posted on YouTube in 2021 which she had reported to the RCMP. Viva Voce Restraining Order Hearing [ 14 ] On March 17, 2021, Shelley J. presided over a viva voce hearing. She deemed the “counterclaim” filed by Mr.

Descalchuk to be his response to the application. Both sides were represented by counsel and both Ms. Carnegie and Mr. Descalchuk testified.

[ 15 ] Mr. Descalchuk could not initially recall if the prior consent mutual Restraining Order prohibited him from posting about Ms. Carnegie and her daughter. He said he had probably posted about Ms. Carnegie prior to the Order because he had to defend himself, but that he had not posted anything about her daughter, and he had not posted anything since the mutual consent Restraining Order. He said Ms. Carnegie lied that he had posted anything about her daughter. He denied making the Facebook posts appended as Exhibit F to Ms. Carnegie’s affidavit of October 16, 2020. [ 16 ] Mr.

Descalchuk was shown the transcript from his appearance on November 9, 2020 but still did not recall having told Wilson J. three times that he had made the posts complained of, or that he had to do so to get Ms. Carnegie into court. He did, however, remember alleging to Wilson J. that Ms. Carnegie had slandered him. [ 17 ] Mr. Descalchuk agreed he had a Facebook account under the name “William Shakes-Beer”. He also agreed he made a Facebook post in May 2020: ...I have made the crack whore a laughing stock in the community.

Humiliating her is better than what a lot of people would like to have happen to her! [ 18 ] When asked to whom he was referring in that particular post, he responded “crack whore”. He agreed that he referred repeatedly to Ms. Carnegie as “crack whore”. When asked why he constantly referred to her as “crack whore”, he stated that she had bragged about having been a drug addict and she was raped when she was young, “so I just kind of made the – made the – coined the phrase, oh, so you’re a crack whore and it sort of stuck after she became belligerent towards me”. [ 19 ] Mr.

Descalchuk testified that he had noticed and purchased a photo in Walmart that looked like Ms. Carnegie’s daughter. He denied making any postings containing sexual references to anyone. He admitted to making the May 24, 2020 post, but none of the subsequent posts, suggesting that someone who was out to get him had hacked his Facebook account. He also testified, however that he was in the habit of checking his Facebook page two or three times a day and removing posts not made by him. He said he does not post nasty stuff. [ 20 ] Mr.

Descalchuk denied making the following posts on his Facebook page in 2020: “Amber Carnegie is back to her drug diggity ways! Purple nose of that mutt says it all. Whoring out the 12-year-old to pay for drugs” “Lexie asking for a hundred dollars like her mama told her”. [ 21 ] He testified that he had no idea who put the posts on his Facebook page and said they were disgusting. [ 22 ] Among the allegedly defamatory materials before the Court was an exchange on Facebook in 2020 with someone communicating under the pseudonym Fred Astaire in which Mr.

Descalchuk stated: “...the crack whore has a kid and being pimped out like the crack whore mother. I heard the mother is making big bucks off the daughter.. I guess men like 10 year olds.” [ 23 ] When asked whether he had posted anything after the expiry of the Restraining Order, he said: “Yes, probably to defend myself against that woman”. [ 24 ] Mr. Descalchuk denied having posted anything during the prior Restraining Order. He recalled having been arrested during the term of the original Restraining Order but said this was because Ms. Carnegie “sent a recycled video”.

He recalled a telephone conversation during which Burrows J. had said “you can have this thing revised if you want, but you’re free to go”. He did not remember anything else about the conversation. He did recall when pressed that he had confirmed aloud to Burrows J. that he had to obey the Restraining Order. [ 25 ] Mr. Descalchuk said his February 18, 2021 YouTube video referring to a developmentally disabled lawyer was intended to refer to counsel for Ms. Carnegie, Ms. Erickson. He also referred in it to a “crack whore”. When asked to whom he was referring, he responded: “Oh, anybody”.

When asked why he was arrested on February 20, 2021, he said it was because the officer implied the video was about Ms. Carnegie. He said he had a court date in March 2021 for apparently breaching some kind of order and another appearance date pending. [ 26 ] In her reasons for decision, Shelley J. found that Mr. Descalchuk was not a credible witness. For example, he did not recall having admitted three times to Wilson J. that he had posted the Facebook posts in question, but he did remember that he told Wilson J. that Ms. Carnegie had slandered him.

He admitted he had made many posts about crack whores on his Facebook page and admitted he frequently refers to Ms. Carnegie as a crack whore. He purchased a picture that looked like her daughter but denied posting any disturbing content about her and could not explain how the posts appeared on his Facebook page for so long, and why they were not taken down when he said he checked his Facebook page two to three times a day and removed anything posted by others. She found that despite Mr.

Descalchuk’s denials, he did post the items in question or had someone do so on his behalf. [ 27 ] Shelley J. stated that this was not just a case of cyber harassment - the tenor of the posts would lead anyone to reasonably fear for the safety of the daughter, particularly given her age and stage of development. She noted that Mr.

Descalchuk in attempting to distance himself from these postings on his Facebook page had himself described them as horrible. [ 28 ] Shelley J. concluded that the voluminous quite compelling documentary evidence on the court file, along with the viva voce evidence, constituted ample evidence to support the application. She granted an indefinite Restraining Order, to remain in place until further order of the Court, including a prohibition on harassing or otherwise interfering with or contacting the applicants, either directly or indirectly, and either personally or by agent. She specifically prohibited Mr.

Descalchuk from posting any information on any electronic/social media platform or otherwise with respect to the applicants and ordered him to remove any and all postings from any electronic/social media platform or otherwise with respect to them. She ordered him to pay costs of $2,450 forthwith for the three appearances in relation to the application. It was open to either party to apply to set aside or vary the order on 10 days’ notice.

[ 29 ] Shelley J. told Mr. Descalchuk with respect to his “counterclaim” that he could not piggy-back a claim for defamation onto the Restraining Order proceedings as this was a separate cause of action. Defamation Claim and Counterclaim [ 30 ] Six months later, on September 3, 2021, Mr. Descalchuk filed an Originating Application and affidavit, sworn on July 19, 2021 invoking alleged incidents leading up to July 2019, and impugning steps Ms. Carnegie had taken to obtain and enforce past Restraining Orders and her participation in other court proceedings. [ 31 ] Mr.

Descalchuk alleged in his affidavit that during a fundraiser for the karate club in 2015, Ms. Carnegie had made it clear she wanted to be more than friends at which time he made it clear he did not want to have that type of relationship with her. He told other members of the club what had happened and Ms. Carnegie stated, “I’ll show you what I can do”. [ 32 ] On October 13, 2021, Ms. Carnegie filed an affidavit in response and an application for

summary judgment to dismiss Mr. Descalchuk’s Originating Application. She sought a declaration that he had defamed her by broadcasting images and statements that would tend to lower her reputation in the eyes of a reasonable person via social media platforms such as Facebook, YouTube and TikTok. In her affidavit, she addressed the timing of each of the communications or events underlying Mr.

Descalchuk’s claims, as well as the various proceedings and findings that had occurred over the history of the Restraining Order proceedings and the Human Rights proceeding. [ 33 ] On October 20, 2021, the matter was adjourned to November 22, 2021 to allow Mr. Descalchuk time to retain new counsel. The order provided that the appearance on November 22, 2021 would be peremptory, in other words it was to proceed regardless of whether or not he had retained new counsel. DeWit J. ordered that the clerks rename Mr. Descalchuk’s Originating Application as his Statement of Claim which would permit Ms.

Carnegie to file a Counterclaim. [ 34 ] In her Statement of Defence filed on October 26, 2021, Ms. Carnegie alleged that Mr. Descalchuk’s claims were barred by s. 3(1) of the Limitations Act , that any statements that she may have made were true, Mr. Descalchuk had admitted to the acts which were the subject of her statements and the basis for the current Restraining Order against Mr. Descalchuk on the record on November 9, 2020 before Wilson J. and on March 17, 2021 as found by Shelley J.

She claimed qualified privilege with respect to statements made in the course of litigation in that she had a public and private duty to make the statements in the course of the Restraining Order proceedings against Mr. Descalchuk and as a respondent or witness to additional proceedings commenced by her and third parties. [ 35 ] In her Counterclaim for defamation, Ms. Carnegie claimed that Mr. Descalchuk had broadcast defamatory statements about her and her daughter including repeatedly calling Ms.

Carnegie a “crack whore” on video and through social media posts, repeatedly broadcasting defamatory statements claiming Ms. Carnegie was prostituting her daughter, repeatedly claiming Ms. Carnegie is a drug user/dealer, as Mr. Descalchuk had admitted on the record on November 9, 2020 before Wilson J., and found by Shelley J., and that he continued to broadcast defamatory statements using alternate names for her despite the terms of the March 17, 2021 Restraining Order.

Summary Judgment Application [ 36 ] The matter came before this Court on November 22, 2021. Mr. Descalchuk had retained new counsel who acknowledged that the matter was peremptory and stated that he was ready to proceed. Counsel acknowledged that the statements in question were made by Mr. Descalchuk. He submitted, however, that

summary judgment was not appropriate as more context was required. He submitted, for example, that Ms. Carnegie had allegedly indicated at some point that she was at one time addicted to a substance. [ 37 ] Mr. Descalchuk’s counsel agreed that all of Mr. Descalchuk’s allegations against Ms. Carnegie in his Statement of Claim concerned events which had occurred more than two years prior to the filing of his Claim. His counsel conceded that Ms. Carnegie’s counsel’s comments regarding limitations were accurate and he expressly declined to make further submissions in that respect. [ 38 ] This Court granted Ms.

Carnegie’s application to dismiss Mr. Descalchuk’s Statement of Claim on the basis that the allegations therein were barred by limitation and the assertions in the Statement of Claim that Ms. Carnegie had defamed Mr. Descalchuk by participating in Restraining Order and related proceedings or taking steps to enforce the Restraining Orders granted amounted to collateral attacks on the findings in the prior Restraining Order proceedings. [ 39 ] No allegation in Mr. Descalchuk’s Statement of Claim was responsive to Ms. Carnegie’s defamation Counterclaim, and he had filed no further response to her defamation claim.

The impugned words were clearly defamatory on their face as they would tend to lower Ms. Carnegie’s and her daughter’s reputations in the eyes of a reasonable person, they in fact referred to her and her daughter, and they were published on social media platforms. These facts had been established in earlier proceedings and Mr. Descalchuk presented no allegations or arguments to refute them. The Court did not accept the argument that more context was required. As there was no genuine issue for trial in relation to liability and no defence to Ms. Carnegie’s counterclaim, the Court granted

summary judgment on liability under Rule 7.3(1)(a). [ 40 ] The Court directed an assessment of damages to be held at a later date to allow Mr. Descalchuk’s counsel time to respond to the claim for damages. [ 41 ] Ms. Carnegie’s counsel sought full solicitor client costs in relation to the hearing. Mr. Descalchuk’s counsel made no submissions on costs. The Court granted $5,000 in costs which was to be paid prior to the damages assessment. The Court also granted an order requiring Mr. Descalchuk to obtain leave of the Court prior to filing any pleadings naming Ms. Carnegie as a defendant or respondent. [ 42 ] On January 21, 2022, Mr. Descalchuk’s counsel filed a Notice of Withdrawal.

Desk Application for Assessment of Damages [ 43 ] In March 2022, counsel for Ms. Carnegie submitted a desk application for assessment of damages, along with an affidavit sworn March 9, 2022 and a memorandum setting out her argument and case law, all of which were served on Mr. Descalchuk. In paragraph 26 of her affidavit of March 17, 2022, Ms. Carnegie recounted the basis for the claim, concluding: I just want all of this to stop so that my family and I can move on with our lives without the constant worry that the Defendant will post more of the disgusting and damaging defamatory claims against me.

If my daughter were to see any of the posts or videos, the damages would be irreparable. [ 44 ] On April 14, 2022, Mr. Descalchuk filed, but did not serve on Ms. Carnegie or her counsel, an affidavit in response, deposing: I agree to nothing that the applicant is asking for. She brings on the trouble herself. I agree to the insults the community of Fairview, AB, refers to the applicant as being. I agree with nothing the applicant claims. The insults she is referred to as, are from the town members. I agree to nothing the applicant claims as legitimate.

She story against myself and any one of a number citizens at any given moment has her running after citizen banging on their doors asking for fights. The applicant is a vigilanti masking as a concerned community minded citizen. The applicant has demonstrated that she has a vendetta against me for the past seven years. The respondent rejected her friendship and sexual advances. The respondent embarrassed the applicant after mentioning her attempted sexual act to two parent members. The karate club was located in Grimshaw, AB.

The second last thing the applicant said to me in 2015: “Why don’t you want to be my friend?” The applicant further embarrases herself and I told her to get the “expletive” away from me. The applicants words were, “I’ll get you. I’ll show you what I can do!!!...and here we are, seven years later. The applicants 2018 court application to the Peace River court was a fabrication and malicious attempt to use new court as her new bully. The RCMP were no longer listening to the crying of wolf. The respondent is an Indigenous man nearing sixty years of age.

The Systemic Racism of the Alberta Justice has been prevalent in this seven years of issue and with the RCMP as well. Grievances have been filed. [ 45 ] Under “Other information”, Mr. Descalchuk deposed to interactions with the RCMP, stating Ms. Carnegie has been bent on revenge since 2015 and has used the RCMP and the courts to frame him. He added that the claim that he had glared at her daughter for a long time “dated March 6, 2018” was false.

He concluded: The applicant has a demeaner towards her community that demonstrates self serving interest with no filter or remorse to those she harms under the false claim shes a community minded citizen. [ 46 ] The judge to whom the application was submitted declined to decide the matter by way of desk application. [ 47 ] In a court appearance on July 4, 2022 to set the oral hearing on damages, Mr. Descalchuk appeared in person. This Court established the terms of the oral hearing, directed to be heard on August 10, 2022. Mr. Descalchuk was invited to file a further affidavit on or before August 5, 2022.

He did not file any further documents. Assessment of Damages Hearing [ 48 ] Both Ms. Carnegie and Mr. Descalchuk testified at the assessment hearing held on August 10, 2022. Ms. Carnegie [ 49 ] Ms. Carnegie stated that she and her husband had moved to Alberta in 2012 and to Fairview in 2013. They worked hard to be good community members through various volunteer efforts and enjoyed a high standing in the town. They won the Outstanding Resident Award in 2019. [ 50 ] Ms. Carnegie met Mr. Descalchuk in 2014 at the karate club in Grimshaw where she, her daughter and her husband were members. Mr.

Descalchuk overheard a conversation wherein she discussed having previously suffered from an addiction from 2004 to 2007. Ms. Carnegie also testified that she had suffered sexual abuse in her past. [ 51 ] After their relationship soured in 2015, Mr. Descalchuk started posting on social media about Ms. Carnegie and her daughter. Ms. Carnegie testified that this resulted in humiliating rumours and gossip. Her relationship with her daughter was affected as she tried to shelter her while providing enough information so that she was aware of the situation and understood the Restraining Orders. Ms.

Carnegie said she revealed some of her past to her daughter because of the things Mr. Descalchuk was posting. Ms. Carnegie reduced the amount of volunteer work she was doing. They got a security system for their home. She worried about her daughter’s safety. The Restraining Orders complicated her life. For example, she had to advise neighbours and the farmer’s market personnel where she sold her homemade jelly about the Restraining Orders. If individuals came to their defence, Mr. Descalchuk would post about them. [ 52 ] Ms. Carnegie testified that Mr.

Descalchuk created a Facebook group called “Crack Whores Are on the Loose”, targeting her daughter, and that he posted pictures of their home. These materials made Ms. Carnegie physically ill. [ 53 ] She said all of this has resulted in her daughter suffering from anxiety and she had to go to therapy. Ms. Carnegie has also been diagnosed with anxiety and depression and was put on medication and attended therapy. She has suffered from heart palpitations. [ 54 ] Ms. Carnegie testified that for over six years, Mr. Descalchuk has tarnished Ms.

Carnegie and her daughter publicly within the community, damaging their reputations, affecting Ms. Carnegie financially, physically, mentally and socially, and affecting her daughter psychologically. She is most concerned about how the posts about her daughter could affect her, and the potential for their re-circulation.

[ 55 ] Ms. Carnegie stated that her husband has felt powerless to protect his family and has had to work extra hours out of town to cover the financial costs incurred in attempts to put a stop to Mr. Descalchuk’s behaviour. She testified that they have paid significant legal related fees in the last two years. She said the postings have affected her small online jelly business revenues. [ 56 ] Ms. Carnegie stated that despite the Restraining Orders, Mr. Descalchuk has continued to post although he now does not refer to Ms. Carnegie by name, simply as “crack whore”.

She could not estimate the number of relevant posts over the past two years but indicated she has five memory sticks full of videos and voluminous print outs of posts gathered over the years. She has reported Mr. Descalchuk to the RCMP multiple times but he has not stopped. She testified that when he saw her at the courthouse, he gave her the finger and grabbed his crotch. [ 57 ] In cross-examination, Ms. Carnegie agreed that she posted online in 2016 that Mr. Descalchuk was dangerous, a liar, and people should not hire him, rent to him or allow children around him. Mr.

Descalchuk referred her to a cease-and-desist letter sent by his lawyer to her requesting that Ms. Carnegie stop posting negative comments about Mr. Descalchuk. He also referred to fake poop he says she sent him in the mail in 2016. [ 58 ] Ms. Carnegie denied the suggestion that she took pictures of her own daughter and posted them on Mr. Descalchuk’s social media pages in order to fabricate evidence against him. With respect to a claim of Mr. Descalchuk stalking her daughter in 2018, which was included in her affidavit in support of a prior Restraining Order (and which Mr. Descalchuk disputes), Ms.

Carnegie said her daughter told her she thought Mr. Descalchuk was watching her on the date in question. [ 59 ] In re-examination, Ms. Carnegie testified that she has not posted anything about Mr. Descalchuk since the mutual Restraining Order was granted in 2018 as she learned that she should not retaliate in the circumstances. Mr. Descalchuk [ 60 ] Mr. Descalchuk testified that he is a good person. He is now 60 years old. He is a caregiver to two people. He testified that he too has incurred significant legal fees over seven years to deal with litigation relating to this matter. [ 61 ] Mr.

Descalchuk testified that Ms. Carnegie is no victim, but rather is the perpetrator of an elaborate story based on fake media posts. He stated: “I am the victim”. [ 62 ] Mr. Descalchuk testified that all of this began after he rejected Ms. Carnegie’s friendship in 2015. He testified that she made sexual advances toward him and he would not let her touch his penis. Since then, she has sought revenge because he wouldn’t let her come near him. Mr. Descalchuk testified that townspeople started telling him what she was, and that she was a troublemaker.

He also stated that she had said he built her a shitty deck and not to hire him. [ 63 ] Mr. Descalchuk said that he was ostracized due to Ms. Carnegie’s allegations that he was a danger to children. He said she started stalking him and two men made death threats to him in the local IGA due to her posts. He also testified that he taught karate to children and his karate instructor defended him regarding the allegation that he was a danger to children because the instructor knew Ms. Carnegie was lying. [ 64 ] Mr. Descalchuk testified that he has never been a danger to Ms.

Carnegie or her daughter; he just wanted to get away from her. Ms. Carnegie was bothering him and now she is making up stories that he’s calling her a “crack whore”. She is the cause of the issue; he left Fairview in 2018 as she was causing all the trouble. He agreed to enter into the mutual Restraining Order. Mr. Descalchuk testified that he has done nothing to Ms. Carnegie since he left Fairview.

He wasn’t even around when she said some of this stuff happened; she’s pretending to be a victim. [ 65 ] In cross-examination, counsel asked why he continued to post defamatory and derogatory posts on Facebook and YouTube after the 2018 mutual Restraining Order. He said it was because Ms. Carnegie is a “crack whore”, and because she put on Facebook that he is a danger to be around children. He said she needs to be exposed as a neighbourhood bully. [ 66 ] With respect to his post that “I have made the crack whore a laughing stock in the community”, he said “I may have phrased that wrong”.

He said there is a growing movement against Ms. Carnegie in the community and she has already made herself a laughing stock. Mr. Descalchuk said he is letting the community take care of humiliating her and he has nothing to do with it anymore since he moved away in 2018. He was making fun of her, not humiliating her, “’cause she called me a fucking pedophile”. He said she fabricated all of the sexual pictures he is accused of posting. [ 67 ] Mr. Descalchuk testified that he heard there was a group of 47 people who “want her evicted”, which group has now grown to over 100.

He is not a part of this group, but he said he talked to people who are in this group when he went to a potluck dinner. He explained that the topic of conversation was Ms. Carnegie and a group started; they’re just keeping it quiet; they are just people who tell people. He knows this through random gossipy reports. When asked whether his goal is to humiliate Ms. Carnegie, he stated that the community is humiliating her and everyone knows she is out of control. [ 68 ] Mr.

Descalchuk said that he has a TikTok account, two Facebook pages (under his name and under the pseudonym William Shakes-Beer), and a YouTube account. He also has a private Instagram account, adding: “but they keep sending pictures of little girls”. [ 69 ] He denied having made the posts on his Facebook page that were the subject of the oral hearing before Shelley J. including: “Amber Carnegie is back to her drug diggity ways. Purple nose of that mutt says it all, whoring out the 12-year-old to pay for drugs”; “Lexie asking for a hundred dollars like her mama told her”.

He said he admitted in Court to posting stuff online but did not say what he was posting. [ 70 ] With respect to a post on February 17, 2020 containing a photo with the caption “this is called a crack whore. There’s nothing that says this is attractive ... she’s taking a shit or casting a spell!”, he stated that Ms. Carnegie fabricated this to make herself look like a victim.

[ 71 ] A number of videos were entered into evidence. [ 72 ] Mr. Descalchuk was questioned with respect to a February 2021 video referring to a developmentally delayed lawyer, and a crack whore in Fairview who took issue with a suggestive picture he posted that she says is of her daughter. He did not recall admitting under oath that he said by “developmentally delayed lawyer”, he was referring to Ms. Carnegie’s counsel, Ms. Erickson. [ 73 ] Mr. Descalchuk was asked about a May 21, 2021 video entitled “the Good Life”. He was asked if he recalled stating: “fuck her, this fucking cunt is going down”.

He said this was probably Ms. Carnegie posting online. When asked if she would have posted a video of him speaking, he responded that if it is a video, he “won’t deny that part – it is probably part of my sexy gardening videos”. In the video, he also states: “and I gotta go collect that $2400 from that lawyer; you don’t take money from me...nobody fucks with me...if you’re scared, be fucking scared, I don’t quit, I do not quit; someone calls me a pedophile, I do not quit”.

He also stated in that video that he had finished off his second Indian poor treatment lawsuit so he had more money coming in and still had his second installment of the Sixties Scoop. [ 74 ] He was also questioned with respect to a July 8, 2021 video on TikTok in which he stated: “for the past two years I’ve been posting [...] erroneous and fake Facebook posts and just driving this fucking woman insane”. He also stated in the video: “She’s a fucking whore – a crack whore”, and other sexually derogatory comments.

When asked whether he recalled making this video, he stated: “I’ve made lots of videos – who gives a shit, who cares”. When asked if this referred to Ms. Carnegie, Mr. Descalchuk replied he did not know to whom he was referring, “if Ms. Carnegie thinks it’s about her, then it’s about her, if you want to believe that”. He agreed that he refers to her as “crack whore”, “based on the town coined the term ‘crack whore’”. [ 75 ] He was asked about a video posted on August 4, 2021 on TikTok, and agreed he was probably referring to Ms.

Carnegie and his litigation in this video. [ 76 ] In a video posted on August 20, 2021 on Tik Tok, Mr. Descalchuk stated: the crack whore is making up stories, embarrassing the court, the cops and herself; she’s a community whore; for six and a half years he was harassed by a whore; she’s a nasty fucking ass and whore; be careful. In Court he stated he was pretty sure he was referring in that video to Ms.

Carnegie. [ 77 ] He was asked about a video posted on August 25, 2021 in which he discussed a ban on his social media account, his complaint against the RCMP, and in which he stated “native indigenous man gets in trouble, white woman gets to walk free...cops coming after me, have fun”; “dealing with a little bit of an issue right now, I have a lawyer working on it, do you know that a crack whore can make up any story she wants ... and if you’re indigenous, they’ll believe her over you”. When asked which white woman he was referring to, he responded any white woman and “if Ms.

Carnegie wants to believe it’s her, go for it”. He said that she and her friends were freaking out when he puts up posts and were trying to get it shut down as against community standards; it gets reviewed and re-posted. He refers in the video to his lawyer; he thought he possibly had a lawyer at the time. When asked if “crack whore” referred to Ms.

Carnegie, he stated: “if she wants to believe she’s a crack whore, it probably refers to her then”, adding “can you prove it?”. [ 78 ] In a video from September 13, 2021, he stated “there’s a whore who found my Facebook page and she is reporting it with her...dumb heffer friends, like we’re talking about cows, bovine...yeah, cows”. [ 79 ] Counsel asked Mr. Descalchuk if he continued to make videos about Ms. Carnegie after Shelley J.’s Restraining Order. He responded: “Maybe some of them are about her – I know a lot of crack whores”.

When asked whether his posts regarding a “crack whore” are intended to refer to Ms. Carnegie, he responded that there are lots of crack whores out there, and it doesn’t necessarily refer to her. [ 80 ] Counsel asked Mr. Descalchuk if he has obeyed the Restraining Orders. He said he has to “listen to paper from court”, but he doesn’t have to respect it. When asked if he did not respect the Court, he stated: “I’m not disrespecting the court, I’m disrespecting that thing over there”, motioning toward Ms. Carnegie. [ 81 ] Mr. Descalchuk said nobody knows who this is about, it’s just about a crack whore.

He said the videos are “freakin’ dead hilarious”; “crack whore” is just the funniest word, and he didn’t use her name; he’s allowed to say “crack whore” without it referring to somebody; no one knows who it is about. [ 82 ] Mr. Descalchuk was asked about any outstanding claims he has against the RCMP. He stated that he made two complaints, including a human rights complaint “because they kept coming after me”. He stated that Ms. Carnegie was making the RCMP her bully. He does not respect the RCMP anymore, except for two officers. [ 83 ] When asked whether he will stop his campaign against Ms.

Carnegie, he said nothing will stop him until his reputation is cleaned up - then he may stop. He said nobody steps on his credibility, integrity, or character. He said: “You can’t say someone’s a pedophile when you’ve only known a person for 5 minutes; she did it and now she’s on the hook; there are 100 people who are going to destroy her who want her to move”. He added: “her kid doesn’t know anything about this”. [ 84 ] Mr. Descalchuk testified that he has no remorse for “that thing right there”, again motioning toward Ms. Carnegie. He has no intention of retracting any of his posts or videos disparaging Ms.

Carnegie. He is going to double them up next month, give them to the community and let them put it online. [ 85 ] During the hearing, Mr. Descalchuk sometimes became agitated and raised his voice, but when reminded, he was able to self- regulate and at one point he apologized to the Court. Ms. Carnegie - recalled [ 86 ] Counsel recalled Ms. Carnegie to address Mr. Descalchuk’s allegations that this all started when Mr. Descalchuk rejected Ms. Carnegie’s sexual advances and that she had sent people to kill him.

[ 87 ] Ms. Carnegie adamantly denied having ever made any sexual advances toward Mr. Descalchuk. She also denied having threatened, hired or encouraged anyone to harm Mr. Descalchuk. Ms. Carnegie denied ever having said to Mr. Descalchuk: “I’ll get you – I’ll show you what I can do”. She repeated that she has not posted anything about him since the mutual Restraining Order was granted in 2018. [ 88 ] When Mr.

Descalchuk was invited to cross-examine her on the allegation that she made a sexual advance toward him, he started making a statement about an occasion when she allegedly bent down to “go and do her oral sexual act” and he could see down her top. The Court asked him to formulate a question. [ 89 ] Mr. Descalchuk then put to Ms. Carnegie that on an unknown date, they were supposed to be filling up water balloons and Mr. Descalchuk said he needed her in the back room and she responded “my husband doesn’t mind sharing”. He said this was the sexual advance he was referring to.

She denied that exchange ever took place. He did not put to her his earlier allegation that he would not let her touch his penis, nor that she was attempting to do an “oral sex act”. Positions of the Parties Ms. Carnegie [ 90 ] Counsel for Ms. Carnegie submits that she was an upstanding member of her small community of Fairview, which has a population of approximately 3,000 people. Rather than take appropriate steps to deal with his own alleged claims against her, Mr. Descalchuk began an online smear campaign against her and her young daughter, including suggestions that Ms.

Carnegie is a drug user and/or dealer and that she was prostituting her young daughter. [ 91 ] Dozens of defamatory statements were published on Facebook through Mr. Descalchuk’s personal Facebook account and on the public Facebook forum entitled “Crack Whores Are On The Loose” and could be viewed by anyone with an internet connection, though only members of the page could post or comment. Statements were also published on YouTube and TikTok and could be viewed by anyone with an internet connection. Mr. Descalchuk used photos of Ms. Carnegie and her child in his defamatory Facebook posts and used their names.

He also made posts with pictures of Ms. Carnegie’s home and included her address. [ 92 ] As a result of the defamation, Ms. Carnegie has suffered significant harm as outlined in her evidence. Mr. Descalchuk’s post in May 2020 demonstrates that his intention was to humiliate her and to make her “a laughing stock in the community”. Mr. Descalchuk has never apologized for the defamatory statements and has continued his activity despite the indefinite Restraining Order, being careful to avoid using names. [ 93 ] Counsel notes it was Mr. Descalchuk who started this action by filing a claim for defamation against Ms.

Carnegie. He has been arrested twice for breaching the Restraining Orders against him. He filed multiple applications against Ms. Carnegie with no evidence in support. He used the Court as his own personal platform for his vendetta against Ms. Carnegie. For example, he told DeWit J. during the Restraining Order proceedings that he was posting comments to get Ms. Carnegie into court. He made derogatory hand gestures when the parties were in Court for the oral hearing in March 2021 and during this oral hearing. [ 94 ] Counsel for Ms.

Carnegie relies on s. 2(2) of the Defamation Act , RSA 2000, c D-7 which provides that when defamation is proved, damages shall be presumed. [ 95 ] Counsel submits that general damages of $100,000 would be consistent with other cases, citing Hategan v Farber , 2021 ONSC 874 at para 146 (general damages of $100,000 for defamation, invasion of privacy, and appropriation of the plaintiff’s personality and likeness), Elkow v Sana , 2018 ABQB 1001 and 2020 ABCA 350 (general damages of $150,000), Engel v Edmonton Police Association , 2017 ABQB 495 (general damages of $50,000). [ 96 ] Counsel submits that aggravated damages of $50,000 are appropriate as Mr.

Descalchuk was motivated by malice and he used social media platforms to obtain the widest possible publicity. His Originating Application for defamation was in retaliation against Ms. Carnegie for the indefinite Restraining Order against him which she had obtained on March 17, 2021. [ 97 ] Counsel submits that punitive damages of $50,000 are also called for as Mr. Descalchuk’s misconduct is so malicious, oppressive and high-handed that it offends the Court’s sense of decency, citing Huff v Zuk , 2019 ABQB 691 , aff’d 2021 ABCA 60 . Restraining orders, costs awards and arrests have not sufficed to stop Mr.

Descalchuk’s behaviour and he has testified that he has no intention of ceasing. Mr. Descalchuk [ 98 ] Mr. Descalchuk argued that no damages are warranted. He says this all amounts to death threats against him and the childish actions of a 40-year old woman, taking pictures off of social media and saying they are Mr. Descalchuk’s; she is out to get him; it is a made up story. [ 99 ] Mr. Descalchuk conceded that he did call Ms. Carnegie a bad name but said that she threatened to kill him. Mr.

Descalchuk then said he did not know if she sent the people who threatened him, but she put it on a public Facebook page that he was a danger around children. [ 100 ] With respect to the nature and seriousness of his defamatory statements, he said: “it is just a big joke in the community”. [ 101 ] With respect to whether the defamatory statements were made in a context in which they were likely or unlikely to be believed, he stated that everyone believes something about somebody.

[102] With respect to the impact of Mr. Descalchuk’s stature and reputation on whether the statements are less or more likely to bebelieved he stated that people will believe anything they want to believe when it is negative. He added that the court proceedings havelowered his integrity and credibility. [103] With respect to whether he has made any retraction or apology after making the statements, he stated that he is having aproblem as she swore a false, fake affidavit and the posts are not his. [104] Mr.

Descalchuk submitted that he has little means to pay damages as he has been on WCB since March 2019, has had kneesurgery and is awaiting further surgery. He pays for a credit card bill and a phone bill. He gives any other money he receives to his friendwith whom he lives for her expenses. He says his friend lost $200,000 in a romance scam. He received money from the Sixties ScoopSociety which he gave to this friend to repair her house.

Decision [105] Words have consequences. [106] In Alberta, where statute creates a presumption of damage when defamation is proved, the defamatory words will almostinevitably have monetary consequences.

General Damages [107] The purpose of an award of general damages is to compensate and console the plaintiff for loss of reputation and injury to theplaintiff's feelings, and to vindicate the plaintiff so that the plaintiff's reputation may be re-established: Dingle v Associated NewspapersLtd, [1964] AC 371 at 398 (HL); Walker v CFTO Ltd (1987), (ON CA), 59 OR (2d) 104 at 111 (CA). [108] The assessment of damages in each case must account for a myriad of idiosyncratic factors particular to the parties, themisconduct in question and the conduct of the litigation: Rutman v Rabinowitz, 2018 ONCA 80 at para 100. [109] In Hill v Church of Scientology of Toronto, (SCC), [1995] 2 SCR 1130, the Supreme Court set out the types offactors to be taken into account in assessing general damages for defamation: (1) the plaintiff’s conduct, (2) the plaintiff’s position andstanding, (3) the nature of the defamatory statement, (4) the mode and extent of publication, (5) the absence or refusal of any retractionor apology, and (6) the conduct of the defendant from the time when the libel was published down to the verdict.

The Supreme Courtexplained that the trier of fact is also required to take into account the evidence led in aggravation or mitigation of the damages. Conduct of Ms. Carnegie and her daughter [110] Evidence of conduct of the plaintiff may be admissible to reduce damages if it is directly relevant to the background and contextof the publication complained of: Burstein v Times Newspapers Ltd, [2000] EWCA Civ 338.

Where the defamatory material was inretaliation to a prior defamation of the defendant by a claimant, the claimant will normally receive a lower award of damages than aclaimant who has been defamed without provocation. [111] The evidence establishes that the relationship between Mr. Descalchuk and Ms. Carnegie broke down in 2015. [112] Mr. Descalchuk’s stated theories as to his understanding of Ms. Carnegie’s motivation behind her criticism of him have variedover time. [113] In an affidavit dated March 3, 2021 in response to Ms. Carnegie's Restraining Order application, he deposed that Ms.

Carnegiehad encouraged him in 2015 to apply to a restaurant owned by her friends in Grimshaw, he left the job as it was not a suitable job forhim, and thereafter Ms. Carnegie started posting on Facebook public pages and spreading gossip, defaming and slandering him. Therewas no mention of this during the oral hearing. Nor was there any suggestion in the March 3, 2021 affidavit that Ms. Carnegie had madeany sexual advances toward Mr. Descalchuk. [114] In an affidavit of July 19, 2021, Mr. Descalchuk alleged that during a fundraiser for the karate club in 2015, Ms.

Carnegie hadmade it clear she wanted to be more than friends at which time he made it clear he did not want to have that type of relationship with her.He told other members of the club what had happened and Ms. Carnegie told him, “I'll show you what I can do". [115] In his affidavit of April 14, 2022, he deposed that she had asked in 2015 why he did not want to be her friend, he told her to getthe “expletive” away from him, and she said “I’ll get you.

I’ll show you what I can do!!!” As well, he deposed that he rejected herfriendship and sexual advances and embarrassed her after mentioning her attempted sexual act to two parent members. [116] During this hearing, Mr. Descalchuk testified that Ms. Carnegie posted critical comments about him after he had built a deck.He also suggested she was intent on revenge because he had rejected her sexual advances. As outlined above, the sexual allegationsvaried, and when he was invited to put his allegation to her as a question, he suggested to her that she had made what he considered to bea suggestive statement to him.

Ms. Carnegie adamantly rejected any suggestion that she said this or had ever made any sexual advanceswhatsoever toward Mr. Descalchuk. [117] Mr. Descalchuk’s various allegations are not necessarily mutually exclusive. However, the changing focus of his allegationsover time, even during the hearing itself, and Ms. Carnegie’s evidence in relation to the parties’ history, left the Court unpersuaded ofMr. Descalchuk’s allegation that Ms. Carnegie embarked on a campaign against him to exact revenge for rejecting her sexual advances.The evidence left the Court with the impression that Mr.

Descalchuk was intentionally trying to further tarnish Ms. Carnegie through hisCourt testimony.

[ 118 ] Ms. Carnegie agreed that she posted comments about Mr. Descalchuk prior to the mutual Restraining Order in 2018 to the effect that he was a liar, people should not hire him, and that he was dangerous to be around children. The circumstances giving rise to those statements have not been the subject of thorough examination in any of the related proceedings. There is insufficient evidence before the Court to determine the precise events, or their sequence, that led to the parties’ mutual animosity. There is evidence that Ms. Carnegie posted hurtful comments about Mr.

Descalchuk prior to the mutual Restraining Order in 2018. However well founded or not some or all of those statements may have been, it is apparent that Mr. Descalchuk felt, and continues to feel, provoked by them. [ 119 ] However, Ms. Carnegie denied having threatened, hired or encouraged anyone to harm Mr. Descalchuk. She agreed to enter into a mutual Restraining Order in 2018. She has not posted anything about him since the mutual Restraining Order was granted in 2018. No credible evidence was presented that would undermine her evidence in this regard. [ 120 ] Mr. Descalchuk’s assertion that Ms.

Carnegie has been creating the posts about herself and her daughter and posting them under his accounts is illogical and not credible. It is also difficult to reconcile with his evidence and his videos referring to her attempts to shut down his social media due to the posts. [ 121 ] Although Mr. Descalchuk entered into the 2018 consent mutual Restraining Order, it is clear that he has become fixated on Ms. Carnegie, perceiving himself as a victim due to her pre-2018 statements about him and her steps to obtain and enforce Restraining Orders.

He continued to post defamatory statements, some of which were the basis for the 2021 indefinite Restraining Order. [ 122 ] In sum, while Ms. Carnegie and Mr. Descalchuk initially engaged in mutually acrimonious conduct, Ms. Carnegie ceased this conduct after the 2018 mutual Restraining Order, while Mr. Descalchuk persisted in his deliberate and persistent campaign of humiliation. [ 123 ] As for Ms. Carnegie’s daughter, there is no suggestion that she ever had any personal interaction with Mr. Descalchuk which might have provoked him to make derogatory posts about her. His posts started when she was 12 years old.

Mr. Descalchuk takes issue with a prior assertion by Ms. Carnegie that her daughter told her that Mr. Descalchuk had exhibited what she had perceived as stalking behaviour toward her. Even assuming the daughter misperceived an event, there is nothing in the evidence that would explain or in any way mitigate the damages in relation to Mr. Descalchuk’s posts attacking the daughter in the manner he did. Standing of Ms. Carnegie and her daughter [ 124 ] Ms.

Carnegie’s family appears to be held in high esteem in their community, as demonstrated by Outstanding Resident Award they received in 2019 for their contributions to life in Fairview. This was around four years after the animosity between the parties began. It supports a finding that the deterioration of the parties’ relationship had not negatively impacted Ms. Carnegie’s community standing, at least to that point in time. [ 125 ] I accept Ms. Carnegie’s evidence that humiliating rumours and gossip began to circulate in the community as a result of Mr. Descalchuk’s posts.

However, this case is unlike others in which plaintiffs’ professional reputations or potential career advancement were at stake. Ms. Carnegie testified to selling jelly at farmers’ markets and online business. She said her small business was affected by the defamation but no financial or other documentary evidence was provided. The evidence was insufficient to establish her revenues over the years or any probable loss to her business, nor that any such loss would be related to a decrease in her position and standing in the community. [ 126 ] Mr. Descalchuk asserts that the townspeople are out to get Ms. Carnegie.

Counsel referenced the Facebook post on Mr. Descalchuk’s page in May 2020: “...I have made the crack whore a laughing stock in the community. Humiliating her is better than what a lot of people would like to have happen to her!” Mr. Descalchuk also testified that there is a group of 47 people which has grown to 100 who want to “evict” Ms. Carnegie and spoke of negative bumper stickers. He stated that he was not involved in that group but had heard others talking. Mr. Descalchuk also testified that it is just a big joke in the community.

He opined that everyone believes something about somebody and people are ready to believe negative things about others. [ 127 ] Mr. Descalchuk is an unreliable and non-credible witness who appeared to tailor his testimony to inflict further distress on Ms. Carnegie. Although I accept that rumours and gossip may have circulated because of his posts, there is no objective evidence that townspeople have given any credence to his extravagant insults. [ 128 ] The more recent materials entered as evidence by Ms. Carnegie’s counsel are clearly intended to refer to Ms. Carnegie. Mr. Descalchuk is avoiding using her name.

The Court certainly does not condone these activities. However, while they are undoubtedly irritating and frustrating to Ms. Carnegie, those who are not familiar with the ongoing history of this matter would not necessarily relate the comments to her. [ 129 ] Mr. Descalchuk appears to have ceased attacking the daughter. However, his continued veiled posts regarding Ms. Carnegie and the litigation would give no comfort to Ms. Carnegie regarding whether her daughter might again become a target in the future.

The nature of the defamatory statement, the mode and extent of publication [ 130 ] The posted materials in evidence about Ms. Carnegie and her daughter are offensive, demeaning and misogynistic. To make matters worse, Mr. Descalchuk understood that Ms. Carnegie had recovered from an addiction and that she had been a victim of sexual abuse when she was young. He chose to label her “crack whore” and to suggest that she was pimping out her daughter for drugs. Mr. Descalchuk’s continuing comments over time with respect to Ms. Carnegie are consistently degrading. During the hearing, he referred to Ms.

Carnegie as “that thing over there”. [ 131 ] Mr. Descalchuk himself during the hearing before Shelley J. acknowledged that the posts regarding Ms. Carnegie’s daughter were disgusting. As was noted by Shelley J. in granting the indefinite Restraining Order, the tenor of the posts would lead anyone to reasonably fear for the safety of the daughter, particularly given her age and stage of development.

[132] Ms. Carnegie gave credible evidence about her injured feelings and the significant psychological impact of the statements onher and her daughter including humiliation, increased anxiety, depression and other symptoms. Ms. Carnegie has spent much time andmoney in attempting to stop Mr. Descalchuk from continuing his online activity.

She testified that she has reduced her volunteeractivities as a result of the defamation. [133] It has been held that damages may be reduced if the character or reputation of the defendant is such that reasonable personswould be unlikely to have given the defamation credit: McElroy v Cowper-Smith, (SCC), [1967] SCR 425 at 426. Inthat case, the Court held that it was obvious that the defendant was temperamentally unstable and given to making unreasoned andextravagant statements about the plaintiffs. [134] In terms of Mr.

Descalchuk’s character or reputation, there is nothing to suggest that his reputation in the community lends anyparticular credence to his defamatory statements about Ms. Carnegie and her daughter. The posts and videos in evidence can only becharacterized as extravagant hyperbole and are frankly so excessive and exaggerated so as not to be given serious consideration by rightminded individuals in the community. [135] In terms of the mode and extent of publication, the defamatory statements appeared as online social media posts.

Peter A.Downard, The Law of Libel in Canada, 5th Ed. (Toronto : LexisNexis, 2022) at §14.01 cites Whatcott v Canadian BroadcastingCorporation, 2016 SKCA 17 at paras 12-18 for the proposition that in the absence of evidence as to the extent of publication, the courtis limited to such conclusions as may be reasonable on the record, without engaging in speculation. At the same time, internetcommunications may be instantaneous and very far-reaching.

Publication on social media is accordingly a serious aggravating factor,regardless of the number of people who in fact accessed the posts: Rutman v Rabinowitz, 2018 ONCA 80 at paras 68-71. [136] Courts have taken into account the “percolation phenomenon” in the assessment of damages which recognizes that onlinedefamatory statements are easily passed around and can pop up if the subject’s name is put into a search engine by, for example, aprospective employer: Clarke (t/a Elumina Iberica UK) v Bain, [2008] EWHC 2636 at para 55 (QB).

This creates a very real potentialthat defamatory statements may circulate indefinitely. As was noted in Crookes v Newton, 2011 SCC 47 at paras 37-38, the internet hasthe extraordinary capacity to replicate any defamatory message almost endlessly, supporting the notion that “the truth rarely catches upwith a lie”. This creates a real risk that strangers unaware of the context of the statements may form a negative opinion of the persondefamed. This is a concern for any victim, and particularly for a young adolescent.

Canadian news in recent years has contained manyexamples of very devastating effects of online bullying on young persons. [137] It is not clear from the evidence before the Court how many people actually accessed the posts, and of those who did, howmany did so out of concern for and support of Ms. Carnegie and her daughter. Mr. Descalchuk’s claim during his testimony that there are100 people who are now intent on “evicting” Ms. Carnegie is unreliable and is likely an attempt to create further distress for Ms.Carnegie. Although Mr. Descalchuk’s comments about Ms.

Carnegie and her daughter are so excessive and exaggerated so as not to begiven serious consideration by right minded individuals in the community, the use of social media increases the risk of a negative impacton one or both of the plaintiffs. Absence or refusal of any retraction or apology [138] Mr. Descalchuk was questioned in cross-examination regarding retractions or apologies. He was adamant that he will not retracthis comments or apologize.

The Court explained to him that this is a factor which the Court will consider in assessing damages and askedhim again during his submissions whether he was open to providing an apology or retraction. Again, he was adamant that he would notretract anything, nor would he apologize. Conduct of the defendant from the time when the libel was published down to the very moment of theverdict [139] Counsel entered recent videos created by Mr. Descalchuk to which I have already referred. He testified that he will continue hiscampaign against Ms. Carnegie until he feels justice has been done.

Indeed, he testified that he would “double down” in the future. Thevideos which were entered into evidence in Court demonstrate that he remains fixated on insulting Ms. Carnegie although he now isrefraining from using her name. It is reasonable that Ms. Carnegie, knowing of this continued campaign, feels compelled to monitor andtake steps to address Mr. Descalchuk’s inappropriate posts given what he has posted in the past including his identification of Ms.Carnegie, her daughter and their address. Quantum [140] A recognized purpose of the award of general damages is the vindication of the plaintiff.

General damages are intended tomeasure the damage to the plaintiff's reputation and acknowledge that the allegations against the plaintiff are untrue: Elkow v Sana atpara 20 (CA). Even in cases where there has been no harm to reputation, the plaintiff is entitled to damages for emotional distress orannoyance: Morgan v Odhams Press Ltd, [1971] 2 All ER 1156 at 1163 (HL). [141] General damages should be such that the plaintiff can point to the amount awarded to demonstrate that the defamation wasunfounded if it is repeated or is the subject of subsequent inquiries: Cassell v Broome, [1972] AC 1027 at 1071 (HL).

In other words, itshould be sufficient to bring clearly to public attention the fact that the allegations were unwarranted, and that no lawful excuse formaking them existed: Westbank Indian Band v Tomat (1992), (BC CA), 88 DLR (4th) 401 at 411 (BCCA), supp.reasons (BC CA), 94 DLR (4th) 453 (BCCA), leave denied [1992] SCCA No 149. [142] I have set out the evidence and the various factors to be considered, including the genesis of the situation, the proceduralhistory, the nature and impact of the defamatory statements, the mode of publication, Mr.

Descalchuk’s ongoing conduct and the absenceof a retraction or apology.

[ 143 ] Significantly, although Ms. Carnegie engaged in posting negative comments about Mr. Descalchuk prior to 2018, she has since done nothing further which could be interpreted as provoking Mr. Descalchuk who has continued his vindictive campaign against her despite Restraining Orders. [ 144 ] As for the daughter, it appears that Mr. Descalchuk has ceased posting about her. It also appears that she has not had to see or read the posts in question and that her mother has been careful to shelter her from the defamatory information to the extent possible.

However, she was an innocent victim and particularly vulnerable given her age, and the evidence establishes that the existence of the posts and the Restraining Orders have affected her. [ 145 ] Courts have often observed that defamation cases are fact-sensitive and unique and that there is little to be gained from a detailed comparison to other decisions. Nevertheless, it is instructive to consider other cases to determine a reasonable range.

The following authorities provide some relevant context: - Varga v Van Panhuis , 2000 ABQB 538 - the defendants circulated a letter to most of the households in the town alleging a councillor running for re-election was corrupt.

Although there was no evidence of “social” or “pecuniary” damage, the Court awarded $5,000 in general damages to vindicate the plaintiff and compensate for his injured feelings. - Rodrigues v Rodrigues , 2013 ABQB 718 - the defendant lawyer posted over several months on the internet and e-mailed Alberta parishes false allegations that the plaintiff priest had sexually molested a 13-year-old girl in India.

The posts were deeply hurtful to the plaintiff, went to the core of his integrity, undermined parishioners’ trust in him, directly affected his ability to perform his duties, and resulted in his withdrawal from social contact and fear of wrongful conviction. The posts were widespread, repeated, generated negative postings from others, were made after the plaintiff was cleared by the police, and continued despite requests for an apology and retraction. The Court awarded $75,000 in general damages. - Pinsent v.

Sandstrom , 2014 ABQB 269 - the defendant published by email defamatory words against business associates alleging fraud.

The general damages ranged from $20,000 to $45,000. - Kumar v Khurana , 2015 ONSC 7858 , aff’d 2017 ONSC 3386 (Div Ct), general damages of $15,000 were awarded where the defendant published comments about the plaintiff, a retired immigration consultant, on Facebook describing him as an extortionist who was obsessed with becoming a millionaire. - Pritchard v Van Nes , 2016 BCSC 686 , a dispute between two neighbours over a fish pond on one’s property led to Facebook postings suggesting one neighbour – a teacher - was a pedophile, leading to professional and personal consequences for the plaintiff and his family.

The Court awarded $50,000 in general damages. - Kazakoff v Taft , 2018 BCCA 241 , a post alleging the plaintiff was a convicted felon and unworthy of belief was retracted after nine days. The Court awarded $25,000 in general damages. - Huff v Zuk , 2019 ABQB 691 , aff'd 2021 ABCA 60 , one dentist made unfounded allegations against another, including of inappropriate touching of patients. There was no evidence the plaintiff’s career had suffered as a result, but the defamatory statements had potential to do significant damage to professional reputation and career.

The Court awarded $50,000 in general damages. - Grochowski v Young , 2019 ONSC 326 , a letter to the editor was published over a weekend by The Sarnia Observer referencing a reputable doctor prescribing addictive medication to a person without close supervision while working in a busy emergency room.

The Court awarded general damages of $12,500. - Hall v Razutis , 2019 BCCA 341 , the trial judge awarded general damages of $7,500 for statements asserting the plaintiff was corrupt and had engaged in criminal conduct in relation to participation in community organizations. - Rashedi v Johar , 2019 MBQB 145 , the defendant spread a false rumour that a graduate student was in a sexual relationship with her supervisor. She ultimately transferred to another University because of the shame and damage to her reputation.

The Court awarded $20,000 in general damages. - Simon v Poirier , 2019 YKSC 56 , the Court awarded $20,000 in general damages for Facebook posts about a social worker in a relatively small community having committed perjury, assault, unprofessional conduct, and being “easy” and unfaithful, leading to some negative personal and professional consequences. - Chak v Levant , 2021 ABQB 946 , the Court awarded $40,000 in general damages where the defendant television host had alleged in a broadcast that the plaintiff, who had run as a political candidate, had “shot up a nightclub”.

The broadcast reached several thousand people and was online for some time. [ 146 ] In this case - unlike other defamation cases where the plaintiff’s profession, career or livelihood has been threatened or affected - the most significant impact has been in the form of personal distress to Ms. Carnegie and her daughter. [ 147 ] Given all of the circumstances of this case as outlined above, it is appropriate to award $15,000 in general damages to Ms. Carnegie, and $7,500 to Lexie Carnegie.

Aggravated Damages [ 148 ] The Supreme Court in Hill at paras 188-89 held that aggravated damages may be awarded where the defendant is guilty of insulting, high-handed, spiteful, malicious or oppressive conduct which increased the mental distress (humiliation, indignation, anxiety, grief, fear, etc.) suffered by the plaintiff as a result of being defamed. These damages take into account the additional harm caused to the plaintiff's feelings by the defendant's outrageous and malicious conduct. They are compensatory in nature and the court must assess the

entire conduct of the defendant prior to the publication through to the conclusion of the trial. [149] In Elkow v Sana, the plaintiff school principal suffered a sustained and unjustified attack in her professional capacity, includingallegations of impropriety against children, which impeded her prospects of further promotion. The Court of Appeal set aside aggravateddamages on the basis that there was no finding that the plaintiff’s injury was increased by the identified conduct, over and above theinjury that was recognized in the award of $150,000 in general damages.

The Court commented that the mere fact that there was a failureto apologize and the identification of “aggravating factors” did not support an award of aggravated damages in that case. [150] In Focus Graphite Inc v Douglas, 2015 ONSC 1104, the Court awarded $10,000 in aggravated damages as result of thedefendant's attempt to circumvent a website's suspension of initial postings by adopting new username so that he could continueattacking the plaintiff. [151] In this case, there is clear evidence of malice. Mr.

Descalchuk stated in a Facebook post in May 2020: “...I have made the crackwhore a laughing stock in the community. Humiliating her is better than what a lot of people would like to have happen to her!” [152] In his July 8, 2021 video on TikTok, he stated that he had been posting erroneous and fake Facebook posts for the past twoyears and “just driving this fucking woman insane”. It is noteworthy that this was after two successful Restraining Order applicationsagainst him, the second of which resulted in an indefinite Restraining Order.

When asked whether he recalled making the July 8, 2021video, he stated: “I’ve made lots of videos – who gives a shit, who cares”. Based on the content of the video and all of the evidence it isreasonable to conclude that Mr. Descalchuk was referring to Ms. Carnegie. [153] These posts which expressly state Mr. Descalchuk’s intention to humiliate and aggravate Ms. Carnegie despite the indefiniteRestraining Order, and his persistent making of “crack whore” posts, continue to exasperate Ms. Carnegie and add to her anxiety forherself and her daughter.

They constitute additional “salt rubbed in the wound”: Henry v News Group Newspapers Ltd, [2011] EWHC1058 at para 7 (QB). [154] It is clear from Ms. Carnegie’s evidence that the ongoing intentional and malicious campaign to humiliate and provoke her andto undermine her character has added to her distress beyond the original defamatory postings of the type that were the subject of theRestraining Orders. Notably, Mr. Descalchuk’s past and ongoing conduct reasonably compels Ms.

Carnegie to monitor his posts out offear that he will again make vulgar posts identifying her and her daughter, and to take further steps to try to put an end to his vindictivecampaign. [155] In sum, Mr. Descalchuk's conduct has been particularly outrageous and malicious. His overall conduct has increased Ms.Carnegie's mental distress beyond the distress caused as a result of the initial defamatory postings. Unlike the case of Elkow, the generaldamages award in this case does not address this further aggravating conduct. [156] In the circumstances, it is appropriate to award to Ms.

Carnegie aggravated damages of $15,000. Punitive Damages [157] Punitive damages are to be granted only in exceptional cases. The purpose of punitive damages is to punish the defendant. Theymay be awarded in situations where the defendant's misconduct is so malicious, oppressive and high-handed that it offends the court'ssense of decency: Hill at para 196.

They are intended to achieve specific and general deterrence from similar conduct in the future: Walker v CFTO Ltd (1987), (ON CA), 37 DLR (4th) 224 at 240 (Ont CA). [158] In Huff v Zuk at para 289, the Court declined to award punitive damages since the defendant's conduct failed to offend thecourt's sense of decency. [159] Mr. Descalchuk has used social media platforms to wage a vindictive campaign against Ms. Carnegie, dragging her daughterinto the matter in the process.

His misconduct is so malicious, oppressive and high-handed that it does offend the court's sense ofdecency, particularly in light of his post-publication activities.

He appears to have no appreciation for the gravity of his conduct. [160] However, punitive damages should only be awarded in those circumstances where the combined award of general andaggravated damages would be insufficient to achieve the goal of punishment and deterrence: Whiten v Pilot Insurance Company, 2002SCC 18 at para 94. [161] In Elkow, the Court of Appeal set aside punitive damages since the original award of substantial general damages, aggravateddamages and costs was sufficient to achieve the goal of punishment and deterrence, especially for a defendant of limited means. [162] The Court must consider the punitive effect of any general and aggravated damages prior to awarding punitive damages.

In allof the circumstances, the combined general and aggravated damages awarded do constitute a punitive award against Mr. Descalchuk.

Summary of Damages [163] Ms. Carnegie is awarded $15,000 in general damages and $15,000 in aggravated damages. [164] Lexie Carnegie is awarded $7,500 in general damages. [165] To be abundantly clear, these damages address defamation which has occurred up to the

summary judgment and take intoaccount Mr. Descalchuk’s overall conduct up to and including the assessment of damages hearing. [166] Should Mr. Descalchuk make future defamatory postings or other communications regarding one or both of the plaintiffs, it is

open to them to take whatever further legal steps may be available to address such posts or communications. Injunctive Relief [ 167 ] Injunctive relief is ordered in some defamation actions where it is likely the defendant will continue the behaviour, or enforcement of a damage award may be unsuccessful. [ 168 ] The Court has already granted an interim order requiring Mr. Descalchuk to obtain leave of the Court prior to filing any pleadings naming Ms. Carnegie as a defendant or respondent. [ 169 ] As well, Mr. Descalchuk remains subject to the indefinite Restraining Order of October 23, 2020.

That Order prohibits him, among other things, from posting “any information with respect to” Ms. Carnegie or her daughter and requires him to remove any and all postings with respect to them. [ 170 ] Breach of the indefinite Restraining Order is not squarely before the Court in this action. However, it was clear from Mr. Descalchuk’s testimony that he typically refers to Ms. Carnegie as “the crack whore”. He did, in fact, admit that he was referring to Ms. Carnegie in some of the more recent videos.

His testimony to the effect that “crack whore” could refer to anyone and he knows a lot of crack whores was unconvincing. Completely aside from the issue of whether such postings are defamatory, his references to “the crack whore” in the videos in evidence before the Court constitute “any information with respect to” Ms. Carnegie and are subject to the prohibition on posting and the requirement to remove postings. As the injunction in the indefinite Restraining Order addresses this activity as well as any defamatory material explicitly identifying Ms. Carnegie, no further injunctive relief is required.

Costs [ 171 ] The plaintiffs have already been awarded costs for the

summary judgment application in chambers on the issue of liability. [ 172 ] The parties may provide written submissions regarding any additional costs in relation to the oral hearing on assessment of damages within 45 days of the date of this decision. Heard on August 10, 2022. Dated at the City of Grande Prairie, Alberta on October 28, 2022. J. A. Fagnan J.C.K.B.A. Appearances: M. Erickson for the Plaintiff W. Descalchuk Self-represented _______________________________________________________ Corrigendum of the Reasons for Judgment

of The Honourable Justice J.A. Fagnan _______________________________________________________ At paragraph 168, the word “interim” was added before “order”.