Gordić v. Vidović, 2014 BCSC 1897

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Gordić v. Vidović, 2014 BCSC 1897 Date: 20141023 Docket: S106912 Registry: Vancouver Between: Mijodrag Gordić, also known as Mitch Gordić, Miladin Gordić, also known as Mike Gordić, and Peter Vladikovic, also known as Predrag Vladikovic, also known as Peter Vanagan Plaintiffs And Desimir Vidović and Radomir Buhač Defendants Before: The Honourable Mr. Justice Burnyeat Reasons for Judgment (from Trial) Counsel for the Plaintiffs: D.W. Burnett, Q.C. Counsel for the Defendants: J.S. Piamonte Place and Dates of Trial: Vancouver, B.C.

April 22-25, May 5-6, October 3, 2014 Place and Date of Judgment: Vancouver, B.C. October 23, 2014 [ 1 ] The Plaintiffs claim damages against the Defendants on the basis that certain statements made by the Defendants constitute defamation at law. [ 2 ] The Amended Notice of Civil Claim sets out the following regarding the Defendant, Radomir Buhač: (

a) On or about May 9, 2010, at a meeting of members of the St. Archangel Michael Serbian Orthodox Church and other non- member spectators, the Defendant Radomir Buhač made the false and defamatory statements that or to the effect that the members of the church construction committee were, in Serbian, “lopovi,” which translates to “thieves,” and, further, in Serbian, “that it was time to kick them out of the Church,” and, that the Plaintiffs had “brought the church to the brink of collapse” and “What will happen in ten years, little more, when it sinks? They will buy it in Dinik’s recipe, as cheaply as possible, let’s grab this.” (

b) The audience to whom these statements were made understood that the “members of the church construction committee” referred to the Plaintiffs, as they were well known among members of the said Church to comprise the church construction committee. (

c) These statements meant, in their natural and ordinary meaning that the Plaintiffs are dishonest, criminals, untrustworthy, and unworthy of their positions with the St. Archangel Michael Serbian Orthodox Church, and that they had done serious harm to the church. These Statements constituted libel per se . (

d) The defamatory statements made by the Defendant, Radomir Buhač, were made with express malice and intent to harm the Plaintiffs. The Plaintiffs have given the Defendant, Radomir Buhač, an opportunity to retract and apologize for his false and defamatory statements, but he has refused to do so. [ 3 ] The Amended Notice of Civil Claim sets out the following regarding the Defendant, Desimir Vidović: (

a) At the same meeting, the Defendant Desimir Vidović made the false and defamatory statement that or to the effect that, the Plaintiff Miladin Gordić was an “enemy of the church,” or “neprijatelji crkve”, and “I will certainly send all those names to the eparchy, so they know who here is against our Serbian Orthodox Church” in the Serbian language, and that he intended to recommend to the Archbishop that the Plaintiff Miladin Gordić be expelled from the church. (

b) These statements meant and were understood to mean that the Plaintiff Miladin Gordić is immoral, corrupt, and unworthy of his position with the St. Archangel Michael Serbian Orthodox Church or even of being a member of the church. These statements constituted libel per se .

(

c) The defamatory statements of the Defendant, Desimir Vidović, were made with express malice and intent to harm the Plaintiff Miladin Gordić. The Plaintiff Miladin Gordić has given the Defendant, Desimir Vidović, an opportunity to retract and apologize for his false and defamatory statements, but he has refused to do so. (

d) As a result of the alleged defamation, Plaintiffs state that, as members of the Serbian community within their church and city, have suffered and continue to suffer harm to their reputations as well as embarrassment and anguish over the false and vicious defamatory statements described herein. [ 4 ] The Defendants provide this response to the Amended Notice of Civil Claim: (

a) Neither of the Defendants made the statements attributed to them and both Defendants deny that they published the words attributed to them. (

b) The Defendant, Radomir Buhač, denies that the words complained of, or the words that were actually stated by him, meant, or were understood to mean, or were capable of the meanings alleged or of any meaning defamatory to the Plaintiffs, by innuendo or otherwise. (

c) The Defendant Desimir Vidović denies that the words complained of, or the words that were actually stated by him meant, or were understood to mean, or were capable of the meanings alleged or of any meaning defamatory to the Plaintiffs, by innuendo or otherwise. (

d) The Defendants deny that the words complained of referred to, or were understood to refer to, or were capable of being understood to refer to the Plaintiffs. (

e) Neither Defendant was actuated by malice against, or intended to cause harm to the Plaintiffs or any of them, as alleged or otherwise. (

f) The words actually spoken by each Defendant on the occasion of a church assembly meeting May 9, 2010 to were true in substance and fact. Particulars are as follows: a. the Defendant Desimir Vidović stated that certain new church bylaws proposed by certain members of the congregation which was the subject of the meeting, had been sent to the Serbian Orthodox Diocese of Canada for comment. He stated that the reply received from the Diocese was that the proposed bylaws were not in accord with the statutes of the Serbian Orthodox Diocese of Canada or of its U.S.A. counterpart.

The said Defendant in his capacity as the Priest, said that names of persons who, (thus informed), persist in contravening the statute of the Serbian Orthodox Church would have to be sent to the Diocese so they are aware of who oppose its tenets. b. in his position as priest, the Defendant Desimir Vidović further voiced concern and regret that a number of the people wishing, apparently, to lead the congregation against the tenets of the church, would stoop to cursing the Bishop and disrespecting other members of the congregation, all of which was extremely inappropriate behaviour in a church. c. the Defendant Radomir Buhač supported the existing church Bylaw signed by the late Patriarch Pavle, a patriot and a saint.

He stated that the new proposal being advanced would put its proponents above the Patriarch and at odds with the dictates of the church. The Defendant Radomir Buhač further complained that the proponents were splitting their community, and admonished them for (physically) fighting in the church, for cursing fellow church members, its priest, and even its Bishop.

He said that persons wishing to take control of the church against the tenets of their faith, (some of whom presided over the building of the church suffering many defects, leaks, cracked foundation), should be expelled from the church as they appear motivated by self-interest rather than church interest and do not belong there. (

g) The words actually stated by each of the Defendants were voiced by them on a privileged occasion being a specially convened church assembly of members of the congregation and parties interested in the scheduled deliberations. a. each Defendant, as a member of the church congregation, was under a moral and social duty (and in the case of the Defendant Desimir Vidović, a contractual and fiduciary duty) to communicate their views to the attendees who had a corresponding duty to receive, or interest in, receiving them; b. the Defendants stated the words as a reasonable and necessary protection of their interests as members of the congregation, and that of their church and their views were communicated bona fide, and without malice, to help the church. (

h) The opinions communicated by each Defendant at the church assembly meeting on May 9, 2010 constitute fair comment on a matter of public interest, recognizable as such by the ordinary reasonable person. They, specifically, were participating in a debate of the future management, control and direction of the church, based on facts that are true and stating opinions that some persons could honestly express on the basis of those facts.

Particulars are as follows: a. the forum of the meeting was a specially convened church assembly to discuss church bylaws, attended by members and others interested in the scheduled exchange of views; b. the proposed bylaw represented a radical departure from the long established bylaw adopted by the church and from established church doctrine; c. in addition, the conduct of certain of the Plaintiffs cursing and (physically) fighting in church called into question whether they belonged in a church at all. (

i) The Defendants further state that if they have defamed the Plaintiffs or any of them, which is not admitted but expressly denied, the Defendants plead the provisions of sections 6 and 7 of the Libel and Slander Act , R.S.B.C. 1996, c. 263 on the basis that: their words

were stated in good faith; there were reasonable ground to believe the words were for the benefit of the congregation; the words did not impute to any Plaintiff the commission of a criminal offence; the words were published without actual malice and without gross negligence; the Defendants sought to calm the rhetoric on both sides by reconvening a later assembly to air the differences in civil discourse; The words complained of, or actually spoken, furthermore, are not actionable without proof of special damages which is not alleged or not sufficient to sustain this action. [ 5 ] The issues can be described this way: Were the words said?

If the words were said, were they defamatory and, in particular, were they slander per se ? Did the words that are alleged to have been said refer to the Plaintiffs? If the words were said, are referable to the Plaintiffs, and are slanderous, are there defences available? Background [ 6 ] Both Plaintiffs were long-time members of the Burnaby Serbian Orthodox Church (“Church”). They were members of the committee that was responsible for the planning of the combined church and community centre for the Church (“Construction Committee”). Mr.

Vanagan is an architect with experience in dealing in that capacity with the construction industry. Mr. Gordić was the Chair of the Construction Committee. He runs a logging and manufacturing company but had undertaken the construction of two houses. [ 7 ] The Defendant, Desimir Vidović, is the Priest of the Church, having been appointed in October 2001. The Defendant, Radomir Buhač is also a long-time member of the Church. [ 8 ] The Church is governed by the Canadian Diocese of the Church. A Book of Regulations (“Regulations”) was adopted many years ago by the Canadian Diocese.

The Regulations govern the affairs of the Church. [ 9 ] The Church established a five-person committee to review the Regulations (“Bylaw Committee”). The Plaintiff, Mike Gordić, and the Defendant, Desimir Vidović, were members of the Bylaw Committee. [ 10 ] Mike Gordić was of the view that it was necessary to revise the Regulations to reflect that the building that had been constructed was not only a church but also a community centre.

Desimir Vidović was of the view that the Regulations should not be changed. [ 11 ] The Bylaw Committee met a number of times and a number of drafts of new Regulations were prepared. An attempt was made by Mike Gordić to reconcile the conflicting views of the Bylaw Committee by preparing a further draft but the new draft was not acceptable to all of the members of the Committee. [ 12 ] What was prepared by Mr. Gordić was sent to the Diocese in Toronto.

In a March 29, 2010 letter to the “Governing Board” of the Church, the President of the Diocesan Governing Board of the Diocese made a number of statements regarding what was proposed in the draft. Those statements included the following: Meticulously studying this Book of Regulations, our Legal Department at the Canadian Diocese reached the conclusion that there was no reason to consider a proposition for new rules which are even less in accordance with the Constitution of the Serbian Orthodox Church for North and South America (N and S Am) and also the Statute of the Canadian Diocese.

It is the opinion of the Legal Department that the existing approved rules can be modified and remain in effect. ... *IMPORTANT: Your PROPOSITION of the new Book of Regulations has so many shortcomings and contradictions and thus it is not worth commenting on. [ 13 ] A copy of the proposed Regulations was forwarded to members of the Church and a May 9, 2010 meeting was scheduled to discuss the draft that had been prepared by Mr. Gordić. THE MAY 9, 2010 MEETING [ 14 ] The meeting was conducted entirely in the Serbian language.

Those in attendance included voting members who were eligible to vote because they had paid their membership fees, non-voting members of the Church, and parishioners of the Church who were defined by the Regulations to be “Serbians of the Serbian Orthodox faith residing in the region who each have an inalienable right to attend all activities of the Church”. The Secretary determined that there was a quorum present as 44 out of a total of 66 voting members were in attendance. The Meeting was opened with a prayer by Desimir Vidović. [ 15 ] One of the members of the Church who attended was Goran Evankovic. Mr.

Evankovic recorded at least some of the proceedings by a handheld cell phone which he stated that he held up in the air. [ 16 ] In evidence are Minutes prepared after the meeting, an English translation of those Minutes, and, what purports to be a transcript and the English translation of what was said to have been recorded by Mr. Evankovic. Minutes of the May 9, 2010 Meeting [ 17 ] Lubomir Kotur was the Secretary at the Meeting. Minutes were prepared and were verified by two others. An English translation relating to what occurred was also prepared.

The following represents the English translation of the Serbian version that was signed by the President and the Secretary: V. Ž muki ć presented the opening statement and the reasons for the Special Assembly Meeting.

Radomir Buhač thinks that we should adopt the current Bylaw of the Diocese and that we should reject this proposal for its change. Miodrag Gordi ć think [sic] that we should revived [sic] the Society and this way we will protect church from the possible lawsuits over the claim settlements and insurance, if an accident happens, etc. He believes that the work load in the Center is large and that priest is not capable of doing it alone. V. Žmukić reminds that this is only a By-Law draft and that any discussion is possible. A discussion becomes very heated and members start to talk at once.

V. Žmukić suggests that father Desimir [Vidović] calls for a Special Assembly Meeting. Mijodrag Gordi ć no longer wants to be a member of the Trustee-Board of the Church. Great noise, V. Žmukić (President) is leaving the Assembly, as well as some other members. Father Desimir suggests that the Vice President R. Okuka continues to administer the Assembly Meeting. R. Okuka proposes that a Special Assembly Meeting should be organized at the end of June in order to elect a new Board of Directors. Proposal is unanimously accepted.

Goran Stanisavljevi ć proposes adoption of the Bylaw of the Canadian Diocese and that this could not be changed. Comes to voting, all were in favour, except that two members did not vote. TRANSCRIPTS FROM THE RECORDING MADE BY MR. EVANKOVIC [ 18 ] At Trial, Mr. Evankovic stated that he was seated about five rows from the back of the room where the meeting was held. He stated that he held a recording device in plain view above him, that he did not stop the recording device once it started, and that he did not edit what was recorded. As to why he recorded some of the proceedings, I record Mr.

Evankovic as stating: “Because I experienced previous problems with some individuals so I wanted a record.” [ 19 ] Mr. Evankovic stated that he took the recording device home, plugged it into his computer, and prepared a CD which he provided approximately 14 months later to Mr. Buhač and others. Regarding the transcript that was prepared from the CD, Mr. Evankovic could not tell whether it was complete or not. I record him as stating, “I don’t know”. [ 20 ] Before and during the Trial, various witnesses listened to the CD in an attempt to come to a consensus regarding the words they heard.

In particular, an attempt was made to ascertain what had been said where the Serbian transcript initially noted that the words spoken were either “unintelligible” or “unclear”. [ 21 ] Nela Damjanovski is a certified translator. She is not a member of the Church. Ms. Damjanovski received a copy of the minutes and translated them. She also listened to the CD “to check for changes” and “found some words and added a few words”. When asked at Trial whether there was any evidence of the recording being stopped and restarted, she stated “no”. [ 22 ] Under cross-examination, Ms.

Damjanovski stated that she had relied on Mr. Vidović to tell her the names of the people who were speaking throughout. She states that she had marked as “unclear” where voices could be heard but what was being said could not be understood. On the question of whether she had heard the words “thief” or “enemies”, she stated, “not that I recall”. [ 23 ] I am satisfied that the translations are the best evidence available regarding at least part of what was said on May 9, 2010.

While a number of witnesses were of the view that either the recording or the CD had been edited prior to the creation of the Serbian and/or English transcriptions, I cannot reach that conclusion. I accept the evidence of Ms. Damjanovski in that regard. I find that the absence of the words complained of in any of the transcripts cannot be attributed to tampering as was alleged by witnesses, including Peter Vanagan. [ 24 ] However, it is clear that not all words spoken are set out in the transcripts. There remain a number of portions translated as “unintelligible” or “unclear”.

I cannot be satisfied that all of the words that were spoken that day were transcribed from what was recorded by Mr. Evankovic. As well, there are differences between the transcripts prepared.

I conclude that the transcription of the CD is not a complete record of what was said that day. [ 25 ] In the transcript, the following words are attributed to Vojislav Žmukić who was the President of the Church at the time of the May 9, 2010 meeting: We have made the bylaw, that is, a five-member committee, and some confusion was sown allegedly that the new bylaw goes toward some kind of separation of the centre from the Church. The bylaw was sent to everyone by mail. I will only read

Article 10 as an introduction, so we don’t have to discuss that at length.

Article 10 says (unclear).

Article 10 refers to the Serbian Centre. The goal of the Serbian Centre as part of and under the auspices of the St. Archangel Michael Serbian Orthodox Church-School Community is to maintain the vitality of the Serbian community and raise the quality of life of all Serbs living in British Columbia, (unclear) preservation of the Serbian cultural heritage. The work of the Serbian Centre is defined (unclear) a separate bylaw of the Serbian Centre adopted by the St. Archangel Michael Church-School Community at the annual meeting.

The bylaw of the Serbian Centre pertains to defining (unclear) administrative management and ways of maintaining the Church. The Church-School Community has jurisdiction (unclear). Let me just tell you one more thing. This is not the bylaw that has been adopted. This is a proposal of the Bylaw. This meeting called so you can give your comments and so we can see how we can further align this bylaw with our Eparchy bylaw.

[Emphasis added.] [ 26 ] In the transcript, the following words are attributed to the Defendant, Desimir Vidović: About the Serbian Centre, these are all the domain of the members of this Church-School Community ... just let me finish, as far as this proposal is concerned since this committee submitted the way it submitted it, I sent to the Eparchy these rules that the three of them adopted and sent to all of us and we received a reply, and we shared it with you.

Those rules are not in accordance with themselves, nor are they in accordance with the Constitution of the Canadian Eparchy or the Constitution of the Serbian Orthodox Church for America and Canada. So, that as far as we can consider that we’ve received the new rules of the Church-School Community and they are what we received from her Eparchy. So, as far as, I see no reason to talk about anything, this Constitution will never, what they wrote, that bylaw, will never be certainly adopted by any Church and simply isn’t up for discussion.

All those who rally and try to push something that’s against the structure of the Serbian Orthodox Church, I will certainly send all those names to the Eparchy, so they know who here is against our Serbian Orthodox Church. [Emphasis added.] [ 27 ] In the transcript, the following words are attributed to the Defendant, Radomir Buhač: Dear brothers and sisters, please listen to me kindly ... First, this is a meeting of the St. Archangel Michael Church-School Committee... we’ve received the bylaw signed by the late Patriarch Pavle ...

I ask you, is there anyone here who can rise against that man to pretend he’s smarter, that he’s a bigger patriot, and that he gave more for the Serbdom, for the Church ... All his life, all his he devoted, he took nothing with him, he was buried at the Rakovica monastery, the monastery that bears the name of our Church St. Archangel Michael ... It’s all ours! Today, a couple of people, not today, but for a long time, a couple of people who want to be above the canon of the Serbian Orthodox Church and the Patriarchate and everything ...

They want to be in charge here ... please if you can in any way vote unconditionally for this bylaw that was signed by Patriarch Pavle, without these objections. These objections, they are undermining of the members and narrow-mindedness of a group of people who want to usurp all the power in the Church and the benefits of the Church ... It’s the same as removing a shroud from a dead person ... Here those people should be removed , so they wouldn’t come, so they wouldn’t be seen, and not sit and make themselves important.

First, here they made a church with a lot of irregularities, with a lot of defects ... various construction committees are buzzing around. Those construction committees are wasting time ... the Church is leaking, the foundations are cracking, what will happen in ten years when the Church ... a little more, when it sinks?! Then they’ll buy it by Dinkić’s recipe, as cheaply as possible, let’s grab this! No way ... They’re separating the Centre, they’re separating this, they’re all like it isn’t this, it isn’t that ... I haven’t finished. Don’t raise your hand ...

Please if you can vote, whoever does not vote, votes against the dead Patriarch Pavle ... Believe me, the Patriarch signed this, the man who was a saint when he walked, let alone now that he’s dead, and is now and will be forever ... and those who want to dishonour him and the Orthodox Church, Serbian and Christian they are sitting here among us, creating discord, fighting in the Church .

It was read now that the Church is also the Cultural Centre, that it’s a place of gathering, exaltation and spirituality, the rooms are used for religious and educational purposes, and here they even want kick boxing in this Church ... What for?! They swear at the members of the Church, they swear at the Bishops, they swear at the priests, they fight ... What is this?! Is this here anarchy?! We should be ashamed, ashamed!!! [Support and applause of the present members] Shame, as big as it gets, that all Vancouver is gossiping about us because of a couple of people here ... and they hold a meeting ...

I think you Žmukić don’t deserve to chair this meeting ... I don’t know how, I don’t know, to me you’re (unintelligible commotion). [Emphasis added.] [ 28 ] There is then this exchange between Radomir Buhač and Vojislav Žmukić set out in the transcript: Vojislav Ž muki ć: This assembly elected me... (unintelligible commotion) Radomir Buhač: God willing, you should resign, I will embarrass... I haven’t finished! As far as this construction

part is concerned... the Church is constantly being repaired... a newborn child non-stop being taken to the doctor... being repaired, to surgeries... What is this, is this here, disability?! Vojislav Žmukić: Wait, this isn’t an agenda item... all this you 90% isn’t... Radomir Buhač: What isn’t true?! Vojislav Žmukić: Not an agenda item... There is a construction committee elected by the Assembly... The Construction Committee is working... (unintelligible commotion) Radomir Buhač: It’s 100% true that this bylaw should be adopted unreservedly... Patriarch Pavle signed it.

Vojislav Žmukić: If you’ve finished, other people have the floor. Vuk Stevovic: Wait a minute, people! Vojislav Žmukić: No, no, Vuk, it isn’t your turn... let’s follow the order... have you finished? Radomir Buhač: I haven’t... if this isn’t the proposal, what’s the proposal then... To adopt the regulations, let’s vote right now! We’re wasting time, we’re wasting time, we’re looking for papers that don’t exist!

You put the priest in the corner... you put the [priest] on the corner, a clergyman, he should be, he’s the first among equals here, he should be sitting here, with a little more respect... not only he but there are more.

Approval and applause of the present members Mijodrag Gordić: Sit down! Radomir Buhač: I won’t sit down, you can’t tell me to sit down! Vuk Stevovic: Quiet, people. Everyone has the right to talk. Vojislav Žmukić: Mijodrag Gordić asked permission to speak. Radomir Buhač: Dear brothers and sisters... I came here and I don’t need this any more, no more than you do, or anyone else. I’m, maybe, a little more knowledgeable than most of you... not that I’m trying to stand out... but, because I was in business and I understand some things.

Unintelligible commotion Mijodrag Gordić: I’m here for us to preserve this for our children and for the future... You for Serbian, whether Serbian, Serbian, for our children here, to preserve this and that’s why I’m here, to clarify some things. I... no one here is a bigger Serb, nor orthodoxian (Orthodox) than me... nor am I better ... [ 29 ] There is also this translation available from the CD that was prepared. In this translation, no attempt was made to assign names to the speakers and, accordingly, only “MV” (“male voice”) is set out.

The translation of the following discussion was prepared and the English translation of it follows. Where it is clear to me who is speaking, I have added the name of that party in addition to the “MV” designated in the translation: MV: (shouting) Shut up! You have no right to talk! MV: (not audible) in connection with this proposal that the Committee suggested, we received an answer, which we gave to all of you. Those regulations that had been prepared were not accepted. The instructions we received from our Patriarchy in connection with these regulations will not be accepted in any of the churches.

MV: We know that!!! MV [Desimir Vidović]: These who are getting together here and trying to push through some of their plans, I will take their names and send them to our Eparchy of the Serbian Orthodox Church, so that everybody knows who is working against the Serbian Orthodox Church. MV [Radomir Buhač]: To start with, this is a meeting of St. Archangel Michael Serbian Orthodox Church.

The regulations that are signed by the late Patriarch Pavle, and I am asking you – is anyone here that can stand up against this man and make himself a smarter, bigger patriot, who contributed more to the Serbian legacy, to the church?! He dedicated all his life to it and took nothing for himself. He was buried in the monastery of Rakovica that carries the name of St. Archangel Michael, which is the name of our church, and that is all ours. Today, and not only today, a few people want to be above our Orthodox Church and Patriarchy. They want all and they want to be in charge.

I beg you to accept these regulations that Patriarch Pavle signed, without any comments, because any type of comments will ruin our membership. Because these people want to grab the command of the church and these people have to be removed and never come back. To start with, they made here so many wrong doings, they formed a construction committee, they are wasting time. Church’s roof is leaking, foundations are cracking. What is going to be in 10 years then, will this Church sink a little more? They will buy it very cheap. That cannot happen.

They are separating the Centre and everything else from the Church (not audible) . I did not finish!!! [Emphasis added.] [ 30 ] There may or may not have been a physical confrontation between some people who were at the meeting that day. In any event, chaos ensued at a certain point in the meeting. After calm was restored, the meeting continued although not all of those in attendance at the beginning of the meeting remained in attendance. A transcript is not available for this last part of the meeting. Eventually the proposed new Regulations were rejected by a vote of 42 members with 2 abstaining.

THE REQUEST FOR AN APOLOGY [ 31 ] Counsel for the Plaintiffs wrote to the Defendants on July 14, 2010 demanding an apology. The alleged defamation of Radomir Buhač was described as follows: On or about May 9, 2010, at a meeting of over 60 members of the Church, you publicly accused our clients of being “lopovi”, which translates to “thieves”, and went on to say (in Serbian) that it was time to kick them out of the Church. These statements were false and constitute a very serious defamation against our clients, for which you can be held liable for significant damages.

You have accused our clients of criminal wrongdoing in front of their Church community, knowing that such a dramatic statement is likely to be repeated over and over, badly damaging our clients’ reputations now and into the future. [ 32 ] In the July 14, 2010 letter, the alleged defamation of Desimir Vidović was described as follows: On or about May 9, 2010, at a meeting of over 60 members of the Church, you publicly accused our client, Miladin (Mike) Gordić of being an “enemy of the church” or “neprijatelji crkve” in the Serbian language.

This statement is false and constitutes a very serious defamation against Mr. Gordić, for which you can be held liable for significant damages.

[33] When no apology was forthcoming from the Defendants, this action was commenced. DISCUSSION AND CASE AUTHORITIES [34] In Grant v.

Torstar Corp., 2009 SCC 61 , [2009] 3 S.C.R. 640, McLachlin C.J. made these statements to provide asummary of the law of defamation and of the defences available: A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugnedwords were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) thatthe words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least oneperson other than the plaintiff.

If these elements are established on a balance of probabilities, falsity and damage are presumed… Theplaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one ofstrict liability. If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability. (at paras. 28-29) [35] If the words are defamatory, the law presumes them to be false and damages are presumed regardless of whether anyoneactually believed the statements or thought worse of the plaintiff. In Kerr v.

Conlogue (1992), (BC SC), 65 B.C.L.R.(2d) 70 (S.C.), Sinclair Prowse J. made these statements in that regard: [T]here is no onus on the plaintiff to prove that reasonable people actually understood the words in a defamatory sense. Rather theplaintiff is only required to prove that the ordinary reasonable person might have understood it in a defamatory sense. The plaintiff doesnot have to prove that persons to whom it was published in fact did think less of him; indeed a person may be defamed even those towhom the statement is published know it to be untrue (Hough v.

London Express Newspapers Ltd., [1940] 2 K.B. 507, [1940] 3 All E.R.31 (C.A.)). (at p. 79) [36] A presumption of damages only applies if the words fall into one of the categories of slander “per se”. The categories of wordswhich are actionable per se were described by Adair, J. in Marley v. Kains, 2011 BCSC 1306: Slander (which is oral defamation) requires proof of special damages, unless the impugned words were slanderous per se. There are fourrecognized categories of slander where damages are presumed to have been suffered from the very nature of the words, and thus areinstances of slander per se: see R. E.

Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), at pp. 8-23 and 8-24. The twocategories on which Mr. Marley relies are: (1) oral imputations calculated to disparage the reputation of the plaintiff in the way of his orher work, business, office, calling, trade or profession; and (2) accusations imputing the commission of a criminal offence. (at para. 61) (

a) Were the statements made about the Plaintiffs? [37] Where a defamatory statement is made about a small group and the members of that group are identifiable with the defamationby a reasonable person, the element of identification is established. In order for a plaintiff to succeed, a plaintiff must establish on abalance of probabilities that the words would reasonably be understood to be defamatory of the particular plaintiff. In Manno v. Henry,2008 BCSC 738 , [2008] B.C.J.

No. 1057 (S.C.), Grauer J. made this statement regarding the law on identification by referenceto small groups: In the seminal case of Knuppfer v. London Express Newspaper, Ltd., [1944] A.C. 116 at 119-121, Viscount Simon L.C. addressed theissue in this way: Where the plaintiff is not named, the test which decides whether the words used referred to him is the question whether the words aresuch as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to.

There are cases inwhich the language used in reference to a limited class may be reasonably understood to refer to every member of the class, in which caseevery member may have a cause of action. A good example is Browne v. D.C.

Thomson & Co., 1912 S.C. 359, where a newspaperarticle stated in Queenstown “instructions were issued by the Roman Catholic religious authorities that all Protestant shop assistants wereto be discharged,” and where seven pursuers who have averred that they were the sole persons who exercised religious authority in thename and on behalf of the Roman Catholic Church in Queenstown were held entitled to sue for libel as being individually defamed. (at para. 92) [38] Here, there was testimony from several witnesses as well as examination for discovery admissions that both Plaintiffs were wellknown within the Church community as members of, if not the principal members of, the Construction Committee.

There was a plaquein the Church for the Construction Committee with their photos and names on it. [39] At his Examination for Discovery, Radomir Buhač was asked the following questions and gave the following answers regardingwhether the Plaintiffs were well known members of the Construction Committee: Q You will agree with me that when a person referred to “the construction committee,” many people knew that meant MiladinGordić, Peter Vanagan and others?

A There were a lot of people who were building and there were a lot of other construction committees for maintenance for this, for that. Q The point is that Peter and Miladin were well known to be the initiators of the construction committee? …. A Yes. [ 40 ] The words of Radomir Buhač were clear. He was referring to the “Construction Committee”. I find that it was well known within the Church that both Plaintiffs were on the Construction Committee and that Mr.

Gordić chaired or was the “President” of the Construction Committee. [ 41 ] From the evidence at Trial, I find that it was reasonably understood by all of those in attendance at the Meeting that the references by Radomir Buhač about the alleged failures of the Construction Committee and the possibility that the property would be purchased “by Dinkić’s recipe” were directed at the Plaintiffs.

I find that any reasonable person in attendance would know that the references to the Construction Committee referred to the Plaintiffs. [ 42 ] Regarding the Bylaw Committee and those who were supporting change, there was testimony from several witnesses that Mr. Gordić was well known as being on the Bylaw Committee and as having prepared the draft Regulations that were being considered. It was also clear that Mr. Gordić was supporting the proposed changes in the Regulations. Those in attendance who were acquainted with Mr. Gordić would reasonably come to the conclusion that Mr. Vidović was referring to Mr.

Gordić in the comments he made about the Bylaw Committee, the Regulations that had been drafted, and those who supported change. [ 43 ] I find that the references to those on the Bylaw Committee and the Construction Committee were references to the Plaintiffs. The leading role of both Plaintiffs on the Construction Committee and of Mr.

Gordić on the Bylaw Committee establishes identification within the test described in Manno , supra . [ 44 ] The questions which then arise are whether the statements attributed to the Defendants were actually said by them and whether the statements were or were not slanderous and/or slanderous per se . (

b) Allegation that Radomir Buhač stated the Plaintiffs were thieves [ 45 ] I am satisfied that it is slander per se to say that someone is a “lopovi” (“thief”). To describe someone as a thief very much lowers the reputation of that person in the eyes of a reasonable person. Damages can be presumed. If I find that the word “lopovi” was used by Mr. Buhač, I will find that the Plaintiffs have been defamed and that it was slander per se . [ 46 ] I can find no such reference to the word “lopovi” or the word “thief” in the Minutes that were prepared or in the transcript from the CD.

However, there are confirmations of the use of that word in the testimony of witnesses at Trial. There are also references to the use of the word in the Examination for Discovery of Mr. Vidović where he was asked the following questions and gave the following answers: Q Okay. Do you remember him [Radomir Buhač] referring to the members of the church construction committee as lopovi? A During that meeting we were talking as members. We were using the words normally whoever knew what word at that moment.

I did not hear that Radomir Buhač insulted any one of the members directly or that he called any one of the members lopovi. THE INTERPRETER: Should I translate the word lopovi? MR. BURNETT: Well, yes please. THE INTERPRETER: Thief. THE WITNESS: But we in our congregation have enough unexplained things which were occurring within our parish. One of those things was the construction of the new church and money that was being spent and the money that we received, which means the way the building – in what stage it was or the way it looked. Q Okay. We’re now outside the question I asked, so I’ll stop.

Did you hear Mr. Buhač say lopovi? A I have. Q Do you also remember Mr. Buhač saying “it was time to kick them out of the church”? In Serbian, obviously. A Yes. I am not able to repeat the exact words. [ 47 ] Unfortunately, a review of those questions and answers produces some uncertainty. At one point, Mr. Vidović states that he did not hear the word “lopovi” used “during that Meeting” and he later answers “I have” to the question of whether he heard Mr. Buhač say “lopovi”. It is not clear from the latter answer whether he was saying Mr.

Buhač said that word at the Meeting or whether he was saying that he had previously heard that word being said by Mr. Buhač. However, in the context of the questions being asked, I am satisfied that Mr. Vidović was confirming that Mr. Buhač did use the word “lopovi” at the Meeting in reference to the Plaintiffs. [ 48 ] A number of witnesses at Trial stated that they heard the word being said by Mr. Buhač. Vuk Stevovic gave evidence for the Plaintiffs. Mr. Stevovic testified that he sat in the rear left corner of the room. I record him as stating that he heard Mr.

Buhač use the word “lopovi” in reference to what the Plaintiffs had “done to the Church”, that Mr. Buhač used the word “lopovi” at the outset of his remarks to the Meeting, and that he called the people who were responsible for construction of the Church building “lopovi”. I record Mr. Stevovic as stating that the use of the word “lopovi” happened about the second half of the second page of the English translation of

the transcript of the CD. He described the words used by Radomir Buhač as follows: “you stole”, “the Church’s leaking walls are cracking”. [ 49 ] At Trial, Vojislav Žmukić stated that he had been a member of the Bylaw Committee, that he was promoting the adoption of the new bylaws, and that he was the President of the Church at the time of the Meeting. He stated that Mr. Buhač was the first to speak, that he “spoke about the construction”, that those on the Construction Committee “deliberately led the Church to disaster”, and that he used the word “lopovi” in reference to the Plaintiffs. [ 50 ] Mr.

Vanagan testified he was an architect, the honorary consul for Serbia, had served on the Construction Committee, and had also served on the Bylaw Committee. I record Mr. Vanagan as testifying that Mr. Buhač looked directly at him and said words to the effect that the members of the Construction Committee were “thieves”. Mr. Buhač was looking “at me at the time”. [ 51 ] At Trial, Mr. Gordić insisted that he also heard Mr. Buhač state that members of the Construction Committee were “lopovi”. When faced with the fact that the CD did not support this contention, Mr.

Gordić’s response was that pieces of the recording were missing “looked like someone manipulated it”. [ 52 ] On the other hand, Petar Atanackovic stated that he did not hear the word “thief” spoken. Mr. Atanackovic is a professional engineer and became a member of the Church after construction was completed. Mr. Atanackovic stated that he had assisted in the preparation of the Serbian language transcription of the CD that came to Mr. Buhač from Mr. Evankovic. At Trial, Mr. Vidović testified that he was sitting behind the row that was occupied by Mr.

Buhač, that he did not hear him use the word “lopovi”, and that he had listened to the CD several times and did not hear the word “lopovi”. [ 53 ] At Trial, I record Mr. Buhač as being asked whether he had ever used the word “thief” and as replying “never”. I record him being asked whether he had any reason to believe that the Plaintiffs were “thieves” and him as stating “I’ve no reason to think about that”, “I didn’t and I don’t believe”.

I record him as being asked to confirm that he had “no reason to believe that they were dishonourable”, and I record him as confirming “yes”. [ 54 ] Despite the fact that the word “thief” cannot be found in the Minutes or in the transcripts, I am satisfied that the Plaintiffs have shown on a balance of probabilities that the word was said by the Defendant, Radomir Buhač and that he was referring to the Plaintiffs when he said the word. Too many people heard the word used to rebut the assumption that, because it did not appear on the transcript, it was not said.

Mr. Ž muki ć chaired the meeting and I am satisfied that he was in the best position to hear what was said. He heard the word being used, as did both Plaintiffs and two witnesses who appeared for the Plaintiffs at Trial. [ 55 ] As well, I discount the testimony of Mr. Buhač who was asked whether he had ever used the word “lopovi” and he replied “never”. I find this to have been contradicted by the testimony of Mr. Vidović who testified that he had heard Mr. Buhač use that word. As well, I found Mr. Buhač not to be a satisfactory witness. His testimony was evasive and sometimes non-responsive.

Accordingly, I prefer the evidence of those who heard the word “lopovi” to those who swore under oath that they did not hear it said or of Mr. Buhač who denied having said it. [ 56 ] Regarding the absence of the word “lopovi” in the transcripts, I am satisfied that the word was said during the numerous times when the transcript merely reflects the word “unclear” or “unintelligible”.

In that regard, I find it more than likely that the use of the word would have produced a reaction from those in attendance protesting the use of the word and all of these voices at once resulted in the word not being discernible and therefore not reflected in the transcript. [ 57 ] I find that the word “lopovi” was said by Mr. Buhač, that he was referring to the Plaintiffs when he used that word, and that the use of the word connoting a criminal act is slander per se so that the Plaintiffs are entitled to damages. (

c) Allegation that the Plaintiffs would buy the property “by Dinkić’s recipe” as cheaply as possible [ 58 ] Regarding the statement that someone would follow “Dinkić’s recipe” and purchase “as cheaply as possible”, I find that this phrase was spoken by Mr. Buhač. It is clear from the transcript that he said it and Mr.

Buhač does not deny that the phrase was used by him. [ 59 ] The Plaintiffs and the Defendants led evidence about Mladjan Dinkić, who became a Governor of the National Bank of Yugoslavia in 2000, the Minister for Finances from 2004 to November 2006, the Minister of Economy and Regional Development in 2007, and the Vice President of the Government of the Republic of Serbia in 2008. Vojislav Žmukić was recalled on behalf of the Plaintiffs. He testified that he had read various articles, that the articles that he read were from publications controlled by political parties, and that he was of the view that Mr.

Dinkić was viewed in the Serbian community as being corrupt. Ljubomir Kotur was called on behalf of the Defendants. Mr. Kotur had been a member of the Church since 2006, was the Secretary in 2011, and is presently the President of the Church. I record him as stating that there was “a high opinion of him” in Serbia, as he had converted the previous system to a “free market system” and “everyone appreciated him in Serbia.” [ 60 ] The testimony of Mssrs. Ž muki ć and Kotur were based on hearsay and merely show that there is a division within the Serbian community regarding the career of Mr. Dinkić.

Whether or not the reference to “Dinkić’s recipe” was known widely within the Serbian community or by those in attendance at the Meeting, I am satisfied that the statement to the effect that those on the Construction Committee intended to buy the property “as cheaply as possible” because of the alleged deterioration of the Church building are the words which I must consider are defamatory or not. [ 61 ] The statement of Mr.

Buhač that the Plaintiffs had produced a building that had so many problems that the Plaintiffs would be able to buy it later at a lower price is a ridiculous statement which cannot be supported by facts. Although ridiculous, I find that the Plaintiffs have been defamed by the statement made. To suggest that an architect who also served on the Construction Committee and

the Chairman of the Construction Committee had a plan all along or had recently concocted a plan to use their inadequate work to drive down the value of the property so that they could purchase for personal profit, lowers the reputation of both Plaintiffs in the eyes of a reasonable person hearing what was said by Mr. Buhač that day. I am satisfied that the phrase disparaged the reputation of the Plaintiffs generally and that the words amounted to slander per se . [ 62 ] Mr. Vanagan is an architect and the words disparage his reputation as an architect. As well, because of the relationship of Mr.

Vanagan to the Church, the words amount to an allegation that he breached duties he owed to the Church and its members. While the words do not disparage the reputation of Mr. Gordić in the way of his work, trade, or profession, I nevertheless find that the words are slander per se as they allege either a criminal act and/or a breach of fiduciary duties owed by Mr. Gordić to the Church and its members. [ 63 ] A reasonable person in attendance at the Meeting would have understood the words to be used in a defamatory sense.

I find that the phrase relating to “Dinkić’s recipe” were slanderous per se , so that both Plaintiffs are entitled to damages. (

d) Allegation that Desimir Vidović said that Miladin Gordić was an enemy of the Church and that he would recommend that Mr. Gordić be expelled from the Church [ 64 ] Regarding a statement that someone was an “enemy to the Church” and that he was “against the Church”, if I can find that the words were actually said, I will find that the words are slanderous per se . Words about a religious adherent that he or she is an enemy of the Church and that he or she will be reported to higher ups in the Church disparages the reputation of that person in the eyes of a reasonable person within the religion of that adherent.

The words disparage their religious beliefs and commitment to the Church. If I find that the words were said, I am satisfied that there can be no innocent

interpretation given to an intention to advise the diocese of a church. It can only mean that there would be a recommendation that the person be expelled from the Church. The words used were all that more hurtful and slanderous if said by the priest of the Church. [ 65 ] In this regard, the Book of Regulations that governs the activities of Mr. Vidović sets out the following: “…In order to (be) a member…(ones) moral orientation (must not) clash with the traditional values of the Serbian Orthodox faith.” (

Article 7 ) “…membership is cancelled…for...” “Damaging the reputation and interests of the Church by actions of the members” (Article 9), or for “…failure to fulfill his/her religious and financial obligation.” (Article 9) Where religious/financial obligations include “To comply and obey the rules of this Book of Regulations of the Church-School and the decisions of Diocesan authorities and higher bodies of the Serbian Orthodox Church.” (Article 12) [ 66 ] The transcript available allows me to conclude that the following words were said by Mr. Vidović: ...

That bylaw will never be certainly adopted by [the] Church and simply isn’t up for discussion. All those who rally and try to push something that’s against the structure of the Serbian Orthodox Church, I will certainly send all those names to the Eparchy, so they know who here is against our Serbian Orthodox Church. [ 67 ] Although not attributed to Mr. Vidović and only noted as being in “MV”, I am satisfied that the following words are a slightly different version of what was said by Mr.

Vidović: “These who are getting together here and trying to push through some of their plans, I will take their names and send them to our Eparchy of the Serbian Orthodox Church, so that everybody knows who is working against the Serbian Orthodox Church.” [ 68 ] As to whether the phrase “enemy of the church” was said or not, it is not surprising that the testimony of the witnesses is inconsistent. I record Vuk Stevovic as stating that Mr.

Vidović stated that he would “send a letter to the head guy to get rid of us – kick us out as “those against him” were in “destroying the church” and that he was directly pointing at the Plaintiffs when he made that statement. I record Vojislav Žmukić as stating that Mr. Vidović said: “These people are enemies of the church”; “he was going to submit the names of those supporting the changes”; and that “they should be removed as members of the Church”. [ 69 ] I record Mr. Vanagan as stating that Mr. Vidović stated at the Meeting: “People who propose the bylaw were enemies of the church”. At Trial, I record Mr.

Gordić as stating that Mr. Vidović said: “Members who voted for this are enemies of the church and he was going to contact the bishop to have them expelled from the church.” [ 70 ] I record Goran Stanisavljević as stating that he did not hear Mr. Vidović say the words “enemy of the church”. I record Petar Atanackovic as stating that Mr. Vidović said: “If those who spoke against the church, they will be enemies of the church”. However, he also stated that “it was a warning and not directed to anyone”. Later under cross-examination, Mr.

Atanackovic admitted that he had spoken to counsel for the Defendants after his direct examination as well as reviewing the transcript and that he was now testifying that the actual words used by Mr. Vidović were that the Defendants were “against the Church” rather than that were “enemies of the Church”. I give very little credibility to what was stated by Mr. Atanackovic. It is clear to me that he remains confused as to what he did or did not hear Mr. Vidović state. I find that the credibility of his testimony is very clouded by the “correction” he made after he spoke to counsel for the Defendants. [ 71 ] Mr.

Vidović was asked at Trial whether he heard Mr. Buhač state words to the effect that it was “time to kick them out of the

Church”. I record him as stating: “I can’t remember the exact words but something like that.” As to whether he heard him say words such as they had “brought the church to collapse”, he stated “I don’t remember this”. [ 72 ] As the transcript sets out that Mr. Buhač stated “those people should be removed” and because of the Serbian transcript relating to the CD having been available to Mr. Vidović for a number of years, it is inconceivable that his memory is such that he could not remember what had been said by Mr. Buhač. I take this to be indicative of the selective memory of Mr.

Vidović as to what was said and what was not said at the Meeting. [ 73 ] Under cross-examination at Trial, Mr. Vidović confirmed that he had used the words “all those who rally and try to push something that’s against the structure of the Serbian Orthodox Church” and “I will certainly send all those names to the Eparchy, so they know who here is against our Serbian Orthodox Church”. However, he denied that he had stated that the Plaintiffs were “enemies of the Church” and that they should be expelled. Mr.

Vidović also stated that he was not referring to the Plaintiffs but to “all people who do not respect the rules of the Church”. I also record him as stating: My opinion was that everyone who does not respect the rules of the Church and those who try to bring about changes to the rules that are not showing respect for the Church “should follow the rules”, “if not follow the rules then we cannot be members” In my speech I didn’t mention anyone by name and when I said it I meant those not following the rules of the church.

I thought that anyone not following the rules should be kicked out – behaviour not in accordance with the Church. [ 74 ] When asked whether he was referring to the three members of the Bylaw Committee who made the bylaw proposal when he used the words that were quoted, he responded “yes”. However, when he was asked whether the reference to “those names” referred to people including the Plaintiffs, he paused for a long time and then stated “I do not admit that”. This answer was somewhat indicative of most of the testimony of Mr. Vidović. I found him to be vague and evasive throughout.

It is clear that the Plaintiffs were in favour of the changes to the Regulations and that Mr. Gordić had prepared the draft changes. To not admit that the Plaintiffs were included within the possibility that “those names” would be referred to the Eparchy is an evasion which reinforces my finding that Mr. Vidović was not a forthright witness. Mr. Vidović was equally evasive when asked whether he had used the phrase “enemy of the church”. I record him as stating: “I don’t remember that I used this phrase”.

However, when he was asked whether he had “perhaps” used the phrase, he then stated: “I did not use the phrase”. [ 75 ] Mr. Buhač said words to the effect that those who wanted to usurp the power in the Church “should be removed”. At the same time, Mr. Vidović stated that the changes to the Regulations were not “up for discussion” and that those who tried to push something that was against the structure of the Church required him to “send all those names to the Eparchy, “so they know who here is against our Serbian Orthodox Church”. Pursuant to the Regulations in effect, Mr.

Vidović was aware that membership in the Church could be “cancelled” if a member was damaging “... the reputation and interests of the Church ...” or was not complying with and obeying the Regulations and the decisions of the Diocesan authorities and higher bodies of the Serbian Orthodox Church”. [ 76 ] Both Plaintiffs were awarded the “Order of St. Sava” at the March 2005 opening of the Church for their efforts on the creation of the new building. I am satisfied that both Plaintiffs were very proud of that designation and of their involvement, accomplishments, and stature within the Church.

To suggest that they were “against the Church” because they were supporting changes to the Regulations” would be very hurtful. [ 77 ] I conclude that the words of Mr. Vidović that he would send the names of those were “against the structure of the Serbian Orthodox Church” are slanderous as they tend to lower the reputation of Mr. Gordić in the eyes of a reasonable observer who was in attendance at the Meeting that day or who may have heard from those in attendance what had been said by Mr. Vidović about Mr.

Gordić. [ 78 ] While I conclude that the phrase “enemy of the Church” was used, I do not have to make that finding in order to conclude that the use of the words that those who are “against the structure of the Serbian Orthodox Church” are of the same effect and that Mr. Gordić comes within the group being referred to. [ 79 ] I conclude that the words used were slanderous per se . I find that Mr. Gordić was defamed by the words used by Mr. Vidović and is entitled to damages flowing from the slander unless there are defences available to Mr. Vidović. POSSIBLE DEFENCES (

a) Justification [ 80 ] The onus is on a defendant to prove the truth or substantial truth of the defamatory imputations arising from the words found to have been published ( Torstar , supra , para. 33). There was no evidence led to support the conclusion that the Plaintiffs were “thieves”, that they had arranged for the value of the Church to diminish in order that they could purchase it cheaply, or that there were grounds to require Mr. Vidović to report them to the Diocese. Indeed, both Defendants disavowed making the statements and made no attempt to claim them to be true.

Accordingly, I find no truth or substantial truth in the statements that I find were made. The defence of justification is not available to the Defendants. (

b) Qualified Privilege [ 81 ] The questions dealing with this defence are (

a) whether the words were published on an occasion of qualified privilege and (

b) whether a defendant honestly believed the words to be true; (

c) if so, was the occasion exceeded either by referring to subject matter not connected to the occasion or by publication to people outside the occasion; and (

d) if the defence remains, is it lost as a result of malice. (See Turco v. Dunlop , [1998] B.C.J. No. 2711 (S.C.), at para. 44 ; McQuaig v. Harbour Financial Inc. (2009), 18 Alta L.R. (5th)

83 (Q.B.) at para. 85, and Smith v. Cross (2009), 2009 BCCA 529 , 99 B.C.L.R. (4th) 214 (C.A.) at paras. 20 and 26. [82] The onus is on the Defendants to show that the occasion was one in which the speaker and those hearing the information had areciprocal duty of a moral, legal or social nature to make and receive the communication. Reciprocity is essential. In AmalgamatedTransit Union v.

Independent Canadian Transit Union, (AB KB), [1997] 5 W.W.R. 662 (Alta Q.B.), Lutz J. stated“the law places very stringent boundaries on this defence in an attempt to balance competing public and private interests” (para. 148). [83] Corey J. on behalf of the Court in Hill v. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130,stated: Qualified privilege may also be defeated when the limits of the duty or interest have been exceeded. See The Law of Defamation inCanada, supra, at pp. 13-193 and 13-194; Salmond and Heuston on the Law of Torts (20th ed. 1992), at pp. 166-67.

As Loreburn E.stated at p. 320-21 in Adam v. Ward, supra: ... the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is notrelevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates theprivilege will not be protected. (at para. 146) (

c) Statements of Mr. Buhač [84] Had this meeting been confined to the discussion of the proposed Regulations and to those with a direct interest to vote on theproposed changes, the statements would have been made on an occasion of qualified privilege, subject to issues of exceeding theprivilege and malice. [85] However, I find two reasons why the statements made by Mr. Buhač were not made on an occasion of qualified privilege. First,this meeting was not limited to those with a direct interest in the matter of proposed changes to the Regulations.

Rather, it was an openmeeting with those present including about 20 non-members of the Church. Second, this was no occasion for statements aboutconstruction deficiencies, alleged budget overruns or plans to buy the Church for personal profit. [86] Privilege is lost if the statements are not germane to the occasion or if they are published to those outside the occasion. Exceeding the occasion can occur by publication to people who do not share the reciprocal need for the information or by publication ofnon-germane statements. That is what occurred here. To establish that an occasion is privileged, Mr.

Buhač must show that he had alegal, moral, or social interest or a personal duty to publish the information to those in attendance and that those in attendance had acorresponding interest or duty to receive that information. Both interests (speakers and listeners) are needed: RTC EngineeringConsultants Ltd. v. Ontario (Ministry of the Solicitor General and Correctional Services) (2002), (ON CA), 58 O.R.(3d) 726 (C.A.). [87] There was no duty on Mr.

Buhač to express his views about the alleged construction deficiencies in the building and an allegedplan to use the deficiencies to allow the Plaintiffs to buy the property at a low price in due course. Similarly, there was no correspondinginterest or duty on those in attendance to receive the views of Mr. Buhač in those regards. [88] As well, I cannot conclude that Mr. Buhač honestly believed the words to be true that he used. Rather, Mr. Buhač allowed hisuncontrolled emotions to overcome him. I have concluded that the occasion was exceeded by Mr.

Buhač referring to subject matters notconnected to the occasion which was to deal with possible changes to the Regulations and making statements to people who could notvote on whether the new Regulations would be adopted on not. I find that the statements made by Mr. Buhač were not made on anoccasion of qualified privilege. (

d) Statements of Mr. Vidović [89] On the other hand, I have concluded that the words used by Mr. Vidović at the Meeting were made on an occasion of qualifiedprivilege. While the words were used in an attempt to intimate those who were speaking in favour of the changed Regulations, there wasnevertheless a reciprocal duty of a moral and religious nature for Mr.

Vidović to make the statements and for those in attendance whowere in a position to vote to receive the communication that the Diocese was opposed to the change and that he was of the view that hewas under an obligation to report those who supported change to the Diocese. The statements were germane to the occasion as theyrelated to the vote that would be undertaken relating to the draft Regulations. [90] A required element of the defence of qualified privilege is that Mr. Vidović had an honest belief in what he said.

Having foundthat this was a qualified “occasion”, there is a presumption of honest belief in favour of Mr. Vidović. This presumption can be lost ifthere is evidence from which I could conclude an absence of honest belief or if I could find malice. [91] I cannot find that Mr. Vidović did not have an honest belief in what he was saying. I am satisfied that he felt that he had anobligation to report those who opposed change to the Diocese. The question which arises is whether the qualified privilege defence is not available to Mr. Vidović because of malice. In Smith v.

Cross (2009), 2009 BCCA 529 , 99 B.C.L.R. (4th) 214 (C.A.),Kirkpatrick J.A. on behalf of the Court made this statement: The Supreme Court of Canada summarized the law of malice and qualified privilege in Hill v. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129 at para. 145: Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes, as Dickson J. (as he then was)pointed out in dissent in Cherneskey, supra, at p. 1099, “any indirect motive or ulterior purpose” that conflicts with the sense of duty or

the mutual interest which the occasion created. See, also, Taylor v. Despard, (ON CA), [1956] O.R. 963 (C.A.).Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. SeeMcLoughlin, supra, at pp. 323-24, and Netupsky v. Craig, (SCC), [1973] S.C.R. 55, at pp. 61-62. In Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004) at 299, R.D. McConchie and D.A. Potts reduce this statement to ahelpful framework for the categories under which a finding of malice can be made. A defendant is actuated by malice if he or shepublishes the comment:

i) Knowing it was false; or ii) With reckless indifference whether it is true or false; or iii) For the dominant purpose of injuring the plaintiff because of spite or animosity; or iv) For some other dominant purpose which is improper or indirect, or also, if the occasion is privileged, for a dominant purpose notrelated to the occasion. (paras. 33-34) [92] I cannot find that what was said by Mr. Vidović was motivated by malice.

I am satisfied that he believed that the tenants of theChurch, the Book of Regulations, the Constitution, and the dictates of the hierarchy of Church were being challenged and that he wasduty-bound to bring the matter to the attention of the Diocese. I am satisfied that the Plaintiffs have not shown that Mr. Vidović wasentirely indifferent to whether his comments were true or false: Botiuk v. Toronto Free Press Publications Ltd., (SCC),[1995] 3 S.C.R. 3.

As well, I am not satisfied that the Plaintiffs have particularized the material facts relied upon to support their plea ofmalice as I am satisfied that a bare plea of malice is insufficient: Bowmann v. Turner (1993), (BC CA), 82 B.C.L.R.(2d) 362 (C.A.). [93] Accordingly, what was said by Mr. Vidović was said on a “qualified occasion” and the defence of qualified privileges was notlost to him because he did not have an honest belief in what he was saying or that what he was saying was based on malice. Fair Comment [94] The requirements for a fair comment defence are set out in Mainstream Canada v.

Staniford (2013), 47 B.C.L.R. (5th) 261(C.A.) where Tysoe J.A. on behalf of the Court stated: As reformulated in WIC Radio, [WIC Radio Ltd. v. Simpson, 2008 SCC 40 , [2008] 2 S.C.R. 420] at para. 28, a defendantclaiming fair comment must satisfy the following test: (

a) the comment must be on a matter of public interest; (

b) the comment must bebased on fact; (

c) the comment, though it can include inferences of fact, must be recognizable as comment; (

d) the comment must satisfythe following objective test: could any person honestly express that opinion on the proved facts?; and (

e) even though the commentsatisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. (at para. 31) [95] The facts pleaded in the Response to Civil Claim raise nothing about the construction of the building or the integrity, honesty orcompetence of the Plaintiffs, but only about the bylaws being a “radical departure”. As to Mr. Vidović, there was a failure to say whatthe issue was with the proposed revision to the Regulations. As well, Mr.

Vidović was unable to recall what the issue was at hisExamination for Discovery or during his cross-examination at Trial. Nor were any issues with the Regulations proven at Trial. In thecircumstances, I am satisfied that the defence of fair comment is not available to Mr. Vidović. [96] Regarding the statements made by Mr. Buhač and even assuming that his comments were on a matter of “public interest” tothose in attendance at the Meeting, I find that the comments made were clearly not based on fact and it would not have been possible forthe remarks to be recognizable as “comment”.

There is no factual basis pleaded for the words of Mr. Buhač. It is not possible for me toconclude that he was honestly expressing the opinion on what can be determined as “proved facts”. I am satisfied that the defence of faircomment is not available to Mr. Buhač. Damages [97] While Mr. Vanagan had stated that he was “very upset” that “people would think I was a criminal” and that his business as anarchitect was affected, Mr. Vanagan was unable to point to any evidence of economic loss that was caused by defamation.

Nevertheless,because I have found the words “lopovi” and “Dinkić’s recipe” to be slander per se, I am satisfied that Mr. Vanagan is entitled todamages. Similarly, Mr. Gordić was unable to point to any evidence of economic loss that was caused by the defamation. However,because I have found the words relating to the name of Mr. Gordić being sent to the Diocese because Mr. Gordić was either “an enemyof the Church” or was “against our Serbian Orthodox Church” to be defamatory and slander per se, I am also satisfied that Mr.

Gordić isentitled to damages. [98] It is submitted by the Plaintiffs that the present case had a significantly larger audience than the following three cases and withstatements at least as serious, so that the present case is said to be deserving of higher damages: (

a) Turco v. Dunlop, [1998] B.C.J.No. 2711 (S.C.) involved a statement “must not be a very good lawyer” to a single person, with the plaintiff awarded $20,000; (

b) Smithv. Cross, [2007] B.C.J. No. 2602 (S.C.) involved three emails that were sent to small groups, mostly members of the legislativeassembly, the entire audience totalling at most 15, with the plaintiff awarded $25,000 plus $10,000 in punitive damages and these awardswere upheld by the Court of Appeal; and (

c) LaPointe v. Summach, [2001] B.C.J. No. 1322 (S.C.) involved the defendant making

statements to four people to the effect that the plaintiff was insolvent, at fault for going over budget, and that he would destroy theplaintiff, with the plaintiff awarded $40,000 general damages plus $10,000 in punitive damages and these awards were upheld by theCourt of Appeal. [99] The publication of the words used by Mr. Buhač to those who were present requires an award to compensate for the defamation,its unknown spread, the hurt feelings of both Plaintiffs, the absence of an apology and the maintenance of the defences at Trial byMr. Buhač.

I am satisfied that it is necessary to make an award which is sufficient to convince those who heard the statements on May 9,2010 or who may have later heard the words used by Mr. Buhač that the statements made by him were entirely without merit. I amsatisfied that these awards should act as vindication for the Plaintiffs within the Serbian community and as a consolation for the wrongsdone to them. [100] In these regards, I adopt the statements made by Crawford J. in Nesbitt v. Neufeld, 2010 BCSC 1605 where he endorsed thefactors laid down in Leenen v.

Canadian Broadcasting Corp., (2000) (ON SC), 48 O.R. (3d) 656 (S.C.J.): The factors generally considered when calculating damages were summarized in Leenen v. Canadian Broadcasting Corp. (2000), (ON SC), 48 O.R. (3d) 656, [2000] O.J. No. 1359 (QL) (S.C.J.) at para. 205 of QL; affirmed (2001), (ON CA), 54 O.R. (3d) 612, [2001] O.J. No. 2229 (QL) (C.A.); leave to appeal to the S.C.C. refused [2001] S.C.C.A.

No. 432 (QL). [205] In attempting to arrive at the appropriate level of general damages in a defamation case, one must always be aware of not only thedamage inflicted to a person's reputation but also the fact that once damaged a reputation is very difficult to restore. Always mindful ofthe fine balance between freedom of speech and the protection of reputation, once the scales have been tipped through defamation, aplaintiff is entitled to be compensated not only for the injury caused by the damage to his integrity within his broad community but alsofor the suffering occasioned by the defamation.

A number of cases including Nagy v. Webb, (SK CA), [1930] 1W.W.R. 357 (Sask. C.A.); Thomas v. C.B.C., (supra); Vogel v. C.B.C., (supra), and Thompson v. NL Broadcasting Ltd. (1976), 1C.C.L.T. 278 (B.C.S.C.) established factors which might be considered in assessing the appropriate level of compensation. While not allinclusive, some of these factors are as follows: (

i) the seriousness of the defamatory statement; (ii) the identity of the accuser; (iii) the breadth of the distribution of the publication of the libel; (iv) republication of the libel; (

v) the failure to give the audience both sides of the picture and not presenting a balanced review; (vi) the desire to increase one's professional reputation or to increase ratings of a particular program; (vii) the conduct of the defendant and defendant's counsel through to the end of trial; (viii) the absence or refusal of any retraction or apology; (ix) the failure to establish a plea of justification. (at para. 74) [101] To describe someone as a “lopovi” is very serious. To suggest that the Plaintiffs had used their involvement in the ConstructionCommittee for their own advantage is also a serious allegation.

While there were less than 60 people in attendance, I find it highlyunlikely that those in attendance would not have spoken to others about what had been said by Mr. Buhač. The defence that the wordshad not been said was maintained throughout the Trial and there was no retraction or apology. [102] Taking into account the factors set out in Leenen, supra, I am satisfied that Mr. Gordić and Mr. Vanagan should each havedamages totalling $45,000.00 arising out of the defamation of Radomir Buhač.

If I am found to be incorrect in determining that thePlaintiffs should not be entitled to the $45,000.00 awarded, then I determine that $25,000.00 of that amount relates to the use of the word“lopovi” and $20,000.00 relates to the references to “Dinkić’s recipe”. [103] The Plaintiffs also submit that the slanderous statements of Mr. Buhač should attract both aggravated and punitive damages. Incases of malice, punitive damages are available where conduct deserving of rebuke and deterrence is required: Hill supra, at paras. 188-199. I can make no such finding of malice here.

As for the question of whether the Plaintiffs should be entitled to aggravated damages,the Response to Amended Notice of Civil Claim denies that the libelous statements were made or, if made, they were meant or wereunderstood to mean or were capable of the meanings alleged to be defamatory of the Plaintiffs. While the defendant who pleads truthwithout the ability to prove it is considered to aggravate the damages of the plaintiff, I cannot conclude that aggravated damages areappropriate in these circumstances.

summary [104] The Plaintiffs will be entitled to damages in the amount of $45,000.00 each against the Defendant, Radomir Buhač. While hewas defamed by the Defendant, Desimir Vidović, the Plaintiff, Miladin Gordić will not be entitled to damage from Desimir Vidović. [105] The parties will be at liberty to speak to the question of costs. “Burnyeat J”

Burnyeat J.