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On Sunday, 17 April 2022 at 15:40:03 UTC-7, drsto...@gmail.com wrote:
> https://www.gangsterismout.com/2022/03/multiple-bikers-killed-in-fayetteville.html

VERY LONG POST: Dr. Stoxxman AKA Ace Ventura AKA Daryl MacAskill Loses Lawsuit Admits To Being Penniless. Ordered To Remove Postings From His Blogs Or Go To Jail. $190k Judgement Against Him More To Come In Special Damages.
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Gregory Carr
1 May 2022, 15:35:02 (15 hours ago)
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IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Canada Easy Investment Store
Corporation v. MacAskill,
2022 BCSC 202
Date: 20220209
Docket: S236505
Registry: New Westminster
Between:
Canada Easy Investment Store Corporation
and Ralph van der Walle
Plaintiffs
And:
Daryl MacAskill
Defendant
Before: The Honourable Mr. Justice Riley
Reasons for Judgment
In Chambers
Counsel for the Plaintiffs: S.K. Patro
No appearance on behalf of the Defendant,
Daryl MacAskill:
Place and Date of Hearing: New Westminster, B.C.
January 13–14, 2022
Place and Date of Decision with Written
Reasons to follow:
New Westminster, B.C.
February 2, 2022
Place and Date of Judgment: New Westminster, B.C.
February 9, 2022
Canada Easy Investment Store Corporation v. MacAskill Page 2
Introduction
[1] These are reasons for judgment on two separate applications brought by the
plaintiffs Canada Easy Investment Store Corporation and Mr. van der Walle in a
defamation action against the defendant Mr. MacAskill. The plaintiffs allege that the
defendant defamed them by posting false and inflammatory statements about them
on various blogs and websites, and by sending emails to various third parties
forwarding links to the defamatory posts. Shortly after filing their notice of civil claim,
the plaintiffs applied for and obtained an interlocutory injunction prohibiting the
defendant from publishing any further allegations about them; the plaintiffs allege
that the defendant proceeded to breach that interlocutory injunction on more than 20
occasions. The two separate applications dealt with in these reasons are: (i) a
summary trial application seeking judgment in favour of the plaintiffs, and (ii) an
application seeking to hold the defendant in contempt of court for violating the terms
of the interlocutory injunction.
Service of the Applications on the Defendant
[2] Before dealing with the merits of the applications, I will address the question
of service.
(i) Service of the Summary Trial Application
[3] Rule 8-1(8) of the Supreme Court Civil Rules (“Rules”) provides that a
summary trial application must be served on the opposing party at least 12 business
days before the hearing date. In this case, the hearing commenced on 13 January
2022, so the materials had to be served no later than 23 December 2021.
[4] I have been presented with an affidavit of service indicating that the
defendant Mr. MacAskill was served with the notice of application and all supporting
materials on 10 December 2021. Service was effected by delivering the materials to
Mr. MacAskill’s email address, listed as an address for service in his response to
civil claim. There is evidence within the application record showing that
Mr. MacAskill has continued to use that email address to correspond directly with the
plaintiff Mr. van der Walle, and with plaintiff’s counsel Mr. Patro, up until as recently
Canada Easy Investment Store Corporation v. MacAskill Page 3
as November of 2021. I am aware that Mr. MacAskill has also used this email
address to communicate with Supreme Court Scheduling as recently as 13 January
2022, the first day of the hearing.
[5] The hearing of this matter was to be via Microsoft Teams. That is indicated on
the notice of application. It is also clear from the relevant notices to the public that at
this point in time, given the ongoing COVID-19 public health emergency, all
chambers applications are being heard via Microsoft Teams. Ms. Dixon, Manager of
Supreme Court Scheduling, confirmed in an email to Mr. MacAskill on 13 January
2013 that the relevant Microsoft Teams link had been sent to him. Mr. MacAskill
responded to that email by indicating that as far as he is concerned, this entire case
is “shelved” for reasons that I will not get into in this ruling. It is not for Mr. MacAskill
to unilaterally declare that the proceedings are “shelved”. Ms. Dixon replied to
Mr. MacAskill stating that the matter was set for hearing commencing on 13 January
2013, the Microsoft Teams link had been sent to him, and if he did not attend the
judge could proceed with the hearing in his absence. That is precisely what I
decided to do.
[6] I am satisfied that Mr. MacAskill was properly served under the Rules.
Counsel for the plaintiffs has done everything that is reasonably within his power to
make Mr. MacAskill aware of the hearing. Mr. MacAskill had notice of the hearing
and chose not to attend. The plaintiffs should not be held hostage to Mr. MacAskill’s
unilateral decision not to participate in the process despite being given ample
opportunity to do so.
(ii) Service of the Contempt Application
[7] Rule 22-8(11) states that a party applying for a contempt order must serve the
alleged contemnor with notice and a supporting affidavit at least seven days before
the hearing. Under Rule 4-3(1)(i), “unless the court otherwise orders”, a contempt
application must be served personally.
[8] In this case, counsel for the plaintiffs applied for and was granted an order for
substituted service of the contempt application. The order for substituted service was
Canada Easy Investment Store Corporation v. MacAskill Page 4
granted by Master Elwood on 15 December 2021. It provided that Mr. MacAskill
could be served by “alternative method”, namely by delivering the materials to
Mr. MacAskill’s email and that such service would be “deemed good service”. The
basis for obtaining an order for substituted service was fully set out in an affidavit
filed before Master Elwood. I am not going to review the details here, beyond
indicating that plaintiff’s counsel put before the court serious concerns related to
prior efforts to locate and personally serve Mr. MacAskill. Master Elwood was
obviously satisfied that those concerns justified an order for substituted service.
[9] I have been presented with an affidavit of service proving that Mr. MacAskill
was in fact served with a copy of the contempt application by email on 17 December
2021. The supporting materials had previously been served on Mr. MacAskill by
email on 10 December 2021. The email address is listed on Mr. MacAskill’s
response to civil claim and it is the email address that he has habitually used in
corresponding both with the plaintiff himself and with plaintiff’s counsel throughout
the litigation. I note, as well, that Mr. MacAskill has corresponded with the Manager
of Supreme Court Scheduling in New Westminster using this email address as
recently as 13 January 2021, the first day of the two-day hearing before me..
[10] I will not repeat what is said above about Mr. MacAskill’s communications
with Supreme Court Scheduling or the steps that have been taken to allow
Mr. MacAskill to attend this hearing by Microsoft Teams. Once again, with respect to
the contempt application, I am satisfied that Mr. MacAskill was served in compliance
with the Rules, had notice of the hearing, and has chosen not to attend.
[11] I repeat that the plaintiffs should not be held hostage to Mr. MacAskill’s
unilateral decision not to participate in the process. There is case law under Rule 22-
8(11) holding that where the alleged contemnor has been duly served and does not
attend, the court can proceed in his or her absence: see Law Society of British
Columbia v. Gorman, 2011 BCSC 1484 at paras. 11–15 and the cases cited therein.
Canada Easy Investment Store Corporation v. MacAskill Page 5
Facts
[12] The corporate plaintiff Canada Easy Investment Store Corporation (“Canada
Easy Invest”) is a British Columbia company with a registered office in Surrey. B.C.
The personal plaintiff Mr. van der Walle is an officer and director of Canada Easy
Invest.
[13] Canada Easy Invest runs an investment fund, the Western Canada Monthly
Income Fund, that provides financing for various ventures, including a real estate
development in the Comox Valley called the Beach House at Saratoga (the “Beach
House development”). Mr. van der Walle is Canada Easy Invest’s compliance officer
and he is an authorized dealer of the company’s investment products..
[14] The defendant Mr. MacAskill has no apparent personal or business
connection with either Canada Easy Invest or Mr. van der Walle. Mr. MacAskill is the
creator, or at least the person in control of several blogs, which I will refer to as the
Dr. Stoxxman blog and the Gangsterism Out blog. The particular web addresses for
these blogs are included in the evidence, but I do not consider it necessary to list
them in my reasons. Mr. MacAskill uses these blogs to publish stories, reports, and
opinion pieces on the internet through a service operated by Blogger. As I will
describe below, there is ample evidence in the record to establish that Mr. MacAskill
is the person in control of and responsible for the posts on these two blogs.
Mr. MacAskill often uses the email address [content redacted]. The contact name for
that email account is Ace Ventura. In other words, when one types in that email
address, the contact name Ace Ventura appears as the name of the email recipient.
[15] Commencing in or about September of 2020, Mr. MacAskill started making
blog posts referring to Canada Easy Invest and Mr. van der Walle. The initial post
appeared on the Dr. Stoxxman Blog. The title of the post refers to Mr. van der Walle
by name. It purports to review his past business experience and current business
activities using phrases like “dodgy real estate projects”, “scam real estate projects”,
and “securities scams”.
Canada Easy Investment Store Corporation v. MacAskill Page 6
[16] I will pause my review of the narrative here to note that the plaintiffs have
consistently maintained that Mr. MacAskill’s allegations of dishonesty and
impropriety are false and entirely without foundation. On the record before me,
Mr. MacAskill has never produced a shred of evidence to support his allegations.
[17] To continue with the narrative, the plaintiffs retained counsel to assist in
nipping these blog posts in the bud. On 20 January 2021, the solicitor for the
plaintiffs sent a cease and desist letter to Mr. MacAskill at the Dr. Stoxxman email
address. The next day, Mr. MacAskill sent a reply email stating that: (i) the cease
and desist letter had, for some reason, been sent to the B.C. Securities Commission;
(ii) Mr. MacAskill would accept service of documents by email; (iii) he would be
moving his blog posts about Canada Easy Invest and Mr. van der Walle to his
“flagship blog”, which “currently serves about 6,000 eyeballs per day”; and (iv)
according to Mr. MacAskill, “[t]he public need to be warned about open scum doing
their scams in the clear open”. There was a link in the email to the Gangsterism Out
blog.
[18] Some time around 4 February 2021, the initial post from the Dr. Stoxxman
Blog appeared on the Gangsterism Out Blog.
[19] On 8 March 2021, the plaintiffs filed a notice of civil claim alleging defamation
and seeking general damages, special damages, aggravated damages, punitive
damages, and a permanent injunction.
[20] The plaintiffs subsequently applied for an interim injunction against the
defendant. On 26 March 2021, after a hearing attended by Mr. MacAskill, Mr. Justice
Blok granted an interlocutory injunction prohibiting him from publishing any
accusatory or disparaging allegations regarding the honesty, trustworthiness,
reputation, or alleged improper behaviour of the plaintiffs, their counsel, and their
agents, in any forum whatsoever. The order also compelled Mr. MacAskill to remove
the offensive posts from the Gangsterism Out and the Dr. Stoxxman blogs.
Mr. MacAskill was in court when Blok J. made the order, and an entered copy of the
order was later emailed to him at the Dr. Stoxxman email address, which is the email
Canada Easy Investment Store Corporation v. MacAskill Page 7
address listed on his response to civil claim. As explained above, when one types
that email address, the name of the email recipient automatically changes to Ace
Ventura.
[21] Initially, Mr. MacAskill complied with the interim injunction by removing the
subject blog posts and ceasing any further posts about the plaintiffs. However,
Mr. MacAskill subsequently renewed his campaign against the plaintiffs by
publishing derogatory posts about them, as described below.
[22] On 6 April 2021, Mr. MacAskill filed his response to civil claim. In it, he alleges
that: (i) Mr. van der Walle is running a “Ponzi scheme” or “classic Ponzi securities
fraud” targeting mostly seniors in British Columbia; (ii) Mr. van der Walle’s projects
are “designed to fail”, with the intent of committing a “theft” upon the public’s
retirement savings; (iii) Mr. van der Walle offers perjury as easily as his fraudulent
investments to British Columbia seniors; and (v) Mr. van der Walle is a “securities
conman” who “targets seniors”.
[23] I do not suggest here that the response to civil claim is itself a defamatory
publication; it is a court filing, not a publication. However, the only form of “defence”
that I can glean from Mr. MacAskill’s response to civil claim is a plea of justification;
that is, an assertion that the statements Mr. MacAskill is alleged to have published
are justified because they are true. Of course, the response to civil claim is not
evidence of anything, and to make out a defence of justification the defendant would
have to tender admissible evidence to support his public allegations against the
plaintiffs.
[24] I am not going to review all of the subsequent posts. I will simply summarize
the evidence by noting that between 20 May 2021 and 24 September 2021 inclusive,
at least nine separate posts appeared on the Gangsterism Out blog. In a post on 20
May 2021, Mr. MacAskill referred to the defamation action brought by the plaintiff
Mr. van der Walle. The post complained that upon filing the action, Mr. van der Walle
was able to obtain “instant high court relief” for “the most insulting claims of
defamation”, in this case a “Ponzi scheme on seniors”. Beginning in August of 2021,
Canada Easy Investment Store Corporation v. MacAskill Page 8
there were a series of posts about the Beach House development, including
allegations that: (1) the vendors were making false claims in the marketing of
condominium units, and were trying to “unload” sales contracts for “imaginary units”;
(2) the developers were “clowns” who “have never built a damn thing” and “have no
problem pretending otherwise”; (3) the developers did not have a real office and
used a fictitious business address; (4) the development permit had expired or was
going to expire such that all of the contracts for unit sales were void; and (5) the
general contractor had nothing to do with the project, and the development was
“without a general contractor”, such that those responsible for the project were
“whistling out their fraudulent assholes”.
[25] There were also posts about the Western Canada Monthly Income Fund,
including: (1) a suggestion that the fund was insolvent, appearing alongside a picture
of a sinking ship; and (2) a series of posts referencing the passing away of
Mr. Fowler, one of the fund’s principals. These posts asserted that Mr. Fowler’s
death had to be formally disclosed to investors and the failure to do so was a
securities offence, and that Mr. Fowler’s passing would entitle purchasers of condo
units at the Beach House to walk away from their investment and demand the return
of their deposits. Finally, there were several posts about Viet Do, a real estate agent
said to have been involved in selling one or more condominium units at the Beach
House development.
[26] In terms of the connection between these blog posts and the plaintiffs Canada
Easy Invest and Mr. van der Walle, I note several things. First, the Western Canada
Monthly Income Fund is a real estate investment fund administered by the corporate
plaintiff Canada Easy Invest. Second, the Beach House development is financed by
the Western Canada Monthly Income Fund. Third, Mr. Fowler is one of the principals
of the Western Canada Monthly Income Fund. Fourth, Mr. MacAskill sent a number
of emails from the Dr. Stoxxman email account to Mr. van der Walle, his counsel,
and others, including officials at the British Columbia Securities Commission,
attaching links to the updated Gangsterism Out posts I have just described. One of
these emails states, in part, “[my] involvement started with a lawsuit from one Ralph
Canada Easy Investment Store Corporation v. MacAskill Page 9
van der Walle. His partners in crime are Mr. Fowler and Mr. Warren Stevenson.”
Thus, there is evidence that Mr. MacAskill himself clearly drew a link between the
plaintiffs and the blog posts, referencing, among other things, the Beach House
development and Mr. Fowler.
[27] The plaintiffs allege that the blog posts I have just described were both
defamatory and constituted breaches of the interim injunction. On the defamation
point, I note that the plaintiffs have filed and served an amended notice of civil claim
adding these blog posts to their claim. With regard to the interim injunction, it
prohibited Mr. MacAskill from publishing allegations or accusations against not just
the plaintiffs themselves, but also their agents, a term that would clearly include the
general contractor for the Beach House development, the Western Canada Monthly
Income Fund, and its principals, including Mr. Fowler.
[28] Mr. MacAskill also sent a series of emails to Mr. van der Walle and to the
plaintiff’s counsel Mr. Patro demanding payment of money, allegedly for “settlement”
of the claim brought by the plaintiffs. Although there is a body of law providing that
“settlement discussions” are privileged, I do not find that Mr. MacAskill’s emails
qualify for a number of reasons. To begin with, the emails are unsolicited, are clearly
not part of a settlement dialogue, and are not marked “without prejudice”. Indeed, at
a certain point counsel for the plaintiffs informed Mr. MacAskill that his clients were
not interested in his alleged settlement proposals, which counsel fairly regarded as
attempts at extortion. Furthermore, Mr. MacAskill himself copied or forwarded some
of the emails to third parties wholly unconnected to the lawsuit, including officials at
the British Columbia Securities Commission, thus indicating no desire on
Mr. MacAskill’s part to keep them confidential. Finally, having regard to the content
of the emails which I will describe in a moment, no reasonable person could regard
them as genuine offers to settle litigation. They are, rather, threats and demands for
money in the nature of shakedowns. I conclude that these emails amount to an
abuse of process and are therefore not protected by the law of settlement privilege:
see R. v. Delchev, 2015 ONCA 381 at para. 34 applying Sable Offshore Energy Inc.
v. Ameron International Corp., 2013 SCC 37 at para. 19.
Canada Easy Investment Store Corporation v. MacAskill Page 10
[29] That brings me to the content of the emails Mr. MacAskill sent to Mr. van der
Walle, counsel for the plaintiffs, and others, demanding money. Mr. MacAskill sent
the first of these emails to Mr. Patro on 15 March 2021. I should note that Mr. van
der Walle was not a party to this email, so technically he is not in a position to
identify it as having actually been sent by Mr. MacAskill. In that sense, the copy of
the email attached to Mr. van der Walle’s second affidavit is hearsay. However,
Mr. MacAskill referred to the substance of this email in a subsequent email that he
sent directly to Mr. van der Walle, so in that sense Mr. MacAskill’s subsequent email
adopted the contents of the prior email to Mr. van der Walle’s lawyer Mr. Patro.
Returning to the narrative, Mr. MacAskill’s 15 March 2021 email to Mr. Patro stated
that “for the amount of $5,000” Mr. MacAskill would “remove material and accept a
payment in that amount for settlement of all claims”.
[30] Then on 22 March 2021, Mr. MacAskill sent an email directly to Mr. van der
Walle asking, “Did that crooked [racist word deleted] tell you I’d settle for $5k?”.
Mr. MacAskill went on to explain that “for less than what it’s costing you”
(presumably in legal fees), he would “remove that which is twisting those Ponzi
panties of yours”, and he would “bury this”. The email concluded by referring to
Mr. van der Walle as a “wicked crooked goofy crook”.
[31] In a subsequent email dated 22 March 2021, Mr. MacAskill increased his
demand to $10,000. In an email to Mr. van der Walle and his counsel on 7 May
2021, Mr. MacAskill stated that he was “1,000% judgment proof and indigent
meaning this costs me zero and you will never collect a red cent from me”. In
subsequent emails, Mr. MacAskill said the deadline had passed and promised no
further settlement proposals.
[32] Regrettably, Mr. MacAskill was not true to his word. On 28 May 2021
Mr. MacAskill sent an email directly to Mr. van der Walle demanding that Mr.. van der
Walle “settle pronto” or Mr. MacAskill would “gleefully [expletive] for $100k plus”.
Read together with the other emails, I interpret this to mean that if Mr. van der Walle
did not pay the money Mr. MacAskill was demanding, Mr. MacAskill would cause
Canada Easy Investment Store Corporation v. MacAskill Page 11
Mr. van der Walle to run up legal costs in excess of $100,000. In another email on
the same day, Mr. MacAskill made a demand to “pay me off”.
[33] On 12 July 2021, Mr. van der Walle sent another email with a subject line that
read “$5k by Friday”. The body of the email continued from there, stating “or $40k
thereafter”, and that Mr. MacAskill “will offer no further settlement terms” after the
expiration of this deadline. It concluded with an assertion that Mr. van der Walle was
“a conman and a bully” who deserved “public retribution” for his “grossly unethical
conduct”. Mr. MacAskill later forwarded that email to a number of other individuals,
including Mr. Patro and various third parties with no direct connection to the lawsuit
brought by the plaintiffs against Mr. MacAskill. I should note that Mr. MacAskill also
sent emails directly to Mr. Patro, to which Mr. van der Walle was not a party. As I
have discussed above, Mr. van der Walle is not in a position to properly identify and
tender these emails as attachments to his affidavit because he was not a party to
them. They are hearsay.
[34] Mr. MacAskill also sent emails directly to Mr. van der Walle and various third
parties attaching links to his blog posts. As these emails were sent to individuals
other than the plaintiffs or their counsel, they are evidence of publication as
discussed in my legal analysis below.
[35] I conclude my review of the facts by noting that, while the plaintiffs have no
burden of doing so, they have placed evidence before the court to refute many of the
allegations in Mr. MacAskill’s published statements about them. I am not going to
review all of this evidence here, although I may refer to some specific aspects in my
analysis.
[36] There are two additional procedural developments in the case that are of
note. These events do not form part of the application record in either the summary
trial or the contempt application, but are merely included in my summary of facts as
part of the narrative of the case.
Canada Easy Investment Store Corporation v. MacAskill Page 12
[37] On 8 July 2021, Mr. MacAskill filed a notice of application to stay or dismiss
the action against him pursuant to the Protection of Public Participation Act, S.B.C.
2019, c. 3 [Protection of Public Participation Act]. In that application, Mr. MacAskill
asserted that he was the author of “dozens of blogs, some related to securities
scams, and others related to crime”, and that Mr. van der Walle’s “operation” is “a
matter of public interest by virtue of his continuous solicitation of the public for their
retirement savings”. Mr. MacAskill’s notice further alleges that he “reported truthful
facts and did so accurately”. It then goes on to recount or summarize some of the
allegations made against Mr. van der Walle. Mr. MacAskill’s application for an order
under the Protection of Public Participation Act came on for hearing before me on 1
October 2021. It was dismissed because Mr. MacAskill did not attend the hearing
and could not be reached despite considerable effort to give him an opportunity to
speak to the matter. The application was dismissed on terms allowing Mr. MacAskill
the right to renew it upon being granted leave of the court to do so. Mr. MacAskill
never sought leave to renew the application. As I have noted above, the plaintiffs did
not include the details of this application in the record for the two applications now
before me, the summary trial, or the contempt application. Although the plaintiffs
would arguably have been permitted to rely on the assertions in Mr. MacAskill’s
pleadings as admissions on his part, they did not seek to do so, and I will not place
any reliance on any of these assertions for the purposes of determining whether the
plaintiffs have proven their case in either the summary trial or the contempt
application.
[38] On 16 September 2021, the plaintiffs filed an application to have
Mr. MacAskill found in contempt of court for violating the terms of Blok J.’s interim
order dated 26 March 2021. The application also sought additional interim
injunctions prohibiting Mr. MacAskill from contacting any known or alleged business
partners, investors, or clients of the plaintiffs—in other words, a no contact order.
The application came on for hearing on 14 October 2021. Mr. MacAskill did not
attend the hearing. Blok J. granted the no contact order, and adjourned the
application for an order of contempt.
Canada Easy Investment Store Corporation v. MacAskill Page 13
(1) Summary Trial Application
(a) Elements of the Tort of Defamation
[39] In an action for defamation, the plaintiff must establish on a balance of
probabilities that the defendant was the author of the allegedly defamatory
statements: Hudson v. Myong, 2020 BCSC 517 at paras. 128–130 [Hudson]. The
plaintiff must also prove the three elements of defamation, namely: (a) that the
impugned statements were defamatory; (b) that the words in fact referred to the
plaintiff; and (c) that the statements were published, meaning that they were
communicated to at least one other person: Grant v. Torstar Corp., 2009 SCC 61 at
para. 28 [Grant]. Defamation is a strict liability tort, meaning that the plaintiff is not
required to prove intent to harm or even carelessness on the part of the defendant.
Once the essential elements of the cause of action are made out, the onus shifts to
the defendant to establish a defence: Grant at para. 29.
[40] In the case at bar I have no difficulty concluding that Mr. MacAskill was the
author of the statements which are the subject of this defamation action. The
publications first appeared on the Dr. Stoxxman blog. This provoked a cease and
desist letter, which in turn generated a response from the Dr. Stoxxman email
account. The same email cross-referenced the author’s “flagship blog”, the
Gangsterism Out blog. Mr. MacAskill was served personally with the notice of civil
claim and responded to it. Thereafter, there were posts on the Gangsterism Out blog
complaining about the effects of the interim injunction in this particular case on
“[y]our author”, who I infer is Mr. MacAskill, considering that he is the only defendant
named on the interim injunction. Moreover, some of the emails from the
Dr. Stoxxman email address make explicit references to the litigation itself. An
example is an email dated 25 May 2021 from the Dr. Stoxxman email account to
Mr. van der Walle, referring to an interim application in the court case in which
Mr. MacAskill is named as the sole defendant. Finally, one of the emails from the
Dr. Stoxxman account, dated 23 August 2021, refers to the defamation suit brought
by Mr. van der Walle and concludes by giving the author’s name as Daryl MacAskill.
Mr. MacAskill sent this email to the British Columbia Financial Services Authority,
Canada Easy Investment Store Corporation v. MacAskill Page 14
and then forwarded it to a number of other people, including Mr. van der Walle. I
conclude that there is abundant evidence linking the defendant Mr. MacAskill to the
Dr. Stoxxman email account, and abundant evidence showing that Mr. MacAskill
was the author of the posts on both the Dr. Stoxxman blog and the Gangsterism Out
blog.
[41] With regard to the first element of defamation, the plaintiffs must prove that
the impugned statements are defamatory. I have no difficulty concluding that a
reasonable person would find the subject blog posts to be defamatory, in the sense
that they “lower the reputation of the plaintiff in the estimation of right-thinking
members of society generally, or expose the plaintiff to hatred, contempt, or ridicule”:
Hudson at para. 105.
[42] Turning to the second element, I am satisfied that the blog posts refer to the
plaintiffs. The original blog post refers to Mr. van der Walle by name and also clearly
references the corporate plaintiff. At least one subsequent post also refers to Mr. van
der Walle by name, alleging his involvement in a Ponzi scheme on seniors. The
subsequent posts refer to other individuals and entities, but I outlined the link
between those posts and the plaintiffs and their business activities in my review of
the facts above. In addition to the content of the blog posts themselves, from which
one can readily infer a link to the plaintiffs and their business activities, there are
also Mr. MacAskill’s emails to Mr. van der Walle and other individuals, attaching
links to the posts. These emails are evidence of the link drawn by the author of the
posts to the plaintiffs in this action.
[43] With regard to the third element, proof of publication, the law requires proof
that the defamatory meaning was conveyed to at least one third party who actually
read it: Hudson at para. 111, citing Crookes v. Newton, 2011 SCC 47 at para.. 16.
Although there is no presumption that material placed on the internet has been
“published”, a court may infer publication, and in doing so may take into account the
modern realities of information dissemination via the internet: Hudson at para. 112,
citing Bernstein v. Poon, 2015 ONSC 155 at para. 94; Hee Creations Group Ltd. v.
Canada Easy Investment Store Corporation v. MacAskill Page 15
Chow, 2018 BCSC 260 at paras. 74–85; Holden v. Hanlon, 2019 BCSC 622 at
paras. 59–66.
[44] I should note that some of the evidence relied upon by the plaintiffs is hearsay
and I expressly decline to rely on it. In particular, Mr. van der Walle’s fourth affidavit
refers to email enquiries that he received either directly or indirectly from third parties
claiming to have read one or more of the posts. These emails are hearsay accounts
offered by third parties who have not sworn affidavits. To provide admissible
evidence of these facts, the plaintiffs would have had to tender affidavits from the
individuals claiming to have read the posts. They did not do that.
[45] Still, even without that direct evidence, there is a wealth of other evidence
supporting an inference that the defamatory statements were published. The
evidence of publication includes emails that Mr. MacAskill sent to Mr. van der Walle
and multiple third parties containing links to the blog posts themselves. There is also
an assertion in an email, which I find was clearly authored by Mr. MacAskill himself,
that the Gangsterism Out blog serves “6,000 eyeballs per day”. There is evidence
that one of Mr. MacAskill’s posts on some kind of internet message board had 216
views. There is a wealth of other evidence supporting an inference of publication, but
I do not need to outline all of it here. There is an overwhelming body of evidence
from which I readily infer that the posts authored by Mr. MacAskill were published on
the internet and read by many people.
(b) Possible Defences
[46] Depending on the context and the nature of the impugned statements, the
potential defences to a claim of libel or defamation are: (i) justification, (ii) privilege or
qualified privilege, (iii) fair comment, and (iv) public interest qualified communication.
As noted, Mr. MacAskill’s response to civil claim does not clearly articulate a
particular defence to the defamation claim. That, together with the fact that
Mr. MacAskill did not appear at the hearing of this summary trial application, makes
it difficult to ascertain which if any of the four defences described above have been
or could be invoked in this case. Certainly, the defendant has not presented any
Canada Easy Investment Store Corporation v. MacAskill Page 16
evidence in support of any defence whatsoever. However, in theory, a defendant
might be able to point to evidence within the plaintiff’s case to support a defence,
provided that evidence establishes the facts relied upon on a balance of
probabilities. For the sake of completeness, I will briefly address each of the four
defences listed above and explain why they are not made out on the evidence
before me.
[47] To succeed in a plea of justification, the defendant must establish on a
balance of probabilities that the impugned statements are true or substantially true:
Grant at para. 33. The defendant is not required to prove the literal truth of every
word in the impugned statements, so long as the “gist of the sting or charge” is
proven to be true: Hudson at para. 141. The defence will not succeed if the overall
impression of a statement is false, even if some of the words contained in it are
literally true: Hudson at para. 141.
[48] The defendant’s initial blog posts allege that the personal plaintiff Mr. van der
Walle, among other things, has a history of involvement in “dodgy real estate
projects”, “scam real estate projects”, and “securities scams”, and that he is currently
engaged in a “Ponzi scheme”, or “classic Ponzi securities fraud”. In subsequent blog
posts, Mr. MacAskill alleges that Canada Easy Invest’s real estate investment fund
is effectively insolvent, and that the current real estate development financed by the
fund is a sham, is about to have its development permit cancelled, and has no
general contractor. I could go on but I will not. The defendant has not offered a shred
of evidence to prove any of these serious allegations of dishonesty and fraud. Nor is
there anything in the record before me that would establish the truth of
Mr. MacAskill’s allegations. Indeed, while not legally obligated to disprove the
allegations, the plaintiffs have presented evidence to show that the defendant’s
allegations are groundless and could not be true. On this record, there is simply no
basis for a defence of justification.
[49] The defence of privilege or qualified privilege applies where the impugned
statements are shown to have been made on an occasion of privilege recognized in
Canada Easy Investment Store Corporation v. MacAskill Page 17
law. In such cases, the privilege attaches to the occasion on which the statements
were made, and not to the statements themselves: Hill v. Church of Scientology,
[1995] 2 S.C.R. 1130 at para. 143, 1995 CanLII 59 [Hill]. In such circumstances, the
bona fides of the defendant are presumed, and the defendant is free to make
statements that would otherwise qualify as defamatory. Even where it applies, the
privilege is not absolute, and it can be defeated where the dominant motive for
publishing the statement is actual or express malice: Hill at para. 144. In this context,
malice has been interpreted broadly to include instances where the defendant
speaks dishonestly or with reckless disregard for the truth: Hill at para. 145. Finally,
the privilege only applies to the communication of information that is reasonably
appropriate to the context in which the privilege arises: Hill at para. 147..
[50] The defendant has not expressly pleaded privilege and has not identified any
particular occasion or context in which the impugned public statements could be
protected by privilege. The one exception that could arise is the possibility of
privilege attaching to a complaint made to a regulatory body like the British Columbia
Securities Commission or the British Columbia Financial Services Authority. There
are several emails from Mr. MacAskill to these bodies. But even assuming those
particular emails were protected by privilege, the privilege would not extend to the
blog posts themselves, which were posted on the internet and available to the world
at large. No privilege could ever be found to attach to the posts. Moreover, I find that
any claim of privilege that could possibly arise on the facts of this case is defeated
by proof of malice on the part of the defendant. The basis for my finding of malice is
addressed below and I adopt it here.
[51] To make out a defence of fair comment, the defendant must show that the
comment in question: (a) was made on a matter of public interest, (b) was based on
fact, (c) is recognizable as comment as opposed to fact, and (d) meets the objective
test that a reasonable person might honestly express such a comment or opinion
based on the proven facts. Even where this objective test is met, the defence will fail
where the plaintiff shows that the comment in question was actuated by express
malice: WIC Radio Ltd. v. Simpson, 2008 SCC 40 at para. 1; Hudson at para. 147.
Canada Easy Investment Store Corporation v. MacAskill Page 18
[52] In the case before me, the bulk of the impugned assertions in the defendant’s
blog posts are expressed as facts, not comment. Moreover, none of the impugned
assertions are things a reasonable person might express as a fair comment on the
proven facts. The vast majority of Mr. MacAskill’s statements are bald allegations of
impropriety unsupported by any facts whatsoever. To the extent that some of
Mr. MacAskill’s remarks are based on underlying facts, the stated facts do not
provide an objective basis for inferring fraud or dishonesty on the part of the plaintiffs
or their agents. For example, the fact that the original general contractor listed in a
development permit does not end up being the contractor who actually carries out
the construction is not proof that there is no contractor or that the construction
project is a sham or is about to collapse. It is certainly well within the range of
possibility that a general contractor who works with the developer at the permit stage
does not win the bid to do the contracting work. That does not mean there is no
general contractor; it just means that a different contractor was selected to do the
work. I could give other examples of facts that Mr. MacAskill has misunderstood or
misinterpreted as proof of fraud. The point is, Mr. MacAskill, having initially cast
Mr. van der Walle and his company as fraudsters, subsequently seized upon any
particular fact or event that he did not understand, and, without any effort to
ascertain the truth, twisted that fact into a basis for advancing further allegations of
impropriety. Finally, once again I hold that any possible fair comment defence that
might have been raised by Mr. MacAskill could not be sustained in light of my finding
of malice, as explained below.
[53] To make out the defence of public interest qualified communication, the
publication must relate to a matter of public interest, and the defendant must prove
that the publication was responsible in that the defendant was diligent in trying to
verify the allegations, having regard to all the relevant circumstances: Grant at
paras. 101, 105–106. In this case, assuming without deciding that Mr. MacAskill’s
blog posts qualify as relating to matters of public interest, the defence must fail due
to lack of proof of diligence. As I have noted above, many of the most serious
allegations are simply baseless and the defendant has not offered any evidence or
proof of underlying facts to support them. And even with respect to the allegations
Canada Easy Investment Store Corporation v. MacAskill Page 19
that appear to start with a kernel of information that might be true, as explained
above the defendant has twisted that kernel of information into an allegation of
impropriety without any effort to investigate or understand it. None of the relevant
factors listed in Grant at paras. 110 to 126 weigh in the defendant’s favour.
[54] I conclude with a discussion of malice. Proof of malice will defeat any plea of
qualified privilege or fair comment. Malice has been defined to encompass not only
actual malicious intent or mala fides, but also instances where the defendant speaks
dishonestly or with reckless disregard for the truth: Hill at para. 145. In the case at
bar, I find that there is overwhelming evidence of actual malice, as well as
dishonesty and reckless disregard for the truth.
[55] The proof of actual mala fides comes from Mr. MacAskill’s emails to Mr. van
der Walle and his counsel demanding money to “settle” the case. These emails were
not genuine offers to settle litigation, but rather explicit threats to run up legal costs
unless the plaintiffs paid Mr. MacAskill to take down the offensive posts. Basically,
Mr. MacAskill made baseless allegations of fraud and dishonesty and then
demanded money to withdraw them and end the court case. Mr. MacAskill’s emails
to Mr. van der Walle are riddled with offensive language and personal insults. All of
that is the very essence of malicious intent. Many of Mr. MacAskill’s demands for
payment were made over the same time frame that he was continuing to update his
blogs with further defamatory posts, thus colouring his entire course of conduct as
one driven by mala fides.
[56] The proof of dishonesty and reckless disregard for the truth comes from the
nature of the allegations, the absence of any factual basis to support them, and the
absence of any genuine much less objectively reasonable effort to vet or investigate
the allegations before making them public.
(c) Conclusion on Liability
[57] To sum all this up, I find that the plaintiffs have proven that the defendant
committed the tort of defamation by publishing blog posts and also by sending
emails to third parties attaching links to the blog posts. In particular, I find that the
Canada Easy Investment Store Corporation v. MacAskill Page 20
defendant defamed the plaintiffs in: (i) the original post on the Dr. Stoxxman blog, (ii)
the reproduction of that post on the Gangsterism Out blog, (iii) at least nine
subsequent posts or updates on the Gangsterism Out blog, and (iv) a number of
emails to third parties enclosing links to the Gangsterism Out blog. The posts were
published on the internet and I infer on all the admissible evidence that they were
read by many people, although I am unable to further quantify the extent of
publication. None of the defences to a claim of defamation apply.
(d) Remedies
[58] With regard to the claim for general damages, I am mindful of the relevant
factors discussed in Hudson at paras. 155–156. I agree with counsel for the plaintiffs
that Mr. MacAskill’s defamatory statements involved a direct attack on the honesty,
integrity, and core competencies of both Mr. van der Walle and Canada Easy Invest,
going to the core of their business, their stewardship of investor monies, and the
viability of both their real estate investment fund and their ongoing real estate
development project. I infer that there has been damage to the goodwill of both
plaintiffs. The resulting harms, both financial and non-financial, are difficult to
quantify. Given the number of blog posts and the scope of Mr. MacAskill’s
readership, based on his own statements, and the sensitivity of the market, I infer
that the damage has been significant. With regard to the range of damages, I refer to
Hudson at para. 186. In this particular case, I find that the plaintiffs are entitled to a
total of $150,000 in general damages. Of that, $75,000 will be payable to Mr. van
der Walle and $75,000 will be payable to Canada Easy Invest.
[59] I also find that aggravated damages are justified based on the finding that
Mr. MacAskill’s conduct was motivated by actual mala fides, and also a reckless
disregard for the truth. I would award $10,000, which once again I would allocate
equally between the two plaintiffs, meaning that $5,000 will be payable to Mr. van
der Walle and $5,000 will be payable to Canada Easy Invest.
[60] The plaintiffs also seek punitive damages. Punitive damages are available in
exceptional cases to punish the defendant. The court must consider whether
Canada Easy Investment Store Corporation v. MacAskill Page 21
punitive damages are necessary after taking into account the potential punitive
effects of the general damages and aggravated damages awards. Having awarded a
total of $160,000 in general and aggravated damages, the question to be asked is
whether anything more is required. I certainly recognize that these are substantial
sums of money. However, there are two particular aspects of this case that require
me to give serious consideration to an award of punitive damages.
[61] The first is the fact that after the interim injunction was granted, Mr. MacAskill
did not cease his campaign against the plaintiffs. Indeed, he cited the injunction itself
in a blog post where he again accused Mr. van der Walle of running a Ponzi scheme
targeting seniors. He repeatedly violated the injunction by posting blog updates
making allegations against the plaintiff’s business interests, including its real estate
investment fund and the real estate development financed through that fund. I
acknowledge that I am also dealing with a parallel contempt of court application.
Clearly I would be obliged to take into account any punitive damages award in
deciding upon an appropriate disposition the contempt application, to avoid any
concern about double punishment for the same conduct. Of course, the damage
award can be based in facts proven on a balance of probabilities, whereas a higher
burden of proof will be applied in the contempt proceeding.
[62] The second important aspect of the case insofar as punitive damages are
concerned is Mr. MacAskill’s obvious and transparent attempt to use the litigation
process as a means of pressuring or extorting the plaintiffs to pay him off to go
away. He asserted that he was impecunious and judgment proof, and that if the
plaintiffs did not pay him off he would drive up the legal costs. I consider this to be
evidence of an abuse of process that warrants rebuke by the court.
[63] Even after taking into account the general and aggravated damages awards, I
find it necessary to award a further $30,000 in punitive damages to punish
Mr. MacAskill’s conduct and, one would hope, deter him from engaging in this kind
of manipulative, harmful, and socially destructive behaviour in the future. Again, I
would divide this amount equally between the two plaintiffs, meaning that $15,000
Canada Easy Investment Store Corporation v. MacAskill Page 22
will be payable to Mr. van der Walle and $15,000 will be payable to Canada Easy
Invest.
[64] To sum up, the defendant Mr. MacAskill is required to pay a total of $190,000
in damages as follows: (a) general damages of $75,000 to Mr. van der Walle and a
further $75,000 to Canada Easy Invest; (b) aggravated damages of $5,000 to
Mr. van der Walle and a further $5,000 to Canada Easy Invest; and (c) punitive
damages of $15,000 to Mr. van der Walle and a further $15,000 to Canada Easy
Invest.
[65] The plaintiffs also seek a permanent injunction restraining Mr. MacAskill from
making further allegations against them, their counsel, or their agents in the future,
and compelling Mr. MacAskill to remove all of the defamatory blog posts which are
the subject of their current claim.
[66] Permanent injunctive relief is an extraordinary remedy that will only be made
in the clearest of cases, where the court is satisfied that the defendant is likely to
make further defamatory statements and there is a real possibility that the plaintiffs
would not be able to obtain compensation by way of damages for any such future
statements: Hudson at para. 211, citing Newman v. Halstead, 2006 BCSC 65 at
para. 298.
[67] I find that those criteria are made out in this case. Even after the interim
injunction was issued, Mr. MacAskill continued to post defamatory statements about
the plaintiffs and their activities. I consider it likely that he will continue to do so
unless a further order is made allowing for the possibility of other remedies, including
further contempt of court proceedings. Moreover, Mr. MacAskill has himself claimed
to be indigent and judgment proof such that the plaintiffs will never get “one red cent”
from him. Thus, while the damages award of $190,000 is warranted and important
as a means of compensating the plaintiffs and deterring and punishing
Mr. MacAskill, it may well be a hollow victory for the plaintiffs. I therefore find this to
be an appropriate case for a permanent injunction, and I would grant such an order,
on the following terms:
Canada Easy Investment Store Corporation v. MacAskill Page 23
(1) Mr. MacAskill is permanently restrained from publishing any accusatory
or disparaging allegations regarding the honesty, trustworthiness, reputation,
or alleged improper behaviour of the plaintiffs, their counsel, and their agents
(“the Protected Parties”), in any forum whatsoever.
(2) Upon being presented with a copy of this Order, Mr. MacAskill is
required to forthwith remove all current or existing posts about the Protected
Parties from the Gangsterism Out and the Dr. Stoxxman blogs.
(3) Mr. MacAskill is permanently restrained from contacting, directly or
indirectly: (a) any known or purported business partners, investors, or clients
of Canada Easy Invest or the Western Canada Monthly Income Fund, and (b)
any of the individuals listed in term 3(b) of Blok J.’s order dated 14 October
2021.
(4) Mr. MacAskill is only permitted to communicate with the plaintiffs in this
action, Canada Easy Invest and Mr. van der Walle, via email through their
counsel Mr. Patro, and any such communications will be limited to no more
than two emails per day, and must be devoid of any racist, sexist, or
disparaging remarks, and must pertain only to the litigation in the current
action or any related proceedings.
(5) An entered copy of this Order must be served on the defendant,
Mr. MacAskill, via email at [content redacted] within seven days of the Order
being signed and entered with the court.
(2) The Contempt Application
[68] Contempt of court proceedings in civil cases are governed by Rule 22-8.. This
Rule must be interpreted and applied in view of the common law discussing the
court’s jurisdiction to punish for contempt. To quote the words of Mr. Justice
Chiasson in Larkin v. Glase, 2009 BCCA 321 at paras. 8–9 [Larkin]:
[8] Contempt of court is an issue between a party and the court. It is not
concerned with the merits of the dispute between parties to litigation (Frith v.
Frith, 2008 BCCA 2 at para. 36, 47 R.F.L. (6th) 286). Although the issue is
Canada Easy Investment Store Corporation v. MacAskill Page 24
pursued by the respondent, the court’s determination that Mr. Glase is in
contempt only indirectly affects her interests. As was stated in Ontario
(Attorney General) v. Paul Magder Furs Ltd. (1992), 10 O.R. (3d) 46 at 53, 94
D.L.R. (4th) 748 (C.A.), a finding of contempt of court “transcends the dispute
between the parties; it is one that strikes at the very heart of the
administration of justice ...”.
[9] A court’s ability to punish for contempt is at the core of its jurisdiction
(MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, 130 D.L.R. (4th)
385). It is a jurisdiction that must be exercised strictissimi juris, that is, the
court must ensure no one is found to have transgressed without a full
consideration of all the relevant information, including any explanations for
the conduct of persons accused of violating court orders (Frith; Claggett v..
Claggett (1945), 61 B.C.R. 238 (C.A.)).
[69] The case law also instructs that the power to punish for contempt is a “blunt
tool”, not to be invoked routinely: Hokhold v. Gerbrandt, 2016 BCCA 6 at para. 31.
The doctrine of strictissmi juris requires precision in pleadings, procedure, and
evidence: Bassett v. Magee, 2015 BCCA 422 [Bassett] at para. 35. The alleged
contempt must be clearly identified and then proven beyond a reasonable doubt,
based on evidence that meets trial standards of admissibility: Bassett at paras. 33–
34, applying Peel Financial Holdings Ltd. v. Western Delta Lands Partnership, 2003
BCCA 551 (Chambers) and Jackson v. Honey, 2009 BCCA 112 at para. 12.
[70] Mr. MacAskill did not attend court for the hearing of the contempt application.
The notice was properly served on him, he was aware of the hearing, and he chose
not to attend. As I explained above, Mr. MacAskill is not entitled to hold the plaintiffs
– or the Court – hostage by his refusal to participate. Still, applying the principle of
strictissimi juris discussed at para. 9 of Larkin, the court cannot make a definitive
finding of contempt before considering all of the information, including any possible
explanation that may be offered by the alleged contemnor. Rules 22-8(5) and (6)
recognize this by setting up a two-step procedure to be followed in cases where the
alleged contemnor does not appear in response to a duly served contempt
application. At the first stage, if the presiding judge is of the opinion that the person
may be in contempt, the judge may issue a warrant to have the person apprehended
and brought before the court. Once the person is apprehended and brought before
the court, the court can deal with the application in a summary manner, or
Canada Easy Investment Store Corporation v. MacAskill Page 25
alternatively can give further directions for the determination of the person’s guilt or
innocence.
[71] Applying those principles in the case at bar, the question at this stage of the
proceedings is whether I am satisfied that Mr. MacAskill “may be guilty of contempt”
as discussed in Rule 22-8(5). If the court is so satisfied, a warrant can be issued
compelling Mr. MacAskill to come before the court to answer to the allegation.
[72] Based on the facts outlined above, and taking into account the strict rules of
admissibility and the heightened burden of proof governing contempt applications, I
am satisfied that Mr. MacAskill may be guilty of contempt by violating the terms of
the 26 March 2021 order prohibiting him from publishing any accusatory or
disparaging allegations regarding the honesty, trustworthiness, reputation, or alleged
improper behaviour of the plaintiffs, their counsel, and their agents, in any forum
whatsoever.
[73] To be precise, the notice of application filed by the plaintiffs alleges 27
separate beaches of the 26 March 2021 order. I do not agree that all of these
breaches have been proven. Keeping in mind the strict rules of admissibility of
evidence, and the requirement of proof beyond a reasonable doubt, I am satisfied
that there is a prima facie case for finding that Mr. MacAskill intentionally violated the
26 March 2021 order on six separate occasions, specifically, in posts on the
Gangsterism Out blog dated (i) 20 May 2021, (ii)17 August 2021, (iii) 27 August
2021, (iv) 4 September 2021, (iv) 9 September 2021, and (vi) 22 September 2021.
There are other aspects of Mr. MacAskill’s conduct that I found to constitute
publication of defamatory statements for the purposes of civil liability in the summary
trial application. However, I am not prepared to make a finding that these additional
statements, consisting of additional blog posts and emails, are so demonstrably
contrary to the 26 March 2021 order so as to constitute prima facie intentional
violations of the order.
[74] On the basis of these findings, I would grant an order declaring that the
plaintiffs have made out a prima facie case that Mr. MacAskill deliberately violated
Canada Easy Investment Store Corporation v. MacAskill Page 26
the 26 March 2021 order on the six separate occasions mentioned in the preceding
paragraph.
[75] Counsel for the plaintiffs has explained that if the summary trial orders (which
include a permanent injunction), together with the preliminary finding of contempt are
enough to deter the defendant from any future defamatory or harassing conduct,
then it would not be necessary to proceed with the second stage of the contempt
process. Although I recognize that contempt is just as much a matter of concern for
the court as it is for the plaintiffs as private litigants, I accept that in the
circumstances of this case it may not be necessary to take the contempt of court
process any further, if the orders granted in this judgment are enough to bring
Mr. MacAskill into compliance with the law.
[76] Accordingly, the order should include terms expressly stating that any
application for a warrant under Rule 22-8(5) is adjourned generally, with the plaintiffs
having the right to bring the matter back before me on any date in the next 18
months, without notice to the defendant, for issuance of a warrant. (I reserve the
right, should the plaintiffs bring the matter back before me, to require that Mr.
MacAskill be given notice and an opportunity to appear before the court voluntarily,
before any warrant is ultimately issued). Finally, there should be a term in the order
providing that it is to be served on Mr. MacAskill via his email address, within seven
days of the order being signed and entered with the court.
(3) Costs
[77] The plaintiffs are entitled to costs for the entire action. They seek special
costs. The court is required to exercise restraint in awarding special costs. The
burden is on the party seeking special costs to identify exceptional circumstances
that would justify such an award: Westsea Construction Ltd. v. 0759553 B.C. Ltd.,
2013 BCSC 1352 [Westsea Construction] at para. 73(a)-(b).
[78] The plaintiffs cite two particularly significant features of the defendant’s
conduct in the course of the litigation itself. First, there is the complete lack of merit
in the defendant’s position, which included serious allegations of impropriety against
Canada Easy Investment Store Corporation v. MacAskill Page 27
the plaintiffs. Mr. MacAskill’s response to civil claim made unfounded allegations of
fraud and dishonesty against the plaintiffs. Mr. MacAskill did not make any effort to
prove the truth of these allegations in the course of the litigation. Advancing
baseless allegations can constitute a form of reprehensible conduct justifying an
award of special costs as discussed in Galloway v. Barski, 2017 BCSC 719 at
para. 42. Second, the defendant made express threats against the plaintiffs,
promising to run up their legal fees if he did not get a “pay off”. This is an example of
a litigant trying to weaponize the court process and use it against the opposing party.
This constitutes reprehensible conduct as discussed in Westsea Construction at
para. 73(d).
[79] On these facts, I agree with counsel for the plaintiffs that there are
exceptional circumstances warranting an award of special costs, up to and including
the date of this judgment. The plaintiffs should be entitled to recover as much of their
legal costs as they can from the defendant, given his conduct in the course of the
litigation.
“Riley J.”