December 18, 2019
Hobbs v Warner 2019 BCSC 2196
The underlying action involves a claim brought by Kevin Hobbs, Lisa Cheng and their company, Vanbex Group Inc., against Kipling Warner, a software engineer who worked at Vanbex for about two months in 2016.
The personal plaintiffs are involved in other litigation. Mr. Hobbs and Ms. Cheng are defendants in a proceeding brought under the Civil Forfeiture Act, S.B.C. 2005 c. 29 [CFA] where some of their assets have recently been made the subject of an interim preservation order (the “CF Action”). They are vigorously defending the CF Action and say that it has caused reputational and financial harm to them and their company.
The corporate plaintiff, Vanbex, is involved in other litigation as well, having sued Mr. Warner for defamation, among other things, in 2017. It is through that proceeding that Mr. Hobbs recently learned that Mr. Warner sent an email “tip” to a member of the Vancouver Police Department on April 12, 2017 where he relayed his suspicions that Vanbex and Mr. Hobbs may be involved in criminality and then later communicated those concerns to the British Columbia Securities Commission and the Royal Canadian Mounted Police.
In this action, the plaintiffs claim that Mr. Warner’s statements to authorities are false and were the cause, or at least a significant contributing cause, of the investigation leading to the CF Action, which has caused them harm. They commenced this defamation action on May 1, 2019 and seek substantial damages against him.
…Mr. Warner first bears an evidentiary burden to advance any proposed defences. He has not filed a Response to Civil Claim, so it is through his application materials that he has put two defences “in play” – the statutory prohibition against civil liability for police informants created by s. 462.47 of the Criminal Code of Canada, R.S.C., 1985, c. C-46, and the defence of qualified privilege.
For the purposes of this application, I will consider only the latter of these. Section 462.47 of the Criminal Code has not been considered in the civil context as a defence to defamation, so Mr. Warner’s argument is a novel one. Given the absence of any developed or meaningful submissions on its application to this case, it would be imprudent to consider it here. As counsel’s focus was firmly on the defence of qualified privilege, so too will be the court’s.
I am satisfied on the evidence adduced that the plaintiffs have not simply made bald assertions that Mr. Warner was actuated by malice when he sent the Police Tip and later provided information to BCSC and RCMP investigators. Looking at the application record through a reasonableness lens, I am satisfied a trier of fact could conclude that Mr. Warner was actuated by malice when he sent the Police Tip and later communicated with the BCSC and RCMP and, therefore, that his defence of qualified privilege would not succeed. Since this assessment is among those reasonably available on the record, the plaintiffs have met their onus under s. 4(2)(a)(ii).
The plaintiffs are required to satisfy the court that the harm they suffered, or may suffer, by the defendant’s expressions is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting the defendant’s expressions.
Overall, while I conclude that the quality of Mr. Warner’s expressions slightly diminishes the significantly high public interest in protecting reports by citizens to law enforcement, I find the public interest in protecting them still quite high. High enough that the public interest in their protection significantly outweighs any harm that could be found to have been, or be, suffered by the plaintiffs as a result of those expressions. The public interest is, on balance, not served by allowing this action to proceed to an adjudication on the full merits.