November 30, 2018
Pan v Gao 2018 BCSC 2137
The plaintiff, Miaofei Pan, alleged that the defendant, Bing Chen Gao, published a series of articles between December 2016 and February 2017, which defamed him. The plaintiff sued for defamation seeking general, aggravated and punitive damages, and a permanent injunction. The defendant denied that the statements were defamatory, but if found to be defamatory, submitted that he is protected from liability as the impugned statements were either true, responsible communication or the result of fair comment.
On the issue of the plaintiff’s credibility, the Court had this to say:
Starting at para 448:
…I am disturbed by the plaintiff’s lack of candour with the Court, manifested both in his testimony and his lack of document production in this litigation. I emphasize I did not draw an adverse inference about his claiming the CTB (Child Tax Benefit) lightly. His evasiveness with this Court on that issue is deserving of rebuke, and I decline to award him substantial damages on that basis.
The issue of the CTB was not the only instance where I did not accept the plaintiff’s evidence or position. I am satisfied on a balance of probabilities that the plaintiff fabricated a story that someone tried to blackmail the plaintiff into paying cash to stop the defendant’s continued publications about him. In relation to the documents relied upon by the defendant, the plaintiff denied their authenticity, which was a reasonable stance in the litigation. However, he went further at first by alleging at trial that documents were “faked”. However, he then backtracked on his accusation and instead tried to provide a different reason why his name was on two of the documents (the Share Registry and the List of Dishonoured).
I also note the lack of documentation produced by the plaintiff. It is true that he did not have any burden to prove the defamatory statements were false. However, he had an obligation to disclose relevant and material documents related to the issues in the litigation. It was clear from the defendant’s response to civil claim that he asserted the allegations in the Articles were true. Given the content of the Articles (and the pleading itself) his claim of truth was not merely pure speculation, but based, at least in part on the documents he reproduced within the Articles, which the defendant asserted were official records of the Chinese government. Requiring the plaintiff to disclose and produce documents relevant to the truth of the allegations is not the reversal of a legal burden. If such documents existed I would have expected him to adduce them at trial.
Had that suspicion been my only concern about the plaintiff’s posture in this litigation, my conclusions may have been different. However that is not the case. Anchoring all of these concerns is my serious concerns about the plaintiff’s credibility. From my purview as the trial judge, and exclusive fact-finder, the plaintiff demonstrated on a number of occasions throughout his testimony an attitude that he should not have to answer to the defendant, and indirectly to this Court, about his business affairs. That combined with his decision to rely purely on deemed falsity of the defamatory statements rather than backing up his testimony with documents, strongly confirmed my disinclination to find the plaintiff credible or reliable.
For all those reasons, I award nominal damages to the plaintiff in the amount of $1.
The Court declined to grant the injunction.
And, on the issue of the defence of responsible communications, the Court had this to say starting at para 390:
…the plaintiff submits that the defendant’s statements fall outside the range of what could be considered to be in the public interest as they are “sensationalized statements not based in reality” and thus not “deserving of the protection of public interest”. I do not understand the logic of this submission. A defendant will not be liable for defamatory statements about a matter of public interest as long as the defendant was responsible in publishing the statements by making a diligent effort to verify the facts. That protection is available if the defendant meets the test, no matter how incendiary the defamatory statements are.
I find that the 10 Articles addressed matters of public interest. There is no dispute in the evidence that at the time the Articles were published, the plaintiff was President of the Wenzhou Society and the Zhejiang Association as well as Honourary Chairman of the Alliance. He hosted the Prime Minister at his home as reported by the Globe and Mail. There can be no doubt that the plaintiff is a figure of local prominence, especially in the Chinese-Canadian community.
I am not convinced that a person’s reputation would be devastated by the assertions in the Articles. The two most serious accusations are that the plaintiff defrauded home owners in China, implicating his nephew in the fraud and that he evaded Canadian taxes and claimed the CTB to which he was not entitled. I agree the seriousness of those two accusations are moderately high. However, I do not agree the other allegations are of high or moderately high seriousness. Those relate to the plaintiff’s interactions (alleged to be wrongful) with Chinese government agencies. As noted elsewhere in this judgment, I am not satisfied reasonable Canadians would regard those allegations as damaging a person’s reputation given the reputation of the Chinese government, and I had no contrary evidence. I also find the allegations regarding the plaintiff’s “buying” of positions in Community Associations and using them for personal benefit are only moderately serious, as there is nothing inherently criminal in that type of activity.
I agree with the plaintiff that public importance of the defamatory statements fall short of the highest mark; they do not pertain to grave matters of national security, for example. However, I also find they rise above what the Court in Grant called “prosaic business of everyday politics”. I find they are of moderate or moderately high public importance. I find the accusations about the plaintiff’s involvement with the Project that affected hundreds of people would raise the importance above topics of moderate interest. I also find the accusation of not being honest with the CRA to be moderately serious. The allegations of improper behavior of community leaders is not of the same public importance as in the case of a government-elected officials, but are still significant to a society like Canada that places so much trust in civic organizations.
I agree with the plaintiff that the defendant’s subjective belief in the truth of the information relied upon in publishing the defamatory statements is insufficient to meet this factor. However, I cannot ignore the difficulty a lone journalist, who believes his previous WeChat accounts have been cancelled by the Chinese government, would have in authenticating official Chinese government documents. Nor can I ignore the inherent difficulties this Court might face in deciding what reliance could be placed on oaths or certifications provided by Chinese government authorities. I repeat that I find the defendant’s belief in the accuracy and authenticity of the documents to be genuine, and reasonable. I add that viewing the documents, they at least have the appearance of “official” documents. Thus, even though the documents were not admitted for their truth because of the lack of authenticity, I find the preceding reasons establish that there was a moderate degree of reliability of the defendant’s sources, which is somewhat consistent with the defendant being diligent.
…it is relevant that the plaintiff relied completely on the presumption of falsity for his claims. It is inconceivable that he did not understand that the defendant relied primarily on what he believed to be “official” Chinese government documents to support many of his allegations, including about tax evasions and unpaid debts. The plaintiff took the position that the presumption relieved him of the obligation to produce documents that would tend to prove or disprove a material fact. Thus, he did not produce his Canadian tax returns or any document whatsoever backing up his claim that he sold 100% of his interest in the Linyang Company in 2006. Nor did he produce any kind of document to verify the information he claimed he received from the Chinese officials that there is no such thing as a “List of Dishonoured”. Because I found the plaintiff’s credibility to be impaired, the lack of these documents takes on greater significance. In my view, that is relevant to the defendant’s ability to rely on this defence.
I find that the defendant satisfied the first element of the defence of responsible communication: the defamatory statements were a matter of public interest. I also conclude that the public importance of the topics weighed more in favour of concluding the communication was responsible. I found that the defendant was justified in including the defamatory statements in the Articles, and that delaying publication would not have assisted in verifying the truth. The Articles addressed topics that were moderately serious requiring a moderate degree of diligence. I concluded that a consideration of the status and reliability of the sources, taking into account all circumstances and complexities of this case, was consistent with the defendant being diligent.
…I am concerned by the defendant’s failure to contact the plaintiff to receive and then report his reaction to the Articles, and the defendant’s insistence that such a step was unnecessary. The Supreme Court of Canada did not state that any one factor was determinative, but it acknowledged not all factors are weighed equally. I note that the Supreme Court of Canada did not state that this factor was a necessary aspect to successfully invoke this defence, and it could have done so.
The essence of the defence is whether the author has been diligent. The defendant did not cite any difficulty or barrier to contacting the plaintiff directly before publishing Article One. Rather, he believed he was under no obligation to do so. I do not find that is consistent with the defence of responsible communication. While this factor is not a necessary condition for the defence, I conclude the absence of a reasoned explanation for even attempting to contact the plaintiff, deprives the defendant of this defence.