Glen Clark v. Robert Ward

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December 19, 2001

The BC Court of Appeal overturned a lower court decision making it clear that language doesn't have to be "bland" to be protected by the law, and describing, in bluntly disapproving terms, the conduct of the appeal by Doug Christie on Mr. Ward's behalf:

[55] I turn to the issue raised by the appellant as to whether the trial judge erred in finding that the defendant had exceeded the limits of the qualified privilege defence. The relevant passage in the reasons is this:

[54] However, I am of the view, and so find, that the defendant has exceeded the limits of the qualified privilege defence by virtue of the defamatory statement not being germane and reasonably appropriate to the occasion...

[56] With respect, those passages are based on an erroneous view of what is meant by the words 'germane and reasonably appropriate to the occasion' and a failure to give effect to the basic principles relating to qualified privilege. ...The law does not require either blandness or accuracy as a condition of successfully invoking qualified privilege. The law was stated thus by Lord Atkinson in Adam v. Ward, supra, at p. 173:

These authorities, in my view, clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true

[67] Mr. Christie based these arguments on the premise that the plaintiff was right and fair and reasonable in all that he did and said whereas the defendant was wrong, unfair, unreasonable and wicked in all that he said and did. That leads to the proposition, advanced through an unquenchable flow of indignant rhetoric, that the trial judge's findings in favour of the defendant, which substantially outnumber and outweigh those in favour of the plaintiff, must be wrong in law and perverse on the facts.

[72] The second major premise of Mr. Christie's argument was that the trial judge must have been wrong in making findings adverse to the plaintiff because he, after all, had been right about the suitability of the Incat designed catamarans for the Horseshoe Bay run and Mr. Clark had been wrong. As we are not here dealing with material issues, I will note without relying on any extension of the law of judicial notice that it now seems clear that Mr. Clark and his advisors have been shown in some respects to have been even more seriously wrong than Mr. Ward suggested in 1996. The ferries, when the first two finally entered service, had so little success that all three were withdrawn from regular service and put up for sale. The cost overruns were huge.

See: Clark v Ward

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