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
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