In the quiet, scenic community of Lions Bay, a seemingly simple neighbourly dispute escalated into a complex legal battle involving claims of libel, obstruction of an easement, nuisance, and property damage. Meridian Law Group successfully represented the plaintiffs in this case, David v. Song, a decision recently released by the Supreme Court of British Columbia.
Property Dispute Arose From Driveway Shared by Neighbours
The parties in David v. Song were next-door neighbours, residing in two properties on a steep slope in Lions Bay. The properties were owned by the plaintiff and defendant wives, with neither husband having a registered interest in their spouse’s properties. (For ease of reference, we refer to these properties as the “plaintiffs’ property” and “defendants’ property” throughout this blog, as all four spouses were parties to the litigation.)
At the centre of this case was a shared driveway that provides access to both properties, with a portion subject to a registered easement agreement.
Initially, the two couples were on friendly terms and spent time together socially. The relationship soured in 2022 when the plaintiffs undertook extensive renovations on their property, which included the construction of a new carport with a deck above, renovations to the existing garage, and interior renovations. The construction process involved some excavation and the movement of materials up the shared driveway.
Defendants Impeded Access to Plaintiffs’ Property
The defendants accused the plaintiffs of damaging the shared driveway during the renovation process and demanded payment to fix it. Without the plaintiffs’ consent, the defendants dug a trench across the driveway, claiming it was necessary for drainage purposes. They also placed barricades on the driveway, impeding access to the plaintiffs’ property.
Despite the plaintiffs ‘ protests, the trench and the barricades remained in place for several weeks. Eventually, the plaintiffs obtained a mandatory interlocutory injunction requiring the defendants to remove the barricades and cease any work on the driveway.
Discord Between Neighbours Led to Defamatory Statements by Defendants
In addition to the physical obstruction of the driveway, the defendant husband made several defamatory statements against the plaintiffs on a WeChat forum serving Chinese-speaking residents in Lions Bay. These statements included false allegations of tax evasion, immigration fraud, and the misuse of public resources. The defendants also made cruel and defamatory statements about the plaintiff wife’s cancer, suggesting she was using it for personal gain.
In response, in May 2023, the plaintiffs amended their existing action against the defendants (relating to the obstruction of the driveway easement) to include a defamation claim. Shortly after, the defendants made several defamatory and disparaging comments verbally to the plaintiffs in the presence of the plaintiffs’ family members. The plaintiffs recorded these statements.
On the eve of the trial’s final day, the defendant husband posted an apology on WeChat, retracting his previous statements and expressing regret for the harm caused. The parties subsequently agreed to the publication of a “more fulsomely worded apology and withdrawal”.
Court Upholds Driveway Easement, Orders Defendants to Pay $12,500
In the 34-day trial, the central issues were related to obstruction of and damage to the shared driveway, nuisance, and defamation.
With respect to the defendants’ obstruction of the driveway, the Court found that the Easement Agreement governing the driveway clearly stated that it could not be obstructed in any way without the express consent of both parties. As the defendants obstructed the driveway without the plaintiffs’ consent, the Court ruled in favour of the plaintiffs and ordered the defendants to pay $12,500 in damages.
The defendants attempted to argue that any obstruction was actually caused by the plaintiffs and their use of construction vehicles and equipment during their renovations. The Court rejected this argument, finding the construction activities were consistent with the use of a residential driveway during renovations. It noted there was no evidence construction vehicles or construction materials were stored on the driveway.
Defendants’ Driveway Damage and Nuisance Claims Dismissed
The defendants claimed the plaintiffs were responsible for fixing the damage allegedly caused to the driveway by the construction. After reviewing the defendants’ evidence, the Court found insufficient proof that “the construction and renovation activities caused any change beyond that of normal wear and tear”. However, at trial, the parties agreed the driveway needed to be repaved due to this regular wear and tear. The plaintiffs agreed to share the cost using a formula set out in their pleadings, with the Court confirming the plaintiffs’ portion would not exceed $12,500 without a Court order or agreement between the parties.
Further, the defendants sought compensation for nuisance relating to the noise and dust created by the plaintiffs’ renovations. The Court also denied these claims, finding them exaggerated and without sufficient evidence to prove an unreasonable interference with the defendants’ lives.
Court Denounces WeChat Posts as Defamatory and Motivated by Malice
The Court reviewed the 2022 WeChat posts by one of the defendants and found they were libellous of the plaintiffs. It held his statements – which alleged the plaintiff husband was an illegal immigrant and the plaintiff wife was a tax evader, fraudster, public resource abuser, and used her cancer for personal gain – were patently defamatory. The defendants could not rely on a defence of “fair comment” for two reasons:
- The statements were untrue; and
- The defendant was “motivated by express malice” (i.e. to force the plaintiffs to pay 100% of the cost to repair the driveway).
The Court noted the defamatory statements could reasonably be expected to impact the plaintiffs’ personal and professional reputations. Further, it stated that “[d]efamation may be so harmful because it can corrode one’s innateness and sense of self”.
Defendants Ordered to Pay Over $70,000 in General (Including Aggravated) Damages
In determining an appropriate amount of general damages for defamation, the Court highlighted the following factors:
- The defendant’s false allegations were very serious;
- The postings were focused on the Chinese-speaking residents of the parties’ neighbourhood;
- The postings would likely hurt the plaintiffs’ business reputations;
- One or more of the defamatory “stings” were repeated to the Village of Lions Bay and the RCMP;
- The defendant did not apologize or retract his statements until the last day of trial; and
- The defendant would have known the plaintiff wife was particularly mentally vulnerable, given her serious cancer.
Given the above factors, the Court awarded general (including aggravated damages) to the plaintiff wife in the amount of $57,000 and $14,250 to the plaintiff husband. The amounts were reduced by 5% to take into account the defendant’s eventual apology.
Court Awarded $25,000 in Punitive Damages for Defendant’s Malicious, Oppressive Misconduct
In addition to general damages, the plaintiffs sought an award of punitive damages against the defendant husband for defaming the plaintiff wife.
In granting an award of $25,000 in punitive damages against the defendant, the Court made the following statement condemning the defendant’s actions:
[The defendant’s] misconduct was clearly ‘so malicious, oppressive and high-handed that it offends the court’s sense of decency’. A punishment in the nature of a fine is wholly appropriate. I will award the $25,000 sought. I will not reduce the award having regard to the apology because it would reduce the societal goal of punishment and deterrence.
Especially having regard to the unknown scope of publication on the Internet, it is important that the Court make an award that ensures members of the public, while enjoying free expression, are deterred from malicious, oppressive, and high-handed conduct.
The Court declined to grant an injunction against the defendants restraining them from repeating their past conduct, stating that a significant monetary award would be an appropriate remedy if a reoccurrence occurred.
Meridian Law Group: Providing Top-Tier Litigation Services in Vancouver
Meridian Law Group provides premier representation in a variety of disputes, including those related to residential and commercial real estate matters, defamation and libel, business disagreements, construction issues, and more. The firm’s innovative litigation lawyers create tailored legal solutions and vigorously pursue the best results for each client.
From its location in the prominent Nelson Square Building in downtown Vancouver, Meridian Law Group proudly advocates for clients across British Columbia, Canada, and internationally. To discuss your litigation matter with the firm, please call (604) 687-2277 or contact us online.
