B.C. Supreme Court judge rejects application of former candidate for Surrey Council, Brian Young, to dismiss action

AN application made by Brian Young to reject Bob Cheema’s defamation claim has been dismissed by the Supreme Court of British Columbia, clearing the path for the case to proceed to trial. 

Justice Heather MacNaughton ruled that Young’s statements meet the threshold to be considered defamatory and that Cheema’s claim has substantial merit. Recognizing “the harm he [Bob Cheema] has suffered or is likely to suffer as a result of Mr. Young’s expression,” the Court found that “the public interest in permitting his defamation action to continue outweighs the public interest in protecting Mr. Young’s expression.” 

Significantly, the Court noted that “Mr. Young has not provided a factual basis to justify his attacks on Mr. Cheema” and failed to independently verify the information he published. 

The court acknowledged that Cheema is a businessman whose reputation depends on honesty and integrity and that he filed his lawsuit to protect his reputation rather than to silence an individual’s freedom of expression. 

“I have worked for decades to establish my business integrity and community involvement, and I am pleased that the Supreme Court of British Columbia recognizes my right to protect that legacy,” said Cheema on Friday. “Following Brian Young’s refusal to apologize for and retract his defamatory statements, all I have ever pursued is my day in court, and this decision now allows me that opportunity.” 

The court was not persuaded by Young’s contention that he was acting in the public interest, characterizing him as “an outsider who did not possess the type of knowledge or information that would give rise to an interest or duty on his part” to publish said statements. Further, the court found that his personal attack on Cheema was not relevant to the issues of public discourse he purportedly tried to address. 

Freedom of speech should never serve as a platform for irresponsible attacks on an individual’s reputation, said Cheema. “I hope that this decision will offer a lesson that political involvement is not a licence to engage in unfounded character assassination.” 

(See more details on judgement below)

THE VOICE has for a long time been exposing the rabid racism of some privileged white people in politics, the RCMP and the mainstream media in particular who have resorted to obscene and wild allegations against anyone who has dared to support a Surrey municipal police force. They have resorted to shameless lies, half-truths and distortions. They have targeted South Asians in particular.

It is, indeed, a scandal that some mainstream media journalists have been so one-sided, openly trying to sabotage the will of Surrey residents who first elected Doug McCallum as mayor and seven councillors who supported a municipal police force, and then in the provincial election, elected all incumbent NDP MLAs and voted out an incumbent BC Liberal MLA in Surrey on the same issue.

The ridiculous extent to which McCallum’s opponents have indulged in making wild allegations are exposed in the ruling. The judge, for example, notes: “I … accept that the transition to a local police service and the implementation of that transition were subjects of public interest to citizens of Surrey. In that regard, I accept that some of his comments about Mayor [Doug] McCallum and the council fall within public comment on matters of public interest.

“However, on their face, the tweets about Mr. Cheema do not relate to those issues. Gratuitously adding comments about Mr. Cheema, suggesting improper influence and bullying of Mayor McCallum and the council, abuse of power, and financial malfeasance by an unelected person, does not cloak the comments with the protection of public discourse on those matters. Mr. Young’s expression does not relate to the public interest issues that he identifies in his notice of application.”

The judge also notes: “In his responsive pleadings, Mr. Young alleges that, before the October 2018 election, in the Earlier Statements, Mr. Cheema told him that he had selected the chief for the new Surrey police force, that the candidate was currently serving as a deputy chief of the VPD, and was South Asian. Mr. Cheema denies that the conversation occurred. The conflict in the evidence is impossible to reconcile.

“In arguing the defence of justification, Mr. Young essentially says that Mr. Cheema: (a) improperly influenced Surrey’s Mayor and bullied members of council (Statements); (b) “hand picked” a deputy chief from the VPD to become the Chief Constable of the Surrey Police Department (Statements); (c) advised (if not instructed) Surrey’s council to withhold the release of the Report (Statements); (d) is the ringleader of a group of councillors who are dishonest and unethical (Statements); (e) benefited financially from Doug McCallum’s election as Mayor (Statements).

“Mr. Cheema has addressed each of these allegations in his affidavit. Mr. Young has not provided a factual basis to justify his attacks on Mr. Cheema.

“This is illustrated by considering Statements 2 and 4. The gist of those statements is that Mr. Cheema and Mayor McCallum surreptitiously selected a deputy chief from the VPD to be the chief constable of Surrey’s proposed police department. Those statements cannot be true as the Police Act mandates the process for the selection of the chief constable of a municipal police service and, as is apparent on the record in this application, that process was followed by Surrey.

“Further, the chief constable eventually selected by the Board is not a former member of the VPD, and Mr. Young has not provided evidence that Chief [Norm] Lipinski was known to Mr. Cheema.

“In another illustration, in Statement 5, Mr. Young tweeted to his followers that “Bob is making huge $$$ now as you already know.” The thrust of this allegation, and its sting, is that since the election of Mayor McCallum, Mr. Cheema has benefitted financially from their relationship.

“Mr. Young does not provide a justification for that statement. In his response to civil claim, he pleads that the statement was true at the time the tweet was sent. However, Mr. Young’s affidavit does not provide any evidence of the truth of the statement. He says that when he made the comment, he was mindful of Mayor McCallum’s public comments about Mr. Cheema in his acceptance speech on the night of the election. He also relies on what he says Mr. Cheema told him as one of the Earlier Statements about only being in the backroom in respect of his relationship with Mr. McCallum. Neither of these are likely to form an evidentiary basis for the justification of this statement.

“The record on this application does not support Mr. Young’s allegations about Mr. Cheema’s interference with Surrey’s local government or that he profited from his relationship with Mayor McCallum. On that basis, there are grounds to believe that Mr. Young’s defence of justification has no real prospect of success. In other words, I conclude that there is a basis in the record and the law, taking into account the stage of the proceeding, to support a finding that the defence does not tend to weigh more in favour of Mr. Young, acknowledging Mr. Cheema’s burden to establish this conclusion.”

Here are some key excerpts from the ruling:

(https://www.bccourts.ca/jdb-txt/sc/21/04/2021BCSC0461.htm)

4] As it applies to this case, the Protection of Public Participation Act [PPPA] seeks to weigh Mr. Cheema’s right to sue to protect his reputation against Mr. Young’s constitutionally protected right to free speech and the public interest in rigorous debate on issues of public interest.

[12] Mr. Young bears the initial onus of demonstrating…that the expression relates to a matter of public interest.

[71] At Mr. Cheema’s request, his counsel sent a letter to Mr. Young indicating that Mr. Young had “embarked on a purposeful campaign on Twitter to attack his reputation and violate his privacy without regard to the legitimacy and truth of what [he had] published.” The letter outlined the Statements. He requested an urgent full, and unqualified, apology and a retraction. Mr. Young did not respond.

[72] Mr. Cheema filed a notice of civil claim on June 3, 2019, claiming injury to his character, credit, and reputation.

[90] Mr. Young’s application…make[s] reference to a matter of public interest in a veiled effort to target Mr. Cheema, a private individual. In the result, Mr. Young has not established that his comments about Mr. Cheema are with respect to a matter of public interest…

[104] Mr. Cheema has addressed each of these allegations in his affidavit. Mr. Young has not provided a factual basis to justify his attacks on Mr. Cheema.

[109] The record on this application does not support Mr. Young’s allegations about Mr. Cheema’s interference with Surrey’s local government or that he profited from his relationship with Mayor McCallum.

[118] According to his affidavit, he [Mr. Young] did not research and investigate the status of Surrey’s transition to a local police service except with the possible exception of his review of the Global Story which he appears to have misconstrued.

123] …Mr. Young exceeded the limits of any social or moral duty or interest that may have existed by using the occasion of council’s deliberations about the police transition process to make a personal attack on Mr. Cheema.

[139] It is difficult, on the factual record, to discern why Mr. Young decided to include Mr. Cheema in his Twitter comments.

[155] I am also satisfied that Mr. Cheema has provided a causal link between Mr. Young’s statements and the harm he has suffered. He has met the requirement of showing the existence of harm connected to Mr. Young’s expression.

[156] It is also relevant that Mr. Cheema first sought an apology and a retraction which suggests that he is not trying to stifle expression, or his critics.

[161] In the context of the record before me, and the stage of the proceedings, I am satisfied that Mr. Cheema has established, on a balance of probabilities, that the harm he has suffered or is likely to suffer as a result of Mr. Young’s expression is sufficiently serious that the public interest in permitting his defamation action to continue outweighs the public interest in protecting Mr. Young’s expression.