Pan v. Gao

2020 BCCA 58 Pan v. Gao

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Pan v. Gao, 2020 BCCA 58 Date: 20200218 Docket: CA45814 Between: Miaofei Pan Appellant (Plaintiff) And: Bing Chen Gao Respondent (Defendant) Before: The Honourable Madam Justice Newbury The Honourable Madam Justice Dickson The Honourable Mr. Justice Butler On appeal from: An order of the Supreme Court of British Columbia, dated November 30, 2018 (Pan v. Gao, 2018 BCSC 2137, Vancouver Registry S1611795). Counsel for the Appellant: N.J. Muirhead N. Yan Counsel for the Respondent: S.R. Coval, Q.C. L.M. Hellrung Place and Date of Hearing: Vancouver, British Columbia January 7, 2020 Place and Date of Judgment: Vancouver, British Columbia February 18, 2020 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Madam Justice Dickson The Honourable Mr. Justice Butler Summary: Defendant published ten related articles on the Internet via a social platform used by Chinese-speaking readers. The articles targeted the plaintiff, an immigrant to Canada from China, and accused him of various disreputable things, including misrepresenting his income in order to obtain the Canada child tax benefit (CTB); leaving China with a large tax bill unpaid; having been in partnership in China with a suspected criminal; and being a "seasoned liar" and "hideous character." Trial judge found most of the articles not to be

defamatory and awarded $1 in damages. HELD: Appeal allowed in part. Trial judge had erred in drawing adverse inference in connection with CTB and in taking judicial notice of how ordinary Canadians view the tax system and the media of China. Evidence was required on these points. She had also erred in ruling that defence of fair comment applied to the "seasoned liar" statement. This was a statement of fact and was clearly defamatory. Other opinions were such that an honest person could hold them, so that the defence of fair comment applied to them. Question of damages for all statements found to be defamatory remitted to Supreme Court of British Columbia for determination. Reasons for Judgment of the Honourable Madam Justice Newbury: Introduction [1] In the one-month period beginning December 12, 2016, the defendant Mr. Gao published, via a social media platform called "WeChat", a series of ten articles concerning the plaintiff Mr. Pan. Both Mr. Gao and Mr. Pan are Canadians of Chinese origin and the articles were written in Mandarin and apparently intended for members of the Chinese community in Canada. [2] Mr. Gao, who wrote under the pseudonym "Hebian Huang", appears to have become interested in Mr. Pan after reading a report dated December 2, 2016 in the Globe and Mail of a political 'fundraiser' held by Mr. Pan at his home in West Vancouver. It was attended by over 80

guests, including the Prime Minister. The Globe reported that Mr. Pan was associated with the Canadian Alliance of Chinese Associations, which was an "unabashed backer" of China's claims in the South China Sea and East China Seas. [3] As well, Mr. Gao had seen Mr. Pan at a rally against "Chinese Exclusion" held in Richmond in December 2016. Mr. Gao wondered why wealthy Chinese Canadians such as Mr. Pan (who attended the rally as the Association's honorary chairman) had chosen to protest that they were being discriminated against in Canada. In his First Article relating to Mr. Pan published on December 12, 2016 he asserted it was "public knowledge" that "living in luxury mansions without paying taxes while collecting benefits has long been a chronic illness in some wealthy families in the Chinese community, which is abhorred by all Chinese who are nonetheless burdened by the notoriety." [4] The statements complained of by Mr. Pan in this proceeding, however, relate not so much to general issues of this kind as to his personal conduct and integrity. The first four articles were posted (i.e., published) on WeChat between December 12 and 17, 2016, in response to which Mr. Pan commenced this action on December 21 in the Supreme Court of British Columbia. The remaining six articles were published between December 20, 2016 and January 13, 2017 and the plaintiff's final Further Amended

Notice of Civil Claim ("NOCC") was expanded to include those as well. Mr. Pan sought damages, including aggravated and punitive damages, for defamation and an injunction restraining further publication of the Articles in any medium. [5] I reproduce below the portions of each of the ten Articles, as translated, that were most salient to Mr. Pan's claims of defamation. They are taken from the NOCC, from which the trial judge worked. (On the importance and function of pleadings in a defamation action, see this court's comments at paras. 63-5 in Weaver v. Corcoran 2017 BCCA 160, per Dickson J.A.) I have underlined words that are particularly relevant to this appeal. First Article (December 12, 2016) A famous wealthy overseas Chinese community leader of Vancouver allegedly revealed that he lived in a luxury mansion and concealed his income to receive full Canada child benefit. The Article alleged that Mr. Pan had assumed the pseudonym Yi An Wang (the name of a person who apparently gave an interview to the China Weekly) and that Mr. Pan had fled from China to Canada using that name. The Article continued: Mr. Pan concealed his income at least back then - how unbearably embarrassing that a wealthy man should receive full Canada child tax benefit that only a mere $30,000 in income could qualify for? And isn't it amazingly ironic that this Mr. Pan appeared in today's "protest" parade?

Not only Westerners but all Chinese would discriminate against such a set of circumstances. On the other hand, what makes us feel helpless is that they 'represent' the Chinese. Surely Mr. Pan doesn't care about the $2,000 in child tax benefits, but we care to know how much income he concealed such that he could collect so much child benefit. Second Article (December 13, 2016) Threatening to sue me? Sharing again Comrade Pan Miaofei Pan's Notice of Tax Arrears not for the faint of heart - unveiling the secrets of a "questionable" overseas Chinese Leader in Vancouver: Vol. II. This Article included the following statements: Many were stunned after I disclosed yesterday that Mr. Miaofei Pan, a current honorary chair of the Canadian Alliance of Chinese Associations, had allegedly revealed his concealment of personal income and receipt of child tax benefits that only low-incomes would qualify for. A famous, patriotic overseas Chinese community leader now suddenly turned into a senior "questionable" overseas Chinese leader. Dear readers, trust you've seen clearly that the personal income tax owed by Mr. Pan in mainland China for last year is 32.312 million RMB ($6,000,000 CAD) on top of sales tax, city maintenance and development tax, education subsidy tax and so forth, totally [sic] RMB 440,000 RMB. Also take a look at the tax collection notice for Mr. Pan's wife Ms. Wenhuan

Yang. Now the uninformed onlookers, trust you've seen this clearly? I had to rub my eyes hard to see the digit group separators clearly. This notice shows that Mrs. Pan owes RMB 9.2 million in personal income tax. The two notices total 32,312,000 + 440,000 + 9,200,000 = 41,952,000 yuan or $8.3 million CAD. Folks, these only represent taxes such as income tax and sales tax the Pans owe. People would have to wonder, how much on earth did Miaofei Pan earn that year. According to informed sources, these amounts were declared by Miaofei Pan himself, and involved a half-baked building construction project called Huachen Yipin in Cangnan County. People say the project defrauded hundreds of local home buyers. The entire project was constructed [by] Zhejiang Lingyang Real Estate Company in which Miaofei Pan held a controlling interest while the frontline person-in-charge was Zufan Zheng, a partner of Pan. From what we've learned so far, Zheng has been detained by police. Third Article (December 14, 2016) $450K? $550K? Guess how much comrade Miaofei Pan spent on three Chinese 'official leadership positions' combined unveiling the secrets of a 'Questionable' Overseas Chinese Leader, Vol. III. This Article included statements to the effect that Mr. Pan had essentially "bought" his presidency of the Canadian Alliance of Chinese Associations, the Wenzhou Association headquarters, and

presidency of the Zhejiang Association and that: He wasn't eager to serve his fellow townsmen, but to spend money on these official titles real fast so he could wear them back to Wenzhou, Jinan and Shanghai, regions where he had business "troubles", to bluff local business associates, competitors and those, and those inept officials in the Chinese government, because any clear-headed official would see through it right away. Basically, this trick pulled by Miaofei Pan delivered some results. Fourth Article (December 17, 2016) Over 100 Millions in debt; his Subordinates arrested; himself banned from leaving the country: a patriotic overseas-Chinese leader turned 'deadbeat'; who would have trouble travelling to/from mainland China -- unveiling the secrets of a 'questionable' overseas Chinese leader in Vancouver, vol. IV. In addition to a passing reference to Mr. Pan's "collecting low-income child benefit," this included the following statements about Mr. Pan's connection to the Chinese real estate development project referred to in the Second Article: A half-baked complex ensnared hundreds of households. Local media outlets covered related stories in great detail, many pointing fingers at the boss behind the scene, Miaofei Pan. And so we hear that Zu Fan Zhang, the underling of Miaofei Pan, was undoubtedly arrested. At that time Miaofei Pan worked all kinds of connections, put on

the "patriotic overseas Chinese leader" hat as a bulletproof vest, and exploited the relationships he had quickly developed with the political circles in mainland China while serving as an overseas Chinese leader to narrowly get away with it after paying, it is believed, tens of millions of yuan in taxes. The double-faced nature of this "patriotic overseas Chinese leader" has thus been fully exposed appears to be fairly typical. Fifth Article (December 20, 2016) [Breaking News] Results of the latest poll: only 2% support having the questionable leader represent overseas Chinese, highlighting the Mainland's overseas Chinese affairs hardly connects with the grassroots overseas! This Article included the following: In fact, most of the "questionable rich" aren't so terrible. What's truly terrible is for a "questionable rich person" to serve as an overseas Chinese leader and use the title for personal gain. Mr. Miaofei Pan is definitely not an isolated case. Over the years overseas Chinese have witnessed more and more "double-faced" personalities vying and jostling for "overseas Chinese leadership" positions in such large and integrated organizations as the Alliance, the better known the organization and the wider its coverage, the more contenders in the battle, leading to frequent "buying of official leadership posts". Many scoop various political titles and honours in China

through difficult means including banquets, presents and donations, and use them for personal profit and business purposes, severely damaging the reputation of overseas Chinese leaders. Sixth Article (December 22, 2016) Miaofei Pan, a problematic Chinese community leader, launched a legal action yesterday against me, old Huang, at BC Supreme Court, eager to be a plaintiff after getting used to being defendant in mainland China. This Article included the following: Maiofei Pan has always had an illusion, no matter how much he has been bombarded by the Canadian main stream media, no single Chinese media outlet dares to do anything to him. This is not because these Chinese media outlets want to get his business of advertising, but rather they are afraid of getting sucked into a lengthy litigation process that could tire them out in the end. Unfortunately, man proposes, God disposes. Who would have known - a new media outlet "Broadcasted by He Bian Huang - Vancouver Public Account", appeared and provided him with a few medicinal eye drops. He immediately became agitated, brandishing his "weapon on law"; furthermore, he wants to create a certain level of uncertainty for the person who speaks up in defence of justice, and tries to force him into a make-belief trap of an "astronomical amount of compensation". Seventh Article (December 29, 2016) Miaofei Pan, Honourary Chairman of

Canadian Alliance of Chinese Associations, will pay a hefty price for playing the game of launching a reckless lawsuit. Two legal consulting teams and a litigation support group were spontaneously organized by the Vancouver Chinese community to support He Bian Huang. This Article included the following: A dignified former executive chairman, a current honorary chairman of the Canadian Alliance of Chinese Associations after spending a few hundred thousand dollars on a title of "Chinese community leader" ran unworthily running [sic] between China and Canada for many years. With him being a tall-tale teller and overly ostentatious, all kinds of his past misdeeds as a "seasoned liar" were revealed after being heavily reported by Chinese and overseas media for having spent money and taken the Prime Minister of Canada to his house for some fish balls. Miaofei Pan, however, only sent lawyer's letters to the westerners' media outlets, but to a Chinese media person such as me, old Huang, who knows every detail of his scandalous conduct he brought on a "legal action". Miaofei Pan surely treats Chinese and Westerners differently! This is an outright abuse of legal proceedings! Everybody rest assured, the hideous character of the type of Chinese community leaders such as Miaofei Pan will be revealed without mercy throughout the whole litigation process. The whole process will be turned

into a written record and distributed to those official organizations where Miaofei Pan, the leader of the Chinese community, once served, for instance, the National Overseas Chinese Office, the Overseas Chinese Committee of the National Congress, the Overseas Chinese Associations of Heilongjiang province, Beijing, Jinan city and Zhejiang province. Of course there is also the Vancouver Chinese consulate Let Miaofei Pan pay dearly for his abusive use of the litigation process. We will also let the Chinese in Vancouver and all those Chinese overseas take a look at the "multiple-faceted" life of this former executive chairman. Eighth Article (January 1, 2017) Another scandal of Miaofei Pan, the prominent Chinese community leader in Vancouver: his involvement suspected in the case where his nephew was dishonoured for owing a 60-million-dollar debt. This Article included the following: Miaofei Pan, the former executive chairman, current honourary chairman of Canadian Alliance of Chinese Associations, and his wife both managed to get on the "list of the dishonoured" released by both the highest court of China and Public Security Bureau of China. The total amount of the ill-gotten-gains to be enforced is as high as 28.50 million yuan RMB. As soon as the news broke, the public went into an uproar. Many business investor category immigrants who are Zhejiang natives and now living in

Vancouver are angry. How do you justify having such a person serve as a Chinese community leader? Ninth Article (January 12, 2017) Maiofei Pan, a questionable overseas Chinese leader in Vancouver, has deceived official mainland Chinese media by telling colossal lies again, claiming articles criticizing him have provoked indignation among many Chinese and overseas Chinese! This Article stated in part: Though hardly surprised to see Miaofei Pan so deceives mainland Chinese party media, I am nonetheless amazed by this guy being such a fighter jet among the deadbeats, which goes to show again that my articles criticizing Pan are not accurate but current. It is in fact your deadbeat behaviour that provoked indignation among old and new immigrants but you had the reporter take the hint and write that these articles critical of you provoked indignation among many Chinese and overseas Chinese. My fellow countrymen, how unbearably pathetic! Flat-out lying through his teeth - for leader Miaofei Pan to so deceive the mainland Chinese party and government is highly risky! I'd ask leader Pan meekly, would you have the confidence and strength to have the "brown-nosing" articles written following your hint run by the Chinese language media in Vancouver? Have you the cheek to distribute and broadcast them all over Vancouver? Isn't it just an effort at "disinfection" in mainland China

only? Tenth Article (January 13, 2017) The first case ever in Canada where a 'famous Chinese community leader' sues a Chinese media person has officially begun: plaintiff Miaofei Pan may take down four types of people with him, a big show has just begun! This Article included the following: You did not resort to any kind of communication, but insisted to have it the hard way. I, old Huang, am an obstinate person and will not allow you to puff up with arrogance. You have money, so what? You can abuse the litigation process just because you have money? Instead of taking the short route, achieving something in two minutes, he chose to take the trouble and spend the money to launch a legal action, causing me, old Huang, to deal with the lawsuit with my income from writing for the entire year. Is this a sensible choice for a multi-millionaire? This exactly shows that there is something fishy going on with Miaofei Pan. [6] It will be noted that the Articles were not watertight compartments; they overlapped substantially and references to earlier ones were made, often in slightly different terms, in later ones. The trial judge considered the Articles as related, and correctly so, in my view. As stated in Weaver v. Corcoran: In Brown on Defamation Professor Brown outlines the circumstances in which multiple statements and other materials may be read together to illuminate meaning. He

explains that statements on a related subject which refer to one another should generally be read together when determining the allegedly defamatory meaning of impugned words. For example, a story or caption on the front page of a newspaper should be read in combination with the article to which it refers, even though the article itself is found elsewhere in the newspaper. Similarly, where provisions of one document are cited in another, depending on the circumstances and issues for determination, it may be appropriate to read the two together to ascertain the meaning of impugned words. [At para. 78.] It will also be noted as a contextual matter that the Articles were written in an unusual way. As the trial judge observed at para. 202, Mr. Gao used "figurative language, colourful phrases, intentional exaggerations and sometimes what I assume is meant to be humour." Nevertheless, the Articles were apparently meant to be taken seriously, and there is no suggestion they were regarded by readers as some kind of joke. Trial Judgment [7] The trial of the plaintiff's claims in defamation occupied 11 days of court time. At least part of its length was no doubt due to the fact that, as the trial judge noted at para. 5 of her reasons, the parties do not speak English and their testimony (and interactions with the judge) therefore had to be translated by an interpreter. As well, Mr. Gao

was not represented by counsel at trial. [8] On November 30, 2018, Justice Sharma issued lengthy reasons in which she held that the plaintiff had successfully proven defamation (i.e., untruthful statements that were defamatory of the plaintiff and for which no defence was available) only in respect of the following: a) Article Four - specifically the meanings as pled in para. 26(b), (d) and (e) in the NOCC: that the plaintiff obtained his positions in certain organizations because he paid money to do so, rather than obtaining them on merit; that the plaintiff was involved in a real estate project that harmed hundreds of families (many of who blamed him), and; that the plaintiff exploited his connections and status overseas to avoid liability for a fraud perpetrated on those families. b) Article Eight - specifically the meanings as pled in para. 41(a), (b) and (d) in the NOCC: that the plaintiff wrongfully obtained monetary gains; that the plaintiff owes millions of yuan pursuant to Chinese court orders, and; that the plaintiff used his nephew as a front for his business in China, causing him to be in trouble, including incurring debts in China. [At para. 430.] [9] However, since the judge was not persuaded Mr. Pan's reputation as a "community leader" had been damaged by the defamatory statements, she held that only a nominal award was appropriate. Mr. Gao was ordered to pay $1

in damages and the Court declined to grant injunctive relief. The Appeal [10] The plaintiff appeals on the grounds that the trial judge erred as follows: a. By making a palpable and overriding error in finding that the appellant received the Canada child tax benefit; b. By making palpable and overriding errors in finding that [some] statements did not have a defamatory meaning; and c. By finding that the defence of fair comment applied where the opinion expressed could not be honestly held based on the facts proven. [11] Mr. Pan accepts that the trial judge properly stated the law regarding defamation and the defences to the tort generally at paras. 117-145 of her reasons. For our purposes, I note in particular her observation at para. 124 that a finding that words are capable of having a defamatory meaning (i.e., capable of lowering the plaintiff's reputation in the eyes of a reasonable or ordinary member of the public) is a matter of law, while a finding that the words are actually defamatory is a matter of fact. (Citing Mainstream Canada v. Staniford 2013 BCCA 341 at paras. 14-15; see also Northwest Organics, Limited Partnership v. Fandrich 2019 BCCA 309 at paras. 59-65.) At para. 150, the judge concluded as a matter of law that all the statements in question were capable of having a defamatory meaning, unless otherwise indicated in her reasons. [12] The judge endorsed a

well-known passage from Color Your World Corp. v. Canadian Broadcasting Corp. (1998) 38 O.R. (3d) 97 (C.A.), in which Abella J.A., as she then was, adopted the following description of what makes a statement defamatory: A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him [or her] in the estimation of right-thinking members of society generally and in particular to cause him [or her] to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society. Hence the test is an objective one [At 106; citations omitted.] [13] At para. 126, the trial judge also stated, correctly, that where a plaintiff establishes a prima facie case of defamation, falsity and damage are presumed. The onus then shifts to the defendant to advance a defence. In Grant v. Torstar Corp 2009 SCC 61, Chief Justice McLachlin summarized the cause of action and the applicable onus of proof as follows: A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) that the words in fact referred to the

plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se: R. E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), vol. 3, at pp. 25-2 and 25‑3.) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability. If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability. [At paras. 28-9.] [14] The truth, or substantial truth, of a statement provides a complete defence (also known as the defence of justification). The other possible defences are qualified privilege (not advanced in this case); fair comment (which will be described later in these reasons); and, as a result of the decision in Grant v. Torstar, "responsible communication on matters of public interest." The Court in the case at bar ruled that the latter two defences could be relied on by Mr. Gao, even though he had not pleaded them by name in his Response to Civil Claim: see paras. 10-22 of

the reasons. Ultimately, she found that the "public interest" defence was not made out: see paras. 426-9. [15] It is in the trial judge's "inference-finding process" that the plaintiff asserts error in this case, even though he acknowledges the high standard of review that must be applied by appellate courts to a trial judge's findings and inferences of fact. In Housen v. Nikolaisen 2002 SCC 33, the majority stated: the standard of review is not to verify that the inference can be reasonably supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts. Although we agree that it is open to an appellate court to find that an inference of fact made by the trial judge is clearly wrong, we would add the caution that where evidence exists to support the inference, an appellate court will be hard pressed to find a palpable and overriding error. [At paras. 21-22; emphasis added.] At para. 23, the majority continued: If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. [Emphasis added.] [16] In H.L. v. Canada (Attorney General) 2005 SCC 25, Fish

J. for the majority observed that the foregoing passage from Housen "should not be taken to have decided that inferences of fact drawn by a trial judge are impervious to review though unsupported by the evidence." In his words: Nor should they be taken to have restricted appellate scrutiny of the judges' inferences to an examination of the primary findings upon which they are founded in the process of reasoning by which they were reached. Appellate scrutiny determines whether inferences drawn by the judge are "reasonably supported by the evidence". If they are, the reviewing court cannot re-weigh the evidence by substituting, for the reasonable inference preferred by the trial judge, and equally - or even more - persuasive inference of its own. This fundamental rule is, once again, entirely consistent with both the majority and minority reasons in Housen. [At paras. 73-4.] [17] The foregoing principles were summarized in Fuller v. Harper 2010 BCCA 421, where Madam Justice D. Smith stated for this court: If there are no positive proven facts from which an inference can be drawn, then a conclusion based on an inference that lacks an evidentiary basis is speculative. Speaking for the Court in Hall v. Cooper Industries Inc., 2005 BCCA 290, 40 B.C.L.R. (4th) 257, leave to appeal to SCC refused, [2005] S.C.C.A. No. 351, Mr. Justice Thackray observed: [47] ... inferences must be drawn

from "accepted facts" and "must be reasonably supported by the findings of fact of the trial judge." If a trial judge errs in the finding of facts upon which the inference is drawn, then the "inference-drawing process" is in error. (See Housen v. Nikolaisen). [At para. 38.] See also District of West Vancouver (Corporation of) v. Liu 2016 BCCA 96 at paras. 56-7. The Child Tax Benefit [18] With these observations in mind, I turn first to the trial judge's findings concerning the allegation (in the First, Second and Fourth Articles) that Mr. Pan, who acknowledged he is a "wealthy" man, had claimed and received the Canada child tax benefit ("CTB") and "concealed" or misrepresented his income in his tax returns in order to do so. Counsel for the plaintiff confirmed in this court that it was not being contended Mr. Gao had asserted Mr. Pan had concealed or misstated his income generally, but only that he had done so for the purpose of claiming the CTB. [19] It is unfortunate that virtually no information was put before the trial court concerning the workings of the CTB. It is apparent from the Second Article and from his questions of Mr. Pan at trial that Mr. Gao was under the impression the benefit could be claimed only by taxpayers with taxable income of $30,000 or less. It appears the trial judge had the same impression: see paras. 49 and 108 of her Reasons. [20] Counsel confirmed

to us on appeal, however, that at the material time (2007-2010) the CTB was calculated on a declining scale. I note that there is in evidence an article from WeChat that reports that "Families with net income below $30,000 per year will receive the maximum and families earning more than $200,000 per year will see their payments eliminated." (My emphasis.) This report is dated December 17, 2016. [21] The 'sliding scale' evidently remains in force. At present, parents with "adjusted family income" of less than some $31,120 receive upon application the entire CTB, while those with higher incomes receive an amount that declines the higher the income. According to a publication of the Canada Revenue Agency ("CRA") entitled "Canada Child Benefit", the CTB for 2019-20 is calculated as follows: · $6,639 per year ($553.25 per month) for each eligible child under the age of 6; · $5,602 per year ($466.83 per month) for each eligible child aged 6 to 17; These amounts start being reduced when the adjusted family net income (AFNI) is over $31,120. The reduction is calculated as follows: · for families with 4 or more eligible children [Mr. Pan has four children], the reduction is 23% of the amount of AFNI between $31,120 and $67,426, plus 9.5% of the amount of AFNI over $67,426. [Emphasis by underlining added.] In the absence of evidence to the contrary, I will proceed on the assumption that

the CTB operated in a similar manner in earlier years, with perhaps slightly different numbers. [22] The CRA publication advises taxpayers that: You should apply even if any of the following situations apply: · Your current adjusted family net income is too high. We calculate your amount every July based on your adjusted family net income for the previous year. In order to apply for the benefit, a taxpayer must go online, call CRA by phone, or fill out application Form RC66. One does not apply by means of the tax return itself. Once received, the CTB constitutes income and must be reported in the taxpayer's tax return at line 117. [23] No particular taxation years in which Mr. Pan may have claimed the benefit were suggested by Mr. Gao in his Articles or in his pleading, but at trial the focus was on the years 2007-2010. By the time the trial commenced, Mr. Pan had not disclosed any of his tax returns to the defendant. However, two "screenshots" of CRA summaries had been listed and provided. These were forms generated by the CRA and addressed to Mr. Pan. They stated: According to our records, you do not receive the Canada child benefit (CCB). To find out more about the CCB, go to Canada child benefits. A similar screenshot was provided in respect of Mr. Gao's wife, Ms. Yang. [24] In the course of Mr. Gao's cross-examination of Mr. Pan at page 90 of the transcript, Mr. Gao asked

Mr. Pan if he could provide notices of assessment for the four years to the Court since "it would prove whether or not you received child tax benefit or if it's a lie." Mr. Pan replied, "If the court requires that, I will be able to provide them." Trial counsel for Mr. Pan (not counsel on appeal) objected that it was not the "appropriate time to do that", since Mr. Gao had had the opportunity to demand documents before trial and had not done so. In her submission, Mr. Gao was "not allowed to ask here." [25] The following exchange then occurred: THE COURT: I think in fairness to him, because he's not legally trained, I think what he's saying is, the tax return would show whether he claimed the child tax benefit, so why didn't he produce them. That's how I understood the question. If you think I've misinterpreted the question . [COUNSEL]: Yeah, it's an awkward question because of course Mr. Gao had the opportunity to demand documents. We would have given -- I'm not going to give evidence about the advice we gave our clients, but generally speaking lawyers would give their clients advice about what they should produce, and we gave our client advice about what he should produce according to the court Rules. THE COURT: Okay. [COUNSEL]: And he did that. Mr. Gao chose not to do an examination for discovery. We've reminded him and Mr. Guo, his one-time lawyer, that he had that

opportunity. And in my view we've been very helpful in terms of reminding Mr. Gao of his rights during the litigation. So I don't -- I would object to that question phrased that way because it puts Mr. Pan in a position that's not fair, and probably prejudicial. One brief point. THE COURT: Yes. [COUNSEL]: I just -- in terms of the burden of proof, of course it's Mr. Gao's in terms of the - THE COURT: Yes, I understand. [COUNSEL]: -- defamation aspect and the truth of the statements. THE COURT: I understand. [Emphasis added.] [26] The judge expressed her concern that, taking into account the fact that the defendant was unrepresented and did not speak English, she had to consider "the larger issue of what is fair and just and I'm not quite sure ." She asked the parties to think about "whether or not it's appropriate for Mr. Gao to ask questions about tax returns that are not part of the documents." She made no reference to notices of assessment. [27] Counsel for the plaintiff submitted that the burden of proof was on Mr. Gao to establish that the statements he had made regarding Mr. Pan's obtaining the CTB were true (i.e., the defence of justification) and noted the "danger of shifting the burden of proof when it's not simply a small procedural matter where the court is giving deference to a non-represented litigant." The judge asked whether Mr. Gao had been represented at any

point in the litigation; counsel for the plaintiff said he had; and her colleague advised that at a pre-trial management conference, "The judge asked if documents had been disclosed and we said yes." No specific documents were discussed. Mr. Gao disagreed, stating that only procedural issues had been discussed at the conference, not substantive ones. [28] When proceedings resumed, the trial judge gave both parties another opportunity to state their positions and in particular, asked counsel for the plaintiff whether the tax returns had been listed on her client's list of documents. Counsel said they had not been, and that she was uncertain "whether a tax return would actually show whether or not a taxpayer receives the Canada child benefit". She emphasized the screenshots that were in evidence. The Court and counsel then discussed the law relating to disclosure of documents in the context of a defamation case (with counsel relying in particular on Fletcher-Gordon v. Southam (1997) 28 B.C.L.R. (3d) 187 (B.C.S.C.)). The judge said it was "difficult to see" how a tax return would not be relevant to the CTB question and noted that the two screenshot forms were both dated February 2017. [29] After further discussion, the trial judge said she "would have thought [the plaintiff's] income tax return is the starting point. And if it wasn't relevant I would've thought you [counsel for

Mr. Pan] could tell me that, [it is] definitely not [relevant]." Counsel responded that if the Court were to ask Mr. Pan why he had not produced the returns, the Court would be effectively "inviting him to tell the court that he did what his lawyers advised him to do." [30] Finally, the judge stood down, following which she made an oral ruling requiring Mr. Pan to produce his income tax returns for the years 2007-2011. In her reasons, the trial judge acknowledged that the legal burden to persuade her that the statement in question was true was on Mr. Gao. However, she said: Counsel for Mr. Pan submits requiring him to provide documents to disprove an element of a defence to defamation is inconsistent with the burden of proof. I do not see the issue that way. One of the most important obligations of litigants is to disclose all relevant documents to the other side prior to trial. Once it was clear that Mr. Gao claimed that the statement he made was true, any document that tended to show one way or another if that statement was true became relevant. Documents that are relevant must be listed by each party so the other side has the opportunity to look at those documents. The income tax returns were not listed. Mr. Pan's counsel says there are documents listed and produced by Mr. Pan that address the truth of the allegation about the child tax benefit. It is not clear to me that

these documents do so, but I may hear more about these documents later. However, in my view, that does not completely answer the question before me. Absent a clear indication from counsel or the parties that a person's income tax return would certainly not tend to prove one way or another if a child tax benefit was claimed, the income tax return is relevant. That being the case, the question is appropriate and must be answered by Mr. Pan. [At paras. 3-4.] [31] Having made this ruling, the trial judge asked Mr. Pan to explain why he had not produced the returns prior to the commencement of trial. (Mr. Pan, who cannot read or write English, had testified that he did not understand "tax return stuff".) He replied that he was "very willing" to produce them, whereupon the judge asked again why he had not done so. He said he had "already provided" them and referred to the screenshots: A Well, in the tax return there's no indication of whether or not I received, you know, a child tax benefit. But this document, however, you see the date here, February 17th, 2017, that means before that date I've never received child tax benefit. It's printed out from CRA. If I go there today to have a printout, it would show the date of today and showing that I have never received a child tax benefit before today. This is CRA's website. These two pages were printed out by my accountant with my

request. I know very clearly I've never received any child tax benefit. [Emphasis added.] THE COURT: Thank you for your answer. [32] Later in the trial, counsel for Mr. Pan advised the Court that his client's accountant would be coming to court with the tax returns as ordered and that both redacted and unredacted forms would be brought, since parts of the tax return were, in counsel's view, not relevant. In her submission, if the returns had been disclosed in the course of litigation, "we would have certainly redacted sections that are not relevant, and we have done so with these." Mr. Gao objected, stating that he wanted the tax return documents to be "completely clear of any kind of, you know, cover-up. And if there's anything that's covered, I do not accept that." The judge thanked him for his submission. There was no further discussion of the topic of redaction after this point and the trial judge did not request un-redacted versions. [33] On the fifth day of trial, Mr. Pan's chartered accountant, Mr. Zhang, was called to testify. Mr. Zhang told the Court that the CTB was a supplemental benefit "given to families who have kids and whose income meet [sic] a certain requirement" and that taxpayers must apply for such benefits. He was shown four different tax returns (or so I will call them) of Mr. Pan's for the years 2007-2010. Mr. Zhang recognized them as the "T1 generals"

he had prepared for the plaintiff. He was asked if at any time since he had been Mr. Pan's accountant (i.e., since 2007), Mr. Pan had ever "applied to receive" the CTB. He answered "no". [34] The accountant was taken to line 117 on each of the documents, where, he explained, any part of the CTB received by a taxpayer must be disclosed. This is true, he said, no matter how much the taxpayer earns. Line 117 was blank on all four returns even though, Mr. Zhang testified, Mr. Pan had been eligible to receive it. Mr. Zhang explained that a blank line 117 means either that the taxpayer has never applied and never received the benefit or that "the spouse has a lower income than his, so that benefit will be reported on the spouse's tax return." He testified that neither Mr. Pan nor his wife had ever received the benefit. He had discussed with Mr. Pan whether he should claim it and "Mr. Pan decided not to claim." [35] Counsel for the plaintiff asked Mr. Zhang, "What firm do you practise with?" He replied that he works for Fairhall Zhang & Associates Ltd. He was excused after some unfruitful questions were asked by Mr. Gao concerning his knowledge of "what the Chinese community knew or did not know" about his client. [36] A few days later, Mr. Zhang was recalled for further cross-examination by Mr. Gao. The accountant was asked to explain why, at the bottom of the four returns, the name

"Li Jing Accounting and Tax Services" appeared, as opposed to the name of "Fairhall Zhang & Associates Ltd." Mr. Zhang explained that at the time the returns had been prepared, he had been working part-time for his wife's business, Li Jing Accounting and Tax Services. As well, he explained that all four returns were dated October 10, 2017 because that was the date he had printed them in preparation for court. [37] The accountant was questioned at length on both these topics by Mr. Gao. The subject of the firm name under which Mr. Zhang practiced was entirely irrelevant to the issues before the Court and considerable court time was wasted by Mr. Gao's suggestions that Mr. Zhang was "representing his wife" and could not testify regarding Mr. Pan's tax returns. [38] In response to Mr. Gao's suggestion that the accountant had just "downloaded" the returns, Mr. Zhang testified as follows: Second is this file, this return, was not downloaded. The file was restored. According to CRA's rule, six years is the maximum, okay, required record-keeping time limit. ... The common practice is when we finish a tax return, we print out a summary for the client for reference for their record-keeping, not the full set. Not the full set. Back then very few accounting firms were archive [sic] by PDF files, back then. Only backup the data file. So when it's needed, we will restore the original data

from the data file. The October 10, 2017 date represents the date I got a phone call from the lawyer, and we found the backup file and restored it. [Emphasis added.] [39] The following questions and answers then appear in the transcript: Q Can you explain to me my understanding of that term "restored" meaning that you used the information for those years and you filled out a new one. Is that correct? A No, that's not correct. We restored the data file from its original format. The one you mentioned is called reconstruct. We haven't done that. We restored from the original form. [Emphasis added.] Q So for those four years, you printed them out in one time? A Yes. If you pay attention to the page, you can see the difference. Only one minute apart. I printed them out. Q So when you submit this to CRA, then CRA would refer to this document as the directives they would take, right? A That's correct, And on CRA's notice of assessment, it will show you when they received the file, when they assessed the file, whether there will be any adjustment or not. [Emphasis added.] [40] At the very end of Mr. Zhang's cross-examination, the following questions and answers appear: MR. GAO: Well, just correct me if I'm wrong. I tried to print out my tax form for 2010, but each time I got the date as 2010. So can you educate us here why there's a difference. A First, of all, I don't know which

software you're using. We're using professional accountant software. The software has options for us to manipulate the date. Yes, and we can change anything we want because it needs the necessity to do tax planning, okay, to backdate things to see what the tax consequences would be. That's the function of the software, professional. Q That means you can change it? THE COURT: Change the date. MR. GAO: Q Sounds to me like you can change the content. I'm not talking about the date. A Yes, anything can be changed. MR. GAO: That's all my questions. Trial Judge's Findings [41] The trial judge described Mr. Zhang's testimony at paras. 70-76 of her reasons and discussed the tax return documents more specifically at paras. 169-177. Again, she said it was "extremely difficult to believe" that neither Mr. Zhang nor the plaintiff "possess between them a single true copy of any of the plaintiff's tax returns as they were filed each year, with the accurate filing date printed on it." Nor had the Court received any explanation as to why the annual summary given to the plaintiff by Mr. Zhang had not been produced in evidence. (There is no evidence the summaries would show whether the CTB was claimed.) The plaintiff's failure to produce these "crucial documents" had, the judge said, led her to draw an adverse inference against Mr. Pan. (At para. 76.) [42] Beginning at para. 169, she elaborated

on her concerns about Mr. Pan's credibility. Her analysis is sufficiently important to this appeal that I must reproduce it here: Most disturbing is the plaintiff's position at trial that he was not obliged to produce his T1 Income Tax Returns. They ought to have been produced before trial. When given the chance to correct that deficiency during the trial, the plaintiff relied on his accountant who did not bring a true copy of the document submitted to CRA; instead he brought documents created during the trial. From that omission and based on my discussions at paras. 70-76, I draw an adverse inference that the plaintiff did not produce a true copy of his filed income tax returns because if he had done so, they would have revealed that he did claim the CTB. In the event I am wrong to draw that inference based on the initial non-disclosure, I conclude looking at the totality of the evidence that the inference is reasonable. Only when recalled, did Mr. Zhang explain that the professional accounting software he used to create the returns that were put into evidence, generates the date on the final signature line which is date the data is run through the software. He testified that is why the date on all four returns adduced at trial was October 7, 2017. He also explained that to create the returns he had to restore the original, raw data and run the program. He testified that the

software is sophisticated and allows professionals to manipulate any portion of that data in order to allow consideration of the implications of tax blending, or amendments to previous returns. He confirmed anything (figures and dates) can be changed. Given those factors, I did not accept the returns as being reliable. I also note that many boxes on the returns are blacked out and cannot be read; the version sent to CRA would not contain those redactions. In other words, what the plaintiff produced were "new" documents. They were not true copies of the tax forms submitted to CRA. Also, Mr. Zhang testified that he prepared summaries for clients about their tax returns, yet no summary was produced. No tax assessments were put into evidence either. Furthermore, no explanation was given for why Mr. Zhang prepared the plaintiff's income tax returns, not through his regular employment, but via his wife's now defunct business. He did not mention this until he was recalled to give evidence. It is difficult to believe that was merely an oversight. The plaintiff was given the opportunity (which arguably, he may not have been entitled to) to remedy his non-disclosure of clearly relevant documents, mid-trial. What the Court expected was the plaintiff would produce true copies of his T1 Income Tax Returns submitted to CRA for the years 2007 to 2010. Those were not produced. Therefore, in

the alternative, relying on the initial non-disclosure and all circumstances referred to in the preceding paragraphs, I draw the adverse inference that the plaintiff did claim the CTB. Is the allegation that the plaintiff evaded taxes true? As noted earlier (para. 49 in his direct testimony, the plaintiff denied that he had ever claimed his income was low enough to make him eligible for the CTB. His evidence on that during his direct-examination was firm and unqualified. However, he was forced to recant in order to buttress the testimony of his accountant that the plaintiff was legally entitled to claim the CTB, but chose not to. That reversal was telling and further eroded the plaintiff's credibility. I have already concluded it is appropriate to draw an adverse inference that the tax returns submitted in court were not the original ones submitted to CRA, and are not reliable. It is noteworthy that there are substantial redactions on the returns that were put into evidence. No permission was sought ahead of the admission into evidence of those returns to remove such information. If there was a concern about privacy, that could have been raised, and it is possible that those exhibits could have been sealed, or with the Court's permission, portions redacted. Rather than pursue either course, the plaintiff chose to simply black out information on his tax returns. Based on those

factors, I infer that the plaintiff has not disclosed his "true income". Accordingly, I find on a balance of probabilities that the plaintiff did claim the CTB and he did evade paying taxes. The defendant is entitled to rely on the defence of truth with regard to para. 13(b). [At paras.169-177; emphasis added.] [43] At para. 216, the judge also adopted this reasoning in connection with the Second Article and in particular, the imputed meaning pleaded by the plaintiff at subpara. 17(a) of his NOCC, namely that "the plaintiff was dishonest about his personal income in order to improperly obtain the tax benefit." (See also para. 263 of the Court's reasons concerning the Fourth Article and subpara. 26(a) of the NOCC.) On Appeal [44] On appeal, Mr. Pan first submits that an adverse inference may be drawn only after the party bearing the burden of proof (on this point, Mr. Gao) has established a prima facie case. In support, counsel referred us to Dwyer v. Mark II Innovations Ltd. (2006) 208 O.A.C. 305, where the Court stated at para. 4: The trial judge in coming to the conclusion that he did, drew an adverse inference from the failure of the employer to testify. We do not think an adverse inference was appropriate in the circumstances. An adverse inference should be drawn only after a prima facie case has been established by the party bearing the burden of proof. For the reasons

given above, we do not think the evidence led by the respondent established a prima facie case that the contract of employment was for a fixed term. [At para. 4; emphasis added.] See also Sopinka, Lederman and Bryant, The Law of Evidence in Canada (4th ed., 2014) at §6.450-1; Lambert v. Quinn (1994) 110 D.L.R. (4th) 284 (Ont. C.A.) at 287; Thomasson v. Moeller 2016 BCCA 14 at para. 35; and Zawadzki v. Calimoso 2011 BCSC 45 at para. 149. [45] Mr. Gao did not address this argument directly in this court, but emphasized in his factum the trial judge's statement that even if she was wrong to draw the inference she did, the "totality of the evidence" was such that the inference was reasonable. [46] In my view, the trial judge erred in law in drawing an inference that Mr. Pan had failed to disclose his "true income" on his returns; and that he had claimed and received the CTB and 'evaded' taxes in order to do so. (At paras. 176-7.) As trial counsel reminded the judge, the onus was on Mr. Gao to show that his statements to this effect were true. There was simply no evidence to suggest Mr. Pan had ever claimed or received the CTB; thus no prima facie case had been established by the defendant. The onus on him could not be met by drawing an adverse inference contrary to the evidence adduced by the plaintiff that he had not claimed or received the benefit. The fact that Mr. Pan should

have disclosed the returns did not shift the onus of proof. [47] The trial judge was clearly critical of the facts that Mr. Pan had not disclosed the tax returns pre-trial, that the documents produced by Mr. Zhang were not signed paper copies and that the returns he "restored" were extensively redacted; but explanations were provided. Accounting firms did not in the relevant years usually retain photocopies of taxpayers' paper returns; counsel had strongly hinted that in light of the onus of proof, Mr. Pan had been advised by counsel he need not disclose his returns in discovery; and counsel had offered to provide un-redacted copies of the returns if the Court wished. The judge did not respond to this suggestion - until her reasons were released. She seems to have found Mr. Pan's reluctance to "answer to [the] Court about his business affairs" (see para. 451) and his testimony that he did not understand (Canadian) "tax return stuff", to be somehow disrespectful or even arrogant. (As mentioned, he did not read or write English.) The circumstances did not, however, warrant her strong reaction as a matter of trial fairness; nor did they permit the drawing of the adverse inference as a matter of law. [48] Mr. Zhang's acknowledgement that the professional software for accountants "has options for us to manipulate the date" and to "change anything we want" in order to do tax planning

did not amount to a 'concession' that the returns he provided did not accurately reflect what was filed. He stated clearly that he had not carried out a "reconstruction" but had "restored [the returns] from the original form". Further, the fact the tax returns were redacted does not mean that the blank at line 117 did not constitute evidence that the CTB had not been claimed. These were not "new" documents, but "restored" ones, and counsel for Mr. Pan had assured the Court that if a non‑redacted set was required, she had it ready to be handed up to the judge. [49] The returns did indicate Mr. Pan's taxable (Canadian) income for the four years in question, which ranged between $34,000 and $49,000. (His foreign income was referred to in Schedule 4 to the returns.) At paras. 49 and 51, the judge recalled that in direct examination, Mr. Pan had answered 'no' when asked whether he had ever "on any form or questionnaire or with Revenue Canada" stated his income as "$30,000" annually. She found that considered in context, the answer was meant to convey that he "made more income than the $30,000 ceiling for claiming the CTB." "Yet" (she said at para. 51), Mr. Pan acknowledged on redirect that for some years his income "would have made him eligible for the CTB, but he chose not to claim it as he had ample savings." The trial judge found a contradiction here, and suggested it had arisen

only because she had ordered the tax returns to be produced. This "contradiction" falls away when it is realized that the CTB is not subject to a $30,000 or $31,000 "ceiling" over which no part of the benefit may be claimed. And, contrary to the trial judge's suggestion, it appears Mr. Pan was being truthful when he denied ever having stated his income as $30,000 or less. [50] At para. 175 the judge continued in the same vein. She observed that in cross-examination, Mr. Pan had been "forced to recant" his denial of having claimed his "income was low enough to make him eligible for the CTB", in order to "buttress the testimony of his accountant that the plaintiff was legally entitled to claim the CTB, but chose not to". This was not, with respect, a "telling reversal" that "further eroded the plaintiff's credibility." Mr. Zhang's evidence was that any parent was entitled to claim the CTB, but that it had to be applied for. The "Child Tax Benefit" schedules to Mr. Pan's tax returns, which were generated automatically by computer, suggest that he could have claimed a few thousand dollars each year had he chosen to do so. He testified that he did not want to "take advantage" of the benefit and that he was able to "raise [his] kids in a pretty comfortable way" without it. As already mentioned, Mr. Zhang also testified that he had discussed the CTB with Mr. Pan, and Mr. Pan had

chosen not to claim it. (It is worth emphasizing that it would not be defamatory for anyone to say he had claimed the CTB; but Mr. Gao went further and suggested Mr. Pan had concealed income to obtain the benefit.) [51] In addition to declining to accept the returns as reliable, the trial judge was obviously critical of Mr. Zhang, who she said had provided "no explanation" as to why he had prepared Mr. Pan's tax returns "not through his regular employment, but through his wife's now defunct business. He did not mention this until he was recalled to give evidence." (At para. 173.) With respect, whether Mr. Zhang was working at the time for his wife's firm or not was irrelevant. Mr. Zhang, a chartered accountant, was clear that he and only he had personally prepared Mr. Pan's income tax returns for the past many years - a fact not countered or challenged. He was never asked what firm he had worked for in 2007-2010. The inference drawn by the trial judge reflected negatively on Mr. Zhang's honesty and professional integrity and such a criticism should not have been expressed, as it was, for no good reason. [52] Taken altogether, the erroneous drawing of the adverse inference, the illogicality of the judge's reasoning and her misapprehension of the workings of the CTB led the Court, in my view, into reversible error. I acknowledge the high degree of deference required to be

accorded to the findings of fact of a trial court, but as noted by the Supreme Court of Canada in H.L. v. Canada, such findings are not "impervious to review". The conclusion that Mr. Pan had claimed and received the CTB and thus "evade[d] paying taxes" (para. 177) was entirely unsupported by the evidence and was the product of a palpable error in the inference-drawing process. Fresh Evidence [53] If I were wrong on this point, Mr. Pan's motion to adduce fresh evidence in this court would become relevant. The newly proffered evidence consists of an affidavit of Ms. Yan, of counsel for the appellant. She deposes that she called the Canada Revenue Agency ("CRA") on February 12, 2019 and spoke with one "Ryan" (who did not provide his last name). He told her CRA's records showed that Mr. Pan had first filed a Canadian tax return in 2005 and he had never collected the CTB or "Canada child benefit." He said CRA did not have a "standard way" of reporting whether a person had received the benefit over his or her lifetime and he offered to seek permission to send Ms. Yan a copy of a screenshot from his computer system "showing that CRA did not have a record of ever paying a child benefit to Mr. Pan." He suggested that Ms. Yan obtain the authorization of Ms. Yang in order to obtain her information, which Ms. Yan did. [54] Ms. Yan deposes further that on March 14, 2019, her office

received a letter from CRA dated March 4 stating: "Miaofei Pan, account number ****, no children exist for this account." A copy of the letter is exhibited to Ms. Yan's affidavit. In addition, Ms. Yan had logged on to Mr. Pan's online account and downloaded printouts of CRA's notices of assessment for 2007-2011, which are attached as exhibits to her affidavit. Under the heading "Total Income", various lines for types of income are shown, but there is no reference to the CTB (which as mentioned is required to be included in income for tax purposes, if received.) The amount of income referred to in each of the Notices of Assessment is very close, if not identical, to the figures in the tax returns which Mr. Zhang prepared and filed, and which were in evidence at trial. [55] Finally, Ms. Yan deposes: On April 16, 2019, I called the CRA to obtain a confirmation of whether Wenhuan Yang, Mr. Pan's wife, had ever obtained Child Benefit. I spoke with three CRA agents: Kee, CRA agent number 360590; Kuljinder, CRA agent number 205989 PAC; and Aissata, CRA agent number 204400 PAC. Kee advised me that Ms. Yang had never collected the Child Benefit, but he would not agree to send confirmation in writing. Aissata eventually agreed to send the same information in writing that CRA had provided with respect to Mr. Pan. On April 25, 2019 when Wenhuan Yang received a letter from the CRA dated

April 16, 2019. The letter, under CCB Child(ren) Information, shows that there is no child's name and birthday appearing. A copy of this letter is attached as Exhibit C. [56] Notwithstanding the objection of counsel for Mr. Gao that Ms. Yan's affidavit is "double hearsay", I find it to be sufficiently reliable to be accepted for the truth of its contents. [57] In order to be admissible as fresh evidence, however, Ms. Yan's affidavit would of course have to meet the criteria in R. v. Palmer [1980] 1 S.C.R. 759, all of which are intended to further the interests of justice. If I had not ruled that the trial judge erred in the inference-drawing process, it could be expected to have affected the result. On the other hand, the information likely could have been produced earlier through due diligence on the part of plaintiff's trial counsel. In this court, Mr. Pan argues that it was reasonable for him to have concluded it was not possible for Mr. Gao to have met the onus on him "based on his [the plaintiff's] theory about the news articles." Nevertheless, the obligation to disclose all relevant documents still applied to him. [58] I need not decide the fresh evidence application, however, given my conclusion that the trial judge erred in inferring Mr. Pan had claimed the CTB and, ipso facto, in finding that he 'concealed' or misrepresented his income in order to receive the

benefit. [59] In the result, I am of the view that the trial judge erred in ruling that the allegations described at subparas. 13(b), 17(a) and 26(a) of Mr. Pan's NOCC were true. Mr. Gao did not establish the defence of justification. No other defences were raised. Non-Defamatory Statements? The Legal Framework [60] Mr. Pan's second major ground of appeal relates largely to the trial judge's findings that certain other statements made in the Articles were not defamatory in light of the trial judge's belief about the way "right-thinking and thoughtful" people would view the government of China. (I note the suggestion made by Allen Linden and Bruce Feldthusen in Canadian Tort Law (9th ed., 2011) that the "right-thinking" standard had been "somewhat diluted" so that courts now tend to consider what people of "fair average intelligence" would think, or what "ordinary decent folk in the community in general would feel." (At 760.) They do not make this suggestion in the most recent edition of their book (11th ed., 2018), however, and in Bou Malhab v. Diffusion Métromédia CMR Inc. 2011 SCC 9, the Supreme Court in obiter seemed to equate the "right-thinking" person with the "reasonable" or "ordinary" person. (At paras. 35-6.) [61] In determining whether words are defamatory, the "natural and ordinary" meaning of the words is applied: see Taseko Mines Ltd. v. Western Canada Wilderness Committee 2017 BCCA 431 at para.

47. More recently, in para. 31 of Kazakoff v. Taft 2018 BCCA 241, this court quoted with approval the following passage from Brown on Defamation: A court must be guided by the test of reasonableness. It will not strain to give a particular meaning to published words, or stretch them beyond their fair meaning. It will avoid any unusual meaning, or a tortured, forced or unreasonable interpretation of the language, and the inferences drawn must not be far-fetched. Words will not be distorted to give them an unusual meaning. They should be judged by their general tenor. The language will not be tortured to make certain that which is not certain. It is not the ingeniously possible interpretation, but the plainly normal construction that is preferred. [At §5.3(1)(a); emphasis added; footnotes omitted.] [62] A brief reference to the law relating to judicial notice may also be useful. In R. v. Find 2001 SCC 32, McLachlin C.J.C. stated for the Court: Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable

persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy [At para. 48; emphasis added.] The two criteria are often referred to as the "Morgan" criteria: see E.M. Morgan, "Judicial Notice" (1944) 57 Harv. L. Rev. 269. [63] In R. v. Spence 2005 SCC 71, Binnie J. for the Court suggested that when "social" or "legislative" facts are in issue, the taking of judicial notice may be more nuanced than the two criteria might suggest and that the role of the facts at issue in a given case will affect whether judicial notice may be taken. The more such facts become dispositive of an issue in dispute, the more pressing it is to meet the two Morgan criteria. In circumstances where social facts merely "paint the background" to a specific issue, courts may be more willing to take judicial notice of them and the threshold is lower. (See paras. 63-5.) In my opinion, the facts at issue in this instance fall closer to the 'dispositive' end of the spectrum. Failing to Pay Chinese Taxes [64] The first of the statements we are concerned with appeared in Mr. Gao's Second Article. For convenience, I set out below the statements said to be defamatory: Dear readers, trust you've seen clearly that the personal income tax owed by Mr. Pan in mainland China for last year is 32.312 million RMB ($6 million CAD) on top of sales tax, city

maintenance and development tax, education subsidy tax and so forth, totally [sic] RMB 440,000 RMB. Also take a look at the tax collection notice for Mr. Pan's wife Ms. Wenhuan Yang. Now the uninformed onlookers, trust you've seen this clearly? I had to rub my eyes hard to see the digit group separators clearly. This notice shows that Mrs. Pan owes RMB 9.2 million in personal income tax. The two notices total 32,312,000 + 440,000 + 9,200,000 = 41,952,000 yuan or $8.3 million CAD. Folks, these only represent taxes such as the income tax and sales tax the Pans owe. People would have to wonder, how much on earth did Miaofei Pan earn that year. According to informed sources, these amounts were declared by Miaofei Pan himself, and involved a half-baked building construction project called Huachen Yipin in Cangnan County. People say the project defrauded hundreds of local home buyers. The entire project was constructed Zhejiang Lingyang Real Estate Company in which Miaofei Pan held a controlling interest while the frontline person-in-charge was Zufan Zheng, a partner of Pan. From what we've learned so far, Zheng has been detained by police. [Emphasis added.] [65] In his NOCC Mr. Pan pleaded: 17. In their natural and ordinary meaning, or in the alternative, by way of innuendo, the words set out in paragraphs 15 and 16 meant and were understood to mean: b. Mr. Pan has not paid

government taxes owing; This allegation may also be related to the statement in the Ninth Article describing Mr. Pan as a "fighter jet among the deadbeats" whose behaviour had "provoked indignation among old and new immigrants". This was followed by: Flat out lying through his teeth - for leader Miaofei Pan to so deceive the mainland Chinese party and government is highly risky! [66] At trial, Mr. Pan consistently denied that he had ever owed taxes in China and indeed, testified that "the tax authority [in China] does not allow anyone to be so audacious [as] to owe this much tax to the government." [67] The trial judge found it unnecessary to decide whether the defence of truth applied. She ruled that the reference to "taxes owing" was to taxes owed to the government of China and that therefore, the imputed meaning was not defamatory. In her analysis: I take judicial notice that China is not considered a free democracy akin to Canada (see also discussion above at paras. 98 and 99), and that it is reasonable to assume Canadians harbour doubts about whether the Chinese government treats its citizens fairly with regard to taxation. It could be that there are facts that would temper or rebut the facts for which I have taken judicial notice, but no evidence was led to establish that. Nor was any evidence led to demonstrate that Chinese Canadians have a different perception than I

have described. The burden is on the plaintiff to persuade the Court that Impugned Statements are defamatory. I am satisfied based on the status and reputation of the Chinese government that it is not defamatory to suggest someone owes taxes to the Chinese government. [At para. 211; emphasis added.] Deceiving Chinese Media [68] The second set of statements of concern appeared in the Ninth Article, about which Mr. Pan had pleaded: 42. On January 12, 2017, Mr. Gao published another post on WeChat, entitled "Miaofei Pan, a questionable overseas Chinese leader in Vancouver, has deceived official mainland Chinese media by telling colossal lies again, claiming articles criticizing him have provoked indignation among many Chinese and overseas Chinese! (the "Ninth Defamatory Post") 43. In the Ninth Defamatory Post, Mr. Gao stated: Though hardly surprised to see Miaofei Pan so deceives mainland Chinese party media, I am nonetheless amazed by this guy being such a fighter jet among the deadbeats, which goes to show again that my articles criticizing Pan are not accurate but current. My dear Miaofei Pan, what kind of eyesight do you have? Where are all the crowds that you say there are? Are you betting on the reporters from official mainland Chinese media being unable to make it to Vancouver? Or that the officials at the mainland's agency charged with promoting overseas Chinese affairs

have no time to come to Vancouver for a field investigation? It is in fact your deadbeat behavior that provoked indignation among old and new immigrants but you had the reporter take the hint and write that these articles critical of you provoked indignation among many Chinese and overseas Chinese. My fellow countrymen, how unbearably pathetic! Flat out lying through his teeth - for leader Miaofei Pan to so deceive the mainland Chinese party and government is highly risky! I'd ask leader Pan meekly, would you have the confidence and strength to have the "brown-nosing" articles written following your hint run by the Chinese language media in Vancouver? Have you the cheek to distribute and broadcast them all over Vancouver? Isn't it just an effort at "disinfection" in mainland China only?

44. In their natural and ordinary meaning, or in the alternative, by way of innuendo, the words set out in paragraph 43 meant or were understood to mean: a. Mr. Pan has deceived the media; b. Mr. Pan has lied to and deceived the government of China; and c. Mr. Pan's conduct has been negative such that it has provoked indignation amongst Chinese immigrants in Canada. [Emphasis added.] [69] The trial judge viewed the imputed statement at subpara. 44(a) as directed more to the "gullibility or malleable nature" of the Chinese media than to the plaintiff. Even if the statement was an accusation against him, moreover, she did not regard it, or the imputed statement at subpara. 44(b), as defamatory. She took judicial notice that: the Chinese media is controlled, heavily supervised and censored by the Chinese government. I do not think right-thinking and thoughtful Canadians would lower their estimation of a person who lied to the Chinese media, because the Chinese media is not understood to be a "free press". I was presented with no evidence to suggest that people who consume that Chinese media might perceive that accusation differently. I am not satisfied that the Impugned Statement is defamatory. The meaning identified at para. 44(b) is conveyed once in the Impugned Statements of Article Nine. The defendant wrote that the plaintiff was "flat out lying through his teeth" and then

suggested that to "so deceive the mainland Chinese party and government is highly risky!" The accusation of lying is related to the defendant's assertion that the plaintiff had manipulated Chinese media to report that many in China and overseas were outraged by the defendant's accusations. Thus, the alleged deception is how the plaintiff apparently managed to have himself portrayed in certain Chinese media articles. One must remember in this context the Chinese media, Chinese "Party" and government are all state controlled. Reading this Article as a whole, it is clear that the accusation that the "government of China" has been deceived in this instance is a reference to Chinese state media. As I explain in the preceding paragraphs, I do not find an accusation that a person deceives the Chinese media to be defamatory, and I adopt that reasoning here. [At para. 363-4; emphasis added.] [70] The reference at subpara. 44(c) -- "negative conduct" not approved of by Chinese immigrants in Canada -- was not seen as defamatory because it was "imprecise" and would in the Court's view be taken at most as a reference to the defendant's assertion that Mr. Pan had deceived the "Chinese state media". (At para. 365.) In the end, the judge found that nothing in the Ninth Article conveyed a defamatory meaning. [71] Having so concluded, she found it unnecessary to consider whether, in the

alternative, the imputed meanings at subparas. 17(b) (see para. 233 of the reasons) and 44(a) and (b) of the NOCC were subject to any of the possible defences. On Appeal [72] In this court, Mr. Pan submits that there was no evidentiary basis for the trial judge's 'assumption', and that it was not appropriate to take judicial notice, that "Canadians harbour doubts about whether the Chinese government treats its citizens fairly with regard to taxation." (At para. 211.) Mr. Pan emphasizes that the trial judge did find it was defamatory for the defendant to state, as he did in the Eighth Article, that Mr. Pan owed millions of yuan under court orders in China and therefore had his name on a "List of the Dishonoured." (See para. 430.) [73] Mr. Gao responds that it cannot be said the trial judge's findings were clearly and palpably wrong. At the end of the day, he says, the trial judge found Mr. Pan's reputation had not been adversely affected by Mr. Gao's Articles. Indeed, the two witnesses called by Mr. Pan to prove his damages told the Court that his reputation had not lowered their view of him. Finally, the defence contends that Mr. Pan's appeal is simply an invitation to this court to re-weigh the evidence -- something we may not do. [74] I acknowledge that the trial judge's findings that the impugned statements were not defamatory were findings of fact. (As mentioned earlier,

the judge had already indicated at para. 150 that unless otherwise stated, all the impugned statements in the Articles were capable of having a defamatory meaning as a matter of law.) In my view, however, the plaintiff is correct in his contention that there was no evidentiary basis for the finding of how ordinary or right-thinking people regard the taxation system of China. Indeed, I would expect that most members of the public have no idea of the workings of that system. This is the kind of issue on which evidence is necessary, not least in order to ensure that stereotypical reasoning about another society and its government is avoided. Certainly the matter is not "clearly uncontroversial or beyond reasonable dispute". Thus it was incorrect to take judicial notice of how the Chinese tax system is regarded by ordinary people in this country. [75] Further, I agree with the plaintiff that even if one were satisfied that ordinary Canadians regard the Chinese tax system as unfair, they would nevertheless take the view that a person who has left (at one point, Mr. Gao said Mr. Pan had "fled") China leaving a large tax bill is less law-abiding or trustworthy than he would otherwise be regarded. This would be especially so where the person is enjoying a "wealthy" lifestyle in Canada: it will be recalled that Mr. Gao's First Article had asserted that "living in luxury mansions without

paying taxes while collecting benefits" was a longstanding "illness" in "some wealthy families in the Chinese community" that was "abhorred by all Chinese". (See para. 156.) Mr. Gao himself stated that Mr. Pan's "deadbeat" behaviour had "provoked indignation among old and new immigrants". [76] Similar reasoning applies to the assertion in the Ninth Article that Mr. Pan deceived "mainland Chinese party media" by "flat out lying through his teeth". This is a clear allegation of dishonesty. (See paras. 101-2, infra.) Had a similar allegation been made about deceiving Canadian media, it would likely be regarded as defamatory. There was no evidence that ordinary Canadians would take a different view of allegations that Chinese media had been lied to or deceived. (See paras. 363-4.) [77] I conclude, then, that the trial judge erred in taking judicial notice as she did at paras. 211 and 363 of her reasons; and that she was clearly and palpably wrong in ruling that the subject statements were not defamatory of the plaintiff. "Criminal Activity" [78] In the Second Article, following the assertion that Mr. Pan and his wife owed some 41,952,000 yuan, or 8.3 million CAD, in taxes in China, Mr. Gao wrote: According to informed sources, these amounts were declared by Miaofei Pan himself, and involved a half-baked building construction project called Huachen Yipin in Cangnan County. People

say the project defrauded hundreds of local homebuyers. The entire project was constructed [by] Zhejiang Lingyang Real Estate Company in which Miaofei Pan held a controlling interest while the frontline person-in-charge was Zufan Zheng, a partner of Pan. From what we've learned so far, Zheng has been detained by police. [Emphasis added.] [79] Mr. Pan pleaded at subparas. 17(c) and (d) of the NOCC that the imputed meanings of these assertions were that: c. Mr. Pan's business project caused hundreds of purchasers to lose their money; and d. Mr. Pan was in business partnership with an individual suspected of criminal activity. [80] Mr. Pan testified that he had owned the shares of a company that had had two large construction projects in Cangnan County, but that he had sold those shares to a Mr. Zheng in 2006 when Mr. Pan was approved to emigrate to Canada. He testified that after that, he had "no involvement" in the business of the company, although the share transfer had not been registered with the relevant authority, because of the transfer tax Mr. Zheng did not want to pay. Mr. Pan acknowledged having heard that Mr. Zheng had been detained by Chinese authorities in 2015 after the projects failed and that "a lot of housing buyers" lost their money. He said Mr. Zheng had never been his "underling" or "business partner." In cross-examination, Mr. Pan acknowledged he had lent

money to Mr. Zheng personally but had been fully repaid. [81] At para. 212 of her reasons, the trial judge found that the meaning in subpara. 17(c) was defamatory. In her words, "The Articles suggest the plaintiff's business was responsible for a project that harmed hundreds of people." However, she disagreed that the imputed meaning in subpara. 17(d) was conveyed by the words used. She again took judicial notice, this time about the meaning of the word "criminal" in China: Nowhere in the Impugned Statement is the word "criminal" used. Nor am I satisfied that being detained by the Chinese authorities would equate in the minds of reasonable Canadians with that person necessarily being a "criminal". It is reasonable to assume that Canadians would immediately question whether the detention was lawful, legitimate or fair according to the Canadian standard of detention for alleged criminality. I also find it to be a notorious fact of which I take judicial notice that the breadth of behaviour caught by the Chinese government's perception of "criminal" is far wider than that in Canada, and captures behaviours that in Canada would never fall into that category. [At para. 214; emphasis added.] [82] Again, it seems to me that the trial judge erred in making the 'assumption' she did about Canadians' views of the Chinese legal system and in taking judicial notice about the scope of

behaviour perceived as "criminal" by the government of China. In fact, fraud is also a criminal offence in Canada: see s. 380 of the Criminal Code, R.S.C. 1970, c. C-34 and offenders or suspects can be "detained" in Canada on that charge, subject to bail provisions. Read in context, the term "criminal activity" may be taken here to refer to the 'defrauding' of "hundreds of purchasers and causing them to lose their money", which accusation was found to be defamatory. (See also the Fourth Article and subpara. 26(d) of the NOCC.) Little was added by the "criminal" label, but in my view the judge's assumptions about the Chinese criminal law system and how it is perceived by ordinary people did require an evidentiary foundation. [83] I conclude, with respect, that the trial judge erred in taking judicial notice as she did, and in finding as a result that the imputed statement at subpara. 17(d) of the NOCC was not defamatory. 'Stifling Legitimate Criticism by Litigation' [84] Finally under this rubric, Mr. Pan contends that the trial judge's unsupported views about China also led her into error in finding that certain statements in the Sixth Article were not defamatory. They were as follows: I will continue to disclose all the improper conduct of Mr. [Miaofei] Pan as a "Chinese community leader". The same rule still applies: I will respond to each legal document by writing 3

articles. Thirdly, as Pan launched the lawsuit, before he withdraws his claim I will not stop writing Articles to expose [him]. Fourthly, I encourage Mr. Pan to take the litigation to the very end. Better yet, all the way to the federal Supreme Court of Canada, so that the entire Chinese community and the Canadian society will all be able to see how a problematic mogul became a problematic leader of the Chinese community, leaving a huge negative impact on the Chinese community in China. Meanwhile the force behind him that he has relied upon will feel the shake. [Miaofei] Pan has always had an illusion, no matter how much he has been bombarded by the Canadian main stream media, no single Chinese media outlet dares to do anything to him. This is not because these Chinese media outlets want to get his business of advertising, but rather they are afraid of getting sucked into a lengthy litigation process that could tire them out in the end. Unfortunately, man proposes, God disposes. Who would have known - a new media outlet "Broadcasted by He Bian Huang - Vancouver Public Account," appeared and provided him with a few medicinal eye drops. He immediately became agitated, brandishing his "weapon of law"; furthermore, he wants to create a certain level of uncertainty for the person who speaks up in defence of justice, and tries to force him into a make-belief trap of "astronomical

amount of compensation." This is clearly self-destruction by raking up your own faults, inviting humiliation to yourself and revealing your own defects This is called [Miaofei] Pan style of self-destruction in 3 ways with a guarantee. [At para. 300; emphasis added.] [85] At para. 33 of the NOCC, Mr. Pan pleaded the following imputed meanings: a) the plaintiff has engaged in improper conduct; b) the plaintiff is a problematic person and has caused a negative impact on the Chinese community; c) the plaintiff has caused local Chinese language media outlets to fear criticizing him because of the threat of unjust litigation by the plaintiff, and; d) the plaintiff has commenced this action in order to force the defendant to pay compensation to him. [86] In her analysis at paras. 302-311, the trial judge found there was "insufficient context" to "imbibe" the phrase "improper conduct" with any meaning that could be defamatory. With respect to "problematic", she reasoned: Nor do I find labelling someone a "problematic" person to be defamatory. "Problematic" simply means presenting a problem; a problem can either be something that needs to be fixed, or a situation inviting further investigation. The rest of the asserted meaning in para. 33(b) is that the plaintiff has negatively impacted "the Chinese Community in China". For the reasons I have already identified earlier in this judgment

(See paras. 98, 211 and 214). I do not find right-thinking Canadians equate negatively impacting what people in China think of a person with the lowering of that person's reputation. Moreover, those statements must be read in context. The defendant encouraged the plaintiff to "take the litigation to the very end" so that the "entire Chinese community and Canadian society will be able to see how a problematic mogul became a problematic leader of the Chinese community, leaving a huge negative impact on the Chinese Community in China". The meaning is that the negative impact caused by the "problematic" actions of the plaintiff will be revealed in the litigation. I do not find that prediction defamatory of the plaintiff. Accordingly, I lean toward a conclusion that neither meaning pled at para. 33(a) and (b) is capable of being defamatory, at law. However, I acknowledge the distinction between what is defamatory as a matter of law versus as a question of fact is not a determination vital in a judge-alone trial: Mainstream at paras. 14-15. Accordingly, I also conclude for the same reasons, as a matter of fact, Article Six's accusation that the plaintiff's undefined improper conduct will be revealed in future is not defamatory. I also find as a fact that calling someone "problematic" in a way that causes people in China to think negatively of you, is not defamatory. [At paras. 305-7;

emphasis added.] [87] Mr. Pan argues that the trial judge erred in finding that a person's reputation would not be diminished by an allegation that he or she commenced litigation without a legitimate purpose or in order to create "a certain level of uncertainty" for a person who "speaks up in defence of justice." He describes as nonsensical (which I will equate with 'clearly and palpably wrong') the notion that it is not defamatory to accuse a person of using the law "as a tool to stifle legitimate criticism". On this point, counsel referred us to Wilson v. Switlo 2011 BCSC 1287, aff'd 2013 BCCA 471. In that instance, the defendant had alleged, inter alia, that the action was a "strategic lawsuit against public participation, or "SLAPP" lawsuit brought for the "improper and dishonest purpose of stifling truthful speech by the defendants". The trial judge ruled that the statements imputed "unfairness, intimidation, repressiveness, and the notion that the plaintiff's claims were brought for the improper purpose of silencing the defendants. All of this would tend to lower the reputation of the individual plaintiffs." (At para. 281.) This court dismissed an appeal, which was taken on other points. [88] The statements with which we are concerned in the case at bar are much less extreme than those in Wilson, and the word "problematic" does not strike me as necessarily defamatory in

the eyes of an ordinary right-thinking Canadian. The second paragraph quoted above at para. 84 is a criticism of Chinese media outlets, rather than a criticism of Mr. Pan. As for wanting to create "a certain level of uncertainty for the person who speaks up in defence of justice", the question of whether a litigant's position represents the cause of justice or has a "legitimate purpose" is something on which, as the trial judge observed, reasonable people may disagree. Further, the notion that a litigant wishes to create some "uncertainty" for his or her opponent suggests nothing unusual in modern litigation and in my view would not diminish a litigant's reputation. [89] On the whole, I am not persuaded the trial judge made a clear and palpable error in finding that the subject comments in the Sixth Article did not defame the plaintiff. Fair Comment [90] The final ground of appeal relates to the applicability of the defence of fair comment to the Seventh Article. The basic components of this defence are well-known and were set out in WIC Radio Ltd. v. Simpson 2008 SCC 40. Binnie J. for the majority quoted with approval from the dissenting reasons of Mr. Justice Dickson, as he then was, in Cherneskey v. Armadale Publishers Ltd. [1979] 1 S.C.R. 1067: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can

include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any man honestly express that opinion on the proved facts? (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. [Emphasis by underlining added; at 1099-1100.] [91] Prior to WIC, the fourth component, "honest belief", had been the subject of judicial discussion and debate: see paras. 35-51 of WIC and the division of opinion in Chernesky. The Court in WIC settled on framing the question as "whether anyone could honestly have expressed the defamatory comment on the proven facts." This was said to represent an appropriate balance between free expression on matters of public interest and the protection of reputation against damage that "exceeds what is required to fulfill free expression requirements." (At para. 49.) Any movement towards adding (or retaining) a qualitative standard to the 'honest belief' requirement, such as requiring that the honest person also be "fair-minded", was discouraged; in Binnie J.'s words: "Fair-mindedness" often lies in the eyes of the beholder. Political partisans are constantly astonished at the sheer "unfairness" of criticisms made by their opponents. Trenchant criticism which otherwise meets the "honest belief" criterion

ought not to be actionable because, in the opinion of a court, it crosses some ill-defined line of "fair-mindedness". The trier of fact is not required to assess whether the comment is a reasonable and proportional response to the stated or understood facts. [At para. 28.] At the same time, the fourth component of fair comment approved in WIC did refer to an "objective test", although without specific comment. (See also Grant v. Torstar at para. 31; Linden and Feldthusen, Canadian Tort Law (11th ed., 2018) at 787-90.) [92] The portions of the Seventh Article on which the plaintiff relies on appeal were stated as follows in the NOCC: A dignified former executive chairman, a current honourary chairman of the Canadian Alliance of Chinese Associations after spending a few hundred thousand dollars on a title of "Chinese community leader" ran unworthily running [sic] between China and Canada for many years. With him being a tall-tale teller and overly ostentatious, all kinds of his past misdeeds as a "seasoned liar" were revealed after being heavily reported by Chinese and overseas media for having spent money and taken the Prime Minister of Canada to his house for some fish balls. Miaofei Pan, however, only sent lawyer's letters to the westerners' media outlets, but to a Chinese media person such as me, old Huang, who knows every detail of his scandalous conduct he brought on a

"legal action." Miaofei Pan surely treats Chinese and Westerners differently! This is an outright abuse of legal proceedings! Miaofei Pan clearly knows his likelihood of winning the case is close to zero, yet he plays a game such as this one, bringing disgrace to leaders of the Chinese community overseas. I am going to distribute the "abusive Notice of Claim" all over the place these days, inviting Chinese people inside and outside China and western media to take a look. Spreading the word of your private scandals is particularly effective to people like you. Do you have the guts to take the highest court of mainland China, the Public Security bureau and the People's government of Cangnan county to the court? I guess you don't even dare think about it. You just figured that I, old Huang, a middle-to-senior aged literature worker with no money, no social status and no "official position", am vulnerable for you to take advantage of, right? Everybody rest assured, the hideous character of the type of Chinese community leaders such as Miaofei Pan will be revealed without mercy throughout the whole litigation process. The whole process will be turned into a written record and distributed to those official organizations where Miaofei Pan, the leader of the Chinese community, once served, for instance, the National Overseas Chinese Office, the Overseas Chinese Committee of the

National Congress, the Overseas Chinese Associations of Heilongjiang province, Beijing, Jinan city and Zhejiang province. Of course, there is also the Vancouver Chinese Consulate Let Miaofei Pan pay dearly for his abusive use of the litigation process. We will also let the Chinese in Vancouver and all those Chinese overseas take a look at the "multiple-faceted" life of this former executive chairman [Emphasis added.] [93] Mr. Pan pleaded at para. 37 of the NOCC that in their natural meaning, or alternatively by way of innuendo, these statements meant or would be understood to mean that: a) Mr. Pan is a "seasoned liar"; b) Mr. Pan treats Chinese people worse than he treats Western people; c) By commencing in prosecuting this action, Mr. Pan has abused and is abusing the legal process; d) By commencing this action, Mr. Pan has brought disgrace to overseas Chinese community leaders; and e) Mr. Pan is a hideous character. [94] The trial judge dealt with the Seventh Article at paras. 318-335 of her reasons. She ruled that the meanings set forth at subparas. 37(b) and (d) of the pleading were not the meanings conveyed by the words used. (See paras. 320 and 322.) On the other hand, the imputed statements at subparas. 37(a), (c) and (e) of the NOCC were said to be defamatory. (See paras. 319 and 321.) However, the judge said, none of the statements in this Article was capable of proof

because each was a matter of subjective opinion. With respect to the phrase "seasoned liar" in particular, she reasoned: Whether someone is a "seasoned liar" is not simply an accusation that the person lied; it is an assessment that a person has lied and has become adapt at lying. It is a comment about a person's character. Similarly, whether someone is hideous is clearly a subjective opinion. [At para. 323; emphasis added.] The defence of truth could therefore not apply. [95] Turning to the defence of fair comment, the trial judge found that the main subject of the Seventh Article -- i.e., the commencement of this proceeding -- was a matter of public interest and that the "seasoned liar" and "hideous character" statements were "clearly commentary," reflecting opinions held by Mr. Gao about Mr. Pan's character. (At para. 327.) These descriptions had, she noted, been mentioned in the paragraphs in which the defendant had referred to reports in Chinese and overseas media that the plaintiff "spent money and [took] the Prime Minister of Canada to his house for some fish balls". She continued: Reading the Article as a whole, the defendant is saying that the hosting of the Prime Minister was widely reported in the Chinese and Canadian media, and that reporting revealed "all kinds of his past misdeeds as a 'seasoned liar'". Article Seven thus states it was the reporting in other media

which exposed the plaintiff to be a "seasoned liar". That description follows the identification of the plaintiff as a "dignified former executive chairman, a current honourary chairman of the Canadian Alliance". In my view, reasonable readers would understand that the accusation that the plaintiff had been revealed in other reports of [sic-as?] being a seasoned liar is an inference drawn by the defendant, and I find there is a factual basis for the inference. The plaintiff was correctly identified as former executive and now honourary chairman of the Alliance, he did host the Prime Minister at his home and the event was reported in the Chinese and Canadian media. [At paras. 328-30; emphasis added.] [96] As for the "hideous character" comment, it had been made in relation to Mr. Pan's being "a type of Chinese community leader", which was contrasted with Mr. Gao's description of himself as "middle-aged and having elderly members and young children to take care of in family". In the judge's analysis: Reading Article Seven as a whole, the comment is also reflected more generally of the defendant's belief that the law suit has no merit. It also reflects the defendant's identification of the amount of support he has received from the community in response to being sued. In a nutshell, the defendant's charge is the plaintiff is "hideous" for launching a law suit against the defendant

given their vastly different social standing, and the wide support the defendant claims to have for defending himself against a law suit he believes will fail. I find there is a factual basis for the claim as pled at para. 37(e). [At para. 332; emphasis added.] [97] Similarly, the judge wrote, the accusation described in subpara. 37(c) of the NOCC that the plaintiff was "abusing the legal system" was based on the facts that the plaintiff had sued the defendant and commenced this proceeding, but had not sued the Globe and Mail, which had "made some comments and drew some inferences not too dissimilar with the defendant's". That "different treatment", she said, was a fact on which Mr. Gao's comment that the plaintiff was "abusing the legal system" was based. (At para. 331.) Counsel for the plaintiff did not challenge this comparison, but I would have expected a marked difference could have been shown between what the Globe reported, and the contents of Mr. Gao's Articles. [98] Overall, the comments in the Seventh Article were also found to be inferences drawn from "facts truly stated". Again in the trial judge's words: I do find the comments are inferences drawn from facts truly stated. As noted above, the seasoned liar and hideous comment is an inference based on a number of true facts. The plaintiff was correctly identified as a former executive, and current honourary chairman

of the Alliance. The plaintiff did host a dinner, which Prime Minister Trudeau attended. That dinner was reported in Chinese media, and in the Globe and Mail. The opening paragraph of the latter described that (and other) dinners as an "an under-the-radar strategy" used to raise large sums of money by providing wealthy Chinese Canadians with "intimate face-time with the Prime Minister that can be used as business currency at home and in China". The Globe and Mail article was admitted into evidence, but not for the truth of its content, but the plaintiff testified the dinner was a fund-raiser for the Liberal Party of Canada and the attendees (including Prime Minister Trudeau) were his "friends". The defendant's inference of the plaintiff being a seasoned liar and hideous relies on the contrast between his "community leader" public image with his hosting of a political fundraiser. The comment about the law suit being an abuse of legal process is based on true facts: the law suit was commenced against the defendant; the plaintiff did not sue other media organizations that critically reported on the plaintiff's hosting of the Prime Minister; there is a significant difference in the plaintiff's and defendant's wealthy and social standing. [At paras. 333-34; emphasis added.] [99] Finally, applying the "honest belief" criterion, the judge found that "reasonable people" could honestly

express the opinions pleaded in subparas. 37(a), (c) and (e). In her words: The test is not that people would have to agree, but that objectively speaking it is reasonable that a person could make the same comment based on the facts upon which the comments are made. Although I think this is close to the line, I agree a person could honestly express the view that the plaintiff was a "seasoned liar" because of the contrast of his public image for years as a community leader, juxtaposed against the reporting of his hosting a political fundraiser for the benefit of wealthy friends. The phrase "hideous character" has a wide range and I find it certainly includes someone who sues a lone person of modest means for reporting on events also reported by large media organizations, which are not sued. These same circumstances are also a basis upon which someone could honestly believe the law suit is "abusive". [At para. 335; emphasis added.] On Appeal [100] In this court, Mr. Pan challenges the trial judge's findings that the fair comment defence applied to the "seasoned liar" and "hideous character" statements and to the assertion that this proceeding was "abusive." All three charges were tied to the fact that the plaintiff was both a "Chinese community leader" and had hosted the Prime Minister at his home. The plaintiff submits that the Court's finding of a "contrast" or inconsistency

between these activities is "nonsensical"; that the finding that someone who sues "a lone person of modest means" but refrains from suing a large media organization for the same transgression could be regarded as a "hideous character" is unreasonable; and that the notion that this proceeding could "reasonably flow" from this "inconsistency" is similarly unreasonable. The test, however, is not whether the impugned comments were "reasonable", but whether the four components of the defence of fair comment were made out. Opinion vs. Fact [101] Before turning to fair comment specifically, however, I must disagree with the notion that calling someone a "seasoned liar" is not a statement of fact capable of proof and is not defamatory. The editors of Halsbury's Laws of England (4th ed., 1979) cite the venerable decision of Lord Mansfield in Thorley v. Lord Kerry (1812) 4 Taunt 355 to illustrate that accusing a plaintiff with (inter alia) falsehood is actionable. (At 364.) I have no doubt that the disparaging nature of "liar" continues today. In Brown on Defamation, the author writes: Truthfulness has been said to be one of the most fundamental of basic human virtues. Therefore, it generally is defamatory to suggest that someone is less than truthful or has lied, and this is particularly so where it is said that the plaintiff has lied in the course of his or her business. Thus to say

that someone employs statements that do not correspond with the facts, or is an out-and-out liar, is defamatory, or that he or she is a cheap, common, grand, pathological, or unscrupulous liar, or a liar and a poltroon, or a liar and a prevaricator, or the biggest liar in a particular location, although no doubt much depends on the context and circumstances against which it is said. [At 4-590 to 4-592; emphasis added.] [102] Linden and Feldthusen (9th ed., 2011), write at 758 that "calling someone a 'liar' is actionable", citing Romano v. D'Onofrio [2005] 77 O.R. (3d) 583 (C.A.). The authors also refer to a well-known decision of Chief Justice Wilson in Murphy v. LaMarsh (1970) 73 W.W.R. 114 (B.C.S.C.), aff'd. [1971] 2 W.W.R. 197 (B.C.C.A.). In the course of his reasons for finding that the defendant's statement that the plaintiff, a political reporter based in Ottawa, was "heartily detested by most of the Press Gallery and the members of the House", the Chief Justice said this: Ordinarily a libel is more specific than the one alleged here. A shameful action is attributed to a man (he stole my purse), a shameful character (he is dishonest), a shameful course of action (he lives off the avails of prostitution), a shameful condition (he has the pox). Such words are considered defamatory because they tend to bring the man named, according to the classic definition, into hatred,

contempt or ridicule No wrong or evil is directly attributed to Mr. Murphy, but it is said of him that most men who have most to do with him and his occupation heartily detest him. I have no doubt that the ordinary reader, who is not perhaps inclined to such an analysis of words as I have here attempted would, after reading this, think "There must be something wrong or bad about this man Murphy to make people detest." Since I think this is the test to be applied, I think the words are defamatory. The effect is the same as would have resulted if it had been said, "He bears a bad reputation amongst his associates." [At 118-9.] In my view, calling someone a "seasoned liar" connotes both a "shameful character" and "shameful action" or conduct on his or her part, and is likely to bring one into disrepute or 'disesteem' in the eyes of ordinary members of society. [103] Does the defence of truth apply to the description of the plaintiff as a "seasoned liar"? In my view, the defence of justification cannot be made out on the basis of the "contrast" between his public image as a community leader and the fact he hosted a political fundraiser. Looking at the context of the statement, no lie or untruthfulness is demonstrated in the reporting of the fundraiser held by Mr. Pan. As this court stated in upholding the trial judgment in Murphy, this is a "gratuitous, defamatory observation

serving no purpose in the context that contains it." (At 201.) Even apart from context, moreover, we were not referred to any evidence of lies told by Mr. Pan, much less habitual lies. [104] Given my view that "seasoned liar" is a statement of fact, I need not consider the defence of fair comment in connection therewith. Fair Comment [105] With respect to the phrase "hideous character", the second and fourth criteria of fair comment do arise for consideration. Is the statement "based on fact" or "proved facts", and could anyone honestly express the opinion on those facts? Neither of these is a high bar. In WIC, it was said that in order to have a "basis" in the facts, the comment need not be "supported by the facts" read strictly. Binnie J. continued: "Honest belief", of course, requires the existence of a nexus or relationship between the comment and the underlying facts. Dickson J. himself stated the test in Cherneskey as "could any man honestly express that opinion on the proven facts" His various characterizations of "any man" show the intended broadness of the test, i.e. "however prejudiced he may be, however exaggerated or obstinate his views" Dickson J. also agreed with the comment in an earlier case that the operative concept was "honest" rather than "'fair' lest some suggestion of reasonableness instead of honesty should be read in". [At para. 40; emphasis

added.] [106] The 'honest belief' test is, as seen above, intended to strike a balance between free expression on matters of public interest and the appropriate protection of reputation. The majority in WIC quoted with approval the following passage from Channel Seven Adelaide Pty. Ltd. v. Manock [2007] HCA 60: The protection from actionability which the common law gives to fair and honest comment on matters of public interest is an important aspect of freedom of speech. In this context, "fair" does not mean objectively reasonable. The defence protects obstinate, or foolish, or offensive statements of opinion, or inference, or judgment, provided certain conditions are satisfied. The word "fair" refers to limits to what any honest person, however opinionated or prejudiced, would express upon the basis of the relevant facts. [At para. 3; emphasis added.] [107] With admonitions of this kind in mind, I conclude that although the "hideous character" comment comes close to the line in terms of both the second and fourth criteria of fair comment, the wide scope given to free expression, even on the part of "opinionated or prejudiced" persons, does protect the "hideous character" statement. I find that a reasonable nexus exists between the comment and the underlying "contrast" described by the trial judge, and that objectively speaking, it is possible a person could honestly express

that opinion on the basis of the facts described in the Seventh Article. [108] I reach the same conclusion concerning the charge that Mr. Pan was making "abusive use of the litigation process" in commencing this proceeding. Assessment of Damages [109] As mentioned above, the trial judge found that the plaintiff had proven that only two of Mr. Gao's Articles contained defamatory statements to which no defence was applicable. She also ruled that the plaintiff had not established that his reputation as a community leader had been damaged by the defamatory statements she had found. He had not been asked to resign any position on any community organization and even after he chose to resign as president of the Wenzhou Society, was urged to remain on as "honorary" president. Nor had his two witnesses, Mr. Liang and Ms. Chen, ultimately believed the defendant's statements, although (the trial judge acknowledged) they may have had some temporary doubts. She therefore concluded that he had failed to adduce sufficient evidence to warrant a substantial award of damages. [110] Mr. Pan had also sought damages for psychological suffering. He testified that he experienced difficulties such as insomnia, stress and anxiety as a result of Mr. Gao's Articles. He said he began to think of what had happened during the Cultural Revolution in China to people who displeased the authorities -- including

"so many professors [who] died in bathrooms." He began to wonder "who did I offend? Why would someone fabricate these things?" [111] The judge found it was at least equally probable that this personal stress had been caused by the allegation he had claimed the CTB, which she had concluded was true. She cited the adverse inference she had drawn -- that Mr. Pan had received the benefit -- as another reason to deny substantial damages: Secondly, 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 lightly. His evasiveness with this Court on that issue is deserving of rebuke, and I decline to award him substantial damages on that basis. [At para. 448.] This and other factors, together with the plaintiff's failure to produce his tax returns prior to trial, led the judge to conclude: Anchoring all of these concerns is my serious concern 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. [At paras. 451-52.] Disposition [112] The plaintiff submits that the assessment of damages at $1 cannot stand and that either an assessment of damages or a new trial in the court below is required. I agree with the plaintiff that if at all possible, a re-trial of this long and complicated matter should be avoided; but given my findings, the issue of damages must be revisited. In addition, it must be determined whether the (defamatory) statements described at subparas. 17(b) and 44(a) and (b) of the NOCC are subject to any of the available defences. [113] I would allow Mr. Pan's appeal, set aside the damage award of $1 and remit that question to the court below. To the extent that any of the statements described at subparas. 17(b) or 44(a) or (b) is not found to be protected by a defence, damages therefor would be determinable by the court below; together with damages for the statements found by the trial judge to be defamatory (see para. 430 of her reasons) and for the statements I have found to be defamatory on appeal. For clarity, I confirm that these were the following: Statement Article

NOCC References Plaintiff claimed and/or received CTB and misrepresented his income to do so, thus evading Canadian taxes First Second -- 13(b) 17(a) Fourth 26(a) Plaintiff failed to pay Chinese taxes owing by him First 13(b) Plaintiff in partnership with a person suspected of criminal activity Second 17(d) Plaintiff is a "seasoned liar" Seventh 37(a) The Schedules to the order of the court below should also be amended by this court's order to the extent necessary in light of these reasons. "The Honourable Madam Justice Newbury" I AGREE: "The Honourable Madam Justice Dickson" I AGREE: "The Honourable Mr. Justice Butler"