Court finds signs posted on Mission, B.C., building defamed former city councillor

A City of Mission welcome sign is seen in this image from the city's website (mission.ca)

A dispute between neighbours that escalated to opposing defamation lawsuits has resulted in a $5,000 judgment in favour of a former Mission, B.C., city councillor and his wife.

B.C. Supreme Court Justice Ardith Walkem found that several of the statements posted on signs attached to the front of Jennifer Lee and William Coulson's building in August 2017 were defamatory of Nelson and Sandy Tilbury.

In her 54-page decision issued last week, the judge goes into great detail on the history of conflict between the parties, noting that it began with a disagreement about a canopy overhang between the two properties and "escalated and evolved quickly." 

THE BACKGROUND

According to the decision, Lee and Coulson purchased a commercial property on First Avenue in Mission in 2011 and were renovating it in early 2015 when the Tilburys purchased the building next door to serve as an office for their real estate business.

Walkem describes the initial meeting between the new neighbours as "cordial," and notes that during that meeting – or shortly thereafter – Lee broached the subject of the canopy on the front of the Tilbury building, which encroached onto her property.

The Tilburys agreed to look into the issue, according to the decision. Nelson Tilbury also suggested that he might be able to help Lee and Coulson navigate the city's approval process for renovations, because of his experience as a former city councillor and former city employee.

"Several weeks" after the initial meeting, the Tilburys received a letter from a lawyer representing Lee and Coulson. Walkem summarizes the letter as suggesting that the Tilburys either purchase Lee and Coulson's property for $800,000, sell their own property to Lee and Coulson for $150,000 or purchase an easement for the overhang for $20,000.

"The Tilburys say they were shocked to receive the easement demand letter, and viewed it as a form of extortion or shake-down," the judge writes in her decision.

"The easement demand letter was the catalyst for the rapid disintegration of the relationship between the parties."

CAMERAS, FENCING AND GUTTERS

Over the ensuing several years, each side in the dispute took escalating actions that were either deliberately aimed at provoking the other, or were perceived as such, as described in Walkem's decision.

Lee and Coulson installed a security camera in March 2015 that the Tilburys felt was aimed at their back deck. The decision notes that the Tilbury building extended only part of the way to the back of its lot, with a parking lot on the unused space behind it. The Lee-Coulson other building took up the entire depth of its lot.

In September 2016, the Tilburys fenced in their back parking lot, which had the effect of "restricting access to the west side of the Lee-Coulson property," Walkem writes.

One day during the fencing work, Lee entered the Tilbury office. Sandy Tilbury told the court that Lee was "yelling," "screaming" and refusing to leave.

"A third party called the police," the decision reads. "Ms. Lee did not leave until the police arrived."

Around the same time, the Tilburys also added a canopy on their back deck, removing downspouts and gutters from the Lee-Coulson building during the process.

"Though some downspouts/gutters were reattached, they were not properly put back," Walkem's decision reads. "The Lee-Coulson building was damaged due to water ingress as a result. This became the subject of other litigation between the parties."

The decision also notes efforts by the Tilburys to disable the security cameras on the Lee-Coulson building later that fall.

"These efforts included covering the cameras with duct tape, caution tape, a tarp, and repeatedly smearing peanut butter on the cameras," Walkem writes.

THE 'EXPOSURE INCIDENT'

"The interactions between the parties became increasingly tense and culminated in early August 2017," the decision reads.

On Aug. 6, Lee parked on Railway Avenue behind the buildings to await police, who she had called about the disabled security cameras. The Tilburys were also present, working in their parking lot, and the decision indicates that "each party commenced filming the other."

A heated exchange ensued, ending with the Tilburys deciding to call police in response to Lee's stated intention to wait for police to respond to her call, which they perceived as harassment.

"If she thinks she’s just gonna sit there all day and f***ing harass us, she’s got another (thing) coming," Nelson Tilbury said in a recording of the incident transcribed for the court and included in Walkem's decision.

A 911 call-taker would not dispatch police in response to the Tilburys' call, directing them to call the RCMP non-emergency line instead, according to the decision.

"Later that same day, Ms. Lee and Mr. Coulson were moving their security cameras at the request of the RCMP, and noticed a security camera on the roof of the Tilbury building pointing at their building," the decision reads. "They indicated they were surprised by the siting of this camera, as the Tilburys were suing them in Chilliwack Action No. S31862 for invasion of privacy in the location of their own security cameras."

In video played for the court, the pair were recorded shouting insults at Sandy Tilbury, who was still in her parking lot with her nephew. Nelson Tilbury had left.

Tilbury directed her nephew, Sean Grey, to record Lee and Coulson on his phone. She told the court she hoped the pair might behave better if they knew they were being recorded.

"Mr. Coulson then directed Ms. Lee to lift up her shirt and expose her breasts," Walkem's decision reads. "This was an attempt to show that the Tilburys’ security camera, and Mr. Grey in the parking lot, could record people and activities inside the Lee-Coulson building."

The judge writes that Lee exposed herself twice, for two to three seconds each time, so that Coulson could get an image of her topless within sight of the Tilbury security camera.

A transcript included in the decision indicates Lee and Coulson then threatened to call the police on Grey for recording the incident, with Lee telling him: "You’re in serious trouble dude."

THE DISPLAY

Later that month, from Aug. 22 to 29, a series of posters appeared in the front window of the Lee-Coulson building.

The posters included several statements about the Tilburys and the ongoing disputes over encroachments, cameras and fencing, some of which, the Tilburys alleged in their defamation lawsuit, were libelous.

According to Walkem's decision, Lee said she intended to use the posters as an exhibit or visual aid in another court case involving the Tilburys, related to the gutter issue.

Lee also told the court that, though she wrote the content of the display, it was a student summer employee who actually posted it in the window, something Lee claimed happened without her permission.

The student was not called as a witness, and the judge notes that both Lee and Coulson were ultimately responsible for the display being placed in their window.

"Ms. Lee knew the display was up from Aug. 22 onward and did not remove it until Aug. 29," Walkem writes. "I was not convinced of her assertion that she did not either put it up herself, or direct her teenage employee to do that. Mr. Coulson testified he was unaware of the display until it had been put up, however I find this as unlikely and, in any case, he took no steps to remove the display when he became aware of it shortly after it was posted."

THE TILBURYS' DEFAMATION ALLEGATIONS

The Tilburys sued Lee, Coulson and their numbered company over the contents of the display, alleging that eight of the statements included in it were defamatory of either Nelson or Sandy.

Walkem found that five of the eight statements were defamatory, though one of the defamatory statements was justified.

Statement 1 included a picture of the former city councillor and the words "Nelson Tilbury, please STOP bullying me!"

Walkem's decision concludes that this statement could lower Tilbury's reputation in a reasonable person's eyes, but finds that Lee's defence of "justification" – essentially that the statement is true – was successful.

"There was bad behaviour on all sides of this dispute," the judge writes. "The evidence shows neighbours behaving at less than their best in the face of escalating conflict. The quid pro quo nature of the behaviour does not negate the fact that an ordinary, reasonable person could have concluded that Mr. Tilbury was behaving in a bullying manner toward Ms. Lee."

Statements 2, 3, 4, 5 and 7 all dealt with Nelson Tilbury's status as a former city councillor and the displays assertions that he has special powers or privileges in the city as a result.

The decision finds Statement 3 (that Tilbury could help Lee "get things done" with her renovation "because of his status in the city") and Statement 5 (that Tilbury "did not have to follow the façade for the theme of the city") were not defamatory.

Even in the context of the rest of the display, the words used in those two statements "would not tend to lower or injure Mr. Tilbury’s reputation in the mind of an ordinary and right-thinking person," Walkem writes.

Statement 2 ("ABOVE THE LAW?"), Statement 4 ("He said he was above the law. He seemingly is above the law."), and Statement 7 ("I am scared of the powers that you have in this city.") were defamatory, according to the decision.

"In terms of the defamatory meaning plead, Statement 2 and Statement 4 infer that Mr. Tilbury does not follow laws, is not required to follow laws, and is potentially corrupt," the decision reads. "Statement 7 alleges a willingness or ability to use political power to scare or somehow threaten others."

Walkem found no evidence that would allow Lee to succeed with a justification defence on these statements, nor was the judge able to find a "fair comment" defence available to Lee.

"To be fair comment, the statements must have a known factual foundation," the judge writes. "In this case, there is no factual basis for the statement that Mr. Tilbury received any special treatment as a result of being a former city councillor and employee of Mission. Ms. Lee herself said Mr. Tilbury never said he had any special powers within the city, nor did he say that he did not have to follow the law."

Statement 6 accused Nelson Tilbury of "physically charging" Lee on the sidewalk in February 2015 and saying that he would "get rid" of her in October 2016.

While the Tilburys argued this statement falsely suggested that the former councillor had assaulted Lee and threatened her life, Walkem's decision notes that "charging" could mean a variety of behaviours other than assault and that "get rid" could refer to the problems Lee had been causing for the Tilburys.

Finally, Statement 8, in which Lee said she forgave Sandy Tilbury for saying "bad things" about her and for recording her topless inside the Lee-Coulson building, was also considered defamatory, because it "would be understood to mean that Ms. Tilbury knowingly filmed Ms. Lee topless and without her consent," the decision reads.

On this statement, the judge found there was no defence of justification available.

"Statement 8 suggests Ms. Tilbury filmed Ms. Lee without her consent," the decision reads. "However, the facts show Ms. Lee and Mr. Coulson deliberately staged the exposure incident so that it would be recorded on the Tilburys' security camera. The security camera was not pointed at an openable window. Instead, it was pointed at a wall and plywood-covered window casing (in essence, a decommissioned window). Ms. Lee and/or Mr. Coulson had to remove the window covering to stage the exposure incident."

Statement 8 could not be considered fair comment, either, because it was not a comment about a matter of public interest, according to Walkem.

Having found four of the eight statements unjustifiably defamatory, Walkem awarded the Tilburys $5,000 in general damages, but declined to impose additional aggravated or punitive damages.

LEE'S DEFAMATION AND PRIVACY ALLEGATIONS

Around the same time that the Tilburys filed their defamation lawsuit, Lee filed her own claim alleging that the Tilburys' distribution of video of the exposure incident had defamed her and violated the Privacy Act.

Former Mission mayor Randy Hawes was also named as a defendant in Lee's lawsuit because he allegedly shared the video with City of Mission staff members.

Walkem's decision indicates that the judge had "concerns" about whether the video constituted "a statement capable of bearing a defamatory meaning."

According to the decision, Lee argued that the video implied that she was "mentally unstable and "out of control," and that she "shouldn't be taken seriously by City Hall."

While statements alleging mental instability could be defamatory, the notion that someone shouldn't be taken seriously by City Hall could not, according to Walkem.

Moreover, the judge found that the video did not make the implied statement about Lee's instability that Lee said it did.

"The facts show that Ms. Lee worked with Mr. Coulson to stage the exposure incident," the decision reads.

"In my view, the more plausible meaning a reasonable and ordinary person, fully apprised of the facts and context, would draw from watching the video is that Ms. Lee was willing to pose topless to further a dispute with her neighbour. I do not find that the video bears the defamatory meaning plead. The video of the exposure incident records, without alteration or modification, the actual actions of Ms. Lee."

On the question of Lee's privacy, Walkem was similarly skeptical.

Lee argued that the Tilburys and Hawes distributed copies of the video to city staff without her consent, in order to "embarrass her and damage her reputation," according to the decision.

The judge found that Lee did not have a reasonable expectation of privacy during the exposure incident, given that it had been staged specifically for the purpose of being recorded.

Further, Walkem was not convinced of the defendants' supposed malicious intent for sharing the recording.

"The Tilburys were aware of the video of the exposure incident since Aug. 6, 2017," the decision reads. "They did not, on the evidence before me, distribute it or share it until Aug. 22, 2017, in response to the display. I therefore do not find it was distributed out of spite or malice, but rather in an attempt to counter the suggestion that Ms. Tilbury had filmed Ms. Lee topless."

Lee's claims for defamation and invasion of privacy were dismissed, and she was ordered to pay the defendants' court costs.

Because the Tilburys were successful in their claim, Lee and Coulson were ordered to pay their court costs in that case.