Judge flushes defamation suit involving holes in septic tank

A Turtle Lake cabin owner is on the hook for court costs after a judge flushed his claim that he was defamed and suffered damages after a neighbour accused him of poking holes in her cabin’s septic tank.

The lawsuit was filed in 2015, breaking a “mutually declared truce” in a feud between James Gourlay and Marilyn Wallace, which began with an argument over tree removal in 2007.

In his decision dismissing the claim, Battleford Court of Queen’s Bench Justice Lyle Zuk concluded while Gourlay showed that Wallace uttered the defamatory statement, he failed to prove damages.

“He failed to establish any monetary loss arising from the false accusation,” Zuk wrote in his decision, which was handed down Nov. 13, just over two weeks after the two-day trial concluded.

“He has also failed to establish that the untrue allegation imputed a serious crime or that the words were uttered to disparage him in (other categories where non-financial damages are possible).” Reached by phone Monday, Gourlay said he is not planning to appeal.

According to the decision, Gourlay was the original owner of Wallace’s cabin at the Resort Village of Turtle Lake, which is about 210 kilometres northwest of Saskatoon, directly north of Battleford.

He and Wallace “peacefully coexisted” until the argument about tree removal ended the friendship. In 2015, Zuk wrote, Wallace came to believe Gourlay had reported her to health authorities, leading to a septic-tank inspection.

Wallace responded by telling a neighbour that Gourlay “likely” reported her, and “if anybody had poked holes in the septic tank it must have been a former owner, namely Mr. Gourlay,” Zuk wrote in the 27-page decision.

(Zuk accepted Gourlay’s evidence that he did not report his neighbour, but said that statement was not defamatory as it would not lower Gourlay’s “reputation in the eyes of a reasonable person.”)

“With old wounds reopened and fresh wounds opened,” Gourlay and Wallace failed to resolve their differences at a meeting, leading to the claim for damages totalling $15,000 being filed against Wallace, the decision states.

According to the decision, a person might puncture a septic tank to reduce the cost of having it pumped out periodically, and the allegation was potentially defamatory because releasing raw sewage would be seen as “despicable” and “loathsome.”

Under Canadian law, Gourlay needed to prove that Wallace’s statements were defamatory, were directed at him, were communicated to at least one other person and that he suffered financial or special damages as a result.

“I am satisfied that an allegation of putting holes in a septic tank would have the effect of lowering Mr. Gourlay’s reputation in the eyes of a reasonable person (and) the statement is not true,” the judge wrote.

While Zuk found that the statement was defamatory, he concluded that Gourlay did not provide evidence of financial loss or other damages, and that the suggestion he broke provincial environmental regulations did not impute a serious crime.

The judge went on to conclude that it was not established at trial that Wallace knew Gourlay fell within any of the categories where damages are applicable, rendering it “impossible” for her to intend to disparage him in that way, he wrote.

Gourlay said Monday that the matter is “begrudgingly” settled.