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The Second Opinion: B.C. Court of Appeal Clarifies Defence of Fair Comment

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in The Second Opinion
Kirsten Thompson

The B.C. Court of Appeal has overturned a defamation decision of the lower court, muzzling an anti-salmon farming activist and ordering him to pay $75,000 in damages to one of the province’s biggest fish farming operations. The key issue in Mainstream Canada v. Staniford, 2013 BCCA 341 was whether the defamatory material sufficiently referenced the “factual foundation” required to establish the defence of fair comment.

Background

The appellant, Mainstream Canada is a producer of farmed salmon; the respondent, Don Staniford is an activist dedicated to the eradication of salmon farming. Staniford posted various publications and images on his website alleging salmon farming was hazardous to human health and the environment.

Mainstream commenced a defamation action and sought general and punitive damages, as well as a permanent injunction against Staniford.

The trial judge dismissed the action, finding that although the publications were defamatory, the defence of fair comment applied. The B.C. Court of Appeal overturned the trial decision on the basis that the defence of fair comment had not been made out.

Law

Allegations of defamation can be met with a defence of fair comment. To make out such defence, the comment must be shown to be (a) on a matter of public interest; (b) based on fact; (c) recognizable as comment; and (d) satisfy the following objective test: could a person honestly express that opinion on the proved facts? Even if all the foregoing are satisfied, the test can be defeated by a finding of malice.

The B.C. Court of Appeal found that the lower court judge had erred on the second element, that the comment must be based on fact. The B.C. Court of Appeal relied on Channel Seven Adelaide Pty Ltd v. Manock, [2007] HCA 60, a decision of the High Court of Australia, saying that the “factual foundation” requirement could be met if the facts: (a) were expressly set out in the same publication as the allegedly defamatory comment; (b) clearly referenced elsewhere; or (c) so notorious as to be already understood by the public.

The B.C. Court of Appeal concluded that the factual foundation for certain comments in the publications “were neither notorious nor contained in the defamatory publications”. This left the question of whether there was a “clear reference” to the factual foundation.

The trial judge had stated that “it would take a determined reader” to locate the facts upon which comments were based but nonetheless held that the test had been met. The B.C. Court of Appeal found that trial judge’s comment regarding a “determined reader” was an implicit acknowledgement that there was not a clear reference to the facts. Further, it divided the world into determined and non-determined readers, which was not the intent of the test.

The B.C. Court of Appeal also held that an explicit reference to a paper mentioned in the defamatory publication was essential and that referencing the paper in a list of almost 480 papers was not sufficient. Nor was it sufficient for facts upon which the comments were made to be contained on other website pages that were not alleged to contain defamatory comments or in hyperlinked documents unless those other pages or hyperlinked documents were identified by a clear reference to contain such facts.

As a result, Staniford had not satisfied the defence of fair comment and the trial judge had erred in dismissing the company’s defamation claim.

The court then ordered Staniford to pay $25,000 in general and $50,000 in punitive damages, referring in the latter award to the defendant’s conduct during the initial 2012 trial. During the initial trial, Stanford had re-launched his website, said an injunction would not stop him, accused First Nations of accepting “blood money” from the plaintiff company and compared the trial to a kangaroo court. He also made “sexist and puerile” comments online about two female witnesses called by the company.  In addition, the court granted a permanent injunction restraining the defendant from “publishing similar words and images in the future.”

Relevance

Companies in high profile industries or engaged in commercial activities which attract the scrutiny of activists now have clearer guidance when evaluating whether commentary by such activists has strayed beyond the bounds of that which is supported by fact.