This may be the final decision in the ongoing litigation concerning
allegations of defamation and slander of title in connection with a
gold mine in Malaysia. We first reported on this litigation in
Mining in the Courts, Vol. I, after the British Columbia
Court of Appeal (BCCA) overturned the lower court's decision to
strike the action as disclosing no reasonable claim (2010 BCCA
373). In this decision, the BCCA reviewed the case on its merits
and dismissed the action. It is unknown whether the decision is
Monument Mining Ltd. (Monument), through a series of subsidiary
companies, controls and operates the Selinsing Gold Mine in
Malaysia. In August 2007, four letters were sent by the defendant
Balendran Chong & Bodi, a law firm in Malaysia, on the
instruction of its clients (who were also defendants in the
lawsuit), including one letter to a Vancouver law firm. The letters
claimed that Monument had entered into an agreement to sell the
gold mine when it did not in fact own the mine because the law
firm's clients held a controlling ownership interest. The
letters also claimed that there was ongoing litigation in Malaysia
against two of Monument's directors.
Monument alleged that the letters were falsely and maliciously
defamatory of Monument and constituted slander of title of
Monument's ownership of the gold mine.
After reviewing the letters, the BCCA found that they would lead
a reader to believe, among other things, that Monument was not the
rightful owner of the gold mine and that Monument had failed to
make proper disclosure. As such, the BCCA agreed that the letters
were defamatory because they would tend to lower Monument in the
estimation of right thinking members of society. However, in order
to succeed in a defamation action, the defamatory content must be
"published," meaning that the words must be communicated
to at least one person other than Monument. While the defendants
admitted that one of the letters had been published, they argued
that the other three letters had not been published because they
had been communicated to persons closely associated with the
corporation, including the corporation's management and its
lawyers. This, the defendants argued, did not amount to publication
to a third party in the legal sense, and the BCCA agreed.
In addition, the BCCA found the letters to be protected by
absolute privilege, such that the action in defamation could not
succeed. In Canada, the general rule is that absolute privilege
attaches to communications which take place during, incidental to
and in the processing and furtherance of judicial or quasi-judicial
proceedings. The BCCA accepted this defence, finding that the
letters were reasonably related to the litigation in Malaysia and
were written and delivered on an occasion of absolute privilege.
Although this was a complete defence to Monument's defamation
claim, the BCCA went on to consider the defence of qualified
privilege and found that the prerequisites for that defence had
also been made out.
The BCCA similarly dismissed Monument's claim for slander of
title, finding, among other things, that although Monument
controlled the gold mine through its interest in other
corporations, it was three steps removed from title and did not own
the gold mine when the letters were sent. In the result, Monument
had no standing to maintain an action in slander of title.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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