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 being appealed.
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.
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