Canada: Controversial "Salmon Farming Kills" Campaign Declared Defamatory

Last Updated: August 16 2013
Article by David Wotherspoon

A decision handed down on July 22, 2013 by the British Columbia Court of Appeal clarified the requirements for publishers to identify facts relied on when invoking the defence of fair comment and granted judgment in favour of Fasken's client, Mainstream Canada.

The Campaign

Mainstream Canada sued an environmental activist, Don Staniford, over an anti-salmon farming Internet campaign which suggested that Mainstream's products kill people, are unsafe for human consumption, and that Mainstream engaged in corrupt and immoral behaviour. Mr. Stanford utilized doctored Marlboro cigarette package images with what he characterized as "health warnings" including, "Salmon Farming Kills" and "Salmon Farming Kills Like Smoking".

The Court of Appeal rejected Mr. Staniford's fair comment defence on the basis that he had not indicated the facts on which his comments were based, and awarded general damages, punitive damages, a permanent injunction, special costs of the trial and costs of the appeal to Mainstream.

The Trial

After a four week hearing, the trial judge concluded (in a decision handed down on September 28, 2012) that Mainstream had proven its case in defamation. In particular Justice Adair found that the anti-salmon farming campaign was published (which was admitted), was about Mainstream and that the comments at issue were defamatory. In coming to her decision Justice Adair found of Mr. Staniford that he ignored and disdainfully dismissed peer-reviewed science conflicting with his opinions. Neutral facts lead him to illogical conclusions, saying almost anything to further his own agenda. He mocked, insulted and victimized witnesses, defied the authority of the court, and compared the trial to a kangaroo court. He had many problems with his credibility; and was clearly severely prejudiced about salmon farming. The evidence was overwhelming that he did not try to hide his spite, ill will or contempt for industrial aquaculture, and for Mainstream. The language of his campaign was extreme, inflammatory, sensationalized, extravagant and violent, actuated by express malice towards Mainstream.

On the other hand, Justice Adair found that Mainstream models the behaviour of a good corporate citizen: "They are conscious of the need to operate the business in a manner consistent with producing a product that is safe to consume and contributes to a healthy and nutritious diet."

Mr. Staniford relied on the defence of fair comment. (He initially pled truth as well, but abandoned this defence on the third day of trial.) The fair comment defence required that Mr. Staniford prove that the statements at issue (a) were recognizable as comments rather than facts, (b) were based on facts sufficiently stated or notoriously known, (c) were on a matter of public interest (which was conceded), and (d) when objectively analyzed, some person could honestly express the opinion on the proved facts. Even if those were established Mr. Staniford would be unsuccessful if express malice was established.

In a surprising decision, given the positive findings about Mainstream and the adverse findings about Mr. Stanford, the trial judge concluded that the defence of fair comment had been established and was not defeated by the finding of express malice toward Mainstream.

The Appeal

Mainstream appealed the Supreme Court decision to the British Columbia Court of Appeal. It alleged three errors on the part of the trial judge: (a) that the comments were not supported by the factual matrix, (b) in finding that the objective honest belief test was satisfied because Mr. Staniford subjectively believed his comments, and (c) that the finding of express malice should have defeated the fair comment defence.
The Court of Appeal reversed the trial judge, concluding that the trial judge erred in finding that the facts underlying the comment were sufficiently known or indicated. The Court did not consider the other two errors alleged by Mainstream.

The trial judge concluded that "it would take a determined reader" to locate the facts on which Mr. Staniford based his comments, but concluded that the facts were sufficiently stated or otherwise known to allow readers to make up their own minds about his comments.

Justice Tysoe, with the two other justices that heard the appeal concurring, set out three ways in which facts underlying a plea of fair comment can be set out: (a) expressly stated in the publication, (b) identified by clear reference, or (c) notoriously known. This test, Justice Tysoe noted, was previously acknowledged by the High Court of Australia to be the test in Australia, England, South Africa, Hong Kong and the United States. He said that in his view this represents the law in Canada and there is no principled reason why the law should be different in Canada than in those other countries.

On this basis, in order to rely on the defence of fair comment, the facts on which a publisher relies in support of a comment must be either:

(a) properly disclosed in the publication;

(b) sufficiently indicated by clear reference; or

(c) be so notoriously known so that they do not need to be stated,

thus allowing readers or viewers to make up their own minds about the merit of the comment.

Having concluded that the determined reader test is not appropriate and overturning the trial judge on the result, the Court of Appeal turned to the remedy. The Court of Appeal concluded that it was in the interests of justice that it assess general and punitive damages, rather than sending the matter back to the trial judge, and exercised its discretion to do so. It awarded $25,000 in general damages, $75,000 in punitive damages and granted a permanent injunction to restrain further such publications. It also awarded special costs of the trial, and regular costs of the appeal to Mainstream.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.