A Plaintiff in a defamation action not only had its action
dismissed, but its hands slapped by the Court with an order that it
pay the Defendants special costs in the case of Taseko Mines
Limited v. Western Canada Wilderness Committee, 2016 BCSC 109.
Special Costs are only awarded against a party who has engaged in
reprehensible conduct. In Taseko Mines Limited v. Western
Canada Wilderness Committee, the Court found it was
reprehensible for the Plaintiff to have continued in its claim for
punitive damages and special costs in circumstances where the
Plaintiff should have known that such damages were not warranted.
The Court found that seeking punitive damages in this way was
"an economic threat" which may "serve to silence
The Plaintiff, Taseko Mines Limited, sued the Defendants,
Western Canada Wilderness Committee and Sven Biggs, for five
alleged defamatory statements. The Defendants pled that the action
was an improper use of the litigation process, an abuse of process
and that the Plaintiff was seeking to use the law of defamation to
limit freedom of expression.
Taseko Mines Limited had applied for federal and provincial
approvals for an open pit mine. An environmental review
panel, citing adverse environmental impacts, rejected the proposal.
The Plaintiff submitted a second proposal, and the Canadian
Environmental Assessment Agency ("CEAA") invited comment
from the general public. During the second proposal, the Defendants
posted three articles on its website. The articles claimed the
project could threaten thousands of fish as it would turn a nearby
lake into a "dump site for toxic tailings". The articles
requested its readers to use the Defendants' online
correspondence tool to submit a comment to the Environmental
Assessment Panel ("EAP").
The Plaintiff filed a defamation suit seeking damages, including
punitive damages and special costs, in response to these articles.
After the defamation action was commenced, the Defendants published
two more articles which claimed the Plaintiff was using the
litigation process to silence critics on a matter of public
importance, and described the Plaintiff's efforts as a
"strategic lawsuit against public participation" or
"SLAPP". The Plaintiff amended its defamation claim to
also include claims that allege these two articles were also
The Court ultimately dismissed all five defamation claims. The
Court found the first three articles were not defamatory and
further, that the defence of fair comment was available. With
respect to the last two articles, which were found to be
defamatory, the Court ruled that the defence of fair comment was
available. In doing so, the Court found that a person might
honestly express the opinion that the action was a SLAPP suit.
The Court specifically rebuked the Plaintiff's conduct of
continuing to plea and maintain serious allegations against the
Defendants in spite of the EAP's report. In regard to the
second proposal, the key findings of EAP's report identified
adverse environmental impacts similar to those the Defendants had
described in its first three articles. Despite this, the Plaintiff
continued to seek punitive damages and special costs.
The Court stated at paragraph 198 of the decision that:
"Where serious allegations are
made, especially in connection with free expression, such
allegations should be withdrawn where, as matters unfold, it
becomes apparent that a proper basis does not exist for the
In reaching this finding, the Judge expressed that he did not
wish to create cost consequences that might be unique to a SLAPP
suit, and instead applied the usual test applicable for an award of
special costs. The usual requirement for an award of special costs
is a finding that the party engaged in outrageous, scandalous or
reprehensible conduct, as well as milder forms of misconduct which
is deserving of rebuke from a Court or Tribunal.
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.
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