Canada: Subway Provides Notice To CBC That They Will Sue Over Chicken Claims

Last Updated: March 31 2017
Article by Jeffrey Spiegel (Student-at-Law)

Subway has announced that it will be suing the Canadian Broadcasting Corporation (CBC) for $210 million after the public broadcaster published a story claiming the sandwich chain's chicken contained only 50% poultry.

Subway says the allegations, made by CBC's Marketplace program, are "defamatory and absolutely false".

On February 24, 2017, CBC featured a story on its website with the headline "What's in your chicken sandwich? DNA test shows Subway sandwiches could contain just 50% chicken".

According to the story, Marketplace tested chicken from five major fast food restaurants and found that in two popular Subway sandwiches, the chicken tested only contained about half chicken DNA. The chicken tested from the other four fast food chains (A&W, McDonalds, Tim Hortons, and Wendy's) contained at least 84% chicken DNA.

Seeing as how the Subway chicken results were so different from the other restaurants, Marketplace repeated the tests with fresh samples of Subway chicken. But the same results were found: "the oven roasted chicken scored 53.6% chicken DNA, and the chicken strips were found to have just 42.8% chicken DNA." The majority of the remaining DNA was soy.

In response to the story, Suzanne Greco, Subway's president and chief executive, issued a statement saying, "The stunningly flawed test by Marketplace is a tremendous disservice to our customers," and that "the allegation that our chicken is only 50 per cent chicken is 100 per cent wrong."

Subway also had two independent labs test its chicken, and found that "the Canadian chicken products tested had only trace amounts of soy." Subway even took out a full page ad in The Globe and Mail with the statement, "Saying our chicken is only 50 per cent chicken is 100 per cent wrong."

In light of Subway's response to its story, CBC is not backing down—it has chosen to stand by the report.

If Subway does go forward with its suit, it will likely bring an action for defamation against CBC.

Under Canadian law, defamation is communication made about a person that tends to hurt the person's reputation. A defamatory communication must be made to other people, not just to the person it's about.

There are two types of defamation: slander and libel. If defamation is spoken, then it is called slander. If it is written or broadcasted, it is called libel. Libel is the type of defamation with a permanent record, like a newspaper, a letter, a website posting, an email, a picture, or a radio or TV broadcast.

While Subway has announced that it will be suing CBC, at this point it has only delivered a notice of action.

Normally the act of suing is commenced by issuing a statement of claim; however, Ontario libel laws require Subway to first give CBC notice of their impending lawsuit in writing, within six weeks of learning of CBC's allegedly libelous publication.

The same law requires Subway to commence its suit, by issuing a statement of claim, with three months of having knowledge of the publication.

In a defamation action, Subway would be required to prove three things to obtain judgment and an award of damages:

  1. that CBC's publication was defamatory in the sense that it would tend to lower Subway's reputation in the eyes of a reasonable person;
  2. that CBC's publication in fact referred to Subway; and
  3. that CBC's publication was communicated to at least one person other than Subway.

There are a number of defences for defamation claims. The most obvious and applicable defence for CBC will be "truth". A true statement cannot be defamatory. If using this defence, the onus will be on CBC to prove that its statements regarding Subway's chicken are true.

Generally, if you are suing for libel in Canada, you do not need to prove that you suffered damages. You only need to prove that a false statement with a permanent record was made about you to a third party, and the court will presume that damages were suffered.

However, Ontario (and other jurisdictions) have placed limits on the damages recoverable in libel actions where the story was made in good faith and based on mistake or misunderstanding. Under the Libel and Slander Act, a plaintiff may only recover actual or special damages if the alleged defamatory material was published in good faith, the publication did not impute to the plaintiff the commission of a criminal offence, the publication took place in mistake or misapprehension of the facts; and the statutory terms regarding retraction and apology were satisfied.

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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