Canada: Keeping Things In Context: B.C. Court Of Appeal Considers The Roles Of Context And Public Debate In Defamation Cases

Last Updated: September 10 2019
Article by Canadian Appeals Monitor and Connor Bildfell

The B.C. Court of Appeal's recent decision in Northwest Organics, Limited Partnership v. Fandrich1 ("Northwest Organics") demonstrates the importance of keeping things in context when determining whether an allegedly defamatory statement has a defamatory meaning. In particular, the decision illustrates that even a statement that might engender feelings of dislike or disesteem towards an individual or a company may not have a defamatory meaning when considered in context.

Facts

The plaintiffs — Northwest Organics, Limited Partnership and Northwest Group Properties Inc. (together, "Northwest") — purchased a farm in the Botanie Valley (near Lytton) on which it intended to build and operate a commercial composting facility. Upon learning of this intention, the defendants, a handful of community members and a non-profit society, grew concerned over the potential adverse environmental and health impacts of the facility. A heated public debate over the facility followed, with Northwest and the defendants publishing a series of reports, flyers, and other statements that criticized one another's positions.

This debate was launched in earnest when Northwest retained a biologist to perform an independent environmental review of the proposed facility. The resulting report concluded that if the facility were to be constructed as designed and operated according to best practices, then it should have no major adverse environmental effects. In response, the Lytton First Nation retained a consultant to perform a separate review. The resulting report was critical of the proposal and recommended against constructing the facility based on perceived environmental and health risks. In reply, Northwest published a report and two flyers that, among other things, criticized the consultant's report as "malicious, reckless, alarmist and intentionally misleading". This back-and-forth continued as flyers that disputed the accuracy of statements made by Northwest were distributed and community meetings about the facility were held. At one meeting, one of the defendants expressed concerns about the facility, including that rats and vermin would come in with the compost and that the operation would bring in seeds and invasive plants. According to Northwest, these statements implied that it would cut corners, violate applicable regulations, and act in a manner inconsistent with its own published plans.

Northwest sued the defendants in defamation and unlawful interference with economic interests, claiming that the alleged defamatory opposition to the facility delayed its opening and harmed its profitability.

Trial Decision

The trial judge dismissed Northwest's claims. She reasoned that when considered in context, which included the ongoing debate about the facility and Northwest's participation in that debate, the allegedly defamatory oral statements would be understood by a reasonable person as expressions of concern about potential adverse impacts of the facility, not statements that would tend to lower Northwest's reputation.2 Further, while she accepted that some of the defendants' written statements "might engender feelings of 'dislike or disesteem'" towards Northwest, she held that those statements did not have a defamatory meaning when considered in context and from the perspective of a reasonable person.3 She also stressed that "[o]ne cannot sling mud and then complain to the courts about being hit by mud".4 Northwest appealed.

Court of Appeal Decision

The Court of Appeal noted that a plaintiff must establish three elements to succeed in a defamation suit: (1) the impugned words were defamatory; (2) the words referred to the plaintiff; and (3) the words were communicated to at least one person other than the plaintiff.5 It also noted that if these three elements are proven, then the onus shifts to the defendant to establish a defence such as truth or fair comment, failing which liability will follow.6

Focusing on the first element, the court confirmed that "[a] defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers" — that is, it has a tendency "to lower him [or her] in the estimation of right-thinking members of society generally and in particular to cause him [or her] to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem".7 It also observed that "[t]he meaning of words must generally be understood in the context of all the circumstances and the publication as a whole".8

Applying these principles, the court concluded that the trial judge did not err in finding that the allegedly defamatory statements did not have a defamatory meaning. It stated that while "the bare fact of public debate, without meaningful evidence as to the expectations and sensibilities of those who engage in such discourse, may not inform the consideration of 'context' and is better situated in the second (defence) stage", "the assessment of whether words have defamatory meaning requires consideration of 'all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented'".9 Accordingly, it reasoned, since the parties' respective reports, flyers, and other statements referred to and critiqued one another, their meaning had to be assessed within this broader context.10 It stressed that considering the allegedly defamatory statements in a vacuum, isolated from the statements to which they responded, "would be contrary to common sense, logic and the authorities".11

Further, the court rejected Northwest's argument that because the trial judge found that some of the allegedly defamatory statements "might engender feelings of 'dislike or disesteem'" towards Northwest, she was bound to conclude that such statements were defamatory. The court reasoned that by using the word "might", the trial judge was indicating that the statements were capable of being defamatory, but that she ultimately found that they were not. In the court's view, it was open to the trial judge to reach this conclusion.

Accordingly, the appeal was dismissed.

Key Takeaways

The key takeaway from Northwest Organics is that the assessment of whether a statement has a defamatory meaning — that is, whether it has a tendency to injure the reputation of the person to whom it refers — is highly contextual. Consistent with this overarching principle, where the statement in question responds to one or more other statements, the court may consider those statements together in determining whether the impugned statement has a defamatory meaning. Further, Northwest Organics illustrates how expressions of disagreement, even those that might engender feelings of dislike or disesteem towards an individual or a company, are not necessarily defamatory.

But that is not to say that anything said in the course of a heated public debate is protected. To the contrary, the Court of Appeal in Northwest Organics cautioned that "[i]t would be an error to find that otherwise defamatory language might be legally sterilized by the vigour or tenor of debate".12 Hence, the fact that a statement was made in the context of a heated public debate does not, on its own, preclude a finding that it has a defamatory meaning.

It remains to be seen whether Northwest Organics will file for leave to appeal to the Supreme Court of Canada.

Protection of Public Participation Act

Finally, litigants should bear in mind that the B.C. Protection of Public Participation Act13 ("PPPA"), which seeks to enhance public participation by protecting expression on matters of public interest from unmeritorious lawsuits that aim to silence or punish one's critics (also known as "strategic lawsuits against public participation" or "SLAPPs"), is now in force. On November 12, the Supreme Court of Canada will hear a pair of appeals dealing with the Ontario equivalent of B.C.'s PPPA.14 Keep an eye on this blog to receive updates on the latest developments.

Footnote

1 2019 BCCA 309 [Northwest Organics].

2Northwest Organics, Limited Partnership v. Roest, 2018 BCSC 866 at paras. 175, 197.

3Ibid. at paras. 281–83.

4Ibid. at para. 283.

5Supra note 1 at para. 59.

6Ibid. at para. 61.

7Ibid. at para. 58, quoting Color Your World Corp. v. Canadian Broadcasting Corp. (1998), 156 D.L.R. (4th) 27 at para. 14 (Ont. C.A.), leave to appeal ref'd [1998] S.C.C.A. No. 170.

8Supra note 1 at para. 68, citing Taseko Mines Limited v. Western Canada Wilderness Committee, 2017 BCCA 431 at para. 44.

9Supra note 1 at para. 91, citing Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 at para. 62.

10Supra note 1 at paras. 94, 97.

11Ibid. at para. 98.

12Ibid. at para. 102.

13 S.B.C. 2019, c. 3 [PPPA]. The PPPA applies in respect of proceedings commenced on or after May 15, 2018: s. 2.

141704604 Ontario Limited v. Pointes Protection Association, et al. (38376) and Maia Bent, et al. v. Howard Platnick, et al. (38374).

To view the original article click here

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 Mondaq.com.

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

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions