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Keeping things in context: B.C. Court of Appeal considers the roles of context and public debate in defamation cases

defamation

The B.C. Court of Appeal’s recent decision in Northwest Organics, Limited Partnership v. Fandrich[1] (“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 Act[13] (“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.

By Connor Bildfell


[1] 2019 BCCA 309 [Northwest Organics].

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

[3] Ibid. at paras. 281–83.

[4] Ibid. at para. 283.

[5] Supra note 1 at para. 59.

[6] Ibid. at para. 61.

[7] Ibid. 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.

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

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

[10] Supra note 1 at paras. 94, 97.

[11] Ibid. at para. 98.

[12] Ibid. 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.

[14] 1704604 Ontario Limited v. Pointes Protection Association, et al. (38376) and Maia Bent, et al. v. Howard Platnick, et al. (38374).

Case information

Northwest Organics, Limited Partnership v. Fandrich, 2019 BCCA 309

Docket Numbers: CA45368; CA45369; CA45370

Date of Decision: August 27, 2019

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McCarthy Tétrault LLP

McCarthy Tétrault is a Canadian law firm that delivers integrated business law, litigation services, tax law, real property law, labour and employment law nationally and globally.McCarthy publishes a series of blogs to share information with companies to help them comply and manage their businesses. On the Inside Internal Controls blog we will share some of those blog posts sharing their expertise among others, in the areas of Competition/Anti-trust, Corporate and Commercial Law, Intellectual Property, Privacy, Environmental Law, Technology and Litigation. Read more here
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