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The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
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Context Matters: The continued evolution of Defamation Law

Defamation law continues to grow and change as courts attempts to balance the constitutional right to freedom of expression with the right against reputational damage. This evolution continued in the British Columbia Court of Appeal’s recent decision in Northwest Organics, Limited Partnership v. Fandrich, 2019 BCCA 309, (“Northwest”), where the BCCA upheld the trial judge’s decision that considered the plaintiff’s own participation in the debate that led to the defamatory statements in order to determine that the statements were not in fact defamatory.

What is Defamation?

It is incredibly easy to defame someone. You have probably done it without even thinking about it.

Defamation is a tort of strict liability. The plaintiff only needs to prove that:

(1) the words were defamatory;

(2) that the words referred to the plaintiff; and

(3) that the words were published (meaning they were communicated to at least one person other than the plaintiff). [1]

To quote Justice Abella “[a] defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, 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.”[2]

If a plaintiff can meet this threshold, the onus switches to the defendant to prove they have a valid defence for their defamatory comments.

There are a number of common law defences to defamation including that the statement was true (justification), that it was fair comment about a fact that is already well known, or that the circumstances made the speaker immune.

In addition to defences, provincial legislatures have attempted to encourage public debate by creating laws commonly referred to as “” legislation. “SLAPP” is an acronym for “strategic lawsuit against public participation”. In Ontario, this defence is set out in s. 137.1 of the Courts of Justice Act and allows a judge to dismiss a proceeding if satisfied that the proceeding arises from expression relating to a matter of public interest. However, a judge cannot dismiss if they believe the proceeding has substantial merit and that the defendant has no valid defence. In fact, one of the defendants in Northwest attempted to have the claim in Northwest dismissed using British Columbia’s Anti-SLAPP law, but she was unsuccessful and the matter proceeded to trial.

Despite the fact that some defences may have been available to the defendants in Northwest, the judge made her determination based solely on whether the statements were defamatory (step one in the above test) and, in doing so, she considered the context in which they were made.

Facts in Northwest

Northwest Organics, Limited Partnership (“Northwest LP”) was building a commercial composting facility and organic farm. The defendants, mostly neighbours to the facility, opposed and spoke out against the composting facility, claiming, amongst other things, that it would cause foul odours and have a negative environmental impact. The defendants were accused of operating websites opposing the composting facility and putting up road signs encouraging motorists to call the government and report any foul odours. In addition, there were meetings held at the local hall and Northwest LP alleged that some of the defendants made defamatory statements at these meetings.

While there were a number of alleged defamatory statements that were found not to be proven, there were two of interest to this article. The first was an expert report drafted by one of the defendants in response to an expert report released by Northwest LP about the environmental impacts of the composting facility. The second were flyers put out by some of the defendants in response to flyers distributed by Northwest LP.

Defamation requires context

The test for whether a statement is defamatory is an objective one, meaning that you consider how a reasonable person with no specialized knowledge would interpret them.

In determining how a reasonable person would interpret the statements made in the responding expert report and the defendants’ flyers, the lower court Judge considered the context; that the plaintiff and defendants were trading reports and flyers using a similar tone and in some cases commenting directly on what was said by the other side. The trial judge wrote:

[281]        I reach the same conclusion about the Flyers as I did about the Easton Report. Northwest has pleaded extreme or worst possible meaning of the words, not the meaning that a reasonable informed person would take from them. Such a person would have understood them as responding, in similarly strong language, to Northwest’s flyers and the Easton Response. Against the backdrop of the heated public debate about the Facility, the Flyers were strongly-worded responses to Northwest’s flyers. The sting of the words would not have lowered the business character of Northwest as the intended operator of an industrial composting facility in the Botanie Valley […]

[282]        To put it succinctly, in the public debate about the Facility, Northwest gave as good as it got. The plaintiffs were full participants in a matter that was of enormous interest to residents of the local community. Neither the Easton Report nor the Flyers rise to the level of vilification of Northwest. Assessed from the perspective of the reasonable, thoughtful and informed person, they do not tend to cause Northwest to be regarded with “feelings of hatred, contempt, ridicule or fear”. They might engender feelings of “dislike or disesteem.”  However, Northwest’s own statements about opponents of the Facility are just as likely to have had that effect on Northwest’s reputation.

[283]        To prove defamatory meaning, a plaintiff must show that a defendant crossed the line between lawful and unlawful expressive activity. Northwest’s own expressive conduct is relevant to that determination. One cannot sling mud and then complain to the courts about being hit by mud. In my view, considering the impugned passages in the Easton Report and the Flyers in the totality of the circumstances from the perspective of a reasonable thoughtful and informed person, Northwest has failed to prove that they have a defamatory meaning. [emphasis added]

The British Columbia Court of Appeal upheld the decision, saying that the lower court judge had not made an error in her reasoning and that there was prior British Columbia Court of Appeal jurisprudence to support the position that the publication must be viewed as a whole and in context—that the statement cannot be looked at in a vacuum. The Court cited with approval that the lower court judge found that the statements could be defamatory (at the lower end of the scale) but that, due to the context in which they were made, they were not.

They further clarified that is it not the existence of a public debate, but the circumstances as whole (the sensibilities and expectations of the parties) that make up the “context”, saying:

[91]        Thus, 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. That said, 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”

While it remains incredibly easy to defame someone, the decision in Northwest shows that it is not always a foregone conclusion that a statement that could negatively impact a reputation will be found to be defamatory; context matters. The reasoning in Northwest provides an additional basis for a defendant to counter a claim of defamation while the onus still remains on the plaintiff to prove their case. A statement made or published in direct response to a statement made by the plaintiff and using a similar tone might fall at the first hurdle and save the defendants from having to rely on defences such as justification or fair comment.

[1] Grant v. Torstar Corp., 2009 SCC 61

[2] Canadian Broadcasting Corp. v. Color your world Corp., 1998 CanLII 1983 (ON CA)

Karen Bernofsky
Affleck Greene McMurtry LLP

Karen Bernofsky

Karen Bernofsky is a strong advocate with a focus on commercial litigation and delivering cost-effective solutions. She advises and represents clients in a broad range of complex insurance matters, construction matters and commercial disputes, including breach of contract and invoice disputes. Karen is also a skilled negotiator with a proven track record in effective mediation advocacy. She has appeared before all levels of courts and administrative tribunals in Ontario as well as before the Federal Court of Canada.

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