Creative Salmon Co. v. Staniford, (2009) 266 B.C.A.C. 182 (CA)

• Judge: Levine, Frankel and Tysoe, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 15, 2008
• Jurisdiction: British Columbia
• Citations: (2009), 266 B.C.A.C. 182 (CA);2009 BCCA 61

Creative Salmon Co. v. Staniford (2009), 266 B.C.A.C. 182 (CA);

    449 W.A.C. 182

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. FE.034

Creative Salmon Company Ltd. (respondent/plaintiff) v. Don Staniford (appellant/defendant)

(CA034801; 2009 BCCA 61)

Indexed As: Creative Salmon Co. v. Staniford

British Columbia Court of Appeal

Levine, Frankel and Tysoe, JJ.A.

February 13, 2009.

Summary:

Creative Salmon Co. sued Staniford for damages, alleging that he had falsely and maliciously published defamatory statements about it in two press releases.

The British Columbia Supreme Court, in a decision at [2007] B.C.T.C. Uned. A95, found that the press releases were defamatory of Creative Salmon and were not justified in the sense of being true. The court also held that the defence of fair comment was not available. The court awarded Creative Salmon general damages of $10,000 and aggravated damages of $5,000. Staniford appealed. After the release of the court's judgment, the Supreme Court of Canada modified the test for the defence of fair comment in the case of W.I.C. Radio Ltd. v. Simpson.

The British Columbia Court of Appeal held that the judge had retroactively been placed in error by WIC Radio in the following two respects: (a) she required Staniford to satisfy the "subjective honest belief" requirement when it was no longer part of the test for the defence of fair comment; and (b) the hypothetical person she used in stating the objective test was a "fair minded" person, not any person (no matter how obstinate or prejudiced). The court allowed the appeal and ordered a new trial.

Libel and Slander - Topic 3106

Defences - Fair comment - Elements of fair comment - General - The British Columbia Court of Appeal stated that "the test for the defence of fair comment may now be stated as follows: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognizable as comment; (d) the comment must satisfy the following objective test: could any person honestly express the opinion on the proved facts?; and (e) the defence can be defeated if the plaintiff proves that the defendant was subjectively actuated by express malice" - See paragraph 25.

Libel and Slander - Topic 3106

Defences - Fair comment - Elements of fair comment - General - Creative Salmon Co. sued Staniford for damages, alleging that he had falsely and maliciously published defamatory statements about it in two press releases - The trial judge found that the press releases were defamatory of Creative Salmon and were not justified in the sense of being true - The judge also held that the defence of fair comment was not available - The trial judge awarded Creative Salmon general and aggravated damages - Staniford appealed - After the release of the court's judgment, the Supreme Court of Canada modified the test for the defence of fair comment in the case of W.I.C. Radio Ltd. v. Simpson - The British Columbia Court of Appeal held that the trial judge had retroactively been placed in error by WIC Radio in the following two respects: (a) she required Staniford to satisfy the "subjective honest belief" requirement when it is no longer part of the test for the defence of fair comment; and (b) the hypothetical person she used in stating the objective test was a "fair minded" person, not any person (no matter how obstinate or prejudiced) - The court allowed the appeal and ordered a new trial - See paragraphs 26 to 29.

Libel and Slander - Topic 3109

Defences - Fair comment - Elements of fair comment - Truth - The British Columbia Court of Appeal stated that "the requirement to state the facts truly does not obligate the commentator to set out all facts, both pro and con, relevant to the matter upon which he or she is commenting. Such an obligation would unduly hinder the commentator from forcefully expressing his or her opinion. Of course, the omission of relevant facts will be a factor to consider in determining whether or not malice was the primary motive of the commentator. I agree with the authors of The Law of Defamation in Canada and Gatley on Libel and Slander that the requirement to state the facts truly means in the present context that the commentator may not omit to state important or material facts that would falsify or alter the complexion of the facts stated in the commentary. It is not necessary to state all facts of a nature that may influence the opinion of the person hearing or reading the commentary. In order to defeat the defence, the omitted facts must be sufficiently fundamental that they undermine the accuracy of the facts expressed in the commentary to the extent the stated facts cannot be properly regarded as a true statement of the facts" - See paragraphs 60 to 61.

Libel and Slander - Topic 3109

Defences - Fair comment - Elements of fair comment - Truth - The trial judge found that Staniford published defamatory statements about Creative Salmon Co. in two press releases and that the defence of fair comment was not available - Staniford appealed - Creative Salmon argued that the defence of fair comment was not available to Staniford because the requirement of the defence that the comment be based on fact included an obligation to state the facts truly - The trial judge had found that Staniford had omitted certain facts from the press releases - The British Columbia Court of Appeal held that the omitted facts referred to by the trial judge were not sufficiently fundamental that they undermined the accuracy of the facts that were stated in the press releases - The court concluded that, on the evidence before the trial judge, Staniford did not fail to state the facts truly so as to deprive himself of reliance on the defence of fair comment - See paragraphs 53 to 65.

Libel and Slander - Topic 4005

Malice - General - Inference of - The British Columbia Court of Appeal stated that "It is open to the trier of fact to draw an inference of malice from a lack of honest belief, but there may be circumstances where malice is not the dominant motive of the defendant even though he or she does not have an honest belief in the comment they expressed" - See paragraph 34.

Libel and Slander - Topic 4007

Malice - General - What constitutes malice - The trial judge found that Staniford published defamatory statements about Creative Salmon Co. in two press releases and that the defence of fair comment was not available - In view of the judge's finding that the defence of fair comment was not available, she concluded there was no need to address the issue of whether malice would have defeated such a defence - However, the judge dealt with the issue of malice in connection with the Creative Salmon's claim for aggravated damages, and she held that Staniford had been "motivated by actual malice in that he was trying to build up opposition to Creative Salmon as a company that was attempting to obtain organic certification for its fish" - On appeal, the British Columbia Court of Appeal held that the motivation referred to by the trial judge did not constitute malice at law - The trial judge did not make a finding that Staniford was motivated by ill will or spite - Therefore, the finding of malice against Staniford could only stand if it involved a finding that he was motivated by an indirect motive or an ulterior purpose (which had to be indirect or ulterior to the objective of the defence of fair comment) - The trial judge's finding of Staniford's motivation did not represent an indirect motive or ulterior purpose - Further, the trial judge did not make a finding that Staniford's motive of building up opposition against Creative Salmon's efforts to obtain organic certification was his only motivation - In order to defeat the defence of fair comment, malice had to be the dominant or overriding motive - See paragraphs 30 to 46.

Libel and Slander - Topic 4061

Malice - As a bar to defence of fair comment or qualified privilege - General - [See Libel and Slander - Topic 4007 ].

Cases Noticed:

Simpson v. Mair et al. (2008), 376 N.R. 80; 256 B.C.A.C. 1; 431 W.A.C. 1; 293 D.L.R.(4th) 513; 2008 SCC 40, appld. [para. 2].

W.I.C. Radio Ltd. v. Simpson - see Simpson v. Mair et al.

Simpson v. Mair et al. (2006), 228 B.C.A.C. 1; 376 W.A.C. 1; 55 B.C.L.R.(4th) 30; 2006 BCCA 287, refd to. [para. 2].

Cherneskey v. Armdale Publishers Ltd. and King, [1979] 1 S.C.R. 1067; 24 N.R. 271; 90 D.L.R.(3d) 321, refd to. [para. 23].

Botiuk v. Bardyn et al., [1995] 3 S.C.R. 3; 186 N.R. 1; 85 O.A.C. 81; 126 D.L.R.(4th) 609, refd to. [para. 32].

Botiuk v. Toronto Free Press Publications Ltd. - see Botiuk v. Bardyn et al.

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 35].

Ward v. Clark, [2002] 2 W.W.R. 238; 161 B.C.A.C. 192; 263 W.A.C. 192; 2001 BCCA 724, refd to. [para. 42].

Taylor-Wright et al. v. CHBC-TV et al. (1999), 4 B.C.T.C. 1 (S.C.), affd. (2000), 144 B.C.A.C. 295; 236 W.A.C. 295; 2000 BCCA 629, consd. [para. 54].

Myers v. Canadian Broadcasting Corp. et al. (1999), 103 O.T.C. 81; 47 C.C.L.T.(2d) 272 (Sup. Ct.), revd. in part (2001), 147 O.A.C. 310; 54 O.R.(3d) 626; 6 C.C.L.T.(3d) 112 (C.A.), leave to appeal denied (2002), 289 N.R. 200; 163 O.A.C. 400 (S.C.C.), consd. [para. 54].

Leenen v. Canadian Broadcasting Corp. et al. (2000), 105 O.T.C. 91; 48 O.R.(3d) 656; 50 C.C.L.T.(2d) 213 (Sup. Ct.), affd. (2001), 147 O.A.C. 317; 54 O.R.(3d) 612; 6 C.C.L.T.(3d) 97 (C.A.), leave to appeal denied (2002), 289 N.R. 200; 164 O.A.C. 200 (S.C.C.), consd. [para. 54].

Holsten v. Card et al., [2002] B.C.A.C. Uned. 49; 100 B.C.L.R.(3d) 269; 2002 BCCA 290, refd to. [para. 67].

Authors and Works Noticed:

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed.) (1999 Looseleaf Supp.), vol. 2, pp. 15-2 [para. 54]; 15-84 to 15-86 [para. 58].

Gatley, Clement, Libel and Slander (10th Ed.) (2004 Supp.), paras. 12.1 [para. 39]; 12.17 [para. 59]; 16.4 [para. 34].

McConchie, Roger D., and Potts, David A., Canadian Libel and Slander Actions (2004), p. 335 [para. 39].

Counsel:

D.F. Sutherland and D.L. Kripp, for the appellant;

D.G. Sanderson, Q.C., for the respondent.

This appeal was heard on December 15, 2008, at Vancouver, B.C., before Levine, Frankel and Tysoe, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Tysoe, J.A., on February 13, 2009.