A decision handed down on July 22, 2013 by the British Columbia Court of Appeal clarified the requirements for publishers to identify facts relied on when invoking the defence of fair comment and granted judgment in favour of Fasken’s client, Mainstream Canada.
Mainstream Canada sued an environmental activist, Don Staniford, over an anti-salmon farming Internet campaign which suggested that Mainstream’s products kill people, are unsafe for human consumption, and that Mainstream engaged in corrupt and immoral behaviour. Mr. Stanford utilized doctored Marlboro cigarette package images with what he characterized as “health warnings” including, “Salmon Farming Kills” and “Salmon Farming Kills Like Smoking”.
The Court of Appeal rejected Mr. Staniford’s fair comment defence on the basis that he had not indicated the facts on which his comments were based, and awarded general damages, punitive damages, a permanent injunction, special costs of the trial and costs of the appeal to Mainstream.
After a four week hearing, the trial judge concluded (in a decision handed down on September 28, 2012) that Mainstream had proven its case in defamation. In particular Justice Adair found that the anti-salmon farming campaign was published (which was admitted), was about Mainstream and that the comments at issue were defamatory. In coming to her decision Justice Adair found of Mr. Staniford that he ignored and disdainfully dismissed peer-reviewed science conflicting with his opinions. Neutral facts lead him to illogical conclusions, saying almost anything to further his own agenda. He mocked, insulted and victimized witnesses, defied the authority of the court, and compared the trial to a kangaroo court. He had many problems with his credibility; and was clearly severely prejudiced about salmon farming. The evidence was overwhelming that he did not try to hide his spite, ill will or contempt for industrial aquaculture, and for Mainstream. The language of his campaign was extreme, inflammatory, sensationalized, extravagant and violent, actuated by express malice towards Mainstream.
On the other hand, Justice Adair found that Mainstream models the behaviour of a good corporate citizen: “They are conscious of the need to operate the business in a manner consistent with producing a product that is safe to consume and contributes to a healthy and nutritious diet.”
Mr. Staniford relied on the defence of fair comment. (He initially pled truth as well, but abandoned this defence on the third day of trial.) The fair comment defence required that Mr. Staniford prove that the statements at issue (a) were recognizable as comments rather than facts, (b) were based on facts sufficiently stated or notoriously known, (c) were on a matter of public interest (which was conceded), and (d) when objectively analyzed, some person could honestly express the opinion on the proved facts. Even if those were established Mr. Staniford would be unsuccessful if express malice was established.
In a surprising decision, given the positive findings about Mainstream and the adverse findings about Mr. Stanford, the trial judge concluded that the defence of fair comment had been established and was not defeated by the finding of express malice toward Mainstream.
Mainstream appealed the Supreme Court decision to the British Columbia Court of Appeal. It alleged three errors on the part of the trial judge: (a) that the comments were not supported by the factual matrix, (b) in finding that the objective honest belief test was satisfied because Mr. Staniford subjectively believed his comments, and (c) that the finding of express malice should have defeated the fair comment defence. The Court of Appeal reversed the trial judge, concluding that the trial judge erred in finding that the facts underlying the comment were sufficiently known or indicated. The Court did not consider the other two errors alleged by Mainstream.
The trial judge concluded that “it would take a determined reader” to locate the facts on which Mr. Staniford based his comments, but concluded that the facts were sufficiently stated or otherwise known to allow readers to make up their own minds about his comments.
Justice Tysoe, with the two other justices that heard the appeal concurring, set out three ways in which facts underlying a plea of fair comment can be set out: (a) expressly stated in the publication, (b) identified by clear reference, or (c) notoriously known. This test, Justice Tysoe noted, was previously acknowledged by the High Court of Australia to be the test in Australia, England, South Africa, Hong Kong and the United States. He said that in his view this represents the law in Canada and there is no principled reason why the law should be different in Canada than in those other countries.
On this basis, in order to rely on the defence of fair comment, the facts on which a publisher relies in support of a comment must be either:
- properly disclosed in the publication;
- sufficiently indicated by clear reference; or
- be so notoriously known so that they do not need to be stated,
thus allowing readers or viewers to make up their own minds about the merit of the comment.
Having concluded that the determined reader test is not appropriate and overturning the trial judge on the result, the Court of Appeal turned to the remedy. The Court of Appeal concluded that it was in the interests of justice that it assess general and punitive damages, rather than sending the matter back to the trial judge, and exercised its discretion to do so. It awarded $25,000 in general damages, $75,000 in punitive damages and granted a permanent injunction to restrain further such publications. It also awarded special costs of the trial, and regular costs of the appeal to Mainstream.