2013 July 22
Mainstream Canada v. Staniford, 2013 BCCA 341, leave to appeal to the Supreme Court of Canada denied: 2014 CanLII 5973 (SCC)
The British Columbia Court Appeal, reversing the trial judge, unanimously held that the defendant was not protected by the defence of fair comment for defamatory allegations contained in a January 2011 press release sent to the news media and in publications on the defendant’s website (including a version of the January 2011 press release).
Writing the judgment of the Court of Appeal, Tysoe J.A. noted that the Supreme Court of Canada set out the test for fair comment in Grant v Torstar Corp, 2009 SCC 61:
As reformulated in WIC Radio, [WIC Radio Ltd. v Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420] at para. 28, a defendant claiming fair comment must satisfy the following test: (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 recognisable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.
Tysoe JA held that the trial judge in this case erred “in finding that the second element (i.e. the comment must be based on known facts) was satisfied.” Accordingly, the Court of Appeal allowed the appeal, and held it was “unnecessary to consider whether the trial judge erred in concluding that the fourth element of the test was satisfied and the defence was not defeated by malice.” He noted that in order for the fair comment defence to apply, “it is necessary for the comment to have a factual foundation or factual substratum” so the audience is in a position to assess or evaluate the comment.
Tysoe JA expressly approved the following passage from the majority decision of the High Court of Australia in Channel Seven Adelaide Pty Ltd. v Manock, [2007] HCA 60 concerning the required linkage between the comment and the supporting facts:
[49] … a sufficient linkage between the comment alleged and the factual material relied on can appear in three ways: the factual material can be expressly stated in the same publication as that in which the comment appears (ie by “setting it out”); the factual material commented on, while not set out in the material, can be referred to (ie by being identified “by a clear reference”); and the factual material can be “notorious.” …
Tysoe JA considered that this statement is “consistent with the expression at para. 34 of WIC Radio that the factual foundation for the comment must be properly disclosed, sufficiently indicated or notorious.
Applying that test to this case, the Court of Appeal found that certain facts were notorious, others were contained in the defamatory publications, but certain key facts were neither notorious nor contained in the publications and therefore needed to be “identified by a clear reference” or “sufficiently indicated.” In this context, the trial judge erred:
- By failing to distinguish between non-notorious facts stated in the defamatory publications and non-notorious facts stated elsewhere.
- By failing to consider whether the non-notorious facts stated elsewhere were identified by a clear reference.
- By suggesting it was sufficient for the facts upon which the defamatory comments were based to be known by determined readers who conducted research on the defendant’s website and beyond.
Tysoe JA noted that the plaintiff Mainstream did not allege in its notice of civil claim that all of the pages on the defendant’s website were defamatory:
[45] In my view, all of the pages on a website, together with all articles hyperlinked on the website, do not constitute a single publication…It is not sufficient for the defence of fair comment for facts upon which the comments were made to be contained on webpages that were not alleged to contain defamatory comments or in hyperlinked documents unless those other pages or hyperlinked documents were identified by a clear reference to contain such facts.
[46] Whether the hyperlinks in a defamatory publication on a website to other documents containing facts upon which the defamatory comment was made is sufficient will depend on the circumstances of each case. If the defamatory publication advises the reader that a hyperlinked document contains facts upon which the defamatory comment is based and sets out where in the document they are contained, then there may well be a sufficient reference to those facts. In this case, however, the readers of the defamatory publications were not advised which of the multitudinous hyperlinked documents in the publications or elsewhere on the [defendant’s] website contained facts upon which Mr. Staniford’s comments were based.
In the result, instead of remitting the matter to the BC Supreme Court for a new trial, the Court of Appeal awarded the plaintiff corporation $25,000 general damages, $50,000 punitive damages, special costs and an injunction.