2016 December 5

Dong v. Hofer, 2016 BCSC 2440

The British Columbia Supreme Court dismissed an application by the defendant for summary judgment dismissing the defamation action, on the grounds the case was not suitable for disposition by summary trial. The claim related to four alleged defamatory publications, including an email sent to the plaintiff’s general manager. The Court noted that “A summary trial, although based on affidavits in chambers, remains a trial of the action for which the plaintiff (even if not the applicant) bear the onus of proof of establishing his or her claim(s) and the defendant (even if not the applicant) retains the burden of establishing any defence that is raised.” The court noted that “where credibility is a material issue, and cannot be resolved b y the body of written evidence, the courts have often found it difficult to find the necessary facts based on the contradictory evidence of witnesses alone, and have also found it unjust to decide the issues without allowing for cross-examination.” The court concluded that particularly in relation to slander claims, credibility is a material issue and it cannot be adequately or justly resolved on the basis of a paper record. With respect to the email claim, the Court considered that even if the evidence permitted a determination of that issue, “it would, at best, decide a ‘slice’ of the litigation” which would not be justified.