2013 September 20

Gant v. Berube, 2013 BCSC 1721

The British Columbia Supreme Court dismissed an application for an interlocutory application to restrain the defendants from further publication of allegedly defamatory allegations concerning the plaintiffs on various websites and Internet bulletin boards.  The Court stated:

“ An application for an interlocutory injunction in the context of a defamation claim has always been treated differently.  This is because it squarely raises the competing public interest of freedom of speech, which, the courts have held, ought not to be stifled in advance of a trial on the merits except in the very clearest of cases.  In one sense, this may be viewed as akin to the principle from RJR-MacDonald that the strength of the applicant’s case is the predominant consideration where the effect of the injunction would be to end the litigation.  Since the granting of an interlocutory injunction in a defamation case prevents the publication of the impugned words without any decision on the merits of the claim, the existence of a fair case to be tried has been considered insufficient.  Instead, the courts have required that the words complained of be manifestly defamatory and impossible to justify: see, for instance, Beidas v. Pichler 2008 CanLII 26255 (ON SCDC), (2008), 294 D.L.R. (4th) 310 (Ont. Sup. Ct. J.), and Canada (Human Rights Commission) v. Canada Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626.  …  Although many cases refer solely to the defence of justification, the test is wider than that.  To quote from Professor R. E. Brown’s well-known text, Brown on Defamation, looseleaf, 2nd ed. (Toronto: Carswell 2011) at pp. 36-7 and 44-46:  A court will look to see if the defendant has a sustainable defence; if so an interim injunction will not be granted.  It must be beyond doubt that there are no defences.  An injunction should issue only if the defendant does not deny the falsity of the publication or, if denied, it would be impossible for him or her to succeed on a plea of justification.  Even if it is conceded that the publication is untrue, an interlocutory injunction will not be granted where the defendant intends to defend on the grounds of privilege or fair comment on a matter of public interest.  … If the defendant intends to defend on the basis of a qualified privilege or a fair comment on a matter of public interest, the court should not issue an injunction unless it is shown that the defendant is acting dishonestly and with malice in, or it is clear that the defences are spurious or fanciful or bound to fail.  It is not necessary for the defendant to submit evidence in support of these defences  to defeat an injunction, but the court will look critically at the defences pleaded to see if they would succeed.”  

In this case, the BC Supreme Court held that it could not conclude that the defence of justification cannot possibly succeed and the plaintiffs therefore had not satisfied the test for an interlocutory injunction, referring to Nazerali v Mitchell, 2011 BCSC 1846 at paragraph 12.