2013 February 27

Nazerali v. Mitchell, 2013 BCSC 698

The British Columbia Supreme Court granted an application by the defendants for a ruling that the claims relating to allegedly defamatory expression on a U.S.A. website are not suitable for determination by summary trial on affidavits.

“Turning to the suitability of this case for summary trial, there is no issue that I can dismiss an application to proceed in that manner if the issues are not suitable for determination by summary trial, or it such a trial process will not assist in the efficient resolution of the proceeding. On the issue of justification … it will be necessary to decide whether the justifying facts put forward by the defendants or Mr. Nazerali’s denial of them should be preferred. Unlike cases in which conflicts in the evidence can be resolved by resorting to objective evidence external to the parties … engaging in that process on the evidence in this case would place a summary trial judge in an impossible position…”

“As to the defence of responsible journalism, …this case will depend on an assessment of the credibility of the defendants’ claims that Mr. Nazerali was inaccessible for the purposes of gaining his side of the story and that the nature of the confidential information that they relied on made it reasonable not to seek his input. Again, these are not conclusions that can be arrived at solely from a comparison of affidavit contents.”

The Court concluded that without live testimony and cross-examination, a judge will not be able to find the facts necessary to determine the factual and legal issues.