2013 July 15
Nu Fibre Inc. v. Ishkanian, 2013 BCSC 1255
The British Columbia Supreme Court held that the plaintiffs were defamed by three emails and by two articles which appeared in the TIAC Times (a magazine published in print and online) and the Journal of Commerce. One of the three emails held to be defamatory was sent to the Journal of Commerce; the other two were sent to engineers at major mechanical consulting firms.
Nevertheless, the Court dismissed the plaintiff’s claims on the basis the publications all occurred on occasions of qualified privilege. The Court noted that for an occasion to be privileged, the person making the communication must have an interest or a duty, legal, social or moral, to make it to the person(s) to whom it is made, and the person to whom it is made must have a corresponding interest or duty to receive it. “That element of reciprocity is essential.”
In this case, the Court held that engineers and consultants as well as contractors, distributors, builders, designers and engineers likely to receive the Journal of Commerce and the TIAC Times would “share [the defendant’s] professional interest.”
The Court held that the “segment of the population that would be likely to receive [the TIAC Times article) or find it on the website would be quite limited” and that it therefore “could not be considered ‘publication to the world.’” With respect to the Journal of Commerce, the Court expected that publication to have a wider circulation but stated “no evidence was adduced from which I could find that it was so wide as to exceed the limits of qualified privilege…”
The privilege was not defeated by express malice, applying the test for malice prescribed in Smith v Cross, 2009 BCCA 529, which states in part at paragraph 34:
- In Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004) at 299, R. D. McConchie and D.A. Potts reduce this statement to a helpful framework for the categories under which a finding of malice can be made. A defendant is actuated by malice if he or she publishes the comment:Knowing it was false; or
- With reckless indifference whether it is true or false; or
- For the predominant purpose of injuring the plaintiff because of spite or animosity; or
- For some other dominant purpose which is improper or indirect, or also, if the occasion is privileged, for a dominant purpose not related to the occasion.
More than one finding can be present in a given case.
Although the Court dismissed the action, it stated: “…it would seem to me proper that any continuing publication of the TIAC Times article on that journal’s website or elsewhere should be terminated immediately.” “This is not a direction; but I observe that failure to do so in view of my findings would suggest bad faith.”