2016 March 11

Walsh Energy Inc. v Better Business Bureau of Ottawa-Hull Inc., 2016 ONSC 1606

A three judge panel of the Divisional Court of the Ontario Superior Court of Justice allowed an appeal from a trial decision dismissing the plaintiff’s defamation action over a published rating on the defendant’s website. The Divisional Court held that the trial judge erred by making no finding as to the plain and ordinary meaning of the words complained of by the plaintiff, and that this was an error in principle that went to the heart of the judgment. “The impugned words were defamatory of [the plaintiff], and the trial judge erred in law in concluding otherwise.” The judge also confused the defences of fair comment and qualified privilege, thereby “conflating” them, and erred in dismissing the claim on the basis the impugned words are “mere opinion.” With respect to the trial finding that the impugned words were protected by the defence of qualified privilege, the Divisional Court held that the defendant “had no legal duty to rate the ethics and trustworthiness of businesses.” “Many people undertake to evaluate others: restaurant reviewers, arts critics, and, increasingly, firms that aggregate public opinions expressed through internet web sites, may undertake to themselves the task of furnishing opinions about a broad range of topics and communicating those opinions to the general public. Simply undertaking such a task does not vest a critic with qualified privilege which … is a defence to publishing damaging statements about others.“