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DEFAMATION - What constitutes - Defences - Fair comment - Justification or truth

Tuesday, October 08, 2019 @ 8:43 AM  


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Appeal by the plaintiffs, the Northwest Organics companies, from dismissal of its defamation action against multiple defendants, and from the assessment of damages against one defendant. The plaintiffs purchased a farm for the purpose of developing an industrial composting facility. Residents in the area opposed the development due to possible adverse environmental and health impacts. The plaintiffs commissioned an independent environmental review in favour of the development. Opponents commissioned a report that contradicted the plaintiffs' review. The plaintiffs in turn characterized the responding report as malicious and intentionally misleading. During the ensuing public meetings, the defendants made oral comments, published and distributed two flyers, and created signs voicing opposition to the facility. The plaintiffs alleged that the comments, signs and flyers were defamatory, delayed opening of the facility, and harmed its profitability. Default judgment was obtained against one defendant, with damages assessed at $2,000. The remainder of the claims were dismissed as either unsupported, or on the basis the statements were not defamatory. The plaintiffs appealed.

HELD: Appeals dismissed. The trial judge applied the correct legal test in determining whether there was a defamatory meaning to the publications. The judge did not err in law in finding that the words in the flyers and opposition report were capable of bearing a defamatory meaning, and did not make a palpable and overriding error in concluding that the words were not in fact defamatory. With respect to the oral statements at the public meetings and the flyers, the judge did not improperly rely upon the surrounding context of public controversy and debate to lessen the reputational impact of the statements. In addition, the trial judge did not conflate the defences of fair comment and truth or justification or attack privilege, with her analysis of the statements' defamatory meaning. The judge's assessment of damages at $2,000 as fair and just, and the refusal of the plaintiffs' claim for aggravated damages was not based on a mistaken or wrong principle of law, and was not so low so as to represent a wholly erroneous estimate of the damage suffered.

Northwest Organics Limited Partnership v. Fandrich, [2019] B.C.J. No. 1606, British Columbia Court of Appeal, M.V. Newbury, J.E.D. Savage and G. Dickson JJ.A., August 27, 2019. Digest No. TLD-October72019004