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DEFAMATION - Allegations of dishonesty in business - Fair comment

Tuesday, January 14, 2020 @ 8:46 AM  

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Appeal by the plaintiffs from the dismissal of their defamation action. The CBC broadcast a story about the respondent’s dispute with the appellants regarding a home renovation contract. The appellants’ original estimate did not include the cost of building a functioning sauna. After the parties signed the contract, the misunderstanding of the scope of the work surfaced and the appellants provided a revised, higher estimate that included the sauna. The respondent refused to go through with the contract and demanded a full refund of her deposit. In her interview, the respondent stated more than once that the Final Forecast provided by the appellants doubled the price for the same work covered by the original estimate. The appellants claimed that the words published in the story and review conveyed the meaning that the appellants scammed the respondent by using deceitful bait and switch tactics that it regularly employed. The trial judge found that the words published, while capable of being defamatory, were not in fact defamatory. In the alternative, the judge found that the respondent was entitled to rely on the defence of fair comment.

HELD: Appeal allowed. New trial ordered. The judge erred in finding that the impugned statements were not defamatory and in applying the legal test when considering whether the defence of fair comment was available to the respondent. The statement that the appellants, as building contractors, doubled the price for the same work after a contract was signed, was capable of being defamatory. It strongly suggested dishonesty in their business practices. The trial judge did not apply the proper test when considering if the impugned statements were in fact defamatory. Instead of applying the standard of a reasonable or ordinary member of the public and choosing between the extremes of an unusually suspicious or unusually naïve person, the judge considered she was obliged to choose the least harsh interpretation of the impugned statements. The judge erred in finding that there was a temporal connection between the discussion about the non-disclosure agreement in exchange for the refund and the discussion about doing this before. The two discussions were not linked together as suggested by the judge. This was a palpable error and was also overriding because it was central to the judge’s reasoning about the interpretation of the respondent’s statements in the interview. The omission of the proved facts about the price difference and the respondent’s knowledge of that difference rendered two of the respondent’s comments indefensible as fair comment. The new estimate was not for the same work or the same job and the respondent could not subjectively believe it was for the same work or the same job because she knew the reason for the price increase. The Final Forecast included the price for a functioning sauna. The statements regarding double the price for the same work could not meet the test of fair comment as they were not based on the facts that went to the pith and substance of the comments but contradicted the underlying facts.

Level One Construction Ltd. v. Burnham, [2019] B.C.J. No. 2191, British Columbia Court of Appeal, R.Goepel, G.B. Butler and P. Abrioux JJ.A., November 20, 2019. Digest No. TLD-January132020003