CIVIL PROCEDURE - Costs - Particular orders - Special orders - For reprehensible or inefficient conduct

Appeal by the plaintiff corporation from the dismissal of its defamation action and the award of special costs to the respondent. The appellant, a large mining company, had twice unsuccessfully sought federal environmental approval for an open-pit mine. Both of its mine proposals were rejected by the federal Minister of the Environment, following two comprehensive reports by federal review panels appointed to assess the environment effects of the proposed mine and make recommendations. The respondent was a non-profit society that provided environmental news and information to the public through its website. The appellant alleged that three articles posted on the respondent’s website in relation to the appellant’s proposed open-pit mine, and two articles alleging the present lawsuit was used by the appellant to silence its critics exercising their democratic rights, were defamatory. The trial judge found that a reasonable and ordinary member of the public would expect that a large project in which public input was invited would give rise to discussion, debate and controversy and that the first three articles focused on the mine proposal, rather than on the appellant as a corporation or its directors or executives. The trial judge found that the last two articles were defamatory with respect to the appellant’s lawsuit, but held that the defence of fair comment applied. The trial judge awarded the respondent special costs on the basis that the appellant had continued to seek punitive damages after the release of the review panel’s report which showed that reasonable individuals with specific expertise could conclude that the proposed mine would result in significant adverse environmental effects.

HELD: Appeal allowed in part. The award of special costs was set aside. The trial judge was alive to the test he needed to apply to determine whether defamation had been established and he applied the correct test when he made his findings. There was no error in the trial judge’s conclusion that the impugned words in the first three articles were not defamatory. When the fourth and fifth articles were considered in the context of the first three, which were all on the website and did not require a dedicated reader to search and discover, it was clear that the trial judge did not commit a palpable and overriding error in finding that the defence of fair comment was made out. The subject of the comment, a proposed open pit mine, was clearly a matter of public interest. The factual foundation was established, and a person could hold an honest opinion based on that factual foundation that the lawsuit was intended to stifle debate over the construction of the proposed mine. Punitive damages were based on a finding of malice which defeated fair comment. In order to find that continuing the plea of malice was reprehensible, the trial judge needed to find that there was no merit in that plea, which he did not. He could not, therefore, order special costs on the basis that the pleading seeking punitive damages should have been withdrawn. The trial judge did not find that the lawsuit was a strategic lawsuit against public participation, and he did not find that the appellant had an improper collateral purpose in filing the defamation claim. Without such a finding, there was no basis for the trial judge to conclude that special costs should be ordered in this case.

Taseko Mines Ltd. v. Western Canada Wilderness Committee, [2017] B.C.J. No. 2541, British Columbia Court of Appeal, S.D. Frankel, E.A. Bennett and R. Goepel JJ.A., December 13, 2017. Digest No. TLD-January82018008