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Lawful Criticism or Defamation – It’s All About Context
Posted in Defamation

The B.C. Supreme Court recently dismissed the plaintiffs’ claims in Northwest Organics, Limited Partnership v Roest, 2018 BCSC 866, a defamation action relating to a commercial composting facility. The claim arose after years of conflict between residents of a rural community who opposed construction of the facility and the facility’s owners. The residents had engaged in various public campaigns to voice their concerns about the risks associated with the facility and the unpleasant odours it produced once in operation. The owners claimed that these public expressions of opposition were defamatory. Specifically, they alleged that the defendants published defamatory remarks by distributing flyers around town, circulating copies of an expert report recommending against construction of the facility, sharing the report with a reporter, voicing opposition at public meetings, placing critical signs along the only paved road into town, filing complaints with government officials, and posting messages on Facebook.

The court dismissed several of the allegations on a preliminary basis because the pleadings failed to provide sufficient particulars.  It dismissed the remaining claims on the basis that the statements did not have a defamatory meaning. In making this finding, the court relied on the context in which the statements were made, including the ongoing public controversy over the facility and the plaintiffs’ own strongly voiced opinions.

Context and assessing whether statements have a defamatory meaning

To succeed in a defamation claim, a plaintiff must prove the defendants words, spoken or written: (1) have a defamatory meaning, (2) refer to the plaintiff, and (3) were “published” – i.e. communicated to at least one person other than the plaintiff. The second and third requirements were easily established in this case and the court’s decision turned on whether the statements had a defamatory meaning.

When determining whether a statement has a defamatory meaning, the court must consider whether the statements would “tend to lower the plaintiff’s reputation in the eyes of a reasonable person.” Referring to the BC Court of Appeal’s recent decision in Taseko Mines Limited v Western Canada Wilderness Committee, 2017 BCCA 431, the court confirmed that this question  requires a contextual assessment, “…that can include, but is not limited to, consideration of the extent and nature of any public controversy surrounding the issue and the plaintiff’s participation in it.” Context can help distinguish statements that are merely derogatory, offensive or insulting statements from defamatory ones.

Applying this approach to each alleged statement, the court relied on the nature of the compost facility’s operations, the ongoing debate around it, and the owners’ responses to criticism in finding that none of the statements would tend to lower the owners’ reputation from the perspective of a reasonable and informed person. For example, statements that raised concerns about risks typically associated with compost facilities, such as odour, could not be defamatory of a composting facility.  The court also found that a reasonable person would be aware of the heated controversy and debate regarding the facility and would view many of the statements simply as expressions of opposition or protest to a compost facility, not as statements capable of lowering the owners’ reputation. Finally, the court found that a reasonable person would understand that several of the communications, including circulation of the expert report and flyers, were in direct response to the owners’ own publications about the facility. Although the report and flyers contained strong (and likely exaggerated) language, the court found that this must be considered in the context of similarly strong language used in the owners’ publications, noting “one cannot sling mud and then complain to the courts about being hit by mud.”

The importance of pleading particulars in defamation cases

The fact that several of the allegations were dismissed on a preliminary basis due to insufficient particulars highlights the importance of pleadings in a defamation action.  Material facts in a defamation claim include “what was said or written, where and when it was said or written, by whom and to whom.” For some claims the plaintiffs had failed to plead precise dates of publication (pleading publication in “the fall of 2010” was insufficient), failed to identify what passages of the report they alleged were defamatory, and failed to identify the specific recipients of the communications made to various government officials. The court noted that while it might seem unfair to dismiss an allegation on the basis of insufficient pleadings because this means the claim will not be adjudicated on its merits, this must be balanced with the unfairness to defendants who, due to a lack of particulars, did not know the exact claim they had to meet.

With thanks to summer student Jane Mayfield for her assistance in drafting this post.

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