The recent Supreme Court of Canada decision of Breeden v. Black, 2012 SCC 19, [2012] 1 S.C.R. 666 has reaffirmed that the tort of defamation occurs where the defamatory comment is published (i.e. read by a third party), even when publication takes place on the internet. Therefore, if a defamatory statement is published on the internet and accessed in a Canadian jurisdiction, the defamed party may be able to sue in Canada even if they are not a Canadian resident, and the defamatory publication was uploaded in a foreign jurisdiction. The SCC recognized that this could give rise to libel tourism; that is, foreign litigants bringing defamation actions in Canadian courts. This is of particular concern given the “plaintiff-friendly” defamation laws in…
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On September 28, 2012, Madam Justice Adair dismissed an action in defamation by Mainstream Canada against the defendant Don Staniford carrying on business as The Global Alliance Against Industrial Aquaculture. The plaintiff, Mainstream, is the second largest producer of farmed salmon in British Columbia. On January 31, 2011, the defendant Don Staniford, an environmental activist, launched a public campaign attacking the salmon farming industry. The campaign was centred on a press release prepared by Staniford which included four mock cigarette packages bearing warnings such as “Salmon Farming Kills,” and “Salmon Farming Seriously Damages Health.” This press release was sent to media outlets and posted on a website, where more examples of mock cigarette packages were displayed bearing similar messages. Mainstream…
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In the recent judgment of William v. Kelowna (City) et al, 2012 BCSC 421, Mr. Justice Rogers dismissed an action in defamation and negligence against the City of Kelowna. The plaintiff, Ms. William, alleged that an employee of the City had unlawfully disclosed her criminal record check to Interior Health, causing damage to her reputation in the healthcare community, and resulting in Interior Health revoking a conditional offer of employment. Ms. William attended at the Kelowna RCMP office and completed a form authorizing the criminal record check. A City of Kelowna employee undertook a search of police files, which revealed that Ms. William had been involved in a police incident where she was found outside of her apartment in a…
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Traditionally, the personal life of an employee has been just that: personal. Employers are generally not entitled to pry or take issue with the manner in which employees conduct themselves outside of working hours. That said, the private life of an employee may indeed turn out to be the employer’s business in certain circumstances. Employees owe a duty of loyalty and faithful service to their employers which prohibits them from disparaging their employer or superiors. For the most part, few employers in the past attempted to enforce their legal right to prevent employees from making a negative comment to a colleague, or venting to friends about workplace issues in a social setting. This is no longer the case. In the…
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British Columbia Medical Association v. Aviva, 2011 BCSC 1399, decision rendered October 19, 2011 A plaintiff cannot circumvent a defendant’s insurance coverage for defamation by simply pleading that the publications were made with an intent to injure and with knowledge of their falsity. The British Columbia Supreme Court held on October 19, 2011 that such pleadings will not enable a defendant’s insurer to deny coverage by relying on the common policy clause which excludes coverage for acts of intentional wrongdoing. The British Columbia Medical Association and its board members were sued in defamation. Although they had insurance coverage for defamation claims, their insurer, Aviva, denied coverage by relying on the exclusion clause for acts of intentional wrongdoing. The insurer based…
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The experience of the past ten years confirms that very large damages in defamation cases in British Columbia are relatively rare. We can count only five cases since 2001 in which the damage awards were $200,000 or higher. In contrast most damage awards for defamation in this Province remain between $10,000 to $40,000 at the lower end of the range and up to $150,000 at the higher end of what we refer to as the “conventional range”. The overwhelming majority of assessments fall within the “low” ($10,000 to $40,000) and “mid-level” ($60,000 to $80,000) range, with relatively few at the higher level ($100,000 to $150,000). As to what explains the wide differences in the level of damages, the seriousness of…
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The risk of being found liable in defamation for hyperlinking to another person’s defamatory publication lingers even after the Supreme Court of Canada decision of Crookes v. Newton, 2011 SCC 47. Many articles reporting on this recent Supreme Court of Canada decision have limited their commentary to the main ruling of Madam Justice Abella, adopted by five judges, that “a hyperlink, by itself, should never be seen as ‘publication’ of the content to which it refers [emphasis added].”[i] Given that a plaintiff cannot make out a prima facie case in defamation without establishing publication, commentators have equated this judgment with a finding that no liability will result for hyperlinking to defamatory content. In doing so, inadequate attention is being given…
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The limitation period to commence an action for defamation in British Columbia is two years from the time of the publication, regardless of when the plaintiff becomes aware of the libel or slander. Unlike some other torts, a claimant in a defamation action will have great difficulty convincing a British Columbia Court that the two year limitation period in which to commence an action should not start running until the plaintiff becomes aware of the defamatory publication. While section 6 of the British Columbia Limitation Act enables plaintiffs in certain types of actions to argue that a limitation period does not commence to run until the necessary facts are “within the plaintiff’s means of knowledge,” this section does not apply…
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