2009 BCCA 61 = Creative Salmon Company Ltd. v. Staniford

COURT OF APPEAL FOR = BRITISH COLUMBIA

Citation:

Creative Salmon=20 Company Ltd. v. Staniford,

2009 BCCA=20 61

Date: 20090213

Docket: = CA034801

Between:

Creative = Salmon Company=20 Ltd.

Respondent

(Plaintiff)

And

Don Staniford

Appellant

(Defendant)

Before:

The = Honourable Madam=20 Justice Levine

The = Honourable Mr.=20 Justice Frankel

The = Honourable Mr.=20 Justice Tysoe

D.F. = Sutherland and D.L.=20 Kripp

Counsel for the = Appellant

D.G. = Sanderson,=20 Q.C.

Counsel for the = Respondent

Place and = Date of=20 Hearing:

Vancouver, British=20 Columbia

December 15, 2008

Place and = Date of=20 Judgment:

Vancouver, British=20 Columbia

February 13, = 2009

Written = Reasons=20 by:

The = Honourable Mr.=20 Justice Tysoe

Concurred = in=20 by:

The = Honourable Madam=20 Justice Levine

The = Honourable Mr.=20 Justice Frankel

Reasons for Judgment of the Honourable Mr. = Justice=20 Tysoe:

Introduction

[1] = ; =20 The defendant, Don Staniford, appeals from the order dated January = 15, 2007,=20 awarding the plaintiff, Creative Salmon Company Ltd. (=93Creative = Salmon=94),=20 $10,000 general damages and $5,000 aggravated damages for defamatory = comments=20 made by Mr. Staniford about Creative Salmon = in two=20 press releases issued in June 2005.

[2] = ; =20 In her reasons for judgment, = indexed as=20 2007 BCSC 62, the trial judge found that the press releases defamed = Creative=20 Salmon and the defence of fair comment was not available to Mr. Staniford. Since the release of the reasons = for=20 judgment, the Supreme Court of Canada has modified the test for the = defence of=20 fair comment in its decision in the case of WIC Radio Ltd. v. = Simpson,=20 2008 SCC 40, 293 D.L.R. (4th) 513 (sub. nom. Simpson v. Mair, 2006 BCCA 287, 55 B.C.L.R. (4th) = 30).

[3] = ; =20 For the reasons that follow, I = would allow=20 the appeal and order a new trial.

Background

[4] = ; =20 Creative Salmon is in the = business of fish=20 farming in the Clayoquot Sound on the west = coast of=20 Vancouver Island. It is committed to farming salmon with minimal=20 environmental impact. It is a member of the Pacific Organic = Seafood=20 Association, an organization that is seeking to become a certification = body for=20 organic seafood producers. If the organization is successful in = becoming a=20 certification body, then Creative Salmon intends to apply for organic=20 certification.

[5] = ; =20 At the time of the press = releases, Creative=20 Salmon farmed only indigenous species of salmon, which, as I understand = it, are=20 more susceptible to disease than Atlantic salmon. It had not used=20 antibiotics on the fish it sold for public consumption since 2001, and = it had=20 developed several means to reduce the stress that leads to disease, = including=20 keeping fewer fish in each pen, minimizing movement of fish between = pens, and=20 taking steps to ensure that all of the fish were adequately fed. = Creative=20 Salmon took pride in its non-use of antibiotics and claimed on its = website to be=20 antibiotic free.

[6] = ; =20 Creative Salmon did continue to = use=20 antibiotics on its brood stock as a protection against bacterial kidney=20 disease. The brood stock was kept separate from the production = fish sold=20 to the public.

[7] = ; =20 Mr. Staniford is=20 a committed environmentalist with a particular focus on fish = farming. He=20 has campaigned against open-net salmon farming since 1998 and worked in = Scotland=20 as the aquaculture campaigner for the Friends of the Earth and the = Salmon Farm=20 Protest Group. In November 2004, Mr. Staniford=20 came to Canada to become employed as aquaculture campaigner for Friends = of Clayoquot Sound, a non-profit society with a = mission to=20 protect the forest and ocean of Clayoquot = Sound. =20 The society is opposed to open-net salmon farming and to organic = certification=20 of farmed salmon. Mr. Staniford=92s = role was to=20 build government and public opposition to open-net salmon farming in the = Clayoquot Sound, including opposition in the = organic=20 community to the concept of labelling any type of open-net salmon = farming as=20 being organic.

[8] = ; =20 Mr. Staniford=20 learned two pieces of information that gave rise to the two press = releases in=20 question, which were issued on June 24, 2005 and June 27, 2005. = The first=20 piece of information was a report that the Canadian Food Inspection = Agency had=20 found trace amounts of an antifungal agent called malachite green in a = Creative=20 Salmon fish (0.33 parts per billion). Malachite green was = historically=20 used in hatcheries but, at the time of the first press release, it was = not=20 approved for use in fish intended for human consumption in = Canada.

[9] = ; =20 Malachite green has also been = used as an=20 industrial dye by, among others, pulp and paper mills. To Mr. = Staniford=92s knowledge, malachite green takes a = long time to=20 break down in water, and it is possible for a fish to become = contaminated with=20 malachite green from the waters of the Pacific Ocean.

[10] = ;=20 Creative Salmon did not use = malachite green=20 in its fish farming enterprise. It voluntarily suspended its fish = sales=20 upon being advised of the finding of malachite green so that it could=20 investigate the matter. It was at this point that the Friends of = Clayoquot Sound issued the first press release, = which was=20 authored by Mr. Staniford.

[11] = ;=20 The relevant portion of the first = press=20 release was as follows:

Creative Salmon Goes Green

- Clayoquot Sound = factory=20 closed due to chemical contamination?

Tofino, BC =96=20 Has Creative Salmon suspended sales of farmed salmon after testing = positive for=20 the carcinogenic fungicide malachite green? =85

Don=20 Staniford, Friends of Clayoquot Sound aquaculture campaigner, = said:

=93If=20 malachite green contamination is confirmed, this blows out of the water=20 Creative=92s claims to be =91organic=92 and chemical-free. = Creative Salmon must=20 come clean on malachite green. Sea cage salmon farming in the = Clayoquot Sound UNESCO Biosphere Reserve is a = threat to both=20 public safety and to the health of wild salmon and the pristine ocean=20 forest.=94

[12] = ;=20 Creative Salmon=92s subsequent = investigation=20 confirmed that none of its feed suppliers or its contracted hatchery = used=20 malachite green. Samples of its fish were sent to be tested for = the=20 presence of malachite green, and the results received were = negative. It=20 resumed sales of its salmon on June 30, 2005, and it queried whether the = finding=20 of the Canadian Food Inspection Agency was an error.

[13] = ;=20 The second piece of information = learned by=20 Mr. Staniford came in the form of a response = to a=20 freedom of information request made to the Ministry of = Environment. The=20 response disclosed that Creative Salmon reported to the Ministry that it = had=20 used in the range of 230 to 250 kilograms of antibiotics at three farm = sites in=20 2004.

[14] = ;=20 Mr. Staniford was=20 confused when he received this information because it did not seem = consistent=20 with statements on Creative Salmon=92s website. He did not know = whether or=20 not the antibiotics had been given to Creative Salmon=92s brood stock or = to its=20 production fish because the response from the Ministry did not = distinguish=20 between the two types of fish.

[15] = ;=20 Despite his confusion and without = making an=20 inquiry of Creative Salmon, Mr. Staniford=20 authored the second press release, the relevant portions of which read = as=20 follows:

Creative=92s =91Organic=92 Antibiotic Salmon = Scam

- FOCS lodges =91Deceptive Marketing = Practices=92 complaint=20 with the Competition Bureau

Tofino, BC =96=20 Just a week after Creative Salmon closed its Clayoquot=20 Sound-based factory due to malachite green contamination, Creative = Salmon is=20 exposed by information supplied by the Ministry of Environment (MoE) as a liar and a consumer fraud. Data on = chemical=20 use in Clayoquot Sound were obtained by = Friends of=20 Clayoquot Sound last week under Canada=92s = Freedom of=20 Information laws. The MoE documents, = dated 20th=20 June 2005, reveal that during 2004 nearly a quarter of a tonne of = antibiotics=20 (245.01 kg) were used by Creative Salmon in the Clayoquot Sound UNESCO Bioshphere=20 Reserve: =85

Despite=20 this evidence, Creative Salmon (www.creativesalmon.com) still = claims:

-=93The=20 fish that Creative Salmon sells [have] never been fed = antibiotic=94

-=93Fish=20 are grown to harvest size following our organic standards, in low = density net=20 pens without the use of antibiotics=94

-=93In=20 fact Creative Salmon has been antibiotic free since Oct 17, = 2001=94

-=931349=20 days antibiotic free=94

Don=20 Staniford, Friends of Clayoquot Sound aquaculture campaigner, = said:

=93Japanese-funded Creative Salmon is being = dangerously=20 creative in its definition of =91organic=92 salmon farming. Last = week,=20 Creative=92s =91green=92 credentials were exposed when its Tofino-based factory closed because of malachite = green=20 contamination. And now its reputation has been well and truly = shattered=20 with the Ministry of the Environment=92s damning revelations of = antibiotic=20 use=94.

FOCS is=20 lodging a formal complaint against Creative Salmon with the Competition = Bureau=20 under the Deceptive Marketing Practices part of the Competition = Act.

=93If=20 Creative Salmon is telling such blatant lies, how is the public expected = to=20 believe the company=92s claims to be =91organic=92?=94 Staniford said. =93By discharging = contaminated wastes,=20 Creative is endangering the pristine marine environment of Clayoquot Sound. And by making spurious = claims to be=20 =91green=92, it is endangering the reputation of honest local business = people who=20 depend on the integrity of the UNESCO Biosphere Reserve. Consumers = and=20 locals alike have apparently been lied to and Creative must surely be = held=20 accountable.=94

[footnotes omitted]

[16] = ;=20 In its statement of claim, = Creative Salmon=20 alleged that Mr. Staniford had falsely and = maliciously=20 published defamatory statements about it in the two press = releases. It=20 claimed general, special, aggravated and punitive damages.

[17] = ;=20 In her reasons for judgment, the = trial=20 judge found that the two press releases were published by Mr. Staniford, were defamatory of Creative Salmon and = were=20 not justified in the sense of being true. None of these = findings is=20 challenged on appeal.

[18] = ;=20 The judge held that the defence = of fair=20 comment was not available in respect of either of the press = releases. =20 She ruled that the defence was not available in respect of the = defamatory=20 comments in the first press release because =93Mr. Staniford=92s statements that Creative Salmon was = dishonest=20 were not warranted by the facts known to Mr. Staniford=20 at the time he made the statements in the June 24th press = release=94 (para. 44). She held that the defence was not = available=20 in respect of the defamatory comments in the second press release = because=20 =93Mr. Staniford has not met the burden = of=20 establishing that the words complained of in the June 27th press release = are=20 fair comment based on facts that are true, and made honestly and = fairly=94 (para. 67).

[19] = ;=20 In view of the holding that the = defence of=20 fair comment was not available, the trial judge concluded there was no = need to=20 address the issue of whether malice would have defeated such a = defence. =20 However, she did deal with the issue of malice in connection with the = claim for=20 aggravated damages, and she held that Mr. Staniford had been motivated by actual = malice. The=20 judge awarded aggravated damages of $5,000, as well as general damages = of=20 $10,000. The award of general damages was relatively modest = because there=20 was no evidence at trial that Creative Salmon had been unable to sell = any of its=20 fish as a result of the press releases. A cross-appeal by Creative = Salmon=20 in respect of the amount of the damages has been abandoned.

Positions Of The Parties

[20] = ;=20 Mr. Staniford=20 says the trial judge misstated part of the pre-WIC Radio test for = the=20 defence of fair comment and that, as a result, she did not properly = analyze the=20 defence. He also argues the judge failed to make findings as to = what words=20 in the press releases were statements of fact and what words were = comment, with=20 the consequence that she failed to make a ruling as to whether the sting = of the=20 imputations was fact or comment. Finally, Mr. Staniford submits the judge erred in finding that = he was=20 motivated by malice.

[21] = ;=20 Mr. Staniford=20 asks this Court to allow the appeal and to dismiss Creative Salmon=92s = action or,=20 alternatively, to remit the matter back to the Supreme Court. He = also=20 requests that the funds posted by him as security for the trial judgment = and=20 costs of the appeal be returned.

[22] = ;=20 Creative Salmon concedes the = trial judge=20 misstated the test for the defence of fair comment, but says that the = error is=20 immaterial because the judge found that Mr. Staniford did not have an honest belief in the = defamatory=20 statements he made in the press releases. Creative Salmon says = that the=20 defence of fair comment is not available to Mr. Staniford under the test formulated in WIC = Radio for=20 three reasons: (i) the trial = judge found as=20 a fact that Mr. Staniford was actuated by = malice;=20 (ii) no person could honestly have expressed the defamatory = comments on the=20 proven facts; and (iii) Mr. Staniford=92s=20 comments were not based on facts truly stated.

Discussion

The WIC Radio = Decision

[23] = ;=20 Before discussing the reasons of = the trial=20 judge, it is necessary to briefly describe the changes brought about by = WIC=20 Radio. The previous test for the defence of fair comment, as = set out=20 in the dissenting judgment of Mr. Justice Dickson in Cherneskey v. Armadale=20 Publishers Ltd., [1979] 1 S.C.R. 1067, 90 D.L.R. (3d) 321, and = endorsed by=20 Mr. Justice Binnie in WIC Radio at = para. 28, together with an addition stipulated by = the=20 majority judgments in Chernesky, may = be=20 paraphrased as follows:

(a) = the=20 comment must be on a matter of public interest;

(b) = the=20 comment must be based on fact;

(d) = the=20 comment must satisfy the following objective test: could any = [fair-minded]=20 person honestly express the opinion on the proved facts?;

(e) = the=20 comment must satisfy the following subjective test: was the comment an = honest=20 expression of the defendant=92s opinion?; and

(f) the=20 defence can be defeated if the plaintiff proves that the defendant was=20 [subjectively] actuated by express malice.

I have included the word =93fair-minded=94 in = item (d) in=20 brackets because there was a debate in the authorities preceding WIC=20 Radio whether the hypothetical person in the objective test should = be=20 required to be a fair-minded person. The word =93subjectively=94 = in item (f)=20 is in brackets because, although it was not included as part of the test = in=20 Chernesky, it was added in brackets = by Mr.=20 Justice Binnie in WIC Radio when he = was setting=20 out the test from Mr. Justice Dickson=92s dissenting reasons.

[24] = ;=20 The problem confronting the = Supreme Court=20 of Canada in WIC Radio was that the defendant had intended to = convey one=20 meaning in his comments but was objectively held to have conveyed a = different=20 meaning. He honestly believed the opinion he intended to convey = but did=20 not honestly believe the meaning he was taken to have conveyed. = For this=20 and other reasons, the Supreme Court of Canada decided that the = =93subjective=20 honest belief=94 requirement should no longer be part of the test, = except in the=20 indirect sense that it is a consideration in determining whether the = defendant=20 was actuated by malice. The Court also decided that the objective = element=20 of the test should make reference to any person, no matter how obstinate = or=20 prejudiced, rather than a fair-minded person.

[25] = ;=20 Accordingly, the test for the = defence of=20 fair comment may now be stated as follows:

(a) = the=20 comment must be on a matter of public interest;

(b) = the=20 comment must be based on fact;

(d) = the=20 comment must satisfy the following objective test: could any person = honestly=20 express the opinion on the proved facts?; and

(e) = the=20 defence can be defeated if the plaintiff proves that the defendant was=20 subjectively actuated by express malice.

Errors by the Trial Judge

[26] = ;=20 Creative Salmon concedes the = trial judge=20 erred when she articulated the =93subjective honest belief=94 = requirement of the=20 pre-WIC Radio test in stating at para. 39=20 that Mr. Staniford was required to satisfy = the=20 following:

(i) = subjective honesty of belief in the defamatory statement, that is, the = comment=20 is one which a fair minded person would honestly make on the facts=20 proved.

The trial judge erred by interposing an = objective=20 element into the subjective test.

[27] = ;=20 Creative Salmon says the judge = did not=20 carry the error forward into her reasoning because she concluded that = Mr. Staniford did not honestly believe the comments he = made in=20 the two press releases. I do not agree with this assertion. = For=20 example, the judge=92s reason for concluding that the defence was not = available in=20 respect of the first press release was that =93Mr. Staniford=92s statements that Creative Salmon was = dishonest=20 were not warranted by the facts known to Mr. Staniford=20 at the time he made the statements in the June 24th press = release.=94 Her=20 use of the word =93warranted=94 indicates that she was applying an = objective=20 standard. It is also not entirely clear whether the judge repeated = this=20 error by injecting an objective element when she concluded that Mr. = Staniford had not met the onus of establishing the = defence=20 of fair comment in respect of the second press release.

[28] = ;=20 However, the error of the trial = judge in=20 this regard has been overtaken by the evolution of the law brought about = by=20 WIC Radio. The judge has retroactively been placed in error = by=20 WIC Radio in the following two respects:

(a) = she=20 required Mr. Staniford to satisfy the = =93subjective=20 honest belief=94 requirement when it is no longer part of the test for = the defence=20 of fair comment; and

(b) = the=20 hypothetical person she used in stating the objective test was a =93fair = minded=94=20 person, not any person (no matter how obstinate or = prejudiced).

With respect to the second of these errors, = the trial=20 judge did correctly refer, at para. 39(ii), to =93a=20 person=94 in stating the objective test, but she made reference, at = para. 41(iii), to a =93fair minded person=94 when = she was=20 setting out the items Mr. Staniford was = required=20 to establish in respect of the first press release.

[29] = ;=20 In view of these errors, the = issue becomes=20 whether other findings of the trial judge sustain her decision (as = argued by=20 Creative Salmon) or whether these and other errors put this Court in a = position=20 to dismiss Creative Salmon=92s action (as argued by Mr. Staniford). A third option is that the = decision cannot=20 stand and a new trial is required. I will begin by considering = Creative=20 Salmon=92s three grounds for sustaining the decision because, if it is = correct on=20 any of the three grounds, the appeal must be dismissed.

(i) =20 Malice

[30] = ;=20 Creative Salmon submits that Mr. = Staniford=92s reliance on the defence of fair = comment is=20 defeated by malice. One of Mr. Staniford=92s=20 grounds of appeal is that the trial judge erred in finding that he was = actuated=20 by malice.

[31] = ;=20 The judge did not consider the = topic of=20 malice in connection with the defence of fair comment but, rather, she = relied=20 upon it in awarding aggravated damages against Mr. Staniford. It is conceded by Mr. Staniford that the meaning of the word = =93malice=94 is the same=20 for each of these two purposes.

[32] = ;=20 Creative Salmon says that malice = was proven=20 because the trial judge concluded that Mr. Staniford=20 made statements he knew to be untrue and failed to disclose information = that=20 resulted in a misleading statement. It relies on the following = passage=20 from Mr. Justice Cory=92s majority judgment in Botiuk v. Toronto Free Press = Publications=20 Ltd., [1995] 3 S.C.R. 3, 126 D.L.R. (4th) 609:

79 = ...=20 [Qualified privilege] may be defeated in two ways. The first = arises if the=20 dominant motive for publishing is actual or express malice. Malice = is=20 commonly understood as ill will toward someone, but it also relates to = any=20 indirect motive which conflicts with the sense of duty created by the=20 occasion. Malice may be established by showing that the defendant = either=20 knew that he was not telling the truth, or was reckless in that=20 regard.

Malice for the purpose of defeating the = defence of=20 qualified privilege is the same as malice for the purpose of defeating = the=20 defence of fair comment.

[33] = ;=20 I do not interpret the above = passage to=20 equate lack of honest belief to malice. In my opinion, malice is a = state=20 of mind, and the passage stands only for the proposition that a trier of fact may draw an inference of malice if = the=20 defendant knew he or she was not telling the truth or was reckless as to = the=20 truth of the statement.

[34] = ;=20 A comment similar to the above = passage was=20 also made by Mr. Justice Dickson in Cherneskey=20 (at 1099). However, in WIC Radio, Mr. Justice LeBel added the following qualification, after = quoting the=20 comment in Cherneskey:

102 I adopt this = definition, although I wish to emphasize that while proof that the = comment is=20 not the honest expression of the publisher=92s real opinion may be = evidence of=20 malice, it is not determinative. Indeed, there may be = non-malicious and=20 valid reasons for publishing views one does not personally = hold.

I agree with this qualification. It is = open to the=20 trier of fact to draw an inference of malice = from a=20 lack of honest belief, but there may be circumstances where malice is = not the=20 dominant motive of the defendant even though he or she does not have an = honest=20 belief in the comment they expressed. In Gatley on Libel and Slander, 10th = ed. (London:=20 Sweet & Maxwell, 2004) at para. 16.4, = the authors=20 express the view that =93malice arises only where the defendant acts = from an=20 improper motive: knowledge of or recklessness as to falsity is not a = separate=20 head of malice, it is simply a way of establishing that the defendant = was acting=20 from an improper motive...=94.

[35] = ;=20 If Creative Salmon is correct in = its=20 position that the trial judge concluded that Mr. Staniford had been actuated by malice because she = found he=20 made statements he knew to be untrue, this Court could not interfere = with the=20 conclusion unless her finding of fact constituted a palpable and = overriding=20 error: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. = 235.

[36] = ;=20 As a result of the error made by = the judge=20 in her articulation of the =93honest belief=94 requirement of the = pre-WIC Radio=20 test, I am not satisfied the judge did find that Mr. Staniford did not honestly believe the opinions he = expressed=20 in the two press releases. More importantly, however, it is clear = the=20 judge did not rely on a lack of honest belief in making her finding of=20 malice. She stated her reason for making the finding in the = following=20 paragraph of her reasons:

[93] In my view, Mr. Staniford was motivated by actual malice in that = he was=20 trying to build up opposition to Creative Salmon as a company that was=20 attempting to obtain organic certification for its fish. In the=20 circumstances an award of aggravated damages of $5,000 is=20 appropriate.

In my view, this motivation does not = constitute malice=20 at law.

[37] = ;=20 In Botiuk=20 at para. 79, malice was defined to include = =93ill will=94=20 and =93any indirect motive which conflicts with the sense of duty = created by the=20 occasion [in the case of qualified privilege]=94. The definition = of malice=20 stated by Mr. Justice Dickson in Cherneskey=20 at 1099, and adopted by Mr. Justice LeBel in=20 WIC Radio at para. 102, = includes =93spite=20 or ill will=94 and =93any indirect motive or ulterior = purpose=94.

[38] = ;=20 The trial judge did not make a = finding that=20 Mr. Staniford was motivated by ill will or=20 spite. Thus, the finding of malice against Mr. Staniford can only stand if it involved a finding = that he=20 was motivated by an indirect motive or an ulterior purpose. In = this=20 regard, the indirect motive or ulterior purpose must be indirect or = ulterior to=20 the objective of the defence of fair comment.

[39] = ;=20 The objective of the defence is = described=20 as follows in Gatley on Libel and=20 Slander at para. 12.1:

There=20 are matters on which the public has a legitimate interest or with which = it is=20 legitimately concerned and on such matters it is desirable that all = should be=20 able to comment freely =85

In R.D. McConchie and D.A. Potts, Canadian Libel and = Slander=20 Actions (Toronto: Irwin Law, 2004) at 335, the authors begin the = chapter on=20 fair comment with the sentence: =93The defence of fair=20 comment is a cornerstone of free speech in Canada.=94

[40] = ;=20 In the=20 present case, the trial judge held that Mr. Staniford=20 was motivated by malice because he was trying to build up opposition to = Creative=20 Salmon obtaining organic certification for its fish. = Mr. Staniford and = his=20 employer, Friends of Clayoquot Sound, were = opposed to=20 open-net salmon farming in the Clayoquot = Sound. =20 They did not believe that open-net salmon farming should be regarded as = organic,=20 and they were opposed to the possibility of Creative Salmon=92s fish = products=20 being given an organic certification. Mr. Staniford was endeavouring to build up opposition=20 by=20 attempting to influence public opinion on the topic of organic = certification for=20 the product of open-net salmon farming, a matter of legitimate public=20 interest.

[41] = =20 The=20 protection of a person=92s ability to exercise his or her right to = freedom of=20 expression in order to attempt to influence public opinion on legitimate = public=20 issues is the objective of the defence of = fair=20 comment. The defence cannot be = defeated if Mr.=20 Staniford was doing the very thing that the = defence was designed to protect. What the = trial judge=20 found to be malice was not malice at law because her finding of Mr. = Staniford=92s motivation did not represent an = indirect motive=20 or ulterior purpose.

[42] = =20 I=20 would add that the trial judge did not make a finding that = Mr. Staniford=92s motive of building up opposition = against=20 Creative Salmon=92s efforts to obtain organic certification was his only = motivation. In order to defeat the defence of=20 fair comment, malice must be the dominant or overriding motive: see = Botiuk at para. = 79,=20 above, and Ward v. Clark, 2001 BCCA 724, [2002] 2 = W.W.R. 238=20 at para. 53. The trial judge = presumably did not=20 make a finding in this regard because she was dealing with the topic of=20 aggravated damages, and not the defence of = fair=20 comment, when she made the finding of malice.

[43] = =20 Creative Salmon = points to=20 evidence referred to by the trial judge (paras. 84,=20 86, 91, 92 and 93 of her reasons) and other evidence to support a = finding of=20 malice, implicitly urging us to make such a finding in the event we = conclude=20 that the reason given by the trial judge does not constitute = malice. Mr.=20 Staniford requests that Creative Salmon=92s = claim be=20 dismissed (provided that the other elements of the test for the defence of fair comment are satisfied). =

[44] = ;=20 Malice is a state of mind. = Only the=20 trier of fact can determine Mr. Staniford=92s state of mind when he published the = two press=20 releases. This Court cannot look to the evidence and make its own = finding=20 in this regard.

[45] = ;=20 Although the reason given by the = trial=20 judge does not constitute malice at law, it is my view that on the basis = of the=20 evidence before the trial judge it would be open to a trier of fact to make a finding of malice against = Mr. Staniford. Hence, it would not be = appropriate for this=20 Court to dismiss Creative Salmon=92s claim.

[46] = ;=20 As a=20 result, neither of the courses of action advocated by the parties is = open to=20 this Court. Although it is regrettable in view of the added = expense, I=20 believe there must be a new trial unless Creative Salmon is successful = on either=20 of its other two grounds for sustaining the trial judge=92s = decision.

(ii) The Objective Element of the=20 Test

[47] = ;=20 Creative Salmon submits that = although the=20 trial judge did not expressly consider the objective element of the test = for the=20 defence of fair comment, the defence must fail because no person could = honestly=20 believe the comments Mr. Staniford made = in the=20 two press releases. It may be that the judge did effectively = consider the=20 objective element when she was dealing with the misstated subjective = element of=20 the pre-WIC Radio test but, in any event, she was viewing it from = the=20 perspective of a fair-minded person, not from the viewpoint of any = person, as=20 required by WIC Radio.

[48] = ;=20 The objective element of the test = does not=20 require a determination of the state of mind of a particular = person. As a=20 result, unlike the situation with respect to a finding of actual malice, = this=20 Court is in the same position as the trial judge with respect to = assessing the=20 objective element on the facts proven at trial.

[49] = ;=20 In discussing the objective = element of the=20 test in WIC Radio, Mr. Justice Binnie = acknowledged that the threshold for satisfying it is not high: =

50 =20 Admittedly, the =93objective=94 test is not a high threshold for the = defendants to=20 meet, but nor is it in the public interest to deny the defence to a piece of devil=92s advocacy that the = writer may=20 have doubts about (but is quite capable of honest belief) which = contributes to=20 the debate on a matter of public interest.

51 =20 Of course, even the latitude allowed by the =93objective=94 honest = belief test may=20 be exceeded. =93Comment must be relevant to the facts to which it = is=20 addressed. It cannot be used as a cloak for mere invective=94;=20 Reynolds [Reynolds v. Times Newspapers Ltd., [1999] 4 All = E.R. 609=20 (H.L.)], at p. 615.

Mr. Justice = Rothstein did not=20 believe that a requirement for objective honest belief was even = necessary as an=20 element of the defence because =93I cannot = think of an=20 example in which the test of objective honest belief could not be met = once it is=20 demonstrated that the comment has a basis in true facts=94 (para. 110).

[50] = =20 In the=20 present case, the comments made by Mr. Staniford in=20 the two press releases were relevant to the facts that he was = addressing. =20 The fact addressed in the first press release was expressed in the form = of an=20 answer to the question =93[h]as Creative Salmon suspended sales of = farmed salmon=20 after testing positive for the carcinogenic fungicide malachite = green?=94 =20 The opinions were expressed on the basis of the contingency that = malachite green=20 contamination was confirmed. The opinions related to the expressed = fact,=20 and it cannot be said that no person, irrespective of how obstinate or=20 prejudiced they may be, could honestly hold those opinions.

[51] = =20 Similarly, the = opinions or=20 comments expressed in the second press release related to the facts that = were=20 being addressed. It was disclosed that Creative Salmon had = reported to the=20 Ministry of Environment that it had used a considerable quantity of = antibiotics=20 in 2004, while Creative Salmon claimed on its website that it had been=20 antibiotic free since 2001. Although the trial judge objectively = found=20 that the statements on the website related only to production fish sold = to the=20 public, the website was open to an interpretation that Creative Salmon = was=20 claiming it did not use antibiotics in any aspect of its = operations. The=20 comments expressed in the press release related to this potential = discrepancy,=20 and it cannot be concluded that no person could have honestly expressed = those=20 comments.

[52] = =20 Hence,=20 the objective element of the test for the defence has=20 been satisfied with respect to both of the press releases.

(iii) Facts = Truly=20 Stated

[53] = =20 Creative Salmon = submits the=20 defence of fair comment is not available to=20 Mr. Staniford because the requirement = of the=20 defence that the comment be based on fact = includes an=20 obligation to state the facts truly. The trial judge did not make = any=20 finding on this point.

[54] = =20 Creative Salmon = begins the=20 submission by quoting the following from Raymond E. Brown, The Law of = Defamation in Canada, 2d ed., vol. 2 (Canada: Thomson Canada, 1999) = at p.=20 15-2:

In order to be fair, = it must=20 be shown that the facts upon which the comment is based are truly stated = ...

Creative Salmon then = cites the=20 decisions in Taylor-Wright v. CHBC-TV, a division of WIC Television = Ltd.,=20 [1999] B.C.J. No. 334 (S.C.), aff=92d 2000 = BCCA 629;=20 Myers v. Canadian Broadcasting Corp. (1999), 47 C.C.L.T. (2d) 272 = (Ont.=20 S.C.J.), rev=92d in=20 part on damages (2001), 54 O.R. (3d) 626, 6 C.C.L.T. (3d) 112 (C.A.), = leave to=20 appeal to S.C.C. refused, [2001] S.C.C.A. No. 433; and Leenen v. Canadian Broadcasting Corp. = (2000),=20 48 O.R. (3d) 656, 50 C.C.L.T. (2d) 213 (S.C.J.), aff=92d=20 (2001), 54 O.R. (3d) 612, 6 C.C.L.T. (3d) 97 (C.A.), leave to appeal to = S.C.C.=20 refused, [2001] S.C.C.A. No. 432.

[55] = =20 The=20 case of Taylor-Wright involved television broadcasts about court=20 proceedings involving the control of the board of directors of a = society. =20 The broadcasts included allegations contained in affidavits of theft and = fraud=20 against the plaintiffs, who were endeavouring to have=20 three directors of the society removed and replaced. Mr. Justice = Drossos held the broadcasts were defamatory and no = defences had been proven by the defendants. = Creative=20 Salmon relies on the following conclusion from Taylor-Wright = (B.C.S.C.)=20 regarding the omission of relevant information from the = broadcasts:

143 I = accordingly conclude=20 that the complained of allegations arising from the February 13th = broadcast,=20 although substantially accurate as far as they went, such were not = because of=20 significant and relevant omissions substantially fair. The defendant is=20 therefore not entitled to the defence of privilege or fair comment at = common law=20 or under section 3 of the statute. The defendant is therefore liable in = damages=20 to the plaintiffs for the libel that flows from the February 13th=20 broadcasts.

Mr. Staniford = maintains that=20 Taylor-Wright was really a case dealing with privilege, in = respect of=20 which there is a requirement for fair and balanced coverage.

[56] = =20 The=20 cases of Myers and Leenen = involved the=20 same episode of the fifth estate shown by the CBC about a = controversial=20 heart medication. Both Dr. Myers and Dr. Leenen were successful in their defamation = claims. =20 Creative Salmon quotes the following from Myers: =

111 I conclude = that no=20 fair-minded person, nor indeed any reasonable person, could have come to = hold=20 the views about Dr. Myers which were conveyed in the program, given = all the=20 facts (reported and unreported) available to the defendants. From my = review of=20 the detailed transcripts and the tapes, including the parts which were = not used=20 in the program, I find that the CBC dramatically simplified a complex = medical=20 debate by seriously mischaracterizing Dr. Myers=92 position. The CBC set = him up=20 quite unfairly as a =93bad guy=94 in the debate.

In Leenen, = at para. 122, Mr. Justice Cunningham quoted the above = passage=20 and commented that the same applied to the CBC=92s=20 treatment of Dr. Leenen.

[57] = ;=20 Creative Salmon also relies on = the=20 following statements of Mr. Justice Cunningham in Leenen:

[126] One of the elements of fair = comment, of=20 course, is fairness. If it is found that the comment is unfair, the = defence=20 fails =85 Fairness would require that viewers be presented with both = sides of the=20 argument in a balanced way. In this case, by omitting key information, = by=20 deliberately failing to provide Dr. Leenen = an=20 opportunity to accurately present his views, and by deliberately failing = to=20 follow up with further interviews, the CBC cannot claim fair comment = when it=20 describes Dr. Leenen as an advocate of CCBs. The selectivity in the presentation of the = material=20 for this program in and of itself demonstrates an inherent unfairness = towards=20 those whose views did not mesh with Mr. Regush's. So=20 much important information was kept away from the viewer, information = that, had=20 it been presented, probably would have destroyed the Regush thesis. =85 No comment can be fair if it is = based upon=20 facts which are invented or misstated: =85 Having raised the = defence of fair=20 comment, the defendants must satisfy the burden of establishing that the = facts=20 upon which it is based are true and that it is objectively = fair.=85

* * *

[127a] Next I turn to the innuendo that = Dr. Leenen, having co-authored the "Dear Colleague" = letter in=20 April 1995, was in a conflict of interest when he later chaired the = ad=20 hoc advisory committee meeting. Disbery J.,=20 in Thomas v. Canadian Broadcasting Corp., [1981] 4 W.W.R. 289, 16 = C.C.L.T. 113 (N.W.T.S.C.), writes at p. 338:

To only give the public a look at the side of = the coin=20 supportive of their comments and opinions and not show the facts to the = contrary=20 on the other side of the coin is to deal in half-truths, and comments = made in=20 this way are neither fair nor made in good faith.

* * *

[150] In the present case an inference = of malice=20 may be drawn from the fact that the defendants wilfully misrepresented = the facts=20 by omitting significant evidence contrary to their thesis.

[58] = ;=20 The Law of Defamation in Canada = elaborates, at pp.=20 15-84 to 15-86, on the requirement that the facts be truly = stated:

[The=20 facts] must be truly stated, or, at least, be substantially true. = They=20 must not be patently distorted or materially misstated, or so incomplete = as to=20 lead to a material alteration of the truth. A necessary foundation = for the=20 defence of fair comment is the truth of the facts commented upon. = It is=20 not sufficient to show some of the facts upon which the comment is made = are true=20 if some are also false, or if material facts are omitted which would=20 fundamentally change the complexion of the facts which are stated. = [footnotes omitted]

[59] = ;=20 Gatley on Libel and Slander makes the point in the following fashion at = para. 12-17:

Again,=20 the defence of fair comment will fail if the defendant omits from the = statement=20 of facts on which the comment purports to be based some important fact = which=20 (had it been mentioned) would falsify or alter the complexion of the = facts that=20 are stated. For example, if A states that B was convicted by a = jury of a=20 serious crime and comments adversely on the fact, but omits to state = that the=20 conviction was quashed by the Court of Appeal, his words cannot be = defended as=20 fair comment. [footnote omitted]

[60] = ;=20 In my opinion, the requirement to = state the=20 facts truly does not obligate the commentator to set out all facts, both = pro and=20 con, relevant to the matter upon which he or she is commenting. = Such an=20 obligation would unduly hinder the commentator from forcefully = expressing his or=20 her opinion. Of course, the omission of relevant facts will be a = factor to=20 consider in determining whether or not malice was the primary motive of = the=20 commentator.

[61] = ;=20 I agree with the authors of = The Law of=20 Defamation in Canada and Gatley on Libel=20 and Slander that the requirement to state the facts truly means in = the=20 present context that the commentator may not omit to state important or = material=20 facts that would falsify or alter the complexion of the facts stated in = the=20 commentary. It is not necessary to state all facts of a nature = that may=20 influence the opinion of the person hearing or reading the = commentary. In=20 order to defeat the defence, the omitted facts must be sufficiently = fundamental=20 that they undermine the accuracy of the facts expressed in the = commentary to the=20 extent the stated facts cannot be properly regarded as a true statement = of the=20 facts.

[62] = ;=20 The trial judge in the instant = case found=20 that Mr. Staniford omitted the following = facts from=20 the press releases:

(a) = he omitted=20 from the first press release the fact that it is possible for a fish to = become=20 contaminated by malachite green from the waters of the Pacific Ocean;=20 and

(b) = he omitted=20 from the second press release the fact that he was confused when he = received the=20 information about antibiotic use from the Ministry of Environment and = did not=20 know if Creative Salmon had used the antibiotics on production fish sold = to the=20 public or on the brood stock.

[63] = ;=20 In my view, these omitted facts = are not=20 sufficiently fundamental that they undermine the accuracy of the facts = that are=20 stated in the press releases. The fact stated in the first press = release=20 was that Creative Salmon suspended sales of farmed salmon after testing = positive=20 for malachite green. The prospect of the fish becoming = contaminated from=20 the waters of the Pacific Ocean was one of several possibilities, and it = was not=20 known to be the most likely of the potential sources of = contamination. =20 Creative Salmon was sufficiently concerned that it was not an isolated = event=20 that it suspended its sales of fish. After it conducted its = investigation,=20 Creative Salmon queried whether the Canadian Food Inspection Agency had = made an=20 error, which suggests that Creative Salmon thought an error was a more = likely=20 explanation than contamination from the open waters.

[64] = ;=20 With respect to the second press = release, I=20 do not consider the omission from it to be an objective fact. The = omission=20 relates to the subjective state of Mr. Staniford=92s mind. In my opinion, the = omission goes to=20 the issue of malice, and it does not undermine the accuracy of the = stated fact=20 that the information obtained from the Ministry of Environment disclosed = the use=20 of antibiotics by Creative Salmon in 2004, while it claimed on its = website to=20 have been antibiotic free since 2001.

[65] = ;=20 In the result, I would conclude = that, on=20 the evidence before the trial judge, Mr. Staniford did not fail to state the facts truly so = as to=20 deprive himself of reliance on the defence of fair comment.

Other Grounds of Appeal

[66] = ;=20 In addition to challenging the = trial=20 judge=92s finding of malice against him, Mr. Staniford asserts errors on the part of the trial = judge in=20 failing to determine which statements in the two press releases were = fact and=20 which statements were comment, and in failing to rule whether the sting = of the=20 imputations against Creative Salmon was comment. As I have = concluded that=20 a new trial is required, it is not necessary to deal with these grounds = of=20 appeal.

Conclusion

[67] = ;=20 I would allow the appeal and = order a new=20 trial. Although it was necessary to make determinations on some = aspects of=20 the defence of fair comment in order to decide this appeal, it would not = be=20 appropriate in the present circumstances for this Court to limit the = issues in=20 the new trial: see Holsten = v.=20 Card, 2002 BCCA 290, 100 B.C.L.R. (3d) 269. Unless there is an = agreement to limit the issues, the judge in the new trial will have to = rule on=20 all of the issues on the basis of the findings of fact made by him or = her (which=20 may be different from the findings of fact made by the judge in the = trial that=20 has already taken place).

[68] = ;=20 I would also order that the funds = posted by=20 Mr. Staniford as security for the trial = judgment and=20 costs of the appeal, together with any interest earned on the funds, be = paid out=20 of court to or at the direction of Mr. Staniford.

=93The Honourable Mr. Justice = Tysoe=94

I agree:=20

=93The Honourable Madam Justice = Levine=94

I agree:=20

=93The Honourable Mr. Justice = Frankel=94