Subject: 2009 BCCA 61 Creative Salmon Company Ltd. v. Staniford
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Date: Sat, 14 Feb 2009 10:00:00 -0800

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Creative Salmon Company Ltd. v. Staniford,

2009 BCCA 61

Date: 20090213

Docket: CA034801

Between:

Creative Salmon Company Ltd.

Respondent

(Plaintiff)

And

Don Staniford

Appellant

(Defendant)

Before:

The Honourable Madam Justice Levine

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Tysoe

D.F. Sutherland and D.L. Kripp

Counsel for the Appellant

D.G. Sanderson, Q.C.

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

December 15, 2008

Place and Date of Judgment:

Vancouver, British Columbia

February 13, 2009

Written Reasons by:

The Honourable Mr. Justice Tysoe

Concurred in by:

The Honourable Madam Justice Levine

The Honourable Mr. Justice Frankel

Reasons for Judgment of the Honourable Mr. Justice Tysoe:

Introduction

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

[2]                In her reasons for judgment, indexed as 2007 BCSC 62, the trial judge found that the press releases defamed Creative Salmon and the defence of fair comment was not available to Mr. Staniford.  Since the release of the reasons for judgment, the Supreme Court of Canada has modified the test for the defence of fair comment in its decision in the case of WIC Radio Ltd. v. Simpson, 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]                For the reasons that follow, I would allow the appeal and order a new trial.

Background

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

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

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

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

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

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

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

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

Creative Salmon Goes Green

- Clayoquot Sound factory closed due to chemical contamination?

Tofino, BC – Has Creative Salmon suspended sales of farmed salmon after testing positive for the carcinogenic fungicide malachite green? …

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

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

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

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

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

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

Creative’s ‘Organic’ Antibiotic Salmon Scam

- FOCS lodges ‘Deceptive Marketing Practices’ complaint with the Competition Bureau

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

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

-“The fish that Creative Salmon sells [have] never been fed antibiotic”

-“Fish are grown to harvest size following our organic standards, in low density net pens without the use of antibiotics”

-“In fact Creative Salmon has been antibiotic free since Oct 17, 2001”

-“1349 days antibiotic free”

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

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

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

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

[footnotes omitted]

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

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

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

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

Positions Of The Parties

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

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

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

Discussion

The WIC Radio Decision

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

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

(b)        the comment must be based on fact;

(c)        the comment, though it can include inferences of fact, must be recognizable as comment;

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

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

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

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

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

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

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

(b)        the comment must be based on fact;

(c)        the comment, though it can include inferences of fact, must be recognizable as comment;

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

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

Errors by the Trial Judge

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

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

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

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

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

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

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

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

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

(i)  Malice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[45]            Although the reason given by the trial judge does not constitute malice at law, it is my view that on the basis of the 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 Court to dismiss Creative Salmon’s claim.

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

(ii)  The Objective Element of the Test

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

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

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

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

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

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

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

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

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

(iii)  Facts Truly Stated

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

[54]            Creative Salmon begins the 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. 15-2:

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

Creative Salmon then cites the decisions in Taylor-Wright v. CHBC-TV, a division of WIC Television Ltd., [1999] B.C.J. No. 334 (S.C.), aff’d 2000 BCCA 629; Myers v. Canadian Broadcasting Corp. (1999), 47 C.C.L.T. (2d) 272 (Ont. S.C.J.), rev’d in part on damages (2001), 54 O.R. (3d) 626, 6 C.C.L.T. (3d) 112 (C.A.), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 433; and Leenen v. Canadian Broadcasting Corp. (2000), 48 O.R. (3d) 656, 50 C.C.L.T. (2d) 213 (S.C.J.), aff’d (2001), 54 O.R. (3d) 612, 6 C.C.L.T. (3d) 97 (C.A.), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 432.

[55]            The case of Taylor-Wright involved television broadcasts about court proceedings involving the control of the board of directors of a society.  The broadcasts included allegations contained in affidavits of theft and fraud against the plaintiffs, who were endeavouring to have 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 Salmon relies on the following conclusion from Taylor-Wright (B.C.S.C.) regarding the omission of relevant information from the broadcasts:

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

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

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

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

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

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

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

* * *

[127a]  Next I turn to the innuendo that Dr. Leenen, having co-authored the "Dear Colleague" letter in April 1995, was in a conflict of interest when he later chaired the ad hoc advisory committee meeting. Disbery J., 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 supportive of their comments and opinions and not show the facts to the contrary on the other side of the coin is to deal in half-truths, and comments made in this way are neither fair nor made in good faith.

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

Other Grounds of Appeal

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

Conclusion

[67]            I would allow the appeal and order a new trial.  Although it was necessary to make determinations on some aspects of the defence of fair comment in order to decide this appeal, it would not be appropriate in the present circumstances for this Court to limit the issues in the new trial:  see Holsten v. 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 all of the issues on the basis of the findings of fact made by him or her (which may be different from the findings of fact made by the judge in the trial that has already taken place).

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

“The Honourable Mr. Justice Tysoe”

I agree:

“The Honourable Madam Justice Levine”

I agree:

“The Honourable Mr. Justice Frankel”