2023 October 30

Yu v. 16 Pet Food & Supplies Inc., 2023 BCCA 397

The British Columbia Court of Appeal unanimously approved the “stringent approach” of Bonnard v Perryman, [1891] 2 Ch. 269, and Canadian Human Rights Commission v Liberty Net, [1988] 1 SCR 626, and held that it “has stood the test of time in a wide variety of contexts, including in the age of the Internet, and should continued to govern” the judicial discretion to issuance of pre-trial injunctions against defamatory expression. Pre-trial injunctions will only be granted in exceptional circumstances, where the words complained of are unarguably defamatory, clearly untrue and clearly not fair comment.  The Court hearing the application for a pre-trial injunction must conclude that any jury verdict favouring the defendant at trial would inevitably be considered perverse by a court of appeal.  In Liberty Net, Justice Bastarache quoted with approval the following words from a leading Canadian textbook on the subject of injunctions:  “The well-established rule is that an interlocutory injunction will not be granted where the defendant indicates an intention to justify [i.e. prove the truth of] the statements complained of, unless the plaintiff is able to satisfy the court at the interlocutory stage that the words are both clearly defamatory and impossible to justify.”

The Appeal Court went on to formulate the test in the following terms: 1.  The applicant must demonstrate that the impugned words are manifestly defamatory such that a jury finding otherwise would be considered perverse.  To do so, the applicant must establish that: a. the impugned words refer to them, have been published, and would tend to lower their reputation in the eyes of a reasonable observer; and b. it is beyond doubt that any defence raised by the respondent is not sustainable.  2.  If the first element has been made out, the court should ask itself whether there is any reason to decline to exercise its discretion to grant the injunction pending trial.