2019 November 20

Level One Construction Ltd. v. Burnham, 2019 BCCA 407

The British Columbia Court of Appeal allowed an appeal by the plaintiffs from a dismissal of their defamation action, reversing a finding by the trial judge that words published by the defendant Burnham in a television broadcast and in a subsequent online review were not defamatory.  Ordering a new trial, the Court of Appeal held that the trial judge did not apply the correct legal test. “Instead of applying the standard of a reasonable or ordinary member of the public, and choosing between the extremes of an unusually suspicious or unusually naïve person, the judge considered that she was obliged to choose the ‘least harsh’ interpretation of the impugned statements.” “When determining whether impugned words are defamatory, courts ‘avoid seizing upon the worst possible meaning’, but that does not mean that the ‘least harsh interpretation’ must be used.  Indeed, just as a court should not seize on the worst possible meaning, a court must not strain to interpret words in a mild of inoffensive sense in order to relieve a defendant from liability.” “When applying the objective test of whether the words are defamatory, a court must determine what an ordinary person will reasonably infer from the words.  A court must not admit evidence about what the reasonable meaning is, about how the words might be understood, or ‘of facts giving rise to the inferences to be drawn from the words’”.

With respect to the defence of fair comment, the Court of Appeal held that although a commentator does not have to state all facts, “an omission that undermines the accuracy of the basis for the commentary is fatal to the defence.”  “The facts on which a fair comment is based must be correct.”  The Court of Appeal concluded that the trial judge “erred in finding that the defence of fair comment is available to the defendant.”