IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Creative Salmon Company Ltd. v. Staniford,

 

2007 BCSC 62

Date: 20070115
Docket: S053729
Registry: Vancouver

Between:

Creative Salmon Company Ltd.

Plaintiff

And

Don Staniford

Defendant


Before: The Honourable Madam Justice Gerow

Reasons for Judgment

Counsel for the Plaintiff:

D.G. Sanderson, Q.C.
T.L. Mihoc

Counsel for the Defendant:

D.F. Sutherland
A. McCue

Dates and Place of Trial:

June 5 and 6, September 28 and 29,
October 2 to 6, 7 and 10 and November 14, 2006

 

Vancouver, B.C.

[1]                Creative Salmon Company Ltd. is a salmon fish farming company that raises its fish in the Clayoquot Sound near Tofino, B.C.  In late 2004, Don Staniford was hired by the Friends of Clayoquot Sound (the “FOCS”), an environmental group located in Tofino, B.C., as their aquaculture campaigner.  In June 2005, two press releases were issued by the FOCS about Creative Salmon.  Creative Salmon alleges that the press releases contain defamatory statements authored by Mr. Staniford.  Creative Salmon says that Mr. Staniford’s motivation for making the statements was that he wanted to build up opposition to all salmon farming, and in particular to Creative Salmon because Creative Salmon was attempting to farm salmon organically.  In response, Mr. Staniford pleads that the statements were fair comments made in good faith on matters of public interest, namely public health and safety and sustainability of the environment, as potentially effected by Creative Salmon’s salmon farming operation.  As well, Mr. Staniford says that the statements are justified as they are true in substance or so close to the truth as to remove all liability for any sting.  Mr. Staniford relies on the defence of qualified privilege regarding a comment in one of the press releases that FOCS was lodging a complaint about Creative Salmon with the Competition Bureau.  Mr. Staniford argues that the comment that FOCS was making the complaint to the Competition Bureau was a reasonable and fair account of a report made to a public body.

[2]                The issues are:

1.         Did Mr. Staniford publish the statements and words complained of?

2.         Are the statements complained of defamatory?

3.         Are the statements fair comment on a matter of public interest?

4.         Are the statements justified, in that they are true?

5.         Is the defence of qualified privilege available for the statement made regarding the complaint to the Competition Bureau?

6.         If either the defences of fair comment or qualified privilege are established, are they defeated by malice?

7.         Does the Negligence Act, R.S.B.C. 1996, c. 333 apply, and if so, was Creative Salmon contributorily negligent for the defamatory statements?

THE PRESS RELEASES – THE WORDS COMPLAINED OF

[3]                The words complained of are contained in two press releases dated June 24 and 27, 2005.  The statements in issue from the June 24, 2005 press release are:

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.

[4]                The statements in the June 27, 2005 press release which are in issue are:

(i)         Creative’s ‘Organic’ Antibiotic Salmon Scam

(ii)        Creative Salmon is exposed by information supplied by the Ministry of Environment (MOE) as a liar and a consumer fraud.

(iii)       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.

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

(v)        If Creative Salmon is telling such blatant lies, how is the public expected to believe the company’s claims to be ‘organic’?

(vi)       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.

BACKGROUND

[5]                At the time the statements were made, Mr. Staniford was employed as an aquaculture campaigner by the FOCS.  FOCS is a non-profit environmental group dedicated to the protection of the forest and the ocean in the Clayoquot Sound.  Mr. Staniford was hired by the FOCS in November 2004 to campaign against salmon farming in the Clayoquot Sound.  Prior to his employment with the FOCS, Mr. Staniford was employed as an aquaculture campaigner for the Friends of the Earth and the Salmon Farm Protest Group in Scotland.  Mr. Staniford is a committed environmentalist who has campaigned against open net salmon farming since 1998.

[6]                The FOCS is opposed to open net salmon farming in the Clayoquot Sound.  As well, the FOCS is opposed to the organic certification of farmed salmon.  Mr. Staniford’s efforts during his employment with FOCS were primarily directed towards a public relations campaign to build government and public opposition to open net salmon farming in Clayoquot Sound.  He was specifically tasked with building opposition amongst the organic community to open net salmon farming labelled as organic.  His job description sets out that he was to pressure organizations that certify organic products not to allow farmed salmon to be labelled organic, build a network of five organic spokespersons on the threat salmon farming poses to organic food, and have five articles published in journals on the threats of organic farmed salmon.

[7]                Creative Salmon is committed to farming salmon organically with minimal environmental impact.  Creative Salmon is a member of the Pacific Organic Seafood Association (“POSA”) which is an organization active in the development of organic standards in the fish industry. 

[8]                Creative Salmon’s commitment to producing its fish organically and to the environment increases its costs of production.  Creative Salmon farms an indigenous species of salmon, Chinook salmon, rather than Atlantic salmon.  It uses four of its six sites at any one time in order to be able to fallow its sites on a regular basis.  This allows the ocean floor to recover from the environmental imprint that salmon farming makes.  All of Creative Salmon’s sites are government approved and highly regulated. 

[9]                In June 2005, Mr. Staniford became aware that there had been a report that the Canadian Food Inspection Agency (the “CFIA”) had found trace elements of malachite green (0.33 parts per billion) in a fish farmed by Creative Salmon.  Malachite green is an antifungal agent which has historically been used in hatcheries as a fungicide.  Since 1992 it has not been approved for use in fish intended for human consumption in Canada.  Although Canada has a zero tolerance for malachite green, a number of countries accept a level of malachite green greater than 1 part per billion. 

[10]            Malachite green is also used as an industrial dye in some manufacturing applications, including pulp and paper, and textiles. 

[11]            When Creative Salmon was advised of the finding of malachite green, it voluntarily suspended all fish sales pending its investigation into the matter.  As part of the investigation, Creative Salmon sent 18 samples of fish to the University of Guelph to be analyzed for the presence of malachite green.  As well, Creative Salmon requested that its hatchery send samples to be tested.  All results received were negative, and by June 30, 2005 Creative Salmon resumed harvesting. 

[12]            Through its investigation, Creative Salmon confirmed that none of its feed suppliers have ever used malachite green, and that its contracted hatchery had not used malachite green on Creative Salmon’s fish.  Creative Salmon has never used malachite green.  As a result of its investigation, Creative Salmon has queried whether the finding of malachite green in one of its fish by the CFIA was an error. 

[13]            A number of years ago, Creative Salmon started to reduce its antibiotic use.  Since October 17, 2001 it has not used antibiotics on the fish it sells for public consumption (the “production fish”).  One of the reasons for the use of antibiotics in fish farming is that the fish develop diseases when they are stressed by handling and living in high density.  In order to minimize the amount of stress the fish have to deal with, Creative Salmon raises the fish in low density pens – it has about half of the population per net compared to other salmon farming operations – and reduces the movement of its fish from one pen to another.  As well, Creative Salmon monitors its feeding program by television, which reduces stress to the fish by ensuring that all of the fish receive adequate feed.  The feed monitoring also reduces the amount of feed that is wasted and that may fall to the ocean floor.

[14]            The brood stock of approximately 600–700 fish are handled more and are fed antibiotics to prevent bacterial kidney disease.  The brood stock are the fish that Creative Salmon raises for breeding purposes and are not sold to the public.  They are kept separate from the production fish to ensure that no antibiotics are given to production fish.

Did Mr. Staniford publish the statements and words complained of?

[15]            Creative Salmon has the burden of establishing that the statements were made, that the statements referred to Creative Salmon, and that the statements were published by Mr. Staniford.  There is no issue that the statements were made and that they referred to Creative Salmon.  Mr. Staniford has not argued otherwise.  However, Mr. Staniford says that the statements were not his alone, but were made by the FOCS as is evidenced by the fact that the press releases were on the FOCS letterhead.  Mr. Staniford says his involvement in authoring the press releases was in his role as an employee of the FOCS. 

[16]            However, Mr. Staniford admits that the press releases were at his instigation, that he authored the first draft of both press releases, and that he chose the words he used carefully.  The evidence is that the words and statements complained of were contained in the initial draft and did not change from the time Mr. Staniford authored them until publication.  Many of the statements complained of are quotes attributed to Mr. Staniford in the press releases.  Mr. Staniford arranged for the publication of the press releases, and sent the press releases to a large number of media outlets and individuals. 

[17]            As a result, I have concluded that Creative Salmon has established that Mr. Staniford published the statements and words complained of.

Are the words and statements complained of defamatory?

[18]            Creative Salmon alleges the words are defamatory.  It says that the natural and ordinary meanings of the words are that:

(i)         Creative Salmon is dishonest;

(ii)        Creative Salmon is a liar;

(iii)       Creative Salmon has perpetrated or attempted to perpetrate a fraud on the public;

(iv)       Creative Salmon’s statements that it is organic is an intentional and fraudulent misrepresentation to the public;

(v)        the fish that Creative Salmon sells to the public are not antibiotic free;

(vi)       Creative Salmon has used a chemical known as malachite green in its salmon farming operations, and malachite green is a potential genotoxic carcinogen;

(vii)      Creative Salmon is discharging waste into Clayoquot Sound, thereby endangering the marine environment;

(vii)      Creative Salmon has committed an offence contrary to the Competition Act, R.S.C. 1985, c. C-34.

[19]            Mr. Staniford asserts that he is entitled to plead and defend lesser included meanings of the words: Polly Peck (Holdings) plc v. Trelford, [1986] 2 All E.R. 84 (C.A.); Pizza Pizza Ltd. v. Toronto Star Newspapers Ltd.  (1998), 167 D.L.R. (4th) 748 (Ont. Div. Ct.), aff’d (2000), 49 O.R. (3d) 254 (C.A.); Dhami v. Canadian Broadcasting Corp., 2001 BCSC 1811.

[20]            Mr. Staniford alleges that the words do not have the meaning attributed to them by Creative Salmon.  He says that the words complained of were hooks or arresting leads, and that if the press releases are read in their entirety it becomes apparent that the words and statements do not have the meaning attributed to them by Creative Salmon.  In his statement of defence, Mr. Staniford pleads the meanings to be given to the words are:

(i)         that there are reasonable grounds to suspect Creative Salmon has not been honest;

(ii)        that there are reasonable grounds to suspect that Creative Salmon has made false or misleading statements to the public;

(iii)       that there are reasonable grounds to suspect that Creative Salmon’s statements that it is organic and chemical free may not be true or accurate and should not be believed by the public;

(iv)       that there are reasonable grounds to suspect that Creative Salmon’s fish were fed or administered antibiotics, contrary to Creative Salmon’s representations;

(v)        that there are reasonable grounds to suspect that Creative Salmon’s operations may not have been antibiotic free since October 17, 2001 as represented by Creative Salmon;

(vii)      that there are reasonable grounds to suspect that a chemical known as malachite green may have been used or introduced to Creative Salmon’s salmon farming operations, and malachite green is a potential genotoxic carcinogen;

(viii)      that there are reasonable grounds to suspect that Creative Salmon is discharging, depositing or releasing, or permitting or causing the discharge, deposition or release of contaminated waste, chemicals or pollutants into Clayoquot Sound, thereby endangering the marine environment;

(ix)       that there are reasonable grounds to suspect that Creative Salmon has committed an offence contrary to the Competition Act.

[21]            The determination of whether an expression is capable of bearing a defamatory meaning is a question of law, whereas the determination of whether an expression is in fact defamatory is a question for the jury.  A judge sitting alone in an action for defamation must first deal with the question of law, i.e. whether the publication complained of is capable of bearing a defamatory meaning, and secondly the jury question, i.e. whether the publication was defamatory: Pressler v. Lethbridge, 2000 BCCA 639; Simpson v. Mair, 2006 BCCA 287 at ¶ 28, ref’g to Slim v. Daily Telegraph Ltd., [1968] 1 All E.R. 497.

[22]            In determining whether words or statements are defamatory, they must be viewed objectively from the point of view of a reasonable, thoughtful and informed reader: Ager v. Canjex Publishing Ltd. (c.o.b. Canada Stockwatch) 2005 BCCA 467 at ¶ 22.

[23]            “A publication is defamatory if it lowers the reputation of the plaintiff in the estimation of right-thinking members of society, that is, if it has the tendency to or does injure, prejudice or disparage the plaintiff in the eyes of others, or lowers the good opinion, esteem or regard which others have for him, or causes him to be shunned and avoided, or exposes him to hatred, contempt or ridicule.  The law of libel and slander protects persons from false statements which reflect adversely on their reputation in the community.  It is not the reputation which he deserves or wishes he had, but the one which he actually has which is protected ….  Its purpose … is to protect the reputation which a person possesses in the general community, and not the esteem with which he views himself.”  Raymond E. Brown, The Law of Defamation in Canada, 1st ed., vol. 1 (Toronto, Calgary and Vancouver: Carswell, 1987) at 38–39.

[24]            Although Brown points out at p. 45 that each judicial definition of defamation has its limitations and that there is no single definition that clearly captures its essence, most definitions can essentially be pared down to whether or not the publication tends to lower the reputation of the plaintiff in the estimation of others.  Defamatory imputations can arise from the literal or natural and ordinary meaning of the words where it is not necessary to go beyond the words themselves: Pulp and Paper Workers of Canada v. International Brotherhood of Pulp, Sulphite and Paper Mill Workers, [1973] 4 W.W.R. 160 (B.C.S.C.).

June 24th press release

[25]            Mr. Staniford says that the meaning Creative Salmon asserts regarding the June 24th press release, i.e. that Creative Salmon has used a chemical known as malachite green in its salmon farming operations, is not the natural and ordinary meaning of the words complained of.  Mr. Staniford asserts the meaning of the words complained of in the June 24th press release is that there are reasonable grounds to suspect the chemical known as malachite green may have been used or introduced to Creative Salmon’s salmon farming operation. 

[26]            Mr. Staniford says he was aware at the time of publishing the press release that Creative Salmon said it didn’t use malachite green, and that he never said it did.  He argues there is nothing in the paragraph sued upon that suggests, much less means, that Creative Salmon used malachite green or that Creative Salmon, itself, introduced the chemical. 

[27]            Mr. Staniford says that the fact he relied on in expressing the opinion contained in the June 24th press release was a report issued by the CFIA that a fish from Creative Salmon had tested positive for malachite green.  At the time of the press release, Mr. Staniford knew that malachite green is found in pulp mill effluent and that it had historically been used in hatcheries.  As well, he knew that malachite green does not break down for a long period of time in water and that the fish that purportedly tested positive could have been contaminated from the water of the Pacific Ocean.

[28]            The quote attributable to Mr. Staniford in the press release is:

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 floor.

[29]            In my view, that paragraph is capable of having the defamatory meaning alleged by Creative Salmon, i.e. that Creative Salmon has used a chemical known as malachite green in its operations.  Although Mr. Staniford asserts that the statement is contingent and turns on whether the malachite green contamination is confirmed, I do not agree that it does not suggest that Creative Salmon has used malachite green. 

[30]            Mr. Staniford was well aware at the time he made the statement that Creative Salmon had stated on its website that it did not use malachite green.  Mr. Staniford was also aware that even if malachite green was confirmed in a Creative Salmon fish, it could have come from a source other than Creative Salmon.  However, nowhere in the press release does it state that if a Creative Salmon fish tested positive for malachite green contamination it could have come from a source other than Creative Salmon. 

[31]            The alternate meanings suggested by Mr. Staniford, “that there are reasonable grounds to suspect that a chemical known as malachite green may have been used or introduced to Creative Salmon’s salmon farming operations and malachite green is a potential genotoxic carcinogen”, or “that Creative Salmon should come clean in terms of cleaning the materials used to produce their farmed salmon which is ultimately sold as a product in the supermarket, i.e. screen its eggs and the source raw material that goes into its farmed salmon operation be that fish feed or eggs” are not, in my view, the ordinary and natural meanings of the words complained of.

[32]            Since the press release failed to identify any other potential sources of malachite green, the only inference to be made by the reader is that the malachite green was used by Creative Salmon, contrary to Creative Salmon’s claims on its website that it does not use malachite green.  This inference is further buttressed by Mr. Staniford’s choice of words, i.e. “blows out of the water Creative’s claim to be ‘organic’ and chemical free” and “Creative Salmon must come clean on malachite green”.  At trial, Mr. Staniford confirmed that one of the meanings which could be attributed to the words is that Creative Salmon should just come clean and tell the truth.

[33]            In my view, the words complained of in the June 24th press release are defamatory because they infer that Creative Salmon uses malachite green when it says it does not, thereby putting Creative Salmon’s credibility into question.

June 27th press release

[34]            Mr. Staniford says that the press releases were published to professional journalists and that the words in the June 27th press release, namely “scam”, “liar” and “consumer fraud” are merely hooks or arresting leads.  Those words are clearly capable of a defamatory meaning.

[35]            However, Mr. Staniford argues that the words are not defamatory if the press release is looked at as a whole and in context.  He says the press release is simply expressing that there is an inconsistency and, indeed, a misrepresentation on the website in respect of the use of antibiotics in Creative Salmon’s operation.  Mr. Staniford says that a reasonable reader would not interpret the press release as stating that Creative Salmon is dishonest in every possible respect, but rather that Creative Salmon has not been honest in respect of the matters identified.

[36]            In my view, reading the June 27th press release as a whole, it is apparent that Mr. Staniford is suggesting that Creative Salmon is generally dishonest and cannot be believed.  It is evident from the statements attributed to him that Mr. Staniford is not just alleging that Creative Salmon is dishonest in respect of certain issues that are identified in the press release.  The statements attributed to Mr. Staniford in the June 27th press release are:

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 Environment’s damning revelations of antibiotic use.”

“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.”

[37]            I have concluded the words are defamatory.  The natural and ordinary meanings of the words complained of in the June 27th press release are that Creative Salmon has lied to the public, attempted to perpetrate a fraud on the public, and attempted to scam the public.  In other words, that Creative Salmon is intentionally dishonest and the public cannot trust whatever it says.

Are the statements fair comment on a matter of public interest?

[38]            To be fair, a comment must be based on facts truly stated and must not contain imputations of corrupt or dishonourable motives on the person whose conduct is criticized, save insofar as such imputations are warranted by the facts: Robert McEwen & Philip Lewis, eds., Gatley on Libel and Slander, 7th ed. (London: Sweet and Maxwell, 1974) at ¶ 716.  Another necessary ingredient of the defence of fair comment is that the person making the statement must have an honest belief in the truth of the comment: Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067.

[39]            The sting of both press releases is that Creative Salmon has been dishonest in the representations it makes to the public on its website.  The onus is on Mr. Staniford to prove that the statements were made honestly and fairly.  In order to do so, he must satisfy both a subjective and objective test:

(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; and

(ii)        objective fairness, in the sense that the comment is one which a person could honestly make on the basis of all the facts known to the defendant. 

R.D. McConchie and D.A. Potts, Canadian Libel and Slander Actions (Toronto: Irwin Law Inc., 2004) at 350 and 351.

June 24th press release

[40]            In the June 24th press release, the sting is that Creative Salmon has been dishonest about the use of malachite green. 

[41]            In order to discharge the burden of proving that the statements in the June 24th press release were made honestly and fairly, Mr. Staniford had to establish:

(i)         that the material facts known to Mr. Staniford, but not disclosed in his press release, did not lead to a material alteration of the truth of the facts stated;

(ii)        that the statements were an honest expression of his belief in light of the facts known to him;

(iii)       that there was a sufficient basis of fact in the press release to warrant comment, and that a fair minded person could on the true facts (both disclosed and undisclosed) honestly hold the opinion expressed in the press release; and

(iv)       that the statements that contained imputations that Creative Salmon had dishonourable motives were warranted by the facts.

[42]            Mr. Staniford admits that he knew at the time of the press release that there were reports that malachite green had been found in wild fish, that it was found in the effluent of pulp mills, and had been historically used in hatcheries.  As well, Mr. Staniford knew that malachite green did not break down in the aqueous environment for many years, and that malachite green was in the waters around Vancouver Island.  He was aware that if a Creative Salmon fish tested positive for malachite green it could have been contaminated from sources other than Creative Salmon.  In other words, Mr. Staniford knew at the time he authored the press releases that if a Creative Salmon fish was contaminated, that did not mean that Creative Salmon had either used or introduced malachite green into its operation.  He also knew that Creative Salmon denied using malachite green in its operation.  Although one of Creative Salmon’s fish reportedly tested positive for trace amounts of malachite green, there was no evidence that Creative Salmon has ever used malachite green in its operation.

[43]            Mr. Staniford argues that his opinions in the June 24th press release related to two aspects of public interest, namely, the preservation of the environment and the preservation of human health.  However, Mr. Staniford presented no evidence of any connection between the activities of Creative Salmon and the finding of malachite green.  At the time Mr. Staniford issued the press release, he had no factual basis on which to suggest that Creative Salmon had been dishonest on its website when it said it did not use malachite green.  In particular, Mr. Staniford did not establish that if a fish from Creative Salmon tested positive for malachite green, that meant that Creative Salmon had either used or introduced malachite green.

[44]            Mr. Staniford knew at the time of the June 24th press release that if malachite green contamination was confirmed in Creative Salmon’s fish, that did not mean that Creative Salmon’s claims to be organic or that it did not use malachite green were dishonest.  As such, 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.  As a result, I have concluded that the defence of fair comment is not available as a defence to the statements Mr. Staniford made in the June 24th press release.

June 27th press release

[45]            The sting in the June 27th press release is that Creative Salmon has been intentionally dishonest regarding its use of antibiotics.  Mr. Staniford points to the fact that there was an inconsistency and misrepresentation on the website concerning the use of antibiotics. 

[46]            The inconsistency Mr. Staniford points to is Creative Salmon’s claim on its website to be antibiotic free, when in fact it feeds antibiotics to its brood stock.  He says the facts on which the opinions he expressed are based are the results of a Freedom of Information (“FOI”) request which disclosed that in 2004 Creative Salmon reported using approximately 250 kilograms of antibiotics on three farm sites.  Those facts are set out in the press release.

[47]            However, Creative Salmon says that the claim on the website pertains only to the production fish, and that the website accurately states that Creative Salmon has not used antibiotics on its production fish since October 2001.

[48]            The portions of the website quoted in the June 27th press release are:

·         The fish that Creative Salmon sells has never been fed antibiotic

·         Fish are grown to harvest side 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

[49]            Creative Salmon says these facts are all true about its production fish and Mr. Staniford has presented no evidence to the contrary.  The evidence is that only the brood stock have been fed antibiotics.  Mr. Staniford states in his argument that he did not rely on any information found on the website regarding the brood stock when he drafted the press release.

[50]            Mr. Staniford received the FOI information about the antibiotic use Creative Salmon reported to the Ministry of the Environment (the “MOE”) on the same day he released the press release.  Mr. Staniford was aware that the FOI information about the antibiotic use had been provided to the MOE by Creative Salmon.  Mr. Staniford’s evidence is that when he received the FOI information he was confused, as the information about Creative Salmon’s antibiotic use did not accord with the statements on Creative Salmon’s website.  Mr. Staniford admits that at the time he authored the press release he knew that the FOI information disclosed that Creative Salmon had used some antibiotics at its sites in 2004, but he did not know if the antibiotics were used on fish that were sold to the public or on the brood stock.  His evidence is that he had no basis for knowing whether or not the antibiotics had been fed to the fish Creative Salmon sold to the public or to their brood stock because the FOI information did not specify whether the antibiotics were given to the brood stock or whether they were given to the fish that were sold to the public.

[51]            However, rather than making any inquiries of Creative Salmon, Mr. Staniford authored and issued the press release calling Creative Salmon a liar and a consumer fraud the same day he received the FOI information.  Although the press release was reviewed by other members of the FOCS prior to its release, Mr. Staniford was the author of the first draft, including the headline of the press release which says that Creative Salmon is involved in a scam.  As well, he authored the words “Creative Salmon is exposed by information supplied by the Ministry of Environment as a liar and a consumer fraud” and the quotes attributable to him in the press release.

[52]            Mr. Staniford quotes from three different sections of Creative Salmon’s website in the press release.  One of the Creative Salmon website pages which Mr. Staniford quoted from in the press release reads:

The fish that Creative Salmon sells has never been fed antibiotic.

As one of the founding members of the Pacific Organic Seafood Association (POSA) we are actively pursuing Organic Certification.

We provide our customers with assurance of wholesome and nutritious Premium Quality Chinook salmon.  We utilize only the best quality feed ingredients, growing conditions and husbandry techniques together with a philosophy that our environment, our employees and our local community are equally important as is the economic bottom line.

[53]            Under some pictures the website continues:

Some facts about your fish:

- No Antibiotics

- No Hormones

- No Malachite Green

- No Sea Lice Treatments (ie SLICE)

- Fed Organic Feed Ingredients

- High Level of Omega 3 & Omega 6

- Low Density Rearing

[54]            Those statements are followed by a picture and then the statement:

1349 days antibiotic free

[55]            The statement regarding how many days Creative Salmon has been antibiotic free updates every day.

[56]            Another page Mr. Staniford quotes from is entitled “Fish health” and reads:

Fish health is an extremely important focus for our operation.  We currently employ 4 full time biologists and our contract veterinarian visits the farms monthly.  Prior to seawater entry our fish are vaccinated against pathogens common to our local area.  Fish are introduced to the ocean disease-free and typically have survival rates greater than 90% during their 18-month production cycle without the use of antibiotics.  In fact Creative Salmon has been antibiotic free since Oct 17, 2001.

[57]            The other website page Mr. Staniford quotes from is headed “Saltwater Operations” and reads:

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

….

Once ready for market, fish are harvested and transported for primary processing in Tofino.

[58]            Mr. Staniford says that central to the defence of fair comment regarding the June 27th press release is whether Creative Salmon has in fact misrepresented its operation on its website.  Although he agrees that some of the statements regarding no antibiotics on Creative Salmon’s website relate to market or production fish, he argues that the statement “1349 days antibiotic free” found at the bottom of the web page entitled “some facts about your fish” is not preceded with a hyphen like the other statements under “some facts about your fish”, and that is an inaccuracy.  He asserts that nothing about the statement qualifies it as applying only to production fish, as opposed to the operation as a whole.  The time period – 1349 days or approximately 3 ½ years – exceeds the farm rearing cycle of 18 months to two years for the production fish.  Mr. Staniford says as a result, a claim to be antibiotic free for a period of 1349 days, particularly in the context of the website’s numerous claims of environmental sensitivity, must be understood by even the closest and most generous reader as a representation respecting environmental impact.  He says that there is no evidence that at the time of the press release Creative Salmon had been antibiotic free for 1349 days because it has admitted to using antibiotics on its brood stock. 

[59]            In my view, the statement must be read in context.  The website page which contained the statement “1349 days antibiotic free” specifically refers to “the fish that Creative Salmon sells” and “some facts about your fish”.  There is no information on the page about the brood stock or any statements about Creative Salmon’s entire operation.  Rather the page is specifically referring to the fish that Creative Salmon sells to the public.  In my view, when read in context, it is apparent that the statement “1349 days antibiotic free” refers to the fish that Creative Salmon sells, not its entire operation. 

[60]            Mr. Staniford also says the statement that “in fact Creative Salmon has been antibiotic free since October 17, 2001” is an outright inaccuracy.  However, that statement must be read in the context of the paragraph as a whole which refers to the 18-month cycle for production fish. The evidence is that Creative Salmon has not used antibiotics on the fish it sells, i.e. its production fish, since October 2001 and that is what Creative Salmon says on its website.

[61]            Although Mr. Staniford argues that the reader would understand Creative Salmon’s website as representing that its entire operation was antibiotic free, the website pages Mr. Staniford refers to are clearly giving consumers information about the production fish, not Creative Salmon’s entire operation. There was no evidence that Creative Salmon intended to deceive the public regarding its use of antibiotics.  Nor was it put to Mr. Evans, the general manager of Creative Salmon, in cross examination that Creative Salmon intended to deceive the public regarding its use of antibiotics. 

[62]            The onus was on Mr. Staniford to ensure his facts were correct before calling Creative Salmon a liar and a consumer fraud.  When Mr. Staniford became aware that Creative Salmon had used antibiotics on three of its sites, he took no steps to determine what the antibiotics had been used for.  In particular, Mr. Staniford took no steps to determine whether Creative Salmon had fed antibiotics to the production fish prior to publishing the press release in which he called Creative Salmon a liar and a consumer fraud. 

[63]            As noted earlier, Mr. Staniford says that the words “scam”, “liar” and “consumer fraud” found in the press release were intentionally chosen by him to act as inflammatory “hooks” or “arresting leads” for the purpose of catching attention.  He argues that the sting is later diffused because professional journalists are trained to discern the extent to which the words are warranted by the juxtaposition of the FOI information and the content of Creative Salmon’s website.  Mr. Staniford asserts that if the press release is read as a whole, the words are merely expressing that there is an inconsistency and a misrepresentation on the website in respect of antibiotic use.

[64]            However, if what Mr. Staniford believed was that there were reasonable grounds to suspect Creative Salmon has not been honest or that there were reasonable grounds to suspect that Creative Salmon has made false or misleading statements to the public, he should have said so.  Mr. Staniford admits that he did not know whether the statements that Creative Salmon was a liar and a consumer fraud were accurate or fair comment at the time he made them, as he was confused when he received the information.  In my view, one cannot call someone a liar and a consumer fraud simply to get the reader’s attention. 

[65]            When one reads the June 27th press release as a whole, it is evident that Mr. Staniford is alleging that Creative Salmon is dishonest, not that there was an inconsistency or a possible misrepresentation on the website regarding Creative Salmon’s antibiotic use.  In the press release Mr. Staniford states that Creative Salmon is “telling blatant lies”, “is exposed … as a liar and a consumer fraud”, and as a result, “its reputation is well and truly shattered”.

[66]            The press release was widely published, including to people other than professional journalists.  The test is not how a professional journalist would interpret the words complained of, but how the reasonable, thoughtful and informed reader would interpret the words.

[67]            In my view, 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.

Are the statements justified, in that they are true?

[68]            In the alternative, Mr. Staniford pleads justification.  In order to rely on a plea of justification the onus is on Mr. Staniford to prove the truth of the statements.  Mr. Staniford did not particularize his plea of justification but he did plead lesser and included meanings for the words complained of in his amended statement of defence.  As stated earlier, I do not accept that the natural and ordinary meanings of the words complained of are the meanings suggested by Mr. Staniford in his amended statement of defence.  In my opinion, the natural and ordinary meanings of the words complained of in both press releases are that Creative Salmon had been intentionally dishonest on its website. 

[69]            Mr. Staniford submits that the report of the CFIA was “reasonable grounds to suspect that the chemical malachite green may have been used or introduced to the plaintiff’s salmon farming operation.”  He says there were grounds for suspicion and the words complained of reflect no more than a justified suspicion by their hypothetical and contingent use of the words “if … confirmed.”

[70]            However, Mr. Staniford was aware at the time of the June 24th press release that if malachite green contamination was confirmed that did not mean that Creative Salmon had been dishonest regarding its use of malachite green, as the malachite green could have come from another source.  As a result, the plea of justification fails regarding the June 24th press release.

[71]            Mr. Staniford has also failed to prove that Creative Salmon lied on its website regarding its use of antibiotics or that it intended to deceive the public regarding its use of antibiotics.  As a result, the plea of justification fails regarding the June 27th press release.

Is the defence of qualified privilege available for the statement regarding a complaint to the Competition Bureau?

[72]            Mr. Staniford asserts that the statement in the June 27th press release that “FOCS is lodging a formal complaint against Creative Salmon with the Competition Bureau under the Deceptive Marketing Practices part of the Competition Act.” is a reasonably accurate report of judicial or quasi-judicial proceedings or intended proceedings and, as such, is accorded a qualified privilege: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.

[73]            In my view, the mere reporting of the fact that FOCS is making a complaint is not defamatory, and therefore it is not necessary to determine whether the qualified privilege applies to the statement.

If either the defences of fair comment or qualified privilege are established, are they defeated by malice?

[74]            Given my conclusions above, there is no need to deal with this issue.

Does the Negligence Act, R.S.B.C. 1996, c. 333 apply, and if so, was Creative Salmon contributorily negligent for the defamatory statements?

[75]            Although Mr. Staniford pleaded that Creative Salmon was contributorily negligent in his amended statement of defence, he made no arguments and presented no evidence in that regard.  The onus is on Mr. Staniford to establish that Creative Salmon contributed to any loss suffered through its own actions.  Having made no arguments nor presented any evidence to support the allegation that Creative Salmon was contributorily negligent, Mr. Staniford has failed to satisfy the onus.

Damages

[76]            Creative Salmon seeks general and aggravated damages.  The amount of damages that are awarded in defamation cases is largely dependent upon the facts of the case.  General damage in defamation cases need not be proved, but rather are presumed and awarded at large and the plaintiff need not show a loss.  The monetary award is to demonstrate to the community the vindication of the plaintiff’s reputation.  Factors to be considered in determining the amount of the award include:

·         the nature of the libel;

·         the mode and extent of the publication;

·         the failure to present a balanced view by presenting both sides of the picture;

·         the desire to increase one’s professional reputation;

·         the conduct of the defendant and defendant’s counsel through to the end of trial;

·         the absence or refusal of any retraction or apology;

·         the failure to establish a plea of justification.

Hill v. Church of Scientology of Toronto, supra, at ¶ 164, 166, 182; Home Equity Development Inc. v. Crow, 2004 BCSC 124.

[77]            Aggravated damages may be awarded in certain circumstances as set out in Hill v. Church of Scientology of Toronto, supra at ¶ 188–190:

Aggravated damages may be awarded in circumstances where the defendants' conduct has been particularly high-handed or oppressive, thereby increasing the plaintiff's humiliation and anxiety arising from the libellous statement.

These damages take into account the additional harm caused to the plaintiff's feelings by the defendant's outrageous and malicious conduct.  Like general or special damages, they are compensatory in nature.  Their assessment requires consideration by the jury of the entire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial.  They represent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant.

If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff.  … The malice may be established by intrinsic evidence derived from the libellous statement itself and the circumstances of its publication, or by extrinsic evidence pertaining to the surrounding circumstances which demonstrate that the defendant was motivated by an unjustifiable intention to injure the plaintiff.

[78]            The law of defamation protects not only individual’s reputations, but the reputations of corporations: Hiltz and Seamone Co. v. Nova Scotia (Attorney General) (1999), 172 D.L.R. (4th) 488 (N.S.C.A.); Ascot Holdings Ltd. v. Wilkie (1993), 49 C.P.R. (3d) 188 (B.C.S.C.).

[79]            Mr. Staniford suggests that a corporate defendant is not entitled to aggravated damages because aggravated damages are for hurt feelings and those can only be sustained by an individual.  However, aggravated damages are awarded not only for hurt feelings, but to take into account the conduct of the person responsible for the defamation.  In determining whether such an award is appropriate, conduct of the defendant outside the court as well as his conduct in the court may be considered: Hill v. Church of Scientology, supra; Hiltz, supra.

[80]            In my view, the defamatory statements are serious.  Mr. Staniford expressly called Creative Salmon a liar, a consumer fraud, and claimed that it was involved in a scam. 

[81]            Mr. Staniford works for a non-profit society and is a dedicated environmentalist whose job at the time of the press releases was to monitor aquaculture in the Clayoquot Sound.  Mr. Staniford’s income is approximately $30,000 a year.

[82]            The FOCS and Creative Salmon have been involved in a long term struggle regarding the impact of salmon farming on the environment.  The FOCS are opposed to open net salmon farming, while Creative Salmon claims that closed containment salmon farming is not economically viable.

[83]            The press releases were widely published and sent to media outlets all over the world.  They were also sent to scientists, restaurant owners, consumers and other individuals. 

[84]            Mr. Staniford did not give a balanced view of the facts.  Although he purports to have a role in educating the public, he did not disclose all the facts known to him or present both sides of the story in the press releases. 

[85]            Creative Salmon asserts that Mr. Staniford was motivated in part by his desire to increase his professional profile; however, there is no evidence to that effect.  There is no doubt that Mr. Staniford uses the media as a tool to publish his concerns and views, but that does not, in my view, mean that he was attempting to increase his personal profile.  Rather, it is apparent that he is very passionate about the environment, and in particular, his concern about the environmental impact of open net salmon farming. 

[86]            Following the press releases, Mr. Staniford was quoted in two press reports as calling for the destruction of Creative Salmon’s fish because of the malachite green contamination.  While advocating the destruction of Creative Salmon’s fish, Mr. Staniford was aware that fish with malachite green residue could be exported to other countries that had tolerance levels for malachite green, and that the reported level of malachite green found in Creative Salmon’s fish was below the level accepted by other countries.  At trial, Mr. Staniford said that the two press reports in which he advocated the destruction of Creative Salmon’s fish were not direct quotes, but he would not say they were inaccurate.  There is evidence that he sent copies of those newspaper articles via email to various people in Tofino.  As well, there is evidence of comments Mr. Staniford made that B.C. farmed salmon posed health risks and that “the only safe approach is for consumers to adopt a zero tolerance to B.C. farmed salmon.” 

[87]            Creative Salmon complains about the conduct of the litigation by both Mr. Staniford and his counsel up to the end of trial.  There is no doubt that this has been a hard fought battle, and that there have been delays occasioned as a result of Mr. Staniford’s actions. 

[88]            Mr. Staniford has not provided any retraction or apology.  He pled contributory negligence, which suggests that if he had been aware of the true facts he would not have defamed Creative Salmon.  However, after being apprised of the true facts, Mr. Staniford neither apologized nor qualified his statements.  Furthermore, he was unable to establish a plea of justification.

[89]            There is no evidence that Creative Salmon suffered any actual loss.  Following the press releases, it was still able to sell its fish for the asking price.  However, there is no doubt that there was damage to its reputation as an honest corporate citizen as a result of the press releases.  Mr. Evans testified that Creative Salmon would like to sell its fish in the local market but cannot because of the anti-salmon farming campaign in which Mr. Staniford has participated. 

[90]            Having considered all of the various factors, including the fact that Mr. Staniford works for non-profit organizations and has a modest income, and that there is no evidence that Creative Salmon was unable to sell its fish as a result of the defamatory statements, it is my view that a general damage award of $10,000 is appropriate.

[91]            It is apparent from the evidence that, although Mr. Staniford’s purported motive was to serve the public interest by educating the public regarding the impacts of salmon farming on public health and the environment, he did not give a balanced or complete view, either in the press releases or his subsequent interviews.  His real motive was to build up public opposition to salmon farming, particularly organic salmon farming.  Part of his job mandate was to build opposition amongst the organic community to open net farmed salmon being labelled as organic. 

[92]            Mr. Staniford’s concern when he published the press releases, and during subsequent interviews, was not whether the allegations were true or whether the public interest was served.  Rather, he used intentionally inflammatory words and withheld facts in order to achieve his goal of increasing opposition to salmon farming.  His reported response to Creative Salmon’s statement that it did not know how malachite green turned up in one of its fish because Creative Salmon does not use malachite green, was that he did not have much sympathy and that Creative Salmon’s fish stocks should be destroyed.  At the time Mr. Staniford advocated the destruction of Creative Salmon’s fish stock, he knew that would have a significant impact on Creative Salmon’s economic well being.

[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.

CONCLUSION

[94]            The words complained of are defamatory, in that the plain and ordinary meaning of the words is that Creative Salmon was intentionally dishonest regarding the information it published on its website.  Mr. Staniford has not satisfied the onus of establishing the defences of fair comment or justification.

[95]            Creative Salmon is entitled to $10,000 for general damages, and $5,000 for aggravated damages.  Creative Salmon is entitled to its costs at scale B, subject to submissions.

“L. Gerow, J.”
The Honourable Madam Justice L. Gerow