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Hospital Employees’ Union et al |
Date: |
20020628 |
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Docket: |
S023524 |
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Registry: Vancouver |
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IN THE SUPREME COURT OF BRITISH COLUMBIA |
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Oral Reasons for Judgment |
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BETWEEN: |
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55971 B.C. LTD. DOING BUSINESS AS A &
A |
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PLAINTIFF |
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AND: |
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HOSPITAL EMPLOYEES’ UNION IN THE PROVINCE OF BRITISH COLUMBIA, A DIVISION OF CANADIAN UNION OF PUBLIC EMPLOYEES AND CHRIS ALLNUTT
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DEFENDANTS |
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Counsel for Plaintiff: |
Susan A. Griffin
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Counsel for Defendants: |
Leo B. McGrady |
[1] THE COURT: The plaintiff, which I will refer to as A & A, seeks an interim injunction restraining the defendant union and the individual defendant, Mr. Allnutt, from broadcasting or publishing an advertisement called “The Record” or any description of “The Record” which defames the plaintiff pending the trial of this action.
[2] I will note here that the plaintiff abandoned yesterday, in the course of submissions, the third paragraph of its Notice of Motion, and I will be making no ruling in that regard.
[3] The plaintiff, A & A, is a Vancouver based company established in 1958 which provides cleaning services. In April 2002, the Children and Women’s Health Centre of British Columbia issued a request for proposals for cleaning services for its Children’s Ambulatory Care Building. A & A submitted a tender and was the successful bidder for the contract. A & A started cleaning the building on May 15, 2002.
[4] Between May 17 and May 22, 2002, a number of articles were published that stated that one of the plaintiff’s directors and shareholders was an anti-abortionist, and describing some of her past participation in support of her anti-abortion beliefs. The first of the series of articles contained a prominent two-part headline: “Abortion Foe’s Firm wins contract at Women’s Hospital. Deal covers cleaning operations at site of one of B.C.’s major abortion clinics.”
[5] On May 31, 2002, the Hospital cancelled the contract with A & A, relying on a clause in the contract which permitted it to terminate the contract with 90 days’ notice.
[6] On June 12, 2002, the defendant union started running a paid television advertisement called “The Record”, which is the subject matter of the application before me. That advertisement is also on the defendant union’s website, as is a description of the advertisement. The advertisement, which I have seen, is approximately 30 seconds long. It begins with print that says: “Hospital Privatization -- Here’s The Record”, accompanied by a voice saying: “Corporations bidding for contracts in B.C.’s hospitals have a blemished record elsewhere.” The advertisement then shows photographs and describes three particular incidents; namely, “fecal smears, blood and dirt were found on hospital linen cleaned by one company”, with a note on the screen saying that it is identified to have occurred in a San Francisco hospital; “they dumped bloody surgical scrubs in an elevator used to carry patients’ meals”, identified as having occurred in a hospital in Glasgow; and “a thumb fragment was found in a sandwich served by the company”, identified as having occurred in Massachusetts. Immediately following those video clips and statements is an image of a sign for the B.C. Women’s Hospital and voice saying: “Can it happen here? Gordon Campbell’s rush to privatize hospital services has already had some disturbing results”, all of which words are spoken while the image on the screen shows a photograph of the Premier and the two-part headline I referred to earlier. The advertisement concludes with the statement, “Privatization, it’s the wrong answer for patients.”
[7] The defendant union’s website contains a news release dated June 12, 2002, which announces the union’s launching of a major advertising campaign against privatization, invites viewers to view the advertisement “The Record”, by way of a direct link, and claims that the union has purchased $500,000 worth of air time for its TV campaign, which is to run for five of the next eight weeks, including on Chinese and Indo-Canadian programming.
[8] On June 18, 2002, counsel for A & A wrote to the union asking it to voluntarily stop running the advertisement “The Record” on television and on its website, on the basis that “The Record” defamed A & A. Having received no response, counsel for A & A wrote to local television stations and the defendant union’s internet service provider between June 19th and 21st making the same request. Two stations provided a response indicating they would stop running the advertisement, and the balance either failed to respond or responded saying they would continue to broadcast the advertisement for the defendant union.
[9] On June 24, 2002, the within action was commenced and short leave was granted to have the interim injunction application heard yesterday, June 27, 2002.
[10] The plaintiff’s position, put simply, is that the clear imputation of the advertisement is that the plaintiff did the acts of gross negligence referred to in the advertisement or, at the very least, has an equally blemished record of poor quality service and negligent acts. The plaintiff does not oppose the defendant union’s right to provoke public debate on privatization, nor is it attempting to prevent the defendants from airing any part of the advertisement except the reference to it.
[11] The defendants, through counsel, concede that their only issue with the plaintiff, at this point in time, is the personal beliefs held by one of A & A’s directors and shareholders. The defendants do not allege that A & A is guilty of any negligent acts or has any record of poor quality service. The defendants simply assert that the plaintiff has links to a person who has taken extreme steps in support of her anti-abortion beliefs.
[12] Defendant’s counsel concedes that if the imputation and/or innuendo the plaintiff alleges is proven, then an injunction should be granted in this case. However, the defendants say that the alleged imputation and/or innuendo has not been made out and does not arise from the advertisement.
[13] The defendants further say that the advertisement must be looked at in conjunction with other information, including other information on its own website, which clearly identifies the perpetrator of the grossly negligent acts to be a company other than the plaintiff. Indeed, the defendant says the only document which links the plaintiff to the negligent acts referred to in the advertisement is the plaintiff’s own press release issued June 18, 2002, stating that it was demanding an end to the defamatory ad campaign launched by the defendant union.
[14] For the purposes of the application before me, the parties agree, and I conclude following the review of the cases provided by counsel, that the test to be applied in this case is that an interim injunction to restrain speech of the kind sought by the plaintiff will not be granted unless the plaintiff can satisfy the court that the words are clearly defamatory and impossible to justify.
[15] Dealing with the first part of the test, it is clear to me that the advertisement, “The Record”, is defamatory of the plaintiff. It leads to no conclusion other than that the “Abortion Foe’s Firm”, namely the plaintiff, either committed the negligent acts referred to in the advertisement or has an equally blemished record. The defendants cannot rely on the choice not to name the plaintiff specifically when the advertisement so clearly identifies the plaintiff by reference to the headlines referred to and shown in the advertisement. Similarly, it is no answer for the defendants to say that, in other information it has published, it has clarified that the company allegedly guilty of the negligent conduct referred to in the advertisement was a company other than the plaintiff. That other information may never become known to the viewers of the advertisement and, further, does not lessen the imputation that the plaintiff has a similarly blemished record.
[16] With regard to the second part of the test, the defendants do not seek to justify the defamation. Indeed, counsel for the defendants conceded that they do not seek to show that the plaintiff has a blemished record or that the plaintiff is guilty of anything except an association with an extreme anti-abortionist.
[17] It follows, then, that I find that the plaintiff has made out its case for an interlocutory injunction. The defendants will be enjoined from broadcasting or publishing the advertisement “The Record” in its present form, namely with its reference to the plaintiff closely linked with the illustrations of gross negligence, on any television station or on its website until the trial or other disposition of this action or until further order of the court.
[18] The website of the defendant union, as shown in Exhibit F to Mr. Von Dehn’s affidavit, must also be modified, at least, so as to ensure the reference to the plaintiff is not included in the same section or area of the website with the examples of negligent business practices set out on the website.
[19] The order will, of course, also contain reference to the plaintiff’s undertaking as to damages. If the parties are unable to agree on the form of the order, they have liberty to apply to me by telephone for directions.
“A.J. Beames, J.”
The Honourable Madam Justice A.J. Beames