A New Trial for Injunctions Against Defamation in British Columbia | Bennett Jones LLP

Yu v 16 Pet Food & Supplies Inc.2023 BCCA 397 (16 Pet Food), established a new test for pre-trial injunctions against defamatory speech in British Columbia.

In Canada (Human Rights Commission) v Canadian Liberty Net, [1998] 1 SCR 626 (Liberty Net)the Supreme Court of Canada commented in obiter that the framework for injunctive relief was established when RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311 (RJR-MacDonald) is inappropriately applied in the context of defamation cases. Until 16 Pet Foodhowever, British Columbia courts have not meaningfully weighed in on the appropriate test to be applied when a party seeks to suppress the other party’s speech prior to trial.¹

In 16 Pet Foodthe British Columbia Court of Appeal (BCCA) defined the test from Bonnard vs. Perryman, [1891] 2 Ch. 269 ​​(Bonnard or the Bonnard’s analysis) as the correct test to apply. BCCA changed the Bonnard’s analysis partially, adds an additional step that directs the court to consider the entire context of the case when granting such an order.

Background

Ms. Yelin Yu (Ms. Yu) is a former employee of 16 Pet Food & Supplies Inc., also known as “WooooF”. Made Ms. Yu made several disparaging social media posts about his former employer, mainly in relation to a power outage at the WooooF store that allegedly caused frozen meat to melt.

When given a cease and desist letter, Ms. Yu is his online campaign against the pet food company, including making additional posts related to the power outage, posts that he was “slammed” by the “lawyer’s letter”, and posts that he”[l]laughed [her] head off” when reading the letter. In response, WoooF filed an application without notice seeking an interlocutory injunction to prohibit Ms. Yu from posting any statements or content online about Woooof or its owners and remove all relevant previous posts.

The chamber judge applied the three-part interim injunction test as set out in RJR-MacDonald and the order was granted. The chamber judge found: (1) there was a serious issue to be tried; (2) the applicant will suffer irreparable harm if the application is denied; and (3) the balance of convenience favors the applicant.

Ms. appealed That’s the decision, saying the chamber judge committed an error of law in applying the RJR-MacDonald trial in the context of a pre-trial defamation claim, granted an overly broad injunction, and refused to hear his submissions on costs.

Court Review and Decision

The BCCA found that within the context of a pre-trial injunction for defamation, courts in Canada and England have almost universally applied the test from Bonnard rather than the test from RJR-MacDonald.² The Bonnard’s analysis was mentioned in various forms and evolved over time,³ but it ultimately focuses on (1) whether the impugned speech is patently defamatory; and (2) whether there is a sustainable defense.

The BCCA determined that it had not yet meaningfully weighed the correct test to apply in these circumstances, and took the opportunity to 16 Pet Food to clarify that the Bonnard’s analysis are eligible to apply. The BCCA also revised the test to add a new, second step, which answers the full context of the case before the court.

The BCCA has structured the exam as follows:

1. The applicant must show that the impugned words are so patently defamatory that otherwise the jury’s finding would be considered perverse. To do this, the applicant must establish that:

a. the impugned words refer to them, are published, and tend to lower their reputation in the eyes of a reasonable observer; and

b. there is no doubt that any defense raised by the respondent is not sustainable.

2. If the first element has been raised, the court must ask itself whether there is any reason to decline to exercise its discretion in favor of suppressing the respondent’s speech pending trial.

Applying the test to 16 Pet Food, the BCCA found that Ms.’s posts had been published. Yu and these will probably lower WooooF’s reputation, but WooooF has not proven beyond doubt that Ms. has no sustainable defense. Yu. In particular, the posts of Ms. Yu. As a result, WooooF failed to establish the necessary elements of the test, and the BCCA allowed the appeal.

Instead of returning the application to the chamber judge, the BCCA dismissed WooooF’s application because Ms. These being the allegedly defamatory posts, there is no evidence that further posts will be made, and thus, an interlocutory injunction is not required.

The BCCA also found that the original order was overbroad, as it prohibited Ms. Yu to post anything related to WooooF, including positive posts, and he is prohibited from making posts to inform others that he has been sued, or even to offer an apology to WooooF.

Key Takeaways—A Reformulated Test for Defamation

The change of BCCA to Bonnard’s analysis is the new standard for interim injunctions in the context of pre-trial defamation claims in British Columbia.

The BCCA clarified that the second step of the test must consider the entire context before the court, with regard to factors such as:

• the credibility of the impugned words;
• the existing reputation of the applicant;
• if the applicant will suffer irreparable harm; and
• whether the respondent is likely to proceed with the publication of the impugned words.

The court further clarified:

If the impugned words are impugned, the applicant already has a deservedly bad reputation, an award of damages is sufficient and/or the respondent is unlikely to continue publishing the impugned ones that word, the court should generally decline to make an interlocutory order. Such a command is usually of little value or unnecessary.