September 28, 2012
Mainstream v. Staniford 2012 BCSC

The defendant, Don Staniford, is described in the judgment as “an activist, author and environmental campaigner” who has been involved for many years in organizing groups and campaigns to attack the salmon farming industry. In January 2011, Staniford launched a campaign and issued a press release using mock cigarette packages with statements such as “Salmon Farming Kills”.

The plaintiff, Mainstream, is described as the second largest producer of farmed salmon in B.C. Mainstream asserts that the statements and visual images published were about them. It went on to claim that Mr. Staniford’s statements were understood to mean that their business and products kill people.

Adair J. states the elements of the analysis he must conduct:

I must first determine whether Mr. Staniford’s statements are defamatory, and whether they in fact referred to Mainstream. If I find for Mainstream on these two points, I must next consider whether Mr. Staniford has made out the elements of the defence of fair comment, and, if so, whether Mainstream has proven malice, which will defeat the defence. If Mr. Staniford’s fair comment defence fails, he is liable to Mainstream, and I must then determine the appropriate remedies.

Adair J. goes on to state:

Critical to Mr. Staniford’s defence of fair comment is what Mr. Staniford describes as “peer-reviewed science,” and “peer-reviewed scientific evidence,” beginning in about 2001 or 2002, showing the presence of cancer-causing chemicals in farmed salmon. In Mr. Staniford’s opinion, “based on peer-reviewed science,” farmed salmon contains cancer-causing contaminants and consumption of farmed salmon has elevated risks of cancer. However, when asked to explain “elevated compared to what,” Mr. Staniford said he did not know. Moreover, he was not aware of any research showing that anyone had developed cancer as a result of consuming farmed salmon.

In his defence, Staniford relied on British Chiropractic Association v. Singh, [2010] EWCA Civ 350, [2011] 1 W.L.R. 133 (Singh) “to advance an additional, but important, point in connection with the defence of fair comment…defamation actions…should not be used to settle or attempt to settle scientific controversies.”

Mainstream conceded that “the sting of the statements at issue” concerned a matter of public health, and therefore public interest. “However, Mainstream says that Mr. Staniford cannot satisfy any of the other aspects of the WIC test, and therefore his fair comment defence must fail.”

Additionally, Staniford relied on Singh to support the position that his statements were comment and not fact. Mainstream argued that Singh “cannot help Mr. Staniford because it is inconsistent with WIC.”

Adair J. does NOT find Singh to be inconsistent with WIC “in the way that Mainstream asserts. On a careful reading, the court in Singh analyses statements to determine whether, in pith and substance, they are properly construed as comment, even though they may appear as statements of fact. That is consistent with the approach described in WIC.

At para 174, on the issue of comment vs fact, Adair J. concludes:

…in the cartoon-like context in which Mr. Staniford’s statements are presented, accompanied by the sometimes juvenile and over-the-top prose and blog postings, but also with hyperlinks where a reader can go for more background information, a reasonable reader would understand that Mr. Staniford’s statements are comment, not fact. Mr. Staniford’s judgments have no balance because balance does not exist in Mr. Staniford’s world when it comes to salmon farming. He has dedicated himself to eradicating it.

Adair J. goes on to state that “the comment must be based on a sufficient substratum of facts to anchor it.” After reviewing the facts “that go to the pith and substance of the opinions expressed by Mr. Staniford”, Adair J. concludes that “he honestly believes the opinions he has expressed”.