The British Columbia Court of Appeals has ordered a new trial against farmed salmon activist Don Staniford, who was sued in 2005 by an aquaculture company for defamation and later ordered to pay damages and legal fees.
A new trial was made possible after the Supreme Court of Canada last year modified its test for fair comment as a defense to defamation claims, which retroactively places the original trial judge's ruling in error.
In 2005 Staniford represented Friends of Clayoquot Sound when he issued two press releases that claimed Creative Salmon was using the antifungal malachite green at its chinook (king) salmon farm in Tofino, B.C. Creative Salmon, which had claimed that its fish were free of chemicals, sued Staniford for defamation and in January 2007 was awarded CDN 10,000 (USD 8,006; EUR 6,283) in general damages and CDN 5,000 (USD 4,001; EUR 3,140) for aggravated damages; Staniford was also ordered to pay CDN 70,000 (USD 56,024; EUR 43,971) in legal fees.
Staniford, who is now the European representative for the Pure Salmon Campaign of Washington, D.C., did not return calls or e-mails seeking comment. His appeal hearing took place in December.
Tim Rundle, GM of Creative Salmon, said on Wednesday that he was not sure how the company would proceed, adding that another trial would be a big undertaking for the small company. Creative Salmon produces about 1,500 metric tons of king salmon annually.
In his decision, Justice David Tysoe wrote that the trial judge applied the wrong test for fair comment during the original trial. Canada's Supreme Court has since redefined fair comment in a libel case filed by activist Kari Simpson against broadcaster Rafe Mair and his then-employer, WIC Radio Ltd. Mair, a "shock jock" radio host who used controversial language and characterizations regarding Surrey activist Simpson and her complaints about a gay teacher, won the controversial case.
According to the new law, fair comment must be a matter of public interest; be based on fact; be recognizable as comment; and meet the test that anyone of fair mind could express the opinion based on proven facts. Fair comment no longer entails a defendant to satisfy "subjective honest belief," which the trial judge required. Tysoe ruled that Staniford could not rely on the fair comment defense because the first news release contained false statements.
Creative Salmon's claims against Staniford have not been dismissed; the Court of Appeal concluded that a trial judge would have to find malice on the part of Staniford.
