Level One Construction Ltd v Burnham 2018 BCSC 1354

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Note

The BCSC dismissed a defamation claim after applying the responsible communication defence and concluding that the words used in a consumer investigation programme would not have been considered defamatory by the average person.

Decision Summary

In October 2013, Level One entered into a contract with the defendant, Marla Burnham, to complete renovations at her home. A dispute arose between them about part of that work and Ms. Burnham wanted to cancel the contract. Level One claimed if she cancelled the contract, it was entitled to retain a portion of the deposit that she had paid. Ms. Burnham found that stance unfair and started a small claims action against Level One in B.C. Provincial Court. Her notice of claim was filed in January, 2014. Level One filed a response in February, 2014.

Ms. Burnham contacted the CBC about her experience via a website soliciting input for a feature called “CBC Investigates". Both a CBC TV broadcast aired and a summary appeared on CBC's website.

Eric Rankin was the reporter assigned to the story. He conducted an interview of Ms. Burnham on February 12, 2014, parts of which were included in a broadcast televised on February 14. That broadcast was summarized on the CBC’s website the same day that the broadcast aired. In addition, Ms. Burnham posted a review recounting her experience with Level One on Yelp.

The plaintiffs allege that during her interview, and in the Yelp posting, Ms. Burnham defamed them. The plaintiffs further allege that her defamation was republished by the CBC.

In defence to the action, the defendants denied that the words spoken and published had a defamatory meaning. In the alternative, Ms. Burnham pleaded justification, fair comment and qualified privilege. The CBC Defendants alternatively pleaded responsible communication, fair comment and qualified privilege.

Madam Justice Sharma states:

For the reasons explained in this judgment, I conclude the plaintiffs’ claims are dismissed because no defamatory meanings were conveyed by the defendants. In the alternative, I find Ms. Burnham can rely on the defence of justification to the extent described in para. 176, and fair comment; the CBC Defendants have established the defence of responsible communication and fair comment.

The case is also significant for an earlier decision (2017) in which the John Miller expert report on responsible communication was ruled inadmissible.

References

Level One Construction Ltd v Burnham 2018 BCSC 1354

Level One Construction Ltd v Burnham 2017 Oral Reasons for Ruling on the Admissibility of the Report of John Miller dated November 2, 2016

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