Special Costs: When Pursuing Your Defamation Claim May Cost You

A Plaintiff in a defamation action not only had its action dismissed, but its hands slapped by the Court with an order that it pay the Defendants special costs in the case of Taseko Mines Limited v. Western Canada Wilderness Committee, 2016 BCSC 109. Special Costs are only awarded against a party who has engaged in reprehensible conduct. In Taseko Mines Limited v. Western Canada Wilderness Committee, the Court found it was reprehensible for the Plaintiff to have continued in its claim for punitive damages and special costs in circumstances where the Plaintiff should have known that such damages were not warranted. The Court found that seeking punitive damages in this way was “an economic threat” which may “serve to silence critics.”

The Plaintiff, Taseko Mines Limited, sued the Defendants, Western Canada Wilderness Committee and Sven Biggs, for five alleged defamatory statements. The Defendants pled that the action was an improper use of the litigation process, an abuse of process and that the Plaintiff was seeking to use the law of defamation to limit freedom of expression.

Taseko Mines Limited had applied for federal and provincial approvals for an open pit mine.  An environmental review panel, citing adverse environmental impacts, rejected the proposal. The Plaintiff submitted a second proposal, and the Canadian Environmental Assessment Agency (“CEAA”) invited comment from the general public. During the second proposal, the Defendants posted three articles on its website. The articles claimed the project could threaten thousands of fish as it would turn a nearby lake into a “dump site for toxic tailings”. The articles requested its readers to use the Defendants’ online correspondence tool to submit a comment to the Environmental Assessment Panel (“EAP”).

The Plaintiff filed a defamation suit seeking damages, including punitive damages and special costs, in response to these articles. After the defamation action was commenced, the Defendants published two more articles which claimed the Plaintiff was using the litigation process to silence critics on a matter of public importance, and described the Plaintiff’s efforts as a “strategic lawsuit against public participation” or “SLAPP”. The Plaintiff amended its defamation claim to also include claims that allege these two articles were also defamatory.

The Court ultimately dismissed all five defamation claims. The Court found the first three articles were not defamatory and further, that the defence of fair comment was available. With respect to the last two articles, which were found to be defamatory, the Court ruled that the defence of fair comment was available. In doing so, the Court found that a person might honestly express the opinion that the action was a SLAPP suit.

The Court specifically rebuked the Plaintiff’s conduct of continuing to plea and maintain serious allegations against the Defendants in spite of the EAP’s report. In regard to the second proposal, the key findings of EAP’s report identified adverse environmental impacts similar to those the Defendants had described in its first three articles. Despite this, the Plaintiff continued to seek punitive damages and special costs.

The Court stated at paragraph 198 of the decision that:

    “Where serious allegations are made, especially in connection with free expression, such allegations should be withdrawn where, as matters unfold, it becomes apparent that a proper basis does not exist for the allegations.”

In reaching this finding, the Judge expressed that he did not wish to create cost consequences that might be unique to a SLAPP suit, and instead applied the usual test applicable for an award of special costs. The usual requirement for an award of special costs is a finding that the party engaged in outrageous, scandalous or reprehensible conduct, as well as milder forms of misconduct which is deserving of rebuke from a Court or Tribunal.

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