Christian Labour Association of Canada v. Retail Wholesale Union et al




2003 BCSC 2000



Registry:  Vancouver


Oral Reasons for Judgment
Mr. Justice Rice
November 12, 2003


Christian Labour Association of Canada



Retail Wholesale Union, Retail Wholesale Union Local 517
and Retail Wholesale Union Local 580




Appearing for the Plaintiff

A. Favell

Appearing for the Defendants

D.G. Crane

[1]            THE COURT:  This is a Rule 18A application for dismissal of this action by the defendant in an action for libel.  The grounds for dismissal are that the words complained of were published on an occasion of qualified privilege.

[2]            The parties are unions with a history of competition for members.  The words complained of were first published on the defendants’ website about January 1, 2001, and that is where they were first discovered by the plaintiff on December 27, 2001.  The publication continued until around February 2002. 

[3]            I will read the defamatory passage, as it is not too long.  It reads with a heading "LIBERATION" in all capital letters followed by a subheading "DSL workers vote to join Local 517" followed by this paragraph:

Friday, January 12th, 2000, was a historical date for Retail Wholesale Union Local 517.  On that day a majority of the 102 workers at DSL Distribution Canada Ltd. voted to join Local 517 rather than remain with Christian Labour Association of Canada (CLAC).  Until that day Local 517 consisted solely of Rogers Sugar workers.  Finally some new blood after 54 years.  CLAC is what is known in the labour movement as a "rat union."  They are usually invited in to represent workers at the request of the employer.  They then sign a substandard agreement.  This is done in order to make it more difficult for legitimate unions to acquire representation rights.  Once we started to tell people what our WU could do for them, the workers at DSL realized that joining our union was the right way to go.  From then on it was just a matter of approaching enough people outside of work, because the CLAC was working hard on the worksite to keep the unit.  In fact, many workers told us if CLAC had worked that hard in representing their interest, then they probably would not have looked at changing their representation.

It goes on with a final paragraph, which I will not read.

[4]            The parties were invited to consider the difficulties with an application like this.  There are pending applications for particulars and production of documents, and discoveries have not yet been held.  Possibly at or before trial, more information will surface.  The defendant has also pleaded justification and fair comment.  The plaintiff alleges malice.  The awkward situation could arise where malice is proved on this application but is rejected at the trial for fair comment. 

[5]            Still the parties, for the sake of the costs and possible streamlining and possible settlement, want at least one issue determined, that is, whether the use of the plaintiff's website was excessive publication given admissions that the defendant would make. 

[6]            The admissions are, as I understand it, firstly, that the words complained of were defamatory.  Secondly, the statement was aimed only at its own members who would have an interest in receiving the union news.  Thirdly, it is an occasion of qualified privilege.  Fourthly, the general public would not have an interest in the message as a political one or as a public statement.  The defendants' total membership was about 2,300. Fifthly, the visits to the site were, subject to other considerations, at about 530, with no links to or from other sites.  The identity of the visitors cannot be proven precisely.  And finally, no barriers or restrictions to access to members, such as user ID numbers or passwords, were on this website, at least on the part of this website where this message was published.

[7]            On that basis I have agreed to hear the application.

[8]            If the publication was excessive, qualified privilege will be lost.  If it was not excessive, then the defence will be open at trial.

[9]            Mr. Crane, for the defendants argued that although the website was open to the world, it is hardly likely that many persons other than union members would click into the website.  This is evidenced by the small number of visitors in the first place, the subject matter, and the passive nature of the technology -- that is, it must wait to be accessed by a positive step taken by the person accessing -- and that there was no advertising of the website except to the members.  It should be compared to a union newspaper which, the authorities have treated as an acceptable medium for qualified privilege even though persons beyond the target audience do have some access incidentally.

[10]        Next, Mr. Crane argued that the website is the handiest modern method.  Costs of it were not discussed as compared to other means.  It was argued that e-mailing is somewhat more difficult because of the turnover of membership and the difficulty of getting up-to-date e-mail addresses.  Ultimately Mr. Crane argued that if others incidentally received the message, what matters is whether the means of communicating the message were reasonable in the circumstances.

[11]        Mr. Favell urged that it is only speculation as to what were the number of recipients and who were the recipients.  There is no proof offered as to who they are.  There is no tally of them.  And variations on the number of 530 could go upwards easily by means of forwarding, e-mailing, making copies and so forth.  Newspapers may be fine in terms of the incidental communication to ineligible people, but they are at least delivered or made available in a more confined way to the target audience. 

[12]        Mr. Favell said this is not a case of some leakage, for instance to family members in the case of a newspaper.  Here the access was wide open and there could be any number of ineligible or uninterested people who received this message.  It was just not reasonable, he argued, to use a website without restriction if statements like this were going to be made.  He noted that on the defendants’ own system there was a members only chat room where access is restricted and that could conveniently have been used.

[13]        The burden is on the plaintiff to show that the remarks were communicated to persons not entitled to receive the information.  It is for the judge, not the jury, to rule upon the question.

[14]        I will turn to the authorities.  In Brown, The Law of Defamation in Canada, 2nd ed., loose leaf (Ontario: Carswell, 1999), on the question of exceeding the privilege, the author says at page 13-304:

Thus, the defendant's privilege may be challenged on the ground that there has been a publication to parties who were not entitled to receive the information, and whose knowledge of the information was not necessary to the protection of the interest.

And further on the same page and over onto p. 13-305:

Care must be taken in the manner by which information is communicated to those entitled to receive it.  “The method of communication may strip a privilege of its character and transform it into a libel.”  The general rule is that where an occasion is otherwise privileged, a person may take all reasonable and necessary steps in communication of information consistent with the exigency of the occasion, and the communication is privileged even though it is incidentally communicated to some persons not entitled to receive such information.

Unnecessary and uncalled-for publicity may destroy the privilege and leave the publisher open to an action for defamation.

[15]        In a footnote numbered 2011 on p. 13-304, the author says:

Care must be taken that the words reach only those who are concerned to hear them.  If one deliberately adopts a method of communication which gives unnecessary publicity, this is a circumstance to be considered by the jury in determining whether the statement was really made in good faith.  Per Cobbs J. in Sheftall v. Central of Georgia Ry. Co., 123 Ga. 589, 51 S.E. 646 at 648 (1905), noted in 5 Column L. Rev. 610 (1905).

The author goes on to say on p. 13-309 that:

A privilege is not necessarily lost merely because the communication is seen or heard by persons who have no interest in the information.  Where the incidental parties are not otherwise entitled to receive the information publication, the defendant will not be liable if the method adopted in exercising the privilege is appropriate and reasonable under the circumstances.  Thus, in Pleu v. Simpson Sears Ltd. (1977), 15 O.R. (2d) 436 (CA), the defendant issued an order to warn employees about persons who had stolen the plaintiff's wallet and were passing bad cheques.  These orders were posted on each register with instructions that if any person presented a cheque bearing the plaintiff's name he should be detained and security called.  This notice could be seen by persons passing the register.  The court held that the notice was posted for the private information of the cashier, that it was of reasonable size, unlikely to attract public attention, and that it was a common practice in dealing with such problems.  For this reason, the incidental publication to casual observers did not defeat the qualified privilege.

In Tench v. Great Western Railway Co., [1873] O.J. No. 30 (Ont. C.A.), a railway company posted bulletins in the private offices of the company notifying employees of the discharge of the plaintiff for dishonesty.  It was the view of the court that the fact that some of the persons outside the railway might have occasional access to these offices, or that some patrons might be able to see the posters through a wicket window, would not defeat the privilege.  That court also held that the posting of bulletins was preferable to the distribution of circulars to employees of the company, since the circulars might be distributed to those not entitled to receive them.  Strong J. concluded:

...the principle of the authorities is that if the communication is made in a reasonable manner, having regard to the circumstance in which the defendants are placed, it makes no difference that in imparting information to persons within the privilege the alleged libelous or slanderous matter or words is also communicated to others not so included.

[16]        Now, interestingly, in the Pleu and Tench cases there were dissenting opinions.

[17]        Mr. Justice Brooke commented in Pleu at p. 440:

I have no doubt that the defendant acted honestly and in the conduct of his own affairs in passing important information to its employees.  In addition, the communication by the defendant to its employees of this information was justified as a public duty in response to the request of the police to assist them in catching a thief.  But on neither ground was there justification to publish the information in a manner which amounted to publication to any member of the public who might attend at the store and pass in the vicinity of the cash register, nor could this publication to the public be considered as necessary, incidental or reasonably necessary to the publication to staff.  The members of the public who went to the store had no interest in the information that was of such a character that would make it a matter of common convenience for the welfare of the society that the communication to them should be protected at the cost of the plaintiff's reputation: reference to Tench v. Great Western R. Co. and Chapman v. Lord Ellesmere et al., [1932] 2 K.B. 431. 

For these reasons I am of the opinion that the learned trial Judge erred in holding that the occasion of the publication was privileged.

[18]        So the decision turns very much on the court's view of the facts.  And I might just make reference to footnotes 2030 and 2032 of Brown on page 13-309 and 13-310, but I will not read them.

[19]        Jones v. Bennett, [1969] S.C.R. 277, is another case, one of a number where privileged statements lost that status because the statements were taken down by reporters and put in the newspaper, and counsel referred to that in this hearing.  In relation to that line of cases, Brown commented at p. 13-317:

A court's conclusion, however, may be affected by the circumstances of the case.  The test is whether the means used to communicate the information are necessary or reasonable given the importance of the interest and the exigency of the occasion.

And further down the page:

In Fisher v. Rankin, [1972] 4 W.W.R. 705 (B.C.S.C.) the announcement in a union newspaper of the reasons for the plaintiff's discharge was privileged, even though the court recognized that the newspaper was distributed to members of the union not employed where the plaintiff worked or that it might be read by other family members. 

It may be appropriate in some circumstances to put a notice in a newspaper cautioning the public from giving or extending credit to someone (such as an alienated spouse) to whom the defendant, in the past, has extended credit.  However, the publication must not be more extensive than necessary, and defamatory words not necessary to accomplish the purpose must not be included.

[20]        On page 13-322, Brown offers comments about other indiscriminate publications:

It is not only with respect to newspapers that a privileged occasion may be abused, but with any medium that indiscriminately publishes the information.  Obviously, broadcasts over radio and television must also be considered publication to the world.  In Pulp and Paperworkers of Canada v. International Brotherhood of Pulp, Sulphite and Paper Mill Workers, [1973] 4 W.W.R. 160 (B.C.S.C.) the court held that a privilege did not attach to defamatory remarks printed on placards and displayed in a shopping centre, since there was no need to inform the public generally regarding a dispute between two competing unions.  And in Whittaker v. Huntington (1980), 15 C.C.I.T. 19 (B.C.S.C.) the court refused to find a qualified privilege where the defendant appeared on a talk radio show and branded the president of the union and the union itself as being undemocratic.  The same conclusion was reached in Loan v. MacLean (1975), 58 D.L.R. (3d) 238 (B.C.S.C.) when the defendant mayor, in a radio broadcast, repeated the defamatory remarks he made at the town council about the plaintiff.

[21]        Regrettably there is no authority that either counsel or I could find on this issue where the medium was a website.  Mr. Crane kindly referred me to Braintech, Inc. v. Kostiuk (1999), 63 B.C.L.R. (3d) 156, 1999 BCCA 169, which is not a libel action, but it offers an interesting opportunity to consider the significance of the difference in levels of interaction which distinguish the net access from other media.

[22]        So the question is, again, has the plaintiff shown that the message was communicated excessively?  What it has shown is that there was no restriction to access.  For this publication none of the website visitors have been identified as being members of the union or otherwise.  Given that fact alone, it would not be proper for me to speculate.  Without more information, I could infer no more than that the persons accessing were members of the public who were not necessarily interested.  But there is some more information.

[23]        This was a union message to its members, although maybe not entirely.  It was advertised to the members exclusively, and it is fair to conclude, in my opinion, that probably most of the contacts were by members or staff or other closely interested people to whom this occasion would apply, but how many more than a majority again falls back into speculation. 

[24]        There could be other unions, other union members, the media.  One might consider a number of possible people who would be curious.  And I have to find that probably a significant number of those who accessed and presumably read the message were not within the group of interested persons entitled to receive the information, a group which the defendant concedes is the limit and which he pleads is the specific group, the members of the union.

[25]        So that takes us to the next and last question:  has the defendant shown that the wider access to the website was incidental or reasonably necessary.

[26]        The affidavit of Anthony Leong in ¶ 11 says that:

Had the defendant wanted to limit viewing on this web page to union members, it could easily have done so.  It is a relatively simple matter to create a password or a user ID mechanism on a web page to limit access to those individuals who have been given passwords.  Such mechanisms are simple to put in place and often do not require any extra resources from website service providers.  Even if the service provider did not offer this service, there are programs or scripts available that would accomplish this.

And in the next paragraph he says:

I have viewed the defendant's website and note that it already has a page separate from its main web page that it identifies as the members' area.  It would have been a relatively simple matter to limit access to this page to union members who had been given a specific password.

[27]        Tab 9 of the materials, the affidavit of Shawn Maclusta answers this in part.  In ¶ 3 he says that he disagrees that it is a simple matter to create a system of password protection.  He said:

Currently the two locals of the RWU have a total of 2,700 members.  The membership changes constantly as individuals enter and leave the workforce.  With our very limited number of staff members, the task of maintaining up-to-date passwords for the membership is well beyond our current capability.

In ¶ 4 he says:

In any event, the RW website consists primarily of information which would be only of interest to RW members.

[28]        As to necessity, the defendants’ materials include some evidence, some second-hand evidence that is not admissible for determination under Rule 18A.  And as to the absence of any precautions to restrict access in this case, the reason seems to amount mainly to inconvenience.

[29]        Now, there are several cases where using the media to communicate to a smaller constituency has been accepted, for instance, Parlett v. Robinson (1986), 5 B.C.L.R. (2d) 26 (B.C.C.A.) but these were where there was a public issue, where the public as a whole had an interest.  The defendant has not pleaded nor asserted such a fact situation for this application or in this action.

[30]        In my opinion the defendants' claim for qualified privilege on the materials before me must fail.  I find that the likelihood of a significant exposure to persons not interested is there, and that it is excessive because it is not incidental and reasonably necessary to publish the messages on the defendants’ website without restriction.

[31]        It is not that the internet and use of a website is to be discouraged, but if statements are to be made which are admittedly defamatory, and there is a risk of significant numbers of uninterested people seeing it, that can be excessive, and will be if restrictions are available but disregarded.

[32]        Therefore the defendants' claim of qualified privilege must be struck, and so accordingly I would strike ¶ 6 of the statement of defence in its entirety. 

[33]        Costs will be in the cause.

“E. Rice, J.”
The Honourable Mr. Justice E. Rice