Seafarers' International Union of Canada v. International Longshore and Warehouse Union Canada, Local 400

2009 BCSC 1269 Seafarers' International Union of Canada v. International Longshore and Warehouse Union Canada, Local 400 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Seafarers' International Union of Canada v. International Longshore and Warehouse Union Canada, Local 400, 2009 BCSC 1269 Date: 20090904 Docket: S096274 Registry: Vancouver Between: Seafarers' International Union of Canada and Roman Gralewicz Plaintiffs And International Longshore and Warehouse Union Canada, Local 400, and Terry Engler Defendants Before: The Honourable Mr. Justice Myers Corrected Judgment: The cover sheet and text of the judgment was corrected at paragraphs 3, on October 30, 2009 Oral Reasons for Judgment Counsel for the Plaintiffs: R.W. Grant D. Borins Counsel for the Defendants: D.F. Sutherland D. Kripp Place and Date of Hearing: Vancouver, B.C August 31 and September 1, 3 and 4, 2009 Place and Date of Judgment: Vancouver, B.C. September 4, 2009 [1] The plaintiffs apply for an injunction to restrain the defendants from making alleged slanderous statements. [2] The defendant union - the ILWU - is attempting to take over the plaintiff union's - the SIU - representation of deckhands in what are known as the Jones Marine and Cates bargaining units of Seaspan International Ltd. That is known as a "raid". Seaspan is a federally regulated industry and the Canada Labour Code, R.S.C. 1985, c. L-2 governs the labour relations between Seaspan and the unions. Under the Code, the allowable raiding period commenced on July 1, 2009, and will end on September 30, 2009. [3] The statements which are the subject of this action were allegedly made by the ILWU's president, Mr. Engler, at a meeting with a group of approximately 13 SIU members of the Jones Marine bargaining unit on August 19, 2009. Four SIU officers, including the SIU's vice-president, Mr. Jim Given, also attended the meeting with the obvious objective of monitoring what transpired. [4] There are five versions of the alleged statements. Each of the ILWU people who attended the meeting swore affidavits. Mr. Engler also swore an affidavit in which he denied making some of the statements and gave his version with respect to others. The variances in the versions of the statements are not significant to this application. [5] During the course of the hearing, the defendants filed a Statement of Defence asserting the defences of justification, qualified privilege, fair comment, consent and mitigation. [6] The alleged defamatory statements are: a) The SIU is a non-democratic union. b) They don't have elections. c) The SIU are intimidating their members. d) They use threats of Hell's Angels. e) The SIU is a scab union. f) The contract you guys signed is a scab contract. g) The SIU has resorted to violence in the past to solve their conflicts and problems. h) Roman Gralewicz has always been a thug. i) They probably have bats and chains in their car. j) The SIU has abandoned the members on the West Coast. k) The ILWU is the only real union on this coast. l) The SIU is not a real union. m) They have no trade union principles. n) They are leaving this coast. o) The SIU Constitution took away members' rights to vote on contracts. p) They don't have a constitutional port here anymore. [7] At the hearing, the plaintiffs acknowledged that some of the statements, while alleged to be untrue, are not defamatory. [8] In RJR-MacDonald Inc. v. Canada (Attorney-General), [1994] 1 S.C.R. 311, the Supreme Court set out a three-part test which a plaintiff must meet in order to obtain an interlocutory injunction: it must show a fair case to be tried; it must demonstrate that it will suffer irreparable harm if the injunction is not granted; and the balance of convenience must favour the granting of an injunction. In British Columbia, the Courts have, following B.C. (A.G.) v. Wale (1986), 9 B.C.L.R. (2d) 333 (C.A.), sometimes adopted a two-part test in which irreparable harm has been subsumed into the balance of convenience analysis. [9] However, the test for obtaining an interlocutory injunction to prevent defamatory statements has always been a stricter one. It was set out by Garson J. in Compass Group Canada (Health Services) Ltd. v. Hospital Employees' Union, 2004 BCSC 51: [62] The parties agree injunctive relief to restrain alleged defamation is an exceptional remedy which should be granted in only the rarest and clearest of cases. The Court should only issue such relief when the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal. (Lasik Vision Canada Inc. v. TLC Vancouver Optometric Group Inc., [1999] B.C. J. No. 2834, paragraph 20 (S.C.)) [63] In addition, there must be evidence of an intention, or grounds to infer, that the alleged defamation will be repeated or published R.T. Investment Counsel Inc. v. Werry, [1999] B.C.J. No. 756 (S.C.) paragraph 15. [10] The plaintiffs nevertheless urge me to adopt a different test. They argue: In the case of applications for interlocutory injunctions enjoining defamatory speech, the test for injunctions varies depending upon the nature and purpose of the expression. Speech which is primarily in the nature of commercial expression is subject to the usual test for the granting of injunctions, while pure speech, unmixed with a commercial purpose, is subject to a more demanding test. [11] The plaintiffs say that the case at bar falls somewhere between commercial-expression and pure speech, and the test for obtaining an injunction should be tailored accordingly. [12] This submission is largely based on the comments of Bastarache J. in Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626 at paras. 47-49. That case involved an application seeking to enjoin speech which, it was alleged, was in violation of the Canadian Human Rights Act, R.S.C. 1985, c. H-6. Bastarache J. contrasted cases which sought injunctions restricting speech in the commercial context from those involving "pure speech". The latter type of speech does not promote a business or a product; it is more in the nature of the expression of ideas or views. [13] After referring to RJR-MacDonald Inc. and Manitoba (A.G.) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 (neither of which involved defamation), Bastarache J. stated, at para. 47: 47 In my view, the Cyanamid test, even with these slight modifications, is inappropriate to the circumstances presented here. The main reason for this is that Cyanamid, as well as the two other cases mentioned above, involved the commercial context in which the criteria of "balance of convenience" and "irreparable harm" had some measurable meaning and which varied from case to case. Moreover, where expression is unmixed with some other commercial purpose or activity, it is virtually impossible to use the second and third criteria without grievously undermining the right to freedom of expression contained in s. 2(b) of the Charter. The reason for this is that the speaker usually has no tangible or measurable interest other than the expression itself, whereas the party seeking the injunction will almost always have such an interest. This test developed in the commercial context stacks the cards against the non-commercial speaker where there is no tangible, immediate utility arising from the expression other than the freedom of expression itself. [Emphasis in original] [14] I do not accept the plaintiffs' argument on this point. As I have already indicated, the Canadian Liberty Net case was not one involving defamation. The commercial-type cases which Bastarache J. was addressing - to which the Cyanamid test would be applicable - were not defamation cases. Rather than articulating a new test for defamation injunctions, Bastarache J. confirmed the strict common law test and adapted it for use in cases dealing with pure speech in contexts outside of defamation. [15] With respect to defamation cases, Bastarache J. approved the statement of the law set out in Professor (now Mr. Justice) Sharpe's text which he quoted at para. 49: 49 In his treatise Injunctions and Specific Performance (2nd ed. 1992 (loose-leaf)), Robert Sharpe says the following, at paras. 5.40-5.70 (pp. 5.2-5.4): There is a significant public interest in the free and uncensored circulation of information and the important principle of freedom of the press to be safeguarded. . . . The well-established rule is that an interlocutory injunction will not be granted where the defendant indicates an intention to justify [i.e. prove the truth of] the statements complained of, unless the plaintiff is able to satisfy the court at the interlocutory stage that the words are both clearly defamatory and impossible to justify. . . . it seems clear that the rule is unaffected by the American Cyanamid case and that the balance of convenience is not a factor. [16] As I mentioned above, the plaintiffs say that this case falls between the pure speech standard and commercial speech and argue that the threshold test is a flexible one. They therefore submit that the standard for an injunction in this case falls somewhere between a fair case to be tried and the higher standard which I have set out above. If I were to adopt that argument it would be introducing yet another standard for assessing the strength of a plaintiff's case in an injunction application. I think that is something to be avoided. [17] Finally, MacAulay J. in the Lasik case, cited above by Garson J. in the Compass Group case, adopted the interpretation of Canadian Liberty Net that I have expressed here. At para. 3 he stated: With respect to these claims, Lasik concedes that it must satisfy the stringent test for granting an interim injunction set out in Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626 at 667. That is, the Court will only restrain potentially defamatory speech where the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal. This modifies the traditional test for granting an interim injunction as set out in the next paragraph of these reasons. [18] The plaintiffs next argue that a different standard should be applied to the defences raised by the defendants. In support of this argument, the plaintiffs rely on Pilot Insurance Co. v. Jessome, [1993] O.J. No. 172 (OCJ) in which Ferguson J. stated: 28 The guiding principle then is, that the injunction should only issue where the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal. To put it another way where it is impossible to say that a reasonable jury must inevitably find the words defamatory the injunction should not issue. 29 Since it is conceded here that the words are defamatory this additional requirement, read literally, would not seem applicable unless it also applies to the merits of the defence of fair comment so the plaintiffs are required to satisfy me that the defence of fair comment would inevitably fail. Some of the cases cited to me do state that the same test should apply in weighing the defence (eg. see Bonnard v. Perryman, (1891) 2 Ch. 269 cited in Canadian Tire) but I do not think the same burden should be applicable to this issue because it would mean that where the words are clearly defamatory the plaintiff could not restrain the publication until trial even though there was a substantial issue to be tried as to whether the words constituted fair comment and even though the plaintiff could establish that he would suffer damage in the meantime that could not be compensated adequately by damages. In my view the rights of the parties would be more fairly balanced if the plaintiff were entitled to an injunction in cases where the words are manifestly defamatory and the court, exercising its discretion cautiously with due regard for the high value we place on freedom of expression, is convinced, not that there is no reasonable possibility that there is a defence, but that it has been established that there is at least a substantial issue to be tried as to whether there is a defence of fair comment and that the other factors relevant to interlocutory injunctions such as the inadequacy of damages and the balance of convenience warrant an interlocutory injunction. To proceed otherwise would mean that plaintiffs who had strong but not inevitably successful cases would receive no adequate remedy where they proved at trial that they had been unjustifiably defamed. [19] For the following reasons, I decline to follow this decision. [20] I first note that this case was decided before the Canadian Liberty Net case. [21] Second, in Pilot Insurance the lower threshold test was suggested for the defence of fair comment, but not justification. The case therefore contemplates two standards to be applied in defamation injunctions. The higher standard is to be applied to what a plaintiff has to prove (the making of statements which are defamatory) and to one of the defences which a defendant may raise (the truth of the statements). A lower threshold is to be applied to the defence of fair comment, and, although not mentioned, presumably the other defences available to a defendant, such as qualified privilege. (As will be seen, qualified privilege is the basis of my decision in the case at bar.) [22] I do not think that this distinction is in accord with the policy rationale articulated in Canadian Liberty Net or the long-standing defamation cases which it cited. Nor do I see the logic of the distinction. The object of the exercise must surely be to assess the likelihood of a plaintiff succeeding at trial. That is dependant both on what a plaintiff must show in order to succeed and what a defendant must demonstrate in order to make out a defence. [23] This is a case which demonstrates why the strict test enunciated above in the various authorities is a sensible one. There is a legitimate battle underway for the hearts, minds and wallets of union members. Words are the principle means used to persuade employees to sign up with one union or another. In an interlocutory application the Court should not lightly mandate which words may not be used. [24] The final legal point to address is whether a defendant is obliged to adduce any evidence with respect to the defences it raises or whether it is sufficient for it to either file a statement of defence or say that it will raise certain defences at trial. The defendants argue that no matter what standard is to be applied to the strength of the case at the injunction stage, a defendant is obliged to come forward with some evidence to support the defences raised by it. The defendants submit that there is no or insufficient evidence adduced by the defendants in respect to some of the statements that are the subject of this action. [25] There is some authority to support both legal propositions. The quote set out above from Sharpe's Injunctions and Specific Performance notes that no evidence is required with respect to the defence of justification. As I have said, Bastarache J. approved of that statement of the law and it is echoed in other authority. [26] In support of the opposite position, the plaintiffs rely on an unpublished 2006 decision of Ehrcke J. in Friesen v. Chiu (1 September 2006), Vancouver S063414 (B.C.S.C.). The defendant raised the defence of justification and fair comment and argued that an injunction should not be granted because the plaintiff could not show that the defences were bound to fail. Ehrcke J. referred to the Pilot Insurance case and went on to say, at para. 25: On the material before me, I find that the defence of justification or fair comment is likely to fail because of malice. [27] I note that it does not appear that the evidentiary point was fully argued in Friesen, because Ehrcke J. did not refer to any of the authority in support of the contrary position. However, I prefer to decide this case on the narrowest possible basis and will address this issue in respect of the defence of qualified privilege, which I think is determinative of the application at bar. Qualified privilege was not dealt with in Friesen. [28] In Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, Cory J. explained qualified privilege as follows: 78 Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. It was explained in this way by Lord Atkinson in Adam v. Ward, [1917] A.C. 309 (H.L.), at p. 334: . . . a privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential. See also McLoughlin v. Kutasy, [1979] 2 S.C.R. 311at p. 321. [29] In the case at bar the defendants argue that the meeting at which the comments were allegedly made was one cloaked with qualified privilege because, to quote from their statement of defence: (a) The meeting was an information meeting convened at the request of one or more Jones employees in respect of consideration of appropriate Union representation of Jones employees, in which the Jones employees had legal, social and moral interests. (b) The Defendants had reciprocal and corresponding interests and duties to make communication to the Jones employees at their request. [30] Applying the standard required in defamation injunctions, I do not think that this argument is bound to fail. [31] That, however, is not the end of the matter, because privilege can be lost. As Cory J. explained in Botiuk: 79 Where an occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute. It may be defeated in two ways. The first arises if the dominant motive for publishing is actual or express malice. Malice is commonly understood as ill will toward someone, but it also relates to any indirect motive which conflicts with the sense of duty created by the occasion. Malice may be established by showing that the defendant either knew that he was not telling the truth, or was reckless in that regard. 80 Second, qualified privilege may be defeated if the limits of the duty or interest have been exceeded. In other words, if the information communicated was not reasonably appropriate to the legitimate purposes of the occasion, the qualified privilege will be defeated. This was discussed at some length in Hill, supra, and there is no need to repeat it in these reasons. [Emphasis added] [32] The plaintiffs argue that the defendants have not adduced sufficient evidence to establish that they either believed the truth of the statements made or that they were not reckless in that regard. The plaintiffs point, in particular, to the following four statements: The SIU are intimidating their members. They use threats of Hell's Angels. Roman Gralewicz has always been a thug They probably have bats and chains in their car [33] I do not agree with this submission. As the above underlined passages from Botiuk make clear, the onus of showing a defendant's lack of bona fides recklessness with respect to the truth, or lack of belief in the truth of the statements is on a plaintiff. In an interlocutory injunction, I do not think it is up to a defendant to come forward with facts that go to these issues, and certainly not where a plaintiff has adduced no facts to defeat a claim for qualified privilege, as is the case here. [34] This is consistent with English authority. In Quartz Hill Consolidated Gold Mining Co. v. Beall (1882), 20 Ch. D. 501 (C.A.) the publication in issue was a circular sent to shareholders of a company. The defendant argued that qualified privilege existed. At p. 509 Jessel M.R. stated the following, which is just as apt now as it was over 100 years ago: As I said before, it may be answered that it is malicious and not entitled to protection, but that is very difficult to try upon interlocutory application. In the present case the defendant says he is acting bona fide, and there is no evidence against him. But if there were, I think a Judge should hesitate long before he decides so difficult a question as that of privilege upon an interlocutory application, the circular being on the face of it privileged, and the only answer being express malice. Those are questions which really cannot be tried upon affidavit, or in the mode in which an interlocutory application is disposed of. In the present instance I can see no sufficient reasons for taking the circular out of the protection of privilege ... [35] More recently, this decision was applied by the English Court of Appeal in Harakas v. Baltic Exchange, [1982] 1 W.L.R. 958. Denning M.R. stated at 960: This case raises a matter of principle which must be observed. This court never grants an injunction in respect of libel when it is said by the defendant that the words are true and that he is going to justify them. So also when an occasion is protected by qualified privilege this court never grants an injunction to restrain a slander or libel-to prevent a person from exercising that privilege-unless it is shown that what the defendant proposes to say is known by him to be untrue so that it is clearly malicious. So long as he proposes to say what he honestly believes to be true, no injunction should be granted against him. That was made clear in Quartz Hill Consolidated Gold Mining Co. v. Beall (1882) 20 Ch. D. 501 [36] The plaintiffs next say that privilege has been lost because it is clear that the above four statements made by Mr. Engler exceeded the scope of the privilege. [37] I do not agree. The purpose of the meeting was to persuade employees to leave the plaintiff union and join the defendant union. The defendants' argument that the character of the plaintiff union and its president are a legitimate interest of the employees is not one which is bound to fail at trial. [38] I therefore dismiss the plaintiffs' injunction application. [39] As requested by the defendants, counsel may make submissions at a later date with respect to costs. "E.M. Myers J."