In an earlier post, we discussed Anti-SLAPP motions in relation to an ongoing matter between Subway and the CBC. In that case, the CBC had conducted an investigation into Subway and the food the company marketed as 100% chicken. Following an 8-month investigation, the CBC concluded that the food only contained 50% chicken meat, while the remainder consisted of what appeared to be soy product. The CBC aired the results of its investigation, and Subway publically denied the claim. Further, the fast-food chain launched a $210 million dollar defamation lawsuit against the broadcaster. Earlier this year, the CBC filed what is known as an ‘Anti-SLAPP’ motion to have the suit dismissed under s. 137.1 (3) of the Courts of Justice Act (the ‘Act’). This section of the Act is aimed at restricting lawsuits strategically filed to protect the plaintiff from criticism on matters of public interest, otherwise known as Strategic Lawsuits Against Public Participation.
On November 22, the Ontario Superior Court of Justice released a decision in which it allowed the CBC’s motion and dismissed Subway’s lawsuit.
The Criteria Needed to Establish SLAPP Litigation
As discussed in the previous post, in order to be successful in an anti-SLAPP motion, the motioning party must demonstrate that the lawsuit surrounds a form of “expression” which was made in relation to a “matter of public interest”.
While Subway argued that the public would have little interest in specifics relating to the DNA breakdown of various ingredients and would be more concerned with a “consumer-oriented assessment of chicken or animal protein content”, the court disagreed. While many people may not regularly check the scientific breakdown of the food that they ingest, the court found that:
There are few things in society of more acute interest to the public than what they eat. To the extent that Subway’s products are consumed by a sizable portion of the public, the public interest in their composition is not difficult to discern and is established on the evidence.
Further, the court emphasized the importance of protecting the industry of investigative journalism as a whole and noted that there was a public interest in protecting those involved in the profession from an undue burden relating to litigation stemming from their work.
Once the CBC had established the public interest, the onus shifted to Subway to demonstrate that its claim against the CBC had substantial merit. Given that Subway was an international fast-food chain known almost solely for being a purveyor of food, the CBC’s claims were not insignificant. They would be likely to have a major impact on Subway’s reputation on a national and potentially global scale.
Subway was not required to demonstrate that it had a winning case to satisfy this criterion. It simply had to prove that it had “more than a mere chance of winning”. Subway was successful in this regard. It provided evidence demonstrating the reach of the CBC’s report, and also obtained its own expert evidence relating to the makeup of its chicken to counter the investigation. In the evidence provided by the fast-food chain, the laboratory results showed significantly less plant protein in the chicken than what was reported by the CBC (1% to the CBC’s 40% or more).
With Subway establishing substantial merit, the CBC then turned to a defence of its broadcast under the banner of ‘responsible communication’. To do so effectively, the CBC had to satisfy a two-part test:
- The report must have been in the public interests; and
- The CBC must have been reasonably diligent in establishing the validity of the claims in the report.
The report had already been deemed by the court to be a matter of public interest, so the CBC moved on to part two of the test. To satisfy this arm of the test, the CBC explained that it had retained Trent University to complete the DNA tests, and that the chicken had repeatedly come back showing significant plant protein in its makeup. The CBC then retained another independent tester to assess Trent University’s results. Lastly, the CBC provided Subway with the results and gave the company ample time to respond before airing the results publicly. In a follow-up piece, the CBC included Subway’s strong disagreement with the CBC’s findings.
The court found that while there may have been issues with Trent University’s methodology, the CBC itself had exercised due diligence in obtaining the information used in its report.
The Balance of Harm
The final determination in deciding whether to dismiss a potential SLAPP lawsuit is to assess the balance of harm between the parties. In the case at hand, the CBC positioned itself providing a service: to inform the public about matters of significant importance; in this case, consumer goods, and truth in labelling items meant for public consumption. The court found that while the investigation may have a broad impact on Subway as an organization, any impact in that regard was outweighed by the public interest in freedom of the press, and the right of the public to know the truth about items meant for their consumption. As a result, Subway’s case against the CBC was dismissed.
It is important to note that Subway has an ongoing action against Trent University, the lab that provided the CBC with the initial results pertaining to the genetic makeup of the chicken. This action was not dismissed under the Act.
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