In Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Incorporated, 2018 ONCA 383, the Court of Appeal considered a defamation claim against the Better Business Bureau (“BBB”).
The plaintiff company had failed to respond to a customer complaint using the BBB protocol, and did not resolve the complaint independently. The BBB changed changed the plaintiff’s rating on its website from “satisfactory” to “unsatisfactory”. About a year later, the BBB adopted a new ratings system, and assigned the plaintiff a “grade” of D-. The plaintiff brought a claim against the BBB in defamation, alleging that the D- grade caused it substantial damages.
On appeal, the Court of Appeal considered (1) whether the D- grade was defamatory, and (2) whether the publication was protected by the defence of fair comment.
In respect of (1), the Court stated that the trial judge was wrong to only consider whether the D- grade was worse than the previous “unsatisfactory” rating. The Court stated that the D- grade had to be considered in light of the BBB’s stated purpose, being “denouncing substandard marketplace behavior”. The Court of Appeal determined that the “plain and ordinary meaning” of the D- grade, considered in the contest of the BBB’s stated purpose, was defamatory.
In respect of (2), the Court of Appeal reiterated the test to establish the defence of fair comment, being: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) whether the person honestly express that opinion on the proved facts; and (e) whether the defendant was actuated by express malice.
The Court of Appeal held that the defence of fair comment applied. In respect of (b) the plaintiff admitted that it had not responded to the individual complaint and the BBB website described how grades were assigned. In respect of (c), the Court stated that while the D- grade might have been harsh, it was an opinion which could honestly be expressed on the facts. Finally, in respect of (e), malice, the trial judge found that there was no evidence that the BBB dealt with the plaintiff differently than any other company, rejecting the plaintiff’s argument that the BBB’s hidden agenda was to force Wash into the BBB’s conciliation process or BBB membership. The Court of Appeal stated that it was open to the trial judge to reach that conclusion. The Court of Appeal dismissed the plaintiff’s action.