Written By David Gruber, Mia Laity, Ty Fox and Brienne Gloeckler

Yu v 16 Pet Food & Supplies Inc., 2023 BCCA 397 (16 Pet Food), establishes a new test for pre-trial injunctions against defamatory speech in British Columbia.

In Canada (Human Rights Commission) v Canadian Liberty Net, [1998] 1 SCR 626 (Liberty Net), the Supreme Court of Canada commented in obiter that the framework for injunctive relief established in RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311 (RJR-MacDonald) was inappropriate to apply in the context of defamation cases. Until 16 Pet Food, however, British Columbia courts had not meaningfully weighed in on the appropriate test to apply when one party seeks to restrain the speech of another party before trial.¹

In 16 Pet Food, the British Columbia Court of Appeal (BCCA) identified the test from Bonnard v Perryman, [1891] 2 Ch. 269 (Bonnard or the Bonnard Test) as the correct test to apply. The BCCA modified the Bonnard Test slightly, adding an additional step which guides the court to take the full context of the case into account when granting such an injunction.

Background

Ms. Yelin Yu (Ms. Yu) is a former employee of 16 Pet Food & Supplies Inc., also known as "WooooF". Ms. Yu made several disparaging posts on social media about her former employer, primarily in relation to a power outage at WooooF's store that allegedly caused frozen meat to thaw.

When served with a cease-and-desist letter, Ms. Yu continued her online campaign against the pet food company, including making further posts in relation to the power outage, posts that she had been "lambasted" in the "lawyer's letter", and posts that she "[l]aughed [her] head off" when reading the letter. In response, WoooF filed a without notice application seeking an interlocutory injunction to prohibit Ms. Yu from posting any statements or content online about Woooof or its owners and to remove all related previous posts.

The chambers judge applied the three-part interim injunction test as set out in RJR-MacDonald and granted the injunction. The chambers judge found: (1) there is a serious issue to be tried; (2) the applicant will suffer irreparable harm if the application is refused; and (3) the balance of convenience favours the applicant.

Ms. Yu appealed the decision, claiming that the chambers judge committed an error of law in applying the RJR-MacDonald test in the context of a defamation claim prior to trial, granted an overly broad order, and refused to hear her submissions on costs. 

The Court's Analysis and Decision

The BCCA found that within the context of a pre-trial injunction for defamation, courts in Canada and England have almost universally applied the test from Bonnard instead of the test from RJR-MacDonald.² The Bonnard Test has been cited in different forms and has evolved over time,³ but it ultimately focuses on (1) whether the impugned speech is manifestly defamatory; and (2) whether there is a sustainable defence.

The BCCA identified that it had not yet meaningfully weighed in on the correct test to apply in these circumstances, and took the opportunity in 16 Pet Food to clarify that the Bonnard Test was appropriate to apply. The BCCA also reformulated the test to add a new, second step, which accounts for the full context of the case before the court.

The BCCA formulated the test as follows:

1. The applicant must demonstrate that the impugned words are manifestly defamatory such that a jury finding otherwise would be considered perverse. To do so, the applicant must establish that:

a. the impugned words refer to them, have been published, and would tend to lower their reputation in the eyes of a reasonable observer; and

b. it is beyond doubt that any defence raised by the respondent is not sustainable.

2. If the first element has been made out, the court should ask itself whether there is any reason to decline to exercise its discretion in favour of restraining the respondent’s speech pending trial.

Applying the test in 16 Pet Food, the BCCA found that Ms. Yu's posts had been published and that they would tend to lower WooooF's reputation, but that WooooF did not prove beyond doubt that Ms. Yu had no sustainable defence. In particular, it could not be said that Ms. Yu's posts were actually false. As a result, WooooF failed to establish the necessary elements of the test, and the BCCA allowed the appeal.

Instead of remitting the application back to the chambers judge, the BCCA dismissed WooooF's application as Ms. Yu had deleted the allegedly defamatory posts, there was no evidence that further posts would be made, and thus, an interlocutory injunction was not necessary.

The BCCA also found the original order was overbroad, as it prohibited Ms. Yu from posting anything in relation to WooooF, including positive posts, and prohibited her from making posts to inform others that she was being sued, or even offer an apology to WooooF.

Key Takeaways—A Reformulated Test for Defamation

The BCCA's modification of the Bonnard Test is the new standard for interim injunctions in the context of pre-trial defamation claims in British Columbia.

The BCCA clarified that the second step of the test should take account of the full context before the court, with regard to factors such as:

• the credibility of the impugned words;
• the existing reputation of the applicant;
• whether the applicant will suffer irreparable harm; and
• whether the respondent is likely to continue to publish the impugned words.

The court further clarified:

If the impugned words are not credible, the applicant already has a deservedly poor reputation, an award of damages will suffice and/or the respondent is unlikely to continue to publish the impugned words, the court should normally decline to make an interlocutory order. Such an order would typically be either of little value or unnecessary.

To further discuss the potential implications of 16 Pet Food and the new test to be applied to an interim injunction application against allegedly defamatory speech before trial, please contact the authors or a member of our Litigation practice group.

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