Trent Uni­ver­sity must face Sub­way law­suit

The Peterborough Examiner - - FRONT PAGE - PAOLA LORIGGIO

An On­tario court has dis­missed a law­suit filed by Sub­way against the CBC over a re­port on the con­tent of its chicken sand­wiches, but says le­gal ac­tion against Trent Uni­ver­sity in Peter­bor­ough can pro­ceed. Sub­way sued both the CBC and Trent Uni­ver­sity, which runs the lab that tested the prod­ucts, for defama­tion over a Fe­bru­ary 2017 broad­cast of “Mar­ket­place” and the ac­com­pa­ny­ing on­line pub­li­ca­tions about the chain’s Cana­dian chicken prod­ucts.

Trent now has less than 30 days to de­cide if it wants to ap­peal the judge’s de­ci­sion to dis­miss the uni­ver­sity’s bid to dis­miss the law­suit.

Sub­way claimed Trent’s re­port — which found only 50 per cent chicken DNA in Sub­way’s chicken sand­wiches with as much soy — was based on a faulty in­ves­ti­ga­tion and caused the com­pany sig­nif­i­cant busi­ness losses.

U.S.-based Sub­way IP, along with Sub­way Fran­chise Sys­tems of Canada and Doc­tor’s As­so­ci­ates in the United States, sought $210 mil­lion in dam­ages.

The CBC and Trent, mean­while, asked the court to throw out the suit be­fore it went to trial un­der so-called an­tiSLAPP leg­is­la­tion, which aims to pro­tect free speech on mat­ters of public in­ter­est.

In a rul­ing is­sued last week, On­tario Su­pe­rior Court Jus­tice Ed­ward Mor­gan found that dis­miss­ing the suit against the broad­caster would ful­fil the

law’s pur­poses in pro­mot­ing par­tic­i­pa­tion in de­bates on mat­ters of public in­ter­est.

“Un­der the cir­cum­stances, I find that th­ese public pur­poses are ful­filled by dis­miss­ing the ac­tion as against CBC.

“They out­weigh any po­ten­tial im­pact that this may have on the pri­vate in­ter­est of Sub­way,” he wrote.

In or­der to get a law­suit tossed out un­der anti-SLAPP leg­is­la­tion, the party be­ing sued must first prove that the is­sues it raised touch on a mat­ter of public in­ter­est. If that test is met, the onus then shifts to the plain­tiffs to es­tab­lish that their claim has merit and that the de­fen­dants have no valid de­fence.

In the CBC’s case, Mor­gan said it was clear the pro­gram dealt with a mat­ter of public in­ter­est.

“The ‘Mar­ket­place’ re­port raised a quin­tes­sen­tial con­sumer pro­tec­tion is­sue. There are few things in so­ci­ety of more acute in­ter­est to the public than what they eat,” the judge wrote.

“CBC made in­quiries of Trent staff — an al­ready in­de­pen­dent source — and hired its own ex­pert to in­ves­ti­gate and ad­vise on Trent’s method­ol­ogy and re­sults,” Mor­gan wrote.

“Th­ese ef­forts to con­tact cred­i­ble sources go a great way to­ward es­tab­lish­ing the re­spon­si­bil­ity cri­te­rion that is fun­da­men­tal to CBC’s de­fence.

“CBC sought Sub­way’s in­put into the ar­ti­cle, and to the ex­tent that it could given Sub­way’s lim­ited will­ing­ness to go on the record, it in­cor­po­rated Sub­way’s po­si­tion into the ’Mar­ket­place’ re­port and the fol­low-up blog. CBC there­fore went sub­stan­tially down the road of ac­com­mo­dat­ing Sub­way’s con­cerns by pro­vid­ing the con­text in which the im­pugned state­ments about Sub­way’s chicken prod­ucts were made.”

Trent’s at­tempt to have the law­suit thrown out un­der anti-SLAPP leg­is­la­tion was un­suc­cess­ful, how­ever. The uni­ver­sity is be­ing sued for neg­li­gence as well as defama­tion, and only ap­plied to have the neg­li­gence suit dis­missed, which the judge called an “un­usual le­gal strat­egy.”

“It would be con­ceiv­able that the part of Sub­way’s suit against Trent al­leg­ing defam­a­tory speech by its per­son­nel when in­ter­viewed on the ‘Mar­ket­place’ re­port amounts to an at­tempt to chill a mes­sage of public in­ter­est. But that ques­tion is not be­fore the court. It is far more dif­fi­cult to con­ceive that the part of Sub­way’s suit against Trent al­leg­ing neg­li­gent lab­o­ra­tory work amounts to an at­tempt to chill any mes­sage at all,” Mor­gan wrote.

While the public has an in­ter­est in see­ing that labs, like doc­tors and other pro­fes­sion­als, are held to an ap­pro­pri­ate stan­dard of care, Trent failed to con­vince the court that the neg­li­gence claim it faces “arises from an ex­pres­sion made by the per­son that re­lates to a mat­ter of public in­ter­est” as re­quired in the anti-SLAPP con­text, he wrote.

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