Bloomex Inc v Canadian Broadcasting Corporation, 2021 ABQB 214

Court of Queen’s Bench of Alberta Citation: Bloomex Inc v Canadian Broadcasting Corporation, 2021 ABQB 214 Date: 20210322 Docket: 1901 04987 Registry: Calgary Between: Bloomex Inc. Plaintiff/Applicant - and - Canadian Broadcasting Corporation Defendant/Respondent _______________________________________________________ Reasons for Decision of Honourable Madam Justice A. Woolley _______________________________________________________ Background to the Application [ 1 ] In November 2018, the Defendant Canadian Broadcasting Corporation (CBC) published an

article and a video about the business practices of the Plaintiff Bloomex Inc. (Bloomex). CBC said, “Bloomex’s bouquets don’t always arrive as advertised.” It stated that five bouquets ordered by the CBC did not arrive “within the selected delivery window, even though Marketplace had paid extra for them to be delivered on time”. It claimed that a professional florist graded all five bouquets received by CBC “as a ‘fail’ due to the poor quality and condition of the flowers”.

CBC reported that “dozens of unhappy customers have been in touch with the program complaining of poor-quality flowers, late delivery, or no delivery at all”. [ 2 ] In one portion of the video, CBC showed a florist, Mr. Don Waltho, looking at the Sweet Blossoms Collection 1 bouquet. Mr. Waltho said with respect to that bouquet, I know that they’re not fresh because we can see how the chrysanthemums are wilted in bloom. And again, if we’re looking at the greenery as it comes into your home, so again it discolours the water , it looks slimy, it’s a mess. [ 3 ] The CBC reporter, Ms.

Charlsie Agro, then said “Yeah, we just got this” and pointed at the vase, which contained the bouquet and discoloured water. Mr. Waltho responded, “Are you sure?” and Ms. Agro said, “Yeah”.

[ 4 ] Ms. Agro then asked, “Sweet Blossoms Collection #1. Pass or fail?” to which Mr. Waltho responded “Oh, it’s a definite fail, only because of the quality and condition of the flowers”. [ 5 ] The

article also included a series of photographs under two columns, “What we bought” and “What we got”. Under “What we bought” were photographs of various floral bouquets, apparently from the Bloomex’s website. Under “What we got” were pictures of the bouquets received by CBC, taken at the Pickering Farmers’ Market a day after they were delivered. The bouquets were displayed at the Pickering Market to be shown to Mr. Waltho and various passersby. [ 6 ] For the Sweet Blossoms Collection 1 bouquet, there were two photographs shown in the “What we got” column.

Both contained arrows pointing directly at the vase containing the flowers and the discoloured water, one from further away (showing the vase, water and bouquet) and one from close up, specifically focusing on the discoloured water in the vase. [ 7 ] One clip in the video showed a bouquet being delivered; the clip shows the bouquet wrapped in plastic and paper. It is evident from the clip that the bouquet is not in a vase. [ 8 ] CBC acknowledges that none of the bouquets were delivered in vases or water. [ 9 ] On April 8, 2019, Bloomex filed a Statement of Claim in defamation against CBC as a result of the

article and video. It identifies as defamatory CBC’s depiction of the bouquets “as having been delivered in green and murky water, with broken stems, and with missing, wilting, and dying flowers”; Mr. Waltho’s comments about the bouquets; comments made by Ms. Agro in the video; and CBC’s description of the complaints made by consumers. Bloomex claims that the

article and video were defamatory because they: meant and were understood to mean that Bloomex: (

a) engages in false advertising; (

b) sells products of markedly lower quality than as advertised; (

c) routinely falls to deliver its products on time; (

d) is indifferent to its customers' concerns; and (

e) refuses to issue refunds to unsatisfied customers. [ 10 ] On May 24, 2019, CBC filed its Statement of Defence. The substance of CBC’s defence is that the statements it made about Bloomex are substantially true or fair comment. It further pleads that its statements were responsible communication on matters of public interest, and that it conducted a fair and thorough investigation, in which Bloomex was given an opportunity to comment and respond. [ 11 ] On August 10, 2020 Bloomex filed an application seeking

summary judgment with respect to a part of its claim (“Application”). In particular, it says that this Court can determine summarily that CBC defamed Bloomex by “falsely stating that it received a bouquet from Bloomex in green and murky water”, that CBC has no defence to this claim, and that Bloomex is entitled to damages arising from CBC’s defamation. [ 12 ] For the reasons set out below, I reject Bloomex’s Application. Issues in an Application for

Summary Judgment [ 13 ] The general question I must answer is whether Bloomex has satisfied the test for

summary judgment as set out by the Supreme Court in Hyrniak v Mauldin , 2014 SCC 7 at para 49 : There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [ 14 ] In light of the guidance provided by the Court of Appeal’s decision in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 , and the particular issues raised by Bloomex’s Application, that general question can be further specified as follows: (

a) Is it possible to fairly resolve the dispute on a

summary basis, taking into account that Bloomex seeks

summary judgment for only part of its defamation claim against CBC? (

b) Has Bloomex met its burden to show that CBC has no defence to this aspect of its defamation claim, and that there is no genuine issue requiring a trial? (

c) Has CBC demonstrated that there is a genuine issue requiring trial? (

d) Do I have sufficient confidence in the state of the record to exercise my discretion to resolve the issue summarily? [ 15 ] In answering these questions, I must bear in mind that the question of whether there is a genuine issue for trial is not a question of whether a particular outcome is obvious, highly likely or unassailable; rather, the issue is whether Bloomex’s claim can be fairly and justly determined through a

summary procedure: Hannam v Medicine Hat School District No 76 , 2020 ABCA 343 at para 157-161 .

[16] Further, the Court should not be reluctant to make factual determinations in an application for

summary judgment, providedthat the contested facts do not raise a genuine issue requiring a trial. The burden is on the “moving party…to prove those facts on whichit relies on a balance of probabilities”: P & C Lawfirm Management Inc v Sabourin 2020 ABCA 449 at para 39. [17] At the same time, however, if an applicant does not make its case on the balance of probabilities – whether because theevidence does not establish the facts and law necessary to entitle it to a remedy, or because the Respondent brings sufficient evidence inrebuttal – the Applicant is not entitled to

summary judgment.

Summary judgment is premised on two things: judgment being warrantedgiven the facts and law, and judgment being appropriately granted on a

summary basis. If the Court is not satisfied of either of thesethings – if it is not persuaded on the balance of probabilities that the Applicant should prevail on the merits, or that the decision canfairly be made summarily – it ought not to grant

summary judgment. Analysis Is it possible to fairly resolve the dispute on a

summary basis? [18] Bloomex asks me to summarily decide that the defamatory quality of single aspect of a publication – all or most of whichBloomex also alleges is defamatory – is sufficient to justify an award of damages for defamation. The question this raises is, is it possibleto make such a decision fairly? [19] To put it more specifically, can I fairly decide that Bloomex has established a claim for defamation against CBC with respectonly to CBC’s depiction of the discolouration of the water, leaving Bloomex’s claims with respect to the rest of the

article and video forassessment at trial? [20] Bloomex submits that I can. It says that it is undisputed that the Sweet Blossoms Collection I Bouquet was delivered in plasticwrapping, not in a vase, such that the only issue to be decided is whether CBC’s portrayal of the bouquet in green and murky water wasdefamatory; it says that this is a question of law suitable for

summary judgment. [21] There is no doubt that recent case law from the Court of Appeal has confirmed the desirability of resolving cases summarilywhere it can be done fairly; it has clearly stated that judges must be to make the necessary findings of fact to allow such resolution tooccur: Weir-Jones at para 36; Hannam at para 148. [22] The Court of Appeal has also held, however, that partial

summary judgment depends on the issue in question being capable ofbeing decided “discretely, and fairly”: Baim v North Country Catering Ltd., 2017 ABCA 206 at para 11. [23] In my view there are significant difficulties with discretely and fairly assessing the defamatory nature of part of a publicationall or most of which Bloomex says is defamatory. Considering only one aspect of the alleged defamation creates two risks.

First, itcreates the risk that the judgment will be made unfairly and contrary to the requirements of the law of defamation which, with respect todefamatory effect, substantial truth and responsible communication, require consideration of the context and publication as a whole.Second, to the extent the

summary judgment application takes into account the context and publication of a whole, the judgment will beconsidering the same factual and legal issues that will be before the trial justice, creating the risk of inefficiency and incoherence in thelegal process. [24] I will elaborate these two risks through considering each of defamatory effect, substantial truth and responsible justification,as set out in the law of defamation, and as they arise in the context of this Application. [25] With respect to defamatory effect, the law of defamation concerns itself with reputational injury, with statements that “wouldtend to lower the plaintiff’s reputation in the eyes of a reasonable person”: Grant v Torstar Corp, 2009 SCC 61 at para 28.

As a result, atrier of fact must assess the reputational effect of the publication – that is, whether the publication had a defamatory effect. [26] Case law establishes that in assessing defamatory effect, the publication must be assessed as a whole, rather than dissectedinto “incriminating fragments”: Kent v Martin 2016 ABQB 314 at para 108.

The Court must look at defamatory effect in light of “all thecircumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, theaudience to whom they were published and the manner in which they were presented”: Botiuk v Toronto Free Press Publications Ltd, (SCC), [1995] 3 SCR 3 at para 62, citing The Law of Defamation in Canada (2d ed., 1994). Given this case law, I amnot satisfied, that it is legally proper to assess the defamatory effect of a single part of CBC’s publication. [27] Doing so also seems strained and artificial.

In its Application Bloomex asserts that the statements by CBC are defamatorybecause “they convey that: (

a) Bloomex engages in false advertising; and (

b) Bloomex sells products of markedly lower quality than asadvertised”. [28] It is difficult, though, to assess the validity of this claim if considering only the statements and depictions regarding thediscoloured water. What if, for example, the story about Bloomex had said that Marketplace received bouquets on time and lookingexactly as portrayed on the website, with the exception that it depicted the bouquets in slimy and green water.

That is, what if the articleand video contained all the same depictions of the discoloured water in the vase, but everything else said about Bloomex in the articleand video were positive.

In that context – where everything said about Bloomex is positive, with the exception of the depiction of thediscoloured water – would the depiction of the coloured water convey that Bloomex engages in false advertising and sells products ofmarkedly lower quality than advertised? [29] Or, alternatively, what if CBC had published only a single statement, perhaps a reporter tweeting, “I ordered a bouquet fromBloomex and it discoloured the water, it looks slimy, it’s a mess”?

Again, would that statement on its own convey that Bloomex engagesin false advertising and sells products of markedly lower quality than advertised?

[30] These examples are obviously hypothetical and are not offered to diminish the seriousness of the claim made by Bloomexagainst CBC. CBC’s depiction of the discoloured water was not made in an otherwise laudatory article, or on its own. The examples are,however, offered to suggest that the defamatory effect claimed by Bloomex – of false advertising and markedly lower quality products –is difficult to assess accurately and fairly without considering the context of the

article and video in which the depiction of thediscoloured water was made. Further, to make such an assessment would be contrary to the direction provided by this Court in Kent andthe Supreme Court in Botiuk. [31] Yet, to the extent the assessment of the defamatory effect is not assessed discretely, and instead considers the context of thevideo and

article as a whole – “all the circumstances of the case” – the same factual and legal issues will arise again at trial. TheApplication will be about whether the whole of the video and

article are defamatory; so will the trial. [32] Similar issues arise with respect to CBC’s substantial truth defence. The truth defence in defamation focuses not on the preciseaccuracy of each statement in a publication, but rather on the substantial truth of the allegations the publication contains. As a 1994decision of Justice McMahon explained, “It is not necessary to prove the truth of each word. It is sufficient if the substance of theallegations is justified”: Sidorsky v CFCN Communications Limited, (1994) (AB KB), 23 Alta LR (3d) 116 at para185.

In Sidorsky, while Justice McMahon found that one part of the media report was a partial truth and misleading, “this one instance ofpoor judgment does not negate the overwhelming proof of the balance of the evidence that the sting of the allegations was justified”:Sidorsky at para 195.

The Court of Appeal affirmed Justice McMahon’s analysis on justification: Sidorsky v CFCN CommunicationsLimited, 1997 ABCA 280 at para 23-24. [33] Judges across Canada have cited with approval a description of how to approach substantial truth set out in The Law ofDefamation, that the truth justification does not require proof of “the literal truth or ‘truth of every fact’ in the publication, if theadditional facts do not constitute a separate defamatory imputation, and the justification otherwise meets the gist or sting of the charge.Substantial truth is the test”.

Cited in, Jones v Barton, 2014 NBQB 42 at para 52; Taylor v Lamon, 2013 SKQB 144 at para 129;Makow v The Winnipeg Sun et al., 2003 MBQB 56 at para 61; Hawkins v Jamieson, 2020 NBQB 83 at para 91. See also: Casses vCanadian Broadcasting Corp., 2015 BCSC 2150 at para 550. [34] In this Application, CBC disputes Bloomex’s characterization of the segments related to the discoloured water and providesevidence that its depiction of the bouquets accurately reflected the condition in which CBC received them.

That is, it provides evidenceto demonstrate that the flowers were in poor condition and discoloured the water in which they were placed, and it submits that thearticle and video accurately depict these facts. [35] Even if, however, I rejected CBC’s evidence and submissions in this respect, and found that the

article and video untruthfullydepicted the bouquet as having been delivered in green and murky water, it would be unfair and improper to assess CBC’s truth defencewithout considering the substantial truth of the publication as a whole. And that substantial truth cannot be assessed without consideringCBC’s evidence regarding the condition in which it received the bouquets, the type of flowers they contained and the time they weredelivered, along with its evidence regarding the numerous complaints it had received about Bloomex and the efforts it made toinvestigate those complaints.

In the context of that broader evidence, this “inaccurate” depiction of the bouquet as having been deliveredin green and murky water could be simply “one instance of poor judgment [that] does not negate the overwhelming proof of the balanceof the evidence that the sting of the allegations was justified”: Sidorsky at para 195. [36] As a result, to assess CBC’s substantial truth defence in this Application requires considering the truth of the depiction of thediscoloured water in relation to the veracity of the publication as a whole; to do otherwise would be legally unsound.

It would also beunfair to CBC, who ought to be entitled to defend the sting of its allegations against Bloomex in light of the totality of its publication.Yet, as was the case with defamatory effect, if the veracity of the publication as a whole is considered as part of this Application, I willnecessarily be considering the same issues that will arise at a subsequent trial. [37] Finally, with respect to CBC’s responsible communication defence, the British Columbia Court of Appeal has held, relying onEnglish authority, that an

article must be considered “as a whole, not only in determining whether the

article was in the public interest,but also in considering the standard of responsibility exhibited by the author”: Wilson v Canwest Publishing Inc, 2018 BCCA 441 atpara 23. The Supreme Court has similarly observed that “when determining responsibility, the jury must consider the broad thrust of thepublication as a whole rather than minutely parsing individual statements”: Cusson v Quon, 2009 SCC 62 at para 30. [38] CBC has provided evidence about its investigation and preparation of the Bloomex story, which I describe below whenaddressing whether CBC has raised a genuine issue for trial.

That evidence does not focus on the basis for CBC’s report on thediscolouration of the water, but rather on the basis for its decision to investigate Bloomex’s business practices, the complaints it received,the steps it took to verify those complaints, the process for determining how to present the story to the public, and how it involvedBloomex and sought its input. CBC’s responsible communication defence requires consideration of the totality of the publication and itsorigins, as a matter of law and of fairness.

Yet, again, these would be matters necessarily arising again at trial of the rest of Bloomex’sdefamation claim against the CBC. [39] What this discussion shows, in my view, is that it is not possible to consider Bloomex’s claim and CBC’s defences in a waythat is legally sound and fair, but which is also discrete and not duplicative of what will be considered at an eventual trial. This furthershows that it is not possible to fairly resolve this dispute summarily. [40] In Hyrniak at para 60, the Supreme Court recognized that it may not be in the interests of justice to grant

summary judgmentwhere some of the claims will go to trial in any event, noting that doing so “may run the risk of duplicative proceedings or inconsistentfindings of fact”. And, as noted, the Alberta Court of Appeal has said that partial

summary judgment depends on issues being capable ofdiscrete assessment: Baim at para 11. [41] The Ontario Court of Appeal has also emphasized the problem of duplication of effort and inconsistent findings in applicationsfor partial

summary judgment. In Service Mold + Aerospace Inc v Khalaf, 2019 ONCA 369 at para 14, it held that caution must beexercised when granting partial

summary judgment:

The principles that guide whether partial

summary judgment is appropriate are, however, more complex than those that apply to

summary judgment motions generally. In Hryniak , at para. 60 , Karakatsanis J. recognized that partial

summary judgment may “run the risk of duplicative proceedings or inconsistent findings of fact” at trial. There is also the risk that partial

summary judgment can frustrate the Hryniak objective of using

summary judgment to achieve proportionate, timely and affordable justice. If used imprudently, partial

summary judgment can cause delay, increase expense, and increase the danger of inconsistent findings at trial made on a more complete record … For this reason, while partial

summary judgment has its place, it “should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner”: Butera [ v Chown, Cairns LLP , 2017 ONCA 783 ] at para 34. [ 42 ] Similar concerns were noted by Justice Gates in denying leave to seek partial

summary judgment in Wenzel v Nenshi , 2015 ABQB 742 , which also involved a claim for defamation. Justice Gates emphasized the risks of duplication, inconsistent findings of fact and potentially fettering the trier of fact’s assessment of the evidence: In my view, the Plaintiff seeks to split his case under the guise of a

summary judgment application. The purpose of

summary judgment is to save time and avoid unnecessary court proceedings. I fail to see how the Plaintiff’s proposed approach can result in anything other than the potential duplication of effort and an unwarranted use of precious court time. Moreover, the prospect of two processes – a

summary judgment application and a jury trial – creates potential conflict in terms of the assessment of damages. How does a jury deal with the issue of damages if general damages on a portion of the Plaintiff’s claim have already been assessed by the motions judge hearing the

summary judgment application? Are the findings of fact made by the motions judge res judicata in terms of the jury trial? While it is obviously possible that the issues to be determined in the

summary judgment application will be distinct and neatly separated from those placed before the jury, this seems unlikely under the circumstances. In the result, the resolution of the total dispute becomes potentially complex and “messy”: Wenzel at para 38-39 . [ 43 ] Here, consistent with the cautions noted by the Ontario Court of Appeal and by Justice Gates, key aspects of the evidence cover factual and legal issues that would have to be addressed again at trial; it is not apparent that efficiency, fairness or the administration of justice would be advanced by that duplication.

Rather, there is a risk that a partial determination of Bloomex’s claim would create duplication of effort, create uncertainties about the legal effect on a subsequent trial of decisions on fact and law made in the Application, and in general make the resolution of the dispute complex and messy. [ 44 ] In its Statement of Claim, Bloomex identifies the key part of the defamation as that the

article and video purport “to depict Bloomex bouquets as having been delivered in green and murky water, with broken stems, and with missing, wilting, and dying flowers. However, the bouquets were not delivered in such condition, whether in water (let alone green and murky water) or otherwise”. I am troubled by the possibility suggested by this Application, that Bloomex could bring

summary judgment applications for each aspect of this claim, for the water, the stems, the missing flowers. [ 45 ] Further, and importantly, while Bloomex may wish to parse the publication into distinct parts to pursue its claim, it raises serious concerns of fairness to deny CBC the opportunity to defend the totality of its video and

article as justified, responsible and true. [ 46 ] As already noted, and as discussed further below, CBC defends the substantial truth of its publications, and argues that the publications reflected responsible communication on a matter of public interest. It provides evidence on both of these issues in relation to the totality of its portrayal and development of the Marketplace

article and video. CBC’s evidence in that respect is as yet not fully tested – it is affidavit evidence from one witness, and not the viva voce evidence from multiple witnesses that it will bring at trial. Nonetheless, that evidence is sufficient to show that CBC ought to be given its day in court and the opportunity to prove what its evidence suggests, which is that its reporters and producers acted carefully and competently to accurately inform the Canadian public about deficiencies in Bloomex’s business practices. To do otherwise would be unfair. [ 47 ] In sum, I find that Bloomex’s claim cannot be fairly decided on a

summary basis. The alleged defamation, and CBC’s defence to it, require consideration of the whole

article and video, the effect they create, their substantial truth, and the steps taken by CBC in preparing them. To parse off the one part of the alleged defamation would either distort the analysis by removing consideration of the totality of the circumstances or, alternatively, would create the risks and costs associated with considering the same facts and questions of law in two separate legal proceedings. [ 48 ] While this conclusion is sufficient to decide the Application, I will go on to consider the rest of the Weir- Jones analysis. As I explain below, doing so supports the conclusion that Bloomex ought not to be granted

summary judgment. Bloomex has not shown that CBC has no defence its defamation claim; further, CBC has demonstrated that there is a genuine issue for trial.

Has Bloomex met its burden to show that CBC has no defence to this aspect of its defamation claim, and that there is no genuine issue requiring a trial? [ 49 ] Grant v Torstar at para 28 sets out what Bloomex must demonstrate in order to succeed in its claim for defamation: A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.

If these elements are established on a balance of probabilities, falsity and damage are presumed. If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability. [ 50 ] Bloomex submits that the evidence allows it to satisfy this test. It says that the effect of the arrows pointing at the vases of discoloured water under the heading “What we got”, Ms. Agro gesturing to the vase in the video, and the words she said to Mr. Waltho (“we got this”) is to portray the bouquet as having been delivered in green and murky water.

It submits in its brief that, “there can be no

doubt that CBC explicitly or implicitly stated it received the ‘Sweet Blossoms Collection I’ bouquet from Bloomex in green and murkywater”. Yet, Bloomex says, it is undisputed that the bouquet was not delivered in water at all, let alone green and murky water. Thesefalse statements, Bloomex says, create the defamatory effect that Bloomex engages in false advertising and sells products of markedlylower quality than as advertised. They were clearly about Bloomex, and they were clearly published.

As a result, Bloomex says, it hasdischarged its onus, and falsity and damage can be presumed. [51] Despite these submissions, I am not satisfied that Bloomex has provided sufficient evidence to establish its claim on thebalance of probabilities. Having reviewed the

article and video, I do not accept that they depict, either explicitly or implicitly, that theflowers were delivered in green and murky water. CBC showed a clip of a bouquet being delivered, and it is clear that the bouquet is notin a vase. This communicates to the viewer how the flowers were delivered. Mr. Waltho’s statement was, “I know that they’re not freshbecause we can see how the chrysanthemums are wilted in bloom. And, again, if we’re looking at the greenery as it comes into yourhome, so again it discolours the water” [emphasis added].

This statement plainly says that the greenery discolours the water as it comesinto your home; it does not say or imply that the greenery is delivered to your home in the discoloured water. When asked if the SweetBlossoms Collection 1 bouquet was a pass or fail, Mr. Waltho referenced the quality and condition of the flowers, not the water. Thearrows pointing at the water, and the reporter gesturing towards the water, highlight the issue with the water, but the arrows and gestureneither state nor obviously imply that the flowers were delivered in the water. [52] In my view what the

article and video depict is what Mr. Waltho explicitly said: if the greenery is “not fresh” and is “wilted inbloom”, then it will discolour the water, making it slimy and a mess. [53] I note that a Court is not required to interpret a publication to identify the “meaning that is the harshest and most extreme”:Leenen v Canadian Broadcasting Corp, (ON SCJ) at para 44 and 49 (aff’d, (ON CA)). Themeaning identified should be that which would be derived by the reasonable and ordinary person reading the

article or watching thevideo; the Court does not need to “consider what persons setting themselves to deduce some unusual meaning might succeed inextracting”: Hodgson v Canadian Newspapers Co, at para 39 (ON SC); aff’d, (ON CA)). [54] In my view the natural and ordinary meaning of the words and images used in the

article and video is that the flowers were notfresh, were wilted and, as a result, discoloured the water. The Applicant’s claim that the video and

article implicitly or explicitly statedthat they were delivered in green and murky water can be articulated, as it was by counsel for Bloomex, but it is unusual, and iscontradicted by the actual language used by Mr. Waltho, and by the clip showing a bouquet being delivered wrapped in plastic, not avase. [55] The meaning of the

article and video, that the flowers were delivered in a poor condition and discoloured the water, is not aseasily contradicted by Bloomex as would be the meaning that the bouquet was delivered in discoloured water. CBC has providedevidence to establish the accuracy of its portrayal of the bouquet – that is, that it accurately portrayed what Bloomex delivered, a bouquetthat was in poor condition such that it discoloured the water in which it was placed. [56] CBC filed an affidavit sworn by Heather Evans, a senior producer at Marketplace. Ms.

Evans attests that an investigativereporter, Jenny Cowley, received the bouquets one day prior to them being displayed, photographed, and shown to Mr. Waltho. She saysthat Mr. Waltho gave Ms. Cowley advice as to how to care for the flowers, and provides a copy of the text exchange between Mr.Waltho and Ms. Cowley. Ms. Evans says she was advised by another producer, Nelisha Vellani, that they followed Mr. Waltho’s advice,keeping each bouquet in water and at a cool temperature. Ms.

Vellani also advised that they took steps to carefully deliver the bouquetsto the Pickering Market, rewrapping them in the paper and plastic in which they were delivered, and laying them flat on the floor of thevehicle with no surrounding objects. Ms. Vellani advised Ms. Evans that at the market they put the bouquets in vases, with water fromthe taps of the Pickering Market. Ms.

Evans swears that “at no time did any member of CBC take any actions to make the flowers appearin a negative light”. [57] Bloomex has provided no evidence to contradict CBC’s, or to show that CBC could not successfully establish at trial itsdefence that the bouquets were accurately and fairly depicted. [58] Bloomex submitted in oral argument that CBC had not provided sufficient evidence of the truth and accuracy of its claim.Counsel noted the possibility that in being rewrapped in the original plastic, or in being transported in the vehicle, the bouquets mayhave been damaged.

He noted that no photograph was taken of the Sweet Blossoms Collection I bouquet at the time it was received. Heobserved that the one photograph of a bouquet that was taken at the time the bouquet was delivered seems to show a bouquet in goodcondition, inviting the inference that a photograph taken of the Sweet Blossoms Collection I bouquet at the time of delivery would alsohave revealed that the bouquet looked good at that point. He observed that Mr. Waltho was asked how to look after the bouquets, so theystayed the same, but did not improve.

In general, counsel noted that CBC had full control of the bouquets for hours but did not documentthe state of the bouquets throughout that time period. [59] CBC responds that its uncontradicted evidence is that it took care of the bouquets based on advice, did nothing to make themlook bad and, given the care taken and the less than 24 hour period between delivery and display, showed the bouquets in the conditionin which they were received.

This evidence, CBC submits, shows the substantial truth of its reporting about Bloomex’s businesspractices in general, and about the discolouration of the water in particular. [60] Without making a determination on the factual issue of the truth of CBC’s reporting about Bloomex, I accept that CBC hasprovided sufficient evidence of the truth of its publication to raise a genuine issue for trial. Bloomex challenged that evidence by notingother evidence that could have been advanced but wasn’t, but it did not contradict or disprove the contents of Ms.

Evans’ affidavit.Indeed, on this limited and untested evidence, on the balance of probabilities, I would find that CBC’s

article and video weresubstantially true. Whether those factual conclusions would be sustained at trial, following the viva voce testimony of witnesses andvigorous cross-examination, is a genuine issue that can only be properly determined through the litigation process. [61] I also have some reservations with respect to whether, even if I accepted that the

article and video reported that the flowerswere delivered in murky, green and slimy water, that that would be sufficient to create the defamatory effect claimed by Bloomex. To

assess defamatory effect, it is necessary to consider whether the depiction would lower Bloomex’s reputation in the eyes of an ordinary person, “For a statement to be defamatory, it must be a statement that would lower the reputation of a person in the community. Reputation refers to how other right-minded persons would see that person in the community, and whether the words published would lower that opinion”: Luan v ADP Canada Co , 2020 ABQB 387 at para 225 ; DeKoter v McLeod , 2018 ABQB 217 at 34-41 (aff’d, 2019 ABCA 163 ).

As the Court of Appeal noted in DeKoter at para 29, the reader of the publication is a “an ordinary, right-thinking member of society”, not “someone with an overly fragile sensibility”. [ 62 ] As such, the question is, would a reasonable person who was told that Bloomex delivered a bouquet in green and slimy water, and was shown that water in comparison to a vase with clean water on Bloomex’s website, infer that Bloomex engages in false advertising and sells products of markedly lower quality than as advertised. [ 63 ] While in the context of the

article and video as a whole this reputational impact may arise, Bloomex, by seeking partial

summary judgment, has asked this Court not to consider that broader context. It has asked this Court to conclude that the

interpretation it posits – that Bloomex delivered flowers in murky, green and slimy water – would, in and of itself, lead the reasonable viewer to the conclusion that it engages in false advertising and sells products of markedly lower quality than as advertised. I am not satisfied on the balance of probabilities that the reasonable viewer would reach that conclusion, even if they interpreted the

article and video in the way Bloomex has argued for in this Application. They could see the delivery of a single bouquet in green and murky water as an exception, as having been caused by an error of the driver, as resulting from something falling into the water, or because one bad stem ruined the water. Even if they thought that Bloomex has delivered this particular bouquet in a condition contrary to what it advertises on its website, they would not have a reasonable basis for concluding that, in general, Bloomex, engages in false advertising and sells products of markedly lower quality.

A reasonable viewer could not, from one problem with one bouquet, justifiably conclude that Bloomex in general was engaging in improper business practices. [ 64 ] Bloomex may suggest that, despite it seeking

summary judgment only with respect to one aspect of the video and article, that I should nonetheless consider the defamatory effect of the depiction of the discoloured water in the context of the video and

article as a whole. Doing so would certainly support Bloomex’s claim that the publication had a defamatory effect. As I earlier explained, however, doing so would also be unfair. Bloomex cannot preclude consideration of the context of the statements and images about the discoloured water in relation to CBC’s defences of substantial truth and responsible communication but ask for it to be considered in relation to the defamatory effect. Either the whole

article and video are before the Court, or they are not; Bloomex can’t have it both ways. [ 65 ] As such, I find that Bloomex has not met its burden to show that CBC has no defence to its claim. It has not shown that CBC would not be able to establish the substantial truth of its publication about Bloomex, and it has not shown that the limited aspects of the publication at issue in this partial

summary judgment application are sufficient to give rise to a defamatory effect on its reputation. There is a genuine issue for trial with respect to the substantial truth of the publication, and its defamatory effect ought to be considered in a trial where the totality of the publication is properly before the Court. Has CBC demonstrated that there is a genuine issue requiring trial? [ 66 ] As discussed in the prior section, CBC has provided sufficient evidence to demonstrate that there is a genuine issue for trial with respect to the substantial truth of its publication about Bloomex.

It has also, however, demonstrated a genuine issue requiring a trial with respect to the justification of responsible communication. [ 67 ] In Grant v Torstar , the Supreme Court held that the defence of responsible communication will apply where: A. The publication is on a matter of public interest, and B. the publisher was diligent in trying to verify the allegation, having regard to: (

a) the seriousness of the allegation; (

b) the public importance of the matter; (

c) the urgency of the matter; (

d) the status and reliability of the source; (

e) whether the plaintiff’s side of the story was sought and accurately reported; (

f) whether the inclusion of the defamatory statement was justifiable; (

g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and (

h) any other relevant circumstances: Grant v Torstar at para 126 . [ 68 ] The affidavit sworn by Ms. Evans in support of CBC’s defence of responsible communication described its investigation and reporting on Bloomex as follows: (

a) The television program Marketplace , as a part of which the

article and video were published, focuses on consumer interests, and the propriety of business practices engaged in by Canadian companies. (

b) In May 2018 Marketplace began investigating the practices of online retailers, to consider whether the products advertised online were accurately portrayed and described in relation to what consumers received. Bloomex was one of those businesses. It had previously reported on Bloomex in 2010.

(

c) Following its 2010 report on Bloomex, CBC had received numerous emails and messages raising concerns about Bloomex and, in particular, claiming that consumers had not received the flowers advertised, that they had received low quality flowers, that the flowers were received late, and that Bloomex had refused to issue refunds in response to complaints. CBC provided examples of these complaints in Ms. Evans’ affidavit. (

d) It began its current investigation of Bloomex in August 2018. CBC contacted viewers to obtain more information about their experiences with Bloomex. They spent particular time on the complaints of Ms. Hodnett, who was ultimately featured in the video. They sought corroboration from viewers including copies of orders and photographs of the bouquets received, along with e-mails exchanged between consumers and Bloomex. CBC also contacted former employees of Bloomex. They sought documentation to prove that the employees had worked at Bloomex, and to corroborate specific details provided, and also sought information about other potential contacts. (

e) CBC believed that this information was sufficient to justify its concerns with the quality of the products provided by Bloomex in relation to what Bloomex was advertising, with the timing of Bloomex’s delivery, and its customer service. (

f) It then planned the video and

article to be published. It planned to order several bouquets from Bloomex, and to have a floral expert review the bouquets to compare what it received to what Bloomex advertised. It asked Mr. Waltho to be the expert because he was not currently operating as a florist, but rather ran a floral design school and worked internationally as a design consultant. As such, he was not a direct competitor of Bloomex. (

g) CBC placed four orders for six bouquets, to be delivered to four separate delivery addresses. One bouquet ordered, which was the same as that ordered by Ms. Hodnett and featured in the story, was not included in the story. (

h) The orders arrived between 1 and 4 p.m. on October 19, 2018 and were cared for as directed by Mr. Waltho. They were delivered to the Pickering Market in the morning of October 20, 2018, photographed between 9 a.m. and noon, with filming beginning at or around 10:00 a.m. The videos with Mr. Waltho were filmed between 9:58 a.m. and 11:45 a.m. (

i) Following the filming, CBC continued to contact individuals who wrote comments on Facebook about Bloomex. (

j) All of the sources included in the Bloomex story had their stories corroborated. (

k) CBC contacted Bloomex to provide it with information about the investigation and to request an on-air interview. (

l) Bloomex would not agree to an interview without receiving more information and, in particular, with respect to the particular orders placed by CBC and internal documentation and correspondence of CBC in relation to the investigation. CBC provided some additional information but did not provide all of the information requested by Bloomex, citing privacy concerns. (

m) After various correspondence between Bloomex and CBC, Bloomex declined to be interviewed. (

n) CBC included a comment from Bloomex in the

article and in the video, in the

article saying that “Bloomex stated that ‘flowers are perishable’ and the company ‘makes every effort to get flowers delivered in good condition.’ The company also stated it ‘endeavors to address all complaints quickly’”. In the video CBC said “they tell us flowers are perishable, they make every effort to deliver their products in good condition. If you’re not happy, send them a pic – they’ll either give you a credit, or a refund”. [ 69 ] This evidence has not been tested through cross-examination, and Bloomex has not had the opportunity to respond to it that it would have at a trial.

For the purposes of this Application, however, it is sufficient to show that there is a genuine issue for trial with respect to responsible communication. [ 70 ] The business practices of online retailers seem likely to be accepted at trial as being of interest and importance to Canadian consumers, and also as relating to an important issue of public policy in a capitalist economy. CBC’s evidence suggests that it wrote its story in response to information brough to it by third-party sources – members of the public – and took steps to verify and corroborate the information it received.

It sought out former employees of Bloomex. It took steps to present the bouquets in the form they were received and sought out independent and impartial experts to comment on them. It provided Bloomex with information, invited it to participate in an interview, and read a comment from Bloomex identifying salient points – the perishable nature of flowers, and Bloomex’s objectives as a retailer – in the

article and in the video. [ 71 ] While Bloomex did not provide any evidence to contradict CBC’s evidence on this point, it nonetheless submits that there is no genuine issue with respect to responsible communication because, it suggests, that defence is limited to matters where the report relies on a third-party source. Counsel emphasized the reference in Grant v Torstar to “the status and reliability of the source”, and to the need to “verify allegations”, both of which point to the use of third-party information and sources.

With respect to the discoloured water, Bloomex emphasizes there were no third-party sources or allegations, but only the actions of CBC itself. This should preclude reliance on the defence of responsible communication. Bloomex also suggests that CBC could not rely on the defence because of its failure to take sufficient steps to document the state of the bouquets from the time of receipt to the time when they were displayed at the Pickering Market, photographed and shown to Mr.

Waltho and passersby. [ 72 ] I do not accept that CBC’s evidence on its care and portrayal of the flowers is so deficient as to preclude its reliance on the responsible communication defence; as earlier explained, CBC has provided evidence sufficient to show that it has a reasonable likelihood of showing that it took care of the flowers and portrayed them as they were received. It has, as well, provided enough evidence to show that it has a reasonable likelihood of demonstrating that its care and portrayal of the flowers was consistent with a defence of responsible communication.

Whether or not CBC will ultimately prevail on these points is a genuine issue for trial. [ 73 ] Further, I am not persuaded by Bloomex’s argument that the defence of responsible communication is only available where a reporter relies on third-party sources for a specific allegation. The focus of Grant v Torstar is on the public interest, the importance of journalistic inquiry into matters in the public interest and freedom of expression, not on giving a journalist leeway where they rely on

third-party sources. The decision refers, for example, to verifying “information on a matter of public interest”, not to verifying third- party sources: Grant v Torstar at para 85. [ 74 ] Bloomex’s argument in this respect shows the problem that arises from trying to parse out a single aspect of the

article and video for assessment. While it is true that the depiction of the water did not depend on third-party sources, the report as a whole did. As described above, CBC’s decision to report on Bloomex arose largely from the numerous emails and messages it received from viewers raising concerns about Bloomex. That is, the story about Bloomex, the

article and video, did involve third-party sources and investigation. That the specific aspect complained about Bloomex here did not, does not change that fact. Rather, focusing on that specific aspect risks distorting the analysis by distracting attention from that central point, that the depiction of the water was one part of a larger investigation into a matter of public interest, namely the business practices of an internet florist selling flowers to Canadians. [ 75 ] As summarized earlier, in assessing the responsible communication defence a publication must be considered “as a whole, not only in determining whether the

article was in the public interest, but also in considering the standard of responsibility exhibited by the author”: Wilson at para 23 ; Cusson v Quon at para 30 . This is particularly so where, as here, the publication has a single “thrust” or focus: Wilson at para 29 . [ 76 ] As such, I am satisfied that CBC has shown that it has a reasonable likelihood of succeeding in a defence of responsible communication at trial and that Bloomex has not shown that such a defence is not available such that

summary judgment is appropriate. Do I have sufficient confidence in the state of the record to exercise my discretion to resolve the issue summarily? [ 77 ] For the reasons set out above, I am not prepared to exercise my discretion to resolve the issue summarily; doing so would be neither just nor fair. Conclusion [ 78 ]

Summary judgment serves an important function in the administration of justice. Where a party can prove its case, and a

summary procedure permits fair adjudication of the facts and law, judges should not be hesitant to grant it. A party who can prove its case summarily ought not to be forced to the expense and delay of a trial. At the same time, however, judges must not permit parties to use

summary judgment as a low-cost tactical manoeuvre, where the only price of defeat is the benefit of a trial. [ 79 ] Counsel for Bloomex made the best of his client’s position, and his presentation to the Court was well prepared and well argued. In my view, however, this application had no reasonable likelihood of success and ought not to have been advanced.

Trying to obtain a remedy based on one small part of the publication Bloomex claimed to be defamatory, advancing a strained meaning to that part, and asking this Court to deprive CBC of the opportunity to defend the substantial truth of its claim about Bloomex’s business practices, and to demonstrate its efforts to responsibly investigate those practices, was not an appropriate use of the

summary judgment procedure. That the courts have sought to make

summary judgment more available ought not be used as a pretext to abuse it. [ 80 ] If they cannot agree as to costs, the parties may provide submissions with respect to the costs of this Application in writing within 30 days of receiving this decision. The submissions may not exceed 10 pages double spaced, not including supporting documentation such as a bill of costs. Heard on the 24 th day of February, 2021. Dated at the City of Calgary, Alberta this 22 nd day of March, 2021. A. Woolley J.C.Q.B.A. Appearances: Christian J. Popowich Dextin Zucchi Code Hunter LLP

for the Plaintiff/Applicant Kenneth J. Warren, QC Erin J. Runnalls Kevin Pedersen Gowling WLG (Canada) LLP for the Defendant/Respondent