By Andrew D.R. Delmonico, Partner, and Ted R. Lewis, Kuhn LLC
Many contractors have been in the position where, for one reason or another, relations with an owner (or other contractor) deteriorate and a legal dispute arises. Occasionally, a contractor may have the unpleasant surprise of finding out that another party has posted reviews online or in the media that could damage its reputation.
In the recent case of Level One Construction Ltd. v Burnham, 2019 BCCA 407, the BC Court of Appeal considered a situation involving a contractor’s claim against a homeowner for defamation.
The Facts
In this case, the plaintiff was a contractor (the “Contractor”) and the defendant was an owner (the “Owner”) who had hired the Contractor to carry out renovations at her home. After a series of discussions about the scope of work for the renovation, the Contractor provided an estimate of $18,908.51 to the Owner, and both parties signed a contract based on that estimate. The Owner provided a $5,000 deposit per the contract.
A few weeks later, one of the Contractor’s employees provided a review of the work to the Owner. The employee’s review included a scope of work that had mistakenly been expanded from that of the original contract. As a result of this misunderstanding, the employee gave the Owner an updated price forecast that was almost $20,000 higher than the estimate. The Owner then demanded a full refund of her deposit, to which the Contractor agreed on the condition that the Owner would sign a non-disclosure agreement (“NDA”) and accept certain administrative and work-related deductions. The Owner demanded the full amount, and commenced a small claims action when the Contractor would not agree.
A couple months later, the Owner left a negative review of the Contractor on the website Yelp, and sent emails to various news outlets, including the Canadian Broadcasting Corporation (“CBC”). In these communications, the Contractor alleged the Owner’s comments suggested, among other things, that the Contractor “scammed” her by providing an artificially low estimate and then increasing the price. The CBC eventually sent a reporter to interview the Owner. During the interview, the Owner made numerous accusations against the Contractor, including that the Contractor’s estimate had doubled for the same amount of work. The CBC then ran several stories, including a TV news story and an online article, conveying the Owner’s position. The Contractor then commenced a defamation claim against the Owner.
The Decision
At trial, the BC Supreme Court held the Owner’s statements were not defamatory, if her words were given “the least harsh interpretation.” The trial judge also found that the Owner was entitled to rely on a defence of fair comment, which protects statements of opinion on matters considered to be in the public interest. This decision was overturned on appeal.
In its reasons, the Court of Appeal found the lower court was wrong in finding that the “least harsh interpretation” should be given to the Owner’s allegedly defamatory comments. In British Columbia, a statement is considered defamatory if it would tend to lower the reputation of the person to whom it refers in the eyes of a reasonable person. In considering this, the Court clarified that neither the worst possible meaning nor the least harsh interpretation should be given to the comments in question.
The Court of Appeal also found that the Owner should not be able to rely on a defence of fair comment with respect to her claim that the Contractor had quoted her twice the price for the same work. In order to be protected on the basis that a statement is fair comment, the facts upon which the comment is based must be correct. In this case, the Owner knew about the change in the scope of work that had resulted in the Contractor’s higher price, and left this important information out when giving her interview and review. Because her comments actually contradicted the facts, they were not protected as fair comment.
Lessons Learned
1. If an owner or other contracting party makes untrue statements that you think could damage your business or reputation, you may have recourse to claim against that person in defamation. Contractors should pay attention to the reviews they receive online to ensure customers are accurately representing their interactions with the contractor.
2. Similarly, contractors, subcontractors, and suppliers should think carefully before posting negative reviews themselves. Although it may be permissible to share your opinion of another business online, statements that distort or misrepresent the facts of your interaction with that business may result in liability for defamation. ■
This article was written by Andrew D.R. Delmonico, Partner, and Ted R. Lewis, articled student, who practise in construction law with the law firm of Kuhn LLP. This article is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have any questions or comments about this case or other construction law matters, please contact us at 604.864.8877 (Abbotsford) or 604.684.8668 (Vancouver).
