Subway's '50% Chicken' Lawsuit Against CBC Dismissed

"Subway's strips and oven roasted chicken could be only about 50% chicken. And guess what? The rest - mostly soy".

These words sparked a $210 million defamation lawsuit by Subway against the Canadian Broadcast Corporation ("CBC") and Trent University.

CBC argued that the lawsuit amounted to a Strategic Litigation Against Public Participation ("SLAPP") suit.

Justice Morgan of the Ontario Superior Court of Justice agreed with CBC in Subway v. CBC, 2019 ONSC 6758, and dismissed the claim against CBC.

Two-Part Test

Section 137.1 of the Ontario Courts of Justice Act is an anti-SLAPP provision designed to protect free expression in the face of a libel or similar action aimed at matters of public interest.

There is a two-part test to determine whether an action should be dismissed under section 137.1 of the Courts of Justice Act. There is a "public interest" hurdle and a "merits" hurdle.

The defendant must first prove that the expression made relates to a matter of public interest.

If this threshold is crossed, then the onus shifts to the plaintiff to establish that the claim has substantial merit and that the defendant has no valid defence.

Further, the plaintiff must show that the harm suffered or likely to be suffered as a result of the defendant's expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

Public Interest

Justice Morgan held that the comments made by CBC passed the public interest test. He noted that there is a public interest in keeping investigative journalism viable and free from undue litigation burdens.

Moreover, the public has an interest in knowing the ingredients, and percentage quantities thereof, of the foods they commonly ingest.

Substantial Merit

Turning to the second part of the test, the "merits" stage does not involve a full adjudication of the claim on its merits. A claim has "substantial merit" if, upon examination, it shows to be legally tenable and supported by evidence, which could lead a reasonable trier to conclude that the claim has a real chance of success.

Justice Morgan determined that Subway's claim against CBC had substantial merit. Subway submitted evidence showing that its chicken products contain no more than 1% soy filler. There was also evidence that the tests relied on by CBC were flawed.

Valid Defence

Justice Morgan was satisfied that CBC had a valid defence. CBC relied on the defence of...

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