Carter v. B.C. Federation of Foster Parents Assn.
[21]
Page 16
Taylor J. went on to find that in any event the activity of the defendant
respondent amounted to innocent dissemination, but this is a difficult defence to
Limited, [1900] 2 Q.B. 170 (C.A.). Romer L.J. pointed out in that case at 180 the
heavy burden lying upon a defendant to demonstrate that the publication occurred
without negligence on his part. On the evidence in this case, it is difficult to see how
it can be successfully argued by the defendant Federation that the continuing
publication occurred without negligence on its part. Here the Federation did not take
effective steps to remove the offending comment and there seems to have been no
proper follow up to see that necessary action had been taken. I do not therefore
consider it was open on the evidence for the trial judge to conclude that a defence of
innocent dissemination could be successfully made out on the state of facts here.
[22]
In the result, I would allow the appeal concerning the Dberlane comment and
remit that matter for decision to the trial court. As I observed, it may be that the
plaintiff will have difficulty in establishing the fact of publication to a third party
subsequent to her originally learning about the existence of the comment in the year
2000, but I do not consider that she should be prevented from tendering evidence
that there was such publication. I would allow the appeal to that extent.
[23]
Concerning the question of costs, it seems to me that in view of the
circumstance that there were originally cross applications before the trial judge, and
that ultimate success here has been mixed, an appropriate order for costs would be
2005 BCCA 398 (CanLII)
maintain as illustrated by the judgment in Vizetelly v. Mudie's Select Library,
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