Executive Summary: Key Legal and Evidentiary Issues

• The plaintiff sought disclosure of the identities of confidential journalistic sources to challenge the defence of responsible communication in a defamation action.

• The court considered whether to set aside journalistic privilege at the anti-SLAPP application stage under the Protection of Public Participation Act (PPPA).

• The defendants had already disclosed the contents of the communications from the confidential sources, so the only issue was whether their identities should also be disclosed.

• The court weighed the relevance of source identities against the prejudice to journalistic privilege and the public interest in protecting confidential sources.

• The court found that precedent and the legislative intent of the PPPA supported maintaining confidentiality of sources at this stage.

• The application for disclosure of source identities was dismissed, with costs to the defendants in the cause.

Facts of the case

Rongxiang Yuan, also known as “Tiger” Yuan, is the plaintiff in a defamation case against Corus Entertainment Inc., a media and broadcasting company that owns and operates Global News, and four individual defendants: Sam Cooper, Stewart Bell, Andrew Russell, and James Armstrong, all national online investigative journalists at Global News. Sam Cooper’s reporting, which is central to the case, covers matters of Chinese government influence in Canada, money laundering, gaming, and trans-national crime, and relies in part on confidential sources, including those in law enforcement.

Yuan claims that the defendants defamed him by publishing news reports that imply he is involved with criminal activity, including drug trafficking, the production of Fentanyl, and money laundering. The defendants deny the statements are defamatory and plead a range of defences, including truth, substantial truth, and responsible communications.

The defendants brought an application under the Protection of Public Participation Act, S.B.C. 2019, c. 3 (PPPA), commonly known as an anti-SLAPP application, seeking an order dismissing the action on the basis that the proceeding arises from expression on a matter of public interest. Yuan conceded that the expressions relate to a matter of public interest.

Within the context of the anti-SLAPP application, Yuan brought an application seeking disclosure of the contents of the communications from the confidential sources, as well as their identities. The defendants disclosed the contents of the communications, so the only issue for determination was whether the defendants should be compelled to reveal the identities of the confidential sources. The basis for protecting the identities of two of the confidential sources had ended, one by waiver by the source himself, and one by the death of the source.

The application for disclosure of sources’ identities

The court considered whether, on a weighing of relevance versus prejudice, the identities of the confidential sources were sufficiently relevant on the anti-SLAPP application to justify setting aside journalistic privilege at this stage of the litigation. The primary rationale for seeking disclosure of the sources’ identities was Yuan’s allegation that the documents contained errors and his desire to argue that the sources are “fabulists.”

The court noted that the PPPA is relatively new legislation in British Columbia and that there are few decided cases on interlocutory applications for disclosure of documents in the context of an anti-SLAPP application in a defamation case. The court cited Galloway v. A.B., 2020 BCCA 106, which held that discretion to order production of documents in a dismissal application should be exercised by weighing the degree of relevance to the issues arising on the application and factors of comparative prejudice. However, unlike the present case, Galloway did not involve the protection of confidential sources.

The court found that Mr. Cooper promised to keep the identities of his sources confidential, and that the authorities considering the “newspaper rule” are uniformly against requiring a defendant to disclose the identity of a confidential source during an anti-SLAPP process. The court cited Canwest Publishing Inc. v. Wilson, 2012 BCCA 181, which supports keeping the identities of sources confidential at this stage. The court also noted that the sources are legitimately concerned about their safety should their identities be disclosed.

Yuan relied on two Ontario decisions, Dong v. Global News, 2024 ONSC 3532 and Ke v. Cooper, et. al., 2024 ONSC 5532, but the court found that neither decision assisted Yuan, as both preserved confidentiality of sources at the anti-SLAPP stage.

The Supreme Court of Canada in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, emphasized that anti-SLAPP applications are intended as a filtering process and that courts should only engage in a limited weighing of evidence, including credibility, at this stage. The court found that requiring disclosure of the sources’ identities would lead to an impermissible “deep dive” into the evidence.

The court concluded that disclosure of the sources’ identities was not necessary for Yuan to address the validity of the defendants’ defences. Yuan could maintain his position that there are factual errors that undermine the defence of responsible communications without knowing the identities of the sources. The court also found it highly unlikely that the sources would agree to be interviewed or provide an affidavit if their identities were disclosed, and noted that discovery is suspended pending the outcome of the application.

The court cited concerns from Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, and Rooney v. Galloway, 2024 BCCA 8, about anti-SLAPP motions becoming expensive and protracted, contrary to the intent of the legislation.

Outcome and ruling

The application for disclosure of the confidential sources’ identities was dismissed. Costs were awarded to the defendants in the cause. The exact amount of costs was not specified in the decision.