Executive Summary: Key Legal and Evidentiary Issues

• Defamation claims arose from an article linking CreateAbundance and its leaders to espionage, cult activity, and a homicide investigation in Canada.
• Application under s. 4 of the Protection of Public Participation Act (PPPA) sought dismissal of the action as a strategic lawsuit against public participation (SLAPP).
• The court found the Article's allegations were reasonably capable of bearing defamatory meanings, including that respondents were spies, suspects in a homicide, and leaders of an exploitative cult.
• Defences of responsible communication and fair comment were analyzed, with the court noting the journalist's failure to include the RCMP's statement that it was not linking CreateAbundance to the homicide, and her failure to provide respondents a meaningful opportunity to respond before publication.
• No real prospect of proving malice on the journalist's part was established, and the respondents' harm evidence was found to be insufficient to outweigh the public interest in protecting the expression.
• Full indemnity costs were awarded to the applicant for the s. 4 dismissal, while damages under s. 8 were denied and costs were apportioned differently across the remaining contested applications.

The homicide that sparked the investigation

On June 17, 2020, Bo Fan, a Chinese national living in Canada, was admitted to a Surrey hospital with life-threatening injuries and died later that day. The RCMP believed Ms. Fan was a victim of homicide. In a subsequent video press release, RCMP spokesperson Sgt. Frank Jang disclosed that Ms. Fan was associated with an organization called Golden Touch, also referred to as Create Abundance, described as a "self-improvement wellness organization" with local and international ties. Critically, Sgt. Jang stated the RCMP was "not making any links" between the organization and Ms. Fan's homicide, adding that "there is no information we have uncovered to make that kind of link." The RCMP appealed to the public, and specifically the Chinese community, for information about Ms. Fan.

The article and its authors

On March 13, 2021, The Sunday Guardian Live (TSG) published an article entitled "How a murder in Canada led to the unraveling of a CCP spy operation," co-authored by Ina Mitchell, an accredited independent journalist, former military and RCMP intelligence official Scott McGregor, and co-author Bob Mackin. The article named and included photographs of CreateAbundance International Institute Inc., its directors Zhong Guo and Dazhun Xinyue Zhang, and employee Dr. Gongbo Li. It described CreateAbundance as a cult with a militaristic bent, suggested connections between the organization and the Chinese Communist Party (CPP), referenced the organization being the focus of Canada's counterterrorism force, the Integrated National Security Enforcement Team, and implied that Ms. Fan's homicide may have been connected to her work at CreateAbundance.

The defamation lawsuit and PPPA application

CreateAbundance, along with Mr. Guo, Dr. Li, and Ms. Zhang, filed a notice of civil claim (NCC) on November 10, 2021, for defamation against nine defendants, including the three Canadian co-authors and six India-based defendants connected to TSG. The respondents served the NCC on Direct News Pvt Ltd. and MJP Media Pvt Ltd. in India, but neither company filed a response, and the respondents obtained default judgment against them on February 15, 2023. After being served with the NCC on August 29, 2023, Ms. Mitchell applied to dismiss the entire action, or alternatively the action against her, under s. 4 of British Columbia's Protection of Public Participation Act (PPPA), which provides a mechanism for the early screening and dismissal of strategic lawsuits against public participation (SLAPPs). The respondents consented to dismissal of the action against Ms. Mitchell but opposed dismissal against the other defendants, opposed full indemnity costs, and opposed her claim for damages under s. 8 of the PPPA.

The section 4 analysis

Justice Layton conducted a full s. 4 analysis despite the respondents' consent to dismissal, to assist in providing a foundation for determining costs and damages under ss. 7 and 8 of the PPPA. At the first step, both parties agreed the Article constituted expression relating to a matter of public interest, given that it described an unsolved homicide that was the subject of an RCMP news conference, explored possible links between CreateAbundance and the Chinese state or CPP, as well as between CreateAbundance and Canadian politicians, and stated that CreateAbundance was the focus of Canada's counterterrorism force. At the second step, the court found grounds to believe the defamation claim had substantial merit. The Article was reasonably capable of bearing the defamatory meaning that the respondents were involved in a CPP spy operation and an exploitative cult, and that CreateAbundance and the individual respondents "are or should be suspects in Ms. Fan's homicide, and may have been involved in carrying out that crime." While the court found that a reasonable person reading the entire Article would not take it to mean the respondents were murderers, the final question in the Article — "What did Bo Fan know about any of this and why was she murdered?" — was reasonably capable of being viewed as insinuating that people associated with CreateAbundance may have murdered Ms. Fan for reasons connected to its activities in Canada.

Defences and the weighing of public interest

On the defence analysis, the court found a real prospect that the defence of justification would not succeed, given the limited record where the only sworn evidence came from Dr. Li, who denied the allegations. Regarding responsible communication, the court identified two significant shortcomings: the Article failed to include Sgt. Jang's comment that the RCMP was not making any links between CreateAbundance and Ms. Fan's homicide, and Ms. Mitchell did not provide the respondents a meaningful opportunity to respond to the allegations before publication. While she made several attempts to contact representatives of CreateAbundance — including knocking on doors, sending emails, contacting social media accounts, and texting and emailing Dr. Li — her text and email to Dr. Li did not convey the gist of the most serious allegations, making no mention of CreateAbundance being a cult or spying for the Chinese state or CPP. On fair comment, the court found that key statements about CreateAbundance being a cult and a CPP spy operation were reasonably viewable by a reader as statements of fact, as opposed to comments. Importantly, the court found that the respondents had not established a real prospect of proving malice on Ms. Mitchell's part. At the weighing stage, Justice Layton concluded that the harm to the respondents, while present, was not sufficiently serious to outweigh the public interest in protecting the expression. Dr. Li's statements about losing the support of friends and colleagues lacked detail, CreateAbundance provided no evidence of substantial damage with supporting documentation, and numerous other articles published about Ms. Fan's homicide and CreateAbundance — none of which the respondents suggested were defamatory — had likely already blemished their reputations to at least some extent. The subject matter of the Article related to core values underlying s. 2(b) of the Charter, and the court expressed concern that allowing the lawsuit to proceed might have had a potential chilling effect on future expression by Ms. Mitchell or other journalists.

Damages, dismissal of action against other defendants, and notice of assessment

The court denied Ms. Mitchell's application for damages under s. 8 of the PPPA, finding it was not satisfied that the respondents brought the proceeding in bad faith or for an improper purpose. The respondents had consented to dismissal with little delay once Ms. Mitchell filed her s. 4 application, the impugned expression made serious allegations against them, and there was no evidence to indicate that any of the respondents had a history of using litigation or the threat of litigation to silence critics. Regarding dismissal of the action against non-defaulting defendants, the court adjourned the application generally, as the respondents conceded there was "no possibility" they could further renew the NCC to serve those defendants, rendering the issue moot. Protective measures were imposed: should the respondents apply to further renew the NCC, they must include a copy of these reasons for judgment, serve the application on Ms. Mitchell, and she would have leave to bring back her application to dismiss. The court also declined to declare that Ms. Mitchell was entitled to notice of any assessment of damages against the defaulting defendants, finding the risk of a future contribution or indemnity claim against her to be "extremely if not vanishingly low."

Costs and the overall outcome

On costs, the court awarded Ms. Mitchell full indemnity costs for her successful s. 4 application and the proceeding generally, finding the presumption under s. 7(1) of the PPPA was not rebutted despite the action not bearing the strong indicia of a true SLAPP. Full indemnity costs also extended to the unsuccessful s. 8 damages claim. However, costs for the application to dismiss the action against non-defaulting defendants were limited to Scale B, due to litigation inefficiencies attributable to the applicant's conduct in raising or substantially elaborating upon several contentious issues only after the respondents had filed their response consenting to dismissal. The respondents were awarded their Scale B costs for the applicant's unsuccessful application for notice of the assessment of damages against defaulting defendants. In sum, the action against Ms. Mitchell was dismissed under s. 4 of the PPPA, her damages claim was denied, and the court awarded her full indemnity costs for the core dismissal application while apportioning costs on the remaining contested matters to reflect mixed results. No specific monetary amount was determined for the full indemnity costs, as the exact quantum was not fixed in this judgment.