Judge dismisses Subway’s $210M lawsuit against CBC over chicken sandwich exposé

An Ontario court has thrown out a $210-million defamation lawsuit launched by Subway against CBC, which had reported the sandwich chain may have been selling some poultry products that were only 50 per cent chicken DNA.

In his ruling, Judge E.M. Morgan of the Ontario Superior Court of Justice said the Marketplace investigation met the “‘public interest’ test,” was an example of investigative journalism, and therefore is protected under Section 137.1(3) of the Court Justice Act.

The so-called anti-SLAPP (for “strategic lawsuits against public participation”) section allows a defendant to ask the court to dismiss a lawsuit if they can show it was initiated to shield the plaintiff from criticism and stymie free speech on a matter of public interest.

“The Marketplace report raised a quintessential consumer protection issue. There are few things in society of more acute interest to the public than what they eat,” Morgan wrote.

“I consider that CBC has satisfied its burden.”

Subway launched the lawsuit in April 2017, claiming the Marketplace story caused significant sales losses.

As part of its investigation, Marketplace sent samples of chicken from five major fast-food restaurants to a lab for DNA analysis. The results suggested that some of Subway’s chicken products may have comprised slightly more or slightly less than half chicken DNA. 

Subway disputed Marketplace’s findings publicly after the story aired on Feb. 24, 2017, and was posted online. 

It later filed a defamation lawsuit — which also named as defendants the reporter and two producers who worked on the program — claiming that CBC acted “recklessly and maliciously” in airing the report and that the tests conducted on the chicken “lacked scientific rigour.”

In its statement of defence, CBC stood by the story, saying Marketplace gave Subway opportunity to refute the findings before the story aired.

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