CBC asks Ontario court to throw out $210M Subway lawsuit

The CBC has filed a motion asking an Ontario court to toss out a $210-million lawsuit launched by Subway against the news network, which reported that the sandwich chain may have been selling some chicken products that were only about 50 per cent chicken DNA.

The broadcaster is seeking to dismiss the case under Ontario's so-called anti-SLAPP (strategic lawsuits against public participation) law. The legislation 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 public interest in protecting the CBC defendants' freedom of expression far outweighs benefits of allowing Subway to proceed with this lawsuit," reads the notice of motion, filed May 31 in Ontario Superior Court.

The motion to dismiss is scheduled to be heard in court on Sept. 24.

Subway launched the defamation lawsuit in April 2017, claiming a story by CBC's Marketplace caused it to suffer significant sales losses.

As part of its investigation, Marketplace had 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. 

Testing method 'lacked rigour': Subway

Subway disputed Marketplace's findings publicly after the story aired on television and radio 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 Marketplace report and that the tests conducted on the chicken "lacked scientific rigour."

None of the allegations made by Subway has been proven in court.

The next month, CBC filed a statement of defence, standing by its story and saying Marketplace gave Subway plenty of opportunity to refute the findings of its investigation before it aired.

Subway also "provided no independent scientific evidence that would undermine or refute the results of the tests," the CBC claimed in court documents.

The CBC is now trying to have the lawsuit dismissed under Section 137.1 of the Court Justice Act, the purpose of which, in part, is to  "discourage the use of litigation as a means of unduly limiting expression on matters of public interest."

In the motion to dismiss documents, the CBC claims the Marketplace investigation took eight months to conduct and that this type of investigative journalism "should be promoted and protected."

The documents also say Subway has used legal action to "attack the credibility of CBC.

"Despite being more than two years into the litigation, Subway "still has no means to dispute the test results," the CBC's court documents state.

Subway said it does not comment on ongoing litigation.