The Lawyer's Daily is now Law360 Canada. Click here to learn more.

CBC says SLAPP; Subway cries foul | Marcel Strigberger

Friday, July 23, 2021 @ 2:36 PM | By Marcel Strigberger

LexisNexis® Research Solutions
Marcel Strigberger %>
Marcel Strigberger
 What came first, the chicken or the soya?

The chicken defamation case of Subway v. CBC is in the news again. Subway launched the action against the CBC after the broadcaster aired a program claiming that Subway chicken is only about 50 per cent chicken, and the rest is soya (Subway Franchise Systems of Canada Inc. v. Canadian Broadcasting Corp. [2019] O.J. No. 5957). Subway claims the report was a cock and bull story. 

The CBC had a different view, reminiscent of the remarks of Sir Winston Churchill, who in addressing our Parliament in 1941 and referring to the French officials who suggested in three weeks’ time England would have its neck wrung like a chicken, said, “Some chicken, some neck.”

What the CBC said in effect was, “Some Subway. Some chicken!”

CBC succeeded on a summary judgment motion to get the action dismissed. The motions judge found the case without merit. The CBC relied on anti-SLAPP legislation which aims to protect free speech on matters of public interest. Thinking about it, I suppose the percentage of chicken in a chicken sub is indeed a matter of public interest. We all have a right to be informed. After I get up in the morning, I grab my iPhone and the first news I look for is what is the latest soya count in those chicken subs. I also then check for provincial breakdowns, region by region, to see whether the content is uniform or different. And is it regular soya, or some variant? After satisfying my curiosity, I go on to look for the latest COVID-19 stats.

The motions judge noted the motion required a “Herculean lawyer effort … resulting in a monument of high-end legal work,” and he awarded the CBC $500,000 in costs. The lawyers on both sides prepared to the teeth and definitely did not just wing it. With the stake so high, none of them wanted to lay an egg.

These partial indemnity costs of $500k is way more than I ever billed in a whole year in over 40 plus years of practice. It’s certainly not chicken feed.

I wonder whether the motions judge ever ate one of those subs and thought to himself, “What did I eat? The chicken content here is scarcer than hen’s teeth.”

However, Subway appealed successfully, and the CBC never got the huge $500k award. I trust the CBC did not count its chickens before they hatched.

The Court of Appeal found the action was not frivolous or without merit and should be aired at trial. Maybe some of the judges’ thoughts were, “I’ve been eating these subs and enjoying them. Along comes the CBC to mar the situation, like a fox in the henhouse. What gives?” I note that none of the judges commented on whether or not the product tasted like chicken.

CBC then sought leave to appeal further to the Supreme Court of Canada. The top court, in a monumental decision, declined to hear the matter. I don’t know why. Maybe some of the justices said, “We don’t care. We’re vegetarian. Let them duke it out, though there’s nothing wrong with a good soya sandwich.” I’m sure they had a good reason for tossing the application for leave. I doubt they just chickened out.

Now the action is back on the rails. Who knows the final outcome? Either way, given that the case is virtually back still at square one, I suggest it could be a while till the chickens come home to roost.
Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. Visit Follow him @MarcelsHumour.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at or call 647-776-6740.