Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Associate Editor ..........Tim Shufelt Staff Writer ............. Robert Todd Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2010 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Another challenging year ahead to be an important item on the agenda. Until now, the contracting out of A legal services to firms as far away as In- dia has remained in the early stages in Canada. But with companies such as the Royal Bank of Canada having start- ed farming out work to India last year, it's clear the movement to save money through alternative ways of delivering service will continue. Of course, with many law firms here having survived the recession relatively unscathed, the hope is for a better year as work in areas such as mergers and acquisitions ramps up. But despite that promise, clients are looking for value, which means lawyers will face added pressures to cut costs. The issue of outsourcing is on people's mong the many issues Ontario's legal community will face in 2010, legal outsourcing is likely minds. In February, for example, the Canadian Institute is hosting a confer- ence in Toronto on legal process out- sourcing. Recently, meanwhile, U.S.- based legal outsourcing consultancy firm Fronterion LLC released its top 10 trends in the area for 2010. They include a shift in source countries as competition heats up from places such as South Africa and the Philippines. But the firm, which of course has a vested interest in the subject, also says 2010 will be the year the outsourcing in- dustry must prove its value to its custom- ers. How much money does it really save? In the case of the Royal Bank, executive vice president and general counsel Da- vid Allgood said the savings aren't huge. Nevertheless, he called the move "a toe in the water around what can be done out there" during a discussion with Canadian Lawyer InHouse magazine last summer. The issue of outsourcing raises many other questions. When does it make sense to do it? How do lawyers manage the ethical dilemmas involved, such as proper supervision of the work taking place overseas, maintaining solicitor- client privilege, and handling the in- evitable privacy concerns? At the same time, how should the legal profession respond to the challenges outsourcing poses, particularly when it represents a threat to the amount of business law- yers here will be able to pick up? And with India effectively shutting out for- eign law firms from operating there, what types of reciprocity issues does outsourcing entail? But beyond the practical matters is the question of whether the migration of le- gal work overseas is a good thing. From a strict economics standpoint, the shift of routine tasks to places where professionals can do them more cheaply makes sense. But after years of watching our manufac- turing and, to some degree, parts of our service sectors move offshore, such devel- opments in the legal field are somewhat troubling. What higher-value work will be left for Canadians to do? While concerning, some of the changes are inevitable responses to mar- ket forces. The challenge for the legal profession, then, is to develop those ar- eas of business that don't make sense to outsource while continuing to invest in new ways of operating, often through technology, that make retaining Ca- nadian lawyers the more cost-effective option. Many practitioners are already going through that process, so we can look forward to seeing what happens in 2010. Already, it looks like it will be another challenging year. — Glenn Kauth Responsible communication: what is the public interest? C ourtesy of the late De- cember Supreme Court of Canada decisions in the Grant v. Torstar Corp. and Quan v. Cusson defamation ac- tions, we now have a new libel defence known as responsible communication on matters of public interest. These clearly written decisions are groundbreaking and must be considered as huge victories for the media, allowing journalists to get facts wrong but still success- fully defend a defamation action. Still, nothing in life is truly free, and there is a price to pay for the right to be wrong. While editors like to think they know what stories are "on a matter of public interest," the top court has made it clear this is a job for the judiciary. "The judge decides whether the publication was on a matter of public inter- est." Also, I'm just a bit concerned with the statement that a "seg- ment of the public must have a genuine stake in knowing about the matter published." That word "genuine" seems open to misinterpretation. I hope courts will determine the public interest issue in a broad manner consistent with the ra- tionale behind the need for this new responsible communica- tion defence. The price to be paid by the media arises when the trier of fact determines whether "the stan- dard of responsibility has been met." The high court has thereby invited the jury into the news- rooms of the nation. Juries must examine factors such as the pub- lic importance of the matter, the urgency of the matter, whether inclusion of a defamatory state- ment was "justifiable," and "any other relevant circumstances." It's awfully open-ended, I'd say. So it would be open for a jury to deny the responsible communication defence if it felt the story just wasn't quite important enough to merit the coverage. Perhaps the reporter should have used differ- ent language, spoken to different sources, asked different questions, Social Justice By Alan Shanoff or taken different steps to verify the allegations. Application of the defence will be rather uncertain. How will jurors determine these issues? In part, lawyers' argu- ments will factor in, but it's likely we're going to be seeing a great deal of expert testimony from se- nior journalists on the standards of responsible journalism. Let's hope we have some defamation actions decided by judge alone so we can obtain detailed reasons on what constitutes responsible journalism. In time, we'll have a body of principles that can guide journalists and future juries. Un- til then, this new defence must be considered to be entirely unpre- dictable in its application. I don't know how counsel will be able to render meaningful opinions on www.lawtimesnews.com the application of the defence. What, then, is to be done if a publication contains a mistake? Suppose the error is pointed out to the publisher. Does responsible journalism end with the publication of the article or is it a process that continues to the end of the trial? Wouldn't "relevant circum- stances" include the publisher's actions after learning of an error? Wouldn't it be irresponsible for a publisher to refrain from under- taking a proper investigation or neglecting to publish a correction when warranted? This exercise becomes more complex when we consider issues of the Internet. How does a pub- lisher bring a correction to the attention of all those who have read the article on the myriad of sites on which it has appeared? What about the ubiquitous read- ers' comments we see below elec- tronic versions of an article? Finally, I'm troubled by the statement that malice defeats the responsible communication communication January 11, 2010 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia. ca, or Kathy Liotta at 905-713-4340 kliotta@ clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. defence. "A defendant who has acted with malice in publishing defamatory allegations has by definition not acted responsibly." Malice also defeats the fair com- ment and qualified privilege de- fence and is one of those concepts the court must reconsider. Based on previous decisions, malice is an incredibly broad term. Findings of malice are fre- quently made based on errors in judgment or such vague concepts as having an improper motive. Surely, the justification for a re- sponsible de- fence also serves as a rationale for precise limits being imposed on the definition of malice. Consti- tutional protection of free speech should not be lost based solely on findings of so-called improper motives or errors in judgment. Alan Shanoff was counsel to Sun Media Corp. for 16 years. He cur- rently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. LT

• Cover
• Crying Foul
• Media Responsibility
• Focus On Insurance Law