Law Times

www.lawtimesnews.com Law Times / February 4, 2008 Page 7 I n matters involving the protection of freedom of speech and the press under the common law of defama- tion, Canada is the backwater capital of the world. It was, therefore, with great ex- pectations that many of us awaited the decision by the Ontario Court of Appeal in Cusson v. Quan. It of- fered a perfect vehicle for addressing publications by the media on matters of public interest. The appeal was argued by distinguished counsel on be- half of the media defendants, and by equally distinguished counsel for the Canadian Newspaper Association and Ad IDEM/Canadian Media Lawyers Association who in- tervened in the appeal. When the decision was announced, media counsel and editors universally heralded it as a "landmark ruling." One of the counsel for the association announced that, in the future, editors will "be much more confident that, once they have jumped through all the hoops, they can publish." I would like to suggest that the newsrooms of the media will indeed experience many hoops and much jumping in an effort to satisfy the test ar- ticulated in Cusson, that the promise the association as- sures us was won by this deci- sion is far greater than what it can deliver, and that the asso- ciation chose to argue in sup- port of freedom of the press one of the worst possible op- tions that was available on the basis of decided law, not only in foreign jurisdictions but in Canada itself. There were two theories argued on appeal. One was by counsel for the party de- fendants who asserted a com- mon law defence of qualified privilege for the publication of matters of public interest. The other was by counsel for the intervener association who supported the importation of the defence of responsible journalism recognized by the House of Lords in Reynolds v. Times Newspapers Ltd. The Court of Appeal opted for the view supported by the inter- vener and ruled that the media defendants were to be held to the standard of responsible journalists in publishing mat- ters of public interest. Under the rule embraced by the court, the communications media may publish defama- tory information to the entire world on matters of public concern if they act responsibly in all the circumstances, tak- ing into consideration among other matters the seriousness of the allegation; the degree to which the information already commands respect; the tone of the article in which it appears; the timing and manner of the publication and its urgency; and the reliability of the source and steps taken to verify it, in- cluding consultation with the plaintiff and the presentation of his or her view. Reynolds was described by the appeal court "as a natural extension of the law . . . , an incremental change." This "in- cremental change" was, how- ever, anything but a "natural extension" or even an orthodox development of the law. Under the common law, once the de- fendant had established that the occasion was privileged, the burden was on the plain- tiff to show that the defendant acted maliciously or otherwise abused the privileged occasion. It was the occasion, however, that gave rise to the privilege, not the publication. The effect of the decision in Reynolds was to turn the law of privilege on its head. The privilege does not apply to the occasion but it belongs to each publication. The burden is no longer on the plaintiff to establish malice or exces- sive publication to defeat the defence; the burden is on the defendant to establish that the publication was responsible in the circumstances. The Court of Appeal would have us believe that the rule in Reynolds represents "a sensible halfway house between the two extremes of the traditional common law no-fault liabil- ity on the one hand, and the traditional qualified privilege requirement for proof of mal- ice on the other," and that it achieves the goal of providing "a more appropriate balance between the Charter values of protection of reputation and respect for freedom of expres- sion." The first observation is a false dichotomy in the law of defamation, and the second misrepresents at least one of the values the Charter should seek to protect. The extremes in liability for defamation are represented by strict liability and an absolute privilege such as judges them- selves enjoy in judicial pro- ceedings. There were, there- fore, more sensible options that could have been chosen as a halfway house. A qualified privilege was rejected largely because mal- ice was "notoriously difficult to prove and the adoption of a malice standard would, as a practical matter, make recov- ery for most plaintiffs a re- mote possibility." Not a single authority is cited for this re- markable proposition, perhaps because there are none. If the cases on malice had been re- viewed by the court, it would have found countless decisions where privileges had been lost by proof of common law mal- ice, in view of the rather elas- tic meaning the term has been given by Canadian courts. A qualified privilege ex- tended to publications to the world on matters of public interest would, of course, be the most "natu- ral extension" of the law of defamation. It is one that is presently enjoyed by corporations, associa- tions, unions, universities, and others, under circum- stances comparable to pub- lications in the media. After all, publication to the "whole world" merely means publi- cation under circumstances where no restriction is placed on the nature of the audience. It has nothing to do with its actual size. Thus, information published by a church to its members will be protected by a qualified privilege, with the burden on the person defamed to show malice; while if the same information is published by a small village newspaper, the burden will be on them to show that they acted responsi- bly — even though the num- ber of church members may be considerably greater than those to whom it is published by the press. The court was not asked by counsel for the media to consider the possibility of neg- ligence as an appropriate "half- way" house for the protection of the media, nor did the court take it upon itself. This is par- ticularly surprising in view of the fact that under the law of Quebec a finding of fault is a requirement in all actions for defamation, and the burden is on the person alleging fault to prove it. In effect, the media intervener convinced the court that the communications me- dia in Ontario deserved less protection for publications of matters of public interest than presently available to their counterparts in Quebec. A rule of negligence would at least have brought the law of defamation into the 19th cen- tury when compared to other common law torts. Under the law as it presently stands, if the media's truck that carries newspapers to newsstands goes out of control and seriously injures a number of persons, the injured parties will have the burden of proving that the driver and, therefore, the pub- lisher was at fault; if the news- papers should reach their des- tination and be published, the burden is on the newspaper to prove that it acted responsi- bly in injuring the reputation of the plaintiff if the latter is defamed. The moral is that in Ontario there is less risk if publishers run someone down with their truck than in their newspaper. Speaker's Corner What the chef saw C hefs, not lawyers, are Conservative prime min- isters' worst nightmare. The latest news in Ottawa is that François Martin, who used to chef for Brian Mulroney and his wife, Mila, at 24 Sussex Dr., is getting ready to answer a summons to testify before the Commons ethics committee. Chef Martin quite indiscreetly told author Stevie Cameron that he used to take piles of cash out of 24 Sussex and make deposits at night into Mila's account at the Bank of Montreal on Wellington St., across the street from the Parliament buildings. What a strange nocturnal tale! But that fits in nicely with what West Coast blogger Norman Spector wrote in Le Devoir the other day about huge sums of cash coming into 24 Sussex during the days while he was Mulroney's chief of staff from 1990 to 1993. Spector says he has all the evidence and wants to show it to the ethics committee. Boy, are they ever interested. Mulroney had his latest lawyer Guy Pratte (yes, the son of the famous judge) send a letter to committee chair Paul Szabo the other day so much as telling him that Mulroney will consider testifying before the committee only if they are nice to him and don't go poking around in his personal finances. That's the same Mulroney who during an examination for discovery back in 1996 generously offered to show his bank and income tax records if it would help prove his case. Too bad they didn't take him up on it. A lawyer like Pratte (a veteran of the Gomery wars in Montreal) will ensure Mulroney won't be bullied by a bunch of hick MPs. Pratte made it clear Mulroney will answer the Commons committee summons only if it suits him. What are they going to do if he doesn't? Drag him up the Hill in chains? So why would Spector, Mulroney's chef de cabinet, suddenly spill the beans after so many years? Is it because Mulroney left him left out of his recent 900- page paean to himself. Not one blessed word about Spector — as if Spector had never graced the face of the earth with his presence. Pratte wrote the committee: "And there is absolutely nothing in. . . . any mandate that you may have that would remotely justify inviting witnesses to testify about the life of the Mulroney family while at 24 Sussex, almost 25 years ago." If that isn't clear enough. So let's not hear anything more about bags of cash coming in the front door and going back out at night with the chef. What we know for sure: it should be quite a committee hearing. So why do Conservative prime ministers have so much trouble with the kitchen help — first Mulroney, and then Harper himself two years ago. On the day he took over as prime minister, Harper fired his Stornoway chef, Henrik Lundsgaard. He gave him the sack. Bang. Gone, just like that. No chance to cook in the Big House on Sussex. So Lundsgaard sued, got himself Richard Bosada, a lawyer who isn't afraid of anything —cops, crooks, the mob, not even the Conservative Party. Lundsgaard said in his statement of claim he knew things were going wrong when they had him making sandwiches for the kids' school lunches, then babysitting, and then washing the family car — hardly work worthy of a world-class chef such as himself. The final straw came when the family cat died and Harper ordered Lundsgaard to bury it in the garden. Lundsgaard had never been trained as an undertaker. But he did it anyway. Lundsgaard sued for $250,000: lost wages, emotional trauma, his reputation — the whole package. He settled out of court for an undisclosed sum. Guess who paid? After all, Lundsgaard was a federal employee. He went to work as a chef at the Nortel kitchens. No cats to bury in Kanata; except the entire firm almost got buried. At the time Harper's spokesman Dimitri Soudas said only that the Lundsgaard firing was a "staffing issue." Last week, the Globe and Mail and Radio Canada reported allegations that two years ago Soudas went to bat, using the prime minister's office, to help a landlord who happened to be a big Conservative organizer. The public works people claimed the landlord wasn't making specified repairs to the Esplanade Laurier in Ottawa, which he had rented to the government. Seems, according to public works officials, that marble slabs were falling off the building. It houses the Finance Department. It would hardly do to have a big Toronto tax lawyer brought in to consult on the budget, and have him whapped on the head by a marble tombstone as he left the place. Soudas said he did nothing wrong. He certainly wasn't lobbying for the landlord. Might it be a staffing issue? Perhaps the bad luck of Conservative prime ministers with their chefs has changed, and it is chiefs of staff and media chiefs they should worry about instead. Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His email address is richardcleroux@ rogers.com The Hill By Richard Cleroux BY RAYMOND BROWN For Law Times COMMENT Who's guarding the henhouse? See Another, page 8 LT *Pages 1-20.indd 7 1/31/08 6:56:17 PM

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