Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator ...... Ryan Rogers Electronic Production Specialist ............. Derek Welford Advertising Sales . . . . . . . . . . . . . . . . . . . . . . . . . . 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. .... Kimberlee Pascoe apriL 12, 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. Editorial Obiter Keep letting the sunshine in T he top five legal earners on the province's sunshine list received a relatively modest increase in pay in 2009 over the previous year. In fact, while Ontario Power Genera- tion general counsel David Brennan saw his pay go down by about $17,000 (not including taxable benefits), the high- est earners as a group received $85,000 more last year for an increase of five per cent. That's not a big pay hike but it's cer- tainly enough given that in 2009, On- tario was in the depths of the recession. As a result, many Ontarians were receiv- ing no pay hikes at all if they were lucky enough to still have a job. The release of the sunshine list (see Law Times, page 5) prompted the usual comments that it might just be time for the government to raise the $100,000 floor for publicly reporting civil servants' salaries. Given that the list itself is a crea- ture of former premier Mike Harris' gov- ernment of the 1990s, that's a reasonable argument to make. Certainly, while some people might be concerned that the num- ber of names on the list has increased over the years, much of that is due to inflation. At the same time, it's important to note that the government has been playing catch-up with its employees to make their salaries more competitive with the private sector following years of cutbacks. Is the sunshine list still relevant then? Should we see the salaries of so many Crown prosecutors whose pay, while generous to the average Ontarian, still often lags behind their private sector counterparts? The government thinks so. Follow- ing the recent release of the list, Premier Dalton McGuinty said he's not in favour of raising the $100,000 floor because it's still a lot of money to most people. That's true, but given inflation and the need to attract top talent, it's certainly legitimate to call for an increase after so many years. Nevertheless, during a period of eco- nomic uncertainty and fiscal restraint, it's not the time to do so. At the same time, while officials have talked for years about the need to pay civil servants well, particularly the most senior ones, it's become clear that the big sal- ary packages don't necessarily deliver the results they seek. Consider the eHealth Ontario scandal. Last year, the agency awarded former CEO Sarah Kramer a big bonus on top of her $380,000 sal- ary, a move that didn't appear to get the province very far in its long-sought goal of finally getting Ontario into the mod- ern age of electronic health records. So it's clear that quantity doesn't al- ways deliver quality. As a result, let's keep letting the sunshine in for those earning more than $100,000. In that way, we still have some leverage to check whether the government is putting those salaries to good use. — Glenn Kauth I Defamation law not a tool to regulate racist speech Social t's long been accepted that it isn't actionable under defa- mation law to say that all lawyers are thieves. But should the result differ if the words complained of were "all Arab and Haitian lawyers are thieves?" That's what the Supreme Court of Canada will decide in the Farès Bou Malhab v. Diffu- sion Métromédia CMR Inc. case argued before the court last De- cember. Instead of criticizing law- yers, however, Quebec radio talk- show host André Arthur made disparaging statements about Montreal's Arab and Haitian taxi drivers. Aside from denouncing these drivers as incompetent, ar- rogant, and unhygienic, he spec- ulated that they had gotten their permits through bribery. Of course, defamation actions are personal in nature as only in- dividuals may sue for libel. In or- der to succeed, plaintiffs must es- tablish that the words published were "of and concerning" them. This simple requirement has resulted in the law disallowing groups from making a success- ful claim. Only those members who have been specifically iden- tified or are identifiable may sue. As stated in the oft-cited 1944 Knuppfer decision of the House of Lords, "Where the plaintiff is not named, the test which decides whether the words used refer to him is the ques- tion whether the words are such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to. There are cases in which the language used in reference to a limited class may be reasonably understood to refer to every member of the class, in which case every member may have a cause of action." A recent application of these principles arose in the 2004 Gau- thier v. Toronto Star Newspapers Ltd. decision in which a group of Toronto police officers sued over a series of articles that portrayed members of the Toronto Police Service as exhibiting racist ten- dencies. The Court of Appeal up- held the dismissal of the action by stating, "The articles complained of use general language such as 'police' or 'Toronto Police' and are about systemic racism. The articles do not name or identify any particular police officer. It is plain and obvious to us that the Justice By Alan Shanoff articles read all together, or indi- vidually, are not capable of being reasonably understood to suggest that each individual member of the Toronto Police is 'racist' or engages in 'racial profiling.'" In the Montreal case, while Arthur's statements are offensive and hurtful, we must remember that the purpose of defamation law is to protect reputations, not to prevent hurt feelings or re- dress historic wrongs. References to race, ethnicity or even religion shouldn't alter the legal analy- sis, although the modifiers may serve to reduce the size of the group, thereby making it easier for individual members to argue the words referred to them. As much as society may wish to protect groups from racist or hurtful speech, we shouldn't al- low any change to the law that would permit group defamation actions. To use defamation law www.lawtimesnews.com in such a fashion could un- duly stifle legitimate political or public interest speech. Defa- mation law must never serve as a tool to buttress ideologies, religions or religious beliefs. If we changed defamation laws to protect groups identifiable by race, ethnicity or religion, there would be nothing to stop groups from using the law to shield their ideologies or religious beliefs. There are other methods of addressing racist speech. Inciting hatred against groups identifiable by race, colour, religion, ethnici- ty or sexual orientation is a crim- inal offence. Groups or represen- tatives may file complaints with the Canadian Radio-television and Telecommunications Com- mission or a provincial press council. The CRTC has the power to discipline broadcasters for using racist speech. Groups may also use non-le- gal tactics such as boycotts. They can organize pickets. They can hold press conferences to publi- cize their position. The Internet and social networking sites can also provide a forum from which a group may counterattack. In short, there are many avenues available for groups to express their views and fight back with- out having to resort to the courts via a libel action. The current law on group defamation strikes a balance be- tween freedom of expression and protection of reputation. There is no reason to expand the law so as to either permit groups to sue for libel or loosen the restrictions on the ability of an individual group member to launch an ac- tion. Defamation law shouldn't be a tool to protect groups, no matter how tempting it may be to attempt to shield society from racist or offensive speech. The law wouldn't allow a Montreal taxi driver to success- fully sue over offensive com- ments made about Montreal taxi drivers. Modifying the state- ment to refer to the approxi- mately 1,100 Arab and Haitian Montreal taxi drivers shouldn't change the result. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He is currently a freelance writer for Sun Media and teaches media law at Humber College. His e-mail ad- dress is ashanoff@gmail.com.

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