Law Times

Law TiMes • March 8, 2010 CaseLawLaw SUPREME COURT OF CANADA Torts LIBEL AND SLANDER Law of defamation should be modified to recognize new defence of responsible communication on matters of public interest Libel action against newspaper raised applicability of "respon- sible journalism" defence. Per- sonal plaintiff was prominent citizen and businessman. His home and offi ce were built on large property on lake. He purchased large tract of adja- cent Crown land on which he built private golf course. Local residents and cottagers raised environmental concerns when plaintiff sought to acquire ad- ditional land to expand golf course. Defendant newspa- per published article regard- ing proposed golf course expansion. Plaintiff and his company sued newspaper for libel, arguing article sug- gested plaintiff used political infl uence gained by friendship with Premier and donations to Conservative Party to circum- vent local citizens' concerns and normal approval process. Reporter attempted to verify allegations but plaintiff chose not to provide comment. At trial newspaper argued both traditional defence of quali- fi ed privilege and emerging defence of responsible jour- nalism. Trial judge rejected former and sent case to jury essentially on defences of truth and fair comment. Jury rejected defences and found newspaper liable. Newspaper's appeal to Ontario Court of Appeal allowed. Court held that trial judge erred by con- fl ating two defences of public interest responsible journalism and qualifi ed privilege and should have left responsible journalism defence with jury. Although in leaving defence of fair comment on matter of public interest with jury trial judge properly set out honest belief test, his repetition of concept that when applying test, jury members are to con- sider what "fair minded" per- son would believe constituted error. Trial judge also failed to make it clear that even if jury found some elements that could be construed as malice, if defence of fair comment otherwise applied, malice would only defeat defence if it was dominant purpose of de- famatory article. Court of Ap- peal ordered new trial. Plain- tiff s appealed and newspaper cross-appealed, asking court to apply new responsible jour- nalism defence and dismiss ac- tion. Appeal and cross-appeal dismissed. Law of defamation should be modifi ed to provide greater protection for com- munications on matters of public interest. Current law, which accords no protection for statements on matters of public interest published to world at large if cannot be proven to be true, inhibits po- litical discourse and debate on matters of public importance. When proper weight given to constitutional value of free ex- pression on matters of public interest, balance tips in fa- vour of broadening defences available to those who com- municate facts it is in public's interest to know. Reasonable and proportionate response to need to protect reputation while sustaining public ex- change of information that is vital to modern Canadian so- ciety permits defence allowing publishers to escape liability if they can establish they acted responsibly in attempting to verify information on mat- ter of public interest. Law of defamation should be modi- fi ed to recognize new defence of responsible communication on matters of public interest. Traditional defence of quali- fi ed privilege remains intact. Defence of responsible com- munication requires that: (a) publication be on matter of PaGe 13 Follow on www.twitter.com/lawtimes COURT DECISIONS CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. public interest; and (b) de- fendant show that publica- tion responsible in that he or she diligent in trying to verify allegation(s). Judge determines whether impugned statement relates to matter of public in- terest. If public interest shown, jury decides whether defence of responsible communication established. If dispute itself matter of public interest and allegations fairly reported, re- port may be responsible even if some of statements made may be defamatory and untrue provided: (1) report attributes statement to person, prefer- ably identifi ed, thereby avoid- ing total unaccountability; (2) report indicates, expressly or implicitly, that truth not veri- fi ed; (3) report sets out both sides of dispute fairly; and (4) report provides context in which statements made. Open to jury to consider statement attributed to neighbour that "everyone thinks it's a done deal" as statement of fact which raised defence of re- sponsible communication on matter of public interest. Trial judge erred in failing to leave this defence or any similar de- fence to jury. Grant v. Torstar Corp. (Dec. 22, 2009, S.C.C., McLachlin C.J.C., Binnie, LeBel, Des- champs, Fish, Abella, Char- ron, Rothstein and Cromwell JJ., File No. 32932) Decision at 301 D.L.R. (4th) 129, 171 A.C.W.S. (3d) 969 was af- fi rmed. 183 A.C.W.S. (3d) 1173 (79 pp.). Defence of responsible communication on matters of public interest applies where publication on matter of public interest and publisher diligent in trying to verify allegations Plaintiff was OPP constable who, by own initiative, went to New York to participate in search and rescue operations after September 11, 2001 ter- rorist attacks on World Trade Center. Plaintiff gave number of media interviews and por- trayed as hero for rescue eff orts; however, defendants published three articles that cast plain- tiff in negative light. Articles suggested that: plaintiff mis- represented himself to New York police as being member of R.C.M.P.; that he might have compromised rescue op- erations by misrepresenting himself and his dog as being properly trained for K-9 rescue eff orts; that he had been asked to leave Ground Zero by New York police; and that he faced police disciplinary charges for his conduct. Plaintiff brought defamation action against de- fendants. Defendants raised defence of qualifi ed privilege. Trial judge found that two ar- ticles did not attract qualifi ed privilege and only defences of fair comment and justifi cation available. Trial judge ruled that third article regarding pro- spective disciplinary charges protected by qualifi ed privi- lege and claim based on that article dismissed. Jury awarded plaintiff damages. Defendants' appeal dismissed. Court of Ap- peal held that qualifi ed privi- lege should not be extended to all media reports on matters of public interest but it was appro- priate to adopt public interest responsible journalism defence, which represented natural ex- tension of law as developing. Court held, however, that de- fendants not entitled to benefi t of public interest journalism defence because they had not advanced defence at trial. Fur- ther appeal to Supreme Court of Canada allowed and new tri- al ordered. Defence of respon- sible communication on mat- ters of public interest applies where publication on matter of public interest and publisher diligent in trying to verify al- legations. Public interest test met since Canadian public has vital interest in knowing about professional misdeeds of those entrusted with protecting pub- lic safety. Real issue whether defendants diligent in trying to verify allegations prior to publication matter for jury at new trial. Appellate court may entertain new issue where in- THERE IS A DIFFERENCE RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 Rainmaker_LT.indd 1 Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca www.lawtimesnews.com 3/4/10 2:19:58 PM terests of justice require it and where court has suffi cient evi- dentiary record and fi ndings of fact. Questionable whether is- sue on appeal genuinely "new" since arguments on qualifi ed privilege and responsible jour- nalism both directed toward same fundamental question of whether defendants enjoyed privilege to publish impugned material on grounds of pub- lic interest and due diligence. Evidentiary defi ciencies largely immaterial in any event since ultimate determination of re- sponsibility is matter for jury and proper evidentiary record can be established at new trial. Interests of justice favoured al- lowing defendants opportunity to avail themselves of change in law. Plaintiff would suff er no undue prejudice from new trial other than costs and defen- dants would be seriously disad- vantaged by being deprived of opportunity to avail themselves of responsible communication defence which their appeal was responsible for developing. Cusson v. Quan (Dec. 22, 2009, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Roth- stein and Cromwell JJ.) Deci- sion at 286 D.L.R. (4th) 196, 162 A.C.W.S. (3d) 47 was reversed. 183 A.C.W.S. (3d) 1174 (26 pp.). Practice, Process, And Procedure GENERAL Where Crown elects to proceed summarily, proceedings are governed by provisions of Part XXVII of Criminal Code, including six-month limitation period Crown election to proceed by summary conviction. Plea not yet entered. Information sworn more than six months after alleged off ence. Where information sworn more than six months after alleged off ence proper remedy is to declare mistrial. Where accused ap- peals summary conviction on ground that proceedings were instituted outside of six month limitation period appropriate

• Cover
• Thinking Globally
• Bankruptcy Woes
• Focus On Immigration Law