Campbell v. Jones et al., 2002 NSCA 128

• Judge: Glube, C.J.N.S., Roscoe and Saunders, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 24, 2002
• Jurisdiction: Nova Scotia
• Citations: 2002 NSCA 128;(2002), 209 N.S.R.(2d) 81 (CA)

Campbell v. Jones (2002), 209 N.S.R.(2d) 81 (CA);

 656 A.P.R. 81

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. NO.040

Burnley A. Jones and Anne S. Derrick (appellants) v. Carol Campbell (respondent)

(CA 174355; 174346; 2002 NSCA 128)

Indexed As: Campbell v. Jones et al.

Nova Scotia Court of Appeal

Glube, C.J.N.S., Roscoe and Saunders, JJ.A.

October 24, 2002.

Summary:

The plaintiff female police officer went to a school to investigate, inter alia, the theft of $10. Three 12 year old black female students were questioned and searched. The $10 was found stuffed down the front of one student's pants. The students retained coun­sel and filed complaints against the officer, alleging that they were inappropriately strip searched and that they were discriminated against on racial and socio-economic grounds. Prior to the investigation commenc­ing, the two defendant lawyers held a press conference, making statements and disclosing the contents of the complaints. The plaintiff sued the defendants for damages for defama­tion. During the jury trial, two issues arose: (1) whether the defence of qualified privilege applied (either generally or in relation to the publication of reports respecting court pro­ceedings) and (2) whether there was suf­ficient evidence of malice to go to the jury.

The Nova Scotia Supreme Court, in a judgment reported (2001), 197 N.S.R.(2d) 212; 616 A.P.R. 212, concluded that the defences of qualified privilege and qualified reporting privilege did not apply and that there was insufficient evidence of malice to put to the jury. The jury subsequently found the defendants liable for defamation and awarded $240,000 damages. The court awarded the plaintiff $75,000 lump sum costs. The defendants appealed the jury verdict, the damage award and various rulings by the trial judge, including denial of the privilege defences. The defendants also submitted that the trial judge misdirected the jury and erred in evidentiary rulings.

The Nova Scotia Court of Appeal, Saunders, J.A., dissenting, allowed the ap­peal, dismissing the plaintiff's claim on the ground that the trial judge erred in find­ing that the defence of qualified privilege did not apply to the press conference. The majority of the court found it unnecessary to resolve the remaining issues. Saunders, J.A., opined that the defences of qualified privi­lege and qualified reporting privilege did not apply and, if even if they did, the defendants ex­ceeded whatever privilege attached to the press conference. Saunders, J.A., would have dismissed the remaining grounds of appeal.

Damage Awards - Topic 632

Torts - Injury to the person - Libel and slander - The plaintiff female police officer went to a school to investigate, inter alia, the theft of $10 - Three 12 year old black female students were questioned and searched - The $10 was found stuffed down the front of one student's pants - The students retained the defendant law­yers and filed complaints against the officer, alleging an inappropriate strip search and discrimination on racial and socio-economic grounds - Prior to the investigation commencing, the lawyers held a press conference, making statements and disclosing the contents of the com­plaints - A jury found the lawyers liable for defamation and awarded $240,000 general damages - The lawyers appealed, submitting that the damage award was excessive - The Nova Scotia Court of Appeal, per Saunders, J.A., opined that the substantial damage award was not, in the circumstances, so excessive as to warrant appellate intervention - See paragraphs 410 to 417.

Evidence - Topic 4884

Witnesses - Examination - Re-examination of witnesses - Circumstances when per­mitted - The Nova Scotia Court of Appeal, per Saunders, J.A., opined that "the reha­bilitation of a witness's credibility is with­in the proper scope of re-examination. A witness may be re-examined on any new matter that arose on the cross-examination of that witness. It is appropriate in re-examination to elicit evidence which explains, qualifies, clarifies, minimizes or limits the effect of testimony given in cross-examination or which puts into per­spective any facts revealed in cross-exami­nation which might discredit the witness. During re-examination, the witness is entitled to clear up confusion or explain ambiguities in their cross-examination evidence. Explanations may be given for apparent inconsistencies in the witness' testimony. Courts have long recognized that re-examination of a witness may be appropriate where cross-examination has obscured evidence given in direct or has cast doubt on the credibility of the witness in relation to such evidence." - See para­graph 307.

Libel and Slander - Topic 2981

Defences - Qualified privilege - General - The Nova Scotia Court of Appeal stated that "qualified privilege attaches to the occasion upon which the communication is made and not the communication itself" - The court referred to the following defini­tion: "a privileged occasion is ... an oc­casion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This re­ciprocity is essential." - See paragraph 31.

Libel and Slander - Topic 2985

Defences - Qualified privilege - General interests of society, defence of person's own interests - Two lawyers represented young female black students who filed a complaint against a police officer, alleging an inappropriate strip search and discrimi­nation on racial and socio-economic grounds - Prior to the investigation com­mencing, the lawyers held a press con­ference, making statements and disclosing the contents of the complaints - The officer sued for defamation - The lawyers claimed qualified privilege - The trial judge, in rejecting the defence, stated that "the of­ficial fact-finding processes initiated by the defendants for their clients, the lack of urgency and the publication to the world at large before the investigative processes had even begun are such that the communica­tions were not warranted at the time they were made, and the public interest in the scrutiny of police behaviour on matters of race had not yet, at the time of the press conference, been engaged sufficiently to outweigh protection of reputation" - The Nova Scotia Court of Appeal held that the press conference was an occasion of quali­fied privilege - Publication to the world at large did not preclude qualified privilege - The court stated that "the [lawyers], in accordance with the principles of their professional ethics, had a duty to speak about the events at the school, the com­plaints filed against the [officer] and the Charter breaches they reasonably under­stood had taken place. The members of the public in attendance at the meeting had a reciprocal interest in hearing about the exercise of the authority of the police in the neighbourhood school. In the whole context, including the Charter rights and values implicated, the previous press coverage and the resulting community interest in the matter, and given the po­sition of the [lawyers] as counsel for the girls, the occasion ought to have the pro­tection afforded by the defence of qualified privilege." - The court also held that the statements made were reasonably appro­priate to the occasion and did not exceed the limits of the privilege - See paragraphs 27 to 73.

Libel and Slander - Topic 2988.1

Defences - Qualified privilege - Loss of - Where limits of privilege exceeded - [See Libel and Slander - Topic 2985 ].

Libel and Slander - Topic 5407

Evidence - General - Expert evidence - The Nova Scotia Court of Appeal, per Saunders, J.A., opined that a trial judge did not err in instructing the jury not to consider expert evidence in determining whether words were defamatory - Saunders, J.A., stated that "the question of whether a statement is defamatory is for the jury alone to decide. The jury must answer the question of whether the words complained of, in their natural and ordi­nary meaning, would lower the plaintiff's reputation in the eyes of right-thinking members of society. The test to be applied is an objective one and in the absence of a pleaded 'true innuendo', special expertise or knowledge of extrinsic facts are not to be imputed to the 'reasonable person' from whose perspective the statement is to be assessed." - See paragraph 357.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - Three young students brought an action against a police officer, the city and others for damages for violation of their Charter rights in relation to an alleged strip search conducted by the officer in a school office - At issue in the officer's defamation action against the two lawyers representing the students in the complaints process was whether the trial judge erred in granting relief from the implied undertaking rule by permitting discovery evidence in the Charter proceed­ing to be admitted in the defamation pro­ceeding - The Nova Scotia Court of Appeal, per Saunders, J.A., in opining that the trial judge did not err, stated that "the mischief which the rule seeks to prevent is the use of discovery evidence in a manner which is unfair to the party who gave it. In situations where a litigant comes into possession of otherwise confidential infor­mation under the auspices of pre-trial discovery or disclosure procedures, the courts have held the litigant to an implied undertaking not to use that information for an improper purpose. Thus the rule oper­ates to protect the privacy of a litigant when that privacy has been breached by court sanctioned procedures." - The two proceedings were related where they involved the same events - An overly strict application of the rule would cause an injustice - See paragraphs 279 to 294.

Practice - Topic 4500

Discovery - Use of examination in court - Reading of discovery evidence into the record - The Nova Scotia Court of Appeal, per Saunders, J.A., opined that rule 18.14 was extremely broad and permitted counsel to make use of an adverse party's dis­covery evidence as counsel saw fit - There was no discretion to refuse a party's attempt to tender the adverse party's evi­dence unless the evidence was inadmissible - See paragraph 322.

Practice - Topic 5165

Juries and jury trials - Conduct of jury trial - Peremptory challenges - Two lawyers were defendants in a defamation jury trial -Section 16(1) of the Juries Act gave four peremptory challenges to defendants col­lectively - Section 16(2) gave the trial judge a discretion to give defendants "adverse in interest" four challenges each -The Nova Scotia Court of Appeal, per Saunders, J.A., opined that the trial judge did not err in refusing one defendant's request for four challenges of his own - The two lawyers were not "adverse in interest" - Neither defendant could lessen his or her liability by showing a higher degree of fault by the other - Their de­fences were similar - See paragraphs 295 to 303.

Cases Noticed:

R. v. Golden (I.V.) (2001), 279 N.R. 1; 153 O.A.C. 201 (S.C.C.), refd to. [paras. 22, 135].

Hill v. Church of Scientology and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [paras. 31, 96].

Adam v. Ward, [1917] A.C. 309 (H.L.), refd to. [paras. 31, 99].

RTC Engineering Consultants Ltd. et al. v. Ontario et al. (2002), 156 O.A.C. 96 (C.A.), refd to. [para. 32].

Moises v. Canadian Newspaper Co. (1996), 76 B.C.A.C. 263; 125 W.A.C. 263; 30 C.C.L.T.(2d) 145 (C.A.), refd to. [paras. 35, 99].

Sapiro v. Leader Publishing Co., [1926] 2 W.W.R. 268 (Sask. C.A.), refd to. [paras. 35, 99].

Reynolds v. Times Newspapers Ltd. et al. (1999), 250 N.R. 1 (H.L.), refd to. [paras. 37, 92].

Jones v. Bennett, [1969] S.C.R. 277, refd to. [paras. 37, 99].

Stopforth v. Goyer (1979), 97 D.L.R.(3d) 369 (Ont. C.A.), refd to. [para. 37].

Camporese v. Parton (1983), 150 D.L.R.(3d) 208 (B.C.S.C.), refd to. [para. 37].

Parlett v. Robinson (1986), 30 D.L.R.(4th) 247 (B.C.C.A.), refd to. [paras. 37, 99].

Baumann v. Turner et al. (1993), 32 B.C.A.C. 9; 53 W.A.C. 9; 105 D.L.R.(4th) 37 (C.A.), refd to. [para. 37].

International Association of Bridge, Struc­tural and Ornamental and Reinforcing Ironworkers, Local 97 v. Campbell et al., [1997] B.C.T.C. Uned. E89; 152 D.L.R.(4th) 547 (S.C.), refd to. [para. 37].

Silva v. Toronto Star Newspapers Ltd. et al. (1998), 167 D.L.R.(4th) 554 (Ont. Gen. Div.), refd to. [para. 37].

St-Jean v. Mercier (2002), 282 N.R. 210 (S.C.C.), refd to. [para. 40].

Dhami et al. v. Canadian Broadcasting Corp. et al., [2001] B.C.T.C. 1811 (S.C.), refd to. [para. 48].

Pepsi Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al. (2002), 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22 (S.C.C.), refd to. [para. 69].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1 (S.C.C.), refd to. [para. 80].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161, refd to. [para. 84].

Douglas v. Tucker, [1952] 1 S.C.R. 275, refd to. [para. 99].

Ward v. Clark (2001), 161 B.C.A.C. 192; 263 W.A.C. 192 (C.A.), reving. [2000] B.C.T.C. 435 (S.C.), refd to. [para. 111].

McLouglin v. Kutasy, [1979] 2 S.C.R. 311; 26 N.R. 242, refd to. [para. 115].

R. v. Evans, [1993] 2 S.C.R. 629; 153 N.R. 212; 28 B.C.A.C. 81; 47 W.A.C. 81, refd to. [para. 197].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 197].

Williams v. Reason, [1988] 1 All E.R. 262 (C.A.), refd to. [para. 198].

Leslie v. Canadian Press, [1956] S.C.R. 871, refd to. [para. 198].

McLean v. Campbell (1905), 38 N.S.R. 416 (C.A.), refd to. [para. 198].

Morriscey v. Zwicker (2001), 192 N.S.R.(2d) 268; 599 A.P.R. 268 (C.A.), refd to. [para. 199].

Vander Zalm v. Times Publishers (1980), 18 B.C.L.R. 210 (C.A.), refd to. [para. 224].

Pound v. Scott, [1973] 4 W.W.R. 403 (B.C.S.C.), refd to. [para. 224].

Slim v. Daily Telegraph, [1968] 1 All E.R. 497 (C.A.), refd to. [para. 227].

Laufer v. Bucklaschuk (1999), 145 Man.R.(2d) 1; 218 W.A.C. 1; 181 D.L.R.(4th) 83 (C.A.), refd to. [para. 235].

Jones v. Skelton, [1963] 1 W.L.R. 1362 (P.C.), refd to. [para. 236].

Lewis v. Daily Telegraph Ltd., [1963] 2 All E.R. 151 (H.L.), refd to. [para. 237].

Allan v. Bushnell T.V. Co. (1969), 4 D.L.R.(3d) 212 (Ont. C.A.), refd to. [para. 239].

R. v. A.R.B. (1998), 113 O.A.C. 286; 41 O.R.(3d) 361 (C.A.), affd. [2001] 1 S.C.R. 781; 255 N.R. 201; 135 O.A.C. 144, refd to. [para. 246].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 247].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al. (2001), 274 N.R. 366; 150 O.A.C. 12 (S.C.C.), refd to. [para. 248].

Temple v. Riley (2001), 191 N.S.R.(2d) 87; 596 A.P.R. 87 (C.A.), refd to. [para. 249].

Campbell v. Jones et al. (1998), 168 N.S.R.(2d) 1; 505 A.P.R. 1 (S.C.), refd to. [para. 259].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 262].

R. v. D.D. (2000), 259 N.R. 156; 136 O.A.C. 201 (S.C.C.), refd to. [para. 267].

Sezerman v. Youle (1996), 150 N.S.R.(2d) 161; 436 A.P.R. 161 (C.A.), refd to. [para. 283].

Lac d'Amiante du Québec ltée v. 2858-0702 Québec Inc. et al. (2001), 274 N.R. 201 (S.C.C.), refd to. [para. 291].

Peddle v. Rowan Companies et al. (1993), 123 N.S.R.(2d) 24; 340 A.P.R. 24 (S.C.), refd to. [para. 299].

MacKay v. Gilchrist et al. (1962), 40 W.W.R.(N.S.) 22 (Sask. C.A.), refd to. [para. 299].

Edmonton (City) v. Lovat Tunnel Equip­ment Ltd. et al. (2000), 260 A.R. 245 (Q.B.), refd to. [para. 307].

Gervais v. Yewdale (Bankrupt) (1994), 51 B.C.A.C. 97; 84 W.A.C. 97 (C.A.), refd to. [para. 307].

Burton v. Howlett (2001), 191 N.S.R.(2d) 147; 596 A.P.R. 147 (C.A.), refd to. [para. 322].

Piercey v. Board of Education of Lunen­burg County District et al. (1998), 167 N.S.R.(2d) 68; 502 A.P.R. 68 (C.A.), refd to. [para. 325].

R. v. Clair (1992), 114 N.S.R.(2d) 337; 313 A.P.R. 337 (C.A.), refd to. [para. 360].

Brown v. Cole et al. (1998), 114 B.C.A.C. 73; 186 W.A.C. 73 (C.A.), refd to. [para. 373].

Hodgson v. Canadian Newspapers Co. et al. (1998), 68 O.T.C. 81; 39 O.R.(3d) 235 (Gen. Div.), varied (2000), 133 O.A.C. 174; 49 O.R.(3d) 161 (C.A.), refd to. [para. 373].

Dale v. Toronto Railway Co. (1915), 24 D.L.R. 413 (Ont. S.C.), refd to. [para. 389].

Stewart v. Spear, [1953] O.R. 502 (C.A.), refd to. [para. 390].

R. v. Boucher, [1955] S.C.R. 16, refd to. [para. 391].

Hall et al. v. Schmidt et al., [2001] O.T.C. 789; 56 O.R.(3d) 257 (Sup. Ct.), refd to. [para. 392].

McCannell v. McLean, [1937] S.C.R. 341, refd to. [para. 403].

Dubé v. Labar, [1986] 1 S.C.R. 649; 68 N.R. 91; 1 Y.R. 81, refd to. [para. 404].

Weare and Northwest Construction Ltd. v. Anthony (1981), 47 N.S.R.(2d) 411; 90 A.P.R. 411 (C.A.), refd to. [para. 405].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 405].

Broome v. Agar (1928), 138 L.T. 698 (C.A.), refd to. [para. 406].

Lockhart v. Harrison (1928), 44 T.L.R. 792 (H.L.), refd to. [para. 406].

Raspberry v. Canadian National Railway Co. (1928), 62 O.L.R. 406 (C.A.), refd to. [para. 407].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 18.14(1)(b), rule 18.14(3) [para. 321].

Juries Act, S.N.S. 1998, c. 16, sect. 16(2) [para. 296].

Authors and Works Noticed:

Brown, Raymond E., The Law of Defama­tion in Canada (2nd Ed. 1994), p. 13-4 [para. 30]; para. 25.2 [para. 411].

Gatley, Libel and Slander (9th Ed. 1998), paras. 14.2 [para. 33]; 14.55 [para. 120].

Laskin, John, The Implied Undertaking in Ontario (1989-90), 11 Adv. Q. 298, generally [para. 283].

Nova Scotia Barristers' Society, Legal Ethics and Professional Conduct, A Handbook for Lawyers in Nova Scotia (1990), p. 93 [para. 38]; c. 21 [para. 55].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 23 [para. 244].

Counsel:

William L. Ryan, Q.C., and Nancy G. Rubin, for the appellant, Jones;

S. Bruce Outhouse, Q.C., and Lester Jesudason, for the appellant, Derrick;

George W. MacDonald, Q.C., and Hugh H. Wright, for the respondent.

This appeal was heard on June 10-11, 2002, before Glube, C.J.N.S., Roscoe and Saunders, JJ.A., of the Nova Scotia Court of Appeal.

On October 24, 2002, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Roscoe, J.A. (Glube, C.J.N.S., con­curring) - see paragraphs 1 to 74;

Saunders, J.A., dissenting - see para­graphs 75 to 427.