Campbell v. Jones, (2001) 197 N.S.R.(2d) 212 (SC)

• Jurisdiction: Nova Scotia
• Judge: Moir, J.
• Neutral Citation: 2001 NSSC 139
• Citation: (2001), 197 N.S.R.(2d) 212 (SC),2001 NSSC 139,[2001] NSJ No 373 (QL),197 NSR (2d) 212,197 NSR(2d) 212,(2001), 197 NSR(2d) 212 (SC),197 N.S.R.(2d) 212,[2001] NS.J. No 373 (QL)
• Date: 10 May 2001
• Court: Supreme Court of Nova Scotia (Canada)

Campbell v. Jones (2001), 197 N.S.R.(2d) 212 (SC);

 616 A.P.R. 212

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. OC.028

Carol Campbell (plaintiff) v. Burnley A. Jones and Anne S. Derrick (defendants)

(S.H. No. 121031; 2001 NSSC 139)

Indexed As: Campbell v. Jones et al.

Nova Scotia Supreme Court

Moir, J.

August 30, 2001.

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 Halifax Police Force, 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 concluded that the defence of qualified 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. The court awarded the plaintiff $75,000 lump sum costs.

Interest - Topic 5009

Interest as damages (prejudgment interest) - General principles - Prejudgment interest - Calculation of (incl. rate) - The plaintiff was defamed in April 1995 - It took six years for the action to conclude with a jury trial damage award - The plaintiff claimed 4.6% prejudgment interest (commercial rate) for the full six year period - The defendant submitted that interest should be limited to 2.5% and payable for only three years, given the delay in the litigation - The Nova Scotia Supreme Court held that the jury award covered inflation over the six year period and that "the rate should be reduced to back-out the portion of com­mercial rates that covers inflation" - Ac­cordingly, 2.6% was a fit rate of interest - The court declined to reduce the period over which prejudgment interest was to be calculated - Although six years was a moderately long time to bring a cause to trial, given the circumstances of the case, there was no undue delay and no other grounds to reduce the time period - See paragraphs 44 to 53.

Interest - Topic 5525

Interest as damages (prejudgment interest) - Bars - Delay - [See Interest - Topic 5009].

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 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 lawyers held a press conference, making statements and disclos­ing the contents of the complaints - The plaintiff sued for defamation - The lawyers claimed qualified privilege, submitting that the statements were made on "an occasion where the person who makes a communi­cation has an interest or duty, legal, social or moral, to make it to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it" - The Nova Scotia Supreme Court rejected the defence - The court 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" - See paragraphs 20 to 33.

Libel and Slander - Topic 2992

Defences - Qualified privilege - Judicial proceedings - Two lawyers represented young female black students who filed a complaint against a police 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 lawyers held a press conference, making statements and disclos­ing the contents of the complaints - The plaintiff sued for defamation - The lawyers claimed qualified privilege, submitting that the press conference was within the privi­lege afforded to fair and accurate reports of court proceedings, which had recently been extended to reports upon pleadings, notices of motion and affidavits not yet read in open court - The Nova Scotia Supreme Court held that "I agree ... that the qualified privilege protecting reports of judicial proceedings, including documents filed with the court, may extend to docu­ments to be produced before a tribunal. However, in the case of a complaint under the Police Act, the privilege does not arise merely on the filing of the complaint because no public judicial hearing is engaged until there is a notice of review of an internal decision and, where the com­plainant seeks review of the internal de­cision, a determination by the Police Com­mission to refer the complaint to the Police Review Board. Further, it is my opinion the privilege should not arise where the immediate purpose of the complaint con­cerns an investigation rather than a hear­ing." - See paragraphs 1 to 19.

Libel and Slander - Topic 4063

Malice - As a bar to defence of fair com­ment or qualified privilege - Requirement of express or actual malice - Two lawyers represented young female black students who filed a complaint against a police 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 lawyers held a press conference, making statements and disclosing the contents of the com­plaints - The plaintiff sued for defamation - The lawyers claimed qualified privilege -At issue was whether there was sufficient evidence of malice to leave the issue with the jury - The Nova Scotia Supreme Court held that the evidence was insufficient to raise a probability of malice - There was no suggestion of personal animosity - The court stated that "while the lawyers took the risk that the information they acted upon may turn out to be untrue, and thus took the risk the information would not afford a basis for the defence of fair com­ment, the information was sufficiently extensive that I do not believe the publi­cation of it and the comments raise a probability of carelessness amounting, with lawyers, to recklessness" - See paragraphs 34 to 43.

Libel and Slander - Topic 4146

Malice - As a bar to defence of fair com­ment or qualified privilege - Evidence - Actual malice - The Nova Scotia Supreme Court stated that "a finding of actual malice will defeat a defence of qualified privilege or a defence of fair comment, and a finding of actual malice is necessary to an award of aggravated damages. ... Most usually, actual malice is established by showing ill-will or animosity of the defendant toward the plaintiff ... However, malice has a broader meaning than that ... actual malice could be established where the defendant did not believe in the truth of the publication or where the defendant was reckless as to its truth" - The court stated that the same standard of proof applied to establishing actual malice re­specting qualified privilege, fair comment and aggravated damages - See paragraphs 34 to 40.

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - The Nova Scotia Supreme Court extensive­ly canvassed the case law respecting those rare cases when a court should exercise its discretion to award lump sum costs rather than costs based on the Tariff - The court concluded that "the discretion to award a lump sum is not so restricted as with an award of solicitor and clients costs; tariff costs are usual and a lump sum is a de­parture from the usual; the discretion has been exercised where tariff costs would not produce a partial but substantial indemnifi­cation without artificially setting the 'amount involved'; the objective of a partial but substantial indemnification may or may not be sufficient reason to exercise the discretion; care must be taken to avoid employing fixed percentages or embracing the party's actual bill over a more general­ized assessment" - See paragraphs 54 to 69.

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - The plaintiff successfully sued two lawyers for defamation - The jury awarded $240,000 damages - The plaintiff's actual legal costs exceeded $200,000 - Awarding party and party costs on the basis of the tariff, even doubling the highest "amount involved" would result in a costs award of only $26,600 - The Nova Scotia Supreme Court departed from the usual rule respect­ing costs and awarded the plaintiff lump sum costs of $75,000 - The plaintiff was forced to engage in long and expensive proceedings to clear her name - The plain­tiff's legitimate interests at stake exceeded the merely monetary - The court stated that an award of $75,000 would constitute substantial indemnification, but still did not approach complete indemnity or ordinary, reasonable and necessary fees for an effort of the kind demanded in this case - See paragraphs 54 to 72.

Cases Noticed:

Hill v. Church of Scientology and Manning (1995), 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129 (S.C.C.), consd. [para. 9].

Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339, refd to. [para. 9].

Southam Inc. et al. v. Canada (Attorney General) (1997), 45 O.T.C. 52; 36 O.R.(3d) 721 (Gen. Div.), refd to. [para. 11].

Canadian Broadcasting Corp. v. Summer­side (1999), 173 Nfld. & P.E.I.R. 56; 530 A.P.R. 56 (P.E.I.T.D.), refd to. [para. 11].

Boyachyk v. Dukes, [1982] 5 W.W.R. 82; 37 A.R. 199 (Q.B.), refd to. [para. 12].

Rajkhowa v. Watson et al. (1998), 167 N.S.R.(2d) 108; 502 A.P.R. 108 (S.C.), refd to. [para. 12].

Sussman v. Eales et al. (1985), 33 C.C.L.T. 156 (Ont. Gen. Div.), affd. (1986), 25 C.P.C. 7 (C.A.), refd to. [para. 12].

Keung v. Sheehan (2001), 193 N.S.R.(2d) 237; 602 A.P.R. 237 (S.C.), refd to. [para. 12].

Parson v. Windsor Star et al. (1989), 71 O.R.(2d) 5 (H.C.), refd to. [para. 18].

Adam v. Ward, [1917] A.C. 309 (H.L.), refd to. [para. 20].

Halls v. Mitchell, [1928] S.C.R. 125, refd to. [para. 20].

Jones v. Bennett, [1969] S.C.R. 277, refd to. [para. 20].

Crandall v. Atlantic School of Theology et al. (1993), 120 N.S.R.(2d) 219; 332 A.P.R. 219 (S.C.), refd to. [para. 20].

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. [para. 20].

Sapiro v. Leader Publishing Co., [1926] 2 W.W.R. 268 (Sask. C.A.), refd to. [para. 20].

London Association for Protection of Trade v. Greenlands Ltd., [1916] 2 A.C. 15, refd to. [para. 20].

Reynolds v. Times Newspapers Ltd. et al. (1999), 250 N.R. 1 (H.L.), refd to. [para. 21].

New York Times Co. v. Sullivan (1964), 376 U.S. 254 (S.C.), refd to. [para. 22].

Douglas v. Tucker, [1952] 1 S.C.R. 275, refd to. [para. 24].

Stopforth v. Goyer (1979), 97 D.L.R.(3d) 369 (Ont. C.A.), refd to. [para. 25].

Camporese v. Parton (1983), 150 D.L.R.(3d) 208 (B.C.S.C.), refd to. [para. 25].

Parlett v. Robinson (1986), 30 D.L.R.(4th) 247 (B.C.C.A.), refd to. [para. 25].

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. 25].

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. 25].

Silva v. Toronto Star Newspapers Ltd. et al. (1998), 167 D.L.R.(4th) 554 (Ont. Gen. Div.), refd to. [para. 25].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 26].

Hiltz and Seamone Co. v. Nova Scotia (Attorney General) et al. (1997), 164 N.S.R.(2d) 161; 491 A.P.R. 161 (S.C.), varied (1999), 173 N.S.R.(2d) 341; 527 A.P.R. 341 (C.A.), refd to. [para. 35].

Davies & Davies Ltd. v. Knott, [1979] 2 S.C.R. 686; 27 N.R. 181, refd to. [para. 35].

Botiuk v. Bardyn et al., [1995] 3 S.C.R. 3; 186 N.R. 1; 85 O.A.C. 81, refd to. [para. 36].

Horrocks v. Lowe, [1975] A.C. 135 (H.L.), refd to. [para. 36].

Turner v. M-G-M Pictures Ltd., [1950] 1 All E.R. 449 (H.L.), refd to. [para. 38].

Ray v. Corbett (1883), 16 N.S.E. 407 (C.A.), refd to. [para. 39].

Bush v. Air Canada (1992), 109 N.S.R.(2d) 91; 297 A.P.R. 91 (C.A.), refd to. [para. 45].

Campbell v. Jones et al. (1998), 168 N.S.R.(2d) 1; 595 A.P.R. 1 (S.C.), refd to. [para. 49].

Matheson (D.W.) & Sons Contracting Ltd. v. Canada (Attorney General) (2000), 175 N.S.R.(2d) 201; 534 A.P.R. 201 (C.A.), refd to. [para. 51].

Matheson (D.W.) & Sons Contracting Ltd. v. Canada (Attorney General) (2000), 179 N.S.R.(2d) 260; 553 A.P.R. 260 (S.C.), refd to. [para. 54].

Founders Square Ltd. v. Nova Scotia (At­torney General) (2000), 186 N.S.R.(2d) 189; 581 A.P.R. 189 (S.C.), refd to. [para. 54].

Pickford & Black Ltd. v. Canadian Gen­eral Insurance Co. (1974), 10 N.S.R.(2d) 245; 2 A.P.R. 245 (C.A.), refd to. [para. 55].

Stanhope Estate v. Nova Scotia (Attorney General) (1996), 152 N.S.R.(2d) 289; 442 A.P.R. 289 (S.C.), refd to. [para. 55].

Hines v. Registrar of Motor Vehicles (N.S.) (1990), 105 N.S.R.(2d) 240; 284 A.P.R. 240 (T.D.), refd to. [para. 56].

Wournell (P.A.) Contracting Ltd. et al. v. Allen (1980), 37 N.S.R.(2d) 125; 67 A.P.R. 125 (T.D.), refd to. [para. 56].

Landymore v. Hardy (1992), 112 N.S.R.(2d) 410; 307 A.P.R. 410 (T.D.), refd to. [para. 57].

Armstrong v. Baker (1992), 113 N.S.R.(2d) 420; 309 A.P.R. 420 (T.D.), refd to. [para. 58].

Mathers v. Mathers (1992), 113 N.S.R.(2d) 284; 309 A.P.R. 284 (T.D.), revd. (1993), 123 N.S.R.(2d) 14; 340 A.P.R. 14 (C.A.), refd to. [para. 59].

McManus v. Nova Scotia (Attorney Gen­eral) (1995), 147 N.S.R.(2d) 318; 426 A.P.R. 318 (T.D.), refd to. [para. 60].

Conrad v. Snair et al. (1996), 150 N.S.R.(2d) 214; 436 A.P.R. 214 (C.A.), refd to. [para. 61].

1874000 N.S. Ltd. v. Adams (1996), 148 N.S.R.(2d) 1; 429 A.P.R. 1 (T.D.), varied (1997), 159 N.S.R.(2d) 260; 468 A.P.R. 260 (C.A.), refd to. [para. 62].

Williamson v. Williamson, [1998] N.S.J. No. 498 (C.A.), refd to. [para. 63].

Keddy v. Western Regional Health Board (N.S.), [1999] CarswellNS 381 (S.C.), refd to. [para. 64].

Cashen v. Donovan (1999), 174 N.S.R.(2d) 320; 532 A.P.R. 320 (S.C.), refd to. [para. 65].

Balders Estate v. Registrar of Probate for Halifax (County) (1999), 181 N.S.R.(2d) 201; 560 A.P.R. 201 (S.C.), refd to. [para. 66].

Gilfoy et al. v. Kelloway et al. (2000), 184 N.S.R.(2d) 226; 573 A.P.R. 226 (S.C.), refd to. [para. 67].

Statutes Noticed:

Police Act, R.S.N.S. 1989, c. 348, sect. 25(3) [para. 16].

Authors and Works Noticed:

Canadian Bar Association, Code of Pro­fessional Conduct (1974), p. 48 [para. 30].

Gatley, Libel and Slander (8th Ed. 1981), p. 252 [para. 10].

Gatley, Libel and Slander (9th Ed. 1998), paras. 14.1 [para. 20]; 16.1 [para. 35].

Nova Scotia Barristers' Society, Legal Ethics and Professional Conduct, A Handbook for Lawyers in Nova Scotia (1990), pp. 93, 94 [para. 30].

Counsel:

George W. MacDonald, Q.C., Hugh H. Wright and John Rice (articled clerk), for the plaintiff;

William L. Ryan, Q.C., Nancy G. Rubin and Leah Hutt, for the defendant, Burnley A. Jones;

S. Bruce Outhouse, Q.C., Lester Jesudason and Kristine Anderson (articled clerk), for the defendant, Anne S. Derrick, Q.C.

This matter was heard between April 3 and May 10, 2001, at Halifax, N.S., before Moir, J., of the Nova Scotia Supreme Court, who delivered the following judgment on August 30, 2001.