Cusson v. Quan et al., (2009) 397 N.R. 94 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 17, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 397 N.R. 94 (SCC);2009 SCC 62

Cusson v. Quan (2009), 397 N.R. 94 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.R. TBEd. DE.023

Douglas Quan, Kelly Egan, Don Campbell, Ottawa Citizen, Ottawa Citizen Group Inc. and Southam Publications (A CanWest Company) (appellants) v. Danno Cusson (respondent) and Globe and Mail, Toronto Star Newspapers Limited, Canadian Broadcasting Corporation, Canadian Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers' Association, RTNDA Canada/Association of Electronic Journalists, Canadian Publishers' Council, Magazines Canada, Canadian Association of Journalists, Canadian Journalists for Free Expression, Writers' Union of Canada, Professional Writers Association of Canada, Book and Periodical Council, PEN Canada, Peter Grant and Grant Forest Products Inc. (intervenors)

(32420; 2009 SCC 62; 2009 CSC 62)

Indexed As: Cusson v. Quan et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

December 22, 2009.

Summary:

The plaintiff was an Ontario Provincial Police (OPP) constable who, on his own initiative, went to New York City to participate in the search and rescue operations immediately following the September 11, 2001 attack on the World Trade Center. The OPP was publicly assailed for ordering the plaintiff to return to his duties in Ottawa. The plaintiff gave a number of media interviews and was portrayed as a hero for his rescue efforts. The defendants, the Ottawa Citizen, the Ottawa Citizen Group Inc. and Southam Publications (A CanWest Company) (collectively, the Citizen), published three articles casting the plaintiff and his rescue activities in a negative light. Those articles suggested that the plaintiff had misrepresented himself to the New York police as being a member of the RCMP; that he might have compromised rescue operations by misrepresenting himself and his dog as being properly trained for K-9 rescue efforts; that he had been asked to leave Ground Zero by the New York police; and that he faced police disciplinary charges for his conduct. The plaintiff brought a defamation action against the Citizen, the authors of the Citizen articles, Quan, Egan and Campbell (the Citizen defendants), as well as the plaintiff's superior officer, OPP Staff Sergeant Barager, the source for some of the information in the articles.

The Ontario Superior Court ruled that all three articles were of public interest but that as there was no "compelling, moral or social duty" to publish the Quan and Egan articles, those articles did not attract qualified privilege. However, the trial judge ruled that the Campbell article regarding the prospective disciplinary charges was protected by qualified privilege and the claim based on that article was dismissed. The jury found that the defendants had established the truth of some but not all the defamatory statements contained in the articles and awarded the plaintiff $100,000 in general damages against the Citizen defendants and $25,000 against the defendant Barager. The jury found that there was no actual malice on the part of any of the defendants and rejected the claims for special, aggravated and punitive damages. The defendants appealed, raising two issues: "1) Did the trial judge err by requiring the [defendants] to establish a compelling moral or social duty to publish and thereby err by rejecting the defence of qualified privilege in relation to the Quan and Egan articles?" and "2) Is there a public interest defence of responsible journalism available to the [defendants]?"

The Ontario Court of Appeal, in a decision reported at 231 O.A.C. 277, dismissed the appeal. While the public interest responsible journalism defence should be recognized as part of the Ontario law, the defendants were not entitled to the benefit of that defence because it was not litigated at trial. The defendants appealed.

The Supreme Court of Canada allowed the appeal and ordered a new trial.

Libel and Slander - Topic 2801

Defences - General - Responsible communication on matters of public interest - The plaintiff was an Ontario Provincial Police (OPP) constable who, on his own initiative, went to New York City to participate in the search and rescue operations immediately following the September 11, 2001 attack on the World Trade Center - The OPP was publicly assailed for ordering the plaintiff to return to his duties in Ottawa - The defendants, the Ottawa Citizen, the Ottawa Citizen Group Inc. and Southam Publications (a CanWest Company) (the Citizen), published three articles casting the plaintiff and his rescue activities in a negative light - The plaintiff brought a defamation action - The jury found that the defendants had established the truth of some but not all the defamatory statements contained in the articles and awarded the plaintiff damages - The defendants appealed, raising the defence of public interest responsible journalism developed by the English cases Reynolds v. Times Newspapers Ltd. (2001) and Jameel v. Wall Street Journal (2007) - The Ontario Court of Appeal dismissed the appeal - While the public interest responsible journalism defence should be recognized as part of the Ontario law, the defendants were not entitled to the benefit of that defence because it was not litigated at trial - The defendants appealed - The Supreme Court of Canada allowed the appeal and ordered a new trial - The public interest test was clearly met - The Canadian public had a vital interest in knowing about the professional misdeeds of those who were entrusted by the state with protecting public safety - That being the case, the defendants' liability hinged on whether they were diligent in trying to verify the allegations prior to publication - The issue on appeal, responsible journalism, did not raise entirely new factual matters without any basis in the evidence - The arguments on qualified privilege and responsible journalism were both directed toward the same fundamental question - In Ontario, a court hearing an appeal of a civil matter could only order a new trial if "some substantial wrong or miscarriage of justice had occurred" - The court held that the test had been met - The plaintiff would suffer no undue prejudice from a new trial other than costs - The defendants would be seriously disadvantaged by being deprived of the opportunity to avail themselves of the responsible communication defence which their appeal was responsible for developing - If it turned out that the defence was found to apply to the articles in question, such a deprivation would amount to an injustice.

Practice - Topic 9224

Appeals - New trials - Grounds - General - [See Libel and Slander - Topic 2801 ].

Cases Noticed:

Grant et al. v. Torstar et al. (2009), 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, appld. [paras. 1, 52].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 18].

Reynolds v. Times Newspapers Ltd. et al., [1999] 4 All E.R. 609; 250 N.R. 1 (H.L.), refd to. [para. 25].

Jameel v. Wall Street Journal Europe Sprl, [2007] 1 A.C. 359; 362 N.R. 314; [2006] UKHL 44, refd to. [para. 25].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 201 D.L.R.(4th) 193; 2001 SCC 44, refd to. [para. 26].

Lamb v. Kincaid (1907), 38 S.C.R. 516, refd to. [para. 36].

R. v. Warsing (K.L.), [1998] 3 S.C.R. 579; 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214, refd to. [para. 36].

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (No. 2), [2002] 1 S.C.R. 678; 283 N.R. 233; 299 A.R. 201; 266 W.A.C. 201; 2002 SCC 19, refd to. [para. 36].

Wasauksing First Nation et al. v. Wasausink Lands Inc. et al. (2004), 184 O.A.C. 84 (C.A.), refd to. [para. 37].

Pereira v. Hamilton Township Farmers' Mutual Fire Insurance Co. - see 1018202 Ontario Ltd. v. Hamilton Township Farmers' Mutual Fire Insurance Co.

1018202 Ontario Ltd. v. Hamilton Township Farmers' Mutual Fire Insurance Co. (2006), 209 O.A.C. 127; 267 D.L.R.(4th) 690 (C.A.), refd to. [para. 43].

Loutchansky v. Times Newspapers Ltd., [2001] EWCA Civ. 1805; [2002] 1 All E.R. 652 (C.A.), refd to. [para. 47].

Counsel:

Richard G. Dearden and Wendy J. Wagner, for the appellants;

Ronald F. Caza, Jeff G. Saikaley and Mark C. Power, for the respondent;

Peter M. Jacobsen and Adrienne Lee, for the intervenor, the Globe and Mail;

Paul B. Schabas, Iris Fischer and Erin Hoult, for the intervenor, the Toronto Star Newspapers Limited;

Daniel J. Henry, for the intervenor, the Canadian Broadcasting Corporation;

Patricia D.S. Jackson, Andrew E. Bernstein and Jennifer A. Conroy, for the intervenor, the Canadian Civil Liberties Association;

Brian MacLeod Rogers and Blair Mackenzie, for the intervenors, the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers' Association, RTNDA Canada/Association of Electronic Journalists, the Canadian Publishers' Council, Magazines Canada, the Canadian Association of Journalists, the Canadian Journalists for Free Expression, the Writers' Union of Canada, the Professional Writers Association of Canada, the Book and Periodical Council, and PEN Canada;

Peter A. Downard, Catherine M. Wiley and Dawn K. Robertson, for the intervenors, Peter Grant and Grant Forest Products Inc.

Solicitors of Record:

Gowling Lafleur Henderson, Ottawa, Ontario, for the appellants;

Heenan Blaikie, Ottawa, Ontario, for the respondent;

Bersenas Jacobsen Chouest Thomson Blackburn, Toronto, Ontario, for the intervenor, the Globe and Mail;

Blake, Cassels & Graydon, Toronto, Ontario, for the intervenor, the Toronto Star Newspapers Limited;

Canadian Broadcasting Corporation, Toronto, Ontario, for the intervenor, the Canadian Broadcasting Corporation;

Torys, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association;

Brian MacLeod Rogers, Toronto, Ontario, for the intervenors, the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers' Association, RTNDA Canada/Association of Electronic Journalists, the Canadian Publishers' Council, Magazines Canada, the Canadian Association of Journalists, the Canadian Journalists for Free Expression, the Writers' Union of Canada, the Professional Writers Association of Canada, the Book and Periodical Council, and PEN Canada;

Fasken Martineau DuMoulin, Toronto, Ontario, for the intervenors, Peter Grant and Grant Forest Products Inc.

This appeal was heard on February 17, 2009, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on December 22, 2009, and included the following opinions:

McLachlin, C.J.C. (Binnie, LeBel, Deschamps, Fish, Charron, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 51;

Abella, J., concurring - see paragraph 52.