Cusson v. Quan,

• Jurisdiction: Ontario
• Judge: Weiler, Sharpe and Blair, JJ.A.
• Neutral Citation: 2007 ONCA 771
• Citation: (2007), 231 O.A.C. 277 (CA),2007 ONCA 771,87 OR (3d) 241,286 DLR (4th) 196,53 CCLT (3d) 122,[2007] CarswellOnt 7310,[2007] OJ No 4348 (QL),164 CRR (2d) 284,231 OAC 277,286 D.L.R. (4th) 196,(2007), 231 OAC 277 (CA),231 O.A.C. 277,[2007] O.J. No 4348 (QL),87 O.R. (3d) 241
• Date: 15 June 2007
• Court: Court of Appeal (Ontario)

Cusson v. Quan (2007), 231 O.A.C. 277 (CA)

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: [2007] O.A.C. TBEd. NO.063

Danno Cusson (plaintiff/respondent) v. Douglas Quan, Kelly Egan, Don Campbell, Ottawa Citizen, Ottawa Citizen Group Inc., Southam Publications (a Canwest Company) and Penny Barager (defendants/appellants)

(C45365; 2007 ONCA 771)

Indexed As: Cusson v. Quan et al.

Ontario Court of Appeal

Weiler, Sharpe and Blair, JJ.A.

November 13, 2007.

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) (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 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.

Libel and Slander - Topic 2801

Defences - General - Public interest responsible journalism - 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 - See paragraphs 145 to 150.

Libel and Slander - Topic 2801

Defences - General - Public interest responsible journalism - The Ontario Court of Appeal agreed with the courts in England, Australia, New Zealand, South Africa and the United States, and with the Canadian judges who had gradually expanded the defence of qualified privilege, that the inhibiting effect of traditional defamation law was incompatible with the climate of free and robust debate to which a democratic society aspired - The court concluded that the appropriate way to resolve the clear tension between the Supreme Court of Canada cases of the 50s, 60s and 70s and the more recent decisions favouring a more liberal availability of qualified privilege was to adopt, in its broad outline, the public interest responsible journalism defence developed by the English cases Reynolds v. Times Newspapers Ltd. (2001) and Jameel v. Wall Street Journal (2007) - See paragraph 139.

Libel and Slander - Topic 2801

Defences - General - Public interest responsible journalism - The Ontario Court of Appeal stated that "the public interest responsible journalism defence gives appropriate recognition and weight to the Charter values of freedom of expression and freedom of the media without unduly minimizing the value of protecting individual reputation. It represents an appropriate adjustment to the priority accorded by the common law to reputation over expression in keeping with the need to achieve, in accordance with Charter principles, 'a balance ...that fully respects the importance of both sets of rights' at issue" - See paragraph 140.

Libel and Slander - Topic 2801

Defences - General - Public interest responsible journalism - The Ontario Court of Appeal stated that "adopting [the public interest responsible journalism] defence shifts the focus of defamation law away from the truth and towards the conduct of the defendant. In my view, this is an acceptable price to pay for free and open discussion. It has long been recognized that the public interest in affording the individual a way to 'vindicate his reputation against calumny' has its limits and must be 'accommodated to the competing public interest in permitting men to communicate frankly and freely with one another' on certain matters" - See paragraph 142.

Libel and Slander - Topic 2801

Defences - General - Public interest responsible journalism - The Ontario Court of Appeal stated that "the [public interest responsible journalism] defence rests upon the broad principle that where a media defendant can show that it acted in accordance with the standards of responsible journalism in publishing a story that the public was entitled to hear, it has a defence even if it got some of its facts wrong. That standard of responsible journalism is objective and legal, to be determined by the court with reference to the broader public interest. ... The defence is plainly intended to shift the law of defamation away from its rigidly reputation-protection stance to freer and more open discussion on matters of public interest and should be interpreted accordingly" - See paragraph 143.

Libel and Slander - Topic 2801

Defences - General - Public interest responsible journalism - The Ontario Court of Appeal stated that "to avail itself of the public interest responsible journalism test a media defendant must show that it took reasonable steps in the circumstances to ensure that the story was fair and its contents were true and accurate. This is not too much to ask of the media. What constitutes reasonable steps will depend of course upon the circumstances of the particular case. In assessing whether the media has met this standard the court will consider the ten factors outlined by the House of Lords in [Reynolds v. Times Newspapers Ltd.] ... or such of them - or any other factors - as may be relevant in the circumstances. As Reynolds and subsequent authorities have noted, these factors are not a list of hurdles that media defendants must negotiate; rather, they are indicia of whether the media were truly acting in the public interest in the circumstances" - See paragraph 144.

Libel and Slander - Topic 2801

Defences - General - Public interest responsible journalism - The Ontario Court of Appeal held that 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) should be recognized as part of Ontario law - The following factors established in Reynolds were used to assess wether the defendant media had met the standard and was entitled to use of the defence: "1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject-matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing." - See paragraphs 89 and 144.

Cases Noticed:

Reynolds v. Times Newspapers Ltd. et al., [2001] 2 A.C. 127; 250 N.R. 1 (H.L.), refd to. [para. 31].

Jameel et al. v. Wall Street Journal Europe Sprl, [2007] 1 A.C. 359; 362 N.R. 314 (H.L.), refd to. [para. 31].

Cherneskey v. Armadale Publishers Ltd. and King, [1979] 1 S.C.R. 1067; 24 N.R. 271, refd to. [para. 36].

Slim v. Daily Telegraph Ltd., [1968] 1 All E.R. 497 (C.A.), refd to. [para. 36].

Adam v. Ward, [1917] A.C. 309 (H.L.), refd to. [para. 38].

Huntley v. Ward (1859), 6 C.B.N.S. 514, refd to. [para. 39].

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. 40].

London Association for Protection of Trade v. Greenlands Ltd., [1916] 2 A.C. 15 (H.L.), refd to. [para. 41].

Douglas v. Tucker, [1952] 1 S.C.R. 275, consd. [para. 49].

Duncombe v. Daniell (1838), 1 W.W. & H. 101, refd to. [para. 50].

Globe & Mail Ltd. v. Boland, [1960] S.C.R. 203, consd. [para. 51].

Banks v. Globe and Mail Ltd., [1961] S.C.R. 474, consd. [para. 54].

Jones v. Bennett, [1969] S.C.R. 277, consd. [para. 56].

Littleton v. Hamilton et al. (1974), 47 D.L.R.(3d) 663 (Ont. C.A.), leave to appeal refused, [1974] S.C.R. ix, consd. [para. 57].

Doyle v. Sparrow (1979), 27 O.R.(2d) 206 (C.A.), leave to appeal refused, [1980] 1 S.C.R. xii, refd to. [para. 58].

Stopforth v. Goyer (1979), 23 O.R.(2d) 696 (C.A.), consd. [para. 60].

Parlett v. Robinson (1986), 30 D.L.R.(4th) 247 (B.C.C.A.), leave to appeal refused, [1986] 2 S.C.R. viii; 74 N.R. 240, refd to. [para. 61].

Loos v. Robbins (1987), 55 Sask.R. 183; 37 D.L.R.(4th) 418 (C.A.), refd to. [para. 61].

Baumann v. Turner et al. (1993), 32 B.C.A.C. 9; 53 W.A.C. 9; 82 B.C.L.R.(2d) 362; 105 D.L.R.(4th) 37 (C.A.), refd to. [para. 61].

Grenier v. Southam Inc. et al., [1997] O.A.C. Uned. 295 (C.A.), refd to. [para. 62].

Leenen v. Canadian Broadcasting Corp. et al. (2000), 105 O.T.C. 91; 48 O.R.(3d) 656; 50 C.C.L.T.(2d) 213 (Sup. Ct.), affd. (2001), 147 O.A.C. 317; 54 O.R.(3d) 612; 6 C.C.L.T.(3d) 97 (C.A.), consd. [para. 63].

Young v. Toronto Star Newspapers Ltd. et al. (2003), 66 O.R.(3d) 170 (Sup. Ct.), affd (2005), 202 O.A.C. 19; 77 O.R.(3d) 680 (C.A.), refd to. [para. 66].

Silva v. Toronto Star Newspapers Ltd. (1998), 167 D.L.R.(4th) 554 (Gen. Div.), affd. (2002), 215 D.L.R.(4th) 77 (C.A.), refd to. [para. 67].

Lee v. Globe & Mail (2001), 6 C.P.C.(5th) 354 (Ont. Sup. Ct.), refd to. [para. 68].

Bennett Environmental Inc. v. Toronto Star Newspapers Ltd., [2004] O.J. No. 2456 (Sup. Ct.), refd to. [para. 69].

Campbell v. Jones et al. (2002), 209 N.S.R.(2d) 81; 656 A.P.R. 81; 220 D.L.R.(4th) 201, leave to appeal refused (2002), 320 N.R. 195; 221 N.S.R.(2d) 400; 697 A.P.R. 400 (S.C.C.), refd to. [para. 70].

New York Times Co. v. Sullivan (1964), 376 U.S. 254 (Sup. Ct.), refd to. [para. 73].

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. 74].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 74].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125, refd to. [para. 74].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 74].

Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339, refd to. [para. 78].

Loutchansky v. Times Newspapers Ltd., [2002] Q.B. 783; [2002] W.L.R. 640; [2002] 1 All E.R. 652 (C.A.), refd to. [para. 99].

Lange v. Australian Broadcasting Corp. (1997), 145 A.L.R. 96 (Aust. H.C.), refd to. [para. 102].

Theophanous v. Herald & Weekly Times Ltd. (1994), 124 A.L.R. 1 (Aust. H.C.), refd to. [para. 102].

Stephens v. West Australian Newspapers Ltd. (1994), 124 A.L.R. 80 (Aust. H.C.), refd to. [para. 102].

Lange v. Atkinson et al., [1997] 2 N.Z.L.R. 22 (N.Z.H.C.), refd to. [para. 110].

Lange v. Atkinson et al., [1998] 3 N.Z.L.R. 424 (N.Z.C.A.), refd to. [para. 110].

Lange v. Atkinson et al., [2000] 1 N.Z.L.R. 257; 250 N.R. 58 (P.C.), refd to. [para. 113].

Lange v. Atkinson, [2000] 3 N.Z.L.R. 385 (N.Z.C.A.), refd to. [para. 114].

National Media Ltd. v. Bogoshi, [1998] 4 S.A. 1196 (C.A.), refd to. [para. 116].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al., [2002] 1 S.C.R. 156; 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22; 2002 SCC 8, refd to. [para. 125].

R. v. Kopyto (1987), 24 O.A.C. 81; 62 O.R.(2d) 449 (C.A.), refd to. [para. 125].

Derbyshire County Council v. Times Newspapers Ltd. et al., [1993] 1 All E.R. 1011; 150 N.R. 69 (H.L.), refd to. [para. 127].

Bonnick v. Morris & Ors (Jamaica), [2002] U.K.P.C. 31 (P.C.), refd to. [para. 139].

Horrocks v. Lowe, [1975] A.C. 135; [1974] 1 All E.R. 662 (H.L.), refd to. [para. 142].

Wasauksing First Nation et al. v. Wasauksink Lands Inc. et al. (2004), 184 O.A.C. 84 (C.A.), refd to. [para. 149].

McNaught v. Toronto Transit Commission et al. (2005), 194 O.A.C. 73; 249 D.L.R.(4th) 334 (C.A.), leave to appeal refused (2005), 345 N.R. 395; 208 O.A.C. 400 (S.C.C.), refd to. [para. 149].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1, refd to. [para. 150].

Authors and Works Noticed:

Downard, Peter A., Libel (2003), p. 113 [para. 36].

McConchie, Roger D., and Potts, David A., Canadian Libel and Slander Actions (2004), pp. 337 [para. 36]; 370, 371 [para. 41]; 394 [para. 61]; 406, 407 [para. 45].

Counsel:

Richard G. Dearden and Andrew Kidd, for the appellants Douglas Quan, Kelly Egan, Don Campbell, Ottawa Citizen, Ottawa Citizen Group Inc., and Southam Publications (A CanWest Company);

Ronald F. Caza, Jeff Saikaley and Marie-France Chartrand, for the respondent Danno Cusson;

Peter Jacobsen, Brian Rogers and Adrienne Lee, for the interveners The Globe and Mail, the Canadian Newspaper Association, and Ad IDEM/Canadian Media Lawyers Association.

This appeal was heard on June 15, 2007, by Weiler, Sharpe and Blair, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Sharpe, J.A., on November 13, 2007.