Grant et al. v. Torstar Corp. et al., (2009) 397 N.R. 1 (SCC)

JudgeMcLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
CourtSupreme Court (Canada)
Case DateApril 23, 2009
JurisdictionCanada (Federal)
Citations(2009), 397 N.R. 1 (SCC);2009 SCC 61

Grant v. Torstar Corp. (2009), 397 N.R. 1 (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.022

Peter Grant and Grant Forest Products Inc. (appellants/respondents on cross-appeal) v. Torstar Corporation, Toronto Star Newspapers Limited, Bill Schiller, John Honderich and Mary Deanne Shears (respondents/appellants on cross-appeal) and Ottawa Citizen, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers' Association, RTNDA Canada/Association of Electronic Journalists, 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, Canadian Broadcasting Corporation, Canadian Civil Liberties Association and Danno Cusson (intervenors)

(32932; 2009 SCC 61; 2009 CSC 61)

Indexed As: Grant et al. v. Torstar Corp. 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 personal plaintiff, Grant, a prominent citizen and business man in northern Ontario, sought to acquire more land to expand his private three hole golf course adjacent to his home, including 10.5 hectares of Crown land. The project also required certain government approvals, including environmental approvals. On the date of a public meeting respecting the proposed expansion, a newspaper, the Toronto Star, published a front page article in its Saturday edition, which included the statement by a cottage owner in the area, Clark, that "[e]veryone thinks it's a done deal because of Grant's influence - but most of all his Mike Harris ties." Grant and his company (the plaintiffs) sued the newspaper, the writer of the article, other employees and Clark for libel. The plaintiffs settled with Clark before trial. At trial, the newspaper raised the traditional defence of qualified privilege and the defence of public interest responsible journalism. The trial judge specifically rejected these legal defences and sent the case to the jury. The jury found the newspaper liable and awarded damages totalling $1,475,000. The newspaper appealed, arguing that the trial judge erred by failing to properly address and apply the defence of responsible journalism and the judge erred in his jury charge by: (i) failing to properly charge on fair comment; (ii) making errors in his charge on how to determine the meaning of the impugned words; (iii) making errors in his charge on the tests for justification, malice and damages; and (iv) failing to fairly summarize the evidence and to relate the evidence to the legal issues.

The Ontario Court of Appeal, in a decision reported at 243 O.A.C. 120, allowed the appeal, set aside the jury verdict and ordered a new trial. The court held that the trial judge erred in how he dealt with the defence of public interest responsible journalism and made errors in the jury charge, particularly in the area of fair comment. The plaintiffs appealed, seeking to reinstate the jury verdict. The defendants cross-appealed, asking the court to apply the new defence and dismiss the action. In the alternative, they asked the court to dismiss the action on the basis of fair comment.

The Supreme Court of Canada dismissed the appeal and cross-appeal.

Civil Rights - Topic 1803

Freedom of speech or expression - General principles - Freedom of expression - Scope of - [See first Libel and Slander - Topic 3 ].

Civil Rights - Topic 1843.1

Freedom of speech or expression - Limitations on - Defamation - [See all Libel and Slander - Topic 3 ].

Libel and Slander - Topic 3

General - Defamation v. Charter - The plaintiffs sued the press related defendants for defamation - The defendants asserted that the defences available to public communicators, such as the press, in reporting matters of fact should be broadened - The first argument was grounded in principle - The defendants asserted that the existing law was inconsistent with the principle of freedom of expression as guaranteed by s. 2(b) of the Charter - The Supreme Court of Canada stated that "The guarantee of free expression in s. 2(b) of the Charter has three core rationales, or purposes: (1) democratic discourse; (2) truth-finding; and (3) self-fulfillment ... First and foremost, free expression is essential to the proper functioning of democratic governance. ... Second, the free exchange of ideas is an 'essential precondition of the search for truth'. ... Third, free expression has intrinsic value as an aspect of self-realization for both speakers and listeners." - The court concluded that "media reporting on matters of public interest engages the first and second rationales of the freedom of expression guarantee in the Charter. It is simply beyond debate that the limited defences available to press-related defendants may have the effect of inhibiting political discourse and debate on matters of public importance, and impeding the cut and thrust of discussion necessary to discovery of the truth" - See paragraphs 41 to 57.

Libel and Slander - Topic 3

General - Defamation v. Charter - The plaintiffs sued the press related defendants for defamation - The defendants asserted that the defences available to public communicators, such as the press, in reporting matters of fact should be broadened - The first argument was grounded in principle - The defendants asserted that the existing law was inconsistent with the principle of freedom of expression as guaranteed by s. 2(b) of the Charter - The plaintiffs supported the competing value: protection of reputation - The plaintiffs submitted that a defence based on the conduct of the defendants devalued the plaintiff's ability to vindicate reputation - A plaintiff's concern, it was said, was with the falsity of the libel, not the responsibility of the journalistic practices that led to its publication - To the extent that a revised defence shifted the focus of the litigation from the truth or falsity of the defamatory statements to the diligence of the defendant in verifying them, the plaintiff's very reason for bringing the suit was obscured - The Supreme Court of Canada rejected the submission - A balanced approach to libel law properly reflected both the interests of the plaintiff and the defendant - The law had to take due account of the damage to the plaintiff's reputation - But this did not preclude consideration of whether the defendant acted responsibly, nor of the social value to a free society of debate on matters of public interest - The court stated that "[a] defence based on responsible conduct reflects the social concern that the media should be held accountable through the law of defamation. ... People in public life are entitled to expect that the media and other reporters will act responsibly in protecting them from false accusations and innuendo. They are not, however, entitled to demand perfection and the inevitable silencing of critical comment that a standard of perfection would impose" - See paragraphs 60 and 62.

Libel and Slander - Topic 3

General - Defamation v. Charter - The plaintiffs sued the press related defendants for defamation - The defendants asserted that the defences available to public communicators, such as the press, in reporting matters of fact should be broadened - The first argument was grounded in principle - The defendants asserted that the existing law was inconsistent with the principle of freedom of expression as guaranteed by s. 2(b) of the Charter - The plaintiffs supported the competing value: protection of reputation - The plaintiffs submitted that a defence based on the conduct of the defendant may lead to costly and lengthy litigation over questions of journalistic practice about which claimants could have no advance knowledge - The Supreme Court of Canada rejected the submission - The objection went not so much to principle as to the particular test and procedures adopted - Whatever defence was accepted, it had to be workable and fair to both plaintiff and defendant - Procedural objections, however, did not negate the conclusion that the traditional test failed to protect reliable statements that were connected to the democratic discourse and truth-finding rationales for freedom of expression - See paragraphs 63 and 64.

Libel and Slander - Topic 3

General - Defamation v. Charter - The plaintiffs sued the press related defendants for defamation - The defendants asserted that the defences available to public communicators, such as the press, in reporting matters of fact should be broadened - The first argument was grounded in principle - The defendants asserted that the existing law was inconsistent with the principle of freedom of expression as guaranteed by s. 2(b) of the Charter - The plaintiffs supported the competing value: protection of reputation - The Supreme Court of Canada stated that "the current law with respect to statements that are reliable and important to public debate does not give adequate weight to the constitutional value of free expression. While the law must protect reputation, the level of protection currently accorded by the law - in effect a regime of strict liability - is not justifiable. The law of defamation currently accords no protection for statements on matters of public interest published to the world at large if they cannot, for whatever reason, be proven to be true. But such communications advance both free expression rationales mentioned above - democratic discourse and truth-finding - and therefore require some protection within the law of defamation. When proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public's interest to know" - See paragraph 65.

Libel and Slander - Topic 2801

Defences - General - Responsible communication on matters of public interest - [See all Libel and Slander - Topic 3 ].

Libel and Slander - Topic 2801

Defences - General - Responsible communication on matters of public interest - The Supreme Court of Canada held that the law of defamation should be modified to provide greater protection for communications on matters of public interest - The court stated that "the proposed change to the law should be viewed as a new defence, leaving the traditional defence of qualified privilege intact" and that "it is more accurate to refer to the new defence as responsible communication on matters of public interest" - See paragraphs 88 to 97.

Libel and Slander - Topic 2801

Defences - General - Responsible communication on matters of public interest - The Supreme Court of Canada held that the law of defamation should be modified to provide greater protection for communications on matters of public interest - The court stated that "[t]he defence of public interest responsible communication is assessed with reference to the broad thrust of the publication in question. It will apply where: A. The publication is on a matter of public interest and B. The publisher was diligent in trying to verify the allegation, having regard to: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff's side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement's public interest lay in the fact that it was made rather than its truth ('reportage'); and (h) any other relevant circumstances." - The factors served as non-exhaustive guides - All matters relevant to whether the defendant communicated responsibly could be considered - Not all factors were of equal value in assessing responsibility in any given case - If the defamatory statement was capable of conveying more than one meaning, the jury should take into account the defendant's intended meaning, if reasonable, in determining whether the defence of responsible communication had been established - Similarly, the defence of responsible communication obviated the need for a separate inquiry into malice - A defendant who had acted with malice in publishing defamatory allegations had by definition not acted responsibly - See paragraphs 98 to 126.

Libel and Slander - Topic 2801

Defences - General - Responsible communication on matters of public interest - The Supreme Court of Canada held that the law of defamation should be modified to provide greater protection for communications on matters of public interest - To be protected by the defence of responsible communication, the publication had to be on a matter of public interest - The determination of whether a statement related to a matter of public interest focussed on the substance of the publication itself and not the "occasion" - In determining whether a publication was on a matter of public interest, the judge had to consider the subject matter of the publication as a whole - The defamatory statement should not be scrutinized in isolation - The public interest was not synonymous with what interested the public - To be of public interest, the subject matter "must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached" - See paragraphs 99 to 109.

Libel and Slander - Topic 2801

Defences - General - Responsible communication on matters of public interest - The Supreme Court of Canada held that the law of defamation should be modified to provide greater protection for communications on matters of public interest - The defence of public interest responsible communication applied where: A. The publication was on a matter of public interest and B. The publisher was diligent in trying to verify the allegation, having regard to, inter alia, the seriousness of the allegation - The court stated that "[t]he logic of proportionality dictates that the degree of diligence required in verifying the allegation should increase in proportion to the seriousness of its potential effects on the person defamed. This factor recognizes that not all defamatory imputations carry equal weight. The defamatory 'sting' of a statement can range from a passing irritant to a blow that devastates the target's reputation and career. The apprehended harm to the plaintiff's dignity and reputation increases in relation to the seriousness of the defamatory sting. The degree to which the defamatory communication intrudes upon the plaintiff's privacy is one way in which the seriousness of the sting may be measured. Publication of the kinds of allegations traditionally considered the most serious - for example, corruption or other criminality on the part of a public official - demand more thorough efforts at verification than will suggestions of lesser mischief. So too will those which impinge substantially on the plaintiff's reasonable expectation of privacy" - See paragraph 111.

Libel and Slander - Topic 2801

Defences - General - Responsible communication on matters of public interest - The Supreme Court of Canada held that the law of defamation should be modified to provide greater protection for communications on matters of public interest - The defence of public interest responsible communication applied where: A. The publication was on a matter of public interest and B. The publisher was diligent in trying to verify the allegation, having regard to, inter alia, the public importance of the matter - The court stated that "[i]nherent in the logic of proportionality is the degree of the public importance of the communication's subject matter. The subject matter will, however, already have been deemed by the trial judge to be a matter of public interest. However, not all matters of public interest are of equal importance. Communications on grave matters of national security, for example, invoke different concerns from those on the prosaic business of everyday politics. What constitutes reasonable diligence with respect to one may fall short with respect to the other. Where the public importance in a subject matter is especially high, the jury may conclude that this factor tends to show that publication was responsible in the circumstances. In many cases, the public importance of the matter may be inseparable from its urgency." - See paragraph 112.

Libel and Slander - Topic 2801

Defences - General - Responsible communication on matters of public interest - The Supreme Court of Canada held that the law of defamation should be modified to provide greater protection for communications on matters of public interest - The defence of public interest responsible communication applied where: A. The publication was on a matter of public interest and B. The publisher was diligent in trying to verify the allegation, having regard to, inter alia, the urgency of the matter - The court stated that "[t]he legal requirement to verify accuracy should not unduly hamstring the timely reporting of important news. But nor should a journalist's (or blogger's) desire to get a 'scoop' provide an excuse for irresponsible reporting of defamatory allegations. The question is whether the public's need to know required the defendant to publish when it did. As with the other factors, this is considered in light of what the defendant knew or ought to have known at the time of publication. If a reasonable delay could have assisted the defendant in finding out the truth and correcting any defamatory falsity without compromising the story's timeliness, this factor will weigh in the plaintiff's favour." - See paragraph 113.

Libel and Slander - Topic 2801

Defences - General - Responsible communication on matters of public interest - The Supreme Court of Canada held that the law of defamation should be modified to provide greater protection for communications on matters of public interest - The defence of public interest responsible communication applied where: A. The publication was on a matter of public interest and B. The publisher was diligent in trying to verify the allegation, having regard to, inter alia, the status and reliability of the source - The court stated that "[s]ome sources of information are more worthy of belief than others. The less trustworthy the source, the greater the need to use other sources to verify the allegations. This applies as much to documentary sources as to people ... Consistent with the logic of the repetition rule, the fact that someone has already published a defamatory statement does not give another person licence to repeat it. ... this principle is especially vital when defamatory statements can be reproduced electronically with the speed of a few keystrokes. At the same time, the fact that the defendant's source had an axe to grind does not necessarily deprive the defendant of protection, provided other reasonable steps were taken. It may be responsible to rely on confidential sources, depending on the circumstances; a defendant may properly be unwilling or unable to reveal a source in order to advance the defence. On the other hand, it is not difficult to see how publishing slurs from unidentified 'sources' could, depending on the circumstances, be irresponsible." - See paragraphs 114 and 115.

Libel and Slander - Topic 2801

Defences - General - Responsible communication on matters of public interest - The Supreme Court of Canada held that the law of defamation should be modified to provide greater protection for communications on matters of public interest - The defence of public interest responsible communication applied where: A. The publication was on a matter of public interest and B. The publisher was diligent in trying to verify the allegation, having regard to, inter alia, whether the plaintiff's side of the story was sought and accurately reported - The court stated that "[i]t has been said that this is 'perhaps the core Reynolds factor' [Reynolds v. Times Newspapers Ltd. (H.L. 1999)] ...because it speaks to the essential sense of fairness the defence is intended to promote, as well as thoroughness. In most cases, it is inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond ... Failure to do so also heightens the risk of inaccuracy, since the target of the allegations may well be able to offer relevant information beyond a bare denial. The importance of this factor varies with the degree to which fulfilling its dictates would actually have bolstered the fairness and accuracy of the report." - See paragraphs 116 and 117.

Libel and Slander - Topic 2801

Defences - General - Responsible communication on matters of public interest - The Supreme Court of Canada held that the law of defamation should be modified to provide greater protection for communications on matters of public interest - The defence of public interest responsible communication applied where: A. The publication was on a matter of public interest and B. The publisher was diligent in trying to verify the allegation, having regard to, inter alia, whether inclusion of the defamatory statement was justifiable - The court stated that "it is for the jury to determine whether inclusion of a defamatory statement was necessary to communicating on a matter of public interest. Its view of the need to include a particular statement may be taken into account in deciding whether the communicator acted responsibly. In applying this factor, the jury should take into account that the decision to include a particular statement may involve a variety of considerations and engage editorial choice, which should be granted generous scope." - See paragraph 118.

Libel and Slander - Topic 2801

Defences - General - Responsible communication on matters of public interest - The Supreme Court of Canada held that the law of defamation should be modified to provide greater protection for communications on matters of public interest - The defence of public interest responsible communication applied where: A. The publication was on a matter of public interest and B. The publisher was diligent in trying to verify the allegation, having regard to, inter alia, whether the defamatory statement's public interest lay in the fact that it was made rather than its truth ("reportage") - The court stated that "[t]he 'repetition rule' holds that repeating a libel has the same legal consequences as originating it. This rule reflects the law's concern that one should not be able to freely publish a scurrilous libel simply by purporting to attribute the allegation to someone else. The law will not protect a defendant who is 'willing to wound, and yet afraid to strike'. ... In sum, the repetition rule preserves the accountability of media and other reporting on matters of public interest. The 'bald retailing of libels' is not in the public interest. ... Maintaining the repetition rule is particularly important in the age of the internet, when defamatory material can spread from one website to another at great speed. However, the repetition rule does not apply to fairly reported statements whose public interest lies in the fact that they were made rather than in their truth or falsity. This exception to the repetition rule is known as reportage. If a dispute is itself a matter of public interest and the allegations are fairly reported, the publisher should incur no liability even if some of the statements made may be defamatory and untrue, provided: (1) the report attributes the statement to a person, preferably identified, thereby avoiding total unaccountability; (2) the report indicates, expressly or implicitly, that its truth has not been verified; (3) the report sets out both sides of the dispute fairly; and (4) the report provides the context in which the statements were made. ... Where the defendant claims that the impugned publication (in whole or in part) constitutes reportage, i.e. that the dominant public interest lies in reporting what was said in the context of a dispute, the judge should instruct the jury on the repetition rule and the reportage exception to the rule. If the jury is satisfied that the statements in question are reportage, it may conclude that publication was responsible, having regard to the four criteria set out above. As always, the ultimate question is whether publication was responsible in the circumstances." - See paragraphs 119 to 121.

Libel and Slander - Topic 2801

Defences - General - Responsible communication on matters of public interest - The personal plaintiff, Grant, a prominent citizen and business man in northern Ontario, sought to acquire more land to expand his private three hole golf course adjacent to his home, including 10.5 hectares of Crown land - The project also required certain government approvals - On the date of a public meeting respecting the proposed expansion, a newspaper, the Toronto Star, published a front page article in its Saturday edition, which included the statement by a cottage owner in the area, Clark, that "[e]veryone thinks it's a done deal because of Grant's influence - but most of all his Mike Harris ties." - Grant and his company (the plaintiffs) sued the newspaper for libel - The newspaper raised the traditional defence of qualified privilege and the defence of responsible journalism recently recognized in English law - The judge rejected these defences and sent the matter to the jury - The jury found the newspaper liable - The newspaper appealed, arguing that the trial judge erred by failing to properly address and apply the defence of responsible journalism - The Ontario Court of Appeal held that the trial judge erred by not considering public interest responsible journalism as a separate defence from the defence of qualified privilege - The Supreme Court of Canada agreed.

Libel and Slander - Topic 2861

Defences - Justification - General - The Supreme Court of Canada stated that "Where statements of fact are at issue, usually only two defences are available: the defence that the statement was substantially true (justification); and the defence that the statement was made in a protected context (privilege). ... To succeed on the defence of justification, a defendant must adduce evidence showing that the statement was substantially true. ... If the defence of justification fails, generally the only way a publisher can escape liability for an untrue defamatory statement of fact is by establishing that the statement was made on a privileged occasion. However, the defence of qualified privilege has seldom assisted media organizations. One reason is that qualified privilege has traditionally been grounded in special relationships characterized by a 'duty' to communicate the information and a reciprocal 'interest' in receiving it. The press communicates information not to identified individuals with whom it has a personal relationship, but to the public at large. Another reason is the conservative stance of early decisions, which struck a balance that preferred reputation over freedom of expression." - See paragraphs 32 to 34.

Libel and Slander - Topic 2921

Defences - Absolute privilege - General - The Supreme Court of Canada stated that "Both statements of opinion and statements of fact may attract the defence of privilege, depending on the occasion on which they were made. Some 'occasions', like Parliamentary and legal proceedings, are absolutely privileged. Others, like reference letters or credit reports, enjoy 'qualified' privilege, meaning that the privilege can be defeated by proof that the defendant acted with malice ... The defences of absolute and qualified privilege reflect the fact that 'common convenience and welfare of society' sometimes requires untrammeled communications" - See paragraph 30.

Libel and Slander - Topic 2981

Defences - Qualified privilege - General - [See Libel and Slander - Topic 2861 and Libel and Slander - Topic 2921 ].

Libel and Slander - Topic 3101

Defences - Fair comment - General - The Supreme Court of Canada stated that "statements of opinion, a category which includes any 'deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof'... may attract the defence of fair comment. ... a defendant claiming fair comment must satisfy the following test: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognizable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. [WIC Radio Ltd. v. Simpson (S.C.C. 2008)] expanded the fair comment defence by changing the traditional requirement that the opinion be one that a 'fair-minded' person could honestly hold, to a requirement that it be one that 'anyone could honestly have expressed' ... which allows for robust debate." - See paragraph 31.

Libel and Slander - Topic 3106

Defences - Fair comment - Elements of fair comment - General - [See Libel and Slander - Topic 3101 ].

Libel and Slander - Topic 3107

Defences - Fair comment - Elements of fair comment - Honest expression of opinion - The personal plaintiff, Grant, a prominent citizen and business man in northern Ontario, sought to acquire more land to expand his private three hole golf course adjacent to his home, including 10.5 hectares of Crown land - The project also required certain government approvals, including environmental approvals - On the date of a public meeting respecting the proposed expansion, a newspaper, the Toronto Star, published a front page article in its Saturday edition, which included the statement by a cottage owner in the area, Clark, that "[e]veryone thinks it's a done deal because of Grant's influence - but most of all his Mike Harris ties." - Grant and his company (the plaintiffs) sued the newspaper for libel - The trial judge left the defence of fair comment on a matter of public interest with the jury - The jury found the newspaper liable - The newspaper appealed, arguing that the trial judge erred in his jury charge by failing to properly charge on fair comment - The Ontario Court of Appeal allowed the appeal, set aside the jury verdict and ordered a new trial - The court held that the judge erred in his jury charge in formulating the honest belief component of the fair comment test (i.e., he repeated many times that when applying the test for fair comment, jury members were to consider what a "fair-minded" person would believe) - Further, the judge did not make it clear to the jury that malice could only defeat the defence of fair comment if malice was shown to be the dominant purpose of the defamatory article - The Supreme Court of Canada agreed - See paragraphs 137 to 139.

Libel and Slander - Topic 3116

Defences - Fair comment - Jury charge - [See Libel and Slander - Topic 3107 ].

Libel and Slander - Topic 5401

Evidence - General - The Supreme Court of Canada stated that "[a] plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed ... The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability. If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability" - See paragraphs 28 and 29.

Libel and Slander - Topic 5404

Evidence - General - Functions of judge and jury - The Supreme Court of Canada held that the law of defamation should be modified to provide greater protection for communications on matters of public interest - The defence of public interest responsible communication applied where: A. The publication was on a matter of public interest and B. The publisher was diligent in trying to verify the allegation - With respect to procedural issues, including the functions of the judge and jury, the court held that "[t]he judge decides whether the statement relates to a matter of public interest. If public interest is shown, the jury decides whether on the evidence the defence is established, having regard to all the relevant factors, including the justification for including defamatory statements in the article. As in any trial by judge and jury, the judge may, upon motion, rule out the defence on the basis that the facts as proved are incapable of supporting the inference of responsible communication. ... The defence of responsible communication does not require preliminary rulings from the jury on primary meaning, since it does not depend on the supposition of a single meaning. The jury should be instructed to assess the responsibility of the communication in light of the range of meanings the words are reasonably capable of bearing, including evidence as to the defendant's intended meaning." - See paragraphs 127 to 131.

Libel and Slander - Topic 5404

Evidence - General - Functions of judge and jury - The Supreme Court of Canada held that the law of defamation should be modified to provide greater protection for communications on matters of public interest - The defence of public interest responsible communication applied where: A. The publication was on a matter of public interest and B. The publisher was diligent in trying to verify the allegation - With respect to procedural issues, including the functions of the judge and jury, the court held that the judge decided whether the statement related to a matter of public interest - If public interest was shown, the jury decided whether on the evidence the defence was established, having regard to all the relevant factors, including the justification for including defamatory statements in the article - The plaintiffs argued against a central role for the jury - If a conduct-based defence was recognized, they asserted it should be for the judge alone to determine whether it lay and whether it was established on the facts - The court rejected the argument - First, restricting the role of the jury in this manner might run afoul of statutory rights accorded by the relevant legislation - Second, permitting the jury to have the ultimate say on whether or not the new defence applied, was consistent with the jury's role with respect to the defence of fair comment - Third, it was not unusual for juries to render verdicts where constitutionally protected interests were at stake - See paragraphs 132 to 135.

Libel and Slander - Topic 6021

Practice - Actions - General - [See Libel and Slander - Topic 5401 ].

Cases Noticed:

Cusson v. Quan et al. (2007), 231 O.A.C. 277; 2007 ONCA 771, revd. (2009), 397 N.R. 94; 258 O.A.C. 378; 2009 SCC 62, refd to. [para. 21].

WIC Radio Ltd. v. Simpson - see Simpson v. Mair et al.

Simpson v. Mair et al., [2008] 2 S.C.R. 420; 376 N.R. 80; 256 B.C.A.C. 1; 431 W.A.C. 1; 2008 SCC 40, refd to. [paras. 23, 143].

Horrocks v. Lowe, [1975] A.C. 135 (H.L.), refd to. [para. 30].

Toogood v. Spyring (1834), 1 C.M. & R. 181; 149 E.R. 1044 (Ex. Ct.), refd to. [para. 30].

Ross v. New Brunswick Teachers' Association et al. (2001), 238 N.B.R.(2d) 112; 617 A.P.R. 112; 201 D.L.R.(4th) 75; 2001 NBCA 62, refd to. [para. 31].

Douglas v. Tucker, [1952] 1 S.C.R. 275, refd to. [para. 34].

Globe and Mail Ltd. v. Boland, [1960] S.C.R. 203, refd to. [para. 34].

Banks v. Globe and Mail Ltd., [1961] S.C.R. 474, refd to. [para. 34].

Jones v. Bennett, [1969] S.C.R. 277, refd to. [para. 34].

Parlett v. Robinson (1986), 5 B.C.L.R.(2d) 26 (C.A.), refd to. [para. 35].

Grenier v. Southam Inc. et al., [1997] O.A.C. Uned. 295 (C.A.), refd to. [para. 36].

Leenen v. Canadian Broadcasting Corp. et al. (2000), 105 O.T.C. 91; 48 O.R.(3d) 656 (Sup. Ct.), affd. (2001), 147 O.A.C. 317; 54 O.R.(3d) 612 (C.A.), refd to. [para. 36].

Young v. Toronto Star Newspapers Ltd. et al., [2003] O.T.C. 1102; 66 O.R.(3d) 170 (Sup. Ct.), affd. (2005), 202 O.A.C. 19; 77 O.R.(3d) 680 (C.A.), refd to. [para. 36].

Reference Re Alberta Statutes, [1938] S.C.R. 100, refd to. [para. 42].

Saumur v. Quebec (City), [1953] 2 S.C.R. 299, refd to. [para. 42].

Switzman v. Elbling, [1957] S.C.R. 285, refd to. [para. 42].

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. [paras. 44, 143].

New York Times Co. v. Sullivan (1964), 376 U.S. 254 (Sup. Ct.), refd to. [para. 45].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125, refd to. [para. 46].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 47].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 49].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, refd to. [para. 51].

R. v. Lucas (J.D.) et al., [1998] 1 S.C.R. 439; 224 N.R. 161; 163 Sask.R. 161; 165 W.A.C. 161, refd to. [para. 58].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 59].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 59].

Ballina Shire Council v. Ringland (1994), 33 N.S.W.L.R. 680 (C.A.), refd to. [para. 62].

Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, refd to. [para. 67].

Lange v. Australian Broadcasting Corp. (1997), 145 A.L.R. 96 (H.C.), refd to. [para. 68].

Lange v. Atkinson, [1998] 3 N.Z.L.R. 424 (C.A.), refd to. [para. 68].

Lange v. Atkinson et al., [2000] 1 N.Z.L.R. 257; 250 N.R. 58 (P.C.), refd to. [para. 68].

Lange v. Atkinson, [2000] 3 N.Z.L.R. 385 (C.A.), refd to. [para. 68].

Du Plessis v. De Klerk, 1996 (3) S.A. 850 (C.C.), refd to. [para. 68].

National Media Ltd. v. Bogoshi, 1998 (4) S.A. 1196 (S.C.A.), refd to. [para. 68].

Reynolds v. Times Newpapers Ltd. et al., [1999] 4 All E.R. 609; 250 N.R. 1 (H.L.), consd. [para. 69].

Jameel v. Wall Street Journal Europe Sprl, [2007] 1 A.C. 359; 362 N.R. 314; [2006] UKHL 44, consd. [para. 72].

Seaga v. Harper, [2008] N.R. Uned. 56; [2008] 1 All E.R. 965; [2008] UKPC 9, refd to. [para. 73].

Charman v. Orion Publishing Group Ltd., [2007] EWCA Civ. 972; [2008] 1 All E.R. 750, refd to. [para. 76].

Theophanous v. Herald & Weekly Times Ltd. (1994), 124 A.L.R. 1 (H.C.), refd to. [para. 77].

N.M. v. Smith, [2007] ZACC 6; 2007 (5) S.A. 250 (C.C.), refd to. [para. 83].

Khumalo v. Holomisa, [2002] ZACC 12; 2002 (5) S.A. 401 (C.C.), refd to. [para. 83].

Mthembi-Mahanyele v. Mail & Guardian Ltd., [2004] ZASCA 67; 2004 (6) S.A. 329 (S.C.A.), refd to. [para. 83].

Loutchansky v. Times Newspapers Ltd., [2001] EWCA Civ. 1805; [2002] 1 All E.R. 652 (C.A.), refd to. [para. 91].

London Artists Ltd. v. Littler, [1969] 2 All E.R. 193 (C.A.), refd to. [para. 104].

Simpson v. Mair et al., [2004] B.C.T.C. 754; 31 B.C.L.R.(4th) 285; 2004 BCSC 754, refd to. [para. 105].

Miller v. Associated Newspapers Ltd., [2005] EWHC 557 (Q.B.), refd to. [para. 114].

Galloway v. Telegraph Group Ltd., [2004] EWHC 2786 (Q.B.), refd to. [para. 116].

"Truth" (N.Z.) Ltd. v. Holloway, [1960] 1 W.L.R. 997 (P.C.), refd to. [para. 119].

Al-Fagih v. H.H. Saudi Research & Marketing (U.K.) Ltd., [2001] EWCA Civ. 1634, refd to. [para. 120].

Prince Radu of Hohenzollern v. Houston, [2007] EWHC 2735 (Q.B.), refd to. [para. 120].

Roberts v. Gable, [2007] EWCA Civ. 721; [2008] 2 W.L.R. 129 (C.A.), refd to. [para. 120].

Bonnick v. Morris, [2003] 1 A.C. 300; [2002] UKPC 31, refd to. [para. 124].

Pizza Pizza Ltd. v. Toronto Star Newspapers Ltd. et al. (1998), 115 O.A.C. 338; 42 O.R.(3d) 36 (Div. Ct.), refd to. [para. 131].

Jameel v. Wall Street Journal Sprl, [2005] EWCA Civ. 74; [2005] 4 All E.R. 356 (C.A.), refd to. [paras. 134, 144].

Scott v. Fulton (2000), 137 B.C.A.C. 77; 223 W.A.C. 77; 73 B.C.L.R.(3d) 392; 2000 BCCA 124 (C.A.), refd to. [para. 137].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 143].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General) - see Société Radio-Canada v. Nouveau-Brunswick (Procureur général) et al.

Société Radio-Canada v. Nouveau-Brunswick (Procureur général) et al., [1991] 3 S.C.R. 459; 130 N.R. 362; 119 N.B.R.(2d) 271; 300 A.P.R. 271, refd to. [para. 143].

Australian Broadcasting Corp. v. Reading, [2004] NSWCA 411, refd to. [para. 144].

Authors and Works Noticed:

Anderson, David A., Is Libel Law Worth Reforming? (1991-1992), 140 U. Pa. L. Rev. 487, p. 540 [para. 144].

Beattie, Kate, New Life for the Reynolds "Public Interest Defence"? Jameel v. Wall Street Journal Europe, [2007] E.H.R.L.R. 81, generally [para. 74].

Boivin, Denis W., Accommodating Freedom of Expression and Reputation in the Common Law of Defamation (1997), 22 Queen's L.J. 229, p. 270 [para. 56].

Bonnington, Alistair J., Reynolds Rides Again (2006), 11 Comms. L. 147, generally [para. 71].

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed. 1994) (1999 Looseleaf Supp.) (2007 Looseleaf Update, Release 4), vol. 2, pp. 12-289, 13-405 [para. 144]; vol. 2, pp. 15-137, 15-138 [para. 105]; vol. 2, p. 16-136 [para. 144]; vol. 3, pp. 25-2, 25-3 [para. 28]; vol. 4, pp. 27-45 to 27-46, fn. 116 [para. 92].

Gatley, Clement, Libel and Slander (11th Ed. 2008), pp. 530 [para. 103]; 535 [para. 116]; 1241 [para. 144].

Hooper, David, The Importance of the Jameel Case (2007), 18(2) Ent. L. Rev. 62, p. 62 [para. 71].

Kenyon, Andrew T., Lange and Reynolds Qualified Privilege: Australian and English Defamation Law and Practice (2004), 28 Melb. U. L. Rev. 406, pp. 425 [para. 63]; 432 [para. 79]; 433 [para. 134].

New South Wales, Law Reform Commission, Report on Defamation, Report No. 75, c. 3.2 [para. 144].

Schneiderman, David, Freedom of Expression and the Charter (1991), p. 282 [para. 28].

Smolla, Rodney A., Balancing Freedom of Expression and Protection of Reputation Under Canada's Charter of Rights and Freedoms, in Schneiderman, David, Freedom of Expression and the Charter (1991), p. 282 [para. 28].

Weaver, Russell L., Kenyon, Andrew T., Partlett, David F., and Walker, Clive P., Defamation Law and Free Speech: Reynolds v. Times Newspapers and the English Media (2004), 37 Vand. J. Transnat'l L. 1255, pp. 1303 to 1307 [para. 71].

Counsel:

Peter A. Downard, Catherine M. Wiley and Dawn K. Robertson, for the appellants/respondents on cross-appeal;

Paul B. Schabas, Erin Hoult and Iris Fischer, for the respondents/appellants on cross-appeal;

Richard G. Dearden and Wendy J. Wagner, for the intervenor, the Ottawa Citizen;

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, 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;

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;

Ronald F. Caza and Jeff Saikaley, for the intervenor, Danno Cusson.

Solicitors of Record:

Fasken Martineau DuMoulin, Toronto, Ontario, for the appellants/respondents on cross-appeal;

Blake, Cassels & Graydon, Toronto, Ontario, for the respondents/appellants on cross-appeal;

Gowling Lafleur Henderson, Ottawa, Ontario, for the intervenor, the Ottawa Citizen;

Brian MacLeod Rogers, Toronto, Ontario, for the intervenors, the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers' Association, RTNDA Canada/Association of Electronic Journalists, 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;

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

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

Heenan Blaikie, Ottawa, Ontario, for the intervenor, Danno Cusson.

This appeal and cross-appeal were heard on April 23, 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 141;

Abella, J. - see paragraphs 142 to 146.

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