Simpson v. Mair et al., (2008) 376 N.R. 80 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 27, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 376 N.R. 80 (SCC);2008 SCC 40;376 NR 80;[2008] 2 SCR 420;EYB 2008-135084;56 CCLT (3d) 1;66 CPR (4th) 121;JE 2008-1350;80 BCLR (4th) 1;293 DLR (4th) 513;[2008] RRA 515;256 BCAC 1;166 ACWS (3d) 792;[2008] SCJ No 41 (QL);175 CRR (2d) 145;[2008] 8 WWR 195

Simpson v. Mair (2008), 376 N.R. 80 (SCC)

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[French language version follows English language version]

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

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Temp. Cite: [2008] N.R. TBEd. JN.041

WIC Radio Ltd. and Rafe Mair (appellants) v. Kari Simpson (respondent) and Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, British Columbia Association of Broadcasters, RTNDA Canada/Association of Electronic Journalists, Canadian Publishers' Council, Magazines Canada, Canadian Association of Journalists and Canadian Journalists for Free Expression (Collectively "Media Coalition") (intervenors)

(31608; 2008 SCC 40; 2008 CSC 40)

Indexed As: Simpson v. Mair et al.

Supreme Court of Canada

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

June 27, 2008.

Summary:

The defendant "shock jock" radio talk show host made allegedly defamatory remarks portraying the plaintiff as bigoted and anti-gay, comparing her condonation of violence against gays as equivalent to that of Hitler respecting the Jewish people. The plaintiff sued for damages for defamation.

The British Columbia Supreme Court, in a judgment reported [2004] B.C.T.C. 754, dismissed the action on the basis of the defence of fair comment. The plaintiff appealed.

The British Columbia Court of Appeal, in a judgment reported (2006), 228 B.C.A.C. 1; 376 W.A.C. 1, allowed the appeal and found the defendant liable for defamation. The defence of fair comment was not available. The court remitted the matter for the determination of damages unless the parties agreed to submit that issue to the Court of Appeal by way of further submissions. The defendant appealed.

The Supreme Court of Canada allowed the appeal and restored the trial judge's decision that the defendant's defamatory comments were protected by the defence of fair comment. LeBel and Rothstein, JJ., although concurring in the result, disagreed with the majority by finding that the defence of fair comment no longer required proof of objective honest belief.

Libel and Slander - Topic 3

General - Defamation v. Charter - The Supreme Court of Canada stated that "the function of the tort of defamation is to vindicate reputation, but many courts have concluded that the traditional elements of that tort may require modification to provide broader accommodation to the value of freedom of expression. There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action. ... Of course 'chilling' false and defamatory speech is not a bad thing in itself, but chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship. Public controversy can be a rough trade, and the law needs to accommodate its requirements. Canadian courts have frequently pointed to the need to develop the common law in accordance with Charter values, including the law of defamation" - See paragraphs 15 to 16.

Libel and Slander - Topic 2992.2

Defences - Qualified privilege - Where media gets material facts wrong - The Supreme Court of Canada discussed, without accepting or rejecting, caselaw in England, Australia and New Zealand dealing with the media and the qualified privilege defence - In England, the "public interest defence of responsible journalism" protected journalists even where he or she got the material facts wrong - In Australia, the "government and political matters defence" adopted qualified privilege where the media proved reasonableness of conduct - In New Zealand, both approaches were rejected in favour of qualified privilege being defeated where the media knew it was not telling the truth or was reckless in that regard (i.e., public interest disclosure of proof of irresponsible journalism) - The court stated that "while the legal position in both Australia and New Zealand was influenced by statutory provisions that have no direct counterpart in Canada, the Canadian law of qualified privilege will necessarily evolve in ways that are consistent with Charter values. At issue will be both the scope of the qualified privilege ... and whether the burden of proof of responsible journalism should lie on the defendant ... or irresponsible journalism on the plaintiff" - Whether any such approach should apply in Canada would have to be resolved in some future appeal - See paragraphs 20 to 24.

Libel and Slander - Topic 3106

Defences - Fair comment - Elements of fair comment - General - The Supreme Court of Canada listed the elements of the "fair comment" defence as follows: "(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 man honestly express that opinion on the proved facts?; (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" - See paragraph 1.

Libel and Slander - Topic 3107

Defences - Fair comment - Elements of fair comment - Honest expression of opinion - The plaintiff was a well-known social activist in a public debate about introducing materials respecting homosexuality in schools - The plaintiff consistently opposed any positive portrayal of gays - The defendant "shock jock" radio talk show host, responding to the plaintiff's speech, imputed that the plaintiff would condone violence against gays - The trial judge held that the statements were defamatory, but protected by the defence of fair comment, because the defendant's beliefs were honestly held and the issue was a matter of public interest - The Court of Appeal substituted a finding of liability for defamation - The defence of fair comment could not protect against the false innuendo that the plaintiff condoned violence against gays unless there was an evidentiary foundation for that finding, which was not present - The Supreme Court of Canada restored the trial finding that the defence of fair comment protected the defendant against his defamatory remark - The factual basis of the defendant's comment was the plaintiff's speech - That factual basis was disclosed and widely known to the defendant's listeners - Absent malice by the defendant, his honest expression of opinion, however exaggerated, was protected by law - The defendant's statement was a comment, not an imputation of fact - The court stated that "the defendant must prove the elements of the fair comment defence (including the objective honest belief requirement) before the onus switches back to the plaintiff to defeat the defence by establishing, if it can, malice on the part of the defendant(s)." - The defendant proved the elements of fair comment and the plaintiff failed to establish malice - That the plaintiff "would condone violence against gay people" was an opinion that could be held by an honest person in the circumstances.

Libel and Slander - Topic 3114

Defences - Fair comment - What constitutes fair comment - [See Libel and Slander - Topic 3107 ].

Cases Noticed:

Price v. Chicoutimi Pulp Co. (1915), 51 S.C.R. 179, refd to. [para. 1].

Cherneskey v. Armadale Publishers Ltd. and King, [1979] 1 S.C.R. 1067; 24 N.R. 271; 90 D.L.R.(3d) 321, refd to. [para. 1].

Sun Life Assurance Co. of Canada v. Dalrymple, [1965] S.C.R. 302, refd to. [para. 1].

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. 2].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129, refd to. [para. 16].

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; 33 D.L.R.(4th) 174; 38 C.C.L.T. 184; 25 C.R.R. 321; [1987] 1 W.W.R. 577, refd to. [para. 16].

Doyle v. Sparrow (1979), 27 O.R.(2d) 206 (C.A.), leave to appeal refused, [1980] 1 S.C.R. xii, refd to. [para. 16].

Reynolds v. Times Newspapers Ltd. et al., [1999] 4 All E.R. 609; 250 N.R. 1 (H.L.), refd to. [para. 20].

Loutchansky v. Times Newspapers Ltd. (Nos. 2-5), [2002] 2 W.L.R. 640; [2001] EWCA Civ. 1805, refd to. [para. 20].

Bonnick v. Morris and Ors (Jamaica), [2003] 1 A.C. 300; [2002] UKPC 31, refd to. [para. 20].

Jameel et al. v. Wall Street Journal Europe Sprl, [2006] 4 All E.R. 1279; 362 N.R. 314; [2006] UKHL 44, refd to. [para. 20].

Cusson v. Quan et al. (2007), 231 O.A.C. 277; 286 D.L.R.(4th) 196; 2007 ONCA 771, leave to appeal granted (2008), 386 N.R. 392 (S.C.C.), refd to. [para. 20].

Lange v. Australian Broadcasting Corp. (1997), 145 A.L.R. 96 (Aust. H.C.), refd to. [para. 21].

Lange v. Atkinson, [2000] 3 N.Z.L.R. 385 (C.A.), refd to. [para. 23].

Botiuk v. Bardyn et al., [1995] 3 S.C.R. 3; 186 N.R. 1; 85 O.A.C. 81, refd to. [para. 23].

Botiuk v. Toronto Free Press Publications Ltd. - see Botiuk v. Bardyn et al.

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. 26].

Ontario Equitable Life & Accident Co. v. Baker, [1926] S.C.R. 297, refd to. [para. 30].

Vander Zalm v. Times Publishers (1979), 96 D.L.R.(3d) 172 (B.C.S.C.), revd. (1980), 18 B.C.L.R. 210; 109 D.L.R.(3d) 531 (C.A.), refd to. [para. 33].

Barltrop v. Canadian Broadcasting Corp. (1978), 25 N.S.R.(2d) 637; 36 A.P.R. 637; 86 D.L.R.(3d) 61 (C.A.), refd to. [para. 34].

Slim v. Daily Telegraph Ltd., [1968] 1 All E.R. 497 (C.A.), refd to. [paras. 36, 83].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125, refd to. [para. 36].

McQuire v. Western Morning News Co., [1903] 2 K.B. 100 (C.A.), refd to. [para. 38].

Howarth v. Barlow (1906), 99 N.Y.S. 457 (App. Div.), refd to. [para. 38].

Merivale v. Carson (1887), 20 Q.B.D. 275 (C.A.), refd to. [para. 40].

Telnikoff v. Matusevitch, [1991] 3 W.L.R. 952; 135 N.R. 281 (H.L.), refd to. [para. 49].

Channel Seven Adelaide Pty. Ltd. v. Manock (2007), 241 A.L.R. 468; [2007] HCA 60 (H.C.), refd to. [para. 49].

Mitchell v. Sprott, [2002] 1 N.Z.L.R. 766 (C.A.), refd to. [para. 49].

New York Times Co. v. Sullivan (1964), 376 U.S. 254 (Sup. Ct.), refd to. [para. 52].

Jones v. Skelton, [1963] 1 W.L.R. 1362 (P.C.), refd to. [para. 55].

Color Your World Corp. v. Canadian Broadcasting Corp. et al. (1998), 106 O.A.C. 279; 38 O.R.(3d) 97; 156 D.L.R.(4th) 27 (C.A.), refd to. [para. 56].

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, refd to. [para. 56].

Macdonell v. Robinson (1885), 12 O.A.R. 270, refd to. [para. 57].

Sim v. Stretch, [1936] 2 All E.R. 1237; 52 T.L.R. 669 (H.L.), refd to. [para. 67].

Davis & Sons v. Shepstone (1886), 11 A.C. 187 (P.C.), refd to. [para. 70].

Cheng v. Tse Wai Chun (2000), 3 H.K.C.F.A.R. 339; [2000] HKCFA 86 (Final C.A.), refd to. [para. 84].

Soane v. Knight (1827), M. & M. 74; 173 E.R. 1086, generally [para. 86].

Campbell v. Spottiswoode (1863), 3 B. & S. 769; 122 E.R. 288, refd to. [para. 86].

Charleston v. News Group Newspapers Ltd. et al., [1995] 2 A.C. 65; 184 N.R. 321; [1995] 2 W.L.R. 450 (H.L.), refd to. [para. 97].

Loukas v. Young, [1968] 3 N.S.W.R. 549, refd to. [para. 97].

Watt v. Longsdon, [1930] 1 K.B. 130 (C.A.), refd to. [para. 104].

Christie v. Westcom Radio Group Ltd. and Bannerman (1990), 75 D.L.R.(4th) 546 (B.C.C.A.), leave to appeal refused [1991] 1 S.C.R. vii; 133 N.R. 239; 79 D.L.R.(4th) vii (S.C.C.), refd to. [para. 104].

Renouf v. Federal Capital Press of Australia Pty. Ltd. (1977), 17 A.C.T.R. 35 (Aust.), refd to. [para. 105].

Authors and Works Noticed:

Brown, Raymond E., Defamation Law: A Primer (1st Ed. 2003), p. 185 [para. 71].

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed. 1994) (2007 Looseleaf Update, Release 4), vol. 2, p. 15-36 [para. 31]; vol. 4, pp. 27-317 [para. 26]; 15-101 [para. 52].

Duncan and Neill, Defamation (1978), p. 62 [paras. 1, 28].

Duncan and Neill, Defamation (2nd Ed. 1983), p. 63 [para. 28].

Gatley, Clement, Libel and Slander (10th Ed. 2003) (2004 Supp.), pp. 18, fn. 32 [para. 68]; 310 [paras. 103, 104]; 311 [paras. 86, 104]; para. 12.12 [para. 31].

Gillooly, Michael, The Law of Defamation in Australia and New Zealand (1998), pp. 132, 133 [para. 105].

Marten, Bevan, A Fairly Genuine Comment on Honest Opinion in New Zealand (2005), 36 V.U.W.L.R. 127, generally [para. 49].

McConchie, Roger D., and Potts, David A., Canadian Libel and Slander Actions (2004), p. 340 [para. 26].

Mitchell, Paul, The Making of the Modern Law of Defamation (2005), pp. 174 [para. 86]; 181 [para. 86].

Salmond and Heuston, R.F.V., The Law of Torts (17th Ed. 1977), pp. 139, 140 [para. 67].

Stone, Geoffrey R., Free Speech in the Age of McCarthy: A Cautionary Tale (2005), 93 Cal. L. Rev. 1387, p. 1402 [para. 37].

Counsel:

Daniel W. Burnett and Paul A. Brackstone, for the appellants;

Lianne W. Potter, for the respondent;

Jamie Cameron, Matthew Milne-Smith and John McCamus, for the intervenor, Canadian Civil Liberties Association;

Robert D. Holmes and Christina Godlewska, for the intervenor, British Columbia Civil Liberties Association;

Brian MacLeod Rogers, for the intervenors, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, British Columbia Association of Broadcasters, RTNDA Canada/The Association of Electronic Journalists, Canadian Publishers' Council, Magazines Canada, Canadian Association of Journalists and Canadian Journalists for Free Expression (Collectively "Media Coalition").

Solicitors of Record:

Owen Bird Law Corporation, Vancouver, B.C., for the appellants;

Lianne W. Potter Law Corporation, Vancouver, B.C., for the respondent;

Osgoode Hall Law School of York University, North York, Ontario, for the intervenor, Canadian Civil Liberties Association;

Holmes & King, Vancouver, B.C., for the intervenor, British Columbia Civil Liberties Association;

Brian MacLeod Rogers, Toronto, Ontario, for the intervenors, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, British Columbia Association of Broadcasters, RTNDA Canada/The Association of Electronic Journalists, Canadian Publishers' Council, Magazines Canada, Canadian Association of Journalists and Canadian Journalists for Free Expression (Collectively "Media Coalition").

This appeal was heard on December 4, 2007, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On June 27, 2008, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Binnie, J. (McLachlin, C.J.C., Bastarache, Deschamps, Fish, Abella and Charron, JJ., concurring) - see paragraphs 1 to 65;

LeBel, J. - see paragraphs 66 to 107;

Rothstein, J. - see paragraphs 108 to 112.