Wasylyshen v. Canadian Broadcasting Corp. et al., (2005) 385 A.R. 343 (QB)

• Judge: Ouellette, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 18, 2005
• Citations: (2005), 385 A.R. 343 (QB);2005 ABQB 902

Wasylyshen v. CBC (2005), 385 A.R. 343 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. DE.024

Robert Wasylyshen (plaintiff) v. Canadian Broadcasting Corporation, Morris Karp, Mark Kelley, Cecil Rosner, Timothy Sawa, Tessa Sproule, Tania White and Jim Williamson (defendants)

(0403 08497; 2005 ABQB 902)

Indexed As: Wasylyshen v. Canadian Broadcasting Corp. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ouellette, J.

November 29, 2005.

Summary:

The former Chief of Police of the Edmonton Police Service, Wasylyshen, sued the Canadian Broadcasting Corp. (CBC), claiming that he was maliciously defamed by the CBC in its television program "Disclosure". As part of the discovery process, the CBC refused to produce certain documents sought by Wasylyshen, claiming that the documents contained confidential source information.

The Alberta Court of Queen's Bench refused Wasylyshen's request for immediate disclosure of the documents that would disclose the identity of the confidential sources. The court however set out a procedure to have the trial judge decide the issue well in advance of trial.

Evidence - Topic 4191

Witnesses - Privilege - Communications to news media - [See first Practice - Topic 4579.2 ].

Practice - Topic 4258.1

Discovery - Examination - Range of - Identity of (nonpolice) informant (newspaper rule) - [See first Practice - Topic 4579.2 ].

Practice - Topic 4579.2

Discovery - What documents must be produced - Privileged documents - Where production would reveal journalist's confidential sources (newspaper rule) - The Alberta Court of Queen's Bench discussed the "newspaper rule" (i.e., the rule of practice that a journalist was not required to reveal his or her sources) - The court stated that the question of whether there existed a journalist-source privilege should be answered on a case by case basis - That determination was best made by taking into account the public policy rationale underlying the newspaper rule and by applying the Wigmore test for qualified privilege in accordance with the constitutional guarantee provided under s. 2(b) of the Charter - See paragraphs 15 to 22 and 39.

Practice - Topic 4579.2

Discovery - What documents must be produced - Privileged documents - Where production would reveal journalist's confidential sources (newspaper rule) - A former police chief sued the Canadian Broadcasting Corp. (CBC), claiming that he was maliciously defamed by the CBC in its television program "Disclosure" - During discovery, the CBC refused to produce certain documents, claiming that the documents contained confidential source information - The Alberta Court of Queen's Bench refused Wasylyshen's request for immediate disclosure of the documents, but set out a procedure to have the trial judge decide the issue well in advance of trial - The court held that, based on the facts of this case and the clear public policy rationale underlying freedom of the press and the protection of journalist-source relationships, it was not in the public interest to order the immediate disclosure of the identities of the confidential sources - See paragraphs 1 to 48.

Cases Noticed:

Czuy v. Mitchell et al., [1976] 6 W.W.R. 676; 1 A.R. 434 (C.A.), not folld. [para. 11].

Weatherill Estate v. Weatherill et al. (2003), 337 A.R. 180; 2003 ABQB 69, refd to. [para. 12].

Liu v. West Edmonton Mall Property Inc. et al. (2000), 279 A.R. 305 (Q.B.), refd to. [para. 14].

McConachy v. Times Publishers Ltd. (1964), 49 D.L.R.(2d) 349 (B.C.C.A.), refd to. [para. 19].

Reid v. Telegram Publishing Co., [1961] O.R. 418 (S.C.), refd to. [para. 19].

Coates v. The Citizen and Southam Inc. et al. (1986), 74 N.S.R.(2d) 143; 180 A.P.R. 143 (C.A.), refd to. [para. 20].

Wasylyshyn v. Canadian Broadcasting Corp. and Neil (1989), 73 Sask.R. 295 (C.A.), refd to. [para. 21].

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. 23].

Sierra Club of Canada v. Canada (Minister of Finance) et al., [2002] 2 S.C.R. 522; 287 N.R. 203, refd to. [para. 23].

Vancouver Sun, Re - see Application Under Section 83.28 of the Criminal Code, Re.

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 332; 322 N.R. 161; 199 B.C.A.C. 1; 326 W.A.C. 1; 2004 SCC 43, refd to. [para. 23].

Moysa v. Labour Relations Board (Alta.), Alberta Food and Commercial Workers, Local 401 and Hudson Bay Co., [1989] 1 S.C.R. 1572; 97 A.R. 368, refd to. [para. 24].

Edmonton Journal v. Alberta (Attorney General) (1989), 102 N.R. 321; 103 A.R. 321; 64 D.L.R.(4th) 577 (S.C.C.), refd to. [para. 25].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81, refd to. [para. 26].

Canadian Broadcasting Corp. v. Lessard - see Société Radio-Canada v. Lessard (juge), Québec (Procureur général) et autres.

Société Radio-Canada v. Lessard (juge), Québec (Procureur général) et autres, [1991] 3 S.C.R. 421; 130 N.R. 321; 43 Q.A.C. 161, refd to. [para. 26].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201, refd to. [para. 27].

R. v. National Post et al., [2004] O.T.C. 50; 69 O.R.(3d) 427 (Sup. Ct.), refd to. [para. 28].

Tremblay v. Hamilton, [1995] J.Q. No. 2949 (Sup. Ct.), refd to. [para. 34].

Développements Hydromega Inc. v. Société Radio-Canada, [1998] A.Q. No. 240 (Sup. Ct.), refd to. [para. 36].

Statutes Noticed:

Rules of Court (Alta.), rule 186.1 [para. 11].

Authors and Works Noticed:

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed. 1994), pp. 21-30, 21-31 [para. 15].

Counsel:

Gerald B. Robertson, Q.C., for the plaintiff;

Fred S. Kozak and Matthew A. Woodley (Reynolds Mirth Richards & Farmer LLP), for the defendants.

This matter was heard on October 18, 2005, by Ouellette, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on November 29, 2005.