Wasylyshen v. Canadian Broadcasting Corp. and Neil, (1989) 73 Sask.R. 295 (CA)

• Judge: Tallis, Vancise and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 22, 1989
• Jurisdiction: Saskatchewan
• Citations: (1989), 73 Sask.R. 295 (CA)

Wasylyshen v. CBC (1989), 73 Sask.R. 295 (CA)

MLB headnote and full text

Kenneth Wayne Wasylyshen (respondent) v. Canadian Broadcasting Corporation and Janice Neil (appellants)

(No. 9851)

Indexed As: Wasylyshen v. Canadian Broadcasting Corp. and Neil

Saskatchewan Court of Appeal

Tallis, Vancise and Sherstobitoff, JJ.A.

February 22, 1989.

Summary:

The C.B.C. broadcast an allegedly defamatory and false radio news article about a lawyer who at the time was also a candidate in the 1984 federal election. The lawyer sued the C.B.C. and the journalist who prepared the story. The lawyer sought to compel pretrial discovery of the identity of the defendant journalist's sources. A judge of the Saskatchewan Court of Queen's Bench, in Chambers, in a decision unreported in this series of reports, directed the journalist to answer such questions as would disclose her sources. The journalist and the C.B.C. appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Evidence - Topic 4191

Witnesses - Privilege - Communications to news media - General - The Saskatchewan Court of Appeal stated that "a very limited form of protection has been extended to journalists by some courts but only at the pretrial stage. This rule characterized or known as the 'newspaper rule' enables the court to exercise its discretion and hold that during the discovery stage of a defamation action in which the press are defendants, they cannot be compelled to identify sources of this information even though the information is relevant. But if the matter proceeds to trial and the identity of the source is still a relevant issue disclosure may be made at that stage ... However, this rule which involves exercise of judicial discretion has not been elevated to a category of privilege" - See paragraphs 14, 16.

Evidence - Topic 4191

Witnesses - Privilege - Communications to news media - General - The defendant sued the C.B.C. and a journalist-employee for damages for defamation respecting the broadcast of a radio news item - The plaintiff sought to compel the journalist to disclose the identity of her sources - The plaintiff could not obtain the information by alternate means and sought the information in good faith and not for any improper motive - The Saskatchewan Court of Appeal refused to apply the so-called "newspaper rule" and affirmed that the journalist was required to disclose her sources on discovery, in the circumstances, where the sources did not request confidentiality and the information sought went to the heart of the plaintiff's case - See paragraphs 20 to 25.

Practice - Topic 4175

Discovery - Examination - General - The Saskatchewan Court of Appeal held that in Saskatchewan the "broad relevance" rule applies with respect to pretrial discovery - Accordingly any judicial limitation of the right to answers to relevant questions on discovery is difficult to justify - In Saskatchewan an examination for discovery is in the nature of a searching cross-examination on all matters relevant in the action - See paragraph 18.

Cases Noticed:

Cominco Ltd. v. Phillips Cables Ltd. et al., [1987] 3 W.W.R. 562; 54 Sask.R. 134 (C.A.), refd to. [para. 7].

Attorney General v. Mulholland; Attorney General v. Foster, [1963] 1 All E.R. 676, refd to. [para. 11].

Attorney General v. Clough, [1963] 1 All E.R. 420, refd to. [para. 11].

McGuinness v. Attorney General of Victoria (1940), 63 C.L.R. 73, refd to. [para. 11].

British Steel Corpn. v. Granada Television Ltd., [1981] 1 All E.R. 417 (H.L.), refd to. [para. 13].

Branzburg v. Hagen et al., 408 U.S. 665, refd to. [para. 13].

Reid v. Telegram Publishing Co. Ltd. (1961), 28 D.L.R.(2d) 6 (Ont.), refd to. [para. 15].

Schmuck v. McIntosh (1903), 2 O.W.R. 237, refd to. [para. 15].

Marsh v. McKay (1904), 3 O.W.R. 48, refd to. [para. 15].

Sangster v. Aikenhead (1905), 5 O.W.R. 438, affd. 5 O.W.R. 495, refd to. [para. 15].

Hays v. Weiland (1918), 43 D.L.R. 137 (Ont. C.A.), refd to. [para. 15].

de Schelking v. Cromie, [1918] 3 W.W.R. 1038 (B.C.), refd to. [para. 15].

Red Deer Nursing Home Ltd. v. Taylor (1968), 1 D.L.R.(3d) 491 (Alta.), refd to. [para. 15].

Baxter v. C.B.C. and Malling (1978), 22 N.B.R.(2d) 307; 39 A.P.R. 307, refd to. [para. 15].

Mouammar v. Bruner (1979), 24 O.R.(2d) 454 (M.C.), refd to. [para. 15].

Drabinsky v. Maclean-Hunter Ltd. (1980), 28 O.R.(2d) 23, refd to. [para. 15].

McConachy v. Times Publishers Ltd. (1964), 49 D.L.R.(2d) 349 (B.C.C.A.), refd to. [para. 18].

Price v. Richmond Review (1965), 54 W.W.R.(N.S.) 378 (B.C.), refd to. [para. 18].

Wismer v. Mclean-Hunter Publishing Co. Ltd. and Fraser (No. 2), [1954] 1 D.L.R. 501 (B.C.C.A.), refd to. [para. 18].

Tisman v. Rae, [1946] 4 D.L.R. 78 (B.C.C.A.), refd to. [para. 18].

Maloney v. Winnipeg Free Press Co. Ltd., [1976] 4 W.W.R. 292 (Man.), refd to. [para. 18].

Savage v. Futcher and Helgeson (1956), 77 W.W.R.(N.S.) 621 (B.C.), refd to. [para. 18].

Hopper v. Dunsmuir (No. 2) (1903), 10 B.C.R. 23 (C.A.), refd to. [para. 18].

Ansley v. Ansley, [1973] 5 W.W.R. 181 (B.C.), refd to. [para. 18].

Richards v. Watch Lake Development Co. Ltd. (1978), 10 C.P.C. 82 (B.C.), refd to. [para. 18].

Kozak v. Beatty, Milne and Mackie (1956-57), 20 W.W.R.(N.S.) 497, refd to. [para. 19].

Home Office v. Harman, [1982] 1 All E.R. 532 (H.L.), refd to. [para. 25].

EMI Records Ltd. v. Spillane and others, [1986] 2 All E.R. 1016, refd to. [para. 25].

Authors and Works Noticed:

Robertson, Stuart M., Courts and the Media, pp. 255-257 [para. 7].

Moore's Federal Practice (1989), Part 2, rule 501, pp. 153, 501 [para. 13].

Anisman and Linden, The Media, the Courts and Charter, p. 234 [para. 13].

Sopinka and Lederman, The Law of Evidence in Civil Cases, pp. 211-216 [para. 16].

Counsel:

M.R. Kindrachuk, for the appellant;

C.M. Ozirny, for the respondent.

This appeal was heard before Tallis, Vancise and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was delivered by the court on February 22, 1989.