Whatcott v. Canadian Broadcasting Corp., (2015) 466 Sask.R. 235 (QB)

• Judge: Elson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 08, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 466 Sask.R. 235 (QB);2015 SKQB 7

Whatcott v. CBC (2015), 466 Sask.R. 235 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JA.038

William Gary Whatcott (plaintiff/applicant) v. Canadian Broadcasting Corporation (defendant/respondent)

(2012 Q.B. No. 67; 2015 SKQB 7)

Indexed As: Whatcott v. Canadian Broadcasting Corp.

Saskatchewan Court of Queen's Bench

Judicial Centre of Weyburn

Elson, J.

January 8, 2015.

Summary:

Whatcott commenced an action against the Canadian Broadcasting Corp. (CBC) alleging that he was defamed by a video clip which the CBC aired in a television and internet newscast. Whatcott applied for summary judgment.

The Saskatchewan Court of Queen's Bench allowed Whatcott's application for summary disposition and entered judgment for Whatcott in the amount of $20,000 in general damages and $10,000 in aggravated damages, for a total award of $30,000. Whatcott was awarded his taxable costs for the action on a party-and-party basis, under Column 3.

Damage Awards - Topic 632

Torts - Injury to the person - Libel and slander - [See first Libel and Slander - Topic 4446 ].

Damage Awards - Topic 2406.1

Aggravated damages - Libel and slander - [See Libel and Slander - Topic 4446 ].

Evidence - Topic 2300

Special modes of proof - Judicial notice - Particular matters - Racism or bias - [See Libel and Slander - Topic 4146 ].

Libel and Slander - Topic 644

The statement - What constitutes defamatory statements - General principles - Disparagement of reputation - [See first Libel and Slander - Topic 650 ].

Libel and Slander - Topic 650

The statement - What constitutes defamatory statements - General principles - From words and video - Whatcott sued the Canadian Broadcasting Corp. (CBC) alleging that he was defamed by a video clip which the CBC aired in a television and internet newscast - Whatcott complained about the CBC's depiction of words that he authored in a flyer (the "Alberta flyer") which he also printed and distributed - His complaint focussed on that portion of the broadcast where the CBC's camera depicted the first page of the Alberta flyer - Whatcott contended that by depicting the Alberta flyer in the manner it did, without referencing the disclaimer on the second page, the CBC conveyed the impression that Whatcott advocated the killing of homosexual people, which was the opposite of the meaning he actually conveyed in the flyer, when read as a whole - Whatcott applied for summary judgment - The Saskatchewan Court of Queen's Bench allowed the application - When viewing the broadcast as a whole, the selective presentation of Whatcott's words from the Alberta flyer, conveyed the impression that Whatcott's views extended to inciting violence against homosexuals - That presentation would tend to lower Whatcott's reputation in the eyes of a reasonable person, and, as such, was defamatory - The court also rejected the CBC's submission that the words were capable of a lesser defamatory meaning - Further, the fact that Whatcott authored and otherwise published the words, albeit by redaction, was not a defence to the assertion of a defamatory meaning - See paragraphs 45 to 57.

Libel and Slander - Topic 650

The statement - What constitutes defamatory statements - General principles - From words and video - Whatcott sued the Canadian Broadcasting Corp. (CBC) alleging that he was defamed by a video clip which the CBC aired in a television and internet newscast - Whatcott described himself as "a pro-life and pro-family advocate," who was opposed to homosexuality - His work became the subject of a human rights complaint that made its way to the Supreme Court of Canada - The CBC covered the case and one of its news stories was the subject of Whatcott's claim - Whatcott complained about the CBC's depiction of words that he authored in a flyer (the "Alberta flyer") which he also printed and distributed - Whatcott applied for summary judgment - The Saskatchewan Court of Queen's Bench allowed the application - When viewing the broadcast as a whole, the selective presentation of Whatcott's words from the Alberta flyer, conveyed the impression that Whatcott's views extended to inciting violence against homosexuals - That presentation would tend to lower Whatcott's reputation in the eyes of a reasonable person, and, as such, was defamatory - The court stated that "Further, the fact that it was not practicable to broadcast the entire flyer is irrelevant. In my view, this would only pose a dilemma for the defendant if there was some compelling reason to have broadcast the content of the Alberta flyer, at all. From the evidence, I see no reason, compelling or otherwise, to have done so. No part of the news story pertained to the content of the Alberta flyer. It was not one of the flyers at issue before the court, and it played no obvious role in the true focus of the story, which centered on the debate between freedom of speech and protection against hate literature" - See paragraph 53.

Libel and Slander - Topic 650

The statement - What constitutes defamatory statements - General principles - From words and video - Whatcott sued the Canadian Broadcasting Corp. (CBC) alleging that he was defamed by a video clip which the CBC aired in a television and internet newscast - Whatcott complained about the CBC's depiction of words that he authored in a flyer (the "Alberta flyer") which he also printed and distributed - Whatcott applied for summary judgment - The Saskatchewan Court of Queen's Bench discussed the definition of a defamatory meaning - The court stated that "It is clear that, in applying the definition, the court is obliged to consider the relevant publication, as a whole, and not the fragment where the alleged defamatory words appear. In this respect, I agree with counsel for the defendant that the plaintiff's counsel was wrong when he focussed virtually all of his arguments on the five second portion of the broadcast, where the image of the Alberta flyer appeared. Having said this, I also discern the defendant's argument as suggesting that the court must simply identify a principal meaning which would characterize the entire broadcast and leave it at that. On this point, I disagree. In my view, the purpose behind the approach of considering the entire publication is simply to determine whether other parts of it alter, in a meaningful way, the defamatory meaning of the excerpt complained of" - See paragraphs 47 to 49.

Libel and Slander - Topic 2801

Defences - General - Responsible communication on matters of public interest - Whatcott sued the Canadian Broadcasting Corp. (CBC) alleging that he was defamed by a video clip which the CBC aired in a television and internet newscast - Whatcott described himself as "a pro-life and pro-family advocate," who was opposed to homosexuality - His work became the subject of a human rights complaint that made its way to the Supreme Court of Canada - The CBC covered the case and one of its news stories was the subject of Whatcott's claim - Whatcott complained about the CBC's depiction of words that he authored in a flyer (the "Alberta flyer") which he also printed and distributed - The Alberta flyer was not one of the flyers at issue before the Supreme Court of Canada - Whatcott applied for summary judgment - The Saskatchewan Court of Queen's Bench allowed the application - When viewing the broadcast as a whole, the selective presentation of Whatcott's words from the Alberta flyer, conveyed the impression that Whatcott's views extended to inciting violence against homosexuals - That presentation would tend to lower Whatcott's reputation in the eyes of a reasonable person, and, as such, was defamatory - CBC did not raise the "responsible communication on matters of public interest" defence in its submissions to the court - However, it did plead a defence it described as "neutral reportage" - The court stated that "To the extent this pleading engages the responsible communications defence, I have had no difficulty in finding that neither element of the twofold test had been made out. In particular, ... I find nothing to suggest that the publication of the impugned excerpt from the Alberta flyer was a matter of public interest, or was even relevant to the focus of the broadcast as a whole" - See paragraph 62.

Libel and Slander - Topic 4007

Malice - What constitutes - [See Libel and Slander - Topic 4446 ].

Libel and Slander - Topic 4146

Malice - Evidence - Actual malice - Whatcott sued the Canadian Broadcasting Corp. (CBC) alleging that he was defamed by a video clip which the CBC aired in a television and internet newscast - Whatcott applied for summary judgment - The Saskatchewan Court of Queen's Bench allowed the application - The court stated, inter alia, that "the plaintiff's counsel suggested that the court should find actual malice and do so on the premise that the defendant is known to be biased and unsympathetic with the plaintiff's cause. In this respect, counsel seemed to suggest that this knowledge was sufficiently notorious and well known that it was open for this Court to take judicial notice of it. I am not persuaded by the plaintiff's submission in this respect. Whatever one's views might be of the news media, and the defendant in particular, I am satisfied that this is not a matter upon which the court can take judicial notice or presume actual malice. The existence of actual malice depends on evidence from which proof can be identified or inferences drawn" - See paragraphs 77 to 78.

Libel and Slander - Topic 4423

Damages - General damages (incl. measure of) - Elements and considerations - [See Libel and Slander - Topic 4446 ].

Libel and Slander - Topic 4428

Damages - General damages (incl. measure of) - Aggravated damages - [See Libel and Slander - Topic 4446 ].

Libel and Slander - Topic 4446

Damages - Mitigation - Mitigating circumstances - Whatcott sued the Canadian Broadcasting Corp. (CBC) alleging that he was defamed by a video clip which the CBC aired in a television and internet newscast - Whatcott described himself as "a pro-life and pro-family advocate," who was opposed to homosexuality - His work became the subject of a human rights complaint that made its way to the Supreme Court of Canada - The CBC covered the case and one of its news stories was the subject of Whatcott's claim - Whatcott complained about the CBC's depiction of words that he authored in a flyer (the "Alberta flyer") which he also printed and distributed - Whatcott applied for summary judgment - The Saskatchewan Court of Queen's Bench allowed the application - When viewing the broadcast as a whole, the selective presentation of Whatcott's words from the Alberta flyer, conveyed the impression that Whatcott's views extended to inciting violence against homosexuals - That presentation would tend to lower Whatcott's reputation in the eyes of a reasonable person and was defamatory - The court found that CBC demonstrated actual malice - Not only was this a consideration in the assessment of general damages, it also justified an award of aggravated damages - The CBC had the Alberta flyer in its possession for a sufficient period of time that it was able to film and broadcast the front page - Hence, the CBC's staff was aware, or should have been aware, of the entire contents of the Alberta flyer, including the disclaimer on the second page - They would also have known that the document was not one of the flyers at issue before the Supreme Court of Canada, and had virtually nothing to do with news story it was presenting - As for any mitigating factors in the assessment of damages, the court stated that it had to consider the extent to which Whatcott's conduct, in creating and distributing the Alberta flyer, contributed to the publication of the defamation he now complained of - Whatcott was actively trying to provoke and attract attention by creating, printing and distributing the Alberta flyer - In doing so, he had to be taken to have accepted the risk that readers might note the impugned words but not the disclaimer on the second stage of the flyer - The court awarded Whatcott $20,000 in general damages and $10,000 in aggravated damages - See paragraphs 79 to 84.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - Whatcott sued the Canadian Broadcasting Corp. (CBC) alleging that he was defamed by a video clip which the CBC aired in a television and internet newscast - Whatcott complained about the CBC's depiction of words that he authored in a flyer (the "Alberta flyer") which he also printed and distributed - Whatcott applied for summary judgment - The Saskatchewan Court of Queen's Bench held that "having regard to the pleadings and evidence produced, I am satisfied that there is no genuine issue that would require a trial. As far as I can determine, there are no meaningful facts in dispute. ... While it would have been preferable for the court to receive more evidence, particularly about the reasons for the defendant to have depicted the Alberta flyer in the manner it did, as well as more evidence going to the plaintiff's damages, I do not regard this lack of evidence as an impediment to a summary determination. While either party could have pursued and subsequently produced such evidence, I must defer to their respective decisions not to do so" - See paragraph 43.

Cases Noticed:

Whatcott v. Human Rights Tribunal (Sask.) et al., [2013] 1 S.C.R. 467; 441 N.R. 1; 409 Sask.R. 75; 568 W.A.C. 75; 2013 SCC 11, refd to. [para. 12].

Johnson v. Music World Limited, 2003 AHRC 3, consd. [para. 15].

Pervez et al. v. Caskey et al. (2013), 431 Sask.R. 201; 2013 SKQB 377, refd to. [para. 37].

Combined Air Mechanical Services Inc. et al. v. Flesch et al. (2011), 286 O.A.C. 3; 108 O.R.(3d) 1; 2011 ONCA 764, refd to. [para. 38].

Park Derochie Coatings (Saskatchewan) Inc. v. 607911 Saskatchewan Ltd. et al. (2013), 434 Sask.R. 104; 2013 SKQB 422, refd to. [para. 38].

Royal Bank of Canada v. Hrenyk (2014), 436 Sask.R. 129; 2014 SKQB 15, refd to. [para. 38].

Combined Air Mechanical Services Inc. v. Flesch - see Hryniak v. Mauldin.

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 39].

Tchozewski v. Lamontagne (2014), 440 Sask.R. 34; 2014 SKQB 71, refd to. [para. 39].

Saskatoon & Region Home Builders' Association Inc. v. Children's Wish Foundation of Canada (2014), 440 Sask.R. 300; 2014 SKQB 89, refd to. [para. 39].

Elchuk et al. v. Gulansky (2014), 453 Sask.R. 229; 2014 SKQB 252, refd to. [para. 39].

Jo-Mar Fashions Inc. v. Giang et al., [2014] 11 W.W.R. 801; 453 Sask.R. 159; 2014 SKQB 251, refd to. [para. 39].

Vellacott v. Laliberte (2012), 390 Sask.R. 120; 2012 SKQB 23, refd to. [para. 44].

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 45].

Cusson v. Quan et al., [2009] 3 S.C.R. 712; 397 N.R. 94; 258 O.A.C. 378; 2009 SCC 62, refd to. [para. 45].

Taylor v. Cox (2013), 419 Sask.R. 98; 2013 SKQB 146, refd to. [para. 47].

Leenen v. Canadian Broadcasting Corp. et al. (2000), 105 O.T.C. 91; 48 O.R.(3d) 656 (Sup. Ct.), refd to. [para. 47].

Chalmers v. Payne (1835), 2 C.M. & R. 156, refd to. [para. 49].

Myers v. Canadian Broadcasting Corp. et al. (2000), 103 O.T.C. 81 (Sup. Ct.), affd. (2001), 147 O.A.C. 310; 54 O.R.(3d) 626 (C.A.), leave to appeal denied (2001), 289 N.R. 200; 163 O.A.C. 400 (S.C.C.), consd. [para. 55].

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. 63].

Statutes Noticed:

Rules of Court (Sask.), Queen's Bench Rules, rule 7-5 [para. 36].

Counsel:

Thomas A. Schuck, for the plaintiff;

Matthew A. Woodley, for the defendant.

This action was heard before Elson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Weyburn, who delivered the following judgment on January 8, 2015.