Whatcott v. Canadian Broadcasting Corp., (2016) 472 Sask.R. 311 (CA)

• Judge: Ottenbreit, Caldwell and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 17, 2015
• Jurisdiction: Saskatchewan
• Citations: (2016), 472 Sask.R. 311 (CA);2016 SKCA 17

Whatcott v. CBC (2016), 472 Sask.R. 311 (CA);

    658 W.A.C. 311

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. FE.039

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

(CACV2671; 2016 SKCA 17)

Indexed As: Whatcott v. Canadian Broadcasting Corp.

Saskatchewan Court of Appeal

Ottenbreit, Caldwell and Herauf, JJ.A.

February 10, 2016.

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, in a decision reported at (2015), 466 Sask.R. 235, allowed Whatcott's application for summary judgment and awarded him $20,000 in general damages. In addition, having found that the CBC acted with actual malice, the judge awarded Whatcott $10,000 in aggravated damages The CBC appealed.

The Saskatchewan Court of Appeal allowed the appeal in part. The court reversed the judge's findings of actual malice and his assessments of damages arising therefrom and, while the court found no cogent basis to set aside the finding of defamation, it reduced the general damages awarded to a nominal amount of $1,000.

Damage Awards - Topic 632

Torts - Injury to the person - Libel and slander - [See Libel and Slander - Topic 650 ].

Damage Awards - Topic 2406.1

Aggravated damages - Libel and slander - [See Libel and Slander - Topic 650 ].

Libel and Slander - Topic 650

The statement - What constitutes defamatory statements - General principles - From words and video - The Canadian Broadcasting Corp. (CBC) published a news segment on The National television program and on its website dealing with Whatcott's appeal of the decision in Whatcott v. Saskatchewan (Human Rights Tribunal) (2010 SKCA and 2013 SCC) - That decision dealt with findings by the Saskatchewan Human Rights Commission to the effect that Whatcott had violated s. 14 of the Saskatchewan Human Rights Code by disseminating certain pamphlets - The televised news segment included a short pan of one of Whatcott's pamphlets, but one that was not part of the record in his appeal to the Supreme Court - The pamphlet set out lyrics to a song that Whatcott had modified so that it was entitled "Kill the Homosexual" - On the reverse side of the pamphlet, Whatcott had purported to disclaim or exculpate himself from liability for its inflammatory content, suggesting that he did not truly advocate the murder of homosexuals - That "exculpatory statement" did not appear in the CBC news segment - Whatcott sued the CBC for defamation, alleging that the showing of the pamphlet in the news segment would cause viewers to believe he had advocated the murder of homosexuals - A judge granted Whatcott's summary judgment application and awarded him $20,000 in general damages - In addition, having found that the CBC had acted with actual malice, the judge awarded Whatcott $10,000 in aggravated damages - The CBC appealed - The Saskatchewan Court of Appeal allowed the appeal in part - The finding of defamation was not subject to appellate reversal - However, the judge's findings with respect to the extent of publication and actual malice were set aside, as was the award of aggravated damages - The award of compensatory general damages was reduced to the nominal amount of $1,000.

Libel and Slander - Topic 4144

Malice - Evidence - Burden of proof - [See Libel and Slander - Topic 4146 ].

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 on The National television program and on its website - A judge granted Whatcott's application for summary judgment and awarded him $20,000 in general damages - In addition, having found that the CBC had acted with actual malice, the judge awarded Whatcott $10,000 in aggravated damages - The CBC appealed - The Saskatchewan Court of Appeal allowed the appeal in part - The court, inter alia, set aside the finding of actual malice - Given that the CBC was a corporate entity, the determination of whether it had entertained actual malice required an examination of the state of mind of at least one of the CBC employees who had participated in the publication of the news segment - Extrinsic evidence of this nature was essential to demonstrate the CBC had been motivated by an unjustifiable intention to injure Whatcott - Without it, the judge could not reasonably infer the CBC had been motivated by actual malice - In a defamation action against a corporation, the law provided the plaintiff with an opportunity to question corporate representatives regarding their motivations, actions or subjective states of mind - Whatcott elected to proceed to summary judgment in the absence of such evidence - The expediency of that process did not displace the onus or burden of proof - It was a reversible error for the judge to have found actual malice on the part of the CBC without any evidence to support that finding - See paragraphs 19 to 28.

Libel and Slander - Topic 4423

Damages - General damages (incl. measure of) - Elements and considerations - Whatcott sued the Canadian Broadcasting Corp. (CBC) alleging that he was defamed by a video clip which the CBC aired on The National television program and on its website - A judge granted Whatcott's application for summary judgment and awarded him $20,000 in general damages - When it came to his assessment of general damages, despite observing the absence of evidence with respect to the scope of publication, the judge made a finding that the CBC had broadcast the news segment to at least as many viewers as had seen the broadcasts in Myers v Canadian Broadcasting Corporation (1999 ONCA) - In addition, having found that the CBC acted with actual malice, the judge awarded Whatcott $10,000 in aggravated damages - The CBC appealed - The Saskatchewan Court of Appeal stated that "... the judge's assessment of the extent of publication amounted to pure speculation, which he improperly bolstered by reference to the evidence adduced in another, entirely unrelated case. ...  the summary nature of these proceedings did not displace the onus on a plaintiff to make out its case against the defendant. ... It was not for the judge to fill in the gaps with speculation. As the judge's assessment of the extent of publication was not based upon any evidence, I would set it aside. Moreover, there is no reasonable basis upon which to make a finding in this case about the extent of publication of the news segment. As such, that factor should have had but a nominal impact on the assessment of general damages. I would, therefore, set aside the $20,000 general damages award as well" - The award of compensatory general damages was reduced to the nominal amount of $1,000. See paragraphs 12 to 18.

Libel and Slander - Topic 4425

Damages - General damages - Measure of - Nominal or contemptuous damages - [See Libel and Slander - Topic 650 and Libel and Slander - Topic 4423 ].

Libel and Slander - Topic 4428

Damages - General damages (incl. measure of) - Aggravated damages - Whatcott sued the Canadian Broadcasting Corp. (CBC) alleging that he was defamed by a video clip which the CBC aired on The National television program and on its website - A judge granted Whatcott's application for summary judgment and awarded him $20,000 in general damages - In addition, having found that the CBC acted with actual malice, the judge awarded Whatcott $10,000 in aggravated damages - The CBC appealed - The Saskatchewan Court of Appeal allowed the appeal in part - The court stated, inter alia, that there was no basis for an award of aggravated damages in this case - The court reversed the finding of actual malice and for that reason alone, the award of aggravated damages too had to fall - Even if there had been evidence upon which to ground a finding of actual malice, there was no evidence that that malice had in fact increased or aggravated Whatcott's damages in any way - The evidence before the judge was insufficient to justify a significant award of general damages - Given that assessment, the evidence could not reasonably be said to have supported an award of aggravated damages - The court stated that "although the Chambers judge's finding of defamation attracts a presumptive award of damages, the absence of evidence of the effect of the defamation that occurred here limits that to an award of nominal damages only" - See paragraphs 29 to 32.

Libel and Slander - Topic 4504

Damages - Libel - Proof of damage - [See Libel and Slander - Topic 4423 and Libel and Slander - Topic 4428 ].

Practice - Topic 5715

Judgments and orders - Summary judgments - Burden on applicant - [See Libel and Slander - Topic 4146 and Libel and Slander - Topic 4423 ].

Cases Noticed:

Whatcott v. Human Rights Tribunal (Sask.) et al. (2010), 346 Sask.R. 210; 477 W.A.C. 210; 2010 SKCA 26, varied [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. 2].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 6].

Farm Credit Corp. v. Valley Beef Producers Co-operative Ltd. et al. (2002), 223 Sask.R. 236; 277 W.A.C. 236; 2002 SKCA 100, refd to. [para. 6].

Great Sandhills Terminal Marketing Centre Ltd. v. J-Sons Inc. et al. (2008), 307 Sask.R. 295; 417 W.A.C. 295; 2008 SKCA 16, refd to. [para. 6].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620, refd to. [para. 6].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 6].

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. [para. 8].

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

Jiang v Sing Tao Daily Ltd., 2014 ONSC 287, refd to. [para. 8].

Myers v. Canadian Broadcasting Corp. et al. (2001), 147 O.A.C. 310; 54 O.R.(3d) 626 (C.A.), refd to. [para. 13].

Myers v. Canadian Broadcasting Corp. et al. (1999), 103 O.T.C. 81; 47 C.C.L.T.(2d) 272 (Sup. Ct.), refd to. [para. 14].

Vellacott v. Laliberte (2012), 390 Sask.R. 120; 2012 SKQB 23, refd to. [para. 16].

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. 20].

Bevis et al. v. CTV Inc. et al. (2004), 228 N.S.R.(2d) 24; 723 A.P.R. 24; 2004 NSSC 246, refd to. [para. 26].

McKearney v. Petro-Canada Inc., 1994 CanLII 3072 (B.C.S.C.), refd to. [para. 26].

Akinleye v. East Sussex Hospitals NHS Trust, [2008] EWHC 68 (Q.B.), refd to. [para. 26].

Webster v. British Gas Services Ltd., [2003] EWHC 1188 (Q.B.), refd to. [para. 26].

Duke et al. v. Puts, [2004] 6 W.W.R. 208; 241 Sask.R. 187; 313 W.A.C. 187; 2004 SKCA 12, refd to. [para. 30].

Counsel:

Matthew Woodley, for the appellant;

Thomas A. Schuck, for the respondent.

This appeal was heard on November 17, 2015, before Ottenbreit, Caldwell and Herauf, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Caldwell, J.A., on February 10, 2016.