Young v. Toronto Star Newspapers Ltd. et al., (2005) 202 O.A.C. 19 (CA)

• Judge: Simmons, Gillese and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 04, 2005
• Jurisdiction: Ontario
• Citations: (2005), 202 O.A.C. 19 (CA)

Young v. Toronto Star (2005), 202 O.A.C. 19 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. OC.010

Dr. James G. Young (plaintiff/respondent/appellant by way of cross-appeal) v. Toronto Star Newspapers Ltd. and Tracey Tyler (defendants/appellants/respondents by way of cross-appeal)

(C40543)

Indexed As: Young v. Toronto Star Newspapers Ltd. et al.

Ontario Court of Appeal

Simmons, Gillese and LaForme, JJ.A.

October 4, 2005.

Summary:

The plaintiff was Ontario's Chief Coroner and a Deputy Minister in charge of the Centre of Forensic Sciences. Defence counsel in a murder trial sought a mistrial on the ground that a Crown forensic witness, whose report favoured the accused, was pressured by the plaintiff to change his opinion to match that of a colleague, which favoured the Crown. The trial judge, after holding a voir dire, denied a mistrial and absolved the plaintiff of any improper conduct or political interference. Defence counsel was permitted to make another opening statement to the jury, during which time he forcefully repeated his allegations. At the request of both the Crown and defence counsel, a mistrial was granted. All matters except what occurred before the jury were subject to a publication ban. The defendant reporter wrote an article in the defendant newspaper, based on information provided by defence counsel, raising the issue of whether the plaintiff acted improperly and whether political interference with an expert witness was the cause of the mistrial. Although the reporter knew that the plaintiff had been absolved by the trial judge, such information could not be reported because of the publication ban. A second article, after the publication ban terminated, revisited the controversy, but added the information that the trial judge had absolved the plaintiff of any improper conduct. The plaintiff brought an action for damages for defamation.

The Ontario Superior Court allowed the action. The court found the first article defamatory and awarded $90,000 general damages plus $210,985.76 in costs on a partial indemnity basis. A reasonable and ordinary person reading the article would understand that it was stated as fact worthy of belief that the plaintiff pressured a witness to change key evidence, that the plaintiff was guilty of political interference and that the misconduct was a major contributor to the mistrial. The statements were not advanced as unproved allegations by defence counsel in a jury address. Section 4(1) of the Libel and Slander Act permitted a "fair and accurate report without comment in a newspaper". The court held that for s. 4(1) to apply, the report must be fair and accurate in the context of the entire proceeding (including those proceedings subject to the publication ban). The court held that the article was neither fair nor accurate. The defences of absolute privilege, qualified privilege or justification were not established. The reporter and newspaper appealed the finding of liability, the damage award and the costs award. The plaintiff cross-appealed the damage award and the costs award.

The Ontario Court of Appeal dismissed the appeal and the cross-appeal. The trial judge did not err in finding the first article defamatory and that the defences of qualified privilege, absolute privilege and justification did not apply. The trial judge erred in misinterpreting s. 4(1), but the result was the same. The context of the portion of the proceedings subject to the publication ban were irrelevant, but the absolute privilege created by s. 4(1) still did not apply where first article was not "a fair and accurate report without comment" of what took place before the jury. The article constituted a "comment", which also took it outside the protection of s. 4(1). Section 4(1) did not require reporters to "spin or slant" their stories to take account of proceedings subject to a publication ban. The damage award was neither so inordinately high or low as to warrant appellate intervention. The trial judge did not err in finding that there was no malice.

Damage Awards - Topic 632

Torts - Injury to the person - Libel and slander - Ontario's Chief Coroner and Deputy Minister in charge of the Centre of Forensic Sciences was defamed by a newspaper article suggesting as worthy of belief that he and his department was corrupt and politically interfered with a murder trial by pressuring a forensic expert witness to change his opinion to a position favourable to the Crown - The trial judge in the criminal trial rejected the allegation - The Coroner successfully sued the reporter and newspaper for damages for defamation - The court awarded $90,000 general damages and $210,985.76 in costs on a partial indemnity basis - Both the Coroner and the reporter and newspaper appealed and cross-appealed the damage award and the costs award - The Ontario Court of Appeal dismissed the appeal and cross-appeal - The damage award was not so inordinately low or high as to warrant appellate intervention - The court did not err in finding that the defamatory statements were inadvertent and negligent, but not made with malice - There was no error in the court's exercise of its discretion respecting costs - See paragraphs 106 to 148.

Libel and Slander - Topic 684

The statement - What constitutes defamatory statements - Libel - What constitutes a defamatory statement - The plaintiff was Ontario's Chief Coroner and a Deputy Minister in charge of the Centre of Forensic Sciences - Defence counsel in a murder trial sought a mistrial on the ground that a Crown forensic witness, whose report favoured the accused, was pressured by the plaintiff to change his opinion to match that of a colleague, which favoured the Crown - The trial judge, after holding a voir dire, denied a mistrial and absolved the plaintiff of any improper conduct or political interference - Defence counsel was permitted to make another opening statement to the jury, during which time he forcefully repeated his allegations - At the request of both the Crown and defence counsel, a mistrial was granted - All matters except what occurred before the jury were subject to a publication ban - The defendant reporter wrote an article in the defendant newspaper, based on information provided by defence counsel, raising the issue of whether the plaintiff acted improperly and whether political interference with an expert witness was the cause of the mistrial - Although the reporter knew that the plaintiff had been absolved by the trial judge, such information could not be reported because of the publication ban - A second article, after the publication ban terminated, revisited the controversy, but added the information that the trial judge had absolved the plaintiff of any improper conduct - The plaintiff brought an action for damages for defamation - The Ontario Court of Appeal held that the trial judge did not err in finding the first article defamatory and that the defences of qualified privilege, absolute privilege and justification did not apply - The trial judge erred in misinterpreting s. 4(1), but the result was the same - The context of the portion of the proceedings subject to the publication ban were irrelevant, but the absolute privilege created by s. 4(1) still did not apply where first article was not "a fair and accurate report without comment" of what took place before the jury - The article constituted a "comment", which also took it outside the protection of s. 4(1) - Section 4(1) did not require reporters to "spin or slant" their stories to take account of proceedings subject to a publication ban - See paragraphs 47 to 105.

Libel and Slander - Topic 2992

Defences - Qualified privilege - Judicial proceedings - [See Libel and Slander - Topic 684 ].

Libel and Slander - Topic 4007

Malice - General - What constitutes malice - [See Damage Awards - Topic 632 ].

Practice - Topic 7762

Costs - Special orders - Indemnity - [See Damage Awards - Topic 632 ].

Cases Noticed:

MacDougall v. Knight (1889), 14 App. Cas. 194 (H.L.), refd to. [para. 56].

Hansen v. Nugget Publishers Ltd. (1927), 61 O.L.R. 239 (C.A.), refd to. [para. 75].

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. 93].

R. v. Brown (L.A.) et al. (1998), 54 O.T.C. 167; 126 C.C.C.(3d) 187 (Gen. Div.), refd to. [para. 93].

R. v. Regan (G.A.) (1997), 174 N.S.R.(2d) 28; 532 A.P.R. 28; 124 C.C.C.(3d) 77 (S.C.), refd to. [para. 93].

Myers v. Canadian Broadcasting Corp. et al. (2001), 147 O.A.C. 310; 54 O.R.(3d) 626 (C.A.), refd to. [para. 107].

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. 107].

Denison v. Sanderson, [1946] O.R. 601 (C.A.), refd to. [para. 109].

Pacheco v. DeRango, [2001] O.T.C. 669 (Sup. Ct.), refd to. [para. 109].

Leenen v. Canadian Broadcasting Corp. et al. (2001), 147 O.A.C. 317; 54 O.R.(3d) 612 (C.A.), refd to. [para. 109].

Walker and Walker Brothers Quarries Ltd. v. CFTO Ltd. et al. (1987), 19 O.A.C. 10; 59 O.R.(2d) 104 (C.A.), refd to. [para. 119].

Littleton v. Hamilton (1974), 4 O.R.(2d) 283 (C.A.), refd to. [para. 120].

Hodgson v. Canadian Newspapers Co. et al. (2000), 133 O.A.C. 174; 49 O.R.(3d) 161 (C.A.), refd to. [para. 135].

McIntyre Estate v. Ontario (Attorney General) (2002), 164 O.A.C. 37; 61 O.R.(3d) 257 (C.A.), refd to. [para. 143].

Statutes Noticed:

Libel and Slander Act, R.S.O. 1990, c. L-12, sect. 4(1) [paras. 52, 153]; sect. 10 [para. 117].

Authors and Works Noticed:

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed.) (1999 Looseleaf Supp.), pp. 25-12 [para. 106]; 25-32 [para. 139]; 25-262 [para. 120].

Kaufman Report - see Ontario, Attorney General Report, The Commission on Proceedings Involving Guy Paul Morin.

Ontario, Attorney General Report, The Commission on Proceedings Involving Guy Paul Morin (Kaufman Report) (1998), vols. 1, 2 [para. 19].

Counsel:

Paul B. Schabas and Tony S.K. Wong, for the appellants/respondents by way of cross-appeal;

Michael A. Penny and Tycho Manson, for the intervenors, Thomson Canada Ltd., The Globe and Mail, Kirk Makin, Thunder Bay Chronicle Journal and Phil Andrews;

Robert Rueter, for the respondent/appellant by way of cross-appeal.

This appeal was heard on February 28, 2005, before Simmons, Gillese and LaForme, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was released on October 4, 2005, when the following opinions were filed:

Simmons, J.A. (Gillese, J.A., concurring) - see paragraphs 1 to 149;

LaForme, J.A. - see paragraphs 150 to 160.