SCC File No.: 32932
IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
BETWEEN: PETER GRANT and GRANT FOREST PRODUCTS INC. Appellants/ Respondents on Cross-Appeal (Respondents) -and- TORSTAR CORPORATION, TORONTO STAR NEWSPAPERS LIMITED, BILL SCHILLER, JOHN HONDERICH and MARY DEANNE SHEARS Respondents/ Appellants on Cross-Appeal (Appellants) -and-
THE OTTAWA CITIZEN, CANADIAN NEWSPAPER ASSOCIATION, AD IDEM/CANADIAN MEDIA LAWYERS ASSOCIATION, RTNDA CANADA/THE ASSOCIATION OF ELECTRONIC JOURNALISTS, MAGAZINES CANADA, CANADIAN ASSOCIATION OF JOURNALISTS, CANADIAN JOURNALISTS FOR FREE EXPRESSION, THE WRITERS' UNION OF CANADA, PROFESSIONAL WRITERS ASSOCIATION OF CANADA, BOOK AND PERIODICAL COUNCIL, PEN CANADA, CANADIAN BROADCASTING CORPORATION, CANADIAN CIVIL LIBERTIES ASSOCIATION, and DANNO CUSSON Interveners
FACTUM OF RESPONDENTS ON APPEAL! FACTUM OF APPELLANTS ON CROSS-APPEAL (Pursuant to Rules 42 and 43 of the Rules ofthe Supreme Court ofCanada)
BLAKE CASSELS & GRAYDON LLP BLAKE CASSELS & GRAYDON LLP Box 25, Commerce Court West 45 O'Connor Street Toronto, ON M5L lA9 Suite 2000, World Exchange Plaza Fax: 416.863.2653 Ottawa, ON KIP lA4
Paul B. Schabas LSUC#: 26355A Nancy K. Brooks LSUC#: 37690H Tel: 416.863.4274 Tel: (613) 788-2218 Email: [email protected] Fax: (613) 788-2247 Erin Hoult LSUC#: 54002C Email: [email protected] Tel: 416.863.4011 Email: [email protected] Agent for the Respondents/ Appellants on Cross-Appeal Iris Fischer LSUC# 52762M Tel: 416.863.2408 Email: [email protected]
Counsel for the Respondents/ Appellants on Cross-Appeal 11
ORIGINAL TO: THE REGISTRAR COPIES TO:
FASKEN MARTINEAU DuMOULIN LLP FASKEN MARTINEAU DuMOULIN LLP Suite 4200, Toronto Dominion Bank Tower 55 Metcalfe Street, Suite 1300 Box 20, Toronto-Dominion Centre Ottawa, ON KIP 6L5 Toronto, ON M5K IN6 Stephen B. Acker Peter A. Downard Tel: 613.236.3882 Tel: 416.865.4369 Fax: 613.230.6423 Fax: 416.364.7813 Email: [email protected] Email: [email protected] Ottawa Agent for the Appellants! Catherine M. Wiley Respondents on Cross-Appeal Dawn K. Robertson
Counsel for the Appellants! Respondents on Cross-Appeal
GOWLING LAFLEUR HENDERSON LLP 160 Elgin Street, Suite 2600 Ottawa, ON KIP 1C3
Richard G. Dearden Wendy J. Wagner Tel: 613-786-0135 Fax: 613-788-3430
Counsel for the Intervener, The Ottawa Citizen
BRIAN MACLEOD ROGERS GOWLING LAFLEUR HENDERSON LLP 250 Yonge Street 160 Elgin Street, Suite 2600 Suite 2010, P.O. Box 20 Ottawa, ON KIP lC3 Toronto, ON M5B 2L 7 Tel: (416) 593-1579 Henry S. Brown, Q.C. Fax: (416) 593-8494 Tel: (613) 233-1781 Email: [email protected] Fax: (613) 788-3433 Email: [email protected] Counsel for the Intervener, Media Coalition Agent for the Intervener, Media Coalition 11l
CANADIAN BROADCASTING MCCARTHY TETRAULT CORPORATION 40 Elgin Street 250 Front Street West 14th Floor Suite 6C400 Ottawa, ON KIP 5K6 Toronto, ON M5W lE6
Daniel Henry Colin Baxter Tel: (416) 205-3215 Tel: (613) 238-2121 Fax: (416) 205-2723 Fax: (613) 563-9386 Email: [email protected] Email: [email protected]
Counsel for the Intervener, Canadian Agent for the Intervener, Canadian Broadcasting Corporation Broadcasting Corporation
TORYSLLP GOWLING LAFLEUR HENDERSON LLP 79 Wellington Street West 160 Elgin Street, Suite 2600 Suite 3000 Ottawa, ON KIP lC3 Box 270, TD Centre Toronto, ON M5K IN2 Ed Van Bemmel Tel: (613) 786.0212 Patricia D.S. Jackson Fax: (613) 563.9869 Tel.: (416) 865.7323 Email: [email protected] Email: [email protected] Agent for the Intervener, Canadian Civil Andrew E. Bernstein Liberties Association Tel.: (416) 865.7678 Email: [email protected]
Jennifer A. Conroy Tel.: (416) 865.7663 Email: [email protected] Fax: (416) 865.7380
Counsel for the Intervener, Canadian Civil Liberties Association
HEENAN BLAIKIE LLP 55 Metcalfe Street, Suite 300 Ottawa, ON KIP 6L5
Ronald F. Caza Jeff Saikaley Mark C. Power
Tel: 613-236-1668 Fax: 866-588-4953
Counsel for the Intervener, Danno Cusson TABLE OF CONTENTS
Page
FACTUM OF RESPONDENTS ON APPEAL
PART I - OVERVIEW AND STATEMENT OF FACTS ...... 1 1. Overview ...... 1 (a) Fair comment and lack of malice ...... 2 (b) Statements of fact and responsible journalism ...... 3 2. Statement offacts ...... 4 (a) The Osprey Links article and a Hudson Lakes Association meeting ...... 4 (b) Lorrie Clark's email and beginning of Bill Schiller's investigation ...... 6 (c) Grant's ties to the Ontario Conservative Party and Mike Harris ...... 7 (d) Schiller goes to New Liskeard to meet with cottagers ...... 8 (e) Grant and the emergence of his personal, private golf course ...... 9 (f) Proposed expansion of Grant's personal golf course ...... 10 (g) Grant's "privacy", libel chill, and disregard for others ...... 11 (h) Schiller's attempts to interview Grant in February ...... 13 (i) Schiller continues to investigate ...... 14 G) Additional attempts to contact Grant in June ...... 14 (k) Grant's attempt to block and detain the Star photographer ...... 15 (1) Publication of the article - June 23, 2001 ...... 17 PART II - RESPONDENTS' POSITION ON THE APPELLANTS' QUESTIONS ...... 19 PART III - STATEMENT OF ARGUMENT ...... 20 1. The charge on fair comment and malice was flawed ...... 20 (a) The "fair-minded" charge is clearly wrong ...... 21 (b) The failure to correctly or fairly explain the distinction between comment and fact ...... 23 (c) The failure to charge correctly on the facts supporting the comment...... 24 (d) Misdirections on malice ...... 25 2. The defence of responsible journalism in the public interest ...... 27 (a) The responsible journalism defence should be adopted by this Court ...... 27 (ii)
TABLE OF CONTENTS (continued) Page
(b) The responsible journalism defence was raised in this case ...... 32 (c) The responsible journalism defence is a question of law for the judge ...... 32 (i) The "public interest" ...... 34 (ii) The defamatory statement is "part ofthe story" ...... 36 (iii) The steps taken to gather and publish the story were responsible and fair ...... 37 (d) The "seriousness of the allegations" is also a factor to be considered by the judge, not the jury ...... 40 PART VI - SUBMISSIONS CONCERNING COSTS...... 40 PART V - ORDER SOUGHT ...... 40 PART VI - TABLE OF AUTHORITIES ...... i PART VII - RELEVANT STATUTES, REGULATIONS AND RULES...... iv
FACTUM OF APPELLANTS ON CROSS-APPEAL
PART I - OVERVIEW AND STATEMENT OF FACTS ...... 41 PART II - STATEMENT OF ISSUES ON CROSS-APPEAL ...... 41 PART III - STATEMENT OF ARGUMENT ...... 41 1. Fair comment and malice should not have been left with the jury ...... 41 (a) The words were comment, not fact...... 42 (b) The factual basis for the comment...... 43 (c) The opinion was honestly held ...... 44 (d) No malice ...... 44 2. Responsible journalism: The "seriousness of the allegations" is to be considered by the judge, not the jury ...... 47 3. Other Errors ...... 51 (a) Additional errors in the charge to the jury ...... 51 (i) The presumption of falsity ...... 51 (iii)
TABLE OF CONTENTS (continued) Page
(ii) Failure to fairly summarize the evidence and to link the evidence to the law ...... 52 (iii) Errors relating to meanings ...... 53 (iv) The flawed charge on the defence of justification ...... 54 (b) Errors relating to damages ...... 55 (i) Improper admission of evidence of "special damages" ...... 55 (ii) Errors in the Charge on Damages ...... 57 (iii) The damages award cannot stand ...... 59 PART IV - SUBMISSIONS CONCERNING COSTS ...... 59 PART V - ORDER SOUGHT ...... 60 PART VI - TABLE OF AUTHORITIES ...... i PART VII - RELEVANT STATUTES, REGULATIONS AND RULES ...... v FACTUM OF RESPONDENTS ON APPEAL
PART I - OVERVIEW AND STATEMENT OF FACTS
1. Overview
1. In February 2007 a jury in Haileybury, Ontario rendered a general verdict for the plaintiffs in a libel case. The case arose from an article published in the Toronto Star about a public controversy regarding the proposed acquisition of Crown land by the plaintiffs to construct a private golf course next to a lake for one man's personal use. The article reported the details of the proposal, environmental and public-process issues, and the fears of many cottagers about the development, including that their concerns would not be heard because of the plaintiffs' economic power (the largest private sector employer in the region), very large financial support for the governing provincial Conservative Party, and close connections to Premier Mike Harris.
2. In this case, the Star published a well-researched, accurate investigative story by an experienced reporter on matters of public interest, including the honestly-held fears and opinions of local residents over the future of their lake. The plaintiffs refused to comment, had muzzled scrutiny by the local press through libel suits, instructed their own consultants not to talk, and answered repeated requests for information and comment from the Star with non-responsive or threatening letters from their lawyer. Despite the absence of any harm to the plaintiffs, the jury awarded general, aggravated and punitive damages totalling $1.47 5M - the largest damage award for defamation against the media in Canada.
3. The Ontario Court of Appeal correctly overturned the jury verdict, finding that the trial judge failed to correctly apply the defence of responsible journalism in the public interest, that he made serious errors in his charge the jury on, among other things, the defence of fair comment, the test for malice, and the presumption of falsity, and that he failed to summarize the evidence fairly to the defendants. The multitude of errors by the trial judge (and there were many others) helps to explain the verdict and the extraordinary damage award by the jury. However, the Star 2
cross-appeals on the basis that the Court of Appeal ought not to have ordered a new trial. The case should not have gone to the jury at all - as the defendants argued at trial - and the action should be dismissed by this Court.
(a) Fair comment and lack of malice
4. The principal complaint of the plaintiffs, which became the focus of the trial, was on one statement in the lengthy article, a quotation from a cottager, Dr. Lorrie Clark (who testified at the trial), expressing her honestly-held view that "[e]veryone thinks it's a done deal because of Grant's influence - but most of all his Mike Harris ties ... This is a development that is not in the public interest."}
5. This statement is a comment or opinion and not a statement of fact. It reflected the sentiment of many people in the area, following the approval of a controversial project in nearby North Bay led by "the Premier's best friend", which is why the investigative reporter included it. The fact that the application was not yet a "done deal" (made clear in the article) or that there was no evidence that Grant had in fact used political pressure (not alleged in the article) is irrelevant to the point that people, quite naturally, held an opinion about the end result because of Grant's position and influence. But despite being urged to do so, the trial judge failed to find that the statement was a comment, and left this issue to the jury. Further, he did so in such a way as to suggest that it was statement of fact.
6. As the Court of Appeal found, the trial judge then made serious errors in charging the jury on the law of fair comment, including using a "fair minded person" test repeatedly (at least six times) - which is not the la~, as defendants' counsel pointed out at trial. This may have affected the verdict, necessitating a new trial, as the Court of Appeal ordered.
7. The trial judge also erred in leaving the question of malice with the jury when there was no "probability of its existence,,3. Further, as the Court of Appeal found, the trial judge then improperly instructed the jury on the issue of malice, both on the law and with respect to the
1 Saturday Star newspaper article by Bill Schiller dated June 23,2001, entitled "Cottagers teed off over golf course", Appellants' Record ("AR") Vol. XII at 206-207. 2 W/C Radio Ltd. v. Simpson, [2008] 2 S.c.R. 420 [W/C], Appellants' Book of Authorities ("ABA") Tab 35 3 Davies & Davies Ltd. v. Kott, [1979] 2 S.C.R. 686 at 694 [Davies], Respondents' Book of Authorities ("RBA") Tab 19 3
relevant facts - highlighting the reporter's lack of information that Grant had in fact used political influence - a point irrelevant to the publication of the honestly-held opinion of others.4 This too, together with other errors, also required a new trial, the Court of Appeal held.
8. However, as "everyone thinks it's a done deal" was an honestly held comment on a matter of public interest, and there was no probability of malice, the case should not have gone to the jury, and the Star cross-appeals on the basis that there should not be a new trial.
(b) Statements of fact and responsible journalism
9. Although the plaintiffs' characterization of the "everyone thinks it's a done deal" quote as an unsupported statement of fact is untenable, if the statement is indeed one of fact, it was established as substantially true at the trial: many people did indeed believe that the proposal would be approved.
10. Alternatively, if the statement bore a more serious sting, such as that Grant was actually using political influence to get his way, it was a statement that was appropriately included as "part of the story" in a responsibly researched, fairly written, balanced and accurate investigative article that properly reported concerns of those affected about matters of public interest - a public controversy. The defence of public interest responsible journalism recognized in England in 5 6 7 Reynolds and Jameel , and by the Ontario Court of Appeal in Cusson and in this case, applies.
11. The Court of Appeal correctly held that the trial judge failed to properly consider or apply the defence of responsible journalism. However, rather than apply the defence itself, the Court of Appeal ruled that the meaning of the "impugned statements"S, in particular "everyone thinks it's a done deal", needed to be resolved by a jury at a new trial to inform the judge of the "seriousness of the allegation", which will then "drive the analysis" of the application of the balance of Reynolds factors.
4 Reasons of the Court of Appeal, AR Vol. I at p. 148-150, paras. 85-94 5 Reynolds v. Times Newspapers Ltd., [2001] 2 A.C. 127 (H.L.) [Reynolds], ABA Tab 29 6 Jameel v. Wall Street Journal Europe Sprl, [2007] 1 A.C. 359 (H.L.) [Jameel], ABA Tab 21 7 Cusson v. Quan (2007),87 O.R. (3d) 241 (Ont. C.A.) [Cusson], ABA Tab 9 8 Reasons of the Court of Appeal, AR Vol. I, p. 141, para. 51 4
12. The Star cross-appeals on this issue, which was not raised or argued by counsel in the Court of Appeal. The strength of the responsible journalism defence is its flexibility in balancing the competing interests of freedom of expression and protection of reputation by considering a range of factors, and not by asking juries to answer specific isolated questions which may be given undue weight. Responsible journalism does not require a finding of a "single meaning" to defamatory words. It shows deference to the editorial decisions of journalists and editors who "should not be penalized for making a wrong decision on a question of meaning on which different people might reasonably take different views.,,9
13. This "balancing operation" "is better carried out by a judge in a reasoned judgment than by a jury.,,10 In applying the responsible journalism defence, the judge also considers of the "public interest", the "article as a whole", the "nature" and "source" of information, the "tone", including taking into account that newspapers "can raise queries or call for an investigation", and "need not adopt allegations as statements of fact", and whether the statement was appropriately included as "part of the story". Accordingly, the Court of Appeal ought to have considered the "seriousness of the allegation" itself and found that the defence applied and dismissed the action, as it and the trial judge were asked to do.
2. Statement of facts
14. The Respondents disagree with many aspects of the Appellants' summary of the facts, and prefer to summarize the facts as set out below.
(a) The Osprey Links article and a Hudson Lakes Association meeting
15. This action relates to an article published by the Toronto Star on June 23, 2001. However, the origin of the article starts five months earlier, on January 13,2001, when the Star published a front-page article written by Bill Schiller about the Osprey Links development in North Bay, Ontario: "Slicing through the rules: Genesis of a land deal- How Harris friends overcame fish habitat to build their dream". That article reported on how a close friend of
9 Bannick v. Morris & Drs. (Jamaica), [2003] 1 A.C. 300 (p.C.), at para. 24 [Bannick], ABA Tab 7. As discussed below, the English Courts have rejected the "single meaning rule" in considering responsible journalism. 10 Reynolds, supra at 205 [emphasis added], ABA Tab 29 5
then Premier Mike Harris, Peter Minogue, was able to overcome Ministry of Natural Resources ("MNR") concerns about protecting sensitive fish spawning grounds and get permission to build a golf course and resort. The Star reported that after Minogue complained to "political levels" at Queen's Park, environmental concerns were overruled and the proposal was approved. 11
16. The Osprey Links article was the result of a lengthy investigation by Bill Schiller, a very experienced journalist who has worked for the Star for more than 20 years. Schiller has won numerous awards, including being a two-time finalist and winner of a National Newspaper Award, the highest award in Canadian journalism. He has been the Star's Foreign Editor, a feature writer, and foreign correspondent in Johannesburg, Berlin and London. Schiller studied at Harvard University as a Nieman Fellow in 2005-6. He is now the Star's correspondent in Beijing. 12
17. Coincidentally, on the same day as the Osprey Links story was published, the Hudson Lakes Association ("HLA") - consisting of cottagers and residents with homes on the Twin Lakes near New Liskeard, Ontario, about 150 kms north of North Bay - held a public meeting to consider a proposal by Peter Grant ("Grant") and Grant Forest Products Inc. ("GFP") to acquire a large tract of Crown and private land for the purpose of expanding a private golf course for the personal use of Peter Grant. 13
18. The Osprey Links article was discussed at the public meeting. As Dr. Lorrie Clark, Secretary of the HLA, testified: "everyone was talking about this front page story about a golf course development in North Bay ... I was stunned, I guess, by the possible parallel, as were other people".14 One local resident, holding up the newspaper article, asked the same MNR officials who had been involved in Osprey Links: " ... whether, given today's article in The Toronto Star, the final answer will come from North Bay [i.e. the MNR] or Queen's Park,,?15
11 Saturday Star article by Bill Schiller, dated January 13,2001, as it appeared in the Saturday Star and at www.thestar.com.AR Vol. XII at 187. 12 Schiller, Exam in-Ch., AR Vol. VI at 1-3 and Respondents' Record ("RR"), Vol. I at 134-142. \3 Fleet, Exam. in-Ch., AR Vol. III at 53 (I. 10-25),55 (I. 8-22); Notice of Meeting of the Hudson Lakes Association dated December 14, 2000, AR Vol. IX at 42. The course is in Grant's backyard: Fleet, Cr-ex., AR Vol. IV at 45 (I. 1-15). It is for his "personal" use - "no one can use it" without Grant's approval: Grant, Cr-ex., AR Vol. V at 62-63. 14 Clark, Exam. in-Ch., AR Vol. VII at 120 (I. 10-11) and 122 (I. 1-2). 15 Abridged Transcript of Hudson Lakes Association Special Meeting, AR Vol. X at 76; Fleet, Cr-ex., AR Vol. III at 118 (I. 22) to 119 (I. 25). This exchange was captured in the June 23, 2001 Star article; Article, AR Vol. XII at 206-207. 6
19. Bob Fleet (GFP's Vice President) and Grant's two consultants for the golf course, David Moote and Michael Michalski, attended the meeting. 16 The meeting itself was "packed - standing room only".17 Many cottagers spoke. Tricia Hosking stated her concern that the application was a "done deal". Dr. Clark testified that at the meeting "the primary sentiment was fear that [the proposal] was a done deal", that Grant's connections with Mike Harris "confirmed their fears", and "that the M.N.R. was now just going through the motions. Or that even if they did object, they might - they would be overridden".18
(b) Lorrie Clark's email and beginning of Bill Schiller's investigation
20. Dr. Clark grew up in New Liskeard and has a family cottage on the nearby Twin Lakes. She read the Osprey Links article on January 13, 2001 and called the Star's "hotline" to try to reach Bill Schiller. Late the following evening she sent Schiller an email, when she returned to her home in Peterborough where she is a professor at Trent University.19 She told Schiller that his Osprey Links story "hit New Liskeard like a bombshell, and the Star was sold out all over town by 4 p.m. The coincidence with our Lakes Association meeting over a very similar - although much smaller scale - issue was extraordinary." Dr. Clark commented on the sentiment of many cottagers in a statement which became the central focus at the trial: "Everyone thinks it's a done deal, because of Grant's influence (he employs 10,000 people in Northern Ontario) but most of all his Mike Harris ties". She also stated that "there has been a constant sense from the beginning that this is, as one cottager put it last night, 'a done deal' and that nothing we can do to stop a development that is NOT in the public interest - but obviously only a very private one - will make any difference". 20 The trial judge refused to permit her to explain why she wrote this, although in ruling on this in front of the jury he agreed with Grant's counsel that it was the "central defamatory statement" in the article. 21
16 Fleet, Cr-ex., AR Vol. III at 111 (I. 21) to 112 (I. 12) - Grant did not attend; Grant, Cr.-ex., AR Vol. V at 98 (I. 31) to 99 (I. 7). 17 E-mail from Lorrie Clark to B. Schiller, AR Vol. X at 79. 18 Abridged Transcript of Hudson Lakes Association Special Meeting, AR Vol. X at 75; Clark, Exam. in-Ch., AR Vol. VII at 128 (\. 3) to 129 (I. 4). 19 Dr. Clark received her B.A. and M.A. in English from the University of Toronto and her Ph.D. from the University of Virginia She taught at Mount Holyoke College in Massachusetts before returning to Canada to teach at Trent: Clark, Exam. in-Ch., AR Vol. VII at 107 (\. 11-23). 20 E-mail from Lorrie Clark to B. Schiller, ARVol. X at78;Clark,Exam. In-Ch., ARVol.VII at 128 (\. 3) to 129 (\. 4). 21 Ruling ofJustice Rivard, AR Vol. VII at 127 (\. 23-32). 7
21. Schiller was contacted by others. He received a phone call from a concerned resident, Terry Graves?2 He also received an anonymous letter stating: "Mike Harris was also at [Grant's] charity in Sept. Grant too will obtain political interference of the MNR recommendations if they don't suit him" and " ... has managed to obtain Crown land in the past although objections have been made." The letter said that "due to [Grant's] power in the north I am forced to keep my anonymity ... Would love to chat with you about this but wouldn't dare. Like many others I fear the repercussions!" The writer suggested it might be a "challenging story" about "the favours Mike Harris gives those who likely line the P.e. pockets.,,23 Subsequently, another cottager, Nancy Kramp, emailed Schiller raising concerns about the proposal and noting Grant's connections to Mike Harris.24
22. Although Schiller had heard passing mention of Grant's golf course when researching the Osprey Links story, he had not pursued it. 25 But the issue now caught his interest. As he said, "if we have a story that's being presented to us that deals with such things as water or land or the environment and there are concerns there, this is to me kind of a classic public interest story". People "want to read about stories that matter to them. And to me, this was one." Schiller decided to investigate.26
(c) Grant's ties to the Ontario Conservative Party and Mike Harris
23. Schiller went to Elections Ontario. He discovered that Grant and his companies had donated almost $100,000 between 1995 and 2000, including $58,534.30 in 1999 alone, to the Progressive Conservatives.27 Grant and GFP did not contribute to any other Ontario political party during this period.28 Back in 1990, Grant donated $14,000 to Mike Harris' leadership
22 Schiller, Exam. in-Ch., AR Vo\. VI at 15 (\. 12-16) and 16 (\. 25-32). 23 Letter from Toronto Star Reader to B. Schiller, AR Vol. X at 80-81. Despite suggestions to the contrary in the Appellants' factum (at para. 27), Schiller did not quote any portion of the anonymous letter in the article. There was no "unattributed cheap shot". 24 E-mail from Nancy Kramp to Bill Schiller dated February 8, 2001, AR Vol. X at 118. 25 Schiller, Exam. in-Ch., AR Vo\. VI at 3 (\. 15) to 4 (1. 29). 26 Schiller, Exam. in-Ch., AR Vol. VI at 19 (\. 25) to 20 (1. 20) and 6 (1. 31) to 7 (\. 22). 27 Summary of Political Contributions to the Conservative Party of Ontario, AR Vol. XII at 174; Reporter's Notebook of Bill Schiller, AR Vol. X at 3-20. 28 McLeod, Cr-ex., AR Vol. IV at 75 (\. 6) to 77 (1. 24). See also Summary of Political Contributions to the Conservative Party of Ontario, AR Vol. XII at 174. 8
campaign, and in 1999 he donated $5,000 to John Snobelen's riding association in Mississauga?9 Snobelen was the Minister of Natural Resources.3o
24. Schiller later confirmed that Premier Harris had attended Grant's charity golf tournament.31 As Grant admitted at trial, Harris is a "very good friend" and is now a director of GFP.32 Schiller also discovered that Grant had hired Peter Birnie, a close friend of Harris who was on his riding executive in North Bay, as a Queen's Park lobbyist.33 Although unknown to Schiller and the cottagers at the time, it was disclosed at the trial that Birnie was in fact assisting Grant with the golf course application in 2001.34
(d) Schiller goes to New Liskeard to meet with cottagers
25. On January 31,2001, Schiller went to New Liskeard for a few days. He met with local residents, including Terry Graves, Ira and Marion Murphy, Cary and Alexandra Skrindra, Rudi Ptok, Evelyn Morrison, Bonnie Taylor and lawyer Peter Ramsay. They provided Schiller with documents, letters, proposed plans and environmental reports,35 and he heard their fears about Grant's proposal and the feeling that it was a "done deal".36 Schiller took detailed notes. His four notebooks were exhibits at the trial.37 Schiller visited the local registry office, and the Temiskaming Speaker (the local newspaper), to gather more information.38
29 Portion of a letter from Fasken Martineau DuMoulin to Blake, Cassels & Graydon LLP dated September 20, 2006, AR Vol. XII at 178; McLeod, Cr-ex., AR Vol. IV at 77 (1. 6) to 79; Political Donations Receipts for Mississauga West, AR Vol. XII at 129, 132, 138, 140, 156. 30 Schiller, Exam. in-Ch., AR Vol. VI at 61 (1. 9-18); Fleet, Cr-ex., AR Vol. III at 74 (1. 3-8). 31 Schiller, Exam. in-Ch., AR Vol. VI at 107 (1. 20-26), Schiller Cr-ex., AR Vol. VI at 152 (1. 21-25). 32 Grant, Cr-ex., AR Vol. V at 143 (1. 3-21). 33 Schiller, Exam. in-Ch., AR Vol. VI at 76 (1. 19) to 77; Schiller, Cr-ex., AR Vol. VII at 49 (1. 16) to 52 (1. 10); Ontario Lobbyists Registration Office Consultant Lobbyist Registration, AR Vol. X at 132. 34 Fleet, Re-exam., AR Vol. IV at 53 (1. 12-19). Fleet said that Birnie assisted him with "marshalling the matters through government." Grant had no involvement with the golf course proposal- he left everything t9 Fleet: e.g. Grant Cr-ex., AR Vol. V at 54 (1. 18-27),82 (1. 16-19),89 (1.7) to 90 (1. 17),91 (1. 32) to 92 (1. 27), and 125 (1. 11-28). 35 Schiller, Exam. in-Ch., AR Vol. VI at 15-22. See, for example, Reporter's Notebook of Bill Schiller, AR Vol. IX at 143-152, for his review of some cottagers' letters of opposition. 36 Schiller, Exam. in-Ch., AR Vol. VI at 107 (I. 2-19) and at III (1. 14-22). See also: Reporter's Notebook ofBilI Schiller, AR Vol. X at 25 to 45. 37 Schiller, Exam. in-Ch., AR Vol. VI at 8 (I. 23) to 9 (I. 10) and 25 (I. 11) to 28 (I. 17); Reporter's Notebook ofBill Schiller dated January 26, 2001 to January 31, 2001, AR Vol. X at 1 (see, e.g., pages 49 to 54 for his 67 notes reviewing Grant's expert reports), Reporter's Notebook of Bill Schiller dated January 31 to February 11,2001, AR Vol. IX at 79 (continuation of 67 notes at pages 80-91), Reporter's Notebook of Bill Schiller, dated May 30,2001, AR Vol. XI at 31 (see page 48 for date), and Reporter's Notebook of Bill Schiller, undated, AR Vol. XI at 63. 38 Schiller, Exam. in Ch., AR Vol. VI at 22 (1. 26) to 24 (1.14); Four articles from the Temiskaming Speaker, AR Vol. XII at 179; Parcel Register, RR Vol. II at 193. 9
(e) Grant and the emergence of his personal, private golf course
26. Schiller also learned much more about Peter Grant, his businesses, and the background to the controversy over his proposal.
27. Grant is the sole owner and CEO of GFP, which employs at least 850 direct employees and 5,000-10,000 contractors.39 Grant comes from a large, prominent New Liskeard family that has been a major employer in the lumber industry in the region for decades. GFP is perhaps the largest employer in the area, where the trial took place.4o Grant and GFP's economic power in the region was an issue on jury selection. Although the judge refused to specifically question jurors on links to Grant, 13 of 28 potential jurors called for consideration disclosed conflicts of interest.41
28. Grant and GFP jointly own a waterfront property on Twin Lakes.42 There is a 14,500 square foot house on the property, which previously had been a family cottage. On either side of Grant's property are cottages, many of which belong to families that have been there for decades. The lake was described as "quite pristine" and "a very beautiful place".43 However, Grant's Twin Lakes house had become not only his principal home but also the executive offices of GFP. Ten to twenty GFP employees work there.44
29. In 1993, Grant applied to the MNR to purchase some Crown land adjacent to his property.45 In 1997, the MNR agreed to sell 2.87 hectares (6.89 acres) to Grant. Letters Patent were issued in 1998.46 In the summer of 1997, Grant built a three-hole golf course on this land.47
39 Grant, Exam. in-Ch., AR Vol. V at 23 (I. 30-31); Grant, Cr-ex., AR Vol. V at 42 (I. 24) to 46 (I. 12): Contractors include, among other things, people involved in the logging side of the GFP business, cutters, lumbermen, truckers, etc. See also: Fleet, Cr-ex., AR Vol. III at 76-77. 40 Fleet, Exam. in-Ch., AR Vol. III at 29 (I. 12-19); Grant, Cr-ex., AR Vol. V at 45 (I. 31) to 46 (I. 16). 41 Jury Selection, RR Vol. III at 76 to 85. The Temiskaming district (which includes the adjacent towns of New Liskeard and Haileybury) has a population of only 35,000, of which only 17,000 are eligible voters: see Jury Selection Submissions, RR Vol. III at 53-75. See also: Jury Selection Ruling, RR Vol. I at 2-4. 42 Fleet, Cr-ex., AR Vol. III at 74 (I. 9-32). 43 Clark, Exam. in-Ch., AR Vol. VII at 108 (I. 9) to 110 (I. 10). 44 Grant, Cr-ex., AR Vol. V at 48 (I. 24-32) to 49 (I. 1-3). 45 Fleet, Cr-ex., RR Vol. I at 25-28; Letter from G. Kemp to L. Gray, RR Vol. I at 143; Letter from G. Kemp to D. McDermott, RR Vol. I at 145. 46 Letter from V. Prasad, RR Vol. II at 29. 47 Fleet, Cr-ex., AR Vol. III at 78 (I. 20-25); see also Photograph depicting Peter Grant's home and golf course in 2001, AR Vol. XI at 145. 10
No environmental studies were conducted, no public consultation process occurred nor did Grant tell anyone he was going to tum it into a golf course. He just "dreamt up" a use to get the land.48
30. Beginning in 1998, Grant has held the conclusion of an annual charitable golf tournament at the course, which he calls Frog's Breath.49 It was widely known that Premier Harris had attended the tournament and been a guest at Grant's home.50
(f) Proposed expansion of Grant's personal golf course
31. In January 1998 Grant applied to the MNR to purchase 10.5 hectares of Crown land. Grant also planned to purchase 13.5 hectares of adjacent private land. This time he disclosed his plan - to expand his personal golf course to a "world class" nine holes. The new course would be ten times larger than what he built in 1997.51 Neighbouring cottagers objected and wrote many letters opposing the development. 52 Before the application could proceed, however, mining rights issues had to be resolved, which took until May 2000.53 Grant then retained environmental consultants and golf course planners. Their reports were submitted to the MNR in late November 2000.54 Cottagers again objected and, in late 2000 and early 2001, about 30 more letters were written to the MNR.55 Concerns in cottagers' letters included:
• Water levels: the quantity of water needed to maintain the golf course and the resulting effect on the lake;56
• Clearing of Land: the clearing of trees, blastin~ and noise pollution required to construct the golf course and subsequent erosion; 7
• Water Quality: "It goes without saying that this runoff contains pesticides which damage the lake. Additional holes will cause additional lake contamination" and therefore "we have to protest the scheme most strongly,,;58
48 Grant, Cr-ex., AR Vol. V at 51 (I. 12) to 57; see also Fleet, Cr-ex., RR Vol. I at 40 then AR Vol. III at 78 (1.7). 49 McLeod, Exam. in-Ch., AR Vol. IV at 56-57. The Appellants indicate, at note 12 of their factum, that the charitable event has not been held the last two years. 50 Clark, Exam. in-Ch, AR Vol. VII at 128 (I. 24-32). 51 Letter from R. Fleet to S. MacFeeters, AR Vol. IX at 4; Fleet, Cr-ex., RR Vol. I at 48 and AR Vol. N at 46-48. 52 See letters from cottagers, AR Vol. XI at 147-169. 53 Fleet, Cr-ex., AR Vol. III at 80 (I. 16-31). 54 Letter from R. Fleet to D. Payne, RR Vol. II at 60; Letter to Township of Hudson, AR Vol. IX at 44. See also: Frog's Breath Golf Course Expansion Environmental Impact Study dated January 2001, AR Vol. IX at 156. 55 Cottagers' letters, AR Vol. XI at 170-205 and AR Vol. XII at 1-34. 56 Cottagers' letters, AR Vol. XI at 147,154, 157, 161, 172, 174, 176, 185, 188, and 195; AR Vol. XII at 14, and 26. 57 Cottagers' letters, AR Vol. XI at 147,156,157,159, 160, 172, 174, 176, 188, 191, 192, 193, 199-200, and 205; AR Vol. XII at 14, 16, 19-20, and 26. 11
• Preserving the character of the lake: "There goes my cottage experience,,;59
• Drinking Water: "What about our wells? Another Walkerton?" "Herbicides, pesticides, fertilizers, etc. will all wash into our lake, destroying the water quality and affecting all cottagers enjoyment of our sparkling clear water, which has always been a source of pride for us ... With Walkerton still fresh on everyone's mind, we must proceed with caution when it comes to water quality!,,;6o
• Grant's economic and political power: "Mr. Grant's money, the crucial economic importance of his numerous businesses to the region, and his political powers of persuasion will prove too much for Council to resist; and none of us on the lake can win - or even afford to fight - what one cottager terms 'a war of deep pockets",;61
• The unfair nature of the proposal: "Peter Grant feeling the need to expand his empire at the expense of all of the other tax-paying cottagers on the Lake with absolutely no benefit to them,,;62
• The timing of the application: "As usual, Mr. Grant makes golf course-related requests in mid-winter when a minimum of seasonal residents are in attendance at their cottages or in the area.,,63
32. Eighteen cottagers hired an environmental expert who said that the "development may have significant detrimental effects on Twin Lake" and that Grant's reports "are incomplete and contain internal contradictions which must be resolved.,,64 It was a long-standing controversy - indeed, Fleet acknowledged at trial that "some cottagers, many years later, still feel upset.,,65
(g) Grant's "privacy", libel chill, and disregard for others
33. Grant is a so-called "very private person".66 However, the conduct of this powerful man under the guise of protecting his "privacy" muzzled local scrutiny of his actions.
58 Cottagers' letters, AR Vol. XI at ISO, 156, 159, 161, 164, 173 (quoted), 176, 180, 181, 185,187,191,192,193,194,200 and 205; AR Vol. XII at 1-9,10, 16,26 and 28. 59 Cottagers' letters, AR Vol. XI at 155, 157, 172, 174, 176, 179-180, 181, 192, 194 and 205; AR Vol. XII at 15 (quoted), 17, 18 and 26. 60 Cottagers' letters, AR Vol. XI at 174 (quoted), 179 (quoted), 186-190, and 196; AR Vol. XII at 10, 14, 16,26,29. 61 Cottagers' letters, AR Vol. XI at 157 (quoted) and 173. 62 Cottagers' letters, AR Vol. XI at 149,157, 159, 161, 169, 179 (quoted), 185 and 192; AR Vol. XII at 18 and 21. 63 Cottagers' letters, AR Vol. XI at 172 (quoted), 177 and 180. 64 Letter to P. Ramsay from Dr. Hutchison, RR Vol. II at 89-90. See also: Clark, Exam. in-Ch., AR Vol. VII at 131 (I. 10) to 132 (I. 2). 65 Fleet, Cr-ex., AR Vol. III at 90 (I. 20-26). 66 Appellants' Factum at para. 15; Closing Address to the Jury by Counsel for the Plaintiffs, AR Vol. VIII at 210, I. 24-28; Grant, Cr-ex., AR Vol. V at 112 (I. 3) to 118 (I. 12). 12
34. Local newspapers do not scrutinize or criticize Grant or GFP, and Grant has a strict policy prohibiting interviews with the local paper. Grant has sued the local papers "and got paid". Grant said "they have learned their lesson the hard way" and he makes sure that they "don't publish anything that goes on in my world". 67
35. Dr. Clark was also sued by Grant in this action. 68 She then felt unable to participate in the ongoing public consultation about Grant's proposal. Dr. Clark stepped down as a Director of the Hudson Lakes Association and stopped writing articles for its newsletter, and retracted a letter of objection she sent to the Town Council. She was "afraid" that she would lose her insurance coverage (which covered libel actions) "if! spoke out against the project.,,69
36. The article itself referred to a local councillor who was unwilling to say whether he supported the development: "I'm in a bit of a bind here ... My wife works for him (Grant). Employment is very hard to get up here." 70
37. Grant's unwillingness to disclose his affairs or plans, and his muzzling of scrutiny, are consistent with the sentiments of cottagers that Grant would get his way. For example:
• Grant said that, unless required, he doesn't "tell anybody anything until [he] get[s] it done.,,71
• Grant admitted he did not tell his neighbours anything before acquiring the land on which the 3-hole golf course was built: "I didn't talk to anybody. I was dealing with the M.N.R., why would I tell anybody anything? I am a private guy, I tell nobody nothing. They dream about what I am going to do up there. That is part of the exercise ofliving in the area."n
• Though the golf course was to be for his own "personal" use, Grant did not attend any public meetings and he never read any of the letters opposing the golf course. To Grant, the cottagers' objections were "background noise" and "chatter in the background" and not worth his attention.73
67 Fleet, Cr-ex., AR Vol. III at 162-165; Grant, Cr-ex., AR Vol. V at 99 (I. 16) to 103 (I. 32). 68 Grant settled with Clark just before the trial was to begin: Clark, Exam in-Ch., AR Vol. VII at 136 (I. 24) to 137 (I. 2). 69 Clark, Exam. in-Ch., AR Vol. VII at 137 (I. 30) to 139 (I. 10). 70 Schiller tried to interview another local politician, but his call was not returned: Schiller, Cr-ex., AR Vol. VII at 36 (I. 7-14). 71 Grant, Cr-ex., AR Vol. V at 51 (I. 13) to 53 (I. 16). 72 Grant, Cr-ex., AR Vol. V at 56 (I. 14) to 57 (I. 13). 73 Grant, Cr-ex., AR Vol. Vat 70 (I. 31) to 77 (I. 6), 91 (I. 23) to 93 (I. 13),96 (I. 26) to 99 (I. 7). Grant was repeatedly impeached in admitting he held these views. 13
(h) Schiller's attempts to interview Grant in February
38. On February 1,2001, while in New Liskeard, Schiller phoned Grant's office to try to set up an interview to hear Grant's side of the story: " ... right out of the gate I wanted to get both sides of the story. Clearly, the cottagers had their concerns, that was clear, but it goes without saying Mr. Grant would have had his point of view. So, right away I realized I've got to - I've got to contact him, I've got to get both sides.,,74 Schiller spoke to Bob Fleet, who was handling the application for Grant. They agreed to a telephone interview the following morning. But the next day Fleet was no longer willing to speak. Grant had forbidden it. 75 Schiller was told to "put your questions in writing and we will be happy to respond to them.,,76 Fleet told Schiller that the public record was available at the MNR office.77 Fleet testified that this was the only time Grant had asked a reporter to put questions in writing.7s
39. On February 8, Schiller wrote requesting an interview: "I intend to write an article for my newspaper examining, among other things, the issues arising from this plan.,,79 Schiller "wanted to make absolutely sure that Mr. Grant had an opportunity ... to tell me what he felt I needed to know and - so that I could put that in the article. I wanted his point of view."so The very next day, however, Peter Downard, Grant's lawyer, responded by referring Schiller to the "public record" and saying that "Grant would give consideration to answering any questions you have to put to him in writing."Sl On February 13, Schiller wrote to Grant asking him some questions.s2 Mr. Downard responded the next day: "Our client's business affairs are private. His
74 Schiller, Exam. in-Ch., AR Vol. VI at 17 (I. 11-16). 7S Fleet, Cr-ex., AR Vol. III at 157 (I. 6) to 160 (I. 25). 76 Schiller, Exam. in-Ch., AR Vol. VI at 31 (1. 22) to 32 (1. 4); Notes of Bob Fleet, AR Vol. X at 95. 17 Schiller, Exam. in-Ch., AR Vol. VI at 41 (I. 9-23); Notes of Bob Fleet, AR Vol. X at 97. Although Fleet suggested Schiller was "bullying" in. the call after being rebuffed, in cross-examination he retreated, agreeing Schiller was "frustrated" and "persistent" and that they were interrupting each other: Fleet, Cr-ex., AR Vol. III at 159 (I. 14) to 161 (I. 32). Schiller said he was "polite and persistent": Schiller, Exam. in-Ch., AR Vol. VI at 32 (1. 5-27). 78 Fleet, Cr-ex., AR Vol. III at 162 (I. 1-10). 79 Letter from Bill Schiller to Peter Grant dated February 8, 2001, AR Vol. X at 117. 80 Schiller, Exam. in-Ch., AR Vol. VI at 52 (I. 26) to 53 (I. 5). 81 Letter from Peter.Downard to Bill Schiller dated February 9,2001, AR Vol. X at 120. The Appellants rely on a statement in that letter that Grant's application was subject to "public process and full public scrutiny" (in their factum at para 31). The Appellants did not. however, ask Schiller about this part of the letter at trial. 82 Letter from Bill Schiller to Peter Grant dated February 13, 2001, AR Vol. X at 121; Schiller, Exam. in Ch., AR Vol. VI at 53 (I. 22-31): Schiller was hoping he "might catch his interest and maybe impress him that I was being persistent and not taking 'no' for an answer". 14
personal affairs are not a matter which he is prepared to discuss with yoU.,,83 At trial, however, Grant admitted that his proposal to buy Crown land was "a public matter".84
(i) Schiller continues to investigate
40. Over the next few months Schiller gathered more information and documents.85 He visited Charlotte McCullough, an elderly cottager next door to Grant. 86 He interviewed Butch Windsor, the Town's planning consultant,87 obtained water permits from the MOE relating to the property, did corporate searches relating to Grant's companies,88 and spoke at length to MNR officials.89 Schiller collected more than 180 documents during his research.90 He contacted David Moote, Grant's golf course consultant, but Moote would not speak to him: "Nobody is going to be talking to you". Fleet had told the consultants not to speak to Schiller.91
41. On May 24 Schiller received a Notice of a Public Meeting for June 23, 2001, to amend the Town's by-laws to allow the expansion of the personal golf course. Schiller sought further updates on the proposa1.92 He also worked with his editor, Colin MacKenzie, on a draft of the story.93 In response to the Notice, the Town received 15 more letters opposing the development. Dr. Clark testified that the cottagers continued to have fears that the proposal was a done dea1. 94
(j) Additional attempts to contact Grant in June
42. In a letter dated June 1, Schiller again wrote to Grant. He asked Grant 16 detailed questions about the proposed expansion of the golf course, his connections to the Conservatives and Mike Harris, and his reaction to cottagers' concerns. One of the questions stated: "Your plans for a nine-hole golf course have inspired opposition among residents who live nearby.
83 Letter from Peter Downard to Bill Schiller dated February 14,2001, AR Vol. X at 122. 84 Grant, Cr-ex., AR Vol. V at 106 (1. 13) to 107 (1. 13). 8S Letter to P. Ramsay from Dr. Hutchison, RR Vol. II at 83; List from Elections Ontario, RR Vol. II at 91; Map of proposed golf course from Township, RR Vol. III at 16; Faxes from R. Ptok to B. Schiller, undated, AR Vol. XI at 26 and RR Vol. II at 174. 86 Schiller, Exam. in-Ch., AR Vol. VI at 69 (I. 10-29), Reporter's Notebook of Bill Schiller, AR Vol. IX at 143. Grant disliked her as she was "unhappy" because she was "old, unmarried and a school teacher": Grant, Cr-ex., AR Vol. Vat 94 (I. 12) to 95 (I. 1). 87 Schiller, Exam. in-Ch., AR Vol. VI at 65 (I. 16) to 66 (I. 2). Letter from the Plantario Group Ltd. To Reeve, AR Vol. X at 59. 88 Schiller, Exam. in-Ch., AR Vol. VI at 79 (I. 26) to 83 (I. 8); Corporate Profile Report for GFP, RR Vol. III at 18; Permit to take water, RR Vol. II at 38 and 42. 89 Schiller, Exam. in-Ch., AR Vol. VI at 40 (I. 10) to 43 (I. 19). B. Schiller transcript of interview with MNR, AR Vol. X at 100. 90 Schiller, Exam. in-Ch., AR Vol. VI at 46 (I. 26) to 47 (I. 5); Schiller, Cr-ex., AR Vol. VII at 47 (I. 5-22). 91 Schiller, Exam. in-Ch., AR Vol. VI at 73 (I. 13) to 74 (I. 18); Fleet, Cr-ex., AR Vol. III at 170. 92 Two notices of Township of Hudson regarding public meeting, AR Vol. XI at 49; Schiller, Exam. in-Ch., AR Vol. VI at 90 (I. 19) to 94 (I. 12). 93 Schiller, Exam. in-Ch., AR Vol. VI at 87 (I. 3) to 88 (I. 20); Reporters' Notebook, AR Vol. XI at 33-34. 94 Cottagers' letters, AR Vol. XII at 31-76; Clark, Exam. in-Ch., AR Vol. VII at 134 (I. 28-32). 15
They have environmental, social and cultural concerns. What do you have to say to those that oppose your plan?" 95
43. On June 5, Grant's lawyer again replied: "The matters referred to in your letter that may be of public interest are matters of public record to which you have access. The remaining matters are personal, and our client does not intend to discuss them with you.,,96 Undeterred, Schiller asked more questions in writing, this time relating to the construction of the original 3- hole golf course, and other issues relating to Grant's use and acquisition of Crown land in the 1990s.97 Grant's lawyer responded, threatening a libel suit.98 When asked if this threat deterred him, Schiller responded: "nobody has a veto on a story. . .. If I were to stop and not write because somebody threatened to sue me, then what's a newspaper for? This is important work. This involved a public interest matter. I took my job seriously.,,99
(k) Grant's attempt to block and detain the Star photographer
44. In early June the Star sent a photographer, Mike Slaughter, to take pictures of Grant's property and the golf course for the article. Grant noticed Slaughter driving down the public road past his house to Charlotte McCullough's property. 100 The photographer stopped and took "ten steps off the road" 101 to take pictures ofthe golf course. Grant also saw him later taking pictures from a neighbour's canoe on the lake. Grant had a "gut feeling" that the photographer might be from the Toronto Star, which Slaughter confirmed when he spoke to a Grant employee and gave out his business card, which Grant received that day.l02 Grant told Ted Webster, one of his
9S Letter from B. Schiller to P. Grant, dated June 1, 2001, AR Vol. X at 184-185. Schiller explicitly asked Grant about his financial contributions to the PC Party, Harris and John Snobelen (see Letter, questions 9-11). The Court of Appeal correctly held that it was incumbent on the judge to consider this evidence before concluding that Schiller "made no effort" to verify Grant's influence and ties to Mike Harris, and that he had failed to do so: Reasons of the Court of Appeal, AR Vol. I, p. 143-144, ~aras. 64-65. 6 Letter from Peter Downard to Bill Schiller dated June 5, 2001, AR Vol. X at 186. 97 Letter from Bill Schiller to Peter Grant dated June 8, 2001, AR Vol. X at 197. Questions related to whether Grant had lawfully built a tennis court on Crown land in the early 1990s, the first 3-hole course, and whether he had any water permits. 98 Letter from P. Downard to B. Schiller dated June 12,2001, AR Vol. XII at 78: "I must caution you that if those allegations are published our client will immediately take all appropriate steps to obtain redress for libel." In any event. no statements that Grant had begun building on land. or taking water, prior to obtaining the relevant authorizations were included in the article, even though, for example, Schiller had received confirmation from MNR officials that Grant had indeed built his tennis court on Crown land without first obtaining proper approval: see Bill Schiller transcript of interview with MNR, AR Vol. X at 111-112. 99 Schiller, Exam. in-Ch., AR Vol. VI at 114 (I. 3-10). 100 Grant, Cr-ex., AR Vol. V at 130-131. 101 Grant, Exam. in-Ch., AR Vol. V at 38 (I. 24-31). 102 Grant, Exam. in-Ch., AR Vol. V at 34 (I. 21) to 40 (I. 15); Grant, Cr-ex., AR Vol. V at 133 (I. 6-21). 16
maintenance employees, to "go and find out who that fellow is and what's he doing" and to "try to keep him here.,,103
45. Webster, in responding to a leading question by plaintiffs' counsel, denied driving the photographer off the road. 104 However, cross-examination (which was not referred to in the trial judge's charge to the jury10S) put the event in a very different light, based on Webster's own notes made at the time of the incident:
• Slaughter was driving along a public gravel road. There were no private property signs. There was no fence around the golf course. 106
• Grant told Webster to "find the car and block it off until the police arrived" .107
• Slaughter was not trespassing but was standing by the side of the public road, on the swale, taking pictures.108
• When Webster called Grant after speaking to Slaughter, Grant was "disturbed" and "steamed up". He has "a bit of a temper". Grant again told Webster to "block him" and "detain him". 109
• Webster stopped his truck in front of Slaughter'S parked car. He pulled out onto the narrow gravel road as Slaughter started driving in order to continue to ''try to detain or try to block him". Webster drove directly into the middle of 0 the gravel road to get "in his way". 1l
• Webster's truck was an extra-wide, large one-ton pickup truck with dual-rear wheels (described as a "dually" in his notes ).111
• Webster knew Slaughter wanted to pass but did not move over to give him room. He agreed that when Slaughter tried to pass him Slaughter "narrowly
103 Grant, Exam. in-Ch., AR Vol. V at 3S (I. 23-30); Grant, Cr-ex., AR Vol. V at 134; Webster, Exam. in-Ch., AR Vol. N at IS7 (1. 16-17). 104 Webster, Exam. in-Ch., AR Vol. IV at 164-16S. 105 The judge reviewed the cross-examination of every other witness and refused to correct this following his charge. Charge to the Jury, AR Vol. I at 32-33; Objections to Charge, AR Vol. I at 99-100; Ruling on Objections to Charge, AR Vol. I at 108-109. The Court of Appeal correctly found that "this evidence was important to the defendants" and that "it is important that a trial judge fairly summarize the evidence": Reasons of the Court of Appeal, AR Vol. I, p. ISO-lSI, paras. 9S-96. 106 Webster, Cr-ex., AR Vol. IV at 168 (1. 16) to 169 (1. 10); Grant, Cr-ex., AR Vol. V at 130 (I. 21-2S) and 131 (I. 12-32). 107 Webster, Cr-ex., AR Vol. V at 4 (1. 17-30). 108 Webster, Cr-ex., AR Vol. V at 6 (I. S-20) and 14 (1. 17-30). 109 Webster, Cr-ex., AR Vol. V at 7 (I. 2S) to 8 (1. IS) .. 110 Webster, Cr-ex., AR Vol. V at 11 (1. 23) to 12 (1. 21). 111 Webster, Cr-ex., AR Vol. V at 16 (I. 6-14),12 (1. 27-28). 17
missed the ditch" and had been "right on the edge of the road, if not almost going off the road".112 • Webster agreed he "wouldn't have minded so much if [Slaughter had] gotten in an accident, because then he would have stopped", as long as he didn't hit Webster. Webster agreed this was not how he normally drives. 113 • Webster never asked Slaughter to wait or told him police had been called. 114 Webster followed Slaughter for "give or take" ten kilometres at a srseed "in • 1 excess of the speed limit". A separate Grant car continued the chase. 5 116 • The police were called but no charges were ever laid.
46. Schiller spoke with Slaughter and the O.P.P. after the incident. 117 Peter Downard wrote to the Star's publisher, John Honderich, accusing Slaughter of trespassing and demanded the film. The Star's counsel responded. ll8 Slaughter subsequently moved to the United States and did not testify,119 nor did a Grant employee, Ron Pacaud, who observed the incident and Webster acknowledged still lives in the area. 120 The Star only published an aerial photograph of Grant's property.
0) Publication of the article - June 23, 2001
47. The article giving rise to this action, entitled "Cottagers teed off over golf course" was published on June 23, 2001, the same day as the Township meeting. 121 Grant learned of the article that morning from his lawyer, Peter Downard, who came up from Toronto to attend the public meeting.122 Grant did not attend the meeting. However, Schiller did, and tried to speak with one of Grant's consultants, Mr. Michalski, but Grant's lawyer intervened. Schiller then
112 Webster, Cr-ex., AR Vol. V at 15 (I. 22) to 17 (I. 7). 1 \3 Webster, Cr-ex., AR Vol. V at 17 (1. 22) to 18 (1. 32). 114 Webster, Cr-ex., AR Vol. V at 19 (I. 23-31). 115 Webster, Cr-ex., AR Vol. V at 20 (I. 17) to 21 (I. 21); Webster, Exam. in-Ch., AR Vol. IV at 167 (I. 4-10). 116 Webster, Cr-ex., AR Vol. IV at 171 (I. 6-14); see also Grant, Cr-ex., AR Vol. V at 135 (I. 3-18), who said he did not ask that charges be laid. 117 Schiller, Exam. in-Ch., AR Vol. VI at 104 (I. 12) to 106 (I. 2). 118 Four letters between Grant's and the Star's counsel, dated June 7,8, 11 and 12,2001, AR Vol. X at 187,193,198 and 202. 119 Schiller, Exam. in-Ch., AR Vol. VI at 105 (1. 5-9). 120 Webster, Cr-ex., AR Vol. IV at 169 (I. 23) to 170 (I. 16), AR Vol. V at 10 (I. 4) to 11 (1. 22) and 16 (1. 2-23). 121 Saturday Star newspaper article by Bill Schiller dated June 23, 2001, AR Vol. XII at 206-207 and AR Vol. XI at 6-12. 122 Grant, Exam. in-Ch., AR Vol. Vat 32 (I. 22-32). 18
wrote an article, "Not on my lake, cottagers argue", published the next day, reporting on the public meeting,123 over which Grant also sued but which he did not pursue at trial.
48. The June 23 article, contrary to the suggestion of the Appellants in their factum, was a fair and balanced, lengthy feature story that contained no factual errors. It accurately reported Grant's financial support for Mike Harris, the Conservative Party and John Snobelen, the Minister of Natural Resources. The story noted the fears of cottagers for their environment and water supply ("with Walkerton still fresh on everyone's mind"), described Grant's very private golf course, his unwillingness to speak to the Star and the incident with the photographer. It set out details of the proposed development, referred to the Osprey Links article and the fears it raised - including Lorrie Clark's comment - and discussed the role of the MNR. The background to the development was reviewed, and the "scientific battle lines" were described - the expert reports on both sides. Grant's economic influence, as well as his local philanthropy was described, followed by the views and concerns of many cottagers. The story makes clear the development is not a "done deal" and that the normal process is being followed. It indicates that Grant's consultants are preparing a response to the MNR's concerns, and later in the story Schiller writes: "It's not okay yet. The Harris government has not sold the property to him." Schiller also explained why he did not call Harris or Snobelen, as he was focused on the story of the cottagers and Grant. 124
49. Schiller explained that Dr. Clark's statement that "everyone thinks it's a done deal" "was a very sincerely held opinion." It "expressed a feeling that I was exposed to when I spoke to other cottagers,,125 in researching the story. The Appellants complain, however, that Schiller did not include Clark's statement, in a separate paragraph of her email, that "Everyone suspects - although I do grant that this is perhaps all unfounded - that there may be political pressure on the MNR people to give Mr. Grant what he wants.,,126 Schiller testified this was a separate allegation
123 Schiller, Exam. in-Ch., AR Vol. VI at 97 (1. 21) to 98 (1. 6); Toronto Star newspaper article by Bill Schiller dated June 24, 2001, AR Vol. XI at 20 and 21-23. 124 Article, AR Vol. XII at 206-207; Schiller, Cr-ex., AR Vol. VII at 65 (1. 3) to 66 (1. 13). 125 Schiller, Exam.in-Ch., AR Vol. VI at 107 (1. 12-26). 126 E-mail from Lorrie Clark to B. Schiller, AR Vol. X at 78. 19
127 of fact, and as he did not have any evidence of political pressure on the MNR he left it OUt. Schiller's exclusion of that statement was entirely reasonable - indeed responsible - but was ignored by the judge, as noted by the Court of Appeal. 128
PART II - RESPONDENTS' POSITION ON THE APPELLANTS' QUESTIONS
50. The Star's position respecting the three issues raised by the Appellants is as follows:
(1) The Star agrees with the Appellants that the Court of Appeal erred in holding that a new trial was necessary for the jury to decide the meaning of the words, but for different reasons, as set out in the Star's statement of issues, below;
(2) The Court of Appeal was correct in reviewing the trial judge's application of the defences of qualified privilege and responsible journalism, which are questions of law, and on any standard of review was correct in holding that the trial judge failed to properly apply and consider the responsible journalism defence;
(3) The Court of Appeal applied the proper standard of review in concluding that the trial judge made many serious errors in his charge, including misstating the law respecting the presumption of falsity, the defence of fair comment, and the test for malice, as well as unfairly summarizing the facts which, individually or together, at the very least may, and almost certainly would, have affected the verdict.
51. The issues which the Star submits are raised by this case, and the manner in which they are addressed in this Factum and the Factum on Cross-Appeal, are as follows:
1. Fair Comment and Malice
(a) The trial judge and the Court of Appeal ought to have dismissed the action on the basis that the "impugned statement" was clearly a comment or opinion which a person could - and did - honestly hold on a matter of public interest, based on facts set out in an entirely accurate article, published in circumstances where there was no "probability" of malice. These issues should not have gone to the jury at all. See Factum on Cross-Appeal, paras. 99-111, below.
(b) The Court of Appeal correctly held that the trial judge made serious legal errors in his charge to the jury on the defence of fair comment and on the issue of malice, such that it may have affected the jury's verdict and that a new trial is required. See paras. 52-66, below.
127 Schiller, Exam. in-Ch., AR Vol. VI at 109 (1. 1-26); Schiller, Cr-ex., AR Vol. VII at S9 (1. 23) to 60 (1. 24) .. The trial judge failed to consider this evidence: Reasons of the Court of Appeal, AR Vol. I, p. 144, para. 66. Of course, at trial, some evidence suggesting that political pressure may have existed was disclosed: see above, para. 24. 128 Reasons of the Court of Appeal, AR Vol. I, p. 144, para. 66. 20
2. Responsible Journalism
(a) The defence of responsible journalism in the public interest should be adopted by this Court. This is addressed at paras. 67-93, below.
(b) The trial judge and Court of Appeal ought to have applied the defence of responsible journalism in the public interest to dismiss the action. Although the Court of Appeal correctly found that the trial judge made serious errors of law in failing to properly consider the defence (see paras. 67-93, below), the Star submits in its cross-appeal that the Court of Appeal erred in directing a new trial in order for the jury to determine the meaning of the "impugned statements" before a judge considers the responsible journalism defence. The application of the defence is a question of law for the judge. Juries should not be asked to determine a "single meaning" of words, as this is inconsistent with the flexible balancing of competing Charter values that must be undertaken by a judge in applying the defence. This is addressed in the Factum on Cross-Appeal, paras.l12-122, below.
3. Other Errors
(a) Having regard to all the other and additional errors made by the trial judge in his conduct of the case, a new trial should not be ordered and the action should simply be dismissed. See Factum on Cross-Appeal, paras. 123-138, below.
PART III - STATEMENT OF ARGUMENT
1. The charge on fair comment and malice was flawed
52. The Court of Appeal correctly held that the trial judge's charge to the jury on the defence of fair comment, in repeating many (at least six) times that the test was what a "fair-minded" person would believe, was erroneous and may have affected the verdict. 129 WIC highlights the trial judge's serious legal errors respecting fair comment, and malice. WIC also confirms that the defence of fair comment so clearly applied in this case that the issue should have been removed from the jury. This issue is addressed in the Factum on Cross-Appeal, below at paras. 99 to 111.
53. The contrast between this case and WIC is instructive. In WIC, statements made as part of a "campaign" to harm the plaintiff's reputation, likening the plaintiffs tactics to those of Hitler and the Ku Klux Klan (which were found to mean that she "would condone violence"), were found by the Court to be fair comment. 130 In contrast, in Grant an opinion, based on proven
129 Reasons of the Court of Appeal, AR Vol. I, p. 148, para. 83. In a short 5 pages of the transcript, the trial judge used "fair minded" six times and the word "fair" on its own many times: Charge to the Jury, AR Vol. I at 83-87. 130 WIC, supra at para. 10, ABA Tab 35 21
facts, that opponents of a proposed development thought it was a "done deal" resulted in a $1.475 million damage award. The verdict evidences "an overly solicitous regard for personal reputation" and improperly chills discussion and debate "on matters of legitimate public interest. ,,131
(a) The "fair-minded" charge is clearly wrong
54. The Court of Appeal correctly found the judge's repeated references to the "fair-minded person" test to be wrong.132 In WIC, Binnie J. refers to the "ill-defined line of 'fair mindedness"', and says "a qualitative standard such as 'fair minded' should be resisted.,,133 The references in this case to "fair-mindedness" nullified the defence, especially as the judge made no mention of the principles in the classic description of the defence found in Diplock J.'s well known jury instruction, which this Court has previously called "a clear statement of the nature of the defence":
But the expression "fair comment" is a little misleading. It may give you the impression that you, the jury, have to decide whether you agree with the comment, whether you think it is fair. If that were the question you had to decide, you realize that the limits of freedom which the law allows would be greatly curtailed. People are entitled to hold and to express freely on matters of public interest strong views, views which some of you, or indeed all of you, may think are exaggerated, obstinate or prejUdiced, provided - and this is the important thing - that they are views which they honestly hold. The basis of our public life is that the crank, the enthusiast, may say what he honestly thinks just as much as the reasonable man or woman who sits on a jury, and it would be would be a sad day for freedom of speech in this country if a jury were to apply the test of whether it agrees with the comment instead of applying the true test: was this an opinion, however exaggerated, obstinate or prejudiced,. which was honestly held by the writer?" 134
55. The trial judge was specifically asked to charge the jury in this way and not to use the "epithet" "fair", but failed to do so. He also failed to instruct the jury on the purpose and scope
\31 Ibid., at paras. 2, 15 [emphasis in original], ABA Tab 35 \32 Charge to the Jury, AR Vol. I at 83-87; Reasons of the Court of Appeal, AR Vol. I, p. 147-148, paras. 79-83 \33 WIC, supra at para. 28, ABA Tab 35 134 Silkin v. BeaverbrookNewspapers Ltd., [1958] 1 W.L.R. 743 at 747 (Q.B.) [Silkin], RBA Tab 78 [emphasis added]. See: Cherneskeyv. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067 at 1073, RBA Tab 14. 22
of the defence, again as he was asked to do.l35 The repeated references to "fair minded", among other errors, meant that "the jury was deprived of the ability to perform the 'judicial duty assigned to them.',,136
56. Though WIC confirms an objective test requiring only that the opinion could be honestly held, the defence still protects even "outrageous and ridiculous"l37 opinions - a point never made in the charge. The charge to the jury makes no mention at all of freedom of expression or of the press; instead, at the outset of his charge on the law the trial judge placed great emphasis on the importance of reputation, noting: "That is what this case is all about. " 138
57. Lorrie Clark's honest belief in what she said - which the Judge did not permit to be adduced directly and was not referred to in the charge, although it was accepted and not even challenged by the plaintiffs139 - meets the objective test. As Bertrand Russell observed, "the existence ofa thing is absolute proof ofits possibility". 140 Clark honestly believed what she said, Schiller published the statement because it was "a very sincerely held opinion" which "expressed
135 In Reynolds, supra at 193, ABA Tab 29 Lord Nicholls stated that "the time has come to recognize that...the epithet 'fair' is now meaningless and misleading." Defendants' Pre-Charge Submissions, AR Vol. VII at 162-163; Defendants' Summary ofthe Law, RR Vol. III at 41-43. The judge also undermined the credibility of the defence, as counsel for the defendants in his closing address had read the Sillan quote to the jury, saying he expected they'd also hear this from the judge, from whom they must take the law: see Defendants' Closing Address to the Jury, AR Vol. VIII at 124-125. In not saying any of this to the jury, the trial judge left the jury with the impression that defendants' counsel had misled them. 136 Pereira v. Hamilton Township Farmers' Mutual Fire Insurance Co., [2006] 0.1 No. 1508 at para 82 (Ont. C.A), RBA Tab 58, see also paras. 56-57, 69-70, 73-77 and 81-84. Counsel is not obliged to continually or repeatedly press a point that a judge has clearly rejected: Redican v. Nesbitt, [1924] S.C.R. 135 at p. 156, RBA Tab 66. The trial judge was keenly aware of the defendants' position regarding the "epithet 'fair"': Defendants' Pre-Charge Submissions, AR Vol. VII at 162-163; Defendants' Summary of the Law, RR Vol. III at 41-43. During the pre-charge submissions the judge asked counsel for the plaintiffs "You don't accept that 'fair comment' is a misnomer then?" (Question of Rivard J., RR Vol. III at 145 (I. 31-32)). In any event, counsel objected to the trial judge's unfair summary of Dr. Clark's evidence regarding her settlement statement, which may have impacted the jury's finding on the fact vs. comment issue (Objections to the Charge, AR Vol. I at 104 (I. 10) to 105 (I. 10)) as well as on the improper charge on malice (Objections to the Charge, AR Vol. I at 106 (I. 6-26)), among other things. The judge declined to correct these, or any other, errors: AR Vol. I at 108 (I. 15) to 109. 137 WIC, supra at para. 4, ABA Tab 35 138 The full passage of the trial judge was: "Our law recognizes that every person has the right to have the esteem in which he or she stands in the opinion of others unaffected by any false statement which discredits that person. Our law protects every person against damage to that person's character. That is what this case is all about." Charge to the Jury, AR Vol. I at 56 (I. 15-21) [emphasis added]. 139 Dr. Clark was not cross-examined on her belief in her statement. Counsel for the plaintiffs accepted Clark believed it: "I'm not going to attack Lorrie Clark's character or say that she didn't believe what she said she believed. But beliefs are subjective things. And when ... you're stating beliefs about what's in the mind of other people, that can be very subjective too": Plaintiffs' Closing Address to the Jury, AR Vol. VIII at 178 (I. 25-31). The plaintiffs essentially argued that Clark's belief was unreasonable given the "facts": see AR Vol. VIII at 178 (I. 25) to 179 (I. 29). 140 WIC, supra at para. 44, ABA Tab 35 23
a feeling I was exposed to when I spoke to other cottagers" 141 , and there was a basis in the facts on which that opinion could be - indeed was - honestly held.
58. Further, WIC recognizes that the "originator and the publisher of a defamatory comment play different roles" in response "to the need to protect free expression on matters of public interest in a democratic society.,,142 Accordingly, whether Bill Schiller believed the golf course proposal was in fact a "done deal" or not is irrelevant.143 Yet the judge's charge treated the comment as fact and emphasized that Schiller acknowledged that he could not prove it was a "done deal".l44 As Binnie J. stated in WIC:
"It seems to me that defamation proceedings will have reached a troubling level of technicality if the protection afforded by the defence of fair comment to freedom of expression (''the very lifeblood of our freedom") is made to depend on whether or not the speaker is prepared to swear to an honest belief in something he does not believe he ever said.,,145
(b) The failure to correctly or fairly explain the distinction between comment and fact
59. The distinction between comment and fact is addressed in the Factum on Cross-Appeal at paras. 100 to 103. The trial judge ought to have ruled that the statement "everyone thinks it's a done deal because of Grant's influence - but most of all his Mike Harris ties .... This is a development that is not in the public interest", was a comment or opinion, and not a fact, and should not have been left to the jury.
60. The failure of the trial judge to perform this gatekeeper function was made worse by his incorrect, confusing and inadequate charge on the distinction between comment and fact, which unduly favoured the plaintiffs. The jury was not told to 'generously interpret' the notion of comment or to "avoid putting the worst possible meaning on the words,,146; instead the trial judge emphasized that the defendant "must prove" the words are comment. 147 Curiously, the judge did
141 Schiller, Exam. in-Ch., AR Vol. VI at 107 (1. 12-26). 142 WIC, supra at para. 43, ABA Tab 35 143 Reasons of the Court of Appeal, AR Vol. I, p. 149-150, paras. 88,90,93 144 This also arose in the context of the judge's inadequate charge on the impact of s. 24 ofthe Libel and Slander Act, R.S.O. 1990, c.L.12, which codifies the point that it does not matter if Schiller did not share Dr. Clark's opinion. Charge to the Jury, AR Vol. I at 49 (I. 12-13), and 88 (I. 13) to 89 (1. 17). See: Defendants' Pre-Charge Submissions, AR Vol. VII at 163-165. 145 WIC, supra at para 35, ABA Tab 35 146 WIC, supra at para 56, ABA Tab 35 147 Charge to the Jury, AR Vol. I at 85 (I. 15-18). 24
tell the jury that the words "this is a development that is not in the public interest" was comment148 (to which no objection was made by plaintiffs' counsel), but this implicitly invited the jury to conclude that the first part of the quote was not comment. His repeated reference to the "Mr. X" example was, as the Court of Appeal noted, "not a neutral example" and was "diverting and unhelpful".149 This was made worse by the incorrect charge that the statement 1S1 was presumed to be false1so, which, like the charge on malice , also treated the words as if they were statements of fact, capable of being true or false.
(c) The failure to charge correctly on the facts supporting the comment
61. As argued in the Factum on Cross-Appeal at paras. 104 to 105, the comment clearly had a sufficient basis in the facts. However, the factual foundation and the "nexus or relationship"ls2 between the facts and the opinion were not reviewed in the charge, as is required 153, nor did the trial judge properly explain the import of s. 23 of the Libel and Slander Act - that the defendants do not have to prove all of the facts on which the comment is based - and link this to the article, which contained no incorrect facts. 154 The trial judge also failed to review the facts on which the opinion could be - and was - honestly held. In particular:
• The judge misleadingly told the jury that Dr. Clark, when settling the libel suit with Grant just before trial, admitted that she had "no information the Frog's Breath development was a 'done deal"'. This ignored the actual wording of the statement, which said that she had no information "that the Frog's Breath Golf Course expansion has, in tact, ever been a 'done deal' because of Peter
148 Charge to the Jury, AR Vol. I at 86 (I. 7-12). 149 Reasons of the Court of Appeal, AR Vol. I, p. 152, para 102. The judge gave the example of an article that states that Mr. X has overspent his travel budget on personal travel as well as that Mr. X is "liberating public money". The judge relied on this example not only in relation to defining what is defamatory (Charge, AR Vol. I at 59 (I. 15) to 60), and the notion of innuendo (Charge, AR Vol. I at 69 (1. 1-13», but also to explain elements of the defence of fair comment. The judge told the jury that a "libelous statement, that is the allegation of overspending and unauthorized travel in my example, must be proved to be true. The defence offair comment is a different matter entirely. And the example, it relates only to the words 'liberating public funds', the comment in question" (Charge, AR Vol. I at 83 (I. 18) to 85 (1. 12». This statement was particularly confusing and inappropriate in this case where a defamatory sting, if any, only arose from the comment itself and not from the underlying facts, as there is nothing defamatory in saying that someone has "influence" and "Mike Harris ties". ISO The trial judge told the jury that because he had found the words were capable of being defamatory they were presumed to be false. This is addressed in the Factum on Cross-Appeal, below at para. 124. See Charge to the Jury, AR Vol. I at 58 (I. 28) to 59 (I. 2), and 75 (I. 2-11). The Court of Appeal correctly held that this legal error may have affected the verdict: Reasons of the Court of Appeal, AR Vol. I, p. 151. para. 97-99. 151 See paras. 63 to 66 below. 152 WIC, supra at para 40, ABA Tab 35 153 See paras. 125, 127 in Factum on Cross-Appeal. 154 See below, paras. 125, 127 in Factum on Cross-Appeal, for submissions on the judge's duties in charging the jury. Charge to the Jury, AR Vol. I at 87-88. 25
Grant's Mike Harris ties". She never retreated from her opinion that people believed Grant would get his way. 155
• The judge ignored Clark's strong and credible testimony that her view was that the "dominant fear" and "primary sentiment" she heard in 2001 (both in January and June) was that "it was a done deal,,;IS6
• The judge prohibited Clark from explaining, directly, why she wrote what she did, and so such evidence was then (of course) not conveyed to the jury by the judge in his charge; 157
• No mention was made of the context, reported in the article, that the cottagers were acutely aware of, and feared, the parallels with nearby Osprey Links;
• Schiller's evidence that Clark's statement was "a very sincerely held opinion" and "expressed a feeling" he heard from others, too, was ignored. IS8
62. Where misdirections are errors of law, the standard of reVIew is correctness. IS9 Accordingly, the Court of Appeal was clearly correct in finding that the judge's errors in his charge on fair comment "may have affected the jury's verdicts." Indeed, the Court correctly found this to be so based on the "fair-minded" errors alone,160 and the appeal should be dismissed on the basis alone. As this Court has stated, the standard of review of a judge's charge to the jury is that "it is sufficient for the complaining party to show that a misdirection may have affected a verdict and not that it actually did SO.,,161
155 Clark, Exam. in-Ch., AR Vol. VII at 137 (1. 20-29); Charge to the Jury, AR Vol. I at 54 (1. 21-25). This was objected to at trial: Objections to Charge, AR Vol. I at 104-105, and was not corrected by the judge (AR Vol. I at 108-109). 156 Clark, Exam. in-Ch., AR Vol. VII at 128-129 (1. 4), 134 (1. 28-32) and 137 (1. 27-29). Dr. Clark was barely cross-examined, and not on this issue. 157 Ruling of Trial Judge, AR Vol. VII at 127 (1. 23-32). The law is clear that "the defendant may introduce evidence of the personal belief of the person whose statement they published at the time it was made": Raymond E. Brown, The Law of Defamation in Canada, 2d ed., looseleaf(Scarborough: Carswell, 1999) [Brown], at 22-105, RBA Tab 89; Lee v. Globe and Mail (2001),52 O.R. (3d) 652 (Sup. Ct. 1.), at paras. 9-10, RBA Tab 42; Teskey v. Canadian Newspapers Co. (1989),68 OK (2d) 737 (Ont. C.A.) at 750, RBA Tab 85 158 Schiller, Exam. in-Ch., AR Vol. VI at 107. 159 Bevis v. Burns, 2006 NSCA 56 at para. 19 [Bevis], RBA Tab 6 160 Reasons of the Court of Appeal, AR Vol. I, p. 148, para. 83. 161 Leslie v. The Canadian Press, [1956] S.CK 871 at 874 [Leslie], RBA Tab 43. See also Schwartzv. De Pauw (1985),16 O.A.C. 66 (Ont. C.A.) at paras. 4, 8 (C.A.) [Schwartz], RBA Tab 74; Landolfi v. Fargione (2006), 79 O.R. (3d) 767 at paras. 121,125 (Ont. C.A.) [Landolfi], RBA Tab 40; Augustine Automatic Rotary Engine Co. o/Canada Ltd. v. Saturday Night Ltd. (1917),38 O.L.R. 609at618 (S.C. (A.D.» [Augustine], RBA Tab 5; Greenv. Miller (1903), 33 S.CK 193 at 203 [Green], RBA Tab 29 26
(d) Misdirections on malice
63. The Star addresses the test for malice at paras. 107-111 of the Factum on Cross-Appeal, as the trial judge should not have left malice with the jury, as argued at trial and on the appeal. Neither Court addressed this argument. However, the Court of Appeal correctly found errors in the charge on malice. As well, it held that the misdirections on fair comment may well have affected the jury's approach to malice. 162 The Court of Appeal identified the trial judge's incorrect emphasis on Schiller's lack of belief that the words were "true" (confusing comment and fact, since a comment is incapable of proof163), finding that his focus on "Schiller's honest belief in the truth of the statement to determine malice was misleading and potentially confusing".164 As the Court also noted: "The trial judge did not clarify at any stage that since Mr. Schiller was the conduit for the comment and not its maker, the fact that he did not honestly believe it could not be used as a foundation for finding malice unless in the context of the article, he had adopted the comment as his own.,,165
64. In leaving malice with the jury, the judge got the law seriously wrong. He told the jury that "malice has a very wide meaning", and includes "using language stronger in the circumstances than the case warrants" or, as he put it, language that is "excessive and strong.,,166 These incorrect statements167 suggest a very low and vague test, inconsistent with the wide scope of the defence of fair comment and provide inadequate protection for the expression of opinions on matters of public interest. The prejudice from this misdirection was made worse by the judge's failure to tell the jury that "fair comment" can be "exaggerated, obstinate or prejudiced."
65. The judge also erroneously told the jury that malice can be found "if the limits of the defendants' duty or interest are exceeded,,168 or if the defendant failed to "make inquiries that
162 Reasons of the Court of Appeal, AR Vol. I, p. 148, para. 85 163 See Factum on Cross-Appeal at paras. 101-102. See also Roger D. McConchie & David A. Potts, Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004) at p. 338 [McConchie & Potts], RBA Tab 90 164 Reasons of the Court of Appeal, AR Vol. I, p. 149, para. 88 165 Reasons of the Court of Appeal, AR Vol. I, p. 150, para. 93 166 Charge to the Jury, AR Vol. I at 89 to 90 (I. 9). The Court of Appeal erred in finding it was correct to charge the jury in this manner: Reasons of the Court of Appeal, AR Vol. I, p. 149, para. 88. 167Laufer v. Bucklaschuk (1999), 181 D.L.R. (4th) 83 at paras. 100-104 (Man. C.A.) [Laufer], leave to appeal to S.C.C. refused, [2000] S.c.c.A. No. 77, both decisions at RBA Tab 41; MacArthur v. Meuser (1997), 146 D.L.R. (4th) 125 (Ont. Gen. Div.), at 137 [MacArthur], RBA Tab 47, aff'd (2000),188 D.L.R. (4th) 191 (Ont. c.A.), RBA Tab 48 168 Charge to the Jury, AR Vol. I at 91 (I. 9-11) [emphasis added]. This instruction is clearly in error where the jury was not charged with qualified privilege, only fair comment. There is no "duty" or "interesf' to be considered. 27
were reasonable in the circumstances" or that there was "evidence that that defendant was reckless or indifferent as to whether the statement [without specifying what statement] was true or false.,,169 As well, the judge did not say that mere knowledge that an article may damage someone's reputation is not malice - as he was asked to doYo Instead, he told the jury that
Schiller "understood" that the proposal was not a "done deal" (treating the phrase as a fact), l7l and ignored Schiller's evidence that the statement was "a very sincerely held opinion" which "expressed a feeling that I was exposed to when I spoke to other cottagers.,,172
66. Further, as the Court of Appeal noted, the charge was unbalanced and unfair, referring to "the ten reasons,,173 the plaintiff said malice existed, but failing to refer ''to any of the defendants' counsel's submissions .... that they were not actuated by malice.,,174 The Court of Appeal noted the first of the so-called "ten reasons" dealt with Schiller's "honest belief' which "was not relevant if the purpose and effect of the story was to report the opinion of others" 175 as it clearly was, but the judge failed to address this in his charge. Further, none of the "ten reasons" met the "probability of malice" test, as each had explanations at least "more consistent ... with its non existence", supporting the conclusion that malice should not have gone to the jury at all. 176
2. The defence of responsible journalism in the public interest
67. The Court of Appeal correctly found that the trial judge failed to apply the defence of responsible journalism which, it noted, is a question of law. 177 Accordingly, the appeal should be dismissed. However, as the Star argues in its Factum on Cross-Appeal (paras. 112 to 122, below), the Court of Appeal should have applied the defence to dismiss the action and should not have ordered a new trial.
169 Charge to the Jury, AR Vol. I at 90 (1. 19-31). "[M]ere carelessness or negligence is not malice, nor may the failure to inquire into the truthfulness of certain statements": MacArthur, supra at 137, RBA Tab 47 170 Defendants' Summary of the Law, RR Vol. III at 48-49; Defendants' Pre-Charge Submissions, AR Vol. VIII at 2 (I. 24-29); Horrocks v. Lowe, [1975] A.C. l35 at 149 (H.L.) [Horrocks], RBA Tab 34 171 Charge to the Jury, AR Vol. I at 49 (1. 12-13). \72 Schiller, Exam. in-Ch., AR Vol. VI at 107. 173 Charge to the Jury, AR Vol. I at 89 (1. 19-21). 174 Reasons of the Court of Appeal, AR Vol. I, p. 149, para. 89. 175 Reasons of the Court of Appeal, AR Vol. I, p. 149-150, paras. 90-93. 176 Taylor v. Despard, [1956] O.R. 963 (Ont. C.A.), at 978 [Taylor], RBA Tab 82. See Factum on Cross-Appeal, below. 177 Reasons ofthe Court of Appeal, AR Vol. I, p. 144, para 68. 28
(a) The responsible journalism defence should be adopted by this Court
68. The Star submitted in Cusson that the public interest responsible journalism defence should be adopted as the law in Canada, and that this defence is to be preferred to an expanded traditional qualified privilege defence for "publications to the world at large". Responsible journalism provides protection for reputation that is lacking in the defence of qualified privilege which is based on a vague notion of an "occasion" where the privilege may arise. In contrast, the numerous Reynolds factors impose standards on journalists to ensure that reputations are protected from irresponsible reporting, while at the same time allowing the media to report on matters of public interest without undue fear of liability.
69. The Court of Appeal in Cusson correctly sees the adoption of the new defence as representing "a natural extension of the law as it has been developing in recent years, an incremental change 'necessary to keep the common law in step with the dynamic and evolving fabric of our society"'Ys Justice Sharpe continued:
[139]. ... It amounts to a sensible half-way house between the two extremes of the traditional common law no-fault liability on the one hand, and the traditional qualified privilege requirement for proof of malice on the other. The public interest responsible journalism defence recognizes that in relation to matters of public interest, the traditional common law unduly chills freedom of expression but, at the same time, rejects the notion that media defendants should be afforded a licence to defame unless the innocent plaintiffs can prove deliberate or reckless falsehood. It rights the common law imbalance in favour of protection of reputation and creates a proper balance between that value and freedom of expression. As Lord Nicholls put it in a subsequent decision of the Privy Council (Bonnickv. Morris & ars (Jamaica), [2002] U.K.P.C. 31 at para. 23):
Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege. If they are to have the benefit of the privilege journalists must exercise due professional skill and care.
[140] The public interest responsible journalism defence gives appropriate recognition and weight to the Charter values of freedom of expression and
178 Cusson, supra at para. 139, ABA Tab 9 29
freedom of the media without unduly minimizing the value of protecting individual reputation. It represents an appropriate adjustment to the priority accorded by the common law to reputation over expression in keeping with the need to achieve, in accordance with Charter principles, "a balance ... that fully respects the importance of both sets of rights" at issue: Dagenais, supra, at para. 72.179
70. In this case, Feldman J.A. noted that the new defence "is intended to strike a balance between the interests of individuals in protecting their reputations on the one hand, and the right of the public to access information on matters of legitimate public interest and the ability of the media to fairly and responsibly report on such matters on the other.,,180
71. Many of the submissions in Cusson addressed why a change to the common law of defamation is required to better reflect and balance Charter values.I81 Indeed, the House of Lords developed the Reynolds defence on the eve of the coming into force of the U.K. Human Rights Act. However, there are additional reasons why the defence should be adopted.
72. In Cusson, Justice Sharpe recognized that "adopting this defence shifts the focus of defamation law away from the truth and towards the conduct of the defendant".182 However, through the traditional defence of qualified privilege, the law of defamation has long protected untrue statements of fact where made in furtherance of some social, moral, business, financial, 1 legal or personal duty 83 , provided they are made without actual malice, i.e., that the person making them did not in fact know they were false or was not reckless to the truth or falsity of the statements. 184
73. The current law of defamation, absent the limited qualified privilege defence, chills speech because of its "zero tolerance" of factual errors. As Justice Sharpe stated in Cusson:
179 Cusson, supra at paras. 139-140 [emphasis added], ABA Tab 9 180 Reasons of the Court of Appeal, AR Vol. I at p. 135 , para. 31 181 Jameel, supra at paras. 38, per Lord Hoffman, and 129, per Lord Scott, ABA Tab 21 182 Cusson, supra at para. 142, ABA Tab 9. See also Gilles E. Neron Communication Marketing Inc. v. Chambre des notaries du Quebec, [2004] 3 S.C.R. 95, at paras. 61-62 [Neron], RBA Tab 26, which reflects the focus of Quebec libel law on the conduct of the journalist (although this Court should exercise caution in importing civil law concepts into the common law, just as common law concepts ought not be needlessly imported into the civil law (Neron, at para. 56)). 183 RTC Engineering Consultants Ltd v. Ontario (Solicitor General) (2002), 58 O.R. (3d) 726 (Ont. c.A.), at para. 16 [RTC Engineering], RBA Tab 73; McLoughlin v. Kutasy, [1979] 2 S.C.R. 311 at 321,323, RBA Tab 51, quoting from Adam v. Ward, [1917] A.C. 309 at 339, RBA Tab 1, that the defence can apply "even though his language should be violent or excessively strong" [emphasis added]; Brown, supra at 13-8 to 13-9, RBA Tab 89 184 As the Star submitted in Cusson, traditional qualified privilege provides inadequate protection for both freedom of expression and reputation. 30
The common law no-fault standard creates a powerful incentive to err on the side of caution and to avoid controversy. A judgment such as that in the case at bar sends a strong message: there is simply no margin for error or allowance for the expression of views honestly and reasonably held. A newspaper that has properly investigated the story and has every reason to believe it to be true still walks on thin ice. The fear or risk of being unable to prove the truth of controversial matters· is bound to discouraie the publication of information the public has a 1 legitimate interest in hearing. 5
74. Further, truth is not an absolute concept. As Lord Hobhouse stated in Reynolds:
Complete factual accuracy may not always be practically achievable nor may it always be possible definitely to establish what is true and what is not. Truth is not in practice an absolute criterion. Nor are the distinctions between what is fact and innuendo and comment always capable of a delineation which leaves no room for disagreement or honest mistake. The free discussion of opinions and the freedom to comment are inevitably liable to overlap with factual assumptions and implications. Some degree of tolerance for factual inaccuracy has to be accepted; hence the need for a law of privilege. 186
75. The existence of libel chill resulting from this "no-fault standard" is well-recognized in the jurisprudence. In Reynolds, Lord Nicholls observed that "[t]he common law has long recognised the "chilling" effect of this rigorous, reputation protective principle." He also noted that the "uncertainty [over the outcome of a court decision], coupled with the expense of court proceedings, may "chill" the publication of true statements of fact as well as those which are untrue." 187
76. Prior to Reynolds, in Derbyshire County Council, Lord Keith of Kinkel accepted that "the threat of civil action for defamation must inevitably have an inhibiting effect on freedom of speech." He continued:
What has been described as 'the chilling effect' induced by the threat of civil actions for libel is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of
185 Cusson, supra, at para 127 [emphasis added], ABA Tab 9 186 Reynolds, supra at 238, per Lord Hobhouse [emphasis added], ABA Tab 29. See also R. v. Zundel, [1992] 2 S.c.R. 731 at 758 per McLachlin 1. [Zundel], RBA Tab 65, in which the same point is made in noting "the difficulty of conclusively determining total falsity". The majority in Zundel also recognized the chilling effect caused by the difficulty in distinguishing between opinion and statements offact (see 768-769). 187 Reynolds, supra at 192, 202, per Lord Nicholls ofBirkenhead, ABA Tab 29 31
proving those facts is not available. This may prevent the publication of matters which it is very desirable to make pUblic. 188
77. The danger of a defamation law that provides "no margin for error,,189 also affects "those who may refrain from saying what they would like to because of the fear,,190 that they will be sued. This Court in WIC has acknowledged that "chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship. Public controversy can be a rough trade, and the law needs to accommodate its requirements.,,191 As Lord Nicholls stated in Reynolds: "In this regard it should be kept in mind that one of the contemporary functions of the media is investigative journalism. This activity, as much as the traditional activities of reporting and commenting, is part of the vital role of the press and the media generally". 192 The defence of public interest responsible journalism achieves that accommodation for misstatements of fact, appropriately balancing the benefits of free speech with protection of reputation to ensure that reputation is not merely "roadkill on the highway of public controversy". 193
78. The chilling effect of libel laws is seen in the evidence in this case. Grant acknowledged he had sued the local media into silence, he muzzled Dr. Clark, and others were afraid to speak out.194 Adopting this defence modifies the common law to accord with Charter values, as this Court did in Dagenais195 and in Hilll96 where, unlike this case, there was no evidence that could be relied on to make the change. 197
188 Derbyshire County Council v. Times Newspapers Limited and others, [1993] AC 534 9 (H.L.) at 547-548, per Lord Keith of Kinkel, RBA Tab 20 189 Cusson, supra at paras. 127-128, ABA Tab 9 190 Zundel, supra at 772, RBA Tab 65 191 WIC. supra at para. 15 [emphasis in original], ABA Tab 35 192Reynolds, supra at 200 [emphasis added], ABA Tab 29. See also Lord Nicholls' statement: "The press discharges vital functions as a bloodhound as well as a watchdog", Reynolds, supra at 205, ABA Tab 29 193 WIC, supra at para. 2, ABA Tab 35 194 See above, paras. 33-37. 195 Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, RBA Tab 18 196 Hill v. Church ofScientology of Toronto, [1995] 2 S.C.R. 1130 [Hill], RBA Tab 31 197 This Court modified the common law to conform with Charter values both in Dagenais, supra (at 877-878), RBA Tab 18, and Hill, supra (at paras. 153-154), RBA Tab 31, without discussion of specific evidence demonstrating that the common law rule was inconsistent with those values. In M (A.) v. Ryan, [1997] 1 S.C.R. 157 at paras. 23,29,30 and 35, RBA Tab 46, where the common law test for privilege was modified, the majority considered the potential effects on other sexual assault victims, and society at large, if there was no privilege over psychiatric treatment records without discussion of specific evidence as to those effects. In all these cases, the Court identified the competing interests at stake and considered the potential effects (both positive and negative) on those interests to determine what modification to the common law was required to redress the inconsistency with Charter values. 32
(b) The responsible journalism defence was raised in this case
79. The responsible journalism defence was raised by the Respondents at the outset of the litigation - in the Statement of Defence. 198 The issue, as well as the defence of qualified privilege, was fully litigated and argued at trial. The Court of Appeal correctly found that the trial judge erred in his consideration of the defence. His brief ruling on the issue (following extensive argument)199 "improperly tried to combine the two defences of qualified privilege and responsible journalism, rather than treat the new defence as a separate evaluation where the emphasis is on allowing more free and open reports on matters of public interest, as long as the reports are researched and published in a fair and responsible manner.,,200 Indeed, the trial judge's ruling did not mention the public interest responsible journalism defence at all- and to the extent the trial judge applied the Reynolds factors, he did so in a ''hostile,,201 and unreasonable way, which the Court of Appeal was correct to review and overturn.
(c) The responsible journalism defence is a question of law for the judge
80. In Reynolds, Lord Nicholls stated that the "balancing operation" in applying the defence of responsible journalism is "better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.,,202 This approach was followed in Jameel where the House of Lords had no difficulty in subjecting the judge's analysis to review effectively as a question of law?03 This is consistent with the application of the defence of qualified privilege, which is a question of law for the judge and not a jury, which includes determining not only whether the occasion is privileged, but also whether the scope of the privilege has been exceeded.204 Accordingly, Feldman J.A. was correct in stating that "the
198 Amended Statement of Defence, AR Vol. II at 31, para. 25 (traditional qualified privilege pleaded at para. 24). 199 Qualified Privilege Ruling, AR Vol. I at 2-6; Defendants' Pre-Charge Submissions, AR Vol. VII at 177 to 199, which included discussion of both Reynolds and Jameel; Defendants' Summary of Law, RR Vol. III at 44-47. 200 Reasons of the Court of Appeal, AR Vol. I, p. 142, para. 61. See also Reasons of the Court of Appeal, AR Vol. I, p. 144, para. 67 201 Jameel, supra. at para. 56, ABA Tab 21 202 Reynolds, supra at 205, ABA Tab 29 203 Jameel, supra at paras. 53-86, ABA Tab 21
204 Douglas v. Tucker, [1952] 1 S.C.R. 275 at 286 [Douglas], RBA Tab 21. In McConchie & Potts, supra at p. 371, RBA Tab 90, the authors summarize the decision of this Court in Halls v. Mitchell, [1928] S.C.R. 125 [Halls], RBA Tab 30, noting that in deciding whether or not an occasion is privileged," ... the court will consider every circumstance connected with the origin and publication of the defamatory expression, including: i) the content of the alleged defamatory expression; ii) who published it; iii) why it was published; iv) to whom it was published; v) under what circumstances it was published; vi) the nature of the duty which the defendant claims to discharge or the interest which the defendant claims to safeguard; vii) whether there are any 33
defence of responsible journalism is a question of law for the judge to decide.,,205 The standard of review, therefore, is correctness?06
81. As well, many of the Reynolds factors require analysis of matters that are also relevant to traditional qualified privilege, and reserved to the judge. For example, in determining whether the scope of qualified privilege has been exceeded the judge considers the content of the expression, and the circumstances of the publication including timing and urgency. The conduct of the defendant is also important. In Hill, for example, this Court found that qualified privilege was defeated because, among other things, Morris Manning "ought to have taken steps to confirm the allegations that were being made,,.207
82. There are other good reasons for treating the application of the defence of responsible journalism as a question of law for the judge. The purpose of the defence is to achieve a balance between competing legal rights and Charter values. It also raises the interest of the public's right to receive information - the public interest - an issue that transcends the parties. A responsible journalism case is "not simply a bilateral dispute between [the parties], but a multilateral dispute involving not only [the parties] but the broader ... public.,,208 What sets such a case apart "is its constitutional dimension, and the public's right to know, and the role of the press in discovering and getting the facts out into the public domain ... ,,209 Accordingly, consideration of responsible journalism is fundamentally different from, for example, negligence, where there is no "constitutional dimension".
statutory duties imposed on the speaker; viii) the urgency of the occasion; ix) the manner in which the defendant conducted him - or herself; x) whether or not the expression was published in breach of confidence; xi) whether or not the defendant officiously volunteered the information or whether it was in answer to an inquiry; and xii) whether or not what was published was germane and reasonably appropriate to the occasion." 20S Reasons of the Court of Appeal, AR Vol. I, p. 144, para. 68. 206 Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at para. 8, RBA Tab 35 207 Hill, supra at paras. 155-156, RBA Tab 31. See also Halls, supra at 141-142, RBA Tab 30, citing Greenlands' Case, [1916] 2 A.C. 15, per Lord Lorebum. 208 Per Binnie J. (in dissent): Neron, supra at para. 95, RBA Tab 26. The majority in Neron also recognized the important function the media plays in a democracy and, at para. 50, adopted Cory J.'s earlier statement that "It is the media that, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well-being." Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459 at 475, RBA Tab 11 209 Per Binnie J. (in dissent): Neron, supra at para. 110, RBA Tab 26. See also the majority judgment, per LeBel J., at para. 54: the competing values of freedom of expression and reputation "must be weighed against each other to find the necessary equilibrium ... " As McConchie & Potts have noted: "In many defamation lawsuits, the Court is required to engage in a delicate balancing exercise, the results of which may have broad implications for the way our democracy operates." McConchie & Potts, supra at 1, RBA Tab 90 34
83. The three-part test formulated in Jameel, and adopted by the Court of Appeal in Cusson and in this case, also supports the conclusion that the test is best considered by a judge as a question of law. The three elements of the test are: (1) is the subject matter of the article a matter of public interest?; (2) was the inclusion of the defamatory statement justifiable?; and (3) were the steps taken to gather and publish the information responsible and fair?210
84. Analysis of all three parts of the Jameel test requires the balancing of competing Charter values, including those of the public, who have an interest both in receiving information on public matters and in the protection of individual reputations from undue harm.211 This is a balancing operation that is not only, practically speaking, "better carried out by a judge in a reasoned judgment than by a jury,,212, but one which must be carried out by a judge who can address the "constitutional dimension". As the majority observed in Zundel, freedom of expression matters frequently involve a contest between majority (or accepted) and minority views of what is true or right. Freedom of expression "serves to preclude the majority's perception of 'truth' or 'public interest' from smothering the minority's perception.,,213
(i) The "public interest"
85. In the Court of Appeal, Justice Feldman correctly noted that "the judge decides, not whether the matter is one in which the public is interested, but whether it is, as a matter oflaw, a public matter.,,214 This is consistent with the defence of qualified privilege, where the judge determines, as a question of law, whether the occasion was privileged, which includes consideration of whether the matter is of "public interest".215 This is also the case for fair
210 Jameel, supra at paras. 48, 51, 53, ABA Tab 21; Cusson, supra at para. 100, ABA Tab 9; Reasons of the Court of Appeal, AR Vol. I, p. 139, para. 43 211 Indeed, the first Reynolds factor directs the judge to consider the public interest: "(1) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true." Reynolds, supra at 205, ABA Tab 29 212 Reynolds, supra at 205, per Lord Nicholls, ABA Tab 29. The practical effects of having responsible journalism decided entirely by the judge also should not be underestimated. As Lord Nicholls observed, over time a valuable corpus of case law will build up. Standards will be developed. This will allow potential parties to defamation actions to better assess their positions both before and during litigation. A reasoned decision by ajudge is also a greater safeguard of the parties' rights of appeal. 213 Zundel, supra at 753, RBA Tab 65 214 Reasons of the Court of Appeal, AR Vol. I, p. 138, para. 39 [emphasis added] 215 See, e.g., Douglas, supra at 286, RBA Tab 23, citing from Adam v. Ward, RBA Tab 1. "In Whiteley v. Adams, ... the law is thus laid down, 'Judges who have had from time to time to deal with questions as to whether the occasion justified the speaking or the writing of defamatory matter, have all felt great difficulty in defining what kind of social or moral duty, or what amount of interest, will afford a justification: but all are clear that it is a question for the Judge to decide."': Tench v. Great Western Railway 35
comment. 216 The issue is for the judge so that the potential that a jury might find a matter to be of no "national or general importance", according to its own bias, is eliminated:
It would be abolishing the law of privileged discussion, and deserting the duty of the Court to decide upon this as upon any other question of law, if we were to hand over the decision of privilege or no privilege to the jury. A jury, according to their individual views of religion or policy, might hold the Church, the Army, the Navy, Parliament itself, to be of no national or general importance, or the liberty of the Press to be of less consequence than the feelings of a thin-skinned disputant. 217
86. In Reynolds, Lord Cooke noted that "any value judgment" must be reserved for the judge:
At common law any value judgment required in determining whether a publication is privileged has been widely understood, in England and I believe elsewhere in the Commonwealth, as falling to the judge. I would be loath to entrench upon that understanding. Defamation cases are already difficult enough for juries, and the drastic judicial surgery that has had to be undertaken to curb extravagant awards of damages (see John v. MGN Ltd. [1997] QB 586) suggests that it may now be over-romantic to conceive of juries as champions of freedom of speech as in the days of Penn and Mead's case (1670) 6 St.Tr. 951 and Bushell's case (1670) 6 St.Tr. 999; Vaughan 135.218
87. The trial judge's fmding that the subject matter of the article was of "little concern to most people,,219 ignored the caution of Lord Nicholls in Reynolds that: "The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.,,22o The trial judge's narrow view of the concept of public interest was, as the Court of Appeal stated, the result of the application of the wrong test, which is not "whether the subject matter is one in which the public is interested
Co. (1873), 33 U.C.R. 8 (Court of Error and Appeal) at 41-42 (per Strong V.C., as he then was) and 46 (per Blake V.C.) [emphasis added] [Tench], RBA Tab 84 216 Patrick Milmo & W.V.H. Rogers, eds., Gatley on Libel and Slander, lOth ed. (London: Sweet & Maxwell, 2004), at p. 313 [Gatley], RBA Tab 88 217 Tench, supra at 46 and 28 [emphasis added], RBA Tab 84, citing from Henwood v. Harrison (1872), 7 L.R. 606 (C.P.). Indeed, "We must be careful not to leave the vitally important doctrine ofprivilege wholly at the mercy ofajury": Tench, supra at 28, per Hagarty, C.J.C.P, RBA Tab 84 218 Reynolds, supra at 226, ABA Tab 29. In Zundel, supra at 773, RBA Tab 65, McLachlin J. (as she then was) for a majority of this Court noted that a "jury in Port Alberni, B.C., may have a very different view of the overall beneficial impact of false statements of fact impugning the lumber industry than a jury in Toronto." 219 Qualified Privilege Ruling, AR Vol. I at 4 (I. 3-4). 220 Reynolds. supra at 205, per Lord Nicholls [emphasis added], ABA Tab 29. This is contrary to the judge's narrow view of public concern. 36
but whether the subject of the article is, as a matter oflaw, a public matter.,,221 Indeed, the article concerns the acquisition of Crown lands by a person who had made large political contributions to the governing party as well as environmental concerns - as the judge told the jury in his charge on fair comment, "as a matter of law ... this [without specifying what] was a matter of public interest.,,222 The article was indeed of "general public interest", as found by the Court of Appeal.223 Even Peter Grant acknowledged that his proposal was a "public matter".224
(ii) The defamatory statement is "part of the story"
88. Consideration of whether the defamatory statement was properly included in the article - whether it was "part of the story" - is also properly addressed by the judge, as this too involves a balancing of interests and consideration of the role of the media. In Jameel, Lord Hoffman emphasized that this required showing deference to editorial judgment in order to ensure that free speech is adequately protected. He stated:
... whether the defamatory statement should have been included is often a matter of how the story should have been presented. And on that question, allowance must be made for editorial judgment. If the article as a whole is in the public interest, opinions may reasonably differ over which details are needed to convey the general message. The fact that the judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence. That would make the publication of articles which are, ex hypothesi, in the public interest, too risky and would discourage investigative reporting?25
89. Consideration of how statements are presented is also a question of law in traditional qualified privilege, as the judge must determine whether what was published was "germane and reasonably appropriate to the occasion".226 Many of the ten Reynolds factors are also balanced such as the ''tone'' of the article, whether the newspaper is raising questions or adopting allegations as facts, whether it contained the "gist of the plaintiffs side of the story", and the
221 Reasons of the Court of Appeal, AR Vol. I, p. 142-143, paras. 62-63. The judge should have found the article was on a matter - or matters - of public interest and proceeded to consider the Reynolds factors. 222 Charge to the Jury, AR Vol. I at 86 (I. 26-290). 223 Reasons of the Court of Appeal, AR Vol. I, p. 144, para. 67 [emphasis added] 224 Grant, Cr-ex., AR Vol. V at 106 (I. 13) to 107 (I. 13). 225 lameel, supra at para. 51, per Lord Hoffman, ABA Tab 21. See also: lameel, supra at para 108, per Lord Hope, ABA Tab 21 226 Douglas, supra at 286 37
"seriousness of the allegations". Accordingly, it is consistent with existing law to leave these issues to a judge.
90. The defamatory statements were clearly "part of the story" and appropriately included, as Dr. Clark's statement reflected the sentiments of those opposed to the development. The Court of Appeal implicitly accepted this in commenting that the trial judge should have considered why Schiller left out the portion of Dr. Clark's email that acknowledged that their concerns over political influence may be "unfounded", as what a reporter chooses to leave out of a story can also demonstrate that he or she has acted responsibly.z27 The incident with the photographer on the public road gave context to the refusal of Grant to speak to the Star, his hostility to scrutiny (even though he knew it was a "public matter"), the contempt he showed to questions or criticism, and the honest fears of cottagers. In any event, it was true: the photographer was almost driven off the road and then was chased out oftown.228
(iii) The steps taken to gather and publish the story were responsible and fair
91. While the question of responsible journalism raises the issue of journalistic care and skilf29, consideration of this standard also involves analysis of competing Charter values including the interests of the public at large. The Court of Appeal correctly found the trial judge's brief ruling on "qualified privilege" failed to consider evidence relevant to many of the Reynolds factors. Although the trial judge listed the Reynolds factors he never once used the phrase "responsible journalism". lameel and its three-part test was reviewed by counsel but the trial judge did not refer to it. As in lameel, the trial judge was "hostile to the spirit of
Reynolds". 230
92. The Star submits that all the Reynolds factors favoured the defendants and ought to have resulted in the dismissal of the case. In particular:
227 Reasons of the Court of Appeal, AR Vol. I, p. 144, para 66; Charman v. Orion Group Publishing Group Ltd and Drs, [2007] EWCA Civ 972, at para. 74, per Ward LJ [Charman], RBA Tab 13 228 See paras. 44-46 above. 229 Reynolds, supra at 224, per Lord Cooke, ABA Tab 29 230 Jameel, supra at para. 56, ABA Tab 21. In Charman, supra at para. 71, RBA Tab 13, where the trial judge did not have the benefit of Jameel, the English Court of Appeal stated that he therefore "would not have appreciated how far the courts have gone in releasing the shackles on the freedom of expression afforded to the media in matters of public interest". 38
• the trial judge's subjective view that "the tone of the article is accusatory" ignores the point that newspapers "can raise queries or call for an investigation";
• in considering tone, the trial judge referred only to the opening paragraphs of the article - some 5 paragraphs out of a 90 paragraph article. Not only did the trial judge fail to consider the "article as a whole,,231, his finding that the opening paragraphs of the article, which are entirely true and accurate, set a "very negative tone" is an unacceptable attempt to play editor, amounting to a finding that the truth should have been told differentll32, which the judge is not to d0233,.
• the article did not "adopt allegations as statements of fact", nor was it one sided or fail, to the extent possible, to provide Grant's side of the story. The Court of Appeal correctly found that the trial judge erred in failing to consider the fact that Grant refused to be interviewed in coming to the conclusion that the article did not fairly report his side of the storl34;
• the trial judge said there was no urgency. But the issue was current. The story was published the day of the Township meeting, and a follow-up news story was published the next day. Schiller took his time with this article gathering facts from many and reliable sources, and verified the information;
• the article reflected both sides of the issue;
• the trial judge said that the "timing of the pUblication was probably meant to impact upon the plaintiff s proposed purchase of Crown lands". 235 Schiller admitted that he wanted to contribute to public discussion?36 But there is nothing nefarious in publishing a story that might, or even is intended to, have an impact on a public process. On the contrary, reporting on matters of public
231 As he must do: lameel, supra at para. 108, ABA Tab 21. Indeed, the judge failed to consider the portions of the article that indicated Grant was following the process (Le. submitting expert reports, preparing a response to MNR concerns) as well as the portions that refer to Grant's philanthropic efforts in the region, and the moderate quotes from a number of cottagers who indicated they had "nothing against Peter" but were only concerned about the environment. 232 The judge said "the story does not start with the concern that the golf course may have negative environmental impact", rather it - improperly in the judge's view - started with information on political donations. Qualified Privilege Ruling, AR Vol. I at 4 (I. 13-27) Political contributions are public: Election Finances Act, R.S.O. 1990, c. E.7, s. 34.1, see Part VII. Federal law now prohibits corporate donations: Canada Elections Act, S.C. 2000, c. 9, s. 404, see Part VII. Courts have noted that political contributions are not only matters of public interest but that public disclosure of them "facilitates democracy": Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 at paras. 61-62, RBA Tab 17; further, such disclosure is "fundamental to a healthy democracy": Gombu v. Ontario (Assistant Information and Privacy Commissioner) (2002), 59 O.R. (3d) 773 (Div. Ct.), at para. 21, leave to appeal to C.A. granted and appeal abandoned, RBA Tab 28. 233 lameel, supra at para. 33, per Lord Bingham, ABA Tab 21; Charman, supra at para. 75, per Ward LJ, and para. 90, per Sedley LJ, RBA Tab 13 234 Reasons of the Court of Appeal, AR Vol. I, p. 144, para. 66 235 Qualified Privilege Ruling, AR Vol. I at 4 (I. 32) to 5 (I. 2). 236 Schiller, Exam. in-Ch., AR Vol. VI at 94 (1. 18-28). The judge acknowledged this: Qualified Privilege Ruling, AR Vol. I at 4 (I. 30-32). 39
interest - and stimulating or influencing public debate - is one of the primary functions of the media;
• the trial judge completely disregarded the fact that the Star gave Grant every opportunity to comment. Bill Schiller repeatedly wrote to Grant over several months seeking his side of the story - including asking about his ties to Mike Harris. The Court of Appeal correctly found it was "incumbent on the trial judge" to consider the refusals of Grant and Fleet to be interviewed237 in considering what more Schiller could do to verify Grant's influence and Mike Harris ties, which the trial judge failed to do. This was also relevant to the analysis of whether the article contained the gist of the plaintiff's side of the story. Contrast this with Jameel, where the plaintiffs were contacted mere hours before publication and asked for some additional time to comment, but were refused. Still, the paper acted responsibly, said the Law Lords238; • as the Court of Appeal found, the trial judge also failed to consider the extensive research Schiller did for the article?39 Schiller met with many cottagers and spoke to representatives of the MNR, the MOE, and the Town. He tried to speak to Grant and his experts. He reviewed more than 180 documents and researched the article over five months; • as the Court of Appeal noted, but the jUdffie overlooked, Schiller reported on the position ofMNR officials in the stoif4 ;
• the Court of Appeal also noted that the trial judge should have considered Schiller's explanation for leaving out Lorrie Clark's statement that cottagers could be wrong in assuming Grant was using political influence241 ; and
• the trial judge failed to respect and give latitude to editorial judgment.242 As Ward LJ. stated: "[wlhere opinions may reasonably differ over the details which are needed to convey the general message, then deference has to be paid to the editorial decisions of the author, journalist or editor ... it is his ... evaluation which is important, not the judge's own evaluation ... conducted with the benefit of hindsight and with the sharp eye of a trained lawyer. ,,243
237 Reasons of the Court of Appeal, AR Vol. I, p. 143-144, para. 65. 238 Jameel, supra at paras. 79-85, per Lord Hoffman, ABA Tab 21 239 Reasons of the Court of Appeal, AR Vol. I, p. 143-144, para. 65. 240 Reasons of the Court of Appeal, AR Vol. I, p. 143-144, para. 65. 241 Reasons ofthe Court of Appeal, AR Vol. I, p. 144, para. 66. 242 Jameel, supra at paras. 33, 51, ABA Tab 21 243 Charman, supra at para. 75, [emphasis added, italics in original], RBA Tab 13. In applying the test, the judge ought to consider not only the content of the article but also the omission of negative facts concerning the plaintiff, Charman, supra at para 74, RBA Tab 13. As noted above (note 98), Schiller did not include any statements regarding the taking of water without a permit, or the construction of the first golf course or tennis court, though cottagers complained that Grant built these without permission. 40
93. As to the complaints made by the Appellants on the composition of the article, aside from the utter lack of merit to the submission, a court ought not to engage in a microscopic analysis of each piece of an article to defeat an otherwise good defence of responsible journalism. Binnie J. has correctly noted that "[j]ournalism inevitably involves selectivity.,,244 In the context of responsible journalism, Lord Justice Sedley has stated:
... an otherwise sound defence of responsible journalism is not, or at least not necessarily, undermined by a presentation which could arguably have been less unfavourable to the claimant than it was. Such an approach risks embarking upon the kind of retrospective editorial function which is not the court's role. A point can of course come at which, without necessarily being able to be branded irresponsible, a defamatory account loses its balance and with it the protection of qualified privilege; ... Balance, it should be appreciated, does not mean giving equal weight or credence to intrinsically unequal things - for example a telling accusation and an evasive reply. Such balance may be a sufficient answer for the purposes of a responsible journalism defence, but it is not a necessary one. A more selective or evaluative account is quite capable of staying within the bounds of responsible journalism.245
(d) The "seriousness of the allegations" is also a factor to be considered by the judge, not the jury
94. The Court of Appeal held there should be a new trial because, it said, a jury must determine the meaning of the "impugned statements" before the judge considers the responsible journalism defence246 - a point that was not raised or argued before that Court. The Star submits that this is wrong, that like the other Reynolds factors the "seriousness of the allegations" is a matter for the judge to determine as part of the "balancing operation", and there should not be a new trial. This point is argued in the Factum on Cross-Appeal, below, at paras. 112 to 122.
PART VI - SUBMISSIONS CONCERNING COSTS 95. The Star seeks its costs of the appeal, as well as in the courts below.
PARTV-ORDERSOUGHT
96. The Star respectfully requests that the appeal be dismissed with costs.
244 Neron, supra at para. 94, RBA Tab 26, per Binnie J (in dissent); "The function of the media is to gather, process and disseminate information. Their role also includes commentary and interpretation.": Neron, supra at para. 61, RBA Tab 26, per LeBel J. (quoting from Societe Radio-Canada v. Radio Sept-lIes Inc., [1994] RJ.Q. 1811 (C.A.)). 245 Charman, supra at para 90, per Sedley LJ [emphasis added], RBA Tab 13 246 Reasons of the Court of Appeal, AR Vol. I, p. 139-141, paras. 46-48, 51-52. PART VI - TABLE OF AUTHORITIES
Authority Paragraph(s)
I. Adam v. Ward, [1917] A.C. 309 72,85
2. Augustine Automatic Rotary Engine Co. ofCanada Ltd v. Saturday 62, 123, 133 Night Ltd (1917),38 O.L.R. 609 (S.C. (A.D.))
3. Bevis v. Burns, 2006 NSCA 56 62
4. Bonnickv. Morris & Ors. (Jamaica), [2003] 1 A.C. 300 (p.C.) 12,69
5. Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 82 [1991] 3 S.C.R. 459
6. Charman v. Orion Group Publishing Group Ltd, [2007] EWCA Civ 90,91,92,93 972
7. Cherneskey v. Armadale Publishers Ltd, [1979] 1 S.C.R. 1067 54
8. Cusson v. Quan (2007),87 O.R. (3d) 241 (e.A.) 10,69,72,73, 77,83
9. Daggv. Canada (Minister ofFinance), [1997] 2 S.C.R. 403 92
10. Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 69, 78
II. Davies & Davies Ltd v. Kott, [1979] 2 S.C.R. 686 7
12. Derbyshire County Council v. Times Newspapers Limited and others, 76 [1993] A.C. 534 (H.L.)
13. Douglas v. Tucker, [1952] 1 S.C.R. 275 80,85,89
14. Gombu v. Ontario Assistant Information and Privacy Commissioner 92 (2002), 59 O.R. (3d) 773 (Div. Ct.)
15. Green v. Miller (1903),33 S.C.R. 193 62
16. Halls v. Mitchell, [1928] S.C.R. 125 80,81
17. Hill v. Church ofSCientology, [1995] 2 S.C.R. 1130 78
18. Housen v. Nikolaisen, [2002] 2 S.C.R. 235 80
19. Jameel v. Wall Street Journal Sprl, [2007] 1 A.C. 359 (H.L.) 10, 71, 79, 80, 83,88,91,92 ii
Authority Paragraph(s)
20. Landolfi v. Fargione (2006), 79 O.R. (3d) 767 (Ont. C.A.) 62
2l. Lauferv. Bucklaschuk(1999), 181 D.L.R. (4th) 83 (Man. C.A.), leave 64 to appeal to S.C.C. refused, [2000] S.C.C.A. No. 77
22. Lee v. Globe and Mail (2001),52 O.R. (3d) 652 (Sup. Ct. J.) 61
23. Leslie v. The Canadian Press, [1956] S.C.R. 871 62
24. M (A.) v. Ryan, [1997] 1 S.C.R. 157 78
25. MacArthur v. Meuser (1997), 146 D.L.R. (4th) 125 (Ont. Gen. Div.) 64
26. MacArthur v. Meuser (2000), 188 D.L.R. (4th) 191 (Ont. c.A.) 64
27. McLoughlin v. Kutasy, [1979] 2 S.C.R. 311 72
28. Pereira v. Hamilton Township Farmers' Mutual Fire Insurance Co., 55 [2006] OJ. No. 1508 (Ont. C.A.)
29. R. v. Zundel, [1992] 2 S.C.R. 731 74,77,84,86
30. Redican v. Nesbitt, [1924] S.C.R. 135 55
3l. Reynolds v. Times Newspapers Ltd, [2001] 2 A.C. 127 (H.L.) 10, 11, 13,55, 68, 71, 74, 75, 76, 77, 79, 80, 81,84,86,87, 89,91,92,94
32. RTC Engineering Consultants Ltd v. Ontario (Solicitor General) 72 (2002),58 O.R. (3d) 726 (Ont. C.A.)
33. Schwartz v. De Pauw (1985), 16 O.A.C. 66 (Ont. c.A.) 62
34. Silkin v. Beaverbrook Newspapers Ltd., [1958] 1 W.L.R. 743 (Q.B.) 54,55
35. Taylor v. Despard, [1956] O.R. 963 (Ont. C.A.) 66
36. Tench v. Great Western Railway Co. (1873), 33 V.C.R. 8 (Court of 85 Error and Appeal)
37. Teskey v. Canadian Newspapers Co. (1989),68 O.R. (2d) 737 (Ont. 61 C.A.) 111
Authority Paragraph(s)
38. WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420 6, 52, 53, 54, 56,57,58,60, 61,77
DOCTRINE
Tab Authority Paragraph(s) 39. Patrick Milmo & W.V.H. Rogers, eds., Gatley on Libel and Slander, 85 10th ed. (London: Sweet & Maxwell, 2004) [excerpts] 40. Raymond E. Brown, The Law ofDefamation in Canada, 2d ed., 61, 72 looseleaf (Scarborough: Carswell, 1999) [excerpts] 41. Roger D. McConchie & David A. Potts, Canadian Libel and Slander 63,80,82 Actions (Toronto: Irwin Law, 2004) [excerpts] iv
PART VII - RELEVANT STATUTES, REGULATIONS AND RULES
Canadian Charter ofRights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11
Fundamental Freedoms
2. Everyone has the following fundamental freedoms: ...
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; * * * Libertes fondamentales
2. Chacun ales libertes fondamentales suivantes : ...
b) liberte de pensee, de croyance, d'opinion et d'expression, y compris la liberte de la presse et des autres moyens de communication; v
Canada Elections Act, S.C. 2000, c. 9
DIVISION 2
GENERAL FINANCIAL PROVISIONS
Contributions Ineligible contributors
404. (1) No person or entity other than an individual who is a citizen or permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act shall make a contribution to a registered party, a registered association, a candidate, a leadership contestant or a nomination contestant.
Return of contributions
(2) If a registered party, a registered association, a candidate, a leadership contestant or a nomination contestant receives a contribution from an ineligible contributor, the chief agent of the registered party, the financial agent of the registered association, the official agent of the candidate or the financial agent of the leadership contestant or nomination contestant, as the case may be, shall, within 30 days after becoming aware of the ineligibility, return the contribution unused to the contributor or, if that is not possible, pay the amount of it or, in the case of a non monetary contribution, an amount of money equal to its commercial value, to the Chief Electoral Officer who shall forward that amount to the Receiver General.
Provincial divisions
(3) For greater certainty, contributions to and expenses of a provincial division of a registered party are contributions to and expenses of the party. Similarly, transfers to or by the division are transfers to or by the party.
Registered agents
(4) A provincial division of a registered party may, subject to any terms and conditions that it specifies, appoint registered agents. This Act applies to those agents as if they were registered agents appointed by the party under subsection 375(1).
2000,c.9,s.404;2001,c.27,s.214;2003,c.19,s.24. * * * VI
SECTION 2
DISPOSITIONS FINANCIERES GENERALES
Contributions Contributions
404. (1) II est interdit it toute personne ou entite, sauf it un particulier - citoyen canadien ou resident permanent au sens du paragraphe 2(1) de la Loi sur I 'immigration et la protection des refugies -, d'apporter une contribution it un parti enregistre, it une association enregistree, it un candidat, it un candidat it la direction ou it un candidat it l'investiture.
Remise de contributions
(2) Si un parti enregistre, une association enregistree, un candidat, un candidat it la direction ou un candidat it l'investiture re'(oit une contribution inadmissible, 1'agent principal du parti, l'agent financier de l'association, l'agent officiel du candidat ou l'agent financier du candidat it la direction ou du candidat it l'investiture, dans les trente jours suivant Ie moment OU il prend connaissance de l'inadmissibilite du donateur, remet la contribution - ou une somme egale it la valeur commerciale de celle-ci dans Ie cas d'une contribution non monetaire - au directeur general des elections, qui la remet au receveur general, s'illui est impossible de la remettre, inutilisee, au donateur.
Divisions provinciales
(3) II est entendu qu'une contribution apportee it la division provinciale d'un parti enregistre est une contribution apportee au parti et qu 'une depense engagee par une telle division est une depense engagee par Ie parti. II est entendu que les sommes cedees par une telle division ou it celle-ci sont cedees par Ie parti ou it celui-ci.
Agents enregistres
(4) La division provinciale d'un parti enregistre peut nommer des agents enregistres; la nomination precise les attributions qui leur sont conferees. La presente loi s' applique it ces agents comme s'ils etaient des agents enregistres nommes par Ie parti au titre du paragraphe 375(1).
2000,ch. 9,art. 404; 2001,ch. 27,art.214;2003,ch. 19,art.24. Vll
Elections Finances Act, R.S.O. 1990, c. E.7
Disclosure of contributions Application, amounts over $100 34.1 (1) Subsection (2) applies in respect ofa single contribution in excess of$100 and contributions from a single source that in the aggregate exceed $100.2005, c. 35, s. 2 (4). Disclosure (2) A contribution shall be disclosed in accordance with subsection (3) if it is accepted, (a) on behalf of a registered political party, (i) in any year, excluding any campaign period all or part of which falls in that year, or (ii) in any campaign period; or (b) on behalf of a registered leadership contestant, in the leadership contest period. 2005, c. 35, s. 2 (4). Report to Chief Electoral Officer (3) Within 10 days after the contribution is deposited in accordance with subsection 16 (3), the chief financial officer of the political party or leadership contestant shall file with the Chief Electoral Officer a report about the contribution. 2005, c. 35, s. 2 (4); 2007, c. 15, s. 40 (1). Publication on website (4) Within 10 days after the report is filed, the Chief Electoral Officer shall ensure that the report or the information it contains is published on a website on the Internet in accordance with clause 2 (1) 0.2). 2005, c. 35, s. 2 (4); 2007, c. 15, s. 40 (1). Counting days (5) For the purposes of subsections (3) and (4), Saturdays, Sundays and days that are public holidays as defined in the Employment Standards Act, 2000 shall not be counted. 2005, c. 35, s. 2 (4). Separate treatment (6) Contributions to which subclause (2) (a) (i) applies shall be dealt with separately from those to which subclause (2) (a) (ii) applies. 2005, c. 35, s. 2 (4). Contributions deposited on and after January 1, 2004 included (7) This section applies to contributions that are deposited in accordance with subsection 16 (3) on or after January 1,2004.2005, c. 35, s. 2 (4). Transition (8) In the case of a contribution that is deposited in accordance with subsection 16 (3) before the effective date, (a) subsections (3) and (4) do not apply; (b) within 60 days after the effective date, the chief financial officer of the political party or leadership contestant shall file a report about the contribution with the Chief Vlll
Electoral Officer, unless the contribution has already been included in a financial statement filed under section 41 or 42; and (c) within 30 days after the report is filed under clause (b), the Chief Electoral Officer shall ensure that the report or the information it contains is published on a website on the Internet in accordance with clause 2 (1) 0.2).2005, c. 35, s. 2 (4); 2007, c. 15, s. 40 (1). Definition (9) In this section, "effective date" means the day on which subsection 2 (4) of the Election Statute Law Amendment Act, 2005 comes into force. 2005, c. 35, s. 2 (4). * * *
Divulgation des contributions Champ d'application, montants de plus de 100 $ 34.1 (1) Le paragraphe (2) s'applique a l'egard d'une contribution unique superieure a 100 $ et aux contributions d'une meme source d'un montant total superieur a 100 $. 2005, chap. 35, par. 2 (4). Divulgation (2) Toute contribution est divulguee conformement au paragraphe (3) si elle est acceptee, selon Ie cas : a) pour Ie compte d'un parti politique inscrit : (i) soit au cours d'une annee, a l'exclusion de toute periode de campagne electorale qui se situe, en totalite ou en partie, dans cette annee, (ii) soit au cours d'une periode de campagne electorale; b) pour Ie compte d'un candidat inscrit ala direction d'un parti, au cours de la peri ode de campagne de designation du chef du parti. 2005, chap. 35, par. 2 (4). Rapport communique au directeur general des elections (3) Au plus tard 10 jours apres Ie depot de la contribution conformement au paragraphe 16 (3), Ie directeur des fmances du parti politique ou du candidat a la direction d'un parti depose aupres du directeur general des elections un rapport sur la contribution. 2005, chap. 35, par. 2 (4); 2007, chap. 15, par. 40 (1). Publication sur un site Web (4) Au plus tard 10 j ours apres Ie depot du rapport, Ie directeur general des elections veille a ce que Ie rapport ou les renseignements qu'il contient soient publies sur un site Web d'Internet conformement a l'alinea 2 (1) j.2). 2005, chap. 35, par. 2 (4); 2007, chap. 15, par. 40 (1). Calcul des delais (5) Pour l'application des paragraphes (3) et (4), Ie samedi, Ie dimanche et lesjours feries au sens de la Loi de 2000 sur les normes d'emploi ne sont pas comptes. 2005, chap. 35, par. 2 (4). ix
Contributions traitees separement (6) Les contributions auxquelles s'applique Ie sous-alinea (2) a) (i) sont traitees separement de celles auxquelles s'applique Ie sous-alinea (2) a) (ii). 2005, chap. 35, par. 2 (4).
Application aux contributions deposees Ie 1er janvier 2004 ou par la suite (7) Le present article s'applique aux contributions qui sont deposees conformement au paragraphe 16 (3) Ie 1er janvier 2004 ou par la suite. 2005, chap. 35, par. 2 (4). Disposition trans ito ire (8) Dans Ie cas d'une contribution qui est deposee conformement au paragraphe 16 (3) avant la date de prise d' effet : a) les paragraphes (3) et (4) ne s'appliquent pas; b) dans les 60 jours suivant la date de prise d'effet, Ie directeur des finances du parti politique ou du candidat a la direction d'un parti depose un rapport sur la contribution aupres du directeur general des elections, a moins que la contribution n'ait deja ete incluse dans un etat fmancier depose en application de l'article 41 ou 42; c) dans les 30 jours suivant Ie depot du rapport en application de l'alinea b), Ie directeur general des elections veille a ce que Ie rapport ou les renseignements qu'il contient soient publies sur un site Web d'intemet conformement a l'alinea 2 (1) j.2). 2005, chap. 35, par. 2 (4); 2007, chap. 15, par. 40 (1). Definition (9) La definition qui suit s'applique au present article. «date de prise d'effet» Le jour de l'entree en vigueur du paragraphe 2 (4) de la Loi de 2005 modifiant des lois en ce qui concerne les elections. 2005, chap. 35, par. 2 (4). x
Libel and Slander Act, R.S.O. 1990, c. L.12
Fair comment 23. In an action for libel or slander for words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved. R.S.O. 1990, c. L.12, s. 23. Fair comment 24. Where the defendant published defamatory matter that is an opinion expressed by another person, a defence of fair comment by the defendant shall not fail for the reason only that the defendant or the person who expressed the opinion, or both, did not hold the opinion, if a person could honestly hold the opinion. R.S.O. 1990, c. L.12, s. 24. * * *
Commentaire loyal 23. Dans une action en libelle diffamatoire ou en diffamation verbale decoulant de mots qui expriment a la fois des allegations de fait et des opinions, la defense de commentaire loyal ne doit pas etre rejetee au seul motif que la veracite de chacune des allegations de fait n'est pas etablie si I' opinion exprimee constitue un commentaire loyal, eu egard aux faits allegues ou mentionnes dans les mots reproches qui sont etablis. L.R.O. 1990, chap. L.12, art. 23. Commentaires loyaux par un tiers 24. Si Ie defendeur a publie un fait diffamatoire qui constitue l' opinion qu'un tiers a exprimee, la defense de commentaire loyal ne doit pas etre rejetee au seul motif que Ie defendeur ou la personne qui a exprime l'opinion, ou les deux, n'a pas cette opinion, si une personne pouvait honnetement avoir cette opinion. L.R.O. 1990, chap. L.12, art. 24. 41
FACTUM OF APPELLANTS ON CROSS·APPEAL
PART I· OVERVIEW AND STATEMENT OF FACTS
97. The Star relies on the facts as set out in the Factum of Respondents on Appeal, above at paras. 15 to 49.
PART II· STATEMENT OF ISSUES ON CROSS·APPEAL
98. This cross-appeal raises the following issues:
(a) Whether the trial judge ought to have dismissed the action on the basis that the statement that "everyone thinks it's a done deal" was an honestly held opinion which was published in circumstances where there was no "probability of malice";
(b) Whether the Court of Appeal should have applied the defence of responsible journalism itself and dismissed the case; and
(c) Whether a new trial can be justified at all having regard to all the errors committed by the trial judge in his conduct of the case.
PART III - STATEMENT OF ARGUMENT
1. Fair comment and malice should not have been left with the jUry
99. The trial judge ought to have removed the case from the jury and dismissed the action. The defence of fair comment clearly applied and there was no "probability of malice" such that a jury, properly instructed, could find that it existed. However, the judge did not rule on these 247 issues, and the Court of Appeal erred in not doing so either. The judge should have found , as a matter oflaw and as he was asked to do, that the Lorrie Clark statement that "everyone thinks it's a done deal" (l) is a comment, not fact, and not have left this issue to the jury; (2) it was an opinion one could objectively hold based on the facts - and any finding to the contrary by a 248 properly directed jury would be patently unreasonable ; and (3) there was no "probability" that
247 In addition to finding that the subject matter was of public interest: Charge to the Jury, AR Vol. I at 86 (\. 27-29). 248 It is the judge's responsibility to withdraw issues from the jury if" ... properly directed [it] could not properly reach a necessary factual conclusion": Alexander v. Arts Council o/Wales, [2001] 4 All E.R. 205 (C.A.), at para. 37 [Alexander], RBA Tab 2 42
Bill Schiller published it with any "dominant" - or any - improper motive?49 In leaving these issues with the jury, the judge then made other serious errors in his charge, patently inconsistent with the law confirmed in WIC, as argued above at paras. 63 to 66.
(a) The words were comment, not fact
100. Whether words are fact or opinion is a question of law to be determined by the judge unless there is reasonable doubt as to their construction?50 The requirement that a trial judge initially determine whether to leave this issue with the jury is "a response to concerns about freedom of expression".zSI That this issue was "highly contested in the action,,252 - which appears to be the basis upon which the Court of Appeal found the trial judge made no error in leaving the issue with the jury - is not the correct test.
101. The trial judge ought to have found, as a matter of law, that Dr. Lorrie Clark's statement that "Everyone thinks it's a done deal because of Grant's influence - but most of all his Mike Harris ties ....This is a development that is not in the public interest" (as it was quoted in bold print in the article), is a comment or opinion. It is a "value judgment" of the speaker and incapable of proof53 - "something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.,,254 The "notion of 'comment' is generously interpreted.,,255 ''[W]ords that may appear to be statements of fact may, in pith and substance, be properly construed as comment.,,256
102. In Zundel, Cory and Iacobucci JJ. (dissenting) noted that facts are "susceptible to proof and disproof' whereas "expression which merely offers an interpretation of fact which may be
249 See discussion of malice at paras. 107 to III below. 250 Associated Newspapers Ltd. v. Burstein, [2007] EWCA Civ 600 at para. 18 [Burstein], leave to appeal to H.L. refused, both documents at RBA Tab 4; Scott v. Fulton (2000), 73 B.C.L.R. (3d) 392 (C.A.), at para. 16, RBA Tab 75; Telnikoffv. Matusevitch, [1991] 3 W.L.R. 952 at 956 (H.L.), RBA Tab 83 251 WIC, supra at para. 55, ABA Tab 35 252 The Court of Appeal failed to review this question of law on the appropriate standard - correctness: see Reasons of the Court of Appeal, AR Vol. I, p. 147, para. 78 253 Brown, supra at 15-36, Tab 89; Ross v. New Brunswick Teachers Assn. (2001),201 D.L.R. (4~ 75 (N.B.C.A.), at para. 56 [Ross], RBA Tab 72 254 Burstein, supra at para. 19, RBA Tab 4, quoting from Clarke v. Norton, [1910] V.L.R. 494 at 499. See also: WIC, supra at para. 26, ABA Tab 35; Ross, supra at para. 56, RBA Tab 72; and McConchie & Potts, supra at 338-344 , RBA Tab 90 255 WIC, supra at para. 30, ABA Tab 35 256 WIC, supra at para. 26, ABA Tab 35 43
embraced or rejected depending on its cogency or normative appeal, is opinion".257 McLachlin 1. (as she then was), for the majority, noted how "slippery the distinction may be,,258 if applied incorrectly. She commented on one case, R. v. Hoaglin, to illustrate her concern:
If the expression in issue in that case, in which a disaffected American settler in Alberta had printed posters which stated 'Americans not wanted in Canada; investigate before buying land or taking homesteads in this country' is an example of a 'false statement of fact' falling within the prohibition, one shudders to consider what other comments might be so construed?59
103. As in WIC, Dr. Clark's comment is an inference (" ... it's a done deal because of') from factual premises (Grant has "influence" and "Mike Harris ties"). The words "Everyone thinks" indicate that the phrase "it's a done deal" is a conclusion or inference that has been reached by Dr. Clark (and others).260 Accordingly, the judge should have found that the phrase was a statement of opinion and not left this issue with the jury, as he was asked to do. However, as with responsible journalism, he never ruled on the issue?61
(b) The factual basis for the comment
104. A comment must have "a basis in" - not be "supported by" - a factual foundation.262 The test must not be so high that it "create [s] the potential for judicial censorship of public opinion".263 Whether facts "fairly" give rise to comment is not the point, as that introduces "an unwelcome requirement of reasonableness and proportionality". 264 "What is important is that the facts be sufficiently stated or otherwise be known to the listeners that listeners are able to make up their own minds ... ,,265 The law requires only a "sufficient substratum of facts,,266; there is no obligation "to set out all facts, both pro and con, relevant to the matter upon which [one] is commenting. ,,267
257 Zundel, supra at 833, RBA Tab 65 258 Ibid., at 768, RBA Tab 65 259 Ibid, supra at para. 768-769, RBA Tab 65, referring to R. v. Hoaglin, (1907),12 C.C.C. 226 (N.W.T.S.C.) 260 WIC, supra at para. 26, ABA Tab 35 261 Defendants' Pre-Charge Submissions, AR Vol. VII at 165 (1.10) to 166. 262 WIC, supra at para. 39, ABA Tab 35 263 Ibid. ABA Tab 35 264 Ibid. at para. 33, ABA Tab 35 265 Ibid. at para. 31, ABA Tab 35 266 Ibid.. at para. 59, ABA Tab 35 267 Creative Salmon Company Ltd v. Staniford, 2009 BCCA 61 at paras. 60-61 [Creative Salmon], RBA Tab 16 44
105. Here the comment has a basis in facts set out or referred to in the Article268 and within the comment itself (i.e., Grant has influence and ties to Mike Harris). There is no doubt that the readers of the Article would be "able to make up their own minds" concerning Dr. Clark's comment. 269 This issue is also addressed at paras. 61 to 62 above.
(c) The opinion was honestly held
106. As argued at paras. 57 to 58 above, Dr. Clark's honest belief in what she said meets the objective test: that she believed it establishes that a person could believe it, and of course others did?70 And whether Schiller held the same opinion or not is irrelevant.271 Accordingly, the application of the defence of fair comment should not have gone to the jury.
(d) No malice
107. Malice can defeat the defences of fair comment and qualified privilege?72 However, as there is a presumption against malice273 this Court has held that "the question of malice should not be put to the jury unless the trial judge is of the opinion that the evidence adduced raises a probability of its existence.,,274 This requires that the evidence "be more consistent with its existence than with its non-existence.,,275 This high test is "to prevent occasions of qualified privilege [and fair comment] being eroded by the possible propensity of a jury to readily find malice where such is unjustified.,,276 The obligation on the judge to determine whether there is a "probability" of malice is, like the requirement that the judge initially consider whether words are "comment", a response to concerns about freedom of expression. Judges have withdrawn the
268 Such facts include that: Grant and GFP are an important local employer; Grant has made significant philanthropic efforts in the region; Grant and his companies have made donations to the Provincial Conservative party (including to Mike Harris' leadership campaign); GFP uses the vice-president of Mike Harris' riding association as a lobbyist; Mike Harris attended a reception following the charitable golftournament organized by Grant at Grant's house the previous fall. 269 Additional facts are summarized above at para. 61, which addresses the judge's failure to review facts relevant to the defence with the jury. 270 As noted above, the plaintiffs did not challenge Dr. Clark's honest belief. See para. 57 and note 139, supra. 271 See para 58 above. 272 WIC, supra at paras. 2, 53, 62, ABA Tab 35. The "requirement that malice be the dominant motive ... helps maintain a proper balance between protecting freedom of expression and reputation": per LeBel 1. in WIC, supra at para. 106, ABA Tab 35. The Court of Appeal correctly found that the judge did not make this sufficiently clear to the jury: Reasons of the Court of Appeal, AR YoU, p. 150, para. 94 273 However, malice is irrelevant in the responsible journalism context: See Jameel, supra at para. 46, ABA Tab 21 274 Davies. supra at 694 [emphasis added], RBA Tab 19 275 Davies, supra at 695, RBA Tab 19, citing from: Taylor. supra at 978, RBA Tab 82 276 Silbernagel v. Empire Stevedoring Company Ltd (1979), 18 B.C.L.R. 384 (S.C.), at 391 [emphasis added], RBA Tab 77. The test also applies to comment and damages: Campbell v. Jones, [2001] N.SJ. No. 373 (S.C.), at paras. 40-42 [Campbell], RBA Tab 9, rev'd on other grounds, Campbell v. Jones (2002), 220 D.L.R. (4th) 201 (N.S.C.A.), RBA Tab 10 45
issue of malice where the evidence did not meet the probability test?77 And although courts, including this Court, have assumed that "proof of malice on the part of the media is generally very difficult,,278 to establish, this can depend on the trial judge properly considering whether malice should go to the jury and, if so, properly instructing the jury.
108. In order for malice, "in the sense of improper motive", to defeat fair comment it must be the "dominant motive for expressing an opinion".279 But malice does not necessarily exist where there is no honest belief, as "there may be non-malicious and valid reasons for publishing views one does not personally hold,,?80
109. The test for malice is, and must be, very high. Spite or ill will, as commonly understood, cannot be sufficient.281 For example:
• In WIC, the defendant displayed "both personal animosity toward the plaintiff and contempt for her character and her ideas, as well as a desire to harm her reputation", and he was on a "campaign" to expose the plaintiffs "irresponsible" statements, yet "the dominant motive for publishing the editorial was [his] honestly held opinion.,,282
• In Creative Salmon, the British Columbia Court of Appeal recently applied WIC in holding that the fact that the defendant was "endeavouring to build up opposition [to the plaintiff obtaining organic certification for its fish] by attempting to influence public opinion" could not be evidence of malice. The right to express one's views to attempt to influence public opinion on matters of public interest "is the objective of the defence of fair comment. The defence cannot be defeated if [the defendant] was doing the very thing the defence was designed to protect. ,,283
110. As Lord Diplock stated in Horrocks v. Lowe, and as adopted by this Court in Davies, regarding malice and qualified privilege (but the point is equally applicable to fair comment), the
277 Hill v. Johnston, [2006] A.J. No. 318 (Q.B.), at paras. 37-38, RBA Tab 32; McKearney v. Petro-Canada Inc. (1994),25 C.P.C. (3d) 218 (B.C.S.C.), at paras. 14-15, RBA Tab 50; Campbell, supra at paras. 41-43, RBA Tab 9; Netupsky v. Craig, [1973] S.C.R. 55 at 64 [Netupsky], RBA Tab 54: "I do not think that the sentences which he cites could be reasonably interpreted so as to afford any evidence of intrinsic malice ... " It is the judge's responsibility to withdraw issues from the jury if " ... properly directed [it] could not properly reach a necessary factual conclusion": Alexander, supra at para. 37 (C.A.), RBA Tab 2 278 WIC, supra at para 52, ABA Tab 35 279 See footnote 272 280 WIC, supra at para. 102, per Lebel J, ABA Tab 35 281 The plaintiff must "show that malice was the dominant motive for the communication": RTC Engineering, supra at para. 23, RBA Tab 73; see also: WIC, supra at para. 53, ABA Tab 35; Horrocks, supra at 149, RBA Tab 34; Hill, supra at para. 144, RBA Tab 31 282 WIC, supra at paras. 12,62 [emphasis in original], ABA Tab 35 283 Creative Salmon, supra at paras. 40-41 [emphasis added], RBA Tab 16 46
defence ''would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person ... disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. ,,284
111. The plaintiffs' case failed to meet the probability of malice burden; however, the trial judge did not remove malice from the jury, as was requested .285 The Court of Appeal erred in not correcting this error. The judge also (again) provided no ruling or reasons on this issue. There was no "probability of malice" in this case. In particular,
• There was no evidence the article was published for any collateral - or political - purpose. Although Schiller was cross-examined on the Star's so called "Liberal editorial bias", he firmly denied he was ever asked to write a story with a "political bent" ("I wouldn't work for such a newspaper,,)?86 In any event, this evidence was objected to and should not have been admitted.287
Schiller testified that he had no sF:ite or ill will towards the plaintiffs, nor was • 2 there any evidence suggesting it. 8 • Schiller phoned Grant and wrote him several letters over a period of several months in diligent attempts to get his side of the story. • Dr. Clark's opinion was honestly held?89 Other cottagers shared the same sentiment about her fears of the proposal being a "done deal" as confirmed by her and Schiller.29o Clark's later statement in her email to Schiller " ... that this
284 Davies, supra at 698, RBA Tab 19; citing from Horrocks, supra at 151, RBA Tab 34 285 Defendants' Pre-Charge Submissions, AR Vol. VIII at 2 (I. 24) to 13 (I. 16). 286 Schiller, Cr.-ex., AR Vol. VII at 73 (I. 24) to 101 (I. 13); Schiller, Re-ex., AR Vol. VII at 103 (I. 14-21). The plaintiffs' plead in their statement of claim that the Star published the story "for the collateral purpose of bringing about the electoral defeat of Michael Harris ... ": Statement of Claim, AR Vol. II at 22 (para. 54 (b». 287 See, e.g.: Roberts v. Gable, [2007] EWCA Civ 721, at para. 26, RBA Tab 67, quoting the trial judge, Eady J., who noted that "[w ]hat is important in this context is not so much the political stance of the Defendant, but rather the way in which the particular dispute or controversy is being reported"; O'Malleyv. a 'Callaghan (1992), 89 D.L.R. (4th) 577 (Alta. Q.B.), at 591 [O'Malley], RBA Tab 55: "The plaintiff attempts to introduce extrinsic evidence to prove the presence of malice. Much of this consists of summarizing the Herald's editorial decisions over a period of years, and concluding that there was a pro-choice slant... I do not agree." See Ruling of Justice Rivard on cross-examination of Schiller, AR Vol. VII at 13-14. 288 Schiller, Cr.-ex., AR Vol. VII at 46 (I. 2-30) and 102 (I. 6-27); Schiller, Exam. in-Ch., AR Vol. VI at 109 (I. 27-31). 289 The defendants ought to be able to rely on Clark's subjective honest belief; the statement was clearly attributed to her in the Article. Malice is only relevant in fair comment if the defendant relies on objective honest belief: WIC, supra at para. 53, ABA Tab 35 290 Clark, Exam. in-Ch., AR Vol. VII at 128 (I. 3-17) and 134 (I. 28-32); Schiller, Exam. in-Ch., AR Vol. VI at 107 (I. 12-19). See Hodgson v. Canadian Newspapers Co. (2000),49 OR (3d) 161 (Ont. c.A.), at paras. 41-42, [Hodgson], RBA Tab 33 - intent is relevant to the issue of malice.
48
where there is room for differences between ordinary readers as to the interpretation of a newspaper article, there is no reason to suppose that all twelve jurors are necessarily going to fit into one straitjacket. Any differences between them, which are likely to be relatively minor and limited to matters of shading or emphasis, would not normally have to be revealed. If they are asked to produce a carefully drafted set of meanings, however, which remove any ambiguity which has been left in the article ex hypothesi by the professional journalist or editor, there is much more scope for stalemate?96
115. Additionally, asking a jury to engage in a specific detailed process of gleaning a particular meaning, as the Court of Appeal suggests, is inconsistent with the principle that the Court "should give the article the natural and ordinary meaning it would have conveyed to the ordinary reasonable reader ... reading the article once .... He is not avid for scandal. He would not select one bad meaning where other, non-defamatory meanings are available. The court must read the article as a whole, and eschew over-elaborate analysis and, also, too literal an approach. ,,297
116. The Court of Appeal's decision is also inconsistent with the House of Lords' approach, which rejects the "artificial,,298 "single meaning" rule for the purposes of the responsible journalism defence. The rule attributes to the words only one meaning, even though different readers (and different jurors) may read the words in different ways. Although this is a "fair and workable" method for deciding whether the words under consideration should be treated as defamatory, or where the defence of justification is raised, it is an "altogether different matter to apply the principle when deciding whether a journalist or newspaper acted responsibly,,?99 Standards must be applied in a "practical and flexible" manner; the single meaning rule would introduce "unnecessary and undesirable legalism and rigidity". 300 Readers may form different views on the meaning to be given to an article,301 or statements, including meanings not intended or anticipated by the journalist. In such circumstances, "a journalist should not be penalised for
2% Jameel v. Wall Street Journal Sprl, [2004] EWHC 37 CQ.B.) at para. 6 [Jameel (Q.B.)] [emphasis added], RBA Tab 36. See also Jameel (Q.B.) at para 67, RBA Tab 36 297 Bannick, supra at para. 9, ABA Tab 7 298 Ibid., at para. 21, ABA Tab 7 299 Ibid., at paras. 21-22, ABA Tab 7 300 Ibid., at para. 24, ABA Tab 7. See also Charman, supra at para 56, RBA Tab 13, where the English Court of Appeal ruled that the single meaning rule should not be imported to decide whether allegations had been adopted by ajoumalist for the purposes ofthe reportage defence; and Bray v. Deutsche Bank AG, [2008] EWHC 1263 CQ.B.), at paras. 42-43, RBA Tab 8, where it was recognized that the single meaning rule does not apply to a determination of an issue of malice. 301 Bannick, supra at para. 20, ABA Tab 7 49
making a wrong decision on a question of meaning on which different people might reasonably take different views,,?02 Rather, a court may - and should - properly take the meaning intended by the journalist into account when considering whether the responsible journalism defence is available.303 This is consistent with this Court's approach to meaning in WIC, where Binnie J. said:
It seems to me that defamation proceedings will have reached a troubling level of technicality if the protection afforded by the defence of fair comment to freedom of expression ("the very lifeblood of our freedom") is made to depend on whether or not the speaker is pre~ared to swear to an honest belief in something he does not believe he ever said". 04
117. In Zundel, McLachlin 1. (as she then was) also wrote about the difficulty of determining a "single meaning":
One problem lies in determining the meaning which is to be judged to be true or false. A given expression may offer many meanings, some which seem false, others, of a metaphorical or allegorical nature, which may possess some validity. Moreover, meaning is not a datum so much as an interactive process, depending on the listener as well as the speaker. Different people may draw from the same statement different meanings at different times. The guarantee of freedom of expression seeks to protect not only the meaning intended to be communicated by the publisher but also the meaning or meanings understood by the reader [citations omitted]. The result is that a statement that is true on one level or for one person may be false on another level for a different person.305
118. Consideration of the "seriousness of the allegations" by the judge does not - and should not - require determination of a "single meaning". The judge's role in determining whether words are capable of bearing the defamatory meanings pieaded306 means that, as a matter of law, meanings which can only emerge as the product of some strained, forced, or utterly unreasonable interpretation should be rej ected. 307 Once a judge has determined which meanings the words are capable of bearing, he or she considers this range of meanings, "on which different people might
302 Ibid., at para. 24, ABA Tab 7 303 Ibid., ABA Tab 7. See also Charman, supra at para. 70, RBA Tab 13, where Lord Justice Ward ruled that the author's assertion that he did not intend to convey the imputation the words were held to bear by the trial judge was a relevant fact to take into account in assessing the responsibility of his conduct. 304 WIC Radio, supra at para. 35, ABA Tab 35 305 Zundel, supra at 756 [emphasis added], RBA Tab 65 306 Lewis v. Daily Telegraph Ltd., [1964] A.C. 234 (H.L.), at 258 [Lewis], RBA Tab 44; Laufer, supra at para. 25, RBA Tab 41 307 Jones v. Skelton, [1963] 1 W.L.R. 1362 (p.C.), at 1370, RBA Tab 38, cited with approval in Laufer, supra at para. 26, RBA Tab 41; Mantini v. Smith Lyons LLP, (2003), 64 O.R. (3d) 516 (Ont. C.A.), RBA Tab 49 50
reasonably take different views",308 in his or her determination of the "seriousness of the allegations" as one factor in the "balancing operation".
119. Indeed, this was the approach taken in Jameel, where the ten Reynolds factors, including the "seriousness of the allegations", were balanced without the need to determine the "single meaning" of the article. Lord Bingham said:
The jury in due course found that the article referred to was defamatory of both respondents. They may have understood the article to mean that there were reasonable grounds to suspect the involvement of the respondents, or alternatively that there were reasonable grounds to investigate the involvement of the respondents, in the witting or unwitting funnelling of funds to terrorist organisations. For present purposes it is immaterial which defamatory meaning the jury ~ave the passage complained of, neither of which the newspaper sought to justify.3o
120. In England, judges playa more active role with regard to meanings at the early stages of libel actions as a result of a procedural rule "to enable the court to fix in advance the ground rules and permissible meanings, which are of cardinal importance in defamation actions ... ".31o This rule311 permits pre-trial rulings by judges on whether or not words are capable of bearing a particular meaning, as occurred in Geenty v. Channel Four Corp. and Another312 and Gillick v. Brook Advisory Centre & Another, cases the Court of Appeal cited, erroneously, for the principle that libel trials are sometimes bifurcated proceedings.313
121. The approach suggested by Feldman J.A. of referring "all relevant questions" to the jury before the trial judge's decision on the availability of responsible journalism - including other defences and damages314 - is undesirable and may lead to complications. Indeed, this is not the approach taken in traditional qualified privilege, where the judge rules on qualified privilege and, unless there is sufficient evidence of malice, the case is removed from the jury entirely. 315
308 Bonnick, supra at para 24, ABA Tab 7 309 Jameel, supra at para. 5 [emphasis added], ABA Tab 21 310 Gil/ickv. Brook Advisory Centre & Another, [2001] EWCA Civ 1263 (C.A.), at para. 7, RBA Tab 27 311 UK Civil Procedure Rules, Practice Direction 53, para. 4.1-4.4 (formerly RSC Ord.82, r.3A), see Part VII. 312 [1998] E.M.L.R. 524 (C.A.), RBA Tab 25 313 Reasons of the Court of Appeal, AR Vol. I, p. 139, para. 45 (footnote 2) 314 Reasons of the Court of Appeal, AR Vol. I, p. 139-140, paras. 45-46 315 Taylor, supra at 970, RBA Tab 82 51
122. In any event, even if the article in this case bears the appellants' meaning, it is still a piece of responsible journalism. In Jameel, although the trial judge found that the allegations in the article were "plainly at the higher end of the scale",316 as there was a tenable argument that the article meant that the plaintiffs knowingly funnelled money to terrorist organizations, the House of Lords had no difficulty in saying that responsible journalism applied. So too here. The Star's story is, like in Jameel, "serious journalism ... and our defamation law should encourage rather than discourage it. ,,317
3. Other Errors
(a) Additional errors in the charge to the jury
123. The Court of Appeal correctly found that the trial judge made a number of errors in charging the jury - in addition to those made with respect to fair comment and malice - which individually or cumulatively, and having regard to the entire record318, may have (at the very least) affected the verdict.319 Further, where misdirections are errors of law, the standard of review is correctness. 320
(i) The presumption of falsity
124. At the outset of his charge on the law, the judge told the jury that because he had found "that the words are capable of a libellous meaning ... the words complained of are, in law, presumed to be false.,,321 This was a highly prejudicial error which he repeated when he charged the jury on the defence of justification322, and refused to correct.323 The presumption of falsity only applies if the jury decides that the words are, in fact, libellous?24 The Court of Appeal
316 Jameel (Q.B.), supra at para. 38, RBA Tab 36 317 Jameel, supra at para. 150, per Baroness Hale, ABA Tab 21 318 The Court of Appeal properly assessed the charge as a whole, and with regard to the cumulative effects of the numerous errors made by the trial judge: Reasons of the Court of Appeal, AR Vol. I, p. 148, para. 85. 319 Leslie. supra at 874, RBA Tab 43. See also Schwartz. supra at paras. 4, 8, RBA Tab 74; Landolfi. supra at paras. 121, 125, RBA Tab 40; Augustine. supra at 618, RBA Tab 5; Green. supra at 203, RBA Tab 29 320 Bevis, supra at para. 19, RBA Tab 6 321 Charge to the Jury, AR Vol. I at 58 (I. 28-32) [emphasis added]. 322 Charge to the Jury, AR Vol. I at 75 (I. 2-10). 323 Objections to Charge, AR Vol. I at 105; Ruling on Objections to Charge, AR Vol. I at 109. 324 The steps which must occur before the presumption offalsity applies are as follows: (1) the trial judge determines as a matter of law that the words are capable of being defamatory; (2) the jury decides as a matter of fact that the words are actually defamatory; then, (3) the presumption offalsity applies to defamatory words. See Brown, supra at 5-267 to 5-270, 5-274 to 5- 275, and 10-61 to 10-62, RBA Tab 89. See also: Coates v. The Citizen, [1988] N.SJ. No. 189 (S.C.), at 6 and 11 (QL), RBA 52
properly found that by telling the jury, at the start, that the words were false, the judge "may have given them a negative impression about the words and about the defendants' use of the words, before the jury began their job.,,325
(ii) Failure to fairly summarize the evidence and to link the evidence to the law
125. The judge is to put "before the jury clearly and fairly the contentions on either side, omitting nothing from his charge, so far as the defence is concerned, of the real matters upon which the defence is based.,,326 It is "incumbent upon the trial judge to review the significant parts of the evidence and relate that evidence to the issues". 327
126. The Court of Appeal correctly found that the trial judge failed to fairly summarize the evidence in his charge. The judge did not review any of Webster's cross-examination in which he admitted his attempts to block Mr. Slaughter on the road, even though for every other witness the judge reviewed their evidence in chief and their cross-examination. This evidence was, as Feldman J.A. said, "important to the defendants in the context of the second aspect of the libel claim relating to how this incident was conveyed to the jury." The Star's counsel objected but the judge refused to correct the error?28
127. The judge gave an incomplete and one-sided summary of the evidence. He ignored or made only cursory mention of evidence that favoured the defendants, such as the strong public interest issues, the degree of opposition to the project, the concerns expressed by cottagers and others, Grant's economic power, his history of getting his way, his contempt for his neighbours and muzzling of the local press, and his political connections and contributions. Instead, the judge emphasized evidence of the plaintiffs, including inadmissible evidence (meanings, "special
Tab 15. This serious error oflaw, like other errors oflaw in ajury charge, should be judged on a "correctness" standard: Bevis, sUf,'a at para 19, RBA Tab 6 32 Reasons of the Court of Appeal, AR Vol. I, p. 151-152, paras. 97-101. For another example of the potential affect ofa misleading instruction on the presumption offalsity on the jury's task, see: Jameei, supra at paras. 60-61, ABA Tab 21. There, the trial judge told the jury to presume the words were false prior to asking them to decide whether the reporter's sources had confirmed the story. 326R v. Kelsey, [1953] 1 S.C.R. 220 at 227 [emphasis in original], RBA Tab 61. See also: L. V. Wolfe and Sons v. Giesbrecht, [1945] S.C.R. 441 at 447,451 [L. V. Wolfe], RBA Tab 39, citing Bray v. Ford, [1896] A.C. 44 (H.L.). The charge is to be "fair and balanced": R v. Baltovich (2004), 73 O.R. (3d) 481 (Ont. C.A.), at paras. 115, 118, RBA Tab 60 327R v. Levesque, [1999] OJ. No. 3540 (Ont. c.A.), at para. 8 [emphasis added], RBA Tab 62. See also: R. v. Stockdale (1981), 59 C.C.c. (2d) 191 (Ont. c.A.), at 192, RBA Tab 64; L. V. Wolfe, supra at 451, RBA Tab 39, citing Spencer v. Alaska Packers Association (1904),35 S.C.R. 362 at 371, RBA Tab 81 328 Reasons of the Court of Appeal, AR Vol. I at p. 150-151, paras. 95-96. And see: Charge to the Jury, AR Vol. I at 32-33; Objections to Charge, AR Vol. I at 99-100; Ruling on Objections to Charge, AR Vol. I at 108-109. 53
damages", Liberal biases). He failed to explain the significance of impeachment, even though Grant was impeached at least a dozen times. Schiller, in contrast, was never impeached. After this unfair and inadequate review of evidence the trial judge separately reviewed the law, making little or no reference to the evidence.
(iii) Errors relating to meanings
128. In addition to the improper instruction on the presumption of falsity, the trial judge made further errors relating to meanings that may have affected the jury's task, including:
• The judge failed to withdraw meanings that the article was not reasonably capable of bearing from the jury, and failed to address the Star's argument that the case should not have gone to the jury on this ground alone.329 Though he was asked,33o the judge did not rule or give any reasons on this question oflaw;331
• The judge failed to charge the jury as Lord Reid suggested in Lewis (and as he was asked to d0332), that they ought to determine what the words would convey to an ordinary person, one who is neither unusually suspicious or naIve, and does not jump to conclusions;333
• The judge unfairly read only the parts of the article quoted in the plaintiffs' claim to the juif34 - the defendants objected.335 The plaintiffs pleaded that the whole of the article was defamatory, and the defendants relied on the entire article too;336 and
329 See Defendants' Pre-Charge Submissions, AR Vol. VII at 150-160. The article is not reasonably capable of bearing any ofthe exaggerated meanings pleaded by the plaintiffs (see Statement of Claim, AR Vol. II at 16-17 (para. 39) and 20 (para. 46)), yet the judge left them all to the jury: Charge to the Jury, AR Vol. 1. at 69-70 and 72-73. Laufer, supra at paras. 25, 43, 46, 47, RBA Tab 41; Netupsky v. Craig (1970), [1971] 1 O.R. 51 (Ont. C.A.) at 65-66 [Netupsky (C.A.)], RBA Tab 53, aff'd Netupsky, supra, RBA Tab 54; Allan v. Bushnell T. V. Co. Ltd., [1969] 2 O.R. 6 (Ont. C.A.) at 15-16 [Allan], RBA Tab 3; Ross v. Lamport, [1955] O.R. 542 (Ont. c.A.) at 556-557, RBA Tab 70, varied on other grounds, [1956] S.C.R. 366, RBA Tab 71; Lewis, supra at 286, RBA Tab 44; Lysko v. Braley (2006), 79 O.R. (3d) 721 (Ont. C.A.) at paras. 115-121 [Lysko], RBA Tab 45. See also Defendants' Summary of the Law, RR Vol. III at 39-40. 330 Defendants' Pre-Charge Submissions, AR Vol. VII at 150-160. 331 The judge has a duty to give reasons as "part of his or her accountability for the discharge of the responsibilities of the office": R. v. Sheppard, [2002] 1 S.C.R. 869 at para. 55, RBA Tab 63. Canadian Broadcasting Corp. Pension Plan v. BF Realty Holdings Ltd. (2002),214 D.L.R. (4th) 121 (Ont. c.A.) at para. 64 [CBC Pension Plan], RBA Tab 12: Appellate intervention is justified where "a deficiency exists which has occasioned prejudice to the appellant's exercise of his or her legal rights to an appeal, or which operates to impede or prevent an appellate court's understanding of the basis for the trial judge's decision." In that case, there were at least some reasons - here there are none. 332 Defendants' Pre-Charge Submissions, AR Vol. VII at 155-156. 333 Lewis, supra at 259-60, RBA Tab 44. See Defendants' Pre-Charge Submissions, AR Vol. VII at 156. 334 Charge to the Jury, AR Vol. I at 62-68 and 72. 335 Objections to Charge, AR Vol. I at 105 (1. 29) to 106 (1. 5). 336 Brown, supra at 5-27 to 5-29, 5-91 to 5-94, RBA Tab 89; "The allegedly defamatory communications should be viewed in context ... The danger to be avoided is the dissection of an overall inoffensive whole into incriminating fragments, such as the passages selected and set out in the plaintiff's statement of claim": 0 'Malley, supra at 580, RBA Tab 55, cited with approval in Laufer, supra at para. 58, RBA Tab 41 54
• The judge erred in reviewing evidence as to the meaning of the article - Fleet's reaction of "disbelief that anyone would suggest they were circumventing [the judge's word] the process.,,337 Evidence of the meaning of words is inadmissible - it is for the jury to decide.338 This evidence, and the judge's review of it, "precludes the possibility of a successful argument that it might not necessarily have affected the verdict. ,,339 The judge declined to correct this error. 340
(iv) The flawed charge on the defence of justification
129. The judge never told the jury that newspapers may properly repeat allegations without adopting them as facts. 341 This defence - pleaded by the defendants342 - applies where the journalist reports "not the truth of the statements, but the fact that they were made.,,343 Additional errors included:
• positioning the "done deal" quote as a statement of fact, misleadingly, leaving out the preface that "everyone thinks it's a done deal".344 The judge also should not have sugfested that Dr. Clark's settlement retreated from the statement she made;34
• failing to clearly346 tell the jury that publishing allegations, beliefs or concerns, if reported that way, only requires proof that the allegations were made, or concerns or beliefs existed;347 and
337 Charge to the Jury, AR Vol. I at 22 (1. 30) to 23 (1. 7). Fleet had been cautioned by the court only to discuss his reaction to the article and not his understanding of the article's meaning, yet the trial judge put this in his charge. See Fleet, Exam. in-Ch., AR Vol. III at 64 (1. 3-19). 338 Brown, supra at 22-15 to 22-17, RBA Tab 89 339 Green, supra at 206, RBA Tab 29, where the S.C.C. ordered a new trial on this basis. 340 Objections to Charge, AR Vol. I at 100 (1. 22-32); Ruling on Objections to Charge, AR Vol. I at 108-109. 341 Reynolds, supra at 205, ABA Tab 29. Defendants' Pre-Charge Submissions, AR Vol. VII at 157 (I. 13-16) and 160 (I. 27) to 161 (1.6); Defendants' Summary of Law, RR Vol. III at 41. 342 Amended Statement of Defence, AR Vol. II at 31 (para. 25(f). 343 Roberts, supra at para 61, RBA Tab 67; Silva v. Toronto Star Newspapers Ltd. (1998), 167 D.L.R. (4th) 554 (Ont. Gen. Div.) at 572 [Silva], RBA Tab 79, aff'd (2002), 215 D.L.R. (4th) 77 (Ont. C.A.), RBA Tab 80; Bhaduria v. City-TV, [1998] OJ. No. 5118 (Ont. c.A.), at para. 1 (QL) [Bhaduria], RBA Tab 7; Reasons of the Court of Appeal, AR Vol. I, P 138, para. 42. 344 Charge to the Jury, AR Vol. I at 76 (I. 29-30). The judge also repeated the erroneous instruction that because the words "are capable of bearing a libellous meaning, the law presumes the words are false" in the charge on justification: Charge to the Jury, AR Vol. at 75 (I. 2-9); Reasons of the Court of Appeal, AR Vol. I, p. 151, para. 99 345 Clark, Exam. in-Ch., AR Vol. VII at 137 (I. 20-29); Charge to the Jury, AR Vol. I at 54 (I. 21-25). This was objected to: Objections to Charge, AR Vol. I at 104 (1. 10) to 105 (I. 10). The judge should also not have ignored Schiller's evidence that Dr. Clark's statement was supported by what he had heard from others (Schiller, Exam. in-Ch., AR Vol. VI at 107). See above, paras. 125-127, on the judge's duty to relate the evidence to the separate issues. 346 Contrary to the assertion of the Appellants at paras. 110-111 of their factum, the issue of reporting of allegations was not put "squarely" - or fairly - before the jury. 347 Bhaduria, supra at para. 1, RBA Tab 7; Silva, supra at 572, RBA Tab 79; Peddie v. Kerr, [1996] OJ. No. 2551 (Ont. Gen. Div.), at para. 69, RBA Tab 57; Reynolds, supra at 205, ABA Tab 29; Roberts, supra at para. 61, RBA Tab 67; Reasons of the Court of Appeal, AR. Vol. I, p. 138, para. 42 (footnote 1). The judge told the jury the defendants only had to prove the concerns were made (rather than that the substance of the allegations is true) if the article reported "only the concerns of the cottagers and nothing more". He continued that if the article "reported more than the cottagers' allegations, then for the defence of justification 55
• relying on an unfair example that tainted the entire charge on the reporting of allegations.348
130. The judge also improperly instructed the jury on substantial truth. He said "it means proving the gist and substance", but failed to tell the jury, as requested,349 that every word need not be proven or that inaccuracies will not bar the defence. He should have stated that so long as the gist of the incident with the photographer was reported accurately - which the cross examination of Webster established - the defence was made out. 350
(b) Errors relating to damages
(i) Improper admission of evidence of "special damages"
131. The judge wrongly permitted much testimony asserting alleged delay in MNR approval of the golf course, supposedly caused by the article. This issue had not been pleaded but was raised just before trial.351 The defendants repeatedly objected to the admission of this evidence352, but the "delay" issue became a central focus of the trial. It was emphasized by the judge in his charge: "you should take into consideration ... whether or not the libel [the judge's word] delayed the approval of the project".353 The judge also:
• highlighted Fleet's statements that he feared the process would "grind to a halt", and that, in his view, "the MNR proceeded with this matter at a very slow pace even by government standards". The judge repeated Grant's assertion that the article "scared the hell out of the bureaucrats" but failed to point out that Grant
to succeed, the substantial truth of the whole article must be proved": Charge to the Jury, AR Vol. I at 83 (I. 1-16). Such an instruction was confusing, and prejudicial to the defendants, where the article clearly reports more than just cottagers' concerns. 348 The judge said if the defendant wrote "John Smith told me that George Brown stole a motor car" the defendant would have to prove that Brown stole the car, not just that Smith said it: Charge to the Jury, AR Vol. I at 75 (I. 22) to 76 (I. 1). This charge relating to the repetition of a D!!!lQill: nullified the allegations defence where the judge did not explain the difference between rumour and suspicion (or allegation), as he was asked to do: Defendants' Pre-Charge Submissions, AR Vol. VII at 158 (I. 25) to 160 (I. 25); Silva, supra at 572, RBA Tab 79; see also Lewis, supra at 274-275, RBA Tab 44. The Court of Appeal correctly noted that "examples used to illustrate points of law are best taken from the evidence itself': Reasons of the Court of Appeal, AR Vol. I, p. 152, para 102. 349 Defendants' Pre-Charge Submissions, AR Vol. VII at 160 (I. 27) to 162 (I. 19); see also Defendants' Summary of Law, RR Vol. III at 40-41; see Part VII for s. 22 of the Act. 350 Gatley, supra at para. 11.9, RBA Tab 88; Sidorsky v. CFCN Communications Ltd. (1994),23 Alta. L.R. (3d) 116 (Q.B.), at para. 187, RBA Tab 76; Peddie, supra at para. 60; RBA Tab 57; Edwards v. Bell (1824), 130 E.R. 162 (C.P.), 1 Bing 403 at 409, RBA Tab 24 351 There had been no discovery, documents were only produced just before and during the trial. 352 Submissions Re: Evidence of Special Damages, RR Vol. III at 86-100, and 105-129; Rulings Re: Evidence of Special Damages, RR Vol. I at 9-15. 353 Charge to the Jury, AR Vol. I at 94 (I. 16-23). 56
admitted he had no contact with the bureaucrats and that Grant thouWt the MNR was delaying things as early as 1998 - three years before the article!3 4
• reviewed GFP lobbyist Sheila Willis' evidence and her view that "the process had been held up for no reason", but failed to draw attention to her admissions in cross-examination that this was a unique proposal (she was unaware of any other personal, private golf course in Ontario)35 which would take time to approve.356
132. The Court of Appeal correctly found that the evidence of delay was hearsay and speculative at best - nobody from the government was called to say the process slowed due to the article - and that the judge ought to have told the jury this.357
133. Further, this evidence is of (alleged) special damage, which is inadmissible unless pleaded with particularity.358 No special damages were pleaded in this case.359 Pleadings are especially important in libel actions. 360 The alleged delay involved specific acts or omissions of a third party (the MNR), and should have been pleaded.361 Its admission, and the judge's 362 comments on it, compromised trial fairness.
354 Charge to the Jury, AR Vol. I at 22 (1. 23) to 23 (I. 7), and at 40 (1. 20-24); Fleet, Exam. in-Ch., AR Vol. III at 64 (I. 3-31), and 68 (I. 18) to 69 (I. 18); Fleet, Cr-ex., AR Vol. IV at 17-44 (see, in particular, at 44 (I. 17-32)); Grant, Cr-ex., AR Vol. V at 78 (I. 2) to 80 (I. 7), at 125 (I. 18-28) and at 151 (I. 24) to 152 (I. 23). 355 Willis, Cr-ex., AR Vol. N at 117 (I. 1-29) and 136 (I. 12-24). Willis, a lobbyist retained by GFP long after the article was published, said she felt this wasn't a "typical file" when a colleague showed her the article - about ten months after she started working on this issue (Willis, Exam. in-Ch., AR Vol. IV at 103 (I. 18) to 104 (I. 15)). Grant and GFP had never even brought it to her attention (Willis, Cr-ex., AR Vol. N at 139 (I. 31) to 140 (I. 13). 356 Charge to the Jury, AR Vol. I at 29 (I. 4) to 32 (I. 12). The judge also reviewed Willis' correspondence with the MOE and MNR, which was only produced during the trial: Charge to the Jury, AR Vol. I at 30 (I. 7) to 31 (I. 25). 357 Reasons of the Court of Appeal, AR Vol. I, p. 152, para. 103. 358 General damages are "at large" and compensate for harm to reputation and distress, whereas special damages deal with material or temporal loss which is either a pecuniary loss or is capable of being estimated in money: see Brown, supra at 25-29 to 25-33, RBA Tab 89; Pootlass v. Poot/ass (1999), 63 B.c.L.R. (3d) 305 (S.C.), at paras. 64-65, RBA Tab 59; Romano v. D'Onofrio (2004), 246 D.L.R. (4th) 720 (Ont. Sup. Ct. J.), at paras. 35-36, RBA Tab 68, rev'd on other grounds (2005),77 O.R. (3d) 583 (Ont. C.A.), RBA Tab 69; Dominion Telegraph Co. v. Silver (1882),10 S.C.R. 238 at 263 [Dominion Telegraph], RBA Tab 22 359 Statement of Claim, AR Vol. II at 4. 360 Pleadings in an action for defamation are of utmost importance: Brown, supra at 19-2 to 19-3, RBA Tab 89; " ... [p]leadings in defamation cases are more important than in any other class of actions": Lysko, supra at para. 91, RBA Tab 45. A party is bound by its pleadings and cannot adduce evidence at trial which is inconsistent with those pleadings: Brown, supra at 19-9, RBA Tab 89; Dominion Telegraph, supra at 273, RBA Tab 22; Laufer, supra at para. 24, RBA Tab 41 361 Dominion Telegraph, supra at 263, RBA Tab 22. Where inadmissible evidence has gone before the jury, a new trial should be granted unless it can be found that the evidence could not have influenced the result: Leslie, supra at 874, RBA Tab 43; Schwartz, supra at paras. 4, 8, RBA Tab 74; Landolfi, supra at paras. 121, 125, RBA Tab 40 362 Landolfi, supra at para. 125, RBA Tab 40; Augustine, supra at 618, RBA Tab 5 57
(ii) Errors in the charge on damages
134. As the Court of Appeal ordered a new trial, it did not address the issue of damages. However, the 'brief363 charge on damages compounded earlier errors and contained further errors that exacerbated the unfairness of the charge as a whole, including:
• saying that general damages must be "fair to both the plaintiffs and the defendants, ,,304 but not telling the jury any factors that would be "fair" to the defendants and which the judge was asked to dO,365 such as:
• the complete lack of evidence of any damage to Grant's or GFP's reputation or feelings or mental state; if anything the opposite was established,366 which would support nominal damages - an issue not addressed by the judge at all;
• that a right to comfensatory damages does not imply a right to substantial damages;3 7
• that high damage awards can have a deleterious impact on freedom of speech;368
• that damages can be mitigated by partial justification, and context;369 • that evidence of "delay" was not proven or was too remote to have flowed naturally and directly from the article, but "arose independent of the publication, or ... [was] caused by the truthful aspects of the ---article,,·37o,
363 Too brief - it only takes up 6 pages in transcript. See Charge to the Jury, AR Vol. I at 92-97. 364 Charge to the Jury, AR Vol. I at 93 (1. 13-14). 365 Defendants' Pre-Charge Submissions, AR Vol. VIII at 13 (1. 17) to 16 (1. 29). See also Defendants' Summary of Law, RR Vol. III at 49-52. 366 Grant could point to no damage to his reputation from the article. Grant continues to have an excellent reputation in his community. GFP continues to have an excellent reputation among government authorities. The charity golf tournament continues to thrive. GFP has grown and prospered, opening two new plants in the United States at a cost in excess of $500 million. Grant was hard-pressed to name anyone who even mentioned the article to him, other than employees and his immediate family: see Grant, Cr-ex., AR Vol. V at 150 (I. 7) to 153 (1. 27); Grant, Exam. in-Ch, AR Vol Vat 33 (I. 31) to 34 (I. 5); McLeod, Exam. in-Ch., AR Vol. IV at 56 (I. 3-28). Walker v. eFTa Ltd. (1987), 59 O.R. (2d) 104 (Ont. C.A.) [Walker], RBA Tab 86 367 Walker, supra, RBA Tab 86 368 Derrickson v. Tomat (1992),88 D.L.R. (4th) 401 (B.C.C.A.), at 406-408, RBA Tab 21 369 P.G. Restaurant Ltd. v. Northern Interior Regional Health Board (2005),38 B.C.L.R. (4th) 77 (C.A.), at paras. 57-63 [P.G. Restaurant], add'l reasons at (2005),41 B.C.L.R. (4th) 55 (C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 270, all documents at RBA Tab 56; Brown, supra at 25-226, RBA Tab 89 370 P.G. Restaurant, supra at para. 63 [emphasis added], RBA Tab 56; Brown, supra at 25-2 to 25-3, RBA Tab 89 58
• making reference to Grant's wife (who he subsequently divorced) thinking less of him, even though it had nothing to do with the article. The judge refused to correct this;37l and
• failing to adequately link his charge on the law to evidence.
135. The judge should not have charged the jury on aggravated or punitive damages at all (as counsel submitted),372 given the absence of malice.373 His errors in charging the jury on malice, discussed earlier, apply here.374 But he committed more errors, including:
• failing to tell the jury that aggravated damages should not provide double recovery, as hurt feelings are already included in general damages - malice must aggravate the impact or have "increased the injury" of hurt feelings;375
• making unfair reference to factors that were unsupported by the evidence, or which ought to have been linked in a fair way to evidence - e.g., his emphasis on the "sad truth" of the lack of an apology, any repetition of the libel (there wasn't any), a "prolonged and hostile cross-examination" (there wasn't any), and a "plea of justification [that] was bound to fail" (not applicable);376
• spending only 29 lines on punitive damages,377 in which he merely stated the test in the most general way, but failed to caution the jury that punitive damages are rare, should be approached rationally, and should only be imposed if compensatory damages are insufficient to achieve the goals of retribution, deterrence and denunciation;378 and
• failing to refer to the Whiten factors, as he was asked to do,379 which would have properly brought home to the jury that punitive damages should not have been awarded. 380
371 See Grant, Cr-ex., AR Vol. V at 150 (I. 13-26). But then see: Charge to the Jury, AR Vol. I at 40 (I. 14-16); Objections to Charge, AR Vol. I at 103 (I. 9-15); Ruling on Objections to Charge, AR Vol. I at 108-109. 372 Defendants' Pre-Charge Submissions, AR Vol. VIII at 13 (I. 18) to 14 (I. 4). 373 Allan, supra at 17-18, RBA Tab 3. As the judge provided no reasons on the legal question of whether or not there was sufficient evidence of malice to be left to the jury, thereby precluding meaningful appellate review of his decision to leave malice (and along with it, aggravated and punitive damages) to them, that decision ought not to be afforded any deference. Supra note 331. 374 Supra paras. 63-66. 375 Hill, supra at para. 190, RBA Tab 31; Walker, supra at 111-112, RBA Tab 86 376 Charge to the Jury, AR Vol. I at 94 (I. 9-14) and 96 (I. 1-17). 377 Charge to the Jury, AR Vol. I at 96 (I. 29) to 97 (I. 26). 378 " ••. [T]he jury should be instructed to consider first whether the sum that they intend to award to the defamed plaintiff as compensation is itself adequate for the purposes of punishment and deterrence; if, and only if, it is not should they go on to award exemplary damages.": Walker, supra at 121 [emphasis added], RBA Tab 86. See also: Whiten v. Pilot Insurance Co .• [2002] 1 S.C.R. 595 at para. 94 [Whiten], RBA Tab 87; Hill, supra at para. 196, RBA Tab 31; Hodgson, supra at para. 63, RBA Tab 33 379 Defendants' Pre-Charge Submissions, AR Vol. VIII at 14 (I. 1-25). See: Whiten, supra at para. 94, RBA Tab 87 380 Whiten, supra at para. 94, RBA Tab 87 59
(iii) The damages award cannot stand
136. The "basic principle" is that "libel damage awards ... should be based upon a rational attempt to measure in money terms the loss and injury the plaintiff has suffered.,,381 Here, the compensatory awards are "so inordinately large" and "so grossly out of proportion to the libel as to shock the court's conscience and sense ofjustice.,,382 The jury clearly did not address relevant facts (it wasn't told to) and the award "bears no reasonable relationship to either the circumstances of the case or the injury inflicted" - of which there was none. 383
137. Appellate review of punitive damages is "based upon the court's estimation as to whether the punitive damages serve a rational purpose.,,384 As in Hodgson and Walker, the punitive damages should be vacated, as the large award of compensatory damages reflects "strong disapproval" and more than satisfies the goals of punishment and deterrence.385
138. These awards, if allowed to stand, will have a chilling effect on speech and on the press. The total amount ($1.47SM) is enough to put many papers out of business, and is out of all proportion to the modest average awards noted by this Court in Hill ($20,000 to $30,000) when it stated that "a review of jury verdicts in Canada reveals that there is no danger of numerous large awards threatening the viability of media organizations.,,386 As Justice Binnie stated in Neron:
An award of this size built on such a thin foundation can only discourage the fulfilment by the media of their mandate in a free and democratic society to afflict the comfortable and to comfort the afflicted .. ?87
PART IV - SUBMISSIONS CONCERNING COSTS
139. The Star seeks its costs of the cross-appeal, as well as in the courts below.
381 Hodgson, supra at para. 72, RBA Tab 33 382 Walker, supra at 110, RBA Tab 86, quoted with approval in Hill, supra at para. 159, RBA Tab 31 383 Walker, supra at 110-111, RBA Tab 86. See also: Laufer, supra at para. 118, RBA Tab 41; Netupsky (C.A.), supra at 70, RBATab53 384 Hill, supra at para 197, RBA Tab 31 385 Hodgson, supra at paras. 64-65, RBA Tab 33; Walker, supra at 121-122, RBA Tab 86. As this Court observed in Whiten, supra at para. 75, RBA Tab 87 " ... it has become evident that juries can and should receive more guidance and help from the judges in terms of their mandate. They should be told in some detail about the function of punitive damages and the factors that govern both the award and the assessment of a proper amount." (see also para. 93). The trial judge completely failed to provide the jury with appropriate guidance on how to rationally assess punitive damages. 386 Hill, supra at paras. 140, 169, RBA Tab 31; see also Hodgson, supra at paras. 72-73, RBA Tab 33 387 Neron, supra at para. 83, (in dissent), RBA Tab 26 60
PARTV-ORDERSOUGHT
140. The Star respectfully requests that the cross-appeal be allowed, that the judgment of the Ontario Court of Appeal be varied and the action be dismissed with costs. Alternatively, this Court should direct a new trial.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 7th day of April, 2009.
Z~··, Iris Fischer
Counsel for the Respondents/ Appellants on Cross-Appeal 1
PART VI - TABLE OF AUTHORITIES
Authority Paragra~h( s}
1. Alexander v. Arts Council of Wales, [2001] 4 All E.R. 205 (C.A.) 99, 107
2. Allan v. Bushnell T. V. Co. Ltd., [1969] 2 O.R. 6 (ant. C.A.) 128, 135
3. Associated Newspapers Ltd. v. Burstein, [2007] EWCA Civ 600 100, 101
4. Augustine Automatic Rotary Engine Co. ofCanada Ltd. v. Saturday 123, 133 Night Ltd. (1917),38 O.L.R. 609 (S.C. (A.D.))
5. Bevis v. Burns, 2006 NSCA 56 123, 124
6. Bonnickv. Morris & Drs. (Jamaica), [2003] 1 A.C. 300 (P.C.) 115, 116, 118
7. Bhaduria v. City-TV, [1998] 0.1. No. 5118 (ant. C.A.) 129
8. Bray v. Deutsche BankAG, [2008] EWHC 1263 (Q.B.) 116
9. Campbell v. Jones, [2001] N.S.J. No. 373 (S.C.) 107
10. Campbell v. Jones (2002), 220 D.L.R. (4th) 201 (N.S.C.A.) 107
11. Canadian Broadcasting Corp. Pension Plan v. BF Realty Holdings 128 Ltd. (2002),214 D.L.R. (4th) 121 (ant. C.A.)
12. Charman v. Orion Group Publishing Group Ltd., [2007] EWCA Civ 116 972
13. Coates v. The Citizen, [1998] N.SJ. No. 189 (S.C.) 124
14. Creative Salmon Company Ltd. v. Staniford, 2009 BCCA 61 104, 109
15. Davies & Davies Ltd. v. Kott, [1979] 2 S.C.R. 686 107, 110
16. Derrickson v. Tomat (1992),88 D.L.R. (4th) 401 (B.C.C.A.) 134
17. Dominion Telegraph Co. v. Silver (1882), 10 S.C.R. 238 133
18. Douglas v. Tucker, [1952] 1 S.C.R. 275 114
19. Edwards v. Bell (1824), 130 E.R. 162 (C.P.), 1 Bing 403 130
20. Geenty v. Channel Four Corp. and Another, [1998] E.M.L.R. 524 120 (C.A.) 11
Authority Paragraph(s)
2l. Gilles E. Neron Communication Marketing Inc. v. Chambre des 138 notaires du Quebec, [2004] 3 S.C.R 95
22. Gillickv. BrookAdvisory Centre & Another, [2001] EWCA Civ 1263 120 (C.A.)
23. Green v. Miller (1903),33 S.C.R. 193 123, 128
24. Hill v. Johnston, [2006] A.J. No. 318 (Q.B.) 107
25. Hodgson v. Canadian Newspapers Co. (2000),49 O.R. (3d) 161 111, 135, 136, (Ont. C.A.) 137, 138
26. Horrocks v. Lowe, [1975] A.C. 135 (H.L.) 110
27. Jameel v. Wall Street Journal Sprl, [2004] EWHC 37 (Q.B.) 114, 122
28. Jameel v. Wall Street Journal Sprl, [2005] 4 All E.R. 356 (C.A.) 114
29. Jameel v. Wall Street Journal Sprl, [2007] 1 A.C. 359 (H.L.) 107, 119, 122, 124
30. Jones v. Skelton, [1963] 1 W.L.R. 1362 (P.C.) 118
31. L. V. Wolfe and Sons v. Giesbrecht, [1945] S.C.R. 441 125
32. Landolfi v. Fargione (2006), 79 O.R. (3d) 767 (Ont. C.A.) 123, 133
33. Laufer v. Bucklaschuk (1999), 181 D.L.R. (4th) 83 (Man. C.A.), leave 118,128,136 to appeal to S.C.C. refused, [2000] S.C.C.A. No. 77
34. Leslie v. The Canadian Press, [1956] S.C.R. 871 123, 133
35. Lewis v. Daily Telegraph Ltd., [1964] A.C. 234 (H.L.) 118, 128, 129
36. Lysko v. Braley (2006), 79 O.R. (3d) 721 (Ont. C.A.) 128, 133
37. Mantini v. Smith Lyons LLP (No.2) (2003), 64 O.R. (3d) 516 (Ont. 118 C.A.)
38. McKearney v. Petro-Canada Inc. (1994),25 C.P.C. (3d) 218 107 (B.C.S.C.)
39. McNichol v. Ardiel (1978), 22 O.R. (2d) 324 (Ont. C.A.) 114
40. Netupsky v. Craig (1970), [1971] 1 O.R. 51 (Ont. c.A.) 128, 136 111
Authority Paragraph(s)
41. Netupsky v. Craig, [1973] S.C.R. 55 107
42. O'Malley v. o 'Callaghan (1992), 89 D.L.R. (4th) 577 (Alta. Q.B.) 111, 128
43. P.G. Restaurant Ltd v. Northern Interior Regional Health Board 134 (2005),38 B.C.L.R. (4th) 77 (C.A.), add'l reasons at (2005), 41 B.C.L.R. (4th) 55 (C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 270
44. Peddie v. Kerr, [1996] O.J. No. 2551 (Ont. Gen. Div.) 129, 130
45. Pootlass v. Pootlass (1999), 63 B.C.L.R. (3d) 305 (S.C.) 133
46. R. v. Baltovich (2004), 73 O.R. (3d) 481 (Ont. c.A.) 125
47. R. v. Kelsey, [1953] 1 S.C.R. 220 125
48. R. v. Levesque, [1999] 0.1. No. 3540 (Ont. C.A.) 125
49. R. v. Sheppard, [2002] 1 S.C.R. 869 128
50. R. v. Stockdale (1981), 59 C.C.c. (2d) 191 (Ont. c.A.) 125
51. R. v. Zundel, [1992] 2 S.C.R. 731 102, 117
52. Reynolds v. Times Newspapers Ltd, [2001] 2 A.C. 127 (H.L.) 119, 129
53. Roberts v. Gable, [2007] EWCA Civ 721 111
54. Romano v. D'Onofrio (2004), 246 D.L.R. (4th) 720 (Ont. Sup. Ct. l) 133
55. Romano v. D'Onofrio (2005), 77 O.R. (3d) 583 (Ont. C.A.) 133
56. Ross v. Lamport, [1955] O.R. 542 (Ont. C.A.) 128
57. Ross v. Lamport, [1956] S.C.R. 366 128
58. Ross v. New Brunswick Teachers Assn. (2001),201 D.L.R. (4th) 75 101 (N.B.C.A.)
59. RTC Engineering Consultants Ltd v. Ontario (Solicitor General) 109 (2002), 58 O.R. (3d) 726 (Ont. C.A.)
60. Schwartz v. De Pauw (1985),16 O.A.C. 66 (Ont. c.A.) 123, 133
61. Scott v. Fulton (2000), 73 B.C.L.R. (3d) 392 (C.A.) 100 iv
Authority Paragraph(s)
62. Sidorsky v. CFCN Communications Ltd (1994),23 Alta. L.R. (3d) 130 116 (Q.B.)
63. Silbernagel v. Empire Stevedoring Company Ltd. (1979), 18 B.C.L.R. 107 384 (S.C.)
64. Silva v. Toronto Star Newspapers Ltd. (1998), 167 D.L.R. (4th) 554 129 (Ont. Gen. Div.)
65. Silva v. Toronto Star Newspapers Ltd. (2002),215 D.L.R. (4th) 77 129 (Ont. C.A.)
66. Spencer v. Alaska Packers Association (1904),35 S.C.R. 362 125
67. Taylor v. Despard, [1956] O.R. 963 (Ont. c.A.) 107, 114, 121
68. Telnikoffv. Matusevitch, [1991] 3 W.L.R. 952 (H.L.) 100
69. Walker v. CFTO Ltd. (1987),59 O.R. (2d) 104 (Ont. C.A.) 134, 135, 136, 137
70. Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595 135, 137
71. WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420 99, 100, 101, 103, 104, 107, 108,109,111, 116,
DOCTRINE Authority Paragraph(s) 72. Patrick Milmo & W.V.H. Rogers, eds., Gatley on Libel and Slander, 130 10th ed. (London: Sweet & Maxwell, 2004) [excerpts] 73. Raymond E. Brown, The Law ofDefamation in Canada, 2d ed., 101, 124, 128, looseleaf (Scarborough: Carswell, 1999) [excerpts] 133, 134 74. Roger D. McConchie & David A. Potts, Canadian Libel and Slander 101 Actions (Toronto: Irwin Law, 2004) [excerpts] v
PART VII - RELEVANT STATUTES, REGULATIONS AND RULES
Canadian Charter ofRights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11
Fundamental Freedoms
2. Everyone has the following fundamental freedoms: ...
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; * * * Libertes fondamentales
2. Chacun ales libertes fondamentales suivantes : ...
b) liberte de pensee, de croyance, d'opinion et d'expression, y compris la liberte de la presse et des autres moyens de communication; VI
Libel and Slander Act, R.S.O. 1990, c. L.12
Justification 22. In an action for libel or slander for words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges. R.S.O. 1990, c. L.12, s. 22. Fair comment 23. In an action for libel or slander for words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved. R.S.O. 1990, c. L.12, s. 23. Fair comment 24. Where the defendant published defamatory matter that is an opinion expressed by another person, a defence of fair comment by the defendant shall not fail for the reason only that the defendant or the person who expressed the opinion, or both, did not hold the opinion, if a person could honestly hold the opinion. RS.O. 1990, c. L.12, s. 24. * * *
Justification 22. Dans une action en libelle diffamatoire ou en diffamation verbale decoulant de mots qui contiennent deux allegations ou plus contre Ie demandeur, la defense de justification ne doit pas etre rejetee au seul motif que la veracite de chacune des allegations n' est pas etablie, si les mots dont la veracite n'a pas ete etablie n'ont pas cause un prejudice substantiel a la reputation du demandeur, eu egard a la veracite des autres allegations. L.RO. 1990, chap. L.12, art. 22. Commentaire loyal 23. Dans une action en libelle diffamatoire ou en diffamation verbale decoulant de mots qui expriment a la fois des allegations de fait et des opinions, la defense de commentaire loyal ne doit pas etre rejetee au seul motif que la veracite de chacune des allegations de fait n'est pas etablie si l'opinion exprimee constitue un commentaire loyal, eu egard aux faits allegues ou mentionnes dans les mots reproches qui sont etablis. L.RO. 1990, chap. L.12, art. 23. Commentaires loyaux par un tiers 24. Si Ie defendeur a publie un fait diffamatoire qui constitue l'opinion qu'un tiers a exprimee, la defense de commentaire loyal ne doit pas etre rejetee au seul motif que Ie defendeur ou la personne qui a exprime l'opinion, ou les deux, n'a pas cette opinion, si une personne pouvait honnetement avoir cette opinion. L.R.O. 1990, chap. L.12, art. 24. vii
U.K. Civil Procedure Rules, Practice Direction Part 53
(accessible online at: http://www.justice.gov .uk! civil/procrules _fin/)
RULING ON MEANING
4.1 At any time the court may decide-
(1) whether a statement complained of is capable of having any meaning attributed to it in a statement of case;
(2) whether the statement is capable of being defamatory of the claimant;
(3) whether the statement is capable of bearing any other meaning defamatory of the claimant.
4.2 An application for a ruling on meaning may be made at any time after the service of particulars of claim. Such an application should be made promptly.
(This provision disapplies for these applications the usual time restriction on makingapplications in rule 24.4.1).
4.3 Where an application is made for a ruling on meaning, the application notice must state that it is an application for a ruling on meaning made in accordance with this practice direction.
4.4 The application notice or the evidence contained or referred to in it, or served with it, must identify precisely the statement, and the meaning attributed to it, that the court is being asked to consider.
(Rule 3.3 applies where the court exercises its powers on its own initiative)
(Following a ruling on meaning the court may exercise its power under rule 3.4)
(Section 7 of the Defamation Act 1996 applies to rulings on meaning). SCC File No.: 32932
IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
BETWEEN:
PETER GRANT and GRANT FOREST PRODUCTS INC. Appellants/ Respondents on Cross-Appeal (Respondents) -and-
TORSTAR CORPORATION, TORONTO STAR NEWSPAPERS LIMITED, BILL SCHILLER, JOHN HONDERICH and MARY DEANNE SHEARS Respondents/ Appellants on Cross-Appeal (Appellants) -and-
THE OTTAWA CITIZEN, CANADIAN NEWSPAPER ASSOCIATION, AD IDEM/CANADIAN MEDIA LAWYERS ASSOCIATION, RTNDA CANADA/THE ASSOCIATION OF ELECTRONIC JOURNALISTS, MAGAZINES CANADA, CANADIAN ASSOCIATION OF JOURNALISTS, CANADIAN JOURNALISTS FOR FREE EXPRESSION, THE WRITERS' UNION OF CANADA, PROFESSIONAL WRITERS ASSOCIATION OF CANADA, BOOK AND PERIODICAL COUNCIL, PEN CANADA, CANADIAN BROADCASTING CORPORATION, CANADIAN CNIL LIBERTIES ASSOCIATION, and DANNO CUSSON Interveners FACTUM OF RESPONDENTS ON APPEAL/ FACTUM OF APPELLANTS ON CROSS-APPEAL
BLAKE CASSELS & GRAYDON LLP Box 25, Commerce Court West Toronto, ON M5L IA9 Fax: 416.863.2653
Paul B. Schabas LSUC#: 26355A Tel: 416.863.4274 Email: [email protected]
Erin Boult LSUC#: 54002C Tel: 416.863.4011 Email: [email protected]
Iris Fischer LSUC# 52762M Tel: 416.863.2408 Email: [email protected]
Counsel for the Respondents/Appellants on Cross-Appeal 21862358.13