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FACTUM of RESPONDENTS on APPEAL! FACTUM of APPELLANTS on CROSS-APPEAL (Pursuant to Rules 42 and 43 of the Rules Ofthe Supreme Court Ofcanada)

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FACTUM of RESPONDENTS on APPEAL! FACTUM of APPELLANTS on CROSS-APPEAL (Pursuant to Rules 42 and 43 of the Rules Ofthe Supreme Court Ofcanada) 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
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