In Kwok v. Canada (NSERC), 2013 ABQB
395, the Alberta Court of Queen's Bench held that
journalistic source privilege applies to some of the contents of
the information given to a journalist, even though the sources of
the information are known to the plaintiff.
Between 2001 and 2005, the University of Alberta employed Dr.
Kwok as an assistant professor. Dr. Kwok received
research grants from the National Sciences and Engineering Council
of Canada ("NSERC"). The University of Alberta
subsequently determined that Dr. Kwok violated a University Policy
by improperly duplicating his publications in multiple journals,
and that he had misappropriated some NSERC grant money.
Dr. Kwok and the University of Alberta reached a
settlement, whereby Dr. Kwok agreed to pay funds to the
University of Alberta. Afterwards, in late 2008,
the University of Alberta provided its investigation reports
confirming the duplication of publications and
misappropriation of grant money complaints to NSERC. In 2009,
NSERC terminated the grants it had awarded Dr. Kwok, and banned him
from receiving further NSERC funding.
In 2010, Canwest and the National Post reporters published
articles that accused Dr. Kwok of plagiarism and misusing grant
Dr. Kwok sued eight Defendants, including representatives of
NSERC and the two journalists, alleging defamation and breach of
contract. In this proceeding, one of the issues was whether a
Canwest journalist should be compelled to answer questions that her
counsel objected to on the basis of journalistic source
Dr. Kwok argued that the communications between the journalist
and the sources were not privileged because the identity of the
sources were known. Canwest argued that knowledge of the
source's identity is not incompatible with an assertion of
privilege, and that there was an alternative method by which Dr.
Kwok could obtain the information he sought, because he was able to
question the source directly. The Court agreed with Canwest, and
held that the Wigmore test was satisfied and the information was
protected. In finding that the relationship between the journalist
and her source was one to be sedulously fostered, the Court noted
that the intent of the journalist's story appeared to be
ensuring that public funds were properly accounted for (para.162).
The Court held that the availability of an alternate route to
obtain the information was relevant, citing R v. National
Post, 2010 SCC 16.
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