Canada: Largest Individual Defamation Award Given In Alberta

On June 8, 2016, the Court of Queen's Bench of Alberta released a 60 page ruling in the cases of Kent v. Martin and Kent v. Postmedia, awarding $150,000 in general damages for the print publication of a defamatory article, and a further $50,000 for continuing online publication. Costs of the legal proceedings remain to be determined.

Defamation cases rarely go to trial in Alberta and even more rarely is the Plaintiff granted substantial damages. This trial decision is of interest because it addresses print and online defamation as well as the defences of qualified privilege, justification, and reasonable journalistic conduct.

Understanding this ruling is important for those engaged in large-scale public communications including publishers, journalists, public relations experts, bloggers and those who advise or teach them.

This decision provides a thorough overview of defamation law related to media publications in Canada, and represents the most current application of the defence of Responsible Communication on Matters of Public Interest established by the Supreme Court of Canada in Grant v. Torstar Corp.

That defence provides that, even if the statements made or comments published defame the Plaintiff, if the matter communicated about is of public interest and the defendant acted responsibly with proper diligence, defamatory statements will not attract liability.

Background

Arthur Kent is an Emmy Award winning journalist and documentary film producer who rose to fame during the Gulf War earning himself the nickname the "Scud Stud". After an extensive career out in the field reporting around the world, Mr. Kent returned to his home Province of Alberta to run as a candidate for the Progressive Conservatives in the 2008 Provincial Election.

During the course of his election campaign, on February 12, 2008, the Calgary Herald, Edmonton Journal, and National Post published, in print, an article written by Don Martin which contained serious factual errors related to his campaign and which also heavily impugned Mr. Kent's character. Although some parts of the article contained opinion, it was published on the "Top News" page. The article was also published on the Defendants' many websites and was available for viewing for nearly five years until Mr. Kent achieved its removal from those websites in November 2012.

After the initial publication, Mr. Kent pointed out errors in the article and asked the news organization to publish his written response, but they refused. Publishing Mr. Kent's response would have ended the matter. Instead, litigation commenced in 2008 and was vigorously contested by both sides, resulting in numerous reported and unreported decisions regarding procedural matters pursuant to the Alberta Rules of Court.

In October 2015 Mr. Kent retained Kent Jesse at McLennan Ross LLP to assist him at trial. The trial commenced in November 2015 and was concluded by December 2015. Over 30 witnesses testified including journalism standards and ethics experts and over 200 exhibits were entered for consideration by the Court.

The Findings

The Court analyzed defences which included Qualified Privilege (where there is a duty or pressing need to disclose information), Justification (where the defendant establishes that the statements were substantially true), and Responsible Communication on Matters of Public Interest. The court quickly rejected the defences of Qualified Privilege and Justification, with the bulk of the decision focusing on the Responsible Communications Defence.

The Court found that the defendants had not established the defence of Responsible Communication based upon seven factors:

  • the seriousness of the allegation,
  • the public importance of the matter,
  • the urgency of the matter,
  • the status and reliability of the sources
  • whether Mr. Kent's side of the story was sought out and accurately reported
  • whether the inclusion of the defamatory statements was justifiable, and
  • whether the defamatory statements' public interest lay in the fact it was made rather than its truth (the reportage defence).

The application of these factors resulted in a decision in favour of Mr. Kent for several reasons, two which are set out here: First, the defendants used, and concealed the identities of, sources whom they knew had an axe to grind with Mr. Kent, but did not take reasonable steps to verify the information they provided. The concealment of the sources deprived a reader of determining whether the sources were reliable. Second, "it is inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond" (from Grant v. Torstar). The Court found that given the harsh tone of the article, the defendants did not make sufficient efforts to reach Mr. Kent for verification of facts or comment.

The Court found that the defendants' level of diligence fell far short of what was required in the circumstances and found the article to be defamatory. The Court also found that parts of the article presented as fact were untrue, and the article had a harsh and sarcastic tone, based in part on those factual assertions which were actually false. The article damaged Mr. Kent's reputation and was found to cause right-thinking members of society to think less of Mr. Kent.

How to Avoid Liability in Similar Situations

This decision shows that liability for defamation can result when there is a failure to verify facts before publishing a highly critical piece which also contains significant errors. It also demonstrates the pitfalls of proceeding with pre-conceived notions instead of investigating to obtain the facts. Journalists in particular are expected to look for all sides of a story, not merely latch onto one idea and then make efforts to dig up information that only supports that pre-conceived notion. On the facts in this case, the journalist in question was found to have been actively seeking "more dirt".

Hard-hitting, critical pieces can be published, provided the facts are accurate. Verification of facts is crucial when relying upon sources with an axe to grind. When relying upon those sources, resist concealing them unless there is a pressing need to do so. Lastly, if a critical piece is published, provide the subject of the piece a genuine opportunity to respond.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
19 Dec 2017, Webinar, Calgary, Canada

McLennan Ross previously conducted a webinar on June 6, 2017 about the passage of Bill 17, during which we reviewed the changes to the Employment Standards Code and the Labour Relations Code. During that webinar, we identified a number of issues which would depend upon the language of the Regulations, which had not yet been developed.

24 Oct 2018, Webinar, Calgary, Canada

A written employment agreement is an often ignored best practice for non-union employers. A written agreement can be a critical risk management tool if it properly sets out duties, rights and expectations both during the employment relationship and after it ends.

5 Nov 2018, Webinar, Calgary, Canada

Who Should Attend: This webinar is intended for superintendents of schools, central office personnel, HR personnel, in house counsel and school board trustees.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions