It's not often that our little blog intersects with such
titanic struggles as the U.S. presidential race – and by
using the term "titanic" I certainly don't mean to
suggest that anything disastrous is in the future.
After the New York Times published personal allegations of
sexual assault against presidential candidate Donald Trump, the
candidate's lawyers promptly fired a shot across the bow,
threatening legal action for libel and demanding that the article
be removed from the Times's website. Last week, the lawyer for
the New York Times responded to lawyers for Mr.
Trump with a succinct defense of their
publication of the article, arguing "We did what the law
allows: We published newsworthy information about a subject of deep
If this had happened in Canada, the law would almost certainly
favour the position taken by the Times. In Quan v.
Cusson,  3 SCR 712, the Supreme Court of
Canada confirmed the defense of "responsible communication on
matters of public interest" permitting journalists to report
on matters of public interest. That case, interestingly, dealt with
an Ontario police officer who attended in New York City shortly
after the events of September 11, 2001 in order to assist with the
search and rescue effort at Ground Zero. The officer sued for
defamation after a newspaper published articles alleging that he
had misrepresented himself to the New York authorities and possibly
interfered with the rescue operation. As noted by the CBA this defense of
responsible journalism applies if:
the news was urgent, serious, and of
the journalist used reliable sources,
the journalist tried to get and
report the other side of the story.
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A recent decision of the Ontario Court
of Appeal, D'Onofrio v. Advantage
Car & Truck Rentals Ltd., 2017 ONCA 5,
asks whether a party who takes "no
position" on a summary judgment
motion is later bound by the motion
judge's findings in the ongoing
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