Originally published in Blakes Bulletin on Litiagetion,
Toronto Star Wins Libel Appeal; Ontario Court Of Appeal Decision
Is First Canadian Case To Apply Responsible Journalism Defence
On November 28, 2008, the Ontario Court of Appeal overturned a
jury verdict against the Toronto Star that had awarded
C$1.475-million in damages to a northern Ontario businessman and
his private corporation for libel.
Peter Grant had sued the Toronto Star over an article
written by investigative journalist Bill Schiller in June 2001,
which detailed the concerns of Grant's neighbours regarding his
proposed private golf course development on Crown land by a lake in
northern Ontario. The article also discussed Mr. Grant's
connections to the provincial Progressive Conservative Party and
then premier Mike Harris.
The Court of Appeal agreed with the appellants that the trial
judge had erred in his analysis of the new defence of "public
interest responsible journalism." That defence, the court
affirmed, is intended to favour publication of articles on matters
of public interest that are responsibly researched and published.
The court held that it was incumbent on the trial judge to consider
the defence with this in mind, something he had failed to do. This
is the first case in Canada to consider the application of this new
defence, developed over the past decade in England.
On the facts of the case, the Court of Appeal was critical of
the judge for taking a narrow view of "public interest,"
as he had limited it to those who lived in the area. This was
wrong, as the article dealt with "the private acquisition of
Crown lands by a person who had made large political contributions
to the governing political party, as well as with cottagers'
environmental concerns." The trial judge also overlooked many
relevant facts showing that the journalist acted in a responsible
and fair manner in preparing the story, Grant's refusal to
respond to Schiller's questions and the journalist's
explanation of why some things were not included in the story.
The court also concluded that the trial judge erred in
instructing the jury on a number of points. Most significantly, the
judge incorrectly told the jury that the defence of fair comment
turned on whether a "fair-minded" person could believe
the comment. The judge's charge misled the jury as the correct
test is broader – whether a person could honestly hold
the opinion. on the facts proved. Although he stated it correctly
at the outset, the trial judge went on to import a "fair
mindedness" test, which he repeated several times.
In addition, the court held that a decades-old standard jury
charge relied on by the trial judge regarding the issue of the
meaning of allegedly defamatory words was wrong and misleading. As
well, the trial judge made other errors, such as not making the
test for malice clear, and failing to fairly summarize important
The Court of Appeal set aside the jury's verdict and ordered
a new trial, as it concluded that the meaning of the impugned
article must be decided by a jury before the court can consider the
applicability of the responsible journalism defence.
The appellants were represented by a team from Blakes led by
Paul Schabas and including Simon Heeney and Erin Hoult. Blakes
Media Group has the leading lawyers in the field. It regularly acts
for newspapers, broadcasters and publishers on defamation and
As Online Behavioural Advertising (OBA) becomes a business model, the Report of Findings of the Office of the Privacy Commissioner of Canada (OPC) on Bell's Relevant Ads Program (RAP) constitutes a milestone.