Young v. Toronto Star Newspapers et al. [Indexed as: Young v. Toronto Star Newspapers Ltd.]

77 O.R. (3d) 680

[2005] O.J. No. 4216

Docket: C40543

Court of Appeal for Ontario,

Simmons, Gillese and LaForme JJ.A.

October 4, 2005

Torts -- Defamation -- Damages -- Trial judge awarding general damages of $90,000 -- Trial judge not erring in concluding that serious nature of defamation involving plaintiff's professional reputation justified order for substantial damages in order to clearly demonstrate vindication of plaintiff's reputation to community -- Trial judge finding that malice was not established -- Trial judge not erring in declining to award punitive or aggravated damages.

Torts -- Defamation -- Defamatory meaning -- Trial judge in criminal proceedings dismissing defence motion for mistrial after specifically finding that defence failed to establish that improper pressure was brought to bear on expert witness to change his evidence -- Defence counsel given permission to re- open to jury -- Defence counsel referring to alleged pressure on witness in his opening statement -- Judge declaring mistrial -- Newspaper article reporting allegations of defence counsel without making it clear that they were statements by advocate and not evidence -- Article giving impression that mistrial had been declared because of improper pressure on witness -- Trial judge in defamation action not erring in finding that impugned statements in article had defamatory meaning.

Torts -- Defamation -- Defences -- Absolute privilege -- Fair and accurate report of public court proceedings -- Trial judge in criminal proceedings dismissing defence motion for mistrial after specifically finding that defence failed to establish that improper pressure was brought to bear on expert witness to change his evidence -- Defence counsel given permission to re- open to jury -- Defence counsel referring to alleged pressure on witness in his opening statement -- Judge declaring mistrial -- Newspaper article reporting allegations of defence counsel without making it clear that they were statements by advocate and not evidence -- Article giving impression that mistrial had been declared because of improper pressure on witness -- Article defamatory -- Defence of absolute privilege in s. 4(1) of Libel and Slander Act not available to newspaper -- Libel and Slander Act, R.S.O. 1990, c. L.12, s. 4(1). [page 681]

At the time of the events in issue, the plaintiff was the Assistant Deputy Minister, Public Safety Division, Ministry of the Solicitor General, in charge of the Centre of Forensic Sciences (the "CFS"). A CFS scientist, P, prepared a report on blood splatter evidence at a murder scene which was favourable to the defence. P ultimately modified his opinion in a way that made it less favourable to the defence. Defence counsel in the criminal proceedings, B, applied for a stay of proceedings, alleging that improper pressure had been brought to bear on P to compel him to change his opinion and that that conduct amounted to an abuse of process. The presiding judge rejected the contention that there had been any improper interference with P's evidence and dismissed the request for a stay. He specifically found that the plaintiff had not engaged in any improper conduct. Because the change in opinion pre-dated B's opening address to the jury but was not disclosed prior to the address, the presiding judge found a breach of the accused's Canadian Charter of Rights and Freedoms rights, and permitted the defence to re-open to the jury, but solely in relation to the new evidence. In his re-opening, in addition to explaining that P's opinion had unexpectedly changed, B reiterated the defence position on the stay application that improper pressure had been brought to bear on P to compel him to change his opinion. Crown counsel requested a mistrial and B joined in that request, for different reasons. In the absence of the jury, the presiding judge granted the request for a mistrial.

The defendant T, who did not attend the proceedings personally, prepared an article for publication in the defendant newspaper based on information she received from B. T understood that the reasons for declaring the mistrial and the evidence and submissions from the motions were subject to a publication ban and that all she could report on was the jury address and the fact that a mistrial had been declared. She did not attempt to contact Crown counsel or anyone else who had been in the courtroom. The article stated that the trial had "ended in a mistrial amid serious new questions about the conduct of Ontario's Centre of Forensic Sciences" and that "The jury was told before the case ended yesterday that a forensic scientist was pressured to change key evidence after the director and assistant deputy minister in charge of the centre met with him in a bid to shield it from further embarrassment." After the publication ban ended, T wrote another article headlined "Judge backs forensic officials" and subheadlined "Accusations of 'political interference' rejected". The plaintiff brought an action for damages for defamation. The trial judge found that the first article was defamatory but the second article was not. He found that the defence of absolute privilege for a "fair and accurate report without comment in a newspaper or in a broadcast of proceedings publicly heard before a court of justice" in s. 4(1) of the Libel and Slander Act was not available to the defendants. The defendants appealed. The trial judge awarded the plaintiff general damages in the amount of $90,000. The plaintiff cross- appealed, requesting that the general damages be increased and that aggravated and punitive damages be awarded.

Held, the appeal and cross-appeal should be dismissed.

Per Simmons J.A. (Gillese J.A. concurring): The trial judge did not err in finding that the first article was defamatory. It was open to the trial judge to conclude that the first article was capable of bearing the defamatory meanings he found because the article was structured in such a way as to leave the reader with the impression that B's statements to the jury were worthy of belief. Further, the article was capable of conveying the meaning that B's assertions were facts.

The trial judge found that a proper interpretation of s. 4(1) of the Act requires that reports must be fair and accurate in the context of the whole of the proceeding, including the portions covered by the publication ban. The [page 682] issue of whether s. 4(1) of the Act requires that reports must be fair and accurate in the context of any portion of proceedings that are subject to a publication ban did not arise on the facts of this case. The trial judge erred in holding that, in order to qualify for the absolute privilege afforded by s. 4(1), the defendants were required to take those proceedings into consideration. Examined solely in the context of the proceedings that occurred in the presence of the jury, the trial judge's conclusion that the first article did not meet the requirements of s. 4(1) of the Act was correct. The fact that the article reported B's comments in a manner that left the impression that his statements were facts worthy of belief, without clarifying that they were part of an open ing address, was both unfair and inaccurate. The fact that the article left the reader with the impression that the plaintiff acted improperly and that his actions were the cause or a principal cause of the mistrial was sufficient to take the article out of the protection of s. 4(1) of the Act.

Appellate courts are not to interfere lightly with damage awards in defamation actions. The trial judge did not err either in the quantum of general damages awarded or in declining to award punitive or aggravated damages. A key factor driving the general damage award was the fact that the defamatory meanings related to the plaintiff's professional calling and integrity. The trial judge did not err in concluding that the serious nature of the defamatory meanings justified an order for substantial damages in order to clearly demonstrate to the community the vindication of the plaintiff's reputation. At the same time, the trial judge found that malice was not established. That conclusion was open to him.

Per LaForme J.A. (concurring in the result): The trial judge erred in his interpretation of s. 4(1) of the Libel and Slander Act for three reasons. First, his interpretation was inconsistent with the important purposes served by partial publication bans. Second, a failure to abide by a court-ordered ban can have dire consequences, such as prosecution under the Criminal Code, R.S.C. 1985, c. C-46 or contempt of court proceedings. Third, the trial judge's suggestion that the story should be spun or slanted to take into account proceedings subject to a publication ban was inconsistent with the wording of s. 4(1), which requires a report to be without comment.

APPEAL AND CROSS-APPEAL from the judgment of Rouleau J. (2003), 2003 64296 (ON SC), 66 O.R. (3d) 170, [2003] O.J. No. 3100 (S.C.J.) and [2003] O.J. No. 5092, 20 C.C.L.T. (3d) 304 (S.C.J.) in an action for damages for defamation.

Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, 24 O.R. (3d) 865n, 126 D.L.R. (4th) 129, 184 N.R. 1, 30 C.R.R. (2d) 189, 25 C.C.L.T. (2d) 89; Leenen v. Canadian Broadcasting Corp. (2001), 54 O.R. (3d) 612, [2001] O.J. No. 2229, 6 C.C.L.T. (3d) 97 (C.A.), distd Other cases referred to Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 20 O.R. (3d) 816n, 120 D.L.R. (4th) 12, 175 N.R. 1, 25 C.R.R. (2d) 1, 94 C.C.C. (3d) 289, 34 C.R. (4th) 269; Dennison v. Sanderson, 1946 71 (ON CA), [1946] O.R. 601, [1946] 4 D.L.R. 314 (C.A.); Hansen v. Nugget Publishers Ltd., 1927 444 (ON CA), [1927] O.J. No. 110, 61 O.L.R. 239, [1927] 4 D.L.R. 791 (C.A.); Hodgson v. Canadian Newspapers Co. (2000), 2000 14715 (ON CA), 49 O.R. (3d) 161, [2000] O.J. No. 2293, 189 D.L.R. (4th) 241 (C.A.) [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 465]; Littleton v. Hamilton (1974), 1974 438 (ON CA), 4 O.R. (2d) 283, 47 D.L.R. (3d) 663 (C.A.); MacDougall v. Knight, [1889] 14 A.C. 194, 14 App. Cas. 194, 58 L.J.Q.B. 537, 60 L.T. 762, 53 J.P. 691 (H.L.); McIntyre Estate v. Ontario (Attorney General) (2002), 2002 45046 (ON CA), 61 O.R. (3d) 257, [2002] O.J. No. 3417, 218 D.L.R. (4th) 193, 23 C.P.C. (5th) 59 (C.A.); Myers v. Canadian Broadcasting Corp. (2001), 2001 4874 (ON CA), 54 O.R. (3d) 626, [2001] O.J . No. 2228, 6 C.C.L.T. (3d) 112 (C.A.) (sub nom. Myers v. Sociétéé Radio-Canada); Pacheco (c.o.b. Pacheco Cleaners) v. DeRango, [2001] O.J. No. 3500 (S.C.J.); R. v. Brown, 1998 14946 (ON SC), [1998] O.J. No. 482, 54 O.T.C. 167, 126 C.C.C. (3d) 187, 49 C.R.R. (2d) 343, 45 W.C.B. (2d) 411, 37 W.C.B. (2d) 341 (Gen. Div.); [page 683] R. v. Regan, 1997 11496 (NS SC), [1997] N.S.J. No. 427, 174 N.S.R. (2d) 28, 159 D.L.R. (4th) 350, 532 A.P.R. 28, 124 C.C.C. (3d) 77 (S.C.); Walker v. CFTO Ltd. (1987), 1987 126 (ON CA), 59 O.R. (2d) 104, [1987] O.J. No. 236, 37 D.L.R. (4th) 224, 39 C.C.L.T. 121 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms Criminal Code, R.S.C. 1985, c. C-46, s. 648(1) Libel and Slander Act, R.S.O. 1990, c. L.12, ss. 4, 10 Authorities referred to Brown, R.E., Law of Defamation in Canada, 2nd ed., looseleaf (Scarborough: Carswell, 1999) Ontario, Parliamentary Inquiry, Report of the Commission on Proceedings Involving Guy Paul Morin, vols. 1, 2 (Toronto: Queen's Printer, 1998)

Paul B. Schabas and Tony S.K. Wong, for appellants, respondents by way of cross-appeal. Michael A. Penny and Tycho Manson, for intervenors Thomson Canada Ltd., The Globe and Mail, Kirk Makin, Thunder Bay Chronicle Journal and Phil Andrews. Robert Rueter, for respondent, appellant by way of cross- appeal.

SIMMONS J.A. (GILLESE J.A. concurring):--

I. Overview

[1] The appellants appeal from a judgment of Rouleau J. dated July 29, 2003, awarding Dr. Young general damages for libel in the amount of $90,000. In addition, they request leave to appeal the costs awarded to Dr. Young at trial on a partial indemnity scale in the amount of $210,985.76. Dr. Young cross- appeals, requesting that the general damages be increased and that aggravated and punitive damages be awarded. He also seeks leave to appeal the costs awarded to him, and requests that they be increased.

[2] Dr. Young's claim arises from two articles written by Tracey Tyler and published in The Toronto Star concerning events that occurred on October 19, 1998 at the Jamie Perlett murder trial in Thunder Bay.

[3] The first article was published on October 20, 1998 under the headline, "Murder trial is cut off: Mistrial declared over forensic controversy in double slaying". This article included references to Dr. James G. Young who was at the time Ontario's Chief Coroner and the Assistant Deputy Minister, Public Safety Division, Ministry of the Solicitor General and Correctional Services. [page 684] As Assistant Deputy Minister, Dr. Young was in charge of the Centre of Forensic Sciences (the "CFS").

[4] On March 11, 1999, The Star published a second article written by Ms. Tyler under the headline, "Judge backs forensic officials: Accusations of 'political interference' rejected". The second article was a follow-up to the first article and reported on a ruling made on October 19, 1998 by Platana J. at the murder trial (the "presiding judge") which the appellants understood remained subject to a publication ban until the Perlett jury retired to consider its verdict. In his October 19, 1998 ruling, the presiding judge rejected a defence application for a stay of proceedings that was based on allegations against the CFS of corruption and suborning a witness.

[5] In his reasons relating to Dr. Young's libel claim, Rouleau J. (the "trial judge") found that the October 20, 1998 article was defamatory and that none of the defences of absolute privilege, qualified privilege or justification applied. In particular, the trial judge determined that in order to benefit from the defence of absolute privilege codified in s. 4(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12 (the "Act") when a publication ban (or partial publication ban) is in place, a journalist reporting on court proceedings must fairly and accurately report on the day's proceedings, taking into account those portions subject to the publication ban. In this case, a fair and accurate report of the October 19, 1998 proceedings included taking into account the presiding judge's reasons for rejecting the stay application.

[6] Further, although he found that it was not defamatory, the trial judge concluded that the March 11, 1999 article did not provide a reasonable statement of explanation or contradiction as contemplated by s. 4(1) of the Act.

[7] The main issues on this appeal and cross-appeal are: (1) whether the trial judge erred in finding that the October 20, 1998 article was defamatory; (2) whether the trial judge erred both in his interpretation of s. 4(1) of the Act and in failing to find that the defence of absolute privilege codified in s. 4(1) applies; (3) whether the trial judge erred in his assessment of damages; and (4) whether the trial judge erred in fixing costs.

[8] For the reasons that follow, I would dismiss both the appeal and cross-appeal.

II. Background

(a) The events at the Perlett murder trial

[9] In order to appreciate the issues on appeal, it is essential to have a clear understanding of the events that occurred at the [page 685] Jamie Perlett murder trial, which commenced in early October 1998 in Thunder Bay.

[10] Jamie Perlett was charged with the first degree murder of his parents. On October 19, 1998, the presiding judge declared a mistrial. The mistrial was the culmination of a series of events triggered by a change in the evidence of an expert witness, Michael Philp, from the CFS in Toronto.

[11] As part of the murder investigation, Mr. Philp had prepared a report relating to blood spatter evidence at the murder scene. In accordance with CFS policy, Mr. Kelder, a second CFS scientist, conducted a scientific review of Mr. Philp's report. After preparing his report, Mr. Kelder confirmed that he could come to the same conclusions as Mr. Philp. Mr. Philp opined that the assailant's arm caused a void in the blood spatter pattern found on a wall at the Perlett residence. Because no bloodstains were found on the clothing Jamie Perlett was wearing at the time of the shooting, this opinion was favourable to the defence.

[12] Sometime following the preliminary inquiry, Mr. Philp went on a medical leave of absence and the Perlett file was reassigned to Jonathan Newman, another scientist at the CFS. Mr. Newman reviewed the transcripts of the preliminary inquiry and the photographs of the scene and prepared his own report about the blood spatter evidence. He described the void as an "apparent void" and offered additional explanations for the bloodstain pattern and the apparent void. Although Mr. Philp had returned to work prior to the completion of Mr. Newman's report, Mr. Newman did not discuss his own conclusions with Mr. Philp.

[13] Mr. Newman's report was forwarded to both the Crown and the defence in mid-August 1998. On September 28, 1998, Daniel Brodsky, defence counsel for Mr. Perlett, contacted Mr. Philp and informed him that Mr. Newman's opinion differed from Mr. Philp's. Mr. Brodsky also told Mr. Philp that the defence would be calling Mr. Philp at the Perlett murder trial to contradict Mr. Newman's evidence. Subsequently, on October 5, 1998, Mr. Brodsky told the jury in his opening address that Mr. Philp would provide blood spatter evidence supporting the defence.

[14] However, unbeknownst to Crown counsel or the defence, Mr. Philp approached Dr. Prime, the director of the CFS, after speaking with Mr. Brodsky on the telephone. Mr. Philp was told to arrange a meeting with Mr. Newman. Ultimately, a meeting of CFS scientists was held on September 30, 1998 to review the conflicting reports and to determine if a scientific consensus could be reached concerning the interpretation of the bloodstain patterns. Present at the September 30, 1998 meeting were Mr. Philp, Mr. Kelder, Mr. Newman, Mrs. Newall (head of the biology section at [page 686] the CFS), Ms. Hageman (who had carried out a scientific review of Mr. Newman's report) and Dr. Prime. As a result of the meeting, Mr. Philp modified and expanded his opinion, and on October 7, 1998, he delivered an updated report.

[15] On October 7, 1998, Crown counsel learned that Mr. Philp would be issuing a new report and informed defence counsel immediately. Mr. Brodsky then arranged a meeting with Messrs. Philp and Newman; however, that meeting was cancelled after Mrs. Newall learned that defence counsel wished to meet the various scientists on what she described as a "four on one basis".

[16] When she learned of the proposed meeting format, Mrs. Newall consulted Dr. Prime; Dr. Prime, in turn, consulted Dr. Young. After consulting counsel, Dr. Young directed that the meeting with Mr. Brodsky be cancelled and that any questions be put in writing. However, despite this direction, Mr. Philp met with defence counsel because he had promised to do so.

[17] After learning of the circumstances in which the change in opinion occurred, defence counsel applied for a stay of proceedings; in the alternative, for a mistrial; or, in the further alternative, for the right to re-open to the jury. In essence, defence counsel alleged that improper pressure had been brought to bear on Mr. Philp to compel him to change his opinion and that that conduct amounted to an abuse of process. At a minimum, defence counsel alleged irreparable prejudice arising from delayed disclosure of the changed opinion.

[18] In order to dispose of the defence application, the presiding judge conducted a voir dire and heard oral evidence. Mr. Philp testified that although he used the term "void" in his evidence at the preliminary inquiry, he more accurately should have said "semi or apparent void". Further, he confirmed that his testimony at the preliminary inquiry was his explanation of what was the most likely conclusion concerning the bloodstain pattern, but not the only explanation.

[19] Mr. Philp explained that after returning to the CFS following his sick leave, he became aware of recommendations in Ontario's Report of the Commission on Proceedings Involving Guy Paul Morin, vols. 1, 2 (Toronto: Queen's Printer, 1998) (the "Kaufman Report"). The Kaufman Report made it clear that he had an obligation to come forward if his testimony at the preliminary inquiry might be misinterpreted. He stated that there was considerable discussion at the September 30, 1998 meeting of the weight that should be attached to each of the possible causes of the bloodstain pattern. After some initial reluctance, he eventually agreed that equal weight should be attached to each of the possible causes. [page 687]

[20] On October 19, 1998, in the absence of the jury, the presiding judge rejected the defence contention that there had been any improper interference with Mr. Philp's evidence and dismissed the defence request for a stay of proceedings. He said:

On the facts before me, I am satisfied that the actions of the , while a very clear example of poor procedure to deal with the issue of the two opinions, while an even poorer example of timing to the Crown and defence as to their intended course of action, and a poor exercise of internal and external communication, do not extend to the aspect of interference so as to lead to a determination of deliberately slanted evidence to be offered in this case. ...

Despite defence argument to have me find that Mr. Philp's change of opinion was not a true change but a forced change, the evidence, in my view, does not establish that. Mr. Philp's evidence was clear. He was convinced, on the basis of his understanding of the Kaufman Report and the opinions of the others at the meeting of September 30th that his report and the evidence at the preliminary hearing needed to be modified. Furthermore, his evidence in this motion is clear that he was not forced in any way to modify his scientific opinion. He could have held fast, and the result would have been two scientists from the Centre testifying differently, not a desired result from the point of view of the administration of the Centre, but one which could have been scientifically appropriate. Mr. Philp was adamant in his evidence before me that he would not have signed the letter of October 7th, if he did not agree with the scientific conclusions represented therein.

[21] Further, the presiding judge made a specific finding that Dr. Young had not engaged in any improper conduct:

I further find that although the involvement of the director of the Centre and the [A]ssistant Deputy Minister of the Ministry of the Solicitor General was unique and unusual, their involvement was directed towards administrative matters only, and was not directed towards any attempt to ensure that the evidence would be slanted one way or the other. It was, in my view, an attempt by them to ensure that the Centre could not later come under criticism for failing to have complied with the recommendations of the Kaufman Report. Their concern, I am satisfied, was not to change the evidence to suit the Crown's case, but to ensure that the evidence to be given in court by scientists employed by that Centre was scientifically sound.

[22] However, because the change in opinion pre-dated defence counsel's opening address to the jury but was not disclosed prior to the address, the presiding judge found a breach of Mr. Perlett's Canadian Charter of Rights and Freedoms rights. While rejecting the defence request for a mistrial, he permitted the defence to re-open to the jury, but solely in relation to the new evidence. In doing so he said:

I am satisfied that if the information had been known to the defence, that counsel's opening to the jury may very well have been different. I will explain to the jury that, although it is unusual procedure, that I am going to permit the defence to re-open to them now, solely on the issue of the newly [page 688] determined evidence. I will not comment myself on the specific factual situation, but will leave that to Mr. Brodsky.

(Emphasis added)

[23] After delivering this ruling in the absence of the jury, the presiding judge called in the jury, provided them with some general instructions about the Crown's duty of disclosure, and told the jury that, in this case, some of the Crown's information unexpectedly "became different" following counsel's opening addresses and that Mr. Brodsky's opening "may very well have been different" if he had had this information previously. The presiding judge then advised the jury that he was going to take "a rather unusual step" and permit Mr. Brodsky "to address [them] again, to re-open", and to "outline for [them] more specifically what the area of information was".

[24] The content of Mr. Brodsky's re-opening is central to the issues on appeal because it formed the basis of the October 20, 1998 article. In addition to explaining that Mr. Philp's opinion had unexpectedly changed, Mr. Brodsky reiterated the defence position on the stay application that improper pressure had been brought to bear on Mr. Philp to compel him to change his opinion. Mr. Brodsky's specific comments included the following:

[A]s His Honour has just told you, something very distressing has been exposed, and His Honour has permitted me to explain it to you.

When I last addressed you, I indicated that you would be hearing from a fellow named Mr. Michael Philp, and you will be hearing from him, and I was confident in telling you what he would say because Mr. Philp gave us a first opinion by way of ordinary disclosure in a criminal case. ...

And as I indicated to you in my opening there was also a contrary view and that both of the experts from the Centre of Forensic Sciences would be coming to testify. What happened was that Mr. Philp ... became ill. ... [W]e weren't sure whether he would return. ...

So we knew that there was an opinion, the second opinion from Mr. Newman, that there really was no void on the wall, and if there was a void on the wall it was a partial void. But for inquiry by myself, that would be the position that we went to trial with ... And, but for the questions by the defence, we wouldn't know that at that particular time Mr. Philp still viewed his work as correct and accurate ... so we had, as we hope to show you in evidence ... in effect, the suppression of the first opinion ... There was no movement independent by the Centre to resolve the dispute between the two scientists because as long as [they] didn't disclose that Philp was back and okay they wouldn't have to disclose because Newman's evidence would go forward as the position of the Centre of Forensic Sciences. What caused the change is a request for the defence to have Mr. Philp testify, and I told you I would have him testify, and that caused a meeting to be set up on September 30th, 1998, before I opened to you. And as you will hear more about ... at the end of that meeting a compromise was reached. Mr. Philp changed his opinion. And that was what His Honour is talking to you about. [page 689]

The disclosure of the change in opinion ... was made to the Crown ... after the trial commenced ... You will hear in [Mr. Philp's] evidence that [there] was a secret meeting and against the direct order of the Centre of Forensic Sciences Director, Dr. Prime, and indeed the Assistant Deputy Minister, Dr. Young ...

And it will be my sad responsibility to show you that the transparently changeable opinions from the scientists in this case were the product of political interference in the independent opinions of Centre of Forensic scientists for the purpose of avoiding further public embarrassment, the Centre having just been admonished by Justice Kaufman for contributing to the wrongful conviction of Guy Paul Morin. Imagine the pressure brought to bear on Michael Philp, a man who was recovering from a mental illness, pressure put, as you will see, by management and others all the way up to the Deputy Minister, Assistant Deputy Minister, for him to change his opinion ... This type of damage control by the Centre of Forensic Sciences is corruption.

[25] Following Mr. Brodsky's address, the presiding judge said the following:

Now, having heard that, ladies and gentlemen, I permitted Mr. Brodsky to explain to you in detail what the problem was. I want to remind you what I told you at the beginning of Crown and the initial defence opening, what counsel say to you in their opening address, and this is considered to be an opening address, is not evidence, and it will only become evidence if you indeed so find it. So you must approach these comments of Mr. Brodsky in the same light that I instructed you to approach Mr. Mitchell's opening to you and Mr. Brodsky when he originally opened to you.

[26] However, as soon as the presiding judge completed these remarks, Crown counsel asked that the jury be excused and requested a mistrial. According to the Crown, in the face of the presiding judge's ruling on the stay application, the slant Mr. Brodsky placed on the facts was both improper and inflammatory. While Mr. Brodsky did not agree with the Crown's characterization of his address, he too requested a mistrial based on his original assertion that a mistrial was necessary to cure the prejudice arising from Mr. Philp's changed opinion.

[27] In the absence of the jury, the presiding judge granted what was, at that point, essentially a joint request for a mistrial. He indicated that it was unnecessary that he comment on the Crown's characterization of Mr. Brodsky's re-opening; rather, in his view, Mr. Brodsky "went significantly beyond" the scope of his ruling by going into more detail than in his original opening about the events that had occurred on the day of the murders.

[28] The presiding judge stated that there were two factors that affected his decision to grant a mistrial. The first was the fact that this was now the second application for a mistrial, and, although for different reasons, both counsel were now requesting a mistrial. Second, the jury had already been exposed to the unusual procedure of listening to two opening statements delivered by the [page 690] defence. In these circumstances, the additional explanations that would now have to be given to the jury created a risk of confusing them.

[29] The presiding judge then called in the jury, advised them that he had decided to declare a mistrial, and discharged them. After the jury was discharged, the presiding judge confirmed that the trial had "commenced" and that the pre-trial rulings already made would remain in effect. In addition, he indicated that the publication ban on proceedings held in the absence of the jury would continue to apply subject to the exception that he had declared a mistrial. The particulars of the presiding judge's discussion with counsel concerning the publication ban are as follows:

THE COURT: Well, let me first indicate to counsel that it's my view that, having declared a mistrial before this jury, this trial has, for other purposes, already commenced before me with the dealing of the pretrial motions. The ordering of a mistrial at this point of time can simply mean we bring in a new jury. We do not have to, in my view, repeat all of the pretrial work that was done by way of motions.

THE CROWN: The Crown is in a position to concur with that, Your Honour. I would ask that all proceedings which took place in the absence of the jury, as well as all rulings, heretofore, not exempted from the publication ban also continue.

MR. BRODSKY: That would be my anticipation. Anything in the public domain before the jury is fair game. But your Honour's rulings throughout that matters outside of earshot of the jury are subject to the publication ban. We agree with the Crown, that ruling should be continued.

THE COURT: Obviously that would have to exclude the fact that I have ordered a mistrial in this case.

[30] Following this exchange, Crown counsel requested that the presiding judge clarify his ruling relating to the mistrial and confirm that it was defence misconduct that precipitated the mistrial. The presiding judge declined to do so. Rather, he said, "what took place during the re-opening ... clearly tipped the balance ... with respect to whether a mistrial should be ordered or not".

(b) The October 20, 1998 article

[31] Tracey Tyler did not attend the portion of the Perlett trial preceding the October 20, 1998 article, but rather prepared the article based on information she received from Mr. Brodsky.

[32] On the afternoon of October 19, 1998, Mr. Brodsky advised Ms. Tyler that the presiding judge had declared a mistrial in the Perlett trial. He told her that the mistrial was declared because [page 691] he had gone "too far" in his jury address. In addition, he faxed her a copy of his notes for his jury address and told her that he did not deviate from them.

[33] Ms. Tyler understood from speaking to Mr. Brodsky that the reasons for declaring the mistrial and the evidence and submissions from the motions were subject to a publication ban and that all she could report on was the jury address and the fact that a mistrial had been declared. She wrote the article and submitted it for publication on the evening of October 19, 1998 for publication the next day.

[34] Despite a guideline in The Toronto Star policy manual providing that "[a] reporter should attend trials in person whenever possible" and "[i]f it is not possible to attend a trial in person, counsel for BOTH sides in the case must be contacted prior to publication", Ms. Tyler did not attempt to contact Crown counsel or anyone else who had been in the courtroom. She indicated that, in the circumstances as she understood them, she did not feel that the Crown could add anything. She also testified that nothing that the Crown could have told her, including the presiding judge's rulings, would have led her to change the October 20, 1998 article.

[35] Because of its significance to the issues on appeal, I will set out the full text of the October 20, 1998 article. The excerpts from the article on which Dr. Young relied at trial as being defamatory are underlined:

Toronto Star, October 20, 1998 -- p. A9

Murder trial is cut off

Mistrial declared over forensic controversy in double slaying

By Tracey Tyler

Legal Affairs Reporter

The prosecution of a man charged with first-degree murder in the bloody shooting death of his parents has ended in a mistrial amid serious new questions about the conduct of Ontario's Centre of Forensic Sciences.

The jury was told before the case ended yesterday that a forensic scientist was pressured to change key evidence after the director and assistant deputy minister in charge of the centre met with him in a bid to shield it from further embarrassment.

The scientist, Michael Philp, who works out of Toronto, was prepared to give an opinion favorable to the defence about blood spattered at the murder scene, but changed his conclusions after a Sept. 30 meeting with the senior officials, the jury was told by defence lawyer Dan Brodsky.

Had Philp not revised his opinion, the testimony he was about to give would have conflicted with the conclusions reached by another scientist from the centre, Jonathan Newman, who would be testifying for the crown, the jury heard. [page 692]

Brodsky told jurors yesterday the "transparently changeable" opinion was the product of political interference aimed at avoiding further embarrassment for the centre, which was admonished by retired Quebec judge Fred Kaufman for contributing to the wrongful conviction of Guy Paul Morin.

The centre, located in Toronto, "will not allow its scientists to embarrass the organization in public. Nothing more, nothing less," he said yesterday. "This type of damage control by the (centre) is corruption."

Brodsky's client, Jamie Perlett, 21, is charged with two counts of first-degree murder in the March 22, 1996, deaths of his parents, James Perlett 50, and Carole Ann Perlett, 47, in their Fort Frances home.

The mistrial was declared by Mr. Justice Terry Platana after Brodsky addressed the jury in the Ontario Court, general division in Thunder Bay. In his comments, he said the trial judge had given permission to explain some "very distressing" events that came to light after both the defence and prosecution gave their opening statements in the trial on Oct. 5.

Brodsky had told jurors in his opening address that Philp would be providing an expert opinion about blood spattered at the scene that supported the defence position that Perlett, who got shot himself, was not the murderer but had attempted to stop a man in dark clothing who fired a gun into the home.

Jury was sent home after defence learned of the scientist's new opinion.

However, Brodsky said yesterday that, after addressing the jury, the defence learned from prosecutor Dan Mitchell that Philp had reached a new opinion. The jury was sent home in the wake of the new development.

Legal arguments took place over three days last week but cannot be reported because they were heard in the absence of the jury.

Brodsky told them yesterday the defence immediately tried to set up a meeting with forensic sciences centre officials after learning about Philp's changed opinion, but a decision was made by the assistant deputy minister, Ontario Chief Coroner James Young, to refuse.

The defence nevertheless did meet with Philp in secret but it took place against the direct orders of Young and centre director Ray Prime, he added.

Philp testified for the crown at the preliminary hearing in the case but later went on a sick leave relating to depression and the evidence was examined by the second scientist, who reached a different conclusion, the jury was told.

Brodsky said defence was notified the second scientist would be testifying at the trial because Philp was on leave.

However, when the defence phoned the centre, Philp had returned to work and was still expecting to testify because nobody had told him anything different, said Brodsky, who asked the scientist if he would then testify for the defence.

"Imagine the pressure brought to bear on Michael Philp, a man who was recovering from a mental illness, by management and others all the way up to the (assistant deputy minister) for him to change his opinion," the lawyer remarked to jurors.

Young could not be reached for comment last night. [page 693]

After completing his address, the jury retired while the judge was addressed in their absence. The judge's reasons for declaring a mistrial cannot be reported.

(c) Government reaction to the October 20, 1998 article

[36] On October 20, 1998, Timothy Millard, the Deputy Minister to whom Dr. Young reported, received telephone calls from the Minister's office and from the Premier's office advising him that the issues raised in the article needed to be dealt with immediately. From the article, Mr. Millard determined that two issues had to be addressed: first, whether Dr. Young's actions had caused a mistrial; and, second, whether Dr. Young had interfered with the evidence to be given by Mr. Philp. Within one or two days, Mr. Millard was satisfied that Dr. Young had not caused the mistrial. Within a few more days, he was satisfied that Dr. Young had not influenced the evidence to be given at the Perlett trial.

(d) The libel notice and statement of claim

[37] On November 9, 1998, Dr. Young's lawyer sent a libel notice to the appellants claiming that the underlined words in the October 20, 1998 article were defamatory of Dr. Young and that "the article complained of ... was not a fair and accurate report without comment of proceedings publicly heard before a court of justice". In addition, the notice asserted that "[t]he article in question did not report the evidence before the court and findings of the Honourable Mr. Justice T.A. Platana which explain and contradict the defamatory statements and allegations complained of herein".

[38] The notice requested "publication of a statement of explanation and contradiction in respect of the defamatory statements and allegations ... fairly and accurately reporting the evidence adduced before the court, and the findings and conclusion of the Honourable Mr. Justice T.A. Platana, bearing upon, explaining, and contradicting the defamatory statements and allegations".

[39] On November 12, 1998, counsel for The Toronto Star responded to the libel notice. He indicated that he understood that the presiding judge had advised reporters present in the courtroom that they could only report on what the jurors heard. The Star's counsel also advised that information relating to the case not heard by the jury would not be published until the trial was completed. While indicating that The Star's position was that the article was a fair and accurate reflection of what took place in the presence of the jury, he wrote that, "[o]nce the trial has ended the Star ... intends to publish a reasonable statement [page 694] of contradiction on behalf of your clients". However, he added that, at the appropriate time, The Star would seek to interview Dr. Young, and representatives of the CFS, and that it would also "seek the view of the minister".

[40] On February 5, 1999, Dr. Young issued his statement of claim.

(e) The March 11, 1999 article

[41] The new Perlett jury retired to consider its verdict on February 15, 1999, terminating the publication ban.

[42] On March 9, 1999, Ms. Tyler contacted Dr. Young and stated the following:

I just wanted to give you a call because, now that the Perlett matter has concluded, I'm actually in a position to write a story about what was said during the motions and I've gone through the transcripts and I just wanted to give you an opportunity, if there was anything you wanted to say or add, to do that.

[43] Dr. Young responded, "I think, probably, it's best that I don't comment at this point".

[44] In their statement of defence delivered on March 11, 1999, the appellants describe Ms. Tyler's call as a request to provide "a reasonable statement of explanation or contradiction" and allege that Dr. Young refused to do so.

[45] On March 11, 1999, The Star published another article written by Ms. Tyler reporting on the presiding judge's reasons for dismissing the defence's stay application on October 19, 1998.

[46] The full text of the March 11, 1999 article is set out below. The excerpts from the article on which Dr. Young relied at trial as being defamatory are underlined:

Toronto Star, March 11, 1999 -- p. A9

Judge backs forensic officials

Accusations of 'political interference' rejected

By Tracey Tyler

Legal Affairs Reporter

Top forensic officials accused of "political interference" in a Thunder Bay murder trial were just trying to ensure that blood-stain evidence presented during the case was scientifically sound, a judge has ruled.

Their involvement was "unusual" and "unique" but not an attempt to "change the evidence," Mr. Justice Terry Platana concluded.

The role of Centre of Forensic Sciences director Ray Prime and assistant deputy solicitor-general James Young came into question last September when Jamie Perlett, 22, went on trial in Thunder Bay for killing his parents, Jim and Carole Anne. [page 695]

The couple was shot in bed in their Fort Frances home March 22, 1996.

But a mistrial was declared in the case last Oct. 19 after defence lawyer Dan Brodsky alleged in an opening statement to jurors that a scientist at the Centre of Forensic Sciences changed his opinion about a key piece of evidence -- a blood spatter on the wall above the couple's bed -- to bolster the crown's case because of "political interference" and "corruption" at the centre, reaching up to Young.

But in a recently released ruling, Platana says he's confident Prime and Young were just trying to ensure the lab followed recommendations from the Guy Paul Morin inquiry that a court be advised of all possible explanations for forensic evidence gathered in a criminal case.

"It was, in my view, an attempt by them to ensure that the centre could not later come under criticism for failing to have complied with the recommendations," said the Ontario Court, general division, judge.

"Their concern, I am satisfied, was not to change the evidence to suit the crown's case, but to ensure that the evidence to be given in court by scientists employed by the centre was scientifically sound."

During the first trial, Platana heard testimony in the jury's absence from the scientist, Michael Philp, and others at the forensic centre about what led Philp to alter his opinion about the blood stain.

A court-imposed publication ban prohibited reporters from printing that testimony, and the judge's comments on the bloodstain issue, until a new trial for Perlett concluded.

On Feb. 22 a jury convicted Perlett of two counts of second- degree murder after six days of deliberations. He's expected to be sentenced March 29.

At a 1997 preliminary hearing, Philp testified he went to the Perlett home after the murder and noticed an area in the blood spatter where staining was less intense.

Since the area was about the size and shape of an arm, Philp concluded the killer stood beside the wall and intercepted some of the blood, which would have been on his clothes.

Philp's opinion was welcome news to the defence, because no bloodstains were found on Perlett's clothing.

No bloodstains found on clothing

But in early 1988 [sic], Philp went on sick leave and the case was reassigned to Jonathan Newman, who had nine years experience at the lab.

Working from police photographs of the bloodstain, Newman concluded the void could be accounted for by blood spraying against the wall at different angles from two bullet holes in Jim Perlett's forehead.

When Philp learned about Newman's findings from Brodsky in September, he spoke with Prime and the Sept. 30 meeting was set up in an effort to reach a "consensus" between scientists, Philp testified.

In attendance were Philp, Newman, Newall and Keith Kelder and Cecile Hageman, the respective peer reviewers of Philp and Newman's work. [page 696]

By the end, Philp said he agreed to attach equal weight to other possible explanations for the partial void, including Newman's theory.

But Philp testified during a legal motion on Oct. 15 that he felt "pressure" during the meeting, but modified his opinion for sound, scientific reasons in keeping with the Morin recommendations.

"I can't deny pressure was not placed. Yes, pressure was placed on me," Philp told the court. "But I reacted to that pressure, I think, in a reasonable and objective fashion . . . I have honestly modified my view."

He added that while he had agreed to meet with the defence to discuss this, Prime told him Young decided the meeting wouldn't take place, but that the defence could submit questions and receive answers in writing.

Young didn't want a lone scientist going up against a four- person defence team, Newall testified. But Philp agreed to speak with the defence by phone.

"I had given my word to Mr. Brodsky, and when I give my word, I don't take it back," he told the court.

III. The Trial Judge's Reasons Concerning Liability

[47] In a lengthy and detailed judgment, the trial judge found that the October 20, 1998 article was defamatory of Dr. Young, but that the March 11, 1999 article was not. In relation to the October 20, 1998 article, the trial judge found [at para. 88] that "the reasonable and ordinary person reading the article and, in particular, the portions set out in the libel notice" would understand it to contain the following meanings defamatory of Mr. Young:

1. that Dr. Young met with Philp and pressured him to change key evidence, that the meeting was improper and held for improper motives and that his actions were potentially corrupt or a form of political interference; and

2. that Dr. Young's conduct was improper and resulted in or was a major contributor to the declaration of a mistrial.

[48] In particular, the trial judge noted [at para. 89] that the article was "set up (as per the sub-headline) as a story about a 'mistrial declared over a forensic controversy'". He stated that the first paragraph of the article confirmed the declaration of "a mistrial amid serious new questions" about the conduct of the CFS; that the second paragraph of the article spoke of pressure being applied by Dr. Young to shield the CFS from further embarrassment; and that the next few paragraphs explained that the change in evidence came about as a result of a meeting between Dr. Young and others with a witness, which was conduct amounting to corruption.

[49] As for the appellants' contention that the reader would know that the statements in the article were mere allegations advanced by a party to litigation, the trial judge said [at para. 90]: [page 697]

The statements in the article are not characterized as mere allegations advanced by a party to litigation. Nowhere is it made clear that the statements are not evidence and will be responded to. Rather, Brodsky's comments are described as explaining very distressing events that came to light after the opening statements were made. Brodsky's explanation to the jury is said to be given with the permission of the judge.

[50] The trial judge concluded [at para. 92], "the structure of the article [was] such that the reader is left with the impression that Dr. Young is the focus of the article and the criticisms" and that "Dr. Young's conduct played a significant role in the declaration of the mistrial".

[51] In addition, the trial judge [at para. 30] specifically rejected the appellants' submission that the statements that there had been three days of legal argument and that "the judge's reasons for declaring a mistrial cannot be reported" made it clear that more information was to come. Concerning the latter statement, the trial judge found it suggested that the situation was more complex rather than that there was another side to this story.

[52] Turning to the defences that were raised, the trial judge began by considering s. 4(1) of the Act, which provides as follows:

4(1) A fair and accurate report without comment in a newspaper or in a broadcast of proceedings publicly heard before a court of justice, if published in the newspaper or broadcast contemporaneously with such proceedings, is absolutely privileged unless the defendant has refused or neglected to insert in the newspaper in which the report complained of appeared or to broadcast, as the case may be, a reasonable statement of explanation or contradiction by or on behalf of the plaintiff.

(Emphasis added)

[53] The parties' positions differed on the questions of: whether the appellants had established that there was a publication ban in place under s. 648(1) of the Criminal Code, R.S.C. 1985, c. C-46 [See Note 1 at the end of the document], and, if there was, whether it would automatically apply to all of the proceedings held in the absence of the jury; and whether the portions of the proceedings subject to the publication ban were publicly heard within the meaning of s. 4(1) of the Act. Accordingly, the trial judge considered the policy reasons underlying both s. 4(1) and publication bans. In relation to s. 4(1) he concluded [at para. 111]: [page 698]

In summary, therefore, the privilege for fair and accurate reports is rooted in the importance of courts being open to the public and in the benefit derived from having the audience of the court enlarged through the publication of reports of the proceedings. Fairness and accuracy in reports are essential to ensure that the public is left with the same impression and information whether reading a report or attending in court.

[54] In relation to publication bans, he concluded [at paras. 112 and 114]:

Publication bans serve various purposes, including protecting the identity of victims and minors and ensuring the impartiality of the potential jurors and jurors who have not been sequestered. They also limit the audience of the court and operate as a justified limit to freedom of the press . . . .

A publication ban is to be distinguished from an order that a proceeding be held in camera. In camera proceedings are exceedingly rare as they result in closure of the court to the public. These proceedings are held in the absence of the public and, therefore, no member of the public is or can be made aware of the proceeding.

[55] The trial judge held that it was clear from the transcript of the murder trial that the presiding judge intended that all proceedings held in the absence of the jury were to be covered by a publication ban under s. 648(1) of the Criminal Code. In addition, he found that the "proper reading of s. 648(1) is not an issue in this case given that the court determined the extent of the ban".

[56] The trial judge concluded [at para. 149] that a proper interpretation of s. 4(1) of the Act requires that "reports must be fair and accurate in the context of the whole of the proceeding, including the portions covered by the publication ban, while recognizing that the publication ban prevents the newspaper from reporting certain information". Further, citing MacDougall v. Knight, [1889] 14 A.C. 194, 14 App. Cas. 194 (H.L.), at p. 639 A.C., the trial judge held [at para. 154] that, "[i]t is neither onerous nor unfair to use the full day's proceedings as the measure against which the fair and accurate reporting requirement is evaluated".

[57] In holding that the October 20, 1998 article did not meet that test, the trial judge expressed the following conclusions:

-- Tyler would have known that Platana J. had determined that Dr. Young was not at the September 30 meeting. As a result, it was clearly incorrect and unfair to draw a contrary inference from Brodsky's second opening and include this inference in the article;

-- knowing that it was Brodsky's re-opening that tipped the balance and led the presiding judge to declare a mistrial, the article had to be carefully crafted so as not to leave the [page 699] reader with the impression that Dr. Young and the CFS acted improperly and that these actions were the cause or a principal cause of the mistrial; and

-- knowing that Dr. Young was in no way guilty of misconduct, Tyler should not have written an article that left the reader with the impression that Brodsky's statements were facts and worthy of belief.

[58] In response to the appellants' submissions that interpreting s. 4(1) as requiring that a report be fair and accurate in the context of the entire proceeding, including any portions of the proceeding heard in the absence of the jury, would place an impossible burden on reporters, the trial judge also said [at paras. 155 and 156]:

As to the concern that in some cases reporters may be unable to give the right spin or impression in their report without publishing testimony or information given in the absence of the jury, I view this as hypothetical. In many cases the report, even without reference to the portion of the proceedings covered by a publication ban, will not be defamatory and the s. 4(1) requirements will be of no relevance. In any event, this problem does not arise in the present case and I expect that, in virtually all cases, the reporter will be able to give the appropriate slant or spin to the article without running afoul of the publication ban. To benefit from the absolute privilege of s. 4(1), what reporters will be required to do as a result of this ruling is ensure that, where the report is otherwise defamatory, the slant or spin to the story does not leave readers with a false or unfair impression of the day's proceedings taken as a whole.

Without trying to rewrite Tyler's story, one can readily see that greater fairness and accuracy would have been achieved if the focus of the article had not been Dr. Young, if the article had not placed Dr. Young at the September 30 meeting and if, rather than suggesting that Brodsky's statements were worthy of belief, the article had clearly stated that Brodsky's statements were allegations that had not yet been proven. It was simply unfair to write an article that left the impression that the mistrial was caused in any way by Dr. Young's actions. Tyler would have known this information if she had attended the day's proceedings or spoken to the Crown.

[59] Turning to the defence of justification, the essence of the appellants' position was that right-thinking members of society would understand the article as being no more than a report of the allegations made by counsel in a jury address and would not interpret the article as suggesting that any of the reported statements are true. Although the trial judge had essentially dealt with this issue when addressing the meaning of the article, he addressed it once again. In particular, the trial judge said [at para. 168]:

The word "allegation" does not appear in the whole of the article. The occasional use of words such as "questions" in parts of the article does not take [page 700] away from the general thrust to the effect that the statements being reported are worthy of belief ... as I determined earlier, Brodsky's statements are characterized as special, having been allowed by the judge and being made after the parties held three days of legal argument.

[60] Finally, the trial judge rejected the defence of qualified privilege in relation to the October 20, 1998 article.

[61] The trial judge then went on to address the March 11, 1999 article. As already noted, although he held that it was not defamatory, the trial judge found that it did not offer Dr. Young an opportunity to make a reasonable statement of explanation or contradiction and that it did not constitute an apology or correction of the errors and defamatory statements contained in the first article. In particular, the trial judge found [at para. 193] that Ms. Tyler's call to Dr. Young was "not a bona fide attempt to obtain from him a reasonable statement of explanation or contradiction".

[62] In addition, the trial judge observed that the appellants did not acknowledge in the March 11, 1998 article that they had made an error in the October 20, 1998 article by placing Dr. Young at the September 30, 1998 meeting with Mr. Philp. Rather, the March 11, 1998 article simply specified who was at that meeting. Finally, the trial judge noted that, rather than explaining that the presiding judge's October 19, 1998 ruling was subject to a publication ban on October 20, 1998, the March 11, 1998 article suggested that "the information absolving Dr. Young . . . of all blame was not available at the time the first article was published".

IV. Analysis

(1) Did the trial judge err in finding that the October 20, 1998 article was defamatory?

[63] In submitting that the trial judge erred in finding that the October 20, 1998 article was defamatory, the appellants raise three issues, each of which includes sub-issues. I will deal with each issue in turn.

[64] The first issue raised by the appellants is that the article reported on the content of an opening address to a jury by a defence counsel. The appellants contend that a reasonable reader would have interpreted the article as simply reporting on the content of allegations made by an advocate and that the trial judge erred in failing to find that that was the meaning of the article. Further, since Mr. Brodsky actually made the allegations that were reported, the appellants submit that they were entitled to rely on the defence of justification. [page 701]

[65] In support of their position that a reasonable reader would have interpreted the article as reporting on mere allegations, the appellants rely on the fact that the article describes the points raised by Mr. Brodsky as "serious new questions". In addition, they point to several statements in the article that they say would have made it clear to a reasonable reader that he or she did not have all of the relevant facts (for example, "the judge's reasons for declaring a mistrial cannot be reported"; "legal arguments took place over three days last week but cannot be reported because they were heard in the absence of the jury"; and "Young could not be reached for comment last night").

[66] Further, the appellants say that the trial judge erred in interpreting the meaning of the article from the perspective of a person who was unduly suspicious and partial rather than from the standpoint of a "right-thinking member of society". For example, they note that, when dealing with the defence of justification, the trial judge found that the article "characterized [Mr. Brodsky's statements to the jury] as special". However, contrary to that finding, the article simply repeated what Mr. Brodsky actually said in his opening address, namely that he had been given permission by the presiding judge to readdress the jury and that he would be explaining some "very distressing events".

[67] I reject the appellants' submissions.

[68] I begin by observing that the issue of whether the article was capable of bearing the defamatory meanings found by the trial judge is a question of law, whereas the issue of whether the article actually conveyed those meanings is a question of fact.

[69] In my view, it was open to the trial judge to conclude, as he did, that the article was capable of bearing the defamatory meanings he found because the article was structured in such a way so as to leave the reader with the impression that Mr. Brodsky's statements to the jury were worthy of belief. As was noted by the trial judge, a key feature of the article is that it did not make reference to the fact that Mr. Brodsky's comments constituted an opening address. Further, although the article began with a reference to "serious new questions", it went on to report on Mr. Brodsky's statements to the jury, without clarifying that it was Mr. Brodsky's assertions that were the questions.

[70] Further, because the article referred to Mr. Brodsky's statement that the trial judge had given him permission to explain some "very distressing" events without explaining that his comments were part of an opening address, the article was capable of conveying the meaning that Mr. Brodsky's assertions were facts. As was noted by the trial judge [at para. 90]: [page 702]

The statements in the article are not characterized as mere allegations advanced by a party to litigation. Nowhere is it made clear that the statements are not evidence and will be responded to. Rather, Brodsky's comments are described as explaining very distressing events that came to light after the opening statements were made. Brodsky's explanation to the jury is said to be given with the permission of the judge.

[71] Moreover, I see nothing unreasonable about the trial judge's finding that none of the statements in the article offset the impression that had been created that Mr. Brodsky's statements were worthy of belief. As the trial judge put it [at para. 94], "[g]iven that the mistrial had already been declared, there is not necessarily any expectation that another side to the story is to come".

[72] Finally, I am not persuaded that the trial judge made a palpable and overriding error in concluding that the article bore the meanings he found. In my view, the trial judge did not misstate the content of the article when he said that it characterized Mr. Brodsky's statements to the jury as special. Rather, at that point in his judgment the trial judge was simply describing his previous conclusions.

[73] The second issue raised by the appellants is that because the article stated that the trial judge's reasons for declaring a mistrial could not be reported, it would have been obvious to a reasonable reader that the allegations of improper conduct made by Mr. Brodsky, which were reported in the article, could not be the cause of the mistrial. Because the trial judge effectively ignored this important element of the context of the article, he erred when he found that one of the defamatory meanings conveyed by the article was that "Dr. Young's conduct was improper and resulted in or was a major contributor to the declaration of a mistrial."

[74] To the extent that the appellants are submitting that the trial judge made an error in law because the article was not capable of bearing the meaning found by the trial judge, I disagree. In relation to this element of the article, the trial judge's specific finding was that, "the last sentence in the article stating that aethe judge's reasons for declaring a mistrial cannot be reported' seems to suggest that the situation is more complex, rather than to suggest that there is another side to the story." Accordingly, rather than ignoring this element of the article, the trial judge found that it had a particular meaning when read in the context of the entire article. I see no error either in the trial judge's conclusion that this was an available interpretation or in his finding that it was the meaning actually conveyed.

[75] The third issue raised by the appellants is that in reaching the conclusion that one of the defamatory meanings conveyed by [page 703] the article was that "Dr. Young's conduct was improper and resulted in or was a major contributor to the declaration of a mistrial", the trial judge improperly relied on the sub-headline of the article ("Mistrial declared over forensic controversy in double slaying"). Based on this court's judgment in Hansen v. Nugget Publishers Ltd., 1927 444 (ON CA), [1927] O.J. No. 110, 61 O.L.R. 239 (C.A.), the appellants contend that because the sub-headline was not complained of either in Dr. Young's libel notice or in his statement of claim, the trial judge was not entitled to rely on it to conclude that the October 20, 1998 article bore a defamatory meaning. In particular, the appellants refer to a statement at p. 245 O.L.R. of Hansen that "in cases of defamation the parties are held with reasonable strictness to their pleadings".

[76] I do not accept this submission. While it is true that the sub-headline was not referred to either in Dr. Young's libel notice or in para. 7 of Dr. Young's statement of claim where Dr. Young particularized the aspects of the article that he viewed as false and defamatory, the sub-headline is specifically pleaded in para. 5 of the statement of claim. Moreover, para. 8 of Dr. Young's statement of claim includes the following statement:

In addition, when read in the context of the other words and statements in the article, the words and statements set out in paragraph 7 meant and would be understood by the reasonable reader to mean . . . that the plaintiff's improper conduct resulted in the trial judge declaring a mistrial.

[77] As I read his reasons, the trial judge referred to the sub-headline for the purpose of providing a context for determining the meaning of the words about which Dr. Young specifically complained. Put another way, he approached the issues presented to him precisely in accordance with the manner in which they were pleaded. In addition, even if the trial judge was not entitled to refer to the sub-headline, I see no reasonable basis for concluding that that would have affected the trial judge's decision concerning the meaning of the article. While the sub-headline foreshadowed and highlighted the structure of the article, the structure found by the trial judge was apparent in any event.

[78] Based on the foregoing reasons, I would not give effect to this ground of appeal.

(2) Did the trial judge err in his interpretation of s. 4(1) of the Act and in failing to find that the defence of absolute privilege codified in [s. 4(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l12/latest/rso-1990-c-l12.html) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l12/latest/rso-1990-c-l12.html) applies?

[79] The appellants make two main submissions in relation to this issue. First, the appellants submit that the trial judge erred in interpreting s. 4(1) of the Act as requiring that "reports must [page 704] be fair and accurate in the context of the whole of the proceeding, including the portions covered by the publication ban". Second, the appellants contend that the October 20, 1998 article falls within the protection of s. 4(1) of the Act, as properly interpreted.

[80] For reasons that I will explain when dealing with the second issue raised by the appellants, in my view, the proceedings that were subject to the publication ban in this case (i.e., the stay application and the mistrial application) are irrelevant to the question of whether the October 20, 1998 article is absolutely privileged under s. 4(1) of the Act.

[81] Accordingly, the issue of whether s. 4(1) of the Act requires that reports must be fair and accurate in the context of any portion of proceedings that are subject to a publication ban does not arise on the facts of this case, and the trial judge erred in holding that, in order to qualify for the absolute privilege afforded by s. 4(1) of the Act, the appellants were required to take those proceedings into consideration.

[82] Turning to the second issue raised by the appellants, in my view, examined solely in the context of the proceedings that occurred in the presence of the jury, the trial judge's conclusion is correct that the October 20, 1998 article does not meet the requirements of s. 4(1) of the Act.

[83] In order to fall within the protection of s. 4(1) of the Act, a report must meet the threshold requirements of being "[a] fair and accurate report without comment . . . of proceedings publicly heard before a court of justice".

[84] Accepting the appellants' submissions that "a fair and accurate report without comment" means "a substantially fair or correct account of the proceedings that took place in open court", that a reporter is not required to verify the statements made by counsel, and that a media report of court proceedings is "accurate" for the purposes of s. 4(1) of the Act if it is "substantially accurate", the October 20, 1998 article still does not meet this threshold.

[85] An essential component of the trial judge's findings that the October 20, 1998 article is defamatory and not protected by any of the defences relied on by the appellants, is his finding that the article failed to clarify that Mr. Brodsky's statements were allegations by an advocate, but rather left the impression that they were facts worthy of belief.

[86] In my view, it is at least arguable that the meaning conveyed to the jury by Mr. Brodsky's statement, "something very distressing has been exposed, and His Honour has permitted me to explain it to you", is the precise meaning the trial judge attributed to the article (i.e., that the things Mr. Brodsky was proceeding to [page 705] tell the jury were facts worthy of belief). Nevertheless, for the reasons that follow, I reject the proposition that the appellants were entitled to simply report Mr. Brodsky's comments in a way that conveyed that meaning and then rely on s. 4(1) of the Act.

[87] Both immediately before and immediately following Mr. Brodsky's comments, the presiding judge explicitly told the jury that Mr. Brodsky's statements constituted an opening address. Immediately following Mr. Brodsky's re-opening, the presiding judge reminded the jury that statements made during an opening address are not evidence. Viewed in the context of the presiding judge's instructions to the jury, the fact that the article reported Mr. Brodsky's comments in a manner that left the impression that his statements were facts worthy of belief, without clarifying that they were part of an opening address, was both unfair and inaccurate.

[88] However, in my view, the fact that the presiding judge made a ruling in which he concluded, based on the evidence that was adduced before him, that Dr. Young had not engaged in the wrongdoing alleged by Mr. Brodsky prior to Mr. Brodsky's re- opening is irrelevant to the question of whether this aspect of the article qualifies for the protection of s. 4(1) of the Act.

[89] In particular, since the presiding judge did not rule that the portion of Mr. Brodsky's re-opening repeating his position on the voir dire was either improper or irrelevant to the issues at trial, Mr. Brodsky was entitled to rely on that position in front of the jury despite the presiding judge's ruling on the stay application. In addition, the jury was entitled, if they deemed it appropriate based on the evidence adduced at trial, to act on Mr. Brodsky's allegations in assessing the credibility of the witnesses.

[90] Put another way, the binding effect of the presiding judge's ruling on the stay application extended no further than holding that Mr. Perlett had not established, based on the evidence adduced on the voir dire, that he was entitled to a stay of the charges against him based on an abuse of process. The presiding judge's ruling was based on evidence called on a voir dire rather than on evidence that formed part of the record in front of the jury. Further, the legal effect of the ruling was limited to determining whether a stay of proceedings should be granted -- it was not a binding determination of the factual issues that the jury would be asked to decide.

[91] Since the presiding judge's ruling on the stay application did not affect either the position Mr. Brodsky was entitled to take in front of the jury or the decision the jury was entitled to make, I can see no basis for holding that media outlets had to take the stay application into account when preparing a report concerning [page 706] counsel's submissions to the jury and the evidence upon which the jury was being asked to act.

[92] What media outlets were not entitled to do was to portray counsel's statements to the jury in a manner that did not comply with s. 4(1) of the Act. Irrespective of the presiding judge's ruling, they were not entitled to present counsel's submissions in a manner that portrayed those submissions as facts and they were not entitled to "comment" on counsel's opening by drawing inferences concerning the facts that counsel did not explicitly state.

[93] Further, to the extent that Dr. Young maintains (based on decisions such as Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104; R. v. Brown, 1998 14946 (ON SC), [1998] O.J. No. 482, 126 C.C.C. (3d) 187 (Gen. Div.); and R. v. Regan, 1997 11496 (NS SC), [1997] N.S.J. No. 427, 124 C.C.C. (3d) 77 (S.C.)) that it is strongly arguable that the s. 648 Criminal Code publication ban did not extend to the presiding judge's ruling dismissing the stay application and to the voir dire itself because publication would have not prejudiced Mr. Perlett's fair trial rights, I disagree.

[94] As already noted, despite the presiding judge's ruling on the stay application, defence counsel for Mr. Perlett was entitled to call the same evidence in front of the jury and make the same submissions to the jury as he made on the voir dire, but this time, in relation to the credibility of the witnesses. In this context, it would be prejudicial to the accused for the jury to learn that the trial judge made a legal ruling based on a finding that the defence had not proven the allegations the defence then advanced before the jury.

[95] A second component of the trial judge's findings that the October 20, 1998 article is defamatory and not protected by any of the defences relied on by the appellants is his finding that the article conveyed the meaning that Dr. Young's conduct was improper and resulted in or was a major contributor to the declaration of a mistrial. The trial judge concluded that this aspect of the article did not fall within the protection of s. 4(1) of the Act because, taking account of the presiding judge's reasons for declaring a mistrial, that meaning was neither fair nor accurate.

[96] Again, I conclude that the presiding judge's reasons for declaring a mistrial are irrelevant to the issue of whether the October 20, 1998 article satisfied the requirements of s. 4(1) of the Act.

[97] The only explanation given to the jury concerning the cause of the mistrial was the following statement by the presiding judge:

I must, regrettably, simply indicate to you at this point in time that as a result of a number of matters which have arisen, including some matters which arose very recently before you, that I have now, very reluctantly, [page 707] come to the conclusion that I am no longer able to continue this trial with you as the jury.

[98] The jury was not told the reason for the mistrial. Accordingly, the mere fact that the October 20, 1998 article left "the reader with the impression that Dr. Young . . . acted improperly and that [his] actions were the cause or a principal cause of the mistrial" was sufficient to take the article out of the protection of s. 4(1) of the Act. The impression created by the article was neither a fair nor an accurate reflection of what happened in the presence of the jury; moreover, in my view, it amounted to a comment within the meaning of s. 4(1) of the Act.

[99] A third component of the trial judge's findings that the October 20, 1998 article is defamatory and not protected by any of the defences relied on by the appellants is his finding that, in the face of the presiding judge's determination that Dr. Young was not at the September 30 meeting, it was unfair to draw a contrary inference from Mr. Brodsky's re-opening and include that inference in the article.

[100] Again, in my view, it was unnecessary that the trial judge consider the presiding judge's findings to decide that this aspect of the October 20, 1998 article did not satisfy the requirements of s. 4(1) of the Act. At this point, it is important to remember that an opening address to a jury is intended to be an outline of the evidence counsel intends to call. In his re-opening, Mr. Brodsky did not assert that Dr. Young was at the September 30, 1998 meeting or that he was going to call evidence to that effect. By saying that Dr. Young was present at the September 30, 1998 meeting, and by at least implying that Dr. Young was personally involved in exerting improper pressure on Mr. Philp, the October 20, 1998 article was patently inaccurate and drew inferences that I consider amounted to comments within the meaning of s. 4(1) of the Act.

[101] I have had the benefit of reading the concurring judgment of my colleague LaForme J.A. in which he addresses the s. 4(1)/publication ban issue. As I have already explained, the proceedings that were the subject of a publication ban were irrelevant, in this case, to the fairness or accuracy of the appellants' report of what occurred in the presence of the jury. Accordingly, the issue of whether the appellants should have taken account of the proceedings forming the subject matter of the publication ban did not arise on the facts of this case and it was unnecessary that the trial judge determine it.

[102] In my respectful view, absent a fact situation in which the s. 4(1)/publication ban issue is squarely raised, the values and interests favouring the competing positions will not be fully [page 708] engaged and cannot be properly assessed. Accordingly, the issue should remain to be determined in a proper case, in which it is squarely raised on the facts. In the circumstances, nothing in my reasons should be taken as suggesting that I agree with my colleague's analysis and conclusions concerning the s. 4(1)/publication ban issue.

[103] Further, while I do not agree that this is a proper case in which to undertake an analysis of the s. 4(1)/ publication ban issue, I do consider it necessary that I comment on my colleague's interpretation of the trial judge's reasons relating to it. In particular, to the extent that my colleague concludes that the trial judge erred in determining that s. 4(1) of the Act requires reporters to "slant or spin" their stories to take account of proceedings subject to a publication ban, in my respectful view, my colleague has misinterpreted the trial judge's reasons.

[104] I acknowledge that the trial judge referred, in his reasons, to the concept of spinning and slanting. However, as I read his reasons, the trial judge's comments were made in response to a concern expressed by the appellants that reporters would be unable, in some cases, to give the right spin or impression to their story without reporting matters that were subject to a publication ban. Contrary to my colleague's conclusion, I do not interpret the trial judge as saying that s. 4(1) of the Act imposes a requirement on reporters to spin or slant their stories to take account of proceedings subject to a publication ban.

[105] In light of the foregoing conclusions, I would not give effect to this ground of appeal.

(3) Did the trial judge err in his assessment of damages?

(a) The trial judge's reasons relating to damages

[106] In addressing the issue of damages, the trial judge began by reviewing some of the general principles relating to damage awards for defamation. In particular, the trial judge [at para. 207] noted that "[w]hile damages are presumed, it is not presumed that damages are substantial", and that "[t]he onus is on the plaintiff to elicit evidence establishing the measure of his damages" (citing Raymond E. Brown, Law of Defamation in Canada, 2nd ed., looseleaf (Scarborough: Carswell, 1999) at 25-12).

[107] In addition, the trial judge quoted this court's statement in Myers v. Canadian Broadcasting Corp. (2001), 2001 38741 (ON CA), 54 O.R. (3d) 626, [2001] O.J. No. 2228 (C.A.), at p. 631 O.R. that, "damages reflect what the law presumes to be the natural or probable consequences of the defendant's conduct and the harm [page 709] which normally results from such defamation", and the Supreme Court of Canada's statement that "[t]he consequences which flow from the publication of an injurious false statement are invidious": Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, at para. 165.

[108] After reviewing the facts relevant to the issue of damages in this case, the trial judge set out a non-exhaustive list of aggravating and mitigating factors that he had weighed:

Aggravating Factors

(1) The Toronto Star is a highly respected publication with wide circulation;

(2) The plaintiff has an excellent reputation and is well regarded in the community;

(3) The plaintiff's reputation for honesty is important both to him personally and to his ability to accomplish his duties as chief coroner and Assistant Deputy Minister responsible for the CFS;

(4) The defamation was serious in nature. The plaintiff was effectively accused of corruption and political interference and of being the cause of a mistrial. . . . ;

(5) The defamation had a serious impact on the plaintiff personally;

(6) The investigation carried out by the deputy minister indicated that the defamatory article had the potential to impact on the plaintiff's employment situation;

(7) The article's structure put the focus on the plaintiff even though the plaintiff's role in the events was relatively minor;

(8) The defendants' conduct after publication of the defamatory article was problematic. Despite their knowledge that the plaintiff had done nothing improper there was no bona fide attempt to correct the wrong that had been done to him. Even the second article, while giving a balanced picture, did not acknowledge that an error had been made in the first article nor that the ruling of Platana J. had been known to or was available to the newspaper at the time of that first publication;

(9) The fact that Tyler breached the Toronto Star's own policy is also problematic. This policy required that she contact both sides in the event that she was reporting on a trial she had not attended. It is no answer to say that she did not believe the other side could provide any useful information to her. The Crown could have given her the full context and this would have alerted her that the "spin" being given to the article and the focus on Dr. Young were inappropriate. It is also of concern that she testified that it would have made no difference to her article if she had been given the whole context by the Crown;

(10) There has never been an apology or retraction published by the defendant newspaper;

(11) In light of the publication ban and ongoing criminal trial it was difficult for the plaintiff to respond to the accusations. [page 710]

Mitigating Factors

(1) The second article published by the defendants put the plaintiff in a generally favourable light and went some distance to correcting the impression left by the earlier article;

(2) There is no evidence that the plaintiff's career has been destroyed nor that he has lost any opportunities because of the defamatory content of the article;

(3) Despite the inappropriateness of the focus of the article on Dr. Young, the evidence does not establish that the publication of the article was motivated by actual malice. . . . ;

(4) The defamation while serious, was not as serious as in cases such as Myers and Leenen v. Canadian Broadcasting Corp. [(2001), 2001 4874 (ON CA), 54 O.R. (3d) 612, [2001] O.J. No. 2229 (C.A.)], where the allegations were in effect that the respective plaintiffs' actions had led to deaths;

(5) This was an unusual situation not normally encountered by a reporter. While publication bans are not unusual it is unusual that a report is made defamatory because it did not take into account the information covered by the publication ban. Here the existence of the publication ban made a full report of the proceedings impossible and made the drafting of a "fair and accurate report" more difficult;

(6) This was not an investigative report as in the cases of Myers and Leenen, supra, where the analysis, factual statements and conclusions drawn would normally be given more weight by the public;

(7) The factual statements in the article, other than stating that Dr. Young was at the September 30 meeting, were accurate reports of what Brodsky had said to the jury. The allegations were not made up and the words were not distorted as in cases such as Leenen and Hill, supra.

[109] After weighing these factors, the trial judge said that he found the defamation to be more serious than in Dennison v. Sanderson, 1946 71 (ON CA), [1946] O.R. 601, [1946] 4 D.L.R. 314 (C.A.) and Pacheco (c.o.b. Pacheco Cleaners) v. DeRango, [2001] O.J. No. 3500 (S.C.J.), but less serious than in Myers and Leenen. He accordingly awarded $100,000 in general damages, which he reduced by 10 per cent in accordance with s. 10 of the Act, providing for a reduction of damages that are jointly caused [See Note 2 at the end of the document].

[110] The trial judge rejected Dr. Young's claim that actual malice had been established. He said [at para. 254] that although he was troubled by Ms. Tyler's evidence that no information she could have received on October 19, 1998 would have led her to [page 711] change her article, he accepted that this was "due in large measure to her understanding of the effect of a publication ban", and that "she could and should ignore the rest of the day's proceedings". Further, although he was also concerned that no apology or correction was ever published, he found that the March 11, 1999 article "was favourable to [Dr. Young] and not an indication of malice".

[111] In addition, the trial judge said [at para. 255]:

The present case is quite different from Hill, Leenan and Myers in that regard. The difference is one of kind rather than degree. In the present case, the allegations reported (with the exception of placing Dr. Young at the September 30 meeting) had been made by Brodsky and could be reported. The defamation occurred because the defendants incorrectly believed the report need not take into account those parts of the day's proceedings covered by a publication ban, and because of the way the reporter structured the article. The combination led to the defendants losing the absolute immunity provided in s. 4(1) of the Libel and Slander Act.

[112] Given his finding that malice had not been established, and because in fixing the amount of general damages he took into account various aggravating factors, including the absence of an apology, the fact that no reasonable statement of explanation or contradiction was published and the post- publication conduct of the defendants, the trial judge declined to award aggravated damages. For the reasons set out in relation to aggravated damages, the trial judge concluded that this was not an appropriate case for punitive damages.

(b) The appeal relating to damages

[113] The appellants submit that there is no justification in this case for an award of general damages in the amount of $100,000. In particular, they point out that although general damages are presumed and awarded at large in defamation cases, the law does not presume a right to substantial damages. The appellants submit that the onus is on the plaintiff to lead evidence of loss of reputation, mental pain, suffering or distress justifying a substantial award. If a plaintiff's reputation has not been seriously affected, general damages may be nominal.

[114] The appellants submit that in this case the evidence at trial established that: despite the impugned article, Dr. Young's career has flourished; that Dr. Young has the support of his wife and children; that the article has had no permanent effect on his family life; and there was no evidence led at trial that Dr. Young has been "shunned" as a result of the October 20, 1998 article. Put another way, the appellants contend that Dr. Young failed to establish an evidentiary basis at trial for an award of substantial damages. [page 712]

[115] In addition, the appellants contend that, in awarding general damages, the trial judge attached undue importance to the investigation carried out by the Deputy Minister, which they say lasted only a day or two, and which quickly resulted in Dr. Young's vindication. This is particularly so given that the evidence established that the presiding judge's criticism of CFS's conduct in his October 19, 1998 ruling would have worked its way up to the Deputy Minister and resulted in some investigation in any event.

[116] Based on the totality of these circumstances, the appellants contend that the award of $100,000 so far exceeds the upper limit of what might be reasonable (which the appellants say is $20,000), that it shocks the conscience of the court.

[117] In addition, the appellants submit that the trial judge erred by failing to apply a proper discount under s. 10 of the Act. Section 10 of the Act provides:

10. In an action for a libel in a newspaper or in a broadcast, the defendant may prove in mitigation of damages that the plaintiff has already brought action for, or has recovered damages, or has received or agreed to receive compensation in respect of a libel or libels to the same purport or effect as that for which such action is brought.

[118] Because Dr. Young has made virtually identical claims against The Globe and Mail and Thunder Bay Chronicle Journal relating to similar articles published in those newspapers on October 20, 1998, and because The Globe and Mail is a national newspaper with a large circulation, the appellants contend that the trial judge erred in failing to dramatically reduce the $100,000 award of damages made against The Toronto Star.

[119] I reject the appellants' submissions. In Hill v. Church of Scientology of Toronto, supra, Cory J. confirmed at paras. 158-59 that appellate courts are not to interfere lightly with damage awards in defamation actions. Citing Walker v. CFTO Ltd. (1987), 1987 126 (ON CA), 59 O.R. (2d) 104, [1987] O.J. No. 236 (C.A.), he said that an appellate court should consider:

whether the verdict is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate or, put another way, whether the verdict is so exorbitant or so grossly out of proportion to the libel as to shock the court's conscience and sense of justice.

[120] Although Hill and Walker both involve jury awards, in the Law of Defamation in Canada, supra, at 25-262, citing Littleton v. Hamilton (1974), 1974 438 (ON CA), 4 O.R. (2d) 283, 47 D.L.R. (3d) 663 (C.A.), the author states:

Appellate courts are loath to interfere with the verdict of a jury or, a finding of a court. They have indicated an extreme reluctance to upset an award of [page 713] damages in defamation cases, particularly where the objection is that the award is too small.

[121] As I read the trial judge's reasons, a key factor driving the damage award is the fact that the defamatory meanings related to Dr. Young's professional calling and integrity. At the time of the impugned article, Dr. Young was not only a professional, but the holder of a significant public office. It was important that he be perceived as worthy of the public's trust. The trial judge's finding of defamatory meanings asserted corruption and political interference, not only on the part of an institution for which Dr. Young was responsible (the CFS), but on the part of Dr. Young personally. The defamatory meanings went to the very core of Dr. Young's professional reputation.

[122] The context of the defamatory statements added to their seriousness, i.e., they were statements made to a jury by a lawyer with the permission of the presiding judge, and they were statements that led to a mistrial.

[123] In these circumstances, I see no error in the trial judge's conclusion that the serious nature of the defamatory meanings justified an order for substantial damages in order to "clearly demonstrate . . . to the community the vindication of the plaintiff's reputation" (see Hill v. Church of Scientology of Toronto, supra, at para. 166).

[124] As for the appellants' submissions concerning s. 10 of the Act, in my view, the trial judge made no error when he said [at para. 241], "the court should be prudent in reducing the recoveries made in the present claim by reason of other claims which have not yet been proven or taken to judgment" and that "in assessing the extent of mitigation proven by the [appellants] the court should err in favour of [Dr. Young]".

[125] As was noted by the trial judge, the onus of proving the extent of mitigation was on the appellants. The total circulation of The Globe and Mail was not put into evidence nor was its circulation in the Toronto area or in the rest of Ontario. More importantly, however, the other actions had not yet proceeded to trial. Although the articles that appeared in The Globe and Mail and the Thunder Bay Chronicle Journal are similar to the October 20, 1998 article that appeared in The Star, there are important differences. For example there was no reference in The Globe and Mail article to Mr. Brodsky's statements being made with the permission of the trial judge. In light of all of the circumstances, in my view, the trial judge did not err in taking a conservative approach to mitigation.

[126] I would not give effect to this ground of appeal. [page 714]

(c) The cross-appeal relating to damages

[127] By way of cross-appeal, Dr. Young submits that the award of general damages is so inordinately low that it satisfies the high threshold for appellate intervention. In addition, he submits that the trial judge erred in finding that malice had not been established and by failing to award aggravated and/or punitive damages.

[128] While acknowledging that damage awards in defamation cases must be determined based on the unique facts of each case, Dr. Young submits that the same factors affecting damages in this case are the same as those in the category of cases exemplified by Leenen and Hill, and that the trial judge erred by failing to award damages in the same range as was awarded in those cases.

[129] In particular, Dr. Young points out that, as in those cases: he was defamed in his profession (which was a public office); the defamatory statements were extremely serious; they were made by a credible accuser (The Toronto Star); they had the potential to place his job and career at risk and, in fact, prompted an investigation; they were published widely; no apology has ever been made; the appellants failed to respond promptly or completely to his request for a reasonable explanation; the appellants threatened to approach the Minister when providing a statement of explanation; and the appellants have persisted throughout both at trial and now on appeal in advancing a plea of justification.

[130] Without in any way diminishing the seriousness of the defamation that occurred, I do not accept Dr. Young's submissions. In my view, it was open to the trial judge to distinguish this case from the Hill and Leenen category of cases and I see no palpable and overriding error in his reasons for doing so.

[131] In particular, the trial judge found that malice was not established, and that the appellants were entitled to report Mr. Brodsky's comments to the jury provided that they made it clear that his comments were the allegations of an advocate. These are important factors distinguishing this case from the Hill and Leenen category of cases.

[132] Further, although I do not agree that the existence of the publication ban made this a difficult situation in which to prepare a fair and accurate report within the meaning of s. 4(1) of the Act, I do agree that this was an unusual situation not normally encountered by a reporter that created challenges for preparing a fair and accurate report.

[133] The fact that Mr. Brodsky was allowed to re-open is in itself unusual. More significantly, however, Mr. Brodsky's statements in [page 715] his re-opening address created a significant aspect of the problem with the article (i.e., he said "something very distressing has been exposed, and His Honour has permitted me to explain it to you"). Arguably, Mr. Brodsky left the jury with the impression that all of his comments were made with the court's permission. To the extent that he said that, the appellants were entitled to report it; however, fairness dictated that they also report the trial judge's clarification. In my view, this is a subtlety and a difficulty that very few opening addresses create.

[134] As for the trial judge's finding that malice was not established, Dr. Young relies on the fact that Ms. Tyler knew from speaking to Mr. Brodsky that the mistrial was declared because Mr. Brodsky went too far in his opening address. Accordingly, when the appellants published an article implying that it was Dr. Young's actions that caused the mistrial, they published an article creating an inference that they knew was false. Dr. Young submits that the trial judge erred in failing to find that that conduct, in and of itself, constitutes malice.

[135] In this respect, Dr. Young relies on the following statement of this court in Hodgson v. Canadian Newspapers Co. (2000), 2000 14715 (ON CA), 49 O.R. (3d) 161, [2000] O.J. No. 2293 (C.A.), at para. 35:

As it is usually difficult to prove spite or ill-will, malice is ordinarily established through proof that the defendant knew that the statement complained of was untrue, was reckless with respect to its truth or that the defendant had some improper motive or purpose. It has also been held that malice is shown where the defendant did not believe the truth of the statements published.

[136] Further, Dr. Young contends that, particularly when combined with the serious nature of the allegations and the appellants' failure to investigate, the trial judge's finding that "the defendants were, in a sense, sensationalizing certain statements made in court when the essence of the allegations had been demonstrated to be unfounded" went a long way towards establishing malice. A finding of malice, together with the appellants' failure to correct their erroneous statements, the lack of an apology and the appellants' persistence in claiming privilege should have resulted in a substantial award of both aggravated and punitive damages.

[137] I do not accept these submissions for several reasons. First, I am not persuaded that the trial judge erred in finding that malice had not been established. In rejecting the submission that malice had been proven, the trial judge said [at paras. 254 and 255]:

While I am troubled by Tyler's evidence that no information she could have received on October 19 would have made her change her article, I accept [page 716] that this is due in large measure to her understanding of the effect of a publication ban. Her understanding, although incorrect, was that she could and should ignore the rest of the day's proceedings. This militates against a finding of actual malice. Although I am also concerned that no apology or correction was ever published, and that the conduct of the defendants after the article was published and the error was discovered was in some respects inappropriate, I do not think this should lead me to award aggravated damages. The second article, while it was not printed promptly after the Perlett jury retired and was not an apology, was favourable to the plaintiff and not an indication of malice.

The present case is quite different from Hill, Leenen and Myers in that regard. The difference is one of kind rather than degree. In the present case, the allegations reported (with the exception of placing Dr. Young at the September 30 meeting) had been made by Brodsky and could be reported. The defamation occurred because the defendants incorrectly believed the report need not take into account those parts of the day's proceedings covered by a publication ban, and because of the way the reporter structured the article. The combination led to the defendants losing the absolute immunity provided in s. 4(1) of the Libel and Slander Act.

[138] As I read his reasons, the trial judge found that malice was not established because he was satisfied that the appellants failed to qualify for the absolute privilege provided by s. 4(1) of the Act as the result of a misunderstanding of their obligations under the Act and through either inadvertence or negligence in preparing the article. That, in combination with the second article, was sufficient in his view to negative the effect of the other evidence that pointed towards malice. In my view, it was open to the trial judge to reach this conclusion.

[139] Second, in rejecting Dr. Young's claim for aggravated damages, the trial judge said that he had taken into account the various aggravating factors relied on by Dr. Young in fixing the amount of general damages (including the absence of an apology, the fact that no reasonable statement of explanation or contradiction was published, and the post- publication conduct of the defendants). I see no error in this approach. See Law of Defamation, supra, at 25-32.

[140] Finally, given the trial judge's finding that malice had not been established, I see no error in his conclusion that this was not a case for punitive damages. See Hill v. Church of Scientology of Toronto, supra, at para. 196.

(4) Did the trial judge err in fixing costs?

[141] As already noted, the trial judge awarded Dr. Young his costs of the action on a partial indemnity basis in the amount of $210,985.76 inclusive of disbursements and applicable GST.

[142] The appellants seek leave to appeal the costs order. They claim that the costs award is not fair or reasonable and that it is [page 717] based on errors in law. In particular, they submit that the trial judge erred in holding that the pro bono/contingency fee arrangement between Dr. Young and Mr. Rueter was proper and by failing to take into account the government's agreement to contribute $192 per hour towards Dr. Young's legal fees up until the date of the pre-trial. In total, they seek a reduction in the costs award to $60,900.

[143] I reject the appellants' submissions. The pro bono/ contingency fee arrangement between Dr. Young and his solicitor was not per se illegal at the time it was entered into: see McIntyre Estate v. Ontario (Attorney General) (2002), 2002 45046 (ON CA), 61 O.R. (3d) 257, [2002] O.J. No. 3417 (C.A.).

[144] Further, according to an affidavit filed by Mr. Rueter, up until the date of the pre-trial, the pro bono/contingency fee arrangement between him and Dr. Young was that Mr. Rueter would render ongoing accounts based on the government's contribution to his legal fees ($192 per hour), and that the difference between that rate and Mr. Rueter's standard hourly rate would be made up out of costs recovery in the action, if any. Following the pre-trial, fees calculated at Mr. Rueter's standard hourly rate for services performed thereafter were to be payable by Dr. Young out of any recoveries in the action. Particularly because the arrangement between Dr. Young and his solicitor was based on an hourly rate form of billing, I see no error in the trial judge's conclusion that the arrangement was not illegal.

[145] As for the appellants' submission that the trial judge erred by failing to reduce the costs award in light of the government's contribution to Dr. Young's legal fees up until the date of the pre-trial, the trial judge accepted Mr. Rueter's evidence concerning the nature of the arrangement between him and Dr. Young. I see no basis for holding that the trial judge erred in doing so. Moreover, taking account of the fact that costs were assessed on a partial indemnity basis, Mr. Rueter's actual hourly rates during the period preceding the pre-trial and the fact that the trial judge reduced the amount he awarded on account of Mr. Rueter's hourly rate from $350 per hour to $200 per hour for approximately 200 of the 546.8 non-trial hours claimed (together with the possibility alluded to by the trial judge that Dr. Young may be obliged to repay the government for its contributions), it does not appear likely that Dr. Young will receive a windfall as a result of the trial judge's costs award. In the circumstan ces, I see no error in the trial judge's conclusion that the government's contribution is irrelevant to the costs issue. [page 718]

[146] Finally, I see no other error favouring the appellants in the trial judge's exercise of his broad discretion in relation to costs. Accordingly, while I would grant leave to appeal costs, I would dismiss the appellants' costs appeal.

[147] Dr. Young also requests leave to cross-appeal the costs award, arguing that the trial judge erred in principle by reducing legal research and trial preparation hours spent by senior counsel from $350/hour to $200/hour for 200 hours. In all of the circumstances of this case, in my view, this was an issue coming within the purview of the trial judge's broad discretion in determining a fair and reasonable award of costs.

[148] Accordingly, I would grant leave to cross-appeal costs, but dismiss the cross-appeal.

V. Disposition

[149] Based on the foregoing reasons, I would dismiss the appeal and the cross-appeal. Although this disposition reflects divided success to some degree, because Dr. Young was successful in maintaining his judgment, I would award costs of the appeal to Dr. Young on a partial indemnity basis fixed at $25,000 inclusive of disbursements and applicable GST and make no order as to the costs of the cross-appeal.

LAFORME J.A. (concurring in result):--

I. Overview

[150] In comprehensive and thoughtful reasons, Simmons J.A. would dismiss both the appeal and cross-appeal. She concludes that the trial judge made no palpable and overriding error when he found The Toronto Star's October 20, 1998 article defamatory of Dr. Young. Further, my colleague holds that the October 20th article does not meet the threshold required to rely on the absolute privilege of s. 4(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12.

[151] While I agree with my colleague's result, in my view it is important to address the trial judge's interpretation of s. 4(1), specifically his suggestion that reporters take into account proceedings subject to a publication ban.

[152] My colleague concludes that it is unnecessary to deal with the interpretation of s. 4(1) on the facts of this case. While I believe the trial judge could have reached the decision he did on the issue of fairness and accuracy without considering matters subject to the publication ban, he nevertheless appears to me to have considered them. Moreover, the interpretation of s. 4(1) was [page 719] fully argued as one of the main grounds of appeal. For these reasons, it is important, in my view, for this court to provide guidance on the application of s. 4(1) in the context of publication bans.

II. Analysis

[153] Section 4(1) of the Act creates an absolute privilege in "fair and accurate" reports of court proceedings by newspapers and broadcasters:

4(1) A fair and accurate report without comment in a newspaper . . . of proceedings publicly heard before a court of justice, if published in the newspaper . . . contemporaneously with such proceedings, is absolutely privileged unless the defendant has refused or neglected to insert in the newspaper in which the report complained of appeared . . . a reasonable statement of explanation or contradiction by or on behalf of the plaintiff.

[154] In his interpretation, the trial judge makes compliance with s. 4(1) dependent on a reporter taking into account those portions of the proceedings subject to a publication ban. In particular, he says [at para. 149]:

In my view, the proper reading of s. 4(1) is that reports must be fair and accurate in the context of the whole of the proceeding, including the portions covered by the publication ban, while recognizing that the publication ban prevents the newspaper from reporting certain information.

(Emphasis added)

He further states [at para. 155]:

As to the concern that in some cases reporters may be unable to give the right spin or impression in their report without publishing testimony or information given in the absence of the jury, I view this as hypothetical. In many cases the report, even without reference to the portion of the proceedings covered by a publication ban, will not be defamatory and the s. 4(1) requirements will be of no relevance. In any event, this problem does not arise in the present case and I expect that, in virtually all cases, the reporter will be able to give the appropriate slant or spin to the article without running afoul of the publication ban.

(Emphasis added)

[155] In my respectful view, the trial judge erred in law in interpreting s. 4(1) in this way for three reasons.

[156] First, the trial judge's interpretation is inconsistent with the important purposes served by partial publication bans. One important purpose of publication bans in criminal trials is to keep evidence that may be irrelevant, prejudicial, or otherwise unsafe from infringing on an accused person's right to a fair trial. Publication of the evidence and findings determined through a voir dire or other hearing conducted in the absence of a jury could threaten the fairness of the trial if it found its way into the public [page 720] domain and ultimately to the jury's attention. Publication bans therefore accomplish the balancing of two very significant objectives: the court remains open to the public; and trial fairness is preserved to the greatest extent possible: Dagenais v. Canadian Broadcasting Corp., supra.

[157] Second, a failure to abide by a court-ordered ban on publication can have dire consequences, such as prosecution under the Criminal Code or contempt of court proceedings. Reporters should be encouraged to report on court proceedings, not discouraged by suggesting that they need to take into account proceedings subject to a publication ban when doing so may give rise to such sanctions. This is especially important given the media's role in promoting the principle of open courts. The public relies on the media to learn what transpires in our open courts. It is for this reason that such media reports are protected by a privilege in the first place: Hill v. Church of Scientology of Toronto, supra, at paras. 151-53; and MacDougall v. Knight, supra.

[158] Third, the trial judge's suggestion that the story should be spun or slanted to take into account proceedings subject to a publication ban is inconsistent with the wording of s. 4(1), which requires a report to be without comment. As the appellants submit, requiring a report to provide "spin" or "slant" is inherently subjective. Adding a spin or slant is, in effect, offering opinion or a viewpoint that is not a recounting of the event being reported on. This amounts to comment, which represents departure from fair and accurate reporting and removes it from the absolute privilege afforded by s. 4(1).

[159] Therefore, in my view, in order to satisfy the requirements of s. 4(1), a reporter need not (and, indeed, should not) take into account proceedings that are subject to a publication ban when reporting on proceedings that are not subject to such a ban.

III. Disposition

[160] Despite my conclusion that the trial judge misinterpreted s. 4(1), I nevertheless agree with my colleague's overall conclusion to dismiss the appeal and cross-appeal.

Appeal and cross-appeal dismissed.

Notes

Note 1: Section 648(1) of the Criminal Code provides:

648(1) Where permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published, after the permission is granted, in any newspaper or broadcast before the jury retires to consider its verdict.

Note 2: The Globe and Mail and the Thunder Bay Chronicle Journal published articles similar to the article published by the Toronto Star on October 20, 1998. Dr. Young has commenced proceedings against those newspapers advancing claims that are similar to this action.