Roy v. Ottawa Capital Area Crime Stoppers et al.
[Indexed as: Roy v. Ottawa Capital Area Crime Stoppers]
Ontario Reports Ontario Superior Court of Justice C. MacLeod J. July 5, 2018 142 O.R. (3d) 507 | 2018 ONSC 4207
Case Summary
Torts — Defamation — Plaintiff finding unattended purse and turning it over to bus driver — Police obtaining surveillance video of plaintiff taking purse and posting it on Crime Stoppers website along with text that referred to "purse snatching" and described plaintiff as "suspect" who "stole purse" — Plaintiff suing police and Crime Stoppers for damages for libel — Crime Stoppers' motion for summary judgment dismissing defamation claim against it being granted and police motion for summary judgment dismissed — Crime Stoppers having statutory defence to libel claim under s. 3(3) of Libel and Slander Act as it published fair and accurate synopsis of notice issued for information of public by public authority — Police defendants unable to demonstrate at summary judgment stage that they came within one of recognized defences to defamation action — Libel and Slander Act, R.S.O. 1990, c. L.12, s. 3(3).
Torts — Negligence — Plaintiff finding unattended purse and turning it over to bus driver — Police obtaining surveillance video of plaintiff taking purse and posting it on Crime Stoppers website along with text that described plaintiff as "suspect" who "stole purse" — Plaintiff suing police and Crime Stoppers for damages for negligence — Defendants' motion for summary judgment dismissing negligence claim dismissed — Whether either defendant owed plaintiff duty of care impossible to determine on affidavit evidence.
The plaintiff found an unattended purse in a shopping mall and turned it over to a bus driver. The owner of the purse reported it to the police as stolen. The police obtained surveillance video of the plaintiff taking the purse and posted it on the [page508] Crime Stoppers website with a caption that referred to a "purse snatching" and described the plaintiff as a "suspect" who "stole a purse". The plaintiff sued the police and Crime Stoppers for damages for libel and negligence. The defendants brought a motion for summary judgment dismissing the claims.
Held, Crime Stoppers' motion should be granted in part; the police motion should be dismissed.
Crime Stoppers had a complete statutory defence to the libel claim under s. 3(3) of the Libel and Slander Act as it published a fair and accurate synopsis of a notice issued for the information of the public by a public authority and there was no allegation of malice. The libel claim against Crime Stoppers was dismissed. The police defendants were unable to demonstrate conclusively at the summary judgment stage that they came within one of the recognized defences to a defamation action. There were genuine issues for trial on that issue and on the issue of whether either defendant owed the plaintiff a duty of care. The libel claim against the police and the negligence claim against both parties should proceed to trial.
Cases referred to
- Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3
- Cooper v. Hobart, [2001] 3 S.C.R. 537
- Crookes v. Newton, [2011] 3 S.C.R. 269
- Cusson v. Quan (2009), 102 O.R. (3d) 480, [2009] 3 S.C.R. 712
- Grant v. Torstar Corp., [2009] 3 S.C.R. 640
- Young v. Bella, [2006] 1 S.C.R. 108
Statutes referred to
- Canadian Charter of Rights and Freedoms
- Libel and Slander Act, R.S.O. 1990, c. L.12, s. 3(3)
Rules and regulations referred to
Authorities referred to
- Downard, Peter A., Libel, 2nd ed.(Markham, Ont.: LexisNexis, 2010)
- Linden, Allen M., and Bruce Feldthusen, Canadian Tort Law, 10th ed. (Toronto: LexisNexis, 2015)
MOTIONS for summary judgment dismissing an action.
Richard R. Marks, for plaintiff (responding party). Ashlee Barber, for defendant Crime Stoppers (moving party). [page509] Jeremy Wright, for defendant Ottawa Police Services Board (moving party).
[1] C. MACLEOD J.: — The defendants bring motions for summary judgment seeking dismissal of the plaintiff's claims for defamation and negligence. The action is scheduled for trial commencing October 9, 2018.
[2] Defamation and the intersection of defamation and negligence are complicated areas of law. For the reasons that follow, Crime Stoppers has a complete statutory defence to the libel action and is entitled to summary judgment for that portion of the claim. The negligence action may proceed.
[3] The police defendants are unable to demonstrate conclusively that they come within one of the recognized defences to a defamation action at the summary judgment stage. Summary judgment is not appropriate.
[4] The plaintiff may well face an uphill battle in this matter particularly with a jury but the test on a summary judgment motion is not scepticism. Summary judgment is to be granted if there is no genuine issue requiring a trial. Except as outlined above, that is not the case here.
Background
[5] Ottawa Capital Area Crime Stoppers ("Crime Stoppers") is the local crime stoppers organization. Crime Stoppers is well known for operating an anonymous tip line and providing rewards for information leading to arrests or recovery of stolen property. Each crime stoppers program in Canada is a community based non-profit charity supported by public fundraising. It operates in co-operation with local police and media outlets.
[6] In Ottawa, Crime Stoppers owns a website on which the Ottawa Police Service ("OPS") can post requests for information. Frequently, this takes the form of images taken from video surveillance systems when the police wish assistance in identifying the person in the video who may be suspected of a crime. Apparently, many people monitor the site and it is a very effective tool for identifying individuals captured on CCTV.
[7] The evidence filed on the motion demonstrates that the OPS have an officer who is the crime stoppers liaison and that officer is empowered to post and edit material on the Crime Stoppers' website. This is done directly by the officer uploading content to the web page. There is no need for human supervision or intervention by Crime Stoppers' volunteers or staff and the content of the post is prepared by the police officer. Crime Stoppers' role is to publicize the request for information via the [page510] website, to receive anonymous tips by telephone or by e-mail and to communicate information received from the public to the police without identifying the source.
[8] On the evening of March 19, 2016, the plaintiff came across an unattended purse on a bench at the Rideau Centre. She picked up the purse and removed it from the shopping centre subsequently leaving it with a bus driver for Société de transport de l'Outaouais ("STO"), which is the Gatineau public transit system operating buses in Ottawa and Gatineau. The purse eventually wound up at the STO lost and found in Gatineau, Quebec.
[9] On March 24, 2016, the owner of the purse who was a foreign student studying in Ottawa reported it as stolen. The purse contained her identification and her passport. The Ottawa Police began an immediate investigation and after a short delay, they obtained the surveillance video from the Rideau Centre. On the video, the owner of the purse can be seen leaving it unattended on the bench. Shortly thereafter, the plaintiff and a male companion can be seen approaching the purse, pausing and circling the bench and then the plaintiff is seen taking possession of the purse and heading for the mall exit. This occurred at about 10:00 p.m. at a time when the stores were closed.
[10] Once the video was retrieved, the police service was able to extract a still image and the officer responsible for crime stoppers liaison posted it to the website. It was accompanied by a caption which read "Ottawa: Purse Snatching in Downtown Mall". The text read that "on Saturday March 19th at approximately 10:00pm a female suspect stole a purse while walking through the Rideau Centre". It went on to describe the purse and then to request information. "If you know the identity of the suspects or other criminal activity call Crime Stoppers . . .".
[11] The information was posted to the website on April 6, 2016. It was remarkably effective. Apparently, the plaintiff and several of the clients at the agency where she worked immediately identified her in the screen shot. According to the plaintiff's evidence, this resulted in her being suspended from her job and she immediately consulted counsel. On April 7, her then solicitor, Martin Reesink, sent a letter to Crime Stoppers by fax and by registered mail advising that his client had picked up the purse as a "good Samaritan" and turned it in to the STO. He advised that the purse was at the STO lost and found. He also put Crime Stoppers on notice that his client considered the post on the website to be defamatory and demanded it be removed. He threatened to commence a lawsuit if the photo and accompanying text was not removed by April 13, 2016. [page511]
[12] For reasons that cannot be adequately explored on the motion, there was a delay between the receipt of this letter and action by either Crime Stoppers or the police. It will be Crime Stoppers' evidence that they did not see the fax and did not pick up the mail immediately. In the interim, the owner of the purse retrieved it from the lost and found office and advised the police she was not interested in pressing charges. On April 15, 2016, the posting was removed from the website and Ms. Tugwell, a representative of Crime Stoppers advised Mr. Reesink of that fact by e-mail. In response, Mr. Reesink thanked Ms. Tugwell and advised that "no further proceedings will occur on this".
[13] That was not the end of the situation. On May 25, 2016, the plaintiff herself contacted Crime Stoppers to advise that the experience had been traumatic for her, had deeply tarnished her reputation, that she had suffered discrimination and suspension at her work place, and was now on medical leave. She indicated she was seeking compensation.
[14] On June 30, 2016, she commenced this action against Crime Stoppers. On November 3, 2016, she amended the claim and to add the Ottawa Police Services Board as a party defendant.
[15] The matter has now proceeded through production and discovery and has been listed for trial. The defendants take the position that a trial is not necessary because the plaintiff's action cannot succeed. They ask that it be dismissed.
The Law of Defamation
[16] The law of defamation is complex and seeks to balance the interests of society in protecting individuals from unjustified assaults on their reputation against the constitutionally protected right of freedom of speech. Shaped by common law and statute, there are nuanced but significant differences in the law in various jurisdictions. In 2009, the Supreme Court of Canada revisited and revised the common law as it applies in most of Canada in the Torstar decision. 1 The governing statute in Ontario is the provincial Libel and Slander Act 2 but the Act is not a complete code. The statute must be read together with common law principles.
[17] In the case at bar, the law to be concerned with is libel law. Whereas slander concerns the spoken word, defamation by means of publishing words or images is libel. In Canada, libel is [page512] established if the plaintiff can prove three things. First, the words must be defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person. Generally, words suggesting a person is guilty of a criminal act will easily meet this test. Second, it must be shown that the defamatory words referred to the plaintiff. Here that is clear. Third, the defamatory words must have been "published". This means that they were communicated to at least one person other than the plaintiff. Publication on a website would easily meet this test. 3
[18] Under Canadian law, if these elements are established then the libel is complete. This means the words are presumed to be untrue and the plaintiff is presumed to have suffered damage. In this sense it is a tort of strict liability. In this regard, Canadian libel law is different from the law of slander and different from libel law in the United States. While recognizing that these presumptions have been the subject of criticism, the Supreme Court reaffirmed this statement of the law in the Torstar decision. 4 What is significant is that the plaintiff need not prove the statements are false nor that she sustained damage. If the elements of the tort are established, the onus then shifts to the defendants to advance a defence in order to escape liability.
[19] There are eight recognized defences in defamation actions. 5 They are as follows:
(a) Truth or "Justification". The defendant may prove that the words published were justified because they are factually accurate and substantially true.
(b) Absolute Privilege. Anything said or written in Parliament, in court or in a complaint to a regulatory body cannot be defamatory because it is cloaked with immunity.
(c) Statutory Privilege. Section 3 of the Libel and Slander Act protects broadcasts or publication of fair and accurate reports of certain public meetings and proceedings. Such reports are protected unless the publication is made with malice and provided the statutory conditions are met. [page513]
(d) Qualified Privilege. This exists in the absence of malice when the person communicating the information had a duty or legitimate interest in communicating the information to the person who received it and the person who received it had a corresponding duty or interest in receiving it.
(e) Public Interest Responsible Communication. This is the new defence articulated by the Supreme Court in Torstar. Publishers are protected if they have acted responsibly by taking reasonable steps to ascertain the reliability of the information and if the information relates to a matter of public interest.
(f) Fair Comment. Comments made without malice, based on fact, recognizable as comment and fairly made on a matter of public interest are protected.
(g) Consent. While seldom a factor, this is a recognized defence. If the plaintiff explicitly or implicitly agreed to the publication of the libel, this is a defence.
(h) Statutory Bar. Examples of statutory bars are limitation periods, statutory notice requirements, preconditions to suing or provisions providing that retraction in a specified manner limits the plaintiff's damages.
[20] To this list may be added the "innocent dissemination" defence which relieves booksellers, libraries, news vendors and Internet service providers of liability for dissemination of libellous content that they were unaware of. This defence was recognized by the Supreme Court in Crookes v. Newton. As stated by the court, "'subordinate' distributors may escape liability by showing that they 'have no actual knowledge of an alleged libel, are aware of no circumstances to put them on notice to suspect a libel, and committed no negligence in failing to find out about the libel'" and "some acts are so passive that they should not be held to be publication". 6
Negligent Injury to Reputation
[21] Besides claiming defamation, the plaintiff has pleaded in negligence. Negligent publication leading to reputational damage and economic loss is actionable in Canada even if the words published would not meet the tests for defamation. This does not [page514] mean that a plaintiff can simply ignore the technicalities of defamation law and "dress up a defamation action as negligence" but concurrent or alternative liability is possible.
[22] For a claim in negligence to succeed, the plaintiff must prove a duty of care rooted in the facts of proximity and foreseeability. As with any negligence claim, the plaintiff must then prove that the defendant's actions were careless and fell below a standard of reasonable care. Finally, the plaintiff must prove actual damages that have an economic component beyond simple harm to his or her reputation.
[23] In Young v. Bella, 7 the Supreme Court upheld a finding of negligence. Specifically, the court held that a duty of care will be established when there is a relationship of sufficient proximity and in which negative consequences of a careless statement are foreseeable. If proximity and foreseeability are established and the damages cover more than just damage to reputation, a negligence claim is possible.
[24] In that case, a university professor had unreasonably concluded that the plaintiff had been guilty of child abuse and without investigating the basis for this conclusion, the plaintiff had been "red flagged" as unsuitable for social work and was stigmatized. The Supreme Court upheld the finding of liability for negligence and the award for loss of income.
Analysis
[25] There can be little doubt that the combination of the plaintiff's image along with the title "purse snatching" and identification of the person in the photograph as a suspect who "stole a purse" is capable of a defamatory meaning. A properly instructed jury could conclude that notwithstanding the description of the plaintiff as a "suspect", the phrase "suspect stole a purse" conveyed the impression that the plaintiff was guilty of a criminal offence. In conjunction with the term "purse snatching" the jury could conclude that the words implied that the plaintiff was involved in robbery with a level of violence, threat or intimidation.
[26] It is also undeniable that the defendants published the image and the text. The police composed the message and posted it. Crime Stoppers hosted the web page and disseminated it by way of the Internet, thus publishing the notice. These are the three principle components of the tort of libel. A properly instructed jury could find liability in these circumstances. [page515]
[27] If summary judgment is to be granted on the facts of this case, it can only be because one or both of the defendants has an absolute defence which makes it impossible for the plaintiff to succeed. Various defences have been pleaded. If any one of them is a complete bar to the action, and that can be determined without a trial, that will suffice for the purpose of summary judgment.
[28] Though their defences overlap, the parties stand in different positions. Both brought motions for summary judgment. I will briefly analyze the key defences and whether or not the moving party has established a basis for judgment without a trial.
The police defendant
[29] The police defendant has pleaded justification or truth. That defence is not suitable for summary judgment on the facts of this case since it would require nuanced evidentiary evaluation and assessments of credibility. To prove the truth of an allegation of "theft", the police defendant will have to prove intent by the plaintiff to deprive the owner of the purse. The video evidence might be used to infer intent but is obviously not determinative. "Purse snatching" is not a defined criminal offence but as discussed above, it arguably means something more akin to robbery than theft. Proving that allegation is "true" requires the court to determine how a reasonably well informed member of the public would interpret the allegation. Ultimately during argument, it was conceded that this is a genuine issue requiring a trial.
[30] The police also rely on the defence of qualified privilege or public interest responsible communication. As the Supreme Court discussed in Torstar, supra, the defence of qualified privilege has always been complicated by the necessity of a reciprocal relationship. Examples of when it applies have been reference letters written by previous employers, reports to regulatory authorities by physicians and reports of crimes to the police. 8 The courts were reluctant to recognize the privilege as covering communication to the public at large and for that reason it had been generally unavailable to the press. 9 This led to the development of the defence of public interest responsible communication as a new defence and not merely an extension of qualified privilege.
[31] It remains arguable that a communication by the police for the purpose of recovering lost or stolen property and for the purpose of identifying suspects and other persons of interest [page516] relating to crimes is an occasion of qualified privilege. Whether it is an occasion of privilege is a question of law to be determined by the judge but that assessment also requires findings of fact. In addition, there are potential findings which must be made by the trier of fact and which weaken the availability of this defence.
[32] The qualified privilege is narrowly confined and if the communication contains defamatory language that is unnecessary to the purpose of the communication, it will be found to have exceeded the limits of the duty to inform. 10 Arguably, sensationalizing the request for information with the headline "purse snatching" and asserting that the suspect "stole" the purse is not reasonably appropriate to the purpose of the communication. The assessment of whether the communication was excessive for the purpose is intertwined with the question of whether or not the words are defamatory in their ordinary meaning. And that is the province of the jury. The defence remains available but success is not sufficiently clear as to make summary judgment appropriate.
[33] Public interest responsible communication as articulated by the Supreme Court in Torstar was primarily focused on providing protection for the media and balancing Canadian Charter of Rights and Freedoms values of freedom of speech with protection of reputation and individual privacy. The court specifically found however that the "new defence is 'available to anyone who publishes material of public interest in any medium'". 11 Whether "anyone" was intended just to refer to "new media" or to include public authorities such as the police is unclear when that quote is read in context. For purposes of this motion, however, I view the activity of the police in utilizing the Crime Stoppers website as "publishing" and in my view the publication of the notice could well be protected as it was clearly communication on a matter of public importance and interest.
[34] The problem with granting summary judgment on this question is once again the problem of proportionality and purpose. No doubt communicating the loss of the purse and seeking identification of the plaintiff who was captured taking the purse is a matter of public interest. Both recovering missing property and investigating apparent crimes are objectives worthy of protection. But the new defence is specifically subject to a requirement of reasonable conduct. The publication must be "responsible" having [page517] regard to a number of factors including whether or not the defamatory statement was justifiable, whether any effort was made to determine the other side of the story and whether the communication was sensationalized.
[35] Conduct, diligence and appropriate concern for the presumption of innocence are the same questions inherent in the plea of negligence. They cannot be resolved satisfactorily on the affidavit evidence.
[36] I want it to be clear that I am neither finding nor determining that the police response to the video recording was unreasonable. The police drew the conclusion that the security video had captured the theft of the purse. That conclusion may have been reasonable with the only facts at their disposal at the time. If the property was to be recovered, there was a need to act quickly. The fact that the strategy of using Crime Stoppers was almost instantly successful in achieving a positive outcome for the owner of the purse should not be ignored. It was necessary to identify the plaintiff in order to find out where the purse was and this might never have occurred if the information was not published and widely publicized. The issue of course is whether in disseminating the request for information, the police owed the plaintiff a duty to be more careful in the language used in the notice and if so whether they failed in that duty.
[37] I am unable to determine these nuanced questions on the basis of the affidavit evidence and to rule conclusively that the police come within one of these defences. While the application of statutory defences is a question of law, the underlying facts must be established to determine if the defences apply.
[38] If factual findings are to be made on a summary judgment motion, particularly in the face of a jury notice, summary judgment should only be granted if the evidence is such that no reasonable jury properly instructed could find for the plaintiff. That is not the case with regard to the conduct of the police.
[39] Both the defamation claim and the negligence claim may proceed to trial.
The Crime Stoppers defendant
[40] Crime Stoppers cannot rely on the innocent dissemination defence. Although it is factually accurate that Crime Stoppers was unaware of the content posted on its website until after the complaint was made, Crime Stoppers is not a passive actor like an Internet service provider. Crime Stoppers provides the website for the specific purpose of permitting the police to publish such notices. It is actively involved in identifying suspects and passing useful "tips" to the police. [page518]
[41] In carrying out this function, Crime Stoppers grants access to a website it has established and which it funds and promotes. The organization has chosen not to review the content of notices but it would be within its power to do so. The organization could not meet the test of being a mere conduit in the manner of a telecommunications provider. Assuming a jury finds the content of the posting to be defamatory, it could readily determine that Crime Stoppers is a "publisher".
[42] Similar to the police, Crime Stoppers may be able to rely upon the public interest responsible communication defence. As discussed above, one of the criteria for relying on this defence is that the publisher must have taken reasonable measures to ensure the accuracy of the material it published. The evidence is it took no such measures. The question would be whether or not it is reasonable under the circumstances to rely on the police to post only non-defamatory material. This is also a component of the defence to the negligence claim which I discuss below.
[43] Crime Stoppers also takes the position that the posting to the website is not defamatory because it cannot be defamatory to accurately state that a person has been implicated in a criminal investigation. This is similar to the "justification" defence advanced by the police and suffers from the same flaw. If the ordinary meaning of the words "purse snatching" and "stole" are inaccurate and defamatory then they may not be accurate. The nuanced question is whether they are substantially accurate or whether they are unnecessarily sensationalized. As discussed, this will depend upon the weight attached to the term "purse snatching" amongst other factors.
[44] Regardless of whether the above defences can be determined on a summary judgment motion, the principal defence advanced by Crime Stoppers is statutory. This is a point that can be determined on this motion.
[45] It is the position of Crime Stoppers that in publishing police notices, it relies upon the police entirely and it enjoys immunity pursuant to s. 3(3) of the Libel and Slander Act. Absent malice, it argues, it is not defamatory to publish a fair and accurate synopsis in a broadcast of a notice issued for the information of the public by a public authority.
[46] I agree with this proposition. On the evidence, the publication by Crime Stoppers is "a fair and accurate synopsis" of a "bulletin, notice or other document issued for the information of the public by . . . a public authority in Canada". As malice is not alleged and there is no evidence of malice, Crime Stoppers falls under the protection of the Act. [page519]
[47] This is a "show stopper". Statutory immunity means that Crime Stoppers cannot be liable for defamation on the facts of this case. Partial summary judgment is therefore appropriate.
[48] The negligence claim is in a different category. In my view by operating the website, there may well be a duty of care to members of the public who may be wrongfully identified as suspected criminals. Whether such a duty should be imposed requires a proper Anns/Cooper analysis. 12 On the facts of this case, such an analysis cannot be appropriately conducted on the basis of the summary judgment motion material.
[49] Consequently, while there will be an order dismissing the defamation action against Crime Stoppers, the negligence action may continue.
Conclusion
[50] In conclusion, the motion for summary judgment by the Ottawa Police Services Board is dismissed.
[51] The motion for summary judgment by Crime Stoppers is granted in part. The claim in defamation shall be dismissed. The claim in negligence may continue.
[52] I would be remiss if I did not end my decision with a word of caution for the plaintiff. Surviving a summary judgment motion is not a guarantee of success at trial. The plaintiff must still convince the trier of fact that the words published were in fact defamatory. She is still faced with the defences of justification, qualified privilege and responsible communication. This decision does not conclude that those defences cannot succeed only that it is premature to determine that they will succeed and therefore a trial is not necessary.
[53] With respect to negligence, the plaintiff has the burden of proving all of the elements necessary to a successful negligence claim including liability and damages. She has the additional burden of demonstrating that the negligence claim is not just a defamation action "dressed up". That requires her to prove a causal link to damages beyond mere reputational damage.
[54] Even in libel, though damage to reputation will be presumed and will carry with it entitlement to damages, such damages are often nominal in the absence of proof of special damages. The plaintiff has a heavy burden in persuading the trier of fact that subsequent events leading to loss of employment and career opportunities flow from this publication. [page520]
[55] Careful consideration is therefore required concerning the economics of proceeding to trial. All parties should at this point be carefully considering the risks and engaging in a cost benefit analysis. I encourage the exchange of offers to settle and I urge all parties to read Rule 49 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 with some care.
[56] Finally, I express no views on the adequacy of the pleadings as the motion was not argued on that basis.
Costs
[57] I have not heard submissions on costs. One of the defendants was partially successful while the other was unsuccessful. I suggest the parties take two weeks to discuss an appropriate order but if they cannot agree they may contact my office for further direction.
Crime Stoppers' motion being granted in part; police motion being dismissed.
Notes
1 Grant v. Torstar Corp., [2009] 3 S.C.R. 640 and Cusson v. Quan (2009), 102 O.R. (3d) 480, [2009] 3 S.C.R. 712, released simultaneously.
2 R.S.O. 1990, c. L.12, as amended.
3 See Crookes v. Newton, [2011] 3 S.C.R. 269.
4 See Grant v. Torstar, supra, at para. 28.
5 See Peter A. Downard, Libel, 2nd ed. (Markham, Ont.: LexisNexis, 2010), pp. 4-7. See, also, Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 10th ed. (Toronto: LexisNexis, 2015), pp. 616-846.
6 Note 3, above, at paras. 20 and 21.
7 See Young v. Bella, [2006] 1 S.C.R. 108.
8 Torstar, supra, para. 93.
9 Torstar, at paras. 34-37.
10 Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3.
11 Torstar, at para. 96.
12 Cooper v. Hobart, [2001] 3 S.C.R. 537.
