DATE: 20040625

DOCKET: C40291

COURT OF APPEAL FOR ONTARIO

RE: MARC GAUTHIER, PETER DUNCAN and ANDREW CLARKE (Plaintiffs/Appellants) – and – TORONTO STAR NEWSPAPERS LIMITED, TORSTAR CORPORATION, JOHN HONDERICH, MARY DEANNE SHEARS, ROBERT HEPBURN, JIM RANKIN, JENNIFER QUINN, MICHELLE SHEPPARD, SCOTT SIMMIE, JOHN DUNCANSON, BETSY POWELL, LESLIE PAPP, GREG SMITH, ANDREA HALL, MATTHEW COLE and JONATHAN FERGUSON (Defendants/Respondents)

BEFORE: ARMSTRONG, BLAIR and JURIANSZ JJ.A.

COUNSEL: Timothy S.B. Danson and Peter T.J. Danson for the appellants Alison B. Woodbury and Tony S.K. Wong for the respondents

HEARD: June 22, 2004

On appeal from the judgment of Justice Maurice Cullity of the Superior Court of Justice dated June 24, 2003.

E N D O R S E M E N T

[1] As the motions judge pointed out the question before the court is not whether the statements made in the Toronto Star articles are true, false, fair comment or, as counsel for the plaintiff suggests, a sensational exploitation of junk science. We have no doubt that the many police officers who carry out their duties professionally and abhor racism regard the allegations as offensive and are concerned about the consequences to their reputations and relationships in the community; however, that is not the issue before us either.

[1] The law is well settled that an action for defamation is a personal tort based on injury to one’s own reputation. A plaintiff in a defamation action must show that the publication complained of is reasonably capable of referring to him or her. The only question before this court is whether it is plain and obvious that the plaintiffs cannot succeed in showing that the articles complained of could reasonably be understood to refer to them as individuals or to any other particular member of the Toronto Police Service. The appellants urged us to adopt the “intensity of suspicion” test discussed in Butler v. Southam Inc. (2001) 2001 NSCA 121, N.S.J. No. 332 (N.S.C.A.). As Cromwell J.A. noted in that case “this ‘intensity of suspicion’ approach is consistent with Lord Porter’s speech in Knupffer and does not describe some new or different test” (para. 59). We agree.

[2] The articles complained of use general language such as “police” or “Toronto Police” and are about systemic racism. The articles do not name or identify any particular police officer. It is plain and obvious to us that the articles read all together, or individually, are not capable of being reasonably understood to suggest that each individual member of the Toronto Police is “racist” or engages in “racial profiling”. The motions judge conducted a careful analysis of the legal issues advanced by the appellants and rejected them. We agree substantially with his reasons and consequently this appeal must be dismissed

[3] We see no reason why costs should not follow the event before the motions judge. The plaintiffs’ appeal of the motions judge’s costs order is also dismissed.

[4] The respondents are entitled to their costs of the appeal on a partial indemnity basis fixed in the amount $15,000 inclusive of disbursements and GST.

“R.P. Armstrong J.A.”

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”