ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 06-CV-310261PD2
DATE: 20150716
BETWEEN:
RANJIT KUMAR CHANDRA
Plaintiff
– and –
CANADIAN BROADCASTING CORPORATION, CHRIS O’NEILL-YATES, CATHERINE MCISAACS, LYNN BURGESS, JACK STRAWBRIDGE and MEMORIAL UNIVERSITY OF NEWFOUNDLAND
Defendants
Richard Bennett and Joseph Figliomeni, for the Plaintiff
Christine Lonsdale and Elder Marques, for the Defendants CBC, O’Neill-Yates, McIsaacs and Burgess
HEARD: 15 July 2015
mew j. (orally)
[1] At the conclusion of 50 plus days of evidence of trial, I heard a number of motions, two of which involve whether the defences of fair comment and responsible journalism should respectively be put to the jury.
[2] In this action, the plaintiff seeks damages for libel allegedly arising from a news segment entitled “The Secret Life of Dr. Chandra,” which was broadcast on CBC television on the 30th and 31st of January and the 1st of February 2006. The plaintiff who at certain times material to this action was a professor at Memorial University of Newfoundland alleges that the broadcast was malicious, false and libelous of him personally and in the way of his calling as a professor and a scientist. The CBC and certain individuals employed by the CBC who were associated with this broadcast and who have been referred to throughout the trial as the “CBC defendants” raise in response to the plaintiff’s action what I might call the usual defences, namely those of justification, fair comment to the extent that the words complained of were matters of comment or expressions of opinion, and the defence of responsible communication. The defence of qualified privilege was also pleaded, but that defence is no longer being maintained as we go into the closing stages of the trial.
[3] Essentially, the plaintiff takes the position that the evidence is insufficient to justify the defences of fair comment and responsible communication being put to the jury.
[4] For the reasons that follow, I do not accept the premise of the plaintiff’s motion, and the matters raised with respect to the tenability or otherwise of the CBC’s defences should in my view be put to the jury.
[5] Let me first outline the positions taken by the parties with respect to the motions that were argued.
[6] Dr. Chandra asked me to rule that the defence of fair comment should not go to the jury. His position is that the defendants are required to establish two things. Firstly, that the comment is fair, and secondly, that the person making the comment must honestly believe the comment to be true. Dr. Chandra points to the test of a fair comment contained in WIC Radio Limited v. Simpson 2008 SCC 40, and in particular paragraph 28 of that decision. Counsel took me through several of the paragraphs of the WIC Radio decision to support his argument that, what he described as the shifting onus, requires the CBC to first prove the elements of the defence before the onus shifts back to the plaintiff to show malice. Dr. Chandra argues, essentially, that the CBC cannot make out the elements of the defence of fair comment. Indeed, Dr. Chandra argues that the CBC did act with malice, and counsel and the plaintiff took me through a number of examples of malice that he said had arisen during the trial.
[7] As for the defence of responsible communication, Dr. Chandra argued that the CBC acted irresponsibly and cannot rely on the defence of responsible communication. Accordingly, that defence too, it is argued, should not be put to the jury. Dr. Chandra points to the test for the defence of responsible communication formulated by the Supreme Court of Canada in Grant v. Torstar Corporation 2009 SCC 61 at paragraph 126. I was taken through each of the elements of the defence. The first element, that the publication must be a matter of public interest, has been conceded by the parties to apply in this case. Dr. Chandra then goes through the various factors identified by the Court that can aid in determining whether a defamatory communication was responsibly made. At this point I will not reiterate the separate arguments on each of the factors because as I have concluded, it is a matter for the jury to decide. Dr. Chandra points out that the malice in the defence of responsible communication does not require separate inquiry because if the person making the statement acted with malice then he or she or it has not acted responsibly.
[8] The CBC argues that the test for whether a defence is to be put to the jury is whether there is a basis in evidence for the defence. The CBC points to two important, indeed counsel described them as critical, concessions. Firstly, all of the words in the impugned broadcast are conceded to be either fact or comment, and secondly, the broadcast is on a matter of public interest. CBC submits that parsing through the evidence to determine whether the defence is made out should be a matter for the jury. It is the CBC’s position that there is sufficient evidence of both the defence of fair comment and the defence of responsible journalism for those defences to be put to the jury. CBC argues that Dr. Chandra has misconstrued the law and the basis for the defence of fair comment. According to the CBC the defence of fair comment no longer requires the comment to be “fair,” and that the “honest belief” is an objective test from the perspective of any person, not the CBC. CBC argues that the court in WIC Radio clarified that the comment does not have to be fair, that it is no longer part of the test. Moreover, CBC argues that the submissions Dr. Chandra made with respect to honest belief are inconsistent with the test as set out in WIC Radio. The objective test is whether any person could honestly express that opinion on the proved facts, and not, as Dr. Chandra suggests, whether CBC honestly believes the opinions that were expressed.
[9] For the first part of the test, CBC submits that the determination of the judge of whether it is a matter of public interest is focused on the substance of the publication and not the occasion. And CBC reiterates that it is not for the judge to look into the evidence to determine what should or should not have been included in the broadcast. That is a matter for the jury. CBC argues that there is an ample evidentiary record to support the defence of responsible communication including, but limited to, many attempts to contact and interview Dr. Chandra, the use of numerous sources, the use of public information, the interviews of many people who offered different perspectives, the withholding of further potentially damaging information from the broadcast, and efforts made to highlight good things as well as negative things of Dr. Chandra in the broadcast. CBC argues that malice is not a separate inquiry in the context of responsible communication, but is built into the defence.
[10] I hope that summary does some justice to the very careful and comprehensive submissions that were made by the parties.
[11] Turning then to the applicable legal principles.
[12] With respect to fair comment, the test is found at paragraph 28 of WIC Radio. And paraphrasing slightly, the test is as follows: a) the comment must be on a matter of public interest; b) the comment must be based on fact; c) the comment, though it can include inferences of fact, must be recognizable as comment; d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts; e) even though the comment satisfies the objective test, the defence can be defeated if the Plaintiff proves that the defendant was subjectively actuated by expressed malice. “Subjectively” is my insertion into the words that are used in paragraph 28 of WIC Radio, but which I think fairly reflects the narrative about malice that follows.
[13] The Supreme Court approved of the sequence in which the trial judge in WIC Radio had dealt with the issues for the defence of fair comment, and that sequence is found in paragraphs 54 to 63 of the decision, and is as follows:
a) What is the defamatory meaning of the words complained of and therefore context?
b) Do the words complained of relate to a matter of public interest?
c) Are the words and their defamatory meaning more likely to be understood in context as comment rather than fact?
d) Are the facts relating to the comment substantially true or privileged?
e) Did the defendant satisfy the honest belief requirement? That is, answering affirmative to the question of whether any person could honestly express that opinion on the proved facts? and
f) Has the plaintiff proved sufficient malice on the defendant’s part to negative or defeat the defence?
[14] The test for whether a defence of fair comment should be put to a jury is articulated in the decision of Mr. Justice Morden in Boland v. The Globe and Mail 1961 162 (ON CA), [1961] O.R. 712 (C.A.), a decision of the Ontario Court of Appeal in which his Lordship stated:
“If the judge decides that there is no evidence upon the issues of fair comment or malice which is fit to be left to the jury, he will dismiss the action. On the other hand, if there is some evidence upon either or both of these issues, then the issue or issues upon which there is evidence will be left to the jury. The trial judge should remove from the jury’s consideration the issue upon which there is no evidence or insufficient evidence.”
[15] Turning then to the law as it pertains to responsible communication. The test is articulated in paragraph 126 of Grant v. Torstar. The defence will apply where:
a) The publication is on a matter of public interest; and
b) The publisher was diligent in trying to verify the allegation, having regard to:
i. The seriousness of the allegation;
ii. The public importance of the matter;
iii. The urgency of the matter;
iv. The status and reliability of the source;
v. Whether the plaintiff side of the story was sought and accurately reported;
vi. Whether the inclusion of the defamatory statement was justifiable;
vii. Whether the defamatory statement’s public interest lay in the fact that it was made rather than it’s truth, so called reportage; and
viii. Any other relevant circumstances.
[16] At paragraphs 100 and 101 of its decision, the Supreme Court in Grant discussed the role of the judge in determining whether a publication is on a matter of public interest in these terms. Starting at paragraph 100:
“That is a matter for the judge to decide. To be sure, whether a statement’s publication is in the public interest involves factual issues, but it is primarily a question of law. The judge is asked to determine whether the nature of the statement is such that the protection may be warranted in the public interest. The judge acts as a gatekeeper, analogous to the traditional function of the judge in determining whether an “occasion” is subject to privilege. Unlike privilege, however, the determination of whether a statement relates to a matter of public interest focuses on the substance of the publication itself and not the “occasion”. Where the question is whether a particular communication fits within a recognized subject matter of public interest is a mixed question of fact and law, and will therefore attract more deference on appeal than will appear determination of public interest, but it properly remains a question for the trial judge as opposed to the jury.”
“In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole. The defamatory statement should not be scrutinized in isolation. The judge’s role at this point is to determine whether the subject matter of the communication as a whole is one of public interest. If it is and if the evidence is legally capable of supporting the defence, as I will explain below, the judge should put the case to the jury for the ultimate determination of responsibility.”
[17] And then at paragraph 128 the court in Grant discusses the role of the judge versus the role of jury in these terms:
“The judge decides whether the statement relates to a matter of public interest. If public interest is shown, the jury decides whether on the evidence the defence is established having regard to all relevant factors including the justification for including defamatory statements in the article.”
[18] So having regard to all of that, what it comes down to, it seems to me, is this.
[19] Firstly, as the trial judge I serve a gatekeeper role in determining whether there is a sufficient basis for either of these defences to go to the jury. This is a legal determination that I am required to make. The issue of whether a comment or a statement is a matter of public interest would ordinarily be a matter upon which I would be required to rule. My task is made somewhat easier in this case because counsel for both parties concede that the subject matter of the comment or statement is a matter of public interest.
[20] The test in Boland requires me to exercise my gatekeeper role by determining whether there is any evidence upon which the jury could conclude that the defence is made out. If there is such evidence, then the question goes to the jury.
[21] The fact that there may be all sorts of evidence which supports the position taken by the plaintiff does not mean that the matter does not go to the jury, provided that there is evidence upon which the jury could conclude that the defence is made out. Whether or not they accept the positions taken by the CBC defendants or the plaintiff respectively is properly a matter for the jury. In this case, there is in my view more than sufficient evidence for both the defence of fair comment and the defence of responsible communication to be put to the jury. The plaintiff’s request that I not put those matters to the jury is therefore dismissed.
Graeme Mew J.
Delivered: 16 July 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RANJIT KUMAR CHANDRA
Plaintiff
– and –
CANADIAN BROADCASTING CORPORATION, CHRIS O’NEILL-YATES, CATHERINE MCISAACS, LYNN BURGESS, JACK STRAWBRIDGE and MEMORIAL UNIVERSITY OF NEWFOUNDLAND
Defendants
ORAL REASONS FOR JUDGMENT
Mew J.
Delivered: 16 July 2015