The significance of the Grant v. Torstar Corp 2009 SCC 61 (“Grant”) decision rests principally with the creation of a new defence of responsible communication on matters of public interest to a defamation cause of action.
Defamation is a common law cause of action which, according to the Canadian Encyclopedia Digest, involves:
any written, printed or spoken words or of any audible or visible matters or acts which tend to lower a person in the estimation of others or cause a person to be shunned or avoided or exposed to hatred, contempt or ridicule.
In 2009, the Supreme Court of Canada delivered a decision with respect to the defences available to rebut a defamation cause of action. In addition to the central defence issue, the court clearly articulated three (3) threshold elements that all must be satisfied by the plaintiff to obtain a judgement and damages for a defamation action. The elements being:
1) would a reasonable person’s sense of the plaintiff’s reputation be lowered as a result of the statements in question;
2) that the statements made were in fact about the plaintiff (party claiming defamation); and
3) that the statements (words) were communicated to at least one other person other than the plaintiff (i.e. they were published (publication rule)).
The standard of proof required for each of the above elements is on a balance of probabilities. If this threshold is met, there is a presumption of falsity and damage.
Mr. Grant brought an action for defamation against the Toronto Star after it published an article regarding a proposed development of a private golf course on Crown land purchased by Mr. Grant after securing the various required government approvals. The article further contained critical statements from local residents about Mr. Grant and allegations that the deal was as a result of Mr. Grant using political influence to get approval. The Toronto Star before publishing contacted Mr. Grant for a comment, who declined.
THE SUPREME COURT OF CANADA’S DECISION
Ultimately, the Court ordered a new trial, allowing the Toronto Star to put forward a defence of responsible communication on matters of public interest.
Writing for the majority, McLachin C.J.C. having consideration for the protected right of freedom of expression, held that a defence of reasonable communication exists to combat restriction of speech that are within the publics interest. The new 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:
(a) the seriousness of the allegation;
(b) the public importance of the matter;
(c) the urgency of the matter;
(d) the status and reliability of the source;
(e) whether the plaintiff’s side of the story was sought and accurately reported;
(f) whether the inclusion of the defamatory statement was justifiable;
(g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and
(h) any other relevant circumstances (para 126).
Therefore, establishing the new defence is a two-pronged process. The first step requires the judge to determine whether the matter is one of public interest. While there is no bright-lined test for what constitutes public interest, the majority stated that “[t]o be of public interest, the subject matter ‘must be shown to be one inviting public attention, or about which the public has some substantial concern’” (para 105). Although this may involve factual determinations, the Court held that this responsibility should be left to the judiciary because they are better positioned to act as gatekeepers of the availability of the new defence. Meaning, that if the publication, having consideration for the entirety of the situation and the subject-matter broadly, is judicially considered as a matter of public interest, the new defence is available.
Once the availability of the new defence is determined, the second step is left for the jury to consider. This part of the defence involves a consideration of whether the defamatory statement was responsibly made. Meaning, a jury will evaluate whether the author of the communication in question was diligent in trying to verify the statement(s). McLachlin C.J.C. articulated the non-exhaustive list (B.) for the jury to have regard to during their consideration, none of which are alone determinative, but does not require equal weight for each.
In her concurring opinion, Abella J. diverged from the majority on the issue of who should be responsible for determining the second step of the two-pronged process. While the majority left this responsibility to the jury, Abella J. suggests that determination of whether communication is responsible should be left to the judge. This second steps involves the complex balancing of protecting freedom of expression, reputation and public interest, “[w]eighing these often competing constitutional interests is a legal determination. It is, therefore, a determination that the judge should undertake.” (para 143).
Grant was one of the first Supreme Court of Canada decisions with respect to defamation that moved towards placing a greater emphasis on the protect of freedom of expression as compared to the protection of reputation. The decision has been regarded as a landmark case for journalism in Canada. However, the Court extended the availability of this defence beyond journalism “to anyone who publishes material of public interest in any medium” (para 96). The extension of the availability of the new defence is evidence that the Court recognizes and appreciates the changing methods of disseminating of information on the Internet and other media outlets. Grant effectively allows for the publication of communication that is wrong if it is a matter of public interest and it was responsibly made. With citizen journalism, social media and the 24-hour news cycle on the rise and the broadness of both steps of establishing the new defence, the extent of the limitations have yet to be fully appreciated.