Grant v Torstar Corp: Responsible communication on matters of public interest

On December 22, 2009, the Supreme Court of Canada (“SCC”) issued its judgment in Grant v Torstar Corp, [2009] 3 SCR 640 [Grant v Torstar] establishing a new “responsible communication” defence to the tort of defamation. Much has already been said about the decision in media and journalistic circles and the decision has been hailed as a win for public interest journalism and freedom of press (see ie. “Supreme Court enables ‘productive debate’ in Canada“; “News Media Given Wider Protection,” The Montreal Gazette (23 Dec 2009); and “Rewriting our libel laws“).

Chief Justice McLachlin wrote the majority decision representing eight of the nine members in coram. Justice Abella wrote a brief concurring opinion while mostly agreeing with the majority’s reasoning. Regarding the current state of the law (the old law) McLachlin CJC noted as follows:

I conclude that the current law with respect to statements that are reliable and important to public debate does not give adequate weight to the constitutional value of free expression. While the law must protect reputation, the level of protection currently accorded by the law – in effect a regime of strict liability – is not justifiable. The law of defamation currently accords no protection for statements on matters of public interest published to the world at large if they cannot, for whatever reason, be proven to be true (para 65).

Background
Grant v Torstar involved a defamation suit filed by Peter Grant against the Toronto Star, arising out of a 23 June 2001 article regarding a proposed private golf course development on Grant’s estate. The article included interviews with various neighbours who were critical of the development and suspected that Grant was using his political influence to get his proposals passed. The key quotation at issue in the defamation suit was one neighbour’s comment that “Everyone thinks it’s a done deal because of Grant’s influence — but most of all his Mike Harris ties.” Before publishing the article, the reporter Bill Schiller attempted to verify the allegations including contacting Peter Grant who chose to provide no comment. After publication of the article on 23 June, Grant filed a defamation suit against Torstar Corp.

At trial, the plaintiffs argued that the article painted Mr. Grant in negative light and accused him of improperly using his political influence. The defendants attempted to raise a novel expanded qualified privilege defence based on the concept of responsible public interest journalism. The trial judge rejected this defence and the issue went to the jury on the question of the defence of truth or the defence of fair comment. The jury rejected both defences and awarded damages to the plaintiff totalling $1.475 million.

The Ontario Court of Appeal held that the trial judge erred in not leaving the defence of responsible journalism with the jury and ordered a new trial.

The New Defence
The SCC agreed with the Court of Appeal, reaffirming the order for a new trial. The SCC held that at the new trial, the judge should instruct the jury of three possible defences that arise on the facts of this case: (i) the defence of truth/justification, (ii) the defence of fair comment, and (iii) the (new) defence of responsible communication on matters of public interest.

McLachlin CJC summarizes the new defence as follows:

A. [The judge must decide that] The publication is on a matter of public interest
and:
B. [The jury must decide that the publication was responsible. That the] publisher was diligent in trying to verify the allegation, having regard to:

1. the seriousness of the allegation;
2. the public importance of the matter;
3. the urgency of the matter;
4. the status and reliability of the source;
5. whether the plaintiff’s side of the story was sought and accurately reported;
6. whether the inclusion of the defamatory statement was justifiable;
7. whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and
8. any other relevant circumstances (para 126).

Matters of Public Interest
The first prong of this two-step framework, determination of matters of public interest, is bound to undergo considerable development in later jurisprudence. Under this step, the judge must be satisfied that the publication is on a matter of public interest. There is no static or formulaic test to determine what is of public interest. The matter must be one encompassing more than “mere curiosity or prurient interest” with the public having a “genuine stake in knowing about the matter published” (para 105).

The judge must first determine the subject matter of the publication in question. The judge should view the subject matter broadly, taking into consideration the publication as a whole (rather than focusing in on the impugned statement) (para 109). It is not necessary that the plaintiff be a public or prominent figure, nor that the communication relate to government or political matters. Many matters “ranging from science and the arts to the environment, religion, and morality” and more broadly, the democratic interest in “wide-ranging public debate” could be considered a matter of public interest (para 106).

If the publication, viewed as a whole and with its subject-matter defined broadly, raises to the level of being a matter of public interest (also defined broadly), the new defence is available. The judge must leave the defence with the jury for evaluation of the second step of the framework.

Scope
In discussing the nomenclature of the new defence, McLachlin CJC rejected the name “responsible journalism” defence because “the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists” (para 96). Quoting Lord Hoffman, McLachlin CJC held that “the new defence is available to anyone who publishes material of public interest in any medium” (para 96.).

This indicates that as long as the speech or communication in question rises to the level of being of public interest (thereby fulfilling part one of the two-part framework), it would be covered by the responsible communication defence regardless of the type, form, or mode the communication takes. As noted above, the public interest and the subject matter of the communication are also to be viewed broadly by the judge in applying step one of the framework, thereby giving an almost blanket scope to the defence.

The Role of Juries
In a short concurring opinion, Justice Abella parts with the majority’s reasoning on one point: Agreeing with the new responsible communication defence and the two-part framework set out by the majority, Justice Abella asserts that the second step should not be for the jury to decide. Determining whether “responsible” communication is established entails a complex legal analysis requiring “balancing freedom of expression, freedom of the press, the protection of reputation, privacy concerns, and the public interest” (para 143). Thus both steps of the defence are properly decided by the judge rather than the jury.

Justice Abella goes on to recognize that her formulation contradicts a historical context under which juries ought to have a primary and preeminent role in defamation cases. However, the “highly complex legal determination” and “protecting the integrity of the interests and values at stake […] takes [the defence] beyond the jury’s jurisdiction and squarely into judicial territory” (para 145).

What Is Not Covered by the New Defence?
One can envision problems that could arise under the current formulation of the test and will ultimately have to be addressed and refined by later jurisprudence. The extremely broad (almost blanket) scope of the first step of the framework (the public interest), coupled with the primary role of the jury under the second step, is problematic. McLachlin CJC cautions against too broad an approach under step one, recognizing that such an approach “might render the test a mere rubber stamp and bring unworthy material within the protection of the defence” (para 107).

However, the formulation itself, and the guidance provided in the reasons, does not place sufficient limits on defining both the subject matter of the communication and of what constitutes the public interest to ward off such a predicament. On the second step, the problems noted by Justice Abella of leaving the questions wholly with the jury are noteworthy. It is likely that the broadness of the first step will further highlight these problems associated with the second step in future cases.