The Supreme Court of Canada recently handed down two landmark decisions in defamation cases in which it recognized the defence of responsible communication on matters of public interest in Canadian common law.  In these two decisions, the Court was once again called upon to reconcile the conflicting values of freedom of expression and the protection of reputation.

In the first case, Grant v. Torstar Corp.,[1] Peter Grant and his company Grant Forest Products Inc. ("Grant") sued the Toronto Star and other related parties (the "Star") in defamation following the publication of an article concerning plans to expand the private golf course located on Grant's property.  The article reported the views of local residents who opposed the project, arguing that it would have a harmful environmental impact.  The residents also argued that Grant was exercising his influence to secure the required government approval for his project.

At trial, the jury rejected the defences put forth by the Star and awarded Grant $1,475,000 in damages.  The Court of Appeal, however, concluded that the instructions given to the jury were flawed and ordered a new trial.

On appeal before the Supreme Court, the principal issue was the scope of protection afforded to factual statements published in the public interest.  After reviewing the traditional defences available to defendants sued in defamation as well as the solutions available in other jurisdictions, the Court recognized the existence of an additional defence intended to protect publishers that acted responsibly in attempting to verify the information communicated on a matter of public interest.  In such circumstances, the right to freedom of expression takes precedence over the right to protection of one's reputation.

Two essential elements must be satisfied for the defence to apply: 1) the publication must be on a matter of public interest, and 2) the defendant must establish that the communication was responsible, that is, that it was diligent in trying to verify the allegation, having regard to the relevant factors.  While the first element will be determined by the judge, the second will be decided by the jury.  According to the concurring reasons of Justice Abella, the analysis of both elements should be conducted by the judge.

In order for a publication to be on a matter of public interest, some segment of the population must have a genuine interest in receiving information on the subject.  To determine whether a communication was responsibly made, several factors must be considered, namely 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, and 7) whether the defamatory statement’s public interest lies in the fact that it was made rather than its truth (“reportage”).  This last factor specifically concerns statements that are reported by a third person.  The public interest in such statements lies in the fact that they were made rather than in their truth or falsity.  A third person may report such statements on condition that the report attributes the statements to someone, indicates that their truth has not been verified, sets out both sides of the dispute fairly, and provides the context in which the statements were made.  The list of factors to consider in determining whether a communication was responsibly made is not exhaustive.

In view of the foregoing, the Court affirmed the order for a new trial.

In the second case, Quan v. Cusson,[2] the plaintiff Danno Cusson ("Cusson") sued the Ottawa Citizen and other related parties (the "Citizen") in defamation following the publication of three articles.  The articles concerned Cusson's involvement in rescue operations related to the events of September 11, 2001.  More particularly, the articles reported that Cusson had misrepresented himself to the authorities in New York as a fully trained K‑9 handler with the RCMP and possibly interfered with the rescue operation and that disciplinary action was pending against him.

At trial, the judge concluded that the article concerning the pending disciplinary action was protected by the defence of qualified privilege.  With respect to the two other articles, the jury found that several allegations had not been proven and awarded $100,000 in damages against the Citizen.  On appeal, the Court recognized the existence of the new defence based on reasonable communication, but concluded that it would be unjust to allow the Citizen to invoke this new defence and thereby obtain a second try.  The Citizen then appealed to the Supreme Court.

Reiterating the principles set out in Grant, the Supreme Court concluded that the Citizen was entitled to avail itself of the new defence of responsible communication on matters of public interest.  The Court held that the criteria of public interest was satisfied in view of the fact that the Canadian population has a vital interest in knowing about the professional misdeeds of those who are entrusted by the state with protecting public safety.  It therefore ordered a new trial so that the Citizen could raise the new defence of responsible communication on matters of public interest and so that a jury could decide the issue.

The Grant and Quan decisions will surely have a considerable impact in the Canadian common law provinces in view of the limited defences that were available until now in defamation cases.  Although these decisions apply common law principles, the criteria set out by the Supreme Court of Canada are likely to resonate with Quebec civil law and will serve, at the very least, as guidelines in defamation cases.

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