Grant v Torstar Corp

The Court did not allow the defence of responsible journalism to go to the jury. As a result, the jury was left to determine whether the Star engaged in 'fair comment'. The instructions to the jury, however, stated that the defendants would be guilty if the comment would not be held by a 'fair minded' person, or alternatively, would be guilty if the defendants held an honest belief in the defamatory statements. The jury found the defendants guilty of libel, and awarded general, aggravated, and punitive damages in the amount of $1.475 million.

Torstar appealed to the Court of Appeal for Ontario. On the issue of responsible journalism, the Court of Appeal found that the trial court erred in not allowing the jury to consider the defence, and remanded the case for a new trial. The Court also found that the idea of a 'fair minded' person would need to believe in a comment was previously rejected by the court, thus the trial court did not properly instruct the jury on this issue. Finally, the Court found that the defamatory comments in the article were attributed to a resident, and unless the defendants had adopted them as their own, the defendants' 'honest belief' in them was irrelevant.

Speaking for the majority, Chief Justice McLachlin found that the defence should exist so as to not restrict speech. She found that the defence helped to strike the proper balance between rights of free expression, as protected in the Charter, and the rights of privacy and protection of reputation. She also found justification in the ruling supported by the emerging recognition given to the defence in other common law states.

First, McLachlin stated that the defence of responsible communication was a new defence, and not a modification of qualified privilege. She then ruled that defence should be known as 'responsible communication', as it is not only journalists who should benefit from the defence, but bloggers and other people who disseminate information regardless of their status in established media.

McLachlin found that two conditions must be met for the defence of responsible communication to apply:

• The matter must be one of public interest.
• The defendant must show that he acted responsibly, in that he showed diligence in attempting to verify the allegedly defamatory comments, having regard to the totality of the circumstances.

In determining whether the defendant acted responsibly, she found a court should consider:

• The seriousness of the allegation
• The public importance of the matter
• The urgency of the matter
• The status and reliability of the source
• Whether the plaintiff's side of the story was sought and accurately reported
• Whether inclusion of the defamatory statement was justifiable
• Whether the defamatory statement's public interest lay in the fact that it was made rather than its truth ("Reportage")

She noted that this list was not exhaustive, but served merely as a guideline. A court is free to consider other factors as well. As well, the factors should not all be given equal weight.

McLachlin ruled that the judge is to determine whether the matter is one of public interest. Recognizing that this may involve factual determination, she nonetheless ruled that the judge was serving as a sort of "gatekeeper" in determining whether the defence should be allowed.

The jury was left the role to determine whether a particular defamatory statement was needed to determine whether a defendant acted responsibly when he published it.

McLachlin ruled that the three defences of justification, fair comment, and responsible communication should have been left to a jury. As a result, she remanded the case for a new trial.

Justice Abella concurred in part and dissented in part. She agreed with the majority ruling that a defence of 'responsible communication' should be available in Canadian defamation law. However, she dissented as to the division of roles between the judge and the jury. In her opinion, the inquiry as to the availability of the defence was for the judge alone.