Características socioeconómicas y preferencias

8Trial 2010 BCSC 804 (CanLII), Appeal, 2011 BCCA 286 (CanLII).

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Fair comment is another important defence used mostly by the media. People are enti-tled to have and to express opinions on matters of public interest; therefore, commentaries on plays, exhibitions, sports, or even on the actions of politicians and other public figures are protected. As long as the expression of opinion is commentary based on true facts known to the public—even where the opinion is unpopular and most of the public disagrees—and as long as it is a possible conclusion based on the public facts and stated without malice, it is protected. For these reasons, harsh or derisive reviews of restaurants, plays, sporting com-petitions, and the like are not actionable. Politicians are also fair game, but great care must be taken to keep the statement an expression of opinion based on known facts. If the com-mentary involves statement that is not true, it is actionable as defamation. You can con-clude that a politician’s actions were incompetent, but your statement of what happened to lead you to that conclusion had better be accurate. It is interesting that fair comment also protects political cartoons that get their messages across by exaggeration.

The Supreme Court of Canada in a recent decision⁹ made an extremely important change to the law of defamation with respect to the balance between freedom of speech and protection of reputation. The Court adopted the defence of “responsible communi-cation,” holding that so long as a publication was on a matter of public interest, was

Derogatory comments made as fair comment on public matter are protected

9Grant v. Torstar, [2009] S.C.J. No. 61.

“We condemn anti-Semitism and our members work to encourage respectful dialogue, diversity, peace and coop-eration.” She also said “I apologize for the fact that John Shavluk initially passed screening.” And also “[w]e believe in free speech but we draw the line . . . on things that are hate filled and we will never allow that to contaminate our dialogues.” Mr Shavluk sued for defamation, among other things. At trial the judge found that from the comments and press releases “the ordinary reader would conclude that Mr. Shavluk holds views that are anti-Semitic. Further, a reasonable person would understand from the press release that as a consequence of these views, Mr. Shavluk is unsuitable to hold an office of trust as a Member of Parliament.”

The judge cited the definition of defamation from Salmond and Heuston on the Law of Torts 21st ed. Based on the principle that a statement is derogatory when it injures the reputation of another, lowering them in the esteem of right thinking people the judge determined that the statement was defamatory.

The defendant offered the following defenses. Justifi-cation was not established because there was no other evidence to show that Mr. Shavluk was anti-Semitic. Fair comment was also rejected. The matter was of public interest, and there was no proof of malice, but such an opinion must be clearly based on matters of fact that the hearer of the comments are aware of. Here, it was not

clear that the comment was opinion, and, if it was, what facts the comment was an opinion about.

But both the trial judge and the Court of Appeal determined that the defence of qualified privilege did apply. This was a matter in which the public at large had an interest since it concerned qualifications of a candidate in a federal election. The case is unique—since all of the public had an interest, it could not be said to have been too broadly published. There was no proof of malice and so qualified privilege applied.

Interestingly, the court also considered the defence of

“responsible communication” on a matter of public inter-est, a defence recently established by the Supreme Court of Canada. The comments made were clearly on a matter of public interest (the qualifications of a candidate in a federal election). But the person making the comment must also show a diligent attempt to verify the correctness of the comment. In fact, given the urgency of the situa-tion, and the fact that several attempts were made to con-tact Mr. Shavluk, responsible communication turned out to be an effective defence as well. Note that the Court of Appeal upheld the defence of qualified privilege and so found no need to comment on the defence of responsible communication.

This case nicely sets out not only what constitutes defamation, but also when the major defences are—or are not—available.

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reasonable in the circumstances, and a diligent attempt was made to verify the facts, the publisher may be protected even where the comments were false and derogatory. This is now good law in all of Canada, giving journalists and others even greater protection than they enjoyed in the past. Note that in Canada the defence is not limited to journalists.

Legislation in place also limits the exposure of newspapers and other communications media by limiting the amount of damages that can be claimed by the victim if an appro-priate apology is published. Still, remember that defamatory remarks can be extremely dangerous and cause serious damage to the victim. The courts have awarded significant damages. In Hill v. Church of Scientology of Toronto,¹⁰ for example, the total damages awarded were $1.6 million, and in an Ontario case, a jury awarded $3 million to a pilot who was defamed with respect to his work and as a result lost his job and career. The latter decision was upheld by the Court of Appeal for Ontario.¹¹

Defamatory libel can also constitute a criminal offence under the Criminal Code of Canada where the published words will injure a person’s reputation by “exposing him to hatred, contempt, or ridicule.” The usual defences discussed above apply, but the truth of the defamation will only justify its publication if it is also in the public interest. Note also that extortion by defamatory libel, or the threat of it, is also an offence. Publishers can also be liable unless they can show they had no knowledge of the inclusion of the offend-ing words. In R. v. Lucas¹² a husband and a wife were charged with criminal libel when

Responsible communication defence gives journalists greater protection

Libel may also be criminal

Table 2.1 Intentional torts

Intentional Torts Nature Defences

Assault and Battery Assault: threatened battery

Battery: intentional hitting

Consent: must be informed and complete

Self-defence: must be reasonable force

Accident but not a mistake False Imprisonment Complete physical or mental

restraint without authority

No actual confinement or submission

Had authority to imprison Trespass Coming on to or putting

something on another’s land without authority

Had authority to do so Had consent

Accident but not a mistake Nuisance Use of property so that it

interferes with neighbour’s use

Appropriate use of property for area

Not foreseeable outcome Defamation A published false and

derogatory statement: spoken (slander) or written (libel)

Truth, absolute privilege, qualified privilege, fair comment, and reasonable communication

10[1995] 2 SCR 1130 (SCC).

11Fennimore v. SkyService Airlines, Inc., 2009 ONCA 26 (CanLII).

12[1998] 1 SCR 439 (SCC).

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they picketed a provincial court building. Their signs suggested that a police officer inves-tigating the sexual abuse of children failed in his duty and contributed to, or participated in, sexually abusive conduct himself. The Supreme Court of Canada found that although sections of the Criminal Code did interfere with freedom of expression, they were justified under section 1 of the Charter of Rights and Freedoms to protect the reputation of individu-als so defamed. The original sentences imposed at trial were two years less a day for Mr. Lucas and 22 months for his wife, but these were reduced to 18 months and 12 months on appeal. These convictions were upheld by the Supreme Court of Canada.

Note also that false statements damaging the reputation of a product or service can also constitute a tort similar to defamation. Thus, circulating a false statement that a com-petitor’s brand of beer is contaminated would qualify as tortuous conduct. All such false statements attacking another business product or service can constitute an injurious false-hood and be actionable.

neglIgenCe

Of all the different ways of incurring liability in tort, negligence is by far the most impor-tant for the business person. Negligence involves inadvertent or careless conduct causing injury or loss to another. At the outset, it must be made clear that negligence is not a state of mind. We are not talking about someone being silly or stupid. Negligence involves the failure of one person to live up to a standard of care required in his or her dealings with others. The term careless, as it is often used, in this discussion refers to the failure to take proper care or the failure to live up to that required standard of care. When suing someone for negligence, several things must be established. First, that there was a duty of care. We do not owe a duty to be careful to everyone in the world or even to everybody in our community—only to limited classes or groups of people determined by legal test and social policy, as explained below. Second, once it is determined that a duty is owed, the next problem is to determine the nature of that duty. Just how careful does a person have to be? To succeed, the plaintiff must show that the conduct fell below a required standard or level of care. Third, it must be determined that there was some sort of injury or loss caused by the alleged conduct (see Table 2.2).

At the outset it is vital to understand the concept of the reasonable person in law.

While the conduct of average people might be more important in other disciplines, in law we set a standard of required behaviour somewhat higher than what would be expected of an average person. In effect, the court asks what a reasonable, objective bystander would have done in the same circumstances. This reasonable person test requires behaviour that is higher than average but less than perfect. A helpful comparison is the concept of par in a

lo 3/lo 4/lo 5

Negligence involves inadvertent conduct causing loss

Reasonable person means better than average but less than perfect

Table 2.2 requirements of negligence action Plaintiff Must establish Duty to Take Care That injury or loss was reasonably foreseeable (sometimes

limited by social policy based on the Anns case test) Failure to Take Care That the conduct complained of fell below the reasonable

person standard (or other standard imposed by statute) Causation and Damage That the conduct complained of caused loss or injury to

the plaintiff

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game of golf. Each hole on a golf course has a standard number of strokes associated with it called “par.” An average golfer will require more strokes than this number to sink the ball, even though it is possible for a good golfer (or a lucky one) to do it in less. Par, then, is a higher standard or goal, designed to challenge the golfer. It reflects what a good golfer hav-ing a good day would likely be able to accomplish. The reasonable person standard in law is similar. It reflects a standard of behaviour we would expect from a prudent person being careful, and while it need not reach perfection, it is clear that average is not good enough.