SCC Creates Defence of Public Interest Responsible Communication

In what are perhaps the most significant decisions in Canadian defamation law, on December 22, 2009, the Supreme Court of Canada recognized a new defence of “public interest responsible communication” in Grant v. Torstar Corp., 2009 SCC 61 and Quan v. Cusson, 2009 SCC 62. This defence will protect statements of fact on matters of public interest, even if the defendant cannot prove the statements published were true, provided the defendant can “show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances” or was engaged in mere reportage.

In Grant, the Supreme Court of Canada upheld the Ontario Court of Appeal's decision overturning a jury verdict against the Toronto Star that had awarded $1.475 million in damages to a northern Ontario businessman and his private corporation for libel. Peter Grant had sued the Toronto Star over an article written by investigative journalist Bill Schiller in June 2001, which detailed the concerns of Grant's neighbours regarding his proposed private golf course development on Crown land by a lake in northern Ontario. The article also discussed Grant's connections to the provincial Progressive Conservative Party and then-premier Mike Harris.

In Quan, the court ordered a new trial and overturned a jury verdict of $100,000 against the Ottawa Citizen. The Ottawa Citizen reported that Danno Cusson, an Ontario Provincial Police officer, drove to New York City after the terrorist attacks on the World Trade Center and searched for survivors at Ground Zero with his untrained pet dog and that New York police officers said Cusson was wearing an RCMP uniform.

Blake, Cassels & Graydon LLP represented the respondents/appellants on cross¬-appeal in Grant and the intervener Torstar in the Quan appeal with a team that comprised Paul Schabas, Erin Hoult and Iris Fischer (media law, litigation).

Fasken Martineau DuMoulin LLP represented the appellants/respondents on cross-appeal in Grant and the intervener Grant in the Quan appeal with a team that comprised Peter Downard, Catherine Wiley and Dawn Robertson.

Gowling Lafleur Henderson LLP acted for the appellants Quan/Ottawa Citizen in Quan and the intervener the Ottawa Citizen in the Grant appeal with a team that comprised Richard Dearden and Wendy Wagner.

Heenan Blaikie LLP acted for the respondent Cusson in the Quan appeal and as an intervener in the Grant appeal with a team that comprised Ronald Caza and Jeff Saikaley.

Bersenas Jacobsen Chouest Thomson Blackburn LLP intervened on behalf of the Globe and Mail and the Media Coalition at the Ontario Court of Appeal in the Quan appeal and later intervened on behalf of the Globe and Mail in the Supreme Court of Canada with a team that comprised Peter Jacobsen and Adrienne Lee and Tae Mee Park.

Brian MacLeod Rogers acted in both appeals for Media Coalition interveners, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, RTNDA Canada/The Association of Electronic Journalists, Canadian Publishers' Council, Magazines Canada, Canadian Association of Journalists, Canadian Journalists for Free Expression, The Writers' Union of Canada, Professional Writers Association of Canada, Book and Periodical Council and PEN Canada

Daniel Henry, Senior Legal Counsel at the Canadian Broadcasting Corporation (CBC), acted in both appeals for the intervener the CBC.

Torys LLP acted in both appeals for the intervener the Canadian Civil Liberties Association with a team that comprised Patricia Jackson, Andrew Bernstein and Jennifer Conroy.