Supreme Court of Canada Recognizes New Libel Defence: Historic Decision Creates Defence of Public Interest Responsible Communication

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Paul Schabas & Erin Hoult

In what is perhaps the most significant decision in Canadian defamation law, the Supreme Court of Canada today recognized a new defence of "public interest responsible communication" in Grant v. Torstar Corporation. 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."

The Supreme Court of Canada upheld the Ontario Court of Appeal's decision overturning a jury verdict against the Toronto Star that had awarded C$1.475-million in damages to a northern Ontario businessman and his private corporation for libel.

In November 2008, the Ontario Court of Appeal overturned the jury's decision and ordered a new trial. For more on the Court of Appeal's decision, see our December 2008 Blakes Bulletin on Litigation: Toronto Star Wins Libel Appeal; Ontario Court of Appeal Decision is First Canadian Case to Apply Responsible Journalism.

The Supreme Court has named the new defence "public interest responsible communication" to reflect that the defence is available not just to the press, but "to anyone who publishes material of public interest in any medium."

The Supreme Court agreed with the submissions made by Blakes on behalf of the Toronto Star 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." The court agreed that the traditional law of defamation too greatly favoured protection of reputation, stating that "defamation lawsuits, real or threatened, should not be a weapon by which the wealthy and privileged stifle the information and debate essential to a free society."

As the trial judge failed to leave the defence of "public interest responsible communication" to the jury, and as he made other errors in instructing the jury, the Supreme Court ordered a new trial.

The respondents were represented by a team from Blakes led by Paul Schabas and including Erin Hoult and Iris Fischer. Blakes Media Group has the leading lawyers in the field. It regularly acts for newspapers, broadcasters and publishers on defamation and related matters, at trials, on appeals and before the Supreme Court of Canada.

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