RSS FeedHelena Guergis Sues Harper, CPC, and Cassels
When former Conservative Party of Canada (CPC) Member of Parliament, Helena Guergis, filed a claim yesterday against Prime Minister Harper and the CPC at the Ontario Superior Court, the story made headlines.
What didn’t attract as much attention is that the claim also included as defendants Arthur Hamilton and his law firm, Cassels Brock & Blackwell LLP,
2. The Plaintiffclaims as against the Defendant, Arthur Hamilton (“Hamilton”), for conspiracy, defamation, breach of fiduciary duty, breach of duty of good faith, breach of confidence, and negligence.
3. The Plaintiff claims as against the Defendant, Cassels Brock & Blackwell LLP (“Cassels Brock”), for conspiracy, defamation, breach of fiduciary duty, breach of duty of good faith, breach of confidence, and negligence…14. Hamilton is an individual and a lawyer with the Toronto office of the Cassels Brock law firm who, at all material times, was the lawyer for CPC and Harper.
IS. Cassels Brock is a limited liability partnership and law firm with offices in several major Canadian cities that, at all material times, was acting as legal counsel for CPC and Harper.
The allegations against Hamilton include a claim that he received defamatory statements from Derrick Snowdy, a private investigator who appears to have played a role in the fiasco involving Guergis’ husband, Rahim Jaffer. The allegations then state that Hamilton conveyed this information to Prime Minister Harper and others named in the claim (or alternatively did not make these statements, as the claim indicates).
It’s difficult to see how this function, operating in the capacity as a lawyer, could not attach some form of privilege. Absolute privilege may be available to some of the other defendants (see New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)) and the defence of qualified privilege may attach to statements made by others. Lewis N. Klar stated in the Ottawa Law Review ((1991) 23 Ottawa Law Review 177-26),
The right of politicians to communicate information to the public has been protected by the defence of qualified privilege in recent defamation cases. In Parlett v. Robinson393, and Loos v. Robbins394, Courts of Appeal have upheld the right of a Member of Parliament in the former case, and a Cabinet Minister in the latter, to make statements to the public through the media, which although defamatory were made in furtherance of their public duties. These decisions demonstrate a greater latitude to the types of statements which will be protected, particularly with regard to the breadth of their publication, than had been the case in earlier Canadian law395.
In Leverman v. Campbell Sharp396, Lambert J.A. held that the defence of qualified privilege will be defeated if the defendant publishes a statement which is not his honest belief. Although carelessness in forming the belief will not defeat the defence, carelessness in publishing it, so that the statement does not represent one’s views, will.
In order to overcome qualified privilege there must be an element of malice, as explained in Hill v. Church of Scientology of Toronto,
144 The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice. See Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 149.
145 Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes, as Dickson J. (as he then was) pointed out in dissent in Cherneskey, supra, at p. 1099, “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created. See, also, Taylor v. Despard, [1956] O.R. 963 (C.A.). Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. See McLoughlin, supra, at pp. 323-24, and Netupsky v. Craig, [1973] S.C.R. 55, at pp. 61-62.
146 Qualified privilege may also be defeated when the limits of the duty or interest have been exceeded. See The Law of Defamation in Canada, supra, at pp. 13-193 and 13-194; Salmond and Heuston on the Law of Torts (20th ed. 1992), at pp. 166-67. As Loreburn E. stated at pp. 320-21 in Adam v. Ward, supra:
- . . . the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected.
147 In other words, the information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when that information was given. For example, in Douglas v. Tucker, [1952] 1 S.C.R. 275, the defendant, during an election campaign, stated that the plaintiff, who was the officer of an investment company, had charged a farmer and his wife an exorbitant rate of interest causing them to lose their property. The plaintiff maintained that the allegation was without foundation. In response, the defendant asserted that the plaintiff was facing a charge of fraud which had been adjourned until after the election. This Court held that the defendant had an interest in responding to the plaintiff’s denial, thereby giving rise to an occasion of qualified privilege. However, it ruled that the occasion was exceeded because the defendant’s comments went beyond what was “germane and reasonably appropriate” (p. 286).
The other claims against Hamilton are also worth highlighting because it involves his firm,
45. On April 8 and 9, 2010, and all material times, Hamilton and Cassels Brock owed a fiduciary duty and duty of good faith to the Plaintiff, and were obligated to act with regard to the Plaintiffs interests and keep and protect the Plaintiffs confidences as a result of the relationship that existed as between the Plaintiff, Hamilton and Cassels Brock, including as a result of the legal advice that had been provided by Hamilton and Cassels Brock to the Plaintiff on or about April 7, 2010 at a time when the Plaintiff was vulnerable and dependent upon Hamilton and Cassels Brock and relying upon their professional advice.
If Cassels was indeed representing both Guergis and Harper/CPC at the same time, and was providing advice to Harper/CPC that was detrimental to Guergis, it is difficult to see how there could not be a conflict of interest,
48. In addition, Hamilton and Cassels Brock failed to avoid a conflict of interest whereby the interests of their other client(s) were promoted at the expense of the Plaintiffs interests, resulting in breaches of their fiduciary duties and duties of good faith owed to the Plaintiff.
Of course the nature of the advice, and whether they attempted to remove themselves from the record, are other factors that may come into play, especially since Harper made a statement soon after,
72. Also on or about April 9, 2010, Harper made the following public statement: Last night, my office became aware of serious allegations regarding the conduct of the Honourable Helena Guergis. These allegations relate to the conduct of Ms. Guergis and do not involve any other minister, MP, senator or federal government employee. I’ve referred the allegations to the Conflict ofInterest and Ethics Commissioner and to the RCMP. Under the circumstances, I will not comment on them further.
At the very least the lawsuit will finally provide information about the inner workings of Harper’s Conservative Party, which has been the target of general accusations of unilateralism and squashing any dissent. The lawsuit may eventually demonstrate that not unlike the Liberal Party before them, infighting is an unfortunate reality of Canadian political parties once established in power. While this revelation might be refreshing to those who mistakenly believed it to be a problem plaguing Liberal dynamics, it may be less than inspiring to a generation who has been largely apathetic and removed entirely from public political discourse.
The Statement of Claim is below.
Guergis v Novak et al Statement of Claim
The Bloody Vibrator Suit
The title says it all. SF Weekly:
A Northern California woman is suing Pipedream Products, which manufactures sex toys, claiming her experience with her dildo was anything but pleasurable. According to the claim filed in Yreka, April Bonjour and her boyfriend were getting frisky and decided to bring out the dildo for some foreplay. But while the two were getting it on, something started to feel not quite right, according to Bonjour.
You can read the pleadings here.
Renewing the Debate on Anti-SLAPP Legislation in Ontario
October 28th of this month will mark the one year anniversary of the publication of the Anti-SLAPP Panel’s Report to the Attorney General on anti-SLAPP legislation. Since then, the chatter on the issue of strategic litigation against public participation (SLAPP) appears to have died down. With the intent of renewing the debate on this issue, the following article, although long overdue, will summarize and discuss the Advisory Panel’s report. It is hoped that the new provincial government will address the issue of SLAPPs during its four year term.
Introduction
In June 2010 the Attorney General of Ontario created the Advisory Panel to advise him on potential anti-SLAPP legislation. Arguably, this move was in response to what has been described as the “most down-and-dirty development fight in Ontario’s recent memory”.[1] After gaining approval from the Ontario Municipal Board (OMB) to build a resort and marina on the shores of Big Bay Point, a developer made a costs application for $3.2 million against a community group and its lawyers that had opposed its plans.[2] Although the OMB declined to award the developer its costs, the latter did not come away from the proceedings empty-handed. The notion of suing the lawyers of defendants to a SLAPP lawsuit sent shockwaves throughout the Ontario legal community. While the Advisory Panel was still in the process of developing its recommendations the insurer for Ontario lawyers warned its members that representing public interest groups was risky because those groups may become the target of a SLAPP lawsuit that involves great unanticipated cost consequences.[3]
Having reached that critical point, it was not a great surprise that the final report released by Advisory Panel to the public in December 2010 recommended that anti-SLAPP legislation should be created. Instead of endorsing the creation of new statutory rights to public participation and to “SLAPPback,” the Advisory Panel opted for a procedure-based approach for filtering out SLAPP lawsuits and made recommendations on the different types of provisions that should be included in the legislation. Read more
Pill Turns Man Into Gay Gambler
In perhaps one of the most bizzare products liaiblity cases we’ll see in some time, Didier Jambart of France is suing GlaxoSmithKline over the company’s Parkinson’s drug, Requip (ropinirole),
The 51-year-old’s lawyers say their client’s behaviour changed radically after he was first administered the drug in 2003 for the illness, which causes tremors, slows movement and disrupts speech.
Didier Jambart, a married father-of-two who says he has attempted suicide three times, claims he became addicted to Internet gambling, losing the family’s savings and stealing to feed his habit.
He also became a compulsive gay sex addict and began exposing himself on the Internet and cross-dressing. His risky sexual encounters led to him being raped, his lawyers said.
The behaviour stopped when he stopped taking the drugs in 2005 but by then he had been demoted in his defence ministry job and was suffering from psychological trauma resulting from his addictions, his lawyers said
FOX News points out that National Institutes of Health warnings for this drug include:
• Tell your doctor if you have ever had an urge to gamble that was difficult to control and if you have or have ever had unexpected daytime sleepiness or a sleep disorder other than restless legs syndrome; high or low blood pressure; a psychotic disorder (mental illness that causes abnormal thinking or perceptions); or heart, liver, or kidney disease
• You should know that some people who took medications such as ropinirole developed gambling problems or other intense urges or behaviors that were compulsive or unusual for them, such as increased sexual urges or behaviors. There is not enough information to tell whether the people developed these problems because they took the medication or for other reasons. Call your doctor if you have an urge to gamble that is difficult to control, you have intense urges, or you are unable to control your behavior.
Legal Blog Watch points to the company’s product insert,
Some patients taking REQUIP get urges to behave in a way unusual for them. Examples of this are an unusual urge to gamble or increased sexual urges and behaviors. If you notice or your family notices that you are developing any unusual behaviors, talk to your healthcare provider
Warman v. Fournier et al: Balancing Disclosure, Privacy, and Freedom of Expression Interests in Internet Defamation Cases
While the internet provides users with an environment in which socially valuable anonymous speech can flourish, it also provides users with an opportunity to defame others behind a shield of anonymity. If these users can be identified, they may be held liable for defamation. Unfortunately for plaintiffs, the identities of these individuals are usually known only by the website or internet service provider (“ISP”) through which the statements were made, and these entities generally decline to disclose a user’s identity in the absence of a court order compelling them to do so. Faced with a growing stream of plaintiffs who seek these kinds of orders, courts have sought to craft approaches to evaluating applications for disclosure that strike an appropriate balance between the privacy interests of anonymous internet posters and the reputational interests of plaintiffs.
Yesterday, the Ontario Divisional Court released its decision in Warman v. Fournier et al, 2010 ONSC 2126 (Div. Ct.) rev’g (2009), 309 D.L.R. (4th) 227, 76 C.P.C. (6th) 155 (Ont. S.C.J.) (“Warman”). At issue was whether the disclosure provisions of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) automatically entitle plaintiffs in internet defamation cases to obtain the identifying information of anonymous posters from websites and ISPs, or whether courts must balance the interests of plaintiffs with the freedom of expression and privacy interests of anonymous posters. The decision is now the leading authority in Ontario for the proposition that the objectives of the disclosure obligations under the Rules must be balanced with the right of freedom of expression in internet defamation cases. This article discusses the background, holding, and implications of Warman.
1. Background
The Respondent commenced an action against the Appellants, the operators of an internet message board, and eight anonymous message board participants with respect to a series of allegedly defamatory postings. After commencing the action, the Respondent brought a motion for an order compelling the Appellants to comply with Rule 76.03 of the Rules which required the Appellants to file an affidavit of documents that disclosed the email and internet protocol (“IP”) addresses of the anonymous posters in order to allow the Respondent to identify the posters and serve them with the statement of claim.
The motions judge rejected the Appellants’ submission that the Respondent was required to establish a prima facie case of defamation before disclosure could be ordered. Instead, Justice Kershman concluded that Rule 76.03 of the Rules required the Appellants to disclose all documents in their power or control and that such disclosure should be automatic upon the issuance of a statement of claim because the information was relevant and not protected by privilege.
This decision stood in stark contrast with earlier cases that offered some protection to the privacy interests of internet users by requiring plaintiffs to demonstrate a bona fide or prima facie case of defamation before ordering disclosure (see: previous posting). The motions judge distinguished these cases on the basis that the Respondent was seeking to compel the Appellants to follow the Rules as required by named parties to the action, whereas the other cases involved discretionary orders for the production of documents from third parties.
2. Holding on Appeal
The Divisional Court unanimously allowed the appeal and remitted the matter to a different motions judge for re-consideration, recognizing that the anonymous posters’ right of freedom of expression under the Charter should have been taken into account in considering the Respondent’s request for disclosure under the Rules. Moreover, the Court noted that the posters’ express decisions to remain anonymous gave them a reasonable expectation of privacy that weighed in their favour.
In rejecting the notion that disclosure should be automatic, the Court also expressed concern for the ease by which a plaintiff could abuse the Rules by filing claims in a spurious manner simply to identify an anonymous poster:
If disclosure were automatic, a plaintiff with no legitimate claim could misuse the Rules of Civil Procedure by commencing an unmeritorious action for the sole purpose of revealing the identity of anonymous internet commentators, with a view to stifling such commentators and deterring others from speaking out on controversial issues. For this reason, the commencement of a defamation claim does not trump freedom of expression or the right to privacy.
[Warman, at para. 33]
After surveying previous decisions, Justice Wilton-Siegel set out four considerations, aimed at preventing abuse of the Rules and respecting the privacy of internet users, that should have been considered by the motions judge in deciding whether to order disclosure under the Rules:
- whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances;
- whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith;
- whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and
- whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.
[Warman, at para. 34]
In concluding that plaintiffs should be required to meet a prima facie standard rather than a lower bona fide standard, the Court emphasized the importance of protecting freedom of expression and noted that there was no concern that the higher standard would deprive applicants of a remedy:
In para. 34 of BMG [2005 FCA 193], the Federal Court of Appeal expressed the concern that, in that case, imposition of a prima faciecase standard would effectively strip an applicant of a remedy because the plaintiff could not know the actual case it wished to assert against the defendants until it knew not only their identities but also the nature of their involvement in the [internet] file-sharing activities. Because the present proceeding is a defamation action, that concern does not arise. Unlike BMG, the respondent knows the details of precisely what was done by each of the unknown alleged wrongdoers.
In addition, because this proceeding engages a freedom of expression interest, as well as a privacy interest, a more robust standard is required to address the chilling effect on freedom of expression that will result from disclosure. It is also consistent with the recent pronouncements of the Supreme Court that establish the relative weight that must be accorded the interest in freedom of expression. In the circumstances of a website promoting political discussion, the possibility of a defence of fair comment reinforces the need to establish the element of defamation on a prima facie basis in order to have due consideration to the interest in freedom of expression. On the other hand, there is no compelling public interest in allowing someone to libel and destroy the reputation of another, while hiding behind a cloak of anonymity. The requirement to demonstrate a prima facie case of defamation furthers the objective of establishing an appropriate balance between the public interest in favour of disclosure and legitimate interests of privacy and freedom of expression.
[Warman, at paras. 41 - 42]
3. Implications
Warman represents an important recognition that while internet users’ anonymity ought not to be protected absolutely, the mere commencement of a defamation action should not give rise to an automatic entitlement to information identifying a previously anonymous poster without a consideration of the interests of privacy and freedom of expression.
Nevertheless, there is still uncertainty with respect to the degree of protection that courts will afford to anonymous posters in the future. Under Canadian law, plaintiffs have two ways to seek disclosure in internet defamation cases. Apart from identifying anonymous defendants by seeking pre-action discovery or production of relevant information under procedural rules, as occurred in Warman, plaintiffs may also bring independent actions for disclosure of the identity of anonymous defendants by way of an equitable bill of discovery known as a “Norwich order”. Norwich orders were introduced in the decision of the House of Lords in Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.) in which it was held that where a third party becomes involved in the tortious acts of others, that third party has a duty to disclose the identity of the tortfeasor so that the plaintiff may pursue its remedies. The Norwich factors were recently confirmed by the Ontario Court of Appeal in GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619 and applied in the internet defamation context by the Ontario Superior Court of Justice in York University v. Bell Canada Enterprises (2009), 311 D.L.R. (4th) 755 (Ont. S.C.J.) (“York University”):
- whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
- whether the applicant has established a relationship with the third-party from whom the information is sought, such that it establishes that the third party is involved in the acts;
- whether the third party is the only practicable source of the information;
- whether the third party can be indemnified for costs to which it may be exposed because of the disclosure; and
- whether the interests of justice favour obtaining the disclosure.
[York University, at para. 13]
Although the second and fourth Norwich factors were not relevant in Warman because they apply only to third party respondents rather than co-defendants [see Warman, at para. 39], some of the other Norwich factors are similar to the considerations set out in Warman that are now applicable to the question of whether a court should order disclosure under the Rules. However, an important difference remains. While the approach under Warman requires plaintiffs to demonstrate a prima facie case of defamation, Norwich jurisprudence has required plaintiffs to meet the lower bona fide standard. For example, even though the plaintiff in York University managed to establish a prima facie case of defamation, the court did not require the plaintiff to demonstrate more than a bona fide case. Although Warman provides compelling reasons to prefer the higher prima facie standard where the plaintiff seeks disclosure through a Norwich order, it remains open for courts to require plaintiffs to meet the lower standard instead.
Originally posted on Defamation Law Blog
George Lucas Doesn’t Like Legal Bloggers…
Ewok! At times I feel like legal blogging is like Mark Hamill’s career. It will lead to Broadway and cartoon voiceovers rather than Bay Street or serious advocacy.
I look after my brother who is a big Star Wars fan. I’ve been to two Star Wars conventions because of him. So when Star Wars Celebration V (“SWCV”) was announced for Orlando, August 12 – 15, 2010, I thought it may be an opportunity to do some legal blogging among one of popular culture’s leading franchises. My brother had already booked the room and I had enough airmiles to make the trip cost effective.
When SWCV’s official web page was launched, I immediately applied for media credentials. As a law student and a legal blogger, the idea of writing stories of importance to the legal profession from the Star Wars universe was literally out of this world for me.
I pitched my involvement in terms of the great depository of legal material available at the convention. Issues of intellectual property, copyright, trademarks, contract, and entertainment law have obvious importance. The geek in me asked, “Could Luke sue in tort for having his hand sliced off by his father?” Or for that matter, “Could Anakin have a claim as well when he lost his right arm years before during a duel with Count Dooku?” Then there was the ever complicated contractual issue involving the clone armies produced by the Kaminoans for the Jedi Council, commissioned by a Jedi long since dead.
I waited for the three week turnaround for approval but nothing. I email the contact at Reed Exhibitions, the company running the convention, and who I must say was always prompt and professional. Eventually I was notified that my request for media credentials was declined. Being a bit of a tie-fighter, I appealed. Lucasfilm’s press department through Reed Exhibitions made it known that www.lawiscool.com did not match “the criteria that they’re looking for to provide a media badge to the event”.
What? I was at Indianapolis and Los Angeles in 2005 and 2007. My bar tabs nearly killed me. What did George Lucas have against law students or lawyers for that matter? Then the asteroid in the room hit me.
Reed Exhibitions is owned by Reed Elsevier who also owns Lexis Nexis, its legal publishing wing. The quicklaw of conspiracies entered into my mind. None of the six motion picture Star Wars films, nor the Clone Wars animation series, and not even the cult favourite Star Wars the Christmas Special featured lawyers. Sure they have bounty hunters, the Sand People, and Hutt mobsters but alas none from the learned profession.
George doesn’t like lawyers. The darth of examples are abundantly clear. It is like lawyers were the Jar Jar Brinks of the money-interested professions, trying to blow up the Star Wars world through the death star of blogging.
By experience, I understand that the Star Wars Celebration gatherings are a wretched hive of scum and villainy but then I went to law school. By Princess Leia’s slave costume, in Indianapolis I even had coffee at Starbucks across the street from the event with Barrie Holland, the English actor who played the Imperial Officer who quipped to Han Solo, “You Rebel Scum” in The Empire Strikes Back. A nice chap, we both were taking a time out from Star Wars fandom.
I’m sorry to droid on like this but I feel like a rebel challenging the dreaded empire. What does the Lucas brand have to lose by giving a legal blogger a media pass? I might increase the interest level in an active and professional market while addressing legal issues affecting more than just the Star Wars universe? I will never force the issue but I do look forward to a new hope.
The Author at Celebration IV in Los Angeles, 2007
Discussing Quan v. Cusson and Grant v. Torstar
The Ontario Bar Association (OBA) Young Lawyers Division has an interesting article by Karen Perron of Merovitz Potechin LLP discussing an event they held with Wendy Wagner of Gowling Lafleur Henderson LLP and Ron Caza of Heenan Blaikie LLP on the two recent SCC decisions in Quan v. Cusson and Grant v. Torstar,
After reviewing the decisions themselves, our speakers discussed the impact of the decisions on the daily practice of law in this area. Because a key component of the defence is proving that the journalist/writer was diligent in trying to verify their story, will this now invite a more formal exchange between the media and the subjects of the reports who are, arguably, the potential victims of defamation? Lawyers acting on the plaintiff side are now getting calls from their clients immediately after they are contacted by journalists. What is the best advice to provide to your client in this circumstance? How can you provide an opinion to your client on the merits of his or her case without first proceeding to discoveries to uncover the extent of the journalist’s due diligence? Of course, the counterargument is that responsible journalists should always take the necessary steps to verify their stories prior to reporting them in any case, including speaking to the subject of the report. Will this defence actually bring anything new to the manner in which good journalists function? However, will the responsible journalism defence now impact the public’s interest to receive news stories in a timely and effective manner? How long should a journalist wait to receive a plaintiff’s response in a world where news is a quickly perishable item?
Many other considerations also come into play. How will the defence evolve in light of the fact that the jury has been given the role of determining whether the publisher was diligent in trying to verify the allegations? Also, the defence has not been limited to the media. What effect will this have on bloggers and tweeters? These decisions also introduced the reportage defence, which is an exception to the repetition rule that otherwise holds that repeating a libel has the same legal consequences as originating it. How will the new reportage defence evolve? Will experts be required to testify on whether or not a journalist completed their due diligence? Will a standard of care emerge for journalists?
Good questions. We’ll have to watch the case law to find out.
Georgian Luger Dies as Olympics Commence…
I am going to start this off by saying it is with a sense of sadness that I write this piece.
Twenty-one year old Georgian luger, Nodar Kumaritashvili, died in a training run today at the Whistler Sliding Centre in Whister, B.C. It has been reported that he was travelling in excess of 140 km/h before the incident occurred.
A report by the Toronto Star said “he didn’t have a chance.”
I have seen the video (after doing some hunting around), and the impact was horrifying to put it mildly.
However, since this is a law site. Perhaps this may be too soon, but this incident is definitely going to need some analyzation. The Toronto Star also reports that this specific luge course has a particularly “nasty reputation.”
CTV luge analyst Chris Wightman said experienced lugers aren’t having problems on the course but that less experienced riders are finding it hugely challenging.
Had Vancouver Olympic Committee (VANOC) and the International Luge Federation ensured that this was a safe course? Was the fact that he had previously crashed on Wednesday play a factor into whether an action is brought against the committee?
Questions like these will reveal themselves in the coming days, but for the time being, our thoughts here (and I’m sure I speak for everyone) are with the family, friends, and luging community.
RIP Nodar.
Liebeck v. McDonald’s Restaurants – Redux
Aimee Green of The Oregonian reports,
An attorney for Aurora Hill filed suit in Multnomah County Circuit Court Wednesday afternoon — stirring memories of a controversial 1994 suit in which a jury awarded $2.86 million to an Albuquerque, New Mexico woman who spilled scalding-hot coffee on herself, suffering severe burns that required hospitalization. Upon appeal, the parties settled for an undisclosed amount.
…She went into “nervous shock,” endured pain and has scarring. She seeks $7,182 for her pain and suffering, plus another $318 for lost wages and medical expenses.
See our previous posts:
- Driving While Under the Influence of Texting
- Defending Liebeck v. McDonald’s
- Liebeck v. Starbucks – The New Chapter of Hot Torts
Grant v. Torstar and the defence of responsible communication: implications for bloggers and users of other online media
In the recent decision of Grant v. Torstar Corp., 2009 SCC 61 (“Grant”) and its companion case, Quan v. Cusson, 2009 SCC 62 (“Quan”), the Supreme Court of Canada sought to strike a more appropriate balance between freedom of expression and the protection of reputation by creating the new defence of “responsible communication on matters of public interest” (the “Defence”). The Defence allows defendants in libel cases where statements of fact are at issue to evade liability if they can show that they acted responsibly in reporting on a matter of public interest, even if the statements of fact are untrue. Prior to the decision, defendants could not avoid liability in these cases unless they showed that the statement was substantially true (the defence of justification), or that the statement was made in a protected context (the defence of privilege).
Importantly, the Defence applies not only to journalists and print-based publishers – the types of defendants in Grant and Quan – but also to non-journalist bloggers and users of other online media:
[T]he traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree … that the new defence is “available to anyone who publishes material of public interest in any medium”. [Grant, at para. 96]
[Emphasis added]
Although the extension of the Defence to non-journalist bloggers and users of other online media is an important recognition of the growing relevance and legitimacy of these groups, the Defence is – at least currently – unlikely to protect most members of these groups. To gain the protection of the Defence, the defendant must establish two elements: (1) that the publication is on a matter of public interest; and (2) that the publication was responsible, in that the defendant was diligent in trying to verify the allegation. The trial judge will determine the first element. If the judge concludes that the first element is met, the jury will determine the second element, having regard to several factors:
- 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 the 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; and
- any other relevant circumstances
In assessing whether the defendant was diligent, the jury will be guided by “established journalistic standards”:
[M]any actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. [Grant, at para. 97]
[Emphasis added]
This indicates that the same journalistic standard must be applied to every defendant irrespective of whether or not they are journalists. As a result, the Defence will likely not apply to non-journalist bloggers and users of other online media unless they perform the due diligence expected of a journalist in the circumstances.
The problem for many members of these groups is that they are generally not guided by established journalistic norms. Although they may approach online publishing in good faith and with a level of diligence reasonably expected of non-journalists, this level of diligence is unlikely to meet the required journalistic standard. For example, although journalists will generally make a point of seeking the plaintiff’s side of the story and speaking directly to witnesses and experts, non-journalist bloggers – who are generally unpaid for their efforts – will rarely have the time, resources, training, or willingness to do so. As one American commentator argues,
blogging and journalism clearly differ. The former ‘implies that a disinterested third party is reporting facts fairly’ (Andrews, 2003: 64). Blogs are ‘unedited, unabashedly opinionated, sporadic and personal’ (Palser, 2002) – in many ways, the antithesis of traditional US journalism. Some say that is the best thing about them. ‘Journalism is done a certain way, by a certain kind of people,’ but bloggers “are oblivious to such traditions” (Welsh, 2003). [Jane B. Singer, “The political j-blogger: ‘normalizing’ a new media form to fit old norms” (2005) 6(2) Journalism 173 at 176]
[Emphasis added]
Even if a non-journalist blogger or user of other online media does engage in the level of diligence required to meet the journalistic standard, they may unknowingly fail to do so in a way that produces a strong record of evidence from which a court can conclude that they did act diligently. As a result, many of these defendants may simply not have access to the protection of the Defence.
Nonetheless, Grant does not foreclose the possibility that courts will apply a different diligence standard to non-journalist bloggers and users of other online media as the “norms of new communications media” evolve. Although the court isn’t clear on this point, these groups might be able to gain the protection of the Defence in future cases even if they haven’t performed their diligence in the same way that a traditional journalist would have:
While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. [Grant, at para. 97]
[Emphasis added]
Even if the standard applicable to these groups does not shift to allow them to gain the protection of the Defence, juries – who have been tasked with the responsibility for assessing whether the defendant was diligent – may be sympathetic to these groups and apply the journalistic standard less rigidly.
In summary, although the Defence extends to non-journalist bloggers and users of other online media, many members of these groups are unlikely to be protected by the Defence because it requires that they performed the due diligence expected of a journalist. Nonetheless, the law does not necessarily foreclose the possibility that courts will apply a different diligence standard to these groups in future cases, or that juries will less rigidly apply the existing journalistic standard.
Originally posted on Defamation Law Blog
Law Suits and Public Relations
According to an article by Canadian Press, Loblaws has seen the light and will no longer sue the man ‘deemed to be at fault’ for a collision involving a Loblaws truck that caused the death of the man’s wife and 6 teenage boys. The legal action had been a lingering PR disaster that motivated outraged communities to push for a boycott.
Having spent all of 4 minutes considering the matter, I am struck by the lack of circumspect. This accident was a highly publicized tragedy that made front-page national news. Prime Minister Harper sent a letter of condolence to the school that the teenagers attended, according to CBC news, and no where in the coverage was the driver blamed.
This man was a basketball coach. He was driving a van that carried the basketball team plus his wife and daughter. It was winter and the road conditions were not good when the van fish-tailed on a highway and unspeakable tragedy ensued. This man might have been driving too fast, and his negligence might have caused damage to a Loblaws truck, however, from where I sit, public backlash seems a likely outcome of litigation. He made a horrible mistake and paid very dearly for it: He lost his wife, he could have lost his daughter. Many families in the community lost a son. Meanwhile, amidst all of this loss of life, Loblaws wants to recover for a damaged truck and lost inventory. This looks cold-hearted to say the least.
There is lesson to be learned here. As we graduate from law school and become involved in that financial bloodsport called litigation, we should remember that law suits do not occur in a vacuum. Even though the law says you can, and even if you’re impervious to emotional reactions to sympathetic defendants, you should consider the potential for public outcry. The client likely values his or her public profile more than money, and this applies whether the matter is civil, family or criminal.
From where I sit this seems so obvious … but maybe things look different after swimming in shark-infested water for a few years. Perhaps the real lesson is to remember what things look like from the outside when your on the inside.
Exclusive school accused of coverup
A lawsuit accuses an exclusive Ottawa prep school of refusing to make a sexual assault complaint to police after a 16-year-old boy was allegedly attacked by fellow students during a Grade 11 trip to Boston.
