The Supreme Court decision in Grant v. Torstar Corp gives insight into the ongoing legal tussle between freedom of expression vs. protection of reputation afforded by the Canadian Charter of Rights and Freedoms. Until now the balance had tilted in favour of protection of reputation, and against the media making assumptions and expressing opinions about a person’s character or conduct.
Elsewhere on this website, we have written about defamation cases and have noted that:
“Defamation is a very tricky area of the law, as it requires finding a fair balance between the protection of a person's reputation and protection of the right to freedom of speech. The courts presume a person's good reputation. There is not only a very low threshold to a finding that a comment, whether written or spoken, is defamatory, but the courts will also give very broad interpretation to what is defamatory”.
We also explained that as a result, defamation is not difficult to establish, because the courts assume, in the absence of contrary proof, that a person enjoys a good reputation. At the same time, upholding one of the defenses to a finding of defamation can be difficult and requires very specific proof of facts.
The details of this drawn-out case are that Peter Grant, a wealthy businessman, decided to expand his lakeside golf course. This was no small project. Grant needed to purchase Crown property and do a large amount of landscaping. Local residents, concerned over the environmental impact, were very upset that the municipality had approved Grant’s development proposal. Rumours circulated that Grant, having close ties with former Ontario Premier Mike Harris, had used his connections to gain approvals for his purchase and developmental plans. Torstar Corp (The Toronto Star) initiated an investigation and published articles airing the views of local residents who were critical of the project and suspicious that Grant was exercising political influence to get his way.
Mr. Grant was not pleased with these publications and brought an action in tort for defamation. He claimed that the newspaper had tarnished his reputation by printing comments that were not factually true. At the heart of the dispute was the publication of a statement of a neighbour who said, in referring to the golf course: “everyone thinks it’s a done deal”. The plaintiff (Grant) contended that this publication effectively accused him of improperly using his influence to obtain government favours. The defendant (Torstar) countered that the article simply expressed the real and legitimate concerns of a local resident without actually leveling any allegation of impropriety against Grant.
At the initial trial a jury was instructed to decide the case based on the defenses of truth and fair comment. Grant prevailed at the initial trial and won a damage award of over $1 million. The newspaper appealed the case and the Appeal Court ruled that the trial judge had erred by not allowing the jury to also consider the defense of “public interest responsible journalism”. At this point Grant appealed and the newspaper also appealed to the Supreme Court, which dismissed both appeals, leaving the case where the Court of Appeal had left it, which was ordering a new trial with different instructions to the jury. Specifically, the jury was to be allowed to also consider the defense of responsible communication of a matter of public interest.
The implications of this complex case are significant. The Supreme Court has now concluded that the law of defamation should be modified to provide greater protection for communication on matters of public interest. Said the Court, “Although the right to free expression does not confer a licence to ruin reputation, when proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defenses available to those who communicate facts it is in the public’s interest to know”. So long as reporters act responsibly and use due diligence to verify their information, the media can now use the public interest defense more effectively to protect themselves against defamation lawsuits.
Previously, as we reported on this website several years ago, the argument that a person’s reputation was damaged would often trump a case. Now, celebrities, professional athletes, sports teams, businesses and corporations will no longer be able to hide behind the protective shield of “assault on one’s reputation” to stop the media from intruding and reporting on them.
Coaches and athletes alike should be cautious about what they say about others in e-mails or in a chat room. And sport organizations must be diligent in monitoring what appears on their Web sites and should not hesitate to remove disparaging material from a Web site over which they have control.
Originally published: Centre for Sport and Law Newsletter (2010) Vol. 6(1)