Sean Sinclair, counsel for the StarPhoenix,  shares his summary and comments on Judge Danyliuk’s decision of August 2012 to dismiss a defamation case brought by Conservative MP Maurice Vellacott:

Justice Danyliuk in this decision does an excellent job of summarizing and applying the defences of responsible journalism, fair comment and qualified privilege.

The Plaintiff is a Conservative MP for Saskatoon-Wanuskewin, first elected in 1997.  In the 2002 Canadian Alliance Leadership race, Mr. Vallacott was a strong supporter of Stockwell Day who was running against Stephen Harper for leadership of the new political party.  During the leadership campaign, Mr. Vellacott distributed two mailouts to his constituents endorsing Mr. Day as party leader.  The campaign literature was sent using Mr. Vellacott’s MP free mailing privileges.  Supporters of Stephen Harper contacted the StarPhoenix and criticized Mr. Vellacott’s use of taxpayer money towards an internal party leadership campaign.

The first newspaper story published by the StarPhoenix contained many of the Harper supporters’ criticisms of Mr. Vellacott.  In the various interviews performed by the StarPhoenix, Harper supporters indicated that it was “crooked” to use the MPs’ free mailing privileges in an internal party leadership campaign and that Mr. Vellacott was elected to represent his constituents, not “steal” from them.  One individual went so far as to indicate that it had elements of “Jim and Tammy Faye Bakker”.  Mr. Vellacott was quoted in the story and defended his use of his mailing privileges.

The second newspaper story published the following day contained interviews of other politicians, particularly from the NDP, about their views on the use of Mr. Vellacott’s mailing privileges.  Some of the comments reported in the story were that Mr. Vellacott’s actions do not “pass the smell test” and that he broke the “spirit” of the MPs’ mailing regulations.

Mr. Vellacott took exception to both stories and sued the StarPhoenix and the tho reporters.

Justice Danyliuk ultimately dismissed the action.

On the issue of where there was any defamatory content, Judtice Danyliuk determined that the only content that could be considered defamatory in the first story were the sections where individuals were quoted using the words “crooked” and “stealing”.  He determined that the quote about Jim and Tammy Faye Bakker was not defamatory, as the comment was so outrageous and ludicrous as to be unbelievable; thus, it would not lower the plaintiff’s reputation in the minds of right-thinking individuals.  The rest of the story was determined not to be defamatory as it constituted fair, albeit strongly worded, criticism of Mr. Vellacott’s actions in the political arena. The second story was determined to have no defamatory content.

The defences of responsible journalism, fair comment and qualified privilege were then reviewed at some length by Justice Danyliuk.  He untimately determined that both newspaper stories, to the extent that there was any defamation, were saved under all three defences.

Of particular note with the defence of responsible journalism was Justice Danyliuk’s reliance on the defendant’s expert’s testimony, who gave evidence on what constitutes “best practices” in the news reporting industry.  Justice Danyliuk otherwise goes through the Supreme Court’s responsible journalism test from Grant v. Torstar, 2009 SCC 61, to determine that the articles were saved by this defence. The Court indicated that news agencies are not held to a standard of “stylistic blandness”.

Justice Danyliuk also does a significant review of the law of qualified privilege at paragraphs 84 to 94 of the deceision. He indicates that it may be that the defence of qualified privilege has been subsumed in the context of media defendants into the responsible journalism test.  However, he indicates that the common law trend is to expand the defenceof qualified privilege to media defendants and thus he was prepared to do the same in this case.

Finally, on the fair comment defence, Justice Danyliuk indicated that all of the facets of the defence were made out and, thus, the articles were successfully defended on this basis as well.  He contrasted the words spoken in this case with those in WIC Radio Ltd. v. Simpson, 2008 SCC 40, (where the plaintiff was compared to the KKK and many other notable extremists) to make the point that the content of these articles was rather benign.

The decision (available below)  is a good summary of the law of defamation claims.