- •Introduction
- •1) Criminal Law and Tort Law Contrasted
- •B. The origins of canadian tort law
- •1) The Nature of the Defendant's Conduct
- •2) The Nature of the Plaintiff's Loss
- •D. The objectives of tort law
- •2) The Instrumentalist View
- •I) Specific Deterrence
- •II) General Deterrence
- •III) Market Deterrence
- •E. Personal injury, tort law, and other compensatory vehicles
- •1) Governmental Initiatives
- •2) Private Sector First-Party Insurance
- •F. The organization of tort law
- •A. Introduction
- •1) Application of the Standard of Care
- •I) Judicial Policy
- •2) Special Standards of Care
- •3) Proof of Negligence: Direct and Circumstantial Evidence
- •1) Cause-in-Fact
- •4) Market Share Liability
- •5) Loss of a Chance
- •6) Multiple Tortfeasors Causing Indivisible Damage
- •D. Damage
- •E. The duty of care
- •1) The Foreseeable Plaintiff (The First Branch of the Anns Test)
- •2) Policy Considerations (The Second Branch of the Anns Test)
- •The Supreme Court decision in Galaske V. O'Donnell [Note 123:
- •In its recent decision in Ryan V. Victoria (City) [Note 126:
- •F. Remoteness of damage
- •1) The Foreseeability Rule
- •G. Defences
- •1) Contributory Negligence
- •2) Voluntary Assumption of Risk (Volenti Non Fit Injuria)
- •3) Illegality (Ex Turpi Causa Non Oritur Actio)
- •4) Inevitable Accident
- •H. Remedies
- •1) Personal Injury
- •I) The Impact of the Trilogy
- •2) Death
- •3) Property Damage
- •A. Introduction
- •B. Products liability
- •1) Manufacturing Defects
- •2) The Duty to Warn
- •3) Reasonable Care in Design
- •1) The Duty of Care
- •2) The Standard of Care
- •D. Human reproduction
- •1) Prenatal Injuries
- •2) Wrongful Birth
- •3) Wrongful Life
- •4) Wrongful Pregnancy
- •E. Occupiers' liability
- •1) The Classical Common Law of Occupiers' Liability
- •2) The Modern Common Law of Occupiers' Liability
- •3) Legislative Reform
- •F. Breach of statutory duty
- •G. Pure economic loss
- •I) Foreseeable Reliance/Reasonable Reliance : The Prima Facie Duty of Care
- •II) Policy Concerns: The Issue of Indeterminacy
- •2) Negligent Performance of a Service
- •3) Relational Economic Loss
- •I) Contractual Relational Economic Loss
- •4) Product Quality Claims
- •H. Governmental liability
- •2) Negligence
- •In Rondel the House of Lords provided a number of reasons for the immunity. They included:
- •Intentional torts
- •A. Introduction
- •B. The meaning of intention
- •C. Intentional interference with the person
- •1) Battery
- •3) False Imprisonment
- •5) False Imprisonment and Malicious Prosecution
- •6) Malicious Procurement and Execution of a Search Warrant
- •7) Abuse of Process
- •9) Privacy
- •10) Discrimination
- •12) Harassment
- •13) Defences to the Intentional Interference with the Person
- •III) Defence of a Third Person
- •V) Discipline
- •VI) Necessity
- •VII) Legal Authority
- •VIII) Illegality: Ex Turpi Causa Non Oritur Actio
- •II) Contributory Negligence
- •1) Elements of Liability
- •2) Defences to the Intentional Interference with Land
- •3) Remedies
- •4) Trespass to Land and Shopping Malls
- •5) Trespass to Airspace
- •E. Intentional interference with chattels
- •1) Trespass to Chattels
- •3) Conversion
- •4) The Action on the Case to Protect the Owner's Reversionary Interest
- •5) An Illustrative Case: Penfold's Wines Pty. Ltd. V. Elliott
- •6) The Recovery of Chattels
- •F. Intentional interference with economic interests
- •1) Deceptive Practices
- •II) Conspiracy to Injure by Unlawful Means
- •I) Direct Inducement to Breach a Contract
- •II) Indirect Inducement to Breach a Contract
- •Intentional Interference with the Person
- •Barry j. Reiter Melanie a. Shishler
- •1) Elements of Liability
- •2) Defences
- •Barry j. Reiter Melanie a. Shishler
- •1) The Elements of Liability
- •3) Dogs
- •4) The Scienter Action and Negligence
- •Barry j. Reiter Melanie a. Shishler
- •1) Elements of Liability
- •2) Defences
- •Barry j. Reiter Melanie a. Shishler
- •2) Principal and Agent
- •3) Statutory Vicarious Liability
- •4) Independent Contractors
- •In Lewis (Guardian ad litem of) V. British Columbia, [Note 50:
- •5) Liability of the Employee or the Agent
- •Barry j. Reiter Melanie a. Shishler
- •Chap.6 Contents
- •1) Physical Damage to Land
- •2) Interference with Enjoyment and Comfort of Land
- •7) Defences
- •8) Remedies
- •1) The Definition of a Public Nuisance
- •A. Introduction
- •2) Reference to the Plaintiff
- •3) Publication
- •E. Defences
- •2) Privilege
- •3) Fair Comment on a Matter of Public Interest
- •F. Remedies
- •H. The next challenge: political speech
- •A. Introduction
- •1) Contract Law and Tort Law
- •2) Fiduciary Law and Tort Law
- •3) Restitution and Tort Law
- •C. Public law
- •1) The Charter of Rights and Freedoms and Tort Law
- •A. The centrality of the tort of negligence
- •B. The dynamism of the tort of negligence
- •C. Generalization and integration
- •D. Reform and modernization
- •E. The triumph of compensation and loss distribution policies
- •Ison, t.G., The Forensic Lottery: a Critique on Tort Liability as a System of Personal Injury Compensation (London: Staples Press, 1967)
- •Intentional conduct of a public official in abuse of her power, or knowingly beyond the scope of her jurisdiction, causing damage to the plaintiff.
- •Preface
- •Philip h. Osborne
3) Fair Comment on a Matter of Public Interest
The defence of fair comment on a matter of public interest provides a vital degree of protection of the robust discussion for all matters in the public domain. It is the dominant concept in restoring the balance between free speech and a free media on the one hand and reputation on the other. There are a number of elements to the defence which require amplification.
The defendant must first establish that the defamatory statement is one of comment or opinion and that it would be interpreted as such by the ordinary reader or listener. The defence does not extend to statements of fact. The distinction is important because it allows the reader or listener to recognize that the statement is a subjective assessment or opinion of the defendant with which he may or may not agree. To say that X is an immoral person is a statement of fact that must be justified. To accurately describe X's conduct and to declare it to be immoral is opinion or commentary. This hypothetical anticipates a further element of the defence of fair comment. The comment must also be based on a substratum of fact that is either communicated to the reader or is notorious.
The comment must be on a matter of public interest. A relatively generous interpretation of the term has allowed the defence to operate broadly. Matters of public interest include not only governmental actions, the conduct of public officials, and those involved in the political process. It extends to all public affairs and events such as the arts, sports, public recreational events, business ventures, religious events, and the public conduct of persons who through choice or circumstances have become public figures. Virtually all the topics that are the subject of reputable newspapers, television broadcasts, and radio talk shows are matters of public interest. However, the defence applies only to the public dimension of those activities and persons. It is a matter of public interest to discuss the performance of a public official in the discharge of her public duties but any statement about her personal life or other matters unrelated to her public office must be justified.
The comment must be fair. This does not, however, mean that it must be reasonable or balanced. Fair in this context means honest. Consequently, strong language is permissible and the harshest criticism is protected even if it has serious economic and professional consequences for its target. A theatre critic may, for example, write a savage review of a theatrical performance, which may lead to a short run and the destruction of an actor's career. So long as the review is an honest assessment by the reviewer, it is protected.
An analysis of the defence of fair comment on a matter of public interest was undertaken by the Supreme Court in Cherneskey v. Armadale Publishers Ltd. [Note 22: (1978), [1979] 1 S.C.R. 1067 [Cherneskey].] In that case, the defendant newspaper published a letter to the editor which described the attitudes of the plaintiff, a local municipal politician, as racist. There was no evidence as to whether or not the letter represented the honest beliefs of the two writers of the letter but it was established that the defendant publisher did not believe that the plaintiff's attitudes were racist. A majority of the Supreme Court held that, in such circumstances, the defence of fair comment was not available to the defendant because he did not subjectively have an honest belief in the allegation contained in the letter. This decision was criticized as an unreasonable restriction on freedom of expression in an important forum (letters to the editor) for political and social debate. It encouraged newspapers to publish only letters containing views with which they agreed. The minority adopted a more pro-defendant approach to fair comment and applied an objective test of fairness which is satisfied by establishing that the statement was one that in the circumstances might be made by a prejudiced but honest person. If such a test was satisfied, the burden of proof shifts to the plaintiff to defeat the defence by proof of the defendant's actual malice. The minority test clearly protected the defendant in Chernesky, because the statement was one that might have been made by a prejudiced but honest person and the defendant was not guilty of any malice. The wisdom of the minority view led to changes to the Defamation Acts in some provinces, including Alberta, Manitoba, New Brunswick, and Ontario. The reforms protect the publication of another's opinion contrary to the publisher's belief if the comment is one that an honest person might hold.
The defence of fair comment is lost if the plaintiff proves malice on the part of the defendant. The role of malice has, however, been diminished by the Chernesky decision, which makes proof by the defendant that the statement is his honest opinion an essential element of the defence.
4) Consent
Consent by the plaintiff to publication of the defamatory statement is a complete defence. This defence arises only in unusual circumstances but it may arise where the plaintiff has agreed to go on television or radio to discuss and refute defamatory allegations or rumours circulating about him. Publication of those statements by the media in the course of the broadcast would clearly not be actionable so long as the discussion adhered to an agreed subject matter. [Note 23: See, for example, Syms v. Warren (1976), 71 D.L.R. (3d) 558 (Man. Q.B.)]
5) Apology and Retraction
Apology and retraction are partial defences that operate to mitigate damages. An apology is recognized at common law as a mitigating factor in the award of damages and this has now been codified by provincial legislation. There are also special statutory provisions relating to apologies by newspapers and broadcasters.
Retraction is a statutory concept that applies only to newspapers and broadcasters. If there has been a full and complete retraction in compliance with the strict statutory requirements, liability is restricted to the plaintiff's actual damage.
These partial defences are of particular importance to the media, given the strict liability at common law for mistaken and innocent defamation.
CHAPTER 7, DEFAMATION