Supreme Court of Canada
Banks v. the Globe and Mail Ltd. et al., [1961] S.C.R. 474
Date: 1961-04-25
Harold C. Banks (Plaintiff) Appellant;
and
The Globe and Mail Limited and Oakley Dalgleish (Defendants) Respondents.
1961: March 6, 7; 1961: April 25.
Present: Kerwin C.J. and Cartwright, Martland, Judson and Ritchie JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Libel and Slander—Newspaper—Editorial concerning activities of union organizer—Defence of qualified privilege fails—Unfair comment—Rights and duties of newspapers.
The plaintiff, a vice-president of the Seafarer’s International Union of North America, brought an action for libel in connection with an editorial published in a newspaper of which the corporate defendant was proprietor and the individual defendant was editor and publisher. It was alleged that the defendants falsely and maliciously published the editorial and that the same was defamatory of the plaintiff. The defences pleaded were, inter alia, a plea of qualified privilege and a plea of the defence of fair comment. At trial, on a motion for dismissal of the action, it was ruled that the editorial was published on an occasion of qualified privilege but that there was evidence of malice to go to the jury. The jury in answer to questions put by the trial judge negatived express malice but found that the comment was unfair. The action was dismissed and this decision was affirmed by the Court of Appeal; the latter granted leave to appeal to this Court.
Held: The appeal should be allowed.
On the assumption that the allegations of facts and circumstances on which the plea of qualified privilege was founded were proved, they were not such as to render the occasion privileged. The right which the publisher of a newspaper has, in common with all Her Majesty’s subjects, to report truthfully and comment fairly upon matters of public interest was not to be confused with a duty of the sort which gives rise to an occasion of privilege. Globe and Mail Ltd. v. Boland, [1960] S.C.R. 203; Arnold v. The King-Emperor (1914), 30 T.L.R. 462; Adam v. Ward, [1917] A.C. 309; Allbutt v. General Council of Medical Education and Registration (1899), 23 Q.B.D. 400, referred to.
The proposition of law that given proof of the existence of a subject-matter of wide public interest throughout Canada, without proof of any other special circumstances, any newspaper in Canada (and semble therefore any individual) which sees fit to publish to the public at large statements of fact relevant to that subject-matter is to be held to be doing so on an occasion of qualified privilege was untenable.
APPEAL from a judgment of the Court of Appeal for Ontario, affirming a judgment of Spence J. Appeal allowed.
B.J. MacKinnon, Q.C., and L.F. Curran, for the plaintiff, appellant.
[Page 475]
C.F.H. Carson, Q.C., C.H. Walker, Q.C., and J.S. Southey, for the defendants, respondents.
The judgment of the Court was delivered by
CARTWRIGHT J.:—This is an appeal, brought pursuant to leave granted by the Court of Appeal for Ontario, from a judgment of that Court, dismissing an appeal from a judgment of Spence J. whereby the appellant’s action was dismissed with costs.
The action was for damages for libel.
The appellant is a vice-president of the Seafarers’ International Union of North America; he resides in the town of Pointe Claire in the Province of Quebec. The corporate respondent is the proprietor of a daily newspaper published under the name of “The Globe and Mail”, of which the individual respondent is the editor and publisher.
The words complained of were published as the leading editorial in the issue of “The Globe and Mail” dated Monday, November 11, 1957, and are as follows:
MISSION ACCOMPLISHED
It would seem in retrospect that Mr. Harold C. Banks, Canadian director of the Seafarers’ International Union, was brought to this country for the specific purpose of scuttling Canada’s deep sea fleet. If this was indeed the case, he has succeeded admirably. With the decision by Canadian National Steamships to strike its eight vessels on West Indian service from Canadian registry, Canada is left with only three ocean‑going merchant ships—as against the hundred or more it had when Mr. Banks took over the SIU eight years ago.
Considering his record of criminal offenses in the United States, which he diversified and extended after coming to Canada, this country has done rather well by Mr. Banks. He enjoys great power and considerable wealth, his salary being a reported $12,000 a year. Unlike most other union leaders in Canada, he does not have to go through the irritating business of getting himself re-elected at periodic intervals; indeed, he was never elected in the first place. And he has influential friends; when he applied for Canadian citizenship this year, who should show up to vouch for him but such people as Mr. Claude Jodoin, president of the Canadian Labor Congress, and Mr. Frank Hall, head of the Brotherhood of Railway Clerks.
But if Canada has done well by Mr. Banks, it cannot be said that Mr. Banks has done well by Canada. It is true that, by his forcible demands on ship owners he has made Canada’s ocean-going seamen the most highly paid in the world. But in so doing, he has put virtually all of them out of employment. With Mr. Banks directing the SIU, almost every Canadian-owned deep sea ship has been transferred to a foreign flag, and is being worked by a foreign crew.
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This will now be the case with the eight West Indies vessels of CNS, which are to be registered in Port of Spain, Trinidad. The eight ships have been tied up since last July, owing to a strike called by Mr. Banks. At the time, he demanded a 30 per cent wage increase for the SIU members working them; CNS offered 10 per cent, which it later raised to 15 per cent—not unreasonable considering that the West Indian service has run at a heavy loss for the last seven years. This latter offer was rejected by Mr. Banks even when CNS warned him that rejection would mean the registry transfer, and consequent unemployment of all the crew members concerned.
Mr. Banks’ application for citizenship is still, apparently, before the Canadian Government, which has reached no final decision in the matter. We suggest, in the light of the CNS fiasco, that the application be turned down, and Mr. Banks be sent back to the U.S. He came here to preside over the dissolution of the Canadian Merchant Marine; the Canadian Merchant Marine has been dissolved. Why, then, should he remain? His mission has been accomplished, his work is done.
The action was commenced on December 3, 1957.
In the statement of claim it is alleged that the defendants falsely and maliciously published this editorial of and concerning the plaintiff and that in its plain and ordinary meaning it is defamatory of him and of and concerning him in the way of his office as vice-president of his union. In paragraph 6, thirteen innuendoes are alleged. In paragraph 7 it is alleged that notice of complaint was served on the defendants on November 21, 1957.
In the statement of defence publication is admitted. The defences pleaded are, (i) that the words complained of in their natural and ordinary meaning are no libel, (ii) that the said words do not bear and were not understood to bear and are incapable of bearing or being understood to bear the meaning alleged in the statement of claim, (iii) a plea of qualified privilege and (iv) a plea of the defence of fair comment.
The plea of qualified privilege is contained in paragraphs 3 and 4 of the statement of defence as follows:
3. The Defendants say that the words complained of were published under the following circumstances—
The said words were published following the decision by Canadian National Steamships to transfer its eight vessels on West Indian service from Canadian Registry to a Foreign Registry on the 9th of November, 1957. In July 1957 the Seafarers’ International Union, of which the Plaintiff is the Canadian Director, called a strike which tied up the said eight vessels. After more than four months the strike was still not settled and the vessels were transferred to Foreign Registry as aforesaid, all of which was the subject of discussion and comment in the House of Commons and in the Public Press.
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4. By reason of such circumstances it was the duty of the Defendants to publish, and in the intrests of the public to receive communications and comments with respect to the strike and the resultant transfer of eight vessels from Canadian Registry and by reason of this the said words were published under such circumstances and upon such occasion as to render them privileged.
The plea of the defence of fair comment is set out in paragraphs 6 and 8 of the statement of defence as follows:
6. Insofar as the said words consist of statements of fact the said words are in their natural and ordinary meaning, and without the meanings alleged in paragraphs 6 of the Statement of Claim, true in substance and in fact; and insofar as the said words consist of expressions of opinion they are fair comment made in good faith and without malice upon the said facts which are a matter of public interest in the circumstances stated in paragraph 3.
* * *
8. In the alternative if any of the said words are capable of the meanings alleged in paragraph 6 of the Plaintiff’s Statement of Claim then they are fair comment made in good faith and without malice on a matter of public interest. The said comment was based upon the transfer by Canadian National Steamships of eight vessels from Canadian Registry to Foreign Registry in the circumstances referred to in paragraph 3.
The action was tried in June 1958. Counsel for the appellant called two witnesses, the plaintiff and a Mr. Leonard McLaughlin who was the secretary-treasurer of the Seafarers’ International Union of North America, Canadian District. Counsel then read some questions and answers from the examination for discovery of the respondent Dalgleish and closed his case.
Counsel for the respondents then moved, in the absence of the jury, for the dismissal of the action on the ground that the words complained of were published on an occasion of qualified privilege and that there was no evidence of malice to go to the jury.
It appears that before commencing his argument on this motion, counsel for the respondents had announced his decision not to call any evidence. Shortly after counsel for the appellant had commenced his argument on the motion the learned trial judge called attention to this as follows:
HIS LORDSHIP: May I interrupt you for a moment. I think it is only proper, Mr. Walker, that I should ask you, when you commenced your argument, the thing which I did ask you in chambers and therefore I omitted to ask for the record. Is it the intention of counsel for the defendants to adduce evidence?
MR. WALKER: No, my lord, I am calling no evidence.
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At a later stage of his argument on this motion counsel for the plaintiff admitted that the strike and the resultant transfer of the ships involved to foreign registry constituted a matter of public interest; but, as I read the record, counsel did not admit that the statements and comments made about the plaintiff were made on a matter of public interest. This accords with the position taken by counsel in his opening to the jury in the course of which he said:
We shall also contend throughout this trial that what was said about Mr. Banks was not said on a matter of public interest; that it was substantially a personal attack and not mere comment or expressions of opinion on a matter of public interest.
These circumstances have a bearing on the submission of counsel for the respondents, to be mentioned later, that counsel for the plaintiff at the trial had in effect admitted that the editorial was published on an occasion of qualified privilege.
At the conclusion of the argument on the motion the learned trial judge ruled that the editorial was published on an occasion of qualified privilege but that there was evidence of malice to go to the jury.
In his charge the learned trial judge made it clear to the jury that they had the right to bring in a general verdict but he invited them to answer a number of questions and the jury followed this course. The questions and answers are as follows:
1. Were the statements complained of and set out in Exhibit 1 under the circumstances in which they were used, defamatory of the plaintiff?
Answer “Yes” or “No”.
Answer: Yes.
2. (a) Insofar as the statements are of fact were they all true?
Answer “Yes” or “No”.
Answer: No.
(b) Insofar as the statements are expressions of opinion did they exceed the limit of fair comment? Answer “Yes” or “No”.
Answer: Yes.
3. Do the words complained of and set out in Exhibit 1 mean—
(a) that the plaintiff came from the United States to Canada for the specific purpose of ending the existence of Canadian ships at sea, contrary to the interests of members of his Union and the people of Canada?
Answer “Yes” or “No”.
Answer: Yes.
(b) that the plaintiff committed a substantial number of criminal offences in the United States?
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Answer “Yes” or “No”.
Answer: Yes.
(c) that the plaintiff has committed a substantial number of criminal offences of diverse kinds after coming to Canada?
Answer “Yes” or “No”.
Answer: No.
(d) that the plaintiff is a dictatorial and irresponsible union officer not subject to removal or re-election by the membership of his Union?
Answer “Yes” or “No”.
Answer: Yes.
(e) that the plaintiff has used threats of force in making demands upon Canadian ship owners?
Answer “Yes” or “No”.
Answer: No.
(f) that the plaintiff has caused loss of employment to be suffered by most or all of Canada’s ocean-going seamen?
Answer “Yes” or “No”.
Answer: Yes.
(g) that the plaintiff, on his own initiative and without the authority of the membership of his Union, called a strike against Canadian National Steamships?
Answer “Yes” or “No”.
Answer: No.
(h) that the plaintiff, on his own initiative and without reference to the membership of his Union, demanded a 30 per cent wage increase for such members.
Answer “Yes” or “No”.
Answer: No.
(i) that the plaintiff, on his own initiative and without reference to the membership of his Union, rejected an offer of a 10 per cent wage increase?
Answer “Yes” or “No”.
Answer: No.
(j) that the plaintiff, while posing as a representative of working seamen, was indifferent or hostile to their interests?
Answer “Yes” or “No”.
Answer: No.
(k) that the plaintiff deliberately used an office of trust held by him to cause injury and loss to the membership of his Union by whom he was employed?
Answer “Yes” or “No”.
Answer: No.
(l) that the plaintiff is an unfit person to be granted Canadian citizenship?
Answer “Yes” or “No”.
Answer: Yes.
(m) that the plaintiff is an unfit person to be permitted to reside in Canada?
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Answer “Yes” or “No”.
Answer: Yes.
4. If you have answered “Yes” to any of the sub-questions in 3 above, does such meaning exceed the limit of fair comment?
Answer “Yes” or “No”.
Answer: Yes.
5. When the defendants published this statement were they actuated by any motive other than their duty to publish communications and comments on a matter of public interest?
Answer “Yes” or “No”.
Answer: No.
6. At what amount do you assess the damages of the plaintiff?
$3500.00 (Thirty‑five hundred dollars).
Upon these answers the learned trial judge directed judgment to be entered dismissing the action with costs.
The appellant appealed to the Court of Appeal. The first ground set out in the notice of appeal was:
That the learned trial judge erred in holding that the words complained of were protected by the defence of qualified privilege.
Laidlaw J.A., who delivered the unanimous judgment of the Court of Appeal, in summarizing the grounds of appeal presented in argument before that Court described the first of those grounds as follows:
First, that the decision of the learned trial Judge that the occasion was one of qualified privilege, was erroneous, or, in the alternative, that the learned Judge ought to have found that part of the published article was within the privilege and part of it was not within the privilege;
I have reached the conclusion that the learned trial judge and the Court of Appeal were in error in holding that the occasion on which the editorial was published was one of qualified privilege and consequently do not find it necessary to consider the other grounds urged by Mr. MacKinnon in support of the appeal.
The reasons of the learned trial judge for holding that the occasion was privileged are as follows:
The first branch of the application may be disposed of very shortly. I think it is quite evident by consideration of the cases cited by counsel for the defendant, particularly Jenoure vs Delmege, [1891] Appeal Cases 73; Pittard v. Oliver, [1891] 1 Queen’s Bench 474; Mangena vs Wright, [1909] 2 King’s Bench 958; Adam vs Ward, [1917] Appeal Cases 309; Showler vs Maclnnes, [1937] 1 Western Weekly Reporter 358; Dennison vs Sanderson, [1946] Ontario Reports 601; and Drew vs Toronto Star, [1947] Ontario Reports 730; that the class of cases to which the defence of qualified privilege extends have, during the course of recent years, been extended, and
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that that extension will cover editorial comment by a metropolitan newspaper upon matters of public interest. It is difficult to conceive a matter in which the public would be much more interested in the year 1957 than the most important topic of industrial relations, when added to that there is the topic of the continued existence of a deep-sea fleet under Canadian registry. The latter topic, in fact, had so interested the public that it was included in a reference of matters to a Royal Commission, the report of which had not yet been rendered at the time of this alleged libel.
There is no more efficient organ for informing the public and for disseminating to the public intelligent comment on such matters of public interest, than a great metropolitan newspaper, which the plaintiff has proved the defendant to be. The members of the public have a real, a vital—I might go so far as to say—a paramount interest in receiving those comments.
The decision of Mr. Justice Manson in Showler vs Maclnnes has been critized but I feel that his words are most applicable to the particular situation which existed here, and I propose to adopt those words in this case where he said:—
The whole citizenhood of Vancouver has and had at the time of the address in question a vital concern in the matter of industrial relations in the community and in knowing under what circumstances strikes might be called.
adding the comment that for “all the citizens of Vancouver” I would insert “citizens of Canada”.
The statement of the rule as to the burden of proof where a defence of qualified privilege is set up, contained in Gatley on Libel and Slander, 4th edition, at page 282 (stated in the same words in the 5th edition of that work at page 270) was approved by this Court in Globe and Mail Ltd. v. Boland[1], and is as follows:
Where a defence of qualified privilege is set up, it is for the defendant to allege and prove all such facts and circumstances as are necessary to bring the words complained of within the privilege, unless such facts are admitted before or at the trial of the action. Whether the facts and circumstances proved or admitted are or are not such as to render the occasion privileged is a question of law for the judge to decide.
In the case at bar the evidence of the plaintiff shewed that the strike referred to in the editorial had commenced in July 1957 and that it had not been settled at the date of the trial. His evidence in cross-examination continued:
Q. So that when the defendant says in the Statement of Defence that after four months the strike was still not settled, that is correct.
A. That is correct.
Q. And you also told us that the vessels were transferred to foreign registry. Now, Mr. Banks, I suppose you read the newspapers, do you?
A. Occasionally.
[Page 482]
Q. And was there considerable newspaper publicity with reference to this strike and with reference to the transfer of the vessels?
A. There was.
Q. And was there discussion in the House of Commons with reference to the strike and the transfer of the vessels?
A. There was.
It has already been mentioned that counsel for the plaintiff admitted that the strike and the transfer of the ships involved to foreign registry constituted a matter of public interest.
I do not find it necessary to consider whether the allegations of fact on which the plea of qualified privilege was founded were sufficiently proved. If it be assumed for the purposes of argument that all the facts and circumstances alleged in paragraphs 3 and 4 of the statement of defence were proved it is my opinion that they were not such as to render the occasion privileged.
With the greatest respect it appears to me that in his reasons quoted above the learned trial judge has fallen into the same error as was pointed out in the judgment of this court in Globe and Mail Ltd v. Boland, supra, at p. 207, and has confused the right which the publisher of a newspaper has, in common with all Her Majesty’s subjects, to report truthfully and comment fairly upon matters of a public interest, with a duty of the sort which gives rise to an occasion of privilege. It is not necessary to refer again to the authorities discussed in the case last cited, but I think it desirable to recall the passage from the judgment of Lord Shaw in Arnold v. The King-Emperor[2]:
The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but apart from statute law, his privilege is no other and no higher. The responsibilities which attach to his power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful; but the range of his assertions, his criticisms, or his comments, is as wide as, and no wider than, that of any other subject. No privilege attaches to his position.
The following statement in Gatley on Libel and Slander 5th ed., at pages 322 and 323 is, in my opinion, accurate:
The defence of fair comment must also be distinguished from that of qualified privilege. In the defence of fair comment the right exercised by the defendant is shared by every member of the public. Who is entitled to comment? The answer to that is ‘everyone’. A newspaper reporter or
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a newspaper editor has exactly the same rights, neither more nor less, than every other citizen. In that of qualified privilege the right is not shared by every member of the public, but is limited to an individual who stands in such relation to the circumstances that he is entitled to say or write what would be libellous or slanderous on the part of anyone else. For instance, if a master is asked as to the character of a servant, and he says that the servant is a thief, he has a privilege which no one else would have. A privileged occasion is one on which the privileged person is entitled to do something which no one who is not within the privilege is entitled to do on that occasion. A person in such a position may say or write about another person things which no other person in the kingdom can be allowed to say or write. But, in the case of a criticism upon a matter of public interest whether it be the conduct of a public man or a published work, every person in the kingdom is entitled to do, and is forbidden to do exactly the same things, and therefore the occasion is not privileged.
The judgments given at trial in the cases of Dennison v. Sanderson, supra, and Drew v. Toronto Star, supra, relied on by the learned trial judge, in so far as they deal with the question of qualified privilege, must be regarded as having been overruled by the judgments of this Court in Douglas v. Tucker[3] and in Globe and Mail Ltd. v. Boland, supra. The judgment in Showler v. Maclnnes[4], is, in my opinion, inconsistent with the two last mentioned judgments of this Court and with our judgment in the case at bar and ought not to be followed. The other decisions referred to in the reasons of the learned trial judge are all distinguishable on their facts from the case at bar.
There are of course many cases in which publication of defamatory matter in a newspaper may be privileged either by statute or at common law; examples are to be found in The Libel and Slander Act, R.S.O. 1950, c. 204, ss. 9 and 10, and in such cases as Adam v. Ward[5] and Allbutt v. General Council of Medical Education and Registration[6]. In the first of these it was held that the Army Council owed a duty to publish to the whole world a letter vindicating a General who had been falsely accused before the same audience of discreditable conduct and that publication in the press was therefore privileged; in the second it was held that publication in the press of an accurate report of proceedings within the jurisdiction of the General Medical
[Page 484]
Council erasing the name of the plaintiff from the medical register was privileged on the ground, inter alia, that it was the duty of the Council to give the public accurate information as to who is on the register and if a person’s name is erased accurate information of the cause of its erasure.
The decision of the learned trial judge in the case at bar, quoted above, appears to involve the proposition of law, which in my opinion is untenable, that given proof of the existence of a subject-matter of wide public interest throughout Canada without proof of any other special circumstances any newspaper in Canada (and semble therefore any individual) which sees fit to publish to the public at large statements of fact relevant to that subject-matter is to be held to be doing so on an occasion of qualified privilege.
Having reached the conclusion that the learned trial judge was in error in deciding that the editorial complained of was published on an occasion of qualified privilege, it is not necessary to consider what judgment should have been given on the answers of the jury had the ruling of the learned trial judge been upheld; but I do not wish to be understood as agreeing that even in that event the action should have been dismissed; while the plea of qualified privilege and the answer of the jury negativing express malice would, on the hypothesis mentioned, have afforded a defence to the action in so far as it was based on the publication of defamatory statements of fact there remained the finding of the jury that the comment (and the editorial consisted partly of comment) was unfair. However, I do not pursue this question further.
It remains to consider what order should be made. Counsel for the respondents argued that if we should hold the publication was not made on an occasion of qualified privilege a new trial should be directed; this argument was based in part on the submission that at the trial counsel for the plaintiff had admitted that the occasion was one of qualified privilege. I have read all the record with care and cannot find that any such admission was made. Doubtless both counsel at the trial were familiar with the ruling which had been made by the learned trial judge a short time before in the case of Boland v. The Globe and Mail Ltd.,
[Page 485]
supra, and, perhaps for that reason, counsel for the plaintiff concentrated his argument on the submission that even if the occasion was one of privilege the bounds of the privilege had been exceeded. The following passage at the end of the argument of the motion, and particularly the words I have italicized, would be inconsistent with the view that the learned trial judge considered that any such admission had been made.
Mr. JOLLIFFE: Therefore the gist of my submission is that even if the Court holds the occasion to be a privileged one, the editorial…
His LORDSHIP: In short, even if the Court holds it is qualified privilege, qualified privilege only exists for the purpose for which the privilege is set up.
Mr. JOLLIFFE: Exactly, my lord.
His LORDSHIP: And if the motive goes beyond that, it is evidence of malice to go to the jury.
Mr. JOLLIFFE: Exactly, my lord. That is what I am attempting to say.
His LORDSHIP: I understand that.
I am unable to find any sufficient ground for directing a new trial; I have given my reasons for holding that the defence of qualified privilege fails; the answers of the jury negatived the defence of fair comment; the error in law which, in my respectful opinion, was made by the trial judge was not one which would cause the jury to increase the amount of the damages or would otherwise prejudice the position of the respondents.
I would allow the appeal, set aside the judgment of the Court of Appeal and that of the learned trial judge and direct that judgment be entered for the plaintiff for $3500 with costs throughout.
Appeal allowed with costs.
Solicitors for the plaintiff, appellant: Jolliffe, Lewis, Osler & Gilbert, Toronto.
Solicitors for the defendants, respondents: Macdonald & Macintosh, Toronto.