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.
[Page 476]
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.
[Page 477]
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.
[Page 478]
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?
[Page 479]
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?
[Page 480]
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
[Page 481]
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, 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:
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
[Page 483]
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 and
in Globe and Mail Ltd. v. Boland, supra. The judgment in Showler v.
Maclnnes, 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 and
Allbutt v. General Council of Medical Education and Registration. 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.
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