Sykes v. Fraser, [1974] SCR 526

Supreme Court of Canada

Sykes v. Fraser, [1974] S.C.R. 526

Date: 1973-06-05

J. Rodney Sykes (Defendant) Appellant;

and

Robert P. Fraser (Plaintiff) Respondent.

1972: December 11, 12, 13; 1973: June 5.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Defamation—Solicitor acting for land developers in negotiations with municipality—Proposed shopping centre approved by City Council—Group later collectively castigated by mayor in public statement—Allegations of breach of faith and deception—Solicitor’s libel action successful.

The plaintiff was the lawyer and chief negotiator for two companies in negotiations with a municipality concerning a general development plan and a proposed shopping centre. The suggested closure of a traffic artery to the north of the shopping centre was the main outstanding difference between the developers and the city. At a meeting of City Council the plaintiff stated that he could give no assurance that the centre would be built if the street in question were closed, but that his instructions were that it would be built if the street were left open, and in the result Council approved the shopping centre plan on this basis.

The mayor was absent from the Council meeting at the time the shopping centre matter was discussed. Later, however, this matter was the subject of two press conferences in the course of which the mayor made allegations of “breach of faith” and “deception of Council and myself”. A statement by the mayor indicated that, following his election, he had been told by the principal developer that the latter “couldn’t care less” about the traffic artery and that it was immaterial to him whether or not it was closed. The plaintiff alleged that what was published as a result of the two press conferences was defamatory of him in falsely imputing bad faith, improper tactics and deception, and thus impugning his character, and his honesty and integrity as a member of a profession. The trial judge found in the plaintiff’s favour and awarded “punitive and aggravated” damages in the

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total sum of $10.000. His judgment was affirmed on appeal.

The appeal of the defendant mayor to this Court was first argued before a Bench of five but was later reheard by the full Court for the purpose of hearing argument on the following question:

Whether one member of an associated group of three persons may succeed in a libel action where

(1) the group is collectively castigated in a public statement;

(2) the castigation is not actionable by the other two;

(3) he is not singled out for particular mention in the statement;

(4) the castigation is made because of a commitment on a public matter by his associates made to the publisher of the statement but which he, as their spokesman, denies or from which he recedes; and

(5) he is unaware at that time of the commitment made by his associates.

Held (Hall, Spence, Pigeon and Laskin JJ. dissenting): The appeal should be dismissed.

Per Fauteux C.J. and Abbott, Martland, Judson and Ritchie JJ.: As a result of a meeting with spokesmen for the development companies, the mayor was fully aware, more than two weeks before the City Council meeting, that the attitude of the developers was that which was later stated to the Council by the plaintiff. This being the case, there was no breach of faith by either the developers or the plaintiff and no deception was practised on either the Council or the mayor. The words complained of were defamatory and the defence of qualified privilege could not be claimed for the occasions upon which the defendant made his publications.

As to the first two items of the above question, the group was collectively castigated by the defendant’s statement, but it was by no means certain that the castigation would not have been actionable by the other two members of the group, and in any event it would not have been desirable to make a final disposition of the question in these proceedings. As to the third item, when the words used in the defendant’s statement were read in light of the circumstances giving rise to their use, they were clearly capable of referring to the plaintiff and did in fact refer to him.

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Accordingly, he was, in fact, singled out for particular mention in the statement.

As to the fourth item, no commitment was made by any member of the group in relation to the closing of the street north of the shopping centre.

As to the fifth item, whether the plaintiff was acting as solicitor, spokesman or real estate agent for the developers, and whether or not the alleged commitment had been made, his lack of knowledge of such commitment would divorce him from his associates so that if, acting in good faith and on his principals’ instructions, he made representations which turned out to be misleading and a breach of faith on the part of his principal, he could not be stigmatized as one who had misled and deceived the body which he was addressing without having any recourse to an action for defamation.

Per Hall, Spence, Pigeon and Laskin JJ., dissenting: The answer to the question posed should be in the negative. The plaintiff as a spokesman for clients who proved to be faithless—apparently to him as well as to the defendant—could not at one and the same time be their spokesman in a matter of mutual concern to them and to the defendant, and yet stand apart from them in that very matter when they were rightly charged with breach of faith in terms that embraced him with them but not separately. This was not a case where the plaintiff had been singled out as one who had broken faith or had acted discreditably either as a person or as a professional man.

[Capital and Counties Bank Ltd. v. Henty & Sons (1882), 7 App. Cas. 741; Bulletin Co. Ltd. v. Sheppard (1917), 55 S.C.R. 454, referred to.]

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], dismissing an appeal from a judgment of Lieberman J. in favour of the plaintiff in a libel action. Appeal dismissed, Hall, Spence, Pigeon and Laskin JJ. dissenting.

J. Stein and R.A. Mackie, for the defendant, appellant.

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J.H. Laycraft, Q.C., and H.M. Kay, for the plaintiff, respondent.

The judgment of Fauteux C.J. and Abbott, Martland, Judson and Ritchie JJ. was delivered by

RITCHIE J.—This is an appeal from a judgment of the Appellate Division of the Supreme Court of Alberta which affirmed the judgment rendered at trial by Lieberman J., whereby he awarded damages to the respondent in the sum of $10,000 in respect of defamatory statements about him which were found to have been made and published by the appellant.

The defamatory statements were published at the height of what has been referred to as a “nice hot political issue” in the municipal government of the City of Calgary and this is undoubtedly a case in which it is desirable to understand the background against which these statements were made.

The plaintiff, who is the respondent in this appeal, was a barrister and solicitor in good standing whose practice was largely concerned with “land development, subdivision of land, planning and major mortgage work”, in which capacity he had incorporated Carma Developers Limited and was the lawyer and chief negotiator for that company and R.C. Baxter Limited of Winnipeg, in negotiations with the City of Calgary which took place between July and September, 1969, concerning the subdivision and development of an area to the northwest of the city which was a Carma project and creation of a “northwest Market Mall” which basically consisted of a regional shopping centre with two department stores to be built on 45 acres of land by the R.C. Baxter Ltd. interests.

On October 15, 1969, the appellant, who was a real estate developer, investor and manager, was elected mayor of the city in an election where he states:

The principal issues were housing, taxes and planning, and in respect of planning specifically the

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proposition that residential neighbourhoods should be protected from traffic, and that is if the rights of home-owners and home-buyers to the quiet enjoyment of the homes in which they have placed their savings should be protected, and that it was City Council’s obligation to offer them this protection. Apart from that there was one overrriding proposition, I think, which simply was that public business should be done in public.

At the time when the mayor was elected the negotiations concerning the shopping centre had reached a point where consideration was being given by all concerned to submitting the project to the City Council for approval. The mayor had not concerned himself with the details of the plan and in particular he was not familiar with the road patterns in the area, but during his election campaign he had discussed what he referred to as “this 40th Avenue problem” with a group of his constituents. As this “problem” and commitments allegedly made concerning it are central to the whole issue in this appeal, it is as well to understand that at the time of the election the “problem” was concerned with the question of whether 40th Avenue should be extended to the west of 53rd Street to serve the new development proposed by the Carma interests in that area, or whether it should be closed off at 53rd Street. This question was of no importance to the Baxter company whose concern was limited to obtaining approval for the construction of the shopping centre. The matter is well described in the evidence of Hamilton, who was the commissioner of Operations and Development for the City of Calgary, and who said that:

Somewhat independently of the developments on the shopping centre, as it was then proposed, Carma Developers Limited were proposing to extend their residential development to the west of 53rd Street which, at that time, was the western limit of the newly developed Varsity Village and Varsity Acreage sub-divisions. To serve this prospect of new residential development, it was proposed to extend 40th Avenue, as the principal carrier. 40th Avenue had not been shown extending west of 53rd Street in previously published brochures that Carma had prepared for the purpose of selling and promoting their existing subdivisions, and the residents of the area, noting this intention to extend 40th Avenue, began to express

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great concern that 40th Avenue would, in fact, become a very heavily travelled street to the detriment of their houses, particularly those located directly on it, and would have other undesirable effects, if this were so, of splitting school districts, so that children would be required to cross this heavily travelled street and so on. In short, the question of the extension of 40th Avenue was becoming a nice, hot local political issue.

Mr. Hamilton added that this growing problem was of course of great concern to the mayor. This was the only 40th Avenue problem known to either the mayor or the Baxter interests on the day after the election (October 16th) and there is really no dispute about the fact that the question of whether or not 40th Avenue was to be extended beyond 53rd Street or closed off at that point was of no importance to the shopping centre project, nor did the respondent so represent it at any time.

It was not until the end of a meeting held on October 22nd at which the Mayor presided, accompanied by Hamilton and his executive assistant and attended by Mr. Waisman, who was authorized to speak for the Baxter interests, Mr. Combe of Carma and the respondent, that it was for the first time suggested by one of the city administrators concerned with road patterns, that 40th Avenue should be closed off or dead-ended directly to the north of the shopping centre. It is not quite clear in what words Mr. Waisman expressed himself, but there is no doubt from reading the evidence of the respondent and Mr. Hamilton, that he did not agree with this suggestion and in fact, as will hereafter appear, he was not in any position to do so at that time. As the respondent said: “He did not want it closed. Obviously, closure of that Street as a major street would affect traffic, or could affect the traffic pattern considerably.”

The mayor must have known that the question of approval of the shopping centre agreements had been placed on the agenda for the City Council meeting on November 10th and at that time he must also have known from the

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discussions that had taken place on October 22nd that the developers were opposed to closure of 40th Avenue north of the centre and that this was the main outstanding difference between the developers and the city. At the Council meeting the respondent, as the sole spokesman on behalf of the Baxter interests, made representations which were in accordance with the discussions that had taken place on October 22nd, but by the time that this matter was discussed, the mayor had absented himself due to a previous engagement and he thus had no first hand knowledge of what was said. On being questioned by the deputy mayor, the respondent stated that he could give no assurance that the shopping centre would be built if 40th Avenue were closed to the north of it, but that his instructions were that it would be built if the avenue were left open, and in the result the City Council approved the shopping centre plan on this basis by a vote of 7-4.

It was against this background of fact that on November 12th the mayor called together a special press conference of all the news media representatives for the purpose of publishing the first of his statements containing part of the alleged libel of which the respondent complains in this action. The only reason that this conference was not called until the 12th was that, as the mayor explained, November 11th was a holiday and he was engaged in representational duties from which he did not return until 3 or 4 o’clock in the morning, so that it was not until the next day that he was able to address himself to the question of the City Council vote on the 10th. He was then very angry and later in the day, after writing out a statement in long hand, he proceeded with arrangements to give it the widest possible publicity.

His statement is comparatively long and as it has been reproduced in the reasons for judgment of both the Courts below (see [1971] 1 W.W.R. 246 at pp. 252-3 and [1971] 3 W.W.R. 161 at pp. 171-3), I do not think that anything is to be gained by repeating it in full. The gist of the appellant’s statement in so far as it affects

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the respondent is that on the day after his election (October 16th) in the course of a long distance conversation with R.C. Baxter, who was in Toronto, the latter said that he “could not care less about 40th Avenue; that it had never been of any importance to the shopping centre project and that he would have no objection to 40th Avenue being closed if that were Council’s wish.” The statement later continued to describe a meeting at which Waisman and the respondent were present and it is said that “Mr. Waisman said that he agreed with Mr. Baxter that 40th Avenue was not of great importance to the shopping centre project…”. There later follows the statement that at the Council meeting that considered the agreement, the developers “did not make it clear that 40th Avenue did not matter to them…”, and finally, the mayor recounts a telephone conversation in which he told Baxter that “I consider there to be a serious breach of faith in his firm’s handling of the matter”. It is perhaps as well to reproduce the whole of the paragraph in which this last statement is made:

I telephoned Mr. Baxter on the morning of November 12 and told him that I was shocked at the approach adopted by his representatives, who had handled matters very skilfully indeed in my absence from Council, and that I considered there to be a serious breach of faith in his firm’s handling of this matter. I told Mr. Baxter that I would make a statement to this effect late in the afternoon failing my receiving a wire confirming that he had no objection to Council dealing with 40th Ave. on its own merits. Mr. Baxter, and Mr. Waisman (two conversations in the same day) confirmed my understanding of what I said to them and what they said to me—but they said that they hadn’t realized that I thought it was so important, or that I took their statements as commitments.

Mr. Baxter stated that Mr. Fraser had been authorized to accept ratification of the agreement conditional on closing 40th Ave. I do not believe that Council understood that this was the position when it voted on Monday night.

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As will hereafter appear, I consider that these two paragraphs of themselves constitute singling Fraser out by name as a lawyer who could not be relied upon to carry out his client’s instructions and whose failure to do so constituted a serious breach of faith.

The following excerpts from the mayor’s statement of November 12th are complained of as being libellous to the respondent:

(a) Had I been present, as unfortunately I was not, I would have been able to deal effectively with the tactics adopted by the developers…

(b) I telephoned Mr. Baxter on the morning of November 12th and told him I was shocked at the approach adopted by his representatives who had handled matters very skilfully, indeed, during my absence from Council and that I considered there to be a serious breach of faith in his firm’s handling of the matter.

The day after the mayor had summoned his special press conference and made his statement, a regular City Hall press conference was held which took the form of a question and answer interview during the course of which the mayor made the following statements to the press, radio and TV concerning the Council meeting on November 10th which are also complained of as being libellous to the respondent:

(c) The matter had not been settled if the Council has been misled.

(d) There has been no misunderstanding on what was said. In my opinion they were practising deception of Council and myself.

(e) The question is are they going to do business in Calgary with their cards on the table, or continue the games they are playing?

I think it important to appreciate that the mayor was first made aware of the proposal to close off 40th Avenue to the north of the centre towards the end of the meeting of October 22nd and that Mr. Waisman, speaking on behalf of the Baxter organization, then made it clear that such closure could not be agreed to.

Like the Courts below, I accept the respondent’s version of what took place at that meeting

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and I think it desirable to reproduce a substantial part of his evidence in this regard:

Q. Would you describe what went on at the meeting?

A. I can’t give you the exact conversation, but in general my recollection is that Mr. Hamilton, who was there representing the City administration, indicated that the meeting, that we were there to discuss the Northwest Market Mall, but that so far as the City administration was concerned, the development agreements had been proceeded with to the point that they were ready to go to City Council, and that so far as the developers were concerned it was a matter of some urgency that they get on. I think that the Mayor acknowledged that he was aware of some of the background of the Northwest Market Mall. He pointed out to us that he had just been elected by a very substantial majority, but that during the course of his election campaign he had heard numerous objections from citizens relating to 40th Avenue, or the Northwest Sector Plan, I suppose and/or the shopping centre, although I don’t think the shopping centre was specifically objected to; that so far as he was concerned he was not personally familiar with the contents of the agreements the arrangements that had been arrived at by the city with the developers; that he had not had time to digest them, that they were complicated, and that he was, I think he indicated that he was prepared to accept them, that he would not second guess the people who had approved them on behalf of the City. Those words ‘second guess’ are an exact quotation.

The respondent went on to recount the discussion concerning 40th Avenue saying:

However, what was discussed was the question of where, of whether 40th Avenue would be closed, that is would not be extended west of 53rd Street.

* * *

The areas to the west of 53rd Street were designated for future development, for future residential areas, which would house large numbers of people. I think that basically the objection which had been raised by at least some of the citizens was that by bringing 40th Avenue in from the west it would make the portion of

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40th Avenue that is shown on this photograph as existing a major thoroughfare. I am not certain that that is accurate as far as terminology is concerned, but it would carry a lot more traffic than they wanted it to carry. Both Mr. Combe and Mr. Waisman, speaking for their respective companies, indicated that they and their companies had no objection to any manhandling that the City might choose to make to 40th Avenue West of 53rd Street; it could be dead ended, it could have been put out as the City planning department wanted and as the then plans projected, it could have been in effect looped around to the north; there was no objection, and both Mr. Waisman and Mr. Combe spoke to that point. Then, and this was close towards the close of the meeting, my recollection is that the Mayor took no part in those discussions, although the comments were in fact addressed to the Mayor. Towards the close of the meeting Mr. Cornish, who, as I have said, was the person in the City Administration who really had the day to day conduct of these things, and was in effect the trouble shooter for the Board of Commissioners, asked Mr. Waisman, or pointed to a plan which was laying on the Mayor’s desk, I don’t recall whether it was open or not, it had not been involved in the conversation previously, but he pointed to the plan and said to Mr. Waisman, “Would you have any objections to closure of 40th Avenue…” now I don’t recall whether he said here or north of the shopping centre, but he pointed to the plan and I will mark the letter “X” to the general area that he was referring to. Mr. Waisman’s reply to that was immediate and completely negative.

This was a clear reference to the suggestion that 40th Avenue should be closed to the north of the shopping centre and the point marked “X” had become generally referred to at City Hall as “check point Charlie.”

As I have indicated earlier, there is some doubt as to the exact words used by Waisman in disagreeing with the closure of 40th Avenue north of the shopping centre, and in the final stages of his examination the respondent indicated that he could not remember Waisman having actually said “No”. It is, however, clear from the evidence of Hamilton that Waisman, speaking for the company, not only did not but could not agree to the proposed closure because

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at the time of the meeting the company that they expected to take a lease on the northern of the two departmental stores, which were the anchors of the centre, had not agreed to the proposal.

It is interesting to note what the mayor had to say about the proposal to dead-end 40th Avenue. In the course of his evidence he said, in part:

Now, there was a map placed on the corner of my desk, and the desk was a thing of black marble about 8 feet long, and a long way from me, and this plan showed a particular traffic solution that was, I believe, what Commissioner Hamilton referred to as Check Point Charlie. It was the pet baby of Alderman Petrasuk, I think, and perhaps some other people in the City Hall, I didn’t address myself to it at all, and they started to discuss this. Towards the end of the meeting I suggested that they carry on their technical discussion outside my office, I wanted no part of it, so they went out, all of them, still carrying their plan and their bits of paper and still talking.

The mayor later said of Waisman’s conduct at the meeting:

He wasn’t concerned with policy and he wasn’t concerned with Dick Baxter and Baxter’s conversations with me,…

Waisman was the man of whom the respondent said in relation to the shopping centre negotiations between the company and the city:

He was the principal, the man who so far as the Baxter/Waisman organization was concerned had the conduct of the matter.

The learned trial judge, who accepted Fraser’s version of what took place, described the proceedings at the meeting as follows:

The plaintiff says that the question of 40th Ave., N.W. was dealt with at the meeting but that the point in issue was its extension to the west of 53rd St. and the objections that the residents would have because of the resulting increased traffic flow. Combe and Waisman indicated that they would have no objection to such an extension.

The defendant, according to the plaintiff, took no part in this discussion although some remarks were

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addressed to him. He says that towards the end of the meeting, which lasted for approximately one half hour, Cornish pointed to a plan lying on the defendant’s desk, and asked Waisman if he would have any objection to the closure of 40th Ave. N.W. at a point north of the shopping centre. This point is marked “X” on the plan, Exhibit No. 12. Waisman immediately replied that the developers did not want 40th Ave. N.W. closed at this point. This was the first time that the plaintiff had heard of this suggestion. He felt that the purpose of this meeting was to get the project before City Council at the earliest possible date.

In the course of his press release of November 12th, the mayor made the following statements concerning the meeting that he had held with Waisman and several of his associates (Messrs. Combe and Fraser):

(i) Mr. Waisman then said that he agreed with Mr. Baxter and that 40th Avenue was not of great importance to the shopping centre project and he said further that the 40th Avenue situation had been produced by City Hall and not by the shopping centre project.

(ii) I made it clear that this position, that the Council could deal with 40th Avenue (close it or leave it open) independently of the shopping centre must be clear to Council - - - that the developers must make it clear that 40th Avenue did not matter to them and on that basis I believed that I could support the project.

The respondent gave the following evidence concerning the allegation that these statements had been made at the meeting:

Q. Going on with the statement: “Mr. Waisman then said that he agreed with Mr. Baxter…” Did he say that?

A. No.

Q. “…that 40th Avenue was not of great importance to the shopping centre project;” Did he say that?

A. No, sir. If any—any statement Mr. Waisman made with relation to 40th Avenue, other than the democracy bit that I referred to, was made with relation to 40th Avenue West of 53rd Street.

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Q. Going on with the statement and quoting again: “…and he said further that the 40th Avenue situation had been produced by City Hall and not by the shopping centre project.” Was that said?

A. The location of 40th Avenue west of 53rd Street was a decision made by City Hall, that is accurate.

Q. Going on with the statement and reading it, it is in the first person: “I made it clear…” that is the Mayor, “I made it clear that this position, that council could deal with 40th Avenue (close it or leave it open) independently of the shopping centre must be made clear to council…” was that said?

A. That is completely inaccurate. The position was that the northwest Market Mall shopping centre development agreements could not go to council until and unless the 40th Avenue question was settled to the satisfaction of the citizens and the mayor.

Q. Going on with the statement, there is a dash after the last part that I quoted, and then it says, “—that the developers must make it clear that 40th Avenue did not matter to them…” was that said?

A. I am sorry, give me that again?

Q. “—that the developers must make it clear that 40th Avenue did not matter to them…”?

A. No, sir, no.

Q. You say no?

A. That is not accurate.

Q. Was that said?

A. It was not said because obviously 40th Avenue did matter to them. It was just not said.

It is thus clear that if the respondent’s version of the October 22nd meeting is to be believed as it has been throughout, no commitment, assurance, or undertaking was made or given on behalf of the Baxter interests at that time to the effect that Council could deal with 40th Avenue independently of the shopping centre nor was it agreed that 40th Avenue did not matter to the developers. On the contrary, as I have indicated, Mr. Waisman gave an immediate and nega-

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tive answer to the suggestion of closing 40th Avenue north of the centre as soon as that question was raised, and he did this in the presence of the mayor.

There is no doubt in my mind that the statement which evoked the mayor’s allegations of “breach of faith” and “deception of Council and myself” was the statement made by the respondent when he appeared as the representative and sole spokesman of the Baxter interests at the Council meeting of November 10th concerning the closure of 40th Avenue north of the shopping centre. The respondent’s own account of what was said, which is not questioned, is as follows:

I was called back by the acting Mayor and asked questions specifically, “Would the shopping centre be built if 40th Avenue was closed north of the shopping centre?” To which I replied that I could give no assurance, my instructions were that if 40th Avenue was left open the shopping centre would be built, but that if 40th Avenue was closed north of the shopping centre I could give no assurance that the shopping centre would be built. There was no question at all what was said to me on that occasion.

When he was asked about this presentation to the City Council meeting, Mr. Hamilton, the commissioner of operations and development for the city gave the following evidence:

Q. Now, was anything that you heard said by Mr. Fraser which was not in accordance with the facts as you understood them?

A. Mr. Fraser said nothing at variance with what I heard in the conversation that we have referred to earlier in the Mayor’s office.

This is a reference to the meeting of October 22nd at which the mayor presided and it was said concerning the representations made on behalf of the developers before the City Council. Accepting as I do the respondent’s version of the meeting of October 22nd, and Mr. Hamilton’s version of what the respondent said on November 10th, I am satisfied that the mayor was fully aware, more than two weeks before the City Council meeting, that the attitude of the

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developers was that which was later stated to the City Council by the respondent. This being the case, there was no breach of faith by either the developers or the respondent and no deception was practised on either the Council or the mayor.

Furthermore, it is clear to me from my understanding of the answers given by the appellant’s own counsel at the rehearing that whatever else Mr. Baxter may have said to the mayor, he at no time made any commitment with respect to the closing of 40th Avenue.

As is pointed out in the judgment of the learned trial judge[2] and of the Court of Appeal of Alberta[3] there are two questions to be determined at the outset. The first is a question of law as to whether the statement complained of can, having regard to its language, be regarded as capable of referring to the respondent. The second question is, does the article in fact lead reasonable people who know the respondent to the conclusion that it does refer to him? This is a question of fact.

A very full review of the relevant authorities has been made in the Courts below and I agree, for the reasons stated in both Courts, that the words used in the mayor’s statement are to be read in light of the circumstances giving rise to their use, and that when so viewed they are clearly capable of referring to the appellant and that they did in fact refer to him. I think also that the mayor’s statement of November 12th met the test referred to by Lord Selborne in Capital and Counties Bank Ltd. v. Henty & Sons[4], where he said:

The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense.

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I agree with the analysis of fact and law summarized by Mr. Justice Clement speaking on behalf of the Court of Appeal at p. 173 where he said:

It could hardly be seriously urged that Sykes is not responsible for the publication of his statements in the news media. All those attending the Council meeting of 10th November, both members of the public, aldermen, City officials and reporters, would have little difficulty in concluding that Fraser was pointed to. Others would undoubtedly have in their minds the newspaper report of 11th November which specifically named Fraser: it was this report that caused Sykes himself to act as he did. Those who attended the two press conferences summoned by Sykes could have no doubt that he was implicating Fraser. In the light of the surrounding circumstances, the words complained of were capable of being understood by a reasonable man as pointing to Fraser, and I am of opinion that the learned trial Judge was correct in finding as a fact that they did so.

The remaining defences may be disposed of more summarily. I am of opinion that the learned trial Judge was right in holding that the words complained of conveyed a defamatory meaning of and concerning the plaintiff, and I am further of opinion that in the context in which they were used that meaning is derived from their natural and ordinary meaning as they would be conveyed to an ordinary reasonable man without special knowledge or extension by innuendo.

As to the defence of justification (i.e., that the matters complained of by Fraser were true) insofar as it was pleaded, the learned trial Judge found as a fact that there was no truth to any of these assertions and there was ample evidence on which to base that finding. This finding also disposes of the defence of fair comment, since that defence can stand only upon the foundation of a true statement of the facts upon which the comment is made: Manitoba Free Press v. Martin (1892), 21 S.C.R. 518 at 528.

I am also in agreement with Mr. Justice Clement, for the reasons which he has stated, that the defence of qualified privilege cannot be claimed for the occasions upon which the appellant made his publications.

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The finding that there was no truth in any of the assertions made by the appellant is a finding of fact which has been forcefully asserted by both Courts below and I am not prepared in this case to depart from the long established general practice of this Court not to interfere with concurrent findings of fact of two courts below. Here there is ample evidence to support the findings and it has not been shown that there was any misinterpretation of the facts of error in principle.

The presentation of argument in this appeal was initially concluded on February 1, 1972, but by direction of the Chief Justice the appeal was reheard before the full Court in December 1972, for the purpose of including argument on the following questions, namely:

Whether one member of an associated group of three persons may succeed in a libel action where

(1) the group is collectively castigated in a public statement;

(2) the castigation is not actionable by the other two;

(3) he is not singled out for particular mention in the statement;

(4) the castigation is made because of a commitment on a public matter by his associates made to the publisher of the statement, but which he, as their spokesman, denies or from which he recedes; and

(5) he is unaware at that time of the commitment made by his associates.

I think it desirable to consider the five aspects of this question separately.

As to the first two items, I am satisfied that the group was collectively castigated by the appellant’s statement, but having regard to the views which I have expressed, I am by no means satisfied that the castigation would not have been actionable by the other two members of the group, and in any event I do not think it would have been desirable to make a final disposition of this question in these proceedings.

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As to the third item, I am content to abide by the findings of the Courts below that when the words used in the appellant’s statement are read in light of the circumstances giving rise to their use, they are clearly capable of referring to the respondent and do in fact refer to him, and I am reinforced in this opinion by the paragraph of the appellant’s statement in which he said:

Mr. Baxter stated that Mr. Fraser had been authorized to accept ratification of the agreement conditional on closing 40th Avenue. I do not believe that Council understood that this was the position when it voted on Monday night.

In the context of the mayor’s statement, this is an obvious reference to something said by Baxter after the meeting of November 10th at a time when he and the mayor and the readers of the local newspapers were all aware of the fact that Fraser had acted contrary to this authorization, if such authorization was ever given. In my view the paragraph in question, read together with that which preceded it, carries the clear meaning that “Mr. Fraser” (the respondent) failed to carry out his clients’ instructions and thus misled and deceived the City Council. When this paragraph was read to the respondent he denied categorically that he had ever received such instructions from either Baxter or Waisman and, like both the Courts below, I believe his evidence to have been truthful. I am accordingly unable to subscribe to the proposition contained in the third item to the effect that one member of the group was not singled out for particular mention in the statement.

As to the fourth item, I am, as I have indicated, satisfied that the allegation that a member of the group receded from a commitment made by his associates is directed to the statement made by the respondent at the Council meeting of November 4th that if 40th Avenue was closed north of the shopping centre he could give no assurance that the shopping centre would be built. In view of the fact, which is now apparent, that no commitment was made by any

[Page 545]

member of the group in relation to the closing of 40th Avenue north of the centre, I am unable to find that the castigation was “made because of a commitment on a public matter by his associates made to the publisher of the statement but, which he, as their spokesman denies or from which he recedes”.

As to the fifth item, I am of opinion that whether Fraser was acting as solicitor, spokesman or real estate agent for the Baxter interests, and whether or not the alleged commitment had been made, his lack of knowledge of such commitment would divorce him from his associates so that if, acting in good faith and on his principals’ instructions, he made representations which turned out to be misleading and a breach of faith on the part of his principal, he could not be stigmatized as one who has misled and deceived the body which he was addressing without having any recourse to an action for defamation. I find that the case of Bulletin Co. Ltd. v. Sheppard[5], and particularly the statement quoted from the trial judge in that case at p. 463, affords support for what I have said in this latter regard.

The appellant also contended that the award of $10,000 was excessive and I think it desirable in this regard to quote the penultimate paragraph of the reasons for judgment rendered at trial, which reads as follows:

Bearing in mind the circumstances surrounding this case, including the office occupied by the defendant, the profession of the plaintiff, the defendant’s carelessness and his failure to apologize, the nature of the defamatory statements and the wide publication given to them, and the awards granted in similar actions for defamation, together with the mitigating effect of the defendant’s lack of intent to defame the plaintiff, I award general damages in the sum of $10,000.

As I have indicated, I do not think that the respondent’s cause of action was dependent upon the fact that he was a well-known lawyer with wide experience in land development and

[Page 546]

town planning matters. I think, on the contrary, that he would have been entitled to relief even if he had had no such professional qualifications, but in the circumstances of this case he had been acting for some years as solicitor for the Baxter interests in conducting negotiations with the city concerning the shopping centre and as it was in this capacity that he was employed to act as sole spokesman for these interests before the City Council meeting of November 10th, I think that the defamatory words published about him by the appellant might well have been taken to have been written and spoken of him in his professional capacity and in my view the learned trial judge was therefore justified in taking this element into consideration in awarding damages.

In any event this is not, in my opinion, a case in which the damage award made by the learned trial judge and confirmed by the Appellate Division can be said to have been so inordinately high as to warrant interference by this Court.

For all the above reasons I would dismiss this appeal with costs.

The judgment of Hall, Spence, Pigeon and Laskin JJ. was delivered by

LASKIN J. (dissenting)—This appeal, arising out of a libel action, was first argued before a Bench of five of which I was one. It was reheard by the full Court pursuant to a direction of October 18, 1972, which invited counsel to include in their submissions argument on a question formulated as follows in the direction:

Whether one member of an associated group of three persons may succeed in a libel action where

(1) the group is collectively castigated in a public statement;

(2) the castigation is not actionable by the other two;

[Page 547]

(3) he is not singled out for particular mention in the statement;

(4) the castigation is made because of a commitment on a public matter by his associates made to the publisher of the statement but which he, as their spokesman, denies or from which he recedes; and

(5) he is unaware at that time of the commitment made by his associates.

This question inheres in the facts of the case, as will be apparent from the following recital, and, in my opinion, the answer thereto must be in the negative.

The second hearing of this appeal, as well as the first, exhibited a difference of opinion between counsel for the respective parties as to the significance of the facts recited and found by the trial judge. His judgment, as that of the Court of Appeal, rested on conclusions that I do not share because I see the same facts differently, and I attach legal importance to others which did not enter into the trial judge’s application of the law.

The plaintiff Fraser is a lawyer, a member of a firm, and in good standing in his profession. Up to the time of this litigation a considerable part of his practice consisted in his representing land developers in negotiations with municipal officials and in appearances before municipal bodies, including municipal councils. The right of audience before such bodies is not, of course, limited to lawyers, and the fact that Fraser is a member of the legal profession is of itself of no importance on the question of the defendant’s liability in this case. The allegations of libel, if made out, would be equally actionable at the instance of a non-lawyer; they do not relate specifically to Fraser’s profession.

The defendant Sykes was elected on October 15, 1969, on his first try for public office, as mayor of the City of Calgary. The events out of which the present litigation arose took place between October 16, 1969, and November 14, 1969. They involve two corporate clients of the

[Page 548]

plaintiff, namely, Carma Developers (North) Ltd. and R.C. Baxter Ltd. (two Winnipeg-based companies), the dominant spokesman for those companies, one R.C. Baxter, and the latter’s associate, one A.H. Waisman, whose main responsibility lay in the architectural and planning aspects of land developments. The two companies, as such, play no part in the present case, other than being the legal persons in whose names Baxter and Waisman negotiated. It is the role of the latter two, and especially that of Baxter, in the matters out of which this action arose that is central.

For some time before 1969, Baxter and Waisman had projected a shopping centre development on a 45-acre tract of land in the northwest quadrant of Calgary. That quadrant was at the same time the subject of a general development plan by the municipality. One of the issues arising out of the development and out of the proposed shopping centre was the management of increased traffic and its effect on the residents of the area. An important east‑west artery in the area was 40th Avenue North West which, at the time, ran to the easterly side of 53rd Street, which was just northwest of the proposed shopping centre. The question of the extension of 40th Avenue across 53rd Street in a westerly direction was very much involved in the overall development.

A second question which emerged in connection with the traffic situation was whether to close 40th Avenue to stop traffic from the north. It would be the north boundary of the shopping centre, and its closing at a point nearby against traffic from the north would, of course, affect access to the shopping centre.

Neither the plaintiff nor anyone else involved directly or indirectly in this litigation was unaware of the two matters of the municipal development plan and of the private shopping centre nor of the road and traffic considerations that they raised. Indeed, the defendant, in his

[Page 549]

mayoralty campaign, had stressed his intention, if elected, to see that residents affected by commercial developments which, by traffic build-up, would disturb their neighbourhoods, would have an opportunity to make their views known.

Nothing, in my opinion, turns on whether or not the closing of 40th Avenue north of the proposed shopping centre was pinpointed in the mayor’s campaign as an election issue. It was, however, a traffic consideration that the mayor regarded as important, and he made this evident from October 16 on as the recital which follows shows.

On October 16, 1969, Baxter telephoned the defendant from Toronto to discuss the prospect of getting the new municipal council to deal expeditiously with the shopping centre project which had been a matter of public interest for about three years. During that conversation, as the defendant testified and as his press release of November 12, 1969 (which formed the basis of this action and which is set out below) indicated, Baxter told him that he “couldn’t care less” about 40th Avenue and that it was immaterial to him whether or not it was closed. It was the defendant’s position that this meant that the issue of the closing of the street could be considered by council on its merits, in the light of the general development plan, and that the decision would have no bearing on the realization of the shopping centre project. The defendant did not suggest that there was any undertaking by Baxter to agree to the closing of the street, but only that Baxter would not make his readiness to proceed with the shopping centre depend on whether the street would be kept open or closed; the two matters were to be discussed and determined independently of each other.

It is, in my view, of importance to state here that neither Baxter nor Waisman gave evidence, and there was no suggestion that their testimony could not have been obtained. I say this not to

[Page 550]

second-guess those responsible for the conduct of the case, but because, in my view, the trial judge had no good reason to refer to the commitment of Baxter in the qualified way that he did. The commitment was put squarely before the public in the press release and was spoken of by the defendant in his testimony. It underlies the whole case. It is the root of the defendant’s position vis-à-vis Baxter and Waisman and, through them, vis-à-vis Fraser. The trial judge does not appear to have appreciated its relationship to the issues in this case. A central passage in the reasons of the trial judge, who was both judge and jury in the present case, reads as follows:

I find that even if the defendant did obtain a definite commitment from Baxter and a confirmation of same from Waisman, as he alleges, he did not recite or repeat this commitment at the meeting of October 22. I find further, that the plaintiff had no knowledge of this alleged commitment at any time prior to Wednesday, November 12, 1969. This finding is corroborated by the defendant’s evidence at trial that he had no knowledge that the plaintiff knew of the commitment that Baxter had made to him and by Hamilton’s evidence that the plaintiff’s presentation before City Council on November 10 was not at variance with the decisions or discussions at the meeting of October 22.

The meeting of October 22, 1969, referred to in the foregoing passage is the next important event. It followed from the telephone conversation and took place in the mayor’s office. At the meeting with Waisman and an associate, one Combe, who were accompanied by the plaintiff, and the defendant, with whom were two senior municipal officers, Hamilton and Cornish. The trial judge accepted the plaintiff’s version of what occurred at that meeting. Prior to this meeting the mayor and Waisman met privately for some ten minutes. The plaintiff was not then known to the defendant who thought that he was one of Combe’s assistants, and Waisman did not seek to have Fraser with him for the private meeting but entered the mayor’s office alone. It is the mayor’s evidence that at this

[Page 551]

private meeting, he and Waisman discussed his October 16 telephone conversation with Baxter, that Waisman understood the relation of the street closing issue to the two developments, and that the mayor was not looking for additional commitments from Waisman because he considered Baxter to be the one principal and he already had an understanding with him.

What emerged in relation to the meeting of October 22 (which followed the private conference between the mayor and Waisman), as related by the plaintiff and as found by the trial judge, was that the defendant took little part (indeed, the defendant testified that it was a meeting concerning technical details), that the discussion of 40th Avenue N.W. was about its extension west; that a question was asked by Cornish of Waisman whether he would object to the closing of the street at a certain point north of the proposed shopping centre and that Waisman replied that the developers did not want it closed at that point. The plaintiff’s evidence was that this was the first time that he had heard of the closing suggestion. He was of the opinion that the only question concerning the street was its extension west. I note that Hamilton testified that the mayor did get across to the meeting his concern that the developers make it clear that 40th Avenue N.W. did not matter to them. The plaintiff’s testimony confirms this. The situation at the close of the meeting was, therefore, that those present, including the plaintiff, knew of the mayor’s concern about separating the approval of the shopping centre project from the treatment of 40th Avenue N.W. However, the plaintiff was not then aware of any understanding that the defendant had on this matter with Baxter. In the course of his cross-examination, it was put to the plaintiff that “you were not always informed of everything to do with this transaction by our principals”; and to this he replied, “I can’t say that I was, sir, no”.

[Page 552]

The shopping centre project was on the agenda for the council meeting fixed for November 10, 1969. The plaintiff met beforehand with Baxter and Waisman, and, on his evidence, it was the first time he discussed with them the closing of 40th Avenue N.W. He was to be their spokesman at the meeting of November 10, and before it began he was approached by an alderman and by Cornish and asked if he had instructions from his clients that they would agree to the closing of 40th Avenue N.W. just north of the proposed shopping centre. He replied that he had no such instructions and was told that it would help to get the shopping centre project approved if his clients agreed to the closing. The plaintiff thereupon asked his clients for instructions which he put into notes in his handwriting. They were an exhibit at the trial (ex. 16), and they say this:

With regard to the closure of 40 Ave, I am instructed to say that no commitment was made or could be made by Baxter or Carma that such street was to be closed in view of the many diverse interests involved who would have to be consulted and approved.

The reference to diverse interests was to the financial backers and principal tenants.

I pause at this point to emphasize that regardless of what Fraser knew or did not know, or believe, prior to the November 10 council meeting, he knew then what his principals Baxter and Waisman knew before, namely, that the mayor and others were very much concerned about the relation of the proposed shopping centre to the closing of 40th Avenue north of the shopping centre. Exhibit 16, to which I have referred and ex. 14, referred to in what follows, are, in my opinion, very telling documents but neither the trial judge nor the Court of Appeal mentioned them.

The defendant presided at the council meeting which first took up the general development plan. However, he had to leave before the shopping centre project was reached for consideration, and Baxter too left the meeting before it

[Page 553]

came up. The plaintiff remained there with Waisman, Combe and two others, and made his representations on the shopping centre project. He did not use ex. 16 but different instructions which had also been prepared beforehand in notes jotted down by him. They were put in evidence as ex. 14, and he followed them closely in his presentation as appears from the following portion of his evidence:

…this is my writing and I was under a certain amount of stress at the time. “Do we go along with closing 40th Avenue. In reply, I am instructed to say three things. First, the closure is not in accordance with what I have understood to be the recommendations of the City administration. To me this means, to say the least, that it would be better planning not to close the street. Second, it is my understanding that all plans, legal contracts, leasing arrangements and financing commitments have been made on the basis that 40th Avenue will be open.” At that point I interjected something to the effect that I have acted with relation to the land sales contracts only, I have not brought a copy with me. I was prepared to let the city solicitor have a look at it. The balance of the contract I have not seen, but I had understood that they had been prepared on the same basis and that while I was not in any position to express an opinion, I had warned Mr. Baxter and Mr. Waisman that if, that they had better consider what their position would be if 40th Avenue, that is as to whether those contracts would have been enforceable and binding if 40th Avenue had been closed. That was added to the statement I made to council. I then carried on: “Third: any delay now is likely to prejudice the project.” And then skipping to the bottom of the page: “In answer to your question therefore I can only suggest that you approve the agreements as they stand, or if…” And at this point I added in some more words, “…if in the exercise of your own best consciences you feel that you cannot proceed on any other basis, approve them on the basis of the closure of 40th Avenue.” Meaning north of the shopping centre. That was the sum and substance of the remarks.

He was recalled at a later stage of the meeting and asked specifically if the shopping centre would be built if 40th Avenue N.W. was closed north of it. His reply, according to his evidence, was that he could give no assurance, his instructions were that if 40th Avenue was left open the

[Page 554]

shopping centre would be built, but that if 40th Avenue was closed north of the shopping centre he could give no assurance that it would be built. This last position of the developers, communicated by Fraser, was contrary to the commitment which, on the defendant’s uncontradicted evidence, Baxter had given.

There were some numbered notes or statements on the back of one of the two pages making up ex. 16, but it appears that they were made after the mayor’s press release of November 12 and since they are not strictly part of ex. 16 I make no reference to them. However, in addition to what I have already quoted from ex. 16 there is a concluding paragraph on the second page of that exhibit which is in these words:

I am also instructed that Baxter and its associates are concerned about the safety & welfare of the community surrounding its centre and they are therefore prepared to consider & implement any reasonable proposal which the City may make in this regard provided that it does not delay construction & will not impair the success of the centre.

Baxter was present when ex. 16 was prepared as well as when ex. 14 was prepared, as was Waisman. In this connection, as in others already mentioned, the failure of Baxter and Waisman to give evidence tells against the plaintiff rather than against the defendant.

The result of the council meeting was approval of the shopping centre project by a 7 to 4 vote. When the defendant learned the next day (November 11, which was a holiday) of what had happened he felt (to use his words) that “something had come unstuck” and the following day, November 12, he had an angry (on his part) telephone conversation with Baxter and later with Waisman. The defendant’s evidence as to these conversations is relevant to the press statement which he subsequently gave, and I reproduce part of that evidence as follows:

[Page 555]

The substance of that call was that I was very angry. Certainly, I had some members of the administration in my office because we had been discussing with them exactly what had taken place, whether it was Hamilton or Cornish I can’t tell you, although I had thought it was Hamilton, and I was very angry and I said in effect, “Dick, you made a commitment to me and you didn’t keep it, and I want you to honour it now.” He then made the statement that he had undertaken to me that the contract on the 40th Avenue problem would not be presented on the basis of interdependency, and they had not been, so far as he knew. Now, at that point, I suppose, it became apparent that Baxter had left and he hadn’t been fully briefed by Waisman, because in any case, I think within a half hour or so I told him what I thought of him, and I thought that he was not keeping his word. He explained there had been a problem coming up rather late, a problem they hadn’t foreseen, he said they would work on it, they would be glad to meet and talk, and I took all these things as evasions, because our agreement had been clear-cut, unequivocal and unqualified, and I said so. We left on the basis that he would talk to Waisman and he would call back. Well, Waisman called me back and was very conciliatory, he explained that they had a problem with Rupert’s Land Trading, they hadn’t foreseen it, it would take some time to clear up, but they were not in a position at the time of the meeting to go ahead with their undertaking to separate the question of 40th Avenue from the question of the shopping centre agreement, and would I give them time. I pointed out that they had had three weeks or more by then to arrange anything that they had to arrange, arrange with their major tenants, and that they had been concerned to get this thing through Council at almost any cost. They told me they were running out of time, they were desperate, and I thought they had taken advantage of my absence, I told him so, and they had gotten an unconditional approval for something that they had agreed they would accept conditionally. It was at that time that Waisman said, “Well, Dick Baxter had not been there, and he hadn’t done anything about it and hadn’t participated in the presentation,” and would I give them more time and they would call back; and there were several conversations to the effect that they wanted more time, that they would honour the agreement if I would wait. And having been let down like that, I didn’t feel that they were doing anything but playing for time.

[Page 556]

Following these telephone conversations the defendant called a press conference at which he read a long hand-written statement which is one of the foundations of the plaintiff’s claim. I reproduce it in full:

R.C. Baxter telephoned me from Toronto on October 16, 1969 to ask my advice on the handling of the shopping centre agreement which had been scheduled to go to the new Council’s first meeting, a few days after the election.

I told him that my advice was to withdraw the agreement from that meeting, so as to allow a new Mayor and the new aldermen time to examine it and to inform themselves, and to resubmit it as soon as possible thereafter. He asked me what I thought would happen were the agreement to go to Council as scheduled. I said that I believed that it would fail to pass as neither I nor the new Aldermen were likely to support it without understanding what we were doing.

I said, also, that the question of 40th Avenue would have to be resolved to Council’s satisfaction, and to mine if I were to be expected to support the agreement.

Mr. Baxter said that he “couldn’t care less” about 40th Avenue; that it had never been important to the shopping centre project, and that he would have no objection to 40th Avenue being closed if that were Council’s wish. I said that I was delighted to hear this and that his attitude had removed a major reservation in my mind concerning the project. On this basis, which I said that I would make clear to the aldermen concerned, I undertook to evaluate the agreement itself on merit, and support it or not on that basis.

Subsequently, Mr. Waisman, Mr. Baxter’s partner, came from Winnipeg to see me about the shopping centre agreement. I met him with several of his associates (Messrs. Coombe, Fraser) and mine (Messrs. Hamilton, Cornish) and I made it very clear indeed that I was generally satisfied that the agreement itself was a good one, but that the residents were very exercised over the vexed question of 40th Avenue and that an acceptable solution must be found before the project could be dealt with.

I was insistent on this, and I referred to what Mr. Baxter had said on this matter earlier.

[Page 557]

Mr. Waisman then said that he agreed with Mr. Baxter, that 40th Avenue was not of great importance to the shopping centre project; and he said further that the 40th Avenue situation had been produced by City Hall and not by the shopping centre project.

I made it clear that this position, that Council could deal with 40th Ave. (close it or leave it open) independently of the shopping centre must be clear to Council—that the developers must make it clear that 40th Ave. did not matter to them and, on that basis, I believed that I could support the project.

On several occasions I discussed the matter informally with Commissioners and with several of the aldermen who were in doubt of their stand on the shopping centre.

At the Council meeting that considered the agreement the developers did not make it clear that 40th Ave. did not matter to them; on the contrary, they left some members of Council with the clear impression that any closing of 40th Ave. would jeopardize the project. As two aldermen told me “They put a pistol to our heads”. Had I been present, as unfortunately I was not, I would have been able to deal effectively with the tactics adopted by the developers and in that case, it might well have been the case that the agreement would not have been ratified, as it was in fact by 7:4.

I telephoned Mr. Baxter on the morning of November 12 and told him that I was shocked at the approach adopted by his representatives, who had handled matters very skilfully indeed in my absence from Council, and that I considered there to be a serious breach of faith in his firm’s handling of this matter. I told Mr. Baxter that I would make a statement to this effect late in the afternoon failing my receiving a wire confirming that he had no objection to Council dealing with 40th Ave. on its own merits. Mr. Baxter, and Mr. Waisman (two conversations in the same day) confirmed my understanding of what I said to them and what they said to me—but they said that they hadn’t realized that I thought it was so important, or that I took their statements as commitments.

Mr. Baxter stated that Mr. Fraser had been authorized to accept ratification of the agreement conditional on closing 40th Ave. I do not believe that Council understood that this was the position when it voted on Monday night.

[Page 558]

They offered to study the matter again, I said that I was not satisfied with their conduct so far, that a month had passed since I obtained what I consider a binding moral undertaking on 40th Ave. from them, and that I was not prepared to sweep this matter under the rug.

I am now calling on Mr. Baxter and Mr. Waisman to honour their statements to me—that they would have no objection to the closing of 40th Avenue should this be Council’s wish.

At a regular press conference which took place on Thursday, November 13, 1969, a question and answer interview was held which, as reported in the press, contained the following three statements made by the defendant:

The matter has not been settled if the Council has been misled.

There has been no misunderstanding on what was said. In my opinion they are practising deception of Council and myself.

The question is are they going to do business in Calgary with their cards on the table, or continue the games they are playing?

The questions to which the foregoing statements were answers were not reported, nor was any evidence given to identify them.

The allegation of the plaintiff is that what was published as a result of the two press conferences was defamatory of him in falsely imputing bad faith, improper tactics and deception, and thus impugning his character, and his honesty and integrity as a member of a profession. Lieberman J. of the Alberta Supreme Court found in the plaintiff’s favour and awarded “punitive and aggravated” damages in the total sum of $10,000. His judgment was affirmed on appeal.

Fraser is named at two places in the press statement given by the defendant; once in a reference to “Coombe and Fraser” as associates of Baxter, a purely factual and innocent reference, and a second time in the following sentence: “Mr. Baxter stated that Mr. Fraser had been authorized to accept ratification of the agreement conditional on closing 40th Avenue.”

[Page 559]

The context shows that this was a reference to what Baxter said in the telephone conversation on November 12. There is a third collective reference when the defendant said in his statement, after referring to the telephone call of November 12, that “I was shocked at the approach adopted by his representatives, who had handled matters very skilfully indeed in my absence from Council, and that I considered there to be a serious breach of faith in his firm’s handling of this matter”.

This collective reference was alleged to be libellous of Fraser, and as well the sentence in the press statement reading: “Had I been present, as unfortunately I was not, I would have been able to deal effectively with the tactics adopted by the developers…” The other libellous matters complained of were in the three statements, already mentioned, that were made in the course of the press interview on November 13, 1969.

It is plain that nowhere in any of his statements did the defendant make any imputation against the plaintiff alone, nor did he even name him or refer to him in terms of his profession so as to single him out from those who were appearing on behalf of the developers.

A plaintiff who sues for libel must prove not only that the words complained of are capable of referring to him (that is, there is evidence upon which such a finding may be made where he is not expressly identified with the libellous matter), but that this is a reasonable conclusion in the circumstances: see Knupffer v. London Express Newspaper Ltd.[6] Classes of cases where extrinsic identification has been called for have been those where a small group has been libelled and it is open to any member within it to sue; or cases where, in the circumstances, the plaintiff alone is identifiable among those in the group; or cases where the libel arises out of a similarity of name and would be innocent or true of the person intended but not

[Page 560]

of another; or cases where by coincidence a libel arises by reason of a description which, although not intended to refer to any known person, does fit a particular one.

The present case does not fall within any of these classes. It is rather a type of case where the plaintiff’s identify is no more marked than those of the two others with whom he was associated, and where the matter complained of involves the group as a whole but is not actionable by them as a whole. In short, the question is whether the plaintiff can succeed if his associates cannot.

I put the matter this way because the record admits of no other conclusion than that there was no actionable defamation of either Baxter or Waisman. It is to me astonishing that neither the judge of first instance nor the Alberta Appellate Division said anything in their respective reasons of the positions of Baxter and Waisman, for whom and with whom Fraser appeared and from whom he took instructions, as having been or not having been libelled. Of course, they were not before the Court as parties nor were they witnesses, but it was their project and their role on the issue of the closing of 40th Avenue that was the focus of the defendant’s statements. In the events that happened, I regard it as impossible to isolate Fraser from his associates as if he was pursuing an independent course before the municipal council.

In the course of his cross-examination, the defendant was asked whether he considered that the statement he made about being shocked at the approach adopted by Baxter’s representatives in any way related to Fraser. He answered as follows:

I considered that that related to the whole group of representatives, whoever they were. There is only one principal, Dick Baxter.

And, again on the same point, he said:

[Page 561]

I was holding Dick Baxter to account. He was responsible for giving them instructions, and whatever instructions he gave them, I was complaining, were not in accordance with his understanding with me.

This evidence cannot insulate the defendant if in law Fraser was libelled; it does, however, go to Baxter’s pivotal position. In the press statement, it was the way in which Baxter’s “firm” handled the matter that brought the allegation of a breach of faith. The press statement covered the various telephone conversations with Baxter and with Waisman, and also covered the conversation that the defendant had with Waisman on October 22. These were the central pieces in the reaction of the mayor to the position taken by Baxter and Waisman, by their instructions to Fraser, at the council meeting of November 10.

This case is not concluded by a holding that the allegedly defamatory statements could reasonably be construed as referring to the plaintiff and by a finding that they in fact did refer to him. Because Fraser was not singled out from the others involved in the statements, the issue of defamation was common as to all of them; and by reason of his relationship to Baxter and Waisman, the plaintiff’s position was not distinguishable from theirs.

The plaintiff’s role in the situation out of which these proceedings arose was throughout as representative and spokesman for Baxter and Waisman. He chose to represent them in a municipal matter and to put their contentions before a public body. The only conclusion from the record is that they permitted him to make representations on their behalf which involved a change of position on their part. The defendant reacted strongly, not against the plaintiff as having knowingly falsified his clients’ position but against his principals in the representations that were made on their behalf. In the circumstances of this case, the libels alleged were either libels of Baxter, Waisman and Fraser as a group or were not defamatory of any of them. But there was no attempt by the plaintiff in this

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case to establish the defamatory character of the appellant’s statements as against the group of which he was a member. As I have previously noted, the evidence is rather the other way.

A fair reading of the press release—and it must be read as a whole—shows that the defendant had Baxter and Waisman as his targets. They are named, and named, as the persons with whom the defendant dealt and against whom (see his concluding paragraph) he alleged breach of faith. The plaintiff as a spokesman for clients who proved to be faithless—apparently to him as well as to the defendant—cannot, it seems to me, at one and the same time be their spokesman in a matter of mutual concern to them and to the defendant, and yet stand apart from them in that very matter when they are rightly charged with breach of faith in terms that embrace him with them but not separately. I repeat, this is not a case where the plaintiff has been singled out as one who has broken faith or has acted discreditably either as a person or as a professional man.

The collective involvement of the plaintiff with his clients is emphasized by Baxter himself in a statement (which plaintiff’s counsel introduced into the record) that he read to the council at a meeting on November 24, 1969. Its opening paragraph is as follows:

We have discussed the dead-ending of 40th Avenue north of the Shopping Centre with the Mayor. While we could not agree to this at the November 10th meeting and so stated to Council, we have now secured the necessary approvals to allow the question to be discussed on its own merits and separately from the Development Agreement ratified on November 10th if that is the wish of Council.

This statement is not inconsistent with the mayor’s position.

There is one further matter that must be considered in view of the emphasis laid on it by counsel for the plaintiff and, indeed, in the

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reasons of the trial judge. It is that the defendant, on his own testimony, had no knowledge that the plaintiff was aware of the commitment made by Baxter. I am unable to see any significance in this for the plaintiff’s case because it is not alleged that the defendant’s statements were predicated on Fraser having that knowledge. The defendant knew only that Fraser was involved with Baxter and Waisman and was appearing with them and was their spokesman, but it was with Baxter’s commitment to him that he was concerned. His evidence touching this matter was as follows:

…he [Fraser] had no commitment to me certainly, and I had no knowledge really that he knew that Baxter had made me a commitment, or beyond that, that his instructions hadn’t been changed if [as?] they could have been at any time up to the time he spoke.

It is perhaps more to the point in this case that Fraser knew of the concern of the mayor and others about the closing of 40th Avenue north of the shopping centre and of the concern to separate that matter from the shopping centre project. He knew of this before the Council meeting, as his instruction notes clearly show, and he was very much aware of the matter at that meeting. If he has any complaint about breach of faith it is against his clients and not against the defendant. He was the agent through whom Baxter broke his commitment to the defendant, and the latter was fully entitled to disclose the breach in the way that he did.

I would, accordingly, allow the appeal, set aside the judgments below and dismiss the action, with costs throughout. In the result, I do not find it necessary to deal with any of the other points raised in the case at trial and on appeal.

Appeal dismissed with costs, HALL, SPENCE, PIGEON and LASKIN JJ. dissenting.

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Solicitors for the defendant, appellant: McLaws & Co., Calgary.

Solicitors for the plaintiff, respondent: Saucier, Jones, Peacock, Black, Gain, Stratton & Laycraft, Calgary.