Libel and slander Practice Discovery Range of questions by defendant relying on defence of fair comment.
Motion by the defendants for an order that Meyer reattend on examination for discovery and answer certain questions objected to by her counsel. Meyer brought an action against the defendants for defamation arising out of a television news program. The defendants pleaded that the words constituted fair comment. They referred to three documents setting out the alleged conduct of Meyer. Meyer's counsel objected to questions relating to the truth of the facts described in the documents.
HELD: Motion allowed. The defendants had pleaded the allegations of fact and were entitled to examine upon them.
Nicholas W. Lott, for the plaintiff.
G. James Baugh, for the defendants, Raj Chouhan, Hospital Employees' Union and Linda Hargreaves.
¶ 1 These reasons follow the hearing of the Defendants' motion for an order that the Plaintiff re-attend her examination for discovery and answer questions objected to by her counsel on her prior attendance. The trial of the matter is set for October 29, 2001 and the examination for discovery is scheduled to reconvene on October 18, 2001. The reasons are therefore brief to accommodate the interests of the parties.
¶ 2 The Plaintiff is suing the Defendants for damages for defamation arising out of a television news broadcast on September 1, 1999. The Defendants Chouhan, Hospital Employees' Union and Hargreaves (the "Defendants") have pleaded, inter alia, that the words constitute "fair comment". In the statement of defence, the Defendants particularize the defence by reference to three documents which set out details of alleged conduct by the Plaintiff.
¶ 3 At her examination for discovery, Plaintiff's counsel objected to questions relating to the truth of the facts described in the particulars.
¶ 4 At issue is the scope of the examination for discovery in the context of the defence of fair comment. Must the Defendants plead that the words were true (the plea of "justification") in order to examine on the particulars?
¶ 5 The Defendants published the words complained of following the filing of a complaint with the Human Rights Commission about the operation of a facility managed by the Plaintiff. The particulars incorporated into the defence are found in the original complaint form filed September 1, 1999, a complaint information sheet filed November 24, 1999, and a letter from Defendants' counsel dated June 27, 2000.
¶ 6 The particulars contain allegations of fact about the Plaintiff which may be defamatory themselves but are protected because of the forum in which they were made. The published remarks contain only a reference to the Defendant Chouhan's opinion of the Plaintiff and do not refer to the particulars.
¶ 7 Defamation proceedings are technical in nature and "pleading-dependent". The Plaintiff says she cannot be examined on the truth of the facts particularized because the Defendants have not pleaded "justification" i.e. that the words were true. The Defendants say the plea of fair comment allows them to maintain that the facts upon which the comment was based are true and they must therefore be allowed to examine on the pleaded facts to establish their truth.
¶ 8 The Plaintiff says that where justification is not pleaded the Defendants will not be allowed to prove that the allegations of fact are true. She relies upon the decision in Leech v. Leader Publishing  1 W.W.R. 673 Sask C.A. where Haultain C.J.S. said at p. 677:
"Where there is no plea of justification, evidence is not admissible to prove facts which will establish the truth of the defamatory matter."
¶ 9 The Plaintiff also relies upon Leech (supra) where McKay J.A. said at p. 726:
"A plea of fair comment therefore is applicable where the facts upon which the comment is based are not defamatory although the comment itself may contain defamatory matter. The truth of the defamatory matter is not in issue. It in effect admits that there is defamatory matter in the comment, but that it is nevertheless fair, being based on the non-defamatory facts proved or assumed to be true, and it bring a comment on a public matter, etc. And under such a plea, evidence of the truth of defamatory matter is not admissible."
¶ 10 In Gatley on Libel & Slander [8th Edition] the following passage is found at p. 302:
"But though the facts on which the defendant relies as the basis of his comment must have been present in his mind at the time when he made his comment and must have really existed, it is not necessary for him to prove that he then knew the facts to be true, or was acquainted with the evidence by which their truth could be displayed."
¶ 11 On that basis, the Plaintiff says she cannot be examined on the facts particularized and relied upon by the Defendants in support of their plea of fair comment. She also relies upon decisions of the Australian courts holding that the defendant is not allowed to interrogate the plaintiff as to the objective truth or falsity of the matter complained of. (Redmond v. Uebergang (1984) N.S.W.L.R. 311; Aldridge v. John Fairfax & Sons Ltd. (1984) 2 N.S.W.L.R. 544)
¶ 12 The scope of examinations for discovery is determined by reference to the pleadings. The Defendants have plead the allegations of fact in the documents incorporated by reference and ought to be able to question the Plaintiff about those allegations unless the law prevents them from doing so.
¶ 13 The Plaintiff concedes that the Defendants are entitled to prove the facts on which the alleged defamatory comment was made unless those facts are themselves defamatory. If those facts are defamatory the Plaintiff says the Defendants are not entitled to prove them (and, by inference, examine upon them) in the absence of a defence of justification or truth. That leaves open the question of how the determination of whether the facts are or are not defamatory would be made. That test would be of little assistance in the conduct of an examination for discovery.
¶ 14 In The Law of Defamation in Canada [Second Edition], the author, referring to the defence of fair comment, says:
"A comment is the subjective expression of opinion in the form of a deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof. In order to be fair, it must be shown that the facts upon which the comment is based are truly stated and that the comment is an honest expression of the publisher's opinion relating to those facts."
¶ 15 It is not clear from that passage that the facts referred to must be shown to be true but the author goes to say that the defendant must give particulars of the facts upon which he relies to support the defence of fair comment. The author says:
"A defendant can examine only with regard to those particulars which he or she has set out in the statement of defence in support of a plea of fair comment. Where the defendant has pleaded fair comment, but not justification, he is not entitled on discovery to question the plaintiff regarding the truth of the statements upon which he relies in support of the comment, unless particulars have been provided in advance."
¶ 16 Many of the authorities deal with cases where the old "rolled-up" plea was made pleading both justification and fair comment. It is difficult to glean the real essence of those decisions because truth of the facts was often required. In this case, it may not be necessary for the Defendants to prove the truth of the particulars but the modern authorities support the Defendants' position that they should be allowed to examine on them. Questions as to admissibility must be left to the trial judge.
¶ 17 In Doucett v. Crowther ( N.B.J. No. 507, N.B. Court of Queen's Bench), McLellan J., referring to an earlier edition of The Law of Defamation in Canada, said that the law was not correctly stated. The court in Doucett held that the Defendants there were entitled to question the Plaintiff about the allegations in the claim provided they were sufficiently particularized. That appears to be the modern view and is in accord with the tendency towards full disclosure in litigation.
¶ 18 The Plaintiff must answer questions at her discovery about the allegations in the statement of claim including those incorporated by reference. It will be up to the trial judge to determine whether that evidence is admissible in the context of the case each party has to make.
¶ 19 The Defendants are entitled to the costs of the motion as costs in the cause.
QL Update: 20011030