Defamation lawyers will be closely watching a libel case launched by three Crown lawyers against two MPPs that touches on some of the most contentious issues in the field.
The three Crown attorneys, Linda Chen, Catherine Glaister, and Daniel Kleiman, named Progressive Conservatives Randy Hillier and John Yakabuski as defendants in a $5-million suit for comments they made about the lawyers’ conduct in the prosecution of an eastern Ontario sawmill for safety violations.
Prosecutors laid four charges against Gulick Forest Products Ltd. following an accident in which a worker broke his pelvis. They dropped the charges 16 months later when the employee changed his story.
In the legislature, while protected by the absolute privilege granted in that forum, Yakabuski said the charges were scare tactics designed to force the firm into accepting a plea deal and fine.
Then in a joint news release with Hillier, the pair called for a criminal investigation into allegations of obstruction of justice in the prosecution. It was those comments that sparked the latest lawsuit. None of the allegations have been proven in court.
“Lawsuits against MPPs are pretty rare, partly because what they say is usually said in a privileged forum,” says Alan Shanoff, a former lawyer for Sun Media Corp. “When they step outside the house, the law becomes a little bit murkier.”
But Brian MacLeod Rogers, another media lawyer, says Canadian law has traditionally been too restrictive on matters of public interest.
“If members of the legislature are speaking out on matters of public interest, whether they are inside the legislature or not, there should be protection for them because there is a real public interest in hearing what they have to say and allowing them to speak out without fear of being embroiled in libel litigation,” he says.
An Ontario Court of Appeal ruling in the late 1970s in Stopforth v. Goyer recognized a qualified privilege for a politician speaking outside of the legislature.
More recently, in Grant v. Torstar Corp., the Supreme Court of Canada created a new defence of responsible communication that allows publication of potentially defamatory facts as long as there was a reasonable attempt to verify them.
The Eganville Leader, a local newspaper named in the suit for its coverage of the comments by the MPPs, may get an opportunity to test the new defence. Shanoff says it could turn on whether it got the Crown lawyers’ side of the story.
“It’s always interesting to see new responsible communication cases because it’s so new and we want to see where the courts are going to go with it.”
According to Tom Conway, a lawyer who represented a former Conservative party member who sued the prime minister, the plaintiffs could face an additional barrier in getting the politicians to answer to the allegations because they can’t compel sitting MPPs to testify or submit to examination for discovery while the legislature is in session.