C.A. Dismisses Appeal in 9/11 Defamation Case But Recognizes “Public Interest Responsible Journalism” Defence

The Court of Appeal today released its ruling in Cusson v. Quan, Ottawa Citizen et al. The case is an important one in the law of defamation and, in particular, to defences available to the media. The court dismissed an appeal from the decision of the jury at trial.

The plaintiff, Danno Cusson (above), was an OPP officer working in the Kanata detachment. On September 11, 2001, he was on patrol when he heard about the attacks on the World Trade Centre in New York City. At trial, he testified that because he had family members there, whom he had been unable to reach, he decided to drive to New York at the end of his shift to check on them. He packed his police uniform as well as some military clothing, a bullet-proof vest and his service revolver. Accompanied by his dog, “Ranger”, he set out for New York City.

Upon his arrival, he confirmed that his family was fine. He then offered his assistance (and that of Ranger) in searching for victims at “Ground Zero”.

The Ottawa Citizen published three stories about the plaintiff’s initiative, in September and October, 2001. It reported that Mr. Cusson had falsely represented himself to officials in New York as an RCMP officer and that he had claimed that Ranger was a trained search-and-rescue dog. It quoted the New York state police K-9 co-ordinator as having said that Mr. Cusson may have hindered, rather than helped, the rescue efforts.

Mr. Cusson returned to Ottawa on September 17, 2001, at which time he asked for a leave of absence from the OPP, to permit him to continue his rescue work in New York. When his request was refused, he offered his resignation from the OPP and went back to New York to resume his efforts at Ground Zero.

The OPP later conducted an internal investigation relating to his having taken his service revolver and his uniform out of the province without permission and the Citizen also reported on this.

Mr. Cusson sued the Ottawa Citizen and other defendants (including a reporter and Mr. Cusson’s former supervisor at the OPP) for defamation. His claim for damages was:

  • $1,813,639.00 for past and future income
  • $350,000.00 for general damages
  • $700,000.00 for punitive damages, and
  • $100,000.00 for exemplary damages.

The trial took six weeks before a jury and Mr. Justice Robert Maranger in Ottawa. After five days of deliberation, the jury awarded $125,000 in general damages. Of that sum, the Ottawa Citizen was held to be responsible for $100,000 and the OPP supervisor for $25,000. The jury found that there had been no actual malice on the part of the defendants and did not award any special, aggravated or punitive damages.

Following the trial, counsel for Mr. Cusson sought costs totalling $665,265.66, but Maranger J. fixed the costs at $246,512.66.

On appeal, the Citizen argued that the trial judge had erred in not applying the defence of qualified privilege. It also claimed to have been entitled to invoke what is referred to as the “public interest responsible journalism defence”, which has been accepted in other jurisdictions. The Court of Appeal found that that defence should also be available in Ontario but concluded that it did not apply on the facts of this case. The defence is available to media defendants where they can show that they “met the standards of responsible journalism when reporting on matters of public interest”.

(The “public interest responsible journalism defence” had not been raised at trial. It was partly on this basis that the Court rejected it in the present case, saying that it would not be appropriate to “give the appellants another ‘bite at the cherry’.”)

The Court of Appeal, made up of Justices Robert Sharpe (who wrote the decision), Karen Weiler and Robert Blair (who concurred), undertook a detailed review of media defences in defamation actions, both in Canada and other countries. It noted that the Canadian caselaw has been “in a state of flux and evolution” as to whether newspapers and other media organs are to be treated differently from other defamation defendants. The Court concluded that they should be (although it held that the facts did not warrant the application of the special defences in this case).

The Court acknowledged that the law of defamation seeks to balance freedom of expression with an person’s interest in protecting his or her reputation. However, it elected to liberalize the law in Ontario by finding that “the inhibiting effect of traditional defamation law is incompatible with the climate of free and robust debate to which a democratic society aspires”.

The test to be applied in the “public interest responsible journalism” defence is this: “a media defendant must show that it took reasonable steps in the circumstances to ensure that the story was fair and its contents were true and accurate.”

Even though it did accept the validity (in principle) of the “public interest responsible journalism” defence, the Court of Appeal rejected the Citizen’s argument, that the defence of “qualified privilege” should be extended to all media reports on matters of public interest.

Today’s decision will undoubtedly come as good news to the media. Even though this particular appeal was lost, the ground-breaking decision of the Court of Appeal will benefit media defendants in future cases.

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