July 17, 2015
Kent v Postmedia Network Inc 2015 ABQB 461

Don Martin, a reporter for the National Post and Calgary Herald, wrote an article about Arthur Kent’s ultimately unsuccessful campaign in the Alberta Provincial General Election in February 2008. At the time the article was published Gordon Fisher was the publisher of the National Post.In May 2008 Mr. Kent served the newspaper and Mr. Fisher with a notice of intent to sue for defamation.

In July 2008 Mr. Kent commenced his action against Don Martin, the author of the article, The National Post Company, Canwest Publishing Inc., National Post Holdings Ltd., and Canwest Mediaworks Inc (the “Canwest Action”).

In July 2010 Postmedia acquired the assets of Canwest, including the National Post. Postmedia assumed responsibility for the conduct of the Canwest Action.

In October 2010 Mr. Kent served Mr. Godfrey and Mr. Fisher each with a notice of intent and commenced his action in November 2010.

In their application for summary judgment, both Mr. Godfrey and Mr. Fisher specifically denied that they were proper parties to the action on the basis that neither of them had any input, control, responsibility, authority or involvement personally with the article or in the editorial content of the corporate defendants’ websites.

The action against Mr. Godfrey and Fisher was consolidated with the Canwest Action and has been set for trial commencing in November 2015.

Madam Justice Campbell states that the issue for determination in this summary judgment is:

…whether the record supports a genuine issue requiring a trial as to the personal liability of the two individuals, separate and distinct from that of Postmedia and the National Post, in the alleged defamation of Mr. Kent.

As part of his argument, Mr. Kent referred to the recent case of Weaver v Corcoran, 2015 BCSC 165..in which the Court did not accept Mr. Fisher’s argument that there was no evidence that he had played a role in the publication of the impugned article and refused to dismiss the case against him.

Campbell J. states:

Mr. Godfrey and Mr. Fisher assert that the majority of the Supreme Court of Canada in Crookes ruled that defamation requires a deliberate act of publication before personal liability can be found…Subsequent decisions confirm that liability arises from a defendant’s active engagement, control and authority over the location of the defamatory information. A failure to remove defamatory information will result in liability only in circumstances in which it was a deliberate act: Baglow v Smith, 2015 ONSC 1175 at paras 192-196.

Campbell J. goes on to state:

On the facts before me, I see no evidence of any action on the part of Mr. Godfrey or Mr. Fisher that would make publication or republication of the Article their own deed, rather than an act of Postmedia or the National Post. I find that neither Mr. Godfrey’s nor Mr. Fisher’s role within Postmedia or the National Post was such as to charge them with control over editorial content or control over the content published on Postmedia websites. As such, their failure to take independent active steps to remove the Article from Postmedia’s websites is not a sufficiently separate act to make publication of the Article their own defamatory act.

Campbell J. concludes:

…I find the Weaver decision to be of little authoritative assistance in determining whether Mr. Fisher, in the roles he had with National Post and Postmedia, could be held personally liable for publication of the Article and as such a proper party to the Action. The Court in Weaver provided little insight into its reasons for finding on the facts before it that Mr. Fisher had an actionable role in the defamation in that case. As such, I cannot conclude that the circumstances in that case are akin to those in issue here.