Stringam Denecky LLP v Sun Media Corporation 2017 ABQB 687

The plaintiff represented a client in a family law matter. The client had applied for all of the accounts to be reviewed by the Assessment Officer. The client provided an affidavit to assist in this effort and that affidavit was given to the defendant by a confidential source.

The defendant, Kevin Thornton, wrote three articles about the review of the lawyers bills, which were published in Fort McMurray Today, and on the defendant’s blog.

The plaintiff brought an action against the defendant, Sun Media and the journalist. In that action the statement of claim attaches the articles as a schedule. When the lawsuit proceeded to questioning, the defendant refused to answer any questions relating to the confidential source, on the basis of “journalistic source privilege”.

The plaintiff brought an application to compel answers to questions about the source, including the source’s identity.

At first instance, the Master determined that there were two questions to be answered in the application; whether the questions being asked met the threshold for relevance and materiality under the Rules and, second, whether the importance of disclosure to the administration of justice outweighed the public interest in maintaining the confidentiality.

In the earlier judgment, it was found that the evidence that would result from this line of inquiry met the rule 5.2 threshold.

The four Wigmore factors were then considered. When considering the fourth factor, “balancing protection with finding the truth”, Master Schlosser states that, as part of the analysis of the fourth factor, there were nine additional factors that had to be brought into the analysis, as found in National Post (SCC 2009)and Globe and Mail (SCC 2009).

Master Schlosser concluded that:

This is not a case that would permit the Court to look at some evidence (ie the name of the source) and decide whether the confidence should be maintained. Counsel should be permitted to explore the identity and the situation of the source, given the centrality of the issue to their case and the circumstances of the promised confidentiality.

In appropriate circumstances there should be built-in consequences for the failure to respond to this questioning. Normally, there would be a contempt remedy available for the breach of a Court Order. But here, given the onus, the Defendant may wish to adhere to higher principles by maintaining the confidence. In those circumstances, the consequence should be either to strike those portions of the defense relating to qualified privilege, or responsible comment or, alternately, to impose a deemed admission of malice, improper motive or recklessness.

The application was granted.

On appeal, Justice Browne found:

…I am not satisfied that the questions Stringam seeks answers to are relevant and material. That is, I am not satisfied that information about Thornton’s source, including the disclosure of the source’s identity, can reasonably be expected to significantly help determine an issue raised in the parties’ pleadings, or ascertain evidence that could reasonably be expected to do so. Accordingly, Thornton is not obliged to answer the questions.

The issue of journalistic-source privilege was not ruled on. Justice Browne states:

As a result of finding that Stringam’s questions regarding the source are not relevant and material, and, consequently, need not be answered, there is no need for me to consider whether Thornton’s objection to the questions on the basis of journalist-source privilege should be upheld.