August 31, 2012
Vellacott v. Saskatoon Starphoenix Group Inc. 2012 SKQB 359
The Plaintiff was first elected in 1997. In the 2002 Canadian Alliance Leadership race, Mr. Vellacott was a strong supporter of Stockwell Day, who was running against Stephen Harper for leadership of the new political party. During the leadership campaign, Mr. Vellacott distributed two mailouts to his constituents endorsing Mr. Day as party leader. The campaign literature was sent using Mr. Vellacott’s MP free mailing privileges. Supporters of Stephen Harper contacted the StarPhoenix and criticized Mr. Vellacott’s use of taxpayer money towards an internal party leadership campaign.
The first newspaper story published by the StarPhoenix contained many of the Harper supporters’ criticisms of Mr. Vellacott. In the various interviews performed by the StarPhoenix, Harper supporters indicated that it was “crooked” to use the MPs’ free mailing privileges in an internal party leadership campaign and that Mr. Vellacott was elected to represent his constituents, not “steal” from them. One individual went so far as to indicate that it had elements of “Jim and Tammy Faye Bakker”. Mr. Vellacott was quoted in the story and defended his use of his mailing privileges.
The second newspaper story published the following day contained interviews of other politicians, particularly from the NDP, about their views on the use of Mr. Vellacott’s mailing privileges. Some of the comments reported in the story were that Mr. Vellacott’s actions do not “pass the smell test” and that he broke the “spirit” of the MPs’ mailing regulations.
The defences of responsible journalism (communication), qualified privilege and fair comment are reviewed at some length by Justice Danyliuk. He ultimately determines that both newspaper stories, to the extent that there was any defamation, are saved under all three defences.
With respect to the defence of responsible journalism, Danyliuk J. finds that the two articles “engaged the public interest ”. He goes on to state at para. 83:
The defendants have met all the criteria required to establish the defence of responsible journalism. In many respects, the defendants appear to have gone beyond what is required. This defence avails the defendants and, accordingly, I dismiss the plaintiff’s claim on this basis.
Justice Danyliuk goes on to do a significant review of the law of qualified privilege at paragraphs 84 to 94 of the decision. He indicates that it may be that the defence of qualified privilege has been subsumed in the context of media defendants into the responsible journalism test. However, he indicates that the common law trend is to expand the defence of qualified privilege to media defendants and thus he was prepared to do the same in this case.
Finally, on the fair comment defence, Justice Danyliuk indicates that all of the facets of the defence were made out and, thus, the articles were successfully defended on this basis as well. He contrasts the words spoken in this case with those in WIC Radio Ltd. v. Simpson, 2008 SCC 40, (where the plaintiff was compared to the KKK and many other notable extremists) to make the point that the content of these articles was rather benign.
The decision is a good summary of the law of defamation and the defences to defamation claims. No appeal has yet been commenced.