A $1.5 million libel award against the Star should be struck down because it fails to recognize the new defence of "responsible journalism in the public interest," the Ontario Court of Appeal has been told.
The case should never even have gone to the Northern Ontario jury that made the award, Star lawyer Paul Schabas told a three-judge panel of the appeal court yesterday.
The June 23, 2001, article, about cottagers' opposition to businessman Peter Grant's plans to expand his private Frog's Breath golf course, was "serious investigative journalism that our law must protect and preserve," Schabas said.
Superior Court Justice Paul Rivard should have ruled that the story was the result of basic good journalism, and on a matter of public interest, and therefore protected by freedom of expression as guaranteed in the Charter, Schabas said.
The "responsible journalism" defence against libel claims was recently recognized by the Ontario appeal court in a case involving the Ottawa Citizen, after being established and applied in Britain.
But Peter Downard, Grant's lawyer, called the Toronto Star story a "carefully designed exercise in defamatory insinuation."
The article, by Star writer Bill Schiller, was "artfully structured" to falsely imply that Grant, a friend and supporter of then-premier Mike Harris, was using his government ties to improperly bypass the proper approval processes for his golf course, Downard said.
The trial judge gave a "fair and balanced charge" to the jury, Downard said. Responsible journalism "doesn't mean the media can do whatever it wants," he said.
In February 2007, the jury in Haileybury, 160 kilometres north of North Bay, awarded $1.475 million in damages against the Star, finding it libelled Grant and his company, the area's major employer. The award, which included $1 million in punitive damages, was one of the largest in Canadian libel history.
Grant and his firm, Grant Forest Products Inc., sued over the article, headlined "Cottagers teed off over golf course; Long-time Harris backer awaits Tory nod on plan."
Last November, the Ontario Court of Appeal gave the media enhanced freedom to publish information that the public has a legitimate interest in knowing, carving out a "public interest responsible journalism defence." Schabas argued Rivard failed to adequately consider this defence, which was put to him at trial and was already well established in British law.
Grant's objections centred on a quote by Lorrie Clark, a cottager who opposed the golf course expansion. "Everyone thinks it's a done deal because of Grant's influence – but most of all his Mike Harris ties," she had told Schiller.
Downard argued yesterday that Schiller admitted on the stand he had no evidence that her suspicions were true. Schabas argued that Schiller was merely reporting an "honestly held opinion" of cottagers, not adopting it as fact.
Downard said the trial judge correctly told the jury that this statement was "capable of being considered as a statement of fact" and therefore libellous.
The Star didn't have any evidence Grant did anything wrong, but nevertheless attacked his character, portraying him "as an angry man with deep pockets," Downard said.
The three judges – Kathryn Feldman, Janet Simmons and Marc Rosenberg – reserved their decision.