In some of my posts, I have reported on court cases, bits of which I have gone to see.
As I am not trained in the law, nor particularly knowledgable on this topic, I found it somewhat bewildering when cases were cited as precedents and passages from their judgments were quoted for the record. Of course, that is the way our common law tradition has evolved – and I would not change it for the world!
However, I found that not knowing what these cited/quoted cases were about was a handica….
So, I looked them up.
In case you are in the same boat as I, I will post the links to them here (along with a quick comment – by me – as to what I think this case is about. Again, I must warn that my comments are just my layman’s observations and that the actual text of the case itself is what one ought to draw their own conclusions from.
As I needed to look up more cases/rules in order to understand the latest legal rulings (or as people suggest), I will add them to this list.
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WIC Radio v. Simpson
In this lawsuit, a ‘shock-jock’ was having a ‘debate’ with a local community activist on live radio. Predictably enough, the ‘debate’ quickly degenerated into name calling and the activist sued the radio station and the shock jock for damaging her reputation.
The case went all the way to the Supreme Court of Canada.
The ruling said that since no reasonable person would take ‘shock jock’ seriously, an average person would not have lowered his or her opinion of the activist based on this live radio spat and that therefore, no injury happened… No harm – no foul!
Yes, this is seriously paraphrased and dangerously oversimplified. For a more qualified comment, please, see here and here.
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McVeigh v. Boeriu
This case is from British Columbia.
It is a defamation case and, to the best of my understanding, it concerns a letter written about the activities of some member of a local council which administered essential services. It is important in the context of ‘free speech’ because it further helps to define what the criteria are for ‘defamation’ versus ‘fair comment’.
It is also important not because of what the desicion was, but because of how it had been arrived at. Now, I may not be absolutely correct, so please, check it out yourselves, but my impression was that rather than going to a full trial, the case was decided based on a ‘motion hearing’ – a sort of shortened and simplified form of a trial, called ‘summary judgment’.
This case is one example of where the ‘mini-trial’ was found to be a good option.
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Summary Judgment – Rule 20
Legal proceedings can drag for years and can be very, very costly. This has given rise to ‘lawfare’ – filing lawsuits simply to put the defendant through the long-drawn-out, costly and stressful legal process. In order to make the legal system more user-friendly and punishing those who have been found to be guilty (as opposed to those who are forced to defend themselves, regardless of guilt), there is a ‘mini-trial’ option.
In Ontario, this is called ‘Summary Judgment’ and is defined under ‘Rule 20’ of the Ontario Rules of Civil Procedure. These have been recently updated. The link for the list of amendments is here,just scroll down to the ‘Summary Judgment – Rule 20’ to read the relevant passage.
If I understand this correctly, the judge in a ‘summary judgment hearing’ will decide if the matter is so complex that it requires a full trial or if the evidence is simple/clear/undisputed enough that she/he can rule on it directly.
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Vigna V. Levant
Most readers of this blog are familiar with this one – a CHRC lawyer continued his presecution of Mr. Levant in Civil Court. Unfortunately, Mr. Levant’s colourful antics were a little too effective in demonstrating the true nature of this silly bunny….and, in the process, damaged his reputation.
The judgment reflects this. In some instances, Mr. Vigna was quite capable of demonstrating his own incompetence and Mr. Levant had been found innocent on those counts. In others, Mr. Levant was the more effective party in these demonstrations and was thus found guilty of damaging Mr. Vigna’s reputation…
July 22, 2011 at 16:40
[…] Some legal precedents… […]
July 22, 2011 at 16:41
[…] Some legal precedents… […]
July 25, 2011 at 00:38
None of these summaries are remotely accurate, either factually or as a matter of law.
In WIC, talk show host Rafe Mair read an editorial comparing Kari Simpson, an anti-gay activist who had been a frequent quest on his show, to various hateful historical figures. She sued, lost at trial, won on appeal, and lost at the Supreme Court of Canada.
WiIC is significant because the SCC held that an opinion expressed doesn’t have to be on the speaker honestly believes, but only one that any person could hold, based on the facts. That was an important change in the law regarding the defence of fair comments
Mair isn’t a shock jock and enough people take him seriously that he was credited in some parts for the defeat of the Charlottetown Accord.
McVeigh has nothing to do with fair comment. The defendant wrote letter about a civic politician and, when he sued, pleaded qualified privilege, a defence that protects comments about things like comments about the political process, complaints to consumer protection groups, and other situation where the person making the accusation and the person receiving both have an interest in the accusation, if even accusation may turn out to be untrue. In such cases, the defendant can only be found liable if the plaintiff can prove the defendants knew the accusation was false; i.e that is was made with malice.
In McVeigh, the defendant persuaded the court that, on the fact, this was an occasion of qualified privilege and the plaintiff was unable to prove malice. Therefore, it was a matter suitable for summary trial, which is a trial based on affidavits and other documents
As Vigna v Levant, if Levant did, in fact, demonstrate the “true nature” of Mr. Vigna, he wouldn’t have lost. In fact, the court found that Levant made a large numbers of defamatory accusations against Vigna and wasn’t able to prove the truth of any of them. The only claims that Levant wasn’t found liable for were those the court decided were not defamatory as a matter of law.
My favourite part of the judgment is the part where the judge discusses Levant’s attempt to argue that accusing someone of “fibbing” isn’t the same as accusing someone of “lying”. That bit of logic chopping went over about as well as Bill Clinton’s infamous “That depends what you mean by is”.
Like I warned, my perception is necessarily flawed, as I do not have legal training. That is why I link to the cases themselves, so people can form their own opinions.
Re the WIC case: The designation ‘shock jock’ for Mair came from ‘legal’ assessments of the case – he was also referred to as a ‘shock-jock’ by various lawyers whom I heard refer to this case in court. That is why I used that term… The decision on the WIC case has been cited in court as a justification that ‘hyperbole’ or ‘simple insults’ do not constitute ‘defamation’ if the context makes it clear that that is what they are. An example would be that if one were called ‘an imbecile’ – that would be a ‘simple insult’ and not an assertion over a person’s actual IQ test scores (even though the term ‘imbecile’ is/was used as a medical diagnostic term for specific ranges of IQ range in mentally retarded patients).
Re the McVeigh case: thank you for the clarification, it is appreciated. The McVeigh case was indeed raised in court to assert that the condition in the Baglow case are similar and therefore well suited to a sumary judgment.
July 25, 2011 at 21:26
The idea that mere insult is not defamatory doesn’t originate with WIC, nor is it essential to that decision. If you’re looking for informed commentary on SCC cases, you should be able to find them online without much difficulty. Contrary to the mantra of the blogosphere, all opinions on legal decisions are not equally valid.
truewest – you are absolutely correct!
People should do some reading up on this on their own and not take my word for it. I am fully aware that I am not a legal expert – which is why I stress so strongly that these are only my own impressions and poor and imperfect understanding of the issues. I comment on what I see and hear, yet I also understand that I am understanding less than a quarter (if that) of what is actually going on.
So, yes, we are in full agreement.
And I thank you for again raising this important point and supporting me in my urging of people to go and check this out on their own!
March 12, 2014 at 14:23
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