Released July 2, 2015 | CanLII
This lawsuit was commenced in relation to the violation of a publication ban by the defendant, Sun Media Corporation, after a long and complex criminal proceeding involving Gregory Last, accused of various offences including sexual assault.
Briefly, the accused was convicted in 2005, lost on appeal, but had his convictions set aside by the Supreme Court of Canada in 2009. The court ordered that the counts against the two complainants be re-tried separately.
The Plaintiff, Jane Doe, was under subpoena to testify in the trial relating to the second complainant, scheduled to commence on October 25, 2010. The trial did not proceed as Mr. Last’s lawyer removed himself from the record. At that time, however, the Crown secured a non-publication order under section 486.4(1) of the Criminal Code. The ban included “any information that could identify the complainant or any witness in this proceeding…” The request was granted by Justice Bryant, although no formal order was prepared. It is noteworthy that Ms. Doe had testified in the original proceeding and that material was not subject to a publication ban.
Jane Sims, a reporter for the London Free Press, a Division of Sun Media, was present when the order was made. She reported it on October 25, 2010, and correctly described the breadth of the ban.
However, on March 7, 2011, when the re-trial commenced before Justice Leitch, her Honour asked Crown counsel about the publication ban. The Crown erroneously described the ban as extending only to the complainant. As a result, following Ms. Doe’s testimony on March 9, 2011, her actual name appeared several times in the London Free Press article of that day, both online and in print. The material was prepared by Ms. Sims.
Following discovery of the error, the defendant gave instructions to delete references to Ms. Doe’s name in the online version, which were only partly successful.
Ms. Doe sued Sun Media and Ms. Sims for the breach. It was agreed that no liability rested with Ms. Sims personally, and that Sun Media was vicariously liable for her actions.
Justice Grace canvassed the case law and determined that the appropriate grounds for recovery were in negligence. He identified a relationship between Sun Media and Ms. Doe of sufficient proximity to create a duty of care. Sun Media did not raise any policy considerations that might negate the duty of care.
Following L.R. v. Nyp, Justice Grace accepted that the standard of care applicable in this case was that of the reasonably prudent reporter. He found that Ms. Sims had failed to meet this standard. Although she had purged her notes from the October 25, 2010 court appearance, she had published an article, preserved online, that correctly identified the terms of the order, and could have reviewed it had she chosen. While it was not Ms. Sims’ fault that the Crown failed to provide Justice Leitch with an accurate description of these terms, Justice Grace held that this error did not affect the level of performance expected of journalists who have a responsibility to familiarize themselves with the existence and scope of a non-publication order.
Because no one in attendance could have known that Justice Leitch would raise the issue of the non-publication order at commencement of the re-trial, Justice Grace held that a reasonably careful journalist would have reviewed the terms of the order prior to commencement of the re-trial in March, 2011. Therefore, Ms. Sims failed to meet the standard of care.
Turning to damages, Justice Grace provided a thorough consideration of Ms. Doe’s past, which included previous psychological issues, a history of narcotic use, criminal behaviour and prostitution. The question before the court was whether Ms. Doe had sustained a compensable personal injury as a result of the breach; or, whether the publication of her name had caused the injury in fact and in law.
Justice Grace found that at least a portion of Ms. Doe’s current symptoms was attributable to the breach. Whether the breach caused the injury at law required a consideration of the remoteness analysis in Mustapha v. Culligan of Canada Ltd., where the Supreme Court confirmed that the mental injury at issue must be capable of occurring in a person of ordinary fortitude.
His Honour accepted that it was reasonably foreseeable that a person of “ordinary strength, courage and resilience” would suffer a psychological injury in the circumstances of the case. Therefore, the defendant was obliged to take Ms. Doe as it found her, despite her pre-existing vulnerability.
Damages were set at $40,000. No amount was awarded for punitive or aggravated damages.
