Sykes v. Fraser

Sykes v. Fraser
Collection
Supreme Court Judgments
Date
1973-06-05
Report
[1974] SCR 526
Judges
Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Hall, Emmett Matthew; Spence, Wishart Flett; Pigeon, Louis-Philippe; Laskin, Bora
On appeal from
Alberta
Subjects
Torts
Decision Content
Supreme Court of Canada
Sykes v. Fraser, [1974] S.C.R. 526
Date: 1973-06-05
J. Rodney Sykes (Defendant) Appellant;
and
Robert P. Fraser (Plaintiff) Respondent.
1972: December 11, 12, 13; 1973: June 5.
Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION
Defamation—Solicitor acting for land developers in negotiations with municipality—Proposed shopping centre approved by City Council—Group later collectively castigated by mayor in public statement—Allegations of breach of faith and deception—Solicitor’s libel action successful.
The plaintiff was the lawyer and chief negotiator for two companies in negotiations with a municipality concerning a general development plan and a proposed shopping centre. The suggested closure of a traffic artery to the north of the shopping centre was the main outstanding difference between the developers and the city. At a meeting of City Council the plaintiff stated that he could give no assurance that the centre would be built if the street in question were closed, but that his instructions were that it would be built if the street were left open, and in the result Council approved the shopping centre plan on this basis.
The mayor was absent from the Council meeting at the time the shopping centre matter was discussed. Later, however, this matter was the subject of two press conferences in the course of which the mayor made allegations of “breach of faith” and “deception of Council and myself”. A statement by the mayor indicated that, following his election, he had been told by the principal developer that the latter “couldn’t care less” about the traffic artery and that it was immaterial to him whether or not it was closed. The plaintiff alleged that what was published as a result of the two press conferences was defamatory of him in falsely imputing bad faith, improper tactics and deception, and thus impugning his character, and his honesty and integrity as a member of a profession. The trial judge found in the plaintiff’s favour and awarded “punitive and aggravated” damages in the total sum of $10.000. His judgment was affirmed on appeal.
The appeal of the defendant mayor to this Court was first argued before a Bench of five but was later reheard by the full Court for the purpose of hearing argument on the following question:
Whether one member of an associated group of three persons may succeed in a libel action where
(1) the group is collectively castigated in a public statement;
(2) the castigation is not actionable by the other two;
(3) he is not singled out for particular mention in the statement;
(4) the castigation is made because of a commitment on a public matter by his associates made to the publisher of the statement but which he, as their spokesman, denies or from which he recedes; and
(5) he is unaware at that time of the commitment made by his associates.
Held (Hall, Spence, Pigeon and Laskin JJ. dissenting): The appeal should be dismissed.
Per Fauteux C.J. and Abbott, Martland, Judson and Ritchie JJ.: As a result of a meeting with spokesmen for the development companies, the mayor was fully aware, more than two weeks before the City Council meeting, that the attitude of the developers was that which was later stated to the Council by the plaintiff. This being the case, there was no breach of faith by either the developers or the plaintiff and no deception was practised on either the Council or the mayor. The words complained of were defamatory and the defence of qualified privilege could not be claimed for the occasions upon which the defendant made his publications.
As to the first two items of the above question, the group was collectively castigated by the defendant’s statement, but it was by no means certain that the castigation would not have been actionable by the other two members of the group, and in any event it would not have been desirable to make a final disposition of the question in these proceedings. As to the third item, when the words used in the defendant’s statement were read in light of the circumstances giving rise to their use, they were clearly capable of referring to the plaintiff and did in fact refer to him. Accordingly, he was, in fact, singled out for particular mention in the statement.
As to the fourth item, no commitment was made by any member of the group in relation to the closing of the street north of the shopping centre.
As to the fifth item, whether the plaintiff was acting as solicitor, spokesman or real estate agent for the developers, and whether or not the alleged commitment had been made, his lack of knowledge of such commitment would divorce him from his associates so that if, acting in good faith and on his principals’ instructions, he made representations which turned out to be misleading and a breach of faith on the part of his principal, he could not be stigmatized as one who had misled and deceived the body which he was addressing without having any recourse to an action for defamation.
Per Hall, Spence, Pigeon and Laskin JJ., dissenting: The answer to the question posed should be in the negative. The plaintiff as a spokesman for clients who proved to be faithless—apparently to him as well as to the defendant—could not at one and the same time be their spokesman in a matter of mutual concern to them and to the defendant, and yet stand apart from them in that very matter when they were rightly charged with breach of faith in terms that embraced him with them but not separately. This was not a case where the plaintiff had been singled out as one who had broken faith or had acted discreditably either as a person or as a professional man.
[Capital and Counties Bank Ltd. v. Henty & Sons (1882), 7 App. Cas. 741; Bulletin Co. Ltd. v. Sheppard (1917), 55 S.C.R. 454, referred to.]
APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], dismissing an appeal from a judgment of Lieberman J. in favour of the plaintiff in a libel action. Appeal dismissed, Hall, Spence, Pigeon and Laskin JJ. dissenting.
J. Stein and R.A. Mackie, for the defendant, appellant. J.H. Laycraft, Q.C., and H.M. Kay, for the plaintiff, respondent.
The judgment of Fauteux C.J. and Abbott, Martland, Judson and Ritchie JJ. was delivered by
RITCHIE J.—This is an appeal from a judgment of the Appellate Division of the Supreme Court of Alberta which affirmed the judgment rendered at trial by Lieberman J., whereby he awarded damages to the respondent in the sum of $10,000 in respect of defamatory statements about him which were found to have been made and published by the appellant.
The defamatory statements were published at the height of what has been referred to as a “nice hot political issue” in the municipal government of the City of Calgary and this is undoubtedly a case in which it is desirable to understand the background against which these statements were made.
The plaintiff, who is the respondent in this appeal, was a barrister and solicitor in good standing whose practice was largely concerned with “land development, subdivision of land, planning and major mortgage work”, in which capacity he had incorporated Carma Developers Limited and was the lawyer and chief negotiator for that company and R.C. Baxter Limited of Winnipeg, in negotiations with the City of Calgary which took place between July and September, 1969, concerning the subdivision and development of an area to the northwest of the city which was a Carma project and creation of a “northwest Market Mall” which basically consisted of a regional shopping centre with two department stores to be built on 45 acres of land by the R.C. Baxter Ltd. interests.
On October 15, 1969, the appellant, who was a real estate developer, investor and manager, was elected mayor of the city in an election where he states:
The principal issues were housing, taxes and planning, and in respect of planning specifically the proposition that residential neighbourhoods should be protected from traffic, and that is if the rights of home-owners and home-buyers to the quiet enjoyment of the homes in which they have placed their savings should be protected, and that it was City Council’s obligation to offer them this protection. Apart from that there was one overrriding proposition, I think, which simply was that public business should be done in public.
At the time when the mayor was elected the negotiations concerning the shopping centre had reached a point where consideration was being given by all concerned to submitting the project to the City Council for approval. The mayor had not concerned himself with the details of the plan and in particular he was not familiar with the road patterns in the area, but during his election campaign he had discussed what he referred to as “this 40th Avenue problem” with a group of his constituents. As this “problem” and commitments allegedly made concerning it are central to the whole issue in this appeal, it is as well to understand that at the time of the election the “problem” was concerned with the question of whether 40th Avenue should be extended to the west of 53rd Street to serve the new development proposed by the Carma interests in that area, or whether it should be closed off at 53rd Street. This question was of no importance to the Baxter company whose concern was limited to obtaining approval for the construction of the shopping centre. The matter is well described in the evidence of Hamilton, who was the commissioner of Operations and Development for the City of Calgary, and who said that:
Somewhat independently of the developments on the shopping centre, as it was then proposed, Carma Developers Limited were proposing to extend their residential development to the west of 53rd Street which, at that time, was the western limit of the newly developed Varsity Village and Varsity Acreage sub-divisions. To serve this prospect of new residential development, it was proposed to extend 40th Avenue, as the principal carrier. 40th Avenue had not been shown extending west of 53rd Street in previously published brochures that Carma had prepared for the purpose of selling and promoting their existing subdivisions, and the residents of the area, noting this intention to extend 40th Avenue, began to express great concern that 40th Avenue would, in fact, become a very heavily travelled street to the detriment of their houses, particularly those located directly on it, and would have other undesirable effects, if this were so, of splitting school districts, so that children would be required to cross this heavily travelled street and so on. In short, the question of the extension of 40th Avenue was becoming a nice, hot local political issue.
Mr. Hamilton added that this growing problem was of course of great concern to the mayor. This was the only 40th Avenue problem known to either the mayor or the Baxter interests on the day after the election (October 16th) and there is really no dispute about the fact that the question of whether or not 40th Avenue was to be extended beyond 53rd Street or closed off at that point was of no importance to the shopping centre project, nor did the respondent so represent it at any time.
It was not until the end of a meeting held on October 22nd at which the Mayor presided, accompanied by Hamilton and his executive assistant and attended by Mr. Waisman, who was authorized to speak for the Baxter interests, Mr. Combe of Carma and the respondent, that it was for the first time suggested by one of the city administrators concerned with road patterns, that 40th Avenue should be closed off or dead-ended directly to the north of the shopping centre. It is not quite clear in what words Mr. Waisman expressed himself, but there is no doubt from reading the evidence of the respondent and Mr. Hamilton, that he did not agree with this suggestion and in fact, as will hereafter appear, he was not in any position to do so at that time. As the respondent said: “He did not want it closed. Obviously, closure of that Street as a major street would affect traffic, or could affect the traffic pattern considerably.”
The mayor must have known that the question of approval of the shopping centre agreements had been placed on the agenda for the City Council meeting on November 10th and at that time he must also have known from the discussions that had taken place on October 22nd that the developers were opposed to closure of 40th Avenue north of the centre and that this was the main outstanding difference between the developers and the city. At the Council meeting the respondent, as the sole spokesman on behalf of the Baxter interests, made representations which were in accordance with the discussions that had taken place on October 22nd, but by the time that this matter was discussed, the mayor had absented himself due to a previous engagement and he thus had no first hand knowledge of what was said. On being questioned by the deputy mayor, the respondent stated that he could give no assurance that the shopping centre would be built if 40th Avenue were closed to the north of it, but that his instructions were that it would be built if the avenue were left open, and in the result the City Council approved the shopping centre plan on this basis by a vote of 7-4.
It was against this background of fact that on November 12th the mayor called together a special press conference of all the news media representatives for the purpose of publishing the first of his statements containing part of the alleged libel of which the respondent complains in this action. The only reason that this conference was not called until the 12th was that, as the mayor explained, November 11th was a holiday and he was engaged in representational duties from which he did not return until 3 or 4 o’clock in the morning, so that it was not until the next day that he was able to address himself to the question of the City Council vote on the 10th. He was then very angry and later in the day, after writing out a statement in long hand, he proceeded with arrangements to give it the widest possible publicity.
His statement is comparatively long and as it has been reproduced in the reasons for judgment of both the Courts below (see [1971] 1 W.W.R. 246 at pp. 252-3 and [1971] 3 W.W.R. 161 at pp. 171-3), I do not think that anything is to be gained by repeating it in full. The gist of the appellant’s statement in so far as it affects the respondent is that on the day after his election (October 16th) in the course of a long distance conversation with R.C. Baxter, who was in Toronto, the latter said that he “could not care less about 40th Avenue; that it had never been of any importance to the shopping centre project and that he would have no objection to 40th Avenue being closed if that were Council’s wish.” The statement later continued to describe a meeting at which Waisman and the respondent were present and it is said that “Mr. Waisman said that he agreed with Mr. Baxter that 40th Avenue was not of great importance to the shopping centre project…”. There later follows the statement that at the Council meeting that considered the agreement, the developers “did not make it clear that 40th Avenue did not matter to them…”, and finally, the mayor recounts a telephone conversation in which he told Baxter that “I consider there to be a serious breach of faith in his firm’s handling of the matter”. It is perhaps as well to reproduce the whole of the paragraph in which this last statement is made:
I telephoned Mr. Baxter on the morning of November 12 and told him that I was shocked at the approach adopted by his representatives, who had handled matters very skilfully indeed in my absence from Council, and that I considered there to be a serious breach of faith in his firm’s handling of this matter. I told Mr. Baxter that I would make a statement to this effect late in the afternoon failing my receiving a wire confirming that he had no objection to Council dealing with 40th Ave. on its own merits. Mr. Baxter, and Mr. Waisman (two conversations in the same day) confirmed my understanding of what I said to them and what they said to me—but they said that they hadn’t realized that I thought it was so important, or that I took their statements as commitments.
Mr. Baxter stated that Mr. Fraser had been authorized to accept ratification of the agreement conditional on closing 40th Ave. I do not believe that Council understood that this was the position when it voted on Monday night. As will hereafter appear, I consider that these two paragraphs of themselves constitute singling Fraser out by name as a lawyer who could not be relied upon to carry out his client’s instructions and whose failure to do so constituted a serious breach of faith.
The following excerpts from the mayor’s statement of November 12th are complained of as being libellous to the respondent:
(a) Had I been present, as unfortunately I was not, I would have been able to deal effectively with the tactics adopted by the developers…
(b) I telephoned Mr. Baxter on the morning of November 12th and told him I was shocked at the approach adopted by his representatives who had handled matters very skilfully, indeed, during my absence from Council and that I considered there to be a serious breach of faith in his firm’s handling of the matter.
The day after the mayor had summoned his special press conference and made his statement, a regular City Hall press conference was held which took the form of a question and answer interview during the course of which the mayor made the following statements to the press, radio and TV concerning the Council meeting on November 10th which are also complained of as being libellous to the respondent:
(c) The matter had not been settled if the Council has been misled.
(d) There has been no misunderstanding on what was said. In my opinion they were practising deception of Council and myself.
(e) The question is are they going to do business in Calgary with their cards on the table, or continue the games they are playing?
I think it important to appreciate that the mayor was first made aware of the proposal to close off 40th Avenue to the north of the centre towards the end of the meeting of October 22nd and that Mr. Waisman, speaking on behalf of the Baxter organization, then made it clear that such closure could not be agreed to.
Like the Courts below, I accept the respondent’s version of what took place at that meeting and I think it desirable to reproduce a substantial part of his evidence in this regard:
Q. Would you describe what went on at the meeting?
A. I can’t give you the exact conversation, but in general my recollection is that Mr. Hamilton, who was there representing the City administration, indicated that the meeting, that we were there to discuss the Northwest Market Mall, but that so far as the City administration was concerned, the development agreements had been proceeded with to the point that they were ready to go to City Council, and that so far as the developers were concerned it was a matter of some urgency that they get on. I think that the Mayor acknowledged that he was aware of some of the background of the Northwest Market Mall. He pointed out to us that he had just been elected by a very substantial majority, but that during the course of his election campaign he had heard numerous objections from citizens relating to 40th Avenue, or the Northwest Sector Plan, I suppose and/or the shopping centre, although I don’t think the shopping centre was specifically objected to; that so far as he was concerned he was not personally familiar with the contents of the agreements the arrangements that had been arrived at by the city with the developers; that he had not had time to digest them, that they were complicated, and that he was, I think he indicated that he was prepared to accept them, that he would not second guess the people who had approved them on behalf of the City. Those words ‘second guess’ are an exact quotation.
The respondent went on to recount the discussion concerning 40th Avenue saying:
However, what was discussed was the question of where, of whether 40th Avenue would be closed, that is would not be extended west of 53rd Street.
* * *
The areas to the west of 53rd Street were designated for future development, for future residential areas, which would house large numbers of people. I think that basically the objection which had been raised by at least some of the citizens was that by bringing 40th Avenue in from the west it would make the portion of 40th Avenue that is shown on this photograph as existing a major thoroughfare. I am not certain that that is accurate as far as terminology is concerned, but it would carry a lot more traffic than they wanted it to carry. Both Mr. Combe and Mr. Waisman, speaking for their respective companies, indicated that they and their companies had no objection to any manhandling that the City might choose to make to 40th Avenue West of 53rd Street; it could be dead ended, it could have been put out as the City planning department wanted and as the then plans projected, it could have been in effect looped around to the north; there was no objection, and both Mr. Waisman and Mr. Combe spoke to that point. Then, and this was close towards the close of the meeting, my recollection is that the Mayor took no part in those discussions, although the comments were in fact addressed to the Mayor. Towards the close of the meeting Mr. Cornish, who, as I have said, was the person in the City Administration who really had the day to day conduct of these things, and was in effect the trouble shooter for the Board of Commissioners, asked Mr. Waisman, or pointed to a plan which was laying on the Mayor’s desk, I don’t recall whether it was open or not, it had not been involved in the conversation previously, but he pointed to the plan and said to Mr. Waisman, “Would you have any objections to closure of 40th Avenue…” now I don’t recall whether he said here or north of the shopping centre, but he pointed to the plan and I will mark the letter “X” to the general area that he was referring to. Mr. Waisman’s reply to that was immediate and completely negative.
This was a clear reference to the suggestion that 40th Avenue should be closed to the north of the shopping centre and the point marked “X” had become generally referred to at City Hall as “check point Charlie.”
As I have indicated earlier, there is some doubt as to the exact words used by Waisman in disagreeing with the closure of 40th Avenue north of the shopping centre, and in the final stages of his examination the respondent indicated that he could not remember Waisman having actually said “No”. It is, however, clear from the evidence of Hamilton that Waisman, speaking for the company, not only did not but could not agree to the proposed closure because at the time of the meeting the company that they expected to take a lease on the northern of the two departmental stores, which were the anchors of the centre, had not agreed to the proposal.
It is interesting to note what the mayor had to say about the proposal to dead-end 40th Avenue. In the course of his evidence he said, in part:
Now, there was a map placed on the corner of my desk, and the desk was a thing of black marble about 8 feet long, and a long way from me, and this plan showed a particular traffic solution that was, I believe, what Commissioner Hamilton referred to as Check Point Charlie. It was the pet baby of Alderman Petrasuk, I think, and perhaps some other people in the City Hall, I didn’t address myself to it at all, and they started to discuss this. Towards the end of the meeting I suggested that they carry on their technical discussion outside my office, I wanted no part of it, so they went out, all of them, still carrying their plan and their bits of paper and still talking.
The mayor later said of Waisman’s conduct at the meeting:
He wasn’t concerned with policy and he wasn’t concerned with Dick Baxter and Baxter’s conversations with me,…
Waisman was the man of whom the respondent said in relation to the shopping centre negotiations between the company and the city:
He was the principal, the man who so far as the Baxter/Waisman organization was concerned had the conduct of the matter.
The learned trial judge, who accepted Fraser’s version of what took place, described the proceedings at the meeting as follows:
The plaintiff says that the question of 40th Ave., N.W. was dealt with at the meeting but that the point in issue was its extension to the west of 53rd St. and the objections that the residents would have because of the resulting increased traffic flow. Combe and Waisman indicated that they would have no objection to such an extension.
The defendant, according to the plaintiff, took no part in this discussion although some remarks were addressed to him. He says that towards the end of the meeting, which lasted for approximately one half hour, Cornish pointed to a plan lying on the defendant’s desk, and asked Waisman if he would have any objection to the closure of 40th Ave. N.W. at a point north of the shopping centre. This point is marked “X” on the plan, Exhibit No. 12. Waisman immediately replied that the developers did not want 40th Ave. N.W. closed at this point. This was the first time that the plaintiff had heard of this suggestion. He felt that the purpose of this meeting was to get the project before City Council at the earliest possible date.
In the course of his press release of November 12th, the mayor made the following statements concerning the meeting that he had held with Waisman and several of his associates (Messrs. Combe and Fraser):
(i) Mr. Waisman then said that he agreed with Mr. Baxter and that 40th Avenue was not of great importance to the shopping centre project and he said further that the 40th Avenue situation had been produced by City Hall and not by the shopping centre project.
(ii) I made it clear that this position, that the Council could deal with 40th Avenue (close it or leave it open) independently of the shopping centre must be clear to Council - - - that the developers must make it clear that 40th Avenue did not matter to them and on that basis I believed that I could support the project.
The respondent gave the following evidence concerning the allegation that these statements had been made at the meeting:
Q. Going on with the statement: “Mr. Waisman then said that he agreed with Mr. Baxter…” Did he say that?
A. No.
Q. “…that 40th Avenue was not of great importance to the shopping centre project;” Did he say that?
A. No, sir. If any—any statement Mr. Waisman made with relation to 40th Avenue, other than the democracy bit that I referred to, was made with relation to 40th Avenue West of 53rd Street. Q. Going on with the statement and quoting again: “…and he said further that the 40th Avenue situation had been produced by City Hall and not by the shopping centre project.” Was that said?
A. The location of 40th Avenue west of 53rd Street was a decision made by City Hall, that is accurate.
Q. Going on with the statement and reading it, it is in the first person: “I made it clear…” that is the Mayor, “I made it clear that this position, that council could deal with 40th Avenue (close it or leave it open) independently of the shopping centre must be made clear to council…” was that said?
A. That is completely inaccurate. The position was that the northwest Market Mall shopping centre development agreements could not go to council until and unless the 40th Avenue question was settled to the satisfaction of the citizens and the mayor.
Q. Going on with the statement, there is a dash after the last part that I quoted, and then it says, “—that the developers must make it clear that 40th Avenue did not matter to them…” was that said?
A. I am sorry, give me that again?
Q. “—that the developers must make it clear that 40th Avenue did not matter to them…”?
A. No, sir, no.
Q. You say no?
A. That is not accurate.
Q. Was that said?
A. It was not said because obviously 40th Avenue did matter to them. It was just not said.
It is thus clear that if the respondent’s version of the October 22nd meeting is to be believed as it has been throughout, no commitment, assurance, or undertaking was made or given on behalf of the Baxter interests at that time to the effect that Council could deal with 40th Avenue independently of the shopping centre nor was it agreed that 40th Avenue did not matter to the developers. On the contrary, as I have indicated, Mr. Waisman gave an immediate and nega- tive answer to the suggestion of closing 40th Avenue north of the centre as soon as that question was raised, and he did this in the presence of the mayor.
There is no doubt in my mind that the statement which evoked the mayor’s allegations of “breach of faith” and “deception of Council and myself” was the statement made by the respondent when he appeared as the representative and sole spokesman of the Baxter interests at the Council meeting of November 10th concerning the closure of 40th Avenue north of the shopping centre. The respondent’s own account of what was said, which is not questioned, is as follows:
I was called back by the acting Mayor and asked questions specifically, “Would the shopping centre be built if 40th Avenue was closed north of the shopping centre?” To which I replied that I could give no assurance, my instructions were that if 40th Avenue was left open the shopping centre would be built, but that if 40th Avenue was closed north of the shopping centre I could give no assurance that the shopping centre would be built. There was no question at all what was said to me on that occasion.
When he was asked about this presentation to the City Council meeting, Mr. Hamilton, the commissioner of operations and development for the city gave the following evidence:
Q. Now, was anything that you heard said by Mr. Fraser which was not in accordance with the facts as you understood them?
A. Mr. Fraser said nothing at variance with what I heard in the conversation that we have referred to earlier in the Mayor’s office.
This is a reference to the meeting of October 22nd at which the mayor presided and it was said concerning the representations made on behalf of the developers before the City Council. Accepting as I do the respondent’s version of the meeting of October 22nd, and Mr. Hamilton’s version of what the respondent said on November 10th, I am satisfied that the mayor was fully aware, more than two weeks before the City Council meeting, that the attitude of the developers was that which was later stated to the City Council by the respondent. This being the case, there was no breach of faith by either the developers or the respondent and no deception was practised on either the Council or the mayor.
Furthermore, it is clear to me from my understanding of the answers given by the appellant’s own counsel at the rehearing that whatever else Mr. Baxter may have said to the mayor, he at no time made any commitment with respect to the closing of 40th Avenue.
As is pointed out in the judgment of the learned trial judge[2] and of the Court of Appeal of Alberta[3] there are two questions to be determined at the outset. The first is a question of law as to whether the statement complained of can, having regard to its language, be regarded as capable of referring to the respondent. The second question is, does the article in fact lead reasonable people who know the respondent to the conclusion that it does refer to him? This is a question of fact.
A very full review of the relevant authorities has been made in the Courts below and I agree, for the reasons stated in both Courts, that the words used in the mayor’s statement are to be read in light of the circumstances giving rise to their use, and that when so viewed they are clearly capable of referring to the appellant and that they did in fact refer to him. I think also that the mayor’s statement of November 12th met the test referred to by Lord Selborne in Capital and Counties Bank Ltd. v. Henty & Sons[4], where he said:
The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense. I agree with the analysis of fact and law summarized by Mr. Justice Clement speaking on behalf of the Court of Appeal at p. 173 where he said:
It could hardly be seriously urged that Sykes is not responsible for the publication of his statements in the news media. All those attending the Council meeting of 10th November, both members of the public, aldermen, City officials and reporters, would have little difficulty in concluding that Fraser was pointed to. Others would undoubtedly have in their minds the newspaper report of 11th November which specifically named Fraser: it was this report that caused Sykes himself to act as he did. Those who attended the two press conferences summoned by Sykes could have no doubt that he was implicating Fraser. In the light of the surrounding circumstances, the words complained of were capable of being understood by a reasonable man as pointing to Fraser, and I am of opinion that the learned trial Judge was correct in finding as a fact that they did so.
The remaining defences may be disposed of more summarily. I am of opinion that the learned trial Judge was right in holding that the words complained of conveyed a defamatory meaning of and concerning the plaintiff, and I am further of opinion that in the context in which they were used that meaning is derived from their natural and ordinary meaning as they would be conveyed to an ordinary reasonable man without special knowledge or extension by innuendo.
As to the defence of justification (i.e., that the matters complained of by Fraser were true) insofar as it was pleaded, the learned trial Judge found as a fact that there was no truth to any of these assertions and there was ample evidence on which to base that finding. This finding also disposes of the defence of fair comment, since that defence can stand only upon the foundation of a true statement of the facts upon which the comment is made: Manitoba Free Press v. Martin (1892), 21 S.C.R. 518 at 528.
I am also in agreement with Mr. Justice Clement, for the reasons which he has stated, that the defence of qualified privilege cannot be claimed for the occasions upon which the appellant made his publications. The finding that there was no truth in any of the assertions made by the appellant is a finding of fact which has been forcefully asserted by both Courts below and I am not prepared in this case to depart from the long established general practice of this Court not to interfere with concurrent findings of fact of two courts below. Here there is ample evidence to support the findings and it has not been shown that there was any misinterpretation of the facts of error in principle.
The presentation of argument in this appeal was initially concluded on February 1, 1972, but by direction of the Chief Justice the appeal was reheard before the full Court in December 1972, for the purpose of including argument on the following questions, namely:
Whether one member of an associated group of three persons may succeed in a libel action where
(1) the group is collectively castigated in a public statement;
(2) the castigation is not actionable by the other two;
(3) he is not singled out for particular mention in the statement;
(4) the castigation is made because of a commitment on a public matter by his associates made to the publisher of the statement, but which he, as their spokesman, denies or from which he recedes; and
(5) he is unaware at that time of the commitment made by his associates.
I think it desirable to consider the five aspects of this question separately.
As to the first two items, I am satisfied that the group was collectively castigated by the appellant’s statement, but having regard to the views which I have expressed, I am by no means satisfied that the castigation would not have been actionable by the other two members of the group, and in any event I do not think it would have been desirable to make a final disposition of this question in these proceedings. As to the third item, I am content to abide by the findings of the Courts below that when the words used in the appellant’s statement are read in light of the circumstances giving rise to their use, they are clearly capable of referring to the respondent and do in fact refer to him, and I am reinforced in this opinion by the paragraph of the appellant’s statement in which he said:
Mr. Baxter stated that Mr. Fraser had been authorized to accept ratification of the agreement conditional on closing 40th Avenue. I do not believe that Council understood that this was the position when it voted on Monday night.
In the context of the mayor’s statement, this is an obvious reference to something said by Baxter after the meeting of November 10th at a time when he and the mayor and the readers of the local newspapers were all aware of the fact that Fraser had acted contrary to this authorization, if such authorization was ever given. In my view the paragraph in question, read together with that which preceded it, carries the clear meaning that “Mr. Fraser” (the respondent) failed to carry out his clients’ instructions and thus misled and deceived the City Council. When this paragraph was read to the respondent he denied categorically that he had ever received such instructions from either Baxter or Waisman and, like both the Courts below, I believe his evidence to have been truthful. I am accordingly unable to subscribe to the proposition contained in the third item to the effect that one member of the group was not singled out for particular mention in the statement.
As to the fourth item, I am, as I have indicated, satisfied that the allegation that a member of the group receded from a commitment made by his associates is directed to the statement made by the respondent at the Council meeting of November 4th that if 40th Avenue was closed north of the shopping centre he could give no assurance that the shopping centre would be built. In view of the fact, which is now apparent, that no commitment was made by any member of the group in relation to the closing of 40th Avenue north of the centre, I am unable to find that the castigation was “made because of a commitment on a public matter by his associates made to the publisher of the statement but, which he, as their spokesman denies or from which he recedes”.
As to the fifth item, I am of opinion that whether Fraser was acting as solicitor, spokesman or real estate agent for the Baxter interests, and whether or not the alleged commitment had been made, his lack of knowledge of such commitment would divorce him from his associates so that if, acting in good faith and on his principals’ instructions, he made representations which turned out to be misleading and a breach of faith on the part of his principal, he could not be stigmatized as one who has misled and deceived the body which he was addressing without having any recourse to an action for defamation. I find that the case of Bulletin Co. Ltd. v. Sheppard[5], and particularly the statement quoted from the trial judge in that case at p. 463, affords support for what I have said in this latter regard.
The appellant also