Hill v. Church of Scientology of Toronto

Hill v. Church of Scientology of Toronto
Collection
Supreme Court Judgments
Date
1995-07-20
Report
[1995] 2 SCR 1130
Case number
24216
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Constitutional law
Torts
Notes
SCC Case Information: 24216
Decision Content
Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130
Morris Manning and
the Church of Scientology of Toronto Appellants
v.
S. Casey Hill Respondent
and
The Attorney General for Ontario, the Canadian
Civil Liberties Association, the Writers' Union
of Canada, PEN Canada, the Canadian Association
of Journalists, the Periodical Writers Association
of Canada, the Book and Periodical Council,
the Canadian Daily Newspaper Association, the Canadian
Community Newspapers Association, the Canadian
Association of Broadcasters, the Radio‑Television
News Directors Association of Canada, the Canadian
Book Publishers' Council and the Canadian Magazine
Publishers' Association Interveners
Indexed as: Hill v. Church of Scientology of Toronto
File No.: 24216.
1995: February 20; 1995: July 20.
Present: La Forest, L'Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Application ‑‑ Libel and slander ‑‑ Church of Scientology commencing criminal contempt proceedings against Crown attorney ‑‑ Church's counsel and representatives holding press conference on courthouse steps ‑‑ Counsel reading from and commenting on allegations in contempt motion ‑‑ Contempt allegations subsequently found to be untrue ‑‑ Crown attorney bringing action for damages in libel ‑‑ Whether Crown attorney's action for damages "government action" ‑‑ Whether Charter applies ‑‑ Canadian Charter of Rights and Freedoms, s. 32(1) .
Libel and slander ‑‑ Common law of defamation ‑‑ Canadian Charter of Rights and Freedoms ‑‑ Whether common law of defamation complies with values underlying Charter ‑‑ Whether "actual malice" rule should be adopted.
Libel and slander ‑‑ Defences ‑‑ Qualified privilege ‑‑ Church of Scientology commencing criminal contempt proceedings against Crown attorney ‑‑ Church's counsel and representatives holding press conference on courthouse steps ‑‑ Counsel reading from and commenting on allegations in contempt motion ‑‑ Contempt allegations subsequently found to be untrue ‑‑ Crown attorney bringing action for damages in libel ‑‑ Whether defence of qualified privilege available.
Libel and slander ‑‑ Damages ‑‑ General damages ‑‑ Aggravated damages ‑‑ Punitive damages ‑‑ Church of Scientology commencing criminal contempt proceedings against Crown attorney ‑‑ Church's counsel and representatives holding press conference on courthouse steps ‑‑ Counsel reading from and commenting on allegations in contempt motion ‑‑ Contempt allegations subsequently found to be untrue ‑‑ Crown attorney bringing action for damages in libel ‑‑ Counsel and Church found jointly liable for general damages ‑‑ Church found liable for aggravated and punitive damages ‑‑ Whether cap should be imposed on general damages in defamation cases ‑‑ Whether damage awards should stand.
The appellant M, accompanied by representatives of the appellant Church of Scientology, held a press conference on the courthouse steps. M, who was wearing his barrister's gown, read from and commented upon allegations contained in a notice of motion by which Scientology intended to commence criminal contempt proceedings against the respondent, a Crown attorney. The notice of motion alleged that the respondent had misled a judge and had breached orders sealing certain documents belonging to Scientology. The remedy sought was the imposition of a fine or his imprisonment. At the contempt proceedings, the allegations against the respondent were found to be untrue and without foundation. He thereupon commenced an action for damages in libel against the appellants. Both appellants were found jointly liable for general damages in the amount of $300,000 and Scientology alone was found liable for aggravated damages of $500,000 and punitive damages of $800,000. This judgment was affirmed by the Court of Appeal. The major issues raised in this appeal are whether the common law of defamation is consistent with the Canadian Charter of Rights and Freedoms and whether the jury's award of damages can stand.
Held: The appeal should be dismissed.
Per La Forest, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The respondent's action for damages does not constitute government action within the meaning of s. 32 of the Charter . The fact that persons are employed by the government does not mean that their reputation is automatically divided into two parts, one related to their personal life and the other to their employment status. Reputation is an integral and fundamentally important aspect of every individual; it exists for everyone quite apart from employment. The appellants impugned the character, competence and integrity of the respondent himself, and not that of the government. He, in turn, responded by instituting legal proceedings in his own capacity. There was no evidence that the Ministry of the Attorney General or the Government of Ontario required or even requested him to do so. Neither is there any indication that the Ministry controlled the conduct of the litigation in any way. The fact that the respondent's suit may have been funded by the Ministry does not alter his constitutional status or cloak his personal action in the mantle of government action. Further, even if there were sufficient government action to bring this case within s. 32 , the appellants failed to provide any evidentiary basis upon which to adjudicate their constitutional attack.
The common law must be interpreted in a manner which is consistent with Charter principles. This obligation is simply a manifestation of the inherent jurisdiction of the courts to modify or extend the common law in order to comply with prevailing social conditions and values. In its application to the parties in this action, the common law of defamation complies with the underlying values of the Charter and there is no need to amend or alter it. The common law strikes an appropriate balance between the twin values of reputation and freedom of expression. The protection of reputation is of vital importance, and consideration must be given to the particular significance reputation has for a lawyer. Although it is not specifically mentioned in the Charter , the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights. Further, reputation is intimately related to the right to privacy, which has been accorded constitutional protection. The "actual malice" rule should not be adopted in Canada in an action between private litigants. The law of defamation is not unduly restrictive or inhibiting. Freedom of speech, like any other freedom, is subject to the law and must be balanced against the essential need of individuals to protect their reputation.
Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. The privilege is not absolute, however, and can be defeated if the dominant motive for publishing the statement is actual or express malice. Malice is commonly understood, in the popular sense, as spite or ill‑will. However, it also includes any indirect motive or ulterior purpose that conflicts with the sense of duty or the mutual interest which the occasion created. Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. Qualified privilege may also be defeated when the limits of the duty or interest have been exceeded. The fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. The information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when that information was given.
The traditional common law rule with respect to reports on documents relating to judicial proceedings is that, where there are judicial proceedings before a properly constituted judicial tribunal exercising its jurisdiction in open court, then the publication without malice of a fair and accurate report of what takes place before that tribunal is privileged. However, the common law immunity was not extended to a report on pleadings or other documents which had not been filed with the court or referred to in open court. Prior to holding the press conference M had every intention of initiating the contempt action in accordance with the prevailing rules, and had given instructions to this effect. The fact that the proper documents were not filed until the next morning should not defeat the qualified privilege which attached to this occasion. M's conduct, however, far exceeded the legitimate purposes of the occasion. The circumstances of this case called for great restraint in the communication of information concerning the proceedings launched against the respondent. As an experienced lawyer, M ought to have taken steps to confirm the allegations that were being made. This is particularly true since he should have been aware of the Scientology investigation pertaining to access to the sealed documents. In those circumstances he was duty bound to wait until the investigation was completed before launching such a serious attack on the respondent's professional integrity. M failed to take either of these reasonable steps. As a result of this failure, the permissible scope of his comments was limited and the qualified privilege which attached to his remarks was defeated. The press conference was held on the courthouse steps in the presence of representatives from several media organizations. This constituted the widest possible dissemination of grievous allegations of professional misconduct that were yet to be tested in a court of law. His comments were made in language that portrayed the respondent in the worst possible light. This was neither necessary nor appropriate in the existing circumstances. While it is not necessary to characterize M's conduct as amounting to actual malice, it was certainly high‑handed and careless and exceeded any legitimate purpose the press conference may have served. His conduct therefore defeated the qualified privilege that attached to the occasion.
When properly instructed, jurors are uniquely qualified to assess the damages suffered by the plaintiff. An appellate court is not entitled to substitute its own judgment as to the proper award for that of the jury merely because it would have arrived at a different figure. General damages in defamation cases are presumed from the very publication of the false statement and are awarded at large. It is members of the community in which the defamed person lives who will be best able to assess the damages. The jury as representative of that community should be free to make an assessment of damages which will provide the plaintiff with a sum of money that clearly demonstrates to the community the vindication of the plaintiff's reputation. No cap should be placed on general damages for defamation. First, the injury suffered by a plaintiff as a result of injurious false statements is entirely different from the non‑pecuniary damages suffered by a plaintiff in a personal injury case. Second, at the time the cap was placed on non‑pecuniary damages in personal injury cases, their assessment had become a very real problem for the courts and for society as a whole, which is not the case with libel actions. The award of $300,000 by way of general damages was justified in this case. Both appellants published the notice of motion. All persons who are involved in the commission of a joint tort are jointly and severally liable for the damages caused by that tort, and it would thus be wrong in law to have a jury attempt to apportion liability for general damages between the joint tortfeasors. The reports in the press were widely circulated and the television broadcast had a wide coverage. The setting and the persons involved gave the coverage an aura of credibility and significance that must have influenced all who saw and read the accounts. The misconduct of the appellants continued after the first publication. Prior to the commencement of the hearing of the contempt motion, Scientology was aware that the allegations it was making against the respondent were false, yet it persisted with the contempt hearings, as did M. At the conclusion of the hearings, both appellants were aware of the falsity of the allegations. Nonetheless, when the libel action was instituted, the defence of justification was put forward by both of them. Although M withdrew the plea of justification, this was only done in the week prior to the commencement of the trial itself, and Scientology did not withdraw its plea until the hearing of the appeal. Finally, the manner in which the respondent was cross‑examined by the appellants, coupled with the manner in which they presented their position to the jury, in light of their knowledge of the falsity of their allegations, are further aggravating factors to be taken into account.
Aggravated damages may be awarded in circumstances where the defendant's conduct has been particularly high‑handed or oppressive, thereby increasing the plaintiff's humiliation and anxiety arising from the libellous statement. If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff. The factors that a jury may properly take into account in assessing aggravated damages include whether there was a withdrawal of the libellous statement made by the defendant and an apology tendered, whether there was a repetition of the libel, conduct that was calculated to deter the plaintiff from proceeding with the libel action, a prolonged and hostile cross‑examination of the plaintiff or a plea of justification which the defendant knew was bound to fail. The general manner in which the defendant presented its case is also relevant. Further, it is appropriate for a jury to consider the conduct of the defendant at the time the libel was published. In this case, there was ample evidence upon which the jury could properly base their finding of aggravated damages. Every aspect of this case demonstrates the very real and persistent malice of Scientology.
Punitive damages may be awarded in situations where the defendant's misconduct is so malicious, oppressive and high‑handed that it offends the court's sense of decency. They should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence. Unlike compensatory damages, punitive damages are not at large, and consequently courts have a much greater scope and discretion on appeal. The appellate review should be based upon the court's estimation as to whether the punitive damages serve a rational purpose, as they did in this case. Further, the circumstances presented in this exceptional case demonstrate that there was such insidious, pernicious and persistent malice that the award for punitive damages cannot be said to be excessive.
Per L'Heureux‑Dubé J.: Cory J.'s reasons were generally agreed with, except with respect to the scope of the defence of qualified privilege. The common law of defamation, as it is applied to the parties in this action, is consistent with the values enshrined in the Charter . There is accordingly no need to amend or alter it or, in particular, to adopt the "actual malice" rule. The defence of qualified privilege, however, is not available with respect to reports of pleadings in purely private litigation upon which no judicial action has yet been taken. The defence is available only with respect to reports of judicial proceedings. While there is a right to publish details of judicial proceedings before they are heard in open court, such publication does not enjoy the protection of qualified privilege if it is defamatory.
Cases Cited
By Cory J.
Not followed: New York Times Co. v. Sullivan, 376 U.S. 254 (1964); referred to: Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Nelles v. Ontario, [1989] 2 S.C.R. 170; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; MacKay v. Manitoba, [1989] 2 S.C.R. 357; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Salituro, [1991] 3 S.C.R. 654; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Re British Columbia Government Employees' Union, [1983] 6 W.W.R. 640; R. v. Oakes, [1986] 1 S.C.R. 103; Sweeney v. Patterson, 128 F.2d 457 (1942), cert. denied 317 U.S. 678 (1942); Reference re Alberta Statutes, [1938] S.C.R. 100; Switzman v. Elbling, [1957] S.C.R. 285; Boucher v. The King, [1951] S.C.R. 265; Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Butler, [1992] 1 S.C.R. 452; Globe and Mail Ltd. v. Boland, [1960] S.C.R. 203; Derrickson v. Tomat (1992), 88 D.L.R. (4th) 401; De Libellis Famosis (1605), 5 Co. Rep. 125a, 77 E.R. 250; King v. Lake (1679), Hardres 470, 145 E.R. 552; Rosenblatt v. Baer, 383 U.S. 75 (1966); Vogel v. Canadian Broadcasting Corp., [1982] 3 W.W.R. 97; R. v. Dyment, [1988] 2 S.C.R. 417; Barr v. Matteo, 360 U.S. 564 (1959); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985); Coughlin v. Westinghouse Broadcasting & Cable, Inc., 476 U.S. 1187 (1986); Derbyshire County Council v. Times Newspapers Ltd., [1993] 1 All E.R. 1011; Theophanous v. Herald & Weekly Times Ltd. (1994), 124 A.L.R. 1; Silkin v. Beaverbrook Newspapers Ltd., [1958] 1 W.L.R. 743; Adam v. Ward, [1917] A.C. 309; McLoughlin v. Kutasy, [1979] 2 S.C.R. 311; Horrocks v. Lowe, [1975] A.C. 135; Taylor v. Despard, [1956] O.R. 963; Netupsky v. Craig, [1973] S.C.R. 55; Douglas v. Tucker, [1952] 1 S.C.R. 275; Sun Life Assurance Co. of Canada v. Dalrymple, [1965] S.C.R. 302; Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339; Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; Walker v. CFTO Ltd. (1987), 59 O.R. (2d) 104; Rantzen v. Mirror Group Newspapers (1986) Ltd., [1993] 4 All E.R. 975; Ley v. Hamilton (1935), 153 L.T. 384; Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Arnold v. Teno, [1978] 2 S.C.R. 287; Thornton v. Board of School Trustees of School District No. 57 (Prince George), [1978] 2 S.C.R. 267; Jill Fishing Ltd. v. Koranda Management Inc., [1993] B.C.J. No. 1861 (QL); Cassell & Co. v. Broome, [1972] 1 All E.R. 801; Blackshaw v. Lord, [1983] 2 All E.R. 311; Sutcliffe v. Pressdram Ltd., [1990] 1 All E.R. 269; Carson v. John Fairfax & Sons Ltd. (1993), 113 A.L.R. 577; Lawson v. Burns, [1976] 6 W.W.R. 362; Kerr v. Conlogue (1992), 65 B.C.L.R. (2d) 70; Egger v. Chelmsford, [1965] 1 Q.B. 248.
By L'Heureux‑Dubé J.
Not followed: New York Times Co. v. Sullivan, 376 U.S. 254 (1964); referred to: RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. Salituro, [1991] 3 S.C.R. 654; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Park, [1995] 2 S.C.R. 836; Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326.
Statutes and Regulations Cited
Act to amend the Courts of Justice Act, 1984, S.O. 1989, c. 67, s. 4.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 32(1) .
Constitution Act, 1982, s. 52 .
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137(1).
Crown Attorneys Act, R.S.O. 1990, c. C.49.
Criminal Code, R.S.C., 1985, c. C‑46, ss. 490(15) , 504 .
Libel and Slander Act, R.S.O. 1990, c. L.12.
Marriage Act, R.S.O. 1980, c. 256, s. 20(2).
Ministry of the Attorney General Act, R.S.O. 1990, c. M.17.
Authors Cited
Australia. Law Reform Commission. Report No. 11. Unfair Publication: Defamation and Privacy. Canberra: Australian Government Publishing Service, 1979.
Barrett, David A. "Declaratory Judgments for Libel: A Better Alternative" (1986), 74 Cal. L. Rev. 847.
Barron, Jerome A. "Access to the Press ‑‑ A New First Amendment Right" (1966‑67), 80 Harv. L. Rev. 1641.
Bezanson, Randall P. "Libel Law and the Realities of Litigation: Setting the Record Straight" (1985), 71 Iowa L. Rev. 226.
Bollinger, Lee C. "The End of New York Times v Sullivan: Reflections on Masson v New Yorker Magazine", [1991] Sup. Ct. Rev. 1.
Brown, Raymond E. The Law of Defamation in Canada, 2nd ed. Scarborough, Ont.: Carswell, 1994 (loose‑leaf).
Canadian Daily Newspaper Association. Response to A Consultation Draft of the General Limitations Act (September 1991).
Carter‑Ruck on Libel and Slander, 4th ed. By Peter F. Carter‑Ruck, Richard Walker and Harvey N. A. Starte. London: Butterworths, 1992.
Christie, George C. "Injury to Reputation and the Constitution: Confusion Amid Conflicting Approaches" (1976), 75 Mich. L. Rev. 43.
Epstein, Richard A. "Was New York Times v. Sullivan Wrong?" (1986), 53 U. Chi. L. Rev. 782.
Gatley on Libel and Slander, 8th ed. By Philip Lewis. London: Sweet & Maxwell, 1981.
Gatley on Libel and Slander in a Civil Action: With Precedents of Pleadings, 4th ed. By Richard O'Sullivan. London: Sweet & Maxwell, 1953.
Hawreluk, David. "The Lawyer's Duty to Himself and the Code of Professional Conduct" (1993), 27 L. Soc. Gaz. 119.
Ireland. Law Reform Commission. Report on the Civil Law of Defamation. Dublin: Law Reform Commission, 1991.
Lepofsky, M. David. "Making Sense of the Libel Chill Debate: Do Libel Laws `Chill' the Exercise of Freedom of Expression?" (1994), 4 N.J.C.L. 169.
Leval, Pierre N. "The No‑Money, No‑Fault Libel Suit: Keeping Sullivan in its Proper Place" (1988), 101 Harv. L. Rev. 1287.
Lewis, Anthony. "New York Times v. Sullivan Reconsidered: Time to Return to `The Central Meaning of the First Amendment'" (1983), 83 Colum. L. Rev. 603.
London, Martin. "The `Muzzled Media': Constitutional Crisis or Product Liability Scam?". In At What Price? Libel Law and Freedom of the Press. New York: Twentieth Century Fund, 1993.
McLellan, A. Anne, and Bruce P. Elman. "To Whom Does the Charter Apply? Some Recent Cases on Section 32 " (1986), 24 Alta. L. Rev. 361.
Salmond and Heuston on the Law of Torts, 20th ed. By R. F. V. Heuston and R. A. Buckley. London: Sweet & Maxwell, 1992.
United Kingdom. Report of the Committee on Defamation. London: H.M.S.O., 1975.
Veeder, Van Vechten. "The History and Theory of the Law of Defamation" (1903), 3 Colum. L. Rev. 546.
Waddams, S. M. The Law of Damages, 2nd ed. Toronto: Canada Law Book, 1991 (loose‑leaf).
APPEAL from a judgment of the Ontario Court of Appeal (1994), 18 O.R. (3d) 385, 114 D.L.R. (4th) 1, 71 O.A.C. 161, 20 C.C.L.T. (2d) 129, affirming a judgment of the Ontario Court of Justice (General Division) awarding the respondent damages for libel against the appellants. Appeal dismissed.
Bryan Finlay, Q.C., and Christopher J. Tzekas, for the appellant Morris Manning.
Marc J. Somerville, Q.C., and R. Ross Wells, for the appellant the Church of Scientology of Toronto.
Robert P. Armstrong, Q.C., and Kent E. Thomson, for the respondent.
Lori Sterling and Hart Schwartz, for the intervener the Attorney General for Ontario.
Robert J. Sharpe and Kent Roach, for the intervener the Canadian Civil Liberties Association.
Edward M. Morgan, for the interveners the Writers' Union of Canada, PEN Canada, the Canadian Association of Journalists, the Periodical Writers Association of Canada, and the Book and Periodical Council.
Peter W. Hogg, Q.C., and Brian MacLeod Rogers, for the interveners the Canadian Daily Newspaper Association, the Canadian Community Newspapers Association, the Canadian Association of Broadcasters, the Radio‑Television News Directors Association of Canada, the Canadian Book Publishers' Council and the Canadian Magazine Publishers' Association.
The judgment of La Forest, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
1 Cory J. -- On September 17, 1984, the appellant Morris Manning, accompanied by representatives of the appellant Church of Scientology of Toronto ("Scientology"), held a press conference on the steps of Osgoode Hall in Toronto. Manning, who was wearing his barrister's gown, read from and commented upon allegations contained in a notice of motion by which Scientology intended to commence criminal contempt proceedings against the respondent Casey Hill, a Crown attorney. The notice of motion alleged that Casey Hill had misled a judge of the Supreme Court of Ontario and had breached orders sealing certain documents belonging to Scientology. The remedy sought was the imposition of a fine or the imprisonment of Casey Hill.
2 At the contempt proceedings, the allegations against Casey Hill were found to be untrue and without foundation. Casey Hill thereupon commenced this action for damages in libel against both Morris Manning and Scientology. On October 3, 1991, following a trial before Carruthers J. and a jury, Morris Manning and Scientology were found jointly liable for general damages in the amount of $300,000 and Scientology alone was found liable for aggravated damages of $500,000 and punitive damages of $800,000. Their appeal from this judgment was dismissed by a unanimous Court of Appeal: (1994), 18 O.R. (3d) 385, 114 D.L.R. (4th) 1, 71 O.A.C. 161, 20 C.C.L.T. (2d) 129.
I. Factual Background
3 As in all actions for libel, the factual background is extremely important and must be set out in some detail. At the time the defamatory statements were made, Casey Hill was employed as counsel with the Crown Law Office, Criminal Division of the Ministry of the Attorney General for the Province of Ontario. He had given advice to the Ontario Provincial Police ("OPP") regarding a warrant obtained on March 1, 1983 which authorized a search of the premises occupied by Scientology. During the execution of the search warrant on March 3 and 4, 1983, approximately 250,000 documents, comprising over 2 million pages of material, were seized. These documents were stored in some 900 boxes at an OPP building in Toronto.
4 Immediately following the seizure, Scientology retained Clayton Ruby to bring a motion to quash the search warrant and to seek the return of the seized documents. Casey Hill, who had gained experience and special skill in the area of search and seizure, acted as counsel for the Crown.
5 The litigation commenced on March 7, 1983 and continued throughout 1983 and 1984. On July 11, 1984, Osler J. ruled that solicitor‑and‑client privilege applied to 232 of the seized documents he had reviewed and ordered that they remain sealed pending further order of the court. Several sealing orders and endorsements were ultimately made by Justices of the Supreme Court of Ontario.
6 Throughout this period, Casey Hill dealt frequently with Clayton Ruby and other counsel for Scientology in connection with various matters ranging from the trivial to the significant. They were invariably resolved in a spirit of co‑operation and professional courtesy, even in those situations where the parties proceeded with contested motions.
7 In March of 1983, Scientology retained Charles Campbell to make an application to Rosemarie Drapkin, the Deputy Registrar General of the Ministry of Consumer and Commercial Relations, requesting that its president, Earl Smith, be granted the authorization to solemnize marriages pursuant to s. 20(2) of the Marriage Act, R.S.O. 1980, c. 256. One year later, Scientology commenced an application for judicial review of Rosemarie Drapkin's failure to approve that application.
8 Rosemarie Drapkin believed that it would help her to assess the application if she could review the seized documents. To that end, Kim Twohig, a solicitor in the Civil Division of the Crown Law Office, approached Casey Hill in July 1984. He advised her that there was a motion outstanding before Osler J. for an order quashing the search warrant and that access would only be granted if a court order was obtained pursuant to s. 490(15) (formerly 446(15)) of the Criminal Code, R.S.C., 1985, c. C‑46 . He explained that there had been several interim rulings in this matter and stated that "this was probably the type of case where the judge hearing such an application would want notice given to Scientology".
9 During the last week of July 1984, Casey Hill travelled to Nassau to meet with the Attorney General of the Bahamas in respect of an ongoing criminal investigation. In the course of a telephone conversation, Kim Twohig conveyed to Casey Hill the urgent need she had to gain access to the documents as a date had been fixed to hear Scientology's application for judicial review. Casey Hill testified that he told Kim Twohig that her Criminal Code application would have to be served on the Crown Law Office, Criminal Division in the usual fashion to obtain its consent.
10 Kim Twohig prepared the necessary materials, including the notice of motion and an affidavit of Rosemarie Drapkin, and obtained the requisite consent from James Blacklock of the Crown Law Office, Criminal Division. The application was then filed in Weekly Court on July 30, 1984 with the assistance of Jerome Cooper, a solicitor with the Ministry of Consumer and Commercial Relations. No notice was given to Scientology. The following day, a consent order granting access to all of the seized documents was issued by Sirois J. in chambers without submissions from counsel.
11 In her testimony at the trial of this action, Kim Twohig agreed that she alone made the decision not to provide notice to Scientology of her application. She testified that she assumed that the presiding judge would determine whether notice was necessary or appropriate. It was only later that she realized that the order of Sirois J. might provide access to sealed documents.
12 By letter dated August 22, 1984, Rosemarie Drapkin wrote to Charles Campbell concerning Scientology's application and advised that she had "reviewed certain documents relating to the Scientology organization which were seized pursuant to the search warrant" issued on March 1, 1983. Attached to the letter was a list of 89 documents, some of which had purportedly been sealed by order of Osler J. It was this information which raised the concern of Scientology and its legal advisers.
13 In response, Clayton Ruby wrote a somewhat precipitous and very aggressive letter to the Solicitor General of Ontario dated August 28, 1984. In it he accused the OPP of acting "as if there were no rule of law" and of "simply ignoring solicitor/client privilege and making a mockery of the courts". He called for a "full investigation" and demanded disciplinary action be taken "against everyone involved". Clayton Ruby was not aware of the order of Sirois J. at that time. He simply assumed that those involved had acted improperly.
14 As early as September 5, 1984, Clayton Ruby, along with other counsel and representatives of Scientology, decided that what had occurred was "disgraceful and shocking" and constituted contempt. They arrived at this conclusion without having taken any steps to ensure the accuracy of their impressions.
15 In a letter addressed to Casey Hill dated September 6, 1984, Clayton Ruby asked for Casey Hill's assistance in obtaining information regarding the circumstances under which the order of Sirois J. had been granted and why Scientology had not received notice of the application. He requested a response within five days. It should be noted that at the time this letter was written, Clayton Ruby was a Bencher of the Law Society and Vice‑Chairman of the Law Society's Discipline Committee.
16 The letter implied that there could be disciplinary proceedings brought before the Law Society of Upper Canada and that a contempt action might be instituted. Not surprisingly, it was given serious consideration by Casey Hill and others at the Ministry of the Attorney General. Hill sought the advice of his Director, Howard Morton. Morton wrote a letter to Ruby stating that in light of the serious nature of the allegations, he would not be able to reply within the five‑day period imposed by Ruby.
17 On September 6 and 7, 1984, Michael Code (then an associate of Clayton Ruby) telephoned Casey Hill, Jerome Cooper and Kim Twohig to find out how access to the privileged documents had been obtained. They all conveyed a similar version of the past events and assured him that the sealed documents were not opened but rather that unsealed copies must have been examined. Code conceded in cross‑examination that everyone he spoke to was cooperative.
18 On September 11, 1984, however, without making any further inquiries and without awaiting the reply from Casey Hill and Howard Morton, Ruby retained the appellant Morris Manning to advise Scientology in respect of possible contempt proceedings. On September 13, 1984, representatives of Scientology met with Morris Manning, Charles Campbell, Clayton Ruby, Michael Code and an articling student at Ruby's office. A decision was made to commence an application for criminal contempt against both Casey Hill and Jerome Cooper. Morris Manning testified that a critical piece of information which prompted him to bring the contempt application was the characterization by Michael Code of Casey Hill's attitude during their conversation. Casey Hill had allegedly said that if the Church missed sealing all copies of the privileged documents it was "too bad". In Morris Manning's opinion, this demonstrated a contemptuous attitude towards the court. He reached this conclusion without ever speaking to Casey Hill or any of the others involved in the incident such as Rosemarie Drapkin, Kim Twohig, James Blacklock, Jerome Cooper or Detective Inspector Ormsby, the senior officer of the OPP responsible for the investigation of Scientology. Nor had Morris Manning interviewed those representatives of Scientology who were directly involved in the sealing of the documents.
19 The evidence adduced at the contempt hearing clearly established that Casey Hill played no part in the application before Sirois J. and had nothing to do with the execution or filing of the consent on behalf of the Attorney General for Ontario. In fact, he was only informed of any difficulties associated with the order of Osler J. in late August 1984, when he received a telephone call from Detective Inspector Ormsby. At that time, Ormsby advised him that Rosemarie Drapkin had attended at the OPP building in which the seized documents were held with the order of Sirois J., but that she was denied access to the sealed documents. The sealed documents were never opened. What Rosemarie Drapkin may have seen were unsealed copies of the sealed documents that were probably located in different boxes than the sealed originals.
20 Between September 13 and 17, 1984, Morris Manning prepared a notice of motion for the contempt application returnable in Weekly Court some time in early January 1985. During this time, he did not make any attempt to determine what was being done with the seized documents or to ascertain whether any continuing breach of privilege was occurring.
(A) The "Enemy Canada" File
21 Long before he gave advice to the OPP in connection with the search and seizure of documents which took place on March 3 and 4, 1983, Casey Hill had become a target of Scientology's enmity. Over the years, he had been involved in a number of matters concerning Scientology's affairs. As a result, it kept a file on him. This was only discovered when the production of the file was ordered during the course of this action. The file disclosed that from approximately 1977 until at least 1981, Scientology closely monitored and tracked Casey Hill and had labelled him an "Enemy Canada". Casey Hill testified that from his experience, persons viewed by Scientology as its enemies were "subject to being neutralized".
(B) The Press Conference
22 In the file of Charles Campbell there was a note dated September 10 or 11, 1984 which made reference to a press conference to be held the following Monday, September 17, 1984. It appears, then, that before it had even consulted Morris Manning, Scientology intended to call a press conference
23 The press conference was organized by Earl Smith. He contacted a number of media organizations, including CFTO‑TV, CBC television and The Globe and Mail and invited them to the event which was to be held in front of Osgoode Hall. Morris Manning was appearing on that day before the Court of Appeal in an unrelated matter and attended the press conference in his barrister's gown.
24 He testified that he answered a number of questions concerning the contempt proceedings and then, at the request of the media, read a passage from the notice of motion for the television cameras. Copies of the notice of motion were distributed to the media along with a typewritten document, prepared by Scientology, entitled "Chronology of Events Leading to Contempt Motion".
25 The notice of motion in essence alleged that Casey Hill had participated in the misleading of Sirois J. and that he had participated in or aided and abetted others in the opening and inspection of documents which to his knowledge were sealed by Osler J.
26 On the evening of September 17, 1984, the CFTO broadcast was seen by an audience of approximately 132,000 people. The text of the broadcast is set out in Appendix A to these reasons. The CBC broadcast was seen by approximately 118,000 people. The text is found in Appendix B. The following morning, an article appeared in The Globe and Mail entitled "Motion of Contempt Launched by Church". Approximately 108,000 copies of the edition containing this article were distributed. The article is reproduced in Appendix C. All three publications repeated the allegations made in the notice of motion.
(C) The Felske Memorandum
27 Patricia Felske is a Scientologist who had attended at the offices of the OPP on a regular basis since March 1983 for the purpose of reviewing the seized materials and ensuring that the privileged documents were sealed. Between August 29, 1984, and September 27, 1984, she, along with other representatives from Scientology, opened the sealed envelopes and verified their contents against photocopies of the documents that Rosemarie Drapkin had examined. Their purpose was to determine whether Ms. Drapkin had been granted access to the restricted materials.
28 On September 17, 1984, the day of the press conference, the Scientology investigation was well advanced and neither then nor later was there any indication that Drapkin gained access to sealed documents. Scientology and Manning nevertheless proceeded with the press conference before any conclusive findings had been made on this issue.
29 On November 2, 1984, Patricia Felske prepared a brief summary of her findings, entitled "Time Track Re: Solicitor and Client Privileged Documents", wh