Kent v. Martin, 2012 ABQB 507

Court of Queen ’ s Bench of Alberta Citation: Kent v. Martin, 2012 ABQB 507 Date: 20120802 Docket: 0801 08414 Registry: Calgary Between: Arthur Kent Plaintiff - and - Don Martin, the National Post Company, Canwest Publishing Inc., the National Post Company, Canwest Publishing Inc., National Post Holdings Ltd., 4514858 Canada Inc., Canwest Media Works Inc., 4514866 Canada Inc., William Lorne Motley and Postmedia Network Inc. Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W. A.

Tilleman _______________________________________________________ Background [ 1 ] This is a defamation case with a number of unique characteristics. It involves a prominent journalist and corporate Defendants with whom he had a prior working relationship and whom he characterizes as Goliaths to his David. It is a case where the impugned publication has occurred both in print and over the internet and is now therefore easily accessible worldwide. It is a case in which the defence of justification will have to be considered in the context of that worldwide accessibility.

It is a case that will require the Court to consider whether an

article that is available after an internet search is pro tanto (because of the searchability) “published”. It is a case in which it is argued that the defence of qualified privilege if it existed, may effectively expire with the passage of time.

[2] More specifically, the Plaintiff alleges that an

article entitled variously, “Scud Stud Lands With A Thud” first published inthe Calgary Herald and on the Calgary Herald’s website on February 13, 2008 and “‘Scud Stud’ a dud in Alberta election” firstpublished on the National Post website on February 12, 2008 and in the print edition the following day (collectively, “the Article”), isdefamatory.

That matter ultimately is for trial. [3] This decision concerns the availability of an interim injunction that would restrain the Defendants The National PostCompany, Canwest Publishing Inc., National Post Holdings Ltd., Canwest Media Works Inc., and Postmedia Network Inc (“thecorporate media Defendants”) from using some 37 websites that are within their control to “publish” the allegedly defamatory article. Issue [4] Is the Plaintiff media entitled to an interim injunction preventing further publication of the

Article by the Corporate MediaDefendants?

Analysis The Test for an Interim Injunction [5] The test for an interim injunction, known as the Cyanamid or tripartite test, is well established: first, a preliminaryassessment must be made of the merits of the case to ensure that there is a serious question to be tried; secondly, it must be determinedwhether the applicant would suffer irreparable harm if the injunction were refused; third, an assessment must be made as to which of theparties would suffer greater harm from the granting or refusal to grant the injunction, pending a decision on the merits. [6] Where the interim injunction is sought to restrain publication, and the right of free speech is implicated, the test is verydifferent.

In Canada (Human Rights Commission) v. Canadian Liberty Net, (SCC), [1998] 1 S.C.R. 626, BastaracheJ. made it clear at para. 47 that the Cyanamid test does not apply in these circumstances: In my view, the Cyanamid test, even with these slight modifications, is inappropriate to the circumstances presented here. The mainreason for this is that Cyanamid... involved the commercial context in which the criteria of "balance of convenience" and "irreparableharm" had some measurable meaning and which varied from case to case.

Moreover, where expression is unmixed with some othercommercial purpose or activity, it is virtually impossible to use the second and third criteria without grievously undermining the right tofreedom of expression contained in s. 2(

b) of the Charter. The reason for this is that the speaker usually has no tangible or measurableinterest other than the expression itself, whereas the party seeking the injunction will almost always have such an interest. This testdeveloped in the commercial context stacks the cards against the non-commercial speaker where there is no tangible, immediate utilityarising from the expression other than the freedom of expression itself. The inappropriateness of the Cyanamid test is confirmed by the jurisprudence relating to injunctions against allegedly defamatorystatements, in both England and Canada.

In both countries, the Cyanamid test has been rejected for injunctions against dissemination ofdefamatory statements. [7] In Starlight v. Onespot, 1998 ABCA 361, the Alberta Court of Appeal adopted the test set out in Bonnard v.

Perryman[1891] 2 Ch. 269, at p. 284: But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising thejurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong...Until it is clear that an alleged libel isuntrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason incases of libel for dealing most cautiously and warily with the granting of interim injunctions.

... ...It ought to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if thejury did not so find, the Court would set aside the verdict as unreasonable. [8] This is consistent with a long line of cases in which Bonnard was cited as a leading authority. In Canada Metal Co. Ltd. etal. v. Canadian Broadcasting Corp. et al. (1975), (ON SC), 7 O.R. (2d) 261 (Div. Ct.), the Court held, at p. 539: For at least one hundred years and certainly since the leading cases of William Coulson & Sons v. James Coulson & Co. (1887), 3T.L.R. 846, and Collard v.

Marshall, [1802] 1 Ch. 571, and perhaps above all, in the leading case of Bonnard v. Perryman, [1891] 2Ch. 269, it has been universally and consistently held by British and Canadian Courts that such an interim injunction will never begranted where the defendant expresses his intention to justify unless the words in question are so clearly defamatory and so obviouslyimpossible to justify that the verdict of a jury accepting a plea of justification as a defence would of necessity have to be set aside as aperverse finding on appeal. [9] In Rapp et al. v.

McClelland & Stewart Ltd. et al. (1982), (ON SC), 34 O.R. (2d) 452 (H.C.), which wascited with approval by Bastarache J. in Canadian Liberty Net, the test was framed by Griffiths J. as follows, at p. 455: The guiding principle then is, that the injunction should only issue where the words complained of are so manifestly defamatory that anyjury verdict to the contrary would be considered perverse by the Court of Appeal.

To put it another way where it is impossible to say thata reasonable jury must inevitably find the words defamatory the injunction should not issue. [10] The parties are largely in agreement in respect of the authorities that govern the question of whether an interim injunction isavailable to restrain publication. Where they differ is in how the Court should consider the tort of defamation and the available defencesin the context of an application for injunctive relief.

The Plaintiff contends that the test must be considered in the context of the elementsof the strict liability tort of defamation and the requirements of a justification defence, and points to the decision of McLachlan C.J. inGrant v.

Torstar Corp., 2009 SCC 61 , [2009] 3 S.C.R. 640, at paras. 28-37: A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugnedwords were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) thatthe words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least oneperson other than the plaintiff.

If these elements are established on a balance of probabilities, falsity and damage are presumed, thoughthis rule has been subject to strong criticism...The plaintiff is not required to show that the defendant intended to do harm, or even thatthe defendant was careless. The tort is thus one of strict liability. If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability. ...

Where statements of fact are at issue, usually only two defences are available: the defence that the statement was substantially true(justification): and the defence that the statement was made in a protected context (privilege). The issue in this case is whether thedefences to actions for defamatory statements of fact should be expanded, as has been done for statements of opinion, in recognition ofthe importance of freedom of expression in a free society. To succeed on the defence of justification, a defendant must adduce evidence showing that the statement was substantially true. Thismay be difficult to do.

A journalist who has checked sources and is satisfied that a statement is substantially true may nevertheless havedifficulty proving this in court, perhaps years after the event. The practical result of the gap between responsible verification and theability to prove truth in a court of law on some date far in the future, is that the defence of justification is often a little utility to journalistsand those who publish their stories.

If the defence of justification fails, generally the only way a publisher can escape liability for an untrue defamatory statement of fact isby establishing that the statement was made on a privileged occasion. However, the defence of qualified privilege has seldom assistedmedia organizations. One reason is that qualified privilege has traditionally been grounded in special relationships characterized by a“duty” to communicate the information and a reciprocal “interest” in receiving it.

The press communicates information not to identifiedindividuals with whom it has a personal relationship, but to the public at large. Another reason is the conservative stance of earlydecisions, which struck a balance that preferred reputation over freedom of expression. In a series of judgments written by Cartwright J.(as he then was), this Court refused to grant the communications media any special status that might have afforded them greater access tothe privilege: Douglas v. Tucker, (SCC), [1952] 1 S.C.R. 275; Globe and Mail Ltd. v. Boland, (SCC),[1960] S.C.R. 203; Banks v.

Globe and Mail Ltd., (SCC), [1961] S.C.R. 474; Jones v. Bennett, (SCC),[1969] S.C.R. 277. In recent decades courts have begun to moderate the strictures of qualified privilege, albeit in an ad hoc and incremental way. When astrong duty and interest seemed to warrant it, they have on occasion applied the privilege to publications to the world at large.

Forexample, in suits against politicians expressing concerns to the electorate about the conduct of other public figures, courts havesometimes recognized that a politician's “duty to ventilate” matters of concern to the public could give rise to qualified privilege: Parlettv. Robinson (1986), (BC CA), 5 B.C.L.R. (2d) 26 (CA), at p. 39. In the last decade, this recognition has sometimes been extended to media defendants. For example, in Grenier v. Southam Inc., [1997]O.J.

No. 2193 (QL), the Ontario Court or Appeal (in a brief endorsement) upheld a trial judge's finding that the defendant mediacorporation had a “social and moral duty” to publish the

article in question. Other cases have adopted the view that qualified privilege isavailable to media defendants, provided that they can show a social or moral duty to publish the information and a corresponding publicinterest in receiving it: Leenen v. Canadian Broadcasting Corp. (2000), (ON SC), 48 O.R. (3d) 656 (S.C.J.), at p. 695, aff’d (2001), 54 O.R. (3d) 612 (C.A.), and Young v. Toronto Star Newspapers Ltd. (2003), (ON SC), 66O.R. (3d) 170 (S.C.J.), aff'd (2005), (ON CA), 77 O.R. (3d) 680 (C.A.).

Despite these tentative forays, the threshold for privilege remains high and the criteria for reciprocal duty and interest required toestablish it unclear. It remains uncertain when, if ever, a media outlet can avail itself of the defence of qualified privilege. [11] It is important to recognize that while in the foregoing paras.

McLachlin C.J. stressed the strict liability nature of the tort ofdefamation, Grant is actually a case in which the scope of the defences available to a claim of defamation was expanded, with therecognition of a new defence of responsible communication on matters of public interest. [12] The Plaintiff contends that, in the context of an application for an interim injunction, the only questions for the court are (a)whether the statement was defamatory; and (

b) whether the statement could be justified. In the Plaintiff’s submission, any other defencesthat might be available to the Defendants are not to be considered at this stage. This position, or one very like it, was rejected by Myers J.in S.I.U. v. I.L.W.U., Local 400, 2009 BCSC 1269. In that case it was argued, on the basis of Pilot Insurance Co. v. Jessome, [1993]O.J. No. 172 (Gen.Div.), that a different standard would apply to defences other than justification.

After noting that Pilot Insurance wasdecided prior to Canadian Liberty Net (and here it is worth noting that it was also decided prior to Grant), Myers J. held, at paras. 21-22: [I]n Pilot the lower threshold test was suggested for the defence of fair comment, but not justification. The case therefore contemplatestwo standards to be applied in defamation injunctions. The higher standard is to be applied to what a plaintiff has to prove (the making ofstatements which are defamatory) and to one of the defences which a defendant may raise (the truth of the statements).

A lower thresholdis to be applied to the defence of fair comment, and, although not mentioned, presumably the other defences available to a defendant,such as qualified privilege. (As will be seen, qualified privilege is the basis of my decision in the case at bar.) I do not think that this distinction is in accord with the policy rationale articulated in Canadian Liberty Net or the long-standingdefamation cases which it cited. Nor do I see the logic of the distinction. The object of the exercise must surely be to assess thelikelihood of a plaintiff succeeding at trial.

That is dependant both on what a plaintiff must show in order to succeed and what adefendant must demonstrate in order to make out a defence. [13] This is similar to the conclusion of Professor S.F. Brown in Brown on Defamation: Canada, United Kingdom, Australia, NewZealand, United States, second edition volume 6 at

p. 26-36, 26-37 as follows: A court will look to see if the defendant has a sustainable defence; if so an interim injunction will not be granted. It must be beyonddoubt that there are no defences. An injunction should issue only if the defendant does not deny the falsity of the publication. Even if itis conceded that the publication is untrue, an interlocutory injunction will not be granted where the defendant intends to defend on thegrounds of privilege or fair comment on a matter of public interest. (Emphasis added).

Publication [14] The Corporate Media Defendants contend that, to the extent that the Articles are merely searchable on websites within theircontrol, they are not currently “published”. They rely upon the decision of the Supreme Court of Canada in Crookes v. WikimediaFoundation Inc., 2011 SCC 47 , [2011] 3 S.C.R. 269. That case concerned whether a website hyperlink that connected toallegedly defamatory material could be said to constitute a “publication” of that material.

Abella J., for the majority, held that a becausein creating a link to content one does not exert any control over that content, the creation of the link cannot be held to be defamatory. It isworth noting, however, that Abella J. was very mindful of the potential for defamation by way of internet publication. She noted, at para.37: I do not for a moment wish to minimize the potentially harmful impacts of defamatory speech on the Internet. Nor do I resile fromasserting that individuals' reputations are entitled to vigorous protection from defamatory comments.

It is clear that "the right to freeexpression does not confer a licence to ruin reputations" (Grant, at para. 58). Because the Internet is a powerful medium for all kinds ofexpression, it is also a potentially powerful vehicle for expression that is defamatory. In Barrick Gold Corp. v.

Lopehandia (2004), (ON CA), 71 O.R. (3d) 416 (C.A.), at para. 32, Blair J.A. recognized the Internet's "tremendous power" to harmreputation, citing with approval the following excerpt from Lyrissa Barnett Lidsky, "Silencing John Doe: Defamation & Discourse inCyberspace" (2000), 49 Duke L.J. 855, at pp. 863-64: Although Internet communications may have the ephemeral qualities of gossip with regard to accuracy, they are communicated througha medium more pervasive than print, and for this reason they have tremendous power to harm reputation.

Once a message enterscyberspace, millions of people worldwide can gain access to it. Even if the message is posted in a discussion forum frequented by only ahandful of people, any one of them can republish the message by printing it or, as is more likely, by forwarding it instantly to a differentdiscussion forum. And if the message is sufficiently provocative, it may be republished again and again. The extraordinary capacity ofthe Internet to replicate almost endlessly any defamatory message lends credence to the notion that "the truth rarely catches up with alie".

The problem for libel law, then, is how to protect reputation without squelching the potential of the Internet as a medium of publicdiscourse. (Emphasis added). [15] The Defendants contend that Crookes raises significant legal and factual issues about what constitutes publication on theinternet, such that it is not possible for the Plaintiff to establish that the articles are “published” at this interlocutory stage.

Because, theDefendants argue, the articles can only be accessed as a result of an internet search constructed a certain way, there is some question asto whether the Defendants are publishing them. [16] With respect, the same could be said of every piece of information or bit of content on the internet. I do not agree thatCrookes confuses the issue in the way the Defendants suggest. To apply Crookes to this case would be to say that a link to allegedlydefamatory content posted on (for example) the Calgary Herald website is not publication because the person posting the link exercisesno control over the content.

That control is exercised by the party posting the content itself (ie. the Calgary Herald), and in my view itmatters not whether the content appears prominently on the front page of the website or only appears as a result of a search; the partyposting the defamatory content has “conveyed defamatory meaning to a single third party who has received it” (per Abella J.A. inCrookes, at para. 16). [17] It is the Plaintiff’s uncontested evidence that the

article appears on 37 websites, which is a superhighway that is within thecontrol of the corporate Defendants. It is therefore published by them. “Defamatory”

[18] The qualities that make a statement defamatory are described by Cory J. in Botiuk v. Toronto Free Press Publications Ltd., atpara. 62: For the purposes of these reasons, it is sufficient to observe that a publication which tends to lower a person in the estimation ofright-thinking members of society, or to expose a person to hatred, contempt or ridicule, is defamatory and will attract liability. SeeCherneskey v. Armadale Publishers Ltd., (SCC), [1979] 1 S.C.R. 1067, at p. 1079.

What is defamatory may bedetermined from the ordinary meaning of the published words themselves or from the surrounding circumstances. In The Law ofDefamation in Canada (2nd ed. 1994), R. E. Brown stated the following at p. 1-15: [A publication] may be defamatory in its plain and ordinary meaning or by virtue of extrinsic facts or circumstances, known to thelistener or reader, which give it a defamatory meaning by way of innuendo different from that in which it ordinarily would beunderstood.

In determining its meaning, the court may take into consideration all the circumstances of the case, including any reasonableimplications the words may bear, the context in which the words are used, the audience to whom they were published and the manner inwhich they were presented. [19] In Grant, McLachlin C.J. succinctly described defamatory words, at para. 28 as ones “that would tend to lower the plaintiff’sreputation in the eyes of a reasonable person.” [20] The

Article paints a vivid picture of a disastrous political campaign falling apart in large part because of the out of controlvanity of the candidate. Because of the Plaintiff’s background as a prominent war reporter , the word “dud”, found in the text of thearticle and also most prominently in the headline, may have seemed an apt and amusing metaphor but there can be no denying that theterm is essentially synonymous with catastrophic failure. Short of alleging criminality or corruption, it is about as harsh as politicalassessments come.

There is no doubt in my mind that the characterization of the Plaintiff as a complete failure as a political candidate,and further the characterization of the Plaintiff as an individual so vain as to be essentially impossible to work with, would lower thePlaintiff’s reputation in the eyes of a reasonable person. “Justified” [21] The defence of justification is established if the defamatory statement is proved to be true, or substantially true. If theevidence at trial establishes that the

article is defamatory, the onus will shift to the Defendants to prove that the defamatory content wasjustified. [22] In the context of an application for an interim injunction, there is no change in the party bearing the onus. The foregoingauthorities make it very clear that it falls to the party seeking the injunction to establish both the existence of a defamatory statement andthe essential impossibility of a jury finding that the statement was justified. This sets an extremely high bar for any applicant seeking aninjunction of this nature.

In this case it also raises an interesting evidentiary issue. [23] Rules 5.31 and 6.11 of the Alberta Rules of Court provide: 5.31(1) Subject to rule 5.29, a party may use in support of an application or proceeding or at trial as against a party adverse in interest anyof the evidence of that other party in a transcript of questioning under rule 5.17 or 5.18 and any of the evidence in the answers of thatother party to written questions under rule 5.28.

(2) Evidence referred to in subrule (1) is evidence only of the questioning party who uses the transcript evidence or the answers to thewritten questions, and is evidence only against the party who was questioned.

(3) If only a portion of a transcript or a portion of the answers to the written questions is used, the Court may, on application, direct thatall or each other portion of the transcript or answers also be used if all or any other portion is so connected with the portion used that itwould or might be misleading not to use all or any other portion of the transcript or other answers.

6.11(1) When making a decision about an application the Court may consider only the following evidence: (

a) affidavit evidence, including an affidavit by an expert; (

b) a transcript of questioning under this Part; (

c) the written or oral answers, or both, to questions under

Part 5 that may be used under rule 5.31; (

d) an admissible record disclosed in an affidavit of records under rule 5.6; (

e) anything permitted by any other rule or by an enactment; (

f) evidence taken in any other action, but only if the party proposing to submit the evidence gives every other party written notice of that party’s intention 5 days or more before the application is scheduled to be heard or considered and obtains the Court’s permission to submit the evidence; (

g) with the Court’s permission, oral evidence, which, if permitted, must be given in the same manner as at trial. [ 24 ] The Plaintiff has sought in this application to use information contained in the questioning of the Defendants Kristine Robidoux, Q.C., Roderick Love, Alan Hallman, Bruce Thorpe and Bill Smith. These individuals have been identified by Mr. Martin as sources for the

article and are co-defendants in this action. The Plaintiff seeks to rely upon various statements that these co-Defendants have made in the course of questioning as evidence against the Corporate Media Defendants. If, for example, Mr. Martin has pointed to one of these individuals as a source for a particular statement, and that individual in questioning says that they are not the source for that statement or that Mr. Martin is not accurately reporting what they said, it is the Plaintiff’s contention that this should be received in evidence against the Corporate Media Defendants.

He argues that this falls outside of the scope of the Rules cited above because the statements made in questioning that he seeks to introduce are not to be admitted for the proof of their contents but only as proof that the statements themselves have been made. They would be admitted not as proof of the falsity of statements made in the article, but proof that in view of these statements, no jury could possibly find the

article justified. [ 25 ] I appreciate the distinction that the Plaintiff is attempting to make, but in the end what the Plaintiff seeks is to use evidence given in the questioning of some defendants in an application against other defendants, contrary to express provisions of Rules 5.31(2) and 6.11(1)(c). Distinguishing between statements admitted for the truth of the contents therein and statements admitted as proof that the statement was made is sometimes necessary when considering the rule against hearsay, and even then it can be a difficult distinction.

But there is nothing in Rules 5.31 or 6.11 that would suggest that this is a permissible distinction when determining whether evidence from questioning may be admitted. [ 26 ] Consequently, I agree with the Defendants that paras. 28 through 32, 34, 35, 38, 41 through 45 and exhibits “L” “M” and “P” to Mr. Kent’s Affidavit of March 29, 2012 are not admissible; that paras. 19 and 20 of Mr. Kent’s Affidavit of April 5, 2012 are not admissible; and that paras. 5, 6, 10, 12, 15 and 17 and exhibits “B”, “C”, “D”, “E” and “F” are not admissible.

Therefore there is no evidence before me that would allow me to assess the Corporate Media Defendants’ justification defence and thereby determine it to be destined to fail. [ 27 ] This leaves the question of whether it is incumbent upon the corporate Defendants to provide evidence of justification at this stage.

In Canadian Liberty Net , at para. 49 , Bastarache J. approved the following formulation of the test found in Injunctions and Specific Performance (2nd ed. 1992 (loose-leaf)), at paras. 5.40-5.70: ...There is a significant public interest in the free and uncensored circulation of information and the important principle of freedom of the press to be safeguarded....

The well-established rule is that an interlocutory injunction will not be granted where the defendant indicates an intention to justify the statements complained of, unless the plaintiff is able to satisfy the court at the interlocutory stage that the words are both clearly defamatory and impossible to justify. [ 28 ] In Canada Metal Co. Ltd. , the test was put as follows, at p. 539:

...it has been universally and consistently held by British and Canadian Courts that such an interim injunction will never be grantedwhere the defendant expresses his intention to justify unless the words in question are so clearly defamatory and so obviously impossibleto justify that the verdict of a jury accepting a plea of justification as a defence would of necessity have to be set aside as a perversefinding on appeal [29] The question of whether it was incumbent upon the defendant to adduce evidence in respect of the defence of justification andthe defence of qualified privilege was considered in S.I.U.

Myers J. noted, at para. 25, that there was some conflicting authority in thisregard. He pointed to the foregoing excerpt from Injunctions and Specific Performance, as cited by Bastarache J. in Canadian LibertyNet. But he also looked to Friesen v. Chiu, 2006 BCSC 2104, wherein Ehrcke J., relying upon Pilot Insurance and Rosemond EstatesInc. v. Levy (2003), (ON SC), 65 O.R. (3d) 79 (Sup.Ct.) concluded that where the plaintiff had established that thedefamatory nature of the communication, and provided evidence of actual malice, the defence of justification was likely to fail.

Myers J.interpreted this to be conflicting authority to the effect that it is in certain circumstances incumbent upon a defendant to provide evidenceat the interlocutory stage of the merits of a justification defence, but I am not certain that the decision stands for so broad a proposition. Itseems to me, instead, that Friesen can be seen as a case in which the plaintiff’s evidence was sufficiently strong to meet the test. In anyevent, Friesen is distinguishable because the plaintiffs brought evidence of actual malice.

In S.I.U., Myers J. stated what I believe to bethe appropriate test, at para. 33: ...the onus of showing a defendant’s lack of bona fides recklessness with respect to the trust, or lack of belief in the truth of the statementsis on a plaintiff. In an interlocutory injunction, I do not think it is up to a defendant to come forward with facts that go to these issues, andcertainly not where a plaintiff has adduced no facts to defeat a claim for qualified privilege, as is the case here. [30] It is necessary for the Plaintiff to prove both that the

Article is defamatory and that it is impossible to justify, ie. untrue. ThePlaintiff has not convinced me that the Corporate Media Defendants will fail to prove that the defamatory statements made in the Articlewere justified. To paraphrase Professor Brown (supra, at para. 13 above), it would concededly seem difficult to immediately point to adefence, but I do not believe it is beyond doubt that there are no defences. The injunction is therefore denied. The Defences of Fair Comment and Qualified Privilege, and Delay [31] Justification has a long history as a defence to a claim of defamation.

Fair comment and qualified privilege are more recentinnovations and developing areas of the law. Clarity of the law in these developing areas would not be advanced by lengthy obiter dictahere. It is not necessary to consider these defences at this stage of this proceeding and so I decline to do so. Nor do I think it necessary toconsider whether the Plaintiff’s posting of the

article on his own website (linked, it should be noted, to the Plaintiff’s comments) factorsinto the analysis at the interlocutory stage. Thus, I have not considered it either. [32] It is worth noting, however, that Mr. Kent filed his Statement of Claim nearly two years, and this application to enjoinpublication, more than four years after the publication of the

Article in the National Post and Calgary Herald in print and on theirassociated websites. As I have noted above, the test for an injunction to restrain publication is different from the Cyanamid test thatwould otherwise apply. I am also mindful that, to the extent that the question of delay is relevant in the context of the test for aninterlocutory injunction, it tends to be so with regard to irreparable harm or the balance of convenience: North West Co. v. DelconProperty Co. Ltd., 2008 ABQB 342; Horvath v. Syncrude Canada Ltd., 2006 ABQB 185. However, in U.R.F.A. v. University ofRegina (1999), (SK KB), 182 Sask.

R. 85 (Q.B.), Barclay J. held that delay in and of itself could constitute a groundfor denying an interlocutory injunction, at paras. 62-63 ...Interlocutory relief is granted on the basis of urgency and a plaintiff who delays demonstrates a lack of urgency and makes its positionmuch less convincing.

As injunctive relief is an equitable remedy any delay by the applicants is a matter that the Court can consider in exercising its discretion.Therefore, on this ground alone I would dismiss the application. [33] An interlocutory injunction is an extraordinary remedy and even more where the injunction would restrain the exercise of aprotected Charter right. Extraordinary remedies arise out of urgent need, and in waiting four years to bring this application the Plaintiffhas demonstrated a lack of urgency.

[ 34 ] This is not to say that there has been no actionable defamation – that is a matter for the trier of fact – but it is to say that I see no reason to issue an injunction to restrain the Corporate Media Defendants from continuing to host the

Article on their websites when for four years the Plaintiff has been aware of the posting but waited to take action. The Election Act [ 35 ] In the course of argument, the Plaintiff referred to s.160 of The Election Act , R.S.A. 2000, c.

E-1: s. 160 A person who, before or during an election and for the purpose of affecting the voting for a candidate at that election, makes or publishes any false statement in relation to the character or conduct of that candidate or of the withdrawal of that candidate, is guilty of an offence and liable to a fine of not more than $2000. [ 36 ] An offense under s. 160 requires proof of an intention to affect the voting for a candidate in an election and is one of many provisions in the Act aimed at safeguarding the electoral process in Alberta.

A candidate or any other individual may complain of a breach of s. 160 to the relevant authorities. I do not think that s. 160 was in any way intended to affect the

interpretation of the common law tort of defamation or the defences available in the context of the trial proper or in an application for an interim injunction. Conclusion [ 37 ] The application for an interim injunction to restrain the Corporate Media Defendants from further online publication of the

Article is denied. Heard on the 25 th day of May, 2012. Dated at the City of Calgary, Alberta this 2 nd day of August, 2012. W. A. Tilleman J.C.Q.B.A. Appearances: Michael Bates for the Plaintiff (Applicant) G. Scott Watson

for the Respondents