Winkler successful in landmark media libel case
By Rob Lamberti, AdvocateDaily.com Contributor
A recent Ontario Superior Court ruling of criminal contempt resulted in a newspaper publisher being sentenced to 21 days in jail and levied with one of the highest damages awards for spreading a false statement about a Canadian senator, says Toronto litigator and mediator Howard Winkler.
Justice Frederick Myers' ruling follows an earlier finding by Superior Court Justice Sidney Lederman that the defendants — a Toronto-based ethnic community newspaper, its holding company and publisher — libelled the plaintiff, who represents Ontario in the Red Chamber.
"The finding of criminal contempt is quite unusual and the imposition of the jail term was unique," says Winkler, who represented the plaintiff senator.
The court found that setting only a financial penalty would not work in finding a resolution or a deterrent in this case, he tells AdvocateDaily.com.
In the earlier court hearing, Lederman issued an injunction prohibiting the publisher and her company from repeating the libel of the plaintiff, directly or indirectly, expressly or by innuendo.
But less than two months later, the publisher repeated the libel, says Winkler. While she was found to be in contempt by Myers in Superior Court, a review of the case by the Ontario Court of Appeal unanimously found "the appellant created a controversy so that she could defame the respondent. This was entirely personal."
The hearings determined the publisher's conduct was deliberate "and the intent all along was to destroy the reputation of the senator," says Winkler, principal and founder of Winkler Dispute Resolution. "We presented evidence that years ago the publisher felt slighted by the senator when he was for good reason late in attending a function held by the newspaper," he says.
The newspaper then published an article saying the senator should respect the media because it could destroy him, Winkler says.
"The antagonism continued and the court was persuaded that ultimately it was all part of the threat the publisher made those many years ago," he says.
The rules of responsible journalism are clearly outlined in a 2009 case formulating the boundaries of responsible communication, he says. But the publisher in this matter was not able to provide the court any "evidence or verification of any research to support the allegations being made, there was no fact-checking, and the newspaper never reached out to the senator to warn him about the nature of what was to be published and give him an opportunity to respond," Winkler says.
"In fact, on cross-examination, I was able to get her to admit that she didn't believe the allegations to be true," Winkler says. "You go down the checklist of responsible communication and it's a classic case of how to be irresponsible and disentitle oneself to that defence."
It’s common that in a case where a court order was defied, a ruling of civil contempt may be issued by a judge, he adds, but Myers "was very clear in his view that this amounted to a criminal contempt because it was so knowing and deliberate on the defendant's part in his opinion.
"The criminal contempt is for an offence against the court, not so much the plaintiff," Winkler explains. "Myers found the publisher was aware of the order, that she knew the scope of it and deliberately tried to circumvent it by having other people republish the original libel."
The appeals court found the conduct of the publisher "demanded a substantial award of punitive damages," adding after Lederman's judgment, "the appellant had repeated the defamation, knowing full well that it was false. On the facts as found by the motion judge, deterrence could only be adequately served by a significant award of punitive damages."
The behaviour of the publication is unprecedented, Winkler says.
"This is a situation where the publisher allowed her personal animosity towards the senator to creep into the work of the newspaper and the product it was publishing," he says. "This case represented a complete dereliction of the responsibility that comes with the privilege of being a publisher."
Winkler believes the case sits among one of the top damage awards issued for media libel.
"I think the case will be relied upon by others to try and push the envelope on damages," he says, which included $150,000 for general and aggravated damages, $100,000 in punitive damages, and each of the media defendants was fined $5,000 for contempt and court costs, totalling $150,000.
"We're engaging in efforts to collect on the judgment and the cost orders," he says.