TORONTO — A lawsuit by the world’s largest fast-food operator over a report on the content of its chicken sandwiches is an attempt to stop the CBC from covering matters of public interest, an Ontario court heard on Tuesday.
Subway’s claim for $210 million in damages over a Marketplace broadcast in February 2017 about the chain’s Canadian chicken offerings has already had a chilling effect, a lawyer for the public broadcaster said.
Gillian Kerr told Superior Court that laboratories have become leery of working on investigative pieces or are demanding full indemnity before doing so.
U.S.-based Subway IP, along with Subway Franchise Systems of Canada and Doctor’s Associates in the United States, claims the program defamed the company and hurt its bottom line.
The company argues the program — which found only 50 per cent chicken DNA in Subway’s chicken sandwiches with as much soy — was factually wrong and based on a “complete lack” of scientific evidence.
“The chicken products are, and were, one per cent soy protein,” Subway lawyer Sana Halwni told the court. “Exactly as Subway told the CBC before they ran the broadcast.”
The lawsuit, Subway says, is aimed squarely at setting the record straight, not silencing the broadcaster.
In an interview with AdvocateDaily.com, Toronto lawyer and mediator Howard Winkler says it is somewhat surprising that the parties chose to argue this matter now given that the Supreme Court of Canada (SCC) is scheduled to hear two appeals on Nov. 12, 2019, that will determine the proper interpretation of the legislation in issue.
“It is likely that Justice Edward Morgan will reserve his decision until the SCC renders its decision,” says Winkler, principal and founder of Winkler Dispute Resolution.
“If the SCC alters in any significant way the approach to the legislation taken in the cases under appeal, the parties in this case may have to file additional evidence and written argument and undertake further oral argument. It might have made more sense for this motion to be held in abeyance until after the SCC renders its judgment.”
He says the two cases before the SCC will serve to clarify the proper interpretation of legislation in issue, whose purpose is to, among other things, encourage individuals to express themselves on matters of public interest and discourage the use of litigation as a means of unduly limiting such expression.
“I am counsel to a defendant in one appeal before the Supreme Court, and we will be arguing that the Court of Appeal interpreted the legislation in a way that it fails to properly achieve the purposes of the legislation,” Winkler says.
An interesting aspect of this case is the suggestion by the CBC that the lawsuit is making laboratories, which are critical to CBC scientific investigations, reluctant to participate in their investigations, he says.
CBC wants Morgan to toss the lawsuit before trial under so-called anti-SLAPP legislation, which aims to protect free expression on matters of public interest.
“The onus is on Subway [to prove] that there are reasonable grounds to believe that the CBC’s responsible communication defence is not valid,” CBC co-counsel Christine Lonsdale told Morgan.
Subway lawyer William McDowell countered that no defence under the legislation has succeeded in cases where the “very core of the story” has been found to be false.
Lonsdale said the Subway segment aired after a thorough investigation that took months. The broadcaster asked Trent University to analyze the chicken content of the sandwiches, then had a reviewer from Guelph University look at the results.
“Those are very relevant factors in assessing the diligence of Marketplace,” Lonsdale said. “These were not less trustworthy sources or sources with an axe to grind.”
In addition, she said, it was a matter of significant public interest, which favoured the dissemination of the information. CBC, she said, was practising responsible journalism.
Marketplace asked Subway repeatedly for comment before airing the piece but the company refused an on-air interview. It did deny CBC’s findings but refused to provide the percentage of chicken or other ingredients on the basis the information was proprietary.
Instead, the company developed an internal public relations strategy and then an external strategy that denounced the findings as 100 per cent wrong, court heard.
“They decided they weren’t going to engage with the CBC,” Lonsdale said. “(But) the Subway side of the story was reflected in the program,” Lonsdale said.
The CBC lawyers said Subway has a history of aggressive litigation, including a separate lawsuit against Trent University.
Kerr also said the restaurant operator had exaggerated the impact of the broadcast on its fortunes, which she said were minimal at best.
“There’s a complicated question as to what the losses suffered from a defamation are,” Morgan interjected.
The hearing continues.
Australia continues to lead the way in the consideration of online liability, and it remains to be seen whether Canadian courts will follow its lead, says Toronto lawyer and mediator Howard Winkler.
“Australian courts are trending towards the protection of reputation in priority to free expression, as shown in recent decisions,” says Winkler, principal and founder of Winkler Dispute Resolution.
A recent decision by the Supreme Court of New South Wales concerned a man whose treatment in custody attracted nationwide coverage, as well as commentary on the websites of various news agencies. After he was released, the man sued several large Australian media outlets, alleging they were responsible for the comments posted on their Facebook pages. The court agreed, stating, “When a defendant commercially operates an electronic bulletin board and posts material that, more probably than not, will result in defamatory material, the commercial operator is ‘promoting’ defamatory material and ratifying its presence and publication.”
Winkler tells AdvocateDaily.com he was surprised by the decision, noting “It represents a significant extension of the common law and arguably takes it to an unreasonable extreme where it starts to unduly discourage free expression.”
He explains that the court ruled that websites take on the liability of a being a primary publisher when certain conditions are met: it provides a platform for comments, facilitates the dissemination of those comments, has the ability to either censor or turn off comments, has the ability to filter comments by identifying certain key words and can anticipate defamatory comments.
“This judgment takes the principle of liability further than it’s ever been taken before, at least in a common law jurisdiction,” he says.
In 2017, the Supreme Court of South Australia set another precedent in this area when it ruled that the web site operators were liable for defamatory content on their platforms, but only after they were put on notice about it, and if they then failed to take it down.
“The ignorant should not be allowed to wreck reputations with impunity,” the 2017 judgment reads. “Once knowledge, actual or constructive, of the presence of the words is proved, the secondary publisher who persists in dissemination of the material carries the risk … which may be made in any action brought by a primary publisher.”
“That was a fair decision, as it essentially recognized that sites such as Google cannot monitor every comment made and decide whether it should be posted or not,” Winkler says.
In contrast, he says the recent Australian decision doesn’t give publishers the protection of having time to react and take the defamatory material down before they are held responsible for it.
“In interpreting common law principles, courts always have to recognize the fine balance between freedom of speech and the protection of reputation,” Winkler says.
“The pendulum swings back and forth between those two, with Canadian courts currently trending towards the protection of expression, while the Australian courts are favouring the protection of reputation,” he says.
Winkler says this issue has not yet been tested in Canadian courts, which follow the same common law principles as Australian courts.
“When this issue does come up here, judges will have to carefully consider the Australian trend and decide whether they’re going to follow it, or not,” he says.
“Bill C-76 needs to be put into context,” says Winkler, principal and founder of Winkler Dispute Resolution. “The bill does not really relate to the type of election tampering that the media, government and public have been concerned with. It is wrong to think it will serve as a cure-all to prevent undue influence in the electoral process.”
He says the legislation requires online platforms to keep a registry of all paid political and partisan ads they carry. Google has responded by “banning political advertising on its platforms ahead of the Canadian federal election “because of new ad transparency rules it says would be too challenging to comply with,” the Globe and Mail reports.
Even if the search engine company were to comply with the legislation, Winkler says that would not be a solution to the manipulation of our political system during elections, since the bill only focuses on paid online advertising, and ignores social media.
“Anyone intent on influencing an election won’t use paid advertising,” he says. “They will use social media, which is much more difficult to track. The kind of improper influence that Russia was said to have in the last U.S. election was mostly through social media, and that does not fall within the parameters of this legislation.”
Winkler says the Canada Elections Act already requires those who are engaged in political advertising to register. That includes political parties, associations, candidates and certain third parties comprised of individuals or groups.
“The kind of transparency that is being discussed, to some extent, already exists,” he says. “There is a means of accountability, as anyone who spends more than $500 has to register with Elections Canada.”
The new tracking requirements in Bill C-76 will assist the government in the enforcement of these registration obligations, Winkler says, as the federal government will be able to compare the reports of the online platforms to its own registration database, ensuring that everyone who has purchased political advertising is registered with Elections Canada.
“It seems that the whole purpose of this legislation is to assist the federal government in enforcing provisions that are already there,” he says.
Canada could look south of the border for another solution, Winkler says, explaining that when any person or group in the U.S. registers as a third party, they are given a registration number by the U.S. Federal Election Commission, which they must provide when they purchase advertising.
“If Canada implemented the same type of system, Google and Twitter and others could demand the registration number before processing the advertising order, ensuring that anyone who is advertising is registered,” he says.
If the government wanted to regulate and monitor social media platforms, that would “raise really tricky issues,” Winkler says.
“How do we limit or control what people say on Facebook or Twitter while respecting their right to free expression and speech?” he asks.
If anyone attempted to control or regulate what is said on these online platforms, that would be viewed as censorship, Winkler says.
“The question then becomes, who will be the censor?” he says. “Should a private business determine what content should or should not be on its site? Do we want the government to be the censor of what is communicated to the public through these platforms?”
Winkler says the solution starts with clearly identifying who is behind any social media post dealing with politics.
“Where there is political speech, we should demand that the maker of the speech be properly identified,” he says. “Let’s not permit anonymous speech, but require those who want to disseminate opinions to do so with their real identities.”
When people are publicly held accountable, “what they say will be more tempered and well considered,” Winkler says. “Freedom of expression should also come with accountability.”
TORONTO — A high-profile RCMP demand for a journalist’s background materials related to interviews with a suspected terrorist should be set aside even though Canada’s top court recently upheld the police request, Vice Media argues in a new legal action.
The application to Ontario Superior Court hinges on indications that the accused is in fact dead.
“In this case, there has been a material change in circumstances underlying the production order since it was first issued,” the application by Vice and its reporter asserts. “The RCMP and the Crown cannot prosecute a dead person. The production order is no longer legally enforceable.”
As a result, Vice and the journalist argue, the courts should now declare the RCMP’s demand unenforceable and a violation of their constitutional rights.
The materials at issue relate to three stories the reporter wrote in 2014 on a 22-year-old Calgary man, whom police charged in absentia with various terrorism-related offences. The articles were largely based on conversations he had with the suspect, who was said to be in Iraq, via the online instant messaging app Kik Messenger.
With court permission, RCMP in February 2015 sought access to the journalist’s screen captures and logs of those chats. The reporter refused to hand them over, prompting a hard-fought battle that ended in November when the Supreme Court of Canada upheld the police demand as legitimate.
Despite conflicting indications over his fate, Vice argues the suspect was killed in Iraq in July 2015. That information only emerged in media reports in September 2017, long after the RCMP issued its production order. The courts, Vice argues, have never taken that new information into account in upholding the production order against the journalist.
The reports of his death in a coalition airstrike on Mosul were based on a statement by the U.S. Army Central Command at the time. However, the U.S. State Department later placed the man on a terrorist watch list, leading to speculation that he might still be alive, although the command stood by its assessment as recently as last month.
In supporting materials filed with the court, Vice cites the State Department as saying that a person may for various reasons remain a designated terrorist even after death. The upshot, Vice argues, is that the U.S. military assessment the suspect is dead is “highly reliable” and uncontradicted.
“As the criminal charges against [the suspect] cannot be prosecuted or investigated any further because there is no prospect of a trial as a result of [the man’s] death, any further attempt to enforce the production order would be for reasons that are unrelated to the basis upon which it was issued and, therefore, unlawful,” the court application states.
In an interview with AdvocateDaily.com, Toronto lawyer and mediator Howard Winkler says the test on Vice Media’s application will be whether it can demonstrate that there is new or more reliable evidence that the suspect is dead.
“They will also have to demonstrate that if the new information had been available to the authorizing judge, it could reasonably have affected his decision,” says Winkler, principal and founder of Winkler Dispute Resolution. “If Vice Media can overcome these obstacles, it is likely that the attempt to set aside the production order will be successful on the basis there no longer exists an overriding societal interest in investigating a crime, which cannot be prosecuted due to the death of the subject of the investigation.”
In the case adjudicated by the Supreme Court of Canada (SCC), the issue related to the legality of the original production order made against Vice Media and its reporter, Winkler explains.
“The Supreme Court upheld the production order after considering the competing interests of the media’s right to gather information without government interference and society’s interest in investigating and prosecuting crimes. While the court refined the test to be used by judges in the exercise of their discretion, they did not feel that it was appropriate to overturn the original production order,” he says.
However, Winkler says the SCC left the door open in cases where the production order was made ex-parte.
“If the order is granted ex parte and is later challenged by the media, the standard of review is determined by applying the following test: if the media points to information not before the authorizing judge that, in the reviewing judge’s opinion, could reasonably have affected the authorizing judge’s decision to issue the order, then the media will be entitled to a de novo review,” the court stated.
If the evidence suggesting that the man is dead was not before the authorizing judge, the argument now being advanced by Vice Media is tenable, Winkler says.
The question as to whether the Journalistic Sources Protection Act would apply to the current application by the news site is up for debate, he adds.
“I would suggest not, but in any event, Vice Media should get the benefit, in its current application, of the refined test established by the Supreme Court of Canada,” Winkler says.
This case underscores the importance for journalists to properly document the terms of their relationship with confidential sources, including the fact that the information is only being provided upon the assurance of confidentiality, he says.
“However, journalists must take great care to not arbitrarily offer confidentiality where it would not otherwise be required. If such abuse occurs, legitimate claims of confidentiality might be reviewed with greater skepticism,” Winkler says.
The journalist, who once vowed never to hand over the materials, has repeatedly refused to respond to interview requests from The Canadian Press since the Supreme Court decision, which came amid alarm from media groups over police investigators using journalists to do their work.
In a statement on Wednesday, Vice said the U.S. military had “reliably confirmed” the man’s death in 2015, causing a significant change in circumstance to the original production order.
“While the RCMP continues to demand the production of information on a subject known to be deceased, our application respectfully asks the court to see the absurdity of such a request and revoke or stay the order,” a Vice spokesman said.
The Department of Justice did not immediately respond to a request for comment.
The Vice application, which asks for a stay in enforcing the production order pending outcome of the proceedings, is slated to he heard at the end of this month.
Federal legislation typically gives government bodies 30 days to respond to requests for information, and dissatisfied individuals are able to complain to the Office of the Privacy of Canada.
However, Winkler, principal and founder of Winkler Dispute Resolution, says the oversight body has no power to penalize offenders even when it finds violations of the law, and the Liberal government has fallen short on an election promise to fix the system.
“In my view, government agencies are abusing the system and the privacy commissioner lacks the will and resources to do anything about non-compliance. In effect there is no policing, so government bodies don’t have to take requests seriously,” he says.
“From my perspective, the election promises of a more transparent government paid nothing more than lip service to the idea without doing anything to ensure that the system actually works. Unfortunately, there has not been much exposure of the regime’s failure, and no public outrage about the resulting lack of transparency in decision-making,” Winkler adds.
In one case, the newspaper was quoted a $32,000 bill by the Toronto Transit Commission to dig up documents on a controversial subway extension, while another reporter says he is still waiting on a response from the RCMP three years on from a request, even after paying an extra fee required by the police force.
Winkler says much of his freedom-of-information experience relates to federal bodies, including the Canada Revenue Agency (CRA). He says most requests start off on the wrong foot.
“The first thing agencies will do is to scrutinize the request for any technical deficiencies. Whether that’s because they’re overwhelmed by the workload or because of an institutional bias against compliance, it allows them to stop the 30-day clock from running,” Winkler explains.
He says a request he sent to the CRA in October 2015 on behalf of a client highlights the multifaceted problems with the administration of access to information.
Although the CRA places no time limits on client authorizations for representatives to act on their behalf in tax matters, Winkler says it takes a different approach to information requests, requiring a current authorization to confirm the client’s consent.
“There is no statutory requirement for these fresh authorizations,” he says.
“In my view, the demand for a current authorization is nothing more than a delay tactic to avoid having to act on the access request in a timely way,” Winkler says. “Once the new authorization was provided, the new 30-day deadline for a response was the middle of December 2015.”
However, after the 30 day period expired, Winkler says he received an extension request from the CRA asking for an extra 270 days to respond. Regarding the length of the extension as “taken late and abusive,” Winkler complained to the privacy commissioner in January 2016.
“All the privacy commissioner had to do was count to 30 to see that the extension sought by CRA was late and therefore invalid,” he says.
Winkler says “incredibly” the commissioner took no steps to deal with the extension complaint until after the CRA finally delivered its response in November 2017, more than two years after the original request.
“The privacy commissioner ultimately responded in December 2017, acknowledging that the CRA’s extension request was improper. However, since the CRA had by then, in fact, responded, it considered the complaint against the CRA to be resolved, with no censure or criticism of CRA whatsoever,” he says.
“This office is supposed to be policing these agencies, but frankly, due to a lack of funding, no power to punish non-compliance and an apparent lack of will it’s failing miserably in the discharge of that responsibility.”
While the law does protect the right of Ontario consumers to post negative reviews written in “good faith,” commenters do still run the risk of being tied up in expensive litigation, Toronto litigator and mediator Howard Winkler told The Larry Fedoruk Show on Newstalk 610 CKTV.
Winkler, principal and founder of Winkler Dispute Resolution, told listeners that as long as individuals who choose to post a negative review of a person or business are acting in good faith and honestly, the defence known as ‘fair comment’ has always existed in Ontario law and “is something that an individual could rely on if they post a review which is then the subject of litigation.”
However, he added, “the real concern though for consumers, is not so much the risk of being successfully sued, and one has to worry about that if the review is false or it’s unfair, but the risk of getting tied up in expensive litigation.
“So, even if a defence exists, when one posts a review, they have to remember a few things. One, that the review they’re posting is going to, or could have a real impact on the people or business that they’re commenting on. Two, they should be honest, and they should be responsible and hopefully, if they do those things, they’ll keep themselves out of trouble.
“But one of the big risks is just being the defendant in a lawsuit, which requires the retaining of a lawyer or representing yourself in court,” said Winkler.
The problem today, he explained, is the reach of the reviews — which not only create liability for those posting a comment but can generate problems for businesses who may receive a false review.
“Depending upon the nature of the company, it’s not limited to just the small community that the individual may be in, it’s essentially worldwide in scope. And so, the impact of the comment and the review has been magnified as a result of the advancing technologies.”
Although many people post reviews in a knee-jerk fashion without an appreciation of the fact that the comments could be the basis of a lawsuit against them, Winkler suggested that instead, anyone publishing a review should be careful with their choice of language.
“So, for example, this ‘defence of fair comment’ that I mentioned — instead of saying that someone’s business is bad, one could say ‘in my opinion’ or ‘based on my experience.’ So, instead of being categorical in the comment, to the extent that people can express their view in language that makes it clear that it’s their opinion, then they’re going to be less susceptible to action.”
Also, said Winkler, reviewers should “provide some support for the expression of the opinion so that a reader or anyone who’s listening to the comment can judge for themselves whether to accept or reject the opinion or the comment that you’re expressing.”