Campbell v. Jones

Campbell v. Jones Court Supreme Court Date 2001-08-30 Citation 2001 NSSC 139 Docket SH 121031 Judge/Registrar/Adjudicator Moir, Gerald R. P. (Honourable Justice) Document Type Decision Relations Library Sheet - Campbell v. Jones - 2001 NSSC 139 - 2001-08-30 - Library Sheet Decision Content 1995 Date: 20010830 Docket: S.H. No. 121031 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: Campbell v. Jones, 2001 NSSC 139] Between: Carol Campbell Plaintiff - and - Burnley A. Jones and Anne S. Derrick Defendants DECISION Heard: at Halifax before the Honourable Justice Gerald R.P. Moir on April 3, 4, 5, 6, 9, 10, 11, 12, 17, 18, 19, 20, 23, 24, 25, 26, 27 and 30, 2001 and on May 1, 2, 3, 7, 8, 9 and 10, 2001 with last submission received on July 6, 2001. Decision: August 30, 2001 Counsel: George W. MacDonald, Q.C., Hugh H. Wright and John Rice, Articled Clerk, for the plaintiff William L. Ryan, Q.C., Nancy G. Rubin and Leah Hutt, for the defendant Burnley A. Jones S. Bruce Outhouse, Q.C., Lester Jesudason and Kristine Anderson, Articled Clerk, for the defendant Anne S. Derrick, Q.C. MOIR J.: The plaintiff sued the two defendants in defamation. The case was tried with a jury, who returned a general verdict in favour of the plaintiff and awarded damages of $240,000. I had heard argument and had given rulings on various issues a judge must decide in an action for defamation. On two of these issues, I announced my conclusions but said I would provide reasons in writing at a later time: my rulings that the defence of qualified privilege did not apply and that there was insufficient evidence for the plaintiff’s plea of actual or express malice to go to the jury. Also, the parties have now made submissions on prejudgment interest and costs. I have to provide my decisions on those subjects. Qualified Privilege. Early in March 1995 the plaintiff, Constable Carol Campbell of the Halifax police department, was called to Saint Patrick’s - Alexandra School. The school serves a neighbourhood where many of the residents are Black and some are poor. Constable Campbell investigated two thefts at the school, a theft of three hundred dollars from the purse of the school librarian and a theft of ten dollars from a bag belonging to the daughter of a student support worker. Three twelve year old girls were suspects in both thefts, and Constable Campbell was told that one of the girls had put the ten dollars down the front of her pants. A school official had detained the girls in a guidance room, the interior of which could possibly be seen from an outer office because the dividing wall had large but somewhat obstructed windows. Constable Campbell searched the girls in that room. She did so without warrant or arrest. She did not advise the children of their rights to counsel or of their rights not to be searched without warrant or arrest. She did not take steps to see that parents or guardians were contacted, which appears to have been standard procedure in circumstances like these. She later acknowledged her failures and was disciplined. The girls alleged that Constable Campbell had conducted an extremely immodest search. Though not technically a strip search, that phrase was used, and, if the descriptions given by the girls were true, they had been subjected to something very close to a stip search. The allegations were soon made public. Press and television reported that a Halifax police officer had strip searched three school girls. Mothers of two of the girls were quoted in some of the reports. It was said that this would not have happened at a school serving a more affluent neighbourhood. There were suggestions of a complaint under the Police Act. About two weeks after the incident, two of the girls and their mothers retained the defendant, Burnley “Rocky” Jones, who was a staff lawyer with the Dalhousie Legal Aid Clinic. The other girl and her guardian retained the second defendant, Anne Derrick, Q.C., who has been in private practice for many years. Both lawyers have been involved in human rights advocacy throughout their careers. They saw a connection between the search and race. All three of the girls are black. Constable Campbell is white. The lawyers and their clients decided to file complaints under the Police Act against both Constable Campbell and the Halifax police department. The complaints would include allegations that race and status played a role in Constable Campbell’s decision to perform very invasive searches. Reference would be made to the Human Rights Act and to the equality provisions of the Charter. The lawyers also agreed to hold a joint press conference. The complaints were filed and a press release announced the conference. It attracted representatives of press and television providing coverage in Halifax, throughout Nova Scotia and into the rest of the Maritimes. Copies of the police complaint, edited to remove information identifying the girls, were distributed. Copies of letters prepared by two mothers and a guardian were distributed. Remarks were made by Mr. Jones and Ms. Derrick. Some discussion followed. The discussion involved members of the community who had also been invited. Interviews were later given to the media. The children’s versions of the manner in which they were searched were detailed in the complaints. These were related as fact although Constable Campbell’s side of the story had not yet been heard. In the complaints, in the other documents distributed at the press conference, and throughout the remarks, the expression “strip search” was used. The words “racist” and “racism” were not written or spoken. In some places the allegation of a connection between Constable Campbell’s actions and race were stated more mildly. For examples: The complaint prepared by Ms. Derrick as edited for the press conference includes, “She [the guardian] believes that Girl #3's race was a factor in her treatment and the violation of her rights. She does not think that white girls in a predominantly white school would have been subjected to the same treatment.” And Mr. Jones wrote, “Given the race of all three girls and the economic class of the residents of the area in which they live and attend school, harsher and more drastic measures were taken than were necessary for the situation.” Some of the remarks were more harsh. For examples: Ms. Derrick said, “... it’s quite a reasonable assumption to make that there’s a connection between the race of the girls and their socio-economic status and the events that they were subjected to.” And Mr. Jones said, “... because the school is in an area where people are basically poor and because they were black girls, I think both the police officer and the school administrator felt they could do whatever they wanted to ... these two girls. And so they strip searched them.” Headlines in the press and leads on television referred to the statements made by Ms. Derrick and Mr. Jones as allegations of racism. For her part, Constable Campbell took it that prominent lawyers had not only added their names to a defamatory accusation that she had strip searched three young girls but they had added the additional charge that Constable Campbell either was a racist or acted upon racist motivations. For their parts, Mr. Jones and Ms. Derrick felt the headlines may have gone too far. Their purpose was to address systemic racism or adverse effects racism and to motivate the police department to cause its officers to be more respectful or sensitive or understanding in dealing with vulnerable minorities. Mr. Jones said the press puts its own spin on public statements. Ms. Derrick said the headlines would have been more accurate if they had said that systemic racism was alleged. Constable Campbell demanded a retraction. None was given and no clarification was offered. So, Constable Campbell sued. She alleged she had been defamed by the statements respecting a strip search. She also alleged that the statements about race and status were defamatory on their own and by innuendo. Ms. Derrick and Mr. Jones raised a defence of justification, but only as it regarded the statements they had made concerning a strip search. The jury was told that the defendants would not attempt to show that Carol Campbell acted out of racist motives. As regards their statements concerning race, the defendants mounted a defence of fair comment. In effect, justification was relied upon to show the substantial truth of facts substantially stated about the search, and the remarks concerning race were put forward as comments which, true or not, were honestly believed in by the defendants. The jury was asked only to give a general verdict, so we do not know for certain which of the elements of fair comment were not established. The defendants submitted that this case fell within either of two circumstances where courts will recognize an occasion as privileged although the general public is the intended audience. It was argued that the press conference was within the privilege afforded to fair and accurate reports of court proceedings, which has recently been extended to reports upon pleadings, notices of motion and affidavits not yet read in open court. In this argument, an analogy is drawn between proceedings in open court and proceedings before a tribunal functioning judicially, such as the Police Review Board, and an analogy is also drawn between pleadings in the ordinary courts and a document initiating administrative proceedings, such as a complaint under the Police Act. In addition to reports of judicial proceedings, the defendants submitted that a privilege arose outside any categorically recognized set of circumstances. This argument returns to the principle of reciprocal duties or interests. Relying on a recent decision of the House of Lords, the defendants submit that publication at large is subject to privilege where the information is of importance to the public and where the publication is justifiable in the circumstances. This argument emphasizes the importance of public scrutiny of police activities, including scrutiny of activities that may reflect systemic racism or other systemic harms to vulnerable persons; it emphasizes the effectiveness of public exposure in correcting or managing the evil of systemic racism and similar harms; and, it emphasizes the social or moral duty of lawyers and others to seek improvements in the administration of justice, including the police. According to the defendants, the permission to defame a police officer among the general public, which would come with this privilege, is controlled not only by the qualification respecting malice, but also by a requirement of circumstantial justification, which, according to the House of Lords, is inherent in the common law principle of reciprocal duties or interests. I will discuss the argument respecting reports of judicial proceedings before turning to the more basic argument. Hill v. Church of Scientology of Toronto (1995), 126 D.L.R. (4th) 129 (S.C.C.) established a modest expansion in the law of qualified privilege as it relates to public announcement of pleadings filed in court. Until then, a report on events in open court could be protected by qualified privilege, but a report of pleadings or affidavits not yet read in court was not protected: Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339. A brief sketch of the facts in Hill will show how the issue arose. The police seized a quarter million documents from the Church, and a couple hundred of these were sealed because they were found to be confidential communications with solicitors. An application to quash the search warrant was pending, and Mr. Casey Hill acted for the Crown. A Deputy Registrar responsible for licensing people to perform marriages applied for access to the seized documents. She did not notify the Church. She was granted access. Counsel for the Church of Scientology and other representatives of the Church formed the impression that she got access to the sealed, confidential documents as well as the rest. They launched an investigation. Before that was completed, the Church retained Mr. Morris Manning to bring contempt proceedings against Mr. Hill, which involved allegations Mr. Hill’s misconduct had led to a violation of the order sealing confidential documents. A press conference was organized. Mr. Manning attended, he answered some questions, and read from the notice of motion. A copy of the notice of motion and a chronology of events were distributed to the media. When the motion was heard, the contempt application was dismissed. The accusations against Mr. Hill were unfounded. Hill sued Manning and the Church in defamation. He succeeded. A number of issues had to be determined by the Supreme Court of Canada, including whether the press conference was an occasion of privilege as a report on judicial proceedings. The majority decided the occasion had been privileged, but the privilege was exceeded. Justice Cory wrote the majority opinion. One of the questions he had to address was “whether the recitation of the contents of the notice of motion by Morris Manning took place as an occasion of qualified privilege” (para. 149). He accepted, at para. 150, the formulation of the common law rule stated in Philip Lewis ed., Gatley on Libel and Slander, 8th ed. (Sweet & Maxwell, 1981): The rule of law 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. He said, “The rationale behind this rule is that the public has a right to be informed about all aspects of proceedings to which it has the right of access” (para. 151). He noted that the common law rule protected only reports of statements made and documents produced in open court, such that the qualified privilege could not extend to reports about pleadings, notices or affidavits not yet read in open court. For Justice Cory this limitation conflicted with the freedom of expression as provided in s. 2(b) of the Charter of Rights and Freedoms. Justice Cory emphasized the importance of public scrutiny of the courts by the media, and he said this extended to “knowing the kinds of submissions which can be put forward” (para. 152). He noted that, when the common law rule was established, “court documents were not open to the public” (para. 153). After referring to Ontario legislation which provided for public access to filed documents subject to orders of the court restricting access, he said, “so too is the s. 2(b) guarantee subject to reasonable limits that can be demonstrably justified in a free and democratic society” (para. 153). In the end, the defence of qualified privilege did not assist Mr. Manning or the Church of Scientology. A defamatory statement exceeding the purpose of a privileged occasion is not protected and “Morris Manning’s conduct far exceeded the legitimate purposes of the occasion” (para. 155). The application of this category of qualified privilege to the case at hand involves two analogies. The first equates proceedings in court and proceedings before a judicial tribunal. The second equates documents to be used in the public proceedings of the tribunal to pleadings, notices of motion, affidavits or like documents to be used in open court. As general propositions, I have no difficulty with these analogies. The importance of public access to proceedings of tribunals involved in police discipline has been authoritatively recognized: Southam Inc. v. Canada (Attorney-General) (1997), 36 O.R. 721 (O.S.C.) and Canadian Broadcasting Corp. v. Summerside (1999), 173 Nfld. and P.E.I. R. 56 (P.E. I. S.C., T.D.). And, the extension established by Hill logically applies to any document to be referred to in the public hearings of a tribunal. I see no logic for distinguishing, generally, between proceedings in open court and the public proceedings of judicial tribunals. However, many legislative schemes for administrative regulation mix judicial functions with others. I believe that where privilege is claimed for publication of a document that involves a legislated scheme with a mixture of functions, care must be taken to determine when and how the public, judicial aspects of the scheme arise. My primary reason for rejecting the defendants’ argument rests on my assessment that the Police Act and regulations under it do not provide for a public, judicial hearing upon the making of a complaint. I am also of the opinion that where legislation provides both investigative functions and judicial functions, a distinction has to be drawn between public scrutiny of investigations and public scrutiny of judicial hearings for the purposes of qualified privilege. I will discuss the Police Act and state the reasons for my opinion that a complaint does not, of itself, engage a judicial hearing. Then, I shall briefly explain my further reason for holding that this case does not give rise to the qualified privilege for reporting upon judicial proceedings. Counsel for Mr. Jones referred me to Boyachyk v. Dolces, [1982] 5 W.W.R. 82 (A.Q.B.), which held that a complaint made under the Police Act, R.S.A. 1980, c. P-12 was subject to an absolute privilege in so far as it was delivered to the chief of police, the person who had authority under the Alberta legislation to investigate and determine complaints in the first instance. The Police Act was said to “create a judicial proceeding in its broadest sense” (p. 87), and the complaint was protected by the absolute privilege that extends to all participants in a judicial or quasi-judicial proceeding. I was also referred to Rajkhowa v. Watson et al (1998), 167 N.S.R. (2d) 108 (S.C.), where Hood, J. extensively reviewed the authorities on absolute privilege in the context of information provided towards a judicial proceeding before a tribunal. Particularly, I was referred to her discussion at para. 23 and 24. The absolute privilege will extend to proceedings before a tribunal which has attributes similar to a court of law. Also, I was referred to Sussman v. Eales (1985), 33 C.C.L.T. 156 (O.S.C.), upheld (1986), 25 C.P.C. 7 (O.A.C.), which was discussed by Hood, J. at para. 26 to 32 of Rajkhowa. A complaint to the Royal College of Dental Surgeons was subject to absolute privilege because it initiated quasi-judicial proceedings even though, at first instance, such a complaint is referred to an investigative committee. Recently, a complaint under the Occupational Health and Safety Act, S.N.S. 1996, c. 7 was held to be protected by the absolute privilege respecting judicial proceedings: Heung v. Sheehan, 2001 NSSC 59 (S.C.). Of course, the present facts do not give rise to this absolute privilege. The Police Act complaints were publicized by the defendants and their remarks were made outside any proceedings, at a press conference. I was referred to these authorities because they tend to show that a Police Act complaint is part of a quasi-judicial process, and the argument is that publicization of a Police Act complaint is no different than publicization of documents filed with the court for the purposes of qualified privilege as extended by Hill v. Church of Scientology. Counsel for Mr. Jones allowed that for the qualified privilege respecting reports upon court documents to apply the proceedings must be open to the public, and it was pointed out that the hearing of an unresolved complaint before the Police Review Board is open to the public. Respectfully, I do not think there is such a close connection between the absolute privilege protecting participants in a quasi-judicial proceeding and the qualified privilege protecting fair and accurate reports of judicial proceedings. I accept that a report upon documents to be produced at a quasi-judicial and public hearing may be subject to the same privilege as Hill v. Church of Scientology extended to documents filed with the court, at least where the document is made available to the public by law. However, it was the importance of public scrutiny of court proceedings which impelled the decision in Hill. The qualified privilege still focuses upon the public hearing, and I think that for the analogy to be made it is essential to see that the document in question is a part of or is soon to be a part of a hearing which is open to the public and is judicial in nature. Let us look at the legislation. The Police Act, R.S.N.S. 1989, c. 348, as amended, includes provisions regarding discipline of municipal police officers, both as a result of complaints from the public and as a result of actions taken internally by the force. In the Act and in the regulations, N.S. Reg. 101/88, as amended, these two subjects are generally treated separately. However, some provisions treat of both internal discipline and discipline on account of complaint. In both categories the initial decisions are made within the force. The police officer has a right to review by the Police Review Board of findings of default or of a penalty imposed internally, whether the adverse decision is made on account of internal discipline or public complainant. The complainant has more limited rights in this regard. It appears that the complainant can only seek review of a finding of no default, and cannot seek review of penalty. Further, the complainant’s right of review is subject to the Police Commission deciding that the complaint should be referred to the Police Review Board. In addition to provisions concerning discipline of police officers, this legislation provides for some review of the practices of a municipal force and it provides for informal resolution of complaints. I will refer to specific provisions of the Act and regulations before discussing the extent to which the disciplinary scheme is similar to judicial proceedings. The Police Act establishes the Nova Scotia Police Commission and the Police Review Board. The Commission is required to carry out investigations and make reports. It is required by s. 4(9) to “carry out investigations authorized by Section 8, investigations dealing with complaints against police and disciplinary investigations on behalf of the Review Board.” Section 8 concerns inquiries requested by the Solicitor General on broad subjects: “the extent, investigation or control of crime” and “the enforcement of law.” In addition, the Commission is required to consult with and advise police authorities on “public complaints and internal discipline” and it is required to “provide investigative and administrative support to the Review Board”: s. 5. The Review Board is required to “conduct hearings” respecting “complaints referred to it in accordance with the regulations” (s. 29) and it also has authority, which is exercised privately, in respect of internal discipline: s. 29, s. 30(2) and s. 31. Subsection 33(1) provides to the Review Board powers to dispose of complaints and issues of internal discipline. Sections 22 to 29 of the Act deal with complaints up to the point where a complaint may be referred to the Review Board. Subsection 2(e) defines complaint to mean a written communication or an oral communication later reduced to writing “which alleges that a member of the force breached the Code of Conduct and Discipline or alleges the failure of the force itself to meet public expectations.” The Code of Conduct and Discipline is found in s. 5 of the regulations. Upon receipt of a complaint, the chief officer of the force or the chief’s delegate “shall attempt to resolve the matter in an informal manner”: s. 23(2). The regulations provide that a complaint must be referred for investigation to “a member of higher rank”: Regs. s. 10(2). That person must attempt to resolve the complaint if the complainant consents: Regs. s. 11(1). A resolution is reached where the complainant and the member agree: Regs. s. 11(2). Otherwise, the investigator provides a report including an opinion as to whether there has been disciplinary default and, possibly, a recommendation for penalty: Regs. s. 12(5)(a). This report goes to the police authority having responsibility for internal discipline: Regs. s. 12(5)(a). The complainant is only told that the investigation has been completed: Regs. s. 12(5)(b). A meeting is convened privately and the authority decides whether there has been default and, if so, imposes a penalty: Regs. s. 12 (7), (8) and (9). Then the complainant is advised of the outcome: Regs. s. 12(10). The investigator is also required to identify any practices of the force which may have caused or contributed to disciplinary default, which the chief is required to consider and report upon: Regs. s. 12(11). The Commission appears to have no part in these matters, but it receives copies of the complaint: Regs. s. 10(10(c), the investigator’s report: Regs. s. 12(4), the notice of disposition: Regs. s. 12(10), and the chief’s report respecting any contributing practices of the force: Regs. s. 12(11). As regards the second level of decision-making upon a complaint, s. 25(3) of the Act provides: Where a complaint is not satisfactorily resolved by the chief officer ... and where the person making the complaint or the member of a municipal police force has requested a review of that decision by the Review Board, the complaint shall be referred to the Commission in accordance with the regulations. Upon referral, “The Commission shall investigate the matter and attempt to resolve the complaint”: s. 25(4). The Act does not envision that the investigation is to aid in determination of the complaint by the Review Board. This is made clear by s. 26, which provides that statements made by the complainant or by the member to the Commission’s investigator cannot be admitted at any subsequent proceeding without consent, and that the investigator shall not give evidence and that the Commission’s file cannot be produced at a proceeding in respect of the complaint. The regulations further define the process where review is sought. If the member is dissatisfied with a finding of disciplinary default or with penalty, the member may initiate review: Regs. s. 13(1). A complainant may initiate a review of findings of no disciplinary default: Regs. s. 14(1), but there does not appear to be a right of review where the complainant is dissatisfied with penalty. As with the Act, the regulations provide for investigation and attempted resolution by the Commission through the investigator: Regs. s. 14(3). If the complaint is resolved, “the complaint shall not appear in the service record of the member to whom it relates”: Regs. s. 14(5)(b). Otherwise, the investigator completes the investigation and “may refer the complaint to the Review Board”: Regs. s. 14(10). Where the investigator refuses to do that, the complainant may appeal to the Police Commission, whose decision is final: Regs. s. 14(1) and (4). Upon referral, the Police Review Board is required to “conduct a hearing in respect of the complaint”: s. 27. The provisions concerning the Police Review Board also provide for review of measures of internal discipline taken without public complaint. In those cases, a hearing is held in private: s. 30(2). However, when reviewing the determination of a complaint, whether at the instance of the member or the complainant, the hearing is open to the public unless the board otherwise orders: s. 30(1). The parties are the complainant, the member, the chief officer, a local municipal police board, the Solicitor General and anyone who can demonstrate an interest: s. 31. The hearing is said to be de novo: s. 32. The parties have the rights to appear, be represented by counsel, call witnesses and cross-examine: s. 32. The Review Board has broad powers to substitute its judgement for that of the police authority: s. 33(1). The decision must be in writing and it is “final”: s. 33(2) and (3). In my opinion, the initial laying of a complaint under this legislation does not resemble the filing of pleadings, notices or affidavits with a court and it does not engage the public interest in scrutinizing judicial or quasi-judicial proceedings. Nothing authorizes the release of complaints to members of the public, and the evidence was that this is not done. The investigator’s report is given to the chief officer and the member only, and it forms the basis for the chief officer’s decision. The complaint leads to a private “meeting” attended by the police officer and another member of the force, who has authority to discipline. The complainant is only advised of the outcome. At this stage, the decision-making closely resembles internal discipline. The more public aspect of this legislative scheme and the aspect which involves a judicial tribunal arises in a second stage initiated not by the complaint, but by a request for review. It is only when the complainant or the officer requests review of the internal decision that there is any prospect of a public hearing. Until referral to the Police Review Board, the process is outside the rationale for the longstanding privilege that protects fair and accurate reports of judicial proceedings as stated by Cory, J. at para. 151 of Hill v. Church of Scientology because, until referred, there is no proceeding to which the public has the right of access. Too, the process is outside the rationale for the extension of the rule in Hill v. Church of Scientology. Only upon referral to the Police Review Board is there a prospective hearing in respect of which public scrutiny may extend to “knowing the kinds of submissions which can be put forward.” I conclude that if the qualified privilege protecting reports of judicial proceedings extends to Police Act complaints, it does so only when the public and judicial stage arises, that is, upon request for review and referral to the Police Review Board. Further, in my opinion, it is appropriate to distinguish a legislative scheme which has elements of compulsory investigation from a court process which does not follow an inquisitorial model. The Police Act incorporates features of both. Referral to the Police Review Board engages a process resembling proceedings in court. However, the Police Act mandates two levels of investigation into complaints. The complaint may lead to a judicial proceeding, but initially it causes an investigation. Pleadings frame the issues to be dealt with in court and, in the words of Justice Cory, “the kinds of submissions which can be put forward.” A complaint serves another purpose: to candidly inform a legally authorized authority of allegations, even suspicions, thought to be worthy of investigation. The public interest in scrutinizing judicial proceedings is to be distinguished from the public interest in knowing about the details of such an investigation, and I think it would be dangerous to extend the license of qualified privilege to the publicizing of a document designed to launch an investigation, rather than solely to define the issues for a public hearing. On behalf of Mr. Jones, it was pointed out that in Sussman v. Eales, which I have already cited, the court refused to draw any distinction between the initial reference of a disciplinary complaint to an investigative committee and the subsequent determination by an adjudicative committee. The complaint was “a necessary first step in one entire process” (p. 159) and absolute privilege protected the participants from initiation onward. It was submitted that the entire procedure under the Police Act should similarly be treated as singular for the purposes of protecting publication of the complaint. For me, the reference to Sussman v. Earle emphasizes the differences that should be borne in mind between the protection there at issue, and the protection sought by the defendants in this case. In explaining one aspect of the rationale for applying the absolute privilege, Smith, J. said at p. 159 -160 of Sussman v. Eales : Firstly, the immunity will only be conferred upon a citizen complaining in a confidential way to a body created by statute. A communication of that kind can hardly be said to be a publication of the kind that is apt to harm one’s reputation in the community to a degree sufficient to attract an award of compensation. (emphasis added) The absolute privilege at issue in Sussman v. Eales protects participants in litigation including witnesses, and it fosters candid, even confidential, disclosure and discussion necessary to investigations and decisions in the course of litigation. Thus, the absolute privilege may be lost where the person protected by it chooses to make his accusations public: Parsons v. Windsor Star et al. (1989), 71 O.R. (2d) 5 (O.H.C.). The rationale for the qualified privilege now at issue is quite the opposite: it protects public reports of litigation once it becomes public. One fosters candor, the other, public scrutiny. A distinction between investigative and adjudicative stages is irrelevant for the former, but I think it crucial for the latter because the qualified privilege concerns only the adjudicative process to which the public has access. In conclusion, I agree with the defendant’s submission that the qualified privilege protecting reports of judicial proceedings, including documents filed with the court, may extend to documents to be produced before a tribunal. However, in the case of a complaint under the Police Act, the privilege does not arise merely on the filing of the complaint because no public judicial hearing is engaged until there is a notice of review of an internal decision and, where the complainant seeks review of the internal decision, a determination by the Police Commission to refer the complaint to the Police Review Board. Further, it is my opinion the privilege should not arise where the immediate purpose of the complaint concerns an investigation rather than a hearing. I turn then to the defendants’ argument for qualified privilege on basic principle. Counsel have referred me to authorities for the basic principles governing qualified privilege. The defence protects a defamatory statement made on a privileged occasion. That is, “an occasion where the person who makes a communication has an interest or duty, legal, social or moral, to make it to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it”: Adam v. Ward, [1917] A.C. 309 (H.L.) at p. 334, quoted approvingly in Hill v. Church of Scientology of Toronto at para. 143. Privilege attaches to the occasion. Thus, a defendant’s subjective belief in his or her duty to communicate and in the audience’s duty to receive the information cannot ground the defence: Halls v. Mitchell, [1928] S.C.R. 125. The interest or duty to communicate and the interest or duty to receive the information must be reciprocal: Adam v. Ward above. The defence is based upon public policy or the public interest. “There are occasions upon which, on grounds of public policy and convenience, less compelling than those which give rise to absolute privilege, a person may yet, without incurring liability for defamation, make statements about another which are defamatory and in fact untrue”: Patrick Milmo, Q.C. and W.V.H. Rogers ed., Gatley on Libel and Slander, 9th ed. (Sweet & Maxwell, 1998) at para. 14.1. This passage from Gatley is consistent with Canadian authorities: see for example Jones v. Bennett, [1969] S.C.R. 284 at p. 284; Crandall v. Atlantic School of Theology et al. (1993), 120 N.S.R. (2d) 219 (S.C.) at para. 37; Moises v. Canadian Newspaper Co. (1996), 30 C.C.L.T. (2d) 145 (B.C.C.A.) at para. 17. The reciprocal duties or interests that will found a defence of qualified privilege are those which advance “the common convenience and welfare of society”, to choose the phrase from Jones v. Bennett at p. 284. The courts have recognized categories of qualified privilege but those can never be closed, see for example Moises at para. 18. It is always open to a defendant to show a reciprocity of duties or interests sufficient to raise a public interest in disclosure no matter that the disclosure may turn out to be false and defamatory. Some courts have endorsed factors to be considered in such an assessment: Moises at para. 19, “There are a number of factors which the court must consider when deciding whether or not any given occasion is one of qualified privilege” and this passage quoted with approval at para. 19 of Moises citing Sapiro v. Leader Publishing Co., [1926] 2 W.W.R. 268 (S.C.A.) at p. 271: In determining whether or not it is so privileged, the Judge will consider the alleged libel, who published it, why, and to whom, and under what circumstances. He will also consider the nature of the duty which the defendant claims to discharge, or the interest which he claims to safeguard, the urgency of the occasion, and whether or not he officiously volunteered the information, and determine whether or not what has been published was germane and reasonably appropriate to the occasion. No statement of factors could be exhaustive. It has long been recognized that ascertaining the sufficiency of reciprocal duties or interests to raise the defence involves an inquiry into all of the circumstances: London Association for Protection of Trade v. Greenlands Ltd., [1916] 2 A.C. 15 at p. 23. It was said in Halls v. Mitchell, [1928] S.C.R. 125 at p. 134, “There must, in fact, be such an interest or such a duty as, when all of the circumstances are considered, warranted the communication.” Most usually, the courts have recognized privileged occasions where the audience is limited and has a particular interest in receiving the information. A few examples taken from the discussion in Brown at pages 690 to 720: a report to those who administer a child abuse registry, a report to a union as to why a member was not hired, a report of a private investigator to the client, a report of a former client to a present client concerning a lawyer’s competency, an employer’s report to employees as to why a fellow employee was fired, a parent’s report to school officials concerning a teacher’s ill-treatment of a child, a report to a father concerning a son’s failing grades, a report to directors concerning misconduct of the auditor, a report to a lending institution concerning an applicant for a loan, and a report to an investigatory or disciplinary body. Counsel for the defendants recognize that traditionally the defence of qualified privilege has been constrained where the audience is the public at large, but they say that recent developments in the law have loosened the restraints. Particularly, they refer to Reynolds v. Times Newspapers Ltd., [1999] H.L.J. No. 45 (H.L.). Mr. Reynolds was the Irish Prime Minister. He resigned late in 1994. The Sunday Times ran an article which was “a mixture of allegations of fact, comment and reporting” (para. 91) and which carried the sting “that Mr. Reynolds had lied to and deceived by non-disclosure the Fail and his colleague in government, Mr. Spring” (para. 91). The Times argued for a new and broad application of the defence of qualified privilege. The application of the defence to facts of the case was rejected by the trial judge, the Court of Appeal and the House of Lords. However, against the backdrop of the European Convention for the Protection of Human Rights and Fundamental Freedoms, s. 6(1) of the Human Rights Act 1998 and s. 12(1) of that statute referring to the freedom of expression, the House of Lords recognized that qualified privilege may protect a broad publication where “the public was entitled to know the particular information” (para. 23) and the defamatory publication is justified in the particular circumstances. For Lord Nicholls of Birkenhead, whose judgment two of the other Law Lords endorsed, this involved no change in principles of common law. For him, the common law allowed for a weighing of circumstances in determining whether the test had been met in the case of a “publication to the world at large” and he rejected the proposal of the Court of Appeal, which would have added a separate requirement of circumstantial justification in such cases (see the discussion from para. 16 to para. 23). Lord Nicholls emphasized the requirement that a court must examine all of the circumstances in order to determine whether an occasion was privileged (para. 18), at least in cases not fitting within those categorically recognized. He also remarked that the requirement of reciprocal interests or duties should not obscure the rationale for privilege: The requirement that both the maker of the statement and the recipient must have an interest or duty draws attention to the need to have regard to the position of both parties when deciding whether an occasion is privileged. But this should not be allowed to obscure the rationale of the underlying public interest on which privilege is founded. The essence of this defence lies in the law’s recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the law is concerned to attain. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end. Thus the court has to assess whether, in the public interest, the publication should be protected in the absence of malice. (para. 17) Very much at issue in Reynolds was whether the court should adopt immunity for “political speech” along the lines of New York Times Co. v. Sullivan (1964), 376 U.S. 254 (S.C.). Lord Nicholls said that the crux of the case “lies in identifying the restrictions [upon freedom of expression] which are fairly and reasonably necessary for the protection of reputation”: para. 40. The restriction that denies protection to defamatory statements actuated by malice was sufficient protection for reputation in the case of defamatory statements of opinion (para. 40 and 41), but “With defamatory imputations of fact the position is different and more difficult”: para. 42. Lord Nicholls discussed this “difficult problem” at para. 43 to para. 52 and stated his conclusion at para. 53: My conclusion is that the established common law approach to misstatements of fact remains essentially sound. The common law should not develop ‘political information’ as a new ‘subject-matter’ category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would not provide adequate protection for reputation. Moreover, it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern. The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today’s conditions, to the importance of freedom of expression by the media on all matters of public concern. Lord Nicholls then went on to provide a list of circumstances that might be among those taken into consideration in determining circumstantial justification in cases where media publish defamatory statements. It remains to be seen how publications to the general public by persons other than media will be circumstantially justified in Great Britain, but I do not understand the new approach to be exclusive to the media there. Although Lord Nicholls did not consider this approach to involve any change in the principles of common law, it certainly marks a loosening of the restrained approach the common law has taken in extending qualified privilege to publications to the world at large. Lord Cooke of Thorndon, who would have adopted the position of the Court of Appeal “[s]ubject to the refinement that the circumstantial test should not be treated as something apart form the duty-interest test” (para. 116), had this to say in the course of his judgment: Hitherto the only publications to the world at large to which English courts have been willing to extend qualified privilege at common law have been fair and accurate reports of certain proceedings or findings of legitimate interest to the general public. In Blackshaw v. Lord [1984] Q.B. 1, Templeton v. Jones [1984] 1 N.Z.L.R. 448, and now the present case, the law is being developed to meet the reasonable demands of freedom of speech in a modern democracy, by recognising that there may be a wider privilege dependent on the particular circumstances. (para. 116) Lord Cooke mentions the qualified privilege protecting reports of judicial proceedings as exceptional to a reluctance to apply qualified privilege to publications to the world at large. Brown mentions another exception, but makes much the same observation respecting Canadian Law: With the exception of exchanges between parties who have both chosen a newspaper to air their differences, seldom will communications through the press or other public communications media satisfy the requirement that there be reciprocal duties and interests between the parties who disclose the information and those who receive it. [p. 866] Mr. George Jones was Chairman of a provincial commission in British Columbia. The premier was Mr. W.A.C. Bennett. Charges were laid against Mr. Jones that he had been unlawfully accepting benefits. He was acquitted, but the government introduced a bill to remove him from office. At a meeting of his Social Credit Party, the premier gave a speech on many subjects including a brief reference to Mr. Jones: “I could say a lot, but let me just assure you of this; the position taken by the government is the right position.” There were two reporters sitting at a table reserved for the press. The remark was reported in the press. Jones sued Bennett. The premier set up qualified privilege as one of his defences. The trial judge found for the plaintiff. The Court of Appeal decided the occasion was privileged. The Supreme Court of Canada disagreed. The decision of the court was written by Chief Justice Cartwright: Jones v. Bennett, [1969] S.C.R. 277. There is a qualified privilege that may apply when a candidate for political office reports to electors concerning an opposed candidate. The court refused to endorse an extension of the privilege to occasions where an elected official reports to electors between elections. It is “perfectly proper” to make such reports, but the court was not prepared to protect the speaker who “sees fit to make defamatory statements about another which are in fact untrue”: p. 284. It was “difficult to see why the common convenience and welfare of society requires that such statements should be protected”: p. 284. Although the court expressed reluctance to apply qualified privilege on such occasions, that was not the basis of its decision. The qualified privilege protecting a report made by a candidate to electors is lost if the publication is made through a newspaper: Douglas v. Tucker, [1952] 1 S.C.R. 275. In Jones v. Bennett, the court said that even if there were a qualified privilege protecting an elected official’s report to electors between elections, the privilege would have been lost by reason of the presence of reporters. The court said, ... it must be regarded as settled that a plea of privilege based on a ground of the sort relied on in the case at bar cannot be upheld where the words complained of are published to the public generally or, as it is sometimes expressed, “to the world.” [p. 289 - 285] The court went on to distinguish the situation where parties choose to air their differences in public media. The defendants argue that Canadian authorities, as well as the decision of the House of Lords in Reynolds, have moved away from the confined approach of Jones v. Bennett. In Stopforth v. Goyer (1979), 97 D.L.R. (3d) 369 (O.C.A.) the Minister of Supply and Services had commented to media about “misinformation or gross negligence” in connection with the work of a senior civil servant who had been demoted. The Ontario Court of Appeal recognized the interest the electorate had in knowing the reasons for the demotion and the duty the Minister had to satisfy the electorate, and it found a qualified privilege on the basis of reciprocal duties or interests. In Camporese v. Parton (1983), 150 D.L.R. (3d) 208 (B.C.S.C.) qualified privilege protected a newspaper report about canning lids that were alleged to allow toxic spores to enter the jars. In Parlett v. Robinson (1986), 30 D.L.R. (4th) 247 (B.C.C.A.) a member of Parliament having responsibility to criticize the Solicitor-General on behalf of the New Democratic Party had called in the House for a public inquiry into the conduct of a senior official involved with corrections. When that effort failed, Mr. Robinson organized a press conference at which he said the official had attempted to re-sell violin chin-rests made by prisoners but not for re-sale. A defence of justification was made out for that statement. However, Mr. Robinson had also said the plaintiff had actually re-sold the chin-rests, made profit on the re-sales, abused his position and exploited inmate labour. Those statements were not justified. The British Columbia Court of Appeal found that the Member of Parliament was under a duty as “the official spokesperson for his party on the Ministry of the Solicitor-General” (p. 256), such that: When he failed to persuade the Minister to order the inquiry, if he held an honest belief that there had been impropriety within the Correctional Service with respect to taking advantage of the work of inmates, then it was the duty of the defendant to ventilate his concerns in a way that would persuade the Minister to have an investigation conducted into the matter. [p. 256] The Court was also of the view that the electorate had an interest in receiving the information: In addition to the duty of the defendant to declare his concern in this matter, it appears to me that the electorate in Canada have an interest in knowing whether the administration of the Correctional Service is being properly conducted by the officials in the Department of the Solicitor-General. [p. 256] The reciprocity of Mr. Robinson’s duties and the electorate’s interests was not explicitly explored. Rather, the court turned to the issue “... whether or not the publication was too broad in the circumstances” (p.256). It distinguished Jones v. Bennett on the ground that Premier Bennett had been under no duty to communicate concerns he had about Mr. Jones to anyone: p. 257. Publication to the media was not too broad in the case of Mr. Robinson because the electorate of Canada had an interest in the matter: p. 260. In Parsons v. Windsor Star et al. (1989), 71 O.R. (2d) 5 (O.H.C.), the defendant made a complaint under the Police Act, R.S.O. 1980, c. 381, alleging drunkenness and racism on the part of the plaintiff. When the complaint was dismissed, the defendant repeated his allegations to numerous parties including newspapers. Chadwick, J. said at p. 23: Having decided to leave the sanctity of the charges under the Police Act, he proceeded to publish and speak the defamatory words to anyone who would listen. As a result, he lost any qualified privilege that may have been available. The defendant’s argument for qualified privilege in that case is difficult to follow. The element of public interest was accepted: “The public certainly has an interest in finding out whether its police officers are drunk on duty and are racists” (p. 22). However, the argument for reciprocal duties or interests seems to have gone only to the initial filing of the complaint, which had “afforded the complainant the defence of absolute privilege” but had been lost on account of the broad publication (p. 22). In Baumann v. Turner (1993), 105 D.L.R. (4th) 37 (B.C.C.A.) the Mayor of Squamish allowed a letter of his to be given to a reporter. It suggested that Mr. Baumann, a geological engineer who had become involved in a debate concerning the choice of a new source for water, had violated the ethical standards of his profession. The trial judge allowed a defence of qualified privilege. At para. 90 Legg, J.A. with Toy, J.A. concurring (Southin, J.A. dissenting) said, “The decision in Parlett v. Robinson states a qualification to the principle stated in Jones v. Bennett that a qualified privilege cannot be upheld where there is a publication to the public of the words complained of.” and he concluded that the mayor’s publication fell within the qualification because the mayor’s letter had been in response to correspondence already made public and the correspondence was on a subject of public interest. The British Columbia Court of Appeal considered broad publication and a defence of qualified privilege again in 1996. Mr. Francisco Moises was a refugee from Mozambique, which has suffered a very bloody civil war these past two decades. Apparently his status as a refugee was under investigation. He had official status in the Renamo, the anti-government faction in the civil war. The Times-Colonist ran a series of articles questioning Mr. Moises’ refugee status and the diligence of the Department. In one headline the newspaper chose to describe Mr. Moises as a “terrorist official living in Victoria.” He sued. The trial judge found the article was published on a privileged occasion. The British Columbia Court of Appeal disagreed and it ordered a new trial: Moises v. Canadian Newspaper Co. (1996), 30 C.C.L.T. (2d) 145 (B.C.C.A.). Writing for the court, Williams, J.A. referred to the passage I have quoted from Jones v. Bennett, then said “Nevertheless, there are several decisions of this Court which make it clear that the principle enunciated in Jones is not absolute”: (para. 24). Justice Williams was of the opinion that a private citizen could not have been protected by privilege had the citizen broadcast that “Francisco Nota Moises is a terrorist official.” and a newspaper could not be in any better position (para. 31). He concluded: I am not satisfied that, even if the public had a legitimate interest in receiving the information concerning Moises, the Times-Colonist was under a duty to publish the impugned article. This was not, after all, a situation where either Moises or Renamo presented any threat to Canada, or to anyone in Victoria. Although the decision does not tell us exactly what remains of Jones v. Bennett in British Columbia, this passage suggests that the British Columbia Court of Appeal is particularly mindful of the necessity or lack of necessity in going public with allegations as a factor in determining whether publication to the world at large may involve a sufficient duty on the part of the publisher. That same theme is apparent in Parlett v. Robinson, where going to the public may not have been M.P. Robinson’s only resort but it was a resort commented upon by the court in light of his failed attempts to exercise his critic’s duty by other means. Further, both decisions speak of the publisher’s duty rather than duty or interest. Indeed, Parlett v. Robinson goes so far as to distinguish Jones v. Bennett on the ground that Premier Bennett had no duty to speak to anyone and reciprocal interests was not discussed. However, the British Columbia Supreme Court has suggested that broad publication is no longer the basis of an argument against qualified privilege. In Re International Association of Bridge, Structural and Ornamental and Reinforcing Ironworkers (Local 97) et al. (1997), 152 D.L.R. (4th) 547 (B.C.S.C.), the Liberal Party of British Columbia, which formed the opposition, had issued a press release questioning the size of contributions to funds administered by a union with which the Premier had had connections. The phrase “kick back” was used. The court found the occasion to have been privileged. Any member of the official opposition has a duty to expose impropriety in the management of government monies and the electorate has a corresponding interest in receiving such information: p. 557. After referring to Parlett v. Robinson, the British Columbia Supreme Court went so far as to say at p. 556, “The ‘too broad’ argument has since been rejected repeatedly and no longer has application.” In Silva v. Toronto Star Newspapers Ltd. et al. (1998), 167 D.L.R. (4th) 554 (O. Gen. Div.), a newspaper successfully set up a defence of qualified privilege in reference to an investigative article concerning a public housing project where conditions were unsatisfactory and tenants lived in fear. The article gave them a needed voice (p. 574). One of the two major issues raised in Hill v. Church of Scientology concerned “the constitutionality of the common law action for defamation” (para. 62). The appellants argued that the principles of the common law must be interpreted in a manner consistent with the Charter, and this would be accomplished only by moving to the American position as determined in Sullivan. (Note that both Reynolds and Sullivan concerned press publications about politicians, and both Hill and the case at hand concerned publication to the press about public officials who were not politicians.) Justice Cory discussed the case law on the relationship between the Charter and the common law starting with RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573. This contrasts with the various and sometimes tentative approaches found in the Reynolds speeches. Little experience has yet been had in England with the question of constitutional limits on common law. At para. 95 Justice Cory drew a distinction between Charter rights and Charter values, the former having no application in private law not involving government action. Caution is prescribed. The Charter cannot expand beyond s. 32(1) and the Charter “will ‘apply’ to the common law only to the extent that the common law is found to be inconsistent with Charter values” (para. 95). The courts will remain cautious to alter the common law and “far-reaching changes to the common law must be left to the legislature” (para. 96). This caution contrasts with the speeches of Lord Cooke and Lord Steyn in Reynolds. At para. 97, Cory J. rejected a s. 1 justification as an appropriate response to a conflict between Charter values and the common law. This conflicts with para. 63 of the speech of Lord Steyn in Reynolds. At para. 98, Cory J. makes it clear that the onus in a Charter rights case is not the onus where one seeks to challenge the common law for inconsistency with Charter values, the onus does not shift at the justification stage. This seems to conflict with para. 84 of the speech of Lord Steyn in Reynolds. After discussing the freedom of expression and the protection of a good reputation, which, although not expressly recognized in the Charter, remains “of fundamental importance to our democratic society” (para. 120), Cory J. turned to the decision in Sullivan and to various criticisms of it. As with the Law Lords in Reynolds, Cory J. was not prepared to follow Sullivan. He gave three reasons for refusing to alter the common law of defamation, at least “in its application to the parties in this action” (para. 14). The case did not involve political commentary about government policies (para. 139). Secondly, jury verdicts were not affecting the viability of media organizations (para. 140). And, Finally, in Canada there is no broad privilege accorded to the public statements of government officials which needs to be counterbalanced by a similar right for private individuals. (para. 140) This final point tends to debunk the argument that decisions such as that of the Ontario Court of Appeal in Stopforth v. Goyer in 1979 and of the British Columbia Court of Appeal in Parlett v. Robinson in 1986 represent a new departure towards protecting commentary by politicians upon conduct of unelected public officials. I am not suggesting that Hill v. Church of Scientology decides the present issue. Nor am I suggesting it necessarily conflicts with Reynolds v. Times Newspapers. After all, the speech of Lord Nicholls began with “My Lords, this appeal concerns the interaction between two fundamental rights: freedom of expression and protection of reputation,” and he discussed expression and reputation in terms similar to those of Cory J. at para. 37 to 39. In principle, Lord Nicholls’ conclusion is the same as that of Cory J.: “... the established common law approach to misstatements of fact remains essentially sound” (para. 53). Further, as Lord Nicholls observes, Hill v. Church of Scientology “did not concern political discussion” and “The Supreme Court has not had occasion to consider this issue in relation to political discussion.” (para. 30). However, I read Reynolds as setting a new approach to publications for the world at large, an approach markedly different from that of Jones v. Bennett. I am bound by Jones v. Bennett. The Court of Appeal in this province has not, to my knowledge, protected such a broad publication as we see here by bringing anything like it within the shield of qualified privilege. Thus, I do not have the liberty to say, with the British Columbia Supreme Court, that the ‘too broad’ argument no longer has application. Further, the integral importance of an individual’s reputation as explained in Hill v. Church of Scientology suggests to me continued restraint where privilege is claimed over a defamatory statement made to the world at large. I do not understand Jones v. Bennett to have shut the door on qualified privilege where duty is so strong, interest so compelling and circumstances so justified that the public should be told even if the information may turn out to be defamatory and untrue. The decision shut that door for “a plea of privilege based on a ground of the sort relied on in the case at bar.” That indicates a high standard where privilege is sought for a broad publication, but it does not rule out a plea of privilege based on grounds different from those at issue in Jones v. Bennett. In my opinion, Canadian law recognizes that publication to the world at large is a factor indicating strongly against qualified privilege, but not necessarily defeating application of the defence. Where the defendants assert it on broad principles rather than upon one of the recognized categories, I must, I believe, consider the factor referred to in Sapiro, “to whom” the publication was made, as weighing heavily against the sufficiency of reciprocal duties or interests where the publication was to the world at large, but I must still consider the other factors mentioned in Sapiro and the circumstances as a whole in determining sufficiency. By sufficiency I mean whether the reciprocal duties or interests “warranted the communication” (Halls v. Mitchell, p. 134) or whether the “[public] interest is of sufficient importance to outweigh the need to protect reputation” (Reynolds, para. 10). The defendants argue a broad duty to speak up in protection of those unable to protect themselves. I have been referred to this passage from Brown at para. 13.6(2)(a): There is a qualified privilege to publish information for the protection of persons other than the speaker or writer. “To protect those who are not able to protect themselves is a duty which every one owes to society,” and there is a general obligation “to do what is for the good of society.” The communication may touch upon someone’s character, competence, behaviour, solvency, or person and professional integrity. “Such communications, when honestly made, are protected for the common convenience and welfare of society.” The defendants argue that the duty to protect vulnerable individuals is heightened in the case of lawyers who seek improvements in the administration of justice. The rule is stated this way in Chapter 21 of Legal Ethics and Professional Conduct, A Handbook for Lawyers in Nova Scotia (Nova Scotia Barristers’ Society, 1990) at p. 93: “The lawyer has a duty to encourage public respect for justice and uphold and try to improve the administration of justice.” The principles underlying the rule are discussed in these terms: The lawyer, by training, opportunity and experience, is in a position to observe the workings and discover the strengths and weaknesses of laws, legal institutions and public authorities. The lawyer, therefore, has a duty to provide leadership in seeking improvements to the legal system. Any criticisms and proposals the lawyer makes in doing so should be bona fide and reasoned. In discharging this duty, the lawyer should not be involved in violence or injury to the person. (p. 93) And the defendants also referred me to this passage from the commentary on the rule: The lawyer has a duty not to weaken or destroy public confidence in legal institutions or authorities by broad, irresponsible allegations of corruption or partiality. The lawyer in public life must be particularly careful in this regard because the mere fact of being a lawyer lends weight and credibility to any public statements. For the same reason the lawyer should not hesitate to speak out against an injustice. (p. 94) A similar statement of the rule and similar comments may be found in Code of Professional Conduct (Canadian Bar Association, 1974) at p. 48. The passage quoted above from Brown respecting a duty to protect the vulnerable is not concerned with publications to the public at large. The decisions to which Brown refers involve reports to individuals or organizations with a particular interest in the information or having a duty to act upon it. This is made clear by Brown in para. 13.6(2)(b) titled “To Whom the Communication May Be Made”: The communication need not be made directly to the person whose interest are being served. However, the information must be given either to that person, or to someone who is authorized to act on his or her behalf, or to a third person who has some clear legal, social or moral duty to the person about whom the defamatory information is sought or disclosed, or who has an interest in receiving the information in order to vindicate or protect the interests of the person on whose behalf the communication was made. In my opinion, the passages in Brown on this subject do not support the position taken by the defendants. The reciprocity of duties or interests is far narrower in the situations to which Brown is referring than would be the case with a privilege of the kind argued for by the defendants. In my opinion, Chapter 21 of the Legal Ethics Handbook is not an adequate basis upon which to found a duty supporting a privilege protecting public criticism aimed at improving the administration of justice. In various ways, Chapter 21 creates a dichotomy for lawyers. One must not only “try to improve the administration of justice.” One must also “uphold...the administration of justice.” The rule is premised on a knowledge of “the strengths and weaknesses of laws, legal institutions and public authorities,” but the exercise of the duty to seek improvements in the administration of justice must not involve “injury to the person.” Thus, the dichotomy is especially apparent where a lawyer seeks to improve the administration of justice by publically criticizing the conduct of a public officer. The criticism needs to be based on true facts. Otherwise, the lawyer fails to uphold the administration of justice and, if the criticism harms reputation, the lawyer causes personal injury. The discussion in Chapter 21 is more consonant with the defence of fair comment than it is suggestive of a duty so clear as to license defamation through qualified privilege. According to the defendants, the press conference was called to raise with the public systemic issues respecting the manner in which the state deals with vulnerable individuals; the young, the poor and persons of African heritage. According to the defendants, the goal was to improve the administration of justice in regard to such dealings. Certainly, those positions are supported by what was said by the defendants at the press conference and by what they said on the stand. No right thinking person could deny a duty to speak about and a public interest in hearing about police misconduct involving the mistreatment of individuals because of their youth, poverty or Black heritage. Particularly the latter in this province where, as everyone knows, the long history of African Nova Scotians involves the sufferings of racism, overt and unconscious, individualistic and systemic, in the past and in the present. I accept that public exposure is an effective tool for combatting systemic racism. I base that upon the testimony of the experts in this case and upon common sense. I agree that combatting racism is properly among the duties or interests of any citizen and that the public interest is served by combatting racism. Of course, the identification of these reciprocal duties or interests is not sufficient. The authorities make it clear that there must be such a duty or such an interest as, in all of the circumstances, warranted the communication. Mindful of the reluctance of the courts to shield broad communications with privilege and mindful of the rationale for providing that shield in some circumstances, “the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source” (Reynolds, para. 17), I am not satisfied that the defendants were warranted in providing media with the information communicated at the press conference. I do not think that the question of reciprocal interests or duties can be answered only by reference to the goals of which the defendants spoke. The goals of the press conference cannot be separated from the instance which gave rise to it: the conduct of the plaintiff at the school that day in March 1995. Facts as relayed by the clients were laid out in detail for the media and it was said to the media and, through them, to the public that race was a factor in Constable Campbell’s behaviour. So long as the facts were stated in substance and were substantially true and so long as the concerns about race and poverty were stated as opinion, Mr. Jones and Ms. Derrick would have had the defence of fair comment available to them. The additional defence of qualified privilege would protect them where there was a need to lay their clients’ versions of the facts before the public and to call public attention to the consequential concerns about race and status, even though the versions related by the clients may have turned out to be untrue and defamatory. That need had not yet arisen. The clients had initiated a process that would lead immediately to an investigation and that process could have led to a public hearing and judicial determination of the facts. I do not see the need for having gone to the public before the process of investigation and determination had even begun. While I agree that “the nature of the duty which the defendant claims to discharge” (Sapiro, p. 271) is a weighty one, “the alleged libel” (Sapiro, p. 271) and slanders were also very serious. In my assessment the latter consideration coupled with the official fact-finding processes instituted by the defendants for their clients, the lack of urgency and the publication to the world at large before the investigative processes had even begun are such that the communications were not warranted at the time they were made, and the public interest in the scrutiny of police behaviour on matters of race had not yet, at the time of the press conference, been engaged sufficiently to outweigh protection of reputation. Malice. The plaintiff pleaded actual malice on the part of the defendants as an answer to the defence of qualified privilege, as an answer to the defence of fair comment and in support of a claim for aggravated damages. After hearing arguments when the evidence had concluded, I announced my conclusion that there was insufficient evidence for the issue of malice to be left to the jury. I said I would provide my reasons later. The law respecting actual malice and its relationship to the defences and the claim for aggravated damages was reviewed by Stewart J. and by the Nova Scotia Court of Appeal in Hiltz and Seamone Company Ltd. v. Nova Scotia (Attorney-General) (1997), 164 N.S.R. (2d) 161 (S.C.) and (1999), 173 N.S.R. (2d0 341 (C.A.). In short, a finding of actual malice will defeat a defence of qualified privilege or a defence of fair comment, and a finding of actual malice is necessary to an award of aggravated damages. The common law distinguished malice which is presumed where there is defamation and malice which will defeat a defence of qualified privilege: see Davies & Davies Ltd. v. Knott, [1979] 2 S.C.R. 686 at p. 694, Brown at para. 16.2(2) and Gatley at para. 16.1. There is a presumption of malice in the making of a defamatory statement, sometimes referred to as “legal malice”: Brown, para. 16.2(1). Legal malice is not open to rebuttal, it arises by operation of law and Brown regards it as a “legal fiction.” Qualified privilege displaces the presumption of legal malice. The privilege “creates a presumption against malice”: Davies & Davies Ltd., p. 694. That presumption is open to rebuttal by the plaintiff. The plaintiff must establish “malice in fact, actual malice, or express malice which goes beyond the malice ordinarily presumed upon the mere publication of libellous words”: Davies & Davies Ltd., p. 694. Most usually, actual malice is established by showing ill-will or animosity of the defendant toward the plaintiff: Botiuk v. Toronto Free Press Publications, [1995] 3 S.C.R. 3 at para. 79. However, malice has a broader meaning than that: para. 82 of the Nova Scotia Court of Appeal decision in Hiltz and Seamone Company. Horrocks v. Lowe, [1995] A.C. 135 (H.L.) recognized that actual malice could be established where the defendant did not believe in the truth of the publication or where the defendant was reckless as to its truth. Writing for the Court in Botiuk, Cory J. endorsed, at para. 98, the following passage from p.150 of Horrocks v. Lowe as appearing to be “generally representative of the Canadian position”: ... what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, “honest belief”. If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true... But despite the imperfection of the mental process by which the belief is arrived at it may still be “honest”, that is, a positive belief that the conclusions they have reached are true. The law demands no more. However, Justice Cory went on to point out that the defendants in Botiuk were lawyers, and that factual aspect of the case led to a particular assessment of recklessness amounting to malice. Again at para. 98: This proposition does indeed seem to be generally representative of the Canadian position on the matter. However, when the defendants are lawyers who must be presumed to be reasonably familiar with both the law of libel and the consequences flowing from the signing of a document, their actions will be more closely scrutinized than would those of a lay person. That is to say, actions which might be characterized as careless behaviour in a lay person could well become reckless behaviour in a lawyer with all the resulting legal consequences of reckless behaviour. That is the very situation presented in this case. This is where the plaintiff primarily focuses her argument for a finding of actual malice. The judge must decide whether there is sufficient evidence upon which a jury may find actual malice. As to malice defeating a defence of qualified privilege, the authorities have expressed a standard that appears to be more stringent than that normally applicable when a judge has the responsibility to determine whether a question should go to the jury. The standard has often been expressed in terms of evidence which raises a probability of malice, as opposed to the ordinary test of evidence upon which a jury, properly instructed and acting reasonably, could reach a finding in favour of the proponent. The plaintiff was content for me to be guided by the more stringent standard in deciding whether malice as pleaded against the defence of fair comment and in favour of aggravated damages should be left to the jury. Of the defendants, Ms. Derrick’s counsel spoke firstly on the issue of leaving malice to the jury. To their credit, Ms. Derrick through counsel raised well grounded concerns as to whether the standard formulated in reference to qualified privilege applies in reference to fair comment or aggravated damages. The question became the more acute when I concluded that the defence of qualified privilege was not available to the defendants. The standard was authoritatively settled in reference to qualified privilege by Davies & Davies Limited, cited above. Writing for the Court, Justice McIntyre said, at p. 694: Where words are spoken on occasion of qualified privilege, the question of malice should not be put to the jury unless the trial judge is of the opinion that the evidence adduced raises a probability of its existence. Justice McIntyre referred to English authorities showing a longstanding formulation of the standard in the same kind of language. Of these, Gatley suggests the formulation is not necessarily different from the standard for determining whether any issue proposed to go to the jury is supported by sufficient evidence: Gatley, para. 34.18 including footnote 78. I think the standard is expressly more stringent. In any case, Justice McIntyre made it clear that the passage just quoted is a modification upon the ordinary standard. Immediately before those words he wrote: Ordinarily a judge sitting with a jury is not concerned with the weight of evidence. If he concludes that there has been adduced admissible evidence going in proof of the fact in issue, he must leave it to the jury. It is then the function of the jury upon weighing the evidence to accord it such effect as it may consider appropriate. This rule while one of general utility must be modified in a case of this kind. The trial judge in Davies & Davies had been wrong in leaving the question of malice to the jury on the ground “that there was some evidence of malice” (p. 686-697). Having followed that standard “... he was applying the wrong test. The question for his determination was whether there was sufficient evidence to raise a probability of malice.” (p. 697). Of course, this formulation of the standard does not mean that the judge weighs all of the evidence and determines whether malice has been established on a balance of probabilities. For example, significant evidence showing the defendant was not acting on malice would not be germane to the judge’s inquiry. On the contrary, each piece of evidence must be regarded separately, and, even if there is a number of instances where a favourable attitude is shown, one case tending to establish malice would be sufficient evidence on which a jury could find for the plaintiff. (Turner v. M-G-M Pictures, Ltd., [1950] 1 All E.R. 449 (H.L.) at p. 455 as quoted in Davies & Davies Ltd. at p. 696) That is, One piece of evidence may be sufficient provided that it is by itself of sufficient weight to raise a probability of the existence of malice. (Davies & Davies Ltd., p. 696) This more stringent threshold than the ordinary would have governed my assessment of malice in reference to qualified privilege had I concluded that that defence was available to the defendants. In any case, I had to decide whether the standard was applicable to the question of leaving malice to the jury in reference to fair comment and aggravated damages. Thankful to the defendants’ counsel for pointing out the uncertainties, I nevertheless concluded that the same standard applies. Counsel were unable to furnish me with authority directly on point to the difficult issue raised by Mr. Outhouse. He warned that all of the authorities concerning the more stringent standard were cases respecting malice pleaded against a qualified privilege. He pointed out that Brown deals with the more stringent standard strictly in reference to qualified privilege (para. 16.7) and, in reference to fair comment Brown says, “It is also entirely for the jury to determine...whether the defendant was actuated by malice” (para. 15.8), citing Ray v. Corbett (1883), 16 N.S.W. 407 (C.A.). Gatley treats the question of leaving malice to the jury as a single issue without distinction between qualified privilege and fair comment (para. 34.18), but, as I said, the learned authors regard the standard to be the same as with the ordinary test for leaving issues to juries. Further, it is pointed out that the rationale for the more stringent standard is tied to the presumption against malice which arises with qualified privilege: see Davies & Davies Ltd., p. 694. Fair comment relates to freedom of expression on matters of public interest rather than a presumption of good faith based on sufficient duty or interest. Indeed, at one time it was thought by some that malice was irrelevant to fair comment: see Gatley, para. 16.2. It would be more pragmatic if distinctions were not made in the standard for deciding whether malice goes to the jury in answer to qualified privilege, to defeat fair comment or to support aggravated damages. Defamation cases often involve the trial judge in determining numerous issues at the conclusion of the evidence, making difficult decisions respecting instruction, and preparing instructions in what can be a complex field of law. These tasks are performed under a responsibility to proceed with haste and a responsibility to instruct with as much clarity as possible. Differing standards for leaving malice to the jury complicates the task wherever qualified privilege, fair comment and aggravated damages are pleaded. This is a small and merely pragmatic reason for rejecting the distinction, and it should have no weight if distinction would produce just results, but if the distinction is not needed then it should not be. I do not see that the distinction is either mandated by law or required by reason. While the presumption was recognized as the reason for the more stringent standard where the threshold pertains to qualified privilege, that is not an adequate reason for a different threshold where the question of malice goes to fair comment. In my opinion, a distinction should only be drawn if there is some reason for greater stringency with qualified privilege than with fair comment. None appears to me. The public interest in fostering candid communications where sufficient duties or interests exist is of no greater importance than the freedom of expression which is protected by fair comment. In the absence of compelling authority to the contrary, I would apply the same test whether malice goes to qualified privilege, fair comment or both. No such authority appears. As regards aggravated damages, the question of applying a lower threshold for leaving the question of malice to the jury might be answered by taking a close look at Hill v. Church of Scientology, which established the need for a finding of actual malice. The requirement is stated at para. 190, where Cory, J. follows decisions of the Ontario Court of Appeal, the British Columbia Supreme Court and the English Court of Appeal, and states:”If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice.” There is no discussion of actual malice in the context of aggravated damages which would distinguish it from actual malice in the context of qualified privilege, the subject of para. 144 and 145 of the decision. The decision in Hill v. Church of Scientology was followed, less than five months later, by Botiuk v. Toronto Free Press Publications Limited. Malice for the purposes of aggravated damages was discussed in light of authorities concerning malice as would defeat qualified privilege: para. 94 to 103. They are spoken of as if treated as one and the same. In the absence of authority to the contrary, I think they should be treated as one and the same as regards the threshold for leaving the question of actual malice to the jury. The evidence in this case did not, on my assessment, raise a probability of malice in any instance or instances. There was nothing to suggest personal animosity. Indeed, testimony both of the plaintiff and of the defendants demonstrated the contrary. The plaintiff sought to put it to the jury that the defendants had acted so recklessly as would amount to actual malice, and the plaintiff’s primary argument for the threshold focused on that point. The conduct of the defendant lawyers in this case was much different than that of the defendant lawyers in Botiuk. Mr. Jones and Ms. Derrick were in possession of substantial evidence upon which they founded their assertion of fact that the three young girls had been subject to a strip search and, if true, that, in conjunction with other factual assertions made at the time of the press conference, many of which are not in contest, could have well founded comment to the effect that race and status were factors and white girls in a more affluent neighbourhood school would not have been treated alike. The lawyers had the reports of three out of four witnesses to what happened within the guidance room that day. While they did not have the information of the opposite party, Constable Campbell, they did have some information from which they could reasonably have inferred something of her version. Mr. Jones was instructed by the mothers of the two girls he represented. One of them had already divulged to the press a telephone conversation in which Constable Campbell was said to have apologized and to have made other remarks suggesting she was conscious of serious misconduct towards the girls. Both mothers testified at trial and if their versions of telephone calls placed by Constable Campbell were accepted, then it would appear she had been conscious of serious misconduct. In addition to information provided by the two mothers, Mr. Jones and Ms. Derrick were aware that the girls’ allegations of a strip search had been widely reported in the media without any response from the police department. There had been indications that a complaint may be laid, from which lawyers in the position of Mr. Jones and Ms. Derrick should have taken that Constable Campbell and the department were waiting for a formal statement. However, the facts that serious allegations had been made and the department had not even stated that the officer’s version would await formal complaint lend some circumstantial credit to the other information the lawyers had received. While the lawyers took the risk that the information they acted upon may turn out to be untrue, and thus took the risk the information would not afford a basis for defence of fair comment, the information was sufficiently extensive that I do not believe the publication of it and of the comments raise a probability of carelessness amounting, with lawyers, to recklessness. The defendants testified that they did not believe Carol Campbell to be a racist or to be motivated in the conduct of her duties by racism or improper attitudes towards poor people. The plaintiff alleged that these were the implications of the comments made concerning race and status. It was argued that this brought the case within the authorities which hold where the defendant does not believe in the defamatory statement such will almost always amount to actual malice, which authorities I have already discussed. In the circumstances of this case, such an axiomatic finding of malice would put the defence of fair comment on its head. The asserted implications were pleaded as innuendo. The defendants denied the innuendo, both in their pleading and in their testimony. With the assistance of expert evidence, they drew a distinction between overt racism and other forms. The defendants testified to the effect that, subjectively, their remarks were not intended to suggest overt racism on the part of Constable Campbell. The jury was required to assess innuendo from an objective perspective for the purpose of determining whether a defamation had occurred and determining the extent of any defamation. In my opinion, the assessment of malice has to concentrate on what the defendants actually said and what they subjectively intended. On the whole, their disavowal of pleaded innuendos did not give rise to a probability of malice. It was also argued on behalf of the plaintiff that the defendants’ actions after the press conference were indicative of malice. In Botiuk at para. 101 it was said that conduct before and during trial is not determinative of malice but it can properly be taken into consideration as indicating the attitude of the defendants towards the plaintiff. The circumstances mentioned by Justice Cory included failing to make an apology, continuing to maintain the plaintiff was wrong even as the truth revealed otherwise, manifest hostility towards the plaintiff during examination and failing to give the plaintiff credit for his achievements. As I said, the facts of the case at hand differ much from those in Botiuk. Here the evidence does not suggest personal animosity. The subjects relied upon by the plaintiff as indicative of an attitude consistent with malice augment the plaintiff’s charge of recklessness. These subjects include the failure to make an apology, the course of the complaint after the press conference and cross-examination of the plaintiff during trial. The first demand for an apology came shortly after the press conference in the form of a letter signed by Ms. Campbell’s lawyer. It made no mention of the strip search allegation and did not advise that Constable Campbell disputed that allegation. The letter asserted the innuendo later pleaded by Constable Campbell and demanded a retraction. None was forthcoming. This is concerning in light of the defendants’ testimony at trial that they had not implied racism and that they found the newspaper headlines and television introductions referring to racism to have gone beyond what had been alleged. That being the case, one would expect professionals in the position of Mr. Jones and Ms. Derrick to have at least issued a clarification. Another demand was made later by plaintiff’s counsel, this one referring to both the strip search allegation and the statements respecting race and poverty. No apology was made. As regards the course of the complaint, the defendants’ clients sought review of the internal process, which did not lead to any disciplinary finding in respect of race or socio/economic status. Just before the Review Board was to conduct a public hearing, the parties, including the clients, Constable Campbell and the Halifax police department, settled on terms that did not involve any provision related to police treatment of individuals on grounds of race or poverty. Mr. Jones and Ms. Derrick represented the clients throughout. It is obvious that the complaint process progressed and the settlement agreement was achieved conscious of this action and another, which has been brought by the three young women for the violation of their constitutional rights. That being the context, I do not believe significant implications can be taken from the course of the Police Act complaints. Finally, it was not my assessment that the defendants conducted an unduly harsh cross-examination or otherwise treated the plaintiff with hostility through the course of the trial. On the contrary, the defences were conducted vigorously but professionally in a manner inconsistent with a finding of malice. Prejudgment Interest. By s. 41(i) of the Judicative Act, R.S.N.S. 1989, c. 240, a successful plaintiff is entitled to interest on damages “for the period between the date when the cause of action arose and the date of judgment.” Rate of interest is discretionary: “at such rate as it [the court] thinks fit.” The court has discretion to decline to order prejudgment interest, to reduce the rate or to reduce the period over which interest is calculated in some circumstances including where “the claimant has not during the whole of the prejudgment period been deprived of the use of money now being awarded” and where “the claimant has been responsible for undue delay in the litigation”: s. 41(k)(ii) and (iii). The plaintiff submits for interest at 4.6% calculated since April 1, 1995 on $225,500, the jury award less a contribution paid by former defendants. The defendants submit for 2.5% over three years. The plaintiff has provided reference to the monthly Bank of Canada rates for treasury bills and a calculation showing these average 4.6% over the period since the cause first arose. I would think that rate to be “fit” if this were a case for applying a commercial rate of interest. The defendants refer to Bush v. Air Canada(1992), 109 N.S.R. (2d) 91 (S.C., A.D.) and to Hiltz and Seamone Co. v. N.S., supra, in support of their submission that the rate should be reduced to back-out the portion of commercial rates that covers inflation. I agree with the defendants’ submission. Bush v. Air Canada concerned the rate of interest on nonpecuniary damages arising from an injury. The plaintiff suffered from chronic myofascial pain and coccydynia. The trial judge awarded $20,000 for nonpecuniary damages and he allowed interest on that sum at a commercial rate. The Court of Appeal considered two lines of conflicting authorities and accepted the line represented by decisions of the British Columbia Court of Appeal. Writing for the Nova Scotia Court of Appeal, Chipman, J.A. observed the loss is “valued as of the date of trial” (para. 57), such that the application of a commercial rate of interest to the award may cause a double recovery: “If it is a rate with an inflationary component, the result is that in theory at least, the plaintiff is compensated twice for inflation” (para. 58). At para. 60, Chipman, J.A. stated, “A double recovery should be avoided in the exercise of a trial judge’s discretion under s. 41(i) and (k) of the Judicative Act...” and establishing a rate for prejudgment interest on such awards “requires an examination of the award to determine whether inflation from the date the cause of action arose has been taken into account.” In that regard, he made further comments: Judges should take particular care in cases where a long period of time has elapsed between the time the cause of action arose and the assessment of damages. It is in these cases where one can more often say with confidence that the award has grown by inflation from what it would have been at the time from which interest starts to run. In many cases, a judge may not be able to say with any degree of certainty that an inflation factor has been built into the award. In these cases...a commercial rate of interest would be appropriate. Where, however, a judge is satisfied that inflation has been built in, a rate such as the discount rate of 2.5% per annum is appropriate. If the trial judge does not do this, a double recovery results to the plaintiff. An injustice is therefore done which requires interference by an appeal court with such an exercise of discretion. (para. 60) In the specifics of that case, the Court of Appeal was unable to conclude that the award took account of inflation and the commercial rule for prejudgment interest went undisturbed. Hiltz and Seamone Co. was a case of defamation tried by a judge without a jury. Justice Stewart questioned whether Bush v. Air Canada should apply to reduce the rate of prejudgment interest on her award of damages for harm to reputation, but she declined to decide the issue because counsel had not raised it. The defendants raised the issue on appeal. The Court of Appeal was satisfied that the award of $200,000 took account of inflation. It rejected an argument that Bush v. Air Canada had been overridden by the subsequent decision of the Supreme Court of Canada in Botiuk. The Court substituted a rate of 2.5%. I am satisfied that the award made by the jury in this case covers inflation. Six years elapsed from cause to trial. Justice Chipman’s caution to “take particular care in cases where a long period of time has elapsed” applies. While the jury was not specifically instructed about the principle that the loss is valued as at the time of trial, the instructions on damages were consistent with that principle. Their minds were not directed particularly to the moment of the defamation. Rather the evidence on damages and the instructions on that subject regarded the whole of the effects of defamation on Constable Campbell’s reputation and her emotions from the time the cause arose onwards. I cannot conceive that the jury formulated the award by thinking in 1995 dollars rather than 2001 dollars. The defendants have provided me with information showing that the average consumer price index for Nova Scotia between April 1995 and April 2001 was 2% a year. Accepting the plaintiff’s calculation of a commercial rate at 4.6% and the defendants’ rate for inflation, I am satisfied that 2.6% a year is a fit rate for interest on the jury’s award less the contribution. The defendants advance two arguments for reducing the period over which prejudgment interest is to be calculated. One regards an allegation of undue delay. The other concerns the period of time to which the jury’s award is referable. I do not accept these arguments. Six years is a moderately long time to bring a cause to trial, long enough to impel a close examination of the course of the litigation. The cause arose early in April, 1995. Demands were made soon after by the plaintiff’s solicitor, and demands were made again in June, 1995 by Mr. MacDonald after he was retained as counsel. Seven defendants were sued in October, 1995 when the time for notice to media defendants expired. Pleadings did not close until the summer of 1996. The five media defendants were separately represented and all five settled at various different terms. One defendant settled early on. The rest of the settlements were achieved after exchange of documents and discoveries. The participation of such a large number of parties separately represented was bound to cause scheduling delays and to lengthen the time required for disclosure and discovery. Also, a delay was necessitated by an application respecting questions put to Constable Campbell during her discovery and demands by the defendants for production of documents. The discovery took place in mid-January 1997, the application was heard over two days in March 1998 and Justice MacAdam released reasons on the first of May: Campbell v. Jones, Derrick, Canadian Broadcasting Corporation, New Cap Inc. c.o.b. Halifax Metro Daily News Publishing, CHUM Limited and CanWest Maritime Television Inc. (1998), 168 N.S.R. (2d) 1 (S.C.). In addition to the six parties then involved in the suit, the Halifax Regional Municipality and the Public Prosecution Service of Nova Scotia were represented. Success was divided, but the scope of the proposed discovery and productions was much limited. Discovery of Constable Campbell had to resume and some documents had to be produced. CanWest and New Cap settled that summer. CHUM settled by March 1999 and the CBC by January 2000. The notice of trial was issued early in February 2000. The defendants suggest delay particularly in 1998 and 1999. As counsel for Ms. Derrick puts it: ... there were considerable periods of ‘dead-time’ in the years of 1998 and 1999 in which very little was done to advance this matter to trial .... The plaintiff answers that this was a period in which efforts were made that resulted in settlements with the remaining media defendants. The seventeen months from Constable Campbell’s discovery in August 1998 to the notice of trial in February 2000 does seem a long time to devote to the settlements with CHUM and the CBC. However, I would be slow to conclude that time in which settlement was being seriously pursued was a period of “undue delay.” The defendants also point out that the case was not factually complex. As counsel for Ms. Derrick says, “While the law of defamation may be complex, the key factual issues were not.” If this means that the jury did not have to struggle with evidence that was difficult to understand, then I agree with what is being said, except for this observation: until Justice MacAdam’s decision in May 1998, the defendants were planning a very broad approach that would have inquired deeply into relations generally between the Halifax police department and Black citizens. If the quoted passage suggests that the task of hearing all the evidence and assessing it in reference to divers issues was a simple one, then I disagree. The trial lasted for twenty-five days. The instructions took a full day. It took the jury three days to render a verdict when it was not even asked to deal with jury questions, this being a defamation case and the parties being unable to agree on the form of questions. The magnitude of the task given to the jury would give some indication of the magnitude of the task undertaken by counsel in trial preparation. The parties have referred me to numerous decisions in which undue delay was discussed and in which various periods were identified as either appropriate or undue. While findings on this subject in past cases provide very general guidance, no rule of thumb can be established. At least in the context of appellate review, it has been said: “I do not think much is to be gained by comparing the length of various periods permitted in other cases; each case turns on its own particular facts”: D.W. Matheson & Sons Contracting Ltd. v. Canada (Attorney General) (2000), 175 N.S.R. (2d) 201 (C.A.) at para. 44. On behalf of Ms. Derrick it is said: “There is simply no legitimate reason for why it took the Plaintiff close to six years to have this matter brought to trial.” The first six months are fully explained and were not entirely in the plaintiff’s control: awaiting responses to demands, taking advice on a suit, choosing counsel and waiting out the notice period for the media defendants. With so many separately represented defendants, pleadings did not close until the summer of 1986. From close of the pleadings to notice of trial is about three and a half years. Allowing for the complicated application to Justice MacAdam, the need to resume discovery of Constable Campbell, the numerous parties separately represented, time taken to achieve some settlements, the mass of evidence, and the complexity of some issues, both substantive and procedural, I do not find undue delay. The second argument to foreshorten the period over which prejudgment interest is to be calculated relates to s. 41(k)(ii). The following was submitted on behalf of Ms. Derrick: In his closing address, counsel for the Plaintiff argued that the jury should consider all of the conduct of the Defendants when awarding damages, including their actions during the course of the trial. Indeed, he suggested the Defendants’ cross-examination of the Plaintiff was unduly hostile and was calculated to embarrass the Plaintiff. He also contended that the Defendants forced the Plaintiff to go through a “hellish” litigation process and that the jury should consider the emotional and other costs of same when awarding damages. It is suggested that “the magnitude of the jury’s award” indicates the jury found the submissions to be persuasive. Thus, the award compensates for behaviour at the time of trial and, to that extent, it should not attract interest. I do not draw the same conclusion from the amount of the award. The jury also heard the able submissions of both counsel for the defendants on the subject of conduct after the publication. And, the jury received instructions on assessment of damages. They seemed very attentive and some were careful to take notes. They were cautioned that defendants’ counsel have a duty of vigorous defence. Through the course of submissions and instructions the jury were told that damages compensate for harm to reputation and harm to emotions caused by defamation. At poignant moments during direct and cross-examination, the emotional harm to Constable Campbell became so obvious as to be called palpable. These moments contrasted remarkably with Constable Campbell’s presentation at all other times. The subject at hand during these moments was always the initial publications or the failure to get an apology shortly afterwards. If the jury believed Constable Campbell, a substantial award would reasonably have been expected. Also, if the jury accepted the pleaded innuendos, the defamation was very serious and this too suggested a substantial award. In my assessment, the award had little or, more likely, nothing to do with the conduct of the defence. I do not, therefore, see this as a case for reducing prejudgment interest on the ground that the plaintiff was not out the entire award from the time the cause arose. In conclusion on prejudgment interest, I am satisfied that 2.6% is a fit rate, and I am not prepared to exercise my discretion to reduce the period over which interest is to be calculated. I will entertain an order allowing interest on $225,500 at 2.6% a year from April 5, 1995 until the date of the order. Costs. The plaintiff submits for a lump sum award of costs in the amount of $160,000. The defendants refer to this as “exorbitant” and submit for costs at the basic scale under Tariff A applied to the actual recovery as the “amount involved,” which produces costs of $11,140. I have the discomfort of having been referred to two of my own decisions. In both Matheson & Sons Contracting Ltd. v. Canada (Attorney General) (1999), 175 N.S.R. (2d) 201 (S.C.) varied on other grounds (2000), 175 N.S.R. (2d) 201 (C.A.) and Founders Square Ltd. v. Nova Scotia (Attorney General), [2000] N.S.J. 220 (S.C.) reversed on other grounds [2001] N.S.J. 106 (C.A.), I granted lump sum costs to reflect a substantial but partial contribution towards reasonable actual costs where tariff costs could not do so, because the tariff produced an amount too low, in the first case, or too high, in the second case, to meet the principle of substantial but partial contribution. In view of the extensive submissions made by the defendants on this issue, I feel compelled to take a closer look at this issue than I did in my previous decisions. Two subjects addressed by the defendants move me in this regard. Firstly, counsel for Ms. Derrick provided a very extensive review of case law since the tariff system came into effect in 1989 towards a submission that the tariff should rarely be departed from and, in particular, that the failure of tariff costs to provide substantial indemnity is not a sufficient reason to depart from tariff costs. Secondly, counsel for Mr. Jones referred me to decisions not considered by me before which may stand for the proposition that a lump sum award is only available in very exceptional circumstances along the same lines as an award of solicitor and client costs. The defendants characterize my earlier decisions as falling within the rare exception. Previously, party and party costs were taxed under the Costs and Fees Act R.S.N.S. 1989, c. 104, by reference to lengthy lists of described activities under headings such as “attendances” and “perusal,” each activity having a fixed dollar value. Ten dollars for each letter written. Three dollars for each one read. And so on. The taxing master had discretion to increase some amounts and, with items such as counsel fees multiplied by the days of trial and items such as drafting letters taxed according to the number actually prepared, the total increased with the effort involved. However, in more recent times the method seemed arcane and the results seldom had any resemblance to actual costs. The Civil Procedure Rules which came into effect in 1972 provided for taxed costs in accordance with the Costs and Fees Act but our rules also borrowed from the English rules in providing a discretion to “award a gross sum in lieu of, or in addition to any taxed costs”: Rule 63.02 (a). In Pickford & Black Ltd. v. Canadian General Insurance Co. (1974), 10 N.S.R. (2d) 245 (S.C., A.D.) a successful appellant requested a lump sum award. At para. 3, Chief Justice MacKeigan said: I cannot forbear expressing my personal opinion that the power to award a gross sum should be exercised only in very exceptional circumstances. I believe that any common exercise of that power would undesirably increase the uncertainties and expense of litigation. In 1989 a new system was brought into effect. As is shown by the authorities I shall shortly review, the intent was to provide the successful party with a substantial but partial contribution towards the reasonable costs of litigation. The Costs and Fees Act was amended to provide for Tariffs of Costs and Fees and to permit the tariffs to be established by the Costs and Fees Committee. Tariff A is a table of amounts which increase according to the “amount involved” and five levels of scales, Scale 3 being “basic.” The Tariffs direct that the “amount involved” is to be determined not only in light of the actual award where the plaintiff is successful or on the damages that would have been assessed where the defendant is successful, but also in light of the complexity of the proceeding and the importance of the issues. The Civil Procedure Rules were also amended to recognize the Tariffs. Rule 63.04 was changed to recognize costs fixed by the Tariffs and 63.04(2) provides for various additional considerations in fixing costs including the catch-all “any other matter relevant to the question of costs”: 63.04(2)(j). Rule 63.04(1) allows that the court does not have to follow the tariffs. They are applicable “unless the court otherwise orders”. And, Rule 63.02(1) was retained, including the discretion to order a lump sum. Since the implementation of the new system by far most orders for costs have followed the tariff system, with the flexibility of the “amount involved” and the varying scales providing a sufficient basis for reducing to a dollar figure the various considerations going to costs. However, in a few reported cases the court has had resort to a lump sum award where the tariff system was found to be unworkable or inappropriate. The effect, if any, of the new regime upon the great caution suggested by Chief Justice MacKeigan under the old regime has not, so far as I know, been commented upon. However, the defendants have referred me to Stanhope Estate v. Nova Scotia (Attorney General) (1996), 152 N.S.R. (2d) 289 (Tidman, J.) where the estate sought solicitor and client costs or a lump sum in the alternative and Justice Tidman cited, among other authorities, Pickford & Black Ltd. for the proposition that “An award of solicitor/client costs or a lump sum of costs should be awarded only in ‘rare and exceptional’ circumstances’”: para. 3. I note that counsel were agreed in the Stanhope Estate case that the costs being sought could only have been awarded in exceptional circumstances. So, the present issue was not in contest there. Justice Tidman found exceptional circumstances and ordered a lump sum of $3000 in addition to party and party costs. I propose to review decisions in which the principle of substantial but partial contribution was discussed in the context of costs under the tariffs. I will also summarize some decisions to which the defendants have referred me which do not elaborate on the principle but appear to achieve the results it intends without abandoning the tariff system. Hines v. Registrar of Motor Vehicles (N.S.) (1990) 105 N.S.R. (2d) 240 (Davison, J.) was decided not long after the tariff system came into effect. It was an application under the Charter involving important issues and no monetary amount. A lump sum award was not requested or considered. However, Justice Davison made reference to the principle of substantial partial indemnity and the relevance of counsels’ actual fees in the course of discussing the complexity of the proceeding, which is a factor going to the determination of the “amount involved” under the tariffs. At para. 8 Justice Davison quoted from the report of the Statutory Costs and Fees Committee as follows: The recovery of costs should represent a substantial contribution towards the parties’ reasonable expenses in presenting or defending the proceeding, but should not amount to a complete indemnity. Justice Davison found this statement to be consistent with P.A. Wournell Contracting Limited et al. v. Allen (1980), 37 N.S.R. (2d) 125 (S.C., A.D.), and he said at para. 9: If party and party costs are intended as a partial indemnity for solicitor and client costs, the method used to calculate them should have some relationship to the method barristers use in calculating solicitor and client costs. In cases where the court is assessing the complexity of a proceeding for the purpose of determining the “amount involved” and tariff costs, Justice Davison was of the view that evidence of the actual fees would be helpful. He said at para. 10: ... it seems to me that in the spirit of attempting to indemnify the successful parties expenses, greater emphasis should be placed on the complexity of the proceeding than the importance of the issues. The amount of time spent on the file by the barrister, and therefore the amount of fees charged, usually has a direct relationship to the complexity of the proceedings. Landymore v. Hardy (1992), 112 N.S.R. (2d) 410 (Saunders, J.) involved no damages. It was a case of specific performance. Saunders, J., as he then was, referred to the “philosophy” of the new tariff, “to provide a ‘substantial contribution’ towards a party’s reasonable expenses” (para. 10). He quoted from the report of the Costs and Fees Committee as regards a substantial contribution not amounting to a complete indemnity (para. 16) and he referred to the usefulness of the court being provided with information as to actual costs: Only then will a judge be able to assess whether those expenses were ‘reasonable’ before going on to decide whether the costs to be awarded will in fact represent a significant contribution to such expenses. (para. 18) He decided to select an amount greater than that at issue “To give meaning to the words ‘a substantial contribution.’” The increased “amount involved” produced tariff costs of $16,375 which compared with actual costs of $31,000. The defendants referred me to Armstrong v. Baker (1992), 113 N.S.R. (2d) 420 (Saunders, J.). That was an automobile injury case involving complex expert evidence that was tried before a jury for ten days. The amount involved was $2,500,000. Saunders, J., as then was, applied scale 5, which led to tariff costs of $130,335. Although he referred to Landymore, it does not appear that Justice Saunders required or received evidence of actual costs. Mathers v. Mathers (1992), 113 N.S.R. (2d) 284 (Glube, C.J.) reversed on other grounds (1993), 123 N.S.R. (2d) 14 (S.C., A.D.) involved a number of actions tried together, the most all-encompassing being a shareholder oppression suit. Both sets of opposed parties succeeded to some extent against the other with one set recovering a net of $222,113 at the trial level. Counsel for the more successful parties produced evidence of actual costs in the range of $95,000. The Chief Justice of the Trial Division, as she then was, rejected an argument that Landymore stood for the proposition that the successful party should recover roughly half of their actual costs and she expressed concern that such a rule could lead to abuses: para. 136. Chief Justice Glube took account of the discounted value of certain shares in fixing the “amount involved” at $300,000 and she was satisfied that scale 3 was appropriate in the circumstances. Thus, she ordered tariff costs of $13,375. Relative success was reversed on appeal but the Court of Appeal applied the same calculation for costs: para. 37. In McManus v. Nova Scotia (Attorney General) (1995), 147 N.S.R. (2d) 318 (Palmeter, A.C.J.), Associate Chief Justice Palmeter repeated the quotation from the Cost and Fees Committee report and he followed Hines and Landymore in determining the “amount involved” for the purposes of tariff costs. The first reference to the principle of partial but substantial indemnity in connection with a lump sum award appears to have been made by Justice Nunn in an unreported decision late in 1995. Conrad v. Snair et al. (1996), 150 N.S.R. (2d) 214 (C.A.) was an appeal from an award of costs amounting to $114,375 for one successful defendant and $64, 374 for a second successful defendant. At the trial level, Justice Nunn determined to supplement the tariff amount, $34,375, with substantial lump sum awards. Justice Nunn is quoted at para. 31 of the Appeal Court decision as having stated that lump sum awards are “unusual” and he said “costs should represent some substantial contribution towards the party’s reasonable expenses” though “they should not amount to a complete indemnity.” On appeal, Flinn, J.A. was satisfied that Justice Nunn did not apply wrong principles in his determination of tariff costs or in his decision to award additional lump sum amounts rather than to increase the scale under the tariffs (para. 32). I do not read Justice Flinn’s remarks as necessarily endorsing the principal of substantial indemnity as a sufficient reason to depart from the tariffs and substitute a lump sum. He said that the principles followed by Justice Nunn were those set out in rules 63.02 and 63.04. The defendants referred me to 1874000 N.S. Ltd. v. Adams (1996), 148 N.S.R. (2d) 1 (Saunders, J.) varied (1997), 159 N.S.R. (2d) 260 (C.A.). A professional negligence suit led to a twelve day trial. The “amount involved” was settled at $2,000,000 and the main issue on costs was scale. Justice Saunders applied scale 5, which led to tariff costs of $105,000. He said at para. 166 , “Such an award recognizes the underlying philosophy behind the Tariffs and should provide the plaintiffs with a substantial contribution towards their legal fees.” Damages were reduced on appeal, but the Court of Appeal followed the same method as had Justice Saunders in determining costs. The reduced “amount involved” led to costs for trial of $93,325. The subjects of partial indemnity and lump sum costs were considered again by the Court of Appeal late in 1998: Williamson v. Williams, [1998] N.S.J. 498 (C.A.). The Court of Appeal found an award of costs based upon the tariff “so low as to be manifestly unjust” (para. 21). Damages were $97,200 in a case that involved a trial, a successful appeal on liability, an assessment of damages and an appeal from that. Freeman, J.A., writing for the Court of Appeal, discarded an increase in the “amount involved” to achieve higher tariff costs (para. 22). He rejected doubling tariff costs because even that would be inadequate “to reflect a regard for restitution” and such would set an undesirable precedent where a split trial may be convenient (para. 23). He said, “The present solution must be sought in the special circumstances of this case” (para. 23). Justice Freeman then repeated the quote from the report of the Cost and Fees Committee. He suggested the committee contemplated awards in excess of half the actual fees but he observed “costs awards representing a much lower proportion of legal fees actually paid appear to have become standard and accepted practice in cases not involving misconduct or other special circumstances.” At para. 28 he said It is difficult to avoid the conclusion that cases such as the present one require that a middle ground be found, between party and party costs determined under the present tariffs and solicitor and client costs, which affords at least a degree of recognition of the principle of restitution. The reference to restitution concerns remedies for breach of fiduciary obligation, the cause of action in the Williamson case. Justice Freeman found the required middle ground in Rule 63.02(1)(a), the discretion to award a lump sum. He said at para. 29 “Practice has focused on the tariffs but this rule, although sparingly used, is still available.” After referring to Conrad v. Snair, Justice Freeman explained the two factors that led him to reject tariff costs as “manifestly unjust” and substitute a lump sum of $44,180. The two factors concerned the inability of the tariff to address “a five-day trial, an appeal as to liability, a trial on the assessment of damages...and the present appeal” and the need to reflect the principle of restitution where there has been a breach of fiduciary duty (para. 32). I do not read this decision as necessarily endorsing the principle of partial indemnity as necessarily justifying departures from the tariff. However, this marks the second occasion in which the Court of Appeal has referred to the principle when discussing lump sum costs. The decision makes it clear that tariff costs may be manifestly unjust in some circumstances and that the discretion remains to award lump sum costs reflective of a partial indemnity for objectively assessed actual costs. In Keddy v. Western Regional Health Board, [1999] Carswell NS 381 (Oland, J.), this court again ordered lump sum costs over tariff costs. That was also a case in which liability and damages were severed. Because it was difficult to determine a reliable “amount involved,” Oland, J., as she then was, decided not to set costs in accordance with the tariffs: para. 5. She referred to the principle of substantial partial indemnity and to the decision in Williamson: para. 6 and 7. At para. 19 she summarized the various factors she took into consideration “in determining an appropriate substantial contribution” and she allowed $18,000. This was not a case of great complexity. The reason for departure to lump sum costs was the difficulty of determining an “amount involved.” In Cashen v. Donovan (1999), 174 N.S.R. (2d) 360 (Goodfellow, J.) the issue on costs was whether the court should order tariffs costs at scale 3 or scale 4. It does not appear that the successful party, the plaintiff, presented evidence as to actual costs. This automobile injury case took eight days to try and Justice Goodfellow considered that “the length of trial alone would justify serious consideration of movement from Scale 3": para. 17. That and other considerations led him to award costs at scale 4, which produced tariff costs of $13,289. In the course of his discussion, Justice Goodfellow recognized that the tariffs were instituted “with the expressed intent that the recovery of party and party costs should represent a reasonably substantial recovery...of reasonable costs” but not “to provide complete indemnity, as such is reserved for an award of solicitor and client costs”: para 14. He expressed his opinion that the cost of litigation had outstripped the capacity of the tariffs “to provide a reasonable and substantive contribution toward a successful party’s solicitor and client costs,” and he said “This is particularly so where the present Tariffs give no specific direction as relates to the length of trial...”: para. 16. The defendants referred me to Balders Estate v. Registrar of Probate (1999), 181 N.S.R. (2d) 201 (Saunders, J.). That case involved an application for a final order and a preceding interlocutory application. These took one day in total: para. 25. At issue was the constitutionality of fees imposed in respect of probate. After succeeding at chambers and on leave to appeal, the estate sought trial level costs on a solicitor and client basis. Justice Saunders declined that request. However, he took risk and consequences to the parties into account in fixing the amount involved at $200,000: para. 25 and 26. This led to tariff costs of $10,375. Most recently, Justice Goodfellow commented upon the subject of tariff costs as substantial indemnification in Gilfoy v. Kelloway (2000), 184 N.S.R. (2d) 226 (Goodfellow, J.). He stated again that “the philosophy upon which the new system was implemented was that party and party costs should represent a substantial indemnification” (para. 22) and he expressed again his view that the tariff system often failed to achieve this, a difficulty which should be addressed generally by judges in consultation with the bar rather than “in an individual case” (para. 23). He said: The court should follow the existing guidance and determine the ‘amount involved’ and tax accordingly, even with the recognition that such party and party costs are usually far from being a substantial indemnification of the solicitor and client costs of the party entitled to costs. (para. 28) Justice Goodfellow fixed the amount involved at $60,000, he applied scale 5 on account of the way the unsuccessful plaintiff had conducted the trial and this led to tariff costs of $7,525. There was no discussion of departure to a lump sum award. The decisions since the tariff system came into effect in 1989 suggest that Chief Justice MacKeigan’s remark in 1974 concerning “very exceptional circumstances” has to be considered in a new light. His opposition to a “common exercise” of the power to award lump sum costs was based on two concerns, that such would increase the uncertainties of litigation and that such would increase the expense. Where common awards of lump sum costs might have diminished the certainties that the old system of taxation held, the present system allows much flexibility in any case. The risk of increasing the expense of litigation is controlled to some extent by the recognition in Mathers that the principle of substantial partial contribution does not involve any rule as to the percentage to be recovered, and by the stipulation found in many of the decisions that evidence of the actual accounts for fees is always subject to objective assessment and a requirement of reasonableness. Furthermore, the two decisions of the Court of Appeal concerning lump sum costs since the new regime came into effect make no mention of Pickford and Black, and in Conrad v. Snair the stringent limit proposed by Chief Justice MacKeigan was not applied when the lump sum award was reviewed on appeal in that case. Also, Chief Justice MacKeigan’s remarks put awards of lump sum costs and solicitor/client costs on the same footing but it is clear from Justice Freeman’s comments in Williamson that lump sum costs can be awarded where solicitor/client costs cannot. These decisions do not lay down rules of law. The establishment of an “amount involved,” the selection of a scale or the decision to depart to lump sum costs all involve the exercise of discretion in light of circumstances particular to each case. Previous decisions provide guidance. The guidance I take from these decisions is as follows. It appears that usually tariff costs are awarded. Apparently this has often been so even where tariff costs fail to meet their objective of a substantial but partial indemnification: Williamson. Judges have expressed reluctance to artificially increase the “amount involved” in order that tariff costs should reflect a substantial indemnity: Williamson, Keddy, Cashen and Gilfoy. I understand the comments of Justice Goodfellow in Cashen and Gilfoy, but there certainly are cases in which the objective has been considered and variations in the “amount involved” or choice of scale have been applied to achieve the objective: Hines, Landymore, Armstrong, Adams and Balders Estate are examples. Further, the failure of tariff costs to meet the objective has been a factor in decisions to depart from tariff costs and to exercise the discretion under Rule 63.02(a) to award a lump sum: Conrad, Williamson, Keddy, Matheson and Founders Square. When judges have increased the amount involved or the scale to take account of the objective, they have sometimes made reference to the successful party’s actual costs: eg. Hines and Landymore. However, it is clear that the court will not lay down any percentage of actual costs as a rule of thumb: Mathers. Similarly, when judges have departed from tariff costs in order to serve the objective of partial but substantial indemnity, reference has sometimes been made to evidence of actual costs: Williamson, Matheson and Founders Square. However, the same caution expressed in Mathers should apply. Also, the costs are subject to objective assessment: Williamson. And, I would add that another feature of the tariffs should be respected when there is a departure from the tariffs to a lump sum. The party’s choice of counsel and the terms of retention have no bearing on tariff costs. The tariffs were designed to achieve a substantial indemnity but without regard to the arrangements between the particular party and counsel. One might say the objective was substantial indemnity against what would generally or ordinarily be charged to a client in like circumstances. To preserve some element of that where a lump sum award is in order, the court should try to assess counsel’s efforts on a general basis, and should take the actual fees into account only to the extent they tend to show generally what any client of any competent lawyer might expect reasonably to be billed for services necessary to the case at hand. In summary, the discretion to award a lump sum is not so restricted as with an award of solicitor and client costs; tariff costs are usual and a lump sum is a departure from the usual; the discretion has been exercised where tariff costs would not produce a partial but substantial indemnification without artificially setting the “amount involved”; the objective of a partial but substantial indemnification may or may not be sufficient reason to exercise the discretion; care must be taken to avoid employing fixed percentages or embracing the party’s actual bill over a more generalized assessment. For two weeks before trial the parties were engaged in the preparation and submission of evidence and argument on numerous pre-trial motions concerning admissibility of two extensive opinions on race relations, disclosure by the plaintiff of settlement agreements with the former media defendants, relief of the plaintiff from the implied undertaking against collateral use of discovery and productions in a related action, removal of plaintiff’s counsel, relief of the defendants from the implied undertaking, directions as to whether the plaintiff might split her case, defendants’ right to cross-examine each others’ witnesses and directions regarding defendants’ number of peremptory challenges. Some of these were complex. Some, novel. On each of these I reserved decision on costs until after trial. I am now satisfied that costs should be in the cause. Considering the number of applications, the volumes of materials submitted and the time taken in chambers and extrapolating from that an estimate of the labours in preparation, I conclude that the cost of motions far exceeded the ordinary as contemplated by the tariffs. Also, this gives some indication of the complexity of the proceeding. The trial lasted for twenty-five days including submissions and deliberations. At the close of the cases I heard submissions for four days as to issues a judge must decide in a defamation case and as to what I should include in my instructions. The subjects in contest included whether the words were capable of defamatory meaning, whether joint publication should be left to the jury to the limited extent it was raised by the statement of claim, whether the republication in the media went only to damages, whether the alleged innuendoes should be left to the jury, what the jury should be told regarding unlawfulness of the detention and search apart from denial of right to counsel, the defence of qualified privilege, whether malice should be left to the jury, instructions on media republication as an independent cause, instructions on joint and several liability, instructing the jury on various statements before them for a limited purpose, whether I should advise the jury of my decision on qualified privilege, the same regarding the threshold for defamation, the same regarding malice, the same regarding the threshold for fair comment, whether other publications respecting the incident would be taken into account on harm to reputation and the question of a “special rule” on honest belief. Many of these were difficult issues argued at some length. Counsel were able to limit themselves to one day for submissions to the jury. The complexity of the case or the volume of the evidence may also be indicated by the length of time it took me to instruct the jury, unfortunately a full day, or by the time it took the jury to deliberate, three days. A case consuming such an amount of time and volume of labour would have to be considered highly complex for the purpose of the “amount involved” in tariff costs unless time or effort was wasted. I do not consider any of the issues raised before trial or at the conclusion of the evidence by any party to have been frivolous. The extent of the issues in contest showed the extent of the differences between the parties. Similarly with the evidence. The defendants criticize the number of witnesses called by the plaintiff only to give circumstantial evidence respecting the search. Constable Campbell was faced with the situation where it was her word against that of three others, she with interests as great as theirs. Circumstantial evidence would be expected. Also, the defendants relied on much circumstantial evidence as presented by them or drawn out through cross-examination. Some criticism is also expressed as to the number of witnesses who testified to the effects of the publications upon Constable Campbell’s apparent emotions and attitude. There were only four such witnesses and Constable Campbell was entitled to call them. They did not take much time. In my opinion, this was not a case involving any significant wasted time or effort. I think all of us became frustrated as the length of the trial expanded from expectations, but that was indicative of the radical differences between the parties, which takes me to the second consideration, importance of the issues. It would be a rare defamation case where the plaintiff went to trial only to receive compensation. Vindication, not only through a finding of liability but also through a substantial award, is often the primary goal, and it is sought to restore reputation, at least in part. This should, I think, be kept in mind for an award of costs in a defamation case just as the principle of restitution was a consideration in a case of breach of fiduciary obligation. The issue was of personal importance to Constable Campbell quite apart from any payment she might receive. As for the defendants, I think my comments on qualified privilege and my reasons for taking the charge of actual malice away from the jury show my assessment of the important issues raised and responded to by both sides. It follows that, if I were to order tariff costs, I should increase the “amount involved” well above the amount of the award because of the complexity of the proceeding, the importance of the issues and my consideration of the other factors described in Rule 63.04. including, under 63.04(2)(j), the pre-trial motions. If I were to order tariff costs at the highest scale applying the amount actually recovered, tariff costs would be $16,600. If I were to double the “amount involved,” the costs would still only be $26,600. As in Williamson this is a situation where my efforts to factor in special circumstances would involve “the arbitrary determination of a fictitious ‘amount involved.” (para. 22). I consider this a case for a lump sum award because the plaintiff had to engage in a very expensive proceeding involving a long trial and because the legitimate interests at stake exceed the merely monetary. The plaintiff has produced evidence that her actual fees are $210, 276 involving 1,549 hours of work by her counsel and their firm. I would not fix a lump sum simply by reference to this amount. It has not been taxed and, in any case, an award based solely on a party’s actual costs would run counter to the concerns expressed in some of the cases I discussed. This is one piece of evidence. In an attempt to move away from the particularities of plaintiff’s choice of counsel and their arrangements, I think I am entitled to gauge roughly what a case like this would ordinarily cost. In light of the six weeks of trial time, the two weeks in which motions were presented, the massive volume of materials presented on numerous issues, and the quality of the presentations, and extrapolating from all that a rough estimate of the labour expended in getting to trial, I should expect fees in the six figures and fees of $200,000 do not surprise me. An award of $75,000 will amount to a substantial indemnification but it could not approach complete indemnity of ordinary, reasonable and necessary fees for an effort of the kind demanded in this case. In the circumstances, I will exercise my discretion to award a lump sum of $75,000 plus disbursements. I believe that the plaintiff’s disbursements are agreed. If I am wrong in that, I will allow the plaintiff her reasonable and necessary disbursements to be taxed by the taxing master. J.