Ottawa Citizen

Appeal court finds error in defamation ruling

National Post writers to get new trial

- JOSEPH BREAN jbrean@nationalpo­­n

A British Columbia judge wrongly decided three National Post writers defamed a prominent climate scientist, and a new trial is required to fix the errors, according to the British Columbia Court of Appeal.

In the case brought by Andrew Weaver, now leader of the British Columbia Green Party, the trial judge’s key mistake was to determine the allegedly defamatory meaning of four separate articles by reading them together, as a whole, and then assigning joint liability to all the authors, the court ruled Friday.

“For Dr. Weaver to establish a cause of action based on a combined reading of the articles he needed to rely on extended defamatory meaning by innuendo, and to prove joint liability with respect to its publicatio­n,” reads the judgment, written by Madam Justice Gail Dickson on behalf of a unanimous three-judge panel. “In sum, in my view, the judge’s erroneous approach to combined defamatory meanings was pervasive and inextricab­le from her individual findings.”

The decision overturns the 2015 finding of defamation, for which the Post was ordered to publish a retraction and pay Weaver $50,000. No retrial has been scheduled. “Fair comment for columnists and opinion writers is a pillar of journalism and we feared the original judgment could have had a chilling effect,” said Anne Marie Owens, the Post’s editor-inchief. “We are delighted with this ruling, and will continue to fight for important press freedoms.”

The Post was unable to reach Weaver on Friday.

The articles were written by Terence Corcoran, Peter Foster and Kevin Libin. Between them they wrote four articles that mentioned Weaver, which were published in the National Post, the Financial Post and FP Magazine in late 2009 and early 2010. At the time, Weaver was Canada Research Chair in climate modelling and analysis at the University of Victoria. He had also contribute­d to the United Nations’ Intergover­nmental Panel on Climate Change.

All were about the current state of climate science and the political response to it, specifical­ly about the consequenc­es of Climategat­e, a scandal over the leak of emails from the University of East Anglia that gave a glimpse into the correspond­ence of the scientists preparing the IPCC reports.

The articles also followed two 2008 break-ins at Weaver’s campus office at the University of Victoria. A recurring theme in the disputed articles was Weaver’s purported suspicion that agents of the oil industry were behind these crimes, and how this could distract the public from turmoil within the climate-science community, brought about by the leak of the East Anglia emails.

As the new ruling describes it, Weaver’s counsel presented each of the four articles as individual expression­s of defamation. “There is no pleading of conspiracy or other concerted action implicatin­g the author of one article in the defamatory expression of another,” it reads. The National Post similarly defended each article individual­ly, claiming the defence of fair comment.

Emphasizin­g the context of Climategat­e, Justice Emily Burke found in her original decision the Post’s writers “espouse a skeptical view of climate change” that led them to deliberate­ly create a negative impression of Weaver. She decided that the articles, “read together, were defamatory because they supported inferences that he is profession­ally incompeten­t, deceitful and unethical.”

She declined to award punitive damages as she did not find malice in the articles, but she did order the Post to remove them from the Internet.

She noted the articles had a “distinct overlap,” and determined their allegedly defamatory meanings “based on a combined reading of all four articles.” The reasons for this approach were not clear to the appeal judges, and by analyzing the articles together — absent a claim of conspiracy or concerted action — Judge Burke made a legal error that can only be fixed by a retrial, the appeal court ruled.

 ??  ?? Andrew Weaver
Andrew Weaver

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