An Alberta judge has overturned an order that would have forced a journalist to disclose the identity of a confidential source to a law firm.
Justice Beverly Browne, of the Court of Queen’s Bench Alberta, allowed an appeal of the order, which would have compelled Fort McMurray Today columnist Kevin Thornton to disclose the identity of a source who provided information for columns he wrote about Alberta-based firm Stringam Denecky LLP. The firm is suing the owner of the newspaper, Sun Media Corporation, for defamation over the columns, which were about a dispute the law firm had with a client over fees.
W. Scott Schlosser, a Master of the court, had determined the identity of the source could be central to the firm’s claim and that the public interest in disclosing their name outweighed that of protecting their identity.
But Browne found the identity of the source was not relevant to the defamation action.
“. . . I am not satisfied that information about Thornton’s source, including the disclosure of the source’s identity, can reasonably be expected to significantly help determine an issue raised in the parties’ pleadings, or ascertain evidence that could reasonably be expected to do so,” Browne wrote in the decision in Stringam Denecky LLP v. Sun Media Corporation.
“Accordingly, Thornton is not obliged to answer the questions.”
After Schlosser’s decision, lawyers voiced concerns that the order would have a chilling effect on potential sources coming forward to the media if it was not overturned on appeal.
Sara Hart, one of the lawyers representing Sun Media, says Schlosser’s decision was problematic for journalist-source privilege.
“The difficulty with the master’s earlier decision was that he seemed to intimate that the minute there was malice [or] malice was pled, which is pled in most cases, that would then allow a source to be exposed,” says Hart, a partner with Dentons Canada LLP.
Thornton’s columns were about a dispute over $70,000 in fees the firm had charged a client. After the client appealed the fees to an assessment officer, a source provided the client’s affidavit in the matter to Thornton, who then used it to write columns about the high legal costs in family law cases.
After the columns were published, the firm started a defamation action against Thornton, Sun Media and another employee of the company.
While the affidavit was a public document, Stringam Denecky asked Sun Media questions about the identity of Thornton’s source in the early stages of its defamation action. Thornton refused to answer those questions, citing journalistic source privilege.
In Sun Media’s appeal of Schlosser’s order, the company argued that the identity of Thornton’s source was not relevant and that the firm had failed to show how it would help resolve the issues in the defamation action.
The firm contended that the source’s identity was relevant, putting forward a theory that whoever supplied him with the court application acted maliciously to harm the law firm’s reputation. This information could help to prove whether Thornton had acted maliciously, the firm argued.
Browne, however, found that demonstrating malice on the part of the source would not help the firm to establish malice on the part of Thornton.
In his decision, Schlosser considered an analysis called the Wigmore test, which considers a number of factors to determine if communications should be privileged.
But Browne felt she did not need to review those factors because of her determination that the questions the firm wanted to ask about the source’s identity were not relevant.
“Thornton’s objection to the questions on the basis of journalist-source privilege should be upheld,” she said.
James Heelan, the lawyer who represented the firm in the matter, declined to comment on the decision.