Freedom of Expression (Civil)

Canadian Tire Corp. Ltd. v. Desmond, 1972 CanLII 380 (ON SC)

In my view, the following principles are applicable to the evidence before me:

(a)

"The right to peacefully picket or to make a truthful statement is assured and the authorities and statutory provisions deal only with the limitations upon such accepted right ...

. . . . . In short, then, the above authorities establish that picketing is only wrongful; (a) If it is featured by defamatory statements, or (b) If it is carried on in such a manner as to disclose a purpose other than peacefully "obtaining or communicating information", or (c) If it is part of a conspiracy to injure.

(The italics are mine.) Canada Dairies Ltd. v. Seggie, 1940 CanLII 348 (ON SC), [1940] 4 D.L.R. 725 at pp. 730 and 733, 74 C.C.C. 210, per Mackay, J. (as he then was).

(b)

But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions. We entirely approve of, and desire to adopt as our own, the language of Lord Esher, M.R. in Coulson v. Coulson, 3 Times L.R. 846 -- "To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury have decided whether it was a libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreasonable." In the particular case before us, indeed, the libellous character of the publication is beyond dispute, but the effect of it upon the Defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury may find to be wholly unfounded; nor can we tell what may be the damages recoverable. Moreover, the decision at the hearing may turn upon the question of the general character of the Plaintiffs; and this is a point which can rarely be investigated satisfactorily upon affidavit before the trial, -- on which further it is not desirable that the Court should express an opinion before the trial. Otherwise, an injunction might be granted before the trial in a case in which at the trial nothing but nominal damages, if so much, could be obtained. Upon the whole we think, with great deference to Mr. Justice North, that it is wiser in this case, as it generally and in all but exceptional cases must be, to abstain from interference until the trial and determination of the plea of justification.