The Lawyers Weekly - June 10, 2011

Ontario Business Corporations Act,
2011/2012 Edition
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Eight of the jurors sued in libel for being accused of murder

Miller
Continued From Page 5
noted that Gash came from “a
respectable, hard-working family”
and “there was no apparent reason
why” the killer “should not have
obtained work” to support his wife
and child. He had planned and
talked about the crime for at least
six weeks, seeking accomplices. “In
these circumstances, and in spite
of the fact that…Gash preferred to
kill rather than to work, Mr. Nicol
states that society had driven him
to murder.”
Justice Clyne excoriated Nicol’s
reliance on the “very familiar” idea
that “denies the individual’s free-
dom of choice” as against blaming
“social or economic pressures.” As
well, it was “no part of the jury’s
duty to decide the punishment.”
The jurors discharged “their duty
honestly…and the court would be
derelict in its duty if it did not pro-
tect them from the degradation of
being referred to as criminals.”
This accusation and Nicol’s
describing the judge “as causing
exquisite torture is calculated to
lower the dignity of the Court and
to destroy public confidence in the
administration of justice.” Justice
Clyne fined Nicol $250 and his
publishers $2,500.

But that didn’t end the matter. Eight of the jurors sued in libel. Nicol and publisher Southam were successful at trial, where the judge found “the writer has done nothing more than to say that the jury…were the servants of society and in bringing in a verdict of

“[Nicol column was]
calculated to lower
the dignity of the
Court and to destroy
public confidence
in the administration
of justice.

guilty of murder…they were carrying out their duties to society which had assigned to them the task of trying Gash. It is capital punishment and the society which perpetuates that form of punishment which is under attack in this article, not the individual members of the jury as jurors.” The British Columbia Court of Appeal disagreed. Nicol had accused 12

identifiable citizens of pre-medi-tated murder. Only Bird J.A., dissenting on the basis that he would have awarded only nominal damages, noted that Nicol never named the jurors personally and their identities would not be known outside their immediate circles, such that the reputational injury was minimal or absent. The court awarded $4,000 total in damages: MacKay v. Southam Co. Ltd., [1954] B.C.J. No. 89.

Nicol once wrote that “in the eyes of Canadians, writing humour is like an illicit love affair: it is excusable provided you don’t make a habit of it, or accept payment for what you have done.” Like De Vries, he was often seriously funny, in all the emanations of that phrase. With De Vries, he might have quoted Sydney Smith, writing to an English Bishop: “You must not think me necessarily foolish because I am facetious, nor will I consider you necessarily wise because you are grave.” n

Writer-lawyer-translator Jef-
frey Miller’s latest book is the
comic novel Murder on the
Rebound.
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Email us at: tlw@lexisnexis.ca 

Employer who discriminates hindering himself

Schafer
Continued From Page 3

economic incentives for even the most recalcitrant bigot to reconsider his prejudices. Discriminatory behaviour comes with a price tag, since it reduces the bigot’s range of options with respect to both suppliers and customers.

In a competitive free market, employers for example, must continually seek ways in which to outdo their competitors. A failure to respond to changes in the marketplace increases the chances of going out of business. An employer who decided to hire on a discriminatory basis instead of on capability to do a job, would be hindering his own competitiveness by passing up some of the best candidates. He would not be able to continue to do so for long because operating under the competitive disadvantage of discrimination would confer an advantage on competitors. Even if a large percentage of employers started out as bigots, competitive pressures would eventually reduce this percentage as they became compelled to either drop their bigoted hiring practices or go out of business.

For example, employers who decided to discriminate and not hire or under-pay otherwise qualified white males, would create a sizable pool of underemployed and underpaid white men. Other non-discriminatory employers could hire (even at a salary only slightly above what the discriminatory employers offered) and reap a profit. Eventually, other employers, including those discriminatory employers for whom the lost profit is too high a cost in relation to their preference to discriminate, would seek to hire the low-paid white male employees, effectively driving up the wages of white males and returning to an employment rate and salary level for this group that existed prior to discrimination.

Thus, despite discrimination,
the free market offers the best
way to improve the lot of those
discriminated against. Discrimin-
ation enshrined in law, like the
U.S. law that kept blacks at the
back of buses, provides no such
route to improvement because
the discriminatory majority does
not have to bear the costs of their
action, as it would have to in the
private sector. This is because
government ministries and
departments do not go out of
business for failing to respond to
competitive pressures; they
always have a pool of taxpayer
money from which to draw.