In Kwok v. Canada (NSERC), 2013 ABQB 395, the Alberta Court of Queen’s Bench held that journalistic source privilege applies to some of the contents of the information given to a journalist, even though the sources of the information are known to the plaintiff.
Between 2001 and 2005, the University of Alberta employed Dr. Kwok as an assistant professor. Dr. Kwok received research grants from the National Sciences and Engineering Council of Canada (“NSERC”). The University of Alberta subsequently determined that Dr. Kwok violated a University Policy by improperly duplicating his publications in multiple journals, and that he had misappropriated some NSERC grant money.
Dr. Kwok and the University of Alberta reached a settlement, whereby Dr. Kwok agreed to pay funds to the University of Alberta. Afterwards, in late 2008, the University of Alberta provided its investigation reports confirming the duplication of publications and misappropriation of grant money complaints to NSERC. In 2009, NSERC terminated the grants it had awarded Dr. Kwok, and banned him from receiving further NSERC funding.
In 2010, Canwest and the National Post reporters published articles that accused Dr. Kwok of plagiarism and misusing grant funds.
Dr. Kwok sued eight Defendants, including representatives of NSERC and the two journalists, alleging defamation and breach of contract. In this proceeding, one of the issues was whether a Canwest journalist should be compelled to answer questions that her counsel objected to on the basis of journalistic source privilege.
Dr. Kwok argued that the communications between the journalist and the sources were not privileged because the identity of the sources were known. Canwest argued that knowledge of the source’s identity is not incompatible with an assertion of privilege, and that there was an alternative method by which Dr. Kwok could obtain the information he sought, because he was able to question the source directly. The Court agreed with Canwest, and held that the Wigmore test was satisfied and the information was protected. In finding that the relationship between the journalist and her source was one to be sedulously fostered, the Court noted that the intent of the journalist’s story appeared to be ensuring that public funds were properly accounted for (para.162). The Court held that the availability of an alternate route to obtain the information was relevant, citing R v. National Post, 2010 SCC 16.