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Daniel Urbas is a lawyer with Woods & Partners. His practice focuses on media law, intellectual property, e-commerce and litigation. He can be reached at

The contents of Publishing Law should not be construed as legal advice offered by Masthead or Mr. Urbas. Readers should consult their own lawyers before acting.

Column for February 2001
$780,000 Libel Ruling Against Globe Reveals Dangers of Sensational Journalism


Journalists and magazine publishers should pay special attention to a recently reported decision in which the Ontario Court of Appeal ordered a journalist and The Globe and Mail to pay a municipal engineer $780,000 in special and general damages for a series of articles appearing in 1991.

The Court held in a June 2000 decision (but only published in October 2000) that a finding of actual malice is fatal to the defences of fair comment and qualified privilege. Actual malice existed because the journalist attempted to write a sensational story and engaged in systematic reporting of one side and non-reporting of the other.


The facts in Hodgson v. Canadian Newspapers Company Limited et al. 49 O.R. (3d) 161 involved two related matters: the Region of York's acquisition of lands for an overpass and its approval of a sub-division of lands abutting railroad tracks and a major road in the Region.

Robert Hodgson, the former regional engineer for the Region of York, a suburban Toronto municipality, filed the defamation action as a result of series of articles written by the defendant Jock Ferguson and published by the defendant The Globe and Mail.

The case turned on what the word "dedicated" meant in a sub-division approval agreement entered into between the Region and a land developer. Condition 23 of the sub-division provided that "a widening ... shall be dedicated as a public highway." The word dedicated meant either a) to give or transfer without charge or b) to give over property for use as a road.

The trial lasted seventy-eight (78) days. During the trial, the judge had the benefit of hearing several ordinary witnesses and expert witnesses skilled in planning practice in the Region, read several dictionaries and reviewed the many conditions of the sub-division agreement, one against the other. After his review of all the above, the trial judge concluded that Hodgson honestly believed that that the Region had to pay for the land and that he did not have to bring Condition 23 to the Region's attention.

Unfortunately, the Defendants' articles alleged that Hodgson arranged for the payment of $783,500 of the Region's funds to a long-time friend of Hodgson, Mr. DeGasperis, for lands which DeGasperis had already agreed to convey to the Region for free in a sub-division agreement; that Hodgson had recommended to the Region's Council to make the payment without revealing the fact that DeGasperis had agreed to convey the lands for free; Hodgson's deputy had reminded him of DeGasperis' agreement before Council made the payment; that Hodgson denied any intent to mislead counsel and asserted that he had saved the Region money but that the legal department had disclosed that other land developers in the Region had given lands for free before. The Court held that these allegations were false.

Defamation in Ontario

The plaintiff in a defamation action in Ontario has the burden of proving that the words complained of were published by the defendants and that they concerned him. The Defendants admitted these facts.

The plaintiff also has the burden of proving that the words are defamatory in their natural and ordinary meaning. The trial judge stated that "the test to be applied by the Court is whether the words complained of, in their natural and ordinary meaning ... may tend to lower the plaintiff in the estimation of reasonable persons or to expose the plaintiff to hatred, contempt or ridicule."

The Court evaluates the words by considering the meaning which reasonable persons of ordinary intelligence would give the words. The Court will look at the context in which the words were published and will not seek an unusual meaning or rely upon the single negative interpretation if more than a few meanings could exist.

The defendant's intention is irrelevant to the issue of meaning. The Court stated, "It is trite law that the author is liable for what the words mean, not for what he intended, or believes they mean."

The plaintiff can also succeed in his action if he establishes that the words are defamatory by extended meanings referred to as "innuendoes". An innuendo exists where the defamatory meaning arises by inference. Two types of inference exist: a "false" innuendo and a "legal" or "true" innuendo.

A "false" innuendo is an inference which a reasonable person, without any special knowledge, would likely draw upon reading the words. A "legal" or "true" innuendo is an inference which depends upon extrinsic facts and not the natural or ordinary meaning of the words. With a "legal" or "true" innuendo, the plaintiff has to allege how and why a particular defamatory meaning could be conveyed to readers and has to prove the circumstances in which the words would have that defamatory meaning.

Court's analysis of the article

Journalists should be alert to how the judges reviewed the article and which facts influenced them the most.

Though the defendants wrote and published several articles, the judges held that the first article was the most damaging. The article contained all the key allegations. Both the trial judge and the Court of Appeal noted the prominence given to the article by publishing it on the front page of an influential newspaper, above the fold, across the entire width of the page with the main headline for that day. The first article "had the most potential for harm, being a front page story with a significant headline introducing the matter to the public. It is a truism that first impressions are important."

The judge examined the tone set by the first article, the journalist's choice of language and the methodical way the journalist undermined the plaintiff's explanations. All elements led the Court to conclude that the article's natural and ordinary meaning was that Hodgson deliberately concealed information from the Region's Council to benefit his friend. "Such a meaning is not buried in the story, to be seen only by the excessively cynical or those avid for scandal; the meaning jumps out the reader from the headline onwards." Indeed, the title to the first article was "Land bought by York Region should be free, files say."

The trial judge also analysed the way in which the journalist presented the facts which served to undermine Hodgson. His reported reasons are careful and span over 170 condensed pages. The reasons detail the steps taken by the journalist to investigate and draft his articles. The reasons are recommended reading for anyone interested in how a defamation action can examine the practice of journalism. The reasons demonstrate that the journalist's main faults were that he slanted the story to make it sensational, that he failed to report Hodgson's defence, that he suppressed the mention of an expert's letter favourable to the plaintiff and that he failed to report new facts favourable to Hodgson such as a substantial settlement paid by the Region in light of his dismissal.

For example, Hodgson's denials in quotes were immediately followed by statements which contradicted him and cast doubt on whether he was candid. Hodgson is cited as saying that it was common practice to pay for such lands but the journalist immediately contradicts Hodgson by following his quote with the caution "but the legal department found" documents which said otherwise. The plaintiff's explanations are authoritatively denied by pitting the Region's records against him. The trial judge observed "the evidence presented against the plaintiff is not presented as someone's opinion, or as a matter of dispute or doubt, but as a matter of record."

The trial judge made several comments on the journalist's conduct in presenting the story. The Court of Appeal endorsed these findings:

"The trial judge made extensive adverse findings as to Ferguson's conduct in writing the story. Among the findings supporting malice were the following. First, Ferguson relied on Oakes as a source when he knew of the friction between Oakes and the respondent and knew Oakes to be partisan. Second, Ferguson knew of evidence that supported the position of the respondent, in particular the Rust D'Eye opinion, but suppressed it. Third, Ferguson failed to give Hodgson a fair chance to explain his side of the story in the first article and made no effort to present a balanced picture in the articles that followed. Fourth, the defendants did not even attempt to justify the statement that the respondent was "long-time friend" of DeGasperis, a statement that could only be read in the context as suggesting dishonesty on the part of the respondent. In the end, the trial judge's findings amount to this: Ferguson was, above all, intent on writing a sensational story and engaged in "systematic reporting of one side and non-reporting of the other." In view of the trial judge's detailed and explicit rejection of Ferguson as a credible witness and the high degree of deference the court must accord to finding of facts, I see no basis for interference with these findings". (underlining added)

The trial judge also concluded that several defamatory false innuendoes were unjustified such as that the plaintiff deliberately misinformed his employer to its and the community's detriment; the plaintiff misused his position to serve the interest of his friend to the community's detriment.

Based on the trial judge's findings, the defendants were not allowed to plead justification. That is, they were not allowed to defend themselves by claiming that the allegations were true.

Actual malice and defences of qualified privilege and fair comment

Defendants pleaded that the allegations in the article were published on an occasion of qualified privilege and that they were fair comment. These defences were dismissed because the Court of Appeal reaffirmed the rule that actual malice defeats the defences of qualified privilege and fair comment.

The case is worth reading in order to learn (1) how the Court defined "actual malice", (2) which facts which will establish actual malice and (3) how actual malice eliminates other defences.

The Court of Appeal observed that "actual malice does not require the presence of a desire to injure the plaintiff, or any ill will towards him, although if such an intention is the dominating motive, it will suffice." The Court held that a journalist's positive belief in the truth of what is published on a privileged occasion will not help the journalist if he misused that special occasion for a private advantage unconnected to duty or the interest giving rise to the qualified privilege.

The Court of Appeal agreed with the plaintiff that the journalist "did understand, but said nothing about, the fact that there was a real issue as to whether the Region could get this land free; in the great haste with which the story was put in print to avoid being beaten by the competition, leading to the many errors of fact in the article; in the failure to give Mr. Hodgson a fair chance to explain the situation; and a suppression of documents favourable to the plaintiff such as the Culshaw report, as well as Mr. Rust-D'Eye's letter. These were all steps taken in bad faith in pursuit of creating a sensational story".

The Court accepted that a journalist need not report everything he knows. However, the Court cautioned that selection may be more of an art than a science: "the choice of what is and is not, reported may be, and is in the case at bar, evidence of malice. The systematic reporting of one side and non-reporting of the other speaks volumes. It is also submitted that the objective of selling newspapers is not evidence of malice: the sale of the paper is an economic imperative. Again, I agree in principle, but the evidence before me shows that the facts were slanted to make a sensational story and that cannot be justified by any motivation, however, honourable or imperative".


Based on their review, the trial judge and the Court of Appeal found that there was ample evidence of actual malice because the main purpose of the articles was not to report the facts, but to create a sensational story.

The judgment should serve as a warning to journalists and publishers operating under strict deadlines. The care with which the Court examined the evidence ought to be contrasted with the haste with which the defendants published their scoop. It is often true that journalists and publishers do not always have the luxury of extended reviews. However, they must still verify the key facts, both oral and written, and give the individuals concerned by the a story a genuine chance to respond to the allegations. The rush to print a scoop must yield to the fair presentation of the facts available.