March 27, 2013
1654776 Ontario Limited v. Stewart 2013 ONCA 184
On June 30, 2008, the Globe and Mail published an article by its then financial reporter, Sinclair Stewart, about the on-going negotiations in the proposed takeover of BCE. Stewart had written several articles already, describing the deal’s progress and many of his articles relied on information provided by several unnamed confidential sources. Jeffrey MacIntosh, a University of Toronto law professor and expert in corporate and securities law, alleged that the article caused him to lose money in a securities transaction he made through a numbered company. MacIntosh was seeking to have the identities of the confidential sources identified so that they could be named in a proposed class action that includes BCE and others as defendants. MacIntosh had been unsuccessful in his earlier attempt to get the Ontario Securities Commission to investigate what he alleged were “misrepresentations” by the confidential sources, and a breach of the Ontario Securities Act.
The Ontario Court of Appeal, while upholding the result, takes issue with the lower court’s application of the first step of the Norwich test for determining when an applicant is entitled to learn the identity of a wrongdoer.
In writing for the court, Justice Juriansz states, at para 47:
The application judge did not consider whether the appellant satisfied the first step of the Norwich test. He simply assumed it had and proceeded on with the analysis. Although he assumed it was satisfied, his statement of the standard to be met is not correct. He said that at the first step the appellant was required to show a stronger case than an applicant in an ordinary Norwich application because freedom of expression was involved.
In Juriansz J.’s view, values like freedom of expression are only to be considered at step five of the Norwich test when the Wigmore test can be applied to determine whether the interests of justice favour disclosure.
Automatically applying a more robust standard at step one of all Norwich applications involving freedom of expression loses sight of the case-by-case approach required by National Post and Groupe Polygone, and of the fact that the onus is on the media to satisfy the Wigmore test.
Justice Juriansz then goes on to discuss the fifth Norwich factor, at para 77:
The fifth Norwich factor is whether the interests of justice favour the obtaining of disclosure. This factor is broad and encompasses the interests of the applicant, the respondents, the alleged wrongdoers and the administration of justice. The interests of the respondents and the greater public interest sweep in their claim of journalist-source privilege. The privilege claim must be determined by application of the Wigmore test. In this way the Norwich and Wigmore tests intersect, as the application judge noted.
In the Court of Appeal decision, the application of the Wigmore test, within the Norwich test “requires close attention to the placement of the onus. The onus is on the appellant to establish the fifth Norwich factor, but the onus is on the respondents to satisfy the Wigmore test.”
Juriansz J. goes on to state, at para 137:
…Following the guidance provided by Morden J.A. in Straka, the nature and apparent strength of the appellant’s case is to be weighed together with the other relevant factors…The appellant has not put forward any evidence that the statements were false or materially misleading…The appellant’s claim that the sources had ulterior motives to make the statements is speculative.
Justice Juriansz concludes:
In the final weighing up I would conclude that the greater public interest is served by upholding the respondents’ claim of privilege. The public interest in free expression must always be weighed heavily in the balance. The balance may well have been shifted, had the apparent strength of the appellant’s case been compelling; however the appellant has not put forward such a case. Whatever the merits of its case, the appellant can seek a remedy from BCE and Canada Inc.