Judge Finds Bondfield's Defamation Action Against Globe and Mail Has "Substantial Merit"; Globe Made "Significant Omissions" in Its Reporting

TORONTO, March 29, 2018 /CNW/ - In a decision released yesterday, Justice Edward Morgan of the Ontario Superior Court of Justice was highly critical of the Globe and Mail's reporting in a series of articles relating to Bondfield's successful bid for the St. Michael's Hospital Redevelopment Project.

Bondfield brought an action in defamation against the Globe, who alleged in the articles that Bondfield's success on the bid was for reasons other than the fact that it submitted the lowest compliant bid. While the judge found that he was compelled to grant the Globe's motion to dismiss Bondfield's action based on the strict reading of the legislation under which the motion was brought, he did so with "consternation", given that "Bondfield's claim has substantial merit" and "there is significant public interest in seeing such a claim proceed".

In reaching his decision, the judge found among other things that:

• "there is really little doubt" that the Globe's series of articles about the St. Michael's Project process "were defamatory" of Bondfield;
• "There is thus little doubt in my mind that there is substantial merit to Bondfield's claim";
• Critically, in its articles, the Globe "failed to mention" the report released by Infrastructure Ontario on the St. Michael's Hospital project "which effectively exonerated Bondfield from any allegations of actual wrongdoing", and also failed to mention until the third in a series of five articles "that Bondfield was the lowest bidder that met the required technical score for its proposal";
• "it is possible that…the whole story was not told and as a result misstatements of fact about [Bondfield] were published"; and
• "I have doubts as to whether [a legal defence of responsible communication] could be sustained by the Globe in the face of significant omission from the series of articles".

Despite a decision that was almost entirely in Bondfield's favour, the judge held that the Globe has "a potentially valid defense of fair comment" available to it, and under the recently enacted legislation under which the Globe brought its motion, "one defense covering the entire series of articles is enough to support" the Globe's motion to dismiss the action. The judge was however critical of the legislation, finding that "[w]hile the Globe may have met the specific statutory criteria for dismissal of the claim, I am not satisfied that this conclusion truly fulfills the legislative purposes of the [legislation]. Bondfield's action strikes me as a bona fide attempt to recover losses it claims to have suffered as a result of the impugned series of articles. I do not think it falls within the policy of discouraging [strategic lawsuits against public participation] that is articulated" in the legislation.

Bondfield is disappointed its action was dismissed, and intends to appeal the decision. It is however heartened that the judge recognized the strength of its action in the Globe, and how irresponsibly the Globe acted in its reporting on the Articles.

SOURCE Bondfield Construction Company Limited

A copy of the decision is available on request. Please contact: Paul Dipede (In-House Legal Counsel for Bondfield) at [email protected]