In this decision, the Court of Appeal for Ontario reinstated Bondfield Construction Company Limited’s $125-million defamation action against The Globe and Mail Inc., allowing it to proceed to trial.
Bondfield brought its action after the Globe had published a series of articles in 2015 and 2016 that, according to Bondfield, alleged corruption or wrongdoing in the decision to award Bondfield the contract to build a new critical care facility at St. Michael’s Hospital in Toronto.
This was one of the first appellate decisions considering a major media organization’s attempt to rely on Ontario’s new anti-SLAPP (i.e., Strategic Lawsuits Against Public Participation) legislation, the purpose of which is to prevent the use of litigation as a silencing tool against persons who speak out on matters of public interest.
In an earlier ruling, the motions judge granted the Globe’s anti-SLAPP motion and dismissed Bondfield’s action. In overturning that decision, the Court of Appeal (per Justices David Doherty, who wrote the decision, Gladys Pardu and Ian Nordheimer) held that: “There are powerful arguments to be made on both sides of the public interest balancing required in s. 137.1(4)(b) [of the Courts of Justice Act, R.S.O. 1990, c. C.43]. In the end, I view this as a case in which Bondfield has a legitimate argument that it has been defamed and suffered significant damages as a result of the Globe articles. The Globe has legitimate arguments, both that the content is not defamatory and that it has defences to any parts that are defamatory. Unlike SLAPP suits which reek of the plaintiff’s improper motives, claims of phantom harm, and bullying tactics, this litigation smells of a genuine controversy. It should be tried on its merits.”
Bondfield Construction Company Limited was represented by Kevin O’Brien and Karin Sachar of Osler, Hoskin & Harcourt LLP.
Carlos Martins and Andrew MacDonald of Bersenas Jacobsen Chouest Thomson Blackburn LLP acted for The Globe and Mail Inc.