Makow v. Winnipeg Sun et al.,

• Jurisdiction: Manitoba
• Judge: Monnin, J.
• Neutral Citation: 2003 MBQB 56
• Citation: 2003 MBQB 56,(2003), 172 Man.R.(2d) 213 (QB),[2003] 11 WWR 166,172 Man R (2d) 213,172 ManR(2d) 213,(2003), 172 ManR(2d) 213 (QB),172 Man.R.(2d) 213
• Date: 17 March 2003
• Court: Court of Queen's Bench of Manitoba (Canada)

Makow v. Winnipeg Sun (2003), 172 Man.R.(2d) 213 (QB)

MLB headnote and full text

Temp. Cite: [2003] Man.R.(2d) TBEd. AP.035

Henry Makow (plaintiff) v. The Winnipeg Sun and Sun Media Corporation, A Quebecor Company (defendants)

(CI 00-01-19096; 2003 MBQB 56)

Indexed As: Makow v. Winnipeg Sun et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Monnin, J.

March 17, 2003.

Summary:

The plaintiff's contract as a university lecturer was not renewed following complaints by female students. A newspaper article discussed the appropriateness of, inter alia, the plaintiff telling students about his sex life and great make-up sex after beating up his girlfriend, asking female students how and when they lost their virginity, asking female students whether a certain novel passage aroused them and making statements that religious Jews and Muslims look ridiculous because of the way they dressed. The plaintiff sued for damages for libel. The newspaper denied that the statements were defamatory and pleaded justification and fair comment.

The Manitoba Court of Queen's Bench allowed the action and awarded the plaintiff $5,000 general damages.

Libel and Slander - Topic 644

The statement - What constitutes defamatory statements - General principles - Disparagement of reputation - The plaintiff's contract as a university lecturer was not renewed following complaints by female students - A newspaper article on the dispute stated or inferred that the plaintiff beat his girlfriend, engaged in unprofessional conduct, was incompetent, asked inappropriate sexual questions (when female students lost their virginity, their relationship with their boyfriends, whether a novel passage aroused them), was bigoted (traditional Jews and Muslims look ridiculous because of the way they dress) and intimidated students - The Manitoba Court of Queen's Bench stated that the statements were, in their context and ordinary meaning, defamatory because the statements, if believed, would tend to diminish the plaintiff's reputation amongst his peers and amongst the university population at large, let alone the general public - See paragraphs 31 to 53.

Libel and Slander - Topic 652

The statement - What constitutes defamatory statements - General principles - Test for - The Manitoba Court of Queen's Bench stated that "the general rule of construction is that to apply a standard of common sense construction, the tests are objective and words will be construed as they are generally understood in their natural and ordinary sense. That means that the court looks at the meaning that would naturally be taken by ordinary individuals reading the article. It includes any inferences and implications which the words reasonably may bear. It is not necessary to prove that the words would be understood in a defamatory sense by everyone who hears or reads them, as long as the question of whether a reasonable person to whom they were published would understand them in a defamatory sense is answered in the affirmative. The words must be given their meaning in context. The statements should not be parcelled out of the article to stand by themselves, but must be read in light of what has preceded them and what follows, looking at the article as a whole. Context and circumstances are crucial in determining the defamatory sense of words. ... Consideration of the publication as a whole includes consideration of other documents that are referable to one another and the juxtaposition of statements within the article. What the author meant is not the issue, but what meaning would normally be given to the words 'by reasonable people'." - See paragraphs 35 to 38.

Libel and Slander - Topic 2861

Defences - Justification or truth - General - The Manitoba Court of Queen's Bench stated that "once the plaintiff has shown that the words are defamatory, then the law presumes that these words are false and the defendant has the burden to show that the statements are substantially true. ... It is not sufficient for the defendant to prove that it believed the statements to be true. It must show that they are substantially true. In the case of statements containing both fact and opinion, the defendant, under the defence of justification, must prove that the statements of fact are true and the statements of opinion are correct. ... A slight inaccuracy in one or more of the details will not prevent from succeeding in a defence of justification. It is the imputation contained in the words which has to be justified, not the literal truth of the words. The defendant is not limited to facts referred to in the article, but may prove justification by advancing evidence which was not in existence at the time of the alleged libel." - See paragraphs 54 to 56.

Libel and Slander - Topic 2864

Defences - Justification or truth - Evidence and proof - A newspaper article on a dispute between a university lecturer, his students and the university, stated or inferred that the lecturer beat his girlfriend, engaged in unprofessional conduct, was incompetent, asked inappropriate sexual questions in and out of class (when female students lost their virginity, their relationship with their boyfriends, whether a novel passage aroused them), was bigoted (traditional Jews and Muslims look ridiculous because of the way they dress) and intimidated students - The Manitoba Court of Queen's Bench held that the statements were defamatory - The defence of justification applied only to the statements respecting beating his girlfriend, asking students about the loss of their innocence and relationships (but only inside class) and discussing his sex life - All other statements were not proved to be substantially true - The defence of fair comment did not apply to the statement that were not true - See paragraphs 62 to 110, 123 to 128.

Libel and Slander - Topic 3106

Defences - Fair comment - Elements of fair comment - General - The Manitoba Court of Queen's Bench stated that criteria to be met for the defence of fair comment were "(a) the words objected to must be comment and not statement of fact; (b) the comment must be fair; (c) the comment must be on a matter of public interest" - The court discussed the distinction between "comment" and "fact" - See paragraphs 112 to 122.

Libel and Slander - Topic 3108

Defences - Fair comment - Elements of fair comment - Public interest - [See Libel and Slander - Topic 3106 ].

Libel and Slander - Topic 3109

Defences - Fair comment - Elements of fair comment - Truth - [See Libel and Slander - Topic 3106 ].

Libel and Slander - Topic 3114

Defences - Fair comment - What constitutes fair comment - [See Libel and Slander - Topic 2864 ].

Libel and Slander - Topic 4423

Damages - General damages - Measure of - Elements and considerations - The Manitoba Court of Queen's Bench stated that factors to be considered in assessing general damages included "(a) the seriousness of the defamatory statement; (b) the identity of the accuser; (c) the breadth of the distribution of the publication of the libel; (d) republication of the libel; (e) the failure to give the audience both sides of the picture and not presenting a balanced review; (f) the conduct of the defendant and defendant's counsel through to the end of trial; (g) the absence or refusal of any retraction or apology; (h) the failure to establish a plea of justification" - See paragraph 133.

Libel and Slander - Topic 4423

Damages - General damages - Measure of - Elements and considerations - Some statements in a newspaper article defamed a university lecturer by alleging incompetence, unprofessionalism, inappropriate sexual comments to students, physical intimidation and bigoted comments about Jews and Muslims - The article was republished in London and Toronto - Defences of justification and fair comment failed, although some of the comments in the article were justified - The newspaper submitted that the lecturer had no reputation to lose, so that any damage award should be limited - Although the Manitoba Court of Queen's Bench rejected the submission that the lecturer had no reputation to lose, the court was satisfied that the partial success of the plea of justification warranted lesser damages where the lecturer had a partially blemished reputation - The court awarded $5,000 general damages - Aggravated damages were not warranted absent malice - See paragraphs 129 to 152.

Libel and Slander - Topic 4428

Damages - General damages - Measure of - Aggravated damages - [See second Libel and Slander - Topic 4423 ].

Cases Noticed:

Jerome v. Anderson et al., [1964] S.C.R. 291, refd to. [para. 4].

Beevis v. Dawson, [1957] 1 Q.B. 195 (C.A.), refd to. [para. 4].

Laufer v. Bucklaschuk (1999), 145 Man.R.(2d) 1; 218 W.A.C. 1 (C.A.), refd to. [para. 31].

Jones v. Skelton, [1963] 1 W.L.R. 1362 (P.C.), refd to. [para. 33].

Leenen v. Canadian Broadcasting Corp. et al. (2000), 105 O.T.C. 91; 48 O.R.(3d) 656 (Sup. Ct.), refd to. [para. 36].

Winnipeg Steel Granary & Culvert Co. v. Canada Ingot Iron Culvert Co. (1912), 22 M.R. 576 (C.A.), refd to. [para. 113].

Hunt v. Star Newspaper Co., [1908] 2 K.B. 309 (C.A.), refd to. [para. 116].

Digby v. Financial News Ltd., [1907] 1 K.B. 502 (C.A.), refd to. [para. 117].

Cohen v. Daily Telegraph Ltd., [1968] 1 W.L.R. 916 (C.A.), refd to. [para. 119].

Pearlman v. Canadian Broadcasting Corp. and Carlyle-Gorge (1981), 13 Man.R.(2d) 1 (Q.B.), refd to. [para. 120].

McLoughlin v. Kutasy, [1979] 2 S.C.R. 311; 26 N.R. 242, refd to. [para. 120].

Australian Broadcasting Corp. v. Comalco Ltd. (1986), 68 A.L.R. 259 (F.C.), refd to. [para. 120].

Boland v. Globe and Mail Ltd., [1961] O.R. 712 (C.A.), refd to. [para. 121].

Christie v. Geiger and Edmonton Sun (1984), 58 A.R. 168; 35 Alta. L.R.(2d) 316 (Q.B.), affd. [1987] 1 W.W.R. 357; 74 A.R. 1 (C.A.), refd to. [para. 121].

Ley v. Hamilton (1935), 153 L.T. Rep. 384 (H.L.), refd to. [para. 130].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 131].

Pickels v. Lane (1913), 11 D.L.R. 841 (N.S.T.D.), affd. (1914), 47 N.S.R. 465 (C.A.), refd to. [para. 138].

Plato Films Ltd. v. Speidel, [1961] 1 All E.R. 876 (H.L.), refd to. [para. 138].

Capitanescu et al. v. Universal Weld Overlays Inc. et al. (1997), 204 A.R. 81 (Q.B.), varied (1999), 232 A.R. 234; 195 W.A.C. 234 (C.A.), refd to. [para. 138].

Wiley v. Toronto Star Newspapers Ltd. (1988), 65 O.R.(2d) 31 (H.C.), affd. (1990), 74 O.R.(2d) 100 (C.A.), refd to. [para. 140].

Jones v. Bennett (1967), 59 W.W.R. 449 (B.C.S.C.), refd to. [para. 143].

Pamplin v. Express Newspapers Ltd. (No. 2), [1988] 1 All E.R. 282 (C.A.), refd to. [para. 145].

Authors and Works Noticed:

Brown, R.E., The Law of Defamation in Canada (2nd Ed. 1999) (looseleaf), vol. 1, pp. 1-27, 1-28 [para. 59]; 5-4, 5-5 [para. 34]; 5-49 [para. 36]; 5-55 to 5-62 [para. 38]; vol. 2, pp. 10-19 [para. 104]; 10-20 to 10-27 [para. 61]; 15-2 [para. 112]; 15-51, 15-52 [para. 120]; vol. 3, pp. 25-149 to 25-152 [para. 139].

Bullen, E., and Leake, S.M., Precedents of Pleadings (12th Ed. 1975), p. 379 [para. 148].

Gatley on Libel and Slander (5th Ed. 1960), pp. 561, 562 [para. 4].

Gatley on Libel and Slander (9th Ed. 1998), c. 11.3 [para. 54]; c. 11.7 [para. 55]; c. 12.6 [para. 115].

Starkie on Libel and Slander (2nd Ed.), p. 88 [para. 138].

Counsel:

Sidney Green, Q.C., for the plaintiff;

Robert L. Tapper, Q.C., and S. Marlaine Lindsay, for the defendants.

This action was heard before Monnin, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on March 17, 2003.