From Ad IDEM / CMLA

Date: 20030317

Docket: CI 00-01-19096

Indexed as: Makow v. The Winnipeg Sun et al.

Cited as: 2003 MBQB 56

(Winnipeg Centre)

COURT OF QUEEN’S BENCH OF MANITOBA

BETWEEN:

HENRY MAKOW,	) For the Plaintiff:
	) Sidney Green, Q.C.
Plaintiff,	)
	)
- and -	) For the Defendants:
	) Robert L. Tapper, Q.C.
THE WINNIPEG SUN and SUN MEDIA CORPORATION, a QUEBECOR COMPANY,	) S. Marlaine Lindsay ) )
	) Judgment delivered:
Defendants.	) March 17, 2003

MONNIN, J. INTRODUCTION

The plaintiff, Henry Makow, was a lecturer at the University of Winnipeg for the academic year 1999-2000. Some of his students took offence to the manner in which he presented his course. Mr. Makow’s contract to teach as a stipendiary lecturer was not renewed. He formed the view that this failure to renew was as a result of the philosophies he espoused in the classroom, which he believed were in conflict with the prevailing views of the university faculty and administration. His dispute made it to the newspapers. In one particular article entitled “Stow your sympathy for ‘maligned’ prof”, published in the Saturday, June 17, 2000 issue of The Winnipeg Sun, Mr. Makow claims that he was libeled.
The defendants deny that the article contains defamatory comments and raise the defences of justification and fair comment. The defence of qualified privilege was abandoned at trial.

PRELIMINARY PROCEDURAL MATTERS

The plaintiff sought to have a determination at the outset that he need only prove publication of the article (which was admitted). The defence would then be required to present its evidence on the issues of justification and fair comment, leaving the plaintiff with the right of reply as deemed necessary.
The plaintiff’s counsel relied upon the decision of the Supreme Court of Canada in Jerome v. Anderson et al., [1964] S.C.R. 291, where Cartwright J. approved such a procedure, relying upon an English authority in Beevis v. Dawson, [1957] 1 Q.B. 195 (C.A.), and on R. O’Sullivan, ed., Gatley on Libel and Slander, 5^th ed. (London: Sweet & Maxwell, 1960) pp. 561 and 562. It is clear that such a procedure is not a rule of law but a rule of practice for the efficient administration of the court. As such, it is discretionary.
I concluded that there would be difficulty in dealing with proper areas of cross-examination and a possibility of splitting the plaintiff’s case. Furthermore, given that there were issues concerning the precise nature of what was defamatory in the article and an issue of damages, I considered it more convenient to have the plaintiff present his entire case at the outset. Therefore, I denied the request.
The trial commenced as a civil jury trial, but after opening statements, the plaintiff moved for a mistrial on the grounds of what his counsel alleged were inflammatory comments in defence counsel’s opening address. In the alternative, the plaintiff agreed to proceed by judge alone. The defendants had no objection to proceeding by judge alone, and I so ordered.

ISSUES

The issues which were before the court are as follows:

(a) Does the article contain statements that were defamatory of the plaintiff?

If the statements were defamatory of the plaintiff, were the facts, upon which the defendants relied and set out in the article, true, thereby allowing a defence of justification?
To the extent that the statements were statements of opinion, could the defendants avail themselves of the defence of fair comment?
If any of the statements were defamatory and the defendants could not avail themselves of the defences, what damages flowed?

FACTUAL BACKGROUND

Mr. Makow, at the time of the article, was 50 years of age. He held a bachelor’s degree (honours) in English and History and a master’s degree in English literature from Carleton University in Ottawa. As well, he obtained a doctorate in English literature from the University of Toronto in 1982.
After receiving his doctorate, he moved to Winnipeg and taught at the University of Winnipeg and the University of Manitoba as a lecturer. In 1985, he had the good fortune of inventing a board game named “Scruples”, which became a fairly popular board game. For the next number of years, the marketing of the game became his main occupation.
In 1999, he was offered a position as a stipendiary lecturer at the University of Winnipeg. He taught an English literature course to first year students. As explained by Dr. Constance Rooke, President, University of Winnipeg, a stipendiary position is a contract position whereby an instructor is hired to teach a specific course for a specific period of time. Why he is retained may stem from a number of potential reasons, but there is no understanding or agreement that the university will renew the contract.
Mr. Makow was to teach two classes that year with approximately 35 students in each class. There was a morning class and an afternoon class. It is in the morning class that problems developed.
Mr. Makow described his teaching methods in his course as being an assignment of various works of literature, which were then discussed in class. Some of the readings were supplemented by the viewing of films inspired by the books where appropriate. In his testimony, he stated that he encouraged class participation in general and particularly the expression of views not necessarily coinciding with his own. Full, frank and open discussion was his aim. Topics of gender issues, sexual issues and the roles of men and women in relationships in society were often discussed. He candidly admitted that his views were of a traditionalist, namely, in favour of family units comprised of a husband and a wife with the dominant breadwinner being the husband. He encouraged students to present different and various points of view and debate was not stifled.
A number of witnesses called on Mr. Makow’s behalf testified to the debates in class as being lively, interesting, and not restricted. However, different views from students called by the defendants were that Mr. Makow’s style was intimidating, with a tendency to discount or dismiss views inconsistent with his own, particularly on the topics of religion and gender issues.
Sometime in late November 1999 or in early January 2000, (the precise timing is not clear from the evidence), approximately 11 to 12 female students got together to express concerns as to Mr. Makow’s conduct in class. A letter was prepared setting out the concerns expressed by a number of members of the group. It was unsigned and addressed to him. There is some issue as to when Mr. Makow received the letter, but it is clear that he received it at some point in the academic year.
The letter raised concerns in the following areas:
pressure to conform to Mr. Makow’s beliefs in religion and politics;
discussions of a personal nature on the topic of sex;
failure to listen to students’ opinions;
attempts to instill his own views of religious beliefs;
concerns as to how papers were being graded.
The letter also contained a description of a discussion in class relating to:
a dispute between Mr. Makow and his girlfriend, which he claimed was followed by great makeup sex;
the inquiring of a student when she would have lost her innocence;
the asking of students about their personal life;
the asking of students whether a certain passage in a novel aroused them.
These are all issues that will become of relevance later.
The letter was sent to Ms Naomi Levine, Harassment Officer, University of Winnipeg, as well as to Dr. Neil Besner, Chair, English Department, University of Winnipeg. Mr. Makow responded to it by letter dated January 31, 2000, setting out why he was of the view that the statements set out in the letter were not accurate. The dispute persisted. There is evidence that Mr. Makow brought the topic of the letter up in class and inquired as to who were the originators of the letter. The students continued to have discussions with the university administration with respect to their concerns.
On March 18, 2000, a formal complaint was prepared, signed by four students, and sent to Ms Levine, with a copy to Dr. Rooke.
At a meeting in mid-March between Dr. Rooke, the students and the student advocate, a course of action was agreed upon. The course of action was that the students would not attend classes and would have their final papers and final exams evaluated by someone other than Mr. Makow. The correspondence suggests that, at first, Mr. Makow might have agreed to such a disposition, but further correspondence from him on April 10^th indicates that he did not. He took the step of e-mailing one of the students directly to advise her that unless she completed her assignments and allowed him to mark her essays and exams, he intended to assign her an “F”. Some of the students took advantage of the proposal by the university and others did not.
An article in The Winnipeg Sun on Friday, April 28, 2000 made reference to the dispute between Mr. Makow, the students and the university. Mr. Makow was interviewed and made statements, complaining about the position taken by the university in the dispute with the students. The headline to the article was styled “A Matter of Scruples?”, a reference to the fact that Mr. Makow was the inventor of the board game. Mr. Makow took objection to the manner in which the article had been headlined and wrote a letter to the editor, which was published in The Winnipeg Sun on Tuesday, May 2, 2000, criticizing the manner in which the headline had been set. A short commentary after the letter questions Mr. Makow’s ability as a headline writer.
On May 12, 2000, Mr. Makow filed a formal complaint against Ms Levine, Dr. Besner, and Dr. Rooke, complaining that their conduct towards him in the dispute indicated a discrimination because he did not conform to the “radical feminist doctrine that is enforced at the University of Winnipeg today.” A copy of the letter was sent to the Chairman, Board of Regents, the Minister of Education, the Deputy Premier, and opposition Education Critic.
An article in The Winnipeg Sun followed on Tuesday, May 16^th, outlining the complaint that Mr. Makow had raised with the university, but also indicating that he had filed a complaint with the Manitoba Human Rights Commission alleging discrimination against him for his political beliefs.
This was followed by an article in this city’s other newspaper, the Winnipeg Free Press, on Saturday, June 10^th, where the dispute between Mr. Makow and the university was reviewed by Lindor Reynolds, a columnist. She interviewed Mr. Makow, Dr. Rooke as well as some of the students.
On Thursday, June 15^th, an editorial opinion was published in The Winnipeg Sun, written by Michael Coren, and headlined “A Feminist Tale: by Franz Kafka”. The article was generally supportive of Mr. Makow’s position and critical of the university’s treatment of him.
On Saturday, June 17^th, in an article headlined “Stow your sympathy for ‘maligned’ prof”, Lyn Cockburn, an editorial writer with The Winnipeg Sun in Winnipeg, responded to Mr. Coren’s article. Ms Cockburn’s evidence was that she and Mr. Coren often took different sides of an issue in order to stimulate public interest in the topic.
In preparation for the writing of the article, Ms Cockburn interviewed Avital Feuer, one of the students in Mr. Makow’s morning class. She had been one of the signatories of the complaint and involved in the anonymous letter. Ms Feuer is the daughter of one of Ms Cockburn’s colleagues. It was common knowledge in the newsroom that Ms Feuer was one of the students who was displeased with Mr. Makow’s conduct. After obtaining information from Ms Feuer, Ms Cockburn then spoke to Mr. Makow to obtain his version of some of the allegations. She admitted that she did not put to Mr. Makow all of the statements attributed to him in her article, nor did she speak to any other party to confirm the information she had received from Ms Feuer. The article she wrote on June 17^th is the one from which this lawsuit arises.
The plaintiff, through his counsel, has filed a statement of claim complaining of 12 statements contained in the article. They are as follows:

1. I don’t know how old Michael’s children are but I suspect he would not want an 18-year-old daughter of his present in a first year English class taught by a 50-year-old man who announced one day he had beaten his ex-girlfriend (“she started it”) and afterwards they “had great makeup sex.”

2. I sat down with one of those daughters Thursday morning, and the first thing she said to me was, “This has nothing to do with feminism. He’s blown this up into something about feminism. It’s about unprofessional conduct.”

3. Do you want your daughter asked in class and out of class (Makow questioned young women outside the classroom) when and how she lost her innocence?

4. Would you like your daughter to be asked in class, and again outside class, if a certain passage in a D.H. Lawrence novel aroused her?

Want her subjected to the statement that religious Jews and Muslims look ridiculous because of the way they dress?
Want her in a class where the professor shouts at his students? Do you want her asked in class and out for details about her relationship with her boyfriend, if she happens to have one? Or in a class where the professor talks about his sex life?
Makow says everything he said got twisted. “It’s all a distortion.” The young woman I interviewed Thursday morning said it is Makow who twisted the situation.
And why have I not named her? Because she’s afraid. So are the other women (a total of 11 young women instituted the initial complaint against Makow and they did so with the approval and knowledge of the majority of their classmates) who also do not want their names used.
“We have reason to be scared of him,” said the young woman, adding that she and her friends were indeed worried when Makow talked about beating his ex-girlfriend (even if it was her fault!).
Nonetheless, the official letter of complaint was not anonymous. Seven young women signed it. The signature of the young woman I interviewed is on that letter.
I have a daughter, Michael Coren, and after the family doctor made inappropriate remarks and gestures to her, I wanted him disbarred or whatever the hell it is that is done with doctors.
I would feel the same way about a professor who made inappropriate unprofessional remarks to my daughter, in or out of class.
It was agreed during argument by the plaintiff’s counsel that statements no. 11 and no. 12 must be read together.
Mr. Makow states that by the said words, the defendant newspaper meant and were understood to mean that he was an “irresponsible, immoral, bigoted, dishonest, intimidating and incompetent person who was unfit to retain his position as a lecturer at the University of Winnipeg.”

DEFAMATORY MEANING

Our Court of Appeal stated, in Laufer v. Bucklaschuk, [1999] M.J. No. 553, at para. 25:

¶ 25 In a defamation trial, the trial judge is required to engage in a two-stage process. He must first determine as a question of law whether the challenged words are capable of bearing the meaning or meanings set forth in the pleadings. He must also determine whether the alleged defamatory meaning or meanings relate to the plaintiff. The threshold question in every defamation action is whether the words cited are reasonably capable of a defamatory meaning in relation to the plaintiff. If the trial judge has any doubt as to whether the words are capable of bearing the meanings relied upon by the plaintiff, he must withdraw the case from the jury. Only if he is satisfied that the published statements are capable of bearing the meanings alleged by the plaintiff in his pleadings, and are capable of relating to the plaintiff, may the trial judge then proceed to the second stage of the process. He may then instruct the jury on their function as finders of fact.

In this case, the jury having been excused, the trial judge is both the gatekeeper, as to what might have a defamatory meaning, and the finder of fact, of whether it does in the circumstances of this case.
I must, therefore, assess the statements to determine whether they are capable of bearing a defamatory meaning and whether, on the facts of this case, they did. The ordinary and natural meaning of the words must be what guides the court in determining whether the statements are capable of bearing a defamatory meaning. In Jones v. Skelton, [1963] 1 W.L.R. 1362 at 1370-71 (P.C.), Lord Morris of Borth-y-Gest described the test of reasonableness which should guide and direct the court:

… In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. In Capital and Counties Bank v. George Henty & Sons [(1882) 7 App. Cas. 741] Lord Selborne L.C. said: “The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense.” The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v. Daily Telegraph Ltd. [[1963] 2 All E.R. 151 (H.L.(E.))]. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.

As stated in R.E. Brown, The Law of Defamation in Canada, looseleaf, 2^nd ed. (Scarborough: Carswell, 1999) vol. 1, at pp. 5-4 and 5-5:

In determining whether a publication is capable of conveying a defamatory meaning, the court will be guided by the test of reasonableness. “Whether a publication is defamatory depends on the circumstances of publication and will vary with time and place.” [Per Eichelbaum J. in Short v. Kirkpatrick, [1982] 2 N.Z.L.R. 358 at 366 (H.C.)] The test is objective. It may be defamatory by virtue of the ordinary meaning of the words or because of extrinsic facts and circumstances known to the listener or reader that give it a meaning different from that in which it would ordinarily be understood. [See Botiuk v. Toronto Free Press Publications Ltd. (1995), 126 D.L.R. (4^th) 609 (S.C.C.)]

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 parceled 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. (See The Law of Defamation in Canada, vol. 1, at p. 5-49, and Leenen v. Canadian Broadcasting Corp. (2000), 48 O.R. (3d) 656 at 688 (S.C.J.))
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 The Law of Defamation in Canada, vol. 1, at pp. 5-55 to 5-62.)
While the meaning is to be taken from the article as a whole, that does not mean that individual statements cannot be seen as being defamatory statements in their own right. In this case, the plaintiff says that the entire article must be looked at, and the statements must be considered cumulatively in order to arrive at a conclusion that they connote an imputation of irresponsibility on his part. Similarly, it is alleged that the statements must be looked at individually to import to them meanings of immorality, dishonesty and incompetence. There is not much issue that the statements in the article are referable to Mr. Makow and would be seen as so by the ordinary reader. The first paragraph of the article is an introduction leading to no other conclusion.
Applying these principles to the statements in question, I have reached the following conclusions with respect to whether or not they are defamatory.
Statement no. 1:

1. I don’t know how old Michael’s children are but I suspect he would not want an 18-year-old daughter of his present in a first year English class taught by a 50-year-old man who announced one day he had beaten his ex-girlfriend (“she started it”) and afterwards they “had great makeup sex.”

While this statement does not identify Mr. Makow by name, given the reference to an English class and to a 50‑year-old man, the inference is that it refers to Mr. Makow. The meaning to be taken is that Mr. Makow, in class, made a statement that he had “beaten his ex-girlfriend (‘she started it’) and afterwards they ‘had great makeup sex.’ ” The tone of the statement with the words “I suspect he would not want an 18‑year-old daughter of his present in a first year English class” suggests a negative connotation to the words that are there. In other words, someone who is guilty of such conduct is engaged in reprehensible conduct. Reference to the beating of another individual is and should be viewed with reprobation. When the words suggest domestic violence, there is an added element of negative implication. In my view, under the circumstances and in the context of the article, the reasonable meaning to be ascribed to the statement is, namely, that Mr. Makow had admitted to beating his girlfriend and was an immoral, intimidating and incompetent person, unfit to retain his position.

Statement no. 2:

2. I sat down with one of those daughters Thursday morning, and the first thing she said to me was, “This has nothing to do with feminism. He’s blown this up into something about feminism. It’s about unprofessional conduct.”

This statement is a repetition of a comment made from someone that the author has interviewed. The opinion of that individual is that the dispute between the student and Mr. Makow is not about feminism, but about unprofessional conduct. The conduct is referable to Mr. Makow. An allegation of unprofessional conduct is, on its face, disparaging and likely to demean the individual in the estimation of his peers. The defendants acknowledged that the statement, on its face, was defamatory. I find that this statement is a defamatory statement in that it alleges unprofessional conduct on the part of Mr. Makow.

Statement no. 3:

3. Do you want your daughter asked in class and out of class (Makow questioned young women outside the classroom) when and how she lost her innocence?

The use of Mr. Makow’s name clearly indicates that the statement is referable to him and that he engaged in conduct involving questioning young women, both in and out of class, as to when and how they lost their innocence. The use of the word “innocence” in this context would have the connotation of loss of sexual innocence, although the word can have a different meaning. However, given the manner in which the question is phrased and in juxtaposition to the other negative statements in the article, I believe that a reasonable person would give the meaning to the word “innocence” that I have ascribed. In such manner, the meaning that is being proposed is that Mr. Makow was irresponsible or immoral in questioning young women, students of his, about their loss of virginity, an allegation which would not be proper conduct on the part of a competent university professor.

Statement no. 4:

4. Would you like your daughter to be asked in class, and again outside class, if a certain passage in a D.H. Lawrence novel aroused her?

Given the context of this statement, namely, that it followed a statement suggesting a certain line of questioning in class on loss of innocence, the suggestion is clearly that Mr. Makow would have asked, in and out of class, if a certain passage in a novel aroused a student. Such a highly suggestible question, when placed in the context of a question outside the classroom, alleges inappropriate conduct on the part of Mr. Makow. It also raises the suggestion that the question was directed to a student in particular, an issue that raises concerns as to inappropriate conduct on the part of a professor. Therefore, the meaning that a reasonable person would take from this statement is that Mr. Makow would have asked, in and out of class, whether a certain passage in a novel aroused a particular student, conduct that is inappropriate for a competent university professor. This statement, again placed in the context of the article, is clearly referable to Mr. Makow.

Statement no. 5:
Want her subjected to the statement that religious Jews and Muslims look ridiculous because of the way they dress?

The context attributes the statement to Mr. Makow. Alleging that he stated that religious Jews and Muslims look ridiculous because of the way they dress, leads to a meaning that Mr. Makow is a bigoted individual, and is defamatory.

Statement no. 6:
Want her in a class where the professor shouts at his students? Do you want her asked in class and out for details about her relationship with her boyfriend, if she happens to have one? Or in a class where the professor talks about his sex life?

This statement can be divided into three distinct elements: (a) Mr. Makow shouted at his students; (b) Mr. Makow, in and out of class, inquired of details about students’ relationships with their boyfriends; and (c) Mr. Makow, in class, would have spoken about his sex life. With respect to the suggestion of Mr. Makow shouting at his students, it would suggest to an ordinary person that he is an incompetent professor. A professor discussing with students their relationships, especially outside the classroom, would again be viewed by a reasonable person as an inference of inappropriate conduct. A similar conclusion would be reached by a reasonable person with respect to a professor openly discussing his sex life with his students. All three are disparaging and tending to diminish the individual in the eyes of his peers.

Statement no. 7:
Makow says everything he said got twisted. “It’s all a distortion.” The young woman I interviewed Thursday morning said it is Makow who twisted the situation.

I fail to see that a reference to Mr. Makow having twisted the situation is one which would lead a reasonable person to conclude that Mr. Makow was a dishonest person, which to me appears to be the only meaning which the plaintiff has advanced. I would not find that statement no. 7 is capable of a defamatory meaning.

Statements no. 8 and no. 9:
And why have I not named her? Because she’s afraid. So are the other women (a total of 11 young women instituted the initial complaint against Makow and they did so with the approval and knowledge of the majority of their classmates) who also do not want their names used.
“We have reason to be scared of him,” said the young woman, adding that she and her friends were indeed worried when Makow talked about beating his ex-girlfriend (even if it was her fault!).

In my view, these statements must be read together, not only because they are juxtaposed in the article, but also because they deal with the same subject matter, namely, whether the students had reason to fear Mr. Makow, leading to a suggestion that he was an intimidating individual. The defendants acknowledged that statement no. 9 is capable of having a defamatory meaning, although not acknowledging the same for statement no. 8. In my view, they must be looked at together and, when considered, a reasonable person would be left with a suggestion that Mr. Makow gave his students cause to fear him and, therefore, was an intimidating person.

Statement no. 10:
Nonetheless, the official letter of complaint was not anonymous. Seven young women signed it. The signature of the young woman I interviewed is on that letter.

By alleging that individuals had signed a letter of complaint and that it is referable to Mr. Makow is, on its face, defamatory if it is not true.

Statements no. 11 and no. 12:
I have a daughter, Michael Coren, and after the family doctor made inappropriate remarks and gestures to her, I wanted him disbarred or whatever the hell it is that is done with doctors.
I would feel the same way about a professor who made inappropriate unprofessional remarks to my daughter, in or out of class.

These statements must be read together. The defendants admit that statement no. 12 is capable of having a defamatory meaning. In my view, it is capable and does have a defamatory meaning in that it suggests that Mr. Makow has made inappropriate and unprofessional remarks, which were discussed earlier in the article and, according to the author, he should, therefore, be prevented from exercising his profession. It is also referable to Mr. Makow given the context of the article.

In summary, I have reached the following conclusions with respect to various statements:

Statement no. 1 — This statement is defamatory in that it states or infers that Mr. Makow announced in class that he had beaten his girlfriend, conduct that is inappropriate for a competent university professor.

Statement no. 2 — The meaning to be taken from statement no. 2 is that the conduct complained of by the student to whom the author has spoken is unprofessional conduct on behalf of Mr. Makow.

Statement no. 3 — The meaning to be taken from the words found in statement no. 3 is that Mr. Makow questioned young women, in and out of class, as to their loss of innocence, a comment that would not be appropriate for a competent university professor.

Statement no. 4 — The meaning to be taken from this statement is that Mr. Makow would have asked, in and out of class, whether a certain passage in a novel aroused a student, conduct that is inappropriate for a competent university professor.

Statement no. 5 — Mr. Makow would have stated that religious Jews and Muslims look ridiculous because of the way they dress, thereby leading a reasonable person to assume that he is a bigoted individual.

Statement no. 6 — The meaning of this statement is that Mr. Makow would have shouted at his students, asked, in and out of class, for details about students’ relationships with their boyfriends, and talked in class about his sex life, conduct which is not that of a competent university professor.

Statements no. 8 and no. 9 — These statements, in their ordinary and natural meaning, would suggest that Mr. Makow was an individual of whom the students had reason to be afraid, thereby implying that he was an intimidating person, and not competent to hold a position of lecturer.

Statement no. 10 — This statement, in its ordinary and natural meaning, suggests that Mr. Makow was someone of whom individuals complained, thereby implying that he was not a competent individual.

Statements no. 11 and no. 12 — These statements lead to the meaning that Mr. Makow made unprofessional remarks, in and out of class, which were inappropriate; therefore, he was an incompetent person, unfit to retain his position as a lecturer.

Given these conclusions, the article contains statements that are, in their context and in their ordinary meaning, defamatory. These statements, if believed, would tend to diminish Mr. Makow’s reputation amongst his peers and amongst the university population at large let alone the general public.
Given that finding, the next issue to consider is whether the defendants have proven the defences they have raised and which they have pursued to trial, namely, justification and fair comment.

JUSTIFICATION

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. See P. Milmo & W.V.H. Rogers, eds., Gatley on Libel and Slander, 9^th ed. (London: Sweet & Maxwell, 1998) c. 11.3. 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.
As stated in Gatley on Libel and Slander, supra, 9^th ed., at c. 11.7:

If the defendant proves that “the main charge, or gist, of the libel” is true, he need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable. “It is sufficient if the substance of the libellous statement be justified; it is unnecessary to repeat every word which might have been the subject of the original comment. As much must be justified as meets the sting of the charge, and if anything be contained in a charge which does not add to the sting of it, that need not be justified.”

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. In other words, in this case, the defendants’ counsel adduced a great deal of evidence with respect to Mr. Makow’s conduct occurring after his departure from the university. They provided evidence of Web sites and writings of Mr. Makow. This evidence was allowed for the purpose of the plea of justification. The defendants seek to advance that the imputation contained in the article that Mr. Makow is unfit to retain his position as a university lecturer can be obtained from his writings, positions taken on his Web sites, as well as his conduct referred to in the article.
The plaintiff adduced evidence in direct and in cross-examination concerning his view of the state of intellectual discourse at the University of Winnipeg where he was a lecturer and of the opinions or beliefs held by the majority of the university faculty and administration. His position was that his more traditional views were the cause of his dispute with the university administration, which supported a more feminist brand of beliefs. I heard evidence from Dr. Rooke, and attempts were made to cross-examine her on events occurring at the university which, in the plaintiff’s view, confirmed that the university faculty and administration held a view contrary to his.
In summary, the evidence with respect to the philosophical dispute is not of much help to the court in deciding the issues that need to be determined in this case. The article does not attack Mr. Makow for his views on feminism. The gist of the article is to put forward allegations of alleged misconduct by Mr. Makow, consisting primarily of statements made in class (some not), which would lead to the conclusion that he was not competent or fit to hold the position that he held. I will, therefore, not review in detail the evidence on this score, nor will I consider it with much weight in my deliberations. However, I have considered the arguments of counsel for the defendants regarding Mr. Makow’s conduct on the Web sites and in his writings, to the extent they go to the issue of justification.
The scope of the defence of truth or justification is set out in The Law of Defamation in Canada, vol. 1, at pp. 1-27 and 1-28, as follows:

A defendant may successfully defend an action for defamation if he or she can show that the defamatory publication is true. What is required is not the literal truth of each and every fact in the publication, but only that the whole of the defamatory matter is substantially correct. The justification must meet the gist or sting of the charge. The defendant will not succeed by showing that the plaintiff engaged in other conduct equally or more reprehensible; nor is it sufficient for the defendant to show that he or she relied on information supplied by someone else, even if the defendant honestly and reasonably believed that information to be true.

It is not sufficient justification to prove that the source of the information actually said is what the defendant repeated.
The defence of justification requires regard to be had for the setting, context and circumstances in which the words were used. Furthermore, the truth will be measured at the time of the publication of the article. In The Law of Defamation in Canada, vol. 2, at pp. 10-20 to 10‑27, it states:

… The words must be true when they are spoken. A plea of justification cannot be sustained solely by evidence that the acts charged against the plaintiff occurred after the publication. …

… However, it is not necessary to prove the truth of each and every word, or the literal truth, or “the truth of every fact” in the publication, if the additional facts do not constitute a separate defamatory imputation, and the justification otherwise meets the gist or sting of the charge.

Substantial truth is the test. “It is sufficient if the substance of the allegation is justified.” If the defamatory charge is true in substance, it is immaterial that there are slight inaccuracies in the details of the expression. The defendant must establish only that “the whole of the defamatory matter is substantially true”. This includes the specific charges that are made and any inferences of fact flowing from those charges.

It is the “sting” of the words that the defendant must justify. There may be some slight inaccuracies if they are not offensive or material, and the substance of the charge is true. Minor inaccuracies do not amount to falsity if the gist or sting of the defamatory charge is justified. …

Generally speaking, defamatory accusations cannot be justified merely by evidence that the plaintiff engaged in other types of conduct equally or more reprehensible in character. Under the common law, if a publication contains two or more separate and distinct allegations, the plaintiff is entitled to sue for any one or more of the allegations, and the defendant is not entitled to assert the truth of the others by way of justification. Thus, the accusation that the plaintiff is a thief and has stolen twenty pounds from the defendant is not justified by pleading that she stole two hens. However, such evidence should not be refused if the defamatory remarks about which the plaintiff complains are an integral part of other truthful remarks in the same publication. If the several defamatory allegations have a “common sting”, the court will not treat them as separate and distinct and the defendant is entitled to justify the common sting.

Applying those principles to the article in question leads me to the following conclusions. In my view, the article as a whole was an attempt by the author to lay examples of inappropriate conduct on the part of Mr. Makow, which would allow her to formulate the opinion at the end of the article that he was unfit for the position he held. The conduct consisted of statements allegedly made to his students during and out of class. Whether those statements were made by Mr. Makow in the manner which is alleged requires a factual determination.
I have concluded that only statements no. 2 and no. 11 and no. 12 are combined statements of fact and opinion while the remainder are statements of factual incidents.
According to her testimony, Ms Cockburn indicated that, for the most part, she received her information from one source, namely, Ms Feuer, the daughter of one of her colleagues. Ms Cockburn’s testimony was that it was common knowledge around the newsroom where she worked that Mr. Feuer’s daughter was one of the students who had complained of Mr. Makow’s conduct at the university. She contacted Ms Feuer and spoke to her. After she spoke to Ms Feuer, she contacted Mr. Makow and in a conversation with him, would have put to him some, but not all, of the information received from Ms Feuer. Thereafter, she relied upon some of the material that was already in the public domain, namely, previous articles written by her newspaper and the Winnipeg Free Press, and then wrote her article.
In order to be successful in their defence of justification, the defendants must prove that the statements, although based on information from a third party, are substantially true, for even if Ms Cockburn honestly believed the information to be accurate, that is not a defence to the plea of defamation.
In order to convince the court that the incidents were not fairly depicted in the article, the plaintiff called, apart from himself, seven students who had participated in his classes at the university. One student was from his afternoon class and her evidence, in my view, is not particularly relevant to the issues that I have to decide.
In response, the defendants called five student witnesses. After carefully reviewing all the evidence presented with respect to the statements and whether they accurately depict what occurred at the university between Mr. Makow and the students, I have reached the following conclusions:
Statement no. 1:

1. I don’t know how old Michael’s children are but I suspect he would not want an 18-year-old daughter of his present in a first year English class taught by a 50-year-old man who announced one day he had beaten his ex-girlfriend (“she started it”) and afterwards they “had great makeup sex.”

Those witnesses recognized the statement as something akin to what was discussed in class when the subject was Tennessee Williams’ play “A Streetcar Named Desire”. The play portrays one of the main characters as a man who physically abuses his wife. Mr. Makow steered the conversation towards his own personal life experience and related an incident as to when he was 19 years of age and had a fight with his then girlfriend.

The dispute arises as to how Mr. Makow described the events. In the plaintiff’s testimony, he indicated that his girlfriend had attacked him and he restrained her after which they “had great makeup sex”. In his view, it was an example of the interrelationship between violence and passion. He acknowledged that on his examination for discovery, his statement was somewhat different whereby he had indicated that his girlfriend had attacked him, had hit him, and he had hit her back in order to show her that she could not beat him up. On the discovery, he also indicated that they had made up and “had great makeup sex” afterward.
Most of the students called on behalf of the plaintiff recall the statement, particularly the last comment with respect to having “great makeup sex” after the event. None were able to recall it as being an incident where Mr. Makow described striking his girlfriend in the sense of administering a “beating”. A number of students testified that Mr. Makow had referred to having slapped his girlfriend but not to having beaten her. The evidence from witnesses called on behalf of the defendants is that Mr. Makow would have described using kung fu or martial art moves in order to subdue his girlfriend.
The plaintiff’s counsel drew a distinction between “beating” and “hitting” or “striking”. In his submission, the word “beating” has a much more negative connotation, associated with the concept of a more severe administration of force. The meaning of the word “beat”, as found in The Canadian Oxford Dictionary (1998), is “strike (a person or animal) persistently or repeatedly, esp. to harm or punish.” While I agree with counsel’s suggestion that if the word “beating” is given a literal interpretation, it may mean physical violence of a greater degree than “striking”. However, the gist of the defamatory statement, in my view, is that Mr. Makow struck someone as part of a domestic dispute. Some of his students took offence to his statement, at which time he would have responded, “she started it”.
With respect to this statement, what is important for the defendants to show in the presentation of their defence of justification is that Mr. Makow made a statement to the effect that he had been involved in physical violence against someone with which he was involved in a relationship. In reviewing all the evidence on this statement, I am satisfied that it is more likely that Mr. Makow referred to an event involving physical violence where he administered a physical blow upon his girlfriend as part of a disagreement they were having. In my view, this is, in substance, what the statement is saying. I am satisfied from the evidence that, in substance, Mr. Makow did make a statement similar to the one that is alleged he made and it is not being taken out of context.
Statement no. 2:

2. I sat down with one of those daughters Thursday morning, and the first thing she said to me was, “This has nothing to do with feminism. He’s blown this up into something about feminism. It’s about unprofessional conduct.”

While not identified by name in the article, this is a statement obtained from Ms Feuer, which was then reproduced in Ms Cockburn’s article. It is a reaction by Ms Feuer to the suggestion by Mr. Makow, on occasions when he was interviewed and perhaps to Ms Cockburn’s article, that this complaint was fueled by Mr. Makow’s position on feminism and its role at the University of Winnipeg. Ms Feuer was expressing a view that the complaint arises not because of Mr. Makow’s views on feminism, but because of what the complainants perceived as being unprofessional conduct. However, the message is clear that whatever conduct that is being ascribed to Mr. Makow, the conclusion is that he has acted unprofessionally. That is a demeaning statement and is referable to him. If the conduct did not occur, then the statement of opinion is an opinion based on unproven facts and cannot be justified on the basis of “truth”, although it may be defensible on the issue of fair comment, which I will return to later.

Statement no. 3:

3. Do you want your daughter asked in class and out of class (Makow questioned young women outside the classroom) when and how she lost her innocence?

The incident from which this statement appears to have taken root was during a discussion of the novel “Settlers of the Marsh” by Frederick Philip Grove. The central character in the novel was somewhat naïve and innocent. The discussion turned to the origins of innocence. Mr. Makow’s recollection is that he would have discussed the topic and inquired of the class in general as to whether the students could recall when one loses his/her innocence. In his view, this was seeking a comment relating to a loss of innocence concerning the world. For example, some of the students indicated that they would have volunteered a response relating to the time of their discovery that Santa Claus did not exist. However, one student, Alexa Rauscher, volunteered, according to Mr. Makow, that “after her first night she didn’t feel innocent”, or something to that effect. As a joke, Mr. Makow would have then quipped “tell us more”, and the topic was dropped.

The students called by the plaintiff referred to the incident as one where Ms Rauscher volunteered the information and there was no suggestion in Mr. Makow’s questioning that the information he was seeking was related to her loss of virginity. In their view, Ms Rauscher mistook the meaning of the question and responded in the fashion she did to her own embarrassment, which was treated in a jocular fashion by both Mr. Makow and the rest of the class.
The description from the students called by the defendants, and particularly Ms Rauscher, is quite different. Ms Rauscher’s testimony was that she had responded to the question with a comment that referred to the time when children found out about Santa Claus. Mr. Makow would have stated that was not what he was looking for and turned to her and said, “Gee, Alexa, when was the night you lost your innocence?”, with an emphasis on the word “night”. Such a question would leave no doubt that it was referring to the loss of her virginity. Ms Rauscher’s version of the event was supported by Ms Feuer and by Lea Gunner, although Lucie Dean, another student called on behalf of the defendants, could not recall the incident at all.
Given that Ms Rauscher was the person directly involved in the conversation while the other students were not directly involved, I find it appropriate to place more weight upon her testimony than those of the other students whose recollection of the event may be less vivid in that it was only a short period of time in a class sometime ago. Ms Rauscher, subjected to the questioning directly, would have more reason to have the conversation imprinted.
I accept Ms Rauscher’s version of the events over that of Mr. Makow and the other witnesses. I find that the statement was made in class, which supports the substantial truth of the statement as it relates to questions of students in class. However, the statement also makes reference as to students being asked outside the classroom how they have lost their innocence. There is no evidence that this ever occurred.
Counsel for the defendants have asked me to draw no distinction between whether the questions were asked in class or out. The issue, in their view, is whether or not the conduct occurred at all. I disagree. In my view, there is a particularly negative connotation that arises from a suggestion that a professor is acting inappropriately, not only in but also outside the classroom, towards his students, especially if there is a suggestion of sexually loaded questioning. To the extent that the statement alleges such out-of-class misconduct, the defendants have not proven justification.
Statement no. 4:

4. Would you like your daughter to be asked in class, and again outside class, if a certain passage in a D.H. Lawrence novel aroused her?

The D.H. Lawrence novel referred to was “Lady Chatterley’s Lover”. The fact that it was banned until the early 1960s as pornography was the subject of class discussion. One of the definitions of pornography raised whether the intent of the writer was to arouse sexually. According to Mr. Makow, the discussion proceeded on the intention of the author, and he would have asked as a general question to the class, “By the way, did it arouse?” In his view, it was relevant to the issue of whether it was pornographic. He did not, in his recollection, specifically inquire of any student, but asked the question in a general way to the class. He denied ever asking any student outside the classroom or referring to any specific novel or passage in a novel to any student outside the classroom.

Only one student remembered the question being asked of a specific individual, and her recollection was that it was asked of a male student. That student also recalled Mr. Makow suggesting that, “If anybody is saying it’s not arousing, you’re lying.” Ms Dean recalled a similar type of statement, but none of the witnesses called on behalf of the plaintiff recalled such a follow-up statement. Ms Feuer’s evidence was that the question was to the class as a whole, but did not recall the additional follow-on statement by Mr. Makow. Ms Cockburn’s evidence was that the information she received from Ms Feuer was that the question was asked of a specific student.
The fact that Ms Cockburn may have intended that the phrase referred to the questioning of a single student is not determinative. It is the meaning to be taken from a natural and ordinary sense of the phrase in the eyes of a reasonable person that must be considered. While the wording of statement no. 4 does not exclude the possibility that the question was asked of the class as a whole, the more reasonable interpretation is that it refers to the question being asked of a specific student, especially when the words “and again outside class” are included. It would not be reasonable to interpret the statement as suggesting that Mr. Makow was asking a general question outside the classroom. In short, I find the meaning of the statement to be whether or not a particular student was asked in class the question concerning a passage in D.H. Lawrence’s novel. While he did ask the question generally, that is not the meaning of the statement. In my view, they are not substantially the same.
The evidence does not satisfy me that Mr. Makow asked any specific student, in or out of class, whether he or she was aroused by a passage in a D.H. Lawrence novel.

Statement no. 5:
Want her subjected to the statement that religious Jews and Muslims look ridiculous because of the way they dress?

Mr. Makow denied that he had made such a statement. He testified that he may have stated that, as a reflection of their dedication to their religious beliefs, some individuals may dress in a manner different than the rest of the population. He would have said, according to Mr. Makow, that while such dress may “look ridiculous to us”, it is the way those individuals indicate that they do not care as to what the rest of the world is thinking.

Only two of the witnesses recalled such a statement in the manner in which it is suggested in the article. Ms Feuer and Marie Sampson both remember the comment. In the case of Ms Feuer, she recalls the use of the word “ridiculous”. Ms Sampson recalls the use of the word “stupid”. However, Ms Dean, called on behalf of the defendants, had no recollection of such a statement and indicated that she would have remembered had one been made. She also testified that she attended all the classes. The remainder of the witnesses do not recall a statement made in the manner described with racist overtones. Some did recall a statement with respect to the dress of religious groups, but not to the effect that they looked ridiculous.
The onus of proving the statement lies upon the defendants. On the evidence presented, they have not satisfied that onus.

Statement no. 6:
Want her in a class where the professor shouts at his students? Do you want her asked in class and out for details about her relationship with her boyfriend, if she happens to have one? Or in a class where the professor talks about his sex life?

The statement comprises three different elements, namely, an allegation that Mr. Makow (a) shouted at his students, (b) engaged in inappropriate conversations with students, in and out of class, with respect to their relationships, and (c) spoke about his sex life in class.

(a) Shouted at his students

The evidence with respect to Mr. Makow shouting in class is not very compelling. Ms Feuer testified that he shouted. Ms Gunner testified that he raised his voice. Three others, namely, Shelley Yea, Lucy Farias, and Morag MacLellan, testified that he never shouted or raised his voice. The remainder of the witnesses did not comment on the allegation or were not asked.
Mr. Makow came across as a very intense witness and litigant. During portions of the trial, he made extemporaneous comments from the counsel table and had to be advised to restrain himself. He displayed conduct that would suggest that he is excitable and quick to respond. Many of the students indicated that he was argumentative and some indicated that he did not take kindly to comments that were not in agreement with his views. Nevertheless, I cannot find on the basis of the evidence that the defendants have proven that Mr. Makow was in the habit of shouting, or even did on occasions shout, at his students in class. It should be borne in mind that this is a minor element of the conduct that is alleged to be unprofessional.

(b) Conversations as to relationships

The evidence with respect to this statement is primarily that of Ms Dean and Ms Sampson. Ms Dean testified to an incident in class where Mr. Makow was, by use of diagrams on the blackboard, attempting to make a distinction between qualities inherent in men as opposed to those in women. Ms Dean did not agree with the manner in which Mr. Makow had portrayed the characteristics and especially with comments that suggested that if women take on too many male characteristics, it tends to make them more masculine and leads to lesbianism.
After class, Mr. Makow asked Ms Dean questions as to whether she followed the traditions. (Ms Dean is of Aboriginal ancestry.) She indicated that, in her view, the traditions of her culture have strong male and female roles, unlike those that he had attempted to portray. Mr. Makow would have then inquired whether this affected her relationship with her husband. Ms Dean would have indicated that the conversation was not going to go in that direction, as it was personal. Mr. Makow’s version of the conversation is that he would have asked Ms Dean what her husband would have thought of her being a feminist. When she indicated that was a private matter, he did not pursue it.
Other evidence of discussions with respect to relationships is that of Ms Sampson. Ms Sampson testified that, at Mr. Makow’s request, she stayed after class to have a discussion on what she thought would be her marks and a paper that she had just written. Instead, the conversation turned to Ms Sampson’s situation. Ms Sampson, at the time, was a single mother with three children who had undergone a difficult separation due to family violence. The questions from Mr. Makow were related to how she raised her children, where their father was, how she paid for school, and who took care of her children when she was in school. She continued to answer, she said, because she thought that he was attempting to point out that she could not handle the course and it was too much for her.
Mr. Makow’s evidence was that the conversation did take place with Ms Sampson after class. In his view, she seemed to be struggling, and he asked her if she had a boyfriend to help her, to which she responded “yes”.
The gist of the “sting” with respect to this statement is whether Mr. Makow engaged in conversations with students, in and out of class, inquiring about “details” of their relationships. I accept the evidence of Ms Dean and Ms Sampson that he did. There is no evidence that students were questioned during class as to their relationships.

(c) Discussions as to his own sex life

While the only evidence of that score is Mr. Makow’s evidence concerning the fight he had with his girlfriend before having makeup sex, this is evidence that he did discuss a sexual experience of his. I do not take the meaning of that statement to be of a constant or regular discussion. In this case, the conversation with respect to the striking of his girlfriend and the “great makeup sex” is sufficient to prove that Mr. Makow did discuss the matter in his class.
Statements no. 8 and no. 9:
And why have I not named her? Because she’s afraid. So are the other women (a total of 11 young women instituted the initial complaint against Makow and they did so with the approval and knowledge of the majority of their classmates) who also do not want their names used.
“We have reason to be scared of him,” said the young woman, adding that she and her friends were indeed worried when Makow talked about beating his ex-girlfriend (even if it was her fault!).

The evidence to be considered with respect to these statements is two-fold. The first portion of the evidence is the evidence of Ms Dean. She testified that after these events occurred and Mr. Makow was involved in a dispute with the university and in this lawsuit, he sought out her support to testify on his behalf. As a result of his insistence and aggressive courting of her testimony, she refused to answer her door when he came and refused to answer e-mail that he sent to her. She indicated that she feared him and was afraid to answer. She did admit that conflict and confrontation are difficult for her to deal with.

Ms Feuer testified that when Mr. Makow wrote to her in April 2000 with respect to his refusal to agree to have her essays and exams marked by someone else, she took that as a threat from Mr. Makow that she would receive an “F” in the course in response to the complaint that she had filed. She testified that she was scared for her grades.
None of the other witnesses testified of fearing Mr. Makow either in or out of class.
When one looks at the combined statements no. 8 and no. 9, especially the last clause of statement no. 9 referring to Mr. Makow speaking of “beating his ex-girlfriend (even if it was her fault!)”, the gist of the suggestion is that Mr. Makow was intimidating and could be threatening physical violence. There is no evidence to that effect. Furthermore, the suggestion that the young women, who filed the complaint, did not name themselves, is only accurate with respect to the first anonymous letter. Four of the students did sign their names to the formal letter of complaint in March 2000. If the gist of the statement was to suggest that those who complained were fearful of being treated inappropriately in the marking of their essays and exams, that is not the meaning which is taken from a natural and ordinary sense of the statements.
In summary, I do not find that the defendants have proven the truth of the statements contained in no. 8 and no. 9.

Statement no. 10:
Nonetheless, the official letter of complaint was not anonymous. Seven young women signed it. The signature of the young woman I interviewed is on that letter.

I am satisfied from the evidence that there was an official letter of complaint and that it was not anonymous. Four individuals had signed it. While the statement that “[s]even young women signed it” is inaccurate, the sting, which is complained of, is the filing of the letter of complaint. In my view, the defendants have satisfied the onus that the justification of that statement as a substantial element of the sting has been proven.

Statements no. 11 and no. 12:

11. I have a daughter, Michael Coren, and after the family doctor made inappropriate remarks and gestures to her, I wanted him disbarred or whatever the hell it is that is done with doctors.

12. I would feel the same way about a professor who made inappropriate unprofessional remarks to my daughter, in or out of class.

The substance of these statements is that the author was of the view that since Mr. Makow made inappropriate remarks to his students, he should be removed from his position. This is a combination of statement of fact and statement of opinion. The statement of opinion, namely, that he should be removed, is based upon allegations that he made inappropriate remarks. If there is truth to these allegations, then the author is entitled to set forward a statement of opinion that those remarks should lead to his removal.

The only remarks that I have found were actually made by Mr. Makow are those in statements no. 1, no. 3 (in respect of comments in class), and no. 6(b) (in respect of questions outside the classroom) and no. 6(c).
As stated in The Law of Defamation in Canada, vol. 2, at pp. 10-19 and 10-20:

… Where the defamatory words are couched in the form of statements of fact and expressions of opinions, the defendant must prove that both are correct, unless of course a defence of fair comment is available. If the opinions, however, do not alter or change the principal thrust or sting of the defamatory comments, they will not defeat the defense of justification if the principal sting of the libel or slander is shown to be true.

It seems to me that in this case the reference in the last statement to inappropriate remarks is a reference to all the previous alleged statements of Mr. Makow. In my view, it requires the defendants to prove that Mr. Makow made the “inappropriate unprofessional remarks” in order to formulate the opinion. While they have proven that he made some, the defendants have not proven the substantial truth of all of them; therefore, they are not allowed to avail themselves of the defence of justification with respect to statements no. 11 and no. 12.
Nor am I satisfied, on the facts of this case, notwithstanding the vigorous cross-examination of Mr. Makow, that the defendants have proven, at the time of the article, that Mr. Makow was unfit to retain his position as a lecturer at the University of Winnipeg, which, in the submission of the plaintiff’s counsel, is the substance of the defamation.
The defendants, as part of their case, introduced a large amount of documentary evidence obtained from a Web site maintained by Mr. Makow (savethemales.com) and from articles which he had written for a Web organization entitled “Toogood Reports”, which describes itself as a magazine for right-thinking people. I was also provided with a copy of a book self-published by Mr. Makow entitled “A Long Way to go for a Date” in which Mr. Makow described the events leading him to meeting and marrying a young woman from the Philippines through what is called a mail order system.
In the Web site articles, Mr. Makow authors critical and very virulent commentaries against the University of Winnipeg, including its president, Dr. Rooke, expressing the view that the University of Winnipeg and its administration espouse feminist views that are inspired by Marxism and lesbianism. He attributes his problems at the university with his adherence to a traditional heterosexual view of the world, inconsistent and incompatible with the philosophy of feminists. In my view, these articles suggest that Mr. Makow has an obsession with gender roles and that he blames his problems upon his traditional views not being accepted by those who are now in a position of authority.
It is not in this court’s role to assess the validity of Mr. Makow’s views other than to the extent to which they may lead to a conclusion that he was unfit to carry on his occupation. Mr. Makow’s views appear to be out of keeping with contemporary political thought, and the nature of his writings may well lead to a conclusion by a right-thinking member of a university faculty that Mr. Makow would not be an appropriate choice to provide a balanced view of contemporary political issues. However, what I have to consider is whether the evidence satisfies me that, at the time of the publication of the libel, Mr. Makow was unfit to carry on his occupation as an English professor based upon the factors brought out in cross-examination. I am not satisfied that that is the case. It would certainly be open on the appropriate factual basis to question Mr. Makow’s competence as a university professor if all of the alleged statements were proven, but it is another thing to make a conclusive finding on a balance of probabilities that, at the time of the libel, he was not competent from the evidence adduced.
In this case, I am not satisfied that the defendants have been able to establish facts to avail themselves of the defence of justification with respect to the statements other than statements no. 1, no. 3 (in respect of comments in class), no. 6(b) (in respect of questions outside the classroom) and no. 6(c), and no. 10.

QUALIFIED PRIVILEGE

While the defendants raised the defence of qualified privilege in their pleadings, I was advised at trial that they were not pursuing that defence.

FAIR COMMENT

A summary of the defence of fair comment is found in The Law of Defamation in Canada, vol. 2, at p. 15-2:

Everyone is entitled to comment fairly on matters of public interest. Such comments are protected by a qualified privilege if they are found to be comments and not statements of fact, and are made honestly, and in good faith, about facts which are true on a matter of public interest. A comment is the subjective expression of opinion in the form of a deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof. In order to be fair, it must be shown that the facts upon which the comment is based are truly stated and that the comment is an honest expression of the publisher’s opinion relating to those facts. Where a comment imputes evil, base or corrupt motives to a person, it must be shown that such imputations are warranted by, and could reasonably be drawn from those facts. The comment must be made on a matter of public interest. It could be of public interest because of the importance of the person about whom the comment is made, or because of the event, occasion or circumstances that give rise to the opinion. The protection may be lost if it is shown that the comment was made maliciously, in the sense that it originated from some improper or indirect motive, or if there was no reasonable relationship between the comment that was made and the public interest that it was designed to serve.

As stated by our Court of Appeal in Winnipeg Steel Granary & Culvert Co. v. Canada Ingot Iron Culvert Co. (1912), 22 M.R. 576 at 582, per Cameron J.A.:

Everyone has a right to comment on matters of public interest provided he does so fairly and honestly and such comment, however severe, is not actionable.

In order to be successful, the defendants must meet the following criteria:

(a) the words objected to must be comment and not statement of fact;

the comment must be fair;
the comment must be on a matter of public interest.
It is not open to the defendants to allege that what was a statement of fact was merely an opinion. The distinction of what is a comment and what is a fact is not always easy to make. As stated in Gatley on Libel and Slander, supra, 9^th ed., at c. 12.6:

The distinction. The fundamental rule is that, subject to what is said below, the defence applies to comment but not to imputations of fact. If the imputation is one of fact the defence must be justification or privilege. However, the matter is complicated for two reasons: first, there may be difficulty in distinguishing comment and fact; secondly, a statement of fact which is an inference from other facts stated or referred to may be a comment for the purposes of the defence. Though “comment” is often equated with “opinion” this is an over-simplification. More accurately it has been said that the sense of comment is “something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.”. It is possible to distinguish at least three situations:

(1) A statement may be a “pure” statement of evaluative opinion which represents the writer’s view on something which cannot be meaningfully verified — “I do not think Jones is attractive”.

A statement which is potentially one of fact or opinion according to the context — “Jones’ behaviour was disgraceful”.
A statement which is only capable of being regarded as one of fact — “Jones took a bribe” — but which may be an inference drawn by the writer from other facts.
The second criterion is the factual basis upon which the comment is based, as stated by Fletcher Moulton L.J. in Hunt v. The Star Newspaper Company, Limited, [1908] 2 K.B. 309 at 320 (C.A.):

… [I]n order to give room for the plea of fair comment the facts must be truly stated. If the facts upon which the comment purports to be made do not exist the foundation of the plea fails.

Further, in Digby v. The Financial News, Limited, [1907] 1 K.B. 502 at 508 (C.A.), Collins M.R. stated:

… If the defendant makes a misstatement of any of the facts upon which he comments, it at once negatives the possibility of his comment being fair.

Therefore, if the facts are not capable of justification, then the comment cannot be seen as fair.
A defendant must set out the facts upon which the comment is made and they must be in existence at the time that the comment was made. See Cohen v. Daily Telegraph Ltd., [1968] 1 W.L.R. 916 at 919 (C.A.), per Denning M.R.
It is necessary to establish that all the facts relied upon are true. In The Law of Defamation in Canada, vol. 2, at pp. 15-51 and 15-52, it states:

… A necessary foundation for the defence of fair comment is the truth of the facts commented upon. It is not sufficient to show that some of the facts upon which the comment is made are true if some are also false.

See also Pearlman v. Canadian Broadcasting Corporation and Carlyle-Gorge (1981), 13 Man.R. (2d) 1 at 10 (Q.B); McLoughlin v. Kutasy, [1979] 2 S.C.R. 311 at 321; Australian Broadcasting Corporation v. Comalco Ltd. (1986), 68 A.L.R. 259 (F.C.), at paras. 119 and 120.

Furthermore, an opinion which might be fair comment will lose its protection if it is published maliciously. See Boland v. The Globe and Mail Ltd., [1961] O.R. 712 at 735 (C.A.), per Schroeder J.A. Such malice may be expressed or implied from the circumstances. See Christie v. Geiger (1984), 35 Alta. L.R. (2d) 316 (Q.B.), aff’d [1987] 1 W.W.R. 357 (C.A.).
Whether a matter is of public interest is not to be confined within narrow limits and may include a matter over which has gained considerable public notoriety or controversy or one that had been placed by the plaintiff himself before the public.
Dealing with the last issue first, I am satisfied that the matter was of public interest given the previous articles that had been written and the interviews granted by the plaintiff of his own accord to discuss the stand that he was taking, both at the university and before the Manitoba Human Rights Commission. The topic of his conduct at the university was clearly part and parcel of the issue surrounding his argument that he was not retained as a lecturer.
As to which statements are capable of being viewed as comments as opposed to statements of fact, I believe only statements no. 2, and no. 11 and no. 12 are capable of that designation. Statement no. 2 is a comment attributed to one of the students who stated that the issue is not about feminism but about unprofessional conduct. It is a statement of opinion expressed by the student based upon that student’s knowledge of the events and which has been repeated in the article. It accurately depicts the fact that the dispute between Mr. Makow and the students stems not from his views on feminism, but from their belief that he acted unprofessionally.
In statement no. 12, the author expresses her view concerning the treatment that should be afforded a professor who makes inappropriate and unprofessional remarks in or out of class. This is a statement of opinion. It is, however, predicated upon the statement of fact that inappropriate remarks had been made. Those remarks are a reference to the previous statements in the article, attributing certain conduct to Mr. Makow in and out of class.
For the reasons I have expressed before, the defendants have not satisfied the onus of proving that the inappropriate comments attributed to Mr. Makow were all made. There has only been partial justification. There has not been a finding that there is substantial truth to the statements of fact upon which the opinion is based. Accordingly, I do not believe that the comment made in statement no. 12 is a fair comment given that it is predicated upon statements which have not been proven to be true and must, therefore, be assumed as false.
Were the impression left with the reader that Mr. Makow should not be allowed to teach by reason of making those remarks set out in the statement of claim which I have found to have been made, that impression may have been sufficient to base a comment that such a person should no longer be allowed to remain a professor at the university. However, those were not the only statements of fact which form the basis of the opinion. The reader would be invited to assume the truth of the other facts which have not been proven in order to conclude whether the comment was capable of support or not.
For that reason, statements no. 11 and no. 12 do not fall within the defence of fair comment.

DAMAGES

Having found that the defendants published defamatory material referable to Mr. Makow and having found that the defences of fair comment and justification do not exonerate the defendants for their conduct, the next issue that must be considered is that of damages.
Generally speaking, as in any other tort, the main focus of the court awarding damages must be compensatory. In appropriate circumstances, compensatory damages may include special damages, meaning specific pecuniary damages that are clearly identifiable as having been caused by the defendants’ conduct; for example, as in a situation such as the plaintiff having lost earnings or employment income as a result of the defamation. No such damages have been claimed in this case. In this case, the plaintiff claims only for damages at large as a measure of compensation for the harm done to his reputation. See Ley v. Hamilton, [1935] 153 L.T. Rep. 384 at 386 (H.L.), per Lord Atkin.
In Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at 1205, Cory J., speaking for the court, stated:

… The assessment of damages in a libel case flows from a particular confluence of the following elements: the nature and circumstances of the publication of the libel, the nature and position of the victim of the libel, the possible effects of the libel statement upon the life of the plaintiff, and the actions and motivations of the defendants.

In Leenen v. Canadian Broadcasting Corp., supra, Cunningham J., after reviewing a number of cases dealing with the issue of damages, stated, at p. 728:

In attempting to arrive at the appropriate level of general damages in a defamation case, one must always be aware of not only the damage inflicted to a person’s reputation but also the fact that once damaged a reputation is very difficult to restore. Always mindful of the fine balance between freedom of speech and the protection of reputation, once the scales have been tipped through defamation, a plaintiff is entitled to be compensated not only for the injury caused by the damage to his integrity within his broad community but also for the suffering occasioned by the defamation.

Cunningham J. then proceeded to list a number of factors that may be considered in assessing the appropriate level of compensation. They include, for our purposes:

(a) the seriousness of the defamatory statement;

the identity of the accuser;
the breadth of the distribution of the publication of the libel;
republication of the libel;
the failure to give the audience both sides of the picture and not presenting a balanced review;
the conduct of the defendant and defendant’s counsel through to the end of trial;
the absence or refusal of any retraction or apology;
the failure to establish a plea of justification.
On the facts of this case, the nature of the defamatory statements ranges from a fairly innocuous allegation of shouting to what are more serious allegations in the case of a university professor, namely, accosting a female student outside the classroom, inquiring whether she had been sexually aroused by a passage in a novel, as well as suggestions of physical intimidation and an allegation of bigoted comments.
The identity of the accuser and the breadth of the distribution in this case are related. The defendants publish one of the major newspapers in the city and it is widely circulated. Furthermore, the article was republished in the newspapers run by the defendant corporation in London and Toronto.
As to the issue of whether an attempt was made to provide a balanced article, Ms Cockburn agreed, on cross-examination, that one of the purposes of her writing it was to present the perspective of the students who had complained of Mr. Makow’s conduct. She admitted to not giving Mr. Makow all the comments she relied upon in the article in order to respond. One of the acknowledged purposes of her writing the article was to continue a debate with Mr. Coren in order to stimulate readership.
At trial, the defence presented a vigorous defence of justification and was only partially successful in maintaining it. Part of the defence’s strategy was a deliberate attack on Mr. Makow’s competence as a university professor based largely upon the events which had taken place after the publication of the libel. The defence relied primarily on comments obtained from Mr. Makow’s Web site in order to argue that his views rendered him unfit to retain his position.
Some cases have recognized that amounts awarded for the defamation may be reduced substantially where a defendant almost succeeds on a plea of justification (see Pickels v. Lane (1913), 11 D.L.R. 841 (N.S. T.D.), aff’d (1914), 47 N.S.R. 465 (C.A.)), or where the plaintiff has not suffered any damage to his reputation because he previously enjoyed a notorious one. It is open to the defendants to argue that damages should be reduced if the plaintiff should not enjoy the reputation he believes he has. In Plato Films, Ltd. v. Speidel, [1961] 1 All E.R. 876 at 888 (H.L.), Lord Denning cited with approval from Starkie on Slander & Libel (2^nd Edn.) p. 88, as follows:

… He complains of loss of reputation, and that he has been deprived of his character by the act of the defendant. It is not the defendant, then, to be permitted to show that the plaintiff’s character was previously tainted … or that he had in fact little character or reputation to lose? To deny this, would be to decide that a man of the worst of characters was entitled to the same measure of damages with one of unsullied and unblemished reputation;…

(Referred to in Capitanescu v. Universal Weld Overlays Inc., [1997] A.J. No. 740 (Q.B.), var’d on other grounds [1999] A.J. No. 274 (C.A.))

As stated in The Law of Defamation in Canada, vol. 3, at pp. 25-149 to 25-152:

Damages for defamation may be reduced by evidence that the plaintiff already had a bad reputation.

It is true that it is the reputation that the plaintiff has, not the one that he wishes he had, which the law will protect. Damages may be reduced if it is shown that the plaintiff already has a bad reputation.

Therefore, a defendant may introduce evidence of the plaintiff’s general bad reputation in the community both before and at the time of the publication, relevant to the defamatory remark.

. . . . .

Evidence of particular acts of misconduct are not admissible in mitigation of damages, unless they are relevant to proof in support of a plea of justification, or they are “directly relevant to the context in which a defamatory publication came to be made”. [Per May L.J. in Burstein v. Times Newspapers Ltd., [2001] 1 W.L.R. 579 at 596 (C.A.)]

The onus is upon the defendants to prove that the plaintiff’s reputation at the time of the libel was so low that it could not be damaged any further. The law presumes that one starts with an impeccable reputation unless evidence is presented to the contrary. See Wiley v. Toronto Star Newspapers Ltd. (1988), 65 O.R. (2d) 31 (H.C.), var’d as to costs and aff’d (1990), 74 O.R. (2d) 100 (C.A.).
As discussed previously, the defendants, as part of their case, introduced a large amount of documentary evidence as to views expressed by Mr. Makow in the book he had written, a Web site he maintained, and articles he had published on other Web sites. The primary purpose of the admissibility of that evidence related to cross-examination on the issue of justification.
It is my understanding that Mr. Makow started the Web site after his difficulties with the university and the “Toogood Reports” date from a period of time from August 2001 onwards. While his book entitled “A Long Way to go for a Date” may have been written sometime in 2000, I am not aware of the exact date.
The question that this court must decide is whether the defendants’ evidence is proof that Mr. Makow had no reputation to lose. I received no direct evidence from any source on the reputation he enjoyed at the University of Winnipeg other than the complaints made by his students in the anonymous letter and in the complaint to the university. There were indications that his views were being made known by interviews he gave to the Winnipeg Free Press and The Winnipeg Sun. There is no other evidence of loss of reputation prior to the publication of the libel. It is the reputation before and at the time of the libel that must be considered, for after the libel, the risk is too great that the extent of the diminishment of the reputation is to a large part caused by the libel itself. See Jones v. Bennett (1967), 59 W.W.R. 449 (B.C. S.C.).
I am not satisfied from the evidence that it has been established that there had been a loss of reputation prior to the publication of the article in question in these proceedings.
The defence of justification, and only proving partial justification, renders the next step somewhat more complicated. As a general rule, maintaining a defence of justification, which is not supported, amounts to a republication of the libel and has a tendency to increase the damages awarded to the plaintiff. However, it may be a source of mitigation of damages if the accusations are partially justified. See Pamplin v. Express Newspapers Ltd. (No. 2), [1988] 1 All E.R. 282 (C.A.), and Burstein v. Times Newspapers Ltd., supra, at p. 600, per May L.J.
In this case, the defendants have been partially successful. In other words, I should assess the impact on Mr. Makow’s reputation of the statements of which the defendants have proven the truth, namely:
that Mr. Makow did acknowledge that he was involved in an incident where he engaged in physical violence with his girlfriend;
that Mr. Makow did inappropriately question a student as to the loss of her virginity;
that Mr. Makow did speak to students about their personal relationships outside the classroom;
that Mr. Makow did speak of his own sexual conduct; and
that the students had complained of the manner in which Mr. Makow conducted his class.

Taking those facts into consideration, the plaintiff should not be viewed as a university lecturer of unimpeachable character, but one whose reputation has been partially blemished.

In assessing the amount of general damages, in this case it is appropriate to consider the issue of aggravated damages. While there has not been a special plea for aggravated damages as is sometimes seen in pleadings, a claim for general damages can encompass a claim for aggravated damages in a situation where the damages are at large. See E. Bullen & S.M. Leake, Precedents of Pleadings, 12^th ed. by I.H. Jacob (London: Sweet & Maxwell, 1975) at 379.
As stated by Cory J. in Hill v. Church of Scientology of Toronto, supra, at pp. 1205-06:

Aggravated damages may be awarded in circumstances where the defendants’ conduct has been particularly high-handed or oppressive, thereby increasing the plaintiff’s humiliation and anxiety arising from the libellous statement. The nature of these damages was aptly described by Robins J.A. in Walker v. CFTO Ltd. [(1987), 59 O.R. (2d) 104 (C.A.)], in these words at p. 111:

Where the defendant is guilty of insulting, high-handed, spiteful, malicious or oppressive conduct which increases the mental distress — the humiliation, indignation, anxiety, grief, fear and the like — suffered by the plaintiff as a result of being defamed, the plaintiff may be entitled to what has come to be known as “aggravated damages”.

These damages take into account the additional harm caused to the plaintiff’s feelings by the defendant’s outrageous and malicious conduct. Like general or special damages, they are compensatory in nature. Their assessment requires consideration by the jury of the entire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial. They represent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant.

. . . . .

There are a number of factors that a jury may properly take into account in assessing aggravated damages. For example, was there a withdrawal of the libellous statement made by the defendants and an apology tendered? If there was, this may go far to establishing that there was no malicious conduct on the part of the defendant warranting an award of aggravated damages. The jury may also consider whether there was a repetition of the libel, conduct that was calculated to deter the plaintiff from proceeding with the libel action, a prolonged and hostile cross-examination of the plaintiff or a plea of justification which the defendant knew was bound to fail.

In the circumstances of this case, the factors to be considered are the nature of the defamatory comment, the manner in which the author obtained her information, the steps she took to confirm its accuracy, as well as the defence of justification advanced at trial. Ms Cockburn admitted that a major motivation in the writing of the article was to present the views of the complainants in contrast to the position in support of Mr. Makow taken by her colleague, Mr. Coren. She also admitted that the only true source of direct information was the interviews she conducted with Ms Feuer and with Mr. Makow. She admitted that during the interview with Mr. Makow, she did not put to him some of the allegations that she then printed.
Notwithstanding the lack of follow-up by Ms Cockburn, I am not ready to assign to the defendants malice of the nature required to make a finding of aggravated damages. Ms Feuer testified that what she would have informed Ms Cockburn was substantially similar to what Ms Cockburn would have written. Furthermore, previous articles in which Mr. Makow’s conduct was discussed would have given Ms Cockburn grounds to form the opinion she did in the preparation of her article. That does not justify a libel if the information she acted upon was not accurate, but is a consideration on the issue of whether her motivation was malicious.
In summary, I must assess damages on the basis that Mr. Makow was defamed when it was stated:

(a) that he had asked a young woman, outside the classroom, when and how she had lost her innocence;

that he had inquired of a student, in and out of class, as to whether she had been aroused by a particular passage in a novel;
that he would have alleged that religious Jews and Muslims look ridiculous because of the way they dress; and
that he would have intimidated students.
I must assess the loss of reputation caused by those statements together with the fact that Mr. Makow’s reputation would have been negatively affected by other statements that were proven true. Bearing these matters in mind, I have concluded that the plaintiff has not suffered as large a loss of reputation and, accordingly, I conclude that an appropriate assessment of general damages for loss of reputation in the circumstances of this case is $5,000.
Costs may be spoken to if they are not agreed upon.

Makow v. The Winnipeg Sun - Details

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