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

[1] 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.

[2] 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

[3] 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.

[4] 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.

[5] 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.

[6] 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

[7] The issues which were before the court are as follows:

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

(b) 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?

(c) To the extent that the statements were statements of opinion, could the defendants avail themselves of the defence of fair comment?

(d) If any of the statements were defamatory and the defendants could not avail themselves of the defences, what damages flowed?

FACTUAL BACKGROUND

[8] 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.

[9] 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.

[10] 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.

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] The letter raised concerns in the following areas:

(a) pressure to conform to Mr. Makow’s beliefs in religion and politics;

(b) discussions of a personal nature on the topic of sex;

(d) attempts to instill his own views of religious beliefs;

(e) concerns as to how papers were being graded.

[16] The letter also contained a description of a discussion in class relating to:

(a) a dispute between Mr. Makow and his girlfriend, which he claimed was followed by great makeup sex;

(b) the inquiring of a student when she would have lost her innocence;

(d) the asking of students whether a certain passage in a novel aroused them.

[17] These are all issues that will become of relevance later.

[18] 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.

[19] On March 18, 2000, a formal complaint was prepared, signed by four students, and sent to Ms Levine, with a copy to Dr. Rooke.

[20] 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.

[21] 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.

[22] 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.

[23] 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.

[24] 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.

[25] 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.

[26] 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.

[27] 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.

[28] 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?

5. Want her subjected to the statement that religious Jews and Muslims look ridiculous because of the way they dress?

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?

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.

8. 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.

9. “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!).

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.

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.

[29] It was agreed during argument by the plaintiff’s counsel that statements no. 11 and no. 12 must be read together.

[30] 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

[31] 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.

[32] 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.

[33] 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.

[34] 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.)]

[35] 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.

[36] 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.))

[37] 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.

[38] 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.)

[39] 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.

[40] Applying these principles to the statements in question, I have reached the following conclusions with respect to whether or not they are defamatory.

[41] Statement no. 1:

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.

[42] Statement no. 2:

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.

[43] 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.

[44] 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.

[45] Statement no. 5:

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.

[46] Statement no. 6:

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.

[47] Statement no. 7:

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.

[48] Statements no. 8 and no. 9:

9. “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.

[49] Statement no. 10:

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.

[50] 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.

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.

[51] 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.

[52] 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.

[53] 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

[54] 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.

[55] 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.

[56] 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.

[57] 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.

[58] 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.

[59] 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.

[60] It is not sufficient justification to prove that the source of the information actually said is what the defendant repeated.

[61] 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.

[62] 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.

[63] 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.

[64] 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.

[65] 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.

[66] 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.

[67] 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:

[68] Statement no. 1:

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.

[69] 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.

[70] 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.

[71] 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”.

[72] 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.

[73] Statement no. 2:

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.

[74] 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.

[75] 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.

[76] 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.

[77] 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.

[78] 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.

[79] 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.

[80] 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.

[81] 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.

[82] 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.

[83] 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.

[84] Statement no. 5:

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.

[85] 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.

[86] The onus of proving the statement lies upon the defendants. On the evidence presented, they have not satisfied that onus.

[87] Statement no. 6:

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

[88] 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.

[89] 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

[90] 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.

[91] 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.

[92] 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.

[93] 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”.

[94] 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.

[95] 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.