The Ontario Court of Appeal has allowed the identity of a media source within a corporation to remain secret in a related civil action. The Court has made clear, however, that in future cases disclosure of secret corporate sources may be required.
"This was a difficult case," Justice Juriansz stated in 1654776 Ontario Limited v. Stewart and The Globe and Mail Inc.1 "Corporate executives who engage in the dangerous practice of providing journalists with information anonymously during the course of sensitive negotiations should understand the courts may not uphold a journalist's assurances of confidentiality."2
In Stewart, the numbered company was the plaintiff in a proposed class action under the Securities Act. After The Globe and Mail reported that a leveraged buy-out of BCE Inc. would be delayed for a lengthy period of time, the value of BCE securities fell. The plaintiff disposed of BCE securities at a loss. Shortly thereafter, BCE announced that the transaction would proceed. The value of the securities rebounded.
The plaintiff claimed the Globe's sources had misrepresented the status of the BCE negotiations to the Globe for their own advantage. The plaintiff said it relied on the sources' statements in disposing of its BCE securities, and sought damages. It brought an application for an order requiring the Globe to disclose the sources' identities. The newspaper resisted, as its reporter had promised the sources their identities would remain secret.
It has been established that in an application for discovery of third party information in civil litigation, a party must show that (1) it has a bona fide claim, which is not frivolous or a mere 'fishing expedition'; (2) the party from whom disclosure is sought is somehow involved in the acts complained of, even though it...
