Jeffrey MacIntosh, a law professor at the University of Toronto, alleged that a Globe & Mail story on the ups and downs of the leveraged buy-out of BCE Inc. in 2008 contained both misrepresentations and insider information, in violation of Ontario securities law (or possibly in violation, anyway), information on which he relied in deciding to sell his call options in BCE at a significant loss. In 1654776 Ontario Ltd v Stewart, 2012 ONSC 1991, MacIntosh (through his trading company) sought an order requiring the newspaper’s writer to disclose the identity of his confidential sources.
Belobaba J gave all of this pretty short shrift. Noting that the OSC had declined to investigate the matter in spite of the professor’s repeated urgings, the judge thought that most of the alleged violations of securities law probably weren’t violations at all; the best that could be said was that some of them might be. Any public interest in identifying the people who provided information for the article was clearly outweighed by the competing goal of preserving the confidentiality of a journalist’s sources. Good review of the requirements for a Norwich Pharmacal order and the Wigmore criteria for case-by-case privilege. Back to the library, professor.
[Link available here].