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Globe wins court fight over anonymous sources

The Globe and Mail should not be forced to identify the confidential sources cited in a story about the 2008 takeover bid for BCE Inc., the Ontario Court of Appeal has ruled.

In a decision released Wednesday, the court upheld a lower-court ruling in the case and supported protection for confidential sources as important for a free press, while stressing that this protection must be balanced against the other interests at stake.

The case was launched by Jeffrey MacIntosh, a University of Toronto law professor who lost $36,000 selling his BCE call options, or rights to buy BCE stock, after a June, 2008, story in The Globe. That story, citing confidential sources, said talks on a leveraged buyout of BCE were unlikely to conclude before Christmas. Four days later, BCE said a final agreement had been reached, although the deal would later fail.

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Mr. MacIntosh wanted The Globe to reveal its sources for a potential securities class-action lawsuit against BCE that alleges the leak of "misleading" information violated the Ontario Securities Act. The appeal court ruled that allowing The Globe to keep its sources secret would not preclude Mr. MacIntosh from pursuing his lawsuit.

Globe lawyer Peter Jacobsen said the newspaper was pleased with the decision: "It does again uphold the courts' support for promises of confidentiality in certain circumstances."

Mr. MacIntosh's lawyers said they had not decided whether to seek leave to appeal before the Supreme Court of Canada.

They pointed to a clause in the appeal decision warning those who engage in the "dangerous practice" of leaking material during sensitive corporate negotiations that their anonymity will not always be guaranteed.

"We're obviously disappointed with the result," said Douglas Worndl, one of Mr. MacIntosh's lawyers. "However, the court is trying to send a strong message that the kind of conduct that was engaged in is certainly not acceptable."

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About the Author
Toronto City Hall Reporter

Jeff Gray is The Globe and Mail’s Toronto City Hall reporter. He has worked at The Globe since 1998. From 2010 to 2016, he was the law reporter in Report on Business, covering Bay Street law firms and white-collar crime. He won an honourable mention at the National Magazine Awards for investigative journalism in 2010. More

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