Unreported in Canada: the Globe and Mail’s fight to suppress freedom of the press

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You can be forgiven, dear Contrarian reader, for not knowing that a hearing last week in the Ontario Divisional Court sought to determine how far wrongdoers can go to suppress the freedom of those they have wronged to speak about the wrongdoings. And for not knowing that the wrongdoer in the case is Canada’s national newspaper, The Globe and Mail, or that the person wronged was once its most celebrated columnist, Jan Wong.

You can be forgiven because, in an revelatory display of unanimity, the Canadian news industry has suppressed coverage of the court battle. The sole exception* is a bilious piece of character assassination by National Post columnist Chris Selley, the sort of journalist who makes a fine living comforting the comfortable and afflicting the afflicted.

The case has a complicated background. Please bear with me. It’s important.

Wong’s days as the darling of Globe newsroom ended on September 16, 2006, when the Montreal-born writer had the effrontery to suggest, in a page-one feature about the recent Dawson College shooting, that racial and linguistic politics exercised by Quebec’s pure laine majority might inform our understanding of that province’s three notorious school shootings (École Polytechnique, Concordia University, and Dawson), all of which were perpetrated by Quebecers of immigrant heritage.

For this Wong received a torrent of hate messages, death threats, racist taunts, misogynist abuse, and in one case, a parcel containing actual shit. Quebec politicians and journalists competed to see who among them could scale the most vertiginous heights of dudgeon. They demanded apologies. They demanded demands for apologies from their Ottawa counterparts.

On September 20, the House of Commons obliged by unanimously condemning Wong and the Globe. Unanimously! (“An event so purely Stalinist, I still cannot quite believe it,” wrote the Star’s Heather Mallick.)

The Globe waffled, then caved. Managers ordered Wong to stop giving interviews. Editor Edward Greenspon, who had read her piece before publication, wrote a column expressing regret the offending passage had not been deleted. A expected promotion evaporated.

Abandoned by the Globe, facing a firestorm of abuse, Wong sank into depression. On doctor’s advice, she took time off. The Globe and its insurance company insisted she was faking. The Globe fired her. She sued for wrongful dismissal. The Globe settled, but in a wondrous display of journalistic integrity, insisted details of its capitulation remain secret.

Wong eventually recovered, and wrote a book about the experience. Days before publication, her publisher, Doubleday, got a call from the Globe’s lawyers and, after Wong refused to make massive deletions, dropped the project. (Doubleday insisted legal pressure from the Globe played no role in its decision.) Wong self-published. Out of the Blue became a best-seller, winning rave reviews.

The book included Wong’s disclosure that the Globe had sent her “a fat cheque.”  Arguing this violated the agreement’s confidentiality provision, the Globe persuaded an arbitrator to overturn the settlement and require Wong to return the money. Wong was in divisional court last week seeking to have that decision overturned. She was opposed by the Globe, and, astonishingly, by her former union, Unifor.

Two friends and former Globe colleagues of Wong who attended the trial have provided brief accounts. Faced with the failure of every other news outlet in the country to report on the hearing, they are all we have to go on.*

John King, a former Globe reporter who attended the hearing in support of Wong, summed up the proceedings on his Facebook page:

Jan Wong took her fight for the right to tell the story of her firing to the Divisional Court this week—facing a hostile tag team of lawyers from The Globe and Mail and the Unifor union. The court appeared to see Wong’s argument that the issue was not a simple labour matter to be sorted out in the context of bargaining, but involved her natural justice. If she wins—the court reserved judgment this afternoon—the decision would set a precedent in the cosy world of labour law.

(“Reserved judgment” means the court did not reach a decision; the judges will release their ruling later.)

John Saunders, another former colleague, provided more detail in an email, which I publish with his permission:

As a spectator to the day and a half of argument, I’d like to point out what is at stake for Jan. If she loses, the hit could be more than a quarter of a million dollars, including her entire departure settlement from the Globe and Mail, which the newspaper seeks to take back.

The amount of that settlement, which came out in open court, was about $209,000, representing two years’ salary. It is worth noting that she did not disclose the figure; it would still be secret but for the Globe’s legal campaign against her, a campaign based on the idea that she violated a confidentiality clause when she said she received a fat cheque.

If she loses, she will also face claims for legal costs of $25,000 each from the Globe and her former union, which joined forces to oppose her this week, although the court could reduce those amounts. (She paid them $7,500 apiece in an earlier stage of the fight.) This is not to mention thousands of dollars in expenses run up on her own behalf, even though her lawyers, from the Ottawa office of Borden Ladner Gervais, are working on a pro bono/contingency basis, meaning they charge her nothing for their time but do not object to collecting from the other side if they win.

The lawyers, David Sherriff-Scott and Peter Thompson, needed to persuade the three-judge panel to break new ground in labour arbitration law, authorizing an employee to direct her own defence when her union fails her. It remains to be seen whether they succeeded, but they did a masterful job, it seemed to me, and clearly got an interested hearing from the judges, who could have dismissed the case out of hand. (Their written ruling may be a month or more away.)

There were several strands to the argument, but the main one, as I understood it, was this: The union’s lawyer pursued a conventional and doomed line of defence, ignoring Jan’s pleas and large amounts of spadework done by her lawyers. Specifically, he failed to advance, or perhaps even to understand, a legal principle called equitable relief from forfeiture. That principle, the Ottawa lawyers argued, opens the way to examine such things as the Globe’s conduct (including what they called lies and intimidation aimed at suppressing her book about how the newspaper treated her) and what actual harm, if any, was caused by her disclosure that it paid her off.

No one knows whether any of this would change the outcome of the case, but Jan should be allowed to give it a shot, they said. One way the court could fix things, they submitted, would be to order a hearing before a new arbitrator in which she would be defended by a lawyer of her choice at the union’s expense. Or it could simply quash to existing order that she repay the Globe.

You can hear more about the background to Wong’s case in this interview by Jesse Brown on his Canadaland podcast, which provides badly needed critical coverage of Canadian media.

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* It’s possible I have missed some news accounts, but Selley’s screed is the only story that shows up in a Google News search. If readers point me to others, I will place links here.

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