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Simon Shields, LLB

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Tort - Defamation - Fair Comment

Tort - Defamation - Remedies - Injunction

St Lewis v Rancourt (Ont CA, 2015)

In this case the Court of Appeal set out the elements of the defence of fair comment in defamation cases:
[7] The defence of fair comment requires that the defendant establish that the impugned statement was (1) a comment and not a statement of fact; (2) based upon true facts; (3) on a matter of public interest; (4) able to satisfy an objective test of fairness; and (5) made without malice: Simpson v. Mair, 2008 SCC 40 (CanLII), [2008] 2 S.C.R. 420, at para. 1.
It further considered when an injunction was an appropriate remedy in a defamation case:
[13] The trial judge correctly noted the situations in which permanent injunctions have been consistently ordered after defamation proceedings, as identified in Astley v. Verdun, 2011 ONSC 3651 (CanLII), 106 O.R. (3d) 792. Chapnik J. wrote in Astley, at para. 21:
Permanent injunctions have consistently been ordered after findings of defamation where either: (1) there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that he is liable to the plaintiff for defamation; or (2) there is a real possibility that the plaintiff will not receive any compensation, given that enforcement against the defendant of any damage award may not be possible... [Citations omitted.]
[14] The trial judge concluded that, on either branch of Astley, the respondent had demonstrated the need for a permanent injunction. With respect to the first branch, the trial judge found that the appellant had demonstrated a total disregard for the judicial process and that his conduct, before and during the trial, made it more probable than not that he will continue to defame the respondent. With respect to the second branch, the trial judge found that there was no reasonable prospect that the appellant would be able to pay the damage and cost awards.

[15] The injunction ordered by the trial judge –preventing any defamatory statement - was broad. In his reasons, he said this:
The draft order submitted by the [respondent] is reasonable. It only forbids the [appellant] from publishing defamatory statements, not about stopping to blog whatsoever. It is not, as claimed by the [appellant], a silencing of him. He can easily avoid breaching the injunction by simply refraining from publishing defamatory statements.
[16] A broad ongoing injunction is an extraordinary remedy which should be used sparingly. However, where there has been a campaign of defamation and a likelihood that it will continue, there is authority for such an order. See: Barrick Gold Corp. v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416 (C.A.), at para. 78; Astley, at para. 35; Ottawa-Carleton District School Board v. Scharf, [2007] O.J. No. 3030 (S.C.), at para. 30(b), aff’d 2008 ONCA 154 (CanLII), leave to appeal refused, [2008] S.C.C.A. No. 285. Under these circumstances, we would not interfere with the terms of the trial judge’s order.

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