|
Torts - Defamation (4). The Catalyst Capital Group Inc. v. West Face Capital Inc.
In The Catalyst Capital Group Inc. v. West Face Capital Inc. (Ont CA, 2023) the Court of Appeal considered messy, three-appeal litigation between private equity corporate actors.
In this quote the court makes the plain point that there is no defamation in reporting the fact of allegations by a third party:[45] The Dow Jones parties argue, and I agree, that the motion judge did not commit this error. The article does not contain a statement, from a first-person perspective, that the Catalyst parties had engaged in fraud. Whistleblowers made allegations of fraud to the OSC and to the TPS. The article reports this fact. That a reader is thereby exposed to the idea that third parties believe the Catalyst parties to have committed fraud does not make the reporting of the allegation defamatory. The law of defamation presumes that a reasonably thoughtful and informed reader understands the difference between allegations and proof of guilt: Guergis v. Novak, 2013 ONCA 449, 116 O.R. (3d) 280, at para. 57. See also Miguna v. Toronto (City) Police Services Board, [2004] O.J. No. 2455, at paras. 3‑4, aff’d [2005] O.J. No. 107 (C.A.) and Frank v. Legate, 2015 ONCA 631, 390 D.L.R. (4th) 39, at para. 40.
[46] Further, the motion judge was persuaded that the WSJ article satisfied the four factors for reportage from Grant v. Torstar, at para. 120: (1) the report attributes the statements made to an identified person; (2) the report indicates that the truth of the claim has not been verified; (3) the report sets out both sides of the dispute fairly; and (4) the report provides the context in which the statements were made. . 40 Days for Life v. Dietrich
In 40 Days for Life v. Dietrich (Ont CA, 2023) the Court of Appeal considers an amicus intervention by the CCLA on a 'location of expression' (ie. internet) defamation issue:[14] On the first issue, the CCLA proposes to provide a roadmap for applying the existing traditional jurisprudence on the location of expressive activity (i.e. the principle that whether the speech takes place in a private as opposed to a public forum is important to assessing whether to restrain the speech) to the virtual environment. While protests have traditionally occurred “in the streets”, protest activity is increasingly moving online. The CCLA wishes to provide insight about whether, and to what extent, freedom of expression ought to be protected within the online world and the appropriate way to consider the location of expression when courts are dealing with motions to restrain expression, as with s. 137.1 motions. . Hansman v. Neufeld
In Hansman v. Neufeld (SCC, 2023) the Supreme Court of Canada considers the 'fair comment' defence to a defamation suit:[8] The fair comment defence asks whether a person could honestly hold the views Mr. Hansman expressed and whether Mr. Hansman’s statements related to a matter of public interest and were recognizable as comments based on facts. ... The court's extended analysis on fair comment runs to paras 95-119.
. Hansman v. Neufeld
In Hansman v. Neufeld (SCC, 2023) the Supreme Court of Canada reviewed the SLAPP developments in Canadian defamation law:[1] At the core of defamation law are two competing values: freedom of expression and the protection of reputation. Each is essential to maintaining a functional democracy. This appeal presents an opportunity to clarify the proper equilibrium between these two values where the expression at issue relates to a matter of public interest.
[2] Defamation suits are a way to vindicate an individual’s personal or professional reputation in the face of attack, but can have the undesirable effect of suppressing the open debate that is the cornerstone of a free and democratic society. For this reason, certain provincial legislatures have targeted strategic lawsuits against public participation (SLAPPs), or actions that disproportionately suppress free expression on matters of public interest. This case concerns the application of s. 4 of British Columbia’s anti-SLAPP statute, the Protection of Public Participation Act, S.B.C. 2019, c. 3 (PPPA).
[3] The defamation suit at the heart of this proceeding arises out of a high‑profile public debate — spanning traditional print media, the internet, rallies, protests, and a local election — on British Columbia’s efforts to combat discrimination against transgender and other 2SLGBTQ+ youth.
[4] The parties are both local public figures. Barry Neufeld, a public school board trustee in Chilliwack, British Columbia, made online posts criticizing a provincial government initiative designed to equip educators to instruct students about gender identity and sexual orientation. Mr. Neufeld’s posts triggered significant local controversy, spurring protests and calls for Mr. Neufeld to resign. Many considered his comments to be derogatory of transgender and other 2SLGBTQ+ individuals. Glen Hansman, a gay man, teacher, and former president of the British Columbia Teachers’ Federation (BCTF), a large teachers’ union in the province, was prominent among the dissenting voices and made statements to media. Mr. Hansman called Mr. Neufeld’s views bigoted, transphobic, and hateful; accused him of undermining safety and inclusivity for transgender and other 2SLGBTQ+ students in schools; and questioned whether he was suitable to hold elected office.
[5] Mr. Neufeld sued for defamation. Mr. Hansman then applied to have Mr. Neufeld’s defamation action dismissed as a SLAPP under s. 4 of the PPPA. The core feature of the PPPA is that it instructs courts to dismiss even meritorious claims where the public interest in protecting the defendant’s freedom of expression outweighs the public interest in remedying the harm done to the plaintiff. It also requires the plaintiff to meet a merits threshold by demonstrating grounds to believe that the underlying proceeding has substantial merit and that the defendant has no valid defence in the proceeding.
[6] The chambers judge found that Mr. Neufeld’s defamation action had the effect of unduly suppressing debate on matters of public interest and dismissed the suit (2019 BCSC 2028, 59 C.C.E.L. (4th) 205). The chambers judge held both that Mr. Hansman had a valid fair comment defence and that the value in protecting his expression outweighed the resulting harm done to Mr. Neufeld. The Court of Appeal disagreed on both counts and reinstated the action (2021 BCCA 222, 50 B.C.L.R. (6th) 217).
[7] I agree with the chambers judge. Mr. Neufeld argued in the courts below and in this Court that he only criticized a policy; he never expressed hatred towards the transgender community, nor did his words create an unsafe school environment for transgender students. But his submissions miss the mark. Mr. Neufeld’s right to criticize a government initiative is not in dispute. Rather, the central issue is whether Mr. Hansman had a right to respond to Mr. Neufeld in the way he chose without the threat of civil liability. In my view, he did.
[8] The fair comment defence asks whether a person could honestly hold the views Mr. Hansman expressed and whether Mr. Hansman’s statements related to a matter of public interest and were recognizable as comments based on facts. The chambers judge found that Mr. Neufeld did not adequately challenge any of these elements and he was entitled to dismiss the proceeding on this basis.
[9] Even if Mr. Neufeld had discharged his burden as to the fair comment defence, however, the chambers judge was entitled to dismiss the defamation claim because the public interest in protecting Mr. Hansman’s expression is not outweighed by the limited harm to Mr. Neufeld. Mr. Hansman’s words were not a disproportionate or gratuitous response to Mr. Neufeld’s statements, and there is a substantial public interest in protecting his counter-speech. Mr. Hansman spoke out to counter expression that he and others perceived to be discriminatory and harmful towards transgender and other 2SLGBTQ+ youth — groups especially vulnerable to expression that reduces their worth and dignity in the eyes of society and questions their very identity. Not only does protecting Mr. Hansman’s expression preserve free debate on matters of public interest, it also promotes equality, another fundamental democratic value.
....
[52] Given the substantial similarity between the Ontario and British Columbia laws, this Court’s interpretation of s. 137.1 in Pointes and Bent applies with equal force to s. 4 of the PPPA. . Thatcher-Craig v. Clearview (Township)
In Thatcher-Craig v. Clearview (Township) (Ont CA, 2023) the Court of Appeal considered a feature of defamation law pleading:[52] It is a requirement of a defamation claim that the words complained of must be identified, together with their alleged defamatory meaning and any alleged innuendo arising from them: Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, loose-leaf, 2nd ed., (Toronto: Thomson Reuters, 2017), at para. 19.4; see also Peter A. Downard, The Law of Libel in Canada, 5th ed., (Markham: LexisNexis Canada, 2022), at para. 3.02. The prohibition against amending the claim once the motion is commenced arises from the strict pleading requirements of a defamation claim. . Thatcher-Craig v. Clearview (Township)
In Thatcher-Craig v. Clearview (Township) (Ont CA, 2023) the Court of Appeal considered a characterization of qualified privilege in defamation law, and the scope of the occasions to which it applies:The Defence of Qualified Privilege
[55] The basic principles that constitute the defence of qualified privilege were recently restated by the Supreme Court of Canada in Bent v. Platnick, at paras. 121-122:An occasion of qualified privilege exists if a person making a communication has “an interest or duty, legal, social, moral or personal, to publish the information in issue to the person to whom it is published” and the recipient has “a corresponding interest or duty to receive it”. Importantly, “[q]ualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself”. Where the occasion is shown to be privileged, “the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff”. However, the privilege is qualified in the sense that it can be defeated. This can occur particularly in two situations: where the dominant motive behind the words was malice, such as where the speaker was reckless as to the truth of the words spoken; or where the scope of the occasion of privilege was exceeded. For this reason, a precise characterization of the “occasion” is essential, as it becomes impressed with the limited, qualified privilege, which in turn becomes the benchmark against which to measure whether the occasion was exceeded or abused. [Citations omitted.]
....
Does qualified privilege apply? What is the scope of the privileged occasion?
[58] “Canadian and English authorities have long applied the concept of qualified privilege…to speech uttered during the course of a municipal council meeting”: Gutowski v. Clayton, 2014 ONCA 921, 124 O.R. (3d) 185, at para. 6, citing Prud’homme v. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R. 663; Ward v. McBride (1911), 24 O.L.R. 555, 20 O.W.R. 93 (Div. Ct.); Baumann v. Turner (1993), 1993 CanLII 6860 (BC CA), 105 D.L.R. (4th) 37, 82 B.C.L.R. (2d) 362 (C.A.), at p. 53; Wells v. Sears, 2007 NLCA 21, 264 Nfld. & P.E.I.R. 171, at paras. 13 and 16, leave to appeal refused, [2007] S.C.C.A. No. 233; Leger v. Edmonton (City) (1989), 1989 CanLII 3281 (AB KB), 63 D.L.R. (4th) 279, 100 A.R. 196 (K.B.), at p. 284; Horrocks v. Lowe, [1975] A.C. 135, [1974] 1 All. E.R. 622 (H.L.), at p. 152 A.C. That privilege has been applied not only to municipal councillors but also to communications to council from a constituent: Lemire v. Burley, 2021 ONSC 5036, at para. 100; Niagara Peninsula Conservation Authority v. Smith, 2017 ONSC 6973.
....
[70] In my view, the motion judge erred in his approach by improperly narrowing the occasion from one grounded in public participation and municipal transparency in local land use planning to one defined by technicalities of the particular process. In Bent v. Platnick, the court focused on the principle that the privilege, based on the reciprocal duty or interest of communicating and receiving information, is grounded in “the social utility of protecting particular communicative occasions from civil liability”: at para. 124. Similarly, in RTC Engineering Consultants Ltd. v. Ontario (2002), 2002 CanLII 14179 (ON CA), 58 O.R. (3d) 726, 156 O.A.C. 96 (C.A.), at para. 16, this court explained that the reciprocal duty or interest “should not be viewed technically or narrowly”.
[71] The motion judge erred by failing to define the scope of the occasion, or to the extent he considered it, he took a narrow technical approach rather than focusing on the social utility of protecting the communication from civil liability in the context of the municipal planning process and the public’s role in that process.
[72] It therefore falls to this court to define the occasion to which the qualified privilege attaches in the circumstances of this case. I conclude that qualified privilege attaches not only to council meetings but to the entire public planning process including the material received in response to the respondents’ application and posted on the Township’s publicly available website.
....
[75] In Bent v. Platnick, the Supreme Court of Canada explains, at para. 128:Qualified privilege may be defeated when the limits of the duty or interest have been exceeded. This is the case when the information communicated in a statement is not relevant to the discharge of the duty or the exercise of the right giving rise to the privilege, or when the information is not reasonably appropriate to the legitimate purposes of the occasion.[2] [Citations omitted.] ....
[82] The fact that the letters contain negative comments about the respondents and their operation does not make them irrelevant and does not result in the loss of the protection. As noted by the Supreme Court in Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 30:The defences of absolute and qualified privilege reflect the fact that “common convenience and welfare of society” sometimes requires untrammelled communications. The law acknowledges through recognition of privileged occasions that false and defamatory expression may sometimes contribute to desirable social ends. [Citations omitted.] ....
(c) Conclusion on the defence of qualified privilege
[91] The motion judge erred in law by failing to define the occasion of qualified privilege, as required by the Supreme Court of Canada jurisprudence in Bent v. Platnick, or by defining it in a narrow and technical fashion. He further erred by finding that if qualified privilege applied, the posted comments exceeded the privilege. . Safavi-Naini v. Rubin Thomlinson LLP
In Safavi-Naini v. Rubin Thomlinson LLP (Ont CA, 2023) the Court of Appeal considers qualified privilege in a defamation case:[27] In Bent v. Platnick, 2020 SCC 23, the Supreme Court of Canada said, at para. 121, that qualified privilege exists “if a person making a communication has an interest or duty, legal, social, moral or personal, to publish the information in issue to the person to whom it is published” and the recipient has “a corresponding interest or duty to receive it”. The respondents had a duty to NOSM to complete the investigation and to provide their report to NOSM, and NOSM had a corresponding interest or duty to receive it. The respondents’ provision of the Executive Summaries to NOSM’ falls squarely within this privilege. . PMC York Properties Inc. v. Siudak
In PMC York Properties Inc. v. Siudak (Ont CA, 2022) the Court of Appeal considered the 'modern, flexible approach' to defamation pleadings for defamation. Here the CA allowed an appeal from the Divisional Court and upheld the motion judge's ruling [para 35-63].
|
