|
Torts - Defamation (5). Warman v. Kay
In Warman v. Kay (Div Court, 2024) the Divisional Court states the basics of a defamation claim:The elements of a defamation action
[23] In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28, the Supreme Court of Canada held that a plaintiff in a defamation action is required to prove three elements:a. that the words were defamatory in that they would tend to lower the plaintiff’s reputation in the eyes of the reasonable person;
b. that the impugned words referred to the plaintiff; and
c. that the impugned words were published, meaning that they were communicated to at least one person other than the plaintiff. [24] The focus of Mr. Warman’s first two grounds of appeal is on the second element, that is whether Mr. Warman established that the impugned words referred to him. . Volpe v. Wong-Tam
In Volpe v. Wong-Tam (Ont CA, 2023) the Court of Appeal usefully lists defamation defences:[54] All that remains, then, is to consider the defences advanced with respect to the defamation action: justification, fair comment, qualified privilege, statutory immunity, and responsible communication. ... . Mondal v. Kirkconnell
In Mondal v. Kirkconnell (Ont CA, 2023) the Court of Appeal considered appeals from two SLAPP motions, both of which resulted in the dismissal of the actions.
Here the court considers the issue of defamation damages, particularly 're-publication' of the defamatory content by the defendant:[80] Evans-Bitten argues that the appellant’s losses are too remote to establish causation, but the argument overstates things considerably. As the Supreme Court stated in Bent, at para. 152:A defendant can be liable for each republication of their initial publication in at least three situations: (i) if the defendant has authorized the republication; (ii) if the republication is the “natural and probable consequence” of the defendant’s initial publication; and (iii) if the republication was foreseen or reasonably foreseeable by the defendant. [Citation omitted.] Evans-Bitten used hashtags – links that brought her tweets to the attention of people beyond her followers – and engaged with the Guelph Family Health Team’s Twitter account in an apparent attempt to increase the reach of her tweet. She must be taken to have intended her tweet – and tweeting history – to be shared, and it was shared by the respondents Kirkconnell and Smith. Again, it must be emphasized that causation is being determined only in a preliminary manner for the purposes of s. 137.1(4)(b). As Pointes confirms, at para. 71, “no definitive determination of harm or causation is required” at the s. 137.1(4)(b) stage. The appellant is required only to provide evidence permitting the court “to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link”. He has succeeded in doing so. . Bell v. Garden River First Nation
In Bell v. Garden River First Nation (Ont CA, 2023) the Court of Appeal dismissed a plaintiff's defamation appeal where the trial judge found the impugned statement to be true. The case demonstrates simply (contrary to popular belief) that 'defamation' may occur by the statement of truth, and that truth can constitute the defence of 'justification':[3] The respondents – the Council and the two councillors who had made and seconded the Censure Motion – brought a summary judgment motion. The summary judgment motion judge found the Censure Motion was prima facie defamatory. However, the motion judge further found that Ms. Bell did in fact share false and misleading information in her Facebook post as the Censure Motion had stated. Since the defamatory statement was true, the defence of justification was available to the respondents. The motion judge was satisfied there was no genuine issue for trial in respect of the justification defence and dismissed Ms. Bell’s action. . Caplan v. Atas [see the main link for numbered case cites]
In Caplan v. Atas (Sup Ct, 2021) the Superior Court finds a new tort, that of 'internet harassment'. In this quote the court reviews the libel notice requirements of the Libel and Slander Act [s.5(1)], focussing on their application in an internet harassment context:(a) Libel and Slander Act, ss.5(1) and 6
[145] In her defence to the Caplan Action, Atas pleads that the notice provisions under s.5(1), and the time provisions of s.6 of the LSA apply in these circumstances. I do not accept that argument.
[146] Section 5(1) of the LSA requires notice of any action for libel in a “newspaper” or in a “broadcast” to be delivered within 6 weeks:No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.[48] [147] Section 1(1) of the LSA defines “broadcasting” and “newspaper”:“broadcasting” means the dissemination of writing, signs, signals, pictures and sounds of all kinds, intended to be received by the public either directly or through the medium of relay stations, by means of,
(a) any form of wireless radio electric communication utilizing Hertzian waves, including radiotelegraph and radiotelephone, or
(b) cables, wires, fibre-optic linkages or laser beams,
“newspaper” means a paper containing public news, intelligence, or occurrences, or remarks or observations thereon, or containing only, or principally, advertisements, printed for distribution to the public and published periodically, or in parts or numbers, at least twelve times a year.[49] [148] In addition, s.7 of the LSA geographically limits its application to Ontario:Subsection 5(1) and section 6 apply only to newspapers printed and published in Ontario and to broadcasts from a station in Ontario. [149] For the notice requirement of section 5(1) to apply to this case, the online postings would need to meet the definition of “broadcast” under the LSA. Social media websites are not “newspapers.”
[150] The LSA contains a technical and exhaustive definition of “broadcast,” which, when passed in 1958, was intended to cover publications on radio and television. The Supreme Court of Canada in Reference re Broadcasting Act,[50] found that an internet communication was not necessarily a “broadcast,” and refused to include internet service providers within the statutory definition of “broadcasting” in the federal Broadcasting Act.
[151] The Courts have repeatedly held that, due to the technical language of “broadcast,” expert evidence is required for the Court to determine whether any technology, including the internet, meets the definition of “broadcast.”[51]
[152] This approach was confirmed recently by the Divisional Court, in Nanda v McEwan, where the issue involved the application of the LSA to defamatory postings on the social media application ‘Whatsapp’. Having reviewed the case law on this issue, Justice Ricchetti stated:These authorities make it clear that there must be clear, ample evidence for the court to make the determination whether the distributed statement(s) at issue in the particular case constituted a "broadcast" under the Act.[52] [153] In St. Lewis v. Rancourt, the trial court held that the limitation period under section 5 of the LSA only applied only to newspapers printed and published in Ontario and to broadcasts from a station in Ontario and did not apply to defamatory blogs posted on the internet. On appeal the Court of Appeal held:The appellant submits that, pursuant to s. 5(1) of the Libel and Slander Act…, the respondent was required to serve a notice of libel within six weeks of acquiring knowledge of the impugned blog posts. The first notice of libel was served more than three months after the first impugned blog post was published. The limitation period, however, applies “only to newspapers printed and published in Ontario and to broadcasts from a station in Ontario”: Act, s. 7. The burden of proof was with the appellant to establish that the blog posts fell within this definition under the Act. He called no evidence to establish that they did. The respondent was prepared to call expert evidence to address this issue, but, as the appellant did not lead any evidence, the respondent did not do so.[53] [154] There is no evidence from Atas, let alone expert evidence, that the impugned publications constitute “broadcasts” under the LSA or that the online publications were broadcasts from a “station in Ontario.” Atas has failed to satisfy this onus.[54]
[155] There are other common-sense reasons why the Atas case demonstrates that the notice and limitation period provisions of the LSA do not and should not apply here. First, it is impractical and unfair to require a victim to deliver a fresh written notice for each and every one of thousands of malicious postings that this cyber stalker has posted with the click of a mouse.
[156] Second, the public policy of the notice and the time period requirements of the LSA have no application to a cyber stalker such as Atas. Atas had no intention of correcting, retracting or apologizing for her defamatory postings. Her intention is to maliciously harm and vex her victims online, not to report or comment fairly and faithfully on them.
[157] Third, other than for some of the 2016 posts, Atas denies that she is the author of the online content. It would seem counterintuitive to provide statutory notice to a cyber stalker who denies that she is the perpetrator.
[158] Fourth, the short timeline to provide notice is inconsistent with the anonymity and pseudonymity available on the internet. Some “newspapers” publish on the internet, but not all internet publishers are “newspapers’.
[159] I am satisfied that this defence is not available to Atas. . Caplan v. Atas [see the main link for numbered case cites]
In Caplan v. Atas (Sup Ct, 2021) the Superior Court finds a new tort, that of 'internet harassment'. In these quotes the court considers the difficulty of structuring adequate remedies to internet defamation harassment:(d) Scope of Orders
[229] Atas’ objection to the breadth of the proposed orders underlines one of the reasons this court concludes that a common law tort of harassment should be recognized. Atas’ goal has been to inflict harm and misery on her primary targets: persons such as Wallis and Caplan, who have been prime adversaries against her in the Underlying Litigation and the s.140 Application. When Atas was enjoined from publishing further defamatory comments about Wallis, she started to publish defamatory comments about members of Wallis’ family, including Wallis’ children. The purpose of this conduct may be inferred from all the circumstances: Atas had no grudge with the Wallis children: she had never met them or had anything to do with them. She attacked them in order to do harm to Wallis.
[230] An order that is limited in its scope to persons who have been harmed already would not prevent Atas from shifting her focus to a new set of victims associated with her primary victims. The cycle could be endless.
[231] Second, defamation litigation has been called the “sport of kings” for a reason. It is notoriously complex and expensive relative to the financial interests usually at stake. The instant story of vexatious litigation is eloquent testimony to what can befall a hapless victim of a person such as Atas: overall litigation has been underway for more than 15 years, and the litigation involving Peoples Trust and its professionals (including Wallis) is now more than ten years old. It is not over yet. Many victims of a person such as Atas – after seeking advice from counsel of what may be entailed in going to law over these issues – may well decide to let it go and hope that the harassment stops or that the perpetrator will shift her focus to others.
[232] Third, a person in the position of the primary victims – while feeling outraged and angry by Atas’ conduct, would also feel terrible that their entanglement with a person like Atas has brought harm to their friends and families. I see no reason why primary victims should not be able to take the lead in bringing this conduct to an end and then to ask the court to extend protective orders to all who have been besmirched by the perpetrator’s campaign of harassment, and a wider circle of potential victims against whom Atas might turn her sights in future.
[233] This third point also provides a basis for a remedial distinction among those who have sued and those who have not. I am not sanguine that other remedies (such as damages) would be available for the benefit of non-parties. Injunctive relief that protects the parties from harassment by conduct aimed at their friends, families and associates, seems a fair and measured response.
[234] The overall history makes it clear that Atas must be ordered to leave the plaintiffs alone, and that the order must be framed broadly to ensure that she does not do indirectly that which she has been restrained from doing directly. . Caplan v. Atas [see the main link for numbered case cites]
In Caplan v. Atas (Sup Ct, 2021) the Superior Court finds a new tort, that of 'internet harassment'. In this quote the court considered the unique (and IMHO legally dubious) internet defamation remedy of "vesting title to the postings in them" (ie. the plaintiffs) as an aid to having them removed:(c) Order to Remove Impugned Content
[228] I accept that the court can order a defendant to remove offensive content on the internet.[75] Such an order will certainly not be effective in this case. First, Atas has shown already that she will not follow court orders. Second, as reflected in the record, Atas has posted to sites that have policies of not removing content simply on request. Third, it is not reasonable to suppose that Atas will even remember all the places and ways in which she has posted content wrongfully on the internet. Fourth, the proposed order requires Atas to undertake removal of content “at her own expense”. Atas is currently destitute and will use that circumstance to excuse her compliance with any steps that would cost a materials amount to pursue. Fifth, any remedy that by its nature will require ongoing involvement between plaintiffs and Atas will almost inevitably lead to conflict and further litigation. As explained in the Judgment, Atas seeks out conflict with her opponents, and seeks to extend and complicate that conflict. The court itself has an interest in seeing the overall conflict brought to an end. The alternative order proposed by the plaintiffs: vesting title to the postings in them, with ancillary orders enabling them to take steps to have the content removed, will be more effective for them. . Caplan v. Atas [see the main link for numbered case cites]
In Caplan v. Atas (Sup Ct, 2021) the Superior Court finds a new tort, that of 'internet harassment'. In these quotes the court considers a permanent injunction as a defamation remedy:[216] In Astley v. Verdun, 2011 ONSC 3651, Chapnik J. stated as follows: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….[71] ....
[221] The law in this area is developing and I acknowledge that some courts have ordered retractions and apologies as remedies for defamation.[72] I see a place for such orders, in some cases, but I see no utility in an apology here.
|
