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Torts - Defamation - Fair Comment. Burjoski v. Waterloo Region District School Board
In Burjoski v. Waterloo Region District School Board (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from the denial of a SLAPP motion, here where a school board defendant was sued for defamation in the context of disputes over transgendered-issued books in school libraries.
The court examines the defamation defence of 'fair comment', here in the context of a CJA 137.1(4)(a)(ii) 'no valid defence' argument:[30] With respect to the defence of fair comment, the motion judge noted that this defence requires the defendant to prove that the statement constituted comment, that it had a basis in true facts and that it concerned a matter of public interest. If the defendant establishes those elements, the defence will not apply unless the plaintiff proves malice, which would include proving the defendant made the statement with reckless indifference as to its truth.
[31] The motion judge found that there was no prospect that the Board Chair would be able to prove that his statements had a basis in true facts since he had claimed that the respondent said things that she did not say. Further, by taking the video of the meeting off the website, the Board prevented members of the public from ascertaining the true facts. The motion judge further found that there was a ready inference that the Board Chair had acted with malice, or at least a reckless indifference for the truth. The motion judge reasoned that having made “an embarrassingly erroneous and arbitrary decision to silence a legitimate expression of opinion and [being] criticized for it”, the Board Chair tried to justify himself with the public by “assassinating the plaintiff’s character.”
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(b) Fair comment
[59] The appellants argue that the motion judge erred in two respects in his findings on the defence of fair comment.
[60] Firstly, the motion judge erred in his finding that Board Chair’s statements did not have a basis in fact. The factual basis for the Board Chair’s comments was the respondent’s statement during her presentation that a book about a youth who was born female and now identifies as male “makes very serious medical interventions seem like an easy cure for emotional and social distress.”
[61] Secondly, the motion judge erred in his finding that the defence of fair comment would be overcome by a finding of malice on the part of the Board Chair.
[62] The appellants’ submissions on this second alleged error essentially repeat their arguments in respect of malice which were considered and rejected above, and that analysis will not be repeated here.
[63] With respect to the first alleged error, the appellants do not dispute for purposes of this motion that the Board Chair attributed statements to the respondent that she did not in fact make at the meeting. There is thus some basis in the record upon which it could be inferred that the Board Chair made statements that were not based in fact. Whether such an inference should properly be drawn is a matter to be determined at a substantive hearing on the merits, rather than in the context of a s. 137.1 proceeding.
[64] We also point out that in order for the defence of fair comment to succeed, the factual basis for the comment must be reasonably available so that members of the public can make up their own minds as to whether the comment was fair (Hansman, at paras. 99-100). As the motion judge pointed out, the Board had removed the video of the respondent’s presentation from the Board website, thereby precluding members of the public from making their own assessment as to what was actually said at the meeting. This will likely be a relevant consideration at a substantive hearing on the merits of whether the appellants have a valid fair comment defence to the respondent’s defamation claim.
[65] We conclude that the motion judge did not err in finding that the respondent had met her burden in respect of the defence of fair comment and would reject this ground of appeal. . Hamer v. Jane Doe
In Hamer v. Jane Doe (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a successful SLAPP CJA s.137.1 motion.
Here the court considers the defamation 'fair comment' defence, with the malice exception:(a) Fair comment defence
[65] The defence of fair comment has the following elements: the comment must be on a matter of public interest; the comment must be based on fact; the comment must be recognizable as comment; the comment must satisfy an objective test: Hansen, at para. 96. There must be a factual foundation for the impugned statement: Hansen, at para. 99.
[66] Even if the comment satisfies the above objective elements, the defence can be defeated if the plaintiff proves that the defendant was actuated by malice. Malice can be established by reckless disregard for, or indifference to, the truth, by spite or ill-will, or by any indirect or ulterior motive: Hansen, at para. 115; 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, 485 D.L.R. (4th) 551, at para. 72, leave to appeal refused, [2023] S.C.C.A. No. 432; Awan v. Levant, 2016 ONCA 970, 133 O.R. (3d) 401, at paras. 55, 94, 96, leave to appeal refused, [2017] S.C.C.A. No. 71.
[67] Little or no effort to check the facts may support a finding of malice: Awan, at paras. 55, 94, 96. The argument for recklessness must be understood having regard to the context in which the comments were made: WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 56. It may be that in some contexts, a failure to inquire into the truth of a matter will give rise to a finding of recklessness, and hence malice: Mondal, at para. 63.
[68] A fair comment defence can also be defeated by malice if a defendant acts "out of revenge in order to obtain satisfaction for some personal resentment or grudge": Zoutman v. Graham, 2019 ONSC 2834, [2019] O.J. No. 2398, at para. 101, aff'd 2020 ONCA 767, [2020] O.J. No. 5287; Mondal, at para. 57
[69] Accordingly, the appellants could satisfy their burden to establish that there were grounds to believe that the respondents’ defence of fair comment would not succeed, either by establishing grounds to believe that the respondents could not establish fair comment, or grounds to believe that a fair comment defence otherwise available to them would be defeated by malice: see e.g., Canadian Union of Postal Workers, at paras. 31-34; Mondal, at para. 51. . Gill v. Maciver
In Gill v. Maciver (Ont CA, 2024) the Court of Appeal considered (and dismissed) an appeal from a defendant-successful SLAPP s.137.1 motion, here in yet another COVID vaccination dispute - this on Twitter.
Here the court considered a 'fair comment' defence, here in a SLAPP CJA 137.1(4)(a)(ii) ['no valid defence in the proceeding'] context:[31] First, s. 137.1(4)(a)(ii) of the CJA provides that if the impugned expression giving rise to a proceeding relates to a matter of public interest, the proceeding shall be dismissed unless the plaintiff satisfies the motion judge that there are grounds to believe that the defendant has no valid defence in the proceeding.
[32] The motion judge found that the impugned tweets by Picard, Weeks and Picazo were in the nature of “fair comment” on statements made by the appellant regarding COVID-19. “Fair comment” is a well-recognized defence within the law of defamation. Therefore, the appellant, according to the motion judge, had failed to discharge her burden of showing that Picard, Weeks and Picazo had no valid defence to her defamation claim. Accordingly, her claim against them should be dismissed on the basis of s.137.1(4)(a)(ii) of the CJA.
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(1) The motion judge did not err in finding that the defence of fair comment was prima facie available to Picard, Weeks and Picazo
[46] Section 137.1(4)(a)(ii) of the CJA requires the plaintiff to satisfy the motion judge that the defendant has no valid defence in the proceeding. The motion judge found that the appellant had failed to satisfy this requirement in respect of Picard, Weeks and Picazo, because the defence of “fair comment” was prima facie available to each of them.
[47] The fair comment defence is premised on the idea that citizens must be able to openly declare their opinions on matters of public interest without fear of reprisal in the form of actions for defamation. For the fair comment defence to be successful, a defendant must prove the following: (i) the comment must be on a matter of public interest; (ii) be based on fact; (iii) be recognizable as a comment; (iv) satisfy an objective test (could any person honestly express that opinion on the approved facts?); and (v) the speaker cannot be actuated by express malice: Hansman, at para. 96. To satisfy a motion judge that a defendant has no valid defence of fair comment, the plaintiff must demonstrate that there is no prima facie basis for finding that one or more of these elements of the fair comment offence to be satisfied: Hansman, at para. 97.
[48] The appellant claims that the motion judge made two errors in her analysis of whether the “fair comment” defence was available to Picard, Weeks and Picazo. First, the motion judge failed to consider whether the comments made by these three defendants were based on “proven facts”, namely, that the statements made by the appellant were in fact untrue or, alternatively, that the statements made by Picard, Weeks and Picazo were true. Second, the motion judge failed to consider whether Picard, Weeks and/or Picazo were motivated by malice.
[49] There is no merit to either of these objections.
[50] As the Supreme Court of Canada made plain in Hansman at paras. 99-100, the requirement that the defendant’s statements be “based on fact” does not mean that the defendant must prove that the statements they made were true. If this were so, it would collapse the distinction between the defences of “fair comment” and justification. All that is necessary to satisfy the “based on fact” element of the fair comment defence is that the defendant identify the factual foundation upon which the impugned statement is based, so that the reader can “make up their own minds as to its merits”: Hansman, at para. 99.
[51] In this case, Picard, Weeks and Picazo all expressly identified the specific statements of the appellant with which they took issue, and their basis for making those statements. Nothing further was required in order to satisfy the “based on fact” requirement of the fair comment defence.
[52] Nor has the appellant advanced any basis for finding that the motion judge erred in finding that Picard, Weeks or Picazo were not motivated by malice. The motion judge made clear findings, based on the record, that all three of these defendants were motivated by concerns that the appellant’s public statements had the potential to mislead or misinform the public, thereby creating a potential risk to public health. Not only were these findings open to the motion judge, but the appellant has also failed to adduce any credible evidence to the contrary.
[53] In my view, the motion judge did not err in finding that the defence of fair comment was prima facie available to Picard, Weeks and Picazo. This in itself is fatal to the appellant’s claims against these three defendants. However, because the “fair comment” defence was not available to Maciver, I will proceed to consider additional grounds relied upon by the motion judge in dismissing the claim against all four Remaining Defendants . 2110120 Ontario Inc. v. Buttar
In 2110120 Ontario Inc. v. Buttar (Ont CA, 2023) the Court of Appeal considers the element of 'malice', which can defeat the defamation defences of both 'fair comment' and 'responsible communication on a matter of public interest':(2) The defences of fair comment and responsible communication on a matter of public interest
[72] The other two defences raised by the appellant, for the purpose of this appeal, can be addressed briefly. Again, the question at this stage is only whether there is reason to believe that the defences will not succeed. Although the elements of the defences are distinct, both are defeated by malice: Blair v. Ford, 2021 ONCA 841, at para. 45, Torstar, at para. 125. Malice has both subjective and objective aspects: WIC Radio, at para. 28. It may be established by reckless disregard for, or indifference to, the truth, spite or ill-will, or any indirect or ulterior motive: CUPW, at para. 31, citing Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at p. 1189; Bent, at para. 136. In CUPW, it was sufficient that the evidence might support a finding of malice, based on the presence of an ulterior motive or recklessness about the truth of underlying facts, or based on an inference from the appellants’ conduct: at para. 32.
[73] The appellants submit that there is no evidence of malice in this case. I disagree. While it is premature to determine the question conclusively, even at this preliminary stage, there is evidence to support such a finding based on the presence of an ulterior motive: to intimidate the respondents into paying their claims. There is also evidence of recklessness about the truth of the underlying facts, namely that the orders were under appeal and subject to an ongoing legal process. A key piece of evidence is NSN’s letter of September 25, 2021, that preceded and threatened the October 2 rally, which was addressed to Randeep Sandhu and stated, in part:You have not paid any of these drivers a cent of what they are owed. Your behaviour is outrageous and shameful. No worker should have to spend extra time and money filing legal claims just to receive their hard-earned pay. We demand that you pay these drivers the above amounts by October 1, 2021. If you refuse, members of the NSN will organize public protests to demand all these drivers be paid. We will expose you and Cargo County Group to other truck drivers, to the Panjabi community in Peel and to the broader public across Ontario. We will also speak publicly about you and your company at our October 2 rally and share details of the drivers’ stories with all local media in attendance. [Emphasis in original.] [74] Further, NSN’s representative confirmed that NSN knew that the appellants were involved in a legal process with Cargo County but made no inquiries to determine whether any monies were in fact owed at the time of the impugned conduct. The thrust of her evidence was that, irrespective of the status of the legal process and the true facts, NSN intended to bring pressure to bear on Cargo County using the tactics they had employed in other cases, which included calling its principal a “wage thief”.
[75] Without going into the evidence in depth, there is sufficient evidence that could support a finding of malice based on the inflammatory tone and invocation of criminality present in the impugned remarks, the evidence of an ulterior motive to embarrass, shame and intimidate the respondents into paying the appellants’ claims, and a recklessness or indifference to the truth of what was stated.
[76] Accordingly, there is reason to believe that the defences of fair comment and responsible communication on a matter of public interest will not succeed. . 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. In this quote the court summarizes the 'fair comment' defamation defence:(ii) The nature of fair comment
[48] “Fair comment” is a defence to a defamation claim that is available if the words complained of are expressions of opinion rather than fact. The test for fair comment was articulated by the Supreme Court in WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 28. The four-part test is as follows:1. The comment must be on a matter of public interest;
2. The comment must be based on fact;
3. The comment can include inferences of fact, but must be recognizable as comment; and
4. The comment must satisfy the objective test: could any person honestly express the opinion on the proved facts? [49] However, even if these four criteria are satisfied, the fair comment defence is defeated if the plaintiff proves that the defendant was subjectively actuated by express malice. Thus, malice is often listed as the fifth part of the fair comment test: WIC Radio, at para. 28; Blair v. Ford, 2021 ONCA 841, 159 O.R. (3d) 415, at para. 45, leave to appeal refused, [2022] S.C.C.A. No. 15.
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[61] It is well established that comment includes a “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof”: WIC Radio, at para. 26, quoting Ross v. New Brunswick Teachers’ Assn., 2001 NBCA 62, 201 D.L.R. (4th) 75, at para. 56. The defence of fair comment depends on whether any person could honestly make the comment on the proved facts, and the relevant facts in this matter do not appear to be in dispute. .... All that matters is whether the respondents actually held the view they expressed in their comment. There is no requirement that a comment be considered “fair” in some objective sense: see WIC Radio, at para. 28. . 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. In these quotes the court considers the 'malice' exception to the fair comment defamation defence:[53] The appellant argues that the motion judge failed to consider whether Evans-Bitten’s expression was motivated by malice, and as a result failed to determine whether there were grounds to believe that she had no valid fair comment defence.[5] Evans-Bitten argues that the motion judge addressed and rejected malice in his reasons.
[54] Malice includes spite or ill-will but may also be established by showing that a comment was made with an indirect motive or ulterior purpose, dishonestly, or in knowing or reckless disregard for the truth: Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Incorporated, 2018 ONCA 383, 424 D.L.R. (4th) 514, at para. 33; Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 145.
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[57] ... But a fair comment defence can be defeated by malice if a defendant acts “out of revenge in order to obtain satisfaction for some personal resentment or grudge”: Zoutman v. Graham, 2019 ONSC 2834, at para. 101, aff’d 2020 ONCA 767. ...
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[63] The appellant does not allege spite or ill-will, indirect motive, ulterior purpose, or dishonesty. He argues that malice arises from the respondents’ reckless actions in sending the impugned email. The argument for recklessness must be understood having regard to the context in which the comments were made: WIC Radio, at para. 56. It may be that in some contexts, a failure to inquire into the truth of a matter may give rise to a finding of recklessness, and hence malice, but it does not in this case. The respondents were not required to know the truth of the facts – i.e., that the tweets appended to their email were sent by the appellant – when their email message was sent. It is enough that they had an honest belief in the factual foundation for the email. So long as the impugned opinion was based on evidence that existed at the time, the facts supporting a belief may be proven at trial: Peter A. Downard, The Law of Libel in Canada, 5th ed. (Toronto: LexisNexis, 2022), at 11.02.
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