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Torts - Defamation - 'Insults'. 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 Twitter vaccination dispute.
Here, the trial court noted a useful defamation point about 'non-actionable insults':[25] First, the motion judge found that the offensive language used by Maciver in his impugned tweets was not defamatory. The motion judge noted that there is an important distinction in the law of defamation between words that are actionable for being defamatory and words that merely contain insults and are not actionable. The motion judge acknowledged that some of the language used by Maciver may have been unprofessional and ill-advised, but involved pure name-calling and was therefore not defamatory.
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[59] With respect to the impugned statements made by Maciver, the motion judge acknowledged that he had used insulting, unprofessional and ill-advised language in referring to the appellant. But as the Supreme Court of Canada noted in Pointes Protection, at paras. 75-76, even speech that contains “deliberate lies or gratuitous personal attacks” may nevertheless be entitled to some modest level of protection, and courts should be wary of descending into a “moralistic taste test” in the weighing exercise under s. 137.1(4)(b).
[60] The motion judge found that, despite the insulting words used by Maciver, his purpose was to point out that the appellant was preventing him from responding directly to her very serious attacks on the honesty and integrity of the leadership of the OMA. It was open to the motion judge to find that there was some degree of public interest in protecting Maciver’s right to speak out on this issue, despite the fact that the language he used to communicate his message was insulting. Since the appellant had failed to adduce any evidence of “serious harm” resulting from Maciver’s statements, it necessarily followed that she had failed to meet her burden of showing that she had suffered serious harm that outweighed the public interest in protecting Maciver’s right to speak on the issue.
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