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Torts - Defamation - Qualified Privilege. 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 'qualified privilege' (and it's 'malice' exception), here in the context of a CJA 137.1(4)(a)(ii) 'no valid defence' argument:[32] With respect to the defence of qualified privilege, the motion judge found that the Board Chair has a duty under the Education Act, R.S.O. 1990, c. E.2 to act as a spokesman for the Board, and that this may entitle him to assert qualified privilege. However, even assuming that the Board Chair could claim qualified privilege, this defence would be defeated by a showing of malice. The motion judge also distinguished the circumstances in this case from those in Hansman since here the Board Chair was defending himself rather than a disadvantaged group.
[33] The Board argued that as the respondent had still been employed by the board as a teacher in January 2022, her claim should have been brought before a labour arbitrator rather than the Superior Court. The motion judge disagreed, noting that the subject matter of her claim had nothing to do with the interpretation or application of the collective agreement, and the Board Chair did not purport to exercise discipline in stopping her presentation. He therefore found that the court had jurisdiction over the subject matter of the respondent’s claim.
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(a) Qualified privilege
[50] The appellants argue that the motion judge erred in finding that there were grounds to believe that the Board Chair acted with malice in making the impugned statements. He therefore wrongly concluded that the defence of qualified privilege was unlikely to succeed.
[51] The appellants advance four arguments in this regard:(i) the motion judge’s finding of malice was based on his mistaken belief that the Board Chair’s decision to stop the respondent’s presentation was arbitrary, contrary to the later finding of the Divisional Court that the Board acted reasonably in upholding the ruling of the Board Chair;
(ii) the motion judge found that the Board Chair was acting to defend himself, rather than defend a disadvantaged group, but this argument was not advanced by the respondent on the motion and it was thus a denial of procedural fairness for the motion judge to rely upon it;
(iii) the Board Chair genuinely believed that his statements describing the respondent’s presentation were true, which negatives a finding of malice on his part; and
(iv) malice must be the dominant motive for expressing an opinion in order to defeat a defence, but the motion judge made no finding in this regard. [52] Respectfully, we would not accede to these submissions.
[53] As we pointed out earlier, all that is required of the responding party in respect of s. 137.1(4)(a)(ii) is that they show “grounds to believe”, that is, some basis in the record and the law, for finding that the moving party has no defence to the claim. Moreover, any basis in the record and the law is sufficient to meet this standard so long as it is legally tenable and capable of belief.
[54] Turning to the first of the arguments set out above, the appellant is correct that due to the Divisional Court’s decision, the motion judge was mistaken in proceeding on the basis that the Board had no authority to end the presentation. But the Divisional Court decision did not necessarily undermine the motion judge’s finding as to whether the defence of qualified privilege was available to the appellants, since the issue before the Divisional Court was quite different from that raised by the respondent’s defamation claim. The Divisional Court was concerned with whether the Board and/or the Board Chair had the legal authority to stop the respondent’s presentation at the Board meeting, not with whether comments made by the Board Chair after the meeting were defamatory. Thus, the Divisional Court’s decision does not immunize the later statements made by the Board Chair from being actionable if the statements were defamatory.
[55] For clarity, we make no comment as to whether or not the fact that the Board and/or the Board Chair acted reasonably in stopping the respondent’s presentation could be relevant in a later assessment of the merits of the respondent’s defamation claim. Our point is simply that the Divisional Court decision is not in itself an answer to the respondent’s defamation claim and thus does not provide a basis for dismissing the claim summarily on a s. 137.1 motion.
[56] Nor, in our view, did the motion judge deny the appellants procedural fairness by inferring that the Board Chair was acting to defend himself rather than a disadvantaged group. The focus of the questions put to the Board Chair in his two media interviews was whether his decision to stop the respondent’s presentation was justified. There was thus a basis in the record for the motion judge to draw the inference that the Board Chair was attempting to justify his decision to stop the respondent’s presentation. Regardless of whether this argument was raised by the respondent in her submissions, the motion judge did not deny the appellants procedural fairness by relying upon it. This is because all he has decided is that this very issue should proceed to a hearing on the merits. In other words, the motion judge’s dismissal of the appellants’ s. 137.1 motion does not in any way limit their ability to argue in subsequent proceedings that the Board Chair was not in fact attempting to justify his decision to stop the presentation but, rather, was seeking to defend a disadvantaged group. There was thus no denial of procedural fairness in this regard.
[57] The remaining two arguments raised by the appellants in respect of the defence of qualified privilege focus on whether the Board Chair was actually motivated by malice in making the impugned statements and, if so, whether such malice was his dominant motive. Yet the appellants do not appeal the motion judge’s finding that the Board Chair made statements about the respondent’s presentation that were untrue by attributing to her comments that she did not make. Moreover, the media interviews with the Board Chair took place within days of the Board meeting over which he himself had presided. There was thus some basis in the record from which it could be inferred that the Board Chair acted recklessly (and thus, legally, with “malice”) in claiming that the respondent had made statements that were not in fact made by her. Whether in fact he acted recklessly, and whether this was his dominant motive in making the statements, is a matter to be determined at a substantive hearing on the merits, rather than on a s. 137.1 motion.
[58] We conclude that the motion judge did not err in finding that the respondent had met her burden in respect of the defence of qualified privilege and would reject this ground of appeal. . Kohlenberg v. Canada (Attorney General)
In Kohlenberg v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismisses an appeal from a labour JR, which in turn dismissed an earlier defamation damages grievance.
In these quotes the court considered defamation law, here regarding 'qualified privilege':[31] ADM Eid relied on Bent v. Platnick at paragraph 121 for the proposition that an occasion of qualified privilege exists if a person making a communication has a duty to publish the information to the person to whom it is published, and the recipient has a corresponding duty or interest in receiving it. ...
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[33] Following an analytical framework consistent with that laid out by the Supreme Court in Bent v. Platnick at paragraphs 128 and 136, ADM Eid found that the qualified privilege was not defeated because the appellant had failed to establish 1) that the scope of the privilege was exceeded because the statements were irrelevant to the work description grievance, or 2) that their author was motivated by malice.
[34] In Bent v. Platnick, the Supreme Court noted, at paragraph 128, that qualified privilege may be defeated when the limits of the duty or interest have been exceeded. This may occur "“when the information communicated in a statement is not relevant to the discharge of the duty … giving rise to the privilege, or when the information is not reasonably appropriate to the legitimate purpose of the occasion”" [citations omitted]. It explained, at paragraph 136, that another way to defeat the defence of qualified privilege is to establish malice on the part of the person making the statement by showing an actual, express motive to speak dishonestly or reckless disregard for the truth.
[35] The appellant submits that ADM Eid erred in dismissing his claim that the defence of qualified privilege was defeated because the statements were irrelevant to the work description grievance or because he had established malice on the part of the senior LRA who made the statements.
[36] Before addressing this submission, I pause to note that at paragraphs 129 and 130 of Bent v. Platnick, in determining whether the publisher’s inclusion in her communication of specific libellous references to Dr. Platnick exceeded the scope of qualified privilege, the majority asked whether naming Dr. Platnick in the communication was necessary to discharge the duty giving rise to the privilege. This has raised questions as to the place of "“relevance”" as distinguished from "“necessity”" in the analysis of the scope of qualified privilege: see e.g. Thatcher-Craig v. Clearview (Township), 2023 ONCA 96, 480 D.L.R. (4th) 639 at para. 75, n. 2.
[37] It is not necessary to canvass this issue further here. Firstly, the parties did not raise the question of necessity before this Court and took no issue with ADM Eid’s focus on the relevance of the statements. Secondly, ADM Eid found that, in the specific labour relations context of this case, to fulfill the duty giving rise to the occasion of qualified privilege, the senior LRA was "“required to give more information rather than less”" [emphasis added] to the final level decision maker. Since the senior LRA was duty-bound to give ADM Thivierge as much evidence as may be relevant to adjudicate the grievance in an informed manner, the requirements of relevance and necessity were coextensive. Accordingly, in light of ADM Eid’s finding that evidence with respect to the PREA objectives and ratings was "“generally relevant to understanding duties performed in the context of a work description grievance,”" its publication became necessary. I am therefore satisfied that, while ADM Eid invoked the language of relevance rather than necessity in defining the scope of qualified privilege, her decision was nevertheless justified in relation to the relevant legal constraints that bore on her decision: Vavilov at para. 100. . Marcellin v. London (Police Services Board)
In Marcellin v. London (Police Services Board) (Ont CA, 2024) the Ontario Court of Appeal allowed a SLAPP appeal, here focussing on if there were 'valid defences' to a s.137.1(3) motion dismissal [under CJA s.137.1(4)(a)(ii)]:(i) The Question of Valid Defences
[59] Pursuant to s. 137.1(4)(a), it is the responding party’s onus to establish that there are grounds to believe that (i) the proceeding has substantial merit, and (ii) the moving parties have no valid defence to the proceeding. “Grounds to believe” means something more than mere suspicion, but less than proof on a balance of probabilities: Hansman, at para. 94, citing Pointes Protection, at para. 40. Any basis in the record and the law is sufficient to meet this standard, so long as it is “legally tenable and reasonably capable of belief”: Bent, at para. 88.
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[62] The other defence that was “in play” with respect to the impugned expressions was qualified privilege. As I will explain, while the motion judge correctly applied the relevant principles in determining that there were grounds to believe that the defence of qualified privilege would not apply in respect of the expressions at the April 26 meeting, his consideration of the defence of qualified privilege in relation to Dr. Young’s police complaint was incomplete and he applied an incorrect legal standard in concluding that Mr. Marcellin had not met his burden in respect of the defence of qualified privilege in relation to the letters. I will also briefly address Ms. Walker’s “Cosby tweet” in respect of which the motion judge found malice. In my view, on the record available at this early stage in the proceedings, Mr. Marcellin has met his burden under s. 137.1(4)(a)(ii) with respect to all of the impugned expressions.
(a) Qualified Privilege
[63] I will begin by setting out a summary of the relevant legal principles respecting qualified privilege as discussed in Bent, at paras. 121-28, and in Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at paras. 143-47:. The threshold for qualified privilege is high. The privilege is grounded not in free expression values, but in the social utility of protecting particular communication occasions from civil liability;
. The focus is on the circumstances in which the communication was made. A precise characterization of the occasion is essential;
. The privilege is “qualified” because it can be lost if the communication exceeds the legitimate purposes of the privilege or where the dominant motive for publishing the defamatory expression is actual or express malice. The focus is on the “content of the communication, and on the conduct and motives of the speaker”;
. A defendant cannot rely on qualified privilege if the information communicated is “not reasonably appropriate to the legitimate purposes of the occasion”. A statement cannot be “reasonably appropriate” unless it is “relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege”; and
. Malice includes spite or ill-will, as well as any indirect motive or ulterior purpose that conflicts with the sense of duty or mutual interest the privileged occasion created, and is also established by showing the defendant spoke dishonestly or in knowing or reckless disregard for the truth. ....
[67] With respect, the motion judge’s analysis of the defence of qualified privilege in respect of the police complaint was incomplete. He did not go on to consider, as he had in respect of the April 26 meeting, whether there were grounds to believe that the privilege had been exceeded and that the defence would be defeated by malice.
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[71] Again, the burden under s. 137.1(4)(a)(ii) is not high. Mr. Marcellin’s onus was not to establish conclusively that Dr. Young had an improper motive and acted with malice. It was to show that there were grounds to believe that any defence to the impugned expressions, including the making of the police complaint, would not succeed. The motion judge erred by not considering evidence of Dr. Young’s motive and malice in making the complaint. On the record in this case I am satisfied that there are grounds to believe that the defence of qualified privilege will not succeed in relation to this impugned expression.
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[77] In my view the repeated references to the sufficiency of the evidence suggests that the motion judge applied a standard that exceeded the “grounds to believe” standard under s. 137.1(4)(a)(ii). As noted earlier, “grounds to believe” means something more than mere suspicion, but less than proof on the balance of probabilities: Pointes Protection, at para. 40. Having regard to the stage of the proceedings when an anti-SLAPP motion is brought, any basis in the record and the law is sufficient to meet this standard, so long as it is “legally tenable and reasonably capable of belief”: Bent, at para. 88.
[78] The central question with respect to malice was whether there were grounds to believe that, in sending the letters, Dr. Young was acting out of spite or ill-will, or had any “indirect motive or ulterior purpose” that conflicted with the sense of duty or mutual interest the privileged occasion created. In my view, in considering the question of malice, the motion judge failed to give proper consideration to the content of the letters (apart from Dr. Young’s stated purpose), their timing, and the context in which they were sent.
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[81] There was plainly a basis in the record and the law to support a finding that the letters were motivated by malice sufficient to defeat the defence of qualified privilege. I find that Mr. Marcellin has met his burden to show that there are grounds to believe this defence will not succeed with respect to the letters to community leaders that were sent out by Dr. Young.
[82] Finally, the motion judge did not complete his analysis of the defences raised in respect of Ms. Walker’s tweets. After concluding that the defence of qualified privilege would not apply to the tweets, which were made to the public at large, he stated only that the tweet that advised of Mr. Marcellin’s charges was not actionable as defamation because it was true, and that, in relation to Ms. Walker’s tweet about Mr. Marcellin that followed her “Cosby tweet”, it was not necessary to determine on the motion whether the two tweets were merely coincidental or deliberately coordinated, but that in any event there was some basis in the evidence to determine that Ms. Walker acted with malice.
[83] In my view, Mr. Marcellin met his onus under s. 137.1(4)(a)(ii) in respect of Ms. Walker’s tweet. There are grounds to believe that the two tweets were deliberately coordinated, and that Ms. Walker was communicating that Mr. Marcellin was, like Bill Cosby, supported as a “great guy” but had abused women. No arguable defence was raised, and, as the motion judge observed, there was a basis to conclude that Ms. Walker was animated by malice.
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