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Torts - Defamation - Test. Galati v. Toews
In Galati v. Toews (Ont CA, 2025) the Ontario Court of Appeal dismissed a plaintiff's appeal, here where the appellant-plaintiff "commenced an action against the respondents alleging that their statements caused him harm and that the respondents were liable to him on several bases, including defamation, conspiracy, unlawful means, intentional infliction of mental suffering and harassment" and the defendants successfully moved for a CJA 137.1(3) dismissal.
Here the court briefly sets out basics of a defamation action:[61] ... In a defamation action, the plaintiff’s burden is to make a prima facie case of defamation, that is, that the words spoken are such that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person: Bent, at paras. 92, 102. If the plaintiff does so, the words spoken are presumed to have been false and the burden shifts to the defendant to show a defence, such as justification (the words spoken were substantially true), fair comment, or absolute or qualified privilege. . Windrift Adventures Incorporated v. CTV-Bell Media Inc.
In Windrift Adventures Incorporated v. CTV-Bell Media Inc. (Ont CA, 2025) the Ontario Court of Appeal considered a test for defamation:[13] To decide the question of merit, the motion judge began by setting out the test for defamation in Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 92: (1) the words complained of were published, meaning they were communicated to at least one person other than the plaintiff; (2) the words complained of referred to the plaintiff; and (3) the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person. Applying that test, the motion judge found the appellant failed to establish there were grounds to believe the Action had substantial merit.
[14] The motion judge found that none of the Tweet, Facebook Post, or Video named, identified, or referred to the appellant and so the second element of the Bent test was not met in respect of them.
[15] However, as the motion judge acknowledged, the Episode did explicitly identify the appellant. Accordingly, the motion judge considered whether the Episode met the third element of the Bent test. She found that it did not because, in the eyes of a reasonable person, the appellant’s reputation had already been “tarnished” by the charges against it under the Provincial Animal Welfare Services Act and the removal of its dogs by the animal welfare authorities. On the record, this finding was fully available to the motion judge.
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