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Torts - Defamation - Unnamed Target. Warman v. Kay
In Warman v. Kay (Div Court, 2024) the Divisional Court dismissed an appeal from an earlier Small Claims dismissal of a defamation action, here where the plaintiff failed to prove that the impugned comments made referred to him:[1] The respondents published two tweets that referred to the Canadian Anti-Hate Network (CAHN). The tweets did not name the appellant, Mr. Richard Warman. Mr. Warman nevertheless commenced a defamation action against the respondents in the Small Claims Court. The trial judge found that Mr. Warman had not established that the impugned words would lead a reasonable person to believe that they referred to him, so the action was dismissed.
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[14] Mr. Warman argued that the defamatory statements referred to him. Essentially, he asked the court to draw this conclusion because he was a member of CAHN’s board of directors and, according to him, was a co-founder of CAHN, and would be recognized as a member of the group. He also relied on the principle of “group defamation” in Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214.
[15] The trial judge found that Mr. Warman had not established that the tweets would lead a reasonable person to believe that they referred to him. Thus, the trial judge dismissed the action.
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Issue 1: Did the trial judge err in law in characterizing the legal test to determine whether the impugned words referred to Mr. Warman?
[25] Mr. Warman contends that the trial judge failed to identify and apply the correct legal test in determining whether the tweets referred to him.
[26] The test for determining whether the tweets referred to Mr. Warman is two-fold:a. Are the impugned words capable of referring to the plaintiff? This is a question of law.
b. If yes, would the words reasonably lead persons who know the plaintiff to believe that the plaintiff was the person referred to? This is a question of fact. See Arnott v. College of Physicians, 1954 CanLII 60 (SCC), [1954] S.C.R. 538, at p. 554, relying on Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 (H.L.), at p. 121. On the second branch, the trier of fact must consider the circumstances, including relevant extrinsic evidence connecting the words with the plaintiff: Morgan v. Odhams Press Ltd., [1971] 2 All E.R. 1156 (H.L.), at p. 1175; Sykes v. Fraser, 1973 CanLII 153 (SCC), [1974] S.C.R. 526, at p. 559.
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[30] First, Mr. Warman argues that the trial judge should have asked under the second element of the test whether the impugned words would reasonably lead persons acquainted with Mr. Warman to believe that he was the person referred to.
[31] I disagree. In paraphrasing the second element of the test, the trial judge did not err.
[32] In the seminal case of Knupffer, at p. 119, the House of Lords stated that where the plaintiff is not named, the test is “whether the words are such as would reasonably lead persons acquainted with the Plaintiff to believe that he was the person referred to”. This formulation has been applied in Canada: see e.g., Arnott, at p. 555; Hamlin v. Kavanagh, 2019 ONSC 5552, at paras. 46, 50; Butler v. Southam Inc., 2001 NSCA 121, 197 N.S.R. (2d) 97, at para. 29, per Cromwell J.A.; and Simpson v. Ontario, 2010 ONSC 2119, 323 D.L.R. (4th) 102, at para. 264.
[33] But the formulation relied on by the trial judge is also frequently used in Canada. For example, the Supreme Court of Canada held in Sykes, at p. 559, that a “plaintiff who sues for libel must prove not only that the words complained of are capable of referring to him (that is, there is evidence upon which such a finding may be made where he is not expressly identified with the libellous matter), but that this is a reasonable conclusion in the circumstances”.
[34] The Court of Appeal for Ontario has also used the formulation relied on by the trial judge. In Walker v. CFTO Ltd. (1987), 1987 CanLII 126 (ON CA), 59 O.R. (2d) 104 (C.A.), at p. 117, it held that “it is incumbent on a plaintiff in a libel action to prove, not only that the defendant published the statements complained of and that they are defamatory, but also that they are defamatory of him or her. The statements must be such that they would be understood by reasonable people to refer to the plaintiff”.
[35] Similarly, in Foulidis v. Ford, 2014 ONCA 530, 323 O.A.C. 269 (“Foulidis (ONCA)”), at para. 17, the Court of Appeal held that “the trial judge applied the relevant two-part test: (1) were Mr. Ford’s words capable of referring to Mr. Foulidis; and (2) if ‘yes’, would Mr. Ford’s words lead reasonable people to conclude that they did in fact refer to Mr. Foulidis”. Here, the trial judge cited to the trial level decision of Foulidis when applying the legal test.
[36] Mr. Warman relies on Grant v. Cormier-Grant (2001), 2001 CanLII 3041 (ON CA), 56 O.R. (3d) 215 (C.A.). Yet, even in that case, the Court of Appeal used the formulation relied on by the trial judge: “Where … the plaintiff’s name does not appear in the defamatory statement, ‘it must be shown that the words used, or the circumstances attending the publication are such as, would lead reasonable persons to understand that it was the plaintiff to whom the defendant referred’”: at para. 19.
[37] Therefore, I conclude that it is not an error for the trial judge to have asked whether the impugned words would lead reasonable people to conclude that they did in fact refer to the plaintiff. This formulation emphasizes that the second element of the test is an objective one. Some immediate suspicion is not enough to conclude that the impugned words refer to the plaintiff: Butler, at para. 30. The conclusion that the impugned words refer to the plaintiff must be reasonable, possessed by someone who is acquainted with the plaintiff and who knows the circumstances: Cormier-Grant, at para. 24.
[38] The trial judge need not have unpacked all the jurisprudence on the second element of the test. Recall that “appellate consideration of Small Claims Court reasons must recognize the informal nature of that court, as well as the volume of cases it handles and its statutory mandate to deal with these cases efficiently”: Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520, 389 D.L.R. (4th) 711, at para. 35. Having considered the trial judge’s reasons in the context of the submissions made by the parties at trial, I am satisfied that the judge was aware of the correct legal principles.
[39] Second, Mr. Warman argues that the trial judge erred in relying on the trial level decision in Foulidis (2012 ONSC 7189, 114 O.R. (3d) 58) (“Foulidis (ONSC)”) and adopting a more stringent approach to the test by requiring him to demonstrate that he was the “face” or “alter ego” of CAHN.
[40] The trial judge made no such error. As discussed, the trial judge correctly identified the legal test for determining whether the tweets referred to Mr. Warman. He properly relied on the trial level decision in Foulidis, which was affirmed on appeal by the Court of Appeal. Like here, Foulidis involved a defamation action in which the defendant made allegedly defamatory comments that expressly referred to a corporation, rather than the plaintiff. The plaintiff, who was an officer and director of the corporation, sued for defamation, alleging that the comments referred to him. The trial judge dismissed the action, finding, among other things, that the defendant’s words would not lead reasonable people to conclude that they did in fact refer to the plaintiff. One among several factors the trial judge considered in Foulidis was whether the plaintiff was the “face” or “alter ego” of the corporation: Foulidis (ONSC), at para. 33. The Court of Appeal held the trial judge applied the correct legal test and specifically affirmed the trial judge’s finding in this regard: Foulidis (ONCA), at paras. 17, 30.
[41] Here, the trial judge also considered whether Mr. Warman was the “face” or “alter ego” of CAHN. These were simply two among several circumstances he considered in his reasons. It was not a legal error to consider these circumstances and the findings of fact were open to the trial judge on the record before him.
[42] Finally, Mr. Warman relies on Bou Malhab. Bou Malhab concerned a class action for the injury allegedly suffered by the members of the class because of racist comments made by a radio host concerning Montréal taxi drivers whose mother tongue was Arabic or Creole. This is sometimes called a “group defamation”. The principles in Bou Malhab are of little assistance to Mr. Warman because the impugned words were not made about a group of individuals; the words were expressly made about @antihateca, the Twitter handle for CAHN. CAHN is a corporation. Mr. Warman seeks to expand the application of Bou Malhab beyond its reach.
[43] In any event, when the trial judge considered all the circumstances under the second element of the test, he effectively considered many factors that one would consider under Bou Malhab. He held that they weighed against finding that the tweets referred to Mr. Warman.
[44] Thus, I do not give effect to this ground of appeal. I now turn to Mr. Warman’s argument that the trial judge went astray in applying the test to the facts.
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