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Torts - Defamation II

. Labourers’ International Union of North America, Local 183 v. Castellano

In Labourers’ International Union of North America, Local 183 v. Castellano (Ont CA, 2020) the Court of Appeal considered injunction remedies for defamation:
(a) Publication injunction

[18] In considering whether the injunction against the publication of any commentary concerning the respondents was overly broad, we start with some well-established general principles. As this court stated in St. Lewis v. Rancourt, 2015 ONCA 513, 337 O.A.C. 15, at para. 16, leave to appeal refused, [2015] S.C.C.A. No. 407: “A broad ongoing injunction is an extraordinary remedy which should be used sparingly. However, where there has been a campaign of defamation and a likelihood that it will continue, there is authority for such an order.” The injunctive relief must be broad enough to be effective but no broader than reasonably necessary to effect compliance: Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396, 9 B.C.L.R. (5th) 299, at para. 39.


[24] We reiterate that permanent injunctions constitute extraordinary relief that must be granted sparingly. A different test applies for a permanent injunction than for an interlocutory injunction. A different test is required because, in considering an application for a permanent injunction, the court has the ability to finally determine the merits of the case and fully evaluate the legal rights of the parties. See 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, 371 D.L.R. (4th) 643, at paras. 76-80; Cambie Surgeries Corp., at paras. 27-28.

[25] As referenced in Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf, (Toronto: Canada Law Book, 2019), at para. 1.45, in NunatuKavut Community Council Inc. v. Nalcor Energy, 2014 NLCA 46, 358 Nfld. & P.I.E.R. 123, at para. 72, the Court of Appeal of Newfoundland and Labrador summarized the approach to be applied in deciding whether to grant a permanent injunction:
(i) Has the claimant proven that all the elements of a cause of action have been established or threatened? (If not, the claimant's suit should be dismissed);

(ii) Has the claimant established to the satisfaction of the court that the wrong(s) that have been proven are sufficiently likely to occur or recur in the future that it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction? (If not, the injunction claim should be dismissed);

(iii) Is there an adequate alternate remedy, other than an injunction, that will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong? (If yes, the claimant should be left to reliance on that alternate remedy);

(iv) If not, are there any applicable equitable discretionary considerations (such as clean hands, laches, acquiescence or hardship) affecting the claimant's prima facie entitlement to an injunction that would justify nevertheless denying that remedy? (If yes, those considerations, if more than one, should be weighed against one another to inform the court's discretion as to whether to deny the injunctive remedy.);

(v) If not (or the identified discretionary considerations are not sufficient to justify denial of the remedy), are there any terms that should be imposed on the claimant as a condition of being granted the injunction?

(vi) In any event, where an injunction has been determined to be justified, what should the scope of the terms of the injunction be so as to ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven or threatened or to effect compliance with its intent? [Emphasis added.]
[26] Given their potentially broad and restrictive scope, permanent injunctions must be particularly tailored to the specific circumstances of the case in which they are ordered. It is therefore incumbent on the court asked to consider such relief to conduct a careful analysis and to limit the breadth of any permanent injunction to only what is reasonably necessary to remedy the specific wrong committed and prevent further harm to the claimant. See Cambie Surgeries Corp., at para. 39; NunatuKavut Community Council Inc., at para. 71.


[35] However, the respondents are not without recourse. If necessary, other remedies are available to restrain the appellant’s behaviour, such as issuing a trespass notice under the Trespass to Property Act, R.S.O. 1990, c. T.21, which Local 183 already did, or pursuing a peace bond under the Criminal Code, R.S.C. 1985, c. C-46: Rainy River (Town) v. Olsen, 2017 ONCA 605, 64 M.P.L.R. (5th) 76, at para. 9.
. Bent v. Platnick

In Bent v. Platnick (SCC, 2020) the Supreme Court of Canada comments on several aspects of defamation law as follows:
[107] Once a prima facie showing of defamation has been made, the words complained of are presumed to be false: Torstar, at para. 28. To succeed on the defence of justification, “a defendant must adduce evidence showing that the statement was substantially true”: para. 33. The burden on the defendant is to prove the substantial truth of the ‘“sting’, or main thrust, of the defamation”: Downard, at §1.6 (footnote omitted). In other words, “[t]he defence of justification will fail if the publication in issue is shown to have contained only accurate facts but the sting of the libel is not shown to be true”: Downard, at §6.4.

[108] Of particular importance here is the fact that partial truth is not a defence. If a material part of the justification defence fails, the defence fails altogether: R. E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (2nd ed. (loose-leaf)), at pp. 10-88 to 10-90 (“Brown on Defamation”). However, a defendant may justify only part of a libel “if that part is severable and distinct from the rest”: p. 10-89 (footnote omitted). This depends on the allegation being separate and self-contained rather than an “ingredient or part of a connected whole”: p. 10-90 (footnote omitted).


(ii) Qualified Privilege

[121] An occasion of qualified privilege exists if a person making a communication has “an interest or duty, legal, social, moral or personal, to publish the information in issue to the person to whom it is published” and the recipient has “a corresponding interest or duty to receive it”: Downard, at §9.6 (footnote omitted). Importantly, “[q]ualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself”: Hill, at para. 143; Botiuk, at para. 78. Where the occasion is shown to be privileged, “the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff”: Hill, at para. 144; Botiuk, at para. 79. However, the privilege is qualified in the sense that it can be defeated. This can occur particularly in two situations: where the dominant motive behind the words was malice, such as where the speaker was reckless as to the truth of the words spoken; or where the scope of the occasion of privilege was exceeded (Downard, at §1.9; see also Hill, at paras. 145-47; Botiuk, at paras. 79-80).

[122] For this reason, a precise characterization of the “occasion” is essential, as it becomes impressed with the limited, qualified privilege, which in turn becomes the benchmark against which to measure whether the occasion was exceeded or abused.


[128] Qualified privilege may be defeated “when the limits of the duty or interest have been exceeded”: Hill, at para. 146; Botiuk, at para. 80. This is the case when the information communicated in a statement is not relevant to the discharge of the duty or the exercise of the right giving rise to the privilege, or when the information is not reasonably appropriate to the legitimate purposes of the occasion: Downard, at §9.91; Botiuk, at para. 80; Hill, at paras. 146-47; RTC Engineering Consultants Ltd. v. Ontario (Solicitor General) (2002), 2002 CanLII 14179 (ON CA), 58 O.R. (3d) 726 (C.A.), at para. 18.


[136] I add that malice is an alternative way to defeat the defence of qualified privilege. Malice is not limited to an actual, express motive to speak dishonestly. Instead, it can be established by “reckless disregard for the truth”: Hill, at para. 145; Botiuk, at para. 79. Notably, an ostensibly honestly held belief may still be spoken recklessly and the privilege defeated if the belief was “arrived at without reasonable grounds”: Downard, at §9.60 and 9.61. “The more serious the allegation in issue, the more weight a court will give to a failure by the defendant to verify it prior to publication as evidence of malice, in the sense of indifference to the truth”: §9.74 (footnote omitted). This is particularly true of lawyers, who are “more closely scrutinized” than a layperson: Botiuk, at para. 98. Lawyers are “duty-bound” to undertake a “reasonable investigation as to the correctness” of a defamatory statement, and “actions which might be characterized as careless behaviour in a lay person could well become reckless behaviour in a lawyer”: paras. 98-99, 103.


[144] General damages are presumed in defamations actions, and this alone is sufficient to constitute harm: Pointes Protection, at para. 71; Torstar, at para. 28. However, the magnitude of the harm will be important in assessing whether the harm is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression: Pointes Protection, at para. 70. General damages in the nominal sense will ordinarily not be sufficient for this purpose.
. Chopak v. Patrick

In Chopak v. Patrick (Div Ct, 2020) the Divisional Court considered a libel appeal, and makes a number of useful comments on assorted points of defamation law:
[36] The meaning of words in a defamation case is to be determined by the trier of fact, who is to decide on the “natural and ordinary meaning” of the words, which is a “matter of impression.” As Lord Reid stated long ago in Lewis v. Daily Telegraph Ltd., [1964] A.C. 234, at 258-260, the judge or jury, as the case may be, asks simply “what the words would convey to the ordinary man,” who “does not live in an ivory tower and … is not inhibited by a knowledge of the rules of construction.” The “ordinary man” is “not avid for scandal,” is neither “unusually suspicious” or “unusually naïve,” and “one must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question.” (emphasis added) As Binnie J. put it in WIC Radio v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 56, “[t]he Court is to avoid putting the worst possible meaning on the words.”


[39] ... At two places in his reasons the trial judge refers to libel, incorrectly, as an “intentional tort.” It is quite the opposite, as the tort is established simply by proof of publication: Breeden v. Black, 2012 SCC 19, [2012] 1 S.C.R. 666, at para. 20. While the intent of the speaker, as I will come to, may be relevant to the existence of an honest opinion and to malice, it is not to inform a finding of the meaning of the words.


[40] In rejecting both defences – justification and fair comment – the trial judge failed to turn his mind to whether the three defamatory passages are statements of fact to which the defence of justification would apply, or expressions of opinion that would give rise to the defence of fair comment. ....


[41] The trial judge’s failure to determine whether the defamatory words are statements of fact or expressions of opinion is a prerequisite to applying the defences, and is an error of law. If the defamatory statement is a statement of fact capable of objective proof, then the defence of justification must be considered. On the other hand, if the defamatory sting conveys an expression of opinion then the defence of fair comment may apply: see Downard, Law of Libel in Canada, 4th ed. (LexisNexis Canada, 2018), at paras. 11.27-11.28. As Binnie J. stated in WIC Radio Ltd. at para. 26:In Ross v. New Brunswick Teachers’ Assn. (2001), 201 D.L.R. (4th) 75, 2001 NBCA 62, at para. 56, the New Brunswick Court of Appeal correctly took the view that "comment" includes a "deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof." Brown's The Law of Defamation in Canada (2nd ed. (loose-leaf)) cites ample authority for the proposition that words that may appear to be statements of fact may, in pith and substance, be properly construed as comment. This is particularly so in an editorial context where loose, figurative or hyperbolic language is used (Brown, vol. 4, at p. 27-317) in the context of political debate, commentary, media campaigns and public discourse. See also, R. D. McConchie and D. A. Potts, Canadian Libel and Slander Actions (2004), at p. 340.


[46] The trial judge’s finding that the defamatory words were not on a matter of public interest is incorrect and constitutes an error in law. As McLachlin C.J.C. stated in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 100:This is a matter for the judge to decide. To be sure, whether a statement’s publication is in the public interest involves factual issues. But it is primarily a question of law; the judge is asked to determine whether the nature of the statement is such that protection may be warranted in the public interest. The judge acts as a gatekeeper analogous to the traditional function of the judge in determining whether an “occasion” is subject to privilege. Unlike privilege, however, the determination of whether a statement relates to a matter of public interest focusses on the substance of the publication itself and not the “occasion”. Where the question is whether a particular communication fits within a recognized subject matter of public interest, it is a mixed question of fact and law, and will therefore attract more deference on appeal than will a pure determination of public interest. But it properly remains a question for the trial judge as opposed to the jury. [emphasis added.]

[47] While I do not believe this case falls into the limited situation where the public interest involves a mixed question of fact and law referred to by McLachlin C.J.C., even if a determination of the public interest “involves factual issues” I would find the trial judge’s decision on this point to be unreasonable, and a palpable and overriding error.

[48] As Binnie J. stated in WIC Radio, at para. 30, “[t]he public interest is a broad concept.” In Grant v. Torstar Corp., McLachlin C.J.C. noted at para. 101 that one “must consider the subject matter of the publication as a whole.” She continued, at para. 105, that to be of public interest, “the subject matter ‘must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached’,” citing Brown, The Law of Defamation in Canada, 2nd ed. Scarborough, Ont.: Carswell, 1999 (loose‑leaf updated 2008, release 3) at vol. 2, at pp. 15-137 and 15-138. She also cautioned at para. 107 that an “[o]verly narrow characterization may inappropriately defeat the defence at the outset.”


Is the comment an honest expression of opinion? [SS: this apparently relates to the fair comment defence]

[53] The trial judge gave no reasons for his finding against Patrick on this issue. He simply said that Patrick was motivated by “ill will and spite,” which is relevant to malice, but not to honest opinion. He did not turn his mind, therefore, to the heart of the fair comment defence, which is that the opinion need not be “fair” at all. Rather, as the Supreme Court confirmed in WIC Radio, the test is whether anyone could honestly have expressed the defamatory comment on the proven facts. This is, quite deliberately, not a high test, and “protects obstinate, or foolish, or offensive statements of opinion, or inference, or judgment, provided certain conditions are satisfied. The word “fair” refers to limits to what any honest person, however opinionated or prejudiced, would express upon the basis of the relevant facts”: WIC Radio, at para. 49, quoting from Channel Seven Adelaide Pty. Ltd. v. Manock (2007), 241 A.L.R. 468, [2007] HCA 60, at para. 3 (emphasis added by Binnie J.).

[54] In recent years this point has been emphasized in suggesting the name of the defence itself is misleading. In Reynolds v. Times Newspapers Ltd., [1999] 4 All E.R. 609, [2001] 2 A.C. 127 at 615, Lord Nicholls discussed the wide scope of the defence and said that “the time has come to recognize that in this context the epithet ‘fair’ is now meaningless and misleading.” And the British Parliament adopted this suggestion in the Defamation Act 2013, c. 26, s. 3, when it codified the defence under the heading “honest opinion.”


[58] While ill-will and spite, or an improper purpose, may be evidence of malice, malice can only defeat the fair comment – or honest opinion – defence if subjective malice is the “dominant motive of the particular comment”: WIC Radio, at para 53. A person must be entitled to express one’s opinions about an individual that the speaker may dislike, perhaps intensely, and even wish that people will think less of that person as a result of what they say, but so long as the ill will is not the dominant motive the honest opinion defence protects the speaker. To be deprived of the defence simply due to the existence of ill-will or dislike of a person, would undermine the breadth of the “honest opinion” element, and inappropriately infringe the right of free speech: see, e.g., Whitehead v. Sarachman, 2012 ONSC 6641 (Div. Ct.) at paras. 54-57.

[59] I note that in England the courts have gone even further in narrowing the scope of malice. In Spiller v. Joseph, 2010 UKSC 53, at para. 108, the United Kingdom Supreme Court stated: “The fact that the Defendant may have been motivated by spite or ill-will is no longer material. The only issue is whether he believed his comment was justified.” Section 3 of the United Kingdom’s Defamation Act 2013 does not address malice at all, noting only that “[t]he defence is defeated if …the defendant did not hold that opinion.” See generally, Downard, Law of Libel in Canada, at paras. 11.56-11.59.
. Facchini v. Canada (Attorney General)

In Facchini v. Canada (Attorney General) (Ont CA, 2020) the Court of Appeal commented as follows on the defamation issue of malice:
[18] The claim of malice was not grounded in fact and was properly rejected. The trial judge correctly noted that malice refers to dishonesty or the use of the privileged occasion for an improper purpose, and that it is not limited to spite or ill-will: Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Incorporated, 2018 ONCA 383, 424 D.L.R. (4th) 514, at para. 33. He also noted that it depended on the circumstances of the case and reviewed in detail the relevant circumstances here. ....


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