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Defamation III

. Levant v. DeMelle

In Levant v. DeMelle (Ont CA, 2022) the Court of Appeal conducted a classic SLAPP-defamation (libel) appeal analysis. In this quote it considers the defence of fair comment, engaging in a useful analysis of what constitutes 'comment':
[63] The motion judge erred in concluding that “calling Levant a neo-Nazi sympathizer traverses too far into the realm of fact, or at least imputation of fact,” to permit a defence of fair comment. In so concluding, the motion judge committed the same error that was identified by the Supreme Court of Canada in WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420. In discussing the difference between comment and fact in that case, Binnie J., at para. 26, quoted with approval from the decision in Ross v. New Brunswick Teachers’ Assn., 2001 NBCA 62, 201 D.L.R. (4th) 75, at para. 56, where the New Brunswick Court of Appeal said that “comment" includes a “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof”. Binnie J. also cited Raymond E. Brown, The Law of Defamation in Canada (Scarborough: Carswell, 1994) (loose-leaf updated 2007, release 4), for the proposition that words that may appear to be statements of fact may, in pith and substance, be properly construed as comment. Of significance to this case, Binnie J. noted that:
This is particularly so in an editorial context where loose, figurative or hyperbolic language is used in the context of political debate, commentary, media campaigns and public discourse. [Citation omitted.]
[64] In the context in which it appears in the article, the statement that Mr. Levant is a neo-Nazi sympathizer is clearly a matter of comment. It therefore opens the door to the defence of fair comment. The elements of that defence are well‑established. They were set out recently in Blair v. Ford, 2021 ONCA 841, at para. 45:
There are five elements to the defence of fair comment:

(i) the comment must be on a matter of public interest;

(ii) the comment must be based on fact;

(iii) the comment, although it can include inferences of fact, must be recognizable as comment;

(iv) the comment must be one that any person could honestly make on the proved facts; and

(v) the comment was not actuated by express malice.
[65] Where Mr. DeMelle’s reliance on this defence falters is on the fourth element. Based on the record before us, no person could honestly express that opinion on the proved facts. Undoubtedly, that is the reason why, immediately upon the Notice of Libel being delivered, Mr. DeMelle removed that comment from the article. The removal of the comment is not a defence to the claim for defamation, however. Rather, it is relevant to the issue of any damage that may have been caused by it: Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (Toronto: Carswell, 1994) (loose-leaf updated 2020, release 5), ch. 25 at 124-25.
. Levant v. DeMelle

In Levant v. DeMelle (Ont CA, 2022) the Court of Appeal conducted a classic SLAPP-defamation (libel) appeal analysis. In this quote is considers the defamation defence of responsible journalism:
[35] I do not see anything in the requirements of the defence of responsible journalism that places a burden on a journalist to interview every individual who might conceivably have something to offer on the subject being written on. Certainly, no such burden is to be found in the seminal decision on this defence, Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640. Indeed, placing such a burden on journalists would seem to be inconsistent with the point that McLachlin C.J. makes in Grant, at para. 113:
The legal requirement to verify accuracy should not unduly hamstring the timely reporting of important news.
....

[39] Rebel News’ second attack on the motion judge’s conclusion is its contention that Mr. Kohls acted out of malice, and that fact precludes Al Jazeera’s reliance on the defence. The motion judge did not directly address the contention that Mr. Kohls was actuated by malice. However, his conclusion that the defence of responsible journalism could succeed carries with it the implicit rejection of any allegation of malice, since the defence of responsible journalism is not available if malice is present. As McLachlin C.J. explained in Grant, at para. 92:
Furthermore, it makes little sense to speak of an assertion of responsible journalism being defeated by proof of malice, because the absence of malice is effectively built into the definition of responsible journalism itself.
[40] Rebel News’ third and final challenge to the motion judge’s conclusion regarding the defence of responsible journalism is its contention that the motion judge erred in finding that Rebel News was provided with a proper opportunity to respond to the article and YouTube video before they were published. It submits that there was no evidentiary foundation for the motion judge’s conclusion to the contrary at para. 66 of his reasons, to which I referred above.

[41] There is no question that, in the context of a defence of responsible journalism, the opportunity for the target of the expression to respond is important. McLachlin C.J. makes this point in Grant, at para. 116:
In most cases, it is inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond. [Citation omitted.]
. Blair v. Ford

In Blair v. Ford (Ont CA, 2021) the Court of Appeal considered the defamation defence of fair comment:
[45] There are five elements to the defence of fair comment:
(i) the comment must be on a matter of public interest;

(ii) the comment must be based on fact;

(iii) the comment, although it can include inferences of fact, must be recognizable as comment;

(iv) the comment must be one that any person could honestly make on the proved facts; and

(v) the comment was not actuated by express malice.
. Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse)

In Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse) (SCC, 2021) the Supreme Court of Canada faced an interesting conflict between the dual quasi-constitutional 'rights and freedoms' of expression and equality (ie. non-discrimination). The case was brought to the Quebec equivalent to a human rights Commission (Commission des droits de la personne et des droits de la jeunesse) under the provincial Charter of Human Rights and Freedoms, but the court openly acknowledged that Charter law dealt with the same issues and that they should strive to establish consistent law in these important areas.

The case involved a physically disabled child entertainer being ridiculed for features of his physical disability by a comedian. One joke even focussed on the possibility of his being drowned.

While the case drew significant media attention for it's compelling facts, much of it turned on the structure of the Quebec human rights and freedoms statute. The Supreme Court took the oppourtunity to re-direct a line of Quebec cases that both effectively dispensed with any causation of 'damage' requirement [I use the term 'damage', but more accurately in the context the harm is "social effects of discrimination, such as the perpetuation of prejudice or disadvantage": para 28], and with a requirement that the two rights be 'balanced' against each other. It then proceeded to do both of those things - ie. consider damage and balancing.

On damages, the case relied heavily on a previous Saskatchewan Charter case, Saskatchewan (Human Rights Commission) v. Whatcott (SCC, 2013) which - with similar expression-discrimination 'balancing' task (here, pamphlets vilifying gays) - struck down portions of the Saskatchewan human rights statute that prohibited expression that "ridicules, belittles or otherwise affronts the dignity" of the complainant. However the court sustained that portion that dealt with "hatred" - albeit on a narrow reading. The strike-down aspect was basically justified on the general 'tolerance' accorded expression in our legal system, and "hatred" was read-down to “the most extreme type of expression that has the potential to incite or inspire discriminatory treatment against protected groups on the basis of a prohibited ground” (Whatcott, para. 48).

The court obviously viewed the impugned expression in Ward as properly categorized as 'ridicule', and thus - consistent with the result in Whatcott - would not locate this expression as 'hatred', which would have made it legally discriminatory. The court also drew the distinction between individual targeting (the facts here) and collective targeting (presumably all disabled person), as further justification for ruling against the complainant. Throughout the case, the court lamented the fact that the litigation had not been commenced as a defamation action - obviously preferring that remedy.

In the result, it seems obvious that the court is recommending in future a defamation remedy for such non-hatred, individual-directed expression - throwing the law into the legal mess that we have been left with after Bhadauria (no lawsuits for discrimination) by forcing people to further and further hair-splitting. Disabled people who are insulted, even if the insult is directly-based on their disability, will have to accurately predict each court's predilection on this jurisdiction issue. As though physically disabled people didn't have enough problems coping with an overwhelmingly able-bodied-favouring world.

In my view the weakest aspect of the tribunal's ruling below is that the comedian "had made comments concerning Mr. Gabriel’s disability, although he had not chosen Mr. Gabriel because of his disability" as though this were somehow excusing of the magnitude of the ridicule [para 16]. It was plain - and the Supreme Court seems to agree with me [para 91] - that the comedian overtly sought out and integrated into his routine issues that would challenge levels of social tolerance, and it is difficult to believe that he was ignorant of the effect of his choice of targets as he planned this 'untouchables' routine. However the court tolerated this tribunal finding out of a disengenuous appellate deference.

I suppose my main objection to the result in this case should have been expressed when Whatcott came down in 2013, as both gays (Whatcott) and disabled people (Ward) (the latter of which I count myself) are - like most typical human-rights code protected categories - similar in that they don't 'chose to be that way', and in that sense are equally 'innocent' and deserving of protection. That would have been the time to argue against the 'hatred'-only prohibition of expression against those on the human-rights protected list. But - to my shame - I wasn't disabled in 2013 and so did not focus on Whatcott.

However, in hindsight, it seems that an appropriate concession to even the very high status accorded expression in our culture that such constitutionally (and quasi-constitutionally) meritorious groups would be that open, disability-directed ridicule be prohibited, even if by the relatively weak remedies of provincial HR statutes.

Perhaps this is what the court alludes to when it gives itself a legal 'out' in the following passage:
[63] In our view, limits on freedom of expression are also justified where it is used to disseminate expression that, even if it does not fully meet the definition of hatred set out in Whatcott, nonetheless forces certain persons “to argue for their basic humanity or social standing, as a precondition to participating in the deliberative aspects of our democracy” (Whatcott, at para. 75; see also Keegstra, at p. 765). As Professor Waldron writes:
[A] person [must be able] to walk down the street without fear of insult or humiliation, to find the shops and exchanges open to him, and to proceed with an implicit assurance of being able to interact with others without being treated as a pariah. [p. 220]
The individual/collective insult distinction made in Ward seems further disingenuous and unpersuasive. Why should a disabled individual insulted on the basis of their disability have fewer remedies than those effected by expression directed at a group? Why does it matter to them (and for that matter to the disabled 'group' to which they belong) that the offensive expression was not 'targeted' at them, however dubious that claim may be in the present case?

Finally, the essence of the fundamental doctrinal legal dispute may be at least identified by whether the reader agrees or disagrees with the majority in Ward when they say:
[109] In both his video and his show, Mr. Ward mocked some of Mr. Gabriel’s physical characteristics. Making fun of a person’s physical characteristics may be repugnant; it most certainly is when the person in question is a young person with a disability who contributes with determination to society. But expression of this kind does not, simply by being repugnant, incite others to detest or vilify the humanity of the person targeted (Whatcott, at paras. 90‑91).
If you truly have grounds for ridicule, you can do it without relying on the target's race, sexual orientation, disability or any other protected grounds. To do so is simply offensive and lacks the poignancy that we expect from quality comedy - it has no redeeming value otherwise. Why should we tolerate that? Are the able-bodied majority of the court so certain of their view that such expression does not "incite others to detest or vilify the humanity of the person targeted"? I, and most other disabled people, would have little hesitation in disagreeing with this conclusion. This ruling, despite it's frequent analytic competency, seems generated from a by-gone era.

. Welch v. Quast

In Welch v. Quast (Div Ct, 2021) the Divisional Court considered the standard of pleadings in defamation in Small Claims Court:
[19] Defamation actions must plead the following elements: (i) particulars of the alleged defamatory words; (ii) publication of the defamatory words by the defendant; (iii) to whom the words were published; and (iv) that the words were defamatory of the plaintiff in their plain and ordinary meaning or by innuendo: The Capital Catalyst Group Inc. v Veritas Investment Research Corporation, 2017 ONCA 85 (CanLII) at paras. 23-24.

[20] The plaintiff amended his claim several times. It is frankly impossible to discern a cause of action in defamation in any of those versions of the claim. On a most liberal reading, I allow he claims the emails were false and that he was therefore defamed. However, no version of his pleading identifies the words in the impugned email that are allegedly defamatory.

[21] Review of Small Claims pleadings promotes a liberal approach, where litigants are not required to meet the higher standards of the Superior Court: 936464 Ontario Ltd. (cob Plumbhouse Plumbing & Heating) v Mungo Bear Ltd., 2003 CanLII 72356 (ON SCDC) However, I accept this liberal approach does not abrogate the plaintiff’s obligation to meet the requirements for pleading defamation even on a liberal reading of the statement of claim. The plaintiff’s claim went through a number of amendments. The final amendment before trial includes a claim for “defamation of character” but fails to identify the impugned words in the email that allegedly defamed him. In my view, this is fatal to the fundamental requirements for a defamation pleading, even on a less strict application in small claims court. It was therefore an error of law to conclude that defamation was sufficiently pleaded.
. Welch v. Quast

In Welch v. Quast (Div Ct, 2021) the Divisional Court stated these necessary elements for defamation:
[24] In order to prove defamation, a plaintiff must establish three elements on a balance of probabilities: (1) that 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; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff: Grant v. Torstar Corp, 2009 SCC 61 at para 28.
. AA v. BB

In AA v. BB (Ont CA, 2021) the Court of Appeal considered statutory qualified privilege in a defamation case [under the Child, Youth and Family Services Act, 2017]:
[28] More relevant to the issue of whether the Defamatory Statements were made on an occasion of qualified privilege is s. 125 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). That section sets out the obligation of a person to report information to a society where there are reasonable grounds to suspect that a child has suffered various kinds of harm. Section 125(10) creates a form of statutory qualified privilege:
This section applies although the information reported may be confidential or privileged, and no action for making the report shall be instituted against a person who acts in accordance with this section unless the person acts maliciously or without reasonable grounds for the suspicion. [Emphasis added.]
[29] This statutory qualified privilege attaches to statements made in a complaint to a society, as well as to statements made by a person to the society in the course of an investigation: W. (D.) v. White, 2001 CarswellOnt 5892 (S.C.), at paras. 85-92, aff’d (2004), 2004 CanLII 22543 (ON CA), 189 O.A.C. 256 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 486; Nadejda Ryabikhina v. Stanislav (Stan) Savranskiy, 2010 ONSC 3860, at paras. 24-25, aff’d 2011 ONCA 219, leave to appeal to S.C.C. refused, 35927 (July 24, 2014); Sullivan v. Draper-Sereda, [2006] O.J. No. 4671 (Small Claims).

....

[33] In his discussion of the applicable legal principles, at para. 68 of the Second Reasons, the trial judge recognized that the defence of qualified privilege could be defeated by actual or express malice or if CC’s statements exceeded the limits of the applicable duty or interest: Korach v. Moore (1991), 1991 CanLII 7367 (ON CA), 1 O.R. (3d) 275 (C.A.), at pp. 278-80, leave to appeal refused, [1991] S.C.C.A. No. 30; Bent v. Platnick, 2020 SCC 23, 449 D.L.R. (4th) 45, at paras. 128 and 136. The limits of the privilege were explained by this court in RTC Engineering Consultants, at para. 18:
Not everything said or written on an occasion of qualified privilege is protected. As is evident from the term “qualified privilege” itself and from the previous discussion, the privilege is not absolute. It may be lost in one of two ways. First, it may be lost if the dominant motive for making the statement was malice. In this context malice means not just ill will towards another but any ulterior motive that conflicts with the interest or duty created by the occasion. And it includes recklessness. Both dishonesty and a reckless disregard for the truth may amount to malice. Second, a privilege may be lost if the statement is not commensurate with the occasion, either because the statement is not germane and reasonably appropriate to the occasion or because the recipients of the statement have no interest in receiving it. Put differently, to maintain privilege a defendant must communicate appropriate information to appropriate people. [Emphasis added.]
[34] In considering whether malice by the maker of the statement defeats qualified privilege, the primary consideration is the state of mind of the maker at the time the words were published: Brown, at ch. 16.2(2). The presence of an improper motive is the critical consideration. The privilege will be lost if it is shown that the statement was published for a collateral motive unrelated to the privilege’s purpose: Brown, at ch. 16.3(1). Accordingly, malice is essentially a question of good faith. The privileged occasion must be used for the purpose for which it is given; it must not be misused or abused by a defendant: Brown, at ch. 16.3(1).

[35] In RTC Engineering Consultants, this court, at para. 18, identified some aspects of the factual inquiry when it stated that malice in the context of qualified privilege “means not just ill will towards another but any ulterior motive that conflicts with the interest or duty created by the occasion. And it includes recklessness.”
. PMC York Properties v. Siudak

In PMC York Properties v. Siudak (Div Ct, 2021) the Divisional Court explained the 'modern, relaxed approach' to defamation pleadings [paras 5-7, 38, 45-65].

. PMC York Properties v. Siudak

In PMC York Properties v. Siudak (Div Ct, 2021) the Divisional Court considered the issue of what are essentially defamation claims cast as other torts, and how Canadian courts are willing the strike them in favour of the protections accorded defamation claims [paras 87-95].

. Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation (I)

In Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation (I) (Ont CA, 2021) the Court of Appeal considered the contrast between the torts of defamation and negligence, particularly in light of the additional protections that defamation has (eg. notice, qualified privilege) [para 52-68].

. Zoutman v. Graham

In Zoutman v. Graham (Ont CA, 2020) the Court of Appeal set out basics of a defamation tort claim:
[20] A defamation claim requires a claimant to prove three elements, on a balance of probabilities: (i) the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (ii) the words in fact referred to the plaintiff; and (iii) the words were communicated to at least one person other than the plaintiff: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 , at para. 28. ...

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