Cases published to March 4, 2019
Click on a Case Name for full text (links off site).
2019 March 4
The Ontario Court of Appeal set aside a lower court order dismissing this defamation action as a SLAPP pursuant to s. 137.1 of the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43. The lower court misinterpreted s. 137.1(4)(a)(ii) by requiring the plaintiff to “establish that the [defendant newspaper] has no valid defence whatsoever.” On a proper interpretation of the anti-SLAPP legislation, it was sufficient for the plaintiff resisting dismissal of its defamation claims to “show that a reasonable trier could reject all of the various defences put in play by the [defendant]. A determination that a defence ‘could go either way’ in the sense that a reasonable trier could accept it or reject it is a finding that a reasonable trier could reject the defence.”
The Court of Appeal held that the claim did not have the hallmarks of a classic SLAPP. There was no history of the plaintiff using litigation or the threat of litigation to silence critics. There was no financial or other power imbalance that favours the plaintiff over the defendant. There was no suggestion of any punitive or retributory purpose motivating the lawsuit. As to harm, the plaintiff “produced evidence that it has lost contracts, potential construction partners, and potential funding from lenders as a result of the articles written in the [defendant newspaper].” It was “enough that [the plaintiff] presented specific and credible evidence of potentially significant pecuniary damages.” The Court of Appeal held that “this litigation smells of a genuine controversy. It should be tried on its merits.”
2019 March 4
The Ontario Court of Appeal set aside a lower court order dismissing this defamation action as a SLAPP pursuant to s. 137.1 of the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43. The claim relates to a tweet and two articles, one of which linked to a prior article about the plaintiff’s role in the “shadow cabinet” of a political party. The Court of Appeal held that this lawsuit “has none of the recognized indicia of a SLAPP lawsuit.” In this case, if there was a power imbalance between the defendant and the plaintiff, the Court of Appeal stated “it would appear to be in favour of the defendant.” The plaintiff satisfied his onus of proving that it is possible the defence would not succeed. He did not have to prove the defence has no hope of success. The Court of Appeal stated that “fair disagreements over policies and principles can be undertaken, indeed ought to be undertaken, through responsible discourse. Whatever disagreements there may be between the [plaintiff’s] views and the [defendant’s] views, those views can be exchanged and debated without the need for personal attacks. It remains open to the [defendant] to express its views on issues that concern it … without engaging in speech that is arguably defamatory.”
2019 February 25
New Dermamed Inc. v Sulaiman, 2019 ONCA 141, dismissing an appeal from 2018 ONSC 2517
The Ontario Court of Appeal affirmed a lower court ruling order dismissing this defamation action as a SLAPP pursuant to s. 137.1 of the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43, despite an erroneous interpretation of the statute. The claim related to Google reviews written by the defendant. The lower court mistakenly required the plaintiff to show the pleaded defence of fair comment could not succeed, whereas the correct test required the plaintiff to “convince the motion judge that, looking at the motion record through the reasonableness lens, a trier could conclude that none of the defences advanced would succeed. If that assessment is among those reasonably available on the record, the plaintiff has met its onus.” “Put another way, the onus on the [plaintiff] was not show that there was no possibility that the defence of fair comment could succeed but, rather, just that it was reasonably possible that a trier could conclude that the defence would not succeed.” Nevertheless, the Court of Appeal held the defamation claims should be dismissed because the plaintiff failed to satisfy the “balancing exercise” under s. 137.1(4)(b). “While the [plaintiff] has filed evidence of some lost business as a result of the reviews that the [defendant] posted, it has not provided any quantification of those losses nor identified how those losses relate to its overall business. The [plaintiff] has not … established that any harm that it has suffered at the hands of the respondent is ‘sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression’”
2019 February 20
The Ontario Court of Appeal upheld a lower court order dismissing this defamation action as a SLAPP pursuant to s. 137.1 of the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43. The claims related to Facebook posts and comments. Factors relevant to the “balancing process” described in s. 137.1(4)(b) were determinative. The Court of Appeal stated that “any monetary damages suffered by a plaintiff, or likely to be suffered by a plaintiff … is a key feature in the assessment of the harm suffered or likely to be suffered by the plaintiff”. In this case, the plaintiff “offered no evidence of any monetary damage [and] there is no reason to think that any damages awarded … would be anything more than modest, if not nominal.” “Nor is there any evidence of any reputational harm done to the [plaintiff’s] business. There is no suggestion that the [plaintiff], a corporation, suffered any damage to, or was likely to suffer any damage to, its business reputation as a result of the [defendants’] Facebook posts.” The Court of Appeal also noted that the Facebook posts “were posted only for a few days and to a limited audience of likeminded individuals also concerned about potential damage to the environment.” One of the defendants had made a timely and unqualified apology. On the other hand, the defendants’ statements “related to a matter of significant public importance.” In the circumstances, “the public interest in protecting the [defendants’] expression” outweighed the plaintiff’s interest in protection of reputation.
2019 January 30
The Ontario Superior Court of Justice granted summary judgment to the plaintiffs and ordered a permanent injunction requiring the defendant to “take all necessary steps to remove all audio and video recordings, and written statements, of or about any and all of the plaintiffs, from the internet or any other location in which they are accessible to the public, and to destroy all such audio and video recordings.” The Court found that the defendant had made “approximately 110 postings of nearly 60 videos under at least eight different aliases to at least three popular internet platforms [YouTube, Facebook and Twitter]” and had posted defamatory Google reviews. The defences of fair comment or qualified privilege did not apply. The court held, in any event, that the defendant “was motivated by malice”. The defendant was ordered to pay $75,000 in costs.
2018 December 7
The Ontario Superior Court of Justice dismissed this defamation action concerning an article published by a scientific journal on its website and in print. The Court held that defences of justification (substantial truth), qualified privilege, fair comment and responsible communication were available to the defendants. The plaintiff’s submission that the defendants were actuated by malice was rejected.
2018 November 26
Cummings v Burlington Radio Control Modelers,  O.J. No. 6698
The Ontario Superior Court of Justice (Small Claims Court) summarily dismissed this action including defamation claims relating to emails. To the extent the defamation claims actually disclosed a cause of action, the emails were in most cases not defamatory or were alternatively defensible on the basis of qualified privilege.
2018 September 17
The Ontario Superior Court of Justice dismissed defamation claims relating to certain emails, tweets and posts on Soundcloud and Facebook. Certain emails were accurate and truthful. Other claims based on emails to YouTube and Premier Muzik should be tried in the United States, and were therefore dismissed on that basis. The Court rejected the alternative defence submission that the lawsuit was a SLAPP, ruling that it did not concern people at large, or involve the welfare of citizens or matters of notoriety, controversy or debate.
2018 September 10
The Superior Court of Quebec dismissed defamation claims relating to a CBC television broadcast and an article on the CBC website. The court held that although there were some inaccuracies, they were explained and related to tangential matters. The defendant had no duty to correct those inaccuracies on its website. The reporting was largely true and related to a subject of public interest, concerning municipal government and zoning changes.
2018 August 30
The Ontario Court of Appeal upheld the lower court decision (2016 ONSC 6785) which dismissed this action as a SLAPP pursuant to s. 137.1 of the Ontario Courts of Justice Act, RSO 1990, c. C.43. The claims concerned posts on an Internet bulletin board which were removed within a week following a demand by the plaintiff’s lawyers. The lower court decision held the bulletin board posts concerned the suitability of the defendant corporation’s owner to be elected as a Member of Parliament given his prior senior management position with the corporation. “No one disputes that communications directed at a person’s suitability to hold elected office, particularly when made in the middle of an election campaign, are communications relating to a matter of public interest.” The Court of Appeal held that because there were no grounds to believe that the defendant corporation (a competitor of the plaintiff) was connected to the allegedly defamatory posts, the lawsuit was devoid of merit. The public interest in freedom of expression about the electoral process outweighed the harm to the plaintiff, given that the posts never reappeared, they were seen by a handful of people , and there was little (if any) evidence of their capacity to harm the plaintiff.
2018 August 30
The Ontario Court of Appeal dismissed this libel action as a SLAPP pursuant to s. 137.1 of the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43. The plaintiff city councillor claimed against the unsuccessful candidate and her campaign team as well as a local radio station over remarks made during a municipal election, including remarks contained in Facebook posts and tweets. The Court of Appeal held that the lower court had erred by attributing various statements made by the individual defendants to them as a group: “Liability is personal, absent evidence that the tortious conduct is the product of a conspiracy or common design.” This error also invalidated the assessment of harm.
Although claims against the defendant candidate and one member of her campaign team had substantial merit, the “public interest” analysis under s. 137.1(4)(b) of the Courts of Justice Act required those claims be dismissed. Few people viewed the Facebook posts and the plaintiff “demonstrated virtually no harm, actual or potential, flowing to him from [the] tweets.” “[T]here was almost no evidence of any special damage.” “[T]he plaintiff’s] continued electoral success strongly suggests that any harm to his reputation was minimal. Any award for general damages would be modest to minimal to reflect the minimal impact on his reputation.” “[T]he message to be taken from the enactment of s. 137.1 is that not every step over the defamatory foul line warrants dragging the offender through the litigation process.”
2018 August 30
The Ontario Court of Appeal upheld the lower court decision dismissing as a SLAPP pursuant to s. 137.1 of the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43. The claims concerned comments made by the defendant on Twitter. The lower court correctly determined that the tweets related to a matter of “public interest”. Although the lower court’s analysis of the balancing test under s. 137.1(4)(b) was deficient, the lower court had correctly focused on the evidence of damages when assessing the harm that the plaintiff corporation had suffered or was likely to suffer as a result of the tweets. Nothing in the record before the lower court judge would support anything more than nominal general damages. The impugned tweets were “[i]n keeping with the medium and the intended audience, … conclusory and, in some respects, sarcastic.” There was “no basis, however, to conclude that they are deliberately false or intended to mislead.” In the circumstances, the plaintiff failed to show that the harm caused or likely to be caused to it by the impugned tweets was “sufficiently serious” to outweigh the public interest in protecting the defendant’s right to freedom of expression.
2018 August 30
Platnick v. Bent, 2018 ONCA 687, reversing 2016 ONSC 7340
The Ontario Court of Appeal set aside the lower court order dismissing this action as a SLAPP pursuant to s. 137.1 of the Ontario Courts of Justice Act, R.S.O. 1990, c. C 43. The claims by the plaintiff medical doctor against the defendant lawyer concerned an email posted on a “Listserv” which had about 670 subscribers. The email was “leaked” to an advocacy organization and thereafter to the news media. Although the email related to a matter of public interest, the plaintiff had proven on a balance of probabilities that “there are reasonable grounds to believe both that the plaintiff’s claim has substantial merit and that the defendant … has no valid defence.” The question for the court in this case was as follows: “Could a reasonable trier of fact conclude that [the plaintiff] had a real chance of establishing that he was libelled and could a reasonable trier of fact conclude that [the defendant] had no valid defence to the allegation? If affirmative answers to both questions were within the range of conclusions reasonably available on the motion record, the plaintiff had met his onus under s. 137.1(4)(a).” In answering this question, the court is not making finds of fact but assessing, at a preliminary stage, and through the “reasonableness lens,” the merits of the plaintiff’s claim and the validity of any defences advanced.
A valid defence is a defence that would succeed at trial. In the instant case, the Court of Appeal considered that the plaintiff had met his onus of showing reasonable grounds to believe that the pleaded justification defence would not succeed and was therefore not a “valid defence.” The same applied to the pleaded defence of qualified privilege: “The applicability of the defence of qualified privilege … is reasonably open to different interpretations based on the evidence adduced on the motion. A reasonable tried could conclude that [the defendant] went beyond the occasion of qualified privilege … In other words, there are reasonable grounds to believe that the defendant would not succeed at trial …”
Balancing the harm to reputation versus the public interest in free speech as required by s. 137.(4)(b), the Court of Appeal held in favour of the plaintiff. Section 137.(4)(b) “requires the court to a consider, among other things, the motives of both the plaintiff in commencing the action and the defendant in making the impugned statement.” A motion judge may begin by asking: “Does this claim have the hallmarks of a classic SLAPP? The indicia of a SLAPP suit include: – a history of the plaintiff using litigation or the threat of litigation to silence critics; – a financial or power imbalance that strongly favours the plaintiff; – a punitive or retributory purpose animating the plaintiff’s bringing of the claim; and – minimal or nominal damage suffered by the plaintiff.” In this case, the general damages are potentially significant and the plaintiff had given “extensive evidence in his affidavit about the negative impact of the email on his professional reputation.”
2018 August 30
The Ontario Court of Appeal upheld the lower court’s refusal to dismiss this action as a SLAPP pursuant to s. 137.1 of the Ontario Courts of Justice Act, R.S.O. 1990, c. C 43. The claims concerned Facebook posts about a motor vehicle accident. The defendant had failed to demonstrate, as required by s. 137.1(3), that his Facebook posts related to matters of “public interest” as that term is defined in Grant v Torstar Corp. 2009 SCC 61. There is a “distinction between matters of public interest and a matter that, because of its notoriety, might be of some interest to the public.” “A defendant who makes statements about a purely private matter cannot gain the protection of s. 137.1(3) by interspersing references to some other topic that may relate to a matter of public interest.” “[To] the extent that the public interest does not rise about ‘mere curiosity or prurient interest’, it cannot satisfy the public interest requirement…”
2018 August 27
The Ontario Superior Court of Justice (Small Claims Court) rejected defence submissions that this defamation lawsuit brought by a condominium property manager and its president against a condo unit holder should be dismissed as a SLAPP pursuant to s. 137.1 of the Ontario Courts of Justice Act, R.S.O. 1990, c. C43. The claims concerned emails sent by the defendant to his fellow members of the condominium’s Board of Directors. The Court held that the emails concerned “ordinary and routine matters in condominiums – not matters of public interest but rather matters of private interest which would normally be dealt with by the board of directors of a condominium corporate and its property manager.” Nothing about the emails or their subject matter rose to the level of the “public interest” within the meaning of the anti-SLAPP statute.
2018 July 27
The Ontario Superior Court of Justice dismissed an action in which the plaintiff made “broad allegations” of defamation, slander and libel and sought an order requiring the removal of certain content from a website. The Court noted that the website owner and operator who controlled its contents was not named as a defendant in the statement of claim. Various statutory provisions made it clear that the website operator “is a separate legal entity” from the named defendants, who were not employees of that entity. In the circumstances, the defendants could not be liable.
2018 July 11
The Quebec Court (Civil Chamber) dismissed this action as a “poursite-baillon” [equivalent to a SLAPP] pursuant to the Quebec Code de procedure civile, which authorizes a court to summarily dismiss an abusive claim. The claim concerned an anonymous comment posted on a blog. The Court held that it expressed the opinions of a reader reflecting his or her evaluation of various people who spoke at a meeting which involved a subject of public interest. The defendant blog was not liable for permitting the publication of that commentary. The Court held this lawsuit was an excessive response to a banal, ironic personal opinion published at the conclusion of an article which was not about the plaintiff and in any event, was surrounded by 42 other comments.
2018 July 5
The Ontario Superior Court of Justice summarily dismissed a claim for libel against Crime Stoppers but permitted a claim against the Ottawa Police to proceed to trial. The claims concerned a still image captured by police from a shopping mall surveillance video which depicted the plaintiff taking an unattended purse and heading for a mall exit. The caption posted with that image on the Crime Stoppers website read: “Ottawa: Purse Snatching in Downtown Mall.” Accompanying text read in part “a female suspect stole a purse while walking” through the mall. In fact, the plaintiff was entirely innocent: she was acting as a “good Samaritan” and had taken the purse to the Ottawa Transit Authority lost and found. The plaintiff’s lawyer sent a registered and fax letter to Crime Stoppers informing them the purse was in the lost and found and demanding the removal of the misleading website post. There was a delay by either Crime Stoppers or the police in removing the misleading post. Nevertheless, the Court held that Crime Stoppers was entitled to the statutory immunity provided by section 3(3) of the Ontario Libel and Slander Act because it had merely published a “fair and accurate synopsis in a broadcast of a notice issued for the information of the public by a public authority”. The Court noted that the plaintiff did not allege or submit evidence of malice by Crime Stoppers. However, although the libel claim was barred, the Court permitted the plaintiff to pursue a possible negligence claim at trial against Crime Stoppers.
2018 June 28
The Ontario Superior Court of Justice dismissed a defamation action by a politician over an article and tweet pursuant to s. 137.1 of the Courts of Justice Act (Anti-SLAPP provision). The article was republished in a tweet which contained a hyperlink to the original article.
2018 June 26
The Quebec Court (Civil Chamber) dismissed a defamation action over Facebook comments. There was no evidence concerning the identity of people who became aware of the words alleged to be defamatory or the effect of those words on them. In the opinion of the Court, no ordinary citizen reading the words published by the defendants on Facebook and not aware of the extrinsic facts would understand anything. There was no cause and effect. Moreover, the numerous mistakes in the typed text added to the incomprehension. This case simply involved the clumsy expression of a negative opinion.
2018 June 21
The Alberta Court of Queen’s Bench rejected a defence application for a summary dismissal of this defamation action concerning posts on Facebook and elsewhere. The defendants admitted that the statements at issue were published, primarily on the internet, and clearly referred to the plaintiffs. The defendants argued, unsuccessfully, that the posts complained of were not defamatory. The Court considered that the reactions of others to the various internet posts showed they were defamatory. “The vitriolic nature of many of the reactions … leads me to question whether they can be said to have come from reasonable and fair-minded people. Nevertheless, they manifest damage to the [plaintiffs’] public reputations…” The Court also concluded that factual disputes prevented the Court from evaluating the defences of justification, fair comment and responsible communication without the testimony of witnesses and an assessment of their credibility at trial.
2018 June 21
The Alberta Court of Queen’s Bench dismissed a defence application for summary dismissal of two lawsuits against a husband and wife over negative content on the Internet. The facts before the Court indicated that the husband was the primary actor in the impugned internet postings and other actions, but the Court noted the plaintiffs had provided evidence that the defendant wife was involved in Facebook postings. The Court concluded that it need to hear viva voce testimony and make an assessment of credibility in order to arrive at a fair and just determination of the issues. With respect to the defamation claims, the court held that assertions on the husband’s Facebook profile that the plaintiffs think they can endanger the public and references to the individual plaintiffs “Daddy’s little boy” and a “loser of the highest calibre” are defamatory. “The vitriolic nature of many of the reactions [to the posted comments] quoted by the [plaintiffs] leads me to question whether they can be said to have come from reasonable and fair-minded people. Nevertheless, they manifest damage to the [plaintiffs’] public reputations.”
2018 June 20
The Ontario Superior Court of Justice refused to dismiss this action as a SLAPP pursuant to s. 137.1 of the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43. The plaintiffs claimed the defendants published “invective” against Muslims in media clips distributed on an Internet website and on YouTube. The Court stated: “Merely uttering something in a forum or at an event where matters of public interest are being discussed does not make the expression a matter of public interest within the meaning of s. 137.1 … For the purposes of the proper application of the anti-SLAPP provisions, the true nature of the expression, and not just the setting in which it takes place, must be carefully scrutinized before it is permitted to pass the first hurdle of the test.” “[W]here the expression can reasonably be interpreted as both hate communication and a communication on a matter of public interest, s. 137.1 does not extend its protection.”
2018 June 15
The Alberta Court of Queen’s Bench made an order permitting certain amendments to an Amended Amended Statement of Claim in a lawsuit filed in April 2011 over a CBC Fifth Estate program which aired on February 13, 2009. The Court permitted additional claims relating to the –re-airing of the same CBC broadcast, plus a new Internet defamation claim, plus amendments elaborating on the original claims relating to the posting of the broadcast on “the CBC internet web page (including associated or linked webpages).” The Court also permitted an amendment to allege that certain video and commentary “repeated” the defamatory sensationalism already pleaded in the original claim. Other amendments seeking to plead that the additional video and commentary “advanced” and “expanded” on the defamatory sensationalism were rejected. In this regard, the plaintiff AARC argued unsuccessfully that “the existence of the Internet Broadcast on CBC’s website constitutes a distinct cause of action for each and every day that the Internet Broadcast is posted on the CBC website.” The Court stated: “I find that the continued existence of a statement or broadcast on a website does not amount to a daily republication of that statement for the purposes of renewing the limitation period perpetually. These arguments do not help AARC add claims that are otherwise out of time and are not related to the conduct, events or transactions set out in the original pleadings.”
2018 June 10
The Ontario Superior Court of Justice dismissed an application by the defendant Banerjee for a dismissal of the defamation claims against him pursuant to section 1371.1 of the Courts of Justice Act (Anti-Slapp provision). The alleged defamation related to the posting of eight video-clips of a public demonstration outside the plaintiff’s restaurant on the Internet on Freedomreport.ca and YouTube. The Court held that the impugned remarks of the defendant share “all the essential hallmarks and attributes of an expression that is not worthy of protection under the anti-SLAPP provision.” “Merely uttering something in a forum or at an event where matters of public interest are being discussed does not make the expression a matter of public interest within the meaning of s. 137.1.”
2018 June 8
The Ontario Superior Court of Justice dismissed a counterclaim by the defendant alleging the plaintiff mayor defamed him in a comment published in an online newspaper concerning the dismissal of the defendant’s lawsuit against a town councillor (and the town) concerning the councillor’s ability to sit on council. The Court held that “the statements in the post are substantially true” and that the mayor “has made out the defence of fair comment.” “I find that the comments are recognizable as comment and that a reasonable person could honestly express such comments based on those facts.”
2018 May 29
The Ontario Superior Court of Justice granted a summary judgment application by a defendant and dismissed this defamation lawsuit on the basis that certain Twitter postings concerning the plaintiff were true. The Court stated: “First, the defendant`s version of events is corroborated by … other affidavits. Second, it is undisputed that the plaintiff and the defendant were unknown to each other prior to the event, so the defendant had no motive to post these things about the plaintiff unless they were true. Third, if the defendant was motivated by malice as the plaintiff contends, he would likely have made far worse allegations that he did. Fourth, the plaintiff’s language in his affidavit … is confirmatory of the allegations…”
2018 May 18
The Quebec Superior Court dismissed the plaintiff’s claims against the defendant over an anonymous, defamatory email from a “gmail” address that was given broad dissemination to the heating and cooling industry in Quebec. The defendant and its management categorically denied being the authors of the email. The plaintiff was able to show that three prior emails from a “hotmail” address emanated from an IP address in Laval and that Bell Canada was the ISP. The plaintiff was also able to show that the IP address relating to the three “hotmail” emails was associated with a local bar, which was frequented from time to time by employees of the defendant. However, the defamatory “gmail” email related to Internet access pertaining to an electronics retailer. The Court declined to make a finding, based on circumstantial evidence, that the defendant was responsible for the defamatory email. If liability had been established, the Court indicated that it would have awarded $25,000 moral damages and $10,000 punitive damages.
2018 April 19
The Ontario Superior Court of Justice granted a defence Anti-SLAPP motion pursuant to s. 137 of the Courts of Justice Act and dismissed a defamation action over the defendant’s post on a closed Facebook group. That post criticized a decision by a town council to expand dumping rights at a gravel pit operated by the plaintiff company. The Court noted that the post was quickly deleted, the Facebook group was reclassified from a “closed group” to a “secret group”, and that the Facebook Group was entirely shut down and its contents deleted the same day the defendant received Notices of Defamation and warnings about defamation lawsuits to be launched by the plaintiff company. In the particular circumstances of this case, the Court held, inter alia, that the post was not defamatory, that the plaintiff failed to establish there were no defences available, and that the defendant should be awarded $20,000 damages and $126,438.55 for legal costs.
2018 April 19
The Ontario Superior Court dismissed a defamation lawsuit arising from online Google reviews in which the defendant outlined her experience obtaining cosmetic treatment services from the plaintiff company. Applying the Anti-SLAPP provisions in s. 137 of the Courts of Justice Act, the Court held that although the plaintiff company proved that its action had substantial merit, the plaintiff failed to satisfy the Court that there were grounds to believe the defendant had no valid defence in the action. The judge stated: “A person’s observations of his or her own appearance, particularly following treatments that are expected to improve one’s appearance, are inherently personal and highly subjective. On the evidence before me, I am unable to conclude that [the plaintiff] has met its onus of showing that no person in [the defendant’s] circumstances could have honestly held the opinions that she expressed.”
2018 April 19
The Ontario Court of Appeal held that the Ontario Divisional Court did not err in determining that a publication on the defendant website was defamatory [See Divisional Court reasons at 2016 ONSC 1606]. However, the Court of Appeal did set aside the lower court’s order that there be a new trial regarding the defence of fair comment. The Court of Appeal held that there record was sufficient to permit the court to conclude that the test for fair comment was satisfied and that the defamation claims of the plaintiff should therefore be dismissed.
2018 January 19
The British Columbia Supreme Court dismissed a defamation action which related in part to an email message which was published by the defendant to a third party. The Court concluded that the plaintiff had failed to prove the email referred to the plaintiff.
2017 December 13
The British Columbia Court of Appeal varied the trial judgment which dismissed this action over five website articles, by setting aside the award of special costs to the defendants (2016 BCSC 109). The court agreed with Taseko that “it was a legal error to rely on” the test set out in WIC Radio Ltd. v Simpson, 2008 SCC 40 at paras. 67-68 to determine whether the impugned publications were defamatory, but concluded that despite a “misstep” in one paragraph of his trial judgement, the trial judge “was alive to the test he needed to apply, and he applied the correct test when he made his findings.” “At the end of the day, the basic test to apply when discerning whether an ‘inferential’ meaning is defamatory is based on the natural and ordinary meaning that a reasonable person would infer from the entirety of the publication.”
2017 December 6
The Yukon Territory Court of Appeal (In Chambers) dismissed an application by the plaintiff/appellant for an extension of time for filing an appeal from a summary trial decision dismissing her defamation claim on the basis the defendant’s email was published on an occasion of qualified privilege. The Court of Appeal held that there was little merit to the appeal which it was clear was “bound to fail.” The Court concluded that the plaintiff seemed to be “of the mistaken view that by sending the e-mail to eight people, the e-mail is now on the Internet and available to millions of people.” The trial judge’s finding of fact, for which there was no basis for the appellate court to interfere, was that the email went only to an eight-member committee.
2017 November 20
The Ontario Superior Court of Justice dismissed a motion for partial summary judgment brought by the individual defendant who was sued for defamation, breach of confidence and breach of privacy over a letter which was published on the CNSC website, together with other correspondence. The material on the website was also sent by email to about 2,000 email addresses. The CNSC removed the entire federal posting, including the letter, after the Office of the Privacy Commissioner ruled the ongoing publication violated the Personal Information Protection and Electronic Documents Act. The Court rejected submissions that the statutory immunity provided in s. 18(1) of the Nuclear Safety and Control Act and the law relating to the personal liability of employees and officers made it possible for the Court to grant partial summary judgment. Based on the disclosed evidence, the Court was not satisfied that it was in the interests of justice to make a summary determination on the issue of the defendant’s alleged good faith, which the Court considered was tied up with the determination whether there was malice on the part of the individual defendant. The Court noted that liability of an individual employee could depend on whether his or her actions were themselves tortious. In this connection, the Court noted that because defamation is an intentional tort, an individual employee could be held liable. Accordingly, there was a significant issue which should not be determined on a summary judgment basis. “[The defendant] must give evidence at the trial. He will be cross-examined. There may be other witnesses giving evidence with respect to the circumstances surrounding the publication on the website.”
2017 November 15
The Ontario Superior Court of Justice dismissed defamation claims by a mayor and town councillor over seven allegedly defamatory Facebook posts by a local resident pursuant to section 137.1 of the Ontario Courts of Justice Act (Anti-Slapp legislation). “All of the impugned statements were about acts or omissions on the part of the plaintiffs in the discharge of their public duties.” Although the Court found that certain defamatory allegations were not protected by the pleaded defences of fair comment or responsible communication, it concluded that the harm was not sufficiently serious that the public interest in permitting the proceeding to continue outweighed the public interest in protecting the defendant’s expression.
2017 October 18
The Ontario Superior Court of Justice rejected a motion by the defendant seeking an order dismissing a defamation action on the basis of s. 137.1 of the Ontario Courts of Justice Act (Anti-SLAPP provisions). The action concerned a number of tweets published in May, 2016. The Court concluded that the majority were “thinly veiled attacks” on the plaintiff, not comments on matters of public interest, and that there were grounds to believe the defamation claim has substantial merit. There were reasonable grounds to believe that no defence of fair comment was made out. As regards the defence of failure to give libel notice pursuant to section 5(1) of the Ontario Libel and Slander Act, the Court held that there was no case law interpreting this provision to include social media. “…[T]he parties have not provided this Court with any evidence regarding the nature, characteristics and functioning of the Twitter technology, nor have the parties provided any social policy reasons for interpreting or extending the meaning or definition of broadcast to include Twitter…I am therefore of the view that the Act, as presently worded, does not apply to Twitter posts.” In the circumstances, the Court found there were grounds to believe that the defendant had advanced no valid defences. The interest in permitting the proceeding to continue to trial outweighed the public interest in protecting the impugned expression contained in the tweets.
2017 September 28
The British Columbia Supreme Court held that the corporate and three individual defendants were jointly liable for the many defamatory websites, blogs, YouTube videos, emails and other internet publications targeting the individual and corporate plaintiffs. Most of the defamatory publications involved an internet article (“The Uncovered Article”) which the Court characterized as a “hit piece” targeting the plaintiffs and which was “posted on a flotilla of domain names surrounding the corporate plaintiffs’ actual domain names or using [the individual plaintiff’s] name.” The court held that pseudonyms “Jim Arthur” and “Mike Flagger” were used by the defendant Hanna in relation to defamatory publications, to the knowledge of the defendants Jackman, Paine and Valley Traffic Systems Inc. Defences of qualified privilege, fair comment and justification were rejected and the Court held that the defendants “shared the predominant purpose of destroying, diminishing or undermining” the reputation of the plaintiffs pursuant to a common design.
2017 September 8
The Ontario Superior Court of Justice dismissed an application to summarily dismiss this $27 million defamation lawsuit as a SLAPP pursuant to s. 137.1 of the Courts of Justice Act. The plaintiff company, the largest Canadian exporter of tobacco, manufactured it on first nations reserve territory in Ontario and also sold tobacco to “Indians” and “bands” located on “reserves” within the meaning of the Indian Act, RSC 1985, c. I-5. It did not sell tobacco to retailers outside reserves and did not sell to consumers who are required to pay taxes on it. The defendant, a small company operating from the basement of a home, published a three-part article in 2016, in both hard copy and electronic format. Although the impugned publication concerned a matter of public interest, the Court concluded the claim had substantial merit, as the words complained of were clearly defamatory. The court held that the due diligence to verify the serious defamatory allegations was “non-existent,” that alleged defences of qualified privilege and fair comment were inapplicable, and that damages were presumed in circumstances where the publication “was targeted at the plaintiff’s suppliers and the content remains on the Internet.” The Court concluded the plaintiffs had “shown credible and compelling evidence of harm which appears reasonably likely to be proved at trial…”
2017 July 25
The Ontario Superior Court of Justice granted a defendant’s application for summary judgment pursuant to s. 137.1 of the Courts of Justice Act dismissing this defamation lawsuit which complained of text messages and postings on the Internet, in respect of which the defendant had retracted and apologized. The Court held that the words complained of did not convey the defamatory “sting” alleged by the plaintiff. The Court also considered that there were no grounds to believe that the defence of “responsible communication” is not valid. Under the Courts of Justice Act, a defendant only needs one valid defence for a motion to dismiss to succeed. Further, the Court found that in this particular case, there was no evidence of any particular harm to the plaintiff and that in any event, the harm likely to be suffered by the plaintiff “is not so serious that permitting the proceeding to continue outweighs the public interest in protecting that expression.”
2017 June 28
The Ontario Superior Court dismissed defamation complaints by a plaintiff, who was one of two candidates seeking the 2015 Liberal Party of Canada nomination for election to Parliament. The plaintiff candidate alleged he was defamed by the other candidate for the nomination in posts on Facebook, Twitter, Rabble.ca, various message boards and her own blog. Although the Court found the defendant’s posts were defamatory, the plaintiff failed to establish that the defendant had no valid defence. The anti-SLAPP provisions in s. 137.1 of the Courts of Justice Act were applied to justify dismissal of all defamation claims but the alternative claim against the defendant for malicious prosecution was allowed to proceed. Allegations made by the defendant in her application for a peace bond against the plaintiff under the Criminal Code was “an entirely private matter between the two individuals involved” which did not engage the interests protected by the anti-SLAPP legislation.
2017 February 14
The Ontario Superior Court of Justice dismissed a claim for defamation and injurious falsehood although the court concluded the defendant authored an email which defamed the plaintiff. In rejecting the defendant’s position that he was not the author or distributor of an email sent from a Gmail account, the Court considered the circumstantial evidence of authorship. This included the subject matters in the email and the vocabulary used. In addition, the Court noted the defendant had said nothing in his examination in chief about the email, the Court’s conclusions about his credibility and the fact the defamatory email was less than 4 weeks after an earlier Court order. The Court held that it was not persuaded that the distribution was sufficiently widespread to have any impact on the plaintiff’s employment. Although the judge noted that damages for libel are presumed, and at least one witness testified he actually received the email, the Court dismissed the defamation claim without finding the any substantive defences had been established.
2017 January 27
The Ontario Superior Court of Justice dismissed a defence application to dismiss a defamation claim over Facebook posts pursuant to Ontario’s new anti-SLAPP law found in section 137.1(3) of the Courts of Justice Act, RSO 1990, c. C-43. The Court held that the subject matter of the Facebook posts were not a “matter of public interest” although they may have “interested the public.” The posts “did not affect the welfare of the public … or assist the public to better understand and make decisions on issues in which they had a stake.” The Court also noted the Facebook posts, which were generally accessible, were highly personal comments about private individuals, not public figures.
2017 January 26
The Ontario Superior Court of Justice dismissed an application by the defendant, a former hedge fund manager, to dismiss this defamation lawsuit pursuant to s. 137.1 of the Courts of Justice Act. The court held that although the management of publicly traded corporations is a matter of public interest, a serious unsupported allegation against the plaintiff relating to alleged actions a decade earlier, when the plaintiff was a lawyer, lead the court to conclude that the public interest in permitting the plaintiff to proceed outweighed the public interest in protecting the defendant’s expression. The court held that there were reasonable grounds to believe the substantial requirements of the plaintiff’s claim in libel are satisfied, and that there are reasonable grounds to believe there is no valid defence. In this case, the alleged libel was part of a national television broadcast and was available on the internet. After the issuance of the statement of claim, the defendant made further public statements about the plaintiff on Twitter to an audience of approximately 7,000 followers.
2017 January 11
The Ontario Superior Court of Justice dismissed a defamation lawsuit over tweets pursuant to Ontario’s new anti-SLAPP law in section 137.1 of the Courts of Justice Act, RSO 1990, c. C.43. Previous to his tweets, the defendant had entered into a Settlement Agreement retracting previous postings about the plaintiffs and agreeing, going forward, not to make any comments, suggestions, opinions, or statements of any kind whatsoever about the plaintiffs. The defendant argued that his freedom of expression was limited because of the “unreasonable restrictive covenant” in the Settlement Agreement.
2017 January 5
The Ontario Superior Court of Justice struck out a claim for defamation over an email on the ground it disclosed no cause of action. The Court held: “[S]imply replying by email, only to the sender of an allegedly defamatory email, does not constitute publishing or republishing to a third party.”
2016 December 1
The Ontario Superior Court of Justice dismissed a libel action over an email pursuant to Ontario’s new anti-SLAPP law in section 137.1 of the Courts of Justice Act, RSO 1990, c. C.43. The email was sent to by the defendant lawyer to members of the Ontario Trial Lawyers’ association who subscribed to a confidential automated electronic mailing list. The Court ruled that the plaintiff had failed to prove there was “substantial merit” to the claim. With respect to the claim for republication to the insurance industry, the Court stated: “The defendant clearly does not bear unlimited responsibility for every inaccurate or distorted repetition of her written communications disseminated by persons unknown to other persons unknown. Defamation is determined objectively by considering the words used as they would reasonably be understood by their audience, not by a consideration of how the words might be subsequently distorted through ‘broken telephone.’”
The Court also rejected the plaintiff’s submissions that the anti-SLAPP legislation violated section 7 of the Canadian Charter of Rights and Freedoms, which concerns liberty and security of the person.
2016 November 8
The Ontario Superior Court of Justice dismissed a defamation claim relating to a blog posting made during the 2015 Canadian Federal election, relying on the new Ontario anti-SLAPP law in section 137.1 of the Courts of Justice Act, RSO 1990, c. C43, Section 137.1 First, the plaintiff failed to prove the corporate defendant was involved in the impugned publication. Further, the plaintiff failed to satisfy the Court that the proceeding against the individual defendant had “substantial merit.” The two blog postings at issue “would leave an uninformed spectator wondering what they were about.” “A reasonable person would know that the suggestion is made on the internet and that the internet is replete with claims – both true and false, both attributed and anonymous.” The Court found that “a reasonable person would have no basis on which to form any view at all beyond learning that the author has formed a negative view and appears to be looking to contact others with similar negative views to seek greater publicity of the grounds for those views.” “A claim premised on such a weak ‘sting’ does not meet the required standard of possessing ‘substantial merit’. It is to the contrary marginal and dubious.”
2016 August 12
The Ontario Superior Court of Justice granted summary judgment dismissing this libel action on the basis, among other things, that the impugned article published on the “Law Times” website was a fair and accurate report of court proceedings. The Court stated that it is settled law that “where there are judicial proceedings before a properly constituted judicial tribunal exercising its jurisdiction in open court, then the publication without malice of a fair and accurate report of what takes place before that tribunal is privileged.“
2016 March 11
A three judge panel of the Divisional Court of the Ontario Superior Court of Justice allowed an appeal from a trial decision dismissing the plaintiff’s defamation action over a published rating on the defendant’s website. The Divisional Court held that the trial judge erred by making no finding as to the plain and ordinary meaning of the words complained of by the plaintiff, and that this was an error in principle that went to the heart of the judgment. “The impugned words were defamatory of [the plaintiff], and the trial judge erred in law in concluding otherwise.” The judge also confused the defences of fair comment and qualified privilege, thereby “conflating” them, and erred in dismissing the claim on the basis the impugned words are “mere opinion.” With respect to the trial finding that the impugned words were protected by the defence of qualified privilege, the Divisional Court held that the defendant “had no legal duty to rate the ethics and trustworthiness of businesses.” “Many people undertake to evaluate others: restaurant reviewers, arts critics, and, increasingly, firms that aggregate public opinions expressed through internet web sites, may undertake to themselves the task of furnishing opinions about a broad range of topics and communicating those opinions to the general public. Simply undertaking such a task does not vest a critic with qualified privilege which … is a defence to publishing damaging statements about others.“
2016 March 3
The Trial Division of the New Brunswick Court of Queen’s Bench struck out a statement of claim by an ex-journalist over an article published online and in print in two of the defendant Brunswick News Inc.’s newspapers. The article contained a report of a criminal conviction which the Court held was protected by s. 11(1) of The Defamation Act, RSNB 2011, c. 139 which provides that a “fair and accurate report, published in a newspaper or by broadcasting, of proceedings publicly heard before any court shall be absolutely privileged” if certain conditions are met.
2016 February 3
The British Columbia Supreme Court dismissed a defamation action arising from “a relatively innocuous workplace incident“. The lawsuit was based in part on an email which the plaintiff alleged re-published certain defamatory statements made in another email. The Court held that the email did not contain defamatory statements, although it might trigger curiosity on the part of an external reader. The email therefore did not constitute a defamatory re-publication.
2015 September 15
The Ontario Superior Court of Justice dismissed a defamation action brought by a Town Councillor over statements published by the Mayor and six other Town Councillors on the website of the Town of Aurora, in two local newspapers and at a Town Council meeting which was televised. One of the grounds of dismissal was the Court’s determination that the defendants’ publications were protected by the defence of qualified privilege. “In determining whether the publication of the Statement on the Town’s website exceeded the occasion of the privilege, I must consider whether this was an appropriate means of communication, being in mind that [the plaintiff’s] various blog entries that were critical of Town staff were also publications to the world at large.” “In this age of social media and the internet, where virtually everything published on the internet is available to anyone, I am satisfied that where, as in this case, the defendants have published a document, such as the Statement the Court has determined is the subject of qualified privilege, that privilege is not lost if a publication of the document is available on the internet where the publication is in response to something the plaintiff has equally made available on the internet.“
2015 June 16
The British Columbia Supreme Court granted an application by Google, Inc. for summary judgment dismissing defamation claims based on Google’s publication of search results and “snippets” which contained defamatory statements about the plaintiff. The Court stated that Google “is not aware of the snippets and hyperlinks produced, nor can it be, realistically.” “Google does not authorize the appearance of the snippets on the user’s screen ‘in any meaningful sense’ but ‘has merely, by the provision of its search service, played the role of a facilitator.’ ” The Court therefore concluded that Google is a passive instrument and not the publisher of snippets. However, the Court emphasized that the plaintiff had “not asked [the Court] in this case to consider whether Google could be a publisher of snippets and search results after notice of defamatory content.”
Further, in the course of dismissing the plaintiff’s application for an interlocutory injunction requiring Google to block search results for 146 websites worldwide, the Court noted that the plaintiff had not satisfied the requisite legal tests. There was insufficient evidence of irreparable harm to the plaintiff if the injunction was not granted. Google had voluntarily removed URLs identified by the plaintiff from Google.ca search results, thereby preventing searchers in Canada from finding the links to the offending websites. Additionally, the plaintiff had waited two years to apply for the interlocutory injunction, which weighed against any sudden urgency to grant an interlocutory injunction ahead of the injunction to be sought at trial. “Finally, the Court is reluctant to make an order that cannot be complied with. [The plaintiff] acknowledges that Google is not able to comply with an order compelling it to block defamatory search results in the United States. Two federal statutes, the Communications Decency Act of 1996, 47 USC (1996), and the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 USC (2010), protect Internet providers such as Google and block enforcement orders that would infringe on the First Amendment right to free speech.” “While United States courts will generally recognize and enforce foreign judgments, they will not do so if enforcement of the foreign court’s order would violate the corporation’s constitutional rights to free speech: Yahoo! Inc. v La Ligue Contre Le Rascisme et L’Antisemitisme, 169 F Supp 2d 1181 (ND Cal 2001) at 1192-1193, rev’d on other grounds 379 F 3d 1120 (9th Cir 2004).“
2015 May 28
The British Columbia Supreme Court dismissed libel claims brought by the plaintiff non-profit society and its ex-president against a former executive director over a number of publications, including an email the defendant sent in October 2009 to another ex-employee, which was copied to four other people involved with the society. The Court held that although the email was defamatory, it was protected by the defence of fair comment, as there was some public interest relating to the operation of the non-profit society, and a reasonable person could hold the opinion expressed by the defendant. The email was not protected by the defence of responsible communication because the email “was not inviting public attention or comment; rather it was a private email communication between two former employees.” The Court also held that in any event, damages would only be nominal because the defendant had apologized for the email, circulation of the email was minimal, and there was no demonstrable damage to the individual plaintiff.
2015 March 2
The Quebec Court (Civil Chamber) dismissed claims by the plaintiff, the owner of a towing company, against the defendant towing company operator, over postings on the latter’s Facebook page. The Court held the postings were not defamatory and, in any event, were accessible only to friends and family of the defendant, very few of whom reacted to any of the posts. There was no evidence from the plaintiff that any of his own clients had spoken to him about the posts, or that he had lost any business. In fact, the only post which the defendant admitted was inappropriate did not even identify the plaintiff.
2015 February 24
The Quebec Court (Civil Chamber) dismissed, as an abuse of process, a defamation action brought by the plaintiff municipality and its fire chief against a former employee of the municipality over a Facebook post. The impugned post was the last of four comments posted by various people on a third party’s Facebook page. The post did not name the individual plaintiff or the municipality, nor did it convey any defamatory meaning.
2015 February 23
The Ontario Superior Court dismissed a libel action involving political debate in the Internet blogosphere on the basis the defamatory allegation was fair comment on a subject of public interest, published without actual malice. The Court noted that strong commentary was evident in the blog’s posts and comment threads. Opinions would be set out in a post on various issues and those who choose to do so would counter with opinions of their own in the thread. The particular context in this case led the Court to conclude the defamatory statement at issue was comment as opposed to an imputation of fact. “The post “Hey yokels with pitchforks, there is no libertarian base” was found in the [blog’s] subforum entitled “Opinions are Like Clymers” (“Clymer” has been defined to mean asshole), thus clearly indicating to readers that the post would contain opinion. The title of the post was vague and confusing and so would also alert readers that what followed was a commentary and not a factual dissertation. The post itself was rambling, if not incoherent, touching on a number of different topics. It was in essence a rant, with Mr. Smith giving his views and opinions on any number of issues, none too clearly. …The post looked at as a whole was clearly commentary.” The defamatory statement at issue was one which was incapable of proof and in context, was “rhetorical hyperbole.”
The Court rejected submissions by the defendants and intervenor Canadian Civil Liberties Association that the words complained of could not even be considered defamatory because readers expect hyperbole, profanity, personal attacks, invective, sarcasm, insults and bad language. The Judge stated: “I am very mindful that political discourse on weblogs and message boards, particularly those which are hyper-partisan, is qualitatively different than political discourse on more “traditional media” like newspapers and television. …I am also mindful that this Court must consider the context in which the words were used and the audience to whom they were published. However, it seems to me that taking the submissions of the CCLA and the defendants to their logical conclusion, little, if anything, could be found to be defamatory on partisan weblogs and message boards. Implicit in their submission is that based on the rough and tumble nature of these media platforms, there would be little, if anything, that would tend to lower the plaintiff’s reputation in the eyes of a reasonable reader. However, there is nothing in the law of defamation to suggest this is the case.”
The Court also stated: “Prior to hearing the evidence in this case it would have been intuitive to me that people do not believe what they read on the Internet as compared to mainstream media and that people do not lend credibility to those who post anonymously. However, [the expert witness’] evidence indicated otherwise. Credibility for online anonymous political actors can be gained over time. It is to be noted that [the defendant] Mr. Smith has a long history of posting … and would be well known to [the blog’s] regular readers.”
The Court also rejected submissions by the defendant blog operators that holding a message board and its operators liable as publishers for postings by the hundreds of people who post on it daily is an unconstitutional violation of the guarantee of freedom of expression, and that the operators, as providers of an interactive computer service, should not be liable for user-generated content from third parties. The Court noted that the defendant moderators and administrators of the blog had the ability to control the content of the blog. “[T]he law of defamation involves a delicate balance between two fundamental values: the worth and value of an individual’s reputation, which the law of defamation seeks to protect, and the freedom of expression, which the law of defamation inherently limits. The evidence reveals in this case that almost all of the individuals who post or comment on the [blog] do so anonymously. To adopt the position of the defendants would leave potential plaintiffs with little ability to correct reputational damage and would impair that delicate balance. Therefore I find the impugned words to have been published by [the defendants].“
2015 February 5
The British Columbia Supreme Court held that the defendant newspaper was not liable for defamatory postings in the reader comment area on the newspaper’s website where the newspaper removed the reader posts after receiving the plaintiff’s complaint. The Court reviewed English authorities including Godfrey v Demon Internet Ltd.,  EWHC 244 (QB), Bunt v Tilley,  EWHC 407 (QB), Metropolitan International Schools Ltd. v Designtecnica Corp.,  EWHC 1765 (QB), and Tamiz v Google Inc.  EWCA Civ 68, and held that “some awareness of the nature of the reader posts is necessary to meet the test of publication.” “Until awareness occurs, whether by internal review or specific complaints that are brought to the attention of the National Post or its columnists, the National Post can be considered to be in a passive instrumental role in the dissemination of the reader postings. It has taken no deliberate action amounting to approval or adoption of the contents of the reader posts. Once the offensive comments were brought to the attention of the defendants, however, if immediate action is not taken to deal with these comments, the defendants would be considered publishers as at that date.” The Court did make a damage award in respect of the articles published by the newspaper defendants.
2014 June 13
The British Columbia Supreme Court granted summary judgment dismissing an action for defamation by the Society and three individual plaintiffs arising from a series of complaints made by members of the plaintiff society concerning the conduct of other members on the basis the email communications at issue were sent on an occasion of qualified privilege. The complainant sent her complaint by email to the defendant J, who the judge described as “a long-serving member of the Board and a senior female member of the Society.” J in turn sent the allegations by email to the very entity in the Society charged with dealing with such complaints, and forwarded her comments of solidarity, and concern, to the Council as well as to the complainant herself. In addition, the Court held that the Society was not a proper plaintiff because the words complained of in the three publications at issue did not refer to the Society.
2014 March 13
The Ontario Superior Court of Justice dismissed, for lack of evidence, a libel claim by a purchaser who claimed a vendor had defamed his business in emails and by other statements. The Court held that the plaintiff “has produced no credible evidence to establish that [the defendant] sent any derogatory emails or made any defamatory statements…“
2013 December 4
The Quebec Superior Court dismissed this action which sought damages and the removal of the defendant’s Internet blog on the basis the postings at issue did not defame the plaintiffs. The Court held that the many postings at issue fell within the limits of lawful freedom of expression, noting that the plaintiffs played an active public role in promoting certain local interests and by participating in the work of municipal organisms. The Court suggested that those who want to enjoy anonymity wisely stay at home and are less likely to be subjected to public criticism than those who participate in news media interviews as representatives of identifiable groups. The opinions expressed on the blog were reasonably justifiable in light of the proven facts.
2013 August 26
The British Columbia Supreme Court granted a summary trial application by the defendants and dismissed this libel lawsuit over the publication of a report on the defendants’ website, which concerned “crisis pregnancy centres.” The Court held, among other things, that the allegations at issue in the report were not “of and concerning the plaintiffs” and they were therefore not defamed.
2013 July 22
The British Columbia Court Appeal, reversing the trial judge, unanimously held that the defendant was not protected by the defence of fair comment for defamatory allegations contained in a January 2011 press release sent to the news media and in publications on the defendant’s website (including a version of the January 2011 press release).
Writing the judgment of the Court of Appeal, Tysoe J.A. noted that the Supreme Court of Canada set out the test for fair comment in Grant v Torstar Corp, 2009 SCC 61:
As reformulated in WIC Radio, [WIC Radio Ltd. v Simpson, 2008 SCC 40,  2 S.C.R. 420] at para. 28, a defendant claiming fair comment must satisfy the following test: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.
Tysoe JA held that the trial judge in this case erred “in finding that the second element (i.e. the comment must be based on known facts) was satisfied.” Accordingly, the Court of Appeal allowed the appeal, and held it was “unnecessary to consider whether the trial judge erred in concluding that the fourth element of the test was satisfied and the defence was not defeated by malice.” He noted that in order for the fair comment defence to apply, “it is necessary for the comment to have a factual foundation or factual substratum” so the audience is in a position to assess or evaluate the comment.
Tysoe JA expressly approved the following passage from the majority decision of the High Court of Australia in Channel Seven Adelaide Pty Ltd. v Manock,  HCA 60 concerning the required linkage between the comment and the supporting facts:
 … a sufficient linkage between the comment alleged and the factual material relied on can appear in three ways: the factual material can be expressly stated in the same publication as that in which the comment appears (ie by “setting it out”); the factual material commented on, while not set out in the material, can be referred to (ie by being identified “by a clear reference”); and the factual material can be “notorious.” …
Tysoe JA considered that this statement is “consistent with the expression at para. 34 of WIC Radio that the factual foundation for the comment must be properly disclosed, sufficiently indicated or notorious.
Applying that test to this case, the Court of Appeal found that certain facts were notorious, others were contained in the defamatory publications, but certain key facts were neither notorious nor contained in the publications and therefore needed to be “identified by a clear reference” or “sufficiently indicated.” In this context, the trial judge erred:
- By failing to distinguish between non-notorious facts stated in the defamatory publications and non-notorious facts stated elsewhere.
- By failing to consider whether the non-notorious facts stated elsewhere were identified by a clear reference.
- By suggesting it was sufficient for the facts upon which the defamatory comments were based to be known by determined readers who conducted research on the defendant’s website and beyond.
Tysoe JA noted that the plaintiff Mainstream did not allege in its notice of civil claim that all of the pages on the defendant’s website were defamatory:
 In my view, all of the pages on a website, together with all articles hyperlinked on the website, do not constitute a single publication…It is not sufficient for the defence of fair comment for facts upon which the comments were made to be contained on webpages that were not alleged to contain defamatory comments or in hyperlinked documents unless those other pages or hyperlinked documents were identified by a clear reference to contain such facts.
 Whether the hyperlinks in a defamatory publication on a website to other documents containing facts upon which the defamatory comment was made is sufficient will depend on the circumstances of each case. If the defamatory publication advises the reader that a hyperlinked document contains facts upon which the defamatory comment is based and sets out where in the document they are contained, then there may well be a sufficient reference to those facts. In this case, however, the readers of the defamatory publications were not advised which of the multitudinous hyperlinked documents in the publications or elsewhere on the [defendant’s] website contained facts upon which Mr. Staniford’s comments were based.
In the result, instead of remitting the matter to the BC Supreme Court for a new trial, the Court of Appeal awarded the plaintiff corporation $25,000 general damages, $50,000 punitive damages, special costs and an injunction.
2013 July 15
The Quebec Court of Appeal granted motions filed by Bell Canada, Microsoft and the CBC to dismiss M’s appeal from a trial judgment which refused to permit M to institute defamation proceedings seeking $12 million damages over articles on the Internet entitled “Federal Court bans man for frivolous lawsuits.” The trial judge had concluded that the Internet articles summarized precisely and correctly the reasons for judgment rendered by a judge of the Federal Court of Appeal.
In this decision, the Quebec Court of Appeal ruled that the appeal by M “has no reasonable chance of success and should be dismissed pursuant to article 501, paragraph 1(4.1) C.C.P.”
2013 July 15
The British Columbia Supreme Court held that the plaintiffs were defamed by three emails and by two articles which appeared in the TIAC Times (a magazine published in print and online) and the Journal of Commerce. One of the three emails held to be defamatory was sent to the Journal of Commerce; the other two were sent to engineers at major mechanical consulting firms.
Nevertheless, the Court dismissed the plaintiff’s claims on the basis the publications all occurred on occasions of qualified privilege. The Court noted that for an occasion to be privileged, the person making the communication must have an interest or a duty, legal, social or moral, to make it to the person(s) to whom it is made, and the person to whom it is made must have a corresponding interest or duty to receive it. “That element of reciprocity is essential.”
In this case, the Court held that engineers and consultants as well as contractors, distributors, builders, designers and engineers likely to receive the Journal of Commerce and the TIAC Times would “share [the defendant’s] professional interest.”
The Court held that the “segment of the population that would be likely to receive [the TIAC Times article) or find it on the website would be quite limited” and that it therefore “could not be considered ‘publication to the world.’” With respect to the Journal of Commerce, the Court expected that publication to have a wider circulation but stated “no evidence was adduced from which I could find that it was so wide as to exceed the limits of qualified privilege…”
The privilege was not defeated by express malice, applying the test for malice prescribed in Smith v Cross, 2009 BCCA 529, which states in part at paragraph 34:
- In Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004) at 299, R. D. McConchie and D.A. Potts reduce this statement to a helpful framework for the categories under which a finding of malice can be made. A defendant is actuated by malice if he or she publishes the comment:Knowing it was false; or
- With reckless indifference whether it is true or false; or
- For the predominant purpose of injuring the plaintiff because of spite or animosity; or
- For some other dominant purpose which is improper or indirect, or also, if the occasion is privileged, for a dominant purpose not related to the occasion.
More than one finding can be present in a given case.
Although the Court dismissed the action, it stated: “…it would seem to me proper that any continuing publication of the TIAC Times article on that journal’s website or elsewhere should be terminated immediately.” “This is not a direction; but I observe that failure to do so in view of my findings would suggest bad faith.”
2013 June 20
The Ontario Superior Court of Justice granted summary judgment to the defendants Shaw Direct and Bell Express Vu, dismissing defamation claims against them relating to the publication by the Reed King defendants of an internal newsletter which was printed and circulated to employees of King-Reed in April 2011 and which, sometime thereafter, was posted on a website on the Internet for 16 days by one of the King-Reed limited partners. The Court held that there was “no evidence indicating that either ExpressVu or Shaw had anything to do with the writing or publication of the King-Reed’s employee newsletter or the allegedly defamatory article” which had been posted briefly on the internet.
2013 June 14
The Quebec Superior Court dismissed a claim by the corporate plaintiff for damages relating to an allegedly defamatory email sent by the defendant, an ex-employee, to her husband and the plaintiff’s lawyer. The Court sustained an objection to the admissibility of the email to her ex-husband (on the grounds of invasion of privacy) and held there was no proof of damage arising from its communication to the lawyer, because the defendant and the lawyer were two people who worked closely together and spoke to one another about their working conditions. By the time of the trial, the lawyer had also left employment with the plaintiff. The email had been discovered on the defendant’s Blackberry, after she returned it to the ex-employer on departing the company.
2013 April 18
The Saskatchewan Court of Queen’s Bench dismissed all claims and counterclaims for defamation which arose from the involvement of all parties in a national trade union which represented inside workers employed by the City of Saskatoon. The counterclaims related, in part, to: (i) an email sent on August 11, 2000 to members of the union local; (ii) an email sent on August 23, 2000 to union members and to nine other people unknown to the sender whose names appear on the national union’s website; and (iii) an email sent on October 11, 2000 to union members including grievance committee members. The Court concluded that none of the emails were defamatory, in some instances because the statements fell within the “rough and tumble” of union politics and business; in other instances because the readers would have considered the source of the remarks – the email’s author – to be “confrontational, aggressive, angry and of uncertain reliability in terms of relating circumstances.” “Because of the confrontational, antagonistic and agitated nature of the email, the reasonable reader would have concluded that any comments in it could not be taken at face value.” In the alternative, the Court found that each of the emails was published on an occasion of qualified privilege.
2013 February 6
The British Columbia Court of Appeal rejected an appeal by the plaintiff, a non-practising lawyer, from a summary trial judgment dismissing his libel action concerning an online posting. The plaintiff had failed to prove publication of the allegedly defamatory posting. The defendants had denied: (i) any involvement in making or posting the allegedly defamatory statement; (ii) that they had authorized anyone to make it; (iii) that they knew in fact who made it; and (iv) that they had seen the posting on the Internet or knew of anyone who had. At the summary trial on affidavits, the plaintiff failed to tender any evidence that the defendants had posted or asked to anyone to post the statement. The Court of Appeal held that the lower court’s decision that the matter was appropriate for disposition by summary trial was entitled to appellate deference. In this case, the plaintiff’s failure to prove publication, a threshold issue, was fatal to his claim.
2012 December 21
The Ontario Divisional Court allowed an appeal by the defendant from a trial judge’s finding that the defendant had been guilty of actual malice which vitiated a defence of qualified privilege. The action concerned an exchange of emails between the plaintiff and the defendant, who were both members of Hamilton City Council. The email exchange had been copied to all other City Councillors and to the Mayor of Hamilton.
The Divisional Court held that although it was open to a trial judge to find intrinsic evidence of malice in the defamatory emails themselves, the “wording must be so violent, outrageous and disproportionate to the facts that it furnishes strong evidence of malice.” The Divisional Court warned that “[i]solated expressions should not be examined hypercritically. A court should not too readily draw an inference of malice from mere exaggeration or extravagance in the use of language. Any warmth or force of expression may properly be attributed by the jury to an honest endeavour on the part of the defendant to honestly achieve his or her purpose. The language must be extreme before an inference of malice will be drawn.” [Quoting Brown on Defamation, at p.16-115 to 116]
The Divisional Court held that the plaintiff’s honest belief in the truth of what he published on an occasion of qualified privilege is a “strong presumption” [citing Brown on Defamation, at pages 16-134.] To prove actual malice, it is not sufficient to prove that the defendant was moved by spite to say the things he said. The plaintiff must show that the defendant’s dominant motive was improper. In the circumstances, the Divisional Court sent the action back to the trial court for a new trial before a different judge.
2012 December 12
The Ontario Superior Court of Justice dismissed an action against the Better Business Bureau over allegedly libelous ratings on its website. The Court noted that although the BBB opinions are published on the Internet, they must be searched individually by consumers wishing to obtain information about a specific company such as the plaintiff. In all the circumstances, the ratings were published on an occasion of qualified privilege. The Court held that it was clearly in the public’s interest that ratings opinions from the BBB should be available. Pursuant to its objects, the BBB is under a duty to accumulate and supply such information. The Court also concluded the BBB ratings were protected by the defence of fair comment. The Court held that there was no evidence of actual malice which would have negated the qualified privilege and fair comment defences.
2012 June 28
The British Columbia Supreme Court dismissed a defamation claim over an email sent by the defendant to several groups and individuals, holding that the defence of justification (truth) applied.
2012 June 21
The Quebec Superior Court dismissed a libel action arising from a posting by a Bloc Quebecois candidate on his website during the 2008 federal election campaign. The plaintiff, an incumbent Conservative Member of Parliament, was defeated in the election. The Court held that the defendant’s criticism of the plaintiff did not prejudice his integrity or honesty and was protected by a defence of “commentaire loyal.”
2012 June 14
The Ontario Court of Appeal unanimously allowed an appeal by the plaintiff blogger, a retired civil servant, from a summary dismissal of his libel action over a posting on a right-wing website. The Court of Appeal held that the issues in the lawsuit should be determined in the normal way at a trial and did not lend themselves to a determination on a motion for summary judgments on affidavits, particularly because “they arise in the relatively novel milieu of internet defamation in the political blogosphere.” The Court of Appeal noted that summary judgment has “rarely been granted in defamation cases, probably because the courts have recognized that the threshold over which a statement must pass in order to be capable of being defamatory of a plaintiff is relatively low … and because the question whether a statement is in fact defamatory has long be considered the purview of a trier of fact. Whether impugned words are defamatory of an individual in fact is the type of decision better made on the basis of a full factual record with cross-examination and possibly expert testimony.” The Court of Appeal also held that the following issues, not previously addressed in the case-law in any significant way, should be decided following a full trial:
- Are caustic and strident exchanges on a blog during “a robust and free-wheeling exchange of political views” subject to the standard test for determining whether a statement is defamatory?
- Does “anything go” in exchanges on such a blog?
- Do different considerations apply to other forms of publication on the Internet, such as Facebook or Twitter?
Novel questions of law or mixed law and fact should generally be determined at trial instead of a summary judgment application at an interlocutory stage of proceedings.
The Court also noted: “No expert evidence was tendered (at the summary judgment hearing) concerning the expectations and understanding of participants in blogosphere political discourse. There was simply no evidence as to what the right-thinking person in this context would consider would lower the appellant’s reputation in the estimation of a reasonable reader.”
2012 May 14
Following a summary trial (on affidavits and transcript evidence from pre-trial examinations for discovery), the British Columbia Supreme Court dismissed a defamation action over an anonymous posting in October 2010 on the Discover Vancouver website. The Court held that the plaintiff “did not submit any evidence that anyone had read the allegedly defamatory statement and in general did not address submissions with respect to the issue of publication.” The onus was on the plaintiff to prove publication to a third party, which the Court held he failed to do on the evidence. The Court also held, in the alternative, that the defendants had established a defence of fair comment and rejected the plaintiff’s submission the defendants had been guilty of actual malice which would have voided that defence.
2012 February 8
The Ontario Court of Appeal sustained a lower court ruling striking out a defamation to the extent that the claim was based on allegedly defamatory statements published or broadcast by the news media in Ontario on the ground the plaintiffs/appellants failed to give the libel notice before action required by s. 5(1) of the Libel and Slander Act of Ontario. The Court rejected submissions by the plaintiffs/appellants that their claim relating to the media website was for slander for transmitting the words orally to the media rather than for publication of the words by the media. The amended statement of claim did not plead a claim for slander but rather a claim for libel, because it sought damages flowing from the publications on the media websites. (The Court also held that the requirement of notice before action applies to non-media defendants.)
On the other hand, the Court of Appeal reversed the lower court and held that the plaintiffs/appellants were entitled to pursue their defamation claim over a press release by the defendant Competition Bureau which it posted on its own website. The Court of Appeal held that it was not “plain and obvious” that the words complained of were not capable of bearing a defamatory meaning and the claim therefore should not have been struck out on a pre-trial application under Ontario rule 21.01.
2011 August 30
The Ontario Superior Court dismissed a defamation action involving political bloggers who debated the validity of the trial of Omar Khadr, a Canadian being held by American forces at Guantanamo Bay, in a series of strongly-worded postings and counter-postings over a four day period in August, 2010. Granting summary judgment to the defendants (right-wing bloggers), the Court held the words complained of by the plaintiff (a left-wing blogger) were not capable of damaging the reputation of the plaintiff.
The Court stated that its conclusion the words were non-defamatory was supported by the “contextual factor” that they were published “in the context of an ongoing blogging thread over the Internet.” “Internet blogging is a form of public conversation. By the back and forth character it provides an opportunity for each party to respond to disparaging comments before the same audience in an immediate or relatively contemporaneous time frame. …This distinguishes the context of blogging from other forms of publication or defamatory statements.” Equating blogging to a live debate, the Court suggested that “in construing alleged defamatory words in an ongoing debate, [the Court] should determine whether the context of the comment from the perspective of a the reasonable reader or listener is one that anticipates a rejoinder, which would eliminate the possible consequence of a statement lowering the reputation of the plaintiff in their eyes.” “A statement is not derogatory when made in a context that provides an opportunity to challenge the comment and the rules of the debate anticipate a rejoinder, unless the statement is wholly outside the scope of the debate or otherwise so outrageous as to prevent meaningful argument from continuing.”
The Court held that “walking off the blogging stage … is a form of ‘gotcha’ contrary to the rules governing the debate” and that “bringing an action on the allegedly defamatory comment in md-debate runs contrary to the rules and has the effect of chilling discussion.” The Court found that the plaintiff, having used the blog “to aggressively berate” and publish “colourful derogatory characterizations” of the defendants, was not defamed having regard to the other derogatory remarks made about him and by him throughout the blogs.
In the alternative, the Court concluded that the words complained of were protected by the defence of fair comment and that the plaintiff had failed to prove that the defence was vitiated by express malice on the part of the defendants.
2011 July 28
The Ontario Superior Court of Justice struck out libel claims relating, inter alia, to certain postings by the federal Competition Bureau in a press release on its website. The Court held that the internet postings “make plain that the plaintiffs merely stood accused of bid-rigging and had not yet been convicted of any offence.” The Court also held that the postings “fairly describe the alleged offence, including the end objectives of individuals who engage in bid-rigging.” Accordingly, the postings were not capable of being defamatory. “It is now well-accepted that a statement indicating that a person has been charged with an offence is not defamatory because reasonable persons are mindful that an accused is presumed innocent until proven guilty.” The plaintiff argued unsuccessfully that the postings were capable of conveying more serious imputations which were defamatory.
2011 May 12
The Quebec Superior Court dismissed a defamation lawsuit brought by a specialist in web marketing including social media who had undergone a male-to-female sex change operation. The plaintiff and a columnist for the Montreal newspaper La Presse exchanged barbs on their respective Internet websites concerning the merits of blogging. Commenting about that online exchange, the defendant Bang Bang, an internet magazine, published an article illustrated by The Sacrifice of Isaac, the well-known painting attributed to Caravaggio which depicts Abraham on the point of sacrificing his son Isaac to God. However, the painting was digitally altered by superimposing the plaintiff’s face on Abraham (but retaining Abraham’s beard) and by superimposing the face of the La Presse columnist on Isaac. The plaintiff alleged that because her image in the altered painting was bearded (recall she had transgendered from a male), the publication exposed her to humiliation and ridicule and caused her to suffer significant emotional distress. Rejecting the defamation claim, the Court ruled that the defendant’s website article including the altered painting represented a legitimate exercise of freedom of expression about the public online debate between the plaintiff and the newspaper columnist. The Court concluded that in this context, the reasonable reader would not have interpreted the article and altered painting as an attack on the plaintiff’s trans-gendered status, but rather as an ironic commentary about the differences between the plaintiff and the columnist about the virtues of blogging.
2011 February 3
The Ontario Court of Appeal unanimously sustained a trial court dismissal of a defamation action on the basis that the defamatory and inaccurate email was sent by the defendant on an occasion of qualified privilege. The plaintiff failed to prove actual malice on the part of the defendant which would have vitiated the qualified privilege defence. The Court of Appeal held that the ICAO officials involved with the email were “acting in the public interest, in the context of a confidential regulatory process. It is important in such circumstances that the officials involved be free to speak candidly…The information communicated was reasonably within the scope of the regulatory process in the circumstances at the point when the information was given.”
2011 January 14
The Ontario Superior Court of Justice granted the defendant’s application for summary judgment dismissing this action, which included claims arising from an allegedly defamatory posting on the College’s website/public register. The Court held that the College had immunity based on section 38 of the Registered Health Professions Act, which provided that no action or proceeding could be instituted for any act done in good faith in the performance or intended performance of a duty. The Court found that the plaintiff had failed to plead necessary particulars of “bad faith” on the part of the defendant College and in the alternative, there were no facts in evidence to support a finding that the College had acted in “bad faith.”
2010 December 7
Crookes v Newton,  SCCA No. 448
On December 7, the Supreme Court of Canada heard the plaintiff’s appeal from lower court decisions dismissing his action for defamation over hyperlinks on the defendant’s website. See the BC Court of Appeal decision appealed from: 2009 BCCA 392. The Supreme Court of Canada has reserved judgment.
2010 July 14
The Saskatchewan Court of Queen’s Bench accepted a defence of qualified privilege and dismissed a libel action brought against the defendants over: (i) a posting on a union website, (ii) notices posted on bulletin boards in the plaintiff’s workplace, and (iii) a mass mailing to union employees. The allegedly defamatory notice had been posted in a section on the website intended for communication with union members and was intended to encourage potential witnesses to a union grievance to come forward.
2010 July 8
The Federal Court dismissed an defamation action on the basis that the RCMP was not responsible for defamatory statements allegedly posted on a website entitled RCMP Vets Net (Vets Net). The defence called the owner of the website, a private individual, who testified that he owned the relevant domain name and was the sole owner of Vets Net which he had created as a place where retired RCMP members could stay in touch. The witness also testified that the RCMP neither funded nor controlled the website in any way. The Acting Manager of New Media for the RCMP also testified that the RCMP did not control Vets Net directly or indirectly and did not even provide a hyperlink to it on the RCMP website. Further, a disclaimer webpage warned visitors to the RCMP website when they were leaving the website that the RCMP is not responsible for the contents of any external website to which it provides hyperlinks. In any event, the plaintiff failed to prove that the words he complained about were in fact published on the Vets Net website.
2010 July 5
The British Columbia Supreme Court dismissed the defendant’s counterclaim for defamation which was based on comments attributed to a spokesperson for the plaintiff in articles published by The National Post and The Province (Vancouver) newspapers in their on-line and print editions. The newspapers were not sued by the defendant. The Court found that in speaking to the newspaper reporter, the plaintiff’s spokesperson had told the reporter she would not comment on the particular case of the defendant, but could speak only about the general practices of the plaintiff Teacher’s Federation. The Court stated: “[the spokesperson] can only be liable in defamation, it need hardly be said, for statements she actually made, considered in context. The fact that someone purporting to publish her statements misreported her, or omitted part of what she said and thereby altered the meaning of her words, cannot be brought home to her. The publisher could potentially be liable in defamation, but the person whose words were altered could not.”
2010 June 9
The British Columbia Supreme Court dismissed a libel action based in part on a conference call interview that was posted on the Internet and in part on a press release posted on the Green Party’s concerning the termination of the plaintiff’s candidacy in the federal election in the fall of 2008. The Court held, inter alia, that the occasion of publication was one of qualified privilege. A federal election was imminent and the defendant Green Party had announced the candidacy of the plaintiff with a press release. “The decision to remove the endorsement of the party leader from the candidate was … a matter about which the public at large had an interest.” The defence of qualified privilege was not vitiated by malice. Although the plaintiff was cut off from access to the member’s area of the Green Party website once he was not longer a candidate, that was appropriate to protect the membership list and voter’s list. Further, being cut off from internet forums on the party’s website did not support an inference of malice. The Court also held that the communications were protected by the defence responsible communication on matters of public interest.
2010 April 22
The Supreme Court of Canada rejected the defendant’s application for leave to appeal theOctober 29, 2009 decision of the BC Court of Appeal which upheld a BC Supreme Court ruling awarding defamation damages to two RCMP officers. See also Reaburn v Langen, 2009 BCCA 465
2009 December 22
The Supreme Court of Canada, in companion decisions released the same day, created a new common law defence of “responsible communication on matters of public interest” and directed that these defamation claims brought against conventional newspaper defendants be re-tried. This new common law defence of responsible communication, which is to be assessed with reference to the broad thrust of the publication in question, will apply where:
- The publication is on a matter of public interest (a question for the judge, being a mixed question of fact and law)
- The publisher was diligent in trying to verify the allegation (question of fact for the jury), having regard to:
- The seriousness of the allegation;
- The public importance of the matter;
- The urgency of the matter;
- The status and reliability of the source;
- Whether the plaintiff’s side of the story was sought and accurately reported;
- Whether the inclusion of the defamatory statement was justifiable;
- Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”);
- Any other relevant circumstances.
The onus of proof rests on the defendant to establish this defence. A defendant who has acted with malice in publishing defamatory allegations has by definition not acted responsibly. An individual’s reasonable expectation of privacy must be respected in this determination.
The Supreme Court of Canada made it clear that this new defence is not limited to the traditional news media but has potential application to the new media, including bloggers and others publishing on the Internet. Consider the following extracts from the majority judgment of Chief Justice McLachlin in Grant v Torstar:
- The protection offered by a new defence based on conduct is meaningful for both the publisher and those whose reputations are at stake. If the publisher fails to take appropriate steps having regard to all the circumstances, it will be liable. The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause.
- A second preliminary question is what the new defence should be called. In arguments before us, the defence was referred to as the responsible journalism test. This has the value of capturing the essence of the defence in succinct style. However, the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree with Lord Hoffmann that the new defence is “available to anyone who publishes material of public interest in any medium”: Jameel, at para. 54.
- A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. For this reason, it is more accurate to refer to the new defence as responsible communication on matters of public interest.
2009 September 15
Crooks v Wikimedia Foundation Inc., 2009 BCCA 392, , leave to appeal to Supreme Court of Canada granted April 1, 2010 (appeal has not yet been heard)
The British Columbia Court of Appeal sustained a lower court decision which dismissed this defamation lawsuit on the basis that the plaintiff had failed to prove publication of the allegedly defamatory words.
Discussing the “publication element” of the tort of defamation, the Court of Appeal stated that there are two aspects. “The first, relating to the defendant as publisher, concerns the act of promulgating the impugned item. The second, relating to the third party receiver of the impugned item, concerns the receipt of that item by a person within the court’s jurisdiction. (I refer to the issue of jurisdiction because publication, to be actionable, must be within this jurisdiction, and publication of internet material occurs where the words are read: King v. Lewis,  E.M.L.R. 45, C.A.; Gutnick v. Dow Jones,  H.C.A. 56.)”
As to the first aspect, the Court of Appeal held that the mere fact that the defendant hyperlinked the allegedly defamatory website did not constitute promulgating the defamatory words on that website. “Whether the hyperlink is a web address, as is often the case, or a more specific reference, both require a decision on the part of the reader to access another website, and both require the reader to take a distinct action, in the one case typing in a web address and in the other case clicking on the hyperlink. In other words, there is a barrier between the accessed article and the hyperlinked site that must be bridged, not by the publisher, but by the reader. The essence of following a hyperlink is to leave the website one was at to enter a different and independent website.”
However, in an important caveat, the Court of Appeal agreed that “the circumstances of a case may add more so as to demonstrate that a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents…So a statement to the effect “N is described at [hyper link]” may itself incorporate a libel so as to be defamatory.”
In this case, however, the Court of Appeal concluded that there was “no encouragement or invitation” by the defendant and that the statements on his website fell “far short of a statement of approbation, or adoption, and appear to me to be most comparable to a footnote for a reader, or a card index in a library. It is not, as was suggested is sometimes the way in the recent case Metropolitan Schools v. Google Inc.,  E.W.H.C. 1765 (Q.B.), a snippet from the article or a snippet produced by a search engine.”
On the second aspect, the Court held there was an insufficient basis on which to infer that a person in British Columbia accessed the impugned articles which were hyperlinked to the defendant’s website.
2008 October 27
Following a summary trial, the British Columbia Supreme Court dismissed this libel action in which the plaintiffs alleged they had been defamed in four articles on the internet published on two websites. The defendant N wrote an article commenting on the implications of defamation actions for those who operate internet forums. In that article, the defendant N inserted hypertext links to the two websites containing the allegedly defamatory articles. The plaintiffs did not allege that the defendant N wrote or published any defamatory words; they alleged that N’s conduct in posting hypertext links to websites containing defamatory material constituted publication of the defamatory words in the latter websites.
The Court held that “[w]ithout proof that persons other than the plaintiff visited the defendant’s website, clicked on the hyperlinks, and read the articles complained of, there cannot be a finding of publication. As in Crookes v Holloway, the plaintiffs have not adduced any evidence to support this claim.” The Court continued: “…the mere creation of a hyperlink in a website does not lead to a presumption that persons read the contents of the website and used the hyperlink to access the defamatory words.” Further, the Court held, “[a]lthough a hyperlink provides immediate access to material published on another website, this does not amount to republication of the content on the originating site. This is especially so as a reader may or may not follow the hyperlinks provided.” “Readers of a newsletter, whether in paper form or online, who read of a reference to a third party website, may go to that website. I conclude that does not make the publisher of the web address a publisher of what readers find when they get there.”
The Court made it clear, however, that this decision did not mean that hyperlinking can never make a person responsible for the contents of the remote site. “For example, if [the defendant N] had written “the truth about [the plaintiff] is found here” and “here” is hyperlinked to the specific defamatory words, this might lead to a different conclusion.”
2008 October 17
The Quebec Court of Appeal refused to hear an interlocutory appeal from a pre-trial judgment of the Quebec Superior Court which had rejected a defence application to dismiss a lawsuit brought by the Municipality of Rawdon for defamation over a website operated by the defendant.
The defendants unsuccessfully argued in Superior Court that a government body should not be permitted to bring an action in defamation against a member of the public in view of the constitutional guarantee of freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms. The Court of Appeal agreed that the defence application “raised a serious legal question, of general interest, elegantly framed, and which in the end might be decided in their favour.” On the other hand, the appeal court was “not convinced that the use and the abuse of recent technology, and in particular of the Internet, by anonymous pamphleteers, may not call for a contextual reconsideration of the limits of free speech that is defamatory. Addressing a small crowd in the flesh and from the north-east corner of Hyde Park is one thing, connecting from a suburban basement, and by means of the Internet, with a vast and anonymous multitude in the cyberspace may be quite another thing. It may be that, technologically, the medium, so enhances the message as to radically alter its impact and oblige its originator to exercise a degree of caution not expected of orators around Speaker’s Corner.”
In all the circumstances, the Court of Appeal held that this important issue should be considered at a trial where an adequate evidentiary record would be before the lower court.
2008 June 6
The Ontario Superior Court of Justice dismissed defamation claims brought by the plaintiff after his employment had been terminated by the defendant. The plaintiff claimed he had been defamed in the letter of termination which had been delivered only to him, in an oral statement to the Virginia Exchange Commission and in an email sent to defence counsel in order to respond to allegations made by plaintiff’s counsel. The Court held that allegedly defamatory email to defence counsel did not involve an actionable publication to third parties because it constituted “internal comments made solely for the purposes of advising counsel as to the facts and circumstances of the matter and sent only to counsel” acting on behalf of the defendant.
2008 April 3
The Ontario Court of Appeal dismissed an appeal from the lower court decision pronounced September 4, 2007 striking out a paragraph in the plaintiff’s statement of claim which alleged that a statement on the defendant company’s website was defamatory. The Court of Appeal held that even if the website statement could be taken to be a statement “of and concerning” the plaintiff Amjay (which the Court of Appeal doubted), neither the website statement or a faxed statement or an oral statement – taken in context and individually or together, were capable of bearing the defamatory meanings alleged in the statement of claim.
2008 March 26
The British Columbia Supreme Court dismissed an action brought by the plaintiff, a former Executive Director of the defendant Terrace Tourism Society (“TTS”), over allegedly defamatory statements contained in a confidential email sent by the defendant P to former members of the Board of Directors of the TTS. The email set out the concerns of the defendant P, who was charged with responsibility for winding up the affairs of TTS and providing a financial report, regarding certain financial matters and sought information from the email recipients. The defendant P subsequently sent a follow-up email advising that his earlier concerns had been completely resolved to his satisfaction and that matters were in fact in good order thereby retracting any defamatory imputations. The Court held that the contents of the email defamed the plaintiff, but that the email was not an actionable libel because it was published without malice by P on an occasion of qualified privilege. The email recipients, in their capacity as former directors and members of TTS, had a reciprocal interest in the issues raised in the email.
2008 March 11
The British Columbia Supreme Court dismissed a defamation action brought by the creator of a website called B.C. Fathers against the authors of a research paper published by a federal government agency which used an image taken from the plaintiff’s website as an example of internet “hate messages”. The alleged defamation was contained in a lengthy report which was the result of a research project funded by the Status of Women Canada. The report contained only two direct references to the plaintiff or his website. The Court concluded that the passages at issue were matters of comment, as opposed to statements of fact, and that they were protected by the defence of fair comment. “In this case, the defendants reproduced an image that the plaintiff admits was on his website. The defendants made statements about that image and what they considered to be its symbolic meaning and underlying message. For the purpose of the defence of fair comment, the “facts” on which the comment is based consist of the image itself and the fact that it appeared on the plaintiff’s website. Some readers looking at the image may agree with what the defendants say about it. Others may fail to see who the defendants drew those conclusions, while still others may think the defendants have misinterpreted and over-reacted to an attempt at humour or satire. The point is that the image is there for readers to consider in light of what the defendants may say about it. In my view, this makes it a classic example of a comment based on true, clearly stated facts.” The Court found that the subject was of public interest, reasoning that by creating a website and posting material on it, the plaintiff obviously decided the material was of public interest and related to social or political issues. “Any response to or comment upon it must be of equal public interest.”
2007 December 20
The British Columbia Supreme Court dismissed a defamation action following a summary trial concerning newsletters published on the Internet from April until November 2006 which the plaintiff complained alleged that he was a “troublemaker”. Although the Court that meaning was defamatory, and rejected a pleaded defence of truth (“justification”), it held that the publications were protected by the defence of fair comment. In this regard, the Court stated: “Notwithstanding that the statements are defamatory, in the sense that they might tend to reduce [the plaintiff’s] reputation in the community, the statements that he is a “troublemaker”, do not allege any criminal, quasi-criminal or immoral actions, nor does the term imply an improper motive on the part of [the plaintiff]. 2007 May 23
2007 October 25
The British Columbia Supreme Court dismissed defamation claims by parents of the defendant arising from communications by the defendant to her siblings and their spouses alleging physical and sexual abuse by the plaintiff P.B. and failure to prevent its occurrence by the plaintiff J.B. Some of those communications consisted of emails. The Court held the communications occurred on an occasion of qualified privilege. The Court also found that certain allegations of the defendant R.V.E. against P.B. were true and awarded damages to the defendant R.V.E. on her counterclaim against the plaintiff P.B.
2007 October 18
The British Columbia Court of Appeal unanimously sustained a summary judgment by the trial court [2007 BCSC 630] dismissing this libel action over postings on an internet website because the plaintiffs had not proven the defendant published the alleged libels.
2007 September 26
The Quebec Court (Civil Chamber) dismissed defamation claims over emails sent by the Defendant within the plaintiff’s workplace. The emails at issue related to a dispute between the plaintiff and the defendant arising from their collaboration on the development of a website.
2007 September 4
The British Columbia Supreme Court dismissed this libel action against Yahoo, a foreign defendant with no ties to British Columbia. “Yahoo has no offices in Canada, is not registered to do business in Canada and does not pay Canadian taxes. Yahoo does not do business and has no physical presence or bank accounts in British Columbia. The servers for Yahoo’s internet services … are not located in Canada. The fact Yahoo can be accessed on the internet from a computer in British Columbia is not evidence it is carrying on business in British Columbia.”
The Court, applying Dow Jones Co. Inc. v Gutnick (2002), 194 Aust.L.R. 433 (H.C.) and Barrick Gold Corp. v Blanchard and Co.,  O.J. No. 5817 (S.C.), held that the defamation is committed at the time and place when a person downloads the impugned material from the internet.
The plaintiff in this case “neither alleged nor tendered any evidence that any individual in British Columbia has downloaded and read the impugned material posted … on the website.”
2007 September 4
The Ontario Superior Court of Justice struck out a paragraph in the plaintiff’s statement of claim which alleged that a statement on the defendant company’s website was defamatory. The court held that it was “plain and obvious” that it was “unlikely in the extreme that a reasonable farmer or operator of a retail store [the class of persons to whom the remarks were addressed] …would understand the statements alleged to have the defamatory meaning imputed to them by the plaintiff.”
2007 May 23
The Ontario Superior Court of Justice dismissed an action brought by the plaintiff over a 1997 Law Society of Upper Canada report summarizing her disbarment proceedings which remained accessible until April 2004 through the Law Society website. The Court noted that on October 16, 2006, the Divisional Court had dismissed the plaintiff’s motion for leave to appeal from the Divisional Court decision upholding her disbarment and that two other judicial review applications brought by the plaintiff with respect to two other discipline decisions were both dismissed for delay on September 2006. The Court held that “[a]ll aspects of the plaintiff’s defamation cause of action are incapable of being proven and legally untenable” and denied leave to deliver a proposed amended statement of claim.
2007 May 16
On appeal from the November 16, 2006 decision of a Master, a Justice of the Alberta Court of Queen’s Bench sustained the Master’s conclusion that the claims based on alleged vicarious liability should be dismissed on a summary judgment application by the defendant employer. “I agree with the Master’s conclusion that none of the cases cited by the Plaintiffs would extend the concept [of vicarious liability”] to the improper use of technological equipment which is available to virtually all employees in almost all business premises.” The defendant employee had established a domain name using the trade name of his former employer and redirected it to a gay pornographic website. The plaintiffs sued, inter alia, for defamation by innuendo.
2007 March 16
The British Columbia Supreme Court summarily dismissed this libel action against one of the four defendants (W de Simone) concerning allegedly defamatory website articles. The Defendant de Simone deposed in an affidavit that he was never involved in setting up the website or any of its contents: “I never wrote or published or approved any articles, nor did I have knowledge of the plaintiff. Prior to this litigation I have never even seen the articles regarding the plaintiff which are in issue.” The Court noted that since commencing the action the plaintiffs had about 10 months to find evidence linking the defendant to the publication but had failed to do so.
2006 November 28
The British Columbia Supreme Court struck out a defence that an allegedly defamatory posting and an allegedly defamatory article on a website “consist of protected expression under the Canadian Charter of Rights and Freedoms, s. 2(b) and to the extent the traditional common law of defamation would impose liability on the defendant for the posting, the law is to that extent of no force or effect.” In dismissing this defence, the Court relied on an earlier decision of the BC Court of Appeal in Moises v Canadian Newspaper Co. (c.o.b. Times-Colonist) (1996), 24 B.C.L.R. (3d) 211, where that court reviewed the Supreme Court of Canada’s decision in Hill v Church of Scientology of Toronto,  2 S.C.R. 1120, and stated: “What emerges from the foregoing authorities is a justified unwillingness to hold that the common law of defamation is inconsistent with Charter values. Freedom of expression is of fundamental importance in Canada, but so is the dignity of the individual and his or her right to protect and preserve a good reputation.” The Court held that it was plain and obvious that the Charter defence was bound to fail.
2006 November 16
The Alberta Court of Queen’s Bench summarily dismissed a claim for defamation against the defendant company holding that it not vicariously liable for the acts of its employee R Draper (an ex-employee of the plaintiff) who admitted doing “a very silly thing.” “Believing he was owed $1500 by his former employers, he used the internet connection of his present employer [the defendant company] to register the name of the former employer’s company as a domain name … hoping to sell the domain name to his former employers and make back the money he says he is owed. However, he didn’t stop there. He says that he then directed the domain name [of his former employer to his current employer’s website], and later to a pornographic website.”
Rejecting the plaintiff’s submissions there were sound policy reasons to hold the corporate defendant liable for the employee’s misuse of its computer facilities, particularly since the defendant had no written policy with respect to internet use or email, the Court noted there was no connection between R Draper’s redirection of the web domain address and his duties as an employee. “In today’s world, virtually all employees who work in offices, stores, or restaurants have access to computers, telephones and faxes. The Plaintiff’s argument would lead to the result that employers are liable for a single unauthorized act or an employee where communications equipment that is accessible and incidental to the employee’s position, such as computers and telephones, is used for the employee’s own improper purpose.”
2006 October 26
The British Columbia Court of Appeal upheld a lower court order dismissing a defamation claim against two defendants, who were alleged to be real estates agents and officers and directors of the corporate defendant. The plaintiff had complained that the two defendants “said and did nothing” when they received an allegedly defamatory email from a third individual defendant and that their “constituted an endorsement” of the defamatory allegations. The Court of Appeal agreed with the lower court that “publication” is a necessary element of the tort of defamation and that “silence” did not satisfy that requirement.
2006 July 7
The Yukon Supreme Court struck out a defamation claim relating to an email which the plaintiff alleged was sent to him by the Public Service Commissioner in March, 2005, which the Commissioner also copied to the plaintiff’s alleged union representative. The plaintiff having failed to plead express malice in relation to that email, the Court held that the email was sent on an occasion of qualified privilege and the plaintiff’s defamation claim therefore disclosed no reasonable cause of action. Alternatively, the Court would have dismissed the defamation claim pursuant to Rule 18A (summary trial) in view of the affidavit evidence before the Court.
2006 March 31
Angle v LaPierre, 2006 ABQB 198, affirmed 2008 ABCA 120
The Alberta Court of Queen’s Bench held that defamatory website criticism by the defendant parents targeted at several school principals, teachers and the teachers’ association was not protected by the defence of qualified privilege. The Court noted that the defence is “occasion specific” and that to succeed, the a defendant who pleaded qualified privilege had to prove that he or she was writing to discharge some public duty or interest and that “the persons to whom she [or he] …wrote had a corresponding duty or interest in hearing or reading those words.” In the case of the defamatory website postings, the Court concluded that such publications “to the world” went “beyond the bounds of reciprocity” and were not protected by qualified privilege. The Court rejected defence submissions that by sending “cease and desist” letters to defendants, the plaintiff teachers’ association s took essentially private disputes into the “broader public forum” such that the defendants were entitled to use that same forum for their publications. The Court noted that the association did not post the cease and desist letters on the Internet.
2006 February 27
The Ontario Superior Court of Justice struck out this claim for damages against the Ontario Securities Commission (“OSC”) and its litigation counsel in its Enforcement Branch which was based in part on the publication on the OSC website of a Panel decision that the plaintiff “permitted, authorized and acquiesced in the conduct of Arlington [Securities Inc.]” which company the Panel found “failed to deal honestly and in good faith with its clients.” The plaintiff had not appealed the OSC decision to the Ontario Divisional Court, an option that was available to him pursuant to s. 9 of the Ontario Securities Act. The Court held that the website publication of the OSC decision was protected by privilege: “The OSC had a legitimate interest in bringing the decision to the attention of the investing public in accordance with its statutory mandate. It did so by posting a copy of the decision on its website.”
2005 January 11
Porter v Robinson Sheppard Shapiro, Court of Appeal for Ontario, Docket: C42157, reversing 2004 June 29, Ontario Superior Court of Justice File No. 03-CV-243741 CM2
The Ontario Court of Appeal held that the evidentiary basis before the lower court judge was not sufficient to resolve the issue whether posting on the defendant law firm’s website of a communiqué summarizing a judgment of the Supreme Court of Canada in Whiten v Pilot Insurance Co. (2002), 209 DLR (4th) 257 was a publication on an occasion of qualified privilege.
In Whiten, the Supreme Court of Canada reversed a decision of the Ontario Court of Appeal and reinstated a $1 million jury award of punitive damages against an insurance company for bad faith denial of an insurance claim, in the process defining the basis on which punitive damages may be awarded by Canadian courts.
The lower court judge, whose summary judgment decision was reversed, had concluded that that defendant law firm had a duty, at least to their clients, to communicate the information, stating: “The Internet is probably the least expensive and most efficient means of conveying this information, not only to existing clients, but to potential clients, and to the insurance community, all of which have a reciprocal interest with the defendant in receiving the information.”
A settlement of this libel action during the third day of trial means that the issue of qualified privilege for website postings will not reach the Court of Appeal for determination in this case.
[NOTE: Although Chris Porter was mentioned in the Supreme Court of Canada’s judgment in Whiten v Pilot Insurance, Chris Porter was not the Pilot Insurance employee who denied Daphne Whiten’s insurance claim against Pilot nor was he in fact personally guilty of any bad faith towards Whiten. Chris Porter was not even called to testify at the trial in Whiten v Pilot Insurance. Chris Porter settled his libel action against the law firm on the third day of the trial. The settlement agreement contains certain terms which cannot be publicized on the Internet. Chris Porter has been unsuccessful so far in attempts to have the Supreme Court of Canada clarify certain passages in its judgment to make Chris Porter’s non-involvement clear to readers unfamiliar with the detailed evidence placed before the trial court.]
2003 November 12
The British Columbia Supreme Court considered a common law defence of qualified privilege pleaded by two unions in relation to a defamatory posting on their website about a rival union, the plaintiff. Christian Labour Association of Canada v Retail Wholesale Union et al, 2003 BCSC 2000.
Although the defendant contended the defamatory expression was “aimed” only at its own members — who would have an interest in receiving union news –the court noted the defamatory message was not posted in the password-protected ‘chat room’ on the union website; instead the message was posted on the portion of the website to which anyone could have access.
It was admitted that the public would not have an interest in the message as a political one or as a public statement.
Although there had been 530 visits to the site, the identity of the visitors could not be proven precisely.
In these circumstances, the Court held that the publication was “excessive” thereby defeating the claim of privilege for the website posting.
The Court stated [at paragraphs 30-31]:
In my opinion the defendants’ claim for qualified privilege on the materials before me must fail. I find that the likelihood of a significant exposure to persons not interested is there, and that it is excessive because it is not incidental and reasonably necessary to publish the messages on the defendants’ website without restriction.
It is not that the internet and use of a website is to be discouraged, but if statements are to be made which are admittedly defamatory, and there is a risk of significant numbers of uninterested people seeing it, that can be excessive, and will be if restrictions are available but disregarded.
See McConchie and Potts, Canadian Libel and Slander Actions, “Chapter Thirty-Five, Pre-Trial Disposition of Claims and Defences,” “Summary Trial”, page 666, 669-670.