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DEFAMATION - Defences - Fair comment

Thursday, April 25, 2019 @ 8:06 AM  


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Appeal by the defendant from a decision refusing to dismiss the defamation action under the anti-slapp provisions and from the costs order of $19,731 in favour of the respondent. While the decision on costs was under reserve, the respondent’s counsel made unsolicited submissions to the motion judge without the appellant’s consent. The anti-slapp motion was brought after the action was set down for trial. The respondent was the principal of an online media outlet, Rebel News, that commented on political and social issues, espousing right-wing or right-leaning views. The appellant maintained a blog and expressed his views almost exclusively on Twitter. The appellant posted tweets highly critical of the respondent and of Rebel News relating to their campaign to raise money for the victims of the Fort McMurray forest fires, accusing the respondent of defrauding victims of the Fort McMurray forest fires by misappropriating donations. The motion judge held the appellant failed to establish that the expressions related to a matter of public interest as the appellant’s tweets were in pith and substance direct personal attacks on the respondent. The motion judge concluded that the appellant’s statements were motivated by malice and that there were reasonable grounds to believe that no defence of fair comment was made out. The motion judge was satisfied that the interest in permitting the within proceeding to continue to trial outweighed the public interest in protecting the impugned expression contained in the appellant’s tweets as there was no public interest in protecting the tweets.

HELD: Appeal dismissed. In focusing on the merits of the allegation of defamation, the manner of expression and the motives of the appellant for his tweets, the motion judge committed an error of law. Her decision was thus not entitled to deference. A trier could reasonably conclude that some of the defamatory statements made amounted to factual assertions, were not recognizable as comment and could reasonably conclude that the statements were made with malice. A trier might also reasonably conclude that the defence of fair comment did not apply to the Twitter posts. The respondent established that the harm likely to be suffered, or which had been suffered, was sufficiently serious that the public interest in allowing the proceeding to continue outweighed the public interest in protecting the appellant’s expression. The appellant’s statements attributed serious criminality to the respondent. The appellant engaged in a sustained attack upon the respondent. It could not be said that any damages awarded would necessarily be nominal, or that the respondent had suffered only insignificant harm. The appellant’s tweets posted were imbued with hyperbole and vulgar vitriol, and admittedly false in many respects such that there was little value in protecting their expression. The costs award was reduced to $18,000, to credit the appellant for unnecessary travel costs incurred when the hearing of the motion was adjourned by the respondent without the appellant’s consent.

Levant v. Day, [2019] O.J. No. 1536, Ontario Court of Appeal, D.H. Doherty, G.I. Pardu and I.V.B. Nordheimer JJ.A., March 28, 2019. Digest No. TLD-April222019008