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DEFAMATION - Practice

Wednesday, October 17, 2018 @ 8:39 AM  


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Appeal by the defendants from refusal to dismiss a defamation action pursuant to s. 137.1 of the Courts of Justice Act. The plaintiff, Armstrong, was an incumbent candidate in a municipal election in 2014. He retained his seat as a city councillor. After the election, the plaintiff sued his opponent, her campaign team, and a local radio station seeking damages for defamation in connection with remarks made during the election campaign. The impugned comments were posted on Facebook and Twitter and suggested that the plaintiff exhibited a pattern of unethical and illegal conduct used to bully and intimidate others, which included a prior dated conviction for sexual assault. The defendants moved to dismiss the claim under s. 137.1 of the CJA. The motion judge accepted that the defendants' expressions were a matter of public interest. The motion judge concluded that the harm likely to have been suffered by the plaintiff as a result of the defendants' expressions was sufficiently serious that the public interest in permitting the lawsuit to continue outweighed the public interest in protecting those expressions. The defendants appealed.

HELD: Appeal allowed. In respect of the claim against the radio station, the motion judge erred in applying the responsible communication defence. The radio station's publication of the comments did not contain material factual errors. They presented the explanation for the opposing candidate's disclosure of the plaintiff's dated criminal conviction in her own words. The presentation was balanced and fair. The radio station neither supported nor dismissed the opposing candidate's explanation for the disclosure. The plaintiff chose to decline to comment. On the record, a reasonable trier could not be satisfied that the radio station did not have a valid defence of responsible communication. The claim against it was accordingly dismissed. In respect of the claim against the opposing candidate and her team, the motion judge erred in treating the impugned statements as if they had been made by all of the personal defendants. A realistic assessment of the litigation showed that the claim was directed at the opposing candidate. Other comments by the other defendants were peripheral with minimal impact on the defendant. The modest evidence of harm to the plaintiff from the opposing candidate's comments was outweighed by the strong public interest in promoting freedom of expression by candidates during the electoral process. The public interest analysis favoured dismissal of the plaintiff's claim.

Armstrong v. Corus Entertainment Inc., [2018] O.J. No. 4441, Ontario Court of Appeal, D.H. Doherty, D.M. Brown and G. Huscroft JJ.A., August 30, 2018. Digest No. TLD-October152018006