DATE: 20030520

DOCKET: C38484

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., DOHERTY and GILLESE JJ.A.

B E T W E E N:

YAHONG BAI, SHUHUAN QU, LAN SING CHENG, DONGFENG YANG, DONG XU, LI ZHENG, SUZHEN LI, JIN XIAO, LINGYI ZHANG, SUSAN MITCHELL, DAN DI PASQUALE, MICHAEL KOO, MARY KOO, JANE HU, ZHILAN GUO, BENDA LIU, ZHENHUA HE, FENHHUA FENG, NING BAI, YUE WEI, JINAN LIU, CHUNLING YANG, QIAN GUO, ZHUJIE TANG, MING-FU CHEN, ROSE JEN CHEN, JANET YUEN, PIANPIAN LI, GORDON YU, SHEREE WONG, YING GAO, ZHUOFU LI, JANE YU, ZHUOYING HUANG, WEN WANG, DONGHUI REN, ZHENG WANG, ENKAI LIU, YOUMIN QIAN, MEI WU, YUN HUANG, MANJING LIU, NIANZENG SHOU, XIANLING CHEN, YONGZHEN LIU, ZHIBO WANG, QI LIU, FAN WANG, WEN-CHEN SHADBOLT, BARBARA QUI, THI KEO DUONG, RONGTIAN QI, JOHNNY WU, LI WANG, HONG JI, FENGYING MAO, TONGGUI YE, TONY CHUNG WONG, YUNQIN HUANG, SUI-LAN LO, GORDON LO, MING YE, QILI ZHANG, XI MING LIU, TIAN YING PENG, FUZHEN XU, FEILI ZHANG, YUSHAN ZHI, XIAOJUN YANG, QIU MEI HOU, ANTHONY TIN CHEUNG YEUNG, HUIZHEN LIU, TONGJIN ZHANG, HONG WANG, WEN YING LI, SHAOXU LI, TIAN FU, FANG WU, YONG XIN JACKIE CHEN, CHI SHU LEE, GANG LIANG, CHRIS TROTTIER, XIAOLEI WU, YANYAN CAI, BING LU, TANYA MA, SAM CHU, YONG SUN, HOCK TUNG HUI, SHEILA HUI, CHAO WEN, YING LI, LOUIS YIP, SOPHIA SUN, SHAOJIU WANG, JIJUN WANG, WENLI CHANG, TIEJUN ZHANG, CHRISTINE LOFTUS, YUFANG ZHANG, LANLAN LIU, MICHAEL MAHONEN, ZOE ACKAH, ZENON DOLNYCKYJ, WAI-KWAN CHEUNG, JIN MEI, QINXIN YU, RUOYU LAN, JACK FAN, MINGDA NI, QIANG ZHOU, MAY PENG, CHRISTINE MARSH, HUI YANG, ZIYU FAN, XUEYE ZHU, XIAOYAN SUN, YING ZHU, R. CHEN, YUNPING CHENG, LITIAN ZHOU, ZHILI LI, HUIYING CHEN, LING LI, XIAOE HU, WEICAI LI, NINGXU ZHAO, DONGDONG YANG, XIAOMEI GAO, ZHU WU, KUN LUN ZHANG, ZHONG, GERRY M. SMITH, YONGTAO HUANG, MIN LIU, GANG CHEN, DIANE SHI, CINDY K. Y. CHAN, KATHY GILLIS, XIAOYANG GAO, SHIZHONG LEI HONG YU, JIE HE, JIE LI, HUAIWEN CHAN, LINGDI ZHANG, YANG WANG, HUA GAO, MARY ZHU, ANNIE WU, CHANGGENG XI, HONG LI, JING ZHI, DAIMING HUANG, ROSE CHAN, DONNA HE, YEE HWA SHIN, LING ZHANG, QIAO YING NIE, ZHENKUN XIE

Plaintiffs (Appellants)

• and -

SING TAO DAILY LIMITED (Ontario Corporation #1287844), SING TAO DAILY (CANADA) LIMITED (Ontario Corporation #313470), SING TAO NEWSPAPERS (TORONTO) LIMITED, John and Jane Doe(s), yet unidentified defendants responsible for the actions of the Defendant Corporation(s) to be identified and added as parties

Defendants (Respondents)

Counsel: Rocco Galati for the appellants Tony S. K. Wong for the respondents

Heard: April 1, 2003

On appeal from the order of Justice Nancy L. Backhouse of the Superior Court of Justice dated June 20, 2002.

McMURTRY C.J.O.:

OVERVIEW

[1] This is an appeal from the order of Backhouse J. dated June 20, 2002 striking out the appellants’ claim for libel as disclosing no reasonable cause of action. The appellants who are all practitioners of Falun Gong, allege that they were libeled by an article published in the respondent’s newspaper, the Sing Tao Daily. The motions judge also struck the appellants claims for “incitement of hatred”, “crimes against humanity” and “negligent research” as disclosing no reasonable cause of action.

THE FACTS

[2] The respondent, Sing Tao Daily, publishes a Chinese language daily newspaper sold in Canada. On September 20, 2001, in the aftermath of the terrorist attack on the World Trade Centre, the respondent published an article under the headline “Radical Religious Groups Advocate Destroying the World (“the Article”). The Article profiles a number of groups, with accompanying photographs, including the Branch Dividians, Solar Temple, the World Trade Centre bombers and Falun Gong. The appellants are all practitioners of Falun Gong.

[3] The following segments of the Article as translated contain the references in their entirety to the Falun Gong.

(a) Under the heading “Falun Gong”, as translated, the Article states:

Founded by Li Hongzhi, Falun Dafa is aimed at cultivating the ultimate qualities of the Universe—“Truth-Compassion-Tolerance”. Falun Gong insists that it is intended to cultivate mind nature, thus is beneficial in improving physical health, mental clarity and morality, however, in Li Hongzhi’s Dafa (teachings), it has always laid emphasis on anti-science, anti-society and anti-civilization. He also claim to the followers that the earth will inevitably have a big explosion, that is to say the end of the world; yet he has the power to put off the explosion for 30 years. Falun Gong allegedly lead people to superstition, delude people into setting themselves alight, and self-mutilation, in order to achieve the “consummation” to ascend to heaven. As a result, Falun Gong has been defined as an evil cult in China.

(b) Under the heading “Religious incident involving deaths and injuries”, the Article states:

Falun Gong: According to reports from mainland China, Falun Gong has caused more than 1700 deaths in Mainland China, either from delay of medical treatments or suicide acts, even self-mutilations, because it is anti-science and anti-society. In January this year on Tienanmen Square, five Falun Gong followers posted a quigong stance, shouted “Falun Dafa is good”, then set fire to themselves in an attempted group suicide, which left one dead, four injured. The four injured lost the outward form of a man as a result of burns. CNN TV at the scene filmed the entire course of the incident.

[4] The appellants do not include three of the plaintiffs in this action who are identifiable in a photograph accompanying the Article which is the subject matter of the action. The libel claims of these three plaintiffs were permitted to proceed.

[5] The Falun Gong originated in China but has practitioners or adherents throughout the world. In 1999 the Chinese government estimated that there were 100 million Falun Gong practitioners.

[6] All of the plaintiffs are resident in Canada except the three plaintiffs shown in the photograph, which was part of the Article, who live in Hong Kong. It will be noted that the words complained of in the Article do not refer specifically to any members of the Falun Gong in Canada. Indeed, the Article makes references only to events that allegedly occurred in China.

ISSUES

[7] There are two issues on this appeal:

(1) Did the motions judge err in striking out the libel claims of the appellants?

(2) Did the motions judge err in striking out the appellants’ claims for “incitement of hatred”, “crimes against humanity” and “negligent research”?

ANALYSIS

Issue 1—The Libel Claims

[8] The motions judge found that the appellants could not succeed in their libel action, because the libel was not “of and concerning” the plaintiffs. The appellants argue that while they are not individually named in the article, they are nonetheless each singled out by the statements about Falun Gong. They plead in their statement of claim as follows:

all Falun Gong (Da Fa) practitioners, due to their unique activities, physical exercises, meditation, and dissemination of literature, are readily and instantly, identifiable as practitioners, particularly within, but not restricted to, the Chinese community in Canada.

[9] The appellants therefore submit that they meet the “of and concerning” requirement for libel, because as identifiable practitioners of Falun Gong, the Article’s general statements concerning Falun Gong attach to them as individuals.

[10] An action in libel is a personal action based upon injury to one’s own reputation. Thus, it is necessary to show that an allegedly libelous publication points to the plaintiff as a particular individual. However, the appellants submit that this does not mean that an individual cannot be defamed as member of a group that is targeted by a publication.

[11] The appellants rely on the decision in Lennon v. Harris (1999), 45 O.R. (3d) 84 (Sup. Ct. Jus.), in which the court refused to strike a claim by several union leaders, who claimed to have been defamed by certain statements about “teachers’ unions” and “union bosses”, made by the Premier and the Minister of Education of Ontario, in the context of a dispute over changes to the education system. While the plaintiffs were not named in the statements, the motions judge concluded that in the circumstances he could not conclude that the words complained of were not spoken “of and concerning” them.

[12] In my view, this decision does not assist the appellants. The union leaders in Lennon were not claiming to have been libeled merely on the basis of their status as “union bosses”, but rather as the particular union leaders that were engaged in a dispute with the defendants. They were the specific target of the statements. In the present appeal, there is nothing that identifies the appellants in a similar manner.

[13] In Seafarers International Union of Canada et al v. Lawrence (1979), 24 O.R. (2d) 257, MacKinnon A.C.J.O. at 263 underlines the personal nature of a libel action as follows:

The words to be actionable must be understood as being published of and concerning the plaintiff. It is pointed out in Gatley, supra, p. 139, para 283:

Where the words complained of reflect on a body or class of persons generally, such as lawyers, clergymen, publicans or the like, no particular member of the body or class can maintain an action. “If” said Willes J. in Eastwood v. Holmes, [(1858) 1F & F347 at 349] “a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual.”

Viscount Simon, L.C. in Knupffer v. London Express Newspaper Ltd., [1944] AC 116 at p. 118, in opening his speech stated: “My Lords, it is an essential element of the cause of action for defamation that the words complained of should be published ‘of the plaintiff’.” Lord Russell of Killowen said, in the same case (p.123):

The crucial question in these cases in which an individual…sues in respect of defamation of a class or group of individuals is whether on their true construction the defamatory words were published of and concerning the … plaintiff.

[14] There is nothing to distinguish the appellants from the class of all Falun Gong practitioners throughout the world. In this context, I am of the view that, the succinct endorsement of Justice Zuber in Sun Tanner’s Image v. White (12 September 2000), Windsor 00-GD-4893 (Sup. Ct. Jus.), affirmed at [2001] O.J. No. 1661 (C.A.), provides a helpful approach:

It is necessary that the plaintiffs show that they are identified or singled out. The words clearly do not identify the plaintiffs. Further it is not pleaded that the class is so small that the plaintiffs are necessarily identified and would lead one to believe that the plaintiffs are the target of the words. As a result this action must fail and the claim is dismissed.

[15] I agree with the respondent that where a matter is allegedly libelous of a substantially large and indeterminate group of persons, it does not give rise to a cause of action for any specific member of that group or class unless it can be shown that the libel complained of points to a particular member or particular members of the group.

[16] I am also of the opinion that a reasonable reader of the respondent’s Article would likely interpret the reference to the “Falun Gong” as referring to Falun Gong practitioners living in China.

[17] For these reasons, I would therefore dismiss the appeal with respect to the order striking out the appellants’ claim for libel.

Issue 2—The Remaining Claims

[18] The motions judge found that the claim for “negligent research” was simply another way of framing the libel action, and could stand on no better ground. She dismissed the claims for “incitement of hatred” and “crimes against humanity” for the same reason, noting also that such conduct may be prosecuted in a criminal court and/or under Human Rights Legislation. The appellants submit that there should be a civil remedy to correspond with the criminal offence of inciting hatred, and that their claims fall outside the ambit of the Human Rights Code, R.S.O. 1990, c.H.19, which is not concerned with intentional torts.

[19] I agree with the motions judge’s decision that these claims can only be properly addressed under the law of defamation. In pursuing their claim for defamation, the appellants also seek to create new causes of action. In Frame v. Smith (1987), 42 D.L.R. (4th) 81 (S.C.C.) at 114, LaForest J. warns of the danger inherent in this course, noting that novel and ill-defined causes of action, no matter how well intentioned, may cause more harm than the wrong they seek to address.

[20] In my view, the concerns articulated by LaForest J. are applicable in the instant appeal. The appellants argue, for example, that the respondents are liable for the conduct of, among others, the government of the People’s Republic of China. The scope of potential liability under the proposed causes of action is unclear at best, and the need for the establishment of new causes of action has not been established.

[21] I am also of the view that the statement of Montgomery J. in Elliott v. Canadian Broadcasting Corp. (1993), 16 O.R. (3d) 677 is relevant to the other causes of action that are advanced on behalf of the appellants when he stated at p. 689:

In my view, the whole claim rests on the publication of the film and the book. Attempts to find another cause of action inexorably lead back to the alleged harm and damage to reputation by the words claimed of. The so-called subsidiary torts are nothing more or less than defamation.

DISPOSITION

[22] For these reasons, I would dismiss the appeal with costs payable to the respondent on a partial indemnity basis in the amount of $6,000.

“R. Roy McMurtry C.J.O.”

“I agree. Doherty J.A.”

“I agree. E. E. Gillese J.A.”

RELEASED: May 20, 2003 “RRM”