Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230613 DOCKET: COA-22-CV-0293

Doherty, Hoy and Favreau JJ.A.

BETWEEN

Karen Bell Plaintiff (Appellant)

and

Garden River First Nation, Brandi Nolan and Trevor Solomon Defendants (Respondents)

Counsel: Naomi Sayers and Mark Bourrie, for the appellant Corey B. Shefman and Victoria Wicks, for the respondents

Heard and released orally: June 8, 2023

On appeal from the decision of Justice Michael N. Varpio of the Superior Court of Justice, dated October 11, 2022.

Reasons for Decision

[1] The appellant, Ms. Karen Bell, appeals from the dismissal of her defamation action.

[2] Ms. Bell is a councillor on the Garden River First Nation (“GRFN”) Band Council (“Council”). In November 2021, Council passed a motion (the “Censure Motion”) censuring Ms. Bell, stating that she had shared certain “false information” in a Facebook post and that the information was “very misleading”. Ms. Bell subsequently sued, based on the content of the Censure Motion, alleging that it was defamatory.

[3] The respondents – the Council and the two councillors who had made and seconded the Censure Motion – brought a summary judgment motion. The summary judgment motion judge found the Censure Motion was prima facie defamatory. However, the motion judge further found that Ms. Bell did in fact share false and misleading information in her Facebook post as the Censure Motion had stated. Since the defamatory statement was true, the defence of justification was available to the respondents. The motion judge was satisfied there was no genuine issue for trial in respect of the justification defence and dismissed Ms. Bell’s action.

[4] We have two matters in front of us. First, Ms. Bell brings a motion to adduce fresh evidence and, second, she argues that the motion judge erred in his interpretation of the meaning of the language used in the Censure Motion. We will deal with the fresh evidence first.

[5] The proposed fresh evidence consists of the Council’s 2021 audited financial statements. Those statements became available in December 2022, well after the motion judge’s decision. It is uncontested that they were not available at the time of the decision. The material is offered to show that Ms. Bell’s complaints about the lack of transparency in the conduct of the Council’s financial affairs and her claims that she had not seen a budget for the 2021 fiscal year were true.

[6] The Censure Motion which led to Ms. Bell’s defamation claim did not rest either on the alleged falsity of Ms. Bell’s opinion about the Council’s lack of transparency, or the absence of a 2021 budget. Rather, Ms. Bell’s claim turned on the meaning conveyed in the Facebook post when Ms. Bell said she had seen “nothing” for two years in response to requests for financial statements and budgets. The motion judge determined that Ms. Bell had seen financial and budget-related documentation in her capacity as a Council member during that two-year time period. He identified two specific documents which were presented at Council.

[7] The motion judge’s finding that Ms. Bell’s statement that she had seen “nothing” for two years was false is unaffected by anything in the proffered fresh evidence. The evidence is therefore irrelevant and inadmissible. The motion to adduce fresh evidence is dismissed.

[8] Turning to the substantive appeal, Ms. Bell advances essentially the same argument that failed before the motion judge. Ms. Bell submits that, properly understood, the words of the Censure Motion describe her as a liar without any qualification, or at least as a liar in respect of the entirety of the relevant Facebook posting. Ms. Bell submits that the truth of the respondents’ claim that the information in the Facebook post was false and misleading had to be considered by reference to the entirety of the Facebook post and the meaning to be taken from the words as a whole.

[9] The motion judge did not accept Ms. Bell’s interpretation of the Censure Motion. The motion judge found that the reference in the Censure Motion to information in the Facebook post that was “false” and “very misleading” was a reference to the assertions in the Facebook post that were expressly quoted in the Censure Motion, three paragraphs above the paragraph in which the information was described as “false” and “very misleading”.

[10] Despite counsel’s forceful submissions, we agree with the motion judge. On a plain grammatical reading of the Censure Motion, the reference to information as “false” and “very misleading” is a refence to the very information quoted immediately above and not to any broader information. Properly read, the assertion in the Censure Motion that certain information in Ms. Bell’s Facebook post was false and misleading is a reference to the information quoted in the Censure Motion.

[11] The motion judge was satisfied that the statement in the relevant passage from the Facebook post to the effect that Ms. Bell had “seen nothing” when financial information was sought, was false and misleading. Financial documentation had been produced to all councillors, including Ms. Bell. Consequently, the motion judge was satisfied the defence of justification had been made out.

[12] In his submissions, counsel for Ms. Bell made the point that the financial information provided to the Council was, at least according to Ms. Bell, inaccurate and potentially misleading in many respects. We agree with the motion judge that this submission misses the point insofar as the availability of the justification defence is concerned. The motion judge dealt with this point, in our view, correctly, at para. 36 of his reasons:

Ultimately, it may be that that which was presented to council was inadequate, deficient or otherwise unacceptable, but that is not relevant to the action or to the summary judgment motion…

[13] We agree with that conclusion. In our view, the motion judge properly dismissed the action. The appeal is dismissed.

[14] Costs awarded to the respondents on a partial indemnity basis in the amount of $12,000, inclusive of disbursements and relevant taxes.

“Doherty J.A.” “Alexandra Hoy J.A.” “L. Favreau J.A.”