Court File and Parties
COURT FILE NO.: CV-17-585589 DATE: 20180719
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DEI Films Ltd. Plaintiff – and – Rakesh Tiwari and 3885275 Canada Inc., carrying on business as CMR 101.3 Diversity FM Defendants
COUNSEL: Muhammad Zafar for the Plaintiff Raj K. Sharda for the Defendant Rakesh Tiwari Igor Ellyn, Q.C. for the Defendant 3885275 Canada Inc.
HEARD: July 11, 2018
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] DEI Films sues Rakesh Tiwari and 3885275 Canada Inc., which carries on business as CMR 101.3 Diversity FM, for defamation. DEI claims damages of $1.5 million. Pursuant to s.137.1 of the Courts of Justice Act, Mr. Tiwari and CMR 101.3 bring anti-SLAPP motions (anti-strategic lawsuit against public participation) to have DEI’s action dismissed.
[2] For the reasons that follow, Mr. Tiwari’s and CMR 101.3’s motions are granted and DEI Films action is dismissed with costs to be determined.
B. The Kashmir and Indo-Pakistani Wars
[3] To understand the defamation claim and the anti-SLAPP motion, it is necessary to recall some history.
[4] After World War II, British India, whose population comprised both Hindus and Muslims, was partitioned into India and Pakistan. The principality of Kashmir was also involved in the partition. Both India and Pakistan desired Kashmir, which had a Muslim majority population. In 1947, the Indo-Pakistani War of 1947 broke out. A formal ceasefire was declared on January 1, 1949. As a result of the war, India gained control of about two-thirds of Kashmir and Pakistan gained control of the balance. War erupted again in 1965. The hostilities, which included the largest tank battle since WWII, lasted seventeen days, and there were thousands of casualties. With the Tashkent Declaration, a ceasefire was declared. In 1971, there was another war between India and Pakistan. This war did not involve the Kashmir and concerned the Bangladesh liberation movement. After two weeks of intense warfare and very heavy casualties, Pakistani forces in East Pakistan surrendered, following which the People's Republic of Bangladesh was created. In 1999, there was another Indo-Pakistani war, known as the Kargil War. Kargil is a district within the Indian section of Kashmir. The war was a military defeat for the Pakistani Army. There have been insurgencies involving Kashmir from time to time, heightening tension between India and Pakistan, and India has accused Pakistan of supporting terrorists. Incidents include: an attack on the Indian Parliament in 2001, a terrorist attack in Mumbai in 2008, a 2016 attack on the Indian Army’s brigade headquarters, and an Indian Army raid into Pakistan-Administered Kashmir. India and Pakistan are both military powers with nuclear armaments.
C. Facts
[5] CMR 101.3 is a multi-cultural radio station owned Stanislaus Antony who emigrated to Canada from Sri Lanka more than 30 years ago. He does not speak Hindi, one of the languages spoken on his radio station.
[6] CMR 101.3 operates a multicultural FM radio station that broadcasts programs to 20 ethnic groups in 24 languages. CMR 101.3 mainly serves the South Asian communities of Southern Ontario. The station licenses broadcast time to independent producers whose programs include music, news, and forums for debate and discussion of community, local, national, and international news and events of interest to the diverse ethnic communities. CMR 101.3 does not monitor the content of the broadcasts that are produced by the independent producers. Every program must adhere to CRTC guidelines, but this has never been a problem at CMR 101.3 with the Apna Radio program, which has been on the air for nine years.
[7] Mr. Tiwari is the independent producer and radio host of the 1-hour Apna Radio Program. The other co-host is Sunny Joshi. Apna Radio is broadcast in Hindi. It is a listener call-in show. It has been broadcast on CMR 101.3 since 2009 during the 6 to 7 p.m. time lot Monday to Friday. CMR 101.3 has no involvement in the production of Apna Radio apart from providing its broadcast facilities in a radio studio.
[8] DEI Film is in the business of a concert and event promoter. Its director is Sital Panesar. Mr. Panesar’s business associates are Brij Trikha and Ravi Verma.
[9] In 2016, DEI Film retained CMR 101.3 to provide promotional material for a DEI Film concert scheduled for July 2016. There was an angry dispute among Mr. Panesar, Mr. Trikha, Mr. Verma, and Mr. Tiwani as to the payment for the promotional materials. Because of the dispute, Mr. Panesar decided that DEI Films would no longer do business with Mr. Tiwari.
[10] Mr. Tiwari admitted that there was a dispute. He said that it was caused by Mr. Trika or Mr. Verma failing to pay what had been agreed. He said that he was not aware that because of the dispute that Mr. Panesar had decided to end any business relationship.
[11] There was also evidence from Mr. Joshi that in early 2017, he was approached by Mr. Trika about promoting a concert that DEI Films was planning for the summer of 2017.
[12] In 2017, DEI Films organized a concert called “Klose to You 2017” scheduled for August 5, 2017, for the Air Canada Centre in Toronto, Ontario, for performances by Sonu Nigham from India and Atif Aslam from Pakistan. Soni Nighham and Atif Aslam are music icons in their respective countries, and this was the first time that they would perform together. The concert was part of the celebrations for Canada’s 150th Anniversary.
[13] Mr. Trikha invested $100,000 in the Klose to You 2017 Concert.
[14] DEI Films promoted the Klose to You 2017 Concert by providing the producers of four radio programs broadcast on CMR 101.3. Mr. Panesar, however, refused to provide any promotional material to Mr. Tiwari because of the 2016 dispute. Mr. Panesar believes that this infuriated Mr. Tiwari. However, as already noted above, Mr. Tiwari said that he was unaware of Mr. Panesar’s attitude. In any event, DEI did not hire Mr. Tiwari to promote their upcoming concert.
[15] Meanwhile, on July 21, 2017, on its Facebook page, the Indo-Canadian Kashmir Forum posted a flyer suggesting a boycott of the Klose to You 2017 Concert. DEI Films was not aware of the posting.
[16] On July 28, 2017, Mr. Tiwari read about the proposed boycott. He decided that the boycott would be a possible topic for his radio show. He contacted Vidhya Bhushan Dhar. Mr. Tiwari invited Vidhya Bhushan Dhar to express his views about the proposed boycott of the concert. It is not clear whether Mr. Dhar was a member of the Indo-Canadian Kashmir Forum or an organizer of the boycott. What is known is that Mr. Tiwari knew Mr. Dhar, and that Mr. Dhar supported the idea of boycotting the concert.
[17] Mr. Tiwari also invited Deepak Rajdan to be a guest at the broadcast. Mr. Dhar and Mr. Rajdan are Kashmiri Pandits, a Brahmin community that lived in the Kashmir Valley.
[18] On August 2, 2015, three days before the concert, DEI Films had sold 6,245 tickets. The net capacity of the Air Canada Centre is 11,017 seats, which could be expanded to 13,000 seats at extra cost. DEI Films needed to sell 10,500 tickets to break even on the concert; i.e., DEI Films need to sell more than 4,200 tickets in 72 hours to break even.
[19] On August 2, 2015, Vidhya Bhushan Dhar and Deepak Rajdan, another supporter of the boycott, appeared as guests on the Apna Radio program. A transcript of the broadcast is set out below.
Translation and Transcript of Apna Radio Show on CMR Diversity 101.3 FM Broadcast on August 2, 2017 from 6 pm to 7 pm EDT 2nd Aug 2017
Intro Commercial from CMR : You are listening to CMR101.3FM
Intro Commercial of Apna Radio : [….].
Hindi Prayer [….]
Disclaimer : The views expressed by the listeners or advertisers are their own and do not necessary reflect the views of staff and management of CMR and Apna Radio Apne Geet. Similarly, we do not make any recommendations or endorsement for products mentioned or aired on our show. The sole purpose of this show is to provide information and entertainment. It is not intended to form any basis for investment decisions.
Commercial [….]
Sunny Joshi : [….] I Sunny Joshi welcomes you whole heartedly. Before we start headlines, Mr. Bobby Kakkar of Century 21 Innovative Reality has joined us now. [….]
Commercial [….]
Weather Update : [….]
News : [….]
Commercial : [….]
Birthday Song Music : [….]
Sunny Joshi : Welcome Friends, [….] I wanted to give you a little surprise, may be a little shock, so I have given. Today is the Birthday of Gautam Tiwari, son of my dear friend, producer and co-host of this show, Rakesh Tiwari. Today is the 21st birthday of Gautam Tiwari. Tiwari, ji, many congrats to you. [….]
Sunny Joshi [Announcement, ….]
Sunny Joshi : But before that let me tell you the “Topic of the Day”. There is an upcoming show in this weekend on 5th August of Sonu Nigam and Atif Aslam. And Facebook page of “Indo-Canadian Kashmiri Forum” is doing a protest about that show. According to them, this show should not happen. They have given their own reasons as well. But as we always and repeatedly say on our show that “art, literature and entertainment has no religion or nation”. Artists, author, entertainers are just there to entertain people. They bring people together. But in our studio, we have Vidhya Bhushan Dhar and Deepak Rajdan, they both are Kashmiri Pundit, let’s ask what is their view on this whole protest thing. But before that we have Waqar Khan Sahib, who has brought some terrific deals from Rogers, then we will have ‘their’ views. Lines are opened, and you can also express your views. [….]
Sunny Josh i: [….] Lines are flashing, but wait, I have with me Deepak Rajdan and Vidhya Bhushan Dhar. They both are Kashmiri Pundit, and let’s ask what is their view, as I have mentioned before that Indo-Canadian Forum has put up a Facebook page which is protesting that this show should not happen. Vidya, ji, welcome to Apna Radio.
Vidhya Bhushan Dhar : Sunny, ji, thank you so much to bring us on line. On your radio program, I would like to say this. In fact, I would like repeat the same thing and take this a bit further. Indeed art, literature has no religion, cast, or country, and here I would like to repeat what Charlie Chaplin has said: “An artist, musician, or writer, does have the religion, cast and nation, so I think that whosoever is listening to us on this program may agree that whatever is happening in India and whatever is happening at the border of India and Pakistan, also whatever is happening in Kashmir, we have to understand it. Also this [boycott] or comments are not happening for the first time about Pakistani artists. It is not the first time that people are opposing or making comments that this type of thing should not happen. You know that since partition, there have been four wars between India and Pakistan. And for seventy years there has been a cold war going on between India and Pakistan. More than five Lakhs peace loving people of my community have left Kashmir. They are living in their own country as a refugee being trapped in a cage. I am personally not against Sonu Nigam or Atif Aslam. Sonu is a very great artist.
Sunny Joshi : Are you against the peace and harmony? If two artists are coming here from India and Pakistan, what is wrong if they are talking about peace and harmony? We have to start from somewhere about peace and harmony.
Vidhya Bhushan Dhar : Please. I know what is happening in the last seventy years. We have run the from Aman Ki Asha to peace full train. But what did we get in return? We get 26/11, we get Mumbai attack, we get bomb explosion, we get attack on Amarnath travelers. Then, tell me how long we can sing the song of peace. I would like to share with you a small piece of poetry. “I want to fight you when some low-level person asks, Don't show your back, and talk about peace, either win the war on the power of love, or make that low life, kiss your feet.” We know but the question is that we are trying for peace, since seventy years. Nothing happened.
Sunny Joshi : But there has to be a beginning. War is not the solution.
Vidhya Bhushan Dhar : We are not talking about war, protesting against a show is not a war. In my opinion, all these programs are insulting the sacrifice of a soldier.
Sunny Joshi : You are telling me that you will not blame Sonu, but also your mind must be thinking that Sonu Nigam should not have done this show.
Vidhya Bhushan Dhar : Absolutely, in today’s situation, both singers should not have come on same platform. Both of them should not come on same platform. They are basically mocking the sacrifice of millions of soldiers.
Rakesh Tiwari : Why don't you think that if these two respectable artists come together on same platform, they will support and promote the peace?
Vidhya Bhushan Dhar : These kinds of shows have happened many times. How much peace have come till now? You have seen how dirty it got in the cricket matches.
Sunny Joshi : But these types of shows are not many. It is rare that such great artists from India and Pakistan come together. On one side stalwart singer Sonu Nigam of India, and on other hand Atif Aslam is also such a great artist from Pakistan.
Vidhya Bhushan Dhar : You have seen how dirty it got in the cricket matches.
Sunny Joshi : Ji.
Vidhya Bhushan Dhar : On the contrary, more hatred has erupted.
Sunny Joshi : Let’s do this thing. All the phone lines are flashing. I would like to take one by one our callers. But my request to the callers is not to deviate from today’s topic.
Rakesh Tiwari : We are not addressing the Kashmir's issue here. Vidhya Bhushan Dhar is a Kashmiri Pundit. He has his own views and ideas. He agrees with the boycotting which is taking place in Facebook and a same kind of boycott has taken place in Australia. Now let’s take the next caller.
Sunny Joshi : Yes, now let’s take some caller. Let’s see what the callers have to say about this issue, and please say your comments in brief and say it within 25 seconds, and if suppose your language is inappropriate to us, then, I am sorry I will be forced to disconnect the call.
Rakesh Tiwari : Yeah, yeah make your comments precise.
Sunny Joshi : Ji. Welcome to Apna radio. Sir please go ahead.
Sunny Joshi : Sir, please turn your radio off.
Caller-1 : [not clearly audible, so is disconnected]
Sunny Joshi : Let’s take the next caller. hello
Caller-2 : Hello.
Sunny Joshi : Hello, ji. Sir, please go ahead.
Caller-2 : Okay. I wanted to know if the Pakistani shows hire Indian artists?
Sunny Joshi : Let’s not go to a different issue altogether.
Rakesh Tiwari : Sunny, Sunny, Sunny!
Sunny Joshi : Whatever Midyear wants to say is that this is a Pandora’s Box. If this opens, then the whole debate goes on a different level altogether. The question is: Do you agree with the protest or are you with us where we think that only through talking to each other we will attain the peace treaty with Pakistan?
Rakesh Tiwari : Do you agree with this show? Do you want this show to air or not?
Caller-2 : I don’t want this show to air.
Rakesh Tiwari : Okay. fine.
Sunny Joshi : I'll take the next caller. Ji, welcome to Apna Radio.
Caller-3 : Hello.
Sunny Joshi : Hello, ji. Please go ahead.
Caller-3 : Namaste Joshi, ji.
Sunny Joshi : Namaste, ji. Please go-ahead sir.
Caller-3 : Sir, I feel the topic is getting deviated. We started off by talking about the show but...
Rakesh Tiwari : This is why we are keeping the actual topic of the show as our prime factor and we are not letting the talk get deviated.
Caller-3 : Yeah, this is what I am trying to tell you that a show must be run like a show. As the first caller, the Panditji with all due respect, his choice of words was unpleasant. He should have spoken in a proper and a polite way.
Rakesh Tiwari : Do you agree with the show or not?
Caller-3 : Let me finish my talk...
Rakesh Tiwari : We have to give a chance to everyone to come on air.
Caller-3 : Sir, sir, sir! From seventy years, recently, we celebrated Mr Muhammad Rafi's birthday. he has sung many bhajans too. If he had any hatred, then a great legend like Rafi would not sing any bhajans.
Sunny Joshi : Let’s not get into a different topic altogether.
Rakesh Tiwari : Muhammad Rafi Saab.
Caller-3 : This gentleman said that all this is going on from seventy years.
Sunny Joshi : This is that gentleman's opinion.
Rakesh Tiwari : This is his opinion. What is your opinion?
Caller-3 : In my opinion, this show must go on.
Rakesh Tiwari : Good very good. Thank you.
Vidhya Bhushan Dhar : Even I am saying the same.
Rakesh Tiwari : Apni baat rakhe. Ji, thank you.
Sunny Joshi : I'll take the next caller. Sir, welcome to Apna Radio.
Rakesh Tiwari : See to that the callers keep their questions precise and quick.
Caller-4 : Sunny, ji?
Sunny Joshi : Yes sir.
Caller-4 : First of all, Panditji is trying to spread hatred under the blanket of aman ki yatra [peace efforts]. According to me, this show must go on, and you will have my support for it, and I am ready to do anything for the show.
Rakesh Tiwari : Very good. Very good.
Sunny Joshi : I'll take the next caller. Welcome to Apna Radio.
Caller-5 : Sunny, ji. Whenever things happen outside Pakistan and India, we must leave it to the people, whether or not it is favourable for them. Those who do not want to go let them not go.
Sunny Joshi : Are you in favour of the show Sanjeevji?
Caller-5 : I am not in favour or -
Sunny Joshi : But you have to have an opinion. You are in favour or you are not in favour?
Caller-5 : I am in favour, because it is outside India and Pakistan.
Rakesh Tiwari : So, according to you the show must go on?
Sunny Joshi : Sanjeevji thinks the show must go on. [….] It’s time for a break now. Vidhya Bhushan Dharji who is a Kashmiri Pandit and Deepak Rajdhaan are protesting the concert of Sonu Nigam and Atif Aslam. They do not agree with the show. They are protesting it. Let it be quiet protest or sort of. We will be taking your calls and will know your opinion. Whereas me and Tiwariji think that for the sake of peace among the two countries, Atif and Sonu should do this concert, but again, Vidyadhar and Deepakji have their own perspective. Time for a short break, then we will comeback with the views of Deepak Rajdhan and then take your calls too.
Advertisement : [….]
Sunny Joshi : Let’s see who is calling us next. Welcome to Apna Radio.
Caller-6 : Hello.
Sunny Joshi : Hello, ji. Please go ahead.
Caller-6 : Sunny, ji. I would like to say two things as quickly as possible.
Sunny Joshi : Yeah.
Caller-6 : First of all, it is not necessary that whatever has happened in the last seventy years should repeat in the next coming years. It is possibility that there is a change in the people.
Rakesh Tiwari : Once there is peace everything will be fine. Okay, the next thing is not so clear sir.
Sunny Joshi : Thank you sir. Let’s take the other caller. Welcome to Apna Radio.
Caller-7 : Namaste, ji.
Sunny Joshi : Namaste. please go-ahead sir.
Caller-7 : First of all, I would like to wish Mr. Tiwari's son on his birthday.
Rakesh Tiwari : Thank you sir.
Caller-7 : I will support all the causes which upheld the peace.
Sunny Joshi : So, you will support it?
Caller-7 : Yes. I have to make one make small comment from Indian Army, if you permit me. Rakesh Tiwari and Sunny Joshi: Please go-ahead sir.
Caller-7 : If we can play cricket matches, do concerts together, sing gazals. then why should we fight with them? It’s not that we have a personal enmity with them, even we can organise for concerts and gazals and even play cricket.
Sunny Joshi : Thank you, you do completely agree with us. Vidhya Dharji and Deepakji, I would like to ask you both a question why have bought up this protest against this concert as Sanjeevji and other of our caller had asked you, why bring it here as it will be a South Asian thing?
Rakesh Tiwari : It shows that almost everyone is in support of the radio program.
Deepak Rajdan : Thank you Sunnyji and Tiwariji for having us on the show. I would like to say that we live in a free country and every man has the right to protest. It’s not that we are against peace, but it’s not that only a particular group, organisation, person has taken up the responsibility of spreading peace, it should happen in both ways. Having said that, you asked me why should there be a protest here? We want to protest here. as this is a free country. We can protest here.
Rakesh Tiwari : You can protest, but what is your logic for staging a protest? As Sunnyji has been addressing it from a long time that over here Pakistanis and Indians are living in peace and harmony, they do not have any problem among them, and if Sonu and Atif want to have a concert here, there must not be any problem. If you want to oppose it, you can do so, but people over here want to say that the fight between India and Pakistan is in their country. Let it be there. It’s not necessary to get that hatred and fight to this country. What do you have to say about it?
Deepak Rajdan : We have no issue with the Pakistani brothers. We are opposing this concert, as we want to spread the message to everybody that this is not right.
Rakesh Tiwari : As far as I am understanding. you are thinking that if back there in India and Pakistan they are fighting and killing each other, it’s not good to have a peace concert here.
Sunny Joshi : But trade links are good.
Rakesh Tiwari : Are you proposing the example of Nero's flute and Rome?
Deepak Rajdan : As Sunnyji said, we are doing business with them, but whenever India puts it one foot forward toward peace, Pakistan always messes it up. Now recently, I read an article wherein Mr. Musharaf has quoted that during the Kargil war, he had two sleepless nights wherein he was thinking if he had to do a nuclear attack against India.
Rakesh Tiwari : Okay, how does this make Sonu and Atif the culprits? They have not done something wrong to be opposed?
Sunny Joshi : We will take some callers now.
Rakesh Tiwari : Ji, ji. Let’s take some callers.
Sunny Joshi : Deepakji, let’s take some caller, as public's opinion does matter a lot. Yeah let’s take the next caller.
Caller-8 : Hello.
Sunny Joshi : Welcome to Apna Radio.
Caller-8 : Thank you. Sunny ji. I would like to say that let them do their work, as it is their business, and I am understanding what Panditji is also trying to say that the Pandits in Kashmir are suffering.
Rakesh Tiwari : You mean the Pandits in Kashmir have been facing problems for a very long time, but their voice has not been heard or even addressed, and here they are having concerts for peace?
Caller-8 : No, what I want to say is that don’t involve Sonu and Atif in this. As anybody could have come to this concert and sung a song for us, don’t involve Sonu and Atif in middle of all this. Yeah. People from both the nationality are going to address this concert, you can tell them your issue rather than stopping the concert.
Rakesh Tiwari and Sunny Joshi : Vidhya Dharji wants to say something on this. Please go-ahead sir.
Vidhya Bhushan Dhar : Poonamji and Sanjeevji. I would like to answer your question of why we are bringing this issue here. If India is my birthland, then Canada is my karam bhoomi (a place one earns or works). If I have to raise this issue, I would not go to India, as we all work here. All I want to say is, even if our soldiers die, as their duty is to duty for their country, everyday our soldiers are dying, the pilgrims of aman ki yatra [peace efforts] are being attacked, how can we share one platform with such a country? It’s not that this protest is taking place for the first time. It's happened before in Australia, in India also they keep opposing this again and again. I personally have no issue with Pakistanis, one of my Rakhi sister is a Pakistani, and I am proud of it. We want to reach the higher authorities about this issue through this protest.
Rakesh Tiwari : Are you trying to say that Sonu and Atif have to condemn these fighting, in the concert?
Vidhya Bhushan Dhar : Absolutely. Just answer one question, have any Pakistani artists ever condemned the terror attacks? No, they have not. In fact, after going back they say something different. You can see that so many Pakistani artists have got an opportunity to work with India, and after they go back to their country, they have a negative picture about India. These are the things which basically create the rift.
Sunny Joshi : [….] Let’s take brief break, and I will try to air all your calls.
Advertisement : [….]
Sunny Joshi : It’s Sunny Joshi here. This is a never-ending topic. Tiwariji, I think we would need extra time for the discussion, but I couldn’t air all the callers, because of time shortage, but I would like to put up a conclusion from Vidhya Bhushan Dhar, before we wrap up the show.
Vidhya Bhushan Dhar : We all want peace. Both in India and Pakistan, people do love to live in peace, but there are some social elements, people who do not want peace. This protest is just the result that such elements, people do not want the two artists to be performing on the same platform.
Sunny Joshi : Okay sir, Thanks a lot.
[…Advertisement]
Sunny Joshi : Here we would like to take our leave. Goodnight. And have a great evening.
Rakesh Tiwari : Good night friends.
[20] It may be noted that during the broadcast, there was no mention of DEI Films by name and no identification of the promoters of the concert. DEI Films believes that these references have been deleted from the transcript. Apart from that alleged delegation, DEI Films does not dispute the accuracy of the translation, and indeed DEI Films relies on the transcript to make its argument that the broadcast published defamatory statements.
[21] DEI Films asserts that both CMR 101.3 and Mr. Tiwari are liable for defamation. Mr. Panesar believes that Mr. Tiwari deliberately invited Vidhya Bhushan Dhar and Deepak Rajdan as an act of revenge for his decision not to allow DEI Films to advertise on Mr. Tiwari’s program. Mr. Panesar believes that, notwithstanding that Mr. Tiwari and Mr. Joshi expressly supported attendance at the concert and opposed the boycott, they deliberately invited Vidhya Bhushan Dhar and Deepak Rajdan knowing that their comments would create fear and discourage attendance at the concert. Mr. Panesar believes that Messrs. Dhar’s and Rajdan’s references to the wars between Pakistan and India, the deaths of soldiers, nuclear bomb threats, and terrorist incidents were exaggerated and false statements and amounted to hate speech and racially discriminatory propaganda that would discourage attendance at the concert. Mr. Panesar alleges that Mr. Tiwari made statements to incite hatred and violence between India and Pakistan. Mr. Panesar believes that the statements made during the broadcast were a thinly-veiled personal attack and that Mr. Tiwari planned and executed a scheme to harm DEI Films. Mr. Panesar believes that the hate speech of the broadcast explains why the sale of tickets was so poor.
[22] It may be noted that the transcript of the broadcast reveals that Mr. Joshi and Mr. Tiwari opposed any boycott of the concert and expressed the view that the concert promoted peace and harmony. There were no threats or calls for violence. Whether or not they were identified, no disparaging or derogatory statements were made about the promoters of the concert. Six callers to the radio program supported attendance at the concert. Two callers supported a boycott, but they were cut off and given little air time.
[23] DEI Films disputes that the statements made during the broadcast were matters of public interest. DEI Films asserts that the statements did not relate to any substantial or legitimate concerns of the Canadian public and did not affect the welfare of Canadians. DEI Films submitted that the concert was not a matter inviting public attention or about which the public has some substantial concern or interest.
[24] The Klose to You 2017 Concert took place on August 5, 2017. There is no evidence that before the concert there were any protests or demonstrations against the concert. The concert failed to cover expenses and there was a loss of approximately $133,000. DEI had hoped to have a profit of approximately $925,000. DEI alleges that it lost vendors, investors, and trust within the business community due to failure of the concert.
[25] Mr. Antony of CMR 101.3 did not know about the concert and DEI Films grievances until he received letters from DEI Films’ lawyer on dated August 24, 2017 and October 16, 2017.
[26] On October 31, 2017, DEI Films commenced its defamation action against CMR 101.3 and Mr. Tiwari.
[27] On March 13, 2018, CMR 101.3 delivered its Statement of Defence.
[28] On March 15, Mr. Tiwari delivered its Statement of Defence.
D. Discussion
1. Defamation
[29] The elements of a claim of defamation are: (1) the defendant makes a statement; (2) the words of the statement are defamatory, i.e., the words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (3) the statement is referable to the plaintiff; and (4) the statement is published. The plaintiff must show the main thrust or “defamatory sting” of the words expressed by the defendant in the context in which those words were expressed would, from both their plain meaning and from what the ordinary, reasonable person would infer from them, tend to lower the plaintiff’s reputation in the eyes of a reasonable person. General damages are presumed from the publication of the defamation and need not be established by proof of actual loss. The general damages compensate the plaintiff for loss of reputation and injury to the plaintiff’s feelings, and to vindicate the plaintiff.
[30] It is a complete defence to a defamation action, known as justification, if the defamatory imputation is true or substantially true. Pursuant to section 22 of the Libel and Slander Act, the defence of justification will not fail by reason only that the truth of every allegation of fact is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.
[31] Some communications are protected by qualified privilege, which is defined as an occasion where the person who makes a communication has an interest or duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it.
[32] Fair comment is another defence to a defamation claim. The elements of the defence are: (1) the comment is on a matter of public interest; (2) the comment is based on fact; (3) the comment, though it can include inferences of fact, is recognizable as comment; and (4) objectively, any person could honestly express that opinion on the proved facts. The defence, however, can be defeated if the defendant was actuated by express malice. Words that appear to be statements of fact may, in pith and substance, be properly construed as comment, particularly in an editorial context where loose, figurative, or hyperbolic language is used in the context of political debate, commentary, media campaigns and public discourse. Pursuant to section 23 of the Libel and Slander Act, in a defamation action for words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment, having regard to such of the facts alleged or referred to in the words complained of as are proved. The defence of fair comment will be unsuccessful if the plaintiff proves that the defendant was motivated by malice, which is to be assessed objectively.
[33] Another defence to defamation is the defence of “responsible communication” which has two essential elements; namely: (1) the publication is a matter of public interest; and (2) the defendant shows that he or she was diligent in trying to verify the allegations in the publication having regard to all the relevant circumstances. In determining whether a defamatory communication made on a matter of public interest was responsibly made, the court may consider (a) the seriousness of the allegation, (b) the public importance of the matter, (c) the urgency of the matter, (d) the status and reliability of the source, (e) whether the plaintiff’s side of the story was sought and accurately reported, (f) whether the inclusion of the defamatory statement was justifiable, (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (reportage), and (h) any other relevant circumstances.
2. Anti-SLAPP Motions
[34] Sections 137.1 to 137.5 of the Courts of Justice Act are Ontario’s version of an anti-SLAPP statute, where “SLAPP” refers to “Strategic Lawsuit Against Public Participation.” The anti-SLAPP provisions are designed to discourage the use of litigation as a means of unduly limiting expression on matters of public interest. Under the anti-SLAPP statute, a defendant or respondent may bring a motion to have a proceeding dismissed, if he or she satisfies the court that the proceeding arises from an expression made by the defendant or respondent that relates to a matter of public interest.
[35] The purpose of the anti-SLAPP provisions of the Courts of Justice Act are: (a) to encourage individuals to express themselves on matters of public interest; (b) to promote broad participation in debates on matters of public interest; (c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and (d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. The anti-SLAPP provisions of the Courts of Justice Act are a preliminary merits-review that dispenses with the need for an inquiry into the subjective intention of the plaintiff.
[36] Under the anti-SLAPP provisions, expression means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.
[37] Subject to certain limitations and exclusions, discussed below, the anti-SLAPP provisions provide that on motion by a person against whom a proceeding is brought, a judge shall dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. On a motion under the anti-SLAPP provisions, the moving party bears the initial onus of satisfying the court that the other party’s proceeding arises from an expression made by the moving party that relates to a matter of public interest.
[38] The anti-SLAPP provisions do not define what is a matter of public interest, but case law indicates that it is a broad concept and that a matter of public interest involves matters in which the public has some substantial concern beyond curiosity or prurient interest, and a matter of public interest affects the welfare of citizens or concerns an issue of public controversy or concerns an issue about which citizens have a right to make fair comment.
[39] In McLaughlin v. Maynard, 2017 ONSC 6820, allegedly defamatory comments about the acts or omissions of a mayor and a municipal council member in the discharge of their public duties were held to be expressions relating to matters of public interest. In Niagara Peninsula Conservation Authority v. Smith, 2017 ONSC 6973, comments about the governance of a conservation authority that was also a registered charity were held to be expressions relating to matters of public interest. In Moraine United Soils Management Ltd. v. Barclay, 2018 ONSC 1372, the environmental implications of expanded dumping rights in an environmental protection area was a matter of public interest. In McQueen v. Reid, 2018 ONSC 1662, an article about the management of the Toronto Port Authority that was alleged to have tarnished the reputation of the chair of the authority was found to be a matter of public interest. In Dermamed Inc. v. Sulaiman, 2018 ONSC 2517, an Internet review of a cosmetic treatment using lasers that was offered to the consumers was considered to be a matter in the public interest and a defamation action was dismissed because the plaintiff was unable to prove that the defendant did not have a defence.
[40] In Rizvee v. Newman, 2017 ONSC 4024, the defendant’s defamatory social media postings about the character and suitability for election of a candidate for election to Parliament were held to be expressions relating to matters of public interest. Justice Fitzpatrick stated at para. 64 that: “While there is no static list of topics which qualify as matters of public interest, politics is the classic example of such a topic.” At para. 122, he added:
- It is an obvious statement that free speech is one of the fundamental underpinnings to any democratic, open and tolerant society. The right to offer commentary free from fear of litigation is especially critical to our election process. How are citizens to make an informed, independent and objective selection of who should lead us without the exchange of ideas, critical or otherwise? The public has a strong interest in its citizens exchanging ideas respecting the merits of a candidate for public office. ….
[41] The anti-SLAPP provisions of the Courts of Justice Act do not protect hate speech. Hate speech is by its nature not in the public interest and hate speech interferes with public discourse and debate. The anti-SLAPP provisions of the Courts of Justice Act, do not create a “safe space” for defamation because the subject matter is one of public interest and hateful or malicious attempts to inflict harm under the guise of free debate of matters of public interest are not protected from suit by the legislation.
[42] If the moving party meets the onus of showing a communication on a matter of public interest, under the anti-SLAPP provisions, the onus of proof shifts to the other party, and his or her proceeding will be dismissed, unless he or she shows that: (1) his or her proceeding has substantial merit; (2) the moving party has no valid defence in the proceeding; and (3) the harm likely to be or have been suffered by the other party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. The responding party must satisfy all three requirements in order to successfully defeat the motion.
[43] The legislative intent of the anti-SLAPP provisions is to introduce a preliminary merits review that dispenses with the need for an inquiry into the subjective intention of a plaintiff and is a fast track process for summary dismissal of the action.
[44] The authorities hold that anti-SLAPP provisions do not capture and dismiss claims simply because their subject matter is one of public interest, but rather scrutinizes such claims and imposes a burden on the plaintiff to show more than that his or her claim is not frivolous or vexatious, and rather the plaintiff must show there are reasonable grounds to believe that his or her proceeding has substantial merit and that the defendant has no valid defence to the proceeding.
[45] Some courts have held that the burden of proof under section 137.1 of the Courts of Justice Act is the civil standard of proof on the balance of probabilities, but other courts have held that the standard of proof is below the civil standard and the responding party to an anti-SLAPP motion bears the burden of establishing on objective evidence compelling and credible grounds that his or her claim has substantial merit and that there is no valid defence to it.
E. Discussion and Analysis
[46] There is no dispute that the broadcast was an expression, and, in my opinion, Mr. Tiwari and CMR 101.3 have established that the communication was a matter of public interest.
[47] The state of the relationship between India and Pakistan, be it a state of peace or be it a state of warfare, is not a matter of curiosity and prurient interest; it is a matter that rises to the level of world security. From time to time, the relationship between India and Pakistan is controversial. The general issue of whether entertainers from countries formerly at war with one another should not perform together because it would show disrespect for the casualties of the former conflict is an issue worthy of comment and debate and is an aspect of the profound topic of how to achieve both truth and reconciliation between former antagonists.
[48] Even assuming that the broadcast identified DEI and its principals and investors, there is no merit to DEI Films’ argument that the broadcast was a disguised personal attack on them. It is a stretch into the impossible to find that a reasonable person would infer that the broadcast on CMR 101.3 was not a genuine commentary on a matter of public interest but a disguised personal attack on DEI Films and its principals and investors.
[49] Mr. Tiwari and CMR 101.3 have met the onus of showing a communication on a matter of public interest. The onus then shifts to DEI Films to show all of that: (1) its action has substantial merit; (2) Mr. Tiwari and CMR 101.3 have no valid defence; and (3) the harm likely to be or have been suffered by the DEI Films is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
[50] In my opinion, DEI Films fails on all accounts; namely: (1) DEI Films’ action does not have substantial merit; (2) Mr. Tiwari and CMR 101.3 have the defences that there was no defamatory statement, justification, and fair comment; and (3) the harm suffered by DEI Films that can be connected to even assuming a defamatory statement is not sufficiently serious that the public interest weighs in favour of allowing the action to proceed.
[51] This is not a close call. There was nothing said expressly or said by innuendo that was defamatory, and there is no evidence that a broadcast less than three days had any effect on DEI Film’s ticket sales. Any suggestion that CMR 101.3, whose principal was unaware of the concert until after the event, was motivated by malice is absurd. And any suggestion that Mr. Tiwari was motivated by malice is silly and contrary to the facts that establish that Mr. Tiwari was unaware of Mr. Panesar’s animus toward him and that Mr. Tiwari was supportive of the concert going forward. The notion of a conspiracy to injure DEI Films by a broadcast of a matter of obvious public interest is not supportable and this idea is just a feeble and failed effort to find a scapegoat for the poor attendance at the concert. There was no defamatory statement, and indeed the Defendants might well have succeeded on a motion under Rule 21 that there was no reasonable cause of action pleaded. Even assuming a defamatory statement, it is not serious enough to justify allowing the action to proceed.
F. Conclusion
[52] For the above reasons, Mr. Tiwari’s and CMR 101.3’s motions are granted and DEI Films’ action is dismissed.
[53] Neither Mr. Tiwari nor CMR 101.3 are claiming damages. The only outstanding matter is costs. If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Mr. Tiwari’s and CMR 101.3’s submissions within twenty days of the release of these Reason for Decision followed by DEI Film’s submissions within a further twenty days. There shall be no reply submissions.
Perell, J.
Released: July 19, 2018