Court File and Parties

COURT FILE NO.: CV-19-79414 DATE: 30/03/2020

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHELE DI FRANCO Plaintiff/Responding Party – and – MICHAEL BUECKERT Defendant/Moving Party

Counsel: Jean-François Lalonde and Victoria Lamontagne for Plaintiff/Responding Party Yavar Hameed and Daniel Tucker-Simmons for Defendant/Moving Party

HEARD: December 18, 2019

DECISION ON ANTI-SLAPP MOTION

JUSTICE SALLY GOMERY

[1] Michael Bueckert asks this court to dismiss the defamation action against him by Michele Di Franco, based on s. 137.1 of the Courts of Justice Act. This provision allows a court to dismiss a lawsuit if it unduly limits debate on a matter of public interest. As part of his response to the s. 137.1 motion, Mr. Di Franco moves to strike Mr. Bueckert’s affidavit. For the reasons that follow, I am dismissing both motions.

Context

[2] Between January 2 and February 23, 2019, Mr. Bueckert, a graduate student at Carleton University, posted a series of tweets criticizing the current Ontario provincial government’s education policies. In August 2018, the government required colleges and universities to adopt prescribed policies to protect free speech on campus. In January 2019, it announced that post-secondary students would be allowed to opt out of paying fees relating to student associations and other ancillary fees. This was known as the “Student Choice Initiative”.

[3] Mr. Di Franco was then an undergraduate student at the University of Ottawa and Vice-President of a student club called UOttawa Students for Free Speech. In August 2018, prior to announcing his government’s education policies, Premier Doug Ford had met with Mr. Di Franco and other students, as part of a consultation process. A photo was taken of their meeting.

[4] In his tweets in early 2019, Mr. Bueckert referred to Mr. Di Franco, directly and indirectly. He said that the government was “taking its cues from alt-right bros, lobster fanboys & Men’s rights Activists” and “free speech assholes”; had forced universities “to provide a safe space for Nazis and bigots”; and was motivated by “extremist al-right policies” and an “alt-right fringe”. He attached the photo of Mr. Di Franco’s August 2018 meeting with Premier Ford to some of these tweets. On February 6, 2019, Mr. Bueckert tweeted: “White Supremacists and MAGA chuds are cheering”. He again attached the photo of Mr. Di Franco with Premier Ford, with the caption: “Did Doug Ford consult any students for his “For the Students” plan? Yes – but only the alt-right ones”.

[5] Mr. Bueckert has over 4000 followers on Twitter, some of whom “liked” his tweets about Mr. Di Franco. The messages were also visible to anyone who accessed Mr. Bueckert’s Twitter account.

[6] During this same period, Mr. Bueckert wrote an article for the website Medium.com, and was interviewed for a podcast. In the article, he stated that Mr. Di Franco had boasted about his club’s role in the creation of the Student Choice Initiative. He wrote that such groups had been formed “to defend the presence of hateful and bigoted views on campus”, such as transphobic conspiracy theories and ethno-nationalism, and “often appear to have alt-right ideological tendencies themselves”. In the podcast, Mr. Bueckert criticized Mr. Di Franco’s decision to be interviewed by Gavin McInnes, to whom he attributed an anti-Semitic video, and added that Mr. Di Franco was not an elected student leader, but “some random alt-right bro”.

[7] On February 26, 2019, Mr. Di Franco sued Mr. Bueckert for defamation. He claims general damages of $100,000, punitive and aggravated damages of $50,000, a retraction, and orders requiring the removal of the posts. He alleges that they stated or implied that he was an alt-right extremist, racist, transphobic and anti-feminist. Mr. Di Franco states that he is now attending law school, and that Mr. Bueckert’s online messages about him affect his employment prospects and, more generally, his reputation. He claims that the tweets amounted to a malicious campaign against him, compounded by Mr. Bueckert’s decision, on February 22, 2019, to post a copy of a cease and desist letter from Mr. Di Franco’s lawyer on his Twitter and Facebook pages.

[8] In his statement of defence, Mr. Bueckert denies that his statements were defamatory. He specifically denies that calling someone “alt-right” is defamatory, because this term does not have one universally accepted meaning. In the alternative, Mr. Bueckert contends that the statements constitute fair comment or were justified as true statements of fact. He alleges that Mr. Di Franco has made many comments on-line endorsing far right-wing ideologies and, in one instance, joking about the Holocaust. He denies any malice.

[9] Mr Bueckert says that, if Mr. Di Franco has suffered any damages to his reputation, they are nominal. Finally, he alleges that the impugned publications are “broadcasts” as defined in the Libel and Slander Act, and that he was not properly served with notice under s. 5 of the Act.

The test under section 137.1

[10] Section 137.1 was enacted in 2015. It allows a defendant to ask the court to dismiss a lawsuit on the basis that it unduly limits debate of matters that are in the public interest. A lawsuit that is calculated to eliminate or limit legitimate criticism of issues of public interest is sometimes referred to as a Strategic Lawsuit Against Public Participation or SLAPP. A motion under s. 137.1 is therefore sometimes referred to as an anti-SLAPP motion. The provision states that it aims to encourage individuals and the public at large to engage in such debate, without fear that they might be sued, and to discourage the use of litigation as a means of unduly limiting expression on matters of public interest.

[11] Argument on an anti-SLAPP motion proceeds in two stages.

[12] The defendant making the motion must first persuade the judge that the lawsuit “arises from an expression made by the person that relates to a matter of public interest”; s. 137.1(3). If the defendant cannot meet this threshold, then the motion must be dismissed.

[13] If the defendant meets this threshold, the analysis moves to the second stage. The onus shifts to the plaintiff, the responding party on the anti-SLAPP motion, to persuade the motion judge that there are grounds to conclude that:

(i) the lawsuit has substantial merit;

(ii) the defendant has no valid defence; and

(iii) the harm likely to be or which has been suffered by the plaintiff as a result of the defendant’s expression “is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression”; s. 137.1(4).

[14] All three parts of this test must be met for the plaintiff to be permitted to proceed with the lawsuit. If the plaintiff cannot meet the onus on the first two parts of this test (those that assess the basic plausibility of the claim and the defence), then there is no need for the court to balance the competing interests on the third part of the test. If the motion judge considers that the harm that has been or that is likely to be suffered by the plaintiff as a result of the defendant’s impugned expression is trivial, or clearly outweighed by the public interest in protecting that expression, the judge does not need to spend time considering the potential merits of the claim or the validity of any defence asserted.

[15] Section 137.1 therefore creates a powerful mechanism for weeding out lawsuits that have minimal merit or no merit at all, and if allowed to proceed will discourage or restrict free and open expression on matters of public interest. It “aims to remove from the litigation stream at an early stage those cases, which under the criteria set out in the section, should not proceed to trial for a determination on the merits”. 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, at para. 73.

[16] If the motion judge decides, on the record before her, that a court could reasonably find in favour of the plaintiff on the merits, and that the harm allowing the defendant’s actions to go unchecked or unpunished outweighs the need to protect debate on topics of public interest, the plaintiff has met the onus under s. 137.1(4)(a), and the claim will not be dismissed.

[17] I will expand further on the legal test for each part of the test on an anti-SLAPP motion as I address the parties’ arguments.

Should some or all of Mr. Bueckert’s affidavit be struck?

[18] As a preliminary matter, I must deal with Mr. Di Franco’s motion to strike some or all of Mr. Bueckert’s May 17, 2019 affidavit affirmed in support of his motion. He contends that the affidavit is scandalous, frivolous and vexatious, and so should be struck pursuant to r. 25.11 of the Rules of Civil Procedure.

[19] Mr. Di Franco asked me to rule on his motion prior to hearing submissions on the anti-SLAPP motion. I declined to do so. The general rule is that preliminary motions to strike affidavits should be discouraged and only granted for special reasons. Allianz Global Risks US Insurance Co. v. Canada (Attorney General), 2016 ONSC 29, at para. 26. Mr. Bueckert’s affidavit was not so obviously inappropriate that it should be struck before I could hear argument on the merits of the motion for which it was produced. Deciding the motion to strike on a preliminary basis would furthermore not result in any efficiencies or cost savings, since Mr. Di Franco responded to Mr. Bueckert’s affidavit months ago and cross-examined him on it.

[20] Having now had the opportunity to consider the affidavit at greater length, as well as the parties’ arguments, I am dismissing Mr. Di Franco’s motion to strike. The issues that he has raised go to the weight to be given to Mr. Bueckert’s evidence, not to its admissibility.

[21] Mr. Di Franco argues that numerous paragraphs in Mr. Bueckert’s affidavit should be struck for various reasons. The way in which he has presented his submissions is not helpful. He did not submit a factum on the motion. His notice of motion does not state the precise grounds on which he seeks to strike various paragraphs. It also does not identify which paragraphs, in his submission, offend each ground he relies upon. Mr. Di Franco has instead simply reproduced the affidavit in his motion record and, under each paragraph he seeks to challenge, inserted text boxes setting out lengthy reasons why he contends that some or all of the statements in them are offensive. Since Mr. Bueckert’s affidavit is 94 paragraphs long, and Mr. Di Franco raises the same grounds to challenge many of them supported by exactly the same arguments, the record is confusing and repetitive.

[22] Given the impracticality of dealing with each of the paragraphs one by one, I will instead address each of the recurrent submissions in Mr. Di Franco’s motion.

The affidavit contains impermissible opinion evidence

[23] Mr. Di Franco argues that Mr. Bueckert’s affidavit contains impermissible opinion evidence.

[24] As a general rule, affidavits are limited to statements of fact within the personal knowledge of the deponent; r. 4.06(2). An affidavit prepared for use on a motion may, however, “contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit”; r. 39.01(4).

[25] Mr. Bueckert identifies the general sources of his information and belief at paragraphs 2 and 3 of his affidavit. Throughout his affidavit, he cites academic texts, media reports, website and other sources of information. I find that, as a result, he has satisfied the requirements of r. 39.01(4).

[26] I do not agree that Mr. Bueckert has failed to identify which of his statements are opinion and which are fact. It is self-evident that most of the affidavit consists of his views on Mr. Di Franco’s political philosophy, based on Mr. Di Franco’s association with or commentary on the views of political commentators and polemicists. Mr. Bueckert sets out his understanding of the term “alt-right” at paragraphs 23 to 31. This is followed by a long section entitled “Why I believe Michele Di Franco’s Politics Qualify as Alt-Right”. No one reading this could reasonably mistake it for anything other than opinion, since that is explicitly how it is framed.

[27] I furthermore consider this evidence to be helpful, up to a point. Mr. Bueckert’s opinions about Mr. Di Franco’s political views are relevant to the assessment of the viability of his defence. They speak to whether a person could reasonably express the opinions that he expressed about Mr. Di Franco’s political views and whether Mr. Bueckert was motivated by malice. In my view, Mr. Bueckert’s affidavit provides material beyond what I should consider in the context of anti-SLAPP motion, where I am not making a final determination on the merits of the lawsuit. This does not however make the affidavit as a whole inadmissible.

[28] Mr. Di Franco also points out that Mr. Bueckert is not qualified as an expert. In his argument on the motion, Mr. Bueckert acknowledged that he was relying on some of the opinions set out in his affidavit for their truth. He argued that he is effectively a participant expert, based on his academic qualifications.

[29] Mr. Bueckert cannot be qualified as an independent expert in this matter. Regardless of his academic qualifications or experience in the political sphere, or the care he has taken in assembling material in support of his assertions, he obviously lacks the independence and objectivity required for the court to accept his opinion as an expert. He is an advocate, not a neutral observer.

[30] On the other hand, it is not my role, on an anti-SLAPP motion, to make final determinations on the merits of this litigation. As already mentioned, Mr. Bueckert’s evidence with respect to the basis for his beliefs is relevant to the second stage of the analysis I must make on a s. 137.1 motion. The inclusion of this opinion evidence is therefore not improper.

The affidavit impermissibly refers to materials not produced

[31] Mr. Bueckert’s affidavit refers to some websites and online resources, as well as to some academic texts, without attaching a hardcopy of everything referred to. Mr. Di Franco argues that offends both the rules of civil procedure and caselaw on what a non-expert may rely on in an affidavit.

[32] R. 4.06(3) requires that an exhibit referred to in an affidavit must either be attached to the affidavit or shown to the deponent and filed in the court record. Where the exhibit is a document, a copy shall be served on other parties unless it is impractical to do so.

[33] In my view, r. 4.06(3) does not inflexibly require reproduction of every source of information mentioned by an affiant, so long as the information is publicly available. If an affiant mentions that someone has a website and provides its address or url but does not reproduce a printout of the pages in question, it does not seem to me that this offends the letter or spirit of the rule. Not producing any evidence of the contents of the website may well affect the weight to be given to the deponent’s assertions about it. This failure does not however make the allegations about the website inadmissible.

[34] Mr. Di Franco cites 9646035 Canada Ltd. v. Hill, 2017 ONSC 5453 for the proposition that academic sources cited by Mr. Bueckert are inadmissible. In this decision, Justice R. J. Harper held that, since the affiant had not been qualified as an expert, her reference to a dissertation by a Ph.D. candidate could only be used to show that she believed the version of events set out in the dissertation were true. This is the same conclusion I have reached with respect to Mr. Bueckert’s references to outside sources. This shortcoming goes to weight, not admissibility.

The affidavit contains speculative statements

[35] Mr. Di Franco argues that Mr. Bueckert engages in impermissible speculation as to his beliefs and motivations, and the beliefs and motivations of others.

[36] An affiant may ask the court to draw inferences based on the information presented. Some of Mr. Bueckert’s opinions about the political philosophies of various commentators are inferences based on comments these individuals have made on-line. To take just one of many examples, at paragraph 38, Mr. Bueckert states that Gavin McInnes, a political commentator, has made statements “indicative of Islamophobic sentiment”. In support of this assertion, he reproduces remarks made by McInnes about Muslims which can only be qualified as deeply racist. I accordingly conclude that Mr. Bueckert’s assertion about McInnes’ views, in this instance, is not speculative.

[37] Mr. Di Franco vehemently objects to Mr. Bueckert’s statements in his affidavit about Mr. Di Franco’s political views, based on his online history, his tweets, and his online interactions with commentators such as McInnes. He denies that he has any offensive views and again accuses Mr. Bueckert of speculation.

[38] As already stated, there is nothing preventing Mr. Bueckert from asking the court to accept inferences based on information he presents. This is admissible evidence. I do not find that the assertions in his affidavit about Mr. Di Franco’s political views are unduly speculative.

The affidavit contains inflammatory, frivolous and vexatious statements

[39] Mr. Bueckert’s affidavit refers to hateful comments made online by various commentators. He refers to material that is, for example, blatantly anti-Semitic. If this were irrelevant to the issues to be considered on the anti-SLAPP motion and the lawsuit in general, these references would be gratuitous and inflammatory. As has been observed, however, “nothing can be scandalous which is relevant”. McNabb v. Ontario (Attorney General), [2000] O.J. No. 3248, 50 O.R. (3) 402, at para. 10, citing Re Enrico homes Ltd. (1977), 3 C.P.C. 227 (Ont. Master). Because these references go to a good faith belief about Mr. Di Franco’s political views and an absence of malice on the part of Mr. Bueckert, they are relevant.

Stage 1: Has Mr. Bueckert shown that the lawsuit arises from an expression that relates to a matter of public interest?

[40] Mr. Di Franco concedes that Mr. Bueckert’s tweets, the interview and podcast, all relate to a matter of public interest, that is, the provincial government’s educational policies. I will return to the importance of the issues in debate in the last stage of this analysis.

Stage 2(i): Has Mr. Di Franco shown that the lawsuit has substantial merit?

[41] In my view, a court could reasonably conclude, on a summary judgment motion or at trial, that some or all of Mr. Bueckert’s communications about Mr. Di Franco were defamatory. Mr. Di Franco has therefore satisfied this part of the test.

[42] In order to establish that the defendant is liable for defamation, a plaintiff must prove that:

(1) The words at issue would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

(2) The words in fact referred to the plaintiff; and

(3) The words were published, meaning that they were communicated to at least one other person than the plaintiff. Grant v. Torstar Corp., 2009 SCC 61, at para. 28.

[43] Mr. Bueckert contends that some of his statements were clearly not aimed at Mr. Di Franco, and that the remaining statements were not defamatory.

[44] Mr. Bueckert presents the following examples of tweets which he says were not directed towards Mr. Di Franco:

• A tweet on January 17, 2019 that said: “Never forget that before @fordnation killed democratic student representation on campus, he first intervened to force universities to provide a safe space for Nazis and bigots. These are connected.”
• A tweet on February 6, 2019, that said: “Its [sic] okay because when @cusaonline & @CharlatanLive & @CKCUFM close down and vacate their offices, there will be more room for the lectures by the neo-Nazis and race IQ scientists who universities are now not allowed to turn away, thanks to Ford’s beautiful racist brain.”
• Another tweet on February 6, 2019, that said: “White supremacists and MAGA Chuds are cheering.” This message was reproduced above the photo of Premier Ford meeting with Mr. Di Franco and other students.

[45] The statements in these tweets must be viewed in context. These messages were part of a series of sixteen tweets posted by Mr. Bueckert between January 2 and February 6, 2019. They each repeated the same or similar messages. A follower might not see all of these messages at any given time when they used Twitter, but a court could reasonably find that a person reading them day after day would understand that the tweets were connected. On January 27, Mr. Bueckert described his message that day as “our daily reminder”.

[46] The central theme of the messages was that the provincial government enacted its education policies based on the views of a small group of students. This was explicit from the very first tweet on January 2, 2019, which stated:

“Who is @fordnation listening to on free speech? Not student unions, or elected student representatives, but an unofficial student club at #uOttawa who represents nobody, platforms anti-feminists & who spoke to fascist [sic].”

[47] This message was posted above the same group photograph showing Mr. Bueckert and a handful of other students meeting with Premier Ford and the education minister in August 2018.

[48] Other messages in the series include the following:

• A tweet on January 17, 2019 in which Mr. Bueckert stated that the government was “taking its cues from alt-right bros, lobster fanboys & Men’s Rights Activists”.
• A tweet on January 19, 2019 that mentioned a podcast created by Mr. Di Franco, in which he discussed “the extremist alt-right policies motivating this government”.
• A second tweet later that same day, that stated that the government’s education agenda “has been driven by an alt-right fringe”.
• A tweet on January 24, 2019 that stated that the provincial government had killed funding for various student groups, for sexual violence prevention and for campus food banks “just because a handful of extremist alt-right dudes told them to!”. This was posted with the group photo including Mr. Di Franco.
• A tweet on February 5, 2019, again posted with the photo, saying that Mr. Bueckert’s student health insurance was being eliminated “just to please a handful of alt-right MAGA chuds”.

[49] Mr. Bueckert argues that, taken in context, the three messages he singles out were reasonably understood to mean that the Ford government’s policies would require universities to give a platform to people with extreme, right wing views, and that such people would accordingly support such policies. He contends that nothing in these particular messages could reasonably suggest that Mr. Di Franco himself holds such views. He points out that no one in the group photo posted with some of the messages is cheering, and so says that a reasonable person reading the second February 6th tweet would not think that he was implying that Mr. Di Franco was a white supremacist. He also notes that he never mentioned Mr. Di Franco by name in these tweets.

[50] In my view, a judge hearing the merits of this case could reasonably reject this argument. Even though no one in the group photo is cheering, a court could reasonably infer that, in the view of the average reader, those pictured with the premier – whom Mr. Bueckert accused of being racist – were to be understood to share his views, and the views of the “Nazis”, “neo-Nazis”, “bigots”, “race IQ scientists”, “white supremacists” and “MAGA chuds” for whose benefit the government policies were allegedly enacted. The placement of the group photo next to these words could support this conclusion.

[51] A court could likewise reasonably infer that the messages were directed against Mr. Di Franco because they were part of a series of messages, most of which more directly targeted him. The omission of his name in the tweets does not lessen their defamatory impact, because his picture appears next to several of them. In his affidavit, Mr. Di Franco in fact says that others have identified him as the target of the tweets – this is in fact how he first learned about them - and this has embarrassed him. This evidence has not been challenged.

[52] I accordingly conclude that most if not all of the tweets could reasonably be read as being directed towards Mr. Di Franco.

[53] Mr. Bueckert also argues that the term “alt-right” is not per se defamatory. In his affidavit, he asserts that the term encompasses views from the mainstream to the extreme. A member of the alt-right could be someone on the “alt-lite”, who would support the policies advanced by a major political party in Canada. Alternatively, such a person might hold radical and racist views that are well outside the mainstream of the current political spectrum. Mr. Bueckert argues that since the term is inherently ambiguous, the messages imply nothing more than the possibility that Mr. Di Franco might hold extremist views, as opposed to an assertion that he does.

[54] In his affidavit, Mr. Di Franco says that readers of Mr. Bueckert’s tweets would have understood that the term “alt-right” included white supremacists, anti-Semites, neo-fascists, Holocaust deniers, conspiracy theorists and other far-right fringe groups. He contends that the messages, read in context, imply that he was part of this sub-group with the alt-right.

[55] Since it is a screening mechanism, a motion under s. 137.1 does not create a forum for a full exploration of the merits of the parties’ allegations. The motion judge must decide whether a trier could reasonably conclude that the plaintiff’s claim has substantial merit, not that a finding for the plaintiff at trial is the most likely outcome. Pointes Protection, at para. 75. As the Court of Appeal has emphasized, s. 137.1 does not create a new way for a defendant to obtain summary judgment on the merits of a claim:

If the motion record raises serious questions about the credibility of affiants and the inferences to be drawn from competing primary facts, the motion judge must avoid taking a “deep dive” into the ultimate merits of the claim under the guise of the much more limited merits analysis required by s. 137.1(4)(a). If it becomes apparent to the motion judge that a proper merits analysis would go beyond what could properly be undertaken within the confines of a s. 137.1 motion, I think the motion judge should advise the parties that a motion for summary judgment would provide a more suitable vehicle for an expeditious and early resolution of the claim.

[56] I do not need to find that “alt-right” is, by definition, a defamatory term in order to determine that the lawsuit meets the first leg of the test under s. 137.1. It is enough for me to find that this is a finding in the range of findings that a trier of fact could reasonably reach. In his affidavit, Mr. Bueckert acknowledges that the term alt-right includes persons with extreme views. His tweets furthermore did not simply refer to the “alt-right” but to groups including the “extremist alt-right”, the “alt-right fringe”. To the extent that they target Mr. Di Franco, the messages arguably do not identify him as someone with mainstream political views, but someone who holds or endorses extreme or fringe views. A court could reasonably conclude that this is defamatory.

[57] Some of the language used in Mr. Bueckert’s tweets is slang. Terms such as “lobster fanboy” and “MAGA chud” were unknown to me prior to hearing this motion. In his affidavit, Mr. Di Franco says that the term “lobster fanboy” is a reference to an argument advanced by Jordan Peterson, a psychology professor at the University of Toronto, about how societies are naturally hierarchical. It is, according to Mr. Di Franco, an insult. He says that a “chud” is either a member of an alt-right or right wing group or simply someone stupid or ugly. It is also pejorative. Since this is the only evidence before me with respect to these terms, I must conclude that Mr. Di Franco has established that a court could reasonably find them to be defamatory.

[58] Mr. Bueckert also argues that his statements about Mr. Di Franco in the article and podcast in early 2019 are not defamatory. In the impugned passage in the article, Mr. Bueckert refers to Mr. Di Franco’s student group as follows:

These particular “free speech” groups were formed in recent years in order to defend the presence of hateful bigoted views on campus, from Jordan Peterson’s transphobic conspiracy theories to Faith Goldy’s ethno-nationalism. In fact, these groups often appear to have al-right tendencies themselves...

[59] Mr. Bueckert contends that this statement does nothing more than identify Mr. Di Franco as a member of a student group that might have “alt-right tendencies”. As such, it would not necessarily tend to lower Mr. Di Franco’s reputation in the eyes of a reasonable person.

[60] This argument again turns on whether the term “alt-right” is defamatory. The term, read in the context of the passage as a whole could, in my view, reasonably be found to be defamatory.

[61] In the first sentence, Mr. Bueckert characterizes certain views as “hateful”, “bigoted”, and “transphobic”. The second sentence suggests that individuals in student groups like that of Mr. Di Franco may share these views. It would not be a leap of logic for someone to conclude, based on this, that Mr. Di Franco himself has views that are hateful, bigoted and transphobic.

[62] In the podcast, Mr. Di Franco says that Mr. Bueckert defamed him in three ways. First, he said that “it really gives you a sense of [Mr. Di Franco’s] political ideology that he would associate with Gavin McInnes”, whom he said held anti-Semitic views. Second, Mr. Bueckert referred to Mr. Di Franco as “some random alt-right bro”. Third, he said that groups like that to which Mr. Di Franco belongs “provide a platform for anti-feminist speakers”. Mr. Di Franco claims that all of this implies that he is himself anti-Semitic and anti-feminist, and an “alt-right bro”.

[63] Given the conclusion I have already reached about the potentially defamatory effect of calling someone alt-right, I do not need to consider whether a court could reasonably conclude that the other impugned statements in the podcast are defamatory.

[64] I conclude that Mr. Di Franco has satisfied the first element of the test under s. 137.1, by showing the lawsuit may have merit, in that a trier of fact could reasonably find that Mr. Bueckert’s tweets, and the statements he made about Mr. Di Franco in the podcast and article, are defamatory.

Stage 2(ii): Has Mr. Di Franco shown that Mr. Bueckert has no valid defence?

[65] At this stage of the analysis, Mr. Di Franco must persuade me that that a judge considering the merits of the action could reasonably reject Mr. Bueckert’s defenses to the defamation claim. If I conclude that Mr. Bueckert’s defences would necessarily prevail, I would have to grant the anti-SLAPP motion. If on the other hand I find that his defenses might not succeed, then Mr. Di Franco has met his onus on this part of the test. Pointes Protection, at paras. 83 and 84; New Dermamed Inc. v. Sulaiman, 2019 ONCA 141, at para. 12; Lascaris v. B’nai Brith Canada, 2019 ONCA 163, at para. 33.

[66] The Court of Appeal has described the onus that the plaintiff must meet on this part of an anti-SLAPP motion as follows:

The burden on [the plaintiff] under s. 137.1(4)(a)(ii) is not to show that a given defence has no hope of success. … Rather, all that the [plaintiff] need show is that it is possible that the defence would not succeed. Lascaris v. B’nai Brith, 2019 ONCA 163, at para. 33.

[67] In a more recent case, the Court concluded in that the plaintiff met its onus under this stage of the s. 137.1 test by showing that the defence “could go either way”. Bondfield Construction Company Limited v. The Globe and Mail, 2019 ONCA 166, at para. 15.

[68] In his plea, Mr. Bueckert has advanced the defenses of justification and fair comment. For the reasons that follow, I conclude that these defenses would not necessarily be accepted by a trier of fact. Mr. Di Franco has therefore met this part of the test under s. 137.1

The defence of fair comment

[69] To establish a defence of fair comment, a defendant must show that his comments:

(a) deal with a matter of public interest;

(b) are based on fact; and

(c) are recognizable as comments, although they can include inferences of fact. Simpson v. Mair, 2008 SCC 40, [2008] 2 S.C. R. 420, at para. 28.

[70] The defendant must furthermore show that a reasonable person could honestly express the opinion at issue on the proved facts, and that the comments were not deliberately malicious. Simpson v. Mair, 2008 SCC 40, at para. 28.

[71] In his affidavit, Mr. Bueckert has explained at length why he honestly believes that Mr .Di Franco holds views that could fairly be qualified as “alt-right”. His belief is based on:

• Mr. Di Franco’s appearance on a podcast hosted by Gavin McInnes, a political commentator who has broadcast comments that are anti-Semitic and Islamophobic, and who has been banned from various internet platforms.
• Tweets and social media posts by Mr. Di Franco expressing support for McInnes and other commentators who have expressed alt-right views, including, among others, Alex Jones, Milo Yiannopoulos and Maxime Bernier.
• Tweets and posts by Mr. Di Franco which, in Mr. Bueckert’s view, show that his political views align with the alt-right.

[72] In his affidavit, Mr. Di Franco describes his political views are “centre right”. He denies that they can fairly be characterised as “alt-right”, or that he is anti-Semitic, Islamophobic, homophobic, transphobic or anti-feminist. He asserts that his support for the right of free speech for various commentators on the political right does not amount to an endorsement of every statement they may have made. He takes issue with Mr. Bueckert’s conclusions about his views based on his social media posts and tweets. He says, for example, that a post that makes light of the Holocaust was merely a joke in poor taste.

[73] In some of Mr. Di Franco’s online comments, he expresses views that unquestionably could be found to be on the far right of the Canadian political spectrum. His attempts to distance himself from the views of commentators he has repeatedly endorsed are not always convincing. A judge hearing the merits of the action could reasonably conclude that Mr. Di Franco’s social media activity shows that he holds views that could be fairly characterized as extreme, that a person could honestly have the opinion that his views align with the far right, that Mr. Bueckert’s comments were recognizable as opinion, and that he was not motivated by malice. As a result, a judge could reasonably conclude that Mr. Bueckert’s statements about Mr. Di Franco’s views were fair comment.

[74] Whether Mr. Bueckert could persuade a trier of fact that his defence should succeed is not, however, what I need to consider. What I need to consider is whether Mr. Di Franco has shown that this defence might reasonably fail. To use the phrase used by the Court of Appeal, I must consider whether the defence could go either way.

[75] The Court of Appeal’s decision on this point in Lascaris v. B’nai Brith Canada is instructive, because there are parallels between the type of speech at issue there and the speech at issue here. Lascaris, a member of the Green Party of Canada, posted messages on Facebook criticizing the Israeli government’s actions in response to an alleged knife attack by a political activist in East Jerusalem. B’nai Brith, a Jewish organization, repeatedly published statements that Lascaris was advocating on behalf of terrorists who had murdered Israeli citizens. The judge who heard B’nai Brith’s anti-SLAPP motion concluded that its statements could reasonably be found to constitute fair comment, and that Lascaris had accordingly not met his burden of demonstrating that the defendant had no valid defence to his lawsuit. He therefore granted B’nai Brith’s motion to dismiss the action.

[76] The Court of Appeal granted Lascaris’ appeal and reinstated his action. It concluded that, if the action were permitted to proceed, “a reasonable trier could conclude that that the defence of fair comment would not succeed”:

It would be open to a trier to conclude that the statements made about [Lascaris] – namely, that he supported terrorists – were uttered as statements of fact, not as statements of opinion. Further, even if the statements were viewed as opinion, a trier could also conclude that, on the available facts, a person could not honestly express that opinion on the proved facts. Lascaris v. B’nai Brith, 2019 ONCA 163, at para. 34.

[77] These conclusions apply equally to the defence of fair comment advanced by Mr. Bueckert. A judge on a summary judgment motion or at trial could reasonably conclude that his characterization of Mr. Di Franco as a member of the “alt-right fringe” or “extreme alt-right” were uttered as statements of fact, not as statements of opinion. A judge could also accept Mr. Di Franco’s argument that an endorsement of a person’s right to speak freely, and even offensively, does not imply support for that person’s views on other issues. Finally, a judge could conclude that Mr. Di Franco’s statements about various political issues did not qualify as extreme or fringe. As a result, even if Mr. Bueckert’s statements about Mr. Di Franco were accepted as opinion, a judge could conclude that a person could not honestly express that opinion on the proved facts.

[78] As a result, I must conclude that both the acceptance and the rejection of Mr. Bueckert’s defence of fair comment are possible, reasonable outcomes of a hearing of the merits of the action. As a result, I find that Mr. Di Franco has met his onus with respect to this defence.

The defence of justification

[79] Mr. Bueckert also relies on the defence of justification. He contends that his statements were the product of “an intelligent and reasonable conclusion supported by facts”.

[80] In Lascaris v. B’nai Brith Canada, 2019 ONCA 163, the Court of Appeal held that the plaintiff had met his onus with respect to this defence for the same reasons raised in respect of the fair comment defence. Lascaris v. B’nai Brith, 2019 ONCA 163, at para. 35.

[81] I likewise find, for the reasons I have already set out, that a trier of fact could reasonably reject Mr. Bueckert’s defence of justification, depending on the judge’s conclusions on the meaning of terms he used in reference to Mr. Di Franco, and on whether Mr. Di Franco’s protestations about his lack of extreme political views can be reconciled with his social media postings and tweets.

Stage 2(iii): Has Mr. Di Franco shown that the harm caused or likely to be caused by the expression is outweighed by the public interest in protecting Mr. Bueckert’s expression?

[82] Since I have concluded that Mr. Di Franco may have a valid cause of action and that Mr. Bueckert’s defenses may not succeed, I must balance society’s interest in allowing the action to proceed with its interest in not unduly inhibiting expression on matters of public interest. As already stated, s. 137.1(4)(b) states that a motion judge shall not dismiss a proceeding if the plaintiff satisfies the judge that:

The harm likely to be or have been suffered by the [plaintiff] as a result of the [defendant’s] expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[83] The Court of Appeal has described this stage of the analysis as the heart of the anti-SLAPP legislation. Pointes Protection, at para. 86. It has repeatedly cited the following passage in a report to the Attorney General in 2010 that recommended the adoption of s. 137.1:

If an action against expression on a matter of public interest is based on a technically valid cause of action but seeks a remedy for only insignificant harm to reputation, business or personal interests, the action’s negative impact on freedom of expression may be clearly disproportionate to any valid purpose the litigation might serve. The value of public participation would make any remedy granted to the plaintiff an unwarranted incursion into the domain of protected expression. In such circumstances, the action also may be properly regarded as seeking an inappropriate expenditure of the public resources of the court system. Where these considerations clearly apply, the court should have the power to dismiss the action on this basis. Anti-SLAPP Advisory Panel, Report to the Attorney General (Ontario, Ministry of the Attorney General, 2010), at para. 37, cited in Pointes Protection, at para. 86, and in Platnick v. Bent, 2018 ONCA 687, at para. 96.

[84] A good starting point for the weighing exercise is consideration of whether a lawsuit has the hallmarks of a SLAPP, that is, is it the type of action that s. 137.1 was designed to curtail. Platnick v. Bent, 2018 ONCA 687, at para. 98. The classic hallmarks of strategic lawsuit against public participation are as follows: Platnick v. Bent, 2018 ONCA 687, at para. 99.

• The plaintiff has a history of using litigation or the threat of litigation to silence critics;
• The difference between the parties’ resources, both financial and otherwise, give rise to a power imbalance favouring the plaintiff;
• By bringing the claim, the plaintiff seeks to punish or obtain revenge against the defendant; and
• The plaintiff has suffered minimal or nominal damages as a result of the defendant’s conduct.

[85] Mr. Di Franco’s lawsuit against Mr. Bueckert does not have these hallmarks. There is no evidence that he has previously engaged in litigation or threats of litigation. Both parties are students; there is no obvious power imbalance. I cannot, on the materials on this motion, conclude that Mr. Di Franco has a punitive or retributory purpose in starting the action.

[86] I also cannot conclude that Mr. Di Franco’s damages has suffered to more than nominal damages as a result of Mr. Bueckert’s statements about him. Pointes Protection, at para. 90.

[87] Damages that may be suffered as a result of defamation may be monetary (a provable loss of an employment opportunity, for example) or general: Pointes Protection, at para. 88, citing Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at paras. 117-21; and Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at paras. 79-80.

The preservation of one’s good reputation or one’s personal privacy have inherent value beyond the monetary value of a claim. Both are tied to an individual’s liberty and security interests and can, in the appropriate circumstances, be taken into account in assessing the harm caused to the plaintiff by the defendant’s expression…

[88] General damages are in fact presumed from the publication of libel, even in the absence of any proof of actual loss. Hill v. Church of Scientology of Toronto, at para. 164. A plaintiff is not expected, at this preliminary stage, to present a fully-developed damages brief: assuming the claim meets the merits-based analysis that precedes the balancing exercise, “a common sense reading of the claim, supported by sufficient evidence to draw a causal connection between the challenged expression and damages that are more than nominal will often suffice”. Pointes Protection, at para. 90.

[89] In his affidavit, Mr. Di Franco says that he is suffering ongoing reputational damages as a result of Mr. Bueckert’s public statements about him, which he has refused to retract or remove. He also claims damages for future income loss. Mr. Di Franco is now in law school and will be seeking employment with law firms.

[90] Mr. Bueckert takes issue with Mr. Di Franco’s contention that, when his name is typed into a search engine, the term “alt-right” appears as a suggested search term. Whether or not Mr. Di Franco is correct about this, however, it is indisputable that the impugned statements remain accessible through an internet search.

[91] A lawyer’s reputation is “of paramount importance”. Hill v. Church of Scientology of Toronto, at para. 118. I accept Mr. Di Franco’s evidence that law firms seeking to hire students may verify what candidates have posted, and what is posted about them, on social media. His alleged association with white supremacy, right-wing extremism and the alt-right could be found to affect his job prospects. Mr. Di Franco may therefore be able to prove that he has suffered a pecuniary loss as well as general damages.

[92] Mr. Bueckert also relies on the Court of Appeal’s decision in Pointes Protection emphasizing that a plaintiff must be able to show that the damages could have been caused by the defendant’s expression:

Evidence of this connection will be particularly important when the motion material reveals sources apart from the defendant’s expression that could well have caused the plaintiff’s damages. Pointes Protection, at para. 92.

[93] Mr. Bueckert contends that his tweets and other statements about Mr. Di Franco merely confirm what would be obvious to anyone taking the time to review Mr. Di Franco’s own social media activity. As a result, even if a court were to conclude that his tweets and other statements about Mr. Di Franco were defamatory, it could not award more than nominal damages.

[94] The problem with this argument is the same problem that prevents me from concluding that Mr. Bueckert’s defenses would not necessarily be rejected by a trier of fact. It presupposes that I could, at this preliminary stage, determine what is meant by the term “alt-right” or “extreme alt-right”, in the absence of a full evidentiary record. It also presupposes that I would make findings about Mr. Di Franco’s credibility. This is not however a summary judgment motion or a trial. Such findings are outside the scope of what I may do in the context of a s. 137.1 motion.

[95] As a result, I conclude that Mr. Di Franco’s lawsuit is not classic SLAPP litigation, and that a judge hearing the merits could reasonably conclude that he has suffered more than nominal damages.

[96] Mr. Bueckert’s impugned statements indisputably concern issues of important public interest. These issues include how best to foster free speech on Ontario campuses without giving a platform for hate speech; whether the consultation process engaged in by the provincial government in connection with its educational policies was meaningful or democratic; and whether superficially neutral policies actually favour certain ideologies.

[97] The means by which Mr. Bueckert expressed his views, however, complicates the balancing exercise at the heart of an anti-SLAPP motion. The Court of Appeal has held that, even if a statement contains “deliberate falsehoods, gratuitous personal attacks, or vulgar and offensive language”, it may nonetheless be an expression that relates to a matter of public interest. But it has also observed that “the public interest in protecting that speech will be less than would have been the case had the same message been delivered without the lies, vitriol, and obscenities”. Pointes Protection, at para. 94, citing Able Translations Ltd., at paras. 82-84 and 96-103.

[98] The language used by Mr. Bueckert, and the medium through which he delivered most of the statements at issue, make it difficult to assess the public interest in protecting his speech. Although tweets are a recognized medium for political expression, their value as a means of promoting informed debate is unclear. The messages typically conveyed in tweets – which often jettison reasoned analysis and debate for pithy, partisan, and often pejorative, sound bites – could attract lesser protection. On the other hand, given their effectiveness as a means of inciting exchanges on topics of public interest, tweets might arguably attract a high degree of protection.

[99] Given the possibility that Mr. Di Franco will, if successful in the action, be entitled to more than nominal damages, and given the uncertainty about the degree of protection that should be given to the expression at issue, I conclude that the public interest weighs in favour of allowing the action to proceed to a determination on its merits.

Conclusion

[100] I am dismissing both Mr. Di Franco’s motion to strike Mr. Bueckert’s affidavit, and Mr. Bueckert’s motion to dismiss Mr. Di Franco’s action.

[101] If the parties are unable to agree on costs, they may each submit a cost outline, attaching a draft bill of costs and any authorities, within ten days of the release of these reasons. The cost outline submitted by each party shall not exceed five pages in length. Submissions shall be submitted in electronic form only, through the trial co-ordinator’s office. The deadline set here for submissions applies notwithstanding the current restrictions on filing and the waiver of statutorily-imposed timelines during the Covid-19 pandemic.

Justice Sally Gomery Released: March 30, 2020