Court File and Parties

COURT FILE NO.: 18-78290 DATE: 2020/01/16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Canadian Union of Postal Workers, Plaintiff (Responding Party) AND: B’nai Brith Canada, Michael Mostyn, Aidan Fishman And Ran Ukashi, Defendants (Moving Parties)

BEFORE: Mr. Justice C. MacLeod

COUNSEL: David Elmaleh and Aaron Rosenberg, for the Moving Parties David Migicovsky & Karin M. Page, for the Responding Party

HEARD: November 28, 2019

DECISION AND REASONS

[1] This is a motion brought pursuant to s. 137.1 of the Courts of Justice Act [1] to dismiss the action as “strategic litigation against public participation” or in other words an “anti-SLAPP motion”. B’nai Brith contends that the defamation action brought against the defendants by CUPW is an illegitimate attempt to suppress freedom of expression on a matter of public interest and the action should be stayed or dismissed.

[2] While this litigation has some elements of SLAPP litigation, it does not appear to me that it is the type of action the legislature contemplated should be stopped in its tracks at this preliminary stage.

[3] As I will discuss, the legislative amendments were intended to provide a mechanism to weed out litigation of doubtful merit which unduly discourages and seeks to restrict free and open expression on matters of public interest. [2] By contrast, this is a case in which the defamation action appears to have merit. The defences which have been raised by B’Nai Brith are not certain to be successful. The evidence does not persuade me that the principal objective of CUPW is to stifle criticism.

[4] For those reasons, which I will discuss in more detail, the motion is dismissed.

Background and Context

[5] Canadian Union of Postal Workers, commonly known as “CUPW” is one of the main public sector unions in Canada. Amongst its objectives is co-operation with unions of postal workers in other countries. It participates in international capacity building projects including a project with the Palestinian Postal Service Workers Union (“PPSWU”).

[6] CUPW also takes positions on political and human rights issues from time to time and it has for many years supported a boycott of Israeli products because of what the union believes is Israel’s mistreatment of Palestinians in the occupied territories. This is known as the “Boycott, Sanctions and Divestment Movement (“BDS Movement”) and is referred to in the Lascaris decision of the Court of Appeal. [3]

[7] B’nai Brith is a charitable organization which exists to support Jews and Judaism in Canada as well as human rights generally. It describes itself as a leader in combatting antisemitism and racism as well as a defender of the State of Israel and it has acted as a grassroots voice for the Canadian Jewish Community since 1875. B’nai Brith recognizes that criticizing Israel is not in itself antisemitic but it believes that much anti-Israel activity is antisemitic. It regards the BDS Movement as an antisemitic movement designed to delegitimize and demonize Israel.

[8] The BDS movement is a deeply divisive issue related to the question of Israel’s activities in the occupied territories. It is not directly related to the issues in dispute but it was a complaint to B’nai Brith by a Jewish member of CUPW about union support for the BDS which motivated B’nai Brith to examine CUPW’s activities in 2018. In the course of its research, the defendant Aidan Fishman discovered CUPW’s support of and work with PPSWU.

[9] This led B’nai Brith to search out information about PPSWU including social media platforms that appeared to be associated with that union. On a Facebook page maintained by a person in a leadership role with PPSWU, they found postings in Arabic praising as heroes certain individuals who had been involved in terrorist activity against the state of Israel in support of Hamas or the al-Aqsa Martyr’s Brigade. They found other postings on the PPSWU page which appeared to be pro-Palestinian and which B’nai Brith interprets as implicitly calling for the destruction of Israel.

[10] B’nai Brith sent an e-mail to CUPW on July 26, 2019 calling on CUPW to comment on the PPSWU Facebook postings and advising they intended to publish a story about CUPW and its association with PPSWU. Then on July 31, 2019 B’nai Brith published the first of the press releases which is the basis for the defamation action. Under the heading “Canadian Postal Workers Align with Pro-Terrorism Palestinian Union” B’nai Brith posted an article authored by the defendants Fishman and Ukashi. The article states that PPSWU glorifies terrorists on its official Facebook page and states in regard to CUPW that “rather than using the union movement to build peace between Israel and the Palestinians, the CUPW leadership has aligned itself with the path of violence and extremism.” A second press release was published on August 2, 2018.

[11] In the second press release amongst other things, B’Nai Brith stated that “CUPW’s radical leadership has refused to respond to our questions on why it would partner with a terror-supporting organization”. It commented on the unfairness of the union compelling Jewish and Israeli members to pay union dues and using those dues to “pay fees, which may be used to support a foreign organization that wants to see them murdered”. B’nai Brith said it would continue to hold institutions accountable for their links to terrorism and antisemitism.

[12] CUPW has sued for defamation. Besides the inferring that the Canadian union supports terrorism and is antisemitic, CUPW alleges that B’nai Brith acted maliciously. CUPW indicates that its own calls for a peaceful two state solution to the middle east conflict is well publicised and is available on its web site. So too is CUPW’s opposition to terrorism, violence and antisemitism in all forms. The union alleges that not only is there no truth to the implication that CUPW is antisemitic and pro-terrorist, it is not even true that PPSWU promotes terrorism or the destruction of Israel. B’nai Brith, it says, at best, reached unwarranted conclusions on the basis of faulty research and issued its press releases with reckless disregard for the truth.

The Issue and the Legal Test

[13] S. 137.1 of the Courts of Justice Act was part of a package of statute amendments passed in 2015 in order to protect freedom of expression and discourse on matters of public interest. [4] In general terms, the purpose of the legislation was to inhibit the use of “libel chill” to shut down debate on matters of public interest. Section 137.1 (1) reads as follows:

137.1 (1) The purposes of this section and sections 137.2 to 137.5 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.

[14] The Pointes decision and the Lascaris decision referenced above represent the current state of the law in Ontario. In Pointes, the court found that the section was not designed as a complete bar to all actions. The court put it this way: “plaintiffs who commence a claim alleging to have been wronged by a defendant’s expression on a matter of public interest must be prepared from the commencement of the lawsuit to address the merits of the claim and demonstrate that the public interest in vindicating that claim outweighs the public interest in protecting the defendant’s freedom of expression”. This is a screening process. It is not a licence to defame with impunity.

[15] Pointes also teaches that an anti-SLAPP motion is not a summary judgment motion. Assuming the section is engaged because the impugned communication involved a matter of public interest, the judge may permit the action to continue if the claim is legally tenable and appears to have substantial merit. [5] In Lascaris , the Court of Appeal interpreted s. 137.1 (4) (a) (ii) to mean that a reasonable trier of fact could conclude that none of the pleaded defences would succeed at trial. [6] It is premature to determine such a question conclusively at this preliminary stage of the litigation. There need only be a basis for believing these conditions may be satisfied. The section does not require the motion judge to conclusively determine that the claim will succeed nor that the defences will fail. It reads as follows:

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding 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.

[16] In brief, the legislation sets up a series of questions that must be answered. Firstly, is the expression made in relation to a matter of public interest? If not, the section does not apply and if so it does. Secondly, does the proceeding appear to have merit and thirdly does it appear any defences that are pleaded may well fail? If the proceeding appears to be without merit or it appears the defences would likely succeed, the action should be dismissed. If the action has evident merit and the defences may fail, the court is to proceed with the balancing question in s. 137.1 (4) (b). This asks the court to consider if the harm potentially suffered by the plaintiff is trivial or not and if it is serious to consider whether it is in the public interest to deny the plaintiff a remedy in the name of freedom of speech.

[17] All of this must be interpreted and applied in the context of Canadian defamation law which already requires a balancing of the right to defend and protect a plaintiff’s reputation against the constitutionally protected right to freedom of speech.

[18] In the common law provinces, if the plaintiff can prove three facts, a case for defamation is made out and the defendant is presumptively liable in damages. Those are firstly that the impugned words were defamatory because they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person. Secondly, the plaintiff must show that the words referred to the plaintiff. Thirdly, the plaintiff must prove that the words were communicated to at least one person other than the plaintiff. [7] While defamatory meaning may be obvious from the words themselves, the court may also “take into consideration all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented.” [8]

[19] If these elements are established on a balance of probabilities, then at least in libel cases, falsity and damages are presumed although a plaintiff may seek special aggravated or punitive damages in some cases. Liability is strict insofar as it is not necessary to prove intention, but proof of malice may either vitiate certain defences or justify additional damages. [9]

[20] Most of the nuanced and complicated issues in defamation actions relate to the defences of which there are seven recognized in law. The important point is that once the plaintiff has proven the elements of defamation, the onus shifts to the defendant. A defendant which is unable to establish at least one of those defences will be liable.

[21] In addition to the anti-SLAPP provisions, there are seven recognized defences to a defamation action. The defences are “truth” or “justification”, “immunity” or “absolute privilege”, “qualified privilege”, “responsible communication in mass media” or “responsible journalism”, “reportage” or “reporting on matters of public interest”, “fair comment”, “consent” and, “statutory limitations” found in the Libel and Slander Act . [10] In each case the defendant must prove that the particular defence applies.

Analysis

[22] For purposes of this motion, I accept that the use of union funds to support political causes, to take positions on middle east conflict or to support organizations that might support attacks on Israel are matters of public interest. Legitimate criticism of these practices would fall within the scope of protected speech under the anti-SLAPP legislation. If the litigation is merely a tactic to discourage criticism, it would be appropriate to stay or dismiss the action.

[23] In this case, in its factum, the defendants raised the question of the plaintiff’s standing. It is possible that the union may be caught by the prohibition in the Rights of Labour Act but my preliminary view is the law has evolved to the point that a union may now sue to defend its reputation and its right to do so is not dependant on any statute. It’s right to sue would therefore be “irrespective” of the Act. [11] Defending its reputation is an activity central to the core function of a labour union. The Supreme Court of Canada has ruled that unions have sufficient legal personality to sue and be sued for purposes related to their labour relations functions. [12]

[24] I need not decide this question however for two reasons. This defence is a new position advanced for the first time at the motion but in any event there is a decision of the Court of Appeal to the effect that this is not a question to be decided on a preliminary motion. [13] It is not a question that should be decided in the context of this anti-SLAPP motion. For purposes of this motion, the capacity to sue is not a basis for concluding that the defamation action cannot succeed.

[25] Apart from that question, there is no doubt that there is a solid case for defamation. It is easy to prove the threshold requirements. There is no question that the words were published and referred to CUPW by name. Like a corporation, a union may be defamed although of course it cannot suffer hurt feelings. [14]

[26] Words suggesting that a union is using its membership dues improperly, supports terrorism and is motivated by racism would easily meet the test of language tending to diminish the reputation of the union in the minds of reasonable people. The impugned language was directed particularly towards members or potential members of the union as well as members of the pubic. The press releases appear designed to put pressure on the union by creating dissention amongst the membership and to disrupt its business operations by so doing.

[27] The success of this motion therefore depends on the strength of the defences. I agree with the plaintiff that there are serious flaws in the defence of “responsible comment on matters of public interest”, “truth”, “justification” or “fair comment”. Without going into the evidence in depth, I will just hit some of the highlights.

[28] The plaintiff contends that it is completely untrue that CUPW supports terrorism or violence or the abolition of the State of Israel. Nor is it true that simply by being involved in a project with the PPSWU, exchanging information, or receiving the president of the union that CUPW can reasonably be said to be radical or aligned with any and all activities of the Palestinian union. There is certainly an issue here that may make it very difficult for the defendant to rely on “truth” as a defence. The Government of Canada, the European Union, United Nations and even the State of Israel as well as many individual organizations have sponsored projects in Gaza and the West Bank aimed at economic, justice system or governmental institution building and capacity building.

[29] Not only would it be difficult to prove that CUPW literally supports terrorism, violence or antisemitism, the evidence also suggests it will be difficult to show that PPSWU officially supports terrorism. Evidence was led before me to show that the Facebook postings honouring “heroes” were not postings on the official Facebook page of the union but on the page of an individual. There are also non-malevolent explanations for displays of the Palestinian flag covering the territory where Israel is located. I do not have to decide this question. There is a reasonable and distinct possibility that “truth” and “justification” will not succeed.

[30] There is also evidence to suggest that B’nai Brith acted on assumptions without exercising due diligence. The only research into PPSWU was a cursory internet search and review of Facebook pages. B’nai Brith appears to have entirely ignored CUPW’s own policies and declarations against violence and racism and in support of a peaceful two state solution in the middle east. This may be fatal to any “fair comment” defence and may be evidence of malice. Malice may also be inferred from the fact that this entire episode was triggered by B’nai Brith’s deep disagreement with the union’s support of the BDS Movement but rather than attacking that directly without defaming the union, the defendants chose to focus on the relatively minor involvement with the PPSWU and to blow that out of proportion.

[31] Proof of malice can be used to support a claim for aggravated or punitive damages but it is also fatal to several of the defences, in particular any defence relying on responsible behavior or fair comment. Malice in the legal sense is not necessarily a moral judgment. It may simply be that the utterance is for an ulterior motive. Recklessness or carelessness about the truth of the underlying facts may also nullify the defence of fair comment and may be evidence of malice. [15] In some circumstances, malice is implied. Malice may also be inferred from the conduct of the defendant outside of the four corners of the publication itself. [16] In this case the branding of CUPW’s leadership as antisemitic and the previous history of litigation may support such a finding.

[32] I stress that I am not myself making a finding of malice, impugning the bona fides of B’nai Brith or otherwise determining the merits of this proceeding. As I stated above, my task on this motion is to screen out litigation that is targeted by the legislation. That is litigation of questionable merit or utility brought to stifle public debate on matters of public interest. This is not a summary judgment motion and it is not appropriate to take a “deep dive” into the evidence.

[33] I am satisfied on the evidence before me that this is a legitimate defamation action brought in circumstances where the union should have the right to pursue a remedy. The threshold presumptions in Canadian defamation law are readily triggered in this case and the onus would then be on the defendant to shelter under one of the recognized defences. The evidence before me suggests that is not a “slam dunk”. To the contrary, there are significant issues about truth, good faith, responsibility and malice.

Disposition and Costs

[34] In conclusion, the motion to dismiss the proceeding under s. 137.1 of the Courts of Justice Act is dismissed.

[35] There is a presumption against costs on this motion in s. 137.1 (8) although costs remain available if the judge determines that such an award is appropriate under the circumstances. I note that the legislation does not use the term “costs of the motion” so in my view this is not a bar to a trial judge considering this step when awarding costs of the action. But I have not heard submissions on costs.

[36] Counsel indicated they may be able to agree on costs and I encourage them to do so. If they cannot do so and wish to make submissions, they should so advise my office within 30 days. If I hear nothing further within that time then there will be no order as to costs.

[37] In conclusion, let me observe that this motion was tightly focused, well argued and despite the significant differences which have driven the parties to litigation, it was a model of civility and good advocacy. This is as it should be but I am greatly appreciative and counsel have my gratitude.

Mr. Justice C. MacLeod Date: January 16, 2020

Footnotes

[1] Courts of Justice Act , R.S.O. 1990, c.C.43, as am. [2] 1704604 Ontario Ltd. v. Pointes Protection Association , 2018 ONCA 685 (currently before the Supreme Court of Canada and under reserve) [3] Lascaris v. B’nai Brith Canada, 2019 ONCA 163 , 144 OR (3d 211, 431 DLR (4 th ) 486 currently before the Supreme Court of Canada on a leave application. See 2019 CarswellOnt 9854 , Supreme Court Docket No. 38614 [4] S.O. 2015, c. 23 [5] 1704604 Ontario Ltd. v. Pointes Protection Association , supra, para. 76 - 77 [6] Lascaris v. B’nai Brith Canada , supra @ para 33 [7] See Grant v. Torstar Corp ., 2009 SCC 61 , [2009] 3 S.C.R. 640 @ para 28 [8] See Botiuk v. Toronto Free Press Publications Ltd . , [1995] 3 S.C.R. 3 @ para. 62 [9] See Grant v. Torstar Corp . , supra, para. 29 [10] RSO 1990, c. L.12 as amended [11] RSO 1990, c. R.33 S. 3 (2) reads as follows: (2) A trade union shall not be made a party to any action in any court unless it may be so made a party irrespective of this Act or of the Labour Relations Act . [12] See Berry v. Pulley 2002 SCC 40 , [2002] 2 S.C.R. 493 See also Pulp & Paper Workers, infra holding that in B.C. a union can sue for defamation in its own name. [13] CUPW v. Quebecor Media Inc. , 2016 ONCA 206 @ para. 17 [14] See Pulp & Paper Workers of Canada v. International Brotherhood of Pulp, Sulphite & Paper Mill Workers, Local 298 , [1973] 4 WWR 160, 37 DLR (3d) 687 (BCSC) [15] Hill v. Church of Scientology , [1995] 2 SCR 1130 @ para. 145 [16] McDonald v. Freedman , 2013 ONSC 6812 (Div. Ct.)