Court File and Parties
COURT FILE NO.: CV-19-00629458-0000 DATE: 20210303
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHELLE KAM Responding Party/Plaintiff – and – CANADIAN BROADCAST CORPORATION, ZACH DUBINSKY and LISA MAYOR Moving Parties/Defendants
Counsel: Christopher Stienburg, for the Responding Party/Plaintiff Andrea Gonsalves, for the Moving Parties/Defendants
HEARD: November 30 and December 4, 2020
RESTRICTION ON PUBLICATION:
Pursuant to the Order of Justice Pinto dated October 5, 2020 portions of this decision contained in Schedule “A” refer to evidence contained in the supplementary affidavit of Michelle Kam sworn July 17, 2020 which are permanently sealed and may not be disseminated, published, broadcasted, disclosed or transmitted in any manner. All such material shall be redacted prior to publication.
Papageorgiou J.
Nature of the motion
1The defendants, the Canadian Broadcasting Corporation (“CBC”), Zach Dubinsky (“Mr. Dubinsky”) and Lisa Mayor (“Ms. Mayer”) (collectively, the “Moving Parties”) move to dismiss this action under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), Ontario’s “anti-SLAPP” regime.
2In the action, the plaintiff, Michelle Kam (“Ms. Kam”) has sued the Moving Parties in respect of two publications she says contain defamatory statements.
3The publications in question focus on the operations of an illegal cannabis dispensary chain (Cannabis and Fine Edibles, commonly known as “CAFÉ”) that refused to adhere to regulations regarding the sale of cannabis. These articles make reference to her.
4The Moving Parties deny that the words used in the two publications are defamatory. They say that Ms. Kam did not bring this action to redeem her reputation; rather, “she brought it to stifle all expression that could be considered to make connections between her and CAFÉ, and to suppress perhaps unflattering but true information about her and her spouse.”
5For the reasons that follow, I am granting the motion and dismissing this action.
The anti-SLAPP regime
6The anti-SLAPP regime was enacted to “prevent the misuse of the judicial system or other agencies of justice at the hands of litigants who resorted to lawsuits for strategic purposes”: Paramount v. Johnston, 2018 ONSC 3711, at para 20. In its recent decision, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 2 (“Pointes Protection”), the Supreme Court described strategic lawsuits against public participation (“SLAPP”) as:
[…] lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest. SLAPPs are generally initiated by plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others. In a SLAPP, the claim is merely a façade for the plaintiff, who is in fact manipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs.
7The substantive provisions of the anti-SLAPP regime reflect this purpose. Subsections 137.1(3) and (4) of the CJA set out a two-part test on an anti-SLAPP motion:
a. First, the defendant has the onus of satisfying the court that the plaintiff’s proceeding arises from an expression that “relates to a matter of public interest” (the “threshold burden”).
b. Second, if the defendant meets that threshold, the burden shifts to the plaintiff to show all of the following:
i. grounds to believe that his or her proceeding has “substantial” merit; and
ii. grounds to believe that the moving party has no “valid” defence (i. and ii. together are the “merits hurdle”); and
iii. that the harm “likely to be suffered” by the respondent is sufficiently serious such that the public interest in allowing the proceeding to continue outweighs the public interest in protecting that expression (the “public interest hurdle”).
8The three parts of the plaintiff`s onus at the second branch of the test are conjunctive. If the plaintiff fails to meet her onus on any of those requirements, the action must be dismissed.
Does the proceeding arise from an expression that relates to a matter of public interest?
9To satisfy the threshold burden, the moving party must show on a balance of probabilities that (i) the proceeding arises from an expression made by the moving party (or parties), and (ii) the expression relates to a matter of public interest: Pointes Protection, at para. 23.
10There is no question that this proceeding arises from an expression of the Moving Parties.
11Regarding whether the expression relates to a matter of public interest, the Supreme Court held that the concept of “public interest” must be given a “broad and liberal interpretation”: Pointes Protection, at paras. 26, 28. In determining what constitutes “public interest”, the Supreme Court explained at para. 27, citing Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640:
The expression should be assessed “as a whole”, and it must be asked whether “some segment of the community would have a genuine interest in receiving information on the subject” (paras. 101-2). While there is “no single ‘test’”, “[t]he public has a genuine stake in knowing about many matters” ranging across a variety of topics (paras. 103 and 106).
12In my view, the Moving Parties easily satisfy this test.
13The two articles in question were published in the context of Canada’s decriminalization of recreational cannabis (which occurred in October 2018) and transition to a new regulatory regime. During this time period, there was substantial public discourse on many cannabis-related issues.
14In particular, the decriminalization of illegal cannabis dispensaries garnered significant public attention, especially in Toronto. Various mainstream media outlets published news articles on the topic at the time and public officials commented on the legal and regulatory issues that arose. The interest continued post-decriminalization, as certain dispensaries continued to distribute cannabis without the required license. This deliberate flouting of the new regulatory regime raised serious concerns about respect for the law. Even Toronto’s Mayor, John Tory, felt compelled to comment publicly about these dispensaries: “The notion of just flagrantly breaking the law over and over and over again to me is — I just can’t even fathom that.”
15As reported by multiple media outlets, CAFÉ continually defied the laws regulating cannabis; it moved customers from location to location to circumvent shutdown efforts, or simply reopened once authorities left. This also raised important questions about the efficacy of the new regulatory regime for recreational cannabis, and the individuals who would be allowed to participate in, and profit from, this nascent industry.
16It was in this context that in or about April 2019 the Moving Parties began their investigation into illegal dispensaries in Toronto. Their objective was to look at whether the policy objectives of decriminalization were being met. Their initial research led to a focus on CAFÉ because of its size (at one point it operated one-third of all illegal dispensaries in Toronto) and its notoriety for disobeying the law.
17The essence of these publications is an exploration of whether this new regime satisfied the policy objectives of decriminalization, including controlling who would have access to the industry and keeping out those with criminal histories.
18Section 3(4) of the Cannabis License Act, 2018, S.O. 2018, c. 12, Sched. 2, supports finding that this issue is a matter of public interest. This provision specifically lists circumstances in which an applicant is not eligible to obtain a retail license as including those who are engaged in criminal activities or those who may not carry on a business in accordance with the law.
19In her factum, Ms. Kam accepts that the general topics of legalization of cannabis dispensaries and issues arising from the implementation of the new regulatory regime, including unlicensed dispensaries, are topics of public interest. However, she focuses on the particular statements made about her and her connections to Wesley Weber (her husband and alleged owner of CAFÉ) and argues that there is no public interest in these particular subjects.
20Ms. Kam relies upon Veneruzzo v. Storey, 2018 ONCA 688, at para. 20, where the Court indicated: “A defendant who makes statements about a purely private matter cannot gain the protection of s. 137.1(3) by interspersing references to some other topic that may relate to a matter of public interest.”
21In this case, the articles are not primarily about purely private matters with matters of public interest interspersed. The focus of these publications is the regulation of the cannabis industry.
22Further, the proper approach in law is not to scrutinize the narrow slice of a communication that the plaintiff complains of and review it in isolation from the expression as a whole: Grant v. Torstar Corp., at para 101. The question is, what is the expression about, when placed in its context and taken as a whole: Pointes Protection, at para 60.
23I am satisfied that the Moving Parties have met their burden of demonstrating that this proceeding arises from an expression that relates to a matter of public interest.
Does the action have substantial merit?
24Once a court finds that the moving defendants have met their burden, the onus shifts to the plaintiff to show there are grounds to believe the claim has substantial merit. To meet the merits burden, the plaintiff must be able to show that there is a basis in the record and the law to say that she has a “real prospect” of success: Pointes Protection, at para. 49.
25The term “grounds to believe” means “any basis in the record and law—taking into account the stage of the litigation at which a s. 137.1 motion is brought”: Pointes Protection, at para 39. A “basis in the record and law” will exist even if there is only a single basis: Bent v. Platnick, 2020 SCC 23, 449 DLR (4th) 45, at para. 88 (“Platnick”). The term “substantial merit” means that an action must have “a real prospect of success” and must be “legally tenable and supported by evidence that is reasonably capable of belief”: Pointes Protection, at para. 49.
26In order to surpass this threshold, it is not enough for the plaintiff to show that she has “some chance” or a “possibility” of success. Instead, the plaintiff must show that her claim has a prospect of success that “tends to weigh more in favour of the plaintiff”: Pointes Protection, at para. 50.
27In order to evaluate this test, I must consider the basic elements of a defamation claim:
(i) the defendant published the words complained of;
(ii) the words complained of refer to the plaintiff; and
(iii) the impugned words were defamatory: Grant v. Torstar Corp., at para. 28.
Publication 1
28The first article, dated July 19, 2019, is entitled “Who’s really behind Toronto’s chain of illegal pot shops that just won’t quit?” (“Publication 1”).
29Publication 1 begins by providing factual details about the cannabis dispensaries known as CAFÉ which are unlicensed, and have been closed by police, only to open shortly thereafter in new locations which police have then proceeded to raid and close at least 12 times. It then proceeds to discuss a long association between two individuals, Jon Galvano (“Mr. Galvano”) and Wesley Weber (“Mr. Weber”). It then provides details which link Mr. Galvano and Mr. Weber to CAFÉ including: Mr. Galvano’s posts on Facebook announcing the opening of CAFÉ in 2016; a loan by Mr. Weber to Mr. Galvano in the lead-up to CAFÉ’s opening which helped Mr. Galvano secure the lease; and a picture of Mr. Galvano and Mr. Weber on a plane flying to Jamaica where CAFÉ staff attended a festival. Publication 1 notes that when the Moving Parties telephoned Mr. Galvano to discuss CAFÉ, someone they spoke to stated that Mr. Galvano sold CAFÉ, that “Weber’s precise role in CAFÉ is similarly unclear” and that Mr. Weber denied being a part of the business.
30Ms. Kam alleges that the following statements in Publication 1 are defamatory:
Statement 1: “And Weber’s spouse, real estate agent Michelle Kam, filed incorporation papers and signed property records for the federally registered company that owns CAFÉ’s premises on Bloor Street West. She’s also named as the guarantor of the $1.7 million mortgage on the property. Until last Friday, she served as the director of that registered company.”
Statement 2: “[Weber] is currently facing allegations of illegally soliciting and accepting investments for the digital currency company he founded, where he went by Wesley Kam.”
Statement 3: “[Weber’s] spouse, Michelle Kam, was in 2017 asked under oath in a lawsuit related to the digital currency company: ‘[Do] you agree with me that Mr. Weber has a history of fraud?’ and ‘Do you agree with me that Mr. Weber has a history of lying’ Both times, she answered yes.”
Publication 2
31The second article, dated October 1, 2019, is entitled “Illegal potshop bigwig should get 16 months for securities offence, prosecutor says” (“Publication 2”).
32The immediate focus of Publication 2 was Weber’s sentencing hearing for offences under the Ontario Securities Act, R.S.O. 1990, c. S.5. However, Publication 2 also contained further statements about Weber and Kam’s connections to CAFÉ.
33The headline referred to Weber as an “[i]llegal potshop bigwig”. The subheading referred to Weber as a “main player in Toronto’s CAFÉ chain”. The first sentence identified Weber as “one of the main players behind a high profile chain of illegal Ontario pot shops”. The second sentence identified him as “one of the people behind the CAFÉ chain of unlicensed dispensaries” and included a hyperlink to Publication 1. A few paragraphs later CAFÉ was said to be Weber’s “latest venture”. And in the following paragraph, Weber was referred to as a co-founder of CAFÉ.
34Ms. Kam alleges the following statements in Publication 2 are defamatory:
Statement 4: “Another CAFÉ landlord is a federally numbered company, 10956392 Canada Inc. Weber’s spouse, real estate broker Michelle Kam, filed the incorporation papers and signed property records for the corporation and is also named as the guarantor on its $1.7 million mortgage. Until February, she was the company’s only director.”
Statement 5: “Kam was deeply involved in Incryptex and testified in court in Monday for Weber’s defence, saying he’s a “kind man, a great father, he’s very active, he’s a great guy.”
Statement 6: “An image of Kam identifying her as Weber’s spouse. “Weber’s spouse, real estate broker Michelle Kam.
35Ms. Kam pleads in paragraphs 16, 17 & 18 of the Statement of Claim that the above statements had the following extended meaning:
The defamatory statements were, in their natural and ordinary meaning, having regard to their implication, innuendo, tone and context, false and defamatory of Kam, both personally and professionally. The defamatory statements were made maliciously.
The defamatory statements meant and were understood, or implied, to mean that (a) Kam was married to Wesley Weber (“Weber”), (b) Weber was engaged in criminal or illegal activity by owning and operating CAFÉ, (c) Kam incorporated and directed a company with the intent of assisting Weber’s operation of CAFÉ, (d) Kam guaranteed a $1.7 million dollar mortgage on a property with the intent of assisting Weber’s operation of CAFÉ, (e) Kam removed herself as director of the company with the specific intent of distancing herself from any association of CAFÉ and Weber, and (e) Kam encouraged Weber to mislead others by adopting her surname in “Wesley Kam”.
The defamatory statements complained of gave rise to the implication that Kam was engaged in criminal or illegal activity, aided and abetted criminal or illegal activity, and supported and partnered with criminals.
The elements of defamation
36It is not disputed that Ms. Kam can satisfy the first element of defamation for all six Statements in that the Moving Parties published the articles.
37Statement 2 does not refer to Ms. Kam, and accordingly, with respect to Statement 2, Ms. Kam has not established that she has a real prospect of success. Otherwise, Ms. Kam satisfies the second element of defamation for Statements 1, 3-6.
38With respect to the third element, the consideration of whether the words were defamatory, I must determine:
a. whether, as a matter of law, the published words are capable of bearing the defamatory meanings alleged by the plaintiffs; and if so
b. whether a reasonable person would have understood the words in their defamatory sense: Bernstein v. Poon, 2015 ONSC 155, at para. 43 (“Bernstein”).
39The Moving Parties point out that the two-part test was developed when juries heard defamation actions and that when a judge alone is considering these issues, the judge may consider both parts of the test at the same time. In my view, this is appropriate so as to avoid undue repetition in these reasons.
40In determining the meaning of the impugned statements, all of the circumstances of the case may be considered, including: (a) any reasonable implications the words may bear; (b) the context in which the words were used; (c) the audience to whom the words were published; and (d) the manner in which the words were presented: Bernstein, at para. 45, citing Brown on Defamation, 2nd ed. (Toronto: Carswell, 2014), at pp. 1-44. There “must be a realistic threat that the statement, in its full context, would reduce a reasonable person’s opinion of the plaintiff”: WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 78 (“WIC”). The threshold is a low one: Color Your World Corp. v. Canadian Broadcasting Corp. (1998), 38 O.R. (3d) 97 (Ont. C.A.), at para. 15; Wang v. British Columbia Medical Association, 2013 BCSC 394, at para. 24, aff’d 2014 BCCA 162; WIC, at para 68.
41In making this assessment, courts must bear in mind that “[i]t is unreasonable that when there are a number of good interpretations, the only bad one should be seized upon to give a defamatory sense”: Assessmed Inc. v. Canadian Broadcasting Corporation, at para. 153 (“Assessmed”). The impressions about the content of the publications should be assessed from the perspective of someone who is reasonably thoughtful and informed, rather than someone with an overly fragile sensibility. A degree of common sense must be attributed to viewers: Color Your World Corp. v. Canadian Broadcasting Corp. (1998), 38 O.R. (3d) 97 (Ont. C.A.), at para. 15.
42Brown on Defamation, at 5.3(1)(a), provides many additional useful guidelines with respect to what constitutes defamation as follows:
Generally speaking a court will consider a publication as a whole and not dwell or concentrate on isolated passages. An entire article must be read; articles are to be considered together with any illustrations, pictures viewed with captions, and stories read with their headlines. […]
Context is critical; words may be colored, emphasized or qualified by the context in which they appear. Words not defamatory when viewed alone and in isolation may take on a defamatory meaning when the cumulative effect is viewed in context. On the other hand, statements may be false, abusive and unpleasant but nevertheless not defamatory in light of the context and circumstances in which they appear. […]
It is the broad impression conveyed by the publication that must be considered and not the meaning of each individual word. An over-elaborate analysis is to be avoided. The exercise in determining the range of defamatory meanings “is an exercise in generosity, not parsimony”. […]
In deciding whether a statement is defamatory, one must consider that which is explicitly stated as well as that which is insinuated or implied. A false and malicious insinuation of defamatory wrongdoing is as actionable as a direct, open and positive assertion. Therefore, the ordinary meaning includes not only what is explicitly stated, but any inferences and implications which the words may reasonably bear or fairly attributable to them. It includes not only what is explicitly stated but any inferences and implications which the words reasonably may bear or fairly attributable to them. It includes what a reasonable person would infer from the words. A person is liable not only for what is stated explicitly but for what is insinuated. More often the sting is not so much in the words themselves as in what the ordinary person will infer from them. An inferential meaning is the impression an ordinary, reasonable person would infer from the allegedly defamatory material.
43The main difference between the arguments made by Ms. Kam and the Moving Parties is that Ms. Kam asserts that the appropriate approach when considering whether statements have a defamatory meaning is to consider the implications of the words used in the entire context of the publications, whereas the Moving Parties assert that the court should focus more narrowly on the precise words. In particular, the Moving Parties argue that even implied or inferred or direct meanings must arise from the specific words used. They say the specific words used are not capable of having the extended meanings in the Statement of Claim, and in particular that the words are not capable of involving “some suggestion or intention of wrongdoing on the part of Ms. Kam.” In my view, the Moving Party’s argument ignores the fact that the court’s job is to consider the words in the entire context of the publication as a matter of first impression.
44Although the Moving Parties say that it is unclear on the face of the pleading whether Ms. Kam is relying upon innuendo, Ms. Kam has specifically pleaded that the words resulted in “innuendo” in paragraph 16 of the Statement of Claim and she has specifically pleaded the secondary meaning of the words in paragraphs 17 and 18 of the Claim. In this case, that means that Ms. Kam is confined to the defamatory meanings which she has set out in paragraphs 17 and 18 above: Lawson v. Baines, 2011 BCSC 326, 34 B.C.L.R. (5th) 363, at para. 35.
45I agree with the Moving Parties that outside the context, facts and circumstances set out in Publication 1, each of the alleged defamatory Statements, in isolation from each other, are not capable of bearing any of the defamatory meanings alleged or being understood by a reasonable person to have a defamatory meaning. Indeed, the statements are not even capable of having any negative meaning about Ms. Kam—other than she is married to someone who has been convicted of crimes.
46I also agree that Statements 2 and 3, even in the context of Publication 1 are not capable of the defamatory meanings alleged by Ms. Kam nor would they be understood by a reasonable person to have a defamatory meaning. The fact that Mr. Weber has used Ms. Kam’s last name does not imply that she encourages him to mislead people by doing so and the fact that she is Mr. Weber’s spouse and that he has been involved in criminal activity is not capable of the implication that she is also engaged in criminal activity.
47However, viewed in the entire context of Publication 1, the words used in Statement 1 are capable of the implied meaning or innuendo asserted by Ms. Kam in paragraph 18 of the Statement of Claim, namely that Ms. Kam engaged in criminal or illegal activity, aided and abetted criminal or illegal activity, or supported and partnered with criminals for the following reasons:
a. The title of publication 1 is “Who’s really behind Toronto’s chain of illegal pot shots that won’t quit?”
b. Publication 1 states that CAFÉ is an illegal operation.
c. The only three people noted are Mr. Weber, Mr. Galvano and Ms. Kam.
d. The publication draws attention to Mr. Weber’s involvement in CAFÉ and while not explicitly saying that he is an owner, implies that he is.
e. Statement 1 appears in the following context. It follows a long discussion which sets out the links between Mr. Galvano and Mr. Weber with the following statement appearing immediately before Statement 1 which I will repeat here so that the context is clear:
“Weber features in many photos on Galvano’s Instagram feed, including posts where the pair are shown “flying to a meeting” together or on that trip to Jamaica where CAFÉ staff attended a festival.”
Statement 1: “And Weber’s spouse, real estate agent Michelle Kam, filed the incorporation papers and signed property records for the federally registered company that owns CAFÉ’s premises on Bloor Street West. She’s also named as a guarantor of the $1.7 million mortgage on the property. Until last February, she served as the director of that registered company.”
*Statement 1 is presented in Publication 1 as the coup de gras and linchpin which connects Mr. Webber to CAFÉ’s illegal operations and the point that is being made is that his wife was the landlord and is financially connected to the premises.
f. As noted above, at the conclusion of Publication 1, it notes that landlords are being charged with provincial offences.
48In my view, placing Statement 1 in this context, specifically following a discussion which attempts to link Mr. Weber to Mr. Galvano and to CAFÉ, and using the word “And” at the beginning of Statement 1 is capable of the imputation or innuendo that Ms. Kam is herself directly associated with the illegal operation CAFÉ, that she engaged in criminal or illegal activity, aided and abetted criminal or illegal activity, and supported and partnered with criminals. Indeed, the link between her and CAFÉ in Publication 1 is arguably even more direct than any of the linkages drawn between Mr. Weber and CAFÉ.
49In my view, Statement 4 is capable of the same defamatory meaning as Statement 1 for the same reasons set out above. That is, in the context of a publication which draws links between Mr. Weber and CAFÉ’s illegal operations, the fact that Ms. Kam filed incorporation papers for CAFÉ’s landlord and is named as a guarantor of the mortgage is capable of the implications alleged in paragraph 18 of the Statement of Claim.
50With respect to Statement 5, Publication 2 is specifically about the prosecution and conviction of Mr. Weber for securities offences related to Incrytpex. Therefore, saying that she was heavily involved with this company is also capable of the defamatory meaning alleged.
51With respect to Statement 6, Ms. Kam’s photo appears eight lines below the heading “Long Criminal Record”. In that section of Publication 2, there are details about Mr. Weber’s criminal history and no references to Ms. Kam having one. Immediately below her photo it states: “Weber’s spouse, real estate broker Michelle Kam, told the court Monday that he is a “kind man’ and a ‘great father’”. In my view, the placement of the photo is not capable of having any of the defamatory meanings set out in the Statement of Claim with respect to Ms. Kam. It is clear that the heading “Long Criminal Record” refers to Mr. Weber and the caption under Ms. Kam’s article clarifies why her picture is included.
52The Moving Parties argue that reasonable readers would not have understood the Statements in the defamatory sense set out in the claim (or otherwise). They say that the Statements described certain discrete acts that Ms. Kam carried out without any reference to her intention. They say that no reasonable person would read those statements and impute to Ms. Kam the type of intent alleged in the claim. They say Ms. Kam has failed to show, as she must, that the ordinary viewer, “ignorant of special or extraneous circumstances” would have understood the words to carry a defamatory implication about them: Merling v Southam Inc. et al, [2001] O.J. No. 4227, at para. 26.
53I note that the Moving Parties take the position in this motion that the references to Ms. Kam must be read in light of the context and seen for what they are: “instances of circumstantial evidence that link Mr. Weber to some role in CAFÉ. They do not impugn or deal with Ms. Kam’s intentions or conduct at all.” While the Moving Parties concede that circumstantial evidence of Ms. Kam’s relationship to the landlord links Mr. Weber to a role in CAFÉ (presumably because he is her husband), they deny that that very same circumstantial evidence could tie Ms. Kam to CAFÉ’s illegal operations.
54As well, although the Moving Parties say that “there are no inferences which can be drawn from [the statements made] about Ms. Kam’s involvement in CAFÉ or her intentions”, at the same time, for the purposes of this anti-SLAPP motion, they say in their factum that Ms. Kam is trying to stifle “all expression that could be considered to make connections between her and CAFÉ.” The Moving Party’s own argument about why this is an anti-SLAPP suit contradicts its argument that there is nothing in the publications that connects Ms. Kam to the illegal operations of CAFÉ.
55Bearing in mind that this is a screening motion, that I am not determining whether or not Ms. Kam has a winning case, and the low threshold for a finding that a statement is defamatory, I am satisfied that on the record before me, Ms. Kam has established that there is substantial merit to her claim that Statements 1, 4 and 5 are capable of the defamatory meanings alleged and that a reasonable reader would understand them in the defamatory sense that she is involved in the illegal activities carried on by CAFÉ (as pleaded in paragraph 18 of the Claim), and that this would tend to lower her reputation in the minds of right thinking persons.
Valid defences
56The second prong of s. 137.1(4)(a) requires Ms. Kam to show that that there are “grounds to believe that the defences have no real prospect of success”: Pointes Protection, at para. 60. This means that there must be a basis in the record and the law—taking into account the stage of the proceeding—to support a finding that the defences asserted do not tend to weigh more in favour of the defendants: Platnick, at para. 103.
57In Subway Franchise Systems of Canada v. Canadian Broadcasting Corporation, 2021 ONCA 26 (“Subway”), the Court of Appeal cautioned that the motions judge should not assess these defences as though it is the ultimate trier of fact. Because anti-SLAPP motions are brought at an early stage and are meant to weed out clearly defective claims, the Court of Appeal described at paras. 54-55 how the judge should do a limited assessment of the evidence.
“Grounds to believe” means “something more than mere suspicion, but less than … proof on a balance of probabilities….
Given the early stage of the proceeding, that damage assessment can be an ongoing process, and that such motions are meant to weed out clearly defective claims, there is only a limited assessment of the evidence from the motion judge’s perspective. Pointes, para 39. If the motion record raises serious credibility issues or inferences to be drawn from competing primary facts, the motion judge must avoid taking a “deep dive” into the ultimate merits and instead, engage in a much more limited analysis: Pointes (CA), at para 78. [Citations omitted.]
58Further, if the defence could go either way, then this supports the plaintiff: Subway, at para, 56.
Justification
59The Moving Parties assert that the facts set out in Statements 1, 4 and 5 are accurate. Ms. Kam argues that this is insufficient to establish the defence of justification; the Moving Parties must prove the substantial truth of the “sting”, or the main thrust, of the defamation. In other words, “the defence of justification will fail if the publication in issue is shown to have contained only accurate facts but the sting of the libel is not shown to be true”: Platnick at para 107.
60I have found that there is substantial merit to Ms. Kam’s argument that the words used are capable of having and would be understood by a reasonable reader to have the defamatory meaning or implication that Ms. Kam was engaged in criminal or illegal activity, aided and abetted criminal or illegal activity, or supported and partnered with criminals.
61The Moving Parties have not attempted to argue that this implication is true and as such, in my view, this defence does not tend to weigh more in favour of the Moving Parties.
Limitation Period
62The Moving Parties assert that claims relating to Publication 2 are statute barred because of Ms. Kam’s failure to serve a Notice of Libel in accordance with s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12 (the “LSA”), which provides notice requirements in respect of alleged defamation in “broadcasts.” Siddiqui v. Canadian Broadcasting Corporation (2000), 50 O.R. (3d) 607 (Ont. C.A.), at paras 10 & 16 (“Siddiqui), Brown on Defamation, 17.3(2)(b)(i), 17.3(2)(b)(ii).
63Ms. Kam argues that Publication 2 cannot be considered a “broadcast” and therefore no notice was required. It is admitted that the law on whether the limitation period in the LSA applies to internet broadcasts that are not also radio and/or television broadcasts is not settled.
64“Broadcast” is defined in s. 1(1) of the LSA as “the dissemination of writing, signs, signals, pictures and sounds of all kinds, intended to be received by the public either directly or through the medium of relay stations, by means of, (a) any form of wireless radioelectric communication utilizing Hertzian waves, including radiotelegraph and radiotelephone, or (b) cables, wires, fibre-optic linkages or laser beams.”
65The Moving Parties argue that the evidence on this motion establishes that the publications on the CBC’s website satisfy the definition of “broadcast” under s. 1(1). In particular, both Publication 1 and 2 were transmitted from a CBC web server located in Toronto, to relay stations hosted by a third party located throughout Canada, including in Ontario. CBC’s web server is connected to these relay stations by fibre optic cable. These articles are then disseminated from the relay stations to members of the public through either wireless radioelectric communication (i.e. WiFi) or through a fibre optic connection.
66Ms. Kam argues that the described system is not a broadcast network, but a network of web servers that store a copy of an article on its memory, which is then retrieved when a reader makes a request. She argues (without evidence) that web servers are essentially computers. If they are broadcasts, then a computer or a laptop or a cellphone could also be a broadcast station. She argues that while the Moving Parties have filed evidence on the way the system works, this concept does not fit well within the traditional definition of a “broadcast” and given the early stage of this motion, it is premature to consider this issue. As well, if web servers can constitute broadcast stations, she asks where the libel notice under s. 8(3) should be sent given that web servers do not have an address.
67In John v. Ballingall, 2017 ONCA 579, at para. 24, the Court of Appeal confirmed that the LSA must be interpreted in a manner that allows for its application to advances in technology that did not exist when the legislation was first enacted. In that case, for example, the Court of Appeal confirmed that the limitation period for newspapers applied equally to online newspapers. Similarly, in Janssen-Ortho Inc v. Amgen Canada Inc., 256 D.L.R. (4th) 407, at para. 41, the Court of Appeal confirmed that “broadcast” in the LSA includes radio broadcasts over the internet.
68Despite the strong legal arguments advanced by the Moving Parties, the plaintiff must only demonstrate grounds to believe that this defence has no real prospect of success, or does not tend to weigh more in favour of the Moving Parties, as opposed to having to demonstrate this on a balance of probabilities. In my view, the fact that law has not yet been conclusively determined on this issue is a basis in the record or grounds to believe that this defence does not tend to weigh more in favour of the Moving Parties. I agree with Ms. Kam that because of the wide ranging implications of a decision in this respect, and the fact that this motion has been brought at a very early stage, determination of this legal issue is best left to a court hearing a case in full so that all contextual features can be taken into account, or at least in the context of a summary judgment motion where the responding party would be required to put forward its best foot. In Nanda v. McEwan, 2019 ONSC 125, at para. 84, the Divisional Court considered an appeal of a decision which held that statements made on social media platforms constituted “broadcasts”. The Divisional Court stated:
While I agree that it may be possible to engage in judicial interpretation of “broadcast”, particularly in light of the expanding use of social media and internet applications/services, in my view, the application of judicial interpretation to the facts of this case must be based on a proper and complete record.
69To put it another way, in my view, it would not be in line with the purpose of the anti-SLAPP provisions, which are designed to weed out clearly defective claims, to dismiss a claim on the basis of a legal issue which has not yet been conclusively determined on a full record on a balance of probabilities. While the law favours the Moving Parties in respect of this issue, it is not my role to weigh into the merits at this stage, which, in my view, this would involve.
Responsible Communication
70In Grant v. Torstar Corp., the Supreme Court recognized, at para. 98, the responsible communication defence to further the policy interests in favour of democratic discourse and truth finding. In order to advance those policies, this defence focuses on the conduct of the defendant and applies even if the statements at issue cannot be proven to be true: Grant v. Torstar Corp., at paras. 55, 60, 65. There is a two-part test for its application: (i) the publication in question must be on a matter of public interest; and (ii) the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegations, having regard to the relevant circumstances: Grant v. Torstar Corp., at para 98.
71In Grant v. Torstar Corp., at para 101, the Supreme Court indicated that to ascertain whether a publication is a matter of public interest, “the judge must consider the subject matter of the publication as a whole. The defamatory statement should not be scrutinized in isolation.” I have already addressed and found that the subject matter of the publications was a matter of public interest above.
72With respect to the second branch of the test for the responsible communication defence, the Supreme Court provided a non-exhaustive list of contextual factors for courts to consider when assessing the responsibility of a defendant’s conduct which I review below: Grant v. Torstar Corp., at paras. 116-124.
73I note that there is no factual dispute between the parties as to what the Moving Parties did to verify the details of the publications and there are no credibility issues which arise in relation to this issue. Ms. Kam’s submissions are essentially argument based upon undisputed facts.
Seriousness of the allegations
74Publications of allegations of criminality or illegal conduct are considered the most serious and will demand more thorough efforts at verification: Grant v. Torstar Corp., at para. 111. Ms. Kam argues that there were insufficient attempts to verify the “defamatory sting” or implication that she is involved in criminal activity.
75Even though the implication of the publications is serious, Ms. Kam has not taken any issue with the actual facts reported about her being inaccurate. She is Mr. Weber’s wife. She did incorporate CAFÉ’s landlord. She was a director of CAFÉ’s landlord. She did guarantee a $1.7 million mortgage. In my view, the accuracy of these underlying facts, while not sufficient to establish the defence of justification, is nevertheless critical to the defence of responsible communication in this case.
76Indeed, one of the reasons the new defence of responsible communication was recognized in Grant v. Torstar Corp. was the concern that the defence of justification is very difficult to establish (at para. 33) and that productive debate in society depends upon the free flow of information:
77If publishers could not report true facts which they have verified, particularly where the object of inquiry refuses to give her side (as will be seen below), it would be the end of investigative journalism. The Supreme Court has observed that investigative journalism fills a “democratic deficit in the transparency and accountability of our public institutions”: R. v. National Post, 2010 SCC 16, at para. 55.
78Further, although Ms. Kam argues that the Moving Parties did not do enough to verify the implication of criminal activity, she does not point out what more they could have done—apart from perhaps not writing the articles at all or not making any reference to her. As will be seen, the Moving Parties took substantial steps to verify the facts in the publications.
Whether the plaintiff’s side of the story was sought
79Ms. Kam argues that the Moving Parties did not make a serious attempt to obtain her side of the story. However, the record shows that Mr. Dubinsky made many attempts to do so. On July 16, 2019, he telephoned Ms. Kam’s cell phone and identified himself and the purpose of the call. She interjected and stated that the phone line was “cutting out” and ultimately terminated the call. He tried again immediately thereafter, and the call went to voicemail. He left a message and asked her to call him back. Later in the evening he tried to call her again and an unidentified person answered and told him that Ms. Kam was busy; Mr. Dubinsky formed the impression that the person who answered the phone had the same voice as Ms. Kam. He advised that his call was urgent and asked for Ms. Kam to telephone him back. She did not telephone him back.
80Accordingly, at 7:43 p.m. on the same day, Mr. Dubinsky sent Ms. Kam the following email:
Hi Michelle, I've been trying to reach you by phone today to no avail. I'm a journalist at the CBC. Together with a couple colleagues, we intend to report on CAFÉ in the near future. A significant thread of our reports will be to try to tell a balanced story, capturing multiple perspectives (law enforcement, customers, dispensary operators), that looks at the current cannabis climate/"regime", its shortcomings, CAFÉ's place in that, etc. But among the things we will note is that CAFÉ is nevertheless unlicensed and thus, by current law, illegal. We will likely also note that you incorporated the numbered company that owns the 932 Bloor West property where CAFÉ has a branch, and served as a director of that company until February. You are also the guarantor on the mortgage for the property. Our stories may also note your relationship with another individual involved in CAFÉ, Wesley Weber; the lawsuit you are both currently facing from Sheroy Irani (noting, of course, that the claims therein have not been proven in court); and some of the evidence that arises in that lawsuit -- for instance, your offshore account in St. Lucia and why you set it up. This is not an exhaustive list CAFÉ has already provided a statement to us and we're hoping for further comments from it. We want to extend the opportunity to you as well to add any perspective or context you may wish, or to be interviewed about all this. Please feel free to email me or call me anytime at 416-205-7553. Sincerely, Zach Dubinsky CBC News
81Ms. Kam says that Mr. Dubinsky’s email was misleading because it omitted that Publication 1 would suggest that Mr. Weber is the owner of CAFÉ and Ms. Kam, as Mr. Weber’s spouse, assisted Mr. Weber’s business through her involvement in CAFÉ’s landlord’s purchase of 932 Bloor Street West—where CAFÉ is located.
82I disagree with Ms. Kam’s characterization. The email from Mr. Dubinsky set out all of the specific facts which they intended to cover which are then set out in Statement 1 in Publication 1. I have underlined this in the email above. The email told Ms. Kam exactly which details about her could be reported.
83Even after the above email, Mr. Dubinsky made a further attempt to reach Ms. Kam on July 18, 2019 by telephoning her. The call went to voicemail and he did not leave a further message because he had already left her a message which had not been returned.
84With respect to Publication 2, at that point, Ms. Kam had already initiated her lawsuit against the Moving Parties. Mr. Dubinsky attempted to speak to Ms. Kam sometime during the day of Mr. Weber’s sentencing and she refused to engage with him. Later that day, following the sentencing, he approached both Ms. Kam and Mr. Weber again. Mr. Weber briefly commented to reject the premise of a question but neither of them responded to any further questions. As they exited the courtroom with someone who Mr. Dubinsky believed to be a bodyguard following behind them and blocking his path, he once again requested to interview them about matters related to CAFÉ and they did not reply but the person following behind them said “I think you have your answer.” In light of Ms. Kam and Mr. Weber’s previous refusal to provide information when sought in respect of Publication 1 and these two refusals on the day of Mr. Weber’s sentencing, Mr. Dubinsky concluded that they would not be responding to any request for information and he respected their wishes. In my view, this was a reasonable conclusion.
85Ms. Kam complains that Mr. Dubinsky did not do anything more than ask her questions, did not tell her that the Publication 2 would repeat the same allegations as Publication 1, that there would be repeated references to Mr. Weber and that her picture would appear. When cross-examined, Ms. Kam admitted that she refused to speak to Mr. Dubinsky because her lawyer had told her not to communicate with the Moving Parties. Accordingly, no matter what efforts the Moving Parties made, they would have been futile.
86Mr. Dubinsky also made several attempts to communicate with Mr. Galvano, Mr. Weber and to CAFÉ by telephone, email and text message offering them the opportunity to comment or respond prior to the publications and they did not. Importantly, the email sent to Mr. Weber prior to Publication 1 specifically noted the publication would be about him and his connection to CAFÉ and that he was an owner.
Status and reliability of sources
87In Grant v. Torstar Corp., at para. 114, the Supreme Court directed that where less trusted sources are used, there is a greater requirement that the publisher use other sources to verify the allegations. Ms. Kam asserts that it is relevant that the Moving Parties’ investigation was triggered by information by a confidential source from Mr. Weber and Ms. Kam’s past. First, there were in fact two confidential sources. The first confidential informant, which triggered the investigation, had nothing to do with Ms. Weber and Mr. Kam. Although the facts provided by that confidential informant could not be substantiated, it led the Moving Parties to CAFÉ. The second confidential informant is reported in Publication 1 to have said that “it was well known around the office, back in CAFÉ’s early days, that Weber was involved and that he boasted of it.”
88The information from the second confidential informant was not the main basis for either publication. Mr. Dubinsky and Ms. Mayor conducted an exhaustive investigation into these matters, over several months, including researching and reviewing internet and social media sites, corporate profile reports, incorporation documents, municipal tax rolls and land titles searches for companies associated with CAFÉ, as well as court documents relating Ms. Kam and Mr. Weber. After Mr. Dubinsky and Ms. Mayor drafted the articles, two sets of editors vetted them before they were published.
89I fail to see why it matters that their second confidential source was someone who knew Mr. Weber and Ms. Kam particularly since the overwhelming bulk of the information in the publications arose from these other investigations based upon primary documents.
Whether inclusion of statements was justifiable
90In Grant v. Torstar Corp., at para. 118, the Supreme Court indicated that in applying this factor, the trier of fact should “take into account that the decision to include a particular statement may involve a variety of considerations and engage editorial choice which should be granted generous scope.”
91Ms. Kam argues that the information included was not justifiable because at its core, the Statements sought to connect Ms. Kam to Mr. Weber as complicit in his illegal operation of CAFÉ. She also complains that the publications did not make references to other individuals who may have been associated with CAFÉ.
92In my view, the allegedly defamatory statements were necessary to communicate the regulatory failings in the cannabis industry, a clear matter of public interest. It is relevant that all of the facts asserted about Ms. Kam were accurate. Statements 1, 4 and 5 were necessary facts and circumstantial evidence which connected Mr. Weber, someone with a historical past of committing criminal and regulatory offences, to CAFÉ. With respect to the references to her involvement with Incryptex, and/or the Moving Parties’ decisions to not include details relating to other individuals, in my view, these were editorial choices which should be granted generous scope.
Omitted facts
93Ms. Kam also argues that where important exculpatory details are omitted from a defamatory publication, the defense of responsible communication may not be available: Bondfield Construction Co. v. The Globe and Mail, 2018 ONSC 1880, at paras. 57-69, aff’d 2019 ONCA 166, at para. 18.
94Ms. Kam argues in her factum that Publication 1 failed to note that the company she incorporated became a CAFÉ landlord after her resignation as director. Publication 2 fails to note Kam’s resignation at all, leaving open the inference that she remained a director. I note that she does not reference this issue in her affidavit. Mr. Dubinsky explained that they did not mention these facts because Ms. Kam ceased to be a director at approximately the same time as CAFÉ opened. There would have to have been renovations and preparations for CAFÉ’s opening which would have commenced well before Ms. Kam ceased to be a director. In this proceeding Ms. Kam refused to produce a copy of the lease agreement for CAFÉ which she had a right to as a guarantor of the mortgage. This lease agreement could have definitively demonstrated that the lease was entered into after she ceased to be a director. Given this refusal, in my view, the issue raised by Ms. Kam here is a red herring.
95In any event, in my view, the omitted details are subtle nuances which would be unlikely to affect any reader’s interpretation of the publications particularly since even after she ceased to be a director, she was still a guarantor of the mortgage.
96It must be remembered that the responsible communication defence is not a standard of perfect communication: Grant v. Torstar Corp., at para. 62.
Conclusion re s. 137.1(4)(a)
97In all the circumstances, I find that Ms. Kam has failed to demonstrate that their grounds to believe that there is a basis in the record to support the proposition that the Moving Parties have no valid defence of responsible communication to this litigation. In other words, she has failed to demonstrate a basis in the record and the law to support a finding that the defence of responsible communication does not tend to weigh more in the Moving Parties’ favour. Therefore, the Moving Parties’ motion is successful and the action is dismissed, but in the event I am wrong, I will proceed to consider the public interest hurdle.
S. 137.1(4)(b) Public Interest Hurdle
98The third branch of section 137.1(4)(b) which is whether the harm “likely to be suffered” by Ms. Kam is sufficiently serious such that the public interest in allowing the proceeding to continue outweighs the public interest in protecting that expression.
99As directed by the Supreme Court in Pointes Protection at para. 62:
[…] s. 137.1(4)(b) open-endedly engages with the overarching concern that this statute, and anti-SLAPP legislation generally, seek to address by assessing the public interest and participation implications. In this way, s. 137.1(4)(b) is the key portion of the s. 137.1 analysis, as it serves as a robust backstop for motion judges to dismiss even technically meritorious claims if the public interest in protecting the expression that gives rise to the proceeding outweighs the public interest in allowing the proceeding to continue.
100This is the “crux” or the “core” of the s. 137.1 analysis: Pointes Protection, at para. 62. It provides the courts with the ability to assess “what is really going on in a particular case before them”: Pointes Protection, at para. 81. The burden is on Ms. Kam to show (a) that she likely has or will have suffered harm and (b) that such harm is as a result of the Defamatory Statements, and (c) that the public interest in allowing the action to proceed outweighs the public interest in protecting the Defamatory Statements: Pointes Protection, at para. 62.
101The analysis is essentially a weighing exercise.
Motion for leave to file additional affidavit material related to s. 137.1(4)(b)
102Ms. Kam brought a motion to file an additional affidavit after cross-examinations, which sets out additional harm that she has suffered as a result of the allegedly defamatory statements. In particular, on November 21, 2020 she discovered that there had been a photograph of her taped to one of the stairwells of her condominium building with a note that stated “BOARD MEMBERS WITH NO CHARACTER OR INTEGRITY. VOTE THEM OUT.” Below her picture there were references to the titles of the Publications and a suggestion that readers find them and read them. The Moving Parties opposed this motion.
103Rule 39.02(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides:
A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing … without leave or consent and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit … [Emphasis added.]
104In Nexim Health Care Consultants Inc v. Yacoob, 2018 ONSC 91, Master Jolley stated as follows:
The four part test for granting leave is set out in First Capital Realty Inc. v. Centrecorp. Management Services Ltd. 2009 CarswellOnt 6914 (Div. Ct.): (1) is the evidence relevant; (2) does the evidence respond to a matter raised on the cross examination, not necessarily raised for the first time; (3) would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms or an adjournment; and (4) did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset. A flexible, contextual approach is to be taken in assessing the criteria relevant to rule 39.02(2) having regard to the overriding principle outlined in Rule 1.04 that the rules are to be interpreted liberally to ensure a just, timely resolution of the dispute. An overly rigid interpretation can lead to unfairness by punishing a litigant for an oversight of counsel. As stated by Master Muir in Mars Canada Inc. v. Bemco Cash and Carry Inc. 2015 ONSC 8078 at paragraph 10, “In my respectful view, the court should avoid a rigid interpretation of Rule 39.02. The flexible, contextual approach is to be preferred.” As noted in P.M. Perell & J.W. Morden, The Law of Civil Procedure in Ontario, commenting on First Capital Realty and quoted in Shah v. LG Chem, Ltd. 2015 ONSC 776, “the Divisional Court held that all the criteria should be weighed and no one criterion was determinative.”
105In all the circumstances, I am satisfied that the evidence is relevant, that it could not have been obtained before and that it should be admitted, in particular given that it relates to the fate of Ms. Kam’s proceeding. Ms. Kam offered to adjourn the motion to permit the Moving Parties to respond and/or cross-examine and they did not wish to.
Harm
106The Moving Parties argue that Ms. Kam cannot prove that the harm she alleges was caused by the Statements in question. They say that the harm she describes including the damage to her reputation is because she is married to someone with a known criminal record. However, in Pointes Protection, at para. 71, the Supreme Court made clear that causation is not required: “the plaintiff need not prove harm or causation, but must simply provide evidence for the motion judge to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link.”
107Although part of the harm alleged likely relates to public knowledge about her being married to someone with a history of criminal and regulatory offences, I am satisfied that Ms. Kam has provided evidence from which I can infer that she likely has or will have suffered harm as a result of the Statements in question as follows:
a. First, in a defamation action, harm (and therefore general damages) are presumed: Pointes Protection, at para 71. She is a commercial real estate agent and implications of criminal conduct related to land transactions would likely have a significant effect on her reputation.
b. Ms. Kam’s real estate brokerage is located in a downtown area known as CityPlace community. CityPlace community has a residents association which she joined to deepen her involvement in the community. She also joined the Board. There have been postings on Facebook in a public group called “CityPlace uncensored” related to her actively advancing CAFÉ’s interests in the context of an upcoming Board of Directors election for the residents association. Ms. Kam’s position on the Board was up for re-election but she decided not to run because of the complaints and posts about her relationship to CAFÉ.
c. After the publications, Ms. Kam received a letter from the Bank of Montreal advising that it would be ending its relationship with her because her personal and/or business activities fall outside its risk appetite.
d. When Google searches are conducted of Ms. Kam’s name, the publications are among the top three search results, ensuring that her online identity and reputation will continue to reference CAFÉ.
[Pursuant to the Order of Justice Pinto dated October 5, 2020 there are subparagraphs relating to the harm suffered by Ms. Kam which form a part of paragraph 107 which are set out in Schedule “A” hereto and which are permanently sealed and may not be disseminated, published, broadcasted, disclosed or transmitted in any manner.]
108The purpose of s. 137.1 is not to conduct a trial of the matter, but rather to quickly identify strategic lawsuits and stop abusive litigation. The assessment of harm must take this into account. I am satisfied that even if there are other aspects of Ms. Kam’s life that may have also contributed to the harms she alleges, she has provided sufficient evidence from which I can draw the necessary inferences. I note as well that she says that she did not experience anything similar to the above prior to the publications, despite the fact that Mr. Weber has a well-known and public history of criminal and regulatory offences.
Does the harm outweigh the public interest in the expression?
109First, the record does not support that this action has all the hallmarks of an anti-SLAPP suit which the court may take into account as long as these considerations are tethered to the considerations contemplated by s 137.1(4)(b): Pointes Protection, at para. 78. There is no financial or power imbalance that strongly favours Ms. Kam. The record does not support that Ms. Kam is vindictively or strategically attempting to silence the Moving Parties. The damages suffered are not minimal. While Ms. Kam has brought proceedings against others, these have all been in respect of republishing the same Statements which she alleges are defamatory. She has no history of using litigation or the threat of litigation to silence critics before the Publications.
110In my view, at this early stage there is evidence of significant reputational and financial harm and Ms. Kam’s action is an attempt to recover for that harm.
111If I had not concluded that the defence of responsible communication weighed more in favour of the Moving Parties, I would have concluded that the public interest in reporting on what is happening in the cannabis industry does not outweigh the public interest in allowing this action to proceed. Ms. Kam has described significant harm, some of which is sealed by Court Order. The reputational harm, given that it is now part of her internet identity, is significant and the sting of the defamation has been republished by others which should have been reasonably foreseeable to the Moving Parties. In my view, because the potential criminal imputations are serious, the harm alleged lies at the high end of the spectrum and so too would the public interest in allowing the action to proceed.
112Further, permitting the action to proceed, if the defence of responsible communication did not weigh more in favour of the Moving Parties, would not deter individuals from reporting on important matters of public interest like what is going on in the cannabis industry; it would deter them from publishing statements without responsibly substantiating the veracity.
113However, given that Ms. Kam has not satisfied her burden under s. 137.1(4)(a)(ii), I am dismissing this action pursuant to s. 137.1(3) which is mandatory in these circumstances.
Refusals motion
114As noted above, there was a motion brought by Ms. Kam relating to refusals which I dismissed at the outset of the motion with reasons to follow. Ms. Kam sought answers to the following questions:
a. In respect of Mr. LeGrand’s cross-examination, question 21: to advise of the exact location of the Microsoft Azure servers that are used by the Toronto CBC journalists that drafted the articles in question. Mr. LeGrand had provided evidence on how the articles were published online and were transferred as electronic data through various web servers to become publicly accessible;
b. In respect of Mr. Mayor’s cross-examination:
i. Question 94: to produce the drafts of both Article 1 and Article 2.
ii. Question 25 and 50: to disclose the content of the tip from the confidential source that triggered the defendants’ investigation into the plaintiff; and
115The answer to Refusal “a” was already provided to Ms. Kam on October 30, 2020 without prejudice to the Moving Party’s ability to argue in the anti-SLAPP motion that the information is not relevant. As such, Ms. Kam has not raised any justiciable issue with respect to this refusal.
116With respect to the Refusal “b(i.)” the Moving Parties submitted the drafts to counsel for their review prior to publication. The draft constitutes part of the chain of communication between the Moving Parties and their counsel. Production of the draft if compared to the final version, could disclose legal advice given. I agree that in such circumstances these drafts are privileged: Cusson v. Quan, at paras. 12-14.
117With respect to Refusal “b(ii)”, the witness Ms. Mayor objected on the basis of privilege indicating that disclosure of the information would reveal the identity of the source and she was not cross-examined any further on the issue.
118Journalist source privilege is a case-by-case privilege, which applies where the well-known Wigmore criteria are made out: Globe and Mail v. Canada (Attorney General), 2010 SCC 41, [2010] 2 S.C.R. 592, at para. 26 (“Globe and Mail”). The claimant must show: (1) the relationship originates in a confidence that the source’s identity will not be disclosed; (2) anonymity is essential to the relationship in which the communication arises; (3) the relationship is one that should be sedulously fostered in the public interest; and (4) the public interest served by protecting the identity of the informant outweighs the public interest in getting at the truth: Globe and Mail, at para. 22.
119The first three Wigmore criteria are satisfied through Ms. Mayor’s evidence.
120In this case, the public interest in protecting the identity of the informant heavily outweighs any public interest in disclosing the information. Individuals who come forward to disclose sensitive information to credible, respected media organizations like the CBC, and do so based on a promise of confidentiality, are entitled to trust and expect that such an undertaking will be upheld: R v. National Post, at para. 30, R. v. Vice Media, 2018 SCC 53, [2018] 2 S.C.R. 374, at para. 26.
121In my view, Ms. Kam did not provide any rationale to justify violating the trust at the core of the relationship in particular because of the minimal relevance to the issues in this motion; the original tip was not about Ms. Kam or Mr. Weber, could not be substantiated and that after it came in and the Moving Parties started to investigate it, the story evolved in a different direction such that they ended up reporting on a story with a different focus. Accordingly, the motion regarding refusals was dismissed.
122In summary, this action is dismissed pursuant to s. 137.1 of the CJA. The parties may make submissions on costs as follows:
a. The Moving parties within 7 days of these reasons in writing, no longer than 4 pages;
b. Ms. Kam, within 7 days thereafter in writing, no longer than 4 pages.
Released: March 3, 2021 Papageorgiou J.