CITATION: Fromm v. Warman, 2008 ONCA 842

DATE: 20081212

DOCKET: C48100

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Moldaver and Goudge JJ.A.

BETWEEN:

Paul Fromm and Canadian Association for Free Expression Inc.

Appellants

and

Richard Warman

Respondent

Barbara Kulaszka for the appellants Paul Fromm and Canadian Association for Free Expression Inc.

Pam MacEachern for the respondent Richard Warman

Heard and endorsed: December 9, 2008

On appeal from the judgment of Justice Monique Metivier of the Superior Court of Justice dated November 23, 2007.

APPEAL BOOK ENDORSEMENT

[1] In our view the statements complained of are clearly capable of being defamatory of the respondent. The trial judge went on to determine that as a matter of fact they are defamatory of the respondent and there is no basis for us to interfere with that finding.

[2] As to the defence of fair comment we agree with the trial judge that it is impossible to distinguish what might be opinion and what might be fact. The appellant is unable to show that the statements complained of are opinion. The trial judge’s use of the word the appellants “comment” is nothing more than the assertion that what is complained of is the appellant’s statements.

[3] Without addressing all the other criteria of the defence, it is clear to us that the trial judge’s finding of malice is soundly based in the evidence. There is no basis to interfere with it, and the defence fails.

[4] The appeal must be dismissed. Costs to the respondent in the sum of $10,000 all inclusive.