Baglow a.k.a. "Dr. Dawg" v. Smith a.k.a. "Peter O'Donnell" et al. [Indexed as: Baglow v. Smith]
110 O.R. (3d) 481
2012 ONCA 407
Court of Appeal for Ontario,
Goudge, Sharpe and Blair JJ.A.
June 14, 2012
Torts -- Defamation -- Summary judgment -- Plaintiff bringing defamation action under simplified procedure after he was described as "one of the Taliban's more vocal supporters" during altercation on political blog -- Motion judge erring in granting summary judgment dismissing action -- Whether impugned words were capable of being defamatory and were in fact defamatory and whether defence of fair comment was made out were issues that could only be determined at trial -- Case raising important and novel issues respecting application of law of defamation to blogosphere that should not be determined on motion for summary judgment.
The plaintiff owned and operated a left-wing political blog. During an exchange concerning the validity of the detention of Omar Khadr in Guantanamo Bay, the defendant S posted a comment on the other defendants' right-wing blog describing the plaintiff as "one of the Taliban's more vocal supporters". The plaintiff brought a defamation action under the simplified procedure. The motion judge granted the defendants' motion for summary judgment dismissing the action. He held that no genuine issue for trial arose with respect to any of the issues; that the impugned words were not capable of being defamatory of the plaintiff because they amounted to comment or a statement of opinion rather than a statement of fact, and therefore had a diminished tendency to lower the reputation of the plaintiff in the eyes of a reasonable reader; that the impugned words were not in fact defamatory because they lacked the sting of libel in the context of a political blog where insults were regularly treated as part of the give-and-take of debate; and that, in any event, the defence of fair comment applied. The plaintiff appealed.
Held, the appeal should be allowed.
The motion judge erred in granting summary judgment. The issues raised in this action were important because they arose in the relatively novel milieu of Internet defamation in the political blogosphere. They were not issues that lent themselves to determination on a motion for summary judgment, particularly where the action was being processed in the simplified procedure regime. Novel questions of law or of mixed law and fact in defamation matters ought generally to be determined at a trial.
APPEAL by the plaintiff from the summary judgment of Annis J. (2011), 107 O.R. (3d) 169, [2011] O.J. No. 3886, 2011 ONSC 5131 (S.C.J.) dismissing the action.
Cases referred to Cherneskey v. Armadale Publishers Ltd., 1978 CanLII 20 (SCC), [1979] 1 S.C.R. 1067, [1978] S.C.J. No. 115, 90 D.L.R. (3d) 321, 24 N.R. 271, [1978] 6 W.W.R. 618, 7 C.C.L.T. 69, [1978] 3 A.C.W.S. 372; Combined Air Mechanical Services Inc. v. Flesch (2011), 108 O.R. (3d) 1, [2011] O.J. No. 5431, [2011 ONCA 764](https://www.canlii.org/en/on/on