New Dermamed Inc. v. Sulaiman
[Indexed as: New Dermamed Inc. v. Sulaiman]
Ontario Reports Court of Appeal for Ontario Doherty, Pardu and Nordheimer JJ.A. February 25, 2019
144 O.R. (3d) 721 | 2019 ONCA 141
Case Summary
Civil procedure — Summary dismissal of action — Plaintiff suing defendant for damages for defamation after defendant posted reviews on-line stating that dermatological treatments by plaintiff resulted in loss of volume to her face — Motion judge dismissing action pursuant to s. 137.1 of Courts of Justice Act — Motion judge erroneously interpreting s. 137.1(4)(a)(ii) of Courts of Justice Act as requiring plaintiff to show that defence of fair comment could not succeed — Plaintiff only required to show that it was reasonably possible that trier could conclude that defence would not succeed — Plaintiff meeting onus under s. 137.1(4)(a)(ii) as reasonable trier could conclude that defendant's claim of volume loss was statement of fact — Action properly dismissed as plaintiff failed to establish that any harm it suffered was sufficiently serious that public interest in permitting proceeding to continue outweighed public interest in protecting defendant's expression — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1.
The defendant obtained laser resurfacing treatments on her cheeks from the plaintiff. After the defendant posted reviews on-line stating that the treatments resulted in volume loss to her face, the plaintiff sued her for damages for defamation. The defendant moved successfully under s. 137.1 of the Courts of Justice Act for summary dismissal of the action. The plaintiff appealed.
Held, the appeal should be dismissed.
The motion judge erroneously interpreted s. 137.1(4)(a)(ii) of the Courts of Justice Act as requiring the plaintiff to show that the defendant's defence of fair comment could not succeed. The plaintiff was only required to show that it was reasonably possible that a trier could conclude that the defence would not succeed. The plaintiff had met its burden under s. 137.1(4)(a)(ii) as a reasonable trier could view the defendant's claims of volume loss to her face as statements of fact, not opinion. However, the action was properly dismissed as the plaintiff had not satisfied the requirement under s. 137.1(4)(b) that it establish that any harm that it had suffered at the hands of the defendant was sufficiently serious that the public interest in permitting the proceeding to continue outweighed the public interest in protecting the defendant's expression.
Cases Referred To
- 1704604 Ontario Ltd. v. Pointes Protection Assn., 2018 ONCA 685
- Brad-Jay Investments Ltd. v. Szijjarto
- Grant v. Torstar Corp., 2009 SCC 61
- WIC Radio Ltd. v. Simpson, 2008 SCC 40
Statutes Referred To
Rules and Regulations Referred To
Procedural History
APPEAL from the order of P. Cavanagh J., [2018] O.J. No. 2134, 2018 ONSC 2517 (S.C.J.) and from the costs order, [2018] O.J. No. 3005, 2018 ONSC 3454 (S.C.J.).
Counsel:
- Ruzbeh Hosseini and Joan Kasozi, for appellant
- J. Sebastian Winny, for respondent
Decision
[1] BY THE COURT: -- New Dermamed Inc. appeals from the order of the motion judge that dismissed its claim pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and ordered costs payable in the amount of $20,000, inclusive of HST and disbursements.
[2] The respondent sought and obtained laser resurfacing treatment on her cheeks from the appellant. The respondent purchased three laser skin resurfacing treatments. After receiving the first treatment, the respondent alleged that she had suffered volume loss to her face. She discontinued the laser resurfacing treatment and replaced her two remaining treatments with a micro-needling treatment. Despite being informed that volume loss is not a side effect of the laser resurfacing treatment she received, the respondent continued to insist that she had suffered volume loss as a result of the treatment.
[3] The respondent wrote and published four different reviews regarding the appellant on a webpage associated with, and maintained by, Google Inc.¹ In her review, the respondent complained that she had experienced volume loss and that her face looked "saggier" and had "melted off". The second, third and fourth reviews were revised versions of the first review. Both the second and third revisions were preceded by letters from the appellant's lawyers complaining that the reviews were false and libelous. The letters insisted that the respondent permanently delete her comments, otherwise she would be sued. While the respondent revised her review, she did not delete it.
[4] The respondent was served with the statement of claim in this action in late November 2017. The action was brought under the simplified procedure -- Rule 76, Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The appellant claimed damages of $500,000.
[5] The motion judge concluded that the comments made by the respondent in her reviews were expressions on a matter of public interest. The motion judge then turned to determine if the exception under s. 137.1(4), to the presumption that the action should be dismissed under s. 137.1(3), applied. The motion judge concluded that it did not because the appellant had failed to establish that the respondent's defence of fair comment was invalid under s. 137.1(4)(a)(ii).
[6] The motion judge heard and decided the s. 137.1 motion before this court released a series of judgments interpreting s. 137.1: see 1704604 Ontario Ltd. v. Pointes Protection Assn., 2018 ONCA 685 (C.A.) and the related cases released simultaneously. As we shall explain, the motion judge applied the wrong test in determining whether the appellant had shown that the respondent had no valid defence to the claim within the meaning of s. 137.1(4)(a)(ii).
[7] The appellant does not now quarrel with the motion judge's conclusion that the comments made by the respondent in her reviews were expressions on a matter of public interest. In any event, the motion judge's conclusion that it was a matter of public interest finds support in the case law. As McLachlin C.J.C. said in Grant v. Torstar Corp., 2009 SCC 61, at paras. 105-106:
The case law on fair comment "is replete with successful fair comment defences on matters ranging from politics to restaurant and book reviews".
The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion and morality. The democratic interest in such wide-ranging public debate must be reflected in the jurisprudence.
(Citations omitted)
[8] Consequently, the action would be presumptively dismissed under s. 137.1(3) unless the appellant could satisfy the court that the exception under s. 137.1(4) applied.
[9] Section 137.1(4) reads:
137.1(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.
[10] The motion judge concluded that the proceeding had substantial merit but that the appellant had failed to establish that the defence of fair comment was invalid. On that point, he found that the reviews were comments or opinions; that there was a sufficient factual basis for the comments; that the appellant had failed to show that no person in the respondent's circumstances could have honestly held the opinions that she expressed; and that the respondent had not made the comments out of malice.
[11] In reaching his conclusion, the motion judge interpreted the onus on the appellant under s. 137.1(4)(a)(ii) as requiring the appellant to show that the defence of fair comment could not succeed: at paras. 38-40. That is not the onus that was on the appellant as this court's decision in Pointes now makes clear. As stated in Pointes, at para. 84:
The onus rests on the plaintiff to convince the motion judge that, looking at the motion record through the reasonableness lens, a trier could conclude that none of the defences advanced would succeed. If that assessment is among those reasonably available on the record, the plaintiff has met its onus.
[12] Put another way, the onus on the appellant was not to show that there was no possibility that the defence of fair comment could succeed but, rather, just that it was reasonably possible that a trier could conclude that the defence would not succeed.
[13] We do not agree with the motion judge that a trier could only conclude that the comments made by the respondent were matters of opinion, rather than matters of fact. Having regard to the entirety of the respondent's comments, and the context in which they were made, we are satisfied that a reasonable trier could conclude that she was stating facts and not opinions. Specifically, a reasonable trier could view her claims of volume loss in her face, as a result of the laser treatments, as statements of fact. If a trier concluded that the respondent was making a factual assertion, then the defence of fair comment would not be available: WIC Radio Ltd. v. Simpson, 2008 SCC 40, at paras. 26-28. Consequently, the appellant had met its burden under s. 137.1(4)(a)(ii).
[14] However, that conclusion does not lead to a different result in terms of the dismissal of the action because, in our view, the appellant has not satisfied the balancing exercise under s. 137.1(4)(b).
[15] While the appellant has filed evidence of some lost business as a result of the reviews that the respondent posted, it has not provided any quantification of those losses nor identified how those losses relate to its overall business. The appellant has not, therefore, established that any harm that it has suffered at the hands of the respondent is "sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression": see s. 137.1(4)(b).
[16] The action was therefore properly dismissed. We note in passing that the appellant had raised, in its factum, an issue as to whether the procedural constraints inherent in a proceeding under Rule 76 should, in some fashion, affect the analysis under s. 137.1. However, the appellant abandoned that issue at the hearing.
[17] The appellant also sought leave to appeal the costs award made by the motion judge. We would not grant leave to appeal. The appellant has not satisfied us that the motion judge erred in exercising his discretion in fixing costs such that leave to appeal should be granted: Brad-Jay Investments Ltd. v. Szijjarto, at para. 21, leave to appeal to S.C.C. dismissed [2007] S.C.C.A. No. 92.
Conclusion
[18] The appeal is dismissed with costs to the respondent fixed in the agreed amount of $10,000, inclusive of disbursements and HST.
Appeal dismissed.
Notes
¹ Google Inc. was never served with the statement of claim and did not participate in the motion.
End of Document