Levant v. Day
Ontario Reports
Court of Appeal for Ontario
Doherty, Pardu and Nordheimer JJ.A.
March 28, 2019
145 O.R. (3d) 442 | 2019 ONCA 244
Case Summary
Civil procedure — Costs — Summary dismissal motion — Defendant's delay in bringing motion for summary dismissal of action under anti-SLAPP provisions of Courts of Justice Act justifying award of costs in favour of successful plaintiff despite s. 137.1(8) of Courts of Justice Act — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(8).
Civil procedure — Summary dismissal — Defendant posting series of tweets alleging that plaintiff's campaign to raise money for victims of Fort McMurray forest fires was fraudulent — Plaintiff suing defendant for defamation — Motion judge declining to dismiss action summarily under anti-SLAPP provisions of Courts of Justice Act — Motion judge erring in finding that tweets did not relate to matter of public interest — Plaintiff demonstrating that trier of fact could reasonably conclude that defendant had no defence to action — Public interest in permitting action to continue to trial outweighing public interest in protecting impugned expression — Courts of Justice Act, R.S.O. 1990, c. C.43.
Facts
The defendant posted a series of tweets alleging that the plaintiff's campaign to raise money for victims of the Fort McMurray forest fires was a scam designed to enrich the plaintiff and that the plaintiff had falsely promised that donors would get income tax receipts. He continued to make those assertions after the Red Cross confirmed that donors would be provided with tax receipts. The plaintiff sued the defendant for damages for defamation. The defendant moved for summary dismissal of the action under the anti-SLAPP provisions of the Courts of Justice Act. The motion was dismissed. The defendant appealed and sought leave to appeal the order for costs against him.
Held, the appeal from the dismissal of the motion should be dismissed; the costs appeal should be allowed in part.
The motion judge erred in holding that the tweets did not relate to a matter of public interest because they were, in pith and substance, direct personal attacks on the plaintiff. The concept of "public interest" does not take into account the merits or manner of the expression or the motive of the author. The tweets, when taken as a whole and in context, indisputably related to a matter of public interest.
The motion judge did not err in finding that the plaintiff had established that there were grounds to believe that the defendant had no valid defences. The plaintiff had advanced the defences of fair comment and failure to provide notice pursuant to s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12. A trier of fact could reasonably conclude that some of the defamatory statements amounted to factual assertions which were not recognizable as comment and that the statements were made with malice, so that the defence of fair comment was not made out. A trier of fact could also reasonably conclude that s. 5(1) of the Libel and Slander Act does not apply to Twitter posts.
The motion judge did not err in finding that the public interest in permitting the proceeding to continue to trial outweighed the public interest in protecting the impugned expression. It could not be said that any damages awarded to the plaintiff would necessarily be nominal, or that he had suffered only insignificant harm. On the other side of the balance, the quality of the expression and the motivation of the defendant were relevant to the measure of the public interest in protecting his expression. Deliberate falsehoods, gratuitous personal attacks, or vulgar and offensive language may reduce the public interest in promoting a defendant's speech. The defendant's tweets were imbued with hyperbole and vulgar vitriol and were admittedly false in many respects. There was little value in protecting that expression.
Leave to appeal from the costs order was granted because of the procedural unfairness of counsel for the plaintiff making unsolicited submissions to the motion judge without the defendant's consent. The defendant's delay in bringing the anti-SLAPP motion justified an award of costs in favour of the plaintiff, despite s. 137.1(8) of the Courts of Justice Act. The motion judge did not err in awarding costs of a motion to adduce fresh evidence, which was inextricably linked to the anti-SLAPP motion. The costs award should be reduced from $19,731.64 to $18,000 to credit the defendant with his travel costs for a motion hearing date which the plaintiff adjourned without the defendant's consent.
Cases Referred To
1704604 Ontario Ltd. v. Pointes Protection Assn., 2018 ONCA 685 — applied
Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690
Statutes Referred To
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1
Libel and Slander Act, R.S.O. 1990, c. L.12, s. 5(1)
Rules and Regulations Referred To
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 1.09
Authorities Referred To
Anti-SLAPP Advisory Panel, Report to the Attorney General (Ontario: Ministry of the Attorney General, 2010)
Appeal
APPEAL from the order of C.J. Brown J., 2017 ONSC 5956 dismissing a motion for summary dismissal of action; and from the costs order, 2018 ONSC 6236.
Counsel:
Jeff G. Saikaley, for appellant.
A. Irvin Schein, for respondent.
Judgment
The judgment of the court was delivered by
A. Facts
[1] PARDU J.A.: — The defendant in this action for damages for defamation appeals from the decision of a motion judge refusing to dismiss the action pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the "Anti-SLAPP"¹ provisions. He submits that the motion judge erred in coming to the following conclusions:
(1) The appellant's tweets did not relate to a matter of public interest.
(2) The defence of fair comment was not available to the appellant and that the notice provisions of the Libel and Slander Act, R.S.O. 1990, c. L.12 are inapplicable to Internet publications.
(3) The public interest in allowing the proceeding to continue outweighed the public interest in protecting the appellant's expression.
[2] In oral argument, the appellant submitted that the motion judge should have found that the impugned expression related to a matter of public interest and that in the absence of any harm to the respondent, the action should have been dismissed without an analysis of the merits of the claim and the availability of various defences. The appellant also seeks leave to appeal from the costs order made against him.
[3] For the reasons that follow, I dismiss the appeal but grant leave to appeal from the costs order and vary that order accordingly.
B. Factual Background
[4] The appellant and the respondent are from opposite ends of the "Twitterverse". The motion judge described the respondent as "the principle of an online media outlet, Rebel News, which is known as an online media site that comments on political and social issues, espousing right-wing or right-leaning views": Levant v. Day, 2017 ONSC 5956, at para. 6.
[5] The motion judge described the appellant as "a regular participant on social media for over a decade" who maintained a blog named "Canadian Cynic". He expressed his views almost exclusively on Twitter. The appellant describes his views as liberal, progressive and left-wing.
[6] From early May to early June 2016, the appellant posted tweets highly critical of the respondent and of Rebel News relating to their campaign to raise money for the victims of the Fort McMurray forest fires.
[7] In those tweets the appellant alleged matters such as the following:
(1) The respondent was engaged in a scam of "unadulterated sleaziness" so that he could improperly take advantage of other donors' charitable tax receipts. By leading the fundraising campaign, the respondent was enriching himself at the expense of forest fire victims.
(2) The respondent would use charitable donations intended for those victims to pay his personal legal expenses.
(3) The respondent falsely promised that donors to his campaign would get tax receipts.
(4) Fort McMurray residents would lose promised matching donations from the federal and provincial governments, which would have been available had donations been made directly to the Red Cross.
(5) The payment of a 5 per cent administration fee meant less money went to victims.
(6) Even though the Red Cross confirmed on May 13 that they would provide a charitable tax receipt to donors using the Rebel News website, the appellant continued to assert that the respondent had treated the donors badly, and said he could not have invented a scheme as "sleazy or grandstanding or narcissistic as what Ezra came up with".
(7) On June 1, 2016, the appellant tweeted that he was advised by authoritative sources that the donations made as a result of the respondent's campaign would not qualify for matching donations, and the donors would not get tax receipts.
(8) On June 3 and 4, 2016, the appellant suggested that the respondent had a reputation as a "liar, con artist and scumbag", with little reputation to damage, and that he had siphoned his money away from the Red Cross.
(9) Finally, on June 4, the appellant suggested that the respondent was "fucking donors out of their tax receipts", implied that he was a "sleazy opportunist, hack, con artist and grafter" and that he was raising money for himself.
C. Statutory Scheme
[8] Sections 137.1(1) - (4) of the Courts of Justice Act provide as follows:
Dismissal of proceeding that limits debate
Purposes
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.
Definition, "expression"
(2) In this section,
"expression" means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.
Order to dismiss
(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
No dismissal
(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.
D. Analysis
(1) Did the appellant's tweets relate to a matter of public interest?
[9] The motion judge held that the appellant had failed to satisfy his onus of showing that the expressions related to a matter of public interest: Levant v. Day, 2017 ONSC 5956, at paras. 24-25. She recognized that the Fort McMurray fires were matters of public interest, but found that the Day tweets were, "in pith and substance, direct personal attacks on Ezra Levant": Levant, at para. 24. Citing Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC 6785, the motion judge noted that "[w]here the pith and substance of the matter is a defamatory personal attack thinly veiled as a discussion on matters of public interest, the court has all the tools it requires to determine the true nature of the expression and rule accordingly": Levant, at para. 23.
[10] The motion judge did not have the benefit of this court's decision in 1704604 Ontario Ltd. v. Pointes Protection Assn., 2018 ONCA 685, in which the concept of "public interest" was summarized at para. 65:
In summary, the concept of "public interest" as it is used in s. 137.1(3) is a broad one that does not take into account the merits or manner of the expression, nor the motive of the author. The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication. An expression may relate to more than one matter. If one of those matters is a "matter of public interest", the defendant will have met its onus under s. 137.1(3).
(Emphasis added)
[11] In focusing on the merits of the allegation of defamation, the manner of expression and the motives of the author, the motion judge committed an extricable error of law displacing the deference otherwise due to her conclusion. While the motion judge found that the appellant had launched a defamatory personal attack, his motive for the tweets is a matter distinct from the subject matter of the tweets.
[12] The appellant's tweets, when taken as a whole and in context, are about the legitimacy of the respondent's fundraising campaign, the benefits which should properly flow to victims of the Fort McMurray forest fires from charitable contributions and the treatment of donor contributions. These indisputably relate to a matter of public interest.
(2) Were there grounds to believe that the appellant had no valid defence in the proceedings?
[13] The respondent satisfied the motion judge that there were grounds to believe that the appellant had no valid defences. The appellant had advanced the defences of fair comment and failure to provide notice pursuant to s. 5(1) of the Libel and Slander Act (the "Act"). The motion judge characterized the impugned Twitter posts as statements of fact, not comment based on facts: Levant, at para. 38. She observed that the statements were repeated, even after the appellant knew the statements were untrue: Levant, at para. 40. She concluded that the statements were motivated by malice and that there were reasonable grounds to believe that no defence of fair comment was made out: Levant, at paras. 41-42. With respect to the notice defence, the motion judge was of the view that s. 5(1) of the Act did not apply to Twitter posts: Levant, at paras. 45-47. In particular, the motion judge found that s. 5(1) of the Act refers to libel in a newspaper and broadcast, and noted that the appellant failed to provide any evidence regarding the functioning of Twitter or provide policy reasons to justify extending the meaning of "broadcast" to include content disseminated via Twitter: Levant, at paras. 45-47. The motion judge also declined to take judicial notice of such facts: Levant, at para. 46.
[14] Pointes instructs that "[s]ection 137.1 does not provide an alternate means by which the merits of a claim can be tried, and it is not a form of summary judgment intended to allow defendants to obtain a quick and favourable resolution of the merits of allegations involving expressions on matters of public interest": at para. 73. Rather, the motion judge must decide whether a conclusion that the defendant has no valid defence falls within "the range of conclusions reasonably available on the motion record": Pointes, at para. 75. Here, a trier could reasonably conclude that some of the defamatory statements made amounted to factual assertions, were not recognisable as comment and could reasonably conclude that the statements were made with malice. A trier might also reasonably conclude that s. 5(1) of the Act does not apply to the Twitter posts. Thus, the respondent has demonstrated that a conclusion that the appellant has no defence to the action is amongst the range of reasonable conclusions which might be reached by a trier and as such has met the test in s. 137.1(4)(a)(ii), as explained in Pointes. Since the respondent has surmounted this hurdle, an analysis of the balancing test in s. 137.1(4)(b) is required.
(3) Is the harm suffered or likely to be suffered serious enough to outweigh the public interest in protecting the expression embodied in the tweets?
[15] The motion judge indicated that she was satisfied "that the interest in permitting the within proceeding to continue to trial outweighs the public interest in protecting the impugned expression contained in the Day [tweets]. In the circumstances of this case, there is no public interest in protecting said [tweets]": Levant, at para. 54.
[16] Sometimes claims of defamation may exact too great a cost to the public interest in promoting and protecting freedom of expression in relation to matters of public interest: Pointes, at para. 86.
[17] As pointed out in the Anti-SLAPP Advisory Panel, Report to the Attorney General (Ontario: Ministry of the Attorney General, 2010), at para. 37:
If an action against expression on a matter of public interest is based on a technically valid cause of action but seeks a remedy for only insignificant harm to reputation, business or personal interests, the action's negative impact on freedom of expression may be clearly disproportionate to any valid purpose the litigation might serve.
[18] Here, the alleged defamatory statements accused the respondent of defrauding victims of the Fort McMurray forest fires. While the harm suffered or likely to be suffered may often be measured primarily by the monetary damages suffered or likely to be suffered, the "preservation of one's good reputation" has inherent value beyond the monetary value of the claim: Pointes, at para. 88. Here, we are told the appellant had around 11,000 followers on Twitter. There is no indication the statements were made to a private, or closed group. These were not statements made to a small group and quickly retracted. The statements attribute serious criminality to the respondent. On his discovery, the appellant accepted that donors were receiving tax receipts for their donations. He admitted that he had not made any inquiries of the government about matching donations. He also admitted that he had no information that the respondent received any personal benefit from the fundraising campaign.
[19] The appellant submits that the respondent is a "noisy troublemaker" who does not shy away from controversy, and has participated in other defamation cases, as both plaintiff and defendant. The appellant submits that the respondent's platform, Rebel Media, has relentlessly attacked and denigrated individuals and groups. The appellant further submits that the respondent's reputation is so bad that the impugned tweets cannot have caused him any damages, especially since others made similar comments. Even if the appellant's characterization of the respondent's reputation were correct, and I make no finding on that issue, this is different from a reputation tainted with criminal conduct depriving innocent victims of charitable donations.
[20] While there is an ephemeral quality to individual tweets, which may have some bearing on the damages ultimately awarded, here the appellant engaged in a sustained attack upon the respondent.
[21] I cannot say that any damages awarded would necessarily be nominal, or that the respondent has suffered only insignificant harm.
[22] On the other side of the balance, the quality of the expression and the motivation of the appellant are relevant to the measure of the public interest in protecting his expression: Pointes, at para. 94. This court in Pointes, at para. 94, held that "deliberate falsehoods, gratuitous personal attacks, or vulgar and offensive language", all part of the expression here, may reduce the public interest in protecting that speech, compared to cases where the message is delivered "without the lies, vitriol, and obscenities".
[23] This is not to say that resort to some vulgar language will necessarily deprive expression of value worth protecting. However, here the tweets posted are imbued with hyperbole and vulgar vitriol, and admittedly false in many respects such that there is little value in protecting their expression.
[24] On balance, the respondent has established that the harm likely to be suffered, or which has been suffered, is sufficiently serious that the public interest in allowing the proceeding to continue outweighs the public interest in protecting the appellant's expression.
E. Leave to Appeal Costs
[25] The appellant also seeks leave to appeal from the costs order made against him, following dismissal of his motion to dismiss the respondent's action, relying on s. 137.1 of the Courts of Justice Act.
[26] The motion judge awarded costs to the respondent, on a partial indemnity basis in the sum of $19,731.64: $13,666.22 was allocated for the anti-SLAPP motion, and $6,047.42 was allocated for the costs of a failed motion to adduce fresh evidence, brought after the main motion was heard but before the decision was delivered to the parties.
[27] The appellant submits that the motion judge erred in four respects:
(1) The decision awarding costs was tainted by procedural unfairness. While the decision on costs was under reserve, the respondent's counsel made unsolicited submissions to the motion judge, without the appellant's consent.
(2) The motion judge failed to give effect to s. 137.1(8) of the Courts of Justice Act, which provides that "if a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances".
(3) The respondent unilaterally, and without the appellant's consent adjourned the motion from June 20, 2017 to June 22, 2017. As a result, the appellant and his client incurred unnecessary travel costs from Ottawa to Toronto in the sum of $1,222.38, which should be set off against any cost award.
(4) The motion judge did not award costs when she delivered her ruling on the fresh evidence motion. As a result, she had no authority to award costs of that motion when she decided the costs associated with the anti-SLAPP motion.
(1) Procedural unfairness
[28] I would grant leave to appeal from the costs order because of the procedural unfairness of counsel making further unsolicited submissions to the motion judge without the consent of the appellant, and without invitation from the court. While leave to appeal costs is rarely granted, in this case, this court should look at costs afresh because of the uncertainty as to the effect, if any, those additional submissions had on the motion judge. Rule 1.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides:
1.09 When a proceeding is pending before the court, no party to the proceeding and no party's lawyer shall communicate about the proceeding with a judge, master or case management master out of court, directly or indirectly, unless,
(a) all the parties consent, in advance, to the out-of-court communication; or
(b) the court directs otherwise.
(2) Section 137.1(8)
[29] Both parties point to the underlying merits of each of their positions before the motion judge, and her assessment of the merits as having an impact upon the issue of costs of the motion. The most significant factor here, however, is that the anti-SLAPP motion was brought after the action was set down for trial. As indicated in Pointes, at para. 73, s. 137.1 establishes a "judicial screening or triage device designed to eliminate certain claims at an early stage of the litigation process". Section 137.1 contains various provisions intended to expedite the hearing of these motions, including a prohibition against taking other steps until the motion is heard: Pointes, at para. 43. Given the serious cost consequences which can result from a successful anti-SLAPP motion, such as full indemnity costs as per s. 137.1(7), these motions should be brought early in the proceedings. Here, the delay in bringing the anti-SLAPP motion justified an award of costs in favour of the successful plaintiff, the respondent, despite s. 137.1(8).
(3) The adjournment of the motion
[30] The respondent does not deny that he adjourned a motion hearing date without the consent of the appellant, but says in his factum that "[p]arties and their counsel are responsible for ensuring that they are aware of procedural developments in a case, including on an administrative level". The respondent submits that appellant's counsel were made aware of the date change by email dated June 19, 2017, the date he says the hearing of the motion was scheduled to continue. The parties do not agree as to whether the motion was to be continued on June 19 or June 20, 2017. The record is not of much help establishing precisely what happened, nor exactly how the additional costs claimed were incurred. The motion judge did not address this issue.
[31] The parties do not agree as to whether the appellant actually incurred additional costs as a result of a unilateral adjournment by the respondent. The appellant's costs outline filed June 20, 2017 claims $1,747.66 for the changed flights and the appellant claims an offset of costs amounting to $1,222.38. Given that the appellant certified that the costs were incurred, and having regard to the amounts and the distance travelled, I would credit the appellant for this unnecessary travel.
(4) Did the motion judge have authority to award costs on the fresh evidence motion?
[32] The motion for fresh evidence was inextricably linked to the motion judge's hearing of the anti-SLAPP motion. In these circumstances she did not err in awarding costs of that motion.
[33] Working from the motion judge's assessment of the quantum of partial indemnity costs, with which no one takes issue, I would vary the costs awarded below for the anti-SLAPP motion and the motion to adduce fresh evidence to the sum of $18,000, inclusive of HST and disbursements, in favour of the respondent.
F. Disposition
[34] I would accordingly dismiss the appeal with costs of the appeal to the respondent, in the agreed sum of $25,000, inclusive of disbursements and HST. As per the above, costs awarded below are varied to $18,000, inclusive of HST and disbursements, in favour of the respondent.
Appeal from dismissal of motion dismissed; costs appeal allowed in part.
Notes
¹ SLAPP means Strategic Litigation Against Public Participation.
² The Anti-SLAPP Advisory Panel was assembled in 2010 to advise the Attorney General of Ontario on the potential content of legislation against SLAPPs and to help develop a test for courts to quickly recognize a SLAPP suit.
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