Court of Appeal for Ontario

Date: 2020-03-09 Docket: C67581

Before: Feldman, Huscroft and Harvison Young JJ.A.

Between: Barry Weisleder, Plaintiff (Appellant)

And: The Ontario Secondary School Teachers' Federation, Defendant (Respondent)

Counsel: Alexander Zivkov, for the appellant Joanna Birenbaum and Kristen Allen, for the respondent

Heard: March 4, 2020

On appeal from the judgment of Justice Jane Ferguson of the Superior Court of Justice, dated October 8, 2019.

Reasons for Decision

[1] The respondent union was granted summary judgment dismissing Mr. Weisleder’s defamation action. Mr. Weisleder argues that the motion judge made several errors in characterizing the nature of the allegedly defamatory speech and erred in concluding that the speech was protected by qualified privilege. He also argues that the issue of whether the privilege was defeated by malice could not be decided on summary judgment and required the court to hear viva voce evidence to determine credibility.

[2] We see no error in the motion judge’s decision.

[3] The motion judge properly concluded that, even assuming the speech was defamatory, it was protected by qualified privilege. She found that the dominant motive of the impugned speech in the pamphlet distributed at the annual general meeting, and the excerpt, which she found was not distributed, was to provide a history of the bargaining unit; that the union had an interest and duty to respond to Mr. Weisleder’s allegations; and that the union members had a corresponding right or interest to receive the information. This was sufficient to establish qualified privilege.

[4] In order to defeat the claim of privilege, Mr. Weisleder was required to establish malice and he failed to do so. Although the motion judge noted Ms. Burke’s dislike of Mr. Weisleder, she found no evidence to refute the dominant purpose of the pamphlet or the excerpt. Nor was the occasion of privilege exceeded. The motion judge found that the words were not disproportionate to the occasion on which they were communicated. The impugned speech was “balanced, bland and reasonable, particularly in light of the context of the inflammatory and vindictive words used by Weisleder over a number of years.” These findings were open to the judge on the evidence and are entitled to deference from this court.

[5] Although there are cases where the record before the court may be insufficient to decide the issue of malice on summary judgment (see Baglow v. Smith, 2012 ONCA 407, 110 O.R. (3d) 481, at paras. 31-32; McDonald v. Freedman, 2013 ONSC 6812 (Div. Ct.), at para. 68), in this case there was an ample evidentiary record before the motion judge that allowed her to make the findings she did. That record included transcripts of examinations for discovery of the key people at the union together with affidavits of other people and cross-examinations thereon.

[6] The appellant raised the issue of reasonable apprehension of bias, seemingly based on the fact that the motion judge did not accept his position. There is no basis to raise this issue and no merit to it.

[7] The appeal is dismissed. The respondent is entitled to costs of the appeal in the agreed amount of $15,000, inclusive of taxes and disbursements.

“K. Feldman J.A.” “Grant Huscroft J.A.” “A. Harvison Young J.A.”