Court of Appeal for Ontario

Date: 20210723 Docket: C68030

Tulloch, Nordheimer and Jamal JJ.A.

BETWEEN

Canadian Union of Postal Workers Plaintiff/Responding Party (Respondent)

and

B’nai Brith Canada, Michael Mostyn, Aidan Fishman and Ran Ukashi Defendants/Moving Parties (Appellants)

Counsel: David Elmaleh and Aaron Rosenberg, for the appellants David Migicovsky and Karin M. Pagé, for the respondent

Heard: April 7, 2021 by video conference

On appeal from the order of Justice Calum U.C. MacLeod of the Superior Court of Justice, dated January 16, 2020, with reasons reported at 2020 ONSC 323.

Jamal J.A.:

Introduction

[1] The appellants, B’nai Brith Canada, Michael Mostyn, Aidan Fishman, and Ran Ukashi, appeal from the order of the motion judge dismissing their motion to dismiss an action in defamation brought against them by the respondent, Canadian Union of Postal Workers (“CUPW”), under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Section 137.1 seeks to mitigate the harmful effects of strategic lawsuits against public participation (“SLAPPs”) — lawsuits that seek to limit freedom of expression on matters of public interest rather than to pursue bona fide claims: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 2. Section 137.1 is thus known as an “anti-SLAPP” provision.

[2] For the reasons that follow, I would dismiss the appeal.

Background

[3] CUPW is a public sector union. From time to time, it takes positions on political and human rights issues. For many years it has supported a boycott of Israeli products, known as the Boycott, Divestment and Sanctions (“BDS”) movement, based on its view that Palestinians are mistreated in the occupied territories. CUPW also participates in capacity-building projects and cooperates with postal worker unions in other countries, including the Palestinian Postal Service Workers Union (“PPSWU”).

[4] B’nai Brith is a charitable organization that has served as a primary grassroots voice for the Canadian Jewish community since 1875. It regularly participates in public debate on topics that impact the Canadian Jewish community and the broader public. Michael Mostyn is the CEO of B’nai Brith and Aidan Fishman and Ran Ukashi were employees of B’nai Brith and authors of press releases about CUPW that CUPW alleged were defamatory.

[5] The relevant events are as follows.

[6] A union member of CUPW complained to B’nai Brith about CUPW’s support for the BDS movement, which B’nai Brith views as a propaganda campaign to delegitimize the state of Israel. B’nai Brith then conducted research on CUPW’s activities and discovered that it had worked on a joint project with PPSWU. B’nai Brith found a Facebook page maintained by a person in a leadership role with PPSWU containing postings in Arabic praising individuals involved in terrorist activity against Israel. B’nai Brith also found postings on the PPSWU page appearing to be pro-Palestinian, which B’nai Brith interpreted as implicitly calling for the destruction of the state of Israel.

[7] On July 26, 2018, B’nai Brith e-mailed CUPW and asked for comment on the PPSWU Facebook posts and advised CUPW that it intended to publish a story about CUPW’s association with PPSWU. B’nai Brith asked for a response by the next day. CUPW did not respond. On July 31, 2018, B’nai Brith published the first of two press releases authored by Mr. Fishman and Mr. Ukashi that became the basis of CUPW’s defamation action. The first press release, entitled “Canadian Postal Workers Align with Pro-Terrorism Palestinian Union”, stated that PPSWU glorified terrorism on its Facebook page and alleged that “CUPW leadership has aligned itself with the path of violence and extremism”. The second press release, published on August 2, 2018, stated that “CUPW’s radical leadership has refused to respond to our questions on why it would partner with a terror-supporting organization” and alleged that CUPW’s union dues “may be used to support a foreign organization that wants to see [CUPW’s Jewish and Israeli members] murdered.”

[8] CUPW sued the appellants for defamation, alleging that the publications claimed that it supports terrorism and that it is anti-Semitic. CUPW also alleged that the appellants acted maliciously. The appellants responded by filing a statement of defence and, subsequently, bringing a motion under s. 137.1 to have the action dismissed.

The motion judge’s decision

[9] The motion judge dismissed the appellants’ motion. He first summarized the statutory framework for an anti-SLAPP motion under s. 137.1 and the test for defamation at common law. He then found:

• Using union funds to support political causes that might support attacks on Israel is a matter of public interest. Legitimate criticism of these practices is protected speech under anti-SLAPP legislation.
• CUPW has a “solid case” for defamation since the published words referred to CUPW by name. The appellants’ claim that CUPW is motivated by racism and is using union dues improperly to support terrorism “would easily meet the test of language tending to diminish the reputation of [CUPW] in the minds of reasonable people.”
• There are “serious flaws” in the appellants’ defences:
  • Defence of “truth” or “justification”: Interacting with the PPSWU cannot be reasonably said to be radical when official bodies like the Government of Canada, the European Union, and the United Nations have all sponsored projects in Gaza and the West Bank aimed at economic, justice system, or government institution-building and capacity-building. It would be “difficult to prove” that CUPW supports terrorism, violence, or anti-Semitism or that PPSWU “officially supports terrorism”. Evidence showed that the Facebook posts were not by the PPSWU but by an individual. There is thus a “reasonable and distinct possibility that [the] ‘truth’ and ‘justification’ [defences] will not succeed.”
  • Defence of “fair comment”: There is evidence that “B’nai Brith acted on assumptions without exercising due diligence” by conducting only a “cursory internet search” of Facebook pages. B’nai Brith appeared to have “entirely ignored CUPW’s own policies and declarations against violence and racism and in support of a peaceful two state solution in the middle east”, which “may be fatal to any ‘fair comment’ defence”. B’nai Brith’s choice to attack CUPW’s involvement with the PPSWU and to “blow [the issue] out of proportion” is potential evidence of malice.
• The task on a s. 137.1 motion is to “screen out litigation that is targeted by the legislation”, which includes “litigation of questionable merit or utility brought to stifle public debate on matters of public interest.” This is a “legitimate defamation action brought in circumstances where [CUPW] should have the right to pursue a remedy.” The appellants’ defences raise “significant issues about truth, good faith, responsibility and malice.”

Legal Framework

[10] Subsections 137.1(3) and (4) of the Courts of Justice Act provide the following test on an anti-SLAPP motion:

(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.

(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.

[11] The Supreme Court of Canada’s decision in Pointes Protection, released after the motion judge’s decision, analyzed the interpretation and application of these provisions. At para. 18, Côté J. explained how these provisions operate:

1. Section 137.1 places a threshold burden on the moving party (the defendant) to satisfy the motion judge that the proceeding arises from an expression relating to a matter of public interest.
2. If the moving party meets this threshold burden, the burden shifts to the responding party (the plaintiff) to satisfy the motion judge that there are grounds to believe that the proceeding has substantial merit and the moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If the responding party does not meet this burden, the s. 137.1 motion is granted and the proceeding is dismissed.

Issues

[12] There is no dispute that the appellants met their threshold burden to satisfy the motion judge that the proceeding arises from expression relating to a matter of public interest — the use of union funds to take positions on the conflict in the Middle East or to help an organization that allegedly supports attacks on Israel.

[13] The appellants assert that the motion judge erred in concluding that CUPW met its burden to resist the dismissal of the action. They say that the motion judge erred:

1. in law and fact in several aspects of the s. 137.1(4)(a)(ii) analysis relating to the appellants’ defences to the alleged defamation; and
2. by failing to undertake the balancing required under s. 137.1(4)(b).

[14] I will address each issue in turn.

Issue #1: Did the motion judge err in the s. 137.1(4)(a)(ii) analysis?

[15] The appellants assert that the motion judge erred in law and in fact in concluding that there are “grounds to believe” that the appellants have “no valid defence in the proceeding” under s. 137.1(4)(a)(ii).

[16] First, the appellants claim that the motion judge applied the wrong legal test under s. 137.1(4)(a)(ii) when he noted, at the start of his reasons, that “[t]he defences which have been raised by B’[n]ai Brith are not certain to be successful”. The appellants acknowledge in their factum that the motion judge “articulated the test differently later in [his] reasons”, but claim that the “incorrect statement of law at the outset coloured the motion judge’s analysis.”

[17] I do not accept that the motion judge erred in stating the legal test under s. 137.1(4)(a)(ii). I do not read the motion judge’s statement that the appellants’ defences “are not certain to be successful” as articulating the legal test under s. 137.1(4)(a)(ii). Read in context, that statement merely reflected his finding that there were grounds to believe that the defences would fail or, in other words, that there was no valid defence. As I explain below, the motion judge articulated and applied the correct test, consistent with the Supreme Court’s articulation of it in Pointes Protection. The motion judge stated that CUPW had to satisfy him that there are grounds to believe that the appellants have no valid defence, which he explained means that “a reasonable trier of fact could conclude that none of the pleaded defences would succeed at trial” (emphasis in original). The motion judge emphasized that “[i]t is premature to determine such a question conclusively at this preliminary stage of the litigation”, and highlighted that “[t]here need only be a basis for believing these conditions may be satisfied. The section does not require the motion judge to conclusively determine that the claim will succeed nor that the defences will fail” (emphasis in original).

[18] The motion judge’s articulation of the test under s. 137.1(4)(a)(ii) reflects the Supreme Court’s articulation in Pointes Protection. Côté J. stated that s. 137.1(4)(a) asks whether the motion judge “concludes from his or her assessment of the record that there is a basis in fact and in law … to support a finding that the plaintiff’s claim has substantial merit and that the defendant has no valid defence to the claim”: at para. 42. She explained that the “no valid defence” prong requires the plaintiff — CUPW — “to show that there are grounds to believe that the defences have no real prospect of success”: at para. 60.

[19] I therefore see no basis to conclude that the motion judge erred in stating the legal test under s. 137.1(4)(a)(ii).

[20] Second, the appellants assert that in applying s. 137.1(4)(a)(ii) the motion judge made several findings unavailable to him on the record, and that he erred in evaluating the defences of justification, fair comment, and responsible communication and in finding that the appellants may have acted with malice.

[21] Before addressing the appellants’ specific objections, I underscore that a motion judge’s determination under s. 137.1(4)(a) attracts appellate deference, absent a reviewable error: Pointes Protection, at paras. 41, 97; Bent v. Platnick, 2020 SCC 23, 449 D.L.R. (4th) 45, at para. 77. As I will explain, I see no reviewable error justifying appellate intervention. It was open to the motion judge to find what he called “serious flaws” in the appellants’ defences and thus provide grounds to believe that none would succeed.

[22] I will begin with the appellants’ argument on the defence of justification.

[23] Once a plaintiff makes a prima facie showing of defamation, the words complained of are presumed to be false. To succeed on the defence of justification, the defendant must lead evidence showing that the statement was substantially true. Even if the publication is shown to contain accurate facts, the defence will fail when the “sting” of the defamation is shown to be untrue: Platnick, at para. 107.

[24] Regarding justification, the appellants say that the motion judge erred by ignoring probative evidence on a key issue and by finding that “it will be difficult to show that PPSWU officially supports terrorism.” These arguments essentially ask this court to reweigh the evidence before the motion judge. That is not this court’s role. There was a basis in the record for the motion judge to conclude that it may be difficult for the appellants to prove justification because their statements rested on problematic source material. As the motion judge found, the Facebook posts that the appellants relied on for their allegation that PPSWU supported terrorism were made not by PPSWU but by an individual. The motion judge was thus entitled to find that there were grounds to believe that the defence of justification would fail.

[25] The appellants also say that the motion judge relied on evidence not in the record when he noted that the Government of Canada, the European Union, and even the state of Israel have sponsored projects in Gaza and the West Bank aimed at institution and capacity building. The motion judge made this observation partly to support his point that CUPW merely being involved in a project with PPSWU does not mean that CUPW is “radical or aligned with any and all activities of [PPSWU]”. That point is self-evident and unassailable even without referring to the impugned evidence. I see no reviewable error here.

[26] The appellants also contend that the motion judge erred by holding, “without significant analysis”, that there was evidence that may be fatal to the defences of fair comment and responsible communication.

[27] The following principles are relevant in considering the defences of fair comment and responsible communication:

• To rely on the defence of fair comment, the comment must be based on true facts. If the factual foundation is unstated or unknown, or turns out to be false, the defence is unavailable: WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 31.
• The responsible communication defence has two essential elements: (1) the publication must be on a matter of public interest; and (2) the defendant must show that the publication was responsible, in that the defendant was diligent in trying to verify the allegations, having regard to all the circumstances: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 98; Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, 143 O.R. (3d) 54, at para. 28.

[28] I do not accept that the motion judge erred regarding these defences.

[29] In concluding that there were grounds to believe that the defences of fair comment and responsible communication would fail, the motion judge stated that “[w]ithout going into the evidence in depth”, he would “just hit some of the highlights”. He found:

1. CUPW merely being involved in a project with PPSWU cannot reasonably be said to mean that CUPW supports all of PPSWU’s activities;
2. it would be difficult to prove that PPSWU “officially supports terrorism”, especially because there was evidence that the impugned Facebook posts were not made by it; and
3. there was evidence that the appellants had “acted on assumptions without exercising due diligence”, based on only “a cursory internet search and review of Facebook pages”, and apparently ignored “CUPW’s own policies and declarations against violence and racism”.

[30] Each of the above findings is grounded in the record before the motion judge. I see no basis for this court to intervene.

[31] Finally, the appellants assert that the motion judge erred in stating that malice may undermine the appellants’ defences. Malice may be established by reckless disregard for, or indifference to, the truth, spite or ill-will, or any indirect or ulterior motive: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 145; Platnick, at para. 136. The appellants state in their factum that “[t]o infer that an advocacy organization may have acted with malice by following a lead and uncovering a public interest story is not evidence of malice.”

[32] I do not accept that the motion judge erred. To be clear, the motion judge stated that he was “not … making a finding of malice”. He merely concluded that there was evidence before him that “may support such a finding”, based on the presence of an ulterior motive or recklessness about the truth of the underlying facts, or based on an inference from the appellants’ conduct. He underscored that “[t]his is not a summary judgment motion and it is not appropriate to take a ‘deep dive’ into the evidence.” I see no error in the motion judge’s approach or conclusion.

[33] I thus conclude that the motion judge had a basis in the record to find grounds to believe that the appellants’ defences would fail. He was entitled to find that there was evidence that the appellants acted on assumptions without exercising due diligence, and that this may be fatal to their defences of responsible communication and fair comment. He was also entitled to find that there was evidence of malice that would undermine the appellants’ defences.

[34] In reaching this conclusion, I emphasize that the motion judge did not adjudicate these defences on the merits or find malice. All that he decided was that CUPW’s defamation action may proceed. I see no reviewable error in that conclusion.

Issue #2: Did the motion judge err in failing to undertake the balancing required under s. 137.1(4)(b)?

[35] The second issue raised by the appellants asserts that the motion judge erred in law by failing to undertake the balancing required under s. 137.1(4)(b) to determine whether the harm likely to have been suffered by CUPW because of the appellants’ expression is sufficiently serious and the corresponding public interest in permitting the action to continue outweighs the public interest in protecting the appellants’ expression. The appellants claim that the motion judge set out but failed to apply this balancing test, which the Supreme Court in Pointes Protection described as “the crux or core of the s. 137.1 analysis”: at para. 82. The appellants therefore say that the appeal should be allowed and the motion remitted to a different judge to conduct the balancing.

[36] In the alternative, the appellants assert that even if this court performs this balancing de novo on appeal, the appeal should be allowed and CUPW’s action dismissed because the harm alleged by CUPW is not serious enough to allow the defamation action to continue. The appellants say that CUPW has suffered only insignificant harm, if any, from the appellants’ expression and has filed no evidence of any specific, provable, quantifiable harm. The appellants add that the record shows that their expression has been “chilled”, because they have not published on the subject since being served with the statement of claim. They claim that the expression implicated is close to the core values underlying freedom of expression and there is therefore a greater public interest in protecting it. Finally, the appellants allege that CUPW’s lawsuit presents several indicia of a SLAPP. They say that it seeks to silence the appellants from criticizing CUPW in good faith on its partnerships with entities in the Middle East.

[37] Respectfully, I do not accept the appellants’ submissions.

[38] I begin by observing that it is not disputed that the motion judge correctly set out the balancing test under s. 137.1(4)(b). He cited this court’s decision in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, at para. 45, aff’d 2020 SCC 22, 449 D.L.R. (4th) 1, which held that a plaintiff such as CUPW alleging to have been wronged by a defendant’s expression on a matter of public interest must “demonstrate that the public interest in vindicating that claim outweighs the public interest in protecting the defendant’s freedom of expression.” The motion judge explained that the balancing under s. 137.1(4)(b) “asks the court to consider if the harm potentially suffered by the plaintiff is trivial or not and if it is serious to consider whether it is in the public interest to deny the plaintiff a remedy in the name of freedom of speech.”

[39] I am satisfied that the motion judge applied this test. There is no doubt that the motion judge considered the harm alleged to have been suffered by CUPW to be significant. He cited this court’s decision in Lascaris v. B’nai Brith Canada, 2019 ONCA 163, 144 O.R. (3d) 211, leave to appeal refused, [2019] S.C.C.A. No. 147, which allowed a defamation action against B’nai Brith to proceed when B’nai Brith published an article alleging that the official Justice Critic of the Green Party of Canada had used social media to advocate on behalf of terrorists who had murdered Israeli civilians. This court held, in Lascaris, that the balance under s. 137.1(4)(b) “clearly” favoured the plaintiff, because if the action proceeded and the plaintiff were to succeed, “the damages to which the [plaintiff] would be entitled could be significant. Accusing any person of supporting terrorists is about as serious and damaging an allegation as can be made in these times”: at para. 40 (emphasis added). That observation applies equally here and no doubt led the motion judge to conclude that this was a “solid case for defamation” and to highlight that “[w]ords suggesting that a union is using its membership dues improperly, supports terrorism and is motivated by racism would easily meet the test of language tending to diminish the reputation of the union in the minds of reasonable people.” I am therefore satisfied that the motion judge found that the harm potentially suffered by CUPW because of the appellants’ alleged defamation was serious.

[40] I am also satisfied that the motion judge weighed the serious potential harm to CUPW against whether, in the name of freedom of speech, it was in the public interest to deny CUPW the ability to pursue a remedy. This weighing is reflected in the motion judge’s statements that his task on the motion was to “screen out litigation that is targeted by the legislation”, namely, “litigation of questionable merit or utility brought to stifle public debate on matters of public interest.” Because of the potentially injurious statements against CUPW, the evidence that B’nai Brith acted on assumptions without exercising due diligence and that it ignored CUPW’s policies against violence and racism, the potential for finding that B’nai Brith acted with malice, and the potential weakness of the appellants’ defences, the motion judge was entitled to find that “this is a legitimate defamation action brought in circumstances where the union should have the right to pursue a remedy.”

[41] Nor do I see any basis to conclude that the appellants’ speech has indicia of a SLAPP sufficient to materially affect the outcome of the weighing exercise. CUPW was prima facie entitled to sue the individual employees given that the evidence shows that each had direct involvement in the authorship and publication of the allegedly defamatory statements: see Hill, at para. 176. The action also did not have a chilling effect on the appellants’ speech because B’nai Brith did not remove the impugned press releases from its website after it was sued and there is evidence that Mr. Mostyn wrote an article about CUPW after the appellants were served with the Notice of Libel.

[42] In conclusion, as the motion judge held, CUPW’s action “does not appear to [be] … the type of action the legislature contemplated should be stopped in its tracks at this preliminary stage.” The motion judge correctly stated the test and appropriately weighed the relevant considerations. His conclusion therefore attracts appellate deference.

Disposition

[43] I would dismiss the appeal, with costs to CUPW in the agreed amount of $15,000 all inclusive.

Released: July 23, 2021 “M.T.” “M. Jamal J.A.” “I agree. M. Tulloch J.A.” “I agree. I.V.B. Nordheimer J.A.”