Court of Appeal for Ontario

Citation: Kam v. Canadian Broadcasting Corporation, 2022 ONCA 13

Date: 2022-01-11

Docket: C69274

Before: Huscroft, Trotter and Coroza JJ.A.

Between:

Michelle Kam Plaintiff (Appellant)

and

Canadian Broadcasting Corporation, Zach Dubinsky and Lisa Mayor Defendants (Respondents)

Counsel:

Christopher Stienburg, for the appellant

Andrea Gonsalves and Carlo Di Carlo, for the respondents

Heard: January 10, 2022 by video conference

On appeal from the order of Justice Eugenia Papageorgiou of the Superior Court of Justice, dated March 3, 2021.

Reasons for Decision

[1] The appellant argues that the motion judge erred in finding the photo of the appellant (“Statement 6”) in the second article was not defamatory. We disagree. The motion judge applied the proper test and her conclusion that the placement of the photo was not capable of bearing any of the defamatory meanings claimed by the appellant is entitled to deference.

[2] The appellant’s main argument is that the motion judge erred in finding that she failed to demonstrate that the defence of responsible communication did not tend to weigh more in favour of the respondents. There is no merit to this argument.

[3] The motion judge applied the proper legal framework from 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, and Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, and her findings are amply supported by the record. It was reasonable for the respondents to conclude that the appellant chose not to respond to the allegations given her refusal to speak with the respondents concerning those allegations on several occasions. The motion judge made no error in finding that no material facts were omitted from the publication and again, her decision is entitled to deference.

[4] Finally, the motion judge addressed the public interest balancing under s. 137.1(4)(b) only out of caution, in the event that her decision concerning the responsible communication defence was found to be erroneous. We have concluded the motion judge made no error in applying s. 137.1(4)(a). As a result, her findings concerning s. 137.1(4)(b) are irrelevant and we are not to be taken as endorsing or rejecting them.

[5] The appeal is dismissed.

[6] The respondents are entitled to costs in the agreed amount of $8,300, all inclusive.

“Grant Huscroft J.A.”

“Gary Trotter J.A.”

“S. Coroza J.A.”