ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: CV-10-410527
Date: 20150730

B E T W E E N:

RICHARD WARMAN

Brian G. Shiller and Angela Chaisson, for the Plaintiff

Plaintiff

• and -

MICHAEL VECK

Christopher Ashby, for the Defendant

Defendant

AMENDED JUDGMENT¹

D.L. Corbett J.:

1Richard Warman sues in defamation for words published about him by Michael Veck on the internet.

2The case arises in the context of a debate over the relationship between laws against hate speech and the principles of freedom of speech. Mr Warman is a passionate advocate against far-right and Neo-Nazi hate speech aimed primarily at non-Whites and Jews. Mr Veck is a political staffer in the office of a Conservative Canadian Senator and takes a libertarian position against hate speech legislation because it derogates from fundamental freedoms of speech and opinion.

3For the reasons that follow I find that the impugned article posted by Mr Veck is defamatory of Mr Warman. I find that Mr Veck has no legal defence for publishing this defamatory article. I conclude that the article was not widely read and that damages of $10,000 are appropriate in the circumstances. I conclude that the message posted by Mr Veck as a retraction and apology did not cure the damage caused by the defamatory article and should not serve to reduce damages awarded to Mr Warman. Thus there shall be judgment for Mr Warman against Mr Veck in the amount of $10,000.

Background

4Mr Warman is a human rights lawyer who has monitored the activities of White-supremacist and neo-Nazi movements in Canada for over two decades. In his testimony, Mr Veck describes Mr Warman as an “activist”. If “activist” means “a person who passionately advocates for a cause in which he believes” then this is a fair characterization of Mr Warman.

5In the past decade, Mr Warman has drafted, filed and successfully co-litigated 15 complaints under the internet hate message provisions of the Canadian Human Rights Act. These complaints have been made against persons alleged to advocate White-supremacist, anti-Jewish, and pro-Nazi ideas.

6One of Mr Warman’s complaints concerned postings made by Craig Harrison on a website operated by Marc Lemire. The postings impugned in that complaint included repeated calls for genocide.

7Mr Warman succeeded against both Mr Harrison and Mr Lemire. A permanent cease-and-desist order was made against Mr Harrison. The decision against Mr Lemire was under appeal at the time that Mr Warman’s claim was commenced against Mr Veck.² The Human Rights Commission subsequently issued a final cease-and-desist order against Mr Lemire.³

The Offensive Post Concerning Senator Anne Cools

8Anne Cools was appointed to the Senate of Canada in 1984. She was the first Black Canadian appointed to Canada’s upper house. She is currently the longest-serving Senator in the Senate.

9During the proceedings before the Canadian Human Rights Commission between Messrs Warman and Lemire, it came to light that an objectionable article had been posted on Mr Lemire’s web site about Senator Cools. The article is misogynist, racist, and clearly violated the hate speech provisions of the Canadian Human Rights Act. Mr Lemire asserted in the human rights proceedings that this article was concocted and placed on his web site by Mr Warman. Mr Warman denied this allegation and argued that the allegation, itself, was concocted by Mr Lemire and one of his associates, Bernard Klatt, to discredit Mr Warman and his hate speech complaints.

10The allegations are obviously defamatory of Mr Warman. They include statements that Mr Warman has created hate speech for the purpose of advocating against hate speech. They include statements that Mr Warman has brought human rights proceedings on false pretences, alleging that others are responsible for hate speech that he, himself, has authored. The allegations, in effect, state that Mr Warman should be disbelieved because he cannot be trusted.

11Words written or spoken within a legal proceeding are protected by absolute privilege. Mr Lemire and his associates did not repeat their allegations against Mr Warman outside the human rights proceedings.

12On February 19, 2008, the National Post and Jonathan Kay published an article repeating the allegations made by Mr Lemire that Mr Warman was responsible for the objectionable article posted about Senator Cools. The article was entitled “Jonathan Kay on Richard Warman and Canada’s phony-racism industry”. The purport of the argument was that the existence of organized racism is significantly overstated, and that publicized instances of racist hate speech were fabricated by “activists” such as Mr Warman. Its defamatory content is obvious.

13Mr Kay and the National Post did not restrict themselves to reporting Mr Lemire’s statements as unproven allegations asserted within legal proceedings. Rather, they asserted that these allegations were true. Therefore, Mr Kay’s story in the National Post was not protected by the privilege that attaches to statements made within legal proceedings, or as a fair and accurate journalistic report of a legal proceeding.

14Mr Warman served a libel notice on Mr Kay and the National Post. In response, the National Post retracted the article, and the National Post and Mr Kay subsequently settled a libel action brought against them by Mr Warman.

15The impugned article was republished by others. Libel actions against these republishers were continuing at the time of the trial between Messrs Warman and Veck.

Republication and Article by Mr Veck

16In early 2009, Mr Veck joined a web site known as “WAIS”: the World Association for International Studies. Only WAIS members may post articles on this web site but anyone may view and read posted articles.

17In March 2009, Mr Veck published an article on the WAIS web site. The article included the entire text of the retracted National Post article.

Mr Veck’s Article

18Mr Veck’s article begins with the following statement:

I would like to know what members of WAIS think about the bizarre and frightening spectacle of the continuous erosion of free speech in the West, particularly in Europe and Canada. It seems that there’s an ever-growing list of taboos that one cannot mention or investigate without fear of legal (at the very least) repercussions.

19The balance of the article repeats and amplifies the contents of the National Post article, and states, in effect, that Mr Warman is “corrupt”, “surreal”, “strange”, has tried to manufacture “phony-racism”, is a “radical anti-racist”, has engaged in “horrible” and “shocking” behaviour out of an excess of zeal for his cause, and that the substance of the National Post article is true.

20Clearly Mr Veck’s article is defamatory of Mr Warman.

21Mr Warman first learned about Mr Veck’s article in July 2010 He delivered notice under the Libel and Slander Act in August 2010. This proceeding was commenced in September 2010.

22In his testimony, Mr Veck said that he had read the National Post article and that he had not done any other research before he posted his article to WAIS.

23The National Post had retracted Mr Kay’s article and apologized for it long before Mr Veck posted his article to the WAIS web site. Mr Veck testified that he did not know that the National Post article had been retracted.

24Mr Veck is not a journalist. He is not an academic. He read and relied upon an article in the National Post written by a well-known senior journalist. Mr Veck did not do follow up research to see if the article had been withdrawn, or whether further facts had been reported on the issue. He did not contact Mr Warman to get his side of the story.

Mr Veck’s Apology

25When Mr Veck received Mr Warman’s libel notice, he took steps to have his article removed from the WAIS web site. He arranged to have the following apology posted to the WAIS site in the stead of his article:

I previously published material here that attacked the personal and professional reputations of Mr Richard Warman. Mr Richard Warman states that these allegations were false, and so I wish to retract them and apologize.

26Mr Warman argues that this is a non-apology and does not cure the harm done by the original article. Mr Veck argues that it is an unqualified retraction and apology and that he could not go further without commenting on the truth of the allegations, matters which are disputed in other litigation and in respect to which he has no personal knowledge.

Analysis

27Mr Veck’s article is clearly defamatory, is clearly of and about Mr Warman, and clearly was published by Mr Veck.⁴ The issues for decision are:

(a) Whether Mr Veck has a defence in law for publishing these defamatory statements about Mr Warman;

(b) If the answer to (a) is no, what Mr Warman’s damages are; and

(c) If the answer to (a) is no, whether Mr Veck’s apology should serve to reduce or eliminate the damages awarded to Mr Warman.

(a) Defences

28Mr Veck asserts defences of fair comment, qualified privilege and responsible communication.⁵

29Mr Veck is not assisted in these defences by the fact that a substantial portion of his article was a repetition of Mr Kay’s article in the National Post. A defendant cannot escape liability by publishing statements originally published by someone else.⁶ Put prosaically by Lord Denning fifty years ago:

Our English law does not love tale-bearers. If the report or rumour was true, let him justify it. If it was not true, he ought not to have repeated it or aided in its circulation. He must answer for it just as if he had started it himself.⁷

I – Fair Comment

30Veck argued that his article was a fair comment on a matter of public interest.

31Comment is a statement of opinion. Assertions of fact are not protected by a defence of fair comment. And to be protected, comment must appear as comment; it must not be mixed in with statements of fact so that the reader is not able to distinguish between reported facts and opinion.⁸

32Mr Veck’s publication is not a statement of opinion. It is a statement of facts – the opinions expressed on the basis of those facts are really no more than rhetorical responses to the defamatory facts. One example should suffice to make this point. Mr Veck calls Mr Warman a “radical anti-racist”. In most contexts, being described as “radical” might have negative implications. It is not so clear that it does when it is applied to an activity that right-thinking persons would endorse. So it is not even clear that Mr Veck’s opinion, that Mr Warman is a “radical anti-racist”, is defamatory, when that opinion is stated baldly. In the context of Mr Veck’s article, however, it is clear that “radical” is used to connote behaviour so extreme as to be, itself, anti-social, even if it is in aid of a cause that most would support. That is, while right-thinking persons oppose racism and would not think less of a person for opposing racism, right-thinking persons would hold a different view of a person who would stop at nothing to oppose racism – including dishonest or even criminal conduct. It is the conduct attributed to Mr Warman – fabricating the Cools article – and attributing it to someone else – that is the essence of the defamatory statements about Mr Warman, and not Mr Veck’s opinion that this conduct is “radically anti-racist”.

33Mr Veck described Mr Warman as an “activist”. When asked what he meant by this description and Mr Veck’s answer was not entirely clear. I asked if Mr Veck, himself, was a free-speech “activist”. He quickly responded that he was no such thing. His explanation seemed to be that an “activist” is a person who advocates for causes with which a libertarian or conservative-minded person would disagree.

34Mr Veck’s article did not include facts, analysis or argument concerning the conflicts in principle between those advocating the use of hate speech laws to restrain certain kinds of speech, and those who advocate against hate speech laws as impediments to freedom of speech and opinion. Calling Mr Warman an “activist” (assuming the meaning attributed to that word by Mr Veck, rather than a more objective use of that term) was as close as Mr Veck got to an argument of principle. Rather, the core content of the article was an attack on Mr Warman personally. For all of these reasons, the defence of fair comment does not assist Mr Veck.

II – Qualified Privilege

35Qualified privilege attaches to the occasion upon which a communication is made, not to the communication itself. It arises where a defendant had a legal, moral or social duty in making the statement and the recipient of the information had a corresponding interest in receiving the information.⁹

36Personal publication on the internet to “the world” will seldom, if ever, be an occasion on which qualified privilege arises.¹⁰ Here, I am at a loss to see any “interest” that Mr Veck had in publishing his article. Publication to “the entire world” on the internet is, in any event, “overpublication” and not publication to a person or persons with a “corresponding interest” in receiving Mr Veck’s communication.

37Since Mr Veck’s publication was not made on an occasion of qualified privilege, the issue of whether that privilege is defeated by malice does not arise.

III – Responsible Communication

38The defence of “responsible communication” does not apply in the circumstances of this case.¹¹ This defence generally applies to journalists acting in the scope of their profession. This does not describe Mr Veck or his actions in publishing his article to the WAIS web site. There was no “urgency” to publish Mr Veck’s article. Mr Veck did not seek or accurately report Mr Warman’s side of the story. And finally, Mr Veck had no legal “interest” in communicating these matters to the public since they had already been reported to the public – by the National Post.

(b) Damages

39Mr Veck’s article was published to “the entire world”. But that does not mean that was read by the entire world. On the record before me, I conclude that it was read by very few persons.

40Mr Warman has been vigilant in protecting his own reputation. I infer from this that he has monitored statements made about him in the press and on the internet. He did not come across Mr Veck’s post, nor was it brought to his attention, for the roughly 18 months that Mr Veck’s post remained on the WAIS web site. I infer from this that few interested persons read Mr Veck’s article.

41There is authority for the proposition that defamatory statements made by a lawyer about legal matters can be an aggravating factor in assessing damages. Here, however, although Mr Veck is a lawyer, he is not identified as such in his article posted to WAIS, nor would his professional status be presumed as a result of the content or manner of expression in the article. Therefore his status as a lawyer would not give his article added credibility in the mind of a reader. I do not consider this a material factor in this case.¹²

42There is no claim for economic losses or special damages as a result of Mr Veck’s defamatory article.

43Taking everything into account, I conclude that general damages of $10,000 are appropriate.

44This is not an appropriate case for aggravated damages. Republication is no basis on which a defendant may avoid liability, but that does not make it irrelevant to the issue of malice: Mr Veck read the article by Mr Kay and believed it. Mr Veck testified that he had no personal animosity towards Mr Warman, and was reacting to an article by a well-known, reputable senior journalist in a credible national newspaper. I accept this evidence and accept that Mr Veck truly did not know that the article he republished was false. Mr Veck, not himself a journalist, and not purporting to act as one, did not confirm the National Post story or seek Mr Warman’s side of the story. Rather, Mr Veck was simply reacting to something he read in a newspaper. I accept these submissions and conclude that there was no malice or other egregious conduct meriting an award of aggravated damages.

(c) Retraction and Apology

45Mr Warman argues that Mr Veck’s apology and retraction are inadequate and should not serve to reduce damages in this case.¹³ I agree.

46The substance of Mr Veck’s retraction is that, because Mr Warman disagrees with the article, Mr Veck is withdrawing it. This substance falls short of acknowledging that the article was without foundation.

47I appreciate that Mr Veck was not in a position to assert any particular version of facts related to the heinous article written about Senator Cools. However, he was in a position to state that the article on which he had based his post had been withdrawn by its author and publisher, and that he, himself, has no knowledge of the matters to which that articled related.

48In the circumstances of this case, it could have been appropriate to reduce damages to nil if the retraction and apology had been full and effective. It was not, and fell so short of such an effect that I decline to reduce the damages at all.

Summary

49Mr Veck’s has no legal defence for publishing his article defamatory of Mr Warman. I fix the damages at $10,000. I find that the apology and retraction do not serve to reduce the damges. Thus there shall be judgment for Mr Warman in the amount of $10,000.

Delay, Interest and Costs

50I regret the delay in releasing these reasons. For reasons that are well known to the bar, this court faced a severe and prolonged resource shortfall in 2014 which led to delays in releasing some reserve judgments, of which this is but one.

51Prejudgment and post-judgment interest shall run at the rates prescribed pursuant to the Courts of Justice Act. The parties have filed their bills of costs. If the parties cannot agree on the effect of any pertinent offers to settle or upon the appropriate quantum of costs then they shall make brief written submissions, Mr Warman by August 31, 2015 and Mr Veck by September 21, 2015.

D.L. Corbett J.

Released: 20150730

COURT FILE NO.: CV-10-410527
DATE: 20150730

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

RICHARD WARMAN

Plaintiff

• and –

MICHAEL VECK

Defendant

JUDGMENT

D.L. Corbett J.

Footnotes

1. 1The judgment has been amended to update the list of counsel and to correct a typographic error in paragraph 47.
2. 2The judicial review to the Federal Court (2012 FC 1162) led to an appeal to the Federal Court of Appeal (2014 FCA 18), which upheld impugned provisions against hate speech in the Canadian Human Rights Act.
3. 32014 CHRT 6.
4. 4Posting on the internet constitutes “publication” in defamation law: Barrick Gold Corp. v. Lopehandia (2004), 2004 12938 (ON CA), 71 O.R. (3d) 416 (Ont. C.A.).
5. 5In his statement to defence, Mr Veck also invoked ss. 2(b) and 52(1) of the Canadian Charter of Rights and Freedoms. This argument was not pursued at trial.
6. 6R.E. Brown, The Law of Defamation in Canada (2nd ed., 1994), 10.3, pp. 10-15 to 18; Brown on Defamation (2nd ed. LL), pp. 7-89 to 100.
7. 7Associated Newspapers Ltd. v. Dingle, [1964] A.C. 371 at 410-11.
8. 8R.E. Brown, The Law of Defamation in Canada, 2nd ed. (1994), 15.3(2), pp. 15-29 to 30; WIC Radio Ltd. v. Simpson, 2008 SCC 40.
9. 9Hill v. Church of Scientology, 1995 59 (SCC); Adam v. Ward, [1917] A.C. 309 (H.L.).
10. 10Vigna v. Levant, 2010 ONSC 6308; Hunter v. Godin, [2012] O.J. No. 3977 (S.C.J.).
11. 11Grant v. Torstar Corp., 2009 SCC 61.
12. 12Rodrigues v. Rodrigues, 2013 ABQB 718.
13. 13Libel and Slander Act, R.S.O. 1990, c. L.12, s.9; Downard, Libel (2nd ed.), pp. 244-5.