Court File and Parties
COURT FILE NO.: CV-16-1874-00 DC-16-145-ML DATE: 2017 03 07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: S.R - and - L.R et al. - AND BETWEEN - V.B - and - E.R. et al.
BEFORE: LEMAY J.
COUNSEL: P. Downard/ R. Laurion, Counsel for the Defendants (Moving Parties) A. Sidhu, Counsel for the Plaintiff S.R (Responding Party) P. Baxi/ A. Mann, Counsel for the Plaintiff V.B
HEARD: In writing
ENDORSEMENT
1This is a motion for leave to appeal from a series of decisions made by Snowie J. dated December 2nd, 2016. There are two actions in this case, one brought by S.R. against his parents, siblings and other people and the other brought by V.B. against essentially the same defendants.
2The Defendants believe that V.B has unduly influenced S.R., and alienated him from his family. At the time these events started S.R. was seventeen years old. He is now twenty. The Defendants have published narrative and other commentary about V.B., and his relationships with both S.R. and another person of a similar age. S.R. and V.B. view these statements as defamatory.
3As a result, both S.R. and V.B. commenced separate actions against the Defendants. They also sought an interim and permanent injunction against the Defendants in both cases. The injunction sought would require the Defendants to remove a series of websites and other publications from the internet, and prohibit the Defendants from publishing any further statements relating to these issues.
4S.R. also sought an interim order preventing the Defendants from coming within two hundred meters of him or attending at his place of residence, employment or school on the basis that he was being intimidated, harassed and bothered by the Plaintiffs.
5Both of these injunctions were granted on an interim basis by Snowie J. on December 2nd, 2016.
6In addition, at the hearing of this motion and at the invitation of Snowie J., S.R. and V.B. applied for a publication ban. This publication ban was granted by Snowie J. on December 2nd, 2016 without hearing from any other parties.
7Finally, Snowie J. granted substantial indemnity costs to S.R. in the sum of $33,893.50 inclusive of HST and disbursements. Snowie J. ordered full indemnity costs payable to V.B. in the sum of $50,976.97, inclusive of HST and disbursements. The costs were ordered payable forthwith.
8The Defendants seek leave to appeal these decisions to the Divisional Court on the basis, inter alia, that Snowie J. applied the wrong test for the granting of an interim injunction in a defamation case, failed to consider whether a civil cause of action for harassment exists in Ontario and what the legal test applicable to such a tort would be, and failed to consider the open courts principle and the Practice Directions of the Superior Court in issuing the publication ban.
9For the reasons that follow, I am granting leave to appeal all of these decisions to the Divisional Court.
Background Facts
I am going to set out some of the basic facts that give rise to the motion before Snowie J., and to the appeal in this case. However, my role on a motion for leave to appeal is not to make findings of fact on controversial issues, and I decline to do so.
a) The Relationship Between V.B. and S.R.
10V.B. is over forty years of age. He is a Freemason, and holds a senior position within the ranks of the Freemasons. He also owns a number of businesses.
11S.R. was first introduced to him in the spring of 2015, by another friend of S.R.’s. S.R. also met D.G., who was the same age as S.R., and identified as V.B.’s son, although there is no biological relationship between them.
12S.R. began spending considerable amounts of time with V.B, D.G., and spent less time with his classmates and friends at school.
13S.R. was a marijuana user when he met V.B. There is a live issue of fact (at least on the materials before me) as to whether S.R. ever stated that V.B. supplied him with marijuana.
14S.R.’s parents and siblings (the Defendants in this case) noted that S.R. became more withdrawn and sullen, and was less communicative than he had been prior to meeting V.B.
b) The Deterioration of S.R’s Relationship With His Family
15In the summer of 2015, S.R’s family was moving from Richmond Hill to Holland Landing. S.R. did not want to move with them. Shortly before the move, S.R.’s parents went on vacation. Prior to leaving on vacation, they had a video camera installed in the house.
16During his parents’ vacation, S.R. moved out of the house with V.B.’s assistance. There were issues of whether or not S.R. or V.B. had tampered with the video camera so that it did not show V.B. assisting S.R. in moving out of his parents’ house.
17There were also some other incidents that took place in the late spring of 2015 that led to the complete breakdown of the relationship between S.R. and his parents. Those incidents do not need to be detailed in order to resolve the issues on this motion.
18It is important to note, however, that S.R. has only spoken to his parents once, in December of 2015, between his decision to move out of the house in the summer of 2015 and the hearing of the motion before Snowie J. in December of 2016.
c) The Impugned Statements
19As a result of their alienation from S.R., his family started a website. This website was designed to accomplish a number of things. First, it was designed as a forum for people to post information and memories about S.R. Second, S.R.’s family viewed it as a way to communicate with him. Third, S.R.’s family viewed it as a way to share their story about how V.B. had alienated them from S.R. Finally, S.R.’s family was attempting to obtain support for their story.
20The motions judge described the impugned statements on the website in the following way:
[12] To call someone a career criminal and a child molester is clearly and obviously defamatory. These words are repeated, in modified phrases and sentences, throughout the various websites. The descriptions of the plaintiff, noted above, serve to illustrate both these labels. The statements are clearly capable and likely of being found defamatory. And in these circumstances, as untrue, baseless attacks on the character and integrity of the plaintiff, they are clearly defamatory in fact in my opinion.
[13] [V.B.] argues that identifying a person as a sexual predator and sexual groomer only serves to lower the estimation of him in the minds of right-thinking individuals. I agree. These allegations have been made directly or indirectly through Links about sexual predators on the “WeMiss[S.R.]” website. These are heinous allegations.
21While it is not my role to make findings of fact on a motion for leave to appeal, I must note that the evidentiary record before me appeared to be more nuanced in the following ways:
a) For at least some of these statements, there are differences in the evidence of the parties, and issues of credibility that arise. b) There are different inferences that can be drawn from some of the statements set out on the website. c) More specifically, I do not see on the materials that are before me the “heinous” allegation that V.B. is a sexual predator stated anywhere specifically by the Defendants. It may very well be that this is an inference that can be drawn from the material on the website.
22I outline these observations, which I note are preliminary in nature, only because they inform my views on whether leave to appeal ought to be granted in this case. The review of the whole evidentiary record must be left to the Divisional Court.
The Test for Leave to Appeal
23Applications for leave to appeal to the Divisional Court are considered under Rule 62.02 of the Rules of Civil Procedure.
24The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted. There are two possible branches upon which leave may be granted. If the test is met under either branch, then leave will be granted. However, both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.
25Under the first branch, Rule 62.02(4)(a), the moving party must establish that:
a. there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and; b. that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.”
26A “conflicting decision” must be one that conflicts with the one under appeal with respect to a matter of principle, not merely a case in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).
27Under the second branch, Rule 62.02(4)(b), the moving party must establish that:
a. there is reason to doubt the correctness of the order in question and; b. that the proposed appeal involves matters of such importance that leave to appeal should be granted.
28It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).
29I will now apply this test to the issues in this case. The two Plaintiffs filed two separate sets of materials, and made modestly different arguments. I will refer to the arguments as the Plaintiffs’ arguments throughout, even if the argument was only made by one Plaintiff. I have also applied all the arguments that were made to both cases.
The Issues in This Case
30As I have noted, there are three separate decisions of Snowie J. that are under appeal. They produce four issues that I must consider:
a) Should the injunctions preventing the Defendants from commenting on the Plaintiffs and, inter alia, their relationship have been granted? b) Should the restraining order against the Defendants have been granted? c) Should a publication ban have been granted? d) Was the costs award appropriate in the circumstances?
31I will consider each issue in turn.
Issue #1- The Granting of the Injunction to Prevent Defamation
32In granting the injunction against the websites, Snowie J. set out the legal principles that she was applying as follows:
[7] The granting of an interlocutory or interim injunction is always a matter of discretion but there are three main criteria (see R.J.R. MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at para. 48):
The first criterion is a preliminary and tentative assessment of the merits of the case, requiring the applicant to either make out a prima facie case or to establish that the claim is not frivolous or vexatious, that is, there is serious question to be tried and there is a likelihood of a finding of defamation at trial. I find that there is a likelihood and a serious question.
The second test is whether the applicant will suffer irreparable harm if the injunction is refused. I find that they will.
The third test determines which of the two parties will suffer the greater harm from the granting or refusal of the injunction; thus it is called the balance of convenience test. The test (3) is not related to defamation cases.
33It is clear from her reasons that she has applied the test for an injunction set out in [RJR MacDonald Inc. v. Canada (, 1994 1 S.C.R. 311). The Defendants argue that she has applied the wrong test, and that her reasons are in conflict with many of the decisions rendered by Courts in Ontario and elsewhere in both Canada and the common-law world.
34The Plaintiffs assert that there is not a great deal of difference between the RJR MacDonald test and the test for granting an injunction that applies in the case of a defamation action. The Plaintiffs also argue that applying the test that the Defendants say should apply would not have changed the result. Finally, the Plaintiffs also argue that the Defendants have no reasonable basis for claiming any of their defences in this case. I reject all of these arguments.
35In my view, there are clearly conflicting decisions on these legal principles. The conflicts start with the Supreme Court of Canada’s decision in Canada (HRC) v. Liberty Net (, [1998] 1 S.C.R. 626) where Bastarache J. (writing for the majority) stated:
The common law authorities in Canada and the United Kingdom have suggested the guiding principle that interlocutory injunctions should only be granted to restrain in advance written or spoken words in the rarest and clearest of case – where the words are so manifestly defamatory and impossible to justify that an action in defamation would almost certainly succeed. Given the value we place on freedom of expression, particularly in matters of public interest, that guiding principle has much to recommend it. [Emphasis added.]
These cases indicate quite clearly that the Cyanamid test is not applicable in cases of purse speech and, therefore, the appellants are misguided in presuming that this rest does apple. As Griffiths L.J. points out in Herbage v. Pressdram, supra, such a test would seldom, if ever, protect controversial speech…
36Other cases have adopted the same type of analysis, including Beidas v. Pichler ((2008), 238 O.A.C. 103 (Div. Ct.)), Canadian Metal Co. v. Canadian Broadcasting Corp. ((1975), 7 O.R. (2d) 261), Bonnard and Another v. Perryman ([1891] 2 Ch. 269 (English C.A.)), ZAM v. CFW and Another ([2013] EWHC 662 at paragraph 19).
37A clear explanation for the approach that the Courts should adopt in assessing this type of request for an injunction is set out in Palen v. Dagenais (2012 SKQB 383) where Danyliuk J. states (at paragraphs 17 and 18):
The Supreme Court further held that interlocutory injunctions should only be granted to restrain future defamation in the rarest and clearest of cases, where the words are so clearly defamatory and impossible to justify that an action in defamation would almost certainly succeed. This is a policy-driven principle, as freedom of speech is an enshrined Canadian right which ought to be sedulously fostered.
As well, an interim injunction to restrain future defamation pending trial may not issue where the defendant demonstrates his intention to attempt to justify (by proving the truth of) his past statements, unless the plaintiff can show the court at this stage that the words are both clearly defamatory and impossible to justify.
38I should briefly comment on the Plaintiffs’ argument that the motions judge’s brief references to defamation in her articulation of the test amount to a consideration of the Liberty Net line of reasoning. I reject that assertion because the motions judge stated that the test to be applied requires her to consider whether there is “a likelihood of a finding of defamation at trial”.
39In this case, it is clear that the motions judge applied a lower test to the evidence before her than the one adopted by the Supreme Court of Canada, and set out in the prevailing authorities both here and in England. As a result, the first branch of the first test- the existence of conflicting decisions- is met.
40This brings me to the second part of the test under Rule 62.02 (4)(a) for leave to appeal. I am also of the view that it is desirable that leave to appeal should be granted in this case for two key reasons. First, there is a significant difference between the two tests. The test the motions judge applied has a lower threshold than the test that is applied in the bulk of cases. As a result, there is a real likelihood that the application of the prevailing test would result in a different outcome.
41I should comment on the strength of the Plaintiffs’ case at this stage. As I have noted above, there are issues of credibility that will be raised if this matter proceeds to trial. The Defendants are also claiming that many of the impugned statements are not defamatory in nature and, in the alternative raising the defences of truth and fair comment in response to the Plaintiffs’ claim of defamation. I set out above my preliminary view of some of the evidence in this case. My preliminary view of the evidence is at variance with the conclusion that the Defendants have no defence in this case. It is for these reasons that I conclude that there is a real possibility that the application of the prevailing test would lead to a different outcome in this case. However, I leave the consideration of the full factual record to the Divisional Court.
42Second, there are very significant issues, including Charter issues, that are engaged by the differences in the applicable tests. Granting an injunction in a case of defamation clearly interferes with the enjoined party’s freedom of speech. As a result, it is important for the Divisional Court to consider the question of the proper test to apply to ensure that the freedom of speech rights of the Defendants are minimally impaired.
43I should briefly address the argument that the Plaintiffs made that the outcome in this case would not change regardless of which test was applied. In particular, reference was made to the decision of Pepall J. (as she then was) in Manson v. John Doe #1 (2011 ONSC 4663). In that case, Pepall J. applied the RJR MacDonald test to an injunction in a defamation case. After having been advised that there was a different line of authorities that applied a different test. Pepall J. concluded that she would have granted the injunction in either case.
44In my view, this decision does not support the Plaintiffs’ position for three reasons. First, each case turns on its own facts. In this case, for reasons set out elsewhere in this decision, I am of the view that there is a real likelihood in this case that the application of the Liberty Net test would have resulted in a different outcome. Second, there is no finding from the motions judge in this case that she would have reached the same result had she applied a different test. Finally, the specifics of the defamatory statements made by the Defendant and the other evidence released upon in Manson are not set out in the reasons. As a result, it is difficult to compare that case to the one before me.
45Finally, the Plaintiffs argue that the principles set out in Ribeiro v. CIBC (1986 Carswell Ont. 838 (H.C.)) should be applied to this case. In other words, leave to appeal should only be granted on interlocutory orders on a very limited basis. While I accept that principle, this is one of the very limited cases where leave should be granted for the reasons set out above.
46As a result, both branches of the test under 62.02(4)(a) are met. It is therefore not necessary to consider the test under 62.02(4)(b).
Issue #2- Should the Restraining Order have been Granted?
47The restraining Order is an interim injunction prohibiting the Defendants from harassing, or contacting either of the Plaintiffs. It also prohibits, inter alia, the Defendants from coming within 200 meters of the Plaintiffs’ residence, or their places of work or education.
48The test for when the Court will grant an action for harassment is set out in McHale v. HMTQ (2014 ONSC 5179), where D.J. Gordon J. stated (at paragraph 44):
In an action for harassment, a plaintiff must establish:
a) outrageous conduct by the defendant; b) the defendant’s intention of causing or reckless disregard of causing emotional distress. c) the plaintiff suffered severe or extreme emotional distress; and d) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.
49However, in Savino v. Shelstowsky (2013 ONSC 4394), Chapnick J. noted that there was some doubt about the existence of the tort of harassment. Further, as recently as 2015, the judicial authorities suggest that this tort is continuing to evolve (see P.M. v. Evangelista 2015 ONSC 1419 at paragraph 35).
50In addition, there is the tort of intrusion upon seclusion, which was discussed by the Ontario Court of Appeal in Jones v. Tsige ((2012) 2012 ONCA 32, 108 O.R. (3d) 241). This was a new tort relating to the invasion of privacy that the Court of Appeal determined should be recognized under the law of Ontario.
51It is not clear from the reasons of Snowie J. which of these torts she was considering when she made her interim Order. As a result, I will consider both torts, and will consider whether leave to appeal should be granted under Rule 62.04(4)(b).
52I start with the proposition that, in order for an injunction to be granted, there has to be an underlying case that could result in a finding that the Defendants had committed the tortious conduct that they are alleged to have committed. The injunction to prevent harassment would appear to me to engage the RJR MacDonald test rather than the higher test for defamation injunctions. The Plaintiffs have to establish a prima facie case.
53This brings me to the tort of harassment. Putting aside the question of whether the Defendants’ conduct in this case was outrageous, I consider the next three elements of the test. They all require an intent to create emotional distress, as well as evidence that such emotional distress was actually suffered by the Plaintiff.
54While S.R. and V.B.’s affidavits speak to the embarrassment that they suffered, I did not see evidence of extreme emotional distress on the record before me. In other words, on the record before me, I do not see a prima facie case of emotional distress made out. As a result, there is good reason to doubt the correctness of Snowie J.’s decision if it was the tort of harassment that she was basing the injunction on.
55This brings me to the tort of intrusion upon seclusion, which is colloquially referred to as an invasion of privacy. In determining whether a prima facie case for this tort is made out, I turn to the following passage from the reasons of Sharpe J.A.:
[71] The key features of this cause of action are, first, that the defendant's conduct must be intentional, within which I would [page262] include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum. (d) Limitations
[72] These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one's financial or health records, sexual practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.
56In this case, it is not clear to me how the Plaintiffs’ privacy has been invaded. In particular, it is not clear how the events that the Plaintiffs have described, even if I accept all of their evidence, would establish that there had been an intrusion into any of the areas listed by Sharpe J.A. As a result, there is also good reason to doubt the correctness of Snowie J.’s decision if it was the tort of intrusion upon seclusion that she was basing the injunction on.
57This brings me to the second part of the test under Rule 62.04(4)(b), which is whether the proposed appeal involves matters of such importance that leave should be granted. In my view, this part of the test is also met for the following reasons:
a) Both of these torts are relatively new torts, and the law in this area is clearly still evolving. The development of the law would benefit from appellate review. b) As Sharpe J.A. notes in Jones (at paragraph 73), protection of privacy claims may give rise to competing claims, some of which will engage Charter issues. This appears to be such a case. c) The reasons given in this case make it difficult to understand the precise basis for the granting of the injunction.
58As a result, both branches of the test under Rule 64.04(4)(b) are met, and leave to appeal is granted on this issue as well.
Issue #3- Should the Publication Ban Have Been Granted?
59The Superior Court’s consolidated practice direction sets out rules for litigants to follow when seeking a publication ban. Those rules are set out at paragraphs 104 to 112 of the Consolidated Practice Direction and state:
Application of this Part
This part applies to all civil, criminal and family proceedings in the Superior Court of Justice and to proceedings in the Divisional Court.
This part applies to all applications or motions for discretionary publication bans. It does not apply to publication bans that are mandated by statute (i.e. those that either operate automatically by virtue of statute or that a statute provides are mandatory on request)
Formal Notice of Application/Motion Required
- Unless otherwise directed by a judge, any person seeking a discretionary order restricting publication of any Superior Court proceeding must serve and file a notice of motion or application and any supporting materials, in accordance with the applicable procedural rules.
Notification of the Media
Unless otherwise directed by a judge, the person seeking the publication ban (the requesting party) must provide notice to the media of the motion/application, using the procedure set out in this section.
The requesting party must complete and submit the “Notice of Request for Publication Ban” form available on the Superior Court of Justice website.
The length of notice required for the submission of the Notice of Request for Publication Ban is the same as the length of notice required under the applicable procedural rules for the serving and filing of the Notice of Application or Notice of Motion.
The information on the Notice of Request for Publication Ban will be distributed electronically to members of the media who have subscribed to receive notice of all publication ban applications/motions in the Superior Court.
Any member of the media who wishes to receive copies of the Notices prepared and submitted under this section should submit a request through the Superior Court of Justice website.
The requesting party may be required to produce a copy of the Notice of Request for Publication Ban to the Court at the hearing of the application/motion in order to establish that notice was provided in accordance with this section.
60This practice direction flows from the open courts principle, which is a fundamental principle of any free and democratic society. Justice is usually best served when it is meted out in the public eye, and the circumstances in which a publication ban will be granted are rare.
61In this case, the publication ban came about as a result of the motion of Snowie J. In her reasons, she stated as follows:
This motion was an oral motion and was argued after the Court raised the issue and counsel all had 2 hours to research the issue and get instructions. Both Plaintiffs’ counsel seek the Ban Order. Counsel for the Defendants does not now have instructions to seek this order.
I am dispensing with the need for a formal application to be brought and the notice to the media of a motion/application. Because this is a Defamation case, I do not wish to leave the door open to the Defendants to continue their heinous attack on the reputation(s) of the Plaintiffs pending Trial by going through a back door now that the front door (the injunction) has been closed to them.
62In my view, there are two significant issues that arise because of the approach adopted by the motions judge. First, there is the application of the open courts principle, which I referred to above. This principle has been described in A.B. v. Bagg Communications (2012 SCC 46, [2012] 2 S.C.R. 567 at paragraph 11):
The open court principle requires that court proceedings presumptively be open and accessible to the public and to the media. This principle has been described as a “hallmark of democratic society” (Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R 332, at para. 23)…
63The Supreme Court of Canada has outlined the test to be applied in granting a publication ban in a number of cases, including Sierra Club of Canada v. Canada (Minister of Finance) ([2002] 2 S.C.R. 522). The test itself is described as follows (at pages 543-544):
A confidentiality order under Rule 151 [of the Federal Court Rules] should only be granted when:
(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes public interest in open and accessible court proceedings.
64Particularly important for this case is the Court’s observation (at page 545) that:
Finally, the phrase “reasonably alternative measures” requires the judge to consider not only whether reasonable alternatives to a confidentiality order are available, but also to restrict the order as much as is reasonably possible while preserving the commercial interest in question.
65In the circumstances, it is clear that Snowie J. did not consider whether there were reasonable alternative measures that were available to her. On that basis alone, there is good reason to doubt the correctness of her decision.
66The Supreme Court has also indicated that the Courts must be cautious in determining what an “important commercial interest” is, and that these orders involve infringements on freedom of expression. None of those issues were considered by Snowie J. and it is not clear to me what the important commercial interest would be. As a result, there are reasonable grounds to doubt the correctness of Snowie J.’s decision under Rule 62.02(4)(b).
67The second part of the test under Rule 62.04(4)(b) is that the proposed appeal involves matters of such importance that leave to appeal should be granted. The Plaintiffs argue that this case simply involves an unfortunate situation between members of a family. While that is true, the legal issues raised by the granting of a publication ban engage issues of the openness and transparency of our Court system that lie at the heart of our democratic institutions and can affect the integrity of the Court system. In my view, these issues are sufficiently important that leave to appeal should be granted.
68In addition, there is the fact that the reasons for the publication ban flow from the decision of Snowie J. to grant the injunction. As outlined above, I am of the view that the test the motions judge applied to the injunction is in conflict with the bulk of the case-law from both Canada and elsewhere in the Commonwealth and there is a real possibility that the outcome of this case will change if the more stringent test is applied.
69A key part of Snowie J.’s reasons for granting the publication ban were to prevent the Defendants from seeking to continue to make various statements about the Plaintiffs through the media or other outlets in defiance of the injunction. If Snowie J’s decision to grant the injunction is reversed on appeal, then the arguments for granting a publication ban become significantly weaker as there would be no prohibition on the continued operation of the website.
70Either of these reasons are sufficient to conclude that there is good reason to doubt the correctness of the motions judge’s decision to grant a publication ban. Further, as I have stated at paragraph 67 above, there are issues of great significance that are engaged by this decision.
71As a final matter, I note that the Plaintiffs have argued that the Defendants are raising issues with respect to the publication ban that they did not raise in front of Snowie J. The Plaintiffs argue that the matter should not be “re-litigated” on appeal and I should not consider these arguments. In support of this position, the Plaintiffs point to the decisions of the Court of Appeal in Craven v. Osidacz (2014 ONCA 329) and Hojjatian v. Intact Insurance Co. (2016 ONCA 904). In the circumstances of this case, I reject that argument.
72First, in both Craven and Hojjatian, the Court was concerned with the addition of new issues or causes of action that had not been considered in the Court below. In this case, the Defendants are simply advancing new arguments about the same issue (a publication ban) that was considered by the motions judge.
73Additionally, I have concerns about the procedural fairness of the Court advancing an issue on its own motion and providing the parties only two hours to consider that motion and obtain instruction. The position that the Plaintiffs are taking before me amply illustrates my concerns.
74The Defendants, while arguing a very complex and factually detailed motion, were given two hours to consider whether a publication ban should also be applied. The Plaintiffs now seek to prevent the Defendants from relying on any arguments that they were not able to come up with in the two hours that they were given by the Court.
75There are a number of other ways that the Court could have addressed the publication ban issue, including implementing a temporary ban while a fuller argument was sought about the publication ban. The Court proceeded to address the matter very quickly, however, because of the Court’s concern about continued publication. That speed is within the Court’s discretion, but the Defendants should not be disadvantaged as a result of it.
76In the circumstances, I reject the Plaintiffs arguments that the Defendants cannot now raise these issues. Acceding to these arguments in light of the circumstances of this case would be to work an injustice on the Defendants.
77Leave to appeal on the issue of the publication ban is also granted.
Issue #4- Costs
78In this case, the very substantial costs awards that the Plaintiffs were granted flow from the Court’s determination that the relief the Plaintiffs were seeking should be granted. In addition, the Court considered the fact that the Plaintiffs had been as successful as their Offers to Settle in order to resolve the motion.
79In light of the fact that leave to appeal has been granted on all of the other issues before the Court, it is appropriate to grant leave to appeal on the costs decision as well. As I have set out above, there is a real likelihood that some of the decisions in this case could be changed.
80As a result, there is a real likelihood that the Plaintiffs will not, at the end of the Divisional Court hearing, be 100% successful in their motions, and that they will no longer have done as well as their offers to settle. As a result, the Costs order may need to be varied.
81Therefore, I am granting leave to appeal the costs order as well as the merits of the case.
82I would note that the fixing of costs is usually given a wide discretion. In my view, other than the fact that the underlying decisions may change, there is no basis for granting leave to appeal the costs order.
Disposition
83For the foregoing reasons, I am granting leave to appeal to the Defendants (Appellants) on all of the issues raised by the endorsements of Snowie J. The questions that are to be asked of the Divisional Court are as follows:
(1) Did the motions court judge err in law in granting the Defamation Injunction, and if so, should the Defamation Injunction be set aside? (2) Did the motions court judge err in law in granting the Harassment Injunction, and if so, should the Harassment Injunction be set aside? (3) Did the motions court err in law in granting the Publication Ban, and if so, should the Publication Ban be set aside? (4) Did the motions court judge err in law in making her orders as to costs, and if so, should the orders as to costs be set aside?
84The costs of this leave to appeal application are left to the panel hearing the appeal.
85The publication ban and the injunction remain in effect until the Divisional Court has the opportunity to consider them. As a result, I have anonymized these reasons, but permitted their publication.
LeMay J.
DATE: March 7, 2017