Court File and Parties

Court File No.: CV 17-29 Date: 2017/05/12 Ontario Superior Court of Justice

Between: Upper Canada District School Board and Patricia Brown, Plaintiffs – and – James Gilcig o/a Seaway Media, Defendant

Counsel: Kate Genest, Counsel for the Plaintiffs Lawrence Greenspon and Tina Hill, Counsel for the Defendant

Heard: April 28, 2017

Leroy J.

Reasons on Interim Injunction Motion

Introduction

[1] The plaintiffs seek an interim injunction compelling the defendant to remove two publications posted on the internet under the auspices of the cornwallfreepress and to prohibit like publications pending trial. For ease of reference, those publications are appended.

Issue

[2] The Canadian Charter of Rights and Freedoms guarantees the right of freedom of expression and of the press. The right to free expression does not confer licence to ruin reputation. The dissemination of defamatory comments that discredit an individual in the estimation of right-thinking members of society generally is actionable in damages.

[3] For the plaintiffs to succeed on this motion, their burden is to establish that this action will almost certainly succeed. An injunction should only issue where the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal.

[4] There are dangers in making a preliminary assessment of merits. Those dangers are heightened in a case involving restraint of future defamation where the cogency threshold is very high. A finding that a party has satisfied this onus necessarily connotes that he/she/it is very, very likely to succeed at trial.

Factual Overview

[5] A resident of Cornwall who conducted weekly musical practices at a local secondary school deposed that he attended the school on four occasions in October 2013 and each time observed two swastikas on school walls. He telephoned the principal to notify her after the first view on October 3rd. He re-attended on October 10, 2013 and observed two swastikas in the same location. He called the principal again. He states the principal’s response was “she did not get to it”. He states the principal did not say that the swastikas were removed and re-drawn. He re-attended on October 17th and noticed the swastikas again. In paragraph 6 of his affidavit, the witness states: This time, I went to see Ms. Brown personally to notify her that the swastikas were still there. She said that she had a lot of things to take care of and that she doesn’t go to the boys’ washroom. She assured me it would be taken care of. She never told me that the swastikas had been removed and had re-appeared.

[6] The resident returned to the school on October 18th with the defendant James Gilcig, observed swastikas on the wall and they attended the principal’s office. They met with the vice-principal in Ms. Brown’s absence and informed him of the situation as they saw it. The vice-principal is credited with ensuring the swastikas were covered over within an hour.

[7] By the defendant’s accounting, this graffiti could have been known to the plaintiff Brown for fifteen days in total or ten school days before action was taken for its removal.

[8] The plaintiff, Ms. Brown deposed that on or about October 3, 2013 she learned someone had drawn graffiti depicting swastikas on the school boys’ washroom wall. She immediately instructed maintenance staff to remove the graffiti and it was removed.

[9] On October 10th, she learned that the swastika images were re-drawn. She immediately instructed that the images be immediately removed and they were.

[10] She learned from the vice-principal that James Gilcig attended the school on October 18th to complain about swastika graffiti in the boys’ washroom. In her absence, the vice-principal instructed maintenance to remove the graffiti and it was.

[11] The same graffiti reappeared several times and was removed by maintenance staff in accordance with Ms. Brown’s instruction.

[12] Ms. Brown conducted an investigation to identify the person(s) responsible for the graffiti. The student was identified and disciplined.

[13] Ms. Brown conducted a school-wide educational event on November 12, 2013 to educate the student body about the Holocaust and the importance of combating racism, intolerance, hate and discrimination. She solicited a Holocaust survivor to speak to the student body about her experiences.

[14] She expressed her sentiments with the words:…we are saddened and truly sorry that these incidents occurred in our school and more importantly that the use of swastikas still occurs in our society. It is our hope that as a school community, we will raise awareness and care about this important issue.

[15] Ms. Brown deposed that the defendant James Gilcig attended the assembly and sat in the front row.

[16] Beginning October 18, 2013, Mr. Gilcig began publishing articles under the auspices of cornwallfreenews and the jewishtribune that the plaintiffs concluded were defamatory. The impugned publications were released on October 18, 2013, October 21, 2013, January 31, 2014, February 7, 2014 and February 25, 2014. The plaintiffs made repeated requests of the defendant to remove the 2013 and 2014 publications.

[17] The plaintiffs commenced an action against the defendant on April 22, 2014. The defendant delivered a statement of defence on June 13, 2014. The defendant published two further impugned articles on January 27, 2015 and March 1, 2015. The action settled in July 2015. The defendant withdrew the impugned publications and the plaintiffs consented to an order dismissing their claim without costs.

[18] Plaintiffs’ counsel communicated the “other side of the story” to the defendant on February 20, 2014, as follows: “Specifically, when Ms. Brown received notice of the appearance of swastikas in the boys’ washroom, she and the school took immediate steps to remove the graffiti as soon as reasonably possible. Unfortunately, the incident reoccurred several times, each time requiring removal, performed by the custodian pursuant to Ms. Brown’s instructions. At the same time, Ms. Brown and the school took investigative steps to identify the perpetrator. Through their diligent efforts, the student who was committing these acts was identified and appropriately disciplined.”

[19] The defendant resumed public rebuke aimed at the plaintiffs over the events of October 2013 in March 2017. The first publication issued in the cornwallfreepress on March 2, 2017. Counsel for the plaintiffs demanded withdrawal. Mr. Gilcig complied. Mr. Gilcig resumed on March 20 and 27, 2017 respectively. Those publications remain posted on the cornwallfreepress site. They are the subject of this motion for interim injunctive relief.

[20] Mr. Gilcig denies making false and defamatory allegations against the defendants. He relies on the defences of truth, fair comment, and public interest responsible journalism.

Governing Principles

Interim Injunction

[21] The general test for an interim injunction is well known. Originally set out in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396, [1975] 1 All E.R. 504 (H.L.), and affirmed and further refined in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385, at pages 332-34, the three-stage test is as follows:

First, there must be a preliminary assessment of the merits of the case to ensure there is a serious question to be tried. The threshold is generally a low one. In some instances this is elevated to require a strong prima facie case.

Second, it must be shown that the applicant would suffer irreparable harm if the injunction was not granted.

Third, the balance of convenience must be assessed - that is, pending trial, which party would suffer greater harm from the granting or refusal of the injunction?

[22] In defamation cases, the test is modified.

[23] In Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, 157 D.L.R. (4th) 385, the majority ruled that the Cyanamid test is inappropriate to circumstances involving restraint of defamatory utterances. The Cyanamid test is designed primarily to apply to disputes arising in the commercial context. The Supreme Court approved Rapp v. McClelland & Stewart Ltd. (1981), 34 O.R. (2d) 452, 128 D.L.R. (3d) 650 (Ont. H.C.), at pages 455-56:

The guiding principle then is, that the injunction should only issue where the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal. To put it another way, where it is impossible to say that a reasonable jury must inevitably find the words defamatory, the injunction should not issue.

... American Cyanamid ... has not affected the well-established principle in cases of libel that an interim injunction should not be granted unless the jury would inevitably come to the conclusion that the words were defamatory.

Justice Bastarache approved the following statement of the test from Injunctions and Specific Performance (2nd ed. 1992 (loose-leaf)), Robert Sharpe says the following, at paras. 5.40-5.70 (pp. 5.2-5.4):

There is a significant public interest in the free and uncensored circulation of information and the important principle of freedom of the press to be safeguarded. . . .

The well-established rule is that an interlocutory injunction will not be granted where the defendant indicates an intention to justify [i.e. prove the truth of] the statements complained of, unless the plaintiff is able to satisfy the court at the interlocutory stage that the words are both clearly defamatory and impossible to justify.

. . . it seems clear that the rule is unaffected by the American Cyanamid case and that the balance of convenience is not a factor.

[24] Recently, Justice Corbett in reasons for decision in Dale and Lessman LLP v. Atas, 2016 ONSC 5911 at paras 28 and 29 wrote:

28 In cases where the plaintiffs seek to restrain speech, the test on the merits is more stringent. Where a defendant has pleaded the defence of justification, appellate courts have held that the plaintiff must establish a high degree of certainty that it will succeed on the issue of liability. The precise formulation of the test is not entirely clear, with some dicta going so far as to suggest that only where it is "impossible" for the defendant to justify the words that they should be restrained on an interlocutory basis.

29 This requirement has been interpreted contextually in some of the cases, and in my view that approach is the correct one: all of the circumstances of the case must be considered in order to decide if the plaintiff's case is strong enough to warrant an interlocutory injunction citing Canadian Liberty and Palen v Dagenais, 2012 SKQB 383.

Summary

[25] An injunction to restrain 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 clearly defamatory and impossible to justify.

[26] Although the test to obtain an injunction to restrict free speech is high, it is not insurmountable. The plaintiff must show the case at trial is close to ironclad. This factors in the defendant’s ability to justify the words complained of.

Defamation

[27] Defamation is communication about a person that tends to hurt the person’s reputation. It causes the reader to think less of the person.

Defences to defamation

[28] As noted, the defences pleaded include truth (justification), fair comment and public interest responsible journalism/responsible communication on matters of public interest.

[29] A true statement may hurt a person’s reputation. If the defendant can prove on a balance of probabilities that the statement is true, the defence is made out.

[30] Fair comments made honestly and in good faith on matters of public interest are protected against an action for defamation, unless made maliciously. The statement must be one of comment and not of fact, and in order to be fair, it must be an objectively honest expression of opinion on facts which are true and known to the persons to whom the comment is made. Where the comment imputes evil, base or corrupt motives, it must also be shown that such imputations are warranted by the facts and be drawn by a reasonable person. The public interest may be shown by the importance of the person about whom the comment is made, or because of the interest generated by the event, occasion or circumstances giving rise to the comment – Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition Chapter 1(1.5)(2)(f).

[31] Journalists may report statements and allegations – even if not true – if there is a public interest in distributing the information to a wide audience. This defence is contextual, having regard to all the circumstances and applies when the news was urgent, serious and of public importance and the journalist used reliable sources and tried to get and report the other side of the story.

[32] The basis for this defence derives from the Supreme Court ruling in Grant v. Torstar Corp., 2009 SCC 61 where the context was depicted as freewheeling debate on matters of public interest is to be encouraged and the vital role of the communications media in providing a vehicle for such debate is explicitly recognized in the text of s. 2(b) itself. While the law must protect reputation, a regime of strict liability is not justifiable.

The law of defamation accords no protection for statements on matters of public interest published to the world at large if they cannot be proven to be true

To be protected by the defence of responsible communication, first, the publication must be on a matter of public interest. Second, the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances. Paras 95, 98, 99.

In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole. The defamatory statement should not be scrutinized in isolation. To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public, or a segment of the public, has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached. Public interest is not confined to publications on government and political matters, nor is it necessary that the plaintiff be a “public figure”. Paras 101, 105, 106.

If public interest is shown, the jury decides whether, on the evidence, the defence of responsible communication is established. The following factors may aid in determining whether a defamatory communication on a matter of public interest was responsibly made: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and (h) any other relevant circumstances. Paras 110, 126, 128.

Principles Applied

[33] There are circumstances when discretion is the better part of valour. For the reasons that follow, I conclude this is such a circumstance for the defence.

[34] The defence assertions inherently serve to discredit the plaintiffs’ reputations in the estimation of right-thinking members of society generally. The plaintiffs serve an integral role in the function of the community with heavy reliance on their collective sense of liberalism, judgment, transparency and competence. The characterization of a high school principle as incompetent racist can be none other than a discredit to reputation. The suggestion that the board engaged in a cover-up of incompetence and racism achieves the same.

Defences

Responsible Communication

[35] The merit of this defence lies in the value inherent in timely publication of matters involving serious allegations, important to the public that lug a sense of urgency. The journalist faced with these exigencies who has tried and failed to get the other side can be excused for not getting and not reporting both sides of the story.

[36] The two publications do not disclose to the reader that the core occurrences transpired two and one-half years ago. The context conveyed is that of recency. The passage of time significantly erodes legitimate public interest.

[37] If however the defendant can establish the requisite legitimate public interest contemplated by this defence, the focus shifts to whether the defendant’s statements were responsible.

[38] The exigencies that drive this defence evaporated with the passage of time.

[39] Here, the plaintiffs communicated its side of the story to the defendant in early 2014. The defendant did not have to investigate; it was handed to him. Notwithstanding, the defendant steadfastly neglected to report that side of the story.

[40] The cogency of the publication depended on withholding the other side’s narrative from the audience and embellishing the time lapse context from at most ten school days to the context used, namely a month.

Fair Comment

[41] A fair comment is an objectively honest expression of opinion with respect to facts which are true and known to the persons to whom the comment is made – i.e. set out in the article.

[42] The reading public could not know the facts or assess the facts and opinion without disclosure of both sides of the story.

Justification (truth)

[43] The truth of the content of any publication protects the author who holds to the truth.

[44] In this case, there are two salient issues of fact.

[45] The first is overstatement. The defence evidence on the motion, at its best, exposes an interval of fifteen days from notification to removal of the offensive drawings. Within that interval, there were ten days of school. The defendant aggrandized this putative interval to nearly a month – paras. 1 & 8 March 20 and about/approximately a month – paras 4 & 29 March 27.

[46] The fact finders’ determination of the second factual issue will likely have a prominent place in the trial outcome. The defence version is based on three observations at two seven-day intervals followed by the defendant’s observation the ensuing or fifteenth day. The plaintiffs do not take issue with the observations of the reporting witness. They do take issue with his and the defendant’s surmise. The plaintiffs’ version is that over the fifteen-day interval and perhaps beyond, the offensive drawings were covered several times in the context of persistent repeated reappearances immediately on discovery.

[47] That is a contested fact. The evidence from the maintenance custodian(s) who performed the paint-overs will be persuasively probative.

Conclusion

[48] The plaintiffs’ motion has to be dismissed. Without the sworn deposition of the maintenance staff tasked to cover the offensive markings, I am left to speculate and am unable to confidently conclude a jury verdict in favour of the defendant at trial would be perverse.

[49] That said, if the custodian confirms timely responsive instruction from the principal’s office to cover the swastikas, as they appeared, thwarted by a persistent perpetrator, the substance that might ground Mr. Gilcig’s comment/reportage evaporates to the point of disappearance leaving him without defence to defamation and exposed to significant damage award and costs.

[50] The lacuna in the plaintiff’s evidentiary record that is the omission of the custodian’s understanding of instructions relative to this matter foils the plaintiffs’ motion for the interlocutory injunction sought.

[51] It is, however, a Pyrrhic victory for the defendant. In the circumstances, having regard to the interests at stake, the plaintiffs are not foreclosed from returning the motion with a more fulsome record.

Costs

[52] If the parties are unable to agree on costs, they are to deliver written submissions within fifteen days.

The Honourable Mr. Justice Rick Leroy Released: May 12, 2017