CITATION: Levant v. Day, 2017 ONSC 5956
COURT FILE NO.: CV-16-554290
DATE: 20171018
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ezra Levant, Plaintiff
AND:
Robert P. J. Day, Defendant
BEFORE: Carole J. Brown, J.
COUNSEL: A. Irvin Schein, for the Responding Party/Plaintiff
Jeff G Saikaley, for the Moving Party/Defendant
HEARD: June 22nd and September 12th, 2017
ENDORSEMENT
[1] The moving party defendant, Robert Day, seeks an order dismissing the action brought by Ezra Levant against him pursuant to section 137.1(3) of the Courts of Justice Act, R.S.O. 1990, c. C 43 (“CJA”), the “anti-SLAPP” provisions, which provide for dismissal of a defamation action where the court is satisfied that the proceeding arises from an expression made by a person relating to a matter of public interest. He further seeks damages and costs.
[2] Section 137.1 of the CJA provides that where a proceeding is brought regarding a statement relating to a matter of public interest, a defendant may seek a preliminary judicial assessment of the merits of the claim. In a preliminary review under section 137.1 of the CJA, the defendant must establish that the impugned expression is on a matter of public interest. The plaintiff then bears the onus of showing that: (1) there are grounds to believe that his or her claim has substantial merit; (2) there are grounds to believe that the defendant has no valid defence; and (3) the harm that has been or is likely to be suffered by the plaintiff is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
[3] The purpose of sections 137.1-137.5 of the CJA are to encourage individuals to express themselves on matters of public interest; to promote broad participation in debates on matters of public interest; to discourage the use of litigation as a means of limiting expression on matters of public interest; and to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action: 1704604 Ontario Ltd. v Pointes Protection Assn, 2016 ONSC 2884, para 24.
Background Proceedings
[4] While a section 137.1 motion is generally brought at an early stage in the proceedings, and is intended as a preliminary judicial process and a fast-track means of identifying and dismissing frivolous claims aimed at stifling public participation, this action was brought at a late stage in the proceedings. The pleadings have closed, a demand for particulars was served and answered, affidavits of documents were exchanged, the defendant amended his statement of defence and was examined for discovery. The plaintiff’s examination for discovery and the mandatory mediation session were scheduled but subsequently cancelled by the defendant. The plaintiff’s trial record was served and filed. The defendant subsequently brought this motion.
[5] It is the position of the responding party plaintiff that bringing the motion at this stage, when it would normally be brought at the beginning as a preliminary assessment of the merits of the case, was simply a delay tactic on the part of the moving party defendants.
The Facts
[6] Ezra Levant is the principle of an online media outlet, Rebel News, which is known as an online media site that comments on political and social issues, espousing right-wing or right-leaning views.
[7] Robert Day has been a regular participant on social media for over a decade and maintained a blog entitled Canadian Cynic. His views are now almost exclusively on Twitter. In his factum, the moving party describes his Twitter views as liberal, progressive and left wing, occasionally expressed through the use of salty language and profanity Based on the evidence before this Court, I would describe his Twitter posts to be more of the latter than the former.
[8] Both parties are of some notoriety.
[9] From early May through early June 2016, Mr. Day posted Tweets criticizing the fundraising campaign of Rebel News to raise money for the victims of the Fort McMurray fires. It is the position of Mr. Day that these ongoing Tweets were aimed at questioning aspects of the fundraiser put in place by Rebel News and were both fair comment and a reasonable, honest expression of opinion on a matter of important public interest. It is these Tweets of Mr. Day (“the Day Tweets”) which are the subject of this action.
[10] The Day Tweets have all been produced in evidence and numerous appear in the factum of the respondent moving party.
[11] In a first series of Tweets, published on May 4, 2016, Mr. Day stated that Mr. Levant was engaging in a “scam” of “unadulterated sleaziness” so that he, either directly or indirectly, could improperly collect other people’s charitable tax credits and commit accounting fraud. This series of Tweets appears as follows:
a. 11:16 AM I think I see the scam… Ezra will take a tax write-off based on giving out things of “value”. What a con.
b. 11:20 AM Wait a minute… You get a tax credit if you donate to the Red Cross but not if you donate to Rebel Media…
c. 11:21 AM… So Ezra is collecting donations, which he will then donate to claim the now allowable tax credit…
d. 11:22 AM… All the while claiming a tax write-off by reimbursing donors things of “value”, for which he decides the value.
e. 11:23 AM Holy Mother of God, what a beautiful scam. You really have to appreciate it for its pure and unadulterated sleaziness and opportunism.
f. 11:28 AM I may dislike Ezra, but I have to admire the cold-blooded cynicism of someone who enriches himself at the expense of forest fire victims.
[12] Further, the defendant stated as fact that the funds raised would be secretly diverted away from the Red Cross and Fort McMurray, and toward the plaintiff’s personal expenses including for legal fees:
a. 4:01 PM Have to say, props to Ezra Levant for convincing his groupies to pay off his defamation judgments and legal fees.
[13] Based on the evidence, the Day Tweets included many factual allegations that were false, including that the plaintiff was deceiving donors, by falsely promising that they could receive tax receipts, that the plaintiff was someone who “enriches himself at the expense of forest fire victims”; and that the plaintiff has done this “scam” before.
[14] On May 13, 2016, the defendant posted Tweets, repeating the accusation that the plaintiff and/or Rebel Media were planning to improperly claim other donors’ charitable tax receipts, and added the new contention that the plaintiff had actually “cost” the residents of Fort McMurray up to $300,000.
a. May 13 11:09 AM… Fort Mac gets fucked out of matching federal (and possibly provincial) funds, costing more than 150 K (or is it 300 K?)…
b. 11:10 AM… Given the use of Indigogo, 5% is taken off the top and possibly more if one uses PayPal, screwing Fort Mac out of even more…
c. 11:11 AM… On top of which, since donors donated to Rebel Media instead of Red Cross, they are not eligible for charitable deduction credit…
d. 11:12 AM… Whereupon Rebel Media may very well, when they finally donate all that cash, attempt to claim it as a corporate deduction.
[15] In fact, donors were eligible for charitable tax receipts and the majority of the contributions were received by the Red Cross early enough to be matched by federal and provincial government funding. Indeed, on May 13, 2016, the Red Cross update on the fundraising website expressed gratitude and confirmation that they would provide a charitable tax credit to donors using the Rebel News website. The defendant saw this posting but neither retracted nor corrected his previous assertions that the plaintiff was conducting a scam, diverting funds away from Fort McMurray fire victims, keeping charitable tax receipts for himself and denying those tax receipts to the proper donors.
[16] The Day Tweets continued.
a. May 13, 2016 11:25 AM Wait… What the fuck?
b. 11:26 AM As if the Red Cross doesn’t have enough to do, now they have to allocate resources to clean up Ezra’s mess?
c. 11:29 AM Pardon my cynicism, but why should all those donors get tax receipts, since they didn’t follow the rules? Fuck em.
d. 1:42 PM Apparently, Rebel Media is now an official fundraising arm of the Canadian Red Cross. Sweet.
[17] On May 21, 2016, the defendant claimed that the donations through the fundraising website did not qualify as charitable donations:
a. May 21, 2:14 AM By the way, here’s the two ways Ezra completely fucked all those Indigogo donors up the ass.
b. 2:16 AM First, the rule seemed pretty clear - only donations to registered charities qualify as charitable donations.
c. 2:23 AM If I tried I could not have invented a scheme as sleazy or grandstanding or narcissistic as what Ezra came up with.
[18] On June 1, 2016, the defendant claimed that he had authoritative, factual information that the plaintiff was not conducting the fundraising website properly, was not telling the truth about its compliance, and because of this, Fort McMurray victims would not receive any matching funds from government.
a. June 1, 2:39 AM BTW, I am informed by knowledgeable people that Ezra’s bundling of donations is not eligible for matching funds.
b. 2:40 AM In short, with his attention whoring vanity project Ezra just fucked Fort McMurray out of $162,000 of federal funds.
c. 2:46 AM Because, once again, I have been assured that donors to Ezra’s vanity charity are not getting receipts. Period.
[19] The Day Tweets continued on June 3 and 4, 2016.
a. 11:50 AM… However if you already have a reputation as a liar, con artist and scumbag, there would be little of your reputation to damage.
b. 12:37 PM By the way, it is exactly accurate to say that Ezra Levant siphoned his money away from the Red Cross.
[20] In Tweets on June 4, Mr. Day continued to state that Ezra was “fucking donors out of their tax receipts”, was “a sleazy opportunist, hack, con artist and grifter”, and that he was raising the money for himself.
Issues
[21] Pursuant to section 137.1 of the CJA, Mr. Day must first establish that his expression relates to a matter of public interest. If he is able to establish this, the onus shifts to Mr. Levant, who must establish that: (i) there are grounds to believe that his claim has substantial merit; (ii) there are grounds to believe that the defendant has no valid defence; and (iii) the harm likely to be or that has been suffered by the plaintiff is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
Does the Impugned Expression Relate to a Matter of Public Interest?
[22] The words “public interest” are not defined in the legislation. However, in interpreting this phrase in the context of section 137.1, the courts have looked to the definition of “matters of public interest” set forth in the Supreme Court Canada decision of Grant v Torstar Corp., 2009 SCC 61, [2009] 3 S. C. R. 640 (S.C.C.).
[105] To be of public interest, the subject matter “must be shown to be one of inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”, Brown, volume 2 at pp 15-137 and 15-138. The case law on fair comment “is replete with successful fair comment defences on matters ranging from politics to restaurant and book reviews”: Simpson v Mair, 2004 BCSC 754, 31 BCLR (4th) 285 at paras 63, per Konigsberg J. Public interest may be a function of the prominence of the person referred to in the communication, but mere curiosity or prurient interest is not enough. Some segment of the public must have a genuine stake in knowing about the matter published.
[23] Where the pith and substance of the matter is a defamatory personal attack thinly veiled as a discussion on matters of public interest, the court has all the tools it requires to determine the true nature of the expression and rule accordingly”: see Able Translations Ltd v Express International Translations Inc., 2016 ONSC 6785.
[24] I have thoroughly read the impugned Twitter statements made by Mr. Day. While issues related to the Fort McMurray fire are of public interest, and some of the Tweets referred to Rebel News, the majority of the Day Tweets are thinly veiled attacks on Mr. Levant. I am satisfied that they are, in pith and substance, not comments on matters of public interest. Indeed, as I have found, below, they are not “comments” but rather statements made to appear as “fact”, but without any established basis. I am satisfied that they are, in pith and substance, direct personal attacks on Ezra Levant.
[25] Accordingly, I find that Mr. Day has not established that his Tweets meet the onus under s. 137.1(3). I do not find that the defendant has established the impugned expression to be on a matter of public interest. It is instead a thinly veiled attack against Ezra Levant.
[26] However, in the event that I am not correct in my analysis as regards the issue of public interest, I will proceed to the next steps of the analysis. The onus shifts to the plaintiff to establish the three criteria set forth above at paragraphs 2 and 21.
Are There Grounds to Believe that the Proceeding Has Substantial Merit?
[27] The threshold for the responding party to meet the test in section 137.1(4)(a)(i) and (ii) of the CJA is a low one, given the significant remedies in section 137.1 and the protection for litigants to bring legitimate claims before the court: 1704604 Ontario Ltd v Pointes Protection Assn, supra.
[28] The responding party must establish an objective basis for the belief that there is substantial merit to the claim which is based on compelling and credible information. “Grounds to believe” means “something more than mere suspicion, but less than the standard applicable in civil matters of proof on a balance of probabilities” and that the “assessment must be undertaken while remaining vigilant of the risk of applying the higher civil proof”: Able Translations Ltd. v Express International Translations Inc., supra.
[29] The plaintiff, in a defamation action, must establish the following: (i) that the words complained of referred to the plaintiff; (ii) that the words were published by being communicated to at least one other person; and (iii) that the words complained of were defamatory, in the sense of tending to lower the plaintiff’s reputation in the eyes of the reasonable person: Thompson v Cohodes, 2017 ONSC 2590.
[30] In this case, I am satisfied that there is an objective basis to believe that the words complained of referred to Ezra Levant personally. While the defendant maintains that the expression was aimed at a corporate entity, namely Rebel News, and not the defendant personally, I have reviewed the Tweets which are the subject of the libel action. While some mentioned Rebel News, the vast majority were aimed directly at Ezra Levant personally. There are grounds to believe that the Tweets were communicated to more than one other person. The words stated, inter alia, that Mr. Levant was committing fraud, was a con artist, scammer and grifter. They are reasonably interpreted as alleging that Mr. Levant committed fraud, and was using the sympathy raised regarding the Fort McMurray fire victims to take advantage of contributors for personal gain. I am satisfied that there is an objective basis to believe that these words would tend to lower the plaintiff’s reputation in the eyes of the reasonable person.
[31] Mr. Day was advised several times by Mr. Levant that the Twitter statements as regards the tax receipts and the matching funds were not true, and asked to correct the statements, but failed or refused to do so. Further, he saw the Canadian Red Cross posting on May 13, confirming that tax receipts would be provided, but persisted in his statements that no tax receipts would be provided.
[32] As set forth at paragraph 40, below, he admitted, inter alia, that he had not made inquiries with the government as regards matching funds, and in examination for discovery, accepted that all donors had received tax receipts.
[33] For the purposes of this motion, I am satisfied that there are grounds to believe that the claim has substantial merit.
Are There Valid Defences?
[34] The defendant advances two defences, firstly, fair comment and secondly, the failure of the plaintiff to serve notice pursuant to the Libel and Slander Act.
Fair Comment
[35] To establish a defence of fair comment, the comment must be on a matter of public interest, based on fact, recognizable as comment, although comment may include inherently debatable inferences of fact, and fairly made, in the sense that a person could honestly make the comment on the proven facts. If the defendant establishes that these elements are present, the defence may still be defeated if the plaintiff establishes that the defendant was actuated by malice: WIC Radio Ltd v Simpson 2008 SCC 40, [2008] 2 S.C.R. 420; Thompson v Cohodes, 2017 ONSC 2590.
[36] Statements of comment are statements of opinion, or inherently subjective and debatable inferences from facts as indicated in WIC Radio, supra. They are distinguishable from defamatory statements of fact, which purport to assert objective truth. If of fact, the words may be found to be a statement of fact: Thompson v Cohodes, supra. Allegations that one has committed or participated in a fraud, is an allegation of fact.
[37] For the purposes of this motion, the impugned “comments” were stated as fact. They include the following:
The defendant stated as a fact on numerous occasions on May 4 and 5 that donors to the fundraising website would not receive a tax credit. During his examination for discovery, the defendant accepted that all donors had received tax receipts.
The defendant stated as a fact that funds donated through the fundraising website would not attract matching funds. However, during his examination for discovery, the defendant admitted that he did not make any inquiries with the government regarding the matching of funds.
The defendant stated as fact that the plaintiff was receiving personal tax and financial benefits from the fundraising campaign. However, during his examination for discovery, the defendant admitted that he had no information about the plaintiff receiving any personal benefit from the fundraising campaign. He further admitted that he had no evidence of any donor having complained about the fundraising campaign, that he had not corrected the record with respect to the tax receipts, that there would be no unfairness to the fundraising campaign if all donors received tax credits, and that no one at the Red Cross ever said that the plaintiff was doing anything wrong.
[38] The statements made in the Twitter posts are stated as fact, rather than comment. These statements of fact made by the defendant have not been proven true.
[39] This was not expression on a matter of public interest, but personal attacks on Ezra Levant.
[40] For the purposes of this motion, there are reasonable grounds to believe that the Day Tweets were not comments based on fact. They were not recognizable as comment, but were statements of what purported to be actual fact, which Mr. Day continued to repeat, even after he knew the statements were not true.
[41] His statements were motivated by malice.
[42] The defence of fair comment is only available for comment based on facts proven to have been true: WIC Radio, supra. The allegations made by Mr. Day are not stated as comment, but as noted above, are stated as fact, have not been established, and indeed, some have been found and acknowledged by Mr. Day to be untrue. Accordingly, I find that there are reasonable grounds to believe that no defence of fair comment is made out. Accordingly, I find that there is no defence of fair comment made out.
Notice Pursuant to the Libel and Slander Act
[43] The defendant submits that the action fails on the basis of the plaintiff’s failure to provide notice pursuant to section 5(1) of the Libel and Slander Act (“the Act”). Section 5.1 of the Act provides that no action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to an adult at the chief office of the defendant. I note that no motion was brought at the outset of this action as regards the failure to give notice, which could have been done.
[44] As regards postings on Twitter, which are the subject of a libel action, there is no case law directly on point as regards whether such postings are subject to the Act. It has been recognized that an action in libel regarding a newspaper article, republished on the Internet, is subject to the Libel and Slander Act: John v Ballingall et al 2016 ONSC 2245, and see: Shtaif v Toronto Life Publishing Co. Ltd, (2013) ONCA 405 (Ont. CA). The case law relied upon by the defendant refers to online editions of traditional print newspapers and media broadcasts. It is the position of the responding party plaintiff that re-postings of traditional media broadcasts are distinguishable from publications and expressions made solely on social media sites such as Twitter.
[45] The legislative provision in the Act refers to libel in a newspaper or in a broadcast. There is no case law that interprets this provision to include social media. The defendant asks this Court to extend the Libel and Slander Act which uses these words and was originally intended to apply the media of the times to a new telecommunication technology. The defendant seeks to have this Court extend “broadcast” to social media such as Twitter.
[46] However, the parties have not provided this Court with any evidence regarding the nature, characteristics and functioning of the Twitter technology, nor have the parties provided any social policy reasons for interpreting or extending the meaning or definition of broadcast to include Twitter. The Court is not prepared to take judicial notice of these things. This Court is not prepared to make such a determination absent such evidence.
[47] Without any evidence regarding the nature, characteristics and functioning of the technology or the social policy reasons for extending the definition of broadcast to include Twitter, the Court is not prepared to take judicial notice of the characteristics and functioning of Twitter, nor the social policy reasons for extending the meaning of broadcast. This Court does not have sufficient evidence to make such a decision.
[48] I am therefore of the view that the Act, as presently worded, does not apply to Twitter posts.
[49] I find that there are grounds to believe that the defendant has advanced no valid defences.
Public Interest
[50] The last prong of the tripartite test is whether the harm that has been or is likely to be suffered by the plaintiff as a result of the libel complained of is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
[51] In order for the plaintiff to meet this onus in a defamation claim, the evidence of damages suffered or likely to be suffered in consequence of the impugned statements must be such that there is “credible and compelling evidence of harm that appears reasonably likely to be proved at trial”: Able Translations Ltd v Express International Translations, supra; Fortress Real Developments Inc. v. Rabidoux, 2017 ONSC 167.
[52] It is the position of the responding party plaintiff that he has suffered harm as a result of the defendant’s Twitter campaign against him and that the public interest favours the continuation of the proceeding. The plaintiff submits that the defendant’s Twitter campaign was not an effort to keep the fundraiser “in check”, but was rather a systematic effort to besmirch the plaintiff’s reputation, accusing the plaintiff, inter alia, of being a “cheat, a con and tax fraud”. While the initial focus of the campaign was to raise money for the victims of the Fort McMurray fire, the defendant used his Twitter campaign to attempt to shift the focus from raising money to an assault on the plaintiff’s integrity, without a factual basis. The plaintiff submits that there is a strong public interest in permitting this proceeding to continue in order to protect the reputation of those who are making an honest effort to fund raise for those in need and to condemn a relentless and baseless attack on an individual’s reputation which will also have the effect of chilling charitable fundraising campaigns.
[53] It is the position of the moving party that there is no demonstrable harm significant enough to outweigh the public’s interest in the statements made by the defendant, and that the plaintiff provides no evidence to support his allegations of harm. Indeed, the defendant maintains that the comments of Mr. Day were aimed at Rebel News, a corporate entity, and not at Ezra Levant, such that the claim has been improperly brought.
[54] I do not accept the moving party defendant’s position that the comments were aimed at a corporate entity rather than at Ezra Levant. I am of the view that the significant majority of the comments were aimed directly at Ezra Levant. As previously indicated I do not find the statements made to be “comments” for purposes of section 137.1 of the CJA, but rather statements of “fact” which were, indeed, demonstrated to be unproven and not established.
I am satisfied that the interest in permitting the within proceeding to continue to trial outweighs the public interest in protecting the impugned expression contained in the Day Twitters. In the circumstances of this case, there is no public interest in protecting said Twitters.
[55] The matter is to proceed expeditiously to trial.
Costs
[56] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.
Carole J. Brown, J.
Date: October 18, 2017