CITATION: Levant v. Day, 2017 ONSC 5988

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: September 12, 2017

RULING ON FRESH EVIDENCE MOTION

[1] Prior to rendering the decision in this matter, counsel for the moving party, Robert Day, contacted the Court to request that an urgent motion be brought to adduce fresh evidence in the context of the motion argued June 2 and 22, 2017. The motion was brought pursuant to the Courts of Justice Act, section 137.1 (the Strategic Litigation Against Public Participation or “SLAPP” provision) in the context of a defamation proceeding initiated by Ezra Levant against Robert Day.

[2] Mr. Saikaley, for the moving party seeks to introduce into evidence a one minute extract of a recording between Ezra Levant and an employee in England. The extract of the recording came to Mr. Day’s attention on August 17, 2017. Apparently, during this conversation with the departing employee from Mr. Levant’s company, Rebel News, Mr. Levant referenced a lawsuit in Ottawa as follows:

“There was a guy in Ottawa who talked about our crowdfunding so I sued him for $95,000. It’s not a lot of money, but it’s just I wanted to send a signal. And fucking this guy here is a five year trap. He’s in a five year trap.”

[3] It is the position of the moving party that this reference was as regards the lawsuit against Mr. Day and describes the lawsuit in terms that suggest it was intended as a SLAPP suit, and that Mr. Levant posted an entry on his company’s website, Rebel Media, on August 17, 2017, admitting that this recording was made of his conversation with the employee. He stated that Mr. Levant wrote on his website:

In fact, he [Mr. Robinson] learned that the two of them [Mr. Robinson and Mr. Llewelyn John] had secretly recorded our conversations when I was agreement to pay them off. Even was [sic] they were blackmailing me, they were setting up the next blackmail. I know this sounds so insane, but they did it – they secretly recorded me trying to talk them out of it, trying to reason them out of it, trying to negotiate them out of it – even threatening to sue them if they extorted me. I brought a copy of a lawsuit from Canada that I had filed, and said I’d do it to them. They recorded everything we said to wring more money out of us.”

Position of the Moving Party

[4] It is the position of counsel for the moving party that the statement made by Mr. Levant is evidence confirming that the lawsuit is a SLAPP suit and that it was brought for ulterior motives, namely to silence a critic. He states that the statement is also relevant to the moving party’s request for damages as it confirms Mr. Levant’s ulterior motive in commencing the action was to silence him and was an abuse of this Court’s process. He submits that the fresh evidence, if adduced, could or will probably have a deciding influence on the disposition of the motion.

[5] It is the position of the moving party that the extract sought to be introduced is clear evidence of the real reason for bringing the lawsuit, namely to send a signal and a “five year trap” to Mr. Day, contrary to his statement in his affidavit in the main action that the action was brought to protect his reputation.

[6] It is the position of counsel for the moving party that the excerpt from the recording and the article posted, considered together, paint a clear picture of Mr. Levant’s motives in bringing the present action and could be determinative of the motion.

[7] As regards the arguments made by the responding party, counsel for the moving party argues that settlement privilege does not apply, as there was no litigation instituted or contemplated, or alternatively if there was settlement privilege, it was waived by publicly airing the discussion on the internet. In this regard, he relies on the cases of Blue Line Hockey Acquisition Co. Inc. v Orca Bay Hockey Limited Partnership, 2007 BCSC 143; 725952 Ontario Ltd. v Desuri Homes Inc., 1995 CarswellOnt 2764; and Bellatrix Exploration Ltd. v Penn West Petroleum, Limited, 2013 ABCA 10.

Position of the Responding Party

[8] It is the position of Mr. Schein for the responding party that the alleged fresh evidence is not admissible, as the statement attributed to Mr. Levant was made on the occasion of settlement discussions between Mr. Levant and his employee and therefore was made on in occasion of settlement privilege. As regards the moving party’s alternative argument that if there is settlement privilege, it was waived, he argues that the fact that the employee decided to disclose the information does not waive the privilege for Ezra Levant.

[9] It is further the position of the responding party that the alleged fresh evidence is not relevant to the main motion. Mr. Schein argues that the reference to a “five year trap” does not indicate Mr. Levant’s intention, or that the lawsuit is brought for strategic reasons, indicating a SLAPP suit, but merely a reflection of the reality of legal proceedings, which often take years to resolve. He argues that there is no specific reference to this lawsuit, no specific reference to Mr. Day and no specific reference to the “crowdfunding” involved.

[10] He argues that the communications are not credible or reliable as only snippets of a negotiation are sought to be adduced, and not the entirety of what was said or what was or may have been said about the lawsuit.

[11] Finally, he argues that the tests set forth in section 137.1 of the CJA do not involve any consideration of the plaintiff’s intentions in commencing a lawsuit, but rather are intended to constitute an early assessment of the strength of the plaintiff’s claim and the strength of the defence put forward by the defendant. He argues that the alleged fresh evidence has nothing to do with these tests. He submits that the presiding judge is not to weigh the intention of the person commencing the lawsuit alleged to be a SLAPP suit, but rather to weigh and adjudicate upon the tests propounded. He argues that the policy of the legislation is not what is to be determined on the main motion, i.e. the intention of the plaintiff in bringing the action, but rather the motion under s 137.1 of the CJA is to determine whether the tests have been met. He submits that the policy behind the section has been translated into the tests to be met.

The Law

[12] The legal test for admitting new evidence on appeal is well settled. Fresh evidence will be admitted where: (a) the tendered evidence is credible; (b) it could not have been obtained prior to trial by the exercise of reasonable diligence; and (c) the evidence, if admitted, will likely be conclusive of an issue in the appeal: Sengmuller v Sengmuller, 1994 CarswellOnt 375 at para. 9. Where the issue involves the admission of fresh evidence after reasons have been released but before a final order is taken out, the trial judge must exercise discretion to re-open a trial sparingly and with the greatest care” so that “fraud and abuse of the court’s process do not result”: 671122 Ontario Limited v Sagaz Industries Canada Inc. 2001 SCC 59, [2001] 2 SCR 983 at para 61. Where the court has not yet reached a conclusion on the matter to be addressed by fresh evidence, as is the case here, the standard as to the likelihood of the fresh evidence changing the result may be somewhat relaxed, but the court will nevertheless be mindful of the need to avoid never-ending evidence: Jackson v Vaughn (City) 2009 CarswellOnt 152 at para. 22; see also Trade Capital Finance Corp v Cook, 2016 ONSC 5353 at para. 41.

[13] Thus, in the case of this motion, the evidence must be such that if it had been presented at the motion, it would probably have changed the result and it could not have been obtained by reasonable diligence prior to being heard.

Analysis

[14] As regards the tests for admission of fresh evidence, the parties do not dispute that the evidence sought to be adduced could not have been obtained prior to the hearing of the motion.

[15] The issues to be determined are whether the evidence is credible and admissible; and whether the evidence, if admitted, would probably change the result or probably have a direct effect on the disposition of the motion.

[16] I am mindful of the tests to be applied in the main motion. As set forth in the determination of the main motion, the moving party defendant, Mr. Day, must establish that his expression relates to a matter of public interest. If he is able to establish this, the onus shifts to the responding party plaintiff, 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.

[17] I am not satisfied that the fresh evidence sought to be adduced is reliable. It is only a small segment of the entire communication.

[18] I am not satisfied that the purported intention of Mr. Levant would probably change the result or probably have a direct effect on the disposition of the motion or an issue that must be decided in the main action, as argued by the moving party. The policy behind the SLAPP provision set forth at section 137.1 of the CJA has been translated into specific tests to be applied by the court to determine whether a claim and defence, on a preliminary assessment, have sufficient merit to permit the action to continue to trial.

[19] Further, I am not satisfied that the evidence sought to be adduced in the form of the extract of the recording can be clear clearly said to refer to the fundraising efforts related to the Fort McMurray fires, or to refer to Mr. Day or this specific lawsuit which claim $95,000. There was only reference to “a guy in Ottawa” who talked about “our crowdfunding” and was sued. While Mr. Saikaley submits that there is a clear reference to this lawsuit, concerning fundraising for the Fort McMurray fires and commenced in Ottawa, for $95,000, I am unable to draw that inference on the evidence before this Court.

[20] Based on the motion record, factum and case law, and the submissions of counsel, I do not find the fresh evidence to be admissible or relevant to the determination of this motion. Accordingly, I dismiss the motion to adduce fresh evidence.

Carole J. Brown, J.

Date: October 18, 2017