Court File and Parties

COURT FILE NO.: 1517/17 DATE: 20180628 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Alexander Dimitri Lascaris Plaintiff (Responding Party) – and – B’nai Brith Canada Defendant (Moving Party)

COUNSEL: Yavar Hameed, for the Plaintiff (Responding Party) David Elmaleh and Aryeh Samuel, for the Defendant (Moving Party)

HEARD: February 6, 2018 and April 20, 2018

Rady j.

Introduction

[1] The defendant seeks an order pursuant to s. 137.1(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 dismissing the plaintiff’s libel action on the basis that it is a strategic lawsuit against public participation (or SLAPP litigation as it has come to be known). The plaintiff has claimed damages of $200,000 pursuant to the Libel and Slander Act, R.S.O. 1990, c. L.12 and punitive or exemplary damages of $20,000 arising from an article and a tweet published by the defendant.

[2] SLAPP litigation has been described as “cases … brought to punish defendants for speaking out, give credibility to threats of litigation against other critics, deplete financial resources and, more broadly, silence public debate on matters of public interest”: Peter A. Downard, The Law of Libel in Canada, 4th ed., (Toronto: LexisNexis Canada Inc., 2018) at § 17.5; See also United Soils Management Ltd. v. Mohammed, 2017 ONSC 1396 at para. 3. Existing remedies for such claims, such as a dismissal for abuse of process, were considered inadequate to address what has been described as “libel chill”: The Law of Libel in Canada, supra at § 17.1– § 17.3; Bondfield Construction Co. v. The Globe and Mail, 2018 ONSC 1880 at paras. 80, 82.

[3] Anti-SLAPP legislation was enacted in 2015 with the passage of the Protection of Public Participation Act 2015, S.O. 2015, c. 23, which amended the CJA by adding s. 137.1. Relevant excerpts are reproduced below. Notwithstanding its recent enactment, there are already several decisions by the Superior Court that consider its provisions. At this time, there is no appellate authority concerning the legislation, but a group of appeals were heard together by the Court of Appeal in June 2017 and a decision is under reserve.

[4] The intent of the amendment to the CJA is to introduce a preliminary merits review that “dispenses with the need for an inquiry into the subjective intention of a plaintiff”: The Law of Libel in Canada, supra at para. 17.8. Dunphy J. described the legislation as a “fast track process for summary dismissal” in Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC 6785.

[5] The subject matter underlying this particular lawsuit, which involves the conflict in the Middle East, is a particularly sensitive one that provokes intense public debate and strong opinion often vociferously expressed, to put it mildly. The comments of Polowin J. at para. 1 of Baglow v. Smith, 2015 ONSC 1175 are apt:

Political debate in the internet blogosphere can be, and often is, rude, aggressive, sarcastic, hyperbolic, insulting, caustic and/or vulgar. It is not for the faint of heart.

[6] This case is no different. I will return to Baglow later in my reasons, because of its similarities to this lawsuit.

[7] From the content of their facta and during the course of submissions, I formed the distinct impression that each side strayed into advocacy of a particular point of view of the conflict. I made it clear that the Court’s role is to make a determination of a point of law and not to make findings of fact. And at the risk of stating the obvious, it is also not the Court’s role to weigh in on the debate.

The Legislation

[8] Section 137.1 provides in part:

(1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

(2) In this section,

“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding, and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[9] It is apparent that the analysis to be undertaken is as follows:

1. the moving party bears the initial onus to demonstrate that the proceeding arises from an expression it made relating to a matter of public interest;
2. the onus shifts to the responding party to show that there are grounds to believe that (i) the lawsuit has substantial merit, and (ii) the moving party has no valid defence, and
3. the Court must then assess whether the harm caused by the publication outweighs the public interest in protecting the expression, which the responding party also bears the onus of demonstrating.

The Parties

[10] The plaintiff is a lawyer who ran as a candidate for the Green Party of Canada in the 2015 federal election. He later served as the Justice Critic in the Green Party’s shadow cabinet. According to the material filed on the motion, the plaintiff publishes extensively on matters of public interest in social media. He advocates for Palestinian rights and has been critical of the conduct of a number of states and governments, including Israel, for alleged human rights violations.

[11] B’nai Brith describes itself on its website as “a grassroots voice of the Jewish Community” and that it “has advocated for Canadian Jewry and championed the cause of human rights since 1875.” [1] Its website also notes that “B’nai Brith is recognized as a vital voice in promoting Jewish unity and continuity, a staunch defender of the State of Israel and global Jewry, a tireless advocate on behalf of senior citizens and a leader in combating [anti-Semitism] and racism.” [2]

The Material Filed

[12] The parties filed a considerable volume of material, including:

1. The affidavit of Michael Mostyn, the Chief Executive Officer of B’nai Brith, which includes a number of exhibits in addition to the impugned publication;
2. The affidavits of Mr. Lascaris; Larry Haiven, a founding member of Independent Jewish Voices Canada; and Johnathan Kuttab, an attorney called to the bar of Israel, Palestine, and New York;
3. The transcripts of the cross-examinations of the parties; and
4. Facta and Books of Authorities.

[13] I found the affidavits of Mr. Haiven and Mr. Kuttab to be of limited assistance, because they were only marginally relevant to the issues before me. They seemed to relate primarily to the merits of the underlying debate. Moreover, Mr. Kuttab purported to offer an expert opinion, but no Form 53 Certificate was delivered and the opinion was unnecessary to the analysis, even if he were qualified to offer opinion evidence.

The Facts

[14] The action arises as a result of an article published by the defendant on August 4, 2016 and its republication in a tweet on April 3, 2017. Part of the offending publication reads: “Dimitri Lascaris, official Justice Critic of the Green Party of Canada, has used social media to advocate on behalf of terrorists who have murdered Israeli citizens, a B’nai Brith Canada investigation has revealed.” [3] It is to this passage that particular objection is made.

[15] Some elaboration of the events leading to the publication is necessary to give context to the discussion that follows.

[16] Between August 5 and 7 in 2016, the Green Party held a political convention in Ottawa. One of the proposed policy resolutions called for the party to support the use of boycott, divestment, and sanctions (BDS) against Israel and Israeli companies, institutions, and organizations.

[17] The use of BDS measures has attracted considerable public attention and debate in Canada and elsewhere. B’nai Brith is opposed to BDS and has participated in the discussion through the publication of a white paper, articles, blog posts, and press releases. Mr. Mostyn deposes that B’nai Brith believes BDS is being used to delegitimize the State of Israel. It was committed to the opposition to BDS as a formal policy of the Green Party. The impugned article appeared the day before the Green Party’s convention began.

[18] The full text of the article reads:

Dimitri Lascaris, official Justice Critic of the Green Party of Canada, has used social media to advocate on behalf of terrorists who have murdered Israeli civilians, a B’nai Brith Canada investigation has revealed.

In May of 2016, Lascaris visited Israel and met with Muhammad Alayan, father of Bahaa Alayan. On October 21, 2015, Bahaa boarded a Jerusalem bus with an accomplice and stabbed three innocent civilians to death – Richard Lakin, Alon Govberg and Haim Haviv. Bahaa Alayan was killed by Israeli security forces responding to the terrorist attack, while his accomplice, Bilal Abu Ghanem, was arrested and received three life sentences from an Israeli court. The attack was praised by the Hamas terrorist group, which produced a sickening re-enactment video to the delight of its followers.

In a public Facebook post, Lascaris claimed that Bahaa had been “killed extrajudicially by Israeli authorities”, and pledged to help his father in recovering his body.

“The suggestion that police acted ‘extrajudicially’ in defending civilians from a rampaging terrorist who had just murdered three people is ludicrous,” said Michael Mostyn, Chief Executive Officer of B’nai Brith Canada. “These sorts of terrorist acts are a rising global threat, and Lascaris’ statement is tantamount to condemning French police for killing the terrorist who massacred innocents in Nice recently. Governments have the obligation to protect their citizens from terrorists, be they in Canada, France Israel or anywhere. Someone who aspires to be the Minister of Justice should be particularly sensitive to such matters.”

There is more. In a November 2015 Twitter exchange with a Canadian reporter, Lascaris repeatedly refused to characterize Hamas as a terrorist organization, even though it is listed as such by the Government of Canada and its covenant explicitly encourages attacks against Jewish civilians. Lascaris went on to assert that “Israel’s terror far surpasses that of Hamas.”

On his publicly accessible Facebook page, Lascaris also has shared articles from Veterans Today, an American white supremacist website that accuses the Jewish people of conspiring to execute the 9/11 terrorist attacks, the assassination of former American President John F. Kennedy, and numerous other tragedies.

In light of these revelations, we are calling on Green Party Leader Elizabeth May to immediately dismiss Lascaris from her Shadow Cabinet, Mostyn added. While B’nai Brith has reached out to Ms. May directly on this issue, her spokesperson has told us that she has not yet had time to review our documentation. Now that this information is being made public, we hope that she will immediately do what’s right.

Despite May’s claim to have not yet reviewed the information on Lascaris, the Green Party Justice Critic pre-emptively took to Facebook Thursday morning, suggesting in a post that “scurrilous and false accusations from B’nai Brith Canada” could be coming. A Green Party source confessed to B’nai Brith that they had tipped off Lascaris that B’nai Brith was conducting an investigation into his actions. May had asked Mostyn last week for confidential information that B’nai Brith had gathered about Lascaris and B’nai Brith compiled. The source told B’nai Brith that May had not had time to review the information and said they regretted telling Lascaris about the investigation.

Mostyn said: “Isn’t it ironic that Lascaris is suggesting B’nai Brith would make false accusations on his Facebook page, when all we are doing is reporting his own words, that he used, on Facebook?”

Lascaris submitted the anti-Israel boycott motion that will be considered at the Green Party’s annual convention in Ottawa this weekend. He was also the party’s candidate for London West in the 2015 federal election. [4]

[19] The article was subsequently republished on April 3, 2017 in a tweet. The tweet read: “Dimitri Lascaris resorts to supporting #terrorists in his desperation to delegitimize the State of #Israel” and included a hyperlink to the 2016 article.

[20] The plaintiff alleges that the defendant’s tweet and republication were made at a time when he was no longer Justice Critic for the Green Party and after the Party had resolved the BDS debate. The plaintiff says that this publication was a retaliation for his support of pro-BDS activists at the University of British Columbia.

The Claim

[21] The plaintiff pleads the circumstances of his meeting with Muhammad Alayan. He pleads among other things:

1. Following the Plaintiff’s meeting with Muhammad, he researched the facts surrounding the demolition of Muhammad’s home and the death of his son. The Plaintiff found no evidence of an inquest, judicial investigation, or public inquiry into the circumstances giving rise to the death of Muhammad’s son.
2. On or about May 1, 2016, the Plaintiff wrote a Facebook post describing his meeting with Muhammad and explaining that the response of Israeli authorities towards Muhammad constituted collective punishment, which is prohibited by the Fourth Geneva Convention.
3. On or about May 1, 2016, the Plaintiff posted a second Facebook post regarding his meeting with Muhammad, including a photograph of himself and Muhammad.
4. At no time has the Plaintiff claimed to know whether Bahaa committed the violent acts, which he was alleged to have committed by Israeli authorities, nor has the Plaintiff received verifiable accounts regarding the allegations by Israeli authorities against Bahaa. To the Plaintiff’s knowledge, those allegations have never been the subject of a judicial or independent public inquiry. Accordingly, the Plaintiff has never taken a position regarding those allegations against Bahaa.

[22] The plaintiff alleges that the publications have damaged his reputation, because a reasonable person would draw negative conclusions about his character from the article and its claims. He alleges that the defendant acted in bad faith by deliberately and falsely characterizing him as a supporter of terrorists.

[23] The defendant denies that the article or the impugned headline were libelous, false, or defamatory. It pleads that they were true and that the words do not bear the meanings attributed to them by the plaintiff. It pleads justification and qualified privilege. It also alleges that the plaintiff failed to provide the notice required by the Libel and Slander Act. Finally, it pleads that the plaintiff has suffered no damages.

Analysis

Burden of Proof

[24] The standard of proof is not defined in the legislation. However, some of the decisions made to date on SLAPP motions have considered the burden of proof. I will make particular reference to three: Able Translations, supra, Rizvee v. Newman, 2017 ONSC 4024, and Bondfield Construction, supra.

[25] These cases demonstrate two different approaches to the applicable standard of proof. Some cases seem to have applied a burden that is less than the civil standard of proof on a balance of probabilities, but greater than the standard respecting frivolous and vexatious claims.

[26] For example, in Able Translations, supra Dunphy J. concluded at para. 45 that the standard was “reasonable grounds to believe”. He then drew on the decision of in Mugesera v. Canada (Minister of Citizenship) and Immigration, 2005 SCC 40, where the Supreme Court held that reasonable grounds to believe was a greater standard than suspicion but less than the standard of balance of probabilities.

[27] In contrast, in Rizvee, supra Fitzpatrick J. considered that the usual civil standard should apply, while acknowledging that the issue is unsettled. At para. 59, he noted, “these s. 137.1 motions are following a trajectory not significantly dissimilar to summary judgment motions … [and so] the standard civil burden of the balance of probabilities, or something approaching that standard, should apply.” However, he also noted that his conclusion was the same regardless of which standard applied.

[28] Finally, in Bondfield Construction, supra, Morgan J. agreed with Justice Fitzpatrick’s approach. He observed the following at para. 33:

Given the clear intention of the legislature to dismiss actions which impede free expression on matters of public interest, there is no obvious reason to apply a standard that is less stringent than the ordinary civil standard. It is important here that the Globe and other defendants be made to establish that the issues at stake in the series of newspaper articles are ones of public interest, and it is equally important that Bondfield be made to establish that the three-step test set out in section 137.1(4) applies. There is no reason to reduce the standard burden of proof on either side of this ledger.

[29] There is certainly an argument that a SLAPP motion is intended to be applied as a preliminary screening mechanism using a relaxed standard or merits assessment. It would not be unprecedented. For example, s. 138.8 of the Securities Act, R.S.O. 1990, c. 5 requires the court to consider whether leave should be given to commence an action under s. 138.3. It has been described as a “meaningful” and “robust deterrent” screening mechanism (see Theratechnologies Inc. v. 121851 Canada Inc., 2015 SCC 18), but certainly is not analyzed on the basis of a balance of probabilities.

[30] While recognizing that the law is unsettled, I agree with Justices Morgan and Fitzpatrick that the applicable standard is proof on a balance of probabilities. I adopt their analyses. Their approach accords with the Supreme Court of Canada’s conclusion in McDougail v. F.H., 2008 SCC 53 that there is one standard of proof in civil cases.

Section 137.1(3): Expression Relating to Matter of Public Interest

[31] As already noted, the moving party bears the initial onus to prove that the responding party’s claim arises from an expression relating to a matter of public interest.

Expression

[32] There can be no doubt that the first requirement is met. Clearly, the communications in question are an expression. I did not understand the responding party to suggest otherwise.

Matter of Public Interest

[33] The term “matter of public interest” is not defined in the legislation. However, it has been considered by the Supreme Court of Canada in Grant v. Torstar Corp., 2009 SCC 61, a substantial portion of which is quoted in the next paragraph because of its importance to this case.

[34] The Court instructed at paras. 101–106:

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. The judge’s role at this point is to determine whether the subject matter of the communication as a whole is one of public interest. If it is, and if the evidence is legally capable of supporting the defence, as I will explain below, the judge should put the case to the jury for the ultimate determination of responsibility.

How is “public interest” in the subject matter established? First, and most fundamentally, the public interest is not synonymous with what interests the public. The public’s appetite for information on a given subject – say, the private lives of well-known people – is not on its own sufficient to render an essentially private matter public for the purposes of defamation law. An individual’s reasonable expectation of privacy must be respected in this determination. Conversely, the fact that much of the public would be less than riveted by a given subject matter does not remove the subject from the public interest. It is enough that some segment of the community would have a genuine interest in receiving information on the subject.

The authorities offer no single “test” for public interest, nor a static list of topics falling within the public interest (see, e.g., Gatley on Libel and Slander (11th ed. 2008), at p. 530). Guidance, however, may be found in the cases on fair comment and s. 2(b) of the Charter.

In London Artists, Ltd. v. Littler, [1969] 2 All E.R. (C.A.), speaking of the defence of fair comment, Lord Denning, M.R., described public interest broadly in terms of matters that may legitimately concern or interest people:

There is no definition in the books as to what is the matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect [page 686] people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment. [p. 198]

To be of public interest, the subject matter “must be shown to be one 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, vol. 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 B.C.L.R. (4th) 285, at para. 63, per Koenigsberg 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.

Public interest is not confined to publications on government and political matters, as it is in Australia and New Zealand. Nor is it necessary that the plaintiff be a “public figure”, as in the American jurisprudence since Sullivan. Both qualifications cast the public interest too narrowly. The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion and morality. The democratic interest in such wide-ranging public debate must be reflected in the jurisprudence.

[35] In Baglow, supra, which was a case involving a debate online about Omar Khadr, the Court concluded at para. 223 that

The first element is easily met in this case. The impugned words concerned a matter of public interest that is, the well-known and controversial case of Omar Khadr and the extent to which legal rights should be extended to him. Canadian public opinion was generally split on this issue as evidenced by an Angus Reid Public Opinion Poll from February 2008 (Exhibit 6, Tab 19). The question posed was whether the Canadian government should actively intervene to secure Omar Khadr’s release. The results indicated that 41% agreed, 41% disagreed and 18% were not sure. Dr. Baglow himself recognized the Omar Khadr case as being one of public interest by writing extensively about it. In cross-examination, he agreed that the Omar Khadr case and the war in Afghanistan were matters of great public interest.

[36] Other examples of matters of public interest include:

1. testimony respecting the environmental impact of a proposed subdivision (17046404 Ontario Ltd. v. Pointes Protection Association et al., 2016 ONSC 2884);
2. the merits of a candidate for federal office (Able Translations, supra); and
3. the environmental implications of expanded dumping rights in the Oak Ridges Moraine (United Soils Management Ltd. v. Barclay, 2018 ONSC 1372).

[37] The plaintiff submits that the publications are not about matters of public interest, because they are, at their core, attacks on his character.

[38] I do not agree.

[39] There can be no doubt that the subject matter of the article is one that invites public attention; affects the welfare of citizens; and attracts considerable controversy, which are all outlined in the definition of public interest in Grant, supra. Canadians have a public interest in receiving information on the conflict in the Middle East and on individuals involved with government parties and their stance on the issue. The ongoing debate regarding the conflict between Israel and Palestine and Canada’s involvement attracts significant public attention and controversy. Additionally, as the evidence on the motion demonstrates and similar to the circumstances of Dr. Baglow in Baglow, supra, the plaintiff himself publishes in this particular area, which clearly shows the public interest in the subject matter.

[40] Accordingly, the moving party has met its burden of proof. The burden then shifts to the responding party to demonstrate that there are grounds to believe both that the claim has substantial merit and that there are no valid defences available. He must also demonstrate that the harm caused to him outweighs the protection otherwise afforded expressions on matters of public interest.

Section 137.1(4): Merit, Defences, and Weighing Harm and Public Interest

[41] The provisions of s. 137.1(4) are conjunctive. The responding party must satisfy all three requirements in order to successfully defeat the motion.

Substantial Merit

[42] As Grant, supra held at para. 28, a plaintiff in a defamation action must prove the following:

1. that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
2. that the words in fact referred to the plaintiff; and
3. that the words were published, or in other words, that they were communicated to at least one person other than the plaintiff.

[43] In United Soils Management v. Mohammed, 2017 ONSC 4450, the Court noted the following at para. 21:

To determine whether the words complained of are defamatory, the plaintiff must show the main thrust, or ‘defamatory sting,’ of those words. In every defamation action, the trier of fact must determine the defamatory sting from both the plain meaning of the words complained of [and] from what the ordinary, reasonable person would infer from them in the context in which those words were published.

[44] The moving party did not focus its argument on whether the impugned words were defamatory. Rather, it submits that the respondent has adduced no evidence of monetary or reputational damage and as a result, the claim is unmeritorious.

[45] The responding party submits that general damages are presumed and cites Thompson v. Cohodes, 2017 ONSC 2590 in support. In that case, the motion judge noted at para. 32:

The harm that has or is likely to be suffered as a result of the libel must be established having regard to the law of libel as it relates to the assessment of damages. General damages are presumed from the publication of the libel, and need not be established by proof of actual loss: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 164 (S.C.C.). Valid purposes of a general damages award are to compensate the plaintiff for loss of reputation and injury to the plaintiff’s feelings, and to vindicate the plaintiff, although the relevance of each of these may vary from case to case: Walker v. CFTO Ltd. (1987), 59 O.R. (2d) 104 at 111 (C.A.).

[46] This is an accurate statement of the law and consistent with the Court’s review of the law in Grant, supra. However, while general damages are presumed, it is important to bear in mind the purpose of such an award. General damages are designed to compensate for “loss of reputation” or “injured feelings” and for “vindication”. In this case, there is no evidence of any loss of reputation whatsoever. The plaintiff’s allegation that a reasonable person might draw negative conclusions about him is insufficient to establish a reputational damage. However, that is not determinative because compensation may still be available for other impacts identified above. Consequently, I am prepared to assume that the claim has merit.

No Valid Defence

[47] As already noted, the moving party has delivered a Statement of Defence. It advances the defences of justification and qualified privilege. It argued that fair comment is also available on these facts. It pleads that the requisite notice was not given under the Libel and Slander Act.

[48] The issue on this motion is whether the responding party can demonstrate that none of these defences can possibly succeed. The following comment from Bondfield, supra assists in the approach to be taken to this part of the analysis. The motion judge noted at para. 46:

While the weight of the onus under this section has never been precisely defined, it exists somewhere “on the continuum between ‘frivolous’ and ‘proven on the balance of probabilities’”: Platnick v. Bent, 2016 ONSC 7340, at para. 99. What is clear is that there cannot be an arguable point on the defense side. That is, a defense that could go either way – i.e. one that could potentially apply but it is not clear at this stage whether or not it will actually succeed – does not meet the statutory criterion of “no valid defense to the proceeding”: see Rizvee, supra, at para. 96. In order to meet the s. 137.1(4)(b)(ii) criterion, Bondfield must establish that the Globe has no valid defense whatsoever.

[49] It is helpful to review the defences here and their constituent elements.

Justification

[50] It is a complete defence to a libel action if the defamatory imputation is true or substantially true: Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 10th ed., (Toronto: LexisNexis, 2015) at §19.67. In Ontario, the defence of justification will not fail “by reason only that the truth of every allegation of fact is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges”: Libel and Slander Act, s. 22.

Qualified Privilege

[51] Some communications are protected by qualified privilege, which is defined as “an occasion where the person who makes a communication has an interest or duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it …”: Janet M. Ames, “Defamation” in Linda D. Rainaldi, Kim Kreuzer Work, and Leanne Berry, eds., Remedies in Tort, (Toronto: Carswell, 2017) at §106 citing Adam v. Ward, [1917] A.C. 309 c. 334 (H.L.) quoted with approval in McLoughlin v. Kutasy, [1979] 2 S.C.R. 311 at 321.

Fair Comment

[52] The defence of fair comment will succeed at trial when a defendant proves that:

(1) the comment is on a matter of public interest;

(2) the comment is based on fact;

(3) the comment, though it can include inferences of fact, is recognizable as comment; and

(4) any person could honestly express that opinion on the proved facts: see WIC Radio Ltd. v. Simpson, 2008 SCC 40 at para. 28.

[53] Section 23 of the Libel and Slander Act provides:

In an action for libel or slander for words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.

[54] The defence of fair comment will be unsuccessful if the plaintiff proves that the defendant was motivated by malice, which is to be assessed objectively: see Grant, supra.

Analysis of Defences

[55] I have concluded that the plaintiff faces an insurmountable hurdle with respect to the defence of fair comment. He is unable to demonstrate that the defence cannot succeed and his claim must be dismissed. Consequently, it is unnecessary to deal with either justification, qualified privilege, or notice.

[56] In this case, the comment is on a matter of public interest, as I have already found.

[57] The comment is based on fact in the sense that the underlying events such as the plaintiff’s meeting with Mr. Muhammad Alayan; Mr. Bahaa Alayan’s death; the call for the return of the deceased’s body; the refusal to accede to the request; the BDS motion to be deliberated at the Green Party’s convention; and Mr. Lascaris’ candidacy for a seat in the federal election, are all grounded in fact.

[58] The comment is also arguably recognizable as opinion. The following quotation is of assistance on this issue:

Words that appear to be statements of fact may, in pith and substance, be properly construed as comment, particularly in an editorial context where loose, figurative, or hyperbolic language is used in the context of political debate, commentary, media campaigns and public discourse: “Defamation” in Remedies in Tort, supra at § 170.1 citing WIC Radio, supra and Baglow, supra.

[59] The opinion’s reasonableness is not the issue. To that extent, the word “fair” is somewhat misleading. Indeed in Baglow, supra the trial judge observed at para. 239:

While it may not be reasonable to assert that because someone believes that Omar Khadr is entitled to Charter or International Law protections that person supports the Taliban, the test is not whether the opinion is reasonable. In my view the test that is, whether anyone could honestly have held the view that support for Omar Khadr could be seen as support for the Taliban, has been met.

[60] As the author of “Defamation” in Remedies in Tort, supra observes, “fair-mindedness is not an element of the test”: § 176. Applying this reasoning to the present case, it may not be reasonable to assert that because the plaintiff met with Mr. Muhammad Alayan and supported the call for the return of the deceased’s body, he is advocating for terrorists. However, the test is whether a person could honestly believe that support for the Alayan family constitutes support for terrorists. The answer is yes. A person who knows that Bahaa Alayan was allegedly involved in a terrorist attack could believe that Mr. Lascaris supported terrorists as a result of his meeting with Mr. Muhammad Alayan and his posts online about the Alayan family. It may not be a reasonable belief, but it is possible for someone to honestly hold this belief.

[61] The defence of fair comment can be overcome if the plaintiff proves that the defendant was subjectively motivated by malice: “Defamation” in Remedies in Tort, supra at § 181 citing WIC Radio, supra. Malice must also be the dominant motive: Grant, supra.

[62] It must be kept in mind that the purpose of the fair comment defence is the protection of freedom of expression in order to influence public opinion on genuine public issues. If the defendant’s motive is to do so, there is no malice: see “Defamation” in Remedies in Tort, supra citing Creative Salmon Co. v. Stanford, 2009 BCCA 61 leave to appeal refused 2009 CarswellBC 1700 (S.C.C.).

[63] Mr. Mostyn has deposed (and I paraphrase) that the defendant was genuinely attempting to influence public opinion against the use of BDS sanctions.

[64] Whatever Mr. Mostyn’s personal views about the plaintiff, there is no evidence that the defendant was acting other than in the pursuit of its genuinely held beliefs. There is no evidence that Mr. Mostyn or the defendant was acting with malice.

[65] Because it is arguable that a person could honestly believe that support for the Alayan family constitutes support for terrorists, a valid defence is available to the defendant. The plaintiff has, therefore, not met his burden of demonstrating that no valid defence exists.

[66] In light of the foregoing, it follows that the plaintiff’s claim must be dismissed.

Conclusion

[67] The defendant’s motion to dismiss the plaintiff’s libel action under the anti-SLAPP provision in s. 137.1 of the CJA is granted. The plaintiff’s action must be dismissed, because he is unable to show that the defendant has no valid defence against his claim, as required by s. 137.1(4). As a reminder to the parties who often veered into advocacy related to the merits of the debate, the Court makes no comment on the underlying dispute or on the merits of their respective points of view.

[68] I will receive brief written submissions on costs not exceeding five pages, excluding Bills of Costs, first from the defendant by July 20, 2018 and then from the plaintiff by August 10, 2018.

“Justice H. A. Rady”

Justice H. A. Rady

Released: June 28, 2018

COURT FILE NO.: 1517/17 DATE: 20180628 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Alexander Dimitri Lascaris Plaintiff (Responding Party) – and – B’nai Brith Canada Defendant (Moving Party) REASONS FOR Decision Rady J.

Released: June 28, 2018

[1] See B’nai Brith Canada, “B’nai Brith Canada” online: https://www.bnaibrith.ca/b_nai_brith_canada.

[2] Ibid.

[3] B’nai Brith Canada, “Green Party Justice Critic Advocates on Behalf of Terrorists” (4 August 2016), online: https://www.bnaibrith.ca/green_party_justice_critic_advocates_on_behalf_of_terrorists.

[4] Ibid.