Court File and Parties

COURT FILE NO.: CV-15-526680 DATE: 20190425 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Canadian Standards Association, Plaintiff/Responding Party - and - P.S. Knight Co. Ltd. and Gordon Knight, Defendants/Moving Parties

BEFORE: C. J. Brown, J.

COUNSEL: Wendy J. Wagner and Anastasia Semenova, for the Plaintiff/Responding Party Charles Haworth, for the Defendants/Moving Parties

HEARD: March 26, April 19, and December 13, 2018 and April 1, 2019

Endorsement

Introduction

[1] The moving party defendants, P.S. Knight Co. Ltd. (“Knight”) and Gordon Knight, seek an order dismissing these proceedings pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990 c. C.43 (the “CJA” or 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.

[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 s. 137.1 of the CJA, the defendant must establish that the impugned expression is on a matter of public interest. If this is done, the plaintiff then bears the onus of showing, on a balance of probabilities, 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 in the proceeding, which has been defined and clarified by the Court of Appeal for Ontario, as set forth below; 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 purposes of ss. 137.1 - 137.5 of the CJA 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: 1704604 Ontario Ltd. v. Pointes Protection Association, 2016 ONSC 2884, 84 C.P.C. (7th) 298, at para. 24; 2018 ONCA 685, 142 O.R. (3d) 161, at paras. 37, 45 (“Pointes (Ont. C.A.)”).

Background

[4] The s. 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.

[5] A copyright action was commenced in the Federal Court of Canada by the Canadian Standards Association (“CSA Group”), the responding plaintiffs in this action, against the defendants on June 19, 2012, alleging that the defendants’ publication, the Electrical Code Simplified Book 2, infringed the CSA Group’s copyright in the Canadian Electrical Code. Those proceedings are ongoing.

[6] Following commencement of the Federal Court action, the defendant, Gordon Knight, commenced a website under the name “RestoreCSA” in May 2013, which published articles discussing the Federal Court action, as well as CSA Group. These articles and others involving the same subject matter were also disseminated on Twitter and other social media. The plaintiffs allege that communications in the publications from RestoreCSA were false and defamatory. As a result, CSA Group commenced a defamation action in the Ontario Superior Court of Justice on April 23, 2015.

[7] Following commencement of the defamation action, the defendants brought a motion to dismiss or stay the defamation action on the basis that it was duplicative of the Federal Court proceedings and other complaints by CSA Group regarding disparaging use of its trademarks. This Court dismissed the defendant’s motion with costs on December 22, 2015, with the Court holding that “the defamation action has different substantive elements and different remedies available to CSA assuming it were successful”, and “CSA makes substantive claims in the Ontario action that are different and that have different remedial resources than what is available in the Federal Court”. It further held that “it was reasonable and sensible to augment the claims within the existing Federal Court action and to give Mr. Knight and his corporation notice that CSA might bring a defamation claim if Mr. Knight and his corporation did not cease and desist”: Canadian Standards Association v. P.S. Knight Co. Ltd., 2015 ONSC 7980, 139 C.P.R. (4th) 329.

[8] The defendants, thereafter, commenced this motion under s. 137.1, the “anti-SLAPP” provisions of the CJA.

[9] This matter was originally heard in the spring of 2018. It was to be continued and completed in June 2018. However, prior to the June hearing, the parties sought an adjournment in order to provide supplementary submissions regarding a number of decisions to be released by the Court of Appeal regarding clarification of s. 137.1 and the tests to be met. Following provision of and arguments on the supplementary submissions in December 2018, the parties wrote again in early March 2019, requesting that I not release my decision until after they made further submissions as regards four additional decisions released by the Court of Appeal in 2019. I accepted to receive the second supplementary submissions in writing, which were provided in April 2019.

The Facts

[10] CSA Group is accredited in Canada by the Standards Council of Canada as one of nine standards development organizations. It is an organization that develops standards through a consensus process. CSA Group has nearly 100 years of experience in standards development and develops and maintains approximately 3000 codes and standards.

[11] As part of its standards development mandate, CSA Group produces voluntary standards, which it has no power to enforce. It has no authority to draft legislation or to control whether the codes that it produces become laws and/or regulations. It produces, inter alia, the Canadian Electrical Code, which is the subject of these proceedings.

[12] The defendant, P.S. Knight Co. Ltd., is an Alberta Corporation of which the defendant, Gordon Knight, is the owner, C.E.O., President, Director and sole shareholder. Its sole purpose is to publish the Canadian Electrical Code Simplified Book 1 (a guidebook for residential wiring) and Book 2 (the Commercial and Residential book) which, in some cases, contains extracts from the Canadian Electrical Code and, in other cases, copies the Canadian Electrical Code with annotations.

[13] The allegations disseminated widely in the RestoreCSA website, in articles and in blogs, authored and disseminated by Gordon Knight and his followers, on Twitter and other social media, include the following: that CSA Group engaged in illegal conduct involving sale of influence; committed criminal offences, including treason; is corrupt; and has participated in an “in and out scandal” with the Canadian Nuclear Safety Commission (the “CNSC”).

[14] Among the articles, blogs and Twitter disseminations published by Gordon Knight and P.S. Knight, the defendants have made the following allegations which are the subject of the defamation action and this motion:

1. The CSA Group acts illegally by selling influence and control over the drafting of Canadian law;
2. The CSA Group committed an offence by violating s. 46 of the Criminal Code, R.S.C. 1985, c. C-46; namely, by providing direct and material influence over the drafting of Canadian law to a variety of foreign governments, foreign-owned companies and to the citizens of foreign countries, which it characterizes as “treasonous”;
3. The CSA Group deleted evidence of wrongdoing from its website;
4. The CSA Group sells whole standards to members for payment of money to the CSA;
5. The CSA Group has targeted small companies that refused to pay protection money; Industry Canada and the RCMP cannot investigate;
6. The CSA Group is corrupt and has a cozy financial relationship with certain manufacturers;
7. The CSA Group did their usual “shakedown”, promising to harm an individual if he did not make a payment demanded by the CSA Group;
8. The CSA Group stole trade secrets and confidential business information belonging to another company;
9. The CSA Group fabricated a false set of electrical laws and provided them to the defendants;
10. The CNSC washes/launders nuclear regulations through the CSA Group for liability protection;
11. The CSA Group violated the law by not subjecting legislative amendments to the electrical law to public view; and
12. The CSA Group uses taxpayer dollars for private interests in the opening of foreign offices and facilities.

The Issues

[15] The issues to be determined by this Court are as follows:

1. Are the defendants’ expressions, disseminated on its blog site and republished on Twitter and other social media, made in respect of a “matter of public interest”?
2. Has the CSA Group shown grounds to believe that the proceeding has substantial merit?
3. Has the CSA Group shown grounds to believe that the defendants do not have valid defences in the proceeding, as defined in the Pointes (Ont. C.A.) decision rendered by the Ontario Court of Appeal?
4. Has the CSA Group shown that the harm it suffered or is likely to suffer sufficiently serious that the public interest in allowing the proceeding to continue outweighs the public interest in protecting the defendant’s expression?

Positions of the Parties

Position of the Moving Party Defendants

[16] It is the position of the defendants that the RestoreCSA articles, blogs and publications are on a matter of public interest, as defined in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640. The defendants maintain that the subject matter of the blogs invites public attention and concerns the welfare of citizens of the country. It states that the CSA Group is involved in the development of standards and model codes in at least 50 different sectors and has facilitated the development of over 3,000 codes and standards, 40% of which have ultimately become legislation or regulations. It maintains that the codes and other standards are law which people have no option but to comply with.

[17] It is the position of the defendants that the defamation proceedings have no substantial merit and, in any event, it has valid defences, including truth and fair comment. Further, the CSA Group has not met its onus in establishing serious harm.

[18] The defendants allege that the plaintiffs have commenced the defamation action to limit the defendants’ freedom of expression on matters of public interest. The defendants allege that the defamation action contains the hallmarks of a strategic SLAPP lawsuit, namely (i) that the CSA Group’s financial resources are significant in comparison to those of the defendants; (ii) that the CSA Group has no evidence of actual damages; and (iii) that this is part of a “suite of lawsuits federally, provincially and internationally intended to remove the defendants as competitors and to destroy them”.

[19] It is the position of the defendants that it has published the Canadian Electrical Code Simplified Book 1 since 1967, which is its sole source of income. At that time and numerous times thereafter, the CSA Group wrote to the defendants to assert its copyright in the title of the book and to request copy of same to permit it to compare the content.

[20] The defendants allege that the CSA Group is a standards development organization, accredited by the Standards Council of Canada, that it is a Crown corporation that reports through Industry Canada and that it is a global not-for-profit corporation.

[21] The defendants maintain that their publications, considering their subject matter as a whole, are in the public interest.

Position of the Responding Party Plaintiff

[22] It is the position of the responding party plaintiff that the allegations in issue do not relate to a matter of public interest, but rather constitute a personal vendetta against the CSA Group. The responding party plaintiff submits that this personal vendetta arises from the copyright action brought by it against the defendants, and that the defendants admitted that the copyright action was the proximate cause of the creation of the website.

[23] It is the position of the plaintiff that its defamation action has substantial merit. It emphasizes that it does not seek to prevent the defendants from commenting on the copyright lawsuit nor from expressing their views about standards development in Canada. It points out that the only standards development organization targeted by the defendants is the CSA Group, although there are eight other accredited standards development organizations in Canada. The CSA Group has not made allegations regarding the defendants’ website in whole, but with respect to the clearly defamatory, untrue and serious statements concerning the CSA Group in the blogs.

[24] It is the position of the plaintiff that the defendants have no valid defence. The statements in issue are not true and therefore truth cannot be a defence. The statements at issue are not fair comment as they are not “comment” and not based on proven fact. Qualified privilege does not apply because the statements were published to the world at large. The defence of public interest responsible communication is not applicable as the defendants did not verify their allegations, had no reliable sources and were biased in their tone and approach.

[25] The responding party plaintiff further maintains that qualified privilege and public interest responsible communication also do not apply as the defendants’ conduct exhibits actual malice, which defeats these defences. The plaintiff maintains that the defendants continued to repeat and republish the same unsubstantiated allegations and also made those allegations to the RCMP, to which it complained, although the RCMP did not proceed with its investigation. They attempted to initiate a private prosecution against the CSA Group’s officers and directors relating to the same allegations which were rejected by a lower court and the appellate court. The plaintiff points out that Nordheimer J., as he then was, in dismissing the private prosecution, stated that the defendant Knight “fails to understand the difference between information and evidence”.

[26] Finally, it is the position of the responding party plaintiff that the harm it suffered or is likely to suffer is sufficiently serious that the public interest in allowing the action to proceed outweighs the public interest in protecting the defendants’ expression.

[27] It is the position of the plaintiff that the defendants are attempting to blend statements that purportedly relate to the public interest with the impugned expressions which do not in any way relate to the public interest. The defendants in the instant case have attempted to create a “new narrative” about the CSA Group by interspersing general comments that reference subjects that may be of public interest with the specific falsehoods about the CSA Group. The question to be determined is, what are the impugned expressions that give rise to the lawsuit about? The answer, in this case, is the CSA Group, and more specifically, the defendants’ serious and unfounded allegations of influence peddling, criminal conduct, corruption and scandal.

[28] It is the position of the plaintiff that the defendants’ characterization of the alleged public interest in the expression as relating to standards development and certification in Canada generally and ownership of copyright in codes and standards is belied by the fact that the defendants have targeted the CSA Group only, admittedly due to the lawsuit that the CSA Group brought against the defendants. Regardless of what narrative the defendants attempt to create, the allegations always involve the CSA Group and relate to that private vendetta and as such, the defendants cannot pass the threshold requirement of s. 137.1.

The Law

[29] Pursuant to s. 137.1 of the CJA, the defendants must first establish that their expression relates to a matter of public interest. If they are able to establish this, the onus shifts to the CSA Group, which must establish that: (i) there are grounds to believe that its claim has substantial merit; (ii) there are grounds to believe that the defendants have no valid defence as now defined by the Court of Appeal in recent decisions; and (iii) the harm likely to be or that has been suffered by it is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the defendants’ expression.

[30] Over the past year, the Court of Appeal for Ontario has released numerous decisions which have clarified and refined the tests to be met for s. 137.1 of the CJA.

Does the Impugned Expression Relate to a Matter of Public Interest?

[31] The words “public interest” are not defined in the legislation. The phrase “public interest” in s. 137.1(3) is not qualified in any way. It does not require that the expression actually further the public interest. A qualitative assessment of the expression’s impact on the issue to which it is directed is not part of the s. 137.1(3) inquiry. Nothing in the section justifies any distinction among expressions based on the quality, merits, or manner of the expression. An expression that relates to a matter of public interest remains so if the language used is intemperate or even harmful to the public interest. The “public interest” as referred to in s. 137.1(3) is determined by asking – what is the expression about, or what does it pertain to? See Pointes (Ont. C.A.), supra, at paras. 54, 55. The expressions that are the subject matter of the lawsuit as a whole and the context in which they are made must be considered in determining whether the expression is related to a matter of public interest: Veneruzzo v. Storey, 2018 ONCA 688, 23 C.P.C. (8th) 352, at paras. 17-19.

[32] In interpreting the phrase “public interest” in the context of s. 137.1, the courts have looked to the definition of “matters of public interest” set forth in the Supreme Court of Canada decision of Grant v. Torstar Corp., supra, at para.105:

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.

[33] Pursuant to the recent Court of Appeal decisions released over the last year, it is clear that s. 137.1 does not alter the substantive law as it relates to claims based on expressions of public interest. The court has confirmed that “there are no new defences created for those who speak out on matters of public interest”. The law of defamation remains substantially unchanged: Pointes (Ont. C.A.), supra, at para. 46.

[34] In the recently released Levant v. Day, 2019 ONCA 244, at para. 10, (“Levant v. Day (Ont. C.A.)”), the Court of Appeal, citing Points (Ont. C.A.), at para. 65, summarized “public interest” as follows:

In summary, the concept of ‘public interest’ as it is used in s. 137.1(3) is a broad one that does not take into account the merits or manner of the expression, nor the motive of the author. The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication. An expression may relate to more than one matter. If one of those matters is a ‘matter of public interest’, the defendant will have met its onus under 137.1(3).

[35] Considering the subject matter of the defendants’ publications and re-publications as a whole, it would appear on its face and for the purposes of this motion that the allegations relate to a matter of “public interest” as they deal with standards development in Canada. As stated in Levant v. Day (Ont. C.A.) and Pointes (Ont. C.A.), supra, the concept of “public interest” as used in s. 137.1(3) does not take into account the merits or manner of the expression, nor the motive of the author.

[36] Based on the most recent jurisprudence from the Court of Appeal, I find that the defendants have established that their blog posts are, for the purposes of this motion, in relation to matters of public interest. They contain expressions relating to more than one matter. One of those is a matter of public interest, namely standards development by the CSA Group in Canada. I find that the defendants have established the impugned expressions to be on a matter of public interest.

[37] Having found the impugned expression to be on matters of public interest, as defined above, the plaintiff must then establish on a balance of probabilities that there are grounds to believe that the claim has substantial merit; that there are grounds to believe that the defendants have no valid defence; and that 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 the expression.

Are There Grounds to Believe that the Proceeding Has Substantial Merit?

[38] The threshold for the responding party to meet the test in ss. 137.1(4)(a)(i) and (ii) of the CJA is a low one, given the significant remedies in s. 137.1 and the protection for litigants to bring legitimate claims before the court: Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60, leave to appeal to SCC submitted 4 March 2019, at paras. 68-70; and Pointes (Ont. C.A.), supra.

[39] The Court of Appeal has clarified that the issue to be determined on a s. 137.1 motion is not “the ultimate strength of the claim or the believability of the plaintiff, but only whether the record provides a reasonable basis for believing the claim has substantial merit and that there is no valid defence”: Platnick v. Bent, supra, at para. 49. Therefore, the test is as follows: could a reasonable trier conclude that the CSA Group has a real chance of establishing that the defendants defamed them and could a reasonable trier conclude that the defendants had no valid defence to the allegations?: Platnick v. Bent, supra, at paras. 44, 49; and Pointes (Ont. C.A.), supra.

[40] Thus, the CSA Group must establish that there is a reasonable basis both for believing that the claim has substantial merit and that there are no valid defences. In other words, the CSA Group must establish that it has a real chance of establishing that the defendants defamed it and therefore that its action has substantial merit. I will address the issue of the defences below.

[41] 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.

[42] 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, at para. 14 (“Thompson”). And see: United Soils Management Ltd. v. Mohammed, 2017 ONSC 4450, 7 C.P.C. (8th) 58, aff’d 2019 ONCA 128, at para. 20; Platnick v. Bent, supra, at para. 92; Pointes (Ont. C.A.), supra, at para. 47; Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC 6785, 410 D.L.R. (4th) 380, aff’d 2018 ONCA 690, 428 D.L.R. (4th) 568, at paras. 49 and 51; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 164 (“Hill v. Church of Scientology”).

[43] I do not accept the arguments of the defendants, that the CSA Group’s claims have no merit and that the RestoreCSA articles do not refer to the CSA Group, but rather refer to the CNSC.

[44] The statements in issue refer to the CSA Group. The evidence, including the transcript of the defendant Knight, indicates that the defendants provided the non-website publication to the National Post, other news media and members of government. The website publication has been published via the Internet to members of government (both federal and Ontario) and to members of the public in Ontario, across Canada and internationally. The allegations against the CSA Group are serious; alleging unlawful conduct, including illegal sale of influence over Canadian law, criminal conduct involving breach of the Criminal Code, the making of legal demands for protection money, the intentional sabotaging of business and corruption. These allegations are very serious and are potentially damaging to anyone’s reputation.

[45] For the purposes of this motion and based on all of the evidence before this Court, I am satisfied that there are grounds to believe that the claim has substantial merit.

Are There Valid Defences?

[46] The defendant advances the defences of truth, fair comment, qualified privilege and responsible communication on matters of public interest.

[47] As regards the defences advanced, the Court of Appeal clarified the test to be applied. As Doherty J.A. stated in Pointes (Ont. C.A.), supra, at para. 84:

The onus rests on the plaintiff to convince the motion judge that, looking at the motion record through the reasonableness lens, a trier could conclude that none of the defences advanced would succeed. If that assessment is among those reasonably available on the record, the plaintiff has met its onus.

In other words, is the conclusion that the plaintiff has no defence to the action among the range of conclusions that may be reached by a trier: Levant v. Day (Ont. C.A.), supra, at para. 14. And see: Bondfield Construction Co. v. Globe and Mail Inc., 2019 ONCA 166, 144 O.R. (3d) 291, at paras.10-17 (“Bondfield”).

(i) Fair Comment

[48] 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 (“WIC Radio Ltd.”); Thompson, supra.

[49] As stated in the recent Court of Appeal decision of Lascaris v. B’Nai Brith Canada, 2019 ONCA 163, 144 O.R. (3d) 211, at para. 24:

Regarding the issue of fair comment, the motion judge set out the constituent elements of the defence of fair comment, as articulated in WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 28:

(a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognizable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was subjectively actuated by express malice.

[50] Statements of comment are statements of opinion, or inherently subjective and debatable inferences from facts as indicated in WIC Radio Ltd., 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, supra.

[51] An assertion of fact can never be defended as fair comment. The expression must be recognizable as a comment based on true facts and not as a bare statement of fact. If the words are presented in a manner which does not indicate with reasonable clarity that they are comment and not statements of fact, the words may be found to be a statement of fact. Where the statement is recognizable as comment, it must be based on true facts. Those true facts must be stated within the publication so that the reader is in a position to arrive at their own conclusion as to whether the defamatory expression is founded or unfounded: Manitoba Free Press Company v. Martin (1982), 21 S.C.R. 518, at p. 528; Ross v. Beutel 2001 NBCA 62, 238 N.B.R. (2d) 112, at paras. 62, 63; Leenen v. Canadian Broadcasting Corporation (2000), 48 O.R. (3d) 656, at paras. 123, 124, aff’d (2001) 54 O.R. (3d) 612 (C.A.), leave to appeal to SCC denied [2001] S.C.C.A. No. 432; Thompson, supra, at para. 26; and Levant v. Day, 2017 ONSC 5956, 17 C.P.C. (8th) 183, aff’d 2019 ONCA 244, at paras. 40, 42.

[52] For the purposes of this motion, I am of the view that the impugned “comments”, all listed and analyzed below under “The Allegations”, were stated as fact.

[53] The statements made in the blog posts and communicated to media, government officials and others, are stated as fact, rather than comment. They are not recognizable as comment based on true fact and do not indicate with reasonable clarity that they are comment and not statements of fact. These statements of “fact” made by the defendants have not been proven to be true. Indeed, as regards many of the allegations, the evidence proffered in support of the truth of these statements is indeed the defendant, Knight’s, own blog posts and articles published on the RestoreCSA blog and republished on Twitter. Again, as noted above, the defendant’s own articles alleging these allegations, and stated as fact therein, are not evidence of the truth of these allegations. There has been no independent evidence to establish the truth of these allegations. As Nordheimer J., as he then was, stated in dismissing the defendant’s private prosecution against the CSA Group, the defendant confused information (in most cases his own authored articles) with evidence. Thus, while the defendants maintain that they are comment or opinion, based on proven fact, they are not comment and not based on proven fact, as analyzed further below at paras. 65-102.

[54] In my view, a reasonable trier could conclude that the defence of fair comment would not succeed. It would be open to a trier to conclude that the statements made about the CSA Group were uttered as statements of fact, not as statements of opinion or “comment”. Further, even if the statements are viewed as opinion, a trier could also conclude that a person could not honestly express that opinion based on the available or proven facts. I note that there were no proven facts to support the allegations made by the defendants.

[55] For the purposes of this motion, there are reasonable grounds to believe that the blog posts and publications of the defendants were not comments based on fact. They were not recognizable as comment, but were statements of what purported to be actual fact, which the defendants continued to repeat, even after they knew a number of the statements were not true.

[56] The defence of fair comment is only available for comment based on facts proven to have been true: WIC Radio Ltd., supra. The allegations made by the defendant, Knight, are not stated as comment. Rather, they are stated as fact and have not been established. Accordingly, I find that a reasonable trier could conclude that the defence of fair comment is not available.

(ii) Qualified Privilege

[57] Qualified privilege is applicable where a respondent has “an interest or a duty, legal, social, or moral, to make the impugned statements to the person to whom those statements are made and the person to whom it is made has a corresponding interest or duty to receive it. Reciprocity is essential. A general sense of duty toward the public to make information available does suffice to make publication “to the world at large” a privileged occasion. The state of mind of the person communicating the information is irrelevant: Hill v. Church of Scientology, supra, at para. 143; Raymond E. Brown, Brown on Defamation, Vol. 4 (Toronto: Carswell, 1994), at pp. 13-68, and pp. 13-819 – 13-820 citing Buck v. Morris, 2015 ONSC 5632, at para. 144; Grant v. Torstar Corp., supra, at paras. 34-37; Merit Consultants International Ltd. v. Chandler, 2014 BCCA 121, 60 B.C.L.R. (5th) 214, at para. 29; and Whitfield v. Whitfield, 2016 ONCA 581, 401 D.L.R. (4th) 128, at para. 65.

[58] The privilege will be defeated if the information is communicated to an inappropriate or excessive number of peoples or if the information that is communicated was not reasonably appropriate to the legitimate purposes of the occasion (i.e., excessive distribution or inappropriate content). Publication by Internet rarely is treated as necessary or reasonable. In addition, the privilege does not extend to reporting uncorroborated allegations of criminal wrongdoing to the general public as opposed to law enforcement or investigative authorities.

[59] The defendant has pled qualified privilege only in relation to the non-website publication, the Issues Summary. The defence does not apply to this publication, as the defendant, Knight, admitted that he provided the Issues Summary to the National Post and other media, as well as to multiple government departments and officials. There has been no duty or interest established by the defendants supporting the wide publication of the Issues Summary, in particular given the uncorroborated allegations of criminal misconduct contained therein: See analysis of the Allegations in the Issues Statements, below. I am not satisfied that there was any actual duty to publish the uncorroborated allegations of criminal conduct. I am satisfied that the publications were made to a large number of people, without an established “duty” to do so, and that such publications were not necessary or reasonable.

[60] Given the foregoing, including that the statements were made and published to “the world at large”, as they were on the RestoreCSA website, and republished in blogs and Twitter feeds, I find that a reasonable trier could conclude that the defence of qualified privilege is not available.

(iii) Public Interest Responsible Communication

[61] Public Interest Responsible Communication (“PIRC”) is available as a defence where the publication relates to a matter of public interest and the publisher was diligent in trying to verify the allegations. In determining whether this defence is applicable, the court must consider the seriousness of the allegations, the public importance of the matter, the urgency, the status and reliability of the sources, whether the plaintiff’s side of the story was sought and accurately reported, whether inclusion of the defamatory statement was justifiable, the public interest of the defamatory statement and any other relevant circumstance. Publications that are motivated by malice necessarily fail the defence of PIRC: see Grant v. Torstar Corp., supra, at paras. 110-126.

[62] Based on the evidence before this Court, the defendant, Knight, did not attempt to verify the truth of the allegations, but simply accepted everything his “confidential sources” stated at face value and took no steps to corroborate their supposed allegations. The defendants corresponded with a variety of companies, not seeking to verify the defendant’s allegations which he intended to publish, but rather he asked, in his correspondence, that they cooperate with him to bring down the CSA Group. It would appear that some of the defendants’ confidential sources had their own motivations and their own “axes to grind” vis-à-vis the CSA Group. The tone of the defendants’ publications was not neutral, but rather accusatory.

[63] The plaintiff’s side of the story was not sought, nor accurately reported. The defendants did not attempt to verify the impugned statements, as analyzed below, and in some instances, continued to repeat and republish statements which they knew to be false.

[64] In such circumstances, I find that a reasonable trier could conclude that PIRC would not be available as a defence. In coming to this conclusion, I have taken into account the analyses, below, as regards the impugned allegations.

The Allegations

[65] I will review below the impugned allegations of the defendants, contained in their Issues Summary, and the evidence applicable thereto, as regards whether the defendants have any valid defences under PIRC.

Allegation 1: The CSA Group Acts Illegally by Selling Influence and Control over the Drafting of Canadian Law

[66] The pleaded allegations of the defendants state that the CSA Group acted illegally, unethically and corruptly by selling weighted votes on legislative committees that draft Canadian law. The allegations state that “the CSA Group has been selling influence and control over Canadian law through sales of weighted votes at legislative committee”… “Selling influence over safety law in exchange for money is very very illegal”.

[67] The defendants rely on Exhibit “S” to this motion, a page from the CSA Group’s website, which they maintain establishes that committee positions were sold at tiered levels of $2,000, $4,000 and $6,000. The defendants maintained that “the more money paid to CSA, the more votes the member will receive”. In fact, the evidence of the CSA Group, as seen at Exhibit “S”, is that the fees paid refer to levels for voting on the Association level “i.e., voting on the composition of the Board of Directors and other Association governance issues”. The tiered levels have nothing to do with working committees that develop standards.

[68] The defendants did not ascertain the meaning of “votes on the Association level”. After the defendants made a complaint to the RCMP, which induced it to conduct an investigation, even the RCMP concluded that the fees referred to did not relate to votes on committees. The RCMP concluded that “… It appears that the membership fees are for tiered levels of customer service. For example, Tier 1 provided a 10% discount on CSA’s technical information service, where Tier 2 provided a 15% discount and Tier 3 was 20%. Other differences were ability to get CSA publications (Tier 3), registration for seminars, and free committee information subscriptions. Tier 1 cost $2000/year, Tier 2 was $4000/year and Tier 3 was $6000/year”.

[69] The defendants’ allegations regarding fees to serve on committees were not verified. Indeed, the defendants admitted that one document relied on in support of the “tiered voting” allegation did not refer to fees at all; another document referred to “in-kind” contributions made by committee members, which the defendants conceded could refer to non-monetary contributions, such as the donation of time. There was no documentary evidence supporting the allegation that fees were paid to serve on committees. However, the defendant Knight considered his blog posts and his own articles to be “evidence” of these allegations. They are, of course, not evidence. As Nordheimer J., as he then was, stated in dismissing the defendants’ private prosecution against the CSA Group, the defendant mistakes “information for evidence”. The defendants appear once again to have done that throughout these proceedings.

[70] The defendants further purported to support their influence peddling allegation by alleging the Electrical Code Committee included four individuals employed with Schneider Electronic Canada. The defendants had no proof that Schneider paid a fee to have representatives serve on the committee and apparently had no knowledge as to which members on the committee were voting members. The defendants further allege that according to a “confidential source”, Schneider Electric gave $10,000 to the CSA Group to influence the committee, but admitted that they had no evidence of this and did not take any steps to verify the allegation.

[71] The defendant then further alleged that an offer was purportedly made by the CSA Group to the defendant or his father to serve on a committee in exchange for a fee, but admitted that the CSA Group never made an offer to the defendant, Knight, or his father to pay money in exchange for being a representative on the Electrical Code Committee. Again, they have proffered no evidence whatsoever in this regard.

[72] This allegation appears, for the purposes of this motion and based on the evidence, to be unfounded and without substance.

Allegation 2: The CSA Group Committed an Offence by Violating Section 46 of the Criminal Code

[73] The pleaded allegations state as a fact that the CSA Group has been providing “direct and material influence over the drafting of Canadian law to a variety of foreign governments, foreign owned companies and to the citizens of foreign countries” and that “unauthorized provision of influence or control over Canadian law to foreign powers appears to be a prima facie act of treason against the Crown… Whereas merely furnishing unauthorized influence appears to be sufficient to qualify such act as a s. 46 of the Criminal Code violation, the CSA actually traded influence to a foreign power in exchange for money”.

[74] Again, the defendants rely on Exhibit “S” to this motion, as well as Exhibit “V” in support of this allegation. As indicated above, Exhibit “S” does not show that the CSA Group charges tiered fees to serve on or have weighted votes on standards development committees. Exhibit “V” is merely a list of representatives that serve on the Canadian Electrical Code Committee, which does include representatives of foreign governments. The defendants did concede that they do not know whether these representatives have votes on the committee and made no inquiries as to whether they paid a fee to serve on the committees. The evidence of the CSA Group indicates, however, that they do not. The defendants further concede that the foreign governments have a legitimate interest in the development of codes and standards used within their countries.

[75] The defendants alleged that an “authorization” is required from the Department of Foreign Affairs for the involvement of foreign representatives on the CSA Group committees, and persisted in this allegation even after being advised by the Department of Foreign Affairs that it did not consider the CSA Group to be a government entity, it did not interpret the CSA Group’s activities as “de facto” developing the law, and it was of the opinion that no authorization is required for the CSA Group to carry on its activities. While the defendant, Knight, expressed that it was his position that national security information was shared at Electrical Code meetings, he had no evidence to support this position and did not feel that it was “relevant” that no clearance was required from the Department of Foreign Affairs to serve on a committee, and that none of the information is classified by the government as secure.

[76] This allegation appears, for the purposes of this motion and based on all of the evidence and the defendants’ concessions, to be unfounded and without substance.

Allegation 3: The CSA Group Sells Whole Standards to Members

[77] The defendants’ allegations include statements of fact that in a meeting “CSA officials reminded the members present that any standard that they wanted could be developed for them and that CSA would sign off on it, provided that they paid money to CSA… CSA will sell standards for $120,000 to $250,000 each”. However, the unchallenged evidence of the CSA Group’s affiant was that there is a defined process for approving additions to the CSA standards development and that the process is structured to ensure that funding of a standard does not influence content.

[78] The unchallenged evidence of the plaintiff is that playground standards are not funded by government or industry, but rather are funded by sales of other codes and standards. The defendant, Knight, admitted that he did not seek to verify with any of the companies whether they paid a fee to serve on the committee. Further, he conducted no research that would link the fact of serving on the committee to the award of playground contracts.

[79] Again, the defendants did not take any steps to verify their serious allegations. The defendants purport that this allegation was made by a CSA staff member at the PlaySpaces Committee meeting (which develops standards for playgrounds) on February 18, 2009. However, the defendant, Knight, admitted that he did not attend the meeting and he would not identify the source of his information. The CSA Group produced the meeting minutes, in which there is no record of any such statement. The defendant, Knight, admitted he did not seek to verify the content of the February 18, 2009 meeting minutes before he published the allegations. The defendant, Knight, claimed that he had the original shorthand notes taken by his source at the meeting, but did not produce them. He did not verify the allegations with any committee members.

[80] For the purposes of this motion and based on all of the evidence, I am satisfied that there is no substance or any foundation to this allegation.

Allegation 4: The CSA Group Has Targeted Small Companies that Refused to Pay Protection Money; Industry Canada and the RCMP Cannot Investigate

[81] The defendants allege as a statement of fact that the CSA Group has targeted small companies that refused to pay protection money and has been approaching companies for payment of money in exchange for assurances that the CSA Group will not impede their operations. The defendants allege that the CSA Group has “successfully demanded money from several defendants’ confidential sources and, in one case, the source had to pay CSA all domestic profits in order to prevent CSA from attacking the company internationally”.

[82] There is no proof and no evidence that the CSA Group has targeted any companies to remove them from competition or threatened litigation. As “evidence” in support of this allegation, the defendants rely primarily on the CSA Group’s litigation taken in Federal Court to enforce its copyright against the defendants, to stop the defendants from communicating directly with CSA Group employees in the context of the ongoing litigation and the private prosecution commenced against CSA officers for treason, bribery, fraud on the government and breach of trust, and to warn the defendants not to engage in further defamatory attacks on the CSA Group and its individual employees. The defendants further alleged “threats” against the defendant’s father, Peter Knight, but have provided no details, evidence or any other support for this allegation.

[83] While the defendants allege that these proceedings are designed to eliminate them as competitors, I am of the view that the defendants cannot be seen as “competitors” based on all of the evidence before this Court. The defendants are not a standards development organization, accredited by the Standards Council of Canada; they do not develop any standards. They have, over the years, published a book which apparently simplifies understanding of the electrical codes in force at the time. More recently, they have published the Electrical Code as published by the CSA Group, and annotated it, which forms, in part, the copyright infringement litigation.

[84] The defendants have proffered, in support of their allegation, a redacted correspondence chain purportedly from a confidential source who appears to take issue with the CSA Group’s assertion of its copyright. As regards information received from confidential sources, the defendants have admitted that they took no steps to verify the allegations with any other persons or in any other way. At present, the Federal Court copyright proceedings are still ongoing.

[85] Again, based on the evidence before this Court, there is no substance or foundation to this allegation.

Allegation 5: The CSA Group is Corrupt and has a Cozy Financial Relationship with certain Manufacturers.

[86] The defendants name, in these allegations, manufacturers such as Schneider Electric and Magna, and allege that these members stay on the CSA Group committees in order to control standards and to control the market and give the CSA Group money to influence the committees. The defendants have provided no evidence to support or substantiate these allegations. There are no fees required to serve on the CSA Group committees. The defendants have proffered no evidence that any manufacturer made payments to the CSA Group to influence committees. In reading these allegations, they are stated as allegations of fact, not comment, and are made without any verification, evidence or basis of truth.

[87] Again, for purposes of this motion and based on all of the evidence, and the lack of evidence to substantiate the allegations, these allegations are unsubstantiated and unfounded.

Allegation 6: The CSA Group did their usual “Shakedown”, Promising to Harm an Individual if he did not make a Payment Demanded by the CSA Group

[88] This allegation, again in the form of a statement of fact, is that the CSA Group did a “shakedown” of an alleged “confidential source”, by promising to harm the individual if he did not pay whatever the CSA Group wanted. There is no evidence to support this allegation and thus it is unsubstantiated. The defendants did provide redacted correspondence in response to undertakings, which relates to use of the CSA Group’s copyrighted materials without permission. It does not substantiate any of the allegations made as regards the “shakedown” in the blog post. The defendant, Knight, admitted that he did not independently verify any of the information supposedly received from the “confidential source”.

[89] Again, for the purposes of this motion, and based on the lack of evidence, this allegation is without substance or foundation.

Allegation 7: The CSA Group Fabricated a False Set of Electrical Laws and Provided them to the Defendants

[90] The defendants allege that the CSA Group fabricated a false set of electrical “laws” and gave them to the defendants. Again, there appears to be no evidence in support of this allegation. It is the evidence of the principal of the CSA Group that the advanced memorandum sent to the defendants is a dynamic document that is subject to amendment until the final code is published and “the document that was provided to Peter Knight was neither false nor fabricated”. The defendants have proffered no evidence to support their allegation nor to establish that the advanced memorandum given by the CSA Group to the defendants at the request of the defendants was different from that given to any other party.

[91] Again, for the purposes of this motion, there is no evidence to support the allegation.

Allegation 8: The Canadian Nuclear Safety Commission Washes/Launders Nuclear Regulations through the CSA Group for Liability Protection

[92] The defendants allege as fact that the CSA Group “provides liability protection to the CNSC [Canadian Nuclear Safety Commission] in trade for $1 million per year” and that this is an “in and out scandal” and a “protections racket”. The allegation further implies that their actions compromise safety.

[93] The evidence of the CSA Group’s affiant, which remains unchallenged, is that the CSA Group does not offer any form of liability protection to CNSC and that to the knowledge of the CSA Group, the referencing of the CSA Group codes and standards within laws administered by CNSC has no impact on CNSC’s liability.

[94] Again, the defendants have neither provided any evidence of this allegation nor taken steps to verify the allegation. The defendants have admitted in cross-examinations that where the CSA Group has sought liability protection, it is for the benefit of the CSA Group and not CNSC. The defendants have provided no evidence to establish that CNSC obtains immunity from liability by virtue of using the CSA Group standards or is a true fact that could form the basis for comment. The defendants did not seek to verify the allegation with CNSC prior to publishing it, but rather only asked CNSC the amount of funding they paid for nuclear standards development. The defendants’ assertion that CNSC’s mandate requires it to develop standards on its own without CSA Group involvement is without foundation or any evidentiary support. Moreover, the defendants have proffered no evidence nor any instance where safety was compromised by CNSC using CSA Group developed codes and standards.

[95] Again, for the purposes of this motion, and based on the lack of any evidence, these allegations are without substance.

Allegation 9: The CSA Group Violated the Law by Not Subjecting “Legislative Amendments” to “Electrical Law” to Public Review

[96] The allegation includes statements of fact that the CSA Group “decided not to subject amendments to existing electrical laws to public review… or, more bluntly, the CSA decided to violate the law”. The unchallenged evidence of the CSA Group’s affiant is that the CSA Group has duly carried out the public review process as set forth in the CSA Group’s directives. The evidence does indicate that a Federal Court decision held that there is “a serious issue to be tried” as to whether the correct type of public review process is being followed. However, no court has, as yet, determined the issue and the current public review process is considered adequate by the CSA Group’s accreditation body, the Standards Council of Canada, and was followed in this case.

[97] No evidence was proffered to establish that the CSA Group “deliberately” violated any “law”. The CSA Group followed the public review process set forth in its directives and approved by the Standards Council of Canada. There is nothing to establish that it deliberately violated any law.

[98] Again, for the purposes of this motion, and based on the absence of any evidence to support the defendants’ allegation, the allegation is unfounded and without substance.

Allegation 10: The CSA Group Uses Taxpayer Dollars for Private Interests in the Opening of Foreign Offices and Facilities.

[99] The defendants allege that the CSA Group has committed “abuses” and “appears to be using taxpayer dollars for private interests” in establishing offices near golf clubs and other recreational areas. These allegations are unsubstantiated and the defendants have provided no evidence of such.

[100] Thus, based on all of the foregoing, there is no evidence proffered by the defendants to establish that any of these allegations are valid or based on proven fact. Based on the foregoing, they are unfounded and unsubstantiated. The publisher did not seek to verify the allegations before publishing them, or where he did, he discarded, omitted or ignored the information provided to him that was contrary to his thesis or belied his statements. Accordingly, for the purposes of this motion, these allegations are unsubstantiated and unfounded and do not and cannot constitute or support a valid PIRC defence.

[101] None of these allegations can be seen to be true. None can be used to support the defences advanced by the defendants in support of this motion. Looking at the record before the Court, a trier of fact, looking through the reasonableness lens could conclude that no defences advanced by the moving party would succeed. Based on all the evidence before this Court, as set forth and analyzed above, I am of the view that no defence advanced by the moving party, including truth, fair comment, qualified privilege or PIRC would succeed for the reasons set forth above.

[102] I am satisfied that the tests regarding no valid defences, set forth by the Court of Appeal in, inter alia, Pointes (Ont. C.A.), Levant v. Day (Ont. C.A.) and Bondfield, supra, have been met here and that a trier could conclude that none of the defences advanced would succeed.

Malice

[103] In addition to the reasons above, the defences of fair comment, qualified privilege and PIRC are defeated by actual or express malice.

[104] Actual or express malice is established where someone publishes a defamatory expression (i) knowing that it is false; (ii) recklessly indifferent as to whether it is true or false; (iii) for the dominant purpose of injuring the plaintiff because of spite or animosity; or (iv) for some other dominant purpose which is improper or indirect.

[105] Evidence of actual malice may exist “intrinsically”, based on the mode and style, tenor, tone and spirit of the publication, if the language is more abusive, extreme, exaggerated, inflammatory, sensationalized, offensive, excessive or extravagant than required. In addition, the following “extrinsic” factors have been considered to be evidence of malice: (i) repetition of the libel; (ii) statements made in reckless disregard for the truth; (iii) statements made without taking steps to check or verify the facts; (iv) overly wide dissemination of statements made via the Internet; (v) the defendant’s reassertion of his belief in the charge after the charge has been disproved in legal proceedings; (vi) the conduct of the defendant up to and including trial; (vii) omitting significant information that was contrary to the defendant’s thesis; (viii) reliance on an obviously biased source; (ix) a biased and disdainful attitude on the part of the defendant toward the plaintiff; and (x) failure to make an inquiry or further investigation: Rodger D. McConchie & David A. Potts, Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004), at pp. 301 and 320; Brown on Defamation, supra, Vol. 5 at pp. 16-120, and 16-138 - 16-139; Armstrong v. Corus Entertainment Inc., 2016 ONSC 5242, at para. 47.

[106] Lack of proper investigation or verification of allegations constitutes malice. Publishing subsequent articles attacking the claimant and alluding to a libel action is evidence of malice. Where, after publication, a defendant obtains proof that what he said was untrue, failure to retract a serious charge provides evidence of malice: Rogacki v. Belz (2004), 243 D.L.R. (4th) 585 (Ont. C.A.), at paras. 45, 46, 49, 52; Farrell v. St. John’s Publishing Co. Ltd. (1986), 58 Nfld. & P.E.I.R. 66, leave to appeal to SCC refused, [1986] S.C.C.A. No. 246, at para. 45; Brown on Defamation, supra, at pp. 16-138 to 16-139; Graham v. Purdy, 2017 SKQB 42, at para. 220; and Awan v. Levant, 2016 ONCA 970, 133 O.R. (3d) 401, leave to appeal to SCC refused, [2017] S.C.C.A. No. 71, at para. 55.

[107] Based on a careful reading of the blog posts, which are all set forth in the Issues Summary of the defendants, in evidence in this motion and analyzed in the Allegations section above, I am satisfied that the blog posts are replete with unsubstantiated and unfounded allegations, and constitute, in essence, based on all the evidence, personal attacks on the CSA Group that allege illegal, treasonous conduct on the part of the plaintiff supporting a finding of malice. Indeed, the defendant, Knight, testified that the defendants solely targeted the CSA Group, and no other standards development organizations, because “CSA is busy attacking in all sorts of courtrooms, so I have more interest in researching the outfit that’s attacking me than an outfit that hasn’t been”.

[108] In this case, I am of the view that there is both intrinsic and extrinsic malice. The intrinsic malice is evidenced by the use of language in the defendants’ blog posts that is abusive, inflammatory, and excessive. As regards extrinsic factors, the allegations are repeated, there appears to be a reckless disregard for the truth, as the allegations, based on the absence of evidence proffered by the defendants, is unsubstantiated and there appears, based on the evidence before this Court, to have been no actual attempt to verify the facts or to make any further inquiry or investigation in that regard. Despite having been confronted with evidence indicating that certain of the allegations were clearly untrue, the defendants persisted in repeating those same allegations in any event.

[109] I am of the view, based on all of the foregoing, that the allegations were advanced and motivated by malice as against the CSA Group. Accordingly, the defences of fair comment, qualified privilege and PIRC, which I have already found not to be valid are, in any event, defeated by my finding of malice in this case.

[110] I further note that the defendants have, since the copyright litigation was commenced, complained to the RCMP about their allegations, above listed, filed a private prosecution against the CSA Group, filed a complaint with the Law Society of Ontario regarding the CSA Group’s legal counsel and threatened principals of the CSA Group with proceeding with Criminal Code charges against them. The RCMP did commence an investigation, but closed it shortly thereafter. The private prosecution proceeding was dismissed at first instance and on appeal. The Law Society investigation file was not proceeded with. I am of the view that, in the context of the whole of these proceedings, the foregoing can also be characterized as motivated by malice.

Public Interest Balancing

[111] 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.

[112] The “public interest balancing” has been defined in recent case law from the Court of Appeal. In Bondfield, supra, at para. 22, the Court of Appeal stated:

In Platnick v. Bent, 2018 ONCA 687, at para. 98, this court suggested that the public interest balancing in section 137.1(4)(b) could begin with the question “Does this claim have the hallmarks of a classic SLAPP?”

[113] In the case of Lascaris v. B’nai Brith Canada, supra, at paras. 31-32, the Court of Appeal stated:

“…[T]his action has none of the recognized indicia of a SLAPP lawsuit. As pointed out in Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60, at para 99, those indicia are:

• a history of the plaintiff using litigation or the threat of litigation to silence critics; • a financial or power imbalance that strongly favours the plaintiff; • a punitive or retributory purpose animating the plaintiff’s bringing of the claim; and • minimal or nominal damages suffered by the plaintiff.”

[114] There is no history of the CSA Group using litigation or the threat of litigation to silence critics. It appears from the evidence that there is a power imbalance in favour of the CSA Group. However, there is no evidence of a punitive or retributory purpose animating the CSA Group’s bringing of the defamation claim. They commenced this action legitimately and were attempting to stop the allegedly defamatory statements from circulating in the public through blogs and social websites. Finally, as I have found below, there is very likely to be more than minimal or nominal damages suffered by the CSA Group.

[115] 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, 2016 ONSC 6785, 410 D.L.R. (4th) 380, aff’d 2018 ONCA 690, 428 D.L.R. (4th) 568, at para. 83; and Fortress Real Developments Inc. v. Rabidoux, 2017 ONSC 167, 6 C.P.C. (8th) 373.

[116] In Pointes (Ont. C.A.), supra, at para. 90, the Court of Appeal has clarified this test as follows:

…Assuming the plaintiff has cleared the merits hurdle in section 137.1(4)(a), a common sense reading of the claim, supported by sufficient evidence to draw a causal connection between the challenged expression and damages that are more than nominal will often suffice.

[117] The Court went on to state, at para. 98:

In making the determination required under s. 137.1(4)(b), the motion judge will bear in mind that the plaintiff has the onus under the legislation. In applying that burden, however, the motion judge must appreciate the very significant consequences to the plaintiff if the motion is allowed under s. 137.1(4)(b). The courtroom door will be closed on the plaintiff even though the claim may have ultimately succeeded on the merits. The Anti-SLAPP Advisory Panel envisioned this result only if the plaintiff had a ‘technically valid cause of action’ and had suffered ‘insignificant harm’. The language of s. 137.1(4)(b) does not contain those limitations. However, I think the Panel’s words do describe the kind of case that should be removed from the litigation process through s. 137.1(4)(b).

[118] Further, the Court stated at para. 88:

The harm suffered or likely to be suffered by the plaintiff as a consequence of the defendant’s expression will be measured primarily by the monetary damages suffered or likely to be suffered by the plaintiff as a consequence of the impugned expression. However, harm to the plaintiff can refer to non-monetary harm as well. The preservation of one’s good reputation or one’s personal privacy have inherent value beyond the monetary value of a claim. Both are tied to an individual’s liberty and security interests and can, in the appropriate circumstances, be taken into account in assessing the harm caused to the plaintiff by the defendant’s expression: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at paras. 117-21; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at paras. 79-80.

[119] The Court of Appeal, in its decision in Levant v. Day (Ont. C.A.), supra, at para. 18, stated:

…While the harm suffered or likely to be suffered may often be measured primarily by the monetary damages suffered or likely to be suffered, the ‘preservation of one’s good reputation’ has inherent value beyond the monetary value of the claim: Pointes, at para. 88. … The statements attribute serious criminality to the respondent. …

[120] In Lascaris v. B’nai Brith Canada, supra, at paras. 39-41, the Court of Appeal stated as follows:

¶39 Section 137.1(4)(b) reads:

[T]he 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.

¶40 In my view, this balance clearly favours the appellant. I say that because, if the appellant’s action proceeds and if the appellant is ultimately successful, the damages to which the appellant would be entitled could be significant. Accusing any person of supporting terrorists is about as serious and damaging an allegation as can be made in these times.

¶41 That reality is sufficient to establish the seriousness of the harm to the appellant and to rebut the respondent’s submission that the appellant failed to lead any evidence to show any damage to his reputation arising from the impugned statements. On that latter point, I would adopt the observation made by Bean J. in Cooke v MGN Limited, [2014] EWHC 2831, [2015] 2 All ER 622 (QB), at para 43:

Some statements are so obviously likely to cause serious harm to a person’s reputation that this likelihood can be inferred. If a national newspaper with a large circulation wrongly accuses someone of being a terrorist or a paedophile, then in either case (putting to one side for the moment the question of a prompt and prominent apology) the likelihood of serious harm to reputation is plain, even if the individual’s family and friends knew the allegation to be untrue.

See also Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 111.

[121] It is the position of the CSA Group that they have suffered and will continue to suffer substantial harm. It is their position that, based on the decisions from the Court of Appeal, the purpose of the damages investigation is not to conduct a comprehensive damages assessment. Rather, the plaintiff is required to provide enough information to enable the court to make a ballpark determination about the nature and quantum of the damages suffered or likely to be suffered. Harm, as defined in s. 137.1, incorporates non-monetary harm as well as monetary harm. Such harm could include “the preservation of one’s good reputation… that has an inherent value beyond the monetary value of the claim”: Pointes (Ont. C.A.), supra, at paras. 87-90; Levant v. Day (Ont. C.A.), supra, at para. 18.

[122] I do not accept the defendants’ submissions that the plaintiffs’ motion must fail as the plaintiff cannot establish any damages. I am satisfied that the plaintiff is likely to suffer harm which will be able to be quantified in damages at the trial and, if the defamation action succeeds, could be significant. Further, based on all of the publications against the CSA Group and the responses and replies to those allegations as posted on Twitter and in blog feeds, I am satisfied that the CSA Group will experience harm to its reputation as well.

[123] There must also be sufficient evidence to permit the court to establish a causal link between the impugned expression and the damages claimed. While the defendants state that there are other potential causes for the damage to reputation, these are not identified. I am satisfied, based on a reading of all of the published materials and a reasonable interpretation thereof, as well as based on the responding posts and correspondence in evidence, that there is sufficient evidence to establish a causal link as regards reputation and a potential for damages. I am satisfied that the harm that is being experienced and will be experienced by the CSA Group is causally linked to the allegations contained in the articles and blogs published by the defendants.

[124] It is the position of the defendants that there is no demonstrable harm significant enough to outweigh the public’s interest in the statements made by them, and that the plaintiff provides no evidence to support allegations of harm.

[125] As the Court of Appeal stated in Levant v. Day (Ont. C.A.), supra, at paras. 20-22:

¶20 … [H]ere the appellant engaged in a sustained attack upon the respondent.

¶21 I cannot say that any damages awarded would necessarily be nominal, or that the respondent has suffered only insignificant harm.

¶22 On the other side of the balance, the quality of the expression and the motivation of the appellant are relevant to the measure of the public interest in protecting his expression: Pointes, at para 94. This court in Pointes, at para. 94, held that ‘deliberate falsehoods, gratuitous personal attacks or vulgar and offensive language’, all part of the expression here, may reduce the public interest in protecting that speech, compared to cases where the message is delivered ‘without the lies, vitriol and obscenities.’

[126] The defendants used their blogs, articles and Twitter account to focus a sustained assault on the plaintiff’s work, reputation and integrity, without a factual basis. I do not accept the moving party defendants’ position that the comments were not aimed at the CSA Group. I am of the view that said statements set forth in the defendants’ blogs, articles and Twitter account, and republished thereafter, were focused on and aimed at the CSA Group’s work, reputation and integrity. As previously stated, I do not find the statements made to be “comments” for purposes of s. 137.1 of the CJA, but rather statements purported to be of “fact” which were, indeed, demonstrated to be unproven and not established.

[127] 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 Blog/article posts and Twitter republications. In the circumstances of this case, I am of the view that there is no public interest in protecting said Blog posts/articles and tweets.

Analysis and Conclusion

[128] Despite the defendants’ assertions to the contrary, I am satisfied, based on all of the voluminous evidence before this Court, that the CSA Group is not and has never been, in its over 100 years of existence, a government agency or a part of government. It is not a part of Industry Canada.

[129] The CSA Group was incorporated by letters patent under the Companies Act, Part I, under the name “Canadian Engineering Standards Association” in 1919. The name was changed to CSA by letters patent in 1944, and in 2009 was continued under the Canada Not-For-Profit Corporations Act, S.C. 2009, c. 23. It currently functions as a membership-based organization under the Act.

[130] There are eight accredited standards development organizations, in addition to the CSA Group, in Canada. Like other standards development organizations, the CSA Group facilitates the development of codes and standards that may be referenced by regulators and incorporated into law by legislators. It publishes voluntary standards, which it has no power to enforce. It has no authority to draft legislation, or to control whether said codes become laws/regulations. It has no enforcement powers.

[131] I am satisfied that the comments made and widely disseminated by the defendants are not comments based on proven fact. Instead, they constitute a personal vendetta against the CSA Group in retaliation for a copyright action brought by the CSA Group against the defendants. I reiterate that the defendants admit that the copyright litigation was the proximate cause of the creation of the website.

[132] I am further satisfied that the CSA Group’s defamation action has substantial merit, as reviewed above. I note further that the CSA Group does not seek to prevent the defendants from commenting on the copyright lawsuit nor from expressing their views about standards development in Canada. The CSA Group does not seek to enjoin the defendants from expressing their views on general standards development, nor on the copyright infringement litigation, but only as relates to its defamatory allegations against the CSA Group.

[133] The defendants have chosen only to aim their blog posts and articles against one standard development organization, namely the CSA Group, and not against the eight others. The defendants state that this is because the CSA Group is the one that has brought litigation against them, such that they were provoked to target the CSA Group. The CSA Group commenced this defamation action to enjoin the defendants from making specific allegations against it that, based on all of the evidence before this Court, would appear to be serious, untrue, and without any evidence to substantiate them.

[134] Further, I do not accept the defendants “defences”. I am satisfied that the statements in issue in this motion are not true or based in fact. As indicated above, the statements are not fair comment as they are not “comment” based on proven fact.

[135] Qualified privilege is not applicable given the wide dissemination of the statements to the public at large.

[136] PIRC is not available as the defendants used no due diligence in trying to verify the serious allegations which included not only many untruths but also many allegations of criminal wrongdoing.

[137] Further, the defences advanced by the defendants, including qualified privilege and PIRC, are not applicable, as they were actuated by actual malice. They are defeated by that malice.

[138] Finally, I am satisfied that the harm suffered and to be suffered by the CSA Group, including actual damages and significant harm to reputation is and/or will be sufficiently serious such that the public interest in allowing the action to proceed outweighs the public interest in protecting the expression.

[139] Accordingly, the defendants’ motion to dismiss is denied. The matter is to proceed expeditiously to trial.

Costs

[140] Pursuant to s. 137.1(8) of the CJA, if a judge does not dismiss a proceeding under this section, as is the case here, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is not appropriate in the circumstances. In considering this section, I would request that both parties provide submissions as regards costs prior to making a final determination as regards costs.

C. J. Brown J. Date: April 25, 2019