Court File and Parties

COURT FILE NO.: CV-19-118 DATE: 20190628 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GILBERT LABINE Applicant – and – BRIAN WEBSTER and PINO DEMASI Respondents

COUNSEL: Douglas W. Judson, for the Applicant Brian Webster, participating by telephone Pino Demasi, appearing in person

HEARD IN THUNDER BAY: June 26, 2019

JUDGE: F.L. Myers J.

Reasons for Decision

Background

[1] Gilbert Labine is a prominent, senior member of the criminal law bar in Thunder Bay.

[2] Pino Demasi owns, operates, and administers websites and pages on various social media platforms under the brand The Real Concerned Citizens of Thunder Bay.

[3] Brian Webster is associated with a social media site that operates under the brand Thunder Bay Courthouse – Inside Edition. Mr. Labine asks the court to find that Mr. Webster is the owner, operator, and author of posts on this social media site. Mr. Webster expressly denies that this is so.

[4] Both of the respondents are self-described citizen journalists. They attend court proceedings and report on them on these internet sites and social media pages. [1] The sites have a large public following. Mr. Labine has presented evidence indicating that there is some public controversy surrounding these sites. Comments posted on the pages in evidence support the notion that the sites attract some readers who are concerned that the justice system and society in general are too soft on criminals. They seem to respond with particular harshness to racialized people who are accused of crimes, including, especially, alleged Indigenous offenders. Whether this is by design or a natural operation of social media in 2019, Mr. Labine is plainly outraged and offended by what he perceives as racist pandering that he attributes to the respondents.

[5] As a criminal lawyer, Mr. Labine has fallen within the respondents’ journalistic crosshairs. He provides a legal defence for people charged with serious criminal offences. He says that the respondents have libeled or defamed him in their internet postings. He argues that the respondents are interfering in the administration of justice by unleashing a mob against participants in the criminal justice system. He says that unless the respondents are restrained, they will use their social media sites to chill or dissuade people from performing their roles representing accused people and protecting their constitutional rights.

[6] Mr. Labine therefore brings this summary application proceeding asking the court to grant an injunction requiring Messrs. Webster and Demasi to stop defaming him on their social media sites. He also seeks prejudgment and post-judgment interest.

Outcome

[7] For the reasons that follow, this application is dismissed on procedural grounds. This is not a proper case for a summary form of proceeding on affidavit evidence. A proper trial is required to resolve the issues raised by the parties.

[8] I am not ordering that this application be converted into an action or a trial of an issue because, at the opening of the hearing, Mr. Judson advised that Mr. Labine has recently commenced a new action (a regular lawsuit) against the same defendants for the same relief. Commencing a new lawsuit when there is already a proceeding pending between the same parties for the same subject matter is generally an abuse of the court’s process. Defendants in a second action can move to dismiss the action under Rule 21.01(3)(c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the grounds that there is already a proceeding pending between the parties. However, in this case, the second proceeding – the action - is actually the correct manner of proceeding. It is this summary application that is the inappropriate procedure. Accordingly, this application is dismissed without any findings on the merits and therefore without prejudice to any issues that may be raised in the action between the parties if it proceeds.

Summary Applications

[9] The Rules of Civil Procedure authorize two types of lawsuits generally: actions and summary applications.

[10] Actions are the usual procedural process for a typical civil lawsuit such as a claim for defamation. In an action, the parties are entitled to pre-trial discovery of each other’s documents and evidence on relevant issues. Then they have a trial to allow a judge to determine contested facts and to apply the law understanding the full circumstances.

[11] Summary applications can be used in cases where a trial with live witness evidence is not necessary. Evidence is submitted by written affidavits and the court hears legal argument about the documents. The Rules of Civil Procedure allow summary applications to be used where a specific statute authorizes it or, generally, where the issues involve the interpretation of documents like contracts, bylaws, and wills, where the evidence is not generally contested.

[12] Under Rule 14.05(3)(g) an application can be used to seek an injunction where it is ancillary to other relief properly claimed in a summary application. For example, if the court were interpreting a bylaw, the applicant could ask for an injunction to enforce the court’s interpretation.

[13] Rule 14.05 does not authorize the applicant to bring a libel claim by way of a summary application. The injunction sought in this case is the primary relief claimed. It is not just ancillary to other relief properly authorized under Rule 14.05. The issues that were argued in court show why this case is not appropriate for summary resolution.

The Need for Discovery of Documents

[14] Messrs. Webster and Demasi want to show that what was written on the social media pages about Mr. Labine was true. Most of the allegedly defamatory comments involve things said or done by Mr. Labine for his client at a particular bail hearing. If the respondents prove that what was written about that hearing was true, then they have a full defence to Mr. Labine’s claim of libel. To prove that what was reported was true, they want to show the court the transcript of the bail hearing. But they do not have a copy of the transcript and they have not been able to get one yet.

[15] Mr. Demasi argues that Mr. Labine has the transcript and that he has interfered with Mr. Demasi’s efforts to obtain a copy from the court reporter. Mr. Demasi says that Mr. Labine claimed that Mr. Demasi’s efforts to obtain the transcript violated the publication ban on the bail proceeding and that Mr. Labine sicked the police on him for trying to obtain a copy of the transcript. The respondents therefore asked me to order Mr. Labine to produce a copy of the transcript so they can show that what was written about his performance at the bail hearing was true.

[16] None of what Mr. Demasi told me was established in sworn evidence. Mr. Judson said that he had no knowledge of the existence of a transcript. When I asked if he was asserting any legal basis to refuse production of the transcript under the Criminal Code, he indicated that he was not making any argument that production of the obviously relevant document might violate the Criminal Code publication ban provisions.

[17] This is another reason why a summary application is not the right procedure and an action is required. In an action, the parties are required to list and produce to each other copies of all relevant documents that are not protected from disclosure by privilege. There is no automatic and comprehensive right to discovery of documents in a summary application. The parties need discovery rights especially in cases, like this one, where there are serious contests as to the facts.

There are Material Facts in Dispute

[18] A key fact that is contested in this proceeding is the role of Mr. Webster. Mr. Webster swears that someone named “Bill” is responsible for Thunder Bay Courthouse – Inside Edition. None of the other witnesses, including Mr. Demasi, have ever heard of or dealt with Bill. Mr. Labine has filed evidence from other witnesses that suggest that they know or had reason to believe that Mr. Webster is actually the operating mind and author of Thunder Bay Courthouse – Inside Edition. As unlikely as Mr. Webster’s evidence seems, I cannot find Mr. Webster’s sworn evidence is a lie as requested by Mr. Judson. I am confronted with sworn, written evidence that conflicts. I have no way to decide which is true. It has long since been recognized that basic fairness requires that before Mr. Judson can ask me to rule that Mr. Webster’s evidence lacks credibility and is untrue, at minimum, he must cross-examine Mr. Webster to confront him with the contradictory evidence so that he can try to explain the contradiction between his evidence and the evidence of other witnesses. Browne v Dunn (1893), 6 R 67 (HL).

[19] No cross-examination of witnesses has taken place in this summary application procedure. In an action process, competing witnesses will attend trial, give their evidence, and submit to cross-examination. A trial is required to resolve heavily contested and fundamentally material facts that will likely require the judge to assess the credibility of numerous witnesses.

Inadmissible Evidence

[20] A summary application is a legal proceeding that results in a final judgment like a trial. Therefore, like a trial, only admissible evidence can be received and considered by the court. The court can only hear evidence from people with first-hand knowledge of information generally. Hearsay evidence concerning contentious matters is not admissible in summary application proceedings under Rule 39.01(5).

[21] Much of the evidence relied upon by Mr. Labine in his own affidavit and the other affidavits that he filed contained inadmissible hearsay evidence. Hearsay evidence is evidence about things that another person told the witness out of court and that the witness wants to repeat in court to try to show that the thing said to him or her out of court was true.

[22] Mr. Labine has filed news reports containing information that he argues shows that the respondents have defamed others and committed other wrongdoing. This is hearsay. The reporters were not witnesses and there is no evidence before the court from anyone with first-hand knowledge about those matters.

[23] Mr. Labine relies on a particular article in a publication that reports that Mr. Webster admitted to the author that he was the operating mind and author of Thunder Bay Courthouse – Inside Edition. An admission made out of court by a party in a lawsuit is admissible in evidence as an exception to the hearsay rule. But, using an article that was published out of court to prove the admission is hearsay. The author of the article who reported hearing Mr. Webster’s admission did not testify in this application. Mr. Judson says that he was unable to obtain an affidavit from the author and he did not serve a summons on the author under Rule 39.03 to require him to attend for examination under oath in support of this application.

[24] I am unable to make findings on several of the issues raised by Mr. Labine in the absence of admissible evidence.

No Right Proven to an Injunction

[25] An injunction is an extraordinary order made by a court to compel people to act or to refrain from acting in specified ways under threat of being held in contempt of court. It is a powerful remedy that is granted sparingly. The usual remedy for a plaintiff who succeeds in proving a claim of libel is an award of money damages. Money is the principal way to compensate for the harm caused by libel. If Mr. Labine proves that he was defamed and that his professional reputation has been harmed or that he has lost business, for example, then he will be entitled to an award of damages to compensate him for the losses inflicted upon him. Damages are generally not available in a summary application procedure.

[26] An injunction can be available to remedy libel where the plaintiff proves that an award of damages will not properly compensate the plaintiff. An injunction is particularly appropriate where a defendant is on a campaign to repeatedly defame the plaintiff despite court orders and damages awards already having been made. For example, in Astley v Verdun, 2011 ONSC 3651, Chapnick J. wrote:

[21] Permanent injunctions have consistently been ordered after findings of defamation where either (1) there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that he is liable to the plaintiff for defamation; or (2) there is a real possibility that the plaintiff will not receive any compensation, given that enforcement against the defendant of any damage award may not be possible: see Hunter Dickinson Inc. v. Butler, 2010 BCSC 939, at paras. 75-79; Griffin v. Sullivan, 2008 BCSC 827, at paras. 119-27; Newman v. Halstead, 2006 BCSC 65 at paras. 297-301; Cragg v. Stephens, 2010 BCSC 1177, at paras. 34-35, 40.

[27] There is no evidence that the defendants will continue to defame Mr. Labine or that they will not pay compensation if ordered to do so. Mr. Demasi took down the allegedly libelous posts from his pages as soon as Mr. Labine complained. Unlike Mr. Demasi, the Thunder Bay Courthouse – Inside Edition repeated once a reference to Mr. Labine by an unflattering nickname to which he objects. That is far from the evidence required to meet the test for an injunction at this stage. Inadmissible suggestions that there have been other incidents of defamation of other people who are not parties to this proceeding are similarly insufficient bases to prove the requirements of an injunction.

Policy Issues Raised by Mr. Labine

[28] Mr. Judson argues that this is a case study on an issue of importance to the administration of justice. He argues that the respondents are impairing lawyers and others’ abilities to ensure that the criminal justice system functions properly with due regard for the constitutional rights of accused people. He argues as well that the respondents are flaming racial tensions in Thunder Bay and that doing so is especially harmful to reconciliation and to Canadian society in general.

[29] This is a lawsuit. It is not a social science case study. The court is engaged in resolving a civil dispute by finding the relevant facts and applying the appropriate law. Rather than approaching this matter as a general inquiry into the effect of social media on court proceedings, the law already deals with the competing tensions at play. The court does not lightly interfere with peoples’ freedom to express themselves.

Having said that, freedom of expression does not protect authors from responsibility for hate speech or from liability for libel. See: Paramount v. Kevin J. Johnston, 2019 ONSC 2910, at para. 64.

[30] In Grant v. Torstar Corp., [2009] 3 SCR 640, 2009 SCC 61, the Supreme Court of Canada discussed the appropriate balance between the freedom of expression of journalists engaged in reporting on matters of public interest and the law of defamation. The Court first discussed the fundamental importance of freedom of expression in Canadian society as follows:

[48] First and foremost, free expression is essential to the proper functioning of democratic governance. As Rand J. put it, “government by the free public opinion of an open society . . . demands the condition of a virtually unobstructed access to and diffusion of ideas”: Switzman, at p. 306.

[49] Second, the free exchange of ideas is an “essential precondition of the search for truth”: R. v. Keegstra, [1990] 3 S.C.R. 697, 1990 SCC 24, at p. 803, per McLachlin J. This rationale, sometimes known as the “marketplace of ideas”, extends beyond the political domain to any area of debate where truth is sought through the exchange of information and ideas. Information is disseminated and propositions debated. In the course of debate, misconceptions and errors are exposed. What withstands testing emerges as truth.

[50] Third, free expression has intrinsic value as an aspect of self-realization for both speakers and listeners. As the majority observed in Irwin Toy, at p. 976, “the diversity in forms of individual self‑fulfillment and human flourishing ought to be cultivated in an an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed”.

[31] At para. 58, the Court then set out the competing concern that freedom of expression can be abused to hurt people:

Canadian law recognizes that the right to free expression does not confer a licence to ruin reputations. In assessing the constitutionality of the Criminal Code’s defamatory libel provisions, for example, the Court has affirmed that “[t]he protection of an individual’s reputation from wilful and false attack recognizes both the innate dignity of the individual and the integral link between reputation and the fruitful participation of an individual in Canadian society”: R. v. Lucas, [1998] 1 S.C.R. 439, 1998 SCC 815, at para. 48, per Cory J. This applies both to private citizens and to people in public life.

People who enter public life cannot reasonably expect to be immune from criticism, some of it harsh and undeserved. But nor does participation in public life amount to open season on reputation.

[32] Balancing these competing policy concerns, the Supreme Court created a new defence applicable to claims of libel that both protects people from defamation but also ensures that libel law does not unduly hinder journalists engaged in freedom of expression while reporting on matters of public interest for the benefit of Canadian society. The Court wrote:

[62] The protection offered by a new defence based on conduct is meaningful for both the publisher and those whose reputations are at stake. If the publisher fails to take appropriate steps having regard to all the circumstances, it will be liable. The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause. A defence based on responsible conduct reflects the social concern that the media should be held accountable through the law of defamation. As Kirby P. stated in Ballina Shire Council v. Ringland (1994), 33 N.S.W.L.R. 680 (C.A.), at p. 700: “The law of defamation is one of the comparatively few checks upon [the media’s] great power.” The requirement that the publisher of defamatory material act responsibly provides accountability and comports with the reasonable expectations of those whose conduct brings them within the sphere of public interest. People in public life are entitled to expect that the media and other reporters will act responsibly in protecting them from false accusations and innuendo. They are not, however, entitled to demand perfection and the inevitable silencing of critical comment that a standard of perfection would impose. [Emphasis added.]

[33] The Court set out the elements of the new defence to libel claims for journalists as follows:

[126] The defence of public interest responsible communication is assessed with reference to the broad thrust of the publication in question. It will apply where

A. The publication is on a matter of public interest, and

B. The publisher was diligent in trying to verify the allegation, having regard to:

(a) the seriousness of the allegation;

(b) the public importance of the matter;

(c) the urgency of the matter;

(d) the status and reliability of the source;

(e) whether the plaintiff's side of the story was sought and accurately reported;

(f) whether the inclusion of the defamatory statement was justifiable;

(g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and

(h) any other relevant circumstances.

[34] The need for responsible communication and journalism is especially important when social media is involved. Social media has great strengths and great power as a medium of instantaneous communication to a huge number of people. But it also has great potential to inflict very serious harm and injury if misused. Barrack Gold Corp. v Lopehandia, 2004 ONCA 12938, [2004] OJ No 2329 (CA).

[35] The policy arguments made by Mr. Labine do not change the law. The law has already defined the proper balancing of interests for those who claim that their reputations have been injured by defamatory statements made by others reporting on matters of public interest. To this point, the respondents have asserted that the statements concerning Mr. Labine are true. They have not taken any steps to show that their conduct, if defamatory, met the requirements of the responsible communication defence. Were they diligent in trying to ascertain the truth or did they just write sensational allegations without concern for the damage they might inflict?

[36] Mr. Webster denies that he was the author, so he has not able to discuss the diligence or lack of diligence of “Bill”. How he and Mr. Demasi choose to defend themselves in Mr. Labine’s action will dictate the discovery obligations on the parties and will shape the evidence to be obtained for the trial.

Conclusion

[37] In my view this proceeding was not properly brought as a summary application. It is not listed as the type of lawsuit for which the summary application procedure is available under Rule 14.05(3). A trial is required to resolve contested, material facts and to provide the factual background necessary for a judge to apply the nuanced balancing that the law provides in these types of cases. Discovery is required. Admissible evidence must be developed. Evidence is required to support an injunction if that relief is pressed. The “policy” arguments may help inform an understanding of the Supreme Court of Canada’s rulings. But they do not in themselves provide any basis for granting legal relief today.

[38] If Mr. Labine envisioned himself championing a case for the defence bar or unnamed, vulnerable accused people to achieve a policy end, then a lawsuit was not going to help him in that endeavour no matter which procedure was adopted. But the civil law does recognize that the reputation of a professional person is particularly important to his or her livelihood. If Mr. Labine wishes to make a claim to seek compensation for harm to his reputation suffered at the respondents’ hands and he is prepared to endure the right of the respondents to repeat their statements with impunity in a lawsuit (in which they are protected by absolute privilege) then this proceeding is not the right one but an action may well be available.

[39] I decline to award costs to the respondents despite their apparent success in this proceeding. While this process was not properly advanced by Mr. Labine, his concerns are readily understandable and the respondents did little in this proceeding to justify their conduct. Mr. Webster’s evidence is highly suspicious at best. If one wants to be a responsible journalist, citizen or professional, the first step toward accountability is to stand up and be counted. I recognize that I deferred ruling on the request for production of the transcript that the respondents wish to adduce to support their defences. In light of the outcome, the issue of production is moot and can be dealt with in the action if it proceeds.

[40] The respondents should understand that with freedoms comes much responsibility. I have referred the parties to relevant precedents above to assist them in understanding the legal rules applicable to the issues. Social media publishing provides great potential for public benefit. But it carries equal or perhaps even greater risks of harm to people targeted and to society at large - especially if racist mobs are unleashed. As I said previously, I make no findings on the merits in this decision. However, the respondents are the cause of the issues in this proceeding and the serious allegations against them remain outstanding. Although Mr. Labine brought the wrong process, this is not a case for costs.

[41] The application is dismissed without prejudice to the issues raised in Mr. Labine’s new action. There is no order as to costs.

F.L. Myers J. Released: June 28, 2019

Footnotes

[1] I am not finding that Mr. Webster is the author of posts. But it is clear that much information that ends up posted originates from him.