Court File and Parties

COURT FILE NO.: CV-17-580805

DATE: 20210511

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2504027 Ontario Inc. o/a S-Trip!

AND:

Canadian Broadcasting Corporation (CBC) et al.

BEFORE: J.T. Akbarali J.

COUNSEL: Jeff G. Saikaley and Albert Brunet, for the Plaintiff/Responding Party

M. Philip Tunley and Lillianne Cadieux-Shaw, for the Defendants/Moving Parties

HEARD: April 30, 2021

ENDORSEMENT

Overview

[1] The defendants, the Canadian Broadcasting Corporation (“CBC”) and certain of its employees and interns, bring this motion seeking an order dismissing this action under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, on the basis that it is a strategic lawsuit against public participation (“SLAPP”). In the alternative, they seek an order for security for costs on the basis that the plaintiff is a shell corporation and has neither established that it is impecunious, nor that it is has a good chance of success on the merits.

Brief background

[2] The plaintiff, 2504027 Ontario Inc. o/a S-Trip!, is a corporation that was in the business of organizing trips, particularly for high school students aged 17-18 years old, to a variety of destinations. The plaintiff is part of a corporate family. It no longer operates its business, which has been transferred to another entity within the corporate family. It argues that the actions of the defendants tarnished its reputation to the point where it was no longer feasible for it to continue its business.

[3] CBC is Canada’s national broadcaster. It offers varied programming. Relevant to this motion, CBC offers an investigative program called “Marketplace” that reports on commercial claims and practices affecting Canadian consumers. CBC also reports the news.

[4] The individual defendants are or were CBC employees or interns who were involved in the Marketplace program and CBC’s news offerings.

[5] In February 2017, Marketplace aired a program about trips run by the plaintiff for graduating high school students. It revealed, among other things, that students had easy access to alcohol, were subject to inadequate supervision by the plaintiff, and engaged in sexually suggestive, and arguably sexually exploitative, activities organized by the plaintiff. It included footage of students engaging in high-risk behaviour, such as falling into swimming pools while intoxicated, or passing out on the floor.

[6] At that time, the plaintiff did not seek redress against the defendants by way of action, and served no notice under the Libel and Slander Act, R.S.O. 1990, c. L.12. Rather, it made a complaint to CBC’s ombudsman, to which Marketplace responded, and to which response the plaintiff replied. After its investigation, the ombudsman dismissed the claim, concluding that Marketplace had observed journalistic due process, and had not violated CBC’s journalistic standards and practices.

[7] While the ombudsman’s investigation was ongoing, on July 6, 2017, an eighteen-year old participant on a trip to Cuba organized by the plaintiff died, tragically and unexpectedly. I will refer to the student as A.S.

[8] CBC learned about A.S.’s death from Denise Hepburn, a parent whose child was on the same trip. She expressed concern to CBC about the death because she had seen the earlier Marketplace report. CBC sought comment from the plaintiff, which declined to make a statement at that time. CBC obtained an email from the plaintiff to the parents of other trip participants, which indicated that the physician who attended the scene pronounced A.S.’s death to be of natural causes.

[9] CBC was the first news outlet to report on A.S.’s death. It sent a crew to the airport to meet returning students, and filmed a segment for the local news outside the airport. The segment indicated that A.S. had died while on the trip, and that the plaintiff had indicated to parents that a doctor had pronounced the death to be from natural causes. After reporting on A.S.’s death, CBC segued to an interview with Charlsie Agro, one of the Marketplace hosts who had reported on the plaintiff’s trips back in February 2017. During the interview, CBC replayed some of the footage from its Marketplace report and discussed the concerning behaviour reported on by Marketplace, including binge drinking, poor supervision of students, and, for the first time, it made mention of allegations of drug use and sexual assault.

[10] Other news organizations also reported on A.S.’s death. Most did not report on the allegations of poor supervision, substance use and abuse, and sexually charged behaviour related to the grad trips run by the plaintiff, but at least one other outlet did.

[11] In addition to its news broadcast, CBC published an article about A.S.’s death online, and included a link to the Marketplace report in it.

[12] Eventually, CBC obtained a copy of the coroner’s report (although not from the plaintiff) which recorded that A.S.’s death was the result of natural causes. A.S.’s family released a statement to the same effect. Many news outlets reported that A.S. died as a result of natural causes, but the CBC did not.

[13] The plaintiff alleges that the CBC’s reporting of A.S.’s death, and particularly the juxtaposition of the reporting of A.S.’s death with the content from the Marketplace report, is defamatory in that it suggested, among other things, that the plaintiff’s actions caused or contributed to A.S.’s death. It alleges that the resulting damage to its reputation left it unable to continue its business. It claims significant damages.

[14] CBC brings this motion seeking an order dismissing the action under s. 137.1 of the Courts of Justice Act, on the basis that it is a SLAPP suit. In the alternative, it seeks an order for security for costs.

Issues

[15] This motion presents the following issues:

a. Should this action be dismissed under s. 137.1 of the Courts of Justice Act? Answering this question requires me to consider the following:

i. Does the proceeding arise from an expression made by the defendants that relates to a matter of public interest?

ii. If so, are there grounds to believe that:

1. the proceeding has substantial merit? This requires a consideration of the meanings of the words complained about that are capable of arising as a matter of law, and that did in fact arise in the minds of reasonable persons from the expression in issue, and whether those words lower the plaintiff’s reputation in the eyes of reasonable persons.

2. the moving party has no valid defence in the proceeding? This requires a consideration of the defences advanced by the defendants. On this motion, these are the defences of fair comment and responsible communication.

iii. Is the harm likely to have been suffered by the plaintiff as a result of the defendants’ expression sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression?

b. If the action is not dismissed under s. 137.1 of the Courts of Justice Act, should security for costs be ordered under r. 56.01(1)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194? This requires a consideration of the following:

i. Is there good reason to believe the plaintiff has insufficient assets in Ontario to pay the defendants’ costs?

ii. If so, is it just to order security for costs? This requires me to determine whether the plaintiff is impecunious, and whether its claim has a good chance of success on the merits.

[16] I turn to an analysis of these issues.

Legal Framework – s. 137.1 of the Courts of Justice Act

[17] Section 137.1 of the Courts of Justice Act provides:

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

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

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

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

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

(2) In this section,

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

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

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

a. there are grounds to believe that,

i. the proceeding has substantial merit; and

ii. the moving party has no valid defence in the proceeding; and

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

[18] The Supreme Court of Canada considered s. 137.1 in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 222, and Bent v. Platnick, 2020 SCC 23. It concluded that the section places burdens on both parties. First, the moving party defendant bears the initial burden to satisfy the court, on a balance of probabilities, that the proceeding in question arises from an expression made by the defendants, and that the expression relates to a matter of public interest. If the defendant meets that threshold onus, the burden shifts to the plaintiff to satisfy the court that (i) there are grounds to believe that the proceeding has substantial merit, (ii) there are grounds to believe that there is no valid defence(s), and (iii) the harm suffered by the plaintiff as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the plaintiff’s action to proceed outweighs the public interest in protecting the defendant’s expression.

[19] I turn now to consider the elements of the test.

Does the proceeding arise from an expression made that relates to a matter of public interest?

[20] There is no real dispute that the expression in question arises from the proceeding. The expression of which the plaintiff complains is causally related to this defamation action.

[21] The parties disagree over whether the expression in question relates to a matter of public interest. In Pointes, the Supreme Court of Canada held that in determining whether expression relates to a matter of public interest, the expression must be assessed as a whole. It must be asked whether some segment of the community would have a genuine interest in receiving information on the subject. The statutory language used in s. 137.1(3) confirms that “public interest” ought to be given a broad interpretation: paras. 27-28.

[22] However, there is a difference between expression that relates to a matter of public interest and expression that simply makes reference to something in the public interest, or to a matter about which the public is merely curious. “Neither of the latter two forms of expression will be sufficient for the moving party to meet its burden under s. 137.1(3)”: Pointes, at para. 29.

[23] “Ultimately, the inquiry is a contextual one that is fundamentally asking what the expression is really about”: Pointes, at para. 30. The Supreme Court of Canada underscored the importance of remembering the animating purpose of s. 137.1(3): to protect expression made in relation to matters of public interest and safeguard the fundamental value that is public participation in democracy.

[24] Although the plaintiff seeks to characterize the expression at issue in this case as relating to the death of a private citizen outside of Canada, and suggests that A.S.’s death was a matter of public curiosity but not of public interest, I do not agree. I have no difficulty in concluding that the expression at issue relates to a matter of public interest.

[25] The tragic and unexpected death of an 18-year-old, in Cuba on a graduation trip, under the supervision of a company in the business of offering such trips, is a matter about which some segment of the community would have a genuine interest in receiving information. Parents considering sending their children on such trips would be interested in understanding the circumstances around A.S.’s sudden death, and the company’s response to it, including how it responded to the needs of the other students on the trip once they learned of the tragedy.

[26] I thus conclude that the defendants have met their burden under s. 137.1(3). I now turn to consider whether the plaintiff is able to discharge its burden under s. 137.1(4).

Does the plaintiff’s claim have substantial merit? Is there a valid defence?

[27] The first hurdle, set out in s. 137.1(4)(a), requires the plaintiff to satisfy me that there are “grounds to believe” that its underlying proceeding has “substantial merit,” and that the defendant has “no valid defence.”

[28] In considering this factor, courts must be aware of the timing of the motion in the litigation process, the limited record and the potentiality of future evidence arising. This branch of the test is not a determinative adjudication of the merits of the underlying claim or the merits of the defence(s): Pointes, at para. 38.

[29] In considering the standard to apply to this branch of the test, the Supreme Court of Canada noted that a motion under s. 137.1 is meant to fulfil a different purpose than a motion to strike or a motion for summary judgment. Unlike a motion to strike, a motion under s. 137.1 contemplates that the parties will file evidence, and permits limited cross-examination, suggesting that it entails a consideration of the contents of the record. However, unlike a motion for summary judgment, a motion under s. 137.1 does not contemplate the filing of an extensive record to enable a determinative adjudication of the merits of the claim and defence(s): Pointes, at para. 38.

[30] Section 137.1(4)(a) requires that there be a basis in the record and in the law, taking into account the stage of litigation at which the motion is brought, for a finding that the underlying proceeding has substantial merit and that there is no valid defence: Pointes, at para. 39. In this case, the parties have exchanged documentary discovery, but no oral discovery has been held.

[31] Neither frivolous lawsuits nor lawsuits with only technical validity are sufficient to withstand a s. 137.1 motion: Pointes, at para. 47. Rather, an underlying proceeding will have substantial merit where it has a real prospect of success, described by the Supreme Court of Canada as “the prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff.” It requires more than an arguable case: Pointes, at para. 50.

[32] With respect to the evaluation of the defences under s. 137.1(4)(a), the plaintiff is required to show that there are grounds to believe that the defences which have been put in issue by the defendant on the motion are not valid: Pointes, at para. 56. If any defences are valid, the plaintiff has not met its burden and the underlying claim should be dismissed: Pointes, at para. 58.

[33] The query on validity mirrors the query on substantial merit. Both entail an assessment of the strength of the claim or defences as part of an overall assessment of the prospect of success of the underlying claim. The court must determine whether the plaintiff has shown that the defences put in play are not legally tenable or supported by evidence that is reasonably capable of belief such that they can be said to have no real prospect of success: Pointes, at para. 59.

[34] The plaintiff’s onus is to show that a reasonable trier could reject all of the defences put in play by the defendant. A defence that could go either way is a defence that a reasonable trier could reject: Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166, at para. 15.

[35] The plaintiff notes that in Lascaris v. B’nai Brith Canada, 2019 ONCA 163, at para. 33, the Court of Appeal for Ontario held that all a plaintiff need show is that “it is possible that the defence would not succeed.” With respect, I do not find this statement helpful. Possibility is something less than a defence that could go either way, as described in Bondfield. More to the point, it is something less than the standard described by the Supreme Court of Canada in Pointes, a decision not available to the Court of Appeal in Lascaris.

The Merits of the Plaintiff’s Claim

[36] The plaintiff’s claim sounds in defamation. The defendants do not dispute that two of the three required elements of the tort of defamation are present, in that the words (expression) of which the plaintiff complains were published, and that they refer to the plaintiff. The dispute between the parties arises over the third required element of the tort of defamation, whether the words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person: Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.

[37] This element requires me to consider the meanings that, as a matter of law, are capable of arising and that, as a matter of fact, did arise in the minds of reasonable persons from the expression in issue.

[38] A defamatory statement is “one which has the tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or dis-esteem”: WIC Radio Ltd. v. Simpson, 2008 SCC 40, at paras. 67-68. It is not necessary that everyone understands the words in a defamatory sense; it suffices that a reasonable person to whom they were published would understand them in a defamatory sense: Joanne St-Lewis v. Denis Rancourt, 2014 ONSC 3209, at para. 2, citing Lawson v. Baines, 2012 BCCA 117, at para. 27.

[39] The meaning of the words may be determined from the ordinary meaning of the words or from the surrounding circumstances, as they would be understood by the ordinary, reasonable, and fair-minded reader: Joanne St-Lewis, at para. 2.

[40] The plaintiff alleges that the most obvious defamatory meaning of the expression at issue is that dangerous behaviours, namely underage binge drinking and drug use, caused or contributed to A.S.’s death, and that the plaintiff bears some responsibility for the death.

[41] The defendants argue that the plaintiff is ascribing extravagant and overblown meanings to the expression that cannot arise as a matter of law. They argue that, while their reporting around the death of A.S. refers to previously reported, true facts about dangerous behaviours and risks on the trips run by the plaintiff, nothing in the words or context of the July publications insinuated any added element of deliberate condemnation, encouragement, deliberate deception, or knowing default on the part of the plaintiff.

[42] It is true that the expression in question did not explicitly claim a link between A.S.’s death and the students’ conduct on trips run by the plaintiff as reported by Marketplace. However, I find that there is a real prospect of success that the juxtaposition between the reporting of the death and the reviewing of the content of the Marketplace report will be found to have implied that, or at least raised the question whether, the plaintiff’s failure to adequately supervise the students may have caused or contributed to A.S.’s death. In McAlpine v. Bercow, [2013] E.W.H.C. 1342 (Q.B.), at para. 62, the England and Wales High Court held that a question, or rhetorical question, may, in principle, be understood to convey a defamatory meaning because the meaning of the statement or question depends on the context. In my view, there is a real prospect of success that, even if the July publications only raised a question about whether the plaintiff caused or contributed to A.S.’s death, the question itself lowered the plaintiff in the estimation of right-thinking members of society generally.

[43] I thus conclude that the plaintiff has discharged its burden to demonstrate that there is substantial merit to its claim.

Are there valid defences?

[44] The defendant relies upon two defences: first, the defence of fair comment and second, in the alternative, the defence of reasonable communication. The burden falls on the plaintiff to demonstrate that these defences are not valid.

[45] I note that there was some confusion as to whether the defendants were relying on the defense of justification in this motion. At the hearing, they clarified that they were not; rather, their argument with respect to the truth of the reporting relates to the defence of fair comment only.

Fair Comment

[46] The elements of the defensive fair comment were set out by the Supreme Court of Canada in WIC Radio, at para. 28. They require that:

a. the comment be on a matter of public interest;

b. the comment be based on facts, either stated or widely known, that are true or substantially true;

c. although the comment can be or include inferences from facts, it must be recognizable as comment;

d. the comment must be one that a person could honestly make on the proved facts; and

e. the comment was not actuated by express malice.

[47] A “comment” includes a “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof”: WIC Radio, at para. 26. What is comment and what is fact must be determined from the perspective of a reasonable viewer or reader: WIC Radio, at para. 27. The notion of “comment” is generously interpreted: WIC Radio, at para. 30.

[48] I turn now to the analysis of the elements of the defence.

[49] I have already found that the expression at issue is on a matter of public interest.

[50] The facts set out in the expression at issue – both in the online article and in the evening news report about A.S.’s death – are supported by evidence in the record. To the extent that the facts rely on the Marketplace report, there is a strong basis in the evidence to conclude that the report was well-researched and fairly presented. The Marketplace report describing the students’ conduct, including binge drinking and sexually charged behaviour, was supported by, among other things, students’ videos posted publicly on social media platforms, interviews by the Marketplace team with former employees of the plaintiff, and the Marketplace team’s own observations during its investigation, which included three members of the team booking into a hotel at the same time as students on trips run by the plaintiff, speaking to students directly, and observing and filming their behaviour, and the behaviour of the plaintiff’s employees.

[51] Moreover, there is also a strong basis in the evidence to support a conclusion that the facts reported about A.S.’s death were true. CBC reported on the plaintiff’s statement to parents of other students on the trip that A.S.’s death had been reported to be of natural causes.

[52] As I have noted, the crux of the issue is the juxtaposition of the reporting of A.S.’s death, followed immediately by a review of the Marketplace report through an interview with one of the Marketplace hosts about the concerns that the Marketplace report revealed about student behaviour on the plaintiff’s trips, and whether the plaintiff was meeting its promise to parents to adequately supervise trip participants. This same connection was made in the online article, which linked to the Marketplace report.

[53] CBC did not report as a fact that the plaintiff’s lax supervision caused or contributed to A.S.’s death, but a reasonable person could draw the inference that there may have been a connection between the plaintiff’s lax supervision of the students and the death of A.S. While an assertion that the plaintiff did cause or contribute to A.S.’s death is one that might (eventually) be capable of proof, it is legally tenable that the inference that the plaintiff may have caused or contributed to A.S.’s death is generally incapable of proof and is recognizable, by a reasonable reader, as comment, especially because “comment” must be generously interpreted. Moreover, the inference is one that can be honestly drawn based on the true facts that were either reported by CBC in July, or in the Marketplace report, or otherwise already known by the audience.

[54] The last element of the defence looks at whether the expression was actuated by express malice. In WIC Radio, at para. 101, the Court adopted the definition of malice set out by Dickson J. in Cherneskey v. Armadale Publishers Ltd., 1978 CanLII 20 (SCC), [1979] 1 S.C.R. 1067, at p. 1099:

Malice is not limited to spite or ill will, although these are its most obvious instances. Malice includes any indirect motive or ulterior purpose, and will be established if the plaintiff can prove that the defendant was not acting honestly when he published the comment. This will depend on all the circumstances of the case. Where the defendant is the writer or commentator himself, proof that the comment is not the honest expression of his real opinion would be evidence of malice. If the defendant is not the writer or commentator himself, but a subsequent publisher, obviously this is an inappropriate test of malice. Other criteria will be relevant to determine whether he published the comment from spite or ill will, or from any other indirect and dishonest motive.

[55] Malice can be established by reckless disregard for the truth: Bent, at para. 136.

[56] In WIC Radio, the Court held that the requirement that malice be the dominant motive for expressing an opinion in order to defeat fair comment helps maintain a proper balance between protecting freedom of expression and reputation: at para. 106.

[57] The plaintiff alleges that the CBC was actuated by malice, arguing that it was focused on publishing for “the ulterior purpose of reaching a higher engagement rate, higher profits, and to further its own goal of gaining clicks at [the plaintiff’s] expense.”

[58] In my view, the plaintiff’s argument on malice has little chance of success. The plaintiff admits the CBC was not actuated by spite towards it. Rather, it argues CBC had an improper purpose in publishing the comment. It argues that CBC was trying to reach more viewers, and relies on steps the CBC took after the publications in July 2017, by, for example, linking the Marketplace report to an article about a woman who drank tainted alcohol in Mexico – something having nothing to do with the plaintiff.

[59] I have difficulty with the idea that linking the Marketplace report to subsequent publications — a practice that the evidence in the record supports is a common journalistic practice — provides a basis to conclude that the defendants had an indirect and dishonest motive or ulterior purpose for publishing the expression at issue. I also have difficulty with the argument that there is something improper in attempting to reach more viewers on a topic of public interest. There is little, if any, basis in the evidentiary record to conclude that the dominant motive for the publications at issue here was malice.

[60] Moreover, in my view, there is little basis in the record to conclude that there are material inaccuracies of fact in the expression at issue. There is evidence in the record to support a conclusion that the plaintiff was given many opportunities, both prior to the release of the marketplace report and again in July, to provide additional information, but it declined to do so. There is evidence in the record that supports a conclusion that the facts reported by CBC were true.

[61] I thus conclude that the plaintiff has failed to discharge its onus to demonstrate that there is no valid defence to its action. It follows that the plaintiff’s claim must be dismissed under s. 137.1 of the Courts of Justice Act.

[62] Having reached this conclusion, it is not necessary to consider the defence of responsible communication.

The Balance of Harms

[63] Given my conclusion above, it is not necessary to undertake the balancing exercise set out in s. 137.1(4)(b) of the Courts of Justice Act. However, for completeness, I will address the balance of harms.

[64] Under this aspect of the test, the plaintiff bears the onus of satisfying me that the harm it suffered as a result of the publication is sufficiently serious that the public interest in permitting its action to continue outweighs the public interest in protecting the defendants’ expression.

[65] In Pointes, at para. 68, the Supreme Court of Canada held that as a prerequisite to weighing the harms, s. 137.1(4)(b) requires the plaintiff to show (i) the existence of harm; and (ii) causation – that is, that the harm suffered was a result of the expression.

[66] Although harm can be presumed in a defamation action, the presumption is weaker in the case of a corporate plaintiff, like in this case, because “a company cannot be injured in its feelings, it can only be injured in its pocket. Its reputation can be injured by a libel but that injury must sound in money”: Barrick Gold Corp. v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416, at para. 49.

[67] In any event, the plaintiff argues that it has suffered real harm. It states it had to transfer its business to another corporate entity when its name became irreparably tainted. It also argues that it suffered financial losses because participants in future trips cancelled.

[68] The evidence of these harms is not very strong. There is some confusion in the record about a pre-planned corporate re-organization, and how it impacted the plaintiff. It appears that at least some of the plaintiff’s student travel business was always intended to operate through another corporation in the corporate family. It is not clear whether the transfer of the plaintiff’s business to another entity in the corporate family has mitigated its loss in whole, or in part, or at all. The plaintiff did not produce financial information from its related companies. The plaintiff delivered a damages brief completed by an expert as an answer to undertakings. It states that the calculations in the brief take into account that a related company is now operating the business formerly operated by the plaintiff. However, the damages brief was never attached to an affidavit. The brief is hearsay, and cannot be used for proof of the truth of its contents.

[69] In addition, the evidence about trip cancellations raises concerns, some related to causation, which I address below, but also because there is no admissible evidence to allow me to understand the impact of the cancellations on the overall business in the corporate family, and whether they establish harm to the plaintiff.

[70] However, even assuming that the plaintiff can establish that it suffered some harm, it has not met its burden of establishing that its losses were caused by the expression at issue.

[71] The plaintiff has produced evidence of about 80 trip cancellations in the period between July 7, 2017 and October 25, 2017, including reasons for the cancellations where its employees recorded them, but it did not produce evidence of its cancellations after the Marketplace report, nor did it provide evidence of cancellations after October 25, 2017.

[72] With respect to the period of time for which there is evidence, many of the customers raised safety concerns in explaining why they were cancelling their planned trips with the plaintiff. Many cancelling customers indicated they personally knew A.S., or were from the same community as A.S.

[73] Only three cancellations make specific reference to CBC or Marketplace. Two of these simply reference the Marketplace report and A.S.’s death. The third one states “[A.S.’s death], safety/supervision, CBC, hearing stories from recently returned passengers and stories from son’s YOB trip a few years ago.” No one referenced only the impugned expression.

[74] Other reasons given, often along with A.S.’s death, include friends cancelling, a feeling of lack of safety, the expense of the trip, and no parental consent. Some participants mentioned the news more broadly. I recall here that the fact of A.S.’s death was widely published by many news outlets.

[75] I also note that the one other news outlet that reported on A.S.’s death and also reported on high-risk behaviours engaged in by students on the plaintiff’s trips had over a million viewers, while the CBC news broadcast had 34,000 viewers.

[76] The evidence does not allow me to conclude, on a balance of probabilities, that any harm the plaintiff suffered was caused by the July publications, as opposed to the Marketplace report, or other news broadcasts, or from people simply learning about A.S.’s death in the community.

[77] In Pointes, at para. 72, the Court held that “evidence of a causal link between the expression and the harm will be especially important where there may be sources other than the defendant’s expression that may have caused the plaintiff harm.” Here, there are many other sources that may have caused the plaintiff harm, and no effort has been made to isolate the cause of the harm the plaintiff states it suffered, or, put another way, the harm caused by the expression at issue in this case.

[78] As such, the plaintiff has, at best, shown a weak case of harm, and has not met the pre-requisite of showing that the harm was caused by the defendants’ expression.

[79] Given that the publication at issue is on a matter of public interest, the fact that the plaintiff has at best demonstrated a weak case of harm, and has not met the pre-requisite of showing the harm was caused by the expression, I conclude that the balance of the public interests at stake in this case favours free expression.

Security for Costs

[80] Because I have dismissed this proceeding under s. 137.1, it is not necessary to consider the defendants’ alternative claim for security for costs.

Costs

[81] If the parties are unable to agree on costs, I will receive brief written submissions as follows:

a. The defendants shall deliver costs submissions of no more than four pages, plus a bill of costs and any offers to settle, within 10 days of the release of these reasons;

b. The plaintiff shall deliver responding costs submissions of no more than four pages, plus a bill of costs and any offers to settle, within seven days of receipt of the defendants’ submissions;

c. The defendants may deliver reply costs submissions of no more than two pages within two business days of receipt of the plaintiff’s responding submissions.

Conclusion

[82] The plaintiff’s action shall be dismissed under s. 137.1 of the Courts of Justice Act.

J.T. Akbarali J.

Date: May 11, 2021