Marc Lemire v. Craig Burley, 2021 ONSC 5036

COURT FILE NO.: CV-19-71357

DATE: 2021-07-16

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Marc Lemire Plaintiff and Responding Party

• and -

Craig Burley Defendant and Moving Party

COUNSEL:

Daniel Mauer, for the Plaintiff

Nick Papageorge, Wade Poziomka and Nicole Biros-Bolton for the Defendant

HEARD: June 25, 2021

REASONS FOR DECISION ON MOTION

THE HONOURABLE JUSTICE L. C. SHEARD

Overview

[1] The plaintiff, Mark Lemire, has sued the defendant, Craig Burley. Mr. Lemire claims damages in defamation relating to statements and internet posts made by Mr. Burley in 2018 and 2019 concerning Mr. Lemire’s alleged past involvement in, and association with, persons and groups who espouse white supremacist, racist, anti-Semitic and homophobic views.

[2] In addition to his claim for monetary damages, Mr. Lemire seeks the following orders from the court:

1. an order that Mr. Burley, as well as any internet service provider (“ISP”) or host site, remove any and all defamatory material posted by Mr. Burley;

2. an order that any third-party ISP de-index any reference to Mr. Lemire; and

3. an order prohibiting Mr. Burley “from publishing or causing to be published anything” about Mr. Lemire without his prior consent.

[3] Mr. Burley asks this court to dismiss Mr. Lemire’s action against him pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”). The provisions under that section, colloquially referred to as anti-SLAPP legislation (strategic lawsuits against public participation), are intended to “function as a mechanism to screen out lawsuits that unduly limit expression on matters of public interest through the identification and pretrial dismissal of such actions”: see 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 16.

[4] In his statement of claim, Mr. Lemire claims to have suffered damages as a result of Mr. Burley’s statements and “tweets”, including the loss of his employment with the City of Hamilton (the “City”) and damage to his personal and professional reputation. Mr. Lemire further claims that Mr. Burley’s expressions have affected Mr. Lemire’s ability to obtain satisfactory replacement employment and have also put Mr. Lemire’s safety and that of his family at risk.

Factual Background

A. Mr. Burley’s evidence

[5] Set out below is an overview of affidavit evidence put forth by Mr. Burley on this motion and taken from the cross-examinations conducted on those affidavits.

[6] Mr. Burley is a local lawyer, community advocate, and a member of the LGBTQ community. He describes himself as active in local politics and engaged in citizen and political activism, including involvement on issues connected to municipal government. In part, he expresses his views through his online “Twitter” account. At the material time, Mr. Burley had approximately 2500 “followers” on his “public” account. On August 1, 2019, Mr. Burley changed the account to a “private” account, such that only approved followers can see the posts.

[7] In the late 1990’s, media attention was given to certain far-right organizations, such as the “Heritage Front” (“HF”), and persons who were alleged to be connected with such organizations, such as Ernst Zündel, Paul Fromm, and Wolfgang Droege. It was in that context that Mr. Burley first became aware of Mr. Lemire, who was reportedly associated with those persons and organizations.

[8] Mr. Burley’s information and knowledge about Mr. Lemire came from public sources. One such source were the decisions of the Federal Court in Re Zündel, 2004 FC 86, 39 Imm. L.R. (3d) 271 (“Zündel No.1”) and Re Zündel, 2005 FC 295, 251 D.L.R. (4th) 511 (“Zündel No. 2”) concerning Ernst Zündel, a much-publicized Holocaust denier.

[9] In Zündel No. 2, Blais J. accepted the evidence that Mr. Lemire was the last known leader of the HF, which Zündel described as “the most powerful racist gang to hit Canada since the real Nazis back in the Dirty Thirties” (see para. 30). Justice Blais stated that, based on “reliable evidence provided… in camera”, Zündel “was in close association with Mr. Lemire” and was “well aware of Mr. Lemire’s presidency [of the HF] and particularly of the efforts of Mr. Lemire, a computer expert, to develop websites to disseminate messages of racial hatred and to incite violence” (see paras. 39, 49).

[10] In the early 2000’s, Mr. Burley learned of the website freedomsite.org, operated by Mr. Lemire, which hosted publications that, in Mr. Burley’s view, contained hate propaganda. Mr. Lemire’s involvement with freedomsite.org and another website, stormfront.org, were referenced in Warman v. Lemire, 2009 CHRT 26, 68 C.H.R.R. D/205,[^1] a decision of the Canadian Human Rights Tribunal (the “Tribunal”).

[11] Mr. Warman had brought a complaint against Mr. Lemire under s. 13 (later repealed) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the “CHRA”). Section 13 included as a discriminatory practice the communication of any matter likely to expose persons to hatred or contempt by reason that those persons are identifiable on the basis of a prohibited ground of discrimination.

[12] Mr. Warman complained about a number of postings, including the “Canadian Immigrant Poem”, posted on stormfront.org, which had a sub-category entitled “Stormfront Canada”, where a forum designated as “Stormfront White Nationalist Community – International” was located. Mr. Lemire had posted the poem there and included reference to the freedomsite.org website and his contact address. The Tribunal concluded that the caricature of immigrants set out in the poem was “gross and likely to offend”, but the poem fell short of the “extreme ill-will” required to contravene s. 13(1) of the CHRA.

[13] The Tribunal noted that Mr. Lemire had openly admitted his involvement as the “Webmaster” and administrator of freedomsite.org – an admission he also makes on this motion. The Tribunal also noted that freedomsite.org had received over 10 million visits since it began operation in 1995.

[14] The freedomsite.org website hosted a message board labelled “Controversial Columnists”. The Tribunal noted in Warman that the message board posted articles with titles such as the following:

1. Does the Canadian Jewish Congress understand democracy?;

2. of SARS – Chinese eating cats;

3. Anti-racism is a form of mental illness;

4. Immigration can kill you;

5. The Asian invasion; and

6. Question about the holohoax.

[15] The Tribunal found no evidence that Mr. Lemire had written any of these articles. In cross-examination on this motion, Mr. Lemire reiterated that he was not the author, but simply provided a website for the free expression of many points of view.

[16] The Tribunal found only one instance in which an article had been posted by Mr. Lemire on the freedomsite.org website that contravened s. 13: a column entitled “AIDS Secrets: what the Government and the Media Do not Want You to Know”. The Tribunal found that the “AIDS Secrets” column would be “likely to expose homosexuals and Blacks to hatred and contempt by reason that they are identifiable on the basis of sexual orientation, colour and race, which are identified grounds of discrimination under s. 3 of the [CHRA]” (see para. 198). Notwithstanding that finding, the Tribunal dismissed the complaint on the basis of its finding that s. 13 was unconstitutional. That finding of unconstitutionality was overturned upon judicial review: see 2012 FC 1162, 76 C.H.R.R. D/308, aff’d. 2014 FCA 18, 78 C.H.R.R. D/247.

[17] In the 2010’s, Mr. Burley became active in local politics in the City. He used his Twitter account to comment or “tweet” on local politics. Mr. Burley believes that he has a reputation for being critical of Hamilton’s City Councils and its city government, for maintaining “a highly oppositional role against government”, and for providing “highly opinionated commentary on events in City government”.

Chronology of Events

[18] In July 2018, a friend told Mr. Burley that Mr. Lemire was employed by the City and showed Mr. Burley an excerpt from a 2012 City organizational chart that showed Mr. Lemire as “Network Analyst 1”.

[19] In October 2018, after attending a vigil at a local synagogue following the murder of 11 Jews in Pittsburgh, Pennsylvania, Mr. Burley felt moved to take action to “combat hate in our communities”. He noticed a local counsellor, Maureen Wilson, at the vigil, and contacted her to ask if she was aware of “a prominent Canadian hate propagandist [un-named by Mr. Burley] working at the City”.

[20] The following day, Mr. Burley was invited to meet with the City’s head of human resources to disclose what he knew about the alleged hate propagandist. In advance of that meeting, Mr. Burley prepared a memorandum (the “Memo”) providing “high points” of what he learned about Mr. Lemire. Following the November 2018 meeting, Mr. Burley heard nothing further from the City.

The VICE Article

[21] On May 8, 2019, Mack Lamoureux, with the news website VICE, published an article entitled “Former Neo-Nazi Leader Has Been On city of Hamilton’s Payroll for Years”. The VICE article made reference to Warman and stated that Mr. Lemire was employed by the City in the early to mid-2000s:

Around the same time of his hiring by the city of Hamilton—the early to mid-2000s—Lemire was in the midst of his failed effort to restore prominence to the neo-Nazi group the Heritage Front, a group one anti-racist researcher described as “the most significant hate group in Canada since the Klan of the 1920s” and the government called, in 1994, the “the most prominent white supremacist group in Canada.” While Lemire denies being the leader, court records and an article (available on Lemire’s own website) written by Heritage Front founder Gerry Lincoln indicate Lemire was an important member during Heritage Front’s heyday and the group’s leader in its waning days.

[22] The VICE article identified Mr. Lemire as a white supremacist, a former leader of the HF and a network analyst in the IT department for the City since 2005. It stated that Mr. Lemire was best known “for running hate-filled websites and fighting a Canadian Human Rights Tribunal complaint over a racist and homophobic blog post hosted on one of his sites”. It described Mr. Lemire as “influential in the neo-Nazi movement, guiding his fellow Canadian fire-right extremists into adopting the Internet as a propaganda tool” and “the founder of freedomsite.org, [then an] active website that hosted articles focused on minorities and immigration”. It also identified that, as a network analyst, Mr. Lemire had access to sensitive data regarding City employees.

[23] The VICE article also stated as follows:

The Heritage Front—which, according to a former member, wanted to take over part of the country and turn it into a “whites only” territory—was known for its gang-like violence in the 1990s, organizing white power campaigns and concerts, and trying to infiltrate politics. In 1994, one of the Heritage Front's leaders was outed as a mole for the Canadian Security Intelligence Service. According to his own website and public records, after the CSIS revelation, Lemire attempted to pick up the pieces of the group in 2000 or so and transform it into a group resembling modern day white nationalist and alt-right organizations like those associated with David Duke or Don Black of Stormfront. He ultimately failed in his goal, and by the end of the decade the group was no more.

Lemire laid the groundwork for the communication networks of the modern day far-right. The person who runs the Anti-Racist Canada blog—a longstanding website chronicling the far-right in Canada—has for years been documenting Lemire’s connection to far-right extremism. According to the researcher, who has asked to remain anonymous due to repeated and serious threats of violence, "While [Lemire] wasn't as publicly facing as some, he was more knowledgeable about the way the internet could be used to disseminate propaganda. He was one of the earliest users, not just in Canada but internationally.” He described Lemire as one of Canada’s most influential racists in modern history.

[24] The VICE article included comments made by a former City Counsellor, Matthew Green (now a Member of Parliament), who was reported as commenting that he “felt disgusted upon learning of Lemire’s employment and felt betrayed no one made him aware a man with connections to the neo-Nazi movement was working in the [City’s] IT department”. Mr. Green commented that, given “Marc Lemire’s ties to violent white supremacist organizations, I feel that both my family and I were placed in a serious undue risk of harm… [and] would have expected and rightly deserved a private and confidential briefing from our City Manager and the Director of Human Resources as was typically the case with instances of HR matters relating to identifiable individuals of potential public interest”. Mr. Green was also quoted as saying, “I feel that as a high level IT analyst Mark Lemire’s employment in this role is a form of active infiltration by [the far-right] within Canada”.

[25] The VICE article also included the following quote from the City’s mayor, Fred Eisenberger:

From a broader city perspective, the City of Hamilton encourages all Hamiltonian’s to stand up against prejudice, exclusion and discrimination based on ethnicity, race, religion, country of origin, disability, sexual orientation or other differences. We are committed to being a #HamiltonForAll and ensuring persons affected by hatred can find refuge in our great City.

[26] The Vice article referenced information, consistent with Mr. Burley’s own inquiries, that Mr. Lemire’s name was not disclosed in the City’s phone line, work charts, or email directories, and that Mr. Lemire did not leave his name or his title on any voicemail message with the City, instead leaving his extension number, which, according to VICE’s sources, was not usual practice.

[27] Mr. Burley states that he had no knowledge that VICE was investigating Mr. Lemire and had no involvement in the preparation of this article. On this motion, there is no evidence to suggest otherwise.

[28] The VICE article generated numerous Twitter posts from members of the media, Mr. Burley and others. When Mr. Burley heard that the City was denying knowledge of Mr. Lemire’s background, he posted a portion of the Memo on his Twitter account to show that the City had known for months about Mr. Lemire’s background.

[29] In a tweet posted by Matthew Van Duncan, writing for the Hamilton Spectator, a local newspaper, Van Duncan reported that the City manager announced that there would be an investigation into the Marc Lemire controversy and was quoted as stating “I will be ensuring it is a very thorough investigation because the concerns are serious”.

Other Media Attention

[30] According to Mr. Burley, the VICE article triggered “intense” media attention over Mr. Lemire’s employment with the City. He references a number of articles and Twitter posts:

• ON Point with Alex Pierson referred to Mr. Lemire as a former “neo-Nazi leader”;

• the Hamilton Spectator accused Mr. Lemire of posting “hateful views years after neo-Nazi activity”; and

• Samantha Craggs of CBC Hamilton reported that the LGBTQ advisory group “calls on city not to fly Pride Flag, citing Marc Lemire case” and reported that the City was investigating Mr. Lemire’s computer and cell phone.

[31] Mr. Lemire also referred to the CBC article by Samantha Craggs posted on May 8, 2019. The Craggs article contained many of the same comments set out in the VICE article but included a statement that there was no evidence of any wrongdoing by Mr. Lemire in his work at the City.

[32] The Craggs article also stated, in part, the following:

• Mr. Lemire denied that he is a white supremacist or neo-Nazi and affirmed that he has not been involved in politics for many years and never was the leader of the HF;

• Matthew Green, the City’s first black councilor, said

• that he felt betrayed by the City “for employing the former head of a white supremacist organization in its IT department”;

• that, as “an outspoken anti-racism advocate, he had serious concerns about how much of his personal information and communications Marc Lemire, a former Heritage Front leader can access”;

• that he felt betrayed by senior City staff, who “must have been in the know and willfully kept this potential threat from me”; and

• that he did not believe Mr. Lemire should not be allowed to work, but “not at a government job where he has access to sensitive information”, expressing “deep concerns about this breach of public trust knowing now that this person may have had complete an undetectable access to these communications”;

• Mr. Lemire was involved in the white supremacy movement in the early 90s and started a website called the freedomsite.org in 1996, which was last updated in 2015 (in cross-examination on this motion, Mr. Lemire confirmed the accuracy of that statement);

• Elisa Hategan¸ identified as a writer, speaker and regional coordinator of Against Violent Extremism, who had been involved in the white supremacy movement in the early 90s, said that

• Mr. Lemire was always handy with computers, one of the first in the movement to be online, and worked with computers in the office of notorious Holocaust denier Ernst Zündel; and

• that Mr. Lemire started “coming around from 1992 onward [and] was at every meeting, every rally. At these meetings, we were talking about white revolution and taking over the country and creating a white ethnostate in parts of Canada. We were talking about stocking up on guns and weapons, and he was part of it all”; and

• Mr. Lemire was closely connected to “white nationalist Paul Fromm, who recently moved to Hamilton and ran for mayor [in 2018].”

[33] The Craggs article also included an emailed statement received from Mr. Lemire stating that he had not been involved in politics for many years and that his website was used simply to archive his battle against s. 13 of the CHRA.

[34] Mr. Burley spoke with Mack Lamoureux on May 8, 2019, and in the following days was contacted by journalists for interviews. In his own words, Mr. Burley “continued to campaign my dismay and disgust that my City government would employ a hate propagandist”.

The May 9 and 10, 2019, Tweets

[35] At paragraphs 7(a)–(o) of his statement of claim, Mr. Lemire identifies Mr. Burley’s tweets that he alleges are defamatory. In these tweets, Mr. Burley says such things as

i) the means are unknown by which the City hired Mr. Lemire, “who has been the author and spreader of so much racist hate, for work in such a sensitive security position. My personal view is that …he should be un-hired”;

ii) it was “vastly more likely” that Mr. Lemire was hired to do “a very politically sensitive ‘network analysis’ job not in spite of his history as the webmaster and online guru of the racist far right, but because of it;

iii) Mr. Lemire “did not have a conventional resume in the mid-2000s that he somehow left the hate propaganda out of. He’d spent his whole life doing online hate propaganda and being paid for it, and got a job at the City doing exactly the same kind of work”:

iv) Mr. Lemire was doing computer surveillance before [being hired by the City] and was doing computer surveillance after; and

v) it seems unlikely to be accidental that for this job [with the City] Mr. Lemire’s “principal qualifications were his long experience running what you’d broadly call political intelligence, for the Heritage Front and its allied terror orgs”.

[36] Mr. Burley asserts that his tweets were based on his research, what was said about Mr. Lemire in Zündel No. 1 and Zündel No. 2, what could be found in the mainstream media and what he learned from researchers he trusted, such as Mr. Warman.

[37] In Mr. Burley’s tweets, he expressed the view that the City had failed to properly vet Mr. Lemire before hiring him for a “sensitive information security position”. This and related concerns were also voiced by the media and others. Even the City Manager characterized the concerns as “serious”.

[38] In broad terms, the thrust of Mr. Burley’s posts is that (i) the City had either deliberately hired a person they knew had connections to the far right, or turned a blind eye to Mr. Lemire’s background; and (ii) Mr. Lemire’s IT position in the City’s security department gave access to organizations such as the HF, thereby posing a local and national security risk, and giving Mr. Lemire the opportunity to further his objectives as a neo-Nazi and member of the alt-right.

[39] Mr. Burley asserts that the focus of his posts was entirely on the conduct of the City in its hiring of Mr. Lemire, who was known to be associated with white supremacist individuals and organizations, such as Zündel, Droege, and the HF, and who hosted websites that posted articles that expressed views that were, at a minimum, racist and homophobic.

[40] Mr. Burley’s posts also asserted that the City deliberately concealed Mr. Lemire’s name as an employee (he was not shown in phone lists and other publicly disclosed City records) because the City was using Mr. Lemire’s experience with organizations such as the HF for the City’s own goals of a deepening their intelligence links with the far right. Mr. Burley also appears to express a view that there is a connection between the formation of “clusters of terror cells” in Hamilton, the City having “planted a Nazi national security threat in the middle of their security department”.

[41] Mr. Burley’s information about Mr. Lemire also came from Mr. Warman, who advised Mr. Burley and, by email of May 12, 2019, advised the City’s Mayor and members of City Council, that Mr. Lemire was still operating freedomsite.org, attaching to his email articles posted on the freedomsite.org website.

[42] Throughout the summer of 2019, Mr. Burley continued to post comments respecting the City’s hiring of Mr. Lemire, the nature of his employment, and the potential security risk that he posed. Mr. Burley asserts that many of his tweets were in response to material published elsewhere, usually in the mainstream media.

[43] Mr. Burley asserts that the focus of his tweets throughout was on the City and his view of the City’s lack of concern for its citizens, evidenced by its employment of an individual with Mr. Lemire’s background.

Mr. Lemire’s employment with the City comes to an end

[44] On August 16, 2019, the City issued a news release respecting Mr. Lemire’s employment with the City. It reads as follows:

The City of Hamilton and Market Lemire have mutually agreed to end Mr. Lemire’s employment. This decision follows two investigations into Mr. Lemire’s workplace activities. Following these investigations, the City made a decision that Mr. Lemire’s off-duty activities and associations did not reflect the culture, values and beliefs of the City. There was however no evidence that Mr. Lemire inappropriately accessed, utilized or gathered any data, including City emails or private information, or that he inappropriately used any City equipment.

While we can certainly appreciate the public’s interest in this matter, as this is an employee matter, we will not be able to comment further on the details of the end of our employment relationship.

[45] The last of the tweets referenced in Mr. Lemire’s statement of claim is dated August 29, 2019, just days after the City announced that Mr. Lemire’s employment with the City had ended.

B. Mr. Lemire’s Evidence

[46] Taken as a whole, Mr. Lemire’s evidence on this motion is that Mr. Burley carried out a “personal attack” against him and engaged in a campaign to destroy Mr. Lemire’s reputation with the City and within the community of Hamilton through Mr. Burley’s Twitter accounts and his connections with journalists and prominent Hamiltonians.

Chronology of Events

[47] Mr. Lemire states that he did not learn about the Memo until a portion of it was posted by Mr. Burley on May 8, 2019. Mr. Lemire asserts that the Memo and the accompanying photograph of him “impugns” his credibility and integrity, and labels him a “neo-Nazi propagandist”. Mr. Lemire asserts that a Mr. Burley falsely states that Mr. Lemire had access to a great deal of vulnerable personal information, which enabled him to remotely view and copy sensitive information, and that it was “unconscionable” for the City to employ Mr. Lemire.

[48] Mr. Lemire appears to take greatest issue with Mr. Burley’s tweets alleging the following:

• that he was unqualified for his employment with the City;

• that he abused his position with the City to “spy”;

• that he used his employment and the City’s “security apparatus” to ensure that the country’s “hotbed of hate grows even hotter, with ugly consequences for all Canadians”; and

• that the City’s Security department had been “infiltrated by a far-right activist operative of the” HF – namely, Mr. Lemire.

[49] Mr. Lemire refers to specific comments posted by Mr. Burley to his Twitter account with which he takes particular issue, which include the following:

a) July 6, 2019 – that Mr. Lemire may have had access to Hamilton Police Services computer servers by virtue of his employment;

b) July 29, 2019 – that Mr. Lemire abused his employment position by accessing City emails and other sensitive information for purposes unrelated to his employment or for nefarious ends;

c) August 16, 2019 – that, before being hired by the City, Mr. Lemire’s employment background was “working at McDonald’s, very briefly trying to infiltrate the Armed Forces and doing a ton of racist Nazi shit”;

d) August 29, 2019 – that “Who’d have thought that when they [the City] planted a Nazi national security threat in the middle of their security department that it would lead to the formation of clusters of terror cells here in the area?”; and

e) August 13, 2019 – “… but in the case of these guys [apparently including Mr. Lemire in that reference] – all of whom would love nothing more than to develop the ability to Aum Shinrikyo all of us…”

[50] Mr. Lemire identifies Aum Shinrikyo as a Japanese doomsday cult who executed a “horrific sarin gas attack on the Tokyo subway system in 1995”.

[51] Mr. Lemire asserts that, through Mr. Burley’s untrue and defamatory Twitter posts, Mr. Lemire has been vilified “as a Nazi or hatemonger who was unfit or qualified for his position as a City Information Technology analyst and who lied to his employer about his credentials in order to carry out terrorist or other nefarious deeds for terrorist organizations or for criminal or nefarious reasons.”

[52] Mr. Lemire states that Mr. Burley’s Twitter posts or replies received “likes”, “retweets” and “mentions”, which broadened Mr. Burley’s audience beyond his own followers, and which fueled media reports.

Damages Claimed

[53] Mr. Lemire asserts that, as a result of Mr. Burley’s actions, the City launched a forensic investigation into his personal and professional life, following which his employment with the City came to an end.

[54] Mr. Lemire defends his qualifications and lists his employment history and training, and his value to the City. He produced the City’s letter of employment dated August 14, 2019, in which Mr. Lemire is described as “a highly skilled and capable employee”.

[55] Mr. Lemire also challenges the reliability of the two Zündel decisions, noting that, after those decisions were made, the Supreme Court of Canada held that Security Certificates, on which the fact-finding processes relied upon in those decisions, were unconstitutional.

[56] Mr. Lemire’s evidence is that the freedomsite.org website (still accessible in 2019 through archive websites) was used to publish controversial articles containing “an array of opinions on all parts of the political spectrum, regardless” of Mr. Lemire’s own views on the articles posted. Mr. Lemire said the purpose of the “Controversial Columnists Section” was to allow for the exchange of ideas that were considered controversial and to chronicle issues relating to freedom of speech in Canada.

[57] Mr. Lemire stated that he did not think that this website would harm his reputation. He did acknowledge, though, that, if an employer looked at his involvement with a white supremacy movement, “it might cause some trouble” and that his past activities, to some extent, could harm his ability to secure employment.

[58] Mr. Lemire disputed the accuracy of the statements in the Craggs article and, in particular, her references to him having been the last leader of the HF and that he had a close relationship with Paul Fromm, a known white supremacist. He did, however, acknowledge that the Federal Court had referred to him as a leader of the HF, as did others. One such person was Gerry Lincoln, who posted an article in March 2001 on the freedomsite.org website hosted by Mr. Lemire, in which he identified Mr. Lemire as having assumed the role of “head honcho” of the HF.

[59] Mr. Lemire acknowledged that articles from the HF were “part of” the freedomsite.org website and that he would put up “press releases and things like that” sent to him by the HF “so people could see it”.

[60] Mr. Lemire states that his understanding is that the HF became defunct upon the death of Droege, who was murdered in 2005. Mr. Lemire states that he rejects certain parts of the HF philosophy, such as, for example, the HF’s desire to have a white enclave in Canada.

[61] In his affidavit, Mr. Lemire states that his involvement in the HF dated back to when he was a “teenager” and that he rejected the HF years prior to 2015. Those statements were shaken on cross-examination.

[62] On cross-examination Mr. Lemire acknowledged that

i) he never publicly rejected the HF, but sometime prior to the 2005 death of Droege, he determined to have nothing more to do with the HF;

ii) in 2008, Mr. Lemire appeared on the Ezra Levant show, at which time he denied being a Nazi;

iii) his last involvement with the HF might have been in 2005 when he was 30 years of age;

iv) his specific interest at that time was surrounding immigration to Canada and what was then known as “employment equity/affirmative action”, and that he was opposed to “racialized hiring by governmental entities”;

v) he disputes Mr. Burley’s assertion that, while employed by the City, he used his website to promote hatred or the HF, and that, between 2003 and 2014, during the course of the Tribunal proceeding and subsequent Federal Court proceedings, he used his website largely to chronicle the proceedings and to provide a repository of Tribunal decisions which were not then available online;

vi) while he did at one time follow the HF “as a teenager”, he never acted as its president or leader, he no longer shares any of the organizations views or opinions, and he was not involved with the HF at any time while employed by the City;

vii) he publicly denounced the HF and his prior affiliations with that group in his emails to Craggs and to CHCH television, asserting, in part, that he had never been the president or last known leader of the HF and that he rejects what the HF stands for;

viii) he did have a past involvement with the HF and with persons associated with it, including Zündel, and Droege, a former leader of the HF;

ix) in a post on stormfront.org dated April 13, 2005 (after Mr. Droege’s death), Mr. Lemire described Droege as “a close and personal friend…a great mentor and friend and leader of our movement”; and

x) he was involved in hosting websites on which materials were posted by the HF and others who expressed racist, anti-Semitic, and homophobic views.

Damages: Past and Future

[63] By affidavit and in oral argument on this motion, Mr. Lemire expressed concern that, while Mr. Burley’s Twitter profile may now be set to “private” or “protected”, Mr. Burley’s posts have not been removed from his Twitter account and are still accessible by Mr. Burley’s followers, who could capture images of the tweets and share them.

[64] Mr. Lemire asserts that he has suffered significant damages because of Mr. Burley’s alleged “defamatory campaign” which, Mr. Lemire claims, directly resulted in the termination of his employment with the City. Mr. Lemire asserts that, in his Twitter posts, Mr. Burley actively called for Mr. Lemire to be “un-hired” from his position with the City and that his contract be terminated. Mr. Lemire asserts that Mr. Burley acknowledged his role in the termination of Mr. Lemire’s employment by the City in his Twitter post of August 16, 2009, in which Mr. Burley states “Love you #HamOnt, this is one small step. There is and will be more. If I have been of service, I assure you the pleasure was and is all mine”.

[65] Mr. Lemire states that he has been unable to obtain employment at a remuneration comparable to that he had with the City. In February 2020, he claims that he was forced to accept an entry-level tech-support job at a lower salary and, while Mr. Lemire suffered no income loss to December 2020, from and after January 2021, he has and will continue to suffer income loss. Mr. Lemire asserts that, because of Mr. Burley’s expressions and the untrue content about Mr. Lemire published online, which Mr. Burley helped promote, Mr. Lemire has and will continue to suffer damage to his reputation.

[66] Mr. Lemire asserts that Mr. Burley describes himself as “antifa” – shorthand for anti-fascist – and that Mr. Burley has publicly condoned violence as antifascist groups have become more violent toward people they label as fascists or Nazis. For those reasons, Mr. Lemire claims that he now fears for his safety and that of his family “should members of these groups, fueled by the defendant’s tweets, decide to target me or my family”.

Discussion: The Evidentiary Record

[67] The evidence on this motion makes reference to ample public statements and judicial findings about Mr. Lemire’s involvement with the HF, Zündel, and Droege, and his engagement in websites that published the views expressed by those actors. That evidence is amplified by Mr. Lemire’s own admissions concerning that history. For example, in cross-examination, Mr. Lemire acknowledged his “dated interest” in certain internet chat groups that talked about “Neo-Nazi type stuff”, and his former websites: freedomsite, stormfront and Zundelsite.

[68] Mr. Lemire acknowledges that, long before Mr. Burley’s tweets, the allegations that Mr. Lemire was a neo-Nazi and connected to the HF and its associates was already available on the internet and in the media, and that those publications remain.

[69] Mr. Lemire asserts that his involvement with the aforementioned groups and persons has been exaggerated and overblown, and occurred prior to his employment with the City. However, Mr. Lemire’s own admissions conflict with that assertion. For example, Mr. Lemire’s eulogy of Droege was in 2005, after he began his employment with the City. In addition, Mr. Lemire continued to host freedomsite.org and posted articles on its message boards, such as those listed to at para. 14 of these reasons.

[70] Mr. Lemire asks the court to disregard the findings and conclusions about him reached in Zündel No.1, Zündel No. 2 and Warman on the basis that s. 13 of the CHRA was subsequently repealed, the Security Certificates under which Zündel was prosecuted were found to be unconstitutional, and Mr. Lemire had no opportunity to participate in those proceedings.

[71] Mr. Lemire asserts that his involvement with the HF and its known associates and advocates ended long ago, whereas Mr. Burley’s postings suggested that Mr. Lemire is still involved with the HF or, alternatively, that he still seeks to promote an anti-immigration, white supremacist and homophobic agenda.

[72] Mr. Lemire says that Mr. Burley’s posts go beyond what was already in the public sphere. For example, Mr. Burley alleges that Mr. Lemire was violent, a national security threat, infiltrated the City’s computer IT department for nefarious purposes and was unqualified for his employment with the City, with whom he was not honest, and that he took advantage of his security access to advance the objectives of the HF or similar organizations.

[73] Mr. Lemire asserts that the Memo and Mr. Burley’s Twitter postings cost Mr. Lemire his job with the City and has made it impossible for him to obtain comparable replacement employment. He asserts that his past ties with the HF are not the problem – rather, it is Mr. Burley’s allegations of Mr. Lemire’s dishonesty, lack of job qualifications and misuse of information available to him by reason of his position with the City that have caused Mr. Lemire harm.

[74] Mr. Lemire seeks to move on with his life and asserts that Mr. Burley’s postings, which are now private, but could at any time in the future be again made public, creates a “real risk” that Mr. Lemire’s past may again be put into a public light.

[75] In oral submissions, Mr. Lemire’s counsel candidly submitted that Mr. Lemire is trying to erase his past, an objective consistent with the relief he is seeking to remove all mention of his past from the internet.

[76] For his part, Mr. Burley acknowledges that his postings were “provocative”. However, Mr. Burley states that his goal was to criticize the City, which either failed to investigate Mr. Lemire before hiring him, hired Mr. Lemire and kept him on as an employee notwithstanding Mr. Lemire’s publicly known activities, or hired Mr. Lemire because of his experience with the far-right.

[77] Mr. Burley acknowledges that, as a member of the LGBTQ community, he had a personal concern over the City hiring someone with Mr. Lemire’s alleged homophobic viewpoint. His position, however, is that his expressions have always been as a political activist and someone with a history of activism in municipal politics.

[78] Mr. Burley submits that Mr. Lemire’s claim against him is being used as a tool to deter Mr. Burley and other individuals from participating in public affairs. Mr. Burley further submits that the media (for example, the CBC, the Hamilton Spectator and VICE), as well public figures (such as Matthew Green), also published articles and tweets that Mr. Lemire claims were defamatory and untrue. Yet, Mr. Burley notes that Mr. Lemire has chosen to target only Mr. Burley and not the media or others who are better funded and better able to respond to Mr. Lemire’s claim. This, according to Mr. Burley, supports his position that this claim is precisely the type of claim that is intended to be caught by the anti-SLAPP legislation set out in s. 137.1 of the CJA.

The Law

[79] The law and analysis set out below respecting the application of s. 137.1 of the CJA is drawn principally from the two Supreme Court of Canada decisions released in September 2020: Pointes, and Bent v. Platnick, 2020 SCC 23, 449 D.L.R. (4th) 45.

[80] Section 137.1 places an initial burden on the moving party to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. If that burden is met, then the onus shifts to the responding party to satisfy the motion judge that there are grounds to believe the proceeding has substantial merit, that the moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If the responding party cannot satisfy that onus, then the motion will be granted and the underlying proceeding will be dismissed: see Pointes, at para. 18

Threshold burden to be met

[81] Section 137.1 (4) provides as follows:

(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. 2015, c. 23, s. 3.

[82] At the outset of the hearing, counsel for Mr. Lemire acknowledged that his claim against Mr. Burley arises from expressions made by Mr. Burley that relate to a matter of public interest. Accordingly, that initial threshold was met and the onus then shifted to Mr. Lemire to show that his proceeding should not be dismissed.

A. Are there grounds to believe the proceeding has substantial merit?

[83] Generally, as there is only a limited record before the court on motions under s. 137.1, a motion under s.137.1 must be distinguished from a motion to strike pleadings on which there is no evidence and a motion for summary judgment which permits a fuller record.

[84] In assessing whether Mr. Lemire has satisfied the court that there are grounds to believe that his proceeding has substantial merit and that Mr. Burley has no valid defence, the court must be aware of, and take into consideration, the limited record, the timing of the motion in the litigation process, and the potential that future evidence will arise.

[85] In this case, the motion was brought prior to the delivery of a defence and examinations for discovery. Despite that, the parties have put forth a fairly substantial record. It consists of affidavit evidence and cross-examinations on the affidavits. While it has its limits, I find the record to be ample for the purposes of this motion. In particular, I find that the record provides a basis in fact and in law to support a determination of whether Mr. Lemire’s claim has substantial merit and whether Mr. Burley has no valid defence to it.

Has the plaintiff shown that his proceeding has substantial merit?

[86] As explained by Cote J. in Pointes, to have “substantial merit”, the proceeding must, at a minimum, be neither “frivolous”, nor a claim with only “technical” validity. Thus, based on the record before it on this motion, Mr. Lemire must satisfy the court that his claim has a “real prospect of success” and, taking into account the stage of the proceeding, that his claim is legally tenable and supported by evidence that is reasonably capable of belief: see Pointes, at paras. 47–49.

[87] In other words, Mr. Lemire must put forth evidence that is reasonably capable of belief and is sufficient to satisfy the court that the success of his claim is more than a possibility or an arguable case. In assessing whether Mr. Lemire has met this part of the test, I am permitted to engage in “only limited weighing of the evidence and should defer ultimate assessments of credibility and other questions requiring a deep dive into the evidence to a later stage”. While I may not accept the evidence “at face value or that bald allegations are sufficient”, I may engage in “limited weighing and assessment of the evidence adduced.” Section 137.1(4)(a)(i) is “not an adjudication of the merits” of the proceeding: see Pointes at paras. 50–51.

[88] Mr. Lemire’s claim is based on his allegation that Mr. Burley defamed him.

[89] In a defamation action, the plaintiff is required to prove three things:

1. that the impugned words were defamatory in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

2. that the words did, in fact, refer to the plaintiff; and

3. that the words communicated to at least one person other than the plaintiff.

See Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.

[90] Based on the record before me on this motion, and for the reasons that follow, I am satisfied that Mr. Lemire has met this test.

Were Mr. Burley’s expressions defamatory?

[91] Among other things, in his tweets, Mr. Burley has identified Mr. Lemire as racist; the former leader of a neo-Nazi organization; anti-Semitic; homophobic; a national security threat; and unqualified for his employment, which Mr. Burley said Mr. Lemire used for improper and nefarious goals.

[92] While Mr. Burley submits that, prior to his posts, Mr. Lemire already had a public reputation as a neo-Nazi, racist, anti-Semite, and homophobe, Mr. Lemire asserts that Mr. Burley’s expressions go beyond Mr. Lemire’s public reputation when, for example, he alleges that Mr. Lemire was unqualified for his employment, may have taken advantage of his position with the City to advance improper and nefarious objectives, and that Mr. Lemire promoted violence.

[93] I conclude that the words used by Mr. Burley to describe Mr. Lemire are, on their face, defamatory, in that they would tend to lower Mr. Lemire’s reputation in the eyes of a reasonable person.

[94] There is no dispute that the words used were intended to, and did, refer to Mr. Lemire and were communicated to at least one person other than Mr. Lemire.

[95] On this basis, I am satisfied that Mr. Lemire has established that his defamation claim is neither frivolous, nor only technically valid. In addition, before considering any defences available to Mr. Burley, I find that Mr. Lemire’s claim is legally tenable and supported by evidence that is reasonably capable of belief and has a real prospect of success.

Has Mr. Lemire shown that Mr. Burley has no valid defence to the claim?

[96] As set out in Pointes, at paras. 58–59, in a defamation action, once the claim is made out, the burden shifts to the defendant to identify any affirmative defences. If the defendant has put forth any defence that is valid, then the plaintiff will not have met his burden and the underlying claim must be dismissed. Accordingly, as part of the court’s overall assessment under s. 137.1 (4)(a), I must assess the strength of Mr. Lemire’s claim and of any defences available to Mr. Burley.

[97] In Pointes, at para. 59, the Supreme Court stated that the motions judge

must then determine whether the plaintiff has shown that the defence, or 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. In other words, “substantial merit” and “no valid defence” should be seen as constituent parts of an overall assessment of the prospect of success of the underlying claim.

[98] As stated by the court in Pointes, at para. 60, the defendant must put potential defences in play and the plaintiff must show that none of those defences are valid in order to meet its burden. The statutory burden upon the plaintiff is to show “that there are grounds to believe that the defences have no real prospect of success”, which “makes sense as s. 137.1(4)(a) as a whole is fundamentally concerned with the strength of the underlying proceeding”.

Defences raised by Mr. Burley

[99] Mr. Burley has raised the defences of fair comment, qualified privilege, and justification.

Qualified privilege

[100] I deal with this defence first as it relates only to the Memo provided by Mr. Burley to the City. I accept Mr. Burley’s submissions that, in providing the Memo to the City, he had a “personal, social and civic interest” in doing so, in that he perceived Mr. Lemire’s employment with the City to be a safety risk to its citizens, including himself, and that the City had a corresponding “civil and civic interest in receiving” the Memo, concerning one of its employees: see RTC Engineering Consultants Ltd. v. Ontario (2002), 2002 CanLII 14179 (ON CA), 58 O.R. (3d) 726 (C.A.), at para. 16.

[101] However, I further find that when Mr. Burley published a portion of this Memo, he lost the protection of the defence of qualified privilege with respect to that portion of the memo: see Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at paras. 149–150.

[102] I have considered Mr. Lemire’s submissions that privilege was lost on the entirety of the Memo because Mr. Burley’s dominant motive for publishing the Memo – and his other expressions – was actual or express malice. I do not accept that submission. I find that Mr. Lemire has not met his onus to support those submissions with evidence that is reasonably capable of belief. As will be addressed in greater depth below, I conclude that Mr. Burley’s expressions were not motivated by malice, spite or ill-will, or by any purpose ulterior to his desire to hold the City accountable for its hiring of a person with publicized associations with organizations and persons whose views and ideologies appeared to conflict with the City’s stated ethics and principles.

[103] While Mr. Burley acknowledges that his comments were “provocative”, he defends his expressions on the basis that they were based on truth, and subject to qualified privilege and/or “fair comment”.

Fair Comment

[104] Both parties rely on the law respecting the defence of fair comment set out in Simpson v. Mair, 2008 SCC 40, [2008] 2 S.C.R. 420. At para. 1, Binnie J. adopts the five-part test for of the defence of “fair comment” formulated by Dickson J. (as he then was) in Chernesky v. Armadale Publishers Ltd. (1978), 1978 CanLII 20 (SCC), [1979] 1 SCR 1067, at pp.1099–1100 (dissenting):

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 recognisable as comment;

d) the comment must satisfy the following objective test: could any man 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 actuated by express malice.

[Emphasis in original removed].

[105] Mr. Lemire has the onus to show that the defence of fair comment is not legally tenable or supported by evidence that is reasonably capable of belief such that it can be said to have no real prospect of success. Whether Mr. Lemire has met that onus is at the center of my consideration of each part of the five-part test discussed below.

Part (a): Were the comments on a matter of public interest?

[106] As Mr. Lemire conceded at the outset of the hearing that the comments made by Mr. Burley are in respect of a matter of public interest, this part has been met.

Part (b): Were Mr. Burley’s comments based on fact?

[107] The record before me offers evidence that much of what was said by Mr. Burley is based on fact.

[108] I will specifically address comments made by Mr. Burley relating to Mr. Lemire’s employment, that Mr. Lemire asserts are not based on fact and are untrue.

[109] Mr. Lemire takes particular issue with certain tweets of Mr. Burley that, he claims, allege the following:

i) that Mr. Lemire is a terrorist, neo-Nazi or “race-hate propagandist because of his ties to the HF, and that Mr. Lemire is inclined to perform terrorist acts perpetrated by such groups as the Aum Shinrikyo. Mr. Lemire identifies examples offending tweets, such as the tweets dated August 16, 2019, which read “This person had no credentials for the position he occupied EXCEPT for his work for the Nazis” and “Before he was hired here his employment background was (in his own words) working at McDonalds, very briefly trying to infiltrate the armed forces, and doing a ton of racist Nazi shit”; and

ii) that Mr. Lemire stole City communications for terrorist groups and lied about his job qualifications.

[110] Mr. Burley’s tweets referenced in (i), above, find have some support in the evidence. Mr. Burley specifically referenced Mr. Lemire’s employment history at McDonalds and in the military as taken from Mr. Lemire’s personal webpage, a copy of which is in evidence. With respect to Mr. Lemire’s racist attitudes and activities, there is ample evidence to support that assertion.

[111] Mr. Lemire’s allegation that he “stole” City communications is not clearly supported by the evidence. Read as a whole, Mr. Burley’s tweets on that issue are directed toward the City, who placed Mr. Lemire in a position with the City that gave him access to sensitive information – acknowledged by Mr. Lemire in answer to an undertaking.

[112] The focus and thrust of Mr. Burley’s tweets is criticism of the City, which, he asserts,

i) engaged in a “cover-up” in hiring Mr. Lemire;

ii) wanted to hire and employ a hate propagandist as a manager;

iii) deliberately harbours Nazis in their midst;

iv) has a new hate crimes policy that would give surveillance information on activists at public gatherings to the HF’s last known leader, Mr. Lemire;

v) authorizes Mr. Lemire to spy on political gatherings and allows him to obtain similar information from the police; and

vi) “planted a Nazi national security threat in the middle of their security department”.

[113] I am satisfied that the evidence put forth on this motion provides a factual underpinning for Mr. Burley’s tweets. Certainly, Mr. Burley added his own views to the facts. Whether those statements were recognizable as “comment” will be addressed below.

[114] I conclude that there is evidence that is reasonably capable of belief such that Mr. Burley’s defence cannot be said to have no real prospect of success on the basis that it fails to meet the test under part (b).

Part (c): Were Mr. Burley’s expressions recognizable as comment?

[115] Mr. Burley asserts that his expressions, including those to which Mr. Lemire takes particular offence, are clearly recognizable as “comment”. Mr. Burley states that, for example, “no reasonable person would conclude that Mr. Burley was saying that Mr. Lemire was a “Japanese terrorist”.

What constitutes “comment” in the context of a defamation claim?

[116] In Simpson, at para. 28, the Supreme Court adopts the New Brunswick Court of Appeal’s definition of “comment” from Ross v. N.B.T.A., 2001 NBCA 62, 201 D.L.R. (4th) 75, at para. 56, which includes the following types statements: “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof.” The Supreme Court then elaborates further:

[28] … Brown’s Law of Defamation in Canada (2nd ed. (loose-leaf)) cites ample authority for the proposition that words that may appear to be statements of fact may, in pith and substance, be properly construed as comment. This is particularly so in an editorial context where loose, figurative or hyperbolic language is used (Brown, vol. 4, at p. 27-317) in that “comment” includes a “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof.” Brown’s Law of Defamation in Canada (2nd ed. (loose-leaf)) cites ample authority for the proposition that words that may appear to be statements of fact may, in pith and substance, be properly construed as comment. This is particularly so in an editorial context where loose, figurative or hyperbolic language is used (Brown, vol. 4, at p. 27-317) in the context of political, commentary, media campaigns and public discourse. See also, R. D. McConchie and D. A. Potts, Canadian Libel and Slander Actions (2004), at p. 340.

[117] Mr. Lemire submits that Mr. Burley’s comments could not be viewed as comment, as the tweets are expressed as fact, not opinion. For example, Mr. Lemire asserts that Mr. Burley tweeted that Mr. Lemire did steal City communications for terrorist groups. I see the evidence differently and view Mr. Burley’s comments to be directed at the conduct of the City that has created a risk to its citizens by proving access to sensitive information and communications to someone whose background conflicts with the City’s stated ethics and ideals.

[118] Mr. Lemire further asserts that, even if Mr. Burley’s statements could be viewed as comment, because Mr. Burley repeated his allegation of Mr. Lemire’s association with the HF after Mr. Lemire expressly disavowed his support for that organization, the defence of fair comment is not available: see Lascaris v. B’nai Brith Canada, 2019 ONCA 163, 144 O.R. (3d) 211, at para. 34.

[119] The evidence on this motion does not clearly support Mr. Lemire’s submission that he disavowed his support for the HF. In cross-examination, Mr. Lemire clarified that he disavowed support for some of the HF’s stated objectives. Also, while Mr. Lemire asserted that his connections to the HF were dated and related to his teenage years, in cross-examination, Mr. Lemire acknowledged that his connection to the HF extended to the age of 30 years. As noted above, in 2005, Mr. Lemire publicly expressed his admiration for Droege, a former HF leader, who he identified as the leader of “our” organization. Mr. Lemire also acknowledged that he continued to host the freedomsite.org website until 2019.

[120] It bears repeating that, on this motion, I cannot and do not make definitive factual findings. Rather, I may assess only whether Mr. Lemire has shown that Mr. Burley’s defence or defences are not supported by evidence such that they can be said to “have no real prospect of success”.

Mr. Burley’s postings in context

[121] The media articles referenced earlier in these reasons offer some context to Mr. Burley’s Twitter postings, the first of which was made in response to the VICE article. The record provides evidence that Mr. Burley’s subsequent posts were responding or adding to the opinions already expressed by others concerning the risk to the safety and security of the citizens of Hamilton by the City, who gave access to sensitive City information to someone with Mr. Lemire’s background and history.

[122] The public and media expressions provide only a partial context. To better understand the evidence that supports this aspect of Mr. Burley’s defence, I also consider the evidence of Mr. Burley’s reputation as a local activist concerning City politics and as a member of and advocate for the LGBTQ community, a particularly vulnerable group, which further supports his assertion that his comments would be recognized as expressions of opinion.

[123] By way of example, I am satisfied on the evidence that Mr. Burley’s expressions with respect to the Aum Shinriykio are recognizable as comment and that publicly promoted expressions of intolerance can, in some cases, encourage others to act with violence and not that Mr. Lemire was part of that terrorist cell, or plotting a murderous act.

[124] I conclude that Mr. Lemire has not met his onus: he has not shown that Mr. Burley’s defence of fair comment has no real prospect of success because it fails to satisfy part (c) of the test.

Part (d): Could any person honestly express that opinion on the proved facts?

[125] I find that the evidence on the record before me supports this element of the defence.

[126] At the time Mr. Burley posted his comments concerning the potential safety and security risk posed by the City in employing Mr. Lemire in the City’s IT department, the facts known to him, detailed above, were such that any person could honestly express a similar opinion. Indeed, that very opinion was made by former City Councilor, Matthew Green.

[127] On the record before me, including admissions made by Mr. Lemire, there is an abundance of evidence connecting Mr. Lemire with organizations, persons and websites that expressed views that could be described as racist, anti-immigration, homophobic, and liable to promote violence.

[128] With respect to Mr. Burley’s comments respecting Mr. Lemire and hate propagandists and violence, Mr. Lemire makes the point that the Zündel decisions were made under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and that, in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, the Supreme Court of Canada held that the processes under which Zündel was prosecuted violated the Charter of Rights and Freedoms. Mr. Lemire also points out that he was not given the chance to participate in the Zündel hearings. While I have considered Mr. Lemire’s submissions that the conclusions reached by the Tribunal may have been based on improperly obtained or incomplete evidence, that is an issue that I cannot properly determine on the record before me.

[129] On this motion, it is not the role of the court to determine the merits of the claim. I do not rely on the Tribunal’s findings in Zündel No. 2 and make factual findings that there is, or may be, a connection between the verbal expression of the views espoused by Zündel and the HF, and the potential for violent expression of intolerance that such views condone.

[130] On this motion, the court’s task is to determine whether Mr. Lemire has shown that this part (part (d)) of Mr. Burley’s defence of fair comment is not legally tenable or supported by evidence that is reasonably capable of belief such that the defence has no real prospect of success. On the record before me, I conclude that Mr. Lemire has not satisfied me that he has met that onus.

Part (e): Were Mr. Burley’s comments actuated by express malice?

[131] The last element of the five-part test for the fair comment defence is that the defence must be defeated if the plaintiff proves that the defendant was “[subjectively] actuated by express malice”.

[132] Mr. Burley denies any malice toward Mr. Lemire. He asserts that, as a local municipal activist, his focus was on the conduct of the City. Mr. Burley’s postings clearly have their primary focus on the conduct of the City, whose hiring of someone with Mr. Lemire’s background conflicted with both the “culture, values and beliefs” of the City and the call of the City’s Mayor to its citizens “to stand up against prejudice, exclusion and discrimination based on ethnicity, race, religion, country of origin, disability, sexual orientation or other differences.”

[133] It is understandable that Mr. Lemire might conclude that Mr. Burley’s expressions were motivated by malice directed toward him: one of Mr. Burley’s stated objectives was that Mr. Lemire be “un-hired”. However, the evidence supports Mr. Burley’s submission that this objective was not motivated by ill-will directed to Mr. Lemire, but by his call to the City to conduct itself with integrity.

[134] I have considered the record, referenced in some detail throughout these reasons, and conclude that Mr. Lemire has failed to show that Mr. Burley’s defence of fair comment is not legally tenable or supported by evidence that is reasonably capable of belief, on the basis that Mr. Burley’s comments were motivated by malice or ill-will.

Defence of Justification

[135] Mr. Burley has also raised the defence of justification. For that defence to succeed, Mr. Burley must adduce evidence showing that his statements were substantially true. He must “prove the substantial truth of the “sting”, or the main thrust, of the defamation”: see Bent v. Platnick, at para. 107.

[136] As I have noted throughout these reasons, the “sting” or main thrust of Mr. Burley’s defamatory comments is that the City, whose Mayor invites its citizens to “stand up against prejudice, exclusion and discrimination”, hired someone to work in its IT department who had a lengthy and public association with persons and groups whose values conflict with the City’s expressed values.

[137] As discussed above, the evidence on this motion provides an ample factual basis for Mr. Burley’s statements. Quite apart from the information known to Mr. Burley when he made his tweets, the public reason given by the City for ending its relationship with Mr. Lemire – that Mr. Lemire’s “off-duty activities and associations did not reflect the culture, values and beliefs of the City” – also provides evidence that supports the substantial truth of Mr. Burley’s comments.

[138] As stated in Pointes, at para.58, the court must be careful not to treat a motion under s. 137.1 as a motion for summary judgment and, in assessing whether a defence is valid, the court must recognize the limitations of the record available on the motion, but yet engage in a “limited assessment of the evidence”.

[139] Based on the record before me, the foregoing reasons, and my “limited assessment of the evidence”, I conclude that Mr. Lemire has not shown that Mr. Burley’s defence of justification is not legally tenable or supported by evidence that is reasonably capable of belief such that it can be said to have no real prospect of success.

[140] For the reasons set out above, I find that the plaintiff has failed to meet the onus upon him under section 137.1 (4)(a)(ii). On this basis alone, I would grant Mr. Burley’s motion.

Section 137.1(4)(b) – The public interest hurdle: the crux of the analysis.

[141] As set out below, I also find that Mr. Lemire has failed to meet the onus set out under s.137.1(4) (b), which requires Mr. Lemire to satisfy the court that

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.

Harm Analysis

[142] Pointes, at paras. 67–68, sets out that, at this stage of the analysis, for Mr. Lemire to meet his burden under s. 137.1(4)(b), he must show (i) that he has suffered harm; and (ii) that the harm was suffered as a result of Mr. Lemire’s expressions.

[143] Harm is not limited to monetary harm and can include damage to reputation. Similarly, there is no minimum threshold to be met by the plaintiff in establishing harm, but the magnitude of the harm is relevant for a determination if the harm is sufficiently serious such that it outweighs the public interest in protecting the expression.

[144] Mr. Lemire is not required to prove harm or causation, but is required to provide evidence upon which the court can draw an inference of likelihood of the existence of the harm and the relevant causal link. In a defamation action, such as this one, harm is presumed. The plaintiff is still required to support his claim for special damages, but the court is not required to make a definitive determination of harm or causation: see Pointes, at paras. 69–71.

[145] In this case, there are many potential causes of the harm that Mr. Lemire claims to have suffered. For that reason, he faces a significant challenge in establishing the seriousness of the harm that may be causally linked to Mr. Burley’s expressions.

[146] Mr. Lemire asserts the loss of his job with the City in causally connected to Mr. Burley’s expressions. On the record before me, that assertion is far from evident. In its own statements, the City stated that the concerns raised about Mr. Lemire’s employment by the City were serious. It conducted two investigations into Mr. Lemire’s conduct as a City employee and into his extracurricular involvements.

[147] On this motion, the information concerning Mr. Lemire’s employment with the City is limited. In part, that is because Mr. Lemire is restricted in what he may disclose surrounding the end of his employment with the City.

[148] In its public statement of August 19, 2016, announcing that the City and Mr. Lemire were parting ways, the City reassured its constituents that Mr. Lemire had not taken advantage of his position in the City’s IT department to improperly access or use sensitive information. The City also provided a letter of recommendation to Mr. Lemire at the end of his employment.

[149] Based on the record, I find that Mr. Lemire has not shown that there is evidence that is reasonably capable of belief from which the court might draw an inference that there is a causal link between the loss of his employment with the City and any comments made by Mr. Burley. It was the City, not Mr. Burley, who determined to end its relationship with Mr. Lemire following the City’s own investigations.

[150] I reach the same conclusion with respect to Mr. Lemire’s assertion that Mr. Burley’s expressions have harmed Mr. Lemire’s ability to secure new employment comparable to what he had with the City. Within months, Mr. Lemire was able to secure a new job, albeit at a salary less than what he was earning with the City. However, he has put forth no evidence upon which the court might infer that the reason that he was unable to secure employment with a salary and benefits equal to what he was earning with the City had anything to do with what Mr. Burley might have said about him.

[151] Mr. Lemire has also suggested that Mr. Burley’s comments have created safety concerns for Mr. Lemire and members of his family. Mr. Lemire’s evidence on this issue is vague and speculative, and insufficient for the court to infer that Mr. Lemire has a real concern for his safety by reason of anything Mr. Burley has said.

[152] For more than a decade prior to Mr. Burley’s postings, Mr. Lemire’s background had been written about publicly in the media, legal reports, and on the internet. Mr. Lemire’s involvement or alleged involvement with the HF and with persons known to espouse neo-Nazi or white supremacist views had also been in the public eye and domain for well beyond a decade prior to Mr. Burley’s postings. Indeed, in the name of free speech, Mr. Lemire, himself, has published articles, on a website he hosted, that kept his associations with those entities and persons in the public eye.

[153] From the evidence on this motion, it is reasonable for the court to infer that the views expressed in articles posted on websites hosted by Mr. Lemire have or are likely to have caused harm to Mr. Lemire’s own reputation.

[154] As stated above, there is no evidence that is reasonably capable of belief that might support an inference that there is any causal connection between Mr. Burley’s postings and Mr. Lemire’s claim of a safety risk to Mr. Lemire or his family. Even if there had been such evidence, based on the evidence on this record, it could be inferred that the cause of that safety risk came from any number of sources, including from some of the posts to websites hosted by Mr. Lemire, which might possibly incite a reaction or hostility in a reader who does not share those views.

[155] Mr. Lemire seeks an order that all publications relating to his history be removed, de-indexed, and prevented from ever again being published. It is reasonable to infer, which I do, that this relief is being sought in recognition of the fact that Mr. Lemire’s public presence on the internet as a whole, and not simply postings made by Mr. Burley, is causing him harm. As stated in oral submissions, Mr. Lemire seeks to “erase” his past.

[156] I accept that I do not have all the evidence, and that Mr. Lemire is not required to prove harm or causation, but must simply provide evidence upon which I might draw an inference of likelihood in respect of the existence of the harm and the relevant causal link. I am not required to make a definitive determination of harm or causation of that harm.

[157] With that caveat in mind, I conclude that Mr. Lemire has not met his burden. At best, Mr. Burley’s tweets over the course of approximately four months are merely a drop in the bucket of what has been said about Mr. Lemire for decades. I conclude that Mr. Lemire has failed to provide evidence reasonably capable of belief upon which I could make an inference of the likelihood of the existence of harm and the relevant causal link arising from anything Mr. Burley posted.

[158] As I have concluded that Mr. Lemire has not met his onus on this aspect of s. 137.1(4)(b), my analysis could stop at this point. Notwithstanding, I have determined to proceed with the next step of the analysis, which is to weigh the public interest in allowing Mr. Lemire’s action against Mr. Burley to proceed against the public interest in protecting Mr. Burley’s expression.

Weighing of the Public Interest

[159] The starting point of this analysis is whether the expression relates to a matter of public interest. At the outset of the hearing, that point was properly conceded by Mr. Lemire. However, Mr. Lemire asks the court to consider the quality of the expression and the motivation behind it when determining the public interest in protecting Mr. Burley’s expression. That concern is identified by the Supreme Court in Pointes, at para. 75:

Indeed, “a statement that contains deliberate falsehoods, [or] gratuitous personal attacks… may still be an expression that relates to a matter of public interest. However, the public interest in protecting that speech will be less than would have been the case had the same message been delivered without the lies, [or] vitriol”. [Citation omitted.]

[160] On the one hand, Mr. Burley characterizes his postings as exaggerated and provocative, whereas Mr. Lemire describes them as deliberate falsehoods and vitriol. On this motion, the weighing exercise is to be informed by the core values that underlie freedom of expression: the search for truth, participation in political decision-making, and diversity in forms of self-fulfillment and human flourishing (see Pointes, at para. 77).

[161] At this stage of the analysis, the court may consider such factors as follows: the importance of the expression; the history of litigation between the parties; broader or collateral effects on other expressions on matters of public interest; the potential chilling effect on future expression, either by a party or by others; the defendant’s history of activism or advocacy in the public interest; any disproportionality between the resources used in the lawsuit and the harm caused or the expected damages award; and the possibility that the expression or claim might provoke hostility against an identifiably vulnerable group, or group protected under s. 15 of the Charter or human rights legislation: see Pointes, at para. 80.

[162] As stated at para. 81 of Pointes, on this motion, the court is able to scrutinize what is really going on in the litigation. According to Mr. Burley, what is really going on is that Mr. Lemire is trying to silence Mr. Burley, who Mr. Lemire described as having “gloated online” after being quoted by a local television host as “helping to expose the White Supremacist working at Hamilton city hall”,[^2] while ignoring similar expressions made by so many others, including the media giants and public figures, who are better funded and better able to respond to a lawsuit.

[163] According to Mr. Lemire, what is really going on is that Mr. Burley has targeted Mr. Lemire with expressions and “malicious personal attacks” which, in the future, may again be made public, causing Mr. Lemire harm.

[164] The burden is on Mr. Lemire to show, on a balance of probabilities, that he has or will suffer harm as a result of Mr. Burley’s expressions and that the public interest in allowing the litigation to continue outweighs the harmful effect on expression and public participation.

[165] I do not accept that Mr. Lemire has met his onus. I also find that the harm, if any, suffered by Mr. Lemire from any of Mr. Burley’s expressions and the corresponding public interest in permitting Mr. Lemire’s proceeding to continue is outweighed by the public interest in protecting Mr. Burley’s expression.

[166] There is an important public interest in allowing and encouraging citizens to speak out when it appears that their local government has failed to act in a manner that is in keeping with the City’s stated values and ethics. In this case, the importance of those values was publicly recognized by the City in its public announcement concerning the end of Mr. Lemire’s employment with the City. In his message to the City’s citizens, the City’s mayor also acknowledged the role of each citizen in ensuring that the City adheres to those values.

[167] I conclude that, on a balance of probabilities, Mr. Lemire has failed to satisfy the court that the harm that is likely to be or have been suffered by him as a result of Mr. Burley’s expression is sufficiently serious that the public interest in permitting his proceeding to continue outweighs the public interest in protecting that expression. Rather, I conclude that the public interest in protecting the expressions of Mr. Burley, a known activist and critic of the City, and a member of a vulnerable community not infrequently targeted by discrimination, outweighs the public interest in permitting Mr. Lemire’s proceeding to continue.

Disposition

[168] For the reasons set out above, the motion is granted and the within proceeding is dismissed.

Costs

[169] Pursuant to s. 137.1(7) of the CJA, Mr. Burley is entitled to costs of the motion and of the proceeding on a full indemnity basis unless the court determines that such an award is not appropriate in the circumstances.

[170] If the parties are unable to agree upon costs, they may make arrangements through the Trial Coordinator to schedule a time make oral costs submissions. In that event, in advance of those oral submissions, the parties are to serve and file Bills of Costs, supporting dockets, disbursement receipts, together with copies of any relevant offers to settle.

[171] The above documents, together with any cases upon which the parties intend to rely, may be uploaded through Caselines, but copies are also to be provided to me, via email, through the Trial Coordinator, no less than five days prior to the hearing.

[172] If, within 14 days of the date of release of this decision, the parties have not confirmed that arrangements have been made to set a hearing date, I will assume that they have resolved costs and that no further decision is required from the court.

L. Sheard J.

Released: July 16, 2021

COURT FILE NO.: CV-19-71357

DATE: 2021/07/16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Marc Lemire, Plaintiff and Responding Party

• and –

Craig Burley, Defendant and Moving Party

REASONS FOR DECISION ON MOTION

L. Sheard J.

Released: July 16, 2021

[^1]: Rev’d in part 2012 FC 1162, 76 C.H.R.R. D/308.

[^2]: Lemire Factum, at para. 20, referencing comments made by Laura Babcock on May 14, 2019.