COURT FILE NO.: CV-20-652362

DATE: 20211025

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sikhs for Justice, Plaintiff

AND:

The Macdonald-Laurier Institute and Terry Milewski, Defendants

BEFORE: W.D. Black J.

COUNSEL: Louis Century and Melanie Anderson, for the Plaintiff

Tudor Carsten and Ahmed Kamel, for the Defendants

HEARD: September 1, 2021

ENDORSEMENT

[1] This is a motion by the defendants to strike the plaintiff’s claim (the “Claim”) as a strategic lawsuit against public participation (a “SLAPP suit”) pursuant to s. 137.1 of the Courts of Justice Act (“CJA”).

Overview

[2] The Claim sought to be struck arises from an article (the “Article”) entitled “Khalistan: A Project of Pakistan”, written by the defendant Terry Milewski (“Milewski”), a retired CBC journalist, and published by the defendant, The Macdonald-Laurier Institute (“MLI”), a public policy think tank. The Article discusses the movement for an independent Sikh state within India, called “Khalistan”.

[3] The Article was published on September 9, 2020.

[4] While the precise propositions contained in the Article, and whether those propositions are in the nature of fact or opinion are very much at issue, it is fair to observe that, on its face, the Article states (and its title confirms), that the campaign for an independent Sikh state of Khalistan, and, specifically, that the international referendum campaign organized by the plaintiff organization Sikhs for Justice (“SFJ”), is a project of Pakistan. SFJ alleges that the Article also explicitly or implicitly says that the SFJ is influenced or controlled by Pakistan; that its referendum campaign is being driven by Pakistan; that SFJ serves and speaks for Pakistan rather than for Sikh people; and that Pakistan is SFJ’s patron and sets limits on its campaign. SFJ maintains that these claims are untrue and were made by the defendants without factual or evidentiary support. This contention is the basis of the Claim.

[5] SFJ served MLI and Milewski with a Notice of Libel on October 15, 2020. On November 10, 2020, MLI and Milewski responded that they would not be removing any part of the Article and would not issue an apology. The Claim was issued on December 1, 2020 and the Statement of Defence was filed on February 18, 2021.

Sikhs for Justice and the Claim

[6] SFJ is a not‑for‑profit organization which advocates for the right of Sikh people to self‑determination. In the context of this mandate, SFJ’s primary project is the organization and promotion of Referendum 2020, an international referendum to gauge the level of support of Sikh people around the world for the creation of an independent Sikh state of Khalistan.

[7] SFJ alleges in its Claim and in its response to this motion that, by minimizing its role in pursuing the referendum and by alleging that it is Pakistan and not SFJ that is behind the referendum, the Article undermines the very heart of SFJ’s mandate and reason for being, and thus irretrievably damages SFJ and its efforts.

[8] While this does not impact on my determination, Referendum 2020, which as the name suggests was intended to proceed in 2020, has been delayed by the global pandemic and has not yet occurred. There was no evidence before me concerning currently anticipated timing for the referendum, but the materials indicate that activities in relation to the referendum are ongoing around the world, including in Ontario.

Section 137.1 of the Courts of Justice Act and SLAPP Motions

[9] Before reviewing certain aspects of the Article, it is important to set out what is (and is not) to be decided in the context of a SLAPP suit motion.

[10] Under s. 137.1(3) of the CJA, the court must be satisfied on this type of motion that the proceeding arises from an expression made by a person that relates to a matter of public interest. All parties (and I), agree that that is the case here.

[11] That threshold having been met, I must then consider s. 137.1(4). That subsection provides (in s. 137.1(4)(a)) that a judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that there are grounds to believe that:

(i) The proceeding has substantial merit; and

(ii) The moving party has no valid defence in the proceedings; 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.

[12] All parties agree, consistent with the relevant authorities, that the court must assess the ordinary meaning of the words in the Article. To that effect, Raymond E. Brown, Brown on Defamation: Canadian, United Kingdom, Australia, New Zealand, United States, 2nd ed. (Toronto: Thomson Reuters, 2019), at ch. 5 says:

Words will generally be given their ordinary meaning unless they have some special, technical or colloquial meaning and would be understood in that sense by those to whom they were published. The defamatory meaning must be one which would be understood by reference to an ordinary and reasonable person and not a meaning by someone who may be naturally inclined to attribute the best or worst meaning to words published about the plaintiff. In determining the meaning to be attributed to the words, the Court will take into consideration all the circumstances of the case including any reasonable implication the words may bear, the context in which the words were spoken, the audience to whom they were published and the manner in which they were presented.

[13] With respect to the analysis of “substantial merit” and “no valid defence” under s. 137.1(4)(a), recent appellate court decisions have provided helpful analysis about the nature of the analysis and depth of dive required.

[14] In Bent v. Platnik, 2020 SCC 23, 449 D.L.R. (4th) 45, the Supreme Court of Canada, in discussing the “grounds to believe” standard, referred to its companion decision in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, and said, at paras. 87-88:

In Pointes Protection, this Court clarifies that unlike s. 137.1(3), which requires a showing on a balance of probabilities, s. 137.1(4)(a) expressly contemplates a “grounds to believe” standard instead: para. 35. This requires a basis in the record and the law – taking into account the stage of the litigation – for finding that the underlying proceeding has substantial merit and that there is no valid defence: para. 39.

I elaborate here that, in effect, this means that any basis in the record and the law will be sufficient. By definition “a basis” will exist if there is a single basis in the record and the law to support a finding of substantial merit and the absence of a valid defence. That basis must of course be legally tenable and reasonably capable of belief. But the “crux of the inquiry” is found, after all, in s. 137.1(4)(b), which also serves as a “robust backstop” for protecting freedom of expression: Pointes Protection, at paras. 48 and 53.

[15] In its recent decision in Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, the Court of Appeal for Ontario, at para. 54, described the “grounds to believe” standard as follows:

“Grounds to believe” means “something more than mere suspicion, but less than…proof on the balance of probabilities”: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; cited with approval in Pointes at para. 40.

[16] So, in undertaking this analysis, and determining whether there are “grounds to believe”, I need not be persuaded on a balance of probabilities. I must, however, possess more than a mere suspicion.

[17] The Court of Appeal in Subway goes on, at paras. 55-57, to further describe the nature of the inquiry at this stage:

Given the early stage of the proceeding, that damage assessment can be an ongoing process, and that such motions are meant to weed out clearly defective claims, there is only a limited assessment of the evidence from the motion judge’s perspective. If the motion record raises serious credibility issues or inferences to be drawn from competing primary facts, the motion judge must avoid taking a “deep dive” into the ultimate merits and instead, engage in a much more limited analysis. [Citations omitted].

A determination that a defence ‘could go either way’ in the sense that a reasonable trier could accept or reject it, is a finding that a reasonable trier could reject the defence. [Citation omitted].

As Cavanaugh J. so aptly put it: ‘Where a trier could reasonably conclude that the defendants did not conduct a sufficiently diligent investigation…a trier could reasonably conclude that the defence of responsible communication would not succeed’: Hamlin v. Kavanaugh, 2019 ONSC 5552, at para. 45.

[18] The case law is clear, then, that I am not to make any determination about the ultimate merits, nor whether the Article is in fact defamatory. Rather, my task is to make a relatively limited high level assessment to “weed out” a claim that is clearly defective. In order to do so, I must consider whether there is sufficient evidence to suggest (beyond mere suspicion but not on a balance of probabilities) that the claim has sufficient merit and that the defences put into play by the defendant are so uncertain that the outcome could, at its highest, “go either way”.

Test for “Substantial Merit”

[19] Starting with the assessment under s. 137(4)(a)(i) – that is, whether or not the Claim has substantial merit – what is required at this stage is to determine if there is a basis which is legally tenable and reasonably capable of belief to support such a conclusion: Bent, at para. 87.

[20] In making this assessment, I must consider what the plaintiff must prove on a balance of probabilities to establish defamation: (1) that the impugned words were defamatory because they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) the words referred to the plaintiff; and (3) the words were communicated to at least one person other than the plaintiff: CUPW v. B’nai Brith Canada et. al, 2020 ONSC 323, at para. 18 (“B’nai Brith (ONSC)”), aff’d 2021 ONCA 529, at para. 31 (“B’nai Brith (ONCA)”).

[21] If these elements are established, then falsity and damages are presumed: B’nai Brith (ONSC), at para. 19.

[22] The plaintiff argues that based on the defendants’ own evidence, the substantial merit test is met. The defendants, says the plaintiff, do not dispute that the SFJ-Pakistan Statements (as defined in the plaintiff’s factum and as set out and discussed below) refer to the plaintiff and were communicated to people other than the plaintiff, and have conceded that they have no reason to believe that SFJ receives any funding or is organizationally connected to Pakistan. Additionally, the plaintiff says that the defendants do not dispute that they have no evidence of Pakistan influence over SFJ. The plaintiff argues that these are effective concessions that the statements are false, and that there is clearly a legally tenable basis to find SFJ’s claim has merit. The plaintiff also notes that in a defamation claim, general damages are presumed from the very publication of a false statement, such that any assessment of harm is irrelevant to the question of whether the proceeding has substantial merit and is better left to the balancing exercise required under s.137(4)(b).

[23] The defendant, in addressing the substantial merit test, cites Pointes, at para. 49 for guidance on interpreting this issue:

[F]or an underlying proceeding to have “substantial merit”, it must have a real prospect of success – in other words, a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff. In context with “grounds to believe” this means that the motion judge needs to be satisfied that there is a basis in the record and the law – taking into account the stage of the proceeding – for drawing such a conclusion. This requires that the claim be legally tenable and supported by evidence that is reasonably capable of belief.

[24] While taking issue with the quality of the evidence offered by the plaintiff on this motion to establish harm, and reserving the right to make an argument in the context of s. 137(4)(b) based on the alleged deficiencies of the plaintiff’s evidence of harm, the defendants concede that in a defamation action harm (and therefore general damages) is presumed.

[25] Nonetheless, having regard to an alleged failure on the part of the plaintiff to lead direct evidence of harm, the defendants point to this court’s decision in Sikhs for Justice v. The Republic of India, 2020 ONSC 2628, in which SFJ failed to lead evidence from affiants with direct knowledge, and rather was found to have presented evidence that was “clearly hearsay” and not reliable. That case, however, was concerned with jurisdictional matters, and so the evidence in question was adduced in relation to those issues.

Impugned Contents of the Article

[26] In terms of the contents of the Article at issue, SFJ lists, at para. 13 of its factum, various statements that it characterizes as “factual claims” and which it defines as the “SFJ-Pakistan Statements”:

(a) “it’s Pakistanis, not Khalistanis, who are driving the campaign” (p. 6);

(b) “it’s clear who’s really driving the Khalistan bus: Pakistan” (p. 19);

(c) SFJ has “undying solidarity with Pakistan” (p. 13);

(d) “extremists animated by Pakistan seek to distort history and betray the vast majority of Sikhs who live in peace and freedom” (pp. 4-5);

(e) SJF does not “speak for the Sikh community. The evidence, instead, suggests that they speak for Pakistan” (p. 17);

(f) Pakistan is SFJ’s “patron” and “sets the limits” on the campaign (p. 17);

(g) “Khalistan: A Project of Pakistan” (Report title).

[27] SFJ denies each of the SFJ-Pakistan Statements.

[28] At paras. 14 and 15 of its factum, SFJ points to various concessions made by Milewski on cross‑examination in relation to these SFJ-Pakistan Statements:

On cross-examination, Milewski conceded a lack of evidence in support of key facts. Milewski conceded that he does not know whether Pakistan is involved in any way in the SFJ referendum campaign. He has no evidence to suggest SFJ is financially supported by Pakistan. He has no evidence of any organizational involvement between Pakistan and SFJ. He does not know if Pakistan is involved or has any influence in SFJ’s Referendum 2020 campaign. He agreed that SFJ has its own agency… As Milewski said on cross‑examination, much of the evidence in the Report regarding Pakistan’s involvement in the Khalistan movement is from well before SFJ existed.

[29] In addition, the plaintiff notes that it is undisputed that Milewski did not contact SFJ for comment before publishing the Report with the SFJ-Pakistan Statements.

[30] In terms of harm to SFJ as a result of the Article, the plaintiff notes that the evidence of harm it led in this motion was uncontested and not cross-examined.

[31] It says that as a nationalist movement advocating for the right of Sikhs to self‑determination, the false claim that it does not represent or speak for Sikhs, and instead is an agent for Pakistan, is incredibly damaging to SFJ, striking at its credibility and ability to undertake its core mandate. The plaintiff notes that Milewski conceded that the allegation that SFJ is complicit with, or an agent of, Pakistan is a serious allegation.

[32] In terms of more specific and quantifiable harm, SFJ also maintains that the Article “undermines the time, effort and money SFJ has put into promoting and encouraging mass participation in Referendum 2020”; undermines “SFJ’s attempts to present the results of Referendum 2020 to the United Nations and other international forums”; that “SFJ has had to cancel a planned virtual conference which it was going to use to fundraise for Referendum 2020, resulting in financial losses”; that “SFJ has been unable to hold its annual fundraiser resulting in further financial losses”; and that “Volunteers have dissociated from SFJ”.

[33] SFJ also points to the response from the Sikh community, stating that “The Sikh community was highly critical of the Report”. As evidence of this response, SFJ cites an open letter published by a group of 56 prominent Sikh scholars from universities across Canada, the U.S. and the world asking the Board of the defendant MLI to “re-evaluate [their] decision to publish such vitriolic content under [their] institute’s name”. The letter also alleges that the Report contains “a litany of conclusory statements and allegations without any substantiation” and “casts wide aspersions on a highly visible, racialized community, engaged in legitimate advocacy”.

Conclusion on “Substantial Merit”

[34] Taking all of this evidence into account, noting the defendants’ (proper) concession that harm is presumed at this stage of the analysis, and following the guidance of various authorities limiting the depth of my dive at this stage, I find that the plaintiff meets the substantial merit threshold in s. 137(4)(a)(i). This is not (and should not be) construed as a finding of defamation on the overall merits of the action. Rather, it is a finding that at this stage, there is a basis in the record and the law to support, on more than mere suspicion but less than the balance of probabilities, that one or more bases of the claim are legally tenable and reasonably capable of belief.

[35] More particularly, given that it is clear that the words at issue, or at least some of them, referred to the plaintiff, and given that it is clear that the words were communicated to at least one person other than the plaintiff, I find in addition (and again at a standard beyond mere suspicion and less than on a balance of probabilities) that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person.

[36] Turning now to s. 137(4)(a)(ii) and the question of the validity of the defence, again, the plaintiff is required to show that there is a basis in the record and the law – given the stage of the proceeding (prior to discoveries) – to support a finding that the defences do not tend to weigh more in the defendants’ favour: Subway, at para. 53. “Grounds to believe” does not mean that the plaintiff must prove on a balance of probabilities that the defences will fail. Rather, a determination that a reasonable trier of fact could accept or reject a defence (i.e., the case could go either way) is sufficient to find that there are grounds to believe that the defendants have no valid defence: Subway, at paras. 54, 56.

[37] The defendants brought this motion on the basis that they have four valid defences. In their factum, and in argument, the defendants advance and rely upon two of those four defences: responsible communication and fair comment.

First Defence: Responsible Communication

[38] The defence of responsible communication on matters of public interest requires two elements to be proven: (a) the impugned statements must be on a matter of public interest; and (b) the publisher must demonstrate that it was reasonably diligent in the steps taken to validate the accuracy of the factual statements.

[39] It is conceded by the plaintiff that the Article relates to a matter of public interest.

[40] The defendants maintain that Milewski has researched and reported on the topic of Khalistan for decades, and based the Article on verified facts and sources, which were also verified by MLI.

[41] In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the Supreme Court of Canada, at para. 126, explained that the defence of responsible communication will apply where the publication is on a matter of public interest and the publisher was diligent in trying to verify the allegation having regard to:

(a) the seriousness of the allegation;

(b) the public importance of the matter;

(c) the urgency of the matter;

(d) the status and reliability of the source;

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

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

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

(h) any other relevant circumstances.

[42] The defendants concede that the allegations in the Article are serious. Beyond that, in this category, the defendants say that Milewski did not seek comment from SFJ “because the Article is not about SFJ – which did not exist for the first 40 years of the Khalistan movement”. They also note that the plaintiff has not challenged the accuracy of quotes in the Article, and that, fundamentally, the Article reflects Milewski’s opinion, and his difference of opinion with SFJ. This distinction between opinion and fact becomes more important and prominent in assessing the “fair comment” defence discussed below.

[43] In the “Responsible Communication on Matters of Public Interest” section of its factum, the plaintiff takes a thorough approach, reviewing each of the parameters provided in the Torstar decision.

[44] Among other observations, during the course of that review, the plaintiff cites Torstar, at para. 111 for the proposition that “the degree of diligence required in verifying the allegation should increase in proportion to the seriousness of its potential effects on the person defamed”. It also highlights Milewski’s concession in cross-examination that the accusation that SFJ speaks for a foreign government is a very serious accusation for a secessionist movement mandated to advocate for Sikh self-determination.

[45] Insofar as urgency is concerned, the plaintiff submits that under this factor, the court asks whether the public’s need to know required the defendants to publish the Report when they did, or if a reasonable delay could have assisted them to find out the truth and correct any defamatory falsehoods without compromising the story’s timeliness: Torstar, at para. 113. Again, in this category, the plaintiff points to Milewski’s concession during cross-examination that he did not remember there being any particular deadline.

[46] In terms of status and reliability of sources, the plaintiff notes that although the defendants cite various sources about the alleged involvement of Pakistan in the Khalistani movement, it is conceded that most of that evidence is not about Pakistani involvement with SFJ and, in fact, predates the existence of SFJ. In respect of those historic sources, the plaintiff submits that by definition they cannot support claims about Pakistani influence over SFJ.

[47] It is a matter of agreement that the only evidence on which the defendants rely in asserting a connection between Pakistan and SFJ is: (a) a letter from Gurpatwant Singh Pannun, an American lawyer who has a leadership role in SFJ; and (b) a map purportedly obtained from SFJ’s Facebook page.

[48] A portion of the Pannun letter is cited by Milewski in support of his statement in the Article that “undying solidarity with Pakistan has become a kind of theme song for the American lawyer, Gurpatwant Singh Pannun, who leads Sikhs For Justice, the driving force in the campaign for a referendum on Sikh independence”. With respect to the letter, the plaintiff argues that it does not in fact support the SFJ‑Pakistan Statements. They say that “the fact that SFJ expressed support to Pakistan in a letter does not mean that Pakistan is the driving force of SFJ or its campaign”. Here again they point to Milewski’s cross-examination, wherein he conceded that the fact that two entities may share a common interest (in opposing India) does not mean one entity is influencing the other. They also stress that Milewski further conceded that he was aware of other communications between Pannun and SFJ in which SFJ has been harshly critical of Pakistan, as well as a recent dispute between SFJ and Pakistan, neither of which is referenced in the Article.

[49] As for the map, which shows proposed borders of the future Khalistani state entirely within India’s borders, SFJ maintains that it did not create or post this map and that SFJ is not associated with the map’s publisher. On cross-examination, despite having drawn certain inferences in the Article on the assumption that the map was posted by SFJ, Milewski ultimately conceded that he was not certain that SFJ posted the map. He went on to allege that diligence does not require a journalist to verify the author of a website before relying on the website to criticize its author, and in any event confirmed that he did not contact SFJ with respect to whether or not it had created or published the map.

[50] On the question of whether or not inclusion of the defamatory statements was justifiable, the plaintiff says that, given the seriousness of the allegations, the lack of urgency, and the non‑existence (or unreliability) of sources, the SFJ-Pakistan Statements required a high degree of diligence prior to publication, and that the defendants fell short of this standard.

Conclusion on Responsible Communication

[51] Assessing the responsible communication defence, again on the “grounds to believe” basis, not purporting to suggest definitively that the defence will fail on the balance of probabilities, but considering whether a reasonable trier might accept or reject the defence, in my view the plaintiff again meets the threshold in this section. It is conceivable, and there are grounds to believe, that a reasonable trier might reject this defence on the basis of a lack of diligence in verifying some of the statements reviewed above.

Second Defence: Fair Comment

[52] The second defence advanced by the defendants for purposes of this motion is “fair comment”.

[53] The parties agree that the defence of fair comment necessarily includes five elements. These are:

(a) the comment must be on a matter of public interest;

(b) the comment must be based on fact;

(c) the comment, though it can include inferences of fact, must be recognizable as comment;

(d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?;

(e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was (subjectively) actuated by express malice.

[54] Again, the parties agree that the Article deals with a matter of public interest. With respect to malice, although the plaintiff alleges there is an “arguable case of malice” they go no further in argument than to suggest that MLI’s express wish to “forge closer ties with India” provided an ulterior motive rendering MLI reckless or indifferent as to the truth or otherwise of the facts they were publishing. While if the matter proceeds to trial the plaintiff is entitled to explore and advance that allegation, the evidence in the record before me falls short of establishing malice, particularly on the speculative basis on which the plaintiff makes the pitch.

[55] As such, in my view, the defence of fair comment falls to be assessed on this motion on the basis of the second, third and fourth prongs. Fundamentally, what divides the parties in this section is a debate about whether the Article, and in particular the SFJ-Pakistan Statements are statements of fact or comments, or, if comments, whether those comments are supported by facts (and, if not supported by proved facts, could they be honestly held?).

[56] The plaintiff submits that the SFJ-Pakistan Statements are statements of fact. It argues that the court must consider the perspective of a reasonable reader in making this determination. In an editorial context, where loose, figurative or hyperbolic language is used, the plaintiff concedes that there may be more leeway to find that what appears to be a statement of fact is actually a comment. However, the plaintiff refers to para. 70 of LeBel J.’s concurring reasons in the leading Supreme Court of Canada case of WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420. There, Justice LeBel stated that:

It should go without saying that people evaluate statements of opinion differently than statements of fact. In discussing what constitutes a statement of fact as opposed to comment, Lord Hershell noted that,

The distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed, or discreditable language used. It is one thing to comment upon or criticize, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct. (Davis & Sons v Shepstone (1886), 11 App. Cas. 187 (P.C.), at p. 190).

[57] The plaintiff argues that the SFJ-Pakistan Statements are factual in nature inasmuch as they are not incapable of proof. To illustrate the proposition, they provide as examples that:

(a) Either Pakistan influences and drives the SFJ referendum campaign, or it does not;

(b) Either Pakistan is SFJ’s “patron” and “sets limits” on its campaign, or it does not;

(c) Either Pakistan influences, controls and sponsors SFJ, or it does not;

(d) Either SFJ has undying solidarity with Pakistan, or it does not.

[58] In other words, according to the plaintiff, these examples are not matters of opinion but can be proved or disproved as matters of fact.

[59] While not of course definitive, the plaintiff points out that there is evidence from the “twittersphere” showing that Milewski himself seems to regard the statements at issue as matters of fact. In a tweet on September 18, 2020, apparently in response to the open letter published by Sikh scholars (discussed above), Milewski tweeted: “But both parts – the Pakistani role and the lack of support – are true and evident. So, time to shoot the messenger”. On September 23, 2020, in response to a tweet accusing him of shoddy reporting in the writing of the Article, Milewski tweeted: “So you’d like to wriggle out of discussing the facts. Cool plan! I take this to mean the facts I reported are correct, but you don’t like me reporting them. So we agree!” Plaintiff’s counsel acknowledged up front the perils of relying on Twitter for evidence of anything, but argues, fairly in my view, that the tweets in question tend to show Milewski’s position that the Article is factual.

[60] The plaintiff argues in the alternative that even if the claims are found to be comments, they are not based on proven facts and are not opinions that could honestly be held based on proven facts. In the plaintiff’s submission, Milewski’s various concessions on cross-examination are dispositive.

[61] The defendants also rely on the WIC Radio, and in particular Justice Binnie’s recognition that commentators are allowed a broad latitude under the cover of fair comment. Binnie J. noted, at para. 61, that “it makes little sense to deny the defence of fair comment to a speaker whose opinion has been misunderstood, even if carelessness in the use of words is the source of the misunderstanding”.

[62] The defendants argue that Milewski’s statements in the Article were based on facts he sourced or on facts widely known to the public. Such facts, the defendants say, include Pakistan’s significant and historical involvement in the Khalistan movement as well as the extremely low support for the Khalistan movement among Sikhs in India.

[63] They say that Milewski’s opinion – that given the established facts, SFJ does not speak for Sikhs, generally, but rather for Pakistan – is recognizable as comment.

Conclusion on Fair Comment

[64] In my view, the established facts to which the defendants point, such as Pakistan’s historical involvement in the Khalistan movement, do not clearly provide factual underpinnings for the SFJ‑Pakistan Statements with which the plaintiff takes issue. Using that example to illustrate the point, the fact that Pakistan has traditionally been involved in the Khalistan movement does not prove that Pakistan controls or sets limits for SFJ nor that Pakistan is driving the agenda of Referendum 2020. In other words, while there are factual matters presented in the Article which can be proved, it appears that there are other matters presented as factual for which no evidence is provided (something which Milewski conceded on cross‑examination).

[65] Again I am not deciding, and need not decide, that the defence of fair comment will definitively fail. Rather, as put by the plaintiff in its summary on this point, “it is open to a trier to conclude that the statements made about the plaintiff were uttered as statements of fact not opinion, that any statements of opinion were not based on fact, and/or that a person could not honestly hold the opinions on the proven facts. Any of these establishes a basis in the law and record on which the defence of fair comment could fail”.

[66] I agree.

Balancing Harm and Public Interest

[67] I turn now to the test in s. 137(4)(b). Here, I must consider whether the harm likely to be or which has 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.

[68] I note at the outset of this part of the analysis that, if it is the case that the “expression” in issue comprises factual inaccuracies, then the public interest in protecting such expression may be less than the interest in protecting expression more in the nature of clear opinion.

[69] In terms of the harm suffered by SFJ, I have set out above a summary of what SFJ alleges. The defendants fairly note that some of what is claimed is exactly that – claims – without specific evidence: for example, the financial losses alleged.

[70] The plaintiff’s response to this allegation is twofold. First, the plaintiff says that it was open to the defendants to cross-examine the plaintiff’s deponent Mr. Grewal on the contents of his affidavit, and that the defendants chose not to do so. I agree with defendants’ counsel that if the evidence is inadequate counsel has no obligation and, in fact, it is tactically unsound to risk improving that evidence through cross-examination. As such, those statements, while untested, carry minimal weight.

[71] What is more compelling, though, is the general claim that, going as they do to the very heart of the mandate of a not-for-profit group, whose reason for being and main endeavor is to advocate for a Sikh homeland and to promote a referendum to that end, the SFJ-Pakistan Statements in the Article inevitably damage the reputation and operations of the plaintiff.

[72] To the extent that the SFJ-Pakistan Statements implicate SFJ as a puppet of Pakistan serving a Pakistani agenda, it is conceivable that extensive and even irretrievable damage might undermine the credibility and therefore function of SFJ.

[73] The plaintiff points, as support for that notion, to Lascaris v. B’nai Brith Canada, 2019 ONCA 163, 144 O.R. (3d) 211, where the defendants had alleged that the plaintiff supported terrorists. In that case, the Court of Appeal for Ontario found, at para. 41, that this was:

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

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

[74] SFJ acknowledges that it has been falsely accused in the past by the Indian government and Indian media companies of connections to Pakistan, but argues that the specific allegations of Pakistani control of SFJ’s central objective, particularly coming from a senior respected correspondent, carries a singularly significant impact.

[75] Relying on Bent and Pointes, SFJ submits that the primary assessment required under s. 137.1(4)(b) is a public interest weighing exercise and not merely an inquiry into the hallmarks of a SLAPP: Bent, at para. 171, quoting Pointes, at para. 79. It says that the question is not simply whether publishing on the topic of Khalistan is in the public interest, but, rather, whether an allegation that SFJ is influenced or controlled by Pakistan is in the public interest and, in that context, necessarily considering the quality of the expression in issue.

[76] Turning to the “indicia of a SLAPP suit” the plaintiff reiterates that it has no history of using litigation or the threat of litigation to “silence critics” (repeating that the one defamation case it has brought in the past did not proceed in Ontario for jurisdictional reasons and did not reach the stage of findings on the merits). Regarding the alleged financial power imbalance between the parties, it fairly observes, and the defendant concedes, that there is no evidence in this record of the respective parties’ financial circumstances. It denies that there is evidence of a punitive or retributory purpose for bringing this claim and maintains that, instead, SFJ is seeking to defend its reputation by correcting the public record and showing that the allegations of Pakistani control are in fact false and defamatory. In asserting that there is no evidence of a “chilling effect” from the lawsuit, SFJ fairly notes that the defendants declined to remove or edit the report, nor did they apologize to SFJ and that, in fact, in cross-examination and in the public domain, (as evidenced by the “tweets” referenced above), Milewski has repeated and affirmed his allegations.

[77] In terms of other indicia not addressed by the defendants, SFJ confirms that there is no history of previous litigation between these parties, that the resources used for this lawsuit are proportionate to the harms caused by the defamatory statements (going as they do to the legitimacy of SFJ as an organization), and that the defendants’ expression is likely to provoke hostility against Sikhs in Canada.

[78] For these and other reasons, as well as pointing to the evidence suggesting that Milewski acted on assumptions without exercising appropriate diligence, and without adhering to standard journalistic practices, SFJ maintains that this is a legitimate defamation action and that SFJ should have the right to pursue a remedy.

[79] For its part, in maintaining that the public interest in protecting the defendants’ expression outweighs the public interest in permitting the claim to continue, the defendants also rely on a passage from Pointes, where Côté J., at para. 62, says:

As I have often mentioned in these reasons, this provision is the core of s. 137.1. The purpose of s. 137.1 is to function as a mechanism to screen out lawsuits that unduly limit expression on matters of public interest through the identification and pre‑trial dismissal of such actions. While s. 137.1(4)(a) directs a judge’s specific attention to the merit of the proceeding and the existence of a valid defence in order to ensure that the proceeding is meritorious, s. 137.1(4)(b) open‑endedly engages with the overarching concern that this statute, and anti-SLAPP legislation generally, seek to address by assessing the public interest and public participation implications. In this way, s. 137.1(4)(b) is the key portion of the s. 137.1 analysis, as it serves as a robust backstop for motion judges to dismiss even technically meritorious claims if the public interest in protecting the expression that gives rise to the proceeding outweighs the public interest in allowing the proceeding to continue.

[80] The defendants start from the indisputable proposition that the importance of freedom of expression is well accepted and paramount in Canadian society, underlining that the Supreme Court has recognized that freedom of expression and respect for vigorous debate on matters of public interest have long been seen as fundamental to Canadian democracy.

[81] The defendants acknowledge that the expression by Milewski – that, in advocating for Khalistan, separatists (including SFJ) are speaking not for Sikhs but for Pakistan – is admittedly a “challenging” one for Khalistani separatists, but argue that it is an especially relevant one for Canadians to consider, particularly given that Canada has the largest Sikh diaspora in the world and that SFJ is actively promoting the referendum in Canada. The defendants add that the Khalistani movement affects Canada’s relationship with India, that Indo-Canadians have faced threats for opposing the Khalistani movement, and that Canadians must be made aware of the history of violence and extremism sometimes associated with the Khalistani movement.

[82] While of course freedom of expression is sacrosanct and while Canadians benefit from learning about the sometimes violent activity of some Sikh separatists, it strikes me that these observations, while appropriate and fair, do not really address the complaint of SFJ relative to the Article, as embodied in the SFJ-Pakistan Statements. The complaint SFJ raises about the Article is not in relation to its treatment of historical violence, but rather goes to specific allegations in the Article about specific current influence by Pakistan over SFJ and its activities and mandate. If the Article did not contain these particular assertions, I think it is highly unlikely that SFJ would have brought its claim.

[83] I also find the defendants’ submissions on the “indicia of a SLAPP suit”, to be insufficiently compelling to raise specific concerns. Although SFJ has brought one previous defamation claim, it arose in a different context and did not proceed beyond the pleadings stage and a jurisdictional challenge. Thus, in the absence of much of a record (let alone findings on the merits), it does not provide evidence of a track record of using litigation to silence critics. Similarly, as the defendants’ counsel was candid and fair to acknowledge, there is no evidence before me about the financial wherewithal of either party from which I could make informed findings about a financial imbalance. In support of the notion that the claim is brought for a punitive or retributory purpose, the defendants cite (at para. 108 of their main factum on this motion) “Milewski’s belief that SFJ has publicized the Claim in order to create an object lesson for others who would report facts that SFJ does not want reported”. Apart from seemingly confirming the SFJ’s position that what the Article purports to provide are “facts”, the source of this argument, i.e., one of the defendants’ beliefs, can only carry so much weight. Similarly, with respect to the damages potentially occasioned by the Article, the defendants assert that “there is good reason to believe that, if this matter were to proceed to trial, any damages actually awarded to SFJ would be minimal or nominal”. While of course any outcome is possible, in my view the defendants’ position on this item again tends to conflate that which is in issue in the lawsuit – the specific SFJ-Pakistan Statements – with that which is not – an unfortunate history of violence on the part of some Sikh separatists. The proposition advanced by the defendants, that because allegations of violence and Pakistani influence over the Khalistan movement have been widely made in the past, there is no likelihood of substantial damages arising from the Article, underestimates the potential impact of the SFJ-Pakistan Statements, going as they do to the SFJ’s existence and purpose.

[84] It is fair to say, as the defendants do, that Milewski has acted for most of his life as an advocate in the public interest. It is undoubted and not contested that he has had a distinguished career as a journalist and is well-deserving of public respect and accolades. Again, though, that impressive set of lifetime achievements does not dislodge the necessity of assessing the SFJ‑Pakistan Statements in their own right.

Overall Conclusion

[85] On balance, and again without venturing any opinion or prediction about the ultimate outcome of the lawsuit, I find that the claim is sufficiently serious and meritorious to survive the s. 137.1 screening, and that it is not clear that this is a SLAPP suit.

[86] I therefore decline to dismiss the action at this stage and instead dismiss the defendants’ motion.

[87] In my view, notwithstanding the provisions of s. 137.1(8) the plaintiff is entitled to its costs of the motion. There was extensive and detailed preparation put into the motion (on both sides) and clearly the motion was “existential” for the claim. In my view, in order to ensure that there is careful thought put into the bringing of these motions, a moving party ought not to be insulated from costs, particularly where, as here, very extensive materials and preparation are required. If costs cannot be agreed, I am prepared to receive written submissions in that regard. In that circumstance, the plaintiff is to deliver a written submission not to exceed 5 pages in length together with a bill of costs, within 21 days of today’s date (November 15, 2021). The defendants shall then have a further period of up to 10 days (November 25, 2021) to respond, with written submissions also not to exceed 5 pages.

W.D Black J.

Date: October 25, 2021