A. Introduction

[1] In 2016, after the City of Fort McMurray, Alberta was evacuated because of devastating wildfires, the Plaintiff Ezra Levant, who is the principal of Rebel News Network Ltd., an online news service, organized an online fundraising campaign through an Internet website operated by Indiegogo. Between May 4, 2014 and May 7, 2016, the Defendant, Adam Stirling of Victoria, British Columbia, who at the time had aspirations to be a current affairs commentator and who had a miniscule base of Internet followers, used his social media account on “Twitter” to accuse Mr. Levant of organizing the fundraising campaign for his own personal financial gain and of engaging in fraudulent and improper conduct. Mr. Levant responded by suing Mr. Stirling for defamation. Pursuant to the simplified procedure of the [Rules of Civil Procedure][^1], Mr. Levant’s action proceeded through examinations for discovery. Then, as the action was about to be set down for trial, pursuant to the anti-SLAPP provisions of the Courts of Justice Act,[^2] which are designed to protect freedom of expression and public participation in matters of public interest, Mr. Stirling brought a motion for a dismissal of Mr. Levant’s defamation action.

[2] For the reasons that follow, Mr. Stirling’s motion is dismissed.

B. Procedural and Evidentiary Background

[3] On May 25, 2016, Mr. Levant issues his Statement of Claim against Mr. Stirling. He seeks $70,000 in damages for defamation and $25,000 in punitive and exemplary damages. Rebel News is not a party to the litigation.

[4] On November 7, 2016, Mr. Stirling delivers his Statement of Defence.

[5] On October 8, 2020, Mr. Stirling is examined for discovery.

[6] On October 9, 2020, Mr. Levant is examined for discovery.

[7] The action is set down for trial with a pre-trial conference scheduled to take place on March 29, 2022, but the conference is postponed when on March 14, 2022, Mr. Stirling delivered his Notice of Motion pursuant to s. 137.1 of the Courts of Justice Act for a dismissal of Mr. Levant’s defamation action.

[8] The anti-SLAPP motion is supported by: (a) Mr. Stirling’s affidavits dated March 11, 2022 and April 13, 2022; and (b) the affidavit dated March 11, 2022 of Tara Khatter. Ms. Khatter is a law clerk with the law firm of DLA Piper (Canada) LLP, lawyers for Mr. Stirling.

[9] On April 7, 2022, Mr. Levant responds to the anti-SLAPP motion with his affidavit of the same date.

[10] The motion is argued on May 18, 2022. I reserved judgment.

C. The Factual Relevance and Legal Significance of Levant v. Day

[11] As noted above, Mr. Levant’s defamation action was brought in May 2016, and Mr. Stirling’s anti-SLAPP motion was argued six years later in May 2022. The explanation for the delay is that contemporaneously with Mr. Levant’s defamation action against Mr. Stirling, Mr. Levant sued Robert P.J. Day on very similar facts.

[12] It seems that the parties to the immediate action were doing a procedural slow dance pending the outcome of Levant v. Day, which turned out to be very favourable to Mr. Levant in a decision that was affirmed by the Ontario Court of Appeal.

[13] In the immediate case, Mr. Levant relied heavily on the Levant v. Day decision in submitting that the action against Mr. Stirling should be decided similarly. Mr. Stirling, however, argued that there are significant differences between the cases including the circumstance that Mr. Stirling is advancing several defences that had not been advanced by Mr. Day.

[14] Technically speaking, as a matter of issue estoppels or res judicata insofar as Mr. Stirling is concerned, the outcome of Levant v. Day[^3] is not binding on him and the outcome does not foreclose Mr. Stirling’s anti-SLAPP motion. However, unfortunately for Mr. Stirling, given the outcome of Levant v. Day, while there are non-mutual issue estoppels binding on Mr. Levant, the estoppels while not harmful are not helpful to Mr. Stirling. Thus, because the issue estoppels are not binding on Mr. Stirling, in determining the facts of the immediate case, I shall essentially ignore the factual determinations made in Levant v. Day and come to my own conclusions.

[15] Technically speaking, as a matter of stare decisis, the law set out in Levant v. Day is binding on me, but since Levant v. Day itself did not change the existing law, the significance of the case to the present case is somewhat muted or academic. I, therefore, shall apply the binding law to the facts as I find them to be in the immediate case without resolving the parties’ debate about the extent to which the outcome of Levant v. Day is binding in Levant v. Stirling.

D. Facts

[16] Mr. Levant, whose former home was in Alberta, is now a resident of Ontario. He is the principal of Rebel News, which is an Ontario corporation that operates an online news and commentary service with the domain name http://www.therebel.media. Mr. Levant has a large following on Twitter of approximately 353,000 followers.

[17] In April and May 2016, the City of Fort McMurray, Alberta was ravaged by devastating forest fires and its citizens were evacuated and fled.

[18] On May 3, 2016, at Mr. Levant’s direction, Rebel News started an online campaign to raise disaster relief funds. Rebel News used the fundraising website “Indiegogo,” which charges a fee for its go-fund-me services, including a 5% platform charge and transaction fees. Ultimately, the fee was $13,326.28, of which $10,000 was arguably covered by Rebel News’ donation to the campaign.

[19] Rebel News promoted the fundraising campaign through various online platforms, including its own website, the Indiegogo website, Twitter, and YouTube. The promotional material stated that 100% of all funds donated would be sent to the Red Cross.

[20] As part of the fundraising campaign, Rebel News offered donors free subscriptions to Rebel Media, such as “Premium Content Subscription”. Rebel News advertised that donors contributing $160 or more would receive, free of charge, a subscription to some of Rebel News’ broadcasts. (There apparently were very few donations of $160 or more.)

[21] The campaign’s webpage announced that all proceeds would be donated to the local Red Cross in Alberta. A few days after the start up, the campaign’s webpage announced that Rebel Media was working with the Red Cross to issue the appropriate tax receipts for all contributors. The Red Cross Update read as follows:

The Red Cross reached out to thank us! Thank you for the continued support! The Red Cross reached out to thank us for our tremendous efforts. They even said they would work with us to issue the appropriate tax receipt for our contributors! We are still ironing out the details on the tax receipt, but we will keep you posted! Please help us raise even more for Fort Mac by sharing RebuildFortMac.ca on Facebook and Twitter!

[22] At the time when Rebel News announced the Fort McMurray fundraising campaign, Mr. Stirling was working in a grocery store. He is a satirist writer and at the time of the campaign, he had a small following on Twitter of approximately 3,300 followers who were his audience for satirical and humorous commentary on matters of public interest. After the events, Mr. Stirling became a host of an opinion program on a radio station in Victoria, British Columbia.

[23] Between May 4, 2016 and May 7, 2016, Mr. Stirling posted a series of tweets on his Twitter social media account making observations about Rebel News’ Fort McMurray fundraising campaign.

[24] On May 4, 2016, Christopher Wilson, Rebel News’ British Columbia bureau chief, responded to one of Mr. Stirling’s tweets and when Mr. Stirling asked for details about the fundraising campaign, Mr. Wilson responded with an insulting tweet and no substantive information. The same day, Mr. Stirling corresponded by tweet to Holly Nicholas, another Rebel News employee to clarify the scope and application of the tax receipt disclaimer that appeared on the Rebel News website. Ms. Nicholas did not provide any useful information and she and Sheila Gunn Reid, another Rebel News employee responded with rude invective aimed at Mr. Stirling.

[25] In the first series of tweets, published on May 4, 2016, Mr. Stirling stated that Mr. Levant was a charlatan stealing money that should go to disaster-stricken Albertans so that he could write-off his taxes. He said that “setting up an indigogo account supposedly for the Red Cross and promising 100% goes to them, when 5% is cut, is fraud” and that the “. RCMP should investigate the unauthorized solicitation on behalf of a charitable organization under false pretenses (100% of funds go etc.).”

[26] The second series of tweets, published by Stirling on May 5, 2016, stated that Mr. Levant “refused to help the victims of [the Fort McMurray wildfire] … He will hold back their money for months to sell @TheRebelTV viewer packages.”

[27] In the third series of tweets, posted by Mr. Stirling on May 6, 2016, he stated, among other things: (a) “We did it! Red Cross has intervened and they don’t let @TheRebelTV pocket other people’s tax deductions!”; (b) “The fact that there was a very real possibility somebody would go to jail over this might have also had something to do with it.”; (c) “Now that Red Cross (and CRA [Canada Revenue Agency] likely) are involved, I’m sure the laborious process of reconciliation will occur”; (d) “Everybody with half a brain can smell something shifty with Ezra creating a middleman bank account for Red Cross donations.”; (e) “I wanted the matter examined by the Red Cross and the authorities. The matter is now being closely examined. […]”; (f) “They’re treating this like a membership drive. They’ve done zero reporting on actual fire victims. Everything is for their middleman fund.”; (g) “[…] This is (at best) a publicity stunt. At worst, it’s fraudulent solicitation of charitable funds.”; and (h) “Again, I honestly, legitimately think Levant is up to something, and now everybody’s watching, so it won’t happen.”

[28] Mr. Stirling’s final series of tweets was published on May 7, 2016. He stated: “Somehow, I’m being selfish for driving donations directly to Red Cross & not Ezra[’s] private fund.”

[29] Mr. Stirling’s tweets received over 260,000 views. These tweets would have been retweeted, together with his other tweets suggesting that the Rebel News’ fundraising campaign was a scam and that Mr. Levant was committing fraud.

[30] Although Mr. Levant states that 100% of all funds donated to the fundraising campaign went to the Red Cross and that all donors received tax receipts for their contribution, Mr. Stirling remains of the opinion that Mr. Levant’s statements are not accurate.

[31] On May 7, 2016 and May 8, 2016, Mr. Levant contacts Mr. Stirling by email. Mr. Levant demands that Mr. Stirling delete the defamatory tweets and post a retraction on his social media webpages. Mr. Levant threats litigation and advises that the cost of litigation was something that Mr. Stirling “surely can’t afford.” Mr. Levant drafts the retraction he demands from Mr. Stirling. Mr. Stirling believes that Mr. Levant wanted him to issue the specific statement for the purpose of relying on it in the litigation that he was about to commence. Mr. Stirling deletes some tweets, but he refuses to post a retraction because he believes that Mr. Levant’s draft was untruthful to the facts.

[32] The following additional facts are pertinent to Mr. Stirling’s anti-SLAPP Motion:

a. Although tax certificates were issued by the Red Cross, Rebel News never indicated that tax receipts would be issued and indeed told donors not to expect tax receipts.

b. Mr. Stirling did not have any communications with the Red Cross about the issuance of donation tax receipts.

c. Mr. Stirling did not have any communications with the Canada Revenue Agency about the issuance of donation tax receipts.

d. There was no evidence that Mr. Levant used tax receipts for his personal benefit.

e. Mr. Stirling was not the only critic of Rebel News’ fundraising campaign. There were criticisms by others with Twitter accounts or social media accounts on Reddit.

f. As of June 7, 2016, Rebel News’ fundraising campaign for the victims of the Fort McMurray wildfires had raised approximately $162,476 from 1094 donors.

E. Law

[33] Sections 137.1 of the Courts of Justice Act states:

Dismissal of proceeding that limits debate

Purposes

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

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

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

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

Definition, “expression”

(2) In this section,

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

Order to dismiss

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

No dismissal

(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.

[34] Section 137.1 (3) of the Courts of Justice Act places a threshold burden on the moving party to show on a balance of probabilities that: (a) the underlying proceeding is somehow causally related to the moving party’s expression; and (b) the expression relates to a matter of public interest.[^4] The threshold burden is purposefully not a heavy onus, and what is a matter of public interest is viewed expansively, liberally, and generously.[^5]

[35] The inquiry of whether a matter is of public interest is a contextual one that asks what the expression is really about and whether some segment of the community would for good or for ill have a genuine interest in receiving information on the subject.[^6] In Grant v. Torstar Corp.,[^7] Chief Justice McLachlin referred to Lord Denning’s comments in London Artists, Ltd. v. Littler[^8] where he described public interest broadly as matters that affect people at large so that they may be legitimately concerned about what is going on or what may happen to them or to others.

[36] While some topics are inherently a matter of public interest (for example, the activities of governments and courts),[^9] there is no exhaustive list of topics that are matters of public interest, and, depending on the context and circumstances, an expression may engage the public interest. An expression may be a matter of public interest without engaging a substantial part of the community; it is enough that some segment of the community would have a genuine interest in the subject matter of the expression.[^10] An expression that relates to a matter of public interest need not further the public interest and indeed may be harmful to the public interest.[^11] The concept of public interest is a broad one that does not take into account the merits or manner of the expression, nor the motive of the speaker.[^12] An expression may be defamatory, false and malicious and still relate to a matter of public interest.[^13] Expressions involving corporations and commercial topics may relate to matters of public interest.[^14]

[37] Once the showing of an expression on a matter of public interest is made, the burden shifts to the plaintiff in the underlying lawsuit to satisfy the motion judge that there are grounds to believe the proceeding has substantial merit and 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 plaintiff in the underlying lawsuit cannot satisfy the motion judge that it has met its burden, then the motion will be granted, and the underlying proceeding will be dismissed.[^15]

[38] A s. 137.1 motion is not a determinative adjudication of the merits of the underlying claim or a conclusive determination of the existence of a defence. A motion judge deciding a s. 137.1 motion should engage in only limited weighing of the evidence and should defer ultimate assessments of credibility and other questions requiring a deep analysis into the evidence to a later stage, where judicial powers of inquiry are broader, and pleadings more fully developed.[^16]

[39] In determining whether there exist grounds to believe that the claim can be said to have a real prospect of success, courts must be aware of the limited record, the timing of the motion in the litigation process, and the potentiality of future evidence emerging.[^17]

[40] Taking into account the stage of litigation at which the motion is brought, the court must be satisfied that there is a basis in the record and in the law for finding that the underlying proceeding has substantial merit and that there is no valid defence, which is to say that while the plaintiff in the underlying proceeding need not definitively demonstrate that its claim is more likely than not to succeed, the claim must nonetheless be sufficiently strong that it has a real prospect of success; this requires the motion judge taking into account the stage of the proceeding, and be satisfied that the claim be legally tenable and supported by evidence that is reasonably capable of belief.[^18] A real prospect of success means that the plaintiff's success is more than a possibility and more than an arguable case.[^19]

[41] The no valid defence prong of the test on the motion requires the plaintiff to show that there are grounds to believe that all the defences that have been put into play by the defendant to the underlying proceeding do not have a real prospect of success, which is to say that the defences could be found to be not legally tenable or not supported by evidence that is reasonably capable of belief.[^20]

[42] On a s.137.1 motion, there is an evidentiary burden on the defendant who is resisting the motion to advance a valid defence, and then the persuasive burden moves to the plaintiff to show on a balance of probabilities that there are reasonable grounds to believe that the defence is not valid, which is to say not a successful defence.[^21] The question, however, is not whether there is no merit to the defence; rather, the question is whether a trier of fact could reasonably conclude that among the range of possible outcomes was the outcome that there was no defence.[^22]

[43] Thus, if the defendant meets the evidentiary burden of putting the defence in play, the plaintiff bears the onus of persuading the motion judge that a reasonable trier examining the record could, but not necessarily would, reject the defence(s).[^23] In other words, the plaintiff does not have to show that there was no possibility that the defence could succeed but, rather, just that it was reasonably possible that a trier could conclude that the defence would not succeed; a determination that a reasonable trier could decide either way on the defence satisfies the onus.[^24]

[44] Weighing the public interest in freedom of expression and public participation against the public interest in vindicating a meritorious claim is the critical aspect of the s.137.1 motion analysis, and the critical determination is whether the harm (be it monetary or non-monetary harm such as an injured reputation) caused by the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[45] On an anti-SLAPP motion, the party seeking to have his or her action continue must demonstrate the existence of harm that is sufficiently serious that it outweighs the public interest in protecting his or her opponent’s expression on a matter of public interest. However, the party resisting the anti-SLAPP motion is not required to fully particularize or quantify the harm; rather, he or she must only demonstrate the existence of serious harm caused by the opponent’s statements.[^25] There is no threshold of seriousness and harm is not limited to monetary harm.[^26] General damages for harm to reputation are presumed from the publication of a libel or slander,[^27] and the gravity of some statements, such as an attribution of the plaintiff being dishonest, immoral, a pedophile, a terrorist, a terrorist supporter, a racist, a human smuggler, a corrupt politician, a swindler, a racketeer, a gangster, a mobster, are so obviously likely to cause serious harm to a person’s reputation that the likelihood of harm and general damages can be inferred, even if the party defamed does not lead evidence to show actual harm.[^28]

[46] Once serious harm has been established and shown to have been caused by the defendant’s expression it is necessary to assess whether the quality of the expression and the motivation behind the expression justifies its protection from civil lawsuit. The level of protection afforded to expression depends on the nature of the expression, and the court may inquire into, among other things, the core values underlying freedom of expression, such as the search for truth, participation in political decision making, and diversity in forms of self-fulfillment and human flourishing.[^29]

[47] The court may also consider: 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 disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award; and the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group or a group protected under human rights legislation or under s. 15 of the [Canadian Charter of Rights and Freedoms][^30].

F. Discussion and Analysis

[48] It was not disputed that Mr. Stirling’s statements on Twitter were expressions on a matter of public interest. With this acknowledgement having been made that Mr. Stirling’s statements are an expression on a matter of public interest, the burden shifts to Mr. Levant to show that: (a) there are grounds to believe that his defamation proceeding has substantial merit and that Mr. Stirling has no valid defence; and (b) the public interest in permitting Mr. Levant’s action proceeding outweighs the public interest in protecting Mr. Stirling’s statements on a matter of public interest.

[49] The elements of a claim of defamation are: (1) the defendant makes a statement; (2) the words of the statement are defamatory, i.e., the words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (3) the statement is referable to the plaintiff; and (4) the statement is published.[^31]

[50] With respect to the constituent elements of a defamation claim, the only element that was disputed was whether Mr. Stirling’s words would tend to lower Mr. Levant’s reputation in the eyes of a reasonable person. Mr. Stirling argued that his statements on Twitter were not defamatory because given the context of Twitter and Mr. Stirling’s background as a humorist, a reasonable person would not take his statements as anything but jokes that are not to be taken as having substantial meaning.

[51] However, I disagree with Mr. Stirling’s submission, and I conclude that Mr. Levant has demonstrated that there are grounds to believe that his defamation proceeding has substantial merit. What Mr. Stirling tweeted was deeply harmful to Mr. Levant as an Albertan in his heart and soul, but more to the point. a reasonable person would believe (and apparently some reasonable people did believe) that Mr. Levant was a profit-mongering criminal defrauding the donors bringing aid to victims of a natural disaster in Alberta.

[52] There is no merit to Mr. Stirling’s submission that his tweets would not be taken seriously. Mr. Stirling’s comments were defamatory. In their natural and ordinary meaning, his words conveyed the meaning that the fraudster Mr. Levant was perpetrating a fraud on the donors seeking to bring aid to the victims of the Fort McMurray wildfire and that there should be an investigation by the police and by the CRA and the prosecution of criminal charges. In the natural and ordinary meaning, the words conveyed the meaning that Mr. Levant was not acting magnanimously but was selfishly and deceitfully profiting at the expense of the donors and the victims of the disaster.

[53] Having met the onus of showing that there are grounds to believe that his defamation action has substantial merit, in order for Mr. Levant to defeat Mr. Stirling’s anti-SLAPP motion, he must next show that there are grounds to believe that Mr. Stirling has no valid defence to the defamation claim.

[54] In Roy v. Ottawa Capital Area Crime Stoppers,[^32] Justice MacLeod said that there are nine recognized defences to defamation actions, and of these, three are pertinent to the immediate case; namely: (a) “truth or justification”, where the defendant proves that the communication was factually accurate and substantially true; (b) “fair comment”, where statements on a matter of public interest that are recognizable as comments or opinions are made without malice; and (c) “responsible communication”, which protects publishers if they have acted responsibly by taking reasonable steps to ascertain the reliability of the information and if the statement relates to a matter of public interest and was communicated without malice.

[55] Mr. Stirling’s first defence is justification. To succeed on the defence of justification, a defendant must adduce evidence showing that the statement was substantially true.[^33] The burden is on the defendant to prove, on a balance of probabilities, not that the truth of each and every word or the literal truth of every statement, but that the "sting, or main thrust of the defamation" is substantially true.[^34] Minor inaccuracies do not preclude a defence of justification as long as the publication conveyed an accurate impression.[^35]

[56] In the immediate case, the above recitation of the facts reveals that Mr. Levant has met the onus of showing that there are grounds to believe that Mr. Stirling’s justification defence does not have a real prospect of success. I appreciate that Mr. Stirling continues to genuinely believe that there was some dishonesty or deceptions or immoral enrichment by Mr. Levant, but justification is based on the existence of certain truth, and it is not based on the certainty of belief. Mr. Stirling has taken on the formidable task of proving deceit and criminal conduct which is the sting or main thrust of his tweets.

[57] Mr. Stirling’s second defence is fair comment. To succeed on the defence of fair comment, the defendant must establish that the impugned statement was: (a) a comment or opinion and not a statement of fact, although the comment or opinion could include inferences of fact; (b) a matter of public interest; (c) a comment or opinion based upon true facts; (d) objectively fair in the sense that any person could honestly express the comment or opinion based on the proved facts; and (e) made without malice.[^36] If there is a factual foundation for the comment or opinion, there is no requirement that the comment or opinion be reasonable.[^37]

[58] Once again, in the immediate, the above recitation of the facts reveals that Mr. Levant has met the onus of showing that there are grounds to believe that Mr. Stirling’s fair comment defence does not have a real prospect of success. There are several frailties to this defence that can be identified. It is readily arguable that Mr. Stirling’s tweets were not comments or opinions but were a reporter’s statements of fact. It is readily arguable that his comments, if that is what they were, were not based upon true facts and were not objectively fair based on the proved facts.

[59] There is also an arguable case that Mr. Stirling spoke maliciously or recklessly or both. In Hill v. Church of Scientology of Toronto,[^38] and WIC Radio Ltd. v. Simpson,[^39] the Supreme Court adopted the definition of malice set out by Justice Dickson in Cherneskey v. Armadale Publishers Ltd.:[^40]

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

[60] Thus, malice includes spite or ill-will and may also be established by showing that the comment or opinion was made dishonestly with an indirect motive or ulterior purpose or was made knowingly or in reckless disregard to the truth.[^41] Recklessness may be demonstrated by the defendant’s lack of diligence to fact-check, to be accurate, and to correct inaccurate facts and mistakes when they are brought to his or her attention.[^42] If malice was the dominant motive of the defendant, proof of the defendant’s honest belief in the comment will not negate a finding of malice.[^43] If Mr. Stirling had legitimate concerns about the availability of tax receipts, which by the way were not promised by Rebel News, he could have expressed his concerns without necessarily defaming Mr. Levant.

[61] Mr. Stirling’s third defence is the responsible communication defence. To succeed on this defence, the defendant must establish that: (a) the impugned statement is a matter of public interest; and (b) the publication of the statement was responsible in that (i) reasonable steps were taken to ensure the overall accuracy of any factual assertions and (ii) reasonable steps were taken to ensure the fairness of the publication of the statements.[^44] In determining whether a defamatory communication made on a matter of public interest was responsibly made, the court may consider (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 lies in the fact that it was made rather than its truth (reportage), and (h) any other relevant circumstances.[^45]

[62] Yet again, the above recitation of the facts reveals that Mr. Levant has met the onus of showing that there are grounds to believe that Mr. Stirling’s reasonable communication defence does not have a real prospect of success. As the recital above of the factors that a court may consider reveals, the reasonable communication defence is essentially about the standards of honourable, reliable, diligent, and fair investigation and reporting on matters of public interest. In the immediate case, Mr. Stirling did take some steps to confirm the truth of his accusations, but it is arguable that he did not do enough and that in all the circumstances he cannot avail himself of the reasonable communication defence. In the immediate case, it is arguable that Mr. Stirling acted with malice.

[63] Thus, in my opinion, Mr. Levant has succeeded in showing that he has a defamation claim with a real prospect of success and that Mr. Stirling’s defences do not have a real prospect of success, which brings the analysis to the critical issue of weighing the public interest in freedom of expression and public participation against the public interest in vindicating a meritorious claim.

[64] In regard to balancing society’s interest in protecting free speech and in protecting the value of a good and honourable reputation, Mr. Levant has demonstrated that his reputation has suffered a serious harm. There is no merit to Mr. Stirling’s submission that the harm, if any, caused by his statements was visited only on Rebel News and not on Mr. Levant personally. Mr. Stirling’s tweets are aimed precisely at Mr. Levant, and they are seriously demeaning of his personal integrity. The statements were not a subject of debate about a contentious societal issue but an accusation of criminality and of misappropriating charity for the victims of the firestorm. The statements garnered over 260,000 views and those were multiplied by retweets to an unknown number of viewers with the message being that Rebel News’ fundraising campaign was a scam and that Mr. Levant was a fraudster. The seriousness of reputational harm is capable of being proved by a process of inference from the seriousness of the defamatory meaning.[^46] I appreciate that Mr. Levant has brought his claim under the simplified procedure, but that says little about the uncapped extent of his general or special damages. In bringing his lawsuit, Mr. Levant’s primary purposes does not appear to be to silence his critics or rivals but rather his primary motivation appears to be vindication and the protection of his reputation in his original homeland of Alberta. Allowing this litigation to proceed to a final stage of a trial will have little effect on expressions on matters of public interest and as I have already indicated there are ways to warn without disparagement and vilification. Mr. Stirling’s defence may succeed, but the balance of public interest favours that the merits of those defences ought to be tested. If the defences fail, the actual extent of the harm suffered by Mr. Levant should be determined in the crucible of a trial.

G. Conclusion

[65] For the above reasons, Mr. Stirling’s motion is dismissed.

[66] If the parties cannot agree about the matter of costs, they may make costs submissions in writing beginning with Mr. Levant’s submissions within twenty days of the release of these Reasons for Decision, followed by Mr. Stirling’s submissions within a further twenty days.

Perell, J.

Released: June 16, 2022

COURT FILE NO.: CV-16-553424-0000

DATE: 20220616

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

EZRA LEVANT

Plaintiff

and –

ADAM STIRLING

Defendant

REASONS FOR DECISION

PERELL J.

Released: June 16, 2022

[^1]: R.R.O. 1990, Reg. 194. [^2]: R.S.O. 1990, c. 43. [^3]: 2019 ONCA 244, aff’g 2017 ONSC 5956, leave to appeal to SCC ref’d [2019] S.C.C.A. No. 194. [^4]: Catalyst Capital Group Inc. v. West Face Capital Inc., 2021 ONSC 7957 at para. 63; 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at paras. 20-31. [^5]: Catalyst Capital Group Inc. v. West Face Capital Inc., 2021 ONSC 7957 at para. 63; Canadian Thermo Windows Inc v. Seangio, 2021 ONSC 6555 at para. 87; 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at paras. 28-30. [^6]: Canadian Therma Windows Inc v. Sango, 2021 ONSC 6555 at para. 89; Ontario Inc. v. Moore, 2020 ONSC 4553 at para. 20; 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at paras. 27-30; Grant v. Torstar Corp., 2009 SCC 61. [^7]: 2009 SCC 61. [^8]: [1969] 2 Q.B. 375 (C.A.). [^9]: Armstrong v. Corus Entertainment Inc., 2018 ONCA 689 at para. 15; Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690 at para. 19. [^10]: Nanda v. McEwan, 2020 ONCA 431 at para. 35; New Dermamed Inc. v. Sulaiman, 2018 ONSC 2517, aff’d 2019 ONCA 141; Grant v. Torstar Corp.¸2009 SCC 61 at paras. 102-105. [^11]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2018 ONCA 685 at para. 55, aff’d 2020 SCC 22; Levant v. Day, 2019 ONCA 244 at para. 10, aff’g 2017 ONSC 5956, leave to appeal refused [2019] S.C.C.A. No. 194; Amorosi v. Barker, 2019 ONSC 4717 at para. 11. [^12]: Sokoloff v. Tru-Path Occupational Therapy Services Ltd, 2020 ONCA 730; Nanda v. McEwan 2020 ONCA 431 at para. 37; Levant v. Day, 2019 ONCA 244 at para. 11, aff’g 2017 ONSC 5956, leave to appeal refused [2019] S.C.C.A. No. 194. [^13]: Platnick v. Bent, 2018 ONCA 687 at para. 38, aff’d 2020 SCC 23; 1704604 Ontario Ltd. v. Pointes Protection Assn., 2018 ONCA 685 at paras. 55–65, aff’d 2020 SCC 22. [^14]: Catalyst Capital Group Inc. v. West Face Capital Inc., 2021 ONSC 7957; Bradford Travel and Cruises Ltd. v. Viveiros, 2019 ONSC 4587 Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686. [^15]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22. [^16]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at para. 52. [^17]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at para. 37. [^18]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at paras. 32-54. [^19]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at para. 50. [^20]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at para. 51-60 (S.C.C.). [^21]: 1704604 Ontario Ltd. v. Pointes Protection Assn., [2018] O.J. No. 4449, 2018 ONCA 685 at paras. 83–84 (Ont. C.A.), leave to appeal granted [2018] S.C.C.A. No. 467 aff’d 2020 SCC 22 (S.C.C.). [^22]: Levant v. Day, 2019 ONCA 244 at para. 14, affg 2017 ONSC 5956, leave to appeal refused [2019] S.C.C.A. No. 194 (S.C.C.); Bondfield Construction Co. v. Globe and Mail Inc., 2019 ONCA 166 at para. 14; Amorosi v. Barker, 2019 ONSC 4717. [^23]: Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corp., 2021 ONCA 26; Bondfield Construction Co. v. Globe and Mail Inc., 2019 ONCA 166 at para. 15, rev’g 2018 ONSC 3347. [^24]: Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corp., 2021 ONCA 26; New Dermamed Inc. v. Sulaiman, 2019 ONCA 141 at para. 12. [^25]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at paras. 69-71. [^26]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at paras. 69-71. [^27]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at para. 44; Magno v. Balita, 2018 ONSC 3230 at para. 36; Rutman v. Rabinowitz 2018 ONCA 80 at paras. 62-63, aff’g 2016 ONSC 5864; Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 at paras. 167-172. [^28]: Canadian Union of Postal Workers v. B'nai Brith Canada, 2021 ONCA 529, aff’g 2020 ONSC 323; Skafco Ltd. (c.o.b. Robbie's Italian Restaurant) v. Abdalla 2020 ONSC 136 at para. 15; Montour v. Beacon Publishing Inc. (c.o.b. Frontline Safety & Security), 2019 ONCA 246 at paras. 27-42; Lascaris v. B’nai Brith Canada, 2019 ONCA 163 at para. 40-41; Awan v. Levant, 2016 ONCA 970, aff’g 2014 ONSC 6890, leave to appeal to S.C.C. ref’d [2017] S.C.C.A. 71; Cooke v. MGN Limited, [2015] 2 All ER 622 at para. 43 (C.A.); Grant v. Torstar Corp., 2009 SCC 61 [^29]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at para. 61-82. [^30]: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2020 SCC 22 at para. 61-82. [^31]: Grant v. Torstar Corp.¸2009 SCC 61 at para. 28; Warman v. Grosvenor (2008), 92 O.R. (3d) 663 at paras. 52-57 (S.C.J.); Lysko v. Braley (2006), 79 O.R. (3d) 721 (C.A.); Mantini v. Smith Lyons LLP (No. 2) (2003), 64 O.R. (3d) 516 (C.A.), leave to appeal to S.C.C. ref’d [2003] S.C.C.A. No. 344; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3. [^32]: 2018 ONSC 4207. [^33]: Platnick v. Bent, 2020 SCC 23 at para. 103. [^34]: Platnick v. Bent, 2020 SCC 23 at para. 103; Holden v. Hanlon, 2019 BCSC 622 at para. 169. [^35]: Kuehl v. Ross, 2021 ONSC 4251 at para. 292; Holden v. Hanlon at para. 169. [^36]: Soliman v. Bordman, 2021 ONSC 7023; Walsh Energy Inc. (c.o.b. The Energy Centre) v. Better Business Bureau of Ottawa-Hull Inc. (c.o.b. Better Business Bureau Serving Eastern and Northern Ontario and Outaouais, 2018 ONCA 383 at para. 19; Awan v. Levant, 2016 ONCA 970 at paras. 74-77, aff’g 2014 ONSC 6890, leave to appeal to S.C.C. ref’d [2017] S.C.C.A. 71; St. Lewis v. Rancourt, 2015 ONCA 513 at para. 7; Grant v. Torstar, 2009 SCC 61 at para. 31; WIC Radio v. Simpson, 2008 SCC 40 at para. 1; Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067. [^37]: Soliman v. Bordman, 2021 ONSC 7023; Walsh Energy Inc. (c.o.b. The Energy Centre) v. Better Business Bureau of Ottawa-Hull Inc. (c.o.b. Better Business Bureau Serving Eastern and Northern Ontario and Outaouais, 2018 ONCA 383 at para. 26. [^38]: [1995] 2 S.C.R. 1130 at para. 145. [^39]: 2008 SCC 40 at para. 101. [^40]: [1979] 1 S.C.R. 1067 at p. 1099. [^41]: 2504027 Ontario Inc. (c.o.b. S-Trip!) v. Canadian Broadcasting Corp., 2021 ONSC 3471 at para. 54; Platnick v. Bent, 2020 SCC 23 at para. 136; Walsh Energy Inc. (c.o.b. The Energy Centre) v. Better Business Bureau of Ottawa-Hull Inc. (c.o.b. Better Business Bureau Serving Eastern and Northern Ontario and Outaouais, 2018 ONCA 383 at para. 33; Nazerali v. Mitchell, 2018 BCCA 104 at para. 46; Smith v. Cross, 2009 BCCA 529 at para. 34; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 145; Taylor v. Despard, [1956] O.R. 963 at para. 20 (C.A.). [^42]: Awan v. Levant 2016 ONCA 970 at para. 94, aff’g 2014 ONSC 6890, leave to appeal to S.C.C. ref’d [2017] S.C.C.A. 71. [^43]: Awan v. Levant 2016 ONCA 970 at para. 92, aff’g 2014 ONSC 6890, leave to appeal to S.C.C. ref’d [2017] S.C.C.A. 71; WIC Radio v. Simpson, 2008 SCC 40 at para.53. [^44]: Soliman v. Bordman, 2021 ONSC 7023; Canadian Union of Postal Workers v. B'nai Brith Canada, 2021 ONCA 529 at para. 27, aff’g 2020 ONSC 323; Bondfield Construction Co. v. Globe, 2019 ONCA 166 at para. 18, aff’g 2018 ONSC 1880; Armstrong v. Corus Entertainment Inc., 2018 ONCA 689; Grant v. Torstar, 2009 SCC 61 at para. 98. [^45]: Bondfield Construction Co. v. The Globe and Mail, 2018 ONSC 1880 at para. 59, aff’d 2019 ONCA 166; United Soils Management v. Mohammed, 2017 ONSC 4450; Grant v. Torstar Corp.¸2009 SCC 61. [^46]: Levant v. DeMelle, 2022 ONCA 79; Lachaux v. Independent Print Ltd., [2017] EWCA Civ. 1334 at para. 72.

Levant v. Stirling, 2022 ONSC 3608

Case Summary

A. Introduction

B. Procedural and Evidentiary Background

C. The Factual Relevance and Legal Significance of Levant v. Day

D. Facts

E. Law

F. Discussion and Analysis

G. Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 1

Legal Tests 2

Legislation 2