COURT FILE NO.: 28849/22
DATE: 2022-10-11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KAREN BELL
Plaintiff
– and –
GARDEN RIVER FIRST NATION, BRANDI NOLAN, and TREVOR SOLOMON
Defendants
M. Bourrie and N. Sayers, for the Plaintiff
C. Shefman and M. Wente, for the Defendants
HEARD: September 29, 2022
VARPIO J.
REASONS FOR DECISION
OVERVIEW
[1] The Garden River First Nation (“GRFN”) is located near Sault Ste. Marie, Ontario. The plaintiff and the individual defendants are GRFN band councilors. Council is responsible for the administration of GRFN and its responsibilities include policing, inter-governmental relations and such.
[2] During the COVID-19 pandemic, GRFN, like other public entities, had to wrestle with the financial implications of the pandemic. On May 18, 2021 council received financial statements from its accountants. On June 28, 2021, council considered its budget process. The plaintiff was present at both meetings
[3] Apparently dissatisfied with the nature of said financial disclosed, on October 24, 2021 the plaintiff posted a statement on Facebook which stated, inter alia, that “During the last term I had requested a number of times our Financial Statements and a budget. For the last year we have seen nothing”. The parties agree that “we” refers to GRFN Council.
[4] November 9, 2021, GRFN Council passed a motion whose preamble stated:
Whereas, the information Councillor Karen Belll [sic] has provided by way of her social media post is false information and information is very misleading to our members [sic]… [i]nformation provided in her social media post in [sic] false and incorrect.
[5] The motion required Councilor Bell to remove the post and acknowledge that the information was incorrect (the “Censure Motion”).
[6] On November 23, 2021, GRFN Council rescinded the Censure Motion.
[7] On December 20, 2021, the plaintiff served a Notice of Libel upon the defendants and commenced the instant action. The defendants bring a motion for summary judgment claiming, inter alia, that the defence of justification was applicable in the circumstances and that there is no genuine issue for trial.
[8] For the reasons that follow, I find that there is no genuine issue for trial since the “sting” of the defamation is substantially true. Specifically, Councilor Bell saw financial statements and a budget in her capacity as counselor in the spring of 2021. The statement “[f]or the last year we have seen nothing” is therefore incorrect and misleads the members of GRFN.
[9] Accordingly, summary judgment is granted, and the action is dismissed.
FACTS
[10] The plaintiff is a councilor with the GRFN as are the two individual defendants. During the course of COVID, it appears that the GRFN was forced to consider the economic implications of the pandemic. As per the sworn affidavit of the defendant Brandi Nolan, the GRFN undertook budgetary steps to address pandemic-related uncertainty.
[11] On May 18, 2021, GRFN’s auditors presented GRFN’s 2019-2020 audit to Council. According to the meeting minutes, which I accept as fact, the plaintiff was present at that meeting and voted against approving the financial statements. Despite same, the financial statements presented by GRFN’s accountants were approved by Council.
[12] On June 28, 2021, GRFN’s 2021-2022 ‘Budget Set 1’ was presented to a special working council meeting. According to the meeting minutes, which I accept as fact, the plaintiff chaired that meeting[^1]. Council approved this budget and Councilor Bell voted in favour of approving this budget.
[13] On or about October 24, 2021, the plaintiff posted an update on her Facebook page under the name “Councillor Karen Bell”. The post stated:
During the last term I had requested a number of times our Financial Statements and a Budget. For two years we have seen nothing. I don’t know how this council can move forward when we know nothing of the last term or the present terms’ fiscal situation [sic].
During the last 2 weeks I have heard from many people telling me about the need for transparency dealing with THEIR money. We must know where we stand before making ANY further decisions.
I put a motion on the floor to council last week that we receive a complete set of Financial Statements for the past two years and that the current years’ Budget [sic] be presented within the next two weeks as we are already half way through the fiscal year with no idea where we stand financially. I was shot down but promised it would be raised at a later date.
As your representative on Council it is my duty to seek transparency and this basic information for all of us!. [sic] These are YOUR dollars being spent with NO ACCOUNTABILITY. How can we run a government and have its members completely in the dark about our financial health or even what money we are receiving and what we are spending? This CANNOT be the purview of only a few.
I need your help in calling for transparency and accountability. Do you want to know where your money is going? To what programs? Have your say here and I will bring your messages to our next Council Meeting. Together we can fight for transparency!
[14] The next day, the plaintiff posted a cover image on the Facebook page that stated, “Two years without an audited financial statement” and “No budget for 2021”.
[15] GRFN Council met on November 9, 2021. The plaintiff attended that meeting in her capacity as councilor. The Censure Motion was tabled and passed. It stated:
Whereas, the purpose of the Chief & Council Guidelines is to provide the elected members, with guidelines [sic] for which they can perform the duties of office in a consistent, fair and efficient manner.
Whereas, we endeavour to conduct ourselves in a manner that is consistent with the Seven Grandfather Teachings given to us by the Creator.
Whereas, Councillor [sic] Karen Bell has made a social media post on October 24, 2021 stating “During the last term I had requested a number of times our Financial Statements and a budget. For the last year we have seen nothing.”
Whereas, the meeting of the 2019-2020 audit presentation of May 18, 2021 was passed by motion 2021-2022-03 for which Councillor Karen Bell [sic] was present at the meeting.
Whereas, the meeting of the 2021 budget was passed by motion 2021-2022-14 for which Councillor Karen Bell [sic] was present at the meeting.
Whereas, the information Councillor Karen Belll [sic] has provided by way of her social media post is false information and information is very misleading to our members.
Therefore be it resolved, as per section 1.2 Enforcing the Code of Conduct of the C&C Guidelines the recommendations are as follows:
Councillor Karen Bell [sic] publish an acknowledgment that the information provided in her social media post in false and incorrect [sic]. Acknowledgment to be done within one day of the motion.
Within three days of the published acknowledgement, Councillor Karen Bell [sic] will remove the unsanctioned “Councillor Karen Bell [sic]” Facebook page.
Failure to do 1 or 2, the final recommendation will be to remove Councillor Karen Bell [sic] from a portfolio or committee (education portfolio, infrastructure portfolio, nationhood portfolio or the environment committee).
[16] On November 23, 2021, GRFN Council convened another meeting and the Censure Motion was rescinded.
[17] On December 20, 2021, the plaintiff served the defendants with a Notice of Libel.
[18] The plaintiff filed a Statement of Claim that stated that the following portions of the Censure Motion were defamatory:
Whereas, the information Councillor Karen Belll [sic] has provided by way of her social media post is false information and information is very misleading to our members…
[i]nformation provided in her social media post in [sic] false and incorrect.
[19] The Statement of Claim alleges at paras. 28 and 29 that:
The plain and simple meanings of the complained of words are:
The Councillor [sic] Bell misleads the people of Garden River First Nation.
That Councillor [sic] Bell acts against the interests of Garden River First Nation.
That Councillor [sic] Bell is a liar.
The complained-of words are false.
POSITION OF THE PARTIES
[20] The defendants filed this summary judgment motion. The defendants submit that summary judgment ought to be granted because:
The impugned portions of the Censure Motion were truthful;
The impugned portions of the Censure Motion were made in an environment whereby qualified privilege applies; and
The impugned portions of the Censure Motion constitute fair comment.
[21] The defendants submit that there is no genuine issue for trial.
[22] The plaintiff submits that there is a genuine issue for trial in so far as an expansive view of the pleadings ought to be taken. Specifically, the plaintiff submits that the Censure Motion makes it appear as though the entire social media post contained falsehoods and that the Censure Motion effectively states that Councilor Bell is a liar. The factual underpinnings of this evidential matrix require a trial.
[23] Also, no qualified privilege exists in this situation because malice can be inferred from the manner in which the motion was passed. Council did not follow its own procedures for a Censure Motion as, inter alia, Councilor Bell did not speak in defence of her actions.
ANALYSIS
Summary Judgment
[24] Rule 20.04 of the Rules of Civil Procedure describes the test to be applied by the courts when considering a motion for summary judgment:
20.04 (2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. O. Reg. 284/01, s. 6; O. Reg. 438/08, s. 13 (2). [^2]
[25] The Supreme Court of Canada in Hryniak v. Mauldin, [2014] SCC 7 clarified the test for granting summary judgment at paras. 49 to 51:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
Often, concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself. However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.
[26] Once a moving party on a summary judgment motion adduces evidence sufficient to show that there is no genuine issue for trial, the responding party must put forward admissible evidence demonstrating the existence of a genuine issue of material fact requiring a trial: Sweda Farms v. Egg Farmers of Ontario 2014 ONSC 1200 at paras. 24-26, aff’d 2014 ONCA 878, leave to appeal ref’d [2015] SCCA No 97.
Defamation and Justification
[27] The Supreme Court in Grant v. Torstar Corp 2009 SCC 61, [2009] 3 S.C.R. 640 outlined the prerequisites for a defamation action at paras. 28 and 29:
A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (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 in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: see, e.g., R. A. Smolla, "Balancing Freedom of Expression and Protection of Reputation Under Canada's Charter of Rights and Freedoms", in D. Schneiderman, ed., Freedom of Expression and the Charter (1991), 272, at p. 282. (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se: R. E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), vol. 3, at pp. 25-2 and 25-3.) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.
If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability.
[28] At paras. 32 and 33, the Supreme Court described the defence of justification[^3]:
Where statements of fact are at issue, usually only two defences are available: the defence that the statement was substantially true (justification); and the defence that the statement was made in a protected context (privilege). The issue in this case is whether the defences to actions for defamatory statements of fact should be expanded, as has been done for statements of opinion, in recognition of the importance of freedom of expression in a free society.
To succeed on the defence of justification, a defendant must adduce evidence showing that the statement was substantially true. This may be difficult to do. A journalist who has checked sources and is satisfied that a statement is substantially true may nevertheless have difficulty proving this in court, perhaps years after the event. The practical result of the gap between responsible verification and the ability to prove truth in a court of law on some date far in the future, is that the defence of justification is often of little utility to journalists and those who publish their stories.
[29] In Bent v. Platknik [2020] S.C.J. No. 23, the Supreme Court of Canada described the defence of justification at paras. 107 to 109:
Once a prima facie showing of defamation has been made, the words complained of are presumed to be false: Torstar, at para. 28. To succeed on the defence of justification, “a defendant must adduce evidence showing that the statement was substantially true”: para. 33. The burden on the defendant is to prove the substantial truth of the ‘“sting’, or main thrust, of the defamation”: Downard, at §1.6 (footnote omitted). In other words, “[t]he defence of justification will fail if the publication in issue is shown to have contained only accurate facts but the sting of the libel is not shown to be true”: Downard, at §6.4.
Of particular importance here is the fact that partial truth is not a defence. If a material part of the justification defence fails, the defence fails altogether: R. E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (2nd ed. (loose-leaf)), at pp. 10-88 to 10-90 (“Brown on Defamation”). However, a defendant may justify only part of a libel “if that part is severable and distinct from the rest”: p. 10-89 (footnote omitted). This depends on the allegation being separate and self-contained rather than an “ingredient or part of a connected whole”: p. 10-90 (footnote omitted).
Applied to the facts of this case, the “sting” of the words is an allegation of professional misconduct. In her email, Ms. Bent essentially alleges that Dr. Platnick either misrepresented or altered the opinions of other medical experts with a view to depriving a claimant of a catastrophic impairment classification to which he or she was entitled. In effect, she alleges dishonesty and serious professional misconduct. As mentioned above, Ms. Bent appears to accept that this is the “sting”, or “innuendo”, of the words in her email. Therefore, she would have to lead evidence that the allegation of professional misconduct is substantially true in order for her defence of justification to succeed at trial. Here, on a s. 137.1 motion, Dr. Platnick must show that there are grounds to believe that Ms. Bent has no real prospect of success in making that showing.
Application to This Case
[30] First, I find that the impugned portions of the Censure Motion meet the prima facie test for defamation as described in Grant v. Torstar. The impugned words would lead a reasonable person to believe that Councilor Bell spread false information in her capacity as councilor. This belief would, in turn, lower Councilor Bell’s reputation in the eyes of the reasonable person. Second, the impugned words were authored by GRFN Council and the two named defendants who moved and seconded the motion.[^4] Third, the words were published as part of GRFN Council’s meeting minutes. Therefore, the test in Grant v. Torstar is met.
[31] I must now determine whether there is a genuine issue for trial regarding the justification defence and the alleged “sting” inherent in the words specified by the plaintiff in the Statement of Claim. Contrary to the plaintiff’s submissions, the Censure Motion did not suggest that the entire social media post was erroneous or riddled with untruths. Rather, the preamble of the motion explicitly stated:
Whereas, Councillor Karen Bell has made a social media post on October 24, 2021 stating “During the last term I had requested a number of times our Financial Statements and a budget. For the last year we have seen nothing.”
Whereas, the meeting of the 2019-2020 audit presentation of May 18, 2021 was passed by motion 2021-2022-03 for which Councillor Karen Bell was present at the meeting [sic].
Whereas, the meeting of the 2021 budget was passed by motion 2021-2022-14 for which Councillor Karen Bell was present at the meeting [sic].
Whereas, the information Councillor Karen Belll [sic] has provided by way of her social media post is false information and information is very misleading to our members. [Emphasis added.]
[32] The plain meaning of the Censure Motion’s preamble makes clear that the “false information” addressed by the Censure Motion relates solely to the allegation that Council has “seen nothing” regarding financial statements and a budget for over a year. The next two paragraphs of the preamble state that the plaintiff was present at GRFN meetings when financial statements and budgets were presented to Council. Accordingly, the Censure Motion is not concerned with the honesty or accuracy of the plaintiff’s entire October 24, 2021 social media posts. Rather, the Censure Motion is concerned with the two impugned sentences highlighted above. To find otherwise would not give any meaning to the preamble of the Censure Motion and would not accord with the normal rules of grammatical construction. There is no genuine issue for trial in this regard.
[33] Having determined that the Censure Motion relates only to the two sentences highlighted above, I also find that the “sting” of the impugned sentences is such that, in order for the defendants to avail themselves of the justification defence, the defendants have to prove that: (1) the statement “For the last year we [GRFN Council] have seen nothing [regarding financial statements and a budget]” is not true; and (2) that the statement is “very misleading” to GRFN members.
[34] First, the statement “[f]or the last year we have seen nothing” regarding budgets and financial statements is incorrect and is therefore a source of misinformation. The plaintiff posted this statement on October 24, 2021. She saw financial statements in her capacity as a band councilor on May 28, 2021. She saw a budget in her capacity as a band councilor on June 28, 2021. While she may not have thought that what she saw was acceptable, it cannot be said that GRFN Council “saw nothing” in the year prior to the social media post. This part of the “sting” is therefore substantially correct. There is no genuine issue for trial.
[35] Second, it is clear that the October 24, 2021 social media post is “very misleading” to members of the GRFN. In her Facebook post, the plaintiff did not state that the GRFN auditors failed to provide sufficiently accurate, detailed or GAAP-compliant financial statements. In the Facebook post, the plaintiff did not state that the GRFN failed to provide a sufficient or adequate budget. Rather, the plaintiff stated that GRFN councilors “have seen nothing”. This statement leads to the inference that individuals within GRFN leadership entirely withheld financial information from councilors, which is a serious accusation that imports a suggestion of gross negligence, or even fraud. Therefore, the statement that “we have seen nothing” is “very misleading” because it erroneously casts aspersions on GRFN leadership’s competence and/or honesty based upon an erroneous factual foundation. This portion of the “sting” is therefore substantially correct. There is no genuine issue for trial.
[36] Ultimately, it may be that that which was presented to council was inadequate, deficient or otherwise unacceptable, but that is not relevant to the action or to the summary judgment motion. It may also be that GRFN Council failed to follow its own rules in passing the Censure Motion. Again, that is not relevant to the matters before me. Rather, the “sting” of the Censure Motion – that Councilor Bell’s statement that “for two years we [GRFN Council] have seen nothing” regarding financial statements or a budget was false and “very misleading” - is substantially correct.
[37] Accordingly, summary judgment is granted as there is no genuine issue requiring a trial. Given the foregoing, I need not consider the other aspects of the summary judgment motion.
[38] The action is dismissed.
COSTS
[39] The parties may submit cost submissions (of no more than 5 pages, plus exhibits) in writing within 30 days of the release of these reasons.
Varpio J.
Released: October 11, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KAREN BELL
- and –
GARDEN RIVER FIRST NATION, BRANDI NOLAN, and TREVOR SOLOMON
REASONS FOR DECISION
Varpio J.
Released: October 11, 2022
[^1]: Apparently, two sets of budgets were considered. No expert evidence was tendered by either party describing the budgetary process undertaken by GRFN. Accordingly, I have no evidence to suggest that the process was inadequate.
[^2]: I need not refer to the broader powers conferred by Rule 20 in so far as they are unnecessary to the disposition of this matter.
[^3]: I note that the parties referred to “truthfulness” in their submissions but that the defence is described by the Supreme Court as “justification”. I will therefore refer to the defence of “justification”.
[^4]: For the purposes of these reasons, I need not resolve whether an independent cause of action is capable of existing as against the individual defendants given their roles on council.