Joel Bakan et al. v. Attorney General of Canada, 2022 ONSC 7090

COURT FILE NO.: CV-21-666251
DATE: 20221214

ONTARIO SUPERIOR COURT OF JUSTICE

RE: JOEL BAKAN, COOL WORLD TECHNOLOGIES, INC., GRANT STREET PRODUCTIONS, and ETHEL KATHERINE DODDS, Applicants

-and-

ATTORNEY GENERAL OF CANADA, Respondent

BEFORE: FL Myers J

COUNSEL: Sujit Choudhry and Joel Bakan, for the applicants Gail Sinclair, Andrea Bourke, and Jennifer Caruso, for the respondent

HEARD: December 12, 2022

ENDORSEMENT

The Motion

[1] The Attorney General moves to dismiss this application. In the application, the applicants seek an order requiring Parliament to legislate and one or more ministers of the Crown to regulate Twitter to ensure the applicants are entitled to purchase “promoted tweets” to display their movie trailer advertisement on Twitter’s social media platform.

[2] The application does not state a reasonable cause of action. It is doomed to fail under binding case law from the Supreme Court of Canada. It is therefore dismissed.

Novelty

[3] The applicants assert that this is a novel claim and a global first. Novelty alone is not a basis to recognize a claim however. In Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, at para. 19, the Supreme Court of Canada wrote:

…a claim will not survive an application to strike simply because it is novel. It is beneficial, and indeed critical to the viability of civil justice and public access thereto that claims, including novel claims, which are doomed to fail be disposed of at an early stage in the proceedings. This is because such claims present "no legal justification for a protracted and expensive trial" (Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83, at para. 19). If a court would not recognize a novel claim when the facts as pleaded are taken to be true, the claim is plainly doomed to fail and should be struck. In making this determination, it is not uncommon for courts to resolve complex questions of law and policy (see e.g. Imperial Tobacco; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Syl Apps; Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261). 19. [Emphasis added.]

[4] The applicants submit that the Supreme Court of Canada has been known to overrule its own prior cases. If novel cases are not allowed to proceed, they ask, how can that happen again? Here there is a precedent from the Supreme Court of Canada that is 14 months old standing in the applicants’ way. If, on appeal, the Supreme Court of Canada is of the view that this case presents issues that may lead it to overrule its recent decision, it will say so. Until then, I am bound to apply the existing law. Carter v. Canada (Attorney General), 2015 SCC 5, at para. 44.

The Claim and Brief Facts

[5] Professor Bakan is a Canadian legal scholar. He wrote a book and produced a documentary film both called The New Corporation. The book and film are critical of contemporary capitalism including the political power wielded by large technology companies (such as Twitter, Inc.). Twitter refused to allow the film promoters to purchase advertisement space (called a “promoted tweet”) on the Twitter platform. It did so ostensibly because the political content of the film violated three of its written advertisement policies.

[6] The applicants submit that Twitter has a unique role as Canada’s “town square”. Virtually all Canadian governments and politicians are very active on Twitter. Governments make major public policy announcements on Twitter. Twitter provides a unique ability for the populace to engage with politicians. The government’s massive use of Twitter has invested it with a quasi-public role. Governments regulate private parties like monopolies and common carriers due in part to the public dimension and importance of their services. Here, they allege, Twitter is a or the key locale for political expression in Canada and yet Twitter claims an unfettered right to censor and exclude political expression with which it disagrees – like Prof. Bakan’s work.

[7] The applicants Cool World Technologies Inc. and its owner Ms. Dodd are suing Twitter in separate proceedings. A motion by Twitter to dismiss that proceeding has been dismissed.

[8] In this case, the applicants seek the following relief in their Amended Amended Notice of Application:

1. The Applicants make application for:

(a) An order declaring that section 2(b) of the Canadian Charter of Rights and Freedoms ("the Charter") requires Canada to introduce legislation and promulgate regulations that protects constitutional freedom of expression values and interests on Twitter and other social media online platforms similarly functioning as public arenas for political, social, governmental and democratic expressive activity ("Twitter and other platforms").

(b) An order declaring that the content of new federal legislation and regulations that protect users' freedom of expression on Twitter and other platforms be guided by the principles courts have established regarding the interpretation and application of s. 2(b) of the Charter, and more particularly that such legislation and regulations should, inter alia:

(i) prohibit Twitter and other platforms from banning or otherwise restricting political, social, governmental and democratic expression that has been or would be held by Canadian courts to be high value expression, because it lies at the core of the Charter's guarantee of freedom of expression, aligning with its underlying purposes of individual self-fulfilment, social and political participation, and marketplace of ideas; and that does not give rise to any reasonable apprehension of harm;

(ii) permit Twitter and other platforms to ban or restrict speech that does not reasonably fall into the categories described in the previous paragraph; and

(iii) account for the fact that Twitter and other platforms have, as private actors, their own section 2(b) rights and interests.

[9] It is common ground that Twitter does not impose any applicable restrictions on the applicants’ ability to display their film trailer on their regular Twitter account. People who “follow” them, and others with similar interests identified by Twitter’s algorithm, will see the tweet of the applicants’ trailer. These regular or “organic” tweets are not limited by the political and other policies that Twitter applies when it sells paid ad space by promoting tweets.

[10] The applicants say that it is the ability to purchase ads or to promote a tweet that gives advertisers and other speakers the ability to reach broad audiences and to target their particular audiences. Promoted tweets can also go “viral”. They say that between 6 and 10 million Canadians use Twitter specifically for political information and ideas. This makes it the preferred and perhaps unique platform for a speaker with a political message to reach his or her target audience.

[11] The applicants allege that Twitter is the Canadian “town square” where politics is done, political ideas are exchanged, and where access to government and engagement with government officials and politicians is possible. As such, they say that the refusal of Twitter to sell them ad space due to the political content of their message is deeply offensive to the goals of freedom of expression. They submit that a private, foreign actor is preventing them from meaningful participation in the Canadian polity and the government’s failure to protect them is a breach of their freedom of expression under s. 2 (b) of the Charter.

The Toronto Test

[12] In Toronto (City) v. Ontario (Attorney General), 2021 SCC 34 the Supreme Court of Canada dealt with the concept of a positive right to freedom of expression. A positive right is not just one that prevents a government from intruding; but, rather, requires the government to take a step to protect or enhance a right. At para. 17 of the decision, the court explained:

In Baier, however, this Court explained that s. 2(b) may, in certain circumstances, impose positive obligations on the government to facilitate expression. Put differently, while s. 2(b) typically "prohibits gags", it can also, in rare and narrowly circumscribed cases, "compel the distribution of megaphones" (para. 21, quoting Haig, at p. 1035). Hence the Court of Appeal's statement in this case that "[f]reedom of expression is respected, in the main, if governments simply refrain from actions that would be an unjustified interference with it", and that positive claims under s. 2(b) may be recognized in only "exceptional and narrow" circumstances (paras. 42 and 48 (emphasis in original)).

[13] The court then set a test for the exceptional and narrow basis on which a positive right to compel government action to protect freedom of expression may be found to exist:

[25] So understood, these factors can usefully be distilled to a single core question: is the claim grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government has either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression?... To be clear, s. 2(b) does not remove the authority that a legislature has to create or modify statutory platforms, because it does not include the right to access any statutory platform in particular. However, when a legislature chooses to provide such a platform, then it must comply with the Charter (Haig, at p. 1041). [Emphasis added.]

[14] The court went on to clarify what it meant by “substantial interference” with expression at para 27:

…In our view, a substantial interference with freedom of expression occurs where lack of access to a statutory platform has the effect of radically frustrating expression to such an extent that meaningful expression is "effectively preclude[d]" (Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 S.C.R. 815, at para. 33). While meaningful expression need not be rendered absolutely impossible, we stress that effective preclusion represents an exceedingly high bar that would be met only in extreme and rare cases (Baier, at para. 27; Dunmore, at para. 25)…

[28] The height of this bar of effective preclusion is demonstrated by Baier. There, legislation was amended to prohibit school employees from running for election as school trustees, and the Court - applying the Dunmore factors - concluded that no substantial interference with freedom of expression was demonstrated. The claim was grounded merely in access to a particular statutory platform governing school trusteeship, rather than a substantial interference with freedom of expression. And, in any event, there was no interference, substantial or otherwise, with the appellants' ability to express views on matters relating to the education system. Their exclusion from the statutory scheme deprived them only of one particular means of such expression (paras. 44 and 48). [Emphasis added.]

[15] The applicants’ film has not made money. But it has won recognition at film festivals and received critical acclaim. The film and its political message have been expressed publicly.

[16] In this case, the government submits that the applicants are just seeking a megaphone – to speak louder or more effectively. The applicants are not precluded from buying ads or expressing themselves anywhere else they want. Mr. Choudhry noted, however, that the Prime Minister of Canada has some six million followers on Twitter. A speaker needs to purchase promoted tweets to compete with the Prime Minister’s organic reach. That may be so. Or, perhaps, a speaker may need to attract six million people who want to follow him or her to compete with the Prime Minister. Perhaps he or she should run for office to command the reach of the Prime Minister. Does every person in Canada who wishes to speak on a political topic have the right to be assured the same volume as the Prime Minister? Our Twitter streams will be very long indeed.

[17] But, the applicants submit, Twitter is different. This is the new world and Twitter is a necessary facility for public participation in Canada. It has a public dimension and must be regulated to protect us all. To be denied Twitter ads is to be effectively precluded from expressing high value political speech on Twitter and at all.

[18] Despite calling Twitter unique, in their prayer for relief, the applicants seek regulation of “Twitter and other platforms”.

[19] In Toronto, at para. 41, the Supreme Court of Canada rejected a claim that the platform was unique as follows:

Claiming a unique role or dependence on a statutory platform is not the same as claiming a fundamental freedom (Baier, at para. 44). Doing so is simply to seek access to that statutory platform. That is what the City seeks here.

[20] Is this about quality or quantity? Orators at Speakers’ Corner in Hyde Park do not reach the same number of people as those whose letters to the editor are chosen for publication by the private owners of the Times. Neither do they receive the same coverage as given by private TV news outlets to the King.

[21] In my view, this complaint is about the effectiveness of the mode of the applicants’ expression. At para. 39 of Toronto, the Court made the outcome clear:

While diminished effectiveness might be enough to amount to a limit of s. 2(b) in its traditional negative orientation … more is required under the Baier framework. In the context of a positive claim, only extreme government action that extinguishes the effectiveness of expression — for instance, instituting a two‑day electoral campaign — may rise to the level of a substantial interference with freedom of expression; such an act may effectively preclude meaningful expression in the context of the election. That is simply not what happened here. Section 2(b) is not a guarantee of the effectiveness or continued relevance of a message, or that campaign materials otherwise retain their usefulness throughout the campaign.

[22] I note that there is no government action involved here at all beyond its own use of Twitter. Assuming, for the sake of argument, that a case of total government inaction might be actionable in face of a positive obligation to act, I do not explore this in detail. This case also does not involve a statutory platform. Twitter is a private company.

[23] Regardless, private or public, the applicants’ claim is that they were excluded from one means of expression on one platform only. It might be the platform that they think would be best for the commercial exploitation of their film and for obtaining the maximum reach of their political message to the densest single collection of politically interested people. But they are not excluded or precluded from expression. They produced and freely disseminated their film. They have not even been excluded from the rest of Twitter let alone all the other ways of advertising films whether online, by podcast, through other social media, at film festivals, in the trades, on TV, in magazines, in the press, by mail, by radio, by billboard, etc. If everything pleaded is true, including the current practical importance of Twitter to the Canadian political scene, the applicants cannot show they have been effectively precluded from meaningful expression in the context of advertising a film with a political theme. Therefore, they cannot meet the legal test to assert a positive right to compel the government to act against or to regulate Twitter and other platforms.

Justiciability

[24] The government submits that the questions submitted by the applicants are not justiciable. As there is some narrow scope for a positive rights case, it cannot be that a plaintiff is precluded simply from asking the government to act.

[25] However, the applicants’ second head of relief, that identifies and effectively balances political inputs for Parliament, is far beyond anything the court can undertake. While political speech is recognized as deserving of protection, all expression short of hate and violence is also protected. The applicants would have the court tell the government that it must force Twitter to protect their political speech but let Twitter ban all other speech and, en passant, protect Twitter’s right not to be compelled to speak, if any. What little case law there is on positive rights suggests that the court may tell the government that it is required to act, but that the balancing of policies and economics is for the government and for Parliament.

[26] A lawsuit is not a public inquiry in which policy alternatives can be studied and weighed. Moreover, with no electoral mandate, no legislative agenda, and no control of the public purse, the court is institutionally unfit for the task. I was not shown any basis in law for the court to set legislative priorities as sought in relief (b). Doing so is well beyond this court’s proper role.

[27] One can sympathize with the applicants’ complaints about foreign private actors managing what may currently be an important resource for Canadian politics. But if the applicants want the government to legislate on the complex topic of international internet regulation, they are in the wrong forum.

[28] This application is therefore dismissed. The parties advise that they have settled costs among themselves.

FL Myers J

Date: December 14, 2022