Court File and Parties
COURT FILE NO.: CV-21-00673704-0000 DATE: 20230424 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KORY TENEYCKE and RUBICON STRATEGY INC., Plaintiffs – and – CHARLES McVETY and CANADA CHRISTIAN COLLEGE AND SCHOOL OF GRADUATE THEOLOGICAL STUDIES, Defendants
BEFORE: Justice E.M. Morgan
COUNSEL: Scott Hutchison and David Postel, for the Plaintiffs Irvin Schein and Jamie Arabi, for the Defendants
HEARD: March 14, 2023
ANTI-SLAPP MOTION
1The Defendants, Charles McVety (“McVety”) and Canada Christian College and School of Graduate Theological Studies (the “College”), of which McVety is president, move under subsections 137.1(3) - (4) of the Courts of Justice Act, RSO 1990, c. C.43 (“CJA”), to dismiss this libel action as being Strategic Litigation Against Public Participation (“SLAPP”). It is McVety’s and the College’s contention that the action has been brought in order to stifle their discussion of matters of broad public interest – vaccine passports, Christian influence in government, and political lobbying.
2The Plaintiffs, Kory Teneycke (“Teneycke”) and Rubicon Strategy Inc. (“Rubicon”), of which Teneycke is president, claim that the discussion by McVety and the College has been false and defamatory. Counsel for Teneycke and Rubicom submit that McVety and the College’s expression on the topic is not carried on as political discussion or policy debate; rather, they perceive it as the spreading of malicious falsehoods designed to damage the Teneycke’s and Rubicon’s reputations.
I. The SLAPP test
3To succeed under section 137.1(3), McVety and the College, as moving parties, must show “that the proceeding arises from an expression made by the person that relates to a matter of public interest”. Teneycke and Rubicon have conceded that the speech and written comments in issue have met this initial hurdle.
4The section provides that if that first part of the test is met, the action is to be dismissed unless certain features of the action set out in section 137.1(4) can be established:
(a) there are grounds to believe that, (i) the proceeding has substantial merit, and (ii) the moving party has no valid defense 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.
5Teneycke and Rubicon submit that the grounds set out in section 137.1(4) are present in this case. It is their view that the claim is meritorious and that the Defendants have no viable defense to the claim. It is also Teneycke’s and Rubicon’s contention that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the defamatory speech.
6McVety and the College, of course, take the opposite view. They see the matter as expressions of truthful facts and responsible communication and/or fair comment on political issues, such that the charge of defamation has no merit and the defenses will prove to be valid.
II. McVety’s speech about Teneycke
7In order to determine whether the action has “substantial merit”, or whether the Defendants have a “valid defense”, it is necessary to take a close look at the allegations of defamatory speech and the context in which they arose. The factual background begins in September 2020, when the College submitted an application to the Postsecondary Education Quality Assessment Board (the “Board”) for a recommendation to the Minister of Colleges and Universities that it be permitted to call itself a university and receive greater degree granting privileges than it had until then enjoyed.
8After months of review, and apparently some suggestions from the Ontario government that the application would be viewed positively, the Board declined to provide the recommendation that the College sought. The decision clearly angered McVety, who responded by creating a website entitled the “Real Reason”. The website’s message blamed what it called the “committee of elites” – i.e. the Board – who it said “cheated CCC [the College] by switching the school's presentation documents and misrepresenting the College to the Ontario government.”
9In a seemingly unrelated but later to become important development, the Ontario government in September 2021 introduced a requirement that all persons show proof of vaccination for COVID-19 before entering restaurants, gyms, etc. Although only two months before that the Premier had stated that he opposed so-called “vaccine passports”, he ultimately announced that talks with the province’s Chief Medical Officer, along with general public concern over successive waves of COVID-19, had caused him to change his mind.
10It was McVety’s expressed view that it was Teneycke, who McVety alleged had lobbied the government on behalf of pharmaceutical companies, who was the “real reason” for the government’s change of heart on vaccine passports. He began to flag in speeches, on the internet, and on social media that Teneycke’s company, Rubicon, is a registered lobby firm that has represented, among other clients, some major pharmaceutical companies and vaccine producers, including Pfizer and AstraZeneca. In addition, McVety emphasized in the run-up to the last provincial election, Teneycke took a leave from his lobby firm and served as campaign manager for the provincial Conservative party.
11McVety also identified that one of Rubicon’s clients is the Counsel of Ontario Universities, who he perceived to be a key stakeholder in the degree-granting and accreditation process, and one that actively opposed the College’s application to achieve university status. This, then, led McVety to announce at a Queens Park press conference that Teneycke not only “represents ... pharmaceuticals…in the caucus, leading the caucus, influencing the caucus, and then benefitting to untold amounts”, but that Teneycke was “on a campaign to drive Christians out of [the Progressive Conservative Party].” At the same press conference, he proclaimed that Teneycke and Rubicon had played a role in the College’s unsuccessful attempt at obtaining university status.
12At around the same time, McVety gave a speech at the College in which he emphasized his accusatory view of Teneycke’s role:
The same Kory Teneycke who happens to be the campaign manager of … the Ontario PC Party, he owns, he’s the C.E.O … and cofounder of Rubicon Strategies. And he has taken a leave of absence to run the Ontario PC Party, which is our Ontario Government. … Let’s take a look at some of his clients. … Innovative Medicines Canada. And they are 42 members of Big Pharma, Pfizer, AstraZeneca … The list is long. There are about 100 mega corporations that have hired this man who is now the campaign chair. I’ll let you draw your own conclusion.
13The Plaintiffs point out that McVety followed up on the College speech by posting a video of it a on a newly created page on the Real Reason website devoted exclusively to Teneycke and entitled the “Kory Page”. Materials posted on the Kory Page all suggest that Teneycke lobbied Premier Ford for vaccine passports. The page exhorts the readers to “Follow the Money” and states that, “Doug's Campaign Manager is Kory Teneycke. Kory is the CEO and Co-founder of Rubicon Strategies, a lobbying firm that represents AstraZeneca, Pfizer (a member of Innovative Medicines Canada) and over 100 other bio-tech and big tech corporations.”
14McVety’s Kory Page then goes on to assert that, “Kory's company is profiting from PC Party decisions like vaccine passports”, and queries, “Is it right for Kory to be intimately involved with PC Party decision-making while his company profits and Ontarians suffer?” The Kory Page culminates in what Plaintiffs’ counsel characterizes as a call for action: “Please call your Member of Provincial Parliament today and ask him or her to work to investigate Kory Teneycke.”
15As the Plaintiffs point out in the motion materials, McVety did not stop there in his written and verbal campaign against Teneycke. Immediately following his speech at the College, he gave an interview with Rebel News in which he associated Teneycke with international corruption scandals:
[T]he premier in New South Wales stepped down for huge bribes and huge money flowing to lobbyists. So, we know that they do this around the world. We know that they’re paying Rubicon huge money. And then Rubicon’s founder and C.E.O. does not just have the ear of the premier. He’s in the caucus. And he, as the campaign manager.
16McVety has authored Facebook posts and purchased Facebook advertisements condemning Teneycke on both the vaccine passport and the Christianity/College fronts:
17McVety’s invectives against Teneycke have on a number of occasions been picked up by other media outlets. Covering his College speech, Queens Park Today and Rebel News regurgitated some of his most prominent themes. As reported in Rebel News:
... McVety alleges that Teneycke has the ear of Premier Doug Ford, which might explain why Premier Ford was dead-set against vaccine passports for the province in July only to do an inexplicable backflip in August stating that a vaccine passport program is a good idea…
In an interview with Rebel News, McVety alleges that Teneycke is also the influencer behind Canada Christian College being denied university credentials. McVety claims the unspoken reason why Teneycke has contempt for his educational institution is due to Teneycke being ‘an atheist.’
18In December 2021, after the issuance of the Statement of Claim in the within action, McVety mass e-mailed members of the Ontario legislature and members of federal Parliament seeking financial help. In the process, he re-stated his double accusation of anti-Christian and pro-pharmaceutical activity by Teneycke:
In the past several years, there has been a vicious campaign to marginalize Christians from society. First, power-hungry bureaucrats stopped Trinity Western University from having a law school. Now, these same forces are trying to stop Canada Christian College from becoming a university. Over the past several months, the College is defending its students and shared the truth about how the government has wronged them.
Now, Kory Teneycke and Rubicon Strategies have now filed a lawsuit against Canada Christian College claiming that ‘Mr. McVety stated: ‘It is spectacular that someone who represents these pharmaceuticals can be in the caucus, leading the caucus, influencing the caucus, and then benefitting to untold amounts.’ The law suit claims that ‘This statement is false’.
Kory and Rubicon want to punish the College for being a whistleblower about their apparent conflict of interest. Now, the College needs to defend the truth; however, this can be very costly.
19Respondents’ counsel submits that all of this invective against Teneycke is demonstrably false and patently malicious. For example, while it is true that Rubicon has represented AstraZeneca and other pharmaceutical companies in its professional lobbying capacity, its work for pharmaceutical clients has not had anything to do with vaccine passports. In that regard, it is false to say that Rubicon, or Teneycke personally, were “profiting from PC Party decisions like vaccine passports.”
20Furthermore, as already indicated, Teneycke was on leave of absence when the vaccine passport issue arose, and had just commenced his leave of absence when the College decision was made by the Minister of Colleges and Universities. Respondents’ counsel submits that in making the accusation that Teneycke has acted in conflict of interest during his stint as PC campaign manager, McVety in effect has falsely accused Teneycke and Rubicon of violating the provisions of the Lobbyists Registration Act, 1998.
21In addition, there is nothing to indicate that Teneycke was in any way involved in the College university accreditation application. And there is certainly nothing to indicate that Teneycke bears any anti-religious animus. The evidence in the record is that Teneycke is himself a Christian; and it is common knowledge in Ontario that the Premier himself is also a Christian. The Plaintiffs therefore submit that the accusation of anti-Christian bias is self-evidently false.
III. Substantial merit
22The “substantial merit” test in section 137.1(4)(a)(i) of the CJA does not represent a high bar. The claim must be shown to 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”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, at para. 49.
23The evidence on a plaintiff’s side has to be stronger than on a motion to strike, which must simply pass the “plain and obvious test”. At the same time, the test under section 137.1(4)(a)(i) is “less stringent…than the ‘strong prima facie case’ threshold, which requires a ‘strong likelihood of success’”: Ibid., at para 51, citing R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 SCR 196.
24In their factum, Defendants’ counsel take the position that there is no substantial merit to the claim, at least insofar as it relates to Rubicon and the College:
68The Defendants concede that the words complained of were published and that they refer to Teneycke. However, the focus of the statements is not on Rubicon and were not made by or on behalf of CCCSGTS. Furthermore, the Defendants deny that those words would tend to lower the Plaintiffs’ reputation in the eyes of a reasonable person because the Plaintiffs had already been identified as potentially being in a conflict of interest, such identification having been made by major media outlets and MPPs.
25With all due respect to Defendants’ counsel, it is difficult to fathom how one could exclude Rubicon from the equation here. Teneycke is introduced as the head of “his lucrative company, Rubican Strategy”, and both are accused of having corrupt or disingenuous motives toward the Defendants. McVety’s exhortation to “follow the money” leads directly into his assertion that, “We know that they’re paying Rubicon huge money.”
26It is both “Kory and Rubicon” who are said to “want to punish the College for being a whistleblower about their apparent conflict of interest”; and, moreover, it is Rubicon who is said to “represent big Pharma such as Pfizer and AstraZeneca” and “who is being paid by an organization with strong ties to Kathleen Wynn, who ferociously attacked Canadian Christian College and Graduate Theological Studies”. And while Teneycke himself is accused of being a lobbyist with a conflict of interest, it is “Kory's company” that is apparently “profiting from PC Party decisions like vaccine passports”.
27If “disparaging the reputation of the plaintiff” in respect of its “work, business…trade,” etc. are among the hallmarks of defamation, it would be entirely artificial to exclude Rubicon from the claim: Lotin v. Gregor, 2019 ONSC 1510, at para 50. Accusing Rubicon of making illicit profits and of being part of a ferociously partisan attack rather than a bona fide policy campaign hits Rubicon at the very core of its business. McVety has declared of Teneycke that “his company profits and Ontarians suffer”. Those words not only meet the definition of defamatory in their meaning; they cannot have been uttered without reference to both Teneycke and Rubicon.
28Defendants’ counsel’s assertion that the impugned statements “were not made by or on behalf of” the College is equally hard to credit. McVety delivered the most prominent of his remarks in his capacity as president of the College and on the grounds of the College. It is the College who owns the Real Reason website, which is in turn where one finds the Kory Page. The College is alleged to have fundraised off the present lawsuit; McVety has written to his donors that “Kory and Rubicon want to punish the College for being a whistleblower”.
29Furthermore, it is the College’s accreditation, not that of any one person, which is said to have been undermined by the Plaintiffs. Teneycke and Rubicon are said to be aligned with forces that are “trying to stop Canada Christian College from becoming a university”. Rebel News reports cite McVety for the notion that “Teneycke is also the influencer behind Canada Christian College being denied university credentials.” The two Plaintiffs have ultimately been identified in the Defendants’ messaging as having been behind those government officials who “cheated CCC [the College] by switching the school’s presentation documents and misrepresenting the College to the Ontario government.”
30I have little hesitation in concluding that “the claim [is] legally tenable and supported by evidence that is reasonably capable of belief”: Pointes, at para 49. The rather outlandish claim of linkage between pharmaceutical lobbying and anti-Christian sentiment itself suggests that a defamation claim is credible. As the Court of Appeal stated in Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, at para 33, there is no need for any closer, “granular analysis” of the impugned words or the claim; it clearly has sufficient merit not to fall into the category of “meritless litigation that served to intimidate and undermine public expression.”
31The disparaging of the Plaintiffs’ business reputation, or the imputing of regulatory and/or criminal offenses committed by the Plaintiffs, suffices to establish that the suit is a genuine claim in defamation: Lotin, at para 50. It is not, in my view, an exercise in censorship by litigation.
IV. No valid defense
32The Supreme Court of Canada has indicated that the query on validity of defenses under s. 137.1(4)(a)(ii) of the CJA mirrors the query on substantial merit under s. 137.1(4)(a)(i). Both entail an assessment of the strength of the claim or of any defenses “as part of an overall assessment under s. 137.1(4)(a) of the prospect of success of the underlying claim”: Pointes, at para 59.
33The Defendants must first set out the defenses they propose are applicable, after which the Plaintiffs must show that there are grounds to believe that those defenses are not valid: Id., at para 56. Further, the court “must make a determination of validity on a limited record at an early stage in the litigation process… [It] must therefore be able to engage in a limited assessment of the evidence in determining the validity of the defense”: Id., at para 58.
a) The defense of truth
34Defendants’ counsel submit in their factum that the defense of truth is valid in the circumstances of the impugned speech. In doing so, they reference, at para 20, a number of supposed truths contained in McVety’s utterances:
Rubicon is compensated for lobbying efforts on behalf of vaccine manufacturers; Rubicon has lobbied for COVID-19 vaccines; Teneycke is tied to the PC Party and the Premier; Teneycke is in a unique position to influence the PC Party and the Premier; The PC Party and the Premier had been opposed to mandatory vaccines and vaccine certificates prior to Teneycke’s leave of absence from Rubicon and his assuming full time duties as campaign manager, and subsequently reversed that position; Teneycke profits personally from Rubicon’s economic growth; and Teneycke has made unfavourable statements about Christians (as defined by McVety) and the PC Party and has caused one such member of the Party, Rick Nicholls, to be ousted from the caucus.
35A number of these statements are indeed true but are at the same time irrelevant or meaningless in context. Rubicon is indeed a registered lobby company that has been on occasion retained by the PC Party; likewise, it does, in fact, charge fees for its services and that pays its executives and employees, etc. But those are background or tangential facts, not the essential defamatory statements.
36By way of analogy, if one says that ‘Mr. X, a smooth-talker who studied at Harvard, is a slickly dressed lawyer out to take money from his clients’, there could be a number of true, but irrelevant facts buried in or surrounding the defamatory statement. The target could be an articulate, well-tailored, Ivy League-educated counsel who charges substantial fees for legal advice and services.
37None of those “truths” would undermine the libelous comment they embody – i.e. that the lawyer is a liar and a cheat. To raise the defense of truth for this type of statement would be too clever by half. The same can be said of the various “truths” surrounding what the Plaintiffs say are the patent falsehoods of McVety’s statements.
38Furthermore, to assert the “truth” of Teneycke saying unfavourable comments about Christians or any other group, “as defined by McVety”, is to say nothing comprehensible at all. The subjective element injected into the supposed defense relegates the analysis of “truth” to the private and inaccessible domain of McVety’s own thoughts.
39To use another analogy, if one says that ‘Mr. X, a lawyer for the Maple Leafs, has said unfavorable things about hockey fans’ (as defined by me), who could say (other than me) whether I am wrong or right? If the defense of truth covered that kind of subjective “truth”, one could always tarnish a target’s reputation with impunity and immunity.
40Other aspects of McVety’s supposed “truths” are not quite as clever; indeed, they are close to nonsensical. It is difficult to take seriously the allegation that the Defendants are somehow “tied” to the Premier and the PC Party. As quoted in paragraph 16 above, McVety has equally inveighed against Teneycke for having “strong ties to Kathleen Wynn”, the current Premier’s Liberal Party opponent in the last election. To say that the ‘tied-to-the-Conservatives’ line is true when the ‘tied-to-the-Liberals’ line is asserted with equal force is to concede that at least one, if not both statements, are fabrications.
b) Repetition of statements made by others
41In addition to the defense of truth, Defendants’ counsel submits, at paragraph 20 of his factum, that McVety’s comments about Teneycke cannot be harmful and defamatory, because “[m]any other entities and individuals have made the same allegations of conflict of interest”. With respect, that appears to be a misapprehension of one of the basic elements of libel law.
42To be clear, McVety does not contend that his re-dissemination of the statements about the Plaintiffs were a form of “innocent dissemination” as where a librarian allows readers to check out a libelous book: Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427 (“SOCAN”), at para. 89. Nor is McVety’s role a passive one as where an internet service provider hosts libelous content but takes no active steps in disseminating it: Bunt v. Tilley, [2006] 3 All ER 336 (QB). For that matter, he did not merely refer to a defamatory publication without repeating its problematic content: Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398.
43Rather, it is McVety’s position that one of the essential elements of defamation is not satisfied since, even if the words are false, they will not have damaged the Plaintiffs’ reputation because they were already published or publicly stated before. As set out in paragraph 68 of Defendants’ counsel’s factum: “[T]he Defendants deny that those words would tend to lower the Plaintiffs’ reputation in the eyes of a reasonable person because the Plaintiffs had already been identified as potentially being in a conflict of interest, such identification having been made by major media outlets and MPPs.”
44There have traditionally been no limits placed on the means or context in which defamatory statements are transmitted to a third party, such that repetition of an already published libel is itself a newly actionable libel: see Crookes v. Newton, 2011 SCC 47, [2011] 3 SCR 269, at para 16, citing Stanley v. Shaw, 2006 BCCA 467, at para. 5, citing Raymond E. Brown, The Law of Defamation in Canada (2nd ed.), vol. 1, at No. 7.3). In the context of the impugned written and spoken statements about Teneycke and Rubicon, McVety admittedly had the mental element that is crucial to a defamation case – i.e. “knowing involvement in the process of publication of the relevant words”: Metropolitan International Schools Ltd. v. Designtechnica Corp., [2011] 1 WLR 1743, at para 49 (QB).
45The Plaintiffs’ claim that McVety’s publication, or re-publication, of false allegations is defamatory does not amount to “a formalistic application of the traditional publication rule”; to the contrary, it “recognizes the importance of the communicative and expressive function in referring to other sources”. In other words, the speeches and written/social media communications in issue here “involve…dissemination of the content and suggests control over both the content and whether the content will reach an audience at all”: Crookes, at paras 25, 26.
46McVety was not only conscious of what he was saying and writing, he communicated his words – whether similar to what others have said or not – with full knowledge and intent to disseminate them and to spread their content to his audience. The fact that other media outlets may have said the same or similar things is no bar to the Plaintiffs’ claim.
c) Fair comment and responsible communication
47The Defendants assert that they have viable defenses based on the separate, but substantially related concepts of fair comment and responsible communication.
48Generally, there are five separate elements that comprise the defense of fair comment: (i) the comment must be of public interest; (ii) the comment must be based on facts referred to in the publication or widely known; (iii) the comment must be recognizable as comment; (iv) the comment must be one that a person could honestly make on the relevant facts; and (v) the comment must not have been actuated by malice: WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 SCR 420, at para 28.
49A similar approach characterizes the defense of responsible communication, although the constituent elements are generally further reduced to two: (i) the statements must be of matter of public interest; and (ii) the speaker/writer/publisher must demonstrate reasonable diligence in attempting to validate the accuracy of the statements made: Grant v Torstar Corp., [2009] 3 SCR 64, at para 126. As with the defense of fair comment, any argument that the impugned statements were communicated with malice, or even negligence, vitiates the defense of responsible communication: Id., at para 125.
50To be clear, I need not, and do not, make a finding of malice here. Rather, I am simply observing that there is evidence before me that may ultimately support such a finding.
51Some of McVety’s assertions – in particular his linkage of the Plaintiffs’ lobbying on behalf of pharmaceutical companies with supposedly anti-Christian positions – are so far-fetched and defiant of logic that they suggest recklessness, or possibly outright fabrication, with respect to the truth, and seem to indicate an ulterior motive for the entire conflict-of-interest allegation. The constant repetition of the conflict allegation against Teneycke, which is entirely centred on his pharmaceutical lobbying and the government’s position on vaccines, and has nothing to do with matters of religion, seems inexplicable coming from McVety as a spokesman for a theological college. Without something more, the presence of the “Kory Page” on the “Real Reason” website is a bizarre and confusing juxtaposition.
52As the Court of Appeal has instructed, the evidence of malice in an anti-SLAPP motion is often “based on the presence of an ulterior motive or recklessness about the truth of the underlying facts, or based on an inference from the appellants’ conduct”: Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, at para 32. In my view, the revelation that McVety blames Teneycke for the government’s rejection of the College’s degree-granting application sheds some much-needed light on his otherwise unlikely communication campaign linking religion and the pharmaceutical industry.
53McVety’s vehemence on the conflict point makes a perverse form of “sense” once there is a suggestion in the record that Teneycke is identified as the supposed “real reason” for the College’s failed application. That is, malice would provide the motivational explanation.
54Both the Court of Appeal and the Supreme Court of Canada have made it clear that in a defamation case, malice may be established by “reckless disregard for, or indifference to, the truth, spite or ill-will, or any indirect or ulterior motive”: Id., at para 31, citing Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130, at para 145. An inference from the evidence that may, but may not at this stage definitively support that finding, suffices to undermine the proposed defenses.
55In an anti-SLAPP motion, the court is entitled to find that the Defendants acted on assumptions without exercising due diligence, and that this may be fatal to their defenses of responsible communication and fair comment: B’nai Brith, at para 33. This suggestion of malice portends an eventual conclusion that the statements spoken by the Defendants were neither fair nor responsible. I emphasize that I am not making any conclusive findings with respect to these defenses or with respect to the presence of malice; but on the record before me, I am satisfied that the action may proceed.
V. The balance of harms
56Counsel for the Defendants submit that the weighing of harms under s. 137.1(4)(b) of the CJA requires that: (i) the Plaintiffs actually suffered harm, and (ii) the harm was incurred as a result of the impugned expression. Citing Pointes, at para 71, counsel go on to argue that the Plaintiffs must provide evidence for the court to draw an inference of likelihood in respect of both the existence of the harm and the causal connection.
57While at the most general level this is an accurate statement about the anti-SLAPP statutory criteria, this is not a summary judgment motion that must delve deep enough into the merits to resolve the lawsuit with finality. Rather, the Court of Appeal has instructed that “a technical, granular analysis is not required”; rather, the court “should step back and ask what is really going on.”: Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, at para 38.
58In this respect, it should be kept in mind that McVety’s statements are alleged to amount to both libel and slander. As Justice Kimmel explained in Lotin, at paras 48-49, libel, which consists of written publications, is actionable per se at common law and damages are presumed: see Campbell v. Cartmell (1999), 104 OTC 349, at para 31 (SCJ). Slander, which pertains to the spoken word, is at common law actionable without proof of special damages where the slander is actionable per se: see Carrington v. Corrigan, 2010 CarswellOnt 4916, at paras. 4 and 7 (SCJ).
59Two of the circumstances which make slanderous comments actionable per se are applicable here: “(a) imputing the commission of a criminal offence; (b) disparaging the reputation of the plaintiff in the way of his or her work, business, office, calling, trade or profession”: Lotin, at para 50, citing A.C. v. Joyce (2016), 2016 ONSC 2164, 130 OR (3d) 114, at para. 123, reversed on other grounds, 2017 ONCA 49. As previously discussed, Teneycke and Rubicon were accused of violating the regulatory strictures on lobbying and conflict of interest, and, obviously, were disparaged in their work/business as professional lobbyists.
60In these circumstances, there is no need to establish special damages – e.g. a loss of some specific amount of business. An examination of what “is really going on”, as the Court of Appeal put it in Park Lawn, will lead to the conclusion that the disparaging of professional reputation is damaging in and of itself, and that the Plaintiffs will ultimately feel the economic pain. This common law notion is also supported by section 16 of the Libel and Slander Act, RSO 1990, c. L.12, which likewise provides that it is not necessary to allege or prove special damages in a defamation claim relating to statements calculated to disparage the plaintiffs in their office or profession.
61This is not a high hurdle for the Plaintiffs to jump, so long as the impugned statements, when read in full context, would tend to reduce a reasonable person’s opinion of them: WIC Radio, at para. 78. Once the broad effect of the impugned words are considered, and it becomes apparent that a reasonable person would consider them to disparage the professionalism and business ethics of the Plaintiffs, there is no more need for an analysis of particular harm: Bernstein v. Poon, 2015 ONSC 155, at paras. 42-44. General damages flow from the defamatory publication, and are designed to compensate for any harm to a plaintiff’s reputation – “often referred to as compensation for the ‘sting’ of the defamation: Id., at para 157.
62Generally speaking, damages in defamation cases consider “the plaintiff’s position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence or refusal of any retraction or apology, the whole conduct and motive of the defendant”: Awan v Levant, 2014 ONSC 6890, at para 192, citing Barrick Gold Corp. v. Lopehandia (2004), 71 OR (3d) 416, at para 30 (Ont CA). There is little doubt on the record that the Plaintiffs will be able to establish some level of general damages in respect of these criteria if McVety’s words about them are determined to be defamatory. Teneycke’s profession and Rubicon’s business will both presumably be harmed: Levant v. DeMelle, 2022 ONCA 79, at para 68.
63In my view, the harm likely to have been suffered by both Plaintiffs as a result of McVety’s words is sufficiently detrimental to their professional and business reputations, and sufficiently serious in that it alleges regulatory breach and illegality, that the action should proceed. The public interest in permitting the Plaintiffs to continue with their claim outweighs any public interest in protecting the Defendants’ expression.
VI. Disposition
64The Defendants’ motion is dismissed. The action may proceed.
65The parties may make written submissions on costs. I would ask Plaintiffs’ counsel to email my assistant short submissions within two weeks of today, and for Defendants’ counsel to email my assistant equally short submissions within two weeks thereafter.
Date: April 24, 2023 Morgan J.