COURT FILE NO.: CV-23-00091476-0000
DATE: 2023/08/11
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Gavin Leeb, Kristine Barr and Canadian Union of Public Employees
Applicants
– and –
Lloyd Kenny
Defendant
Benjamin Piper, for the Applicants
Self-represented respondent
HEARD: July 25, 2023
REASONS FOR DECISION
WILLIAMS J.
The moving parties, the plaintiffs, seek an order granting an interlocutory injunction restraining the defendant or any person acting on his behalf from publishing, posting or reposting communications that are defamatory or harassing of employees and officials of the Canadian Union of Public Employees, including the plaintiffs Gavin Leeb and Kristine Barr.
The plaintiffs’ concern is with a Facebook profile, “Cupe Member”.
The respondent, the defendant Lloyd Kenny, is a former Winnipeg School Division employee. Mr. Kenny belonged to a CUPE local in Manitoba.
Mr. Kenny has been identified as the individual responsible for the “Cupe Member” profile. The profile was created around October 2019.
Posts about Mr. Leeb and Ms. Barr have been featured prominently on the “Cupe Member” profile. These posts have included comments about Mr. Leeb and Ms. Barr as well as photographs of them and photographs of or references to some of their family members. Mr. Leeb and Ms. Barr say they have been personally attacked, defamed, and harassed through the “Cupe Member” profile.
Adjournment request denied
Mr. Kenny requested an adjournment of the motion. Mr. Kenny said he needed an adjournment because he does not have a lawyer. He also said the action should be transferred to Manitoba. Mr. Kenny said there is other litigation involving the same parties ongoing in Manitoba. He also said that if the action were in Manitoba, he would be able to attend in person rather than virtually. Mr. Kenny said he has been diagnosed with post-traumatic stress disorder and that an in-person hearing would enable him to have another person attend with him, which would be helpful for him.
The statement of claim was served on Mr. Kenny on April 24, 2023. The motion materials were served on him on May 25, 2023. The motion was adjourned, reluctantly, by Muszynski
J. on June 13, 2023, at Mr. Kenny’s request.
In her endorsement, Muszynski J. noted that Mr. Kenny had indicated as early as May 7, 2023 that he intended to retain counsel.
It appears, then, that Mr. Kenny has been attempting to retain counsel for 2.5 months. I have no reason to conclude that a further adjournment would increase the likelihood that he will retain counsel.
With respect to Mr. Kenny’s submission that the action should be transferred to Manitoba, there was no motion requesting a stay of the action or any relief of this nature. CUPE and Mr. Leeb are based in Ottawa. The plaintiffs were entitled to start their action in Ottawa. While Mr. Kenny may have preferred an in-person hearing, the default format for motions in Ottawa is now virtual. The Ottawa-based moving parties’ counsel and the Winnipeg-based Mr. Kenny were on a level playing field, both having attended virtually. There is no reason Mr. Kenny could not have had a support person with him during the virtual hearing.
In her June 13, 2023 endorsement, Justice Muszynski said that Mr. Kenny had been advised that he should retain counsel as soon as possible but, regardless, he should be prepared to proceed with the motion at the next attendance.
I am not unsympathetic to the challenges faced by self-represented litigants, but I must consider the interests of all parties. The plaintiffs wanted the motion to be heard. The motion had already been adjourned once. Mr. Kenny was warned that the motion would proceed at the next appearance.
For these reasons, I denied Mr. Kenny’s request for an adjournment.
Order for interlocutory injunction granted
- The test for an interlocutory injunction is well-known. Three elements must be established:
that there is a serious issue to be tried;
that the moving parties would suffer irreparable harm if an interim and/or interlocutory injunction is not granted; and
that on a balance of convenience, an interim and/or interlocutory injunction should be granted. (RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 SCR 311 at p. 334.)
Serious issue to be tried
The moving parties have pleaded defamation, intentional infliction of mental stress and internet harassment.
I have carefully reviewed the affidavits of Mr. Leeb and Ms. Barr, with a particular focus on the content of the posts from the “Cupe Member” profile.
Paragraph 13 of the moving parties’ factum dated June 23, 2023 describes what the moving parties characterize as some of the clearest examples of posts that are defamatory, harassing, and abusive. These examples include the following:
• A photo of Mr. Leeb with the caption: “CUPE National Legal director Gavin Leeb, did Shannon tell you to stick it where the sun does not shine when you tried to bully her into silence? CUPE pays you a lot of members (sic) dues for you to be acting as the official CUPE bully against union members.”
• A comment to the effect that Mr. Leeb tried to intimidate CUPE members and was a “union lawyer abusing his powers harassing union members as well as helping the Corporation keep members in line.”
• A photo of Ms. Barr’s mother with the caption: “Kathy do you think it is right that your baby Kristine Barr used her knowledge to hurt other female union members?”
• A description of Ms. Barr as a “bitch/prick with human beings” and a “typical, unethical, immoral lawyer.” The same post accused Ms. Barr of absenteeism, tardiness and abuse of power.
- On July 1, 2021, the “Cupe Member” profile posted the obituary of Ms. Barr’s father, which had appeared in the Winnipeg Free Press in November 2019. The post identified Ms. Barr’s father as being “CUPE Legal Lawyer Kristine Kimberley Barr’s dad.” The obituary did not suggest that Ms. Barr’s father had any affiliation with CUPE. There did not appear to be any
reason for the obituary to have been posted, more than 1.5 years after it appeared in the Free Press, other than that the connection with Ms. Barr.
Mr. Kenny does not deny responsibility for the “Cupe Member” profile. He says he is exercising his right to freedom of speech.
I am mindful that where an injunction would restrain speech, the party requesting the injunction must establish a high degree of certainty that it will succeed on the issue of liability and that the available defences to a defamation claim will fail. It seems to me highly likely that at least some of the “Cupe Member” posts will be found to be defamatory and highly unlikely that the defamatory portions of those posts will be found to be true, to constitute fair comment or to be privileged. Further, defamation is only one of the causes of action pleaded. As I noted above, the moving parties have also pleaded intentional infliction of mental stress and internet harassment.
Having reviewed the posts about Mr. Leeb and Ms. Barr on the “Cupe Member” profile and having considered the constituent elements of the causes of action pleaded in the statement of claim, I am satisfied that there is a serious issue to be tried in this case.
Irreparable harm without an injunction
The reputation of lawyers is of paramount importance. Clients depend on the integrity of lawyers, as do colleagues. Judges rely upon commitments and undertakings given to them by counsel. Our whole system of administration of justice depends upon the counsel's reputation for integrity. Anything that leads to the tarnishing of a professional reputation can be disastrous for a lawyer. (Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 SCR 1130, at para. 17.)
The comments on the “Cupe Member” profile about Mr. Leeb and Ms. Barr attack the professional reputations of the two lawyers in general terms. Some of the comments go one step further, clearly suggesting that these two lawyers, who work for a union, are actually anti-employee and act in the interests of the employer.
Defamation via the internet can be particularly damaging. “Communication via the Internet is instantaneous, seamless, interactive, blunt, borderless, and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed: Barrick Gold Corp. v. Lopehandia, 2004 12938 (ON CA), at para. 31.
Significantly, the posts from the “Cupe Member” profile have not stopped since the moving parties started their action and brought this motion.
I am satisfied that the plaintiffs, and in particular Mr. Leeb and Ms. Barr, would suffer irreparable harm if an injunction is not granted.
The balance of convenience must favour the interlocutory or interim injunction
- I am satisfied that the balance of convenience favours the injunction. The moving parties seek to restrict only defamatory or harassing posts on the “Cupe Member” profile, not all posts. The defamatory and harassing posts cause harm to the moving parties; restricting the profile’s posts to those that are not defamatory and harassing will cause Mr. Kenny no harm.
Conclusion
For these reasons, the motion is granted.
An order shall be issued granting an interlocutory injunction restraining Mr. Kenny or any person acting on Mr. Kenny’s behalf from publishing, posting or reposting communications that are defamatory or harassing of employees and officials of the Canadian Union of Public Employees (CUPE), including the plaintiff Mr. Leeb and Ms. Barr.
The moving parties did not file the undertaking required by Rule 40.03 of the Rules of Civil Procedure. I agree with the moving parties’ counsel that this is unlikely to be a case in which Mr. Kenny suffers damages as a result of the order I have just made. I find that the undertaking is not required in this case.
Costs
The moving parties and Mr. Kenny both said they were not seeking the costs of the motion.
There shall be no costs of the motion.
Date: August 11, 2023
COURT FILE NO.: CV-23-00091476-0000
DATE: 2023/08/11
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Gavin Leeb, Kristine Barr and Canadian Union of Public Employees
and
Lloyd Kenny
Plaintiffs
Defendants
BEFORE: The Honourable Justice H.J. Williams
COUNSEL: Benjamin Piper, for the Applicants
Self-represented respondent
HEARD: July 25, 2023
REASONS FOR DECISION
Williams J.
Released: August 11, 2023