COURT FILE NO.: 993/17
DATE: 2023/09/07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: William John Armstrong
Plaintiff
AND:
Amir Farahi, Metroland Media Group Ltd., & Torstar Corporation
Defendants
BEFORE: Justice Martha A. Cook
COUNSEL: Sean Flaherty, for the Plaintiff
Ryder Gilliland, for the Defendants
HEARD: March 27, 2023
ENDORSEMENT
[1] The defendants move under subsection 137.1(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) for an order dismissing this defamation action as an impermissible SLAPP suit.
[2] For the reasons set out below, I find that the plaintiff has failed to discharge his burden under subsection 137.1(4) of the CJA and his action must be dismissed.
Background facts
[3] The plaintiff, William Armstrong (“Armstrong”), served as a London City Councillor between 1994-2018.
[4] The defendant, Amir Farahi (“Farahi”), is a public affairs consultant and political commentator.
[5] Between 2015-2018, Farahi wrote a regular column for Our London, a free community newspaper published by the defendant Metroland Media Group Ltd. (“Metroland”). Farahi describes his column as having been “designed as opinion pieces – op-eds” in which he provided comment on a variety of issues of municipal interest.
[6] On February 2, 2017, an article entitled “Conflicting Interests” (the “Column”) written by Farahi was published in Our London. At the time of publication, Our London enjoyed print circulation in the range of 80,000 – 100,000, delivered mainly to residences with some limited distribution through commercial locations in the City of London.
[7] The Column raised questions about Armstrong’s approach to conflicts of interest in relation to two municipal matters.
[8] First, the Column questioned why Armstrong failed to declare a conflict of interest at a January 2018 Community and Protective Services Committee meeting addressing regulation of payday loan and cheque cashing services, when he had previously declared a conflict and declined to participate in debate on the same subject in 2015. The Column challenged Armstrong to explain the change of position to his constituents. The first part of the Column is not squarely at issue in the action.
[9] The second part of the Column went on to report that Armstrong had voted to support the City of London’s plan to construct the East London Community Centre in East Lions Park "despite owning a rental property at a location that puts him in the notification zone" for the proposed building site. The Column suggested that Armstrong’s ownership of property near the East Lions Park development site put him in a position of conflict of interest.
[10] The second part of the Column, with the statements at issue in the action in bold, appear below:
Since 2011, Armstrong has also been an ardent supporter of the city's plan to build the $17-million East London Community Centre at the East Lions Park ahead of other locations available to the city. The 45,000 sq.-ft. facility that is to be constructed by 2018 will feature an indoor pool, gymnasium, multi-purpose activity space and artisan centre.
Sources indicate he has been voting on this matter, despite owning a rental property at a location that puts him in the notification zone of this new facility.
In other words, he would directly benefit from zoning changes due to the
construction of the east community centre at East Lions Park.
If this has changed then the councillor should again provide a clear explanation to his constituents. If not, then he has failed to declare a conflict of interest in accordance with municipal policies.
Councillors are in a position of trust and are accountable for fulfilling their duties with integrity.
Conflict of interest rules assist them in acting honourably and avoiding situations where their private interests may interfere with their public service duties and responsibilities.
These rules strengthen and preserve our democracy. They ought to be respected.
[11] Prior to publishing the Column, late on the afternoon of January 31, 2017 at 4:04 p.m., Farahi sent an email to Armstrong, referenced as an “Urgent Media Inquiry”, notifying Armstrong about the planned Column, and asking him to explain why he had not declared conflicts of interest in the recent municipal matters.
[12] Armstrong’s staff received Farahi’s inquiry in a timely manner, but did not bring it to Armstrong’s attention. Armstrong did not respond to Mr. Farahi’s inquiry in the approximately 23 hours between Farahi’s email and 3:00 p.m. on February 1, 2017 when the Column went to press.
[13] On February 1, 2017, very shortly after publication, Armstrong sent an email to Nelson Parreira, Regional General Manager at Metroland, operating as Our London, denying that he had any conflict of interest in relation to either the payday loan regulation or the East London Community Centre. In response, Metroland denied that the Column was libellous but offered Armstrong equal space in Our London to respond and rebut the Column. Armstrong did not take up the offer.
[14] On February 10, 2017, Armstrong met with Our London editor, Scott Taylor (“Taylor”), to discuss the Column. Taylor’s evidence is that, during the February 10 meeting, Armstrong conceded that he had received notice of the Column and did not respond in a timely way because his staff had “dropped the ball” in failing to alert him to the urgent media inquiry. Armstrong denies he conceded the adequacy of the notice, and states that he demanded an immediate retraction of the Column.
[15] Armstrong and Taylor met again on February 24, 2017 to discuss the Column. During that meeting, Taylor confirmed that Metroland intended to stand by the Column but affirmed its willingness to publish Armstrong’s written response. Again, Armstrong did not take up the opportunity to publish a written response to the Column.
[16] On March 2, 2017, Armstrong served a libel notice to Metroland. The notice asserted that the “reader of the [Column] is left with the impression that Mr. Armstrong has knowingly and improperly used his position as a Councillor of the City of London to personally benefit from a future zoning change application at East Lions Park to the detriment of the City of London. This is defamatory to Mr. Armstrong.”
[17] Metroland published a correction and apology to Armstrong in the March 16, 2017 edition of Our London, in the space normally reserved for the editor’s comment, which stated:
RETRACTION
In the February 2 issue of Our London, columnist Amir Farahi suggested London City Coun. Bill Armstrong might have a potential conflict of interest because he “would directly benefit from zoning changes due to the construction of the east community centre at East Lions Park.
The reasons Farahi gave were because Mr. Armstrong owns a house in the
notification zone of the new community center and would benefit from zoning changes. In fact, the area did not require rezoning and Mr. Armstrong’s property is beyond the 200-metre notification zone. Therefore, there would be no direct conflict of interest regardless of how Mr. Armstrong voted on the matter.
Our London regrets the error and apologizes to Mr. Armstrong.
[18] After publishing the retraction and apology, Armstrong thanked Taylor for running the retraction and apology. Farahi and Metroland believed that the matter was resolved.
[19] On April 28, 2017, Armstrong issued his statement of claim in this $250,000 defamation action against Farahi, Metroland and Metroland’s owner, Torstar, in respect of the Column. Armstrong pleads that the defamatory sting of the Column is that:
a. The Column states that Armstrong failed to declare and acted in a conflict of interest in relation to discussions and voting on the construction of the East London Community Centre at East Lions Park in London;
b. The Column states that Armstrong would personally benefit from the construction of the East London Community Centre at East Lions Park by virtue of the zoning changes required due to the construction of the community centre;
c. The Column states or infers that Armstrong failed to act with integrity and honorably by knowingly breaching the conflict-of-interest rules to personally benefit from his office; and
d. The Column, by innuendo, states that Armstrong was in breach of the Code of Conduct for Councillors of the City of London and misused his position as a Councillor for personal benefit.
[20] Armstrong did not serve his statement of claim until October 23, 2017.
[21] On October 22, 2018, Armstrong lost his bid for re-election to London City Council.
[22] This action remained relatively inactive until approximately September 2021, when Armstrong served his affidavit of documents and sought dates for examinations for discovery.
[23] The defendants now bring this motion for an order dismissing this defamation action as an impermissible SLAPP suit.
[24] I heard the motion via video conference on March 27, 2023 and reserved my decision at the conclusion of the hearing. While my decision was under reserve, on May 19, 2023, the Supreme Court of Canada released its decision in Hansman v. Neufeld, 2023 SCC 14 [Neufeld]. I received additional written submissions from the parties addressing the Neufeld decision.
Analysis
[25] A strategic lawsuit against public participation, or SLAPP lawsuit, is one initiated not as means to vindicate a bona fide claim, but as a tool to limit the expression and deter participation in public affairs.[^1]
[26] Section 137.1 of the CJA is aimed at weeding out, and terminating at an early stage, SLAPP lawsuits that unduly limit expression on matters of public interest. Section 137.1 provides:
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;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(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 non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.
Order to dismiss
(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.
[27] The analysis under s. 137.1 places an initial burden on a defendant to satisfy the Court that (a) the proceeding in question arises from an expression made by the defendant, and (b) the said expression relates to a matter of public interest.
[28] If a defendant fails to discharge the initial burden, the motion is dismissed, and the action continues toward trial in the normal course. However, if the defendant satisfies the threshold inquiry, then the burden shifts to the plaintiff to satisfy the test under ss. 137.1(4) that:
a. There are grounds to believe that the proceeding has substantial merit;
b. There are grounds to believe that there is no valid defence(s) to the claims; and
c. The harm suffered by the plaintiff as a result of the defendants’ expression is sufficiently serious that the public interest in permitting the plaintiff’s action to proceed outweighs the public interest in protecting the defendants’ expression.
[29] A motion under s. 137.1 is not a motion for summary judgment. It does not involve adjudication of the merits of the underlying action.[^2] Rather, the review is a screening process, normally utilized at an early stage of the proceedings on a limited factual record, used to identify and terminate litigation that would unduly limit expression on matters of public interest. The analysis must remain focussed on the statutory criteria and not devolve into a disguised adjudication on merits.
Does the action arise from an expression relating to a matter of public interest?
[30] To satisfy the threshold burden, the moving party must show on a balance of probabilities that the proceeding arises from an expression made by the moving party or parties, and that the expression relates to a matter of public interest.[^3]
[31] Armstrong concedes, and I agree, that the action arises from the Column written by Farahi and published by Metroland and Torstar, and that the Column is an expression relating to a matter of public interest.
[32] The defendants having satisfied the threshold question, the burden now shifts to the plaintiff to satisfy the three-part test under ss. 137.1(4). The plaintiff must satisfy all three elements of the test, or his action must be dismissed as an impermissible SLAPP lawsuit.
Are there grounds to believe that this proceeding has substantial merit?
[33] The first hurdle for the plaintiff is to satisfy the Court that there are grounds to believe that his claim has substantial merit. In this context, “grounds to believe” means “any basis in the record and law – taking into account the stage of the litigation at which a s. 137.1 motion is brought”.[^4]
[34] To satisfy this burden, the plaintiff must show that his defamation action has a “real prospect of success” and must be “legally tenable and supported by evidence that is reasonably capable of belief.[^5]
[35] To succeed in his defamation action, the plaintiff must establish three elements[^6]:
a. The words complained of were published, meaning that they were communicated to at least one person other than the plaintiff;
b. The words complained of referred to the plaintiff; and
c. 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.
[36] Armstrong asserts that the impugned statements in the Column are clearly defamatory. Armstrong has pleaded that, when the Column is read as a whole, the impugned statements are capable of meaning that:
a. Armstrong failed to declare and acted in a conflict of interest in relation to discussions and voting on the construction of the East London Community Centre at East Lions Park;
b. Armstrong would personally benefit from the construction of the East London Community Centre at East Lions Park by virtue of the zoning changes required due to the construction of the community centre;
c. Armstrong failed to act with integrity and honorably by knowingly breaching the conflict-of-interest rules to personally benefit from his office; and
d. Armstrong acted in breach of the Code of Conduct for Councillors of the City of London and misused his position as a Councillor for personal benefit.
[37] I pause here to note that, in response to this motion, Armstrong asserts that the Column also states that he was in an actual conflict of interest with respect to the payday loan industry in 2015 and again in 2017. Armstrong did not raise this meaning in his libel notice. He did not plead this meaning in his statement of claim. He did not seek leave under ss. 137.1(6) of the CJA to amend his statement of claim. It is not open for him to do so now, in response to this motion. In accordance with s. 137.1, I have limited my analysis to those claims pleaded in Armstrong’s statement of claim.
[38] The defendants concede the first two elements of the test. However, they argue that the Column cannot reasonably bear the meanings alleged by Armstrong. The defendants assert that the purpose of the Column and the impugned statements was “to query why a councillor who previously went to such pains to avoid even the appearance of a conflict of interest where none existed was not taking those same steps in the face of another potential conflict”.
[39] The purpose of the Column does not matter. The only question is whether there are grounds to believe that the Column, read in its full context, would reduce a reasonable person's opinion of the plaintiff.[^7]
[40] In my view, there are ample grounds to believe that Armstrong’s claim in defamation has substantial merit and satisfies the test at s. 137.1(4)(a)(i) of the CJA. An allegation that a public official has acted in a conflict-of-interest position has been found to be damaging to an official’s reputation and is actionable in defamation.[^8] When read in its full context, the Column could reasonably be understood by a fair-minded person to bear the defamatory meanings alleged.
[41] Armstrong has adduced evidence that, within days of publication, he received a text message from a colleague describing the Column as one in which "Farahi is accusing [Armstrong] of multiple conflicts of interest". While the text message does not prove meaning, I accept the text message for the limited purpose of considering whether there are grounds to believe Armstrong’s claim has substantial merit.
[42] Considering the broad impression conveyed by the Column, and evidence of how the Column was received, I am satisfied that there are grounds to believe Armstrong’s claim in defamation has substantial merit. He has satisfied his burden on the first leg of the merits hurdle.
Are there grounds to believe that the defendants have no valid defence?
[43] To satisfy the second leg of the merits hurdle, Armstrong must show that “there are grounds to believe that the defences have no real prospect of success.”[^9]
[44] The defendants have raised the defences of fair comment and responsible communication.
Malice
[45] Armstrong argues that neither defence of fair comment or responsible communication have any real prospect of success because each is defeated by malice.[^10] Armstrong asserts that the Column was part of a broader smear campaign by Farahi against Armstrong in the lead-up to the 2018 municipal election, all at the behest of Shawn Lewis, Armstrong’s challenger, and the ultimately successful candidate in the election. Armstrong further argues that the defendants were so reckless about the truth of statements made in the Column that it is open to a trier to find malice.
[46] I accept that presence of an ulterior motive or recklessness about the truth of underlying facts can support a finding of malice.[^11] However, I am not satisfied that Armstrong has demonstrated that the defences have no real prospect of success on the grounds of malice.
[47] Farahi wrote opinion editorials for Our London for almost three years between 2015 – 2018 on a wide range of municipal issues, yet the Column was the only article Farahi ever wrote about Armstrong. Farahi’s evidence, that the Column was motivated by his “sincere belief that potential conflicts of interest are a pervasive problem in municipal politics and that Mr. Armstrong appeared to be in a conflict-of-interest situation” was not challenged on cross examination.
[48] Armstrong’s theory, that the Column was part of a broader smear campaign concocted by Shawn Lewis and Farahi in the lead up to the 2018 election, is highly speculative. The municipal election was held in October 2018, well over a year after the Column was published.
[49] In response to this motion, Armstrong has adduced extensive evidence about the activities of Blackridge Strategy, a partnership through which Farahi provided political consulting services during the 2018 municipal election. Blackridge Strategy did not come into existence until April 2018, more than a year after the Column was published. There is no factual or temporal connection between the evidence adduced about Blackridge Strategy. Moreover, the evidence is that Blackridge Strategy and Farahi provided services to a great number of candidates running for municipal office. Armstrong’s allegation that somehow the Column was linked to Farahi and Blackridge Strategy a year later is not supported by any evidence.
[50] I am not satisfied on the evidence before me that there are grounds to believe that the Column was actuated by malice. In Botiuk v. Toronto Free Press, 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3, at pp. 34-35, the Court held that malicious conduct is not established merely because a defendant has relied “solely on gossip and suspicion”, or because he is stupid, hasty, rash, improvident or credulous, foolish, unfair, pig-headed or obstinate, or because he was labouring under some misapprehension or imperfect recollection. While some of these descriptors may aptly describe Farahi in relation to the Column, Armstrong has not established grounds to believe that the defences have no reasonable prospect of success on the ground of malice.
[51] I will now consider the other elements of the defences advanced.
Fair Comment on a Matter of Public Interest
[52] The defence of fair comment has five elements:[^12]
a. The comment must be on a matter of public interest;
b. The comment must be based on fact;
c. The comment, though it can include inferences of fact, must be recognisable as comment;
d. The comment must be one that any person can honestly make on the proven facts; and
e. The comment was not actuated by express malice.
[53] Applying the defence of fair comment entails considering whether the impugned statements are comment and whether, as comment, they are supported by facts. The comment must be “an expression of opinion on a known set of facts, and the audience must be in a position to assess or evaluate the comment”.[^13]
[54] Armstrong concedes that the Column constitutes expression on a matter of public interest. The onus is on Armstrong to show grounds to believe that the defendants cannot establish one or more remaining element of the defence such that the defence has no real prospect of success.
Was the Expression Recognizable as Comment?
[55] To constitute fair comment, the statement must be one that would be understood by a reasonable reader as a comment rather than a statement of fact. The threshold is low because of the inherent difficulty in distinguishing fact from opinion particularly in an editorial context. In Neufeld, Karakatsanis J., writing for the majority, observed that “[o]pinions are expressed as facts more often than as personal views, such that statements that may seem to convey fact might be more properly construed as comment.”[^14]
[56] Despite the low threshold, I am satisfied that Armstrong has established grounds to believe that the defendants cannot establish that the Column was recognizable as comment. The interpretation of the Column could, frankly, go either way. Many of the statements in the Column appear to be statements of fact, while others may constitute a value judgment, nor a “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof”.[^15]
[57] I am bolstered in this view by the fact that the defendants themselves appear to have recognized the Column may not be recognized as opinion. Taylor required Farahi to seek Armstrong's comment prior to publication because, in his own words, he considered the Column to be "hard news" that required Farahi to provide Armstrong an opportunity to respond prior to publication.
[58] I am satisfied that Armstrong has demonstrated grounds to believe that the defence of fair comment is not available on the basis that the Column was not recognizable as opinion. Given my finding in this regard, I need not consider the other aspects of the defence as Armstrong has discharged his burden.
[59] I now move on to consider the defence of responsible communication on a matter of public interest.
Responsible Communication on a Matter of Public Interest
[60] The defence of responsible communication on matters of public interest requires the defendants to prove that:
a. the publication was on a matter of public interest; and
b. the publication was responsible in that the defendants were diligent in trying to verify the allegations made.
[61] Because I have already found that the Column was an expression on a matter of public interest, the first element of test has been satisfied.
[62] The question at this stage is whether there are grounds to believe that the defendants have no reasonable prospect of demonstrating that their steps in gathering, verifying and communicating the impugned information were responsible.[^16] The adequacy of the publisher’s diligence is assessed in reference to:
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 lay in the fact that it was made rather than its truth ("reportage"); and
h. any other relevant circumstances.[^17]
[63] I have already found that there are grounds to believe that there is substantial merit to the plaintiff’s defamation clam, the heart of which is that the Column is defamatory for stating that Armstrong failed to declare and acted in a conflict of interest in relation to discussions and voting on the construction of the East London Community Centre at East Lions Park.
[64] This is a reasonably serious allegation, whether the plaintiff acted intentionally or inadvertently. The more serious the allegation, the greater the diligence is required of the publisher prior to publication.[^18]
[65] The defendants argue that they were reasonably diligent in relation to verifying the fundamental facts raised in the Column. In particular, they point to the fact that Farahi sought Armstrong's side of the story before publication at the direction of Metroland. Farahi's email to Armstrong dated January 31, 2017 clearly identified the close proximity of Armstrong's house to the development site as a perceived conflict of interest.
[66] Making inquiries and inviting a response prior to publication unquestionably supports the validity of the defence, but it is not determinative of the issue. Armstrong disputes that he was provided adequate time to respond, having received the inquiry the day prior to publication in circumstances where there was no demonstrable urgency to publication prior to verification.
[67] Beyond reaching out to Armstrong in advance of publication, the defendants offer limited evidence to support their defence of reasonable publication. The defendants’ due diligence efforts appear to be limited to (i) Farahi using Google maps to confirm that Armstrong owned a property in close proximity to the East Lions Park development site, and (ii) making timely efforts to investigate Armstrong’s complaint, retract the erroneous statements and making apology to Armstrong.
[68] The defendants did not refer me to any case where post-publication conduct was considered as a circumstance relevant to assessing the adequacy of the defendant’s due diligence. In my view, timely efforts to investigate complaints of defamation and to retract erroneous and defamatory statements after publication do little to support a defence of responsible communication but may be relevant to damages and, in this motion, to the weighing to be completed under s. 271.3(4)(b) of the CJA.
[69] On cross-examination, Farahi acknowledged that he could not identify the source(s) of his information that Armstrong’s property was located within a “notification zone” or that the development of the community centre would require a change in zoning that may benefit Armstrong.
[70] After considering the steps taken by the defendants in gathering and communicating the impugned information, I am satisfied that there are grounds to believe that the defence of responsible communication is unavailable in the circumstances.
[71] Armstrong has satisfied both aspects of the s. 137.1(4)(a) merits analysis. The inquiry continues to the balancing test found at s. 137.1(4)(b).
Does the public interest in permitting the proceeding to continue outweigh the public interest in protecting the expression?
[72] Section 137.1(4)(b) of the CJA requires this Court to consider whether the harm suffered by Armstrong as a result of the Column is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
[73] The burden remains on Armstrong. To succeed, Armstrong must prove on a balance of probabilities that, due to the harm likely to have been or to be suffered by him as a result of the Column, “the public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation.”[^19]
[74] The s. 137.1(4)(b) test has been described as having two stages, first, the "harm analysis" followed by the "weighing analysis.[^20]
Harm Analysis
[75] The harm analysis involves consideration of the harm suffered or likely to be suffered by the plaintiff as a consequence of the defendant's expression. Accordingly, Armstrong must demonstrate both the existence of harm, and causation.
[76] The presumption of damages in defamation is itself sufficient to demonstrate the existence of harm caused by the expression. Accordingly, Armstrong satisfies the harm analysis.[^21]
Weighing Analysis
[77] The weighing of the public interest in seeing a given proceeding adjudicated on its merits, against the public interest in protecting the expression at issue, is the “fundamental crux” the s. 137.1 analysis.[^22]
[78] The weighing exercise requires the court to consider “what is really going on in the case” with a view to striking the appropriate balance between the protection of individual reputation and freedom of expression, the competing values at the heart of anti-SLAPP legislation.[^23]
[79] The weighing analysis has been described as a "robust backstop" to dismiss even a technically meritorious action if the public interest in protecting the expression that gives rise to the proceeding outweighs the public interest in allowing the proceeding to continue.[^24]
[80] Presumed general damages and bare assertions of harm are insufficient for the weighing exercise. In Neufeld, the Supreme Court specifically rejected the idea that a plaintiff can rely on the presumption of harm in the weighing exercise. Karakatsanis J. wrote, at para. 67:
Although general damages are presumed in defamation law, s. 4(2)(b) prescribes a weighing exercise which requires that the harm to the plaintiff be serious enough to outweigh the public interest in protecting the defendant's expression. While the presumption of damages can establish the existence of harm, it cannot establish that the harm is "serious" (see, e.g., Lachaux v. Independent Print Ltd., [2019] UKSC 27, [2020] A.C. 612, at para. 13; see also United Soils Management Ltd. v. Mohammed, 2019 ONCA 128, 23 C.E.L.R. (4th) 11, at para. 22; Levant v. DeMelle, 2022 ONCA 79, 79 C.P.C. (8th) 437, at para. 68). To hold otherwise would be to presumptively tip the scales in favour of the plaintiff in defamation cases and effectively gut the weighing exercise. Rather, to succeed on the weighing exercise, a plaintiff must provide evidence that enables the judge "to draw an inference of likelihood" of harm of a magnitude sufficient to outweigh the public interest in protecting the defendant's expression (Pointes, at para. 71; Bent, at para. 154). Presumed general damages are insufficient for this purpose, as are bare assertions of harm. (emphasis added)
(a) Magnitude of Harm
[81] Armstrong argues that the impugned statements in the Column caused him very serious harm because the allegations made in the Column attacked his integrity as an elected official, were serious in nature, and struck at the heart of his reputation as a public servant.
[82] Armstrong does provide evidence of any specific pecuniary loss, but asserts that the impugned statements in the Column caused him to lose his bid for re-election in the municipal election in October 2018 after serving in that role for 24 years. Armstrong states that he “continues to suffer from health issues, including anxiety” caused by the Column.
[83] I have no doubt that, as an elected municipal councillor, Armstrong was vulnerable to attack on his reputation and integrity. However, Armstrong has failed to adduce the evidence necessary for me to make any reasonable inference as to the likelihood, magnitude or seriousness of harm suffered by him.
[84] Armstrong baldly asserts that he continues to suffer from health issues, including anxiety, as a result of the Column, but there is no evidence in the record to assist me in understanding the nature and seriousness of his health issues or how they impact him.
[85] Armstrong also baldly asserts that the Column caused him to lose his bid for re-election. While the analysis under s. 137.1(4)(b) does not require full consideration of matters of causation, such bald assertions of harm are insufficient to discharge the burden on Armstrong in the weighing analysis. There is no evidence before me upon which I can reasonably infer the necessary causal link between Armstrong’s electoral defeat and the Column. Moreover, the defendants have identified various other political factors that could account for Armstrong’s electoral loss including the enduring popularity of the winning candidate and Armstrong’s close association with disgraced London mayor Joe Fontana.
[86] Armstrong relies on the case of Kent v. Martin, 2016 ABQB 314 in support of the general proposition that the harm suffered by a political figure subject to defamatory media reporting is substantial. Kent v. Martin involved a situation where a series of defamatory articles appeared in multiple Postmedia outlets across Canada over a period of weeks. The court awarded the plaintiff compensatory damages of $150,000 in circumstances were damages were “exacerbated by the exaggerations and sarcastic tone in the Article, by aspects of Mr. Martin's conduct and by the unfairness to Mr. Kent resulting from Mr. Martin's failure to provide him with an opportunity to respond prior to publication of the Article and the Corporate Defendants' failure to provide him with an opportunity to respond after publication of the Article, while continuing to make the Article available online for more than four years.”[^25]
[87] The circumstances of this case are significantly different than those found in Kent v. Martin. In this case, the Column at issue was a brief article written by a known editorial columnist which appeared in a local community print newspaper. There is conflicting evidence about whether Our London published the Column online and, if so, the extent of its viewership. There is no evidence before me about the number of times the Column may have been accessed online before Our London was shut down in 2018.
[88] Also unlike the situation in Kent v Martin, mitigation is a serious consideration at the weighing stage of the analysis in this case. In defamation law, a defendant can rebut the presumption of damages through various modes of mitigation. The defendants took a variety of steps to mitigate any harm that may have been caused to Armstrong by the Column. The defendants repeatedly offered Armstrong equal space in Our London to respond to the Column. Armstrong refused to take up the offer. The defendants published a retraction and apology. Armstrong thanked the defendants for the effort. Armstrong commenced his action in 2017 shortly after publication, but took no steps to prosecute his claim until late 2021 despite allegations that his reputation had been damaged. The evidence supports an inference that any harm that may have been caused to Armstrong by the Column was fully mitigated before this action was initiated.
(b) Final Balancing
[89] I turn now to consider the crux of the inquiry: has Armstrong satisfied the Court that the harm he suffered as a result of the defendants’ Column is sufficiently serious that the public interest in permitting the plaintiff’s action to proceed outweighs the public interest in protecting the defendants’ expression?
[90] Armstrong argues that the quality of the expression and questionable motivation behind it do not justify the expression being protected from a civil lawsuit. He submits that there is very limited public interest in protecting defamatory statements made in the context of what Armstrong describes as the defendants’ “lazy, unverified and inaccurate” reporting. The minimal interest in protecting such expression is, Armstrong urges, outweighed by the significant public interest in holding media outlets to a standard of fair and accurate reporting.
[91] I find that, despite the factual inaccuracies and carelessness with which the Column was published, the Column constituted political speech touching on the important issue of conflicts of interest and, by extension, the question of whether Armstrong was suitable for continued public office. Political expression lies very close to the core values of s. 2(b) including truth-seeking and participation in political decision-making.[^26] That said, there is no question that defamatory expression is less worthy of protection and the weighing exercise must reflect the fact that Armstrong satisfied the merits analysis and that he appears to have a technical meritorious lawsuit.
[92] After careful consideration of the record, I find that Armstrong has not discharged his burden of demonstrating that the harm suffered by him is sufficiently serious that the public interest in letting him proceed with this action outweighs the public interest in protecting the political expression involved.
[93] In my opinion, what is really going on in this case is not an attempt by Armstrong to remedy legitimate and serious harm suffered as a result of defamatory expression. Rather, it appears to me that Armstrong is seeking retribution against Farahi as a political adversary who he believes played a role in his 2018 electoral defeat.
[94] This lawsuit bears certain troubling hallmarks of an impermissible SLAPP lawsuit. For example:
a. This action is Armstrong’s second defamation action involving expressions on matters of public importance, which supports an inference that Armstrong is using litigation to stifle expression and debate in the political arena, and potentially to punish his political adversaries.[^27] During the 2014 municipal election, Mr. Armstrong’s political challenger revealed that Mr. Armstrong had a historic conviction for sexual assault. The challenger justified revealing the historic conviction because, in her opinion, the conviction supported her characterization of him as a bully and a threat to the safety of others. Despite the revelation and ensuing controversy, Armstrong won re-election. Armstrong sued his unsuccessful political challenger in defamation. That action was ultimately dismissed by the Court of Appeal as an impermissible SLAPP suit: Armstrong v. Corus Entertainment Corp. et al., 2018 ONCA 689;
b. Armstrong issued his claim in this action in April 2017 but did not serve it until late 2017, when both Armstrong and Farahi were gearing up for the 2018 election. Given Armstrong’s theory that Farahi was an ally and operative of Armstrong’s political rival, there are grounds to believe that this action was initiated and served for the strategic purpose of disciplining and intimidating Farahi during the election cycle rather than for the purpose of seeking redress for actual harm; and
c. I am bolstered in this view in light of my finding above that Armstrong has not adduced evidence of substantial damages suffered as a result of the Column.
[95] The weighing analysis is not a science. In this case, I have remained alert to Armstrong’s forceful submissions about the power of the media and the importance of having available means to hold those responsible for careless and damaging reporting to account. This case is a close call. However, in all of the circumstances, I find that Armstrong has failed to satisfy the Court that the harm that he suffered as a consequence of the Column is sufficiently serious that the action should be permitted to proceed.
Conclusion
[96] The Defendants’ motion is allowed, and the action is dismissed.
[97] In the event that the parties are unable to agree on the question of costs, they may file brief written submissions with the court, no more than eight (8) double-spaced pages (exclusive of any costs outline, dockets, offers to settle, or authorities) within 30 days of the release of these reasons. If either party fails to deliver their submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue of costs, and the court may proceed to make turns determination in the absence of their input or give such directions as the court considers necessary or advisable.
Justice M.A. Cook
Date: September 7, 2023
[^1]: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 SCR 587 [Pointes], at para. 2
[^2]: Pointes, supra, note 1, at paras. 37-38
[^3]: Pointes, supra, note 1, at para. 23
[^4]: Pointes, supra, note 1, at para. 39
[^5]: Pointes, supra, note 1, at para. 49
[^6]: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 SCR 640, at para. 28 [Grant]
[^7]: WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 SCR 420 [WIC], at para. 78
[^8]: Roshard v. St. Dennis, 2013 BCSC 1388, at para. 26
[^9]: Pointes, supra, note 1, at para. 59
[^10]: Grant, supra, note 6 at paras. 31, 92; WIC, supra, note 7 at paras. 28, 63
[^11]: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), at para. 171
[^12]: Grant, supra, note 6, at para. 31
[^13]: Mainstream Canada v. Staniford, 2013 BCCA 341, at para. 24. See also WIC, supra, note 7 at para. 34
[^14]: Hansman v. Neufeld, 2023 SCC 14 [Neufeld], at para. 109
[^15]: Ross v. Beutel, 2001 NBCA 62, at para. 56
[^16]: Grant, supra, note 6, at para. 98
[^17]: Grant, supra, note 6, at para. 126
[^18]: Grant, supra, note 6, at para. 111
[^19]: Pointes, supra, note 1, at para. 82
[^20]: Pointes, supra, note 1, at paras. 68-82
[^21]: Pointes, supra, note 1, at para. 71; Bent v. Platnick, 2020 SCC 23, [2020] 2 SCR 645, at para. 144
[^22]: Pointes, supra, note 1, at paras. 18, 62; Neufeld, supra, note 14, at para. 51
[^23]: Pointes, supra, note 1, at para. 81
[^24]: Pointes, supra, note 1, at para. 62
[^25]: Kent v. Martin, 2016 ABQB 314 at para. 291
[^26]: Neufeld, supra, note 14, at paras. 77, 91
[^27]: Pointes, supra, note 1, at para. 80