Court File and Parties

COURT FILE NO.: CV-22-00680457-0000 DATE: 20231116

ONTARIO SUPERIOR COURT OF JUSTICE

RE: WINDRIFT ADVENTURES INCORPORATED Plaintiff

-and-

CTV-BELL MEDIA INC. MOLLY THOMAS, PAUL HABER, ANTON KOSCHANY, REBECCA LEDGER, FERN LEVITT, CHANTEL DOSTALER, FRANCIS “FRANK” METIVIER, MARCIE MORIARTY and BRITISH COLUMBIA SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS Defendants

BEFORE: Shin Doi J.

COUNSEL: Eric K. Gillespie and John May, for the Plaintiff Carlos Martins and Emma Romano, for the Defendants

HEARD: August 15 and 17, 2023

ENDORSEMENT

[1] The Defendants CTV, a division of Bell Media Inc., Molly Thomas, Paul Haber, and Anton Koschany (collectively, the “CTV Defendants”) and Rebecca Ledger and Fern Levitt (collectively, the “Source Defendants”) (all collectively, the “Defendants”) move under section 137.1 of the Courts of Justice Act for an order dismissing the Plaintiff’s claim.

[2] The Plaintiff which operates a dog-sledding business sued the Defendants for defamation relating to a W5 program episode entitled, “Dogs in Distress”.

[3] The Defendants’ motion is granted. The Plaintiff’s action is dismissed because the action arises from expression that relates to a matter of public interest, the Plaintiff does not meet the merits-based hurdle that there are grounds to believe that the proceeding has substantial merit and the moving party has no valid defence, and the harm is not sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

Facts

[4] The Defendant Bell Media Inc. is a federal corporation that owns and operates CTV. CTV produces and broadcasts a documentary news magazine program called W5 that features investigative, inspirational, and topical stories. The Defendant Molly Thomas is an investigative correspondent for W5 and helped produce the episode entitled, “Dogs in Distress” which aired on February 5, 2022. The Defendants Paul Haber and Anton Koschany are producers of W5. The Defendants Rebecca Ledger and Fern Levitt appeared in the episode.

[5] The Plaintiff Windrift Adventures Incorporated is a corporation that operates a dog sledding kennel and focuses primarily on recreational dog sledding rides at Moonstone and Severn, Ontario. Thomas Pryde and Adrienne Spottiswood are spouses who own Windrift Adventures Incorporated, along with Mr. Pryde’s mother. Windrift Adventures Incorporated is involved in ongoing legal proceedings to challenge the removal of their dogs by animal welfare authorities and the Ontario Animal Care Review Board’s finding that the dogs were in distress. The Ontario Animal Care Review Board found that the dogs’ chains were too short and the dogs had improperly insulated shelters and inadequate bedding. The Chief Animal Welfare Inspector kept dogs in its custody and claimed recovery of costs for their care. The Divisional Court upheld a fine of $505,000 against the Plaintiff.

[6] CTV producers attended some of the hearings as they were working on an episode on dog-sledding. On January 17, 2022, after multiple attempts to contact the Plaintiff with no response, Ms. Thomas, Mr. Haber, and a cameraman appeared on the front porch of the home of Mr. Pryde and Ms. Spottiswood. The family was surprised. Ms. Spottiswood asked CTV to stop videotaping. Mr. Pryde told them to leave and pointed out the “No Trespassing” sign and explained a number of times that their children were traumatized by the situation. CTV did not leave when asked. Mr. Pryde became more upset and CTV finally left the property.

[7] Later that day, Ms. Spottiswood contacted CTV indicating that she would be willing to speak to CTV on behalf of the Plaintiff. On January 19, 2022, Ms. Spottiswood and Mr. Pryde met with CTV at Best Western Orillia Hotel’s conference room for an interview. During the interview, Ms. Spottiswood could feel herself start to have a panic attack and asked to stop filming so that she could collect herself and consult with her lawyers. CTV did not stop filming and Ms. Spottiswood got up and left the room. Ms. Spottiswood had earlier informed Ms. Thomas that she was diagnosed and suffering from post-traumatic stress disorder.

[8] The Plaintiff then arranged for its lawyer, Eric Gillespie, to be interviewed for the episode. On January 20, 2022, CTV conducted the interview with the Plaintiff’s lawyer.

[9] On January 31, 2022, Ms. Spottiswood started to see previews for the W5 episode, “Dogs in Distress.” Once the episode aired on February 5, 2022, Ms. Spottiswood received hate mail and calls. The episode included footage of Ms. Spottiswood in her pajamas on the porch and footage of Ms. Spottiswood experiencing a panic attack during the interview at the Best Western Orilla Hotel.

[10] The Plaintiff commenced a defamation action against the Defendants and others on April 29, 2022. The Plaintiff complained about the following:

a. an episode of W5 broadcast on February 5, 2022 which included the “Dogs in Distress” report (the “Broadcast”);

b. a tweet published on the W5 Twitter account on January 31, 2022 (https://twitter.com/CTVW5/status/1488278973163651074) (the “Tweet”);

c. a Facebook post published on the W5 Facebook page on January 31, 2022 (the “Facebook Post”); and

d. a 30-second video (the “Video”) attached to the Tweet and Facebook Post promoting the Broadcast.

[11] The Plaintiff has agreed not to continue the action against the Defendant Rebecca Ledger and settled with certain other defendants.

Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest

[12] The Defendants bring this motion pursuant to section 137.1 of the Courts of Justice Act which provides as follows,

Dismissal of proceeding that limits debate

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. 2015, c. 23, s. 3.

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. 2015, c. 23, s. 3.

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. 2015, c. 23, s. 3.

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. 2015, c. 23, s. 3.

No further steps in proceeding

(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of. 2015, c. 23, s. 3.

No amendment to pleadings

(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,

(a) in order to prevent or avoid an order under this section dismissing the proceeding; or

(b) if the proceeding is dismissed under this section, in order to continue the proceeding. 2015, c. 23, s. 3.

[13] The Supreme Court of Canada in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 at para 16 explained that s.137.1 is “meant to function as a mechanism to screen out lawsuits that unduly limit expression on matters of public interest through identification and pre-trial dismissal of such actions.” The Court of Appeal in Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129 at para 1 explained that “the provision was designed to discourage the use of strategic litigation to unduly limit expression on matters of public interest; it was to strike a balance to ensure that abusive claims could not proceed but legitimate ones could continue.”

[14] The parties agree the legal test on the motion is as set out in Pointes Protection Association, at para 18:

In brief, s. 137.1 places an initial burden on the moving party — the defendant in a lawsuit — to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. Once that showing is made, the burden shifts to the responding party — the plaintiff — to satisfy the motion judge that there are grounds to believe the proceeding has substantial merit and the moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If the responding party cannot satisfy the motion judge that it has met its burden, then the s. 137.1 motion will be granted and the underlying proceeding will be consequently dismissed.

[15] The Plaintiff concedes that the Broadcast, the Tweet, the Facebook Post, and the Video constitute expression and the subject matter of dog-sledding relates to a matter of public interest. Accordingly, the Defendants do not have the threshold burden of satisfying the court that the proceeding arises from an expression relating to a matter of public interest. The burden now shifts to the Plaintiff which must focus on the remainder of the test above.

Substantial Merit

[16] Given that the parties agree that the expression is a matter of public interest, the Plaintiff has the burden to show that there are grounds to believe that the action has substantial merit and that the Defendants have no valid defence. In Pointes Protection Association, the words “grounds to believe” and “substantial merit” are interpreted at para 49,

Therefore, I conclude from the foregoing exercise of statutory interpretation that for an underlying proceeding to have “substantial merit,” it must 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. In context with “grounds to believe”, this means that the motion judge needs to be satisfied that there is a basis in the record and the law – taking into account the stage of the proceeding – for drawing such a conclusion. This requires that the claim be legally tenable and supported by evidence that is reasonably capable of belief.

In my view, the Plaintiff has not met its burden to show grounds to believe that the action has substantial merit because the essential elements of defamation are missing, the Statement of Claim does not plead grounds other than defamation, and Ms. Spottiswood is not a plaintiff.

[17] The Plaintiff’s claim against the Defendants is framed in defamation. As set out in Bent v. Platnick 2020 SCC 23, [2020] 2 SCR 645, a plaintiff must establish the following in order to establish defamation:

(1) the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

(2) the words in fact referred to the plaintiff; and

(3) the words were communicated to at least one person other than the plaintiff: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.

[18] The Plaintiff argues that images of its dogs and property are used and therefore, the Plaintiff is identifiable. The Plaintiff further objects to those images being used in association with the actions of others which portray the Plaintiff in false and defamatory ways. The Plaintiff cites the words, “Sled Dog Cruelty” superimposed over images of the Plaintiff’s sled dogs. The Plaintiff also cites the words “Canine Cruelty” on the Facebook Post.

[19] The Defendants argue that the Tweet, the Facebook Post, and the Video do not name or identify the Plaintiff nor do they include any words or images that a member of the public could reasonably connect them with the Plaintiff. The Defendants submit that the Tweet, the Facebook Post, and the Video were made to promote the Broadcast and did not identify the Plaintiff. The Defendants submit that the episode deals with five different sled-dog operations in Ontario, Quebec, British Columbia. The Defendants provide context for the words used in the Video and argue that none of the commentary in the Video complained of in the Statement of Claim refer to the Plaintiff.

[20] In my view, it is clear that the words and images in the Tweet, the Facebook Post, and the Video do not name, identify, or refer to the Plaintiff. Hence, an essential element of defamation is missing.

[21] The Broadcast does identify the Plaintiff. The Defendants submit that there are portions of the Broadcast that discuss the Plaintiff: inspection of the premises by animal welfare agents, attendance at the residence of Ms. Spottiswood, interview of Ms. Spottiswood, interview of the Plaintiff’s counsel, and at the end of the episode, the host explains that the Plaintiff is still appealing the removal of the dogs.

[22] The Plaintiff argues that the Broadcast humiliated Ms. Spottiswood and shows Ms. Spottiswood in her pajamas and experiencing a panic attack on camera. The Plaintiff also argues that the CTV Defendants trespassed on to private property and ambushed Ms. Spottiswood and her husband. The Plaintiff complains that adverse information and visuals are used that are highly prejudicial and harmful to the Plaintiff and there is bias and malice by the CTV Defendants. The Plaintiff further complains about violations of news standards and unbalanced reporting.

[23] The Defendants point out that the Statement of Claim does not include a complaint about the image of Ms. Spottiswood and Ms. Spottiswood is not an individual plaintiff. The Defendants submit that any reasonable person would see a series of vignettes, including footage of Ms. Spottiswood talking to the journalist about the length of the tether, and not be confused. The Defendants submit that the image of a dog shown during Ms. Spottiswood’s interview is overlayed with images of the B.C. Sled Dog Code of Practice which was referenced by Ms. Spottiswood in the interview. The Defendants submit that unbalanced reporting does not form part of defamation, and in any event, that CTV sought out a variety of perspectives including the Plaintiff’s perspective.

[24] I agree with the Defendants. The Statement of Claim does not include a complaint about the image of Ms. Spottiswood and Ms. Spottiswood is not an individual plaintiff. I also agree that the Statement of Claim is grounded in defamation and not trespass or negligence. The Plaintiff has not shown that its claim for defamation as against the Defendants has substantial merit.

[25] The Plaintiff submitted during the hearing of the motion that it would amend the Statement of Claim to provide additional grounds but then at the end of the hearing of the motion confirmed that it was pursuing defamation and not trespass or negligence. I note that Section 137.1(5) does not permit amendment of the proceeding to prevent or avoid an order under this section dismissing the proceeding; or if the proceeding is dismissed under this section, in order to continue the proceeding, unless a judge orders otherwise.

[26] Lastly, it is questionable whether the reputation of the Plaintiff would be lowered in the eyes of a reasonable person because the Plaintiff’s reputation was already tarnished by the charges under the Provincial Offences Act and removal of dogs by Ontario’s Animal Welfare Services in 2021. In the Statement of Claim, there is an example of a hate email received by the Plaintiff but it is dated 2021 prior to 2022 when the Broadcast was aired.

[27] I conclude that the essential elements of defamation are missing, and the underlying claim is not legally tenable. Therefore, there are no grounds to believe that the Plaintiff’s claim against the Defendants has substantial merit – a real prospect of success.

Valid Defences

[28] I now turn to valid defences of the Defendants. Section 137.1 requires the Plaintiff to show that there are grounds to believe that the moving party has no valid defence in the proceeding. In Pointes Protection Association at paras 56 to 58, the Supreme Court of Canada explains,

---the moving party (i.e. defendant) must first put in play the defences it intends to present and the responding party (i.e. plaintiff) must then show that there are grounds to believe that those defences are not valid. In other words, once the moving party has put a defence in play, the onus is back on the responding party (i.e. plaintiff) to demonstrate that there are grounds to believe that there is “no valid defence”. The word no is absolute, and the corollary is that if there is any defence that is valid, then the plaintiff has not met its burden and the underlying claim should be dismissed. As with the substantial merit prong, the motion judge here must make a determination of validity on a limited record at any early stage in the litigation process – accordingly, this context should be taken into account in assessing whether a defence is valid. The motion judge must therefore be able to engage in a limited assessment of the evidence in determining the validity of the defence.

[29] The Defendants rely on the defences of justification, fair comment, and responsible communication. The Plaintiff fails to show that those defences are not valid.

[30] The Plaintiff argues that the defences are defeated once malice, or even a lack of prudence and care is demonstrated. The Plaintiff further argues that the Defendants did not believe what they published was true is generally conclusive evidence of malice, save in the exceptional case in which a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person. The Plaintiff argues that the CTV Defendants knew that the Plaintiff had never been accused of or engaged in acts of animal cruelty but used photos of the Plaintiff’s dogs with the words “Sled Dog Cruelty” imprinted over them. The Plaintiff then complains about the demeanour of an interviewer or journalist and the use of ambush interviews or trickery.

[31] In my view and assessment, the Defendants’ defences of justification, fair comment, and responsible communication are valid. The Tweet, the Facebook Post, the Video did not refer to the Plaintiff. A reasonable person viewing the Broadcast would understand that the Plaintiff is involved in ongoing proceedings and that the Plaintiff disagrees with the standards and objects to the animal care orders. Further the Defendants focused on the industry not just the Plaintiff’s operation. The Defendants allowed the Plaintiff’s story to be told through Ms. Spottiswood and then the Plaintiff’s lawyer and reported on the news. Broad sources were consulted in the Defendants’ reporting. The Source Defendants did not make any comments pertaining to the Plaintiff, specifically, so there was no malice as against the Plaintiff. The CTV Defendants’ goal was to report on a matter of public interest and chose the Plaintiff due to the ongoing animal care proceedings. Malice was not a dominant motive in including the Plaintiff in the Broadcast. The Defendants would satisfy the elements of the defences of justification, fair comment, and responsible communication as set out in the caselaw (Grant v. Torstar, 2009 SCC 61, Guergis v. Novak, 2013 ONCA 449, WIC Radio Ltd. v. Simpson, 2008 SCC 40).

The Harm, Causal Link, and Weighing of Public Interest

[32] The last part of the requirement in s.137.1(4)(b) is that the Plaintiff must satisfy the motion judge that the harm likely to be or have been suffered by the Plaintiff 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. In Pointes Protection Association at para 68, the Supreme Court of Canada explains,

Harm is principally important in order for the plaintiff to meet its burden under s.137.1(4)(b). The statutory provision expressly contemplates the harm suffered by the responding party as a result of the moving party’s expression being weighed against the public interest in protecting that expression. As a prerequisite to the weighing exercise, the statutory language therefore requires two showings: (i) the existence of harm and (ii) causation – harm suffered as a result of the moving party’s expression.

Either monetary harm or non-monetary harm can be relevant to demonstrating (i) above…

[33] The Plaintiff does not meet its burden to show that the impugned expressions caused sufficiently serious harm such that the public interest in allowing the proceeding to continue outweighs the public interest in protecting those expressions.

[34] The Plaintiff claims in the Statement of Claim that the impugned expressions have severely damaged the Plaintiff’s credibility and reputation in the community, have seriously impacted the financing standing of its business and seriously risked and damaged the mental health of Ms. Spottiswood, her husband Mr. Pryde, and their children. The Plaintiff places great emphasis on the harm done to Ms. Spottiswood shown in night clothes and experiencing a panic attack - vulnerable person with mental health issues.

[35] The Defendants argue that the Plaintiff has led no evidence of harm to its business that could be attributable to the impugned expressions. The Defendants submit that the Plaintiff’s credibility and reputation in the community were already damaged prior to the Tweet, the Facebook Post, the Video, and the Broadcast. The Defendants further argue that there is no evidence of loss of goodwill by the Plaintiff. The Defendants submit that there were numerous reports in the media about the Plaintiff in 2021 and accordingly, the Plaintiff did not have any goodwill. The allegation that the Plaintiff was mistreating its dogs appeared in the media prior to the Broadcast.

[36] The Defendants again argue that Ms. Spottiswood is not a plaintiff. The Defendants submit that there may be other causes of harm including two motor vehicle accidents impacting Ms. Spottiswood and Mr. Pryde, the pandemic, the removal of the dogs, and the fines charged.

[37] I agree with the Defendants that the harm suffered by the Plaintiff is questionable and falls short of “sufficiently serious”. Further, the causal link between the impugned expressions and the harm is weak. There may be sources other than the impugned expression that may have caused the Plaintiff harm. The chronology of events indicates that the animal welfare charges and related proceedings occurred well in advance of the publication of the Tweet, the Facebook Post, the Video, and the Broadcast. It is also clear in the chronology that Ms. Spottiswood suffered mental health issues prior to that publication. As discussed above, the hate email example in the Statement of Claim is dated October 5, 2021 before the 2022 events at issue in the proceeding.

[38] “Once the harm has been established and shown to be causally related to the expression, s. 137.1(4)(b) requires that the harm and corresponding public interest in permitting the proceeding to continue be weighed against the public interest in protecting the expression” (Pointes Protection Association, para 73). While the harm has not been established and shown to be causally related to the expression, I will proceed to weigh the public interest.

[39] The Plaintiff argues that the Broadcast promotes illegal activity – people coming on to property illegally. The Plaintiff submits that it is not a Canadian value to protect illegal activity and therefore, there is public interest in permitting the proceeding to continue.

[40] The Defendants submit that the litigation is silencing people. Every single source was sued by the Plaintiff. The CTV Defendants argue that the litigation has prevented further participation in the discourse pertaining to dog-sledding. The CTV Defendants have not re-aired the Broadcast with updates and the public is being denied information about the ongoing story as a result of the litigation.

[41] I conclude that the harm and corresponding public interest in allowing the Plaintiff’s action to continue does not outweigh the deleterious effects on expression and public participation.

Disposition

[42] For the reasons above, I order that the Plaintiff’s action against the Defendants be dismissed. The parties may send me their submissions on costs, up to 5 pages in length.

Shin Doi J.

Date: November 16, 2023