Court File and Parties

COURT FILE NO.: CV-21-00671189-0000

DATE: 2024-05-08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THERESA KIELBURGER, Plaintiff – and – CANADALAND INC., JESSE BROWN, OLUSOLA ADEOGUN, ISABEL VINCENT, MARK SLUTSKY, JAREN KERR, JONATHAN GOLDSBIE AND KIERAN OUDSHOORN., Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Peter Downard, Lily MacLeod, and William McDowell, for the Plaintiff Brendan Hughes, for the Defendants, Canadaland Inc., Jesse Brown, Olusola Adeogun, Mark Slutsky, Jaren Kerr, Jonathan Goldsbie, and Kieran Oudshoorn Iain A.C. MacKinnon, for the Defendant, Isabel Vincent

HEARD: April 23, 2024

ANTI-SLAPP MOTION

[1] This defamation action is in respect of a podcast produced by journalist Jesse Brown (“Brown”) and his media company, Canadaland Inc. and several other Defendants who are related individuals and employees (collectively “Canadaland”). The podcast was broadcast in August 2021 and transcribed and posted on Canadaland’s website. It contained narrative and an interview by Brown with another well-known journalist who is not otherwise part of the Canadaland team, Isabel Vincent (“Vincent”).

[2] Brown/Canadaland and Vincent move to dismiss this action under section 137.1 of the Courts of Justice Act, RSO 1990, c. C.43 (“CJA”).

[3] The Plaintiff is the mother of Craig Kielburger (“Craig”) who, together with his brother Marc, established the WE Charity and related companies commonly known as the WE Organization. The WE Organization, along with the Kielburger brothers, have achieved a level of notoriety in Canada with parliamentary hearings and the publication of a parliamentary report into certain public contracts granted to the organization and allegations of conflict of interest: Dion, Mario, Morneau II Report (Ottawa: Office of the Conflict of Interest and Ethics Commissioner, July 2021), at 38–45.

[4] It is the Defendants’ view that the within defamation action is strategic litigation – a SLAPP suit, as it is commonly known – designed to put an end to any further public debate or journalistic investigations into the history and finances of the Kielburgers and the WE Organization. They submit that the impugned podcast followed years of letters threatening litigation by lawyers for the WE Organization, and that the present lawsuit is a culmination of those threats.

[5] It is the Plaintiff’s view that the Canadaland podcast and Vincent’s participation therein, when considered in the scheme of Canadaland’s continuous coverage of WE and its principals, contains known and intentionally repeated falsehoods. She submits that it is not investigative reporting as it merely repeats stories that have been published before. The Plaintiff further submits, pointing to the fact that the impugned Canadaland podcast is part of a series entitled “True Crime”, that it is part of a smear campaign rather than bona fide journalism.

I. The 1996 article

[6] In August 1996, Saturday Night magazine published an article about the still young WE Organization, then called Free the Children, written by Vincent. Even at that time, the Plaintiff’s son Craig, at the age of 12 years old, had already reached a surprising level of world fame with his anti-child labour campaign. The magazine’s cover had a photo of Craig holding a globe, with the headline “The most powerful kid in the world.”

[7] Shortly after its publication, the Plaintiff served a Libel Notice on Vincent and Saturday Night, and six months later a Statement of Clain was issued with Craig, but not his mother, as plaintiff (the “SN Claim”). The focus of the claim was an allegation contained in the article about the handling of funds by the Plaintiff on behalf of the young organization. According to the Plaintiff, a central portion of the Saturday Night article – what the Plaintiff and her counsel have dubbed the “Money Passage” – suggests a level of financial manipulation and corruption on the Plaintiff’s and her family’s part:

Though donations to the cause continue to pour in. On November 21, 1995, before Craig went to South Asia and upstaged the prime minister, he attended an Ontario Federation of Labour (OFL) convention in Toronto where members spontaneously pledged $150,000, most of which has gone towards building a rehabilitation centre for freed child slaves in India, says Mrs. Kielburger. The money goes directly to the Kielburger family. Free the Children is not a legally registered charity in Canada. Mrs. Kielburger says they are in the process of applying for registered status.

[8] The SN Claim asserted that the meaning of the Money Passage was that “donations are pouring in, they go directly to the Kielburger family (including the pledge of $150,000 by members of the OFL) and the Kielburgers do not account to anyone for them”, and that “the money is not used for the purposes for which it was donated”. It is now acknowledged that the statement that the funds from the OFL went “directly to the Kielburger family” was untrue.

[9] When interviewed by Vincent in advance of the Saturday Night article, the Plaintiff had explained that she did not handle the money for Free the Children and that neither the organization nor anyone in her family had access to the funds. That explanation did not find its way into the Saturday Night article.

[10] Furthermore, the Kielburgers’ accountant, Mac McArthur, wrote Saturday Night a letter dated on November 1, 1996 in which he explained the banking arrangements for Free the Children:

I keep the financial records for FREE THE CHILDREN. Isabel Vincent’s claims about money from the ONTARIO FEDERATION OF LABOUR are just wrong. And damaging. Odd that she or one of the editors of SATURDAY NIGHT never thought to get in touch with me. I think Jane Armstrong of the OFL has already contacted SATURDAY NIGHT. There is a trust account that is managed by the OFL, and not by the Kielburgers. The records here are open to anyone that wants to investigate!

[11] Mr. MacArthur’s note was followed up by a letter to Saturday Night’s editor sent by the OFL’s Jane Armstrong on November 11, 1996:

I am appalled by the article on Craig Kielburger and Free the Children in Saturday Night (November 1996). I am particularly disturbed by the factual error in the sentence, ‘The money goes directly to the Kielburger family.’ The cheque for the project the Ontario Labour Federation supported was made out to the agency in India responsible for the funds. The reporter interviewed me and media coverage would have verified that the cheque was presented to the representative of SACCS at the CLC convention in Vancouver - with 2,000 witnesses present… While reporters do make mistakes now and again, this article appears to be a deliberate attempt to try and destroy the reputation of individuals and the organization, Free the Children.

[12] In July 1999, counsel for Criag served an Offer to Settle the SN Claim. That Offer proposed that either the defendants in that action – i.e. Saturday Night and Vincent – “consent to judgment in the terms hereof”, or, alternatively, “publish a full and fair apology and retraction for the libel”. The parties were unable to arrive at an apology and retraction satisfactory all parties; instead, the defendants agreed to pay Craig $319,000 in return for an order dismissing the action.

[13] Since Craig was still a minor in 1999, the settlement had to be approved by the Court. The dismissal order was issued by Justice Cameron, who directed that the costs portion of the settlement funds be paid to Craig’s counsel and that the damages portion be paid into Court to Craig’s credit when he became of age. The record indicates that the defendants had asked for the settlement to remain confidential, but counsel for Craig refused that request.

[14] In his response to the confidentiality request, Craig’s counsel specifically referenced the reasons for decision in Hunger Project v. Council on Mind Abuse (C.O.M.A.) Inc., 1995 7145 (SCJ). In that case, the Court observed, at paras. 31-32, that in a libel action a “judgment for damages, being both judicial vindication and a dollar award…” It is clear from the reported reasons for decision, at paras. 1-2, that Hunter Project differed from the SN Claim in one important way – the offer to settle there had been rejected by the defendant and the matter had gone all the way to trial with damages awarded against, rather than a settlement payment agreed to by, the defendant. Nevertheless, counsel for Craig in the SN Claim took the “judicial vindication” phrase in Hunter Project to be a principle applicable to a settlement as well as a judgement on the merits.

[15] The record before me contains no response to this correspondence from counsel for the defendants in the SN Claim. The Order ending that action was issued and, in the usual course, is not confidential. No release or apology or any other mutual acknowledgment of the result was provided by either side.

II. The 2021 podcast

[16] Canadaland’s August 2021 podcast, in which Brown was host and Vincent was a guest, revisited the 1996-1999 controversy. The Money Passage that had been the subject of the SN Claim was repeated as a theme of the podcast. Brown and Canadaland promoted the podcast with the preview line: “The White Saviors True Crime”. The Canadaland website page for the show states: “right from the start there were uncomfortable questions about money...”

[17] The podcast itself followed up on this teaser by, in essence, repeating, with one caveat, the false statement that had been the subject of the SN Claim:

Vincent reported that Theresa Kielburger strategized Craig’s press conferences. She also booked his $5,000 for 30-minute speaking appearances, and she deposited hundreds of thousands of dollars in donations directly into the family’s personal bank account. Vincent didn’t accuse the family of stealing, but she did point out that they accepted large charitable donations before they were a legally registered charity.

[18] Plaintiff’s counsel submits that the added words, “Vincent didn’t accuse the family of stealing”, did nothing to contradict Brown’s and Canadaland’s statement that hundreds of thousands of dollars donated for a charitable purpose had not been handled appropriately. It is the Plaintiff’s view that, despite this attempt at a qualifier on the meaning of the original Money Passage, the logical implication that the funds were misappropriated or otherwise misused remained intact.

[19] From the Plaintiff’s perspective, Brown’s and Canadaland’s incorrect reference to the funds being deposited into the Plaintiff’s family account, without any accompanying reference to the information obtained from the We Organization’s accountant and from the OFL’s spokesperson about where the funds were actually deposited, constitutes a repetition of the 1996 libel. Plaintiff’s counsel also note that neither Brown nor anyone else at Canadaland ever reached out to the Plaintiff for comment, and never contacted her for a response to the allegations that were again being made in the August 2021 podcast.

[20] The Plaintiff’s second complaint about the Canadaland podcast has to do with what she views as Vincent’s on-air mischaracterization of the SN Claim settlement and Craig’s description of that settlement. Craig had announced that the payment agreed to by Saturday Night in ending the SN Claim represented “vindication” of him and his organization. When asked about this by Brown in the August 2021 podcast, Vincent responded that Craig’s characterization “really wasn’t the truth.” As she explained it, “because the case never went forward. I mean, I think we went to discovery and then it kind of ended there.”

[21] It is the Plaintiff’s view that Vincent’s words misdescribe the SN Claim settlement. As indicated, the proposed settlement was originally put to Saturday Night and Vincent as a form of vindication. Plaintiff’s counsel submit that Craig’s offer, and its acceptance without qualification and without confidentiality, is indicative of Saturday Night’s and Vinent’s acceptance of that understanding.

[22] Plaintiff’s counsel further contend that Vincent’s characterization of the settlement suggests that Saturday Night may have indeed published the truth since, as they see it, it expresses that the Money Passage allegation has never been resolved to anyone’s satisfaction. When that meaning is attributed to Vincent’s statement, her words can potentially be taken to diminish not only Craig’s reputation but the Plaintiff’s as well. After all, although Craig brought the SN Claim on his own, the central allegation of defamation in that claim – the Money Passage – equally addressed the Plaintiff and her handling of charitable funds on her sons’ behalf.

[23] Vincent, by contrast, posits a different, and rather banal explanation for Saturday Night’s and her 1999 agreement to the SN Claim settlement. She says that the agreement was reached as an economic convenience – that the owner of Saturday Night was in the process of making a major business investment in acquiring a daily newspaper, and his bankers required him to be free of all potential liabilities. Her ‘truth’ about that settlement was that it was handled on her behalf by Saturday Night and was dealt with as a business matter by the magazine and its owner, and not as a journalistic or reputational matter.

[24] While this does not accord with Craig and his lawyer’s view of the settlement in 1999 and the Plaintiff’s view of that settlement today, it does accord with lawyers’ and others’ general understanding of many settlement agreements. A dismissal order such as the one issued in 1999 in the SN Claim, absent any release or written apology, could be the result not of an assessment of the merits of the case but of strictly economic factors.

[25] Plaintiff’s counsel point out that Canadaland’s podcasts draw a substantial audience. The series on the We Organization and the Kielburgers is no exception. Brown stated in cross-examination that Canadaland’s podcasts were downloaded 7,928,412 times in 2021. Downloads of the Kielburger series constituted 6% of the total – i.e. 475,705 downloads, the most frequent of which is the first one featuring the interview with Vincent. These podcases are accessible to the listening audience without charge. The transcript of the podcast is available on Canadaland’s website.

III. The section 137.1 test

[26] Sections 137.1(3) and (4) of the CJA provide:

(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.

(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.

a) Public interest

[27] The first part of the test is met by the Defendants. The Plaintiff concedes that the issue of whether a large amount of money donated for charitable purposes was diverted to private use is a subject in which a significant segment of the community would have a genuine interest in receiving information: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 SCR 587, at para. 27.

[28] This stage of the test requires no further analysis of the impugned statements. As the Supreme Court instructed in Pointes Protection, at para. 28, “it is not legally relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest — there is no qualitative assessment of the expression at this stage.”

b) Substantial merit

[29] At the next stage, the onus shifts to the Plaintiff as respondent to the section 137.1 motion. “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”: Ibid., at para. 18.

[30] Subsections 137.1(4)(a) and (b) provide for a two-part analysis of the substantial merit test. In the first place, the Plaintiff must show that there are grounds to believe that there is substantial merit to the claim. This part of the test is phrased in a way that emphasizes that the test is a preliminary screening of the merits of the action, not a fulsome or definitive analysis of it. In fact, the Supreme Court of Canada has admonished that a motion court is to “engage in only limited weighing of the evidence and should defer ultimate assessments of credibility and other questions requiring a deep dive into the evidence to a later stage, where judicial powers of inquiry are broader and pleadings more fully developed”: Ibid., at para. 52.

[31] Turning first to the merits portion of the test, a libel claim has three components which the Plaintiff must satisfy to be successful: three elements: 1) that the impugned words refer to the Plaintiff; 2) that the impugned words have been published or broadcast to a third party; and 3) that the impugned words are defamatory in the sense that they tend to lower the plaintiff’s reputation in the eyes of reasonable persons: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 SCR 640, at para. 28. As McLachlin CJ pointed out, to establish liability “the plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless”: Ibid.

[32] The first two issues are established by the Plaintiff on the face of the claim and the Canadaland podcast. The Defendants cannot, and do not, deny that the impugned words refer to the Plaintiff, Ms. Kielburger. As noted above, the controversial portion of the podcast started with the phrase, “Vincent reported that Theresa Kielburger…”

[33] Likewise, it is self-evident that the podcast was disseminated to third parties. It was broadcast over the internet and published on Canadaland’s website. Canadaland has a substantial audience and this particular episode was widely heard and read.

[34] As for the Plaintiff’s allegation that the impugned portions of the podcast were defamatory, this is to be evaluated with a view to its meaning to “the ordinary, reasonable, fair-minded reader”: Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 SCR 3, at para. 62. Plaintiff’s counsel submit that this includes implied or indirect meanings that one might draw from the expression at issue, including inferential meanings and interpretations flowing from the impugned phrases: Morgan v. Odhams Press Ltd., [1971] 2 All ER 1156, at 1162-63, 1170, 1185 (HL). The “sting” of the libel “must be determined from the perspective of a ‘reasonable viewer or reader’”: Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 SCR 1130, at para. 27.

[35] The repetition in the podcast that the Plaintiff deposited into her family’s personal bank account funds in the hundreds of thousands of dollars that were donated for a charitable purpose meets this test. While it is accurate to say, as Brown did, that Vincent did not directly accuse the Plaintiff of theft, at least one meaning it conveys – indeed, the most obvious meaning –is that the Plaintiff misused or manipulated the donated funds for an improper personal gain.

[36] To emphasize the point, it is clear to me that there would be nothing newsworthy, and nothing to attract a listener or reader to a podcast, if the sole meaning were the one given to it by the Defendants – i.e. that the funds were received when the charity was in the process of being registered and so in the ordinary course another account was used as a convenience. The “sting”, as both the House of Lords and the Supreme Court of Canada have said, is in the inference of improper conduct and mishandling of substantial funds on the Plaintiff’s part.

[37] Plaintiffs’ counsel go on to argue that the sting of this comment was magnified by the suggestion by Vincent in the podcast that Craig’s and his family’s rights and reputation were not vindicated by the settlement of the SN Claim. The Plaintiff says that it is noteworthy that Vincent’s statement to this effect was made in the context of Brown first indicating that the former editor of Saturday Night still “stands by the story”. Counsel for the Plaintiff submit that the sting is further emphasized by Canadaland’s and Vincent’s expressed view that the SN Claim had been brought not for the purpose of vindicating a wrongfully damaged reputation, but to “send a message” in the sense of a warning or threat that criticism will not be tolerated.

[38] The Plaintiff also takes the view that both Brown/Canadaland and Vincent were equal participants in these defamatory statements. Plaintiff’s counsel characterizes this as a joint tort for which both tortfeasors are responsible: Lysko v. Braley (2006), 2006 11846 (ON CA), 79 OR (3d) 721, at para. 104 (CA). As the Supreme Court has observed, “If one person writes a libel, another repeats it, and a third approves what is written, they all have made the defamatory libel. Both the person who originally utters the defamatory statement, and the individual who expresses agreement with it, are liable for the injury”: Hill, at para. 176.

[39] The evidence in the record supports a listener’s or reader’s reasonable understanding that Canadaland, and Brown as its host, conveyed that the 1996 Money Passage was true and that the Plaintiff had misappropriated or improperly handled large money donations. It is far less clear that Vincent participated in these statements. Her words were carefully chosen and she did not comment on or summarize or repeat the Money Passage the way Brown did.

[40] Likewise, Vincent’s statement, or repetition of the statement, that the Kielburgers engage in litigation in order to “send a message”, should not be understood by anyone as being libelous. Everyone who engages in litigation does so to send a message to the person they view as the wrongdoer. And it is in the very nature of libel cases that the message claimant also intends to send a message to those who read or heard the libel. The Plaintiff’s insistence that the 1999 settlement needed to be made pubic in order to vindicate Craig’s rights and reputation makes this point. The plaintiff in a libel action – whether it is Craig in the SN Claim, the Plaintiff in the present action, or anyone else – engages in litigation to send a message to all that their reputation was sullied and that the defendant’s words were harmful and wrong.

[41] By contrast, a reasonable listener could possibly find that Vincent’s comment with respect to Craig’s announcement of the 1999 settlement lowered Craig’s reputation and, perhaps by extension, the Plaintiff’s. Vincent’s characterization of Craig’s understanding that the settlement equalled vindication as being contrary to “the truth” can be understood in two ways. Some might take Vincent to mean that Craig was a liar and that the Saturday Night article had told the truth about the Plaintiff’s mishandling of charitable money; others might take Vincent to mean that she simply disagrees with Craig’s version of the settlement and that she has her own view of it. The latter meaning would not be libelous while the former one would be; in the circumstances, either meaning is plausible and either understanding could be reached by a reasonable listener or reader.

[42] Accordingly, for the purposes of section 137.1(4)(a)(i) of the CJA, there is substantial merit to the Plaintiff’s claim in respect of Brown’s and Canadaland’s repetition of the Money Passage, but there is no merit in the Plaintiff’s allegation that Vincent participated in that aspect of the podcast. The impugned words in respect of the Money Passage repetition are those of Brown and Canadaland alone.

[43] On the other hand, there is merit in the claim as it relates to Vincent’s statement that Craig’s characterization of the SN Claim settlement as vindication “really wasn’t the truth.” At least one understanding of that comment, although not necessarily Vincent’s own understanding or meaning, is a libelous one. In contrast to that, there is no merit to the Plaintiff’s claim in respect of Vincent’s statement that the Plaintiff and her family members engage in or warn about litigation in order to “send a message”. That comment is not libelous under any reasonable understanding.

c) No valid defence

[44] As with the substantial merit portion of the s. 137.1 test, the ‘no valid defence’ test in s. 137.1(4)(a)(ii) of the CJA does not require a full-blown analysis of any and all possible defenses that the Defendants might raise. The Plaintiff must show not that the Defendants’ defenses fail, but rather that there are grounds to believe that there are no valid defences available to the Defendants.

[45] The Defendants raise three potential defences to the present claim: privilege, responsible communication and reportage, and fair comment.

i) Privilege

[46] In the first place, the Defendants assert that the impugned statements by Brown and Vincent in the Canadaland podcast are privileged as a report of proceedings in court. They rely on the explanation of the Supreme Court of Canada of the applicable common law rule: “The rule of law is that, where there are judicial proceedings before a properly constituted judicial tribunal exercising its jurisdiction in open court, then the publication without malice of a fair and accurate report of what takes place before that tribunal is privileged”: Hill, at para 150, quoting Gatley on Libel and Slander (8th ed. 1981), at 252.

[47] This approach is based on the democratic need for transparency and the policy that court proceedings should be capable of being scrutinized by the public. As the Supreme Court has noted, in this respect section 2(b) of the Charter protects listeners as well as speakers: Edmonton Journal v. Alberta (Attorney General), 1989 20 (SCC), [1989] 2 SCR 1326, at 1338‑40. That said, the privilege extends only to direct reports of proceedings in court; it does not extend to pleadings filed before the matter gets to court or to summaries of or opinions about court proceedings whose publication is not part of the open courts policy: Douglas v. Tucker, 1951 54 (SCC), [1952] 1 SCR 275, at 286.

[48] Plaintiff’s counsel point out that the statement by Brown/Canadaland that the Plaintiff “deposited hundreds of thousands of dollars in donations directly into the family’s personal bank account” does not amount to a privileged report of proceedings in court. It was, if anything, a restatement, in slightly different words, of the Money Passage that had appeared in the 1996 Saturday Night article. Those words were the subject matter of the SN Claim, but that matter never reached court. Its repetition, or paraphrase, is not cloaked in the privilege it might have received had it come directly from a court hearing.

[49] In much the same way, the other statement in the podcast to which there is some merit in calling it defamatory – Vincent’s description of Craig’s characterization of the SN Claim settlement and dismissal order – is not reportage from a court proceeding. It is a gloss on one aspect of the previous legal proceeding, but it is not unadorned reportage of a case in court.

[50] There are, therefore, no grounds for believing that there is a valid defence of privilege in the circumstances of this case.

ii) Responsible communication/reportage

[51] The Defendants, and, in particular, Canadaland, also contend that they have a defence of responsible communication in the present action. That defence, as explained by the Supreme Court, has two components: “First, the publication must be on a matter of public interest. Second, the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances”: Grant, supra, at 98.

[52] As indicated above, there is no doubt that the subject matter of the Canadaland podcast and the impugned words contained therein are of considerable public interest. The Kielburgers and the We Organization have been at the centre of national political controversy in which the public has shown a keen interest.

[53] Importantly, however, the courts have insisted that in order to make out a responsible communication defence, the media “have an obligation to adequately investigate a story to be published, to ensure the accuracy of the facts about any person referred to in the story, and to obtain that person’s side of the story”: Shtaif v. Toronto Life Publishing Co. Ltd., 2013 ONCA 405, at para. 82. Plaintiff’s counsel submit that this crucial element of fairness – the ‘responsible’ component of the responsible communication defence – was omitted by the Defendants.

[54] In preparing the podcast, the Defendants never contacted the Plaintiff. As a result, they never gave her an opportunity to refute the assertion that she had “deposited hundreds of thousands of dollars directly into the family’s personal bank account.” Brown’s explanation of this oversight was that the Plaintiff herself was not a party to the earlier lawsuit, and so it did not seem relevant to him to ask her to respond to the statement he was planning to broadcast.

[55] Whether the Plaintiff was a party to the earlier action, however, is obviously not the issue; the point is that a statement about the Plaintiff has to be put to the Plaintiff so that she can respond. A broadcaster’s duty of fairness extends to any and all targets of their broadcast, not only to those who had previously sued them.

[56] As an aspect of responsible communication, the Defendants also argue that their words in the podcast amount to “reportage”. In principle, reportage exception provides that “the repetition rule does not apply to fairly reported statements whose public interest lies in the fact that they were made rather than in their truth or falsity”: Grant, at para. 120. Having said that, the Supreme Court has a number of qualifiers to this exception from liability: Ibid. The report is considered responsible commentary, and there is no liability even if the reported words are defamatory, if:

(1) the report attributes the statement to a person, preferably identified, thereby avoiding total unaccountability; (2) the report indicates, expressly or implicitly, that its truth has not been verified; (3) the report sets out both sides of the dispute fairly; and (4) the report provides the context in which the statements were made.

[57] Plaintiff’s counsel submit that the requirements of this defence have not been met since it is impossible to say that the podcast sets out both sides fairly. The best example of this is that there is no mention anywhere of the correspondence that the accountant, Mr. MacArthur, or the OFL’s president, Jane Armstrong, had sent to Saturday Night.

[58] The information conveyed in those letters refutes the impugned statement by in Canadaland’s podcast, and it does so explicitly from the one source that is authoritative on the subject. For Canadaland to have left this important point out of its story undermines any factual objectivity that the broadcast may claim.

[59] Taken as a whole, there is no reason to believe that the defences of responsible communication or objective “reportage” will be found to be applicable to the Canadaland podcast.

iii) Fair comment

[60] Finally, the Defendants invoke the defence of fair comment. The elements of that defence were set out in their most recent incarnation by Justice Binnie in WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 SCR 420, at para. 28:

(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 satisfy the following objective test: could any [person] honestly express that opinion on the proved facts?

(e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice.

[61] The essence of the fair comment defence – the feature that distinguishes it from responsible communication or reportage – is that it has a distinctly subjective aspect. To qualify as fair comment, the statement must be, as described by the Supreme Court of Canada, “a mere matter of opinion, and so incapable of definite proof”: Hansman v. Neufeld, 2023 SCC 14, at para. 108.

[62] A statement of fact is capable of being determined to be accurate or inaccurate, while the same determination cannot be made with respect to an opinion based on the personal perspective or preferences of the speaker. ‘The apple is green’ can be responsible communication or objective reportage if true, but not if false; ‘I like green apples’ is not objective and so cannot be proven true or false.

[63] At the centre of the Plaintiff’s claim is one sentence spoken by Brown in the Canadaland podcast which is identified as crucial to the alleged libel: the statement that the Plaintiff “deposited hundreds of thousands of dollars in donations directly into the family's personal bank account.” On its face, that statement is one of fact, not opinion. If true it can be verified as true, and if false it can be exposed as false. The bank account documents and those who deposited money there will reveal the factually correct version of events.

[64] While this is not the place for any definitive finding on the merits, the evidence in the record goes a long way toward establishing that this repetition of the Money Passage is untrue. Brown and Canadaland were aware of, but never mentioned, the accountant’s letter and the OFL’s letter that appear to disprove this allegation about where the funds were deposited. The Plaintiff has reason to believe that Brown, Canadaland, and its related Defendants have no defence of fair comment with respect to this statement.

[65] Turning to Vincent’s impugned words, they are centred on her statement that Craig Kielburger was not victorious in the 1990s SN Claim and that Craig’s characterization of the 1999 settlement of that claim is not the truth. In my reading, this statement is far closer to opinion than fact. While the Plaintiff is convinced, understandably, that the purpose of the settlement with Saturday Night was to vindicate Craig’s and the entire family’s reputation, that was not necessarily the view on the opposing side of that litigation. In view of the two opposing perspectives on the settlement, Vincent appears to have been was using the word “truth” either in its most strictly literal form, as in there was no SN Claim trial and thus no judicial vindication, or in its colloquial form as an expression of opinion, as in ‘my truth’ vs. ‘his truth’.

[66] Either way, Vincent’s statement can be read as expressing her understanding that the purpose of the settlement was to relieve the owner of Saturday Night of a financial burden and nothing more. The settlement, absent a release and apology, was documented only by the dismissal Order – a perfunctory, neutral document that says little about the parties’ relationship or understanding. A reasonable person – especially one who has some knowledge and experience of litigation in general, could readily conclude that Vincent’s view is her entirely plausible opinion of the matter.

[67] Plaintiff’s counsel go on to argue that even if the statement about being victorious in the SN Claim settlement is one of opinion, it is based on an inaccurate factual premise. In this, they rely on the Supreme Court’s observation in WIC Radio, supra, at para 31, that “[i]f the factual foundation is unstated or unknown, or turns out to be false, the fair comment defence is not available.” Plaintiff’s counsel then point to Vincent’s statement in the podcast that the SN Claim settled after discoveries, when, in fact, it settled before discoveries. They state that this is demonstrably untrue, and that his falsehood undermines any fairness in Vincent’s opinion or comment about the nature and meaning of the settlement.

[68] With respect, Plaintiff’s counsel’s characterization of Vincent’s comment is, for want of a better description, far too legalistic. In stating that, “I think we went to discovery and then it kind of ended there”, Vincent’s language was self-evidently more casual than formal or technical. From the point of view of the Rules and the stages of a civil action, Vincent’s recollection was indeed faulty; the action settled after pleadings closed but prior to examinations for discovery taking place. But under the circumstances, and for the lay person, the distinction between pre-discovery and post-discovery is one without any real difference.

[69] It is clear from the causal way in which the statement was made that what Vincent meant – ineloquently for a lawyer but understandable for a non-lawyer – was that the action had not even proceeded through all of the pre-trial steps before it settled, and was therefore never adjudicated on its merits. Vincent was not making a technical point about the procedural steps the parties had undertaken; rather, she was making a more general comment on the claim and about its having come to a sudden and inconclusive end. This view, of course, supports her opinion that Craig was wrong about the settlement being a form of vindication. In her view, the 1999 order implementing the settlement was a value neutral step that ended the litigation without a finding of liability.

[70] On this basis, there is reason to believe that while Brown and Canadaland have no valid defence of fair comment, Vincent does have the prospect of a valid defence of fair comment. Brown’s words in repeating the Money Passage take the form of a statement of fact and the fair comment defence does not apply. Vincent’s words in saying that Craig mischaracterized the SN Claim settlement take the form of an opinion, and the defence of fair comment therefore can apply to them. Vincent’s subjective understanding of her statement affords her the possibility of a fair comment defence.

d) Weighing the public interest

[71] The Supreme Court observed in Pointes Protection, at para. 61, the “crux” of the anti-SLAPP analysis is found in s. 137.1(4)(b) of the CJA. It is in that subsection that “allows motion judges to assess how allowing individuals or organizations to vindicate their rights through a lawsuit — a fundamental value in its own right in a democracy — affects, in turn, freedom of expression”: Bent v. Platnick, 2020 SCC 23, [2020] 2 SCR 645, at para. 139. The contest, in other words, is between two different aspects of the public interest.

[72] In the case at bar, the Plaintiff must demonstrate on a balance of probabilities that she “likely has suffered or will suffer harm, that such harm is a result of the expression established under s. 137.1(3), and that the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation”: Pointes Protection, at para. 82 [emphasis in original]. The first question, therefore, is whether the Plaintiff is likely to have suffered or to prospectively suffer harm.

[73] It is to be kept in mind that general damages are presumed in defamations actions, and, ordinarily, this alone is sufficient to constitute harm: Brent, at para. 144, citing Pointes Protection, at para. 71 and Grant, at para. 28. That said, the extent of the harm is significant here in that it is one ingredient in weighing whether the harm is so serious that the public interest in allowing the defamation action to proceed outweighs the public interest in protecting the expression: Pointes Protection, at para. 70.

[74] In assessing the magnitude of the harm, one must recall that not all harm takes the form of direct pecuniary loss. In fact, in defamation cases, the most severe form of harm is generally considered to be reputational damage. “A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society’s laws”: Hill, at para. 107.

[75] Even if not measured in lost income or profits, the harm inflicted by defamatory words is recognized by the law as being very real. Accordingly, “[t]he purpose of the general damages award is to compensate the plaintiff for loss of reputation and injury to the plaintiff’s feelings, to console the plaintiff, and to vindicate the plaintiff so that the plaintiff’s reputation may be re-established”: Bent, at para. 148, quoting Downard, Peter A. The Law of Libel in Canada, 4th ed. (Toronto: LexisNexis, 2018), at §14.2.

[76] The record leaves me with little doubt about the Plaintiff having experienced an injury to her feelings. She views the repetition of the allegation contained in the Money Passage as an indictment of her honesty tantamount to an accusation of theft or fraud.

[77] In cross-examination, the Plaintiff gave an impromptu, emotional, and apparently heartfelt explanation of the pain she feels in caring for her granddaughter knowing that the child may one day be exposed to the allegation in the podcast that she misappropriated charitable funds. She explained on the record that she has spent her life trying to do good in her family and in society, and to have what she views as character assassination broadcast to an audience and published on the internet for posterity is a very personal form of harm.

[78] The Plaintiff’s testimony in this respect was credible and impactful. It was especially poignant in comparison with the callous disregard of reputation and personal damage expressed by Brown toward the Plaintiff. In attempting to explain why he and Canadaland never sought the Plaintiff’s response to the repeated Money Passage allegation, Brown stated in his sworn affidavit: “[W]e did not seek comment [from the Plaintiff] for the same reason why I didn't seek comment from my own mother; neither of them were involved.”

[79] The statement implies that from Brown’s point of view the Plaintiff’s feelings are worth nothing; he was only concerned to cover himself and his company in the event of an allegation by Craig as former plaintiff in the SN Claim. The fact that he was speaking about the Plaintiff, and imposing personal pain on the Plaintiff by repeating an allegation about her that he was aware had been seriously contested, if not established as entirely false, was seen by him as irrelevant. The cynicism of Brown’s explanation not only accentuates the defamatory sting of his words, but could be considered high handed and oppressive: Hill, at paras. 188-190.

[80] Although the alleged defamation is of an elderly Plaintiff who is no longer active in a business or profession, and so the harm cannot be readily quantified in the way that a business or income loss can be quantified, it is personal and severe. The Plaintiff’s testimony is that it goes to the core of her self-worth and her dignity. As Justice Coté stated in Pointes Protection, at para. 71, “the question here relates to the existence of harm, not its quantification” [emphasis in original].

[81] Once it is established that there is harm to the Plaintiff that flows from the impugned expression, section 137.1(4)(b) requires that the harm and the public interest in having the action proceed be weighed against the public interest in not silencing the expression: Ibid., at para. 73. Importantly, the analysis of the public interest at this stage of the anti-SLAPP test is somewhat different than in section 137.1(3), where any public interest will satisfy the requirement. Instead, in section 137l1(4)(b), the Court has instructed that “the quality of the expression, and the motivation behind it, are relevant here”: Ibid., at para. 74 [emphasis in original].

[82] This stage of the inquiry benefits from examining the impugned expression in light of the core values underlying freedom of expression: “the search for truth, participation in political decision making, and diversity in forms of self-fulfillment and human flourishing”: Pointes Protection, at para. 77, citing R. v. Sharpe, 2001 SCC 2, [2001] 1 SCR 45, at para. 182; Thomson Newspapers Co. v. Canada (Attorney General), 1998 829 (SCC), [1998] 1 SCR 877, at para. 24. The closer the expression is to any of these core values, the greater the public interest in protecting it.

[83] Brown’s sarcasm with respect to the impact of his words on the Plaintiff suggests that there is little public benefit to be gained or serious public interest in his portrayal of her. While the operations of the We Organization and its principals in the Kielburger family have occupied a place close to the pinnacle of Canadian politics and are certainly of public interest, the Plaintiff’s dignity as a worthy and law abiding human being is not in that category.

[84] The courts have confirmed that “gratuitous insults of a serious nature would tilt the balance away from public interest even if the apparent subject matter itself…is itself clearly in relation to a matter of public interest”: Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC 6785, at para. 98, aff’d 2018 ONCA 690. In my view, this principle is apt in the present context.

[85] As already indicated, the courts have repeatedly made it clear that a libel award need not be limited to pecuniary loss or even professional or business reputation: see Rutman v. Rabinowitz, 2016 ONSC 5864, at para. 215, aff’d 2018 ONCA 80. There is a personal element to this type of conduct such that liability in libel can: “a) take account of the distress, hurt and humiliation which the defamatory publication has caused; b) compensate [her] for the damage to [her] reputation; and c) vindicate [her] good name.”

[86] The Plaintiff’s pained response to Brown’s statements and the Canadaland podcast fits well within this description.

[87] The evidence in the record enables me to draw an inference that the likelihood of harm to the Plaintiff is of a magnitude that is greater than the public interest in protecting the impugned expression: Hansman v. Neufeld, 2023 SCC 14, at para. 67. Since the essence of the defamation alleged against Brown and Canadaland is the personal attack on the Plaintiff’s character more than any genuine discourse on the We Organization and its role in Canadian politics, the need for the Plaintiff to vindicate her reputational rights outweighs the need for a public airing of the impugned words.

IV. Conclusion

[88] There is reason to believe that there is substantial merit in the claim against Brown and Canadaland based on the restatement of the Money Passage; in addition, there is no reason to believe that Brown and Canadaland have any valid defence. There is also reason to believe that the harm likely to be or have been suffered by the Plaintiff as a result of Brown’s and Canadaland’s expression is sufficiently serious that the public interest in permitting the action to continue outweighs the public interest in protecting that expression.

[89] There is reason to believe that there may be some merit in the claim against Vincent based on her “really wasn’t the truth” statement about the SN Claim settlement and whether it represents vindication; however, there is also reason to believe that she has a valid defence of fair comment. In light of the existence of a defence, there is no further need to engage in any weighing of the harm to the Plaintiff as a result of Vincent’s expression as against the public interest in protecting that expression.

V. Disposition

[90] The motion by Brown and Canadaland is dismissed. The action will proceed against them.

[91] The motion by Vincent is granted. The action is dismissed as against her.

VI. Costs

[92] The parties may make written submissions on costs.

[93] Since the results are mixed, the sequence of the exchange of submissions on costs is of no particular relevance. I would ask all three sets of counsel to email brief written costs submissions to my assistant within two weeks of today. Counsel for the Plaintiff should indicate separately in their Bill of Costs the amount attributable to the claim against Brown/Canadaland and the amount attributable to the claim against Vincent.

Date: May 8, 2024 Morgan J.