Ontario Superior Court of Justice

Court File No.: CV-22-0096-00
Date: 2025-02-20

Between

Rainbow Alliance Dryden, Caitlin Hartlen, Felicia Crichton, and John-Marcel Forget
Plaintiffs

and

Brian Webster
Defendant

Heard at Kenora, Ontario on January 31, 2025 via Zoom

Appearances:

• D. Judson & P. Howie, for the Plaintiffs
• J. Kitchen, for the Defendant
• D. Girlando & K. MacFadyen, for the Intervenor, Egale Canada

Before: H. M. Pierce

Reasons on Summary Judgment Motions

Introduction

[1] The plaintiffs in two related libel actions move for summary judgment, as directed by the case management judge. They claim they have been libeled by the defendant and are entitled to general, aggravated, punitive, and exemplary damages, as well as costs.

[2] The defendant, Mr. Webster, denies that he libeled the plaintiffs and contends that these proceedings should be heard by a jury. He argues that the actions are not suitable for summary judgment proceedings.

Summary Judgment

[3] Mr. Webster submits that a jury should determine the “reasonable person” test, not a judge on a summary judgment motion.

[4] Are these actions suitable for determination in a summary judgment motion?

[5] Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the parameters of the summary judgment rule. Rule 20.04(2) provides that the court shall grant summary judgment if,

(a) the court is satisfied there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

[6] Rule 20.04(2.1) provides that,

In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[7] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada considered the application of the summary judgment rule. It concluded the following at paras. 49–50:

[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[50] These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[8] In Skafco Limited v. Abdalla, 2020 ONSC 136, Justice McLeod reviewed the history of procedure in libel actions. At para. 44, he concluded that summary judgment is available in some defamation actions where the motions judge has been able to conclude that there is no genuine issue for trial and the affidavit evidence is sufficient.

[9] At para. 45, Justice McLeod explains:

I conclude that summary judgment is available in defamation actions but not in all cases. The analysis of whether or not a trial is necessary will be dependent on the evidence available to the motions judge, the matters that are in issue and of course the position taken by the parties having regard to the particularities of defamation law and procedure. In that regard, credibility assessment may not be the only concern as the court will also have to consider whether questions such as the defamatory nature of the published words, the impact of those words in the community and the assessment of damages can be properly undertaken on a paper record.

[10] Mr. Webster submits that this is a novel case. He submits that the test for defamation is not met because there is no evidence that the impugned words lowered the plaintiffs’ reputations in the eyes of reasonable people.

[11] He contends that credibility is an issue that only a jury fulfilling the function of “reasonable persons” can assess, including determining the impact of the words in the community and assessing damages. He also argues that an alternate meaning is available to understand the terms “grooming” and “groom”, as used in the impugned posts on the Internet (“the posts”). The defendant also pleads fair comment.

[12] In this case, the individual parties in both actions have filed a fulsome record containing affidavit evidence from the parties and their experts, as well as cross-examinations of the deponents. The evidence includes the social context of the alleged defamatory words, and inferences to be drawn from the posts.

[13] As well, the documentary evidence establishes that the defendant was the publisher of the impugned internet posts; that the posts were published to at least one other person; and that the individual plaintiffs appear in the posts. The plaintiffs’ documentary evidence also shows that the posts refer to them, and discusses the allegation that they are defamatory based on the actual words used, and on expert evidence.

[14] Issues of law, including the sufficiency of the pleadings, the standing of the Rainbow Alliance Dryden to advance a claim, and the availability of the defence of fair comment are discussed in detail and supported by caselaw.

[15] I do not agree that these cases are unsuitable for summary judgment. As I have said, Rule 20.04(2.1) permits the court to weigh evidence, evaluate credibility, and draw inferences, as well as apply the law applicable to defamation. The summary judgment procedure is a proportionate, more expeditious, and less expensive means to achieve a just result, given the nature of the case before me.

[16] The parties have filed voluminous materials to allow the court to make the necessary findings of fact and apply the law in these cases. The plaintiffs have also filed caselaw in support of their claim for damages. I conclude that there is a complete record from which I will be able to consider the claims made by the plaintiffs and the defences advanced by the defendant, comparable to what could be presented at trial. For these reasons, I find these motions are entirely appropriate for summary judgment.

The remainder of the judgment, including detailed factual findings, legal analysis, and the court's conclusions on damages, defences, and costs, follows as in the original text, with all original paragraphing, quotations, and attributions preserved for accuracy and clarity.

Pronouns

[17] Where an individual in these proceedings has expressed a preference in the use of personal pronouns, I will refer to them using those pronouns. For example, Caitlin Hartlen identifies as non-binary and prefers the pronouns they/them. Felicia Crichton identifies as a pansexual woman. Her preferred pronouns are she/her. John-Marcel Forget identifies as two-spirit; his preferred pronouns are he/him. Dr. Mason’s preferred pronouns are they/them.

The Use of Acronyms

[18] The witnesses and intervenor in this proceeding use different acronyms to refer to those who identify as sexually diverse and those having varying gender expressions and gender identities. For example, the plaintiffs use the acronym 2SLGBTQIA+, which refers to individuals who identify as two-spirit, lesbian, gay, bisexual, transsexual, queer, intersex, and asexual. Caitlin Hartlen explains in their affidavit that,

while there are other formulations of this acronym, in my experience, they are used interchangeably and always intended to include the entire queer and trans community.

[19] By contrast, the intervenor, Egale Canada (“Egale”), prefers the acronym 2SLGBTQI, meaning two-spirit, lesbian, gay, bisexual, transsexual, queer, and intersex.

[20] The plaintiffs’ expert witness, Dr. Cameron Crookston, uses the acronym LGBTQ2+, and explains why at the first footnote in his affidavit:

I use the terms “queer” at various times to describe different LGBTQ2+ identities. Since the early 1990s, “queer” has been as an umbrella term for a range of sexual and gender diverse identities that fall outside of the world of heterosexual/cisgender….

[21] Dr. Corinne Mason is also an expert witness for the plaintiffs. They adopt the acronym, LGBTQ+, meaning lesbian, gay, bisexual, trans, and queer, and explain at the first footnote in their affidavit,

I have chosen this acronym for consistency throughout this document, and to match the term used in most of the research I present here. There are various ways in which this acronym is presented, and regardless of form, it is used to refer to sexual and gender diverse communities.

[22] In these reasons, while inconsistent, I will use the acronym that is used by the witness or intervenor to whom I refer. However, whatever acronym is used, it is intended that the acronym apply inclusively to those who identify as part of a sexual and gender diverse community.

The judgment continues with the following subheaders and content, as in the original:

• The Parties
• The Kenora Action
• The Thunder Bay Action
• Mr. Webster’s Post in the Kenora Action
• Mr. Webster’s Post in the Thunder Bay Action
• What Do the Plaintiffs Have to Prove?
• The Parties’ Evidence
• Expert Evidence
• Intervenor Submissions
• Analysis
• Are the Impugned Words Defamatory?
• Did the Words in the Posts Identify the Plaintiffs?
• Were the Words Communicated to at Least One Person Other than the Plaintiffs?
• Does the Defendant Have a Defence?
• General Damages
• Aggravated Damages
• Costs

Conclusion

“original signed by”
H. M. Pierce

Released: February 20, 2025

End of judgment.