2012 June 14
Baglow v. Smith, 2012 ONCA 407, reversing 2011 ONSC 5131
The Ontario Court of Appeal unanimously allowed an appeal by the plaintiff blogger, a retired civil servant, from a summary dismissal of his libel action over a posting on a right-wing website. The Court of Appeal held that the issues in the lawsuit should be determined in the normal way at a trial and did not lend themselves to a determination on a motion for summary judgments on affidavits, particularly because “they arise in the relatively novel milieu of internet defamation in the political blogosphere.” The Court of Appeal noted that summary judgment has “rarely been granted in defamation cases, probably because the courts have recognized that the threshold over which a statement must pass in order to be capable of being defamatory of a plaintiff is relatively low … and because the question whether a statement is in fact defamatory has long be considered the purview of a trier of fact. Whether impugned words are defamatory of an individual in fact is the type of decision better made on the basis of a full factual record with cross-examination and possibly expert testimony.” The Court of Appeal also held that the following issues, not previously addressed in the case-law in any significant way, should be decided following a full trial:
- Are caustic and strident exchanges on a blog during “a robust and free-wheeling exchange of political views” subject to the standard test for determining whether a statement is defamatory?
- Does “anything go” in exchanges on such a blog?
- Do different considerations apply to other forms of publication on the Internet, such as Facebook or Twitter?
Novel questions of law or mixed law and fact should generally be determined at trial instead of a summary judgment application at an interlocutory stage of proceedings.
The Court also noted: “No expert evidence was tendered (at the summary judgment hearing) concerning the expectations and understanding of participants in blogosphere political discourse. There was simply no evidence as to what the right-thinking person in this context would consider would lower the appellant’s reputation in the estimation of a reasonable reader.”