Miscellaneous Cyber Libel Issues
Cases published to June 29, 2023
Click on a Case Name for full text (links off site).
2023 June 29
The Ontario Court of Appeal unanimously dismissed an appeal from conviction for defamatory libel pursuant to s. 300 of the Criminal Code, RSC c. C-46 and allowed the Crown’s appeal to impose a sentence of two years less a day incarceration (instead of an 18 month conditional sentence prescribed by the trial judge). The charges concerned a campaign of defamation which the Court of Appeal held “was clearly designed to destroy [the victim’s] reputation, employment, career and personal relationships, as well as the victim’s ability to travel to the United States where his new family lived. The trial judge had correctly described his role in determining whether the Crown had proved the accused was guilty of disseminating the libels, beyond a reasonable doubt. The Court of Appeal stated the “trial judge began his sentencing decision noting that the primary sentencing objectives for this offence are denunciation and general deterrence, and by recognizing that although [the accused] is a first offender, this was a worst-case example of criminal defamation, ‘a campaign of epic proportions exceeding anything any of us have been able to read about in all of the cases cited for my consideration, in this instance’” and that the trial judge called it “one of the most egregious [offences] she could have committed in the context of s. 300 of the Criminal Code.”
2023 May 24
The Alberta Court of King’s Bench denied a defence application for summary dismissal of defamation claims, ruling that the defendants had not established that the impugned online statements do not refer to the plaintiffs. The plaintiffs complain in this lawsuit about four statements (and their combined effect): (1) a post to the defendant Kenney’s Facebook account; (2) an identical tweet on the defendant Kenney’s Twitter account; (3) linked statements on an Alberta Government “Inquiry Webpage”; and (4) a “Key Findings Document” linked directly to the “Inquiry Webpage”. The Key Findings Document contained a list of “Participants” which included the names of the six plaintiffs.
The Court held that “a reasonable person who saw the social media posts would follow the link to read further about the results of the Inquiry. That link leads to the News Release which refers to ‘Canadian-based environmental initiatives,’ ‘proponents of these campaigns’ and ‘environmental groups.’ The New Release link then would lead that reasonable person to the Key Findings Document and its list of Participants. That is, the actual names of the Plaintiffs are two direct ‘clicks’ away from the original statements of Mr. Kenney.” “The links in the social media posts, the News Release and on the Inquiry Webpage are breadcrumbs leading to the actual subjects: ‘the Participants’. It is not by happenstance that the reader would select the correct series of links to arrive at the Key Findings Document. The path is straightforward.” “Suggesting that an inflammatory social media post, phrased in a way to grab the reader’s attention such that they are more likely to follow the embedded links, cannot be defamatory because the subject of the post is not named until the second direct link is clicked is unrealistic. The argument [by the defendants] urges wilful blindness to the reality of the current forms of communication. The protections of defamation law cannot be avoided simply by using embedded links instead of paragraph returns. This is particularly true for social media venues like Twitter which have a strict word limit for the user: links are virtually necessary for any Tweet more substantial than a comment on the weather.”
2022 December 19
The Ontario Superior Court of Justice dismissed a summary judgment application by the defendant Google LLC ruling that a full discovery and trial are required to resolve issues of fact and law relating to false and negative reviews posted on Google’s online applications, “Google Maps,” “Google Search” and “Local Reviews.” All of the other defendants had previously been noted in default. The Court held that the evidence in this summary judgment motion raised a genuine issue as to whether Google – as an online “broadcaster” within the meaning of the Ontario Libel and Slander Act – published the content of the reviews posted on its “Local Reviews” platform. The Court rejected Google’s argument it was protected by the decision of the Supreme Court of Canada in Crookes v Newton, 2011 SCC 47, stating that decision “was based on the particular nature of hyperlinks, which do not give the host of the internet platform where they appear control over the content of the third party material to which the links provide its users access.” “[Crookes v Newton] should not be applied broadly to extend immunity to publishers for third party content over which they are able to exercise control.” In this case, Google “created the platform on which the allegedly defamatory reviews were posted and admits that it had the power for remove them.”
The Court referred to the decision of the High Court of Australia in Fairfax Media Publications Pty Ltd. v Dylan Voller; Australian News Channel Pty Ltd. v Dylan Voller [2021] HCA 27. In that case, the defendant news media companies were found to be liable for the publication of allegedly defamatory “comments” that were posted on their respective public Facebook pages by third parties. A majority of the High Court of Australia rejected the news media arguments that for a person to be a publisher, they must know of the relevant matter and intend to convey it. “Each appellant, by creating a public Facebook page and posting content on that page, facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users. The appellants were therefore publishers of the third-party comments.”
In this context, the Ontario Superior Court of Justice held “[t]here is a genuine issue of law in the present case as to whether Google, by continuing to provide a platform for the defendants’ defamatory review after receiving notice of them, either in the notices served on Google Canada, or on Google at its offices in the U.S., or in the Statement of Claim subsequently served on it, published the content of the reviews that continued to appear on Google’s platform until Google removed them”.
2022 November 29
The Ontario Superior Court of Justice declined to award libel damages to the plaintiff over videos posted by the defendant on three occasions in May, 2021. “Software programs or ‘apps’ such as WhatsApp, TikTok or Instagram are platforms that, while popular, as not so well known (at least to me) that the general public knows what they are, or how they operate.” “No expert evidence was given about the operation or outward facing dimensions to WhatsApp on which [the defendant] posted the first video in May 2021 to her own account. I have no way of knowing if [the defendant] ‘published’ the video by taking this step, or if posting it was tantamount to filing an entry into an electronic diary or sharing thoughts with a chosen confidant. The court cannot conduct its own research outside of the evidence given on a hearing to determine facts. It is for this reason I have not ‘googled’ how WhatsApp, TikTok or Instagram work. Nor have I visited their websites to read if they are accessible to others, and if so, how a member’s user circle or anyone searching the internet may find them.” “In the absence of evidence on the nature of these platforms and the access available to them by others, I find that [the plaintiff] has not proven that [the defendant has] ‘published’ this video.” The Court held that two other videos posted to TikTok on different occasions were not defamatory. The plaintiff’s remaining claim that a video posted to the defendant’s WhatsApp account publicly placed the plaintiff in a false light warranted an award of $5,000 general damages and $30,390 special damages for the plaintiff’s loss of income as a mortgage agent from July to October 2021. In this regard, the Court reasoned: “While the posting to WhatsApp was not ‘publishing’ in the sense of that term to prove defamation, the posting at source, combined with the reasonable foreseeability that it could be copied to another forum that could publicly place [the plaintiff in a false light], is sufficient to entitled [the plaintiff] to judgment.”
2022 October 25
The Ontario Superior Court of Justice imposed a sentence of 75 days house arrest followed by nine months probation on the Defendant for civil contempt following a defamation verdict made in June, 2022. That defamation verdict (in addition to awarding significant damages to the Plaintiff) required the Defendant to remove any content about the Plaintiff from her social media accounts; prohibited further false or disparaging statements about the Plaintiff; and required the Defendant to post a retraction online.
Instead of complying, the Defendant “doubled down and tweeted ten defamatory comments”. The Court also held that the Defendant “did absolutely nothing to end a crowdfunding campaign launched by her online friend … on GiveSendGo” to support her “campaign”. The GoSendGo statements undermined the June 2022 Order, “perpetuated the myth that what [the Defendant] had said about [the Plaintiff] was true, and falsely suggested that [the Defendant’s] representations were not addressed at the contempt proceedings.” “I do not accept that [the Defendant] was unaware of the campaign content or that she was powerless to stop it.”
The Court noted that the Superior Court of Justice has as a court of inherent jurisdiction broad common law powers to enforce and punish violations of court orders. A contemnor can be committed to jail or subject to any other sanction for a criminal offence. In determining the sentence to impose, the court is guided by the principles of sentencing in the criminal law which are set out in the Criminal Code. Where conduct has been wilful, flagrant, ongoing and damaging, a jail sentence is more likely. The court is still entitled and required to sentence for contempt even after the contempt is purged. Otherwise persons could flagrantly disobey court orders and delay purging until just prior to sentencing.
In addition to ordering house arrest and a period of probation, the court ordered the Defendant to remain at all times in Ontario, to comply with the June, 2022 defamation verdict, to not make any defamatory statements when speaking to others, to carry at all times a copy of the court’s sentencing order, to complete 120 hours of community service, and not make any online statements about the Plaintiff or the legal proceedings involving the Defendant and the Plaintiff. The court also ordered the Defendant to pay substantial indemnity costs to the Plaintiff.
2022 October 14
The Ontario Superior Court of Justice sentenced the Defendant to a period of imprisonment of four months, without any remission. This sentence was to be served immediately after a sentence imposed in Paramount v. Kevin J. Johnston. If the Defendant did not surrender himself to police or the court to serve his sentence in the Paramount case, then a warrant for his arrest was to be issued and specifically brought to the attention of the RCMP and the Canada Border Services Agency.
In this lawsuit, the Defendant regularly breached three court orders requiring him to remove all defamatory broadcasts, articles and other content from everywhere (including any broadcast about this lawsuit) and prohibited the Defendant from broadcasting further defamatory materials about the Plaintiffs or any issue involved in this action.
The court noted that “one of the key principles that should be applied in a sentence, even for civil contempt, is deterrence.” “Even after the contempt Orders were made, [the Defendant] continued to deliberately flout the Orders by continuing to make defamatory statements about the Plaintiffs.” “[The Defendant] demonstrated a history of deliberately delaying this proceeding in order to avoid the consequences of his contempt.” “[The Defendant’ has, on numerous occasions, avoided or minimized his responsibility for the breach of Court orders. He has done this, in part, by refusing to attend at Court proceedings.” “When this history is reviewed, it demonstrates a continuing and deliberate attempt to flout the authority of the Court.” “The only penalty that will make it clear to [the Defendant] that there are consequences to his conduct is a period of incarceration.”
2022 September 28
The Quebec Superior Court rejected a pre-trial motion by TikTok Technology Canada Inc. (“TikTok) to have this defamation action dismissed on the basis an internet intermediary cannot be liable for defamatory content posted by a third party unless it refuses to remove the defamatory content following a demand from the plaintiff. In this case, before filing suit, the plaintiffs sent a formal notice to TikTok on April 14, 2021, identifying the defamatory content, demanding TikTok close the offending account and remove the hastags that identify the plaintiffs. The Arabic-language videos made multiple, serious defamatory accusations. On April 17, 2021 the plaintiffs filed an application for a provisional interlocutory injunction, an interlocutory injunction and a permanent injunction. On April 22, 2021, the Quebec Superior Court issued an interim interlocutory injunction ordering TikTok to suspend the impugned account as well as the hastags. Holding that the lawsuit against TikTok was not clearly doomed to fail, the Court noted that there will be special circumstances where an intermediary such as TikTok must be able to intervene quickly and remove a post that is plainly unlawful and harmful, without confirmation from an independent third party. The Court also asked the rhetorical question: What is the point of TikTok’s automated tool for monitoring content that violates its guidelines if TikTok will not act on its own when objectionable information is discovered, without waiting for independent confirmation from an objective third party? The Court held that the lawsuit should proceed to a full hearing which would illuminate the rules that should apply specifically to TikTok in this situation.
2021 October 4
The Ontario Superior Court of Justice sentenced the defendant to a jail term of three months for each of six acts in contempt of court for total consecutive terms of 18 months for breaching a court injunction prohibiting him from continuing to defame the plaintiff. The court held that the plaintiff, who had endured a court proceeding and obtained a court order, was entitled to be secure in feeling that the law will protect him and his family. “The only way to do so is to remove [the defendant] from the public for a time. No sentencing option short of a jail term will bring compliance with the injunction, protect [the plaintiff], or the public.” The Court stated that “there is a need in this case for a sentence that makes the public sit up and take notice. I am thinking of those who might fear that the civil courts cannot protect them; those who might try to undermine the authority of the court; and the public in general who expect the law of the land to be enforced equally. The court’s order will be enforced. The rule of law requires no less.”
2021 September 16
The Alberta Court of Queen’s Bench ordered the plaintiff’s ex-husband to pay damages aggregating $155,000 for “public disclosure of private facts ” and for overlapping claims of breach of confidence and intentional infliction of emotional distress. This award, which related to the defendant’s conduct in posting private, sexualized images of the plaintiff online, consisted of $80,000 for general damages, $50,000 for punitive damages, and $25,000 for aggravated damages. Some of the images posted became available on pornography sites on the internet.
Recognizing “public disclosure of private facts” as a new common law cause of action in Alberta, the Court quoted, inter alia, from P. Voula Kotoluas and Sienna Molu, “Sexual Aggression and the Civil Response”, Annual Review of Civil Litigation 2018 (WL Can):
“The pernicious effect of online dissemination should set it apart from other forms of invasion of privacy. … There is a real need for an effective remedy to the growing number of victims of revenge porn, which would deter potential perpetrators from engaging in this prevalent form of abuse that, until recently, attracted no real legal consequences.”
The Court also awarded $275,000 to the plaintiff for her claims of sexual assault ($175,000 general damages; $50,000 aggravated damages; and $50,000 punitive damages).
2021 May 10
The Ontario Superior Court of Justice held that a satirical television show broadcast in Pakistan and posted online on the defendant’s YouTube channel arguably defamed the plaintiffs, even though the full name of the corporate plaintiff was not mentioned and the individual plaintiff was not named in the broadcast. The Court stated that evidence indicated the defendant “intended vast reproduction and circulation of its programming worldwide” and concluded the fact unauthorized third parties in Canada acquired the signal illegally from the U.S. should not protect Geo. “That royalty fees are not collected by Geo should not insulate it from liability where, as here, republication is the natural and probable consequence of the original broadcast and of the authorization by Geo to broadcast in the U.S.” In these circumstances, the Court rejected the defendant’s application for a summary judgment dismissing the lawsuit.
2021 May 6
The Superior Court of Quebec made an Order permitting Facebook to submit appropriate evidence to challenge the authorization of a class action. The plaintiff CD was seeking leave to bring a class action over “Dis son nom” and “Victim’s voices” Facebook pages which allow victims of sexual abuse to publicly and anonymously denounce people they allege are potential abusers. The published list includes first and last names and in some instances, an indication of the person’s city or place of work. Facebook sought, inter alia, to introduce evidence of statements by legal counsel for the plaintiff that the main objective of the proceedings is not to obtain monetary compensation, but to change Facebook practices. The Court noted that it is not unusual for a plaintiff, in the context of a defamation action, to state publicly that money is not the primary reason for his or her lawsuit. In any event, modification of injurious behaviour constitutes one the main objectives of collective action.
2021 April 14
The Ontario Superior Court of Justice dismissed a defamation action relating to an English translation of an article posted on a Chinese-language website. The English-language translation “appeared instantaneously when the website visitor click on a Google Translate widget … embedded on the website.” The Court held that “an online publisher that provides a free widget that allows visitors to generate instantaneous automated translations cannot be said to have ‘published’ the translated text and therefore cannot be held liable for statements contained in such translations.” The Court also stated that it was not satisfied the widget-translated article was a reliable translation and that it was “rife with grammatical and typographical errors and inconsistencies.” The Court also noted that a plaintiff may nevertheless advance a claim based on the text of the original article, so long as it is accompanied by an official translation.
2021 January 28
The Ontario Superior Court, granting judgment to multiple plaintiffs in four civil lawsuits against the defendant, asserted that defamation law did not provide adequate remedies to stop the defendant’s long campaign of “vicious falsehoods against those to whom she bears grudges, and towards family members and associates of those to whom she bears grudges.” “Cyber-stalking is the perfect pastime for [the defendant]. She can shield her identity. She can disseminate vile messages globally, across multiple unpoliced platforms, forcing her victims to litigate in multiple jurisdictions to amass evidence to implicate her, driving their costs up and delaying the process of justice. Unrestrained by basic tenets of decency, when she is enjoined from attacking named plaintiffs, she moves her focus to their siblings, their children, their other family members and associates, in a widening web of vexatious and harassing behaviour.”
The defendant’s postings had been disseminated on the internet anonymously, pseudonymously, or by using false names, on internet sites including Ripoff Reports, Reddit, Pinterest, Facebook, Lawyerratingz, cheaters.com, reportcheatingonline, and many others.
Suggesting that the internet has cast the balance between freedom of speech and protection of reputation into disarray, the Court stated: “[T]he law needs better tools, greater inter-jurisdictional cooperation, and greater regulation of the electronic ‘marketplace of ideas’ in a world with near universal access to the means of mass communication. Regulation of speech carries with it the risk of over-regulation, even tyranny. Absence of regulation carries with it the risk of anarchy and the disintegration of order. …[A] situation that allows someone like the [defendant] to carry on as she has, effectively unchecked for years, shows a lack of effective regulation that imperils order and the marketplace of ideas because of the anarchy that can arise from ineffective regulation.” In the Court’s view, even granting a permanent injunction, by itself, would not be sufficient to bring the defendant’s wrongful conduct to an end.
In this context, the Court held that the common law of Ontario should recognize the tort of harassment and that ordering the defendant to stop harassment “provides remedial breadth not available in the law of defamation.” This approach, according to the Court, avoids inappropriately broadening the established test for the tort of wrongful invasion of property. “[T]he tort of internet harassment should be recognized in these cases because [the defendant’s] online conduct and publications seek not so much to defame the victims but to harass them. Put another way, the intent is to go beyond character assassination: it is intended to harass, harry and molest by repeated and serial publications of defamatory material, not only of primary victims, but to cause those victims further distress by targeting persons they care about, so as to cause fear, anxiety and misery.”
The Court found that this was a case where a permanent injunction should be ordered, as well as an order vesting title in the plaintiffs to the defendant’s postings, with ancillary orders enabling them to take steps to have the content removed. The injunction is intended to protect not only persons that have been harmed already, but to prevent the defendant from shifting her focus to a new set of victims associated with her primary victims. The defendant must desist from defaming and harassing non-parties where that conduct is part of a campaign of harassment directed against the plaintiffs in these four lawsuits. The defendant must be deterred from a broad range of wrongful conduct that includes harming others to cause damage to the plaintiffs.
2020 November 25
he Quebec Superior Court dismissed an application by “T.M.” for an order allowing him to proceed anonymously with a defamation action over Facebook, Instagram and website posts listing him as a sexual abuser. T.M. was fired because of these posts. Although he obtained new employment, he feared being fired again if his new employer learned of his defamation lawsuit. T.M. told the Court that the defendants contacted him before posting his name and were not themselves claiming to be victims of his abuse. Applying the “open court” principle discussed by the Supreme Court of Canada in Dagenais v. CBC, 1994 CanLII 39 (SCC) and R v. Mentuck, 2001 SCC 76, the Court ruled that the public’s right to the open administration of justice trumped the plaintiff’s interest in confidentiality. The Court noted that the possibility of injury to reputation, humiliation and embarrassment are not generally sufficient to justify a request for anonymity. See also on this website “The Open Court Principle in Canada”
2020 October 21
The Quebec Court (Civil Chamber) rejected an application by the defendant for an Order that this defamation action be dismissed as an abuse of process. Although the Court expressly stated it would not make final findings at this early stage of proceedings, the Court observed that various accusations directed at the plaintiff on Facebook were likely to lower the plaintiff in the estimation of others and cause unfavourable or unpleasant reactions, according to criteria set out in defamation jurisprudence.
2020 August 27
The Quebec Superior Court ruled that a plaintiff was entitled to amend his claim to seek a permanent injunction against Google. The plaintiff initially sought only an award of compensatory and punitive damages based on Google’s failure to remove defamatory material on the “Rip-Off Report” website from its search results within a reasonable time. The Court considered that the issue of the removal of allegedly defamatory material from Google’s search results was already central to the lawsuit and that adding a claim for a permanent injunction would not introduce a new claim unconnected with the original demand.
2020 August 20
The Alberta Court of Queen’s Bench granted a permanent injunction to the Plaintiffs against the defendant who the Court previously ruled had “waged a vast, concerted and relentless internet campaign of vengeance and vilification against the Plaintiffs, their related businesses, family members and employees.” (2020 ABQB 161). The Court held that a permanent injunction was the only adequate remedy in this case because of the findings in its previous decision on March 2, 2020 and the defendant’s conduct since then, which showed: (a) she “has no remorse”; (b) “is as unrepentant and defiant as ever”; (c) “remains committed to the truth of and justification for her [defamatory] statements”; (d) “is adamant about continuing the propagation of the defamatory statements;” and (e) “does not regard this court as having authority over her.” The Court noted that “[t]here is danger in engendering conspiracy theories on the internet” and that this “leads not just to damage to reputation, but … spreading these deranged notions could result in actual physical attacks on the subject targets.” The Court stated that the scope of the injunction would not prevent the defendant from streaming on the internet, doing online banking, making purchases on the internet, surfing the internet, and participating in online forums. The injunction “requires her only to refrain from posting about the Plaintiffs and associated persons and entities and nothing more.”
2020 July 31
On a motion for summary judgment, the Nova Scotia Supreme Court dismissed a claim by the plaintiffs that the defendant blog web-hosting service breached a binding contract to remove a disputed blog from WordPress.com. The contract claim was based on an exchange of two emails between the plaintiffs and Automattic in August, 2011. The plaintiffs’ email of August 18, 2011 asked Automattic to remove the “offensive material” and indicated failure to do so “may be sufficient” to add Automattic as a defendant. The response email by Automattic on August 20, 2011 stated: “You must provide a court order finding the content to be defamatory and specifically requesting its removal” and noted that WordPress.com is an Internet Service Provider “protected by section 230(c) of the U.S. Communications Decency Act which states that Internet service providers are not held liable for content (such as allegedly defamatory, offensive, inaccurate, or harassing content…” The Court noted that Automattic did not agree to remove the disputed blog if the plaintiffs did not add Automattic as a defendant to the proceeding. “Automattic was simply explaining to the Plaintiffs what steps they had to take in order to request the removal of the content from its servers.” “In the present case, the emails, viewed objectively, do not indicate there was a mutual intention to create legal relations.”
2020 March 4
The Ontario Superior Court of Justice granted a motion for contempt brought by the plaintiff against the defendant for her breach of a pre-trial injunction made on May 25, 2018 which ordered that: “(i) The Defendant shall refrain from making, publishing, or causing to be published any false or defamatory statements referring to the Plaintiff, whether oral, written or distributed via the internet; and (ii) The Defendant shall use best efforts to remove and to preserve electronic copies of all the Defendant’s statements regarding the Plaintiff that are posted on the websites listed in Schedule ‘A’”. The Divisional Court dismissed the defendant’s motion for leave to appeal the injunction order on November 16, 2018.
The Court noted that on this motion for a finding of civil contempt of the injunction order, the plaintiff had to prove contempt beyond a reasonable doubt (not merely on balance of probabilities which is the usual civil standard of proof). In this regard, the plaintiff had to prove: (i) that the injunction states clearly and unequivocally what should have been done; (ii) that the party alleged to be in contempt must have actual knowledge of that injunction; and (iii) that the party alleged to be in contempt must have intentionally done the act that the injunction prohibits. “It is not necessary to demonstrate that the contemnor intended to disobey the order.”
The first two elements were readily proven. Regarding the third element (that the defendant did the prohibited act), the Court stated that the plaintiff was not required to prove that the defendant herself had posted the defamatory statements to her personal websites. The Court held that it was sufficient that she authorized the publication or knew about the publication and acquiesced in it. “The statements could not have been posted without [the defendant’s] involvement and acquiescence. Even if she did not personally post the statements, she conveyed the information with the expectation that it would be posted in order to, in her view, maintain her image. [The defendant] could have, but did not, request that the statements be taken down.” In these circumstances, the court found that the defendant caused the defamatory statements to be published.
The Court also found, beyond a reasonable doubt, that the defendant was responsible for the publication of a defamatory post on a third party website, www.badbizreports.com. The Court noted, inter alia, that “after the [injunction] Order was released to the parties, but before it was made public, a posting appeared on www.badbizreports.com specifically referring to the contents of the decision. The posting states the ‘[t]he judge just told her not to post any defamatory postings, but told her that the posting on her website is not defamatory because she was able to prove it.’” “In this case, based on the overwhelming circumstantial evidence, and the absence of a plausible theory that is not more than speculative, I find that the Plaintiff has demonstrated beyond a reasonable doubt that [the defendant] published, or caused to be published, the May 25, 2018 posting to www.badbizreport.com.”
The Court held that the defendant “contemnor” must be afforded the opportunity to purge the contempt before the penalty hearing can take place. In this case, in order to purge the contempt, the Court held the defendant must delete all defamatory statements about the plaintiff and the plaintiff’s lawyer from her personal websites by March 56, 2020; provide proof of written requests to the third party websites referred to in this ruling that those third parties delete all defamatory statements about the plaintiff and his lawyer; and comply with the injunction order. The Court invited written submissions from the parties on the appropriate penalty.
2020 March 2
In order to protect the integrity of its process and prevent the defendant from bringing the administration of justice into disrepute, the Alberta Court of Queen’s Bench extended an earlier temporary injunction to prohibit the defendant from “publishing or posting any material or commentary concerning these proceedings as well as any material (including images) or commentary concerning any participant in these proceedings, including but not restricted to any counsel, Court staff or members of the judiciary, but excluding herself provided that any publication or posting about herself is not connected in any way to these proceedings or is not otherwise subject to any ongoing injunction.”
The judge also granted summary judgment to the plaintiffs after the rejecting “every conceivable defence” asserted by defendant including her “Donald Trump defence.” In this connection, the defendant unsuccessfully argued that her online libels were “no more or no different than Donald Trump, President of the United States, does in his daily tweets and pronouncements.” “[The defendant] seems to be arguing that there is a legal paradox at work here. Since the President of the United States can do no wrong (she seems to argue), by emulating Donald Trump, [the defendant] is doing no wrong.” “The tweets and pronouncements of Donald Trump do not confer on [the defendant] a license to defame anyone, even in her emulation of him.” “In Alberta, there is no ‘Donald Trump defence’ to a defamation action.”
This ruling also gives the plaintiffs leave to apply for a permanent injunction. “To be clear, the subject matter of that application is not whether there should be a permanent injunction but rather the extent of it.” “[W]hat is a stake … is the extent to which [the defendant] should be allowed to access and use the internet, given her history of misuse. Her chances for continuing to be allowed to use the internet will, in large part, depend on whether between now and the date of the upcoming application, she has complied with Court Orders and has demonstrated that she can use the internet responsibly.”
2019 December 17
In the first lawsuit under Nova Scotia’s new “Intimate Images and Cyber-Protection Act,” the Nova Scotia Supreme Court granted remedies sought by the plaintiff and ordered that the defendant, her ex-husband and his new girl-friend, “take down any communications that are cyber-bullying [including] Facebook postings that refer directly or indirectly” to the plaintiff or to her lawyer and that the defendants “disable access to any communications that are cyber-bullying if such communications cannot be taken down.” The Court also prohibited any further cyber-bullying and any direct or indirect communications with the plaintiff, except through legal counsel or for the purpose of arranging access to the child of the marriage. The Court directed that the parties make further submissions concerning the plaintiff’s claims for general, aggravated and punitive damages.
The “Intimate Images and Cyber-Protection Act,” which replaced the 2013 Cyber-Safety Act which had been ruled unconstitutional, creates civil remedies for “cyber-bullying” which is defined to mean “an electronic communication, direct or indirect, that causes or is likely to cause harm to another’s health or well-being where the person responsible for the communication maliciously intended to cause harm … or was reckless with regard to the risk of harm … and may include (i) creating a web page, blog or profile in which the creator assumes the identity of another person, (ii) impersonating another person as the author of content or a message, (iii) disclosure of sensitive personal facts or breach of confidence, (iv) threats, intimidation or menacing conduct, (v) communications that are grossly offensive, indecent or obscene, (vi) communications that are harassment, (vii) making a false allegation, (viii) communications that incite or encourage another person to commit suicide, (ix) communications that denigrate another person because of any prohibited ground of discrimination listed in Section 5 of the Human Rights Act, or (x) communications that incite or encourage another person to do any of the foregoing …”
The Court rejected the defendants’ submission that because they blocked the plaintiff from their Facebook friend list, the impugned postings were “private” and held that a so-called “private” Facebook profile does not immunize that account from a possible production order in civil litigation, following the decision of the Ontario Superior Court in Leduc v. Roman (2009), 308 D.L.R. (4th) 353 at paragraph 31. “It would obviously defeat the entire purpose of this legislation if a respondent could avoid a claim based on Facebook postings simply by blocking the applicant.”
2019 October 30
The British Columbia Court of Appeal dismissed an appeal from a conviction for criminal contempt for breaching court orders which enjoined the accused from publishing “disparaging or defamatory statements about a Trustee in Bankruptcy, counsel for the Trustee or any other person connected to the administration of this bankruptcy.” The accused published two blogs anonymously in 2010. The accused argued unsuccessfully on this appeal that the trial judge erred concluding that truth was not available as a defence for criminal contempt in the circumstances. Rejecting this argument, the Court of Appeal agreed with the lower court that the character of a statement determines whether it is defamatory, not its falsity. “Defamation is demonstrated where published statements are shown, in the eyes of a reasonable person, to lower the reputation of the person about whom they are made: Taseko Mines Limited v Western Canada Wilderness Committee, 2017 BCCA 431.” “The defence of truth is available in tort actions after defamation is prima facie established.” “The defence is not available here, as the [injunction] orders did not provide an exception for truth or any other justification or defence.” “The appellant was convicted for violating the clear and unambiguous terms of a court order, and not for committing the tort of defamation.” Note: An application for leave to appeal to the Supreme Court of Canada was dismissed on April 16, 2020: 2020 CanLII 27688 (SCC).
2019 October 29
The British Columbia Court of Appeal dismissed an application by the defendant for an extension of time to appeal three orders of the BC Supreme Court made in the context of a defamation action over online postings. The Court of Appeal noted that the defendant, after losing a lawsuit against the plaintiff, “posted extremely negative comments …. on various online review and social media platforms, including on personal accounts belonging to … employees of [the plaintiff] and the children of a partner of at the firm.” After being granted an interlocutory injunction, the plaintiff “discovered additional content posted online by [the defendant] and learned she had not removed the earlier content as ordered.” The defendant was found guilty of contempt and ordered “to immediately remove the previously posted online content immediately.” That order was not appealed. Subsequently, the plaintiff was granted summary judgment against the defendant and obtained a permanent injunction against the defendant. The defendant raised no legal defence to the defamation claim at the summary judgment application. An extension for time to appeal was refused because all three proposed appeals were bound to fail.
2019 March 19
The Alberta Court of Queen’s Bench dismissed the defendant’s application to set aside a default judgment relating to defamatory statements in a Facebook post and video. The Court noted that the defendant “taunted the Plaintiffs on her Facebook page, daring them to pursue legal action against her” and “acknowledged under cross-examination that she was not afraid of the legal process when she posted those taunts.” The Court concluded that that there was no satisfactory explanation for the defendant’s failure to file a Statement of Defence and held that she “did not provide any factual foundation for the truth of the statements, which could raise a triable issue.” “Further, the extent of the publication precludes any defence of qualified privilege.” “Contrary to the belief of many, the Rule of Law applies to the internet. It is not some kind of untamed frontier.”
2019 February 22
The Alberta Court of Queen’s Bench (Master) granted an application by the plaintiff to amend its statement of claim to include “post-statement of claim” online and email communications by the defendant. The Court noted that the defendant initially denied using the online pseudonym “Cowboyupnewt” but admitted, when questioned by the plaintiff under oath during the discovery process, that actually was his pseudonym and he had made the postings complained of in the original statement of claim. In the context of the amendments sought on this application, the Court stated: “New online postings appeared in the summer of 2018 by someone using the pseudonym ‘Bucklebunny’. Another online user put it to ‘Bucklebunny’ that ‘she’ (a ‘buckle bunny’ is a rodeo ‘groupie’, and female) was actually ‘Cowboyupnewt’, being the pseudonym previously used by [the defendant]. ‘Bucklebunny’ claimed that ‘she’ is not ‘Cowboyupnewt’, although the protestation on its face seems suspicious. The evidence and argument presented by Callidus Capital is that ‘Bucklebunny’ then wrote about things that bore a striking resemblance to things previously said by [the defendant] using the pseudonym ‘Cowboyupnewt’. The phraseology, the topics, and the general message are so similar that Callidus Capital asserts there is a rational basis for believing the ‘Bucklebunny’ is simply [the defendant] using another pseudonym.” “[T]he apparent steps take to deceive the plaintiff as to [the defendant’s] use of the pseudonym ‘Cowboyupnewt’ do not favourably colour” the defendant’s opposition to the amendments sought by the plaintiff. In the circumstances, the Court held that it was “proper for Callidus Capital to ask the Court to draw an adverse inference from the secrecy of what [the defendant] said in person to someone who has apparently read his on-line postings.” In this case, the amendments were justified by the test in Balm v 3512061 Canada Ltd., 2003 ABCA 98 that “any evidence” will do to justify amendments generally. In this case, the Court held there is some evidence (requiring an inference) that the “Bucklebunny” communications were authored by the defendant.
2018 May 18
The Ontario Superior Court of Justice granted a Norwich Order in favour of the applicants requiring the respondent Glassdoor website operator to disclose personal information including, but not limited to, the names, email addresses and IP addresses, of the people associated with the anonymous defamatory review posts on its website. The Court noted that the respondent’s website states it may disseminate member’s personal information if compelled to do so by legal authorities, and contains a requirement that users not post content that is defamatory. The Court stated that “the interest of justice does not favour permitting anonymous posters to engage in a campaign of defamation against individuals and businesses.” The applicants were awarded $6,000 costs of the application against the respondent.
2018 May 14
L. v D., 2018 BCCA 201
The British Columbia Court of Appeal dismissed an appeal by the plaintiff from an Order striking out portions of her notice of civil claim, including claims for defamation relating to the publication of reasons for judgment of the Chief Justice of British Columbia (2010 BCSC 260) on the website of the defendant’s lawyer before that judgment was overturned by the Court of Appeal in 2011 BCCA 66. In this decision on May 14, 2018, the Court of Appeal unanimously held that the accurate republication of a decision of a court is subject to at least qualified privilege, quoting from McDougall v Knight (1890), 25 Q.B.D. 1 (C.A.) at 11, where Fry L.J. set out the rational for the privilege: “[T]he judgment of a judge of the land is in itself an act of such public and distinct character as to make it in the interest of the commonwealth that they should know it in toto, and provided it is either given verbatim correctly, or correctly summarized, it seems to me that the public policy requires that to be the law, and I have no hesitation ins saying that I believe that to be the law at the present day … It appears to me that it would be to put an undue fetter on the press to hold that the publication of a judgment is not privileged unless the judgment fairly summarized the evidence. I cannot doubt that the judgments of Court must be presumed to be fair, accurate and adequate, and to make a person who reports such a judgment prove that it is so would be to put on him a burden inconsistent with the interests of the commonwealth.” The Court of Appeal concluded that the same rationale is available today in respect to publication through the World Wide Web
2018 May 2
The Quebec Superior Court dismissed a motion by the defendant CBC for a pre-trial dismissal of this defamation action concerning two articles posted on the CBC website. The Court held that the articles could be considered to be defamatory that the it could not be said the allegations of fault on the part of the CBC had no chance of success. The court also declined to find that the lawsuit was a SLAPP, noting that the CBC is a Crown corporation with significant resources. “The Court is … not prepared to conclude that the Plaintiffs are in a position to outlast the CBC or that the CBC is likely to back down because of a fear of this litigation.”
2018 January 10
The Nova Scotia Court of Appeal dismissed an application by the respondent/plaintiff Raymond to extend the time for perfecting her cross-appeal from a trial judgment which had dismissed her defamation claims against one of two defendants. At trial, she had obtained an award of $8,500 damages against one defendant, as well as a permanent injunction against both defendants/counterclaimants, prohibiting and restraining them from referring to the plaintiff in any future broadcasts, publications, Internet postings or other communications. The Court of Appeal noted that the trial decision was not the primary target of the plaintiff’s cross-appeal. Instead, the plaintiff had a “minor quibble” with a pre-trial order because the Court did not label the defamation tort in which she pursued and succeeded as a “cyberbully tort.” That did not translate to an issue reviewable by the Court of Appeal. The main appeal had been abandoned by the defendants. The Court of Appeal dismissed the cross-appeal on the basis it was not satisfied that in was in the interests of justice to allow Raymond more time to perfect her cross-appeal.
2017 December 14
The Ontario Superior Court of Justice made an order under s. 140(1) of the Ontario Courts of Justice Act finding that the defendant is a “vexatious litigant” and that he required leave of the Court before commencing any future proceedings. However, the Court dismissed an application for an injunction requiring the defendant to remove any postings about the applicant from the Internet, including posts on the defendant’s webpages and on YouTube. The Court concluded that although the actions of the defendant would be sufficient to engage the Court’s jurisdiction to grant an injunction under the heads of defamation and harassment, the Applicant himself had been involved in the same type of behaviour, including posting videos about the defendant on the Applicant’s own websites. The Court stated: “In short, the Applicant has come to this Court seeking relief with ‘unclean hands.’ Accordingly, I am not prepared to grant the relief he seeks.”
2017 November 9
The Alberta Court of Queen’s Bench set aside a Master’s order compelling a newspaper columnist to answer questions that would reveal the identity of his source for three opinion columns published in a newspaper, on the newspaper’s website and elsewhere online. The Court agreed with the defence submissions that the source’s intention or motivation in providing information to the reporter was irrelevant and immaterial to the issue of the defendants’ alleged malice or the issue of the status and reliability of the source. “In this case, the source [the plaintiff] seeks to have identified is not the source of the impugned allegations” because it was a sworn affidavit of someone else that was relied on by the reporter. The person who swore that affidavit was not the source. The source merely provided a copy of the affidavit.
2017 October 20
The Ontario Superior Court of Justice, on application by the defendant, ordered the plaintiff to provide further particulars of “other substantially similar comments” allegedly published by the defendant. The plaintiff’s statement of claim alleged that defamatory allegations by the defendant in certain letters were re-published by a self-styled journalist, to unknown numbers via two Facebook postings. The Court declined to order that the plaintiff provide further particulars about the “unknown number of readers.” Particulars of special damages were ordered.
2017 September 26
The British Columbia Supreme Court struck out the defendants’ pleadings in an internet defamation lawsuit on the basis of repeated and cumulative breaches of the Supreme Court Civil Rules which lead to a finding that the defendants were purposefully delaying the prosecution of the cases. The Court held despite being warned their defence may be struck, the defendant had not produced one further document since a court order in August, 2017, that the defendants were not contrite, that a further warning or order would not have any effect, that the lack of documents produced had severely hampered the prosecution of the plaintiff’s case, and that the defendants had deliberately prolonged and obstructed the discovery process. “In my view, there has been deliberate and material non-disclosure. The defendants’ evidence has repeatedly sidestepped the heart of the fact or legal issue to be addressed.”
2017 June 12
The Ontario Superior Court of Justice sentenced the individual defendant and the two Balita defendants for their convictions for contempt of a libel injunction by publishing certain emails (see 2017 ONSC 1635). Referring to Astley v Verdun, 2013 ONSC, affirmed 2014 ONCA 668, the Court noted that it is common for punishment for breach of an order to be fairly modest once the defendant has accepted the court’s authority and obeyed the order. “Often an apology, a costs award, and small fine are seen as sufficient punishment once the defendant has complied with the order.” In this case, the Court found that the individual defendant did not recognize or accept the court’s findings of wrongdoing and did not respect the orders of the court. “It is hard to get much more willful than a public, malicious quest including a specific request for others to publish material that the defendants acknowledge they are enjoined from publishing. It is hard to more flagrantly violate a court order and show disrespect for the court’s authority than doing soby publications in a popular community newspaper and on Facebook. It is hard to find more risk that a breach is ongoing than when defendants say that they are on a quest that they will not give up.” In the circumstances, each corporation was sentenced to pay a fine of $5,000. The individual defendant, for the offence of criminal contempt of court, was sentenced to 21 days in a provincial jail.
2017 April 26
The Ontario Superior Court of Justice rejected the defendant lawyer’s motion for a stay of proceedings in this $15 million defamation damages claim on the basis of the plaintiff’s refusal to produce certain correspondence. The plaintiff’s claims related to the defendant lawyer’s communications and comments made from September, 2015 to April, 2016, in letters and an email sent to a number of people. The plaintiff further claimed that the defendant’s allegations were re-published by a self-styled journalist to unknown readers in unknown numbers via two email blogs on the internet. The defence pleaded absolute privilege, qualified privilege and justification. The court held that there was nothing in the evidence that established that the defendant could not realistically locate the allegedly defamatory correspondence she had written referred to in the statement of claim, to plan her defence or to properly address privilege/confidentiality concerns.
2017 March 13
The Ontario Superior Court of Justice found the defendants guilty of criminal contempt of court for violating an injunction granted by the trial judge on July 13, 2016. The contempt included disseminating an email in October 2016 which “repeated and re-asserted the truth of the same falsehoods that were the subject of the injunction.” The Court stated that there is a three part test for establishing contempt of court: a) the injunction order must state clearly and unequivocally what should or should not be done; b) the party alleged to have breached the order must have had actual knowledge of it; and c) the party alleged to have breached the order must have intentionally done the prohibited act (Carey v Laiken, 2015 SCC 17). The Court also held the defendants breached the injunction in another email in December, 2016 and online comments on August 5, 2016 The Court characterized the contempt as criminal rather than civil [United Nurses of Alberta v Alberta (Attorney General), 1992 CanLII 99 (SCC)] because the defendant’s conduct was an “open, continuous and flagrant violation“.
2017 February 20
The British Columbia Supreme Court ordered that the plaintiff post the sum of $150,000 as security for the costs of the defendant in this defamation action. The plaintiff sued for damages, including punitive damages, for alleged false imprisonment and defamation which the plaintiff alleged related to his involvement in the online publication of certain reports about Silvercorp. The plaintiff also alleged he was defamed in material published on the internet. The court noted that whether to order security for costs is a matter of discretion. The purpose of such an order is “to protect the defendant from the likelihood that in the event of its success it will be unable to recover its costs from the plaintiff…However, a just balance must be struck between achieving that objective and not stifling legitimate claims.”
2017 February 16
The Ontario Superior Court of Justice dismissed an application by the defendant for an Order compelling the plaintiff to provide further disclosure of documents, in a case involving an allegedly defamatory email sent by the defendant to over thirty individuals associated with the plaintiff’s organization. The defendant alleged the lawsuit was a SLAPP as defined in section 137.1 of the Courts of Justice Act, RSO 1990, c. C.43. The Court considered the application involved a “fishing expedition for evidence of claimed irregularities rather than an assessment of the Plaintiffs’ claims for defamation.” The Court also struck out portions of the statement of defence.
2017 February 9
The Ontario Superior Court of Justice granted a defence motion to have certain defamation lawsuits over a blog report tried together, or one after the other, in the discretion of the trial judge. The lawsuits were both filed the same day, against the same defendants, over the same online report. The Court determined that the two lawsuits had common questions of law and fact, arose from the same transaction and involved damage claims over the same blog report.
2017 February 7
The Ontario Superior Court of Justice (Master) ruled that the judge hearing an anti-SLAPP motion should consider all of the pleadings before determining whether the tests in Ontario’s Courts of Justice Act, s. 137.1(5) are satisfied. Section 137.1 provides that a judge shall dismiss a proceeding that “arises from an expression made by the [defendant] that relates to a matter of public interest” unless the plaintiff satisfies the judge that there are grounds to believe that the proceeding has substantial merit, and the defendant has no valid defence, and the harm likely to be suffered by the plaintiff as a result of the expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
In this case, the plaintiff alleged that the defendant published false, malicious and defamatory statements about the plaintiff in text messages exchanged on Facebook. The Court Master concluded that the plaintiff should be permitted to seek an order requiring the defence to deliver certain particulars of its defence and counterclaim, and to produce certain documents, which the plaintiff required in order to prepare a reply to the statement of defence and to prepare a defence to the counterclaim of the defendant. The Court therefore made orders that the defendant deliver certain particulars and documents.
2017 February 7
The Ontario Superior Court of Justice allowed an appeal from a decision of the Master made December 5, 2016 and held that the anti-SLAPP provisions of the Courts of Justice Act, RSO 1990, c. 43, section 137.1 expressly and unequivocally prohibit any step in the proceeding by any party until a filed motion to dismiss a claim as a SLAPP has been finally disposed of. In this case, the defendant was sued for alleged defamation made in Facebook postings, which voiced strong opposition to a local bylaw amendment. Accordingly, the Court held that the defendant was not allowed to file her statement of defence and counterclaim after filing her anti-SLAPP motion. The Court suggested that the proper course for the defendant would have been to serve and file her defence before bringing the motion. The filing of the defence and counterclaim was ordered to be set aside.
2017 February 7
The Saskatchewan Court of Queen’s Bench, in its judgment awarding libel damages to the plaintiff doctor, held that “in cases where it is alleged defamatory material was posted on an internet website, as in this case, “publication” takes place wherever and whenever a third party downloads or views the impugned material from the website… Consequently, the limitation period begins to run each and every time defamatory content on the internet is downloaded and viewed.”
The Court also held that “[i]t is not necessary for a plaintiff in every case to prove directly that the words complained of were brought to the actual knowledge of a third party. If, on the facts provide, it can reasonably be inferred that the words were brought to the knowledge of some third party, a prima facie case is established. See Gaskin v Retail Credit Co., [1965] SCR 297.” “In Bernstein v Poon, 2015 ONSC 155, although it was proven that the defamatory material was posted on the defendant’s website for at least one to two years prior to being removed, there was no direct evidence that anyone except the defendant and his legal representatives viewed the material. In concluding that there was more than ample evidence to support the drawing of an inference that the material on the website was viewed by third parties, Mew J. held that ‘[t]o find otherwise would be to ignore the realities of twenty-first century communication…“. “The defendants in the present case acknowledged that the articles in question remain on websites controlled by the Star Phoenix, Canwest Publishing Inc. and/or Postmedia Network Inc. … it is a reasonable conclusion that anyone with a search engine could have accessed that material within the last two years and as a result the limitation period would not have expired.”
2017 January 31
The Ontario Superior Court struck out a claim in a defamation action brought against the defendant newspaper over an online article, based on an RCMP news release, which had been left on the newspaper’s website for three months after the Crown withdrew the charges because of insufficient evidence. The plaintiff’s statement of claim did not specify the words alleged to be defamatory or say whether they were published in the Chinese language version of the article, or in the Google translated version. The claim did allege that the defendant newspaper’s website offered a link to Google Translator. The statement of claim did not set out the foreign words with the English translation, as the common law requires for defamation pleadings. The Court noted that it was not provided with any case precedents regarding liability for defamation based on the continued publication of the fact of a criminal charge after the charge has been withdrawn. The Court agreed with the defence submission that the impugned newspaper article did not say what the plaintiff claimed. Even the Google Translate version of the article demonstrated that the claim had no reasonable prospect of success. In the circumstances the claim disclosed no reasonable cause of action, demonstrated an absence of material facts, and was frivolous and vexatious.
2017 January 25
The British Columbia Supreme Court ordered that the defendants take down the content of postings on the Internet which the court was satisfied were defamatory of the plaintiff. Google Inc., which was not a party to this lawsuit, received notice of the plaintiff’s application and its counsel appeared at the application on behalf of Google. The court noted that Google had a voluntary policy pursuant to which in the past it had been prepared to block URLs if a defendant fails to comply with a court order that a URL be removed. “So while there has been no representation on behalf of Google Inc. that it will follow that policy in this case, there appears to be a good chance that it may choose to do so.” Counsel for Google clarified: “Google’s policy applies to removing or de-indexing URLs from Google.ca, the Canadian version of the search engine, not from “.com”.”
2017 January 17
The British Columbia Supreme Court struck out defences of truth and fair comment in the defendant’s response to civil claim concerning an Internet posting in the reader response portion of a website dealing with local news in the East Kootenay area.
The response to civil claim denied that the posting conveyed the allegedly defamatory meanings complained of by the plaintiff. Instead, the response to civil claim plead alleged lesser, alternative defamatory meanings. The Court characterized those alleged lesser, defamatory meanings as “anaemic” and found certain elements of the response to civil claim to contain an unsatisfactory mixture of pleaded fact, evidence, argument and in some instances, irrelevant material. “In the case at bar, an alternative defamatory meaning which excises the article and press release which provide a link to the video will not be permitted.” “If the defendant wishes to plead an alternative defamatory meaning, he must set it forth in a straightforward manner and must engage the context of the allegedly defamatory language: a posting tied to the E-Know article which specifically referred to the press release and the linked video.“
2016 December 12
The British Columbia Court of Appeal noted that in her defamation action, the plaintiff claimed that the defendant family members defamed her in letters or emails to various persons, including governmental and quasi-governmental authorities. Among other things, the plaintiff asserts that one defendant made false statements to a police detective.The Court of Appeal held that the plaintiff was entitled to an order that the police department make available a transcript of their interview with that defendant, pursuant to Rule 7-1(18) of the Supreme Court Civil Rules. The Court noted that the transcript will be the best evidence of what was said by the defendant to the police. The defendant had no expectation of privacy in the statement he made to the police.
2016 December 5
The British Columbia Supreme Court dismissed an application by the defendant for summary judgment dismissing the defamation action, on the grounds the case was not suitable for disposition by summary trial. The claim related to four alleged defamatory publications, including an email sent to the plaintiff’s general manager. The Court noted that “A summary trial, although based on affidavits in chambers, remains a trial of the action for which the plaintiff (even if not the applicant) bear the onus of proof of establishing his or her claim(s) and the defendant (even if not the applicant) retains the burden of establishing any defence that is raised.” The court noted that “where credibility is a material issue, and cannot be resolved b y the body of written evidence, the courts have often found it difficult to find the necessary facts based on the contradictory evidence of witnesses alone, and have also found it unjust to decide the issues without allowing for cross-examination.” The court concluded that particularly in relation to slander claims, credibility is a material issue and it cannot be adequately or justly resolved on the basis of a paper record. With respect to the email claim, the Court considered that even if the evidence permitted a determination of that issue, “it would, at best, decide a ‘slice’ of the litigation” which would not be justified.
2016 November 8
The Ontario Superior Court of Justice dismissed an application by the defendant for summary judgment on his counterclaim against an ex-employer for alleged defamation. The Court held that it was impossible to separate the issues on the counterclaim, which related to emails and letters sent by the plaintiff to the defendant’s new employer, from the issues on the claim. The claim was a mirror of the issue on the counterclaim. “The truth or falsity of the statements in the [allegedly defamatory] emails and the letter are at the heart of both the claim and the counterclaim. The issues need to be decided together [at trial].” The Court also held it could not conclude whether or not the words complained of were defamatory. “…[I]n my view, a court needs the entire context to make a determination” whether the words were defamatory, cited Bang Gu Jiang v Sing Tao Daily, 2014 ONSC 287 at paras. 31-32.
2016 August 2
The Nova Scotia Supreme Court dismissed a defense request for summary judgment dismissing the plaintiffs’ claims over alleged defamatory statements by the defendant on her private Facebook page. The Court held that the statement of claim may support a reasonable cause of action in defamation, although it did not quote the allegedly defamatory words verbatim, but did indicate the alleged content “with some specificity.” Also, “[t]he audience to whom the defamatory words were published is implicit to the forum of the alleged publication, Facebook.“
2016 June 8
The Alberta Court of Queen’s Bench, in this trial judgment awarding damages to the plaintiff, considered what constitutes online publication. The defendants took the position that online publication of the allegedly defamatory newspaper article ceased after links to the article disappeared from the homepage of the Calgary Herald or National Post websites, so that the article was only available on the newspapers’ websites by using the search function. The Court noted that the article “could also be viewed on the internet through search engines such as Google by using words or phrases from the article, in which case the party searching would be directed to a link to the article which would appear on the National Post and/or on the Calgary Herald website. It would be displayed on a ‘live page’ that contained current advertisements and had buttons which allowed a reader to share the article with their Facebook or google groups, tweet the article or print the article.” The Calgary Herald suppressed all access to the article commencing October 2008, which prevented it even being accessed by searches. The National Post version, however, continued to be available until November, 2012 by searching the National Post website or the internet using key words from the article.
The Court rejected submissions by the defendant Postmedia that because it was not responsible for the initial publication carried out by its corporate predecessors before Postmedia acquired the websites and database in July 2010, the existence of the article within its database did not constitute a fresh or continuous publication. The Court noted that Postmedia was “not simply providing a link to defamatory material, but is the source of defamatory material” which is accessed from its database by someone conducting a search. “In this case, it was Postmedia who continued to publish the defamatory words making them available so that when someone did an internet search or Postmedia website search they were able to access the Article from the Postmedia SouthPARC database.” “Postmedia is … in the position of the publisher of the defamatory material.” The Court consequently held Postmedia liable for publishing the Article from July 2010 to November 2012.
2016 May 2
The British Columbia Supreme Court struck out portions of a counterclaim based on allegedly defamatory statements made by the plaintiffs: to the defendant, or the defendant’s lawyer; in court pleadings containing allegations about the defendant; and ;on a website which included the defendant’s name, stories referring to the defendant and photos of the defendant. The Court accepted the plaintiffs’ submission that inter alia the website complaint was deficient because it did not assert specifics of the website content.
2016 April 20
The British Columbia Supreme Court concluded the defendant was liable to the plaintiff in damages, among other things, for republication within Facebook and for republication through email. The Court stated that “the nature of Facebook as a social media platform and its structure mean that anyone posting remarks to a page must appreciate that some degree of dissemination at least, and possibly widespread dissemination, may follow. This is particularly true in the case of the defendant, who had no privacy settings in place and who had more than 2,000 ‘friends’. The defendant must be taken to have implicitly authorized republication of her posts.” The Court concluded that the defendant was liable for an email by a third party republishing the defendant’s own defamatory Facebook attacks, stating that “the implied authorization for republication that exists as a consequence of the nature of social media, and the structure of Facebook, is not limited to republication through the social media only.” The Court also held that the defendant was given effective notice by the third party that he intended to republish her defamation.
The Court further concluded that the defendant was liable for defamatory third party Facebook comments, stating: “The user hosting a page of a social medium such as Facebook … is providing a forum for engagement with a circle of individuals who may share some degree of mutual familiarity.” The Court considered that the defendant was “far from being a passive provider of an instrument for comment” and that the contents of her initial posts “created a reasonable expectation of further defamatory comments being made.” The Court held, however, that the imposition of liability should be limited to “situations where the user’s original posts are inflammatory, explicitly or implicitly inviting defamatory comment by others, or where the user thereafter becomes an active participant in the subsequent comments and replies.” “It does no harm to the integrity of defamation as a separate tort to extend the use of foreseeability by making it a test for liability for third-party comments.“
2016 March 29
The Ontario Superior Court rejected an application by a plaintiff to consolidate her libel action with her wrongful dismissal action. The libel claim complained about statements made by the defendant’s lawyers concerning the wrongful dismissal lawsuit to a reporter for the Law Times. The lawyer-defendants alleged the statements were taken out of context and otherwise misrepresented by the Law Times. The Law Times story appeared in both its print and online editions. The Court ordered that after disclosure of documents in the libel action the action would be stayed pending further order of the Court. Among other things, the Court noted a concern that consolidating the two lawsuits might lead to the disqualification of defence counsel from acting in the wrongful dismissal action. The Court also concluded that the plaintiff had failed to demonstrate that the two actions had similar enough factual issues to warrant consolidation.
2016 February 22
The Nova Scotia Supreme Court determined the appropriate penalty for contempt arising from the defendant’s breach of an interim injunction in a defamation lawsuit prohibiting any publications about the plaintiff on the internet. The defendant’s “noncompliance with the injunction consisted not of publishing new stuff about [the plaintiff], but linking her new activist sites to a site which contained troublesome material about [the plaintiff] arising out of the many years of family litigation between [Mr. H] and [the plaintiff].” The Court concluded that the hyperlinking by the defendant could possibly have influenced the public from whom a civil jury would be selected to hear the defamation action. In this context, the Court concluded that the appropriate penalty for contempt was to strike the defendant’s jury notice, which it was entitled to do so by virtue of a Nova Scotia statute.
2016 January 19
The Trial Division of the New Brunswick Court of Queen’s Bench dismissed an application by the defendant VT for summary judgment or an order striking the libel claim arising from a Facebook post allegedly made by a defendant noted in default and shared by the defendant VT, who was not noted in default. Although the allegedly defamatory post did not mention the plaintiff’s name, the judge concluded that there was “arguably a potential for identification should the matter proceed.“
2015 December 22
The Ontario Superior Court of Justice denied an application by the defendants to stay a defamation action brought by the plaintiff until completion of a Federal Court of Canada action by the same plaintiff for alleged breaches of the Trade-marks Act relating to publication of the same website alleged to be defamatory in the defamation action. The common law claim for defamation made in the Ontario Court could not be joined with the Trade-marks Act claim in Federal Court for jurisdictional reasons. The judge stated: “In my opinion, there is no unfairness in having the proceedings proceed in tandem. The defamation action has different substantive elements and different remedies available to [the plaintiff] assuming it were successful.“
2015 November 24
The British Columbia Supreme Court granted an application by the defendants to consolidate nine separate defamation lawsuits against nine different defendants over publications of allegedly defamatory expression in social media including Fundrazer.com, and by reposting on Facebook the link to the publications on Fundrazer.com.
2015 November 5
The Quebec Superior Court dismissed a defence application to strike out a defamation lawsuit relating to the transmission by email to various persons of the text of a judgement of the Rabbinical Court of Geneva (Switzerland). The Court held that the question of injury to reputation, if any, should be determined at trial. Under Quebec law, the communication in certain instances of true information may be actionable: Prudhomme c Prud’homme, [2002] 4 R.C.S. 663.
2015 October 22
The British Columbia Supreme Court dismissed an application by the defendant for an Order striking out certain defamation claims, including claims which referred to publications found on the website of the Botanie Valley Advisory Committee. The notice of civil claim stated that “[p]articulars of the defamatory words are lengthy and will be delivered in a separate statement of particulars.” However, the plaintiffs did not deliver such a separate statement of particulars. The plaintiffs, resisting the defence application to strike, argued that there are materials relating to the internet publications that are properly the subject of particularization or amendment, and suggested the court should consider whether the pleadings could be preserved by amendment. The Court held that striking pleadings is a draconian remedy, only to be granted in the most egregious cases. The Court further held, that assuming the pleadings to be true (which is the test on a strike application), that the notice of civil claim disclosed a reasonable claim and therefore should not be struck out.
2015 October 13
The British Columbia Supreme Court granted an application by the plaintiff for leave to use certain documents (obtained in the discovery process in motor vehicle litigation) to commence a separate lawsuit in the British Columbia Supreme Court for defamation against KB and unknown persons. In the discovery process in the motor vehicle litigation, the plaintiff had obtained copies of anonymous, defamatory emails to an insurance adjuster for Great West Life, which had in turn forwarded the defamatory information to the Insurance Corporation of British Columbia. The Court concluded that the plaintiff should be relieved from his implied undertaking to the Court to use discovery information solely for the purpose of the litigation in which it was disclosed to the plaintiff. The Court stated that the public interest favoured relief so the information could be used in the proposed defamation litigation; that “the defamer should not be permitted to hide behind the protection of an implied undertaking rule.“
2015 September 18
The Ontario Court of Appeal sustained a decision of the Ontario Superior Court striking out a defamation claim relating to publications on a law firm’s website and on a television network’s website because the words complained of were not capable of bearing a defamatory meaning.
2015 September 15
Buck v. Morris, Buck v. Morris, 2015 ONSC 5632
The Ontario Superior Court of Justice, in the course of this judgment dismissing this defamation action over a website article on various grounds including qualified privilege, made the following finding of fact about the scope of publication : “… the publication of the Statement on the Town’s website was a publication effectively to the world at large. This Court can take judicial notice of the fact that with any search engine such as Google, anyone could have accessed the Statement published on the Town website. This was a publication to persons who did not have a legally recognized interest or duty to receive it.”
2015 June 5
The Ontario Court of Appeal, allowing an appeal from the Ontario Superior Court, held that the defendant insurance company had a duty to defend the plaintiffs in a defamation action arising out of a video posted on the Internet. The policy provided coverage to “volunteer workers” or “employees” of the plaintiff student association “while performing duties related to the conduct of the [association’s] business.” The Court held that when the pleadings in their entirety were considered, including the pleadings in cross-claims and third party claims in addition to the statement of claim, “it may be reasonably inferred that there is at least the mere possibility that the appellants were employed by [the association] and acting in the course of their employment when they made and posted the video on the internet.“
2015 May 28
The Alberta Court of Queen’s Bench ordered the defendants to produce to the plaintiff certain emails from the defendant Martin to the CBC and J-Source seeking changes to stories which Martin considered could injure his own reputation. The Court concluded the emails were relevant and material at the discovery stage, because they raised the issue of whether, by refusing to grant the plaintiff similar treatment in removing or apologizing for National Post stories, the emails provided circumstantial evidence of malice.
2015 March 27
The Nova Scotia Supreme Court allowed an application by the defendant to set aside an ex parte Order made by a Justice of the Peace under the Cyber-safety Act, which was proclaimed in effect in Nova Scotia on August 6, 2013. The Order made by the Justice of the Peace prohibited the defendant from directly or indirectly communicating with the plaintiff and from communicating to anyone else about the plaintiff and his companies. The Court noted that the evidence of events before August 2013, which the Justice of the Peace relied on, was irrelevant because the legislation was not retroactive. Moreover, the Cyber-safety Act contained a definition of “cyberbullying” which was inconsistently mild and would apply to the most innocuous conduct. The Court also noted that the plaintiff had since sued the defendant for defamation, and the defendant would be entitled to disclosure and discovery, to test the many allegations. The Order made by the Justice of the Peace, which the Court rescinded, was so broad it would have prohibited the defendant from communicating with the plaintiff about the defamation lawsuit.
2015 January 26
The Ontario Superior Court of Justice (Master) dismissed an application by the defendant Levant for production of certain information obtained by an independent expert’s review of the plaintiff’s computer, in the context of a defamation action commenced in 2008 under Ontario’s Simplified Procedure. The Court held there was no obligation to disclose irrelevant data under a protocol prescribed by the Court in 2010, which involved using specified single word search terms to identify potentially relevant documents on the plaintiff’s computer. Although the various single word search terms generated numerous “hits” in over 12,000+ pages, the application of the “proportionality” principle meant defence counsel were not entitled to review documents that plaintiff’s counsel had determined were not relevant to the case, as pleaded. The Court was satisfied that the plaintiff had already produced all relevant information and that any further production would be an impermissible fishing expedition.
2015 January 12
The Ontario Superior Court set aside judgment in default of defence over an article written and published originally in The Journal (the Queen’s University student newspaper) in November, 2006, which was stored in the newspaper’s electronic archive and remained accessible on the Internet in the allegedly defamatory form until March, 2014. In addition to reviewing the well-established principles regarding setting aside default judgments, the Court referred to a complication for defendants arising from publication over extended periods of time on the Internet. “In particular, publication of the alleged libel arguably extended over the course of more than seven years, on an ongoing basis. In such circumstances, the realities of insurance coverage, (including the passage of successive periods of coverage, with possibly different insurers, and the common existence of “occurrence” versus “claims made” policies), makes it entirely unsurprising that the plaintiff’s claim may have triggered the possible involvement of four insurers, all of whom the defendant would have an obligation to contact and consult before responding to the plaintiff’s claim, in order to avoid doing anything that might risk voiding coverage that might otherwise be available.“
2014 April 29
The Ontario Superior Court of Justice ruled on pre-trial motions brought by the plaintiff lawyer and by the defendant operator of “Canlaw Lawyer Referral Services,” an Internet based service which refers prospective clients to lawyers who pay a fee for registering with the service. The Court noted that the Law Society of Upper Canada had issued a notice to the legal profession of Ontario advising lawyers not to use the defendant’s service. A dispute arose between the plaintiff lawyer and the defendant when the lawyer decided, after using the referral service for six years, not to renew his subscription in 2012. As a result of the dispute, the CanLaw lawyer referral website posted the words “DO NOT USE THIS LAWYER” in connection with the plaintiff’s listing. The plaintiff subsequently served a Libel and Slander Act notice on the defendant and filed a motion seeking an interlocutory injunction against the defendant, which was adjourned at the request of the defence. Before that motion could be heard, the plaintiff realized he had failed to file a statement of claim within 30 days of issuing his notice of action, and brought this motion for an extension of time. The Court in this ruling granted the extension for filing and serving a statement of claim and permitting substituted service by mail to the defendant’s personal address. The Court also set aside a local registrar’s order dismissing the lawsuit for failure to comply with the 30 day time limit. However, the Court rejected the plaintiff’s motion to stay a Small Claims Court action which had been brought by the defendant to recover, inter alia, the amount the defence alleged to be due for another annual subscription fee. The Court also rejected the defence application for an order staying the Superior Court action pending a determination of the Small Claims lawsuit.
2014 April 24
The Ontario Superior Court of Justice dismissed an application by Hardev Kumar for an order compelling a justice of the peace to issue legal process charging Kumar’s nephew with defamatory libel under the Criminal Code of Canada. The Court noted that the essential elements of the criminal offence of defamatory libel include proof that the impugned statements were false and proof that the accused knew they were false. In this case, the Court held that the applicant had not tendered any evidence to the justice of the peace that what the nephew said was untrue or that the nephew knew it was untrue. The Court stated that “not every hurtful or derogatory statement about another person, even if false to the knowledge of the speaker, falls within the scope of s. 298 of the Criminal Code. Looked at objectively and in the circumstances described by the applicant, the statements complained of were not capable of being characterized as “likely to injury the reputation of the [applicant] by exposing him to hatred, contempt or ridicule.” “There was no evidence as to what it was the [the nephew] said to the police when he made a complaint about the applicant. Accordingly, there was no evidence that [the nephew] had made a false statement, let along one that he knew to be false.“
2014 February 25
The Ontario Court of Appeal dismissed an appeal from a conviction and sentence for two counts of defamatory libel. The Appeal Court noted in its ruling: “E-mails inviting sexual activity were sent to the complainant’s employer from fake e-mail accounts set up in the complainant’s name. The same sexually explicit message was posted on an adult cyber-dating website. That posting also included the complainant’s photo.” “This was a circumstantial case. The similarity of the writing style and language of the defamatory communications to that of the appellant’s final e-mail … was only one of several factors that led the trial judge to conclude that the appellant had sent or posted the defamatory communications. The trial judge did not err in noting the observable similarity in writing style and language, or by failing to expressly caution herself as she made that observation.” “The few persons (including the appellant’s husband) who were aware of the complainant’s complaints and could have accessed the appellant’s computer testified that they did not do so. Further, the evidence of the manager of one of the restaurants was that, apart from the appellant, no one … had any malice towards the complainant. The trial judge’s conclusion that the Crown had proven beyond a reasonable doubt that the appellant created and sent the defamatory communications is amply supported by the record and was reasonably reached.“
2014 January 23
The Ontario Superior Court awarded the plaintiff Warman $85,000 costs against the defendants following a three week jury trial involving defamatory postings on a website which resulted in an award of $42,000 for general, aggravated and punitive damages plus prejudgement interest. The Court held that the “defendants did not act reasonably when they failed to accept the plaintiff’s very reasonable Offer to Settle of $5,000 per defendant before trial and ruled that costs should be awarded on a “substantial indemnity” scale in part because “all of the defendants … acted with malice and highhanded egregious conduct.” The Court also found that “[I]n a complex defamation case such as this one, it would not be unreasonable to award an amount for costs in excess of the amount awarded for damages” and that the “time spent and the hourly rates [of legal counsel] were reasonable and proportionate to the very important objective of preserving the plaintiff’s reputation.”
2013 November 7
The Ontario Superior Court of Justice, Divisional Court, unanimously denied an appeal by the appellant/defendant from a decision of the Ontario Superior Court dismissing his application for summary judgment dismissing this defamation lawsuit.
The plaintiff/respondent had sued for damages over statements made by the defendant in: (a) an email sent to Ontario’s Minister of Health and Long-Term Care with a copy to the President of the College of Physicians and Surgeons of Ontario; and (b) a subsequent email to the Minister, copied to the President of the College, in response to the plaintiff’s letter demanding a retraction and apology. The emails concerned “liberation therapy” which hypothesizes that multiple sclerosis involves compromised blood flow through the veins draining the central nervous system, which can be relieved by angioplasty to widen constricted neck veins.
The Divisional Court agreed with the lower court judge that the case was not suitable for determination by summary trial, because the question whether the emails were protected by the defence of absolute privilege required “a full factual record, as well as the full forensic machinery of a trial.” Similarly, with respect to the defence of qualified privilege, determining whether there was reciprocity on the part of the speaker (the defendant) and the listeners (the Minister and the President of the College) required “a full factual record after a trial that addresses the interests and duties of the sender and recipient of the Email.” In addition, the Divisional Court held there was some evidence of malice, which necessitates a full record of the factual context in which the impugned publications were made.
2013 November 4
The British Columbia Supreme Court held that the plaintiff was entitled to particulars of a defence of fair comment pleaded by several defendants in relation to various publications on the internet. The Court held that the defendant should have known of their obligation to provide particulars of the facts on which the alleged comment is based.
2013 October 29
The Ontario Supreme Court found the defendant Verdun in contempt of court for breaching a very broad injunction granted at the defamation trial which prohibited Verdun from communicating with anyone about the plaintiff Astley. The Court sentenced the defendant to a “conditional sentence of 90 days during which he will be under house arrest.” During the 90 day conditional sentence of house arrest, the defendant would only be permitted to leave his house for medical emergencies, grocery trips, and to attend his conditional sentence supervisor. The Court declined to impose a fine on the basis that several monetary awards had not yet been paid to the plaintiff, who should have first call on the defendant’s assets before the Court. The Court also imposed a probation order on Verdun, requiring that he be supervised for an 18 month period and perform 200 hours of community service. Verdun was also ordered to appear before the sentencing judge periodically to monitor his progress, commencing at the end of the 90 day’s house arrest, and would be required to report to a probation officer.
2013 October 23
The Quebec Superior Court dismissed the defendant’s application that a defamation action relating to her anonymous posts in 2012 to the RateMyEmployer website should be dismissed as an abuse of process. The defendant unsuccessfully argued the lawsuit was a Strategic Lawsuit Against Public Participation (“SLAPP” in English; “poursuite-baillon” in French). The Court cited Acadia Subaru c. Michaud, 2011 QCCA 1037 (CanLII): “Plainly it cannot be said that every claim that has the effect of restricting freedom of expression in public debate is improper since that would render all actions in defamation ipso facto abusive. Only those that have an undue or disproportionate effect on freedom of expression, in the balancing of interests …should be held to be improper.” ” Freedom of expression in public debate is not a licence to defame and does not trump the right to reputation absolutely.” In this case, the defendant failed to convince the Court that the relief sought by the plaintiff was manifestly unfounded or frivolous.
2013 October 8
The Alberta Court of Queen’s Bench rejected a number of defamation-related amendments to the plaintiff’s statement of claim on the basis they raised new claims after the expiry of the applicable 2-year limitation period under section 3 of the Alberta Limitations Act. The Court noted that “every delivery of a defamatory statement amounts to a new publication, giving rise to a separate cause of action even if the defendant is repeating or referring to something previously said.” One of the rejected amendments concerned an email dated January 13, 2006, which forwarded a “Quality Alert” dated November 29, 2005, which was complained of in the existing statement of claim. The Court held that the email was a new publication which amounted to a new claim that was not related to the conduct, transaction or events pleaded in the original statement of claim, in part because the general complaint regarding other “false statements” in the original pleading were too general to satisfy the requirements for defamation pleadings. The Court also rejected amendments alleging republication of the “Quality Alert” because the original statement of claim failed to properly plead one or more of the three recognized exceptions to the general principle that a defendant is not liable for republication of the defamatory statements by others. Those exceptions arise where: (1) the defendant authorized or intended the republication; (2) republication was the natural or probable result; and (3) the person to whom the original publication was made was under a moral duty to repeat or republish the words to a third person. Further, in any event, the Court held that the “Quality Alert” itself was not defamatory.
2013 July 26
The British Columbia Supreme Court dismissed an application by the defendants for an order dismissing the corporate plaintiffs’ defamation action as a “strategic lawsuit against public participation” (“SLAPP”). The documents alleged to be defamatory included an environmental study, two pamphlets and certain “online material” which was published on a website, but at the time of this hearing was “no longer accessible”. The plaintiffs had not yet delivered particulars regarding the words complained of in this “online material.”
The Court held that the defendants were proposing a wholesale, substantive change to the law of defamation, not simply changes to procedural rules of civil practice. Such a change would normally be undertaken by the legislature, or by higher courts with a full evidentiary record. “Under the substantive law of defamation, the plaintiffs, as corporate entities, have a right to protect their reputation: Home Equity Development Inc. v Crow, 2004 BCSC 124 at para. 183, Quijano J. Every defamation law suit has some dampening effect on speech. I cannot see how inherent jurisdiction can or should be used to change the substantive laws of defamation under the guise of a procedural change meant to protect the processes of the courts and the integrity of the judicial system. … Moreover, the Rules already protect against abusive litigation. If the plaintiffs’ claim proves baseless after a trail on the merits, those actions can be addressed through costs, as was done in Scory v Krannitz, 2011 BCSC 1344, 13 C.P.C. (7th) 118.”
2013 June 7
The Ontario Superior Court of Justice sustained a defence objection at trial to the admissibility in the plaintiff’s case of evidence of republication of the allegedly defamatory website article on websites other than that of the defendant Toronto Star based on the results of Internet searches that her partner had conducted using Google and other search engines. Noting that pleadings play a critical role in defamation actions, the Court held that the plaintiff had failed to specifically plead the exceptions to the basic rule that each publisher is only responsible for its own act of publication. In this case, despite a pre-trial warning from the defence that the issue of republication on other internet sites had not been specifically pleaded, the plaintiff failed to seek an amendment. In conclusion, the Court stated: “While there may be cases of notoriety where, absent a specific pleading of an exception, a court might be prepared to find that the fact of publication of an article on the Internet was sufficient to raise the issue of republication by other Internet providers, this is not such a case.“
2013 March 25
The Newfoundland and Labrador Supreme Court rejected a number of proposed amendments to the Statement of Claim, including (but not limited to) allegations that the defendant by “acquiescence … ratified and adopted” disparaging emails authored by a third party and statements of the third party which were reported in an article on the British Medical Journal website. The Court permitted an amendment, however, regarding an email from a senior officer of the defendant which allegedly misrepresented the findings of a Committee which had investigated a dispute between the plaintiff and the third party.
The plaintiff’s submissions in this case that liability could arise from “acquiescence” focussed on the decision of the Supreme Court of Canada in Crookes v Newton, 2011 SCC 47, where the issue was whether a hyperlink on the defendant’s website constituted publication of allegedly defamatory expression on another website. Referring to the Crookes decision, the Newfoundland court stated: “While [the dissenting justice in Crookes] would have the law find that publication had taken place without a positive act on the part of the defendant, the majority of six out of seven judges would require circumstances which showed the defendant expressed a view that could amount to adoption or ratification for a finding that publication had occurred.” In this case, only the email from the senior officer of the defendant potentially satisfied the majority’s requirement.
2013 March 6
The Ontario Superior Court, on application by the plaintiff, made orders requiring the defendant to provide certain information sought by the plaintiff on the pre-trial examination of discovery of the plaintiff in this libel action over allegedly defamatory blogs including, inter alia: 1) the true facts relied on by the defendant to support his defence of fair comment; 2) the address or location for the servers that host his website on Blogspot.com; 3) why the defendant is posting messages about this defamation action on Facebook; 4) a list of all the defendant’s Facebook friends who would have had access to messages he posted about the plaintiff or this defamation action on Facebook; 5) copies of all messages the defendant posted to his Facebook page about the plaintiff or this libel action; 6) a list of the defendant’s 79 Twitter followers (if not already provided); and 7) copies of all articles the defendant has written on-line on the subject of racism in Canada. The Court accepted submissions by the plaintiff that this information was relevant to the plaintiff’s claim for aggravated damages and to various defences pleaded by the defendant including fair comment, responsible communication, and the alleged expiry of limitation periods in sections 5 and 6 of the Ontario Libel and Slander Act.
2013 February 27
The British Columbia Supreme Court granted an application by the defendants for a ruling that the claims relating to allegedly defamatory expression on a U.S.A. website are not suitable for determination by summary trial on affidavits.
“Turning to the suitability of this case for summary trial, there is no issue that I can dismiss an application to proceed in that manner if the issues are not suitable for determination by summary trial, or it such a trial process will not assist in the efficient resolution of the proceeding. On the issue of justification … it will be necessary to decide whether the justifying facts put forward by the defendants or Mr. Nazerali’s denial of them should be preferred. Unlike cases in which conflicts in the evidence can be resolved by resorting to objective evidence external to the parties … engaging in that process on the evidence in this case would place a summary trial judge in an impossible position…”
“As to the defence of responsible journalism, …this case will depend on an assessment of the credibility of the defendants’ claims that Mr. Nazerali was inaccessible for the purposes of gaining his side of the story and that the nature of the confidential information that they relied on made it reasonable not to seek his input. Again, these are not conclusions that can be arrived at solely from a comparison of affidavit contents.”
The Court concluded that without live testimony and cross-examination, a judge will not be able to find the facts necessary to determine the factual and legal issues.
2012 October 2
McDonald v. Freedman, 2012 ONSC 5253, leave to appeal to the Divisional Court granted February 5, 2013, 2013 ONSC 812
The Ontario Superior Court of Justice dismissed a defence application for summary judgment in relation to an allegedly defamatory email sent to the Minister of Health and Long Term Care for Ontario with a copy to the president of the College of Physicians and Surgeons of Ontario. The email related to the scientific controversy arising from so-called “liberation therapy” advocated by Dr. Zamboni and “seized upon by [the plaintiff] as a possible cure for MS.” The Court noted that summary judgment has rarely been granted in defamation cases in Ontario, referring to the decision of the Ontario Court of Appeal in Baglow v Smith, 2012 ONCA 407, and held that the plaintiff should have the opportunity to have a jury determine whether the email “went beyond the bounds of scientific and regulatory discourse and whether it was sent maliciously with an intent to injure and not for purposes of advancing … a bona fide complaint.”
2012 September 27
The Supreme Court of Canada unanimously held that a 15-year-old girl was entitled to proceed anonymously with her Court application for an order requiring an Internet service provider to disclose the identity of the person who had published a fake and allegedly defamatory Facebook profile using her photograph, a slightly modified version of her name, and other particulars identifying her. The Court noted that “[a]ccompanying the picture was some unflattering commentary about the girl’s appearance along with sexually explicit references.” The Supreme Court of Canada also banned publication of the contents of the fake Facebook posting to the extent that it contained identifying information.
The Court accepted that the “open court principle” was trumped by the need to protect the young girl’s privacy “from the relentless intrusive humiliation of sexualized online bullying,” noting that “[r]ecognition of the inherent vulnerability of children has consistent and deep roots in Canadian law.”
2012 June 22
The Quebec Superior Court awarded $20,000 moral damages and $25,000 punitive damages to husband and wife plaintiffs over a “successful and vicious campaign” of emails to friends and acquaintances of the plaintiffs “with a stated goal of destroying their reputation.” The Court rejected defence arguments that the defendant’s “slanderous, cruel and vengeful” comments should qualified as “gossip” with which the Court should not interfere. The Court held the comments were a “clear illustration of an abuse of right and the exercise in bad faith” of the right to freedom of expression. In the opinion of the Court, “the exceptional circumstances of this case justify the issuance of a permanent order that will enjoin [the defendant] not to communicate directly or indirectly in writing with the [plaintiffs] or to third parties regarding the [plaintiffs’] private life, their assets and property or their financial situation.” “This is one of those rare cases, where such an extensive prohibition is warranted and can be reasonably justified.”
2012 June 14
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.”
2012 April 5
The Saskatchewan Court of Queen’s Bench found the defendant to be “guilty of contempt of court and criminal contempt of court by breaching and refusing or failing to obey” a September 2009 injunction which prohibited the defendant from “publishing or causing to be published on the internet (or any other media) any defamatory statement referring to the plaintiff.” This finding related to defamatory material published by the defendant on her blog “on a continued basis”. The Court sentenced the defendant to a jail term 30 days but suspended the order of incarceration as long as the defendant complies with the September 2009 injunction. The Court also ordered Google Inc. [which was not a party to the lawsuit) to remove the defamatory material from the blog site of the defendant.
2011 December 21
The Quebec Superior Court granted a permanent injunction prohibiting the defendant from disseminating defamatory expression contained in an email dated October 29, 2009 and in a communique dated 31 July 2009. The October 29, 2009 email, which had previously been sent to ten employees of the corporate plaintiff, called for a boycott of the corporate plaintiff’s products. The defamatory communique warned that “millions of emails containing the communique” would be transmitted to businesses in the Montreal area if the defendant came to harm. On November 3, 2009, the court had issued a temporary, pre-trial injunction prohibiting the defendant from disseminating the contents of the communique. In June, 2010, the defendant had been found guilty of contempt of court for violating the temporary injunction because of transmissions in January 2010 (to investment and retirement funds, the media and store managers) and in February 2010 (to participants in a breakfast organized by the Montreal Chamber of Commerce.)
The new, permanent injunction ordered the defendant not to disseminate, print, publish or circulate in any manner, verbally or in writing, by email or in any other medium, the defamatory words contained in the email or the communique, or analogous words, in whole or in part. The Court also specifically authorized the plaintiffs to communicate this judgment to anyone who had received a copy of the defamatory email or communique.
2011 October 27
The Ontario Superior Court rejected the plaintiff’s submissions that the defendants, who had obtained a summary judgment dismissing the plaintiff’s libel claims, should be entitled to no costs (or only nominal costs) “on a public interest basis that an action in defamation involving Internet blogging raised a novel point of law and a novel fact situation.” The Court awarded costs to the defendants but reduced their fees to 50 per cent of the amount claimed on the basis of other conventional factors.
2011 October 19
The Supreme Court of Canada dismissed an appeal from a decision of the British Columbia Court of Appeal [2009 BCCA 392] which upheld a trial judgment [2008 BCSC 1424] which dismissed an action for libel based on two hyperlinks created by the defendant on his own website. The plaintiff sued on the basis that hyperlinking to defamatory material constituted publication of that material. “One [of the two hyperlinks] was a ‘shallow’ hyperlink, which takes the reader to a webpage where articles are posted, and the other was a “deep”hyperlink, which take the reader directly to an article. … Both shallow and deep hyperlinks require the reader to click on the link in order to be taken to the content.” The defendant’s webpage had been viewed 1,788 times but there was no evidence whether either of the two hyperlinks had been clicked on or followed.
Abella J. (Binnie, Charron, Rothstein and Cromwell JJ concurring), held that there is no presumption of publication arising from posting material on the Internet and that hyperlinks that connect to allegedly defamatory material cannot be said to “publish” that material.
Abella J. agreed with the approach taken by the BC Court of Appeal in Carter v B.C. Federation of Foster Parents Assn., 2005 BCCA 398, that merely referring to an article containing defamatory comment without any repetition of the comment itself should not be found to be a republication of the defamatory comment. “Hyperlinks are, in essence, references. By clicking on the link, readers are directed to other sources. Hyperlinks may be inserted with or without the knowledge of the operator of the site containing the secondary article. Because the content of the secondary article is often produced by someone other than the person who inserted the hyperlink in the primary article, the content on the other end of the link can be changed at any time by whoever controls the secondary page…In my view, then, it is the actual creator or poster of the defamatory words in the secondary material who is publishing the libel when a person follows a hyperlink to that content. … The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral – it expresses no opinion, nor does it have any control over, the content to which it refers.”
Abella J. considered that subjecting hyperlinks to the traditional publication rule would have the effect of “seriously restricting the flow of information and … freedom of expression” and potentially “chill” how the Internet functions.
On the subject of damage to reputation caused by internet libel, Abella J. stated:
[37] I do not for a moment wish to minimize the potentially harmful impacts of defamatory speech on the Internet. Nor do I resile from asserting that individuals’ reputations are entitled to vigorous protection from defamatory comments. It is clear that “the right to free expression does not confer a licence to ruin reputations” (Grant, at para. 58). Because the Internet is a powerful medium for all kinds of expression, it is also a potentially powerful vehicle for expression that is defamatory. In Barrick Gold Corp. v. Lopehandia 2004 CanLII 12938 (ON CA), (2004), 71 O.R. (3d) 416 (C.A.), at para. 32, Blair J.A. recognized the Internet’s “tremendous power” to harm reputation, citing with approval the following excerpt from Lyrissa Barnett Lidsky “Silencing John Dow: Defamation & Discourse in Cyberspace” (2000), 49 Duke L.J. 855, at pp. 863-64:
Although Internet communications may have the ephemeral qualities of gossip with regard to accuracy, they are communicated through a medium more pervasive than print, and for this reason they have tremendous power to harm reputation. Once a message enters cyberspace, millions of people worldwide can gain access to it. Even if the message is posted in a discussion forum frequented by only a handful of people, any one of them can republish the message by printing it or, as is more likely, by forwarding it instantly to a different discussion forum. And if the message is sufficiently provocative, it may be republished again and again. The extraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence to the notion that “the truth rarely catches up with a lie.” The problem for libel law, then, is how to protect reputation without squelching the potential of the Internet as a medium of public discourse. [Blair J.A.’s emphasis removed.]
Abella J. left open the possibility, however, that links that automatically display other content may constitute “publication.”
[43] I am aware that distinctions can be drawn between hyperlinks, such as the deep and shallow hyperlinks at issue in this case, and links that automatically display other content. The reality of the Internet means that we are dealing with the inherent and inexorable fluidity of evolving technologies. As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available. Embedded or automatic links, for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in the courts below, and therefore need not be addressed here.
Chief Justice McLachlin and Fish J. agreed substantially with the majority but proposed a different test for determining when a hyperlink constitutes publication of defamatory matter to which it links. “…[A] hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.” “Adoption or endorsement of the content accessible by a link in the text can be understood to actually incorporate the defamatory content into the link. Thus the content of the text comes to include the defamatory content accessed by the hyperlink. The hyperlink, combined with the surrounding words and context, ceases to be a mere reference and the content to which it refers becomes part of the published text itself.”
In a separate lengthy judgment, Deschamps J. disagreed with a blanket exclusion of hyperlinks from the scope of the publication rule, concluding that publication is demonstrated only where the plaintiff can establish on a balance of probabilities that the defendant performed a deliberate act that made defamatory information readily available to a third party in a comprehensible form. In this formulation of the test, it would be a question of fact whether defamatory information is readily available.
2011 October 6
The Ontario Superior Court of Justice granted the plaintiff’s motion to compel the defendant and a defence witness to answer certain questions and to submit to further cross-examination on affidavits. Plaintiff’s counsel also asked for direction from the Court as to who may attend at the cross-examination because certain individuals who are not parties to the action attended at a prior cross-examination and refused to leave notwithstanding the objections of plaintiff’s counsel. “One of these observers then posted comments on the internet describing the cross-examination and attributing unethical behaviour [to plaintiff’s counsel] while also suggesting the plaintiff herself was somehow associated with evidence of wrongdoing … .” The court rejected defence submissions that the public was entitled to attend the cross-examination and directed that only the parties and their lawyers and the court reporter could attend.
2011 September 28
The British Columbia Supreme Court awarded general, aggravated and punitive damages for libel but declined to include an allowance for publication of the libels on the Internet website of the British Columbia Utilities Commission. The Court held that there was no presumption of publication and that the plaintiffs had failed to prove that any material posted to the website was accessed and read on the Internet.
2011 September 16
The Quebec Superior Court granted the plaintiff company and its president (also a plaintiff) a permanent injunction prohibiting the defendant from publishing any statements calculated to damage the plaintiffs, their shareholders, administrators, officers, employees, suppliers or merchant members. At trial, the plaintiffs tendered proof that the defendant had defamed them with false allegations of a very serious nature which were published in emails, letters and other communications. The plaintiffs did not seek damages because the defendant was impecunious. Previous interlocutory injunctions had failed to restrain the defendant who declared his intention to continue disseminating his allegations to third parties.
2011 June 27
On an appeal from a trial decision of the Toronto Small Claims Court, the Ontario Superior Court ordered a new trial before a different judge because this defamation action had been improperly dismissed on the basis of a defence – qualified privilege – which was not pleaded. The defamation claims related to emails exchanged within a password-protected Yahoo! Group named Reunion founded and moderated by the defendant Dojc. The defendants alleged the plaintiff, who had been excluded from the Yahoo! Group, was an “unauthorised eavesdropper” regarding the impugned emails. The Ontario Superior Court referred to two questions raised on the appeal which had not been canvassed by the trial judge: “1. Whether the material in question was “published” when it was circulated to a limited and private group, which required a password to access the site; and 2. Whether the appellant, as a “trespasser” to the site after being banned from Reunion, is precluded from relying on documents on the site as evidence of defamation after the date of his expulsion.” The Superior Court continued: “The law of defamation in the context of the internet is developing, and is dependent upon the facts. I conclude that there is no definitive answer to the legal question of whether the comments were published on these facts of this case, and therefore it is preferable to refer to the matter to trial so that the issue can be determined upon a full factual record.”
2011 June 14
Following a jury verdict in favour of the plaintiff for $250,000 general damages and $400,000 aggravated damages, the Ontario Superior Court of Justice ruled that the plaintiff was also entitled to a permanent injunction and to partial indemnity costs of the lawsuit in the amount of $215,919.32 payable forthwith by the defendant.
The Court noted that “permanent injunctions have consistently been ordered … where either: (1) there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that he is liable to the plaintiff for defamation; or (2) there is a real possibility that the plaintiff will not receive any compensation, given that enforcement against the defendant of any damage award may not be possible.” In this case, the Court found that the defendant “extended the scope of his publications after the commencement of the action by publishing his [defamatory] book and posting statements on the Internet which he refused to disengage even after the jury’s verdict.”
The permanent injunction granted by the judge prohibits the defendant from “disseminating, posting on the Internet or publishing, in any manner whatsoever, directly or indirectly, any statements or comments about the plaintiff … For further particularity, the defendant shall not publish or cause to be published or otherwise disseminate or distribute in any manner whatsoever, whether by the Internet or other medium, any statements or other communications which refer to [the plaintiff] by name, depiction or description.” “There will also be a mandatory injunction requiring the defendant to forthwith remove his blog postings dated April 29, 2011 and May 2, 2011 from the Internet, and any similar postings that refer to the plaintiff, directly or indirectly.”
2011 May 30
The Quebec Superior Court granted the Quebec Bar Association a permanent injunction against the defendant prohibiting him from: (i) sending emails, letters or cease and desist demands to the Bar or its officers, elected officials, members and personnel; and (ii) communicating by email, letter or by cease and desist demands to the Bar, its officers, elected officials, members and employees using any electronic address associated with the domain name of the Quebec Bar or its directors. The Court stated that without a permanent injunction, the defendant would recommence his campaign as no damages award would influence his conduct; that only the fear of going to prison could reduce him to silence. Paraphrasing the judgment in National Bank v Weir, 2010 QCCS 402, the Court stated that the abusive, defamatory, vexatious, misleading, harassing and furious words of the defendant are like fallen leaves which fall from a tree and then are picked up by the autumn winds. Just as it is impossible to gather them all up once they have dispersed, so it is impossible to call back defamatory and harassing expression. No monetary compensation could compensate for the damages that would result; the only effective remedy is to prevention.
2011 May 2
The Ontario Superior Court of Justice dismissed a defence application to stay this defamation lawsuit in favour of mediation and then arbitration. The plaintiff alleged in his statement of claim that in January 2010, the defendant sent two emails that were defamatory of him to all of the members of the club. The Court noted that “it is a reasonable inference from the language of the emails that the defendant wished to portray the plaintiff to the other members as an undesirable member of the club and an unworthy candidate for election to the club’s board of directors.” Concluding that the subject matter of the defamatory emails did not fall with the scope of a mandatory arbitration bylaw (which came into effect after the alleged libels), the Court stated: “The plaintiff’s right to sue in this court is not a right that should be lightly confiscated. Although people are entitled to oust the jurisdiction of this court by agreement, such agreements must be interpreted reasonably to give effect to the makers of the agreement.”
2011 March 4
The Nova Scotia Court of Appeal unanimously upheld a lower court decision [2010 NSSC 215] refusing an application by a 15-year old plaintiff to continue her defamation action under a pseudonym and for an order imposing a publication ban on the allegedly defamatory words posted on Facebook. The Court of Appeal described this case as “pit[ting] a teenager who finds herself the victim of on-line bullying against the public’s right to be informed by a free and independent press given unrestricted access to open court proceedings.” With respect to Facebook, the Court of Appeal noted that its “popularity and meteoric success is reflected in the slew of business articles reporting the untold wealth amassed by its creators; its current depiction in a Hollywood film; and its recent emergence as a force of truly global proportions in mobilizing mass protest fixed on toppling ruling elites.”
This action related to “the creation of a fake Facebook profile by an unidentified perpetrator, which included a photograph of the [15-year old plaintiff], a slightly modified version of her name, and other particulars which identified her. The fake profile also discussed the [15-year old plaintiff’s] physical appearance, her weight, and allegedly included scandalous sexual commentary of a private and intimate nature.” The request for use of a pseudonym and publication ban was part of the 15-year old plaintiff’s application for an order compelling Bragg Communications to disclose the identity of the person who used the IP address, located in Dartmouth Nova Scotia, involved in the creation of the fake Facebook account. The lower court ordered Bragg Communications to disclose that identity as part of the same ruling which denied use of a pseudonym and publication ban.
On this appeal, the 15-year old argued unsuccessfully that the lower court erred by failing to take into account the special vulnerability of children and by ignoring an obvious and serious risk of harm. The appeal was opposed by the Halifax Herald Limited and by Global Television.
In its ruling dismissing the appeal, the Court of Appeal considered, among other things, the nature of libel litigation: “Defamation is a claim that one’s reputation has been lowered in the eyes of the public. To initiate an action for defamation, one must present oneself and the alleged defamatory statements before a jury and in open court. To be able to proceed with a defamation claim under a cloak of secrecy, strikes me as being contrary to the quintessential features of defamation law. A.B. would wish to have her identity shielded from the public, and the fake Facebook profile banned from publication, apparently as a protection from further embarrassment and public scrutiny. But, when A.B. chose to avail herself of the court process in the pursuit of damages for defamation, she submitted to whatever public scrutiny attaches to civil litigation and must accept the attendant diminished expectation of privacy.”
The Court of Appeal held that although the restrictions sought by the 15-year old might be appropriate in family law, or in cases involving sex crimes, they had no application to a defamation action. “A statement of claim in a defamation case requires the pleader to refer explicitly to the published words which are said to have harmed the plaintiff’s reputation” and it would be contrary to the public interest “to permit a plaintiff … to pursue her claim anonymously, with her identity kept secret.” The Court continued: “Let me conclude these reasons by suggesting that the effect of the judge’s decision will be to produce a laudatory result. Whether attending court to watch the trial, or reading published reports of the proceedings, citizens will associate A.B.’s name with the words of the fake profile, but not in the way the bogus poster ever intended. Presumably, the fake Facebook page was created and posted with a view to persuading people that these were A.B.’s own words and expressions, or simply intended as a parody of a real profile. It will be for a jury to ultimately decide whether the impugned words are defamatory, or are defensible as truth, parody, fair comment or otherwise. But news reporting of A.B.’s efforts to unmask an anonymous poster and seek money damages for the harm to her reputation puts the story in a completely different light. There is no suggestion that these are her own words: quite the opposite. And so readers will be told that A.B. is taking legal action to obtain redress for the alleged lies that have been posted. Should she be successful, one might expect that she will be lauded for her courage in defending her good name and rooting out on-line bullies who lurk in the bushes, behind a nameless IP address. The public will be much better informed as to what words constitute defamation, and alerted to the consequences of sharing information through social networking among “friends” on a 21st century bulletin board with a proven global reach.”
2011 March 1
The Quebec Superior Court granted a permanent injunction to the plaintiff university which prohibits the defendant researcher from communicating with the university, its administrators, employees and professors. The Court held the restriction on freedom of expression was warranted in view of the massive number of emails (and faxes) the defendant sent to people at the university in 2004 and 2005, which stopped after the Court had granted an interim injunction.
2011 January 26
This decision of the Ontario Superior Court of Justice concerned an award of costs to the plaintiff who recovered a judgment in the amount of $25,000 for defamation damages plus an order that the defamatory publications be removed from the defendant’s website. Although the plaintiff was substantially successful, his claim for punitive damages was not allowed and some of the publications at issue in the action were found either not to be defamatory or were protected by other defences. In addition to noting that legal issues involved in defamation litigation are more complex than the typical lawsuit, the court remarked on the factual complexities arising from the defendant’s blog postings relating to various legal proceedings. The court held that the plaintiff should be awarded costs on a substantial indemnity basis because the defendant “published defamatory statements about [the plaintiff] for an ulterior purpose and his actions were malicious, and also because [the plaintiff] obtained a result after trial, which exceeded the financial terms of his offers to settle by a substantial amount and included the remedy of the removal of the defamatory comments from [the defendant’s] website… [the pre-trial] offers made by [the plaintiff] were reasonable and a better or equivalent result was obtained after trial.”
2011 January 20
In this Ontario Superior Court proceeding, the defendant counterclaimed over certain statements made by the plaintiff and its CEO for defamation, injurious falsehood, infringement of the Trade-marks Act and the Competition Act, and unlawful interference with economic relations. These claims concerned statements contained in an electronic press release, an email that discussed the press release, and a newspaper article which reported on the press release. The plaintiff/defendant by counterclaim sent the press release to its customers and potential customers under cover of the impugned email which explained ongoing patent litigation between the plaintiff and the defendant. The Court refused to grant a summary judgment on the defamation counterclaim, holding that the issues raised in the defence to the counterclaim ought to be dealt with in the normal way at a trial with witnesses where the full factual context could be evaluated. “It is well-accepted that determining the defamatory nature of material is a highly contextual analysis. In that light, there is little to be gained by parsing each statement one by one and deciding whether a trial is required to determine the defamatory nature of that particular utterance. The trial judge must still assess each statement in light of its surrounding context, which will include the remaining statements made in each of the three documents.”
2010 November 24
Gobeil v. Smith, 2010 ONSC 64905
The Ontario Superior Court of Justice stayed a defamation action by two Ontario Provincial Police Officers over statements published by the defendant on two of his websites. The words complained of relate to the police investigation and charges laid against the defendant. At the date of this hearing, the defendant had been convicted on five counts charges and an appeal was still pending from his conviction on four. The Court dismissed the defendants motion to dismiss the action for want of prosecution or delay, noting that it was clear that in January 2007 the parties agreed that the lawsuit should proceed only after the criminal case was complete. The Court found that there was an overlap of the factual and legal issues between the civil and criminal proceedings, noting that the plaintiffs defamation claim is brought by two officers who investigated the defendant in relation to the alleged criminal activity which ultimately led to charges being laid against him.
2010 August 23
The Saskatchewan Court of Queen’s Bench dismissed a motion by the defendant union and by individual union members for an order striking out damages claims by the plaintiffs (all executive or elected council members of the Saskatchewan Government and General Employees Union) over allegedly defamatory allegations published on a website. The defence unsuccessfully submitted that a collective agreement in force between the defendants and the plaintiffs’ employer, which contained an arbitration clause, deprived the Court of jurisdiction to hear the plaintiffs’ defamation claims. The Court held that the dispute did not arise under the collective agreement and the arbitration clause did not apply to deprive the court of jurisdiction.
2010 August 16
The Ontario Superior Court of Justice (Master) ruled on an application by the defendant Levant, for (1) an order for production of certain categories of documents and (2) a mirror image of the hard drive of the plaintiff’s personal computer in order to obtain all relevant documents and information from the plaintiff’s personal computer or, in the alternative, (3) an order requiring to turn the hard drive or a mirror image of the hard drive over to a mutually agreeable expert who will examine it and produce all relevant documentation and information, including meta data, to all parties. The Court noted that in this “Simplified Procedure” action in which the plaintiff seeks an apology and damages of no more than $50,000, the “parties’ cases could hardly be more diametrically opposed”: (a) the plaintiff “asserts that someone adverse to his interests set about to make a hateful internet posting and to take appropriate steps to make it appear that the posting had been generated from an Internet Protocol (“IP”) address belonging to [the plaintiff];” (b) the defendant Levant asserts in a 36 page statement of defence containing 145 paragraphs that the plaintiff “generated the subject posting and that if a full analysis of the hard drive of [the plaintiff’s] computer is undertaken, it may well be that proof of Mr. Levant’s theory will be found.”
Taking into account the new requirement under the Ontario Rules of Court for proportionality, the Court concluded that a forensic examination of some of the available electronic data was justified but that such an examination should be: (i) restricted to very limited areas, (ii) made on a mirror image of the plaintiff’s hard drive, and (iii) made by an independent, mutually acceptable expert. The Court directed, inter alia, that the independent computer expert: (a) conduct searches for certain specified alleged personas and related metadata concerning these terms or meaningful fragments of them found on the hard drive, and ensure that appropriate searches are made with respect to all specified keywords; and (b) seek all documents and information showing the plaintiff’s IP address at relevant times. The Court stated: “Unless and until we know that the [independent computer expert] finds on the hard drive (if anything), this alleged fishing expedition may turn out to have been a wild goose chase.”
2010 August 13
The Ontario Superior Court granted an application by the plaintiff, a supporter of the Libertarian Party of Canada, for an extension of time to appeal from a judgment of the Small Claims Court ordering him to pay Jakoby-Hawkins, a Green Party candidate, $7,000 general damages and $3,000 in aggravated damages for defamation contained in an email to Green Party officials, statements made in a website, and statements made in a written newsletter. Although the parties did not address the merits of the proposed appeal, the Court found that there appears to be a bona fide intention to the pursue the appeal, the Notice of Appeal was delivered a very short time after the expiry date, and there appears to be no prejudice to the defendant as a result of the late service.
2010 June 25
The Nova Scotia Court of Appeal imposed a temporary publication ban concerning the allegedly defamatory words published about the 15-year-old female plaintiff on a fake Facebook profile pending the hearing of the plaintiff’s her appeal from the refusal of a lower court judge to issue such a ban. The Court of Appeal order also permitted the plaintiff to proceed temporarily under a pseudonym. The plaintiff had successfully sought and obtained from the lower court a ruling compelling a service provider to disclose information in its possession regarding the identity of the owner of the IP address used to create the fake Facebook profile. The full appeal hearing is scheduled for December, 2010.
2010 June 4
A.B. v. Bragg Communications Inc., 2010 NSSC 215
The Nova Scotia Supreme Court ordered, inter alia, that the defendant disclose the identity of a person whose used a specified IP address at a specified date and time including (if available) name, address, telephone number and any other identifying information. This action arose from the alleged creation by an unidentified perpetrator of a fake Facebook profile which included a photograph of the applicant A.B. and other particulars which identified her. The Facebook profile also discussed the applicant’s physical appearance, weight, and allegedly included scandalous sexual commentary of a private and intimate nature. The Facebook profile was removed by the internet provider in March, 2010. Applying the principles discussed by the Ontario Divisional Court in Warman v Wilkins-Fournier, 2010 ONSC 2126, the Nova Scotia Supreme Court held that a prima facie case of defamation had been made out and stated that “…where a prima facie case of defamation is established and no public interest beyond the general right of freedom of expression is offered in support of maintaining the author’s anonymity, … the public interest favouring disclosure prevails.”
2010 May 21
The Quebec Superior Court dismissed a defamation action concerning an article on the defendant’s website. The Court found no causal link between the website article and any prejudice to the plaintiff’s relationship with the Chinese government. The lawsuit was held to be frivolous, in bad faith and an attempt to restrict freedom of public debate.
2010 March 29
The Ontario Superior Court of Justice dismissed an application by the Attorney General of Canada and an individual defendant employed by Health Canada to strike out defamation claims against the individual defendant. The statement of claim alleged that the individual defendant was involved in posting to the Health Canada website a Health Canada press release that defamed the plaintiff and that the press release circulated globally via the regulator’s global advisory networks and press distribution system. The details pleaded by the plaintiff in its statement of claim contained the requisite elements of a defamation claim against the individual defendant including what, when, how and to whom and the damages that the plaintiff suffered. The Court rejected arguments that because the Crown is liable for damages in respect of a tort submitted by a servant of the Crown, it was not necessary to name the individual defendant personally. The Court held that if the plaintiff properly pleads a cause of action against an individual employee, the plaintiff is entitled to maintain that claim notwithstanding a concession of vicarious liability by the Crown. An admission of vicarious liability does not negate a cause of action against a Crown employee.
2010 March 12
The Quebec Court of Appeal dismissed an appeal from a lower court injunction prohibiting the defendant from sending emails to the plaintiffs which they considered to be a form of harassment. Nevertheless the Court of Appeal held that a separate provision in the lower court’s order was overly broad and needed revision. That provision prohibited the defendant from communicating electronically with third parties about the plaintiffs. Accordingly, it was varied to prohibit communications on the Internet about the plaintiffs’ private lives.
2010 March 2
The Ontario Superior Court of Justice, on application by the plaintiff, struck out a counterclaim for abuse of process which had been filed by the defendant Bertucci to the plaintiff’s defamation action over comments published on the defendant’s internet website. The Court stated: “A libel notice or a defamation action may often cause the defendant to temper or avoid future critical comment of the plaintiff. It is not improper nor does a tort occur if a plaintiff commences a law suit to redress defamation and make the defendant aware that future defamatory comment will be responded to. The intent to silence through a defamation action is not a collateral or improper purpose [a required element of an abuse of process]”. “If [the plaintiff] Mr. Warman expresses controversial public opinions on matters of public interest and pursue litigation against those who defame him in their expressing disagreement with his opinions, neither his past controversial statements nor his law suits against others constitute a “collateral and improper purpose” to this defamation action against [the defendant] Mr. Bertucci.”
2010 February 10
The Quebec Superior Court granted an injunction prohibiting the publication of defamatory internet blog postings concerning the plaintiff bank as well as its directors, senior officers and representatives. The defendant failed to offer any evidence to justify “the vitriolic and malicious nature of most, if not all, of the remarks contained in the postings.”
2009 February 2
The Quebec Superior Court rejected the plaintiff’s request for a permanent injunction prohibiting the defendant from making accusations against the plaintiff or publishing harassing words to her or her friends. The defendant admitted creating a website which contained negative words about the plaintiff, but denied being the author of words which were posted under the name of an unknown third party. The court noted that the words complained of by the plaintiff had been withdrawn from the Internet site a considerable time before the injunction application was heard. The court was also critical of the scope of the injunction sought by the plaintiff.
2008 August 22
In this ruling, the Ontario Superior Court of Justice awarded legal costs of $2,800 to the plaintiff following a settlement agreement between the parties concerning a defamatory email transmitted by the defendant S in September, 2005 to a single recipient who was the director of operations for a company the plaintiff had just joined. The defendant S retracted and apologized for the allegations and agreed to pay $5,000 damages. Although the court found that the defendant corporation “apparently made some contribution” to the damages settlement, no costs were ordered to be paid by the corporation. The judge stated: “I fail to see any basis for the allegation that [the defendant corporation] was in any way responsible for the publication of the defamatory email” despite the fact that the individual defendant S sent the email from his office computer using a corporate email account. The court stated that it appeared “likely that [the individual defendant S] was on a ‘frolic of his own’” when he sent the email, and accordingly there was no basis for a finding the corporation was vicariously responsible for the individual defendant’s libel.
2008 July 14
In this ruling, the Ontario Superior Court ordered the consolidation for trial of two lawsuits for defamation arising out of an Aboriginal land claims dispute in Caledonia, Ontario. One of the two lawsuits involved libel claims by twenty-two police officers over certain postings about the Ontario Provincial Police on a website operated by McHale. The court also struck out a counterclaim by McHale alleging that Ontario’s Provincial Police Chief was guilty of the tort of unlawful “maintenance” of litigation because of his public statement that he would arrange for the O.P.P. to financially support the lawsuit against McHale. The court noted that the Police Services Act grants statutory authority for the plaintiff police officers to be reimbursed at the end of litigation if they acted in good faith. Furthermore, the statement by the Police Chief fell short of “stirring up” litigation and the Police Chief could not be considered guilty of “officious intermeddling” in matters that did not concern him.
2008 June 10
The British Columbia Court held that an article published on the defendant newspaper’s Internet site, which was identical in content to the hard copy newspaper article but did not name or picture any of the plaintiffs, falsely defamed three of the five plaintiffs by asserting that persons at the house located at a specified street address in Abbotsford had been carrying on a marijuana growing operation, had been suspected of being the victims of a pot rip-off, and had failed to cooperate with police as a means of covering up this illegal activity. Although none of the plaintiffs was either named or pictured in the Internet version of the article, three of the plaintiffs had “the necessary connection to the property so as to lead persons acquainted with them reasonably to conclude from the Internet article that they were the victims referred to.” However, the court noted that it was likely that some of the persons who also read the newspaper article had seen the hard copy article (which was accompanied by a photograph depicting three of the plaintiffs). The Internet article was held to exacerbate, to a minor degree, the defamation by the newspaper article of all five plaintiffs who were defamed by the hard copy article.
2008 May 1
In this ruling awarding libel damages to the plaintiff, the Ontario Superior Court of Justice stated that “by any reasonable definition, anything disseminated on the internet is intended for consumption by a wide audience and easily meets any reasonable definition of ‘publication’.” “Indeed, the very concept of a ‘worldwide web’ invites no other reasonable interpretation.” Although the defendant was not ordinarily resident in Ontario, the Court also granted an injunction “enjoining the defendant from engaging in the impugned conduct”.
2008 April 16
The British Columbia Court of Appeal held that where the Internet postings complained of by the plaintiff were posted on a website with restricted access that was not available to the public, there is no presumption it was read by anyone in British Columbia. In these circumstances, in the absence of evidence of publication from the plaintiff demonstrating there was publication to a person in British Columbia, the lower court judge did not err in dismissing this action against Yahoo.
2007 November 9
The British Columbia Supreme Court declined to decide issues raised by the petitioning ex-mayor for indemnity for legal fees he was incurring to defend a defamation action by a municipal employee which arose from certain publications by the petitioner during the municipal election campaign in the fall of 2005. The day after the petitioner lost the election, the municipal employee was reinstated to his position by the new mayor and council and filed a statement of claim alleging libel, including certain publications by the ex-mayor on his personal website. The Court held that the claim for indemnity would be best decided after the defamation trial has concluded.
2007 October 1
Fontaine v. Courchene, 2007 MBQB 238, appeal dismissed 2008: MBCA
The Manitoba Court of Queen’s Bench dismissed an application by the plaintiff, a former First Nation Band Councillor, for the payment by the defendants of interim costs to fund her action in defamation over an email allegedly disseminated to Band members. The Court held the plaintiff had failed to satisfy the test for such a rare and exceptional order which was reaffirmed by the Supreme Court of Canada in Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), 2007 SCC 2.
2007 May 23
The Ontario Superior Court of Justice rejected proposed amendments to the statement of claim in this action brought by an ex-lawyer in relation to allegedly defamatory statements contained in a Report published by the defendant Law Society of Upper Canada on the internet. The report was a brief summary of discipline proceedings against the plaintiff in 1997. The Court held that the Report was accurate and that the plaintiff’s proposed amendments therefore had no hope of success. “All aspects of the plaintiff’s defamation case are incapable of being proven and legally untenable.”
2007 January 3
The Saskatchewan Court of Appeal varied a lower court order striking a counterclaim against the plaintiff’s law firm as being frivolous and vexatious by permitting the individual defendant to counterclaim for alleged breach of fiduciary duty. The law firm had acted for the defendant in matters leading to his 1981 criminal code record (for which he was granted a full pardon in 1994) which became an issue when the plaintiff board caused a press release to be published in daily newspapers in Regina and Saskatoon announcing its legal action over “potentially libellous emails” which alleged that the school district, its schools and teachers are associated with an organization “directed and operated by an individual [the defendant] convicted of criminal offences.” The law firm conceded at the hearing of appeal that breach of fiduciary duty was properly pleaded by the defendant. “Since [the law firm] did act for the [individual defendant] in the criminal proceedings which played a prominent part in the subsequent proceedings it took on behalf of the Board against [the individual defendant], it cannot be said either that the pleadings in this respect disclosed no cause of action or that the pleadings were frivolous or vexatious. [The individual defendant] will, of course, have to prove at trial that the fiduciary duty of [the law firm] to [the individual defendant] continued to exist at the relevant time, notwithstanding that it had provided no services to [the individual defendant] for many years, that the members of the firm who acted for [the individual defendant in the criminal matters had left the firm many years before, and that the relevant files had been destroyed. While this may be difficult to prove or seem highly improbable, it cannot be said on the basis of the pleadings alone and the affidavits filed in support, that the claim is devoid of all merit of cannot possibly succeed. It is a matter for the trial judge to determine after hearing all relevant evidence. The Court of Appeal sustained the lower court’s decision to strike out the counterclaim for defamation relating to the allegation that the individual defendant had been convicted, noting that the pardon “cannot … change the historical fact that the convictions occurred and continued to exist for a period of time.” The Court of Appeal ordered that the counterclaim be stayed, however, until the original defamation action by the Board against the defendants over an email authored by the individual defendant and information on the defendant’s website is tried and determined.
2006 November 7
The Ontario Court of Appeal dismissed an appeal by the plaintiff from a decision of the Ontario Superior Court of Justice dismissing his action against the Council “claiming that the discipline decision [of the defendant Council] was wrong and that the [Council] had defamed him by publishing its decision on the Internet.” In a very brief ruling, the Court of Appeal held that having failed to appeal the Council’s decision, it was not open to the plaintiff to bring this action as it “constitutes an abuse of process and a collateral attack on the decision.”
2006 November 1
The Ontario Superior Court of Justice refused to allow the plaintiff to amend his statement of claim to claim damages arising from allegedly defamatory comments about the plaintiff on the internet and elsewhere, reasoning that although the evidence relating to the alleged defamation would have some peripheral relevance to the main action for alleged breach of contract, the defamation claim would add undue complexity, possible confusion and probable delay. The Court noted that the plaintiff had the right to commence a separate action concerning the alleged defamation and left open the possibility that the plaintiff could apply for an order consolidating the two lawsuits after the completion of discoveries.
2006 July 21
The Ontario Superior Court of Justice struck out all aspects of claims by the plaintiff for libel and damage to reputation for publishing allegedly untrue statements on a website and in other publications. The bulk of the defamation claim had already been raised in two previous civil actions, both of which were dismissed. The Court therefore ruled that it an abuse of process to raise the same points again in this action. The only part of the claim not previously dismissed “failed to set out a coherent cause of action” and was therefore struck out with leave to make one application to amend the statement of claim to express the plaintiff’s claim in a comprehensible fashion.
2006 May 4
The New Brunswick Court of Appeal sustained a decision that an insurer, Co-Operators Insurance Company of New Brunswick, had a duty to defend the Conservation Council of New Brunswick Inc. “CCNB”) against an action for defamation brought by Bennett Environmental Inc, on the basis that Bennett’s claim did not fall squarely within the exclusionary provisions of the insurance policy held by CCNB. The Court held it was impossible to distinguish between legal defence costs relating to allegations covered by the policy (i.e. certain material published in a newspaper) and those allegations not covered (website material); the latter being excluded from coverage under the policy.
2006 April 26
The Saskatchewan Court of Queen’s Bench struck out a counterclaim against the plaintiff School Board’s law firm in an action in which the Board alleged it was defamed by two emails and an article on an internet website. The counterclaim complained, among other things, about two letters from the law firm demanding compliance with the Board’s request for a cessation of communication and promising court action otherwise, for commencing this lawsuit, and for causing a report of the filing of the lawsuit to be published in two newspapers. The Court concluded that the law firm was named in the counterclaim “only because the law firm is doing its job as counsel for the Board” and that “the counterclaim against the law firm is intended to annoy or embarrass the Board, and is advanced with the ulterior motive of removing the law firm as counsel for the Board.”
2006 April 7
The Ontario Superior Court of Justice dismissed an action by the Town of Halton Hills against a local internet-based news purveyor on the basis that defamation actions by government are barred by the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms.
2005 November 18
The Alberta Court of Queen’s Bench found a non-party in civil contempt of Court in part for distributing a private confidential KPMG Interim Report (copied to the litigation parties pursuant to an Anton Piller Order) by-email to numerous other non-parties, without first obtaining leave of the Court. In the particular circumstances of this case, the Court found that this publication by e-mails was a violation of the sub judice rule, and presented a real risk of interference with the due administration of justice.
2005 September 27
The Alberta Court of Queen’s Bench ordered the plaintiff’s to provide particulars of the precise words they complain of in an email, portions of which had been incorporated by the plaintiffs in an Amended Statement of Claim. The Court held that allowing the plaintiffs to “incorporate whole paragraphs of an e-mail into their Amended Statement of Claim would be tantamount to a fishing expedition and would encourage speculative lawsuits. Further, the Court held that the Amended Statement of Claim should identify at least one recipient of the defamatory publication beyond themselves. In this connection, the Court stated: “With the exception of the internet ‘chat rooms’ mentioned in the Amended Statement of Claim, I am unsympathetic to the plaintiff’s concern that publication via e-mail is ubiquitous and accessible by multiple people. Sending a publication by e-mail is different that posting it on the internet; in each e-mail there is a list of addresses to whom the message has been sent. I regard email as being similar to regular mail because there is usually both an identified sender and recipient. I have seen no evidence that makes this case an exception.”
