Malicious Accusations of Lies Against a Lawyer More Than Opinion

The much anticipated appeal in Awan v. Levant was released today by the Ontario Court of Appeal. The Superior Court of Justice decision, now largely upheld on appeal, was important because it deals with defamation against a lawyer, but also provided salient points for understanding the nuance of online defamation in the modern era.

Central to the plaintiff’s claim of defamation was that he was referred to as a liar by the defendant. Justice Feldman, for the court, referred to paras 26-27 of the Supreme Court of Canada’s decision in WIC Radio Ltd. v. Simpson,

[26] … Brown’s The Law of Defamation in Canada (2nd ed. (loose-leaf)) cites ample authority for the proposition that words that may appear to be statements of fact may, in pith and substance, be properly construed as comment. This is particularly so in an editorial context where loose, figurative or hyperbolic language is used (Brown, vol. 4, at p. 27-317) in the context of political debate, commentary, media campaigns and public discourse. See also, R. D. McConchie and D. A. Potts, Canadian Libel and Slander Actions (2004), at p. 340.

[27] …“What is comment and what is fact must be determined from the perspective of a ‘reasonable viewer or reader’” (Ross, per Daigle C.J.N.B., at para. 62)….

The court noted it is often impossible to ascertain a motive, so statements on matters of public interest will typically be construed as a statement of comment, and not fact. However, the context in this case it was open to the trial judge to conclude that the statement was not recognizable as comment, and even then, the defence of fair comment would fail,

[77] …As the trial judge found, the appellant failed to prove the truth of many of the underlying statements contained in the blog post, such as the reference to “taqiyya” (deception)…. Also, any potential defence of fair comment was defeated by the finding of malice. The trial judge found that the appellant was motivated by malice…

The one aspect that the court did overturn was the finding that the statement that the plaintiff was an anti-Semite was not one of opinion. The context of the facts here would suggest that a reasonable person would assume that this was the opinion of the defendant, not a conclusion of fact. Yet even here, the defence of fair comment could not work given the presence of malice.

The Court of Appeal’s decision is not particularly notable on the grounds of the appeal, as they largely upheld the trial judge’s decision. In discussing the level of deference appropriate, the court set the stage for the important an competing values at play,

[63] This guidance from the Supreme Court explains that the protection of free speech is not intended to be at the expense of a wrongfully defamed person’s ability to obtain a civil remedy for the tort of libel. The two rights live together under our law and are to be interpreted and applied by judges at both the trial and appeal levels…

What the decision may assist with is in the application of the new anti-SLAPP provisions in Ontario, which still leave much to be interpreted.

The first part of the test under s. 137.1(4)(a) is unlikely to be affected considerably. The presence of a defence, in this case the defence of fair comment, is unlikely to be affected by the case where merit can be demonstrated by the plaintiff.

The second part of the anti-SLAPP test under s. 137.1(4)(b) may benefit however from the balancing that occurs under this provision.

Despite the presence or existence of valid defences, or the characterization of statements as opinions and not facts, the presence of malice is devastating to a defamation defence.

The Court Appeal referred to the following passage in Hill v. Church of Scientology of Toronto,

145 Malice is commonly understood, in the popular sense, as spite or ill‑will. However, it also includes, as Dickson J. (as he then was) pointed out in dissent in Cherneskey v. Armadale Publishers Ltd., “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created. See, also, Taylor v. Despard. Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. See McLoughlin v. Kutasy at pp. 323‑24, and Netupsky v. Craig at pp. 61‑62.

The Court in Hill rejected the need for an “actual malice” rule in Canada as being unduly restrictive or inhibiting. Express malice can also defeat any qualified privilege based on the occasion upon when a communications is made. Malice may even be demonstrated when a statement is made dishonestly, or in knowing or reckless disregard for the truth, and this type of conduct will not necessarily protect against any of the defences to defamation.

Although the new anti-SLAPP provisions were created to encourage individual expression and broad participation on matters of public interest, there have been concerns that it would be misused to squelch legitimate defamation claims under the guise of public discourse.

The successful use of the defence of fair comment in Baglow v. Smith in the type of discourse described by the court as “rude, aggressive, sarcastic, hyperbolic, insulting, caustic and/or vulgar” would give substance to these concerns. The trial judge in WIC Radio (Simpson v. Mair and WIC Radio Ltd. identified similar conduct but refused to find malice as it was not the “predominant or primary motive” of the defendant (the Supreme Court did not address this on appeal).

The careful analysis conducted under s. 137.1(4)(b) should allow for the consideration of any malice, the potential presence of which would prevent a matter from being dismissed at the anti-SLAPP motion stage. As a careful weighing and analysis of malice can only occur during trial, this conclusion should not be made at the motions stage, and its potential presence can signal that a proceeding is “sufficiently serious” as to preclude dismissal.

In this case, the defendant expressly denied to the court any malice against the plaintiff. This denial is still insufficient to dismiss a finding of malice outright, as one of the potential basis for a finding of malice is recklessness.

The knowledge by a defendant that a reckless disregard for the truth may defeat any defences against defamation still has the effect of encouraging those making public statements to ensure that some efforts are made to ensure their veracity. The best way to ensure this would to bring the inaccuracies to the defendant’s attention, as the plaintiff in Awan has done, but also refrain from engaging with the defendant in hostile and acrimonious discourse, something the plaintiff in Baglow may have been less successful in doing so.

The anti-SLAPP provisions, in conjunction with the traditional application of the defences, should therefore promote and encourage the type of responsible and useful discourse which is healthy for a democracy, by creating consequences for those who exhibit knowing or reckless disregard.

Comments

  1. The “concern” that the new Ontario anti-SLAPP law would unduly restrict defamation claims has tended to come from plaintiffs’ lawyers whose clients enjoyed the ability to use such claims to bully their critics into submission. The statute is intended to change the law, to give more weight to expression in the public interest.

    Aside from whether the plaintiff can show grounds to believe that he/she/it has a good case and the defendant has no good defence, the court still has to weigh the potential or actual harm suffered by the plaintiff against the public interest in the expression. A good technical case on the existing law is not sufficient to allow a case to continue.

    The need for the plaintiff to show harm (which is not presumed), and the need for the court to balance that harm against the public interest in the expression, are both important features that the statute has added to the law.

    It is possible that tone of the expression, or its relevance, or evidence of malice in the popular or technical sense, would influence that judgment of the balance between reputation and expression.

    The element that sets off Ontario’s anti-SLAPP law from most of its counterparts elsewhere is that Ontario does not require demonstration of the plaintiff’s improper motive in bringing the suit. The Advisory Panel whose report forms the basis for the statute said it would be too difficult in a motion – with argument based on paper records – for a court to estimate motive. Thus the emphasis on judging the public interest, a matter in which courts have long experience.

    It would be a shame, and in my view contrary to the purpose of the statute, if the plaintiff could use a similar argument to defeat a motion to dismiss. The mere allegation of malice cannot require such subtle weighing and analysis that it must have a trial to sort out, as Omar suggests here.

  2. John,

    I’d think it goes beyond the plaintiff’s lawyers to the plaintiffs themselves (I say this as someone who does more defence work than plaintiff in this area). The case in Baglow I cite above does help illustrate this concern, and I’ll elaborate further.

    This case was initially dismissed on a summary judgment motion. That finding was reversed by the Court of Appeal. To recap, the facts of the case, as drawn from the plaintiff’s pleadings cited in the summary judgment motion, are as follows,

    On August 11, 2010, the defendant, Roger Smith, posting under the pseudonym Peter O’Donnell, posted a lengthy comment on FreeDominion which, inter alia, referred to the plaintiff as “one of the Taliban’s more vocal supporters”. The plaintiff objected to the comment as being defamatory and requested that the defendant Fourniers remove it from FreeDominion, which the Fourniers refused to do. The offending comment can still be accessed in the archives of FreeDominion.

    Despite his opposition to the war in Afghanistan, the plaintiff considers himself to be a proud and patriotic Canadian who supports the Canadian Forces, and he has never argued that he hopes they would be defeated or harmed by the Taliban. Nor has he argued that victory by the Taliban would be a good thing for Afghanistan or anywhere else. He has criticized the Taliban as a dangerous, theocratic and tyrannical regime in many comments and blog posts.

    A large part of the affidavits of the defendants in support of the within motion address the case of Omar Khadr, a Canadian being held by American forces at Guantanamo Bay, and the plaintiff submits that a reasonable person reading the affidavits of the defendants would conclude the defendants equate support for repatriating a Canadian citizen to Canada with vocal support for the Taliban. The plaintiff admits that he has argued in support of repatriating Omar Khadr from Guantanamo Bay to Canada and has criticized the Canadian Government for not doing more to effect this. The basis of the plaintiff’s objection is that Mr. Khadr was captured by American Forces when he was fifteen years old and is thus covered by the United Nations Convention of the Rights of the Child and especially Section 7 of the Optional Protocol to that Convention. In other words, he argues the continued detention of Omar Khadr is contrary to international law.

    This is a very principled position, one that is well-grounded in law and public policy, even if it does take place in the context of the type of debates that “can be caustic, strident or even vulgar and insulting.”

    Being called a vocal supporter of the Taliban amounts to an accusation of material support of terrorism. The Taliban is on Canada’s entities list, and this would violate the new provisions under s. 80.02 of the Criminal Code.

    To further elaborate on this context, I’d cite the following passage on a discussion of Maher Arar, the absolutely worst case of Canadian injustice on the issue of false allegations of terrorism,

    This prompted Kerry Pither, an Ottawa human rights activist and an advocate for Arar, to say, “if you are going to put a sensational allegation on page 1, the correction/clarification should also be on the front page.”
    Being called a terrorist is “worse than being accused of being a pedophile or a serial killer.”
    [emphasis added]

    Given this context, the trial judge did find the statements made by the defendant to be defamatory, but found that the defence of fair comment applied, and malice did not defeat this defence as it was not the dominant purpose [para 245],
     

    [238]      What constitutes “support” can be a wide variety of things.  For example, it can mean actual material support or giving aid and comfort to an enemy.  The impugned words might be taken to mean that Dr. Baglow’s views are tantamount to making common cause with the Taliban.  They might also be taken to mean that if his views were given effect the Taliban would be emboldened or encouraged in their cause.  An analogy can be drawn here to Jane Fonda’s anti-Vietnam war stance and that it emboldened the North Vietnamese in their cause.  It was Mr. Smith’s honestly held belief, articulated by him on several occasions, that support for Omar Khadr, who was fighting in Afghanistan against the United States amounted to support for the Taliban.  I note that others expressed similar views in the comments section to the blog “The Gitmo Kanga-ruse”.

    [239]      While it may not be reasonable to assert that because someone believes that Omar Khadr is entitled to Charter or International Law protections that person supports the Taliban, the test is not whether the opinion is reasonable.  In my view the test that is, whether anyone could honestly have held the view that support for Omar Khadr could be seen as support for the Taliban, has been met.

    While the analysis of the fair comment defence in this context is still questionable (but one the trial judge is entitled to deference over), this cannot be a proper analysis of malice, especially in light of the Court of Appeal’s decision in Awan and previous jurisprudence, which properly includes recklessness disregard for the truth.

    There is no public interest or merit to careless and false accusations of supporting terrorism, and doing so is in fact one of the most reckless and defamatory statements a person can make in the modern context.

    The anti-SLAPP provisions do have considerable utility in dismissing claims brought for improper purposes, but it is surely not improper to have all defences to an action properly assessed rather than applied summarily.

  3. I still think the original trial judge in Baglow got it right – given the context of a discussion board where everyone was calling everyone else names, and moderate voices were few. Who really takes what is said seriously, except as an echo chamber, in such forums? And what harm did Dr Baglow suffer from people like his adversaries on that board? Who would take them seriously?

    The anti-SLAPP legislation is not – in Ontario – about improper motives. It is about not burdening expression on matters of public interest with the traditional mechanistic rules of defamation law and the cost and distress of having to fight a case through to trial (not to mention the chilling effects on everyone else with an opinion on the topic.)

    If any case alleging malice has to go to trial, the statute will fail for those cases … and somehow plaintiffs’ counsel will discover that they can allege malice in every case.

Leave a Reply

(Your email address will not be published or distributed)