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,
 … 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.
 …“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,
 …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,
 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.