Canadian Update on Freedom of Expression

INTRODUCTION

The following is an overview/update on recent cases of interest concerning Freedom of Expression in Canada originally presented to the United States First Amendments Lawyers Association. Freedom of Expression is an entrenched Charter right under section 2(b) of the Canadian Charter of Rights and Freedoms.

Guarantee of Rights and Freedoms

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental Freedoms

Everyone has the following fundamental freedoms:

• (a) freedom of conscience and religion;
• (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
• (c) freedom of peaceful assembly; and
• (d) freedom of association.

Freedom of Expression is wider construct than Freedom of Speech and the jurisprudence on the topic is wide-ranging and not necessarily consistent. However, in recent years, the Supreme Court of Canada has issued some judgments that have better defined the scope and the tenor of the right to Freedom of Expression but it is important to note that in Canada we do not have the unbridled right to Freedom of Speech as exists in America. Indeed, hate speech is forbidden under the Criminal Code of Canada and there have been prosecutions in Canada for the dissemination of hate speech notwithstanding the right to Freedom of Expression under 2(b) of our Charter.

A particular example of that is a Supreme Court of Canada decision from 2013 Whatcott v. Saskatchewan Human Rights Tribunal, 2013 SCC 11. In that case, the Supreme Court of Canada defined what hate speech is. In Whatcott, in issue were two antigay flyers that contravened section 14 of the Saskatchewan Human Rights Code because they exposed persons to hatred and ridicule on the basis of their sexual orientation. The Supreme Court of Canada concluded that the section 14 of that Human Rights Code put a reasonable restriction on Mr. Whatcott’s rights to Freedom of Religion and Expression under the Charter.

Justice Rothstein, in deciding this issue, held that in the human rights setting where a reasonable person, aware of the context and circumstances, would view an expression as likely to expose a person to detestation and vilification on a prohibited ground of discrimination that this would amount to prohibited hate speech.

Justice Rothstein went on to to say that:

[41] In my view, “detestation” and “vilification” aptly describe the harmful effect that the Code seeks to eliminate. Representations that expose a target group to detestation tend to inspire enmity and extreme ill-will against them, which goes beyond mere disdain and dislike. Representations vilifying a person or group will seek to abuse, denigrate or delegitimize them, to render them lawless, dangerous, unworthy or unacceptable in the eyes of the audience. Expression exposing vulnerable groups to detestation and vilification goes far beyond merely discrediting, humiliating or offending the victims.

The court reviewed various authorities summarizing the “hallmarks of hate”, finding that such speech would blame members of the group for current problems in society alleging that they are a powerful menace, carrying out secret conspiracies to gain global control or plotting to destroy western civilization; labeling such people as criminals, parasitic or pure evil; equating a targeted group with groups traditionally reviled in society such as child abusers or defiant criminals, dehumanizing the targeted group by describing them as animals, lesser creatures or the like.

The focus of my paper is on some interesting cases that are on the public radar. There is no particular rhyme or reason to the ones I have selected. I am sure there are other legally interesting cases that I could have spoken about, however, the ones I have chosen to speak about are those that I found particularly interesting and thought that they would be interesting to our group.

Another overall consideration is that in Canada, we fairly recently had problems dealing with anti-SLAPP legislation (strategic litigation against public participation) and SLAPP defences are being used, albeit somewhat unsuccessfully, combined with a Freedom of Expression argument to defend against suits brought by corporations who felt defamed by their critics. The argument is that a defence of fair comment applies to protect a defendant who makes a comment on a matter of public interest provided that the comment is based on fact, is recognized as a public interest comment, and is not motivated by malice.

The Canadian Civil Liberties Association has argued that the common law of defamation should be brought into compliance with the Charter and require a “presumption in favour or expressive activity”. Of course, those suing are always saying that whilst Freedom of Expression is an important value, protection of reputation is also important and there is some discussion, at least in the British Columbia Court of Appeal level, about the adaptation of the United States test set out in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Those from America will correct me if I am wrong, but as I understand it that approach does away with common law presumptions of falsity and malice placing the onus instead on the plaintiff to show that at the time the defamatory statements were made, the defendant knew the statements to be false or was reckless as to their truth.

In Canada, that actual malice standard has not been adopted and it has been decided that the court should not reverse the common law onus of proof. The Supreme Court of Canada in Hill v. Church of Scientology of Toronto [1995] 2 SCR 1130, the defence in that case were advocating for the adoption of the actual malice liability standard as delineated in New York Times v Sullivan.

It is important to note that there is a distinction in Canada between government suppression of Charter of Rights and disputes between private entities alleging Charter infringements. The courts have consistently held that the Charter has no direct application to the common-law defamation circumstances where individuals are suing in their private capacities. The Charter only applies to governmental actions but the courts could turn to Charter values when applying and developing the common-law.

The court basically stated that in a private dispute, private litigants are not alleging a violation of their Charter right but addressing a conflict between principles and a more flexible approach should be taken and under a strict Charter analysis under governmental infringements wherein Charter values framed in general terms are weighed against the principles underlying the common law. Charter values will then provide the guidelines for any modifications to the common law, which the court feels may be necessary.

However in Hill, the court decided that the onus remains at all times with the party asserting that the common law is inconsistent with Charter values and it is up to the party challenging the common law to bear the burden of proving not only that the common law is inconsistent with Charter values but also that its provisions cannot be justified.

The court stated in Hill that:

The New York Times v Sullivan decision has been criticized by judges and academic writers in the United States and elsewhere. It has not been followed in the United Kingdom or Australia. I can see no reason for adopting it in Canada in an action between private litigants. The law defamation is essentially aimed at the prohibition of the publication of injurious false statements. It is the means by which the individual may protect his or her reputation which may well be the most distinguishing feature of his or her character, personality and perhaps, identity. I simply cannot see that the law of defamation is unduly restrictive or inhibiting. Surely it is not requiring too much of individuals that they ascertain the truth of the allegations they publish. The law of defamation provides for the defences of fair comment and of qualified privilege in appropriate cases. Those who publish statements should assume a reasonable level of responsibility.

1 Northwest Organics, Limited Partnership v. Maguire, 2014 BCCA 454

These principles were discussed in the British Columbia cases with which I was involved Northwest Organics, Limited Partnership v. Maguire, 2014 BCCA 454. The brief facts are that the Plaintiffs were corporations who owned property in a valley that was developing a compost facility. The defendants posted development of the facility and the defendants had published a number of documents by way of pamphleteering and also distribution of online material. Ms. Maguire was sued personally and her circumstances were such that she did not have the means in order to properly defend the suit. The Defendants ultimately claimed that the Plaintiff’s claim was a SLAPP lawsuit, the primary purpose of which was to infringe on the Defendants’ Freedom of Expression and applied under the Supreme Court Civil Rules of British Columbia arguing that the legal tests under the Supreme Court Civil Rules should be revised in the context of SLAPP cases – which would be a quantum shift from the common law burden of proof in defamation cases.

At the trial level, the British Columbia court was not enthused about adopting the arguments of the Defendants as to do so would radically change the substantive law of defamation. The case is an interesting one because it discusses defamation in the context of an argument that the Plaintiffs really did not have any interest in recovering their good name but in shutting down the comments of the Defendants. The Defendants’ argument was that speech engaging in a search for truth speech and speech aimed at participation of social and political decision-making (thus speech that is in the public interest) should be entitled to special protection.

The novel argument was that the protection take the form of a reversing of the onus when a Defendant argues that a Claimants defamation discloses no genuine issue and rather than forcing the Defendant to show that the Plaintiff’s case raises no genuine issue, the Plaintiff should be required to show that it has a serious case that justifies a chilling effect on the Defendant’s freedom of expression and a suggestion that the adoption of a two-part test in assessing a pretrial challenge to a claim of defamation which would be as follows:

1. Does the expression at issue fall within in the core areas of protected speech under section 2(b) of the Charter; and
2. If it does the respondent must justify the claim as genuine by establishing the claim:
   1. Is to compensate the significant injury to reputation;
   2. Has a significant likelihood of success; and
   3. Is the only practical response to alleged defamatory speech.

2. Paramount v. Johnston, 2018 ONSC 3711,

This case concerns an action brought by the owners of a Middle Eastern restaurant against two individuals who had made hateful comments about the restaurant in particular and Muslims in general. Mr. Banerjee, one of the Defendants, brought a motion to dismiss the defamation action before trial. Mr. Banerjee had attended the restaurant. Prime Minister Trudeau was attending a fundraising dinner there. Mr. Banerjee asserted that the sole purpose he was there was to protest the Khadr settlement. Eight videos were published on the website FreedomReport.ca. The videos made offensive comments against Muslims in general and about links of the restaurant to terrorist activities, referred to the Prime Minister as “Jihadi Justin” and made other offensive remarks against Muslims generally as creating serial rapists and Russia being a front for Islamic terrorism.

Mr. Banerjee raised a defence under section 130.1 of the Ontario Court of Justice Act, the Ontario AntiSLAPP legislation, and sought dismissal at the preliminary stage. In assessing the merits of the preliminary application to dismiss the case, the court referred to the Supreme Court of Canada decision in WIC Radio v. Simpson, 2008 SCC 40 asserting the issue of fair comment as it related to the law of defamation. There the court said:

The worth and dignity of each individual, including reputation, is an important value underlying the Charter and is to be weighed in the balance with freedom of expression, including freedom of the media. The Court’s task is not to prefer one over the other by ordering a “hierarchy” of rights…but to attempt reconciliation. An individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to “chill” freewheeling debate on matters of public interest. [Citation omitted.]

Of course that leads to the meaning of “public interest” as used in section 137.1 of the Ontario legislation citing jurisprudence of the Supreme Court of Canada on the definition of public interest the court held in Paramount Fine Foods that:

To be of public interest, some segment of the public must have a genuine stake in knowing about the expression. This is a normative determination. It is not simply a question of whether a subject matter would or would not interest some members of the public. It is broad in terms of matters that it can legitimately encompass ranging from politics, science, arts, environment, religion, and morality. There is no static list of topics that fall within it. It is said that to be of public interest, the subject matter “must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”: Brown, Raymond, The Law of Defamation in Canada, (Toronto: Carswell).

Whatcott v. Saskatchewan Human Rights Tribunal was also referred to in Paramount Find Foods to determine whether or not the speech at issue in Paramount was hate speech. However, the court declined to determine whether or not Mr. Banerjee’s utterances amounted to hate speech because it determined that the remarks of Mr. Banerjee lacked the hallmarks and attributes of an expression worthy of protection under the anti-SLAPP provisions.

The court also said that where there is expression that can be reasonably interpreted as both hate communication and a communication on a matter of public interest, that the Ontario legislation does not extend its protection. This is because hate communication raises no subject matter that is related to the public interest regardless of its other features and indeed, (and this may surprise some of my American friends), the courts have consistently held that the public interest lies in suppression of such speech.

One of the leading cases on hate speech is R. v. Keegstra [1990] 3 SCR 697. There our then Chief Justice Dickson stated that:

The suppression of hate propaganda undeniably muzzles the participation of a few individuals in the democratic process, and hence detracts somewhat from free expression values, but the degree of this limitation is not substantial. I am aware that the use of strong language in political and social debate — indeed, perhaps even language intended to promote hatred — is an unavoidable part of the democratic process. Moreover, I recognize that hate propaganda is expression of a type which would generally be categorized as “political”, thus putatively placing it at the very heart of the principle extolling freedom of expression as vital to the democratic process. Nonetheless, expression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values. Hate propaganda works in just such a way, arguing as it does for a society in which the democratic process is subverted and individuals are denied respect and dignity simply because of racial or religious characteristics. This brand of expressive activity is thus wholly inimical to the democratic aspirations of the free expression guarantee.

The court ultimately found that Mr. Banerjee’s comments went beyond the merely offensive or hurtful but had hallmarks of hate by referring to patrons as jihadists. The court held that statements that only Muslims, insurgents or terrorists were allowed into the Paramount restaurant can only inspire extreme ill will and disdain. Mr. Banerjee further stated that you would have to “rape your wife a few times to be allowed in” were representations that met the classic definition of abuse, denigrate or delegitimize those who attended the Paramount restaurant and its owners and that the expression rendered those owners as lawless, dangerous, unworthy and unacceptable in the eyes of the audience. His preliminary application to have the lawsuit dismissed was denied and the matter could proceed to trial.

3. Platnick v Bent 2018 ONCA 687

In a similar case, an action was brought by Dr. Howard Platnick against a lawyer and a law firm seeking damages for libel. The action was dismissed at the interlocutory level by a motion judge under the Ontario Anti-SLAPP legislation but on appeal, the Ontario Court of Appeal overturned that dismissal, finding that the motion judge erred in concluding that the appellant had not met his onus to continue with his action under the applicable Ontario legislation.

The facts are interesting in that Dr. Platnick is a medical doctor who spends most of his professional time preparing and reviewing medical assessments in disputes between insurers and accident victims. Dr. Platnick works almost exclusively for insurers. The Respondent is a lawyer and partner with Lerners LLP. She acts for individuals injured in accidents. Ms. Bent was also at the time the President-elect of the Ontario Trial Lawyers Association; an organization that primarily represents persons injured in motor vehicle accidents.

Ms. Bent had a client who was a doctor who claimed to have suffered catastrophic impairment in a motor vehicle accident which would permit her to claim enhanced medical and other insurance benefits from the insurer. There are certain tests that an individual has to meet to be defined as a catastrophic impairment under Ontario legislation which include a variety of medical assessments and a scoring system. An insurer can request a catastrophic impairment evaluation and did so in Ms. Carpenter’s case. The insurer retained Dr. Platnick who had never examined the injured person but was retained to do an impairment calculation based on the application of the applicable criteria on the basis of medical information available and basically conducted a review the medical documentation in the file and prepared his opinion finding that Dr. Carpenter did not meet the test for catastrophic impairment.

There was a signature page for a consensus conclusion of the assessment and it was never signed. The document was not signed by Dr. Platnick either. The document went to Carpenter’s lawyer, Ms. Bent, who went through the usual steps in arbitration and ultimately prevailed on behalf of her client by establishing that Dr. Carpenter indeed meet the test for catastrophic impairment after which the insurer offered to settle the case. The insured did so.

It was Ms. Bent’s view that the insurer settled in arbitration to avoid public scrutiny of the insurer’s conduct in respect of the medical opinion produced at the arbitration. It was Ms. Bent’s view that the insurer (and thus Dr. Platnick) had attempted to misrepresent the opinions of the medical experts and mislead the arbitrator.

What Ms. Bent did was post an email on the OTLA member listserve. Members who subscribe to the listserve are obligated to undertake in writing to maintain the confidentiality in the information found in the listserve. As you can guess, Ms. Bent’s email was leaked, first to an advocacy organization, and shortly thereafter to the press. Dr. Platnick became aware of the email shortly after it was sent. He requested an apology and retraction, heard nothing and thus commenced suit.

The motion judge granted Ms. Bent’s preliminary application for dismissal of the suit finding that:

1. The email constituted an expression in respect of a matter of public interest;
2. Dr. Platnick failed to satisfy the motion judge that there were grounds to believe that Ms. Bent did not have a valid defence to Dr. Platnick’s libel claim; and
3. Dr. Platnick had failed to satisfy the court that the harm likely suffered by him as a result of the email was sufficiently serious;
4. That the public interest in allowing Dr. Platnick to proceed with his claim was outweighed by the public interest in protecting Ms. Bent’s expression.

On appeal Dr. Platnick challenged all of those findings.

The Court of Appeal agreed with the motion judge that the email constituted expression in relation to a matter of public interest. The Court of Appeal found that the motion judge erred in importing the test of compelling credible evidence leading the motion judge to assess the ultimate merits of the case and the credibility of the claimants. Instead the issue for the motion judge is not built on the strength of the claim or the believability of the plaintiff but only whether the record provides a reasonable basis for believing the claim has substantial merit and that there is no valid defence.

The Court of Appeal disagreed with the motion judge and found that Dr. Platnick’s case had substantial merit because to succeed in a libel case a plaintiff must establish:

1. The words complained of were published to at least one other person;
2. The words complained of referred to the plaintiff; and
3. The words complained of, in a natural and ordinary meaning or some other meaning pled by the plaintiff are defamatory.

The really interesting part of the case is the issue of qualified privilege raised by Ms. Bent which applies to an occasion upon which a communication is made, that the person making the communication has an interest or duty – legal, social or moral – in making the communication to the person to whom it is made and if that person has a corresponding interest or duty in receiving that communication. The onus is on the defendant to establish that there is a qualified privilege which is a question of law for a trial judge.

Where things went wrong for Ms. Bent is that the Court of Appeal found that the comment that Dr. Platnick had changed another doctor’s opinion in another case could arguably fall outside of the privileged occasion with the posting on the listserve either because the posting was made maliciously or with reckless disregard for the truth because it is not an appropriate or legitimate purpose for the occasion attracting the privilege. The Court of Appeal held that a reasonable trier of fact could conclude that Ms. Bent went beyond the occasion of qualified privilege when she made that allegation and so there were reasonable grounds to believe that the defence would not succeed at trial and therefore not a valid defence within the meaning of the legislation.

Additionally, the Court of Appeal found the case brought by Dr. Platnick did not bear the stamp of a SLAPP suit in that there was no power imbalance between the parties to the lawsuit, or evidence that Dr. Platnick would continue to resort to litigation or that such litigation was to silence his critics, nor was he setting out to punish Ms. Bent. The Court of Appeal therefore determined that Dr. Platnick’s lawsuit could proceed and the defences raised would have to be decided at the trial of the matter.

The case has been appealed to the Supreme Court of Canada by Ms. Bent and her law firm.

4. Fleming v. Her Majesty the Queen in the Right of the Province of Ontario et al

This is another case that is going to be heard before the Supreme Court of Canada. Mr. Fleming sued the police for battery, false arrest and wrongful imprisonment including a claim that the police had breached his Charter Rights and Freedoms. He was successful at trial. The police officers appealed to the Ontario Court of Appeal.

The Court of Appeal decided that they would set aside the trial decision and order a new trial directed solely to the issue of whether excessive force was used when Mr. Fleming was arrested and if so, what damages flowed from that.

Mr. Fleming had been walking along the side of the road with the Canadian flag intending to attend a long planned flag rally involving the raising of the Canadian flag and speeches. Ontario police officers approached Mr. Fleming as he walked along the road basically boxing him in with two vans. He turned away from the vans and walked through a ditch to higher ground where, within seconds, he was wrestled to the ground. The police officers arrested Mr. Fleming in order to prevent an apprehended breach of the peace which arose out of a concern that 8 to 10 indigenous people walking towards Mr. Fleming were going to approach Mr. Fleming and may harm Mr. Fleming in some unspecified manner.

Mr. Fleming was charged with obstruction of a police officer. The charge was ultimately withdrawn. In the opinion of the Court of Appeal the majority held that the arrest of Mr. Fleming was justified. Mr. Justice Huscroft in dissent said their decision focused solely on the existence of the police duty to maintain the public peace and the effectiveness of the police. The majority’s decision implicitly directs Courts to show deference to police who “have a great deal more training and experience than do judges” and directs courts to be “very cautious about criticizing the tactical actions of the police”.

Mr. Justice Huscroft noted that:

… understates the importance of both the common law liberty to proceed unimpeded along a public highway and the right to engage in political protest – the heart and soul of freedom of expression in a democracy. At the same time, it overstates the scope of the police power to arrest someone to avoid a possible breach of the peace – a breach that may never occur, and a breach that, if it were to occur, would be caused by the unlawful actions of others. The police power to arrest for a possible breach of the peace is an extraordinary power. Its exercise cannot easily be justified, according to the case law of this court, which is based on the Waterfield test.

Mr. Justice Huscroft pointed out the majority held that in the face of a concern that illegal violence might occur, his colleagues sanctioned the removal and arrest of Mr. Fleming – whose exercise of Charter rights broke no laws – as a first option in preserving the peace rather than a last resort which he said, turns the concept of necessity on its head and that the breach could not be reasonably prevented by some alternative police action.

The argument of Mr. Fleming’s lawyers at the Supreme Court of Canada will be that the lawful exercise of civil rights can only be curtailed by the police where there is a reasonable belief that there are no other means available whereby an imminent breach of the peace can be obviated. This is a test of necessity which is to be expected can only be justified in extreme and exceptional circumstances. The action taken must be both reasonably necessary and proportionate. The argument is that the ancillary common law police power to arrest a person to prevent an apprehended breach of the peace is a last resort. If other less intrusive options are available, an arrest is not a minimal impairment, is not proportionate and cannot truly be called necessary. The case is awaiting argument in the Supreme Court of Canada.

5. Levant v Day, 2017 ONSC 5956

The Ontario Superior Court of Justice rejected a motion by Day seeking an order dismissing a defamation action on the basis of s. 137.1 of the Ontario Courts of Justice Act (the Anti-SLAPP provisions). A number of tweets were published in May, 2016. The Court concluded that the majority of the tweets were “thinly veiled attacks” on the plaintiff, not comments on matters of public interest, and that there were grounds to believe the defamation claim had substantial merit.

The Court reproduced the offending tweets in its judgment:

In a first series of Tweets, published on May 4, 2016, Mr. Day stated that Mr. Levant was engaging in a “scam” of “unadulterated sleaziness” so that he, either directly or indirectly, could improperly collect other people’s charitable tax credits and commit accounting fraud. This series of Tweets appears as follows:

1. 11:16 AM I think I see the scam… Ezra will take a tax write-off based on giving out things of “value”. What a con.
2. 11:20 AM Wait a minute… You get a tax credit if you donate to the Red Cross but not if you donate to Rebel Media…
3. 11:21 AM… So Ezra is collecting donations, which he will then donate to claim the now allowable tax credit…
4. 11:22 AM… All the while claiming a tax write-off by reimbursing donors things of “value”, for which he decides the value.
5. 11:23 AM Holy Mother of God, what a beautiful scam. You really have to appreciate it for its pure and unadulterated sleaziness and opportunism.
6. 11:28 AM I may dislike Ezra, but I have to admire the cold-blooded cynicism of someone who enriches himself at the expense of forest fire victims.

[12] Further, the defendant stated as fact that the funds raised would be secretly diverted away from the Red Cross and Fort McMurray, and toward the plaintiff’s personal expenses including for legal fees:

1. 4:01 PM Have to say, props to Ezra Levant for convincing his groupies to pay off his defamation judgments and legal fees.

[13] Based on the evidence, the Day Tweets included many factual allegations that were false, including that the plaintiff was deceiving donors, by falsely promising that they could receive tax receipts, that the plaintiff was someone who “enriches himself at the expense of forest fire victims”; and that the plaintiff has done this “scam” before.

[14] On May 13, 2016, the defendant posted Tweets, repeating the accusation that the plaintiff and/or Rebel Media were planning to improperly claim other donors’ charitable tax receipts, and added the new contention that the plaintiff had actually “cost” the residents of Fort McMurray up to $300,000.

1. May 13 11:09 AM… Fort Mac gets f….d out of matching federal (and possibly provincial) funds, costing more than 150 K (or is it 300 K?)…
2. 11:10 AM… Given the use of Indigogo, 5% is taken off the top and possibly more if one uses PayPal, screwing Fort Mac out of even more…
3. 11:11 AM… On top of which, since donors donated to Rebel Media instead of Red Cross, they are not eligible for charitable deduction credit…
4. 11:12 AM… Whereupon Rebel Media may very well, when they finally donate all that cash, attempt to claim it as a corporate deduction.

[15] In fact, donors were eligible for charitable tax receipts and the majority of the contributions were received by the Red Cross early enough to be matched by federal and provincial government funding. Indeed, on May 13, 2016, the Red Cross update on the fundraising website expressed gratitude and confirmation that they would provide a charitable tax credit to donors using the Rebel News website. The defendant saw this posting but neither retracted nor corrected his previous assertions that the plaintiff was conducting a scam, diverting funds away from Fort McMurray fire victims, keeping charitable tax receipts for himself and denying those tax receipts to the proper donors.

[16] The Day Tweets continued.

1. May 13, 2016 11:25 AM Wait… What the f..k?
2. 11:26 AM As if the Red Cross doesn’t have enough to do, now they have to allocate resources to clean up Ezra’s mess?
3. 11:29 AM Pardon my cynicism, but why should all those donors get tax receipts, since they didn’t follow the rules? F..k em.
4. 1:42 PM Apparently, Rebel Media is now an official fundraising arm of the Canadian Red Cross. Sweet.

[17] On May 21, 2016, the defendant claimed that the donations through the fundraising website did not qualify as charitable donations:

1. May 21, 2:14 AM By the way, here’s the two ways Ezra completely f….d all those Indigogo donors up the a..s.
2. 2:16 AM First, the rule seemed pretty clear – only donations to registered charities qualify as charitable donations.
3. 2:23 AM If I tried I could not have invented a scheme as sleazy or grandstanding or narcissistic as what Ezra came up with.

[18] On June 1, 2016, the defendant claimed that he had authoritative, factual information that the plaintiff was not conducting the fundraising website properly, was not telling the truth about its compliance, and because of this, Fort McMurray victims would not receive any matching funds from government.

1. June 1, 2:39 AM BTW, I am informed by knowledgeable people that Ezra’s bundling of donations is not eligible for matching funds.
2. 2:40 AM In short, with his attention whoring vanity project Ezra just f….d Fort McMurray out of $162,000 of federal funds.
3. 2:46 AM Because, once again, I have been assured that donors to Ezra’s vanity charity are not getting receipts. Period.

[19] The Day Tweets continued on June 3 and 4, 2016.

1. 11:50 AM… However if you already have a reputation as a liar, con artist and scumbag, there would be little of your reputation to damage.
2. 12:37 PM By the way, it is exactly accurate to say that Ezra Levant siphoned his money away from the Red Cross.

[20] In Tweets on June 4, Mr. Day continued to state that Ezra was “f…..g donors out of their tax receipts”, was “a sleazy opportunist, hack, con artist and grifter”, and that he was raising the money for himself.

The Court held that there were reasonable grounds to believe that no defence of fair comment was made out. As regards the defence of failure to give libel notice pursuant to section 5(1) of the Ontario Libel and Slander Act, the Court held that there was no case law interpreting this provision to include social media.

“…[T]he parties have not provided this Court with any evidence regarding the nature, characteristics and functioning of the Twitter technology, nor have the parties provided any social policy reasons for interpreting or extending the meaning or definition of broadcast to include Twitter…I am therefore of the view that the Act, as presently worded, does not apply to Twitter posts.”

The Court found there were grounds to believe that the defendant had advanced no valid defences. The interest in permitting the proceeding to continue to trial outweighed the public interest in protecting the impugned expression contained in the tweets.

6. Grabher v. Nova Scotia (Registrar of Motor Vehicles), 2018 NSSC 87.

This is an interesting case out of Nova Scotia. Mr. Grabher is a proud member of a long line of Grabhers and had a vanity license plate with his surname embossed on it. The Motor Vehicle Department Superintendent reversed its decision to issue the plate to Mr. Grabher and cancelled his license plate. He took the matter to the Nova Scotia Supreme Court seeking to overturn the decision to revoke his license plate.

The Superintendent tendered expert evidence on issue of the ordinary meaning of “grab her” and the offensive nature of such a license plate could make. A preliminary motion was brought to have the expert evidence kept out of the case but the judge decided that with some tweaking such an expert opinion was admissible in the case to determine the issue of the offensiveness of the last name and whether or not an ordinary person seeing that licence plate would feel threatened by the word set out therein.

The Province introduced expert testimony communications theory expert and McGill University feminist media studies professor Carrie Rentschler. Rentschler authored an expert report offering justification for the government’s removal of the plate on the basis that it may be interpreted as support for violence against women. According to Global News reporter Elizabeth McSheffrey, who is following the case Rentschler stated that in today’s cultural climate, in a population that is predisposed to interpret the name by reading the words it spells in English, it most likely would be perceived that way, rather than as someone’s last name. She claims that the message projected by the plate is an act of gendered violence. She said its removal from circulation would “increase the conditions” in which community members feel safe, based on years of research about how individuals fear sexual assault. “You would have no idea that this is somebody’s name,” she said in court. Apparently, Mr. Grabher disagrees.

I had a telephone conversation with Jay Cameron, the lawyer who is handling this matter, and he advises that closing arguments completed at the end of April and they are waiting on Reasons for Judgment, which he anticipates being released very soon. He advised me that there were two experts on sexual violence, one tendered on behalf of the Superintendent of Motor Vehicle and one on behalf of Mr. Grabher as to whether or not the phrase on a license plate would invoke sexual violence. Lengthy cross-examination was conducted of the expert of the Superintendent and a rebuttal opinion was provided by Mr. Grabher.

Interestingly, Mr. Cameron advises that he has three such license plate matters on the go. The other two are in Manitoba. One of the license plate cases is for an aboriginal client who had a license plate “NDN CAR” which has been revoked by the Motor Vehicle Department. The licence plate is a nod to Spence’s heritage and “the Native American national anthem” – the Indian Cars song by Keith Secola and the Wild Band of Indians. The other case is in Ontario and concerns a Star Trek fan who had been issued a license plate “ASIMIL8”. The plate is, according to its owner, a reference to the Borg, a villainous alien race that threatened Star Trek heroes with the phrase, “You will be assimilated.” An out of province complaint was made about the license plate and a hearing is taking place regarding that plate and a decision is pending.

The Province of Saskatchewan again this year rejected David Assman’s request for a vanity plate. There is no word on Mr. Assman pursuing a review of the decision in the Courts.

APPENDICES

1. Supreme Court to Consider Insurer’s Medical Examiner Defamation Suit Against Lawyer article by Greg Meckbach from Canadian Underwriter website article.
2. Fleming v. Her Majesty the Queen in the Right of the Province of Ontario et als – Memorandum of Argument (Pursuant to s. 40(1) of the Supreme Court of Canada Act)
3. Grabher v. Nova Scotia (Registrar of Motor Vehicles), 2018 NSSC 87
4. Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130, 1995 CanLII 59 (SCC)
5. Levant v Day, 2017 ONSC 5956
6. Maia Bent, et al v. Howard Platnick, et al, 2019 CanLII 35199 (SCC)
7. New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
8. Northwest Organics, Limited Partnership v. Maguire, 2013 BCSC 1328
9. Paramount v. Johnston, 2018 ONSC 3711
10. Paramount v. Kevin J. Johnston, 2019 ONSC 2910
11. Platnick v. Bent, 2018 ONCA 687
12. R. v. Keegstra [1990] 3 SCR 697
13. Saskatchewan (Human Rights Commission) v. Whatcott, [2013] 1 SCR 467, 2013 SCC 11 (CanLII)
14. WIC Radio v. Simpson, 2008 SCC

P.G. Kent Partner in Dispute Resolution Lindsay Kenney LLP – Langley Office