



COURT OF APPEAL FOR ONTARIO

CITATION:
Baglow v. Smith, 2012
    ONCA 407

DATE: 20120614

DOCKET: C54350

Goudge, Sharpe and Blair JJ.A.

BETWEEN

John Baglow a.k.a.Dr. Dawg

Plaintiff (Appellant)

and

Roger Smith a.k.a. Peter ODonnell, Connie
    Fournier and Mark Fournier

Defendants (Respondents)

Peter F. Burnet, for the appellant

Barbara Kulaszka, for the respondents Mark and Connie
    Fournier

Heard: March 13, 2012

On appeal from the order of Justice P. Annis of the Superior
    Court of Justice, dated August 30, 2011, with reasons reported at 2011 ONSC
    5131, 107 O.R. (3d) 169.

R.A.
    Blair J.A.:

Overview

[1]

Commentators engaging in the cut and thrust of political discourse in
    the internet blogosphere can be fervent, if not florid, in the expression of
    their views.  This appeal arises out of such an exchange.

[2]

Mr. Baglow owns and operates a blog called Dawgs Blawg on which he
    posts left-wing opinions on various political and public interest issues using
    the pseudonym Dr. Dawg.  Mark and Connie Fournier operate and moderate a message
    board called FreeDominion, a site described as a venue for expressing
    conservative viewpoints.  Roger Smith, whose nom de plume in the blogosphere is
    Peter ODonnell, is a right-wing commentator who comments frequently on
    FreeDominion and other blogs, including the appellants.
[1]
Dr. Dawg and Peter ODonnell are vigorously critical of each others points
    of view.

[3]

Mr. Baglow freely acknowledges that debates on political blogs can be
    caustic, strident or even vulgar and insulting at times.  However, he
    maintains that Mr. Smith went too far in labelling him one of the Talibans
    more vocal supporters during one of their blogging altercations.  The comment
    was posted on the Fourniers FreeDominion site on August 10, 2010, and was made
    during a robust exchange concerning Canadas Conservative government and the
    validity of the detention of Omar Khadr  the young Canadian held by American
    authorities in Guantanamo Bay. Mr. Baglow objected to the commentary as being
    defamatory, and sued.

[4]

On a motion for summary judgment, Justice P. Annis dismissed the claim. 
    For the reasons that follow, I would allow the appeal and direct that the
    action proceed to trial.

Facts

[5]

Although the appellant posts his views under the moniker Dr. Dawg and
    his blog is called Dawgs Blog, his true identity as John Baglow is not
    hidden and is well-known among political bloggers.  A retired public servant
    who earns his income through short-term contracts with a variety of clients,
    including government agencies, the appellant has published opinion pieces in
    newspapers, and is recognized in the political blogging world for his left-wing
    beliefs and frequent criticism of right-wing views and policies.  He has
    actively opposed Canadas engagement in the war in Afghanistan and has
    supported the repatriation of Mr. Khadr from Guantanamo Bay to Canada on the
    grounds that he is entitled to be treated as a child soldier and in accordance
    with the rule of law.

[6]

The impugned remark was made during the back and forth that arose out of
    several postings written by the appellant on his own blog on August 8, 10 and
    13, 2010.  The motion judge had the entire record of that exchange before him,
    as do we.  Without reciting the details of the electronic dialogue in its
    complete detail, the following will provide the context and some insight into
    the flavour of the debate.

[7]

In the first posting, entitled Off with his head, the appellant called
    for a federal election and referred to supporters of the Conservative
    government as yokels with pitchforks, his particular appellation for those
    holding right-of-centre views.  He also posted a comment on blogger Jay
    Curries site, saying, Most of us have had our fill of slack-jawed yokel
    government.

[8]

Mr. Smith picked up the yokels with pitchforks theme, apparently with
    some sense of relish as he subsequently adopted the moniker Yokel with
    pitchfork in other unrelated blog postings.  In the exchange with Dr. Dawg,
    he posted a series of responses to the Off with his head commentary on Jay
    Curries blog over the next two days, speaking, as he said, on behalf of
    slack-jawed yokels (he means western Canadians, right?).  In the process, he
    raised the Omar Khadr issue:

Yokels with pitchforks ... sounds like beer and popcorn to me. 
    Where does Omar Khadr fit into your world view?  Now I would say psychopath
    with a rifle there.  But I understand he is on the short list for G-G in 2015
    once you get rid of us yokels and such.

[9]

After a further barbed exchange on Jay Curries blog, the appellant
    posted an entry on Dawgs Blawg, entitled The Gitmo Kanga-Ruse, in which,
    amongst other things, he referred to the trial of Mr. Khadr as a judicial
    lynching and added some further Canadian flavour:

And Stephen Harper and his minions, who have been praying for
    this moment to arrive, will be delighted ... Good luck with that.  Parrish (the
    person presiding at the Khadr trial) is already twisting the hemp in his
    hands.  And our own Prime Minister is part of the mob.

[10]

Rising
    to the bait, Mr. Smith responded in kind:

When you say Canadian you really mean Ontario Liberal.  Why
    dont you secede and form your own country?  Nobody else wants to share your
    country, you think that your town house socialist lifestyle is what everyone
    else wants, but its not  and you should get over yourselves and stop
    supporting the 7th century religious fundamentalist Taliban who think its cool
    to throw acid in womens faces if they dont obey their menfolk.  Is that now a
    Canadian value too?  I have zero sympathy for the Khadrs, the whole lot of them
    should be deported.

In the moral sphere, you seek complicity with the recent
    murders of American aid workers under the spurious (if outrageous) charge of
    spreading Christianity, when you sign up to support Omar Khadr.  I think such
    public declarations of support of Al Qaeda and the Taliban amount to treason,
    given that we are engaged in a war against them.  Its really only because the
    war is contained and not likely to be lost on our soil that these normal laws
    do not apply, or shall I say, are not being applied.  But the government of
    Canada would be quite within its legal rights to arrest the lot of you for
    treason.

[11]

Not
    finished for August 10th, Peter ODonnell wrote the complained of posting on
    the FreeDominion site under the heading Hey yokels with pitchforks, there is
    no libertarian base.  In it, he made the following remarks, including the
    allegedly defamatory statement that is bolded:

I think Canadas long-simmering cultural war is about to go
    viral.  I base this on two rather unrelated eruptions of Liberal/progressive
    angst (why cant they see that we are their natural superiors?) in the past
    few days.  On Monday, Liberal talking head Scott Reid, commenting on Harpers
    recent announcements concerning the long-term census, said he was pandering to
    the libertarian base, but that there is no libertarian base.  I will return to
    that rather astounding claim but first, the other salvo in the offensive.  Dr.
    Dawgs colourfully illustrated op-ed that describes the conservative base (for
    which nobody has claimed non-existence) amounts to yokels with pitchforks.
This coming from one of the Talibans
    more vocal supporters.
I suppose they are super-yokels with
    Kalashnikovs.

Later in the same posting, he
    continued:

Now, as to yokels with pitchforks, just one thing about that
    ... we have the pitchforks for a reason, to keep mad dogs at bay.  Or Bay and
    Bloor.  We also have virtual control over western Canada where all the money
    is, so if you elitists down there in Ontari-ari-ario want to retire before you
    are 87 and avoid a total economic collapse, then it might be smart to stop
    insulting everyone in western Canada every time you get anxious about having to
    live in the adult world, and perhaps think less about who we are and more about
    who you are, as in TRAITORS (collaboration with the enemy being the essential
    nature of TREASON, and treason being your apparent lack of concern for our
    national security and the safety of our fighting forces in the field of
    battle).  Or, perhaps you should just ship off to the nearest Al Qaeda training
    camp like your hero young Khadr did (with his traitor-familys blessing) and
    take up arms against the hated Western civilization that you so obviously
    detest.

[12]

Apparently
    the appellant is prepared to live with the traitor/treason tag, but he
    objects to the statement: This coming from one of the Talibans more vocal
    supporters.  He argues that it does not follow, simply because he opposes the
    war in Afghanistan and supports the rights of Omar Khadr to a fair trial, that
    he is a supporter of the Taliban.  Indeed, he considers himself to be a proud
    and patriotic Canadian who supports the Canadian Forces and has never argued
    that a victory by the Taliban would be a good thing.  In fact, he has
    criticized the Taliban as a dangerous, theocratic and tyrannical regime in many
    comments and blog postings.

[13]

Here,
    however, the issue is joined.  Mr. Smiths response to a posting written by the
    appellant on FreeDominion on August 11  where the appellant posted under the
    anonymous pseudonym, Ms. Mew  was succinct:

I dont see how its intellectually consistent to support Omar
    Khadr and say youre not supporting the Taliban.

[14]

In
    the posting by Ms. Mew  a not too subtle play on his Dr. Dawg moniker 
    the appellant complained of, but republished, the allegedly defamatory
    statement and identified Dr. Dawg as Baglow.  As Ms. Mew he replied to
    the foregoing comment by Mr. Smith:

Omar Khadr hasnt been convicted of anything.  Supporting due
    process and the presumption of innocence are apparently the same thing as being
    a Taliban supporter.  I hope Baglow sues your ass, quite frankly.  Youre
    utterly out of bounds on this.

[15]

Mr.
    Smith had the last word, however.  On August 11 he posted the following:

The false angst about Omar Khadr is disgusting to many
    Canadians who remember what happened to dozens of our fellow citizens on 9-11
    among the large international death toll, and what could easily have happened
    to any of us if we had been travelling in Bali, London or Madrid.  Or Mumbai on
    business for that matter.  People like the Khadrs relished those scenes and
    have chosen the path of terrorism, which is a cowardly and profoundly
    anti-democratic activity  even the Nazis had a state and wore uniforms.  The
    new crop of fascists (and thats who youre supporting, my proggy friends, a
    bunch of Islamo-fascists) dont have the courage to wear real uniforms, or
    fight under any recognized code of military engagement for their demented
    goals.  They choose entirely innocent groups of civilians as their targets.

[16]

On
    August 11, the appellant sent an email to the Fourniers stating that he had
    been libelled as one of the Talibans most vocal supporters and demanding the
    removal of the statement from their site.  The respondents refused.

[17]

The
    argument continued for a brief period following the appellants third Dawgs
    Blog posting on August 13, in which, amongst other things, he accused Mr.
    Smith of McCarthyism.  This generated a litany of additional responses from Mr.
    Smith along the same lines as outlined above concerning the effect of the
    terrorist activities of the Khadrs and their kind and equating support for Mr.
    Khadr with support for the Taliban and the enemies of our country.  The
    appellant closed the debate on August 13 with comments on his They dare call
    it treason posting, signing off with the suggestion: Youre out of your
    mind.  Get help, Roger.

[18]

I
    turn now to a discussion of the issues and why I say the matter must be
    remitted for trial.

Analysis

[19]

As
    the Supreme Court of Canada has recently reaffirmed in
Grant v. Torstar
    Corp.
, 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28, in order to
    establish a claim for defamation a plaintiff must establish that:

a)

the
    impugned words are defamatory, in the sense that they would tend to lower the
    plaintiffs reputation in the eyes of a reasonable person;

b)

the
    words in fact refer to the plaintiff; and

c)

the
    words were published, i.e., that they were communicated to at least one person
    other than the plaintiff.

Once the plaintiff has established these elements,
    falsity and damage are presumed, and the onus shifts to the defendant to
    advance an appropriate defence to escape liability.

[20]

Here,
    there is no dispute over (b) and (c).  The respondents admit having published
    the impugned statement and it is acknowledged that the statement, although made
    in the context of a debate with Dr. Dawg, was made in reference to the
    appellant.  The issues in the action are whether the statement is defamatory,
    whether the defence of fair comment is open to the respondents and, if the
    statement is defamatory and the defence does not apply, what are the
    appellants damages.

[21]

In
    addressing these issues the motion judge concluded, first, that summary
    judgment was appropriate because no genuine issue for trial arose with respect
    to any of the issues based on what he viewed as the complete record before him;
    secondly, that the impugned words were not capable of being defamatory of the
    appellant because they amounted to comment or a statement of opinion rather
    than a statement of fact, and therefore had a diminished tendency to lower the
    reputation of the appellant in the eyes of a reasonable reader; thirdly, that
    the impugned words were not in fact defamatory of the appellant because they
    lacked the sting of libel in the context of a political blog where insults were
    regularly treated as part of the give and take of debate; and finally, that in
    any event, the words complained of constituted a fair comment on a matter of
    public importance and that no malice had been proved.

[22]

Respectfully,
    the motion judge erred in granting summary judgment in these circumstances. In
    my view, there ought to be a trial.  For this reason, with one exception, I do
    not find it necessary to comment on his decision with respect to the substance
    of the defamatory claim and defences, except as needed to explain my logic for
    sending the matter back for trial.

[23]

The
    issues raised in this action are all important issues because they arise in the
    relatively novel milieu of internet defamation in the political blogosphere.  However,
    they are not issues that lend themselves to determination on a motion for
    summary judgment in circumstances such as this, in my view, particularly where
    the action is being processed in the simplified procedure regime.

[24]

As
    the motion judge readily acknowledged, 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: see
Cherneskey v. Armadale
    Publishers Ltd
., [1979] 1 S.C.R. 1067, at p. 1095, and because the
    question whether a statement is in fact defamatory has long been 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-examinations and possibly expert testimony.  Indeed,
    until the
Judicature Act
, R.S.O. 1980, c. 223 was replaced by the
Courts
    of Justice Act
S.O. 1984, c. 11, actions for libel and slander were among
    a small group of claims that the law required to be tried by a jury, unless the
    parties consented to waive such a trial: see
Judicature Act
, s. 57.

[25]

The
    motion judge concluded nonetheless that it was appropriate to grant summary
    judgment here, principally because the factual foundation of the case is
    largely captured in the extensive materials taken from the parties blogs and
    because there seems little in dispute of a factual nature that would be
    different were [the case] to proceed to trial.  On this basis, he concluded
    that there were no genuine issues for trial with respect to the following
    questions:

(a) whether the statement complained of
    was
capable
of being defamatory
    of the appellant;

(b) whether, if the statement were
    capable of being defamatory, it was in fact defamatory of the appellant in the
    context and circumstances in which it was made;

(c) whether the impugned statement
    constituted a statement of fact or a statement reflecting a comment or opinion;
    and

(d) whether the defence of fair comment
    provided a defence to the respondents, including whether malice was
    established.

[26]

The
    motion judge did not have the benefit of this Courts recent decision in
Combined
    Air Mechanical Services Inc. v. Flesch
, 2011 ONCA 764, 108 O.R. (3d) 1, in
    which a new test for summary judgment  the full appreciation test  was
    articulated.  The Court summarized that new test at paras. 54 and 55 as
    follows:

The point we are making is that a motion judge is required to
    assess whether the attributes of the trial process are necessary to enable him
    or her to fully appreciate the evidence and the issues posed by the case. In
    making this determination, the motion judge is to consider, for example,
    whether he or she can accurately weigh and draw inferences from the evidence
    without the benefit of the trial narrative, without the ability to hear the
    witnesses speak in their own words, and without the assistance of counsel as
    the judge examines the record in chambers.

Thus, in deciding whether to use the powers in rule 20.04(2.1),
    the motion judge must consider if this is a case where meeting the full
    appreciation test requires an opportunity to hear and observe witnesses, to
    have the evidence presented by way of a trial narrative, and to experience the
    fact-finding process first-hand. Unless full appreciation of the evidence and
    issues that is required to make dispositive findings is attainable on the
    motion record - as may be supplemented by the presentation of oral evidence
    under rule 20.04(2.2) - the judge cannot be "satisfied" that the
    issues are appropriately resolved on a motion for summary judgment.

[27]

In
    this case, the parties have put in play a scenario that, to date, has received
    little judicial consideration: an allegedly defamatory statement made in the
    course of a robust and free-wheeling exchange of political views in the
    internet blogging world where, the appellant concedes, arguments can be at
    times caustic, strident or even vulgar and insulting.  Indeed, some measure of
    what may seem to be a broad range of tolerance for hyperbolic language in this
    context may be taken from the apparent willingness of the appellant to absorb
    the slings and arrows of the traitor and treason labels without complaint.

[28]

Nonetheless,
    although the respondents come close to asserting  but do not quite assert 
    that anything goes in these types of exchanges, is that the case in law?  Do
    different legal considerations apply in determining whether a statement is or
    is not defamatory in these kinds of situations than apply to the publication of
    an article in a traditional media outlet?  For that matter, do different
    considerations apply even within publications on the internet  to a
    publication on Facebook or in the Twitterverse, say, compared to a
    publication on a blog?

[29]

These
    issues have not been addressed in the jurisprudence in any significant way. 
    The responses may have far-reaching implications. They are best crafted on the
    basis of a full record after a trial  at least until the law evolves and
    crystallizes to a certain point  in my view.  A trial will permit these
    important conclusions to be formulated on the basis of a record informed by the
    examination and cross-examination of witnesses and quite possibly with the
    assistance of expert evidence to provide the court  whose members are perhaps
    not always the most up-to-date in matters involving the blogosphere  with
    insight into how the internet blogging world functions and what may or may not
    be the expectations and sensibilities of those who engage in such discourse in
    the particular context in which that discourse occurs.

[30]

Although
    made against a slightly different background  whether a statement made using a
    microphone at a public rally was in law a libel or a slander  the observations
    of this Court in
Romano v. DOnofrio
(2005), 77 O.R. (3d) 583 confirm
    that novel questions of law or of mixed law and fact in defamation matters
    ought generally to be determined at a trial.  At paras. 7 and 9, the Court,
    citing
R. D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario
    Ltd.
(1991), 5 O.R. (3d) 778, observed that matters of law which have
    not been settled fully in our jurisprudence should not be disposed of at this
    [interlocutory] stage in the proceedings because they involve a type of
    interpretative analysis [that] should only be done in the context of a full
    factual record, possibly including appropriate expert evidence.

[31]

These
    considerations are particularly significant in relation to several of the
    issues here.  First, whether the words this coming from one of the Talibans
    more vocal supporters are in fact defamatory of the appellant depends upon a
    careful analysis of the context in which the statement was made, including not
    just a review of the electronic dialogue between Dr. Dawg and Peter
    ODonnell, which the motion judge had before him, but also an assessment of
    the two individuals and the view they took of the exchange  something that
    requires at least cross-examination on the positions they initially put forward.
    The analysis further requires a consideration of the view that a reasonable
    reader of the exchange may take of the exchange in the context, an issue that
    might well require some expert testimony for resolution as noted above.  For
    similar reasons, I am not convinced that either the issue of whether the
    impugned words constitute comment or fact or the issue of malice in
    relation to the defence of fair comment can be resolved at this stage.  They
    both require a delicate balancing of the factual context in its entirety for
    determination.

[32]

On
    the issue of malice alone, I am not persuaded that the fact Dr. Dawg and Peter
    ODonnell did not know each other personally and only communicated via the
    internet is dispositive.  Determining actual and express malice often requires
    that the trier of fact draw inferences from proved facts. Often, proof of
    malice is found beyond the four corners of the publication at issue.

[33]

In
    the particular circumstances of this case, there is an additional reason why
    summary judgment is not appropriate. I mentioned above the importance of
    examination and cross-examination in building an appropriate record in these
    kinds of cases.  The motion judge placed considerable emphasis on the fact that
    the parties [had] chosen not to exercise their rights of cross-examination on
    the affidavits filed.  In this respect, he misapprehended the proceeding.  The
    parties had no rights to cross-examine.  This action was commenced under the
    Simplified Procedure provisions of Rule 76; cross-examination of a deponent on
    an affidavit is not permitted: rule 76.04(1).

[34]

While
    acknowledging that there will be cases where summary judgment is appropriate in
    simplified rules cases, the Court in
Combined Air Mechanical
was
    nonetheless cautious about resort to such a remedy in such circumstances.  At
    paras. 255-257 it said:

When a judge is faced with a contested motion for summary
    judgment in a simplified procedure action that requires exercising the powers
    in rule 20.04(2.1), the judge will not only have to apply the full appreciation
    test, but will also need to assess whether entertaining the motion is
    consistent with the efficiency rationale reflected in the simplified procedures
    under Rule 76. We make two general observations that will inform this assessment.

First, summary judgment motions in simplified procedure actions
    should be discouraged where there is competing evidence from multiple
    witnesses, the evaluation of which would benefit from cross-examination, or
    where oral evidence is clearly needed to decide certain issues. Given that Rule
    76 limits discoveries and prohibits cross-examination on affidavits and
    examinations of witnesses on motions, the test for granting summary judgment
    will generally not be met where there is significant conflicting evidence on
    issues confronting the motion judge. While the motion judge could order the
    hearing of limited oral evidence on the summary judgment motion under rule
    20.04(2.2), in most cases where oral evidence is needed, the efficiency
    rationale reflected in the rule will indicate that the better course is to
    simply proceed to a speedy trial, whether an ordinary trial or a summary one:
    see rules 76.10(6) and 76.12.

Second, we are not saying that a motion for summary judgment
    should never be brought in a simplified procedure action. There will be cases
    where such a motion is appropriate and where the claim can be resolved by using
    the powers set out in rule 20.04 in a way that also serves the efficiency
    rationale in Rule 76. For example, in a document-driven case, or in a case
    where there is limited contested evidence, both the full appreciation test and
    the efficiency rationale may be served by granting summary judgment in a
    simplified procedure action.

[35]

While
    the motion judge did have an extensive record before him in the form of the
    entirety of the exchanges between the parties, this was not sufficient in my
    opinion.  It cannot be said that this is simply a document-driven case, or
    that this is a case involving limited contested evidence, as contemplated in
    the passage above, such that both the full appreciation test and the
    efficiency rationale may be served by granting summary judgment in a simplified
    procedure action.

[36]

No
    expert evidence was tendered 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
    appellants reputation in the estimation of a reasonable reader; indeed,
    ladening the record with the possibly contentious type of expert evidence
    needed in a first-impression case of this nature, and then seeking summary
    judgment, would be counter to the rationale underlying the simplified
    procedure.  The motion judge placed considerable weight on Mr. Smiths
    explanation for the comments he made in arriving at the decision that the
    impugned statement involved comment rather than fact and was, therefore, (a)
    less likely to be taken as defamatory, and (b) the basis for a fair comment
    defence.  Yet Mr. Smith was not cross-examined on the various important
    subtleties of that evidence, nor was he cross-examined on the issue of malice
    in the context of fair comment.  These issues need to be threshed out at a
    trial.

[37]

I
    mentioned that, with one exception, I would not deal with the decision of the
    motion judge on the merits of the defamation claim.  One issue requires
    comment.

[38]

In
    the process of arriving at his conclusions, the motion judge found that the
    impugned words were not defamatory because, having been made in the heat of
    what the motion judge saw as the modern-day equivalent to a live debate, a
    reasonable reader would have anticipated a rejoinder by the appellant, and in
    the absence of such a rejoinder, the statement could not be seen to have
    lowered the reputation of the plaintiff in the eyes of such a reader.  I would
    not want the failure to deal with that conclusion to be taken as acceptance of
    it.  That too, it seems to me, is an issue that needs to be fleshed out at
    trial, quite possibly, again, with the assistance of expert testimony.

Disposition

[39]

For
    the foregoing reasons, I would allow the appeal, set aside the order below, and
    direct that the action proceed to trial.

[40]

The
    appellant is entitled to his costs of the appeal, fixed in the total amount of
    $7,500 inclusive of disbursements and all applicable taxes.

[41]

Costs
    below were fixed in the amount of $6,500 in favour of the respondents.  I see
    no reason why the appellant should not be entitled to the costs below in the
    same amount.

R.A. Blair J.A.

I agree S.T. Goudge
    J.A.

I agree Robert J.
    Sharpe J.A.

Released: June 14, 2012





[1]
Mr. Smith, who was self-represented, did not attend the hearing of the appeal
    on March 13, 2012, but the Court was advised he was content to rely on the
    submissions made by respondents counsel.


