



COURT OF APPEAL FOR ONTARIO

CITATION:
Levant v. DeMelle, 2022 ONCA 79

DATE: 20220128

DOCKET: C69202 & C69203

Gillese, Trotter and Nordheimer
JJ.A.

BETWEEN

Ezra
Levant and Rebel News Network Ltd.

Plaintiffs (Appellants/
Respondents by way of cross-appeal)

and

Brendan
DeMelle
and The Narwhal News Society

Defendants (
Respondent/
Appellant by way of cross-appeal
)

AND BETWEEN

Rebel
News Network Ltd.

Plaintiff (Appellant/
Respondent by way of cross-appeal)

and

Al Jazeera
Media Network

Defendant (Respondent/
Appellant by way of cross-appeal)

A. Irvin Schein and Tamara
Markovic, for the appellants/respondents by way of cross-appeal

M. Philip Tunley, for the
respondents/appellants by way of cross-appeal

Heard: November 16, 2021

On appeal from the order of Justice James
F. Diamond of the Superior Court of Justice, dated February 16, 2021 and March
15, 2021, with reasons reported at 2021 ONSC 1074, and from the order of
Justice James F. Diamond of the Superior Court of Justice, dated February 16,
2021 and March 15, 2021, with reasons reported at 2021 ONSC 1035.
[1]

Nordheimer J.A.:

[1]

There are two orders in two separate
proceedings, the appeals from which were heard together. In each case, the appeal
is taken from the order of the motion judge, made pursuant to s. 137.1 of the
Courts
of Justice Act
, R.S.O. 1990, c. C.43, that dismissed an action involving a
claim for defamation. Additionally, in each appeal, there is a motion for leave
to cross-appeal from the motion judges award of costs.

[2]

Since the appeals were heard together, I will
deal with both of them in these reasons. While I do not agree entirely with the
analysis undertaken by the motion judge in either case, I agree with the
results that he reached and thus would dismiss both appeals. I do not, however,
agree with the motion judges costs awards in these cases. Consequently, I
would grant leave to appeal the costs awards, and allow each of those cross-appeals.

A.

BACKGROUND

[3]

Ezra Levant is a journalist and broadcaster. In 2015,
he founded Rebel News Network Ltd. According to Mr. Levant, in keeping with his
own personal beliefs, Rebel News adopted a conservative and pro-Israel
orientation. Mr. Levant also says that Rebel News could be considered to hold
an anti-Islamist orientation, Islamism being the political manifestation of
radical Islam. Rebel News believes that radical Islam promotes violence and
erodes secular civil liberties.

[4]

Brendan DeMelle is a journalist, writer and
researcher specializing in media, politics, climate change and clean energy.
Since 2010, Mr. DeMelle has reported on climate misinformation campaigns as the
executive director of DeSmog, an online news outlet focused on climate change
and environmental concerns.
[2]

[5]

Al Jazeera is a public utility private
corporation in accordance with the laws of the State of Qatar. Al Jazeera was
founded in 1996 and launched its English language branch in 2006. Its head
office is in the city of Doha, Qatar. Al Jazeera broadcasts worldwide.

(1)

The Al Jazeera statements

[6]

Rebel News alleges that Al Jazeera published
three separate defamatory statements in an internet article and YouTube video
published by it on or about September 29, 2019. Both the article and YouTube
video were co-produced by Ryan Kohls and Florence Phillips for a weekly program
called The Listening Post. Mr. Kohls is a journalist who has worked as an
interview producer for Al Jazeera since 2013. Ms. Phillips is a senior producer
and reporter who has worked for Al Jazeera since 2009.

[7]

The article was entitled The Right Perspective?
YouTube, Radicalization and Rebel Media. After describing Rebel News as one
of the internets most influential far-right publications, the article
contained the following statements:

Perhaps even more damaging to The Rebels
reputation has been its connection to violent acts; acts like the Finsbury Park
Mosque attack in London, the Quebec City mosque shooting, and in Fredericton,
New Brunswick, the murder of two police officers. In all three instances, the
men involved watched The Rebel Media and had become convinced Muslims were invading
their countries.

[8]

After receiving Notices of Libel from Rebel News,
in mid-November 2019, Al Jazeera published the following addendum:

Correction, November 15, 2019: Since this
report was first published, we have updated it to correct the following facts:
... In the web article it was stated that the perpetrators of three violent
attacks had all watched Rebel News. For strict factual accuracy, we have
clarified that they watched Rebel News or the work of their regular
contributors.

[9]

Within the YouTube video, the following
statement was made at the 22 second mark:

The content, typically disguised as
cutting-edge journalism, can have real-life ramifications; viral material that
is capable of not just radicalizing the views of those that watch it, but driving
some of them to acts of violence. Among the best-known practitioners of the
art: The Rebel Media.

[10]

At approximately the eight minute mark of the
same video, the following statement was made:

The Ottawa Police have filed a criminal
complaint alleging that Rebel Media had breached a section of the Canadian
Criminal Code by wilfully promoting hatred of the Muslim community.

[11]

Once again, after Al Jazeera received Rebel News
Notice of Libel, it published this addendum in mid-November 2019:

Correction, November 15, 2019: Since this
report was first published, we have updated it to correct the following facts:
In the video report we stated that the Ottawa Police had filed a criminal
complaint against Rebel. In fact, a complaint had been received by the Ottawa Police.

[12]

The program generated slightly fewer than 40,000
views on the internet.

(2)

The DeMelle statements

[13]

Mr. DeMelle wrote and published an article on or
about October 19, 2019. The article was entitled Right Wing Attacks on Greta
Thunberg: How Low Can They Go? Canadas Extremist Network The Rebel Tries for
the Prize.

[14]

In the article, Mr. DeMelle referred to Mr.
Levant and Rebel News as follows:

The Rebel was founded by disgraced neo-Nazi
sympathizer Ezra Levant, a climate denier who once interned at the Charles Koch
Foundation. Levant and The Rebel Media earned some notoriety for their
laudatory coverage of the deadly 2017 Unite the Right rally in Charlottesville.

[15]

In the article, the words laudatory coverage of
the deadly 2017 Unite the Right rally in Charlottesville are hyperlinked to an
article written by Dan Lett, on August 19, 2017, entitled Rebel Medias
meltdown and the politics of hate and published on the website of the Winnipeg
Free Press.

[16]

After receiving a Notice of Libel from the appellants,
in early November 2019, Mr. DeMelle made the following revisions to the
article:

(a) He removed the words disgraced neo-Nazi
sympathizer; and,

(b) He removed the words Levant and in
reference to the coverage of the Charlottesville rally, and amended the
description of that coverage by indicating that it had been provided with
respect to participants in the rally rather than the rally itself.

[17]

The article generated slightly fewer than 16,000
views on the internet.

B.

THE DECISIONS BELOW

[18]

Rebel News commenced a proceeding against Al
Jazeera seeking damages for defamation. Mr. Levant and Rebel News also commenced
a simplified procedure action against Mr. DeMelle and
The Narwhal News Society
for
defamation. Al Jazeera and Mr. DeMelle each brought a motion pursuant to s. 137.1(3)
of the
Courts of Justice Act
for orders dismissing the plaintiffs
actions.

(1)

The
Al Jazeera motion

[19]

The motion judge began by setting out the contents
of s. 137.1. He then properly set out the shifting burden on a s. 137.1 motion.
He said that the initial burden is on the defendant to satisfy the court that
the proceeding arises out of an expression made by the defendant and that the
expression relates to a matter of public interest. If the defendant meets its
onus, then the onus shifts to the plaintiff to show that there are grounds to
believe that the proceeding has substantial merit; that there are grounds to
believe that there are no valid defences; and that the harm suffered by the plaintiff
as a result of the defendants expression is sufficiently serious that the
public interest in permitting the plaintiffs action to proceed outweighs the
public interest in protecting the defendants expression.

[20]

The motion judge found that Al Jazeera met its
initial onus. There was no doubt that the expression was made by Al Jazeera.
Further, Rebel News conceded that the expression related to a matter of public
interest.

[21]

The burden then shifted to Rebel News. In
considering whether the proceeding had substantial merit, the motion judge
reviewed the evidence filed and the constituent elements of a claim for
defamation. Al Jazeera contended that the article and YouTube video would not
have lowered the reputation of Rebel News because Rebel News already had a
reputation of publishing hateful commentary disguised as cutting-edge
journalism. Consequently, according to Al Jazeera, the reputation of Rebel
News was already so low that it could not be further lowered by the contents of
the article and YouTube video.

[22]

The motion judge rejected Al Jazeeras argument.
He found that considering Rebel News existing reputation would involve too
close an examination of the merits of the action at an early stage of the
proceedings. He concluded that the statements in the article and YouTube video were
quite capable of being defamatory, and as such he held that there were
grounds to believe that the action had substantial merit.

[23]

The motion judge then considered the defences
raised and whether Rebel News had shown that none of them were valid. Three
defences were considered: (i) fair comment; (ii) justification; and (iii)
responsible journalism. The motion judge concluded that the first two defences
were not valid. However, he held that the third defence might succeed.
Therefore, the motion judge concluded that Rebel News had failed to show that there
was no valid defence and, consequently, its action had to be dismissed.

[24]

Notwithstanding his conclusion on that issue,
the motion judge went on to consider the final step of the analysis, that is,
which of the two public interests outweighed the other. He concluded that the
weighing favoured the public interest in protecting Al Jazeeras expression and
public debate. In doing so, the motion judge noted that Rebel News had not led
any evidence that it had suffered specific harm as a result of the article and
YouTube video.

(2)

The DeMelle motion

[25]

The motion judge generally followed the same
format in his decision on this motion. Again, there was no dispute that the
expressions were those of Mr. DeMelle. On whether the expressions related
to a matter of public interest, the motion judge concluded with some
reluctance that they did. Consequently, Mr. DeMelle had met his onus and
the burden shifted to Mr. Levant and Rebel News.

[26]

On the issue of whether the action had
substantial merit, the question again arose as to whether the reputations of Mr.
Levant and Rebel News could be lowered as a result of the expressions  an
argument that generally tracked the argument advanced by Al Jazeera on its
motion. Once again, the motion judge rejected that argument largely for the
same reasons he had when dealing with it in the Al Jazeera motion. The motion
judge concluded that the presence of grounds to believe that the defamation action
had substantial merit cannot be questioned.

[27]

Going on to the defences raised, the same three
defences were in play: (i) justification; (ii) fair comment; and (iii)
responsible journalism. In this case, though, the motion judge concluded that
none of the defences were valid. In finding that the defence of fair comment
was not valid, the motion judge found that referring to Mr. Levant as a
neo-Nazi sympathizer traverses too far into the realm of fact, or at least
imputation of fact, and thus could not constitute comment. Consequently, the
defence of fair comment was not available. In finding that the defence of
responsible journalism was not valid, the motion judge found that Mr. DeMelle
had not shown that he was reasonably diligent in verifying the accuracy of the
impugned expressions.

[28]

The motion judge then proceeded to the final
issue, the weighing of the competing public interests. On this issue, the
motion judge noted that Mr. Levant and Rebel News had not led any evidence of
specific harm or damage to their reputations as a result of the expressions. He
therefore found that Mr. Levant and Rebel News had not shown the necessary harm
that would outweigh the public interest in permitting public expression. Consequently,
he dismissed the action.

(3)

The costs awards

[29]

The motion judge addressed the costs of each
motion in brief written endorsements. He noted that s. 137.1(7) of the
Courts
of Justice Act
provides that, if the motion is granted and the proceeding
is dismissed, the moving party is entitled to its costs of the motion and the
proceeding on a full indemnity basis, unless the judge determines that such an
award is not appropriate in the circumstances. On both motions, the motion
judge found that an award of costs on a full indemnity basis was not
appropriate. Instead, he awarded each successful moving party its costs on a
partial indemnity scale.

C.

ANALYSIS

(1)

The
Al Jazeera motion

[30]

Rebel News asserts two main errors by the motion
judge. One has to do with the defence of responsible journalism. The other has
to do with the motion judges balancing of the public interests at stake.

[31]

Before turning to these issues, I should address
the argument over the proper standard of review. Rebel News contends that the
standard of review is correctness because it says that the motion judge
misconstrued the law on defamation and its defences. I do not agree. While
Rebel News dresses up its complaint as the motion judge having misconstrued the
law, what Rebel News is actually complaining about is the application of the
law by the motion judge to the facts of this case. That application is not
subject to a standard of review of correctness. Rather, the motion judges
decision is entitled to deference, absent a reviewable error:
Bent v. Platnick
,
2020 SCC 23, 449 D.L.R. (4th) 45, at para. 77.

a)

The defence of responsible journalism

[32]

Rebel News contends that the motion judge erred
in finding that the defence of responsible journalism might succeed because,
according to Rebel News, Al Jazeera did not act responsibly in respect to the article
and YouTube video.

[33]

I do not find a reviewable error in the motion
judges analysis of the defence of responsible journalism.

[34]

First, Rebel News submits that the motion judge
erred by not considering that Mr. Kohls, one of the authors of the expressions,
had not spoken to certain individuals who might have provided contrary
viewpoints to those that he had received, and thus the article could have been
more balanced.

[35]

I do not see anything in the requirements of the
defence of responsible journalism that places a burden on a journalist to
interview every individual who might conceivably have something to offer on the
subject being written on. Certainly, no such burden is to be found in the seminal
decision on this defence,
Grant v. Torstar Corp.
,

2009 SCC
61, [2009] 3 S.C.R. 640. Indeed, placing such a burden on journalists would seem
to be inconsistent with the point that McLachlin C.J. makes in
Grant
,
at para. 113:

The legal requirement to verify accuracy
should not unduly hamstring the timely reporting of important news.

[36]

The motion judge reviewed the steps that Mr. Kohls
had taken to verify the accuracy of the article and video. Of importance to
this issue is the salient fact that efforts had been made to interview Mr. Levant.
However, as found by the motion judge, at para. 66:

Given the opportunity to provide Rebels side
of the story, neither Levant nor Rebel provided any relevant comments,
responses or facts.

[37]

It is also relevant to this issue that, on a s.
137.1 motion, the motion judge is not finally determining whether a defence
will succeed. Consequently, the motion judge is not to conduct the equivalent
of a summary judgment motion. Rather, the motion judge only considers whether
there are grounds to believe that there is no valid defence. As Côté J.
explained in
1704604 Ontario Ltd. v. Pointes Protection Association
,
2020 SCC 22, 449 D.L.R. (4th) 1, at para. 37:

To be sure, s. 137.1(4)(a) is not a determinative
adjudication of the merits of the underlying claim or a conclusive
determination of the existence of a defence.

[38]

Rebel News has not shown any palpable and
overriding error in the motion judges determination of the adequacy of the
steps taken by Mr. Kohls in verifying the accuracy of the contents of the
article and YouTube video, given the limited analysis that the motion judge was
required to undertake. His conclusion on this issue is entitled to deference.

[39]

Rebel News second attack on the motion judges
conclusion is its contention that Mr. Kohls acted out of malice, and that fact precludes
Al Jazeeras reliance on the defence. The motion judge did not directly address
the contention that Mr. Kohls was actuated by malice. However, his conclusion
that the defence of responsible journalism could succeed carries with it the
implicit rejection of any allegation of malice, since the defence of
responsible journalism is not available if malice is present. As McLachlin C.J.
explained in
Grant
, at para. 92:

Furthermore, it makes little sense to speak of
an assertion of responsible journalism being defeated by proof of malice,
because the absence of malice is effectively built into the definition of responsible
journalism itself.

[40]

Rebel News third and final challenge to the
motion judges conclusion regarding the defence of responsible journalism is its
contention that the motion judge erred in finding that Rebel News was provided
with a proper opportunity to respond to the article and YouTube video before
they were published. It submits that there was no evidentiary foundation for
the motion judges conclusion to the contrary at para. 66 of his reasons, to
which I referred above.

[41]

There is no question that, in the context of a
defence of responsible journalism, the opportunity for the target of the
expression to respond is important. McLachlin C.J. makes this point in
Grant
,
at para. 116:

In most cases, it is inherently unfair to
publish defamatory allegations of fact without giving the target an opportunity
to respond. [Citation omitted.]

[42]

Rebel News asserts that Mr. Levant was given no
meaningful opportunity to reply, because none of the defamatory statements was
ever put to Levant for comment. The record does not bear out that assertion.
While the specifics of the article and video were not provided to Mr. Levant, Ms.
Phillips did tell him that Al Jazeera was working on a ten minute feature
film that will in large part focus on The Rebel Media  your history, the
outlets origins, the varied presenters you offer a platform to, and some of
the content that you produce. Ms. Phillips also told Mr. Levant of one
specific comment that was included in the video, and requested his response to
it:

The Rebel media is an alt-right media company
that creates content on a range of issues. I would say anti‑Muslim,
anti-immigrant, anti-refugee, anti-climate, anti-liberal, anti a lot of things
And unlike a real news organization they dont look for balance. They dont
look to try to actually find out whats really going on. But they simply try to
create narratives and anger that really get people riled up

[43]

Mr. Levant refused to provide any response to Ms.
Phillips. He said that he would respond to allegations of fact but not to
opinions. Ms. Phillips then sent him a more specific quote but was met with the
same response.

[44]

The record demonstrates that Mr. Levant was
given the opportunity to respond, on behalf of Rebel News, to the thrust of the
article and YouTube video. He declined to do so. There is nothing in the
decision in
Grant
, to my reading, that requires that the actual words
of the proposed defamatory allegations must be put to the subject of the
allegations. What Al Jazeera was required to do was give Rebel News an
opportunity to respond. In making that a meaningful opportunity, Al Jazeera
was required to give Rebel News the essence, or gist, of the proposed
publication, sufficient to allow Rebel News to understand what was going to be
said about it, and thus provide the necessary context for its response. That is
what Al Jazeera did.

[45]

On this point, I return to the nature of the
exercise being carried out by the motion judge. It is to determine whether
there are grounds to believe that a defence is not valid. It is not a
conclusive determination of that issue:
Pointes
, at para. 37. Whether
the opportunity to respond was sufficient is ultimately a matter for trial.

[46]

All that the motion judge was required to do was
to review the record and determine whether Rebel News had established that the defence
of responsible journalism was not a valid defence. In reaching a conclusion on
that question, the motion judge was not required to delve deeply into the
evidence, or to make findings of credibility, or to otherwise resolve disputed
questions of fact:
Pointes
, at para. 52. The role of the motion judge
is much more limited, which coincides with the limited record that will exist,
given the early stage of a proceeding when these motions are supposed to be
addressed. Once again, the motion judges conclusion, that the defence of
responsible journalism was available to Al Jazeera on the record, is entitled
to deference.

b)

The weighing of public interests

[47]

The second error alleged by Rebel News is the motion
judges weighing of interests under s. 137.1(4)(b). This weighing was described
by Côté J. in
Pointes
, at para. 61, as the crux of the analysis. The
subsection reads:

No judge shall dismiss a proceeding
under subsection (3) if the responding party satisfies the judge that,



(b) the harm likely to be or have
been suffered by the responding party as a result of the moving partys
expression is sufficiently serious that the public interest in permitting the
proceeding to continue outweighs the public interest in protecting that
expression.

[48]

In considering this issue, I am mindful of the
fact that the motion judge was not required to proceed to consider this issue
in light of his conclusion about the presence of a potentially valid defence.
Nonetheless, he chose to address the question in the interests of completeness.
His relatively brief analysis should be considered in that context.

[49]

Rebel News says that the motion judge erred in
requiring it to lead evidence of specific harm or damage when such evidence is
not required. In my view, this submission ignores the salient fact that Rebel
News is a corporation. It is not an individual. That is a significant
distinction in the law of defamation. For example, it directly affects the
level of damages that can be awarded. As Blair J.A. noted in
Barrick Gold
Corp. v. Lopehandia
(2004), 71 O.R. (3d) 416 (C.A.), at para. 49, quoting
from Peter F. Carter-Ruck and Harvey Starte,
Carter-Ruck on Libel and
Slander
, 5th ed. (London: Butterworths, 1997):

Limited companies, and other corporations, may
also be awarded general damages for libel or slander, without adducing evidence
of specific loss. However, it is submitted that in practice, in the absence of
proof of special damage, or at least of a general loss of business, a limited
company is unlikely to be entitled to a really substantial award of damages.

[50]

Rebel News did not lead evidence of any specific
harm it suffered as a consequence of the impugned expression. It was required
to do at least that. As Côté J. said in
Pointes
, at para. 71:

[T]he plaintiff need not prove harm or
causation, but must simply provide evidence for the motion judge to draw an
inference of likelihood in respect of the existence of the harm and the
relevant causal link.

[51]

One of the failings in the submissions of Rebel
News on this question is its reliance on cases such as
Montour v. Beacon
Publishing Inc.
, 2019 ONCA 246, leave to appeal to S.C.C. refused, 38657 (October
10, 2019);
Levant v. Day
, 2019 ONCA 244, 145 O.R. (3d) 442, leave to
appeal refused, [2019] S.C.C.A. No. 194; and
Lascaris v. Bnai Brith Canada
,
2019 ONCA 163, 144 O.R. (3d) 211, leave to appeal refused, [2019] S.C.C.A. No.
147. Those cases were all decided prior to the decision in
Pointes
and
the various refinements that that decision brought to the required analysis
under s. 137.1. Further, all of those cases involved individual plaintiffs,
where the harm to their reputations could be presumed, especially where their
reputations were otherwise seemingly unblemished.

[52]

In this case, any presumption of harm must be
limited, not only because Rebel News is a corporation, but also because there
was evidence before the motion judge that the reputation of Rebel News, however
one might characterize it, cannot be said to be unblemished. On this point, I
do find fault with the motion judges analysis of harm insofar as he said that
he was making no specific finding about the state of Rebel News reputation. I
do not understand how the motion judge could maintain that position, while at
the same time purporting to weigh the harm to the reputation of Rebel News
against the public interest in protecting the expression. It seems to me that a
consideration of the state of Rebel News reputation was a necessary step to be
taken in order to conduct a proper weighing.

[53]

For the purposes of that weighing, however, it
is sufficient to recognize the state of Rebel News reputation as it appears
from the record (not unblemished, as I put it earlier). Given that fact, it was
incumbent on Rebel News to lead evidence, either of business lost because of
the impugned expressions, or at least evidence that its reputation had been
harmed in some respect by them. This requirement is evidenced in
Pointes
,
at para. 72, where Côté J. said:

[E]vidence of a causal link between the
expression and the harm will be especially important where there may be sources
other than the defendants expression that may have caused the plaintiff harm.
[Citation omitted.]

[54]

Rebel News failed to lead specific evidence of
harm. Given the absence of such evidence, I agree with the conclusion that the motion
judge reached that weighing the two public interests favoured protecting the
expression of Al Jazeera. Any harm to Rebel News appears slight whereas the
harm that arises from interfering with publications by the media on matters of
public interest is significant.

(2)

The DeMelle motion

[55]

Mr. Levant and Rebel News assert two main errors
by the motion judge. One is that the motion judge erred in concluding that Mr.
DeMelles expressions relate to a matter of public interest. As in the Al
Jazeera motion, the second has to do with the motion judges balancing of the
public interests at stake.

[56]

The appellants, understandably, do not take
issue with the motion judges conclusion that there are grounds to believe that
none of the defences asserted by the respondent were valid. The respondent does
contest those findings, however, in responding to the appellants challenge to
the ultimate decision reached by the motion judge.

a)

Statements relating to a matter of public interest

[57]

The appellants take issue with the motion judges
conclusion that the impugned expressions were on a matter of public interest 
a conclusion that he reached with some reluctance. In making their
submissions, the appellants focus on the accusation that Mr. Levant is a
neo-Nazi sympathizer. They say that the accusation is nothing more than a
gratuitous insult and cannot be characterized as having anything to do with any
matters of public interest.

[58]

The flaw in the appellants argument on this
point is that they isolate the neo-Nazi sympathizer statement from the rest of
the article. That is not the proper approach to determining whether the
expression in issue relates to a matter of public interest. Rather, it is the
entire expression that must be considered. In other words, in this case, it is the
article as a whole that must be considered in determining whether the
expression is on a matter of public interest.

[59]

That this is the proper approach is clear from
the decision in
Grant
, which is referred to at some length on this
subject in
Pointes
. In
Grant
, McLachlin C.J. said, at para.
101:

In determining whether a publication is on a
matter of public interest, the judge must consider the subject matter of the
publication as a whole. The defamatory statement should not be scrutinized in
isolation.

[60]

It would appear that the motion judge took the
same erroneous approach to the issue of public interest. If he did not, it is
difficult to understand how he would have concluded with some reluctance that
the expression related to a matter of public interest. The article, taken as a
whole, clearly related to a matter of public interest. Indeed, it is difficult to
identify an issue that is more in the public interest currently than the issue
of climate change and its related topics, including the actions of climate
change deniers. The alleged actions of climate change deniers in terms of
trying to silence, or intimidate, or otherwise harass a person, who is as
outspoken on the subject of climate change as Greta Thunberg, would naturally
draw the publics interest. I see no reason for reluctance in concluding that
the expression related to a matter of public interest.

b)

The defence of fair comment

[61]

The question then becomes whether there are
grounds to believe that the respondent has no valid defence to the appellants
claim.

[62]

I do not consider it necessary to review each of
the three defences that the motion judge found were not valid. His conclusions
regarding the defence of justification and the defence of responsible
journalism were open to him on the record and are entitled to deference. However,
his analysis of fair comment is flawed, even though his conclusion that there
are grounds to believe that Mr. DeMelles fair comment defence is not
valid is correct.

[63]

The motion judge erred in concluding that calling
Levant a neo-Nazi sympathizer traverses too far into the realm of fact, or at
least imputation of fact, to permit a defence of fair comment. In so
concluding, the motion judge committed the same error that was identified by
the Supreme Court of Canada in
WIC Radio Ltd. v. Simpson
, 2008 SCC 40,
[2008] 2 S.C.R. 420. In discussing the difference between comment and fact in
that case, Binnie J., at para. 26, quoted with approval from the decision in
Ross
v. New Brunswick Teachers Assn.
, 2001 NBCA 62, 201 D.L.R. (4th) 75, at
para. 56, where the New Brunswick Court of Appeal said that comment"
includes a deduction, inference, conclusion, criticism, judgment, remark or
observation which is generally incapable of proof. Binnie J. also cited Raymond
E. Brown,
The Law of Defamation in Canada
(Scarborough: Carswell,
1994) (loose-leaf updated 2007, release 4), for the proposition that words that
may appear to be statements of fact may, in pith and substance, be properly
construed as comment. Of significance to this case, Binnie J. noted that:

This is particularly so in an editorial
context where loose, figurative or hyperbolic language is used in the context
of political debate, commentary, media campaigns and public discourse.
[Citation omitted.]

[64]

In the context in which it appears in the
article, the statement that Mr. Levant is a neo-Nazi sympathizer is clearly a
matter of comment. It therefore opens the door to the defence of fair comment. The
elements of that defence are well‑established. They were set out recently
in
Blair v. Ford
, 2021 ONCA 841, at para. 45:

There are five elements to the defence of fair
comment:

(i)      the comment must be on a matter of
public interest;

(ii)      the comment must be based on fact;

(iii)     the comment, although it can include
inferences of fact, must be recognizable as comment;

(iv)     the comment must be one that any
person could honestly make on the proved facts; and

(v)     the comment was not actuated by
express malice.

[65]

Where Mr. DeMelles reliance on this defence
falters is on the fourth element. Based on the record before us, no person
could honestly express that opinion on the proved facts. Undoubtedly, that is
the reason why, immediately upon the Notice of Libel being delivered, Mr. DeMelle
removed that comment from the article. The removal of the comment is not a
defence to the claim for defamation, however. Rather, it is relevant to the
issue of any damage that may have been caused by it: Raymond E. Brown,
Brown
on

Defamation: Canada, United Kingdom, Australia, New Zealand, United
States
(Toronto: Carswell, 1994) (loose-leaf updated 2020, release 5), ch.
25 at 124-25.

c)

The weighing of public interests

[66]

The motion judge concluded that the weighing
exercise required by s. 137.1(4)(b) favoured the respondent because, as
was the case in the Al Jazeera action, the appellants had not led any evidence
of particular or specific economic harm or damage to their reputation. Largely
for the same reasons that I have set out above in considering the weighing
exercise in the Al Jazeera motion, I agree with the motion judges conclusion,
but not with his analysis.

[67]

I begin by acknowledging that the harm analysis
is different in this case given the personal presence of Mr. Levant as a
plaintiff. The motion judge did not address that distinguishing factor. Some
level of damage to Mr. Levants reputation can be presumed from the defamatory
statement. However, that is not sufficient for the purposes of s. 137.1(4)(b).

[68]

The presumption of damages in a defamation
action involving an individual only goes so far. While it may be sufficient to
establish the existence of damages, it is not sufficient to establish the level
of those damages. This point is addressed in the decision of the Court of
Appeal (England and Wales) in
Lachaux v. Independent Print Ltd.
,
[2017] EWCA Civ. 1334, [2018] 2 W.L.R. 387,

where that court was
dealing with a statutory provision intended to limit actions for defamation and
create a higher threshold for making out a defamation claim  a not dissimilar
exercise as s. 137.1 engages. On the issue of the presumption of damages in a
defamation case, the court said, at para. 72:

[T]here is no presumption, at law, of
serious
damage in a libel case. Accordingly that, under s. 1(1), has to be proved. The
point nevertheless remains that serious reputational harm is capable of being
proved by a process of inference from the seriousness of the defamatory
meaning. [Emphasis in original.]

[69]

I accept that the neo-Nazi sympathizer comment
is a serious one. I would not, however, draw an inference that it resulted in serious
reputational harm to Mr. Levant on the record in this case. First, the
statement was fairly quickly removed from the article in question. Second, the
article itself drew limited attention, given the evidence that it generated
slightly fewer than 16,000 views on the internet. Third, is the evidence
regarding the state of Mr. Levants reputation as reflected in the affidavits
filed on behalf of the respondent. Balanced against all of that is the sole
statement of Mr. Levant in his affidavit:

I believe that the dissemination of these
defamatory statements has damaged my reputation in this regard, and accordingly,
Rebel News and I should be entitled to compensation.

That statement is not only self-serving,
it is completely devoid of any foundation for the belief.

[70]

Finally, on this point, when a person injects
themselves into public debate over a contentious topic, they must expect that they
are going to be met with some measure of rebuttal, perhaps forceful rebuttal,
by those who take an opposite view. The case of
WIC Radio
is an
example of that reality. The evidence demonstrates that the appellants quite
readily inject themselves into the public debate on many of these types of
issues. Indeed, there is evidence that they consider that to be part of the
rationale for their existence. The appellants should not be surprised when they
are then met with a response  even a very forceful response. While such
responses do not justify crossing the line into defamatory speech, they are a
factor to consider in assessing the level of damages that the defamatory aspect
of the response may create. As Binnie J. said in
WIC Radio
, at para.
4:

We live in a free country where people have as
much right to express outrageous and ridiculous opinions as moderate ones.

[71]

As I concluded with respect to the Al Jazeera motion,
the appellants have failed to lead evidence of any specific harm or any level
of serious harm. Balanced against whatever harm may be presumed, is the public
interest in protecting freedom of expression and in having robust debates on
matters of public importance. I agree with the motion judge that the appellants
failed to establish, in the words of s. 137.1(4)(b), that the harm likely to
be or have been suffered by the [appellants] as a result of [the respondents]
expression is sufficiently serious that the public interest in permitting the
proceeding to continue outweighs the public interest in protecting that
expression.

(3)

The costs awards

[72]

In both proceedings, the motion judge awarded
costs to the respondents on a partial indemnity scale. The respondents seek
leave to appeal from those costs awards, arguing that the motion judge erred in
departing from the presumptive scale of costs provided for in s. 137.1(7),
which reads:

If a judge dismisses a proceeding under this
section, the moving party is entitled to costs on the motion and in the
proceeding on a full indemnity basis, unless the judge determines that such an
award is not appropriate in the circumstances.

[73]

In the DeMelle motion, the motion judge said
that he considered a full indemnity award of costs not to be appropriate in
the circumstances of this case. It is not clear what circumstances the motion
judge was referring to. Slightly more clarity may be found in the motion
judges decision on costs in the Al Jazeera motion, where he said that [b]alancing
those findings, an award of full indemnity costs was not appropriate. The
findings to which he was referring were the responsible journalism defence and
the public interest in allowing Al Jazeeras expression, on the one hand, and
that Rebel News action had substantial merit and the two other defences
advanced were not valid, on the other hand.

[74]

I would grant leave to appeal in these cases
because I conclude that there are strong grounds upon which the appellate
court could find that the judge erred in exercising his discretion:
Brad-Jay
Investments Ltd. v. Szijjarto
(2006), 218 O.A.C. 315, at para. 21, leave
to appeal refused, [2007] S.C.C.A. No. 92. I reach that conclusion principally
because of the lack of reasons provided by the motion judge for his costs
awards.

[75]

When an action is dismissed under s. 137.1, the
statutory presumption is that the successful moving party will be awarded costs
on a full indemnity basis, unless the judge determines that such an award is
not appropriate. The statute does not provide any factors to be considered in
deciding when the presumptive award will not be appropriate.

[76]

That said, it is apparent from the wording of s.
137.1(7) that an award of full indemnity costs is not intended to apply to
every case where the action is dismissed. The subsection clearly leaves the
motion judge with the discretion to decide whether an award of full indemnity
costs is not appropriate in a particular case. The issue then becomes what
features will distinguish a case where an award of full indemnity costs is not
appropriate as opposed to one where it is.

[77]

In my view, merely concluding that there are
countervailing determinations on the factors that are required to be considered
under s. 137.1 is an insufficient basis to make a finding that it is not
appropriate to award full indemnity costs. If that was all that was required,
most cases would not draw a full indemnity costs award since, as the existing
case law under s. 137.1 amply demonstrates, there are countervailing
determinations in many cases. To adopt that as the distinguishing feature would
result in the presumptive costs award not being presumptive at all.

[78]

The genesis for a presumptive award of full
indemnity costs can be found in the Anti-SLAPP Advisory Panel,
Report to
the Attorney General
(Ontario: Ministry of the Attorney General, 2010) (the
Report). In
Pointes
, Côté J. observed that the Report is a
persuasive authority for the purposes of statutory interpretation as it was
the clear impetus for the legislation, and was relied upon heavily by the
legislature in drafting s. 137.1: at para. 14.

In the Report, the
authors said, at para. 44:

It is important that the special procedure
provide for full indemnification of the successful defendants costs to reduce
the adverse impact on constitutional values of unmeritorious litigation, and to
deter the commencement of such actions.

[79]

That statement reveals two factors driving the
reason for a presumptive award of full indemnity costs: (i) to reduce the
adverse impact on constitutional values of unmeritorious litigation; and (ii) to
deter the commencement of such actions. The reference to such actions, I
conclude, is a reference to actions that were launched with the intention to unduly
limit expressions on matters of public interest as set out in s. 137.1(1)(c).
In other words, what is typically referred to as a strategic lawsuit against
public participation (SLAPP).

[80]

On this latter point, I appreciate that the
decision in
Pointes
narrowed the relevance of the indicia of a SLAPP
lawsuit as they relate to the determination of a motion under s. 137.1: at
paras. 78-79. However, that narrowing related to the merits of the motion, and
not to the issue of costs and the appropriateness exception.

[81]

In attempting to give some guidance to the
appropriateness exception, I start with the recognition that this is a matter that
involves the exercise of the motion judges discretion. There will be many
different factors that may impact on the exercise of that discretion depending
on the circumstances of the individual case. Given the rarity of full indemnity
awards, the presence or absence of factors that might drive an award of costs
on a higher scale in regular civil litigation may be relevant to the exercise
of the appropriateness discretion in these special cases. For example, claims
borne of ulterior motives, which a SLAPP lawsuit represents, is an example of
one such factor.

[82]

Turning to the cases at hand, there is evidence
that these actions were commenced in an effort to quell the public expressions
made. They bear the indicia of a SLAPP lawsuit. Those indicia were set out by
Doherty J.A. in
Platnick v. Bent
, 2018 ONCA 687, 426 D.L.R. (4th) 60,
at para. 99, affd 2020 SCC 23:

·

a history of the plaintiff using litigation or
the threat of litigation to silence critics;

·

a financial or power imbalance that strongly
favours the plaintiff;

·

a punitive or retributory purpose animating the
plaintiff's bringing of the claim; and

·

minimal or nominal damages suffered by the
plaintiff.

[83]

Three of those four factors are present in these
cases, the sole exception being a financial or power balance that strongly
favours the appellants. There is a history of the appellants using litigation
to silence critics. Indeed, Mr. Levant has publicly proclaimed that commencing
such lawsuits is part of a deliberate campaign, which he calls his stop
de-platforming strategy. Other aspects of his public statements also make it
clear that there is a retributory purpose to bringing these claims. These
lawsuits are clearly designed to make critics think twice about expressing
their criticisms of the appellants for fear of being sued. Further, for the
reasons that I have already set out above in considering the issue of harm,
there is good reason to conclude that any damages suffered by the appellants
arising from the defamatory expressions are minimal.

[84]

These actions thus bear three of the four
hallmarks of a SLAPP lawsuit. It is such lawsuits that s. 137.1 was designed to
prevent, or at least quash at the earliest opportunity. As I have already set
out, it is the deterrence of such lawsuits that led to the Reports proposal
for full indemnity costs. The purpose behind the presumptive costs award
clearly applies to these cases.

[85]

In considering this issue, I am mindful of the
fact that costs awards are ones which normally attract a high degree of
deference from appellate courts given the nature and subjectivity of costs
awards. However, in this case, that high degree of deference is displaced by
the paucity of reasons offered by the motion judge for his awards, especially
where the motion judge was departing from a statutory presumption. In that
situation, there is an obligation to provide sufficient reasons for the
departure. In the absence of sufficient reasons, the costs awards are not
entitled to deference.

[86]

A further comment on the issue of the costs
awards is warranted. The respondents argue that the motion judge erred not only
in his determination of the merits of the actions but also in considering that
determination as a factor when deciding costs. I do not agree that the motion
judge erred in that regard. I have essentially addressed the respondents
challenges to the motion judges conclusion on the apparent merits of the
actions above. It is unnecessary to address those issues again in the context of
costs.

[87]

Before leaving the costs awards, I must address
one other issue. In the costs sought by Al Jazeera there was included time
charged by a solicitor in the United Kingdom. The justification for this
inclusion, that is offered by Al Jazeera, is that it is an international media
organization that was served
ex juris
in the United Kingdom with this
proceeding. Al Jazeera says that, in those circumstances, Rebel News must have
reasonably anticipated that it would incur such costs and thus they should be
recoverable. Al Jazeera does not provide any authority for this proposition.

[88]

On this point, the motion judge simply said that
the solicitor was not retained as an expert, and those fees are not
recoverable as disbursements. However, Al Jazeera was not seeking to
recover these expenses as a disbursement but, rather, was seeking to recover
them as part of the fees portion of their costs award.

[89]

Nevertheless, I agree with the motion judge that
the fees of the United Kingdom solicitor are not recoverable. Costs recoverable
in Ontario are determined in accordance with s. 131 of the
Courts of
Justice Act
and r. 57.01 of the
Rules of Civil Procedure
, R.R.O.
1990, Reg. 194. Rule 57.01(3) stipulates that when costs are awarded, they
shall be fixed in accordance with subrule (1) and the Tariffs. Tariff A,
which deals with the fees and disbursements that are allowable, expressly stipulates
that the fees that are recoverable are, first and foremost, lawyers fees.
The term lawyer is defined in r. 1.03 as a person authorized under the
Law
Society Act
to practise law in Ontario.

[90]

The end result is that fees recoverable as part
of a costs award relate only to lawyers who are authorized to practice in
Ontario. Absent evidence that the United Kingdom solicitor was authorized to
practice law in Ontario, the time spent by that solicitor is not recoverable as
part of the fees portion of the costs awarded. I repeat that this is not a case
where a foreign lawyer was retained to provide expert evidence. In that
situation, the expense of the foreign lawyer may be recoverable like the expense
of any other expert witness. However, that expense would be recoverable as a
disbursement and not as part of the fees portion of the costs award. I should
add that this result is not affected by the fact that this is a full indemnity
costs award. Regardless of the scale of costs awarded, the proper component
parts of a costs award do not change.

[91]

Consequently, in fixing the amount of the full
indemnity costs award in the Al Jazeera action, I have removed the amount
relating to the United Kingdom solicitor.

D.

CONCLUSION

[92]

I would dismiss both appeals. I would allow both
cross-appeals, set aside the costs awards below, and award full indemnity costs
to the respondent, Mr. DeMelle, in the amount of $65,403.99, inclusive of
disbursements and HST, and to the respondent, Al Jazeera, in the amount of $151,741.51,
inclusive of disbursements and HST. The respondents are also entitled to their
costs of the appeals. Having considered the bills of costs filed, I would fix
the costs to Mr. DeMelle in the amount of $15,000, inclusive of
disbursements and HST. I would fix the costs to Al Jazeera in the amount
of $20,000, inclusive of disbursements and HST.

Released: January 28, 2022 E.E.G.

I.V.B. Nordheimer J.A.

I agree. E.E. Gillese J.A.

I agree. Gary Trotter J.A.





[1]
The orders in issue improperly bear two dates. One date relates to
the disposition on the merits and the other to the disposition on costs. There
ought to have been separate orders signed, each bearing the date of the
disposition to which the order related.



[2]

The Narwhal News Society is a British Columbia not-for-profit
entity operating an online news and commentary service. From the record, it
does not appear that it participated in any of these proceedings.



