



COURT OF APPEAL FOR ONTARIO

CITATION:
Kam v. Canadian Broadcasting Corporation, 2022 ONCA 13

DATE: 20220111

DOCKET: C69274

Huscroft, Trotter and Coroza
    JJ.A.

BETWEEN

Michelle Kam

Plaintiff (Appellant)

and

Canadian Broadcasting
    Corporation, Zach Dubinsky and Lisa Mayor

Defendants (Respondents)

Christopher Stienburg, for the
    appellant

Andrea Gonsalves and Carlo Di Carlo,
    for the respondents

Heard: January 10, 2022 by
    video conference

On appeal from the order of Justice Eugenia
    Papageorgiou of the Superior Court of Justice, dated March 3, 2021.

REASONS FOR DECISION

[1]

The appellant argues that the motion judge erred
    in finding the photo of the appellant (Statement 6) in the second article was
    not defamatory. We disagree. The motion judge applied the proper test and her
    conclusion that the placement of the photo was not capable of bearing any of
    the defamatory meanings claimed by the appellant is entitled to deference.

[2]

The appellants main argument is that the motion
    judge erred in finding that she failed to demonstrate that the defence of
    responsible communication did not tend to weigh more in favour of the respondents.
    There is no merit to this argument.

[3]

The motion judge applied the proper legal
    framework from
1704604 Ontario Ltd. v. Pointes Protection Association
,
2020 SCC 22, and
Grant v. Torstar
, 2009 SCC 61, [2009] 3 S.C.R. 640,
    and her findings are amply supported by the record. It was reasonable for the
    respondents to conclude that the appellant chose not to respond to the
    allegations given her refusal to speak with the respondents concerning those
    allegations on several occasions. The motion judge made no error in finding
    that no material facts were omitted from the publication and again, her
    decision is entitled to deference.

[4]

Finally, the motion judge addressed the public
    interest balancing under s. 137.1(4)(b) only out of caution, in the event
    that her decision concerning the responsible communication defence was found to
    be erroneous. We have concluded the motion judge made no error in applying s.
    137.1(4)(a). As a result, her findings concerning s. 137.1(4)(b) are irrelevant
    and we are not to be taken as endorsing or rejecting them.

[5]

The appeal is dismissed.


[6]

The respondents are entitled to costs in the
    agreed amount of $8,300, all inclusive.

Grant Huscroft J.A.

Gary Trotter J.A.

S. Coroza J.A.


