



COURT OF APPEAL FOR ONTARIO

CITATION: Armstrong v. Corus Entertainment Inc., 2018 ONCA
    689

DATE: 20180830

DOCKET: C62752 & C62764

Doherty, Brown and Huscroft JJ.A.

BETWEEN

William John Armstrong

Plaintiff (Respondent)

and

Corus Entertainment Inc.
,
Craig
    Needles, Shawn Lewis,

Nancy McSloy, Joseph Wilson, Robert Spencer
,
Cheryl
    Miller, Christopher George and Stewart Blair
and
Jack
    McSloy

Defendants (
Appellants
)

Andrew F. Camman and Susan A. Toth, for the appellants, Nancy
    McSloy, Joseph Wilson, Robert Spencer and Jack McSloy

Peter M. Jacobsen and Julia L. Lefebvre, for the
    appellant, Corus Entertainment Inc.

Sean C. Flaherty, for the respondent

Heard: June 29, 2017

On appeal from the order of Justice Joseph M. W. Donohue
    of the Superior Court of Justice, dated September 2, 2016.

Doherty J.A.:

A.

overview

[1]

In 2014, William Armstrong, a candidate for city councillor in London,
    Ontario, sued his opponent, Nancy McSloy, for defamation. He also sued members
    of her campaign team and the local radio station. The claims arose out of
    certain remarks made during the municipal campaign.

[2]

All of the defendants brought a motion to dismiss the claim under s.
    137.1 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43 (
CJA
)
. The motion judge dismissed the motion. The defendants
    appeal.

[3]

For the reasons that follow, I would allow the appeal and dismiss the
    action against all of the appellants.

B.

background facts

[4]

In 2014, William Armstrong, an incumbent city councillor in London,
    Ontario, successfully ran for re-election against the appellant, Nancy McSloy. The
    appellants Joseph Wilson, Robert Spencer, and Jack McSloy were involved
    directly or indirectly in Ms. McSloys campaign. Mr. McSloy is Ms. McSloys
    husband. The appellant, Corus Entertainment Inc. (Corus), is a broadcasting
    corporation that operates a radio station (AM 980) in London. Corus also
    maintains a publicly accessible online database that includes podcasts of
    broadcasts and a page on which commentaries are posted.

[5]

Mr. Armstrong initially sued several other people as well, but he
    abandoned those claims.

[6]

The allegation against Mr. McSloy is based on a single Facebook post he
    made on August 30, 2014. The claim against Mr. Wilson is based upon a single Facebook
    post he made on September 2, 2014, in response to Mr. McSloys post. The claim
    against Mr. Spencer arises out of two Twitter posts he made on September 4 and 5,
    2014.

[7]

The claim against Ms. McSloy is based on several statements. In early September
    2014, she issued a press release through Facebook in which she stated that Mr.
    Armstrong had been convicted of sexual assault many years ago. She stated that
    her release of the information was not about political campaigning or
    mudslinging, but was rather because she was concerned for [her] own safety,
    [her] familys safety, as well as the safety of the residents of [her]
    community. She went on to indicate that Mr. Armstrongs conviction was part of
    a disturbing pattern of bullying and intimidation by him.

[8]

Mr. Armstrong had in fact been convicted of sexual assault in 1987. Neither
    Ms. McSloys assertion that Mr. Armstrong had been convicted of sexual assault,
    nor the details surrounding that conviction, are the subject of the defamation
    claim. The claim focuses on Ms. McSloys assertion that Mr. Armstrong has shown
    a pattern of unethical and illegal conduct, including the sexual assault, used
    to bully and intimidate others.

[9]

On September 5, 2014, following her press release, Ms. McSloy appeared
    on the Craig Needles Show, a talk radio program broadcast by Corus on AM 980. Municipal
    politics was a common topic on the broadcast.

[10]

Mr.
    Needles began the broadcast by summarizing Ms. McSloys press release. He then
    questioned her about the press release, specifically asking her why she chose
    to make a 25-year-old criminal conviction public in the middle of an election
    campaign. Ms. McSloy responded, as she had in her press release, by insisting
    that she was not seeking political gain, but was concerned about her safety,
    her familys safety, and public safety. She said that people have the right to
    know this concern. She indicated that Mr. Armstrongs prior conviction was
    consistent with a disturbing pattern of bullying and intimidating conduct by
    Mr. Armstrong over the years. Ms. McSloy identified prior instances that she
    said demonstrated that pattern. One of those incidents involved a dispute
    between Ms. McSloy and Mr. Armstrong earlier in the year over her continued involvement
    with a volunteer community organization after she announced she was running for
    city council.

[11]

In
    his claim, Mr. Armstrong alleged that the plain and ordinary meaning and/or
    innuendo of the various statements made by all of the personal appellants was
    that Mr. Armstrong was unethical, a threat to the safety of individuals in the
    community, would engage in criminal conduct, and would bully and intimidate others,
    both generally and in the context of the election campaign. Mr. Armstrong asserted
    that the statements were defamatory, clearly referred to him, and were
    published to others. He alleged malice against the individual appellants, but
    not against Corus.

[12]

The
    allegations against Corus arose out of the September 5 interview with Ms.
    McSloy on Mr. Needless show, a podcast of that interview posted on the AM 980
    website the same day, and an article posted on the website the same day,
    entitled Bombshell in Ward 2 Council Race, that referenced Ms. McSloys
    interview at length. Attached to the article was a newspaper article from 1987
    detailing the sexual assault allegation and the related court proceedings
    against Mr. Armstrong.

[13]

The
    claim against Corus arises out of its publication of Ms. McSloys allegedly
    defamatory statements. I do not understand Mr. Armstrong to allege that Corus
    made any defamatory statements apart from its repetition of those made by Ms.
    McSloy, either in her press release or in her interview with Mr. Needles.

[14]

The
    motion judge struck the claim based on the broadcast itself for failure to
    comply with the notice requirements in s. 5(1) of the
Libel and Slander Act
,
    R.S.O. 1990, c. L.12. However, that provision did not apply to the posting of
    the broadcast on Coruss website. There is no appeal from that part of the
    order.

C.

the section 137.1 motions

[15]

After
    the appellants had filed their Statements of Defence, they moved for a
    dismissal of the action under s. 137.1 of the
CJA
. The motion judge
    held that the appellants had satisfied him that the expressions that were the
    subject matter of Mr. Armstrongs claims related to a matter of public
    interest as required by s. 137.1(3). That finding is not in dispute on the
    appeal. Nor should it be. Statements about a candidates fitness for office
    made in the course of an ongoing election campaign undoubtedly qualify as
    expression relating to a matter of public interest.

[16]

Having
    concluded that the appellants met their onus under s. 137.1(3), the motion
    judge turned to s. 137.1(4). That provision put the onus on Mr. Armstrong to
    satisfy the motion judge that:

·

there were grounds to believe that his claims had substantial
    merit (s. 137.1(4)(a)(i));

·

there were grounds to believe that the appellants had no valid
    defence to the allegations (s. 137.1(4)(a)(ii)); and

·

the harm suffered or likely to be suffered by Mr. Armstrong as a
    result of the appellants statements was sufficiently serious that the public
    interest in permitting him to proceed with the litigation outweighed the public
    interest in protecting the appellants freedom of expression (s. 137.1(4)(b)).

[17]

The
    motion judge treated the personal appellants as a group and did not distinguish
    one from the other. He attributed statements made by one to all. For example,
    at para. 38, he observed:

The statements of all of the personal Defendants advance four
    allegations of fact:

(a) Armstrong bullied Nancy McSloy and others
    over her volunteer work.

[18]

Some
    of the statements attributed to Ms. McSloy did refer to the bullying she was
    allegedly subjected to in relation to her volunteer work. However, none of the
    statements attributed to the other personal appellants made any reference to
    that fact.

[19]

The
    motion judge also treated the personal appellants as a single entity when considering
    harm for the purpose of s. 137.1(4)(b). For example, in assessing the potential
    harm to Mr. Armstrong from the impugned statements, the motion judge did not
    distinguish between the single post made by Mr. McSloy to a small audience of
    his Facebook followers and the much more detailed statements made by Ms. McSloy
    to a much broader audience.

[20]

The
    motion judge made brief reference to the onus on Mr. Armstrong under s.
    137.1(4). He observed that Mr. Armstrong was not required to establish either
    substantial merit or the absence of a valid defence on the balance of
    probabilities. He made no further reference to the legal test to be applied
    under ss. 137.1(4)(a) or (b).

[21]

The
    motion judge concluded that there was substantial merit to Mr. Armstrongs
    assertions that the impugned statements, when read as a whole, referred to Mr.
    Armstrong, were published to others, and bore various defamatory meanings. The
    motion judge addressed the specific defences that were raised by the personal
    defendants and by Corus. He concluded there were grounds to believe that none
    were valid.

[22]

In
    holding that Mr. Armstrong had met his onus under ss. 137.1(4)(a)(i) and (ii),
    the motion judge was critical of the hearsay nature of much of the evidence
    contained in the affidavit of the personal defendants counsel, filed on their
    behalf. He said nothing about the affidavit of Nathan Smith, the Program and
    News Director at AM 980 at the relevant time, filed on behalf of Corus. The
    motion judge also made no reference to the affidavit and cross-examination of
    Mr. Armstrong.

[23]

In
    his public interest analysis under s. 137.1(4)(b), the motion judge
    acknowledged that there was a public interest in protecting expression about a
    candidates suitability for office. He then proceeded to assess the potential
    harm to Mr. Armstrong. The motion judge set out the various defamatory meanings
    that a reader could take from the impugned statements. He also described in
    general terms, without any reference to the specifics of this case, the
    potential for the continual and wide dissemination of statements posted on the
    internet. He concluded, at para. 69:

I am brought to the conclusion that the harm likely to have
    been suffered by Mr. Armstrong as a result of the Defendants expressions is
    sufficiently serious that the public interest in permitting the lawsuit to
    continue outweighs the public interest in protecting those expressions.

[24]

The
    motion judge dismissed the motions. He awarded costs in the cause to Mr.
    Armstrong in the amount of $15,862.15.

D.

the appeal by corus

[25]

Corus
    advanced various defences in its Statement of Defence and the affidavit of Mr. Smith.
    Mr. Smith was not cross-examined.

[26]

Corus
    argued that, having regard to the Statement of Defence and the material filed
    on the motion, Mr. Armstrong had failed to show that there were grounds to
    believe that Corus had no valid defence to the defamation allegations. The
    motion judge rejected this submission. I will focus on the motion judges
    finding as it relates to the defence of responsible communication.

[27]

The
    approach to be taken on a s. 137.1 motion, and specifically the meaning and
    operation of ss. 137.1(4)(a) and (b), are set out in
1704604 Ontario Ltd. v.
    Pointes Protection Association
, 2018 ONCA 685 (released concurrently with
    these reasons). I will not repeat that analysis here.

[28]

The
    motion judge correctly identified the elements of the defence of responsible
    communication. That defence, as articulated in
Grant v. Torstar Corp.
,
    2009 SCC 61, [2009] 3 S.C.R. 640, at para. 98, has two components. First, the
    subject matter of the publication must be a matter of public interest. Second,
    the publication must be responsible. In this context, responsible refers to
    both the steps taken to validate the accuracy of factual assertions in the
    publication and the overall fairness of the publication.

[29]

In
    considering the defence, the motion judge set out a lengthy quotation from a leading
    authority and listed ten factors identified in the authorities as relevant to
    the defence. His application of those principles to the facts of this case is
    found at paras. 58 and 60:

As noted earlier the evidence is lacking that Corus attempted
    to verify the truth of Nancy McSloys statements. In all the circumstances a
    statement that attempts were made to contact the Plaintiff carries little or no
    weight. Given the use of the sensational term Bombshell more evidence was
    required from Corus. I am satisfied that there are grounds to believe that
    Corus has no valid defence based on public interest responsible journalism (or Responsible
    Communication as I have termed it above).



[The concept of reportage] does not exist as a standalone
    defence but is a factor to be weighed in considering whether a publication was
    responsible. As a factor in these circumstances it has negligible weight
    considering that the publication was not a report of both sides of a dispute
    between competing candidates and there was no indication in the publication of
    an effort to verify the truth of Nancy McSloys statements.

[30]

The
    motion judge was not required to determine whether Corus had made out the
    defence of responsible communication. Corus had met its evidentiary burden of
    putting the defence in play, both by its Statement of Defence and by Mr.
    Smiths affidavit. The onus then fell to Mr. Armstrong to satisfy the motion
    judge that a trier examining the record could reasonably conclude that Corus
    did not have a valid  meaning successful  defence to the allegation. If a
    trier could not reasonably come to that assessment on the motion record, Mr.
    Armstrong had failed to meet his onus under s. 137.1(4)(a)(ii):
Pointes
,
    at paras. 83-84.

[31]

The
    first component of the responsible communication defence was not an issue. As counsel
    acknowledged, the suitability of a candidate to hold office on the city council
    was a matter of public interest. The availability of the defence depended on
    whether Corus acted responsibly in reporting Ms. McSloys statements.

[32]

Coruss
    reporting of Ms. McSloys comments had two themes. Both concerned the
    suitability of candidates for public office. First, Corus reported on Mr.
    Armstrongs suitability for public office in light of the revelations of his
    prior conviction for sexual assault and Ms. McSloys assertions that Mr.
    Armstrong used bullying and intimidation tactics to get his way. Second, Corus questioned
    Ms. McSloys motive for making Mr. Armstrongs prior conviction public in the
    middle of the campaign. Coruss reporting posed the question: was Ms. McSloy
    acting in the public interest or to advance her personal political career? That
    question went directly to Ms. McSloys suitability as a candidate for public
    office.

[33]

It
    is important to emphasize that the reporting of Mr. Armstrongs prior
    conviction for sexual assault is not the basis for the defamation allegation. The
    defamation claim focuses on Ms. McSloys statements made in the course of
    explaining and defending her decision to reveal Mr. Armstrongs prior
    conviction in the middle of the campaign. The responsible communication defence
    must be assessed in that context.

[34]

Ms.
    McSloys comments characterizing Mr. Armstrong as a bully and posing a threat
    to the safety of others were not put forward by Corus as statements of fact,
    and no reasonable listener or reader would take them as such. Her comments were
    reported as her opinion. She justified making Mr. Armstrongs prior criminal
    record public because, in her view, it supported her characterization of him as
    a bully and a threat to the safety of others. She also offered the explanation
    to justify her position that she was not simply trying to advance her own
    political career by raising Mr. Armstrongs prior conviction. Her explanations
    for disclosing Mr. Armstrongs prior criminal conviction were integral to both
    public interest themes advanced in the Corus publications: see
Grant v.
    Torstar Corp.
, at paras. 119-20.

[35]

The
    motion judge rejected Coruss responsible communication defence in part because
    the evidence is lacking that Corus attempted to verify the truth of Nancy
    McSloys statements. The motion judge did not identify any specific statements
    he had in mind when he made this observation. Nor did he identify any specific
    factual errors in the publications.

[36]

If
    the motion judge was referring to Ms. McSloys characterization of Mr.
    Armstrong as a bully, or his conduct as intimidating, or Ms. McSloys
    concerns about her own safety and the safety of others, none of these assertions
    were factual statements capable of verification. Her comments were her opinions
    and her characterizations of Mr. Armstrongs conduct. No reasonable person
    reading or listening to the Corus publications would take those statements as
    anything other than Ms. McSloys opinion about Mr. Armstrongs conduct and her
    justification for making his prior conviction public.

[37]

If,
    when the motion judge spoke of Coruss failure to verify Ms. McSloys statements,
    he was referring to her statements about prior events that she said justified
    her characterization of Mr. Armstrong as a bully, the motion judges
    observation is contrary to the evidence. There was ample evidence that most, if
    not all, of the events referred to by Ms. McSloy had occurred and had been reported
    in the media. That material was all before the motion judge.

[38]

For
    example, in speaking to Mr. Needles, Ms. McSloy said:

Looking back at the bullying issue that I had with the incumbent
    in regard to my volunteer work within the community this year.

[39]

Ms.
    McSloy was referring to an incident that had occurred earlier in 2014 that had been
    widely reported, including on Mr. Needless radio program. The incident
    involved Mr. Armstrongs attempt to have Ms. McSloy removed from her position
    with a volunteer organization because she had chosen to run for city council. The
    reporting on this incident had included suggestions by persons other than Ms.
    McSloy that Mr. Armstrongs conduct amounted to bullying. Mr. Armstrong had publicly
    responded to that characterization on Mr. Needless program and presented his
    side of the debate.

[40]

There
    was no question that the dispute between Mr. Armstrong and Ms. McSloy over her
    involvement in the volunteer organization had occurred. Her characterization of
    that event as indicative of Mr. Armstrongs bullying was her opinion and not something
    that Corus could verify.

[41]

In
    holding that Coruss failure to verify the truth of Ms. McSloys comments
    undermined the responsible communication defence, the motion judge erred in law
    in failing to distinguish between the accuracy of Ms. McSloys reference to
    earlier events and her characterization of what those events said about Mr.
    Armstrongs character and disposition. Coruss obligation to make best efforts
    to verify the information provided by Ms. McSloy related to the events she referred
    to, not to her opinion of what those events said about Mr. Armstrongs
    character.

[42]

I
    turn next to the overall fairness of the Corus publications. In making this
    assessment, I draw on the factors identified in
Grant v. Torstar Corp.
,
    at paras. 110-122. The publications clearly identify Ms. McSloy as the source
    of the information and opinion contained therein. The publications repeatedly
    emphasize the context  these were comments made by Mr. Armstrongs political opponent
    in the middle of a heated election campaign. Identifying the source of the
    comments and the context in which they were made gives the reader valuable
    information when assessing the comments merits and goes a long way toward
    ensuring the fairness of Coruss reporting.

[43]

The
    publications are even-handed in the sense that Ms. McSloys explanation for
    going public with Mr. Armstrongs conviction, while clearly set out, is not simply
    accepted at face value. Mr. Needles pressed Ms. McSloy on her motive. In the
    end, he left the issue of what motivated Ms. McSloy an open question and invited
    comments and further discussion from the listeners.

[44]

Corus
    also sought out Mr. Armstrong and his lawyer for comment on Ms. McSloys
    assertions. Both declined that invitation. The motion judge dismissed Coruss
    attempt to get Mr. Armstrongs side of the story as worthy of little or no
    weight in assessing the responsible communication defence. I disagree.

[45]

Ms.
    McSloys characterization of Mr. Armstrong as a bully and a threat to the
    safety of others could best have been answered by Mr. Armstrong himself. This
    is particularly true in the context of an ongoing election campaign. The public
    reasonably expects candidates to publicly respond to and refute assertions made
    by other candidates. Corus gave Mr. Armstrong that opportunity. In my view,
    that opportunity was entitled to considerable weight in assessing the
    responsible communication defence.

[46]

There
    is no reason to think that Mr. Armstrong would not have been treated fairly had
    he chosen to respond as invited. Quite the contrary, Mr. Armstrong had appeared
    on Mr. Needless show earlier that year to respond to allegations made by other
    persons that he bullied Ms. McSloy. Mr. Armstrong responded to those allegations
    in conversation with Mr. Needles. There is no suggestion that he was not given
    a full opportunity to respond or was otherwise treated unfairly by Mr. Needles.

[47]

The
    motion judge seems to have discounted Coruss attempt to get Mr. Armstrongs
    side of the story because, in the motion judges assessment, the Corus
    publications did not purport to be a report of both sides of a dispute between
    competing candidates. There was no report of both sides of a dispute because
    Mr. Armstrong declined Coruss invitation to respond to Ms. McSloys
    characterization of his conduct. There is no reason to doubt that, had Mr.
    Armstrong responded and offered a rebuttal to her characterization, that Corus
    would have reported that rebuttal, thereby making both sides of the dispute
    public.

[48]

The
    motion judge fell into legal error in dismissing Coruss attempts to obtain Mr.
    Armstrongs side of the story in response to Ms. McSloys statements. As
    indicated in
Grant v. Torstar Corp.
, at para. 116, a legitimate
    attempt to report both sides of a story speaks to the essential sense of
    fairness the defence is intended to promote, as well as thoroughness.

[49]

The
    motion judge was also critical of Coruss use of the word Bombshell in the
    title of the article on the AM 980 website. I understand the motion judge to
    have inferred from the use of that word that Corus was sensationalizing the
    controversy rather than attempting to present a balanced and fair report.

[50]

The
    word Bombshell clearly refers to the revelation of Mr. Armstrongs prior
    conviction for sexual assault and not Ms. McSloys explanation for going public
    with that prior conviction. The truth of the so-called Bombshell was never
    questioned and is not the subject matter of the defamation claim. In my view, the
    use of the word Bombshell had no impact on the tone of the Corus publications
    as they relate to Ms. McSloys alleged defamatory comments.

[51]

On
    a proper application of the responsible communication defence to the facts of
    this case, I am satisfied that the material filed by Corus put the defence of
    responsible communication squarely in issue. Mr. Armstrongs material does not
    provide reasonable grounds to believe that Corus did not have a valid defence
    of responsible communication.

[52]

The
    Corus publications did not contain any material factual errors. They presented
    Ms. McSloys explanation for disclosing Mr. Armstrongs very dated criminal
    conviction in her own words. The presentation was balanced and fair. Corus
    neither supported nor dismissed Ms. McSloys explanation for the disclosure.
    Mr. Armstrongs voice went unheard because he chose to decline Coruss request
    for a comment. A reasonable trier on this record could not be satisfied that
    Corus did not have a valid defence of responsible communication.

[53]

Mr.
    Armstrong failed to meet his onus under s. 137.1(4)(a)(ii). Coruss motion
    should have been allowed and the claim against it dismissed.

E.

the appeal by the personal appellants

[54]

The
    personal appellants are responsible for their own comments, although comments
    made by others can in some circumstances provide context and meaning. For
    example, the comment made by Mr. Spencer after Ms. McSloys press release
    clearly gains context and meaning from the contents of that press release. Similarly,
    Mr. Wilsons comment on Mr. McSloys post must be read in light of Mr. McSloys
    post.

(i)

Mr. McSloy and Mr. Wilson

[55]

Mr.
    McSloy made a single statement. On August 30, 2014, he posted the following on
    his Facebook page:

It is sad to see people putting election signs on their lawn
    outs [
sic
] of fear and being bullied and yelled at. Sad too if that is
    what it takes to try to get re-elected.

[56]

Mr.
    Wilson also made a single statement. On September 2, 2014, in response to Mr.
    McSloys post, Mr. Wilson posted the following on Mr. McSloys Facebook page:

Some politicians make a career out of bullying people. Turf
    them!

[57]

Mr.
    McSloys post was not available to the general public, but could be read by his
    338 Facebook friends. Mr. Wilson had 211 Facebook friends, and as his post
    appeared on Mr. McSloys page, it was not available to the general public. Both
    statements were made days before Ms. McSloys press release and her subsequent
    interview on Mr. Needless show.

[58]

The
    motion judge recognized that Mr. Armstrong had to show that Mr. McSloys and
    Mr. Wilsons posts referred to Mr. Armstrong. Neither expressly identified Mr.
    Armstrong. In concluding that there was substantial merit to Mr. Armstrongs argument
    that Mr. McSloys and Mr. Wilsons posts referred to him, the motion judge said,
    at para. 12:

Not all the statements refer to the Plaintiff by name. However,
    the inescapable inference is that the references are to the Plaintiff. This
    inference arises from the placement, sequence, or thread of the comments and
    the use of the concept of re-election. Only the Plaintiff was running for
    re-election.
The statements of the various personal Defendants can be
    considered to have a cumulative effect. Arguably, by implication they are
    adopting each others views.
[Emphasis
    added.]

[59]

The
    motion judge treated the alleged defamatory statements as if they had all been made
    by all of the personal defendants. He erred in law in doing so. Liability is
    personal, absent evidence that the tortious conduct is the product of a
    conspiracy or common design. If a common design is established, then all
    parties to the common design become joint tortfeasors: see
Rutman v. Rabinowitz
,
    2018 ONCA 80, 420 D.L.R. (4th) 310, at paras. 33-35, leave to appeal refused
    [2018] S.C.C.A. No. 130. In my view, Mr. McSloys and Mr. Wilsons involvement
    in Ms. McSloys election campaign does not make them legally responsible for
    any defamatory statement that may have been made by anyone in the course of the
    campaign.

[60]

There
    is no allegation in the Statement of Claim that the personal defendants were
    joint tortfeasors, or that there was a common design among them to defame Mr.
    Armstrong.
[1]
Nor is there any evidence in the material filed on the motion to support a
    finding of common design. Nothing either Mr. McSloy or Mr. Wilson did or said
    could support the inference that they adopted by implication the subsequent
    comments of Mr. Spencer and Ms. McSloy.

[61]

An
    assessment of liability for the allegedly defamatory statements on an
    individual basis is particularly important to Mr. McSloy and Mr. Wilson. Each
    made a single comment days before Ms. McSloys press release concerning Mr.
    Armstrongs criminal record and her subsequent comments tying that criminal
    conduct to other conduct by Mr. Armstrong. Ms. McSloys statements cannot be
    used to put a meaning on Mr. McSloys and Mr. Wilsons earlier statements.
    There is nothing in this record to suggest that Mr. McSloy or Mr. Wilson had
    any role in Ms. McSloys subsequent comments, were aware that she intended to
    make those comments when they made theirs, or in any way subsequently
    associated themselves with Ms. McSloys comments.

[62]

Both
    Mr. McSloy and Mr. Wilson argued on appeal that Mr. Armstrong had failed to
    show grounds upon which a reasonable trier could find substantial merit to the
    claim that their posts referred to Mr. Armstrong. To establish defamation, the
    plaintiff must show that the impugned comments referred to the plaintiff:
Grant
    v. Torstar Corp.
, at para. 28.

[63]

Mr.
    McSloys post on August 30, 2014 is the first of the alleged defamatory
    comments. The record contains no other comments or actions of Mr. McSloy that
    could give context or meaning to the August 30 post.

[64]

The
    August 30 post makes no reference to Mr. Armstrong by name and no reference to
    the particular ward or wards in which the described inappropriate electioneering
    activity occurred.

[65]

Counsel
    for Mr. Armstrong, in arguing that the post refers to Mr. Armstrong, stresses
    that it speaks of getting re-elected. Mr. Armstrong was the incumbent in Ward
    2. Counsels point is a valid one. I also accept that because Mr. McSloy was working
    on Ms. McSloys campaign and she was running for election in Ward 2, Mr.
    McSloys reference could reasonably be taken as a reference to activity in Ward
    2. However, I see nothing in the language of Mr. McSloys post that could reasonably
    permit the inference that Mr. McSloy was speaking about Mr. Armstrong
    personally, as opposed to others who may have been involved in his campaign for
    re-election.

[66]

When
    Mr. McSloys liability is considered by reference exclusively to what he said
    and not to what others subsequently said, it cannot reasonably be inferred that
    the August 30 post referred to Mr. Armstrong personally. Consequently, Mr.
    Armstrong failed to show that there were reasonable grounds to believe that
    there was substantial merit to the allegation that Mr. McSloys post defamed
    Mr. Armstrong. The action against Mr. McSloy should have been dismissed on this
    basis.

[67]

Mr.
    Wilsons Facebook post on September 2 in response to Mr. McSloys post must of
    course be read in the context of Mr. McSloys post. However, it cannot be
    interpreted in light of the subsequent statements of others involved in Ms.
    McSloys election campaign.

[68]

Mr.
    Wilsons comment cannot reasonably be read as agreeing or adopting Mr. McSloys
    allegation that people were being bullied and intimidated into putting signs on
    their lawns during the ongoing campaign. Mr. Wilsons Facebook post goes no
    further than to make the observation that some politicians make a career out
    of bullying others. It cannot reasonably be read as an allegation of improper
    conduct against any identifiable person, much less against Mr. Armstrong.

[69]

Just
    as in his assessment of Mr. McSloys liability, the motion judge wrongly
    treated Mr. Wilson as potentially liable for all of the allegedly defamatory
    statements in Mr. Armstrongs pleadings. When Mr. Wilsons liability is
    considered by reference to his single Facebook post in the context of Mr.
    McSloys originating post, Mr. Armstrong failed to show that there were reasonable
    grounds to believe that there was substantial merit to his claim against Mr.
    Wilson. The claim against Mr. Wilson should have been dismissed.

(ii)

Mr. Spencer and Ms. McSloy

[70]

The
    claim against Mr. Spencer is based on two Twitter posts. The first tweet on
    September 4 said:

Getting more and more complaints from #ward2 residents of being
    intimidated and threatened at the door by the current clcr. #ldnont #ldnvotes

[71]

The
    second tweet on September 5 said:

Its a serious charge. It was long ago, but the pattern didnt
    end in 87. Hes still dominating and intimidating. Now its for work not sex.

[72]

Mr.
    Spencers September 5 post came after Ms. McSloys press release concerning Mr.
    Armstrongs prior sexual assault conviction and her claims that Mr. Armstrong
    had shown a pattern of bullying and intimidation. Mr. Spencers reference to a
    serious charge could readily be understood as a reference to the prior sexual
    assault conviction. His comments could also be seen as supporting Ms. McSloys
    allegations that Mr. Armstrong had demonstrated a pattern of bullying and
    intimidation, which posed a risk to the safety of others.

[73]

I
    see no error in the holding that Mr. Armstrong had demonstrated grounds to
    believe that there was substantial merit to his defamation claim against Mr.
    Spencer. Mr. Spencers words clearly referred to Mr. Armstrong and they were
    published to others. The words are also capable of a defamatory meaning. A reasonable
    reader could take from Mr. Spencers statements that Mr. Armstrong was a person
    who used force, threats, and intimidation to get what he wanted from others, be
    it sex or something related to his work as a councillor.

[74]

Ms.
    McSloy made various statements concerning Mr. Armstrong. Her statements lie at
    the heart of this lawsuit. I have described her comments earlier in these
    reasons and need not repeat them here.

[75]

The
    motion judge properly concluded that Mr. Armstrong had demonstrated grounds to
    believe that the claim against Ms. McSloy had substantial merit. Her statements
    referred to Mr. Armstrong and were widely published. They were also reasonably
    capable of bearing at least some of the defamatory meanings that the motion
    judge identified. A reader could take from Ms. McSloys comments that Mr.
    Armstrong used threats, intimidation, illegal acts, and bullying to get what he
    wanted from others.

[76]

I
    am also satisfied that, insofar as Ms. McSloy and Mr. Spencer are concerned,
    Mr. Armstrong met his onus under s. 137.1(4)(a)(ii) to show reasonable grounds
    to believe that Ms. McSloy and Mr. Spencer had no valid defence to the claims.
    In this context, the motion judges criticism of the hearsay nature of the
    material filed by the personal appellants in support of their defences is
    justified.
[2]
While Mr. Armstrong bore the ultimate onus under s. 137.1(4), the appellants
    had a clear evidentiary obligation, especially as it related to defences like
    justification, which concerns the truth of the statements: see
Pointes
,
    at para. 83.

[77]

The
    claims against Ms. McSloy and Mr. Spencer survive the merits analysis in s.
    137.1(4)(a). Do they also survive the public interest analysis in s.
    137.1(4)(b)?

[78]

As
    with the merits analysis, the public interest considerations must focus on the
    claims as advanced against each defendant separately. In assessing the harm
    done or potentially done to Mr. Armstrong, one must distinguish between comments
    made through various media outlets to a wide public audience and comments made to
    a handful of Twitter followers. The motion judge did not draw that distinction,
    but instead looked at potential harm to Mr. Armstrong globally. He erred in law
    in doing so.

[79]

On
    the evidence adduced at the motion, Mr. Armstrong demonstrated little, if any, personal
    or financial harm, real or potential, as a consequence of any of the alleged
    defamatory statements. He was re-elected, defeating Ms. McSloy and another candidate
    with some separation between himself and the second place candidate. The
    motion judge, while describing several variations of the derogatory meanings that
    he said could be taken from the statements, did not identify any specific harm
    suffered or likely to be suffered by Mr. Armstrong.

[80]

Insofar
    as Mr. Spencers tweets are concerned, I see no basis to infer that those
    tweets caused or could reasonably be expected to cause more than minimal harm
    to Mr. Armstrong. Although the motion judge went on at some length about the
    potential for widespread and continuous dissemination of information on the
    internet, he made no reference to the actual evidence concerning Mr. Spencers
    tweets. On that evidence, less than 200 people in total viewed them.

[81]

Not
    only was Mr. Spencers audience modest to say the least, it is hard to imagine
    how his comments added anything to the comments being made at the same time by
    the candidate, Ms. McSloy. Unlike Mr. Spencers comments, those observations
    had a wide audience and were much more detailed.

[82]

Had
    Mr. Spencers tweets been the only statements in issue in this lawsuit, there
    would be no basis to find that Mr. Armstrong suffered or was likely to suffer
    any special damages. While general damages are presumed in defamation, they
    would surely be nominal against Mr. Spencer:
see
Hill v. Church of Scientology of Toronto
, [1995] 2 S.C.R.
    1130, at para. 164; Raymond E. Brown,
Brown on Defamation: Canada, United
    Kingdom, Australia, New Zealand, United States
, loose-leaf, 2d ed., vol. 8
    (Toronto: Carswell, 1999), at pp. 25-46 to 25-48.

[83]

On
    any realistic assessment of this lawsuit, the thrust of Mr. Armstrongs claims
    was directed at Ms. McSloys statements. The comments of Mr. Spencer, like those
    of Mr. McSloy and Mr. Wilson, were peripheral and their possible impact on Mr.
    Armstrong minimal. Indeed, including Mr. McSloy, Mr. Wilson, and Mr. Spencer in
    the lawsuit raises serious questions about Mr. Armstrongs motive in bringing
    the lawsuit. Did he actually seek to vindicate his reputation, or did he seek
    to punish and intimidate his political foe and those associated with her?

[84]

In
    the course of an election campaign, there is a high premium placed on the
    ability of candidates and members of the public to openly and freely express
    points of view about the opposing candidate, often in strong terms and sometimes
    with language that becomes personal. Mr. Spencers tweets did that. As I read
    this record, Mr. Armstrong demonstrated virtually no harm, actual or potential,
    flowing to him from Mr. Spencers tweets. Absent any harm or risk of harm, the
    public interest in allowing Mr. Armstrong to pursue his defamation claim against
    Mr. Spencer cannot outweigh Mr. Spencers right to express his opinion on Mr.
    Armstrongs suitability as a candidate for municipal council, a matter of
    significant public interest. The claim against Mr. Spencer should have been
    dismissed under s. 137.1(4)(b).

[85]

Although,
    as indicated above, I would dismiss the claims against Mr. McSloy and Mr.
    Wilson under the merits analysis in s. 137.1(4)(a), had I reached the public
    interest analysis in respect of their claims, I would have dismissed those
    claims for the same reasons that I would dismiss the claim against Mr. Spencer.

[86]

The
    application of the public interest analysis in s. 137.1(4)(b) to Ms. McSloy
    raises a more difficult problem. She initiated the alleged attack on Mr.
    Armstrongs character. She repeated her allegations in various media outlets. Some
    of her statements could reasonably be read as casting serious aspersions on Mr.
    Armstrongs character. As Mr. Armstrongs opponent, and a person with a history
    and supporters in the local political community, Ms. McSloys opinions may well
    have been given significant weight. Her comments had the potential to do harm
    to Mr. Armstrongs reputation.

[87]

In
    his affidavit, Mr. Armstrong focused on Ms. McSloys comments. He referred to
    several specific incidents, which he alleged demonstrated the damage that Ms.
    McSloys comments caused to him.

[88]

The
    motion judge did not refer to any of Mr. Armstrongs evidence, or make any
    findings based on that evidence. On my reading of Mr. Armstrongs
    cross-examination, many, if not all, of the events he referred to as
    demonstrating the damages that Ms. McSloys comments caused him could not be
    causally related to anything said by Ms. McSloy about Mr. Armstrongs
    character. It is clear that some of the events Mr. Armstrong described flowed
    directly from the disclosure of Mr. Armstrongs prior conviction for sexual
    assault. That disclosure forms no part of the defamation claim, and damages
    flowing from it can form no part of the harm suffered as a result of the
    defamation.

[89]

There
    is almost no evidence of any special damage that Mr. Armstrong suffered as a
    result of Ms. McSloys comments. Mr. Armstrongs continued electoral success
    strongly suggests that any harm to his reputation was minimal. Any award for
    general damages would be modest to reflect the minimal impact on his reputation.

[90]

Against
    what I would characterize as modest evidence of harm or potential harm to Mr.
    Armstrong stands the very strong public interest in promoting freedom of
    expression by candidates during the electoral process. The public expects and
    benefits from vigorous debate among candidates. The rhetoric can become
    personal and overly zealous. No doubt, candidates have in the past, and will in
    the future, step over the line between strongly stated opinions and defamatory
    comments. However, the message to be taken from the enactment of s. 137.1 is
    that not every foot over the defamatory foul line warrants dragging the offender
    through the litigation process. By enacting s. 137.1, the Legislature
    acknowledged that, in some circumstances, permitting the wronged party to seek
    vindication through litigation comes at too high a cost to freedom of
    expression.

[91]

On
    this record, Mr. Armstrong did not suffer and is not likely to suffer any
    financial harm as a result of Ms. McSloys comments about his character. His
    success at the polls belies the suggestion that his reputation has been damaged.

[92]

In
    my view, Mr. Armstrong has not shown that the public interest in allowing him
    to continue with his claim against Ms. McSloy outweighs the public interest in
    protecting Ms. McSloys right to express her opinions about another candidate in
    the course of an election campaign. I would dismiss the claim against Ms.
    McSloy.

F.

conclusion

[93]

I
    would allow the appeals and set aside the order of the motion judge. I would
    dismiss the claims against all of the appellants.

[94]

Unless
    the parties can agree on costs, they should exchange and file their submissions
    within 30 days of the release of these reasons. The submissions should not
    exceed ten pages. The submissions should address:

·

the scale and quantum of costs on the appeal;

·

the scale of costs in the Superior Court;

·

whether this court or the Superior Court should fix the quantum
    of costs in the Superior Court;

·

the quantum of costs in the Superior Court.

Released: DD AUG 30 2018

Doherty J.A.

I agree D.M. Brown
    J.A.

I agree Grant Huscroft
    J.A.





[1]

There is a single reference, in para. 105 of the Amended
    Statement of Claim, to organized dissemination of defamatory statements. The
    reference is made, however, in the context of a claim for punitive damages.



[2]

In contrast, Mr. Smiths affidavit, relied upon in support of
    Coruss potential defences, did not contain hearsay evidence.


