



COURT OF APPEAL FOR ONTARIO

CITATION: Canadian Union of Postal Workers v. Bnai Brith
    Canada, 2021 ONCA 529

DATE: 20210723

DOCKET: C68030

Tulloch, Nordheimer and Jamal JJ.A.

BETWEEN

Canadian Union of Postal Workers

Plaintiff/Responding Party (Respondent)

and

Bnai
    Brith Canada, Michael Mostyn, Aidan Fishman

and Ran Ukashi

Defendants/Moving Parties (Appellants)

David Elmaleh and Aaron Rosenberg, for the appellants

David Migicovsky and Karin M. Pagé, for the respondent

Heard: April 7, 2021 by video conference

On appeal from the order of Justice Calum U.C. MacLeod of
    the Superior Court of Justice, dated January 16, 2020, with reasons reported at
    2020 ONSC 323.

Jamal J.A.:

Introduction

[1]

The appellants, Bnai Brith Canada, Michael Mostyn, Aidan
    Fishman, and Ran Ukashi, appeal from the order of the motion judge dismissing their
    motion to dismiss an action in defamation brought against them by the
    respondent, Canadian Union of Postal Workers (CUPW), under s. 137.1 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43. Section 137.1 seeks to mitigate the
    harmful effects of strategic lawsuits against public participation (SLAPPs) 
    lawsuits that seek to limit freedom of expression on matters of public interest
    rather than to pursue
bona fide
claims:
1704604 Ontario Ltd. v.
    Pointes Protection Association
, 2020 SCC 22, 449 D.L.R. (4th) 1, at para.
    2. Section 137.1 is thus known as an anti-SLAPP provision.

[2]

For the reasons that follow, I would dismiss the appeal.

Background

[3]

CUPW is a public sector union. From time to time, it takes positions on
    political and human rights issues. For many years it has supported a boycott of
    Israeli products, known as the Boycott, Divestment and Sanctions (BDS)
    movement, based on its view that Palestinians are mistreated in the occupied
    territories. CUPW also participates in capacity-building projects and
    cooperates with postal worker unions in other countries, including the
    Palestinian Postal Service Workers Union (PPSWU).

[4]

Bnai Brith is a charitable organization that has served as a primary
    grassroots voice for the Canadian Jewish community since 1875. It regularly
    participates in public debate on topics that impact the Canadian Jewish
    community and the broader public. Michael Mostyn is the CEO of Bnai Brith and Aidan
    Fishman and Ran Ukashi were employees of Bnai Brith and authors of press
    releases about CUPW that CUPW alleged were defamatory.

[5]

The relevant events are as follows.

[6]

A union member of CUPW complained to Bnai Brith about CUPWs support
    for the BDS movement, which Bnai Brith views as a propaganda campaign to
    delegitimize the state of Israel. Bnai Brith then conducted research on CUPWs
    activities and discovered that it had worked on a joint project with PPSWU. Bnai
    Brith found a Facebook page maintained by a person in a leadership role with
    PPSWU containing postings in Arabic praising individuals involved in terrorist
    activity against Israel. Bnai Brith also found postings on the PPSWU page
    appearing to be pro-Palestinian, which Bnai Brith interpreted as implicitly
    calling for the destruction of the state of Israel.

[7]

On July 26, 2018, Bnai Brith e-mailed CUPW and asked for comment on the
    PPSWU Facebook posts and advised CUPW that it intended to publish a story about
    CUPWs association with PPSWU. Bnai Brith asked for a response by the next day.
    CUPW did not respond. On July 31, 2018, Bnai Brith published the first of two press
    releases authored by Mr. Fishman and Mr. Ukashi that became the basis of CUPWs
    defamation action. The first press release, entitled Canadian Postal Workers
    Align with Pro-Terrorism Palestinian Union, stated that PPSWU glorified
    terrorism on its Facebook page and alleged that CUPW leadership has aligned
    itself with the path of violence and extremism. The second press release, published
    on August 2, 2018, stated that CUPWs radical leadership has refused to
    respond to our questions on why it would partner with a terror-supporting
    organization and alleged that CUPWs union dues may be used to support a
    foreign organization that wants to see [CUPWs Jewish and Israeli members]
    murdered.

[8]

CUPW sued the appellants for defamation, alleging that the publications claimed
    that it supports terrorism and that it is anti-Semitic. CUPW also alleged that the
    appellants acted maliciously. The appellants responded by filing a statement of
    defence and, subsequently, bringing a motion under s. 137.1 to have the action
    dismissed.

The motion judges decision

[9]

The motion judge dismissed the appellants motion. He first summarized the
    statutory framework for an anti-SLAPP motion under s. 137.1 and the test for
    defamation at common law. He then found:

·

Using union funds to support political causes that might support
    attacks on Israel is a matter of public interest. Legitimate criticism of these
    practices is protected speech under anti-SLAPP legislation.

·

CUPW has a solid case for
    defamation since the published words referred to CUPW by name. The appellants
    claim that CUPW is motivated by racism and is using union dues improperly to
    support terrorism would easily meet the test of language tending to diminish
    the reputation of [CUPW] in the minds of reasonable people.

·

There are serious flaws in the
    appellants defences:

-

Defence
    of truth or justification:
Interacting with the PPSWU cannot be
    reasonably said to be radical when official bodies like the Government of
    Canada, the European Union, and the United Nations have all sponsored projects
    in Gaza and the West Bank aimed at economic, justice system, or government institution-building
    and capacity-building. It would be difficult to prove that CUPW supports terrorism,
    violence, or anti-Semitism or that PPSWU officially supports terrorism.
    Evidence showed that the Facebook posts were not by the PPSWU but by an individual.
    There is thus a reasonable and distinct possibility that [the] truth and
    justification [defences] will not succeed.

-

Defence
    of fair comment:
There is evidence that Bnai Brith acted on
    assumptions without exercising due diligence by conducting only a cursory
    internet search of Facebook pages. Bnai Brith appeared to have entirely
    ignored CUPWs own policies and declarations against violence and racism and in
    support of a peaceful two state solution in the middle east, which may be
    fatal to any fair comment defence. Bnai Briths choice to attack CUPWs
    involvement with the PPSWU and to blow [the issue] out of proportion is potential
    evidence of malice.

·

The task on a s. 137.1 motion is
    to screen out litigation that is targeted by the legislation, which includes litigation
    of questionable merit or utility brought to stifle public debate on matters of
    public interest. This is a legitimate defamation action brought in
    circumstances where [CUPW] should have the right to pursue a remedy. The
    appellants defences raise significant issues about truth, good faith,
    responsibility and malice.

Legal Framework

[10]

Subsections
    137.1(3) and (4) of the
Courts of Justice Act
provide the following test
    on an anti-SLAPP motion:

(3) On motion by a person against whom a proceeding is brought,
    a judge shall, subject to subsection (4), dismiss the proceeding against the
    person if the person satisfies the judge that the proceeding arises from an
    expression made by the person that relates to a matter of public interest.

(4) A judge shall not dismiss a proceeding under subsection (3)
    if the responding party satisfies the judge that,

(a)
there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the
    proceeding; and

(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.

[11]

The
    Supreme Court of Canadas decision in
Pointes Protection
, released
    after the motion judges decision, analyzed the interpretation and application
    of these provisions. At para. 18, Côté J. explained how these provisions
    operate:

1.

Section 137.1 places a threshold burden on the moving party (the defendant)
    to satisfy the motion judge that the proceeding arises from an expression
    relating to a matter of public interest.

2.

If the moving party meets this threshold burden, the burden shifts to
    the responding party (the plaintiff)
to satisfy the
    motion judge
that
there are grounds to believe
    that the proceeding has substantial merit and the moving party has no valid
    defence
, and that the public interest in permitting the proceeding to
    continue outweighs the public interest in protecting the expression. If the
    responding party does not meet this burden, the s. 137.1 motion is granted and
    the proceeding is dismissed.

Issues

[12]

There
    is no dispute that the appellants met their threshold burden to satisfy the
    motion judge that the proceeding arises from expression relating to a matter of
    public interest  the use of union funds to take positions on the conflict in
    the Middle East or to help an organization that allegedly supports attacks on
    Israel.

[13]

The appellants
    assert that the motion judge erred in concluding that CUPW met its burden to
    resist the dismissal of the action. They say that the motion judge erred:

1.

in law and
    fact in several aspects of the s. 137.1(4)(a)(ii) analysis relating to the
    appellants defences to the alleged defamation; and

2.

by failing to undertake
    the balancing required under s. 137.1(4)(b).

[14]

I
    will address each issue in turn.

Issue #1: Did the motion judge err in the s. 137.1(4)(a)(ii) analysis?

[15]

The
    appellants assert that the motion judge erred in law and in fact in concluding that
    there are grounds to believe that the appellants have no valid defence in
    the proceeding under s. 137.1(4)(a)(ii).

[16]

First,
    the appellants claim that the motion judge applied the wrong legal test under
s. 137.1(4)(a)(ii)
when he noted, at the start of his
    reasons, that [t]he defences which have been raised by B[n]ai Brith are not
    certain to be successful. The appellants acknowledge in their factum that the
    motion judge articulated the test differently later in [his] reasons, but
    claim that the incorrect statement of law at the outset coloured the motion
    judges analysis.

[17]

I do
    not accept that the motion judge erred in stating the legal test under s. 137.1(4)(a)(ii).
    I do not read the motion judges statement that the appellants defences are
    not certain to be successful as articulating the legal test under s. 137.1(4)(a)(ii).
    Read in context, that statement merely reflected his finding that there were
    grounds to believe that the defences would fail or, in other words, that there
    was no valid defence. As I explain below, the motion judge articulated and
    applied the correct test, consistent with the Supreme Courts articulation of
    it in
Pointes Protection
. The motion judge stated that CUPW had to
    satisfy him that there are grounds to believe that the appellants have no valid
    defence, which he explained means that a reasonable trier of fact
could
conclude that none of the pleaded defences would succeed at trial (emphasis in
    original). The motion judge emphasized that [i]t is premature to determine
    such a question conclusively at this preliminary stage of the litigation, and highlighted
    that [t]here need only be a basis for believing these conditions may be
    satisfied. The section does not require the motion judge to conclusively
    determine that the claim
will
succeed nor that the defences
will
fail (emphasis in original).

[18]

The
    motion judges articulation of the test under s. 137.1(4)(a)(ii) reflects the
    Supreme Courts articulation in
Pointes Protection
. Côté J. stated that
    s. 137.1(4)(a) asks whether the motion judge concludes from his or her
    assessment of the record that there is a basis in fact and in law  to support
    a finding that the plaintiffs claim has substantial merit and that the
    defendant has no valid defence to the claim: at para. 42. She explained that
    the no valid defence prong requires the plaintiff  CUPW  to show that
    there are grounds to believe that the defences have no real prospect of
    success: at para. 60.

[19]

I
    therefore see no basis to conclude that the motion judge erred in stating the legal
    test under s. 137.1(4)(a)(ii).

[20]

Second,
    the appellants assert that in applying s. 137.1(4)(a)(ii) the motion judge made
    several findings unavailable to him on the record, and that he erred in evaluating
    the defences of justification, fair comment, and responsible communication and
    in finding that the appellants may have acted with malice.

[21]

Before
    addressing the appellants specific objections, I underscore that a motion
    judges determination under s. 137.1(4)(a) attracts appellate deference, absent
    a reviewable error:
Pointes Protection
, at paras. 41, 97;
Bent v.
    Platnick
, 2020 SCC 23, 449 D.L.R. (4th) 45, at para. 77. As I will
    explain, I see no reviewable error justifying appellate intervention. It was
    open to the motion judge to find what he called serious flaws in the
    appellants defences and thus provide grounds to believe that none would succeed.

[22]

I
    will begin with the appellants argument on the defence of justification.

[23]

Once
    a plaintiff makes a
prima facie
showing of defamation, the words
    complained of are presumed to be false. To succeed on the defence of
    justification, the defendant must lead evidence showing that the statement was
    substantially true. Even if the publication is shown to contain accurate facts,
    the defence will fail when the sting of the defamation is shown to be untrue:
Platnick
, at para. 107.

[24]

Regarding
    justification, the appellants say that the motion judge erred by ignoring
    probative evidence on a key issue and by finding that it will be difficult to show
    that PPSWU officially supports terrorism. These arguments essentially ask this
    court to reweigh the evidence before the motion judge. That is not this courts
    role. There was a basis in the record for the motion judge to conclude that it
    may be difficult for the appellants to prove justification because their statements
    rested on problematic source material. As the motion judge found, the Facebook
    posts that the appellants relied on for their allegation that PPSWU supported
    terrorism were made not by PPSWU but by an individual. The motion judge was
    thus entitled to find that there were grounds to believe that the defence of
    justification would fail.

[25]

The
    appellants also say that the motion judge relied on evidence not in the record
    when he noted that the Government of Canada, the European Union, and even the
    state of Israel have sponsored projects in Gaza and the West Bank aimed at institution
    and capacity building. The motion judge made this observation partly to support
    his point that CUPW merely being involved in a project with PPSWU does not mean
    that CUPW is radical or aligned with any and all activities of [PPSWU]. That
    point is self-evident and unassailable even without referring to the impugned
    evidence. I see no reviewable error here.

[26]

The appellants
    also contend that the motion judge erred by holding, without significant
    analysis, that there was evidence that may be fatal to the defences of fair
    comment and responsible communication.

[27]

The following
    principles are relevant in considering the defences of fair comment and
    responsible communication:

·

To rely on the defence of fair comment, the comment must be based
    on
true
facts. If the factual foundation is
    unstated or unknown, or turns out to be false, the defence is unavailable:
WIC
    Radio Ltd. v. Simpson
, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 31.

·

The responsible communication defence has two essential elements:
    (1) the publication must be on a matter of public interest; and (2) the
    defendant must show that the publication was responsible, in that the defendant
    was diligent in trying to verify the allegations, having regard to all the
    circumstances:
Grant v. Torstar Corp.
, 2009 SCC 61, [2009] 3 S.C.R.
    640, at para. 98;
Armstrong v. Corus Entertainment Inc.
, 2018 ONCA
    689, 143 O.R. (3d) 54, at para. 28.

[28]

I do
    not accept that the motion judge erred regarding these defences.

[29]

In
    concluding that there were grounds to believe that the defences of fair comment
    and responsible communication would fail, the motion judge stated that [w]ithout
    going into the evidence in depth, he would just hit some of the highlights.
    He found:

1.

CUPW
    merely being involved in a project with PPSWU cannot reasonably be said to mean
    that CUPW supports all of PPSWUs activities;

2.

it would
    be difficult to prove that PPSWU officially supports terrorism, especially because
    there was evidence that the impugned Facebook posts were not made by it; and

3.

there was evidence
    that the appellants had acted on assumptions without exercising due diligence,
    based on only a cursory internet search and review of Facebook pages, and apparently
    ignored CUPWs own policies and declarations against violence and racism.

[30]

Each
    of the above findings is grounded in the record before the motion judge. I see no
    basis for this court to intervene.

[31]

Finally,
    the appellants assert that the motion judge erred in stating that malice may
    undermine the appellants defences. Malice may be established by reckless
    disregard for, or indifference to, the truth, spite or ill-will, or any
    indirect or ulterior motive:
Hill v. Church of Scientology of Toronto
,
    [1995] 2 S.C.R. 1130, at para. 145;
Platnick,
at para. 136. The
    appellants state in their factum that [t]o infer that an advocacy organization
    may have acted with malice by following a lead and uncovering a public interest
    story is not evidence of malice.

[32]

I do
    not accept that the motion judge erred. To be clear, the motion judge stated
    that he was not  making a finding of malice. He merely concluded that there
    was evidence before him that may support such a finding, based on the
    presence of an ulterior motive or recklessness about the truth of the
    underlying facts, or based on an inference from the appellants conduct. He underscored
    that [t]his is not a summary judgment motion and it is not appropriate to take
    a deep dive into the evidence. I see no error in the motion judges approach
    or conclusion.

[33]

I thus
    conclude that the motion judge had a basis in the record to find grounds to
    believe that the appellants defences would fail. He was entitled to find that there
    was evidence that the appellants acted on assumptions without exercising due
    diligence, and that this may be fatal to their defences of responsible
    communication and fair comment. He was also entitled to find that there was evidence
    of malice that would undermine the appellants defences.

[34]

In reaching
    this conclusion, I emphasize that the motion judge did not adjudicate these defences
    on the merits or find malice. All that he decided was that CUPWs defamation
    action may proceed. I see no reviewable error in that conclusion.

Issue #2: Did
    the motion judge err in failing to undertake the balancing required under s.
    137.1(4)(b)?

[35]

The second
    issue raised by the appellants asserts that the motion judge erred in law by
    failing to undertake the balancing required under s. 137.1(4)(b) to determine
    whether the harm likely to have been suffered by CUPW because of the
    appellants expression is sufficiently serious and the corresponding public
    interest in permitting the action to continue outweighs the public interest in
    protecting the appellants expression. The appellants claim that the motion
    judge set out but failed to apply this balancing test, which the Supreme Court
    in
Pointes Protection
described as the crux or core of the s. 137.1
    analysis: at para. 82. The appellants therefore say that the appeal should be
    allowed and the motion remitted to a different judge to conduct the balancing.

[36]

In
    the alternative, the appellants assert that even if this court performs this
    balancing
de novo
on appeal, the appeal should be allowed and CUPWs
    action dismissed because the harm alleged by CUPW is not serious enough to
    allow the defamation action to continue. The appellants say that CUPW has
    suffered only insignificant harm, if any, from the appellants expression and
    has filed no evidence of any specific, provable, quantifiable harm. The appellants
    add that the record shows that their expression has been chilled, because they
    have not published on the subject since being served with the statement of
    claim. They claim that the expression implicated is close to the core values
    underlying freedom of expression and there is therefore a greater public
    interest in protecting it. Finally, the appellants allege that CUPWs lawsuit presents
    several
indicia
of a SLAPP. They say that it seeks to silence the
    appellants from criticizing CUPW in good faith on its partnerships with
    entities in the Middle East.

[37]

Respectfully,
    I do not accept the appellants submissions.

[38]

I
    begin by observing that it is not disputed that the motion judge correctly set
    out the balancing test under s. 137.1(4)(b). He cited this courts decision in
1704604
    Ontario Ltd. v. Pointes Protection Association
, 2018 ONCA 685, 142 O.R.
    (3d) 161, at para. 45, affd 2020 SCC 22, 449 D.L.R. (4th) 1, which held that a
    plaintiff such as CUPW alleging to have been wronged by a defendants expression
    on a matter of public interest must demonstrate that the public interest in
    vindicating that claim outweighs the public interest in protecting the defendants
    freedom of expression. The motion judge explained that the balancing under s. 137.1(4)(b)
    asks the court to consider if the harm potentially suffered by the plaintiff
    is trivial or not and if it is serious to consider whether it is in the public
    interest to deny the plaintiff a remedy in the name of freedom of speech.

[39]

I am
    satisfied that the motion judge applied this test. There is no doubt that the
    motion judge considered the harm alleged to have been suffered by CUPW to be significant.
    He cited this courts decision in
Lascaris v. Bnai Brith Canada
, 2019
    ONCA 163, 144 O.R. (3d) 211, leave to appeal refused, [2019] S.C.C.A. No. 147, which
    allowed a defamation action against Bnai Brith to proceed when Bnai Brith
    published an article alleging that the official Justice Critic of the Green
    Party of Canada had used social media to advocate on behalf of terrorists who
    had murdered Israeli civilians. This court held, in
Lascaris
,

that
    the balance under s. 137.1(4)(b) clearly favoured the plaintiff, because
    if the action proceeded and the plaintiff were to succeed, the damages to
    which the [plaintiff] would be entitled could be significant.
Accusing any
    person of supporting terrorists is about as serious and damaging an allegation
    as can be made in these times
: at para. 40 (emphasis added). That observation
    applies equally here and no doubt led the motion judge to conclude that this
    was a solid case for defamation and to highlight that [w]ords suggesting
    that a union is using its membership dues improperly, supports terrorism and is
    motivated by racism would easily meet the test of language tending to diminish
    the reputation of the union in the minds of reasonable people. I am therefore
    satisfied that the motion judge found that the harm potentially suffered by
    CUPW because of the appellants alleged defamation was serious.

[40]

I am
    also satisfied that the motion judge weighed the serious potential harm to CUPW
    against whether, in the name of freedom of speech, it was in the public
    interest to deny CUPW the ability to pursue a remedy. This weighing is
    reflected in the motion judges statements that his task on the motion was to
    screen out litigation that is targeted by the legislation, namely,
    litigation of questionable merit or utility brought to stifle public debate on
    matters of public interest. Because of the potentially injurious statements against
    CUPW, the evidence that Bnai Brith acted on assumptions without exercising due
    diligence and that it ignored CUPWs policies against violence and racism, the
    potential for finding that Bnai Brith acted with malice, and the potential
    weakness of the appellants defences, the motion judge was entitled to find that
    this is a legitimate defamation action brought in circumstances where the
    union should have the right to pursue a remedy.

[41]

Nor
    do I see any basis to conclude that the appellants speech has
indicia
of a SLAPP sufficient to materially affect the outcome of the weighing
    exercise. CUPW was
prima facie
entitled to sue the individual
    employees given that the evidence shows that each had direct involvement in the
    authorship and publication of the allegedly defamatory statements: see
Hill
,
    at para. 176. The action also did not have a chilling effect on the appellants
    speech because Bnai Brith did not remove the impugned press releases from its
    website after it was sued and there is evidence that Mr. Mostyn wrote an article
    about CUPW after the appellants were served with the Notice of Libel.

[42]

In
    conclusion, as the motion judge held, CUPWs action does not appear to [be] 
    the type of action the legislature contemplated should be stopped in its tracks
    at this preliminary stage. The motion judge correctly stated the test and appropriately
    weighed the relevant considerations. His conclusion therefore attracts
    appellate deference.

Disposition

[43]

I
    would dismiss the appeal, with costs to CUPW in the agreed amount of $15,000 all
    inclusive.

Released: July 23, 2021 M.T.

M. Jamal J.A.

I agree. M. Tulloch
    J.A.

I agree. I.V.B. Nordheimer J.A.


