



COURT OF APPEAL FOR ONTARIO

CITATION: New Dermamed Inc. v. Sulaiman, 2019 ONCA 141

DATE: 20190225

DOCKET: C65406

Doherty, Pardu and Nordheimer JJ.A.

BETWEEN

New Dermamed Inc.

Plaintiff (Appellant)

and

Danna Sulaiman
and Google Inc.

Defendants (
Respondent
)

Ruzbeh Hosseini and Joan Kasozi, for the appellant

J. Sebastian Winny, for the respondent

Heard: February 15, 2019

On appeal from the order of
    Justice Peter Cavanagh of the Superior Court of Justice, dated April 19, 2018,
    with reasons reported at 2018 ONSC 2517, and from the costs order dated June 4,
    2018, with reasons reported at 2018 ONSC 3454.

REASONS FOR DECISION

[1]

New Dermamed Inc. appeals from the order of the motion judge that
    dismissed its claim pursuant to s. 137.1 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43 and ordered costs payable in the amount of $20,000.00,
    inclusive of HST and disbursements.

[2]

The respondent sought and obtained laser resurfacing treatment on her cheeks
    from the appellant. The respondent purchased three laser skin resurfacing
    treatments. After receiving the first treatment, the respondent alleged that
    she had suffered volume loss to her face. She discontinued the laser
    resurfacing treatment and replaced her two remaining treatments with a
    micro-needling treatment. Despite being informed that volume loss is not a side
    effect of the laser resurfacing treatment she received, the respondent
    continued to insist that she had suffered volume loss as a result of the
    treatment.

[3]

The respondent wrote and published four different reviews regarding the
    appellant on a webpage associated with, and maintained by, Google Inc.
[1]
In her review, the respondent complained that she had experienced volume loss
    and that her face looked "saggier" and had "melted off. The
    second, third, and fourth reviews were revised versions of the first review.
    Both the second and third revisions were preceded by letters from the
    appellants lawyers complaining that the reviews were false and libelous. The
    letters insisted that the respondent permanently delete her comments, otherwise
    she would be sued. While the respondent revised her review, she did not delete
    it.

[4]

The respondent was served with the statement of claim in this action in
    late November 2017. The action was brought under the simplified procedure 
    Rule 76,
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. The
    appellant claimed damages of $500,000.

[5]

The motion judge concluded that the comments made by the respondent in
    her reviews were expressions on a matter of public interest. The motion judge then
    turned to determine if the exception under s. 137.1(4), to the presumption that
    the action should be dismissed under s. 137.1(3), applied. The motion judge concluded
    that it did not because the appellant had failed to establish that the respondents
    defence of fair comment was invalid under s. 137.1(4)(a)(ii).

[6]

The motion judge heard and decided the s. 137.1 motion before this court
    released a series of judgments interpreting s. 137.1: see
1704604 Ontario
    Ltd. v. Pointes Protection Association
, 2018 ONCA 685, 142 O.R. (3d) 161 and
    the related cases released simultaneously. As we shall explain, the motion
    judge applied the wrong test in determining whether the appellant had shown
    that the respondent had no valid defence to the claim within the meaning of s.
    137.1(4)(a)(ii).

[7]

The appellant does not now quarrel with the motion judges conclusion
    that the comments made by the respondent in her reviews were expressions on a
    matter of public interest. In any event, the motion judges conclusion that it
    was a matter of public interest finds support in the case law. As McLachlin
    C.J.C. said in
Grant v. Torstar Corp.
,
2009 SCC 61, [2009] 3
    S.C.R. 640, at paras.105-106:

The case law on fair comment "is replete with successful
    fair comment defences on matters ranging from politics to restaurant and book
    reviews".



The public has a genuine stake in
    knowing about many matters, ranging from science and the arts to the
    environment, religion and morality. The democratic interest in such
    wide-ranging public debate must be reflected in the jurisprudence. [citations
    omitted.]

[8]

Consequently, the action would be presumptively dismissed under s.
    137.1(3) unless the appellant could satisfy the court that the exception under
    s. 137.1(4) applied.

[9]

Section 137.1(4) reads:

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.

[10]

The
    motion judge concluded that the proceeding had substantial merit but that the
    appellant had failed to establish that the defence of fair comment was invalid.
    On that point, he found that the reviews were comments or opinions; that there
    was a sufficient factual basis for the comments; that the appellant had failed
    to show that no person in the respondents circumstances could have honestly
    held the opinions that she expressed; and that the respondent had not made the
    comments out of malice.

[11]

In
    reaching his conclusion, the motion judge interpreted the onus on the appellant
    under s. 137.1(4)(a)(ii) as requiring the appellant to show that the defence of
    fair comment could not succeed: at paras. 38-40. That is not the onus that was
    on the appellant as this courts decision in
Pointes
now makes clear. As
    stated in
Pointes
, at para. 84:

The onus rests on the plaintiff to
    convince the motion judge that, looking at the motion record through the
    reasonableness lens, a trier could conclude that none of the defences advanced
    would succeed. If that assessment is among those reasonably available on the
    record, the plaintiff has met its onus.

[12]

Put
    another way, the onus on the appellant was not to show that there was no possibility
    that the defence of fair comment could succeed but, rather, just that it was reasonably
    possible that a trier could conclude that the defence would not succeed.

[13]

We
    do not agree with the motion judge that a trier could only conclude that the
    comments made by the respondent were matters of opinion, rather than matters of
    fact. Having regard to the entirety of the respondents comments, and the
    context in which they were made, we are satisfied that a reasonable trier could
    conclude that she was stating facts and not opinions. Specifically, a
    reasonable trier could view her claims of volume loss in her face, as a result
    of the laser treatments, as statements of fact. If a trier concluded that the
    respondent was making a factual assertion, then the defence of fair comment
    would not be available:
WIC Radio Ltd. v. Simpson
, 2008 SCC 40, [2008]
    2 S.C.R. 420, at paras. 26-28. Consequently, the appellant had met its burden
    under s. 137.1(4)(a)(ii).

[14]

However,
    that conclusion does not lead to a different result in terms of the dismissal
    of the action because, in our view, the appellant has not satisfied the
    balancing exercise under s. 137.1(4)(b).

[15]

While
    the appellant has filed evidence of some lost business as a result of the
    reviews that the respondent posted, it has not provided any quantification of
    those losses nor identified how those losses relate to its overall business.
    The appellant has not, therefore, established that any harm that it has
    suffered at the hands of the respondent is sufficiently serious that the
    public interest in permitting the proceeding to continue outweighs the public
    interest in protecting that expression: see s. 137.1(4)(b).

[16]

The
    action was therefore properly dismissed. We note in passing that the appellant
    had raised, in its factum, an issue as to whether the procedural constraints
    inherent in a proceeding under Rule 76 should, in some fashion, affect the
    analysis under s. 137.1. However, the appellant abandoned that issue at the
    hearing.

[17]

The
    appellant also sought leave to appeal the costs award made by the motion judge.
    We would not grant leave to appeal. The appellant has not satisfied us that the
    motion judge erred in exercising his discretion in fixing costs such that leave
    to appeal should be granted:
Brad-Jay Investments Ltd. v. Szijjarto
(2006),
    218 O.A.C. 315 (C.A.), at para. 21, leave to appeal dismissed [2007] S.C.C.A.
    No. 92.

Conclusion

[18]

The
    appeal is dismissed with costs to the respondent fixed in the agreed amount of
    $10,000, inclusive of disbursements and HST.

Doherty
    J.A.

G.
    Pardu J.A.

I.V.B.
    Nordheimer J.A.





[1]

Google Inc. was never served with the statement of claim and did
    not participate in the motion.


