



COURT OF APPEAL FOR ONTARIO

CITATION: Lascaris v. Bnai Brith Canada, 2019 ONCA 163

DATE: 20190304

DOCKET: C65698

Doherty, Pardu and Nordheimer JJ.A.

BETWEEN

Alexander Dimitri Lascaris

Plaintiff

(Appellant)

and

Bnai Brith Canada

Defendant

(Respondent)

Marie Henein, Alex Smith and Mark Strychar-Bodnar for the appellant

David Elmaleh and Gabriela Caracas, for the respondent

Heard: February 15, 2019

On appeal from the order dated June 28, 2018 by Justice Helen
    A. Rady of the Superior Court of Justice, with reasons reported at 2018 ONSC 3068.

Nordheimer J.A.:

[1]

The appellant, Dimitri Lascaris, appeals from the order of the motion
    judge that dismissed his action pursuant to s. 137.1 of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43 on the basis that it was a so-called
    SLAPP action.
[1]

[2]

For the reasons that follow, I would allow the appeal and set aside the
    order below.

Background

[3]

The appellant is a lawyer. He was member of the New York State Bar from
    1992 to 2016, and has been a member of the Law Society of Ontario since 2004.
    At the end of 2015, the appellant retired from private practice to further
    pursue independent journalism, provide
pro bono
legal services in
    human rights matters and engage in other activities.

[4]

The appellant is an advocate for human rights. He publicly criticizes a
    range of states and governments for human rights violations, including Saudi
    Arabia, Egypt, the United States, Canada, and Israel. The appellant advocates
    for Palestinian rights, and has criticized certain actions taken by Israel.

[5]

The respondent Bnai Brith Canada is an independent, charitable
    organization involved in human rights and advocacy initiatives. It describes
    itself as the primary grassroots voice for the Canadian Jewish community. It is
    dedicated to combating anti-Semitism and racism. The respondent intervenes in courts
    on issues that it views as important to Canadians, and it publishes articles,
    press releases and studies on topics that it views as being of interest to the
    Canadian public.

[6]

In the 2015 federal election, the appellant ran as a candidate for the
    Green Party of Canada. Despite not securing a seat in Parliament, in early
    2016, the appellant was invited by the Green Partys leader, Elizabeth May, to
    become the Justice Critic in her shadow cabinet. He took on this role in March
    2016.

[7]

In April and May of 2016, the appellant visited Israel to meet with and
    interview Eritrean refugees connected to a legal case (otherwise unrelated to
    this appeal). During his visit, the appellant met with Mr. Muhammad Alayan, a
    lawyer and author in East Jerusalem who wanted to discuss a human rights
    matter. On April 30, 2016, the two met in the lobby of the appellants hotel
    for two hours. During their interaction, Mr. Alayan told appellant the
    following:

·

One of his children, Bahaa Alayan, had been a political activist
    in East Jerusalem;

·

To draw attention to the plight of Palestinians, Bahaa and fellow
    activists formed the largest ever human reading chain around the walls of
    Jerusalems Old City;

·

After the peaceful reading chain, Bahaa had been repeatedly
    questioned and harassed by Israeli intelligence officials;

·

In October 2015, he learned that his son had been killed by
    Israeli forces in East Jerusalem. The Israeli authorities alleged that his son
    had attacked and killed adult Israeli settlers on a bus with a knife in Mr.
    Alayans neighbourhood. Mr. Alayan had not seen any evidence to support the
    allegations against his son and he did not believe them. Further, he stated
    that he believed his son had been killed by Israeli forces extrajudicially. His
    sons body was never returned to the family.

·

Mr. Alayan had repeatedly requested the return of his sons body,
    as he wanted to conduct a proper burial and wanted an independent forensic
    examination to be conducted. Because he was a respected lawyer, other families
    in East Jerusalem asked Mr. Alayan to also negotiate for the return of their
    relatives bodies that were being similarly held by Israeli authorities.

·

After protracted negotiations, Mr. Alayan rejected the only offer
    made by the authorities, that the bodies would be returned on the strict
    condition that they be buried within an hour of delivery to the families,
    precluding proper burials and ensuring that no independent examinations could
    be conducted.

·

Within 24 hours of rejecting the offer, Israeli authorities
    ordered the demolition of Mr. Alayans family home and his family was now homeless,
    living in a tent on their property.

[8]

Mr. Alayan stated that whatever his son may or may not have done, he
    believed that he and his family were being subjected to collective punishment
    and this would constitute a violation of international law. Mr. Alayan asked
    the appellant to speak out on his familys behalf and authorized the appellant
    to disclose everything he had relayed, as he had nothing to hide.

[9]

It was reported widely in the media that, on October 14, 2015, Bahaa
    Alayan boarded a public bus in Jerusalem, together with an accomplice, and
    began a shooting and stabbing spree, murdering three Israeli civilians. Police
    arrived, and shot and killed Bahaa Alayan. Bahaa Alayans accomplice was
    captured alive and eventually found guilty of murder and terrorism-related
    offences, receiving three life sentences. After this event, the Popular Front
    for the Liberation of Palestine issued a statement which specifically noted
    that Bahaa Alayan was one of the resistance fighters who engaged in an
    operation at a Zionist bus station in Jerusalem.

[10]

After
    the meeting, the appellant conducted some of his own research into what Mr.
    Alayan had told him. On May 1, 2016, the appellant posted two Facebook
    comments. In the first post, the appellant articulated what Mr. Alayan told him,
    stated that Bahaa Alayan had been killed extrajudicially, posted a link to an
    article supporting this narrative, criticized the use of collective punishment
    in general, and against the Alayan family in particular, and stated that
    whatever Bahaa Alayan may or may not have done, the Israeli governments treatment
    of Muhammad Alayan [the father] is an outrage.

[11]

In
    a subsequent post the same day, the appellant posted a photo of himself with
    Mr. Alayan. He referred back to his preceding post, and restated that Bahaa Alayan
    had been killed extrajudicially and that his body had not been returned to Mr.
    Alayan.

[12]

Upon
    his return to Canada, in May 2016, the appellant decided to advance a policy
    resolution calling on the Green Party to support the use of peaceful boycott,
    divestment and sanctions (BDS) to bring an end to Israels occupation of
    Palestinian territories.

[13]

Starting
    in June 2016, the respondent began a campaign against the Green Party, Ms. May,
    the appellant, and others related to the BDS Resolution. In several statements
    posted to its website, the respondent stated that support for the BDS
    Resolution was anti-Semitic and that one group involved in drafting the BDS
    Resolution had engaged in Holocaust denial and promoted anti-Semitism.

[14]

On
    August 3, 2016, Ms. Mays Chief of Staff warned the appellant that the respondent
    had informed Ms. May that it intended to release an investigation it had
    conducted into the appellant and was going to make serious accusations against
    him.

[15]

On
    August 4, 2016, the day before the commencement of the Green Partys biannual
    convention, the respondent published an article entitled Green Party Justice
    Critic Advocates on Behalf of Terrorists. The article contained a photo of the
    appellant with Mr. Alayan and a screen shot of the appellants second Facebook
    post. The first sentence of the article stated Dimitri Lascaris, official
    Justice Critic of the Green Party of Canada, has used social media to advocate
    on behalf of terrorists who have murdered Israeli civilians, a Bnai Brith
    Canada investigation has revealed. The article went on to describe the
    appellants trip to Israel, his meeting with Mr. Alayan, and some of the
    appellants other postings on social media. The article called on Ms. May to
    remove the appellant from her shadow cabinet. The appellant had not been
    contacted by the respondent regarding the article.

[16]

On
    August 10, 2016, the appellant gave an interview wherein he discussed the BDS
    Resolution and responded to the respondents claim that he had advocated on behalf
    of terrorists. He said in the interview that:

I dont know, and I dont purport to know, whether in fact
    [Bahaa Alayan] committed the crimes of which he is accused. And if he actually
    attacked innocent civilians, I condemn that. I do not condone any attacks by
    anybody on any innocent civilians or civilian infrastructure. Thats against
    international law. Its an atrocity. And its not to be tolerated.

[17]

On
    September 13, 2016, the appellant was removed from his position in the Green
    Partys shadow cabinet for refusing to apologize for an op-ed article that he
    and others had written criticizing the leader of Green Party of British
    Columbia for his condemnation of the BDS Resolution. On September 14, 2016, the
    respondent published an article praising the appellants removal and linking
    back to its previous article. It stated that the respondent had previously
    urged  Elizabeth May to dismiss Lascaris as justice critic after it exposed that
    he advocated on behalf of terrorists who murdered three Israeli civilians in
    Jerusalem.

[18]

On
    December 20, 2016, the respondent published a year in review article, wherein
    it again stated that it had exposed the appellant for using social media to evoke
    sympathy for a Palestinian terrorist.

[19]

On
    or about April 3, 2017, the appellant discovered another publication on the respondents
    Twitter account, stating: Dimitri Lascaris resorts to supporting #terrorists
    in his desperation to delegitimize the State of #Israel. The tweet contained a
    link to the respondents August 4, 2016 article, which accused the appellant of
    being an advocate on behalf of terrorists.

[20]

After
    the tweet, the appellant served notice upon the respondent regarding the
    defamatory publications under s. 5(1) of the
Libel and Slander Act
,
    R.S.O. 1990, c. L.12. The respondent did not retract, remove, correct or edit
    its publications. The appellant then served an amended statement of claim on or
    about July 4, 2017, and the respondent served a statement of defence on or
    about August 24, 2017. In its statement of defence, the respondent pleaded
    justification, qualified privilege, fair comment, and notice based defences
    under the
Libel and Slander Act
.
[2]


The s. 137.1 motion

[21]

The
    respondents motion to dismiss the action under s. 137.1 was heard on February 6
    and April 20, 2018.On June 28, 2018, the motion judge released her decision in
    which she granted the respondents motion and dismissed the appellants action.

[22]

The
    motion judge found there was no doubt that the respondents expressions related
    to matters of public interest, under s. 137.1(3): at paras. 39-40. The motion
    judge then proceeded from that point to say that she was prepared to assume
    that the appellants claim had substantial merit, within the meaning of s.
    137.1(4)(a)(i): at para. 46.

[23]

Turning
    to s. 137.1(4)(a)(ii), which requires the plaintiff to prove that the
    respondent has no valid defence in the proceeding, the motion judge stated that
    this required the appellant to demonstrate that none of the defences raised by
    the respondent could possibly succeed: at para. 48. However, in considering
    the defences raised by the respondent, the motion judge found that the
    appellant faced an insurmountable hurdle with respect to the defence of fair
    comment: at para. 55. Consequently, she did not deal with the respondents
    justification, qualified privilege or notice defences. The motion judge also
    did not consider the balancing part of the test set out in s. 137.1(4)(b).

[24]

Regarding
    the issue of fair comment, the motion judge set out the constituent elements of
    the defence of fair comment, as articulated in
WIC Radio Ltd. v. Simpson
,
    2008 SCC 40, [2008] 2 S.C.R. 420, at para. 28:

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

(b) the comment must be based on fact;

(c) the comment, though it can include inferences of fact, must
    be recognisable as comment;

(d) the comment must satisfy the following objective test:
    could any person honestly express that opinion on the proved facts?

(e) even though the comment satisfies the objective test the
    defence can be defeated if the plaintiff proves that the defendant was
    subjectively actuated by express malice.

[25]

The
    motion judge was satisfied that each constituent element was present. The
    motion judge had already found that the comments were on matters of public interest.
    She also found that they were based on fact. The motion judge further found
    that the comments were arguably recognizable as opinion. She referred to the
    view that words that appear to be statements of fact may, in pith and
    substance, be properly construed as comment, particularly in an editorial
    context where loose, figurative, or hyperbolic language is used in the context
    of political debate, commentary, media campaigns and public discourse: at paras.
    56-58.

[26]

Regarding
    the last constituent element of the defence of fair comment, the motion judge
    found that any person could honestly express the opinion, on the proved facts.
    She found that while it might not be reasonable to hold this view, a person
    could honestly believe that support for Mr. Alayan and his family constituted
    support for terrorists. She stated that a person who knows that Bahaa Alayan
    was allegedly involved in a terrorist attack could believe that Mr. Lascaris
    supported terrorists as a result of his meeting with Mr. Muhammad Alayan and
    his posts online about the Alayan family: at para. 60.

[27]

Finally,
    the motion judge found that the respondent was not motivated by malice as there
    was no evidence that the respondent was acting other than in the pursuit of its
    genuinely held beliefs: at paras. 63-64. The motion judge found that the
    expressions fell within the purpose of the fair comment defence which is the
    protection of freedom of expression in order to influence public opinion on
    genuine public issues: at paras. 62, 65.

[28]

In
    the end result, the motion judge concluded that the appellant had not met his
    burden of demonstrating, under s. 137.1(4)(a)(ii), that no valid defence
    exists.

Analysis

[29]

Before
    I begin my analysis, I should note that the motion judge heard and decided the
    s. 137.1 motion before this court released a series of judgments interpreting
    s. 137.1 in some detail: see
1704604 Ontario Ltd. v. Pointes Protection
    Association
, 2018 ONCA 685, 142 O.R. (3d) 161, and the related cases that
    were released simultaneously. To a large degree, the motion judges analysis has
    been overtaken by
Pointes
and those related authorities.

[30]

I
    begin with two observations regarding the purpose behind s. 137.1. As this
    court observed in
Pointes
, at para. 73, s. 137.1 operates as a
    screening device. It is not to be used as a surrogate for summary judgment:
Pointes,
at para. 78. The motion is intended to be brought at the outset of the
    proceeding before either the plaintiff or the defendant has had the opportunity
    to marshal the type of evidence that they would for a trial. Indeed, motions
    under s. 137.1 will often be heard before there has been any form of pre-trial
    discovery.

[31]

The
    other observation is that this action has none of the recognized indicia of a
    SLAPP lawsuit. As pointed out in
Platnick v. Bent
, 2018 ONCA 687, 426
    D.L.R. (4th) 60, at para. 99, those indicia are:

·

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.

[32]

There
    is no history of the appellant using litigation or the threat of litigation to
    silence critics. If there is any financial or power imbalance, it would appear
    to be in favour of the respondent, not the appellant. There is no evidence that
    the appellant has a punitive or retributory purpose in bringing this action
    and, as I discuss further below, the potential damages to the plaintiff are
    significant.

[33]

In
    my view, the motion judge erred in her analysis in one principal respect. The
    burden on the appellant under s. 137.1(4)(a)(ii) is not to show that a given
    defence has no hope of success. To approach s. 137.1(4)(a)(ii) in that fashion
    risks turning a motion under s. 137.1 into a summary judgment motion. Rather,
    all that the appellant need show is that it is possible that the defence would
    not succeed. As Doherty J.A. 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.

[34]

In
    my view, a reasonable trier could conclude that the defence of fair comment
    would not succeed. It would be open to a trier to conclude that the statements
    made about the appellant  namely, that he supported terrorists  were uttered
    as statements of fact, not as statements of opinion. Further, even if the
    statements are viewed as opinion, a trier could also conclude that, on the
    available facts, a person could not honestly express that opinion based on the
    proved facts. The fact that a person supports a parent, whose child has
    committed a terrible act, does not make that person a supporter of the childs
    actions. A trier might also conclude that the respondents repetition of the
    statements, after the appellant expressly disavowed support for terrorism, made
    the defence of fair comment unavailable.

[35]

While
    the motion judge did not deal with the other defences raised because of her
    conclusion on the defence of fair comment, I must do so given the error that I
    have found in the motion judges analysis. For the same reasons that I have
    just outlined in dealing with the defence of fair comment, those realities
    could serve to defeat any defence of justification.

[36]

For
    qualified privilege to apply, the respondent must have an interest or a duty,
    legal, social, or moral, to make [the impugned statements] to the person to
    whom [those statements are] made:
Hill v. Church of Scientology of Toronto
,
    [1995] 2 S.C.R. 1130, at para. 143. It is unclear what duty, of that type, the
    respondent could point to in order to qualify its statements as falling within
    a situation of qualified privilege, which in any event is rarely available for
    widely circulated publications Indeed, I note that the respondent did not
    pursue this defence on the appeal.

[37]

In
    the end result, in my view, the appellant has met his burden under s. 137.1(4)(a)(ii)
    to show that a reasonable trier might conclude that none of the defences
    advanced would succeed.

[38]

That
    leaves the balancing requirement under s. 137.1(4)(b). Because of her
    conclusion regarding the defence of fair comment, the motion judge did not consider
    the balancing requirement under s. 137.1(4)(b). Consequently, this court must
    do so.

[39]

Section
    137.1(4)(b) reads:

[T]he 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.

[40]

In
    my view, this balance clearly favours the appellant. I say that because, if the
    appellants action proceeds and if the appellant is ultimately successful, the
    damages to which the appellant 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.

[41]

That
    reality is sufficient to establish the seriousness of the harm to the appellant
    and to rebut the respondents submission that the appellant failed to lead any
    evidence to show any damage to his reputation arising from the impugned
    statements. On that latter point, I would adopt the observation made by Bean J.
    in
Cooke v. MGN Limited
, [2014] EWHC 2831, [2015] 2 All ER 622 (QB),
    at para. 43:

Some statements are so obviously likely to cause serious harm
    to a persons reputation that this likelihood can be inferred. If a national
    newspaper with a large circulation wrongly accuses someone of being a terrorist
    or a paedophile, then in either case (putting to one side for the moment the
    question of a prompt and prominent apology) the likelihood of serious harm to
    reputation is plain, even if the individuals family and friends knew the
    allegation to be untrue.
[3]

See also
Grant v. Torstar Corp.,
2009 SCC 61,
    [2009] 3 S.C.R. 640, at para. 111.

[42]

Further,
    the appellant is a lawyer. A lawyers reputation is central to his/her ability
    to carry on their profession. As Cory J. said in
Hill
, at para. 118:

The reputation of a lawyer is of paramount importance to
    clients, to other members of the profession and to the judiciary. A lawyer's
    practice is founded and maintained upon the basis of a good reputation for
    professional integrity and trustworthiness. It is the cornerstone of a lawyer's
    professional life. Even if endowed with outstanding talent and indefatigable
    diligence, a lawyer cannot survive without a good reputation.

[43]

The
    fact that the appellant is no longer engaged in private practice does not mean
    that his reputation is still not of consequence. The appellant continues to
    represent clients on a
pro bono
basis. His reputation will mean as
    much to those clients as it would to any other client, especially given the
    nature of the clients to whom he devotes his services.

[44]

In
    reaching that conclusion, I do not mean to suggest that the views of the
    respondent are not without merit or importance. However, fair disagreements
    over policies and principles can be undertaken, indeed ought to be undertaken,
    through responsible discourse. Whatever disagreements there may be between the
    appellants views and the respondents views, those views can be exchanged and
    debated without the need for personal attacks. It remains open to the
    respondent to express its views on issues that concern it, such as the BDS
    Resolution and broader BDS debate, for example, without engaging in speech that
    is arguably defamatory.

Conclusion

[45]

The
    appeal is allowed, the order below is set aside, and the matter is remitted to
    the Superior Court of Justice. The appellant is entitled to his costs of the
    appeal in the agreed amount of $15,000 inclusive of disbursements and HST.

[46]

If
    the parties cannot agree on the costs of the motion below, they may make
    written submissions. I would note, on that point, that s. 137.1(8) provides a
    presumption that there will be no costs of an unsuccessful motion under s.
    137.1. The appellant is to file his submissions within 15 days of the date of
    these reasons and the respondent is to file its submissions within 10 days
    thereafter. No reply submissions are to be filed and each partys submissions
    shall not exceed five pages.

Released: DD March 4, 2019

I.V.B. Nordheimer J.A.
I agree. Doherty J.A.
I agree. G. Pardu J.A.





[1]

Strategic Litigation against Public Participation (SLAPP).



[2]
In its statement of defence, the respondent raises issues regarding the timing
    of the notice that the appellant provided. The motion judge briefly adverted to
    (but did not deal with) this defence. The parties did not address this issue in
    their written submissions to this court. As a result, I do not view it as
    necessary to deal with this defence in these reasons.



[3]

This passage was cited with approval in
Lachaux v.
    Independent Print Ltd
[2017] EWCA Civ. 1334, [2018] QB 594 (C.A.), at
    paras. 65-66.


