



COURT OF APPEAL FOR ONTARIO

CITATION: Weisleder v. Ontario Secondary School
    Teachers' Federation, 2020 ONCA 181

DATE: 20200309

DOCKET: C67581

Feldman, Huscroft and Harvison Young JJ.A.

BETWEEN

Barry Weisleder

Plaintiff (Appellant)

and

The Ontario Secondary School Teachers' Federation

Defendant (Respondent)

Alexander Zivkov, for the appellant

Joanna Birenbaum and Kristen Allen, for the
    respondent

Heard: March 4, 2020

On appeal from the judgment of Justice Jane Ferguson of
    the Superior Court of Justice, dated October 8, 2019.

REASONS FOR DECISION

[1]

The respondent union was granted summary judgment dismissing Mr.
    Weisleders defamation action. Mr. Weisleder argues that the motion judge made
    several errors in characterizing the nature of the allegedly defamatory speech
    and erred in concluding that the speech was protected by qualified privilege.
    He also argues that the issue of whether the privilege was defeated by malice
    could not be decided on summary judgment and required the court to hear viva
    voce evidence to determine credibility.

[2]

We see no error in the motion judges decision.

[3]

The motion judge properly concluded that, even assuming the speech was
    defamatory, it was protected by qualified privilege. She found that the
    dominant motive of the impugned speech in the pamphlet distributed at the
    annual general meeting, and the excerpt, which she found was not distributed, was
    to provide a history of the bargaining unit; that the union had an interest and
    duty to respond to Mr. Weisleders allegations; and that the union members had
    a corresponding right or interest to receive the information. This was
    sufficient to establish qualified privilege.

[4]

In order to defeat the claim of privilege, Mr. Weisleder was required to
    establish malice and he failed to do so. Although the motion judge noted Ms.
    Burkes dislike of Mr. Weisleder, she found no evidence to refute the dominant purpose
    of the pamphlet or the excerpt. Nor was the occasion of privilege exceeded. The
    motion judge found that the words were not disproportionate to the occasion on
    which they were communicated. The impugned speech was balanced, bland and
    reasonable, particularly in light of the context of the inflammatory and
    vindictive words used by Weisleder over a number of years. These findings were
    open to the judge on the evidence and are entitled to deference from this
    court.

[5]

Although there are cases where the record before the court may be
    insufficient to decide the issue of malice on summary judgment (see
Baglow
    v. Smith
, 2012 ONCA 407, 110 O.R. (3d) 481, at paras. 31-32;
McDonald
    v. Freedman
, 2013 ONSC 6812 (Div. Ct.), at para. 68), in this case there
    was an ample evidentiary record before the motion judge that allowed her to
    make the findings she did. That record included transcripts of examinations for
    discovery of the key people at the union together with affidavits of other
    people and cross-examinations thereon.

[6]

The appellant raised the issue of reasonable apprehension of bias,
    seemingly based on the fact that the motion judge did not accept his position.
    There is no basis to raise this issue and no merit to it.

[7]

The appeal is dismissed. The respondent is entitled to costs of the
    appeal in the agreed amount of $15,000, inclusive of taxes and disbursements.

K. Feldman J.A.

Grant Huscroft J.A.

A. Harvison Young
    J.A.


