



COURT OF APPEAL FOR ONTARIO

CITATION: Levant v. Day, 2019 ONCA 244

DATE: 20190328

DOCKET: C64586

Doherty, Pardu and Nordheimer JJ.A.

BETWEEN

Ezra Levant

Plaintiff (Respondent)

and

Robert P.J. Day

Defendant (Appellant)

Jeff G. Saikaley, for the appellant

A. Irvin Schein, for the respondent

Heard: February 12, 2019

On appeal from the
    order of Justice Carole J. Brown of the Superior Court of Justice, dated October
    18, 2017, with reasons reported at 2017 ONSC 5956, 17 C.P.C. (8th) 183, and
    from the costs order dated October 31, 2018, with reasons reported at 2018 ONSC
    6236.

Pardu
    J.A.:

[1]

The defendant in this action for damages for
    defamation appeals from the decision of a motion judge refusing to dismiss the
    action pursuant to s. 137.1 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43, the Anti-SLAPP
[1]
 provisions. He
    submits that the motion judge erred in coming to the following conclusions:

1.

The appellants tweets did not relate to a
    matter of public interest.

2.

The defence of fair comment was not available to
    the appellant and that the notice provisions of the
Libel and Slander Act
,
    R.S.O. 1990, c. L. 12, are inapplicable to Internet publications.

3.

The public interest in allowing the proceeding to continue
    outweighed the public interest in protecting the appellants expression.

[2]

In oral argument, the appellant submitted that
    the motion judge should have found that the impugned expression related to a
    matter of public interest and that in the absence of any harm to the respondent,
    the action should have been dismissed without an analysis of the merits of the
    claim and the availability of various defences. The appellant also seeks leave
    to appeal from the costs order made against him.

[3]

For the reasons that follow, I dismiss the
    appeal but grant leave to appeal from the costs order and vary that order
    accordingly.

A.

FACTS

[4]

The appellant and the respondent are from
    opposite ends of the Twitterverse. The motion judge described the respondent
    as the principle of an online media outlet, Rebel News, which is known as an
    online media site that comments on political and social issues, espousing
    right-wing or right-leaning views:
Levant v. Day
, 2017 ONSC 5956, 17 C.P.C. (8th) 183, at para. 6.

[5]

The motion judge described the appellant as a
    regular participant on social media for over a decade who maintained a blog
    named Canadian Cynic:
Levant
, at para. 7. He
    expressed his views almost exclusively on Twitter. The appellant describes his
    views as liberal, progressive and left-wing.

[6]

From early May to early June 2016 the appellant
    posted tweets highly critical of the respondent and of Rebel News relating to
    their campaign to raise money for the victims of the Fort McMurray forest fires.

[7]

In those tweets the appellant alleged matters
    such as the following:

1.

The respondent was engaged in a scam of
    unadulterated sleaziness so that he could improperly take advantage of other
    donors charitable tax receipts. By leading the fundraising campaign, the respondent
    was enriching himself at the expense of forest fire victims.

2.

The respondent would use charitable donations
    intended for those victims to pay his personal legal expenses.

3.

The respondent falsely promised that donors to
    his campaign would get tax receipts.

4.

Fort McMurray residents would lose promised
    matching donations from the federal and provincial governments, which would
    have been available had donations been made directly to the Red Cross.

5.

The payment of a 5% administration fee meant
    less money went to victims.

6.

Even though the Red Cross confirmed on May 13
    that they would provide a charitable tax receipt to donors using the Rebel News
    website, the appellant continued to assert that the respondent had treated the
    donors badly, and said he could not have invented a scheme as sleazy or
    grandstanding or narcissistic as what Ezra came up with.

7.

On June 1, 2016 the appellant tweeted that he
    was advised by authoritative sources that the donations made as a result of the
    respondents campaign would not qualify for matching donations, and the donors
    would not get tax receipts.

8.

On June 3 and 4, 2016, the appellant suggested
    that the respondent had a reputation as a liar, con artist and scumbag, with
    little reputation to damage, and that he had siphoned his money away from the
    Red Cross.

9.

Finally, on June 4, the appellant suggested that
    the respondent was fucking donors out of their tax receipts, implied that he was
    a sleazy opportunist, hack, con artist and grafter and that he was raising
    money for himself.

B.

sTATUTORY SCHEME

[8]

Sections 137.1(1) - (4) of the
Courts
    of Justice Act
provide as follows:

Dismissal of proceeding that limits debate

Purposes

137.1 (1) The purposes of this section and sections 137.2 to
    137.5 are,

(a) to encourage individuals to express themselves on matters
    of public interest;

(b) to promote broad participation in debates on matters of
    public interest;

(c) to discourage the use of litigation as a means of unduly
    limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in
    debates on matters of public interest will be hampered by fear of legal action.

Definition, expression

(2) In this section,

expression means any communication, regardless of whether it
    is made verbally or non-verbally, whether it is made publicly or privately, and
    whether or not it is directed at a person or entity.

Order to dismiss

(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.

No dismissal

(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.

C.

ANALYSIS

(1)

Did the appellants tweets relate to a matter of public interest?

[9]

The motion judge held that the appellant had failed to satisfy his onus
    of showing that the expressions related to a matter of public interest:
Levant,
at paras. 24-25. She recognized that the Fort McMurray fires were matters of
    public interest, but found that the Day tweets were, in pith and substance,
    direct personal attacks on Ezra Levant:
Levant
, at para. 24. Citing
Able
    Translations Ltd. v. Express International Translations Inc.
, 2016 ONSC
    6785, 410 D.L.R. (4th) 380, affd 2018 ONCA 690, 428 D.L.R. (4th) 568, the
    motion judge noted that [w]here the pith and substance of the matter is a
    defamatory personal attack thinly veiled as a discussion on matters of public
    interest, the court has all the tools it requires to determine the true nature
    of the expression and rule accordingly:
Levant
, at para.  23.

[10]

The
    motion judge did not have the benefit of this courts decision in
1704604 Ontario
    Ltd. v.

Pointes Protection Association
, 2018 ONCA 685, 142 O.R. (3d) 161,
in which the concept of
    public interest was summarized at para. 65:

In summary, the concept of public
    interest as it is used in s. 137.1(3) is a broad one
that does not take
    into account the merits or manner of the expression, nor the motive of the
    author
. The determination of whether an expression relates to a matter of
    public interest must be made objectively, having regard to the context in which
    the expression was made and the entirety of the relevant communication. An expression
    may relate to more than one matter. If one of those matters is a matter of
    public interest, the defendant will have met its onus under s. 137.1(3).
    [Emphasis added.]

[11]

In
    focusing on the merits of the allegation of defamation, the manner of expression
    and the motives of the author, the motion judge committed an extricable error
    of law displacing the deference otherwise due to her conclusion. While the
    motion judge found that the appellant had launched a defamatory personal
    attack, his motive for the tweets is a matter distinct from the subject matter
    of the tweets.

[12]

The
    appellants tweets, when taken as a whole and in context, are about the
    legitimacy of the respondents fundraising campaign, the benefits which should
    properly flow to victims of the Fort McMurray forest fires from charitable
    contributions and the treatment of donor contributions. These indisputably
    relate to a matter of public interest.

(2)

Were there grounds to believe that the appellant had no valid defence in
    the proceedings?

[13]

The
    respondent satisfied the motion judge that there were grounds to believe that
    the appellant had no valid defences. The appellant had advanced the defences of
    fair comment and failure to provide notice pursuant to s. 5(1) of the
Libel
    and Slander Act
(the Act). The motion judge characterized the impugned Twitter
    posts as statements of fact, not comment based on facts:
Levant
, at
    para. 38. She observed that the statements were repeated, even after the
    appellant knew the statements were untrue:
Levant
, at para. 40. She
    concluded that the statements were motivated by malice and that there were
    reasonable grounds to believe that no defence of fair comment was made out:
Levant,
at paras. 41-42. With respect to the notice defence, the motion judge was of
    the view that s. 5(1) of the Act did not apply to Twitter posts:
Levant,
at paras. 45-47. In particular, the motion judge found that s. 5(1) of the Act
    refers to libel in a newspaper and broadcast, and noted that the appellant
    failed to provide any evidence regarding the functioning of Twitter or provide
    policy reasons to justify extending the meaning of broadcast to include
    content disseminated via Twitter:
Levant
, at paras. 45-47. The motion
    judge also declined to take judicial notice of such facts:
Levant
, at
    para. 46.

[14]

Pointes
instructs that [s]ection 137.1 does not provide an alternate means by which
    the merits of a claim can be tried, and it is not a form of summary judgment
    intended to allow defendants to obtain a quick and favourable resolution of the
    merits of allegations involving expressions on matters of public interest: at
    para. 73. Rather, the motion judge must decide whether a conclusion that the
    defendant has no valid defence falls within the range of conclusions
    reasonably available on the motion record:
Pointes
,
at para. 75. Here, a trier could
    reasonably conclude that some of the defamatory statements made amounted to
    factual assertions, were not recognisable as comment and could reasonably
    conclude that the statements were made with malice. A trier might also
    reasonably conclude that s. 5(1) of the Act does not apply to the Twitter
    posts. Thus, the respondent has demonstrated that a conclusion that the
    appellant has no defence to the action is amongst the range of reasonable
    conclusions which might be reached by a trier and as such has met the test in
    s. 137.1 (4)(a)(ii), as explained in
Pointes
. Since the respondent has
    surmounted this hurdle, an analysis of the balancing test in s. 137.1(4)(b) is
    required.

(3)

Is the harm suffered or likely to be suffered serious enough to outweigh
    the public interest in protecting the expression embodied in the tweets?

[15]

The
    motion judge indicated that she was satisfied that the interest in permitting
    the within proceeding to continue to trial outweighs the public interest in
    protecting the impugned expression contained in the Day [tweets]. In the
    circumstances of this case, there is no public interest in protecting said
    [tweets]:
Levant
, at para. 54.

[16]

Sometimes
    claims of defamation may exact too great a cost to the public interest in
    promoting and protecting freedom of expression in relation to matters of public
    interest:
Pointes
,
at
    para. 86.

[17]

As
    pointed out in the Anti-SLAPP Advisory Panel
[2]
,
Report to the Attorney General
(Ontario: Ministry of the Attorney General,
    2010), at para. 37:

If an action against expression on
    a matter of public interest is based on a technically valid cause of action but
    seeks a remedy for only insignificant harm to reputation, business or personal
    interests, the actions negative impact on freedom of expression may be clearly
    disproportionate to any valid purpose the litigation might serve.

[18]

Here,
    the alleged defamatory statements accused the respondent of defrauding victims
    of the Fort McMurray forest fires. While the harm suffered or likely to be
    suffered may often be measured primarily by the monetary damages suffered or
    likely to be suffered, the preservation of ones good reputation has inherent
    value beyond the monetary value of the claim:
Pointes,
at para. 88.
    Here, we are told the appellant had around 11,000 followers on Twitter. There
    is no indication the statements were made to a private, or closed group. These
    were not statements made to a small group and quickly retracted. The statements
    attribute serious criminality to the respondent. On his discovery, the
    appellant accepted that donors were receiving tax receipts for their donations.
    He admitted that he had not made any inquiries of the government about matching
    donations. He also admitted that he had no information that the respondent received
    any personal benefit from the fundraising campaign.

[19]

The
    appellant submits that the respondent is a noisy troublemaker who does not
    shy away from controversy, and has participated in other defamation cases, as
    both plaintiff and defendant. The appellant submits that the respondents platform,
    Rebel Media, has relentlessly attacked and denigrated individuals and groups. The
    appellant further submits that the respondents reputation is so bad that the
    impugned tweets cannot have caused him any damages, especially since others
    made similar comments. Even if the appellants characterization of the respondents
    reputation were correct, and I make no finding on that issue, this is different
    from a reputation tainted with criminal conduct depriving innocent victims of
    charitable donations.

[20]

While
    there is an ephemeral quality to individual tweets, which may have some bearing
    on the damages ultimately awarded, here the appellant engaged in a sustained attack
    upon the respondent.

[21]

I
    cannot say that any damages awarded would necessarily be nominal, or that the respondent
    has suffered only insignificant harm.

[22]

On
    the other side of the balance, the quality of the expression and the motivation
    of the appellant are relevant to the measure of the public interest in
    protecting his expression:
Pointes,
at para. 94. This court in
Pointes
,
    at para. 94, held that deliberate falsehoods, gratuitous personal attacks or vulgar
    and offensive language, all part of the expression here, may reduce the public
    interest in protecting that speech, compared to cases where the message is
    delivered without the lies, vitriol, and obscenities.

[23]

This
    is not to say that resort to some vulgar language will necessarily deprive
    expression of value worth protecting. However here the tweets posted are imbued
    with hyperbole and vulgar vitriol, and admittedly false in many respects such that
    there is little value in protecting their expression.

[24]

On
    balance, the respondent has established that the harm likely to be suffered, or
    which has been suffered, is sufficiently serious that the public interest in
    allowing the proceeding to continue outweighs the public interest in protecting
    the appellants expression.

D.

LEAVE TO
    APPEAL COSTS

[25]

The appellant also seeks leave to appeal from
    the costs order made against him, following dismissal of his motion to dismiss
    the respondents action, relying on s. 137.1 of the
Courts of
    Justice Act
.

[26]

The motion judge awarded costs to the respondent,
    on a partial indemnity basis in the sum of $19,731.64: $13,666.22 was allocated
    for the anti-SLAPP motion, and $6047.42 was allocated for the costs of a failed
    motion to adduce fresh evidence, brought after the main motion was heard but
    before the decision was delivered to the parties.

[27]

The appellant submits that the motion judge
    erred in four respects:

1.

The decision awarding costs was tainted by
    procedural unfairness. While the decision on costs was under reserve, the respondents
    counsel made unsolicited submissions to the motion judge, without the
    appellants consent.

2.

The motion judge failed to give effect to s.
    137.1(8) of the
Courts of Justice Act
which provides that if a judge
    does not dismiss a proceeding under this section, the responding party is not
    entitled to costs on the motion, unless the judge determines that such an award
    is appropriate in the circumstances.

3.

The respondent unilaterally, and without the
    appellants consent adjourned the motion from June 20, 2017 to June 22, 2017. As
    a result, the appellant and his client incurred unnecessary travel costs from
    Ottawa to Toronto in the sum of $1222.38 which should be set off against any
    cost award.

4.

The motion judge did not award costs when she
    delivered her ruling on the fresh evidence motion. As a result, she had no
    authority to award costs of that motion when she decided the costs associated
    with the anti-SLAPP motion.

(1)

Procedural
    unfairness

[28]

I would grant leave to appeal from the costs
    order because of the procedural unfairness of counsel making further
    unsolicited submissions to the motion judge without the consent of the
    appellant, and without invitation from the court. While leave to appeal costs
    is rarely granted, in this case, this court should look at costs afresh because
    of the uncertainty as to the effect if any, those additional submissions had on
    the motion judge. Rule 1.09 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 provides:

When a proceeding is pending before the court, no party to the proceeding
    and no partys lawyer shall communicate about the proceeding with a judge,
    master or case management master out of court, directly or indirectly, unless,

(a) all the parties consent, in
    advance, to the out-of-court communication; or

(b) the court directs
    otherwise.

(2)

Section 137.1(8)

[29]

Both parties point to the underlying merits of
    each of their positions before the motion judge, and her assessment of the
    merits as having an impact upon the issue of costs of the motion. The most
    significant factor here, however, is that the anti-SLAPP motion was brought
    after the action was set down for trial. As indicated in
Pointes
at para. 73, s. 137.1 establishes a judicial screening or triage
    device designed to eliminate certain claims at an early stage of the litigation
    process. Section 137.1 contains various provisions intended to expedite the
    hearing of these motions, including a prohibition against taking other steps
    until the motion is heard:
Pointes
, at para.
    43. Given the serious cost consequences which can result from a successful
    anti-SLAPP motion, such as full indemnity costs as per s. 137.1(7), these
    motions should be brought early in the proceedings. Here, the delay in bringing
    the anti-SLAPP motion justified an award of costs in favour of the successful
    plaintiff, the respondent, despite s. 137.1(8).

(3)

The adjournment of the motion

[30]

The respondent does not deny that he adjourned a
    motion hearing date without the consent of the appellant, but says in his
    factum that [p]arties and their counsel are responsible for ensuring that they
    are aware of procedural developments in a case, including on an administrative
    level. The respondent submits that appellants counsel were made aware of the
    date change by email dated June 19, 2017, the date he says the hearing of the
    motion was scheduled to continue. The parties do not agree as to whether the
    motion was to be continued on June 19 or June 20, 2017. The record is not of
    much help establishing precisely what happened, nor exactly how the additional
    costs claimed were incurred. The motion judge did not address this issue.

[31]

The parties do not agree as to whether the
    appellant actually incurred additional costs as a result of a unilateral
    adjournment by the respondent. The appellants costs outline filed June 20,
    2017 claims $1747.66 for the changed flights and the appellant claims an offset
    of costs amounting to $1222.38. Given that the appellant certified that the
    costs were incurred, and having regard to the amounts and the distance
    travelled, I would credit the appellant for this unnecessary travel.

(4)

Did the motion judge have authority to award
    costs on the fresh evidence motion?

[32]

The motion for fresh evidence was inextricably
    linked to the motion judges hearing of the anti-SLAPP motion. In these
    circumstances she did not err in awarding costs of that motion.

[33]

Working from the motion judges assessment of
    the quantum of partial indemnity costs, with which no one takes issue, I would
    vary the costs awarded below for the anti-SLAPP motion and the motion to adduce
    fresh evidence to the sum of $18,000, inclusive of HST and disbursements, in
    favour of the respondent.

E.


DISPOSITION

[34]

I
    would accordingly dismiss the appeal with costs of the appeal to the respondent,
    in the agreed sum of $25,000, inclusive of disbursements and HST. As per the
    above, costs awarded below are varied to $18,000, inclusive of HST and
    disbursements, in favour of the respondent.

G. Pardu J.A.

I agree Doherty J.A.

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

Released: March 28, 2019





[1]

SLAPP means Strategic Litigation Against Public Participation.



[2]
The Anti-SLAPP Advisory Panel was assembled in 2010 to advise the Attorney
    General of Ontario on the potential content of legislation against SLAPPs and
    to help develop a test for courts to quickly recognize a SLAPP suit.


