



COURT OF APPEAL FOR ONTARIO

CITATION: Able Translations Ltd. v. Express International
    Translations Inc., 2018 ONCA 690

DATE: 20180830

DOCKET: C63055

Doherty, Brown and Huscroft JJ.A.

BETWEEN

Able Translations Ltd.

Plaintiff

(Appellant)

and

Express International Translations Inc. and
    Philippe Vitu

Defendants

(Respondents)

Jeffrey Radnoff and Charles Haworth, for the appellant

David J. McGhee, for the respondents

Heard: June 29, 2017

On appeal from the order of Justice Sean F. Dunphy of the
    Superior Court of Justice, dated November 8, 2016, with reasons reported at
    2016 ONSC 6785, 410 D.L.R. (4th) 380.

Doherty J.A.:

A.

overview

[1]

The appellant, Able Translations Ltd. (Able) sued the respondent,
    Philippe Vitu (Mr. Vitu) and his company, Express International Translations
    Inc. (Express) for defamation. The respondents successfully moved under s.
    137.1 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43,
for an order dismissing the action. The
    motion judge awarded costs to the respondents in the amount of $30,000 on a
    full indemnity basis.

[2]

Able appeals from the dismissal, and, if that appeal fails, seeks leave
    to appeal the costs order. I would dismiss the appeal and refuse leave to appeal
    costs.

B.

the alleged defamation

[3]

Able is one of Canadas largest and most successful language service
    companies. Mr. Vitu and his wife offer their services as English and French translators
    and interpreters through their company, Express. Express has no other
    employees.

[4]

Able commenced a defamation action in September 2015. The Amended Statement
    of Claim referred to an internet post made by Mr. Vitu on August 31, 2015,
    allegedly on his own behalf and on behalf of Express. Able alleged that the post
    falsely claimed that Able was disreputable in its business dealings and
    insolvent. Able further alleged that the defamatory comments were made
    vindictively and to advance the respondents financial interests. Able contended
    that the respondents were competitors of Able.

[5]

In addition to setting out the August 31, 2015 post, the Amended Statement
    of Claim referred to other allegedly defamatory posts and statements made by
    the respondents and others. Able did not identify the contents or specific sources
    of any of those posts or statements in its Claim.

[6]

On the s. 137.1 motion, Able led evidence of a second post by Mr. Vitu
    on the same day (August 31, 2015) and on the same website as the first post. There
    was no evidence before the motion judge of the content of any posts made by Mr.
    Vitu or Express other than the two posts made on August 31. I proceed on the
    basis that the two August 31 posts are the source of the alleged defamation.

[7]

The two posts were made on a website referred to as N49.com. The
    website acts as a bulletin board on which individuals can post comments and
    others can post responses to those comments. Some of the comments posted on the
    website related to Able and its dealings with translators and interpreters. Able
    also posted responses to those comments on that website.

[8]

The first August 31 post by Mr. Vitu is headed Press Conference to
    Denounce ABLE. The contents are set out in full by the motion judge (para.
    12). In the post, Mr. Vitu identifies Peter Fonseca as a candidate in the ongoing
    federal election. Mr. Vitu also identifies Mr. Fonseca as a former vice-president
    of Able. The post continues:

He [Fonseca] must know about ABLEs business and image and is
    part of it. Therefore, his claims as a candidate have no credibility.

I suggest that we organize and hold a press conference in
    Mississauga about 10 days to 2 weeks before the election (end of Sept., first
    days of October) to denounce FONSECA. We would invite a report from the Toronto
    Star, the Toronto Sun and Mississauga News. I would need as many of you as
    possible to enlighten the press about your experience with ABLE because people
    have to know.

I would be pissed that a guy that is part of the ABLE clique be
    elected to Ottawa.

[9]

Mr. Vitus second post on August 31 was a reply to someone who had
    responded to his initial post. In the second post, Mr. Vitu states: ABLEs
    attitude with interpreters is absolutely deplorable. He goes on to criticize interpreters
    who have worked for Able and who are unwilling to stand up to Able. Mr. Vitu
    indicates that only two interpreters had replied to his suggestion that they
    organize a press conference to denounce ABLE.

[10]

In
    his affidavit filed on the s. 137.1 motion, Mr. Vitu acknowledged that he
    authored the August 31 posts. He indicated that he did so in his personal
    capacity and not on behalf of Express. The posts make no reference to Express.

[11]

Mr.
    Vitu received a letter from Ables lawyers about a week after he made the
    posts. The letter demanded that the posts be removed immediately and that Mr.
    Vitu refrain from making any further comments of any kind about Able. The
    lawyers letter made no reference to Mr. Fonseca.

[12]

At
    about the same time that Mr. Vitu received the lawyers letter, someone (not
    Mr. Vitu) removed his posts from the site. Those posts did not reappear.

[13]

Mr.
    Vitu received libel notices from Ables lawyers in September and again in
    November of 2015. According to Mr. Vitus affidavit, the letters from the
    lawyers intimidated and frightened him. He decided that he would make no further
    public posts or comments about Mr. Fonseca, his relationship with Able, or Able
    itself. Mr. Vitu also decided that he would not proceed with the proposed press
    conference.

[14]

In
    his affidavit filed on the s. 137.1 motion, Mr. Vitu asserted that Able was
    notorious in the interpreter/translator community for its failure to pay
    freelance interpreters and translators at all, or at least in a timely way. Mr.
    Vitu noted that there were many comments on many other websites complaining
    about Ables poor business practices and reputation. Mr. Vitu did not refer to
    or re-publish any of those comments in his two posts. There was no evidence
    connecting him to any of those comments.

[15]

Ables
    vice-president filed an affidavit in which she indicated that Able could not effectively
    respond to many of the complaints that had been made about Ables payments to
    translators and interpreters because they were anonymous. She went on to
    explain that in the cases in which the complainant could be identified, Able
    took steps to resolve those complaints. She pointed out that the only judgment
    obtained against Able by a translator for services provided was a case in which
    Able did not have notice of the proceeding.

C.

the motion judges ruling

[16]

The
    motion judge considered the operation of s. 137.1 at some length. He focused on
    ss. 137.1(3), 137.1(4)(a), and 137.1(4)(b). The motion judges conclusions can
    be summarized as follows:

·

Mr. Vitu and Express had satisfied him that the proceedings arose
    from an expression relating to a matter of public interest (s. 137.1(3));

·

Able had not satisfied him that there were grounds to believe,
    either that Ables claim had substantial merit, or that Mr. Vitu and Express
    had no valid defence (s. 137.1(4)(a)); and

·

Able had not satisfied him that the public interest in permitting
    its claim to proceed outweighed the public interest in protecting Mr. Vitus
    freedom of expression (s. 137.1 (4)(b)).

[17]

Able
    challenges all aspects of the motion judges ruling. To succeed on the appeal,
    Able must show either that the motion judge was wrong in holding that the posts
    related to a matter of public interest, as required by s. 137.1(3), or, if the
    motion judge was correct in that regard, that he erred in his analysis of the
    application of all three parts of s. 137.1(4). If the motion judge was correct in
    any part of the s. 137.1(4) analysis, Ables claim was properly dismissed.

[18]

As
    I explain below, I would not interfere with the motion judges finding that the
    posts referred to a matter of public interest. Nor would I interfere with his
    finding in relation to the public interest analysis required under s.
    137.1(4)(b). Those two determinations lead to the dismissal of the appeal. I
    need not decide whether the motion judge was correct in his merits analysis
    under s. 137.1(4)(a), though I offer some comments on that analysis below.

D.

ANALYSIS

(i)

Section 137.1(3)  Did the Posts Relate to a Matter of Public Interest?

[19]

The
    respondents (moving parties) had the onus to show that the posts that gave rise
    to Ables defamation claim related to a matter of public interest. The motion
    judge held that the contents of the posts, considered as a whole, related to
    Mr. Fonsecas suitability to sit as a member of Parliament, given his prior
    senior management position with Able. No one disputes that communications
    directed at a persons suitability to hold elected office, particularly when
    made in the middle of an election campaign, are communications relating to a
    matter of public interest.

[20]

Able
    takes issue with the motion judges characterization of the contents of the
    posts. Able contends that the posts are in reality an attack on Ables business
    practices and its reputation. Able submits that the attack is made under the
    cloak of a political debate. The references to Mr. Fonseca are said to be a ruse
    intended to draw the reader to Ables allegedly disreputable business practices
    and poor reputation: the true subject matter of the posts.

[21]

In
    advancing this submission, Able stresses that the posts offer no detail of
    Ables alleged improper business practices. Able argues that the absence of any
    detail indicates that the posts were made maliciously to damage Ables business
    reputation and thereby improve the business prospects of the respondents,
    competitors of Able.

[22]

The
    motion judge correctly articulated the meaning of public interest in s.
    137.1(3): see
1704604 Ontario Ltd. v. Pointes Protection Association
,
    2018 ONCA 685, at paras. 50-66 (released concurrently with these reasons). His
    reasons (at para. 26) lean heavily on
Grant v. Torstar Corp.
, 2009 SCC
    61, [2009] 3 S.C.R. 640, the guiding authority. Ables complaint is that the
    motion judge misapprehended the meaning of the posts. I approach this
    submission by asking whether the posts could reasonably bear the interpretation
    that the motion judge ascribed to them: see
Pointes
, at para. 66.

[23]

The
    motion judges interpretation of the posts was reasonable. The content of the
    posts assumed that the reader had knowledge of Able and its business affairs
    and shared the authors view of Able. The point of the posts was not to inform
    the reader about Ables behaviour, but to inform the reader of the connection
    between Mr. Fonseca, a candidate for Parliament, and Able. The posts asserted
    that Mr. Fonsecas candidacy should be viewed in a negative light because of
    his prior work connection to Able. As the motion judge aptly put it (at para.
    28), the purpose of the post was to denounce
Mr. Fonseca
by reason of
    his
connection
to Able (emphasis in original).

[24]

As
    set out in
Pointes
, at paras. 54
    and 60
, when deciding if a publication relates to a matter of
    public interest, one asks: having regard to the context and taking the
    expression as a whole, what is the expression about? I think the posts could
    reasonably be read as an opinion offered by Mr. Vitu about Mr. Fonsecas suitability
    for public office in light of his prior work connection with Able. Although the
    posts no doubt paint Able in a negative light, they do so in the course of
    making the point that Mr. Fonseca should not be regarded as a suitable person
    to hold public office as a member of Parliament.

(ii)

Section 137.1(4)(a)(i)  Are there Grounds to Believe that Ables Claim
    Has Substantial Merit?

[25]

Able
    had the onus of showing, on the balance of probabilities, that there were
    grounds to believe that its claim had substantial merit. I have examined s.
    137.1(4)(a)(i) at length in
Pointes
, at paras. 73-82. My analysis in
Pointes
reflects the arguments advanced on this appeal. I will not re-summarize the
    arguments made on this appeal, or repeat my analysis in
Pointes
.

[26]

As
    observed by the motion judge (para. 51), in addition to establishing that the
    statements complained of were made by one or more of the defendants, Able had
    to establish three things to make out its claim:

·

The words complained of were defamatory;

·

The words complained of referred to Able; and

·

The words were published to at least one other person.

[27]

I
    agree with the motion judge (para. 52) that, apart from the bald pleading,
    there is nothing in the motion record to connect the posts to the corporate
    respondent, Express. Mr. Vitu denies any connection in his affidavit. In the
    absence of anything in the motion record capable of connecting Express to the
    posts, there could be no grounds to believe that the defamation action
    against Express had any merit, much less substantial merit.

[28]

The
    appellants reliance on
Botiuk v. Toronto Free Press Publications Ltd.
,
    [1995] 3 S.C.R. 3, to support its claim against Express is misplaced. In
Botiuk
,
    some of the libellous documents were mailed out by the companys principal on
    envelopes with the corporate name and address. As slim as that evidentiary
    connection to the company might have been in
Botiuk
, there is no
    evidentiary connection to Express here. The claim against Express was properly
    dismissed.

[29]

Insofar
    as the claim against Mr. Vitu is concerned, it is conceded that he authored the
    posts and that they were communicated to at least one other person. The only
    question was whether the language in the posts was potentially defamatory in
    that it could, when considered in its ordinary meaning by a reasonable and
    fair-minded reader, lower Ables reputation in the eyes of reasonable people:
    see
Guergis v. Novak
, 2013 ONCA 449, 116 O.R. (3d) 280, at paras.
    37-38;
Botiuk
,

at
    para. 62.

[30]

The
    motion judge considered the possible meanings of the posts. He noted the
    absence of evidence to support the interpretation of the posts advanced by
    Able, and the absence of any details about Ables business practices (paras. 63-68).
    He concluded, at para. 69:

The sting of the words used is slight to non-existent for
    those unfamiliar with the allegations of the translators and interpreters
    assembled by Mr. Vitu in his affidavit; for those familiar with them, Mr.
    Vitus words provided no basis for a reasonable persons opinion of Ables
    reputation to be raised or lowered.

[31]

It
    is arguable that the motion judge went beyond the scope of the merits inquiry contemplated
    by s. 137.1(4)(a)(i) and effectively tried the ultimate merits of the
    allegation. Mr. Vitus posts could reasonably be understood by a fair-minded
    person as an assertion that Ables business practices were so disreputable that
    anyone involved in the senior management of Able was thereby rendered unfit for
    public office. That interpretation could injure Ables business image and lower
    its reputation in the eyes of ordinary reasonable members of the community. If
    there was a real chance that a reasonable trier could take that view of the
    posts, Able had met its onus to show its case had substantial merit:
Pointes
,
    at para. 80.

[32]

I
    need not come to any firm conclusion on whether the motion judge erred in his
    application of s. 137.1(4)(a)(i), as I am satisfied that he properly dismissed
    the claim under s. 137.1(4)(b).

(iii)

Section 137.1(4)(a)(ii)  No Valid Defence

[33]

Mr.
    Vitu advanced several defences in his Statement of Defence and the material
    filed on the motion. In considering whether Able had provided grounds to
    believe that Mr. Vitu did not have a valid defence, the motion judge considered
    only the fair comment defence (paras. 76-80). He concluded that Mr. Vitu had
    established that the defence was a serious one with a reasonable chance of
    success (para. 80). Consequently, Able had failed to meet its burden of
    satisfying the motion judge that there were reasonable grounds to believe that
    Mr. Vitu had no valid defence.

[34]

As
    explained in
Pointes
, at para. 84, a motion judge is required to
    determine whether a trier could reasonably conclude, based on the motion
    record, that Mr. Vitu had no valid  that is, successful  defence to the
    alleged defamatory statements. The motion judges reference to the fair comment
    defence as having a reasonable chance of success seems tantamount to a
    finding that Able failed to show that there were reasonable grounds to believe
    that Mr. Vitu did not have a valid defence. Once again, I need not come to any
    firm conclusion on that question, as I am satisfied that the claim was properly
    dismissed under s. 137.1(4)(b).

[35]

Before
    leaving s. 137.1(4)(a)(ii), I will, however, address one submission made by the
    appellant. I agree with the contention that the motion judges analysis of the
    fair comment defence is flawed in one respect. To succeed on the defence, a
    defendant must provide the factual basis upon which the allegedly defamatory
    opinion is based. Mr. Vitus posts provide no insight  express, implied, or by
    reference to other material  into the factual basis upon which his negative
    opinion of Ables business reputation is based. Absent a factual foundation,
    fair comment cannot succeed as a defence: see
WIC Radio Ltd. v. Simpson
,
    2008 SCC 40, [2008] 2 S.C.R. 420, at para. 31; Raymond E. Brown,
Brown on
    Defamation
:
Canada,
    United Kingdom, Australia, New Zealand, United States
, loose-leaf, 2d ed.,
    vol. 5 (Toronto: Carswell, 1999), at pp. 15-54 to 15-56;
Rogacki v. Belz
(2004), 243 D.L.R. (4th) 585, at p. 593 (Ont. C.A.).

[36]

The
    motion judge recognized that the posts contained no factual basis for Mr.
    Vitus opinion. He held, however, that the facts on which the opinion was based
    would be well-known to the audience to whom the blog was directed (para. 78). With
    respect, there is no evidence that the blog was directed to any particular
    group, or that persons reading the blog would necessarily know any of the facts
    upon which Mr. Vitus opinion may have been based. Absent any evidence of the
    basis upon which Mr. Vitu advanced his negative opinion of Ables business
    reputation, there were no reasonable grounds to believe that he had a valid
    fair comment defence to the allegations. That was, of course, not the only
    defence advanced.

(iv)

Section 137.1(4)(b)  The Balancing of Competing Interests

[37]

Section
    137.1(4)(b) provides:

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



(b) the harm likely to be or have been suffered by the
    responding party [plaintiff] as a result of the moving partys [defendants]
    expression is sufficiently serious that the public interest in permitting the
    proceeding to continue outweighs the public interest in protecting that
    expression.

[38]

Section
    137.1(4)(b) assumes that some cases that can survive the merits inquiry under
    s. 137.1(4)(a) should nevertheless be dismissed prior to trial. Section
    137.1(4)(b) requires a fact-specific weighing of two different manifestations
    of the public interest. This court has set out its interpretation of the
    provision in
Pointes
,
at paras.
    85-101
.

[39]

The
    motion judges analysis of s. 137.1(4)(b) begins with a detailed examination of
    the factors relevant to the harm suffered or likely to be suffered by Able as
    a result of Mr. Vitus posts. The motion judge referred to several factors that
    he took into account in assessing the harm suffered or likely to be suffered by
    Able. The factors included:

·

the posts were on the site for about ten days and never
    reappeared;

·

there was no evidence that more than a handful of people saw the posts.
    The evidence indicates that only two persons responded to Mr. Vitus first
    post;

·

the posts said nothing by way of detail concerning Ables
    business practices and would mean little to someone not familiar with Able and
    its business practices;

·

Mr. Vitus posts did not incorporate by reference the many, much
    more detailed and sometimes vitriolic, references to Ables business practices
    found on various websites;

·

there was no evidence connecting Mr. Vitus posts to the other
    posts describing Ables business practices;

·

given the nature and quantity of complaints that were in the
    public realm, Mr. Vitus comments had little, if any, capacity to cause harm to
    Ables reputation; and

·

the affidavit filed by Ables vice-president listed certain
    clients whose business she said had been lost, and claimed an overall
    percentage drop in Ables revenues. However, the affidavit offered no details
    of any kind to support those claims nor, more importantly, to connect any of
    the alleged losses to Mr. Vitus two posts.

[40]

The
    factors considered by the motion judge were all relevant to his assessment of
    the harm suffered or likely to be suffered by Able. It was for the motion judge
    to weigh those factors. His conclusions that the harm was minimal and that the
    public interest in permitting the claim to proceed to vindicate that harm was
    slight were reasonable on the evidence.

[41]

The
    motion judge next considered the public interest in protecting Mr. Vitus posts.
    Three factors suggested a high public interest.

[42]

First,
    the subject matter of the posts, a persons suitability for a high elected
    office, was a topic of great importance to the public. Second, the posts did
    not repeat the negative and vitriolic comments made by others about Able, but
    instead focused on Mr. Fonsecas suitability for public office by virtue of his
    previous connection to Able. The point was not to vilify Able, but to draw the
    attention of the voting public to a fact that, in Mr. Vitus opinion, provided reason
    to not vote for Mr. Fonseca.

[43]

Lastly,
    the motion judge observed that this was a situation in which Ables actions had
    actually silenced Mr. Vitu. Because of Ables litigation threats, Mr. Vitu was
    effectively denied his right to fully participate in the political process. The
    motion judge recognized the significant public interest in protecting against
    that consequence.

[44]

The
    factors considered by the motion judge were relevant to the assessment of the weight
    to be given to the public interest in protecting Mr. Vitus expression. Those
    factors were reasonably capable of making out a compelling case in favour of
    protecting Mr. Vitus freedom of expression.

[45]

For
    the reasons set out above, I would dismiss the main appeal.

E.

The application for leave to appeal costs

[46]

In
    awarding costs to the respondents on a full indemnity basis, the motion judge
    applied s. 137.1(7). That section provides that a successful defendant should
    have its costs of the motion and the proceedings on a full indemnity basis,
    unless the motion judge determines that such an award is not appropriate in
    the circumstances.

[47]

The
    motion judge was alive to both the full indemnity starting point and the motion
    judges power to make a different order (paras. 105-108). I see no reason why
    this court should not defer to his determination that the presumption in
    favour of costs on a full indemnity basis should prevail.

[48]

The
    appellants submissions in relation to costs target quantum more than anything
    else. Nothing in those submissions offers any basis upon which this court
    should review that assessment.

F.

conclusion

[49]

I
    would dismiss the appeal and refuse leave to appeal costs.

[50]

The
    parties may make written submissions of less than five pages in respect of the
    costs of the appeal. The respondents submissions should be served and filed
    within 30 days of the release of these reasons. The appellants submissions should
    be served and filed within 14 days of receipt of the respondents submissions.

Released: DD  AUG 30 2018

Doherty J.A.

I agree D.M. Brown
    J.A.

I agree Grant Huscroft
    J.A.


