Ontario Court Of Appeal Summaries (March 4 – 8, 2019)

Good evening.

There were five substantive civil decisions released by the Court of Appeal for Ontario this week. In two of them, the Court continued to provide guidance on the "valid defence" analysis to be undertaken pursuant to the Anti-SLAPP provisions of section 137.1 of the Courts of Justice Act.

In Lascaris v B'nai Brith Canada, 2019 ONCA 163, the Court clarified that on a motion to dismiss under s. 137.1 of the Courts of Justice Act, the responding party's burden under s. 137.1(4)(a)(ii) is to show that it is possible that a defence would not succeed as opposed to showing that a defence has no hope of success. In applying this standard, the Court reversed the motion judge's dismissal of the defamation action.

In Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166, the Court held that Bondfield (which, as an aside, is now under CCAA protection) was only required to show that a reasonable trier of fact could conclude that the Globe did not have a valid defence. The Court held that Bondfield would meet that onus if it showed that a reasonable trier of fact could reject all of the various defences put in play by the Globe.

In Endean v St Joseph's General Hospital, 2019 ONCA 181, the Court reviewed the nature of Pierringer Agreements and Orders and confirmed that, in the context of a Pierringer Order, the Court's decision in Taylor v Canada (Health), 2009 ONCA 487, does not stand for the general proposition that fault in a negligence action may be apportioned to non-parties. In a Pierringer settlement, the non-settling defendant is only entitled to a reduction of the damages by the amount of fault apportioned to settling defendants, not non-parties. The Court also confirmed that the two-year limitation period in the Public Hospitals Act is not subject to a discoverability principle.

Other topics covered this week included insurance in the MVA context, nuisance and intrusion upon seclusion.

Finally, my partner, Lea Nebel, and I invite you to our third annual Top Appeals CLE, which has been rescheduled and will now be taking place at the OBA, 20 Toronto Street, Toronto, on Thursday, May 9, 2019. It is a three hour dinner program beginning at 5 PM, which will also be available by live webcast for those who cannot attend in person.

Our first set of panelists, David Thompson and Katherine Di Tomaso, will discuss Gillham v Lake of Bays and Mega International v Yung, and other decisions dealing with discoverability, appropriate means, and discoverability as it relates to claims for contribution and indemnity.

Tim Danson, Mark Wiffen and Peter Downard will discuss Platnick v Bent, Pointes Protection Association and the "Anti-SLAPP Sextet".

Last, but certainly not least, a panel led by Glenn Chu of the City of Toronto will discuss the high-profile, real-time, high-stakes constitutional litigation that was the City of Toronto v Attorney-General (reduction of wards from 47 to 25).

The full program agenda can be found here. Please join us for what promises to be a very interesting evening.

Wishing everyone a pleasant weekend and March break.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email

CIVIL DECISIONS

Lascaris v B'nai Brith Canada, 2019 ONCA 163

[Doherty, Pardu and Nordheimer JJ.A.]

Counsel:

13. Henein, A. Smith and M. Strycmar-Bodnar for the appellant

4. Elmaleh and G. Caracas, for the respondent

   Keywords: Torts, Defamation, Libel, Defences, Fair Comment, Justification, Qualified Privilege, Civil Procedure, Anti-SLAPP, Courts of Justice Act, RSO 1990, c C.43, ss. 137.1(4), Libel and Slander Act, RSO 1990, c L.12, s. 5(1), WIC Radio Ltd v Simpson, 2008 SCC 40, Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130

   Facts:

   The appellant appealed from the order of the motion judge that dismissed his action pursuant to s. 137.1 of the Courts of Justice Act, RSO 1990, c C.43 on the basis that it was a Strategic Litigation against Public Participation ("SLAPP") action.

   The appellant was the Justice Critic in the Green Party of Canada's shadow cabinet who advanced a resolution calling on the Green Party to support the use of peaceful boycott, divestment and sanctions ("BDS") to bring an end to Israel's occupation of Palestinian territories. The respondent, an independent, charitable organization involved in human rights and advocacy initiatives for the Canadian Jewish community then began a campaign against the appellant, the Green Party, and others related to the resolution, stating that the resolution was anti-Semitic. The respondent published an article entitled "Green Party Justice Critic Advocates on Behalf of Terrorists". The appellant later discovered another publication on the respondent's Twitter account, stating: "[the appellant] resorts to supporting #terrorists in his desperation to delegitimize the State of #Israel". The tweet contained a link to the respondent's article.

   After the tweet, the appellant served notice upon the respondent regarding the defamatory publications under s. 5(1) of the Libel and Slander Act, RSO 1990, c L.12 and commenced a libel action. The respondent defended the claim, and brought a motion to dismiss the action under the Anti-SLAPP provisions of the Courts of Justice Act in s. 137.1. The motion judge granted the motion and dismissed the action. The motion judge first found that there was no doubt that the respondent's expressions related to matters of public interest, and that she was prepared to assume that the appellant's claim had substantial merit. With respect to the requirement that the appellant prove that the respondent had no valid defence in the pleading under s. 137.1(4)(a)(ii), the motion judge stated that this required the appellant to demonstrate that none of the defences raised by the respondent "could possibly succeed". The motion judge found that the appellant faced an "insurmountable hurdle" on this test with respect to the defence of fair comment in applying the test articulated by the Supreme Court of Canada in WIC Radio Ltd v Simpson, 2008 SCC 40. Consequently, she did not deal with the respondent's 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).

   Issue:

   (1) Did the motion judge err in granting the motion and dismissing the appellant's action?

   Holding:

   Appeal allowed.

   Reasoning:

   (1) Yes. The motion judge erred in finding that the appellant could not satisfy s. 137.1(4)(a)(ii). The Court stated that the burden under this provision is not, as applied by the motion judge, to show that a defence has no hope of success, but rather it is to show that it is a possible that a defence would not succeed. A reasonable trier of fact could conclude that the defence of fair comment would not succeed in this case because it would be open to a trier to conclude that the statements that the appellant supported terrorists were uttered as statements of fact, or that a person could not honestly express that opinion based on the proved facts.

   The motion judge did not deal with the other defences raised because of her conclusion on the defence of fair comment, so the Court of Appeal did so. The Court first found that, for the reasons considered with respect to the defence of fair comment, it would be open to a trier to find it was possible that the defence of justification would not succeed. The Court then considered the defence of qualified privilege, stating that in order for this 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 SCR 1130 ("Hill"), at para. 143. The Court found that it was unclear what duty the respondent could point to in order to qualify its statements. Based on this analysis, the court found that the appellant had met his burden under s. 137.1(4)(a)(ii) that a reasonable trier might conclude that none of the defences advanced would succeed.

   The Court then applied the balancing requirement under s. 137.1(4)(b) because the motion judge did not do so. The Court stated that this balancing looks at whether the harm likely to be or have been suffered by the responding party as a result of the moving party's expression was sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. The Court found that the balance clearly favoured the appellant because if the appellant's action proceeded and was ultimately successful, the damages to which the appellant would be entitled could be significant. The Court stated this was the case because accusing any person of supporting terrorists is about as serious and damaging an allegation as can be made in these times. This reality was sufficient to establish the seriousness of the harm to the appellant, and to rebut the respondent's submission that the appellant failed to lead any evidence to show damage to his reputation arising from the impugned statements. Furthermore, the appellant was a lawyer and his reputation was central to his ability to carry out his profession, as per Hill.

   Bondfield Construction Company Limited v The Globe and Mail Inc, 2019 ONCA 166

   [Doherty, Pardu and Nordheimer JJ.A.]

   Counsel:

11. O'Brien and K. Sachar, for the appellant

3. Martins and A. MacDonald, for the respondents

   Keywords: Torts, Defamation, Libel, Defences, Fair Comment, Civil Procedure, Anti-SLAPP, Courts of Justice Act, RSO 1990, c C.4, s. 137.1, 1704604 Ontario Ltd v Pointes Protection Association, 2018 ONCA 685, Grant v Torstar Corp, 2009 SCC 61

   Facts:

   The respondents published a series of articles between September 2015 and February 2016 about the appellant's successful bid on a $300 million contract to build a new critical care facility at St. Michael's Hospital in Toronto ("SMH"). The articles addressed the connection between...