Lascaris v. B’nai Brith Canada
2019 ONCA 163
Court of Appeal for Ontario, Doherty, Pardu and Nordheimer JJ.A.
March 4, 2019
Civil procedure — Summary dismissal of action — Plaintiff being
lawyer and human rights advocate who expressed sympathy for father
of alleged Palestinian terrorist after father’s family home was demolished
by Israeli authorities — Defendant accusing plaintiff of supporting
terrorists — Plaintiff bringing defamation action — Motion judge erring
in dismissing action under s. 137.1 of Courts of Justice Act on basis that
plaintiff had failed to demonstrate that no valid defence existed —
Plaintiff not required to show that defence had no hope of success —
Plaintiff meeting his burden under s. 137.1(4)(a)( ii) to show that reasonable trier might conclude that none of defences advanced by defendant
would succeed — Balancing exercise under s. 137.1(4)(b) clearly
favouring plaintiff — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1.
The plaintiff was a lawyer and human rights advocate. He met with the father of
an alleged Palestinian terrorist who told him that his son had been killed extrajudicially. The plaintiff reported that claim in social media posts and expressed sympathy
for the father, whose family home had been demolished by Israeli authorities. He
wrote that whatever the son may or may not have done, the Israeli government’s
treatment of the father was an outrage. The defendant published articles claiming
that the plaintiff supported terrorists. The plaintiff sued for damages for defamation. In its statement of defence, the defendant pleaded justification, qualified
privilege and fair comment. The defendant moved successfully under s. 137.1 of
the Courts of Justice Act for summary dismissal of the action on the basis that it
was a SLAPP action. The motion judge found that there was no doubt that the
defendant’s expressions related to matters of public interest. She was prepared to
assume that the plaintiff’s claim had substantial merit. Turning to s. 137.1(4)(a)( ii)
of the CJA, the motion judge stated that the plaintiff was required to demonstrate
that none of the defences raised by the defendant “could possibly succeed”. She
found that the plaintiff faced an “insurmountable hurdle” with respect to the
defence of fair comment, the constituent elements of which were clearly made out.
The plaintiff appealed.
Held, the appeal should be allowed.
This action had none of the recognized indicia of a SLAPP lawsuit. The plaintiff
had no history of using litigation or the threat of litigation to silence critics. If
there was any financial or power imbalance, it appeared to be in favour of the
defendant. There was no evidence that the plaintiff had a punitive or retributory
purpose in bringing the action. Section 137.1 operates as a screening device. It is
not to be used as a surrogate for summary judgment. The burden on a plaintiff
under s. 137.1(4)(a)( ii) is not to show that a given defence has no hope of success.
Rather, all that the plaintiff need show is that it is possible that the defence would
not succeed. A reasonable trier could conclude in this case that the defence of fair
comment would not succeed. It would be open to a trier to conclude that the
statements that the plaintiff supported terrorists were uttered as statements of
fact, not as statements of opinion. Even if the statements were 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. A trier might also conclude that
the defendant’s repetition of the statements after the plaintiff expressly disavowed