Levant v. Day
2019 ONCA 244
Court of Appeal for Ontario, Doherty, Pardu and Nordheimer JJ.A.
March 28, 2019
Civil procedure — Costs — Summary dismissal motion — Defendant’s
delay in bringing motion for summary dismissal of action under anti-SLAPP provisions of Courts of Justice Act justifying award of costs in
favour of successful plaintiff despite s. 137.1(8) of Courts of Justice Act
— Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(8).
Civil procedure — Summary dismissal — Defendant posting series of
tweets alleging that plaintiff’s campaign to raise money for victims of
Fort McMurray forest fires was fraudulent — Plaintiff suing defendant
for defamation — Motion judge declining to dismiss action summarily
under anti-SLAPP provisions of Courts of Justice Act — Motion judge
erring in finding that tweets did not relate to matter of public interest
— Plaintiff demonstrating that trier of fact could reasonably conclude
that defendant had no defence to action — Public interest in permitting
action to continue to trial outweighing public interest in protecting
impugned expression — Courts of Justice Act, R.S.O. 1990, c. C.43.
The defendant posted a series of tweets alleging that the plaintiff’s campaign to
raise money for victims of the Fort McMurray forest fires was a scam designed
to enrich the plaintiff and that the plaintiff had falsely promised that donors would
get income tax receipts. He continued to make those assertions after the Red Cross
confirmed that donors would be provided with tax receipts. The plaintiff sued the
defendant for damages for defamation. The defendant moved for summary dismissal of the action under the anti-SLAPP provisions of the Courts of Justice Act. The
motion was dismissed. The defendant appealed and sought leave to appeal the
order for costs against him.
Held, the appeal from the dismissal of the motion should be dismissed; the costs
appeal should be allowed in part.
The motion judge erred in holding that the tweets did not relate to a matter of
public interest because they were, in pith and substance, direct personal attacks on
the plaintiff. The concept of “public interest” does not take into account the merits or
manner of the expression or the motive of the author. The tweets, when taken as
a whole and in context, indisputably related to a matter of public interest.
The motion judge did not err in finding that the plaintiff had established that there
were grounds to believe that the defendant had no valid defences. The plaintiff had
advanced the defences of fair comment and failure to provide notice pursuant to s. 5(1)
of the Libel and Slander Act, R.S.O. 1990, c. L.12. A trier of fact could reasonably conclude that some of the defamatory statements amounted to factual assertions which
were not recognizable as comment and that the statements were made with malice, so
that the defence of fair comment was not made out. A trier of fact could also reasonably conclude that s. 5(1) of the Libel and Slander Act does not apply to Twitter posts.
The motion judge did not err in finding that the public interest in permitting
the proceeding to continue to trial outweighed the public interest in protecting the
impugned expression. It could not be said that any damages awarded to the plaintiff would necessarily be nominal, or that he had suffered only insignificant