From: Jason W Neyers <jneyers@uwo.ca>
To: obligations@uwo.ca
Date: 08/03/2017 16:28:30 UTC
Subject: ODG: Defamation, Fair Comment

Dear Colleagues:

 

Those of you interested in the law of Defamation will be interested in Awan v. Levant 2016 ONCA 970: http://www.canlii.org/en/on/onca/doc/2016/2016onca970/2016onca970.html.  The case involved statements made by Ezra Levant (a provocative right wing journalist) about a Muslim law student (the plaintiff). The student was involved with a highly controversial human rights complaint against Maclean’s magazine (one of the most prominent national magazines in Canada) for publishing a cover story entitled “The future belongs to Islam” by Mark Stein.  In blogging about the proceedings in front of the human rights commission, Levant had stated that the plaintiff was a liar (since his testimony about his interactions with Maclean’s was allegedly different than the story he had provided to the newspapers) and an anti-Semite (since the plaintiff was associated with a man, Dr. Elmasry, who had made public statements claiming that all adult Israelis are legitimate targets of violence).

 

The court rejected Levant’s defence of fair comment. In relation to the liar statement, the court showed deference to the trial judge’s determination that this was a statement of fact rather than of opinion:

 

In my view, based on these principles, calling someone a liar when discussing a matter of public interest or discourse would more likely be found to be a comment rather than a fact. However, in this case it was open to the trial judge to conclude that the appellant’s characterization of the respondent as a liar was stated as a matter of fact, not comment. She properly instructed herself that the distinction between what is fact and what is comment must be determined from the perspective of a “reasonable reader” (WIC, at para. 27). She was also mindful that context is important to the analysis. She concluded that the appellant’s description of the respondent as a liar was stated as a fact in the context of a report of a hearing, and that it was not recognizable as comment. Nor did the appellant add words such as “in my view” to suggest that the words were intended as comment. I see no basis for this court to interfere with the trial judge’s conclusion.

 

In relation to the anti-Semite statement, the court again showed deference to the trial judge’s determination that Levant was actuated by malice:

 

  The appellant challenges the trial judge’s conclusion that he was motivated by malice against the respondent. First, he says that it was an error for the trial judge to transpose any ill-will he might have borne against Dr. Elmasry to his feelings regarding the respondent, whom the appellant did not know. … Second, the trial judge ignored the appellant’s testimony that his purpose or motive in publishing his blog was to give his unique perspective on human rights commissions. This was substantiated by his history of criticism of them. Third, the trial judge erred by finding that his negligence in failing to correct the blog posts amounted to malice when he had an honest belief in what he said.

 

The force of the appellant’s submission is that the trial judge was mistaken when she concluded that he was motivated by malice. However, this was a finding of fact. … Although the appellant may believe that the trial judge misunderstood his motives, her findings were based on her view of the record. There is no basis to interfere.

 

My gut reaction is that the trial judge got things wrong (does it seem plausible to say that the Levant’s primary purpose was to harm the defendant given his longstanding antipathy to human rights commissions?) and that the Court of Appeal was perhaps too deferential, but not being an expert in Defamation I am happy to be disabused of these notions.

 

Sincerely,

 

esig-law

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)