When Mohamad Fakih opened his restaurant’s doors to a Liberal Party fundraiser last July, some uninvited guests showed up: Kevin Johnston and Ranendra “Ron” Banerjee, two men who have become fixtures at anti-Islam rallies across the GTA. In videos posted online, they stood outside Fakih’s restaurant Paramount Fine Foods and suggested it was a “nefarious” business that only served customers who are “jihadist” or “raped your wife at least a few times.”

Fakih sued for defamation; Johnston and Banerjee wrote in their defence statements that they were exercising their freedom of expression and raising issues of public interest — namely, their objection to the federal government’s $10.5 million settlement paid to Guantanamo Bay detainee Omar Khadr.

But before the case has even gone to trial, a Superior Court of Justice judge has already delivered a preliminary victory for Fakih, ruling Banerjee’s videotaped comments “involve hallmarks of hate” and do not relate to a matter of public interest.

This also means his statements are unprotected by a 2015 Ontario law designed to stop nuisance lawsuits aimed at silencing free expression over matters of public interest. Banerjee invoked the law to try to quash the suit but the judge ruled that allowing him to justify his comments by claiming public interest would be “trivializing” the law’s objectives.

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Fakih’s lawyers called the decision a “precedential” step that sharpens the line between free speech and hate speech.

“We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones. I acknowledge that,” Justice Shaun Nakatsuru wrote in his ruling, dated June 20, 2018. “But we also live in a country where alleged hateful and defamatory expressions can appropriately be litigated in the judicial system.”

The ruling only dismissed Banerjee’s motion to throw out the lawsuit, meaning it can now proceed to trial. (Johnston is self-represented and was not a party to the motion). When reached Friday, Banerjee’s lawyer Lorne Honickman declined to comment but said he and his client were considering their next steps, including whether or not to appeal.

Both Banerjee and Johnston have denied the allegations against them in their statements of defence. Banerjee said he has never promoted hatred against any group or people; Johnston — who is also currently facing hate crime charges — said any allegation that he “ever promoted hate is a fabrication.” With respect to his statements that Paramount Fine Foods only served people who are “jihadist” or raped their wives, Banerjee said the comments were “satirical”and published by Johnston, not him.

But in his ruling, Nakatsuru said Banerjee’s comments “go beyond offensive or hurtful expression.”

Fakih writes in his statement of claim that their “false and maliciously-published defamatory words” targeted him as a Muslim and caused harm to his business and reputation as a community leader. Fakih’s restaurant chain has nearly 50 locations and the Lebanese-Canadian businessman has drawn headlines for his philanthropy, including his support of Syrian refugees and offering to pay for the funerals of the men killed in the Quebec City mosque attack.

Johnston is a self-styled journalist who runs a website called Freedom Report and is vocal about his negative views of Islam, once opposing the construction of a mosque and offering a $1,000 reward for videos that capture Muslim students praying on Fridays. According to Fakih’s statement of claim, Johnston’s statements have characterized Muslims as “dirty” or “terrorist scumbags” and he has publicly encouraged people to “buy knives and learn how to use them.”

Banerjee is affiliated with groups like Rise Canada and Canadian Hindu Advocacy, which are frequently connected to anti-Islam commentary and protests. His public statements have referred to Muslims as “liars” and “terrorists,” and a tweet posted on his Twitter account once stated that “Muslims are rotten from the time they drop from the womb,” according to Fakih’s statement of claim.

On July 20, 2017, Johnston and Banerjee went to the Mississauga location of Paramount Fine Foods, where there was a planned protest of Prime Minister Justin Trudeau and the federal government’s payout to Khadr.

Fakih said he didn’t know the two men who appeared outside his restaurant.

“I don’t know these people, I’ve never met them, and all of a sudden they’re attacking me, my family, my character and my business,” he said in an interview. “They’re saying in the video that you have to have raped your wife and somebody else’s wife to access (my) restaurant. That’s crazy.”

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Fakih said he was compelled to sue because “I have to stand up for what’s right.” He said he was gratified by Nakatsura’s ruling allowing his lawsuit to go forward. “I’ll be honest, I got very emotional when I saw what the judge ruled because he actually said how I feel,” he said. “I’m being bullied in front of the eyes of all Canadians, and it hurts.”

His lawyers say that while hate speech has been well defined through the Criminal Code and human rights legislation, this ruling provides legal clarity in the civil courts, signalling that people who are targeted by defamatory hate speech can have recourse through the courts — a particularly important message at a time minority communities are feeling increasingly under siege by hatemongers who can easily and quickly disseminate their views over the Internet.

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“I think what this message does is send a message to every minority in the Canadian mosaic that hate speech, which is defamatory of them, is the kind of speech that the courts will address through the law of defamation,” said Fahad Siddiqui, Fakih’s lawyer.

The ruling also makes clear that there is no public interest “in speaking hatefully about anyone,” according to Fakih’s lead counsel, Jonathan Lisus. “The court makes it clear that you cannot put defamatory speech beyond the reach of the court by embedding it within a larger public interest narrative,” he said.

Lawyer Mark Freiman, who was not involved with the case, said the ruling raises the profile of defamation as a “potential weapon” against hate speech. He commends the ruling as an “outstanding judgment” for which “we should be very grateful.”

“This is a very important case, and people will take notice and should take notice,” said Freiman, a former deputy attorney general of Ontario who once prosecuted a case against Holocaust-denier Ernst Zundel. “People will react to this and say, ‘Here we go again, these people are going to be punished for criticizing Muslims. But there is a difference between criticism and hate.”