[Doherty, Pardu and Nordheimer JJ.A.]

Colin Baxter and Julie Mouris, for the appellants

Ryder Gilliland and Amanda McInnis, for the respondents

Keywords: Torts, Defamation, Libel, Defences, Justification, Responsible Communication, Qualified Privilege, Fair Comments, Public Interest, Reputation, Financial Loss, Anti-SLAPP, Courts of Justice Act, RSO 1990, c C.43, s 137.1(4)(b), Montour et al v Beacon Publishing Inc et al, 2017 ONSC 4735, Grant v Torstar Corp, 2009 SCC 61, 1704604 Ontario Ltd v Pointes Protection Association, 2018 ONCA 685, Walker et al v CFTO Ltd et al (1987), 59 OR (2d) 104 (CA), Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130, Lachaux v Independent Print Ltd, [2017] EWCA Civ 1334

The appellant published an article in which the overall thrust was that contraband tobacco is associated with organized crime, smuggling and terrorism. This theme was reinforced by multiple, prominent references connecting terrorism to tobacco smuggling and linking criminal activity to contraband tobacco. Beside a passage which linked crime to cigarettes manufactured in Ontario was a photograph of a brand of cigarettes manufactured by the respondent corporation. The publication went on to connect the respondent corporation to smuggled goods in Costa Rica and in Mexico. Further, it went on to connect both respondents to black market cannabis cultivation.

The publication is distributed to members of Parliament and Cabinet, provincial legislatures and industry executives in the fields of national and border security, policing, infrastructure security, IT security, emergency preparedness and tax and trade policy. In this case, this particular article was also distributed to local farmers who supplied the respondent corporation with raw tobacco. The motion judge dismissed the appellant’s motion to summarily dismiss the action. The motion judge, who was without the benefit of the Court’s Anti-SLAPP sextet, concluded that the vast majority of the issues dealt with in the publication were matters of public interest, particularly the issues surrounding contraband tobacco.

The motion judge also found that there was no doubt that the words complained of were published and named the respondents. He indicated that the references to the respondents smuggling contraband tobacco and being involved with organized crime were clearly defamatory. He concluded that the claim had substantial merit. The motion judge dealt with four defences raised by the appellants and concluded that none of the defences were made out on the evidence.

The motion judge rejected the justification defence because the appellants pleaded only a broad generalization that the impugned statements “were true in substance and in fact as of the date of publication” and because the appellants relied on other publications which had expressed what they argued were similar views. The motion judge rejected the responsible communication defence because the appellant’s due diligence to verify the article’s allegations was non-existent. He noted that the appellant failed to verify the facts as reported.

The motion judge rejected the qualified-privilege defence because such defence is not generally available to broadly distributed publications and because the appellants were under no duty to communicate the information. He rejected the fair-comment defence because such defence applies to statements of opinion, but not fact.

(1) Did the motion judge fail to balance the public interest in protecting the expression in the appellants’ article about contraband tobacco against the harm suffered by the respondents?

(2) Did the motion judge err in concluding that presumed damages could amount to harm suffered by the respondents, where there was no evidence of financial loss, nor any specific evidence that the respondents’ reputation was diminished on account of the appellants’ actions?

(3) Did the motion judge err in concluding that the defence of justification was insufficient to bar continuation of the action?

Appeal dismissed.

(1) No. While the motion judge found that the subject of contraband tobacco was a matter of general importance, he observed that the statements about the respondents were highly defamatory, uncorroborated allegations published with non-existent due diligence and that there was no public interest in receiving such allegations. He also found that the allegations of criminality were so serious that they would likely damage anyone’s reputation and standing in their community and that the respondents had shown credible and compelling evidence of harm because, inter alia, the publication was targeted at the respondents’ suppliers and it remained available on the Internet.

(2) No, the motion judge did not err in considering presumed damages to reputation flowing from serious allegations of considerable criminality. A serious libel does not always manifest itself in financial losses. It is often difficult for a plaintiff to link reputational harm to financial loss, or to lead testimonial evidence of the actual impact of a particular defamation upon reputation. Sometimes a false statement may reasonably be supposed to have such a serious impact upon reputation that harm may be presumed and weighed in the balancing of public interest and harm. Allegations meant to be taken seriously of significant criminal activity might fall within this category.

In this case, the impugned publication connected the respondents to organized crime, terrorism and tobacco smuggling. The presumed harm resulting from such serious statements may be weighed in the balance of public interest and harm even where there is no evidence of pecuniary loss, or direct evidence about damage to reputation. A trier of fact might conclude that a plaintiff suffered significant harm, even in the absence of direct evidence of pecuniary loss.

In the context of the Anti-SLAPP motion, no differentiation should be made between the corporate and individual respondents. The individual respondent is so closely identified with the respondent corporation he founded, that a trier of fact could conclude that defamatory statements about the corporation tarnish him to the same degree.

(3) No. In this case, the appellants’ statements linking the respondents to criminal activity were based on statements attributed to others, which were of unknown value and which did not obviously support the appellants’ conclusions. For example, the translation of the Mexican newspaper relied upon by the appellants is of unknown quality and the article could be read as suggesting that the respondent corporation was not associated with contraband at the time. There was no evidence of any domestic prosecution of the respondents from a violation of Ontarian and Canadian regulations controlling the sale of tobacco products. As such, a reasonable trier could conclude that the appellants did not have a valid defence of justification.