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Defamation law reform: the good, the bad and the missed opportunity

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By Paul Russell, LegalMatters Staff • Proposals to update Ontario’s defamation laws to reflect social and technological changes in communications brought about by the internet are mostly sound, says Toronto lawyer Howard Winkler.

In March, the Law Commission of Ontario (LCO) released its final report titled Defamation Law in the Internet Age, with its terms of reference noting, “Ontario courts and, indeed, courts throughout the world, have been gradually adapting defamation law principles to contemporary circumstances. However, legislative reform in Ontario has been limited and Ontario’s Libel and Slander Act is now significantly outdated.”

The Attorney General’s office has asked Winkler, principal and founder of Winkler Law, among others to provide feedback about the proposals and he says they will for the most part get his endorsement.

“This is a thorough, well-written report, that takes a measured approach to reform the laws of defamation, without recommending change just for change’s sake,” Winkler tells LegalMattersCanada.ca. “Of the 39 recommendations, 27 will really have little substantive effect or practical consequence, as they simply tweak existing principles. In some respects, it’s an affirmation and continuation of a combination of the existing statutory and common law.”

Three significant recommendations

Three of the remaining 12 recommendations are particularly significant, he says, the first being recommendation 38, outlining how defamatory material could be removed from the internet in an expedient manner.

“If someone believes material on a website is defamatory of them (or their business), they may deliver a notice of complaint,” Winkler says. “The website, referred to here as the intermediary, then would be obligated to send, or attempt to send, the complaint to the person who posted the content. The publisher then has two days to respond.”

“If the publisher fails to respond, the intermediary must take down the material complained of. Since many defamatory comments about businesses or individuals are posted anonymously by people deliberately hiding their true identities (and motivations) by using terminals in places such as public libraries or coffee shops, this proposal serves as an expedient way of ridding the internet of speech of little value.”

If the publisher responds opposing the take down of the material the content remains on the website, he says, as the “intermediary does not get into the business of assessing the complaint or the response.”

In addition, if the publisher is anonymous, “anonymity is protected,” Winkler says. “The injured party is then no further ahead.”

An overly restrictive definition of ‘publisher’

Which leads to recommendations 35 and 36 that he takes issue with, which deal with intermediaries and their apparent immunity from liability for defamation.

According to the report, “The new Defamation Act should provide that a defamation action may only be brought against a publisher of the expression complained of … The new Defamation Act should provide that a publisher of a defamatory expression should not be liable for republication of the expression by a third party unless the publisher intended the republication.” A publisher is then defined “to require an intentional act of communicating a specific expression.”

“I’m concerned that the LCO is rejecting the notion of liability for online platforms such as Google when they refuse to take down defamatory material after being put on notice of it,” Winkler says.

He gives the common example of someone searching for a business name online and finding not only the company website, but also comments about the firm by other users, “since Google in its business listing, which appears on the top right of a search whether one wants it or not, encourages the posting of such reviews.”

“If there is a defamatory post about you or your business and you give notice, Google will leave it up if the person who originally published the post responds to the notice. Then the only choice you have, if recommendations 35 and 36 are adopted, is to sue the original publisher,” Winkler says.

No remedy for those defamed

The problem here is that the posting may be demonstrably false, the publisher may have responded to the complaint under recommendation 38, the publisher may have posted the message anonymously and not be traceable or out of the reach of the jurisdiction of Canadian courts, he says. This will effectively leave a wrongfully injured person with no practical remedy.

Winkler believes that under circumstances such as these, the website should not be able to escape liability for the content if it has been notified that the material is defamatory and it chooses to leave it up for the world to see.

He believes the commission should have embraced the approach taken in Australia, where courts have consistently ruled that if an online platform is put on notice of defamatory content and it chooses not to take it down, they become secondary publishers and become jointly and separately liable for it, along with the original publisher.

In 2017, the Supreme Court of South Australia ruled that website operators were liable for defamatory content on their platforms, but only after they were put on notice about it, and if they then failed to take it down.

“The ignorant should not be allowed to wreck reputations with impunity,” the 2017 judgment reads. “Once knowledge, actual or constructive, of the presence of the words is proved, the secondary publisher who persists in dissemination of the material carries the risk … which may be made in any action brought by a primary publisher.”

Google attempted to escape liability by saying their algorithms are very complicated and that they can’t be expected to monitor and supervise all of the content made available. According to Winkler “the court rejected this argument ruling essentially that ‘It’s your business model, it’s your algorithm and so don’t complain to us that you don’t — through the deficiencies in your own business model — have the ability to control defamatory content you’re making available.’

“In my view, the Australian approach is correct, yet the commission specifically rejects it in this report and instead recommends immunity for content providers such as Google,” Winkler says. “Whether liability is to be extended to intermediaries will ultimately be a political decision left to the Ontario government.”

A missed opportunity

He also believes the LCO missed an important opportunity. He says he would have preferred if the report went further with recommendation 39, which suggests the province explore setting up an online dispute resolution platform for the resolution of certain defamation actions.

“The commission missed the opportunity to recommend the establishment of such a system and make recommendations of what it could look like,” Winkler says. “The reality is that the court process is way too slow and expensive and doesn’t provide an efficient and timely remedy to someone who is being harmed by defamatory material online.”

He says the commission could have recommended something similar to the Condominium Authority Tribunal (CAT), an online dispute resolution mechanism used to settle disputes involving those units.

With the CAT, Winker says both sides submit material to a panel of adjudicators with subject matter expertise in condominium law, who then make expedited rulings and can award limited damages.

“A similar tribunal for defamation cases would give expedited vindication for those who have been defamed. Since quick public vindication is often the most effective remedy for a harmed reputation, he believes that such a tribunal would be popular with plaintiffs and rid the overburdened court system of many actions.

“Unfortunately, the commission simply raised the prospect of this sort of mechanism, then stopped short of providing recommendations about what it could look like,” Winkler says.

Those who have been asked to comment on the report have until Aug. 1 for submissions, he says, with the province left to decide whether to accept any or all of the 39 proposals.

Originally published by LegalMatterscanada.ca on May 11, 2020

Technical deficiencies opened door for Yukon Appeal Court to overturn defamation verdict: lawyer

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The Yukon Court of Appeal has sent a defamation case back to trial because of the inadequacy of the judge’s instruction to the jury, with a lawyer characterizing it as a “results-driven” decision as he felt the court did not like the original verdict.

The case in Senft v. Vigneau 2020 YKCA 8 deals with a defamation action brought forward by Angela and Michael Senft for allegedly defamatory comments made by Audrey Vigneau and Susan Herrmann. The Senfts had been involved in a dispute with a former friend, Daniele McRae, over the title to her house. The defendants claimed the Senfts were trying to force McRae out of her home and move her into a seniors’ residence, allegations which were posted on Facebook and in flyers sent out to the Dawson City community, as well as a GoFundMe page.

The Senfts commenced an action against Vigneau and Herrmann, who both later publicly apologized. At trial, Vigneau and Herrmann defended their comments by saying they were fair comment, but the Senfts replied by saying they had acted with malice in publishing the comments; a successful claim of malice would defeat any successful defence of fair comment.

The jury awarded damages to the Senfts, finding Vigneau and Herrmann had made the allegedly defamatory comments and acted with malice when publishing them. The jury made no finding with respect to the fair comment defence, and awarded the Senfts approximately $377,000 against Vigneau and approximately $432,000 against Herrmann.

But Justice Daphne Smith, writing for a unanimous Court of Appeal, set the awards aside and ordered a new trial. She ruled the trial judge erred in failing to determine whether the evidence adduced at trial raised a probability of malice before putting the question to the jury, and also failed to instruct the jury that express malice could not be considered unless they first determined Vigneau and Herrmann had established the defence of fair comment on a balance of probabilities and if established, in order to defeat the defence, that malice was Vigneau and Herrmann’s dominant motive in publishing the defamatory comments.

“In my opinion, as a matter of law, the judge was required to make a determination on whether the evidence adduced raised a probability of malice before instructing the jury on the issue,” she wrote in her March 27 decision. “His failure to do so constituted an error of law reviewable on a standard of correctness. In the circumstances of this case, this error could not be rectified after- the-fact on appeal.”

Justice Smith noted the lower court judge “properly recognized that, months after the trial had been completed, he could not undertake a detailed review and weighing of the evidence in order

to remedy the oversight of failing to make the required ruling.”

“This court is faced with the same problem. Where the issue of express malice raises a question of fact, an appellate court is generally not well-suited to step in and undertake a detailed evidentiary analysis as a matter of first instance in order to determine if the evidence raised a probability of malice,” she wrote. “This court is in no position to undertake a detailed review and analysis of the evidence for the purpose of determining if it raised a probability of malice, where the trial judge himself found the delay had made it impossible for him to undertake the task. In my view, the only way the error in this case can be rectified is to order a new trial.”

Howard W. Winkler
Howard Winkler, Winkler Dispute Resolution

Howard Winkler of Winkler Dispute Resolution said the lesson of the decision is that “close attention has to be paid to the technical requirements of the law, and that if you fail to appreciate those technical aspects of the law then the decisions of the court are going to be open for review.”

“In terms of remitting it back for consideration [the Court of Appeal] had two choices — they could have sent it back to the trial judge or ordered a new trial. Given the statement by the trial judge that he could no longer, given the length of time, undertake a detailed review in weighing the evidence they were incapable of sending it back to the trial judge for reconsideration, so they were forced therefore to order a new trial,” he said. “However, the question remains of whether the Court of Appeal could have substituted its own decision and brought an end to the litigation, but I think given the circumstances of this case, given that it was a jury trial and jury verdict it probably would have been very difficult for them to do that.”

But Winkler said he was of the view that the Court of Appeal’s decision was very results-driven, in that he felt the court didn’t like the jury verdict and was inclined to find a basis to allow the appeal.

“You never know the decision-making process for a jury and that is why they are very difficult to overturn,” he said. “So, when I read this case, it was likely the jury was wrong in finding the

defendants were motivated by malice, which is why on the face of it, it appears to be an unfortunate decision. But what the court needed to do was find technical deficiencies in the judge’s decision-making and instructions to the jury to open the door to the opportunity of allowing the appeal.”

Counsel in the case did not respond to a request for comment. The Yukon Court of Appeal is made up of justices of the British Columbia Court of Appeal and justices from the Yukon Territory, Northwest Territories and Nunavut.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.

The Technical deficiencies opened door for Yukon Appeal Court to overturn defamation verdict: lawyer was published by The Lawyer’s Daily on April 9, 2020

 

A balancing of interests is currently paramount in anti-SLAPP litigation

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By LegalMatters Staff •A recent Superior Court of Justice ruling rejecting an application to dismiss a defamation lawsuit under anti-SLAPP legislation will likely be back in court on appeal, says Toronto litigator and lawyer Howard Winkler.

Winkler, principal and founder of Winkler Dispute Resolution, says he believes the judge in CUPW v. B’nai Brith Canada et. al posed but did not answer the key question of whether the public interest in protecting the statements made by the defendants outweighed the harm suffered or likely to be suffered by the plaintiff.

“In my view, the judge’s failure to engage in that balancing of interests is fatal to the decision and for that reason, an appeal will be successful,” he tells LegalMattersCanada.ca. “It’s a curious decision in that the judge clearly understood what needed to be done, what needed to be answered, but he didn’t complete the analysis.

“It’s too early for anyone to comment on the merits of the case because that would involve a deep examination into the facts,” adds Winkler, who was not involved in the case but comments generally.

Anti-SLAPP

Under Ontario’s anti-SLAPP (Strategic Litigation Against Public Participation) legislation, judges have the power to dismiss lawsuits if the defendants can convince the court that the action arises from an expression that relates to a matter of public interest.

The amendments to the Courts of Justice Act are also known as the “Gag Proceedings,” sections intended to, among other things, encourage individuals to express themselves and promote broad participation in debates on matters of public interest.

Decision pending

Winkler appeared before the Supreme Court of Canada (SCC) last fall on behalf of lawyer Maia Bent in Maia Bent, et al. v. Howard Platnick, et al, a $15-million lawsuit brought by Platnick. This is the first case in which this legislation – which also has been enacted in British Columbia – has been considered by the SCC. The court has yet to release its decision.

Winkler notes that in relation to CUPW v. B’nai Brith Canada et. al “what is striking is its two high-profile parties, both of whom participate or are active in the public domain on political matters.”

According to the decision, the union “takes positions on political and human rights issues from time to time and it has for many years supported a boycott of Israeli products because of what the union believes is Israel’s mistreatment of Palestinians in the occupied territories,” which is also known as the Boycott, Divestment and Sanctions Movement.

Following a complaint to B’nai Brith by a Jewish member of CUPW about support for the movement, the organization examined CUPW’s activities in 2018 and discovered the union’s involvement with PPSWU and found postings on the PPSWU Facebook page “which appeared to be pro-Palestinian and which B’nai Brith interprets as implicitly calling for the destruction of Israel,” court heard.

Facebook postings

B’nai Brith called on CUPW to comment on the PPSWU Facebook postings, advising it intended to publish a story about CUPW and its association with PPSWU, court was told.

B’nai Brith published the first of two press releases on July 31, 2019, which are the subject of the defamation action.

Winkler says that on the current state of the law, as expressed by the Ontario Court of Appeal, s. 137.1 (4) (b) – the weighing of public interests – “is the heart of the anti-SLAPP legislation.”

Because he says the judge failed to address this issue, Winkler believes the decision is likely to be overturned or sent back.

As to the balancing of interests, he says “it strikes me that the public interest in the expression is very high.”

“At this stage, you don’t get into a discussion of whether the words complained of are true or not,” Winkler says. “There is clearly a high public interest in discussion related to the involvement of CUPW in matters such as this.

“I think on a consideration of the balancing of interests it’s very likely that B’nai Brith would succeed in having the action dismissed,” he says.

Originally published by LegalMatterscanada.ca on March 13, 2020

Ending online defamation starts with making websites accountable

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By LegalMatters Staff • Ordering anonymous online posters to pay thousands of dollars in damages for defamatory statements they made on an internet chat forum is “a good starting point” but falls short of effectively addressing the issue, says Toronto litigator and lawyer Howard Winkler.

In an Ontario Court of Justice judgment released on Jan. 13, Justice Frederick Myers ordered 12 anonymous posters to pay damages and court costs for defamatory comments made on a website chat forum.

“If people want to make hurtful statements about others and then try to hide from the responsibility to prove the truth or other justification for doing so, then … their cowardice is reprehensible and, in my view, they should bear costs on a substantial indemnity basis,” Myers writes.

Winkler, principal and founder of Winkler Dispute Resolution, says the decision is a victory for the plaintiffs even though the chances of collecting damages appear slim.

“The good news is that by getting a judgment the plaintiffs could argue that their reputations have been vindicated and that’s an important remedy in a defamation case,” Winkler tells LegalMattersCanada.ca. “What I find curious from a legal perspective and what would have pushed the envelope in terms of legal principle, is if they had also sued the website operator.

“That would have advanced the limits of the current law in Ontario. I’m not sure the issuing of a judgment against a John Doe really moves the legal envelope very far.”

The Globe and Mail reports that the defamatory comments were posted in 2014 and 2015 on an investor-oriented message forum directed at a publicly traded pharmaceutical company, and its two principals, criticizing them personally and professionally.

While the website operator was unable to provide the real identities of the posters, it was able to give the plaintiffs email addresses, allowing them to serve the lawsuit, according to The Globe.

Only one defendant responded to the lawsuit and his case is ongoing, The Globe reports, while the others were noted in default.

12 commentators ordered to pay damages

In his ruling, Myers awarded general damages ranging from $7,500 to $35,000 against each of the 12 and ordered them to pay $60,000 in legal costs, while noting “how the plaintiffs will go about amending the title of proceedings for enforcement purposes once they identify one or more of the defendants is not before me.”

 “I make no findings about how any judgment is to be enforced against a person who is currently identified only by a pseudonym,” he writes.

Winkler, who was not involved in the case and comments generally, says one interesting aspect to note is that “we don’t know if any of the traditional defences would have succeeded if the matter had been defended.”

He says while the plaintiffs scored a “symbolic victory of vindication, it cost them a lot of money and they are unlikely to recover any of the damages or costs awarded.”

Going after an anonymous poster is akin to attacking the symptom while failing to address the cause, says Winkler, using recent cases in Australia as an example of a better approach.

“Their courts have had the opportunity to consider the issue and have ruled quite clearly and consistently that if a website operator has knowledge of defamatory content on their site and they don’t remove that content, they become co-publishers and they become responsible,” he says. “We haven’t had the opportunity to have that principal tested here but if one is really concerned about the proliferation of anonymous defamatory material on the internet you need to look to those websites that are facilitating it.”

Winkler says while there may be instances where pseudonyms are permissible, the website operator should still be responsible for collecting the true identity of the poster, “then you would be able to hold those people accountable for what they say.”

“If knowing that your real identity can be disclosed or discovered, I think people will be more careful about what they say and I think that’s part of the solution to the problem,” says Winkler, adding website owners must also be forced to face up to their responsibilities.

“All you need is one big judgment against an operator for knowingly permitting defamatory material to be posted on their website to have them change their behaviour.”

A warning sent to others

He says Myers’ judgment serves as a warning to those who try to hide behind a pseudonym.

“What it says to an anonymous poster is we can get a judgment against you and if we can find out who you are, you are going to be held accountable. So it’s a good starting point,” Winkler says.

However, he cautions that more has to be done. 

“Confirming you can obtain judgment against a John Doe is important but I don’t think it amounts to a radical advancement of the law of defamation in holding people accountable for what they say,” Winker says. 

“I think the best way to prevent these kinds of anonymous defamatory postings is to require the platforms to take more responsibility and be more accountable for what they are facilitating.” Such an advancement should not have the effect of limiting genuine free speech.

For more, see Howard Winkler’s interview with The Lawyer’s Daily

Originally published by LegalMatterscanada.ca on February 10, 2020

Howard Winkler’s media roundup

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Toronto lawyer and mediator Howard Winkler is frequently called upon by the media as a trusted source for their news stories, particularly for his focus on defamation and privacy issues.

See the complete list below:

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Toronto lawyer and mediator Howard Winkler tells the Toronto Star he has brought a motion to dismiss a defamation case against his client, Ontario’s former PC leader, under a section of the Courts of Justice Act aimed at limiting “strategic lawsuits against public participation” or SLAPP actions.

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Toronto lawyer and mediator Howard Winkler tells QP Briefing that a threat to sue someone during an election campaign is likely “fairly empty,” given litigation is expensive and time-consuming and “any vindication that then comes with a favourable judgment, again absent actual harm, is often of little real benefit.”

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Legal action is almost guaranteed after a city councillor and a former colleague filed a court application known as a Norwich Order, which requests the names, contact information, messages and contracts between a web developer and clients who hired or directed them to create negative websites, Toronto lawyer and mediator Howard Winkler tells the London Free Press.

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Toronto lawyer and mediator Howard Winkler tells the Globe & Mail that the statements made by a high-profile investor against his client, a private equity manager, were “on their face, outrageous, false and defamatory” and “clearly indefensible.”

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In his recent column for Law Times, Toronto lawyer and mediator Howard Winkler says the end to abusive non­-disparagement clauses in employment law releases is on the horizon thanks in part to Uber’s attempt to enforce the over-reaching arbitration provision in its agreement with its drivers.

Toronto lawyer and mediator Howard Winkler tells La Presse the Liberal government’s endorsement of a contentious article in the new free trade agreement between the U.S., Mexico and Canada will give immunity to social media companies in Canadian courts even if they knowingly disseminate fake, false and defamatory statements of their members.

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By signing on to the United States-Mexico-Canada Agreement (USMCA), the Liberal government agreed to significantly alter the existing common law of defamation, Toronto lawyer and mediator Howard Winkler writes in Law Times.

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A former member of Parliament’s unsuccessful defamation case against a major B.C. newspaper underscores a recent trend by the courts to balance interests more towards freedom of expression rather than protection of a person’s reputation, Toronto lawyer and mediator Howard Winkler tells The Lawyer’s Daily.

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Toronto lawyer and mediator Howard Winkler tells Global’s 640 Torontohe’s concerned the Prime Minister’s Office (PMO) may have overstepped its authority by requesting Twitter delete what it said was a fake account impersonating Environment Minister Catherine McKenna.

Subway’s defamation lawsuit aimed at stifling criticism: CBC

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TORONTO — A lawsuit by the world’s largest fast-food operator over a report on the content of its chicken sandwiches is an attempt to stop the CBC from covering matters of public interest, an Ontario court heard on Tuesday.

Subway’s claim for $210 million in damages over a Marketplace broadcast in February 2017 about the chain’s Canadian chicken offerings has already had a chilling effect, a lawyer for the public broadcaster said.

Gillian Kerr told Superior Court that laboratories have become leery of working on investigative pieces or are demanding full indemnity before doing so.

U.S.-based Subway IP, along with Subway Franchise Systems of Canada and Doctor’s Associates in the United States, claims the program defamed the company and hurt its bottom line.

The company argues the program — which found only 50 per cent chicken DNA in Subway’s chicken sandwiches with as much soy — was factually wrong and based on a “complete lack” of scientific evidence.

“The chicken products are, and were, one per cent soy protein,” Subway lawyer Sana Halwni told the court. “Exactly as Subway told the CBC before they ran the broadcast.”

The lawsuit, Subway says, is aimed squarely at setting the record straight, not silencing the broadcaster.

In an interview with AdvocateDaily.com, Toronto lawyer and mediator Howard Winkler says it is somewhat surprising that the parties chose to argue this matter now given that the Supreme Court of Canada (SCC) is scheduled to hear two appeals on Nov. 12, 2019, that will determine the proper interpretation of the legislation in issue.

“It is likely that Justice Edward Morgan will reserve his decision until the SCC renders its decision,” says Winkler, principal and founder of Winkler Dispute Resolution.

“If the SCC alters in any significant way the approach to the legislation taken in the cases under appeal, the parties in this case may have to file additional evidence and written argument and undertake further oral argument. It might have made more sense for this motion to be held in abeyance until after the SCC renders its judgment.”

He says the two cases before the SCC will serve to clarify the proper interpretation of legislation in issue, whose purpose is to, among other things, encourage individuals to express themselves on matters of public interest and discourage the use of litigation as a means of unduly limiting such expression.

“I am counsel to a defendant in one appeal before the Supreme Court, and we will be arguing that the Court of Appeal interpreted the legislation in a way that it fails to properly achieve the purposes of the legislation,” Winkler says.

An interesting aspect of this case is the suggestion by the CBC that the lawsuit is making laboratories, which are critical to CBC scientific investigations, reluctant to participate in their investigations, he says.

CBC wants Morgan to toss the lawsuit before trial under so-called anti-SLAPP legislation, which aims to protect free expression on matters of public interest.

“The onus is on Subway [to prove] that there are reasonable grounds to believe that the CBC’s responsible communication defence is not valid,” CBC co-counsel Christine Lonsdale told Morgan.

Subway lawyer William McDowell countered that no defence under the legislation has succeeded in cases where the “very core of the story” has been found to be false.

Lonsdale said the Subway segment aired after a thorough investigation that took months. The broadcaster asked Trent University to analyze the chicken content of the sandwiches, then had a reviewer from Guelph University look at the results.

“Those are very relevant factors in assessing the diligence of Marketplace,” Lonsdale said. “These were not less trustworthy sources or sources with an axe to grind.”

In addition, she said, it was a matter of significant public interest, which favoured the dissemination of the information. CBC, she said, was practising responsible journalism.

Marketplace asked Subway repeatedly for comment before airing the piece but the company refused an on-air interview. It did deny CBC’s findings but refused to provide the percentage of chicken or other ingredients on the basis the information was proprietary.

Instead, the company developed an internal public relations strategy and then an external strategy that denounced the findings as 100 per cent wrong, court heard.

“They decided they weren’t going to engage with the CBC,” Lonsdale said. “(But) the Subway side of the story was reflected in the program,” Lonsdale said.

The CBC lawyers said Subway has a history of aggressive litigation, including a separate lawsuit against Trent University.

Kerr also said the restaurant operator had exaggerated the impact of the broadcast on its fortunes, which she said were minimal at best.

“There’s a complicated question as to what the losses suffered from a defamation are,” Morgan interjected.

The hearing continues.

Pilot’s victory classic application of anti-SLAPP law: Winkler

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The dismissal of an airline’s $10-million defamation claim against a former pilot is a textbook case of anti-SLAPP legislation in action, says Toronto lawyer and mediator Howard Winkler, who acted for the pilot.

As the National Post reports, the airline sued its former employee after he self-published a book that was critical of the company’s safety record.

But Ontario Superior Court Justice Shaun O’Brien threw out the case under relatively new provisions of the province’s Courts of Justice Act designed to deal with Strategic Lawsuits Against Public Participation (SLAPP), which allow for the dismissal of actions involving comments on a “matter of public interest.”

Winkler, principal and founder of Winkler Dispute Resolution, tells AdvocateDaily.com that his client was extremely relieved by the decision.

“The cost of defending the action and the potential liability would have ruined him,” he says. “When you consider the importance of the nature of his speech, the indicia of SLAPP, combined with the minimal amount of damage, I think you have a classic application of what SLAPP legislation is designed to do.”

The pilot’s book was critical of his former employer. He also gave interviews as part of a Post investigation into the safety and maintenance practices of the airline, which strongly denied all complaints, pointing to its success in passing a rigorous international safety audit.

The newspaper says it was threatened with a lawsuit following the publication of its investigation, but the airline ultimately proceeded against the pilot alone and has also announced its intention to appeal.

Despite the book’s “provocative and sensationalized” wording, O’Brien concluded that any damage done was outweighed by the public interest in the debate around an issue as serious as airline safety.

“[The defendant] spoke out on a matter of significant public importance,” the judge wrote. “He caused limited harm to [the airline] with his self-published book, but was silenced by a much more intimidating litigant.”

According to the Post, the pilot’s book sold just 247 copies online before the airline convinced the retailer to stop selling it, while the pilot himself halted his own sales once the lawsuit was launched. Those facts showed that the action had interfered with the defendant’s ability to express himself, the judge found.

“He has said he does not feel free to pursue an important conversation about the safety of regional airlines and, in particular, [the airline],” she wrote. “In other words, actual libel chill is an issue here.”

Since its passage with all-party support at Queen’s Park in November 2015, Winkler says the anti-SLAPP legislation has been well-tested in court. After a number of Superior Court motion decisions, the Court of Appeal weighed in last summer after hearing six appeals together.

He says those cases and the most recent decision should give all plaintiffs in defamation actions pause.

“At this point in time, we’ve had the benefit of a good number of decisions, and I think there is a real incentive for plaintiffs to assess, at the very earliest stage, whether the legislation will apply to their particular complaint and whether it’s worth proceeding,” Winkler says.

Still, he warns that the situation could change once the Supreme Court of Canada hears appeals in two cases later this year.

“Everyone will be waiting to see what the Supreme Court has to says about the proper application of this legislation,” says Winkler, who will appear for one of the parties at the nation’s top court at the hearing in November.

Judge tosses airline’s $10M libel suit against pilot, saying importance of safety debate outweighed harm

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An Ontario judge has thrown out a major regional airline’s $10-million libel action against one of its former pilots, ruling the lawsuit had an unduly chilling effect on discussion of air safety.

Alan Eugeni’s book about his experiences at Air Georgian — where his starting salary as a pilot was $32,000 — was at times provocative and sensationalist and lacked input from the airline, said Justice Shaun O’Brien.

But she found the public importance of debate about the company’s safety record outweighed any damage done to the firm, an Air Canada sub-contractor.

“Mr. Eugeni spoke out on a matter of significant public importance,” concluded the judge in a 16-page written decision released this week. “He caused limited harm to Air Georgian with his self-published book, but was silenced by a much more intimidating litigant … I consider the balance to weigh in favour of protecting the expression.”

The pilot had asked that the case be dismissed before trial under the province’s relatively new anti-SLAPP legislation, designed to combat defamation suits that suppress important public discourse. (SLAPP stands for “strategic lawsuit against public participation.”)

Eugeni criticized Air Georgian’s approach to safety and maintenance in a book and in interviews with the National Post, criticisms that were echoed by other current and former crew members with whom the Post spoke as part of a 2017 investigation into the airline’s safety record. A Transportation Safety Board report last year also raised systemic concerns about the airline’s maintenance practices.

Georgian, which carries 1.5 million passengers a year on 63,000 short-haul flights under the Air Canada Express banner, has strenuously rejected the complaints, noting it is one of just a handful of Canadian carriers that have passed a rigorous international safety audit.

Air Canada ended its contract with Georgian after the Post’s investigation. Their deal is slated to end next February as another company — Jazz Aviation — takes over its flights. Both Air Georgian and Air Canada have denied the end of the contract is connected to the Post’s investigation or to Georgian’s safety record.
In the wake of the Post’s reporting Georgian threatened to sue both the newspaper and another pilot, but proceeded only with a suit against Eugeni.

The airline said that while the ruling validates some of its concerns, it disagrees with the bottom line and plans to appeal.

The judge’s assessment of Eugeni’s book “confirms the position (Georgian) has taken from the outset — that Mr. Eugeni has been pursuing his own agenda with little regard to the objective facts,” said Air Georgian lawyer Matthew Law.

The ruling should also give “considerable pause” to the Post in repeating such allegations, Law said.

Eugeni said Wednesday it felt “wonderful” for the case to be dismissed, and that he stands by everything he has said about his former employer.

Under the SLAPP process, the judge first had to decide if the airline had a reasonable case, and if there was a reasonable possibility that Eugeni’s defences could fail at a trial.

One of those defences was that the statements were true, but the judge noted that Air Georgian had submitted evidence contradicting some of Eugeni’s allegations, including claims he experienced four emergency landings and that all his simulator training was in the middle of the night.

“His wording at times is provocative and sensationalized,” said O’Brien. “While Mr. Eugeni’s focus was on telling his own story, he appears to have made minimal efforts to verify his serious allegations.”

Regardless, the pilot’s lawyer, Howard Winkler, conceded for the purpose of the pre-trial motion that a reasonable trier could rule Eugeni had no valid defence.

That meant the case came down to whether the public’s interest in hearing Eugeni’s views about air safety outweighed any harm done to Georgian’s reputation.

O’Brien said that possible harm — mostly an increased turnover in the company’s staff — seemed minimal and was more likely to stem from other reasons, like an industry-wide shortage of pilots and articles in the Post. Eugeni’s book sold only 247 copies before Georgian convinced Amazon to remove its listing, and the libel suit prompted the pilot to take down his own website selling it.

Meanwhile, the book’s disappearance suggests the suit impeded the pilot’s ability to express himself, said the judge.

“He has said he does not feel free to pursue an important conversation about the safety of regional airlines and, in particular, Air Georgian,” wrote O’Brien. “In other words, actual libel chill is in issue here.”

Winkler said the ruling is among about a dozen so far under Ontario’s 2015 SLAPP law, which will be further tested in two Supreme Court of Canada appeals this November.

“It’s a victory for freedom of expression,” he said of the decision. “Its application was exactly as the legislation intended, and that is to end costly, protracted litigation by those in a superior power position against those who are speaking out in the public interest.”

 

Originally published by National Post on May 30, 2019.

No harm in free speech

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Two cases that will be argued before the Supreme Court of Canada could have far-reaching implications for media organizations and anyone willing to make comments in the public interest.

At issue in both appeals, granted leave from the Court of Appeal for Ontario last month, is the scope of Ontario’s Protection of Public Participation Act, which came into force in 2015.

The law was passed following an advisory panel’s recommendations aimed at reducing the incidence of lawsuits aimed at stifling public participation, known as strategic lawsuits against public participation – or SLAPP – effective in that they silence critics by threatening to burden them with the costs of maintaining a legal defence. Defamation lawsuits, which can be hard to defend, make an ideal vehicle for SLAPPS.

“The Supreme Court has the opportunity to interpret the new legislation in a way that recognizes the importance of free speech and protects the press and others from litigation—including the significant expense of litigation—that threatens to silence their voices,” said defamation and media lawyer Julia Lefebvre.

Neither case involves media organizations directly. The first case, Platnick v. Bent, arose from a defamation lawsuit launched by a medical practitioner against a lawyer in an insurance matter. The second, 1704604 Ontario Ltd. v. Pointes Protection, deals with a dispute between a land developer and a group of Sault Ste. Marie residents, opposed to a residential development.

And for the most part, media companies have made limited use of anti-SLAPP laws in Ontario. According to Justin Safayeni, a litigator at Stockwoods in Toronto, of the two dozen cases that have been brought forward under the law in Ontario, only a couple have involved the media.

Even so, the ability of defendants to successfully bring forward anti-SLAPP motions is very much in question.

“The legislation on its face seems like a powerful tool for defendants,” says Safayeni. “But as the courts decided how to interpret and apply the legislation, it became increasingly clear that it would be difficult to win anti-SLAPP motions.”

The language of the act, he says, was meant to be straightforward. “For this legislation to be effective, it has to have teeth,” Safayeni said. “And with the language that was used in drafting this legislation, it certainly suggests that there was an intention for there to be a pretty high bar before plaintiffs can proceed with defamation claims against defendants that have made expressions on a matter of public interest.”

But the courts are still struggling, according to both Safayeni and Lefevbre, with how to protect individuals and organizations from spurious defamation claims. One of the challenges the courts face is that motions are brought early in the life of the case. It’s hard at that stage to determine the merit of the allegedly defamatory speech or whether the moving party really has no valid defence in the proceeding.

“I’m hoping that there is a tilt back in favour of what I think the language of the statute supports and requires,” Safayeni says. He hopes that the Supreme Court will recognize that the legislative remedy needs to be applied rigorously to be effective. That means that courts “need to have some comfort in ending the right case at an early juncture,” he says.

The key question for the Supreme Court will be to determine whether the approach taken by the appellate court approach drifted too far from achieving the law’s purpose.

The Court of Appeal for Ontario also raised other issues, namely that “public interest” is not defined in the legislation.

That’s important because, in identifying the merit of an anti-SLAPP motion, the court must weigh the harm suffered by the plaintiff against the value of freedom of expression in the public interest. That requirement to strike a balance is an equation that’s unique to this legislation, says Safayeni.

For now, he sees a trend where courts willing are inclined to tilt the balance in favour of the plaintiff, even where the expression is highly defamatory, but without any evidence of damages or harm suffered.

Originally published by National Magazine on May 14, 2019.

Case may clarify how platforms treat defamatory content: Winkler

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An ongoing lawsuit in British Columbia could help define what responsibility online platforms have once they are notified that content on their site is defamatory, Toronto lawyer and mediator Howard Winkler says.

The matter involves a businessman who is suing Twitter over its “role in policing defamatory or hateful speech” on the website, reports The Globe and Mail.

“I hope that the plaintiff sees this action through to the end because it involves a really important legal principle in Canada that needs to be clarified,” says Winkler, principal and founder of Winkler Dispute Resolution.

He says defamatory postings on platforms such as Facebook and Twitter have been a serious problem for individuals and businesses for a long time.

“The liability of websites for content posted by others once the host has notice of the defamatory nature of the content has never been tested in Canadian courts,” Winkler says, “Fighting the Googles, Facebooks and Twitters of the world would require enormous resources that most individuals and businesses don’t have.”

Winkler concedes it would be “unfair and unrealistic” to think that Facebook or Twitter could monitor all of the content on their sites since new material is posted all the time.

“In fact, traditional law provides them with immunity in those circumstances, through a defence called innocent dissemination,” he explains.

However, once these websites are made aware of content that is defamatory, Winkler says it is a completely different situation.

“In Australia, another common law jurisdiction, they become liable for the content based on traditional principles, which should equally apply in Canada,” he tells AdvocateDaily.com.

The Globe article states, “Twitter and other social-media companies such as Facebook view themselves as platforms,” and not publishers, and therefore can’t be held responsible for content.

But Winkler says that argument was rejected by the Supreme Court of South Australia.

In its judgment, the court ruled, “The ignorant should not be allowed to wreck reputations with impunity. Once knowledge … of the words is proved, the secondary publisher who persists in the dissemination of the material carries the risk of the ultimate findings as to their meaning.”

Winkler says that is consistent with traditional principles in the law, giving the example of a newspaper being held liable if an article it publishes includes defamatory quotes.

“Why wouldn’t the same principles apply to Google or Facebook, which are today’s facilitators of news and information?” he asks. “It is an important principle because people in Canada are, at the moment, helpless in relation to the defamatory and fake content that’s posted about them when the author is anonymous, out of the reach of Canadian courts or impecunious. To date, the response of most large internet providers is to refuse to take any action whatsoever.”

Winkler says that creators of this damaging material often use aliases that don’t identify the author of the content, and they post the material from a public computer, such as those found in a library or internet café, so that their identity is untraceable.

“If we can’t impose some kind of liability or control on entities like Facebook and Twitter, people are left with no recourse, even though the content can be immediately and permanently damaging to one’s reputation,” he says.

Winkler says there are two things that could impact the lawsuit, the first, an obstacle to plaintiffs, being “a little-discussed paragraph” in the yet-to-be-ratified Canada-United States-Mexico Agreement.

“If you read the agreement, you will see that paragraph two of clause 19.17 essentially provides absolute immunity for internet content providers, paralleling an existing provision in the Communications Decency Act in the United States,” he says.

When the agreement was adopted in principle by the three countries, Winkler says there was “very little discussion about this paragraph’s inclusion, giving entities like Google, Facebook and Twitter absolute immunity in relation to the content that they post.”

The second factor, this time favouring a plaintiff, is legislative reform, he says, noting that some U.S. Democrats have suggested they would consider amending the Communications Decency Act to eliminate this immunity.

Here in Canada, some members of the federal government have suggested that online platforms should be regulated, Winkler says, even though to expose the platforms to liability would be contrary to the proposed trade agreement.

Supreme Court to consider insurer’s medical examiner defamation suit against lawyer

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The end to abusive non­disparagement clauses in employment law releases is on the horizon thanks in part to Uber’s attempt to enforce the over-reaching arbitration provision in its agreement with its drivers.

A $15-million defamation lawsuit by a doctor who examines accident benefits claims on behalf of auto insurers is headed to the Supreme Court of Canada.

The top court announced Thursday it will hear an appeal of Platnick v. Bent, released Aug. 30, 2018 by the Court of  Appeal for Ontario.

Dr. Howard Platnick is a general practitioner whose work is comprised mainly of preparing and reviewing medical assessments for insurers in auto claims disputes. He is suing Maia Bent, a London, Ont.-based personal injury lawyer with Lerners LLP and past president of the Ontario Trial Lawyers Association.

In 2014, Bent was representing a woman insured by TD and injured in 2007 in an auto accident. Dr. Platnick was retained by SLR Assessments (Sibley) to assess whether or not the claimant should be considered catastrophically impaired.

Specifically, Sibley hired Platnick to write an “executive summary report” of individual assessments prepared by independent medical examiners who assessed the claimant. Dr. Platnick concluded that the claimant did not meet the criteria for catastrophic impairment.

Bent represented the claimant before arbitration with the Financial Services Commission of Ontario. Ultimately the insurer settled, allowing the claimant to be considered catastrophically impaired.

Dr. Platnick filed his defamation lawsuit against Bent in 2015, following comments Bent made in 2014 on a listserv – an automated email service for members of the Ontario Trial Lawyers Association. Although subscribers are required to keep listserv comments confidential, the comments Bent made about Dr. Platnick were leaked to the press. In her listserv post, Bent had made comments about two different arbitration proceedings, involving two different disputed claims, in which Dr. Platnick wrote reports for insurers.

The 2018 Court of Appeal for Ontario decision, which Canada’s top court will review, was not on the merits of the lawsuit. Rather, the Court of Appeal for Ontario ruled that the lawsuit will go to trial. This overturned a 2016 decision by Justice Sean Dunphy of the Ontario Superior Court of Justice. Dunphy had thrown Dr. Platnick’s lawsuit out of court. Lerners was also a named defendant.

So, the Supreme Court of Canada could conceivably restore the original ruling that dismissed the lawsuit, or it could uphold the order that sends the lawsuit to trial.

Defamation is when a person publishes allegations that harms the reputation of another. Several defences are available – a key one being the defendant can prove the allegations are true. Another defence is qualified privilege, which is a fair and accurate report on proceedings of a public authority, such as a court or legislature.

A key issue in appeal in Platnick v. Bent is whether anti-SLAPP (strategic lawsuit against public participation) legislation passed in Ontario in 2015 has the effect of quashing Dr. Platnick’s defamation lawsuit. The four-year-old amendment to the Courts of Justice Act, also known as the “gag proceeding” section, was intended to stop lawsuits designed to dissuade people from freely expressing and participating in matters of public interest. Bent asked the court in 2016 to dismiss Dr. Platnick’s lawsuit under the gag proceedings law.

The Supreme Court of Canada plans to hear Bent’s appeal along with a different case – 1704604 Ontario Ltd. v. Pointes Protection Association – that does not involve auto insurance but does involve the gag proceedings legislation. The Pointes Protectioncase arose from a dispute between land developers and a group of people opposed to a proposed subdivision in Sault Ste. Marie.

Dr. Platnick’s lawsuit against Bent has “had a substantial chilling effect on discussion and debate about the proper use and utility of (insurers’ examiner reports) in the accident benefit claims process,” Justice Dunphy wrote in 2016.

But Ontario appeal court Justice David Doherty noted that indicators of SLAPP lawsuits include a financial or power imbalance that strongly favours the plaintiff, and a plaintiff suffering minimal or nominal damages. “There is no evidence of a power imbalance between the parties to this lawsuit,” Justice Doherty wrote in the unanimous ruling. “There is no suggestion that Dr. Platnick routinely resorts to litigation or threats of litigation to silence critics. Nor does it seem sensible that Dr. Platnick would set out to punish or silence Ms. Bent, a partner in one of Canada’s most prominent personal injury litigation law firms, by suing her.”

The Court of Appeal for Ontario agreed with Dunphy’s finding that the topic of insurers’ assessment reports is a matter of public interest.

In the 2014 report that led to Bent’s listserv posting, Dr. Platnick said it was the “consensus conclusion of this assessment” that the claimant “does not achieve the catastrophic impairment rating.”

But that was actually Dr. Platnick’s own conclusion, Justice Dunphy wrote in his 2016 ruling. “Dr. Platnick had not spoken to or even contacted any of the other physicians whose reports formed the basis of his own report. He did not ever see the patient.  His review was strictly a desk review.”

Although Dr. Platnick acknowledged that the use of the word “consensus” in the report was a misnomer, he argued that an informed reader should not be misled by the use of the word consensus.

Bent cited Dr. Platnick’s report, among others, in her 2014 email.

“The ‘sting’ or ‘main thrust’ of the allegations in the email, when read in the context of the email’s entirety, is the assertion that, on two occasions, Dr. Platnick misrepresented or altered the opinions of other medical experts with a view to depriving a claimant of a catastrophic impairment classification to which the claimant was entitled,” as Justice Doherty summarized the situation in his 2018 decision. “They are allegations of dishonesty and serious professional misconduct.” The appeal court found that the potential harm to Dr. Platnick’s reputation outweighed the public interest in protecting Bent’s freedom of expression.

A four-year old section (137) of the Courts of Justice Act stipulates that a judge shall not dismiss a case under the anti-SLAPP section if the plaintiff convinces the court that:

  • there are grounds to believe the lawsuit “has substantial merit”
  • that the defendant has no valid defence; and
  • that the harm suffered by the plaintiff “is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”

In 2016, Justice Dunphy ruled that Dr. Platnick did not meet this onus. That finding was overturned on appeal in 2018.

The “justification defence” in a libel suit is when the defendant proves the allegations are true. Dr. Platnick presented “reasonable grounds” to believe that Bent might not be able to use the justification defence, Justice Doherty wrote. This, he reasoned, is because Bent might not be able to convince a court that Dr. Platnick had changed the decision of another doctor.

Justice Doherty also ruled that Bent can use the defence of qualified privilege for some but not all of the comments she made in the 2014 email.

Originally published by Canadian Underwriter on April 26, 2019.

Everyone loses in cautionary New Brunswick defamation case

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A recent New Brunswick decision is a cautionary tale for all involved in defamation claims, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

The case involved a gallery owner who won $3,000 in damages and costs from an artist who badmouthed her online during a dispute over payment.

But Winkler, principal and founder of Winkler Dispute Resolution, says the gallery owner’s victory rang somewhat hollow, considering the small recovery, as well as the time and cost of bringing the action, seeking between $25,000 and $50,000 in general damages alone.

“This decision is a cautionary tale in several respects,” Winkler says. “Not only should people be careful about what they post online, but they must also be careful when deciding what to sue someone over.”

According to the court ruling in the case, the events in question date back to late 2013, when one of the artist’s pieces was sold by the gallery for $4,000. About a year after the sale, when the gallery owner told the court she was suffering from business and personal problems, the artist was still waiting for his full share. He then took to Facebook to vent his frustrations in a post, part of which accused the gallery owner of “theft.”

Separately, the artist won around $750 from the gallery owner, including costs, in a small claims action he launched over the underlying payment dispute.

According to Winkler, the defamation case came down to the artist’s use of the word “theft,” which the judge invoked in dismissing his defences of both justification and fair comment.

“Everyone is entitled to comment fairly on matters of public interest and such comments are protected against claims of defamation. That does not include a reference to someone as engaging in a criminal activity such as theft,” wrote the judge, who noted the distinction between a person who steals and someone who avoids paying debts.

Winkler, who was not involved in the matter and comments generally, says the case was a close one, and that the result could easily have gone the other way.

“The word ‘theft’ suggested an element of criminality to this judge, but in the context of the overall post, another judge or reasonable reader could easily have come to the conclusion that the meaning was not defamatory and that the use of the word ‘theft’ meant nothing more than that the gallery owner was keeping money that properly belonged to the artist,” he says. “In matters like this, the result is often a bit of a crapshoot.”

In addition, Winkler says the case demonstrates the inadequacy of the judicial system when it comes to dealing with matters of reputation.

“The impact of defamatory posts, particularly online, is immediate, but here, it was not resolved until many years later,” he says. “The passage of time was so great, that both parties had probably moved on with their lives.”

If anything, Winkler notes the court case and subsequent news coverage merely rehashed a dispute that makes neither side look good.

“For the gallery owner, this was a victory with respect to the judgment, but it’s possible it did more harm than good by reminding everyone about the fact she had broken a promise to pay an artist,” he says.

The $450 the gallery owner won in costs is also likely to pale into significance with her legal fees, even though the action proceeded under New Brunswick’s simplified procedure, says Winkler, noting that both sides were represented by counsel at trial.

“From a financial perspective, everyone lost, especially when you put it in the context of a sculpture that was valued at $4,000,” he says.

Supreme Court decision not such a dark day for journalists: Winkler

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Free press advocates are overreacting to a Supreme Court of Canada decision that forced a journalist to hand over materials to police, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

All nine judges upheld a previous judgment ordering a Vice Media Canada reporter to turn over messages he exchanged with a Canadian citizen allegedly involved with ISIS, prompting a number of commentaries, including by the Canadian Association of Journalists (CAJ) which called it a dark day for journalists in the country.

“This ruling is a serious setback for press freedom in Canada. It creates a chill for anyone who wants to speak truth to power or expose government wrongdoing,” the CAJ said in a statement to media.

But Winkler, principal and founder of Winkler Dispute Resolution, says the sentiment reflects an “exaggeration” of the ruling’s impact.

“In my opinion, the decision represents an appropriate balancing of the various interests at stake in the matter,” Winkler says. “I don’t think it’s a dark day for press freedom for a number of reasons.”

First, he says the judges emphasized in their decision that the case arose before the passage of the new federal Journalistic Sources Protection Act, which created a new framework for search warrants and production orders involving the media, and only came into force in October 2017.

“In terms of precedential value, it’s going to be limited, given the enaction of new legislation that provides specific protection for journalistic sources,” Winkler says.

In addition, the journalist’s source in the Supreme Court case was not one the reporter had offered confidentiality. In fact, the court found the man was keen to make contact with members of the media in order to broadcast his extremist views.

“When someone speaks or provides documents to media on the record, and there is no agreement of confidentiality, there is no reasonable expectation of privacy in respect to those communications, and they may ultimately be disclosed, whether in civil litigation or as a result of a search warrant by a policing authority,” Winkler says. “If confidentiality had been at stake and the court ruled the same way, then depending on the circumstances, I could see the media being more concerned.”

The case has its roots in articles published in 2014 by the Vice Media journalist, based largely on communications he had with a Calgary man who left the country for Turkey earlier that year and later appeared in ISIS propaganda videos.

As part of its investigation into allegations the man had participated in terrorist activity and made death threats, the RCMP obtained an ex parte production order for the journalist’s notes.

Vice’s application to quash the order was dismissed by an Ontario Superior Court judge, whose decision was in turn upheld by the province’s appeal court.

Although the nine justices were united in the result, they split 5-4, disagreeing on the extent of tinkering required to the existing test for issuing search warrants and production orders against journalists.

Writing for the majority, Supreme Court Justice Michael Moldaver dismissed the appeal, finding “the state’s interest in investigating and prosecuting the alleged crimes outweighs the appellants’ right to privacy in gathering and disseminating the news.”

Moldaver endorsed the framework for granting such orders laid out in a landmark 1991 case, also decided by the Supreme Court, though he added that it should be refined, reorganizing the factors to be considered, and allowing for an assessment of the effect of prior partial publication on a case-by-case basis.

In addition, the majority decision modified the standard for reviews of ex parte orders, entitling media outlets to a de novo review if they can introduce information not heard by the authorizing judge.

Winkler says journalists should be more concerned about an upcoming case slated to be heard by the top court in the new year. That involves a Radio-Canada reporter appealing an order that she identify the sources for her story on corruption in Quebec.

“I think the issues in that decision will be much more illuminating and impactful,” he says.

Winkler successful in landmark media libel case

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A recent Ontario Superior Court ruling of criminal contempt resulted in a newspaper publisher being sentenced to 21 days in jail and levied with one of the highest damages awards for spreading a false statement about a Canadian senator, says Toronto litigator and mediator Howard Winkler.

Justice Frederick Myers’ ruling follows an earlier finding by Superior Court Justice Sidney Lederman that the defendants — a Toronto-based ethnic community newspaper, its holding company and publisher — libelled the plaintiff, who represents Ontario in the Red Chamber.

“The finding of criminal contempt is quite unusual and the imposition of the jail term was unique,” says Winkler, who represented the plaintiff senator.

The court found that setting only a financial penalty would not work in finding a resolution or a deterrent in this case, he tells AdvocateDaily.com.

In the earlier court hearing, Lederman issued an injunction prohibiting the publisher and her company from repeating the libel of the plaintiff, directly or indirectly, expressly or by innuendo.

But less than two months later, the publisher repeated the libel, says Winkler. While she was found to be in contempt by Myers in Superior Court, a review of the case by the Ontario Court of Appeal unanimously found “the appellant created a controversy so that she could defame the respondent. This was entirely personal.”

The hearings determined the publisher’s conduct was deliberate “and the intent all along was to destroy the reputation of the senator,” says Winkler, principal and founder of Winkler Dispute Resolution. “We presented evidence that years ago the publisher felt slighted by the senator when he was for good reason late in attending a function held by the newspaper,” he says.

The newspaper then published an article saying the senator should respect the media because it could destroy him, Winkler says.

“The antagonism continued and the court was persuaded that ultimately it was all part of the threat the publisher made those many years ago,” he says.

The rules of responsible journalism are clearly outlined in a 2009 case formulating the boundaries of responsible communication, he says. But the publisher in this matter was not able to provide the court any “evidence or verification of any research to support the allegations being made, there was no fact-checking, and the newspaper never reached out to the senator to warn him about the nature of what was to be published and give him an opportunity to respond,” Winkler says.

“In fact, on cross-examination, I was able to get her to admit that she didn’t believe the allegations to be true,” Winkler says. “You go down the checklist of responsible communication and it’s a classic case of how to be irresponsible and disentitle oneself to that defence.”

It’s common that in a case where a court order was defied, a ruling of civil contempt may be issued by a judge, he adds, but Myers “was very clear in his view that this amounted to a criminal contempt because it was so knowing and deliberate on the defendant’s part in his opinion.

“The criminal contempt is for an offence against the court, not so much the plaintiff,” Winkler explains. “Myers found the publisher was aware of the order, that she knew the scope of it and deliberately tried to circumvent it by having other people republish the original libel.”

The appeals court found the conduct of the publisher “demanded a substantial award of punitive damages,” adding after Lederman’s judgment, “the appellant had repeated the defamation, knowing full well that it was false. On the facts as found by the motion judge, deterrence could only be adequately served by a significant award of punitive damages.”

The behaviour of the publication is unprecedented, Winkler says.

“This is a situation where the publisher allowed her personal animosity towards the senator to creep into the work of the newspaper and the product it was publishing,” he says. “This case represented a complete dereliction of the responsibility that comes with the privilege of being a publisher.”

Winkler believes the case sits among one of the top damage awards issued for media libel.

“I think the case will be relied upon by others to try and push the envelope on damages,” he says, which included $150,000 for general and aggravated damages, $100,000 in punitive damages, and each of the media defendants was fined $5,000 for contempt and court costs, totalling $150,000.

“We’re engaging in efforts to collect on the judgment and the cost orders,” he says.

The trouble with USMCA’s defamation provisions

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By signing on to the United States-Mexico-Canada Agreement (USMCA), the Liberal government agreed to significantly alter the existing common law of defamation, Toronto lawyer and mediator Howard Winkler writes in Law Times.

The winners are companies like Google and Facebook, which facilitate online communication, says Winkler, principal and founder of Winkler Dispute Resolution.

“The loser is the common law protection of reputation and victims of anonymous false and defamatory online statements, such as untraceable comments on rate-my-professional types of sites or Google business reviews,” he writes. “This should be of particular concern to all Ontario lawyers whose reputations are so important and so easily destroyed, as well as to their clients, whose livelihood often depends on their online presence.”

Winkler says the ability to protect one’s reputation is critical, citing a landmark Supreme Court of Canada case, which stated, “to most people, their good reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society’s laws.”

For years, Canadian courts and provincial lawmakers have struggled with the sometimes competing interests between the constitutional right to freedom of expression and the right to protect one’s reputation, he writes.

“This fine balance will be fundamentally altered due to a clause in the USMCA,” Winkler says. “In plain language, this provision will provide absolute immunity to content providers no matter what the nature of the content is that they facilitate.”

“No Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information,” says paragraph two of clause 19.17 of the USMCA.

While some claim this as a victory for freedom of expression, Winkler argues it’s more like a “nail in the coffin” of people’s rights to safeguard their reputation from the explosion of anonymous, false and defamatory content that appears online and served up by search engines.

“One of the greatest challenges to business and individuals today is dealing with the proliferation of fake, false and defamatory content on the internet,” he writes. “Anyone with access to a public computer terminal can, with the push of a keystroke, anonymously, immediately and permanently damage the hard-earned reputation of a business or individual.”

Winkler says it’s not uncommon for anonymous individuals to post fake, false or defamatory reviews of a business with the help of a public computer in a library or from a jurisdiction outside the reach of Canadian courts, including the U.S.

“In the U.S., under the provisions of the Communications Decency Act, ‘no provider … of an interactive computer service shall be treated as the publisher … of any information provided by another information content provider,’” he writes. “In other words, the law in the U.S. provides absolute immunity to providers such as Google, Facebook and Twitter even when they knowingly provide a vehicle for the publication of demonstrably anonymous, false and defamatory content.”

By contrast, Winkler says other common law countries like Australia continue to lead the way when it comes to online defamation and the liability of secondary publishers.

“In the [case], the Supreme Court of South Australia ruled that once on notice, Google must either remove the material or face liability as a secondary publisher,” he writes.

In the matter, the internet giant refused to remove search results that suggested a doctor was a stalker, which the court found were defamatory, Winkler says.

“The court awarded general damages against Google in the amount of AUD$115,000 (approximately CDN$106,000) for loss of reputation and hurt feelings. The award was upheld on appeal,” he adds.

“The ignorant should not be allowed to wreck reputations with impunity. Once knowledge … of the words is proved, the secondary publisher who persists in dissemination of the material carries the risk of the ultimate findings as to their meaning … ” said the ruling.

The common law approach of imposing some responsibility on service providers to exercise control over the content they facilitate make sense and without the USMCA, there’s no reason to think Ontario courts wouldn’t follow the same principles, Winkler writes.

“Finally, the law of defamation is a provincial power. While the enactment of paragraph 2 of clause 19.17 of the USMCA may be within federal powers as it relates to intellectual property, it is arguable that only the provinces can enact legislation affecting the law of defamation,” he says.

Winkler advises provincial legislators and Ontario courts to pay close attention to the USMCA provision and ensure they uphold protection for reputational damage.

“The matter should not be left to the whim of Prime Minister Justin Trudeau or U.S. President Donald Trump,” he writes. “While Trudeau may have intentionally or unwittingly given Google an early holiday gift, one can only hope that, with the passage of time, it amounts to nothing more than a lump of coal.”