Fridays With Rogers Partners

At our weekly firm meeting, Athina Ionita discussed the case of Levant v. Demelle, 2021 ONSC 1074. The court granted an anti-SLAPP motion and dismissed the plaintiffs’ defamation action for lack of evidence of the impugned statements causing harm to the plaintiffs.

Facts

The plaintiffs, Rebel News Network and its founder Ezra Levant, brought an action against the defendants, the Narwhal News Society and Brendan Demelle, for statements made about Rebel News and its founder in an article titled, “Right Wing Attacks on Greta Thunberg: How Low Can They Go? Canada’s Extremist Network ‘The Rebel’ Tries for the Prize”.

Demelle referred to Rebel as “…founded by disgraced neo-Nazi sympathizer Ezra Levant, a climate denier who once interned at the Charles Koch Foundation. Levant and The Rebel Media earned some notoriety for their laudatory coverage of the deadly 2017 Unite the Right rally in Charlottesville.”

The defendants brought an anti-SLAPP motion under 137.1 of the Courts of Justice Act in response, in an effort to dismiss the plaintiff’s action.

Law

The applicable law on the motion is s. 137.1 of the Courts of Justice Act, which states as follows:

…

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

i. the proceeding has substantial merit; and

ii. the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

Application

The defendants were successful in demonstrating that the matter was of public interest. The court found that the article was about allegations of individuals on the far or extreme right intimidating climate change activists, which was a matter of public interest in the context of the entire article. There was no question that the expression was that of the defendants, thus the requirements outlined by subsection (3) are met. 

In order to save its action, the plaintiff had the onus to satisfy the requirements of subsection (4). With respect to this subsection, the judge found that Rebel’s claim has substantial merit, noting that the article clearly identifies Levant as a neo-Nazi sympathizer, and accuses the plaintiffs of being supportive of white supremacists. The judge states that such statements could lower the reputation of the plaintiffs in the eyes of a reasonable person.

The court found that the defendant did not have a valid defense, dismissing the defendants’ justification, fair comment and responsible communication defences. The defendants attempted to create a patchwork historical account of Rebel having prior associations with alleged xenophobic, white nationalist and/or far-right organizations that were too tenuous or outdated to have any merit.

Further, in their article, the defendants failed to provide facts that could enable a reader to reach their own conclusions. Although, “disgraced” and “laudatory” could amount to fair comment, in the judge’s view calling Levant a neo-Nazi sympathizer went too far into the realm of fact.

The defendants conducting minimal research before publishing the article and chose to overlook key facts. Moreover, the defendants did not contact the plaintiffs to allow them to respond to the issues raised in the article.

The plaintiffs however failed on the last point of the test, as the judge found no evidence of the plaintiffs suffering any harm. Apart from damages in a defamation action being presumed, the plaintiffs led no evidence of any particular or specific economic harm or damage to their reputation as a result of the article.

The judge stated that the plaintiffs’ obligation to lead such evidence was more necessary given the evidence led by defendants that the plaintiffs’ reputations are already poor to begin with.

Therefore, the defendants’ motion was successful and the plaintiffs’ action was dismissed.