Feb 10, 2020

Labourers' International Union of North America, 2020 ONCA 71

[Rouleau, Roberts and Harvison Young JJ.A.]

Counsel:

Andrew Ostrom, for the appellant

Andrew Faith and Brookelyn Kirkham, for the respondents

Keywords: Torts, Defamation, Anti-SLAPP, Trespass, Courts of Justice Act, R.S.O. 1990, c. C. 43 s. 137.1, Trespass to Property Act, R.S.O. 1990, c. T.21, 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, Montour v. Beacon Publishing Inc., 2019 ONCA 246, St. Lewis v. Rancourt, 2015 ONCA 513, Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396, 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, Rainy River (Town) v. Olsen, 2017 ONCA 605

Facts:

The respondents brought a defamation action against the appellant, a former member of the respondent union, Local 183, based on internet posts that the appellant had made. The motion judge granted the respondents’ motion for summary judgment and granted them injunctive relief.

The appellant argued on appeal that the motion judge erred in her application of the weighing test to be carried out on the s. 137.1 Anti-SLAPP motion in that: first, any evidence of harm to the respondents was insufficient to outweigh the public interest in the appellant’s free expression; second, she understated the public interest value of the expressive content of the appellant’s posts. Furthermore, he argued that the injunctive relief was overly broad.

Issues:

Did the motion judge err:

(1) in her dismissal of the appellant’s s. 137.1 motion?

(2) in the injunctive relief she granted?

Holding:

Appeal allowed in part.

Reasoning:

(1) No. The motion judge correctly articulated and applied the test set out in 1704604 Ontario Ltd. v. Pointes Protection Association. There was no identifiable legal error, nor was there a palpable and overriding factual error. The court did not see any error in her balancing of the competing interests that would permit appellate intervention. She properly considered the issue of the reputational damage to the respondents. It was not necessary for her to find monetary damages because “a serious libel does not always manifest itself in financial losses”: Montour v. Beacon Publishing Inc.

Similarly, the motion judge carefully considered the public interest in the expressive content of the appellant’s posts. Her conclusion that the harm suffered by the respondents outweighed the public interest in protecting the appellant’s expression was well-grounded in the evidence and free from error. For this reason, her decision must be granted deference.

(2) Yes. The appellant argued that the injunction prohibiting any statements or posts about any of the respondents and restricting his attendance was overly broad, and that the motion judge erred in failing to consider whether a more restricted injunction would have sufficed.

With respect to the publication injunction, the court recognized that while a broad ongoing injunction may be appropriate in some circumstances, it is an extraordinary remedy and must be broad enough to be effective, but no broader than reasonably necessary to effect compliance. The evidence before the court did not support a permanent blanket injunction enjoining the appellant from making or publishing any comments about the respondents. There was no evidence to support a finding that the appellant was incapable of discerning between defamatory comments and legitimate criticism and, therefore, the injunction should not have been cast so broadly that it captured non-defamatory statements.

The court then considered the provisions of the judgment that permanently restricted the appellant’s attendance near the respondents “and their families” and that prohibited any communications directly with the respondents. Given their potentially broad and restrictive scope, permanent injunctions must be particularly tailored to the specific circumstances of the case in which they are ordered. It is therefore incumbent on the court asked to consider such relief to conduct a careful analysis and to limit the breadth of any permanent injunction to only what is reasonably necessary to remedy the specific wrong committed and to prevent further harm to the claimant.

While the motion judge adverted to the circumstances in which permanent injunctions against the publication of defamatory statements may be warranted, she did not reference any criteria respecting the advisability of granting a permanent injunction restraining the appellant’s movements or communications. A permanent injunction is a remedy that may be granted once a legal right or a cause of action has been finally adjudicated and proven on a balance of probabilities. Since defamation was the only tort that the motion judge found to have been established, the remedy sought and granted should have been only in relation to and for the purpose of preventing a continuation of that tort. Accordingly, to justify the granting of a permanent injunction restricting the appellant’s movements or communications, the motion judge would have had to conclude that a permanent injunction restricting the appellant’s movements or communications with the respondents was reasonably necessary to remedy the defamation and to prevent the defamation campaign from continuing. She did not do so. Therefore, the motion judge erred in failing to carry out the required analysis and make appropriate findings to determine whether such a broad permanent injunction was necessary. The movement and communications paragraphs of the injunction order were set aside. The Court noted that the respondents were not without recourse. If necessary, other remedies were available to restrain the appellant’s behaviour, such as issuing a trespass notice under the Trespass to Property Act, R.S.O. 1990, c. T.21, which the respondent already did, or pursuing a peace bond under the Criminal Code(Rainy River (Town) v. Olsen, 2017 ONCA 605).


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