Baglow v. Smith et al., 2012 ONCA 407

• Judge: Goudge, Sharpe and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 13, 2012
• Jurisdiction: Ontario
• Citations: 2012 ONCA 407;(2012), 294 O.A.C. 24 (CA)

Baglow v. Smith (2012), 294 O.A.C. 24 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JN.034

John Baglow a.k.a."Dr. Dawg" (plaintiff/appellant) v. Roger Smith a.k.a. "Peter O'Donnell", Connie Fournier and Mark Fournier (defendants/respondents)

(C54350; 2012 ONCA 407)

Indexed As: Baglow v. Smith et al.

Ontario Court of Appeal

Goudge, Sharpe and Blair, JJ.A.

June 14, 2012.

Summary:

Baglow was a political blogger who opposed the war in Afghanistan and supported the repatriation of Omar Khadr from Guantanamo Bay to Canada. During a robust blogging exchange concerning the validity of Omar Khadr's detention, Smith posted a comment labelling Baglow as "... one of the Taliban's more vocal supporters." Baglow sued Smith and the owners and operators of the message board that hosted the blog. The defendants moved for summary judgment.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 5131, allowed the motion. Baglow appealed.

The Ontario Court of Appeal allowed the appeal and directed that the matter proceed to trial.

Practice - Topic 5274.6

Trials - General - Simplified procedure actions, fast track litigation, etc. - Summary judgment - When available - During a robust blogging exchange concerning the validity of Omar Khadr's detention, Smith posted a comment labelling Baglow as "... one of the Taliban's more vocal supporters." - Baglow sued Smith and the owners and operators of the message board that hosted the blog - The defendants obtained summary judgment - The Ontario Court of Appeal allowed Baglow's appeal and directed that the matter proceed to trial - The issues raised were important because they arose in relatively novel milieu of internet defamation in the political blogosphere - They were not issues that lent themselves to determination on a summary judgment motion in the circumstances, particularly where the action was being processed in the simplified procedure regime - Summary judgment was rarely granted in defamation cases - The motion judge concluded that it was appropriate to do so here, principally because the factual foundation was largely captured in the extensive materials taken from the parties' blogs and because there was little in dispute of a factual nature that would be different if the case proceeded to trial - The judge did not have the benefit of the recent decision in Combined Air Mechanical Services Inc. et al. v. Flesch et al. (Ont. C.A.) which set a new "full appreciation" test for summary judgment - Several issues arose in this case which the jurisprudence did not address in any significant way - The responses might have far reaching implications - They were best crafted on the basis of a full record after a trial, at least until the law evolved and crystallized to a certain point - A trial would ensure that conclusions were formulated on the basis of a record informed by the examination and cross-examination of witnesses and possibly with the assistance of expert evidence - This was not simply a document-driven case or a case involving limited contested evidence such that both the full appreciation test and the efficiency rationale could be served by granting summary judgment in a simplified procedure action - The judge found that the impugned words were not defamatory - That too was an issue that needed to be flushed out at trial, and quite possibly, with the assistance of expert evidence.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Practice - Topic 5274.6 ].

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Practice - Topic 5274.6 ].

Cases Noticed:

Cherneskey v. Armdale Publishers Ltd. and King, [1979] 1 S.C.R. 1067; 24 N.R. 271, refd to. [para. 24].

Combined Air Mechanical Services Inc. et al. v. Flesch et al. (2011), 286 O.A.C. 3; 103 O.R.(3d) 1; 2011 ONCA 764, refd to. [para. 26].

Romano v. D'Onofrio et al., [2005] O.A.C. Uned. 526; 77 O.R.(3d) 583 (C.A.), refd to. [para. 30].

Belanger (R.D.) & Associates Ltd. et al. v. Stadium Corp. of Ontario Ltd. and Bitove Corp. (1991), 57 O.A.C. 81; 5 O.R.(3d) 778 (C.A.), refd to. [para. 30].

Counsel:

Peter F. Burnet, for the appellant

Barbara Kulaszka, for the respondents, Mark and Connie Fournier.

This appeal was heard on March 13, 2012, by Goudge, Sharpe and Blair, JJ.A., of the Ontario Court of Appeal. Blair, J.A., released the following judgment for the court on June 14, 2012.