Detailed Examination of the Factors
Author | David A. Potts; Erin Stoik |
Pages | 242-261 |
242
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Detailed Examination of the Factors
SPECIFIC LANGUAGE USED IN AN ALLEGATION
The specific language used in the allegation is an important factor of dam-
ages in defamation law: “The nature of the defamatory comment is the most
important element in assessing the amount of damages.”1
The quality and content of the expression and the motive of the defend-
ant are relevant considerations in the weighing of the public interests in
section 137.1(4)(b), unlike the consideration of “the public interest” in section
137.1(3).
1704604 Ontario Ltd v Pointes Protection Association, 2020 SCC 22 at paras 74–76:
[74] . . . [T]he term “public interest” is used differently in s. 137.1(4)(b) than in s.
137.1(3). Under s. 137.1(3), the query is concerned with whether the expression
relates to a matter of public interest. The assessment is not qualitative—i.e.
it does not matter whether the expression helps or hampers the public inter-
est. Under s. 137.1(4)(b), in contrast, the legislature expressly makes the public
interest relevant to specific goals: permitting the proceeding to continue and
protecting the impugned expression. Therefore, not just any matter of public
interest will be relevant. Instead, the quality of the expression, and the motiv-
ation behind it, are relevant here.
[75] Indeed, “a statement that contains deliberate falsehoods, [or] gra-
tuitous personal attacks . . . may still be an expression that relates to a matter
of public interest. However, the public interest in protecting that speech will
be less than would have been the case had the same message been delivered
without the lies, [or] vitriol” (C.A. reasons, at para. 94, citing Able Translations
Ltd. v. Express International Translations Inc., 2016 ONSC 6785, 410 D.L.R. (4th)
380, at paras. 82–84 and 96–103, aff’d 2018 ONCA 690, 428 D.L.R. (4th) 568).
1 Raymond E Brown, Brown on Defamation, 2d ed, looseleaf (Toronto: Carswell, 2010).
Detailed Examination of the Factors | 243
[76] While judges should be wary of the inquiry descending into a mor-
alistic taste test, this Court recognized as early as R. v. Keegstra, 1990 CanLII
24 (SCC), [1990] 3 S.C.R. 697, that not all expression is created equal: “While
we must guard carefully against judging expression according to its popularity,
it is equally destructive of free expression values, as well as the other values
which underlie a free and democratic society, to treat all expression as equally
crucial to those principles at the core of s. 2(b)” (p. 760).
Cheema v Young, 2021 BCSC 461
Subway Franchise Systems of Canada, Inc v Canadian Broadcasting Corporation, 2021 ONCA 26
Niu v Cao, 2020 ONSC 5407
Hobbs v Warner, 2019 BCSC 2196
Ontario College of Teachers v Bouragba, 2019 ONCA 1028
Bondfield Construction Company Limited v The Globe and Mail Inc, 2019 ONCA 166
Amorosi v Barker, 2019 ONSC 4717
Canadian Standards Association v PS Knight Co Ltd, 2019 ONSC 1730
Papa v Zeppieri, 2018 ONSC 7068
Able Translations Ltd v Express International Translations Inc, 2016 ONSC 6785
Vile Language/Abuse
See the following cases:
• Nanda v McEwan, 2020 ONCA 431
• Labourers’ International Union of North America, Local 183 v Castellano,
• Montour v Beacon Publishing Inc, 2019 ONCA 246
• Levant v Day, 2019 ONCA 244
• Lascar is v B’nai Brith Canada, 2019 ONCA 163
• Paramount v Johnston, 2018 ONSC 3711
• Thompson v Cohodes, 2017 ONSC 2590
Personal Attacks
• 1704604 Ontario Ltd v Pointes Protection Association, 2020 SCC 22 at para
75; 1704604 Ontario Ltd v Pointes Protection Association, 2018 ONCA 685
at para 94
• Nanda v McEwan, 2020 ONCA 431 at para 59
• Labourers’ International Union of North America, Local 183 v Castellano,
2020 ONCA 71 at para 14
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