Ont. CA finds grounds to believe fair-comment defamation defence unavailable in anti-SLAPP case

Court allows appeal in one case, dismisses appeal in related matter

Ont. CA finds grounds to believe fair-comment defamation defence unavailable in anti-SLAPP case
Natalie Kolos, Borden Ladner Gervais LLP

In a case that dealt with the fair-comment defence to defamation, the Ontario Court of Appeal has overturned the dismissal of an action under the anti-SLAPP law while confirming the dismissal in a related case.

In Mondal v. Kirkconnell, one appeal was successful because the appellant showed that the expression at issue could have been driven by malice and, therefore, the defendant was not protected by the fair-comment defence. In the other, the court dismissed the appeal because the appellant failed to prove the expression demonstrated reckless disregard for the truth.

“We believe this to be the first appellate-level decision applying the Supreme Court of Canada’s recent decision in Hansman v. Neufeld, 2023 SCC 14,” says Natalie Kolos, a partner at Borden Ladner Gervais LLP and counsel to one set of respondents in the case. In Hansman, the SCC found that “counter speech” aimed at protecting a marginalized group deserves protection from defamation actions.

The communications at issue in one of the appeals were a set of posts on X (formerly Twitter) that accused the plaintiff of being homophobic and transphobic and included screenshots of posts that he had since deleted to demonstrate that charge. The appeal court distinguished Hansman, finding that the interaction in Mondal was between two private parties and related to 18-month-old tweets that were no longer on X. The court found this undermined the characterization of the expression as counter-speech, says Kolos.

The disputes in Mondal v. Kirkconnell began when the appellant, Probhash Mondal, who runs Guelph Medical Imaging, posted a photo of himself with Ontario Premier Doug Ford and Minister of Education Stephen Lecce. Stephanie Marie Evans-Bitten, one of the four respondents in the case, replied by posting that Ford and Lecce were “known homophobic conservative politicians” and those who supported them supported homophobia.

The dispute escalated through a series of X posts until Evans-Bitten posted that “gay residents in this city are being forced to seek healthcare diagnostics in other cities because Guelph Medical Imaging is owned and lead [sic] by a man who thinks and tweets this stuff.” The post was accompanied by the photo and screenshots of two of Mondal’s posts from around two years before, which he later deleted. One deleted post had a photo of a man putting money into a drag performer’s thong. The other was a picture of Prime Minister Justin Trudeau waving a Canadian flag where the red is substituted with pride rainbow colours. In the first, Mondal included the text: “This is just how @JohnTory cares about his city… Where’s the tranny, @JohnTory’s got some benjamins for your thong!!!” In the second, he said of Trudeau waving the pride-coloured Canadian flag, “Please do not defile our flag.”

Evans-Bitten posted that she and her wife must seek medical imaging diagnostics outside Guelph “because the current healthcare provider here is a homophobic and transphobic bully.” Mondal responded by posting that Evans-Bitten’s accusations were “unacceptable, malicious, and outrageous,” and he denied his clinic discriminated against gay people.

This led to the second defamation action against a second set of defendants, Ross Kirkconnell and Michelle Smith, executive director and executive assistant of the Guelph Family Health Team, whose doctors refer patients to Mondal’s clinic. The email included screenshots of Evans-Bitten’s tweets and Mondal’s deleted tweets. Kirkconnell and Smith sent the email to the health team’s constituency of physicians. The text of the email read that the team was “committed to anti-oppression/anti-racism and inclusion in all elements of the work we do … we are sharing [the screenshots] with you for your information.” Kolos represented Kirkconnell and Smith in the case. She did not act for Evans-Bitten.

Mondal brought two defamation actions against the defendants, they responded with anti-SLAPP motions, and the court dismissed Mondal’s claims. While he found there were grounds to believe the communications were defamatory, the judge also found that they were protected as fair comment.  

The main issue in the appeals was whether there were grounds to believe that the fair comment defence was unavailable or that, if available, it was defeated by malice, says Kolos.

In a s. 137.1 motion, the plaintiff in the defamation must pass a “merits-based hurdle:” that there are grounds to believe the proceeding has substantial merit or that the defendant to the defamation has no valid defence.

Fair comment is a defence to a defamation claim available if the defendant’s expression passes a four-part test. The expression must be on a matter of public interest. It must be based on fact. And it must be recognizable as a comment, though it can include inferences of fact. The fourth part is an objective test: could a person honestly express the opinion on the proven facts?

If the defendant clears the four-part test, the plaintiff can still defeat the fair-comment defence if they prove that the defendant was “subjectively actuated by express malice,” said Justice Grant Huscroft, who wrote the reasons for the Court of Appeal. Mondal argued that the motion judge failed to consider whether Evans-Bitten’s comments were motivated by malice. Huscroft said her decision to post screenshots of “long-since removed” posts supported the argument that she was driven by “spite or ill will.” Also supporting the malice argument was her “extensive personal invective and accusations against the appellant.”

Huscroft noted that Mondal was not required to establish beyond a reasonable doubt that the fair-comment defence would fail, only that there were grounds to believe it would. Finding he succeeded in that, the judge said that was enough for Mondal to clear the merits-based hurdle.

Huscroft reached a different conclusion with the fair comment defence from Kirkconnell and Smith. Malice can be established if a plaintiff shows that the defendant made the expression “with an indirect motive or ulterior purpose, dishonestly, or in knowing or reckless disregard for the truth.” Mondal argued that Kirkconnell and Smith were reckless in sending the email.

“It may be that in some contexts, a failure to inquire into the truth of a matter may give rise to a finding of recklessness, and hence malice, but it does not in this case,” said Huscroft. The email did not attest to the accuracy of the deleted posts. It simply drew the online activity to the recipients’ attention, “leaving it to them to decide how to proceed,” he said. The court dismissed the appeal of the dismissal of Mondal’s defamation action against Kirkconnell and Smith.

Under s. 137.1(4)(b), the plaintiff must also establish that the public interest in permitting their defamation proceeding outweighs the public interest in protecting the defendant’s expression. The Court of Appeal found that the public interest in permitting Mondal’s defamation action outweighed the public interest in protecting Evans-Bitten’s expression, and the action can continue.

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