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SLAPP - Harm-Expression Balancing II

. Levant v. DeMelle

In Levant v. DeMelle (Ont CA, 2022) the Court of Appeal conducted a classic SLAPP-defamation (libel) appeal analysis. In this quote it considers the SLAPP harm/expression balancing:
c) The weighing of public interests

[66] The motion judge concluded that the weighing exercise required by s. 137.1(4)(b) favoured the respondent because, as was the case in the Al Jazeera action, the appellants had not led any evidence of “particular or specific economic harm or damage to their reputation”. Largely for the same reasons that I have set out above in considering the weighing exercise in the Al Jazeera motion, I agree with the motion judge’s conclusion, but not with his analysis.

[67] I begin by acknowledging that the harm analysis is different in this case given the personal presence of Mr. Levant as a plaintiff. The motion judge did not address that distinguishing factor. Some level of damage to Mr. Levant’s reputation can be presumed from the defamatory statement. However, that is not sufficient for the purposes of s. 137.1(4)(b).

[68] The presumption of damages in a defamation action involving an individual only goes so far. While it may be sufficient to establish the existence of damages, it is not sufficient to establish the level of those damages. This point is addressed in the decision of the Court of Appeal (England and Wales) in Lachaux v. Independent Print Ltd., [2017] EWCA Civ. 1334, [2018] 2 W.L.R. 387, where that court was dealing with a statutory provision intended to limit actions for defamation and create a higher threshold for making out a defamation claim – a not dissimilar exercise as s. 137.1 engages. On the issue of the presumption of damages in a defamation case, the court said, at para. 72:
[T]here is no presumption, at law, of serious damage in a libel case. Accordingly that, under s. 1(1), has to be proved. The point nevertheless remains that serious reputational harm is capable of being proved by a process of inference from the seriousness of the defamatory meaning. [Emphasis in original.]
[69] I accept that the “neo-Nazi sympathizer” comment is a serious one. I would not, however, draw an inference that it resulted in serious reputational harm to Mr. Levant on the record in this case. First, the statement was fairly quickly removed from the article in question. Second, the article itself drew limited attention, given the evidence that it generated slightly fewer than 16,000 views on the internet. Third, is the evidence regarding the state of Mr. Levant’s reputation as reflected in the affidavits filed on behalf of the respondent. Balanced against all of that is the sole statement of Mr. Levant in his affidavit:
I believe that the dissemination of these defamatory statements has damaged my reputation in this regard, and accordingly, Rebel News and I should be entitled to compensation.
That statement is not only self-serving, it is completely devoid of any foundation for the belief.

[70] Finally, on this point, when a person injects themselves into public debate over a contentious topic, they must expect that they are going to be met with some measure of rebuttal, perhaps forceful rebuttal, by those who take an opposite view. The case of WIC Radio is an example of that reality. The evidence demonstrates that the appellants quite readily inject themselves into the public debate on many of these types of issues. Indeed, there is evidence that they consider that to be part of the rationale for their existence. The appellants should not be surprised when they are then met with a response – even a very forceful response. While such responses do not justify crossing the line into defamatory speech, they are a factor to consider in assessing the level of damages that the defamatory aspect of the response may create. As Binnie J. said in WIC Radio, at para. 4:
We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones.
[71] As I concluded with respect to the Al Jazeera motion, the appellants have failed to lead evidence of any specific harm or any level of serious harm. Balanced against whatever harm may be presumed, is the public interest in protecting freedom of expression and in having robust debates on matters of public importance. I agree with the motion judge that the appellants failed to establish, in the words of s. 137.1(4)(b), that “the harm likely to be or have been suffered by the [appellants] as a result of [the respondent’s] expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression”.


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