This is an appeal of the motion judge’s dismissal of the appellants defamation action; the reasons and summary are here: Hamer v Doe, 2023 ONSC 4837.
The appellant operates a Roo Roo Cat Rescue, a rehabilitation and adoption service. They began an action against the respondents for negative social media posts and associated comments that alleged or suggested that the appellants were mistreating cats under their care and that Hamer was a cat hoarder with mental health issues.
The appellants allege that the motion judge committed a legal error by misapplying the criteria under s. 137.1(a) and (b) of the CJA and treated the respondents motion as a motion for a summary judgement. The court held that the motion judge’s analysis did not adequately consider both legislative purposes underlying s. 137.1 of the CJA by focusing on the protection of free speech to the exclusion of the protection of one’s reputation through a court action. Furthermore, the court held that the motion judge erred when they dismissed the action against the respondents. This was compounded by dismissing the entire action. S. 137.1 states that the action may be dismissed against only the moving party, not other defendants who may be participating in a motion.
The respondents (Defendants in the original action) position was that that the statements were expressions on matters of public interest, protected by defences such as fair comment, justification, and responsible communication. They argued that the plaintiffs failed to demonstrate substantial harm.
The Court determined that the motion judge had failed to properly assess the cumulative effect of the impugned statements and mischaracterized the potential harm caused by the defamation. The social media posts alleged that the plaintiffs were mentally unstable and mistreated animals. This led to an improper analysis of the defences and the harm caused (paras. 59-61). It found that the motion judge had improperly dismissed the appellants’ evidence of harm, including the rescue’s and individual’s reputation and psychological harm, by imposing an unduly high evidentiary burden (paras. 103-110). The defamatory statements, which devolved into personal attacks, were of low public interest value and outweighed by the harm to the appellants’ professional reputation: “the impugned expression was unnecessary to convey the animal welfare message… the respondents could have expressed their concerns about the appellants’ activities without resort to the extreme and defamatory language that was used in the impugned statements. There is a significant difference between, on the one hand, providing others with a descriptive account of the animal welfare concerns with the appellants’ activities, and on the other hand, calling Ms. Hamer a mentally unstable cat hoarder who harms or kills cats in the appellants’ care” (para. 121).
The Court allowed the appeal and set aside the dismissal of the action, including the motion judge’s costs award in favour of the respondents. The Court found the appellants were entirely successful on this appeal and would therefore be entitled to their costs of the appeal from the appellants in the all-inclusive agreed upon amount of $14,644.46
https://canlii.ca/t/k74nw