Justice Morgan rules in favour of Theresa Kielburger in SLAPP Case Against Canadaland and Jesse Brown

CITATION: Kielburger v. Canadaland Inc., 2024 ONSC 2622 

COURT FILE NO.: CV-21-00671189-0000 

DATE: 20240508 

SUPERIOR COURT OF JUSTICE - ONTARIO 

RE: THERESA KIELBURGER, Plaintiff 

– and – 

CANADALAND INC., JESSE BROWN, OLUSOLA ADEOGUN, ISABEL  VINCENT, MARK SLUTSKY, JAREN KERR, JONATHAN GOLDSBIE AND  KIERAN OUDSHOORN., Defendants 

BEFORE: Justice E.M. Morgan  

COUNSEL: Peter Downard, Lily MacLeod, and William McDowell, for the Plaintiff 

Brendan Hughes, for the Defendants, Canadaland Inc., Jesse Brown, Olusola  Adeogun, Mark Slutsky, Jaren Kerr, Jonathan Goldsbie, and Kieran Oudshoorn 

Iain A.C. MacKinnon, for the Defendant, Isabel Vincent 

HEARD: April 23, 2024 

ANTI-SLAPP MOTION 

[1] This defamation action is in respect of a podcast produced by journalist Jesse Brown  (“Brown”) and his media company, Canadaland Inc. and several other Defendants who are related  individuals and employees (collectively “Canadaland”). The podcast was broadcast in August  2021 and transcribed and posted on Canadaland’s website. It contained narrative and an interview  by Brown with another well-known journalist who is not otherwise part of the Canadaland team, 

Isabel Vincent (“Vincent”). 

[2] Brown/Canadaland and Vincent move to dismiss this action under section 137.1 of the  Courts of Justice Act, RSO 1990, c. C.43 (“CJA”). 

[3] The Plaintiff is the mother of Craig Kielburger (“Craig”) who, together with his brother  Marc, established the WE Charity and related companies commonly known as the WE  Organization. The WE Organization, along with the Kielburger brothers, have achieved a level of  notoriety in Canada with parliamentary hearings and the publication of a parliamentary report into  certain public contracts granted to the organization and allegations of conflict of interest: Dion,  Mario, Morneau II Report (Ottawa: Office of the Conflict of Interest and Ethics Commissioner, July 2021), at 38–45.

[4] It is the Defendants’ view that the within defamation action is strategic litigation – a SLAPP  suit, as it is commonly known – designed to put an end to any further public debate or journalistic  investigations into the history and finances of the Kielburgers and the WE Organization. They  submit that the impugned podcast followed years of letters threatening litigation by lawyers for  the WE Organization, and that the present lawsuit is a culmination of those threats. 

[5] It is the Plaintiff’s view that the Canadaland podcast and Vincent’s participation therein,  when considered in the scheme of Canadaland’s continuous coverage of WE and its principals,  contains known and intentionally repeated falsehoods. She submits that it is not investigative  reporting as it merely repeats stories that have been published before. The Plaintiff further submits,  pointing to the fact that the impugned Canadaland podcast is part of a series entitled “True Crime”, that it is part of a smear campaign rather than bona fide journalism.  

I. The 1996 article 

[6] In August 1996, Saturday Night magazine published an article about the still young WE  Organization, then called Free the Children, written by Vincent. Even at that time, the Plaintiff’s  son Craig, at the age of 12 years old, had already reached a surprising level of world fame with his  anti-child labour campaign. The magazine’s cover had a photo of Craig holding a globe, with the  headline “The most powerful kid in the world.” 

[7] Shortly after its publication, the Plaintiff served a Libel Notice on Vincent and Saturday  Night, and six months later a Statement of Clain was issued with Craig, but not his mother, as  plaintiff (the “SN Claim”). The focus of the claim was an allegation contained in the article about  the handling of funds by the Plaintiff on behalf of the young organization. According to the  Plaintiff, a central portion of the Saturday Night article – what the Plaintiff and her counsel have  dubbed the “Money Passage” – suggests a level of financial manipulation and corruption on the  Plaintiff’s and her family’s part:  

Though donations to the cause continue to pour in. On November 21, 1995, before  Craig went to South Asia and upstaged the prime minister, he attended an Ontario  Federation of Labour (OFL) convention in Toronto where members spontaneously  pledged $150,000, most of which has gone towards building a rehabilitation centre  for freed child slaves in India, says Mrs. Kielburger. The money goes directly to  the Kielburger family. Free the Children is not a legally registered charity in  Canada. Mrs. Kielburger says they are in the process of applying for registered status.  

[8] The SN Claim asserted that the meaning of the Money Passage was that “donations are  pouring in, they go directly to the Kielburger family (including the pledge of $150,000 by members  of the OFL) and the Kielburgers do not account to anyone for them”, and that “the money is not  used for the purposes for which it was donated”. It is now acknowledged that the statement that  the funds from the OFL went “directly to the Kielburger family” was untrue.  

[9] When interviewed by Vincent in advance of the Saturday Night article, the Plaintiff had  explained that she did not handle the money for Free the Children and that neither the organization nor anyone in her family had access to the funds. That explanation did not find its way into the  Saturday Night article.  

[10] Furthermore, the Kielburgers’ accountant, Mac McArthur, wrote Saturday Night a letter  dated on November 1, 1996 in which he explained the banking arrangements for Free the Children: 

I keep the financial records for FREE THE CHILDREN. Isabel Vincent’s claims  about money from the ONTARIO FEDERATION OF LABOUR are just wrong.  And damaging. Odd that she or one of the editors of SATURDAY NIGHT never  thought to get in touch with me. I think Jane Armstrong of the OFL has already  contacted SATURDAY NIGHT. There is a trust account that is managed by the  OFL, and not by the Kielburgers. The records here are open to anyone that wants  to investigate! 

[11] Mr. MacArthur’s note was followed up by a letter to Saturday Night’s editor sent by the  OFL’s Jane Armstrong on November 11, 1996:  

I am appalled by the article on Craig Kielburger and Free the Children in Saturday  Night (November 1996). I am particularly disturbed by the factual error in the  sentence, ‘The money goes directly to the Kielburger family.’ The cheque for the  project the Ontario Labour Federation supported was made out to the agency in  India responsible for the funds. The reporter interviewed me and media coverage  would have verified that the cheque was presented to the representative of SACCS  at the CLC convention in Vancouver - with 2,000 witnesses present… While  reporters do make mistakes now and again, this article appears to be a deliberate  attempt to try and destroy the reputation of individuals and the organization, Free  the Children.  

[12] In July 1999, counsel for Criag served an Offer to Settle the SN Claim. That Offer proposed  that either the defendants in that action – i.e. Saturday Night and Vincent – “consent to judgment  in the terms hereof”, or, alternatively, “publish a full and fair apology and retraction for the libel”. The parties were unable to arrive at an apology and retraction satisfactory all parties; instead, the  defendants agreed to pay Craig $319,000 in return for an order dismissing the action. 

[13] Since Craig was still a minor in 1999, the settlement had to be approved by the Court. The  dismissal order was issued by Justice Cameron, who directed that the costs portion of the  settlement funds be paid to Craig’s counsel and that the damages portion be paid into Court to  Craig’s credit when he became of age. The record indicates that the defendants had asked for the  settlement to remain confidential, but counsel for Craig refused that request.  

[14] In his response to the confidentiality request, Craig’s counsel specifically referenced the  reasons for decision in Hunger Project v. Council on Mind Abuse (C.O.M.A.) Inc., 1995 CanLII  7145 (SCJ). In that case, the Court observed, at paras. 31-32, that in a libel action a “judgment for  damages, being both judicial vindication and a dollar award…” It is clear from the reported reasons  for decision, at paras. 1-2, that Hunter Project differed from the SN Claim in one important way – the offer to settle there had been rejected by the defendant and the matter had gone all the way to  trial with damages awarded against, rather than a settlement payment agreed to by, the defendant. 

Nevertheless, counsel for Craig in the SN Claim took the “judicial vindication” phrase in Hunter  Project to be a principle applicable to a settlement as well as a judgement on the merits. 

[15] The record before me contains no response to this correspondence from counsel for the  defendants in the SN Claim. The Order ending that action was issued and, in the usual course, is  not confidential. No release or apology or any other mutual acknowledgment of the result was  provided by either side. 

II. The 2021 podcast 

[16] Canadaland’s August 2021 podcast, in which Brown was host and Vincent was a guest, revisited the 1996-1999 controversy. The Money Passage that had been the subject of the SN Claim was repeated as a theme of the podcast. Brown and Canadaland promoted the podcast with the  preview line: “The White Saviors True Crime”. The Canadaland website page for the show states:  “right from the start there were uncomfortable questions about money...” 

[17] The podcast itself followed up on this teaser by, in essence, repeating, with one caveat, the  false statement that had been the subject of the SN Claim: 

Vincent reported that Theresa Kielburger strategized Craig’s press conferences.  She also booked his $5,000 for 30-minute speaking appearances, and she deposited  hundreds of thousands of dollars in donations directly into the family’s personal  bank account. Vincent didn’t accuse the family of stealing, but she did point out  that they accepted large charitable donations before they were a legally registered  charity. 

[18] Plaintiff’s counsel submits that the added words, “Vincent didn’t accuse the family of  stealing”, did nothing to contradict Brown’s and Canadaland’s statement that hundreds of  thousands of dollars donated for a charitable purpose had not been handled appropriately. It is the  Plaintiff’s view that, despite this attempt at a qualifier on the meaning of the original Money  Passage, the logical implication that the funds were misappropriated or otherwise misused remained intact.  

[19] From the Plaintiff’s perspective, Brown’s and Canadaland’s incorrect reference to the  funds being deposited into the Plaintiff’s family account, without any accompanying reference to  the information obtained from the We Organization’s accountant and from the OFL’s  spokesperson about where the funds were actually deposited, constitutes a repetition of the 1996  libel. Plaintiff’s counsel also note that neither Brown nor anyone else at Canadaland ever reached  out to the Plaintiff for comment, and never contacted her for a response to the allegations that were  again being made in the August 2021 podcast. 

[20] The Plaintiff’s second complaint about the Canadaland podcast has to do with what she  views as Vincent’s on-air mischaracterization of the SN Claim settlement and Craig’s description  of that settlement. Craig had announced that the payment agreed to by Saturday Night in ending  the SN Claim represented “vindication” of him and his organization. When asked about this by  Brown in the August 2021 podcast, Vincent responded that Craig’s characterization “really wasn’t  the truth.” As she explained it, “because the case never went forward. I mean, I think we went to  discovery and then it kind of ended there.” 

[21] It is the Plaintiff’s view that Vincent’s words misdescribe the SN Claim settlement. As  indicated, the proposed settlement was originally put to Saturday Night and Vincent as a form of  vindication. Plaintiff’s counsel submit that Craig’s offer, and its acceptance without qualification  and without confidentiality, is indicative of Saturday Night’s and Vinent’s acceptance of that  understanding.  

[22] Plaintiff’s counsel further contend that Vincent’s characterization of the settlement suggests that Saturday Night may have indeed published the truth since, as they see it, it expresses  that the Money Passage allegation has never been resolved to anyone’s satisfaction. When that  meaning is attributed to Vincent’s statement, her words can potentially be taken to diminish not  only Craig’s reputation but the Plaintiff’s as well. After all, although Craig brought the SN Claim  on his own, the central allegation of defamation in that claim – the Money Passage – equally  addressed the Plaintiff and her handling of charitable funds on her sons’ behalf. 

[23] Vincent, by contrast, posits a different, and rather banal explanation for Saturday Night’s  and her 1999 agreement to the SN Claim settlement. She says that the agreement was reached as  an economic convenience – that the owner of Saturday Night was in the process of making a major  business investment in acquiring a daily newspaper, and his bankers required him to be free of all  potential liabilities. Her ‘truth’ about that settlement was that it was handled on her behalf by  Saturday Night and was dealt with as a business matter by the magazine and its owner, and not as  a journalistic or reputational matter. 

[24] While this does not accord with Craig and his lawyer’s view of the settlement in 1999 and  the Plaintiff’s view of that settlement today, it does accord with lawyers’ and others’ general  understanding of many settlement agreements. A dismissal order such as the one issued in 1999 in  the SN Claim, absent any release or written apology, could be the result not of an assessment of  the merits of the case but of strictly economic factors.  

[25] Plaintiff’s counsel point out that Canadaland’s podcasts draw a substantial audience. The  series on the We Organization and the Kielburgers is no exception. Brown stated in cross examination that Canadaland’s podcasts were downloaded 7,928,412 times in 2021. Downloads  of the Kielburger series constituted 6% of the total – i.e. 475,705 downloads, the most frequent of  which is the first one featuring the interview with Vincent. These podcases are accessible to the  listening audience without charge. The transcript of the podcast is available on Canadaland’s  website. 

III. The section 137.1 test 

[26] Sections 137.1(3) and (4) of the CJA provide: 

(3) On motion by a person against whom a proceeding is brought, a judge shall,  subject to subsection (4), dismiss the proceeding against the person if the person  satisfies the judge that the proceeding arises from an expression made by the person  that relates to a matter of public interest. 

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding  party satisfies the judge that,

(a) there are grounds to believe that, 

(i) the proceeding has substantial merit, and 

(ii) the moving party has no valid defence in the proceeding; and 

(b) the harm likely to be or have been suffered by the responding party as  a result of the moving party’s expression is sufficiently serious that the  public interest in permitting the proceeding to continue outweighs the public  interest in protecting that expression. 

a) Public interest 

[27] The first part of the test is met by the Defendants. The Plaintiff concedes that the issue of  whether a large amount of money donated for charitable purposes was diverted to private use is a  subject in which a significant segment of the community would have a genuine interest in receiving  information: 1704604 Ontario Ltd. v. Pointes Protection Association, [2020] 2 SCR 587, at para.  27.  

[28] This stage of the test requires no further analysis of the impugned statements. As the  Supreme Court instructed in Pointes Protection, at para. 28, “it is not legally relevant whether the  expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the  public interest — there is no qualitative assessment of the expression at this stage.” 

b) Substantial merit 

[29] At the next stage, the onus shifts to the Plaintiff as respondent to the section 137.1 motion.  “If the responding party cannot satisfy the motion judge that it has met its burden, then  the s. 137.1 motion will be granted and the underlying proceeding will be consequently  dismissed”: Ibid., at para. 18. 

[30] Subsections 137.1(4)(a) and (b) provide for a two-part analysis of the substantial merit test.  In the first place, the Plaintiff must show that there are grounds to believe that there is substantial  merit to the claim. This part of the test is phrased in a way that emphasizes that the test is a  preliminary screening of the merits of the action, not a fulsome or definitive analysis of it. In fact,  the Supreme Court of Canada has admonished that a motion court is to “engage in only limited  weighing of the evidence and should defer ultimate assessments of credibility and other questions  requiring a deep dive into the evidence to a later stage, where judicial powers of inquiry are broader  and pleadings more fully developed”: Ibid., at para. 52.  

[31] Turning first to the merits portion of the test, a libel claim has three components which the  Plaintiff must satisfy to be successful: three elements: 1) that the impugned words refer to the  Plaintiff; 2) that the impugned words have been published or broadcast to a third party; and 3) that  the impugned words are defamatory in the sense that they tend to lower the plaintiff’s reputation  in the eyes of reasonable persons: Grant v. Torstar Corp., [2009] 3 SCR 640, at para. 28. As  McLachlin CJ pointed out, to establish liability “the plaintiff is not required to show that the  defendant intended to do harm, or even that the defendant was careless”: Ibid.

[32] The first two issues are established by the Plaintiff on the face of the claim and the  Canadaland podcast. The Defendants cannot, and do not, deny that the impugned words refer to  the Plaintiff, Ms. Kielburger. As noted above, the controversial portion of the podcast started with  the phrase, “Vincent reported that Theresa Kielburger…” 

[33] Likewise, it is self-evident that the podcast was disseminated to third parties. It was  broadcast over the internet and published on Canadaland’s website. Canadaland has a substantial audience and this particular episode was widely heard and read.  

[34] As for the Plaintiff’s allegation that the impugned portions of the podcast were defamatory,  this is to be evaluated with a view to its meaning to “the ordinary, reasonable, fair-minded reader”:  Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 SCR 3, at para. 62. Plaintiff’s counsel  submit that this includes implied or indirect meanings that one might draw from the expression at  issue, including inferential meanings and interpretations flowing from the impugned phrases:  Morgan v. Odhams Press Ltd., [1971] 2 All ER 1156, at 1162-63, 1170, 1185 (HL). The “sting”  of the libel “must be determined from the perspective of a ‘reasonable viewer or reader’”: Hill v.  Church of Scientology of Toronto, [1995] 2 SCR 1130, at para. 27. 

[35] The repetition in the podcast that the Plaintiff deposited into her family’s personal bank  account funds in the hundreds of thousands of dollars that were donated for a charitable purpose meets this test. While it is accurate to say, as Brown did, that Vincent did not directly accuse the  Plaintiff of theft, at least one meaning it conveys – indeed, the most obvious meaning –is that the  Plaintiff misused or manipulated the donated funds for an improper personal gain. 

[36] To emphasize the point, it is clear to me that there would be nothing newsworthy, and  nothing to attract a listener or reader to a podcast, if the sole meaning were the one given to it by  the Defendants – i.e. that the funds were received when the charity was in the process of being  registered and so in the ordinary course another account was used as a convenience. The “sting”,  as both the House of Lords and the Supreme Court of Canada have said, is in the inference of  improper conduct and mishandling of substantial funds on the Plaintiff’s part. 

[37] Plaintiffs’ counsel go on to argue that the sting of this comment was magnified by the  suggestion by Vincent in the podcast that Craig’s and his family’s rights and reputation were not  vindicated by the settlement of the SN Claim. The Plaintiff says that it is noteworthy that Vincent’s  statement to this effect was made in the context of Brown first indicating that the former editor of  Saturday Night still “stands by the story”. Counsel for the Plaintiff submit that the sting is further  emphasized by Canadaland’s and Vincent’s expressed view that the SN Claim had been brought  not for the purpose of vindicating a wrongfully damaged reputation, but to “send a message” in  the sense of a warning or threat that criticism will not be tolerated.  

[38] The Plaintiff also takes the view that both Brown/Canadaland and Vincent were equal  participants in these defamatory statements. Plaintiff’s counsel characterizes this as a joint tort for  which both tortfeasors are responsible: Lysko v. Braley (2006), 79 OR (3d) 721, at para. 104 (CA).  As the Supreme Court has observed, “If one person writes a libel, another repeats it, and a third  approves what is written, they all have made the defamatory libel. Both the person who originally  utters the defamatory statement, and the individual who expresses agreement with it, are liable for  the injury”: Hill, at para. 176.

[39] The evidence in the record supports a listener’s or reader’s reasonable understanding that  Canadaland, and Brown as its host, conveyed that the 1996 Money Passage was true and that the  Plaintiff had misappropriated or improperly handled large money donations. It is far less clear that  Vincent participated in these statements. Her words were carefully chosen and she did not  comment on or summarize or repeat the Money Passage the way Brown did.  

[40] Likewise, Vincent’s statement, or repetition of the statement, that the Kielburgers engage  in litigation in order to “send a message”, should not be understood by anyone as being libelous. Everyone who engages in litigation does so to send a message to the person they view as the  wrongdoer. And it is in the very nature of libel cases that the message claimant also intends to send  a message to those who read or heard the libel. The Plaintiff’s insistence that the 1999 settlement  needed to be made pubic in order to vindicate Craig’s rights and reputation makes this point. The  plaintiff in a libel action – whether it is Craig in the SN Claim, the Plaintiff in the present action,  or anyone else – engages in litigation to send a message to all that their reputation was sullied and  that the defendant’s words were harmful and wrong. 

[41] By contrast, a reasonable listener could possibly find that Vincent’s comment with respect  to Craig’s announcement of the 1999 settlement lowered Craig’s reputation and, perhaps by  extension, the Plaintiff’s. Vincent’s characterization of Craig’s understanding that the settlement  equalled vindication as being contrary to “the truth” can be understood in two ways. Some might  take Vincent to mean that Craig was a liar and that the Saturday Night article had told the truth  about the Plaintiff’s mishandling of charitable money; others might take Vincent to mean that she  simply disagrees with Craig’s version of the settlement and that she has her own view of it. The  latter meaning would not be libelous while the former one would be; in the circumstances, either  meaning is plausible and either understanding could be reached by a reasonable listener or reader. 

[42] Accordingly, for the purposes of section 137.1(4)(a)(i) of the CJA, there is substantial merit to the Plaintiff’s claim in respect of Brown’s and Canadaland’s repetition of the Money Passage,  but there is no merit in the Plaintiff’s allegation that Vincent participated in that aspect of the  podcast. The impugned words in respect of the Money Passage repetition are those of Brown and  Canadaland alone.  

[43] On the other hand, there is merit in the claim as it relates to Vincent’s statement that Craig’s  characterization of the SN Claim settlement as vindication “really wasn’t the truth.” At least one  understanding of that comment, although not necessarily Vincent’s own understanding or  meaning, is a libelous one. In contrast to that, there is no merit to the Plaintiff’s claim in respect  of Vincent’s statement that the Plaintiff and her family members engage in or warn about litigation  in order to “send a message”. That comment is not libelous under any reasonable understanding.  

c) No valid defence 

[44] As with the substantial merit portion of the s. 137.1 test, the ‘no valid defence’ test in s.  137.1(4)(a)(ii) of the CJA does not require a full-blown analysis of any and all possible defenses  that the Defendants might raise. The Plaintiff must show not that the Defendants’ defenses fail,  but rather that there are grounds to believe that there are no valid defences available to the  Defendants.

[45] The Defendants raise three potential defences to the present claim: privilege, responsible  communication and reportage, and fair comment.  

i) Privilege 

[46] In the first place, the Defendants assert that the impugned statements by Brown and Vincent  in the Canadaland podcast are privileged as a report of proceedings in court. They rely on the  explanation of the Supreme Court of Canada of the applicable common law rule: “The rule of law  is that, where there are judicial proceedings before a properly constituted judicial tribunal  exercising its jurisdiction in open court, then the publication without malice of a fair and accurate  report of what takes place before that tribunal is privileged”: Hill, at para 150, quoting Gatley on  Libel and Slander (8th ed. 1981), at 252. 

[47] This approach is based on the democratic need for transparency and the policy that court proceedings should be capable of being scrutinized by the public. As the Supreme Court has noted,  in this respect section 2(b) of the Charter protects listeners as well as speakers: Edmonton Journal  v. Alberta (Attorney General), [1989] 2 SCR 1326, at 1338-40. That said, the privilege extends  only to direct reports of proceedings in court; it does not extend to pleadings filed before the matter  gets to court or to summaries of or opinions about court proceedings whose publication is not part  of the open courts policy: Douglas v. Tucker, [1952] 1 SCR 275, at 286. 

[48] Plaintiff’s counsel point out that the statement by Brown/Canadaland that the Plaintiff “deposited hundreds of thousands of dollars in donations directly into the family’s personal bank  account” does not amount to a privileged report of proceedings in open court. It was, if anything,  a restatement, in slightly different words, of the Money Passage that had appeared in the 1996  Saturday Night article. Those words were the subject matter of the SN Claim, but that matter never  reached court. Its repetition, or paraphrase, is not cloaked in the privilege it might have received  had it come directly from a court hearing.  

[49] In much the same way, the other statement in the podcast to which there is some merit in  calling it defamatory – Vincent’s description of Craig’s characterization of the SN Claim settlement and dismissal order – is not reportage from a court proceeding. It is a gloss on one  aspect of the previous legal proceeding, but it is not unadorned reportage of a case in court. 

[50] There are, therefore, no grounds for believing that there is a valid defence of privilege in  the circumstances of this case. 

ii) Responsible communication/reportage 

[51] The Defendants, and, in particular, Canadaland, also contend that they have a defence of responsible communication in the present action. That defence, as explained by the Supreme Court, has two components: “First, the publication must be on a matter of public interest. Second,  the defendant must show that publication was responsible, in that he or she was diligent in trying  to verify the allegation(s), having regard to all the relevant circumstances”: Grant, supra, at 98. 

[52] As indicated above, there is no doubt that the subject matter of the Canadaland podcast and  the impugned words contained therein are of considerable public interest. The Kielburgers and the We Organization have been at the centre of national political controversy in which the public has  shown a keen interest.  

[53] Importantly, however, the courts have insisted that in order to make out a responsible  communication defence, the media “have an obligation to adequately investigate a story to be  published, to ensure the accuracy of the facts about any person referred to in the story, and to  obtain that person’s side of the story”: Shtaif v. Toronto Life Publishing Co. Ltd., 2013 ONCA  405, at para. 82. Plaintiff’s counsel submit that this crucial element of fairness – the ‘responsible’  component of the responsible communication defence – was omitted by the Defendants. 

[54] In preparing the podcast, the Defendants never contacted the Plaintiff. As a result, they  never gave her an opportunity to refute the assertion that she had “deposited hundreds of thousands  of dollars directly into the family’s personal bank account.” Brown’s explanation of this oversight  was that the Plaintiff herself was not a party to the earlier lawsuit, and so it did not seem relevant  to him to ask her to respond to the statement he was planning to broadcast.  

[55] Whether the Plaintiff was a party to the earlier action, however, is obviously not the issue;  the point is that a statement about the Plaintiff has to be put to the Plaintiff so that she can respond.  A broadcaster’s duty of fairness extends to any and all targets of their broadcast, not only to those  who had previously sued them. 

[56] As an aspect of responsible communication, the Defendants also argue that their words in  the podcast amount to “reportage”. In principle, reportage exception provides that “the repetition  rule does not apply to fairly reported statements whose public interest lies in the fact that they were  made rather than in their truth or falsity”: Grant, at para. 120. Having said that, the Supreme Court  has a number of qualifiers to this exception from liability: Ibid. The report is considered  responsible commentary, and there is no liability even if the reported words are defamatory, if: 

(1) the report attributes the statement to a person, preferably identified, thereby  avoiding total unaccountability; (2) the report indicates, expressly or implicitly, that  its truth has not been verified; (3) the report sets out both sides of the dispute fairly;  and (4) the report provides the context in which the statements were made. 

[57] Plaintiff’s counsel submit that the requirements of this defence have not been met since it  is impossible to say that the podcast sets out both sides fairly. The best example of this is that there  is no mention anywhere of the correspondence that the accountant, Mr. MacArthur, or the OFL’s  president, Jane Armstrong, had sent to Saturday Night.  

[58] The information conveyed in those letters refutes the impugned statement by in  Canadaland’s podcast, and it does so explicitly from the one source that is authoritative on the  subject. For Canadaland to have left this important point out of its story undermines any factual  objectivity that the broadcast may claim.  

[59] Taken as a whole, there is no reason to believe that the defences of responsible  communication or objective “reportage” will be found to be applicable to the Canadaland podcast. 

iii) Fair comment

[60] Finally, the Defendants invoke the defence of fair comment. The elements of that defence  were set out in their most recent incarnation by Justice Binnie in WIC Radio Ltd. v. Simpson,  [2008] 2 SCR 420, at para. 28: 

(a) the comment must be on a matter of public interest; 

(b) the comment must be based on fact; 

(c) the comment, though it can include inferences of fact, must be recognisable as  comment; 

(d) the comment must satisfy the following objective test: could any [person]  honestly express that opinion on the proved facts? 

(e) even though the comment satisfies the objective test the defence can be  defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice. 

[61] The essence of the fair comment defence – the feature that distinguishes it from responsible  communication or reportage – is that it has a distinctly subjective aspect. To qualify as fair  comment, the statement must be, as described by the Supreme Court of Canada, “a mere matter of  opinion, and so incapable of definite proof”: Hansman v. Neufeld, 2023 SCC 14, at para. 108. 

[62] A statement of fact is capable of being determined to be accurate or inaccurate, while the  same determination cannot be made with respect to an opinion based on the personal perspective  or preferences of the speaker. ‘The apple is green’ can be responsible communication or objective  reportage if true, but not if false; ‘I like green apples’ is not objective and so cannot be proven true or false. 

[63] At the centre of the Plaintiff’s claim is one sentence spoken by Brown in the Canadaland  podcast which is identified as crucial to the alleged libel: the statement that the Plaintiff “deposited  hundreds of thousands of dollars in donations directly into the family's personal bank account.” On its face, that statement is one of fact, not opinion. If true it can be verified as true, and if false  it can be exposed as false. The bank account documents and those who deposited money there will  reveal the factually correct version of events. 

[64] While this is not the place for any definitive finding on the merits, the evidence in the  record goes a long way toward establishing that this repetition of the Money Passage is untrue.  Brown and Canadaland were aware of, but never mentioned, the accountant’s letter and the OFL’s  letter that appear to disprove this allegation about where the funds were deposited. The Plaintiff  has reason to believe that Brown, Canadaland, and its related Defendants have no defence of fair  comment with respect to this statement. 

[65] Turning to Vincent’s impugned words, they are centred on her statement that Craig  Kielburger was not victorious in the 1990s SN Claim and that Craig’s characterization of the 1999 settlement of that claim is not the truth. In my reading, this statement is far closer to opinion than  fact. While the Plaintiff is convinced, understandably, that the purpose of the settlement with  Saturday Night was to vindicate Craig’s and the entire family’s reputation, that was not necessarily 

the view on the opposing side of that litigation. In view of the two opposing perspectives on the  settlement, Vincent appears to have been was using the word “truth” either in its most strictly  literal form, as in there was no SN Claim trial and thus no judicial vindication, or in its colloquial  form as an expression of opinion, as in ‘my truth’ vs. ‘his truth’.  

[66] Either way, Vincent’s statement can be read as expressing her understanding that the  purpose of the settlement was to relieve the owner of Saturday Night of a financial burden and  nothing more. The settlement, absent a release and apology, was documented only by the dismissal Order – a perfunctory, neutral document that says little about the parties’ relationship or  understanding. A reasonable person – especially one who has some knowledge and experience of  litigation in general, could readily conclude that Vincent’s view is her entirely plausible opinion  of the matter. 

[67] Plaintiff’s counsel go on to argue that even if the statement about being victorious in the  SN Claim settlement is one of opinion, it is based on an inaccurate factual premise. In this, they  rely on the Supreme Court’s observation in WIC Radio, supra, at para 31, that “[i]f the factual  foundation is unstated or unknown, or turns out to be false, the fair comment defence is not  available.” Plaintiff’s counsel then point to Vincent’s statement in the podcast that the SN Claim settled after discoveries, when, in fact, it settled before discoveries.

They state that this is demonstrably untrue, and that his falsehood undermines any fairness in Vincent’s opinion or  comment about the nature and meaning of the settlement.  

[68] With respect, Plaintiff’s counsel’s characterization of Vincent’s comment is, for want of a  better description, far too legalistic. In stating that, “I think we went to discovery and then it kind  of ended there”, Vincent’s language was self-evidently more casual than formal or technical. From  the point of view of the Rules and the stages of a civil action, Vincent’s recollection was indeed  faulty; the action settled after pleadings closed but prior to examinationsfor discovery taking place. But under the circumstances, and for the lay person, the distinction between pre-discovery and  post-discovery is one without any real difference.  

[69] It is clear from the causal way in which the statement was made that what Vincent meant  – ineloquently for a lawyer but understandable for a non-lawyer – was that the action had not even  proceeded through all of the pre-trial steps before it settled, and was therefore never adjudicated  on its merits. Vincent was not making a technical point about the procedural steps the parties had  undertaken; rather, she was making a more general comment on the claim and about its having  come to a sudden and inconclusive end. This view, of course, supports her opinion that Craig was  wrong about the settlement being a form of vindication. In her view, the 1999 order implementing  the settlement was a value neutral step that ended the litigation without a finding of liability. 

[70] On this basis, there is reason to believe that while Brown and Canadaland have no valid  defence of fair comment, Vincent does have the prospect of a valid defence of fair comment. Brown’s words in repeating the Money Passage take the form of a statement of fact and the fair  comment defence does not apply. Vincent’s words in saying that Craig mischaracterized the SN Claim settlement take the form of an opinion, and the defence of fair comment therefore can apply  to them. Vincent’s subjective understanding of her statement affords her the possibility of a fair  comment defence.

d) Weighing the public interest 

[71] The Supreme Court observed in Pointes Protection, at para. 61, the “crux” of the anti SLAPP analysis is found in s. 137.1(4)(b) of the CJA. It is in that subsection that “allows motion  judges to assess how allowing individuals or organizations to vindicate their rights through a  lawsuit — a fundamental value in its own right in a democracy — affects, in turn, freedom of  expression”: Bent v. Platnick, [2020] 2 SCR 645, at para. 139. The contest, in other words, is  between two different aspects of the public interest. 

[72] In the case at bar, the Plaintiff must demonstrate on a balance of probabilities that she  “likely has suffered or will suffer harm, that such harm is a result of the expression established  under s. 137.1(3), and that the corresponding public interest in allowing the underlying proceeding  to continue outweighs the deleterious effects on expression and public participation”: Pointes  Protection, at para. 82 [emphasis in original]. The first question, therefore, is whether the Plaintiff  is likely to have suffered or to prospectively suffer harm.  

[73] It is to be kept in mind that general damages are presumed in defamations actions, and,  ordinarily, this alone is sufficient to constitute harm: Brent, at para. 144, citing Pointes Protection,  at para. 71 and Grant, at para. 28. That said, the extent of the harm is significant here in that it is  one ingredient in weighing whether the harm is so serious that the public interest in allowing the  defamation action to proceed outweighs the public interest in protecting the expression: Pointes  Protection, at para. 70. 

[74] In assessing the magnitude of the harm, one must recall that not all harm takes the form of  direct pecuniary loss. In fact, in defamation cases, the most severe form of harm is generally  considered to be reputational damage. “A good reputation is closely related to the innate  worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of  expression, be protected by society’s laws”: Hill, at para. 107.  

[75] Even if not measured in lost income or profits, the harm inflicted by defamatory words is  recognized by the law as being very real. Accordingly, “[t]he purpose of the general damages  award is to compensate the plaintiff for loss of reputation and injury to the plaintiff’s feelings, to  console the plaintiff, and to vindicate the plaintiff so that the plaintiff’s reputation may be re established”: Bent, at para. 148, quoting Downard, Peter A. The Law of Libel in Canada, 4th ed.  (Toronto: LexisNexis, 2018), at §14.2. 

[76] The record leaves me with little doubt about the Plaintiff having experienced an injury to her feelings. She views the repetition of the allegation contained in the Money Passage as an  indictment of her honesty tantamount to an accusation of theft or fraud.  

[77] In cross-examination, the Plaintiff gave an impromptu, emotional, and apparently heartfelt  explanation of the pain she feels in caring for her granddaughter knowing that the child may one  day be exposed to the allegation in the podcast that she misappropriated charitable funds. She  explained on the record that she has spent her life trying to do good in her family and in society,  and to have what she views as character assassination broadcast to an audience and published on  the internet for posterity is a very personal form of harm.

[78] The Plaintiff’s testimony in this respect was credible and impactful. It was especially  poignant in comparison with the callous disregard of reputation and personal damage expressed  by Brown toward the Plaintiff. In attempting to explain why he and Canadaland never sought the  Plaintiff’s response to the repeated Money Passage allegation, Brown stated in his sworn affidavit:  “[W]e did not seek comment [from the Plaintiff] for the same reason why I didn't seek comment  from my own mother; neither of them were involved.” 

[79] The statement implies that from Brown’s point of view the Plaintiff’s feelings are worth nothing; he was only concerned to cover himself and his company in the event of an allegation by  Craig as former plaintiff in the SN Claim. The fact that he was speaking about the Plaintiff, and imposing personal pain on the Plaintiff by repeating an allegation about her that he was aware had  been seriously contested, if not established as entirely false, was seen by him as irrelevant. The  cynicism of Brown’s explanation not only accentuates the defamatory sting of his words, but could  be considered high handed and oppressive: Hill, at paras. 188-190. 

[80] Although the alleged defamation is of an elderly Plaintiff who is no longer active in a  business or profession, and so the harm cannot be readily quantified in the way that a business or  income loss can be quantified, it is personal and severe. The Plaintiff’s testimony is that it goes to  the core of her self-worth and her dignity. As Justice Coté stated in Pointes Protection, at para. 71,  “the question here relates to the existence of harm, not its quantification” [emphasis in original]. 

[81] Once it is established that there is harm to the Plaintiff that flows from the impugned  expression, section 137.1(4)(b) requires that the harm and the public interest in having the action  proceed be weighed against the public interest in not silencing the expression: Ibid., at para. 73.  Importantly, the analysis of the public interest at this stage of the anti-SLAPP test is somewhat  different than in section 137.1(3), where any public interest will satisfy the requirement. Instead,  in section 137l1(4)(b), the Court has instructed that “the quality of the expression, and  the motivation behind it, are relevant here”: Ibid., at para. 74 [emphasis in original].  

[82] This stage of the inquiry benefits from examining the impugned expression in light of the  core values underlying freedom of expression: “the search for truth, participation in political  decision making, and diversity in forms of self-fulfillment and human flourishing”: Pointes  Protection, at para. 77, citing R. v. Sharpe, [2001] 1 SCR 45, at para. 182; Thomson Newspapers  Co. v. Canada (Attorney General), [1998] 1 SCR 877, at para. 24. The closer the expression is to  any of these core values, the greater the public interest in protecting it. 

[83] Brown’s sarcasm with respect to the impact of his words on the Plaintiff suggests that there  is little public benefit to be gained or serious public interest in his portrayal of her. While the  operations of the We Organization and its principals in the Kielburger family have occupied a  place close to the pinnacle of Canadian politics and are certainly of public interest, the Plaintiff’s  dignity as a worthy and law abiding human being is not in that category.  

[84] The courts have confirmed that “gratuitous insults of a serious nature would tilt the balance  away from public interest even if the apparent subject matter itself…is itself clearly in relation to  a matter of public interest”: Able Translations Ltd. v. Express International Translations Inc., 2016  ONSC 6785, at para. 98, aff’d 2018 ONCA 690. In my view, this principle is apt in the present  context. 

[85] As already indicated, the courts have repeatedly made it clear that a libel award need not  be limited to pecuniary loss or even professional or business reputation: see Rutman v. Rabinowitz,  2016 ONSC 5864, at para. 215, aff’d 2018 ONCA 80. There is a personal element to this type of  conduct such that liability in libel can: “a) take account of the distress, hurt and humiliation which  the defamatory publication has caused; b) compensate [her] for the damage to [her] reputation;  and c) vindicate [her] good name.” 

[86] The Plaintiff’s pained response to Brown’s statements and the Canadaland podcast fits well within this description. 

[87] The evidence in the record enables me to draw an inference that the likelihood of harm to  the Plaintiff is of a magnitude that is greater than the public interest in protecting the impugned expression: Hansman v. Neufeld, 2023 SCC 14, at para. 67. Since the essence of the defamation  alleged against Brown and Canadaland is the personal attack on the Plaintiff’s character more than  any genuine discourse on the We Organization and its role in Canadian politics, the need for the  Plaintiff to vindicate her reputational rights outweighs the need for a public airing of the impugned words. 

IV. Conclusion 

[88] There is reason to believe that there is substantial merit in the claim against Brown and  Canadaland based on the restatement of the Money Passage; in addition, there is no reason to believe that Brown and Canadaland have any valid defence. There is also reason to believe that  the harm likely to be or have been suffered by the Plaintiff as a result of Brown’s and Canadaland’s  expression is sufficiently serious that the public interest in permitting the action to continue  outweighs the public interest in protecting that expression. 

[89] There is reason to believe that there may be some merit in the claim against Vincent based  on her “really wasn’t the truth” statement about the SN Claim settlement and whether it represents  vindication; however, there is also reason to believe that she has a valid defence of fair comment.  In light of the existence of a defence, there is no further need to engage in any weighing of the harm to the Plaintiff as a result of Vincent’s expression as against the public interest in protecting  that expression.  

V. Disposition 

[90] The motion by Brown and Canadaland is dismissed. The action will proceed against them. [91] The motion by Vincent is granted. The action is dismissed as against her.

VI. Costs 

[92] The parties may make written submissions on costs.  

[93] Since the results are mixed, the sequence of the exchange of submissions on costs is of no  particular relevance. I would ask all three sets of counsel to email brief written costs submissions  to my assistant within two weeks of today. Counsel for the Plaintiff should indicate separately in 

their Bill of Costs the amount attributable to the claim against Brown/Canadaland and the amount  attributable to the claim against Vincent.  

Date: May 8, 2024 Morgan J.