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1373366 Ontario Inc. v. Hayman et al., 2020 ONSC 4666

The Ontario Superior Court has dismissed another defamation action under s. 137.1 of the Courts of Justice Act. The case concerned a documentary film in which the plaintiff’s business was depicted for 3 seconds in the background of a scene. The plaintiff was not named or otherwise referred to, but the plaintiff alleged that it was defamed by appearing in the background in a portion of the film dealing with human trafficking and “pimping”.

The Court found the plaintiff had not met its burden of showing grounds to believe its claim had substantial merit as a reasonable viewer would not connect the matters discussed in the film with the plaintiff merely because it appeared in the background shot for a fleeting moment. The plaintiff had named as defendants 6 individual investors, in addition to the film’s director.

The Court found that there was no evidence that the investors were publishers and awarded the investors a total of $25,000 in damages, finding that the plaintiff’s decision to name them was for the improper purpose of putting pressure on the greatest number of individuals associated with the film as possible.

The decision may have precedential value in vindicating the expressive freedom of documentary filmmakers and helping them avoid the risk of liability to private enterprises who happen to appear in the background of scenes filmed in public places.