August 30, 2018
Able Translations Ltd v Express International Translations Inc 2018 ONCA 690
The appellant, Able Translations Ltd. sued the respondent, Philippe Vitu and his company, Express International Translations Inc. for defamation. The respondents successfully moved under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, for an order dismissing the action. The motion judge awarded costs to the respondents in the amount of $30,000 on a full indemnity basis.
Able commenced a defamation action in September 2015. The Amended Statement of Claim referred to an internet post made by Mr. Vitu on August 31, 2015, allegedly on his own behalf and on behalf of Express. Able alleged that the post falsely claimed that Able was “disreputable in its business dealings and insolvent”. Able further alleged that the defamatory comments were made vindictively and to advance the respondents’ financial interests. Able contended that the respondents were competitors of Able.
On the s. 137.1 motion, Able led evidence of a second post by Mr. Vitu on the same day (August 31, 2015) and on the same website as the first post. There was no evidence before the motion judge of the content of any posts made by Mr. Vitu or Express other than the two posts made on August 31.
The first August 31 post by Mr. Vitu is headed “Press Conference to Denounce ABLE”. The contents are set out in full by the motion judge (para. 12). In the post, Mr. Vitu identifies Peter Fonseca as a candidate in the ongoing federal election. Mr. Vitu also identifies Mr. Fonseca as a former vice-president of Able. The post continues: He [Fonseca] must know about ABLE’s business and image and is part of it. Therefore, his claims as a candidate have no credibility. I suggest that we organize and hold a press conference in Mississauga about 10 days to 2 weeks before the election (end of Sept., first days of October) to denounce FONSECA. We would invite a report from the Toronto Star, the Toronto Sun and Mississauga News. I would need as many of you as possible to enlighten the press about your experience with ABLE because people have to know. I would be pissed that a guy that is part of the ABLE clique be elected to Ottawa.
The motion judge correctly articulated the meaning of “public interest” in s. 137.1(3): see 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, at paras. 50-66 (released concurrently with these reasons). His reasons (at para. 26) lean heavily on Grant v. Torstar Corp., 2009 SCC 61,  3 S.C.R. 640, the guiding authority. Able’s complaint is that the motion judge misapprehended the meaning of the posts. I approach this submission by asking whether the posts could reasonably bear the interpretation that the motion judge ascribed to them: see Pointes, at para. 66.
I would not interfere with the motion judge’s finding that the posts referred to a matter of public interest. Nor would I interfere with his finding in relation to the public interest analysis required under s. 137.1(4)(b). Those two determinations lead to the dismissal of the appeal. I need not decide whether the motion judge was correct in his merits analysis under s. 137.1(4)(a)…