August 30, 2018
Armstrong v Corus Entertainment Inc 2018 ONCA 689
In 2014, William Armstrong, a candidate for city councillor in London, Ontario, sued his opponent, Nancy McSloy, for defamation. He also sued members of her campaign team and the local radio station. The claims arose out of certain remarks made during the municipal campaign.
After the appellants had filed their Statements of Defence, they moved for a dismissal of the action under s. 137.1 of the CJA. The motion judge held that the appellants had satisfied him that the expressions that were the subject matter of Mr. Armstrong’s claims related to “a matter of public interest” as required by s. 137.1(3).
The motion judge (on s. 137.1 motion) concluded that there was substantial merit to Mr. Armstrong’s assertions that the impugned statements, when read as a whole, referred to Mr. Armstrong, were published to others, and bore various defamatory meanings. The motion judge addressed the specific defences that were raised by the personal defendants and by Corus. He concluded there were grounds to believe that none were valid.
As with the merits analysis, the public interest considerations must focus on the claims as advanced against each defendant separately. In assessing the harm done or potentially done to Mr. Armstrong, one must distinguish between comments made through various media outlets to a wide public audience and comments made to a handful of Twitter followers. The motion judge did not draw that distinction, but instead looked at potential harm to Mr. Armstrong globally. He erred in law in doing so.
On the evidence adduced at the motion, Mr. Armstrong demonstrated little, if any, personal or financial harm, real or potential, as a consequence of any of the alleged defamatory statements. He was re-elected, defeating Ms. McSloy and another candidate with “some separation” between himself and the second place candidate. The motion judge, while describing several variations of the derogatory meanings that he said could be taken from the statements, did not identify any specific harm suffered or likely to be suffered by Mr. Armstrong.
Against what I would characterize as modest evidence of harm or potential harm to Mr. Armstrong stands the very strong public interest in promoting freedom of expression by candidates during the electoral process. The public expects and benefits from vigorous debate among candidates. The rhetoric can become personal and overly zealous. No doubt, candidates have in the past, and will in the future, step over the line between strongly stated opinions and defamatory comments. However, the message to be taken from the enactment of s. 137.1 is that not every foot over the defamatory foul line warrants dragging the offender through the litigation process. By enacting s. 137.1, the Legislature acknowledged that, in some circumstances, permitting the wronged party to seek vindication through litigation comes at too high a cost to freedom of expression.