March 25, 2013
Asselin v. McDougall 2013 ONSC 1716
The plaintiff, Michel Asselin, is the Director of Development and Works for the Town of Renfrew. The defendant, Matthew McDougall, is the sole owner and proprietor of Moviemat. Moviemat is primarily in the business of selling pornographic videos and merchandise. Mr. McDougall also operates the YouTube channel, “Moviemat.com” and is the owner of the alias “moviematcanada.” The YouTube channel was used to post the comments by Mr. McDougall and others which gave rise to this action.
In early 2012, Moviemat planned to move its operations to a new location in the heart of the Town of Renfrew, in proximity to commercial and touristic venues. A dispute arose over the necessary permits required to complete the renovation to the property. The defendant posted videos on YouTube with his own comments, and soliciting comments from the viewing public, which were also posted on YouTube. The plaintiff approached YouTube requesting that the material be removed, and was told that it was up to the defendant to remove the material or to restrict access.
The issues on this motion were:
1. Has the Plaintiff met the legal test for an interlocutory injunction in the context of a defamation action?
a. Can it be said that the Defendants are liable for publication of statements made by others?
2. Has the Plaintiff established irreparable harm?
Madam Justice Toscano Roccamo cites Rapp v. McClelland and Stewart Ltd. (1992), 34 O.R. (2d) 452 (Ont. H.C.J.) at p. 455, for the legal test that must be met:
The guiding principle then is, that the injunction should only issue where the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal. To put it another way where it is impossible to say that a reasonable jury must inevitably find the words defamatory, the injunction should not issue.
It was found, at para 37, that the plaintiff had not met his onus “to establish that the statements of opinion of Mr. McDougall are manifestly defamatory and that a jury will inevitably find his words defamatory of the Plaintiff.”
On the issue of whether the defendants are liable for the publication of statements made by others, Madam Justice states, at para 42:
The law is far from settled as to whether or not circumstances such as those before me would constitute publication of defamatory content by the Defendants. In my opinion, I would be intruding upon the domain of the jury to assume, on a limited record, that the Defendants would inevitably be found liable in defamation for the comments of others. It is for the jury to find that the Defendants deliberately adopted and endorsed the opinion of others, having regard to all of the circumstances, including the involvement of others who made comments of a defamatory nature against the Plaintiff and that of YouTube.
And, finally, in considering whether or not the plaintiff had established “irreparable harm” to his reputation, Madam Justice has this to say, at paras. 47-49:
In the case before me, I have not received evidence from the Plaintiff’s employer or colleagues that the statements could place his job in peril. To the contrary, the Town of Renfrew has supported the Plaintiff in these proceedings.
In addition, while the Plaintiff attests to the fact that some of the commentary encourages the public to pry into his personal activities and finances, thereby causing emotional upset to him and his family, I am left to speculate as whether or not this has in fact occurred.
The videos in the case at bar have been viewed 2,351 and 1,544 times respectively, as compared to the 500,000 or more views in the Busseri case. Further, it is important to note the videos in this case received comments supporting both sides of the debate, and that on their YouTube channel, the Defendants specifically provided links to the documents relied upon by the Town of Renfrew and the Plaintiff.