The Ontario Court of Appeal has upheld an $80,000 libel judgment against conservative provocateur and former lawyer Ezra Levant.
|Gil Zvulony says the decision highlights how important context and motivation are in defamation cases.|
The blog posts concerned hearings at the B.C. Human Rights Commission that came out of a dispute between Maclean’s magazine and Awan when he was a law student at Osgoode Hall Law School.
Awan and three other students filed a complaint at the Ontario Human Rights Commission, as well as the Canadian Human Rights Commission, over a 2006 Maclean’s cover story they said was Islamophobic.
Mohamed Elmasry, the president of the Canadian Islamic Congress at the time, filed a third complaint in B.C., and Awan testified at hearings in that matter. The complaint was later dismissed.
Levant live-blogged the first two days of the hearing, and he subsequently published nine blogs that spurred Awan to launch his libel suit.
Levant had frequently written about Elmasry, a controversial figure, who had made a statement in 2004 “suggesting that all adult Israelis were valid targets of violence,” according to the decision.
In blog posts, Levant called Awan a “serial liar.” He also said Awan, who used to be the youth president of the Canadian Islamic Congress, was an anti-Semite. He called Elmasry an “anti-Semite-in-chief” and said Awan was Elmasry’s protégé.
Levant argued that his words were not defamatory because of his reputation “as someone who is provocative and controversial.” He also tried to defend his statements under fair comment, contending they were not intended as statement of fact but as opinion.
Matheson found Levant’s statements accusing Awan of being a liar and an anti-Semite were defamatory. She found some of his other statements could come under fair comment but that Levant was motivated by malice, and as such, the fair comment defence would not apply.
Matheson also determined that Levant had made little or no effort to fact-check his statements.
She ordered Levant to take down the defamatory posts and awarded $50,000 in general damages, as well as $30,000 in aggravated damages, to Awan.
Levant appealed the damages, as well as the judge’s finding that the posts were libellous.
The Court of Appeal disagreed with Matheson’s characterization of Levant’s statements that Awan was an anti-Semite as statement of fact, saying they were opinion. But the court upheld Matheson’s finding that Levant was motivated by malice, defeating the fair comment defence.
“Although the trial judge erred in her characterization of the appellant’s blog statement that the respondent was an anti-Semite as a statement of fact rather than opinion, the defence of fair comment cannot apply if the statement was made, as the trial judge found, with malice,” Justice Kathryn Feldman wrote in the decision.
Brian Shiller, the lawyer representing Awan, says the decision is further confirmation that what Levant said about his client was false and defamatory.
“The most important result you can achieve in a defamation case for a plaintiff is vindication of their good name,” he says.
The Court of Appeal also upheld the damages Matheson awarded.
Gil Zvulony, a Toronto defamation lawyer, says the decision highlights how important context and motivation are in defamation cases, as the claim could have been defeated if there was not a finding of malice.
“The words at issue in a defamation case don’t stand alone,” he says.
“You have to look at the context in which they were written and you also have to look at the motivation of the speaker.”
In an email, Levant said he intends to apply for leave to appeal the decision to the Supreme Court of Canada.
On one of his websites, Levant said the Court of Appeal ruling has implications for freedom of expression.
“I’m worried that this ruling sets a precedent, and it is now legally dangerous to call out an anti-Semite as anti-Semitic,” he wrote.
Shiller, however, says that is not the case, as Levant could not factually support his assertion that Awan was an anti-Semite.
“Mr. Levant is a very clever wordsmith and I don’t believe the decision stands for that,” he says of Levant’s comment.
An Alberta court has ordered a journalist to disclose the identity of a confidential source to a law firm that is suing him for defamation.
W. Scott Schlosser, a Master of the Court of Queen’s Bench of Alberta, has ruled Fort McMurray Today columnist Kevin Thornton must provide information about a source who provided him documents for columns he wrote about the Alberta-based firm Stringam Denecky LLP.
The firm is suing Sun Media Corporation, which owns Fort McMurray Today, over three columns Thornton wrote about a dispute the firm had with one of its clients over costs.
Alberta media lawyer Matthew Woodley says the decision, if not overturned on appeal, could have a chilling effect on whether potential sources will come forward with information in the future.
“The risk is that it will have an impact on how sources or potential sources, more importantly, in the future will view the protections that are available to them and their willingness to come forward to provide information in the public interest,” says Woodley, who was not involved in the case.
Thornton’s columns addressed a dispute involving a client in a family law matter who was charged around $70,000 in bills by Stringam Denecky. The client appealed the fees to an assessment officer.
In the meantime, the client’s affidavit in the matter, which was a public document, was given to Thornton, who then used it to write columns about the high cost of legal representation in family law cases.
When Stringam Denecky brought legal action against Thornton, Sun Media refused to produce the identity of the source in the early stages of the proceedings, citing journalistic source privilege.
The source had requested confidentiality at the time they provided the documents, which Thornton granted. In his affidavit, Thornton said confidentiality was essential to his relationship with the source and to his ability to obtain the court document that led to the columns.
Lawyers representing Sun Media Corporation argued that the lawsuit is mainly about Thornton’s opinion in the pieces and not the underlying facts.
Schlosser, however, found that the identity of the source should be disclosed as it could be central to Stringam Denecky’s case against Sun Media, as it could prove or disprove the firm’s claim of malice, recklessness or improper purpose.
Dean Jobb, a journalism professor at the University of King’s College, says the decision shows the limits on what journalists can hold back in terms of their sources. He says one of the places journalists cannot protect sources is when the journalist and media organization are subject to litigation.
“It’s a reminder to journalists that they haven’t been granted any kind of blanket or carte blanche right to protect sources,” says Jobb, who wrote Media Law for Canadian Journalists.
In making his determination, Schlosser analyzed the “Four Wigmore Factors” and found that while Thornton’s communication with the source originated in confidence, and that anonymity was essential to the relationship, the public interest in disclosing the name of the source outweighed that of protecting their identity.
“Counsel should be permitted to explore the identity and the situation of the source, given the centrality of the issue to their case and the circumstances of the promised confidentiality,” he wrote in the decision.
Schlosser noted that the affidavit provided were public and that it is not clear how confidentiality is central to the production of the documents.
“It is not difficult to see why someone might want to keep their name out of the paper, but there is a gap between this request and blanket protection claimed,” he said.
Woodley says the case is unusual, as the source simply provided a publically available document. In a traditional confidential source case, the reason that plaintiffs typically want to get the identity of a source is that the journalist relied upon information the source told them, says Woodley.
“It requires a judge to find that even if the source really did have an axe to grind, that malice or motive translates into what the journalist did, and I think that’s a step that is not necessarily based on logic,” he says.
“So it does make it a less probative or relevant information than it would be in other traditional source cases.”
Edmonton lawyer Sara Hart, who is representing Sun Media, says her client is appealing the decision, but she declined to comment further on the decision.
James Heelan, the lawyer representing the law firm, also declined comment.
The New Year could bring a steady increase in hiring for Canada’s legal landscape, according to a new survey.
|Sara Lutecki, division director of Robert Half Legal, says in-house legal departments are looking to take on more work themselves.|
“In-house legal departments especially are looking to take on more of the work themselves as opposed to outsourcing. Because of that law firms have to be more competitive to offer more,” says Sara Lutecki, division director of Robert Half Legal.
“So they want the top talent with each… it’s a lot harder for them to retain that top talent. So that’s why they have to add a little bit more.”
The survey canvassed 150 lawyers in hiring positions, half of which are employed at law firms with 20 or more employees and the other half are in-house lawyers at companies with more than 1,000 employees.
Of those surveyed, 48 per cent said they expect their organizations will maintain and fill vacated positions. Only 12 per cent said they expected a freeze on hiring and three per cent said they expect a reduction in positions.
The survey also found most new job opportunities are expected to come from litigation. When asked which practice area lawyers think the most new jobs will come from, 31 per cent of respondents said litigation and 26 per cent said corporate law.
The survey found respondents expected 14 per cent of the new legal jobs would be in real estate.
Lutecki says a rise in in-house legal departments taking on their own insurance defense likely accounts for some of the increase.
Warren Bongard, president and co-founder of ZSA Legal Recruitment, says the survey is fairly consistent with what he expects to see in the coming year, but he does not think the rise in litigation positions will come at big firms.
“I see more alternative options to getting litigation done,” he says.
Both Lutecki and Bongard say they expect a higher increase of real estate jobs than is reflected in the survey because of the ever-booming real estate industry.
“There’s been a shortage of well trained real estate lawyers in the country,” Bongard says.
The survey also found that 55 per cent of lawyers said finding skilled legal professionals is somewhat or very challenging. A further 33 per cent said they were concerned about losing lawyers to other opportunities in the next six months.
This may sound like welcome news to young lawyers looking for a job, but Lutecki says they have found most firms hiring are looking for highly skilled lawyers with at least five years of experience in areas such as commercial litigation and insurance defense.
“The one trend that we have seen firms do is hire on a project basis and that is to see what needs they have and if they do have an opening for a permanent position. I have had a lot of more junior lawyers start out in roles like that,” she says.
The Standing Senate Committee on Legal and Constitutional Affairs has asked for the Supreme Court of Canada to clarify a decision that set caps on court delays.
|Lawyer Dan Stein says senators are ‘jumping the gun.'|
In the decision, the Supreme Court set limits on the amount of time a case could take from the time a person is charged until trial. The decision implemented a limit of 30 months in superior courts and 18 months in provincial courts.
Charges must be stayed in cases that have delays that exceed these limits, except for certain exceptions. There have now been two murder charges stayed under the framework recently, prompting the senate committee’s demand for clarity.
“Although the court said the transitional provisions were intended to prevent thousands of cases already before the courts from being thrown out by applying a new standard, rather than the law that existed at the time, there have been numerous cases halted in recent weeks, including at least two murders,” the committee said in a press release.
In a recent Ontario Superior Court decision that stayed a murder charge, R. v. Picard, Justice Julianne Parfett says the transitional provisions allow for the new framework “to be applied contextually and flexibly” to older cases.
“While the new framework is relatively simple to apply, the transitional guidelines are not,” she said in the decision.
Dan Stein, a Toronto defense lawyer, says the senate committee is “jumping the gun” in its request and that it should give the higher courts a chance to clarify the law.
He says the Picard decision will likely be heard in the Ontario Court of Appeal, and could make its way up to the Supreme Court.
“The senate should give a chance to the court of appeal to analyze this and perhaps as well for the Supreme Court to revisit,” Stein says.
In an interim report on the delays in the justice system released this summer, the senate committee called on the federal government to immediately fill all judicial vacancies and to work with its provincial counterparts to develop better case management and invest in court technology.
Ontario’s provincial government recently took its own crack at tackling backlogs, by announcing a number of measures such as appointing more judges and hiring new Crown attorneys.
The Roundtable of Diversity Associations held its sixth annual diversity soirée on Tuesday Nov. 29 at the offices of the Ontario Bar Association.
In a pair of decisions, the Supreme Court of Canada has reaffirmed robust protections for solicitor-client privilege, while elevating litigation privilege.
|Lawyer David Rankin says ‘it’s very clear that a very high standard is required to abrogate privilege.’|
In Lizotte v. Aviva Insurance Company of Canada, the Supreme Court upheld a 2015 Quebec Court of Appeal ruling that determined a provincial regulator could not have access to information Aviva Insurance claimed was protected by litigation privilege.
Quebec’s damage insurance regulator, Chambre de l’assurance de dommages, had requested certain documents from Aviva about a claims adjuster in an ethics enquiry. Aviva withheld some documents citing litigation privilege, as a client had brought legal proceedings against the company, which involved the same claims adjuster.
The Supreme Court found the regulator could not abrogate litigation privilege by inference and that “clear, explicit and unequivocal language is required in order to lift it.”
By applying the same standard to litigation privilege as solicitor-client privilege, Adam Dodek, a law professor at the University of Ottawa, says the decision brings litigation privilege closer to solicitor-client privilege, which is considered more absolute.
In a 2006 decision, Blank v. Canada, the Supreme Court distinguished the two privileges as distinct doctrines, deeming litigation was a lesser privilege.
“The court pays homage to that decision, but these two decisions bring the doctrines closer together and collectively continue the trend of strengthening solicitor-client privilege and elevating litigation privilege to a status closer to solicitor-client privilege,” says Dodek, who wrote Solicitor-Client Privilege, a book referenced in the Supreme Court decision.
“The fact that same test is embraced for abrogating litigation privilege as for solicitor-client privilege is significant.”
In the second decision released Friday, Alberta v. University of Calgary, the court determined a provincial regulator could not abrogate solicitor-client privilege on inference.
“…solicitor-client privilege cannot be set aside by inference but only by legislative language that is clear, explicit and unequivocal,” Justice Suzanne Côté wrote for the majority in the decision.
The decision concerned a dispute that arose when a former employee, who filed a lawsuit against the University of Calgary for wrongful dismissal, requested information about her in the university’s possession. The university released some information, but withheld some records, which it considered protected by solicitor-client privilege.
A delegate from the province’s privacy commissioner then ordered the university to produce the records.
At issue was whether a section of the province’s freedom of information legislation, which required records be handed over to the privacy commissioner despite “any privilege of the law of evidence,” trump solicitor-client privilege.
The Supreme Court found that the legislation was not clear enough to abrogate privilege.
“In the present case, the provision at issue does not meet this standard and therefore fails to evince clear and unambiguous legislative intent to set aside solicitor-client privilege,” Côté said.
“It is well established that solicitor-client privilege is no longer merely a privilege of the law of evidence, having evolved into a substantive protection.”
David Rankin, a lawyer with Osler Hoskin & Harcourt LLP, says the decision reaffirms the protection of solicitor-client privilege.
“The way Justice Côté reasoned, it’s very clear that a very high standard is required to abrogate privilege, which is a very significant development,” says Rankin, who represented the Canadian Bar Association in its intervening on both cases.
Former Toronto Maple Leafs player Mike Zigomanis has won a lawsuit against D’Angelo Brands after the company terminated its promotional contract with him over a nude photo scandal.
|Eli Lederman of Lenczner Slaght Royce Smith Griffin LLP says if a company wants to include a morality clause in an agreement it should make sure to structure it as broadly as possible.|
The company also cited Zigomanis’ demotion to a minor league team as a reason it terminated the contract. Zigomanis played the first eight games of the 2010-2011 season for the Maple Leafs before being sent down to the team’s American Hockey League affiliate, the Toronto Marlies.
Zigomanis sued for wrongful termination and demanded $162,000 in unpaid income.
The contract contained a termination clause that gave D’Angelo the right to termination if Zigomanis was convicted of a crime, spoke ill of the company in public, or committed “any act which shocks, insults of offends the community, or which has the effect of ridiculing public morals and decency.”
The contract, however, made no mention of any requirement that Zigomanis play for the Maple Leafs for its duration.
D’Angelo Brands argued that the nude photo incident should fall under the “morals clause.”
Stinson, however, found the incident could not fall under the clause as the nude photos were taken before the contract was signed in May 2011.
“For the defendant to rely on past conduct as justification for termination, is an attempt to insert into the contract an additional clause amounting to a warranty of past good conduct,” Stinson wrote in the decision.
As D’Angelo Brands had not inserted a clause concerning Zigomanis’ past personal conduct, the incident could not be applied retroactively, Stinson said.
Stinson also said that Zigomanis had an expectation of privacy when he sent the photos.
“In recent years, new methods of communication have emerged that enable individuals to exchange information via email, text message and in numerous other ways,” Stinson wrote.
“Many people choose to privately exchange intimate information and photographs in this fashion. This reality has been recognized and the privacy of such communications has been protected by the Parliament of Canada.”
Toronto lawyer Eli Lederman says the takeaway from the decision is that if a company includes a morality clause in an agreement, it should make sure to structure it as broadly as possible so that it covers conduct that predates and postdates the signing of the contract.
“If a contracting party wishes to protect itself in order to terminate a contract based on past conduct, then that would need to be expressly spelled out in the agreement,” says Lederman, a partner at Lenczner Slaght Royce Smith Griffin LLP, who was not involved in the case.
David Whitten, the lawyer who represented Zigomanis, and Gregory Hemsworth, who acted for D’Angelo Brands, did not respond to requests for comment.
A Quebec lawyer has been denied leave by the Supreme Court of Canada in a motion to have her former firm barred from representing her former nanny pro bono in a $24,000 lawsuit.
|Jacqueline Sanderson sued her former live-in nanny and then filed a motion to bar her former firm from acting pro bono for the nanny.|
Jacqueline Sanderson was denied leave on Thursday for her motion to remove a lawyer from Davies Ward Philliips & Vineberg LLP, where she worked for seven years, off the case in which she sued her former live-in nanny.
Sanderson argued that having the Davies lawyer, Leon Moubayed, act on the case was a conflict of interest.
Earlier this year, the Quebec Court of Appeal reversed a decision by the Court of Quebec that prohibited Moubayed from representing the nanny, May Ostos Mangadlao. The appeals court found that Mangadlao had a right to choose her lawyer.
“It’s a fundamental right for the client to be able to choose his or her lawyer and that’s the basic principle,” says Sylvain Lussier, the lawyer who represented Mangadlao on the appeal.
“It is not for the lawyer and it’s not for the client to justify why. You don’t have to tell the court.”
Sanderson argues that while the nanny has the constitutional right to be represented by a lawyer, she does not have the right to choose a lawyer if there is a conflict of interest.
Sanderson sued Mangadlao, who worked for her between 2011 and 2013, for leaving without giving proper notice, resulting in alleged lost business opportunities.
Sanderson said she launched the lawsuit only after Mangadlao had filed a number of actions against her in the Quebec Human Rights Tribunal and the province’s labour standards commission.
She says she filed her suit as a counter claim to Mangadlao’s actions, as she could not do so in those tribunals.
“It was more like a countersuit, because she’s suing me,” she says.
She then filed a motion to have Moubayed disqualified when she found out he was acting for Mangadlao.
Sanderson has argued that Moubayed’s involvement in the case presents a conflict of interest as Davies still has confidential information about her. Sanderson worked at Davies until 2005, when she says she was fired.
Lussier, who is a partner at Osler Hoskin & Harcourt LLP, says Moubayed does not have to justify why it’s appropriate for him to represent her or why he took the case pro bono.
“As a question of principle, we don’t have to tell her. It’s none of her business,” he says of Sanderson.
“At the end of the day, it is also a matter of solicitor-client privilege. It’s the relationship between the client and the lawyer and the lawyer doesn’t have to justify the mandate,” he adds.
He also says that the motivation of the lawyer for representing Mangadlao is not grounds for disqualifying him.
Lussier says he was shocked to hear Sanderson had applied for leave to appeal her $24,000 case to the Supreme Court of Canada.
Moubayed declined to comment on the case, citing confidentiality orders that are in place.
Lawyers say a $2.5 million class action lawsuit against an auto parts maker highlights the need for employers to alert the Ministry of Labour early when closing down a facility.
|Plaintiff lawyer Stephen Moreau, a partner with Cavalluzzo Shilton McIntyre Cornish LLP, says an auto parts maker neglected to inform the Ministry of Labour of a plant losing.|
Nearly 100 auto parts workers are represented on the lawsuit, which was brought against their former employer, CTS of Canada Co., after it shut down its Mississauga plant in 2015.
The workers recently filed a summary judgment motion against CTS to have their day in court without having to go to trial.
The claim alleged the American car parts manufacturer failed to give them proper notice when it closed down the plant to sell the land and move its operations to Mexico and China.
At issue is whether CTS filed a Form 1 with the Ministry of Labour when the company gave its employees notice the plant would be closing.
Under the Employment Standards Act, employers who lay off more than 50 employees must submit the form to the ministry in order for their notice of mass termination to come into effect.
A copy of the form must also be posted in the workplace on the first day of the notice period in addition to providing employees with individual notice.
“Form 1, even though it’s a technical requirement, it’s part of a scheme that is supposed to apply when you have group notice under the act. It’s an important part of it because it gives the Ministry of Labour notice of what’s happening,” says Landon Young, the managing partner of Stringer LLP, who is not involved in the case.
In their claim, the workers alleged CTS did not file the form, rendering their severance letters null and void.
“What we’ve alleged and I think we’ve clearly proven here is they neglected to actually inform the Ministry of Labour that this plant was closing,” says the plaintiffs’ lawyer, Stephen Moreau, a partner with Cavalluzzo Shilton McIntyre Cornish LLP.
“When you close a plant, you’re supposed to tell the Ministry of Labour so that the labour ministry can get involved and help people reintegrate into the workforce.”
CTS announced the plant would close in Feb. 2014, which was more than a year before the intended closure date. In April of that year, the company gave individual severance letters to its employees, letting them know the plant would stop manufacturing by March 2015.
In their statement of defence, CTS said that the company discovered “its error” in not submitting a Form 1 initially and did so in May 2015, informing the ministry of their plans to close the plant in June.
CTS argued that the fact that the Form 1 was not submitted at the time the severance letters were issued did not void them, as they were only required to submit a Form 1 within four weeks of closure.
“CTS denies that any of the Plaintiffs were wrongfully dismissed,” said the company’s statement of defence.
“CTS states that all of the Plaintiffs received reasonable notice of the termination of their employment and many of them received far greater than reasonable notice of the termination of their employment due to the extended length of the working notice period provided.”
Moreau says the fact that CTS was nearly 13 months late in filing its Form 1 meant that the Ministry of Labour could not conduct the proper employment services for the employees.
“The notice is not a trifling matter,” he says.
Employment lawyers say this case highlights the importance of filing a Form 1 early in the process.
“That’s an essential first step. That’s the first thing we do is we get the client to fill out that form,” says Hendrik Nieuwland, a partner at Shields O’Donnell MacKillop LLP, who is not involved in the case.
Nieuwland says that if the claim is successful, giving workers one year of advanced working notice might have all been for nothing and that the employer might end up having to pay the former employees minimum notice amounts in addition to the year of work they completed.
Kristin Taylor, of Cassels Brock & Blackwell LLP, who has represented CTS in the class action proceedings, declined to comment, as the lawsuit, which was certified in January, is ongoing.
The plaintiffs expect their summary judgment motion will be heard in July 2017.
Subscribe to Legal Feeds
- Gabrielle Giroday
- Patricia Cancilla
- Alexia Kapralos
- Jennifer Brown
- Elizabeth Raymer
- Mallory Hendry
- Alex Robinson
- Tim Wilbur
- Karen Lorimer