Summary

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Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Torts – Libel and slander – Damages – Aggravated damages – Respondent succeeding in action for libel – Any defence of fair comment found to be defeated by malice – Should a finding of malice no longer be able to defeat a valid defence of fair comment in defamation cases in Canada? – Should malice only be considered when determining whether a person could honestly hold the opinion expressed by the defendant, similar to how courts in the U.K. and New Zealand apply the “honest opinion” defence? – Is it correct in law for a trial judge to find malice against a defendant where there is no finding of actual malice by the defendant toward the plaintiff himself? – Can a defendant’s malice or ill will against someone other than the plaintiff be transferred to a plaintiff for purposes of finding malice? – When considering the defence of fair comment in the context of a blog post, if a defendant describes a plaintiff as a “liar”, is that an expression of opinion or comment, and not a statement of fact? – Should a court take into account the full context of publication when making that determination? – Should aggravated damages be abolished in defamation cases, in accordance with the recommendation of Ontario’s Law Reform Commission?

In 2006, Maclean’s magazine published a cover story entitled “The future belongs to Islam” by a journalist Mark Steyn. Mr. Awan, at the time a law student at Osgoode Hall, became concerned about the content of the article. He and three other law students decided to approach Maclean’s about their concerns and to ask that the magazine publish a reply article by a mutually acceptable author. Maclean’s agreed to meet with them. At the meeting, Maclean’s Editor-in-Chief disagreed with the students’ views of the article. It later became apparent that there were different perceptions about what happened at the meeting with respect to the students’ request that the magazine publish a reply article.

The students responded with a human rights complaint against the publishers in Ontario. Complaints were also filed in British Columbia and with the Canadian Human Rights Commission. Mr. Awan testified at the hearing before the British Columbia Human Rights Tribunal as a fact witness about what happened at the meeting with Maclean’s. Mr. Levant attended the hearing and live-blogged about it. The blog posts referred to Mr. Awan as a “liar” and “anti-Semite” and stated that he was engaged in a “shakedown” of Maclean’s, and that he was in a conflict of interest in the British Columbia proceeding.

Mr. Awan served a libel notice and commenced an action against Mr. Levant in the Ontario Superior Court.

Lower Court Rulings