[1]               This decision deals with two appeals, made with leave, in two separate actions, from interlocutory Orders of Justice Snowie dated December 2, 2016.  Both appeals arise from the same set of factual circumstances and the same orders.  The Appellants seek the same relief in both appeals, namely, that the orders be set aside in their entirety.   

[2]               Samuel Ronin (“SR”), respondent/plaintiff in the first action (CV-16-1857 SR) is currently 20 years of age.  When SR turned 18 he determined that he no longer wished to reside with his parents who were relocating from Richmond Hill to Holland Landing.  His decision to leave his parents’ home coincided with the development of a friendship between SR and Vicky Bagwalla (“VB”), the respondent/plaintiff in the second action (CV-16-1874-00), a gentleman in his forties. 

[3]               The Appellants, defendants in both actions, are SR’s parents and siblings, who were and remain concerned about VB’s involvement in SR’s life.  They created a website “WeMissSam.org” in February of 2016.  They also, directly or indirectly, created another webpage on Facebook, and a petition on change.org (collectively “the Websites”).  The Websites are alleged to have sought information about SR’s whereabouts and well-being and were open for public viewing.  From the Facebook page there is a hyperlink to an article on www.yorkregion.com titled “Are York boys being groomed for online exploitation?”  There is also a hyperlink on the Facebook page which will open another article on www.yorkregion.com titled “Heartbroken parents warn how son was lured away”.

[4]               The online petition created by the Appellants is titled “Protect families from having their children brainwashed into joining cult” and has various links back to www.WeMissSam.org.

[5]               Both SR and VB allege the contents of the Websites to be defamatory. 

[6]               In addition, VB and SR allege numerous unwanted communications from the Appellants including an attendance at VB’s residence, an attendance at SR’s residence, an attendance at SR’s school, and physical altercations at the Appellants’ home and at Legend’s Warehouse.  It is further alleged that the Appellants have stalked SR online through an application called “Twitch”, a portal that allowed them to watch SR while he plays video games online.

[7]               SR and VB each brought motions for interlocutory relief.  The motions judge made an order providing for:

[8]               In a separate endorsement also dated December 2, 2016 the motions judge ordered “..a Publication Ban with respect to this case…” until trial.

[9]               Leave to appeal the decision of the motions judge was granted, with the issues defined as follows:

[10]           The Supreme Court of Canada addressed the standard of review on an appeal from the decision of a judge in Housen v. Nikolaisen 2002 SCC 33 (CanLII), [2002] S.C.J. No. 31.  In summary:

[11]           Citing R.J.R. MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at para. 48, the motions judge determined that there are three criteria that must be met before an interlocutory or interim injunction can be granted:  (1) A Preliminary and tentative assessment of the merits of the case, requiring the applicant to either make out a prima facie case or to establish that the claim is not frivolous and vexatious, that is, there is a serious question to be tried and there is a likelihood of a finding of defamation at trial. (2) Whether the applicant will suffer irreparable harm if the injunction is refused.  (3) Which of the two parties will suffer the greater harm from the granting or refusal of the injunction, commonly referred to as the balance of convenience test. She noted that this third test is not related to defamation cases.

[12]           The motions judge then went on to consider all three of the RJR MacDonald tests. As to the first criterion, the motions judge made the following finding:

[13]           As to the second criterion, the motions judge determined that VB’s reputation is crucial to his ability to carry on his business successfully, that the Defendants’ portrayal of him as a sexual predator and sexual groomer of children damages that reputation, and that the injunction was required to prevent further irreparable harm from occurring.

[14]           As to the third criterion, the motions judge found that “Any reasonable person reading the websites in issue and going to the links attached would hide their minor children from Mr. Bagwalla immediately” and that the damage being done to his reputation cannot properly be compensated by money.

[15]           All three criteria having been met, the motions judge granted the requested injunctive relief.

[16]           As to the granting of the Harassment Order, although the motions judge summarized the positions of the parties and granted the requested order, there is no discernible analysis of the rationale that was applied.

[17]           As to the granting of the publication ban, this was relief raised by the judge and granted by her after giving the parties two hours to research the issue and get instructions.  She held that: 

[18]           As noted above, the motions judge applied the three part test for injunctive relief adopted by the Supreme Court of Canada in RJR MacDonald Inc.  However, in Canada (Human Rights Commission) v. Canadian Liberty Net 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626, the Supreme Court of Canada held that the test in RJR MacDonald does not apply to motions for injunctive relief restraining alleged defamation because the test would seldom, if ever, protect controversial speech.  The court cited with approval, the following passage from Injunctions and Specific Performance 92^nd ed. 1992 (loose-leaf)), Robert Sharpe:

[19]           Accordingly, when injunctive relief is sought in the context of a defamation action, the following criteria must be met:

[20]           In my view, the motions judge applied the incorrect test in deciding whether or not injunctive relief should issue in this matter.

[21]           However, the Respondents argue that even if the incorrect test was applied, her findings of fact were sufficient to meet the correct test and there was no palpable and overriding error in those findings of fact.  In support of their position they point, in particular, to the motions judge’s finding that:

[22]           Words are legally defamatory only if, viewed objectively, they tend to lower the reputation of the plaintiff in the estimation of reasonable persons.  [See Bou Malhab v. Diffusion Metromedia CMR Inc., 2011 SCC 9]. 

[23]           The motions judge found that calling someone a career criminal and a child molester is clearly and obviously defamatory.  She agreed that identifying a person as a sexual predator and sexual groomer only serves to lower the estimation of that person in the minds of right-thinking persons.  She found that:  “These allegations have been made directly and or indirectly through Links about sexual predators on the “WeMissSam” website.  These are heinous allegations.”

[24]           Given the decision of the Supreme Court of Canada in Crookes v. Newton, 2011 SCC 47, that, for the purposes of defamation law, making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content, it is of benefit to examine the alleged defamation in the context of the Websites alone, and in the context of the hyperlinked digital articles alone.

[25]           We agree with the Appellants that the Websites alone, read as a whole and assessed on the standard of reasonable persons, do not clearly amount to defamation such as to warrant interlocutory injunctive relief.  Furthermore, the Appellants have pleaded in both actions the defences of justification and fair comment and it cannot be said that such defences will inevitably fail.

[26]           With respect to the hyperlinked digital articles, they, on their own, are not defamatory because they do not refer to the Respondents.  Read on their own, the words used and the circumstances attending their publication are not such as would lead reasonable persons to understand it was VB or SR being referred to.

[27]           However, when the Websites and the hyperlinks are read together it is clear the person referred to in the digital articles as a “man” and “Chas” is in fact VB and that the person referred to in the articles as “Jake” is in fact SR.  In the article “Are York boys being groomed for online exploitation?” a “man” is said to be romancing and luring Jake and to have been found in a variety of places online including websites “related to a secret fraternal society, meet-up sites, on a boys’ youth group as a volunteer and on gay and boy-love websites”.  The article says that “the story of how the teen was lured away is ‘textbook human trafficking”.  In the article “Heartbroken parents warn how son was lured away”, Chas is stated to have an “online proclivity for teenaged boys”, several attempts to connect with a ‘boy-love” blogger, and to have “targeted” Jake.

[28]           Although the terms child molester, sexual predator and sexual groomer are not found in the articles, the inference to be gleaned from the articles is undeniable.  Once the persons referred to in the articles are identified, the motions judge’s finding that the allegations within are clearly capable and likely of being found defamatory is entitled to deference.  Certainly she made no palpable and overriding error in that respect.

[29]           If a strict interpretation of the court’s decision in Crookes is taken, VB would be without remedy even though the combined effect of the digital articles and the Websites results in defamation.  However, the court in Crookes went on to hold as follows: 

[30]           In my view, this is a case warranting that scrutiny.  Although the Websites do not repeat the defamatory content of the digital articles, they render the digital articles defamatory by effectively identifying the persons who would otherwise have remained anonymous.  In my view, utilization of the hyperlinks to that effect amounts to publication sufficient to warrant the application of the law of defamation.

[31]           With respect to the second test, I have noted that the Appellants have pleaded the defences of justification and fair comment in both actions.  However, in my view the evidence falls well short of establishing either defence.  On the record before me both defences would inevitably fail.

[32]           With respect to the third criteria, irreparable harm, the motions judge made a finding that VB has suffered and will continue to suffer irreparable harm as a result of the Websites which includes the hyperlinked articles.  There was evidence to support that finding. There is no palpable and overriding error.

[33]           However, the granting of injunctive relief in the context of a defamation action requires a balancing of the right to freedom of expression with the right to legal protection from defamatory publication.  To the extent possible, the right to freedom of expression is to be preserved and the limits on that right minimized. 

[34]           Given that the Websites and the hyperlinks when considered independently do not amount to defamation, the order of the motions judge to have all of the websites taken down was overbroad and constituted an unwarranted restraint on the Appellants’ freedom of expression.  In my view, the conflicting interests are adequately served by an order requiring the Appellants to delete from their Websites any hyperlink or other reference to the digital articles.

[35]           The decision of the motions judge does not specify the basis for the Harassment Injunction that she ordered. 

[36]           The Appellants argue that the only potentially actionable wrong alleged by the Respondents is harassment and that the evidence falls well short of establishing a serious issue to be tried in that respect.

[37]           The Respondents argue that a party seeking an injunction to prohibit harassment need only satisfy the court that there are reasonable grounds to fear for his or her safety.  They cite Shawyer v. Shawyer, [2016] O.J. No. 707 as authority for this proposition and for the general principles to be considered and applied when determining if those reasonable grounds exist.  As an alternative, they allege harassment and intrusion upon seclusion as the underlying bases for the injunction.

[38]           It is appropriate to differentiate among the various non-harassment orders, restraining orders and harassment injunctions that may be available under the law.

[39]           Firstly, under section 46 of the Family Law Act and section 35 of the Children’s Law Reform Act, a court may make a restraining order if the applicant has reasonable grounds to fear for his or her own safety.  This is the standard suggested by the Respondents.  However, the Respondents did not seek a restraining order under either of these acts, and have not pleaded or suggested them as a basis for relief.

[40]           Secondly, section 810 of the Canadian Criminal Code provides a procedure by which an applicant who fears on reasonable grounds that another person will cause him personal harm can apply for an order requiring that person to enter into a recognizance to keep the peace and be of good behavior.  The Respondents have not initiated this procedure.

[41]           Thirdly, an injunction may be sought in the context of a civil dispute.  An injunction is relief.  In the context of civil proceedings, relief may be granted by the court where there has been an actionable wrong.  Typically an actionable wrong arises from a breach of contract or from the commission of a tort.  The only potential actionable wrongs discernible from the Respondents’ Statements of Claim are the torts of harassment and intrusion upon seclusion.

[42]           To obtain a temporary harassment injunction in the context of these civil proceedings, the Respondents would have to meet the three part test in RJR MacDonald:  (1) That there is a serious issue to be tried; (2) That they will suffer irreparable harm if the injunction is not granted; and (3) The balance of convenience favours the granting of the injunction.

[43]           Assuming for the moment that the tort of harassment is a tort recognized by law, among its essential elements would be an intention on the part of the alleged tortfeasor to cause emotional distress or a reckless disregard as to whether or not his actions cause emotional distress and severe or extreme emotional distress by the party complaining. [See McHale v. HMTQ (2014 ONSC 5179) and Savino v. Shelstowsky (2013) ONSC 4394)].  There is a significant issue of whether the required intent can be found in this case, and no evidence of extreme emotional distress on the part of the Respondents.  Accordingly, there is no prima facie case of harassment and no basis for injunctive relief.

[44]           The tort of inclusion upon seclusion has been determined to exist in Ontario and requires the establishment of three elements:  (1) That the Defendant’s conduct must be intentional, which would include recklessness; (2) The Defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; (3) That a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish.

[45]           SR makes the following allegations in support of his claim of intrusion upon seclusion;  First, that his parents and siblings attended a social event he was attending at Legend’s Warehouse in December of 2015; Secondly, that his parents attended Seneca College in an attempt to determine if he was a student there; Thirdly, that they watched him play video games online through the portal “Twitch”; and Fourthly that his brother attended at his home and the home of VB in attempts to make contact with him.

[46]           There can be no doubt that the actions of the Appellants were voluntary.  It is less clear whether those actions had the effect of invading SR’s private affairs or concerns.  There was no reasonable expectation of privacy at the social event.  There was only an attempt to invade his personal affairs at Seneca College.  There was no expectation of privacy when playing the online video games viewed through Twitch. No contact was made when his brother attended at his home.  To the extent there can be said to have been an invasion of Sam’s private affairs or concerns such invasion was certainly not highly offensive.  In my view there is no prima facie case of intrusion upon seclusion and no basis for injunctive relief.

[47]           The open court principle requires that court proceedings presumptively be open and accessible to the public and to the media.  This principle has been described as a “hallmark of a democratic society” and is inextricably tied to freedom of expression.  When a publication ban is sought the court must determine whether it is necessary to protect an important legal interest and, if so, how that interest can be protected with as little impairment of freedom of expression as possible.  If alternative measures can just as effectively protect the interests engaged, the restriction is unjustified.  If no such alternative measures exist, the inquiry turns to whether the proper balance was struck between the open court principle and the other legal interest being protected. [See A.B. v. Bragg Communications Inc., 2012 SCC 46 (CanLII), [2012] 2 S.C.R. 567.]

[48]           The above principles have been encompassed by the Superior Court in a Practice Direction effective July 1, 2016 dealing with publication bans that applies to all civil, criminal and family proceedings in the Superior Court. The Practice Direction provides in part that “unless otherwise ordered by a judge” any person seeking a publication ban must proceed by notice of motion and supporting materials and notice of the motion as provided by the rules must be provided to the media.

[49]           In granting the ban, the motions judge made no specific mention of the Practice Direction although she did dispense with the need for a formal motion and notice to the media.  She identified the prevention of further attack on the reputations of the Respondents as the important legal interest requiring protection.  Although she indicated that “reasonable alternative measures will not prevent the risk” of the Appellants continuing to smear the reputations of the Respondents, she did not identify or comment upon any of the alternatives that might have been considered.  Her concern, it seems, was that the Appellants would use the publication of her decision or portions of the court file to further attack the reputations of the Respondents.

[50]           The motions judge stated “I am granting a Publication Ban with respect to this case,…” without particularizing the specifics of the order to be granted.  It is unclear whether the publication ban was with respect to her reasons for decision or all the contents of the court files.  It is unclear whether it was directed at the parties alone or the world at large.  It is unclear whether it related only to information that would identify either of the Respondents, or all materials.  Knowing the particulars of the order is necessary to determine whether the most or least restrictive ban was imposed. Further, it is unclear why she dispensed with the requirements of the Practice Direction for a formal notice and service on the media. 

[51]           Publication Bans strike directly at the heart of the open court principle. They are not to be granted as was the case here on the spur of the moment without proper consideration and notice.  

[52]           I would therefore set aside the publication ban.

[53]           Given my findings on the substantive issues on appeal the costs orders made by the motions judge cannot be sustained.  Having regard to the eventual divided success of the motions brought by the Respondents herein, each party should bear their own costs of the original motions.

[54]           With respect to this appeal, although success has been somewhat divided, the Appellants have enjoyed greater success.  They are entitled to some measure of costs both for the motion for leave to appeal and for the motion before us.  I assess those costs at $35,000.

[55]           The Appeal is granted in part.

[56]           The Order of Justice Snowie dated December 2, 2016 is set aside.  An order on the following terms shall issue in its place:

[57]           The Order for costs of the motions heard by Justice Snowie are set aside.  There shall be no order of costs relating to those motions.

[58]           The Appellants are entitled to payment of part of the partial indemnity costs related to its motion for leave to appeal and to this appeal, which I set at $35,000 inclusive of HST and disbursements.