<\/p>\n\n\n\n
[Richard Warman, a board member of the Canadian Anti-Hate Network sued journalists Jonathan Kay & Barbara Kay, seeking $25,000 & $10,000 for tweets suggesting CAHN assisted violent Antifa and that Warman uses lawsuits to silence critics. Warman lost big time with costs to be decided. It’s fascinating to learn that a grant of $25,000 from the malodorous Southern Poverty Law Centre helped set up CAHN. CAHN has received hundreds of thousands of dollars from theCanadian taxpayer and $500,000 in 2020 from the Bank of Montreal. CAHN has been a loud proponent of censorship. In a taxpayer-funded booklet to combat “hate” in schools, it makes the ludicrous claim that the Red Ensign is a hate symbol. — Paul Fromm]<\/p>\n\n\n\n
ONTARIO SUPERIOR COURT OF JUSTICE
OTTAWA SMALL CLAIMS COURT<\/p>\n\n\n\n
SC \u2013 20 -156136<\/p>\n\n\n\n
BETWEEN:
Richard Warman<\/p>\n\n\n\n
Plaintiff<\/p>\n\n\n\n
)Andr\u00e9a Baldy<\/p>\n\n\n\n
Jonathan Kay and Barbara Kay
Defendants<\/p>\n\n\n\n
)Asher Honickman<\/p>\n\n\n\n
)Heard:May4,5,6
)July13,14,15,
)October 14, 2022
)Released:
)November 10,
)2022<\/p>\n\n\n\n
DWOSKIN, J.<\/p>\n\n\n\n
REASONS FOR JUDGMENT<\/p>\n\n\n\n
<\/p>\n\n\n\n
OVERVIEW
[1] This was a claim for $25,000.00 against Jonathan Kay and
$10,000.00 against Barbara Kay, for defamation and loss of
reputation.
[2] The alleged defamatory communication relating to Jonathan Kay
was from a hyperlinked article he tweeted on November 12, 2019,
titled:
\u201cAnt-hate Southern Poverty Law Center Partner Funds Violent
Canadian Antifa\u201d
[3] On November 12, 2019, Jonathan Kay wrote and\/or printed
words alleged to be defamatory including:
November 12, 2019
@Jonkay
\u201creally unsettling. Why wd an \u201canti hate\u201d group like
@antihateca be supporting antifa thugs? Few years back, u
could make a case that many antifa members really opposed rt
wing extremism, but antifa has now just become a hate cult
engaged in street violence\u201d.
[image]
\u201cAnti-Hate Southern Poverty Law Center Funds Violent Antifa
It shouldn\u2019t be a big demand for left-wing groups to disavow
Antifa violence and certainly not to partner with the movement
or its supporting organizations.
The federalist.com
Exhibit 1, Tab 3<\/p>\n\n\n\n
<\/p>\n\n\n\n
[4] A further communication tweeted by Jonathan Kay January 25,
2020, reads:
\u201cgreat @c2cjournal piece on the race-hustling at @antihateca,
which scares its donors with exaggerated fearmongering, &
pushes censorship. Also notes CAHN\u2019S de facto support for
antifa, a street gang & dox shop that exudes the same hate
CAHN claims to fight [sic]\u201d.
[5] The alleged defamatory communication relating to Barbara Kay
was from a hyperlinked article she tweeted on November 12,
2019, titled:
\u201cAnt-hate Southern Poverty Law Center Partner Funds Violent
Canadian Antifa\u201d
[6] On November 12, 2019, Barbara Kay wrote and\/or printed words
alleged to be defamatory including:
November 12, 2019
@BarbaraRKay
\u201cNot a good look for @antihateca in this article.
[image]
\u201cAnti-Hate Southern Poverty Law Center Funds Violent Antifa
It shouldn\u2019t be a big demand for left-wing groups to disavow
Antifa violence and certainly not to partner with the movement
or its supporting organizations.
The federalist.com<\/p>\n\n\n\n
[7] The defendants raise the following defences:
a) The impugned publications are not defamatory of the plaintiff
(\u201cWarman\u201d)
b) Justification of lesser meanings<\/p>\n\n\n\n
<\/p>\n\n\n\n
c) Fair Comment
d) Qualified Privilege
e) Lack of Malice
f) Lack of Damages
g) Republication
h) s.137.1 of the Courts of Justice Act, R.S.O. 1990, c.C.43<\/p>\n\n\n\n
FACTS
Parties
[8] Warman is a lawyer and at the material time, a volunteer board
member of the Canadian Anti-Hate Network (\u201cCAHN\u201d).
[9] Jonathan Kay (\u201cJonathan\u201d) at the material time was a journalist
with the Twitter handle \u201c@jonkay\u201d, and Barbara Kay (\u201cBarbara\u201d)
was at the material time a columnist at the National Post and had
a Twitter handle \u201c@BarbaraRKay\u201d.
Publication\/Endorsement
[10] On November 12, 2019, Jonathan communicated the content
referred to, supra, through his Twitter account and the text
included a hyper link:
https:\/\/twitter.com\/jonkay\/status\/119463849796280296<\/p>\n\n\n\n
[11] On January 25, 2020, Jonathan Kay published the tweet referred
to, supra.<\/p>\n\n\n\n
<\/p>\n\n\n\n
[12] On November 12, 2019, Barbara communicated the content
referred to, supra, through her Twitter account and the text
included a hyper link:
https:\/\/twitter.com\/BarbaraRKay\/status\/119426470236223
48880<\/p>\n\n\n\n
[13] Notice of Libel was served on the defendants on November 22,
2019.<\/p>\n\n\n\n
ISSUES
[14] A) Defamation \u2013 were the impugned tweets defamatory.
Did they contain allegations against Warman that would
lower him in the estimation of reasonable people or cause
him to be regarded with hatred, fear, or dislike?
B) Justification \u2013 were the words substantially true. What were
the tweets in their natural and ordinary meanings meant or
understood to mean?
C) Fair comment \u2013 Did the tweets consist of expressions of
opinion, on matters of public interest. Did the defendants
honestly hold those opinions?
D) Qualified privilege \u2013 were the tweets published in good
faith. Did the defendants honestly believe they were fair and
accurate and related to maters of public interest?
E) Malice \u2013 did the defendants believe what they published to
be true. Was their belief reasonably held and did they act
reasonably in expressing their views?
F) Damages \u2013 If the words were defamatory, did Warman
suffer actual injury or damage to his reputation?
G) Strategic lawsuit against public participation \u2013 Do the
Charter or the Courts of Justice Act offer a defence?<\/p>\n\n\n\n
<\/p>\n\n\n\n
EVIDENCE
Richard Warman
General
[15] Warman is a lawyer, a Judge Advocate General reservist, and has
been involved with human rights issues with the Canadian Human
Rights Commission, where he was formerly employed, filing 16
successful complaints against neo-Nazis, and white supremacist
groups and individuals over the last 20 years.
[16] Warman is a well-known public speaker on human rights and
anti-racist activism. And a recipient of numerous awards and
honors for his human rights advocacy.
Exhibit 2, Tabs 4-5
[17] In 2018 the Canadian Anti Hate Network (CAHN\u201d) was formed by
three individuals, Bernie Farber, Evan Balgord and Amira Al –
Ghawaby. Their website was active from about July of that year.
[18] The non-profit corporation started with a budget of $25,000 from
the Southern Poverty Law Center (\u201cSPLC\u201d), though there was no
formal alliance between them.
[19] CAHN\u2019S mandate was to educate the public with respect to hate
groups and counter the activities of those hate groups.
[20] Warman joined CAHN\u2019s board in 2018. He provided direction to
the executive director Balgord, the only paid member, helped
obtain funding, and dealt with legal issues as well. His role was
coordinating anti racist and anti-fascist movements.
[21] Numerous articles including ones from the Canadian Jewish News,
the CAHN website, and news articles identify Warman as a CAHN
board member from August 2, 2018, to September 2019.<\/p>\n\n\n\n
<\/p>\n\n\n\n
[22] In 2019 a peace bond was issued under s.810 of the Criminal
Code against Kevin Goudreau, a member of the Canadian Neo –
Nazi movement, for threats against CAHN . The bond named
Warman, as part of CAHN.
Exhibit 1 \u2013 Tab 17
[23] Warman\u2019s work was positively received and resulted in medals
for good citizenship; a sovereign volunteer medal; and a Queen\u2019s
diamond medal, and an Ottawa Citizen article asking, \u201cis this the
bravest man in Canada?\u201d
[24] Warman testified that he was on a \u201chit list\u201d for racists and white
supremacists; was criticized by those opposed to legal controls on
hate speech; and, generally, was opposed by those holding
\u201clibertarian\u201d views.
[25] Warman dealt with them by disabusing them, engaging with them,
ignoring them if possible, or issuing libel actions against them. His
reputation for integrity and honesty is crucial to his work as a
lawyer and advocate for human rights.
[26] Warman admitted he has received no serious threats in the last 5
years and that the impugned tweets haven\u2019t exacerbated the
situation.
[27] He still is portrayed positively in mainstream media and has no
knowledge of anyone concluding that he personally funds hate
groups, which he testified he does not do, nor has he encouraged
violence.
[28] In cross examination, Warman was referred to a Maclean\u2019s
magazine article by Charlie Gillis regarding s13 of the Canadian
Human Rights Act and Warman\u2019s use of that section, which
required no intent; did not have truth as a defence; and
discouraged legitimate free speech. Warman brought more
complaints to the CHRC than anyone else.<\/p>\n\n\n\n
<\/p>\n\n\n\n
[29] After a Warman sent a libel notice to a library, the British
Columbia Civil Liberties Association got involved resulting
ultimately in the repeal of s13. The National Post, Ottawa Citizen,
Globe and Mail, Law Times and the Canadian Lawyer all did
articles on Warman and his involvement with s13 of the
Canadian Human Rights Act.<\/p>\n\n\n\n
2008 Libel action against Jonathan Kay and the National Post
[30] In February 2018, Jonathan published an article on the National
Post website alleging that Warman manufactured his own hate
material, and that there was a phony racism industry in Canada.
Exhibit 1, Tab 9, p 62\/113
[31] Warman then commenced a libel action which was settled. The
National Post apologized and retracted the post.
November 12, 2019, Tweets
[32] Neither Warman nor CAHN had any contact with the defendants
before the November 12, 2019, tweets which Warman considered
defamatory in that he believed they conveyed the message that he
personally funded antifa.
[33] Warman admitted in cross examination that he had no knowledge
if the impugned tweets were liked, retweeted, commented on and
admitted the tweets never went \u201cviral\u201d.
[34] Warman did not e-mail Jonathan regarding the November 12,
2019, tweet but instead retained counsel who gave Notice of Libel
to the defendants on November 21, 2019.
Exhibit 1, Tabs 7,8, page 5\/113
[35] Warman contacted The Federalist in December 2019 seeking a
retraction since their article was based on an earlier Huffington
Post article wrongly alleging the source of funding for Antifa.
Exhibit 1, Tab 4, page 38<\/p>\n\n\n\n
<\/p>\n\n\n\n
[36] Although Warman received no response to his December 2, 2019,
e-mail, the Federalist did change the article, though not in a
manner satisfactory to Warman. Warman never sent a libel notice
nor commence an action against the Federalist.
Exhibit 8
[37] This action was then commenced in January 2020.<\/p>\n\n\n\n
Steven Rogers
[38] Rogers is an expert in digital forensics, gave evidence on behalf of
Warman regarding the impugned tweets, and filed a report dated
January 25, 2020.
Exhibit 1 \u2013 Tab 18, pages 37\/176
[39] Rogers gave evidence as to the number of followers the
defendants had but was unable to say how many of those
followers saw the tweets and whether those tweets went \u201cviral\u201d.
He gave no evidence that any of the tweets were \u201cpinned\u201d.
Jonathan Kay
General
[40] Jonathan is a journalist and has written for the Washington Post,
the Wall Street Journal, the National Post, Al Jazeera, and the
Canadian Jewish News. He also worked with the New Yorker,
Harper, and the Walrus.
[41] Kay describes himself as an activist working for social justice
causes, and a public intellectual who rejects all ideological
extremism. His first employment was in Montreal in 1995
working with Irwin Cotler, a former Minister of Justice and
Attorney General of Canada, and a well-known human rights
advocate.<\/p>\n\n\n\n
<\/p>\n\n\n\n
[42] Jonathan is Jewish, and his father fled the USSR, so he is mindful of
the dangers of extremism from both the left and right wings of the
ideological spectrum.
[43] Jonathan was not aware of Warman except for his activity
commencing litigation or using s13 of the Canadian Human
Rights Act to act against hate groups. He was aware of the 2008
Macleans magazine article entitled \u201cRighteous Crusader or Civil
Rights Menace\u201d
Exhibit 3 \u2013 Tab 6
2008 Libel Action
[44] In 2008 Jonathan wrote an article for the National Post describing
the admonishment received by Warman from the Human Right
Tribunal regarding his infiltrating the Northern Alliance by posing
as a neo-Nazi.
Exhibit 1, Tab 9
[45] Jonathan relied on expert testimony from Bernard Klatt, believing
him to be an expert witness, for the article, which testimony was
in part inaccurate. The article was retracted on February 20,
2008.
Exhibit 2, Tab 2
[46] Notwithstanding the retraction, Warman still sued the National
Post and Jonathan, seeking an apology which Warman described
as an antidote to defamation. The action was settled before trial.
[47] Jonathan was aware of CAHN, which was led by Bernie Farber,
who Jonathan knew for over twenty years, and who Jonathan
considered a \u201cgood egg\u201d . Jonathan was positively disposed both
to Farber and CAHN since Farber was a leader of the Canadian
Jewish Congress and fought racism from both the left and right.<\/p>\n\n\n\n
<\/p>\n\n\n\n
[48] Jonathan was unaware of anyone else but Farber as a part of
CAHN and did not know Warman was with CAHN until he was
served with the libel notice. He was aware of a May 8, 2018, CBC
article profiling CAHN but testified that the article made no
mention of Warman.
Exhibit 6
[49] Jonathan was aware of Antifa and its activities and described its
earlier messaging as \u201cbenign\u201d. However, subsequent YouTube
videos taken of antifa demonstration were described by Jonathan
as violent, thuggish, destructive of property and not all about
\u201cpeace and love\u201d.<\/p>\n\n\n\n
November 12, 2019, tweets
[50] Jonathan referred to a CAHN article by the CEO Balgord dated
September 20, 2017, as an apologist tract for Antifa, describing
the need for \u201cphysical disruption\u201d to get their message across.
Exhibit 3, Tab 9<\/p>\n\n\n\n
[51] A Quillette article (Jonathan was an editor) about Columbia\u2019s
Journalism dated June 18, 2019, described Antifa as violent and
advocating violence to effect change. The article described what
happened to Andy Ngo, a friend of Jonathan\u2019s, who was a 5\u20192\u201d gay
Vietnamese conservative journalist covering Antifa activity in
Portland Oregon when he was badly beaten by Antifa members,
described by Jonathan as \u201cthugs\u201d.
Exhibit 5, Tab 32; Exhibit 2, Tab 8
[52] Jonathan described numerous instances where Antifa used
intimidation, violence and generally mimicked fascist group
activities in Portland, Oregon, and Hamilton Ontario and, for
example, screamed at an elderly woman at a town hall event in
October 2019, where they tried to block a speaker, Maxime
Bernier, and called her \u201cNazi scum\u201d .
Exhibit 5, Tabs 3-6, Tab 31<\/p>\n\n\n\n
<\/p>\n\n\n\n
[53] Jonathan attributed the Federalist article to Bernie Farber and
was disappointed that Farber, whom he had great respect for,
praised \u201cmuscular resistance\u201d (balaclavas and pipes) and felt that
CAHN only called out right wing hate mongers. He felt betrayed by
Farber.
Exhibit 1, Tab 4<\/p>\n\n\n\n
[54] Regarding the impugned November 12, 2019, tweet, Jonathan was
upset that instead of ratcheting down the culture war and
divisiveness, Farber was devoting his own voice and CAHN\u2019s to
promoting Antifa, and getting government funding for his efforts,
while few Canadians knew about Antifa\u2019s street violence.
Exhibit 1, Tab 3<\/p>\n\n\n\n
[55] Jonathan testified that he \u201ctagged\u201d or sub tweeted CAHN, so they
had notice of the tweet. He was blocked from contacting CAHN
directly. The tweet was about CAHN\u2019s organization and was the
institutional extension of Farber\u2019s stature.
[56] Jonathan had no problem with any private individual supporting
Antifa but institutions like CAHN supporting Antifa give it public
approbation and signals approval \u2013 a very valuable currency.
[57] Jonathan had no interest in Warman, said nothing about Warman
in any tweet and had no interest in any issues between the
Federalist , Huffington Post and Warman. He testified that e
thought only of Bernie Farber ad Evan Balgor as being connected
with CAHN.
[58] As to the tweet itself, Jonathan testified it \u201cdropped like a stone\u201d,
there was no image of any likes , retweets, comments , nor was the
tweet \u201cpinned\u201d so it would always be on top of Jonathan\u2019s tweets,
so there was very little dissemination. He deleted the tweet but
doesn\u2019t know whether that was before or after receiving the
Notice of Libel.<\/p>\n\n\n\n
<\/p>\n\n\n\n
January 25, 2020, tweet
[59] Regarding the second impugned tweet, dated Jan 25, 2020,
Jonathan was concerned with what he described as \u201crace
hustling\u201d, and cancel culture pushing censorship.
Exhibit 1, Tab 11
[60] Jonathan contacted a CAHN board member, Professor Perry, who
counted 300 right wing extremist groups in Canada, which
became a media story attracting the attention of the NDP leader
Jagmeet Singh, seeking the names of the groups. The disclosure
was never provided.
Exhibit 3, Tab 24, Tab 15
[61] Jonathan\u2019s concern was that CAHN was stirring up the idea of
apocalyptic threat and calling out right wing but not left wing hate
groups. He referred to CAHN articles describing how to find local
Antifa chapters and referring to an international Antifa defence
fund
Exhibit 4, Tab 3, Exhibit 7
[62] Jonathan testified that Warman had a reputation as a litigation
enthusiast and is now prominent on the CAHN website, so he has
suffered no diminution in reputation .
[63] Jonathan did not offer an apology regarding his tweets because
none referred to Warman; CAHN was and is still a partisan
organization; and, finally, in 2008 when Jonathan and the National
Post did retract the impugned article, Warman still sued anyway.
Barbara Kay
General
[64] Barbara testified that she was a journalist for over 22 years and
had a lifelong interest in writing about human rights, cancel
culture and antisemitism.<\/p>\n\n\n\n
<\/p>\n\n\n\n
[65] Barbara is a self-described \u201cclassic liberal\u201d championing
individual (as opposed to state\u2019s) rights, due process, freedom of
speech, and conscience, and is most concerned with left wing as
opposed to right wing antisemitism, since right wing antisemitism
has no institutional support.
[66] Her concerns are with universities exercising \u201ccancel culture\u201d and
repressing free speech.
[67] Barbara had a positive impression of Bernie Farber until he got
\u201cwoke\u201d and, as the voice of the Jewish community, was ignoring
left wing antisemitism.<\/p>\n\n\n\n
Knowledge of Warman and CAHN
[68] Barbara was only aware of Warman\u2019s impersonating fascists and
using s13 of the CHRA and suing \u201csmall potatoes\u201d and believed he
was using libel chill to compel respect. She had no knowledge of
any connection with CAHN.
[69] Barbara read the Federalist article and sent her tweet the same
day it was published. She was concerned with Farber\u2019s praising
\u201cmuscular resistance\u201d and was unaware that Warman was a CAHN
board member. She thought that Farber was CAHN and CAHN was
Farber.
November 12, 2019, tweet
[70] Barbara had used that expression \u201cnot a good look\u201d many times
before the impugned tweet. Her concern was that an anti-hate
group was endorsing antifa which was not a good look for a
respectable organization.
Exhibit 1, Tab 3
[71] Her testimony was that she believed it was in the public interest
to know about that support, and that CAHN could do better. As a
journalist her duty was \u201csee something, say something\u201d.<\/p>\n\n\n\n
<\/p>\n\n\n\n
[72] Barbara\u2019s testified that she wanted CAHN to fight antisemitism
and wanted their reputation to be good. She believed a
government funded organization should do better and live up to
its name.
[73] As to Warman, Barbara testified that his reputation is flourishing,
and that his \u201cbrand\u201d is as a human rights lawyer, not as any
representative of CAHN. She did not contact CAHN regarding the
federalist article or her tweet since she was blocked from
contacting CAHN.<\/p>\n\n\n\n
ANALYSIS
Were the tweets defamatory
[74] The plaintiff submits the impugned tweets lowered Warman\u2019s
reputation in the eyes of a reasonable person given his association
with, and as a board member of, CAHN.
[75] The Kays submit that the tweets did not refer to Warman
personally, only to CAHN, and further submit that they did not
republish the article on the Federalist website which did name
Warman.
[76] The evidence was that Warman did not run CAHN; was not its
most identifiable or visible member; and was often unable to be a
part of CAHNs activities due to conflicts of interest with his work
with the Judge Advocate General, in cases involving federal parties
and politics and the armed forces.
[77] Warman\u2019s reputation among those following human rights issues
was as a human rights lawyer, not a principal of CAHN. The
evidence was that Bernie Farber and Evan Balgord were much
more publicly seen as the alter ego of CAHN, and neither has sued
the Kays.<\/p>\n\n\n\n
<\/p>\n\n\n\n
[78] The plaintiff has not proven, on a balance of probability, that the
impugned tweets would lead a reasonable person to believe they
referred to Warman. While they could refer to Warman, they did
not actually refer to him and, as found, supra, he was not CAHN\u2019s
alter ego nor was he CAHN\u2019s sole actor, or even its primary actor.
[79] Defamation of CAHN does not constitute defamation of Warman.
Warman has failed to prove, on a balance of probability, that he
was \u201cthe face\u201d of CAHN, or it\u2019s alter ego, and although a reference
to CAHN could refer to Warman, that is not sufficient in law to
constitute defamation of Warman.
Foulidis v Ford 2012 ONSC 7189
[80] The Kays evidence was that they both saw Bernie Farber as the
chair of CAHN; the face of CAHN and its most prolific member
because he was the CEO of the Canadian Jewish Congress.
[81] They did not have Warman in mind as part of CAHN when they
published their tweets, and their evidence was that they did not
even know Warman was a CAHN board member until served with
Notice of Libel.
[82] Articles published in 2018 on CBC and TVO refer to Farber as the
founder of CAHN and refer to Evan Balgord as a co-founder.
Neither mention Warman. At the time of the impugned tweets,
November 2019, CAHN had more than 15 members. It was not a
minor organization, and its identity was not the same as any
board member.
Exhibit 3, Tab 10; Exhibit 6
[83] Farber\u2019s Wikipedia page refers to Farber running the Canadian
Anti Hate Network with Evan Balgord. There is no mention of
Warman. Warman\u2019s Wikipedia page does not refer to his role as a
CAHN board member.
Exhibit 3, Tab 22, page 227; Exhibit 5, Tab 24<\/p>\n\n\n\n
<\/p>\n\n\n\n
[84] Neither CAHN , Farber, Balgord nor other CAHN board members
sued the Kays, and Warman did not sue the Federalist nor the C2C
Journal, the Canadian publication which published the article
referred to in the 2020 tweet.
[85] Warman admitted in cross exam that a person reading the
impugned tweets may not have associated them with him, and in
fact gave no evidence that anyone reading the tweets believed
they were about him.
[86] Warman did submit that the Federalist article headlined in the
tweet referred to him and was defamatory, but he also testified
that he wrote the Federalist asking them to remove the
allegations about him personally funding violent Antifa groups in
the body of the article (which they apparently did) and did not
seek to have them change the headline nor remove other
allegations referring to CAHN.
Exhibit 8
[87] The headline\/sub headline of the tweets criticize CAHN policy but
do not refer to any individual, and any person would therefore
have to read the article itself to understand the tweets or
headline. The ordinary meaning of the tweets and headlines is
that CAHN provides material assistance to Antifa, not that
Warman personally funds violent groups.
[88] The Kays did not republish the Federalist article by simply linking
to it, and Warman\u2019s name appears only in the article, not the
headline or sub headline. This does not constitute a repeat or
republication of the defamatory content.
Crookes v Newton [2011] 3 SCR 269
[89] I find therefore that the plaintiff did not discharge the burden of
proving on a balance of probability that the defendants\u2019 words
referred to him and were defamatory of him.<\/p>\n\n\n\n
<\/p>\n\n\n\n
[90] Even if the impugned tweets were defamatory, which I have found
has not been proven, the Kays have raised defences which would
shift the onus to Warman to prove malice on the part of the Kays,
or either of them.<\/p>\n\n\n\n
Fair Comment
[91] The public has an interest in the fight against hate crime in
Canada and the parties involved in that fight, including CAHN and
Antifa.
[92] The Kays both gave evidence of their longstanding activism
regarding human rights and antisemitism and their tweets
comment on the fact that the Federalist and C2C Journal articles
both allege that CAHN supports or assists the Antifa movement.
[93] Warman\u2019s evidence was that he and CAHN were part of the Antifa
movement; Farber has praised their muscular resistance; and
Balgord referred to Antifa\u2019s use of physical disruption.
Exhibit 1, Tab 4; Exhibit 3, Tabs 8, 9
[94] The Kays evidence, which I accept, was that Warman was not the
subject of their tweets \u2013 they were unaware that he was a CAHN
board member at the relevant times – and that Farber and CAHN
were the subjects since Farber was well known, particularly
within the Jewish community, and CAHN had influence as a partly
government funded Canadian organization.
[95] I find therefore that it has not been proven, on a balance of
probability, that the opinions which were the subject of the
impugned tweets were dominantly motivated by malice.
[96] I accept the Kays\u2019 evidence that they reasonably believed their
opinions to be accurate, and find that there was insufficient
evidence to establish, on a balance of probability, that there was a
reckless disregard for the truth.<\/p>\n\n\n\n
<\/p>\n\n\n\n
Justification
[97] The evidence disclosed that CAHN did in fact assist Antifa and that
the movement has been violent. The Kays submission, which I
accept, is that a human rights network like CAHN arguably
(except in the most extreme circumstances) should not support a
violent movement, and to do so, to most reasonable observers,
would not be a \u201cgood look\u201d.<\/p>\n\n\n\n
Qualified privilege
[98] The defendants have not proven, on a balance of probability, that
the recipients of the impugned tweets had an interest or duty to
receive them. The test is objective \u2013 i.e., it is not whether the Kays
believed the recipients (which include, in the case of tweets, the
world at large) but whether they were necessary to discharge the
duty giving rise to the privilege.
[99] The case cited by the defendants regarding the application of
qualified privilege to tweets, which is under appeal, is not
applicable here. There was no moral nor professional duty on the
Kays as there was in the medical doctor in the Gill decision.
Gill v Maciver, 2022 ONSC 1279<\/p>\n\n\n\n
DAMAGES
[100] Although there was no evidence led as to reputational damage;
the impugned tweets were \u201cdud\u201d and did not go \u201cviral\u201d; the first
tweet was deleted prior to the Notice of Libel being served; and
there was no publication of the Federalist article which was
considered by Warman to be the most defamatory, general
damages are presumed in a defamation case.<\/p>\n\n\n\n
<\/p>\n\n\n\n
[101] While Warman is well known as a righteous crusader against
white supremacy and right-wing racist hate and has been
recognized and appropriately lauded for his work, he is also a
controversial figure and I accept the evidence of the Kays that he
has used litigation to silence or intimidate those he sees as his
critics, or who oppose his methods of prosecuting hate groups.
[102] I also accept the Kays\u2019 evidence as to why no apology was made
given that Jonathan Kay was still sued after the National Post
retracted its article and apologized for its inaccuracy, in 2008.
[103] Finally, I accept the evidence of the Kays that no apology was
warranted where neither of them referred to Warman in their
tweets and did not in fact even have him in mind when they
published them.
[104] Had Warman succeeded in this action against the Kays, I would
therefore have awarded nominal damages in the amount of
$5,000 against Jonathan Kay and $500 against Barbara Kay
whose tweet was far less recognizable and damaging to Warman.<\/p>\n\n\n\n
AWARD
[105] Having regard to all the above, and in recognizing the importance
of maintaining open debate on matters of public interest, while
being mindful that although freedom of expression is to be
protected, it is not a \u201cget out of jail free card\u201d for those exceeding
reasonable limits, the plaintiff\u2019s claim is dismissed.<\/p>\n\n\n\n
COSTS
[106] If the parties are unable to agree on costs, each party has 10 days
from the release of these reasons to serve and file cost
submissions, not to exceed 3 typed pages excluding a Bill of Costs,
together with copies of any offers made pursuant to Rule 14 of
the Rules of the Small Claims Court, which would impact costs<\/p>\n\n\n\n
21<\/p>\n\n\n\n
Dated at Ottawa this 9th day of November 2022. [Richard Warman, a board member of the Canadian Anti-Hate Network sued journalists Jonathan Kay & Barbara Kay, seeking $25,000 & $10,000 for tweets suggesting CAHN assisted violent Antifa and that Warman uses lawsuits to silence critics. Warman lost big time … Continue reading
David Dwoskin
Deputy Judge D. Dwoskin<\/p>\n\n\n\n![\"\"](\"http:\/\/cafe.nfshost.com\/wp-content\/uploads\/warman.jpg\")
<\/a><\/figure>\n","protected":false},"excerpt":{"rendered":"