Executive Summary: Key Legal and Evidentiary Issues

• The main issue was whether the statement in a press release describing Patrick Allard as spouting “racist rhetoric” was defamatory and, if so, whether any defences applied.

• The defendants conceded that the statement was defamatory but relied on the defences of justification, responsible communication, qualified privilege, and fair comment.

• The court examined whether the impugned words constituted a statement of fact or comment, which was crucial for determining the availability of certain defences.

• The defence of qualified privilege was found to apply, as the press release was issued in the context of a by-election and addressed matters of public interest.

• The plaintiff’s breaches of the deemed undertaking rule regarding discovery evidence were considered but did not result in striking out the claim or a finding of contempt.

• Damages were provisionally assessed at a nominal amount, reflecting the plaintiff’s pre-existing reputation and conduct, but no award was made due to dismissal of the action.

Facts of the case

Patrick Allard, a vocal opponent of Covid-19 vaccine mandates, ran as an independent candidate in a Manitoba by-election during the pandemic. The New Democratic Party of Manitoba (NDP), with Trudy Schroeder as its candidate and Mark Rosner as a campaign staffer, issued a press release in response to a proposed all-candidates debate. The release, sent to the media, stated that giving Allard a platform would allow him to “spout his anti-vaccination and racist rhetoric.” This statement was later published in a widely circulated newspaper.

Allard claimed that the reference to “racist rhetoric” was defamatory, arguing it implied he was racist. The defendants conceded the statement was defamatory but advanced several defences: justification (truth), responsible communication, qualified privilege, and fair comment. The case also involved a procedural issue, as the defendants alleged Allard had breached the deemed undertaking rule by sharing discovery evidence for purposes outside the litigation.

Discussion of policy terms and legal standards

The court outlined the elements of defamation: the words must be defamatory, refer to the plaintiff, and be published to a third party. Once established, the onus shifts to the defendant to prove a defence. The court discussed the distinction between statements of fact and comment, noting that labels such as “racist” are often considered comment rather than fact, especially in political contexts.

For justification, the court found the words were best characterized as comment, not fact, making this defence unavailable. The responsible communication defence was also unavailable because the statement was not a factual allegation and the defendants had not sought Allard’s response before publication.

Qualified privilege was central to the outcome. The court found that the press release was issued in response to a media inquiry during an election campaign, a context where the public had a legitimate interest in the candidates’ views and conduct. The court accepted that the NDP had a duty to communicate its reasons for not participating in the debate and that the public had a corresponding interest in receiving this information. The court also found no evidence of malice or improper motive on the part of the defendants, and that their belief in the statement was honestly held and based on reasonable grounds.

The fair comment defence failed because the factual basis for the opinion (Allard’s Facebook posts) was not made explicit or notorious in the press release, preventing readers from assessing the merit of the comment for themselves.

Outcome and ruling

The court dismissed Allard’s defamation claim, holding that the statement was published on an occasion of qualified privilege and that this defence was not defeated by malice or excessive publication. Although the court provisionally assessed nominal damages at $1.00, no damages were awarded due to the dismissal. The court also found that Allard had breached the deemed undertaking rule by sharing discovery evidence but did not find contempt or strike out the claim, instead indicating this conduct would be considered in assessing costs.

In summary, the defendants—the NDP, Trudy Schroeder, and Mark Rosner—were successful, with the court dismissing Allard’s action and awarding no damages. The only monetary reference was the provisional assessment of $1.00 in nominal damages, which was not ultimately awarded. If the parties cannot agree on costs, they may make further submissions to the court.