Executive Summary: Key Legal and Evidentiary Issues

• This case addresses whether Facebook posts about a Manitoba dog grooming business were defamatory toward its claimed owner.
   
• Ownership of McBarn Kennels became a central and contested evidentiary issue, given an inactive business name registration and joint property ownership between the plaintiffs.
   
• Tanis McIntosh's own cross-examination testimony undermined her position that the defendant's post targeted her rather than her husband, Jeff.
   
• Justification and fair comment were both raised as alternative defences to the defamation claim.
   
• Malice, had it been proven, would have defeated an otherwise valid fair comment defence, but no such showing was made.
   
• Ultimately, the court found the impugned post was directed at Jeff rather than Tanis, leading to dismissal of the claim.
   

Facts of the case

The plaintiffs, Gordon Jeffrey McIntosh — spelled "Jeffrey" in the style of cause but "Jeffery" in paragraph [1] of the decision, an inconsistency present in the source document — ("Jeff") and Tanis Rae McIntosh ("Tanis"), operate McBarn Kennels, an unincorporated dog grooming business located in Stanley, Manitoba, serving primarily the Morden and Winkler communities. The dispute arose from a series of Facebook posts made in the aftermath of a Covid-related rally held in Winkler on August 30, 2021. Jeff published a post criticizing the community's response to vaccination and pledging to withhold his business from those who were unvaccinated. In response, the defendant, Mike Thiessen ("Mike"), posted that Jeff "owns Controlled Air in Winkler and McBarn Kennels between Winkler and Morden" and encouraged others to withdraw support from Jeff's businesses. Mike revised the post twice in the following days, ultimately softening the ownership statement to "I believe Jeff owns McBarn Kennels." Tanis brought a defamation action alleging the post damaged McBarn's reputation. Jeff, though initially a co-plaintiff, discontinued his portion of the claim before the hearing, leaving Tanis as the sole plaintiff proceeding. The matter, originally scheduled for trial, was converted by agreement into a one-day trial conducted entirely on affidavit evidence.

Policy and legislative provisions at issue

The court applied the established framework for defamation set out in Grant v. Torstar Corp., 2009 SCC 61, which requires a plaintiff to prove that the words were defamatory, referred to the plaintiff, and were published to a third party. Once these elements are met, falsity and damage are presumed, shifting the onus to the defendant to raise a defence. Two defences were considered: justification, as described in Bent v. Platnick, 2020 SCC 23, which requires the defendant to prove the "substantial truth" of the sting of the alleged defamation; and fair comment, drawn from WIC Radio Ltd. v. Simpson, 2008 SCC 40, and refined in Hansman v. Neufeld, 2023 SCC 14. The fair comment defence requires that the comment concern a matter of public interest, be based on fact, be recognizable as comment, satisfy an objective "honest belief" test, and not be defeated by proof of express malice.

Reasoning and analysis

The court concluded that the evidence did not establish that Mike's post defamed Tanis or lowered her reputation, either personally or through McBarn. Central to this finding was Tanis's own cross-examination admission that the post directed people not to support Jeff, and evidence that everyone who viewed or commented on the post referred to Jeff by name or male pronoun, not to Tanis or McBarn. The court also found that McBarn's ownership was, in its words, "convoluted at best," noting the expired business registration, the couple's joint ownership of the land and buildings where the business operated, and Jeff's own public social media statements describing himself as McBarn's "Chief Pooper Scooper" and "maintenance man," and referring to the business using "we" and "our." On this basis, the court found Jeff held himself out publicly as having an active interest in the business. Turning to the defences, the court found that even if the post were considered defamatory of Tanis, Mike had established the substantial truth of his statements, since Jeff's dislike of his neighbours was undisputed and Jeff's ownership interest in McBarn was supported on a balance of probabilities. The court also found the elements of fair comment satisfied: the post concerned a matter of public interest tied to public Covid-19 vaccination debate, was based on fact, was recognizable as comment, and met the objective honest-belief test. The court further found no evidence of express malice on Mike's part.

Ruling and overall outcome

The court dismissed Tanis's claim, concluding that the impugned Facebook post was directed at Jeff rather than at Tanis or McBarn, and that, in any event, Mike had established both the justification and fair comment defences. As the successful party, Mike was awarded one set of costs at the applicable tariff, payable jointly and severally by Tanis and Jeff; the exact quantum of costs was not specified in the decision and remains subject to agreement between the parties or further submissions. On damages, the court noted that had the claim succeeded, it would have fixed damages at $7,500, but no damages were actually awarded given the dismissal of the claim.