Executive Summary: Key Legal and Evidentiary Issues

• The Court of Appeal for Ontario upheld a trial decision dismissing CUPW's defamation claim against Quebecor Media Inc., Sun Media Corporation, TVA Group Inc., Jerry Agar, and Avi Benlolo.
   
• Both parties agreed the broadcast and newspaper column linking CUPW to Hamas were defamatory, leaving the available defences as the central issue on appeal.
   
• CUPW argued the trial judge erred in finding the remarks constituted fair comment rather than statements of fact.
   
• Justice Thorburn found no error in the trial judge's conclusion that the statements reflected honestly held opinions grounded in known facts about CUPW's history of activism.
   
• Allegations that the trial judge's reasoning was tainted by hindsight bias were rejected as unsupported by the record.
   
• Each set of respondents was awarded $50,000 in partial indemnity costs, payable within 90 days, by agreement of the parties.
   

Facts of the case

The appellant, Canadian Union of Postal Workers ("CUPW"), sued the respondents for defamation over a July 23, 2014 broadcast of "The Source" on Sun News Network and a July 28, 2014 column in the Toronto Sun titled "Hamas goes postal? Only in Canada." Both pieces followed CUPW's attendance, through representatives Peter Denley and Mike Evard, at a July 22, 2014 demonstration in Ottawa organized by the Association of Palestinian Arab Canadians and Independent Jewish Voices in solidarity with Palestinians. A photograph published by the Ottawa Citizen showed the CUPW flag flying near a demonstrator holding a Hamas-associated flag, though neither Mr. Denley nor Mr. Evard recalled seeing that demonstrator. On the broadcast, host Jerry Agar asked why CUPW was "marching with Hamas supporters," and guest Avi Benlolo, President and CEO of the Friends of Simon Wiesenthal Center, stated that supporting a designated terrorist organization was "shocking and bewildering" and that CUPW leadership had "a history of partnering up with hate groups." Before the broadcast, CUPW communications specialist Aalya Ahmad had declined an on-air interview and sent Sun News producer Kaite Boivin an email with links to CUPW's "Peace and Disarmament Policy" and its "Palestine" policy, which criticized Israeli and Canadian government actions but did not directly address whether CUPW supported Hamas. Mr. Agar's subsequent column asked, "Would you want a terrorist sympathizer coming to your door every day?" and maintained that CUPW had "not stated that they specifically condemn or make demands of Hamas."

Policy and legislative provisions at issue

Central to the case were CUPW's own internal policies — the "Peace and Disarmament Policy," which condemns violence generally, and the "Palestine" policy, which advocates for peace in the region while criticizing Canadian and Israeli government positions — both passed at CUPW's 23rd Triannual National Convention in 2008. The trial judge also applied s. 3(2) of the Libel and Slander Act, R.S.O. 1990, c. L.12, which privileges a fair and accurate broadcast report of proceedings at a lawfully held meeting concerning a matter of public interest. On appeal, the legal framework for the fair comment defence from WIC Radio Ltd. v. Simpson, 2008 SCC 40, required the respondents to show the remarks concerned a matter of public interest, would be recognized as comment rather than fact, were based on disclosed or known facts, and were opinions a reasonable person could honestly hold. The responsible communication defence, drawn from Grant v. Torstar Corp., 2009 SCC 61, required that the publication concern a matter of public interest and that the respondents acted diligently in trying to verify the allegations.

Reasoning and analysis

Writing for the panel, Thorburn J.A. held that the trial judge was not required to assess each remark individually and correctly asked whether the statements, in pith and substance, amounted to comment rather than fact, consistent with WIC Radio and Hansman v. Neufeld, 2023 SCC 14. The trial judge had relied on CUPW's own witness, Mr. Denley, along with CUPW's history of public criticism (including a 2020 National Post article), its unresolved policy debates at the 2008 convention, its delegates' attendance at the "World Social Forum – Free Palestine," and its association with George Galloway's speaking tour, to find a sufficient factual foundation for the respondents' opinions. On the question of whether the underlying facts were disclosed or otherwise known, the Court of Appeal agreed that Mr. Agar's column and CUPW's own public record of activism supplied that substratum, even though the comment "did not have to be reasonable." On honest belief, the panel found no error in relying on Mr. Benlolo's unchallenged evidence and CUPW's own witness's characterization of the Hamas-related controversy as a matter of "democratically expressed opinion," which was sufficient to negate the malice allegation under Hansman. The Court also upheld the trial judge's finding that the corporate respondents met the diligence standard for responsible communication, since they fact-checked the demonstration and the flag's proximity to CUPW's banner and gave CUPW an opportunity to respond, which CUPW declined. Finally, the panel found no reviewable error in the application of statutory privilege under s. 3(2) of the Libel and Slander Act, nor any merit to the claim of hindsight bias.

Ruling and overall outcome

The Court of Appeal for Ontario dismissed CUPW's appeal, agreeing with the trial judge that although the statements were defamatory, the respondents — Quebecor Media Inc., Sun Media Corporation, TVA Group Inc., Jerry Agar, and Avi Benlolo — successfully established the defences of fair comment, responsible communication, and statutory privilege. By agreement of the parties, each of the two sets of respondents [the decision states "each of the two sets of respondents" without itself naming the groups; based on the counsel listing at the outset of the judgment, this appears to be the corporate respondents together with Mr. Agar, and Mr. Benlolo separately] was awarded $50,000 in partial indemnity costs, all inclusive, payable within 90 days.