Court File No.

C68341

COURT OF APPEAL FOR ONTARIO

BETWEEN:

MICHELE DI FRANCO

Plaintiff (Respondent)

and

MICHAEL BUECKERT

Defendant (Appellant)

AMENDED FACTUM OF THE PLAINTIFF (RESPONDENT)

VICE & HUNTER LLP

Barristers & Solicitors
101-85 Plymouth Street
Ottawa, ON KlS 3E2

J.F. Lalonde
LSO# 50476V
[email protected]
Tel: 613-232-5773
Fax: 613-232-3509

Lawyers for the plaintiff (respondent)

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 Court File No. C68341

COURT OF APPEAL FOR ONTARIO

BETWEEN:

MICHELE DI FRANCO

Plaintiff (Respondent)

and

MICHAEL BUECKERT

Defendant (Appellant)

AMENDED FACTUM OF THE PLAINTIFF (RESPONDENT)

PART I - OVERVIEW STATEMENT

1. Ontario enacted its anti-SLAPP legislation, the Protection of Public Participation

Act, to "expand the democratic benefits of broad participation in public affairs

and to reduce the risk that such participation will be unduly hampered by fear of

legal action. Broad participation in public affairs is hampered, not furthered,

when minority perspectives on controversial issues are branded with

unwarranted epithets intended to delegitimize and, ultimately, silence those who

give them voice. When that happens, the anti-SLAPP provisions should not be

invoked to deny the defamed party a hearing on the merits. To do so is to turn

the anti-SPP regime against its own avowed purpose.

2. The respondent, Di Franco, is currently a law school student, and for the relevant

time, was a student at the University of Ottawa and Vice-President of a student

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club called UOttawa Students for Free Speech. He is a supporter of free speech

in the context of legitimate debate.

3. The appellant is a self-described "socialist" and a profuse user of Twitter.

Bueckert is being sued by Di Franco for publishing lies about Di Franco by

accusing him of being a "white supremacist", a "Nazi", a "bigot", an" alt-right

bro", a "Men's Rights Activist", "alt-right fringe", an "extremist alt-right dude",

a "race IQ scientist", a "Lobster fanboy" and an "alt-right MAGA chud".

4. Bueckert published theses gratuitous attacks on Di Franco because DiFranco had

expressed his support for the Ford government's policies requiring colleges and

universities to adopt policies to protect free speech on campus.

5. Bueckert moved to dismiss Di Franco's suit under s. 137.1 of the CJA. The

motion judge, Justice Gomery, dismissed the motion holding that there were

grounds to believe that: 1) the lawsuit had substantial merit; and 2) that there

were no valid defences. She also concluded that the public interest weighed in

favour of allowing the action to proceed to a determination on the merits.

6. Since the release of the motion judge's reasons, the Supreme Court of Canada

("SCC") has released two anti-SLAPP decisions, providing the definitive

guidance on hows. 137.1 is to be interpreted and applied (Pointes and Platnick) 1 .

7. The respondent, Di Franco, submits that the motion judge was correct in

allowing his case to proceed to trial so that he would have an opportunity to

11704604 Ontario Ltd. v. Pointes Protection, 2020 SCC 22 (Pointes), and Bent v. Platnick,
2020 SCC 23 (Platnick)

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vindicate his name and hold the appellant accountable for the egregious and

gratuitous attacks he levelled on Di Franco. While the appellant's defamatory

statements were on a matter of public interest, they were based on a gross

mischaracterization of the respondent's views and lacked the factual

underpinning to support a fair comment defence. 2 On a proper analysis

informed by Pointes and Platnick, Di Franco's action shares none of the

recognized characteristics of a SLAPP suit and should be permitted to proceed to

trial. It is the appellant who is seeking to squelch legitimate political debate by

equating Di Franco's support of the Ford government's policies on education as

support for, among others, white supremacy and right-wing extremism. Falsely

accusing a person of being, among others, a white supremacist for participating

in and supporting the development of a Conservative government policy does

nothing to further the free flow of debate in a democracy; rather, it curtails and

deters expression on matters of public interest and is designed, through

incendiary name-calling, to chill free speech. Allowing the appellant to invoke s.

137.1 to escape an adjudication on the merits would undermine the very policy

objectives that motivated the anti-SLAPP regime.

2 Fair comment is the only defence that is put in play on this appeal

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PART II - STATEMENT OF FACTS

Facts that the respondent accepts as correct

8. DiFranco accepts the facts as stated in paragraphs 9, 10, 11, 17, 18, 19, 21 of the

appellants' amended factum as correct.

Facts in which the respondent disagrees

9. Di Franco disagrees with many of the appellant's characterization of facts.

10. Para.14 of appellant's amended factum: The appellant states that he was of the

"opinion" that Di Franco's politics qualify as" alt-right", and that his" opinion"

was based on Di Franco's social media content. In fact, the appellant did not

state any opinions. He stated as facts that Di Franco was a "white supremacist",

a "Nazi", a "bigot", an "alt-right bro", a "Men's Rights Activist", "alt-right

fringe", an "extremist alt-right dude", a "race IQ scientist", a "Lobster fanboy"

and an "alt-right MAGA chud" (collectively referred to as the "Defamatory

Statements").

11. Further, the appellant's statements were not based on a review of Di Franco's

social media account. They were based on Di Franco's stated support for the

Ford government's policies and for meeting with Premier Doug Ford as part of a

consultation process. It was after being served with Di Franco's cease-and-desist

letter that the appellant scrutinized Di Franco's online activity and cherry picked

some of Di Franco's activities in an effort to justify his Defamatory Statements.

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12. Further, Di Franco's evidence regarding "Talc" is that he was not aware that the

term "Talc" was used pejoratively.

13. Further, Di Franco has denied that he knew that Milo Yiannopolous worked for

Breitbart and denies that he supports the extreme views of Milo Yiannopolous.

Milo Yiannopoulous has expressed views that are not extremist, and which

Di Franco liked. There is no evidence of Di Franco supporting any extreme

views.

14. Para. 15 of the appellant's amended factum: Di Franco appeared on the Gavin

Mclnnis show in his capacity as Vice-President of the uOttawa Free Speech Club.

Di Franco had recently organised a speaking event at University of Ottawa

where Janice Fiamengo, an associate professor of English at the University of

Ottawa, was a speaking guest. This speaking event was "crashed" by protesters

who claim to be part of a group called "Ottawa Against Fascism". The protesters

prevented the event from proceeding by scuffling with the attendees and by

pulling the fire alarm. This altercation was recorded on video and discussed by

Gavin Mclnnis on his show. Di Franco was invited by Gavin Mclnnis to speak

about the issue. Di Franco never endorsed any of Mclnnis' controversial views,

either before, during, or after the show. Di Franco simply appeared on the show

as an invitee to explain what had happened. Di Franco's appearance on the

show was recorded. The recording was in evidence and played in court. In open

court, Justice Gomery noted that Di Franco's appearance on the show was not an

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endorsement of Mclnnis, simply an appearance to speak to the issue of the

crashed speaking event.

Affidavit of Michele Di Franco, July 29, 2019 at paras. 51 to 59, and 129 to 133,
Exhibit Book at Tab 50, p. 395-397 and p. 416-418, Respondent's Compendium
atTab2

15. Para. 20 of the amended factum: The appellant has listed some of the

Defamatory Statements that the motion judge had grounds to believe were

defamatory, but not all of them. In addition to the expressions listed at

paragraph 20 of the amended factum, the following expressions were also

deemed defamatory: "white supremacist", "bigot", "alt-right bro", "Men's Rights

Activist", "alt-right fringe", "extremist alt-right dude", "Lobster fanboy", and

"alt-right MAGA chud".

16. Para. 23 of the amended factum: The appellant states that the motion judge's

finding of internet searchability was based solely on the "plaintiff's assertion in

his affidavit". This is incorrect. The finding of internet searchability was

supported by several exhibits, including: a Google search done by Di Franco

(Exhibit 73 of Di Franco affidavit); interviews given by the appellant to various

media outlets, including the Fulcrum and The Charlatan, which articles were

published online (Exhibit 68 and Exhibit 69 of Di Franco affidavit). The

appellant has commented about the case in other online media (Exhibit 70 of

Di Franco affidavit). The appellant himself produced a "Google search that [the

appellant] performed on the name "michele di franco ottawa"". The Google

search results appended to the appellant's affidavit include links to various

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articles, online publications, online chat groups (Redditt), and other links that

discuss the case and include the Defamatory Statements (Exhibit "I" of

appellant's supplementary motion record). In fact, the appellant goes on the

record and "stands by what he has said". The appellant's Twitter account is

open to any member of the public (not set to private). Anyone with an internet

connection can access the online Defamatory Statements. The Twitter account

had more than 6,000.00 followers in December 2019. The appellant has

republished the defamatory statements online many times. Since the publication

of the Defamatory Messages, Di Franco has received violent messages from

strangers calling him: "fucking asswipe", "fucking snowflake", "major pussy and

coward", "Nazi shithead", and "closet NAZI", (Exhibits 39 and 75 of Di Franco

affidavit). Di Franco was also physically threatened online by a stranger that

referred to him as deserving "a proper ass kicking" (Exhibit 54 of Di Franco

affidavit). A Google search performed before the hearing of December 2019 was

also included in Di Franco's factum, and considered by the motion judge.

17. Paras. 23, 24, and 25 of the amended factum: The appellant states that the

motion judge's finding that law firms seeking to hire the plaintiff may verify

what is posted about them is wrong because the articles in evidence state that the

employers will only verify what the job candidate has posted. Aside from

splitting hairs, the message that is conveyed in the articles is much broader than

what is being advanced by the appellant; being that we should be mindful of our

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online activities because employers will access and review it as part of their

hiring process (Di Franco Exhibit 74).

Affidavit of Michele Di Franco, July 29, 2019 at Exhibits 73, 68, 69, 70, 39,
75, Exhibit Book at Tabs 122, 118, 119, 119.1, 89, 123, 124 and 104, p.909,
881-886, 894-898, 172,921 and 703-706 Respondent's Compendium at
Tabs3

Concise summary of additional facts

18. The Defendant is a prolific user of Twitter and by December 2019 had at least 6,632

followers.

Affidavit of Michele Di Franco, July 29, 2019, at para. 5, Exhibit Book Tab 50,
p. 387, Respondent's Compendium at Tab 2

19. The defamatory messages posted online are as follows:

Defendant's Tweets

i. Who is @fordnation listening to on free speech? Not student unions, or

elected student representatives, but an unofficial student club at
#uOttawa who represents nobody, platforms anti-feminists, & who
spoke to facist.

ii. Never forget that before @fordnation killed democratic student

representation on campus, he first intervened to force universities to
provide a safe space for Nazis and bigots. These are connected. #onpoli.

iii. @fordnation & @DrFullertonMPP are killing funding for: LGBTQ

students[;] Racialized students[;] Indigenous students[;] Sexual violence
prevention [;] campus food bank [;] & more just because a handful of
extremist alt-right dudes told them to! #onpoli

iv. I think it is extremely important to note that Ford's student-union-busting

policy, which will devastate all campus activities, was the result of a
consultation process that involved ZERO students - that is, except
for the alt-right ones.

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v. p.s. our daily reminder that they very same variety of ''free speech"
assholes who are freely giving these white supremacists a paid
platform are literally behind Doug Ford's education agenda.

vi. Btw Jordan Peterson was also present at a PC youth event in August
alongside Ford and the Ontario Minister for universities #onpoli

vii. I wish I was joking, but the education policy of the province of Ontario is
driving (sic) by Jordan Peterson and a handful of alt-right ''free speech"
activists, including one guy who appeared on Gavin Mclnnes's (sic)
show.

viii. Oops just remembered that@fordnation &@DrFullertonMPP are going to

kill my student health insurance just to please a handful of alt-right
MAGA chuds #onpoli #cdnpoli #canlab

ix. White Supremacists and MAGA chuds are cheering

x. When Doug Ford says his plan is "For the Students," he literally means
like ... , six students, one of whom appeared on the show of far-right
extremist & Proud Boys gang leader Gavin Mclnnes just last year #onpoli
#canlab #WeAreTheStudents #OSAP

xi. Doug Ford's education policy was developed by Mens Rights

Activists and lobster fanboys

[Each of the above Tweets included a photo of Di Franco, Premier Doug

Ford and Education Minister Merrilee Fullerton, with the caption Did Doug
Ford consult any students for his "For the Students" plan? Yes-but just the alt-
right ones.]

xii. FYI - on this podcast I talk about some of my issues with Doug Ford's
education agenda, why I believe this amounts to an existential threat to
campus life, and I discuss some of the extremist alt-right policies
motivating this government. #onpoli #osap

xiii. Oh hello, I joined @robrousseau on @49thParahell to talk about how Doug

Ford's education agenda has been driven by an alt-right fringe, and
why is poses an existential threat to campus life in Ontario #onpoli
# WeAreTheStudents

xiv. So far, this guy (featured below having a laugh with Gavin Mclnnis (sic),
the alt-right leader of the extremist Proud Boys gang) is the only student to
claim to have been "consulted" ahead of Dou Ford's new "For the Students"
plan. He claims to have given Ford the idea. #Onpoli

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[This Tweet includes a photograph of Michele Di Franco]

xv. Fyi the "free speech" crowd is literally killing all student unions and
campus newspaper in Ontario, make of that what you will.

xvi. Its okay because @cusaonline &@CharlatanLive &@CKCUFM close down

and vacate their offices, there will be more room for the lectures by neo-
N azis and race IQ scientists who universities are now not allowed to
turn away, thanks to Ford's beautiful racist brain.

xvii. Speaking of Ford's failure to consult with elected student leaders, it's never
not worth pointing out that this government is taking its cues from alt-
right bros, lobster fanboys & Men's Rights Activists.

Defendant's Blog Post Available on Medium.com

xviii. But there was one individual on Twitter who insisted that he had been
consulted, and even claims that his student organization had come up with
the idea.

xix. This was Michele Di Franco, Vice President of Finance of the University of
Ottawa's Students for Free Speech. In August 2018, his organization had
participated in a provincial Free Speech Roundtable alongside other Free
Speech groups from the University of Toronto and York University ...

xx. These particular "free speech" groups were formed in recent years in
order to defend the presence of hateful and bigoted views on campus,
from Jordan Peterson's transphobic (sic) conspiracy theories to
Faith Goldy's ethno-nationalism. In fact, these groups often appear
to have alt-right ideological tendencies themselves ...
Defendant's Podcast Interview of January 21, 2019

xxi. Exactly. Their main thing has been to, um, to provide a platform for
anti-feminist speakers, and, uh, one of these guys who went on Gavin
Mcinnes' show last-year before he was banned but this was long after he
had that video 10 Things I Hate About the Jews. You know, he shouldn't
have been on this - you know, it really gives you a sense of like his political
ideology that he would associate with Gavin Mcinnes. And so this group, I
think it was August or September, they posted how they had a meeting with
both Doug Ford and the Minister for Universities, or a nice round table
consultation where they talked.. . [. .. ] Not elected student leaders; like
some random alt-right bro.

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Affidavit of Michele Di Franco, July 29, 2019, at paras. 22 - 44, Exhibits 8 -

24, Exhibit Book Tabs 50, 58-74, p. 391-394, p. 462-496, Respondent's
Compendium at Tabs 4

20. These tweets have been re-tweeted and "liked" by other Twitter users. The

defendant also frequently re-tweeted his own tweets to increase their reach.

Affidavit of Michele Di Franco, July 29, 2019, at para. 4, Tab 50, Exhibit
Book Tab 50, p. 387 Respondent's Compendium at Tab 2

21. On February 19, 2019, a cease-and-desist letter was delivered to the appellant.

Affidavit of Michele Di Franco, July 29, 2019, at para. 185, Exhibit 65,
Exhibit Book Tab 50, p.433, Tab 115, p. 843, Respondent's Compendium at
Tab5

22. On February 22, 2019, the appellant posted the cease-and-desist letter publicly on

his social media accounts.

Affidavit of Michele Di Franco, July 29, 2019, at para. 186, Exhibit 66,
Exhibit Book Tab 50, p. 434, Tab 116, p. 865, Respondent's Compendium at
Tab6

23. The appellant has not removed any of the defamatory content from any media.

24. The appellant concedes that he intentionally insulted Di Franco.

Transcript of Cross-Examination on Affidavit of Michael Bueckert,

September 25, 2019, pg. 42-43, line 17, Q. 164-168, Respondent's
Compendium at Tab 1

25. The appellant never met Di Franco. He's never spoken to him. He's never reached

out to him to discuss his views or his opinions, or to verify his "opinions". The

appellant has written about Di Franco and defamed him publicly on the basis

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of 1) his support of, and his involvement in developing Ford government policies;

and 2) the fact that he was a member of the uOttawa Free Speech Club, a Club that

the appellant clearly disliked.

Transcript of Cross-Examination on Affidavit of Michael Rueckert,

September 25, 2019, pg. 37-42, and pg. 108-109 Q. 447-451, Respondent's
Compendium at Tab 1

26. The defendant denies calling Di Franco a "white supremacist", but here is what

actual tweet looks like:

MlchHI But.ckert mbuecke1t · llh

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v
Can't get over th e fact tha t Ford's ' For the Students· plan makes all acJmin -run
seivices mandato,y while killing funding to all student-run se rvices, and enforces
that outcome wi th threats to defu ncl universi ties. What a wo,ld.

Q 1 t.l. l8 lj 33 El
.,,
A Michael Bueckert l
V "'bu .,1
V

white supremacists and MAGA chuds are

cheering

Old Doug Ford consult :iny students tor his "For the students" plan ?
Yes- out Just the alt-rlgnt ones.
I t I f l

5:57 AM · Feb iorn

,
3 Retweets 8 li kes

Q t L1 3 CJ n

Feb 6, 2019
https://tw!tter.com/mbueckert/stat us/ 1093146655724060673

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Affidavit ofMichele Di Franco, July 29, 2019, at para. 39, Exhibit 24, Exhibit
Book Tab 50, p. 393, Tab 74, p. 496, Respondent's Compendium at Tab 2 &
4

27. Di Franco is third from the right in the photograph. This is the same photograph

used by the plaintiff in most of his tweets where he refers to Di Franco as "extreme

right wing" or "alt-right".

28. The motion judge found that the Twitter messages were part of a series of sixteen

tweets posted by the appellant between January and February 6, 2019. They each

repeated the same or similar messages. She found that a follower might not see

all of the messages at any given time when they used Twitter, but a court could

reasonably find that a person reading them day after day would understand that

the tweets were connected. The motion judged also noted that on January 27, the

appellant described his message that day as "our daily reminder" .3

29. The motion judge also found that a judge hearing the merits of this case could

reasonably reject the appellant's argument that nothing in the messages could

reasonably suggest that Di Franco himself holds such views. Even though no one

in the photo is cheering, a court could reasonably infer that, in the view of the

average reader, those pictured with the premier - whom the appellant accused of

being racist - were to be understood to share his views, and the views of the

"Nazi", "neo-Nazis", "bigots", "race IQ scientist", "white supremacists" and

3 Gomery Decision, para. 45

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"MAGA chuds" for whose benefit the government policies were allegedly

enacted. The placement of the photo next to these words could support this

conclusion.4

30. The motion judge also found that the language used by the appellant, and the

medium through which he delivered most of the statements at issue, "make it

difficult to asses the public interest in protecting his speech." Although tweets are

a recognized medium for political expression, their value as a means of promoting

informed debate is unclear. The messages typically conveyed in tweets - which

often jettison reasoned analysis and debate for pithy, partisan, and often

pejorative, sound bites - could attract less protection. 5

PART III - ISSUES AND ARGUMENT

31. The Defendant has raised four issues in this appeal. For the reasons that follow,

Di Franco submits that the questions must all be answered in favour of Di Franco.

Issue # 1: Does the Anti SLAPP Decision contain an error in law because it
applied a test that was subsequently modified by the SCC in Points?

Position of Di Franco: The motion judge did not make any errors despite
the subsequent SCC decisions in Points and Platnick
because the result have been the same.

4 Gomery Decision, para. 50

5 Gomery Decision, para. 98

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32. When read as a whole, it is discernable that the motion judge's reasons for her

decision followed a logical assessment that is in line with the SCC' s framework in

Pointes and Platnick. It is discernable that the motion judge concluded that:

a. Di Franco had discharged his burden under s. 137.1(4)(a)(i) in satisfying the

motion judge that there were grounds to believe that his underlying claim

was legally tenable and supported by evidence that is reasonably capable

of belief such that the claim can be said to have a real prospect of success; 6

b. Di Franco had shown that there were grounds to believe that the defences,

including the defence of fair comment, had no real prospect of success; 7

c. Di Franco had provided evidence for the motion judge to draw an inference

of likelihood in respect of the existence of the harm and the relevant causal

link; 8

d. Di Franco had shown on a balance of probabilities that he likely has

suffered and will suffer harm, that such harm is a result of the expression

established under s. 137.1(3), and that the corresponding public interest in

allowing the underlying proceeding to continue outweighs the deleterious

effects on expression and public participation. 9

6 Pointes, para. 54 - Respondent's Book of Authorities at Tab 4

7 Pointes, para. 60 - Respondent's Book of Authorities at Tab 4
8 Pointes, para. 71 - Respondent's Book of Authorities at Tab 4
9 Pointes, pas. 82 - Respondent's Book of Authorities at Tab 4

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Issue # 2: Has Di Franco discharged his onus under s. 137.1(4)(a)(i) to

demonstrate that his claim that he was referenced as a "Nazi", "neo-
Nazi", "race IQ scientist", or "white supremacist" has a real prospect of
success?

Position of Di Franco: Di Franco's claim that he was referenced as "Nazi", "neo-

Nazi", "race IQ scientist", or "white supremacist" does have
a real prospect of success.

Section 137.1(4)(a)(i) - Substantial Merit

33. The question under s. 137.1(4)(a)(i) is whether the underlying proceeding has

"substantial merit". Substantial merit must mean something more. While

frivolous suits are clearly insufficient, "something more" cannot require a showing that

a claim is likely to succeed either. While the plaintiff need not definitively

demonstrate that its claim is more likely than not to succeed, the claim must

nonetheless be sufficiently strong that terminating it at a preliminary stage would

undermine the legislature's objective of ensuring that a plaintiff with a legitimate

claim is not unduly deprived of the opportunity to vindicate that claim. For an

underlying proceeding to have "substantial merit", it must have a real prospect of

success - in other words, a prospect of success that, while not amounting to a

demonstrated likelihood of success, tends to weigh more in favour of the

plaintiff. 10

10 Pointes, para. 48 - Respondent's Book of Authorities at Tab 4

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34. Di Franco submits that the motion judge ultimately found that there were grounds

to believe that his claims were legally tenable and supported by the evidence.

There is no reason to disturb her findings.

Issue # 3: Has Di Franco discharged his onus under s. 137.1(4)(a)(ii) to

demonstrate that the appellant's defence of fair comment has no real
prospect of success: a) because the expressions are readily recognizable
as political commentary; and b) because the motion judge's factual
conclusion that the plaintiff's online comments " could
unquestionably be found to be on the far right of the Canadian political
spectrum"?

Position of Di Franco: The motion judge has determined that Di Franco had shown
that there were grounds to believe that the defence of fair
comment had no real prospect of success. Her findings were
underpinned by the evidence and the law, and should not
be disturbed.

Section 137.1(4)(a)(ii) - No Valid Defence

35. Section 137.1(4)(a)(ii) requires the responding party (i.e. plaintiff) to satisfy the

motion judge that there are "grounds to believe" that the moving party (i.e. the

defendant) has "no valid defence" in the underlying proceeding.

36. As with the substantial merit prong (137.1(4)(a)(i), the motion judge here must

make a determination of validity on a limited record at an early stage in the

litigation process - accordingly, this context is to be taken into account in

assessing whether a defence is valid. The motion judge must be able to engage in

a limited assessment of the evidence in determining the validity of the defence.

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37. At paragraph 77 of her decision, the motion judge made the following finding with

respect to the defence of fair comment:

These conclusions apply equally to the defence of fair comment advanced by Mr.
Bueckert. A judge on a summary judgment motion or at a trial could reasonably
II
conclude that his characterization of Mr. Di Franco as a member of the alt-right
II
fringe" or extreme alt-right" were uttered as statements offact, not as statements
of opinion. A judge could also accept Mr. Di Franco's argument that an
endorsement ofa person's right to speak freely, and even offensively, does not imply
support for that person's views on the other issues. Finally, a judge could conclude
that Mr. Di Franco's statements about various political issues did not qualify as
extreme or fringe. As a result, even if Mr. Bueckert's statements about Mr. Di
Franco were accepted as opinion, a judge could conclude that a person could not
honestly express that opinion on the proved facts.

38. The motion judge was satisfied that there were grounds to believe" that the
II

II
appellant had no valid defence" of fair comment. As stated in Platnick, Di Franco
II
was in effect, only required to show that there is f!:. basis" in the record and the

law - taking into account the stage of the proceeding - to support a finding that

the defence the appellant put in play does not tend to weigh more in his favor. 11

Di Franco discharged his onus under 137(4)(a)(ii).

Issue# 4: Has Di Franco discharged his onus under s. 137.1(4)(b) to

demonstrate that the harm he is likely to have suffered outweighs
the public interest in protecting the impugned expressions:

Di Franco position: Di Franco has demonstrated that the harm that he has
suffered and is likely to suffer outweighs the public
interest in protecting the impugned expressions.

11 Platnick, para. 103 - Respondent's Book of Authorities at Tab 6

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Section 137.1(4)(b) - Public Interest Hurdle

39. Section 137.1(4)(b) provides that, to avoid having its proceeding dismissed, the

responding party must satisfy that the motion judge that:

the harm likely to be or have been suffered by the responding party as a

result of the moving party's expression is sufficiently serious that the public
interest in permitting the proceeding to continue outweighs the public
interest in protecting that expression.

40. Section 137.l)(b) is the "crux" or "core" of the s. 137.1 analysis. 12 The open ended

nature of s. 137.1(4)(b) provides courts with the ability to scrutinize what is really

going on in the particular case before them: s. 137.1(4)(b) effectively allows motion

judges to assess how allowing individuals to vindicate their rights through a

lawsuit - afundamental value in its own right in a democracy- affects, in turn, freedom

of expression and its corresponding influence on public discourse and

participation in a pluralistic democracy. 13

Hann Analysis

41. Di Franco had to show on a balance of probability that he "likely has suffered or

will suffer harm, that such harm is a result of the expression established under s.

137.1(3), and that the corresponding public interest in allowing the underlying

12Pointes, para. 61-62 -Respondent's Book of Authorities at Tab 4

13Pointes, para. 81 -Respondent's Book of Authorities at Tab 4; Platnick, para. 139 -
Respondent's Book of Authorities at Tab 6

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proceeding to continue outweighs the deleterious effects on expression and public

participation" .14

42. As a prerequisite to the weighing exercise, the statutory language therefore

requires two showings: (i) the existence of harm and (ii) causation - the harm was

suffered as a result of the moving party's expression. 15

43. Either monetary harm or non-monetary harm can be relevant to demonstrating (i)

above. Reputation is one of the most valuable assets a person can possess.

Accordingly, harm is not limited to monetary harm, and neither type of harm is

more important than the other. The text of the provision does not depend on a

particular kind of harm, but expressly refers only to harm in general.

44. General damages are presumed in defamation actions, and this alone is sufficient

to constitute harm. 16 The magnitude of the harm will be important in assessing

whether the harm is sufficiently serious that the public interest in permitting the

proceeding to continue outweighs the public interest in protecting the

expression.17

14 Pointes, para. 82 -Respondent's Book of Authorities at Tab 4; Platnick, para. 141 -

Respondent's Book of Authorities at Tab 6
15 Pointes, para. 68 - Respondent's Book of Authorities at Tab 4 Platnick, para. 142 -

Respondent's Book of Authorities at Tab 6

16 Pointes, para. 71, Respondent's Book of Authorities at Tab 4; Torstar, at para. 28,

Platnick, 142-Respondent's Book of Authorities at Tab 6

17 Pointes, para 144 - Respondent's Book of Authorities at Tab 4

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45. Further, since s. 137.1(4)(b) is a weighing exercise, there is no threshold

requirement for the harm to be sufficiently worthy of consideration. The

magnitude of the harm becomes relevant when the motion judge must determine

whether it is "sufficiently serious" that the public interest in permitting the

proceeding to continue outweighs the public interest in protecting the expression.

46. It must be recalled that for the purposes of s. 137.1(4)(b), harm need not be

monetized, as both "monetary harm or non-monetary harm can be relevant to

demonstrating" the existence of harm. 18 The plaintiff must simply provide

evidence for the court "to draw an inference of likelihood in respect of the

existence of the harm and the relevant causal link" .19

47. For the purpose of deciding this s. 137.1 motion, Di Franco's harm is extensive and

quite serious. The Defamatory Statements are searchable online. He's been

threatened and harassed by strangers. He's been approached by a fellow student.

He's been embarrassed. The content is available online will be viewed by

prospective employers, such as law firms.

48. Once the existence of harm is established, the next question depends on whether

that harm was suffered as a result of the defendant's expression. 20 In this case,

18 Pointes, para. 68-71 - Respondent's Book of Authorities at Tab 4; Platnick, para. 149
Respondent's Book of Authorities at Tab 6
19 Pointes, para. 71 - Respondent's Book of Authorities at Tab 4; Platnick, para. 154 -

Respondent's Book of Authorities at Tab 6

20 Platnick, para. 150 -Respondent's Book of Authorities at Tab 6

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that question is easily answered. The harm suffered is solely attributable to the

Defamatory Statements of the appellant.

Weighing of the Pubic Interest

49. Once harm has been established and shown to be causally related to the

expression, s. 137.1(4)(b) requires that the harm and corresponding public interest

in permitting the proceeding to continue be weighed against the public interest in

protecting the expression. Therefore, as under s. 137.1(3), public interest becomes

critical to the analysis.

50. However, the term "public interest" is used differently ins. 137.1(4)(b) than ins.

137.1(3). Under s. 137.1(3), the query is concerned with whether the expression

relates to a matter of public interest. The assessment is not qualitative - i.e. it

does not matter whether the expression helps or hampers the public interest.

Under s. 137.1(4)(b), in contrast, the legislature expressly makes the public interest

relevant to specific goals: permitting the proceeding to continue and protecting the

impugned expression. Therefore, not just any matter of public interest will be

relevant. Instead, the quality of the expression, and the motivation behind it, are

relevant here.

51. Indeed, "a statement that contains deliberate falsehoods, [or] gratuitous personal

attacks ... may still be an expression that relates to a matter of public interest.

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However, the public interest in protecting that speech will be less than would have

been the case had the same message been delivered without the lies, [or] vitriol" .21

52. Di Franco submits that permitting his claim to proceed will deter others not from

speaking out against government policy, but from unnecessarily engaging in

personal and libelous attacks on an individual in a way that not connected to the

public interest. It will also deter others from making defamatory remarks against

an individual without first substantiating, or attempting to substantiate, the

veracity of their allegations. In this way, rather than disincentiviing people from

speaking out against government policies, it will incentivize them to act with

reasonable due diligence and to tailor their expression so as to avoid needlessly

defaming an individual who depends on their reputation for their livelihood.

53. Thus, while the appellant's references to Di Franco fall at the low end of the

protection-deserving spectrum, his messages broadly as pertaining to the

government policies in Ontario fall closer to the high end. In the end though, when

considered as a whole, the public interest in protecting the appellant's use of

unfounded pejorative terms against Di Franco lies at the low end of the spectrum.

21Pointes, para. 75 - Respondent's Book of Authorities at Tab 4; Able Translations Ltd. v.

Express International Translations Inc., 2016 ONSC 6785, at paras. 82-84 and 96-103, aff'd
2018 ONCA 690 - Respondent's Book of Authorities at Tabs 7 & 8

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54. The harm likely to be or have been suffered by Di Franco lies closer to the high

end of the spectrum, and so too does the public interest in allowing the proceeding

to continue.

55. In the end, this is not the type of case that comes within the legislature's

contemplation of one deserving to be summarily dismissed at an early stage, nor

does it come within the language of the statute requiring such a dismissal.

PART IV - STATEMENT OF ADDITIONAL ISSUES

56. Di Franco does not raise any additional issues on this appeal.

PART V - STATEMENT OF ORDER

57. An Order dismissing the appeal;

58. Costs of the appeal on a full indemnity basis; and

59. Such further and other relief as this Honourable Court may deem just.

ALL OF WHICH IS RESPECTFULLY SUBMITTED h 30th

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VICE & HUNTER LLP

Barristers & Solicitors
101-85 Plymouth Street
Ottawa, ON KlS 3E2

J.F. Lalonde
LSO# 50476V
[email protected]
Tel: 613-232-5773
Fax: 613-232-3509

Lawyers for the plaintiff (respondent)

26
 Court File No. C68341

COURT OF APPEAL FOR ONTARIO

BETWEEN:

MICHELE DI FRANCO

Plaintiff (Respondent)

and

MICHAEL BUECKERT

Defendant (Appellant)

CERTIFICATE

I estimate that 120 minutes will be needed for my oral argument of the appeal, not

including reply. An order under subrule 61.09(2) (original record and exhibits) is not

required.

DATED AT Ottawa, Ontario this 30 th day of April, 202 . ',

\ \

\\

27
2

VICE & HUNTER LLP

Barristers & Solicitors
101-85 Plymouth Street
Ottawa, ON KlS 3E2

J.F. Lalonde
LSO# 50476V
[email protected]
Tel: 613-232-5773
Fax: 613-232-3509

Lawyers for the plaintiff (respondent)

28
 SCHEDULE II A"

LIST OF AUTHORITIES

1. Housen v. Nikolaisen, 2002 SCC 33

2. Simpson v. Mair, 2008 SCC 40 (S.C.C.)
3. 1704604 Ontario Ltd. V. Pointes Protection Association, 2018 ONCA 685
4. 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22
5. Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130
6. Bent v. Platnick, 2020 SCC 23
7. Able Translations Ltd. v. Express International Translations, 2016 ONSC 6785
8. Able Translations Ltd. v. Express International Translations, 2018 ONCA 690

29
MICHELE DI FRANCO -and- MICHAEL BUECKERT
Plaintiff (Respondent) Defendant (Appellant)
Court File No. C68341

COURT OF APPEAL FOR ONTARIO

PROCEEDING COMMENCED AT
OTTAWA

AMENDED FACTUM OF THE PLAINTIFF

(RESPONDENT)

VICE & HUNTER LLP

Barristers & Solicitors
101-85 Plymouth Street
Ottawa, ON K1S 3E2

J.F. Lalonde
LSO#50476V
[email protected]
Tel: 613-232-5773
Fax: 613-232-3509

Lawyers for the Plaintiff (Respondent in Appeal)

Box407

30