Court File No.

CV-19-00079414

ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MICHELE DI FRANCO

Plaintiff
(Responding Party)

- and -

MICHAEL BUECKERT

Defendant
(Moving Party)

DEFENDANT’S FACTUM (for Motion pursuant to section 137.1

of the Courts of Justice Act, R.S.O. 1990, c. C.43 )

PART I: OVERVIEW AND FACTS

A. Overview

1. The Defendant brings the present motion pursuant to section 137.1 of the Courts of
Justice Act, R.S.O. 1990, c. C.43 (“the Act”) because his freedom of expression has been chilled
on a matter of public interest and political concern affecting Ontario Universities and their post-
secondary students. The Plaintiff, as a contributor to prominent policy discussion relating to the
Ford government’s plan to require Universities to permit speakers from the far right, alt-right and
extreme right to speak on campuses, was publicly criticized by the Defendant who opined that the
Plaintiff’s politics are alt-right. In response to this lawful expression, the Plaintiff, who describes
himself as a free-speech advocate, sued the Defendant in defamation.

2. The irony of the Plaintiff’s claim should not be lost on the Court: that a free speech
proponent is suing to quell the speech of a critic in the realm of public and policy discussion
affecting post-secondary students, by a post-secondary student in Ontario. To succeed in the

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 present motion, the Defendant must establish that the alleged defamation relates to a matter of
public interest subject to the Plaintiff establishing that there are reasonable grounds to believe that
the proceeding has substantial merit, there is no valid defence, and that the harm suffered by the
Plaintiff outweighs the interest in protecting the expression at issue.

3. It is clear that the expressions at issue relate to a matter of public interest such that
the determination of this motion hinges on the “Merits-Based Hurdle” of the test under section
137.1 of the Act. However, the merits of the Plaintiff’s claim do not outweigh the public interest
in the Defendant’s expression. Not even remotely. The Plaintiff’s claim lacks substantial merit
because the Defendant’s impugned communications are incapable of supporting a defamatory
meaning and, in part, do not even refer to the Plaintiff. Moreover, even if the Plaintiff were able
to establish that his pleaded claims meet the requirements of defamation, it is clear that the
Defendant’s defences are reasoned, evidence-based and valid. In particular, the Plaintiff, as an
admitted conservative and having endorsed statements by alt-right speakers, including Gavin
McInnes, Alex Jones, Janice Fiamengo, Lauren Southern, Jack Posobiec, Paul Joseph Watson and
Maxime Bernier and having self-described his politics to be “Milo [Yiannopoulos]”, has painted
a portrait of himself on social-media as being alt-right. Based on the fact of these
endorsements, likes, and comments made in favor of these alt-right interlocutors and their
commentary, which the Plaintiff himself admits to having authored, the Plaintiff is likely alt-right.

4. The Plaintiff’s self-identification as a “free speech advocate” who supports a free

speech platform for all those whose voice is being silenced - is a sham. The Plaintiff does not
believe in unfettered free speech. He has failed in his onus to demonstrate any meaningful or
balanced protection or advocacy of leftist expression, which is consistent with his admitted political
affiliation to conservatism, 1 making him, at best, selective in his free-speech advocacy. He has
refused to indicate whether he believes that those commentators, who espouse alt-right views, are
racists or propagators of racist messages. 2 He has instead attempted to defend the public record of
racist, Islamophobic and anti-immigrant commentators whom he has supported on social media.

1
Affidavit of M. Di Franco, Plaintiff’s Motion Record [“PMR”], at para. 11 [PMR page 3].
2
Transcript of Cross-Examination of Michele Di Franco (Sept 30, 2019) at pages 33, 36, 37, 40, 42, 44, 45,
66, 68, 77, 79, 82, 83 [Joint Supplementary Record (“JSR”) Tab 1]. See also: Tab C to this factum –
“Summary of Objections: Cross-Examination on Affidavit of Michele Di Franco”.

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 Moreover, whatever brand of free speech advocate he may be, such a label is completely
compatible with being a conservative and alt-right free speech advocate and is also consistent with
an evidence-based conclusion (based on the current record before the Court) that he is himself a
proponent and adherent of the alt-right. It is the Plaintiff’s onus to provide evidence that would
undermine a validly raised defence. In this case, the bare assertion by the Plaintiff that he supports
free speech 3 does not displace the strong evidence that he supports, endorses and is part of a
movement that selectively provides a platform to alt-right commentators. In sum, the Plaintiff’s
best argument falls well short of invalidating the Defendant’s defences in truth and fair comment.

5. In relation to the final component of the Merits Based Hurdle, the Plaintiff has
adduced no evidence of harm that justifies silencing the Defendant’s expressed criticisms of his
political commentary on social media. The Plaintiff’s education, career or job prospects have not
been undermined, he has not suffered pecuniary loss and, if anything, the Defendant’s criticisms
of the Plaintiff do not impede or mischaracterize the tenor of the Plaintiff’s own social media
commentary.

6. The Plaintiff’s abusive tactics epitomize what section 137.1 of the Courts of Justice
Act was designed to prevent: strategic and calculated litigation aimed at silencing important
criticism that touches on important social and public policy discussions. 4 That the Plaintiff has
attempted to justify his strategic ploy to silence the Defendant as being in defence of free speech
represents a blatant abuse that calls out for this Court to dismiss the Plaintiff’s claim.

B. Facts

7. The Defendant is the subject of a defamation action filed by the Plaintiff for
communications he made on Twitter, on a blog post on medium.com, and in an interview on a podcast
hosted by Rob Rousseau (together, the “Publications”). 5 The statements complained of relate to
policies enacted by the Government of Ontario with respect to free speech on campus, university fees,

3
Di Franco Affidavit at paras. 12 and 90 [Defendant’s Motion Record (“DMR”), pages 3, 23-24].
4
1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 (CanLII) at para 45 [“Pointes”]
[Defendant’s Book of Authorities (“BOA”), Tab 1].
5
Exhibit “C”, Defendant’s Motion Record [“DMR”, pages 117-131].

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and funding of student organizations. 6

8. The Defendant is a graduate student studying sociology and political economy at

Carleton University. 7 He comments frequently on matters of public interest, including politics and
student issues. His comments are often disseminated on his social media, including Twitter, on which,
as of July 13, 2019, he had 5,952 followers. 8 The Defendant is politically progressive and identifies
with the left end of the political spectrum. 9

9. At the material time, the Plaintiff was a master’s student at the University of Ottawa
and Vice President of Finance of the University of Ottawa Students for Free Speech (“UOSFS”). 10
He is now a law student at Albany Law School in New York State. 11

10. The Plaintiff is a supporter of numerous far right and alt-right public figures and has
repeatedly endorsed and promoted far right and alt-right views, including those of Gavin McInnes, 12
Milo Yiannopoulos, 13 and Alex Jones. 14

11. In June 2018, the Defendant began publicly criticizing the Ford government’s
education policy initiative to promote ‘free speech’ on university campuses in Ontario. 15 In the
Defendant’s view, the initiative was designed to require universities to permit speakers from the far
right, alt-right, and extreme right of the political spectrum to give talks on campuses. 16

12. The Plaintiff was involved in the formulation of this policy. He and other
representatives of ‘free speech’ organizations from university campuses had been invited by the Ford

6
Affidavit of Michael Bueckert [“Bueckert Affidavit”], at paras 10 and 11 [DMR, pages 67-68].
7
Bueckert Affidavit, at para 4 [DMR, page 65].
8
Di Franco Affidavit at para 5 [PMR, page 2].
9
Bueckert Affidavit at para. 4 [DMR, page 2].
10
Statement of Claim, at para 2 [DMR, Tab 2].
11
Di Franco Affidavit, para 199 [DMR, page 51]; Transcript of Cross-Examination of M. Di Franco cites
residence as Albany, New York [JSR, Tab 2, page 1].
12
Bueckert Affidavit, at paras 32-42 [DMR, Tab 5].
13
Ibid at paras 46-49 [DMR Tab 5].
14
Ibid at paras 44 and 45 [DMR, Tab 5].
15
Ibid at para 13 [DMR, Tab 5].
16
Ibid at para 10 [DMR, Tab 5].

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government to a consultation in Toronto on August 30th, 2018. 17

13. The Defendant’s public criticisms of this policy began in June 2018 18 and continued
into February 2019. The criticisms were published on his social media and other internet venues. 19

14. The Plaintiff’s name first appeared in these criticisms beginning in January 2019 and
continuing into February 2019. 20 In his critiques, the Defendant suggested that the Plaintiff’s
influence on the government’s ‘free speech’ and ‘Student Choice Initiative’ policy was problematic
because he was a proponent of the ‘alt-right’.

15. As indicated below, the Defendant’s critique of the Plaintiff’s influence was
expressed in three places: a) on the Plaintiff’s Twitter and Facebook accounts, 21 b) in a blog post
authored by the Defendant and published on medium.com, 22 and c) in an interview given by the
Defendant on Rob Rousseau’s podcast hosted by ricochet.media (together referred to as “the
Publications”).

a) Defendant’s Tweets Impugned by the Plaintiff 23

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 fascist.

II. 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

III. 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.

IV. @fordnation & @DrFullertonMPP are killing funding for: LGBTQ students [;]
Racialized students [;]Indigenous students [;]Sexual violence prevention [;]
17
Statement of Claim, at para 4 [DMR, Tab 2].
18
Bueckert Affidavit, at para 13 [DMR, Tab 5].
19
Bueckert Affidavit, Exhibits “C”, “D” “E” [ DMR pages 116-139].
20
Bueckert Affidavit, at para 16 [DMR, Tab 5].
21
Tweets by Bueckert re Di Franco [DMR, Tab 5C].
22
Blog Post titled “Did Doug Ford Consult Any Students for His “For the Students” Plan” by Bueckert
[DMR, Tab 5D].
23
Statement of Claim, at 8 [DMR, Tab 2].

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 Campus food bank [;] & more just because a handful of extremist alt-right dudes
told them to! #onpoli

V. 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.

VI. 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.

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

VIII. I wish I was joking, but the education policy of the province of Ontario is driving
(sic) by Jordan Petersonand a handful of alt-right “free speech” activists,
including one guy who appeared on Gavin McInnes’s (sic) show.

IX. 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

X. White Supremacists and MAGA chuds are cheering

[Each of the above Tweets included a photo of the Plaintiff, Premier Doug Ford and Education
Minister Merrilee Fullerton]

XI. 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

XII. 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

XIII. 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 McInnes just last year #onpoli #canlab
#WeAreTheStudents #OSAP

XIV. So far, this guy (featured below having a laugh with Gavin McInnis (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

[Note: The Tweet includes a photograph of Mr. Di Franco]

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 XV. Fyi the “free speech” crowd is literally killing all student unions and campus
newspapers in Ontario, make of that what you will.

XVI. Its okay because when @cusaonline & @CharlatanLive & @CKCUFM close
down an vacate their offices, there will be more room for the lectures by neo-Nazis
and race IQ scientists who universities are now not allowed to turn away, thanks
to Ford’s beautiful racist brain.

b) Defendant’s Blog Post Available on Medium.com Impugned by the Plaintiff 24

XVII. 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.

XVIII. This was Michele Di Franco, Vice President 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…

XIX. 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…

c) Defendant’s Podcast Interview of January 21, 2019 Impugned by the Plaintiff 25

XX. 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.

16. On February 19th, 2019, Plaintiff’s counsel emailed and mailed a cease and desist
letter to the Defendant. 26

17. On February 22nd, 2019, the Defendant posted the cease and desist letter publicly on

24
Blog Post titled” Did Doug Ford Consult Any Students for His “For the Students Plan” by Bueckert
[DMR, Tab 5D].
25
Transcript of Rob Rousseau’s Interview of Bueckert [DMR, Tab 5E].
26
Bueckert Affidavit, at para 19 [DMR, Tab 5].

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his social media accounts along with his own counsel’s response letter. 27 The posts reiterated the
Defendant’s view that the Plaintiff is a proponent of the alt-right but offered to retract the impugned
statements if he publicly distanced himself from Gavin McInnes’s racism, one of the alt-right public
figures Di Franco publicly supported.

18. To date, the Plaintiff has not publicly – whether on social media or in the course of the
current proceeding –clarified or explained his personal views of the alt-right public figures he has
endorsed on social media and has instead chosen to cast doubt on the Defendant’s characterization of
these figures, while attempting to defend their record. 28

PART II: ISSUES ARISING ON THE PRESENT MOTION

Issue 1: Do the Defendant’s communications constitute “expressions” on a matter of public interest

that attract protection under section 137.1 of the CJA?

Issue 2: Can the Plaintiff prove, on a balance of probabilities, there are reasonable grounds to
believe:

(i) That the Plaintiff’s claim in defamation has substantial merit; and

(ii) That the Defendant has no valid defense to the defamation claim?

Issue 3: Does the public interest in continuing proceeding outweigh the public interest in protection
the moving party’s expression?

PART III: LAW AND ARGUMENT

Issue 1: The Defendant’s communications clearly constitute “expressions” on a matter of public

interest that attract protection under section 137.1 of the CJA

A. Section 137.1(3) Threshold Requirement

19. Ontario’s most recent legislative response to SLAPPs arose in November 2015 with
the coming into force of the Protection of Public Participation Act (the “Act”). 29 The Act, in addition

27
Tweets by Bueckert re Retraction [DMR, Tab 5H].
28
[Re: McInnes] Di Franco Affidavit at para. 59 (g) [PMR page 13]; para. 129 [PMR page 31]; para. 131
[DMR page 32]; [Re: Fiamengo] at para. 133 (c) [PMR page 32]; [Re : Jones] para. 137 [PMR page 35];
[Re: Bernier] at paras. 168, 169 and 172 [PMR pages 42-43].
29
Protection of Public Participation Act, SO 2015, c 23 [BOA, Tab 17].

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to amending other statutes, introduced sections 137.1 to 137.5 of the Courts of Justice Act (“CJA”). 30
Those sections created a new pretrial procedure to allow defendants to expeditiously move to dismiss
claims that are based in expressions pertaining to matters of public interest. 31

20. Section 137.1(3) of the CJA sets the initial threshold that the defendant or moving
party must meet in advancing an anti-SLAPP motion. The CJA states that a motion judge must dismiss
an action, subject to s. 137.1(4), if they are satisfied that the action “…arises from the Defendant’s
expression on matters related to public interest” (the “Threshold Requirement”). 32

21. To meet the Threshold Requirement, the Defendant has the onus to satisfy the motion
judge of two issues on a balance of probabilities. First, the Defendant must show that the Plaintiff’s
33
claim arises from the Defendant’s expression(s). Second, the Defendant must show that their
expression(s) relate to matters of public interest. 34 At paragraph 105 of Grant v Torstar (‘Grant’), the
Supreme Court interpreted the phrase “public interest” as follows:

To be of public interest, the subject matter “must be shown to be one inviting public
attention, or about which the public has some substantial concern because it affects
the welfare of citizens, or one to which considerable public notoriety or controversy
has attached”: Brown, vol. 2, at pp. 15-137 and 15-138. […] Some segment of the
public must have a genuine stake in knowing about the matter published. 35 [Emphasis
added]

22. The analysis of what constitutes the public interest is contextual and requires the
motions judge to consider the communication as a whole rather than incidental statements on matters
related to the public interest. 36

23. The quality and merits of the expressions are irrelevant to whether they are related to
the public interest. 37 While the Courts have not identified an exhaustive list of topics that fall within
the umbrella of “public interest”, the conduct of governmental affairs is a subject that clearly has been

30
Courts of Justice Act, RSO 1990, c C 43 [“CJA”] [BOA, Tab 16].
31
Pointes, supra note 4 at para 6 [BOA, Tab 1].
32
CJA, supra note 30 at s 137.1(3) [BOA, Tab 16].
33
Pointes, supra note 4 at para 52 [BOA, Tab 1].
34
Ibid at paras 51and 58.
35
Grant v Torstar Corp, 2009 SCC 61 at para 105, [2009] 3 SCR 640 [“Grant”] [BOA, Tab 2].
36
Pointes, supra note 4 at para 60 [BOA, Tab 1].
37
Ibid at paras 61 and 63.

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found to be a matter of public interest. 38

B. Defendant meets both prongs of the s. 137.1(3) Threshold Requirement

24. First, the Plaintiff’s Claim in defamation is solely grounded in the Defendant’s
written communications and thus meets the expression requirement of s. 137.1(3). Second, the
Defendant’s expressions relate to matters within the public interest, which include, but are not limited
to the following: (a) The political ideologies of individuals and groups with whom the Premier of
Ontario associates with; (b) The affairs of the Government of Ontario, in particular the purpose of the
Premier’s Student Choice Initiative and Free Speech Policy (‘The Impugned Policies’); (c) The
impacts of the Impugned Policies on Post-Secondary Education Campuses and Ontario’s post-
secondary students; (d) the methods used by Premier Ford to develop the Impugned Policies; (e ) The
merits of the Impugned Policies; and, (f) The individuals and/or groups who advocate for the
Impugned Policies.

25. The above concerns are matters in which the public, especially post-secondary
students in Ontario, has a vested interest. They deal with questions of why and how these policies
were developed, and the potential impact for students across the province. Significantly, even in his
Statement of Claim, the Plaintiff acknowledges that the Impugned Statements relate to political
opinion and discourse “seemingly as part of his opposition to the Ford government’s Student Choice
Initiative. 39

26. While the Defendant takes issue with the characterization of his expressions as
defamatory, at this stage of the analysis, neither the merits, manner nor motive of the impugned
expressions is relevant. As the expressions clearly relate to matters of public interest, pursuant to the
analysis provided for in Pointes and Grant, the present motion satisfies the s. 137.1(3) Threshold
Requirement.

Issue 2: The Plaintiff cannot establish on a balance of probabilities that there are reasonable
grounds to believe (a) That the Plaintiff’s claim in defamation has substantial merit; and (b)
That the Defendant has no valid defense to the defamation claim.

38
Pointes, supra note 4 at para 59 [BOA, Tab 1].
39
Statement of Claim at 7, para 6 [DMR, Tab 2].

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A. The Merits-Based Hurdles: Section 137.1(4)

27. Section 137.1(4)(a) of the CJA places an onus on the Plaintiff to satisfy the motion
judge that there are grounds to believe two factors on a balance of probabilities: 40 (the “Merits-based
hurdles”): (i) the proceeding has substantial merit, and, (ii) the moving party has no valid defence in
the proceeding; … 41 While the word “reasonable” does not appear within s. 137.1(4)(a), by
implication those grounds are required to be reasonable. 42

28. The Defendant submits that pursuant to s. 137.1(4)(a) the Plaintiff cannot satisfy,
on a balance of probabilities, either that there are reasonable grounds to believe the defamation claim
has substantial merit or that the Defendant has no valid defence.

Issue 2(a): The Plaintiff’s claim lacks substantial merit

(i) Substantial Merit Test

29. To satisfy on a balance of probabilities that there are reasonable grounds to believe
the claim has substantial merit, the onus is on the Plaintiff to demonstrate more than that the claim
43
“has some chance of success”. The Plaintiff must show that the claim is “legally tenable and
supported by evidence, which could lead a reasonable trier to conclude that the claim has a real chance
of success.” 44

30. To make out substantial merit under s. 137.1(4)(a)(i) of the Act, in order to establish
“grounds to believe” the Plaintiff must put forward more than “bald allegations, unsubstantiated
damage claims, or unparticularized defences”. 45 The standard imposed by the test requires
substantive evidence-based grounds and is a clearly higher standard than the dismissal threshold for
a “frivolous or fleeting” case. 46 Where the Plaintiff fails to demonstrate reasonable grounds to believe

40
Pointes, supra note 4 at para 68 [BOA, Tab 1].
41
CJA, supra note 30 at s 137.1(4)(a) [BOA, Tab 16].
42
Pointes, supra note 4 at para 69 [BOA, Tab 1]; see also: Platnick v Bent, 2018 ONCA 687 at para 48,
[2018] OJ No 4445 [BOA, Tab 3].
43
Pointes, supra note 4 at para 80 [BOA, Tab 1].
44
Ibid.
45
Ibid at para 82.
46
Ibid at para 111.

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the claim has substantial merit, the action against the Defendant should be dismissed outright.47

(ii) The Plaintiff’s claim does not satisfy the elements of defamation

31. For the tort of defamation, the Plaintiff must establish three things:

(1) that the impugned words were defamatory, in the sense that they would tend to lower the
plaintiff’s reputation in the eyes of a reasonable person;

(2) that the words in fact referred to the plaintiff; and

(3) that the words were published, meaning that they were communicated to at least one person
other than the plaintiff. 48

32. As discussed below, the Plaintiff’s claim in defamation must fail for two main
reasons. Firstly, the sting of several of the Impugned Statements do not refer to the Plaintiff. Secondly,
the remainder of the statements do not convey defamatory meaning, including those ascribed to them
by the Plaintiff.

(iii) The sting complained of does not refer to the Plaintiff

33. The “sting” of several Tweets alleged to be Defamatory at page 8 of the Plaintiff’s
Statement of Claim are not directed towards the Plaintiff, particularly the following:

1) Tweet dated January 17th, 2019: “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.”

2) Tweet dated February 6th, 2019: “Its okay because when @cusaonline
& @CharlatanLive & @CKCUFM close down and vacate their offices,
there will be more room for the lectures by the neo-Nazis and race IQ
scientists who universities are now not allowed to turn away, thanks to
Ford’s beautiful racist brain.”

3) Tweet dated February 6th, 2019: “White supremacists and MAGA

Chuds are cheering”

47
Armstrong v Corus Entertainment Inc, 2018 ONCA 689 at para 66, [2018] OJ No 4441 [“Armstrong”]
[BOA, Tab 4].
48
Grant, supra note 2 at para 28 [BOA, Tab 2].

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 [Published above a photo of the Plaintiff with Premier Doug Ford – No
one is cheering in the photo]

34. Taken in their entirety and in the context of the other tweets and public statements
made by the Defendant, the tweets meant and were understood to mean the following:

(a) Premier Doug Ford’s “Free-Speech” policy for university campuses would require
universities to permit individuals with bigoted, offensive views to speak on post-
secondary campuses; and,

(b) Individuals with bigoted, offensive views, including neo-nazis, race IQ scientists, and
white supremacists, would be supportive of this policy.

35. Communicating that a government policy would have the effect of allowing
offensive, bigoted individuals to speak on campus is not defamatory. Alternatively, if the above
meanings are defamatory, they are not defamatory to the Plaintiff as the statements are not directed
towards him, nor would a reasonable person identify him as one of the “white supremacists” and
“MAGA Chuds” who are “cheering” because no one in the photo is cheering.

(iv) The remainder of the Impugned Tweets do not convey defamatory meaning

36. At page 12 of the Plaintiff’s Statement of Claim, the Plaintiff alleges that the
Impugned Tweets convey the following meanings: (a) he is a white supremacist; (b) he is a white-
separatist, anti-Semite, neo-Nazi, neo-Facist, neo-Confederate, Holocaust denier, conspiracy theorist,
or part of other far right fringe hate groups; (c) he is intolerant towards women; (d) he is a “race IQ
scientist”.

37. Read in their entirety and within the context of the Defendant’s other public
statements and Tweets, the Impugned Tweets were meant to communicate that:

a) The Plaintiff harbours alt-right views, including views that are: (i) illustrative of a
concern about border security and immigration; (ii) supportive of a Donald Trump
presidency; and (iii) critical of political correctness; and,

b) The Plaintiff is a “free speech asshole”.

38. The Defendant’s expression that the Plaintiff harbours alt-right views does not

13
constitute a defamatory meaning as defined by the Supreme Court in Grant as these intended
meanings would not diminish or harm the reputation of the Plaintiff in the eyes of a reasonable person.
Moreover, while the Defendant’s use of the term “asshole” may constitute vulgar abuse, the Ontario
Court of Appeal has long held the view that a mere insult does not have a defamatory impact in the
view of reasonable persons. 49 “Mere vulgar abuse” is also not considered per se to constitute
defamation. 50

(v) The Impugned Article does not convey defamatory meaning towards the Plaintiff

39. At page 13 of the Statement of Claim, the Plaintiff alleges that the following
statements convey defamatory meaning towards him:

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

This was Michele Di Franco, Vice President Finance of the University of Ottawa
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. […]

These particular “free speech” groups were formed in recent years in order to defend
the presence of hateful bigoted views on campus, from Jordan Peterson’s transphobic
conspiracy theories to Faith Goldy’s ethno-nationalism. In fact, these groups often
appear to have alt-right tendencies themselves; […] [Emphasis added in Statement of
Claim] 51

40. The Plaintiff alleges that the above passages convey the following meanings: (a) he
is part of an organization that is bigoted; (b) he is part of an organization that is transphobic; (c) is
part of an organization that is ethnic-nationalist; and (d) he is part of an organization that is white-
supremacist. 52

41. However, a reasonable and informed reading of this information suggests that the

49
Major v McGregor, [1902] OJ No 16 at para 15, 5 OLR 81 (Ont HCJ), aff’d [1903] OJ No 186, 6 OLR
528 (Ont CA) at para 15 [BOA, Tab 5].
50
French v Smith, [1922] OJ No 6 at para 7, [1923] 3 DLR 902 (Ont HC) [BOA, Tab 6]; See also R v Lucas,
[1998] SCJ No 28 at para 78, [1998] 1 SCR 439 [BOA, Tab 7].
51
Statement of Claim at 18 [DMR, Tab 2].
52
Ibid at 18-19, para 15 [DMR, Tab 2].

14
Impugned Article does not convey those meanings; rather, the article conveys the following
meanings, which are not defamatory towards the Plaintiff:

(a) University of Ottawa Students for Free Speech (‘UOSFS’) is one of several ‘free speech’
organizations that were formed to defend the presence of discriminatory views on
campuses in Ontario;

(b) Some of these organizations appear to have alt-right tendencies themselves; and,

(c) These organizations, including UOSFS, have hosted speakers who espouse discriminatory
views.

42. The above factual observations were not made in respect of the Plaintiff alone and
reflect a true and accurate statement in respect of the objectives and work of the identified free-
speech organizations.

(vi) The Impugned Podcast does not convey defamatory meaning towards the Plaintiff

43. At page 14, paragraph 17 of the Statement of Claim, the Plaintiff alleges that the
following statements convey defamatory meaning towards him:

Bueckert: Exactly. Their main thing has been to, um, provide a platform for anti-
feminist speakers and, uh, one of those guys 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 – […]

Bueckert: Exactly. Not elected student leaders; like some random alt-right bro.

44. The Plaintiff alleges that the above passages refer to himself and UOSFS, and
communicate that: (a) he is “alt-right”; (b) a racist; (c) a misogynist; and, (d) anti-Semitic. 53

45. Contrary to the meanings alleged above, the passages imply that the Plaintiff
harbours alt-right views by virtue of his association with Gavin McInnes and his views that are: (a)
illustrative of concern about border security and immigration; (b) supportive of a Donald Trump

53
Statement of Claim at 20, para 18 [DMR, Tab 2].

15
presidency; and, (c) critical of political correctness.

46. Moreover, being called “alt-right” is not defamatory – it is an ideological view that
is held by persons whom the Plaintiff has publicly endorsed on social media, has associated with and
has refused to distance himself from. People identify themselves as having various beliefs across the
political spectrum including being “alt right”. The fact that the Plaintiff purportedly eschews this
label does not make it defamatory of him, nor does his denial of the label mean that the label is
inappropriate or ill-fitting.

Issue 2 (b) Plaintiff has not established that Defendant has no valid defences in the proceeding

(i) Test for no “valid defence”

47. The second arm of the Merits-Based Hurdle, section 137.1(4)(a)(ii) (reproduced
above), requires the Plaintiff to show on a balance of probabilities that there are reasonable grounds
to believe that the Defendant has no valid defence in the proceeding. That is, once the Defendant
advances any proposed “valid defence” in the pleadings, and/or in the material filed on the s. 137.1
motion, the burden moves to the Plaintiff to demonstrate that a reasonable trier would not accept the
defences put forward by the Defendant. The Court of Appeal describes this burden shift as follows: 54

Once the defendant has put a defence in play, the persuasive burden moves to the
plaintiff to satisfy the motion judge that there are reasonable grounds to believe that
none of the defences put in play are valid. 55

48. The term “valid” has been interpreted in Pointes to mean “successful”. That is:

[…] The onus rests on the plaintiff to convince the motion judge that, looking at the
motion record through the reasonableness lens, a trier of fact could conclude that none
of the defences advanced would succeed. If that assessment is among those reasonably
available on the record, the plaintiff has met its onus. 56 [Emphasis added]

49. Stated alternatively, the onus on the Plaintiff is to demonstrate that a reasonable trier

54
Pointes, supra note 4 at para 83 [BOA, Tab 1].
55
Ibid.
56
Ibid at para 84.

16
could conclude that the defence would not succeed. 57 Significantly, once the Defendant has put a
valid defence in play, no onus is then placed upon the Defendant to satisfy the motion judge that it
has a valid defence. 58 If the Plaintiff fails to discharge its onus, the motion shall succeed, and the
SLAPP suit shall accordingly be dismissed. To satisfy the no valid defence burden, the Plaintiff must
show that the evidentiary conclusions a reasonable trier could draw from the Defendant’s motion
record would not satisfy the required elements of the defences put forward by the Defendant.

50. In the Statement of Defence, the Defendant pleads the defences of: (a) justification;
and (b) fair comment. It is submitted that a reasonable trier would find that the above defences are
not only valid, but would succeed, and the Plaintiff’s claim should therefore be dismissed.

(ii) Defendant has a Valid Justification Defence

51. The Defendant submits that calling someone alt-right is either not defamatory per se,
or - if “alt-right” as a descriptor can be construed as defamatory (which is not admitted) - that it is a
matter of opinion for which a fair comment defence is available. But the Defendant has not simply
opined based on conjecture as to where the Plaintiff sits on the political spectrum. He has in fact
systematically considered his views and made an intelligent and reasoned conclusion supported by
facts.

52. The record of evidence provided by the Defendant establishes the hallmarks of the
alt-right discourse providing a clear factual basis for concluding that the Plaintiff is alt-right. 59 In this
regard, it is not necessary for the Court to make a definitive finding as to all the tenets of what defines
the alt-right, but the Court is permitted to determine, on a balance of probabilities, whether a public
and generalized discussion exists regarding a conceptual term identified as the “alt-right” , which
represents a complex and sometimes divergent grouping within conservatism. 60

57
New Dermamed Inc v Sulaiman, 2019 ONCA 141 (CanLII) at para 12 [BOA, Tab 8]; Lascaris v B’nai
Birth Canada, 2019 ONCA 163 (CanLII) at para 33 [BOA, Tab 8]; and Bondfield Construction Company
Limited v The Globe and Mail Inc, 2019 ONCA 166 (CanLII) at para 15 [BOA, Tab 10].
58
Pointes, supra note 4 at para 119 [BOA, Tab 1].
59
See para. 59 below with respect to “truth” in relation to fair comment defence.
60
Bueckert Affidavit at para. 27 and Exhibit “L” [DMR page 249-250]; Exhibit “M” [DMR page 269];
Exhibit “K” [DMR page 236]; Exhibit “I” [DMR page 226].

17
 53. It is a fact that the Plaintiff is a conservative 61 and, it is submitted, on a balance of
probabilities, based on the fact of the existence of the alt-right discourse and its general contours, that
the Plaintiff’s tweets and public comments conform to these general contours or profile. Accordingly,
as a matter of verifiable fact, the Plaintiff is alt-right.

54. However, if the Court finds that the contours of the alt-right as a movement, based
on the evidence on the record, are too amorphous, ill defined or difficult to meaningfully define, it is
submitted that the evidence on the record proffered by the Defendant supports a reasonable and
defensible understanding of the alt-right of the Defendant (even if it is not the singular or correct
definition), which must lead to the inevitable conclusion that the Defendant’s impugned statements
constitute fair comment.

(iii) Defendant has a valid Fair Comment Defence

The Test for Fair Comment Defence

55. The elements of the Fair Comment defence to a defamation action have been outlined
by the Supreme Court in WIC Radio Ltd v Simpson:

(a) The comment must be on a matter of public interest;

(b) The comment must be based on fact;

(c) The comment, though it can include inferences of fact, must be

recognisable as comment;

(d) The comment must satisfy the following objective test: could any man
honestly express that opinion on the proved facts?

(e) Even though the comment satisfies the objective test the defence can be
defeated if the plaintiff proves that the defendant was actuated by express
malice. 62

56. In WIC Radio, the Supreme Court accepted that the term “comment” “…includes a
“deduction, inference, conclusion, criticism, judgment, remark or observation which is generally

61
Di Franco Affidavit, para 11 [PMR at page 3].
62
WIC Radio v Simpson, 2008 SCC 40 at para 1, [2008] 2 SCR 420 [“WIC Radio”] [BOA, Tab 11].

18
incapable of proof.” 63 In addition, the Supreme Court identified that some statements, which may
appear to be facts, are appropriately deemed comment, especially in the context of political debate. 64

57. Finally, the threshold question of whether the statement is a comment is to be

interpreted generously and is “relatively easy to discharge". 65 Even were the appellation of “alt-
right” to be considered an epithet aimed at denouncing someone as racist, as the Court of Appeal held
in Awan v. Levant, calling someone prejudiced is a matter of opinion for which the court affords a
broad latitude under the defence of fair comment, subject to the comment being based on a reasonably
held belief and uttered in good faith. 66

(a) Defendant’s comments are on a matter of public interest

58. The Defendant has already addressed the public interest nature of his comments in
part one of the test under section 137.1 of the CJA. It is submitted that his impugned comments
clearly satisfy the test in respect of the first hurdle under the Act, which has a similar purpose and
effectively the same threshold as the fair comment defence. The Defendant relies on his submissions
in reference to same as stated above.

(b) Defendant’s comments are based on fact.

59. The Defendant contends in his allegedly defamatory publications that the Plaintiff’s
politics qualify as alt-right, and that this is problematic due to his influence over several of the Ford
Government’s policies on post-secondary education. 67 The Defendant’s opinion regarding the
Plaintiff’s politics is supported by the following factual considerations, each of which is supported
by evidence:

(a) A broad ranging discourse or academic and public discussion exists regarding the
term “alt-right”, which is informed by inter alia the academic writing of authors like

63
WIC Radio, supra note 62 at para 26 [BOA, Tab 11].
64
Ibid at para 26.
65
Ibid at para 30.
66
Awan v. Levant, 2016 ONCA 970 at para 84 [BOA, Tab 12].
67
Bueckert Affidavit, para. 23 [DMR, Tab 5].

19
 Dr. George Hawley 68 and J.M. Berger, 69 activist organizations like the Southern
Poverty Law Centre (SPLC) 70 and the Anti-Defamation League (ADL) 71 and alt-right
commentators like Milo Yiannopoulos. 72 It is a fact that these authors have written
about the “Alt-Right” as a political movement and the Defendant accepts the views
of these (and other) authors for the following propositions:

(i) that the term “alt-right” was coined by a White Nationalist named Richard
Spencer, in order to “…build a broader coalition of conservative forces
distinct from the mainstream conservative movement” as a shift away from
the more crude language of White Nationalism; 73

(ii) Alt-right adherents often rally in support of white identity or ‘Western

Civilization’, or against “globalism” and “Cultural Marxism” but often take
on more immediately accessible campaigns against immigration and refugees,
against Black Lives Matter and “Social Justice Warriors” (SJWs), and against
minority representation in popular culture; 74

(iii) Those within the alt-right have competing or divergent views on the right wing
of the political spectrum; 75

(iv) The Plaintiff has located and referenced as part of his record four (4)
definitions of the alt-right, which fall within the broad public discussion of
what the alt-right may possibly encompass. 76 While the concept of White
Nationalism forms part of the Plaintiff’s selected definitions, the movement’s
relationship to White Nationalism is complex and there is no single or “true”

68
Bueckert Affidavit, at para 24 and Exhibit “I” [DMR page 72].
69
Ibid at para 27 and Exhibit “K” [DMR page 73].
70
Ibid at para 26 and Exhibit “J” [DMR page 72].
71
Ibid at paras 29-30 and Exhibit “N” [DMR page 74].
72
Ibid at para 28 and Exhibit “M” [DMR page 73].
73
Ibid at para 24 and Exhibit “I” [DMR pages 156-157].
74
Ibid at para 26 and Exhibit “J”.
75
Ibid at para 27 and Exhibit “L” [DMR page 249-250]; Exhibit “M” [DMR page 269]; Exhibit “K” [DMR
page 236]; Exhibit “I” [DMR page 226].
76
Di Franco Affidavit Exhibits “44” to “47” [PMR, Tabs 44-47].

20
 definition of alt-right that the Plaintiff has established in evidence; 77

(v) The alt-right encompasses and relates symbiotically to a movement known as

the “alt-light”, which serves to downplay the extremist elements of the alt-
right; 78

(vi) Many high-profile members of the alt-right, such as Jared Taylor, fail to self-
identify as being alt-right; 79

(b) The Plaintiff has not disproven the existence of an ongoing discourse relating to the
definition of the alt-right and has not established that those authors as cited by the
Defendant in the record of this proceeding did not contribute to this discourse. In this
sense, the Defendant relies on the fact that the above-named authors, groups and
individuals have commented on the subject of the alt-right, but does not conclude that
the alt-right has a singular or narrow definition, particularly given the Defendant’s
information, for which he cites the source of his belief, that the alt-right has
divergence within itself as an ideology or movement; 80

(c) There is evidence that the following individuals are politically alt-right: (i) Gavin
McInnes; 81 (ii) Alex Jones; 82 (iii) Milo Yiannopoulos; 83 (iv) Lauren Southern; 84 (v)
Janice Fiamengo; 85(vi) Jack Posobiec; 86 (vii) Paul Joseph Watson; 87 (viii) Maxime
Bernier; 88

(d) The Plaintiff has endorsed, supported and made favorable tweets about those

77
Plaintiff omits reference to definitions of alt-right that do not contain “white nationalism”; see: Bueckert
Affidavit, Exhibit “B” [DMR].
78
Bueckert Affidavit at para 30 and Exhibit “O” [DMR, page 288]; Exhibit “I” [DMR, pages 210-228].
79
Ibid at para 31 and Exhibit “Y” [DMR, page 343].
80
Supra note 75.
81
Ibid at paras 34-38, 40 and Exhibits “P”, “Q” and “R”.
82
Ibid at para 44 and Exhibit “W” [DMR, pages 337-339].
83
Ibid at paras 46-48 and Exhibits “Y” and “Z” [DMR, page 356 and 358-60].
84
Ibid at paras 50-52 [DMR, pages 85-87].
85
Ibid at paras 54-56 [DMR, pages 88-89].
86
Ibid at paras 58-59 [DMR, pages 90-91].
87
Ibid at paras 61-62 [DMR, pages 92-93].
88
Ibid at paras 65-69 [DMR, pages 94-98].

21
 individuals identified above in (“c”); 89

(e) The Plaintiff has chosen to defend or downplay the offensive character of those
identified above in (“c”) even during the present litigation when confronted with
clearly racist and offensive comments of these speakers by the Defendant. 90

(f) The Plaintiff has failed to take steps to educate himself about the political views,
background, or to provide any evidence or research into the past comments, of any of
the above named persons in (“c”) despite having reviewed the Defendant’s affidavit,
which clearly provides evidence linking these same persons to racist, misogynist and
other offensive statements; 91

(g) Instead of explaining his social media profile and history of tweets, the Plaintiff has
repeatedly objected to answer questions on his views of the political opinions of the
above-named persons identified above in (“c”); 92

(h) The Plaintiff’s tweets on social media are consistent with alt-right ideology as defined
by: (i) The Southern Poverty Law Centre; 93 (ii) The New York Times; 94 (iii) Paul
Hanebrink; 95 (iv) The Huffington Post; 96 (v) Roots Online 97 and others.

(c) Defendant’s statements are recognisable as comment;

60. The Defendant’s statements that the Plaintiff is politically alt-right is inferred from a

89
Bueckert Affidavit at para. 45 and Exhibit “X’ [re: Jones]; at para. 49 and Exhibits “U” and “AA” [re:
Yiannopoulos]; at para. 53 and Exhibit “BB” [re: Southern]; at para 57 [re: Fiamengo]; at para 60 and
Exhibit “DD” [re: Posobiec]; at para 63 and Exhibit “EE” [re: Watson]; at para. 64 and Exhibit “FF”, “GG”,
“HH” [re: Bernier].
90
[Re: McInnes] Di Franco Affidavit at para. 59 (g) [PMR page 13]; para. 129 [PMR page 31]; para. 131
[DMR page 32]; [Re: Fiamengo] at para. 133 (c) [PMR page 32]; [Re: Jones] para. 137 [PMR page 35]; [Re:
Bernier] at paras. 168, 169 and 172 [PMR pages 42-43].
91
Transcript of Cross-Examination of M. Di Franco [JSR, Tab 2], pages 41 [re: McInnes]; 60-63 [re: Jones];
70 [re: Yiannopoulos]; 73 [re: Southern]; 78 [re: talcum powder comment]; 81 [re: Muslim travel ban].
92
Transcript of Cross-Examination of M. Di Franco, pages 44, 46, 55, 56, 63, 64, 68, 73 [JSR, Tab 2].
93
Bueckert Affidavit at para. 26 and Exhibit “J” [DMR page 72].
94
Ibid at para. 72 [DMR page 99].
95
Ibid at para. 73, and Exhibit “NN” [DMR pages 405-414].
96
Ibid at para. 77 [DMR page 101].
97
Ibid at para. 102-103 [DMR pages 102-103].

22
series of facts that are stated above [see: (“b”)]. Ultimately, the Defendant’s inferences may be true,
but the truth of his inferences regarding the Plaintiff’s ideology is predicated on a definition of the
concept of the “alt-right”, which is itself subject to debate.

61. While it is true that the Plaintiff’s commentary appears to conform to the ideology of
the alt-right (as identified by the Defendant) and that he has endorsed people who are or who are
described as alt-right, the conclusion that the Plaintiff’s politics are alt-right centres upon a series of
interconnected inferences based on common themes of these commentators, an analysis of the alt-
right discourse and the Defendant’s sourced and justified opinion on what constitutes the alt-right. In
this regard, the systematic and carefully constructed opinion of the Defendant regarding the Plaintiff’s
politics may possibly be true, but can certainly be identified as comment.

62. The Defendant is entitled to formulate and express his own view of the Plaintiff’s
politics; however, given the multifaceted nature of what the alt-right encompasses, his conclusion on
the nature of the Plaintiff’s politics can only be as compelling as the cogency of the Defendant’s
attempt to link the Plaintiff’s social media profile with the Defendant’s characterization of the alt-
right.

63. Ultimately, the record which does not contain an expert opinion that provides an
authoritative and encompassing definition of what constitutes alt-right politics, reveals that the term
itself is malleable and subject to interpretation. It is uncertain whether a singular authoritative
definition of the alt-right is even possible given the sometimes divisive nature of the alt-right itself.
The literature sourced by the Defendant shows a link between alt-right politics and ideology on the
right wing of the political spectrum. The analysis of finding the nuanced and exact position of
someone on the conservative side of the political spectrum and whether it conforms to alt-right
politics involves making an opinion. This type of opinion is discernible as comment. Moreover, given
the measured and information-based method by which the Defendant arrived at this comment, it
clearly must constitute fair comment.

(d) Anyone could honestly express the Defendant’s opinion on the proved facts;

64. The rigor of the Defendant’s conclusion and analysis regarding the Plaintiff’s politics
as being alt-right is supported by literature, based on logic and entails a considered and systematic

23
analysis of a significant array of social media messages by the Plaintiff, a consideration of those the
Plaintiff writes about as being alt-right and a general consistency between the Plaintiff’s comments
and the Defendant’s understanding of the alt-right.

65. The Plaintiff contends that he is not alt-right and that his endorsement or
commentary in support of any and all persons who coincidentally have espoused alt-right, White
supremacist or racist views is because the Plaintiff simply endorses the right of these commentators
to speak their mind – because the Plaintiff supports free speech.

66. However, the Plaintiff does not support all speech. There is no evidence that he
supports leftists or leftist speech or the right of someone like the Defendant to criticize his own speech
as being alt-right. The evidence on the record shows that the Defendant is a campus conservative
who supports Doug Ford and Donald Trump, and has actively promoted and created social messages
on themes of anti-immigration, criticism of leftists and endorsement of alt-right commentators.

67. In view of the above, it is entirely reasonable for a person to honestly express the
opinion that the Plaintiff is alt-right and that he supports free speech for conservative and alt-right
commentators.

(e) No evidence that Defendant’s comments were actuated by express malice.

68. Although the Plaintiff pleads that many of the Defendant’s comments were actuated
by malice, there is no evidence in support of this bald assertion. The Defendant has been completely
transparent as to why he has concluded that the Plaintiff is alt-right in his politics from the
commencement of notice of libel and throughout the litigation. The Defendant opposes the Plaintiff’s
political views and has genuinely articulated his concerns in social media comments, in an interview,
and in an online article.

69. Based on the foregoing, the Defendant meets all the criteria of the test for a fair
comment defence.

Issue 3: The harm likely to or have been suffered by the Plaintiff is outweighed by the public
interest in promoting free expression on matters of public interest.

24
A. Balancing test pursuant to section 137.1(4)(b)

70. Section 137.1(4)(b) requires the Court to balance two competing public interests: (1)
the public interest in allowing the claim to proceed because of the harm caused to a plaintiff; versus
(2) the public interest in promoting free expression on matters of public concern. Accordingly, the
public interest in allowing the claim to proceed will be modest where only insignificant harm was
suffered by a plaintiff. On the other side of the balance, the public interest in promoting free
expression will be great where the impugned expressions were measured, reasoned, and made in good
faith. Thus, where a measured, good faith expression causes little to no reputational damage, then the
balancing of public interests calls for dismissal of the action.

71. The public interest in allowing a claim to proceed is gauged primarily by a “ballpark”
assessment of the damages likely to be awarded if a plaintiff succeeds at trial. 98 The onus is on the
plaintiff to “…provide a basis upon which the motion judge can make some assessment of the harm
done or likely to be done to it by the impugned expression … a common sense reading of the claim,
supported by sufficient evidence to draw a causal connection between the challenged expression and
damages that are more than nominal will often suffice.” 99

72. Though damages are assumed in defamation cases, those damages may be
nominal. 100 Thus the Plaintiff still has the onus of demonstrating harm to reputation with evidence. It
cannot rely on bald assertions in the pleadings or affidavits. 101 But a fully-developed damages
analysis is not required. The evidence must allow a determination of whether the damages are nominal
or greater than nominal. Claims likely to result in nominal damages will be more easily outweighed
by the public interest in free political expression.

73. On the other side of the balance, when gauging the public’s interest in protecting the
impugned expression, the Court must look to both the quality of the expression and the motivation of
its author. 102 A quality expression made for the purpose of contributing to a public debate attracts a

98
Pointes, supra note 4 at para 91 [BOA, Tab 1].
99
Ibid at para. 88.
100
Fortress Real Developments v. Rabidoux, 2018 ONCA 686 at para 45 [BOA, Tab 13].
101
Pointes, supra note 4 at para 91 [BOA, Tab 1].
102
Ibid at para 94.

25
greater level of protection because the public has a greater interest in promoting genuine and
thoughtful engagement in public discourse. Conversely, gratuitous invective and ad hominem attacks
will attract less protection. 103

74. The public interest in protecting the Defendant’s expressions grossly outweighs the
harm to the Plaintiff, if any has been suffered at all. Harm to the Plaintiff has been nominal and self-
inflicted. No evidence of actual reputational harm resulting from the Publications has been adduced
by the Plaintiff.

B. The harm to the Plaintiff by the Defendant’s expression is nominal

75. The thrust of the Plaintiff’s claim of reputational harm is premised on an allegation
that his name is now associated with the alt-right on google. The allegation is a pure fiction; when
the Plaintiff’s name is googled, the results do not link to the Publications. Rather, they link to articles
about the Plaintiff’s action. 104 That is the Plaintiff’s own doing – the product of the risk he took when
commencing an action in defamation in the name of free speech. No reliable evidence was adduced
by the Plaintiff to demonstrate harm. If there is any harm, it is no more than nominal, and it is grossly
outweighed by the public interest in promoting free expression on matters of public concern.

76. The Plaintiff’s evidence of harm is exceedingly weak. He relies on the following
three factual allegations as evidencing harm:

a) An acquaintance of the Plaintiff, Keith de Silvia-Legault, saw a Facebook meme

created by the Defendant and brought it to his attention during a model parliament
they both attended at the University of Ottawa between January 21st and 22nd, 2019.105

b) The Plaintiff was called “Snow Flake” by a Facebook user named Doug Yearwood,
“Fucking asswipe” by a Facebook user named Tom Gerylo, “fucking snowflake” by a
twitter user named “Gary Oldboy”, a “pathetic snowflake” by a twitter user named
“sixf0ur”, and a “major pussy and coward” by twitter user named “..” 106

c) The Plaintiff alleges that his name is associated with the alt-right on google. He claims
that google’s auto-complete function suggests “alt-right” when his name is typed into

103
Levant v. Day, 2019 ONCA 244 (CanLII) at paras 22- 23 [BOA, Tab 14].
104
Reply Affidavit of Michael Bueckert [“Bueckert Reply Affidavit”], para. 19 and Exhibit “H”,
Supplementary Motion Record of the Defendant [“SMR”].
105
Di Franco Affidavit at paras 110-111 [PMR, page 28].
106
Ibid at para. 105 [PMR, page 27].

26
 the google search bar. As a consequence, he claims that future potential employers
may google his name and believe that he is associated with the alt-right, causing him
to lose employment opportunities. 107

77. Allegations a) and b) do not show significant harm. Allegation c) is a fabrication: The
Plaintiff’s name is not associated with the alt-right on google. No other evidence of any reputational
damage or loss was proffered.

78. The meme in which the Plaintiff was recognized by de Silva-Legault is located at tab
41 of the Plaintiff’s affidavit. The meme does not contain the words “alt right” or any of the other
words or comments impugned by the Plaintiff as defamatory. The meme merely suggests that the
Plaintiff was consulted by the Ford government, and a number of other student organizations were
not consulted. The meme is not defamatory even by the Plaintiff’s standard.

79. The insults directed at the Plaintiff in allegation b) are in poor taste, but they were not
incited by the Defendant. These individuals insulted the Plaintiff for having commenced this
action. 108 They were all made after the action was commenced and had been made public. Gary
Oldboy’s full comment states “so big on free speech that you’re suing a guy for saying something
you didn’t like [sic] lmaoooo fucking snowflake.” Sixf0ur’s comment states “Florida man is pathetic
snowflake who pretends to be pro-free speech, but actually sues his critics.” And “..”’s comment
states “you are a major pussy and coward for suing someone based on words.” In other words, it is
the Plaintiff’s action and not the Defendant’s expressions that caused the harm described in b). The
Defendant elected to expose himself to the risk of ridicule for commencing an action in defamation
in the name of free expression. He alone is responsible for that.

80. Lastly, the Plaintiff’s allegation of internet notoriety in c) is a fabrication. When

“michele di franco” and “michele di franco Ottawa” are typed into the google search bar, “alt-right”
is not suggested by google’s auto-complete. 109 Auto-complete suggestions are influenced by several
factors, including a user’s own past searches, as explained in the Google Help Center’s section on
auto-complete. 110 Whether it is this factor or another factor that caused “alt-right” to be auto-

107
Di Franco Affidavit at para. 198 [PMR page 51]
108
Ibid, Exhibit 39 [RPMR, TAB 39].
109
Bueckert Reply Affidavit, para. 18 and Exhibit “D” [SMR].
110
Ibid, Exhibit “D” [SMR].

27
suggested when the Plaintiff googled his own name is not explained in his affidavit.

81. In contrast, when “michele di franco” was googled from the Defendant’s computer,
and from a public computer at Carleton University, “alt-right” was not auto-suggested. 111,112 The
actual search results from googling “michele di franco” were not tendered into evidence by the
Plaintiff. And for good reason: the impugned Publications do not come up in google searches of the
Plaintiff’s name. 113 The search results for “michele di franco”, “michele di franco Ottawa,” and
“michele di franco uottawa” do not include the publications impugned in the statement of claim. The
results do not include the medium.com blog post; they do not include the Rob Rousseau podcast
interview on ricochet.media; nor do they include the Defendant’s tweets or Facebook posts. 114 The
only results that refer to the impugned publications are media articles about the Plaintiff’s action. 115
It is thus the Plaintiff’s action and not the Defendant’s expressions that caused the harm described in
c), to the extent that it exists at all. The Plaintiff is the author of his own online reputation. 116

82. The Plaintiff’s evidence of harm amounts to “bald assertions” in the pleadings and
“unsourced, unexplained damage” from his supporting affidavit. This does not meet the necessary
evidentiary threshold to sustain his action. 117 If the Plaintiff’s reputation has suffered, he has not
proven it. The evidence demonstrates that his reputation has been harmed by commencing this action.
The Defendant is not responsible for that. The modicum of harm evidence adduced by the Plaintiff is
not causally connected to the Defendant’s expressions.

83. Even if the Defendant’s expressions had harmed the Plaintiff, an eventual award of
non-pecuniary damages would be restrained. Canadian courts have long recognized that political
discourse is inherently acrimonious. As a consequence, judges should exercise restraint when
assessing damages for defamatory statements made in a political context. 118

111
Bueckert Reply Affidavit, at paras 19-20 [SMR].
112
Ibid, Exhibits “E”, “F” & “G”, [SMR].
113
Ibid, Exhibits “H” & “I”, [SMR].
114
Ibid, Exhibits “H” & “I”, [SMR].
115
Ibid, Exhibits “H” & “I”, [SMR].
116
Ibid, at paras 19-20 [SMR].
117
Pointes, supra note 4 at para 91 [BOA Schedule A, Tab 1].
118
Derrickson v Tomat, 1992 CanLII 8669 (BCCA) at paras 15-18 [BOA, Tab 15].

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 84. The judicial restraint in non-pecuniary damages awards recognizes that those who
enter the political arena must be prepared to be criticized, and sometimes harshly. It also recognizes
that given the highly partisan and acrimonious nature of political debate, defamatory expressions
made in that context are to a “considerable extent deprived” of their sting.

85. When the Plaintiff consulted the Doug Ford government, he entered the political arena
and exposed himself to public scrutiny of his views. The Defendant fairly exposed those views and
expressed his opinion on them. In this context, to the extent that the Defendant’s expressions were
defamatory at all, they were largely deprived of their sting. They did not injure the Plaintiff’s
reputation. This Court’s “ballpark” assessment of damages for the purposes of section 137.1(4)(b)
should reflect that.

86. On the other side of the public interest balancing under section 137.1, the public
interest in protecting the Defendant’s expressions is great. Particularly in the context of the internet
fora in which they were published (twitter and medium.com), the publications are restrained and
reasoned. They are not hyperbolic, vituperative, or caustic. And they were made in a good faith to
influence the public discourse on issues that are both personally relevant to the Defendant and more
generally important to the public as a whole.

87. The significant public interest in protecting the Defendant’s expressions is not negated
by the Defendant’s single and isolated use of the obscenity “asshole”. In contradistinction to the
impugned speech in Levant v. Day, supra, which was “imbued with hyperbole and vulgar vitriol,”
and was “admittedly false in many respects”, the Defendant’s expressions, with the exception of a
single tweet containing this single mild obscenity, lack any vituperation whatsoever. As observed by
the Court of Appeal in Levant, “resort to some vulgar language will [not] necessarily deprive
expression of value worth protecting.” In the context of political debate, the Defendant’s expressions
are restrained and reasoned and should be afforded a high degree of protection.

88. Dismissal of this action under section 137.1(4)(b) is supported by the applicable
authorities. In Armstrong, supra, at issue on the section 137.1 motion were defamatory statements
disseminated on Twitter, Facebook, the radio, a podcast, and a website. On the merits branch of the
section 137.1 analysis, the claim was found to have substantial merit against two of the defendants.

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Neither defendant had a valid defence. Both were found to have maligned the plaintiff’s character by
falsely suggesting that he was a person who used force, threats, illegal acts, bullying and intimidation
to get what he wanted from others. 119 These comments were disseminated over the radio and the
internet. The comments of one of those two defendants were found to have had a “wide audience,”120
and may well have been attributed “significant weight” by their audience given her status in the
community.

89. Similarly to the instant case, the plaintiff in Armstrong failed to adduce evidence of
any special damage. 121 Recognizing that political rhetoric can become “personal and overly zealous”,
the Court of Appeal determined that the harm caused to the plaintiff was outweighed by the strong
public interest in promoting freedom of expression in a political context, in that case an electoral
process. In the result, the action was dismissed on the motion.

90. The sum total of the Plaintiff’s evidence of harm is exceedingly weak. On balance, it
is grossly outweighed by the public’s interest in promoting free expression on political issues.

Conclusion

91. The Defendant submits that he has met the threshold for public interest expression, the
Plaintiff has failed to satisfy his onus in respect of the Merits Based Hurdle and the harm to the
Plaintiff is outweighed by the public interest in the Defendant’s expression – all of which satisfy the
requirements of section 137.1 of the CJA. For these reasons, the Defendant’s motion must be granted.

ALL OF WHICH IS SUBMITTED THIS 12th day of November 2019

_____________________________ ________________________________
Avant Law 403 – 331 Cooper St HAMEED LAW – 43 Florence Street
Ottawa, ON K2P 0G5 Ottawa, ON K2P 0W6
Tel: 613 702 7979 Tel: (613) 627-2974
Fax: 613 702 7970 Fax: (613) 232-2680
Per: Daniel Tucker-Simmons Per: Yavar Hameed
Counsel for the Defendant Counsel for the Defendant

119
Armstrong, supra note 47 at para 75 [BOA, Tab 4].
120
Ibid at para 81.
121
Ibid at para 89.

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 Schedule “A”: List of Authorities
TAB JURISPRUDENCE

1 1704604 Ontario Ltd v Pointes Protection Association, 2018 ONCA 685 (CanLII),
142 OR (3d) 161.

2 Grant v Torstar Corp, 2009 SCC 61, [2009] 3 SCR 640.

3 Platnick v Bent, 2018 ONCA 687, [2018] OJ No 4445.

4 Armstrong v Corus Entertainment Inc, 2018 ONCA 689, [2018] OJ No 4441.

5 Major v McGregor, [1902] OJ No 16, 5 OLR 81 (Ont HCJ), aff’d [1903] OJ No

186, 6 OLR 528 (Ont CA).

6 French v Smith, [1922] OJ No 6 at para 7, [1923] 3 DLR 902 (Ont HC).

7 R v Lucas, [1998] SCJ No 28 at para 78, [1998] 1 SCR 439 (SCC).

8 New Dermamed Inc v Sulaiman, 2019 ONCA 141 (CanLII).

9 Lascaris v B’nai Birth Canada, 2019 ONCA 163 (CanLII).

10 Bondfield Construction Company Limited v The Globe and Mail Inc, 2019 ONCA
166 (CanLII).

11 WIC Radio v Simpson, 2008 SCC 40, [2008] 2 SCR 420.

12 Awan v. Levant, 2016 ONCA 970, 133 OR (3d) 401.

13 Fortress Real Developments v. Rabidoux, 2018 ONCA 686, 426 DLR (4th) 1.

14 Levant v. Day, 2019 ONCA 244 (CanLII).

15 Derrickson v. Tomat, 1992 CanLII 8669 (BC CA), 88 DLR (4th) 401.

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 Schedule “B”: Text of Relevant Statutes, Regulations, By-laws, etc.

TAB LEGISLATION

16 Courts of Justice Act, RSO 1990, c C 43, s 137.1.

Prevention of Proceedings that Limit Freedom of Expression on Matters of Public

Interest (Gag Proceedings)

Dismissal of proceeding that limits debate

Purposes

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on

matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public
interest will be hampered by fear of legal action. 2015, c. 23, s. 3.
Definition, “expression”

(2) In this section,

“expression” means any communication, regardless of whether it is made verbally

or non-verbally, whether it is made publicly or privately, and whether or not it is
directed at a person or entity. 2015, c. 23, s. 3.
Order to dismiss

(3) On motion by a person against whom a proceeding is brought, a judge shall,

subject to subsection (4), dismiss the proceeding against the person if the person
satisfies the judge that the proceeding arises from an expression made by the person
that relates to a matter of public interest. 2015, c. 23, s. 3.
No dismissal

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding
party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

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(ii) the moving party has no valid defence in the proceeding; and

(b) 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. 2015, c. 23, s. 3.
No further steps in proceeding

(5) Once a motion under this section is made, no further steps may be taken in the
proceeding by any party until the motion, including any appeal of the motion, has
been finally disposed of. 2015, c. 23, s. 3.
No amendment to pleadings

(6) Unless a judge orders otherwise, the responding party shall not be permitted to
amend his or her pleadings in the proceeding,

(a) in order to prevent or avoid an order under this section dismissing the
proceeding; or

(b) if the proceeding is dismissed under this section, in order to continue the
proceeding. 2015, c. 23, s. 3.
Costs on dismissal

(7) If a judge dismisses a proceeding under this section, the moving party is entitled
to costs on the motion and in the proceeding on a full indemnity basis, unless the
judge determines that such an award is not appropriate in the circumstances. 2015, c.
23, s. 3.
Costs if motion to dismiss denied

(8) If a judge does not dismiss a proceeding under this section, the responding party
is not entitled to costs on the motion, unless the judge determines that such an award
is appropriate in the circumstances. 2015, c. 23, s. 3.
Damages

(9) If, in dismissing a proceeding under this section, the judge finds that the
responding party brought the proceeding in bad faith or for an improper purpose, the
judge may award the moving party such damages as the judge considers appropriate.
2015, c. 23, s. 3.

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17 Protection of Public Participation Act, SO 2015, c 23 section 3.

An Act to amend the Courts of Justice Act, the Libel and Slander Act and the
Statutory Powers Procedure Act in order to protect expression on matters of public
interest

3. The Act is amended by adding the following sections:

Prevention of Proceedings that Limit Freedom of Expression on Matters of Public
Interest (Gag Proceedings)
Dismissal of proceeding that limits debate
Purposes

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on

matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public
interest will be hampered by fear of legal action.

34