7.3: Summary Judgment (Application and decision)

Case Summary

The Defendants filed an Application for Summary Dismissal pursuant to Rule 7.3, arguing that the alleged defamatory statements were not “of and concerning” the Plaintiffs.

The claim arose from statements made by former Premier Jason Kenney and statements published on Government of Alberta websites regarding the findings of a public inquiry, conducted by Commissioner Steve Allan, to investigate allegations that environmental campaigns against Alberta’s oil and gas sector were being funded by foreign interest groups. The Commissioner’s final report confirmed the existence of well-funded, decade-long campaigns based on misinformation that had impacted the lives and livelihoods of Albertans.

The Plaintiffs claimed that four statements were defamatory: a Facebook post and an identical tweet posted to Jason Kenney’s respective accounts (the “Social Media Post”); statements on the “Inquiry Webpage” and statements in the “Key Findings Document”. The Social Media Post did not name the Plaintiffs but contained a link that directed the viewer to an Alberta Government web page titled “Foreign funding hurt Alberta’s energy development”, which included the Inquiry Webpage that linked directly to the Key Findings Document that incorporated a list of 36 names, including the names of the Plaintiffs.

The Court first cited the key considerations set out in Weir-Jones Technical Services Inc. v Purolator Courier Ltd., 2019 ABCA 49, confirming that to succeed in the Application, the Defendants must show that there were no uncertainties in the facts, the record, or the law, and that Summary Dismissal would be appropriate when the Plaintiffs’ claim had no merit based on the facts proven on a balance of probabilities. 

The Court then dealt with the question of what constituted a defamatory statement and found that the only issue before the Court was whether the alleged defamatory statements referred to the Plaintiffs. The Court further noted that defamatory statements did not need to refer to a Plaintiff explicitly or directly. Whether the statements were “of and concerning” the Plaintiffs would depend on whether a reasonable person, informed of the general context of the statements and the surrounding circumstances of the Plaintiffs and Defendants, would understand that it was the Plaintiff to whom the Defendant referred.

The Defendants argued that the statements did not refer to the Plaintiffs because: (1) the footnote in the impugned sentence of the Key Findings Document referred to the Tar Sands Campaign, not the Plaintiffs; (2) the Plaintiffs were not singled out from the larger group of 36 organizations named in the Key Findings Document; (3) the social media posts and Inquiry Webpage did not identify the Plaintiffs explicitly; (4) because reaching the Key Findings Document from the Social Media posts required following two links, the posts were not sufficiently connected to the list of 36 names in the Key Findings Document; and (5) a reasonable person aware of the surrounding circumstances would not know the statements referred to the Plaintiffs.

On the other hand, the Plaintiffs argued that: (1) the Key Findings Document named each of them individually; (2) the statements that did not include the names of the Plaintiffs contained links to the Key Findings Document where their names were easily found; and (3) a reasonable person aware of the surrounding circumstances would know that at least some of them were the targets of the public inquiry.

The Court found that the Key Findings Document, when considered as a whole, clearly linked the alleged defamatory statements to the campaigns involving the listed Plaintiffs. Furthermore, the Court determined that social media links allowed a reasonable person to understand to whom the impugned statements referred. When social media posts contained links to another document, allowing a party to separate the defamatory statement from the identity of the defamed and offer a defence of no sufficient connection would defeat defamation law.

In the result, the Application for Summary Dismissal was denied as the Defendants had not established that the impugned statements did not refer to the Plaintiffs.

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