The Ontario Court of Appeal (OCA) in Baglow v Smith, 2012 ONCA 407, reversed the decision of the motion judge, Justice Annis, in 2011 ONSC 5131, granting summary judgment to a blogger accused of making defamatory statements on the Free Dominion chat site.

As reported in E-TIPS® (see “Ontario Court Summarily Dismisses Action for Alleged Chat Site Defamation,” Vol 10, No 6, September 21, 2011), during a heated political exchange on the site, the defendant, Roger Smith, referred to the plaintiff as “one of the Taliban’s more vocal supporters”. The plaintiff stopped participating in the debate at that point and filed a defamation action against Mr. Smith and the operators of Free Dominion.

The OCA pointed out that the motion judge’s decision was handed down prior to the OCA’s establishment of the “full appreciation” test for summary judgment in Combined Air Mechanical Services Inc v Flesch, 2011 ONCA 764. This requires that the motion judge assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case. In this case, the OCA determined that a trial process is necessary. Despite having the full electronic dialogue on the record, the OCA felt that cross-examinations of the parties and possibly expert testimony would be required to provide a full factual record. Also, the fact that the issues involving defamation on a political blog are important and novel weighed heavily in favour of requiring a full trial. In addition, said the OCA, the motion judge made a clear error in asserting that the parties had chosen not to exercise “their rights of cross-examination” when, in fact, they had no such rights under the applicable Simplified Procedure.

Summary by: Tom Feather