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Court File No.

CV-19-00079414

ONTARIO

SUPERIOR COURT OF JUSTICE


B E T W E E N:
MICHELE DI FRANCO

Plaintiff

(Moving Party)

- and -

MICHAEL BUECKERT

Defendant

(Responding Party)

DEFENDANT’S RESPONDING FACTUM TO PLAINTIFF’S MOTION TO STRIKE


PARTS OF THE AFFIDAVIT OF MICHAEL BUECKERT

PART 1: OVERVIEW AND FACTS

A. Overview

1. The Defendant/ Responding party in the present motion, who is the moving party in the
context of the underlying motion filed before this Court pursuant to section 137.1 of the
Courts of Justice Act (“the Main Motion”) has received a motion from the Plaintiff that
seeks to attack and strike out various paragraphs, exhibits and footnotes in the supporting
affidavit of Michael Bueckert filed on the Main Motion.

2. The Plaintiff’s motion to strike is entirely without merit. Fundamentally, the Plaintiff
misconstrues the nature of evidence that is permissible in the context of an Anti-SLAPP
motion wherein the Defendant has pleaded the defence of fair comment. Rule 39.01(4)

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permits a deponent of an affidavit in a motion to include in his affidavit facts sworn on
information and belief, where the source of this information is referenced in the affidavit.
More specifically, for a party in an Anti-SLAPP motion seeking to assert a fair comment
defence, it is incumbent on him to provide his opinion and the source of his opinion. In this
sense, his opinion and any information relied upon by the Defendant in support of his opinion
is necessarily admissible.

3. It is a matter of argument as to whether any fact, footnote, exhibit or other source of


information asserted in an affidavit may be relied upon for the truth of its contents; and, to
this end, the Defendant must satisfy the law of evidence and the exceptions to the rule against
hearsay for the admissibility of that specific evidence. However, the Plaintiff’s omnibus
motion to strike out virtually every paragraph in the Defendant’s affidavit is entirely
misplaced as it ignores the fact that every single referenced piece of information related to
the Defendant’s opinion must be deemed admissible by this court in the context of the
Defendant’s fair comment defence.

4. Rather than filing a motion that coherently considers the material of the Defendant and seeks
to challenge evidence based on a fact specific application of legal principles, the Plaintiff has
reproduced the Defendant’s affidavit in its entirety without its exhibits and has annotated it
with boiler plate case notes. The resulting document is neither a factum nor a motion record
and does not conform to either the rules of evidence on a motion or the rules of pleading in
respect of the requirements of drafting a factum. Accordingly, it is the Defendant’s
submission that the Plaintiff’s motion to strike should be summarily dismissed based on its
non-conformity with the Rules.

5. The Plaintiff’s motion to strike raises two fundamental problems: a) it is inextricably


emmeshed in the merits of the Defendant’s anti-SLAPP motion; and b) it does not provide an
appropriate or efficient basis, as required by the Rules, for bifurcating admissibility as a
preliminary issue separate from the Main Motion. What is more, the case law maintains that
preliminary motions to strike affidavits prior to the hearing of the main motion should be
discouraged. In the circumstances, the Defendant submits that according to Rule 1.04(1), the
Plaintiff’s motion should be addressed in the context of the Main Motion as it cannot be

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properly assessed in the absence of a contextual understanding of the Defendant’s defence of
fair comment defence as part of the Merits-Based hurdle that must be addressed pursuant to
section 137.1 of the Courts of Justice Act.

B. Facts

(i) State of these Proceedings


6. The Defendant, Michael Bueckert, is the subject of a defamation action by the Plaintiff,
Michele Di Franco, for communications he made on Twitter, on a blog post, and in an
interview on a podcast (together, the “Publications”). On or about February 27th, 2019, the
Plaintiff issued his Statement of Claim claiming damages for defamation. The Statement of
Defence, within which the defence of Fair Comment was asserted, was subsequently served
and filed with the Court in compliance with the Rules.

7. On or about May 21, 2019, the Defendant filed its Notice of Motion seeking an order to
dismiss the Plaintiff’s proceedings pursuant to section 137.1 of the Courts of Justice Act as it
relates to a claim for defamation which arises from an expression by the Defendant in the
public interest.

8. In furtherance of the s. 137.1 motion, the Defendant prepared and served upon the Plaintiff
his affidavit. In describing the contents of his affidavit and the material therein he used to
base the reasonable conclusions he arrived at, the Defendant stated:
I have personal and direct knowledge of the facts described in this
Affidavit. Where the facts described are based on information and belief,
I have indicated the source of the information by inserting a footnote or
in-text citation where appropriate. I have personally accessed, read,
viewed and/or reviewed each source that I refer to in this affidavit. I
believe all of the sources I have used in this Affidavit to be true and
accurate. The most relevant sources for the purpose of this motion have
been appended to this Affidavit as exhibits. I have copies and/or can
produce copies of any other cited material that is referenced herein,
which I rely upon for the truth of the fact that certain statements were
made and that there is literature/ analysis regarding the nature of the “alt-
right” movement, its make-up, tendencies, profile and activities. I believe
in the accuracy and analysis of the authors cited herein relating to the

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history and definition of the alt-right and their views have informed my
analysis and comments that are the subject of the defamation action
brought against me by the Plaintiff, Michele Di Franco.1

(ii) Plaintiff’s Notice of Motion


9. On or about September 20, 2019, the Plaintiff served on the Defendant his Simplified
Procedure Motion Form, as well as the corresponding Motion Record of the Moving Party.
On this motion, the Plaintiff is moving to strike the entire affidavit of the Defendant, and
alternatively, a considerable number of paragraphs and all footnotes within the affidavit, on
the general grounds that the affidavit contains numerous scandalous, frivolous, vexatious and
abusive statements; and (b) that the statements set out in the affidavit are not admissible.2

10. The motion materials of the Plaintiff did not include a factum.

11. The Plaintiff is seeking to strike four categories of content within the affidavit of Michael
Bueckert: (a) the opinions of Michael Bueckert; (b) references to tweets and other social
media activity; (c) published articles entered as exhibits; and (d) all footnotes.

12. The Defendant respectfully submits that all content contained within the affidavit serve as
valuable elements of the record that will aid in this Court’s assessment of whether the
Defendant has properly asserted its fair comment defence.

PART 2: ISSUES ARISING ON THIS MOTION

13. The following issues arise on the instant motion:

Issue 1: Whether the Plaintiff’s motion to strike should be addressed as part of the Main
Motion;

1
Affidavit of Michael Bueckert, at para 2 [Defendant’s Motion Record in the Main Motion at Tab 5].
2
Simplified Procedure Motion Form of the Plaintiff, at paras 2 and 4 [Motion Record of Moving Party at Tab 1].

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Issue 2: Whether the affidavit of Michael Bueckert constitutes admissible evidence on a
motion; and

Issue 3: Do any of the evidentiary objections raised by the Plaintiff affect the admissibility of
the Bueckert Affidavit; and

Issue 4: Can any of the sources included and/or referenced in the Bueckert be relied upon for
the truth of their contents?

PART 3: LAW AND ARGUMENT

ISSUE 1: The Plaintiff’s motion to strike is inefficiently and improperly pleaded as a stand-
alone motion and should be dealt with on the merits of the Main Motion

14. Rule 37.10(2) sets out the requirements for a motion record:

Contents of Motion Record

(2) The motion record shall contain, in consecutively numbered pages arranged
in the following order,

(a) a table of contents describing each document, including each exhibit,


by its nature and date and, in the case of an exhibit, by exhibit number or
letter;

(b) a copy of the notice of motion;

(c) a copy of all affidavits and other material served by any party for use
on the motion;

(d) a list of all relevant transcripts of evidence in chronological order, but


not necessarily the transcripts themselves; and

(e) a copy of any other material in the court file that is necessary for the
hearing of the motion. R.R.O. 1990, Reg. 194, r. 37.10 (2).

15. In support of his motion to strike the Plaintiff has elected to file an annotated version of the
Defendant’s affidavit. The annotated affidavit is neither evidence nor is it argument. More
specifically, it does not conform to any of the requirements of Rule 37.10(2) for materials to
be used in a motion record.

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16. The resulting hybrid of reproduced affidavit without exhibits and boiler plate case notes does
not provide a fact specific application of the law, nor does it present in a discernible and
cogent fashion the specific arguments that apply to various paragraphs in the Defendant’s
affidavit.

17. Apart from the fact that the Plaintiff’s hybrid document does not conform to the Rules of
Civil Procedure, it does not clearly and succinctly summarize and apply any legal principles.
The paragraph by paragraph omnibus approach both complicates the task of the Court and
threatens to waste scarce judicial resources without a considered and clear statement of the
context and the nature of the Main Motion and evidence being filed.

18. This decontextualized approach of raising a number of objections to various paragraphs is


inefficient and disorganized, while it serves to distract from an integrated consideration of the
applicable law that governs Anti-SLAPP motions, which it is submitted, renders the
Plaintiff’s motion largely if not completely moot.

19. Consequently, the Defendant points to a recent decision of the Ontario Superior Court where
it was held that preliminary motions to strike affidavits prior to the hearing of the main
motion should be discouraged:

I adopt the law as set out in Neighbourhoods of Windfields to the effect


that preliminary motions to strike affidavits in advance of a main motion
should be discouraged and should only be granted for special reasons.
The evidence before me does not demonstrate either that the affidavit is
so obviously inappropriate that it must be struck or that the need to
respond to the affidavit would entail unreasonable effort or cost or result
in the filing of additional voluminous material.3 [Emphasis added]

20. In so finding, the Court held that it would be just as effective to ignore any content that
should not be in an affidavit as compared to expunging the affidavit in advance of the
motion:

3
Allianz Global Risks US Insurance Co v Canada (Attorney General), 2016 ONSC 29 at para 27, [2016] OJ No 190
[Allianz Global].

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None of these objections rise to the level of “scandalous”. It is not
necessary to expunge the affidavit from the public record. Nor am I
convinced it will be more efficient to strike paragraphs of the affidavit in
advance of the main motion than to simply deal with all of the
evidentiary questions at that time. To the extent that the affidavit
contains argument that should not be in an affidavit – because it is
neither a statement of fact nor information and belief based on facts
deposed in the affidavit – it is just as effective to ignore these paragraphs
as to expunge them in advance of the motion.4 [Emphasis added]

21. Additionally, the Court held that judges frequently identify and disregard inadmissible
evidence:
[…]

c) Judges frequently learn of and disregard inadmissible evidence and are


presumed not to take it into account; and

d) The judge hearing the merits can sanction any inappropriate


introduction of evidence by disregarding it and awarding costs.5

22. What is more, the same Court addressed the circumstances wherein the same judge is hearing
both the preliminary and main motions and nevertheless maintained that preliminary motions
to strike affidavits prior to the main motion should still be discouraged:
I would observe that the situation is little different if the same person is
hearing the motion and the preliminary motion. Where a different master
or judge is hearing the main motion, the concern must be that the judicial
officer hearing the preliminary motion not usurp the role of the judicial
officer hearing the merits. If the same person is hearing both then the
concern must be not to inappropriately form opinions about the weight to
be given to evidence that may bias the hearing on the merits. In addition,
treating the preliminary motion as a separate motion opens the possibility
of two sets of appeals, one an appeal on the preliminary motion and the
other appeal on the merits. This should generally be avoided in my
view.6 [Emphasis added]

23. Thus, even where the same judicial officer is slated to hear both the preliminary and
main motions, as is so in the case at bar, the motions should be heard together to

4
Allianz Global, supra note 3 at para 23.
5
Ibid at para 16.
6
Ibid at para 17.

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avoid the formation of premature opinions and negate the possibility of two sets of
appeals.

24. As addressed more fulsomely under Issue 2 below, all of the Plaintiff’s objections to the
Defendant’s evidence relate to a misapprehension of the kind of evidence of opinion that is
required to support a defence of fair comment under the law of defamation. It makes little
sense to attempt to exhaustively and serially address each paragraph according to the
Plaintiff’s evidentiary arguments as these are all obviated in law by the fact that a Defendant
on an Anti-SLAPP motion is entitled to lead evidence that relates to his opinion and support
of same that resulted in his impugned expressions.

25. While, it is open to the Court, in its discretion to strike the Plaintiff’s motion pursuant to Rule
2.01 for its non-conformity with the Rules, in all of the circumstances it would be the most
just, expeditious and efficient use of judicial resources as required by Rule 1.04 to have the
Plaintiff raise its evidentiary objections as part of its response to the Main Motion. It is clear
that none of the Plaintiff’s objections, as discussed below, are fatal to the Defendant’s case,
while in law the Plaintiff’s motion when addressed on its merits will be found to be
effectively moot given the defences at issue as part of the test under section 137.1 of the
CJA.

26. The Defendant urges this Court, in the interests of efficient and effective hearing
management, to require the Plaintiff to address his comments relating to admissibility of
evidence in his response to the Main Motion. In this manner, the Court will have an
appreciation for the nature of the evidence at issue and the contextual admissibility of the
Defendant’s opinion. In turn, the Defendant shall have a right of reply in which to deal with
any response to the Plaintiff’s evidentiary arguments and questions from the Court.

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ISSUE 2: The affidavit of Michael Bueckert constitutes admissible evidence on a motion

27. As stated above, the primary position of the Defendant, which is central to the analysis on an
Anti-SLAPP motion, relates to the admissibility of evidence that explains, contextualizes and
provides examples of information relied upon to support a defence of fair comment.

28. The elements of the fair comment defence to a defamation action have been outlined by the
Supreme Court in WIC Radio Ltd v Simpson:7
(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.
29. As is clear from the Defendant’s affidavit, 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 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.

30. By detailing the means through which the Defendant arrived at his conclusions pertaining to
the Plaintiff, the affidavit serves as an integral tool to enable the Court to conduct its analysis
as to whether a reasonable person could honestly express the same opinion as the Defendant.
Thus, the content of the affidavit is not merely relevant to the Defendant’s fair comment
defence, but it is necessary in order to determine whether the defence has been made out. As
such, the Defendant respectfully submits that all of the Bueckert affidavit’s content is properly
before this motions court.

7
WIC Radio v Simpson, 2008 SCC 40 at para 1, [2008] 2 SCR 420 [Book of Authorities of M. Bueckert “MB
BOA” at Tab 7].

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31. To recall, the Plaintiff in this motion seeks to attack four types of information contained in
the Defendant’s affidavit, namely: (a) the opinions of Michael Bueckert; (b) references to
tweets and other social media activity; (c) published articles entered as exhibits; and (d) all
footnotes. Each of these elements are admissible as providing the factual basis upon which
the Defendant expressed his opinion about the Plaintiff.

(a) Opinions of Michael Bueckert

32. All of the opinions expressed in the Defendant’s affidavit undergird his defence of fair
comment and are admissible on that basis. They form a sophisticated and considered
latticework of interrelated and mutually reinforcing opinions that coalesce into the Defendant’s
ultimate opinion and the focal point of this action: the Plaintiff’s politics are alt-right.

33. The factual underpinnings of the Defendant’s opinion in this context need not repose upon true
statements about the world, but they must be based on a factual substratum – in this case, the
undisputed fact that the Plaintiff himself communicated a litany of social media expressions.8
The fact that these expressions were authored by the Plaintiff is not in dispute. What is in
dispute is whether the Defendant’s comments in relation thereto are permissible within the law
of defamation. To make an assessment in this regard, the Defendant must be provided the
latitude to explain his opinion.

34. Informed political opinions are necessarily based on vast array of underlying facts and
supporting opinions, perceived, gathered and categorized over extended time periods. The
Defendant’s opinion that the Plaintiff is alt-right is thus supported both by the facts of
Plaintiff’s public expressions as well as i) the Defendant’s own opinions on those expressions,
ii) his opinions on the politics of people whom the Plaintiff has endorsed or affiliated with,

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Affidavit of Michael Bueckert at Tabs S (Tweets by Di Franco re Gavin McInnis); T (Tweet by Di Franco re Blaze
TV); U (Facebook Account of Di Franco); X (Tweets by Di Franco re Alex Jones); AA (Facebook Post by Di
Franco re Political Poll); BB (Tweet by A Current Affair re Lauren Southern); BB (Tweet by Janice Fiamengo re
NZ Mosque Shooting Liked by Di Franco); DD (Tweets by Jack Posobiec Liked by Di Franco); EE (Tweets by Paul
Joseph Watson Liked by Di Franco); FF (Facebook Post by Di Franco re Maxime Bernier); HH (Tweets by Di
Franco re Laura-Lynn Thompson); LL (Tweet by Di Franco re George Soros); OO (Tweet by Di Franco re Cultural
Appropriation Month); PP (Tweets by Stephen Crowder Liked by Di Franco); QQ (Tweet by Di Franco re Shaun
King); RR (Tweets by Di Franco re Acquittal of George Zimmerman); SS (Tweet by Di Franco re Leftists); TT
(Tweets by Di Franco re Anti-Immigration); UU (Tweet by Di Franco re Doug Ford); VV (Facebook Post by Di
Franco re Holocaust Joke) [Motion Record of the Defendant at Tab 5].

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and, crucially, iii) his opinion on what constitutes the alt-right. In many cases, the facts upon
which these opinions are based are so expansive that they are actually a “compendious
statement of facts”, and are therefore admissible within the framework set out in Graat v. The
Queen, 1982 CanLII 33 (SCC), [1982] 2 SCR 819 at pages 839 and 840. In every instance, the
substratum of facts upon which the opinions are based are set out in great detail in the
Defendant’s affidavit and supporting exhibits. Accordingly, the opinions and their factual
underpinnings fall well within the latitude afforded a Defendant advancing a defence of fair
comment and are therefore admissible in their entirety.

(b) References to tweets and social media activity

35. In arriving at his opinion about the Plaintiff, the Defendant has considered both the undisputed
social media activity of the Plaintiff himself, and the social media activity of people who the
Plaintiff has interacted with on social media.

36. While the Plaintiff may not agree with the logic of the Defendant in extrapolating the Plaintiff’s
beliefs from his associations on social media and the commentary of those he has associated
with, the Defendant’s analytical framework of profiling the Plaintiff is both logical and
transparent.

37. It is submitted that in fact most people make such extrapolations in the real world, employers
do it in security clearance tests and the online world is built on networks of linked profiles that
tell a story of who people are by what they do online. Such a narrative may be deceptive or
erroneous, but it is common, defensible and easily explicable. Accordingly, a consideration of
the pattern of social media activities of the Plaintiff’s associates, colleagues and persons about
whom the Plaintiff has opined is relevant and admissible on this motion.

38. Where persons whom the Plaintiff has commented upon have engaged in scandalous activity,
the scandalous activity engaged in by these figures is completely relevant and admissible,
provided that it bears upon the Defendant’s opinion, which in the framework of the
Defendant’s affidavit it consistently does.

(c) Published articles entered as exhibits

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39. The Defendant has also informed his beliefs about the Plaintiff based on published articles. In
certain cases, he has entered these articles as exhibits. These exhibits are admissible as proof
of what the Defendant has based his opinion upon and not necessarily for the truth of their
contents. The articles need not be introduced by an expert as the Defendant is simply stating
that he has relied upon them to substantiate his belief.

(d) The use of footnotes

40. In certain cases, the Defendant has also identified articles he has relied upon but has not entered
them as exhibits. The Rules of Civil Procedure do not require an affiant to attach into evidence
the source of his belief in each instance, but rather, it is sufficient for an affiant to identify the
source of his belief. For the sake of convenience and transparency, in some instances, the
Defendant included the internet location or URL of the information that he obtained from a
public source. Logically this provides some method for the Plaintiff to have located the source
information, but the fact of this identifier does not make the information inadmissible as a
source of the Defendant’s belief.

41. Where the source of the Defendant’s belief is contained in a footnote, as he explains in his
affidavit, this is a reference to where he has obtained information from. The formatting of the
source of his information in the form of a footnote does not make the footnote invalid, but
simply provides another reference point for how the Defendant supported his views.

42. It was open to the Plaintiff to challenge any source of the Defendant or specifically provide
evidence to indicate that certain URL information was inaccurate, but the Plaintiff chose not
to do so. The veracity of the underlying information contained in source notes is a matter of
argument for the Plaintiff to raise, but instead of taking issue with the accuracy of information,
the Plaintiff has decided to attack the Defendant’s reliance on sources.

43. With respect, it is not illogical, uncommon, inappropriate, foolhardy or scandalous for the
Defendant to have analyzed the Plaintiff’s social media behaviour, the behaviour and content
of those with whom the Plaintiff has had social media interactions or has commented upon and
open source academic writings on the topic of the alt-right. To the contrary, as a PhD candidate,
the Defendant’s approach appears to be grounded in a rigorous and academic-style defence of

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his opinion.

44. As argued on the Main Motion, it is further submitted that, in the absence of any competing
evidence or evidence to the contrary regarding the social media views of those figures
identified by the Defendant and the various secondary sources that the Defendant has included
in his affidavit, on a balance of probabilities the Defendant has identified a discourse of alt-
right persons, topics and exchanges.

45. The Court may infer that this “alt-right” political constellation has been established in general
terms or not. However, the ultimate definition or lack of definition of the alt-right is not in
any way fatal to the Defendant’s fair comment defence. In the event that the Court is not
satisfied on a balance of probabilities as to what constitutes the alt-right, to find a valid fair
comment defence, the Court need only conclude that the Defendant’s identification of the
Plaintiff as alt-right is a position that a person could honestly express given the facts of what
the Plaintiff has commented upon publicly and the Defendant’s view of the alt-right. As argued
in the Main Motion, the Defendant’s position is logical, convincing and readily believable.

ISSUE 3: None of the evidentiary objections raised by the Plaintiff affect the admissibility
of the Bueckert Affidavit.

46. In what can be gleaned from the Plaintiff’s motion record, the Plaintiff is seeking to strike
four categories of content within the affidavit of Michael Bueckert based on the following
five arguments:

(i) Speculative information about thoughts and intentions of others / Opinion Evidence Rule
47. The Plaintiff submits that opinion evidence is presumptively inadmissible and has been
described as an inference, deduction, impression or conclusion from an observed fact or
facts. In a typical case, witnesses testify to facts and as such are not entitled to give opinion
evidence. They are only allowed to testify to facts personally or directly from their
knowledge, observation, and experience.

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48. While it may be true generally that a deponent must be limited to testifying about things
within his personal knowledge, for the reasons stated above, the opinion evidence of the
Defendant is admissible for the truth of what constitutes the Defendant’s opinion and what
lies at its foundation.

(ii) Scandalous, frivolous and vexatious statements


49. The Plaintiff also argues that excerpts of a pleading which contain statements that are
irrelevant, argumentative, inserted to create a sensational effect, or that constitute unfounded
allegations should be struck as frivolous or vexatious (George v Harris). Furthermore,
supposition, conjecture, speculation, hyperbole, insinuation, and unqualified opinion have no
place in an affidavit (Children’s Aid Society of. Toronto v AM).

50. However, for the reasons stated above, the scandalous information contained in the
Defendant’s affidavit such as the White Supremacist tendencies and views of those with
whom the Plaintiff has interacted or endorsed on social media constitute relevant components
of explaining how the Defendant has, in his own mind, linked the Plaintiff to the alt-right.
To this end, as a matter of law, nothing can be scandalous which is relevant.9

(iii) Unidentified hearsay is inadmissible


51. Relying on Csak v Mokos, the Plaintiff submits that an affidavit which makes no distinction
between the elements of which the depositor has direct knowledge of and of those which is
held to be true on the basis of hearsay should be struck. In short, Mr. Di Franco submits that
hearsay that is not identified as such is inadmissible (539618 Ontario Inc v Olympic Foods).

52. However, contrary to the Plaintiff’s assertion, the Defendant has consistently identified the
source of his information and belief throughout his affidavit. Where possible he has provided
specific sources of documents that he has relied upon and has also variously included source
documents as exhibits.

9McNabb v Ontario (Attorney General) [2000], OJ No 3248 at para 10, 50 OR (3d) 402 (Ont SCJ) citing Re Enrico
Homes Ltd (1977), 3 CPC 227 (Ont Master) [MB BOA at Tab 18].

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53. In the context of an affidavit explaining the Defendant’s opinion, it is submitted that the
identification of sources is less a determinant of admissibility or inadmissibility as opposed
to a general indicator of transparency and cogency that the Court can use to assess the link of
the Defendant’s opinion to facts relating to the Plaintiff’s admitted social media expressions.
(iv) Rule 4.06(3) of the Rules of Civil Procedure
54. The Plaintiff submits that Rule 4.06(3) states that an exhibit referred to in an affidavit must
be marked; where it is referred to as being attached to the affidavit, it must be attached to and
filed with the affidavit; where it is referred to as being produced and shown to the deponent,
it is not to be attached to or filed with the affidavit, but must be deposited with the registrar
and on the disposition of the matter, the exhibit shall be returned. A copy of an exhibit which
is a document must be served with the affidavit, unless it is impracticable to do so.

55. Here again, the Plaintiff’s objection is without moment because Rule 4.06(3), or any other
rule for that matter, does not require an affiant to provide all evidence and sources of
information as exhibits to an affidavit. It is sufficient, as per Rule 39.01(4), that the source of
the information and belief of the deponent be stated.

(v) Inadmissibility of Academic Sources


56. The Plaintiff relies on 9646035 Canada Limited et al v Kristine Jill Hill et al for the
proposition that academic sources must be accompanied by evidence as to whether the source
was published in any recognized journals, along with the curriculum vitae of the author.
Furthermore, the Plaintiff submits that the Rules must be followed in order to have the source
considered as expert evidence. Without the aforementioned, the Plaintiff argues that the
source should not be given any weight.

57. The Plaintiff’s insistence upon facts being adduced through expert evidence does not in any
way preclude the Defendant from including those academic articles upon which he has based
his opinion. In this regard, it is open for the Defendant to say that by relying on “X” article, I
developed “Y” view and made certain inferences with respect to the Plaintiff and his social
media activity.

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58. Given the fact that the Defendant is an academic, it is logical that he would rely on academic
sources. It is also noteworthy and should be relevant to the Court whether the Defendant has
invented or ascribed meaning to secondary sources or whether he has faithfully captured the
meaning of sources he has included in his affidavit to develop his opinion.

59. All the academic sources in the world may not render the Defendant’s opinion correct, but
the demonstration of a preponderant trend through academic literature can illustrate the
fairness in the Defendant’s view.

60. In addition, some of the academic articles offer opinions which the Defendant has adopted
and which themselves are based on facts set out in the articles. The authors’ opinions thus
constitute components of the Defendant’s overarching opinion that the Plaintiff is alt-right.

61. Because none of the subject matter of the opinions lies “outside the knowledge or
experience” of the trier-of-fact, they need not be proffered by experts and are properly within
the purview of admissible lay-opinion. They are, fundamentally, political opinions. As such,
they may be adopted by a defendant in defamation in support of a defence of fair comment
provided they are honest and based on fact.

ISSUE 4: Information in the Bueckert Affidavit is admissible for the truth of its contents

62. Separate and apart from the general admissibility of all the information contained in the
Bueckert affidavit as evidence of his opinion and sources of information relied upon in
forming his opinion, the source material itself may also be admissible for the truth of its
contents.

63. The admissibility of source information used to inform the Defendant’s opinion is only
relevant to the defence of justification under the law of defamation. Under this defence,
which is also being asserted by the Defendant, the Defendant must show not simply the
fairness of his view based on underlying true facts, but that his view is in fact correct. In this

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regard, it would be incumbent upon the Defendant to demonstrate that, as a matter of fact, the
Plaintiff is politically “alt-right”.

64. In order for the Court to assess the truth of such a statement would require a discernment or
factual inquiry of the Court as to what constitutes the alt-right as a matter of fact. In this
regard, the Plaintiff has failed to provide anything other than certain dictionary definitions of
the term, a Wikipedia article (which itself states that the term “alt-right” is “ill-defined”), and
an email from an academic.

65. By contrast, the Defendant’s opinion of what constitutes the alt-right is based upon a
consideration of varied academic and other sources about the movement, its origins and
analyses of the key actors within the movement. Although the Plaintiff does not accept the
Defendant’s sources, he offers no sources or contradictory evidence to suggest a
countervailing, discrepant or opposing view as to what the alt-right constitutes.

66. On the Main Motion dealing with the Anti-SLAPP provisions of the CJA, the Court must
determine, on the evidence available to it, whether the defences of the Defendant are valid.
In so doing, the Motions Judge is not making trial determinations, but rather she or he is
assessing, on a balance of probabilities, the indicia of whether or not the defences proffered
are valid.

67. Based on the record of evidence before him or her, a Motions Judge has the authority to
make determinations based on hearsay for the purpose of a motion, which would include a
determination of whether a defence of truth can reasonably be made out. In the absence of
direct evidence on a question of relevance to the determination of the motion, the Motions
Judge must assess the quality available evidence, considering: (i) Rule 4.06(2); (ii) the
purpose of Rule 39.01(4); (iii) contentious facts; and (iv) admissibility of hearsay.

(i) Rules of Civil Procedure Permit Hearsay in an Affidavit on a Motion

68. Unless the Rules of Civil Procedure indicate otherwise, affidavits typically are to be limited
to the personal knowledge of the affiant:

17
4.06(2) An affidavit shall be confined to the statement of facts within the
personal knowledge of the deponent or to other evidence that the deponent could
give if testifying as a witness in court, except where these rules provide
otherwise.10

69. However, Rule 4.06 is specifically broadened by rr. 39.01(4) and (5) in the context of both
motions and applications to allow for hearsay:

AFFIDAVITS
Contents – Motions
39.01(4) An affidavit for use on a motion may contain statements of the
deponent’s information and belief, if the source of the information and the fact
of the belief are specified in the affidavit.11

Contents – Applications
39.01(5) An affidavit for use on an application may contain statements of the
deponent’s information and belief with respect to facts that are not contentious,
if the source of the information and the fact of the belief are specified in the
affidavit. [Emphasis added]

70. Therefore, owing to rr. 39.01(4) and (5), the Rules specifically expand the extent to which
hearsay may be used on motions and applications.

(ii) Purpose of rr. 39.01(4) and (5)


71. The Manitoba Court of Appeal in 2017 opined on the purpose of Manitoba’s verbatim
equivalent to Ontario Rules of Civil Procedure rr. 39.01(4) and (5). In so doing, the Court
held that the Rules expand the extent to which hearsay evidence may be used on motions and
applications:

[59] The following comments by Linda S Abrams & Kevin P McGuiness in


Canadian Civil Procedure Law, 2nd ed (Markham: LexisNexis Canada, 2010)
on the Civil Rules of Procedure are also of assistance in identifying the purpose
of QB r 39.01(5) (at para s.11.100):12
The Rules [QB r 39.01(4) and (5)] expand the extent to which hearsay
evidence may be used on motions and applications. They are not
intended to restrict the evidence on which a court may act. Accordingly,
hearsay evidence that is admissible under a general exception to the

10
Rules of Civil Procedure, RRO 1990, Reg 194 at R 4.06(2) [Rules] [Schedule “B”].
11
Rules, supra note 10 at R 39.01(4) [Schedule “B”].
12
Fawley et al v Mosleneko, 2017 MBCA 47 at para 59, [2017] MJ No 131 [Fawley] [MB BOA at Tab 15].

18
hearsay rule under the law of evidence is not subject to the requirements
of the Rules pertaining to information and belief. [Emphasis added]
72. Thus, rather than serving as an alternate means of striking the content of affidavits, rr.
39.01(4) and (5) are designed to specifically facilitate and permit the use of hearsay evidence
on applications and motions, so long as particular criteria have been met.

(iii) Unlike r. 39.01(5), r. 39.01(4) allows hearsay relating to contentious facts


73. A basic application of the principles of statutory interpretation makes clear that while
affidavits on applications cannot contain hearsay pertaining to contentious facts, affidavits on
motions can. Where r. 39.01(5) specifically states that an affidavit on an application can
contain hearsay “with respect to facts that are not contentious”, r. 39.01(4) is silent as to any
such requirement. The absence of any stipulation pertaining to contentious facts signifies that
the Legislature consciously excluded any such limitation of the inclusion of hearsay evidence
in affidavits for use on a motion.

74. The Manitoba Court of Appeal has similarly highlighted the key difference between rr.
39.01(4) and (5):

[51] The key difference between QB rr 39.01(4) and (5) is that, on a motion,
there is a more permissive approach to reliance on hearsay evidence. The logic
of that distinction is that, generally speaking, motions address only procedural
matters whereas applications lead to a final disposition of the rights of the
parties (see Telecommunication Employees Association of Manitoba Inc et al v
Manitoba Telecom Services Inc et al, 2005 MBQB 259 at paras 8-9 (TEAM)).13
[Emphasis added]
75. Ontario’s Divisional Court has also affirmed that it is appropriate for a motions
judge to consider hearsay evidence contained within an affidavit:

[6] […] Sitting as a motions judge I may consider affidavit evidence based upon
information and belief or hearsay. My determinations will not be binding upon a
trial judge. It might well be that the material before the motions judge will not be
admissible at trial. Nonetheless, the hearsay material is properly before me as a

13
Fawley, supra note 12 at para 51 [MB BOA at Tab 15].

19
motion court judge and I take into account the hearsay nature of the allegations
in the Gabriel affidavit.14 [Emphasis added]
76. As such, both a proper reading of the Rules, as well as the case law, supports the principle
that a more permissive approach to hearsay evidence is taken when dealing with affidavits on
a motion.

(iv) Admissibility of Hearsay under r. 39.01(4)


77. Since r. 39.01(4) was enacted, the jurisprudence has addressed the particulars of the rule. An
affidavit for use on a motion, as opposed to an application, may contain statements of the
witness’ information and belief, provided that the source of the information and the fact that
the witness believes in the truth of the statements are specified in the affidavit. However, if
the affiant fails to state the source of the hearsay evidence, the relevant paragraphs will be
struck if they deal with a contentious matter:

Affidavits on a motion that fail to state the source of the deponent’s information
and belief will be struck if the paragraph deals with a contentious matter; but it
may be saved by Rule 1.04 if it deals with non-contentious matters and the
exhibits to the affidavit or other evidence filed on the motion reveal the source
of the information and belief. (Cameron v Taylor (1992), 10 OR (3d) 277 Ont Ct
(Gen Div)).15
78. Additionally, the Divisional Court has held there is no requirement that hearsay evidence on
a motion must be admissible at trial:
“While it is true that the conciliation reports as business records would not be
admitted for the purpose of establishing the truth at trial of the opinions
expressed therein, counsel were unable to direct me to any authorities that stood
for the proposition that the grounds for information and belief must be evidence
that would be admissible at trial. So long as the deponent accurately sets out the
source of the information, she has complied with the requirements of the rule.”16
[Emphasis added]

14
Metzler Investment GMBH v Gildan Activewear Inc, 2009 CanLII 43106 (ON SC) at para 34 citing Makou v
Sada, 1994 CarswellOnt 4487 at para 6 [Gildan] [MB BOA at Tab 16].
15
Chopik v Mitsubishi Paper Mills Ltd, [2002] OJ No 2780 (SCJ) at para 26 [MB BOA at Tab 17].
16
Gildan, supra note 14 at para 33 citing Ontario New Home Warranty Program v Montgomery (1987), 20 CPC
(2d) 295 (Ont SC (Div Ct)) at para 18 [MB BOA at Tab 16].

20
79. Thus, as the Divisional Court has confirmed, so long as the deponent accurately sets out the
source of the information and state their belief in the source, they have complied with the
requirements of the rule.

Conclusion: Defendant’s Affidavit Complies with r. 39.01(4)

80. It is respectfully submitted that the Bueckert Affidavit complies with r. 39.01(4) and
therefore, any hearsay may be considered by the motions judge for the truth of its contents.
At the outset of his affidavit, Michael Bueckert stated:

[…] Where the facts described are based on information and belief, I have
indicated the source of the information by inserting a footnote or in-text citation
where appropriate. I have personally accessed, read, viewed and/or reviewed
each source that I refer to in this affidavit. I believe all of the sources I have used
in this Affidavit to be true and accurate. … I believe in the accuracy and analysis
of the authors cited herein…17
To the extent that I rely upon media articles from online sources in respect of
conduct, statements and beliefs of persons associated with the alt-right, I believe
in the accuracy of the media reporting and have clearly stated the verifiable
source, website or URL of information that can be publicly accessed online.18

81. Michael Bueckert has therefore met the required criteria of rule 39.01(4): a) he has provided
the source of information where the facts described are based on hearsay; and b) he has stated
clearly that he believes in the accuracy of those sources. Accordingly, the hearsay contained
within the affidavit is admissible for the purposes of this motion.

17
Affidavit of Michael Bueckert at para 2 [Motion Record of the Defendant at Tab 5].
18
Ibid.

21
PART 4: ORDER SOUGHT

82. Based on the foregoing, the Defendant seeks the following order :
(a) That pursuant to Rule 1.04, the Plaintiff’s motion to strike parts of the Bueckert Affidavit
be integrated to be addressed by the Plaintiff as part of his response within the Main
Motion;
(b) That the Plaintiff’s motion to strike be dismissed;
(c) Costs to be reserved in the cause.

ALL OF WHICH IS SUBMITTED this 13th day of DECEMBER 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

22
Schedule “A”: List of Authorities

JURISPRUDENCE

Allianz Global Risks US Insurance Co v Canada (Attorney General), 2016 ONSC 29, [2016]
OJ No 190.

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

McNabb v Ontario (Attorney General), [2000] OJ No 3248, 50 OR (3d) 402 (Ont SCJ) citing
Re Enrico Homes Ltd (1977), 3 CPC 227 (Ont Master).

Fawley et al v Mosleneko, 2017 MBCA 47, [2017] MJ No 131.

Metzler Investment GMBH v Gildan Activewear Inc, 2009 CanLII 43106 (ON SC).

Chopik v Mitsubishi Paper Mills Ltd, [2002] OJ No 2780 (SCJ).

23
Schedule “B”: List of Relevant Statutes

LEGISLATION

Rules of Civil Procedure, RRO Reg 194, r. 37.10(2).

CONTENTS OF MOTION RECORD

(2) The motion record shall contain, in consecutively numbered pages arranged in the
following order,

(a) a table of contents describing each document, including each exhibit, by its nature
and date and, in the case of an exhibit, by exhibit number or letter;

(b) a copy of the notice of motion;

(c) a copy of all affidavits and other material served by any party for use on the
motion;

(d) a list of all relevant transcripts of evidence in chronological order, but not
necessarily the transcripts themselves; and

(e) a copy of any other material in the court file that is necessary for the hearing of the
motion. R.R.O. 1990, Reg. 194, r. 37.10 (2).

Rules of Civil Procedure, RRO Reg 194, r. 2.01(1).

EFFECT OF NON-COMPLIANCE
2.01 (1) A failure to comply with these rules is an irregularity and does not render a
proceeding or a step, document or order in a proceeding a nullity, and the court,
(a) may grant all necessary amendments or other relief, on such terms as are just, to
secure the just determination of the real matters in dispute; or
(b) only where and as necessary in the interest of justice, may set aside the proceeding
or a step, document or order in the proceeding in whole or in part. R.R.O. 1990, Reg.
194, r. 2.01 (1).

24
Rules of Civil Procedure, RRO Reg 194, r. 4.06(2).

AFFIDAVITS

4.06(2) An affidavit shall be confined to the statement of facts within the personal
knowledge of the deponent or to other evidence that the deponent could give if
testifying as a witness in court, except where these rules provide otherwise.

Rules of Civil Procedure, RRO Reg 194, rr. 39.01(4) and (5).

EVIDENCE BY AFFIDAVIT

Contents – Motions
39.01(4) An affidavit for use on a motion may contain statements of the
deponent’s information and belief, if the source of the information and the fact
of the belief are specified in the affidavit.

Contents – Applications
39.01(5) An affidavit for use on an application may contain statements of the
deponent’s information and belief with respect to facts that are not
contentious, if the source of the information and the fact of the belief are
specified in the affidavit. [Emphasis added]

25