maaeImwene Pee eS See ee eee eee BETWEEN: Court File No. C68341 COURT OF APPEAL FOR ONTARIO MICHELE DI FRANCO, Plaintiff (Respondent) and MICHAEL BUECKERT Defendant (Appellant) FACTUM OF THE PLAINTIFF (RESPONDENT) VICE & HUNTER LLP Barristers & Solicitors 101-85 Plymouth Street Ottawa, ON KIS 3E2 JF. Lalonde LSO# 50476V (fllonde@viceandrunter.ca Tel: 613-232-5773 Fax: 613-232-3509 Lawyers for the plaintiff (respondent)a a | i | Court File No. C68341 COURT OF APPEAL FOR ONTARIO. BETWEEN: MICHELE DI FRANCO. Plaintiff (Respondent) and MICHAEL BUECKERT Defendant (Appellant) FACTUM OF THE PLAINTIFF (RESPONDENT) Index Tab1 Factum of the Plaintiff Tab A List of Authorities Tab2 Respondent's Certificateem ee Court File No. C68341 COURT OF APPEAL FOR ONTARIO. BETWEEN: MICHELE DI FRANCO Plaintiff (Respondent) and MICHAEL BUECKERT Defendant (Appellant) FACTUM OF THE PLAINTIFF (RESPONDENT) PART II - SUMMARY OF FACTS 1. The Plaintiff was a student at the University of Ottawa at the time of the defamation. He has completed his Bachelor of Social Sciences in Economics and Political Science and a Masters in Economics. He is currently attending Albany Law School studying for a Juris Doctor. Affidavit of Michele Di Franco, sworn July 29, 2019, at para. 2, Exhibit Book Tab 50, p. 386 Respondent's Compendium at Tab 6 2. The Plaintiff was the Vice-President Finance of a student club known as uOttawa Students for Free Speech from November 2017 until April 2019. Affidavit of Michele Di Franco, sworn July 29, 2019, at para. 2, Exhibit Book Tab 50, p. 386, Respondent's Compendium at Tab 6 3. Between September 2018 and February 2019, and ongoing, the Defendant made comments about the Plaintiff through his Twitter account seemingly as part of his— i ee opposition to the Ford government's Student Choice Initiative and Free Speech Policy. Affidavit of Michele Di Franco, sworn July 29, 2019, at para. 3, Exhibit Book Tab 50, p. 387, Respondent's Compendium at Tab 6 |. The Defendant is a prolific user of Twitter and by February 27, 2019 had at least 4,347 followers. As of November 20, 2019, the number of his followers had increased to 6,632. The Defendant is also identified on the social media website Facebook under the name “Mike Bee”. Affidavit of Michele Di Franco, July 29, 2019, at para. 5, Exhibit Book Tab 50, p. 387, Respondent's Compendium at Tab 6 Some of the defamatory messages that the Appellant has posted online are as follows: Defendant's Tweets i. Who is @fordnation listening to on free speech? Not student unions, or elected student representatives, but an unofficial student club at #uOttawa who represents nobody, platforms anti-feminists, & who spoke to facist. ii, Never forget that before @fordnation killed democratic student representation on campus, he first intercened to force universities to provide «a safe space for Nazis and bigots. These are connected. ttonpoli. iii, @fordnation & @DrFullertonMPP are killing funding for: LGBTQ students [;] Racialized students [;] Indigenous students [;] Sexual violence prevention [;] campus food bank [;] & more just because a handful of extremist alt-right dudes told them to! Honpoli iv. I think it is extremely important to note that Ford's student-union-busting policy, which will devastate all campus activities, was the result of aa =a2I m= aE eee SEC eUCUSElUlUerlUSElCUSU eS vi. vii. consultation process that involved ZERO students - that is, except for the alt-right ones. ps. 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. Btw Jordan Peterson was also present at a PC youth event in August alongside Ford and the Ontario Minister for universities #onpoli I wish I was joking, but the education policy of the province of Ontario is driving (sic) by Jordan Peterson and a handful of alt-right “free speech” activists, including one guy who appeared on Gavin Mclnnes's (sic) show. i. Oops just remembered that @fordnation & @DrFullertonMPP are going to ill my student health insurance just to please a handful of alt-right MAGA chuds Honpoli #ednpoli ttcanlab White Supremacists and MAGA chuds are cheering . When Doug Ford says his plan is “For the Students,” he literally means like..., six students, one of whom appeared on the show of far-right extremist & Proud Boys gang leader Gavin Mclnnes just last year #onpoli ttcanlab #WeAreTheStudents #OSAP . Doug Fords education policy was developed by Mens Rights Activists and lobster fanboys [Each of the above Tweets included a photo of Di Franco, Premier Doug Ford and Education Minister Merrilee Fullerton, with the caption Did Doug Ford consult any students for his “For the Students” plan? Yes-but just the alt- right ones.) xii, xiii, 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 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 . So far, this guy (featured below having a laugh with Gavin Mclnnis (sic), the alt-right leader of the extremist Proud Boys gang) is the onty student toclaim to have been “consulted” ahead of Dou Fords new “For the Students” plan, He claims to have given Ford the idea. #Onpoli [This Tweet includes a photograph of Michele Di Franco] xv. xvi. xvii, Fyi the “free speech” crowd is literally killing all student unions and campus newspaper in Ontario, make of that what you will. Its okay because @cusaonline & @CharlatanLive & @CKCUFM close. down and 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. Speaking of Ford's failure to consult with elected student leaders, it’s never not worth pointing out that this government is taking its cues from alt- right bros, lobster fanboys & Men's Rights Activists. Defendant's Blog Post Available on Medium.com xviii. xix. 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. This was Michele Di Franco, Vice President of Finance of the University of Ottawa's Students for Free Speech. In August 2018, his organization had participated in a provincial Free Speech Roundtable alongside other Free Speech groups from the University of Toronto and York University... These particular “free speech” groups were formed in recent years in order to defend the presence of hateful and bigoted views on campus, from Jordan Peterson’s transphobic (sic) conspiracy theories to Faith Goldy’s ethno-nationalism. In fact, these groups often appear to have alt-right ideological tendencies themselves... Defendant's Podcast Interview of January 21, 2019 xxi. Exactly. Their main thing has been to, um, to provide a platform for anti-feminist speakers, and, uh, one of these guys who went on Gavin= ne = a ‘Melnnes’ show last-year before he was banned but this was long after he hhad 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, 1 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. Affidavit of Michele Di Franco, July 29, 2019, at paras. 22 - 44, Exhibits 8 - 24, Exhibit Book Tabs 50, 58-74, p. 391-394, p. 462-496, Respondent's Compendium at Tabs 6 & 7 6. The above tweets have been re-tweeted and “liked” by other Twitter users. The defendant has also frequently re-tweeted his own tweets to increase their reach. Affidavit of Michele Di Franco, July 29, 2019, at para. 4, Tab 50, Exhibit Book Tab 50, p. 387 Respondent’s Compendium at Tab 6 7. On or about February 19, 2019, Di Franco's counsel delivered a cease and desist letter to the moving party. Affidavit of Michele Di Franco, July 29, 2019, at para. 185, Exhibit 65, Exhibit Book Tab 50, p.433, Tab 115, p. 843, Respondent's Compendium at Tab6 & 8 8. On February 22, 2019, the defendant posted the cease and desist letter publicly on his social media accounts. He also posted his own counsel's response on his social media accounts. In his posts, the moving party reiterated that the plaintiff is alt- right, and refused to apologize and retract his statements that Di Franco is a white supremacist and a right-wing extremist. Affidavit of Michele Di Franco, July 29, 2019, at para. 186, Exhibit 66, Exhibit Book Tab 50, p. 434, Tab 116, p. 865, Respondent's Compendium at Tab6&9a a eR ee ae ee ee) 9. To date, the defendant has not removed the libelous statements on his social media accounts about Di Franco, despite the fact that the defendant admitted during cross-examination he does not believe some of the libelous terms he used against Di Franco to be true: Q: [...JBut if you're telling me that you didn't mean to label Mr. Di Franco a white supremacist in this tweet - - is that what you're telling me? A: Yes. Q: So then why don’t you do this, Mr. Bueckert, because this statement looks like you are, by the way. So why don’t you apologize for it, retract that statement and ost it online and take this down? Why don’t you do that? Because my client doesn’t like the fact that you've done that, because it makes it look like you're calling him a white supremacist and a MAGA white chud - and a MAGA chud, sorry. So would you agree then to apologize to my client for having done this, to retract the statement and to take it down from the internet? A: 1 would think about that, except that I don’t believe that is what I called him in this tweet, And I don’t believe that was the implication of what I wrote. (p. 81) Transcript of Cross-Examination on Affidavit of Michael Bueckert, September 25, 2019, pg. 81, line 7. Q. 338-339, Respondent's Compendium at Tab1 10. The defendant was clearly referring to Di Franco by including his photograph and referring to him as, among other things, a “white supremacist”, “extreme alt- right’, an “alt-right MAGA chud”. Such terms are highly offensive in Canadian society and Di Franco takes extreme offense to having been labelled as such by the moving party as it has and will continue to lower his reputation in the eyes of his peers and future prospective employers.=e eee ee 11. The defendant has also conceded that he was intentionally insulting Di Franco with his online attacks against him: A: “Lobster fanboy” is a mild insult. Ll Q: And “chud’, I think that’s an insult, right? A: Yes. I mean it's a dumb insult, yes. Transcript of Cross-Examination on Affidavit of Michael Bueckert, September 25, 2019, pg. 42-43, line 17, Q. 164-168, Respondent's Compendium at Tab 2 12. The tweets are admittedly in reference to Di Franco. Most, if not all of the defendant's references to white supremacist, right wing extremist, include a photograph of Di Franco. 13. Di Franco has since been approached by members of the public, online and in person, that are acquainted with the moving party’s defamatory tweets. 14, The defendant has also conceded that he was referring to the plaintiff in all but one of his tweets: Q: So you're calling [Mr. Di Franco] a Men’s Rights Activist and a lobster fanboy? A: Lam talking about the free speech group and other free speech groups like his. Q: But that includes Mr. Di Franco, and you have his picture in there? Ll Q: Okay. So the people that you called a “Men's Rights Activists and a lobster Jinboy” are the people that are included in the photograph?= oS eee Q: [...] So now they’re “alt-right bros”? A: Yes. Q:[...] Now you're referring to my client as an “extremist alt-right dude”? A: Yes [1 Q: Okay, one thing’s for sure and the only thing I care about are the facts, you didn’t call (Mr. Di Franco] alt-light, you called kim an extremist alt-right? A: Yes, I called him an extremist and alt-right. Again, alt-light being a section within the alt-right. Ll Q: So now you're calling [Mr. Di Franco] an “alt-right MAGA chud”, correct? A: Ina general way, yes, I did. [1 Q: [...] You called him an extreme right-winger at one point, and an alt-right. Ar Yes Transcript of Cross-Examination on Affidavit of Michael Bueckert, September 25, 2019, pg. 31-32, Q. 123-128, line 19; pg. 44, Q. 174-177, line 10; 3. 66-38, Q. 273-316, line 18, Respondent's Compendium at Tab 3 15. The defendant conceded during cross-examination that his tweets could be interpreted in different ways, including the defamatory meanings of the statements.Q: You stated it as a fact, that [Di Franco] is-right. We can go over the documents if you want, again. A: | guess it's a difference of interpretation of those tweets and depends on which tweets. Transcript of Cross-Examination on Affidavit of Michael Bueckert, September 25, 2019, pg. 106-108, line 20, Q. 440-445, Respondent's Compendium at Tab 4 16. The only impugned statement that the defendant denies attributing to Di Franco is the one where he uses the term “white supremacist”. Here is a copy of the actual tweet: drm 8 8 2 OR MSOS samen, |= = oe eo ee 10 Affidavit of Michele Di Franco, July 29, 2019, at para, 39, Exhibit 24, Exhibit Book Tab 50, p. 393, Tab 74, p. 496, Respondent’s Compendium at Tab 6 & 7 17. Di Franco is third from the right in the photograph. This is the same photograph used by the plaintiff in most of his tweets where he refers to Di Franco as “extreme right wing” or “alt-right”. 18. Anyone viewing the tweet would have understood that the defendant was referring to the people in the photograph, including Di Franco, as “white supremacists”. 19. The defendant's argument is also inconsistent. The defendant denies calling Mr. Di Franco a white supremacist but admits referring to him as “extreme right- wing”, as part of the “alt-right” and a“MAGA chud”. Q: [...] Actually, let’s talk about that. So you are telling me that you didn’t mean to refer to the people that are in the photograph as -- like, you weren't identifying them as white supremacists? A: Right. I specifically didn’t do that. Q: And you weren't referring to them as “MAGA chuds”? ‘A: “MAGA chuds”, yes. Or specific people. Again, there's sort of a wide coalition who is very happy with Doug Ford’s policy, which included, 1 believe, both categories, which I talk about in my piece. : [...] But if you're telling me that you didn’t mean to label Mr. Di Franco a white supremacist in this tweet ~- is that what you're telling me? A: Yes,1 Transcript of Cross-Examination on Affidavit of Michael Bueckert, September 25, 2019, pg. 80-82, line 16, Q. 335-339, Respondent's Compendium at Tab 1 20, Alll of the above-noted facts were available to the Justice Gomery at the hearing of this motion. PART I - POSITION ON ISSUES 21. The Defendant has raised several issues to be considered by this Court which are addressed below. (i) Did the motions judge err in determining that the Publications could reasonably be found to refer to the Respondent (plaintiff) as a “Nazi”, “Neo-Nazi”, “Race IQ Scientist” or “White Supremacist”? 22. The Defendant takes the position that a determination that the Publication is capable of being regarded as referring to a plaintiff is a question of law reviewable on correctness. The Plaintiff disagrees. The motions judge found that a court could reasonably infer that in the view of the average reader, those pictured with Premier Ford were understood to share the views of the “Nazi”, “Neo-Nazi”, “Race IQ Scientist” or “White Supremacists”!. 23. It is submitted that in making the inference the motions judge sifted through the relevant facts, decided on their weight and drew a factual conclusion. Where evidence exists, as it does in this case, which support the conclusion, interference with this conclusion entails interference with the weight assigned by the trial judge 1 Paragraph 50, Decision on Anti-Slapp Motion, March 30, 2020a i i | 12 to the pieces of evidence. Appellate courts must treat a trial judge’s finding of fact with great deference as well as all conclusions of fact made by the trial judge. Housen v. Nikolaisen, 2002 SCC 33 at paras. 22 & 23 24. In Housen the court emphasized that there is one, and only one, standard of review applicable to all factual conclusions made by the trial judge - that of palpable and overriding error. Housen v. Nikolaisen, 2002 SCC 33 at paras. 24 (ii) Did the motions judge err in determining that there were grounds to believe that the Defendant did not have a valid defence of fair comment? 25. The defence of fair comment will succeed at trial when a defendant proves that: a, The comment is on a matter of public interest; b. The comment is based on fact; c. The comment, though it can include inferences of fact, is recognizable as comment; and d. Any person could honestly express that opinion on the proved facts. 26. Even if the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice. Simpson v. Mair, 2008 SCC 40 (S.C.C.) at para 28, Respondent's Book of Authorities at Tab 1a i 13 27. During his cross-examination, the defendant admitted he did not know Mr. Di Franco. He only knew that he was an executive member of the UOSES. The defendant never reached out to Di Franco or the UOSFS to provide them with an opportunity to address the defendant's assumptions. Q: Yes, So the two photographs that you've arranged to be linked to the statement that you just made include my client? A: Yes. Q: And by September 24 you knew that? A: You mean by January 24? Q: By January 24, A; [ believe at that point I still did not know who he was, specifically, other than I saw him in that one - - two photographs. Q: But I think that you admitted, and we can have a look at it, but I think you just said earlier that his name was mentioned, the vice president of the organization, Di Franco. So you had seen that, I think as far back as September 2, or something. A: 1 mean, I saw the post that said “our VP”, I didn’t pay attention to the name. That wasn’t important to me. Ll Q:So you're calling [Mr. Di Franco] a Men's Rights Activist and a lobster fanboy? A: Lam taking about the free speech group and other free speech groups like his. Q: But that includes Mr. Di Franco, and you have his picture in there? A: ‘es, it includes Mr. Di Franco. Transcript of Cross-Examination on Affidavit of Michael Bueckert, September 25, 2019, pg. 31-32, line 3, Q. 123-128, Respondent's Compendium at Tab3pa i a 4 28, The defendant's intention was clearly to attack the plaintiff's reputation, and he did so without conducting any interviews or any research. Eventually, the defendant became aware of the plaintiff's name and started to use Di Franco’s name and photographs of Di Franco in his statements. 29. The defendant also admitted during cross-examinations that he has no direct knowledge of Di Franco sharing any of the offensive views of Alex Jones, Milo ‘Yiannopoulos, Gavin McInnes, Lauren Southern, Janice Fiamengo, Jack Posobiec, Paul Joseph Watson and Maxime Bernier. 30. Di Franco is an advocate of free speech. The few online statements that the moving party has cherry picked to support his case were made in the context of free speech. They were not endorsements or statements promoting white supremacy, extreme right wing, or the alt-right. This should have been obvious to the moving party. The moving party chose to ignore the obvious in what amounts to be a malicious attack on the character of Di Franco. 31. No reasonable person reading the defendant's statements could conclude that his. statements were opinions, This was conceded by the moving party during cross examination: Q: You stated it as a fact, that he’s alt-right, We can go over the documents if you want, again. A: | guess it’s a difference of interpretation of those tweets and depends on which tweets.15 Q: So you deny that you were stating it as a fact, you deny that? A; It was an assertion based on my opinion. Q: [...] But you didn’t qualify that in any of those tweets that we saw, that it was aan opinion. You left it to the reader to determine that what you were stating was an opinion, at best. Amt I right? A: Possibly. Transcript of Cross-Examination on Affidavit of Michael Bueckert, September 25, 2019, pg. 106-108, line 16, Q. 440-445, Respondent's Compendium at Tab 4 32. Di Franco is an advocate for free speech and was an executive of the UOSFS. The defendant states that UOSFS had only endorsed and only reached out to far-right speakers. This is a complete mischaracterization of the evidence. 33. The defendant alleges in his defamatory statements that the UOSFS was created to promote hate speech. This is another false statement. The UOSFS was created to: 1) protect and advocate for freedom of speech on campus; 2) raise awareness about issues concerning freedom of expression on campus and the local community; and 3) provide a forum to discuss and debate ideas on campus. Affidavit of Michele Di Franco, sworn July 29, 2019 at para, 8-9, Exhibits 1-2, Exhibit Book Tab 50, p, 387; Tabs 51-52, p. 440-445, Respondent's Compendium at Tab 6 & 10 34, Di Franco was defamed by the defendant for appearing on the Gavin Mclnnes show, as though his appearance on the show justifies Di Franco being called a white supremacist and a far-right extremist. The facts are that Di Franco was approached by McInnes in his capacity as an executive of the UOSES to speak about a UOSFS speaking event that had been violently crashed by the same group— a i i ee ee ee 16 that had received an invitation from the UOSES to speak at a UOSFS speaking event, the so-called Revolutionary Student Movement. Instead of participating in the dialogue, the Revolutionary Student Movement violently blocked the speaking, ‘engagement of the UOSFS, as evidenced by the video of the speaking engagement. Affidavit of Michele Di Franco, sworn July 29, 2019, at para. 56, Exhibit Book Tab 50, pg. 396, Respondent’s Compendium at Tab 6 35, At his cross-examination, the moving party conceded that the UOSFS did not limit themselves to right-wing speakers in their outreach efforts: Q: In your range of moderate versus non-moderate, where does the Ottawa U free speech club stand? A: 1 think the club as a whole is more on the - - well it’s hard to tell because they’ve only had one speaker. tl Q: So the evidence that I have is that the Ottawa U Students for Free Speech reached out to the same group that protested Ms. Fiamengo’s speaking event. And you seem to agree with me. That's your understanding as well? A: Yes. Transcript of Cross-Examination on Affidavit of Michael Bueckert, September 25, 2019, pg. 171-173, line 21, Q. 724-731, Respondent's Compendium at Tab 5 36. No reasonable person with all of the relevant information could conclude that Di Franco and the UOSFS were promoting far-right extremist views.— i i i i i i i i i ee ee i 7 37. The defendant conceded during his cross-examination that he does not believe the plaintiff to be a white supremacist, yet he refuses to remove the defamatory tweet where he refers to Di Franco as a “white supremacist and MAGA chud” Q: And you didn’t -- not even apologize or retract the statement where you admit or you say “white supremacists and MAGA chuds are cheering”, right over my client's photograph? A: Right. [felt that was a misinterpretation. | elt that there were a lot of false claims or misinterpretations within the document, and that that specifically did not require a response. Q: So the point being is that you didn’t take it down, you didn’t apologize for it, and it’s still up on the internet as we speak today? A: Yes. Transcript of Cross-Examination on Affidavit of Michael Bueckert, September 25, 2019, pg. 86-87, line 2, Q. 361-365, Respondent's Compendium at Tab5 38. The case of Lascaris v. B’nai Birth Canada, 2019 ONCA 163 is eerily similar and on point. As pointed out by the Ontario Court of Appeal, the burden of the responding party under s. 137.1(4)(a)(ii) of the Courts of justice Act, “is not to show that a given defence has no chance of success”. This approach runs the risk of turning aSLAPP motion into a summary judgment motion. Rather, all that the responding party “need show is that the defence would not succeed”. This is also in reference to the Doherty J.A.’s decision in 1704604 Ontario Ltd. V. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161 at para. 84: ‘The onus rests on the plaintiff to convince the motion judge that, looking at the motion record through the reasonableness lens, a trier 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.18 tl 1704604 Ontario Ltd. V. Pointes Protection Association, 2018 ONCA 685, at para. 84, Respondent's Book of Authorities at Tab 2 39. In light of the actual facts, the Motions Judge, conclude that neither defences of justification or fair comment could succeed. (iii) Did the motions judge err in determining that the balancing of public interest at section 137.1(4)(b) favoured the plaintiff? 40. The statute here requires that one consideration outweigh the other. 41. In the recent Supreme Court decision, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC22, the court addressed whether there is a substantive difference between a weighing exercise and a balancing exercise and which exercise s. 137.1(4)(b) requires. 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Respondent's Book of Authorities at Tab 3 42. The court held that: The provision expressly requires that one consideration outweigh the other. This is substantively different than if the statute had required that two considerations be balanced against one another. The difference can be illustrated by the following quantification of weighing and balancing: where one factor must outweigh the other, the ratio between the two must be at least 51/49; in contract, where one factor must be balanced against the other, a ratio of 50/50, or even 45/55, might be sufficient for a judge to rule in favour of the former. The word “outweighs” necessarily precludes such a conclusion. 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC22 at para. 66, Respondent's Book of Authorities at Tab 3i ae ee i i ee ee a 43. The Motions Judge found, at paragraph 99, that the public interest weighed in favour of allowing the action to proceed to a determination on its merits. 44. The balance of interest favours Di Franco, a young man who is investing significant time and resources into his future, including the study of law. Di Franco's future is threatened by the defendant's irresponsible speech. Di Franco needs a trial to have the issues properly determined. Assuming that Di Franco’s claims are valid, only a court decision enjoining the defendant to take the impugned statements down could assist the plaintiff in mitigating the damage that has been caused by the damages. And such a decision would not prevent the moving party from expressing his views on the issue of funding of student organisations. The defendant would suffer no harm in being enjoined to remove the impugned statements and he can continue expressing his views on student union funding without making gratuitous personal attacks on Di Franco. 45, Referring to an individual as a white supremacist, and part of the extreme right- wing and the alt-right is a serious and damaging allegation. What law firm in Ottawa would want to hire a white supremacist? 46, Despite the presumption of damages previously mentioned, the seriousness and harm to the responding party can rebut the moving party's submission that the respondent failed to lead any evidence to show any damage to his reputation. Bean J.in Cooke v. MGN Limited, [2014] EWHC 2831, [2015] 2 All ER 622 (QB), at para. 43 stated:maa Swe Se ee ee 20 Some statements are so obviously likely to cause serious harm to a person's reputation that this likelihood can be inferred. Ifa national newspaper with a large circulation wrongly accuses someone of being a terrorist or a paedophile, then in either case (putting to one side for the moment the question of a prompt and prominent apology) the likelihood of serious harm to reputation if plain, even ifthe individual's family and friends knew the allegations to be untrue. 47. A lawyer's reputation is central to their ability to carry on their professions, as Cory J. states in Hill at para. 118: The reputation ofa lawyer is of paramount importance to clients, to other members of the profession and to the judiciary. A lawyer's practice is founded and maintained upon the basis of a good reputation for professional integrity and trustworthiness. It is the cornerstone of a lawyer's professional life. Even is endowed with outstanding talent and indefatigable diligence, a lawyer cannot survive without a good reputation. Hill v. Church of Scientology of Toronto, [1995] 2 §.C.R. 1130 at para. 118 48, When reputation is the basis for professional integrity in the legal profession, there is no question that the defamatory words used by the defendant will have a great impact on the plaintiff's ability to secure future employment. The harm suffered by Di Franco and the harm that he will likely suffer as a result of the defendant's impugned expression is “sufficiently serious” that the public interest in allowing the claim to proceed outweighs the public interest in protecting the defendant's defamatory speech against Di Franco. 49. Furthermore, it is not all expressions on matters of public interest that have the same underlying freedom of expression, as stated by Doherty J.A. in Pointes at para. 94:a i 2 “For example, a statement that contains deliberate falsehoods, gratuitous personal attacks, or vulgar and offensive language may still be an expression that relates to public interest. However, the public interest in protecting that speech will be less than would have been the case had the same message been delivered without the lies, vitriol, and obscenities: Able Translations Ltd,, at paras. 82-84 and 96-103.” 1704604 Ontario Ltd. V. Pointes Protection Association, 2018 ONCA 685, at para. 94, Respondent's Book of Authorities at Tab 2 50. The defendant could easily have communicated his discontent about the Ford 51. government's policy without spreading deliberate falsehoods and gratuitous attacks on Di Franco. As Nordheimer J.A. stated in Lascaris, at para. 44: “fair disagreements over policies and principles can be undertaken, indeed ought to be undertaken, through responsible discourse. Whatever disagreements there may be between the appellant's view and the respondent’s views, those views can be exchanged and debated without the need of personal attacks” With respect to the harm analysis, the statutory provision expressly contemplates the harm suffered by the responding party as a result of the moving party’s expression being weighed against the public interest in protecting that expression. As a prerequisite to the weighing exercise, the statutory language therefore requires two showings: (i) the existence of harm and (ii) causation - the harm was suffered as a result of the moving party's expression. 1704604 Ontario Ltd. V. Pointes Protection Association, 2018 ONCA 685, at para.68, Respondent's Book of Authorities at Tab 2zm 2a aI SS OOS 2 52.The Motions Judge could not conclude that Mr. DiFranco’s damages were nominal. She found that damages may be suffered as a result of defamation may be monetary or general”: The preservation of one’s good reputation or one’s personal privacy have inherent value beyond the monetary value of a claim. Both are tied to an individual's liberty and security interests and can, in the appropriate circumstances, be taken into account in assessing the harm caused to the plaintiff by the defendant's expression... 53. The Motions Judge considered that the defendant took issue with the plaintiff's contention that the plaintiff's name was searchable and that search results of his name would produce results of “alt-right” in connection with the plaintiff. The Motions Judge found that whether or not the plaintiff was correct, it was indisputable that the impugned statements remained accessible through an internet search 54. There is uncontradicted evidence that a Google search of Di Franco’s name brings up links to web pages that contain the defendant's defamatory statements. This may continue to be the case forever, but an injunction enjoining the defendant to remove the pages that he has control over will assist Di Franco in restoring his reputation. 2 Paragraph 87, Decision on Anti-Slapp Motion, March 30, 2020 3 Paragraph 91, Decision on Anti-Slapp Motion, March 30, 202023 55. A court decision affirming Di Franco's position and an award in damages would also assist the plaintiff in restoring his reputation. 56. Di Franco has provided evidence that a Google search of his name links him with the alt-right. This search was done from Di Franco's work computer where he had not googled his name previously. Affidavit of Michele Di Franco, sworn July 19, 2019, at para. 198, Exhibit 73, Exhibit Book Tab 50, p. 436, Tab 122, p. 909, Respondent’s Compendium at Tab 6 & 11 57. Even if Di Franco did search his name beforehand on the computer, which is denied, a refresh button would have appeared beside the searched words, just like below:24 58, In December 2019, before the hearing, any employer searching Michele Di Franco Ottawa and Michele Di Franco uottawa, would find the defendant’s Medium.com article on the first page of search results, as shown below: Affidavit of Michele Di Franco, sworn July 19, 2019, at para. 198, Exhibit 73, Exhibit Book Tab 50, p. 436, Tab 122, p. 909, Respondent’s Compendium at Tab 6 en 59. Online threats and hate messages from complete strangers have been posted online regarding Di Franco. Di Franco has received unsolicited messages from25 strangers calling him a “fucking asswipe” a" fucking snowflake”, and a “major pussy” He has been recognized in public by at least one stranger. There was a discussion on reddit.com encouraging violence against Di Franco. A i Affidavit of Michele Di Franco, sworn July 19, 2019, at para. 110-112, ] Exhibits 39 and 54, Exhibit 73, Exhibit Book Tab 50, p. 413, Tab 89, p. 172, Tab 104, p. 704, Respondent's Compendium at Tabs 6 & 12 5 60. Google search results portray Di Franco negatively and the defendant's impugned a statements are the reason for this. But for the defamatory statements, Di Franco's name would not be associated with the extreme right. 61. Finally, the potential damages to Di Franco could be catastrophic. The injury to his reputation is immeasurable. The defendant's defamatory words will greatly affect Di Franco's ability to obtain future employment in the field of law. PART Il - ORDER REQUESTED ls 62. The Respondent respectfully request that the Appeal be dismissed, with costs payable to the respondent on a partial indemnity scale as may be fixed by this Honourable Court. ALL OF WHICH IS RESPECTFULLY SUBMITTED snicbaay of October, 2020.ce | 26 VICE & HUNTER LLP Barristers & Solicitors 101-85 Plymouth Street Ottawa, ON KIS 3E2 JF. Lalonde LSO# 50476V alonde@rviceandunter.ca Tel: 613-232-5773 Fax: 613-232-3509 Lawyers for the plaintiff (respondent)ee ee ee se eye SCHEDULE “A” LIST OF AUTHORITIES Housen v. Nikolaisen, 2002 SCC 33 Simpson v. Mair, 2008 SCC 40 (6.C.C.) 1704604 Ontario Ltd. V. Pointes Protection Association, 2018 ONCA 685 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 Hill v. Church of Scientology of Toronto, [1995] 28.C.R. 1130—_ om — = a oo — = me mm = 1 i Court File No. C68341 COURT OF APPEAL FOR ONTARIO BETWEEN: MICHELE DI FRANCO Plaintiff (Respondent) and MICHAEL BUECKERT Defendant (Appellant) CERTIFICATE estimate that 120 minutes will be needed for my oral argument of the appeal, not including reply. An order under subrule 61.09(2) (original record and exhibits) is not required. DATED AT Ottawa, Ontario this 26 day of October, 20:mma ama awa aoe So Stet Se ‘VICE & HUNTER LLP Barristers & Solicitors 101-85 Plymouth Street Ottawa,ON K1S3E2 JF. Lalonde LSO# 50476V flalonde@viceandhunter.ca Tel: 613-232-5773 Fax: 613-232-3509 Lawyers for the plaintiff (respondent)EEE mewewenmeePeererPeewrnrt ES SF S&S ff = MICHELE DI FRANCO -and- MICHAEL BUECKERT Plaintiff (Respondent) Defendant (Appellant) Court File No. C68341 COURT OF APPEAL FOR ONTARIO PROCEEDING COMMENCED AT OTTAWA FACTUM OF THE PLAINTIFF (RESPONDENT) VICE & HUNTER LLP Barristers & Solicitors 101-85 Plymouth Street Ottawa, ON K1S 3E2 |.F. Lalonde LSO# 50476V flalonde@iceandhunter.ca Tel: 613-232-5773 Fax: 613-232-3509 Lawyers for the Plaintiff (Respondent in Appeal) Box 407,