The Divisional Court heard an appeal of a Small Claims Court trial decision dismissing a defamation action brought by the appellant. The decision provides insight into how courts determine whether a statement is objectively defamatory.
The alleged defamation stemmed from a dispute between the appellant and respondent, two elderly religious men. The parties met in 2009, but no evidence suggests they were ever friends. They would sometimes play dominoes and socialize at church. The two had not spoken since an argument in 2014. A dispute over domino fees created a conflict between them. The respondent submitted to the Court that the appellant had made unwanted sexual advances towards him in the past, but the Court rejected this as having no basis.
On July 6th, 2018, the respondent sent the appellant’s wife a text message, which he later sent to all the other members of their church. The part relevant to the defamation action stated:
Your Husband is GAY and his brother […] R.I.P. is GAY as well. By rancing up the churches, putting in tithes, and obeying Sabbath is completely a fake for these two men, The only Sabbath they both follow is BLACK SABBATH THAT STANDS FOR DEVIL WORSHIP…Now you know the truth for the year 2018 about your husband…PS: if your husband continues of what he is trying to do with me, consequences will be upheld.
The appellant brought a claim in defamation, focused on the allegation in the text that he was gay. The Deputy Judge dismissed the claim because the appellant failed to establish that saying he was gay was objectively defamatory.
The Deputy Judge accepted that the text message had the effect of lowering the plaintiff’s reputation in the eyes of his church, but not in the eyes of the broader public. She analyzed the words from the perspective of the greater community and concluded that in 2018, to say someone is gay is not defamatory. The appeal concerned whether or not the Deputy Judge erred in this analysis.
To establish the tort of defamation, a plaintiff must prove, on a balance of probabilities that,
- the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
- the words in fact referred to the plaintiff; and
- the words were published, meaning they were communicated to at least one person other than the plaintiff.
The evidence plainly established factors 2 and 3. The Court’s analysis was in factor 1, whether the words were defamatory in the eyes of a reasonable person. The test for what is meant by a “reasonable person” is laid out in Canadian Broadcasting Corp. v. Color your world Corp. The statement in question should be judged “by the standard of an ordinary right-thinking member of society”. The perspective is of someone “reasonable, that is a person who is reasonably thoughtful and informed, rather than someone with an overly fragile sensibility. A degree of common sense must be attributed to viewers”.
How can a court determine the views of the “reasonable person”?
The Deputy Judge considered legislative changes and the broad support in Canadian society for the equal rights of same sex partnerships – particularly in the last 20 years. In 1995 the Supreme Court of Canada ruled that sexual orientation is included within section 15 of the Charter of Rights and Freedoms, granting gay people equal protection against discrimination. In 2003 Ontario legalized same-sex marriages. Since 2018 gay couples have been entitled to paid family leave.
These were just some of the legislative changes the Court referenced. The Divisional Court supported the Deputy Judge’s use of legislative and human rights reforms as a means to discern the “reasonable person”, who in this case, does not consider being gay defamatory.
While the appellant offered two precedents acknowledging calling someone gay as defamatory, the Court emphasized that those cases reflected dated attitudes. The precedents were from 1974 and 1998. The Divisional Court agreed with the Deputy Judge situating her analysis of community attitudes primarily within the last 20 years.
The appellant argued it was impossible for the Court to determine community attitudes in a pluralistic society comprised of multiple cultures with a broad spectrum of attitudes. The Divisional Court disagreed, holding that the Deputy Judge correctly distinguished between the attitudes held by members of the appellant’s church and the greater community.
The Court cited the Supreme Court of Canada decision Bou Malhab v. Diffusion Metromedia CMR Inc. for the proposition that the “reasonable person” is a person of fair and average intelligence, with a common understanding of the meaning of language, and who entertain a sense of justice and apply moral and social standards “reflecting the views of society generally” (emphasis added by the Court).
- Whether a communication is defamatory or not is measured in reference to the perspective of the reasonable person.
- The reasonable person reflects the general views of society, not the plaintiff’s individual community.
- Courts may use legislation to determine the general views of society.
- The analysis should be measured against contemporaneous rather than older views.
 Grant v. Torstar Corp., 2009 SCC 61, at para 28.
 Canadian Broadcasting Corp. v. Color Your World Corp., 1998 CanLII 1983, 38 O.R. (3d) 97 (C.A.), at para 13.
 Bou Malhab v. Diffusion Métromédia CMR Inc.2011 SCC 9,  1 S.C.R. 214, at para 37.