In a recent defamation decision, Nanaimo (City) v. Propp, 2024 BCSC 2465, the BC Supreme Court issued a permanent injunction prohibiting the defendant from continuing to defame the plaintiff by alleging that he is a pedophile and “sexualizes children.” The injunction also ordered the defendant to remove any defamatory statements made about the plaintiff from the Internet. The defendant argued he was exercising his freedom of expression and speech; however, the Court held that defamation acts as a limit on these freedoms, and no person has the right to defame someone without legal excuse or justification.
Case overview
The plaintiff is a communications manager with the City of Nanaimo. In his former job, the plaintiff was the communications manager for a school district, where he participated in events that were part of the district’s efforts to create a gender-inclusive environment, including raising a pride flag and publishing a statement supporting a gender-inclusive learning environment. The defendant opposes educating children in sexual orientation and gender identity, and accused the plaintiff of being a pedophile due to his involvement in promoting such education. The defendant made several statements accusing the plaintiff of being a pedophile and of “sexualizing children,” both at public meetings at City Hall and online. Many of the statements were made after the defendant was served with a cease-and-desist letter by the City’s counsel. The plaintiff sued the defendant in defamation, and applied for summary judgement of his claim, seeking a permanent injunction prohibiting the defendant from continuing to defame him. In his response to civil claim, the defendant’s only defence was that he was exercising his right to freedom of expression and speech.
The Court found that there was no evidence that the plaintiff is a pedophile or an individual who sexualizes children. Although not raised by the defendant, the Court also considered whether any other defences to defamation might apply. In defamation law, the defence of fair comment applies when defamatory statements are opinions rather than statements of fact. The comment must be on a matter of public interest, and based on facts. It must be recognizable as an opinion, and found to be an honest belief that a reasonable person could have expressed. The Court found that there was no basis in fact for the defendant’s opinions and no reasonable person could base such an opinion on the facts available to them. According to the Court, the defendant appeared to have joined the ranks of the most extreme opponents of children being educated about sexual orientation and gender identity, accusing anyone involved as being a pedophile.
The Court found that it was plain and obvious that none of the defences to defamation applied in this case, and ordered a permanent injunction restraining the defendant from making any further defamatory statements about the plaintiff and ordering the defendant to remove any defamatory statements posted online. The bar for awarding this type of injunction is relatively high, however, the Court found it was justified in the circumstances. This was due to the egregious nature of the defamatory statements, the fact that they continued after the defendant received the cease-and-desist letter, and the defendant’s repeated assertion of his right to make these statements as part of his freedom of expression. According to the Court, it is “scandalous, reprehensible, and dangerous to accuse another citizen, without evidence, of being a pedophile.”[1]
Key takeaways
This case provides some interesting insight into injunctions as a remedy for defamation. The Court notes that where the defendant is likely to continue to defame despite being found liable in defamation, or where it may be difficult to enforce a damages award, an injunction is an appropriate remedy for defamation. The defendant continued to defame the plaintiff despite being served with a cease-and-desist letter and continued to assert that he had a right to make the defamatory statements as part of his freedom of expression. These factors made it clear to the Court that a permanent injunction was an appropriate remedy.
In addition, the Court issued a mandatory injunction in this case, ordering the defendant to remove his defamatory statements from the Internet. A mandatory injunction orders a party to take positive action, as opposed to a prohibitory injunction which requires a party to refrain from doing something. Courts are generally more reluctant to order mandatory injunctions, because the Court is unwilling to maintain ongoing supervision to determine compliance and is wary of making an order that may have uncertain terms, or may be impossible to comply with. The Court found the mandatory order in this case requiring the defendant to take down the online defamatory material to be justified because it was inexpensive and easily achieved, and there was no ambiguity about what must be done.
Finally, this case demonstrates how the law balances the right to freedom of expression and speech with the right not to be unlawfully defamed. The Court is clear that freedom of speech and expression do not grant anyone carte blanche to defame another person. An opinion on a matter of public interest will not constitute defamation if it is based on fact, is an honest belief and a reasonable person could have expressed the same opinion. In this case, the Court held the defendant’s opinion that the plaintiff was a pedophile because of his work with a school district promoting a gender-inclusive learning environment was not an opinion that a reasonable person could hold based on the facts available.
Dentons’ Litigation and Dispute Resolution group has expertise in the law of defamation. If you have questions about this case or the law of defamation in general, please contact the authors, Morgan Camley, Ryan Bernard, Kay Scorer and Kathryn Gullason.
[1] Nanaimo (City) v Propp, 2024 BCSC 2465 at para. 18.
