Case Summary
Borderland Pride et al v. Cawston, Court File No. SC-24-04 (Fort Frances)
In Borderland Pride et al v. Cawston, the Small Claims Court of the Ontario Superior Court of Justice awarded damages of $35,000 plus full costs to the plaintiffs as compensation arising from defamatory social media comments made by the defendant. $35,000 is the monetary limit for claims made in Ontario's Small Claims Court.
The action was commenced by Borderland Pride - a local 2SLGBTQIA+ not-for-profit corporation - and two of its directors, Douglas W. Judson and Peter A. Howie (who are the named partners in this firm).
The court's decision resulted from an assessment hearing on May 3, 2024, held after the defendant, Luke Cawston, failed to file a defence to the plaintiffs' claim. An assessment hearing in the Small Claims Court is comparable to a motion for default judgment in a civil action in the Superior Court.
The claim arose from comments made by Cawston in a Fort Frances-area Facebook group with over 8,000 members where the plaintiffs had made a post to advertise an event promoting 2SLGBTQIA+ inclusion in sport. The event was held in conjunction with a local Junior 'A' hockey organization on March 1, 2024. It featured drag performers and was open to all members of the community to attend.
In his commentary on the promotional post, Cawston falsely stated that Borderland Pride was promoting sex to children and referred to the individual plaintiffs as "diddlers" and "child predators" who were organizing a "pedophile show". He was repeatedly cautioned about the comments.
In awarding damages of $35,000, the deputy judge found that the defendant's remarks were defamatory and "highly injurious to the corporate plaintiff and the individual plaintiffs, both who are legal professionals in a small community." Several courts have previously stated that defamatory statements targeting lawyers will be met with escalated damages owing to the importance of the reputation of members of the bar (see Lascaris v. B'nai Brith Canada, 2019 ONCA 163 and Hill v. Church of Scientology, [1995] 2 S.C.R. 1130).
The court adopted the plaintiffs' submission, relying on Rutman v. Rabinowitz, 2018 ONCA 80, that they were under no obligation to prove actual loss or injury from the defamatory comments (i.e., that damages in defamation are presumed). The court also accepted that the range of damages for defamation involving false allegations or statements of sexual impropriety or misconduct ranges from $30,000 to $75,000, relying on Zall v. Zall, 2016 BCSC 1730.
It is possible that had the claim been brought in Superior Court - which would have required a longer litigation process - higher damages could have been awarded. With pre- and post-judgment interest, the judgment against Cawston is currently in excess of $40,000.
A July 2024 motion by Cawston to set aside the default judgment was dismissed.
This decision highlights the availability of an efficient process at the Small Claims Court for queer organizations and members of the 2SLGBTQIA+ and drag community who are targeted with online attacks and libels to seek justice and vindicate their reputations. In the current political climate, there has been a spike in anti-2SGLBTQIA+ rhetoric and online hate, with the Canadian Security Intelligence Service recently warning of the potential for extreme violence.
The corporate plaintiff was represented by Judson Howie LLP, the named partners of which are the individual plaintiffs. This is one of several libel actions arising from online defamation and harassment related to recent local Pride and 2SGLBTQIA+ events and initiatives. Questions about our defamation practice can be directed to info@judsonhowie.ca.
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