An Ontario court has found that while a class action for defamation and injury cannot be brought against individuals for promoting hate speech at the Toronto Pride Parade, an amended group "opt in" claim may be advanced against them, similar to US law. The court also ordered that the identities of the defendants’ financial backers be disclosed.

The Ontario court found that claims for defamation, civil conspiracy to injure, and intentional infliction of mental distress were not appropriate for class action certification (Hudspeth v Whatcott, 2017 ONSC 1708). The plaintiffs brought these tort claims against defendants who had obtained permission under false pretenses to march in the Toronto Gay Pride Parade in order to distribute homophobic literature. In the plaintiffs' motion to dismiss the claim for abuse of process, Justice Perell concluded that the claims were too focused on individual effects to be the subject of a class action. Instead, Justice Perell granted the plaintiffs leave to bring those same claims in an opt-in joinder action.

Background

This proposed class action stems from a controversy that occurred at the 2016 Toronto Gay Pride Parade (the Parade). One of the groups that applied for a permit to march in the Parade called themselves the “Gay Zombies Cannabis Consumers Association” (the Gay Zombies). Representing themselves as supporters of the LGTBTQ2SI community, the Gay Zombies marched in the Parade and distributed pamphlets described as “Zombie Safe Sex Packages”.

This was later discovered to be a deception. The Gay Zombies were in fact members of an organization headed by William Whatcott. In the landmark case of Saskatchewan (Human Rights Commission) v Whatcott (2013 SCC 11), a unanimous Supreme Court of Canada held that Mr. Whatcott had violated the Saskatchewan Human Rights Code by disseminating anti-homosexual hate speech. It is claimed that the pamphlets distributed by Mr. Whatcott and the Gay Zombies at the Parade contained hate speech substantially similar to that condemned by the Supreme Court.

The proposed class action

The proposed representative plaintiffs, Christopher Hudspeth and George Smitherman, are two openly gay men who marched in the Parade. On behalf of the class of those who marched in the Parade, Messrs. Hudspeth and Smitherman advanced claims of civil conspiracy to injure and defamation. The class of approximately 9,000 people at the Parade who received pamphlets distributed by the Gay Zombies advanced a claim of intentional infliction of mental distress.

Mr. Whatcott vigorously opposed the suit and sought to have the action dismissed, contending, among other reasons, that the representative plaintiffs’ claims did not disclose a cause of action and were an abuse of process.

Class actions and individual claims

Justice Perell’s lengthy judgment addressed a number of issues raised by the parties, as well as critiquing both sides’ pleadings, which the judge called "intemperate". His decision to dismiss the proposed class action hinged on the fact that the focus of the torts claimed is too individual to be determined on a class-wide basis.

As this was not a certification motion, Justice Perell did not analyse the plaintiffs’ proposed action from the perspective of the familiar certification criteria. Instead, he began by examining the nature of the torts themselves. Defamation is a personal action, meaning that the defamatory words must refer to the plaintiff specifically. “Where alleged defamatory remarks are directed at a group, for there to be a class action, the individual members of the group must be able to show that the defamatory words are about them in particular (the singled-out principle).” Accordingly, only class members who were singled out could advance defamation claims against the defendants. Members who were not individually identified had no claim.

Similar logic applied, in Justice Perell’s view, to the torts of civil conspiracy to injure and intentional infliction of mental distress. These torts too are “individual and up close and personal [in] nature.” Individual damage is a component element of each of these torts; however, individual damage could not be assessed on a class-wide basis, meaning that whether or not the defendants have committed a tort cannot be answered on behalf of the whole class.

A group claim remedy for hate speech?

Justice Perell noted that the representative plaintiffs’ class action appeared to be seeking a remedy against Mr. Whatcott for hate speech against the LGTBTQ2SI community rather than for the specified tort claims. In Justice Perell’s view, this was not an appropriate use of tort law, which focuses on compensation for individual wrongs. The representative plaintiffs could not convert individual claims into a de facto prosecution through the procedural vehicle of a class action.

However, Justice Perell found that there might very well be individual members of the proposed classes who did have viable claims against the defendants. Section 7 of the Class Proceedings Act empowers a court to permit a class proceeding that has been denied certification to continue in another form. Accordingly, Justice Perell permitted the conversion of the proposed class action into an opt-in joinder of claims of the individual class members that have claims against the defendants. This opt-in joinder action, while not a full class proceeding, nevertheless fulfilled the goals of Ontario’s class action legislation.

Justice Perell observed that the opt-in joinder action resembled a type of class action provided for in the US under Rule 23 of the US Federal Rules of Civil Procedure. In the US, Justice Perell explained, there are two types of class actions. The first type resembles that provided for in the Class Proceedings Act. The second type of US class action was created specifically for the purpose of dealing with civil rights violations, and requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Justice Perell raised the possibility that that in their opt-in joinder action, the plaintiffs could seek the remedy of a declaration and a permanent injunction restraining Mr. Whatcott from distributing the pamphlets he gave out at the Parade – effectively, opening the way for a civil remedy for hate speech.

Conclusion

Justice Perell’s decision to dismiss the proposed class action emphasizes that class actions are a procedural vehicle that do not create substantive rights – and accordingly, may not be useful to resolve all claims. At the same time, Justice Perell’s use of an opt-in joinder action serves as a reminder that class actions are not the only form of representative procedure available to plaintiffs. Access to justice may be served by representative actions beyond simply class proceedings. Judges may offer such solutions themselves – but this cannot always be counted upon. Parties should think carefully about whether their particular claims are well-suited to a class action framework, or whether the predominance of individual effects makes another form of representative or group action more practical.