Hamilton lawyer fends off defamation suit from ex-city employee with past white supremacist ties
Ontario judge dismisses IT analyst Marc Lemire’s claim against lawyer and activist Craig Burley under anti-SLAPP legislation.
A Hamilton, Ont. tax lawyer has seen off a defamation claim by a former city employee with historic white supremacist connections after a judge dismissed the claim under the province’s anti-SLAPP legislation.
Craig Burley, a tax lawyer and prominent local LGBTQ and community activist, faced a $550,000 lawsuit from IT analyst Marc Lemire, who left his employment with the City of Hamilton in 2019 after an investigation concluded his “off-duty activities and associations did not reflect the culture, values and beliefs” of his employer.
Lemire accused Burley of conducting a “personal attack” against him, blaming the lawyer’s statements and online activity for the termination of his employment, as well as his failure to secure a new job with a matching salary.
However, in a recent decision, Ontario Superior Court Justice Elizabeth Sheard dismissed the claim under s. 137.1 of Ontario’s Court of Justice Act, which allows judges to screen out lawsuits that unduly chill expressions on matters of public interest.
According to the ruling, Burley conceded that his Twitter postings were “exaggerated and provocative,” but denied any malice against Lemire personally.
In the end, the judge accepted that the conduct of the City of Hamilton was the primary focus of Burley’s postings, despite his stated aim for Lemire to be “un-hired.”
“There is an important public interest in allowing and encouraging citizens to speak out when it appears that their local government has failed to act in a manner that is in keeping with the City’s stated values and ethics,” Justice Sheard wrote. “I conclude that, on a balance of probabilities, Mr. Lemire has failed to satisfy the court that the harm that is likely to be or have been suffered by him as a result of Mr. Burley’s expression is sufficiently serious that the public interest in permitting his proceeding to continue outweighs the public interest in protecting that expression.”
“Rather, I conclude that the public interest in protecting the expressions of Mr. Burley, a known activist and critic of the City, and a member of a vulnerable community not infrequently targeted by discrimination, outweighs the public interest in permitting Mr. Lemire’s proceeding to continue,” she added.
According to the ruling, Burley sent the City of Hamilton an unsolicited file on Lemire in the fall of 2018 after learning that he was working in its IT department as a network analyst, labelling Lemire an alleged “hate propagandist.”
When Vice News published an article on Lemire several months later, claiming – based on dated court decisions – that the IT analyst was a former leader of the white supremacist group Heritage Front, Justice Sheard’s ruling says Burley publicized his earlier memo, and began posting comments on Twitter about Lemire’s hiring and the alleged potential security risk his ongoing employment posed.
Lemire claimed that he had been unfairly vilified by Burley’s Tweets, telling the court that he was never a leader of the Heritage Front and that his involvement with the group dated back to his teenage years. In addition, he said that he rejects what they stand for, and did so before he was hired by the City in 2005, when he was 30.
Under cross-examination, the decision says Lemire acknowledged associations with Holocaust-denier Ernst Zundel and former Heritage Front leader Wolfgang Droege, who Lemire described as a “close and personal friend” and “great mentor” in a 2005 online post following Droege’s murder.
In her preliminary assessment of Lemire’s claim required by the anti-SLAPP provisions, Justice Sheard found that the action had substantial merit, but that Lemire fell short in showing that Burley’s pleaded defences of justification and fair comment had no real prospect of success.
“As I have noted throughout these reasons, the ‘sting’ or main thrust of Mr. Burley’s defamatory comments is that the City, whose Mayor invites its citizens to ‘stand up against prejudice, exclusion and discrimination,’ hired someone to work in its IT department who had a lengthy and public association with persons and groups whose values conflict with the City’s expressed values,” Justice Sheard wrote.
“As discussed above, the evidence on this motion provides an ample factual basis for Mr. Burley’s statements. Quite apart from the information known to Mr. Burley when he made his tweets, the public reason given by the City for ending its relationship with Mr. Lemire – that Mr. Lemire’s ‘off-duty activities and associations did not reflect the culture, values and beliefs of the City’ – also provides evidence that supports the substantial truth of Mr. Burley’s comments,” she added, acknowledging the limited nature of the evidence available at this early stage.
In any case, the judge found that Lemire would have difficulty establishing that he had been harmed by Burley’s Tweets.
“I accept that I do not have all the evidence, and that Mr. Lemire is not required to prove harm or causation, but must simply provide evidence upon which I might draw an inference of likelihood in respect of the existence of the harm and the relevant causal link. I am not required to make a definitive determination of harm or causation of that harm,” Justice Sheard wrote. “With that caveat in mind, I conclude that Mr. Lemire has not met his burden. At best, Mr. Burley’s tweets over the course of approximately four months are merely a drop in the bucket of what has been said about Mr. Lemire for decades. I conclude that Mr. Lemire has failed to provide evidence reasonably capable of belief upon which I could make an inference of the likelihood of the existence of harm and the relevant causal link arising from anything Mr. Burley posted.”
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