Peyrow v Kaklin, 2022 ABKB 823

Court of King’s Bench of Alberta Citation: Peyrow v Kaklin, 2022 ABKB 823 Date: 20221207 Docket: 2203 05430 Registry: Edmonton Between: Rameen Peyrow and the Yoga Loft (Alberta) Inc. o/a the Sattva School of Yoga Plaintiffs/Applicants - and - Kenna Kaklin Defendant/Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice W.N.

Renke _______________________________________________________ [ 1 ] On November 30, 2022 the Plaintiffs Rameen Peyrow and the Yoga Loft (Alberta) Inc. (Sattva) brought an application in Urgent Matters Chambers for an interim injunction against the Defendant Kenna Kaklin, prohibiting Ms. Kaklin from defaming the Plaintiffs and requiring her to remove all posts about the Plaintiffs on social media pending the trial determination. [ 2 ] The grounds for the application were that Ms.

Kaklin had defamed the Plaintiffs through a series of online publications in May 2019, March 2022, September 2022, October 2022, and November 2022. The Plaintiffs claimed that the statements made by Ms. Kaklin conveyed that:

• Mr. Peyrow has used yoga classes to take advantage of and abuse students • Mr. Peyrow abused Ms. Kaklin and other individuals • Sattva is an unsafe environment for students, particularly women. [ 3 ] In the Urgent Request, the Plaintiffs claimed that Ms. Kaklin’s continued representations are causing “[i]mmense harm to the applicant’s reputation and livelihood” and she “has failed to heed notices to cease and desist.” [ 4 ] For the reasons that follow, the Plaintiffs’ application is dismissed.

I shall not order an interim injunction. [ 5 ] I will review the background to the application and the governing test for an interim injunction in the defamation context and assess the application on the record. I. Background A. The Proceedings 1. The Action [ 6 ] The Plaintiffs commenced an action against Ms. Kaklin on April 6, 2022. [ 7 ] Ms. Kaklin’s statement of defence was filed on May 17, 2022, asserting (in essence) the truth of her claims. [ 8 ] The Plaintiffs filed a reply on May 27, 2022.

The reply claimed that ( inter alia ) the statements throughout the defence are “vexatious, unfounded, and an abuse of process.” [ 9 ] However, the record discloses neither an application to strike nor an order striking out the statement of defence. 2. The Urgent Chambers Application [ 10 ] The Urgent Request was filed November 28, 2022. It disclosed that Ms. Kaklin was notified by e-mail. [ 11 ] The application was heard on November 30, 2022. Notice was short but an abridgement of time for service was sought. [ 12 ] Both the Plaintiffs and Ms. Kaklin relied on unfiled affidavits in the application. Mr.

Peyrow’s main affidavit was filed on November 28, 2022. His supplemental affidavit was sworn on November 30, 2022. Ms. Kaklin’s affidavit was sworn on November 30, 2022. [ 13 ] In my opinion, I was entitled to rely on the unfiled affidavits under rule 6.11(2): 6.11(2) An affidavit or other evidence that is used or referred to at a hearing and that has not previously been filed in the action must be filed as soon as practicable after the hearing. [ 14 ] Ms. Kaklin had very little time to respond to the application.

She was able to retain counsel and provide an affidavit for the application. [ 15 ] In the circumstances, relying on the unfiled affidavits was fair to both sides and facilitated the quickest means of resolving the application at the least expense (rule 1.2(2)(b)). [ 16 ] The application was not preceded by Questioning or (as might be inferred) Questioning on Affidavit. B. Mr. Peyrow’s Account [ 17 ] Mr. Peyrow was a yoga instructor at Sattva, a yoga studio in Edmonton. Mr. Peyrow is the sole director of Sattva. [ 18 ] In May 2019, Ms.

Kaklin made postings on her Instagram account referring to improper conduct by a yoga instructor with students. The postings did not expressly refer to Mr. Peyrow or Sattva, but readers could infer that Mr. Peyrow and Sattva were the subjects of the postings. Some teachers, students, and staff contacted Sattva about these posts. Counsel for the Plaintiffs sent Ms. Kaklin a cease-and-desist letter. The postings ceased, for a time. [ 19 ] In March 2022, Ms. Kaklin made various social media posts naming Mr.

Peyrow and Sattva and claiming abuses of his position as an instructor, inappropriate conduct with female students, and threats against her if she spoke out. Counsel for the Plaintiffs sent her a second cease-and-desist letter. [ 20 ] In September 2022, Ms. Kaklin wrote a Google review for OCTO Yoga where Mr. Peyrow had been hired to teach yoga. Mr. Peyrow was not explicitly named, but the review referred to a male yoga teacher “RP,” Mr. Peyrow’s initials.

The review stated that this person and another male yoga instructor “have reputations of sleeping with their students” and issued a warning, “Practitioners beware.” [ 21 ] In October 2022, Ms. Kaklin posted two videos to her personal YouTube channel. In the videos Ms. Kaklin described and reflected on events involving her male yoga instructor. She described an abusive relationship with her former yoga instructor. Mr.

Peyrow was not expressly named but his identity could be inferred from her comments. [22] On November 20, 2022, Ms. Kaklin posted an Instagram story with an “Official Statement” that read as follows: I, Kenna Kaklin, state for the record that I was physically, mentally and spiritually abused by a yoga teacher, Rameen Peyrow. My abusehappened over the period 2010 until present day as I still live with the trauma from my time spent in his cult organization …. [23] In his November 28, 2022 affidavit, Mr. Peyrow stated that none of the allegations Ms. Kaklin made about him are true. [24] Mr.

Peyrow stated that he has been contacted by several individuals, staff, students, and teachers about her statements. [25] He is concerned for his reputation and Sattva’s business reputation. He stated that he believed that he and Sattva “will sufferirreparable harm to our respective reputations and to SATTVA’s business that cannot be financially compensated.” [26] In his affidavit of November 30, 2022, Mr.

Peyrow stated the following: 3. … on 24 November 2022, OCTO Yoga where I have been renting space, cancelled my contract on an immediate basis, as a result ofthe online posts referred to in my first affidavit and the negative publicity for OCTO. 4. I currently have no scheduled yoga classes and no means to make a living as a yoga instructor, as a result of the defendant’s actions. C. Ms. Kaklin’s Account [27] Ms. Kaklin described the following in her November 30, 2022 affidavit. She began yoga classes at Sattva taught by Mr.Peyrow in 2010. In 2011 she attended his yoga teacher training.

Part of the mandatory practice to become a teacher was to have one-on-one sessions with Mr. Peyrow. He asked “personal questions” and she revealed personal information about her life and mental health. InSeptember 2014, she commenced having a sexual relationship with Mr. Peyrow. She said this was coerced and described the yogic“release” objective that the sexual contact was purported to serve. She claimed that the sexual relationship continued until 2019. Thesexual relationship was “on and off.” From 2016 to 2019 she taught yoga at Sattva. She referred to Mr.

Peyrow’s efforts to “normalizethe sexualization of the yoga practice” and attached some photographs of her used to market Sattva. She claimed that Mr. Peyrow hadengaged in a pattern of conduct that was abusive and provided some detail. She stated that “[a]t all times [Mr. Peyrow] was my boss andteacher and had significant power over me. I felt that my livelihood, my enlightenment and the inner circle of people at Sattva who weremy primary support network would disappear if I did not appease [Mr. Peyrow].” [28] She claimed to have knowledge that Mr.

Peyrow had sexual relations with other Sattva students and teachers. [29] She attached posts from other two other teachers who claimed that their experiences were like Ms. Kaklin’s. (These postswere unsworn and hearsay, but Ms. Kaklin was resisting an application not using this information to support an application: see rule13.18 and Murphy v Cahill, 2012 ABQB 793, Veit J at paras 25-26; DD v Calgary Counselling Centre, 2017 ABQB 95, Dario J at para43 (“Hearsay may be necessary in response to an application for

summary judgment if the evidence is not within the personal knowledgeof the respondent: Condominium Plan 9320022 v Acta General Inc, 2004 ABQB 932 at paras 19-20. The expectation is that otherwitnesses will be called at trial in place of the hearsay evidence”). [30] Ms. Kaklin also exhibited the Yoga Alliance policy respecting sexual misconduct by yoga instructors. [31] She said that when she became aware that other individuals were being treated as she had been, she made her online posts.She believes that “there is public interest in ensuring that my story is told.” D.

Statement of Defence [32] At the time of drafting and filing the statement of defence Ms. Kaklin was self-represented. The statement of defence is not amodel pleading. It may well be found to contain elements inappropriate to a statement of defence. [33] I understand the crucial elements of the statement of defence (as supported by Ms. Kaklin’s affidavit) to claim the defence oftruth (paras 1, 3, 4, 7, 8). [34] At para 32 of her affidavit, Ms.

Kaklin stated that “I intend to revise my Statement of Defence now that I have the assistanceof legal counsel to ensure that it accurately reflects my defence of truth.” II. Test for an Interim Injunction in a Defamation Case A.

The “Tripartite Test” [35] The usual test for an interim injunction is the “tripartite test” set out by Justice Topolniski in ANC Timber Ltd v Alberta(Minister of Agriculture and Forestry), 2019 ABQB 653 at para 38: [38] For the purposes of the injunction/stay, the evidence must relate to the three components of the test enunciated in RJRMacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 at 334: a “serious issue” to be tried (for aprohibitive injunction) or “strong prima facie case” (for a mandatory injunction), irreparable harm, and weighing the balance ofconvenience.

See also Alberta Union of Provincial Employees v Alberta, 2019 ABCA 320 at para 6; 360Ads Inc v Okotoks (Town), 2018 ABCA 319at para 5; Pacer Holdings Construction Corporation v Pelletier, 2020 ABCA 379 at paras 33-37; South Side Manufacturing Ltd v SSDecking Ltd, 2022 ABCA 103 at para 5; Avmax Aircraft Leasing Inc v Air X Charter Ltd, 2022 ABCA 252 at paras 68-69; Canada(Human Rights Commission) v Canadian Liberty Net, (SCC), [1998] 1 SCR 626, Bastarache J at para 46 (whereJustice Bastarache observed that the test reaffirmed in RJR MacDonald was derived from the “landmark decision in AmericanCyanamid Co v Ethicon Ltd, [1975] AC 396 (HL)). [36] However, the tripartite test is not the test for the restraint of an allegedly defamatory publication: Kent v Martin, 2012 ABQB507, Tilleman J at paras 5-6; see Makis v Alberta Health Services, 2020 ABCA 168 at para 58; Sole Cleaning Inc v Chu, 2020 ONSC7226, Shaw J at para 46.

B. Reasons for a Different Test in Defamation Cases [37] The main reason for departing from the tripartite test for interim injunctions in defamation cases is the need to protect freedomof expression. The common law protection for freedom of expression long precedes the advent of the Charter. [38] The leading authority, itself reflective of earlier authority, is Bonnard v Perryman, [1891] 2 CH 269 (CA).

Lord Coleridge CJwrote as follows at 284: But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising thejurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong.

The right of free speech is one which itis for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as nowrongful act is done; and, unless an alleged libel is untrue, there is not wrong committed; but, on the contrary, often a very wholesomeact is performed in the publication and repetition of an alleged libel.

Until it is clear that an alleged libel is untrue, it is not clear that anyright at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing mostcautiously and warily with the granting of interim injunctions. [emphasis added] [39] In Starlight v Onespot, 1998 ABCA 361, the Court of Appeal acknowledged at para 4 that Bonnard v Perryman establishedthe governing test for granting an interlocutory injunction in a defamation case.

See Kent v Martin at para 7; West Edmonton MallProperty Inc v Proctor, 2020 ABQB 161, Mah J at para 128. [40] The Supreme Court of Canada addressed the issue of the correct test for an interim injunction in a defamation case inCanadian Liberty Net. At para 47, Justice Bastarache distinguished between commercial litigation contexts that permit meaningfulcomparisons between the positions of applicant and respondent for tripartite test purposes and contexts where the respondent’s conductis not embedded in commercial activity.

The tripartite test would unfairly skew the assessment of whether an injunction is appropriateagainst a “non-commercial” speaker: 47 In my view, the Cyanamid test, even with these slight modifications, is inappropriate to the circumstances presented here. Themain reason for this is that Cyanamid, as well as the two other cases mentioned above, involved the commercial context in which thecriteria of “balance of convenience” and “irreparable harm” had some measurable meaning and which varied from case to case.

Moreover, where expression is unmixed with some other commercial purpose or activity, it is virtually impossible to use the second andthird criteria without grievously undermining the right to freedom of expression contained in s. 2(

b) of the Charter. The reason for thisis that the speaker usually has no tangible or measurable interest other than the expression itself, whereas the party seeking the injunctionwill almost always have such an interest.

This test developed in the commercial context stacks the cards against the non-commercialspeaker where there is no tangible, immediate utility arising from the expression other than the freedom of expression itself. [41] At para 48, Justice Bastarache confirmed “[t]he inappropriateness of the Cyanamid test ... [in] the jurisprudence relating toinjunctions against allegedly defamatory statements, in both England and Canada.

In both countries, the Cyanamid test has been rejectedfor injunctions against dissemination of defamatory statements.” At para 49, Justice Bastarache favourably quoted Justice Sharpe’s textInjunctions and Specific Performance (2nd ed. 1992 (loose-leaf)) at paras 5.40-5.70 (pp. 5.2-5.4): There is a significant public interest in the free and uncensored circulation of information and the important principle of freedom of thepress to be safeguarded ....

The well-established rule is that an interlocutory injunction will not be granted where the defendant indicates an intention to justify [i.e.prove the truth of] the statements complained of, unless the plaintiff is able to satisfy the court at the interlocutory stage that the wordsare both clearly defamatory and impossible to justify. ... it seems clear that the rule is unaffected by the American Cyanamid case and that the balance of convenience is not a factor. [42] Ontario jurisprudence confirms that the tripartite test does not apply to applications for injunctions to restrain allegeddefamation.

See, e.g., Bagwalla v Ronin, 2017 ONSC 6693 (SC Div Ct), Gordon RSJ at para 18; Maison Privé v Moazzani, 2020ONSC 8199, Steele J at paras 42-44; 385277 Ontario Ltd v Gold, 2021 ONSC 4717, Myers J at para 40. [43] The Ontario jurisprudence is complicated by the “Anti-SLAPP” (Strategic Litigation Against Public Participation) provisionsof the Ontario Court of Justice Act (s. 137.1): see e.g., Levant v Day, 2019 ONCA 244, Pardu JA at paras 22-23; 1704604 Ontario Ltd. vPointes Protection Association, 2018 ONCA 685, Doherty JA at para 94. “Public interest” considerations arising in this context appearto have been imported into the defamation injunction analysis.

See Maison Privé at para 45 where paras 22 and 23 of Levant v Day arequoted: [22] On the other side of the balance, the quality of the expression and the motivation of the appellant are relevant to the measure ofthe public interest in protecting his expression: Pointes, at para. 94. This court in Pointes, at para. 94, held that “deliberate falsehoods,gratuitous personal attacks, or vulgar and offensive language”, all part of the expression here, may reduce the public interest in

protecting that speech, compared to cases where the message is delivered “without the lies, vitriol, and obscenities”. [23] This is not to say that resort to some vulgar language will necessarily deprive expression of value worth protecting.

However,here the tweets posted are imbued with hyperbole and vulgar vitriol, and admittedly false in many respects such that there is little valuein protecting their expression. [44] In Sole Cleaning Inc v Chu at paras 51-52, Justice Shaw illuminated another aspect of the “public interest,” going (broadly)to informal consumer education and protection: [51] The plaintiffs agree that the expression at issue is a matter of public interest rather than private interest.

While I mightcharacterize the posts as more personal in nature, they are also a critique of Sole, the management of the business and treatment of Sole’semployees by its owners .... [52] In my view the public would have an interest in knowing something about a company that offers them services and whether theywish to be supporting that company through paying for the use of its services .... C. Test [45] The test for an interim injunction respecting defamatory publications has two elements. The applicant bears the burden ofproof on both elements.

See Bonnard v Perryman at 284; Kent v Martin at paras 22, 30; West Edmonton Mall v Proctor at para 128;Bagwalla v Ronin at para 19 (adding a third criterion, irreparable harm if the injunction is refused); Sole Cleaning v Chu at para 65. 1.

Defamation [46] First, the applicant must establish, on the record, that defamation occurred (the impugned statements are “clearlydefamatory”): • the words were defamatory, in the sense that the words would lower the applicant’s reputation in the eyes of a reasonable person • the words referred to the applicant, should the reference to the applicant not be express • the words were published, in the sense that the words were communicated to at least one person other than the applicant.

In addition, the applicant would be required to show that the respondent (and not some third party) published the defamatory words. SeeKent v Martin at paras 10, 18, 19 (referring to Grant v Torstar Corp, 2009 SCC 61 , [2009] 3 SCR 640 at para 28; andCherneskey v Armadale Publishers Ltd, (SCC), [1979] 1 SCR 1067 at 1079); Sole Cleaning v Chu at para 56. 2.

No Defence [47] Second, the applicant must establish that that there is no sustainable defence of justification (i.e., of truth), absolute orqualified privilege, or fair comment or other defence, if the respondent has expressed the intention to raise the defence: Kent v Martin atparas 8, 22, 30. (

a) The Standard [48] The standard the applicant must meet has been expressed variously as showing that “beyond doubt” there is no defence,finding for the respondent would be unreasonable, the defence is “wholly unfounded,” the defence is “obviously impossible to justify,”and it is clear on the face of the record that the defence must fail. (

i) Beyond Doubt [49] At para 13 of Kent v Martin, Justice Tilleman quoted S.F. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States 2nd ed, vol 6 at 26-36, 26-37: “A court will look to see if the defendant has a sustainable defence;if so an interim injunction will not be granted. It must be beyond doubt that there are no defences ....” [emphasis added] See also WestEdmonton Mall Property Inc v Proctor at para 128: “the threshold for granting any injunction in a defamation case is high.

First, thecomments in question must be defamatory, and second, it must be beyond doubt that there are no defences ....” (ii) Clearest Cases, Unreasonable Verdict, Wholly Unfounded [50] Bonnard v Perryman adopted the test set out in Coulson v Coulson, 3 Times LR 846, Lord Esher MR: ... the jurisdiction was of a delicate nature.

It ought only to be exercised in the clearest cases, where any jury would say that mattercomplained was libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreasonable. [emphasis added] In Bonnard v Perryman, the majority view was (inter alia) that “we cannot feel sure that the defence of justification is one which, on thefacts which may be before them, the jury may find to be wholly unfounded:” at 284. [emphasis added] (iii) Impossible to Justify (Prove True) [51] In Canada Metal Co v CBC, , 1975 CarswellOnt 903, 7 OR (2d) 261 (Div Ct), Stark J expressed the test inthis way at para 3 (CarswellOnt):

3 .... it has been universally and consistently held by British and Canadian Courts that such an interim injunction will never begranted where the defendant expresses his intention to justify unless the words in question are so clearly defamatory and so obviouslyimpossible to justify that the verdict of a jury accepting a plea of justification as a defence would of necessity have to be set aside as aperverse finding on appeal. [emphasis added] Justice Tilleman referred at para 22 of Kent v Martin to the “essential impossibility of a jury finding that the statement was justified”(see also para 30).

The “impossible to justify” standard is echoed in the passage from Justice Sharpe’s text quoted in Canadian LibertyNet at para 49. [52] Justice Tilleman considered the “impossible to justify” and “beyond doubt” standards to be equivalent. See Kent v Martin atpara 30. (iv) Clear on the Face of the Record [53] In 385277 Ontario Ltd. v Gold, 2021 ONSC 4717, Myers J wrote at para 40 that: [40] The court must refuse a request for an interlocutory injunction based on allegations of defamation where a defence of truth or faircomment is alleged unless it is clear on the face of the record that the defence must fail.

Bagwalla v. Ronin ... at paras 19 and 21. Thishigh bar properly represents the importance placed on freedom of expression in Canada. [emphasis added] (

v) High but not Impossible to Meet [54] While the standard to be met by an applicant is high, the standard may be met. Whether an injunction should or should not beissued involves a contextual determination, in all of the circumstances disclosed by the record.

See Peoples Trust Company v Atas, 2016ONSC 5911, Corbett J at para 29: [29] This requirement has been interpreted contextually in some of the cases, and in my view that approach is the correct one: all ofthe circumstances of the case must be considered in order to decide if the plaintiff's case is strong enough to warrant an interlocutoryinjunction. [footnote omitted] See also Palen v Dagenais, 2012 SKQB 383, Danyliuk J at para 19: [19] The test to obtain an injunction to restrict future free speech is high, but it is not insurmountable.

Here, the plaintiff must showthat the case he can present at trial is virtually ironclad. As well, the court must examine the defendant’s ability to justify the wordscomplained of, as he expressed in chambers that this was his intention .... (

b) Burden of Adducing Evidence [55] Because the applicant bears the burden of proof, the respondent is not – at least as a general rule – required to adduceevidence to support the claimed defence: Kent v Martin at para 29. However, Justice Tilleman referred to some authority suggesting thatif the applicant establishes actual malice on the part of the respondent, the respondent must provide evidence to support a defence: ibid. [56] Justice Cory stated in Botiuk v Toronto Free Press Publications Ltd, (SCC), [1995] 3 SCR 3 at para 79 that: [79] ....

Malice is commonly understood as ill will toward someone, but it also relates to any indirect motive which conflicts with thesense of duty created by the occasion. Malice may be established by showing that the defendant either knew that he was not telling thetruth, or was reckless in that regard. Presumably, if a defence of qualified privilege were asserted, proof of factors defeating the defence in addition to malice would alsoengage a requirement to adduce evidence. See Botiuk v Toronto Free Press at para 80: [80] ... qualified privilege may be defeated if the limits of the duty or interest have been exceeded.

In other words, if the informationcommunicated was not reasonably appropriate to the legitimate purposes of the occasion, the qualified privilege will be defeated. See also Bent v Platnick, 2020 SCC 23, Côté J at para 121. 3. Departure from the Test? (

a) Incompatibility with Technological Developments [57] The test for an interim injunction in defamation cases stretches back to the 19th century. Has the test been outpaced bytechnological developments? [58] Bonnard v Perryman did not contemplate social media. Nonetheless, the distinctive test for interim injunctions in defamationcases has been applied to defamation mediated by the internet. [59] The first paragraph of Kent v Martin refers to publication over the internet and to consequent world-wide easy accessibility ofthe impugned publication.

West Edmonton Mall v Procor, a 2020 decision, concerned a defendant whose “medium of expression is theinternet, by way of her own YouTube channel and various social media platforms:” at para 1. The first paragraph of Maison Privé is asfollows: [1] Technology is an amazing tool. It has changed the way we all work and live in so many ways. In the current times of COVID-

19, technology has facilitated the continuation of work and education for many. However, technology has also given rise to new waysfor harassment to occur and it can proliferate defamatory and hateful content at remarkable speed, with the click of a button. Picturesand words can live on indefinitely on the web, accessible to all. So not only is the web an amazing and important tool, it can also be adangerous one if used for malicious purposes.

Bagwalla v Ronin concerned defamatory comments in websites, including a webpage on Facebook and a petition on change.org: at para3. [60] In Beidas v Pichler (Legassé), , 238 OAC 103 (Div Ct), Justice Murray wrote as follows at paras 47-49and 54: [47] Neither does the fact that the alleged defamatory expression took place on the Internet justify an order in the form decided byHimel J. Certainly defamation on the Internet has presented non-traditional problems. As Blair J.A. said in Barrick Gold Corp. v.Lopehandia, (ON CA), [2004] O.J. No. 2329, 71 O.R. (3d) 416: The Internet represents a communications revolution.

It makes instantaneous global communication available cheaply to anyone with acomputer and an Internet connection. It enables individuals, institutions, and companies to communicate with a potentially vast globalaudience. It is a medium which does not respect geographical boundaries.

Concomitant with the utopian possibility of creating virtualcommunities, enabling aspects of identity to be explored, and heralding a new and global age of free speech and democracy, the Internetis also potentially a medium of virtually limitless international defamation. [48] Blair J.A. did find that there is something about defamation on the Internet – “cyber libel”- that distinguishes it, for purposes ofdamages, from defamation in another medium .... [49] While the Court of Appeal held that the Internet may have an impact on damages in a defamation case, there is no suggestion inBarrick that, in cases involving the Internet, courts should be less vigilant in protecting free speech and expression.

Quite the contrary,Blair J.A. asked the question: “How does the law protect reputation without unduly overriding such free wheeling public discourse?”Clearly, protection of freedom of discourse on the Internet is of fundamental importance to the Court of Appeal .... [54] The Internet should not be less free for expression than other media.

The Internet may present unique problems and uniquechallenges but its use does not and should not invite unwarranted restriction of freedom of expression. [emphasis added] [61] The Bonnard v Perryman test has been applied with full appreciation of the negative features of internet publication indefamation contexts. Technological development has not provided a foundation for abandonment of Bonnard v Perryman. (

b) MS v TV, 2022 MBKB 211 [62] In MS v TV, Associate Chief Justice Perlmutter departed from the Bonnard v Perryman approach and held that the tripartitetest is the appropriate test for an interim injunction in a defamation case: [67] As I said, to apply the Liberty Net test in the manner advocated by the defendant would fail to properly balance the Chartervalue of freedom of expression with the Charter value of protecting the plaintiff’s reputation. When properly balancing these competingCharter values, in the circumstances of the case at bar, it is my view that the Liberty Net test becomes unworkable.

In my view, in theparticular circumstances of the present case, it is the RJR-MacDonald test which most sensibly, justly, and fairly balances thesecompeting values. [emphasis added] [63] Associate Chief Justice Permutter reached this conclusion for the following reasons: [63] Unlike the case at hand, Liberty Net did not involve an action grounded in defamatory statements by one individual againstanother individual .... [63] .... In the case at hand, the plaintiff clearly has a substantial competing interest in protecting his reputation.

Reputation isintimately related to the right to privacy which has been accorded constitutional protection. In Hill v. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130, the Supreme Court of Canada provided as follows (para. 121): Further, reputation is intimately related to the right to privacy which has been accorded constitutional protection. As La Forest J. wrote inR. v. Dyment, [1998] 2 S.C.R. 417, at p. 427, privacy, including informational privacy, is “[g]rounded in man’s physical and moralautonomy” and “is essential for the well-being of the individual”.

The publication of defamatory comments constitutes an invasion of theindividual’s personal privacy and is an affront to that person’s dignity.

The protection of a person's reputation is indeed worthy ofprotection in our democratic society and must be carefully balanced against the equally important right of freedom of expression.... [65] In my view, the applicable test for interlocutory injunctive relief in the present case must reflect both the defendant’s right tofreedom of expression and the plaintiff’s right to privacy and dignity .... [66] .... the application of the Liberty Net test would make it virtually impossible for a plaintiff to obtain interlocutory injunctiverelief even in the face of serious harm caused by the defendant’s speech.

The Liberty Net test would require the plaintiff to prove at theinterlocutory stage that the impugned words are false. Here, the defendant is adamant that the abuse and assaults occurred while theplaintiff is adamant they did not. There is no reliable evidence corroborating either of their positions. The determination of the truth ofthe impugned statements (justification) will require credibility determinations at trial.

Creating a near impossible bar for the plaintiff ona motion for an interlocutory injunction cannot be a proper balancing of competing Charter values. [69] .... the application of the Liberty Net test in circumstances like the present, could unintentionally invite courts and theparticipating parties ... to engage in inappropriately aggressive attacks on the credibility and integrity of the defendant/complainant ....the application of the Liberty Net test — with its uniquely high evidentiary threshold in the context of an interlocutory motion for

injunctive relief — could in my view, have the paradoxical effect of perhaps placing, in the circumstances of a case like the present one, a defendant (who is potentially a complainant in an eventual sexual assault proceeding), in a particularly vulnerable and difficult position. [ 64 ] Plaintiffs’ counsel did frame his argument in terms of the tripartite test.

However, neither MS v TV nor its reasoning were referred to by either party. [ 65 ] Associate Chief Justice Perlmutter is right that both individual dignity and reputation as well as free expression must inform pertinent legal rules, including the rules for determining whether an interim injunction should issue in a defamation context. It may well be, though – and I offer this observation without having had the benefit of argument – that the considered judgment of the common law has been to priorize freedom of expression, pre-trial.

Justice Bastarache’s view was that the tripartite test was skewed against respondents. Associate Chief Justice Permutter’s view is that the common law test is skewed against applicants. I do not discern an interim injunction application mechanism that would balance the interests equally. A choice must be made. The common law may embody that choice. The solution of the common law might be regarded as not seeking balancing in an interim process alone but systemically, in the full context of litigation. Reputation may be subordinated pre-trial but vindicated in damages.

This appears to be the Barrick Gold assessment of the solution. [ 66 ] I note that Canadian Liberty Net did not establish the test for interim injunctions in defamation cases but confirmed it, and the test has been applied for many years across Canada. Reforming settled law is not a project for Urgent Matter Chambers. [ 67 ] Regardless, as a matter of comity, I would not depart from the decision of Justice Tilleman in Kent v Martin or of Justice Mah in West Edmonton Mall v Proctor . [ 68 ] And further, I am bound by the Court of Appeal’s adoption of Bonnard v Perryman in Starlight v Onespot .

Whether the law requires change is for the Court of Appeal to decide. III. Assessment A. Interim Injunction 1. Defamation [ 69 ] The Plaintiffs have established that Ms. Kaklin’s representations are defamatory. Mr. Peyrow is accused of abusing Ms. Kaklin and others and of violating his responsibilities as an instructor. These representations would lower Mr. Peyrow’s reputation in the eyes of a reasonable person and would show that Sattva did not properly protect its students and staff. [ 70 ] Mr. Peyrow and Sattva are the subjects of Ms. Kaklin’s comments, either expressly or by implication. [ 71 ] Ms.

Kaklin’s representations were communicated by her through social media to many individuals. [ 72 ] Ms. Kaklin was the acknowledged author of the representations in question. 2. Irreparable Harm [ 73 ] Should irreparable harm be a factor to be addressed, as in the Bagwalla v Ronin approach, Mr. Peyrow has, on his evidence, suffered harm. He has lost a specific venue for teaching yoga. The damage to his reputation is likely to be deep, broad, and longlasting. The internet’s reach is vast. The internet does not forget. [ 74 ] The parties did not focus submissions on irreparable harm.

The Court of Appeal recently confirmed its approach to this interim injunction factor in Avmax Aircraft Leasing Inc v Air X Charter Ltd , 2022 ABCA 252 at para 76 : [76] There is a great deal of case law clarifying the concept of irreparable harm. In May v 1986855 Alberta Ltd , 2018 ABCA 94 at para 14 , this Court said: ... the test is whether “no fair and reasonable redress can be had in a court of law unless the injunction is granted and that its refusal would be a denial of justice”: Noise Solutions , supra , at para 6.

The question is adequacy of damages as compensation, not complete impossibility: Maverick Equities Inc v The Owners: Condominium Plan no 942 2336 , 2008 ABCA 190 at para 10 . [ 75 ] A damages award would provide some compensation for Mr. Peyrow’s lost employment earnings. That award would be premised on success at trial that would mitigate to some degree the effects of the impugned statements on his reputation. [ 76 ] If this remains a factor to be addressed, I would view the economic impact of the impugned statements as tending to support the Plaintiffs’ application. 3. No Defence [ 77 ] Ms.

Kaklin relies on the defence of justification or truth. [ 78 ] Mr. Peyrow stated in his November 28, 2022 affidavit that “[n]one of the allegations Ms. Kaklin has made about me are true.” Mr. Peyrow provided no evidence contradicting Ms. Kaklin’s claim save his denial. I recognize that if a person is accused of doing something that he or she did not do, the only available response might be a denial. Further, Mr. Peyrow did not have the advantage of

responding to Ms. Kaklin’s affidavit. Ms. Kaklin’s affidavit was provided after his affidavit was filed and his November 30 affidavit was sworn. [ 79 ] I do not discount the weight of Ms. Kaklin’s affidavit evidence because of the timing of its production. She was forced to respond very quickly to an application brought on short notice. The short notice of the application given by the Plaintiffs created the risk of confronting an affidavit that could not be responded to before the application. [ 80 ] Ms.

Kaklin has adduced evidence to support her defence of truth. [ 81 ] Her affidavit describes how she was (allegedly) abused by Mr. Peyrow. Others were as well, as referred to in her affidavit. [ 82 ] Ms. Kaklin provides substantial detail in her affidavit (not merely, for example, bare assertions). The affidavit provides an intelligible context for her claims about Mr. Peyrow. The affidavit does not contain manifestly unbelievable or improbable assertions and it is not self-contradictory. [ 83 ] I do not consider the tone of her statements, as reproduced in Mr.

Peyrow’s November 28, 2022 affidavit and in her affidavit, to be vulgar, vitriolic, obscene, physically threatening, or manifestly unhinged (as seen in some other cases). There are no obvious lies. [ 84 ] She has described her motivation as serving the public interest, as protecting others (in the sense referred to in Sole Cleaning v Chu ). [ 85 ] I recognize and emphasize that Ms. Kaklin’s allegations have not yet been tested and that Mr. Peyrow has not had the opportunity to address her allegations. [ 86 ] Whether the test is whether it is “beyond doubt” that Ms.

Kaklin has no defence, whether a reasonable trier of fact would find her defence to be “wholly unfounded,” whether her lack of a defence is “clear,” whether it would be “obviously impossible” for a trier of fact to find that Ms. Kaklin’s claims are true, or whether it is clear on the face of the record that her claim must fail, in my opinion, the result is the same. [ 87 ] In my opinion, on the record before me, Ms. Kaklin’s defence has merit. It is not wholly unfounded. It is not clear on the face of the record that Ms. Kaklin’s defence of truth must fail. Ms.

Kaklin has provided evidence that supports her claims of truth, and that evidence cannot be rejected or disregarded in this pre-trial procedure. [ 88 ] I therefore decline to grant the interim injunction and dismiss the Plaintiffs’ application. B. Costs [ 89 ] If the parties cannot agree on costs, the parties may submit written submissions by January 27, 2023. I will respond in writing. Heard on the 30 th day of November, 2022. Dated at the City of Edmonton, Alberta this 6 th day of December, 2022. W.N. Renke J.C.K.B.A. Appearances: Frank Friesacher, K.C.

McCuaig Desrochers LLP for the Plaintiffs/Applicants Lisa Martens

Nicholl & Akers Barristers & Solicitors for the Defendant/Respondent