Court File No.

CV-19-00079414

ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MICHELE DI FRANCO

Plaintiff

(Responding Party)

- and -

MICHAEL BUECKERT

Defendant

(Moving Party)

DEFENDANT’S REPLY FACTUM TO THE PLAINTIFF’S RESPONSE

In respect of the Defendant’s Motion to Strike Pursuant to section 137.1 of the Courts of Justice Act

Overview

1. The Defendant hereby replies to the Plaintiff’s response to his motion strike pursuant
to section 137.1 of the Courts of Justice Act. The Plaintiff has not met his onus to prove substantial
merit; additionally, his response does not demonstrate that the Defendant has no valid defence. On
this basis alone, the Plaintiff’s action should be dismissed. In the alternative, should this Court find
that there is any value in the Plaintiff’s proceeding, such value is drastically outweighed by the clear
and admitted public interest value of the subject matters upon with the Defendant’s impugned
expressions opine. Accordingly, as required by section 137.1 of the Act, this Court must dismiss
the Plaintiff’s defamation action with costs.

I. Plaintiff Admits Public Interest Value of Defendant’s Expressions

2. The Plaintiff’s response admits that “the subject of free speech, government policy,
Ontario universities and student organizations are matters of public interest”.1 Accordingly, the

1
Plaintiff’s factum, at para. 20.

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Plaintiff’s responding argument grounds itself uniquely in addressing the merits-based hurdle of the
test identified under section 137.1 of the CJA and the public interest in advancing the underlying
proceeding.

II. Plaintiff Cannot Satisfy Merits-Based Hurdle

A. Plaintiff has failed to Prove Substantial Merit

(i) Appellation of “Alt-Right” not prima facie defamatory

3. With respect to the merits-based hurdle, the Plaintiff presumes that the appellation
“alt right” is “a serious and damaging allegation” without any support for this contention.2 The
Plaintiff readily admits to being conservative, but simply because he eschews the label of being alt-
right, concludes that it is “highly offensive” and therefore defamatory. This unilateral assertion by
the Plaintiff does not establish that the appellation of alt-right is prima facie defamatory. Nor has he
established that it defamatory by implication.3

(ii) “White Supremacist” Comment Not Made Against Plaintiff – does not constitute
defamation

4. The Plaintiff alleges that he was called a white supremacist by the Defendant.4 The
allegation is based on a tweet dated February 6, 2019 which contains a group photograph of nine
individuals, including a photograph of the Plaintiff, below the heading “White supremacists and
MAGA chuds are cheering”. Nobody in the photo is cheering. Four of the nine individuals in the
photo are people of colour.5

5. The tweet does not suggest the Plaintiff is a white supremacist. It suggests that
white supremacists ‘cheered’, metaphorically, the Plaintiff and the Ford government for devising
a campus free speech policy that will require universities to permit talks by white supremacists on

2
Di Franco Factum, para. 85.
3
Major v. McGregor, [1902] OJ No 16 at para 23.
4
Di Franco Factum, para. 85
5
Di Franco Affidavit, para. 14 and Exhibit « 1 », [PMR page 4]

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campuses.6 White supremacists were favourable to the policy, hence they ‘cheered’ it. The tweet
does not suggest that the individuals in the photo, which include premier Ford, a Caribbean-
Canadian, a Moroccan, a Sri Lankan, and an individual of Chinese decent, are white supremacists.7

6. The Plaintiff’s interpretation of the tweet is not only implausible, it is divorced from
the surrounding context. In the context of the other tweets and publications impugned by the
Plaintiff and reproduced below, the Defendant’s meaning is plain: white supremacists ‘cheered’
the Ford government’s free speech policy because it requires universities to permit them to give
talks on campuses. That meaning is consistent with the following impugned publications:

a. “Never forget that before @fordnation killed democratic student representation on campus, he first
intervened to force universities to provide a safe space for Nazis and bigots. these are connected.”8
b. “It’s okay because when @cusaonline & @CharlatanLive & @CKCUFM close down and vacate
their offices, there will be more room for lectures by the neo-Nazis and race IQ scientists who
universities are now not allowed to turn away, thanks to Ford’s beautiful racist brain.” 9
c. “…what these policies do is, on the one hand, they create a disincentive for the university to stop
particular activity from happening on campus. So if the Conservatives or the Maxime Bernier fan
club want to bring to campus like a white supremacist like faith Goldy. Essentially if the university
says ‘no, you cannot have space on campus,’ or something along those lines, the province can pull
the funding from the University. It can [sic] financial penalize it. So it creates disincentives to try
to create a space, not like safe spaces is overused as a term, but like actually a space free from
Nazis, which I think is a valuable goal. And on the other hand, it creates incentives for the
University to penalize students who want to protest Nazis on campus. Basically, they have to
discipline students if they’re too disruptive, again, or else the University faces threats to its
funding. So it is really creating a safe space on campus for Nazis but the same time creating
situation were campus press or progressive organizations are a threat – at risk of being shuttered.”10

7. The law of defamation requires the reasonable observer to be acquainted with the
context of the expression at issue “…in the circumstances of publication of the comments”.11 In this
regard, the circumstances of the publication lead to the conclusion that the white supremacists
referenced in the tweet are not the Plaintiff because it links to the Defendant’s medium.com blogpost
which clearly provides the identity of the white supremacists being referenced, which do not include
the Plaintiff, which refer to only two individuals as white supremacists, neither of whom are the

6
Bueckert Affidavit, para. 10 [DMR Tab 5]
7
Di Franco Affidavit, para. 14 and Exhibit « 1 », [PMR page 4]
8
Di Franco Affidavit, Exhibit “11”, [PMR page 73]
9
Di Franco Affidavit, Exhibit « 23”, [PMR page 86]
10
Di Franco Affidavit, Exhibit “25”, [PMR page 98, lines 98 to 110]
11
WIC Radio Ltd. v. Simpson, 2008 SCC 40 (CanLII), [2008] 2 SCR 420 at paras. 76-79.

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Plaintiff:

“In fact, Rebel reporter Keean Bexte—who has recently been exposed as a white supremacist who worked
at a white supremacist web store—has been tweeting in favour of voluntary student unionism’ for years.”

[…]

“This is, after all, a party that idolizes reactionary grifter Jordan Peterson, and which is led by a Premier
who maintains a ‘great working relationship’ with Rebel Media and refused to distance himself from
white supremacist Faith Goldy.”

8. Moreover, as the evidence reveals, in none of the tweets or social media posts by the
Defendant, does he refer to the Plaintiff as a white supremacist. And if there was any ambiguity in
the Defendant’s expressions whatsoever, it was clarified in his counsel’s letter, which he published
on Twitter February 22nd, 2019. The letter stated unequivocally that “at no time” had he “asserted
that [the Defendant] is a member of or is affiliated to” white supremacy, and that he considered it a
political philosophy that was distinct from the alt-right.12

9. In this sense, the Plaintiff has failed to establish the prima facie requirement of
defamation requiring that the impugned expression refer to him. Instead, the Plaintiff completely
ignores the context in which the Defendant’s expression was made, including any consideration of
the awareness of the Defendant’s audience of the related blogpost and surrounding twitter
commentary of the Defendant. Such an approach is inconsistent with the law of defamation.

B. Plaintiff Does Not Establish “No Valid Defence”

10. The Plaintiff’s response fails to establish his evidentiary onus to prove that the
moving party has no valid defence. In arguing that the proceeding has substantial merit, the Plaintiff
relies upon a vague and improperly pleaded motion to strike significant portions of the evidence in
support of the Defendant’s motion. In this regard, the Plaintiff’s argument must fail for three main
reasons: a) from the uncontroversial evidence on the record including the Plaintiff’s own authored
social media communications, there is a basis to conclude that he is alt-right as a matter of fact or
opinion; b) all of the Defendant’s evidence on the present motion is admissible as it informs the basis
of the Defendant’s fair comment defence; and c) the Plaintiff has failed to meaningfully challenge
the Defendant’s evidence that the Plaintiff’s politics meet the definition of alt-right as established

12
Bueckert Affidavit, para. 21 and Exhibit “G” [DMR]

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by the record.

11. The Plaintiff clearly fails to meet his evidentiary onus on the merits-based hurdle. By
merely providing two dictionary definitions, a Wikipedia article, and an email from an academic
(which, revealingly, does not state the alt-right is synonymous with white supremacy) on the alt-
right, the Plaintiff cannot succeed in demonstrating that the Plaintiff has falsely accused him of being
alt-right. If anything, for the purpose of this motion, the Defendant has shown a panoply of sources
that provide indicia supporting a conclusion that his definition of the “alt-right” is correct. But if
this Court declines to make a determination on this motion as to what constitutes the alt-right, the
term remains without clear definition and is subject to interpretation. Accordingly, the Defendant’s
indication that the Plaintiff is al-right must be fair comment based on the uncontradicted fact that
the Plaintiff has made multiple expressions of his political belief and understanding of the alt-right
- which the Defendant is lawfully permitted to do – even if such opinion could not be shared by most
people. All that is required is that the Defendant honestly hold his view, which may even constitute
an erroneous view.

12. Significantly, the Plaintiff – as a purported free speech advocate - begins his response
by emphasizing the Supreme Court’s caution regarding the limits on free speech.13 Accordingly,
there is no disguising the fact that the Plaintiff is not absolute in his defence of free expression. More
importantly, the record on this motion unequivocally reveals that the Plaintiff is an advocate of
conservative free speech who has sought to quell the Defendant’s expression in the arena of Ontario
public policy, including the Ford government’s “Student Choice” initiative. In particular, the
Defendant’s expressions lawfully draw attention to the Plaintiff’s brand of selective advocacy of
controversial, extreme conservative and alt-right figures – all of whom would, under the Ford
government free speech policy, be permitted to espouse their discriminatory, offensive and racist
views on campus including views advocating White Supremacy.

13. While attempting to paint himself as a moderate conservative, the Plaintiff makes
reference to his organization’s outreach to Jean Chretien, Don Boudria and the Revolutionary
Student Movement;14 however, there is no evidence that the Plaintiff has in fact provided a platform

13
Di Franco factum at para. 1.
14
Plaintiff’s factum at para. 64.

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for these or any other liberals, leftists or related organizations, that he has endorsed their comments
or that he has professed ideological affinity with them. Conversely, the record available to this Court
is that the Plaintiff identifies politically as “Milo”, has specifically endorsed the comments of and
aligned himself with extreme conservative and alt-right figures, has spoken on the show of
prominent alt-right pundit and Islamophobe, Gavin McInnes, has endorsed anti-immigration policies
of Donald Trump and has defended his use of racist epithets such as “Talcum-X”.15

14. If the Plaintiff has some record advocating free expression of liberal or leftist views,
he has failed in his onus to adduce such evidence on the record before this Court and has instead
chosen to endorse the record of the one conservative, anti-feminist and Islamophobic speaker that
was promoted by his group, Janice Fiamengo, in his response to this motion.16 This record
inexorably establishes the Plaintiff as a conservative speech advocate and provides the factual basis
for a conclusion that characterizes him as being “alt-right” as a matter of opinion and as a matter of
fact.

C. No Evidence of Malice

15. A purported honest belief in an opinion can be defeated by the Plaintiff demonstrating
on a balance of probabilities that the Defendant was motivated by malice. To this end, in support of
his contention that the Defendant’s comments were actuated by malice, the Plaintiff asserts two
things: a) that the Defendant failed to research his views; and b) that he failed to take down a post
with reference to white supremacists “cheering”.17 The Plaintiffs contention is erroneous. The
Defendant is a PhD student and has independently researched the nature of alt-right movements and
has based his views on considered sources, for which there is no evidence to suggest are unreliable.18
Although the Defendant’s view is not an expert opinion, it is undeniably a researched one.

16. Secondly, the Defendant’s refusal to take down the tweets referencing “white
supremacists and MAGA chuds are cheering” is based on his view that he neither intended to nor
did he refer to the Plaintiff as a white supremacist. The Defendant’s opinion as to how white
supremacists would respond to the Student Choice initiative, Ford government free speech policy,

15
Bueckert Affidavit, para. 49, 78 and 79 [DMR page 85, 101 and 102]
16
Plaintiff’s factum at para. 63.
17
Plaintiff’s factum at paras. 71-76.
18
Bueckert Affidavit, paras 24 to 31 [DMR pages 72 to 75]

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and the UOSFS brand of free speech advocacy is both reasonable and accurate. In these
circumstances, it is not malicious for the Defendant to defend speech that he reasonably views as
not being defamatory. It is a tautology for the Plaintiff to maintain that the Defendant’s failure to
remove his communication is malicious because the communication is defamatory. The question of
whether the communication is prima facie defamatory is for this Court to determine and is not an a
priori indicator of malice. Accordingly, the Plaintiff has adduced no evidence to demonstrate that
the Defendant’s communications have been actuated by malice.

III. Value of Plaintiff’s Defamation Action Clearly Outweighed by Public Interest Value of
Defendant’s Expression
17. The Plaintiff hangs much of his case for damages, and thus on the balancing of
public interests required by section 137.1(4)(b), on the allegation that he was called a “white
supremacist” by the defendant. The allegation is based on a tweet dated February 6th, 2019 in
which a photograph of the Plaintiff, premier Ford, and the other students who participated in the
university free speech policy consultations, appeared below the heading “White supremacists and
MAGA chuds are cheering”.

18. Even if the tweet referred to the Plaintiff as a white supremacist, it does not justify
an award of greater than nominal damages for the following reasons:

• Despite the Plaintiff’s bolding the words white supremacist dozens of times in
his statement of claim, his affidavit, and in his factum, the tweet is the sole
publication alleged by the Plaintiff to refer to him as a white supremacist;

• It is one of two impugned publications in which the words ‘white supremacist’

were used by the defendant. The other tweet referred to the notorious white
supremacists Stefan Molynieux and Lauren Southern, who had been hosted by the
University of British Columbia Free Speech Club.19

• It was an isolated tweet in the defendant’s otherwise prolific20 Twitter account;

• The Plaintiff’s name does not appear in the tweet;

19
Bueckert Reply Affidavit, para. 3 and Exhibit “A”, SMR.
20
Di Franco Affidavit, para. 5, [PMR page 2]

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 • The Plaintiff is one of 9 individuals appearing in the photo included in the tweet;

• The photo depicts, in addition to the Plaintiff, several people of colour, including
an individual who identifies as black and a “Caribbean-Canadian”, a Sri Lankan
individual, a Moroccan individual, and an individual of Chinese descent. 21 If the
tweet were to be construed as referring to the Plaintiff as a white supremacist, it
follows that everyone in the tweet, including the non-white individuals, were being
referred to as a white supremacists, which is an unlikely interpretation.

• Even though the Plaintiff is not a white supremacist, he has publicly made racist
statements, such as referring to American civil rights activist Shawn King as “talc”
(short for “Talcum X” – hybrid of talcum powder and Malcom X)22, and anti-
Semitic statements, such as tweeting a statement suggesting that Jewish financier
George Soros funds communists.23 Upon questioning, the Plaintiff denied knowing
that talcum powder was chalk and that it was white, though he agreed that it was
“presumably” a pejorative reference to Mr. King’s biracial identity. He claimed to
have neglected to look it up before using it.24

19. The Plaintiff further claims that “there is uncontradicted evidence that a Google
search of his name brings up links to webpages that contain the defendant’s defamatory
statements.”25 That is inaccurate. There is no evidence in the record whatsoever that the links
produced by a Google search of the Plaintiff’s name contain the allegedly defamatory statements.
No evidence has been adduced by the Plaintiff in that regard. The evidence of the Defendant was
that the search produces webpages linking to articles about the Plaintiff’s action, which themselves
contain references to the allegedly defamatory statements.26 That evidence is uncontroverted.

20. The dearth of evidence of harm to reputation is only brought into sharper relief by
the Plaintiff’s ill-conceived attempt to adduce additional evidence by inserting into his factum at

21
Di Franco Affidavit, para. 14 and Exhibit « 1 », [PMR page 4]
22
Bueckert Affidavit, paras 78-79 and Exhibit “QQ”
23
Bueckert Affidavit, paras 71-73 and Exhibit “LL”
24
Transcript of Cross-Examination of Michele Di Franco (Sept 30, 2019) at pages 74-79 [JSR] Tab 1.
25
Di Franco Factum, para. 92
26
Bueckert Reply Affidavit, para 19, SMR Tab 1.

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paragraphs 95 and 96. The screenshots in these paragraphs are not contained in the record before
this Court and should be struck.

21. Having acquiesced to the fact that the Defendant’s impugned expressions are a matter
of public interest, two things are abundantly clear. First, the Defendant’s criticisms of the Plaintiff
relate to expressions in the public and policy sphere of student politics wherein the Plaintiff was at
the material time a public spokesperson for a University campus group. Secondly, the harm alleged
by the Plaintiff is speculative. The Plaintiff is not a lawyer and was a student engaged in campus
public policy discussions at the time of the Defendant’s comments. There is no demonstrable
prejudice that the Plaintiff has proven that the Defendant’s comments do anything more than bring
to light a litany of endorsements of controversial and incendiary extreme right figures by the
Plaintiff.

22. The Plaintiff’s social media communications are open to the world to view. In
context, it is astounding that the Plaintiff, despite everything adduced on the record in this motion,
has decided to maintain the fiction that his advocacy of certain extreme right public figures is simply
attributable to his free speech advocacy. If there is any value in protecting the right of the Plaintiff
to maintain his identity as a free speech advocate, such value is not encumbered in the least by the
Defendant’s expression, which reasonably qualifies the Plaintiff’s speech advocacy as being
principally geared to alt-right, extreme, controversial and often xenophobic and racist figures. To
this end, the public interest value in maintaining the Plaintiff’s action is negligible and is clearly
outweighed by the public interest in the Defendant’s opposition to the Student Choice initiative and
free speech policy on campus, and its potential to provide a platform for hateful and discriminatory
views.

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 Conclusion

23. In view of the fact that the Plaintiff has conceded the public interest value of the
Defendant’s expressions, has failed to satisfy the Merits-based hurdle required by section 137.1
and has also failed to demonstrate a sufficient public interest in his defamation action to merit the
suppression of the Defendant’s speech, it is submitted that his action must be dismissed with costs.

ALL OF WHICH IS SUBMITTED this 13th day of DECEMBER 2019

_____________________________ ______________________________

Avant Law 403 – 331 Cooper St HAMEED LAW – 43 Florence Street

Ottawa, ON K2P 0G5 Ottawa, ON K2P 0W6
Tel: 613 702 7979 Tel: (613) 627-2974
Fax: 613 702 7970 Fax: (613) 232-2680
Per: Daniel Tucker-Simmons Per: Yavar Hameed
Counsel for the Defendant Counsel for the Defendant

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