Saying CUPW supports Hamas not libel: Ontario court

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An Ontario court has sided with media commentators who suggested the Canadian Union of Postal Workers was a terrorist sympathizer for participating in a protest a decade ago in Ottawa that featured a Hamas flag.

“Their belief that CUPW supports Hamas, a terrorist organisation, is, in my view, honestly held based on proven facts. It does not have to be a reasonable belief. But it must be an honest one,” concluded Justice Graeme Mew of the Superior Court of Ontario.

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The case, which has as much to do with journalistic ethics as it does with the fraught politics of the Middle East, dates back to a July 2014 march organized by the Association of Palestinian Canadians, which was joined by some postal workers who had been invited by their union. But, it only resolved on Thursday.

The defendants in the case were Jerry Agar, then a host on the now-defunct Sun News Network and a freelance columnist for the Toronto Sun, then owned by Quebecor but now owned by Postmedia, the same company that owns National Post, and Avi Benlolo, at the time the president and CEO of the Friends of Simon Wiesenthal Center for Holocaust Studies and now CEO of the Abraham Global Peace Initiative and a columnist for National Post.

“This is an important vindication of the right to engage in debate and express honestly held views,” said Benlolo in a statement. “This is an important victory for me and one that will be meaningful for the Jewish community.”

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The Ottawa Citizen, another Postmedia newspaper, covered the protest at the time and interviewed Adam John, the man who was carrying a Hamas flag, who said that while a connection could be made between the flag and the terror group, it was meant to be supportive of Islam in general not Hamas in particular.

The presence of the flag, and the long history of CUPW activism on Gaza, formed the backdrop of the commentary that followed, and the lawsuit.

Agar, wrote in the Sun: “Would you want a terrorist sympathizer coming to your door every day?” On the Sun News broadcast, where Agar was filling in for the regular host on The Source, a current affairs program, Benlolo, who had been booked as a guest, said the CUPW leadership “has a history of partnering up with hate groups, anti-Israel groups” and said it was “shocking” that the union “should be so political and siding and partnering up with a hate group like Hamas.”

CUPW sued, arguing that Agar and Benlolo argued, essentially, that the union and its members were terrorist sympathizers, that CUPW supports Hamas and was not at the rally to support “ordinary Palestinians” and that this was defamatory. It also argued that Agar’s Toronto Sun opinion piece was libellous.

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The postal union has long taken a strong stance on the conflict between Israel and Palestinians, with its official policy on peace and disarmament stating that “the occupation of the West Bank and siege on Gaza are major obstacles to justice and a lasting peace,” and expressing support for the boycott, divestment and sanctions (BDS) movement. Its policies have been heavily criticized in newspaper columns and were once criticized, the court ruling says, by Bob Rae, then a Liberal member of Parliament.

“I continue to be astonished by the extent to which ideas which should be on the ‘loony tunes’ margins of politics have now been adopted by a union which represents thousands of members,” Rae previously said, according to the ruling.

The court ended up siding with Agar and Benlolo.

“We are disappointed with the outcome,” said an email from CUPW media relations. “We will reach out when we have more to say.”

At issue was not just CUPW’s history and expressed political views surrounding Gaza and Israel. The ruling also dealt with an emailed statement, sent by a CUPW spokesperson, to journalists who had asked whether the union supported Hamas. The spokesperson did not explicitly disavow that, and that served as a key bit of evidence in the judge’s decision.

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Benlolo, however, attempted to use a truth defence in court — typically the hardest-to-use defence against accusations of libel or defamation.

Although the court noted that when Sun Media contacted the postal union for comment, it “did not take the opportunity to distance itself” from any association with the Hamas flag, and that it supported the Canadian Boat to Gaza initiative, a 2011 push for a flotilla to take humanitarian aid past an Israeli blockade to Palestinians in Gaza, this was not evidence enough that CUPW knowingly marched with Hamas supporters or supports Hamas, or that mail carriers are terrorist sympathizers. That defence failed.

The two men also defended their statements as “fair comment,” a popular legal defence against allegations of defamation or libel. It requires, however, that the defendant make his or her statements without malice and that they have some grounding in fact. Again, the judge took up the issue of CUPW’s failure to disavow Hamas when reached for comment.

“A plausible interpretation of CUPW’s unwillingness to address the question … is that CUPW wanted to avoid directly answering the question,” Mew wrote. “While I am not suggesting that CUPW’s failure to take the opportunity to deny its support for Hamas could reasonably be construed as an acknowledgment that it did, in fact, support Hamas, it nevertheless left the door open for Mr. Agar and Mr. Benlolo to make the comments that are the subject of this action.”‘

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The judge concluded that a banner that ran during the conversation — “Supporting Hamas?” — was a question, not a statement of fact.

CUPW, in attempting to counter the defence of fair comment, noted that it “repeatedly denounced violence, terrorism, racism, and all that Hamas stands for (albeit without specifically mentioning Hamas),” the judge wrote, which was ignored by the defendants, and that the support for BDS or the presence of a Hamas flag of which organizers were unaware were “incapable of forming a factual basis for the assertion” that CUPW was a Hamas sympathizer.

The judge disagreed, finding that CUPW’s long history of activism provided enough factual basis for the opinions expressed.

“Comment does not have to be reasonable. It can even be farfetched or extreme,” the judge wrote. “The necessary factual substratum for the opinions expressed by the defendants has been adequately demonstrated.”

He also found that Agar and Benlolo acted without malice and honestly believe what they said.

National Post was unable to reach Agar for comment.

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