Matthew Remski Sues Genny Wilkinson Priest for Defamation in Canada
Yoga abuse writer Matthew Remski is suing a woman in the U.K. for $140,000 for her Facebook post in reaction to his inclusion of her in his recent book, after she requested him not to include her. Under Canadian law, Remski’s suit will most likely be dismissed as an attempt to silence participation in an international public yoga abuse conversation which he otherwise encourages. Below is an analysis that serves as the basis for this conclusion.
Disclosure by author:
I recently received an email from a reliable source with direct evidence of the contents of the defamation lawsuit filed by Matthew Remski against Genny Wilkinson Priest in Canadian courts. The legal filings are public record in Canada and have been verified as accurate and current via an additional independent source. The reader can find the filings here: https://gofile.io/d/hAeH2U
I am a law student in the U.S. I also practice yoga and have been involved with yoga related litigation in the U.S. in the past. I am a point of contact in the yoga community due to my past legal activities and my current activity on yoga related social media. I have personally interacted with the plaintiff Matthew Remski through Facebook and his website, sometimes supportive of his work and at other times in disagreement. I did not know of Genny Wilkinson Priest before learning about this lawsuit. I did not personally witness the dispute between the claimants when it occurred publicly in 2019.
This post concerns a matter of public interest and is protected from a defamation claim under Canadian law as a report on proceedings in court. R.S.O. 1990, c. L. 12, s. 4(1). I am not yet licensed to practice the law in any jurisdiction and as such, this report is not a legal opinion from a licensed legal expert. I am just a law student writing a post on a matter of public interest. I have applied global principles of law and analysis to reach the conclusions presented based on the available claims and evidence. Reports on proceedings in court are not required to be written by a licensed attorney.
1. About the Case
Matthew Remski “Remski” is suing Genny Wilkinson Priest “Priest” for $100,000 in compensatory damages and $40,000 in punitive damages based on harm to his reputation as well as associated costs, expenses and interest. The case arises from a Facebook post made by Priest on February 16, 2019 about Remski, his book that was about to be published at the time, and Priest’s involvement with Remski’s book. Remski filed his Statement of Claim on March 6, 2019. The alleged defamatory statement can be read in the link above. Priest filed her Statement of Defence on June 14, 2019. No further documents have been filed. Canadian courts were closed for much of 2020, as were courts around the world, due to coronavirus. Courts in Ontario have begun the re-opening process; the current goal is for all courts in Ontario to be operational again by November 2020. Salmaan Farooqui, Paola Loriggio, Coronavirus: Ontario courts resume some in-person proceedings, Global News (October 15, 2020, 9:56AM), https://globalnews.ca/news/7142028/ontario-courthouses-resume-in-person-proceedings/.
Based on analysis of Canadian defamation law and the claims made in the attached proceedings, Remski will most likely not succeed in his defamation claim against Priest. Canadian defamation laws are among the most conservative and outdated among the modern democratic legal systems. However, recently enacted “anti-SLAPP” laws limit defamation claims on matters of public interest that are intended to silence the public conversation. Clearly the dispute and surrounding conversations between Remski and Priest are a matter of public interest. As such, the anti-SLAPP laws will apply. Most likely, the court will rule in Priest’s favor and require Remski to pay Priest’s legal fees, if Priest files an anti-SLAPP motion. Remski will not be able to both write broadly on matters of public interest and enjoy anti-SLAPP protection for his body of professional work on the same subject. Remski’s claim against Priest appears to rely on conservative Canadian defamation laws, in order to silence dissent within the public conversation that modern Canadian law now seeks to protect.
2. Facts and Claims Related to the Dispute
The parties agree on some basic facts as to how their disagreement arose. Remski and Priest are both involved in the yoga world, though they disagree on how to define their involvement, expertise and repute. Remski lives in Toronto, Ontario, Canada. Priest lives in London, U.K. Remski has a website http://matthewremski.com/wordpress/ where he writes about yoga and yoga related controversies among other topics. Priest works for TriYoga in London as a teacher and manager.
The source of what led to the dispute began in January 2018 in London when Remski and Priest met in person to talk about the conversation surfacing around abuse by Patthabi Jois in Ashtanga Yoga. As a student of Patthabi Jois, Priest heard talk about Jois’s abuse but was not abused personally. As an author on topics related to abuse in yoga, Remski wanted to speak with Priest about her experience. The two met and spoke openly.
The dispute arose only towards the end of 2018 when Remski was about to publish a book on this and related topics. Priest wrote to Remski requesting he not include her or her statements of any kind in the book. Remski responded that he would include only publicly sourced material, not in violation of the law. The two did not resolve the dispute to either of their satisfaction. So on February 16, 2019, Priest posted the alleged defamatory statement on her Facebook page, in anticipation of the book and her inclusion in it, against her requests not to be included. Priest claims that both Remski and his book publisher re-published and distributed Priest’s Facebook post and solicited attention and comment from their own social network. Remski claims that Priest’s Facebook post was public for 7 days and 18 hours from February 16–24, 2019. Remski then claims that the post was available only to Priest’s friends list through March 3, 2019 when the post was finally removed. Remski claims that Priest’s post defamed and harmed his reputation first to Facebook’s 2.3 billion users, then to Priest’s audience of 1,335 Facebook friends, and finally in some capacity, to TriYoga’s practitioner community.
Priest claims that Remski’s book was published in March 2019 and includes statements and information she requested him not to include. Priest claims that she removed the post to be conciliatory, not because she admits the post is defamatory. Priest maintains that her Facebook post was a fair comment on a matter of public interest made in good faith and is written in a reasonable tone. Priest maintains her right to comment publicly about Remski’s inclusion of her in his book. Remski maintains that Priest defamed him when she commented on his inclusion of her in his book.
3. Defamation Law in Canada
Defamation is an old legal concept that finds its roots in British common law, which serves as the basis for most of the former British colonies, including the U.S. and Canada. The basic definition of defamation is a false statement of material fact about the plaintiff published to another party causing damages to plaintiff’s reputation.
Defamation law in Canada is different than defamation law in the U.S. In the U.S., truth is an absolute defense to defamation whereas in Canada, there are situations where a person can still be held liable for harm caused by a public revelation of a private truth. Personal opinion tends to enjoy broad protections under the 1st Amendment in public forums and for matters of public interest. Often the U.S. cacophony of disparate voices enabled by the 1st Amendment is described as a competition of ideas. Not so in Canada. Canada is considered to have one of the more strict and arguably outdated approaches to defamation among the modern democratic legal systems. A defendant may be liable for defamation damages in Canada even if her statement about the plaintiff is true in certain situations, as long as the statement causes enough harm to the plaintiff’s reputation in balance. Canada does not have a 1st Amendment like the U.S. and has rejected the U.S. standard in New York Times v. Sullivan, 376 U.S. 254., which used the 1st Amendment as the legal foundation to make matters of public interest and public figures less vulnerable to defamation claims, as well as increasing the burden on a plaintiff to prove malicious intent to defame. Because Canada does not follow the U.S. standard, any defamation judgment against an American plaintiff must be re-litigated in the U.S. under the U.S. defamation standards in order to enforce the judgment. British courts are attempting to move in the direction of the U.S. standard to avoid this re-litigation issue. Currently, Canada and U.K. have a reciprocal enforcement agreement for civil and criminal judgments. Wikipedia, Canadian Defamation law, https://en.wikipedia.org/wiki/Canadian_defamation_law (October 16, 2020, 12:31PM).
Canada is also attempting to reform their defamation laws, but rather than through judicial precedent as is the case in U.S. courts under New York Times v. Sullivan, 376 U.S. 254., Canada is attempting reform through legislation known as the “anti-SLAPP” laws. SLAPP stands for Strategic Lawsuits Against Public Participation. Ontario, where this lawsuit is filed and will be litigated, has its own set of anti-SLAPP laws. Courts of Justice Act, R.S.O. 1990, c. C.43, 137.1–137.5.
The official name of the Ontario anti-SLAPP law is “Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings)”. The purpose of the Ontario statute is to encourage individuals to express themselves on matters of public interest; to promote broad participation in debates on matters of public interest; to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. Id.
Normally in a Canadian defamation case, after the statement of claim is filed and the statement of defence is provided, if no settlement agreement is reached, then the suit would proceed to discovery. Discovery is the part of the litigation process where the two adversaries collect facts and evidence that will be used if they reach trial. Normally in a Canadian defamation claim, the burden of proof would fall on the defendant. The defendant must prove she did not defame the plaintiff. Overview of a civil action, Ontario Ministry of the Attorney General (October 15, 2020, 10:23AM), https://www.attorneygeneral.jus.gov.on.ca/english/courts/civil/suing_and_being_sued_7.php/.
However, the anti-SLAPP laws provides a defendant with the opportunity to change the course of the litigation process if she can satisfy a two part test when she files an anti-SLAPP motion. In particular, the defendant must show that the lawsuit arises from expression that relates to a matter of public interest. Expression is defined in the act as “any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.” Courts of Justice Act, R.S.O. 1990, c. C.43, 137.1–137.5.
Once the defendant files the anti-SLAPP motion, the litigation process changes significantly for the plaintiff. The key change is that the burden of proof shifts from the defendant to the plaintiff at a stage in the process where this shift would not normally occur in a Canadian defamation suit. The other element of change is in timing. The Ontario court guarantees a hearing within 60 days of the filing of the motion. Plaintiff must now be in position to prove he will probably win his defamation claim before substantial discovery has been conducted, in order to proceed further with the lawsuit. Id.
To prove that he will probably win his defamation claim at trial, the plaintiff must satisfy a three part test at the motion hearing. First, that the proceeding has substantial merit; second, the defendant has no valid defence; and finally, the balance of harms between the public interest and the private plaintiff, favors the plaintiff. Id.
If the plaintiff cannot satisfy the three part test, then the suit is dismissed and defendant’s costs are awarded against plaintiff. If the plaintiff satisfies the three part test, then the defamation suit proceeds as normal. Unless the defendant makes the anti-SLAPP motion in bad faith, the court will likely not award the plaintiff costs for defending the motion even if he wins. Id.
Recent Supreme Court of Canada Ruling Clarifying anti-SLAPP Definitions
Not all of the terms in the Ontario statue are clearly defined, and as such two lawsuits from Ontario recently went to the Supreme Court of Canada (SCC), 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22. “Pointes”, and Bent v. Platnick, 2020 SCC 23., “Platnick”. On September 10, 2020, the SCC released decisions on both Ontario lawsuits. Iris Fischer, Kaley Pulfer, Justin Manoryk, Pointed Exchange: SCC Clarifies Ontario’s Anti-SLAPP Test, Splits Over its Application, Lexology (Oct. 14, 2020, 9:06PM), https://www.lexology.com/library/detail.aspx?g=2fb610a2-c4be-42d2-bba3-c1002e4c349e. Pointes and Platnick are the current judicial precedent in Canada on the interpretation of anti-SLAPP laws.
Defendant’s Two Part Test
As explained above, to earn the anti-SLAPP hearing, the defendant must show the lawsuit arises from expression that relates to a matter of public interest. Both expression and a matter of public interest remain broadly defined. Id.
Plaintiff’s Three Part Test
At the anti-SLAPP hearing, the plaintiff must now satisfy a three part test to proceed with the lawsuit. He must show he has grounds to believe first, that the proceeding has substantial merit and second, the defendant has no valid defence. And finally, the plaintiff must show that the public has more interest in the harm he suffered than in the harm to the public conversation that would occur if the damages are awarded for the expression. Courts of Justice Act, R.S.O. 1990, c. C.43, 137.1(4).
The SCC ruling clarified several questions around the plaintiff’s three part test, including the Merit-Based Hurdle burden of proof as well as how to understand the balance of harm test.
Merit-Based Hurdle for Plaintiff’s Three Part Test
The Court wrote that the first and second prong of the test must be satisfied by the Merit-Based Hurdle burden of proof. Iris Fischer, Kaley Pulfer, Justin Manoryk, Pointed Exchange: SCC Clarifies Ontario’s Anti-SLAPP Test, Splits Over its Application, Lexology (Oct. 14, 2020, 9:06PM), https://www.lexology.com/library/detail.aspx?g=2fb610a2-c4be-42d2-bba3-c1002e4c349e.
There are two points to understand about the meaning of the Merit-Based Hurdle. First in general, how proof works. Every argument in every court of law is about how right one adversary is compared to the other. Depending on the type of law and the decision being made, courts apply different requirements of “being right”. The most obvious example is in criminal law, where the government must be 99% correct about the crimes they are charging in order to win conviction. In civil courts, where defamation cases are heard, the proof required to win is less than 99%. There are many different terms and standards applied, and the Canadian Supreme Court clarifies that “grounds to believe” is:
“more demanding than the standard applicable on a motion to strike, but less stringent than the ‘likely to succeed’ standard, the strong prima face case threshold or the test for summary judgment. The Court held that to have ‘substantial merit’ the proceeding must ‘have a real prospect of success … that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff.’ The claim must be legally tenable and supported by evidence that is reasonably capable of belief, and this must be the case on a subjective determination by the motion judge.” Id.
For the sake of understanding what this means, it helps to put a number ratio to the word definitions (which actual courts never do). Civil judgments require less than criminal judgments. Here, the SCC says that because discovery has not yet been conducted, less proof is needed than in civil judgments. If criminal courts require 99% rightness, civil court judgments less, and the anti-SLAPP hearing even less, let’s assume that to win a particular test among the tests that will be considered, one side must be more right than the other, 60% right compared to 40% right. 60% represents evidence that tends to weigh more in favour of the party making the 60% argument. This assumption will be used in the analysis below to understand the burden of proof for the Merit-Based Hurdle.
Plaintiff Test One: The Proceeding Has Substantial Merit
Here the plaintiff must argue his claim has substantial merit for each element of his defamation claim and damages. He must show the court he is at least 60% right in his claim to satisfy the Merit-Based Hurdle. He must prove his claimed reputation. He must prove that defendant’s tone was not reasonable within the community where his claimed reputation is held. He also must provide proof of his claimed damages.
Plaintiff Test Two: Defendant Has No Valid Defence
Here, the plaintiff must be 60% right that the defendant does not have a valid defence. Defenses to defamation under Canadian law includes different types of qualified privilege and the right of fair comment. “Once the defendant has put defences into play, the plaintiff must satisfy the court that the defences are not legally tenable or supported by evidence that is reasonably capable of belief, and therefore have no real prospect of success. If the plaintiff fails to discharge this burden with respect to any one of the defences raised, the underlying claim should be dismissed.” Id. Plaintiff must be 60% correct that the defendant’s defences are not reasonably capable of belief.
Plaintiff Test Three: Public Interest Balancing Test
Finally, the Public Interest Balancing Test is where the main tension lies in the plaintiff’s three part test. Courts must consider the balance between a public conversation on matters of public interest against an individual’s right not to suffer reputational harm. “The burden is on the plaintiff to show on a balance of probabilities that [he] ‘likely has suffered or will suffer harm,’ that such harm is a result of the expression at issue, and that the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation.” Id.
4. What Happens From Here?
We don’t know what Remski or Priest will choose to do from here. If the parties do not settle and Priest does not apologize to Remski and pay the claimed damages, the case will continue once Ontario courts reopen. The normal step would be for discovery to commence. However, Priest could file an anti-SLAPP motion at any point in the process.
What happens if Priest files an anti-SLAPP motion? Priest has to satisfy a two part test. First, she must show that she made an expression. A Facebook post most likely qualifies as an expression. Second, she must show the expression related to a matter of public interest. Priest can probably also satisfy this test. The Facebook post gathered public attention on an issue that both Remski and Priest were otherwise publicly engaged, Remski’s book that included Priest. Remski and his publisher re-distributed Priest’s post and invited public comment. Revelations of abuse in yoga is an international public conversation. Most likely, if Priest files an anti-SLAPP motion, the court will grant a hearing based on satisfaction of the defendant’s two part test.
If the court grants an anti-SLAPP hearing, will Remski be able to satisfy his own three part test to keep his defamation claim going? Remski will have to prove he is 60% right that his claim has substantial merit and Priest has no defences, and that the balance of the public interests favors his reputational harm over the public conversation on yoga abuse.
Comparing Remski to Pointes and Platnick
Pointes and Platnick are the controlling precedent in Canada for anti-SLAPP motions. It’s important to note the similarities and differences in these cases to Remski’s case to understand how the court will rule on the three part test.
Pointes concerned a breach of contract claim that was intended to silence a public hearing. The plaintiff was professionally connected to the matter of the public hearing. The SCC ruled in favor of the defendant based on the public interest test because the Court found that the public had low interest in the breach of contract claim compared to high interest in truthful and transparent public hearings. Remski’s claim is similar to the plaintiff in Pointes in that he is trying to stop someone from speaking about him in a public forum where they otherwise have the right to participate. Priest’s right to participate arises from Remski’s inclusion of her in his book. The court will look for this kind of use of the legal system to silence public conversation, whether through a breach of contract claim or a defamation claim. Remski’s claim is different from Pointes due to the level of rhetoric that is reasonable in the public yoga abuse conversation. The level of acceptable speech at a public hearing in Canada is probably drastically different from the level of acceptable speech in the international yoga abuse conversation, which the court will consider when examining the larger picture surrounding Remksi’s claim.
Platnick was a defamation claim concerning truthful revelations about a doctor who altered court evidence that was first discussed on a confidential attorneys’ list serv and later leaked to the media. The SCC ruled in favor this time for the plaintiff, also based on the public interest test like in Pointes, because the revelation ruined his career which had been successful and fruitful before revelation of his behavior. Unlike the doctor in Platnick, Remski by his own admission regularly participates in the public conversation around yoga abuse, including his own self reflections and experiences as are detailed in Priest’s defence, cited from Remski’s public material. The doctor in Platnick was not engaged in a public conversation around his work. Besides altering documents, he appeared to otherwise observe the privacy requirements of the medical field and worked with lawyers who also followed their own confidentiality laws. Remski is bound by unclear professional ethics in comparison to those required of doctors and lawyers. Remski seeks to reveal material as the basis of his career, unlike the doctors and lawyers in Platnick.
Remski’s First Test
Concerning the first test of substantial merit, Remski must establish his claimed reputation and the reasonable tone of the public conversation around abuse in yoga from external sources and authorities in order to show his reputation was harmed by Priest. For instance, Remski describes himself as a heart center skeptic and so will have to explain this claim to the court. What is a heart centered skeptic? Who decides who is a heart centered skeptic and who is not? What external authorities and certifications are connected with the ethics, rules and requirements of a heart centered skeptic? Remski makes several other claims about his reputation and authority that he will have to explain and justify to the court with external evidence.
Priest claims in her defence that Remski is surrounded by professional controversy and provides a lengthy list of evidence to support this claim, some of it coming from Remski’s own website. Remski will not only have to argue against this proof in support of his own claim of reputation, he will have to prove that Priest’s evidence is wrong.
The final question for the first test is how Remski will prove his claim of $100,000 in compensatory damages and $40,000 in punitive damages. Remski must measure the worth of his reputation through financial disclosures and future projections based on previous success. Remski also has to explain how Priest’s Facebook post caused his claimed compensatory losses. Remski claims that 190 people commented on Priest’s Facebook post and 29 people shared the post, which is 219 interactions. In her defence, Priest claims Remski’s contributory negligence works against his damage claim because Remski and his publisher re-published and distributed Priest’s Facebook post, asking for public notice. Remski will have to explain the number of contacts on social media and the internet that both he and his publisher have and why their re-distribution should not impact his damages claim.
Finally, Remski will have to put to proof his claim for $40,000 in punitive damages, which would be granted for malicious intent by Priest. Remski is already on shaky ground for his compensatory damages due to contributory negligence, making an award of punitive damages less likely. Additionally, due to the level of rhetoric that is reasonable in the international public conversation on yoga abuse, it will be difficult to prove that Priest’s Facebook post was not only compensable but so intentionally malicious that she deserves to be punished for harming Remski.
Remksi’s Second Test
Concerning defences, Priest claims defences of fair comment and qualified duty and interest privilege related to the public nature of the yoga conservation. Remski will have to be 60% right that Priest has no justifiable basis for her defences.
Here again, Remski will most likely not be able to overcome Priest’s defences to the degree required to move forward with his suit. What is important here is how the burden of proof affects the litigation process. Because Priest’s defences are based on public interest generated by Remski’s professional work, there is at least a chance her defences would succeed at the actual defamation trial. Remski has to show there is no reasonable chance her defences will succeed in order to be 60% right at the anti-SLAPP hearing. Here, we find Remski’s Achilles heel. Because of his position in the public conversation and use of Priest in his book which is also public, he cannot argue that Priest has no reasonable chance of success on her defences of fair comment made in good faith on a public matter. Priest made a comment on a public matter. Whether or not it was fair or made in good faith are up for debate, as discussed above. The point is that Priest has a foot in the door for her defence because Remski brought her into the public conversation to start. He cannot not push her out of the position that he himself created and say she has no reasonable chance of success.
Remski’s Third Test
Finally, Remski must convince the court that his interest in being protected from reputational harm is greater than the public’s interest in the public conversation about abuse in yoga. Again as argued above, Remski will have to work directly against himself to convince the court he deserves reputational protection. By his own admission, Remski’s career is based on a public conversation, one in which his writing has dealt with controversial and taboo topics in the yoga community. Remski will have to convince the court that while in general a public conversation around controversial and taboo topics is permissible and deserves protection, that not only should the court draw the line with statements like Priest’s, but that Remski deserves protection within the fraught public conversation he encourages as a profession. Remski’s position is unlike the position of the plaintiff in either Pointes or Platnick, neither of whom made a career on public controversy within their professional fields. Remski’s position is similar to the plaintiff in Pointes because he seeks to silence a public conversation through litigation in which he is a participant otherwise.
Based on the current available information, Remski will not succeed in his defamation claim against Priest, if she files an anti-SLAPP motion. Remski will be unable to prove the substantial merits of his case due to his own participation in a fraught public conversation. He most likely will not convince the court to favor his reputational harm when considering the broader public interest in a public conversation that he otherwise encourages and pulled Priest into by including her in his book. And he will not convince the court that Priest has no reasonable chance of succeeding on her defences. Because Remski drew Priest into the public forum by including her in his book, he created for her at least a chance to defend her comments as fair comment made in good faith. This subtle procedural and legal moment is the fatal flaw of Remski’s case. All Priest has to show is that she at least has a reasonable chance of proving her defence of fair comment made in good faith on a public matter. Because Remski brought her into the public conversation by including her in his book, he cannot overcome this defence to the degree required to win the anti-SLAPP hearing. If Remski fails at the anti-SLAPP hearing, he will have to pay Priest’s legal costs for the entire litigation.
On review of international defamation law and the attached links in the pleadings, Remski writes much like an American citizen, who enjoys broad 1st Amendment and freedom of expression protections. Remski participates in a global conversation where such freedom of speech is considered normal, regardless of the jurisdiction. The Canadian court will most likely not look kindly on Remski’s broad use of freedom of speech as a professional platform as he seeks to stifle public comment on this global conversation that he otherwise encourages and brought Priest into, despite her requests otherwise.