The recent Ontario decision in Pichler v. Meadows 2010 ONSC 1863 (CanLII), ["Pichler"] provides guidance on the test for prohibitive injunctions in defamation actions. It also offers an important reminder that an undertaking as to damages is mandatory and “clean hands” are not just about personal hygiene.
The plaintiff, Pichler, is the president of an Ontario internet media consulting firm and owner of a transexuality website. Pichler sought an interim and interlocutory injunction restraining the defendant, Meadows, an owner and operator of an escort service and sexual and gender counselling websites—from publishing or republishing five articles published on her websites. Pichler alleged that the articles were defamatory, causing harm to his business income which harm would continue if no injunction were granted.
In 2005, Meadows and four others [the "Beidas Plaintiffs"] sued Pichler for damages for defamation and moved for injunctive relief in respect of Pichler’s publication of certain articles on his website. On August 22, 2006, Himel J. ordered that Pichler was prohibited from publishing any materials which might tend to identify the Beidas Plaintiffs.
By judgment dated May 29, 2008, the Divisional court set aside Himel J.’s order: Beidas v. Pichler 2008 CanLII 26255 (ON S.C.D.C.)
, (2008), 2008 Carswell Ont. 3183, 294 D.L.R. (4th
) 310, and 238 O.A.C. 103. The Beidas action was dismissed for delay a year later.
Subsequently, Pichler learned that Meadows was publishing articles describing him as:
“ ..a ‘mentally ill transvestite man who attacks transsexual women, here in Toronto’ and presents statements about psychiatric reports said to have been given about Pichler, including details about criminal charges that have been laid against him in the past. The publications state that the court system has failed to stop him from causing harm and, in consequence, Meadows is taking action (presumably by way of these publications) to expose him.”
Justice Spence was inclined to agree with Pichler that the foregoing statements were defamatory; including the statement that he had a criminal record which Pichler asserted was “false because all of the criminal charges that have been laid against him have been disposed of without any conviction against him.” (at para. 14)
Spence, J. cited with approval the reasons of Murray, J. in the Beidas decision setting out the applicable law for an application for an interlocutory injunction in a defamation claim as follows:
“The Stringent Rule for Interlocutory Relief in a Defamation Case
 Murray J. said as follows at paragraphs 14 to 16 of Beidas:
 First, it is appropriate to consider the general principles applicable in a case such as the one before this Court. In Rapp et al. v. McClelland & Stewart Ltd. et al.
(1982), 34 O.R. (2d) 452, Griffiths J. described generally the requirements for an injunction in a case of defamation at p. 455:
In this jurisdiction, unless both parties are prepared to waive the requirement, a libel action must be tried by a jury and while the presiding trial judge has the duty to determine whether in law the words complained of are capable of being defamatory of the plaintiff it is the exclusive function of the jury to determine whether they are, under all the circumstances, in fact defamatory. The words to be defamatory must be false and the jury must be satisfied that the words in their natural or innuendo meaning tend to lower the plaintiff in the estimate of right-thinking members of society generally or cause her to be shunned or avoided or exposed to hatred, contempt or ridicule.
As the learned author Gatley on Libel and Slander, 7th ed. (1974), observes at pp. 23-24:
It will be seen that it is not possible to say that any particular imputation is defamatory, regardless of the circumstances of its publication. Whether or not it is so will vary with time, place and the state of public opinion. In any case, whether or not any imputation is defamatory is not a matter of law, but a matter of fact for the jury, and no other jury will be bound to reach the same decision. It is similarly a matter of fact whether any words convey the defamatory imputation alleged, and this may depend to a great extent on the circumstances and context of a particular publication.
In the light of this sovereign jurisdiction of the jury to determine the issue of defamation a fairly stringent rule was developed early in the history of the law concerning the granting of interim injunctions restraining the publication of alleged defamatory material until the trial of the action. In the decision of Canada Metal Co. Ltd., v. Canadian Broadcasting Corp.
(1975), 7 O.R. (2d) 261, 55 D.L.R. (3d) 42, Stark J., delivering the reasons of the Divisional Court said at pp. 261-62:
The granting of injunctions to restrain publication of alleged libels is an exceptional remedy granted only in the rarest and clearest of cases. That reluctance to restrict in advance publication of words spoken or written is founded, of course, on the necessity under our democratic system to protect free speech and unimpeded expression of opinion. The exceptions to this rule are extremely rare.
For at least one hundred years and certainly since the leading cases of William Coulson & Sons v. James Coulson & Co.
(1887), 3 T.L.R. 846, and Collard v. Marshall
 1 Ch. 571, and perhaps above all, in the leading case of Bonnard v. Perryman
 2 Ch. 269, it has been universally and consistently held by British and Canadian Courts that such an interim injunction will never be granted where the defendant expresses his intention to justify unless the words in question are so clearly defamatory and so obviously impossible 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 a perverse finding on appeal.
The guiding principle then is, that the injunction should only issue where the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal. To put it another way where it is impossible to say that a reasonable jury must inevitably find the words defamatory the injunction should not issue.
In this case, I am not prepared to predict at this stage that a jury will, inevitably, find the words here complained of defamatory of the plaintiff. The English Court of Appeal has recently held in Herbage v. Times Newspapers
, May 1981 (not yet reported) that the decision of the House of Lords in American Cyanamid Co. v. Ethicon Ltd.
 A.C. 396, has not affected the well established principle in cases of libel that an interim injunction should not be granted unless the jury would inevitably come to the conclusion that the words were defamatory.
In my view as well the principle should be preserved in libel cases that except in a case of manifest libel the interim injunction should not issue where the wrong suffered by the plaintiff may be adequately compensated for in damages. There is early authority for this in the decision of Monson v. Tussauds Ltd.,  1 Q.B. 671.
 In Rosemond Estates Inc. et al. v. Levy et al.
65 O.R. (3d) 79,  O.J. No. 1748, Spence J. stated: “that the court should be particularly cautious about granting an injunction where the issue concerns defamation is clear from the decision in Rapp v. McClelland & Stewart Ltd. reflex
, (1981), 34 O.R. (2d) 452, 128 D.L.R. (3d) 650 (S.C.) per Griffiths J. at p. 455 O.R.
 In his treatise Injunctions and Specific Performance (2nd ed. 1992 (loose-leaf)), Robert Sharpe says the following, 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 the press 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 words are 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.”
Adopting the Divisional Court’s reasoning in the Beidas
decision, Spence, J. applied the second branch of the three-part test for interlocutory relief established in American Cyanamid
and approved by the Supreme Court of Canada in RJR-Macdonald Inc .v Canada (Attorney-General)
, 1994 CanLII 117 (S.C.C.)
,  1 S.C.R. 311; namely: irreparable harm.
Based upon the foregoing, the first branch (serious issue to be tried) appears to have been a fait accompli,
while the third branch (balance of convenience) was inapplicable. Additionally, Rule 40.03 of the Rules of Civil Procedure requires the plaintiff to give an undertaking as to damages. Finally, in respect of defamation actions, the equitable “clean hands” doctrine also factors into the analysis: citing Murray, J. in Beidas
who cites Perell, J. in Sherwood Dash Inc. v. Woodview Products Inc.
 O.J. No. 5298 (Ont. S.C..J.).
In Spence, J.’s view, “it would not be proper for the Court on this motion to make findings that certain of these factual assertions are false and defamatory.” (at para. 31). Nevertheless,the learned justice held that:
“ [w]ith respect to the statements that are entirely or principally comments rather than factual assertions, whether any of such comments constitutes defamation would depend in part on whether the comments are made with malice. The plaintiff submits that they are malicious and gives his reasons for that position. It appears from the defendant’s submissions that she has published these articles because the plaintiff will not agree not to continue to publish personal information about her and other individual transsexuals.
 There are at least two important issues here: (1) whether that apparent motive of the defendant is her real and her only motive or not; and (2) whether her motive is malicious.
 These issues involve matters that should be determined by the trier of fact rather than on this motion.
 It is well-settled law that for harm to be “irreparable” for the purpose of the interlocutory injunction test, it must be harm of a type that is not readily determinable and compensable in monetary terms. It appears that the plaintiff is still carrying on business and that to the extent that the business is vulnerable it may well be partly (which could therefore be substantially) for unrelated reasons.
 For these reasons, the plaintiff has not established that, without the injunction, his business will likely suffer irreparable harm.”
Pilcher also omitted providing his undertaking as to damages as required by Rule 40.03.
Finally, Justice Spence concluded that the plaintiff’s hands required some scrubbing:
“ The defendant’s affidavit includes materials reflecting a few instances of conduct, including but not limited to the publication of the names and other personal information of individual transsexuals, which raise a question as to what the motive for these actions could be. These instances are apparent on a review of the affidavit. That this question is raised does not by itself allow a conclusion that the plaintiff is here without clean hands. However, one instance in particular stands out as both raising questions and prompting a view, and it requires comment.
 The plaintiff published on his website in late 2001 an article entitled “Usama bin Laden Seen in Toronto, Ontario with Local Escort” with the legend “(this article is for entertainment purposes only)”. Below, there appear two photographs, one of bin Laden and one of the defendant. The text below the photographs begins with the following two paragraphs:
Toronto, Ontario, Canada ‑ In a bizaare [sic] turn of events, Usama [sic] bin Laden, the world’s most wanted man, was seen in Toronto, Ontario, Canada’s largest city, as recently as last Saturday, December 15. A spokesperson from the pentagon said that the news out of Toronto confirms reports from the Christian Monitor that Usama [sic] bin Laden had indeed slipped into Pakistan more than ten days ago.
Credible sources claim that Usama [sic] was in fact in the company of Mysti Rae Meadows, a local transsexual escort, at the Reverb club on Queen Street East. The Reverb club is a popular haunt for fetishists.
 It is hard to see how this article, as incredible as it obviously is, could be intended to be other than a public derogatory comment about the defendant.
 The plaintiff said of the article only that it was published ten years ago and is not relevant. The plaintiff offers no reason as to why he published the article.
 The reasonable inference must be that the publication of the article as gratuitous and malicious, which is the same complaint that the plaintiff now makes about the defendant’s publications. It cannot be said that the plaintiff comes to this Court on this motion with clean hands.
The moral of the story: if you want an injunction, you must demonstrate irreparable harm not compensable in damages and also provide an undertaking as to damages. Oh, and don’t forget, anything you say on the internet can be used against you in a court of law.