Marcus McCann

The appellants, Caruk-Hall Construction Inc., James Caruk, and Daniel Hall, appealed convictions for acting as an unregistered builder under the Ontario New Home Warranties Plan Act, failing to notify the Warranty Corporation, and failing to pay prescribed fees.

They also challenged the dismissal of their s. 11(b) Charter application alleging unreasonable delay.

The Ontario Court of Justice dismissed the s. 11(b) application, finding the net delay was below the 18-month Jordan ceiling after deducting defence-caused delay and COVID-19 exceptional circumstances.

The court upheld the convictions, finding the appellants were responsible as builders under the Act based on control and responsibility for the home construction.

The sentencing fines were also upheld as appropriate and not excessive given the market context and deterrence objectives.

This is a consolidated appeal from anti-SLAPP motions dismissing defamation actions.

The actions arose from tweets and an email suggesting the appellant's medical clinic discriminated against the LGBTQ community.

The motion judge dismissed both actions, finding the communications were fair comment.

The Court of Appeal found the motion judge erred regarding Evans-Bitten's fair comment defence, concluding there were grounds to believe malice would defeat it.

After conducting the public interest weighing, the Court found the public interest in allowing the appellant's action against Evans-Bitten to proceed outweighed the public interest in protecting her expression, given the substantial harm and low public interest in protecting gratuitous personal attacks.

However, the Court upheld the dismissal of the action against Kirkconnell and Smith, finding no grounds to believe their fair comment defence would fail due to recklessness.

This decision addresses a request to coordinate two appeals arising from a single lower court decision that dismissed defamation actions under anti-SLAPP legislation.

The appellants sought separate hearings, while the respondents requested the appeals be heard together.

The appeal management judge ordered the appeals to be heard concurrently, emphasizing judicial economy and efficiency, and finding no principled reason to hear them separately despite the appellants' arguments regarding factual and legal dissimilarities between the two cases.

The defendants sought costs of $41,082.45 on a full indemnity basis after successfully dismissing the plaintiffs' defamation action as a SLAPP suit.

The plaintiffs agreed the amount was reasonable but argued it should be reduced by approximately $14,000, which the defendants allegedly raised through a GoFundMe campaign, citing the principle of indemnity.

The court rejected this argument, holding that costs inquiries are restricted to examining the lawyer's bill, not the successful party's means of payment.

The court awarded the defendants $41,000 in costs.

The plaintiffs brought two defamation actions against the defendants arising from tweets and emails that characterized the plaintiffs' own tweets as homophobic and transphobic.

The defendants moved to dismiss the actions under the anti-SLAPP provisions of section 137.1 of the Courts of Justice Act.

The court found that the expressions related to matters of public interest and that, while the defamation claim had some merit, the defendants had a valid defence of fair comment given the highly politicized and hyperbolic nature of Twitter.

The actions were dismissed as strategic litigation against public participation.