Court of Appeal for Ontario

Date: December 31, 2019 Docket: C66080

Judges: Lauwers, Fairburn and Zarnett JJ.A.

Between

The Ontario College of Teachers Plaintiff (Responding Party/Respondent)

and

Ahmed Bouragba Defendant (Moving Party/Appellant)

Counsel

Ahmed Bouragba, acting in person

Christine Lonsdale and Charlotte-Anne Malischewski, for the respondent

Heard: September 27, 2019

On appeal from the order of Justice Andra Pollak of the Superior Court of Justice, dated September 26, 2018, and from the costs decision, with reasons reported at 2018 ONSC 6481.

Lauwers J.A.:

I. Overview

[1] Mr. Bouragba brought a motion to dismiss the defamation lawsuit brought against him by the Ontario College of Teachers, under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43. This is a relatively new provision designed to permit judicial scrutiny of lawsuits allegedly brought to silence or financially punish critics who have spoken out on matters of public interest, known as Strategic Lawsuits Against Public Participation, or SLAPP. The seminal case on s. 137.1 is 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, leave to appeal granted and appeal heard and reserved November 12, 2019, [2018] S.C.C.A. No. 467. As Doherty J.A. observed in Pointes, at para. 3: "Defamation lawsuits, perhaps because of the relatively light burden the case law places on the plaintiff, have proved to be an ideal vehicle for SLAPPs." Section 137.1 is a carefully designed approach to discerning whether a lawsuit is improper as a SLAPP or is validly brought.

[2] The motion judge denied Mr. Bouragba's motion to dismiss the College's defamation action on the ground that it was a SLAPP, finding that he had not discharged his burden of proving that the defamation proceeding arose from an expression that relates to a matter of public interest. Mr. Bouragba appeals.

[3] The College is the self-governing regulatory body for teachers in Ontario. Mr. Bouragba is a member of the College and was a member of the College's Council from July 1, 2012 to October 2, 2014, when he resigned.

[4] Mr. Bouragba sent several communications to past and present members of the Council, the Attorney General of Ontario, and the Minister of Education. In some of the communications he advocated for a public inquiry into a wide range of alleged misconduct on the part of the College and people affiliated with it.

[5] The College sued, alleging that the communications were defamatory, because they allege that the College, its Council and its leadership: are dishonest in the performance of their mandate; fabricate complaints; collude with their independent legal counsel and school boards; take action against members of the profession and Council for improper reasons; assemble biased panels; harass and discriminate against children, parents and elected Council members; and perform their duties in bad faith.

[6] There is a history between the appellant and the College that forms part of the context. First, the College processed a complaint about the appellant made by Diane Lamoureux, then the Principal of an Ottawa area school attended by Mr. Bouragba's son. The Investigation Committee declined to refer the complaint to the Discipline Committee but instead cautioned the appellant. Its decision was upheld by the Divisional Court: 2018 ONSC 6935.

[7] Second, the appellant made a complaint against three College members. The Investigation Committee declined to refer the complaint to the Discipline Committee, and its decision was upheld by the Divisional Court: 2018 ONSC 6940.

[8] Third, the appellant filed a complaint with the Human Rights Tribunal of Ontario. All but one allegation has been dismissed: 2017 HRTO 523. The hearing on the single outstanding issue was to be heard in June 2019.

[9] Fourth, the appellant sued the College and a number of parties including the College's Director of Corporate and Council Services, Richard Lewko, personally. The action has been stayed: 2016 ONSC 7798. The appellant has pursued motions to have the judge who ordered the stay recused for bias.

II. The Appellant's Position

[10] The appellant expressed frustration in his factum and in his oral argument with the motion judge's failure to engage with the arguments that he put forward. First, he argued that the College, as a public body, is not capable of initiating a defamation suit, relying on Niagara Peninsula Conservation Authority v. Smith, 2017 ONSC 6973, at paras. 11, 54.

[11] Second, the appellant noted that "the motion judge failed entirely to mention any content or a subject of my three impugned communications … [and] also failed to mention my position as a defendant." He questioned whether the motion judge had even read the impugned communications. His position, as expressed in his factum before the motion judge was this:

It is beyond question that the expressions in question relate to a matter of public interest, to wit: the governance of the College, it is a body created by the government of Ontario. Its action or inaction in its sphere of responsibility does affect the public welfare (students safety and well being).

[12] Third, the appellant pointed out that the motion judge "adopted the plaintiff's speculation by copying it and pasting it directly into her decision with no adequate analysis." This led the appellant to suggest that the motion judge was not impartial.

III. The Governing Principles Concerning SLAPP Litigation

[13] This court addressed s. 137.1 of the Courts of Justice Act in a group of linked decisions, the heart of which is 1704604 Ontario Ltd. v. Pointes Protection Association. The associated decisions were Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, 426 D.L.R. (4th) 1; Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60, leave to appeal granted and appeal heard and reserved November 12, 2019, [2018] S.C.C.A. No. 466; Veneruzzo v. Storey, 2018 ONCA 688, 23 C.P.C. (8th) 352; Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, 143 O.R. (3d) 54; and Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690, 428 D.L.R. (4th) 568.

[14] In Pointes, Doherty J.A. noted that the scheme in s. 137.1 of the Courts of Justice Act has three features or steps. The first is that for the section to be engaged, the expression must relate to a matter of public interest under s. 137.1(3), which provides:

(3) [A] judge shall, subject to subsection 4, dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

[15] The second feature is the "merits-based hurdle." It is set out in s. 137.1(4)(a), which provides:

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

[16] The third feature is the "public interest hurdle." It is found in s. 137.1(4)(b), which provides:

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party's expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[17] The first step in the required analysis is to identify the relevant "public interest," if any. This requirement is intended to be based on a "broad reading" of the meaning of "public interest" so that public discourse on matters of public interest is not unduly discouraged: Pointes, at para. 57. Doherty J.A. did not identity an exhaustive list of topics that fall under the rubric of public interest but noted that Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 provided considerable assistance.

[18] Of significance to this case, Doherty J.A. noted, at para. 47, that s. 137.1 "does not fix on the plaintiff's purpose or motive in bringing the claim as the determining factor". Regarding the concept of public interest, he noted, at para. 65:

In summary, the concept of "public interest" as it is used in s. 137.1(3) is a broad one that does not take into account the merits or manner of the expression, nor the motive of the author. The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication. An expression may relate to more than one matter. If one of those matters is a "matter of public interest", the defendant will have met its onus under s. 137.1(3). [Emphasis added.]

[19] Doherty J.A. returned to the issue of motive at para. 94, when he contrasted the assessment of the public interest in s. 137.1(3) with the "public interest hurdle" in s. 137.1(4)(b), which is the third step in the analysis. He said, at para. 94: "Unlike the 'public interest' inquiry in s. 137.1(3), in which the quality of the expression or the motivation of the speaker are irrelevant …, both play an important role in measuring the extent to which there is a public interest in protecting that expression." He added, at para. 95:

In addition to the quality of the expression and the defendant's motivation for making the expression, the consequences of the plaintiff's claim will figure into the weight to be given to the public interest in protecting that expression. Evidence of actual "libel chill" generated by the plaintiff's claim can be an important factor in the public interest evaluation required under s. 137.1(4)(b): Able Translations Ltd., at para. 102. [Emphasis added.]

[20] Doherty J.A. noted, at para. 96, in relation to the third or balancing step: "Because the balancing of the competing public interests will often be determinative of the outcome of the s. 137.1 motion, and because the analysis contains an element of subjectivity, it is crucial that motion judges provide full reasons for their s. 137.1(4)(b) evaluations."

IV. The Motion Judge's Reasons

[21] The motion judge's reasons were sparse, not full. She noted, at paras. 23, 25:

The College's position is that Mr. Bouragba's communications are related to his personal grievances with the College. They were personal attacks on individuals within the College.

The College submits that although it has a public interest mandate, not all comments made about the College are matters of public interest. Mr. Bouragba's emails are solely related to:

(a) "his dissatisfaction with a decision of the Investigation Committee which cautioned him.

(b) his dissatisfaction with three decisions of the Investigation Committee which declined to refer three of his complaints against members of the College involved in his son's education.

(c) his personal belief that the College conspired with Paul Marshall to cause teachers and members of the Board to take steps to remove his son from school in Ottawa.

(d) his personal belief that the College fabricates complaints in order to retaliate against him and other former members of the College council;

(e) his personal belief that staff lied because they were mistaken about the date on which Paul Marshall first commenced providing legal services as independent legal counsel to panels."

[22] The motion judge concluded, at para. 28:

Applying the test in Grant v. Torstar Corp., 2009 SCC 61 (S.C.C.), I find that Mr. Bouragba's private disputes with the College are not matters inviting public attention, affecting the welfare of citizens, or which are the subject of any controversy other than with Mr. Bouragba. I agree with the submissions of the College that the communications relate to private grievances. I find that Mr. Bouragba has not satisfied his burden under s. 137.1(3). It is therefore not necessary for the Court to consider the other criteria set out in s. 137.1 of the CJA.

[23] The motion judge's costs endorsement was very brief and did not describe the "detailed submissions" she considered. Nor did she refer to s. 137.1(8), which provides:

(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.

V. The Principles Applied

[24] It is surely right, as the motion judge paraphrased the College saying: "The College submits that although it has a public interest mandate, not all comments made about the College are matters of public interest." The difficulty is with her adoption of the College's argument that the appellant's emails are "solely related" to his "personal grievances" with the College. They were not.

[25] The College's statement of claim refers to three communications in particular. The first is an email to Michael Salvatori, Registrar of the College, copied to past and present members of the Council on June 4, 2015. The statement of claim does not quote the first sentence of the communication, which states: "Please find attached some documents and a request for a public inquiry to investigate the College's conduct and faith."

[26] In the email the appellant cited his own personal experience to explain his loss of confidence in the College. He went on to cite other situations in which the College misbehaved, in his opinion, which did not involve him.

[27] The second communication was a letter sent by the appellant and a colleague to the Attorney General dated June 5, 2016. The letter states:

We address this letter to you as the new Attorney General of Ontario in a request to review the investigation and discipline processes and decisions at the Ontario College of Teachers.

Despite the Report and Recommendations of the Chief Justice Patrick Lasage [sic] in 2012, there continues to be lack of transparency and accountability in the manner the College investigates complaints.

[28] The writers state:

A Public Inquiry is requested to explore the influence exercised by school boards over the investigation and discipline process and decisions made by the Investigation and Discipline Committees of the College over the last five years, as a systemic issue for which the College is not under any scrutiny, since it enjoys immunity from any oversight in Ontario.

[29] This letter to the Attorney General must be set in context, since the appellant and his colleague (whom the College did not sue) sent a follow up letter on June 30, 2016, to which they attached a brief entitled: "Reasons for a Public Inquiry into the Ontario College of Teachers". The brief was detailed and made a number of complaints. It called for a public inquiry to "examine and investigate the following issues in protecting the Public Interest," and then listed: the manner in which public appointments to the Public Interest Committee of the College and to College Council are made; the preferential treatment of school board employer complaints over complaints by the public or members of the College; and conflict of interest and other concerns, because there is no whistleblower policy. The brief ended with a list of "[l]egislative issues requiring review of the OCT Act, 1996 and its Bylaws".

[30] The third communication was an email dated July 18, 2016 inviting council members to witness a discipline hearing. The email complained that the "College falsified the teacher's complain [sic] against his vice-principal" and invited Council members to attend the hearing so that they could see how the hearing unfolded, in order to enhance "transparency according to College's mission".

[31] Although the motion judge adverted to the requirement to view the communications objectively, she did not properly apply the test. Viewed objectively, and divorced from any consideration of the merits or manner of expression and the motive of the speaker, the communications could not be reasonably said to relate solely to "private grievances". The motion judge's finding to this effect was a palpable and overriding error.

[32] The finding also appears to have been impermissibly tainted by a consideration of the appellant's motive. As noted at the outset, at the first threshold step of the analysis, in assessing whether the expression is a matter of public interest under s. 137.1(3) of the Courts of Justice Act, the court is not to consider the motivations of the allegedly defamatory speaker. Motivations do play a role in the third step relating to the "public interest hurdle". However, in this case the motion judge appears to have taken the appellant's motivations into account in concluding, at step one, that the appellant was expressing "private grievances," so that the public interest element had not been satisfied. The motion judge made the same error criticized by this court in Levant v. Day, 2019 ONCA 244, 145 O.R. (3d) 442, at paras. 11-12.

[33] Moreover, the test is meant to set a low bar, as Doherty J.A. noted in Pointes, at para. 65: "An expression may relate to more than one matter." Even so, he added: "If one of those matters is a 'matter of public interest', the defendant will have met its onus under s. 137.1(3)." In my view, the motion judge misapprehended the test under s. 137.1 as explicated in Pointes. The appellant's communications are mixed, but many elements manifestly engage the public interest. Whether those elements are sufficient to attract the protection of s. 137.1 must be assessed further at the second step, the "merits-based hurdle," and at the third step, the "public interest hurdle."

[34] However, the motion judge stopped her analysis at the first step, concluding that Mr. Bouragba did not satisfy his burden to establish that the communications relate to a matter of public interest. The motion judge did not proceed to the second and third steps of the Pointes analysis. I would be reluctant to carry forward the reasoning process required by s. 137.1 on appeal without full argument on the "merits-based hurdle" and the "public interest hurdle," and in the absence of careful analysis by a motion judge.

[35] The appellant's criticisms of the adequacy of the motion judge's reasons are understandable. Most importantly, the reasons glossed over the appellant's arguments. In R. v. Walker, [2008] 2 S.C.R. 245, 2008 SCC 34, Binnie J. stated, at para 20: "Reasons are sufficient if they are responsive to the case's live issues and the parties' key arguments." He noted that: "Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue."

[36] As McLachlin C.J. stated in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 64, "a trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues on the trial." The purposes for good reasons were set out by L'Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 39:

Reasons… foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review: …Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given (internal citations omitted).

See generally R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, per Binnie J., at para. 55; and Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158, [2011] 4 F.C.R. 425, per Stratas J.A., at para. 16. See also Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670, 98 O.R. (3d) 210.

[37] Although the motion judge's reasons inadequately addressed the appellant's arguments, there is no basis for the appellant's suggestion that the motion judge showed bias. An allegation of bias is serious and is not to be made lightly. As Robertson J.A. observed in Murray v. New Brunswick Police Commission, 389 N.B.R. (2d) 372, at para. 10, unfortunately, self-represented litigants sometimes operate, like Mr. Bouragba, "on the mistaken assumption that if he or she is unsuccessful on any ruling it is because of bias on the part of the decision-maker." This was an unwarranted allegation.

VI. Disposition

[38] I would allow the appeal, set aside the judgment and the order for costs, and remit the appellant's motion to the Superior Court to be heard by a different judge.

Released: "P.L." December 31, 2019

"P. Lauwers J.A."

"I agree. Fairburn J.A."

"I agree. B. Zarnett J.A."