COURT OF APPEAL FOR ONTARIO

CITATION: Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71

DATE: 20200203

DOCKET: C66642

Rouleau, Roberts and Harvison Young JJ.A.

BETWEEN

Labourers’ International Union of North America, Local 183, Nelson Melo, John Evans, Patrick Sheridan, Paul Giovinazzo, Carlee Horner and Ricardo Teixeira

Plaintiffs (Respondents)

and

Daniel Joseph Castellano

Defendant (Appellant)

Andrew Ostrom, for the appellant

Andrew Faith and Brookelyn Kirkham, for the respondents

Heard: November 14, 2019

On appeal from the judgment of Justice Bernadette Dietrich of the Superior Court of Justice, dated January 30, 2019, with reasons reported at 2019 ONSC 506.

By the Court:

A. OVERVIEW

[1] The appellant appeals from the motion judge’s dismissal of his motion under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (commonly referred to as “the anti-SLAPP provision”), as well as the judgment allowing the respondents’ action for defamation on a motion for summary judgment and granting injunctive relief.

[2] The respondents brought a defamation action against the appellant, a former member of the respondent union, Local 183, based on Internet posts that the appellant had made. They brought a motion for summary judgment and the appellant, by cross-motion, brought a s. 137.1 motion seeking the dismissal of the respondents’ action. The motion judge dismissed the appellant’s s. 137.1 motion, granted the respondents’ motion for summary judgment on their defamation claim against the appellant, and granted broad injunctive relief.

[3] The appellant concedes that the impugned posts were defamatory and does not appeal from the motion judge’s findings of defamation on the summary judgment motion. However, he submits that the motion judge erred in her application of the weighing test to be carried out on the s. 137.1 motion in that: first, any evidence of harm to the respondents was insufficient to outweigh the public interest in the appellant’s free expression; second, she understated the public interest value of the expressive content of the appellant’s posts.

[4] The appellant also argues that, in any event, the injunctive relief prohibiting him from making any statements about the respondents was overly broad and that there was no finding of wrongdoing or evidentiary basis to justify restraining his movements in relation to the respondents.

[5] The respondents maintain the position that the appellant should not have been permitted to bring the s. 137.1 motion after the summary judgment motion was ready to be heard, because a s. 137.1 motion is intended to serve as a screening procedure at the early stages of the litigation. They further submit that, in any case, there is no utility in appealing the motion judge’s findings on the s. 137.1 motion, as she found that the full record substantiated the appellant’s liability in defamation. The respondents submit that there was no error in the injunctive relief ordered by the motion judge; it was amply supported by the evidence and is entitled to deference by this court.

[6] For the reasons that follow, we dismiss the appeal in relation to the s. 137.1 motion but allow the appeal in part with respect to the injunctive relief ordered by the motion judge.

B. ANALYSIS

(1) Section 137.1 motion

[7] Starting with the appellant’s s. 137.1 motion, we agree with the appellant’s position that the motion judge made no error in hearing the s. 137.1 motion at the same time as the summary judgment motion. There is no statutory or other prohibition against proceeding in this manner and it was within the discretion of the motion judge to determine the order in which the motions would be addressed.

[8] Moreover, the purpose of s. 137.1 could be undercut if the bringing of a summary judgment motion precluded a defendant from bringing a s. 137.1 motion. While mindful that the efficacy of s. 137.1 could be undermined if the motion is not brought on a timely basis, there is no statutory timeline for its hearing.

[9] There should be no hard and fast rule dictating when such a motion should be brought; otherwise, the inherent discretion of a motion judge to manage the proceedings before him or her would be fettered. We do not read para. 50 of Zoutman v. Graham, 2019 ONSC 2834, appeal as of right to the Court of Appeal filed, as purporting to set down as general principle anything to the contrary.

[10] We do not, however, see any error in the motion judge’s dismissal of the appellant’s s. 137.1 motion. She correctly articulated and applied the appropriate test, as set out in para. 7 of this court’s decision in 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:

Stripped to its essentials, s. 137.1 allows a defendant to move any time after a claim is commenced for an order dismissing that claim. The defendant must demonstrate that the litigation arises out of the defendant’s expression on a matter relating to the public interest. If the defendant meets that onus, the onus shifts to the plaintiff to demonstrate that its lawsuit clears the merits-based hurdle in s. 137.1(4)(a) and the public interest hurdle in s. 137.1(4)(b).

[11] The motion judge’s weighing of the competing interests under s. 137.1 is entitled to deference on appeal, absent an identifiable legal error, or a palpable and overriding factual error: 1704604 Ontario Ltd., at para. 97.As this court noted in 1704604 Ontario Ltd., at para. 97, “[d]eference is important, as there is no reason to think that a simple recalibration of the competing interests by an appeal court will provide a more accurate assessment.”

[12] In this case, we see no error in the motion judge’s balancing of the competing interests that would permit appellate intervention.

[13] The motion judge properly considered the issue of the reputational damage to the respondents. In particular, she found that the appellant’s expression had cast “serious aspersions upon their individual characters”. The motion judge found the respondents’ general damages, as exacerbated by the appellant’s malice, to have been more than nominal, partly in the light of the positions held by the individual plaintiffs. It was not necessary for her to find monetary damages because “a serious libel does not always manifest itself in financial losses”: Montour v. Beacon Publishing Inc., 2019 ONCA 246, at para. 31, leave to appeal refused, [2019] S.C.C.A. No. 154.

[14] Similarly, the motion judge carefully considered the public interest in the expressive content of the appellant’s posts, including the videos. She did not, as the appellant submits, limit her analysis to the added commentary to the videos. She found that the posts involved gratuitous personal attacks, as well as vulgar and offensive language, and did not address any governance or leadership issues in any constructive or cogent way. She therefore found that the public interest in the appellant’s expression was low. Her conclusion that the harm suffered by the respondents outweighed the public interest in protecting the appellant’s expression was well-grounded in the evidence and free from error.

(2) Scope of injunctive relief

[15] With respect to the injunctive relief granted, the appellant submits that the injunction prohibiting any statements or posts about any of the respondents and restricting his attendance was overly broad and that the motion judge erred in failing to consider whether a more restricted injunction would have sufficed. Given the motion judge’s determination of the summary judgment motion, the appellant concedes that an injunction prohibiting defamatory posts was appropriate.

[16] The motion judge ordered the following injunctive relief in subparas. 2 to 8 of her judgment:

2. THIS COURT ORDERS that the Defendant shall take all necessary steps to remove all audio and video recordings, and written statements, of or about any and all of the Plaintiffs, from the internet or any other location in which they are accessible to the public and to destroy all such audio and video recordings and written statements within seven days of the release of these reasons.

3. THIS COURT ORDERS that immediately following those seven days, the Defendant shall provide, in writing, to counsel for the plaintiffs, proof of all steps taken to remove and destroy all such material, and shall confirm, in writing, that no such material remains publicly accessible or within his possession or control, or, to the best of his knowledge, remains in the possession or control of a third party.

4. THIS COURT ORDERS that the defendant shall not make or publish, or cause any other person to make or publish any video or audio recording, or written statement, of or about any of the Plaintiffs.

5. THIS COURT ORDERS that the Defendant shall not make, ratify, endorse, publish or re-publish, post or re-post, or cause anyone else to do so, on the internet or elsewhere, any statement about any of the Plaintiffs.

6. THIS COURT ORDERS that the Defendant shall have no further contact with any of the Plaintiffs, either directly or indirectly, but shall deal directly with the Plaintiffs’ counsel.

7. THIS COURT ORDERS that the Defendant shall not knowingly attend or be present within 500 meters of the individual Plaintiffs or their families, their personal residences, their places of employment, or any other location where he knows them to be present, unless such conduct occurs as a consequence of the defendant encountering any of the Plaintiffs on a jobsite where the Defendant is, at that time, employed to work.

8. THIS COURT ORDERS that the Defendant shall not, without the written consent of the president of Labourers’ International Union of North America, Local 183, attend within 500 meters of any office, property or training centre of Local 183 including the Local 183 offices located at 1263 Wilson Avenue #200, North York, Ontario M3M 3G3, and 560 Dodge St., P.O. Box 156, Cobourg, Ontario K9A 4K5. The defendant shall not attend at any jobsite where Local 183 holds bargaining rights unless the Defendant is employed to work at such jobsite and his attendance there is directly related to such employment.

[17] In support of the motion judge’s conclusions and order, the respondents seek to introduce fresh evidence consisting of the reasons of the trial judge in relation to the appellant’s criminal trial on unrelated charges to demonstrate the appellant’s continuing animus against the respondents. The appellant takes no position respecting the respondents’ fresh evidence motion. Since the proposed fresh evidence could not have been obtained with diligence before the hearing of the motions, is credible and potentially relevant to the scope of the injunctive relief ordered and could therefore affect the outcome of an issue on appeal, we admit it: Sengmueller v. Sengmueller (1994), 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.). However, as the evidence concerning ongoing animus is dated, we give it little weight.

(a) Publication injunction

[18] In considering whether the injunction against the publication of any commentary concerning the respondents was overly broad, we start with some well-established general principles. As this court stated in St. Lewis v. Rancourt, 2015 ONCA 513, 337 O.A.C. 15, at para. 16, leave to appeal refused, [2015] S.C.C.A. No. 407: “A broad ongoing injunction is an extraordinary remedy which should be used sparingly. However, where there has been a campaign of defamation and a likelihood that it will continue, there is authority for such an order.” The injunctive relief must be broad enough to be effective but no broader than reasonably necessary to effect compliance: Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396, 9 B.C.L.R. (5th) 299, at para. 39.

[19] While the evidentiary record supports a permanent injunction prohibiting the appellant from posting defamatory comments about the respondents, it does not justify a permanent blanket injunction enjoining him from making or publishing any comments about the respondents.

[20] The motion judge concluded that the appellant would likely continue to post defamatory comments about the respondents if not enjoined from doing so. Her finding is grounded in the evidence and entitled to deference on appeal. However, she made no finding that the appellant was incapable of discerning between defamatory comments and legitimate criticism, such that a blanket injunction was required. Nor is there any evidence from which such a conclusion could be inferred. Absent evidence that prohibiting the appellant from making non-defamatory statements is reasonably necessary to address the identified likelihood of future defamation, the injunction should not have been cast so broadly that it captured non-defamatory statements.

[21] Accordingly, we amend subparas. 4 and 5 of the judgment to specify that the appellant is enjoined from making or publishing any defamatory communications, including video or audio recordings, about the respondents, as follows:

4. THIS COURT ORDERS that the Defendant shall not make or publish, or cause any other person to make or publish, any defamatory video or audio recording, or defamatory written statement, of or about any of the Plaintiffs.

5. THIS COURT ORDERS that the Defendant shall not make, ratify, endorse, publish or re-publish, post or re-post, or cause anyone else to do so, on the Internet or elsewhere, any defamatory statement about any of the Plaintiffs.

[22] With respect to subparas. 2 and 3 of the judgment, the appellant has complied with them. However, he may need the remaining copy of the videos filed with this court for the purposes of his ongoing human rights complaint. We therefore amend those subparagraphs to permit the use of those materials in any court or administrative proceeding, as follows:

2. THIS COURT ORDERS that the Defendant shall take all necessary steps to remove all audio and video recordings, and written statements, of or about any and all of the Plaintiffs, from the Internet or any other location in which they are accessible to the public and to destroy all such audio and video recordings and written statements within seven days of the release of these reasons. The Defendant is permitted to keep and use a copy of these recordings or statements for the sole purpose of using or producing them as required in a court or administrative proceeding related to his ongoing human rights complaint, following which they are to be destroyed.

3. THIS COURT ORDERS that immediately following those seven days, the Defendant shall provide, in writing, to counsel for the Plaintiffs, proof of all steps taken to remove and destroy all such material, and shall confirm, in writing, that no such material remains publicly accessible or within his possession or control, or, to the best of his knowledge, remains in the possession or control of a third party. The Defendant is permitted to keep and use a copy of this material for the sole purpose of using or producing it as required in a court or administrative proceeding related to his ongoing human rights complaint, following which they are to be destroyed.

(b) Injunction restraining the appellant’s attendance and communications

[23] Finally, we consider the provisions of the judgment that permanently restrict the appellant’s attendance near the respondents “and their families” and prohibit any communications directly with the respondents.

[24] We reiterate that permanent injunctions constitute extraordinary relief that must be granted sparingly. A different test applies for a permanent injunction than for an interlocutory injunction. A different test is required because, in considering an application for a permanent injunction, the court has the ability to finally determine the merits of the case and fully evaluate the legal rights of the parties. See 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, 371 D.L.R. (4th) 643, at paras. 76-80; Cambie Surgeries Corp., at paras. 27-28.

[25] As referenced in Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf, (Toronto: Canada Law Book, 2019), at para. 1.45, in NunatuKavut Community Council Inc. v. Nalcor Energy, 2014 NLCA 46, 358 Nfld. & P.I.E.R. 123, at para. 72, the Court of Appeal of Newfoundland and Labrador summarized the approach to be applied in deciding whether to grant a permanent injunction:

(i) Has the claimant proven that all the elements of a cause of action have been established or threatened? (If not, the claimant's suit should be dismissed);

(ii) Has the claimant established to the satisfaction of the court that the wrong(s) that have been proven are sufficiently likely to occur or recur in the future that it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction? (If not, the injunction claim should be dismissed);

(iii) Is there an adequate alternate remedy, other than an injunction, that will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong? (If yes, the claimant should be left to reliance on that alternate remedy);

(iv) If not, are there any applicable equitable discretionary considerations (such as clean hands, laches, acquiescence or hardship) affecting the claimant's prima facie entitlement to an injunction that would justify nevertheless denying that remedy? (If yes, those considerations, if more than one, should be weighed against one another to inform the court's discretion as to whether to deny the injunctive remedy.);

(v) If not (or the identified discretionary considerations are not sufficient to justify denial of the remedy), are there any terms that should be imposed on the claimant as a condition of being granted the injunction?

(vi) In any event, where an injunction has been determined to be justified, what should the scope of the terms of the injunction be so as to ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven or threatened or to effect compliance with its intent? [Emphasis added.]

[26] Given their potentially broad and restrictive scope, permanent injunctions must be particularly tailored to the specific circumstances of the case in which they are ordered. It is therefore incumbent on the court asked to consider such relief to conduct a careful analysis and to limit the breadth of any permanent injunction to only what is reasonably necessary to remedy the specific wrong committed and prevent further harm to the claimant. See Cambie Surgeries Corp., at para. 39; NunatuKavut Community Council Inc., at para. 71.

[27] In their statement of claim, in addition to damages for defamation, the respondents claimed damages for intrusion upon seclusion and harassment. However, the respondents only pursued the defamation claim on summary judgment. The motion judge sets out clear reasons for her findings of defamation, which are not disputed on appeal. But she makes no determinations concerning the respondents’ claims in relation to intrusion upon seclusion or harassment.

[28] Moreover, the motion judge makes no reference to nor carries out any discernible analysis of the rationale applied to impose the restriction of the appellant’s movements and communications, as ordered in subparas. 6 to 8 of her judgment. While she adverts, in para. 99 of her reasons, to the circumstances in which permanent injunctions against the publication of defamatory statements may be warranted, the motion judge does not reference any criteria respecting the advisability of granting a permanent injunction restraining the appellant’s movements or communications.

[29] In the following excerpt from para. 100 of her reasons, the motion judge highlights aspects of the appellant’s conduct that she says, “go to continue his campaign of harassment of the plaintiffs”:

The fact that Mr. Castellano fabricated a reason to attend at Mr. Evans’ personal residence, when he had no legitimate purpose to go there, is further evidence of the lengths that Mr. Castellano is prepared to go to continue his campaign of harassment of the plaintiffs. At a Trial Board hearing regarding Mr. Castellano’s conduct, the Trial Board found that Local 183’s staff feared for their safety. The Trial Board expressed concern that Mr. Castellano’s conduct would only escalate.

[30] The motion judge’s above-noted observations about harassment are sandwiched between her conclusions in para. 100 about the prospect of the appellant continuing to make defamatory comments. Specifically, the first two and concluding two sentences of para. 100 focus on the question of the likelihood of the appellant continuing his defamatory postings.

[31] Recall that a permanent injunction is a remedy that may be granted once a legal right or a cause of action has been finally adjudicated and proven on a balance of probabilities. Since defamation was the only tort that the motion judge found to have been established, the remedy sought and granted should have been only in relation to and for the purpose of preventing a continuation of that tort. As such, to justify the granting of a permanent injunction restricting the appellant’s movements or communications, the motion judge would have had to conclude that a permanent injunction restricting the appellant’s movements or communications with the respondents was reasonably necessary to remedy the defamation and to prevent the defamation campaign from continuing. She did not do so.

[32] The motion judge erred in failing to carry out the required analysis and make the appropriate findings to determine whether such a broad permanent injunction, which severely restricts the appellant’s movements and communications, was necessary to put an end to the appellant’s defamation campaign.

[33] Restrictions on a person’s communications and expressions of opinion are extraordinary; court-ordered restraints on a person’s physical freedom imposed in a civil dispute, outside certain statutorily prescribed circumstances, should be even more exceptional. The reasons for the latter caution are evident: they limit a person’s freedom and breaches of such ordered limitations could result in penal sanctions, including imprisonment.

[34] The motion judge’s findings regarding the likelihood that the appellant would continue his defamation campaign do not justify the broad restraining order enjoining the appellant from contacting, or communicating with, all the respondents. There is nothing in the evidence to suggest that restricting the appellant’s movements and communications is reasonably necessary to prevent the appellant from continuing his defamation campaign.

[35] However, the respondents are not without recourse. If necessary, other remedies are available to restrain the appellant’s behaviour, such as issuing a trespass notice under the Trespass to Property Act, R.S.O. 1990, c. T.21, which Local 183 already did, or pursuing a peace bond under the Criminal Code, R.S.C. 1985, c. C-46: Rainy River (Town) v. Olsen, 2017 ONCA 605, 64 M.P.L.R. (5th) 76, at para. 9.

[36] In consequence, we set aside subparas. 6 to 8 of the motion judge’s judgment.

C. Disposition

[37] Accordingly, we admit the fresh evidence, allow the appeal in part, and set aside and amend the motion judge’s judgment as indicated above.

[38] The appeal is otherwise dismissed.

[39] The success on this appeal was mixed. We therefore make no order as to the costs of this appeal. Since the motion below was mostly devoted to the defamation and s. 137.1 motion issues on which the appellant was and remains unsuccessful, we do not disturb the costs order made below.

Released: February 3, 2020 (“P.R.”)

“Paul Rouleau J.A.”

“L.B. Roberts J.A.”

“A. Harvison Young J.A.”