Court of Appeal for Ontario

Date: 20220606 Docket: C69811

Tulloch, Lauwers and Paciocco JJ.A.

BETWEEN

Roger Anthony Paul, Danielle Marie Paul and Madvalley Media Plaintiffs (Respondents)

and

The Corporation of the Township of Madawaska Valley, Kim Love, Carl Bromwich, Ernest Peplinski, David Shulist and Mark Willmer Defendants (Appellants)

Counsel: J. Paul R. Cassan and Tim J. Harmar, for the appellants Justin Safayeni and Karen Bernofsky, for the respondents

Heard: May 26, 2022

On appeal from the order of Justice Adriana Doyle of the Superior Court of Justice, dated August 6, 2021, with reasons reported at 2021 ONSC 4996, 22 M.P.L.R. (6th) 17.

Reasons for Decision

[1] The appellants brought an unsuccessful “anti-SLAPP” motion for an order dismissing the respondents’ action under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43. For the reasons that follow, the appeal is dismissed. This dismissal is not to be taken as making any comments on the merits of the respondents’ action.

I. Facts

[2] There is considerable ill will on both sides, to which both sides have contributed. The appellants are a local Township and various elected officials. The respondents, Roger Anthony Paul, Danielle Marie Paul and Madvalley Media, are the owners of a small not-for-profit community newspaper known as the Madawaska Valley Current. The individual respondents were previously involved in litigation with the Township, including a Human Rights Tribunal of Ontario claim by Ms. Paul that was resolved by Minutes of Settlement on the eve of the hearing.

[3] After the HRTO settlement, Mr. Paul wrote to the Township, advising it to bring an action against its previous solicitors to recover the costs spent defending rather than mediating the HRTO action. Mr. Paul stated that he was a lawyer and could be an “expert witness” for the Township.

[4] Mr. Cassan, the Township’s new lawyer, wrote an opinion letter to the Township advising against bringing an action against the former solicitors. He noted that Mr. Paul could not be an expert witness because his wife’s status as a party to the HRTO action meant he could not be an impartial expert witness. Mr. Cassan added that he was unable to verify that Mr. Paul was ever called to the Ontario Bar or that he had practised law in Canada. Mr. Cassan also suggested that all future correspondence from Mr. Paul could be directed to Council in order to reduce staff time spent dealing with Mr. Paul’s voluminous correspondence.

[5] Mr. Cassan’s opinion letter was discussed at an August 27, 2019 Town Council meeting. Council waived solicitor-client privilege for the meeting. The opinion letter was distributed to the Council members in attendance. The copies were returned to the clerk and shredded after the meeting. The letter was not distributed to the public. As a courtesy, one copy of the letter was provided to Mr. Paul, who was at the meeting. After deliberating, Council passed a resolution, confirming a by-law accepting Mr. Cassan’s recommendations. After the meeting, Mr. Paul forwarded to the Township proof of his call to the Ontario Bar. He demanded an apology and that the Township donate $500 to a not-for-profit organization.

[6] The respondents then sued the appellants for defamation and misfeasance in public office in relation to the following:

• Derogatory comments made by Councillor Peplinski at a Town Council meeting in February 2019, directed at Mr. Paul;
• The comments about Mr. Paul’s status as a lawyer in the opinion letter presented at the August 27, 2019 Town Council meeting;
• The resolution and confirming by-law directing all communications from Mr. Paul to the Town Council; and
• Statements by an unnamed councillor at the August 27, 2019 Town Council meeting that Mr. Paul should apologize to ratepayers and write a cheque to the Township for $60,000.

[7] The appellants brought an “anti-SLAPP” motion for an order dismissing the claim under s. 137.1 of the Courts of Justice Act. They argued that the action arose from expressions relating to the public interest and put several defences in play in their motion materials and argument before the motion judge, including the defences of justification, solicitor-client privilege, qualified privilege, and absolute privilege for the defamation claim, and the defence of immunity for the misfeasance of public office claim.

II. The Motion Judge’s Decision

[8] The motion judge dismissed the appellants’ motion to dismiss the respondents’ action. She found that the claim was in relation to statements that were “expressions” within the meaning of s. 137.1(2), and that the expressions related to matters of public interest because the public has a genuine stake in knowing about matters pertaining to Town Council, its discussions and its decisions. Although Councillor Peplinski’s comments at the February 2019 Town Council meeting were insulting, an expression does not lose its quality of being related to a matter of public interest just because it contains insulting language: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 75. These determinations met the appellants’ onus under s. 137.1(3) of the Act. The effect of the motion judge’s findings under s. 137.1(3) of the Act was to shift the onus to the respondents to establish the elements listed under s. 137.1(4): Pointes, at para. 31.

[9] The motion judge found that the respondents had met their burden under s.137.1(4)(a)(i) and (ii), both of which are required in order for the motion to be dismissed: Pointes, at para. 42. First, the motion judge found, under s.137.1(4)(a)(i), that the respondents met their burden to show that the claims had a prospect of success: Pointes, at para. 54. Second, she found, under s. 137.1(4)(a)(ii), that the respondents satisfied her that there were grounds upon which each of the defences could realistically be rejected, based on the law and on the record: Pointes, at para. 60.

[10] At the final step, weighing the competing interests under s. 137.1(4)(b), the motion judge found that the respondents had met their burden of showing that the harm they suffered as a result of the expressions made by the appellants was sufficiently serious that the public interest in permitting the action to proceed outweighed the public interest in protecting the contested expressions. Looking first at the harm alleged, the motion judge found that although the respondents’ claims of financial damage were “bald assertions”, the respondents suffered more than minimal or nominal damages due to the harm to Mr. Paul’s professional reputation: see Pointes, at paras. 69-71; Bent v. Platnick, 2020 SCC 23, 449 D.L.R. (4th) 45, at para. 146. Weighing this against the public interest in the appellants’ expression, the motion judge held that, “[a]llowing this action to proceed to a determination on the merits gives appropriate weight to the public interest in seeing harm arising from defamatory statements remedied, while also addressing the public interest in protecting the type of expression in which the [appellants] engaged”.

III. Analysis

[11] The appellants do not argue that the motion judge erred in her description of the legal tests to be applied under s. 137.1 of the Courts of Justice Act. They argue that she made several errors in their application to the facts.

[12] First, based on some loose language in the motion judge’s reasons, the appellants argue that she misunderstood the fundamental distinction between weighing and balancing different interests. In Pointes, Côté J. noted at para. 18: “It is important to recognize that the final weighing exercise under s. 137.1(4)(b) is the fundamental crux of the analysis”. The appellants argue that balancing and weighing are two different concepts. The judge must weigh, not balance, the interests in what is described as “the fundamental crux of the analysis”. The appellants point out that the motion judge used a heading just before para. 178 that set the test as a matter of balancing, an error she repeated elsewhere, at para. 210, and again at para. 212.

[13] There is no doubt that there is a substantive difference between the weighing exercise required by the legislation and a balancing exercise. See Pointes, at paras. 65-67.

[14] We do not agree that the way the motion judge framed the test is fatal. The question is whether she carried out the weighing exercise as prescribed. In our view she did. The motion judge grappled with the appropriate contending considerations, as set out in Pointes at paras. 73-82. She expressed the test properly at paras. 178-79, and came to her conclusion at paras. 212-14 and 220. She fully recognized, at para. 212, that the “final weighing exercise” was “the fundamental crux” of the analysis. She noted, at para. 213, that her duty was to take into account the expressive value, that is to “consider whether there is any evidence that public debate has been unduly chilled due to this lawsuit or whether it will be chilled if this lawsuit is permitted to proceed”.

[15] There is no reviewable error in the motion judge’s conclusion, at para. 214, that “[a]llowing this action to proceed to a determination on the merits gives appropriate weight to the public interest in seeing harm arising from defamatory statements remedied, while also addressing the public interest in protecting the type of expression in which the [appellants] engaged”. In Pointes, at para. 77, Côté J. held that a “motion judge’s determination on a s. 137.1 motion will typically be entitled to deference upon appeal, absent reviewable error”.

[16] Doherty J.A., in Pointes, 2018 ONCA 685, 142 O.R. (3d) 161, at para. 97, wrote: “If a motion judge provides full reasons, an appeal court must defer to the motion judge’s balancing of the competing interests under s. 137.1(4)(b), absent an identifiable legal error, or a palpable and overriding factual error”.

[17] In coming to her conclusion, the motion judge took into account the quality of the expression in question. As Côté J. noted in Pointes, statements containing “gratuitous personal attacks” could be expressions related to public interest, but “the public interest in protecting that speech will be less than would have been the case had the same message been delivered without the lies, [or] vitriol”: at para. 75. The motion judge noted that the public interest in the appellants’ freedom of expression in performance of their obligations “must be viewed and considered in light of the public interest in [Mr. Paul’s] private interest in protecting his reputation, in protecting individuals’ reputation from being attacked without impunity”. We see no error in her conclusion, based, as she noted, on an analysis of “what [was] really going on” in this case, as prescribed by para. 81 of Pointes. We note, again, that our determination makes no comment on the merits of the underlying action itself.

[18] The appellants’ second argument is that the motion judge stepped into the breach on behalf of the self-represented respondents and did the analysis of the defences available to the appellants on which the respondents made no submissions. This had, the appellants submit, the legal effect of reversing the onus on the respondents under s. 137.1(4) of the Courts of Justice Act and shifting it improperly to the appellants.

[19] We do not accept this argument. The defences to a defamation action are obvious and were in fact raised by the appellants themselves in argument. The motion judge was obliged to address the arguments the appellants adduced concerning these provisional defences, based on the evidence and record before her, and did not err in her analysis of them.

[20] Third, the appellants argue that the motion judge erred in her analysis of absolute privilege and its availability to the appellants under Gutowski v. Clayton, 2014 ONCA 921, 124 O.R. (3d) 185, leave to appeal refused, [2015] S.C.C.A. No. 74. The motion judge stated at para. 169:

No evidence was provided in the record that the Township has these controls in place to avail themselves of the defence of absolute privilege and the record is not sufficient for me to determine whether the defence of absolute privilege extends to the expressions of the [appellants].

[21] Elsewhere in her reasons, the motion judge pointed to the elements which the appellants argue give rise to absolute privilege under Gutowski, but she held that “a s. 137.1 motion is not the forum to decide whether the defence … is applicable in this case”. We agree with the motion judge that this kind of motion is not the place for a determination of this issue, which could play a role in the appellants’ defence of the defamation action. She did not err in declining to address more fully the issue of absolute privilege as a defence. See Pointes ONCA per Doherty J.A. at para. 81 and Pointes SCC per Côté J. at para. 37. This is properly the subject matter of the defamation trial.

[22] Finally, the appellants make a procedural argument. They were obliged to bring a motion at the beginning of the hearing to strike out portions of the materials filed by the respondents. The appellants were largely successful but say that the exercise disadvantaged them because they could not know until the decision was rendered what material the motion judge had accepted for the purpose of the argument on the merits. We agree that it would have been better had the procedural motion proceeded well before the argument on the merits. That said, we accord this argument no weight because the appellants pointed to no specific material and to no specific prejudice that this procedural issue might have caused them.

IV. Disposition

[23] The appeal is dismissed. The parties asked for an opportunity to file written submissions on costs. The respondents will file a written submission of no more than three pages in length, followed by the appellants’ submission with the same page limits, followed by a two-page reply by the respondents on a seven-day turnaround for each stage.

“M. Tulloch J.A.”

“P. Lauwers J.A.”

“David M. Paciocco J.A.”