Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20231108 DOCKET: COA-23-CV-0207

Trotter, Sossin and Monahan JJ.A.

BETWEEN

Mirza Chaudhary and Masud Raja Plaintiffs (Appellants)

and

Muhammad Shahid Defendant (Respondent)

Counsel: Jonathan Rosenstein, for the appellants Abdalla Ali Al-Baalawy and Thabang Pebane, for the respondent

Heard: October 31, 2023

On appeal from the order of Justice Marie-Andrée Vermette of the Superior Court of Justice, dated October 13, 2022, with reasons reported at 2023 ONSC 653.

Reasons for Decision

[1] The appellants commenced an action against the respondent for his role in briefly sharing someone else’s arguably defamatory Facebook post. The respondent successfully brought an anti-SLAPP motion to dismiss the defamation action, pursuant to s. 137.1(3) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (“CJA”). The appellants appeal from this ruling. After hearing oral submissions, we advised counsel that the appeal was dismissed with reasons to follow. These are our reasons.

Background

[2] The underlying facts are complicated. There is little point in attempting to improve on the motion judge’s summary, found at paras. 3 to 12 of her reasons:

1. The parties and PTI Canada

[3] The [appellants] and the [respondent] are members of the Pakistani Canadian community in the Greater Toronto Area (“Community”).

[4] On October 23, 2007, members of the Pakistani diaspora in Canada registered Pakistan Tehreek-e-Insaf Canada (“First PTI Canada”) as a not-for-profit corporation. Pakistan Tehreek-e-Insaf (“PTI”) is a political party in Pakistan founded by Imran Khan, who served as Prime Minister of Pakistan.

[5] First PTI Canada was dissolved on July 10, 2016. The [appellants] acted as directors and officers of First PTI Canada during part of its existence. The [respondent] was a member of First PTI Canada from 2010 to 2013. In his affidavit, the [respondent] expresses concerns regarding First PTI Canada’s corporate governance and alleged lack of financial disclosure and transparency.

[6] On January 8, 2018, a new not-for-profit corporation named PTI Canada was incorporated (“New PTI Canada”). Based on the Federal Corporation Information for New PTI Canada, the [appellants] are not directors of the new corporation.

2. Dam Fund

[7] In 2018, the Chief Justice of Pakistan (now retired) started an initiative to raise money to build dams in Pakistan (“Dam Fund”). Overseas Pakistanis were asked to contribute to the Dam Fund.

[8] On October 21, 2018, a “Pakistan Dam Funding Event” was held in Mississauga to support the Dam Fund (“Dam Fundraising Event”). Many members of the Community as well as Canadian Pakistanis from different parts of Canada attended the Dam Fundraising Event. The [respondent] did not attend.

[9] According to the [respondent]: (a) it was widely known in the Community and in the Pakistani diaspora community in other parts of Canada that First PTI Canada board members, including the [appellants], were some of the organizers of the Dam Fundraising Event; and (b) it was reported in many Canadian Pakistani news media outlets that over $1 million were raised for the Dam Fund at the Dam Fundraising Event.

[10] The Dam Fund has an online registry. In his affidavit, the [respondent] states that members of the Community were concerned after the Dam Fundraising Event about where the funds raised at the event went as there was no payment registered on the Dam Fund registry from Canada in the amount that was purportedly fundraised at the Dam Fundraising Event (i.e. over CAD $1,000,000).

3. Posts on Facebook

[11] On April 12, 2019, Mr. Irfan Elahi posted an image with added text in Urdu on a Facebook group page called “PTI Supporter”, which has over 47,000 members. The image appears to be an advertisement (in English) for a seminar organized by New PTI Canada. The advertisement contains photographs showing the faces of a number of people, including the [appellants]. The names of the people who appear in the photographs, including the [appellants’] names, do not appear anywhere. While there is no certified translation before me of the text in Urdu that was added above the image of the advertisement, the translation prepared by the [respondent] is as follows: “This is a group of thieves. On the name of Dam (fund), they have stolen $1.2 million. They are defaming name of PTI.”

[12] The [respondent’s] evidence is that he does not know Mr. Elahi. However, when he saw his post, he decided to share it on his Facebook page, which he did on April 22, 2019 (“Post”). The Defendant states that the Post was not up for more than one and a half hours before he deleted it from his profile. The [respondent] further states that: (a) he did not add any commentary to Mr. Elahi’s original post; (b) he did not tag anyone on the Post; (c) no-one liked the Post or made comments on it; and (d) to his knowledge, no one shared or reposted the Post. According to the [respondent], Mr. Elahi’s original post was still up on the PTI Supporter Facebook group page at the time the Statement of Defence was served in December 2019 and at the time of the [respondent’s] examination for discovery in July 2021. [Emphasis added, footnote omitted.]

[3] As noted, the appellants commenced an action against the defendant seeking $240,000 in damages, and other relief.

The Application Under s. 137.1(3) of the CJA

[4] The respondent filed an affidavit in support of his motion, on which he was cross-examined. The appellants filed no affidavit evidence. As discussed below, this turned out to be significant.

[5] The motion judge applied ss. 137.1(3) and (4) of the CJA, which provide:

(3) On motion by a person against whom a proceeding is brought, 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.

(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

(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.

[6] The motion judge found that the respondent met his burden under s. 137.1(3) – the underlying proceeding arises from his expressive activity that relates to a matter of public interest. Turning to s. 137.1(4)(a)(i), the motion judge found that the appellants had established the underlying action has substantial merit. However, she found that the appellants “barely” met their onus under s. 137.1(a)(ii) concerning the respondent’s defences: paras. 54, 57. As for the balancing under s. 137.1(4)(b), the motion judge concluded that the appellants failed to establish that the harm they have suffered or are likely to suffer is sufficiently serious to outweigh the public interest in protecting the expression and public participation. The motion was granted and, as a result, plaintiffs’ action was dismissed.

Grounds of Appeal and Discussion

[7] The appellants submit that the motion judge erred in her application of s. 137.1(3) in finding that the respondent discharged his onus to establish that the impugned speech related to a matter of public interest. She also erred in conducting the balancing under s. 137.1(4)(b) by downplaying the reputational harm that the appellants suffered. We do not accept either submission.

(1) A Matter of “Public Interest”

[8] The appellants submits that the motion judge erred in characterizing the content of the Post. Instead of relying upon what the respondent said he intended in his affidavit, the motion judge should have looked at the words themselves and considered what a reasonable person would have understood them to mean. In other words, the motion judge erred by not engaging in an objective assessment.

[9] We see no error in the motion judge’s approach under this branch of the test. Relying on Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 84, the motion judge rightly held that there is no qualitative assessment of the expression at this stage. She interpreted the words in context. As she said, at para. 39:

Interpreted broadly, the Post raises concerns regarding the management of funds raised for a charitable purpose. This is a matter of public interest. I find that some segment of the community, including the Community and those who made donations to First PTI Canada, New PTI Canada or at the Dam Fundraising Event, would have a genuine interest in receiving information on the subject.

[10] The appellants contend that this would mean that any theft of charitable funds would qualify as a matter of public interest. We are not tasked with testing this general proposition, although it may indeed be true. Nonetheless, we see no error in the trial judge’s characterization of the matter in the circumstances of this case, particularly in the communities which she identified – it is a matter of public interest.

(2) Balancing Under s. 137.1(4)(b)

[11] The appellants further submit that the motion judge erred when balancing the harm suffered or likely to be suffered as a result of the impugned speech on the one hand, and the public interest in protecting the expression and public participation, on the other. They submit that she erred in disregarding non-financial harm, and that the vindication of their reputations should have weighed more heavily in the balance. We do not accept these submissions.

[12] The appellants sought substantial damages – at least $240,000 in damages. It was an important part of their claim. In their pleadings, the appellants claimed: “This has caused significant and irreparable harm to [the appellants’] reputations, both personal and professional. The actual damages will be the subject of a damages report in advance of trial, but are expected to be in the many hundreds of thousands of dollars, if not millions” (emphasis added).

[13] As the motion judge noted, the appellants adduced no evidence of actual harm. All she could rely upon was the presumption of harm. Referring to Bent and its consideration of the balancing under s. 137.1(4)(b) at para. 144, she observed: “General damages in the nominal sense will ordinarily not be sufficient for this purpose”: at para. 59.

[14] The motion judge also focused on the lack of an evidentiary link between the respondent’s sharing of the Post, deleted after 90 minutes, and the harm claimed to have been suffered by the appellants. There was no evidence as to how many people would have viewed the Post. At the time of the motion, Mr. Elahi’s post was still active. The motion judge said, at para. 64: “Given this and the absence of any evidence of harm aside from the legal presumption, I have to conclude that the [appellants’] harm is minimal”.

[15] The motion judge conducted this balancing in the context of the broader purposes of s. 137.1 of the CJA, and in light of the guidance provided by the Supreme Court of Canada in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587. We see no error in her approach, nor in the conclusion that she reached.

Disposition

[16] The appeal is dismissed. The respondent is entitled to costs on a partial indemnity basis in the amount of $7,071.54, inclusive of disbursements and applicable taxes.

“Gary Trotter J.A.”

“L. Sossin J.A.”

“P.J. Monahan J.A.”