Court of Appeal for Ontario

Date: August 8, 2025

Docket: COA-24-CV-0034

Judges: Miller, Monahan and Dawe JJ.A.

Between

Universalcare Canada Inc., Villa Colombo Seniors Centre (Vaughan) Inc. and Joseph Gulizia

Plaintiffs (Appellants)

and

Domenica Gusciglio

Defendant (Respondent)

Counsel

Michael Prosia, for the appellants

Jillian M. Siskind and Sarah Jamshidimoghadam, for the respondent

Heard: November 22, 2024

On Appeal

On appeal from the order of Justice P. Tamara Sugunasiri of the Superior Court of Justice, dated December 5, 2023, with reasons reported at 2023 ONSC 6874.

B.W. Miller J.A.:

Factual Overview and History of the Proceedings

[1] The respondent's mother resided for a time at Villa Colombo Seniors Centre in Vaughan. The respondent believed that the level of care her mother received was inadequate. She repeatedly expressed her dissatisfaction to the management and staff of Villa Colombo and the Ministry of Health and Long-Term Care. Villa Colombo also had its complaints about the respondent – particularly what it characterized as her abusive treatment of physicians, nurses, administrators, and other employees. Ultimately, the appellant Joseph Gulizia, the CEO of Universalcare and the Manager of Villa Colombo, restricted her visitation privileges for a period of time.

[2] The appellants became aware of multiple anonymous Twitter accounts that were making what they believed to be defamatory postings about them. These accounts included Villa Colombo Vaughan Abuses Seniors (with 10,000 followers), Vaughan Elder Abuse LTC (with 61,000 followers), and Happy Days (with 44,000 followers), which collectively posted approximately 100 tweets about the appellants over a three-year period. Many of the tweets included photos of Mr. Gulizia, with various captions stating he was, for example, "a disgusting pig", an elder abuser who ran a "death squad" and belonged in jail, and that Villa Colombo would kill residents if their families spoke up about abuse. Some of the employees were described as "devils".

[3] The appellants believed the respondent to be the author of the tweets. The appellants commenced a defamation action against her in December 2019. The respondent continually denied being the author of the tweets until the verge of examination for discovery in 2021, at which time she amended her Statement of Defence and brought a motion under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (sometimes referred to as an anti-SLAPP motion) to dismiss the action.

[4] The relevant portion of s. 137.1 states:

Order to Dismiss

(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.

No Dismissal

(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.

The Reasons Below

[5] The motion judge granted the motion and dismissed the action, finding that the respondent established that the proceeding arises from expression that, taken "as a whole", related to the topic of elder care in long-term homes, which she concluded is a matter of public interest.

[6] The motion judge omitted any analysis of whether the appellants had met their onus of establishing "grounds to believe" (1) that the action had merit and (2) that the respondent had no valid defence, and dismissed the action on the basis that in any event the appellants could not prevail on the motion because they had not persuaded the motion judge "that they likely have suffered any harm, or will suffer harm from Ms. Gusciglio's tweets, let alone serious harm sufficient to outweigh the deleterious effect of stifling her expression on a matter of public interest."

[7] The motion judge summarized the appellants' evidence of harm, characterizing them as "bald statement[s]" from Mr. Gulizia:

[T]he tweets had serious harmful consequences for all the plaintiffs. He states that staff refused to work that section of Villa Colombo where Ms. Gusciglio's mother was, and that her harassment was the main reason why he believes the Director of Care resigned. Mr. Gulizia complains that friends and family would constantly ask him about the tweets. In cross-examination, Mr. Gulizia added that he felt disappointed by the tweets.

[8] The motion judge concluded that the evidence of harm produced by the appellants addressed the impact of the respondent's "harassing conduct when visiting the home itself rather than the impact of her tweets", and that the "reasonable inference" to be drawn is that the purpose of the action is not to genuinely vindicate any harm suffered as a result of the tweets, but to "teach her a lesson" and "deter others from behaving as she did." The motion judge concluded that s. 137.1(4)(b) is "intended to be a 'robust backstop' to screen out lawsuits of this nature", allowed the motion, and dismissed the action. She also awarded the respondent costs of the motion in the amount of $100,000.

Issues on Appeal

[9] The appellants argue that the motion judge failed to conduct the necessary analysis of the expressions in question to determine: (1) whether they relate to a matter of public interest; (2) whether there is reason to believe that the defamation claim had merit and the appellants had suffered harm. Accordingly, the motion judge failed to perform the necessary balancing required by s. 137.1(4)(b).

Analysis

The Action Arises from Expressions that Relate to a Matter of Public Interest

[10] I am not persuaded by the appellants' argument on the first ground of appeal. Whether the vast majority of the tweets constitute personal invective and are accordingly of low value, the motion judge did not err in characterising the object of the expressions giving rise to the defamation action as the standard of care in long-term care homes in general, and at the Villa Colombo Vaughan in particular. The invective was not free-standing or made within the context of a private commercial dispute, such as in Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171, but was made within the context of the subject of elder care in long-term care homes, or a particular long-term care home. Elder care in long-term care homes is uncontroversially a matter of public interest.

[11] It was therefore not an error for the motion judge to conclude that the defamation action arose from expressions that relate to a matter of public interest, bringing the action within the scope of s. 137.1. None of this is to conclude, however, that the impugned statements were necessarily of high value for the purposes of the remainder of the analysis.

The Motion Judge Made Reviewable Errors in Her s. 137.1(4) Analysis

[12] The appellants are correct, however, that the motion judge made reviewable errors in her analysis under s. 137.1(4), such that it is necessary to allow the appeal and restore the action, without prejudice to the respondent refiling her motion if she chooses, to be heard by a different judge on the same record or as directed by the motion judge.

[13] No doubt mindful of this court's repeated admonition that anti-SLAPP motions are intended to operate as an efficient, preliminary screen to filter out abusive claims, and not to descend to the depths of a summary judgment motion (see for example 40 Days for Life v. Dietrich, 2024 ONCA 599, at paras. 43 and 45, leave to appeal refused, [2024] S.C.C.A. No. 396), the motion judge attempted an analytical shortcut that restricted her analysis to the question of whether the appellants had satisfied their burden (under s. 137.1(4)(b)) of establishing that they had suffered sufficient harm. She concluded that the appellants had not done so, and therefore could not prevail at the balancing step, irrespective of whether they could have established that there were grounds to believe the action was meritorious and the respondent lacked any valid defence. Unfortunately, the motion could not be resolved on this basis.

[14] The motion judge's analysis of the s. 137.1(4)(b) issue was brisk, immediately moving from the finding that "[t]he sum of the Plaintiffs' evidence reveals little or no harm from Ms. Gusciglio's tweets" to the conclusion that "[t]he reasonable inference is that the lawsuit is designed to address Ms. Gusciglio's behaviour at the home … teach her a lesson, stand behind staff, and to deter others from behaving as she did." The balancing analysis required by s. 137.1(4)(b) was then simply a matter of reporting that the effect of the action was to "curb her commentary on a matter of public interest", with the assumed conclusion that the public interest in permitting the expression necessarily outweighed the public interest in allowing the appellants to continue the action to vindicate their claims.

[15] The motion judge made two errors. First, she made an error of mixed fact and law in finding the evidence revealed "little or no harm" from the tweets. To assess the harm from defamation, the motion judge was required to consider the sting of the words used, if not in every tweet then at least according to some representative samples drawn from a recognizable scheme of characterization. By not conducting the s. 137.1(4)(a) analysis, this was left undone. This left in shadow, at the s. 137.1(4)(b) stage, facts that could have led the motion judge "'to draw an inference of likelihood' of harm of a magnitude sufficient to outweigh the public interest in protecting the defendant's expression": Hansman v. Neufeld, 2023 SCC 14, 481 D.L.R. (4th) 218, at para. 67. Relevant facts might have included that Mr. Gulizia is the CEO of a company that operates in a highly regulated field, and whose business depends on a high degree of trust from both the public and regulatory bodies, and that the respondent made allegations of very serious wrongdoing (including the commission of serious crimes) against Mr. Gulizia personally, against the company he operates, and against Villa Colombo Vaughan. The likelihood of harm resulting from these allegations of wrongdoing must be assessed in light of the Supreme Court's repeated emphasis on the "weighty importance that reputation must be given", and that a person's good reputation "is closely related to the innate worthiness and human dignity of the individual": Bent v. Platnick, 2020 SCC 23 at para 146, (citing Hill v. Church of Scientology, [1995] 2 SCR 1130, at para 107.)

[16] In concluding that the evidence of harm adduced was insufficient, the motion judge applied too high a standard. At the public interest hurdle, "the plaintiff need not prove harm or causation; the court is tasked at this stage with drawing inferences of likelihood in respect of the existence of harm, its magnitude, and the relevant causal link": Mondal v. Kirkconnell, 2023 ONCA 523, 485 D.L.R. (4th) 90, at para. 30; 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 71. It was therefore an error to find the appellants had not, for the purpose of s. 137.1(4)(b) balancing, discharged their burden with respect to the likelihood of harm suffered. The standard applied was too stringent and failed to take sufficient account of the alleged harm to Mr. Gulizia's professional reputation, even if not quantifiable at this stage.

[17] Second, the motion judge concluded that the insufficiency of evidence of harm was determinative of the balancing step because she assumed the respondent's expression had value. This assumption was another error.

[18] It is hazardous to dispense with the s. 137.1(4)(a) analysis except in the clearest of cases, which this is not. Had the motion judge engaged in the preliminary step of assessing whether there were grounds to believe the defamation action had substantial merit and grounds to believe a defence would not succeed, the motion judge would have had to come to some preliminary assessment of the value of the respondent's expression and whether it was motivated by malice. This would have assisted in the public interest balancing analysis. It is not sufficient, for the purposes of the balancing analysis, to simply note that the expression addressed a matter of public interest. It cannot be assumed that all expressions that address matters of public interest are necessarily of high value, let alone outweigh the public interest in permitting plaintiffs to pursue an action seeking a remedy for alleged harm suffered: Marcellin v. London (Police Services Board), 2024 ONCA 468, 498 D.L.R. (4th) 438, at paras. 96-97.

[19] Because of these two errors, the balancing analysis must be redone. As the parties argued before us, because we do not have the necessary findings that would permit us to conduct the analysis afresh, it is necessary to remit the matter to the Superior Court for a rehearing, should the respondent choose to continue with the motion.

Disposition

[20] I would allow the appeal, set aside the motion judge's order, including the costs order, and restore the action without prejudice to the respondent renewing her motion to strike the action under s. 137.1, to be heard before a different judge.

[21] I would award the appellants costs of the appeal in the amount of $15,000, inclusive of HST and disbursements.

Released: August 8, 2025

"B.W.M."

"B.W. Miller J.A."

"I agree. P.J. Monahan J.A."

"I agree. J. Dawe J.A."