CITATION: Nanda v. McEwan, 2019 ONSC 3357

COURT FILE NO.: DC-18-0035

DATE: 2019 06 04

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RE: Irwin Nanda

Plaintiff (Appellant)

AND:

Derrick McEwan, Avelino Carvalho, Angela Mason and Satish Sharma

Defendants (Respondents)

COUNSEL: I. Iwasykiw for the Plaintiff/Appellant

B. Noorduyn for the Defendants/Respondents

HEARD: By way of written submissions.

REASONS FOR DECISION

Ricchetti, J.

BACKGROUND TO THESE REASONS

1On January 7, 2019, this court released its reasons in the Small Claims Court Appeal. See Nanda v. McEwan, 2019 ONSC 125. The Plaintiff's appeal was allowed, striking the stay and permitting the matter to proceed to trial.

2Issue #4 in the appeal related to a Defendant's "Anti-SLAPP" motion which had been brought before the Deputy Judge, but the Deputy Judge had failed to deal with this motion or provide any reasons for not doing so.

3At the appeal hearing, counsel agreed that, if this court had to deal with the Anti-SLAPP motion, counsel would do so by written submissions. At paragraph 100 of this court's Reasons, this court stated:

The Defendants may, if they wish, pursue their Anti-SLAPP motion in the manner described above.

4The Defendants have decided to have the Anti-SLAPP motion dealt with on this appeal rather than renewing the motion before a new trial judge.

5Written submissions were received from both parties.

THE FACTS

6The Statements (described below) were made during an election campaign for the position of President of the Toronto Local of the Canadian Union of Postal Workers (“CUPW”).

7Nanda had been involved in CUPW's Toronto Local from 1990 to 2011, then as an executive on the Ontario Federation of Labour from 2011 to 2016, and finally returning in 2016 to CUPW's Toronto Local.

8From December 2016 until about February 20, 2017, CUPW Toronto Local held an election for the local leadership. There are about 200 members of this local.

9Nanda ran for President of CUPW Toronto Local.

10The Defendants are members of CUPW Toronto Local. The Defendants opposed Nanda’s candidacy.

11WhatsApp is an invitation-only internet group messaging service. There are two WhatsApp groups at issue in the Action. The first WhatsApp group, the "United Gateway East Group" had 183 members. The second WhatsApp group, the "Parcel Group" had 100 members in it. Apparently, there is some overlap in members in these two groups. From on or about January 14, 2017 to on or about January 28, 2017, the Defendants made alleged defamatory statements against Nanda in both WhatsApp groups ("WhatsApp Statements").

12On or about January 14, 2017, the Defendants made alleged defamatory statements against Nanda on a series of posters they distributed. Some of the posters were distributed by emails, and others were by print (“Poster Statements”).

13On February 6, 2017, Nanda commenced this defamation action. Nanda claims damages in the amount of $25,000 for the allegedly defamatory WhatsApp Statements and the Poster Statements.

14The Defendants deny the WhatsApp and Poster Statements were defamatory or, alternatively, allege that the statements were justified at law as fair comment, qualified privilege, or public interest communication.

15The Defendants brought a motion, under Rule 12.02 of the Rules of the Small Claims Court, O. Reg. 258/98, to dismiss the Action on the basis that:

a) The parties were required to arbitrate the dispute under the CUPW Constitution (the “Constitution”) before commencing a court action;

b) Nanda failed to give notice under the Act prior to commencing the Action; and

c) A dismissal is appropriate pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “Anti-SLAPP” motion).

16The trial judge stayed this action. This court overturned the trial judge’s decision permitting this action to proceed.

17It is the Anti-SLAPP motion that is dealt with in these reasons.

THE STATEMENTS

18Below are some of the alleged defamatory statements at issue in this proceeding:

Some of the Quotes from the What’s App Statements

• Irwin Nada has always been a bully, disrespectful to women, a person who has a divide and conquer mentality. We all know this to be true.

• He ran back to CUPW because he realized that his money hungry mentality, his bullying, sexist, divide and conquer mentality wouldn’t work there and that he would lose badly if he tried to run for another term.

• We all know that Irwin Nada is a poison. We all know that Irwin Nanda is not a real leader but a power seeking money hungry man who like to be above everybody else and push them around

• Irwin and Sanjay in their corrupting and dividing the Toronto Local along racial lines…

• Let’s be real. There will be no united voice to face management if Irwin Nanda wins the vote tomorrow. Just domination and abuse of funds and trust. All they know are shady deals, buying ppl and votes like they’re buying things from the dollar store.

• What do people expect from a bigot? Nanda Panda will always be what he always was.

• Sorry, but I am not going to respect someone who steals from the membership. A snake is a snake.

• How come the education fund provided by the Canada Post under collective Agreement Appendix-U is not being used fairly rather has become a family and friend business and smell of clear manipulation.

• You were part to this criminal conspiracy and such offences are punishable under Canadian Criminal Justice.

• I can add that Brother Irwin is just trying to use his artistry to confuse members by interpreting the National constitution how to misuse the union funds.

• Brother Irwin and his team indulge illegal ballots and going door to door of the members to collect the ballots and mark them illegally without the members knowledge.

Some of the Quotes from the Poster Statements

• A vote for IRWIN NANDA is a vote for RACISM, SEXISM, DICTATORSHIP and NO REPRESENTATION at the Local or Regional levels.

• If you want TRANSPARENCY, no Racism, no Sexism, and fairness, then see you at the upcoming voting to keep the rightly elected committee members…

• HERES THE PROOF OF HOW IRWAN NANDA AND HIS PUTPPETS CHEATED LAST LOCAL ELECTIONS….

• This is why Irwin drags out most of the south Asian community (although most are not aware of his corruption), divides the local with racism, and wants the election committee so bad and the “mail in ballot system” so bad.

• Why does Irwin nanda “OWN” the Board? There are many theories.. but all involve corruption! Shame!

THE LAW

The Statutory Scheme

19Section 137.1 of the Courts of Justice Act ("Act") provides:

(1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

(2) In this section,

“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

(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.

The Approach

20Under s. 137.1(3) of the Act, the Defendant must first establish that the proceeding arises from an expression that relates to a matter of public interest. See Veneruzzo v. Storey, 2017 ONSC 683, at para. 20, affirmed 2018 ONCA 688. If the Defendant fails to establish this, on a balance of probabilities, the motion is to be dismissed.

21If the Defendant establishes that the expressions are a matter of public interest, then the court must go on to consider 137.1(4) of the Act, where the onus shifts to the Plaintiff to demonstrate, on a balance of probabilities, both of the following:

a) (The Merits Analysis) The claim should not be dismissed because there are grounds to believe that:

(i) the proceeding has substantial merit, and

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

b) (The Public Interest Analysis) The harm likely to be or have been suffered by the Plaintiff as a result of the Defendant’s expression(s) is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

22The purpose of s. 137.1 was described in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685:

45The purpose of s. 137.1 is crystal clear. Expression on matters of public interest is to be encouraged. Litigation of doubtful merit that unduly discourages and seeks to restrict free and open expression on matters of public interest should not be allowed to proceed beyond a preliminary stage. Plaintiffs who commence a claim alleging to have been wronged by a defendant’s expression on a matter of public interest must be prepared from the commencement of the lawsuit to address the merits of the claim and demonstrate that the public interest in vindicating that claim outweighs the public interest in protecting the defendant’s freedom of expression.

Anti-SLAPP motions are not summary judgment motions

23As stated in 1704604 Ontario Ltd.:

82While I have stressed that s. 137.1 motions are not a form of summary judgment, nor the proper forum in which to make a detailed assessment of the ultimate merits of the case, I do not mean to suggest that a motion judge must simply take at face value the allegations put forward by the parties on the motion. An evaluation of potential merit based on a “grounds to believe” standard contemplates a limited weighing of the evidence, and, in some cases, credibility evaluations. Bald allegations, unsubstantiated damage claims, or unparticularized defences are not the stuff from which “grounds to believe” are formulated. Similarly, if on a review of the entirety of motion material, the motion judge concludes that no reasonable trier could find a certain allegation or piece of evidence credible, the motion judge will discount that allegation or evidence in making his or her evaluation under s. 137.1(4)(a). Once again, the question is not whether the motion judge views the evidence as credible, but rather whether, on the entirety of the material, there are reasonable grounds to believe that a reasonable trier could accept the evidence.

83I would add two further observations with respect to the “no valid defence” requirement in s. 137.1(4)(a)(ii). That provision requires the plaintiff to satisfy the motion judge that there are reasonable grounds to believe that the defendant has “no valid defence” to the plaintiff’s claim. The section would be unworkable if the plaintiff were required to address all potential defences and demonstrate that none had any validity. I think the section contemplates an evidentiary burden on the defendant to advance any proposed “valid defence” in the pleadings, and/or in the material filed on the s. 137.1 motion. That material should be sufficiently detailed to allow the motion judge to clearly identify the legal and factual components of the defences advanced. Once the defendant has put a defence in play, the persuasive burden moves to the plaintiff to satisfy the motion judge that there are reasonable grounds to believe that none of the defences put in play are valid.

84My second observation relates to the word “valid”. I would interpret “valid” as meaning successful. The onus rests on the plaintiff to convince the motion judge that, looking at the motion record through the reasonableness lens, a trier could conclude that none of the defences advanced would succeed. If that assessment is among those reasonably available on the record, the plaintiff has met its onus.

Are the Statements a Matter of "Public Interest"?

24In 1704604 Ontario Ltd, the Court of Appeal described what constitutes "public interest":

65In 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.]

Does the Proceeding have substantial merit/are there grounds to believe there are no valid defences?

25In Levant v. Day, 2019 ONCA 244, the Court of Appeal described the approach to deal with such motions.

14Pointes instructs that “[s]ection 137.1 does not provide an alternate means by which the merits of a claim can be tried, and it is not a form of summary judgment intended to allow defendants to obtain a quick and favourable resolution of the merits of allegations involving expressions on matters of public interest”: at para. 73. Rather, the motion judge must decide whether a conclusion that the defendant has no valid defence falls within “the range of conclusions reasonably available on the motion record”: Pointes, at para. 75. Here, a trier could reasonably conclude that some of the defamatory statements made amounted to factual assertions, were not recognisable as comment and could reasonably conclude that the statements were made with malice. A trier might also reasonably conclude that s. 5(1) of the Act does not apply to the Twitter posts. Thus, the respondent has demonstrated that a conclusion that the appellant has no defence to the action is amongst the range of reasonable conclusions which might be reached by a trier and as such has met the test in s. 137.1 (4)(a)(ii), as explained in Pointes. Since the respondent has surmounted this hurdle, an analysis of the balancing test in s. 137.1(4)(b) is required.

The Public Interest Balancing

26In 17046014 Ontario Ltd., the Court of Appeal described the balancing of the public interest in allowing the matter to proceed against the public interest in protecting freedom of expression:

87Under s. 137.1(4)(b), the plaintiff (responding party) has the persuasive burden. The plaintiff must satisfy the motion judge that the harm caused to it by the defendant’s expression is “sufficiently serious” that the public interest engaged in allowing the plaintiff to proceed with the claim outweighs the public interest in protecting the defendant’s freedom of expression.

88The harm suffered or likely to be suffered by the plaintiff as a consequence of the defendant’s expression will be measured primarily by the monetary damages suffered or likely to be suffered by the plaintiff as a consequence of the impugned expression. However, harm to the plaintiff can refer to non-monetary harm as well. The preservation of one’s good reputation or one’s personal privacy have inherent value beyond the monetary value of a claim. Both are tied to an individual’s liberty and security interests and can, in the appropriate circumstances, be taken into account in assessing the harm caused to the plaintiff by the defendant’s expression: Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, at paras. 117-21; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at paras. 79-80.

THE ANALYSIS

Have the Defendants shown that the expressions are a matter of public interest?

27There is no dispute that the Statements are “expressions”.

28The issue can be re-stated as applying to this case: Can expressions between union members regarding a candidate during a local union election be considered a matter of public interest?

29No prior authority has been brought to this court's attention.

30The Ontario Court of Appeal in 17046014 Ontario Ltd. directs motion judges to consider the principles in Grant v. Torstar Corp., [2009] 3 SCR 640, 2009 SCC 61 for guidance on this issue:

105To be of public interest, the subject matter “must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”: Brown, vol. 2, at pp. 15-137 and 15-138. The case law on fair comment “is replete with successful fair comment defences on matters ranging from politics to restaurant and book reviews”: Simpson v. Mair, 2004 BCSC 754, 31 B.C.L.R. (4th) 285, at para. 63, per Koenigsberg J. Public interest may be a function of the prominence of the person referred to in the communication, but mere curiosity or prurient interest is not enough. Some segment of the public must have a genuine stake in knowing about the matter published.

(emphasis added)

31Returning to additional comments in 17046014 Ontario Ltd. on the issue of public interest:

60The context of a particular expression can be crucial in determining whether that expression relates to a matter of public interest. If the expression that gives rise to the lawsuit is part of a broader communication, the subject matter of the impugned expression is determined by reference to the communication as a whole: Grant v. Torstar Corp., at para. 101. There is a distinction between statements or other expressions that make a reference to something of public interest and expressions that relate to a matter of public interest. Section 137.1(3) captures only the latter. A brief incidental reference to a topic capable of relating to a matter of public interest, in the course of a lengthy exchange of communications devoted to a purely private dispute between the parties, may not be regarded as an expression relating to a matter of public interest. However, the same comment in another context may be regarded as relating to a matter of public interest.[6] The distinction lies in the answer to the question – what is the expression, when placed in its context and taken as a whole, about?

61A matter of public interest must be distinguished from a matter about which the public is merely curious or has a prurient interest: Grant v. Torstar Corp., at paras. 102, 105. Public people are entitled to private lives. Expressions that relate to private matters are not converted into matters relating to the public interest merely because those expressions concern individuals in whom the public have an interest or involve topics that may titillate and entertain.

62An expression can relate to a matter of public interest without engaging the interest of the entire community, or even a substantial part of the community. It is enough that some segment of the community would have a genuine interest in the subject matter of the expression: Grant v. Torstar Corp., at paras. 102 and 105.

63Public interest does not turn on the size of the audience. Especially in today’s world, communications on private matters can find very large audiences quickly. On the other hand, statements between two people can relate to matters that have a strong public interest component.

(emphasis added)

32The Defendants submit that "participating in a democratic union election, is of interest to union members, a segment of society therefore, a matter of public interest."

33The Plaintiff submits that an "election for a Local union officer is effectively a private matter."

34What is the expression, when placed in its context and taken as a whole, about?

35When viewed in their entirety and the language used in the Statements, the purpose and context was by the Defendants to make disparaging, inflammatory and allegedly defamatory comments about the Plaintiff to other local union members to get those other members not to vote for the Plaintiff.

36Does the public or a segment of the public have an interest in the expressions made by the Defendants? In my view, no.

37The election of an official to a local union is NOT a matter of public interest caught by s. 137.1 of the Act. The expression may be of interest to the approximately 200 members of the local union, but NOT to the public generally or a segment of the public. In my view, the elections of the local union is a private matter.

38This is not similar to the election of a public official such as a councillor. The public interest in such elections is obvious to the persons entitled to vote and others who may be effected by the public figure, if elected. See Armstrong v. Corus Entertainment Inc., 2018 ONCA 689. The same could be said for appointments of persons to public positions. There are many other not "public" election/appointments that engage the public interest such as environmental, planning, the arts and other categories where the Defendant could show that a general or specific segment of the public has an interest in the subject matter and that freedom of expression on that subject matter should be encouraged.

39In this case, focusing on elections, there are many elections which take place in private institutions such as church elections, management/director elections in companies, elections in community and charitable organizations, businesses such as law firm management and so on. Such elections are not matters of public interest. These elections involve highly local, limited and private interests, being those within the organizations. I see no distinction between such elections and elections in local unions.

40The suggestion that it is important to uphold freedom of expression in "democratic elections" misses the point - these private organizations set the rules who can vote, how they can vote and so on. That is for the private organization to decide. The results impact on the private organization and not the public.

41I am not persuaded that the Defendants have met their onus to show that the Statements were expressions on a matter of public interest.

42The Defence motion is dismissed.

Additional Comments

43As a result of finding that the subject matter was NOT a matter of public interest, I need not go any further to consider the merits/defences or the Public Interest Balancing.

44However, I will add the following comments on the Public Interest Balancing.

45The Statements in this case include bald expressions of: "sexist" "racist" "thief" "liar" "corruption" "south Asian voting block" and, even allegations of criminal activity.

46In my view, these are not the type of statements worthy of protection under s. 137.1 protection of the freedom of expression to encourage public debate on matters of public interest. These type of Statements do not encourage debate on public matters but are allegedly defamatory statements made for the sole purpose of attacking and maligning the character of an individual without a meaningful connection with the alleged public interest or to encourage debate on matters of public interest.

47Put another way, the statements by the Defendants in this case, appear to be vulgar and vitriolic statements meant to denigrate and defame the character of the Plaintiff to sway other voters not to vote for the Plaintiff. These statements were not intended to provide information or the exchange of opinion, assert facts into the public debate (even if it were a matter of public interest) or to engage in a discussion of a person's qualifications for office. A key example is the statement that the Plaintiff engaged in criminal conduct.

48The Defendants submit that these expressions would be recognized by a "reasonable person as exaggerated political comments for what they are: provocative political comments that do not have precision relations with reality" or "comments of opinion." I do not find that such statements, including allegations of criminal conduct, can or should be considered “provocative” comments or comments of opinion. The Statements were statements of fact intended to be acted upon by other voters. If such statements were sufficient to rise to the level worthy of protection our freedom of expression, it would permit defamation without any protection of a person’s reputation or dignity regardless of the veracity of the statements made.

49The Defendants go on to point to the regular use of such hyperbole in describing candidates in the present political era in the United States as acceptable provocative comments or acceptable comments of opinion. I find such an analogy is neither helpful nor sets an appropriate standard for what defamatory statements are worthy of protection by invoking our rights to freedom of expression.

50This view that the nature, type and manner of the expressions impact on the Public Interest Balancing finds support in the following statement by the Court of Appeal in Levant v. Day, 2019 ONCA 244 is apt:

22On the other side of the balance, the quality of the expression and the motivation of the appellant are relevant to the measure of the public interest in protecting his expression: Pointes, at para. 94. This court in Pointes, at para. 94, held that “deliberate falsehoods, gratuitous personal attacks or vulgar and offensive language”, all part of the expression here, may reduce the public interest in protecting that speech, compared to cases where the message is delivered “without the lies, vitriol, and obscenities.”

23This is not to say that resort to some vulgar language will necessarily deprive expression of value worth protecting. However here the tweets posted are imbued with hyperbole and vulgar vitriol, and admittedly false in many respects such that there is little value in protecting their expression.

(emphasis added)

51In my view, it was not the intent or purpose behind s. 137.1 to protect statements such as made here and, if necessary, I would have found that the Public Interest did not weigh in favour of the protection of such Statements.

THE CONCLUSION

52The Defendants motion is dismissed.

COSTS

53Either party seeking costs on this appeal and this motion shall serve and file written submissions on entitlement, scale and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached Costs Outline and any authorities.

54Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 3 pages with any authorities relied on attached.

55There shall be no reply submissions without leave.

Ricchetti, J.