Court of Appeal for Ontario

Date: 20210525 Docket: C68498

Juriansz, van Rensburg and Sossin JJ.A.

Between

Choudry Ajlal Mazhar Plaintiff/Responding Party (Appellant)

and

Salwa Farooqi Defendant/Moving Party (Respondent)

Counsel: Choudry Ajlal Mazhar, acting in person Nader R. Hasan and Carlo Di Carlo, for the respondent

Heard: May 7, 2021 by video conference

On appeal from the order of Justice Andrew Pinto of the Superior Court of Justice, dated March 12, 2020, with reasons reported at 2020 ONSC 3490.

Reasons for Decision

A. Background

[1] At the close of the appellant’s submissions, we did not call on the respondent and dismissed the appeal with reasons to follow. These are our reasons.

[2] The appellant met the respondent’s family in 2013. In February 2015, when he was 26 and she was 20, the appellant contacted the respondent by Facebook messenger and made a marriage proposal. The respondent declined the proposal.

[3] The motion judge found that in June 2018 the appellant “returned to the topic of marriage and suggested that he was still waiting for her”. In October 2018 the respondent blocked the appellant on WhatsApp, a messaging platform, and asked him not to communicate with her except in regard to their mutual volunteer activity with Muslim Awards for Excellence (“MAX”).

[4] In December 2018, the respondent became engaged to her long-term partner. On January 24, 2019, the appellant sent the respondent a lengthy email, telling her he had “developed severe hatred” for her and her mother over the “past few months”. He said he “had continuous negative thoughts” against both of them, which he “could not control.” He attributed this to someone linked to the respondent and her mother doing black magic on him. Over time he “started developing severe hatred for [the respondent and her mother], without understanding why, and this kept on growing to the point [he] felt like fighting with [the respondent and her mother], cutting off communication.” The appellant claimed that the respondent and her mother had been “equally influenced with Black Magic”. The appellant imputed the respondent’s attachment to her fiancé to the influence of black magic. Black magic got her “to the point where [she could not] resist getting close to [her fiancé] and getting married”. The appellant went on to accuse the respondent’s fiancé of casting a black magic spell on the respondent by feeding her ingredients he had obtained from Bangladesh.

[5] This email prompted the respondent to confide in Dr. Ahmed, the chair of MAX, and correspond with MAX’s Board about her concerns about the appellant in January 2019. The appellant commenced an action in defamation on August 2019 based on the complaint.

[6] The respondent then successfully brought a motion to have the action dismissed pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the anti-SLAPP provision). The legislation is intended, as it states, to encourage individuals to express themselves on matters of public interest, to promote broad participation in debates on matters of public interest, to discourage the use of litigation as a means of unduly limiting expression on matters of public interest, and to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

[7] The motion judge found first that the respondent met her onus to show the impugned expression related to a matter of public interest under s. 137.1(3). He then found the appellant had established his action had substantial merit as required by s. 137.1 (4)(a)(i) in that the respondent’s words could be found to be defamatory. However, he concluded the appellant had failed to establish the respondent had no valid defence as required by s. 137.1 (4)(a)(ii). He found the respondent could establish the defence of justification as her comments were substantially true, that the defence of fair comment was established, and that all the elements of the defence of qualified privilege were satisfied.

[8] The appellant appeals the dismissal of his defamation action against the respondent.

B. Issues

[9] The appellant raises three issues on appeal:

1. the motion judge engaged in a one-sided consideration of the facts;
2. the motion judge erred in his application of the test applicable to motions under s. 137.1 of the Courts of Justice Act; and
3. the motion judge erred in awarding the respondent full indemnity costs and s. 137.1(9) damages.

C. Analysis

(1) The findings of fact

[10] As we explained to the in-person appellant, this court does not revisit the findings of fact made by the court below absent palpable and overriding error. In this case, the motion judge’s findings were fully supported by the record. It is worthwhile summarizing the motion judge’s most relevant findings of fact.

[11] After reviewing the entire record, consisting of the parties’ affidavits, the transcripts of the parties’ cross examinations on those affidavits, the email and chat communications filed by the parties, transcripts of recorded conversations, and the respondent’s correspondence with the board of MAX, the trial judge found as a fact that the appellant “pursued [the respondent] romantically even though she had made it absolutely clear that she was not interested in him, that she had a partner, was engaged, and had blocked his messages.” The appellant’s persistent and frustrated romantic attachment to the respondent provides the proper context for the motion judge’s decision.

[12] Because of the appellant’s persistence the respondent had blocked him on WhatsApp and other social media in October 2018. Before us, he pointed out that he had complied with her wish not to contact her until he sent her the January 24, 2019 email. The fact he respected her request for a time does not undermine the motion judge’s finding that he “once again contacted [the respondent] about a personal matter after she repeatedly asked him to stop doing so.”

[13] A significant finding of fact is that the appellant brought his defamation action in bad faith and for an improper purpose. The motion judge specifically found as a fact that the appellant “commenced his defamation claim to punish [the respondent] for complaining to MAX about him, and to intimidate her in case she planned on going further.” The motion judge characterized the appellant’s defamation action as a “reprisal”.

(2) The application of the Anti-SLAPP test

[14] While the Supreme Court’s decision in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 (Pointes Protection Association) was released after the motion judge’s decision, it did not change the test on an anti-SLAPP motion that the motion judge applied.

(a) The expression was in the public interest

[15] The motion judge identified the impugned expression as the respondent’s correspondence with the MAX’s Board. Before us, the appellant insisted the respondent’s initial conversation with Dr. Ahmed constitutes the defamatory expression. Whether one or the other or both does not matter in the legal analysis.

[16] The motion judge found that complaint related to the character and integrity of mentors in the volunteer organization related to the public interest. He stated that “the question of ‘volunteer suitability’ particularly in the mentorship context is what underpins the public interest aspect of the impugned expression.” He noted that the respondent’s expression related to “both her private and personal interest in protecting herself, her fiancé and her family, and her broader responsibility to caution and protect other volunteers, particularly young female mentees, in the MAX community.” It was in the public interest that the respondent’s concerns about the appellant “were more widely known”.

[17] Put a little differently, we understand the motion judge to have found it is in the public interest that persons working with a volunteer organization be able to complain to the organization about personal harassment by another volunteer. In our view, MAX was mistaken to regard the respondent’s expression to its Special Committee as relating to a private and personal matter. MAX had the duty to provide an environment to its volunteers that was free from harassment.

[18] Whether the respondent’s complaint to MAX had merit is not relevant at this initial stage of the analysis. As the Supreme Court said at para. 28 of Pointes Protection Association, it is not legally relevant whether the expression is “desirable or deleterious, valuable or vexatious” or “whether it helps or hampers the public interest”, as long as it pertains to a matter of public interest. The making of a complaint of harassment to those in charge of the environment in which it has allegedly occurred is a matter of public interest.

(b) The action had substantial merit

[19] The trial judge found that the respondent’s communications with MAX about the appellant could be found to be defamatory in that they amounted to alleging he had consistently harassed her, gave her concern to fear for her safety, and alleged he was unstable.

(c) The respondent had valid defences

[20] The motion judge then turned to consider whether the appellant had established that the respondent had no valid defence.

[21] He first considered the defence of justification. It is at this stage that it would be relevant if a complaint of harassment were false. In this case the motion judge found the respondent’s comments were “substantially true”. The appellant had not met his burden of showing the defence of justification would not succeed.

[22] The motion judge also found the defence of fair comment could be made out. The respondent was “advising MAX about her reaction to receiving the disturbing ‘black magic’ email” from the appellant, and providing comment about a “volunteer who has a demonstrated unprofessional and unstable conduct”. Another person, as the motion judge found, could honestly express the same opinion on the facts. The motion judge also found the respondent’s complaint was not made in malice but rather was a “measured” response to his “black magic” email.

[23] Further, the motion judge found that the defence of qualified privilege could apply. He found that the respondent had a “social and moral duty to furnish information to MAX given [the appellant’s] mentor status” and that she was acting in good faith when she submitted her complaint to MAX.

[24] Pointes Protection Association set the threshold for assessing whether the appellant demonstrated reasonable grounds that no valid defence exists. Under Pointes Protection Association, the appellant would have had to show that none of the defences have a “real prospect of success”. This standard, established after the motion was heard, has no effect on appeal as the motion judge found it clear that the defences “would succeed”.

(d) The harm did not outweigh the public interest

[25] The motion judge recognized his findings thus far were sufficient to dismiss the appellant’s action. However, he went on to consider whether the harm suffered by the appellant outweighed the public interest in protecting the respondent’s expression. He said there was little convincing evidence the appellant had suffered damages, and found the appellant’s own conduct may have contributed to a chill and his relations with MAX.

[26] The motion judge had earlier found that the respondent’s expression had been made in good faith, without malice, and in the public interest. On the other hand, the motion judge found that the appellant brought this defamation action in bad faith and for an improper purpose to punish the respondent. While he made these findings in the context of applying s. 137.1(9) of the Courts of Justice Act they are most relevant at this stage. The public interest will not be served by allowing a defamation action to proceed that was brought in bad faith for the purpose of punishing a person who has made a good faith complaint of harassment in a common volunteering environment.

(3) The damages award

[27] Section 137.1(9) provides that the motion judge may award the defendant damages if the plaintiff brought the defamation action “in bad faith or for an improper purpose”. The motion judge exercised this jurisdiction to award the respondent $10,000 in damages. He cited this court’s decision in United Soils Management Ltd. v. Mohammed, 2019 ONCA 128 for the proposition that such an award was appropriate where the “action has been brought in bad faith or for an improper motive, such as punishing, silencing or intimidating the defendant rather than any legitimate pursuit of a legal remedy”.

[28] The record before the motion judge provided ample support for his finding the appellant brought the action in this case in bad faith motivated by the improper motive of punishing, silencing or intimidating the respondent. He pointed out there was little need to pursue a legitimate legal remedy as the "confidential nature of MAX’s investigation conducted by a Special Committee insulated him from reputational harm” and that investigation concluded he could continue as a volunteer with MAX. The record also discloses that the appellant threatened the respondent with legal action a day after he sent the black magic email and MAX had advised him not to attend an event. Days later he threatened the respondent’s mother with legal action. The motion judge also referred to the "particularly disturbing threat" the appellant made that, if his claim were dismissed, he would file complaints against her with the University of Toronto, medical boards, hospitals, and the College of Family Physicians of Canada.

[29] There is no basis for disagreeing with the motion judge's characterization of the appellant’s defamation action as a “reprisal” and his award of damages under s. 137.1(9).

(4) Full indemnity costs

[30] Section 137.1(7) creates a presumption that a party who succeeds in having an action dismissed under the section is entitled to full indemnity costs. The motion judge properly applied the presumption and awarded full indemnity costs in a fair and reasonable amount.

D. Conclusion

[31] For these reasons we dismissed the appeal.

[32] The respondent sought full indemnity costs. She submits that the policy rationale of the anti-SLAPP provision and particularly its presumption that a moving party is entitled to full indemnity costs should be applied on appeal. A party whose action was not brought to vindicate a bona fide claim, but in bad faith to punish, silence, or intimidate the defendant should face a disincentive to persisting to advance their improper purpose by appealing after their action has been dismissed. As well, the moving party should be awarded full indemnity costs on appeal to fulfil the policy rationale of 137.1(7).

[33] Without endorsing the respondent’s submission in general, costs on a higher scale are appropriate in this case because of the motion judge’s finding that the appellant’s defamation claim was a reprisal brought to punish and intimidate the respondent.

[34] The appellant was provided with the respondent’s bill for full indemnity costs in the amount of $28,000 and partial indemnity costs in the amount of $17,000, but did not make submissions on them. In our view, a costs order in the amount of $25,000 is fair and appropriate in the circumstances.

“R.G. Juriansz J.A.”

“K. van Rensburg J.A.”

“L. Sossin J.A.”