COURT OF APPEAL FOR ONTARIO DATE: 20240613 DOCKET: COA-22-CV-0340

van Rensburg, Hourigan and Favreau JJ.A.

BETWEEN

Marcel Marcellin Plaintiff (Appellant)

and

The London Police Services Board, London Police Officers John and Jane Doe, John Pare, The Woodstock Police Services Board, Woodstock Police Officers John and Jane Doe, Bill Renton, J.Y., Megan Walker, Kate Wiggins*, the London Abused Women’s Centre* and ANOVA* Defendants (Respondents*)

Counsel: Shawn Stewart and Mark Simon, for the appellant Doug Wallace and Sean Miller, for the respondents Megan Walker and The London Abused Women’s Centre Cassandra DeMelo, for the respondent Julie Young (J.Y.) Anne Marie Frauts and Adrien Cameron, for the respondent ANOVA Catherine Patterson, for the respondent Kate Wiggins

Heard: October 16, 2023

On appeal from the order of Justice Spencer Nicholson of the Superior Court of Justice, dated October 17, 2022, with reasons reported at 2022 ONSC 5886.

van Rensburg J.A.:

A. Overview

[1] This is an appeal from an order dismissing an action which sounds largely in defamation, pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, commonly known as the anti-SLAPP provision.

[2] In January 2020 the appellant, Mr. Marcellin, commenced an action (the “Action”) for damages alleging harm to his reputation and other injuries as a result of the actions (including allegedly defamatory statements) of the personal respondents, who are his former spouse, and two former employees of not-for-profit organizations. The organizations were also sued and are respondents in the appeal. In mid-2021 the respondents moved pursuant to s. 137.1 to dismiss the Action as against them.

[3] The purpose of anti-SLAPP proceedings is to screen out lawsuits that unduly limit expression on matters of public interest, through the identification and pre-trial dismissal of such actions: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 16. There are two parts to the test under s. 137.1. At the first stage, under s. 137.1(3), the moving party (the defendant in the action) must establish that the action sought to be dismissed arose from an expression that relates to a matter of public interest. If this threshold onus is met, then at the second stage, s. 137.1(4), the responding party (the plaintiff in the action) must establish 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 to the responding party as a result of the expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression.

[4] In this case the motion judge concluded that the four expressions at issue related to a matter of public interest. There is no serious challenge to this finding, and accordingly the focus of the appeal is on whether the motion judge erred in concluding that Mr. Marcellin had not discharged his burden under s. 137.1(4) and dismissing the Action.

[5] For the reasons that follow, I would allow the appeal. As I will explain, the motion judge erred in his consideration of the respondents’ defences to the defamation claims in the Action under s. 137.1(4)(a)(ii), and in his weighing, under s. 137.1(4)(b), of the public interest in the respondents’ expressions against Mr. Marcellin’s interest in proceeding with the Action. The motion judge also erred in dismissing the non-defamation claims that were asserted in the Action. On my view of the record in this matter, I would dismiss the anti-SLAPP motion and allow the Action to proceed in its entirety.

[6] I begin these reasons by setting out some of the guiding principles identified by the Supreme Court and this court respecting anti-SLAPP motions under s. 137.1. I will then provide an outline of the circumstances leading to the Action, followed by a summary of the motion judge’s reasons on the anti-SLAPP motion, noting in particular his findings of fact. I will then turn to the standard of review and a discussion and resolution of the grounds of appeal.

B. General Principles Applicable to Anti-SLAPP Motions

[7] The purposes of s. 137.1 are set out in s. 137.1(1) and 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.

[8] In short, the focus is on the protection of expression on matters of public interest and discouraging litigation as a means to limit such expression. As this court recently observed in Volpe v. Wong-Tam, 2023 ONCA 680, 487 D.L.R. (4th) 158, leave to appeal refused, [2023] S.C.C.A. No. 516, s. 137.1 seeks to prevent an abuse of process known as “strategic lawsuits against public participation” (“SLAPPs”), the practice of initiating lawsuits not to vindicate bona fide claims, but rather to deter someone from expressing a position on a matter of public interest or otherwise participating in public affairs: at para. 2.

[9] An anti-SLAPP motion provides for a pre-trial screening procedure designed to weed out SLAPPs: Hansman v. Neufeld, 2023 SCC 14, 481 D.L.R. (4th) 218, at paras. 49-50. A judge hearing an anti-SLAPP motion, unlike a judge determining a summary judgment motion, should not do a “deep dive” into the record, but, having regard to the stage of the litigation and the purpose of the motion, should instead conduct only a limited weighing of the evidence: Pointes Protection, at para. 52.

[10] Section 137.1 contemplates that the parties will put forward a record beyond the pleadings, though a limited one, given that an anti-SLAPP motion is not the place for an ultimate adjudication of the issues: Hansman, at para. 55; Pointes Protection, at para. 38. The merits-based hurdle under s. 137.1(4)(a) is not a high bar. The evidentiary burden on the responding party is lower than a balance of probabilities. The responding party need establish only “grounds to believe” – that is, some basis in the record and the law – for finding that the proceeding has substantial merit and that the moving party has no valid defence: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 103; Mondal v. Kirkconnell, 2023 ONCA 523, 485 D.L.R. (4th) 90, at paras. 30, 51 and 56.

[11] The bar at s. 137.1(4)(a) cannot be set too high because the public interest weighing stage at s. 137.1(4)(b) is the fundamental crux of the analysis. At the weighing stage, the focus of the inquiry is “what is really going on” in the case: Pointes Protection, at paras. 18, 30 and 81. It is intended to optimize the balance between the public interest in allowing meritorious lawsuits to proceed and the public interest in protecting expression on matters of public importance: Pointes Protection, at para. 18. The responding party need not prove harm or causation, but must simply provide evidence for the motion judge to draw an inference of likelihood in respect of the existence of harm and the relevant causal link: Pointes Protection, at para. 71; Hansman, at para. 67.

[12] With these general principles in mind, I now turn to the circumstances that gave rise to the Action.

C. Background Facts

[13] Mr. Marcellin was a police officer with the London Police Service (“LPS”) for 21 years, where, commencing in 2009 he had served as the LPS Diversity Officer. After retiring from the LPS in 2016 he was hired in early 2017 by the City of London (the “City”), where, in November 2017, he assumed the role of Director of Organizational Strategy & Initiatives. Mr. Marcellin’s work in this role was advocacy-centred and frequently involved leading diversity workshops with police forces, heads of municipal governments, and educational institutions. His duties also included acting as City Coordinator for a project called the “UN Women’s Safe Cities Initiative”, which was designed to create awareness of sexual violence and harassment that women and girls experience in public spaces. This role required Mr. Marcellin to work with the respondent ANOVA.

[14] The respondent Julie Young (who is now a university professor) pursued graduate studies in sociology and completed research in gender-based violence and victimization, which she attributes to her own experiences. Since the events at issue in these proceedings, she has been appointed to positions advocating against gender-based violence.

[15] Mr. Marcellin and Dr. Young married in 1994 and have two children. They separated in 2009. Their family law proceedings resulted in a consent final order dated March 1, 2011, that granted a divorce and dealt with all outstanding matters (the “Final Order”). While there is limited information in the appeal record about the historical family law proceedings, the evidence is that Dr. Young had made allegations of physical, mental and emotional abuse by Mr. Marcellin, and that she had received support during the proceedings from Kate Wiggins at ANOVA (which operates a shelter for abused women in London) and Megan Walker at the London Abused Women’s Centre (“LAWC”). The abuse was denied by Mr. Marcellin, and the issue of whether there had been domestic violence was not determined in the settled family law proceedings.

[16] In August 2017, and after negotiations between counsel, Mr. Marcellin commenced a motion to vary the Final Order, seeking to change the custody provisions and to eliminate daycare payments since the children were teenagers (the “Variation Proceedings”). Dr. Young opposed the motion, and in doing so again raised allegations of domestic abuse, including two physical assaults alleged to have taken place in 1995 and 1996.

[17] The events giving rise to the Action began in 2018. Dr. Young had brought a motion in the Variation Proceedings to remove Mr. Marcellin’s lawyer from the record because of an alleged conflict of interest. The motion was returnable on March 21, 2018. [^1] On March 6, Dr. Young, Ms. Wiggins and Ms. Walker made a phone call to Mr. Marcellin from Dr. Young’s lawyer’s office (although Dr. Young may have left the room while the call was underway). According to Ms. Walker, the purpose of the call was to explain to Mr. Marcellin the negative impact of the Variation Proceedings on his family. Mr. Marcellin indicated that he was unwilling to speak to Ms. Wiggins and Ms. Walker without his lawyer. Ms. Walker sent Mr. Marcellin two emails after the call. The first confirmed what she had said during the call – that he had to confirm by 5 p.m. his willingness to meet without his lawyer, failing which she would go to the media or another person at City Hall. The second rejected Mr. Marcellin’s suggestion of a meeting the following day at his lawyer’s office, and told him she would meet with “an individual at the City of London”.

[18] Mr. Marcellin spoke about the phone call with his supervisor, Martin Hayward. He also consulted the London Chief of Police, who advised him to press charges. Mr. Marcellin filed a complaint of harassment against Ms. Walker and Ms. Wiggins on April 17. He also met with his contact at ANOVA (not Ms. Wiggins) about whether he should continue to lead the Safe Cities project given the optics involved. She confirmed that there were concerns, but that she remained willing to work with him.

[19] Mr. Marcellin contends that in the weeks and months that followed he was repeatedly defamed by Dr. Young, Ms. Wiggins and Ms. Walker in a deliberate campaign to injure his reputation and to persuade him to abandon, or otherwise to interfere with, the Variation Proceedings. Although the Action emphasizes the cumulative effects of the campaign and claims that the respondents’ entire course of conduct caused him harm, for the purposes of the s. 137.1 motion the focus was on four defamatory “expressions” within the meaning of the anti-SLAPP provisions.

[20] The first arose in the context of a meeting on April 26, 2018 at Ms. Wiggins’ and Ms. Walker’s request with Mr. Marcellin’s direct supervisor, Mr. Hayward. A City clerk was in attendance. Mr. Hayward audio-recorded the meeting because of previous threats he had received from Ms. Walker, and a transcript was in the evidence on the anti-SLAPP motion. Ms. Walker and Ms. Wiggins told Mr. Hayward that Mr. Marcellin had assaulted Dr. Young in the past and they asserted baldly and without any evidence that Mr. Marcellin was continuing to pursue family law proceedings as a form of ongoing abuse. They claimed that since 2009 Mr. Marcellin’s behaviour had escalated to physical violence (which was untrue), and that Dr. Young felt unsafe. They provided details of the alleged physical abuse, and claimed there had been a witness (which was also untrue). They asked Mr. Hayward to use his influence to stop Mr. Marcellin’s pursuit of the Variation Proceedings. In a meeting the next day Mr. Marcellin told Mr. Hayward about the family law proceedings and insisted that Dr. Young’s allegations, as communicated by Ms. Walker and Ms. Wiggins, were false or embellished.

[21] The second impugned expression occurred in August 2018 when Dr. Young made a complaint to the police that resulted in Mr. Marcellin being arrested and charged with two counts of assault. While the Variation Proceedings were ongoing, the parties’ older child had indicated she wanted to live with her father. Mr. Marcellin and Dr. Young met on August 8 to discuss parenting and support, but Dr. Young did not agree to a change in residence for their daughter. On August 10, at the daughter’s request, Mr. Marcellin picked up the child from Dr. Young’s home. There was evidence that when she made the call, Dr. Young knew where her daughter was going. After first calling Ms. Wiggins (who advised her to call the police), Dr. Young called 911 and reported that her daughter was missing. The police had been informed that the child was with her father and so advised Dr. Young. Dr. Young asked for them to send someone from either Family Consultants or the Domestic Violence Unit. She told the officer who attended that Mr. Marcellin had assaulted her in 1995 and 1996, providing the details of the alleged assaults. Dr. Young gave the officer contact information for Ms. Walker, who said she and Ms. Wiggins were willing to be witnesses. On August 17, Mr. Marcellin was arrested and charged with two counts of assault. At their request, Ms. Wiggins and Ms. Walker were included in the no-contact provisions of his release conditions.

[22] The third set of impugned expressions were by Ms. Walker in the days following Mr. Marcellin’s arrest. On August 18, she emailed Mr. Hayward telling him about the assault charges and expressing hope that pending the outcome of the trial Mr. Marcellin would be removed from the Safe Cities initiative and “any others involving male violence against women, gender equality and/or women’s human rights”. The email also stated that Mr. Marcellin’s release conditions included a non-association order covering Ms. Wiggins and herself, and that “if we are meeting with you or anyone else at City Hall, Mr. Marcellin will have to be at least 25 meters from us … [and] from our workplaces”.

[23] On August 20, Mr. Marcellin was reassigned from the Safe Cities initiative. Mr. Hayward was quoted in an article in the London Free Press about the charges, as referring to the allegations and the situation involving a “personal” matter. On August 21, Ms. Walker emailed Mr. Hayward criticizing him for his choice of words in communicating with the press and asserting that his “failure to understand the issue [was] startling”. She also posted a tweet that day on the social media platform formerly known as “Twitter” announcing the charges and attaching a photo of Mr. Marcellin. The same day Ms. Wiggins sent an email to Ms. Walker saying “we will have to stay the course” and “I think she [referring to Dr. Young] has enough evidence to bury him”.

[24] On August 22, the London Free Press published a story titled “London city hall official ‘reassigned’ after assault charges”, quoting Ms. Walker as saying she was aware of the charges and that her agency had a long-term relationship with the complainant. The next day Ms. Walker reposted the story with Mr. Marcellin’s picture, which followed a tweet referring to Bill Cosby and saying, “It’s sad that some people choose to support ‘great guy’ persons at [the] expense of women”.

[25] The fourth alleged defamatory expression was in the form of letters and emails marked “Confidential” and sent by Dr. Young in the fall of 2018 and spring of 2019 to various individuals, including a Member of Parliament, a City Councillor, members of the LPS, the Mayor, and to a provider of pro bono legal services. [^2] Each of the letters contained a detailed account of the abuse Mr. Marcellin had allegedly inflicted on Dr. Young and referred to the criminal charges and Mr. Marcellin’s reassignment from the Safe Cities initiative pending the outcome of the criminal proceedings. These communications came to light in the parties’ discovery in the Action but were not disclosed or referred to in Dr. Young’s affidavits. Some of the letters were sent in November 2018 around the time of an email exchange between Dr. Young and Ms. Walker “re: Campaign” in which Dr. Young suggested mobilizing hundreds of women to call and write to elected officials and to tweet their statements of support. The email ended with various hashtags including #stopMarcellin, #timesup, and #cancelMarcellin. Ms. Walker responded that they should talk about this as part of a “larger strategy”. In early December 2018 Dr. Young emailed Ms. Walker and Ms. Wiggins requesting a “strategy meeting”, noting that Mr. Marcellin’s family law lawyer was back on the file, that she had a group of community members ready to help, and suggesting the group was “a coalition of sorts”.

[26] In January 2019, just before he was to return to work from a stress-induced medical leave, Mr. Marcellin was terminated from his employment with the City. The termination letter stated he was terminated without cause due to restructuring and the resulting elimination of his position.

[27] In June 2019, after Mr. Marcellin entered into a peace bond and agreed to complete a men’s domestic abuse anger program, the assault charges were withdrawn. The peace bond expired on December 31, 2019.

[28] Mr. Marcellin commenced the Action in January 2020. Central to the claims is Mr. Marcellin’s assertion that Dr. Young made allegations against him relating to alleged historical assaults in the 1990s that were either blatantly false or so heavily embellished as to distort the truth, and that these allegations were made out of animus toward him and in a deliberate attempt to harm him as retribution for pursuing his rights in the family law proceedings. The Action claims that Ms. Walker and Ms. Wiggins acted outside the mandate of their respective organizations and influenced or contributed to the false allegations, inappropriately wielding their influence and maliciously or recklessly defaming Mr. Marcellin in the mainstream media. It is alleged that LAWC and ANOVA are responsible at law for the actions of their respective employees. The allegations against the respondents are framed in defamation and a variety of other causes of action, including harassment, invasion of privacy, intentional interference with economic relations, and inducing breach of contract.

[29] The Action also alleges negligent investigation on the part of the LPS in relation to the assault charges, and negligent investigation on the part of the Woodstock Police in respect of Mr. Marcellin’s criminal harassment complaint against Ms. Wiggins and Ms. Walker. The other defendants did not bring a motion under s. 137.1. At the hearing of the appeal, the panel was advised that Mr. Marcellin commenced a separate action for wrongful dismissal against the City and that the two actions are proceeding together.

D. The Motion Judge’s Reasons

[30] The anti-SLAPP motion was argued on a voluminous record before the motion judge over the course of three days.

[31] The motion judge noted that the purpose of the legislation is to screen out lawsuits that unduly limit expression on matters of public interest. He identified as the “real issue”, whether a plaintiff “should have their day in court to potentially vindicate their reputation”. The motion judge referred to the relevant jurisprudence from the Supreme Court (including Pointes Protection and Bent), and he correctly set out the relevant statutory test and principles. The motion judge also provided a brief summary of the legal principles relevant to defamation claims and the defences of justification, qualified privilege and fair comment.

[32] There is no issue in this appeal with respect to the motion judge’s articulation of the relevant legal principles; rather the challenge is to his application of the principles to the evidence.

[33] On the first issue, whether the proceeding arose from an expression in the public interest, it was conceded that the conduct at issue involved “expressions”. As outlined earlier in these reasons, the expressions at issue were the following: (1) the statements made by Ms. Wiggins and Ms. Walker to Mr. Hayward in the April 26 meeting; (2) Dr. Young’s reporting in August 2018 of the alleged historical assaults to the police that resulted in Mr. Marcellin being charged; (3) the comments made by Ms. Walker to Mr. Hayward, the media and through Twitter following Mr. Marcellin’s arrest; and (4) the letters sent by Dr. Young to various individuals in the fall of 2018 and spring of 2019.

[34] The motion judge concluded that the moving parties satisfied the onus of establishing that the Action arose from expressions relating to matters of public interest: the expressions arose in the context of allegations of intimate partner abuse against a person holding a position directly responsible for a program dealing with violence against women.

[35] While Mr. Marcellin’s factum suggested that there might have been an error at the first stage, his counsel stepped back from this position at the hearing of the appeal. As such, it is unnecessary to consider whether the motion judge erred in determining that the respondents discharged their burden under s. 137.1(3). For the purpose of the appeal, it is accepted that the expressions here related to a matter of public interest.

[36] Turning to the second issue, pursuant to s. 137.1(4)(a)(i), the motion judge concluded that there were grounds to believe that Mr. Marcellin’s claims for defamation had substantial merit. He observed that all of the impugned expressions met the criteria for defamation. He concluded that the “sting” of the expressions was that Mr. Marcellin was an abuser, physically, emotionally and financially; that any person accused of such actions would be held in low esteem; and that the particular expressions alleged criminal conduct, which was “even more damaging” to a person’s reputation.

[37] Although the motion judge stated that, having determined that one of the causes of action had substantial merit, the test under s. 137.1(4)(a)(i) was satisfied and the motion would proceed to the next stage of the analysis, he nevertheless addressed the other non-defamation claims that were pleaded in the statement of claim. After considering the elements of each cause of action, and in some cases the evidence in relation to these claims, he concluded that none of the non-defamation claims against the respondents had a reasonable prospect of success.

[38] The motion judge then considered under s. 137.1(4)(a)(ii) whether Mr. Marcellin had established that there were grounds to believe the respondents had no valid defence in the proceeding. He considered the various defences to defamation raised by the respondents in respect of each impugned expression, [^3] and he noted that Mr. Marcellin needed only to adduce some basis in the evidence and law to show there is no valid defence to succeed on this part of the test.

[39] All of the respondents had raised the defence of justification. The motion judge explained why he declined to consider this defence. He noted that, while in some cases the truth or falsity of a statement might be easily ascertained, allegations of domestic abuse are difficult to determine, and that, while an extensive documentary record was before him, both Dr. Young and Mr. Marcellin had substantial shortcomings as witnesses, based on the transcripts from the cross-examinations out of court. The motion judge concluded that the determination of the particular issues would require oral evidence in court. The motion judge stated that, alternatively, he concluded that Mr. Marcellin’s denials provided “some basis” in the evidence that the allegations of abuse were not substantially true.

[40] Next, the motion judge considered qualified privilege as a defence that the respondents raised to some of the allegedly defamatory expressions. First he addressed Ms. Wiggins’ and Ms. Walker’s statements at the April 26 meeting, which he described as forming the basis of Mr. Marcellin’s lawsuit against them. Although he accepted that qualified privilege could arise in the context of Mr. Marcellin’s role with the Safe Cities program and Mr. Hayward’s role as Mr. Marcellin’s direct supervisor, the motion judge determined that there was a basis in the evidence to conclude that qualified privilege would not attach to the occasion of the meeting. First, Ms. Wiggins and Ms. Walker arguably exceeded their duties by requesting that Mr. Hayward intervene in the Variation Proceedings, and they made statements that went far beyond the evidence that was available to them, relaying information for which there was no factual foundation, including that there had been physical violence since 2009 and that Mr. Marcellin was responsible for all of the family court proceedings. Second, there was evidence of malice: that Ms. Wiggins and Ms. Walker had an ulterior purpose for the meeting (to get Mr. Hayward to influence Mr. Marcellin to drop the family law proceedings), as well as ill-will towards Mr. Marcellin as demonstrated by Ms. Wiggins’ email about Dr. Young having “enough evidence to bury” Mr. Marcellin. According to the motion judge, it was significant that the meeting was timed around the family court hearing dates.

[41] The motion judge also concluded that there was a basis in the evidence to conclude that the defence of fair comment, raised by Ms. Wiggins in relation to the April 26 meeting, would not succeed, because what Ms. Wiggins told Mr. Hayward about Mr. Marcellin being an abuser was an allegation of fact, not an expression of opinion, and because this defence would also be defeated by malice.

[42] The motion judge next considered the defence of qualified privilege in respect of Dr. Young’s report to the police. In a short paragraph he stated that Mr. Marcellin had failed to demonstrate that Dr. Young did not have a valid defence in respect of this expression, noting that qualified privilege applies when a person reports a criminal offence to a police officer; that Dr. Young had the requisite and legitimate interest in reporting the offence, even if it was historical; and that the police had a corresponding duty to receive the report.

[43] As for the email from Ms. Walker to Mr. Hayward dated August 18, 2018, informing him of the charges against Mr. Marcellin and suggesting that he be removed from the Safe Cities project, the motion judge concluded that qualified privilege would apply to this communication. He saw no indication of malice in relation to this email and he concluded that Ms. Walker was simply advising Mr. Hayward of a fact that was true.

[44] The motion judge turned to Ms. Walker’s tweets. He concluded that, while qualified privilege would not apply to tweets that were posted to Ms. Walker’s followers at large, the tweets regarding the charges were not actionable because they communicated information that was true. He stated that, while he could not say for sure whether the Cosby tweet and the tweet about Mr. Marcellin were merely coincidental or deliberately coordinated, there was some basis in the evidence to determine that Ms. Walker acted with malice.

[45] The motion judge did not expressly state his conclusion about whether s. 137.1(4)(a)(ii) had been met in relation to Ms. Walker’s tweets. However, he later stated that the only impugned expressions in respect of which Mr. Marcellin had discharged his burden were those made at the April 26 meeting.

[46] The motion judge then considered the defence of qualified privilege in relation to the letters sent by Dr. Young. He noted that they contained “a very substantial amount of information” and were sent to a wide range of recipients. He stated that, although he was not prepared to determine whether the allegations were true or false, he was “not prepared to say they [were] false”, and that Dr. Young had “communicated appropriate information to appropriate people”. As for whether qualified privilege was defeated by malice, the motion judge noted that the fact the parties were embroiled in family litigation was not itself “sufficient evidence of the requisite malice to defeat the qualified privilege”, and that, while the emails between Dr. Young and Ms. Walker speaking of a “campaign” were more troubling, there was “insufficient evidence in the record that any further actions were done as part of any ‘campaign’”. The motion judge concluded that Mr. Marcellin had not met the onus of establishing that there was a basis in the evidence or law to demonstrate “sufficient malice” to defeat the defence of qualified privilege in respect of the letters. [Emphasis added.]

[47] The motion judge concluded that Mr. Marcellin had provided sufficient grounds to believe that Ms. Walker and Ms. Wiggins had no valid defence in respect of the April 26 meeting, and that with respect to all of the other expressions, the respondents had a valid defence. He noted that this was sufficient to result in the dismissal of the Action as against Dr. Young.

[48] The motion judge went on to conduct the analysis under s. 137.1(4)(b) in respect of all of the expressions. That is, he weighed the public interest in allowing meritorious lawsuits to proceed against the public interest in protecting expression on matters of public interest.

[49] First, the motion judge considered the harm suffered by Mr. Marcellin. He noted that harm encompasses both monetary and non-monetary harm. He acknowledged that damages to one’s reputation can be significant, that damages in cases of defamation may be presumed, and that allegations of criminal activity, as in this case, carry a greater stigma. The motion judge concluded however that Mr. Marcellin’s affidavit was lacking a basis to gauge the magnitude of his harm. Although Mr. Marcellin had deposed that his career and life were ruined, that he had lost his job with the City due to the conduct of the respondents, and that his decades-long advocacy work had been undermined, the motion judge concluded that there was “very little evidence with respect to ascertaining actual damages”, such as loss of income, that Mr. Marcellin might have considerable difficulty demonstrating he lost his employment at the City as a result of the impugned expressions, and that in any event he had mitigated his damages by finding new employment. He stated that Mr. Marcellin’s monetary harm would appear to fall within the low end of the range and that even his non-monetary harm would appear to be minimal.

[50] The motion judge stated that, on the other hand, the public has a very strong interest in protecting victims of intimate partner violence, including promoting expression and debate on the topic of sexual and domestic violence and abuse. He noted that victims of domestic violence and abuse and their advocates “need to be able to recount their stories without undue fear of reprisal”. The motion judge noted that “actions that are intended to prevent or discourage, or have the effect of preventing or discouraging, victims, primarily women, from reporting incidents [of] abuse must be scrutinized with caution”.

[51] As additional relevant factors the motion judge referred to the fact that the Action followed a lengthy history of family litigation, albeit one that was mutual, and the potential chilling effect that allowing the Action to proceed could have on victims of abuse. He noted that it was critically important to consider what he referred to as the “scorched earth” nature of the Action, with many defendants and 11 causes of action, and he concluded that the broad swath of defendants signified a significant retaliatory aspect to the Action.

[52] The motion judge characterized the Action as the culmination of escalating family law proceedings between Mr. Marcellin and Dr. Young. He stated that, while he did not criticize Mr. Marcellin for commencing the Variation Proceedings given that his income had lowered, it was troubling that this coincided with Dr. Young’s re-marriage. He referred to Ms. Wiggins’ and Ms. Walker’s inappropriate attempts to interfere in the family law proceedings, and Mr. Marcellin’s inappropriate retaliation against them by attempting to press charges for criminal harassment. He noted that after the oldest child of the marriage expressed an interest in moving in with her father, Mr. Marcellin was charged with historical assault. He noted that “[t]he optics of the timing of the assault allegations [were] … poor given [the] daughter’s expressed wishes”. The motion judge considered it disturbing that Mr. Marcellin commenced the Action after the peace bond expired and that he and his lawyers held a press conference to announce the Action.

[53] The motion judge concluded that “what [was] really going on” was that Mr. Marcellin brought the Action as a vengeful intensification and for the primary purpose of silencing the moving parties. He observed that allowing such vindictive actions to continue stifled victims and impeded the critically important work of organizations such as LAWC and ANOVA and that it would do irreparable harm to Mr. Marcellin, Dr. Young and their children. He described the Action as a “misuse of judicial resources” and stated, “[q]uite simply, the ongoing litigation between Mr. Marcellin and Dr. Young needs to end.” Finally, the motion judge stated that, although he did not approve of Ms. Wiggins and Ms. Walker going to Mr. Marcellin’s supervisor, he could not conclude that the harm likely to be or to have been suffered by Mr. Marcellin as a result of their expressions was sufficiently serious that the public interest in permitting the Action to continue outweighed the public interest in protecting the expressions.

[54] Finally, the motion judge considered the non-defamation causes of action and concluded that they also “arise from the expressions and are caught by my decision”. He reasoned that because s. 137.1 speaks only of “proceedings” and not individual causes of action, the appropriate order was to dismiss the Action in its entirety.

[55] Accordingly, the motion judge dismissed the Action. In a later decision he awarded full indemnity costs against Mr. Marcellin in the sum of $258,925.37 (inclusive of HST and disbursements), and damages in favour of Dr. Young in the sum of $5,000.00. [^4]

E. Issues

[56] Mr. Marcellin raises a number of issues on appeal. For convenience they can be summarized as follows:

1. In considering whether Mr. Marcellin discharged his burden under s. 137.1(4)(a)(ii), did the motion judge err in failing to find that there were grounds to believe that the respondents had no valid defence to any of the impugned expressions?
2. In considering whether Mr. Marcellin discharged his burden under s. 137.1(4)(b), did the motion judge err (a) in failing to apply the correct legal principles in assessing the harm to Mr. Marcellin as a result of the impugned expressions; and (b) in failing to consider the individual expressions themselves and the motives and malice of the respondents, and in considering irrelevant factors, when weighing the value of the expressions against the harm to Mr. Marcellin if the Action were not permitted to proceed?
3. Did the motion judge err in dismissing the non-defamation causes of action?

F. Discussion

[57] A motion judge’s determination on a s. 137.1 motion is entitled to deference on appeal absent an error in law or a palpable and overriding error of fact or mixed fact and law: Bent, at para. 77; Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 165 O.R. (3d) 753, at para. 42, leave to appeal refused, [2023] S.C.C.A. No. 172. If such an error is established, it is up to this court to consider the matter afresh: 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, 485 D.L.R. (4th) 551, at para. 35, leave to appeal refused, [2023] S.C.C.A. No. 432; Nanda v. McEwan, 2020 ONCA 431, 450 D.L.R. (4th) 145, at para. 47.

[58] After careful consideration of the motion judge’s reasons and the written and oral submissions of the parties, I am persuaded that the motion judge made reversible errors, first in his determination under s. 137.1(4)(a)(ii) that Mr. Marcellin had not discharged his onus to demonstrate that there was reason to believe that there was no valid defence to all of the impugned expressions, and second, in his weighing under s. 137.1(4)(b) of the respondents’ interest in free expression against Mr. Marcellin’s interest in pursuing the Action.

(i) The Question of Valid Defences

[59] Pursuant to s. 137.1(4)(a), it is the responding party’s onus to establish that there are grounds to believe that (i) the proceeding has substantial merit, and (ii) the moving parties have no valid defence to the proceeding. “Grounds to believe” means something more than mere suspicion, but less than proof on a balance of probabilities: Hansman, at para. 94, citing Pointes Protection, at para. 40. Any basis in the record and the law is sufficient to meet this standard, so long as it is “legally tenable and reasonably capable of belief”: Bent, at para. 88.

[60] There is no serious challenge to the motion judge’s finding that Mr. Marcellin established that there were grounds to believe that at least one of the causes of action pled in his Action – namely, defamation – had substantial merit. The burden under s. 137.1(4)(a)(ii) required him to establish, based on the record and the law, and taking into account the stage of the proceeding, that the defences put in play by the respondents did not tend to weigh more in their favour: Bent, at para. 103.

[61] The motion judge noted that a great deal of the evidence and argument on the motion related to whether the allegations of domestic abuse were true. He reasonably concluded that he could not make even a provisional determination of the respondents’ defence of justification, and that accordingly Mr. Marcellin had met his burden with respect to this defence.

[62] The other defence that was “in play” with respect to the impugned expressions was qualified privilege. As I will explain, while the motion judge correctly applied the relevant principles in determining that there were grounds to believe that the defence of qualified privilege would not apply in respect of the expressions at the April 26 meeting, his consideration of the defence of qualified privilege in relation to Dr. Young’s police complaint was incomplete and he applied an incorrect legal standard in concluding that Mr. Marcellin had not met his burden in respect of the defence of qualified privilege in relation to the letters. I will also briefly address Ms. Walker’s “Cosby tweet” in respect of which the motion judge found malice. In my view, on the record available at this early stage in the proceedings, Mr. Marcellin has met his burden under s. 137.1(4)(a)(ii) with respect to all of the impugned expressions.

(a) Qualified Privilege

[63] I will begin by setting out a summary of the relevant legal principles respecting qualified privilege as discussed in Bent, at paras. 121-28, and in Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, at paras. 143-47:

• The threshold for qualified privilege is high. The privilege is grounded not in free expression values, but in the social utility of protecting particular communication occasions from civil liability;
• The focus is on the circumstances in which the communication was made. A precise characterization of the occasion is essential;
• The privilege is “qualified” because it can be lost if the communication exceeds the legitimate purposes of the privilege or where the dominant motive for publishing the defamatory expression is actual or express malice. The focus is on the “content of the communication, and on the conduct and motives of the speaker”;
• A defendant cannot rely on qualified privilege if the information communicated is “not reasonably appropriate to the legitimate purposes of the occasion”. A statement cannot be “reasonably appropriate” unless it is “relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege”; and
• Malice includes spite or ill-will, as well as any indirect motive or ulterior purpose that conflicts with the sense of duty or mutual interest the privileged occasion created, and is also established by showing the defendant spoke dishonestly or in knowing or reckless disregard for the truth.

[64] Mr. Marcellin contends that, given his findings of malice in respect of the April 26 meeting and the context in which Dr. Young’s expressions were made and their motivation, the motion judge erred in failing to find that there was reason to believe that the defence of qualified privilege would not apply to Dr. Young’s police complaint and the letters she sent to various recipients.

[65] Dr. Young asserts that there was no error in the motion judge’s conclusion that she had a defence of qualified privilege to these impugned expressions. She highlights the absence of a finding of malice in respect of the police complaint and the letters, and she asserts that the motion judge’s analysis was sufficient and is entitled to deference.

[66] I begin by considering Dr. Young’s communications with the police in August 2018. In contrast to his detailed analysis of the defence of qualified privilege in relation to the April 26 meeting (which covered some 13 paragraphs in his reasons), the motion judge dealt with this defence in relation to Dr. Young’s police complaint in a single paragraph as follows:

I turn next to the reporting by Dr. Young to the police of the historical incidents of assault. In my view, Mr. Marcellin has failed to demonstrate that Dr. Young does not have a valid defence in respect of this expression. Qualified privilege applies when a person reports a criminal offence to a police officer. Dr. Young had the requisite and legitimate interest in reporting the offence, even if it was historical. The police clearly had a corresponding duty to receive the report.

[67] With respect, the motion judge’s analysis of the defence of qualified privilege in respect of the police complaint was incomplete. He did not go on to consider, as he had in respect of the April 26 meeting, whether there were grounds to believe that the privilege had been exceeded and that the defence would be defeated by malice.

[68] The circumstances in which the complaint was made by Dr. Young called for a more nuanced analysis. While there is an obvious public interest in members of the public feeling free to report conduct which is of concern to the police (see e.g., Zeppa v. Rea, 2023 ONCA 668, 168 O.R. (3d) 481, at para. 19, leave to appeal refused, [2023] S.C.C.A. No. 511, holding that police complaints would normally meet the threshold test under s. 137.1(3) of being expressions in the public interest), the motion judge did not consider whether there was a basis in the evidence to believe that the defence of qualified privilege would be lost because of the timing of the police report and the circumstances in which it was made.

[69] Although the allegations were of assaults alleged to have occurred in 1995 and 1996, the police complaint was made two decades later at a time when the Variation Proceedings were ongoing. Dr. Young had lost her motion to remove Mr. Marcellin’s solicitor and the parties’ older daughter had expressed a desire to live with her father, which Dr. Young opposed. The timing of Dr. Young’s report of the alleged historical assaults (i.e., shortly after her 911 call on August 10, 2018 after Mr. Marcellin picked up their daughter) suggests that Dr. Young’s motive in making the complaint was not to hold Mr. Marcellin criminally responsible for having assaulted her (indeed her evidence was that she did not want him to be charged), but to gain an advantage in the family law proceedings. As the motion judge observed, “the optics of the timing of the assault allegations are … poor”.

[70] When considered in the context of the events that had occurred in the previous months and those that followed, there are also grounds to believe that the police complaint was part of a course of conduct pursued in order to cause harm to Mr. Marcellin’s employment and reputation. Indeed, the resulting criminal charges marked a turning point in the events that followed. Because of the charges, Mr. Marcellin was removed from his position at the City leading the Safe Cities initiative. Ms. Walker publicized the charges and communicated with Mr. Hayward to ensure that this would happen. In the letters Dr. Young sent out to various community leaders she referred to the criminal charges, without the context that they involved historical allegations of assault. In other words, there was evidence to support Mr. Marcellin’s contention that the police complaint was part of a “campaign” against him – one animated by malice sufficient to defeat the defence of qualified privilege in respect of the complaint.

[71] Again, the burden under s. 137.1(4)(a)(ii) is not high. Mr. Marcellin’s onus was not to establish conclusively that Dr. Young had an improper motive and acted with malice. It was to show that there were grounds to believe that any defence to the impugned expressions, including the making of the police complaint, would not succeed. The motion judge erred by not considering evidence of Dr. Young’s motive and malice in making the complaint. On the record in this case I am satisfied that there are grounds to believe that the defence of qualified privilege will not succeed in relation to this impugned expression.

[72] I turn to the defence of qualified privilege in respect of Dr. Young’s letters.

[73] Again, in my view the motion judge erred in concluding that Mr. Marcellin had not met his burden of showing that there were grounds to believe that this defence would not succeed.

[74] The motion judge recognized that the letters (other than an email seeking a potential expert in the family law proceeding and seeking pro bono legal counsel) were “problematic”. Nevertheless, he concluded that the letters attracted qualified privilege. This was based on the fact that Dr. Young’s letters had described her purpose as providing “information relevant in evaluating Mr. Marcellin’s leadership within the City of London of any projects or programs concerning the safety of women and children”, and that the letters were sent to people with prominent positions within the governing structure, to a group that could reasonably be considered to have had a corresponding duty to receive the information.

[75] Mr. Marcellin contends that the motion judge erred by not considering each letter individually, and specifically identifying for each the occasion of privilege that attached. While there may be some merit to this concern, I am satisfied that the conclusion that qualified privilege could attach to these communications was open to the motion judge. I do however agree with Mr. Marcellin’s alternative submission that the motion judge erred in his consideration of whether there were grounds to believe that malice defeated the defence of qualified privilege.

[76] The motion judge noted that the fact that Dr. Young and Mr. Marcellin were embroiled in family litigation was not “sufficient evidence of the requisite malice to defeat the qualified privilege”. Although he found more troubling on the issue of malice the emails between Dr. Young and Ms. Walker speaking of a “campaign”, he found “insufficient evidence in the record” that Dr. Young’s further actions were done as part of any “campaign”. He concluded that Mr. Marcellin had not met the onus of establishing that there was a basis in the evidence or law to demonstrate “sufficient malice” so that the defence of qualified privilege would not apply to the letters. [Emphasis added.]

[77] In my view the repeated references to the sufficiency of the evidence suggests that the motion judge applied a standard that exceeded the “grounds to believe” standard under s. 137.1(4)(a)(ii). As noted earlier, “grounds to believe” means something more than mere suspicion, but less than proof on the balance of probabilities: Pointes Protection, at para. 40. Having regard to the stage of the proceedings when an anti-SLAPP motion is brought, any basis in the record and the law is sufficient to meet this standard, so long as it is “legally tenable and reasonably capable of belief”: Bent, at para. 88.

[78] The central question with respect to malice was whether there were grounds to believe that, in sending the letters, Dr. Young was acting out of spite or ill-will, or had any “indirect motive or ulterior purpose” that conflicted with the sense of duty or mutual interest the privileged occasion created. In my view, in considering the question of malice, the motion judge failed to give proper consideration to the content of the letters (apart from Dr. Young’s stated purpose), their timing, and the context in which they were sent.

[79] Although Dr. Young stated in each letter that she was reaching out to the recipient to bring forward information relevant to evaluating Mr. Marcellin’s leadership, and spoke to her own experience of alleged domestic abuse, the letters contained some information that was misleading and incomplete, accusing Mr. Marcellin of having “groomed” her in the early years (when, as the motion judge noted, there was a 3.5 year age difference between the two) and stating that criminal charges were laid as a result of an investigation conducted in August 2018 when the police were called (without disclosing that the charges were in respect of alleged historical assaults). The letters asserted that Mr. Marcellin was continuing his abuse through the family court system. Dr. Young’s express purpose in sending out the letters to a significant number of community leaders was to ensure that Mr. Marcellin would not be considered for leadership positions that were consistent with his responsibilities at the City and positions he had held in the past.

[80] The motion judge failed to give proper consideration to the timing of the letters. First, a number of the letters were sent out after Mr. Marcellin had been removed from the Safe Cities initiative, while he was on stress leave, and before his employment was terminated. Second, the Variation Proceedings, in which the residence of the older child was at issue and Dr. Young had renewed her allegations of abuse, were ongoing. Third, most of the letters were sent around the time of Dr. Young’s email to Ms. Walker with the subject line “re: Campaign” that proposed that “hundreds of women” be mobilized to call and write to their city councillor, mayor, MP and MPP. The email set out information that could be used in the calls and letters, that was consistent with the information set out in Dr. Young’s own letters.

[81] There was plainly a basis in the record and the law to support a finding that the letters were motivated by malice sufficient to defeat the defence of qualified privilege. I find that Mr. Marcellin has met his burden to show that there are grounds to believe this defence will not succeed with respect to the letters to community leaders that were sent out by Dr. Young.

[82] Finally, the motion judge did not complete his analysis of the defences raised in respect of Ms. Walker’s tweets. After concluding that the defence of qualified privilege would not apply to the tweets, which were made to the public at large, he stated only that the tweet that advised of Mr. Marcellin’s charges was not actionable as defamation because it was true, and that, in relation to Ms. Walker’s tweet about Mr. Marcellin that followed her “Cosby tweet”, it was not necessary to determine on the motion whether the two tweets were merely coincidental or deliberately coordinated, but that in any event there was some basis in the evidence to determine that Ms. Walker acted with malice.

[83] In my view, Mr. Marcellin met his onus under s. 137.1(4)(a)(ii) in respect of Ms. Walker’s tweet. There are grounds to believe that the two tweets were deliberately coordinated, and that Ms. Walker was communicating that Mr. Marcellin was, like Bill Cosby, supported as a “great guy” but had abused women. No arguable defence was raised, and, as the motion judge observed, there was a basis to conclude that Ms. Walker was animated by malice.

(ii) Weighing the Competing Interests under Section 137.1(4)(b)

[84] Section 137.1(4)(b) required Mr. Marcellin, as the respondent to the anti-SLAPP motion, to satisfy the motion judge that, due to the harm he had suffered or was likely to suffer as a result of the impugned expressions of the respondents, the public interest in allowing the Action to continue outweighed its deleterious effects on expression and public participation: Hansman, at para. 59; Pointes Protection, at para. 82.

[85] The weighing exercise under s. 137.1(4)(b) is the “crux” or “core” of the s. 137.1 analysis. As Côté J. explained in Pointes Protection, at para. 81:

[T]he open-ended nature of s. 137.1(4)(b) provides courts with the ability to scrutinize what is really going on in the particular case before them. Section 137.1(4)(b) effectively allows motion judges to assess how allowing individuals or organizations to vindicate their rights through a lawsuit – a fundamental value in its own right in a democracy – affects, in turn, freedom of expression and its corresponding influence on public discourse and participation in a pluralistic democracy. [Emphasis added.]

[86] Mr. Marcellin contends that the motion judge erred in concluding that he would have a difficult time establishing more than nominal damages and that any harm was caused by the defamatory statements of the respondents. He also asserts that the motion judge erred in his identification of the public interest by failing to focus on the content, manner and motive behind the particular expressions, and as a result in his weighing of the competing interests.

[87] The respondents argue that the motion judge’s s. 137.1(4)(b) analysis was careful and thoughtful, and that it was open to him to conclude based on the evidentiary record that there was little evidence of demonstrable harm. They assert that, having identified the correct test and considered the appropriate factors, the decision was the motion judge’s call to make and is entitled to deference on appeal.

[88] In the discussion that follows, I will address the alleged errors and explain why I agree that the motion judge made the errors alleged by Mr. Marcellin and that, on a proper assessment of the evidence, Mr. Marcellin has met his burden under s. 137.1(4)(b).

(a) Harm to Mr. Marcellin

[89] The relevant principles on the issue of harm are well-established: see Park Lawn, at para. 46; Pointes Protection, at paras. 68-72; Bent, at paras. 142-62; and Hansman, at paras. 67-68. These principles can be briefly summarized as follows:

• Section 137.1(4)(b) requires both: (i) the existence of harm, and (ii) causation, that is, the harm was suffered as a result of the moving party’s expression;
• Either monetary or non-monetary harm will suffice. The harm need not be monetized or quantified, although there must be evidence that the harm is of a magnitude sufficient to outweigh the public interest in protecting the impugned expressions;
• Reputational harm is also relevant to the harm inquiry even if at this stage it is not quantifiable. Reputation is one of the most valuable assets a person or a business can possess;
• General damages are presumed in defamation actions. This alone is sufficient to constitute harm, although it is not sufficient to establish that the harm is serious;
• A fully developed damages brief is not required; and
• A responding party need not prove harm or causation but must simply provide evidence from which an inference of the likelihood of harm and causation may be drawn. This inquiry is undertaken by the motion judge on a case-by-case basis.

[90] In my view the motion judge departed from these principles when he concluded that there was no basis to gauge the harm that Mr. Marcellin had suffered, that Mr. Marcellin may well have considerable difficulty demonstrating he lost his employment at the City as a result of any of the expressions, that he had “mitigated his damages as he [had] found new employment”, and that even his non-monetary harm appeared fairly minimal.

[91] There was considerable evidence of harm to Mr. Marcellin’s reputation, employment and job prospects. First, in his affidavit on the motion Mr. Marcellin deposed that his career and life had been ruined, and he attributed losing his job with the City to the conduct of the respondents. He stated as follows:

Beyond the impact on my position with the City of London, these allegations, and the continued pattern of defamation by the [respondents], has resulted in my decades-long advocacy work being completely undermined. I am no longer able to pursue my advocacy role in the same way, as community groups are understandably reluctant to invite a speaker, trainer or advocate who [themself] carries unresolved allegations of ongoing abuse.

[92] It is important to note that Mr. Marcellin’s evidence of harm was not seriously challenged by the respondents. Nevertheless, the motion judge criticized Mr. Marcellin for not having provided evidence of community groups that retained him to speak in the past and his income with the City. With respect, this set the bar too high. Mr. Marcellin’s burden was to provide evidence from which an inference of the likelihood of harm and causation could be drawn. In my view he did so.

[93] Second, the impugned expressions were by their nature harmful to Mr. Marcellin’s reputation, as the motion judge recognized when he concluded, at para. 95 of his reasons, that the impugned expressions were defamatory:

[T]here is no question that the expressions would all be considered to detract from Mr. Marcellin’s reputation. The “sting” of the expressions is that Mr. Marcellin is an abuser, including physically, emotionally and financially. Most of the expressions went into considerable detail about the allegations made by Dr. Young. Any person accused of such actions would be held in low esteem. The particular expressions in this case allege criminal conduct on the part of Mr. Marcellin, which are even more damaging to a person’s reputation.

[94] Statements alleging serious misconduct, including criminal actions, are obviously so likely to cause serious harm to a person’s reputation that the likelihood of harm being caused can be inferred: Lascaris v. B’nai Brith Canada, 2019 ONCA 163, 144 O.R. (3d) 211, at para. 41, leave to appeal refused, [2019] S.C.C.A. No. 147; Levant v. DeMelle, 2022 ONCA 79, 79 C.P.C. (8th) 437, at para. 68, leave to appeal refused, [2022] S.C.C.A. No. 88. See also Hobbs v. Warner, 2021 BCCA 290, 56 B.C.L.R. (6th) 287, at para. 84, leave to appeal refused, [2021] S.C.C.A. No. 413. While the motion judge acknowledged that even an implication of criminal conduct can be extremely damaging to one’s reputation, he concluded, unjustifiably in my view, that Mr. Marcellin’s harm was “minimal”.

[95] Third, in his assessment of the harm resulting from the impugned expressions, the motion judge did not take into consideration evidence of the respondents’ motivations, which were apparent in the content of the expressions and in the surrounding circumstances. The impugned expressions sought to persuade others that Mr. Marcellin was unsuitable for the position he held at the City because he had abused his ex-wife in the past and he was continuing to do so, including by commencing the Variation Proceedings. Dr. Young’s letters, stating her concern as a citizen “that a leader within our community is actively seeking opportunities to work with vulnerable citizens”, sought to prevent Mr. Marcellin from holding similar positions elsewhere. As this court stated in Park Lawn, at para. 52 and Buttar, at para. 84, it would be ironic for a defendant to make the impugned statements in the hope that they would convince others of the plaintiff’s misconduct and then, for the purposes of the anti-SLAPP motion, to assert that they could not have had any effect on his reputation.

[96] Reputational harm is “eminently relevant to the harm inquiry” under s. 137.1(4)(b). Indeed, a person’s reputation is one of the most valuable assets a person can possess: Bent, at para. 146. Nominal damages are awarded where a court determines that defamation occurred but there is no evidence of harm. In this case, by contrast, there is clearly a basis in the record to conclude that the impugned expressions have already caused Mr. Marcellin harm which might well continue into the future, and that, if the Action were successful, he would recover much more than nominal general damages for the harm to his reputation.

[97] Fourth, the motion judge also erred in his approach to Mr. Marcellin’s special damages by making findings on the limited record at the motion that the defamatory statements had not caused Mr. Marcellin’s loss of employment and that he had mitigated his damages when he found another job. The motion judge relied on evidence that was by its nature preliminary, incomplete and untested: he accepted at face value the City’s termination letter citing “restructuring” as the reason for Mr. Marcellin’s dismissal and Mr. Hayward’s notes about performance issues, which the City had produced in its affidavit of documents and Ms. Walker had appended to her affidavit. His conclusion that Mr. Marcellin had mitigated his damages by finding other employment both ignored the evidence that Mr. Marcellin had been out of work for over a year and confused the damages Mr. Marcellin was claiming with issues that would be litigated in his wrongful dismissal action.

[98] At this early stage in the proceedings there was evidence of actual and likely harm to Mr. Marcellin’s employment and career prospects that was caused by the defamatory expressions. Mr. Marcellin was removed from his position leading the Safe Cities initiative at the urging of Ms. Walker and after Dr. Young had made the police complaint. And Dr. Young’s stated purpose in sending out the letters to community leaders was to ensure that he was not considered for the very types of roles he had assumed in the past.

[99] At the public interest hurdle under s. 137.1(4)(b), 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, at para. 30, citing Pointes Protection, at paras. 70-71. “[T]here is no threshold requirement for the harm to be sufficiently worthy of consideration…. [T]he magnitude of the harm simply adds weight to one side of the weighing exercise”: Pointes Protection, at para. 70. I am satisfied, based on the record in this motion, that Mr. Marcellin has established a likelihood of harm caused by the respondents’ actions that is of a sufficient magnitude to justify the continuation of his Action. As such, his interest in pursuing the Action is significant.

(b) The Public Interest in Protecting the Respondents’ Expressions

[100] On the other side of the weighing exercise is the public interest in protecting the respondents’ expressions. In considering the value of the expressions under s. 137.4(b), the motion judge concluded that the public has a “very strong interest in protecting the victims of intimate partner violence”, which includes promoting expression and debate on the topic of sexual and domestic violence and abuse and not discouraging victims from reporting such violence and abuse.

[101] The term “public interest” is used differently in s. 137.1(4)(b) than in s. 137.1(3). Under s. 137.1(4)(b), “not just any matter of public interest will be relevant. Instead, the quality of the expression, and the motivation behind it, are relevant here”: Pointes Protection, at para. 74 (emphasis in original). It is relevant at this stage whether the expression “helps or hampers the public interest”: Pointes Protection, at para. 74. Under s. 134.1(4)(b) the court must undertake a “qualitative consideration of the public interest in the [subject] expression”: Thorman v. McGraw, 2022 ONCA 851, 476 D.L.R. (4th) 577, at para. 30 (emphasis added).

[102] As the Supreme Court noted in Hansman, not all expression is created equal, and the level of protection to be afforded to any particular expression can vary according to the quality of the expression, its subject matter, the motivation behind it and the form through which it was expressed: at para. 79. Since defamatory statements and personal attacks are “very tenuously” related to the core values which underlie s. 2(b) of the Charter, “there will be less of a public interest in protecting a statement that contains ‘gratuitous personal attacks’ and the ‘motivation behind’ the expression will be relevant to the inquiry”: Pointes Protection, at paras. 74-75; Bent, at para. 163.

[103] The motion judge’s assessment of the value of the respondents’ expressions reveals two errors. First, he failed to consider the value of the impugned expressions themselves, and instead considered the value of discussion and debate on the general subject of domestic violence. Second, he did not consider at all at this stage, the respondents’ motivations in making the expressions, the quality of the expressions, and the evidence of malice.

[104] The motion judge did not distinguish between the actual impugned expressions (that is, the expressions identified as containing a defamatory sting) and the general subject matter of public interest (that is, the protection of victims of intimate partner violence by promoting expression and debate on sexual and intimate partner violence). He did not, as the Supreme Court has directed, inform his weighing exercise by grounding the degree of protection to be afforded to the respondents’ expressions in the nature of the expressions themselves: Pointes Protection, at para. 77; Hansman, at para. 79.

[105] Instead, the motion judge weighed the value of discussion and debate on the associated subject matter of domestic violence. After referring to the materials LAWC filed on the motion about intimate partner violence, he stated: “Actions that are intended to prevent or discourage, or have the effect of preventing or discouraging, victims, primarily women, from reporting incidents or abuse must be scrutinized with caution”. The motion judge focused on the public interest in protecting reports of abuse by victims of domestic violence rather than the protection to be afforded to the respondents’ expressions themselves. In so doing, he overstated the object of protection and detached the weighing exercise from the impugned expressions. This was an error: Hobbs, at para. 92; Rooney v. Galloway, 2024 BCCA 8, at para. 587.

[106] Second, the motion judge at this stage did not consider the important question of the respondents’ motivations in making the impugned statements and how they were made. While a defendant’s “motive, merit and manner are irrelevant in determining whether [an] expression relates to a matter of public interest” under s. 137.1(3), these are important factors in measuring the extent to which there is a public interest in protecting the particular expression at the weighing stage under s. 137.1(4)(b): Pointes Protection, at para. 74; Buttar, at paras. 42, 86.

[107] Malice is relevant to the weighing under s. 137.1(4)(b): Pointes Protection, at para. 75. Failure to consider evidence of malice at the weighing stage is a reversible error. In Hobbs, the British Columbia Court of Appeal stated that “[h]aving found that a trier of fact could conclude that [the respondent] was actuated by malice when he sent the police tip and later communicated with the Commission and RCMP, the judge did not account for that important consideration in the weighing exercise”, and that “[h]er failure to do so was an error in principle”.

[108] The motion judge made the same error here. Although he had considered these factors at earlier points in his decision and in particular in connection with the defence of qualified privilege, he did not consider the respondents’ motives, whether they acted with malice and the merits or quality of their expressions at the weighing stage. His weighing analysis ignores the concerns he had voiced earlier in his reasons about Ms. Walker and Ms. Wiggins having “far overstepped the proper boundaries” of their positions when they inappropriately attempted to interfere in the family law litigation, the evidence of a “campaign” against Mr. Marcellin, and the optics of the timing of the police complaint. Put differently, the motion judge’s weighing analysis did not account for the fact that the respondents improperly sought to achieve a result outside of the courts where the Variation Proceedings were underway.

[109] Nor did the motion judge consider at this stage the potential that the impugned statements were untrue – that is, whether making false allegations of domestic abuse is speech that is worthy of protection. The motion judge attributed value to the respondents’ expressions as though they were true, and without considering the important context of their motivation (which was to shut down the Variation Proceedings), and the manner and breadth of dissemination of the impugned expressions.

[110] In my view the nature and quality of the impugned expressions, the manner in which the expressions occurred, and the evidence about the respondents’ motivations lower the public interest in protecting their expressions. Although the respondents’ occupations involved advocacy for victims of domestic abuse to promote social change, their focus in making the expressions was on alleged abuse by one person: they asserted that Mr. Marcellin had physically abused Dr. Young and was continuing his abuse through family court proceedings. There was compelling evidence at the motion that the expressions were part of a concerted effort to shut down the Variation Proceedings, and if that was not possible, to publicly discredit Mr. Marcellin. While the impugned expressions “relate to” an issue of public interest – the protection of victims of domestic abuse – the context in which they were made and the respondents’ motivations reduce their value as expressions in the public interest.

(c) Weighing the Interests

[111] Conducting the weighing under s. 137.1(4)(b) is an “open-ended” exercise that requires the court “to scrutinize what is really going on in the particular case” and to consider all relevant factors: Pointes Protection, at paras. 79-81. Whether the hallmarks or indicia of a classic SLAPP suit are present bears on the public interest weighing exercise under s. 137.1(4)(b), including such factors as whether the plaintiff has a history of using litigation or the threat of litigation to silence critics, a financial or power imbalance that strongly favours the plaintiff, a punitive or retributory purpose animating the action, and minimal or nominal damages suffered by the plaintiff: Pointes Protection, at para. 78. Other factors may be considered where relevant, including the importance of the expression, broader or collateral effects on other expressions on matters of public interest, and the potential chilling effect on future expression either by a party or by others: Pointes Protection, at para. 80.

[112] The motion judge’s weighing of the interests under s. 137.1(4)(b) was informed by his errors in assessing Mr. Marcellin’s harm as a result of the impugned expressions and in his failure to consider the value of the particular expressions, their content, and the motivations of the respondents. He ought to have attributed more weight to the evidence that Mr. Marcellin had suffered harm and would likely continue to suffer harm as a result of the impugned expressions, and weighed such harm against what I have concluded is the reduced public interest in the respondents’ expressions, taking into consideration their motivations and the context in which such expressions were made.

[113] The motion judge made other errors at the weighing stage, which I will refer to briefly.

[114] First, in characterizing the Action as an act of retribution and retaliation by Mr. Marcellin, and a “vengeful intensification” by Mr. Marcellin, the motion judge did not take into account his conclusion that the impugned expressions were defamatory of Mr. Marcellin and harmful to his reputation, as well as his earlier observations that Mr. Marcellin was not acting improperly in pursuing the Variation Proceedings, and that it was the respondents who took inappropriate actions outside of the court proceedings in an effort to bring them to an end. This characterization is also inconsistent with the motion judge’s decision not to determine, even in a preliminary way, whether the statements about the past domestic abuse were true.

[115] Second, in assessing the value of Mr. Marcellin’s right to pursue an Action, the motion judge considered an irrelevant factor: that Mr. Marcellin had sued a number of parties and asserted various claims in the Action. He criticized Mr. Marcellin for pursuing “scorched earth” litigation. The anti-SLAPP motion however was concerned only with the claims against the respondents, and the motion judge concluded that these claims had apparent merit. The merits of the other claims against the other defendants were not before the motion judge. Whether Mr. Marcellin had cast the net too broadly in the Action by making claims against other parties was not the subject of the motion and ought not to have been relied on by the motion judge as a factor at the weighing stage.

[116] Nor was it appropriate for the motion judge to state that the litigation was a misuse of judicial resources and that it “must end”. The issue was not whether the motion judge considered the litigation to be ill-advised or a waste of time, but whether the test for dismissing the Action under the anti-SLAPP provision had been met. There are other remedies available to address litigation that is meritless, misguided or a waste of judicial resources. The anti-SLAPP provision is limited to weeding out SLAPPs.

[117] I disagree with the motion judge’s conclusion, without evidence, that allowing the Action to proceed could have a chilling effect on victims of abuse. There is no evidence of the respondents or anyone else having been inhibited by the Action from free expression about domestic abuse or victims’ rights. The targets of the Action are expressions that are specifically defamatory of Mr. Marcellin, and there is no identifiable public interest in permitting those expressions to continue. Allowing the Action to proceed would not in my view deter others from speaking out about domestic abuse and violence.

[118] On the other hand, a dismissal of the Action at this early stage would prevent Mr. Marcellin from having any recourse to remedy harm to his reputation that was caused by the respondents. As the Supreme Court stated in Pointes Protection, the anti-SLAPP provision ensures that “a plaintiff with a legitimate claim is not unduly deprived of the opportunity to vindicate that claim”: at para. 48. In my view the Action is a proportionate response by Mr. Marcellin to the respondents’ conduct. What is “really going on” here is not an improper attempt through litigation to suppress expressions by the respondents that are in the public interest; rather the Action is an attempt to remedy seemingly legitimate harm suffered as a result of the respondents’ conduct that was directed toward Mr. Marcellin and his reputation. “This is not the type of case that comes within the legislature’s contemplation of one deserving to be summarily dismissed at an early stage, nor does it come within the language of the statute requiring such a dismissal”: Bent, at para. 172.

[119] I conclude that Mr. Marcellin met his burden under s. 137.1(4)(b). I am satisfied that the harm he has suffered or is likely to suffer as a result of the respondents’ expressions is sufficiently serious that the public interest in permitting the Action to proceed outweighs the public interest in protecting those expressions.

(iii) The Non-Defamation Causes of Action

[120] Mr. Marcellin contends that the motion judge erred by dismissing the non-defamation claims asserted in the Action. I agree.

[121] The motion judge summarily dismissed the non-defamation claims after finding that, like the defamation claims, they “[arose] from the [impugned] expressions” and were therefore “caught by [his] decision”. Given the motion judge’s errors in respect of the defamation claims and his finding that the non-defamation claims arose from the same expressions, the Action should be allowed to proceed in its entirety.

[122] It is not appropriate for this court, on the limited record before it at this stage of the Action, to effectively determine the merits of the non-defamation causes of action. As this court cautioned at para. 57 in Buttar, an anti-SLAPP motion is not the proper juncture for assessing the potential merits of each individual cause of action pleaded in the statement of claim. An anti-SLAPP motion is not a pleadings motion or a summary judgment motion: Pointes Protection, at para. 52; Galloway, at para. 162. Rather, the court is concerned purely with weeding out SLAPPs.

[123] For the reasons above, I am satisfied that the Action is not a SLAPP. There are grounds to believe that the Action has substantial merit and the respondents have no valid defence, and in my view the public interest in permitting the Action to continue outweighs the public interest in protecting the impugned expressions. Accordingly, the Action should proceed in its entirety.

G. Disposition

[124] For the foregoing reasons, I would allow the appeal, set aside the order below, and make an order dismissing the respondents’ anti-SLAPP motion and permitting the Action to proceed in its entirety.

[125] I would set aside the costs order below and award costs of the appeal and the motion below to Mr. Marcellin in the agreed upon amounts of $20,000 and $15,000 respectively, all-inclusive, payable jointly and severally by the respondents.

Released: June 13, 2024 “K.M.v.R.” “K. van Rensburg J.A.” “I agree. C.W. Hourigan J.A.” “I agree. L. Favreau J.A.”

[^1]: The motion was dismissed on May 1, 2018, and Mr. Marcellin was subsequently awarded costs. [^2]: Although the motion judge referred to 17 letters, it is unclear where that number came from. In cross-examination Dr. Young acknowledged that there were 16 to 20. Only nine are in the record, including three letters dated March 28, 2019 written as “follow-ups” to previous letters. [^3]: While the respondents raised a defence that Mr. Marcellin had failed to provide proper notice under s. 5 of the Libel and Slander Act, R.S.O. 1990, c. L.12 (which requires prior written notice of a claim for libel in a newspaper or broadcast), the motion judge concluded that it potentially applied only to Ms. Walker’s tweets and that Mr. Marcellin had met his burden in respect of this defence because there was insufficient evidence to determine whether the publication of tweets constituted a “broadcast”. [^4]: The order for costs and damages was appealed to this court, however the court was advised that that appeal had been resolved.