Court File and Parties
COURT OF APPEAL FOR ONTARIO
DATE: 20241220 DOCKET: COA-23-CV-0532
Zarnett, Coroza and Favreau JJ.A.
BETWEEN
Kory Teneycke and Rubicon Strategy Inc. Plaintiffs (Respondents)
and
Charles McVety and Canada Christian College and School of Graduate Theological Studies Defendants (Appellants)
Counsel: Lorne Honickman and Laura Brown, for the appellants Scott Hutchison and David Postel, for the respondents
Heard: April 24, 2024
On appeal from the order of Justice Edward M. Morgan of the Superior Court of Justice, dated April 24, 2023, with reasons reported at 2023 ONSC 1710.
Favreau J.A.:
A. Introduction
[1] The respondents, Kory Teneycke and Rubicon Strategy Inc. (“Rubicon”), have brought an action in defamation against the appellants, Charles McVety and Canada Christian College and School of Graduate Theological Studies (the “College”).
[2] In their claim, the respondents allege that Mr. McVety defamed them by stating publicly that Mr. Teneycke knowingly acted in a conflict of interest by influencing the Ontario government’s vaccine passports policy during the COVID-19 pandemic, and that he and his company Rubicon profited from this policy. The claim alleges that Mr. McVety further defamed Mr. Teneycke by claiming he is prejudiced against Christians. The claim states that Mr. McVety was motivated by malice in making the alleged statements because he believed that Mr. Teneycke influenced politicians who were involved in denying the College’s accreditation as a university.
[3] The appellants brought a motion to dismiss the defamation action pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “Act”), commonly referred to as an anti-SLAPP motion.[^1]
[4] The motion judge dismissed the motion finding that there was substantial merit to the action, that there was reason to believe the appellants did not have viable defences to the action – in part because malice could defeat the defences of fair comment and responsible communication – and that, given the harm suffered by the respondents, the public interest in allowing the action to proceed outweighed the public interest in allowing the appellants to continue making the impugned statements. The motion judge also awarded costs to the respondents in the amount of $50,000.
[5] The appellants submit that the motion judge made several errors, including by relying on words that were not specifically pleaded as defamatory, by failing to identify the sting of Mr. McVety’s expressions, by finding that the appellants’ defences could be defeated by malice and in inadequately balancing the harm suffered by the respondents against the public interest in the appellants’ speech. The appellants also seek leave to appeal the costs order.
[6] I would dismiss the appeal. I see no error in the motion judge’s analysis of the merits of the claim, including the defences the appellants have put in play. I agree with the appellants that the motion judge failed to undertake a proper analysis at the balancing stage of the anti-SLAPP test. However, undertaking that analysis afresh leads to the same conclusion: the public interest in allowing the action to proceed outweighs the public interest in the appellants’ expression. I would also dismiss the motion for leave to appeal costs.
B. Background
(1) The parties
[7] Mr. Teneycke is the co-founder and CEO of Rubicon. Mr. Teneycke was Premier Doug Ford’s campaign manager for the 2018 and 2022 elections.
[8] Rubicon was founded around 2019. Rubicon is a consulting firm that provides advice on various matters, including government relations. In 2022, Mr. Teneycke had been on a leave of absence from Rubicon while he managed Premier Ford’s election campaign.
[9] Mr. McVety is an evangelical Christian leader and political activist. The College is an Evangelical Christian Bible College. Mr. McVety is the president of the College.
(2) The College’s attempts to obtain accreditation as a university
[10] In 2020, the College applied to the Ontario government to expand its degree-granting authority and to be designated as a university. Following the submission of this application, the College received negative attention. The Toronto Star reported that Mr. McVety and his son had obtained a substantial loan from the College that they used to buy personal items such as vehicles and jet skis. In addition, Islamophobic and homophobic statements were attributed to Mr. McVety. In October 2020, the Legislative Assembly of Ontario passed a motion condemning Mr. McVety’s “extreme and hateful invective” and opposing his efforts to accredit the College as a university.
[11] In December 2020, the legislature passed Bill 213, which included provisions that would allow the College’s request to be accredited as a university. However, the legislature deferred proclaiming this portion of Bill 213 until the Postsecondary Education Quality Assessment Board (the “PEQAB”) considered the College’s application.
[12] In May 2021, the PEQAB recommended that the College’s application not be granted. The government accepted this recommendation and the portion of Bill 213 dealing with the College’s accreditation as a university was not proclaimed.
(3) Mr. McVety’s statements about the respondents
[13] The respondents’ claim against the appellants is based on various public statements Mr. McVety made impugning Mr. Teneycke and Rubicon. The statements fall into two categories. First, Mr. McVety has stated that Mr. Teneycke improperly used his influence over Premier Ford to implement vaccine passports for the benefit of Rubicon’s pharmaceutical clients, and ultimately for Rubicon’s and Mr. Teneycke’s financial benefit. Second, Mr. McVety has claimed that Mr. Teneycke has an anti-Christian bias and has tried to keep Christians out of the Progressive Conservative Party.
[14] The respondents’ statement of claim refers to two specific occasions on which Mr. McVety made statements of this nature. Given the arguments made by the appellants on appeal, it is helpful to reproduce this aspect of the statement of claim.
[15] First, the statement of claim describes a webpage made by the appellants:
In Fall 2021, shortly after Ontario officials announced a vaccine passport system, the Defendants made the webpage https://realreason.ca/kory/. This webpage is linked, or housed within, another webpage run by the Defendants—https://realreasons.ca—which protests the Ontario government’s Fall 2020 decision to deny the College its request for university status.
The website https://realreason.ca/kory/ contains a video of Mr. McVety making a speech that directly states, and states by innuendo, that Mr. Teneycke and Rubicon improperly caused or lobbied Ontario Premier Doug Ford to implement a vaccine passport system. The website’s prose and the video embedded in the website contain several false and defamatory statements that would reasonably be expected to lower the reputation of Mr. Teneycke and Rubicon in the eyes of the public.
Rubicon represents certain pharmaceutical companies, but not in relation to any matter related to COVID-19 vaccines. Mr. McVety knew this fact when he made the defamatory speech: a portion of that speech involved Mr. McVety literally pointing to slides listing lobbyist registries which either he or the College had assembled for use during Mr. McVety’s speech. None of these registries demonstrated that Rubicon represented pharmaceutical firms in relation to COVID-19 vaccines.
On the website’s text, and in the video posted on the website, Mr. McVety and the College also say directly and by innuendo that Mr. Teneycke has improperly influenced Premier Ford to implement a vaccination passport system to benefit himself and Rubicon.
The website video of Mr. McVety’s speech opens with the rhetorical question “Why Did Premier Doug Ford Say ‘No’ and Then ‘Yes’ to Vaccine Passports?” Mr. McVety then states: “The same Kory Teneycke that happens to be the campaign manager of the Ontario government, the Ontario PC Party. He owns […] Rubicon Strategies” and then “[a] hundred mega corporations have hired [Kory Teneycke] who is now the campaign chair. I’ll let you draw your own conclusion.”
These claims are false and defamatory. No reasonable person could believe the assertions made and there is no evidence to support such claims.
[16] Second, the statement of claim describes statements Mr. McVety made at a video taped press conference in October 2021:
Mr. McVety made similar false claims regarding Mr. Teneycke and Rubicon directly in a press conference given on or around October 5, 2021. The speech, which was video taped and featured in articles by several Canadian press outlets, starts with Mr. McVety saying Mr. Teneycke is in a conflict of interest with the PC Party of Ontario because of his involvement with Rubicon.
About two minutes into the public speech, Mr. McVety stated: “It is spectacular that someone who represents these pharmaceuticals can be in the caucus, leading the caucus, influencing the caucus, and then benefitting to untold amounts”. This claim is false.
About seven minutes into the press conference, Mr. McVety falsely stated about Mr. Teneycke: “it is immoral to be paid huge amounts of money by a corporation and then go in and do their bidding in the party.” Those words are false.
After talking for more than seven minutes, Mr. McVety stated that his issue regarding Mr. Teneycke and Rubicon is about them “being paid to influence the government”. That claim is false and defamatory.
About thirteen minutes into the press conference, Mr. McVety stated: “I don’t think there’s anything wrong with these [pharmaceutical] companies profiting from a pandemic. But when they hire and pay money to the company that is owned by the campaign manager and the campaign manager is in caucus there is no separation of power and it is a gross abuse.” That is a further false statement.
Seventeen minutes into the press conference, Mr. McVety stated that “money goes to Rubicon, influence goes to the government, and people suffer.” This claim is demonstrably false.
In the press conference, Mr. McVety also stated that Mr. Teneycke “is on a campaign to drive Christians out of [the PC Party of Ontario].” This statement is also false.
[17] The statement of claim further alleges that Mr. McVety’s statements impugning Mr. Teneycke and Rubicon were motivated by malice “because Mr. Teneycke has worked with various Ontario politicians that are associated with the same Ontario government which denied the College’s request to expand into a university.”
(4) The motion judge’s decision allowing the claim to proceed
[18] The appellants brought a motion to dismiss the claim on the basis of s. 137.1 of the Courts of Justice Act. The motion judge dismissed the motion and held that the action should proceed.
[19] In his reasons, the motion judge noted that the respondents conceded that the expressions at issue relate to matters of public interest.
[20] In considering whether the claim has substantial merit, the motion judge rejected the appellants’ arguments that Rubicon does not have a valid claim. He observed that the statements attributed to Mr. McVety claim that Rubicon has profited from Mr. Teneycke’s alleged improper lobbying, and that the statements are therefore about Rubicon and support a claim for damages by Rubicon.
[21] The motion judge also rejected the appellants’ argument that the College is not a proper defendant to the action. He pointed out that some of the alleged defamatory statements were posted on a website owned by the College and that many of the impugned statements alleged Mr. Teneycke improperly interfered with the College’s application for accreditation as a university.
[22] The motion judge further found that there were grounds to believe the appellants did not have any tenable defence to the claim.
[23] He rejected the appellants’ argument that truth (or justification) could be a valid defence, finding that, while some of Mr. McVety’s statements about Mr. Teneycke and Rubicon may be true when viewed in isolation, this was “irrelevant or meaningless in context.” These were “background or tangential facts, not the essential defamatory statements.”
[24] Similarly, the motion judge rejected the appellants’ argument that their statements could not be harmful or defamatory because many others had made the same allegations of conflict of interest. He noted that Mr. McVety was not simply repeating allegations made by others, but rather that he was “conscious of what he was saying and writing” and that he intended to disseminate the contents of his words. “The fact that other media outlets may have said the same or similar things is no bar to the Plaintiffs’ claim.”
[25] The motion judge also concluded that the defences of fair comment or responsible communication did not appear to be tenable. In reaching this conclusion, he held that there was evidence that may support a finding that the statements were motivated by malice, which would defeat these defences. He emphasized that he was not making a finding of malice but only “observing” that a finding of malice may be available in this case.
[26] Finally, after considering the nature of the statements made and the potential harm to Mr. Teneycke’s professional reputation, the motion judge concluded that the public interest in permitting the respondents to pursue their action outweighed “any public interest in protecting the Defendants’ expression.”
(5) The motion judge’s decision granting costs to the respondents
[27] In his costs decision, the motion judge acknowledged s. 137.1(8) of the Courts of Justice Act, which provides that “[i]f a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.” The motion judge found that this was an appropriate case for costs against the appellants and exercised his residual discretion accordingly. He ordered the appellants to pay costs of $50,000 to the respondents.
[28] The appellants appeal the dismissal of the anti-SLAPP motion and the motion judge’s costs order. I start with the merits appeal followed by the costs appeal.
C. Merits Appeal
[29] The issues raised by the appellants have changed over time.[^2] At the hearing, the appellants raised the following four issues:
a. The motion judge erred in relying on words that were not specifically pleaded in the statement of claim in his analysis of the merits of the claim and defences. b. The motion judge failed to identify the “sting” of Mr. McVety’s allegedly defamatory statements. c. The motion judge erred in making a finding that malice could defeat the appellants’ proposed defences of fair comment and responsible communication. d. The motion judge erred in the balancing portion of the anti-SLAPP test because he overvalued the harm suffered by the respondents and failed to consider the value of the appellants’ speech.
[30] Before addressing these specific issues, it is helpful to review the anti-SLAPP test and general principles that apply on this appeal.
Test on an anti-SLAPP motion
[31] In combination, ss. 137.1(3) and (4) of the Courts of Justice Act set out the four-part test on an anti-SLAPP motion.
[32] Section 137.1(3) provides that:
On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
[33] Section 137.1(4) provides that a judge shall not dismiss an action under s. 137.1(3) if the respondent on the motion satisfies the judge that:
(a) there are grounds to believe that, (i) the proceeding has substantial merit, and (ii) the moving party has no valid defence in the proceeding; and (b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
[34] The Supreme Court and this court have held that s. 137.1 of the Courts of Justice Act seeks to give effect to two equally important legislative purposes. The first purpose is to protect free speech by screening out at an early stage strategic lawsuits that adversely affect debate and participation in matters of public interest. The second purpose is to ensure that people can seek redress for harm to their reputations caused by defamatory statements: Burjoski v. Waterloo Region District School Board, 2024 ONCA 811, at para. 47. Section 137.1 seeks to achieve a “delicate equilibrium” between these goals: Hamer v. Jane Doe, 2024 ONCA 721, at para 33; Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 2. This enables the courts to “quickly identify and deal with strategic lawsuits, and ensure abusive litigation is stopped but legitimate action can continue”: Hamer, at para. 36.
[35] The Supreme Court and this court have also emphasized that s. 137.1 of the Courts of Justice Act is a screening mechanism intended to proceed on a limited evidentiary record. It is not meant to be a motion for summary judgment. When considering an anti-SLAPP motion, judges should therefore only engage in a limited weighing of the evidence for the purpose of considering the criteria under s. 137.1. Accordingly, “contested issues of fact and credibility and competing inferences drawn from contested facts are not to be resolved on a s. 137.1 motion”: Hamer, at para. 37; see also 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 52.
[36] At the merits stage of the analysis under s. 137.1(4)(a), the court is to undertake only a preliminary assessment of the claim and defences to determine the overall prospects of success: Pointes, at para. 59; 40 Days for Life v. Dietrich, 2024 ONCA 599, at para. 43, leave to appeal requested, [2024] S.C.C.A. No. 396. At this stage, the respondents on an anti-SLAPP motion bear the onus of establishing that there are “grounds to believe” that the proceeding has substantial merit, and that the defendant has no valid defence. The “grounds to believe” standard is lower than a balance of probabilities. The respondents on the motion are only required to show that there is a basis in the record and the law to conclude that the defences will not succeed: Mondal v. Kirkconnell, 2023 ONCA 523, 485 D.L.R. (4th) 90, at paras. 50-51; 40 Days, at para. 43.
[37] The weighing exercise at s. 137.1(4)(b) of the Courts of Justice Act is the “crux of the analysis” on an anti-SLAPP motion. Even if a claim has technical merit, it may be dismissed if the public interest in protecting the expression at issue outweighs the public interest in allowing the proceeding to continue: Pointes, at paras. 18, 62; 40 Days, at para. 62.
[38] On appeal, a motion judge’s determination that the anti-SLAPP motion should be dismissed is entitled to deference. This court should not intervene unless the motion judge committed an error of law or a palpable and overriding error of fact or mixed fact and law. The motion judge’s weighing exercise under s. 137.1(4)(b) of the Courts of Justice Act is entitled to particular deference because the inquiry at this stage is “open-ended and highly discretionary”: Burjoski, at para. 47.
[39] In the event the motion judge made a reversible error, this court may consider the matter afresh: Marcellin v. London (Police Services Board), 2024 ONCA 468, at para. 57, leave to appeal requested, [2024] S.C.C.A. No. 350; Hamer, at para. 32.
[40] In this case, the appellants raise three issues regarding the motion judge’s analysis of the defences and also submit that the motion judge erred in the balancing exercise. As set out in the following sections, I disagree that the motion judge made any error in assessing the merits of the defences. However, I agree that the trial judge erred in principle in balancing the interests at stake under s. 137.1(4)(b). But, based on a fresh balancing exercise, I would nevertheless dismiss the appeal.
Issue 1: Did the motion judge improperly consider statements beyond those expressly pleaded?
[41] The appellants argue that the motion judge improperly relied on statements made by Mr. McVety that were not pleaded in the statement of claim in his merits analysis. I agree that the motion judge looked beyond the statements pleaded, but viewed in context, this was not an error.
[42] As reviewed above, the statement of claim refers to two specific occasions when the appellants allegedly defamed the respondents. The first is on the College’s webpage https://realreason.ca/kory/, and the second is at an October 2021 press conference.
[43] The respondents’ motion materials referred to other occasions when Mr. McVety made similar statements. The motion judge described four of these.
[44] First, the motion judge quoted from an interview with Rebel News, where Mr. McVety made a statement implying corruption on the part of Mr. Teneycke and Rubicon:
[T]he premier in New South Wales stepped down for huge bribes and huge money flowing to lobbyists. So, we know that they do this around the world. We know that they’re paying Rubicon huge money. And then Rubicon’s founder and C.E.O. does not just have the ear of the premier. He’s in the caucus. And he, as the campaign manager.
[45] Second, the motion judge referred to posts and advertisements on Facebook in which Mr. McVety simultaneously attacked Mr. Teneycke and Rubicon for their ties to “big pharma” and to an organization that “ferociously attacked” the College using the following language:
PC Party Joins Leftists to Block Most Diverse College in Ontario from Updating Name to University
PC Party Campaign Manager Kory Teneycke is under pressure for his apparent conflict of interest due to the fact that his lucrative company, Rubicon Strategy, represents big pharma such as Pfizer and AstraZeneca. He is also under scrutiny for Rubicon being paid by an organization that has strong ties to Kathleen Wynne, who ferociously attacked [the College].
This summer Premier Doug Ford announced that he was against vaccine passports. A few weeks later he changed his mind and implemented a mandatory vaccine passport, stripping many basic freedoms from over 1 million Ontarians. Why? The answer: Follow the money.
Doug’s Campaign Manager is Kory Teneycke. Kory is the CEO and Co-Founder of Rubicon Strategies, a lobbying firm that represents AstraZeneca, Pfizer …
[46] Third, the motion judge pointed out that Mr. McVety’s statements were picked up by other media outlets, including Rebel News, which reported that,
McVety alleges that Teneycke has the ear of Premier Doug Ford, which might explain why Premier Ford was dead-set against vaccine passports for the province in July only to do an inexplicable backflip in August stating that a vaccine passport program is a good idea
McVety alleges that Teneycke is also the influencer behind Canada Christian College being denied university credentials. McVety claims the unspoken reason why Teneycke has contempt for his educational institution is due to Teneycke being ‘an atheist.’
[47] Finally, the motion judge referred to a mass email Mr. McVety sent to members of the Ontario legislature and the federal Parliament in December 2021, after the claim was issued. The email sought financial help in defending the lawsuit and reiterated the allegations that Mr. Teneycke benefitted financially from vaccine passports and was involved in preventing the College from being accredited as a university because of his anti-Christian views.
[48] The appellants argue that it was improper for the motion judge to rely on these additional statements because they were not explicitly pleaded in the statement of claim. The appellants base their argument on the general legal principle that claims in defamation must be pleaded with particularity and on this court’s decision in Thatcher-Craig v. Clearview (Township), 2023 ONCA 96, 480 D.L.R. (4th) 639. There is no doubt that, as a general proposition, a claim in defamation requires particulars, including particulars of the alleged defamatory statements and their defamatory meaning: PMC York Properties Inc. v. Siudak, 2022 ONCA 635, 473 D.L.R. (4th) 136, at para. 38, leave to appeal refused, [2022] S.C.C.A. No. 407; Thatcher-Craig, at para. 52. This ensures that “the defendant is not left in the dark as to the case to be met”: PMC York, at para. 40. However, the motion judge did not infringe this general principle by referring in his decision to statements beyond those pleaded. I say this for three reasons.
[49] First, this was not a pleadings motion. The motion judge’s task was not to determine whether the respondents pleaded sufficient particulars but rather whether the claim should be dismissed or allowed to proceed based on the test set out in s. 137.1 of the Courts of Justice Act. In that context, the motion judge was permitted to consider evidence for the purpose of determining whether there are grounds to believe that the claim has substantial merit.
[50] Second, the statements made by Mr. McVety that the motion judge referred to beyond those specifically pleaded are substantially the same as those already pleaded. While the statement of claim only refers to the webpage https://realreason.ca/kory/ and the press conference, it is evident from the record on the motion that Mr. McVety repeated the same allegations regarding Mr. Teneycke and Rubicon on multiple occasions.
[51] The circumstances in this case are significantly different from those in Thatcher-Craig. In that case, the plaintiffs had not pleaded any of the specific words alleged to be defamatory. Instead, in their statement of claim, the plaintiffs complained about public comments republished by the defendants, without identifying the content of almost all the comments; the claim simply described the comments as “negative … defamatory, inaccurate and damaging”. Feldman J.A. found that it was an error for the motion judge, in the context of an anti-SLAPP motion, to rely on the actual words used in the statements, which were in evidence on the motion, to assess whether the claim and proposed defences had substantial merit. The rationale for this conclusion was that s. 137.1(6) of the Courts of Justice Act precludes respondents on an anti-SLAPP motion from amending their statements of claim to avoid an order dismissing the claim: at paras. 52-53. Here, unlike in Thatcher-Craig, the claim was not pleaded with a lack of specificity such that the motion judge would have had to read in particulars; rather, the motion judge simply referred to additional occasions when Mr. McVety essentially repeated the statements already pleaded with specificity in the statement of claim.
[52] Finally, while these additional occasions were not explicitly pleaded, the motion judge was entitled to rely on them as indicia of malice. Proof of malice is not limited to the impugned statements; conduct pre- and post-dating the publication of defamatory statements can serve as evidence that the defendant was motivated by malice at the time of publication: Hill v. Church of Scientology of Toronto (1994), 18 O.R. (3d) 385 (C.A.), at para. 179, aff’d, [1995] 2 S.C.R. 1130; Rogacki v. Belz (2004), 190 O.A.C. 94 (C.A.), at para 48. Here, in finding that there were grounds to believe that the defences of fair comment or responsible communication would not succeed, the motion judge relied on the repetition of the impugned statements as evidence of potential malice:
Some of McVety’s assertions – in particular his linkage of the Plaintiffs’ lobbying on behalf of pharmaceutical companies with supposedly anti-Christian positions – are so far-fetched and defiant of logic that they suggest recklessness, or possibly outright fabrication, with respect to the truth, and seem to indicate an ulterior motive for the entire conflict-of-interest allegation. The constant repetition of the conflict allegation against Teneycke, which is entirely centred on his pharmaceutical lobbying and the government’s position on vaccines, and has nothing to do with matters of religion, seems inexplicable coming from McVety as a spokesman for a theological college. Without something more, the presence of the “Kory Page” on the “Real Reason” website is a bizarre and confusing juxtaposition.
McVety’s vehemence on the conflict point makes a perverse form of “sense” once there is a suggestion in the record that Teneycke is identified as the supposed “real reason” for the College’s failed application. That is, malice would provide the motivational explanation.
In an anti-SLAPP motion, the court is entitled to find that the Defendants acted on assumptions without exercising due diligence, and that this may be fatal to their defenses of responsible communication and fair comment: B’nai Brith, at para 33. This suggestion of malice portends an eventual conclusion that the statements spoken by the Defendants were neither fair nor responsible. I emphasize that I am not making any conclusive findings with respect to these defenses or with respect to the presence of malice; but on the record before me, I am satisfied that the action may proceed. [Emphasis added.]
[53] Accordingly, I disagree with the appellants’ contention that it was improper for the motion judge in his analysis of the merits of the claim to rely on statements made by Mr. McVety that were not explicitly pleaded.
Issue 2: Did the motion judge fail to properly identify the “sting” of the expressions?
[54] The appellants submit that the motion judge failed to properly identify the “sting” of the comments when he considered the defence of justification. I disagree.
[55] To succeed on a defence of justification, a defendant to a defamation action “must establish the substantial truth of the ‘sting’, or main thrust, of the defamatory words”: 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, 485 D.L.R. (4th) 551, at para. 65, leave to appeal refused, [2023] S.C.C.A. No. 432. Even if the published words contain accurate facts, the defence of justification will fail if the “sting” of the defamation is untrue: Bent, at para. 107; Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, 460 D.L.R. (4th) 245, at para. 23.
[56] The appellants suggest that the “sting” of Mr. McVety’s statements was that Mr. Teneycke was in a conflict of interest because of his work for Rubicon and as campaign manager for Premier Ford. The appellants further suggest that the truth of the sting is self-evident from Mr. Teneycke’s work for both Rubicon and the Premier.
[57] In the part of his decision dealing with the defence of truth, the motion judge did not explicitly identify the sting of Mr. McVety’s statements about Mr. Teneycke and Rubicon. However, earlier in his analysis, the motion judge said that “[t]he disparaging of the [respondent]’s business reputation, or the imputing of regulatory and/or criminal offenses committed by the [respondents], suffices to establish that the suit is a genuine claim in defamation”. This was clearly the “sting” of Mr. McVety’s statements; they suggested that Mr. Teneycke acted illegally and profited from combined work for the Premier and Rubicon.
[58] There was no evidence before the motion judge to support the truth of this suggestion. On the contrary, Mr. Teneycke’s evidence was that he was on a leave of absence from Rubicon in 2022 when he worked on the Premier’s campaign. In addition, his evidence was that, while Rubicon did some work for pharmaceutical companies including AstraZeneca, Rubicon did not lobby the Ontario government on behalf of pharmaceutical companies in relation to vaccine passports. On this basis, Mr. Teneycke denied that he or Rubicon profited from any of the Ontario government’s decisions related to vaccine passports. Other than pointing to the fact that Mr. Teneycke’s roles at Rubicon and in managing the Premier’s election campaign in 2022 could have given rise to a conflict of interest, the appellants presented no evidence that Mr. Teneycke or Rubicon acted illegally or that they profited from unlawfully lobbying the government to implement vaccine passports.
[59] In the circumstances, contrary to the appellants’ submission, the motion judge did identify the sting of Mr. McVety’s statements, which he described as being that the respondents acted illegally or corruptly in lobbying for vaccine passports. The motion judge made no error in concluding that there were grounds to believe that the defence of truth or justification lacked substantial merit. This does not mean that the appellants might not ultimately succeed in defending the claim based on justification, but on the record before him, the motion judge did not err in his conclusion on this issue.
Issue 3: Did the motion judge err in making a finding of malice?
[60] The appellants submit that the motion judge erred in finding that malice may defeat their defences of fair comment or responsible communication. Specifically, they argue that the motion judge failed to consider whether malice was the “dominant” purpose for their statements. I do not see this as an error.
[61] As a starting point, it is important to emphasize that, absent a legal error, this court owes deference to the motion judge’s finding that there are grounds to believe that the statements may have been actuated by malice such as to defeat the defences of fair comment or responsible communication: 40 Days, at para. 51.
[62] Citing the Supreme Court’s decision in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 145 and this court’s decision in B’nai Brith, at para. 31, the motion judge correctly stated that “malice may be established by ‘reckless disregard for, or indifference to, the truth, spite or ill-will, or any indirect or ulterior motive’”. Applying this test, the motion judge found that Mr. McVety’s repeated statements regarding Mr. Teneycke’s alleged conflict of interest in relation to pharmaceutical companies and vaccine passports in combination with his reference to Mr. Teneycke playing a role in the College not being accredited as a university and being anti-Christian supported a possible finding of malice. In other words, it was the odd and repeated combination of these unrelated issues that supported a finding that Mr. McVety had an ulterior motive in persistently accusing Mr. Teneycke of being in a conflict of interest and acting for his own financial benefit. The motion judge was satisfied the evidence could reasonably support finding that Mr. McVety perceived Mr. Teneycke as having been involved in the decision not to accredit the College as a university, and because of this, Mr. McVety set out to damage Mr. Teneycke’s reputation. I see no palpable and overriding error in the motion judge’s reasoning on this issue.
[63] The appellants submit that the motion judge failed to find that Mr. McVety’s dominant purpose in making the statements was to harm the appellants. They submit that this is a requirement when considering whether the defence of fair comment can be defeated by a finding of malice.
[64] I disagree with the appellants’ reading of the motion judge’s reasons on this point, and with their position on the applicable principle. As the motion judge correctly recognized, there are different paths to proving malice on the part of defendants in a claim for defamation, including showing that they acted with reckless disregard for, or indifference to, the truth, by spite or ill-will, or for any indirect or ulterior motive. A finding that malice was the dominant purpose for making the impugned statements is only required to defeat the defence of fair comment if the defendant puts in play their subjective honest belief in the truth of the statements to establish the defence. Where the defendant relies on objective honest belief to make out fair comment, this leaves open the possibility that the defendant made the impugned statement knowing it was false, or with reckless indifference whether it was true or false. Either of these would be sufficient to establish malice without having to show this was the defendant’s dominant purpose: see Smith v. Cross, 2009 BCCA 529, 314 D.L.R. (4th) 457, at paras. 34, 40; Rooney v. Galloway, 2024 BCCA 8, at para. 354, leave to appeal refused, [2024] S.C.C.A. No. 83 (A.B.), and [2024] S.C.C.A. No. 84 (Rooney).
[65] That being said, in this case, while the motion judge may not have expressly stated that Mr. McVety’s dominant purpose was to harm the respondents, it is certainly implicit in his reasoning on the issue of malice that this was his conclusion based on the record. In particular, while he appeared to acknowledge that Mr. McVety’s statements about Mr. Teneycke being in a conflict of interest on their own would not ground a finding of malice, the motion judge inferred malice from the combination of topics and the repeated statements made by Mr. McVety. His reasoning on this issue, which is worth repeating in part, certainly suggests that he concluded there was reason to believe that Mr. McVety’s dominant purpose in raising the issue of Mr. Teneycke’s alleged conflict of interest was ill will toward Mr. Teneycke because of the College’s failed accreditation:
McVety’s vehemence on the conflict point makes a perverse form of “sense” once there is a suggestion in the record that Teneycke is identified as the supposed “real reason” for the College’s failed application. That is, malice would provide the motivational explanation.
[66] In sum, I see no error in the motion judge’s analysis on the issue of malice.
Issue 4: Did the motion judge err in balancing interests under s. 137.1(4)(b)?
[67] The appellants submit that the motion judge erred in his analysis at the last stage of the test under s. 137.1 of the Courts of Justice Act. They argue that the motion judge erred by overvaluing the harm suffered by the respondents given that there was no evidence of harm caused by Mr. McVety’s statements. They further argue that the motion judge gave no consideration to the public interest in protecting Mr. McVety’s specific expressions, and by failing to ultimately engage in a balancing of interests.
[68] I agree with the appellants that the motion judge failed to conduct the analysis mandated at this stage of the test under s. 137.1. However, the proper analysis leads to the same outcome; the respondents should be allowed to proceed with their action. To show how I arrive to this conclusion, I start with a review of the required analysis under s. 137.1(4)(b) and how the motion judge failed to apply it. I then conduct the analysis afresh.
(i) The required weighing of competing interests under s. 137.1(4)(b) and the error in the motion judge’s analysis
[69] Section 137.1(4)(b) of the Courts of Justice Act required the respondents to satisfy the motion judge that, due to the harm they have suffered as a result of the appellants’ expressions, the public interest in allowing the action to continue outweighs the action’s “deleterious effects on expression and public participation”: Pointes, at para. 82; see also Hansman v. Neufeld, 2023 SCC 14, 481 D.L.R. (4th) 218, at para. 59.
[70] In Pointes, at paras. 81-82, Côté J. explained that this weighing exercise is the “crux or core” of the analysis under s. 137.1. At this point, the court must consider “what is really going on”:
[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: s. 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.
[71] Accordingly, s. 137.1(4)(b) requires: a) consideration of the harm suffered, b) consideration of the public interest in protecting the expression in issue and c) a weighing of these interests, having regard to what is really going on in a particular case.
[72] I agree with the appellants that the motion judge in this case only considered the harm suffered by the respondents and failed to consider the public interest in protecting the expression and public participation, and further failed to engage in any meaningful balancing. This is evident from his abbreviated analysis, which focuses entirely on the harm allegedly suffered by the respondents without any regard for the public interest regarding the expression. The motion judge’s ultimate conclusion on this issue, without further analysis, was that “[t]he public interest in permitting the [respondents] to continue with their claim outweighs any public interest in protecting the [appellants’] expression.” While I would reach the same conclusion, a proper balancing analysis was required.
[73] Given this error in the motion judge’s decision, the analysis under s. 137.1(4)(b) must be conducted afresh.
(ii) The public interest in allowing the action to continue – harm suffered by the respondents
[74] As indicated above, the first part of the balancing analysis is to assess the public interest in “allowing an aggrieved party who has established a prima facie case that its legal rights have been infringed to vindicate those rights”: 40 Days, at para. 65. As part of this analysis, the court is to assess on a preliminary basis the nature and extent of the harm suffered.
[75] This court has reviewed the general principles governing the harm inquiry on several occasions, including in Marcellin, at para. 89:
• 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.
See also: Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 165 O.R. (3d) 753, at para. 46.
[76] In this case, the motion judge explained that, because Mr. McVety’s statements about Mr. Teneycke were published, damages are presumed. Furthermore, because Mr. McVety attacked Mr. Teneycke’s professional reputation, he would be entitled to general damages and would not have to prove special damages. He concluded as follows:
Generally speaking, damages in defamation cases consider “the plaintiff’s position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence or refusal of any retraction or apology, the whole conduct and motive of the defendant”. There is little doubt on the record that the [respondents] will be able to establish some level of general damages in respect of these criteria if McVety’s words about them are determined to be defamatory. Teneycke’s profession and Rubicon’s business will both be presumably harmed. [Citations omitted.]
[77] The appellants argue that the motion judge erred in relying on the presumption of damages because, in the context of an anti-SLAPP motion, the respondents on the motion must lead some evidence of damages and of causation, meaning that the damages were caused by the moving parties’ expression. The appellants rely on the following passage in Hansman, at paras. 67-68:
Although general damages are presumed in defamation law, s. 4(2)(b) prescribes a weighing exercise which requires that the harm to the plaintiff be serious enough to outweigh the public interest in protecting the defendant’s expression. While the presumption of damages can establish the existence of harm, it cannot establish that the harm is “serious”. To hold otherwise would be to presumptively tip the scales in favour of the plaintiff in defamation cases and effectively gut the weighing exercise. Rather, to succeed on the weighing exercise, a plaintiff must provide evidence that enables the judge “to draw an inference of likelihood” of harm of a magnitude sufficient to outweigh the public interest in protecting the defendant’s expression. Presumed general damages are insufficient for this purpose, as are bare assertions of harm.
Even where the extent of harm suffered by the plaintiff is serious, however, the legislation also requires some evidence that enables the judge to infer a causal link between the defendant’s expression and the harm suffered. Where the defendant is not the only one speaking out against the plaintiff, inferring a causal link between the defendant’s expression and the harm suffered by the plaintiff becomes both more important, and more difficult. [Citations omitted. Emphasis added.]
[78] The appellants submit that Mr. Teneycke and Rubicon provided no evidence of harm or damages. Indeed, the evidence in the motion record regarding harm or damages to the respondents was minimal. In his affidavit, Mr. Teneycke’s evidence was limited to the following general statement:
The defamatory statements made by, or sponsored by, the defendants are a direct and unwarranted assault on my professional reputation. In attacking my integrity and accusing me of violating the Lobbyists Registration Act, 1998, they undermine my work to promote Rubicon’s and integrity [sic] and imperil my professional success.
[79] In addition, the appellants argue that the motion judge failed to consider the issue of causation, especially given that there were others making similar statements about Mr. Teneycke and his alleged conflict of interest.
[80] In my view, it was not an error for the motion judge to consider that, given that Mr. McVety’s statements were directed at Mr. Teneycke’s professional reputation, including suggestions of criminal conduct and corruption, damage would be presumed. Certainly, in the context of anti-SLAPP motions, the Supreme Court and this court have taken a similar approach. In Hamer, at para. 113, Roberts J.A. summarized the relevance of reputational damages in the weighing stage of the analysis under s. 137.1 of the Courts of Justice Act:
In Bent, at para. 146, Côté J. emphasized that “reputational harm is eminently relevant to the harm inquiry under s. 137.1(4)(b)” and that the Supreme Court’s jurisprudence “has repeatedly emphasized the weighty importance that reputation ought to be given”, because “reputation is one of the most valuable assets a person or a business can possess”: see also Pointes, at para. 69. Moreover, she noted in Bent, at para. 147, that the “import of reputation is only amplified when one considers professional reputation” (emphasis in original). As a result, she concluded, the harm analysis requires the consideration of not only the pleaded monetary harm, but also the harm to a plaintiff's reputation, “even if it is not quantifiable at this stage”, noting that “the damaging effects that a defamatory remark may have on a plaintiff’s ‘position and standing’ in the professional community exacerbate the harm suffered as a result”: Bent, at para. 148; Pointes, at para. 71; Thorman, at para. 24.
[81] It may be that, in some cases, the fact that other people are making similar statements will make it more difficult to establish causation: Hansman, at para. 68. In this case, however, this would not weigh heavily against finding causation because, as pointed out by the respondents, while other people made public statements about Mr. Teneycke’s potential conflict of interest, Mr. McVety’s statements were different in quality and intensity. For instance, the statements in evidence that were made and published by people other than Mr. McVety or the College do not accuse Mr. Teneycke or Rubicon of being prejudiced against Christians, or of profiting from dishonest, criminal or corrupt conduct.
[82] However, the motion judge erred by failing to consider the seriousness of the harm. Even where damages are presumed, this is a necessary component of the weighing exercise because, ultimately, the seriousness of the harm must be weighed against the public interest in protecting the defendant’s expression: see Hansman, at para. 67. As reviewed above, the motion judge in this case did not engage in a proper weighing exercise. Having found that the record established that the respondents may be entitled to general damages because of the nature of the statements made by Mr. McVety and their potential impact on the respondents’ professional reputation, he jumped right to the conclusion that the public interest in allowing the claim to continue outweighed the public interest in protecting the appellants’ speech.
[83] In my view, the nature of the allegations provides indicia that the harm was serious, but the lack of direct evidence that Mr. McVety’s statements actually harmed Mr. Teneycke’s reputation or had a negative financial impact on Rubicon attenuate the harm for the purpose of the weighing exercise. When reputational harm is at issue, it is certainly not necessary for the respondents on an anti-SLAPP motion to provide evidence quantifying the harm, but evidence of actual harm will serve to amplify its seriousness in the eyes of the court. For example, in Marcellin, the respondent on the motion provided evidence that he had lost his job as a result of the moving parties’ statements about him. In Hamer, the responding party gave evidence that the moving parties’ statements about her had caused mental health problems.
[84] In contrast, the only evidence regarding the seriousness of the harm suffered by the respondents is the presumption of harm to their reputation and Mr. Teneycke’s bald statement reproduced above. If the appellants could establish a public interest in protecting their speech, the paucity of evidence from Mr. Teneycke or Rubicon might well pull toward favouring the appellants in the weighing exercise. However, as discussed in the next parts of the analysis, that concern does not arise in this case given the quality of the speech at issue.
(iii) The public interest in protecting the expression – the value of the appellants’ expression
[85] When considering the public interest in protecting the impugned expression under s. 137.1(4)(b), the court is to consider the quality of the expression and its motivation: “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, at para. 74 (emphasis in original). As van Rensburg J.A. explained in Marcellin, at para. 102, citing 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”.
[86] In addition, malice is relevant to assessing the value of the expression at issue: Pointes, at para. 75; Marcellin, at para. 107; and Hamer, at paras. 117-19. Indeed, “a statement that contains deliberate falsehoods [or] gratuitous personal attacks … may still be an expression that relates to a matter of public interest. However, the public interest in protecting that speech will be less than would have been the case had the same message been delivered without the lies [or] vitriol”: Pointes, at para. 75, citing 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, at para. 93.
[87] In this case, the appellants urge the court to focus on Mr. McVety’s statements that Mr. Teneycke was in a conflict of interest. They argue that these statements are clearly a matter of public interest. However, this emphasis on the subject of the statements is misplaced based on what is required at this stage of the analysis. When conducting the weighing under s. 137.1(4)(b), the court is not just concerned with the topic of Mr. McVety’s expression, but with the quality of his expression and his motivation: Pointes, at para. 74; Thorman v. McGraw, 2022 ONCA 851, 476 D.L.R. (4th) 577, at paras. 15, 27.
[88] Mr. McVety was not just speaking on a matter of public interest; the evidence suggests that he was engaged in a campaign to impugn Mr. Teneycke’s reputation. As reviewed above, Mr. McVety did not just raise a concern that Mr. Teneycke was in a conflict of interest. Rather, the language he used was meant to impugn Mr. Teneycke’s professionalism and character, and to suggest that he was corrupt and acting illegally. There is no evidence that Mr. McVety took any steps to verify the accuracy of any of his allegations. As the motion judge found, Mr. McVety appears to have had an ulterior motive, and to have acted with malice.
[89] In the circumstances, there is a relatively low public interest in protecting the appellants’ expression.
(iv) Overall weighing
[90] The motion judge did not engage in the requisite overall weighing exercise. It therefore falls to this court to do so.
[91] The weighing exercise under s. 137.1(4)(b) is open-ended and requires the court to scrutinize “what is really going on” in the case: Pointes, at para. 81. When weighing the respondents’ interest in pursuing the underlying defamation action against the public interest in protecting the appellants’ expression, the court can consider some of the classic hallmarks of a SLAPP suit. These include 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, at paras. 78-79; Marcellin, at para. 111. In addition, the court can consider 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, at para. 80; Marcellin, at para. 111.
[92] In this case, there is no evidence that the respondents have a history of using litigation to threaten or silence critics. On the contrary, Mr. McVety is not the only person who has raised concerns about a potential conflict of interest, and yet, the respondents have only pursued a claim against the appellants. There is also no evidence of a financial or power imbalance between the parties, or that the respondents brought their claim for punitive or retributory purposes. Instead, the evidence suggests that Mr. McVety made the impugned statements against the respondents as a form of retribution for Mr. Teneycke’s alleged role in the College not being accredited as a university, and that Mr. Teneycke’s objective in bringing the claim is to protect his reputation.
[93] In the circumstances of this case, while the evidence of the seriousness of the harm is limited, it still outweighs the public interest in protecting the expression. What is really going on here is not a strategic lawsuit brought to prevent Mr. McVety from expressing himself on a matter of public importance, but rather a legitimate claim in defamation brought to protect the respondents’ reputations. The respondents may not ultimately succeed at trial, but they should be allowed to pursue the action.
D. Costs Appeal
[94] The appellants seek leave to appeal the motion judge’s costs order in any event of the outcome of the appeal. I would not grant this request.
[95] Section 137.1(8) of the Courts of Justice Act provides that, “[i]f a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.” The motion judge decided that this was an appropriate case for costs and ordered the appellants to pay costs in the amount of $50,000 to the respondents.
[96] In reaching this conclusion, the motion judge relied in part on the fact that Mr. McVety holds a prominent position as a clergyman and educator. He also relied on the fact that he “found that there was malice underlying the Defendants’ publications and speeches” and that Mr. McVety sent a mass email to members of the Ontario legislature and the federal Parliament about Mr. Teneycke after the claim was issued.
[97] The motion judge further justified his award of costs on the basis that it would act as a deterrent against other unmeritorious anti-SLAPP motions:
In my view, awarding costs to the Plaintiffs in these circumstances will go some way toward dampening not only these Defendants, but perhaps other defendants’ enthusiasm for taking the anti-SLAPP route where, as here, the factual context simply does not fit the SLAPP description. While costs are always broadly discretionary under section 131 of the CJA, the residual discretion left for the motion judge under section 137.1(8) is particularly appropriate to this context.
[98] The appellants argue that it was improper for the motion judge to rely on a finding of malice and that he erred in suggesting that this case could be used as a deterrent for unmeritorious anti-SLAPP motions. Neither of these issues warrant granting leave to appeal from the costs order.
[99] The standard of review on an appeal from a costs order made in the context of an anti-SLAPP motion is no different than other costs appeals, and the same leave requirement applies: Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at paras 41-42; The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381, at paras. 165-167, leave to appeal refused [2023] S.C.C.A. No. 331 (Dow Jones), [2023] S.C.C.A. No. 337 (Catalyst C70228), and [2023] S.C.C.A. No. 338 (Catalyst C70208). To grant leave, this court must be satisfied that there are strong grounds to find that the motion judge erred in exercising his discretion: Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92. Even if the court grants leave, the court will only allow a costs appeal if the motion judge made an error in principle or if the costs award is plainly wrong: Catalyst, at para. 167.
[100] The motion judge’s finding that the expressions in this case may have been motivated by malice provides support for departing from the presumption that no costs are to be awarded where the court dismisses an anti-SLAPP motion. The appellants essentially quibble with the language used by the motion judge. In the decision dismissing the motion, the motion judge expressly stated that he was not making a “conclusive” finding of malice. In contrast, in his costs endorsement, he referred to the “malice underlying the [appellants’] publications and speeches” as one of the factors he took into account in exercising his discretion to order the appellants to pay costs to the respondents. The purported inconsistency is a matter of semantics. The finding in the motion decision is clear; there are sufficient indicia of malice – or of an ulterior motive – to support a finding at this early stage that the defences of fair comment and responsible communication will likely not succeed. There is no reason in principle why the motion judge could not take these indicia into consideration in deciding that the circumstances in this case justified an award of costs. The fact that the language the motion judge used in his costs decision is more definitive than the language he used in his decision on the merits is of no moment. The basis for the costs award is evident and not an error in principle.
[101] The appellants also fault the motion judge for awarding costs as a deterrent for future unmeritorious anti-SLAPP motions. On its own, this may have been an error because it would run contrary to s. 137.1(8) of the Courts of Justice Act. But this was not the motion judge’s only justification for awarding costs. His primary justification was his finding that the expression was potentially motivated by malice. In these circumstances, where there is evidence that the expression was motivated by malice and the law suit does not bear the indicia of a typical SLAPP suit, there was nothing wrong with the motion judge’s suggestion that costs were appropriate, including as an incentive against other anti-SLAPP motions in similar situations.
[102] In the circumstances, I see no grounds to find that the motion judge erred in principle in exercising his discretion to award costs to the respondents.
E. Disposition
[103] I would dismiss the appeal on the merits and dismiss the request for leave to appeal costs.
[104] As agreed between the parties, given the respondents’ success on the appeal, they are entitled to costs in the amount of $25,000 all inclusive.
Released: December 20, 2024 “B.Z.” “L. Favreau J.A.” “I agree. B. Zarnett J.A.” “I agree. Coroza J.A.”
Footnotes
[^1]: The acronym SLAPP stands for “strategic lawsuits against public participation”. [^2]: The appellants initially filed a factum that raised somewhat different issues than those ultimately argued at the hearing before this court. The appellants then retained new counsel for the appeal. New counsel filed a supplementary factum that raised new issues. By the time the appeal was argued before us, the appellants had refocused the issues raised in their factums and framed them as reflected in this decision.
