COURT FILE NO.: 880/16 DATE: 2017 06 28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

AZIM RIZVEE and RABIYA AZIM Plaintiffs (Respondents) – and – STACEY NEWMAN Defendant (Moving Party)

Counsel: Laughlin Campbell, J. Brandon O’Riordan and Ginny Lee, for the Plaintiffs (Respondents) Nader R. Hasan and Carlo Di Carlo, for the Defendant (Moving Party)

HEARD: December 14, 2016 and January 18, 2017

REASONS FOR DECISION ON MOTION

D. FITZPATRICK J.

A. Overview

[1] The Defendant, Ms. Stacey Newman, has brought this motion pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), to dismiss the Plaintiffs’ defamation action against her. At the outset, I note that the action also includes a claim against Ms. Newman by one of the Plaintiffs, Mr. Azim Rizvee, alleging malicious prosecution. Ms. Newman seeks to also have this claim dismissed pursuant to s. 137.1.

[2] Section 137.1 is a recent revision to the CJA made pursuant to the Protection of Public Participation Act, 2015, S.O. 2015, c. 23 – Bill 52 (“PPPA”). Ms. Newman argues that the Plaintiffs’ action is based on communications she made relating to a matter of public interest, which are protected by s. 137.1.

[3] Both sides to this dispute filed supporting affidavits and argued their respective positions over two days.

B. Parties

[4] Ms. Newman is a freelance photographer and print journalist. She lives in Milton, Ontario and is an active member of the community. Ms. Newman frequently volunteers for social causes and political campaigns, including those in support of the Liberal Party of Canada (“LPC”). She also holds a leadership position in a group called “Milton Says No” (“MSN”), which opposes the construction of a rail terminal that CN Rail proposes to build in Milton.

[5] The responding parties, Mr. Azim Rizvee and Dr. Rabiya Azim are spouses living in Milton, Ontario. They are co-founders and operators of MinMaxx Realty Inc. (“MinMaxx”), a real estate brokerage operating in Milton. Mr. Rizvee was the LPC candidate in the Milton riding for the 2015 federal election. Dr. Azim was his manager for that campaign.

C. Facts

I. The Defamation Claim

[6] Although the parties present somewhat differing narratives, both agree that their dispute giving rise to this action had its origins in the context of the MSN campaign that Ms. Newman was helping to lead. The parties had no prior relationship of significance or acrimony.

[7] Ms. Newman says that MSN was approached by the responding parties for support in the then-upcoming 2015 federal election. Mr. Rizvee and Dr. Azim say that they invited Ms. Newman to an event organized by MinMaxx in opposition to the rail yard, which invitation she declined. In any event, the dispute herein started at some point in the early part of 2015.

[8] There were two candidates seeking the 2015 LPC nomination in Milton. One of those candidates was Mr. Rizvee and the other was Mr. Zeeshan Hamid. Ms. Newman was a well-known and vocal supporter of Mr. Hamid.

[9] I have detailed below the interactions of the parties that led to the impugned comments of Ms. Newman. In their claim, Mr. Rizvee and Dr. Azim argue that the words published by Ms. Newman, and the innuendo arising from them, are false and were maliciously published by the Defendant, knowing that they were false or with careless disregard as to whether they were true or not.

[10] Specifically, the Plaintiffs’ Statement of Claim and their materials before me on this motion allege that the words meant and were understood to mean the following:

a. That Azim Rizvee is unworthy of public office; b. That Azim Rizvee is violent; c. That Azim Rizvee is abusive; d. That Azim Rizvee is unscrupulous; e. That Azim Rizvee is predatory; f. That Azim Rizvee is a bully; g. That Azim Rizvee is exploitative; h. That Azim Rizvee is, without limiting the specificity of the above, of bad character; i. That Rabiya Azim is aggressive; j. That Rabiya Azim is exploitative; and k. That Rabiya Azim is of bad character.

July 11, 2015 – LPC Nomination Meeting

[11] The first incident between the parties occurred during the LPC Nomination meeting on July 11, 2015. The meeting took place at a school in Milton.

[12] Ms. Newman and other members of Mr. Hamid’s campaign team had assembled their team office down the road from the school hosting the meeting. As a result, the members of the Hamid campaign were entering and exiting the school throughout the meeting. A number of Mr. Rizvee’s supporters were congregated outside of the school where the meeting was being held.

[13] According to Ms. Newman’s version of events, each time that she entered the school she was taunted by Mr. Rizvee’s supporters and made to feel uncomfortable. The supporters yelled at Ms. Newman that she “should respect Azim,” that she should “leave”, “go be quiet,” and that she did not “belong in the community.” Ms. Newman says that one of these supporters attempted to physically obstruct her entry into the nomination meeting. Ms. Neman denies yelling or otherwise instigating this confrontation. Her version of the events that evening is corroborated by another supporter of the Hamid campaign, Mr. Khushnigar Saiyed, who accompanied Ms. Newman while attempting to enter the event. Ms. Newman also filed an email from Mr. Faisal Elahi, a supporter of Mr. Rizvee who was in attendance that evening, offering his apology for the “incident” and any “disrespect”.

[14] According to Mr. Rizvee and Dr. Azim, Ms. Newman was yelling at Mr. Rizvee’s supporters outside of the school. Dr. Azim instructed the supporters not to engage with Ms. Newman.

[15] The result of the nomination meeting was that Mr. Rizvee was nominated as the LPC candidate for the 2015 federal election.

July 12, 2015 – Facebook Post by Ms. Newman

[16] On July 12, 2015, the day following the nomination meeting, Ms. Newman posted the following comment on Facebook:

We were told numerous times by the opponent’s supporters, henchmen frankly, by messages on fb [Facebook], by shouting and intimidation to keep our opinions to ourselves. This is not democracy, it is bullying and it is dirty politics. A true leader would have instilled values of peace and solidarity in his followers to ensure that following the vote his party would heal and come together. There are the values Zeeshan instilled in our team. What occurred yesterday was very upsetting to many of we longtime Liberals and as many have said, it has left us soul searching. [Emphasis added.]

[17] The above comment is alleged to contain two defamatory statements: (1) that Mr. Rizvee’s supporters are henchmen; and, (2) that Mr. Rizvee engaged in bullying and dirty politics.

July 16, 2015 – CN Rail Open House

[18] On July 16, 2015, CN Rail hosted an open house event to discuss the terminal yard. Ms. Newman and Mr. Rizvee were both in attendance. Ms. Newman’s version of this event describes Mr. Rizvee forcing a hug despite her protests. Further, she says that Mr. Rizvee suddenly appeared by her side at the point where she was addressing the media and placed his hands on her back and arm. Ms. Newman’s version of the events that day are corroborated by her spouse, Stephen Newman, who was in attendance. Ms. Newman says that Mr. Rizvee’s intent was to create the public impression of support for him by Ms. Newman and/or MSN.

August 23-24, 2015 – Milton Ribfest

[19] Ms. Newman was at the Milton Ribfest event held on August 23-24, 2015 and was one of the representatives attending the MSN pavilion. Mr. Rizvee was also in attendance at the Ribfest. Ms. Newman states that Mr. Rizvee attended the MSN pavilion, put his hands on Ms. Newman and stood near her while she was speaking with people, despite her protests. Her version of the events that day is corroborated by another member of the MSN campaign, Ms. Jennifer Meyer, who attended with Ms. Newman.

[20] Again, Ms. Newman says that Mr. Rizvee’s intent was to create the public impression of support for him by Ms. Newman and/or MSN.

September 30, 2015 – Milton Candidates Debate

[21] Ms. Newman presented two incidents that occurred at the September 30, 2015 Milton candidates debate.

[22] First, she says that Mr. Rizvee came towards her at the meeting, backing her into a desk and aggressively grabbing her forearm. Ms. Newman says she yelled at Mr. Rizvee to let her go. This confrontation was corroborated by Mr. George Soltysik who intervened on Ms. Newman’s behalf.

[23] The second incident occurred in the parking lot after the meeting. Ms. Newman was in the parking lot talking with Mr. Soltysik, when a car suddenly pulled up in front of them. She says that an individual associated with Mr. Rizvee’s campaign, Haroon Butt, exited his vehicle walking aggressively towards her, yelled at her and told her she was going to be taught “some manners”. Again, this confrontation was corroborated by Mr. Soltysik who intervened to prevent Mr. Butt from “potentially harming” Ms. Newman. Both Ms. Newman and Mr. Soltysik reported this event to the police.

September 2015 – Facebook Post by Ms. Newman

[24] The responding parties take issue with a second Facebook comment written about the July 11, 2015 nomination meeting. The following second comment was written in September 2015:

… A Conservative candidate in Brampton gets dumped for writing an inappropriate article – and yet in Milton we have borderline criminal behaviour by a candidate and no one seems to care.

I mostly believe in our country’s values and political processes. But at this point I’m deeply troubled that no one in a position to stand up has acted to protect Milton riding constituents from the abuse being carried about by one of the candidates in particular. I can only imagine this candidate is laughing at all of us, he is being allowed to pervert the political process, to hurt constituents, to flout the law, ethics, invade personal space and carry out intimidation and other nefarious activities in order to get what he wants. I am particularly disturbed that those in charge with our local Liberals, all of whom have been notified, have not acted.

The moment this candidate won the nomination (in my opinion in a corrupt and excessive manner), my support went to the NDP and I know I’m far from alone.

[Emphasis added.]

[25] Mr. Rizvee and Dr. Azim allege that the following defamatory statements are contained in the second comment: that Mr. Rizvee (1) engaged in borderline criminal behaviour; (2) engaged in abuse from which Milton constituents must be protected; (3) perverted the political process; (4) hurt constituents; (5) flouted law and ethics; (6) invaded personal space; and (7) carried out intimidation and other nefarious activities in order to get what he wanted.

September 2, 2015 – Facebook Comment by Ms. Newman

[26] On September 2, 2015, Ms. Newman wrote a comment on Facebook in response to something that someone else had posted. The responding parties take issue with the particular section of the comment as noted:

…I personally was a Liberal for many years and even participated in the shameful nomination meeting that was held here in Milton. I resigned from the Liberal party after that meeting. I will not support a candidate who I believe to be unscrupulous and nakedly, aggressively ambitious at the expense of anyone and anything … [Emphasis added.]

September 3, 2015 – Facebook Comment by Ms. Newman

[27] On September 3, 2015, Ms. Newman wrote a comment on Facebook in response to Haroon Butt. The responding parties take issue with that part of the comment noted below:

…in the interest of not furthering this type of politics anymore, I won’t respond to you again but your candidate and his team have acted in such a two-faced and hypocritical manner, you have personally attacked and lied about so many of us, that is why people don’t work with your candidate… [Emphasis added.]

Between September 1 and December 31, 2015 – Facebook Post by Ms. Newman

[28] Ms. Newman posted a Facebook comment at some time between September 1 and December 1, 2015 that the responding parties take issue with. In particular, they disagree with this part of the statement:

…But I have also been public to ensure this is taken seriously. I know how much has happened to me, and the very frightening incident where one of his supporters was waiting for me, late at night, unprovoked, aggressively on behalf of this man and his campaign. All these experiences, especially the last one, were threatening and left me very shaken… [Emphasis added.]

October 6, 2015 – Facebook Comment by Ms. Newman

[29] On October 6, 2015, Ms. Newman made the following comment on Facebook, which the responding parties take issue with:

…I was a long-time Liberal myself. this issue goes beyond politics. If we don’t hold our elected officials to the standards of conduct we expect in our society, what does it say about us? why would a candidate be allowed to behave in this manner when he is in a position of power and he and his campaign seem to prey on and attack constituents/anyone in the way? [Emphasis added.]

October 8, 2015 – Tweet by Ms. Newman

[30] On October 8, 2015, Ms. Newman published the following statement on Twitter:

What #matters to me is that the Liberal Party act against harassment and bullying by the Milton Liberal candidate. [Emphasis added.]

October 13, 2015 – Ms. Newman’s Post on StaceyNewmanPhotography.com

[31] On October 13, 2015, Ms. Newman posted a blog entry to her website, www.staceynewmanphotography.com. The entry is lengthy, so I have excerpted the parts that the responding parties take issue with below:

How it feels to be intimidated systematically by the Milton Liberal candidate and his campaign.

I had already been the recipient of much unwanted behaviour and attention by the Liberal candidate and his supporters since earlier this year. I can only guess it is because I have not supported him, since this spring I have had to ask him to leave me alone many times. He has not respected this nor have his supporters.

It’s already awful enough to experience this kind of intimidation, it is a whole other thing to have to keep ‘proving it’ to people who don’t have my best interest at heart and instead, it seems, only the best interest of their party in mind.

I have made it clear that I feel I have been harassed, intimidated, crowded and physically intimidated against my wishes by the Liberal candidate in Milton, and some of his supporters, for months.

I have been harassed, intimidated, slandered, attacked, and our cause blatantly USED by the Liberal candidate, Azim Rizvee, and his supporters, and all because I seem to be in his way somehow. I am nothing to these people in my opinion, a stepping stone to be squashed as required in order to hurt other far more important people, and in order for this candidate to get what he wants.

I have personally been the recipient of so much unacceptable behaviour by our Liberal candidate, behaviour which in my opinion is borderline criminal and abusive.

Your candidate, Azim Rizvee, in the Milton riding has, in my very strong opinion, engaged in the dirtiest political campaign I have ever witnessed… This candidate, in my opinion, only won the candidacy by perverting the nomination process, and by using intimidation and excess to influence voters.

I believe I have been targeted by Azim Rizvee and his campaign supporters for months now, in a concerted effort to intimidate me into silence, and to discredit me because I do not support his campaign. In my opinion, over the last six months I have been the repeated victim of harassment, intimidation, unwanted physical contact despite my repeated protests that I do not wish to be engaged by the candidate, and malicious slander against me and my husband. This past week I was again the victim of an episode of very unwanted physical intimidation by the candidate, and then of a threatening verbal attack following a debate, by one of his campaigners which involved the police.

This candidate has behaved unacceptable, using intimidation as have his supporters, and the candidate has demonstrated a marked disrespect for boundaries, for ethics, for fair conduct.

Our community is being hurt by this candidate’s campaign and tactics.

[Emphasis added.]

October 17, 2015 – Facebook Post by Ms. Newman

[32] Ms. Newman posted another Facebook comment on October 17, 2015. The responding parties take issue with the following particular comments within the Facebook post:

… There are witnesses, a pattern of behaviour and others experiencing the same systematic bullying and intimidation.

This is about someone hurting others, whose wife is hurting others, victimizing people for their own gain, whose supporters are effectively hired thugs running down anyone in the way of this candidate in our town…

October 18, 2015 – Facebook Post by Ms. Newman

[33] Ms. Newman posted another Facebook comment on October 18, 2015. The responding parties take issue with the following particular comments:

…I really like Justin Trudeau, I have seen him speak many times, I have followed his work, read books about him. He is truly someone I want to support as PM. But today I sit here, six months into a situation in which I have been verbally and physically harassed by the Milton Liberal candidate, and I have yet to receive any sort of formal actionable response from the Liberal Party. And my complaint is only one of many… [Emphasis added.]

October 19, 2015 – Facebook Comment by Ms. Newman

[34] On October 19, 2015, Ms. Newman posted the following comment that the responding parties take issue with:

This election is bittersweet for me. I enthusiastically await the opportunity to celebrate Harper’s removal from the PMO. However the behaviour of the Liberal candidate in Milton has been deplorable, and it has divided those of us who supported the LPC into two groups…those that will tow the party line at any cost, and those who will not look the other way because of what it costs us as a community and as a healthy democracy. [Emphasis added.]

November 5, 2015 – Ms. Newman’s Article on Rabble.ca

[35] On November 5, 2015, Ms. Newman published an article on the website www.rabble.ca recounting her experiences with the Plaintiffs up to that date. The article is again somewhat lengthy so I have excerpted below the portions that the responding parties take issue with:

…This is my opinion, my perspective, but after months of harassment and intimidation by this candidate and his associates, I have asked myself many times why me? There are others, allegedly. I have spoken to at least four of them firsthand. One is fighting the harassment in civil litigation, some are too scared to come forward and name names, except in quiet corners where they may feel they are out of the reach of those threatening them. Another woman was allegedly aggressively harassed five years ago, but she did not report the harassment when it occurred. She reached out to me to let me know I am not alone. I’ve been warned by the candidate’s business peers to be careful of him. Though meant to be helpful, there is nothing that I can do with this information except to feed my fears.

I know others have been hurt, and I could not expect them to come forward if I too was afraid and not speaking up. I came forward finally—also—because I document…harassment is a cumulative experience, being the repeated recipient of unwanted, inappropriate behaviour by someone in a position which demands trustworthiness and civility. Someone who should never be enabled to abuse his authority, especially by a system which looks the other way.

I am a woman living in Milton, Ontario with my husband. Since May of 2015, I have been the repeated victim of unwanted attention, inappropriate attention, verbal and physical harassment and intimidation by our Liberal candidate, Azim Rizvee, his wife, and by various men on his campaign…This matter has now gone to court. This week it was determined that indeed a situation of harassment and intimidation [i]s taking place and proceedings are initiated for a protective order against this man directly and indirectly to ensure the harassment is stopped.

I’m not hiding in the fringes afraid to speak out. I am speaking out. I have verified my claims, and there have been witnesses. In a political election climate, harassment just isn’t that bad it would seem. Even if it means being met in parking lots and warned you’ll be “taught some manners” by a strange man literally waiting for you in the dark. Even if it means you have to endure being aggressively touched, held on to, grabbed, crowded and leaned against by someone you have explicitly told to stay away from you. Even if it means being targeted by someone who ought to have earned the public trust, and systematically intimidated…

A man, a politician--in the party I supported, a party which outwardly upholds women’s rights, justice, peace, accountability--is a bully, a harasser, an intimidator, and his behaviour has impacted me very personally, in very difficult manners, and as yet it has been ignored and swept under the carpet by his party.

But I’m still here. I have been harassed. I am still effected [sic] by this systematic intimidation.

December 7, 2015 – Ms. Newman’s Letter Posted on TorontoImages.com

[36] On December 7, 2015, Ms. Newman wrote an open letter to Prime Minister Justin Trudeau that was posted on the website www.torontoimages.com. Only the portions that the responding parties take issue with are reproduced below:

…I made the choice to resign my membership from the party during this past federal election because I have been the subject of harassment and intimidations by the man who was the Liberal candidate for our Milton riding and his associates. That man is Azim Rizvee. I have attempted to engage the Liberal party for months regarding this situation, which has caused me much distress, and I am not alone. I was the repeated target of physical and verbal harassment, both directly and indirectly, by Mr. Rizvee. This harassment has taken an emotional toll on me and my family, it has required police and court involvement, and I have complained to the party numerous times formally since July, to no avail.

I believe these to be the reasons that he and his campaign targeted me, to demand my support, or alternatively to discredit me for not supporting him. This man has allegedly abused men and women in our community before. There are numerous accounts of abuse carried about by him and his associates.

Mr. Rizvee has conducted himself deplorably in our riding, he and his associates have hurt me and my family.

It is my hope that Mr. Rizvee will be prevented from seeking any further political appointments where he would be in a position to abuse the public trust and to abuse the authority bestowed upon him. [Emphasis added.]

December 14, 2015 – Tweet by Ms. Newman

[37] On December 14, 2015, Ms. Newman sent out a Tweet on Twitter:

and why do I feel that way? have reported harassment by the Milton Liberal since July and the @ liberal party have done nothing to stop him.

[Emphasis added.]

[38] The Plaintiffs did not respond to any of the comments made by Ms. Newman to avoid bringing more attention to the expressions and to otherwise attempt to keep the voters focussed on the campaign issues the Plaintiffs felt important.

II. The Claim for Malicious Prosecution

[39] The 2015 federal election took place on October 19, 2015. Mr. Rizvee did not win.

[40] On November 2, 2015, Ms. Newman attended before a Justice of the Peace to initiate proceedings against Mr. Rizvee for a “Peace Bond” pursuant to s. 810 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, on the basis that she had reasonable grounds to fear that Azim Rizvee would cause personal injury to her or damage to her property. Ms. Newman sought a bond that would require Mr. Rizvee to maintain a 15-20 foot distance from her, including at any future events they both attended.

[41] Although the bond was only sought against Mr. Rizvee, Ms. Newman’s documents indicate she was also seeking to have no direct contact from Dr. Azim, Mr. Butt and another presumably associated individual, Ayaz Malik.

[42] As part of the process, Ms. Newman completed a document detailing the allegations in support of her request for a bond and her general allegation of harassment by Mr. Rizvee. Ms. Newman reiterated her version of the events on July 11, 2015 (the LPC Nomination Meeting), July 16, 2015 (the CN Rail Open House), August 23-24, 2015 (Milton Ribfest) and September 30, 2015 (the Milton Candidates Debate).

[43] Ms. Newman also referenced an event on May 30, 2015, where she was in attendance as a photographer and was approached by Mr. Rizvee who placed his arm around her. In addition, she noted a hearsay account of a rumour suggesting she and the other LPC candidate, Mr. Hamid, were having an affair, alleged to have been spread by Dr. Azim. Ms. Newman does not date when she became aware of this alleged rumour but she does place it in her chronology in the summer of 2015 prior to the Milton Ribfest event.

[44] The September 30, 2015 (Milton Candidates Debate) event is the last point of reference chronologically in support of Ms. Newman’s bond request. There were no allegations relied upon beyond this date in the documents she submitted.

[45] The documents that Ms. Newman was required to complete for the bond make it clear that the information she provided would be vetted by the Justice of the Peace to “determine if there are sufficient reasons to order the person that you fear to attend court for a hearing to decide whether an order to keep the peace (peace bond) will be issued.” After reviewing Ms. Newman’s documents, the Justice of the Peace did decide to order Mr. Rizvee to attend court on December 7, 2015.

[46] Ms. Newman’s peace bond application was resolved on March 11, 2016. Both Ms. Newman and Mr. Rizvee were in attendance at court that day. Mr. Rizvee attended with his counsel, another lawyer from the firm representing the Plaintiffs for this action and motion.

[47] The Crown exercised his discretion and intervened on that date to withdraw the bond application. Prior to withdrawing and on the record, the Crown addressed Mr. Rizvee directly advising him that Ms. Newman “is fearful of you and she does not with [sic] you to ever touch her, speak directly to her, or enter into her personal space going forward from today. So, hopefully that is clearly understood.” The Crown then asked that the application be withdrawn.

[48] Prior to doing so, the presiding judge, Justice LeDressay asked Mr. Rizvee’s counsel for any comments and none were offered by counsel or Mr. Rizvee in response. The peace bond application was then marked withdrawn.

March 11, 2016 – Facebook Comment by Mr. Rizvee

[49] It was Mr. Rizvee who took to Facebook the same day that Ms. Newman’s peace bond application was withdrawn offering the following comments:

…I am very pleased to announce that today the Crown Attorney’s Office in Milton intervened and withdrew the proceeding. There was no hearing and there were no witnesses; it bears no legal consequence to me. The proceeding Ms. Newman initiated was stopped, and that is the end of it.

It was very important for me that these proceedings take their course, and for there to be no cause to question why they unfolded the way they did. It is for this reason that I have refrained from making any public comment about Stacey Newman and her persistent effort to defame me. Believe me, when I say that my patience has been tested. Now that the proceedings are completely withdrawn it is finally appropriate for me to comment.

Ms. Newman has, in her various internet writings, accused me of intimidation, of systemic intimidation, of using intimidation to influence voters, of verbal and physical harassment, of having henchmen, of having sent thugs after her, of bullying, of dirty politics, of buying votes, of hurting constituents, of perverting the political process, of victimizing constituents, of disrespecting ethics and fair conduct, of slandering her, of attacking her, of treating her as a stepping stone to be squashed, of smear tactics, and of preying on constituents, among other allegations.

Such statements are, without exception, lies. Ms. Newman has lied about me over and over again. Ms. Newman will be held to account.

These lies jeopardized our campaign in the 42nd general election…Every vote counted. I am troubled by the thought that Ms. Newman’s lies reached people, changed their minds and cut into our support.

My resolve to be your Liberal candidate for the 43rd general election is unshaken. I pledge to work even harder to keep your trust and support, and I am excited to move forward together with you…

[50] I am not aware of any public comments having been made by Ms. Newman following the bond application being withdrawn.

D. Issues

[51] Pursuant to ss. 137.1(3) and (4) of the CJA, there is the following two-part test on this motion:

137.1 (3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and,

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[52] The following issues are raised by this motion:

a. Were Ms. Newman’s allegedly defamatory statements made in respect of a matter of public interest? b. Have the Plaintiffs discharged their onus of proving that the proceeding has substantial merit? c. Have the Plaintiffs discharged their onus of proving that the Defendant does not have a valid defence? d. Does the public interest in allowing the proceeding to continue outweigh the public interest in permitting Ms. Newman’s statements? e. Does Mr. Rizvee and Dr. Azim’s action for malicious prosecution fall under the same s. 137.1 analysis as their action for defamation? If so then the same four questions (a.-d.) above must be addressed for the malicious prosecution claim.

E. Analysis for Defamation Claim

[53] The Plaintiffs commenced their action against Ms. Newman alleging defamation and malicious prosecution. I will undertake my analysis for each of these claims separately for reasons that will, hopefully, be apparent starting with the defamation allegations.

[54] As noted above, Ms. Newman brings this motion pursuant to s. 137.1 of the CJA. Section 137.1(1) of the CJA explicitly states the purpose of the PPPA as follows:

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.

[55] The initial burden is upon the Defendant to satisfy the court that the Plaintiffs’ claim arises from an expression made by the Defendant that “relates to a matter of public interest”: CJA, s. 137.1(3).

[56] Once the Defendant’s initial burden has been discharged then the onus shifts to the Plaintiffs to establish all of the following: (1) that there are grounds to believe that the underlying proceeding has substantial merit; (2) that the Defendant does not have a valid defence; and (3) that the public interest in the proceeding continuing outweighs the public interest in protection of the impugned expression: CJA, s. 137.1(4); Platnick v. Bent, 2016 ONSC 7340, 62 C.C.L.I. (5th) 115, at para. 80.

[57] In Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC 6785, 272 A.C.W.S. (3d) 68, at paras. 32-48, Dunphy J. provided a helpful review of the developing law with respect to s. 137.1 of the CJA. In doing so, he opined that the appropriate burden of proof should rest somewhere in the middle ground between the civil standard of proof and the frivolous and vexatious pleading standard: Able, at para. 48; Platnick, at para. 83. This standard was reviewed by both parties in submissions before me and not challenged. In other words, both sides argued their respective positions on the basis of Justice Dunphy’s suggested standard. Accordingly, I have accepted it for the determination of this motion. However, I do wish to make a few general comments respecting the burden applicable to these motions before undertaking my analysis.

[58] Justice Dunphy’s rationale for the standard of proof he suggested was to reflect that s. 137.1 motions were intended to be preliminary in timing (i.e. at any stage, including prior to a defendant filing a Defence) and otherwise a “fast-track to summary disposition” before more complete evidence could reasonably be expected to bloom. Justice Dunphy contrasted this with the “best foot forward” expectation of summary judgment motions.

[59] The chronology for the motion before me suggests that these s. 137.1 motions are following a trajectory not significantly dissimilar to summary judgment motions. The motion here deals with expressions made between July and December, 2015. The Statement of Claim was issued in March, 2016. Motion materials, including sworn affidavits from the parties and others, were filed. Cross-examinations were undertaken. Finally, the motion was argued over two days in December and January, 2017. In my view, this is a timeline and process rivaling if not exceeding many of the summary judgments that regularly come before this court. Despite the intention of the legislation, I expect that the extended timeline and process for these s. 137.1 motions will become more the norm than the exception given that the outcome could be the end of the litigation similar to summary judgments. If so, then I suggest that the standard civil burden of the balance of probabilities, or something approaching that standard, should apply.

[60] The above comments are offered towards any assistance they may bring to the evolution of these relatively new motions. As stated, I have applied the standard of proof suggested by Justice Dunphy given that was the basis on which counsel argued their respective positions. I can state that the outcome would have been the same on this motion whether I had applied Justice Dunphy’s suggested standard or one approaching the balance of probabilities.

III. Public Interest

[61] With respect to determining whether the matter is “of public interest”, the Supreme Court of Canada provides guidance in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, stating:

a. “In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole. The defamatory statement should not be scrutinized in isolation”: Grant, at para. 101. b. “[T]he public interest is not synonymous with what interests the public…It is enough that some segment of the community would have a genuine interest in receiving information on the subject”: Grant, at para. 102. c. “The authorities offer no single ‘test’ for public interest, nor a static list of topics falling within the public interest”: Grant, at para. 103. d. “To be of public interest, the subject matter ‘must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached’”: Grant, at para. 105. (References omitted.)

[62] The question to be answered is whether Ms. Newman’s expressions viewed objectively, including context, and as a whole address matters of public interest.

[63] I have little difficulty in concluding that Ms. Newman’s expressions related to a matter of public interest.

[64] Ms. Newman’s expressions were made proximate to the LPC nomination and the 2015 federal election. Ms. Newman’s comments were directed at Mr. Rizvee’s candidacy and related conduct in the campaign, the conduct of those associated with his campaign, including his campaign manager, Dr. Azim, and Mr. Butt, and the related conduct or lack of action by the LPC. Viewed objectively and as a whole, Ms. Newman’s expressions were related to the suitability of Mr. Rizvee for the LPC nomination for the upcoming 2015 election. Mr. Rizvee’s candidacy for public office proximate to the 2015 federal election is subject matter that may fairly be described as one of public interest. While there is no static list of topics which qualify as matters of public interest, politics is the classic example of such a topic. As such, I am satisfied that Ms. Newman has met her burden under s. 137.1(3).

[65] There is no question that Ms. Newman’s statements were strongly opposed to Mr. Rizvee’s candidacy. There is no question that she at times used colorful and perhaps controversial language. However, these elements do not alter the substance of her expressions from being in the public interest for the reasons set forth above.

[66] Similarly, the fact that Ms. Newman continued to make comments after the election respecting Mr. Rizvee’s candidacy and related conduct during the campaign, the conduct of those associated with his campaign, and the related conduct or lack of action by the LPC, does not alter their substance. It is hardly unusual for discussions about elections and candidates to continue after the election results are in. Again, the question to be determined is whether the expressions address matters of public interest. Whether made before or shortly following the election, Ms. Newman’s comments regard subject matter that is in the public interest. Any attempt to draw a line in the sand between comments made before the election and after is simply artificial.

[67] Given my conclusion that Ms. Newman has satisfied s. 137.1(3), I am required to dismiss the Plaintiffs’ claim unless they can meet the burden now shifted to them, which I address below.

IV. Substantial Merit

[68] The basic elements of a defamation claim are not controversial. Justice Dunphy in Able, at para. 40, noted that the party “advancing a defamation claim bears the burden of establishing only that the words were published, that they refer to him or her and that they would have the effect of lowering his or her reputation in the eyes of a reasonable person. The plaintiff need not prove that the words were untrue.”

[69] The specific language of s.137.1 requires the Plaintiffs to establish that there are “grounds to believe” that their defamation proceeding has substantial merit.

[70] The developing case law for these motions has provided some guidance for how the court should interpret the “grounds to believe” threshold.

[71] Justice Dunphy suggested that the appropriate standard is to require the plaintiff to establish that there are “reasonable grounds to believe”: Able, at para. 45 (emphasis in original). Justice Dunphy suggested that the “reasonable grounds to believe” standard should apply to both the plaintiff’s obligation to satisfy the court respecting the merits of the claim and the lack of merit to the defences raised by the defendant.

[72] Relying upon the decision of the Supreme Court of Canada in Muguesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, Justice Dunphy refined this standard further in Able, at para. 48, to suggest that the court must find “‘credible and compelling evidence’ both of the substantial merits of the claim and the validity of the affirmative defences proposed”.

[73] Justice Dunphy concluded that the plaintiff at this stage of the analysis has the burden of satisfying the court that “there is credible and compelling evidence supporting the claim as being a serious one with a reasonable likelihood of success”: Able, at para. 49.

[74] Both sides to the motion before me referenced and relied upon Justice Dunphy’s suggested standard in their arguments. Again, my analysis has proceeded on the basis of this suggested interpretation.

[75] Returning to the elements of a defamation claim, there is no doubt that the allegedly defamatory expressions made by Ms. Newman were published by her in various social media forums, including Facebook, Twitter, her own blog and message boards.

[76] There is no doubt on their face that the allegedly defamatory expressions made by Ms. Newman refer to the Plaintiffs. They do so explicitly.

[77] I further find that there are reasonable grounds to believe that the remainder of the test for defamation, that the expressions would tend to lower the reputation of the Plaintiffs in the eyes of the reasonable person, will be satisfied in this case. This is particularly so given the number and duration of the expressions made by Ms. Newman, which occurred over the course of six months, and the character of these comments, which were as grave as suggesting criminal conduct and other misconduct over the course of the political campaign. Further, these were comments made by an identifiable individual involved in the Plaintiffs’ political community.

[78] As noted by Dunphy J. in Platnick, at para. 92, defamation is a strict liability tort; there is no requirement for the Plaintiffs to show any actual damage to their reputations to succeed. For their claim to succeed, the Plaintiffs need only prove that the comments made would tend to have the effect of lowering their reputation in the eyes of the reasonable person.

[79] As was the case in Platnick, I find that the limited burden of proof upon the Plaintiffs is reasonably likely to be satisfied in this case. The Plaintiffs have met their burden of establishing that “there is credible and compelling evidence supporting the claim as being a serious one with a reasonable likelihood of success”.

V. Valid Defence

[80] Given my finding above, I am now required to determine whether the Plaintiffs have met their burden of establishing that there are reasonable grounds to believe that the moving party has no valid defence to the underlying claim. I find they have not, and grant Ms. Newman’s motion on that basis for the reasons set forth below.

[81] Prior jurisprudence on this element has not established a definitive standard of proof. However, Justice Dunphy has again offered helpful guidance where he suggested that the appropriate standard will fall somewhere between the full civil standard and the low standard of “frivolous and vexatious”: Platnick, at para. 98. Again, this was the standard argued for the motion and the one I have based my analysis below on.

[82] For the purpose of any assistance these thoughts may offer to the development of these motions, I reiterate my view on the evidentiary burden. For the reasons set out above, if I am correct that these motions will evolve such that the timeline and process rivals those for summary judgments then I suggest that the balance of probabilities, or something approaching that standard, should apply for this burden of proof on the plaintiff also. The overall burden on the plaintiff for these motions should be consistent and well defined. In my view, the balance of probabilities is the appropriate and obvious threshold.

[83] I appreciate that no Statement of Defence has yet been filed. Ms. Newman has raised two defences in the materials before me to the defamation claims: a limitations defence and a fair comment defence.

[84] In support of her limitations defence, Ms. Newman argues that, pursuant to s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12 (LSA), the Plaintiffs ought to have sent notice of their claim within six weeks after the alleged libel came to their knowledge. Further, pursuant to s. 6, Ms. Newman argues that the actual claim was subject to a three-month limitation period.

[85] As support for her position, Ms. Newman referenced John v. Ballingall, 2016 ONSC 2245, [2016] O.J. No. 1717, where Justice Trimble applied the LSA limitation period to electronic publications.

[86] The statements complained of by Mr. Rizvee and Dr. Azim were made between July 12, 2015 and December 7, 2015. The statement of claim was issued on March 17, 2016, which is beyond the LSA three-month limitation period.

[87] The Plaintiffs argue that John was decided in the context of a newspaper’s electronic edition and draw a distinction based on the different forums used by Ms. Newman. They submit that John is not applicable to the instant case where Ms. Newman published her comments in various social media forums, including Facebook, Twitter, her own blog and message boards.

[88] Even if there is still a question of whether the LSA limitations period would be applicable to a Facebook or blog post, it is not appropriate to characterize the potential limitations defence as “invalid” pursuant to the test under s. 137.1. At the very least, there is an argument on both sides and, therefore, a triable issue here.

[89] In support of her fair comment defence, Ms. Newman argues that her various impugned communications fall within the parameters set out by the Supreme Court of Canada in WIC Radio v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 28:

a. the comment must be on a matter of public interest; b. the comment must be based on fact; c. the comment, though it can include inferences of fact, must be recognisable as comment; d. the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts? e. even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice. [Emphasis and citations omitted.]

[90] Point (a) above has been satisfied, as discussed earlier in these reasons.

[91] Arguably, point (b) has also been met. Although there is dispute between the parties as to the details of the incidents that preceded the impugned communications, there is certainly a factual narrative in which to ground Ms. Newman’s comments.

[92] Respecting point (c), it is at least arguable that Ms. Newman’s statements are recognisable as comment. The Plaintiffs argue that Ms. Newman’s posts are assertions made without supporting evidence and that they, therefore, cannot be characterized as comments. In support of this position, the plaintiffs cite para. 30 of WIC Radio, which reads in part:

…At that point, it is the media that seeks to excuse defamatory remarks on the basis that they are "comment" on a "matter of public interest". Ordinary principles of litigation put the burden of proof on the party making the assertion… The cases establish that the notion of "comment" is generously interpreted... [References omitted.]

[93] With respect, I interpret WIC Radio to require a liberal application of the “comment” label to communications in defamation actions. In this case, Ms. Newman’s statements are not bald assertions, despite the Plaintiffs’ characterization of them as such. These were not personal attacks painted over with a thin veneer of public interest. In her materials, Ms. Newman provides extensive accounts of the incidents leading to her impugned statements. In other words, Ms. Newman’s expressions have context in the 2015 political campaign thereby, in my view, making them more prone to being recognized as comments.

[94] Respecting the fourth element of the WIC test, it is at least arguable that any person could honestly express that opinion given the strong factual narrative foundation for Ms. Newman’s expressions. Again, her opinions flow from those direct experiences.

[95] Finally, there was no meaningful evidence of malice before me.

[96] Similar to my conclusion respecting the limitations defence, I am unable to find that the Plaintiffs have demonstrated reasonable grounds to believe that the potential fair comment defence is “invalid” pursuant to s. 137.1. At the very least, there is an argument on both sides and, therefore, a triable issue.

[97] On that basis, the Plaintiffs have failed to meet their burden for this part of the analysis and Ms. Newman’s motion is granted.

VI. Balancing

[98] Had the Plaintiffs been able to meet their burden under s. 137.1(4)(a)(ii), I would be called upon to consider whether the public interest in allowing the proceeding to continue outweighs the public interest in the impugned communication.

[99] I agree with Justice Dunphy that these two competing public interests must each be examined separately: Platnick, at para. 120.

[100] Mr. Rizvee’s affidavit sworn August 16, 2016 offers the following evidence in support of his claim to reputation harm suffered from Ms. Newman’s comments:

a. That while canvassing door to door during the election he was asked about “comments they read online, and I had been specifically asked about Stacey’s comments.” He lost the election by 2,438 votes and suggests that Ms. Newman’s statements “likely had some effect on the outcome of the election”; b. That Ms. Newman’s comments “affects my reputation and tarnishes my prospects for a future political career”; c. That his MinMaxx real estate company has experienced a “substantial reduction in units sold, and we believe this is more than just a market issue but a market share issue”; and d. That he has “personally suffered embarrassment and humiliation”. In addition, his three children have seen Ms. Newman’s comments online and told him that “it upsets them.”

[101] Dr. Azim’s affidavit sworn August 16, 2016 offers the following evidence in support of her claim to having her reputation harmed by Ms. Newman’s comments:

a. That she has noticed people at events she attends are “hesitant to talk to me or be seen with me”; b. That she has been informed by MinMaxx employees that prospective customers are asking whether Ms. Newman’s comments are true. Flowing from this, Dr. Azim expresses her concern that these comments “have dissuaded prospective customers from even considering MinMaxx for their real estate need”; and c. That she was rejected for a position on the Halton Healthcare Board in February, 2016 “on the basis that my ‘interesting past experience’ meant that I was not appropriate”.

[102] There were no other significant details provided of the harm claimed by the Plaintiffs and no supporting affidavits or documentation.

[103] In my view, the Plaintiffs have provided no meaningful evidence of harm to their reputation attributable to the comments made by Ms. Newman.

[104] The suggestion that Ms. Newman’s comments have negatively impacted the Plaintiffs’ real estate business is pure conjecture.

[105] The first point to make is that none of Ms. Newman’s comments were directly about the Plaintiffs’ real estate business or their conduct as real estate professionals. Her comments were respecting Mr. Rizvee’s candidacy and his conduct during the campaign, along with those associated with his campaign.

[106] Mr. Azim states that units sold are down substantially and offers his “belief” that this is due to forces other than the market, by which I presume he means Ms. Newman’s comments. There is no documentation supporting even the first part of this equation (i.e. that there is a significant reduction in the number of units sold that is not in sync with general market forces). Surely, this type of evidence was available to the Plaintiffs to file, even if imperfect. There is absolutely no evidence to support the inference that any reduction in sales was caused by Ms. Newman’s statements. The most we have is Dr. Azim’s affidavit evidence that she has been informed by MinMaxx employees that prospective customers are asking whether Ms. Newman’s comments are true. We do not have an affidavit from any of the employees who have provided this information to Dr. Azim or even the name of these source employee(s) contrary to the requirements of Rule 39.01(4).

[107] Mr. Rizvee’s suggestion that Ms. Newman’s statements “likely had some effect” on his loss in the 2015 federal election is also speculative. The only point of reference is Mr. Rizvee stating that he was asked about Ms. Newman’s comments when campaigning door to door. There are no specifics at all beyond this broad comment. How many people asked Mr. Rizvee about Ms. Newman’s comments? What was asked? Presumably, Mr. Rizvee attempted to address any concerns raised. What was the response to Mr. Rizvee when he offered his rebuttal? There is not one affidavit from a constituent attesting to being influenced by Ms. Newman’s comments.

[108] Mr. Rizvee’s suggestion that Ms. Newman’s statements tarnished his future political prospects is entirely speculative. No point of reference of any kind is offered for this conclusion.

[109] Dr. Azim’s additional evidence suffers from similar flaws to that of her spouse.

[110] She attests to noticing a reluctance on the part of people to approach her at events, which she attributes to the impact of Ms. Newman’s comments. There is nothing offered in support of this inference. It is purely speculative.

[111] Dr. Azim states that her application for a hospital board position was rejected on the basis of her “interesting past experience”, which Dr. Azim wants the court to infer is a reference to Ms. Newman’s statements. Again, there is nothing offered in support of this inference. It is pure speculation. Again, we do not have an affidavit from the individual who provided the “interesting past experience” explanation to Dr. Azim for her being denied the board position or even the name of this source person, contrary to the requirements of Rule 39.01(4).

[112] The only other evidence offered to establish harm to the reputation of the Plaintiffs was the statement by Mr. Rizvee that his children were “upset” after having read Ms. Newman’s statement online. It seems entirely reasonable to suggest that any children could be upset reading negative comments about their parents online. However, I fail to see how this offers any evidence to support the argument that Ms. Newman’s comments would have the effect of lowering the Plaintiffs’ reputation in the eyes of a reasonable person. Obviously, the reaction of the Plaintiffs’ children cannot be equated with or offer any meaningful measure of the view of reasonable person.

[113] I would also note here that the Plaintiffs provided no meaningful evidence of who viewed Ms. Newman’s communications, neither the number nor composition of likely viewers. This evidence would have been relevant to establishing how serious any harm suffered by the Plaintiffs might be.

[114] Finally, I note that the Plaintiffs have not addressed the impact of the other negative comments being made in various electronic forums about Mr. Rizvee’s candidacy contemporaneous to those of Ms. Newman. As Ms. Newman’s July 8, 2016 affidavit states, Mr. Rizvee and his campaign for federal office were the subject of comments by others in addition to those of Ms. Newman. Ms. Newman suggested these other comments numbered in the “thousands”. Ms. Newman attached some of these to her July 8th affidavit, including the following excerpts:

a. “We saw what happened on Liberal’s candidate nomination day. All the way in the Polling Station (BRS) Sign, Sign and Sign even the VIP Parking Sign like 5 Star hotel facilities. In fact the Polling Station was hijacked”; b. Another online discussion of unwanted Rizvee election signs being placed on residential lawns included an exchange where one person commented “If you don’t like those shenanigans you should see some of his other shenanigans…” and another responded “Oh, I have. Believe me.” Another person commented in the same thread that “We went away on vacation…and came home to a sign on our front lawn that we did not authorize” and another responded “That’s kind of creepy that another one just showed up after you took it down. Like creepy in a stalker kind of way”; c. In another online discussion one person commented “… we have been told that a certain candidate has been using his real estate services to go into people’s houses and drop off his card. That’s not asking for your vote, that’s trespassing.” In response, another stated “Considering how he made the recent charity event look like he organized it, him allowing any dirty tricks on his staffs part is not surprising”; d. In another, the person stated “Azim Rizvee’s campaign is a dishonest mockery of what a genuine politician should be. He wants to win by any means…”; e. In yet another an individual posted a ServiceRating.ca review stating “Azim Rizvee is a realtor in Ontario, Milton. Azim is rated as bad on ServiceRating.ca by 8 voters”. This commentator then added “I can’t bring myself to vote for my local Liberal candidate in Milton. I don’t like who he is. The reviews of his service record as a real estate agent confirm my fears. He is not someone I trust. I voted in the Liberal nomination meeting …And it wasn’t for him…Sigh”.

[115] Clearly, there were other comments critical of Mr. Rizvee and his campaign circulating at same time as those of Ms. Newman. Unlike Ms. Newman’s statements, some of these other comments were specifically critical of Mr. Rizvee’s real estate business, whereas Ms. Newman’s were not. The Plaintiffs must provide some meaningful evidence of a causal link between the damages they claim and the comments made by Ms. Newman. The simple point is that the Plaintiffs did not address the impact of these other posts and how the statements can be extracted to isolate Ms. Newman’s comments as the cause of the Plaintiffs’ purported damages.

[116] As an additional consideration, Justice Dunphy, in Platnick at para. 86, fairly, cautioned that the evidence available on a s. 137.1 motion must be viewed in the context of what is expected to be a streamlined hearing brought at a very preliminary stage of an action where it would be unfair to expect the more fulsome evidence typically marshalled for summary judgment motions. However, as I have noted, the motion before me was neither streamlined nor preliminary.

[117] The motion here deals with expressions made by Ms. Newman between July and December, 2015. The Statement of Claim was issued in March, 2016. Motion materials, including sworn affidavits from the parties and others, were filed. Cross-examinations were undertaken. The motion was argued over two days in December and January, 2017. In my view, this is a timeline and process rivaling, if not exceeding, many of the summary judgments that regularly come before this court. The Plaintiffs had the time (i.e. about two years from when the comments were made to when the argument on the motion commenced) and process to develop the evidentiary record they would need to meet their burden on this motion. The Plaintiffs were unable to do so despite having an extended timeline and process comparable to that for summary judgment motions.

[118] Finally, and bearing in mind the contextual approach required for this analysis, I have considered that Ms. Newman’s comments were directed at a politician in the midst of a campaign. In that regard, I adopt the following comments of Professor Brown in his text Brown on Defamation, loose-leaf, 2nd ed., vol. 1 (Toronto: Thomson Reuters, 2016) at p. 4-179:

However, public officials have also been admonished not to go about with their feelings on their sleeves; persons who expose themselves to public life must expect closer scrutiny. They frequently are the subject of comments and criticism, sometimes unfair and unwarranted; the public recognition of this insures that such remarks are likely to have less of an impact than similar remarks made against others in different circumstances. For this reason, courts generally recognize that greater latitude should be allowed to persons who criticize those who hold public office. Criticism which might not be acceptable in the case of a private person may be acceptable where it assesses the conduct of a public official.

[119] This does not mean that someone who offers himself or herself as a candidate for public office is open to any and all commentary. However, the candidate, in this case Mr. Rizvee, is in the unique position where he has made the decision to present himself to be assessed and commented upon respecting his suitability for public office. This assessment and public commentary is at the heart of the democratic process. The candidate must know that he will be the subject of criticism as well as support. As a result, I agree with Professor Brown that, generally speaking, comments made about the conduct of a candidate for public office must be assessed appreciating that greater criticism both in volume and content would be an expected part of offering oneself for that role as compared to an ordinary person not in the public light. I have considered Ms. Newman’s comments here with that in mind.

[120] The evidence above does not come close to the “sufficiently serious” harm suffered or likely suffered threshold set forth in s. 137.1(4)(b). Borrowing from the comments of Justice Dunphy in Platnick, my view is that the harm suffered or likely to be suffered by the Plaintiffs from Ms. Newman’s comments is at the lower end of the spectrum. This would weigh strongly in favour of dismissing the defamation claims.

[121] The public interest in permitting the merits of the defamation claim to proceed must also consider the motivation of the Plaintiffs. Mr. Rizvee acknowledged that the claim was brought, at least in part, further to his March 11, 2016 Facebook post declaring that Ms. Newman would be “held to account.” The Plaintiffs’ claim was served within a week of that declaration, seeking $16 million dollars in total damages. Together, this strongly suggests to me the Plaintiffs intended the claim to send a warning and related chill to Ms. Newman and others who might be inclined to comment against the Plaintiffs’ interests. In defamation cases, there can be a wide range to the ultimate damages awarded. However, on the face of this claim it is difficult to see how the Plaintiffs could quantify a $16 million damages award. This would also weigh strongly in favour of dismissing the defamation claims.

[122] It is an obvious statement that free speech is one of the fundamental underpinnings to any democratic, open and tolerant society. The right to offer commentary free from fear of litigation is especially critical to our election process. How are citizens to make an informed, independent and objective selection of who should lead us without the exchange of ideas, critical or otherwise? The public has a strong interest in its citizens exchanging ideas respecting the merits of a candidate for public office. This weighs in favour of protecting the comments of Ms. Newman made in the context of such a selection.

[123] There is also evidence before me of libel chill from the Plaintiffs’ claim. Ms. Newman’s evidence was that the costs alone from this action could bankrupt her. It is a reasonable inference that this would restrain both Ms. Newman’s inclination and that of others to comment on matters of public interest. This weighs in favour of protecting the comments of Ms. Newman made in the context of such a selection.

[124] The public interest in allowing the proceeding to continue here is strongly outweighed by the public interest in the impugned communication.

VII. Malicious Prosecution

[125] Mr. Rizvee claimed $1.5 million in damages, with further special damages to be determined, for malicious prosecution.

[126] Section 137.1 of the CJA is a fairly new provision and, to my knowledge, a parallel claim for damages under malicious prosecution has not been dealt with by any jurisprudence thus far.

[127] The question to be answered is whether Ms. Newman’s statement to the Justice of the Peace viewed objectively, including context, and as a whole addresses matters of public interest.

[128] The statement made by Ms. Newman to the Justice of the Peace to support her peace bond application for the most part repeats the comments detailed above for the defamation action. Ms. Newman sought to have the court order that Mr. Rizvee maintain a 15-20 foot distance from her, including at any future events they both attended.

[129] The Plaintiff argued that the malicious prosecution claim could not be terminated pursuant to s. 137.1 of the CJA because it could not be characterized as an expression in relation to a matter of public interest.

[130] The statement by Ms. Newman was made to a Justice of the Peace in camera. The statement was not made publicly. It forms part of the court record but was distributed only to the Crown and Mr. Rizvee through his counsel.

[131] I acknowledge that whether the forum for the statement is private or public forms part of my overall consideration. However, the nature of the forum is not determinative of whether the expression is one involving the public interest.

[132] I agree with the comments of Dunphy J. in Platnick, at para. 64, where he states that “It is the subject matter of the communication that must be scrutinized and not the medium of the communication itself.” (Emphasis in original.) In other words, the subject matter of a private expression can still involve the public interest. This is explicit in the definition of expression provided in s. 137.1(2), namely “any communication, regardless of whether it is made publicly or privately…”

[133] I return to the to the enumerated purposes of s. 137.1 of the CJA:

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

(a) to encourage individuals to express themselves on matters of public interest; (b) to promote broad participation in debates on matters of public interest; (c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and (d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

[134] Ms. Newman sought to invoke a Criminal Code remedy on the basis that she had reasonable grounds to fear that Azim Rizvee would cause personal injury to her or her family or damage to her property.

[135] The statement made by Ms. Newman in support of her Criminal Code peace bond application cannot, in my view, be characterized as an expression on a matter of public interest. This was a statement provided by Ms. Newman relating to a private matter, namely whether the state would intervene to restrict Mr. Rizvee’s actions in relation to her.

[136] Although the allegations made by Ms. Newman in support of her bond application were mostly the same comments underpinning the defamation claim, this does not change the character of the expression viewed objectively. There is no public interest component to the peace bond process or the statement Ms. Newman made in support of her bond application. The statement was provided by one citizen in support of the state intervening to restrict the conduct of another citizen. This is an entirely private matter between the two individuals involved. It was not an an expression on a matter of public interest. This statement is not the kind of expression section 137.1 was intended to protect.

[137] In conclusion, Ms. Newman has failed to satisfy me that her statement to the Justice of the Peace in support of her peace bond application was made in relation to a matter of public interest. As such, her motion to dismiss the action against her for malicious prosecution is dismissed.

[138] In dismissing the motion respecting the malicious prosecution claim, I make no comment on the merits of this claim, the likely success of the claim at trial or whether it would survive a summary judgment motion.

[139] I wish to address one, final argument made by the Plaintiffs.

[140] The Plaintiffs argued that the language of s. 137.1 referencing the dismissal of a “proceeding” must be interpreted to mean that only the entire action can be dismissed. In other words, that the court must be satisfied that s. 137.1 offers protection to each and every damage claimed before an action can be dismissed. Specifically, the Plaintiffs argue that if I am not satisfied that s. 137.1 applies to the malicious prosecution claim then I must not dismiss the defamation claim separate and apart. They argue that the court may only dismiss the whole of a claim, not any part, given the use of the term “proceeding”. I do not accept this argument.

[141] If the Plaintiffs are correct then any expression otherwise insulated by s. 137.1 would lose such protection simply by including some other head of relief in the same Statement of Claim. This is far too rigid an interpretation and completely contrary to the stated intentions of s. 137.1. In my view, it is completely open to the court to halt any part of a claim that engages and satisfies the test for dismissal set forth in s. 137.1.

F. Conclusion

[142] The Defendant’s motion to dismiss the Plaintiffs’ defamation claim is granted.

[143] The Defendant’s motion to dismiss the Plaintiffs’ malicious prosecution claim is dismissed.

[144] The parties are encouraged to discuss and come to an agreement on the costs of this motion. If they cannot agree then I will accept brief, written costs submissions. The Defendant shall provide her cost submissions, not exceeding three pages double spaced plus a Bill of Costs and any relevant Offer to Settle, within 20 days from the date of this decision. The Plaintiffs shall provide their cost submissions, not exceeding three pages double spaced plus a Bill of Costs and any relevant Offer to Settle, within 30 days from the date of this decision. Any reply submissions from the Defendant shall not exceed two pages double spaced and be provided within 35 days from the date of this decision.

D. Fitzpatrick J.

Released: June 28, 2017

COURT FILE NO.: 880/16 DATE: 2017 06 28 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: AZIM RIZVEE and RABIYA AZIM Plaintiffs (Respondents) – and – STACEY NEWMAN Defendant (Moving Party) REASONS FOR JUDGMENT D. FITZPATRICK J. Released: June 28, 2017