COURT OF APPEAL FOR ONTARIO

CITATION: Nanda v. McEwan, 2020 ONCA 431

DATE: 20200702

DOCKET: C67816

Strathy C.J.O., Tulloch and Coroza JJ.A.

BETWEEN

Irwin Nanda

Plaintiff (Respondent)

and

Derrick McEwan, Avelino Carvalho, Angela Mason and Satish Sharma

Defendants (Appellants)

Kevin J. Scullion, for the appellants

Ivanna Iwasykiw, for the respondent

Heard: In writing

Appeal from the order of Justice Leonard Ricchetti of the Superior Court of Justice, dated January 7, 2019, with reasons reported at 2019 ONSC 3357.

Strathy C.J.O.:

A. Introduction

[1] This is an appeal from an order made under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), dismissing an “anti-SLAPP” motion brought by the appellants.[^1] The action is for defamation, based on statements made by the appellants in the midst of the respondent’s unsuccessful campaign for election as president of the Toronto Local of the Canadian Union of Postal Workers (“CUPW”).

[2] The motion judge dismissed the appellants’ motion to dismiss the action, holding that they had not established that the statements at issue related to a “matter of public interest”, as required by s. 137.1(3). Although it was not necessary to consider whether the respondent’s claim met the requirements of s. 137.1(4), the motion judge undertook the public interest balancing assessment in s. 137.1(4)(b) and found that the public interest did not weigh in favour of the protection of the statements. He therefore dismissed the appellants’ motion.

[3] For the reasons that follow, I would dismiss the appeal. I reach this result through a different course of reasoning than the motion judge. In my respectful view, the motion judge erred in his analysis under s. 137.1(3). The proper application of that section, as explained in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161[^2], leads to a conclusion that the expressions relate to a matter of public interest.

[4] However, conducting the additional analysis required by s. 137.1(4), I come to the same result as the motion judge: having regard to the merits of the proceeding and the harm likely to have been suffered by the respondent, the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expressions at issue.

B. Factual Background and Procedural History

[5] The appellants are members of the Toronto Local of CUPW. The respondent had been involved in a leadership capacity in the Toronto Local of CUPW from 1990 to 2011, then as a member of the executive of the Ontario Federation of Labour from 2011 to 2016. In 2016, he resumed involvement in CUPW activities and ran in the 2017 election for President of the Toronto Local. The appellants opposed his candidacy.

[6] The respondent alleged that during the election campaign, the appellants made defamatory statements about him in two invitation-only “WhatsApp” chat groups and in posters or flyers that were distributed to members of the local during the election. The first WhatsApp group had 183 members and the second had 100, with some overlap in membership. The statements included allegations that the respondent:

• was a racist, a bigot, a sexist, a bully and a thief;
• was corrupt;
• had “rigged” a union election;
• had stolen from membership and had abused his position of trust;
• had used union funds to buy votes; and
• had engaged in a criminal conspiracy.

[7] The respondent commenced an action in the Small Claims Court, a branch of the Superior Court of Justice. The appellants’ statement of defence did not dispute that the statements were made but argued that they were not defamatory and raised several defences, including justification, absolute and/or qualified privilege, fair comment, and public interest communication.

[8] The appellants moved before a deputy judge of the Small Claims Court to dismiss the action on three grounds: first, that the proceeding was properly the subject of arbitration under the union constitution; second, that the respondent had failed to give notice under the Libel and Slander Act; R.S.O. 1990, c L.12; and third, that the action improperly limited public debate under s. 137.1 of the CJA. The deputy judge stayed the action as a result of the respondent’s failure to give notice of his claim. He did not consider it necessary to deal with the anti-SLAPP motion.

[9] The respondent appealed that order to a single judge of the Divisional Court. The appellants cross-appealed on the arbitration and anti-SLAPP issues. The Divisional Court judge allowed the appeal, concluding that there was no evidence before the deputy judge to permit a conclusion that the WhatsApp statements constituted a “broadcast” under the Libel and Slander Act. He dismissed the cross-appeal with respect to the arbitration issue.

[10] The appellants indicated that they wished to pursue the anti-SLAPP motion. Rather than remitting the motion to the deputy judge, the Divisional Court judge (hereinafter the “motion judge”) agreed to deal with the matter himself. The parties agreed that he could address the matter through written submissions.

[11] The motion judge dismissed the anti-SLAPP motion. He concluded that the impugned expressions were not related to a matter of public interest, and even if they were, the public interest did not weigh in favour of protecting such expressions.

[12] Subsequent to the motion judge’s decision, this court held in Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599, 147 O.R. (3d) 84, that a deputy judge of the Small Claims Court has no jurisdiction to make an order under s. 137.1, as that jurisdiction rests with a “judge”, meaning a Superior Court judge.

[13] The appellants filed a motion for leave to appeal to this court. The panel that heard the motion directed that leave is not required as an appeal lies to this court under s. 6(1)(d) of the CJA, which provides for an appeal as of right from an order under s. 137.1.

C. The Motion Judge’s Reasons

[14] The motion judge found that the appellants did not meet the threshold test under s. 137.1(3) of establishing that the expressions at issue related to the public interest. The purpose and context of the statements at issue were “to make disparaging, inflammatory and allegedly defamatory comments about the Plaintiff to other local union members to get those other members not to vote for the Plaintiff.” Although some 200 members of the local saw the WhatsApp messages, they were not members of the general public or a segment of it. Therefore, neither the public nor a segment of the public had an interest in the expression.

[15] The motion judge found that the election of a local union official is not a matter of public interest. He reasoned that local union elections are private matters, unlike the election of public officials, such as municipal councillors. Elections that take place in private institutions, such as churches, private companies, community and charitable organizations, and law firms, are not of public interest, as they “involve highly local, limited and private interests.”

[16] The motion judge suggested that the public interest may arise by virtue of: (a) the appointment/election of persons in public positions; and also (b) the appointment/election of those that engage in public interest issues, such as environment, planning, and the arts. However, he appears to have found neither category to be at play.

[17] As his conclusion on the threshold test was dispositive of the motion, the motion judge did not consider the merits of the proceeding or the defences available under s. 137.1(4)(a). He did, however, comment on the public interest balancing under s. 137.1(4)(b). He found that the statements at issue were not worthy of protection because they did not encourage debate on public matters. They were “vulgar and vitriolic statements meant to denigrate and defame the character of the Plaintiff to sway other voters not to vote for the Plaintiff”, referring to Levant v. Day, 2019 ONCA 244, 145 O.R. (3d) 442, at paras. 22-23, leave to appeal refused, [2019] S.C.C.A. No. 194.

D. Issues

[18] The appellants’ grounds of appeal can be summarized as follows:

1. the motion judge erred in determining that the expression did not relate to the public interest under s. 137.1(3);

2. the motion judge erred in opining on public interest balancing under s. 137.1(4)(b), as his determination under s. 137.1(3) was dispositive; and

3. the motion judge erred in improperly determining the minimum threshold for protected political speech in his s. 137.1(4)(b) analysis, holding that political “attack ads” are never protected forms of speech.

E. The Parties’ Submissions

(1) Appellants

[19] First, the appellants submit that the motion judge erred in finding that unions are “private” institutions and that the election of a local union President is a private matter and not a matter of public interest. He improperly focused on a small number of members of the local (approximately 200) and should have considered whether the union has the ability to affect public policy through government lobbying and advocacy on behalf of workers. They submit that the government/non-government distinction conflicts with binding authority of this court: United Soils Management Ltd. v. Mohammed, 2019 ONCA 128, 53 C.C.L.T. (4th) 1, leave to appeal refused, [2019] S.C.C.A. No. 153.

[20] Second, the appellants submit that once the motion judge found that the expressions did not relate to a matter of public interest under s. 137.1(3), he should have refrained from characterizing the expressions or determining whether they were deserving of protection under s. 137.1(4)(b). In proceeding to do so, he improperly interfered with the trial judge’s jurisdiction and impaired the appellants’ ability to raise defences on the merits.

[21] Third, the appellants submit that the motion judge improperly determined the minimum threshold of protection for political speech, in essence holding that all political “attack ads” are not protected forms of speech.

(2) Respondent

[22] First, the respondent submits that the motion judge correctly determined that the purpose of an organization should be examined to determine whether its elections are matters of public importance. The motion judge did not treat the number of members as a determinative factor; he was simply noting that the number of interested parties was limited to the members of the collective bargaining unit.

[23] Second, the respondent submits that the additional comments on public interest balancing under s. 137.1(4)(b) were merely obiter dicta and would not restrict the ability of the trial judge to decide the matter on the evidence.

[24] Third, because the comments under s. 137.1(4)(b) were obiter dicta, they do not represent a determination of the minimum threshold for protected political speech. In the alternative, the respondent submits that the motion judge properly determined that bald attacks are not protected under the public interest balancing test.

F. Analysis

(1) Section 137.1 of the CJA – The “Anti-SLAPP” Provision

(a) Purpose

[25] Section 137.1 of the CJA is designed to prevent the legal process from being used as a weapon to limit debate on matters of public interest. Section 137.1(1) explains that its purpose is:

(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.

[26] In Pointes, the seminal case on the interpretation of s. 137.1, Doherty J.A. provided the following summary of the operation of the legislation, at para. 7:

s. 137.1 allows a defendant to move any time after a claim is commenced for an order dismissing the claim. The defendant must demonstrate that the litigation arises out of the defendant’s expression on a matter relating to the public interest. If the defendant meets that onus, the onus shifts to the plaintiff to demonstrate that its lawsuit clears the merits-based hurdle in s 137.1(4)(a) and the public interest hurdle in s. 137.1(4)(b).

(b) Section 137.1(3): The Threshold Requirement

[27] Section 137.1(3) sets out what was described in Pointes as a “threshold requirement”:

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.

[28] This provision requires the moving party to establish, on a balance of probabilities, that the expression “relates to a matter of public interest.” This term is to be given a broad reading and does not require that the expression actually further the public interest. It covers language that is intemperate, false, or even contrary to the public interest: Pointes, at para. 55.

(c) Section 137.1(4): The Merits-Based and Public Interest Hurdles

[29] If the defendant establishes that the expression relates to a matter of public interest, s. 137.1(4) comes into play and the onus shifts to the plaintiff. It provides:

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.

[30] First, to satisfy s. 137.1(4)(a), the “merits-based hurdle”, the plaintiff must establish, on a balance of probabilities, that the proceeding has substantial merit and that the defendant has no valid defence.

[31] Second, to surmount s. 137.1(4)(b), the “public interest hurdle”, the plaintiff must show that the harm suffered by the plaintiff as a result of the defendant’s expression “is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”

[32] I will discuss the application of s. 137.1 in more detail below.

(2) Standard of Review

[33] The standard of review for determinations under ss. 137.1(3) and 137.1(4) is deference, absent legal error or palpable and overriding factual error: see Pointes, at paras. 66, 97.

(3) Analysis

(a) Section 137.1(3): The Threshold Requirement

[34] The motion judge correctly identified Pointes as the dispositive authority. In my respectful view, however, he mischaracterized the context of the expressions at issue, defined the segment of the community too narrowly, and drew an unwarranted distinction between expressions made in the context of “private” and “public” organizations.

[35] Pointes and subsequent decisions of this court have referred to Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 for guidance in the analysis of the “public interest” requirement. The following considerations may be relevant:

• the context of the expression, having regard to the communication as a whole: Pointes, at para. 60;
• expressions that relate to private matters do not become matters relating to the public interest merely because the public is curious about them: Pointes, at para. 61;
• “[a]n expression can relate to a matter of public interest without engaging the interest of the entire community, or even a substantial part of the community. It is enough that some segment of the community would have a genuine interest in the subject matter of the expression”: Pointes, at para. 62;
• public interest does not turn on the size of the audience: Pointes, at para. 63; and
• the concept of “public interest” is a broad one that does not take into account the merits or manner of expression, nor the motive of the author. It covers language that is intemperate, false, and even contrary to the public interest: Pointes, at paras. 55, 65.

[36] In Pointes, at para. 54, Doherty J.A. suggested that the public interest can be determined by asking: “what is the expression about, or what does it pertain to?”

[37] In identifying the purpose and context of the expressions as making “disparaging, inflammatory and allegedly defamatory comments about the Plaintiff to other local union members to get those other members not to vote for the Plaintiff”, the motion judge focused on the manner of expression and the motives of the appellants. This runs contrary to the observations of Doherty J.A. in Pointes, at para. 65, that the analysis does not consider the motives of the author or the merits of the expression. The motion judge made the error that this court identified in Levant, at para. 11.

[38] The motion judge also defined the group interested in the expressions too narrowly. Specifically, he said that “[t]he expression may be of interest to the approximately 200 members of the local union, but NOT the public generally or a segment of the public.” First, as Doherty J.A. noted in Pointes, at para. 63, the public interest does not turn on the size of the audience. Second, the public interest extended well beyond those who were direct recipients of the texts and the posters. It would have included other members of CUPW, as well as the public sector more generally.

[39] Finally, even if one were to accept that a local of a major Canadian public union is a “private” organization, the distinction between expressions made in the context of “private” and “public” organizations is not found in Pointes.

[40] Had the motion judge properly addressed the question, “what is the expression about?”, he would have responded that it was about allegations of corruption and misconduct by a candidate for the office of President of the Toronto Local of the Canadian Union of Postal Workers.

[41] In my view, expressions concerning racism, sexism, corruption, abuse of union funds, and misconduct by a candidate for President of the Toronto Local of a Canadian public sector union relate to a matter of public interest. In the words of McLachlin C.J.C. in Torstar, at para. 102, “[i]t is enough that some segment of the community would have a genuine interest in receiving information on the subject”: see also Torstar, at para. 105. Members of the Toronto Local, beyond the recipients of the posters and WhatsApp messages, would clearly have a genuine interest in the expressions in the context of an election campaign. But the scope of public interest would extend even further, to the broader community served by members of CUPW and the public sector.

[42] It is of note that two of the decisions released contemporaneously with Pointes deal with expressions made in the context of elections. In Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, 143 O.R. (3d) 54, the plaintiff and one of the defendants, Nancy McSloy, were candidates for a position as city councillor in the municipal election in London, Ontario. During the campaign, Ms. McSloy made comments in a press release and on a talk radio broadcast, the gist of which were that Mr. Armstrong had used threats, intimidation, illegal acts, and bullying to get what he wanted from others. On the motion under s. 137.1, the motion judge held that the defendants had satisfied him that the subject matter of the claims related to “a matter of public interest” under s. 137.1(3). Doherty J.A. observed, “[t]hat finding is not in dispute on the appeal. Nor should it be. Statements about a candidate’s fitness for office made in the course of an ongoing election campaign undoubtedly qualify as expression relating to a matter of public interest.”

[43] In Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690, 428 D.L.R. (4th) 568, the expressions at issue were made in the course of a federal election campaign and related to the suitability of a candidate to sit as a member of Parliament, given his prior senior management position with the plaintiff corporation. In affirming the motion judge’s conclusion that the communications related to a matter of public interest, Doherty J.A. observed, at para. 19, “[n]o one disputes that communications directed at a person’s suitability to hold elected office, particularly when made in the middle of an election campaign, are communications relating to a matter of public interest.”

[44] Subsequently, in Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, 444 D.L.R. (4th) 183, this court affirmed a motion judge’s decision to dismiss an anti-SLAPP motion and to grant summary judgment in favour of the plaintiff for defamation. The defendant, a former member of the plaintiff local, had made internet posts in which he described the union as, among other things, “terrible”, “corrupt”, “despicable”, “evil”, “no good degenerate scum”, a “vicious pit of snakes” and as having a “bad reputation for corrupt and deceitful behaviour.” He described the union’s counsel and other members and officers in similar terms.

[45] Referring to Pointes, the motion judge in Castellano noted that the fact that the defendant’s posts contained derogatory, malicious, and false statements did not preclude a finding that the expressions related to a matter of public interest. Looking at the broader context of the expressions, other statements made by the defendant were concerned with the quality of representation he felt he was being provided by the union. The motion judge found this was a matter of public interest, at para. 40:

While the posts may be understood as the public airing of very personal grievances, they may also be construed as addressing the Union’s governance and the suitability of some of the plaintiffs to act as union representatives… I accept Mr. Castellano’s submission that this characterization of the expression has significance for members of Local 183 as well as the community at large. This is sufficient to ground a finding that Mr. Castellano has met his onus under s. 137.1(3).

[46] The motion judge went on to dismiss Mr. Castellano’s anti-SLAPP motion, finding that the public interest in the expressions was low and that the harm suffered by the plaintiffs outweighed the public interest in protecting the defendant’s expression. This court dismissed an appeal from that portion of the judgment.

[47] In summary, the motion judge erred in this case by focusing on the nature of the expressions and failing to consider their context, in defining the group interested in the expressions too narrowly, and in treating the “private” context as determinative. In my view, allegations of racism, sexism, corruption, and misconduct in the context of the election of the President of a major local of an important public sector union is a matter of public interest. The appellants’ motion passed the public interest threshold. This requires this court to conduct the additional analysis under s. 137.1(4).

(b) Section 137.1(4)(a): The Merits-Based Hurdle

[48] In Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60[^3], one of the companion cases to Pointes, Doherty J.A. summarized the requirements of s. 137.1(4)(a), at para. 43:

s. 137.1(4)(a) puts the onus on the plaintiff (responding party) to establish on the balance of probabilities that there are reasonable grounds to believe both that the plaintiff's claim has substantial merit and that the defendant (moving party) has no valid defence. Broadly speaking, the section provides a mechanism whereby claims that have little apparent merit and that potentially undermine freedom of expression can be screened out of the litigation process at an early stage.

[49] Applying that analysis, the question raised by s. 137.1(4)(a) becomes:

Could a reasonable trier conclude that [Mr. Nanda] had a real chance of establishing that he was libelled and could a reasonable trier conclude that [the defendants] had no valid defence to the allegation?

[50] In the court below, the appellants made no submission on the merits of the respondent’s defamation claim, but they submitted that they were entitled to the defences of justification, fair comment, absolute and/or qualified privilege, and public interest communication. In this court, their submissions on s. 137.1(4) are primarily that the motion judge erred in making obiter statements that could bind a trial judge.

[51] Only one of the appellants, Mr. Sharma, filed an affidavit on the motion. It contains nothing to support any defence to the most serious defamatory statements. It states that the respondent was “regarded by some members as a polarizing figure in the CUPW Toronto Local, with members holding the opinion that he was acting in an obstructive, intimidating manner, skirting the Rules of Order and proposing motions which could have angered the membership.” It attaches a photograph of a meeting of the Toronto Local, purporting to show that the respondent divided the membership on ethnic lines. It refers to another website containing allegations of corruption against the respondent. Nowhere do the appellants’ materials demonstrate defences to the defamatory statements concerning corruption, rigging elections, abuse of trust, and conspiracy.

[52] In my view, the respondent’s claim survives the merits-based hurdle. The defamation claim is supported by the evidence adduced by the respondent and the appellants’ pleading, and the evidence does not reveal a defence to the respondent’s serious complaints. A conclusion such as this does not “bind” the trial judge, who will consider the merits and defences on a full record.

(c) Section 137.1(4)(b): The Public Interest Hurdle

[53] I turn to the second hurdle. Section 137.1(4)(b), set out above, calls for the balancing of the public interest in permitting a proceeding to continue against the public interest in the protection of expression on matters of public interest.

[54] At this stage, the plaintiff has a burden to establish evidence of harm, which may be in the form of damage to monetary, reputational, and/or privacy interests: Pointes, at paras. 87-88. The plaintiff must demonstrate that there was a causal connection between the defendant’s expression and the harm suffered: Pointes, at paras. 90-92. The motion judge must also assess the public interest in protecting the actual expression that is the subject of the lawsuit.

[55] In Platnick, at para. 98, Doherty J.A. suggested that, while acknowledging that s. 137.1 does not apply only to litigation that meets the criteria of a SLAPP, it may be appropriate to begin the s. 137.1(4)(b) analysis by asking, “[d]oes this claim have the hallmarks of a classic SLAPP?” These may include such matters as: a history of the plaintiff 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 plaintiff bringing the claim; and minimal or nominal damages suffered by the plaintiff: Platnick, at para. 99.

[56] This is hardly a classic SLAPP. None of the indicia identified by Doherty J.A. are present. While the respondent seeks damages of only $25,000, he has adduced some evidence of an income loss related to the loss of the election for the office of President, and the damages claimed are realistic.

[57] I agree with the motion judge’s conclusion on this issue. Having regard to the expressions at issue, the merits of the respondent’s case, and giving due regard to the public interest in public debate and expression in the context of a union election, the public interest in permitting the action to proceed must prevail.

(d) The Motion Judge’s Decision was Fact Specific

[58] I reject the appellants’ submission that the motion judge erred by “determining the minimum protection threshold for protected political speech” and by holding that “attack ads” are not protected speech. The appellants focus on the motion judge’s observations, at paras. 46 and 47, where he observed, in relation to the statements at issue:

These types of Statements do not encourage debate on public matters but are allegedly defamatory statements made for the sole purpose of attacking and maligning the character of an individual without a meaningful connection with the alleged public interest or to encourage debate on matters of public interest.

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

[59] Shortly after making these statements, the motion judge quoted from this court’s decision in Levant, at paras. 22-32, citing to Pointes, at para. 94, that “deliberate falsehoods, gratuitous personal attacks or vulgar and offensive language” may reduce the public interest in protecting that speech, compared to cases where the message is delivered “without the lies, vitriol, and obscenities.”

[60] As the appellants note, the motion judge’s observations on this aspect of the issue were obiter. In my view, they are nothing more than an application of the particular facts of this case to the relevant legal test. Specifically, the motion judge was applying the guidance in Pointes that, in conducting the balancing exercise under s. 137.1(4)(b), the quality of the expressions and the motivation of the speaker are relevant to the measure of public interest in protecting the expression.

G. Disposition

[61] For the foregoing reasons, I would dismiss the appeal. There were no submissions as to costs. If no agreement is reached, the parties shall submit written submissions. The appellants shall deliver their submissions to the Registrar of the court within 30 days from the release of these reasons and the respondent shall have 15 days to respond. The submissions are limited to 10 pages, exclusive of costs outlines.

Released: “GRS” JUL 02 2020

“George R. Strathy C.J.O.”

“I agree. M. Tulloch J.A.”

“I agree. S. Coroza J.A.”

[^1]: “SLAPP” means Strategic Litigation Against Public Participation. [^2]: leave to appeal granted and appeal heard and reserved November 12, 2019, [2018] S.C.C.A. No. 467. [^3]: leave to appeal granted and appeal heard and reserved November 12, 2019, [2018] S.C.C.A. No. 466.