Dent-X Canada v. Houde, 2022 ONCA 414

COURT OF APPEAL FOR ONTARIO

DATE: 20220524 DOCKET: C69959

Benotto, Zarnett and Copeland JJ.A.

BETWEEN

Dent-X Canada Plaintiff (Respondent)

and

Marco Houde, Martin Sirois, and 9021-1962 Quebec Inc. o/a Distribution Ongles D’Or Defendants (Appellants)

Counsel: François Sauvageau, for the appellants Solomon Ross Fischhoff, for the respondent

Heard: May 10, 2022 by videoconference

On appeal from the order of Justice Mohan Sharma of the Superior Court of Justice, dated November 10, 2021.

REASONS FOR DECISION

[1] The appellants appeal from the order of the motion judge dismissing their motion to dismiss the respondent’s defamation action under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), Ontario’s “anti-SLAPP” provision. They also appeal the motion judge’s award of costs of the motion to the respondents.

[2] For the reasons set out below, we are not persuaded that the motion judge erred. We dismiss the appeal on the merits. We grant leave to appeal costs but dismiss the costs appeal.

Did the motion judge err in finding that the statement did not relate to a matter of public interest?

[3] The statement at issue was a single Facebook post created by one of the individual appellants, who was unhappy with the delay in delivery of face masks they had ordered from the respondent. Since it is short, we reproduce the full text of the post:

Dent X Canada Masks Class Action

The purpose of this group is to locate people and companies that have experienced fraud with the company Dent-X Canada.

Dent-X Canada has promised that we would be refunded if they were not able to respect the delivery dates but it’s NOT TRUE. They’ve missed all of the dates for the shipments we had agreed upon and now they don’t want to refund me.

All of my dealings with Dent-X Canada have simply been a series of BIG FAT LIES.

Like others, I suspect I have been defrauded. The guy in charge is Mr. James Peter Emms. He was convicted of fraud in the past. I don’t understand how a person like Ms. Anaida Deti, Dent-X Canada’s president, would let a convicted fraudster run her company. She has been appraised and decorated for helping her community, but she sure is not helping to stop this fraud from happening in broad daylight, in front of her very eyes. Like many, she seems to only want to profit off of Covid-19. I hope she gets as much (bad) publicity for this as she got for her other achievements.

The lucky ones who haven’t yet done business with Dent-X Canada, STOP THINKING ABOUT IT AND GO ANYWHERE ELSE. You will thank me later.

[4] The motion judge accepted that the Facebook post constituted expression by one or more of the appellants; however, he found that reading the statement as a whole, he was not satisfied that it related to a matter of public interest.

[5] In holding that he was not satisfied that the statement related to a matter of public interest, the motion judge correctly instructed himself on the analysis from 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at paras. 20, 26-31, and Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 99-109.

[6] The motion judge concluded that the nature of the statement as a whole was about a private dispute between businesses, and not related to a matter of public interest. He accepted that the quality of masks may be an issue closely connected to the public interest during a global pandemic. However, he noted that statement only mentioned the word “mask” once, at the outset. He found that there was nothing in the statement that spoke to the issue of quality of the masks, or suggested that the alleged fraud had anything to do with the quality of the masks, or that the alleged fraud put the public at risk. Rather, he found that the alleged fraud, when the post was read as a whole, related to the respondent missing delivery dates and not honouring a refund. He found that this related to a purely private dispute between businesses. He also found that the personal information in the statement about the reputation and integrity of people who worked at the respondent company was an expression that was personal in nature, and not about the quality of the products produced by the respondent.

[7] The appellants submit that the motion judge committed two errors in finding that the statement at issue did not relate to a matter of public interest. We address each alleged error in turn.

[8] First, the appellants submit that the motion judge “completely ignored” that the statement was, “in part at least, for the purpose of commencing a potential class action”. Relying on the decision of Das v. George Weston Limited, 2017 ONSC 5583, at para. 128, aff’d 2018 ONCA 1053, leave to appeal refused, [2019] S.C.C.A. No. 69, the appellants submit that class actions inherently relate to matters of public interest. We pause to note that the appellants’ counsel confirmed at the hearing that no class action was ever commenced.

[9] We reject the appellants’ argument that the motion judge failed to consider the reference to a class action at the outset of the statement. The motion judge was clearly alive to the fact that the title and first sentence of the statement at issue referred to a potential class action. He extracted the whole statement in his reasons (at para. 25). He referred to the title of the post in his reasons, when he noted that the Facebook post “only mentions the word ‘mask’ once at the outset”. That one mention of masks was in the title, which also referred to the potential class action. Further, in his costs endorsement, reported at 2021 ONSC 7433, the motion judge expressly referred to the mention in the statement of a potential class action, stating:

The underlying dispute was purely a private one. If the reason for the impugned communication was, as [the appellants] argued, to find other clients of [the respondent] for the purpose of a class action, one might expect the content and tone of its communication to be vastly different.

[10] The appellants’ submission confuses an expression referring to a matter of public interest with an expression relating to a matter of public interest. Pointes holds that the concept of whether particular expression relates to a matter of public interest must be broadly interpreted, and assessed by looking at the expression as a whole. However, Pointes also makes clear that merely referring to something of public interest is not the same as relating to a matter of public interest: Pointes at para. 29; see also Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at paras. 19, 26-35.

[11] The motion judge correctly considered the statement as a whole. He did not ignore the reference to a potential class action. Based on his analysis of the whole of the statement, he found it did not relate to a matter of public interest. We see no basis to interfere with that conclusion.

[12] The appellants’ second submission is that the motion judge erred by considering the issue of whether the statement related to a matter of public interest from the subjective perspective of the motives and manner of expression of the appellants, rather than based on the subject-matter of the statement, as is required by Pointes and Sokoloff.

[13] We disagree. The motion judge considered the statement as a whole, and correctly considered whether it related to a matter about which the public has genuine interest or concern, or affecting the welfare of citizens. He analyzed the subject-matter of the statement, and made factual findings that were based on an analysis of the whole statement. Contrary to the appellants’ assertion, he did not consider whether the statement related to a matter of public interest from the subjective perspective of the appellants’ motivations or manner of expression.

[14] In light of our finding that the motion judge did not err in finding that the expression did not pass the threshold test in s. 137.1(3) of the CJA of relating to a matter of public interest, we see no error in his conclusion that it was not necessary to proceed to the next step of the analysis under s. 137.1(4): see Pointes, at paras. 21 and 31.

Did the motion judge err in awarding costs of the motion to the respondent?

[15] The appellants also contest the motion judge’s decision to award costs of the motion to the respondents. They do not challenge the quantum of the costs award. Rather, they submit that the motion judge erred in awarding costs in light of the presumption in s. 137.1(8) of the CJA that if a motion to dismiss a proceeding under s. 137.1 is dismissed, the responding party is not entitled to costs, unless the judge determines that such an award is appropriate in the circumstances.

[16] The motion judge found that it was appropriate to award costs of the motion to the respondent because, in his view, the circumstances strongly suggested a misuse of the anti-SLAPP provision by the appellants. He reached this conclusion on the basis that the underlying dispute was a purely private business dispute, and that the manner in which the motion was pursued was disproportionate to the interests at stake in terms of the volume of material filed and time spent on cross-examinations. The motion judge had also expressed the latter concern in his decision on the merits, finding that the volume of material filed and time spent in cross-examinations was contrary to the intended purpose of the anti-SLAPP provisions of providing an early and cost-effective means of ending litigation brought by a plaintiff to silence a party who has spoken on a matter of public interest.

[17] The motion judge instructed himself correctly on the applicable law in relation to the “no costs” presumption in s. 137.1(8), based on the decision of this court in Veneruzzo v. Storey, 2018 ONCA 688, at para. 39. We see no basis to interfere with his discretionary finding that awarding costs to the respondent was appropriate in the circumstances.

[18] We dismiss the appeal on the merits. Leave to appeal costs is granted, but the costs appeal is dismissed. The appellants shall pay costs of the appeal to the respondent in the amount of $18,000, all inclusive.

“M.L. Benotto J.A.”

“B. Zarnett J.A.”

“J. Copeland J.A.”