COURT OF APPEAL FOR ONTARIO
DATE: 20230803
DOCKET: C70468 & C70482
Simmons, Huscroft and Coroza JJ.A.
DOCKET: C70468
BETWEEN
Probhash Mondal and 2345171 Ontario Inc., operating as Guelph Medical Imaging
Plaintiffs (Appellants)
and
Ross Kirkconnell and Michelle Smith
Defendants (Respondents)
DOCKET: C70482
AND BETWEEN
Probhash Mondal and 2345171 Ontario Inc., operating as Guelph Medical Imaging
Plaintiffs (Appellants)
and
Stephanie Marie Evans-Bitten and Kathryn Evans-Bitten
Defendants (Respondents)
Counsel: Nancy J. Tourgis, for the appellants in C70468 Kevin Sherkin and Matthew Walwyn, for the appellants in C70482 Natalie D. Kolos and Lauren Malatesta, for the respondents Ross Kirkconnell and Michelle Smith Marcus McCann, for the respondents Stephanie Marie Evans-Bitten and Kathryn Evans-Bitten
Heard: November 29, 2022
On appeal from the orders of Justice Edward M. Morgan of the Superior Court of Justice, dated March 1, 2022, with reasons reported at 2022 ONSC 809.
Huscroft J.A.:
OVERVIEW
[1] Section 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, establishes an ostensibly straightforward procedural motion designed to weed out strategic and abusive proceedings – “Gag Proceedings” – at an early stage in order to better protect freedom of expression on matters of public interest. The motion has proven to be a popular tool and a considerable body of caselaw has developed. But the law remains difficult to apply; fine judgments must be made on the basis of relatively undeveloped proceedings.
[2] These appeals demonstrate some of the difficulties in applying the law. They concern defamation actions arising out of a series of “tweets” and an email message from the respondents that involve name-calling between strangers and suggestions of discrimination. The focus of the defamation action against the first defendant, the respondent Stephanie Marie Evans-Bitten (“Evans-Bitten”), was a June 11, 2021 “tweet” – a brief message posted on the Twitter platform – but her tweeting history involving the appellant goes back to 2019. The appellant tweeted a picture in which he posed with Ontario Premier Doug Ford and Minister of Education Stephen Lecce. Evans-Bitten tweeted in response, criticizing Premier Ford and Minister Lecce as “known homophobic conservative politicians”, adding: “If you support them, you are for homophobia.”
[3] A series of tweets between the parties followed, culminating in Evans-Bitten’s June 11, 2021 tweet referring to the appellant, in which she “[reminded] #Guelph leaders that gay residents in this city are being forced to seek healthcare diagnostics in other cities, because Guelph Medical Imaging is owned and lead [ sic ] by a man who thinks and tweets this stuff”. Evans-Bitten attached screenshots of two tweets in addition to the tweet with the picture of Premier Ford and Minister Lecce. The two additional tweets, which Evans-Bitten considered to be highly disrespectful to the LGBTQ community, had been posted by the appellant in 2019 and deleted some 18 months earlier. Evans-Bitten tweeted further on June 11, 2021 that: “My wife and I have to seek medical imaging diagnostics outside of #Guelph because the current healthcare provider here is a homophobic and transphobic bully”. In response, the appellant tweeted that Evans-Bitten’s tweets were unacceptable, malicious, and outrageous, and strongly denied that his clinic discriminated against gay people.
[4] The focus of the defamation action against the second set of defendants, the respondents Ross Kirkconnell (“Kirkconnell”) and Michelle Smith (“Smith”), was an email message they sent to the members of the Guelph Family Health Team, whose physician members refer patients to the appellant’s clinic. The message attached a screenshot of Evans-Bitten’s first June 11, 2021 tweet with the screenshots of the appellant’s prior tweets. The email message stated that the Guelph Family Health Team was “committed to anti-oppression/anti-racism and inclusion in all elements of the work we do … we are sharing [the screenshots] with you for your information.”
[5] Both actions were dismissed following motions brought by the respondents under s. 137.1 of the Courts of Justice Act, [1] which were heard together on consent.
[6] The motion judge found that the respondents’ communications were expression on a matter of public interest. He was therefore required to dismiss the defamation actions unless the appellant met the merits-based and public interest hurdles established by s. 137.1(4)(a) and (b).
[7] The motion judge found there were grounds to believe the communications were defamatory and that the appellant could establish that he has suffered economic harm as a result. However, the motion judge also found that there was “every reason to believe” that the respondents’ communications were protected as fair comment. Thus, the appellant failed at the merits-based hurdle of s. 137.1(4)(a)(ii). This was a sufficient basis to grant the respondents’ motions to dismiss the proceedings and the motion judge did not go on to consider the public interest hurdle under s. 137.1(4)(b) – specifically, whether the public interest in permitting the appellant’s defamation actions to continue outweighed the public interest in protecting the respondents’ expression.
[8] The appellant appeals from the orders dismissing both actions and the appeals were consolidated.
[9] As I will explain, the motion judge erred in concluding that the respondent Evans-Bitten’s expression was protected as fair comment. The motion judge was not required to make a definitive finding in this regard – only whether the appellant had established there were grounds to believe that Evans-Bitten’s fair comment defence would not succeed, and he did so. Thus, the appeal against the order dismissing the appellant’s action against Evans-Bitten depends on the application of the public interest weighing exercise under s. 137.1(4)(b) that the motion judge did not undertake. Having completed that exercise, I conclude that the appellant has established that his defamation action against the respondent Evans-Bitten should be permitted to proceed.
[10] However, the appellant has failed to establish grounds to believe the respondents Kirkconnell and Smith’s fair comment defence would not succeed, and so fails to overcome the merits-based hurdle in his action against them. The appellant’s defamation action against them must be dismissed.
[11] For the reasons that follow, I would allow the appeal in the Evans-Bitten matter (C70482) and dismiss the appeal in the Kirkconnell and Smith matter (C70468).
BACKGROUND
(a) The parties
[12] The appellant, Probhash Mondal, is the managing director of the Guelph Medical Imaging clinic, which performs medical imaging and diagnostic services. [2] He has Twitter accounts for his clinic as well as an organization called the “United Brotherhood of Medical Imaging Clinics of Ontario”.
[13] The respondent Stephanie Marie Evans-Bitten is a member of the LGBTQ community in Guelph, where she lives with her wife, Kathryn Evans-Bitten. [3] She is a regular Twitter user and has tweeted under two different usernames.
[14] At the relevant times, the Twitter accounts belonging to the appellant and Evans-Bitten, and the tweets posted on those accounts, were publicly accessible.
[15] The respondents Ross Kirkconnell and Michelle Smith are executive director and executive assistant, respectively, at the Guelph Family Health Team, a group of over 90 medical professionals in the Guelph area. They maintain email contact with their constituency.
(b) Evans-Bitten’s June 11, 2021 tweet
[16] The motion judge focused on a tweet posted by Evans-Bitten on June 11, 2021, but that tweet was the culmination of a more extensive tweeting history that is discussed below.
[17] Evans-Bitten’s June 11, 2021 tweet stated as follows:
This #PrideMonth2021, I want to remind #Guelph leaders that gay residents in this city are being forced to seek healthcare diagnostics in other cities, because Guelph Medical Imaging is owned and lead [ sic ] by a man who thinks and tweets this stuff:
Attached to the tweet were screenshots of three tweets that had been previously posted by the appellant:
June 23, 2019 (deleted in the fall of 2019):
This is just how @JohnTory cares about his city. Why are we surprised
Wonder what he’s doing this weekend!
Where’s the tranny, @JohnTory’s got some benjamins for your thong!!!
The tweet included a picture of a man the appellant says is then-Mayor John Tory apparently putting money into the thong of a drag performer.
June 24, 2019 (deleted in the fall of 2019):
Is it possible our Prime Minister suffers from Vexiphobia? That which he waves is NOT our national flag.
Please do not defile our flag.
The tweet included a picture of Prime Minister Justin Trudeau waving a Canadian flag that was in Pride rainbow colours. The appellant says that he did not know that “tranny” was an offensive term and deleted the tweets relating to Mayor Tory and Prime Minister Trudeau from his Twitter account in the fall of 2019 when he recognized they were not appropriate.
September 25, 2019:
A pleasure to see @fordnation and @sfleece.
Their dedication to making Ontario a leader in healthcare and education is inspiring.
Premier Ford’s commitment to Long Term Care facilities will be key to freeing up room in our crowded hospitals.
The tweet included a picture of the appellant posing with Premier Doug Ford and Minister of Education Stephen Lecce.
[18] Evans-Bitten followed up on her tweet with an added statement: “My wife and I have to seek medical imaging diagnostics outside of #Guelph because the current healthcare provider here is a homophobic and transphobic bully”.
[19] Evans-Bitten’s June 11, 2021 tweet followed a series of tweets in May 2021 in which she stated, among other things, that the appellant is a “homophobic bully + right-wing public health basher” and described the appellant’s clinic as “right-wing, homophobic and public health bashing”.
(c) The Guelph Family Health Team email
[20] The second defamation action arises out of an email message sent by the respondents Kirkconnell and Smith. The email attached a screenshot of Evans-Bitten’s first June 11, 2021 tweet and was sent to their constituency of physicians, many of whom refer patients to the appellant’s business. In the text of their email message, the respondents stated as follows:
To Guelph FHT Board, Family Physicians and Guelph FHT Staff
Guelph Family Health Team is committed to anti-oppression/anti-racism and inclusion in all elements of the work we do. This is an important commitment that asks all of us to be aware, understand and seek to be better.
Today, a community partner sent us the screenshot images below, from the Twitter feed associated with the owner of Guelph Medical Imaging and we are sharing them with you for your information.
(d) Defamation actions
[21] The appellant commenced two actions in defamation – one against Evans-Bitten and the other against Kirkconnell and Smith. The appellant was represented by separate counsel in each action. Both sets of respondents brought motions under s. 137.1 of the Courts of Justice Act seeking to have the appellant’s actions dismissed. The parties consented to the motions being heard together.
THE MOTION JUDGE’S DECISION
[22] The motion judge began his decision by posing a rhetorical question: “[Can] one who freely wades into the choppy waters of Twitter complain about getting splashed”? He made the following findings, focused on Evans-Bitten’s June 11, 2021 tweet.
(a) The expression related to a matter of public interest
[23] The appellant’s tweets were aimed specifically at commenting on matters of public interest, as they were “expressly political” and “referenced both the Prime Minister of Canada and the Mayor of Toronto by name in criticizing their actions.” Commentary added to the “re-tweets” by the respondents “was itself designed as a form of public service announcement”. Evans-Bitten’s message was a warning to the LGBTQ community that “they may encounter adversity if they use [the appellant’s] medical services” and “an allegation of homophobia causing a practical denial of local healthcare services”, and was certainly a matter of public interest. The email message from Kirkconnell and Smith was written “as an express dissociation from [the appellant’s] message and a reinforcement of the public policies to which Guelph Family Health strives to adhere”.
(b) There were grounds to believe that the defamation actions have substantial merit
[24] The words in question, as repeated and highlighted by the respondents, were those of the appellant and certainly referred to him. They were communicated to Evans-Bitten’s Twitter followers and the members of Kirkconnell and Smith’s email list. The motion judge stated:
[R]e-tweeting and forwarding [the appellant’s] rude and pejorative tweets, with an accompanying sentence that draws further attention to their rudeness and distasteful message, cannot help but lower the professional and personal reputation among [the appellant]’s peers and clientele ... Highlighting the tweets in issue exposes him as not only using entirely crass and unprofessional language, but as harbouring a derogatory attitude toward LGBTQ individuals.
The appellant’s tweets were “lowbrow communications” that “certainly would have lowered [his] reputation among reasonable people in his professional and business network”. There was a recognizable allegation of defamation and the appellant was “likely to establish that he has suffered economic harm”, given that the impugned communications were likely to be read by his customer base of doctors and patients, and there was already some evidence that this had occurred.
(c) There was every reason to believe that the respondents’ communications were fair comment
[25] Evans-Bitten’s pattern of tweeting was “immoderate”, according to the motion judge, in that she denounced people including the appellant for banalities such as appearing in photographs with conservative politicians. But the motion judge stated that this shows only that “[the appellant] has delved into a very harsh medium by expressing his views on Twitter – a medium where outlandish criticism is the norm.” Twitter broadly disseminates and greatly amplifies everything written on the platform. It is a rhetorical environment – a “schoolyard-like atmosphere” in which “hyperbolic argumentation should not be construed as a threat or a rarified form of verbal assault”.
[26] The motion judge stated that Twitter is not a medium for serious political debate, but its lack of seriousness militates in the respondents’ favour: Twitter is, he said, a “rhetorically harsh speech environment whose very pervasive harshness reduces the seriousness with which it is taken.” Nothing said by the respondents, viewed in context, “is harsher than, or is an overreaction to, the language of [the appellant]’s tweets themselves.” Citing Bernier v. Kinsella et al., 2021 ONSC 7451, 73 C.P.C. (8th) 280, at para. 66, the motion judge stated that “a stark difference in political views does not make commentary malicious or undermine the fact that the commentary is fair comment.” The motion judge concluded:
[The appellant] jumped into the turbulent river of Twitter commentary with some vulgarly worded observations that touched a nerve with the [respondents]. He got it back as good as he gave it, and got wet in the process. In the context of Twitter, there is every reason to believe that what [the respondents] doled back to him was fair comment.
[27] Given these findings at the merits-based hurdle under s. 137.1(4)(a), the motion judge did not go on to consider the public interest hurdle under s. 137.1(4)(b). He granted both motions and dismissed the appellant’s actions.
DISCUSSION
(a) The purpose of s. 137.1
[28] Although motions brought under s. 137.1 are by now commonplace, it is important not to lose sight of the fundamental purposes of the provision, as set out in subsection (1):
(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.
[29] In short, s. 137.1 is designed to allow defendants to have strategic or abusive actions – typically defamation proceedings – dismissed at an early stage in order to protect the public interest in freedom of expression. As the Supreme Court noted in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at paras. 38, 50-51, motions under s. 137.1 are situated between motions to strike, which are decided solely on the pleadings, and summary judgment motions, which involve a more extensive record and ultimate adjudication of the issues. Section 137.1 motions are resolved on the basis of limited evidence and corresponding procedural limitations.
[30] The preliminary nature of s. 137.1 motions is apparent in the burdens imposed on the plaintiff (responding party to the motion). At the merits-based hurdle under s. 137.1(4)(a), the plaintiff need establish only grounds to believe – “a basis in the record and the law” – for finding that the proceeding has substantial merit or that the defendant has no valid defence to the underlying proceeding: Pointes, at para. 39. At the public interest hurdle under s. 137.1(4)(b), the plaintiff need not prove harm or causation; the court is tasked at this stage with drawing inferences of likelihood in respect of the existence of harm, its magnitude, and the relevant causal link: at paras. 70-71. Thus, a s. 137.1 motion is not an occasion for a “deep dive” into the evidence; only a limited assessment of the evidence is appropriate: at para. 52.
[31] Section 137.1 is not intended to discourage or preclude legitimate defamation actions. But the paradigm SLAPP case – a meritless action brought by a powerful, well-heeled plaintiff in an attempt to tie up a critic in legal proceedings, cause them economic harm, and ultimately silence them and anyone else that might otherwise be tempted to criticize that plaintiff – is as easy to recognize as it is rare.
[32] Where an action has some merit, the decision whether it should be permitted to proceed depends on a weighing process that seldom admits of obvious answers.
(b) The expression at issue
(i) History of tweets between the parties
[33] This case demonstrates the problem. It does not involve politicians or public officials, nor does it involve a sophisticated discussion of politics or public policy. It is a case that exemplifies the sort of intemperate behaviour between strangers often seen on social media. The flavour of the exchanges between the appellant and Evans-Bitten can be seen in tweets that came prior to the June 11, 2021 tweet at the centre of this s. 137.1 motion.
[34] Based on the record before the court, the exchanges began in 2019 with Evans-Bitten’s decision to tweet in response to a tweet posted by the appellant, which included a picture of him posing with Premier Doug Ford and Minister of Education Stephen Lecce. In the ensuing thread of tweets, Evans-Bitten tweeted:
[You] openly pose with known homophobic conservative politicians..your page (and that of your "Brotherhood" org) only shows support of these right-wing politicians...their policies affect me and my family. If you support them, you are for homophobia.
In a subsequent tweet, the appellant stated:
We are not Private healthcare. We are publicly funded. No different than any hospital in Ontario.
We welcome any political leader to join us. However most are too busy to care.
Evans-Bitten replied:
Publically [ sic ] funded healthcare that supports health cuts and privatization?... the leaders you pose with are also known homophobes..you ok with that? nothing about your political posts on social media make me feel welcome at your clinics. #Guelph
The appellant:
Are all @liberal_party supporters this brain-washed?
There is NO linear relationship that exists between homophobia and @CPC_HQ
Liberal brainwashing at its best right here!!
[35] In response to Evans-Bitten tweeting under a different username, the appellant queried whether she had “multiple personality disorder” and urged her to “keep [her] personality straight”. She responded by accusing him of cyber-bullying, and later tweeted:
Shame the CEO is anti #lgbtq and bullies patients who don't vote conservative...perhaps #Guelph needs to look elsewhere for non-discriminatory imaging healthcare!
[36] In subsequent tweets, Evans-Bitten described the appellant as a “homophobic bully + right-wing public health basher” and said that she would feel unsafe at his clinic. She also criticized him for his views on COVID-19 and for posting “anti-vax propaganda”, and the appellant alleges she falsely suggested that improper conduct of health professionals regularly occurs at his clinic, that she was subject to online harassment from him, and that the alleged harassment was a police matter.
(ii) The June 11, 2021 tweet
[37] On June 11, 2021, Evans-Bitten posted three screenshots of the appellant’s tweets, two of which (the John Tory and Justin Trudeau tweets) the appellant had deleted in 2019, along with the commentary: “This #PrideMonth2021, I want to remind #Guelph leaders that gay residents in this city are being forced to seek healthcare diagnostics in other cities, because Guelph Medical Imaging is owned and lead [ sic ] by a man who thinks and tweets this stuff”.
[38] This tweet suggested, similar to her earlier tweets, that the appellant’s medical imaging clinic would discriminate against members of the LGBTQ community. Kirkconnell and Smith became aware of this tweet and, on June 14, 2021, sent an email message to the Guelph Family Health Team that appended a screenshot of it. The email message reminded members of the organization’s commitment to diversity and inclusion.
[39] The appellant tweeted several times in response to Evans-Bitten’s June 11, 2021 tweet, stating that his clinic “has always been an all inclusive community healthcare provider”, including with respect to the LGBTQ community, and describing Evans-Bitten’s tweets as “completely unacceptable and malicious”. He added: “to suggest in some way their [ sic ] is some prejudice or saying that gay residents can’t have imaging done is a blatant lie … beyond slanderous and the inference outrageous”.
(c) The expression related to a matter of public interest (s. 137.1(3))
[40] The quality of the expression in these communications is not relevant to the threshold question – whether that expression related to a matter of public interest: Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at paras. 24-25. The parties agree that it did and accordingly s. 137.1 was in play. But expression is not immunized from defamation proceedings simply because it relates to matters of public interest. The protection afforded by s. 137.1 is narrower: it establishes a procedure to dismiss proceedings that can be identified as strategic or abusive at an early stage in order to protect freedom of expression. Section 137.1 does not affect the substantive law of defamation, which applies to communications on social media platforms such as Twitter just as it does to communications on more traditional media – newspapers, radio, and television. Social media is not a defamation-free zone.
[41] I emphasize this point because the motion judge’s comments appear to suggest otherwise. Indeed, the motion judge seems to have discounted the appellant’s interests because he chose to communicate on Twitter. This is evident at several points in the decision, beginning with the rhetorical question he posed at the outset: “[C]an one who freely wades into the choppy waters of Twitter complain about getting splashed”? Later in his reasons, the motion judge observes that the appellant “has delved into a very harsh medium by expressing his views on Twitter – a medium where outlandish criticism is the norm.” The motion judge discusses the nature of Twitter, describing it as “a rhetorical environment”, a “schoolyard-like atmosphere”, and “a rhetorically harsh speech environment whose very pervasive harshness reduces the seriousness with which it is taken”. He concludes by answering the rhetorical question he posed earlier: the appellant “jumped into the turbulent river of Twitter commentary with some vulgarly worded observations … He got it back as good as he gave it, and got wet in the process.”
[42] These remarks read almost as an assertion of volenti non fit injuria – as though those who choose to communicate on Twitter know what they are getting into and so cannot complain about the way in which they are treated. In effect, they consent to the risk of being defamed.
[43] This is not so. The question is not whether the appellant consented to a risk of being defamed by communicating on Twitter or any other medium but, instead, whether the appellant can establish that he should be permitted to continue his defamation actions. The answer to that question does not depend on social media standards of behaviour. It depends on whether the appellant can satisfy the merits-based and public interest hurdles set out in s. 137.1 in the specific circumstances of this case.
(d) The merits-based hurdle (s. 137.1(4)(a))
[44] As the Supreme Court made clear in Pointes, at paras. 46, 59, the “substantial merit” and “no valid defence” requirements are parts of an overall assessment of the prospect of success of the underlying claim. The bar cannot be set too high at the merits-based hurdle, otherwise the weighing stage will never be reached. This, the Supreme Court emphasized, “ cannot possibly be what the legislature contemplated given the legislative history and intent behind s. 137.1 ”: at para. 63. Proportionality is the “paramount consideration” in determining whether an action should be dismissed.
[45] The motion judge concluded that the appellant failed at the merits-based hurdle because the respondents’ expression was protected as fair comment. In doing so, he set the bar too high, as I will explain.
(i) There are grounds to believe that the expression at issue was defamatory
[46] The motion judge focused on Evans-Bitten’s June 11, 2021 tweet and found that the screenshots of the appellant’s tweets (pictures of those tweets that were erroneously referred to as “re-tweets”) along with the respondents’ commentary, sent by Twitter and email, “cannot help but lower the professional and personal reputation among [the appellant’s] peers and clientele.” These communications “certainly would have lowered [the appellant]’s reputation among reasonable people in his professional and business network.” The motion judge states simply that there was a “recognizable allegation of defamation” against the respondents.
[47] This finding is not challenged on appeal. It is accepted that there are grounds to believe that the respondents’ communications were defamatory, albeit that the defamatory sting is not specified. The focus of the argument on the motion and on appeal was on the respondents’ fair comment defences. [4] That said, it is important to note that the appellant’s claim was much broader than simply Evans-Bitten’s June 11, 2021 tweet. His statement of claim referred specifically to comments he alleges she made in earlier tweets, in which she described the appellant as a “racist homophobic bully” and “right wing public health basher”, said that he posted “anti-vax propaganda”, alleged improper conduct of health professionals at his clinic, and falsely claimed he had harassed her and that it was a police matter. The June 11, 2021 tweet was significant in that it was the only tweet that was linked to Kirkconnell and Smith.
(ii) The nature of fair comment
[48] “Fair comment” is a defence to a defamation claim that is available if the words complained of are expressions of opinion rather than fact. The test for fair comment was articulated by the Supreme Court in WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 28. The four-part test is as follows:
- The comment must be on a matter of public interest;
- The comment must be based on fact;
- The comment can include inferences of fact, but must be recognizable as comment; and
- The comment must satisfy the objective test: could any person honestly express the opinion on the proved facts?
[49] However, even if these four criteria are satisfied, the fair comment defence is defeated if the plaintiff proves that the defendant was subjectively actuated by express malice. Thus, malice is often listed as the fifth part of the fair comment test: WIC Radio, at para. 28; Blair v. Ford, 2021 ONCA 841, 159 O.R. (3d) 415, at para. 45, leave to appeal refused, [2022] S.C.C.A. No. 15.
(iii) The appellant’s burden on the s. 137.1 motion
[50] As noted above, the bar cannot be set too high at the merits-based hurdle. The plaintiff is not required to establish that the defendant has no valid defence to an action. Section 137.1 requires only that the plaintiff establish that there are grounds to believe that the defendant has no valid defence. This is consistent with the early stage of proceedings in which the motion is brought.
[51] I emphasize the “grounds to believe” modifier lest the burden on the plaintiff be overstated. All that is required to satisfy s. 137.1(4)(a)(ii) is a determination that there is a basis in the record and the law for concluding that the defences asserted will not succeed: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 103; Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, 455 D.L.R. (4th) 525, at paras. 66-68, leave to appeal refused, [2021] S.C.C.A. No. 87. In this case, the appellant was required to establish grounds to believe that the respondents’ pleaded defence – fair comment – could not succeed. He could do so either by establishing grounds to believe that they could not establish fair comment, or grounds to believe that a fair comment defence otherwise available to them would be defeated by malice: see e.g., Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, 460 D.L.R. (4th) 245, at paras. 31-34.
[52] I address the fair comment defences of each of the respondents separately.
(iv) There are grounds to believe that the respondent Evans-Bitten has no valid defence
[53] The appellant argues that the motion judge failed to consider whether Evans-Bitten’s expression was motivated by malice, and as a result failed to determine whether there were grounds to believe that she had no valid fair comment defence. [5] Evans-Bitten argues that the motion judge addressed and rejected malice in his reasons.
[54] Malice includes spite or ill-will but may also be established by showing that a comment was made with an indirect motive or ulterior purpose, dishonestly, or in knowing or reckless disregard for the truth: Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Incorporated, 2018 ONCA 383, 424 D.L.R. (4th) 514, at para. 33; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 145.
[55] The motion judge said no more than this concerning malice: “As this court stated in Bernier, at para. 66, a stark difference in political views does not make commentary malicious or undermine the fact that the commentary is fair comment.” He did not explain why the appellant had not established grounds to believe that the respondents’ fair comment defences could not succeed. Instead, as I noted earlier, the motion judge emphasized the rough and tumble nature of Twitter discourse, in essence suggesting that the appellant brought the problem on himself. “[T]here is every reason to believe”, he said, that the respondents’ expression – what they “doled back to him” – was fair comment. Evans-Bitten argues that this is, in essence, an equivalent finding, albeit that it is not stated in the double negative format set out in s. 137.1.
[56] This argument must be rejected. The appellant was required to establish only, on a standard less than the balance of probabilities, grounds to believe the respondents had no valid defence. In other words, “a basis in the record and the law – taking into account the stage of litigation at which a s. 137.1 motion is brought – for finding that … there is no valid defence”: Pointes, at paras. 39-40. He was not required to establish that the respondents’ fair comment defence would inevitably fail. As this court put the matter in Lascaris v. B’nai Brith Canada, 2019 ONCA 163, 144 O.R. (3d) 211, at para. 33, leave to appeal refused, [2019] S.C.C.A. No. 147:
The burden on the appellant under s. 137.1(4)(a)(ii) is not to show that a given defence has no hope of success. To approach s. 137.1(4)(a)(ii) in that fashion risks turning a motion under s. 137.1 into a summary judgment motion.
[57] Applying the proper test, there are grounds to believe the respondent Evans-Bitten’s fair comment defence would not succeed. Her decision to tweet screenshots of tweets the appellant had long since removed supports the argument that her actions were motivated by spite or ill-will. So too does her prior tweeting history, which contains extensive personal invective and accusations against the appellant. The appellant often responded in kind. But a fair comment defence can be defeated by malice if a defendant acts “out of revenge in order to obtain satisfaction for some personal resentment or grudge”: Zoutman v. Graham, 2019 ONSC 2834, at para. 101, aff’d 2020 ONCA 767. Evans-Bitten’s actions may have been motivated by her desire to send a public interest message, and the appellant may not ultimately succeed at trial in establishing malice: see Canadian Union of Postal Workers, at para. 34. However, it is enough for the appellant to clear the merits-based hurdle by establishing that there are grounds to believe that Evans-Bitten’s fair comment defence will not succeed, and in my view he has done so.
[58] The significance of this conclusion should not be overstated. The merits-based hurdle is considered at an early stage in the proceedings and the burden on the plaintiff is not a high one. Clearing that hurdle means only that Evans-Bitten’s s. 137.1 motion fell to be determined at the public interest hurdle, which is addressed below.
(v) There are no grounds to believe that the respondents Kirkconnell and Smith have no valid defence
[59] I reach a different conclusion concerning the fair comment defence of the respondents Kirkconnell and Smith.
[60] The motion judge’s decision focuses on Evans-Bitten’s tweets and says little about the Kirkconnell and Smith email. It is therefore necessary for this court to conduct the analysis. I set out the contents of the impugned email again for convenience:
To Guelph FHT Board, Family Physicians and Guelph FHT Staff
Guelph Family Health Team is committed to anti-oppression/ anti-racism and inclusion in all elements of the work we do. This is an important commitment that asks all of us to be aware, understand and seek to be better.
Today, a community partner sent us the screenshot images below, from the Twitter feed associated with the owner of Guelph Medical Imaging and we are sharing them with you for your information.
The email appends Evans-Bitten’s June 11, 2021 tweet that included screenshots of the appellant’s deleted tweets.
[61] It is well established that comment includes a “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof”: WIC Radio, at para. 26, quoting Ross v. New Brunswick Teachers’ Assn., 2001 NBCA 62, 201 D.L.R. (4th) 75, at para. 56. The defence of fair comment depends on whether any person could honestly make the comment on the proved facts, and the relevant facts in this matter do not appear to be in dispute. The appellant does not deny that he sent the deleted tweets. Evans-Bitten’s June 11, 2021 tweet suggests that members of the LGBTQ community in Guelph should look elsewhere for medical imaging services. It is reasonable to think that it gives rise to a concern about discrimination against the LGBTQ community and that the respondents Kirkconnell and Smith could honestly express that concern given the Guelph Family Health Team’s political commitments. All that matters is whether the respondents actually held the view they expressed in their comment. There is no requirement that a comment be considered “fair” in some objective sense: see WIC Radio, at para. 28.
[62] The appellant argues that Kirkconnell and Smith acted recklessly in drafting and sending the email and, as a result, there are grounds to believe they could not rely on the fair comment defence. The respondents contend that the appellant put forward no evidence of malice and say that malice cannot be inferred from the way in which their email was drafted and sent.
[63] The appellant does not allege spite or ill-will, indirect motive, ulterior purpose, or dishonesty. He argues that malice arises from the respondents’ reckless actions in sending the impugned email. The argument for recklessness must be understood having regard to the context in which the comments were made: WIC Radio, at para. 56. It may be that in some contexts, a failure to inquire into the truth of a matter may give rise to a finding of recklessness, and hence malice, but it does not in this case. The respondents were not required to know the truth of the facts – i.e., that the tweets appended to their email were sent by the appellant – when their email message was sent. It is enough that they had an honest belief in the factual foundation for the email. So long as the impugned opinion was based on evidence that existed at the time, the facts supporting a belief may be proven at trial: Peter A. Downard, The Law of Libel in Canada, 5th ed. (Toronto: LexisNexis, 2022), at 11.02.
[64] Kirkconnell and Smith’s email does not attest to the factual accuracy of the appellant’s deleted tweets featured as screenshots in Evans-Bitten’s June 11, 2021 tweet; it simply draws them to the attention of those who received the email, leaving it to them to decide how to proceed. In all of these circumstances, the appellant has not succeeded in establishing grounds to believe that Kirkconnell and Smith’s fair comment defence would not succeed because of recklessness.
[65] Accordingly, the appeal from the order dismissing the appellant’s action against the respondents Kirkconnell and Smith is dismissed.
(e) The public interest hurdle (s. 137.1(4)(b)) regarding the respondent Evans-Bitten
[66] The motion judge concluded his analysis following consideration of the merits-based hurdle and did not address the public interest hurdle – the weighing stage of the analysis. Evans-Bitten submits this matter should be remitted to the motion judge to consider the public interest hurdle.
[67] This is an example of the sort of problem that can arise when a motion judge does not make alternative findings. Although a majority of the Supreme Court stated in Hansman v. Neufeld, 2023 SCC 14, 481 D.L.R. (4th) 218, at para. 53 (released after these appeals were argued), that the order in which a judge chooses to address the merits-based and public interest hurdles is a matter of discretion, it will often be advisable to consider the merits-based hurdle first, so as to better inform the weighing analysis at the public interest stage. But if this approach is taken, the possibility that an error might be made suggests that the prudent course is to make alternative findings on the public interest hurdle, otherwise it may be necessary to remit a matter for further proceedings under s. 137.1 following a successful appeal. In this case, however, I am satisfied that this court has sufficient evidence and argument to conduct the weighing that is required and will proceed to do so.
(i) The nature of weighing
[68] The burden is on the plaintiff to establish under s. 137.1(4)(b) that the public interest in permitting a proceeding to continue outweighs the public interest in protecting the defendant’s expression. In Pointes, at para. 66, the Supreme Court sought to distinguish weighing from balancing, with Côté J. noting that in order for one thing to outweigh another, the ratio between them must be at least 51/49, whereas balancing would permit a lower ratio.
[69] This distinction suggests an empirical precision that is not possible where evaluations of the public interest are concerned. The problem is incommensurability: it is impossible to measure the public interest, and all that it entails in different contexts, on an objective basis. Specifically, in the context of s. 137.1(4)(b), there are no metrics for measuring the public interest in either permitting a proceeding to continue or in protecting particular expression, and this entails incommensurability between competing interests: see Timothy Endicott, “Proportionality and Incommensurability” in Grant Huscroft, Bradley W. Miller & Grégoire Webber, eds., Proportionality and the Rule of Law: Rights, Justification, Reasoning (New York: Cambridge University Press, 2014) 311.
[70] Incommensurability is by no means a problem unique to s. 137.1; it can inhere in any weighing exercise. Thus, to speak of weighing is to speak in terms of metaphor rather than accurately describe the evaluative process being used. We can choose to value one thing more than another, but there is often no common attribute that provides an objective basis for concluding that one has greater value than the other.
[71] Of course, there will be cases in which the outcome of the weighing exercise seems clear. The Anti-SLAPP Advisory Panel, whose report gave rise to s. 137.1, had this sort of case in mind when it made this point at para. 37 of its report:
If an action against expression on a matter of public interest is based on a technically valid cause of action but seeks a remedy for only insignificant harm to reputation, business or personal interests, the action’s negative impact on freedom of expression may be clearly disproportionate to any valid purpose the litigation might serve. The value of public participation would make any remedy granted to the plaintiff an unwarranted incursion into the domain of protected expression. In such circumstances, the action may also be properly regarded as seeking an inappropriate expenditure of the public resources of the court system. Where these considerations clearly apply, the court should have the power to dismiss the action on this basis.
[72] It seems uncontroversial to say that an interest that has little or no weight – a “technically valid” cause of action that causes “insignificant harm” – is outweighed by an interest in freedom of expression that is presumed to be very important. That is so because the price to be paid for protecting expression in these circumstances is minimal. In most cases, however, the weighing judgments that must be made under s. 137.1(4)(b) are more difficult and contentious, involving arguable claims of defamation with potentially significant, if undetermined, damages and contestable claims about the importance of the impugned expression. That is so in this case.
(ii) The public interest in permitting the appellant’s action to proceed
[73] The public interest in permitting the appellant’s action to proceed is to be determined having regard to the harm likely to have been suffered as a result of Evans-Bitten’s expression. What is that harm and how was it caused?
[74] Guidance is provided in Pointes, at para. 71, where Justice Côté emphasized that harm and causation are determined at an early stage in the proceedings and cannot be judged on an exacting standard:
I would not go so far as to require a fully developed damages brief, nor would I require that the harm be monetized, as the question here relates to the existence of harm, not its quantification. The statutory language employed in s. 137.1(4)(b) is “harm likely to”, which modifies both “be” and “have been”; this indicates that the plaintiff need not prove harm or causation, but must simply provide evidence for the motion judge to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link. [Emphasis in original.]
[75] In short, all that is required is evidence permitting an inference of likelihood in respect of harm and causation. So, what is the evidence in this case?
[76] The starting point is general damages, which are presumed to follow from defamatory expression. The presumption of such damages does not establish their magnitude: Hansman, at para. 67. But reputational harm is a relevant consideration in determining whether, along with monetary damages pleaded, the harm is sufficiently serious. In Bent, at para. 148, the Supreme Court emphasized the importance of professional reputation, even when it is not quantifiable at an early stage in the proceedings, noting that harm to position and standing in a professional community may have the effect of exacerbating the harm suffered.
[77] The motion judge noted that the appellant operates a medical diagnostic service and deals with medical professionals and their patients, and stated:
Highlighting the tweets in issue exposes him as not only using entirely crass and unprofessional language, but as harbouring a derogatory attitude toward LGBTQ individuals … [which] would have lowered [the appellant]’s reputation among reasonable people in his professional and business network.
Evans-Bitten’s June 11, 2021 tweet was sent by email to over 90 family physicians and health professionals serving 120,000 patients who were potential referrals. An email from six of those physicians indicated that they were dissociating from the appellant as a result of the tweets, emphasizing that they need a safe space for their patients. The motion judge noted that at least one physician would no longer refer patients to the appellant’s clinic. In these circumstances, and at this early stage of the proceeding, the result is likely significant, rather than nominal, harm to the appellant’s reputation.
[78] The appellant has claimed $5 million in general damages and a further $1 million in punitive, aggravated, and exemplary damages. This seems to be a high amount, but as Pointes emphasizes, damages need not – indeed, usually cannot – be determined at so early a stage in the proceedings. Again, s. 137.1 is designed to weed out strategic or abusive proceedings at an early stage; it is not a summary judgment motion. The motion judge can do no more than identify types of damages and the likely magnitude of those damages. Ultimately, damages must be quantified at trial.
[79] The motion judge did not distinguish the damages suffered having regard to the expression of each respondent. He stated simply that the appellant was “likely to establish that he has suffered economic harm”, given that the impugned communications were likely to be read by his customer base of doctors and patients. As the appellant’s business operates on the basis of referrals from physicians, it is reasonable to infer that the appellant has likely suffered harm and that the harm is significant to the appellant’s business. That is all that is required at this stage of the proceeding. Moreover, the appellant points to further monetary losses he claims to have suffered as a result of the respondents’ communications. [6]
[80] Evans-Bitten argues that the appellant’s losses are too remote to establish causation, but the argument overstates things considerably. As the Supreme Court stated in Bent, at para. 152:
A defendant can be liable for each republication of their initial publication in at least three situations: (i) if the defendant has authorized the republication; (ii) if the republication is the “natural and probable consequence” of the defendant’s initial publication; and (iii) if the republication was foreseen or reasonably foreseeable by the defendant. [Citation omitted.]
Evans-Bitten used hashtags – links that brought her tweets to the attention of people beyond her followers – and engaged with the Guelph Family Health Team’s Twitter account in an apparent attempt to increase the reach of her tweet. She must be taken to have intended her tweet – and tweeting history – to be shared, and it was shared by the respondents Kirkconnell and Smith. Again, it must be emphasized that causation is being determined only in a preliminary manner for the purposes of s. 137.1(4)(b). As Pointes confirms, at para. 71, “no definitive determination of harm or causation is required” at the s. 137.1(4)(b) stage. The appellant is required only to provide evidence permitting the court “to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link”. He has succeeded in doing so.
(iii) The public interest in protecting the respondent Evans-Bitten’s expression
[81] The public interest in protecting Evans-Bitten’s expression requires consideration not only of the quality of that expression but the motivation behind it: Pointes, at para. 74. At para. 80, the Supreme Court outlined a number of considerations that may be relevant in determining the public interest in protecting particular expression:
For example, the following factors, in no particular order of importance, may be relevant for the motion judge to consider: the importance of the expression, the history of litigation between the parties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expression either by a party or by others, the defendant’s history of activism or advocacy in the public interest, any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award, and the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group or a group protected under s. 15 of the Charter or human rights legislation. [Emphasis in original.]
[82] The traditional indicia of a SLAPP suit – a history of litigation or the threat of litigation being used to silence critics; a financial or power imbalance that strongly favours the plaintiff; a punitive or retributory purpose that motivates the plaintiff’s claim; and minimal or nominal damages suffered by the plaintiff – may also be relevant, provided that they are tethered to the text of s. 137.1(4)(b). That is, provided that they are not treated as determinative and are considered in the weighing analysis the section prescribes: The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381, at para. 111.
[83] The public interest in protecting Evans-Bitten’s expression must be understood having regard to the context of the tweeting relationship between the parties. Evans-Bitten and the appellant did not know each other. It is significant that Evans-Bitten’s first tweet concerning the appellant in 2019 – what she describes as her challenge to him – came a few days after his tweet in which he posted a picture of himself posing with the premier and a cabinet minister. Evans-Bitten asked why the appellant posed with “known homophobic conservative politicians”, and stated: “If you support them, you are for homophobia”.
[84] This was provocative behaviour – in essence, a gratuitous personal attack on a stranger. And things escalated from there. The appellant’s earlier tweets – which referenced both the mayor of Toronto and the prime minister – were political in nature, but they were not directed at Evans-Bitten. They were posted by the appellant to his Twitter account in 2019 and deleted not long after, according to the appellant, because he realized they were inappropriate and insensitive. Evans-Bitten’s June 11, 2021 tweet included screenshots of these tweets, which had been deleted some 18 months earlier.
[85] Evans-Bitten submits that her expression must be understood in the context of her membership in and defence of the LGBTQ community. This submission was developed in the context of the Supreme Court’s decision in Hansman v. Neufeld, which was decided after the appeal in this case was argued. The parties made supplementary written submissions concerning the impact of Hansman on this case. I review this decision and its implications before considering its impact on this appeal.
(iv) Hansman v. Neufeld
[86] Hansman concerned British Columbia legislation that is virtually identical to s. 137.1. Barry Neufeld, an elected public school board official, criticized provincial government policy concerning education about gender identity and sexual orientation. Glen Hansman, a gay man, teacher, and then president of the British Columbia Teachers’ Federation, criticized Neufeld’s views as bigoted, transphobic, and hateful; accused him of undermining safety and inclusivity for transgender and other 2SLGBTQ+ students in schools; and questioned whether he was suitable to hold elected office. Neufeld sued in defamation and Hansman brought a motion to have the proceedings dismissed under the counterpart British Columbia legislation.
[87] The Supreme Court deferred to the motion judge’s finding that Neufeld had adduced “almost no evidence of damage suffered” as a result of Hansman’s statements. In contrast, the court found that Hansman’s speech was close to the core of freedom of expression, in serving a truth-seeking function and seeking to counter expression that he and others considered as undermining the equal worth and dignity of marginalized groups. There was a great public interest in protecting his expression, which concerned both government education policy and the fitness of a candidate for public office. Hansman’s expression was solicited by the media and motivated by his desire to combat discriminatory and harmful expression and to protect transgender youth in schools. In these circumstances, the Supreme Court concluded that the public interest in allowing Neufeld’s defamation action to continue was outweighed by the public interest in protecting Hansman’s expression.
[88] The appellant points to a number of factors that distinguish his action against Evans-Bitten from the action in Hansman. That case concerned a “rough, back-and-forth submission of opinions in a public forum”; it involved debate concerning a government initiative. In this case, by contrast, the appellant was not discussing any government initiative of interest to the public, and Evans-Bitten’s June 11, 2021 tweet was “improperly criticizing a private organization”.
[89] Conversely, the respondent Evans-Bitten argues that Hansman is extremely similar to this case and governs its outcome. She emphasizes that the court must consider the importance of expression from members of historically marginalized communities and that her speech – not the appellant’s – was under threat. Evans-Bitten’s commentary was “a form of public service announcement” and so attracts the same protection as Hansman’s expression.
(v) What is really going on here?
[90] The Supreme Court emphasized in Pointes, at para. 81, that s. 137.1(4)(b) is “open-ended”; the task for the motion judge is to determine “what is really going on”. Both the quality of the expression, and the motivation behind it, are relevant considerations. So, what is really going on here?
[91] Evans-Bitten asserts that she was drawing attention to something she thought was unfair: that members of the LGBTQ community must either attend a clinic owned by a person who holds anti-LGBTQ views or drive to another town to receive services. Her expression was, in other words, a public service announcement made during Pride month in June 2021.
[92] But the history of her expression is telling against this characterization and provides important context to assess the motivation behind her tweets. Evans-Bitten is a stranger to the appellant but commenced a campaign to denounce him. Her expression is characterized by accusations and personal invective. She called the appellant a homophobe simply for posing with conservative politicians, called him a transphobe and a bully, among other things, and suggested that either he or those who work at his clinic will engage in discrimination against members of the LGBTQ community. As the motion judge recognized, her pattern of tweeting is immoderate; she denounced the appellant “for such banal things as appearing in photographs with [conservative politicians], as if political disagreement with her is inherently evil”.
[93] This is not a case like Hansman, which involved political debate on a matter of public policy between participants in the political process – a debate conducted in the media involving a union leader and an elected school board official. As the majority of the Supreme Court noted, the defendant’s expression in that case “focused on the views that [the plaintiff] expressed, and not who he is as a person”: at para. 92. That cannot be said of this case. Evans-Bitten makes no claim to being a community spokesperson on this or any other issue; she is a private individual. The appellant is not a public figure and is not standing for elected office; he is a businessman who owns a clinic that provides medical imaging services. This is a case between private parties involving apparently gratuitous personal attacks and vitriol, which there is relatively less public interest in protecting: Pointes, at para. 75.
[94] Evans-Bitten commenced her criticism of the appellant long prior to her June 11, 2021 tweet. Indeed, that tweet was not posted in response to the appellant’s tweets with which she took issue; the appellant had removed those tweets from his Twitter account some 18 months earlier. This significantly undermines any characterization of her expression as counter-speech, as in Hansman.
[95] In Hansman, the motion to dismiss Neufeld’s defamation action succeeded because the parties were participating in a public political debate on a school board policy issue, a matter of great public interest, while Neufeld failed to establish that Hansman’s expression caused him any substantial harm. Indeed, Neufeld had continued to express the same views despite Hansman’s criticism and had subsequently won re-election to the school board. In those circumstances, there was no substantial public interest in permitting Neufeld to continue his defamation action.
[96] In contrast, what we have here is an exchange between private parties on a social media platform, and a likelihood that substantial harm may have occurred. This is not the first time that this has happened and it will not be the last. It is not to be excused simply because it occurred on social media. As I have said, the law of defamation applies to social media just as it does to publication in more traditional media.
[97] The appellant alleges that Evans-Bitten’s expression was part of a malicious campaign designed to hurt him and his business. He may not succeed in proving his allegations at trial, but that is not our concern at this stage. The appellant has established that he is likely to have suffered substantial damages as a result of Evans-Bitten’s expression, and that the public interest in protecting Evans-Bitten’s expression is relatively low.
[98] In these circumstances, the appellant has met his burden of demonstrating that the public interest in permitting his action to continue outweighs the public interest in protecting Evans-Bitten’s expression. His action should not be dismissed at this early stage.
CONCLUSION
[99] I summarize my conclusions as follows:
Evans-Bitten
The motion judge erred in his assessment of the merits-based hurdle. There are grounds to believe that Evans-Bitten’s fair comment defence will not succeed. Accordingly, the appellant has cleared the merits-based hurdle.
The appellant has established that the public interest in permitting him to continue his defamation action outweighs the public interest in protecting Evans-Bitten’s expression. As a result, his defamation action against her may continue.
Kirkconnell and Smith
The appellant has failed to establish that there are grounds to believe that the respondents have no fair comment defence. As a result, his defamation action against them is dismissed.
DISPOSITION
Evans-Bitten (C70482)
[100] I would allow the appeal and substitute an order dismissing the s. 137.1 motion. I would not interfere with the motion judge’s decision to dismiss the appellant’s action as against Kathryn Evans-Bitten.
[101] If the parties cannot agree on costs they may make submissions, including with respect to any costs relating to Kathryn Evans-Bitten, up to 5 pages in length, not including their cost outlines, within 21 days of the release of these reasons.
Kirkconnell and Smith (C70468)
[102] I would dismiss the appeal.
[103] If the parties cannot agree on costs, they may make submissions up to 5 pages in length, not including their cost outlines, within 21 days of the release of these reasons.
Released: August 3, 2023 “J.S.”
“Grant Huscroft J.A.”
“I agree. Janet Simmons J.A.”
“I agree. Coroza J.A.”
APPENDIX ‘A’
Courts of Justice Act, R.S.O. 1990, c. C.43
Dismissal of proceeding that limits debate
Purposes
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. 2015, c. 23, s. 3.
Definition, “expression”
(2) In this section,
“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity. 2015, c. 23, s. 3.
Order to dismiss
(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. 2015, c. 23, s. 3.
No dismissal
(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. 2015, c. 23, s. 3.
No further steps in proceeding
(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of. 2015, c. 23, s. 3.
No amendment to pleadings
(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,
(a) in order to prevent or avoid an order under this section dismissing the proceeding; or
(b) if the proceeding is dismissed under this section, in order to continue the proceeding. 2015, c. 23, s. 3.
Costs on dismissal
(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. 2015, c. 23, s. 3.
Costs if motion to dismiss denied
(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances. 2015, c. 23, s. 3.
Damages
(9) If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate. 2015, c. 23, s. 3.
[1] The full text of s. 137.1 is set out in Appendix ‘A’.
[2] Probhash Mondal and 2345171 Ontario Inc., operating as Guelph Medical Imaging, are both appellants in these appeals. For clarity, I refer to Mondal as “the appellant” throughout these reasons.
[3] Kathryn Evans-Bitten was sued by the appellant for conspiracy. The motion judge found no basis for this cause of action and the matter was not pursued in argument on this appeal. Apart from the disposition, she will not be mentioned in these reasons beyond this point.
[4] I note that the respondents’ pleadings raised defences beyond fair comment. However, the motion judge addressed only the fair comment defence, and the parties’ submissions on these appeals focused on this defence.
[5] In his main factum, the appellant also submitted that the motion judge erred in holding that the June 11, 2021 tweet was commentary. However, the submissions on this appeal focused on whether there are grounds to believe that malice would defeat the fair comment defence, and in his supplementary written submissions the appellant characterized that issue as the “main issue before this [court]”. Given my conclusion on the merits-based hurdle on the malice issue, it is not necessary for this court to address the appellant’s argument that the motion judge erred in concluding that the June 11, 2021 tweet was commentary.
[6] In his statement of claim against the respondents Kirkconnell and Smith, the appellant asserts that he lost an agreement he had to rent premises in a building he owned to several medical professionals as a result of the respondents’ email, and that he had already performed approximately $150,000 in renovations to the building in readying it for the lease. This has jeopardized an agreement to rent further space to a potential pharmacy tenant at an annual rent of between $164,920 and $259,160.
