COURT OF APPEAL FOR ONTARIO

CITATION: 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539

DATE: 20230816

DOCKET: C70562

Pepall, van Rensburg and Benotto JJ.A.

BETWEEN

2110120 Ontario Inc. o/a Cargo County Group, Randeep Sandhu Kiranjit Sandhu, Evandeep Sandhu, Paweldeep Sandhu

Plaintiffs (Respondents)

and

Gurmukhjeet Buttar, Karandip Buttar, Dharamjot Clair, Parbat Sangha, Naujawan Support Network, John Doe, and Jane Doe

Defendants (Appellants)

Sean Dewart, Ian McKellar and Amani Rauff, for the appellants

Andrew J. Kania, for the respondents

Jackie Esmonde and Kylie Sier, for the intervener, Workers’ Action Centre

Heard: December 15, 2022

On appeal from the order of Regional Senior Justice Leonard Ricchetti of the Superior Court of Justice, dated March 21, 2022, with reasons reported at 2022 ONSC 1766, and from the costs order, dated April 14, 2022.

van Rensburg J.A.:

Overview

[1] The appellants appeal an order dismissing their motion made pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, (the “CJA”), commonly known as the “anti-SLAPP” provision. If they are unsuccessful in this appeal, they seek to appeal the costs order.

[2] The action was commenced after the appellants, who were former truck drivers for the corporate respondent, initiated a campaign to recover alleged unpaid wages. Legal proceedings in which the appellants claimed that they were entitled to be paid as employees, and not as independent contractors, were underway but had not been concluded. The appellants were supported in their campaign by the Naujawan Support Network (“NSN”), and the Workers’ Action Centre (“WAC”) who organized rallies at the business premises of the corporate respondent and outside the residence of its principals, the personal respondents. The appellants asserted verbally and in signs and flyers distributed at the rallies, that the respondent Randeep Sandhu was a “wage thief” and they made other allegedly harassing and defamatory statements. The same statements were posted on social media, together with Randeep Sandhu’s home address. The appellants and others disrupted Cargo County’s business with a “phone zap” that lasted several days and posted negative reviews of the business online.

[3] The respondents commenced an action claiming injunctive relief and damages for a variety of causes of action, including defamation, trespass, breach of privacy and intentional infliction of emotional harm (the “Action”). The appellants moved under s. 137.1 of the CJA to dismiss the Action. The motion judge dismissed the motion, allowing the Action to proceed, and awarded the respondents their costs of the dismissed motion.

[4] For the reasons that follow, I would dismiss the appeal, and although I would grant leave to appeal costs, I would dismiss the appeal of the costs order.

Facts

[5] The facts set out in this section are largely drawn from the motion judge’s reasons, and, except where indicated, are uncontested on appeal.

[6] The respondent 2110120 Ontario Inc., operating as Cargo County Group (“Cargo County”), is a trucking company. The respondents Randeep Sandhu and Kiranjit Sandhu are each 50% owners of Cargo County, while their sons, Evandeep Sandhu and Paweldeep Sandhu, are the vice-president of operations and chief executive officer.

[7] The appellants were, at one time or another, housemates who worked as drivers for Cargo County for different periods between 2019 and 2020. They were nominally independent contractors (three of them through their personal corporations), having signed documents to that effect at least for income tax purposes, and they were all non-citizens of Canada. Gurmukhjeet Singh (incorrectly described in the statement of claim as Gurmukhjeet Buttar) and Dharamjot Clair were permanent residents, while Karandip Singh (incorrectly described as Karandip Buttar) and Parbat Sangha were non-residents with permits to work in Canada.

[8] After ceasing to work for Cargo County, three of the appellants submitted complaints under the Canada Labour Code, R.S.C. 1985, c. L-2(the “CLC Proceedings”). In the CLC Proceedings they claimed payment as former employees of Cargo County, for unauthorized deductions, and for unpaid wages, vacation, overtime, termination, and severance pay. In response to the complaints, Cargo County’s principal assertion was that the claimants were independent contractors and had been paid all amounts due under their respective contracts.

[9] As of September 2021, the CLC had not determined Mr. K. Singh’s claim, but had decided the claims of Mr. G. Singh and Mr. Clair in their favour, ordering Cargo County to pay the monies owed. Not agreeing with the CLC’s decision, Cargo County appealed the orders to the Canada Industrial Relations Board. As a statutory condition of appealing, Cargo County paid the disputed monies to the CLC pending the decisions on the appeals.

[10] The appellants were unhappy with the progress of the CLC Proceedings, and they wanted their claims to be paid immediately. They approached several organizations, including NSN, an unincorporated association of students, workers, and others who support young Punjabi workers and students in Canada, WAC, a non-profit organization dedicated to helping workers in low-wage jobs in Toronto, and the Labour Community Services of Peel, a community legal services organization. NSN is named as a defendant in the Action but was not a moving party in the s. 137.1 motion, although its representative provided an affidavit in support of the motion. A representative of WAC also filed an affidavit in support of the motion, and WAC was granted intervener status on the appeal.

[11] On September 23, 2021, the executive director of WAC and the appellants attended at Cargo County’s offices. The respondents allege that they attended uninvited and making threats, which is disputed by the appellants who assert that their intention was to discuss their claims. The same day, the executive director of Labour Community Services of Peel wrote to Cargo County, enclosing copies of the CLC payment orders and demanding payment of the appellants’ claims. On September 24, 2021, Cargo County’s lawyer replied by letter, copied to the appellants, indicating that the CLCcomplaint process would and should be followed, and providing notice under ss. 2 and 5 of the Trespass to Property Act, R.S.O. 1990, c. T.21. Mr. G. Singh responded by email that “they can’t stop us by these legal terms”.

[12] NSN sent a letter to Randeep Sandhu on September 25, 2021 outlining the alleged amounts owed to the appellants and setting a deadline for payment of October 1, 2021. The letter also indicated that, if the deadline was not met, members of NSN would organize public protests, “expose [Randeep Sandhu] and Cargo County Group to other truck drivers, to the Panjabi community in Peel and to the broader public across Ontario”, speak publicly about him and his company at an October 2 rally, and share details of the appellants’ stories with local media in attendance. The respondents’ counsel responded by letter, copied to each of the appellants, stating that Cargo County was dealing with the claims through the CLClegal process. The letter also gave notice under the Trespass to Property Act and urged NSN to obtain legal counsel before carrying out its threats. On September 27, 2021, NSN posted the letter it had sent to Randeep Sandhu to its Facebook page.

[13] On October 2, 2021, at an event organized by NSN and some of the appellants, a crowd of approximately 250 people marched down the street and gathered in front of the personal respondents’ home. Some attendees carried signs stating that Randeep Sandhu was a “thief” and “pay your drivers now”. The appellants held up a banner with a photo of Randeep Sandhu and the words “Chor Alert”, Punjabi for “Thief Alert”. Protesters walked along the respondents’ street, shouting and chanting, and instigating others to chant, that Randeep Sandhu was a thief, and blocked the driveway to the home. It is unclear, on the evidence at the motion, whether anyone attempted to enter or leave the home, and whether, as alleged by the respondents, the protesters trespassed onto their private property.

[14] Photographs and videos from the rally on October 2, 2021, were posted on multiple social media platforms. While all but one of the appellants deny that they personally posted, reposted or liked any posts on social media in respect of the October 2 event, it is not disputed that NSN and WAC, and their members, posted photos and videos from the rally, some in real time. Some of the posts included the home address of Cargo County’s principals.

[15] Between October 6 and 12, 2021, the appellants, with the assistance of WAC, promoted and participated in a “phone zap”, in which hundreds of calls were made to Cargo County during its business hours, and numerous one-star Google reviews and negative comments were posted online in relation to Cargo County. The appellants and the NSN and WAC affiants acknowledged that all of these measures were intended to force Cargo County to pay the appellants’ claims.

[16] The respondents commenced the Action on October 12, 2021 against the appellants, NSN and NSN’s principals (identified as John Doe and Jane Doe). Referring to the events of October 2, 2021, the Action sought injunctive relief and damages for alleged defamatory statements (“pay your drivers now”, “thief”, and superimposing “Chor Alert” and “thief” on Randeep Sandhu’s photo), and damages for trespass, intentional infliction of emotional distress, publicly placing a person in a false light, intrusion upon seclusion, invasion of privacy, and harassment.

[17] The respondents’ counsel sought, but did not obtain, assurances from the appellants’ legal counsel that there would be no further protests. There were three further protests at Cargo County’s business premises. On each occasion, the appellants attended, and statements were made about the respondents being “wage thieves”. On October 26, 2021, the appellants, with the assistance of WAC, conducted an “informational picket”, outside Cargo County’s head office. On October 30 and December 4, 2021, further rallies were held outside Cargo County’s business premises. On at least one occasion flyers were distributed in person and posted online stating that Cargo County had committed “wage theft”, “illegal deductions” and “other violations of the law”, and was refusing to pay what it owed to drivers who had “rightly used all the proper channels to get justice”.

[18] It was not disputed that, when the actions of the appellants and their supporters occurred, the three complaints were still subject to the CLC legal process, and no monies were owing. Mr. Clair had obtained a payment order on August 24, 2020 for $13,427 and Mr. G. Singh had obtained a payment order on April 7, 2021 for $18,579. As already noted, these orders were under appeal and Cargo County had paid to the government the amounts set out in the payment orders as a condition of the appeals. Mr. K. Singh received on November 25, 2021, a preliminary decision that he had been an employee of Cargo County, with notice that the assessment of his complaint on its merits was pending. No CLC complaint had been advanced by Parbat Sangha.[^1]

The motion judge’s decision

[19] On December 17, 2021, the appellants brought a motion seeking dismissal of the Action pursuant to s. 137.1 of the CJA.

[20] Subsections 137.1(3) and (4) of the CJA provide as follows:

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.

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.

[21] The motion judge dismissed the motion on the basis that the appellants had not satisfied their burden under s. 137.1(3) to establish that the Action arose from an expression that relates to a matter of public interest. First, he observed that the public interest aims and goals of NSN and WAC were not a guarantee that the expressions and actions of the appellants were a matter of public interest, as “[t]he specific facts and circumstances of the statements and actions taken in each case must be scrutinized”: at para. 69. He accepted that the impugned statements, as opposed to the appellants’ actions (which he addressed later in his reasons), were expressions within the meaning of s. 137.1(2): at para. 70.

[22] The motion judge then turned to whether the proceedings arising from the expressions related to “a matter of public interest”, and thus satisfied the threshold requirement under s. 137.1(3). He accepted that s. 137.1(3) should be interpreted generously and that the threshold was not high: at para. 73. He instructed himself that the court should start by asking “what is the expression about”, and that, citing 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, the concept of public interest is “a broad one that does not take into account the merits or manner of the expression nor the motive of the author.” The determination was to be made objectively and the appropriate inquiry was contextual: at paras. 78-79.

[23] In this regard, the motion judge noted that, in considering what the expressions “wage thief”, “wage theft”, “pay your employees now” and “stolen” were about, the most important part of the context was the fact that three of the appellants had commenced a legal process, and that the primary thrust of the expressions was: (a) to circumvent the ongoing legal process by threats of public exposure; and (b) when the threats failed to achieve their desired results, to publicly make false, misleading, defamatory expressions and to take improper actions designed to force Cargo County to capitulate by paying the alleged claims: at paras. 80-81.

[24] The motion judge concluded that the public interest was not, as alleged by the appellants, that Cargo County was exploiting or taking advantage of its employees, as “[t]he employer was engaged and respected the legal process commenced by [the appellants]”: at para. 83. The motion judge contrasted this case with a case the appellants had relied on, Singh v. Sandhu, (26 January 2022), Brampton, CV-21-3181 (Ont. S.C.), where the same judge had dismissed an action on an anti-SLAPP motion. The motion judge observed that, in Singh, unlike the present case, there was evidence that the corporate plaintiff was attempting to exploit the defendant’s status to deprive him of earned wages, and there was no attempt to circumvent any legal process: at paras. 84-89.

[25] The motion judge noted that “pay them now” was a “blatant attempt to force Cargo County to circumvent the ongoing legal process” and “would have a chilling effect on the public’s respect for legal process and, in particular, the CLC statutory process established to protect employees in similar cases”: at para. 92. He concluded that the impugned words were “defamatory and misleading” and “deliberately intended to inflame the public (who did not know the details or background of the claims) and to force Cargo County to capitulate to the demands rather than follow the legal process”: at para. 94.

[26] The motion judge noted that this was not a case where: (1) a large employer was using its size and financial power to deprive employees of amounts due; (2) the motivation for making the expressions was to bring to the public’s attention matters of public interest; (3) the expressions were intended to be informational about Cargo County’s practices; or (4) the employer brought the proceeding to silence the appellants from bringing their cause to the public: at paras. 98-101.

[27] The motion judge stated that “the goal of the expressions … was not to inform the public or truck drivers about the business practices at Cargo County but was intended to pressure and force Cargo County to disregard the legal process and to pay the entire amounts claimed”: at para. 102. He concluded that, as in Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at paras. 29, 36 and Grist v. TruGrp Inc., 2021 ONCA 309, 156 O.R. (3d) 171, at paras. 22-23, this was a legal dispute between private parties, and strictly related to a matter of private interest: at paras. 102, 104.

[28] After deciding to dismiss the motion under s. 137.1(3), the motion judge stated that, had it been necessary to go on to consider s. 137.1(4), the appellants had not put forward any real indication of their defences: at para. 106. And, while noting that this was not necessary given his conclusion that the appellants failed to meet their onus under s. 137.1(3), he was persuaded that some of the other causes of action raised in the statement of claim were torts not grounded on the expressions intended to communicate information and were entirely divorced from any expressions or intention to convey information to the public, including the “phone zap”, the deliberate public disclosure and dissemination of the details of the private home of the principals of Cargo County, the trespass claim, and the manipulation of social media to deliberately negatively impact Cargo County’s business: at paras. 107-109.

[29] In separate reasons respecting costs of the motion, the motion judge considered, pursuant to s. 137.1(8), whether it was “appropriate in the circumstances” to award costs to the respondents. The motion judge recognized that there is a presumption against granting a costs award to the responding party on an unsuccessful s. 137.1 motion. He then considered Veneruzzo v. Storey, 2018 ONCA 688, 23 C.P.C. (8th) 352, where this court found it appropriate to grant costs when the proceeding was not brought for an improper purpose and there was no merit to the s. 137.1 motion. In his view, the circumstances were “unique and compelling that an order for costs should be made”: at para. 12. This was not a proceeding where the broad principles of s. 137.1(1) were engaged: while some statements were made, there was also “non-statement conduct” designed to harm the respondents’ business and reputation to circumvent the ongoing legal process through alleged trespass, intimidation, disruption and phone zaps: at para. 13. The purpose of the conduct was to force the respondents to capitulate to the claims, regardless of the merits of the existing legal claims: at para. 14. And the motion to dismiss was meritless and designed to avoid the consequences for the appellants: at para. 15.

[30] Turning to the quantum, the motion judge awarded partial indemnity costs of $30,000, given the importance of the motion, the voluminous materials, the number of witnesses examined, the factums filed, and the oral submissions made over two days: at para. 26. He further observed that, while there is often hesitation to award costs against employees with outstanding employment claims, the appellants had recourse to monies from a GoFundMe campaign: at para. 27. He stated that, while this fact did not influence his determination on the entitlement, scale, or quantum of costs, it simply made the point that the appellants could pay a reasonable costs award, in whole or in part, from other funds: at para. 27.

Issues

[31] The broad issues on this appeal are: (1) whether the motion judge erred in dismissing the anti-SLAPP motion after concluding that the appellants had failed to meet their burden under s. 137.1(3); and, if so, (2) whether the respondents have met their burden under s. 137.1(4) such that the appeal must be dismissed. The appellants also seek leave to appeal the motion judge’s costs order, arguing that the award was plainly wrong and involved an error in principle.

[32] As I will explain, I agree with the appellants that the motion judge erred by relying on factors that are irrelevant to the s. 137.1(3) analysis and by dismissing the anti-SLAPP motion at the threshold stage. In my view, the appellants have met their burden of establishing on a balance of probabilities that the Action arose from an expression made by the appellants that relates to a matter of public interest. Turning to s. 137.1(4), I am however satisfied that the respondents have met their burden of establishing that: (a) there are grounds to believe that (i) the Action has substantial merit and (ii) the appellants have no valid defence in the Action; and (b) that the harm they are likely to suffer as a result of the expression is sufficiently serious that the public interest in permitting the Action to continue outweighs the public interest in protecting the expression.

[33] I pause here to note that in Hansman v. Neufeld, 2023 SCC 14, which was released by the Supreme Court on May 19, 2023 (after the hearing of this appeal), the court stated that the weighing exercise in s. 137.1(4)(b) need not be the final step in the analysis. In many cases, this may reduce the extensive time and cost spent on a detailed analysis of s. 137.1(4)(a). The outcome of an anti-SLAPP motion, when considered in the light of the origins and stated purposes of the provision, is typically obvious to a motion judge. That said, a motion judge must still address the requirements of s.137.1(4)(a)(i) and (ii), keeping in mind that an anti-SLAPP motion is a screening mechanism and engages a limited review of the merits and defence of the action.

[34] In this appeal, given my conclusion on the s. 137.1(3) issue, I must consider the matter afresh and briefly review the merits and the defences, based on the evidence. Having said that, the weighing exercise leads one to the unmistakeable conclusion that the motion should be dismissed.

Discussion

[35] A motion judge’s determination on an anti-SLAPP motion is entitled to deference on appeal absent an error of law or palpable and overriding error: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 77; Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, 460 D.L.R. (4th) 245, at para. 21 (“CUPW”); Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 478 D.L.R. (4th) 514, at para. 42. If such an error has been established, it is up to this court on appeal to consider the matter afresh: Nanda v. McEwan, 2020 ONCA 431, 450 D.L.R. (4th) 145, at paras. 47-49.

(1) The motion judge erred in law in concluding that the appellants had not met their burden under s. 137.1(3)

[36] The appellants contend that the motion judge erred in law in his determination that they had not met their burden under s. 137.1(3) in three ways: first, by considering the appellants’ motive, the merit of their expression, and the manner in which it was made; second, in failing to consider the subject matter of the expression as a whole and scrutinizing portions of the expression in isolation; and third, in suggesting that their actions did not constitute expressions as defined under s. 137.1(2), such that some causes of action, such as the trespass claim, were not proceedings that “arose from” an expression that relates to a matter of public interest.

[37] The respondents argue that the motion judge did not err in his s. 137.1(3) analysis of whether the appellants’ expressions related to a matter of public interest. The respondents emphasize the Supreme Court’s guidance in Pointes Protection, at para. 29, that a matter does not relate to the public interest merely by making reference to something that is of public interest. In the respondents’ view, the expression at issue arose from a private dispute about compensation and is analogous to the expression in Sokoloff, Grist, and Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391, all cases in which this court upheld dismissals of anti-SLAPP motions at the s. 137.1(3) stage. Further, the respondents argue that the motion judge was entitled to conclude that the actions of the appellants, such as their trespass on personal property and the “phone zap”, were not “expressions” within the meaning of s. 137.1(2).

[38] In my view, the appellants have met their burden under s. 137.1(3) to establish, on a balance of probabilities, that the Action arose from expressions relating to a matter of public interest. As I will explain, while expressions about some private disputes may well not fall under s. 137.1, the motion judge’s conclusion that the Action did not arise from an expression relating to a matter of public interest was based on factors that, although relevant to s. 137.1(4), could not properly inform his analysis under s. 137.1(3).

[39] Section 137.1(3) sets out a “threshold burden”: Pointes Protection, at para. 21. It requires the moving party to establish, on a balance of probabilities, that the proceeding arises from an expression that “relates to a matter of public interest”:

On a 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.

[40] “Expression” is broadly defined as “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”: s. 137.1(2).

[41] It is not necessary for the purpose of the s. 137.1(3) analysis in this case to determine which, if any, of the appellants’ actions, as opposed to their oral and written statements, constituted an “expression”. All of the actions, whether or not they are considered an expression, form part of the context in which the expression occurred. It is sufficient, and there is no question that, the Action was precipitated by the allegedly defamatory and harassing statements made verbally, in print and on social media asserting “wage theft” and other improprieties against Cargo County and its principals. The statements were found to be expressions, and this is not in issue. The key issue before the motion judge was whether such expressions related to a matter of public interest.

[42] There are several guiding principles in respect of s. 137.1(3) that have been articulated by the Supreme Court in Pointes Protection and in decisions of this court. Those relevant to this appeal can be summarized as follows:

• The court should adopt a “broad and liberal” and “generous and expansive” approach to whether the expression relates to a matter of public interest: Pointes Protection, at paras. 26, 30. The burden on the moving party is not onerous: Pointes Protection, at para. 28.

• The interpretation of “public interest” must be informed by the purpose of the anti-SLAPP legislation, which is to safeguard the fundamental value that is public participation in democracy, and there is necessarily a normative aspect to what is “genuinely” a matter of public interest: Pointes Protection, at para. 30; Sokoloff, at para. 18.

• Ultimately the inquiry is a contextual one that is fundamentally asking what the expression is really about: Pointes Protection, at para. 30.

• In considering the entire context of the expression, “it is not legally relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest – there is no qualitative assessment of the expression at this stage”: Pointes Protection, at para. 28. The defendant’s “motive, merit and manner are irrelevant in determining whether [an] expression relates to a matter of public interest”: Pointes, at para. 65; Sokoloff, at para. 25.

[43] As the point of departure, I note that this appeal is one of several anti-SLAPP cases that involve a dispute between private parties in respect of a monetary claim. One such case, relied on by the respondents, is this court’s decision in Sokoloff, involving a fee dispute with a lawyer.

[44] In Sokoloffthe expression giving rise to the action consisted of the appellant’s standing outside the respondent’s law offices with placards proclaiming his views about the parties’ financial dispute. He claimed that he was owed money under a referral agreement. As here, the motion judge dismissed the anti-SLAPP motion after finding that the appellant failed to pass the s. 137.1(3) threshold. This court concluded that the motion judge had erred when he considered and criticized the way in which the appellant chose to express himself, and the motivation for the communication: at para. 21. It was irrelevant both that the appellant lacked decorum and was trying to embarrass the respondent, and that he professed to be indifferent to the public interest and admitted that he was only pursuing a personal claim.

[45] This court nonetheless dismissed the appeal. While Huscroft J.A. concluded that the motion judge had erred in considering the motive and manner of the expression, he had identified and applied other factors that were legally relevant to the conclusion that the s. 137.1(3) threshold had not been met. The appellant’s expression was about the parties’ private fee dispute, that did not relate to a matter of public interest simply because the dispute involved a lawyer who owed ethical obligations. As Huscroft J.A. observed, the appellant’s expression raised no “general concerns” about the ethical conduct of lawyers, “nor was it directed to anyone with an interest in the respondents’ conduct”: at para. 35.

[46] In the present case, the motion judge made errors similar to those at first instance in Sokoloff. Although he instructed himself on the need to disregard motive, in considering the context of the appellants’ expressions, his focus was nonetheless on their “motive, merit and manner” – the “why” and “how” of their expression – rather than on what it was about. The motion judge observed that the expressions were designed to deal with a collection dispute, and not to bring to the public’s attention matters of public interest, and that the goal of the expression was not to inform the public or truck drivers about Cargo County’s business practices, but to pressure and force Cargo County to disregard the ongoing legal process and to pay the appellants the entire amount claimed: at paras. 99-102. He also noted that the words “thief”, “theft” and “stolen” were unnecessary to describe a protest for unpaid wages, and that such words were defamatory, misleading, and deliberately intended to inflame the public and to force Cargo County to capitulate rather than follow the legal process: at para. 94. None of these considerations, however, are relevant to the analysis under s. 137.1(3).

[47] In the present case, the motion judge’s consideration of “what the expression was about” focused on and did not go beyond a consideration of the motives, merits and manner of the appellants’ expression, and the fact that the parties were engaged in a dispute about wages. He did not consider whether the expression, without regard to its qualitative features, related to a matter of public interest. This is in contrast to the same judge’s decision in Singh v. Sandhu, where he concluded that expressions by a driver and NSN about another trucking company and its principals, when considered in the full context, were clearly expressions on a matter of public interest, “of interest to other persons in similar situations, to the public and to the users of the Plaintiffs’ services”: at para. 84. The motion judge distinguished the two cases on the basis that Cargo County had paid the appellants and there was a legal process underway, while in Singh the driver had not been paid for several months despite demands, and that there was no attempt in Singh to circumvent any legal process: at paras. 84-85. These distinctions, however, that address the motives behind the expressions and their merits, are not material to the s. 137.1(3) analysis.

[48] In determining “what the expression was about”, and whether the expression relates to a matter of public interest, the court must consider the broader picture. An expression about a private dispute can nevertheless relate to a matter of public interest. Whether an “expression relates to a matter of public interest is determined by consideration of the particular expression in question, not the topic of that expression”: Echelon, at para. 11.

[49] In Nanda, this court allowed an appeal of the dismissal of an anti-SLAPP motion. The motion judge had dismissed the motion under s. 137.1(3) on the basis that the expression, by a member of a trade union, made 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. This court concluded that it was wrong for the motion judge to have focused on the manner in which the expression was made and its purpose. Rather, “what the expression was about” was in fact allegations of corruption and misconduct by a candidate for the office of president of a union. This was an expression of public interest, whether or not it was true, that was sufficient to meet the requirements of s. 137.1(3).

[50] Similarly, in the present case, the expressions were about the business practices of Cargo County and its principals – how they were treating their drivers and whether they were engaging in unfair, exploitative or illegal labour practices. Objectively considered, there was a public interest in the business practices of the respondents, and by extension other businesses engaging vulnerable workers. While the motion judge was correct to consider that the involvement of NSN and the WAC did not transform the private dispute into a matter of public interest, the involvement of these organizations was part of the overall context of the appellants’ expression.

[51] Whether or not the expression itself was accurate, and irrespective of the methods employed in its communication, the expression was about unfair labour practices. Although the genesis of the expression in this case was a wage dispute involving the appellants and Cargo County, and the expression pointed to the appellants’ claims and targeted the respondents, when considered in the broader context, the expression went beyond the resolution of a purely private dispute and raised issues about fair labour practices in respect of vulnerable workers, such that it related to a matter of public interest. This distinguishes the result in Sokoloffand some other cases involving private disputes, where s. 137.1(3) was not met. See, for example, Dent-X Canada v. Houde, 2022 ONCA 414 (simply referring to a matter of public interest – delivery times during the pandemic – did not mean that a single Facebook post by an unhappy customer raised an issue of public interest); Grist (a pleading referring to unfair competition was not of significance to anyone other than the parties involved and the institutions established to resolve their disputes); and Echelon (a website posting by an employee against a former employer was not of significance to the employer company’s customers or other members of the public).

(2) The respondents have met their burden under s. 137.1(4) to permit the Action to proceed

[52] Under s. 137.1(4) the court must determine whether: (a) there are grounds to believe that, (i) the proceeding has substantial merit, and (ii) the moving parties have no valid defence in the proceeding; and (b) the harm likely to 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 the expression.

(a) Section 137.1(4)(a) – The merits-based hurdle

[53] The two parts of subsection 137.1(a) are directed toward the same objective – they are “constituent parts of an overall assessment of the prospect of success of the underlying claim”: Pointes Protection, at para. 59.

[54] The “grounds to believe” standard is not high; it is more than mere suspicion but less than proof on a balance of probabilities: Pointes Protection, at para. 40. Accordingly, “the motion judge is not intended to wade deeply into the thicket to resolve contested factual assertions. The factual findings on a [s.137.1] motion are only provisional, based on a record that is not expected to be full”: Catalyst, at para. 40. The question is whether the court concludes from an assessment of the record on the motion “that there is a basis in fact and law – taking into account the context of the proceeding – to support a finding that the plaintiff’s claim has substantial merit, and that the defendant has no valid defence to the claim”: Pointes Protection, at para. 42. Any conclusion reached on the s. 137.1 motion is expressly limited to the motion and does not pronounce on the ultimate outcome of the action should it proceed to trial. This applies equally to the merits and the defence analysis. As the Supreme Court stated at para. 37 of Pointes Protection:

[I]n determining whether there exist grounds to believe at the s. 137.1(4)(a) stage, courts must be acutely aware of the limited record, the timing of the motion in the litigation process, and the potentiality of future evidence arising. Introducing too high a standard of proof into what is a preliminary assessment under s. 137.1(4)(a) might suggest that the outcome has been adjudicated, rather than the likelihood of an outcome. To be sure, s. 137.1(4)(a) is not a determinative adjudication of the merits of the underlying claim or a conclusive determination of the existence of a defence. [Italicized emphasis in original; underlined emphasis added.]

(i) Section 137.1(4)(a)(i) – Substantial merit

[55] I consider first whether there are grounds to believe that the Action has substantial merit. In addressing s. 137.1(4)(a)(i), the court must first determine “whether the plaintiff’s underlying claim is legally tenable and supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect of success”: Pointes Protection, at para. 59; Bent, at para. 88.

[56] The appellants acknowledge that there are grounds to believe that the respondents’ defamation claim has substantial merit. They assert however that the respondents have not met their burden under this provision because they have not adduced evidence to support the technical validity of the non-defamation torts that the respondents plead: intentional infliction of emotional harm, intrusion upon seclusion, and trespass. They raise concerns such as the absence of evidence of a “visible and provable illness” to support the claim for intentional infliction of emotional harm, and evidence to support the contention that the respondents had a reasonable expectation of privacy in their home address and any other personal information that was disclosed.

[57] I disagree. The court’s function under s. 137.1(4)(a)(i) is not to assess the potential merits of each individual cause of action pleaded in the statement of claim, but to determine whether there is reason to believe that the respondents will succeed in the proceeding. The question is whether “there is a single basis in the record and the law to support a finding of substantial merit”: Bent, at para. 88. That is, the court is concerned with the overall merits of the action as it relates to an expression in the public interest, and not the individual merits of each cause of action that is pleaded, including any that may be unrelated to the “expression” that is the focus of the anti-SLAPP motion.

[58] I am satisfied that the respondents have established that there are grounds to believe that the Action has substantial merit. The appellants admit to organizing the October 2 rally, holding placards and banners, and, in some cases, publicizing their actions in real time and otherwise on social media. The impugned statements, “wage thief”, “stolen” and “thief alert”, as they were used at the rally, are prima facie defamatory of Cargo County and Randeep Sandhu. On their plain meaning they suggest, if not actual criminal conduct by Cargo County and its owner, that the respondents are engaged in a practice of not paying their drivers for their work. There is evidence to support the three elements of a defamation claim: that defamatory statements were made, that they were made about some or all of the respondents, and that there was resulting and presumed harm.

(ii) Section 137.1(4)(a)(ii) – No valid defence

[59] Turning to the question under s. 137.1(4)(a)(ii), the initial onus is on the appellants to “put in play” their defences. It is then the onus of the respondents to demonstrate that there is reason to believe that none of the defences raised by the appellants will succeed: Pointes Protection, at para. 57; Bent, at para. 103.

[60] The initial question is therefore what, if any, defences the appellants have “put in play”. In Bent, at para. 104, the Supreme Court accepted that Ms. Bent had “put in play” the defences of justification and qualified privilege through her statement of defence. Where, as here, there is no statement of defence, the question is whether defences have been raised in other materials filed by the moving party. As Doherty J.A. wrote in this court’s decision in Pointes Protection, “bald allegations [and] unparticularized defences are not the stuff from which ‘grounds to believe’ are formulated” and accordingly, the material filed on the motion should be sufficiently detailed to allow the court to “clearly identify the legal and factual components of the defences advanced”: 2018 ONCA 685, 142 O.R. (3d) 161, at paras. 82-83. See also Pointes Protection, at para. 52.

[61] Although he was not specifically considering s. 137.1(4), the motion judge expressed the view that the appellants had put nothing forward in respect of a defence. In other words, he would have found that the appellants had not met their initial burden to put defences in play.

[62] There has been little judicial consideration of the evidentiary burden on a moving party to put a defence “in play”. In both their notice of motion and in their factum filed on the motion, the appellants advanced three defences that they say are supported by the law and the record: (1) justification – that the impugned statements were true at the time they were made; (2) fair comment – that the impugned statements were honestly held opinion; and (3) responsible communication on a matter of public interest – that the impugned statements were communications on a matter of public interest where they had taken reasonable care to ensure the accuracy of what was said. For the purposes of this appeal, I accept that the appellants have “put in play” the three defences that were relied on at first instance and in the appeal.

[63] Whether and to what extent the defences are supported by the evidence and are technically valid is the next issue to consider. Once a defence has been “put in play”, the question is whether the record that was before the motion judge – that is, the entire record, and not just the evidence put forward by the moving parties – supports or refutes the particular defence. Again, the standard is whether there is reason to believe that the moving parties will have no valid defence. To satisfy this burden, the responding party must show that the defences raised “are not legally tenable or supported by evidence that is reasonably capable of belief such that they can be said to have no real prospect of success”: Hansman, at para. 94; Pointes Protection, at para. 59.

[64] I will deal in turn with the three defences, to assess whether, on this preliminary record, there is reason to believe the defences will not succeed.

(1) The defence of justification

[65] Once a plaintiff makes a prima facie showing of defamation, the words complained of are presumed to be false. To succeed in the defence of justification, the defendant must establish the substantial truth of the "sting", or main thrust, of the defamatory words. “The sting of the words includes the expressed defamatory meaning of the words and any implication that is found to have been a correct defamatory meaning of them”: Peter A. Downard, The Law of Libel in Canada, 4th ed. (Markham: LexisNexis Canada, 2018), at paras. 6.2-6.3; CUPW, at para. 23; Bent, at para. 107; Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States,loose-leaf, 2nd ed., (Toronto: Thomson Reuters, 2017), at paras. 10-1, 10-47, 10-50, and 10-59. See also the Libel and Slander Act, R.S.O. 1990, c. L.12, s. 22.

[66] In assessing this defence, as well as the other defences the appellants have raised, it is important to keep in mind what was said that was allegedly defamatory, together with what reasonably would have been understood by the audience for the impugned statements. The defamation that is alleged in the Action is in relation to the words “thief alert”, “stolen” and “pay your drivers now” (in both English and Punjabi).

[67] The appellants contend that the impugned defamatory words were true because at the time they made their statements, an order existed for the respondents to pay the appellants a significant amount of money. They point to the fact that two of the appellants had received orders to pay, and decisions that they were employees and not independent contractors. In other words, they say that the “sting” of the impugned communication is properly understood to be that Cargo County was withholding money from them for work they had performed as drivers, and at the time they made their statements, that was, at its core, the true state of affairs. This is an argument that the impugned statements should not be taken literally, and that they should be understood in the context of the legitimate wage dispute the appellants were involved in with Cargo County.

[68] Whether the argument that the statements were true could prevail is informed by the interpretation given to the statements. Determining the defamatory meaning of the words complained of requires the court to ask: what would a reasonable member of the public who saw and heard the impugned statements at the time they were made understand them to mean? A statement that is alleged to be defamatory must be considered in the full context in which it is made, that is, in the context that was available and reasonably known to the intended and actual audience for the statement: WIC Radio v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420 (sub nom. Simpson v. Mair), at para. 56. The meaning of the impugned statements is determined on the basis of the record before the court and the court is not required to accept the interpretation proposed by the appellants: Catalyst, at para. 50. That said, in interpreting the words, the court “is to avoid putting the worst possible meaning” on them: WIC Radio, at para. 56.

[69] Words, even those that seem to impute a criminal offence, may be open to two meanings as different shades of meaning derive their colour from context: Brown on Defamation, at paras. 8-11. Here, the setting and background to the impugned words are the words on the banners, placards and pamphlets as well as the chanting at a protest over labour practices in a particular industry. Viewing the wider context, the ordinary listener might have understood the words “wage thief” to refer to wages wrongfully withheld. However, it is also reasonable to believe, at this stage of the proceeding, that the ordinary listener or reader could have interpreted the impugned statements quite literally: that Randeep Sandhu had committed a criminal or illegal act.

[70] Moreover, without taking too deep a dive into the record, there is evidence that the appellants did not communicate the context of the dispute that they were involved in, in particular that the CLC Proceedings were still underway, and that Cargo County had appealed the two orders to pay and had paid the full amount as a condition of its appeal. A reasonable trier of fact could conclude that the impugned words meant that either Cargo County did not owe any amounts to the appellants at that time, or it was withholding payment for good reason.

[71] To be clear, the meaning of the expression is something the court will need to determine at trial in assessing the defamation claim. However, at this stage, based on the defamatory meaning that could reasonably be given to the impugned expression, I am satisfied that there is a basis in the record and the law to support a finding that the statements that the respondents were “wage thieves” or had “stolen” the appellants wages were not substantially true. Accordingly, the defence of justification cannot be considered to weigh more in favour of the appellants such that it may be considered “valid” under s. 137.1(4)(a)(ii).

(2) The defences of fair comment and responsible communication on a matter of public interest

[72] The other two defences raised by the appellant, for the purpose of this appeal, can be addressed briefly. Again, the question at this stage is only whether there is reason to believe that the defences will not succeed. Although the elements of the defences are distinct, both are defeated by malice: Blair v. Ford, 2021 ONCA 841, at para. 45, Torstar, at para. 125. Malice has both subjective and objective aspects: WIC Radio, at para. 28. It may be established by reckless disregard for, or indifference to, the truth, spite or ill-will, or any indirect or ulterior motive: CUPW, at para. 31, citing Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at p. 1189; Bent, at para. 136. In CUPW, it was sufficient that the evidence might support a finding of malice, based on the presence of an ulterior motive or recklessness about the truth of underlying facts, or based on an inference from the appellants’ conduct: at para. 32.

[73] The appellants submit that there is no evidence of malice in this case. I disagree. While it is premature to determine the question conclusively, even at this preliminary stage, there is evidence to support such a finding based on the presence of an ulterior motive: to intimidate the respondents into paying their claims. There is also evidence of recklessness about the truth of the underlying facts, namely that the orders were under appeal and subject to an ongoing legal process. A key piece of evidence is NSN’s letter of September 25, 2021, that preceded and threatened the October 2 rally, which was addressed to Randeep Sandhu and stated, in part:

You have not paid any of these drivers a cent of what they are owed. Your behaviour is outrageous and shameful. No worker should have to spend extra time and money filing legal claims just to receive their hard-earned pay. We demand that you pay these drivers the above amounts by October 1, 2021. If you refuse, members of the NSN will organize public protests to demand all these drivers be paid. We will expose you and Cargo County Group to other truck drivers, to the Panjabi community in Peel and to the broader public across Ontario. We will also speak publicly about you and your company at our October 2 rally and share details of the drivers’ stories with all local media in attendance. [Emphasis in original.]

[74] Further, NSN’s representative confirmed that NSN knew that the appellants were involved in a legal process with Cargo County but made no inquiries to determine whether any monies were in fact owed at the time of the impugned conduct. The thrust of her evidence was that, irrespective of the status of the legal process and the true facts, NSN intended to bring pressure to bear on Cargo County using the tactics they had employed in other cases, which included calling its principal a “wage thief”.

[75] Without going into the evidence in depth, there is sufficient evidence that could support a finding of malice based on the inflammatory tone and invocation of criminality present in the impugned remarks, the evidence of an ulterior motive to embarrass, shame and intimidate the respondents into paying the appellants’ claims, and a recklessness or indifference to the truth of what was stated.

[76] Accordingly, there is reason to believe that the defences of fair comment and responsible communication on a matter of public interest will not succeed.

(b) Section 137.1(4)(b) – Weighing harm against the public interest in the expression

[77] The final stage of the analysis under s. 137.1(4) is to balance the harm to the respondents against the public interest in the appellants’ expression. Section 137.1(4)(b) requires that the plaintiff prove on a balance of probabilities that, due to the harm likely to have been or to be suffered by the plaintiff as a result of the defendant’s expression, the public interest in allowing the proceeding to continue outweighs the proceeding’s deleterious effects on expression and public participation: Hansman, at para. 59; Pointes Protection, at para. 82.

(i) Harm alleged to have been suffered and public interest in permitting the Action to continue

[78] I begin by considering the harm to the respondents that is alleged to have resulted from the appellants’ defamatory statements. A responding party has the onus to establish the existence of harm resulting from the expression. No definitive determination of harm or causation is required. The onus on a plaintiff is to “simply provide evidence for the motion judge to draw an inference of the likelihood in respect of the existence of harm and the relevant causal link”: Pointes Protection, at para. 71.

[79] Either monetary or non-monetary harm will suffice to establish the existence of harm. The harm need not be monetized or quantified. Reputational harm is also relevant to the harm inquiry even if at this stage it is not quantifiable. Defamation gives rise to a claim for general damages. The “preservation of one’s good reputation” has inherent value beyond the monetary value raised by the claim: Levant v. DeMelle, 2022 ONCA 79, at para. 18; Pointes Protection, at para. 88.

[80] While the presumption of damages flowing from defamation can establish the existence of harm, in order to succeed at the balancing stage, “a plaintiff must provide evidence that enables the judge ‘to draw an inference of likelihood’ of harm of a magnitude sufficient to outweigh the public interest in protecting the defendant’s expression”: Hansman,at para. 67, citing Pointes Protection, at para. 71 and Bent, at para. 154. Accordingly, it is necessary to consider the evidence of actual and potential harm that is available in the record: Bent, at para. 144. See also this court’s helpful discussion of the harm element of s. 137.1(4) in Park Lawn, at paras. 47-48.

[81] The appellants assert that the evidence of harm to the respondents as a result of the impugned statements is “woefully inadequate”. I disagree.

[82] The affidavit of Paweldeep Sandhu describes in some detail the harm the impugned statements and the appellants’ actions caused to Cargo County and to its owners, Randeep Sandhu and Kiranjit Sandhu. He refers to specific harm sustained by Cargo County as a result of the appellants’ actions in the fall of 2021, comparing what occurred during that period with the previous year: a significant reduction in applications for new drivers, major customers reducing their number of loads and gross revenues, the departure of a key employee, and expressions of concern from several customers to which Cargo County responded through its legal counsel.

[83] Contrary to the appellants’ assertion, this evidence contains appropriate detail as well as an explanation for how the alleged harm resulted from the appellants’ actions, and the harm described is potentially significant. And, although Paweldeep Sandhu was briefly cross-examined on his affidavit, there was no attempt to contradict, challenge, or undermine any of this evidence. The issue of the existence and extent of the harm caused to the respondents by the appellants’ expression was simply not addressed in the cross-examination.

[84] In addition to the Sandhu affidavit, the record contains other evidence from which the existence and risk of significant harm can be inferred. In this regard, it is important to observe that many of the actions of the appellants and their supporters were intended to cause harm – they were part of a campaign designed to persuade the respondents to pay the appellants’ claims by the deadline they set. In addition to the impugned defamatory statements, the “phone zaps” which occurred during business hours over a number of days, and the posting of negative reviews to Cargo County’s website, were obviously intended to interfere with the company’s business operations and to damage its reputation. As this court observed at para. 52 of Park Lawn, “it would be ironic” for the appellants to make the impugned statements in the hopes that they would convince others of the misconduct of the respondents, and then, for the purposes of the anti-SLAPP motion, to assert that they could not have had any effect on the respondents’ reputation: at para. 52.

[85] In summary, I conclude that the harm the respondents are likely to suffer and have already sustained as a result of the appellants’ expression is significant. As such there is a strong public interest in allowing the Action to proceed.

(ii) Public interest in protecting the appellants’ expression

[86] On the other side of the weighing exercise is the public interest in protecting the appellants’ expression. The term “public interest” is used differently in s. 137.1(4)(b) than in s. 137.1(3): Pointes Protection, at para. 74. Under s. 137.1(4)(b), “not just any matter of public interest will be relevant. Instead, the quality of the expression, and the motivation behind it, are relevant here”: Pointes Protection, at para. 74 (emphasis in original). It is relevant at this stage whether the expression “helps or hampers the public interest”: Pointes Protection, at para. 74. Under s. 134.1(4) the court must undertake a “qualitative consideration of the public interest in the [subject] expression”: Thorman v. McGraw, 2022 ONCA 851, 476 D.L.R. (4th) 577, at para. 30.

[87] Since defamatory statements and personal attacks are ‘very tenuously’ related to the core values which underlie s. 2(b) of the Charter, “there will be less of a public interest in protecting a statement that contains ‘gratuitous personal attacks’ and the ‘motivation behind’ the expression will be relevant to the inquiry”: Pointes Protection, at paras. 74‑75; Bent, at para. 163. While “a statement that contains deliberate falsehoods” or “gratuitous personal attacks” may be an expression that relates to a matter of public interest, the public interest in protecting that expression will be less than would have been the case had the same message been delivered without lies or vitriol: Pointes Protection, at paras. 74-75.

[88] In Thorman, where the expression involved a customer’s negative online reviews that included allegations of fraud and other disparaging descriptions following a failed home renovation project, this court observed that “[t]here is a significant difference, on the one hand, between providing others with a descriptive account of the nature and quality of services one has received – including an explanation of the reasons one is dissatisfied – and, on the other hand, calling a contractor a “fraudster” and a “scammer” and calling on others to act in concert to drive the contractor out of business”: at para. 30. The court concluded that such expression deserved “very little protection”: at para. 30.

[89] In the present case, while the impugned expression “relates to” an issue that is of public interest – the potential exploitation of vulnerable workers – its quality and nature, and the motivation behind the expression, reduce its value. As in Thorman,the expression in question addressed a topic of public interest, but the imputation of personal criminality by the appellants and their supporters, and their motivation, reduce the public interest in its protection.

[90] The appellants assert that “responsible, truthful expression on mistreatment [faced] at the hands of corporate, institutional, or otherwise powerful actors” is worthy of protection. While this is no doubt true, the expressions at issue in the Action were misleading and inflammatory, and included personal attacks and imputations of criminal conduct. The appellants’ motivation was to force Cargo County to pay their claims, bypassing the CLC process that was underway. Knowing that Cargo County disputed their claims, but was complying with the CLC process, and that the amounts due, and that were under appeal, were in the hands of the government pending the outcome of the appeal, the appellants employed “name and shame” tactics to threaten and intimidate the respondents to pay immediately.

[91] In sum, while the appellants’ expression related to a matter of public interest – Cargo County’s labour practices, and by extension the practices of other similar businesses – the appellants employed personal attacks and allegations of criminality for the purpose of obtaining payment of their claims. The quality of the appellants’ speech and their motivation lower the public interest in protecting such expression.

(iii) Weighing of the public interest

[92] Having concluded that there is compelling and uncontroverted evidence of harm to the respondents resulting from the impugned statements, and that the public interest in protecting the appellants’ expression is significantly limited by the quality of and motivation for the expression, I turn to consider whether the respondents have established that, as a result of that harm, the public interest in allowing the Action to continue outweighs its deleterious effects on expression and public participation.

[93] Conducting the weighing under s. 137.1(4)(b) is an “open-ended” exercise. It requires the court “to scrutinize what is really going on in the particular case” and to consider all relevant factors: Pointes Protection, at paras. 79-81.

[94] Whether the hallmarks or indicia of a classic SLAPP suit are present bears on the public interest weighing exercise under s. 137.1(4)(b): 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 action, and minimal or nominal damages suffered by the plaintiff: Pointes Protection, at para. 78. As Côté J. noted in Pointes Protection, at para. 80, other factors may also be considered where they are relevant, including the importance of the expression, broader or collateral effects on other expressions on matters of public interest and the potential chilling effect on future expression either by a party or by others.

[95] In the present case, the Action does not have the hallmarks of a SLAPP action. There is no history of the respondents having used litigation, or the threat of it, to silence their critics. Nor is there anything in the record that could support a suggestion that the respondents commenced the Action for a punitive or retributory purpose. The record suggests that the Action was a response to real harm, and not nominal or minimal damages. It was commenced only after the respondents’ counsel had attempted to dissuade the appellants from proceeding with their threatened actions, and only after the actions had occurred and were continuing. In other words, the Action appears to have been commenced to recover damages for real harm, and to forestall (by claiming injunctive relief) future harm.

[96] In my view, what is really going on in the present case is that, as a last resort, an Action was commenced after the respondents had attempted to prevent the expressions and conduct that was threatened, and which was intended to and did in fact cause harm to the respondents’ business and reputation. In other words, there was a valid reason for commencing the Action – to stop, and to obtain compensation for, the expressions that were made and in fact continued after the Action was commenced. As in Paul v. Madawaska Valley (Township),2022 ONCA 444, at para. 17, the public interest in the appellants’ freedom of expression must be weighed against the respondents’ interest in protecting their reputations from being attacked without impunity.

[97] In weighing the public interest considerations, I am mindful of the real and threatened harm to the reputations of Cargo County and its principals, and the appellants’ unnecessarily disparaging and personal attacks against them. While there is value in workers protesting about unfair working conditions, I see no chilling effect on future expressions about such matters if the Action proceeds. As the Supreme Court in Pointes Protection stated, the anti-SLAPP provision ensures “that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to vindicate that claim”: at para. 48. Allowing the Action to proceed would not in my view deter others from speaking out against unfair labour practices; rather it would permit the respondents to seek redress for the harm alleged to have resulted from the manner and approach the appellants employed in this particular case.

[98] I am satisfied that the respondents have established on a balance of probabilities that the likelihood of harm suffered and likely to be suffered as a result of the appellants’ expression is sufficiently serious that the public interest in permitting the Action to continue outweighs the relatively modest public interest in protecting that expression.

THE COSTS APPEAL

[99] The costs appeal can be addressed briefly.

[100] First, there is no demonstrated error in principle in how the motion judge addressed the question of entitlement to costs. He recognized that under s. 137.1(8), there is a presumption against costs in favour of a party who has successfully resisted a SLAPP motion. That subsection reads: “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”. He found that a costs award in favour of the respondents was appropriate in view of the “unique and compelling” circumstances of the case: at para. 12. In reaching that conclusion, he took into consideration: (1) the fact that, although some statements were made as part of the impugned conduct, other conduct was “designed to harm the business and owners’ reputation to circumvent the ongoing legal process through alleged trespass, intimidation, disruption and phone zaps”; and (2) the purpose of the conduct, which was to force the respondents to capitulate to the appellants’ claims, regardless of the merits of the existing legal claims they commenced: at para. 13. In my view the fact that the motion judge erred in concluding, at the threshold stage, that the Action did not arise out of expressions in the public interest, does not deprive these considerations of their importance. These factors remain relevant in the dismissal of the appeal and the motion at the s. 137.1(4) stage.

[101] A court’s ability to award costs in favour of a successful respondent to an anti-SLAPP motion is not restricted to cases where the motion was dismissed at the s. 137.1(3) stage. This court has upheld costs awards against moving parties in SLAPP appeals where the motion was dismissed after passing the s. 137.1(3) threshold. In other words, even where the court is satisfied that the proceeding arose from an expression in the public interest, there may be appropriate circumstances in which to award costs in the respondent’s favour: see e.g., Park Lawn, at para. 60; Sokoloff, at paras. 45-47; Thorman, at para. 35. Such circumstances existed in this case.

[102] Second, there is no error in, nor is any objection taken to, the quantum of costs, which is reasonable. It is within the range endorsed by this court in Park Lawn, at para. 39.

[103] Finally, and contrary to the appellants’ submission, the motion judge did not use the fact that the appellants had recourse to funds raised in a GoFundMe campaign in any improper or unreasonable way. Rather, he expressly noted that this fact “did not impact entitlement, scale, or quantum, but it simply makes the point that [the appellants] can pay a reasonable costs award, in whole or in part from other funds”: at para. 27. In other words, while he might have exercised his discretion to deny costs on account of the appellants’ limited ability to pay, this was not a factor in his decision.

DISPOSITION

[104] For these reasons I would dismiss the appeal and, although I would grant leave to appeal, I would also dismiss the costs appeal. Costs of the appeal are awarded to the respondents payable by the appellants in the agreed and inclusive amount of $17,500. No costs are sought by or against the intervener.

Released: August 16, 2023 “SEP”

“K. van Rensburg J.A.”

“I agree. S.E. Pepall J.A.”

“I agree. M.L. Benotto J.A.”

[^1]: On December 6, 2021, the Canada Industrial Relations Board varied the payment order in respect of Mr. Clair to $11,767, and otherwise dismissed the appeal. There was no other information in the record before the motion judge nor on the appeal, respecting the status of the other complaints.