Court of Appeal for Ontario
Date: 2023-09-05 Docket: C69347
Before: van Rensburg, Nordheimer and George JJ.A.
Between:
Harlan Schwartz and Red Lake Outfitters Plaintiffs (Respondents)
And
Robert Collette Defendant (Appellant)
Counsel: Jordan Lester, for the appellant No one appearing for the respondents
Heard: August 28, 2023
On appeal from the order of Justice Tracey Nieckarz of the Superior Court of Justice, dated March 22, 2021, with reasons reported at 2020 ONSC 6580 and supplementary reasons reported at 2021 ONSC 2138.
Reasons for Decision
[1] The defendant appeals from the order of the motion judge which, while striking out the majority of the claims in this action pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, allowed the claim for harassment and infliction of emotional harm to proceed. As stated by the appellant, the sole issue on this appeal is whether, on a successful motion under s. 137.1, the entire action must be dismissed or whether the court may dismiss only particular claims.
[2] The appellant is a canoeing and outdoors enthusiast. He has a particular connection to Woodland Caribou Provincial Park. The respondent, Harlan Schwartz, is the director/owner of the respondent, Red Lake Outfitters. Mr. Schwartz publicly advocates for Woodland Caribou Provincial Park to allow motorized vehicle access. The appellant thinks motorized vehicles should not be allowed in the park.
[3] The appellant has voiced his opinions online. This led to conflict with the respondent Schwartz who has also expressed his views. Eventually the respondents commenced this action against the appellant claiming damages for defamation and other relief.
[4] In her decision on the s. 137.1 motion, the motion judge held that the appellant’s statements, complained of by the respondents, were statements relating to a matter of public interest. She also concluded that the defamation claims lacked substantial merit. Finally, the motion judge found that the public interest in protecting the appellant’s expression outweighed the public interest in permitting the proceeding. Thus, the motion judge dismissed all of the claims with the exception of the claim for harassment and intentional infliction of emotional harm. With respect to that claim, the motion judge invited counsel to make further submissions. In particular, she asked counsel to make submission on whether a successful motion under s. 137.1 required the entire proceeding to be dismissed or permits the dismissal of only specific claims.
[5] In her subsequent decision, the motion judge concluded that where certain claims are separate and distinct from claims that engage s. 137.1, the court has the discretion to permit those other claims to proceed. It is from that conclusion that this appeal is taken.
[6] In our view, it is unnecessary to embark on a consideration of the broad question raised by the appellant because, on the judge’s own findings, the entire action in this case ought to have been dismissed. The motion judge concluded in her original reasons, and repeated in her supplementary reasons, that “the entire action is motivated by a desire to silence public interest expression by the Defendant” (original emphasis). Given that finding, the entire proceeding ought to have been dismissed because it fell within the very rationale for the existence of the section, that is, to protect public interest expression and to deter litigation that seeks to prevent that expression.
[7] In so concluding, we wish to make it clear that we are not deciding whether, on a successful s. 137.1 motion, the court has the authority to delineate between claims that are found to be subject to the section and ones that are not. We leave that question to be decided in another case where it is fully and completely presented.
[8] The appeal is allowed. The order below is set aside and in its place an order will go dismissing the entire action. The appellant is entitled to his costs of the appeal fixed in the amount of $8,500, inclusive of disbursements and HST. We would not disturb the award of costs made by the motion judge.
“K. van Rensburg J.A.”
“I.V.B. Nordheimer J.A.”