Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20240802

DOCKET: COA-22-CV-0306

Miller, Harvison Young and Favreau JJ.A.

BETWEEN

40 Days for Life Plaintiff (Respondent)

and

Brooke Dietrich, John Doe, Jane Doe and Persons Unknown Defendants (Appellant)

Counsel: Andrew Bernstein, Sarah Whitmore, Julie Lowenstein and Anna Matas, for the appellant Philip H. Horgan and Raphael T.R. Fernandes, for the respondent Zohar R. Levy, Pujan Modi and Rachel Laurion, for the intervener The Canadian Civil Liberties Association

Heard: July 18, 2023

On appeal from the order of Justice Byrdena MacNeil of the Superior Court of Justice, dated September 30, 2022, with reasons reported at 2022 ONSC 5588.

By the Court:

I. Overview

[1] The parties to this action disagree profoundly about the ethics of abortion and abortion protesting.

[2] 40 Days for Life (“40 Days”) advocates for an end to abortion. As part of its efforts, it organizes semi-annual prayer vigils outside of hospitals that provide abortions. Brooke Dietrich is a person with a history of engagement in social justice issues, who strongly believes in protecting access to abortion.

[3] In October of 2021, when 40 Days was organizing its fall prayer vigil, Ms. Dietrich posted a series of fourteen videos on TikTok that are the focus of this litigation. In four of the videos, she encouraged people to sign up for 40 Days’ vigils and to then not show up. In several other videos, she made negative comments about 40 Days and its activities, including by stating that 40 Days lied, spread “false health information”, and engaged in “fearmongering” and harassment. In two additional videos, Ms. Dietrich posted contact information for two of 40 Days’ employees. In another video, she encouraged people to abandon virtual shopping carts with merchandise on 40 Days’ website.

[4] 40 Days alleges that its website and prayer vigils were subsequently disrupted by false sign-ups and that its volunteers and employees were harassed through online communications and phone calls. It says its ability to schedule its volunteers was disrupted and it had to dedicate time and money to restore the functionality of its online scheduling system. 40 Days obtained an injunction against Ms. Dietrich and other unnamed defendants and brought proceedings seeking damages for defamation, internet harassment, fraud, breach of contract, inducing breach of contract, and civil conspiracy.

[5] Ms. Dietrich then brought a motion to have the proceeding dismissed under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”). The motion judge dismissed the motion and concluded that there were grounds to believe that the proceeding had substantial merit, that the appellant had no valid defence, and that the public interest in permitting the proceeding to continue outweighed the public interest in protecting Ms. Dietrich’s expression.

[6] The appellant contests these findings. In essence, she asks this court to consider the motion afresh. That is not the role of this court. The appellant’s task is to establish a basis that would permit this court to intervene. She has not done so, and accordingly we dismiss the appeal.

II. The parties

[7] In her reasons, the motion judge described 40 Days and its activities as follows:

40 Days is an American, Texas-based non-profit corporation that engages the public and advocates for an end to abortion. It has nine or more locations in Ontario. Among its activities are 40-day prayer vigils held twice a year, in the Fall and the Spring. These vigils are intended to present “a constant witness”, 12 or 24 hours a day, for 40 days. Each vigil location is run by a group of local volunteers, coordinated by 40 Days.

[8] The motion judge described Ms. Dietrich and her activities as follows:

Ms. Dietrich is an individual with a history of engagement in social justice issues, including menstrual health, reproductive freedom, and pro-choice rights. She believes that access to abortion services is a fundamental freedom. She has a Master’s degree in social justice and community engagement. She uses the social media platform TikTok to express her views on issues that are important to her.

III. Background

[9] 40 Days’ claim against Ms. Dietrich focuses on a series of TikTok videos related to abortion protesting, or 40 Days, or both, that Ms. Dietrich posted between October 2-29, 2021.

[10] There were originally fourteen videos at issue, which the motion judge categorized and described in detail. She used the following four categories to describe the videos: (1) false sign-ups, (2) defamatory, (3) posting of contact information, and (4) shopping cart abandonment. The motion judge numbered each video and described them in detail.

[11] Videos #1 to #4 were categorized as false sign-ups videos and were described as follows:

Video #1 – Published October 2, 2021 – This 39 second video shows Ms. Dietrich in the forefront with the 40 Days website in the background. There is a “trending audio” applied to the video. Ms. Dietrich demonstrates a false sign-up and invites “TikTok Canada” to sign-up for the 40 Days vigil shifts and then not show up. She ends the video with the comments “because no uterus, no opinions” and “keep your religion off of my body”. The caption below the video says: “Hey, #CanadaTikTok, 40 Days, an #antichoice group has officially started their campaigns across the country to protest abortion services. Please do your thing. #theassignment”. (Video #1 was shared by two other TikTok users who also encouraged TikTok viewers to participate in false sign-ups on 40 Days’ website.)

Video #2 – Published October 11, 2021 – This is a 7 second video featuring a trending effect called “green screen eyes, nose and mouth” by which two eyes and a pair of lips are animated over-top of 40 Days for Life’s website homepage. A trending audio effect was applied that says the words: “First of all, ew. Second of all, ew.” There is also text on the screen: “ POV: You remember that 40 Days For Life is still asking for people to sign up to protest abortion. ” The video has the caption: “Wouldn’t it be a shame if we all happened to be busy the days we signed up for? #ProChoice #KeepYourReligionOffMyBody #PenningtonsFreedom #keepitsimple”.

Video #3 – Published October 13, 2021 – This 12 second video features Ms. Dietrich mouthing along to a trending audio called “Bye bye”, which includes the sound of laughter followed by the words “bye-bye” with her waving to the camera. The words typed on the screen read: “ Me when over 300,000 of you help sign up for anti-choice protest shifts that you have no plans on showing up to so it messes with 40 Days For Life’s schedule. ” The caption below the video says: “What? I forgot I had to teach my fish how to swim. Send to a friend to remind them to sign up! #ByeBye #AbortionIsHealthcare #keepitsimple #halloween”.

Video #4 – Published October 19, 2021 – This is an 11 second video that shows the 40 Days website as the background to a video of Ms. Dietrich clapping and dancing. She applied a trending audio of “Holy Spirit, activate. Holy Spirit, activate”. The words on the video screen read: “ Me summoning the internet to sign up for anti-abortion shifts that they don’t show up to so it ruins 40 Days For Life goal to fearmonger people out of getting abortions. ” The caption below the video reads: “Thinking about doing a live where I talk through a bunch of birth control options and speak through the pros/cons. Would folks join? #ProChoice #HolySpirit #MakeItCinematic #ReproductiveJustice #HumanRights.”

[12] Videos #4 to #11 were categorized as defamatory and were described as follows:

Video #4 has been summarized above…

Video #5 – Published October 6, 2021 – This is a 9 second video. In the background is 40 Days’ website. Ms. Dietrich is seen with her hand in the shape of a sock puppet and the trending audio “Naughty Wackus Bonkus” plays: “What do you think, Wackus Bonkus? Kill them. You naughty Wackus Bonkus.” The screen shows Ms. Dietrich’s computer screen while she navigates to the 40 Days Facebook page and uses the Facebook “report” feature to report the page as harassing. The caption accompanying the video reads: “Harassing folks who are making private healthcare decisions by standing in front of hospitals is not okay. #ProChoice #LiveLaughLove #KeepYourReligionOffMyBody #greenscreen #wackasbonkas”.

Video #6 – Published October 10, 2021 – This video is 9 seconds in length and shows Ms. Dietrich’s phone while she navigates to 40 Days’ Instagram page and then uses Instagram’s “report” feature to report the account for false health information. She applied the trending audio called “mrblocku says no more fortnite”. She mouths the words of the audio and then uses her hand to “hit” the screen. Below the video are the words: “ Fearmongering personal healthcare decisions on Instagram is not okay. #NoMoreFortnite #ProChoice #KeepYourReligionOffMyBody #ReproductiveJustice #keepitsimple ”.

Video #7 – Published October 16, 2021 – In this 15 second video, the top half of Ms. Dietrich’s face appears upside down at the upper part of the screen, peering downwards, with a trending audio playing. The words on screen read: “ If this TikTok gets 20k likes by 10/22 I will dress up in a clown suit to counterprotest the anti-choicers on 10/29 .” In smaller print is written: “ I really hope it’s a bones day. ” The caption below the video reads: “Obviously I will counterprotest regardless but figured I would up the stakes a little bit. Hopefully it’s a bones day. #ProChoice #PantryDayDance #DogDays #BonesDay #AbortionIsHealthcare”.

Video #8 – Published October 18, 2021 – This is a 6 second video. It depicts protesters gathering outside, at the side of a road, and applies a trending audio. Closer up there is a sign that reads: “Pro Choice and Proud”. The words on the screen read: “ When it’s a ‘peaceful vigil’ but they spend the entire time yelling at cars turning into the hospital. ” The words “ My sign ^^ ” and “ Anti-choice folks ^^ ” are also seen. The caption below the video reads: “How does anyone think this is effective? If anything it’s an attempt to fearmonger and force your opinion onto someone else’s body. #WhatDoesItMean #ProChoice.”

Video #9 – Published October 21, 2021 – This video is 7 seconds long. Ms Dietrich is featured with the “About Overview” page from 40 Days’ website in the background, which is entitled “Helping to end the injustice of abortion”. Ms. Dietrich applied a trending audio and shows herself mouthing along to the words: “What would you do if, when ... I don’t know what you mean there, babes.” The words on the screen read: “ Trying to read 40 days for Life (Anti-choice)’s website, ‘mission statement’, and ‘facts’ but it’s full of lies and fake testimonies. ” The caption below the video reads: “Your homework: Find a local 40 Days For Life Facebook group and report it as False Health Information! #MakeItCinematic #Babes #ReproductiveJustice #ProChoice #HumanRights”.

Video #10 – Published October 23, 2021 – This is a 10 second video. Ms. Dietrich is featured with a general stock photo of an anti-abortion protest scene in the background. A trending audio is applied from a song called “Face Off” and Ms. Dietrich is shown dancing and mouthing the words to the song. The words displayed on the screen are: “ Anti-Choice folks thinking that standing in front of a hospital accomplishes anything but harassment. ” The caption below the video reads: “#itsaboutdriveitaboutpower over people’s body and their rights to bodily autonomy. #ProChoice #ReproductiveJustice #prochoicetiktok”.

Video #11 – Published October 29, 2021 – This 8 second video features a trending audio called “Wonders of Magic”. Ms. Dietrich is seen raising her eyebrows, tilting her head, and smiling. The words on the screen read: “ What goes through my head when we all report 40 Days for Life (an Anti-Choice) group on Facebook for false health information.” The caption below the video reads: “I dare you. #ProChoice #AbortionIsHealthcare #ProChoiceAndProud #ReproductiveJustice”.

[13] Videos #12 and #13 were categorized as the posting of contact information and were described as follows:

Video #12 – Published October 3, 2021 – This is a 32 second video wherein Ms. Dietrich talks to her viewers using a background displaying the 40 Days calendar webpage containing the following message from Mr. Germann: “There are hackers signing up fake times in the calendar. If you want to know whether your proposed time is good, text me [ phone number omitted ] and I can let you know. Blessings, Steve”. He includes his cell phone number. In the video, Ms. Dietrich states: “So guys, I, uh, think it’s working. I just got this message from a friend. … [She reads out the notice from Mr. Germann.] … I think we should give Steve a call. I don’t know. I’m just saying. He might be bored. Steve, I hope you’re doing well. TikTok, please do your thing. Hypothetically.” The caption below the video reads: “Reply to @growingandgrounded #greenscreenhey #Tiktok do your thing! I think Steve is worried we won’t be showing up to our shifts. #ProChoice #ProChoiceAndProud #NoUterusNoOpinion”.

Video #13 – Published October 6, 2021 – This video is 1’14” in length. Ms. Dietrich is featured in the forefront. In the background is the cease-and-desist email from Ms. Richter. Ms. Dietrich is heard saying: “Stop scrolling. I need your help, TikTok. 40 Days for Life has sent an email to my work … [She reads out the cease-and-desist letter.] … So I would love if you could signal boost the heck out of this. And Legal TikTok, if you have any advice for me, please let me know. Um. Keep doing what you’re doing. Don’t let these people protest outside of hospitals who are performing lifesaving services. Enough is enough.” The caption below the video reads: “STOP SCROLLING. 40 Days For Life is threatening immediate legal action because of our work. Please tag, comment, share, repeat watch this! #ProChoice #ProChoiceAndProud #KeepYourReligionOffMyBody #LiveLaughLove #FYP #GettingSued”.

[14] Video #14 was categorized as shopping cart abandonment and was described as follows:

Video #14 – Published October 4, 2021 – This 7 second video features Ms. Dietrich in the forefront with the background showing the 40 Days online store. A trending audio clip is used for the video and Ms. Dietrich is seen mouthing along to the words: “ I don’t consider myself to be a particularly ethical person. But I am fair. ” This text is also printed on the screen. $46,500.00 in value of 40 Days’ products in a shopping cart is displayed behind her image. The caption accompanying the video reads: “Me when I stock my cart full of the 40 Days For Life Merch and press check out when I have no intentions on placing the order. #keepyourreligionoutofmyuterus #keepyourreligionoffmybody #idontconsidermyself”.

[15] On the motion, Ms. Dietrich’s motivation and ultimate goal were contested. She claimed that her digital activism was a matter of trying to “send a message” to 40 Days that it lacked support within the community. The motion judge rejected this characterization as inconsistent with the evidentiary record before her. With respect to several of the TikTok videos, the motion judge found that Ms. Dietrich’s intention was not to send a message to 40 Days, but to interfere with its operations – if not to stop the vigils altogether, to at least make them less effective.

[16] The motion judge’s findings of the tortious nature of the videos are explained below.

IV. Procedural history

[17] Ms. Dietrich inadvertently revealed her name in one of her videos, enabling 40 Days to identify her as the source of the TikTok videos. It brought the underlying action against her for defamation, internet harassment, fraud, breach of contract, inducing breach of contract, and civil conspiracy. The action also named as defendants unknown persons alleged to have acted in concert with her.

[18] 40 Days obtained an interlocutory injunction prohibiting Ms. Dietrich from engaging in false sign-ups to 40 Days’ activities, from electronic harassment, sabotage, or interference with 40 Days’ activities, from publishing the contact information of 40 Days’ employees and volunteers, and from encouraging anyone else to do the same. The injunction did not enjoin her from continuing to post about abortion or abortion protesting. The injunction was later quashed on the basis that there was no indication that Ms. Dietrich sought to continue the impugned activity: 40 Days for Life v. Dietrich, 2023 ONSC 5879.

[19] Ms. Dietrich brought a motion to have the action dismissed as against her under s. 137.1 of the CJA and for damages against 40 Days for causing her severe anxiety. The motion was dismissed, and Ms. Dietrich has appealed to this court.

V. The statutory provision

[20] The relevant provision governing Ms. Dietrich’s motion under the CJA is set out below.

137.1(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.

(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.

VI. The reasons below

[21] The motion judge denied Ms. Dietrich’s s. 137.1 motion, finding that the underlying action related to a matter of public interest, that some of 40 Days’ claims had substantial merit and no valid defence, and that the harm suffered by 40 Days from Ms. Dietrich’s expression was sufficiently serious that the public interest in permitting the proceeding to continue outweighed the public interest in protecting that expression.

(a) The Threshold Question – s. 137.1(3)

[22] On the threshold question of whether the proceeding arose from expression “that relates to a matter of public interest”, 40 Days had argued on the motion that the only message relayed in the videos was the invitation to disrupt and sabotage 40 Days, and that there is no public interest in such expression. Ms. Dietrich argued that the videos engaged in debate on reproductive justice and anti-abortion protesting outside of hospitals.

[23] The motion judge held that this threshold burden was met. 40 Days does not contest this finding on appeal.

(b) The Merits-Based Hurdle – s. 137.1(4)(a)

[24] At the merits-based stage, the motion judge concluded that the defamation, internet harassment, and conspiracy claims had substantial merit, and that 40 Days had met its burden of establishing that Ms. Dietrich had no valid defence to these claims. The motion judge did, however, dismiss 40 Days’ claims based in contract and fraud. 40 Days does not appeal those findings, and they are not addressed below.

(i) Defamation

[25] The motion judge held that five of the videos, namely videos #4, 5, 6, 9, and 11, were potentially defamatory because they referred to 40 Days as “fearmongering” and “harassing” and alleged that its website contained “lies and fake testimonies” and “false health information”. She found that these statements would tend to lower the reputation of 40 Days in the eyes of a reasonable person. She did not, however, accept that Ms. Dietrich had defamed 40 Days by reporting it to Facebook and Instagram for harassment or posting false health information.

[26] Ms. Dietrich raised defences of truth and fair comment. The motion judge concluded that 40 Days had raised significant questions about the validity of these defences and, in particular, that it raised an arguable case that Ms. Dietrich may have communicated in a malicious or reckless manner, which would defeat the defences of truth and fair comment. The motion judge concluded that 40 Days had met its burden with respect to the merits of its defamation claim.

(ii) Internet harassment

[27] 40 Days argued that the videos encouraging thousands of others to participate in false sign-ups, shopping cart abandonment, and online harassment of at least eight individuals associated with the organization constituted a campaign to “harass, harry, and molest” amounting to the tort of internet harassment proposed in cases such as Caplan v. Atas, 2021 ONSC 670, 71 C.C.L.T. (4th) 36 and 385277 Ontario Ltd. v. Gold, 2021 ONSC 4717.

[28] Ms. Dietrich advanced two defences to the claim of internet harassment: first, that a corporation cannot sue for internet harassment as it cannot suffer fear, anxiety, emotional upset, or harm to dignity; and second, that her conduct did not reach the threshold of outrageous conduct set out for the tort in Caplan, at paras. 168-171.

[29] The motion judge concluded that there were grounds to believe that some of the videos and accompanying text “served to encourage and rally others to do acts to negatively impact 40 Days’ activities.” She concluded that the claim of internet harassment had substantial merit, and that the current state of the tort did not rule out a claim by a corporation.

(iii) Civil conspiracy

Predominant purpose conspiracy

[30] The motion judge found there to be evidence showing that Ms. Dietrich and others worked on a co-ordinated basis to engage in false sign-ups, shopping cart abandonment, and to report 40 Days to Facebook and Instagram for posting false health information and harassing content. She found that the predominant purpose of this coordinated effort was to injure 40 Days by impeding its ability to organize its vigils and its ability to use its web-based sign-up calendar as it normally would.

Unlawful conduct conspiracy

[31] The motion judge also found, relying on her conclusion that 40 Days had met its onus with respect to the claim of internet harassment, that 40 Days had established some evidence that Ms. Dietrich had some form of agreement with others to thereby injure 40 Days, establishing unlawful conduct conspiracy via an agreement to engage in what amounted to internet harassment.

(c) The Public Interest Hurdle – s. 137.1(4)(b)

[32] Having concluded that 40 Days met its onus with respect to some of the alleged torts, the motion judge had to address the public interest question: whether the harm suffered by 40 Days as a result of Ms. Dietrich’s expression is sufficiently serious that the public interest in permitting 40 Days to try and hold Ms. Dietrich and others responsible outweighs the public interest in protecting the expression made by Ms. Dietrich.

[33] The motion judge accepted that there was credible evidence that 40 Days had suffered some harm as a result of the TikTok videos and the campaign that followed. In particular, she found there was credible evidence that the false sign‑ups caused significant disruption to 40 Days’ campaigns and that the harm was the result of the TikTok videos and the actions they encouraged.

[34] With respect to the public interest in protecting Ms. Dietrich’s expression in the TikTok videos, the motion judge found Ms. Dietrich’s expression to be of comparatively low value. The heart of her analysis is in the following two paragraphs:

It is beyond argument that there is a significant public interest in the issues of reproductive justice and abortion. 40 Days did not object to Ms. Dietrich’s statements about these issues or her position on the appropriateness of anti-abortion groups protesting outside of abortion facilities. The primary purpose of 40 Days commencing its action does not appear to be to silence Ms. Dietrich or the other Defendants on their pro-choice views. Rather, the main motivation of 40 Days appears to be to protect its ability to organize its prayer vigils without undue disruption, to carry on its organizational activities without undue harassment, and to protect its reputation. 40 Days identified particular videos that it alleges encouraged online campaigns against it and identified specific statements that it asserts defamed it. The weighing exercise involves a consideration of whether those expressions deserve protection.

While Ms. Dietrich’s motivation for expressing herself through the impugned TikTok videos may have started out as being part of the debate on whether anti-abortion protesting should be permitted near hospitals providing abortion services, some of her efforts appear to have subsequently become more focussed on actively disrupting and impeding 40 Days in its anti-abortion activities. I do not find that there is significant public interest in protecting that kind of expression.

[35] The motion judge concluded that the action was brought for a bona fide purpose and the harm suffered by 40 Days was sufficiently serious that the public interest in allowing 40 Days to vindicate its legal rights outweighed the public interest in protecting the expression. The proceeding could thus proceed on the causes of action specified.

[36] The motion judge further found that, given her conclusion that the action should not be dismissed, Ms. Dietrich was not entitled to damages under s. 137.1(9) of the CJA.

VII. The Grounds of Appeal

[37] The grounds of appeal raised by Ms. Dietrich can be grouped into three categories:

1. Errors in concluding that the claims of defamation, internet harassment, and conspiracy have substantial merit.
2. Errors in assessing the value of Ms. Dietrich’s expression; and
3. Errors in weighing the public interest in allowing the action to proceed.

VIII. Analysis

[38] Section 137.1 is intended to provide a remedy against a particular form of abuse of process: “the practice of initiating lawsuits not to vindicate bona fide claims, but rather to deter a party from expressing a position on a matter of public interest or otherwise participating in public affairs”: Volpe v. Wong-Tam, 2023 ONCA 680, 487 D.L.R. (4th) 158, at para. 2, leave to appeal refused, [2023] S.C.C.A. No. 516. It is intended to weed out strategic or abusive claims at an early stage.

[39] Accordingly, the burdens s. 137.1 imposes on plaintiffs are unlike those that plaintiffs are required to satisfy in the trial of an action. As this court explained in Mondal v. Kirkconnell, 2023 ONCA 523, 485 D.L.R. (4th) 90, at the merits-based hurdle “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”: at para. 30. Similarly, at the public interest hurdle “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”: Mondal, at para. 30, citing 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at paras. 70-71.

[40] Ms. Dietrich seeks to end this litigation, arguing that the motion judge made several reversible errors at each stage of the s. 137.1 analysis, and that once those errors are corrected, the result should be a dismissal of the action and an award of costs and damages in her favour.

[41] The motion judge’s determination that the s. 137.1 motion should be dismissed is entitled to deference on appeal, absent an error of law or a palpable and overriding error of mixed fact and law: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 77.

[42] In the analysis that follows, we address Ms. Dietrich’s arguments with respect to the merits of the causes of action, followed by a discussion of the motion judge’s public interest balancing.

(a) The Merits-Based Hurdle – s. 137.1(4)(a)

[43] The merits-based hurdle is a preliminary assessment of the claims advanced and the defences to them. It is intended to provide an overall assessment of the prospects of success of the action: Pointes, at para. 59. As the motion judge noted, the respondent bears the onus of establishing that there are “grounds to believe” that the proceeding has substantial merit, and that the defendant has no valid defence. This court has on several occasions cautioned against setting the bar higher at the merits-based hurdle than s. 137.1 requires, but it bears repeating: the plaintiff is not required to establish that the defendant has no valid defence, only that there are grounds to believe that there is no valid defence. The standard is less than a balance of probabilities. This burden is satisfied where there is a basis in the record and the law for concluding that the defences asserted will not succeed: Mondal, at paras. 50-51; Bent, at para. 103; and 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.

[44] As explained below, we are satisfied that the motion judge made no error in reaching the conclusion that 40 Days had established grounds to believe that the proceeding has substantial merit and that there are no valid defences with respect to conspiracy and defamation.

[45] It should be noted that a s. 137.1 motion is brought with respect to a proceeding as a whole against a party, and not with respect to the particular causes of action that are advanced in a proceeding: 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, 485 D.L.R. (4th) 551, at para. 57, leave to appeal refused, [2023] S.C.C.A. No. 432. A s. 137.1 motion is not analogous to a motion for partial summary judgment. Either the proceeding as a whole against a party is an abuse of process or it is not. If the motion succeeds, the entire action falls. If the motion fails, the entire action proceeds and the various causes of action will fall to be assessed by the trial judge.

[46] Most often, a s. 137.1 motion is brought with respect to a free-standing defamation claim. However, in some cases, such as this one, several causes of action are combined. This case is unusual in that the expressions that form the basis of the defamation claim are not co-extensive with the expressions that ground the other claims.

[47] Therefore, in deciding whether the motion judge erred in dismissing the motion, it is not necessary to address her analysis of each cause of action in the merits-based hurdle before turning to her analysis of the public interest weighing. It is only necessary to address separate causes of action to the extent that they arise from different expressions. Thus, in this appeal, in order to bring all of the impugned statements into the analysis, it is necessary to consider the motion judge’s analysis of the defamation claim and one or other of the conspiracy claim and internet harassment claims, but not both.

(i) Defamation

[48] The appellant challenges the motion judge’s findings that there were grounds to believe 40 Days’ defamation claim had substantial merit with respect to five videos in which Ms. Dietrich alleges that 40 Days engages in “fearmongering” and “harassment” and publishes “lies and fake testimonies” and “false health information”.

[49] Ms. Dietrich’s argument is, in essence, that her statements had a factual foundation, that her beliefs were honestly held, and that 40 Days did not satisfy its burden of establishing grounds to believe that she was motivated by the malice needed to negate the defence of honest belief. She argues that the motion judge made a legal error in not finding that her honest, subjective belief in the truth of what she was saying about 40 Days defeated the allegation that she was motivated by malice.

[50] Absent legal error, the motion judge’s characterization of the evidence is entitled to deference. In several places in her reasons – not only in the section specifically addressing defamation – the motion judge addressed Ms. Dietrich’s motivation and found sufficient evidence on the record to establish grounds to believe that Ms. Dietrich’s predominant purpose in making a number of her expressions was to injure or punish 40 Days. In characterizing the allegedly defamatory statements, the motion judge referenced Ms. Dietrich’s statements exhorting others to action: “so it messes with 40 Days for Life’s schedule”; “so it ruins 40 Days for Life goal to fearmonger”; “TikTok, please do your thing”; “don’t let these people protest outside of hospitals”; and “enough is enough”.

[51] Although Ms. Dietrich presents this ground of appeal as engaging errors of law, it is a challenge to the motion judge’s findings as to whether there were grounds to believe that Ms. Dietrich’s expression was actuated by malice. That finding is reviewable on a deferential standard, requiring a palpable and overriding error for this court to intervene. However, the motion judge’s finding is based in the record before her, and there is no ground for appellate intervention.

[52] Having found that the motion judge did not err in finding that 40 Days had satisfied its onus with respect to the defamation claim, it is sufficient to proceed to the public interest weighing hurdle. However, given that the conspiracy and internet harassment causes of action are based on different expressions, it is advisable to address the motion judge’s analysis of the other causes of action in order to adequately set the stage for the public interest weighing analysis. As explained below, an analysis of the conspiracy cause of action will be sufficient and, at this stage, detailed consideration of the internet harassment cause of action is not required.

(ii) Civil conspiracy

[53] The motion judge found that 40 Days had met its onus of establishing grounds to believe that the predominant purpose conspiracy and unlawful means conspiracy claims had substantial merit and that there were no valid defences. Ms. Dietrich argues that the motion judge erred, primarily on the basis that (1) the motion judge did not address the damages said to have been suffered by 40 Days, which is an essential element of the tort of conspiracy; and (2) there was no unlawful conduct to ground the unlawful act conspiracy.

[54] Given that 40 Days relies on internet harassment to establish the existence of unlawful conduct, an analysis of the unlawful conduct conspiracy claim, which is not strictly necessary for the purposes of this motion, should be postponed until the trial.

[55] With respect to predominant purpose conspiracy, the motion judge did not make the errors complained of. She correctly stated the legal test, acknowledging the need to prove damages.

[56] The motion judge made no error in finding grounds to believe that the videos were intended to enlist the help of others in disrupting the workings of 40 Days. This goal was to be achieved through interference with its website and harassment of its employees and volunteers. Whether Ms. Dietrich personally harassed 40 Day’s employees or volunteers, the record provides grounds to believe that she made her videos with the intention that others would be encouraged to do so. The motion judge relied on statements in the videos prompting others to action, such as: “Me summoning the internet to sign up for anti-abortion shifts that they don’t show up to so it ruins 40 Days For Life goal to fearmonger people out of getting abortions”; “Tiktok do your thing! I think Steve is worried we won’t be showing up to our shifts”; and “I think we should give Steve a call”.

[57] Although the motion judge’s reasons appear conclusory on the point of damages – simply stating that “40 Days has provided sufficient evidence of injury or harm suffered as a result” and “[r]egarding injury, I find that there is a real prospect that 40 Days will succeed in satisfying this element at trial” – the bases of these conclusions are apparent from several other passages in her reasons.

[58] Throughout her reasons, the motion judge noted the damages that resulted from those said to have acted in response to Ms. Dietrich’s expressions: loss of ability to optimally coordinate volunteers as a result of the false sign-ups; the cost of IT security enhancements to protect against the false sign-ups; the harassment experienced by employees who were doxed by Ms. Dietrich; 40 Days’ inability to use its website as it normally would; its quantifiable value of staff time dealing with the disruptions; and its volunteers’ alarm and distress at harassment. She noted that six of nine Canadian locations for vigils reported “significant” disruption. Fewer people attended the vigils than 40 Days had projected as a result of the false sign‑ups.

[59] It was open to the motion judge to find that evidence of these injuries was sufficient for there to be a reasonable prospect of success at trial. Staff costs, for example, have been found to constitute adequate damages for the tort of conspiracy: British Columbia Recreation and Parks Association v. Zakharia, 2015 BCSC 1650, at para. 96.

(iii) Internet harassment

[60] Given that 40 Days has met its onus to satisfy the merits-based hurdle with respect to both the defamation claim and the conspiracy claim, it is not necessary to address the internet harassment claim to proceed to the public interest hurdle. Rather, its viability is to be determined at trial. It would also be unwise to do so in the present circumstances. Internet harassment has not, to date, been recognized as a tort by this court. It would be inadvisable to pronounce on its application, its elements, or – more fundamentally – its validity, in the context of this appeal, where it is not necessary to do so.

(b) The Public Interest Hurdle – s. 137.1(4)(b)

[61] The final step in the s. 137.1 analysis is the determination of whether the harm likely to have been suffered by 40 Days as a result of Ms. Dietrich’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[62] This final weighing is the crux of the analysis under s. 137.1: Pointes, at para. 18. It is well established that even technically meritorious claims may be dismissed at this stage if the public interest in protecting the expression that gives rise to the proceeding outweighs the public interest in allowing the proceeding to continue: Pointes, at para. 62; The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381, leave to appeal refused, [2023] S.C.C.A. No. 337. This weighing exercise is guided by “proportionality as the paramount consideration in determining whether a lawsuit should be dismissed” and is meant to provide motion judges with a “robust backstop to protect freedom of expression”: Pointes, at paras. 53 and 63.

[63] Ms. Dietrich argues that what is really going on in this litigation is that a well‑funded adversary is using litigation to silence a young graduate student who successfully used TikTok to counter-protest its activities. She argues that this is the type of scenario that s. 137.1 is intended to prevent, and, in concluding otherwise, the motion judge’s weighing analysis suffered from several errors, entitling this court to conduct the analysis afresh. In particular, the motion judge is said to have erred: (1) in her assessment of the harm suffered by 40 Days; (2) in her assessment of the value of Ms. Dietrich’s expression; and (3) in the conclusion that the former outweighed the latter.

[64] In commencing this analysis, it is important to keep in mind again that public interest weighing is a task assigned to the motion judge and, absent reviewable error, it is not the place of this court to reweigh: Bent, at para. 77.

(i) The public interest in allowing the action to continue – the harm to 40 Days

[65] The first component of the public interest weighing exercise is to assess the public interest in allowing the action to continue. That is, the public interest in allowing an aggrieved party who has established a prima facie case that its legal rights have been infringed to vindicate those rights. One aspect of this analysis is assessing, on a very preliminary basis, the nature and extent of the harm suffered.

[66] As the Supreme Court noted in Neufeld v. Hansman, 2023 SCC 14, 481 D.L.R. (4th) 218: “to succeed on the weighing exercise, 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…. Presumed general damages are insufficient for this purpose, as are bare assertions of harm”: at para. 67. However, “no definitive determination of harm or causation is required”: Pointes, at para. 71. Importantly as well, “there is no threshold requirement for the harm to be sufficiently worthy of consideration… the magnitude of the harm simply adds weight to one side of the weighing exercise”: Pointes, at para. 70.

[67] In this case, Ms. Dietrich argues that 40 Days did not present evidence that would enable the motion judge to draw an inference of a likelihood that it had suffered any specific harm, and that the motion judge erred in finding to the contrary.

[68] Although the motion judge faithfully reproduced the submissions made by the parties, there is little analysis at this stage of the reasons of the parties’ respective arguments concerning the harm to 40 Days.

[69] The motion judge concluded that 40 Days’ evidence had established the required inference that it had suffered some measure of loss as a result of Ms. Dietrich’s conduct. She identified damages from 40 Days’ lost ability to optimally coordinate volunteers; the cost of IT security enhancements; the harassment experienced by employees; a brief inability of 40 Days to use its website to create mailing lists and organize vigils; its loss of staff time; its volunteers’ alarm and distress at harassment; and reputational harm to 40 Days. Taken together, the motion judge found that there was credible evidence that 40 Days “has suffered some harm as a result of the impugned TikTok videos and the related campaigns.”

[70] Although the motion judge did not expressly set out at this part of her reasons the evidence that brought her to this conclusion, her reasoning process is nevertheless clear when her reasons are read as a whole. The respondent was only required to provide evidence that permitted the court “to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link”: Pointes, at para. 71. The motion judge found that this had been done, noting that though false sign-ups had occurred in the past, they increased dramatically following the videos and that there were far more new accounts made on 40 Days’ website in the days following Ms. Dietrich’s videos and many were for the purposes of the false sign-ups. The motion judge made no error in concluding that 40 Days had met its onus concerning causation.

(ii) The public interest in protecting expression – the value of Ms. Dietrich’s expression

[71] Unlike the threshold analysis, where the question was simply whether the expression was related to a matter of public interest, at this stage it is necessary to evaluate the expression’s quality and the motivation behind it: Pointes, at para. 74. In her factum, supplementary factum, and in oral argument, Ms. Dietrich offered various formulations of the errors the motion judge is said to have made concerning the value of her expression. The core of all of these submissions is that the motion judge did not fully understand the context in which the expression was made and so she failed to appreciate the social value of Ms. Dietrich’s TikTok videos. To rightly value her expression, the motion judge needed to understand the negative impact of 40 Days’ vigils and the role the TikTok videos played in protecting others from harm. Ms. Dietrich relies on Neufeld, which held that the public interest in counter-speech is high because it facilitates the “open exchange of ideas” thereby “unlocking the value of free expression”: at para. 81.

[72] Ms. Dietrich believes that 40 Days’ vigils are inherently harassing and cause anxiety, depression, anger, and frustration in patients and staff who are exposed to them. The TikTok videos, she argues, were intended to send a message to 40 Days that what it was doing lacked public support. The videos were counter protests on behalf of women entering abortion-providing facilities, who were vulnerable and lacked the means to mount a reply.

[73] Ms. Dietrich’s arguments do not raise a question of law. They invite the court to reweigh the motion judge’s evaluations and – more fundamentally – to replace the motion judge’s factual findings with other findings on the content and motivation of the appellant’s expressions. The case that the appellant must meet at this stage is onerous: a reviewing court is to defer absent a palpable and overriding error. None has been identified.

[74] The motion judge found that there were reasons to believe that the purpose of at least some of the videos was not to “send a message” to 40 Days or otherwise communicate with it either directly or via the cooperation of those whose assistance was enlisted. Instead, the purpose of the impugned videos was to disrupt 40 Days’ operations. An obvious result of the false sign-ups, the shopping cart abandonment, the doxing, and the social media complaints was that 40 Days would know it had adversaries, but the motion judge found that this message would have been no more than a side-effect of Ms. Dietrich’s actual purpose. The motion judge found that the whole point of at least some of the impugned expressions was to impair 40 Days’ practical ability to carry out its vigils or to harm 40 Days’ reputation. This inference was available to the motion judge and is amply supported by the record. There is no basis upon which this court could interfere with it.

[75] Moreover, the motion judge clearly considered the broader context. She noted Ms. Dietrich’s argument that the expressions “must be assessed as a whole, in the bigger context and in light of [Ms. Dietrich’s] general pattern of advocacy.” And she concluded that although Ms. Dietrich’s earlier videos were “part of the debate on whether anti-abortion protesting should be permitted near hospitals providing abortion services,” her focus then changed to obstructing 40 Days’ operations. The motion judge clearly assessed the relationship between the impugned expressions and the broader context. We find no error in her analysis.

[76] In addition, while broader context is undoubtedly important for understanding the meaning of an expression, whatever good one ultimately hopes to achieve cannot be used to justify expression that the motion judge found could support a finding of malice. The argument that the broader purpose was to convey a lack of support is similarly unavailing. Most expression that passes the merits hurdle will also communicate a lack of support, contempt for, or disagreement with the target of the communications. This fact alone does not elevate the value of the expression.

[77] Another finding, which this court is not in a position to overturn, is the motion judge’s determination that Ms. Dietrich’s allegation that 40 Days’ volunteers engaged in harassment and intimidation during their vigils is not supported by the record. The motion judge specifically refused to find that the Safe Access to Abortion Services Act, 2017, S.O. 2017, c. 19, Sched. 1, was enacted as a response to 40 Days’ prayer vigils, or that 40 Days was otherwise engaged in the sorts of harassing behaviours documented against other protestors at other times and in other places. This finding is again entitled to deference.

[78] The appellant further argues that the motion judge erred in reasoning that Ms. Dietrich’s expression was of low value because it disrupted 40 Days’ operations. She argues that protest can be “inherently or deliberately disruptive, but this does not diminish its value or its Charter protection.” Additionally, she argues that 40 Days’ vigils are similarly disruptive and yet the motion judge failed to draw the same conclusion concerning 40 Days’ expression. The motion judge, she argues, had “no reason to protect 40 Days’ disruptive expression while finding [Ms. Dietrich’s] disruptive counter-speech malicious, harmful, and unworthy of protection.”

[79] There are several problems with this argument. First, with respect to the claim that Ms. Dietrich’s expression is Charter protected, it is true, but the argument is not sufficiently developed to assist the appellant. There is of course no government action at issue in this litigation, and appropriately there are no claims made about the violation of anyone’s Charter rights. The claim instead is that the commitment to freedom of expression underlying s. 2(b) of the Charter is also what motivated s. 137.1 and is relevant to its application: Pointes, at para. 77. It must be remembered, however, that just as s. 2(b) is qualified by s. 1 of the Charter, when appealing to Charter values an argument is needed to explain why any particular Charter value ought to take priority over others, including those generated from the Charter’s limitation clause: Pointes, at para. 76; McKitty v. Hayani, 2019 ONCA 805, 439 D.L.R. (4th) 504, at paras. 87-99.

[80] Second, the submission overlooks a distinction between ends and means in the motion judge’s reasoning. The motion judge did not presume that disruption, conceptually, is inherently positive or negative, lawful or unlawful. Everything depends on what is being disrupted, how, by whom, and whether anyone is subject to a legal duty not to do the act complained of.

[81] In this case, the motion judge found not just that Ms. Dietrich’s expressions led to disruption, but that there were grounds to believe that the form of disruption was tortious. As noted above, there was no error in this determination.

[82] The appellant vehemently disagrees with 40 Days’ message, but that does not render it low-value expression. The Supreme Court cautioned in Pointes that “judges should be wary of the inquiry descending into a moralistic taste test”, and instead instructed that the evaluation of the expression under s. 137.1(4)(b) should be guided by principles at the core of freedom of expression and other principles that underlie a free and democratic society: at paras. 76-77. This instruction should not be read as presupposing that moral evaluation is either unreasoned or lacking objectivity. Rather, it should be taken as an admonition to judges not to be quick to enter the fray on matters of moral controversy, and instead, for the purposes of this analysis, judges should disvalue only those expressions that would undermine or corrupt the core principles underlying the freedom of expression. This core has been identified as including “the search for truth, participation in political decision making, and diversity in forms of self‑fulfilment and human flourishing”: Pointes, at para. 77, citing R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 182 and Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para. 24. Expressions and actions based on good faith convictions about human flourishing are not of lesser value simply because many people – even most people – believe they are wrong.

[83] Ms. Dietrich argues that her expression is an appropriate form of counter‑speech that is meant to respond to 40 Days’ activities and vigils, which she sees as harmful to a vulnerable group, namely women seeking abortions. In making this argument, she relies on the Supreme Court’s decision in Neufeld, which had not yet been released at the time the motion judge released her decision. However, the circumstances in Neufeld are significantly different than in this case. Unlike in Neufeld, Ms. Dietrich did not simply express strong disagreement with 40 Days’ activities and vigils. Rather, the motion judge found that there was reason to believe that the videos actively encouraged her viewers to disrupt 40 Days’ activities.

[84] The motion judge found that there was comparatively low value in the expression grounding the conspiracy claim because there was reason to believe it was the means by which she sought the assistance of others in carrying out a plan to impair the operations of 40 Days. Expression of this nature is not a matter of countering one argument with another. It is instead an attempt to prevent others from speaking. If the core of expression is in advancing reasons for action or belief, expression intended to prevent others from speaking is at the very margins.

[85] Had the videos that formed the basis for 40 Days’ claim been limited to the defamation videos, namely videos #4, 5, 6, 9, and 11, the weighing of the value of her expression may well have been different. However, Ms. Dietrich’s expression was not limited to her views on abortion and on 40 Days’ activities and strategies. Several of her videos encouraged others to interfere with 40 Days’ activities and vigils. This is qualitatively different from counter-speech.

[86] 40 Days did not take issue with Ms. Dietrich’s pro-choice expression or her stance against abortion protests at hospitals – it only raised concerns with the obstruction of its own operations. Indeed, the motion judge found that:

The primary purpose of 40 Days commencing its action does not appear to be to silence Ms. Dietrich or the other Defendants on their pro-choice views. Rather, the main motivation of 40 Days appears to be to protect its ability to organize its prayer vigils without undue disruption, to carry on its organizational activities without undue harassment, and to protect its reputation.

This was a factual finding that is owed deference.

[87] A further argument advanced by Ms. Dietrich is that because her expression is aligned with the “Charter protected right to choose to have an abortion” it is therefore a valuable counter to the threat to Charter rights posed by 40 Days’ own expression. She argues that her expression should be valued for its defence of the constitutional rights of others as against those who would impede the exercise of those rights.

[88] The invocation of the Charter in this context cannot do the work Ms. Dietrich requires because, again, her speech does more than express an opinion about abortion or 40 Days’ activities and strategies. As found by the motion judge, it seeks to interfere with 40 Days’ ability to express its views and carry out its activities.

[89] Even assuming Ms. Dietrich’s interpretation of the Charter to be uncontroversial, it would not follow that expression premised on a different interpretation of the Charter would inherently be of lesser value. A free and democratic society is one that is committed to permitting everyone to speak what they understand to be the truth about the most profound questions of being and flourishing, and to advocate for laws and policies that reflect this.

[90] Finally, and as noted above, the motion judge found as a fact that the impugned expressions were not focused on the broader debate over the propriety of anti-abortion protests. Rather, they were “focussed on actively disrupting and impeding 40 Days in its anti-abortion activities.” Accordingly, the motion judge did not commit any reviewable error in concluding that Ms. Dietrich’s expression was of comparatively low value.

[91] The Canadian Civil Liberties Association (the “CCLA”) was permitted to intervene in order to make submissions intended to assist the court with the weighing analysis in s. 137.1, and in particular, in appropriately characterizing the value of online expression. However, the CCLA’s submissions addressed a factual matrix very different from the one developed in the record before the court. Its submissions were accordingly not useful in deciding this appeal.

(iii) Overall weighing – what is really going on?

[92] It is important to remember that the purpose of s. 137.1 is to weed out strategic and abusive proceedings that have been initiated to silence defendants, preventing them from speaking out on matters of public interest. It aims to encourage and maintain a strong public culture of free expression. The foregoing steps in the analysis are intended to put the motion judge in a position to understand and evaluate the expression involved in the action, and determine whether the plaintiff, who has likely suffered some damage as a result of the defendant’s actions, ought to be permitted to hold the defendant to account for those actions. Or, whether the plaintiff is using the litigation not for a bona fide purpose of vindicating any actual loss but in order to silence the defendant for a collateral purpose.

[93] What is required in the final weighing, as this court pointed out in Mondal, at paras. 68-70, is not a literal weighing of harms. Weighing and balancing are metaphors for a structured evaluation of competing interests. The “weighing” is a matter of reasoning towards a conclusion about whether the litigation is being genuinely pursued to remedy a legal wrong.

[94] The motion judge found that 40 Days had met its onus of establishing grounds to believe it had suffered harm as a result of Ms. Dietrich’s actions. She found reasons to believe that at least some of Ms. Dietrich’s expressions, particularly those that were invitations to others to harass and obstruct 40 Days, were malicious and of low value. She found that 40 Days had suffered damages as a result of these expressions and that these damages were sufficiently serious to outweigh the low value of Ms. Dietrich’s impugned expressions. She did not accept that 40 Days was pursuing the litigation for abusive reasons. Accordingly, she concluded that the motion should be dismissed.

[95] We are not persuaded that the motion judge made any reviewable error in this analysis. At root, the expressions did not involve an effort to counter speech with speech. Instead, Ms. Dietrich is alleged to have led a campaign to prevent 40 Days from organizing and expressing its views. This is not the type of expression s. 137.1 of the CJA is meant to protect. These issues should go to trial on a full record, after which the court below will decide whether 40 Days has made out its claims against Ms. Dietrich.

[96] In addition, although there is a clear disparity in resources between the parties – and in some contexts that may be an indicium of an abusive proceeding – this does not lead inevitably to the conclusion that a proceeding is abusive or strategic litigation designed to interfere with freedom of expression. It is only one factor to consider in the weighing mandated by s. 137.1.

[97] The motion judge made no reviewable error in the overall weighing. We therefore dismiss the appeal.

(c) Should Ms. Dietrich have been awarded damages?

[98] Given that we have upheld the dismissal of the motion under s. 137.1 of the CJA, there is no need to revisit the motion judge’s determination that Ms. Dietrich is not entitled to damages under s. 137.1(9).

IX. Disposition

[99] We dismiss the appeal and award costs to the respondent in the amount of $10,000.

Released: August 2, 2024 “B.W.M.” “B.W. Miller J.A.” “A. Harvison Young J.A.” “L. Favreau J.A.”