CITATION: 40 Days for Life v. Dietrich, 2023 ONSC 5879
DIVISIONAL COURT FILE NO.: 180/22
DATE: 20231019
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Ryan Bell, and O’Brien JJ
BETWEEN:
40 DAYS FOR LIFE
P.H. Horgan and R.T.R. Fernandes, for the
Respondent
Plaintiff/Respondent
- and –
A. Matas and K. Gordon, for the Appellant
BROOKE DIETRICH, JOHN DOE, JANE
DOE and PERSONS UNKNOWN
Defendants/Appellant
- and –
CANADIAN CIVIL LIBERTIES ASSOCIATION
Z. R. Levy and R. Laurion, for the Intervener
Intervener
HEARD at Hamilton by
videoconference on April 28, 2023[^1]
Addendum: On October 26, 2023, the date of the order referenced in para. 66 was changed to March 2, 2022. The original version of the decision said the order was dated March 1, 2022.
REASONS FOR JUDGMENT
O’BRIEN J.
[^1]: The court permitted additional submissions from the parties on the issue of whether the appeal was stayed. Those submissions were completed and provided to this court on May 19, 2023.
Overview
[1] The respondent, 40 Days for Life, is an international organization based in Texas that opposes abortion. It holds 40-day prayer vigils twice per year outside abortion facilities at locations around the world, including several in Ontario.
[2] In early March 2022, the motion judge granted an interim injunction and then, several days later, an interlocutory injunction, against the appellant, Ms. Dietrich, restraining online activity targeting 40 Days. In October 2021, during the 40 Days Fall campaign in Kitchener-Waterloo, Ms. Dietrich engaged in various activities that she describes as “counter advocacy through digital protests.” In late February 2022, 40 Days was concerned Ms. Dietrich would restart her digital protests, this time targeting its Spring campaign. The central issue on this appeal is whether the motion judge erred in granting an interim and then an interlocutory injunction in March 2022 to enjoin expressive activity Ms. Dietrich had discontinued over four months earlier. The appeal also addresses the question of whether a motion brought under the anti-SLAPP provisions of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (CJA) precluded the granting of the injunctive order and stayed this appeal from the injunction.
[3] For the reasons that follow, I do not consider the appeal to be stayed in the specific circumstances of this case. On the merits, I would allow the appeal. At the time 40 Days sought injunctive relief, Ms. Dietrich had not engaged in any of the impugned activity for several months and had stated she did not intend to resume her activity. Ms. Dietrich’s activities were a form of digital protest to 40 Days’ own protests against abortion. The motion judge erred in failing to take into account the principle of caution when issuing an injunction related to anticipated but not yet realized harm, particularly in the context of expressive activity. In addition, the motion judge erred in not considering the anti-SLAPP motion when assessing the merits of the injunction.
Impugned Videos and Orders of the Motion Judge
[4] 40 Days took issue with 14 videos Ms. Dietrich posted using the social media app TikTok during its Fall campaign in October 2021. The videos can be organized into the following categories:
(a) Videos encouraging her audience to sign-up on the 40 Days website to attend in-person at the Fall campaign vigils. Ms. Dietrich encouraged the audience to then purposefully not attend the vigils, similar to a “no show” campaign organized during the 2020 American Presidential election.
(b) Videos showing Ms. Dietrich going to the 40 Days online store, filling up her virtual shopping cart with merchandise and not completing the transaction.
(c) Videos displaying contact information of individual 40 Days employees or volunteers, which 40 Days alleges encouraged harassment of individuals.
(d) Videos making allegations against 40 Days, which 40 Days considered defamatory, and in respect of which Ms. Dietrich states that she intends to plead fair comment.
[5] On October 6, 2021, the Chief Executive Officer of 40 Days sent Ms. Dietrich a cease-and- desist email, alleging that her activities were unlawful and potentially criminal. Ms. Dietrich posted her last video related to 40 Days’ activities on October 29, 2021, around the time 40 Days’ Fall campaign ended.
[6] The timing of subsequent events is important because Ms. Dietrich did not post anything further and removed additional material at the request of 40 Days. On December 17, 2021, counsel for 40 Days wrote to Ms. Dietrich demanding that she take down videos related to 40 Days, following which Ms. Dietrich took down all her videos referring to 40 Days.
[7] On February 22, 2022, Ms. Dietrich was served with 40 Days’ Statement of Claim and motion record seeking injunctive relief. Upon receipt of the materials, she took down other videos, which, although not specifically referring to 40 Days, related to her protest activities during the Fall campaign.
[8] Just over a week later, on March 1, 2022, the motion judge granted 40 Days the interim order it was seeking, to remain in effect until the matter came back before him by March 10, 2022. In a brief endorsement, he stated that he was satisfied 40 Days had met the test for injunctive relief. He made a broad order enjoining Ms. Dietrich, as well as “John Doe, Jane Doe, and Persons Unknown, and any other person with notice of [the] Order” from engaging in a list of activities.
[9] Following an attendance on March 9, 2022, the motion judge granted an order dated March 10, 2022 (the injunction order), continuing the injunctive relief until further order of the court. By that time, Ms. Dietrich had initiated an anti-SLAPP motion under s. 137.1 of the CJA. Subsection 137.1(5) provides that once a motion under s. 137.1 is made, no further steps may be taken in the proceeding until the motion (including any appeal of it) has been finally disposed of.
[10] In his endorsement, the motion judge accepted that the renewed motion was a hearing de novo. Ms. Dietrich did not file any additional materials on the return date and instead argued that the filing of the anti-SLAPP motion prevented the motion judge from renewing the injunctive relief. The motion judge disagreed, concluding that the s. 137.1(5) prohibition did not prevent him from deciding the motion since 40 Days brought its motion before the anti-SLAPP motion.
[11] The motion judge otherwise was satisfied that the injunctive relief should be continued.
Appeal to this Court
[12] Ms. Dietrich was granted leave to appeal the motion judge’s order to this court. At the outset of the appeal, the panel raised the question of whether the appeal was stayed pursuant to
s. 137.1(5) of the CJA. The decision on the anti-SLAPP motion is currently on appeal to the Court of Appeal and therefore has not been finally determined for the purposes of the statutory stay. The parties advised that the hearing in the Court of Appeal was scheduled to be heard July 18, 2023.
[13] After hearing the parties’ submissions, the court reserved on the issue of whether the appeal was stayed and offered the parties the opportunity to provide written submissions on the issue, which have been received and considered. The court then heard arguments on the merits of the appeal with the proviso that if the panel concluded that the appeal in this court was stayed, it would
hear further argument on this appeal from the parties following the release of the Court of Appeal’s decision.
Issues on Appeal
[14] The issues on appeal are:
Is the appeal stayed by operation of s. 137.1(5) of the CJA? This also raises the related issue of whether the motion judge could issue the injunctive orders despite the statutory stay;
Did the motion judge otherwise err in granting the interim order given that Ms. Dietrich had not engaged in any of the impugned activity for over four months?
Did the motion judge err in granting the injunction order where Ms. Dietrich had not engaged in any further protest activity and without considering the anti-SLAPP motion?
Fresh Evidence Motion
[15] Ms. Dietrich brought a motion to introduce fresh evidence on the appeal. After hearing argument, the court dismissed the motion subject to permitting the introduction of fresh evidence of correspondence between counsel related to the March 9 attendance. This evidence was relevant to Ms. Dietrich’s argument that she was denied procedural fairness with respect to that attendance. She submits counsel understood it to be an attendance for scheduling only. 40 Days submits it was not only a scheduling attendance but did not oppose the correspondence being admitted.
[16] The remainder of the evidence Ms. Dietrich sought to introduce consisted of an affidavit of 40 Days’ affiant Steven Karlen, which was filed on the anti-SLAPP motion, the transcript of Mr. Karlen’s cross-examination, and the related answers to undertakings. This evidence should not be admitted.
[17] The test for the admission of fresh evidence on appeal is set out in R. v. Palmer, [1980] 1
S.C.R. 759. The overarching concern is for the interests of justice: Palmer, at para. 31. In this case, the fresh evidence fails on the first step of the Palmer test, that the “evidence should not be admitted if, by due diligence, it could have been adduced at trial.”
[18] After the motion judge granted the March 1 order, Ms. Dietrich neither filed additional evidence of her own (relying on the brief affidavit filed on her initial appearance), nor did she seek to cross-examine Mr. Karlen on the affidavit 40 Days filed in support of the injunction. She instead relied on her position that the anti-SLAPP motion precluded the granting of injunctive relief.
[19] Ms. Dietrich also did not seek to bring the evidence back before a motion judge to vary the injunction order. The evidence Ms. Dietrich now seeks to introduce includes the 65-page affidavit of Mr. Karlen filed on the anti-SLAPP motion and the cross-examination on that affidavit. This is not targeted, newly discovered evidence. It is an attempt to back-fill the record before the motion judge, who was dealing with a motion brought on an urgent basis and characterized as time-
sensitive. Ms. Dietrich could have, but did not, seek a return of the injunction before the motion judge. In its supplementary submissions, 40 Days has advised that Ms. Dietrich did seek to have the injunction dissolved at the hearing of the anti-SLAPP motion but did not focus any submissions on this point.
[20] Bringing the issue back before the motion judge would have allowed that judge to make factual findings and consider the exercise of discretion in the context of this more comprehensive record. Having failed to bring the more comprehensive record before the motion judge, it is not in the interests of justice to admit the fresh evidence on appeal.
Standard of Review
[21] On an appeal from a motion judge, the standard of review is correctness for questions of law. For questions of fact and questions of mixed fact and law from which the legal principle is not readily extricable, a standard of palpable and overriding error applies: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 36-37.
[22] On an appeal from an interlocutory injunction, unless the motion judge erred in principle or was clearly wrong, the appellate court must defer to the motion judge’s discretion: see Easyfinancial Services Inc. v. Ezmoney Tario Inc., 2018 ONSC 1542 (Div. Ct.), at para. 9.
Is the appeal stayed by operation of s. 137.1(5) of the CJA?
[23] Ms. Dietrich submits that the appeal is not stayed under the CJA. She submits that
s. 137.1(5) of the CJA should have prevented the motion judge from hearing the injunction once she filed her anti-SLAPP motion. However, as the injunction was issued, she submits that it is open to the court to review that decision. In her submission, the appeal is not a “further step,” but rather a necessary correction to an improper decision. According to Ms. Dietrich, the injunction “cannot be appeal-proof.”
[24] 40 Days submits that the appeal is stayed. In its submission, the motion judge was permitted to rule on the injunction because s. 137.1(5) does not prevent a judge from ruling on a motion brought prior to the anti-SLAPP motion, as the injunction was in this case. With respect to the appeal, 40 Days submits a court with an anti-SLAPP motion before it can rule on another step that it can efficiently and economically address within the schedule of the anti-SLAPP motion. It submits that the current injunction is not insulated from appeal but should have been challenged together with the anti-SLAPP motion and the appeal of that motion to avoid extraneous steps.
(a) Did the motion judge have jurisdiction to issue an injunction in spite of s. 137.1(5) of the CJA?
[25] Although, as discussed below, I find that the motion judge in this case erred for other reasons by granting the injunction, I agree with his conclusion that the hearing of the injunction motion was not stayed by s. 137.1(5).
[26] The full text of s. 137.1(5) reads as follows:
137.1(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.
[27] The Court of Appeal has interpreted this provision to allow a measure of discretion to motions judges, at least insofar as the exercise of that discretion promotes the goals of efficiency and economy: Boyer v. Callidus Capital Corporation, 2023 ONCA 233, at para. 62. For example, in Boyer, the Court concluded s. 137.1(5) did not preclude the motions judge from considering r. 21 and summary judgment motions that were initiated at the same time as the anti-SLAPP motions. In Zoutman v. Graham, 2020 ONCA 767, the Court of Appeal upheld the motions judge’s conclusion that he could hear a summary judgment motion that had been brought before the s.
137.1 motion. Motions judges have also interpreted s. 137.1(5) as permitting steps, including motions, within the anti-SLAPP motion itself. In The Catalyst Capital Group Inc. v. West Face Capital Inc., 2021 ONSC 125, at paras. 208 to 212, for example, the motions judge permitted privilege motions to proceed as an interlocutory step to the pending anti-SLAPP motions.
[28] The motion judge was not stayed from extending the injunction in this case. In my view, the discretion available to motions judges should be interpreted to permit injunctions where the moving party is able to demonstrate harm justifying injunctive relief. Courts have an inherent equitable jurisdiction to grant injunctions, which exists unless specifically ousted by statute: Robert J. Sharpe, Injunctions and Specific Performance (Toronto: Carswell, 2022) at 1:32. Given the existence of some discretion in the interpretation of s. 137.1(5), I would not interpret the provision as expressly ousting this equitable jurisdiction. The text of s. 137.1(5) does not expressly reference injunctive relief and to find otherwise would eliminate the court’s jurisdiction to prevent serious ongoing harm.
[29] It is useful to consider the fact scenario in Automotive Parts Manufacturers’ Association v. Jim Boak, 2022 ONSC 1001, which illustrates a situation of potential serious harm from expressive activity. There, an injunction was granted in relation to protest activity, which was to blockade the Windsor bridge. At the time the injunction was granted, the protesters had blocked all Canada bound traffic and severely limited US bound traffic. I am not aware of an anti-SLAPP motion having been brought in that case, but the fact scenario demonstrates the urgent need for injunctive relief in some cases of expressive activity.
[30] Although the anti-SLAPP regime is designed for the motion to be heard expeditiously, the reality is that the process is often protracted. In Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, at para. 35, the Court of Appeal endorsed comments by Myers J. that these motions have become expensive, time-consuming, and open to abuse. Myers J. observed as follows in Tamming v. Paterson, 2021 ONSC 8306, at paras. 7-9:
Despite the Legislature’s intention to create a preliminary hurdle, the process advanced in practice is more like a marathon. To that end, the mandatory 60-day time limit for resolving these motions is routinely ignored. Counsel on both sides usually need more time and, in Toronto at least, motion appointments are backlogged far more than 60 days.
[31] In this case, the anti-SLAPP motion was heard on May 31 and June 1, 2022, which is not far outside the 60 days prescribed by s. 137.2(2). The reasons for decision on the motion were
released on September 30, 2022. The appeal of the motion was heard in July 2023, more than 16 months after the motion was initiated. It would be contrary to the interests of justice and the court’s equitable jurisdiction to permit ongoing serious harm to continue during what can be a protracted period for the determination of an anti-SLAPP motion and any appeal.
[32] Ms. Dietrich points to a report of the Ministry of the Attorney General prior to the enactment of the anti-SLAPP provisions, which recommended as follows:
Until the [anti-SLAPP] motion for a remedy is decided, no other step in the action may be taken except possibly an injunction in the discretion of the court where the plaintiff can establish the fact or serious threat of irreparable harm, and the established special tests for injunctions restraining communicative activity are met.
Ministry of the Attorney General, Anti-SLAPP Advisory Panel Report to the Attorney General, October 2, 2010, at para. 42.
[33] Ms. Dietrich submits that this recommendation was not included in the wording of the legislation and, therefore, was discarded. Legislative intent cannot be gleaned only by reference to a single recommendation in a report. In any event, in my view, the recommendation could equally be read to support my interpretation of s. 137.1(5), which is to recognize the potential need for the court to exercise its equitable jurisdiction and grant injunctions in certain circumstances in spite of the stay.
[34] In this case, the motion judge relied on the initial injunction motion having been filed before the anti-SLAPP motion to find he had jurisdiction to grant injunctive relief. The Court of Appeal has permitted motions to proceed in some circumstances where they were initiated before or together with the anti-SLAPP motion: Zoutman, at para. 17; Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, at para. 7; Boyer, at para. 60.
[35] While the continued injunctive relief was sought after the anti-SLAPP motion was filed, in these circumstances, the request for interim relief can be viewed as part of the anti-SLAPP motion itself and therefore not stayed: The Catalyst Capital Group Inc. v. West Face Capital Inc., at para.
- 40 Days was entitled to seek this interim relief pending the determination of the anti-SLAPP motion on the basis that interlocutory steps can be taken within the anti-SLAPP motion itself.
[36] Where a motions judge determines it appropriate to hear an injunction motion, every effort should be made to schedule the motion in a manner that is efficient and avoids duplication. In many cases this would mean scheduling the motion to continue or to be renewed at the same time as the anti-SLAPP motion.
[37] Overall, I conclude that motions judges may in appropriate circumstances grant injunctive relief in spite of the filing of an anti-SLAPP motion, particularly where the injunction is an interlocutory step pending the hearing of the anti-SLAPP motion. The motion judge did not err in this case by finding he had jurisdiction to rule on the injunction.
(b) Is the appeal stayed by operation of s. 137.1(5) of the CJA?
[38] Subsection 137.1(5) also does not stay this appeal. I agree with Ms. Dietrich’s submission that the appeal should not be considered a “further step” within the meaning of s.137.1(5). Instead, given the purpose of the anti-SLAPP provision as a whole, it must be read as part of the same step as the ability to grant the injunctive relief itself.
[39] I start by relying on the Court of Appeal’s recognition that at least some discretion exists for the court to hear other matters after an anti-SLAPP motion has been filed, as discussed above. As I have said, in my view this includes the court’s inherent jurisdiction to order injunctive relief in some situations. Despite the strict wording of the s.137.1(5), which states that “no further steps may be taken,” the court is required to interpret the legislation in a manner that promotes the purpose of s. 137.1: Boyer, at para. 60, citing Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, at paras 7-9.
[40] Although the Court of Appeal has previously emphasized the provision’s focus on efficiency and economy, in the current case, the central goal of promoting expression on matters of public interest cannot be forgotten. Section 137.1 expressly details the regime’s purpose of promoting expression on such matters and discouraging the use of litigation to unduly limit that expression:
137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.
[41] I conclude below that the injunction in this case was granted in error. Ms. Dietrich therefore has already been wrongly prevented from engaging in expressive activity for more than 19 months. Staying the appeal would further exacerbate the situation. This is the opposite of what was intended by s. 137.1(1). To prevent an appeal from an order wrongfully enjoining expressive activity could defeat the purpose of the provision.
[42] With respect to the concern that permitting appeals would undermine the regime’s emphasis on efficiency and economy, it is important to recall that leave is required to appeal an interim injunction. This would be required even if Ms Dietrich had sought to combine an appeal of the injunction with the anti-SLAPP appeal, as submitted by 40 Days. In most cases, leave to appeal will not be granted given the discretionary nature of an injunction. The appeal will only proceed in the limited cases where a panel of this court concludes that the stringent test for granting leave has been met. Therefore, there will be comparatively few situations that raise the concern about a multiplicity of proceedings. The risk of such cases is outweighed by the risk of wrongly silencing a defendant for a protracted period. Given the centrality of encouraging expression on
matters of public interest to the purpose of the statutory provision, it must be the overriding concern. Therefore, the reference to “further steps” in s. 137.1(5) should not be interpreted to include an appeal from an interim injunction enjoining expressive activity.
Did the motion judge err in granting the interim order given that Ms. Dietrich had not engaged in any of the impugned activity for over four months?
[43] 40 Days submits that the court should not rule on the March 1 order, since it was effectively replaced by the March 10 order and is no longer in force. In my view, given the nature of the motion judge’s error, it is appropriate to rule on the March 1 order.
[44] The motion judge erred in principle when he granted the March 1 order because of the failure to take into account principles applicable to quia timet injunctions – that is, injunctions intended to provide relief where the anticipated act has yet to happen and no harm has yet been suffered.
[45] In the motion judge’s March 1 endorsement, he did not explain the basis for his conclusion that 40 Days had met the test for an injunction, stating only that he was satisfied the test was met.
[46] In his March 10 endorsement, however, he expressed his concern that Ms. Dietrich would renew what he considered to be harmful activity. He was not satisfied with Ms. Dietrich’s statement that she had no plans to engage in the impugned activity, stating:
Apart from the possibility that Dietrich’s “plans” may change, this defendant provides no comfort to the Court that she will not in the future post videos and threads that on their face promote sabotage strategies of the plaintiff’s prayer vigils and encourage harassment of the plaintiff’s employees and volunteers.
[47] Courts have jurisdiction to grant quia timet injunctions to prevent activity even though no harm has yet been suffered. But for such an injunction to be granted, “there must be a high probability that the harm will in fact occur” if not restrained: Sharpe, at 1:20.30. This is because, without evidence of the defendant having already caused harm, the court is put in the unenviable position of having to predict that harm will occur in the future and the degree of that harm. Given this difficulty, the court must be satisfied that the relevant factors which bear upon the granting of injunctive relief have crystallized: Sharpe, at 1:20.50.
[48] Here, the motion judge relied on conduct from several months earlier but failed to advert to the principle that the harmful activity must have crystallized at the time the injunction was sought. The evidence before the motion judge was that Ms. Dietrich had not posted any new videos alleged to be harmful for over four months, since late October 2021. When she was contacted by counsel for 40 Days in December 2021, she took down all videos referring to 40 days. These included the initial video in which she encouraged people to register online with 40 Days then not attend the vigil and videos referencing individuals’ emails or contact information. Upon being served with the injunction motion materials, she took down all remaining videos which might have been understood to relate to 40 Days’ activities.
[49] In her unchallenged affidavit evidence, Ms. Dietrich stated that she had never indicated an intention to post new videos or engage in acts of protest with respect to the 40 Days Spring 2022
campaign. She was not even aware of the Spring campaign until she was served with the motion material. She also reiterated that she had not engaged in the impugned protest activities since October 2021, stating: “While I believe these are legitimate means of protest, I have no plans to engage in this practice in relation to the Plaintiff’s spring campaign.”
[50] The principles applicable to quia timet injunctions -- requiring crystallization and a high probability of harm -- are particularly important in the expressive context. Ms. Dietrich’s activities were intended as a form of digital protest to express her views on a contentious social issue. Both parties agree on the importance of preserving freedom of expression with respect to the availability of abortion. Indeed, the injunction curtailing Ms. Dietrich’s digital protest activity was granted in order to facilitate 40 Days’ own anti-abortion protests. While 40 Days submits that Ms. Dietrich’s activity crossed the line into tortious conduct, there can be little dispute that her activity had an expressive component.
[51] Canada (HRC) v. Canadian Liberty Net, 1998 818 (SCC), [1998] 1 S.C.R. 626, at para. 47, discusses the need for a modified test for injunctions related to allegedly defamatory statements and hate speech. The modified test is necessary to sufficiently safeguard freedom of expression. Interlocutory injunctions to restrain in advance written or spoken words should only be granted “in the rarest and clearest of cases – where the words are so manifestly defamatory and impossible to justify that an action in defamation would almost certainly succeed” (adopting Champagne v. Collège d’enseignement general et professionnel (CEGEP) de Jonquière, 1997 10001 (QC CA), [1997] R.J.Q. 2395).
[52] One of the reasons for a modified test to enjoin expression is that the existing test arose in commercial contexts, where the parties’ respective tangible interests could be weighed. In the expressive context, “[t]he speaker usually has no tangible or measurable interest other than the expression itself, whereas the party seeking the injunction will almost always have such an interest.” Therefore, as stated by the Supreme Court, the test “stacks the cards against the non- commercial speaker where there is no tangible, immediate utility arising from the expression other than the freedom of expression itself.”
[53] The discussion in Liberty Net demonstrates the importance of limiting early interference with expressive activity. Ms. Dietrich’s activities in October 2021 were largely speech, although they showed her engaging in some internet activity. However, no such speech or activity was underway in February/March 2022. In this context, there was no imminent harm to justify limiting Ms. Dietrich’s freedom of expression. Quia timet injunctions, particularly those restraining expression, should not be issued “to be on the safe side.”
[54] The motion judge issued a sweeping order using broad language, such as, for example, prohibiting “sabotage or interference …by electronic means.” These are not defined legal terms; “interference,” especially, could cover a wide swath of activity. The order further prohibited activity that “intend[ed] to or likely [would] result in harm to 40 Days for Life’s business interests, charitable interests, and/or property, including intellectual and intangible property, reputation, and goodwill.” Activity that was likely to harm reputation or goodwill captures allegedly defamatory statements, meaning Ms. Dietrich’s freedom of speech was curtailed by the order. In short, this broad order pre-emptively limited Ms. Dietrich’s freedom of expression when there was no ongoing or imminent concrete harm at stake.
[55] The order also captured activity by “John Doe, Jane Doe, and Persons Unknown, and any other persons with notice” of the order, thus limiting the freedom of expression of persons who had, to that point, done nothing.
[56] 40 Days relies on Automotive Parts Manufacturers’ Association, discussed above, as an example of where an injunction was granted in relation to protest activity, which was to blockade the Windsor bridge. There was no speculation in that case as to what would occur. As I have said, at the time the injunction was granted, the protesters had blocked all Canada bound traffic and severely limited US bound traffic. The court found that the protest had significantly negatively affected the residents and businesses in the immediate area and that numerous City by-laws had been breached.
[57] By contrast, in the case of Li v. Barber, 2022 ONSC 1037, the court initially refused to grant an interim injunction in response to a class action alleging damage caused by horn blaring in Ottawa, which formed part of a truckers’ protest in February 2022. The court was not satisfied it had the proper record to order an interim injunction and therefore scheduled a further date before it was prepared to decide the matter.
[58] I do not need to decide whether Ms. Dietrich’s activities in October 2021 would have justified an injunction at that time because the October 2021 activities were historical. Ms. Dietrich’s uncontested evidence was that she had taken down the impugned videos and that she did not intend to renew this activity. In the face of this evidence and in the absence of any recent activity, the motion judge failed to take into account the principle that the injunction was premature. It was an error in principle for the motion judge to grant interim relief, unless and until Ms. Dietrich took allegedly harmful steps that could be specifically addressed.
Did the motion judge err in granting the injunction order where Ms. Dietrich had not engaged in any further protest activity and without considering the anti-SLAPP motion?
[59] I find the motion judge also erred in granting the injunction order. There was no additional evidence before the motion judge on March 9, 2022. Ms. Dietrich had not taken any steps contrary to his order, nor otherwise engaged in any new activity against 40 Days. In his analysis, the motion judge relied on Ms. Dietrich’s past conduct to find irreparable harm. At this second attendance, he again failed to take a hard look at whether Ms. Dietrich was actually causing harm. He also did not take into account the expressive component of her activity.
[60] In addition, by the time of the March 9 order, Ms. Dietrich had filed the anti-SLAPP motion. While it was within the motion judge’s jurisdiction to dispose of the interlocutory injunction prior to the anti-SLAPP motion, in my view he should not have done so without fully considering how the merits of the anti-SLAPP motion might impact 40 Days’ entitlement to interlocutory relief. Given the anti-SLAPP purposes of protecting expression on matters of public interest and preventing litigation from being used strategically to unduly limit expression, it was incumbent on the motion judge to consider how the anti-SLAPP motion impacted granting injunctive relief. Here, the anti-SLAPP motion had substantial merit on its face. At the second attendance, the motion judge should not have gone further than extending his order on an interim basis to be dealt with at the same time as the anti-SLAPP motion.
[61] The motion judge’s failure to limit the injunctive relief to another attendance also meant that Ms. Dietrich never had the opportunity to fully contest the injunction. I agree with 40 Days that, contrary to Ms. Dietrich’s submission, the return attendance on March 9 was not only for scheduling. It is clear from the correspondence between the parties that both sides knew that it would be necessary to address the extension of injunctive relief at that attendance.
[62] Still, Ms. Dietrich anticipated the injunction would be extended to the scheduling of a long motion date, which would have allowed her to assemble further materials. Instead, the motion judge granted interlocutory injunctive relief until further order of the Court and established a scheduled only for the anti-SLAPP motion. In order to provide Ms. Dietrich with a fair opportunity to respond fully to the injunction, the motions judge should have also established a schedule for a full hearing of the injunction motion to be determined together with the anti-SLAPP motion.
[63] Overall, in my view, the evidence did not demonstrate crystallized harm of a type that properly grounded an injunction. However, having decided to grant injunctive relief, the motion judge should have extended it only until a further attendance where it could be determined on a full record and in the context of the anti-SLAPP motion.
Additional Issues
[64] Ms. Dietrich makes other submissions in support of her position that the motion judge erred in granting injunctive relief. The motion does not turn on these issues, but I would dispose of them as follows.
(a) Ms. Dietrich submits that the motion judge erred in failing to provide adequate reasons for how the injunction test was met on the interim motion. In the motion judge’s March 1 endorsement, he did not explain the basis for his conclusion that 40 Days had met the test for an injunction, stating only that he was satisfied the test was met. I agree with Ms. Dietrich that it was an error for the motion judge to fail to say more. While reasons will often be sparse when a motion judge grants an interim injunction pending a quick return date, there is a danger in failing to address any steps of the injunction analysis. The failure to do so in this case meant that the motion judge did not squarely consider Ms. Dietrich’s expressive activity, nor the high bar for granting an injunction. The proper course here would have been to adjourn the motion without making the order on the basis that if circumstances changed (i.e. Ms. Dietrich did something to justify an order), the matter could be returned on an expedited basis.
(b) Ms. Dietrich submits that the motion judge failed to fully consider 40 Days’ delay in seeking the injunction as a factor against obtaining equitable relief. I do not consider the delay itself to have precluded the granting of injunctive relief. Instead, the passage of time meant there was no existing conduct and an insufficient basis for believing such conduct would arise.
[65] Finally, I note that the court heard submissions from the parties and the intervener, the Canadian Civil Liberties Association, on the appropriate test for an injunction preventing online expressive activity. Given the absence of crystallized conduct as described above, it is not
necessary to address the test that should be applied where such conduct has occurred, and I decline to do so.
Disposition
[66] Therefore, the appeal is allowed. The motion judge’s orders dated March 2, 2022, and March 10, 2022 are quashed.
[67] The motion judge required the orders under appeal to be published on 40 Days’ website and social media platforms to provide notice to any Unknown Defendants. 40 Days shall therefore now publish notice in the same manner that the orders have been quashed.
[68] As the successful party, Ms. Dietrich is entitled to costs. 40 Days shall pay her costs in the amount of $30,000 all-inclusive within thirty days.
O’Brien J
I agree
D.L. Corbett J
Released: 20231019
I agree
Ryan Bell J
CITATION: 40 Days for Life v. Dietrich, 2023 ONSC 5879
DIVISIONAL COURT FILE NO.: 180/22
DATE: 20231019
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Ryan Bell, and O’Brien JJ BETWEEN:
40 DAYS FOR LIFE
Plaintiff/Respondent
- and –
BROOKE DIETRICH, JOHN DOE, JANE DOE and PERSONS UNKNOWN
Defendants/Appellant
- and –
CANADIAN CIVIL LIBERTIES ASSOCIATION
Intervener
REASONS FOR JUDGMENT
O’BRIEN, J
Released: 20231019