Court File and Parties

COURT FILE NO.: CV-16-560261 DATE: 20170302 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: UNITED SOILS MANAGEMENT LTD., Plaintiff AND: KATIE MOHAMMED, Defendant

BEFORE: LEDERER, J.

COUNSEL: William A. Chalmers, for the Plaintiff Sabrina Callaway, for the Defendant

HEARD: February 3, 2017

Endorsement

Introduction

[1] This motion is a piece of a new puzzle.

[2] It addresses an aspect of the response of the Government of Ontario to what has become known as “strategic litigation against public participation or SLAPP lawsuits”. [1] Such an action has been defined as:

...a lawsuit initiated against one or more individuals or groups that speak out or take a position on an issue of public interest. SLAPPs use the court system to limit the effectiveness of the opposing party’s speech or conduct. [2]

[3] Such lawsuits can intimidate opponents, deplete their resources, reduce their ability to participate in public affairs, and deter others from participating in discussions on matters of public interest. [3]

[4] The Attorney General created an Advisory Panel on Anti-SLAPP legislation to advise him as to how the Ontario justice system may prevent the misuse of our courts and other agencies of justice, without depriving anyone of appropriate remedies for expression that actually causes significant harm. [4] The panel produced a report [5] and the government, with the report in hand, passed an amendment to the Courts of Justice Act [6] directed to allowing these lawsuits to be dismissed on a summary motion. Section 137.1 of the Courts of Justice Act provides, in part:

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.

(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.

[5] In this action, the defendant has brought a motion to dismiss the claim relying on the authority provided by the amendments to the Courts of Justice Act. The defendant says this litigation is directed to denying or limiting her freedom to express herself on a matter of public interest. According to the defendant it is “strategic litigation against public participation.”

[6] As part of its response the plaintiff brings this motion by which it seeks to examine the Mayor of the community in which the defendant resides and where the plaintiff conducts at least some of its business. Rule 39.03(1) of the Rules of Civil Procedure [7] on which the plaintiff relies states:

Subject to subrule 39.02(2), a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.

[7] Subrule 39.02(2) provides that where a party has cross-examined on an Affidavit delivered by an adverse party, he, she or it shall not conduct any examination under rule 39.03 without leave of the Court or the consent of the other parties. [8] In this case the defendant has been cross-examined on her Affidavit sworn in support of her motion brought pursuant to s. 137.1 of the Courts of Justice Act. Hence the leave of the Court to examine the Mayor is required.

Background

[8] At its meeting of August 23, 2016, the council of the town of Whitchurch-Stouffville authorized the staff of the town to amend the fill management plan applicable to a gravel pit owned and operated by the plaintiff, United Soils Management Ltd. The amendment would allow for the depositing of “acceptable fill from small quantity source sites and hydro-excavation trucks”. [9] The gravel pit is said to be situated near Musselman’s Lake and a water tower. On reading the decision of the council of the town and related material, the defendant became concerned that the amendment and the activity it would permit could cause contaminated material to come into the site. She believed the amendment would cause residents of the town to be very concerned. [10]

[9] As a result the defendant sent an email to a “secret group on Facebook called Stouffville Mommies” [11] and to “a closed group on Facebook called Stouffville Buy and Sell” [12] (Emphasis added). These messages said:

Hi Everyone,

Please check the front page of yesterday’s local paper-the town has approved hydro - vac trucks dumping their sludge into a pit by Muscleman’s Lake [sic] - the location is beside Stouffville’s water tower. Justin Altman [sic] voted against this, but 4 councillors of voted for it to pass!! In the deal, United Soils looks to make $4.1 million in the deal [sic], where Stouffville would only make $108,000 - to potentially poison our children. I have received the tweets that documented this meeting, and I will post them if anyone would like to see... I’ve heard there may be a petition we can sign to overturn this crazy decision...

[10] As explained by the defendant in her Affidavit sworn in support of the motion to dismiss, a “secret” group on Facebook is one with the highest level of privacy. Only current and former members of a secret group can see the name of the group and only current members can see what is posted to the group. To join a person must either be added or invited by an existing member. A “closed” group has a moderate level of privacy. As with a “secret” group only current members can see what has been posted but unlike a “secret” group anyone can see the name of the group and can ask to join. [13]

[11] Some who read the postings commented on them. Some referred to the dumping of the new waste in relation to a programme of planting trees (“tiny seedlings”) run by the plaintiff. In response the defendant posted the following:

“Yup, love how they’re “taking care of our children”!!”

“Gotta love a family event with a side of poison!!!

and

“That’s real nice, come out to our “free” events as we poison your children!”

[12] As reported in her affidavit, on September 6, 2016, the defendant received a letter from counsel for the plaintiff. The letter was clear in the concerns it expressed, the demands it made and the actions it proposed:

On or about September 2, 2016, you made false, malicious and defamatory statements about United Soils (the “Defamatory Statements”) in text messages provided to…. In the Defamatory Statements you make reference to United Soils “poisoning” the residents and occupants of the Town of Whitchurch-Stouffville (the “Town”) and failing to take care of the children in the Town.

The Defamatory Statements are untrue and defamatory of United Soils in their natural and ordinary meaning, and by innuendo, and were written by you to mean that United Soils is engaged, and shall engage, in harmful and illegal conduct, which is harming and shall harm residence and occupants of the Town.

United Soils hereby demands that you immediately cease making any further libelous or slanderous representations or statements about United Soils and that you immediately send a text to all of the Recipients, and any others to whom the Defamatory Statements were sent or made, in which you wholly retract and apologize for the Defamatory Statements.

Enclosed and served upon you in accordance with the Rules of Civil Procedure is a Notice of Libel under section 5 (1) of the Libel and Slander Act, R.S.O. 1990 c. L. 12. United Soils intends to commence an action against you in respect of the Defamatory Statements, and reserves all rights in this regard.

I urge you to take the steps set out in this letter so as to reduce the damage caused by the Defamatory Statements you made. [14]

[13] The defendant responded to the demands that had been made. On September 6, 2016, immediately after receiving the letter and Notice of Libel she removed the word “poison” from each Facebook post. At the end of each Facebook post and in personal messages sent on September 8, 2016, she delivered an apology that was abject in its wording and its tone:

I retract and apologize for the defamatory and slanderous statements I made about United Soils. As strongly as I am concerned about the health and safety of our children, I apologize for any defamatory or slanderous statements I’ve made. Blame me for being an over-protective mama-bear. Like others, will think twice before posting next time. [15]

[14] On September 9, 2016, counsel for the plaintiff delivered a second letter enclosing the Statement of Claim in this action.

The Motions Referred To

[15] On or about October 6, 2016, the defendant commenced the motion to dismiss the action pursuant to section 137.1(3) of the Courts of Justice Act. This was followed by a Statement of Defence. In its initial form it is dated October 17, 2016. It was amended October 25, 2016. This precipitated a motion from the plaintiff. Upon a motion being brought to dismiss an action pursuant to section 137.1(3), the Courts of Justice Act section 137.1(5) prohibits any further steps being taken in the proceeding until that motion and any subsequent appeal have been resolved [16]. The plaintiff moved to set aside the filing of the Statement of Defence as a fresh step. In considering the motion Master Muir acknowledged that the filing of the Statement of Defence was a fresh step but concluded that it should be understood to be “a necessary and desirable step” [17] given that among the considerations on a motion under section 137.1(3) is whether the moving party has a valid defence. The Master dismissed the motion. Not satisfied the plaintiff appealed. Mr. Justice Penny found that Master Muir had misinterpreted section 137.1(5). The filing of the Statement of Defence was a fresh step and was to be treated as such. He granted the appeal but went on to observe that there was not much point to the motion; the plaintiff did not gain anything in the result. The Statement of Defence was relevant to the motion and could be put before the court by including it as an Exhibit to an Affidavit:

The plaintiff was successful on the motion. However it was an entirely technical and Phyrric victory given my disposition. The plaintiff turned a molehill into a mountain. [18]

[16] It is at this point that I return to the puzzle and the piece to which I alluded in the opening sentence of these reasons. The fundamental purpose of section 137.1 of the Courts of Justice Act and the related amendments to the Libel and Slander Act and the Statutory Powers Procedure Act found in Protection of Public Participation Act [19] is to protect “expression” [20] on matters of public interest. In part this is done by allowing for a swift end to litigation that runs contrary to that direction:

The legislature has determined that in some circumstances an expedited procedure for the dismissal of an action should be made available to a defendant in order to promote and protect expression on matters of public interest. [21]

[17] The design of this process is to make summary dismissal available where a lawsuit is brought to suppress public participation through the fear of exposure to costs and damages. In this case instead of moving quickly to resolution, the plaintiff is now bringing a further intervening motion, potentially causing the very harm the legislation is meant to address. On the other hand, any summary process risks taking away the right to sue when a lawsuit may be justified. Resolving this tension is the puzzle. The path to the overall solution is directed by section 137.1 (4) of the Courts of Justice Act:

(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.

[18] The piece of the puzzle is the insertion of a motion to allow for the examination of a non-party into what is supposed to be a summary procedure aimed at minimizing the risk of costs to those who have sought to comment on a public issue. The applicable rule provides some assistance. It directs that the granting of the right to such an examination is discretionary [22] and requires that such an examination should be pursued with reasonable diligence. [23]

Analysis

[19] I start with “reasonable diligence”. The limits of diligence, in respect of a motion brought under s. 137.1(3) of the Courts of Justice Act is guided by, if not set by, s. 137.2 which requires the motion to dismiss the action to be heard within 60 days after the motion is filed. The urgency this imposes is underscored by the requirement that the motion date be set before the motion is served. The significance of this requirement is confirmed by the realization that whereas specific provision is made to allow an extension of the time limit for cross-examinations (fixed at 7 hours) there is no allowance to extend the time for hearing the motion beyond the 60 day limit set by the legislation. Rule 39.03(3) (which deals with motions to examine non-parties applicable to any motion) indicates that a motion for an adjournment can be refused where the party seeking the adjournment has not acted with reasonable diligence (see fn. 22 herein).

[20] In this case, the motion brought under section 137.1(3) of the Courts of Justice Act, was commenced on or about October 6, 2016. The date set for its hearing was November 28, 2016. The parties first appeared before me at a 9:30 chambers appointment on January 27, 2017, which, it goes without saying, was well beyond the statutorily authorized period by which the motion was to be heard. It is not clear from the record presented on the motion what happened in the interim. [24] It appears from the Court file that following receipt of the motion to dismiss (the section 137.1(3) motion), on or about October 26, 2016, the plaintiff brought the motion to strike out the Statement of Defence heard by Master Muir, on December 2, 2016, and appealed to Mr. Justice Penny on February 6, 2017. On or about December 22, 2016, the plaintiff brought another motion, this one seeking to compel the defendant to answer four questions which she had refused to answer at, and subsequent to, her examination. Although the disposition of this motion is not apparent from the record, it would seem that it must have come before Master Short on January 27, 2017. It was scheduled to be heard on that day and is mentioned in a handwritten endorsement made by him bearing that date. These two motions were followed by this one seeking to examine the Mayor. On January 27, 2017, it came before me to consider whether the motion to dismiss had to be adjourned from the date that had, by then, been set (February 24, 2017) to accommodate the time required to hear this motion and examine the Mayor should it be granted. At that time, rather than adjourn the underlying motion, I determined to hear the motion to examine the Mayor, one week later, on February 3, 2017. On that day, uncertain as to the answer and the length of time it would take to provide proper reasons, I adjourned the motion to dismiss to April 11, 2017.

[21] In considering whether this proceeding has developed with the diligence required by the legislation and the Rules of Civil Procedure, consideration of the three motions brought within the motion, commenced by the defendant to dismiss this action, is required.

[22] The first of these motions, the one to strike the Statement of Defence, was found by Mr. Justice Penny to be unnecessary.

[23] The second, the motion to compel the defendant to provide answers that had been refused, is, in the absence of the disposition, difficult to comment on. Nonetheless, I observe that each of the four question deals with the damages sought by the defendant in a counterclaim she initiated [25] and, as such has nothing to do with the substance of the motion to dismiss. Section 137.1(9) recognizes the possibility that an action started to impede “expression…that relates to a matter of public interest” may result in a claim for damages made by the defendant within or as part of the motion to dismiss. It states:

If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.

[24] As I perceive it, such a claim for damages is not a counterclaim. “A counterclaim is an independent action. The scope of such a claim is not limited by the Statement of Defence. [26] A defendant can bring a counterclaim in a role or interest different than the role or interest in which the defendant is sued in the original claim. [27] A claim that is authorized by section 137.1(9) is a claim that reflects on the damage that may be caused to a defendant by the commencement of an action brought in bad faith or for an improper purpose and ultimately dismissed on a summary motion. The ambit of a claim authorized by section 137.1(9) is narrower than the permitted parameters of a counterclaim. A claim that relies on section 137.1(9) is more akin to a claim made under an undertaking as to damages where an injunction has caused harm to the defendant in the action.

[25] The Amended Statement of Defence and Counterclaim was sensitive to the distinction. The Counterclaim introduces the remedy it seeks with the following words:

If it is required in order to claim damages on a motion to dismiss under section 137.1 of the Courts of Justice Act, the defendant, Mrs. Mohammed, claims against the plaintiff….

[Emphasis by underlining added]

[26] What follows are the requested remedies: $20,000, pre-judgment interest, post-judgment interest and costs. All that is added beyond the remedy and the Statement of Defence is the assertion that the defendant “has suffered and will continue to suffer, significant distress, humiliation and anguish as a result of the commencement of the action by the plaintiff”. On this basis the claim can be for nothing more than the distress associated with the fact that the defendant was sued in circumstances where the law suit has been dismissed pursuant to section 137.1(3) of the Courts of Justice Act and was brought in bad faith or for an improper purpose. One can only speculate that such circumstances will be rare and the amount of any damages small. Taking these factors into account, to my mind the questions that were the subject of the motion to compel answers were disproportionate and lead to the prospect that this is all a continuing exercise to intimidate the defendant. Is it really necessary to obtain the “entire file” of the doctor or to understand the benefits provided to “recipients” under the plan provided by York Catholic District School Board (see fn. 25)? If we are to be responsive to the direction that people are to be able to express themselves on public issues, free from law suits and adjunct proceedings utilized to narrow their freedom to speak, we need to accept that there will be limits to the broad right to litigate.

[27] Even if I am wrong in this, to my mind, it does not matter.

[28] So far as I can see there is nothing that requires a determination of any damages to be made at the same time as the action is dismissed or within the 60 days such a finding is to be made. To the contrary, the words of subsection 137.1(9) presumes that such a determination has already been made and is accompanied by a finding of either “bad faith” or “an improper purpose” (see para. [23] above, the quotation). Given the summary nature of a motion brought pursuant to section 137.1(3) of the Courts of Justice Act it would be impractical to assess the extent and validity of, and produce the information necessary to prove any damages sought by a defendant aggrieved by “strategic litigation against public participation (SLAPP)” This is demonstrated by the nature and detail of the information requested in the questions that were the subject of the motion (see fn. 25 where the questions are quoted). Viewed in this context it was not necessary to bring this motion. It could have waited. If the plaintiff is successful in defending the motion to dismiss, it will be on the basis that the claim was properly brought. There would be no bad faith or improper purpose. There could be no claim pursuant to section 137.1(9) of the Courts of Justice Act. If the plaintiff is unsuccessful, as with an injunction where damages are sought under an undertaking to pay them, the issue could be determined later.

[29] I make these comments concerning the motion to compel answers cognizant of the comment made by the deponent of the Affidavit sworn in support of this motion to examine the mayor:

As Mohammed seeks an adjudication of her counterclaim at the return of the Anti-SLAPP Motion, all the relevant facts regarding the damages she allegedly suffered should be before the judge at the return of the Anti-SLAPP Motion. [28]

[30] To my mind it seems clear, through expressed concern for access to justice, changes to the Rules of Civil Procedure and motions like the one authorized by section 137.1(3) of the Courts of Justice Act, the courts are being directed to make a process, which by its design is comprehensive, more efficient. This being so, it may be, as I have suggested, that in circumstances such as this, there is no right to every bit of information a party may think it needs to make its case. At the least, in this circumstance, the situation required a more practical response from counsel than yet another bold, unlimited declaration of a right to all relevant information. As it is, the parties have chosen the path they are on. There were other options. [29] I am seized of the motion to dismiss. Should it remain pertinent, I will consider how any claim for damages is to be dealt with at that time.

[31] The third of the interlocutory motions brought by the plaintiff is this one. The plaintiff wants to examine the Mayor. A consideration of this motion takes into account both tests: diligence in bringing the motion and the exercise of the Court’s discretion (see para. [18] above).

[32] In making his submissions counsel for the plaintiff relied on answers that were refused by the defendant, at her cross-examination, and later provided, as follows:

On or about September 7, 2016 to September 9, 2016, Mrs. Mohammed conversed with Mayor Altmann two or three times by Facebook Messenger App and telephone to discuss the following:

• Concern about the lawsuit
• Fear over selling family home to cover legal fees
• Mayor Altmann said it looked like the plaintiff was trying to intimidate Mrs. Mohammed. He offered support saying “we are all in this together.”
• Mrs. Mohammed asked Mayor Altmann for advice. She was looking for help.
• Mrs. Mohammed informed Mayor Altmann that the man who served her also said a town councilor and his son were also being served with papers.
• Mrs. Mohammed told Mayor Altmann about how scared she was about the lawsuit.

In October 2016, via text message, Mayor Altmann asked Mrs. Mohammed if she would like him to pass the press release on a through social media. Mrs. Mohammed said she would have to discuss the matter with her lawyers, following which she gave Mayor Altmann permission to distribute the press release. [30]

[33] What is clear from a reading of these interactions is that they are all after the postings, after the letters from counsel to the defendant and after the commencement of the law suit. She was frightened by it and wanted help and advice. The Mayor provided it when he said “we are all in this together”. There is nothing more to this.

[34] There is little else on which a demand to examine the Mayor could be based. The press release referred to in the answers to the questions put to the defendant (see the quotation immediately above) is nondescript. It reports on what was happening and does not repeat the allegedly defamatory statements found in the emails of the defendant. [31]

[35] There are “screen shots” (digital images shown on a computer monitor) “shared by the Mayor”. [32] These demonstrate comments that are the reactions of “the Mayor and 8 others” presumably in response to the press release and whatever articles it generated but certainly dealing with the situation and particularly the lawsuit. Some are repeated two or three times. [33] There is nothing incendiary about these comments. The general direction, in favour or opposed to the defendant, is mixed. [34] They stand on their own. It is difficult to see how any comment from the Mayor could add to their substance or probative value.

[36] In the Affidavit sworn in support of this motion, in a paragraph introduced as provided from the “further cross-examination” of the defendant, and referred to as including “evidence that is relevant to this motion” the plaintiff lists no fewer than 68 comments. Of these, only four refer to the Mayor. One establishes that the defendant knew that Justin Altmann was the Mayor of Whitchurch-Stouffville; another that the defendant and the Mayor have discussed this lawsuit; the third indicates that the defendant did not have a panic attack when the posts were put on Facebook or when she discussed the matter with Sue Pawley and the Mayor; and, the fourth that she did have a panic attack when she talked to the Mayor after receiving the Statement of Claim. The only substantive issue dealt with in these four comments is the presence and absence of “panic attacks”. This could bear, in some fashion, on the claim made by the defendant that she has suffered distress as a result of the action being launched against her. It is evident from the large array of comments thought by the deponent of the Affidavit to be relevant to the motion that the intention is to extend the examination of the Mayor well beyond the four comments that expressly refer to him. This could be taken as another example of the intention of the plaintiff to make use of all the means possible to extend the motion to dismiss into every nook and cranny where something relevant might be found in contrast to the summary means by which these motions are intended to be resolved. It would be possible to allow an examination but restrict it to the presence or absence of panic attacks or other observed responses of the defendant to the law suit. This would take us back to a consideration of the need or appropriateness of using an examination of the Mayor for further inquiry into the damages presently being claimed by the defendant.

[37] I return the two tests to be applied in considering whether leave should be granted to allow for an examination of the Mayor of Whitchurch-Stouffville: on the one hand the exercise of reasonable diligence and on the other hand the exercise of the discretion of the Court.

[38] Diligence in this case is applied specifically to the motion for leave to examine but diligence should be measured in the context in which that motion is brought. In this case the context is set by the requirement that the motion to dismiss is to be heard within 60 days of its being filed and the date being set even before service. When the motion to examine the Mayor was set the 60 days had long since passed (October 6, 2016 to January 24, 2017). I note that the “the further cross-examination” which was said to be the catalyst for seeking leave took place on January 19, 2017, or five days before this motion leave was brought. Taken on its own this would meet the test for diligence but, in these circumstances that is not the proper measure. On a motion that is to be heard within 60 days, any cross-examination should have been completed long before this one was.

[39] There were three interlocutory motions brought on behalf of the plaintiff. One which the judge, after hearing an appeal from the Master, found was unnecessary. It was a molehill treated as if it was a mountain. The second was also unnecessary. It asked for the production of extended medical and insurance information in the face of a narrow and restricted claim. If the detail was truly required it could have been delayed. It arose from a Counterclaim which is a separate claim. Finally, on the motion I am now to decide, it would seem counsel wishes to take two observations concerning the presence and absence of panic attacks and build them into a widely cast examination of the Mayor. I acknowledge that counsel for the defendant indicated willingness that the examination be restricted to two hours. That concession, if it is one, is not a major consideration. It is not the time taken up that is the concern. It is the breadth of the subject matter and whether the usefulness of such an examination has been demonstrated that is of concern.

[40] This motion was part of a continuing pattern which, by design or otherwise, acted directly contrary to the specific intention that motions brought pursuant to section 137.1(3) of the Courts of Justice Act be summary in nature and to the general direction that judges and, by association, counsel be more efficient in operating the processes of the Court. Whether the circumstances of this case are applied to considerations of diligence or the discretion of the Court I find that leave should not be granted. The required diligence is absent and the circumstances and actions taken on behalf of the defendant, taken as a whole, militate against discretion being exercised in favour of the moving party. To grant the motion would promote a misuse of the process outlined and intended by section 137.1 of the Courts of Justice Act.

[41] I make one further comment. The Mayor is a public official. It is clear that by their nature matters that give rise to a motion under section 137.1 of the Courts of Justice Act may involve holders of public office. Those who do are not immune from having to testify, either in court or, through examination, in preparation for a hearing. Having said this we should not fall too easily into requiring public people to be examined or cross-examined because they moved to assist someone who, through their participation in our public discourse, fell prey to a court proceeding. This could lead to politicians and civil servants being subjected to wide and unnecessary examinations directed to purposes other than the proceeding, at hand. It could cause a chill in the efforts of those in public positions to communicate with and assist those they are elected, hired or appointed to serve.

[42] The motion is dismissed.

Costs

[43] I heard no submissions as to costs. In the circumstances I will consider such submissions in conjunction with the motion to dismiss.

Lederer, J. Date: March 2, 2017

[1] Anti-Slapp Advisory Panel Report to the Attorney-General, October 28, 2010 at para. 1 and as referenced in fn. 1 therein: “An overview of the phenomenon, with case examples, along with a legal analysis, was published by the Public Interest Advocacy Centre in 2004: “Corporate Retaliation Against Consumers”, http://www.piac.ca/consumers/corporate_retaliation_against_consumers.” [2] Ibid at para. 1 [3] Ibid at para 1 and as referenced in fn. 2 therein: “Uniform Law Conference of Canada, ‘Strategic Lawsuits against Public Participation (SLAPPs) (and other abusive lawsuits)’ (2008) at 1 online: [http://www.ulcc.ca/en/poam2/SLAPP%20 Report.pdf](http://www.ulcc.ca/en/poam2/SLAPP%20 Report.pdf). (‘ULCC Report’)” [4] Ibid at para. 2 and as referenced in fn. 3 therein: “Ministry of the Attorney General, Anti-SLAPP Advisory Panel, online: http://www.attorneygeneral.jus.gov.on.ca/english/anti_slapp/ (‘Ministry web site’)” [5] Ibid [6] R.S.O. 1990, c. C.43 The amendment is the result of Protection of Public Participation Act, 2015 S.O. 2015 Ch. 23: “An Act to amend the Courts of Justice Act, the Libel and Slander Act and the Statutory Powers Procedure Act in order to protect expression on matters of public interest.” [7] R.R.O. 1990 O. Reg. 1994 [8] Subrule 39.02(2) in its entirety says: A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03. [9] Affidavit of Katherine Mohammed, sworn September 26, 2016 at para. 5 and Exhibit A (Town of Whitchurch-Stouffville Council Minutes, Tuesday August 23, 2016 at Items 6 and 20) [10] Ibid at paras. 6, 13 and 14 as well as Exhibit B and Exhibit C (respectively tweets citing a consultant saying that “contaminated soils could come into the site” and that the Mayor and a councillor were concerned about the risk (Exhibit B); a newspaper article entitled “Risk of Contaminants” (Exhibit C)) [11] Ibid at para. 15 [12] Ibid at para. 19 [13] Ibid at paras. 16 and 20 as well as Exhibit E [14] Ibid at para. 22 and Exhibit F [15] Ibid at paras. 25 and 26 and Exhibit F [16] Subsection 137.1(5) states: 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 disclosed of. [17] United Soils Management Ltd. v. Mohammed 2016 ONSC 7567 at para. 12 (Ont. Master) and [18] United Soils Management Ltd. v. Mohammed 2017 ONSC 904 at para. 24 (Ont Sup. Ct.) [19] See fn. 6 [20] Courts of Justice Act, supra (fn. 6) s. 137.1(2) defines expression as: …any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity. [21] United Soils Management Ltd. v. Mohammed, supra (fn. 16) at para. 6 (Ont. Master) [22] Rule 39.03 (1) begins: Subject to subrule 39.02 (2), a person may be examined as a witness before the hearing of a pending motion… [Emphasis added] [23] Rule 39.03 (3) states: The right to examine shall be exercised with reasonable diligence, and the court may refuse an adjournment of a motion or application for the purpose of an examination where the party seeking the adjournment has failed to act with reasonable diligence. [24] To be complete I should point out that the Case History Report that is included in the Court file reports that on December 19, 2016, there was to be a motion heard by the Court. The motion date was “vacated due to failing to file your notice of motion within ten days after the motion date was requisitioned.” I am unaware of what motion is being referred to. I can only note that the various interlocutory motions have proceeded as outlined herein. [25] The four questions are: To advise how the $20,000 figure was arrived at that is being claimed it for damages in Ms. Mohammed's counterclaim. To produce the entirety of Dr. Alvarez’ file. To produce a copy of the prescription that Dr. Alvarez prescribed to Ms. Mohammed. To produce a copy of the portion of the benefits plan from the York Catholic District School Board that sets out what the benefits are provided to recipients of the plan. [26] Archibald, Killeen and Morton Ontario Superior Court Practice, 2017 LexisNexis Canada Inc. 2016 at p. 1200 referring to Baig v. The Guarantee Company of North America, [2007] O.J. No. 4727, 2007 ONCA 847 [27] Ibid (Ontario Superior Court Practice, 2017) referring to Jaffe v. Miller, [1991] O.J. No. 921, 3 O.R. (3d) 680 (Ont. Master) [28] Affidavit of Alec Cloke, sworn January 30, 2017 at para. 18 [29] One option that might have applied is provided by Rule 6.1.01 of the Rules of Civil Procedure: With the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages. [30] Ibid at paras. 16, 30 and Exhibit E [31] The press release says: Katie Mohammed, a schoolteacher in Stouffville, was a recently sued for defamation by United management Ltd. after she expressed her opinion on local "Mommies" and "Stouffville buy/sell" Facebook group about an amendment to a fill agreement that would allow "acceptable fill from small quantity source sites and hydro-excavation trucks" on a site near Musselman's Lake in the Oak Ridges Moraine. The fill amendment remains a serious public issue in the community of Stouffville. A Facebook group called the "Hydrovac Protest Group" was formed to ask town Council to overturn its decision and held a meeting to discuss such matters on September 8, 2016. The Facebook group has since been taken down. Mrs. Mohammed has scheduled a motion to dismiss the action and claim damages for emotional distress, pursuant to a new provision of the Courts of Justice Act, which came into force in November 2015. The motion is schedule for December 19th, 2016. The Protection of Public Participation Act is meant to protect the rights of Ontario residents to speak out on public issues without fear of being faced with a strategic lawsuit, commonly referred to as a SLAPP (Strategic Litigation against Public Participation). Similar suits have been brought by landfill operators when individuals concerned with environmental impact of the sites have spoken out publicly. This case will be one of the first to test Ontario's Anti-SLAPP legislation. [32] Affidavit of Alec Cloke, sworn January 30, 2017 at para. 25 [33] Ibid at Exhibit L 's [34] Among the comments are the following two: Honestly, unless she had facts or proof that the soil is contaminated and could be harmful or dangerous to public health than she should keep her yap shut. And the two platforms she posted on was inappropriate [sic] for what those groups are for. Looks like the teacher is gonna get schooled on the law and litigation Hopefully all gets resolved respectfully and civilly. She clearly was just looking out for her family & community. Perhaps without being well-informed, but given her retraction and apologies practically immediately shouldn't result in a lawsuit.