CITATION: Hudspeth v. Whatcott, 2017 ONSC 1708

COURT FILE NO.: CV-16-558424CP

DATE: 20170320

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTOPHER HUDSPETH and GEORGE SMITHERMAN

Plaintiffs

– and –

WILLIAM WHATCOTT, JONI WHATCOTT, ADAM ZOMBIE, BRIAN ZOMBIE, CHRISTOPHER ZOMBIE, DOUGLAS ZOMBIE, EDWARD ZOMBIE, FRANK ZOMBIE, XYZ CORPORATION, JANE DOES and JOHN DOES

Defendants

R. Douglas Elliott, H. Scott Fairley, and N. Joan Kasozi for the Plaintiffs

Charles Lugosi and John W. Findlay for the Defendant William Whatcott

HEARD: February 8-9, 2017

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] In this action, under the Class Proceedings Act, 1992, S.O. 1992, c. 6, the Plaintiffs, Christopher Hudspeth and George Smitherman, two openly gay men (their self-description), bring claims of: civil conspiracy to injure, defamation, and intentional infliction of mental distress. The claims are brought on behalf of the LGTBTQ2SI (lesbian, gay, transgender, bisexual, transsexual, queer, Two Spirit, and intersex) Community. The Plaintiffs claim damages in excess of $100 million.

[2] More precisely, Messrs. Hudspeth’s and Smitherman’s proposed class action is brought on behalf of the approximately 500,000 people who marched in the 2016 Pride Toronto Parade (“Class 1” or The Marchers”). The Marchers advance a claim of civil conspiracy to injure. Class 1 includes a subclass (“the Liberal Subclass”) comprised of a group of about 500 persons, including Canada’s Prime Minister, Justin Trudeau, and Ontario’s Premier, Kathleen Wynne. The Liberal Subclass marched in the Pride Parade as a contingent of members of the federal and provincial Liberal Party. The Liberal Subclass advances a claim for defamation. Messrs. Hudspeth’s and Smitherman’s proposed class action is also brought on behalf of approximately 9,000 people at the parade (“Class 2” or “The Recipient Class”), who received a pamphlet distributed by the Defendants. The Recipient Class advances claims of intentional infliction of mental distress.

[3] The Defendants are led by William Whatcott. His co-Defendants are the “Gay Zombies,” who have the pseudonyms, Adam Zombie, Brian Zombie, Christopher Zombie, Douglas Zombie, Edward Zombie, and Frank Zombie, along with the unidentified financial backers of Mr. Whatcott, who have the pseudonyms XYZ Corporation, Jane Does, and John Does.

[4] The crucial factual background to the proposed class action is that in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, reversing 2010 SKCA 26, restoring in part 2007 SKQB 450, which upheld a decision of the Saskatchewan Human Rights Tribunal, (2005), 2005 80912 (SK HRT), 52 C.H.R.R. D/264, the Supreme Court of Canada ruled that two of four flyers distributed by Mr. Whatcott in Saskatchewan constituted hate speech and the Supreme Court enjoined Mr. Whatcott from distributing the flyers or any similar material that promoted hatred based on sexual orientation. In 2016, notwithstanding the Supreme Court’s order, Mr. Whatcott and his Gay Zombies attended the Pride Parade in Toronto and distributed pamphlets that allegedly contained hate speech and caused harm to The Marchers, the Liberal Subclass, and The Recipient Class.

[5] There are two motions before the court. Mr. Hudspeth and Mr. Smitherman bring a motion for a Norwich Order, i.e., an order compelling Mr. Whatcott to reveal the identities of the unidentified co-Defendants. Mr. Whatcott, brings a cross-motion for: (a) an order dismissing the action pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. 43 (Prevention of proceedings that limit freedom of expression on matters of Public Interest), which is the anti-SLAPP provisions of the Act (“SLAPP” refers to “Strategic Lawsuit Against Public Participation”); (b) alternatively, an order dismissing the action as an abuse of process; (c) alternatively, dismissing Messrs. Hudspeth’s and Mr. Smitherman’s action on the grounds that their Statement of Claim does not disclose a reasonable cause of action; and, (d) alternatively, striking out paragraphs 16, 20, 22, 24, 25, 27-30 and 52 of the Statement of Claim pursuant to rule 25.11 of the Rules of Civil Procedure.

[6] For the reasons that follow, I grant Messrs. Hudspeth’s and Smitherman’s motion and I grant Mr. Whatcott’s motion - in part. I strike out Messrs. Hudspeth’s and Smitherman’s Statement of Claim, but I grant them leave to deliver a Fresh as Amended Statement of Claim for an opt-in joinder action (not a class action). The opt-in joinder action will include a notice program to enlist co-plaintiffs from The Marchers, the Liberal Subclass, and The Recipient Class.

[7] Messrs. Hudspeth’s and Smitherman’s Fresh as Amended Statement of Claim, which does not require certification as a class action, may include a claim for injunctive or declaratory relief akin to what may be claimed in a class action in the United States under Rule 23 of the U.S. Federal Rules of Civil Procedure.

B. SUMMARY AND METHODOLOGY

[8] A summary of my explanation for striking out the Statement of Claim with leave to amend to plead an opt-in joinder action with a notice plan is as follows.

[9] Mr. Whatcott’s motion to dismiss the Plaintiffs’ action pursuant to s. 137.1 of the Courts of Justice Act fails because the Gay Zombies are Mr. Whatcott’s privies, and he and they are estopped from denying that the pamphlets distributed by them at the Pride Parade are hate speech. Therefore, Mr. Whatcott’s motion fails because the anti-SLAPP provisions of the Act do not offer protection for hate speech and the Defendants are estopped from asserting that the pamphlets distributed at the Pride Parade are a legitimate exercise of freedom of expression. However, it should be noted that for the purposes of defending the claims against them in the proposed class action or in the opt-in joinder action, whether there are any issue estoppels is a matter to be determined by the trial judge.

[10] Further, Mr. Whatcott’s motion to have Messrs. Hudspeth’s and Smitherman’s action dismissed on the grounds that it is an abuse of process fails. Although there was some indicia of an abuse of process by the manner in which Messrs. Hudspeth’s and Smitherman’s action was introduced to the public and in the gross impropriety of their Statement of Claim and in the rudeness and intemperance of their factum, nevertheless, a properly pleaded opt-in joinder action would not be an abuse of process and an action should be allowed to proceed in the interests of justice.

[11] Mr. Whatcott, however, does have grounds to have the Statement of Claim struck out in its entirety. As currently pleaded, Mr. Hudspeth’s and Mr. Smitherman’s action is misconceived as a class action because there is no common law cause of action by a collective for civil conspiracy to injure, defamation, or intentional infliction of mental distress, which are causes of action for individuals or several individuals. The civil law, generally speaking, is concerned with the civil rights of individuals, and, generally speaking, claims of a collective, like the LGTBTQ2SI Community, are matters for criminal law, administrative law, public law, or constitutional law, which is designed to protect the civil and human rights of a collective.

[12] It is plain and obvious that Messrs. Hudspeth and Smitherman do not have a reasonable cause of action that would satisfy the cause of action criterion for a class action. The Class Proceedings Act, 1992 is a procedural statute that allows a group to assert individual claims that have a common component, but it is not a statute that creates legal rights for a collective such as the LGTBTQ2SI Community. Therefore, their Statement of Claim should be struck out in its entirety.

[13] However, in the case at bar, individual members of the LGTBTQ2SI Community who have been defamed or who are the victims of a civil conspiracy to injure or of the tort of intentional infliction of mental distress may have individual claims against Mr. Whatcott and his co-Defendants. These individual claims can be joined together in an opt-in joinder action. The joinder of claims of co-plaintiffs can be facilitated by an opt-in notice program and the co-plaintiffs may also apply for a declaration and for injunctive relief that would benefit the LGTBTQ2SI Community similar to the relief available in a type of class action in the United States under Rule 23 of the U.S. Federal Rules of Civil Procedure.

[14] As far as Messrs. Hudspeth’s and Smitherman’s motion for a Norwich Order, it succeeds on terms. The terms are that I shall first authorize substituted service on the co-Defendants by service of a copy of the original Statement of Claim and a copy of this decision on Mr. Whatcott. This substituted service will provide the co-Defendants with the opportunity to disclose themselves, failing which Mr. Whatcott shall disclose their identities.

[15] I shall organize the balance of these Reasons for Decision under the following headings:

• Evidentiary Background

• Factual Background

o The Rudimentary Factual Background

o A Summary of the Statement of Claim

o Additional Factual Background

▪ Introduction

▪ Mrs. Whatcott and Mr. Jetchick

▪ Saskatchewan (Human Rights Tribunal) v. Whatcott

▪ Pride Toronto Inc. and the Toronto Gay Pride Parade

▪ The Press Conference

▪ Mr. Whatcott’s Response to the Proposed Class Action

• Discussion and Analysis

o Mr. Whatcott’s Arguments

o Messrs. Hudspeth’s and Smitherman’s Arguments

o The Canadian Charter of Rights and Freedoms, the Common Law, Hate Speech, and Freedom of Expression

▪ The Charter, Hate Speech, and Freedom of Expression

▪ The Legal Nature of Hate Speech

▪ The Common Law, Defamation, Hate Speech, and Freedom of Expression

o Is the Proposed Class Action an Abuse of Process?

o Are the Defendants Estopped from Denying that the Pamphlets are Hate Speech?

o The Anti-SLAPP Motion

o The Liberal Subclass’s Defamation Claim

o The Marchers’ Claim for Civil Conspiracy to Injure

o The Recipient Class’s Claim for Intentional Infliction of Mental Distress

o Leave to Amend to Plead a Joinder of Individual Claims

o An Opt-In Notice Program and Joinder Procedure

o Rule 23 of the U.S. Federal Rules of Civil Procedure

o The Request for a Norwich Order

• Conclusion

C. EVIDENTIARY BACKGROUND

[16] Messrs. Hudspeth and Smitherman supported their motion with an affidavit from Mr. Hudspeth. Mr. Hudspeth was cross-examined.

[17] Mr. Smitherman was also cross-examined.

[18] Messrs. Hudspeth and Smitherman cross-examined the self-represented Stefen Jetchick, who voluntarily identified himself as one of the Gay Zombies.

[19] Mr. Whatcott supported his cross-motion with an affidavit from Carol Swick, a legal assistant at the law firm of Findlay McCarthy PC, which, along with Lugosi Law Firm, is one of Mr. Whatcott’s co-counsel.

[20] Mr. Whatcott also supports his cross-motion with an affidavit from Kari Simpson, a British Columbia journalist who is one of Mr. Whatcott’s supporters and who volunteered to be a defendant Jane Doe. This offer was declined by Messrs. Hudspeth and Smitherman.

D. FACTUAL BACKGROUND

1. The Rudimentary Factual Background

[21] I shall begin the discussion of the facts by describing the proposed class action stripped down to its rudimentary material facts. This bare-bones approach is necessary because Messrs. Hudspeth’s and Smitherman’s Statement of Claim, motion record, and factums, and Mr. Whatcott’s motion records and factums are jeremiads, diatribes, ad hominies, polemics, and propaganda pieces far removed from proper pleadings and proper legal argument.

[22] A claim may be found to be frivolous, vexatious or an abuse of process when it asserts untenable pleas, contains insufficient material facts to support the allegations made, or is made for an extraneous or collateral purpose: Panalpina Inc. v. Sharma, [1988] O.J. No. 1401 (H.C.J.); Hainsworth v. Ontario, [2002] O.J. No. 1380 (S.C.J.). A pleading may be struck where the probative value of the pleading facts would be outweighed by the time and effort involved and the effort would seriously interfere with the fair and focused trial of the issues: Carney Timber Co. v. Pabedinskas, 2008 63163 (ON SC), [2008] O.J. No. 4818 (S.C.J.); George v. Harris, [2000] O.J. No. 1762 (S.C.J.); Brodie v. Thomson Kernaghan & Co., [2002] O.J. No. 1850 (S.C.J.); Green v. Transamerica Life Canada, 2015 ONSC 5430 (Master).

[23] In the immediate case, in addition to breaching rule 25.11, under which the court may strike out a pleading that may prejudice or delay the fair trial of the action or that is scandalous, frivolous, vexatious or an abuse of process of the court, much of the Plaintiffs’ Statement of Claim breaches rule 25.06(1), the predominant pleading rule, which provides that a pleading shall contain a concise statement of the material facts upon which the party relies for the claim or defence but not the evidence by which those facts are to be proved. Below, I shall provide a more detailed description of the factual background, including a description of the Statement of Claim, and I shall provide examples of both parties’ violations of the rules of pleading and of civil argument.

[24] The rudimentary facts are as follows.

[25] Mr. Hudspeth and Mr. Smitherman are gay men residing in the City of Toronto. They seek to be named representative plaintiffs for The Marchers and the Recipient Class. Mr. Smitherman seeks to be representative plaintiff for the Liberal Subclass.

[26] Mr. Hudspeth is a civil and human rights activist for Toronto’s LGTBTQ2SI Community.

[27] Mr. Smitherman is a member of the federal and provincial Liberal Parties. During a distinguished career of public service, he was an elected member of the Legislature, a cabinet minister, Deputy Premier, and a mayoral candidate for the City of Toronto. He, too, is an activist for the LGTBTQ2SI Community.

[28] Both Mr. Hudspeth and Mr. Smitherman have been long-time participants in the Pride Parade in Toronto; Mr. Smitherman since 1986. Before the 2016 Pride Parade, Mr. Smitherman helped organize a contingent of members of the federal and provincial Liberal Party to be Marchers. Among the Liberal Subclass were the Prime Minister of Canada, Justin Trudeau, and the Premier of Ontario, Kathleen Wynne. It was the first time that a Prime Minister marched in the Pride Parade.

[29] It shall be important to note that Messrs. Hudspeth and Smitherman have not been authorized to bring the proposed class action on behalf of Pride Toronto Inc., the organization that plans and manages the Pride Toronto Parade, nor have they been authorized to bring the action on behalf of the federal or provincial Liberal Parties. It shall also be important to note that Messrs. Hudspeth and Smitherman are not, themselves, a government body or public authority; they, rather, are private citizens bringing a proposed class action advancing common law claims on behalf of a collective, the LGTBTQ2SI Community.

[30] Mr. Whatcott grew up in Toronto. He now resides in Vancouver, British Columbia. He is a leader of an organization known as “Christian Truth Activists.” He is the administrator of a website www.freenorthamerica.ca. He is alleged to be a notorious hate monger having been found to be the distributor of hate speech in administrative law proceedings that culminated in a decision in the Supreme Court of Canada. See Saskatchewan (Human Rights Commission) v. Whatcott, supra.

[31] In 2016, posing as one Robert Clinton, Mr. Whatcott applied to be a Marcher in the 2016 Pride Toronto Parade, which is organized by Pride Toronto Inc., a non-profit corporation. Mr. Whatcott applied for a group known as the Gay Zombies Cannabis Consumers Association. He signed the Pride Participation Agreement on behalf of all the Zombies. The agreement is a license from Pride Toronto to participate in its Parade.

[32] Mr. Whatcott did not disclose to Pride Toronto that members of his organization, the Christian Truth Activists, were to be Marchers in the Parade and that the Gay Zombies were a bogus group. He falsely represented that the Gay Zombies were supporters of the LGTBTQ2SI Community.

[33] Contrary to the rules of Pride Toronto and the contract that he signed, Mr. Whatcott did not disclose the pamphlet that he planned to distribute at the Parade. He admits that he knew that the distribution of the pamphlets would not be approved.

[34] On July 3, 2016, wearing green costumes and face paint that obscured their identities, Mr. Whatcott and his Gay Zombies attended the Pride Toronto Parade, where they distributed 3,000 leaflets packaged as a “Zombie Safe Sex Package.” The leaflets had the headline "Gay Zombies want you to practice safe sex." The messages in the leaflets warned of the health risks and moral depravity of sexual conduct engaged in by gay men and encouraged gay men to repent and accept the Christian faith.

[35] Messrs. Hudspeth and Smitherman rely on the Supreme Court’s decision in Saskatchewan (Human Rights Commission) v. Whatcott, supra to raise an issue estoppel against Mr. Whatcott and the co-Defendants that the pamphlets distributed at the 2016 Pride Toronto Parade constituted hate speech.

[36] Mr. Hudspeth and Mr. Smitherman marched in the Parade as part of the Grand Marshall's party. Neither Mr. Hudspeth nor Mr. Smitherman received a pamphlet and learned about Mr. Whatcott’s participation in the Parade after the fact.

[37] After the Parade, on August 11, 2016, although they were not authorized by Pride Toronto to do so, Messrs. Hudspeth and Smitherman commenced a proposed class action on behalf of the LGTBTQ2SI Community against the Gay Zombies; namely the Defendants William Whatcott, his wife Joni Whatcott, and the pseudo-named Adam Zombie, Brian Zombie, Christopher Zombie, Douglas Zombie, Edward Zombie, and Frank Zombie, and against XYZ Corporation, Jane Does, and John Does, who are the pseudo-named financial backers of Mr. Whatcott.

2. A Summary of Mr. Hudspeth’s and Mr. Smitherman’s Statement of Claim

[38] What follows is a synopsis of Mr. Hudspeth’s and Mr. Smitherman’s 99-paragraph Statement of Claim.

[39] Paragraph 1 is the claim for relief. The major heads of relief are: (a) certification of the action as a class proceeding under the Class Proceedings Act, 1992; (b) injunctions restraining the Defendants from participating in future Pride Parades in Canada; (c) injunctions restraining the Defendants from distributing the pamphlets that they distributed at the 2016 Pride Toronto Parade; (d) damages of $50 million for the Marchers; (e) damages of $18 million for the Recipient Class; (f) damages of $10 million for the Liberal Subclass; and (g) $25 million for punitive damages.

[40] Paragraph 2 identifies Mr. Hudspeth and describes his background.

[41] Paragraph 3 identifies Mr. Smitherman and describes his background.

[42] Paragraphs 4 and 50-59 identify Mr. Whatcott and describe his life history, including his young years in foster care, his years living on the street as a drug addict, his own reports of having been abused and raped, his salvation in Christianity, his alleged fundamentalist anti-abortion, homophobic, belief system, his alleged campaign against the LGTBTQ2SI Community, which is described under the heading “Whatcott and his Homophobic Jihad,” his prosecution by the Saskatchewan Human Rights Tribunal for distribution of hate speech flyers, which culminated in Saskatchewan (Human Rights Commission) v. Whatcott, supra, a decision of the Supreme Court of Canada, finding him liable for hate speech.

[43] Pausing here, some of the allegations in paragraphs 50-59 are material facts, but much of the pleaded material is scandalous, prejudicial, and improper pleading, including pleading newspaper reports from The Huffington Post. These pleaded allegations are obviously aimed at embarrassing Mr. Whatcott and predisposing the court against him; visualize paragraphs 58 and 59, which state:

58. According to the Huffington Post, as soon as the Supreme Court's ruling was rendered, Whatcott announced that he would ignore the ruling that he violated human rights. He claimed that "God has called me to speak on these moral issues." In the same interview, he referred to the justices as "socialists" ... "who've butchered our law, or our tradition and free speech." He went on to say, according to the same article, "I'm not going to pay a lot of attention to it. I view this ruling as rubbish and I think that our seven Supreme Court justices are a disgrace."

59. True to his word, in 2014, Whatcott deceitfully entered the Vancouver Pride Parade as the Calgary Church of the Flying Spaghetti Monster. He and his supporters handed out 2,500 hate speech pamphlets disguised as free condoms. Whatcott has bragged about his dishonest and unlawful behaviour, justifying it as God's work.

[44] Paragraphs 58 and 59 are improper pleadings and should not be repeated in the Amended Statement of Claim should Messrs. Hudspeth and Smitherman decide to deliver a fresh as amended pleading.

[45] Paragraph 5 identifies Mr. Whatcott’s wife as being a member of the Gay Zombies.

[46] Using pseudo-names, paragraphs 6, 7, 8, 9, 10, and 11 identify Adam Zombie, Brian Zombie, Christopher Zombie, Douglas Zombie, Edward Zombie, and Frank Zombie as members of the Gay Zombies. The Gay Zombies marched in the 2016 Pride Toronto Parade wearing green bodysuits and face paint.

[47] Paragraph 14 provides the class and subclass definitions.

[48] Paragraphs 15 to 49 describe the historical significance of Toronto’s Pride Parade and are a polemic and jeremiad about the abysmal treatment of Canada’s LGTBTQ2SI Community from the arrival of Europeans in the 16th century and the introduction of Christianity to North America. Paragraph 15 begins the history of bigotry with the statement that the LGTBTQ2SI Community has been the target of discrimination ranging from hate speech to murder.

[49] The Statement of Claim chronicles the criminalization of buggery and alleges that the European colonizers of Canada engaged in cultural genocide against indigenous people, including killing Two Spirit people. It is pleaded that Canada pursued state-sponsored persecution of homosexuals including an increasing harsh and repressive agenda aimed at systemically suppressing the LGTBTQ2SI Community.

[50] In paragraphs 15 to 49, Messrs. Hudspeth and Smitherman allege that the state-supported persecution included the Supreme Court’s notorious ruling in Klippert v. The Queen, 1967 73 (SCC), [1967] S.C.R. 822. The pleading describes the resulting scandal in Canada following the decision. The paragraphs also describe events in the United States, including the “Stonewall Riots,” and demonstrations in New York, Chicago, and Los Angeles, and more events in Canada, including the 1980 Gay Picnic at Hanlan’s Point in Toronto. These events are alleged to have sparked and fueled the modern social movement for LGTBTQ2SI civil rights.

[51] These paragraphs (15 to 49) also describe events that prompted backlashes of anti-gay campaigns. The paragraphs mention: the 1975 firing of racing steward John Damien for being gay; the murder of a 12-year-old shoeshine boy by a sexual psychopath; the 1978 raids on the gay newspaper The Body Politic; the alleged police harassment of the Glad Day Bookstore; and the notorious bath house raids of the police action known as the “Operation Soap,” which is described in paragraph 28 of the Statement of Claim as follows:

28. February 5, 1981, Toronto experienced its own turning point in LGTBTQ2SI history. That night in a police action dubbed "Operation Soap," hundreds of police officers descended on three large Toronto gay bath houses. The operation resulted in the largest peacetime arrests to that point in Toronto's history. It was also an initiative marked by humiliating and homophobic treatment of detainees, and deliberate destructive vandalism by police officers. One bath house was so severely damaged by police officers armed with crow bars and other instruments that it was forced to close permanently.

[52] Pausing here, paragraph 28 is another example, and there are numerous other examples, of an improper pleading. There are no material facts pleaded in this polemic and jeremiad that are relevant to whether the putative Class Members have any causes of action against Mr. Whatcott. That 36 years ago, allegedly homophobic police officers deliberately destroyed a bath house with crow bars is irrelevant to the Class Members’ claims of intentional infliction of mental distress, etc., against Mr. Whatcott. The police officers are not parties to this action, Mr. Whatcott is not a police officer, and there is no reason for the court to determine in this class action the truth of the allegation that Operation Soap resulted in the largest peacetime arrest of members of the LGTBTQ2SI Community to that point in time.

[53] This is the type of pleading that was struck out in Resolute Forest Products Inc. v. 2471256 Canada Inc. (c.o.b. Greenpeace Canada), 2016 ONSC 5398 (Div. Ct.) in a defamation suit by a lumber company against an environmental advocacy group. The lumber company’s reply pleading asserting that the environmentalist and its associated groups around the world had for decades systemically defied the law was stuck out for including allegations that had nothing to do with the central issues in the case and that unnecessarily expanded the scope of the litigation making it unmanageable. The allegations were not material to the actual issues in the case and were highly prejudicial and of little probative valuable to the material issues.

[54] Paragraphs 15 to 49 also describe the inception and growth of the Pride Parade due to the contributions of activists and politicians, including the late Councillor Jack Layton, past-Mayor Barbara Hall, and past-Mayor Mel Lastman, and how the Parade grew from a small and unorganized protest march to a massive Parade with hundreds of thousands of spectators and participants. These paragraphs describe the trials and tribulations and setbacks and crises of the organization known as Pride Toronto, including such events as: (a) the funding cuts described in paragraph 38; (b) the political problems caused by the late Mayor Rob Ford’s antipathy to the Parade, described in paragraph 40; and (c) the political problems caused by the participation of the “Queers against Israeli Apartheid” group, described in paragraph 41. These paragraphs state:

38. In 2009, prominent Christian Conservative opponent of LGTBTQ2SI rights, Dr. Charles McVety, denounced federal government financial support for what he called the "sex Parade." In doing so, he improperly conflated homosexuality with pedophilia. As a result of lobbying by McVety and like-minded persons, the Conservative Harper Government cancelled a $400,000 annual grant to Pride Toronto under the Marquee Tourism program, despite a favourable review by the program itself. A Conservative MP made it clear that this was intended to reassure what he called the "pro-life and pro-family community", namely anti-gay Christian fundamentalists.

39. Pride's problems were compounded when Rob Ford was elected mayor of Toronto in 2010. Ford was a social conservative whose antipathy to Pride Toronto was manifested in his refusal to participate in any Pride Toronto activities including the Pride Parade, his refusal to participate in raising the rainbow flag at City Hall and his refusal to personally read Council's proclamation of Pride Week as his predecessors had done.

40. Pride Toronto was also accused of violating the City of Toronto's human rights policy by permitting a group to march called "Queers against Israeli Apartheid" ("Quaia"). The debate about Quaia and its participation in the Pride Parade caused great controversy and political divisions both within the LGTBTQ2SI communities and externally. Critics of Quaia mounted a sustained campaign against Pride Toronto to cripple it financially by persuading the City to withdraw its financial support and lobbying major sponsors such as TD Bank to end their financial assistance.

[55] Paragraphs 38, 40, and 41 have no relevance to the Class Members’ claims against Mr. Whatcott and his Gay Zombies and, once again, violate the rules of pleading. These paragraphs, amongst others, should not be repeated in the Amended Statement of Claim should Messrs. Hudspeth and Smitherman decide to deliver a fresh as amended pleading.

[56] Further still, with very few facts that are relevant background facts mixed in with abundant irrelevant allegations, paragraphs 15 to 49 also describe the revival and resuscitation of Pride Toronto as a vital LGTBTQ2SI institution. It is alleged that the revival came about when Pride Toronto’s Board of Directors agreed to the creation of a group of community leaders, “elders,” to form the Community Advisory Panel whose recommendations led to rules and guidelines to ensure that participants in the Parade complied with the City of Toronto’s anti-discriminatory policy. It is alleged that the rules and guidelines were designed to protect the LGTBTQ2SI Community’s rights of assembly and its own rights of freedom of expression. This is all explained in paragraphs 46 and 47, which state:

46. A central principle is that the Parade is to operate by Pride Toronto for the benefit of the diverse LGTBTQ2SI community. It is not a public forum in which everyone has the right to participate and deliver whatever message they choose. Pride Toronto itself has a right to freedom of expression, and to control access to the event. While the Parade has traditionally placed a high value on diversity and freedom of expression, and welcomes people with widely diverging political and religious views for example, Pride Toronto has a right to ensure that the messages delivered by participants are in harmony with the overall message of Pride Toronto.

47. In order to give effect to this principle, new rules were promulgated that were very clear. Pride Toronto reserved the right to refuse access to the Parade to anyone. All participants had to agree to identify themselves and provide an address for service. The names of proposed participants are published well in advance of the Parade, and there is a mechanism for any person to object to a proposed participant on the grounds that they are unlikely to comply with the rules based on their past conduct. In addition, this mechanism may be used to complain about conduct by participants that in fact violated the rules. All decisions are made by independent arbitrators.

[57] The revival of Pride Toronto is alleged to have garnered the support of Mayor John Tory, Toronto’s current mayor, and the support of Justin Trudeau, then just a Member of Parliament and then the leader of a minority party in Parliament. The politicians are described as “proud allies of the LGTBTQ2SI community.”

[58] Paragraphs 60 to 75 under the heading “The Unlawful Acts of the Defendants at the 2016 Pride Toronto Parade” describe the gathering of prominent Liberals as a marching contingent in the Parade including the Prime Minister, the Premier, Cabinet Ministers, Members of Parliament, Members of the Legislative Assembly, and openly gay Member of Parliament Randy Boissonault, and these paragraphs describe Mr. Whatcott’s “plan to deceitfully gain access to the Parade to distribute pamphlets containing hate speech regarding the Prime Minister and the other Liberals marching in the Parade.”

[59] Paragraphs 60-75 describe how Mr. Whatcott, posing as Robert Clinton, and his Gay Zombies clandestinely participated in the 2016 Gay Pride Parade allegedly in breach of his contract with Pride Toronto and how he distributed hate speech directed at members of the LGTBTQ2SI Community and defamed the Liberals who were marching in the Parade.

[60] The pamphlet distributed at the Parade is described in paragraphs 71 - 73 as follows:

71. The offensive literature showed graphic images of diseases which the defendants alleged are associated with the LGTBTQ2SI Community, and particularly gay men, including oral and anal genital warts and AIDS.

72. The offensive literature made statements including; " .... homosexuality is incompatible with human nature. Disease, death and confusion are the sad and sordid realities of the homosexual lifestyle." The offensive literature exposed people to hatred and vilification based on their sexual orientation, contrary to the Criminal Code of Canada, the City of Toronto anti-discrimination policy, and the contractually binding rules of the Pride Parade.

73. In addition, the offensive literature contained defamatory statements about the Liberal Subclass, expressly naming Prime Minister Justin Trudeau and Liberal Premier Kathleen Wynne. As he has often done in the past, Whatcott conflated homosexuality with pedophilia. He falsely accused Prime Minister Trudeau, Premier Wynne and other members of the Liberal Subclass of supporting and actively participating in child sexual abuse.

[61] Paragraphs 76 to 82 plead the tort of civil conspiracy, which is the claim advanced by the Marchers, as follows:

Class 1: The Marchers

76. The defendants committed unlawful acts directed at the Marcher Class, which unlawful acts the defendants knew, or ought to have known, in the circumstances would likely cause injury to the class and, as such, the defendants are each jointly and severally liable for the tort of civil conspiracy. Further, or alternatively, the predominant purpose of the acts was to injure the Marcher class and the defendants are jointly and severally liable for the tort of civil conspiracy.

Conspiracy to Injure

77. The defendants conspired to injure the Marcher class.

78. All the defendants led by Whatcott through unlawful means acted in concert, by agreement or with a common design to injure, embarrass, intimidate and promote hatred against the plaintiffs and the Marcher class.

79. The defendants' conduct was unlawful in that, inter alia, they breached their Pride Parade participation contract by distributing hateful messages in direct contravention of the Toronto Pride terms, the City of Toronto anti-discrimination policy and hate speech provisions of the Criminal Code.

80. The defendants fraudulently misrepresented themselves as supporters of the LGTBTQ2SI Community in order to gain registration as participants of the Toronto Pride Parade, but later distributed the offensive literature containing derogatory and hateful statements directed against the Marchers. In direct breach of their contract with Pride Toronto, the defendants intentionally failed to submit samples of the offensive literature to Pride Toronto upon registration.

81. By agreeing to provide funds for, assemble and distribute the offensive literature that contained falsehoods and hateful messages, which included, associating the plaintiffs and members of the Marcher class with diseases like AIDS, the defendants collectively agreed to injure the Marcher class.

82. The defendants knew or ought to have known that their conduct was unlawful and the contents of the offensive literature would cause harm and did cause harm to the Marcher class.

[62] Paragraphs 83 to 87 plead the tort of intentional infliction of mental distress, which is the claim advanced by the Recipient Class, as follows:

Class 2: The Recipients

83. The Recipient class pleads that the defendants took part in flagrant or outrageous conduct that was calculated to produce harm; resulting in provable mental illness or distress.

84. The funding, assembly and distribution of the offensive literature containing hateful messages against Recipients during the Pride Parade, a forum of celebration of the identity and achievements of the LGBT community, was extremely offensive and outrageous. The conduct amounted to reckless and wanton disregard for the health of the Recipients. In this context, the defendants' behaviour amounted to flagrant and outrageous behaviour that was intended to harm the Recipient class.

85. The defendants desired to produce harm to the Recipients, or in the alternative, the consequences were known by the defendants to be substantially certain to follow.

86. The defendants knew, or ought to have known, that the Recipients would be harmed by the defendants' hateful messages contained in the offensive literature. The offensive literature showed a derogatory photo of a same-sex couple, associated homosexuality with deceases like AIDS, HPV and genital warts, and conflated homosexuality with pedophilia. Further, the offensive literature stated that homosexuality is incompatible with human nature and that "disease, death and confusion are the sad and sordid realities of the homosexual lifestyle". The defendants knew, or ought to have known, that these messages would cause mental distress to the Recipients.

87. In fact, the defendants, in direct breach of their contract with Toronto Pride, intentionally concealed the pamphlets from the organizers of Pride Toronto prior to registration because they knew or ought to have known that the messages contained therein would be harmful to the recipients.

[63] Paragraphs 88 to 96 plead the tort of defamation, which is the claim advanced by the Liberal Subclass, as follows:

Liberal Subclass

88. On or about July 3, 2016, the defendants assembled and distributed over 3,000 pieces of offensive literature at the Pride Toronto Parade. The offensive literature was widely distributed among participants and spectators of the Parade.

89. Marchers associated with or publicly identifying themselves as members of a wide variety of political parties participated in the Pride Parade. However, the defendants chose to restrict their attacks to Prime Minister Trudeau, Premier Wynne, and the other Liberals who marched.

90. The offensive literature contained a number of defamatory statements that were calculated to cause damage to members of the Liberal Subclass.

91. Specifically, the defendants falsely and maliciously published the following defamatory words:

Justin (Trudeau) is a chronic attendee of homosexual pride Parades and is the leader of a party with a long and sordid history of homosexual activism and both enabling and actively participating in child sexual abuse.

Former Liberal Defence Minister Bill Graham sodomized a 15-year-old male prostitute by the name of Lawrence Metherel.

Lesbian Liberal Premier Kathleen and her buddy (who sat beside her at the Toronto homosexual Pride Parade), former Deputy Education Minister, now convicted child pornographer with an incest fetish, Benjamin Levin. Notwithstanding Liberal denials, Benjamin's paw prints are all over Ontario's perverted sex education curriculum telling impressionable six-year-olds they can switch their gender and 13-year-olds they can make decisions when to have anal sex. Wynne is ramming this perverted propaganda down parent's and children's throats even though thousands have taken to the streets protesting it.

92. The plaintiffs rely on the natural and ordinary meaning of the words which are prima facie defamatory and false.

93. In addition, the pamphlets contained images that by innuendo tend to lead the reader to believe that Justin Trudeau has, will, or could contract oral warts from engaging in public acts of oral sex during the Pride Parade.

94. The plaintiffs state that these defamatory and libellous statements go far beyond fair comment and are malicious and designed specifically to impugn the character of the members of the Liberal Subclass.

95. The plaintiffs state that the defamatory words have brought members of the subclass into ridicule and that they have suffered damage as a result.

96. The defendants acted with malice when publishing the defamatory statements, which entitles the subclass members to punitive and aggravated damages.

3. Additional Factual Background

(a) Introduction

[64] In addition to the factual background described above, both parties proffered evidence that they relied on in support of their respective motions and to resist the motion of their enemy. I shall describe this additional evidence in this part of my Reasons for Decision under a variety of headings about a variety of different matters.

(b) Mrs. Whatcott and Mr. Jetchick

[65] Although Joni Whatcott was originally named as a Defendant, it was subsequently discovered that she was not present at the Parade and the action against her is being discontinued. I shall strike the claim against her.

[66] After the claim in this action was commenced, Stefan Jetchick came forward and identified himself to the Plaintiffs as one of the Zombies. Mr. Jetchick advised Mr. Hudspeth’s and Mr. Smitherman’s lawyers that he did not distribute Mr. Whatcott’s pamphlet but his own materials. He said that he was not aware of the identities of the other Zombies but that Mr. Whatcott knew who they were. The action against Mr. Jetchick is being discontinued. I shall strike the claim against Frank Zombie.

(c) Saskatchewan (Human Rights Tribunal) v. Whatcott

[67] In the early 2000s, Mr. Whatcott began distributing pamphlets at various places across Canada. The pamphlets set out his opinions about the LGTBTQ2SI Community. In 2001 and 2002, he distributed four flyers in Regina and Saskatoon, Saskatchewan on behalf of the Christian Truth Activists.

[68] The first flyer (Flyer D), which was entitled "Keep Homosexuality out of Saskatoon's Public Schools!”, described dire consequences if information on homosexuality was added to the public-school curriculum, and it opposed the change to the curriculum.

[69] The second flyer (Flyer E), which was entitled "Sodomites in our Public Schools", linked disease and pedophilia to homosexuality, and it quoted biblical passages in support of the notion that homosexuality was a sin.

[70] The third and fourth flyers (Flyers F and G), which were identical, copied classified personal advertisements from homosexual magazines. These flyers contained the following phrases: (1) “Saskatchewan's largest gay magazine allows ads for men seeking boys!”; (2) “If you cause one of these little ones to stumble it would be better that a millstone was tied around your neck and you were cast into the sea”; and (3) “the ads with men advertising as bottoms are men who want to get sodomized. This shouldn't be legal in Saskatchewan!"

[71] Mr. Whatcott’s distribution of pamphlets in Saskatchewan prompted four persons to file complaints with the Saskatchewan Human Rights Commission. The complainants alleged that the flyers promoted hatred against individuals on the grounds of sexual orientation contrary to s. 14 of The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, which states:

14.(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation

(a) tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons, on the basis of a prohibited ground, of any right to which that person or class of persons is entitled under law; or

(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.

(2) Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject.

[72] The Commission held hearings and fined Mr. Whatcott and the Christian Truth Activists $17,500 and prohibited them from distributing the flyers or any similar material that promoted hatred against individuals based on their sexual orientation.

[73] Mr. Whatcott sought judicial review from the Saskatchewan Court of Queen’s Bench, and Justice Kovach upheld the decision of the Commission. There was an appeal to the Saskatchewan Court of Appeal. In the Court of Appeal, Mr. Whatcott denied that the pamphlets conveyed hatred or contravened s. 14 of the Saskatchewan Human Rights Code, and in the alternative, he argued that s. 14(1)(b) of the Code infringed his Charter rights. The Saskatchewan Court of Appeal (Justices Jackson, Richards and Hunter) ruled that s. 14(1)(b) was constitutional, but the Court held that the flyers did not meet the test for hatred and were not prohibited publications within the meaning of s. 14(1)(b) of the Code.

[74] There was a further appeal to the Supreme Court of Canada, where Justice Rothstein wrote the judgment for the Court (Chief Justice McLachlin, Justices Fish, Abella, and Cromwell, concurring).

[75] Striking out the words "ridicules, belittles or otherwise affronts the dignity of" in s. 14(1)(b) from the Saskatchewan Human Rights Code, the Supreme Court upheld the constitutionality of s. 14 of the Code, but the Court ruled that two of the four flyers (Flyers D and E) contained hate speech and upheld the ruling of the Commission with respect of those two flyers. The Court upheld the order restraining future distribution of similar pamphlets.

[76] The Supreme Court, however, held that Flyers F and G, while offensive, did not constitute hate speech because they did not contain expressions that a reasonable person, aware of the relevant context and circumstances, would find as exposing or likely to expose persons of same-sex orientation to detestation and vilification.

[77] More precisely, the Supreme Court upheld the decision of the Tribunal that the following six phrases in Flyer D constituted hate speech: (1) “... children ... learning how wonderful it is for two men to sodomize each other;” (2) “Now the homosexuals want to share their filth and propaganda with Saskatchewan's children;” (3) “degenerated into a filthy session where gay and lesbian teachers used dirty language to describe lesbian sex and sodomy to their teenage audience;” (4) “ex-Sodomites and other types of sex addicts who have been able to break free of their sexual bondage and develop wholesome and healthy relationships;” (5) “sodomites and lesbians who want to remain in their lifestyle and proselytize vulnerable young people that civil law should discriminate against them;” and (6) “Our children will pay the price in disease, death, abuse ... if we do not say no to the sodomite desire to socialize your children into accepting something that is clearly wrong.”

[78] The Supreme Court also upheld the decision of the Tribunal that the following seven phrases from Flyer E constituted hate speech: (1) “Sodomites are 430 times more likely to acquire AIDS and 3 times more likely to sexually abuse children!;” (2) “Born Gay? No Way! Homosexual sex is about risky and addictive behaviour!;” (3) “If Saskatchewan's sodomites have their way, your school board will be celebrating buggery too!;” (4) “Don't kid yourselves; homosexuality is going to be taught to your children and it won't be the media stereotypes of two monogamous men holding hands;” (5) “The Bible is clear that homosexuality is an abomination;” (6) “Sodom and Gomorrah was given over completely to homosexual perversion and as a result destroyed by God's wrath;” and (7) “Our acceptance of homosexuality and our toleration of its promotion in our school system will lead to the early death and morbidity of many children.”

[79] Justice Rothstein stated that the phrases of Flyers D and E combined many of the hallmarks of hatred identified in the case law. The expression in the flyers portrayed the targeted group as a menace that could threaten the safety and well-being of others, made references to respected sources (the Bible) to lend credibility to the negative generalizations, and used vilifying and derogatory representations to create a tone of hatred. The flyers delegitimized homosexuals by referring to them as filthy or dirty sex addicts and by comparing them to pedophiles, a traditionally reviled group in society. Justice Rothstein said that the repeated references to "filth", "dirty", "degenerated" and "sex addicts" or "addictive behaviour" emphasized the notion that those of same-sex orientation are unclean and possessed with uncontrollable sexual appetites or behaviour and conveyed the message that homosexuals, by virtue of their sexual orientation, are inferior, untrustworthy and seek to proselytize and convert children. The flyers vilified those of same-sex orientation by portraying them as child abusers or predators and expressly called for discriminatory treatment of those of same-sex orientation.

[80] Messrs. Hudspeth and Smitherman submit that the material distributed by Mr. Whatcott at the Pride Toronto Parade was similar or worse than the literature he distributed in Saskatchewan.

[81] In the discussion and analysis part of these Reasons for Decision, I shall have more to say about the Supreme Court’s decision in Saskatchewan (Human Rights Tribunal) v. Whatcott.

(d) Pride Toronto Inc. and the Pride Toronto Parade

[82] The Pride Toronto Parade is an activity of Pride Toronto Inc., which is a non-governmental organization with a political orientation. The 2016-2021 Strategic Plan of Pride Toronto reveals the goal of staying “true to our political roots.”

[83] Pride Toronto’s Parade is supported by a grant of $140,200 from the Government of Canada, a grant of $270,000 from the Province of Ontario, and $160,500 and $260,000 grants from the City of Toronto, which also provided city services at a cost of $729,364.40.

[84] The Pride Toronto rules and regulations are set out in Schedule “A” to these Reasons for Decision.

[85] Mr. Whatcott admits that, in applying to participate in the Parade, that he did not disclose his identity to Pride Toronto. He deposed that he believed that if he disclosed who he was, then he would have been barred from participating in the Parade.

[86] In the application form for Parade participation, the registrant was asked “What Pride Means to You,” and in the application, Mr. Whatcott wrote:

Pride: Pride is a time to be proud and to have fun. It is a time to acknowledge the great contributions gays, lesbians, trans, homosexuals and others have made to Canada and the world.

[87] In the application form for Parade participation, the registrant was asked to describe his contingent, and Mr. Whatcott wrote:

Our contingent will consist of zombies who are gay and who smoke pot. Our message will be to have fun and be what you like to be, gay/straight, zombie, or high. But be it responsibly and safely. We will have a banner that reads "Gay Zombies Cannabis Consumers Association."

(e) The Press Conference

[88] On August 12, 2016, Douglas Elliott and members of his law firm held a press conference at the Canadian Parliamentary Press Gallery in the Centre Block of the Parliament building complex. Mr. Elliott is a prominent Toronto lawyer who has acted for the LGTBTQ2SI Community. He is a member of proposed Class Counsel, the law firm Cambridge LLP.

[89] The purpose of the press conference was to announce Messrs. Hudspeth’s and Smitherman’s proposed class action against Mr. Whatcott, his Gay Zombies, and his unknown financial supporters.

[90] At the press conference, Mr. Elliott stated that Mr. Whatcott was a wicked man that promoted hatred. Mr. Elliott said that Mr. Whatcott had defamed the Prime Minister, the Premier of Ontario, and other Liberals who had participated in the Parade.

[91] At the press conference, Mr. Hudspeth stated that they wanted to discover Mr. Whatcott’s supporters and to punish them with a $100 million judgment.

[92] At the press conference, Mr. Smitherman stated that he was disgusted by Mr. Whatcott’s bigotry and that they wanted to “stamp this hateful individual out.” Mr. Smitherman stated:

I have been a life-long Liberal from 1998 on. I was the catalyst for organizing a very, very strong Liberal presence, especially in the Toronto Gay Pride Parade and it disgusts me further that this individual [Whatcott] takes aim at people based on their roles, their government responsibilities, and their partisan identification…. We want to do all we can to stamp this hateful individual out.

(f) Mr. Whatcott’s Response to the Proposed Class Action

[93] Having brought a pleadings motion to challenge the propriety of the Statement of Claim, Mr. Whatcott has not delivered a Statement of Defence, but in his factum and in the affidavit material, Mr. Whatcott denies that he is a hateful individual, a promoter of hate, or a homophobe that is afraid of homosexuals or treats them badly. He describes himself as an individual who utilizes his constitutional freedoms by distributing written leaflets warning others of the dangers of a gay lifestyle that jeopardizes health and strains the healthcare system of Canada.

[94] Mr. Whatcott says that he politically opposes moral debauchery by exposing the private immoral behaviour of individuals that have been entrusted with public office and who were scandalized by deviant sexual behaviour that resulted in criminal convictions. He says that his Christian ministry is to boldly speak the truth in love, inviting those individuals suffering from a gay lifestyle to repent of their choice and to make a better choice and become Christians who are no longer gay.

[95] After the Parade, no criminal charges were laid against Mr. Whatcott for hate speech and no proceedings were brought pursuant to Ontario’s Human Rights Code, R.S.O. 1990, H.19. No proceedings were brought for contempt for allegedly violating the order made in Saskatchewan (Human Rights Commission) v. Whatcott. No proceedings were commenced against him by the City of Toronto or by Pride Toronto, and no individual actions for defamation were brought against him.

[96] After the press conference, Mr. Whatcott was asked to reveal the identities of the co-Defendants, the Gay Zombies and his financial supporters, but he has refused to do so.

E. DISCUSSION AND ANALYSIS

1. Mr. Whatcott’s Arguments

[97] Mr. Whatcott submits that Messrs. Hudspeth’s and Smitherman’s action is an abuse of process and should be dismissed pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. 43 (Prevention of proceedings that limit freedom of expression on matters of Public Interest). He submits that Messrs. Hudspeth’s and Smitherman’s class action is being used to silence and ruin political opponents and their anonymous supporters who lawfully exercise their constitutional rights, including freedom of expression. He says that their factum is an example of hate speech against him.

[98] Mr. Whatcott submits that the personal attack against him in the Statement of Claim, and even more so in the Plaintiffs’ factum, is defamatory and it is Messrs. Hudspeth and Smitherman who are the true hate mongers. Mr. Whatcott disputes the insinuations that he is a convicted felon, in contempt of the Supreme Court’s order, or a religiously motivated terrorist at war with the LGTBTQ2SI Community. He denies that he is a homophobe, a jihadist, or a promoter of violence and hatred, and says he is an individual who exercises his constitutional freedoms to warn others of the dangers of a gay lifestyle that strains the healthcare system and to warn and expose the debauchery and immoral behaviour of public officials.

[99] Mr. Whatcott denies any hate speech, and he submits that his message at the Parade was consistent with and supportive of efforts by gay members of the Anglican and United churches to become Christians and to fully participate in the religious rites, sacraments, and offices in those and other Christian denominations. He says that his message was similar to the message delivered by members of the gay community who lobby for increased healthcare funding or similar to the communications of the Canadian AIDS Society, the City of Toronto, the Department of Public Health, or the Centers for Disease Control and Prevention made to combat diseases associated with rampant gay sexual practices.

[100] Mr. Whatcott denies that there is any issue estoppel arising from the Supreme Court’s decision in Saskatchewan (Human Rights Commission) v. Whatcott. He says that the parties, context, and issues in that case are different from those in the immediate case. He submits that the provincial human rights’ statutes are different in Saskatchewan and Ontario and that the flyers in the Saskatchewan case and the pamphlets in the immediate case are different. In the former case, he says, the message focused on the promotion of homosexuality in the public schools and in the immediate case, the message focused on the political alliance between the governing Liberal Parties of Canada and Ontario and the LGBT subculture and their mutual political agenda.

[101] Mr. Whatcott argues that if he had not clandestinely applied to be a Marcher, he (and his Gay Zombies) would have been barred from the Parade in contravention of his Charter protected right to freedom of association and his rights of freedom of expression. He submits that the Pride Parade is a political event or gathering and that by their participation, the Prime Minister and the Premier are making the political statement that the Liberal Party supports a gay lifestyle and that he and the Gay Zombies’ message was political speech providing a counterpoint to the political views of the Marchers in the Parade.

[102] In his factum under the heading “The Misconduct of the Liberal Parties of Canada and Ontario”, Mr. Whatcott submits that the Liberal Parties of Canada and Ontario are the silent plaintiffs of the class action and that they cannot do indirectly what they cannot do directly, which is to ban freedom of expression critical of public policy.

[103] Mr. Whatcott submits that the Gay Zombies’ distribution of the leaflets was protected by the Charter rights of: (a) freedom of conscience and religion (s. 2(a) of the Charter); (b) freedom of thought, belief, opinion, and expression (s. 2(b) of the Charter); (c) freedom of peaceful assembly (s. 2(c) of the Charter); (d) freedom of association (s. 2(d) of the Charter); and (e) the right to life, liberty, and security of the person (s. 7 of the Charter). He submits that the Plaintiffs, by their proposed class action, are contravening his Charter protected rights. He submits that Messrs. Hudspeth and Smitherman are using a class action to silence and financially ruin political opponents who lawfully exercise their constitutional rights and this is an abuse of process.

[104] In an argument supporting his anti-SLAPP motion and also aimed at dismissing all of the tort claims advanced by the Marchers, the Liberal Subclass, and the Recipient Class, Mr. Whatcott argues that public debate at political events ought to be encouraged in a healthy constitutional democracy and that open, vigorous and robust discussion is the paramount constitutional value that is protected, and freedom of expression outdoes any civil claim of hurt feelings caused by factual, honest debate of controversial topics that may offend or disgust others. In paragraph 55 of his factum, he states:

55. It is an abuse of process and contrary to public policy to claim for hurt feelings that in turn trigger mental distress, by simply being exposed to learn about an opposing viewpoint at a political event. There is no safe zone at a public political event, which by its very nature in a free and democratic society invites opposing viewpoints. To allow such a claim in this context is to open the floodgates for all members of society to litigate when exposed to offensive ideas that upset intolerant close-minded people.

[105] Mr. Whatcott submits that his activities at the Pride Parade were in the public interest. At paragraph 120 of his factum, he states:

120. The objective of the leaflet distribution by Whatcott was to provide an expression in the public interest to educate the community, by providing a “fact check” to show that a gay lifestyle could lead to serious moral, societal and health risks that jeopardize the general welfare of all people and that there is an enormous financial cost to all taxpayers just to try to save lives and to maintain the health of those who participate in a promiscuous and hedonistic lifestyle. Nothing communicated by Whatcott was untrue, although his message was uncomfortable and disturbing, and presumably, in the eyes of the Plaintiffs, was hateful and politically incorrect. Whatcott’s expression was not hateful, but factual. His expression was intended to stimulate informed public political debate. The intended audience of the communication were observers and participants in the Pride Parade. ….

[106] In the alternative to the above arguments, Mr. Whatcott submits that the Plaintiffs have failed to properly plead a reasonable cause of action. Mr. Whatcott submits that defamation is a personal, not a collective, cause of action. He then argues that the tort of civil conspiracy fails by the doctrine of merger because with the failure of the defamation claim there is no unlawful means. He submits that the deception of participating in the Parade by false pretenses merged with the failed tort of defamation. He submits that the tort of intentional infliction of mental distress cannot overcome his Charter protected right of freedom of expression.

2. Messrs. Hudspeth’s and Smitherman’s Arguments

[107] In response to Mr. Whatcott’s motion to have their proposed class action dismissed as an abuse of process or pursuant to the anti-SLAPP provisions of the Courts of Justice Act, Messrs. Hudspeth and Smitherman assert that it is Mr. Whatcott’s motion that is an abuse of process. They submit that he has the dubious distinction of being the only Canadian to have been found guilty of distributing anti-gay hate literature by a unanimous Supreme Court of Canada and that he is seeking to re-litigate issues that have been decided against him and affirmed by the highest court in the land. Therefore, his motion is abusive as res judicata. They submit that Mr. Whatcott and his co-conspirators are estopped from re-litigating the issue decided by the Supreme Court of Canada in Saskatchewan (Human Rights Commission) v. Whatcott, supra that Mr. Whatcott’s pamphlets are hate speech not protected by freedom of expression.

[108] Further, Messrs. Hudspeth and Smitherman submit that Mr. Whatcott is not protected by the anti-SLAPP provisions of the Courts of Justice Act because these provisions do not apply to protect hate speech, especially hate speech that has been characterized as such by the Supreme Court of Canada. They say that hate speech and defamation are never an expression in the public interest.

[109] Further still, they submit that Mr. Whatcott’s arguments that rely on a citizen’s rights under the Charter of Rights and Freedoms are misconceived because they are private citizens, and not state actors governed by the Charter. In any event, Messrs. Hudspeth and Smitherman say that the fact that the Pride Parade was a political event or that it took place on public streets is irrelevant because there is no right to distribute hate literature or defamatory publications on a public street or in a public place.

[110] Messrs. Hudspeth and Smitherman submit that Mr. Whatcott has repeatedly victimized the LGTBTQ2SI Community, which is a vulnerable and frequently victimized community. They submit that the Supreme Court has ruled that the LGTBTQ2SI Community has been harmed by Mr. Whatcott's unlawful hate literature but these rulings have failed to deter him from harming the LGTBTQ2SI Community. They assert that the law, the administration of justice, government authorities, and particularly the police, have failed to protect the LGTBTQ2SI Community. They submit that the LGTBTQ2SI Community deserves the protection of this court from Mr. Whatcott's ongoing and deliberately harmful acts. They say that their proposed class action is a means of using the common law to achieve the goal of redress for the harm caused by Mr. Whatcott and to prevent future harm to the LGTBTQ2SI Community.

[111] Underlying Messrs. Hudspeth’s and Smitherman’s proposed class action for civil conspiracy to injure, defamation, and intentional infliction of mental distress are the ideas that the Marchers, the Liberal Subclass, and the Recipient Class have been the victims of Mr. Whatcott’s hate speech and that the criminal law and public law have been inadequate to protect the LGTBTQ2SI Community. Underlying their action is the notion of advancing the civil law to respond to hate speech aimed at a vulnerable group, like the LGTBTQ2SI Community.

[112] Messrs. Hudspeth and Smitherman submit, if necessary, that the common law should be developed as a means to provide a civil remedy for hate speech. At paragraphs 120 and 122 of their factum, they state:

120. It is respectfully submitted that the defamatory remarks contained in the literature that Whatcott and the Gay Zombies distributed are actionable per se, that is, actionable without proving damages. If it is found that Defamation is currently a civil remedy available to an individual alone, then it ought to be incrementally expanded to allow a clear and definable group to avail itself of this remedy in the limited context of enforcing the right not to be subjected to hate speech.

121. Whatcott's conduct and his open defiance of the Supreme Court of Canada decision in Whatcott illustrate the need to expand access to a civil remedy for the purpose of challenging hate speech.

[113] As I shall discuss further below, given the Supreme Court’s decision in Saskatchewan (Human Rights Commission) v. Whatcott, there is merit to Messrs. Hudspeth’s and Smitherman’s argument that the LGTBTQ2SI Community has been the victim of Mr. Whatcott’s hate speech in the past and that his messages are not protected by freedom of expression. There is also merit in their argument that the LGTBTQ2SI Community may have been victimized again by what occurred at the 2016 Pride Toronto Parade, especially if Mr. Whatcott and his privies are estopped from denying that the pamphlets distributed at the Parade constitute hate speech. However, as discussed below, there are problems with their argument that the criminal law and public law have been inadequate to protect the LGTBTQ2SI Community and that this inadequacy justifies an extension of the common law to support a class action in the immediate case.

[114] On their motion for a Norwich order, Messrs. Hudspeth and Smitherman submit that they do not know the identities of the Gay Zombies and of Mr. Whatcott’s financial supporters. They submit that the court has the jurisdiction and ought to compel Mr. Whatcott to identify his co-Defendants because he is the only source of this information and because the information is necessary to detail their cause of action. Further, they submit that it is a principle of natural justice that all defendants be served with the Statement of Claim and be notified of the hearing that may have an adverse impact on them so that they have the opportunity to prepare a defence and be heard. Messrs. Hudspeth and Smitherman submit that it will delay and disrupt the progress of the class action if they must wait until after the certification of the action and discoveries to learn the identities of the co-Defendants.

3. The Canadian Charter of Rights and Freedoms, the Common Law, Hate Speech, and Freedom of Expression

(a) The Charter, Hate Speech and Freedom of Expression

[115] For several reasons, it is necessary to understand the law associated with the Charter, hate speech, and freedom of expression. I summarize that law in this section of my Reasons for Decision.

[116] Mr. Whatcott argues that Messrs. Hudspeth and Smitherman, whom he treats as if they were a surrogate or an adjunct of Pride Toronto, which he characterizes as a government actor, are contravening his Charter protected rights of freedom of expression and freedom of association by their proposed class action for civil conspiracy to injure, defamation, and intentional infliction of mental distress. His factum is copiously infused with a discussion about his Charter protected rights.

[117] As I shall now explain, there are four fundamental problems with for Mr. Whatcott’s Charter arguments. First, Messrs. Hudspeth and Smitherman are not surrogates of Pride Toronto. Second, even if Messrs. Hudspeth and Smitherman were surrogates of Pride Toronto, Pride Toronto is not a government actor subject to Charter scrutiny. Third, as private citizens, Messrs. Hudspeth and Smitherman are not subject to the Charter. Fourth, the Charter does not provide protection for hate speech and the case law recognizes that the suppression of hate speech, while an interference with freedom of expression, is an infringement demonstrably justified in a free and democratic society.

[118] Addressing these problems in Mr. Whatcott’s arguments more precisely, Messrs. Hudspeth and Smitherman are advancing common law claims on behalf of a collective of citizens, and while the common law is informed by Charter values, strictly speaking, the Charter does not apply to the proposed class action or to Mr. Whatcott’s defences to the claims being advanced against him. The Charter exists to protect the rights of individuals and groups from government interference; the Charter does not apply to the common law unless the common law is the basis of some governmental action: McKinney v. University of Guelph, 1990 60 (SCC), [1990] 3 S.C.R. 229; Retail Wholesale and Department Store Union v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573; Hill v. Church of Scientology, 1995 59 (SCC), [1995] 2 S.C.R. 1130. Private individuals do not owe each other constitutional duties. Messrs. Hudspeth and Smitherman are distinct from Pride Toronto, which, in any event, is a non-governmental organization not a government organization and, as private citizens, they do not owe Mr. Whatcott constitutional duties.

[119] Assuming that the Charter did apply to the circumstances of the immediate case, there is no doubt that freedom of expression is an extraordinarily important freedom. The Supreme Court of Canada has frequently held that freedom of expression is of crucial importance to a democratic society: Reference re Alberta Legislation, 1938 1 (SCC), [1938] S.C.R. 100; R. v. Boucher, 1950 2 (SCC), [1951] S.C.R. 265; Switzman v. Elbling, 1957 2 (SCC), [1957] S.C.R. 285; Ford v. Québec (Procureur général), 1988 19 (SCC), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Québec (Procureur général), 1989 87 (SCC), [1989] 1 S.C.R. 927; Edmonton Journal v. Alberta (Attorney General), 1989 20 (SCC), [1989] 2 S.C.R. 1326; R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697; Canada (Human Rights Commission) v. Taylor, 1990 26 (SCC), [1990] 3 S.C.R. 892; Committee for the Commonwealth of Canada v. Canada, 1991 119 (SCC), [1991] 1 S.C.R. 139; R. v. Butler, 1992 124 (SCC), [1992] 1 S.C.R. 452; R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731; R. v. Sharpe, 2001 SCC 2.

[120] However, freedom of expression is not unfettered. In Halton Hills (Town) v. Kerouac, [2006] O.J. No. 1473 (S.C.J.), at para. 26, Justice Corbett makes this point succinctly:

26. Must free speech be entirely unfettered to be truly free? No: freedom of speech, like all other freedoms, is constrained to recognize other important rights. Laws against hate speech limit free speech to protect people from persecution on the basis of a group affiliation: Criminal Code, ss. 318-319; R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697. The law of defamation limits free speech to protect people from untrue and damaging statements made about them. Laws against sedition may limit free speech that advocates the violent overthrow of the state: to the extent that this speech is fettered, it is on the basis that society as a whole may guard against its own continued existence: Criminal Code, ss. 59-62.

[121] The right to freedom of expression is not absolute and limitations of freedom of expression may be justified under s. 1 of the Charter. See: Irwin Toy Ltd. v. Québec (Procureur général), supra; R. v. Keegstra, supra; Canada (Human Rights Commission) v. Taylor, supra; R. v. Butler, supra; R. v. Sharpe, supra; Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2.

[122] Determining the boundaries of the limits that may be lawfully imposed on freedom of expression by legislative provisions prohibiting the promotion of hatred or prohibiting hate speech have been considered by the Supreme Court of Canada in the context of the Criminal Code: R. v. Keegstra, supra; R. v. Andrews, 1990 25 (SCC), [1990] 3 S.C.R. 870; R. v. Lucas, 1998 815 (SCC), [1998] 1 S.C.R. 439; R. v. Krymowski, 2005 SCC 7. In R. v. Lucas, supra, the issue was the constitutionality of the Criminal Code's offence of defamatory libel, which makes it an offence to publish material that was known to be false and that would expose the victim to hatred, contempt or ridicule. The Court held that the publication of defamatory libels was an activity that was protected by s. 2(b) of the Charter, but the Court upheld the prohibition as a justifiable means of protecting reputation from false attack. Justice Cory for the majority commented at paragraph 94 that defamatory libel, consisting as it did of deliberate and harmful lies, was "so far removed from the core values of freedom of expression that it merits but scant protection." Justice Cory stated at paragraphs 92-93:

92. In Hill supra [Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130], a similar conclusion was reached with respect to defamatory statements. At p. 1174, it was said that:

... defamatory statements are very tenuously related to the core values which underlie s. 2(b). They are inimical to the search for truth. False and injurious statements cannot enhance self-development. Nor can it ever be said that they lead to healthy participation in the affairs of the community. Indeed, they are detrimental to the advancement of these values and harmful to the interests of a free and democratic society.

93. Most certainly defamatory libel is far from and indeed inimical to the core values of freedom of expression. It would trivialize and demean the magnificent panoply of rights guaranteed by the Charter if a significant value was attached to the deliberate recounting of defamatory lies that are likely to expose a person to hatred, ridicule or contempt.

[123] The constitutionality of statutorily imposed limitations on freedom of expression has been considered in the context of human rights legislation. See: Canada (Human Rights Commission) v. Taylor, 1990 26 (SCC), [1990] 3 S.C.R. 892; Saskatchewan (Human Rights Commission) v. Whatcott, supra, discussed above and again below.

[124] In Canada (Human Rights Commission) v. Taylor, supra the Supreme Court considered s. 13(1) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, which prohibits as a discriminatory practice telephone communications likely to expose persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination. The Supreme Court ruled that s. 13(1) was constitutional as a reasonable limitation on freedom of expression. The analysis of what counts for hate speech in the Taylor case has been revised by the Court’s decision in Saskatchewan (Human Rights Commission) v. Whatcott, supra, discussed further below.

[125] To foreshadow the discussion below, Mr. Whatcott’s arguments to have the Plaintiffs’ action dismissed based on the Canadian Charter of Rights and Freedoms fail because the Charter does not apply to litigation between private citizens and because the common law, which must be developed in accord with Charter values, has already taken into account freedom of expression, which, in any event, is not an unfettered or absolute right or unbridled freedom.

(b) The Legal Nature of Hate Speech

[126] As background to several arguments discussed below, it is necessary to have an understanding of the legal nature of hate speech.

[127] In Saskatchewan (Human Rights Commission) v. Whatcott, supra, the Supreme Court held that with some modifications or adjustments, the definition of "hatred" set out in Canada (Human Rights Commission) v. Taylor, supra provided a workable approach to interpreting the word "hatred" as it is used in legislative provisions prohibiting hate speech. Justice Rothstein (at paragraph. 59) said that where the term "hatred" is used in the context of a prohibition of expression in human rights legislation, it should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.

[128] At paragraphs 55-58, he said that in determining whether an expression constituted hate speech, a court should employ three principles; he stated:

55. As will be apparent from the preceding discussion, in my view the Taylor definition of "hatred", with some modifications, provides a workable approach to interpreting the word "hatred" as it is used in prohibitions of hate speech. The guidance provided by Taylor should reduce the risk of subjective applications of such legislative restrictions, provided that three main prescriptions are followed.

56. First, courts are directed to apply the hate speech prohibitions objectively. In my view, the reference in Taylor to "unusually strong and deep-felt emotions" (at p. 928) should not be interpreted as imposing a subjective test or limiting the analysis to the intensity with which the author of the expression feels the emotion. The question courts must ask is whether a reasonable person, aware of the context and circumstances surrounding the expression, would view it as exposing the protected group to hatred.

57. Second, the legislative term "hatred" or "hatred or contempt" is to be interpreted as being restricted to those extreme manifestations of the emotion described by the words "detestation" and "vilification". This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects.

58. Third, tribunals must focus their analysis on the effect of the expression at issue. Is the expression likely to expose the targeted person or group to hatred by others? The repugnancy of the ideas being expressed is not, in itself, sufficient to justify restricting the expression. The prohibition of hate speech is not designed to censor ideas or to compel anyone to think "correctly". Similarly, it is irrelevant whether the author of the expression intended to incite hatred or discriminatory treatment or other harmful conduct towards the protected group. The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objectives to reduce or eliminate discrimination.

[129] Earlier in his judgment, Justice Rothstein elaborated on the notion that hate speech is characterized by language that has the effect of subjecting a person to “detestation”, “vilification” and “contempt.” He stated at paragraphs 41 and 43:

41. In my view, "detestation" and "vilification" aptly describe the harmful effect that the Code seeks to eliminate. Representations that expose a target group to detestation tend to inspire enmity and extreme ill-will against them, which goes beyond mere disdain or dislike. Representations vilifying a person or group will seek to abuse, denigrate or delegitimize them, to render them lawless, dangerous, unworthy or unacceptable in the eyes of the audience. Expression exposing vulnerable groups to detestation and vilification goes far beyond merely discrediting, humiliating or offending the victims.

42. …. in my view the term "hatred" in the context of human rights legislation includes a component of looking down on or denying the worth of another. The act of vilifying a person or group connotes accusing them of disgusting characteristics, inherent deficiencies or immoral propensities which are too vile in nature to be shared by the person who vilifies. Even without the word "contempt" in the legislative prohibition, delegitimizing a group as unworthy, useless or inferior can be a component of exposing them to hatred. Such delegitimization reduces the target group's credibility, social standing and acceptance within society and is a key aspect of the social harm caused by hate speech.

[130] At paragraphs 44 and 45 of his judgment, Justice Rothstein adopted examples from human rights tribunal jurisprudence to illustrate examples of hate speech; he stated:

44. In the years following Taylor, there has been considerable human rights jurisprudence and academic commentary about what constitutes hate speech. The types of expression and devices used to expose groups to hatred were summarized as the "hallmarks of hate" enumerated in Warman v. Kouba, 2006 CHRT 50, at paras. 24-81. Hate speech often vilifies the targeted group by blaming its members for the current problems in society, alleging that they are a "powerful menace" (para. 24); that they are carrying out secret conspiracies to gain global control (Citron v. Zündel (No. 4) (2002), 2002 78205 (CHRT), 41 C.H.R.R. D/274 (C.H.R.T.)); or plotting to destroy western civilization (Taylor). Hate speech also further delegitimizes the targeted group by suggesting its members are illegal or unlawful, such as by labelling them "liars, cheats, criminals and thugs" (Citron, at para. 140); a "parasitic race" or "pure evil": Warman v. Tremaine (No. 2), 2007 CHRT 2, 59 C.H.R.R. D/391, at para. 136.

45. Exposure to hatred can also result from expression that equates the targeted group with groups traditionally reviled in society, such as child abusers, pedophiles (Payzant v. McAleer (1994), 1994 2035 (CHRT), 26 C.H.R.R. D/271 (C.H.R.T.), aff'd (1996), 1996 4026 (FC), 26 C.H.R.R. D/280 (F.C.T.D.)), or "deviant criminals who prey on children": Warman v. Northern Alliance, 2009 CHRT 10, at para. 43. One of the most extreme forms of vilification is to dehumanize a protected group by describing its members as animals or as subhuman. References to a group as "horrible creatures who ought not to be allowed to live" (Northern Alliance, at para. 43); "incognizant primates", "genetically inferior" and "lesser beasts" (Center for Research-Action on Race Relations v. www.bcwhitepride.com, 2008 CHRT 1, at para. 53); or "sub-human filth" (Warman v. Winnicki (No. 2), 2006 CHRT 20, 56 C.H.R.R. D/381, at para. 101) are examples of dehumanizing expression that calls into question whether group members qualify as human beings.

[131] Later in his judgment at paragraphs 85-95, Justice Rothstein made it clear that derogatory and insensitive words that criticize, insult, belittle, ridicule, offend, or affront the dignity of a vulnerable group are not synonymous with hatred. At paragraphs 90-91, he stated:

90. Expression criticizing or creating humour at the expense of others can be derogatory to the extent of being repugnant. Representations belittling a minority group or attacking its dignity through jokes, ridicule or insults may be hurtful and offensive. However, for the reasons discussed above, offensive ideas are not sufficient to ground a justification for infringing on freedom of expression. While such expression may inspire feelings of disdain or superiority, it does not expose the targeted group to hatred.

91. There may be circumstances where expression that "ridicules" members of a protected group goes beyond humour or satire and risks exposing the person to detestation and vilification on the basis of a prohibited ground of discrimination. In such circumstances, however, the risk results from the intensity of the ridicule reaching a level where the target becomes exposed to hatred. While ridicule, taken to the extreme, can conceivably lead to exposure to hatred, in my view, "ridicule" in its ordinary sense would not typically have the potential to lead to the discrimination that the legislature seeks to address.

[132] The law recognizes that genuine hate speech causes harm. In R. v. Keegstra, supra, in addition to concluding that hate speech was very harmful to society at large, Chief Justice Dickson found that hate speech caused grave psychological harm and grave social consequences to the individual members of the targeted group. In Saskatchewan (Human Rights Commission) v. Whatcott, supra, at paragraph 74, Justice Rothstein said that hate speech lays the groundwork for attacks on vulnerable groups ranging from discrimination, to ostracism, to segregation, to deportation, to violence and, in the most extreme cases, to genocide. At paragraph 79, he stated that hate speech perpetuates historical prejudice and stereotypes that harm the civil rights of the vulnerable group. At paragraphs 75 and 76, Justice Rothstein stated:

75. Hate speech is not only used to justify restrictions or attacks on the rights of protected groups on prohibited grounds. As noted by Dickson C.J., at p. 763 of Keegstra, hate propaganda opposes the targeted group's ability to find self-fulfillment by articulating their thoughts and ideas. It impacts on that group's ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy. Indeed, a particularly insidious aspect of hate speech is that it acts to cut off any path of reply by the group under attack. It does this not only by attempting to marginalize the group so that their reply will be ignored: it also forces the group to argue for their basic humanity or social standing, as a precondition to participating in the deliberative aspects of our democracy.

76. To use an example related to the present case, the suggestion that homosexual conduct should not be discussed in schools because homosexuals are pedophiles requires the protected group to first defeat the absolutist position that all homosexuals are pedophiles in order to justify a level of societal standing that would then permit participation in the larger debate of whether homosexual conduct should be discussed in schools. In this way, the expression inhibits the protected group from interacting and participating in free expression and public debate.

[133] For present purposes, it is important to note that Justice Rothstein emphasized that although hate speech caused harm to the individual members of the vulnerable group, it was the suppression of the harm caused to society, not the harm to individual members of the vulnerable group, that justified an infringement on freedom of expression. Thus, he stated at paragraphs 80 and 82:

80. Therefore, the question of whether a restriction on hate speech is rationally connected to the legislative goal of reducing discrimination must focus on the group rather than on the individual and depends on demonstrating that the likely harm is to the group rather than an individual alone. Hate speech seeks to marginalize individuals based on their group characteristics. As such, in order to satisfy the rational connection requirement, the expression captured under legislation restricting hate speech must rise to a level beyond merely impugning individuals: it must seek to marginalize the group by affecting its social status and acceptance in the eyes of the majority.

81. Societal harm flowing from hate speech must be assessed as objectively as possible. The feelings of the publisher or victim are not the test: Owens (C.A.), at paras. 58-60. While the emotional damage from hate speech is indeed troubling, protecting the emotions of an individual group member is not rationally connected to the overall purpose of reducing discrimination. While it would certainly be expected that hate speech would prompt emotional reactions from members of the targeted group, in the context of hate speech legislation, these reactions are only relevant as a derivative effect of the attack on the group. As a derivative effect, these are not sufficient to justify an infringement of s. 2(b). Instead, the focus must be on the likely effect of the hate speech on how individuals external to the group might reconsider the social standing of the group. Ultimately, it is the need to protect the societal standing of vulnerable groups that is the objective of legislation restricting hate speech.

[134] In Saskatchewan (Human Rights Commission) v. Whatcott, Justice Rothstein also explained that political speech, public discourse, or speech about matters of public interest and debate is not immune from an enquiry as to whether it constituted hate speech. While political expression contributes to democracy by encouraging the exchange of opposing views, hate speech crosses a line and is antithetical to reasoned discourse because it marginalizes and sidelines the targeted group and makes it difficult or impossible for its members to respond and thus hate speech stifles and does not contribute to civil discourse. Justice Rothstein stated at paragraph 119:

119. The polemicist may still participate on controversial topics that may be characterized as "moral" or "political". However, words matter. In the context of this case, Mr. Whatcott can express disapproval of homosexual conduct and advocate that it should not be discussed in public schools or at university conferences. Section 14(1)(b) only prohibits his use of hate-inspiring representations against homosexuals in the course of expressing those views. As stated by Alito J. in dissent in Snyder v. Phelps, 131 S. Ct. 1207 (2011), at p. 1227:

... I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected.

[135] Justice Rothstein also explained that even the truth of the expression did not make it immune from an enquiry as to whether it expressed hatred. At paragraph 141, he noted that even truthful statements may be expressed in language or context that exposes a vulnerable group to hatred. At paragraph 145, he stated that the prohibition against hate speech involves balancing between freedom of expression and equality rights and people are free to debate or speak out against the rights or characteristics of vulnerable groups, but not in a manner which is objectively seen to expose them to hatred and its harmful effects.

[136] To foreshadow the arguments discussed below, in addition to keeping in mind that freedom of expression is not an unfettered right, the major points to carry forward are that: (a) hate speech has a definition and the law has principles that allow hate speech to be identified; (b) hate speech is much more intense than insensitive or repugnant words; (c) hate speech causes significant harm to its victims but also to society; (d) limitations on hate speech, including limitations on political speech, do not offend the Charter; and (e) it is the suppression of the harm caused to society, not the harm to individual members of the vulnerable group, that justifies an infringement on freedom of expression. The next section will add the major point that the common law has already taken into account freedom of expression in defining the tort of defamation.

(c) The Common Law, Defamation, Hate Speech and Freedom of Expression

[137] The above all said about the nature of hate speech and the scope and application of the Charter’s protection of freedom of expression in the context of hate speech, the Charter remains an important element in the litigation between Messrs. Hudspeth and Smitherman and Mr. Whatcott.

[138] The common law must be developed in accordance with Charter values: Retail Wholesale and Department Store Union v. Dolphin Delivery Ltd., supra; Euteneier v. Lee (2005), 2005 33024 (ON CA), 77 O.R. (3d) 621 (C.A.) at para. 64; Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835. For example, in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, the Supreme Court of Canada upheld that existence of the tort of negligent police investigation, and Chief Justice McLachlin stated that recognizing a duty of care by police officers to suspects under investigation was consistent with Charter values and would enhance those values. In Dagenais v. Canadian Broadcasting Corp., supra, the Court held that where the common law rule on publication bans conflicted with Charter values, the common law rule must be varied to enable the Court to consider both the objective of a publication ban and the proportionality of the ban's effect on protected Charter rights.

[139] In Hill v. Church of Scientology, supra, Justice Cory stated:

Private parties owe each other no constitutional duties and cannot found their cause of action upon a Charter right. The party challenging the common law cannot allege that the common law violates a Charter right because, quite simply, Charter rights do not exist in the absence of state action. The most that the private litigant can do is argue that the common law is inconsistent with Charter values. It is very important to draw this distinction between Charter rights and Charter values. Care must be taken not to expand the application of the Charter beyond that established by s. 32(1), either by creating new causes of action, or by subjecting all court orders to Charter scrutiny. Therefore, in the context of civil litigation involving only private parties, the Charter will "apply" to the common law only to the extent that the common law is found to be inconsistent with Charter values.

[140] The question for the immediate case is how does the Charter apply, if at all, to the common law tort of defamation or to the other causes of action advanced by the Marchers, the Liberal Subclass, and the Recipient Class. Most pertinent to this question are: Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, affirming 2008 QCCA 1938, which reversed 2006 QCCS 2124, a Québec civil law case, discussed later in these Reasons for Decision, Hill v. Church of Scientology, supra, and Halton Hills (Town) v. Kerouac, supra.

[141] In Hill v. Church of Scientology, supra, Casey Hill, now Justice Hill, but then a Crown Attorney, brought an action for defamation. The defendants argued that the Canadian law of defamation was not compliant with Charter values, most particularly the Charter’s protection of freedom of expression. The defendants argued that Canadian common law should be developed by adopting the approach used in the United States in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), where the U.S. Supreme Court required a plaintiff in a defamation suit to demonstrate that the defamatory statement was made by the defendant with knowledge that it was false or with reckless disregard of whether the statement was false or not.

[142] As does Justice Deschamps in Bou Malhab v. Diffusion Métromédia CMR inc., discussed below, in Hill v. Church of Scientology, Justice Cory noted that the public policy values to be balanced in defining the tort of defamation are protection of the plaintiff’s reputation and protection of the defendant’s freedom of expression. At para. 100 of his judgment, Justice Cory stated:

There can be no doubt that in libel cases the twin values of reputation and freedom of expression will clash. As Edgerton J. stated in Sweeney v. Patterson, 128 F.2d 457 (D.C. Cir. 1942), at p. 458, cert. denied 317 U.S. 678 (1942), whatever is "added to the field of libel is taken from the field of free debate". The real question, however, is whether the common law strikes an appropriate balance between the two.

[143] Justice Cory undertook a detailed analysis of the American jurisprudence about the rule from New York Times Co. v. Sullivan and also a comparative law analysis from England and Australia, and he concluded that the common law of defamation complied with the underlying values of the Charter and that there was no need to amend or alter it.

[144] The outcome of a Charter analysis was different in Halton Hills (Town) v. Kerouac, supra. In this case, the common law of defamation was developed consistently with Charter vales. In this case, Justice Corbett ruled that a government cannot sue for defamation. See also Montague (Township) v. Page (2006), 2006 2192 (ON SC), 79 O.R. (3d) 515 (S.C.J.); Whitcombe v. Manderson, [2009] O.J. No. 5482 (S.C.J.); Derbyshire County Council v. Times Newspapers Ltd., [1993] A.C. 534 (H.L.).

[145] In Derbyshire County Council v. Times Newspapers Ltd., supra, the House of Lords recognized the principle that expressions about a government are absolutely privileged based on the principle that permitting governments to sue persons critical of them restricts freedom of expression and this is inimical to the basic tenets of democracy. In Derbyshire County Council, Lord Keith of Kinkel quoted Lord Bridge of Harwich in Hector v. Attorney-General of Antigua and Barbuda, [1990] 2 A.C. 312, where the Judicial Committee of the Privy Council held that a statutory provision that made the distribution of any false statement likely to undermine public confidence in the conduct of public affairs a criminal offence contravened the provisions of the constitution protecting freedom of speech. In Hector Lord Bridge said at p. 318:

In a free and democratic system, every citizen must be guaranteed the right to freedom of expression about issues relating to government as an absolute privilege, without threat of a civil action for defamation being initiated against them by that government. It is the very essence of a democracy to engage many voices in the process, not just those who are positive and supportive. By its very nature, the democratic process is complex, cumbersome, difficult, messy and at times frustrating, but always worthwhile, with a broad-based participation absolutely essential. A democracy cannot exist without freedom of expression, within the law, permeating all of its institutions. If governments were entitled to sue citizens who are critical, only those with the means to defend civil actions would be able to criticize government entities. As noted above, governments also have other means of protecting their reputations through the political process to respond to criticisms.

[146] For present purposes, the major points to note and to keep in mind for the discussion that follows are that the common law has already taken into account freedom of expression in defining the tort of defamation and that while political speech against a government body may be absolutely privileged from a defamation suit, Messrs. Hudspeth and Smitherman, the Marchers, the Liberal Subclass, and the Recipient Class, are suing as members of the LGTBTQ2SI Community, which is not a government actor.

4. Is the Proposed Class Action an Abuse of Process?

[147] With the above legal and factual background, the discussion can turn to Mr. Whatcott’s argument that the proposed class action is an abuse of process.

[148] Under Rule 21.03 (3)(d) of the Rules of Civil Procedure, a defendant may move before a judge to have an action stayed or dismissed on the ground that the action is frivolous or vexatious or is otherwise an abuse of process of the court. Courts also have an inherent jurisdiction to dismiss or stay an action on the grounds of abuse of process: Canam Enterprises Inc. v. Coles (2000), 2000 22340 (ON SC), 47 O.R. (3d) 446 (S.C.J.); Orpen v. A.G. Ontario (1925), 1924 379 (ON SC), 56 O.L.R. 327, varied 1925 414 (ON CA), 56 O.L.R. 530 (C.A.).

[149] The categories of abuse of process are not closed, and the court has the power to respond to new situations: Mascan Corp v. French (1988), 1988 4731 (ON CA), 64 O.R. (2d) 1 (C.A.); Foy v. Foy (No. 2) (1979), 1979 1631 (ON CA), 26 O.R. (2d) 220 (C.A.), leave to appeal to the S.C.C. refused. loc cit. at p. 237; Hunter v. Chief Constable of the West Midlands Police, [1982] A.C. 529 (H.L.).

[150] Proceedings that are an abuse of process include those brought for an improper purpose, including the harassment and oppression of other parties, and it is an abuse of process to bring a proceeding for purposes other than the assertion of legitimate rights: Lang Michener et al. v. Fabian (1987), 1987 172 (ON SC), 59 O.R. (2d) 353 (H.C.J.); Thornton v. Tittley (1988), 1987 4141 (ON CA), 61 O.R. (2d) 543 (C.A.), affg. on different grounds (1985), 61 O.R. (2d) 543 (S.C.J.); Carnegie v. Rasmussen Starr Ruddy (1994), 1994 7283 (ON SC), 19 O.R. (3d) 272 (Gen. Div.).

[151] In considering whether an action is an abuse of process, the court may consider the behaviour of the litigant throughout the whole course of the proceedings including interlocutory steps and appeals and the litigant’s competence, integrity, honesty, and adherence to court orders and to the rules and standards of practice: Dale Streiman & Kurz LLP v. De Teresi, [2007] O.J. No. 255 (S.C.J.); Predie v. Barrie (City), [2006] O.J. No. 1424 (S.C.J.); Ontario v. Deutch, [2004] O.J. No. 535 (S.C.J.); Lang Michener et al. v. Fabian, supra.

[152] The power to dismiss a case as frivolous and vexatious or as an abuse of process is exercised only in the clearest of cases: Temilini v. Ontario Provincial Police (Commissioner) (1990), 1990 7000 (ON CA), 73 O.R. (2d) 664 (C.A.).

[153] There is still a great deal of wisdom in the moral imperative of treating others as one would wish to be treated. Two wrongs do not make a right, and the civil law is not a tool for revenge or to destroy or stamp out one’s enemy. The angry, bitter, vindictive, and intemperate tone and tenor of the Statement of Claim and its numerous irrelevant and prejudicial statements along with the statements made at the press conference that the civil action was brought to punish and to stamp out a hateful individual lend credence to Mr. Whatcott’s assertion that the proposed class action is an abuse of process. Although Messrs. Hudspeth and Smitherman are provoked by Mr. Whatcott’s persistence and disappointed by what they regard as the ineffectiveness of the administration of justice to curb Mr. Whatcott, given the tone and tenor of their factum, there is traction to Mr. Whatcott’s argument that Messrs. Hudspeth and Smitherman have attempted to subject him to detestation, vilification, and contempt and that they are the hate mongers.

[154] It is lamentable that the Plaintiffs have pleaded and argued in the fashion that they did and that they are making a public spectacle of their antipathy to Mr. Whatcott and what he stands for, but I cannot conclude that their proposed class action is an abuse of process.

[155] Messrs. Hudspeth’s and Smitherman’s Statement of Claim reveals a genuine grievance and possible civil wrongs perpetrated by Mr. Whatcott that are worthy of the court’s attention. And as I shall explain below, individual members of the Marchers, the Liberal Subclass, and the Recipient Class may have claims that would not be an abuse of process. Further, the issue of the civil law’s approach to protecting members of a marginalized group or a group that historically has been the victim of discrimination from hate speech and the governance of freedom of expression are important juridical issues that cannot be regarded as an abuse of process to have litigated. I, therefore, decline to strike out the Statement of Claim as an abuse of process.

[156] As foreshadowed in the introduction, I shall in any event be striking Messrs. Hudspeth’s and Smitherman’s Statement of Claim for reasons that are mutually exclusive from Mr. Whatcott’s assertion that the proposed class action is an abuse of process. In my opinion, there is good reason to believe that a Fresh as Amended Statement of Claim can be pleaded that would not be an abuse of process.

[157] I, therefore, shall not dismiss Messrs. Hudspeth’s and Smitherman’s action as an abuse of process.

5. Are the Defendants Estopped from Denying that the Pamphlets are Hate Speech?

[158] As noted above, Messrs. Hudspeth and Smitherman rely on the doctrine of res judicata and submit that Mr. Whatcott and his co-conspirators are estopped from denying that the pamphlets distributed at the 2016 Pride Toronto Parade are hate speech because of the Supreme Court of Canada’s decision in Saskatchewan (Human Rights Commission) v. Whatcott, supra.

[159] Messrs. Hudspeth and Smitherman seek to use issue estoppel to defend their action against the preliminary and preemptive motion by Mr. Whatcott to have their proposed class action dismissed on essentially procedural grounds. Mr. Whatcott submits that the Plaintiffs have failed to show a reasonable cause of action or that they have failed to show a cause of action sufficient to overcome his motion pursuant to the anti-SLAPP provisions of the Courts of Justice Act. In response, the Plaintiffs use issue estoppel as a shield. If Mr. Whatcott’s preliminary motion fails, then Messrs. Hudspeth and Smitherman will seek to rely on issue estoppel at trial as a sword to prove their claims against Mr. Whatcott.

[160] Res judicata, issue estoppel, and abuse of process, which are related and partially overlapping legal doctrines, are bars to litigation that preclude a party from re-litigating a claim, a defence, or an issue that has already been determined. Cause of action estoppel, which is a branch of res judicata, precludes a litigant from asserting a claim or a defence that: (a) it asserted; or (b) it had an opportunity of asserting and should have asserted in past proceedings, which is the rule from Henderson v. Henderson (1843), 67 E.R. 313, 3 Hare 100. Issue estoppel, another branch of res judicata, precludes a litigant from asserting a position that is inconsistent or contrary to a fundamental point already decided in a proceeding in which the litigant participated.

[161] The requirements for an issue estoppel are: (1) the parties must be the same; (2) the same question must be involved in the initial and subsequent hearing; (3) the question must have been actually litigated and determined in the first hearing and its determination must have been necessary to the result; and (4) the decision on the issue must have been final: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44.

[162] Abuse of process is a doctrine that a court may use to preclude re-litigation of a cause of action or an issue. The court has an inherent jurisdiction to prevent the misuse of its process that would be manifestly unfair to a party to the litigation or would in some other way bring the administration of justice into disrepute, and the court can and has used this jurisdiction to preclude re-litigation when the strict requirements of res judicata or issue estoppel are not satisfied: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481 (Ont. C.A.) at paras. 55-56, per Justice Goudge dissenting, approved 2002 SCC 63, [2002] 3 S.C.R. 307.

[163] The doctrine of abuse of process is a flexible doctrine whose aim is to protect litigants from abusive, vexatious or frivolous proceedings or otherwise prevent a miscarriage of justice, and its application will depend on the circumstances, facts and context of a given case: Hanna v. Abbott (2006), 2006 27865 (ON CA), 82 O.R. (3d) 215 (C.A.) at paras. 29-32. The doctrine of abuse of process precludes re-litigation in circumstances where the strict requirements of res judicata are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality, and the integrity of the administration of justice.

[164] In Danyluk v. Ainsworth Technologies Inc., supra, and in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court added a discretionary element to res judicata and the flexible doctrine of abuse of process. The Supreme Court held that where a party establishes the pre-conditions for an issue estoppel or an abuse of process, a court must still determine whether, as a matter of discretion, issue estoppel ought to be applied. The court should stand back and, taking into account the entirety of the circumstances, consider whether an estoppel in the particular case would work an injustice.

[165] In Danyluk v. Ainsworth Technologies Inc. and in Penner v. Niagara (Regional Police Services Board) and other case the Court recognized that there may be situations where re-litigation would enhance the integrity of the judicial system; for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context, — and in these instances, the subsequent proceeding would not be an abuse of process.

[166] I conclude that - for the purposes of the two motions now before the court – that Mr. Whatcott and his privies, the Gay Zombies and his financial backers, are estopped from denying that the pamphlets distributed at the 2016 Pride Toronto Parade constitute hate speech and that he and his privies are not protected by his Charter protected freedom of expression. The invocation of an issue estoppel is discretionary, and I think it is appropriate to invoke this discretion to order an issue estoppel in the context of the two motions now before the court.

[167] To be clear, should this litigation proceed further, it will be up to the trial judge to determine whether Mr. Whatcott is estopped from asserting that what was distributed at the Pride Parade was different and outside of what was prohibited by the Supreme Court’s decision or it will be up to the trial judge to determine whether Mr. Whatcott and his privies are estopped from asserting that the circumstances of the pamphlets’ publication and distribution; i.e., at a parade that allegedly was a political event, may make the Supreme Court’s decision in Saskatchewan (Human Rights Commission) v. Whatcott distinguishable.

[168] I need not decide whether a trial judge will estop Mr. Whatcott from denying that his pamphlets constituted hate speech not protected by his freedom of expression; that is a matter for the discretion of the trial judge. Rather, I decide that for the purposes of determining whether the Plaintiffs’ proposed class action is an abuse of process or whether they Plaintiffs have shown a reasonable cause of action or whether their action meets the tests of an anti-SLAPP motion, Mr. Whatcott is indeed estopped from disputing that the pamphlets he distributed at the Pride Parade are or could be classified as hate speech.

[169] The co-Defendants are privies of Mr. Whatcott, and he and they distributed pamphlets that are similar or similar enough to the flyers distributed in Saskatchewan that it is fair and just for the purposes of a preliminary and preemptive motion, which is technical and does not make a finding on the factual merits of the claim or defence, to preclude Mr. Whatcott and his privies from re-litigating the legal characterization of his pamphlets.

[170] But for a technical difference in the parties, the elements of an issue estoppel are present and the doctrine of abuse of process precludes re-litigation in circumstances where the strict requirements of res judicata are not met. It is not plain and obvious that Messrs. Hudspeth’s and Smitherman’s claims for civil conspiracy to injure, defamation, and intentional infliction of mental distress should give way to a defence that: (a) did not succeed in Saskatchewan (Human Rights Commission) v. Whatcott; and (b) may not even apply given that they are not government actors or surrogates of government actors.

[171] I, therefore, conclude that for the purposes of the motions now before the court, Mr. Whatcott is estopped from denying that the pamphlets distributed at the 2016 Pride Toronto Parade are examples of hate speech that may inform actions for conspiracy to injure, defamation, or intentional infliction of mental distress.

6. The Anti-SLAPP Motion

[172] I turn now to Mr. Whatcott’s argument that Messrs. Hudspeth’s and Smitherman’s action should be dismissed pursuant to sections 137.1 to 137.5 of the Courts of Justice Act.

[173] Litigation can be used to suppress freedom of expression and political speech and legitimate acts of protest and dissent. Sections 137.1 to 137.5 of the Courts of Justice Act are Ontario’s version of what is commonly referred to as an anti-SLAPP statute, where “SLAPP” refers to “Strategic Lawsuit Against Public Participation.”

[174] The purpose of the anti-SLAPP provisions of the Courts of Justice Act 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. The anti-SLAPP provisions are designed, among other things, to allow a defendant to bring a motion to have an action dismissed in a summary fashion.

[175] Subject to certain limitations and exclusions, the anti-SLAPP provisions provide that on motion by a person against whom a proceeding is brought, a judge shall 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.

[176] On a motion under the anti-SLAPP provisions, the moving party bears the initial onus of satisfying the court that the responding party’s proceeding arises from an expression made by the moving party that relates to a matter of public interest. If the moving party meets the onus of showing a communication on a matter of public interest, the onus shifts to the responding party and his or her proceeding will be dismissed, unless he or she shows that: (1) his or her proceeding has substantial merit; (2) the moving party has no valid defence in the proceeding; and (3) the harm likely to be or have been suffered 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: 1704604 Ontario Ltd. v. Pointes Protection Assn., 2016 ONSC 2884. The court will examine on a case-by-case basis whether the public interest in access to justice outweighs the public interest in freedom of expression and in protecting communications on matters of public interest: Platnick v. Bent, 2016 ONSC 7340.

[177] The burden of proof under s. 137.1 of the Courts of Justice Act is below the civil standard of proof on the balance of probabilities, but the responding party to an anti-SLAPP motion bears the burden of establishing, on objective evidence, compelling and credible grounds that his or her claim has substantial merit and that there is no valid defence to it: Platnick v. Bent, supra; Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC 6785.

[178] The anti-SLAPP provisions do not capture and dismiss claims simply because their subject matter is one of public interest but rather scrutinizes such claims and imposes a burden on the plaintiff to show more than that his or her claim is not frivolous or vexatious and rather the plaintiff must show there are reasonable grounds to believe that his or her proceeding has substantial merit and that the defendant has no valid defence to the proceeding: Able Translations Ltd. v. Express International Translations Inc., supra.

[179] The responding party must also show that the harm likely to be or have been suffered as a result of the defendant’s expression of a matter of public interest is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. In this last regard, the responding party must provide credible and compelling evidence of damages that are likely to be proved at trial: Able Translations Ltd. v. Express International Translations Inc., supra at paras. 82-92; Fortress Real Developments Inc. v. Rabidoux, 2017 ONSC 167.

[180] Under the anti-SLAPP provisions, expression means 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. The anti-SLAPP provisions do not define what is a matter of public interest, but case law indicates that it is a broad concept and that a matter of public interest involves matters in which the public has some substantial concern beyond curiosity or prurient interest, and a matter of public interest affects the welfare of citizens or concerns an issue of public controversy or concerns an issue about which citizens have a right to make fair comment: 1704604 Ontario Ltd. v. Pointes Protection Assn., supra; Grant v. Torstar Corp., 2009 SCC 61 at paras. 103 – 106; London Artists, Ltd. v. Littler, [1969] 2 All E.R. 193 (C.A.).

[181] Mr. Whatcott submits that his dissemination of material at the Pride Toronto Parade was a matter of public interest and that Messrs. Hudspeth’s and Smitherman’s proposed class action, which he also says is an abuse of process and defamatory, is being used to suppress his freedom of expression and his freedom of association. Messrs. Hudspeth and Smitherman assert that their claims have merit but there is no merit to Mr. Whatcott’s defences based on freedom of expression and freedom of assembly or on his reliance on the anti-SLAPP provisions of the Courts of Justice Act.

[182] Given, as found above, that Mr. Whatcott is estopped from denying that the pamphlets he distributed at the Pride Parade are hate speech, he does not meet the initial onus of satisfying the Court that Messrs. Hudspeth’s and Smitherman’s proposed class action arises from an expression made by Mr. Whatcott that relates to a matter of public interest.

[183] As explained by Justice Rothstein in Saskatchewan (Human Rights Commission) v. Whatcott, supra, hate speech is by its nature not in the public interest and hate speech interferes with public discourse and debate. The anti-SLAPP provisions of the Courts of Justice Act, do not create a "safe space" for defamation because the subject matter is one of public interest and hateful or malicious attempts to inflict harm under the guise of free debate of matters of public interest are not protected from suit by the legislation: Able Translations Ltd. v. Express International Transactions Inc., supra at paras. 38, 84.

[184] Assuming I am wrong and it could be said that Mr. Whatcott has met the initial onus of showing that his pamphlets are a communication on a matter of public interest, then Mr. Whatcott’s motion should still be dismissed.

[185] In my opinion, Messrs. Hudspeth and Smitherman have met the onus of showing that: (1) their proposed action has substantial merit; (2) Mr. Whatcott has no valid defence; and (3) the harm likely to be or have been suffered as a result of Mr. Whatcott’s pamphlets is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[186] I conclude that Mr. Whatcott’s anti-SLAPP motion should be dismissed.

7. The Liberal Subclass’s Defamation Claim

[187] Mr. Smitherman seeks to be appointed the representative plaintiff for the Liberal Subclass and to advance a defamation claim on its behalf. Mr. Whatcott submits that the Liberal Subclass does not have a reasonable cause of action and its defamation claim should be dismissed.

[188] There are three elements to a claim for defamation: (1) the impugned words are defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) the words refer to the plaintiff; and (3) the words were published, meaning that they were communicated to at least one person other than the plaintiff: Grant v. Torstar Corp. 2009 SCC 61 at para. 28.

[189] A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers, a statement which tends to lower that person in the estimation of right-thinking members of society generally and, in particular, to cause the person to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem: Leenen v. Canadian Broadcasting Corporation (2000), 2000 22380 (ON SC), 48 O.R. (3d) 656 (S.C.J.) at para. 40.

[190] The tort of defamation is characterized by its focus on protecting an individual’s reputation. In Hill v. Church of Scientology, supra at paragraph 116, Justice Cory said that a central theme of the common law through the ages has been that the reputation of the individual is of fundamental importance. At para. 108, he stated:

108. Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of a person. It is that good repute which enhances an individual's sense of worth and value. False allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre. A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited.

[191] Some individual members of the Liberal Subclass, including Prime Minister Trudeau and Premier Wynne, may have defamation claims against the Defendants. The expressions in the pamphlets distributed at the Parade impute that members of the Liberal Subclass suffer from a loathsome or contagious disease or that they are criminals and such imputations are actionable per se without the need to prove special damages: Serdar v. Metroland Printing, Publishing and Distributing Ltd., [2001] O.J. No. 1596 (S.C.J.); Mian v. Mahdi, [1995] O.J. No. 1722 (Gen. Div.) at para. 53; Halls v. Mitchell (1926), 1926 357 (ON CA), 59 O.L.R. 590 (C.A.).

[192] It is important to emphasize that any claims by members of the Liberal Subclass would not be claims by the government of Canada or of Ontario. The claims would be personal claims of public servants or private citizens suing Mr. Whatcott in his personal capacity. As noted above, governments cannot sue their citizens for defamation.

[193] However, while there are these individual claims and while, as I shall explain below, it is doctrinally possible that there can be a class action when members of a group are defamed, the case at bar is not such a case. A defamation action is a personal action, and the words to be actionable must be understood as being published of and concerning the plaintiff or the plaintiffs. Words aimed at defaming a group are only actionable by the members of the group that have severally been singled out, which is not the situation in the case at bar.

[194] The particular and idiosyncratic nature of a defamation claim by a group is demonstrated by Seafarers International Union of Canada v. Lawrence (1979), 1979 2110 (ON CA), 24 O.R. (2d) 257 (C.A.), where two members of the Seafarers Union brought a representative action on behalf of each and every member of the union against a member of Parliament. The defendant had told reporters that “gangs of thugs” from the Seafarers Unions worked on the riding campaigns of Montreal cabinet ministers.

[195] Noting that the defamatory statement was directed at the Seafarers Union as a discrete entity, Associate Chief Justice MacKinnon said that there was no cause of action on behalf of the members of the union for the defaming of the union. The Court held that for there to be a representative action, each member of the class would have to establish that he or she had a personal action for defamation; i.e., that they personally – not their union – had their personal reputation besmirched. Associate Chief Justice MacKinnon stated at para. 20 of his decision:

20. In my view, in determining whether a class action is appropriate, it is of importance to consider the fact that the class action here claims damages for defamation. The alleged defamatory statement does not say that all members of the Seafarers International Union are thugs, but rather is directed at the union. An action for defamation is a personal action based on injury to one's reputation or that the words complained of have a tendency to lower one in the estimation of others. The personal nature of the action is underlined when it is noted that the common law rule of actio personalis moritur cum persona [a personal action does not survive the death of the person] applies to such actions. The words to be actionable must be understood as being published of and concerning the plaintiff. It is pointed out in Gatley, supra, p. 139, para. 283:

Where the words complained of reflect on a body or class of persons generally, such as lawyers, clergymen, publicans, or the like, no particular member of the body or class can maintain an action. “If” said Willes J. in Eastwood v. Holmes, [(1858) 1 F & F 347 at 349] “a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual.”

Viscount Simon, L. C., in Knupffer v. London Express Newspaper, Ltd., [1944] A.C. 116 at p. 118, in opening his speech stated:

My Lords, it is an essential element of the cause of action for defamation that the words complained of should be published 'of the plaintiff.' Lord Russell of Killowen said, in the same case (p. 123):

The crucial question in these cases in which an individual ... sues in respect of defamation of a class or group of individuals is whether on their true construction the defamatory words were published of and concerning the ... plaintiff.

It is true that that case was not an attempt by Knupffer to bring an action on behalf of himself and others of the class under the English Rule equivalent of Rule 75, but it illustrates that a plaintiff, to have an actionable cause, must be able to show he is identified in the minds of some of the public as one referred to in the defamatory statement.

[196] I note parenthetically that in Seafarers International Union of Canada v. Lawrence, Associate Chief Justice MacKinnon also stated that no representative action was available under Rule 75 of the Rules of Civil Procedure, the more restrictive predecessor of the modern class action, because there would have to be individual assessments of damages for the class members. For present purposes, that point is of no significance because this obstacle to class actions, which are a form of representative action, has been removed under the Class Proceedings Act, 1992. What remains significant, however, is that there is no class action on behalf of members of a group for the defamation of the group unless each particular class member can be said to be singled out. A defamation action is a personal action concerning an individual or a discrete legal entity and his, her, or its discrete reputation.

[197] Two major principles emerge from Seafarers International Union of Canada v. Lawrence, supra; namely: (1) an action for defamation is a personal action; and (2) where alleged defamatory remarks are directed at a group, for there to be a class action, the individual members of the group must be able to show that the defamatory words are about them in particular (the singled-out principle).

[198] These major principles have been applied in many cases; see: Campbell v. Toronto Star Newspapers Ltd., [1990] O.J. No. 1646 (Ont. Div. Ct.); Elliott v. Canadian Broadcasting Corp. (1993), 1994 10569 (ON SC), 16 O.R. (3d) 677 (Gen. Div.), affd. on different grounds (1995), 1995 244 (ON CA), 25 O.R. (3d) 302 (C.A.); Kenora Police Services Board v. Savino, [1997] O.J. No. 2768 (Div. Ct.), leave to appeal to the Court of Appeal dismissed, [1997] O.J. No. 5067 (C.A.), affg. [1996] O.J. No. 2758 (Gen. Div.); Sun Tanner’s Image v. White, [2001] O.J. No. 1661 (C.A.); Butler v. Southam Inc., 2001 NSCA 121, [2001] N.S.J. No. 332 (N.S.C.A.); Bai v. Sing Tao Daily Ltd., 2003 24013 (ON CA), [2003] O.J. No. 1917 (C.A.); Gauthier v. Toronto Star Daily Newspapers Ltd., 2003 49328 (ON SC), [2003] O.J. No. 2622 (S.C.J.), affd. [2004] O.J. No. 2688 (C.A.), leave to appeal refused, [2005] 1 S.C.R. ix.

[199] As the discussion below will reveal, these major principles also operate under the Civil Code of Québec; see Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, affg. 2008 QCCA 1938, which reversed 2006 QCCS 2124.

[200] As the discussion below will also reveal, a third major principle emerges from the common law and civil law cases. The principle is that the concept of defamation has to be reconciled with the right to freedom of expression since “that which belongs to the former is generally taken away from the latter:” Bou Malhab v. Diffusion Métromédia CMR inc., supra at paragraph 16 per Justice Deschamps.

[201] Turning to some of the case law, in Elliott v. Canadian Broadcasting Corp., supra Donald Elliott brought a proposed class action on behalf of the 25,000 surviving airmen of Bomber Command against the Canadian Broadcasting Corporation and others for publication of a made-for-TV film and a book entitled, The Valour and the Horror -- The Boys of Bomber Command. In a decision affirmed by the Court of Appeal, Justice Montgomery dismissed the action. He said that there cannot be a libel of a group. He said that defamation of a group was not actionable, but if an individual plaintiff or collection of plaintiffs can show that the statement reflecting on the group could be understood as referring to each of them in particular, individual actions for defamation would lie. Referring to the leading case of Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 (H.L.), Justice Montgomery stated:

In Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 at p. 124, [1944] 1 All E.R. 495, the House of Lords dismissed a libel action by a Russian citizen living in London. He was the leader of the Young Russia Party with a membership of 2,000. The London branch had 24 members. Lord Simon said at pp. 118-19:

My Lords, it is an essential element of the cause of action for defamation that the words complained of should be published of the plaintiff. If the words are not so published, the plaintiff is not defamed and cannot have any right to ask that the defendant should be held responsible to him in respect of them.

These facts, standing alone, however, do not justify the conclusion that the words complained of are capable of being read as a defamation of the appellant. The words make allegations of a defamatory character about a body of persons -- some thousands in number -- who belong to a society whose members are to be found in many countries. In O'Brien v. Eason & Son, Holmes and Cherry L.JJ. ruled that where comments of an alleged defamatory character were made on an association called the Ancient Order of Hibernians, an individual member of the order, who was not named nor in any way referred to, could not maintain an action of libel. They referred to a well-known dictum of Willes J., uttered more than fifty years before, in Eastwood v. Holmes, that “if a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual." Where the plaintiff is not named, the test which decides whether the words used refer to him is the question whether the words are such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to. There are cases in which the language used in reference to a limited class may be reasonably understood to refer to every number of the class, in which case every member may have a cause of action.

And at p. 121:

There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law -- can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact -- Does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him? Unless the first question can be answered in favour of the appellant, the second question does not arise, and where the trial judge went wrong was in treating evidence to support the identification in fact as governing the matter, when the first question is necessarily, as a matter of law, to be answered in the negative. I move that this appeal be dismissed.

Lord Atkin put it succinctly at p. 121:

The only relevant rule is that in order to be actionable the defamatory words must be understood to be published of and concerning the plaintiff.

[202] Justice Montgomery also made the point, which I shall return to below, that the defamation of a group that promotes hatred as distinct from defamation of the individual members of a group is properly prevented by public prosecution and not by a private law tort.

[203] In Kenora Police Service Board v. Savino, supra, Mr. Savino, a litigation lawyer, was retained by the family of an Aboriginal person who died while in the custody of the Kenora Police Service. Mr. Savino was retained to sue for wrongful death. After Mr. Savino was retained, he told the media that the Kenora Police Service pursued racist and abusive tactics against Aboriginal persons and that the practices were approved and condoned by the Kenora Police Services Board and by its Chief of Police. The Chief and the Board then brought a proposed class action on behalf of all members of the police force for defamation. Justice Platana refused to certify the action, among other reasons, for the failure to show a reasonable cause of action. His decision was affirmed by the Divisional Court in a short six-paragraph endorsement that stated:

1. The sole issue on this appeal is the correctness of the decision of Platana J. refusing Certification of this defamation action as a Class Action pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6, and to appoint Donald J. Munro as the representative plaintiff of all members of the Kenora Police Service.

2. The Claim as styled was commenced by Kenora Police Services Board and Donald John Munro on his behalf and on behalf of all members of the Kenora Police Service against Victor P. Savino, a lawyer, who alleged racist practices by members of the Kenora Police Services.

3. Defamation is a personal tort. A cause of action will only lie if each member of the Kenora Police Service is able to maintain a personal action for defamation. The Class Proceedings Act does not create any new substantive rights. To comment that "members of the Kenora Police Service" have performed racist acts does not, of itself, justify certification as a Class Action by all members of the Service. Each member of the Kenora Police Service is required to disclose a cause of action in the pleadings as condition precedent to certification. See: Knupffer v. London Express Newspaper Ltd. [1944] A.C. 116 (H.L.); Booth v. British Columbia Television Broadcasting System et al. (1982), 1982 251 (BC CA), 139 D.L.R. (3d) 88 (B.C.C.A.); Elliott et al. v. Canadian Broadcasting Corp. et al. (1993), 1994 10569 (ON SC), 16 O.R. (3d) 677 (Gen. Div.) affirmed (1995), 1995 244 (ON CA), 25 O.R. (3d) 302 (C.A.).

4. Section 2 of the Charter of Rights guarantees as a fundamental freedom the "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication". This freedom requires that criticism of unspecified members of a public body in a general way not be proscribed by use of a class action defamation suit.

5. This is not to say that an individual member of the Kenora Police Service who has been singled out may not be able to maintain such an action.

6. Appeal dismissed. ….

[204] In Gauthier v. Toronto Star Daily Newspapers Ltd., supra, the plaintiffs brought a proposed defamation class action on behalf of Toronto police officers and civilian personnel for a series of articles published in the Toronto Star that claimed that the police were racists and bigots who racially profiled and treated black persons more harshly than white people. Justice Cullity dismissed the action for the failure to show a reasonable cause of action because it could not be said that the class members had each been singled out by the defamatory comments.

[205] In Bou Malhab v. Diffusion Métromédia CMR inc., supra, Mr. Malhab, an Arabic speaking taxi driver in Montreal, brought a proposed class action on behalf of his fellow Arabic and Creole speaking drivers against André Arthur, a radio talk-show host, who defamed the group with racist comments and with ridicule about their alleged incompetence, uncleanliness, comportment, demeanor, language, and lack of integrity. Justice Guibault of the Superior Court held that Mr. Arthur’s comments were defamatory, and he ordered the defendants, which included the radio station owner, to pay $220,000 to a non-profit organization as damages. The Québec Court of Appeal set aside the judgment, and the Court of Appeal’s judgment was affirmed by the Supreme Court of Canada. Justice Abella dissented, and Justice Deschamps wrote the decision for the majority (Chief Justice McLachlin and Justices Binnie, LeBel, Charron and Rothstein JJ. concurring).

[206] Justice Deschamps began her decision for the majority by juxta-positioning defamation, which is a civil wrong protecting personal reputation, with the right to freedom of expression. At paragraphs 17-19 of her judgment, she stated:

17. Freedom of expression is protected by the Canadian Charter of Rights and Freedoms, s. 2(b), and the Charter of human rights and freedoms, R.S.Q., c. C-12, s. 3 ("Quebec Charter"). It is one of the pillars of modern democracy. It allows individuals to become emancipated, creative and informed, it encourages the circulation of new ideas, it allows for criticism of government action and it favours the emergence of truth (Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19). Freedom of expression is essential in ensuring that social, economic and political decisions reflect the aspirations of the members of society. It is broad in scope and protects well-prepared speech and wrath-provoking comments alike (R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697; R. v. Butler, 1992 124 (SCC), [1992] 1 S.C.R. 452). However, it is not absolute and can be limited by other rights in a democratic society, including the right to protection of reputation (Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R