CITATION: Progressive Conservative Party of Ontario v. Karahlios, 2017 ONSC 7696

COURT FILE NO.: CV-17-586682

DATE: 20171222

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PROGRESSIVE CONSERVATIVE PARTY OF ONTARIO

Applicant

– and –

JIM KARAHALIOS, TAKE BACK OUR PC PARTY and AXE THE CARBON TAX

Respondents

David Zuber Joseph Villeneuve and Joshua J.A. Henderson for the Applicant

Scott C. Hutchinson, Alex Smith and Ben Rogers for the Respondents

HEARD: December 18, 2017

PERELL, J.

REASONS FOR DECISION

A. Introduction

A. Introduction

1On this motion in support of an application, the Applicant, the Progressive Conservative Party of Ontario (“PC Ontario” or the “Party”) seeks an interlocutory injunction.

2In its Application, the Party seeks (a) a declaration that the Respondents, Jim Karahalios, Take Back our PC Party, and Axe the Carbon Tax, have unlawfully used the Party’s Confidential Membership List; (b) a declaration that the Respondents have been unjustly enriched and hold the profits they received in a constructive trust for the benefit of the Party; (c) a tracing order and disgorgement of the Respondent’s earnings from the misappropriation of the confidential information; and (d) an interim injunction preventing the Respondents from using address information obtained through their work on behalf of the Party or any of its associations, candidates, or leadership campaigns derived from data in the Party’s confidential membership registry or other confidential membership list, in order to contact Party members or former members.

3The Respondents resist the motion for an injunction and seek an Order dismissing the application pursuant to s. 137.1 of the Courts of Justice Act¹ on the basis that the application arises from communications relating to matters of public interest.

4For the reasons that follow, I grant the Respondents’ motion and I dismiss the Party’s action.

B. Factual Background

B. Factual Background

5PC Ontario is the oldest political party in Canada, founded in 1854 by Sir John A. MacDonald and George-Etienne Cartier. It currently is the Honourable Opposition in the Ontario Legislature. PC Ontario has approximately 150,000 members. Its current leader is Patrick Brown, who was elected leader on May 9, 2015. Mr. Brown was elected an MPP in a provincial by-election on September 3, 2015.

6In an electronic database, PC Ontario maintains a Registry of its members. The Registry contains personal contact information. The Registry is governed by Article 8 of the PC Ontario Constitution. Article 8.8(j) of the Constitution authorizes the Executive to make rules governing the use of the Registry. Section 8.7 of the Constitution states: “As a confidential asset of the Party, the Registry shall not be sold or made available to any person or organization outside of the Party.”

7The information in the Registry is and was compiled from the personal information of members as part of their membership applications. The Party periodically updates the information, using, among other things, membership renewal applications, address change notifications, contribution solicitations, convention and event registrations, and voting registrations at Party meetings, nominations, and policy conferences.

8Section 1.7 of the Membership Registry Rules states that a purpose of the Registry is: “To protect the confidentiality of data of members listed on the Registry, and to ensure that the Registry is used only for Party purposes, and not for any other or improper purpose…” Section 11 states: “The Registry, and any portion thereof, may not be used or disclosed for any other purpose without the prior written approval of the Party Executive.”

9Mr. Karahalios, who is a lawyer, was until recently a member of PC Ontario. He is a political activist involved in provincial and federal politics. He is the organizer of “Axe the Carbon Tax,” which is a non-profit political national lobbying organization. Axe the Carbon Tax opposes carbon taxes, including a proposal made by Mr. Brown.

10Mr. Karahalios is also a lead organizer of “Take Back Our PC Party,” which is not an organization but rather the name he uses for a campaign for a special general meeting of PC Ontario to clarify its members’ rights under the Party Constitution to select local candidates through a nomination process.

11Mr. Karahalios’s involvement in politics began in 2005, when he volunteered to help the federal PC party in organizing riding associations. In the years that followed, among other things: Mr. Karahalios ran nomination and general election campaigns, served as president of riding associations, volunteered on leadership campaigns, fundraised, and served on a candidate identification committee.

12In 2014-2015, there was a campaign to elect a new leader of PC Ontario, and Mr. Karahalios volunteered to campaign for Monte McNaughton. With respect to the leadership race, on October 3, 2014, Mr. Karahalios signed a Confidentiality Agreement. The Agreement stipulated as follows:

I, Jim Karahalios (“Campaign Team Member”), acknowledge that as part of my involvement in and participation on the campaign team (“Campaign Team”) … I will be involved in various … activities through which I will obtain information regard the strategies and tactics of the Campaign Team … including but not limited to … the identity of Campaign Team members and meeting participants … campaign strategy and tactics, campaign advertising … fundraising and finance … and matters relating directly to Progressive Conservative Party of Ontario (“PCPO”) (collectively referred to as “Confidential Information”).

I ACKNOLWEDGE AND AGREE that absolute discretion is required relative to the Confidential Information and that this discretion extends beyond the date of the Leadership Election. Accordingly, as a condition of my participation on the Campaign Team, I UNDERTAKE AND AGREE not to disclose any of the Confidential Information, in either oral or written form, for five (5) years following the date upon which Monte McNaughton, MPP, no longer holds public office of any kind.

I UNDERSTAND, ACKNOWLEDGE AND AGREE that any breach of this Confidentiality Agreement would cause serious damage to the… Progressive Conservative Party of Ontario, to Progressive Conservative Party Members of provincial parliament and candidates for provincial parliament…

I UNDERSTAND AND ACKNOWLEDGE that any breach of the terms and conditions of this Confidentiality Agreement will, among other things, be cause for my immediate termination of my participation in the Campaign Team and the McNaughton Leadership Campaign is entitled to seek all remedies, including injunctive remedies, to which it is entitled.

13On January 7, 2015, Mr. McNaughton, signed a Licence Agreement as required by s. 11.1.1 of the Membership Registry Rules, which Licence Agreement stipulated:

The Party is the owner of, or will create and own, original expression, comprising the Party membership lists, both past and current…

2. The Party wants to grant and the Candidate wants to obtain a non-exclusive, limited LICENCE to use the Proprietary Information for the sole purpose of conducting a campaign for election as the Leader of the Party and for no other purpose whatsoever.

2.4 The Candidate agrees that neither he/she nor any employee, agent, advisor, volunteer or supporter of the Candidate shall at any time during the term of this agreement, or thereafter, use the Proprietary Information for any purposes other than contacting the persons or organizations disclosed in the Proprietary Information for the purpose of seeking election as the Leader of the Party and subject thereto, the Candidate shall not disclose any Proprietary Information directly or indirectly to any third person.

5.1 … The Term of this Agreement shall commence on the date of the Agreement and end on May 9, 2015.

8.1 Upon termination of this Agreement, the Candidate and all others to whom access or copies have been provided shall immediately discontinue the use of the Proprietary Information and deliver to the Party all copies of the Proprietary Information…

10.1 The Candidate understands and agrees that the Party would not have any adequate remedy at law for the material breach or threatened breach of any one or more of the provisions set forth in this Agreement (including the unauthorized disclosure of all or any part of the Proprietary Information).

10.2 The Candidate agrees that in the event of any material breach or threatened breach, the Party may, in addition to the other remedies which may be available to it, file suit in equity to enjoin the candidate from the breach or threatened breach of this provisions of this Agreement. The Candidate agrees that injunctive relief is an appropriate remedy for a breach or threatened breach.

11.1 The Candidate acknowledges and agrees that, in the event of the disclosure of the Proprietary Information or improper use of the Proprietary Information by the Candidate in breach of the provisions of this Agreement, the calculation of damages, both compensatory and consequential, would be difficult if not impossible to compute.

14In May 2015, Patrick Brown was elected Party Leader of the Ontario PC Party.

15After the leadership race was over, Mr. Karahalios continued his activities as a member of the Party, but in early 2017, he decided not to run for the nomination for Cambridge riding because he did not support Mr. Brown’s leadership, and instead Mr. Karahalios established the national political campaign “Axe the Carbon Tax.”

16To further the Axe the Carbon Tax campaign, Mr. Karahalios wrote commentary, produced videos, and sent emails. At a regional meeting of the Party in Kitchener and at a riding meeting of Party members in Cambridge, Mr. Karahalios organized a campaign against the carbon tax.

17In late May 2017, Mr. Karahalios and Axe the Carbon Tax sent an email with the subject line “Can we trust Patrick Brown?” in which he argued that Mr. Brown was supporting a carbon tax similar to that proposed by the Liberal Party of Canada.

18PC Ontario alleges that in sending the email, Mr. Karahalios unlawfully used a mailing list that he had obtained because of his involvement in the 2015 leadership race. The Party stated that as a result of Mr. Karahalios’s mailing, some of its members complained about the violation of their privacy and the annoyance of the unsolicited email.

19On June 1, 2017, PC Ontario sent Mr. Karahalios a demand letter. The Party alleged that he had violated federal privacy, anti-spam and elections financing legislation, in addition to the Party’s terms of access for its proprietary leadership list. The Party requested Mr. Karahalios to stop the use of the mailing list and to return or destroy all copies of it.

20On June 6, 2017, Mr. Karahalios responded through counsel and requested clarification of what list the Party was referring to. In the response, Mr. Karahalios’s legal counsel rejected the Party’s legal theory and asked that the Party identify what legal right it was asserting. There was no immediate response to counsel’s letter.

21In the summer of 2017, various PC Ontario riding nominations were appealed to the Party’s Executive on grounds of alleged fraudulent activity. The Executive declined to hear the appeals. Mr. Brown said he was going to appoint candidates, based on nominations that had already occurred, and that the Party would hire the accounting firm PwC to certify nominations going forward.

22Unhappy with these events, Mr. Karahalios launched a political movement called “Take Back Our PC Party.”

23On November 7, 2017, Mr. Karahalios sent a mailer from Axe the Carbon Tax, in which he argued that the Party Executive had failed to abide by the Party Constitution’s requirement for a properly constituted policy conference. He submitted that the Executive was deliberating evading pushback against Mr. Brown’s carbon tax policy.

24On November 8, 2017, Mr. Karahalios sent a mailer from Take Back our PC Party, and he argued that Mr. Brown and the Executive had usurped essential democratic processes as mandated by the Party Constitution and had deceived Party members as to PwC’s role at nomination meetings.

25On November 16, 2017, the Party brought this application.

26On November 21, 2017, the Executive revoked Mr. Karahalios’s membership in PC Ontario.

27On November 30, 2017, Mr. Karahalios was refused entry to the Ontario PC Party Convention as a member or as a non-member observer.

28On December 7, 2017, the Respondents brought a motion for an order pursuant to s. 137.1 of the Courts of Justice Act dismissing the Party’s application and for damages and full indemnity costs. The parties agreed that the Party’s motion for an interlocutory injunction would be heard at the same time as the Respondent’s motion to have the application dismissed.

29The Party submits that it did not give its prior written approval to Mr. Karahalios, Axe the Carbon Tax or Take Back Our PC Party, to disclose any part of the Confidential Membership List or to use the information for the purpose of communicating with members by email or letter in respect of the matters contained in the May 2017 email or the November 2017 letter from Jim Karahalios.

30The Party submits that it was an implied or express term of Mr. Karahalios’s confidentiality agreement from the 2015 leadership race, that he would not use the Confidential Membership List or any part thereof for any purpose other than the leadership race.

31In its application and for its motion for an injunction, the Party submits that the Respondents continuing use of the Confidential Membership List is prejudicial to the Party because the Party has a duty to ensure the privacy and confidentiality of communications to members, and to protect the privacy of the member’s personal information. The Party says that there is a loss of goodwill occasioned by the unauthorized use of its confidential and proprietary information by the Respondents for spamming purposes.

32For his part, Mr. Karahalios deposed that in order to communicate with Party members, he uses a database software program known as Nation Builder to compile his own list of party members, former members, and potential new members. He testified that he has built his Nation Builder data file from multiple sources including social media like Facebook to gather names and personal information. He deposed that over the years as a party activist, he has exchanged lists with other activists and used publicly available information; for example, from Election Ontario’s offices to obtain lists of donors to the Party.

33Mr. Karahalios admits having the list provided for the 2015 leadership race, but denies that he used that list to compile his Nation Builder list. He admits that he has received Party membership lists from others that may have contained information that the others had taken from the Party’s Registry and that information from those lists may have added to his own database.

34Mr. Karahalios deposed that in his 15 years as a political activist he had never seen or heard of a licensing agreement or anything to suggest that historical lists are property of any party or campaign or that a political party would take issue with a party member using historic lists for democratic purposes. He deposed that the exchange of historic lists between organizers and candidates is an essential component of internal party democracy and political organizing, a prime mechanism for dissent in the face of a violation of the Party Constitution by the Executive, and freedom to exchange historic lists is vital to a free and democratic political party system in Canada.

C. Discussion

C. Discussion

35Sections 137.1 to 137.5 of the Courts of Justice Act are Ontario’s version of an anti-SLAPP statute, where “SLAPP” refers to “Strategic Lawsuit Against Public Participation.” The anti-SLAPP provisions are designed to discourage the use of litigation as a means of unduly limiting expression on matters of public interest. Under the anti-SLAPP statute, a defendant or respondent may bring a motion to have a proceeding dismissed, if he or she satisfies the court that the proceeding arises from an expression made by the defendant or respondent that relates to a matter of public interest.

36The 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.²

37Under 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.³

38Subject to certain limitations and exclusions, discussed below, 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.⁴ On a motion under the anti-SLAPP provisions, the moving party bears the initial onus of satisfying the court that the other party’s proceeding arises from an expression made by the moving party that relates to a matter of public interest.

39In the case at bar, Mr. Karahalios has met the onus of showing that the proceeding against the Respondents arises from an expression by him that relates to a matter of public interest.

40The 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.⁵

41In McLaughlin v. Maynard,⁶ allegedly defamatory comments about the acts or omissions of a mayor and a municipal council member in the discharge of their public duties were held to be expressions relating to matters of public interest.

42In Niagara Peninsula Conservation Authority v. Smith,⁷ comments about the governance of a conservation authority that was also a registered charity were held to be expressions relating to matters of public interest.

43In Rizvee v. Newman,⁸ the defendant’s defamatory social media postings about the character and suitability for election of a candidate for election to Parliament were held to be expressions relating to matters of public interest. Justice Fitzpatrick stated at para. 64 that: “While there is no static list of topics which qualify as matters of public interest, politics is the classic example of such a topic.” At para. 122, he added:

122. It is an obvious statement that free speech is one of the fundamental underpinnings to any democratic, open and tolerant society. The right to offer commentary free from fear of litigation is especially critical to our election process. How are citizens to make an informed, independent and objective selection of who should lead us without the exchange of ideas, critical or otherwise? The public has a strong interest in its citizens exchanging ideas respecting the merits of a candidate for public office. ….

44It is almost inherent or by definition that comments about the internecine and external disputes of a political party and its members about party governance, party policy, and party communications to members and to the public are expression that relates to a matter of public interest.

45In the case at bar, the factual background to the Party’s application reveals that the application arose from Mr. Karahalios’s expression about matters of public interest.

46The Party submits, however, that its application is not about what Mr. Karahalios expresses, about which he has freedom of expression, but rather the application is about the manner or means used by the Respondents to express their views, which the Party alleges is an unlawful means.

47I disagree. The facts reveal that at its heart or essence, the Party’s application is designed to discourage the Respondents from expressing themselves on matters of public interest and to discourage participation in debates on matters of public interest. The application uses litigation as a means of limiting expression on matters of public interest. In other words, the application is precisely the kind of application for which the anti-SLAPP provisions were introduced to counter. I conclude that the Respondents have met the onus of showing a communication on a matter of public interest.

48If the moving party meets the onus of showing a communication on a matter of public interest, under the anti-SLAPP provisions, the onus of proof shifts to the other 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 by the other party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.⁹

49The authorities hold that 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.¹⁰

50Some courts have held that the burden of proof under section 137.1 of the Courts of Justice Act is the civil standard of proof on the balance of probabilities,¹¹ but other courts have held that the standard of proof is below the civil standard and 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.¹²

51Mr. Karahalios submits that the Party has not meet the onus of showing that there is substantial merit to its proceedings, and indeed he submits that it is impossible for the PC Party to meet the onus because political parties, as such, do not have the standing to sue or be sued.¹³

52There is traction to Mr. Karahalios’s submission about the legal status of the Party, and if correct, it would be dispositive of his anti-SLAPP motion in his favour; however, the legal status of unincorporated association’s like a political party is more complex than Mr. Karahalios would have it, and there are means pursuant to the law of agency, contract, and trust and sometimes statute by which an unincorporated association or some representative for the association’s collective of members may enforce legal rights or obligations, most particularly the rights and obligations of membership. Since, I shall be granting Mr. Karahalios’s anti-SLAPP motion on its merits, I shall not decide this point about the status of the Party, and I shall assume without deciding that his technical argument fails. Thus, I shall address whether the Party has met the test that would justify its application going forward.

53Given that the Party has chosen to commence a proceeding by application and not by action and given that its articulation of the basis of its claims against Mr. Karahalios is fuzzy, it is unclear what is the legal theory of the Party’s application. However, given the application, the supporting affidavits, and its factum a generous reading, it appears that the Party is advancing claims of breach of contract, breach of confidence, and unjust enrichment, to underpin its claims for declaratory relief, injunctive relief, and damages or a constructive trust.

54Thus, the Party in its proceeding against Mr. Karahalios alleges that he has breached the Party Constitution, the Licence Agreement, and the Confidentiality Agreement, misappropriated confidential and proprietary information, and caused significant and irreparable harm to the Party which has an obligation to protect the confidences of its members and to protect its own confidential information.

55Based on the evidence presented by both parties on the anti-SLAPP motion and on the injunction motion, my conclusions are that: (a) there is no reasonable grounds to believe that the Party’s unjust enrichment claims and breach of license claim has any merit much less substantial merit; (b) giving the Party the benefit of the doubt and assuming that the remaining breach of contract and breach of confidence claims have substantial merit, the Party has not met the onus of showing that Mr. Karahalios has no valid defence to these claims; rather, it appears that he has reasonably strong factual and legal defences.

56To explain these conclusion, I begin by saying that I see no basis for an unjust enrichment claim, the elements of which are: (1) the defendant being enriched; (2) a corresponding deprivation of the plaintiff; and, (3) no juristic reason for the defendant's enrichment at the expense of the plaintiff.¹⁴

57At its essence and as revealed by its name, a claim for unjust enrichment is about an unlawful, inequitable, and unjustifiable transfer of wealth. There was no transfer of wealth to Mr. Karahalios in the case at bar. The information in this case was not used for its monetary value but for its communicative value in the blood sport of politics. In the case at bar, there is no enrichment of any of the parties and no deprivation of the wealth of the Party. In the case at bar, it simply makes no sense to speak of enrichments and deprivations and it makes no sense to speak of juristic reasons for any enrichment.

58With respect to the Licence Agreement signed by Mr. McNaughton, I see no basis for a breach of contract claim against Mr. Karahalios. Mr. Karahalios is not a signatory to the License Agreement and apparently was surprised to learn that such agreements even exist in the realm of politicking.

59I do see the basis for a breach of contract claim with respect to the Party’s Constitution and with respect to the confidentiality agreement. It is, however, difficult to conclude that these claims have substantial merit, but whatever their merit, the Party has not met the onus of showing that Mr. Karahalios has no valid defence to these claims; rather, it appears that he has reasonably strong factual and legal defences.

60The elements of a claim of breach of confidence are: (1) the plaintiff imparts information having a quality of confidence (confidential information); (2) the information was imparted in circumstances in which an obligation of confidentiality arises (communication in confidence); and (3) the defendant makes an unauthorized use of the information (misuse of information).¹⁵

61It is reasonably arguable that the information alleged to have been misappropriated from the leadership race list was not confidential, and it is reasonably arguable that the information was not imparted in circumstances with an obligation of confidentiality. The Party members would have anticipated that the information was for the private use of the Party and its members but that is different than imparting some aura of confidentiality. The address information was meant to be used much in the way that Mr. Karaholios used it for the purposes of debate within the party. In any event, it is reasonably arguable that Mr. Karahalios did not disclose any confidential information but rather gathered his own information from non-confidential sources, some of which were in the public domain.

62For similar reasons, it is reasonably arguable that he did not breach the Constitution of the Party with respect to the use of information found in the Registry. Assuming that the information was confidential, which is debatable, and that Mr. Karahalios used the information without the permission of the Party Executive, it is reasonably arguable that he did not misuse the information. Mr. Karahalios did not sell the information for commercial purposes and he did not use it for personal gain. He used the information for purposes for which it was intended; i.e., in order to communicate with Party members about the Party’s policies, politics, and governance.

63I, therefore, conclude that the Party has not met the onus of showing that Mr. Karahalios has no valid defence to these claims. This conclusion is dispositive of the anti-SLAPP motion in Mr. Karahalios’s favour, but I shall go on to consider whether there is a public interest in permitting the Party’s application continuing that outweighs the public interest in protecting Mr. Karahalios’s freedom of expression.

64Under the anti-SLAPP provisions, if the moving party meets the onus of showing a communication on a matter of public interest, 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, in the immediate case the plaintiff, must provide credible and compelling evidence of damages that are likely to be proved at trial.¹⁶ The court will examine on a case-by-case basis whether the public interest in access to justice and in the administration of justice outweighs the public interest in freedom of expression and in protecting communications on matters of public interest.¹⁷

65In the case at bar, the public interest in the continuance of the Party’s application is modest and vastly outweighed by the public interest in protecting Mr. Karahalios’s expression on matters of public interest. There is a strong public interest in access to justice for claimants but in the case at bar, the Party the party has suffered no monetary loss, its claim for declaratory relief is weak, and insofar as the alleged violation of its Constitution is concerned, the Party has already taken disciplinary action by revoking Mr. Karahalios’s membership and banishing him as a spectator from Party events. In the case at bar, the public interest in access to justice and in the administration of justice does not outweigh the public interest in freedom of expression and in protecting communications on matters of public interest.

66Before concluding the discussion, it is helpful to refer to some of the recent caselaw about the Anti-SLAPP legislation.¹⁸ In McLaughlin v. Maynard,¹⁹ a mayor and a member of the municipal council sued a resident who allegedly posted on social media critical comments about their acts and omissions in public office. Justice Hurley granted the resident’s anti-SLAPP motion and emphasized the importance of freedom of expression to the healthy functioning of a democracy. Justice Hurley stated at para. 69:²⁰

69. As stated earlier, freedom of expression is a constitutional right. I think that it is particularly important that people be free to express their disagreement with the acts or omissions of municipal politicians without fear that they will be sued. Unlike many decisions made at the provincial or federal level of government, those made by municipal politicians will often have a direct and immediate impact on the quality of life in the community. People would be reluctant to express their opposition if they knew that their use of social media could result in a lawsuit by a public official unhappy with the criticism, with all the attendant stress and financial burden such litigation entails.

67In Niagara Peninsula Conservation Authority v. Smith,²¹ the defendant in a defamation action about allegedly defamatory comments about the governance of a conservation authority and about the alleged conflicts of interests of some of the authority’s members was successful in having the action dismissed under the anti-SLAPP provisions.

68In Rizvee v. Newman,²² the plaintiff, who was an unsuccessful candidate for election to Parliament, sued the defendant, who in a variety of postings on social media maligned the plaintiff’s character and his suitability as a candidate for election. Justice Fitzpatrick held that the defendant’s comments were matters of public interest, but he held that the plaintiff had met the burden of proving that there is credible and compelling evidence supporting the plaintiff’s claim as being a serious one with a reasonable likelihood of success. However, Justice Fitzpatrick dismissed the plaintiff’s defamation action pursuant to the anti-SLAPP legislation, because the plaintiff did not show that the defendant had no valid defence and because the harm likely to be or have been suffered as a result of the defendant’s expression was not sufficiently serious and did not outweigh the public interest in protecting the defendant’s freedom of expression on a matter of public interest.

69For the above reasons, Mr. Karahalios’s anti-SLAPP motion should be granted and the Party’s action should be dismissed. With the dismissal of the Party’s application, it follows that its motion for an interlocutory injunction fails.

D. Conclusion

D. Conclusion

70For the above reasons, the Party’s action is dismissed.

71If a judge dismisses a proceeding pursuant to the anti-SLAPP legislation, the moving party is entitled to costs on the anti-SLAPP motion and of the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.²³ If, in dismissing a proceeding the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party damages as the judge considers appropriate.²⁴

72I am not in a position to decide the matter of costs without further submissions from the parties. Accordingly, if the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Respondents’ submissions within 20 days of the release of these Reasons for Decision followed by the Party’s submissions with a further 20 days.

Perell, J.

Footnotes

1. 1R.S.O. 1990, c. 43.
2. 2Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(1).
3. 3Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(2).
4. 4Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(3).
5. 51704604 Ontario Ltd. v. Pointes Protection Assn., 2016 ONSC 2884; Grant v. Torstar Corp., SCC 61 at paras. 103-106; London Artists, Ltd. v. Littler, [1969] 2 All E.R. 193 (C.A.).
6. 62017 ONSC 6820.
7. 72017 ONSC 6973 (Ont. S.C.J.).
8. 82017 ONSC 4024 (Ont. S.C.J.).
9. 91704604 Ontario Ltd. v. Pointes Protection Assn., 2016 ONSC 2884; United Soils Management Ltd. v. Mohammed, 2017 ONSC 4450; Rizvee v. Newman 2017 ONSC 4024; McLaughlin v. Maynard, 2017 ONSC 6820; Niagara Peninsula Conservation Authority v. Smith, 2017 ONSC 6973.
10. 10Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC 6785.
11. 11Rizvee v. Newman 2017 ONSC 4024; McLaughlin v. Maynard, 2017 ONSC 6820 at para. 15.
12. 12Platnick v. Bent, 2016 ONSC 7340; Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC 6785; United Soils Management Ltd. v. Mohammed, 2017 ONSC 4450; Niagara Peninsula Conservation Authority v. Smith, 2017 ONSC 6973.
13. 13Munro v. Canada (Attorney General), [1993] O.J. No. 2370 at para. 8; E.D.L.P. v. Children's Aid Society of Metropolitan Toronto, [1995] O.J. No. 3814 at para. 14 (Gen. Div.); Zundel v. Liberal Party of Canada (1999), 1999 CanLII 14889 (ON SC), 60 C.R.R. (2d) 189 at paras. 8-9 (Gen. Div.), aff'd (1999) 1999 CanLII 2190 (ON CA), 46 O.R. (3d) 410 (C.A.), leave to appeal ref’d, [1999] S.C.C.A. No. 593; J.R.S. v. Glendinning (2000), 49 C.P.C. (4th) 360 at para. 27 (S.C.J.); MacAlpine v. Progressive Conservative Party of Ontario, [2003] O.J. No. 3089 at paras. 26-31 (S.C.J.); Longley v. Canada (Attorney General), 2007 ONCA 852 at paras. 117-121, leave to appeal ref’d, [2008] S.C.C.A. No. 41; Guergis v. Novak, 2012 ONSC 4579 at paras. 40-45, aff'd 2013 ONCA 449 at para. 89; Longley v. Canada (Attorney General), 2007 ONCA 852 at para. 116, leave to appeal ref’d, [2008] S.C.C.A. No. 41.
14. 14Garland v. Consumers' Gas Co., 2004 SCC 25 at para 30; Reiter v. Hollub, 2017 ONCA 186, at para. 17.
15. 15Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574; Cadbury Schweppes Inc. v. FBI Foods Ltd., 1999 CanLII 705 (SCC), [1999], 1 S.C.R. 142; Coco v. A. N. Clark (Engineers) Ltd., [1969] R.P.C. 41 (Ch.).
16. 16Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC 6785 at paras. 82-92; Fortress Real Developments Inc. v. Rabidoux, 2017 ONSC 167 at paras. 35-37; Rizvee v. Newman 2017 ONSC 4024; United Soils Management Ltd. v. Mohammed, 2017 ONSC 4450.
17. 17Platnick v. Bent, 2016 ONSC 7340.
18. 18Fortress Real Developments Inc. v. Rabidoux, 2017 ONSC 167; Veneruzza v. Storey, 2017 ONSC 683; Hudspeth v. Whatcott, 2017 ONSC 1708; Thampsan v. Cahodes, 2017 ONSC 2590; Rizvee v. Newman, 2017 ONSC 4024; United Soils Management Ltd. v. Mohammed, 2017 ONSC 4450; Montour v. Beacon Publishing Inc., 2017 ONSC 4735; Levant v. Day, 2017 ONSC 5956; McLaughlin v. Maynard, 2017 ONSC 6820; Niagara Peninsula Conservation Authority v. Smith, 2017 ONSC 6973.
19. 192017 ONSC 6820.
20. 20See also Montague (Township) v. Page (2006), 2006 CanLII 2192 (ON SC), 79 O.R. (3d) 515 at para. 29 (S.C.J.).
21. 212017 ONSC 6973.
22. 222017 ONSC 4024.
23. 23Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(7).
24. 24Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(9).