COURT FILE NO.: CV-15-121473-00 DATE: 20181127 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Nicandro Papa, also known as Nick Papa, Plaintiff AND: Frank Zeppieri, Defendant
BEFORE: Copeland J.
COUNSEL: Paul H. Starkman, for the Plaintiff Iain A.C. MacKinnon, for the Defendant
HEARD: November 13, 2018
Endorsement
Introduction
[1] The defendant brings a motion pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to dismiss the defamation action brought by the plaintiff on the basis that the expression at issue relates to matters of public interest. The plaintiff resists the motion.
The Statements at Issue
[2] The plaintiff was a town councillor in the Town of Richmond Hill. In the fall of 2014, he was running for re-election. The defendant lives in Richmond Hill. It is clear from the record on the motion that the defendant was concerned about a number of development issues, and that he disagreed with positions taken by the plaintiff in his role as a town councillor.
[3] The statements pleaded in the claim as being defamatory are statements made by the defendant leading up to and during the 2014 municipal election campaign. It is clear from the record that the statements were part of a campaign by the defendant to encourage people not to vote for the plaintiff’s re-election.
[4] There are four statements at issue in the claim:
The defendant sent an email dated February 19, 2014 to a group of residents of Richmond Hill concerning a proposed townhouse development (“the Weldrick development”) (at tab 39 of the motion record). The email has some introductory information about a public information meeting that the plaintiff was hosting in his role as a town councillor, and some background information about the proposed development. The plaintiff claims that the following words in the email are defamatory: “We know Nick Papa: Has not done anything to get Sorrento Drive extended. Supports high density development. Gets most of his campaign contributions from Developers.” The plaintiff claims that he never supported the Weldrick development, and that saying that he did is untrue and defamatory.
A flyer which was distributed to houses in Richmond Hill in October 2014 in advance of the municipal election (at tab 47 of the motion record). The flyer is a reprint of a news article from April 2012, with a heading added: “FOR MORE INFORMATION GOOGLE ‘UNWANTED NICK PAPA’”, and highlighting comments attributed to Mr. Papa in the article. The plaintiff claims that the following statement about the Weldrick development and Mr. Papa quoted in the article from the defendant is defamatory: “‘It was totally out of character for the neighbourhood. It would have destabilized the whole area,’ Zeppieri said. ‘They wanted to breach the official plan, which is the result of hours upon hours of public and professional input. [Ours] was a grassroots initiative from pretty well 700 households in direct opposition. But we had to fight against our own local councilor, which is disgusting ’” [emphasis added]. The plaintiff claims that he never supported the Weldrick development, and that saying that he did is untrue and defamatory. On this statement, there is a contested issue as to whether the statement was made by the defendant, as there is limited evidence that he was the one who distributed the flyer. There is also a contested legal issue as to whether the distribution of the flyer constituted a republication, as the original article was from 2012. If there was no republication by the distribution in October 2014, then the original date of the article of April 2012 would have been outside the limitation period. Ultimately, it is not necessary for me to consider either of these issues.
The defendant took out an advertisement in a local paper, the Richmond Hill Liberal, in the October 23, 2014 issue (at tab 44 of the motion record). The advertisement has a photo of the plaintiff, and superimposed over it the words: “ON OCT 27 TH SHOW HIM, HE IS UNWANTED. Nick Papa Ward 5 Councillor. For more information google ‘Unwanted Nick Papa’”. The plaintiff claims that this advertisement associates him with criminal activity or with criminals.
The defendant created a Facebook page made up largely of clippings from news articles about the plaintiff, including quotations by the plaintiff from news articles (at tab 48 of the motion record). The top of the Facebook page includes a photo of the plaintiff, with the word “UNWANTED” superimposed over it, and next to that the words: “Unwanted: Nick Papa Ward 5 Councillor”. In several places on the many pages of the Facebook page, there are photos of the rapper and celebrity Snoop Dogg (among other celebrities, including the Three Stooges). The plaintiff claims that the Facebook page suggests that he is wanted for criminal conduct and associates with Snoop Dogg, who uses drugs and is associated with criminal activity.
Applicable Law
[5] The Ontario Court of Appeal recently considered the interpretation of ss. 137.1 to 137.5 of the Courts of Justice Act, R.S.O. 1990, c. C.43, relating to proceedings arising from expression that relates to a matter of public interest. 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 (“Pointes”), and its companion cases set out a clear analytical framework for the consideration of a motion to dismiss a proceeding under s. 137.1(3) and (4).
[6] Stated briefly, the approach is as follows. First, a defendant must demonstrate that the litigation arises out of his or her expression on a matter relating to the public interest (s. 137.1(3)). If the defendant meets that onus, the onus shifts to the plaintiff to demonstrate that the proceeding clears the merits-based threshold in s. 137.1(4)(a), and the public interest hurdle in s. 137.1(4)(b).
[7] I will discuss in more detail the nature of the analysis under each branch in the course of my analysis below.
Plaintiff’s Preliminary Objection Regarding the Evidence – Lack of an Affidavit from the Defendant
[8] Counsel for the plaintiff in both his written and oral argument took objection to the absence in the defendant’s motion record of an affidavit from the defendant.
[9] Rather than file his own affidavit, the record filed by the defendant is a law clerk’s affidavit, appending what is essentially the documentary record in relation to the statements at issue. In particular, the affidavit includes items such as the publications at issue in the claim, other news articles about the developments that underlie the statements at issue in the claim, contemporaneous letters written by the defendant to municipal officials in relation to the developments at issue, and videos and transcripts of town council meetings providing evidence of statements made by the plaintiff in his role as a town councilor. The defendant relies on this evidence to show both the public interest in the subject matter of the defendant’s statements, and the factual basis for his statements to ground a defence of fair comment.
[10] I do not accept that it is necessary in every case that a defendant who brings a motion under s. 137.1 file his or her own affidavit as part of the record.
[11] For the most part, the analysis under s. 137.1 as outlined in Pointes is objective. The assessment of whether speech is on a matter relating to the public interest is objective: Pointes at para. 65. The assessment of the merits of the case and available defences is objective: Pointes at paras. 67-84. Further, the particular issues in relation to merit and defences in this case are objective (except for the malice aspect of the fair comment defence), as I outline at paragraphs 45 and 55-56 below. The court’s assessment of the balancing of the harm (if any) of the speech and the public interest is also objective in the sense that it is based on the court’s assessment of the balance, not on the subjective value that the defendant assigns to the speech.
[12] Thus, the legal tests that I must apply, for the most part, are based on an objective reading of the statements in their full context. When I refer to the full context, I mean both the immediate context of the statements (i.e., the words around them on the page), and the context surrounding the statements, which in this case includes the history of the developments at issue, the various town council meetings where the plaintiff spoke, and the context of a municipal election in the fall of 2014. In addition, I must consider objectively the factual basis for the defendant’s statements, to the extent that fair comment is in issue.
[13] Given the objective nature of most of the legal issues in this motion, and the nature of the documentary record, I do not find it essential on the record in this case that there be an affidavit from the defendant.
[14] That said, to the extent there is a subjective aspect to any part of the analysis, depending on the rest of the record, a defendant takes his or her chances if they do not file an affidavit addressing areas where their subjective intent matters (for example, to the extent that the speaker’s motivation is an issue in the public interest balancing under s. 137.1(4)(b): see Pointes at para. 94, or as part of the defence of fair comment).
[15] Having said all this, I am cognizant that some aspects of the affidavit filed on behalf of the defendant contain hearsay, and double hearsay. Although hearsay can be admissible on a motion, there are several aspects of the evidence or record that counsel for the defendant referred to in argument that I find are not appropriate to rely on in the absence of it coming in an affidavit from the defendant.
[16] My concerns relate both to reliability of hearsay and double hearsay, and to some extent to relevance. In particular in this case, some examples of evidence which I do not rely on are the following. At tab 15 of the motion record, the defendant has produced notes made by the defendant of a meeting he had with the Mayor of Richmond Hill. In these notes, the Mayor states a view on what he understands the plaintiff’s position to be about a particular development. This is at best double hearsay, since neither the Mayor, nor the defendant filed an affidavit.
[17] At tab 26 of the motion record, a submission to the OMB by the defendant is included. Counsel for the defendant sought to rely on statements in the first paragraph about numbers of residents concerned about the Weldrick development. I am concerned about the hearsay aspect of this evidence, but also about its relevance. The absolute numbers of people interested in an issue is not a measure of whether it has public interest value. Indeed, this point is made in Grant v. Torstar Corp., [2009] 3 S.C.R. 640, 2009 SCC 61, at para. 102.
[18] Finally, in relation to the Snoop Dogg photos on the Facebook page, counsel for the defendant referred in argument to paragraph 26 of the statement of defence, where it is pleaded that the defendant put the photos there to draw more internet traffic (from search engines). In the absence of an affidavit from the defendant attesting to this fact, I am not prepared to rely on the pleading alone to support that proposition, as it is not evidence.
Are the Statements Expression Relating to a Matter of Public Interest?
[19] The defendant argues that his statements relate to matters of public interest, in particular, development issues in the context of a municipal election, and the plaintiff’s record as a town councillor on development issues when the plaintiff was running for re-election.
[20] The plaintiff argues that the speech is not on a matter of public interest. His primary argument in his factum on this issue is based on the lack of an affidavit from the defendant on this issue. As I have explained above, I find that it is not essential that the defendant himself provide an affidavit. The assessment of whether particular speech relates to a matter of public interest is an objective exercise. I find the record is sufficient for me to make that assessment.
[21] The plaintiff further argues that by October 2014, the Weldrick development at issue was clearly not proceeding, and for this reason, speech about the development was no longer a matter of public interest.
[22] Before considering whether the defendant’s expression relates to a matter of public interest, I will address briefly based on Pointes the purpose of s. 137.1, and the nature of the public interest requirement under s. 137.1(3).
[23] In Pointes, Justice Doherty stresses that the intent of the s. 137.1 anti-SLAPP legislation is to protect and foster a broad spectrum of expression relating to matters of public interest. In particular, at paras. 45 and 48, he states:
The purpose of s. 137.1 is crystal clear. Expression on matters of public interest is to be encouraged. Litigation of doubtful merit that unduly discourages and seeks to restrict free and open expression on matters of public interest should not be allowed to proceed beyond a preliminary stage. Plaintiffs who commence a claim alleging to have been wronged by a defendant’s expression on a matter of public interest must be prepared from the commencement of the lawsuit to address the merits of the claim and demonstrate that the public interest in vindicating that claim outweighs the public interest in protecting the defendant’s freedom of expression.
Instead of creating new defences, removing or modifying existing causes of action, or providing for a more vigorous abuse of process remedy, s. 137.1 seeks to achieve the purposes stated in s. 137.1(1) by first, distinguishing between claims that arise from an expression that relates to a matter of public interest and other claims, and second, by providing for the early and inexpensive dismissal of claims based on expression relating to matters of public interest, either because those claims lack sufficient merit to proceed, or because the public interest is, on balance, not served by allowing the action to proceed to an adjudication on the full merits. [and see generally paragraphs 35-48].
[24] The requirements of ss. 137.1(3) and 137.1(4)(b) should be understood in light of this overarching purpose.
[25] Justice Doherty’s reasons in Pointes are clear that s. 137.1(3) places the onus on the defendant (the moving party) to satisfy the motion judge that: (i) the proceedings arise from an expression made by the defendant; and (ii) the expression relates to a matter of public interest. The word “satisfies” indicates that the defendant must establish both criteria on the balance of probabilities: Pointes at para. 51.
[26] “Expression” is defined in s. 137.1(2). There is no issue in this case that the defendant’s statements constituted expression.
[27] “Public interest” is not defined in the legislation. Pointes is clear that the essential test to determine whether expression relates to a matter of “public interest” under s. 137.1(3) requires asking: what is the expression about, or what does it pertain to? (Pointes, para. 54).
[28] Justice Doherty emphasizes that the meaning of “public interest” in s. 137.1(3) must be construed broadly so as to conform to the purposes of s. 137.1(1). He states at para. 55-65 of Pointes:
The phrase “public interest” in s. 137.1(3) is not qualified in any way. It does not require that the expression actually furthers the public interest. A qualitative assessment of the expression’s impact on the issue to which it is directed is not part of the s. 137.1(3) inquiry. Nothing in the section justifies any distinction among expressions based on the quality, merits, or manner of the expression. An expression that relates to a matter of public interest remains so if the language used is intemperate or even harmful to the public interests. For example, a statement relating to a matter of public interest that is demonstrably false is nonetheless an expression relating to a matter of public interest [citation omitted].
What is “a matter of public interest”? Like virtually all of the motion judges who have wrestled with this issue, I find considerable assistance in the judgment of the Supreme Court of Canada in Grant v. Torstar Corp. [citation omitted]. . . .
There is no exhaustive list of topics that fall under the rubric “public interest”. Some topics are inevitably matters of public interest. The conduct of governmental affairs and the operation of the courts come to mind. . . .
In summary, the concept of “public interest” as it is used in s. 137.1(3) is a broad one that does not take into account the merits or manner of the expression, nor the motive of the author. The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication. An expression may relate to more than one matter. If one of those matters is a “matter of public interest”, the defendant will have met its onus under s. 137.1(3).
[29] In two of the companion cases to Pointes, Justice Doherty affirms the important public interest value of speech during election campaigns, in particular, speech directed at a candidate’s suitability to hold elected office: Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690 at para. 19; Armstrong v. Corus Entertainment Inc., 2018 ONCA 689 at para. 31.
[30] I turn then to the defendant’s expression in this case. I have no difficulty in concluding that each of the four statements that are the basis of the plaintiff’s cause of action relate to matters of public interest. They are statements by a resident of a municipality interested in development issues, about a councillor who is running for as a candidate for re-election, about the candidate’s record on development issues within the jurisdiction of the municipality, made during the election campaign (and in the case of the February 19, 2014 email, in the lead up to the election campaign).
[31] This type of election speech clearly relates to matters of public interest. Other residents of the town – the voters – have a public interest in hearing speech about the record of a candidate for re-election. In my view, this is not a case where whether the speech relates to matters of public interest is a close call. It is well within the type of speech discussed in Grant v. Torstar Corp. at paras. 99-109.
[32] I note as well that the record is clear that the defendant was very involved in speaking about development issues in the community, by way of attendance at meetings, letters, and speaking to the media. The record is also clear that the development issues that are the subject matter of the statements at issue were the subject of repeated discussion at Richmond Hill Town council. Both of these bodies of evidence provide further support that the defendant’s statements relate to matters of public interest.
[33] A particular focus of the plaintiff’s position that the defendant’s expression was not in the public interest is the argument that it was dated, because the events involving the development took place in 2011 and 2012, and by the time of the election in the fall of 2014, the development at issue was not proceeding. In making this argument the plaintiff relies on the discussion in paragraph 61 of Pointes regarding the difference between matters of public interest and matters that the public is merely curious about or has a prurient interest in.
[34] With respect, in my view the plaintiff is simply incorrect to suggest that in the context of electoral speech, speech directed at a candidate’s prior record as a public office-holder can become too old to be of public interest.
[35] However, even assuming for the sake of argument that some very, very dated matter could possibly be so old as to no longer be a matter of public interest (although I find this difficult to conceive), the defendant’s speech in this case does not fall in that category.
[36] The defendant’s statements related to his views about the plaintiff’s actions as a town councillor in the immediately previous electoral term. The defendant made the statements at issue during the election to determine if the plaintiff would be re-elected for another term. I can think of few more appropriate times to discuss a candidate’s record in office in the previous term, than when the candidate is running for re-election. The defendant’s speech was not past its public interest “best-before” date.
[37] The plaintiff also argued that the defendant’s speech fell within the scope of “prurient” speech. I do not accept this characterization. This was not speech about the plaintiff’s personal life: Grant v. Torstar Corp. at para. 102. It was speech about his actions as a town councillor, and about development issues which were squarely within municipal jurisdiction.
[38] The plaintiff also argues that some of the statements have the effect of suggesting that he associates with criminals. Although I do not accept that a reasonable trier of fact could draw that inference, in light of the comments of the Court of Appeal at para. 55 of Pointes, I find that this issue is properly dealt with under the s. 137.1(4) analysis (both of the merits and public interest), rather than under the s. 137.1(3) assessment of whether the speech relates to a matter of public interest.
Does the Plaintiff’s Claim Have Substantial Merit? Does Defendant Have a Defence?
[39] The defendant argues that a reasonable trier of fact could not reasonably find that the plaintiff’s claim has substantial merit, or that the defendant has no valid defence. In particular, the defendant argues that the words in their natural and ordinary meaning do not have a defamatory sting. He further argues that a reasonable trier of fact could only conclude that he has a defence of fair comment.
[40] The plaintiff argues that his claim has substantial merit. He argues that the statements made by the defendant are false. He further argues that there is not a factual basis for a defence of fair comment. The plaintiff also cautions the court not to exceed its screening role discussed in Pointes, and not to treat the motion as akin to a summary judgment motion.
[41] In Pointes, Justice Doherty held that once a defendant has made a showing under s. 137.1(3) that his or her speech relates to a matter of public interest, the onus of proof shifts to the plaintiff on a balance of probabilities regarding the assessment of the merits of the claim under s. 137.1(4): Pointes at para. 68.
[42] The plaintiff’s burden at this stage is to persuade the motion judge that a trier of fact could reasonably conclude that the plaintiff’s claim has “substantial merit”, and that the defendant has “no valid defence.” If the motion judge decides that both fall within the range of conclusions reasonably available on the motion record, then the plaintiff will have met his onus under s. 137.1(4)(a). The judge’s role at this stage is a screening role, not a fact-finding role: Pointes at paras. 69-84.
[43] I find that a reasonable trier could not conclude that the plaintiff’s claim has substantial merit. I further find that a reasonable trier could not conclude that the defendant has no valid defence of fair comment. I will address each of these in turn.
[44] Regarding the strength of the plaintiff’s claim, I find that no reasonable trier could conclude that the plaintiff’s claim has substantial merit because assessed reasonably in context, it would not be reasonable for a trier to conclude that the defendant’s statements have the “sting” to make them defamatory.
[45] The law is well-established that for a statement to be defamatory, a trier of fact must find that the statement would, when considered in its ordinary meaning by a reasonable and fair-minded reader, tend to lower to a plaintiff’s reputation in the estimation of right‑thinking members of society, or to expose a person to hatred, contempt or ridicule. The meaning of a particular communication should be considered from the perspective of a reasonable person who is reasonably thoughtful and informed. A degree of common sense must be attributed to listeners/readers: Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 at para. 62; Guerguis v. Novak, 2013 ONCA 449 at paras. 37-38. In the context of considering this on a s. 137.1 motion, I have to consider whether a reasonable trier could make that finding.
[46] I find that a reasonable trier could not make the finding that the statements would tend to lower the plaintiff’s reputation in the estimation of reasonable members of society.
[47] Regarding the February 19, 2014 email, and the flyer, I find that the plaintiff has not satisfied me that a reasonable jury could reasonably find that statements that the plaintiff had not done anything to get Sorrento Drive extended, supports high density development, gets most of his campaign contributions from developers, or that residents felt they had to fight against their councilor on a development issue have the sting required to be defamatory. I note than the plaintiff did not plead any innuendo from either the February 19, 2014 email or the flyer.
[48] Regarding the “Unwanted” advertisement and the Facebook page, the plaintiff argues that the effect of both of these publications is to suggest that he is a criminal, or that he associates with criminals. With respect, I am unable to find that a reasonable and fair-minded reader would reach that conclusion from either publication.
[49] I accept that the “Unwanted” advertisement is a play on words, or visual pun, from a “Wanted” poster. But I find that no reasonable jury could conclude, in the context of an election campaign, that the advertisement suggested that the plaintiff was a criminal or associated with criminals.
[50] An election is a choice. In an election, voters get to choose and vote for who they “want”. I note that the advertisement expressly referred to the election. The advertisement stated “On Oct 27 TH Show him, he is unwanted”, and then stated the plaintiff’s name and “Ward 5 Councillor”. October 27, 2014 was the date of the election. In my view no reasonable jury could conclude that this was an assertion that the plaintiff was a criminal or associated with criminals. Rather, it was very clearly a call not to vote for the plaintiff. No reasonable jury could conclude that there was a defamatory sting to this advertisement.
[51] With respect to the Facebook page, for the most-part it is made up of snippets from news articles, including quotations from the plaintiff. The plaintiff objects primarily to two things about the Facebook page. The first objection is that it says “Unwanted: Nick Papa Ward 5 Councillor”. In this respect, the plaintiff’s argument is the same as regarding the advertisement I have addressed in the preceding paragraphs. And my conclusion is the same. No fair-minded reader would think that “Unwanted” in this context suggest that the plaintiff is involved in criminal conduct or associates with criminals.
[52] The plaintiff’s second objection to the Facebook page is that it includes pictures of the rapper and celebrity Snoop Dogg. The plaintiff submits that the effect of the Facebook page is to associate him with a person who uses drugs and is associated with criminal activity (Snoop Dogg). I note that in considering this issue, I do not consider the defendant’s assertion in his statement of defence that he included the Snoop Dogg pictures only to draw more traffic to the Facebook page. There is no actual evidence of this in the motion record, since the defendant did not file an affidavit.
[53] However, I do not accept that a fair-minded reader would take from the photos of Snoop Dogg on the Facebook page that the plaintiff associated with criminals or drug users. Frankly, I think a fair reader would just be puzzled as to why Snoop Dogg was there. Taking the Facebook page as a whole, I find that no reasonable jury could conclude that it had a defamatory sting.
[54] Even if the statements could reasonably be found to have some minimal defamatory sting, in my view a reasonable jury could only find that the defendant has a valid defence of fair comment.
[55] The elements of the defence of fair comment were set out by the Supreme Court of Canada in WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420, 2008 SCC 40 at paras. 28-53.
[56] In my view, a reasonable jury would conclude that the defendant has a defence of fair comment with respect to each of the four statements. I have already outlined above that the statements were on a matter of public interest. In my view they are also sufficiently based in fact. Regarding the Weldrick development, although the plaintiff ultimately voted against the development at the town council meeting of June 21, 2011, I find that his comments at the town council meetings of March 21 and 23, and June 21, 2011, as well as quotations attributed to the plaintiff in contemporaneous newspaper articles, are sufficient factual basis that a person could honestly express the opinion that the defendant expressed in the statements at issue, and in particular the statements that residents had to fight against their own councillor regarding the Weldrick development, and that the plaintiff supports high density development.
[57] Similarly, regarding the Sorrento Road extension, the plaintiff’s comments at the town council meeting of July 27, 2011, in particular his stated desire to “delay” the road, are a sufficient factual basis that a person could honestly express the opinion that the plaintiff had not done anything to get Sorrento Drive extended.
[58] The plaintiff argues that the statements lack any reference to the factual foundation within the statements (see WIC Radio at paras. 31-34). Although I accept that the statements are light on explicitly outlining the factual foundation, they are not devoid of stating the factual foundation. Further, in the context of the plaintiff being an elected official, and the factual basis for the statements being his own statements at public town council meetings, in my view the factual basis was at least implicit in the statements, and was sufficiently known to the listeners who mattered – residents of the town – to enable them to make up their own minds on the merits of the defendant’s statements.
[59] Lastly, with respect to malice, the onus regarding malice as it relates to fair comment lies with the plaintiff: WIC Radio at para. 28(e) and 52. I am cognizant that the defendant has not filed any affidavit evidence denying malice. But that is not his burden in relation to fair comment. The record before me on the motion does not contain evidence upon which a reasonable jury could find that the defendant was motivated by malice.
[60] Further, as I have outlined above, I do not accept that any reasonable jury could find that the “Unwanted” advertisement, or the pictures of Snoop Dog on the Facebook page could have the meaning of suggesting that the plaintiff associates with criminals. As such there is no need to consider the defence of fair comment regarding those aspects of the statements.
[61] I will not address the defendant’s specific arguments about whether the distribution of the flyer with the April 2012 newspaper article in October 2014 constituted a republication or not. If the defendant is correct on this issue, it would give rise to a limitation defence. Nor will I address the issue of whether there is a sufficient basis that it would be reasonable for a trier of fact to find that the defendant was the person who distributed that flyer. Neither counsel on the motion spent much time on these issues. Given my other findings, it is not necessary that I address them.
[62] In light of my finding that the plaintiff has not met the merits hurdle in s. 137.1(4)(a), it is not, strictly speaking, necessary for me to consider the balancing under s. 137.1(4)(b). But as subsection (b) leads me to the same conclusion, I will address it as well. Given the purposes of s. 137.1, and the context in this case of electoral speech, in my view the public interest balancing in this case is central enough that it is worth discussing, even if not strictly necessary to do so. Further, in the event I am wrong on my assessment of the merits of the plaintiff’s claim and available defences, I find that the analysis under s. 137.1(4)(b) is very clear-cut in this case, and within the type of case that Justice Doherty addressed at para. 99 of Pointes.
Is Any Harm Suffered by the Plaintiff as a Result of the Defendant’s Speech Sufficiently Serious that the Public Interest in Allowing the Proceeding to Continue Outweighs the Public Interest in Protecting the Expression at Issue?
[63] This branch of the analysis requires the court to consider what, if any, harm the plaintiff has suffered as a result of the defendant’s statements, and balance that harm (and the public interest in allowing redress for it) against the public interest in protecting the expression at issue.
[64] The defendant argues that the plaintiff has not filed any evidence of harm to him or his reputation, other than bald allegations. He further argues that the public interest in his speech outweighs any harm to the plaintiff.
[65] The plaintiff argues that he is not required to establish damages at this stage. He further argues that the record does contain evidence of harm to his reputation. He also argues that the value of the defendant’s expression at issue is low. He argues that there is a public interest in preventing misrepresentation about the record of a candidate in the context of an election that weighs in the plaintiff’s favour.
[66] In Pointes, Justice Doherty describes the assessment under s. 137.1(4)(b) as “the heart of Ontario’s Anti-SLAPP legislation”. He continues (at para. 86):
The section declares that some claims that target expression on matters of public interest are properly terminated on a s. 137.1 motion, even though they could succeed on their merits at trial. The “public interest” hurdle reflects the legislature’s determination that the success of some claims that target expression on matters of public interests comes at too great a cost to the public interest in promoting and protecting freedom of expression.
[67] Under s. 137.1(4)(b), the plaintiff has the persuasive burden to satisfy the motion judge that the harm caused by the defendant’s expression is “sufficiently serious” that the public interest in allowing the plaintiff to proceed with his claim outweighs the public interest in protecting the defendant’s freedom of expression.
[68] Justice Doherty reaffirms the importance of reputation when assessing damage or likely damage to a plaintiff at paragraph 88 of Pointes:
The harm suffered or likely to be suffered by the plaintiff as a consequence of the defendant’s expression will be measured primarily by the monetary damages suffered or likely to be suffered by the plaintiff as a consequence of the impugned expression. However, harm to the plaintiff can refer to non-monetary harm as well. The preservation of one’s good reputation or one’s personal privacy have inherent value beyond the monetary value of a claim. Both are tied to an individual’s liberty and security interests and can, in the appropriate circumstances, be taken into account in assessing the harm caused to the plaintiff by the defendant’s expression: [citations omitted].
[69] However, at paragraphs 90-92 of Pointes, Justice Doherty also holds that some evidence of harm or likely harm is almost certainly required for the plaintiff to succeed under the balancing test:
On the s. 137.1 motion, the plaintiff must provide a basis upon which the motion judge can make some assessment of the harm done or likely to be done to it by the impugned expression. This will almost inevitably include material providing some quantification of the monetary damages. The plaintiff is not, however, expected to present a fully-developed damages brief. Assuming the plaintiff has cleared the merits hurdle in s. 137.1(4)(a), a common sense reading of the claim, supported by sufficient evidence to draw a causal connection between the challenged expression and damages that are more than nominal will often suffice.
The plaintiff cannot, however, rely on bald assertions in the statement of claim relating to damages, or on unsourced, unexplained damage claims contained in the pleadings or affidavits filed on the s. 137.1 motion. The motion judge must be able to make an informed assessment, at least at a general or “ballpark” level, about the nature and quantum of the damages suffered or likely to be suffered by the plaintiff: [citations omitted].
Equally important to the quantification of damages, the plaintiff must provide material that can establish the causal link between the defendant’s expression and the damages claimed. Evidence of this connection will be particularly important when the motion material reveals sources apart from the defendant’s expression that could well have caused the plaintiff’s damages. [emphasis added]
[70] Harm to the plaintiff is one side of the balance. The other side is the public interest in the expression. In Pointes, Justice Doherty explains that the assessment of public interest under s. 137.1(4)(b) is different than the assessment under s. 137.1(3) (at paras. 94 and 96):
Unlike the “public interest” inquiry in s. 137.1(3), in which the quality of the expression or the motivation of the speaker are irrelevant (see above at para. 65), both play an important role in measuring the extent to which there is a public interest in protecting that expression. Not all expression on matters of public interest serves the values underlying freedom of expression in the same way or to the same degree. For example, a statement that contains deliberate falsehoods, gratuitous personal attacks, or vulgar and offensive language may still be an expression that relates to a matter of public interest. However, the public interest in protecting that speech will be less than would have been the case had the message been delivered without lies, vitriol, and obscenities: [citation omitted].
The public interest evaluations required under s. 137.1(4)(b) cannot be reduced to an arithmetic-like calculation. It would be misleading to pretend they can be. The assessments are qualitative and, to some extent, subjective. Because the balancing of the competing public interests will often be determinative of the outcome of the s. 137.1 motion, and because the analysis contains an element of subjectivity, it is crucial that motion judges provide full reasons for their s. 137.1(4)(b) evaluations.
[71] I turn then to the harm and public interest balancing in this case.
[72] The plaintiff’s evidence of harm caused by the defendant’s statements is exceedingly weak. In his motion record, the only evidence of damages by the plaintiff is a letter from another Richmond Hill resident stating his concerns about the “Unwanted” advertisement in the October 23, 2014 issue of the Richmond Hill Liberal (tab D of plaintiff’s responding motion record). This letter makes clear that the writer is in disagreement with the tone of the advertisement, but it does not actually provide any evidence of harm to the plaintiff.
[73] In cross-examination on his affidavit on the motion (questions 205-208), the plaintiff states in very vague terms that he believes his reputation was harmed by the plaintiff’s statements, and that some people won’t talk to him now, which he attributes to the defendant’s statements. In my view this type of evidence is that type of vague and bald assertions of harm that Justice Doherty cautioned against in Pointes at para. 91.
[74] The plaintiff also asserts in paragraph 21 of his affidavit on the motion that he believes he lost the 2014 election because of “the defendant’s campaign to ruin my reputation.” With respect, this is an unprovable allegation. Further, I have real concerns about the justiciability of damages for loss of an election.
[75] Lastly, given my finding that the merits of the claim are weak, and the plaintiff does not clear the merits hurdle under s. 137.1(4)(a), I find no factual basis to draw an inference of harm based on the content of the statements in the absence of evidence of actual harm: Pointes at para. 90.
[76] Balanced against this exceedingly weak evidence of harm to the plaintiff, is the defendant’s speech, which in my view has high public interest value. As I have already noted, it is political speech about the record of a candidate for re-election for municipal office, about issues within the jurisdiction of the municipality, made during a municipal election when the candidate was running for re-election. It is not the type of speech that was referred to in para. 94 of Pointes to be cautious with such as “deliberate falsehoods, gratuitous personal attacks, or vulgar or offensive language”.
[77] As outlined above, I find that the plaintiff’s claim is weak on the merits, and that the defendant has a viable defence of fair comment. But even if I am wrong in that conclusion, the defendant’s speech was clearly aimed at addressing the plaintiff’s record on development issues, an issue of public interest in the context of the re-election campaign. If I am wrong on the issue of fair comment, and the defendant crossed the line such that the defence is not available to him for some or all of the statements, he did not cross it so far, or in such a manner, that he should face a defamation action. In my view, courts should be very cautious not to chill speech about a candidate’s record in public office in the context of an election campaign.
[78] Counsel for the plaintiff made the submission that the effect of s. 137.1 should not be that that it is “open season” on political candidates. That is fair enough. But this case falls very far from “open season” on political candidates. This case involves speech about a candidate’s record during an election where he was running for re-election. It was not prurient or personal speech about the candidate’s private life. Rather, the defendant’s speech concerned the plaintiff’s record on development issues within the jurisdiction of the municipality.
[79] In my view, this case is exactly the type of situation that Justice Doherty presaged in paragraph 99 of the reasons of Pointes. Although I do not go so far as to find that the plaintiff brought the lawsuit to silence or punish the defendant, I find that the record on the motion is plain that any reasonable jury would find that the plaintiff has not suffered any significant harm. The public interest in the defendant’s speech about the plaintiff’s record as town councillor, during a campaign where the plaintiff was running for re-election greatly outweighs any minimal harm to the plaintiff.
Conclusion on Whether Claim Should Be Dismissed
[80] For these reasons, I am satisfied that the defendant’s expression at issue relates to matters of public interest. The plaintiff has not satisfied me that his proceeding has substantial merit, or that the defendant has no valid defence. Further, I find that the evidence of harm to the plaintiff from the defendant’s speech is exceedingly weak. I am satisfied that the public interest in allowing the proceeding to continue is greatly outweighed by the public interest in protecting the defendant’s expression at issue.
[81] The motion is granted. The plaintiff’s action is dismissed.
[82] In light of my conclusion on the motion to dismiss under s. 137.1 of the Courts of Justice Act, it is not necessary for me to consider the defendant’s alternative relief requested under rule 21.
Defendant’s Request for Damages
[83] The defendant seeks damages pursuant to s. 137.1(9) of the Courts of Justice Act. The plaintiff opposes the request for damages.
[84] Section 137.1(9) provides that a judge may award the moving party “such damages as the judge considers appropriate”, if, in dismissing the motion, the judge finds that “the responding party brought the proceeding in bad faith or for an improper purpose.”
[85] I note that s. 137.1(9) requires as a condition precedent that I make a factual finding that the plaintiff brought the action in bad faith or for an improper purpose. If that finding is made, the decision to award damages is a discretionary one, as is the amount of damages.
[86] I am not satisfied that the defendant has shown on a balance of probabilities that the plaintiff acted in bad faith or for an improper purpose in bringing the action. The defendant argues that the evidence of bad faith or improper purpose is two-fold: 1) the plaintiff’s admission that he believes the defendant made him lose the 2014 municipal election; and 2) the fact that the plaintiff only sued the defendant for defamation, and did not sue any of the newspapers or Facebook.
[87] I find that this evidence falls short of proving bad faith or an improper purpose. The fact that the plaintiff believes the defendant made him lose the election does not prove that the plaintiff brought the lawsuit for the purpose of punishing the defendant for making him lose the election. Nor does the fact that the plaintiff chose only to proceed against the defendant, and not against the newspapers or Facebook prove an improper purpose or bad faith. Nor am I satisfied that these two facts taken together are sufficient to show bad faith or an improper purpose.
[88] I am also not satisfied that that it is appropriate to make a damages award. There is no evidence that the defendant suffered any actual damages. The defendant argues that proof of damage is not required, because the purpose of a damages order under s. 137.1(9) is punitive.
[89] While I would not foreclose that possibility that there is a case where it would be appropriate to award damages under s. 137.1(9) in the absence of proof of actual damage, I find that this case is not an appropriate case for damages. The costs provisions of s. 137.1(7) also serve a punitive effect. Without ruling on costs of this motion at this stage (as I have not yet heard costs submissions), I am satisfied that to the extent there may be a need for a punitive sanction in this case, it can be adequately considered within the context of a costs award.
Costs
[90] I did not hear submissions regarding costs during the hearing of the motion. If the parties are unable to come to agreement regarding costs, I will receive submissions in writing on the following schedule. The defendant may file his costs outline and written submission within 30 days of this decision. The plaintiff may file his costs outline and submissions within 20 days after the defendant’s submission is filed. All costs submissions are limited to a costs outline, and five pages of submissions.
Post-script
[91] In light of the provisions in s. 137.2, which are clearly intended to ensure that this type of motion be heard on an expedited basis, I wish to comment briefly on the extended delay in this motion being heard. The motion was scheduled to be heard three times in the Newmarket courthouse in 2016. For reasons related to availability of judges, on none of those dates was the matter heard.
[92] Because of the difficulties in having the motion heard in Newmarket, counsel agreed to have the motion transferred to Toronto. In January 2017, the transfer order was formally made, and the motion was scheduled for August 9, 2017. The day before the hearing of the motion, the judge scheduled to preside contacted to counsel to advise that she would ask at the outset of the hearing if the pending Court of Appeal decisions in Pointes and its companion cases had an impact on the timing of when this motion should be heard. Counsel then agreed to adjourn the hearing of the motion pending the Court of Appeal decision in Pointes and the companion cases. The hearing was then adjourned twice more while those decisions were still under reserve at the Court of Appeal.
[93] These delays are unfortunate in light of the legislative policy that motions of this type be heard expeditiously. However, the delays in this case are not the fault of counsel for either of the parties. The decision to await the Court of Appeal’s rulings in Pointes and its companion cases was sensible, and has streamlined the legal analysis in this motion.