Court File and Parties
COURT FILE NO.: CV-18-26755 DATE: 20190513 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
John Miceli Plaintiff and Responding Party – and – Glenn Swinton Defendant and Moving Party
COUNSEL: Richard L. Pollock, for the Plaintiff and Responding Party Anthony Leardi, for the Defendant and Moving Party
HEARD: April 18, 2019
RULING ON MOTION
BONDY J.
A. BACKGROUND
1) Introduction
[1] The plaintiff John Miceli (“Mr. Miceli”) commenced an action against the defendant Glenn Swinton (“Mr. Swinton”) for libel for statements that were published and broadcasted on Mr. Swinton’s Facebook page. This was a motion brought by the defendant pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990 c. C.43 (“the Act”) to dismiss that action, on the basis it is a “SLAPP suit” (Strategic Lawsuit Against Public Participation) and that to allow it to continue would have the effect of limiting public debate.
[2] During the relevant timeframe, Mr. Miceli was the Chief Administrative Officer (“CAO”) for the Town of Amherstburg (“Amherstburg”). At some point during the same timeframe, Mr. Swinton had filed his nomination papers to be a candidate for mayor of Amherstburg in the then upcoming election.
[3] There was consensus Mr. Swinton published and/or broadcasted a number of negative remarks related to Mr. Miceli by way of Facebook posts. Some were related to the exercise of Mr. Miceli’s duty as the CAO for Amherstburg. Others were related to his suitability for that role due to allegations related to his employment for the City of Windsor as its Executive Director of Parks and Operations. Angela Berry (“Ms. Berry”) was a financial analyst who worked in that department during the timeframe that Mr. Miceli was its Executive Director. She was charged with, and convicted of, fraud related to her duties in that department. The then current mayor Aldo DiCarlo was also criticized in a number of these posts.
[4] There was consensus that at the time Mr. Swinton had about 280 friends on his Facebook account. There was consensus that all 280 people would have received the posts. Counsel for Mr. Swinton, however, argued that all 280 people may not have read them.
[5] On the other hand, counsel for the plaintiff took the position that the dissemination of the statements was potentially far broader. That is, because those who read the statements on Facebook would have shared them with friends either through their own Facebook accounts, or in personal conversation, or in some other way.
B. ANALYSIS
1) Introduction
[6] Section 137.1(3) of the Act provides:
On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
[7] Section 137.1(4) of the Act provides:
A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that, (a) there are grounds to believe that, (i) the proceeding has substantial merit, and (ii) the moving party has no valid defence in the proceeding; and (b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
2) Did the defendant make the Facebook posts in question?
[8] The defendant acknowledges having made the Facebook posts in question and accordingly, I find that he did.
3) Section 137.1(2) - Were the Facebook posts expressions that are related to a matter of public interest?
a) Introduction
[9] The analysis takes place in two stages. The first stage relates to s. 137.1(3) of the Act. Here the defendant must establish as a threshold requirement that the proceeding against them arises from an expression they have made that relates to a matter of public interest: see Veneruzzo v. Storey, 2017 ONSC 683, at para. 20, affirmed 2018 ONCA 688. If the moving party fails to do so then the motion must fail. If the moving party is successful at this stage then the analysis moves to the second stage under s. 137.1(4) of the Act, where the onus shifts to the plaintiff. The onus at each stage is on the balance of probabilities: see 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, at paras. 51 and 68, leave to appeal granted, [2018] S.C.C.A. No. 467.
b) Was there an expression?
[10] Section 137.1(2) of the Act defines “expression” as “any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.”
[11] The responding party maintains that there was an expression, and the moving party agrees. As said above, Mr. Swinton acknowledges that approximately 280 people would have seen the posts although he estimates less than that number actually read them.
[12] Accordingly, I find that there was an expression.
c) Section 137.1(3) - Were the expressions related to a matter of public interest?
[13] Prior to the motion being argued, plaintiff’s counsel conceded public interest within s. 137.1(3) of the Act.
[14] Based upon an examination of the subject matter of the communications, I agree the Facebook expressions are related to a matter of ostensible public interest, and accordingly I find that they were an expression related to a matter of public interest.
4) Section 137.1(4)(a)(i) - Does the plaintiff’s action have “substantial merit”
a) Introduction
[15] In order to succeed at this stage, the plaintiff must demonstrate on the balance of probabilities that there are reasonable grounds to believe to believe that the plaintiff’s claim has substantial merit and that the defendant (moving party) has no valid defence: see Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60, at para. 43, leave to appeal granted, [2018] S.C.C.A. No. 466.
[16] At paragraph 80 of 1704604 Ontario Ltd. v. Pointes Protection Association, the Court of Appeal explains the meaning of “substantial merit” as the term is used in this subsection:
The use of the word “substantial” to modify “merit” in s. 137.1(4)(a)(i) signals that the plaintiff must do more than simply show that its claim has some chance of success. Attempts to give meaning to the phrase “substantial merit” by referencing synonyms to the word “substantial” adds little to the interpretative exercise. A claim has “substantial merit” for the purposes of s. 137.1 if, upon examination, the claim is shown to be legally tenable and supported by evidence, which could lead a reasonable trier to conclude that the claim has a real chance of success.
[17] The object of this inquiry is “the subject-matter of the communication, determined objectively and reasonably” and not the motives of the speaker or writer: see Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC 6785, 410 D.L.R. (4th) 380, at para. 24, affirmed 2018 ONCA 854 [Able v. Express].
[18] In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28, the court outlines the elements a plaintiff must prove in a defamation action:
A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism.
[19] The statement of claim asserts that the words and images published by Mr. Swinton mean that Mr. Miceli is a corrupt public servant; lacks in integrity; is a dishonest person; displays a blatant disregard for the law; is in contempt of legal proceedings; stands charged for the criminal offence of fraud; and is a criminal.
[20] The following are examples of various Facebook posts, the evidence of Mr. Miceli, and my observations related to those posts.
b) Facebook posts stating or implying that Mr. Miceli “skipped out” on the fraud case
[21] There was consensus that the Windsor Star printed an article on June 29, 2018, after Mr. Miceli had not appeared in court that day for Ms. Berry’s fraud trial: Sarah Sacheli, “Judge in Angela Berry fraud trial threatens to issue arrest warrant for Amherstburg CAO”, Windsor Star (19 June 2018) online: https://windsorstar.com. It quotes the presiding judge, Thomas J., as stating “I find it unfortunate that Mr. Miceli would take the steps of leaving the jurisdiction for a vacation knowing that he was under subpoena.” The Windsor Star also reported that Thomas J. said “Miceli is a ‘material witness’ and if he does not attend court when the trial resumes July 16, the judge will issue a warrant for Miceli’s arrest.” There was also consensus that this newspaper article was the genesis of the relevant Facebook posts.
[22] On June 30, 2018, the defendant posted the following:
Amherstburg’s CAO John Miceli has DIRECTED and guided our Mayor and town council to sell out our police force and now shows his true colours as a Superior Court judge begins to hunt to find him after he skipped out on a fraud case that specifically implies his direct involvement along with his boy pal Treasurer. This blatant disregard for the law is unacceptable. Is this the team you really trust to handle your tax dollars??
[23] Although I did find the tenor of the comment unduly harsh, I agree with defendant’s counsel that Mr. Swinton may have at the time believed the post to be true given the Windsor Star article.
[24] It, however, turns out the Windsor Star article was incorrect.
[25] Mr. Miceli had been subpoenaed by the Crown as a witness by Ms. Berry. He had originally been told by defendant’s counsel to be available between June 4 and June 8, 2018. He was later told that he would be called on June 27, 2018. None of those dates materialized. Mr. Miceli next received a voicemail from defendant’s counsel advising him to attend court on June 29, 2018. That voicemail was received June 28, 2018, at 2:07 p.m. by Mr. Miceli’s assistant, and passed on to Mr. Miceli on the June 29, 2018, the same day that he was expected in court. It is, however, clear from what followed that Mr. Miceli had been previously scheduled to chair a meeting of the “Amherstburg Seniors Community Hub Site Meeting and Partnership Visioning” and that a number of prominent community agencies were in attendance. As a result, he had booked that time out of his calendar, and was unable to attend court that day.
[26] Importantly, after having been provided with that evidence from Mr. Miceli, Thomas J. found as follows: “I appreciate the fullness of the sworn affidavit and the attachments which leave no doubt in my mind that Mr. Miceli was not attempting to ignore the subpoena or the order of the court…”
[27] While I am aware that Thomas J.’s reasons were given after the posts had been made, I find the posts potentially problematic for the following reasons.
[28] The posts make no mention of either Mr. Miceli’s affidavit or Thomas J.’s findings with respect to the truth of that affidavit. It follows that the posts contained information which was ultimately judicially determined to not be truthful. The second is that once Thomas J.’s decision was released, and the issue judicially determined, it was incumbent upon Mr. Swinton, to at the very least, issue a retraction. Consistent with that observation, on July 13, 2018, the Windsor Star wrote an article quoting Thomas J.’s findings: Trevor Wilhelm, “Amhersburg CAO was on town business, not vacation, when he missed court”, Windsor Star (July 13, 2018) online: https://windsorstar.com. That clarification no doubt explains why Mr. Miceli had not sued the Windsor Star as was suggested by his lawyer during argument and by Mr. Swinton at paragraph 25 of his affidavit, sworn February 6, 2019.
[29] I am aware that Mr. Swinton takes the position that he had not read the Windsor Star at any time after June 29, 2018, and as a result had no way of knowing that the Windsor Star had clarified the truth.
[30] I make three observations with respect to that proposition. The first is that I find there is a very real chance a trier of fact would not believe that a mayoral candidate would not be reading the newspaper during an election. That defies common sense. The second is that even if he was not reading the newspaper, there is a very real chance that a trier of fact would find that the very serious and damaging nature of the statements made placed an obligation upon Mr. Swinton to take reasonable efforts to verify the truthfulness. This issue is more fully considered below. The third is that in August 2018 Mr. Swinton removed the posts after being contacted by Mr. Miceli’s counsel, though he did not issue a retraction or apology.
[31] Further, in cross-examination Mr. Swinton acknowledged that he was aware of a post on his Facebook page that there may have been a valid reason for Mr. Miceli’s absence from court that day. As is more fully considered below, it appears that Mr. Swinton may not have believed that he had any responsibility to investigate that post in order to verify the truth of the statements he had made about Mr. Miceli.
[32] For all of these reasons, I find that a reasonable trier could conclude Mr. Miceli’s claim has a real chance of success as it relates to this post.
c) Facebook posts stating or implying that Mr. Miceli was a co-defendant in Ms. Berry’s fraud trial
[33] Mr. Swinton made a number of posts that a trier of fact could find would lead a reasonable reader to conclude that Mr. Miceli was an accused in Ms. Berry’s fraud trial. In the interests of convenience, I have italicized the portions of each post which are of interest in this regard.
[34] On June 28, 2018, Mr. Swinton posted the following:
Amherstburg’s CAO John Miceli named in legal battle over FRAUD IN THE CITY OF WINDSOR for having finance departments make payments “fly under the radar” and have them vague and undetectable
[35] On June 30, 2018, Mr. Swinton also posted the following:
Amherstburg’s CAO John Miceli has DIRECTED and guided our Mayor and town council to sell out our police force and now shows his true colours as a Superior Court judge begins to hunt to find him after he skipped out on a fraud case that specifically implies his direct involvement along with his boy pal Treasurer. This blatant disregard for the law is unacceptable. Is this the team you really trust to handle your tax dollars ??
[36] In the comments section of that post, Mr. Swinton posted the following:
Can ANYONE tell me why exactly Aldo DiCarlo would pretend to know anything at all about a fraud case involving John Miceli and the City of Windsor? It seems to me, his number one concern should be the outcome of the trial, not the well-being of the accused that now has full access to Amherstburg’s finances.
[37] In summary, in the first post Mr. Swinton says that Mr. Miceli was “named in the battle over fraud”. In the second post, Mr. Swinton states that “there is a fraud case involving John Miceli” and he describes Mr. Miceli as “the accused” that “now has full access to Amherstburg’s finances” implying that tax payer dollars are not safe as a result. In the third post, Mr. Swinton states that Mr. Miceli is involved in a fraud case that specifically implies his direct involvement in that fraud, again suggesting that taxpayers are not safe.
[38] As said above, I find that a reasonable finder of fact could find that anyone reading those posts could incorrectly conclude that Mr. Miceli is an accused in a fraud trial, and as a result his access to Amherstburg’s finances in his capacity as CAO could put Amherstburg tax dollars in danger.
[39] Mr. Miceli deposed that he was a witness in that trial and not a co-defendant. The trial record supports that proposition, and accordingly I find it to be true. In other words, the trial record leaves no doubt that Mr. Miceli was never an accused in that fraud trial.
[40] Mr. Swinton put forth three separate propositions that I conclude a reasonable trier of fact may find irreconcilable and/or not accept.
[41] The first proposition is that he, both then and now, believed the statements he made in those posts are true. In other words, he expressed a belief that Mr. Miceli was involved in that fraud. Mr. Swinton deposed that Ms. Berry’s evidence at trial clearly supported Mr. Miceli’s involvement in the fraud. I find a reasonable trier of fact could find that proposition is without merit because Ms. Berry’s evidence was rejected by Thomas J. at trial, and because Thomas J. specifically exonerated Mr. Miceli.
[42] The second proposition was that Mr. Swinton’s language would not lead an objective reader to conclude that Mr. Miceli was an accused in Ms. Berry’s fraud trial. Defendant’s counsel proposed that words to the effect that Mr. Miceli was “named in the legal battle over fraud”, and Mr. Miceli being “the accused” and “a fraud case involving John Miceli”, and “a fraud case that specifically implies his direct involvement” were not intended to convey that Mr. Miceli was an accused in the fraud trial. In support of that proposition, defendant’s counsel further argued that the average person on the street would not consider “an accused” in a criminal matter to be a person charged with an offence.
[43] The third proposition was that in any event those posts were essentially correct. That is, because Mr. Miceli had been directly involved in Ms. Berry’s fraud trial “as a material witness”. Defendant’s counsel argued that the words chosen by Mr. Swinton had not intended to convey anything other than that.
[44] As said above, I conclude a trier of fact could reasonably disagree with all of those propositions. There are several reasons.
[45] The first reason is that the propositions are to some extent inconsistent with one another. On one hand, Mr. Swinton seeks to rely upon Ms. Berry’s testimony as the basis for a stated belief that Mr. Miceli was involved in the fraud. On the other hand, Mr. Swinton maintains that he had no intention of portraying Mr. Miceli as being involved in the fraud.
[46] The second reason is Mr. Swinton’s stated reliance upon Ms. Berry’s evidence at trial in support of his posts. In his affidavit, sworn November 2, 2018, Mr. Swinton states “I believed that witness. I still believe that witness,” in relationship to Ms. Berry’s evidence that Mr. Miceli was involved in the fraud.
[47] It seems to me, a trier of fact could reasonably find that continuing belief lacks objective reasonableness. That is because the oral reasons of Thomas J. state, “[t]he evidence of Ms. Berry is rejected… The evidence of Roesel and Miceli both called by the defence, do not support Ms. Berry’s evidence and only add to the landslide of evidence supporting the theory of the Crown.” Further, Thomas J. found that, “Miceli as executive director would not have been aware of the details of Ms. Berry’s assignments and might not have been aware of the existence of the contracted vendors or their sub-contractors.” He further finds that, “[i]t is significant that the payment of D & D invoices came from the two accounts of the two recently expired executives (Miceli and Roselle) who would not be present to detect payments.”
[48] In other words, notwithstanding that there is no doubt that as of the time the motion was heard Mr. Swinton was aware of Thomas J.’s decision, Mr. Swinton maintains his belief that Mr. Miceli was part of the fraud on the City of Windsor notwithstanding Thomas J.’s findings to the contrary.
[49] The third reason is that some of those propositions may reasonably be found to be lacking in common sense. If, for example, Mr. Swinton had intended to convey that Mr. Miceli was involved as a “material witness” he only had to use those words. As another example, anyone who owns a television set, or has ever been to a movie theatre, knows that persons charged with offences are referred to as “the accused”.
[50] The fourth reason is that Mr. Swinton’s insistence that he did not intend to portray Mr. Miceli as having been involved in the fraud on the City of Windsor lacks harmony with the plain meaning of the words he chose to use. For example, in the second post referenced above, Mr. Swinton makes a direct link between that fraud trial and Mr. Miceli having “full access to Amherstburg’s finances”. The implication being that as a result of Mr. Miceli’s involvement in the fraud perpetrated on the city of Windsor, a dishonest person has access to Amherstburg’s tax money.
[51] The last reason is that it seems to me a reasonable trier of fact may well conclude that even if Mr. Swinton at some point honestly believed that Mr. Miceli was involved in Ms. Berry’s fraud, that erroneous belief would have been corrected when Thomas J. released his reasons. It also seems to me that a reasonable trier of fact would find that Mr. Swinton had an obligation to exercise appropriate diligence in verifying the facts posted and to retract his comments once there was a judicial finding inconsistent with those facts. Mr. Swinton was clearly aware of Thomas J.’s reasons for judgment for some time prior to this motion being heard. I say that because those reasons were included in the materials he filed in support of this motion.
[52] For all of these reasons, I conclude that Mr. Miceli’s claim in this regard to these posts has a real chance of success.
d) The Facebook posts regarding the Amherstburg Police Department
[53] As said above, on June 30, 2018, Mr. Swinton posted the following:
Amherstburg’s CAO John Miceli has DIRECTED and guided our Mayor and town council to sell out our police force and now shows his true colours as a Superior Court judge begins to hunt to find him after he skipped out on a fraud case that specifically implies is direct involvement along with his boy Powell Treasurer. This blatant disregard for the law is unacceptable. Is this the team you really trust to handle your tax dollars??
[54] Later that same day, Mr. Swinton also posted the following:
did CAO John Miceli hand the Windsor police our Amherstburg forces in efforts to soften the repercussions of him implied involvement in the City of Windsor FRAUD hearing? What do you think?
[55] The second message was posted in the form of a survey to which 30 people responded.
[56] Counsel for Mr. Swinton maintains that there is nothing wrong with the statements because Mr. Miceli authored the report upon which counsel ultimately made its decision, and because of statements made by Thomas J. on June 28 and June 29, 2018 during Ms. Berry’s trial.
[57] As to Mr. Miceli having authored the report, that was his job. As was argued by Mr. Miceli’s counsel, the decision regarding the police force was ultimately that of the municipal council. The decision was made in the usual fashion by majority vote of council There was no evidence to suggest that there was incorrect information or other impropriety in the report. As to the statements attributed to Thomas J., I reiterate that he later came to the opposite conclusion based on a more complete evidentiary record.
[58] Accordingly, I find that a reasonable trier of fact may find that neither of these explanations has any merit.
[59] Further, the second post builds upon Mr. Swinton’s previous posts portraying Mr. Miceli as an accused in the Berry trial. It suggest that he and the Windsor Police Service have concocted an arrangement to shield Mr. Miceli from the consequences of his alleged involvement in the City of Windsor fraud, in exchange for Windsor Police Service receiving the Amherstburg policing contract. As was observed by plaintiff’s counsel, through that post Mr. Swinton has accused Mr. Miceli of a second criminal offence. The offence of municipal corruption contrary to s. 123(1) of the Criminal Code, R.S.C., 1985, c. C-46. Again, that is a very serious obligation for which there was no supporting evidence.
[60] Finally, 77 percent of the 30 people who responded to the survey agreed that Mr. Miceli had handed the Amherstburg forces to the Windsor Police Service in efforts to soften the repercussions of his involvement in the City of Windsor fraud hearing in efforts to soften the repercussions of his implied involvement in the City of Windsor fraud hearing. It does not seem to me to be a stretch to conclude that a reasonable trier of fact may find that this very negative result directly reflects the impact that Mr. Swinton’s prior Facebook posts have had on Mr. Miceli’s reputation in Amherstburg. In other words, Mr. Swinton’s own survey may be an effective tool for plaintiff’s counsel to make the necessary link between Mr. Swinton’s conduct and the damages Mr. Miceli claims to have incurred. This issue is further considered below in the context of the balancing exercise.
e) The Facebook posts alleging Mr. Miceli exercises undue influence over then Mayor Aldo DiCarlo
[61] There were two posts suggesting that Mr. Miceli was exercising undue influence over then mayor Aldo DiCarlo.
[62] The first was a representation of a Time Magazine cover. The title “puppet of the year” appears over photographs of Mr. Miceli and Mayor DiCarlo. This was described by counsel as the “puppeteer post”. This post was made by Mr. Swinton.
[63] Counsel for Mr. Swinton argues that “being described as a puppet master does not constitute defamation”. While there are cases where that may be true, there are also cases where that is not true. It seems to me that is a question of context.
[64] In this case, when that post is viewed in the context of the posts preceding it, I conclude that a reasonable trier of fact may find the implication is that Mr. Miceli has improper access to taxpayer money as a result of inappropriate control over the Mayor. That observation finds support in the image of Mr. Miceli as a “robber baron” also posted by Mr. Swinton.
[65] The second was a post by a third party to Mr. Swinton’s Facebook page which describes the Mayor as Mr. Miceli’s “minion”.
[66] Mr. Swinton maintains that this is not his post and accordingly he should not be held responsible for it. The law is well established that “[i]f one person writes a libel, another repeats it, and a third approves what is written, they all have made the defamatory libel.”: see Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 176, citing Lawson v. Burns, [1976] 6 W.W.R. 362 (B.C.S.C.), at pp. 368-69; and Gatley on Libel and Slander (8th ed. 1981), at p. 600.
[67] Again, I conclude that a reasonable trier of fact may find that in order to avoid potential liability for that statement it was incumbent upon Mr. Swinton to have either posted a disagreement, or in the alternative removed the comment from his Facebook page. He elected to do neither.
[68] Again, I find that Mr. Miceli’s claim as it relates to these posts has a real chance of success.
f) Conclusion
[69] For all of these reasons I find that Mr. Miceli has established that a reasonable trier of fact could find that his action has a real chance of success.
5) Section 137.1(4)(a)(ii) - Does the defendant have “no valid defence” in the proceeding?
a) Introduction
[70] “The onus rests on the plaintiff to convince the motion judge that, looking at the motion record through the reasonableness lens, a trier could conclude that none of the defences advanced would succeed”: see Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166, 144 O.R. (3d) 291, at para. 14, citing Pointes Protection Association, at para. 84.
[71] It follows that s. 137.1(4)(a)(ii) of the Act places a significantly less onerous burden on the plaintiff than demonstrating that the defendant has “no valid defence whatsoever”. Rather, it is enough that the plaintiff demonstrate that the case “could go either way”, meaning that the trier of fact could either accept or reject a particular defence: see Bondfield, at para. 15.
[72] Defendant’s counsel did not devote much time in argument to the issue of “no valid defence”. The defendant’s factum however relies upon a number of potential defences, and so I will review each of them in turn.
b) The comments were true and/or based on true facts
[73] As said above, there was a judicial determination that several of the facts alleged were not true and accordingly, I conclude that these defences will not likely succeed, or at the very least “could go either way”.
c) The defence of fair comment
[74] In Grant v. Torstar Corp., at para. 31; and Able v. Express (ONSC), at para. 76, the court states:
[A]defendant claiming fair comment must satisfy the following test: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts? and (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.
[75] Also, in Grant v. Torstar Corp., the court noted at para. 31 that “statements of opinion, a category which includes any ‘deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof’ may attract the defence of fair comment.” [Citations omitted.].
[76] The ultimate success of this defence depends on findings of fact made by the trier. For example, if the statements made are found to be factual assertions the defence cannot succeed. On the other hand, if they are found to be statements of opinion the defence may succeed: see Bondfield, at para. 17.
[77] In this case, I find that the trier of fact may well conclude that an individual reading of some of those posts could conclude that they are factual assertions rather than statements of opinion given the choice of words used by Mr. Swinton in the posts. That conclusion finds support at paragraph 14 of Mr. Swinton’s own affidavit, sworn February 6, 2019. There he states that a question posted June 30, 2018, “asserts that the plaintiff has involvement in a City of Windsor fraud trial” and “that is a factual statement”.
[78] Accordingly, I find this defence meets the test of “could go either way”.
d) Comments on a matter of public interest
[79] While the matter may be of public interest, I refer to my comments above to the effect that the trier of fact may well conclude that much of the language chosen by the defendant would lead a reader to believe that Mr. Swinton was making statements of fact, and that the defendant himself refers to at least one of the posts as a “factual statement”. Accordingly, I find this defence satisfies the “could go either way” threshold.
e) Recognizable as comment
[80] I refer to my comments immediately above.
f) The responsible communication defence
[81] The test for responsible communication has two components. The first component is that it must be in relation to a matter of public interest. The second component is that the defendant must show that the publication was responsible. That requires diligence in attempting to verify the allegations: see Bondfield at para. 18; citing Grant v. Torstar Corp., at para. 98, and Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, 143 O.R. (3d) 54, at para. 28.
[82] I do find the possibility that a public figure with access to public funds is a corrupt individual to be a matter of significant interest to the public.
[83] That said, it seems to me the trier of fact could well find that the defendant did not exercise the necessary diligence in attempting to verify the allegations.
[84] As an example, I reiterate that during cross-examination on his affidavit it was suggested to Mr. Swinton that there was an innocent explanation offered for Mr. Miceli’s non-attendance at court on June 29, 2018, posted by one of Mr. Swinton’s readers on his Facebook. Mr. Swinton answered that, “it wasn’t verifiable” referring to the post as to a possible innocent explanation. He also said, “[i]t was just someone putting a post on there.” He further stated, “it’s up to the reader to go look for the facts. It’s my opinion.” Given Mr. Swinton’s words, I find that a reasonable trier of fact could conclude that Mr. Swinton was erroneously of the view that it was up to the reader and not him to verify the accuracy of his posts.
[85] Another example involves the posts where Mr. Miceli is portrayed as a co-defendant in Ms. Berry’s fraud trial. I find on the evidentiary record before me the trier of fact could conclude that Mr. Swinton was likely aware this proposition was not true at the time the post was made. Even if he was not aware, the trier of fact could conclude that it became clear when Thomas J. gave his decision and Mr. Miceli became aware of it. Further, even if the trier of fact concluded that Mr. Swinton was unaware of Thomas J.’s decision, the trier of fact could conclude that his ignorance of that information was attributable to a failure to make appropriate attempts to verify the truth in the circumstances.
[86] Similarly, although it seems quite possible the trier of fact could conclude that Mr. Swinton initially believed that in his words Mr. Miceli had “skipped out” on the fraud hearing, again Thomas J.’s decision made it abundantly clear that that was not the case. There was no evidence that Mr. Swinton made any attempt to verify the truth of the statements or retract either statement.
[87] Finally, the record before me leaves no doubt that as of the time this motion was heard Mr. Swinton was well aware of Thomas J.’s decision. I say that because a copy of that decision was included in Mr. Swinton’s materials.
[88] Again, I find this defence satisfies the “could go either way” threshold.
g) The defendant was not motivated by malice
[89] I begin with the observation that this section was never intended to shelter hateful or malicious attempts to inflict harm under the guise of free debate of matters of public interest: Able v. Express, at para. 84. I make the following two comments with respect to the absence of malice.
[90] The first is that the absence of malice is more a part of the public interest analysis at s. 137.1(4)(b) of the Act, than as a stand-alone defence.
[91] The second is that given the tenor of the comments, and the defendant’s failure to retract comments that were judicially found to be untrue, I find the issue of whether or not the defendant was motivated by malice “could go either way”. That conclusion also finds support in Mr. Swinton’s comments that if elected mayor he would review Mr. Miceli’s department as a consequence of Mr. Miceli having disagreed with his election platform.
h) Justification
[92] In addition to the defences raised by the defendant, plaintiff’s counsel also addressed the defence of justification. In Platnick v. Bent, the Court of Appeal cited the following concise description on the defence in Peter A. Downard, The Law of Libel in Canada, 4th ed. (Markham: LexisNexis, 2018), at paras. 6.2-6.3:
The burden on the defendant is to prove the substantial truth of the “sting”, or main thrust, of the defamatory words. The sting of the words includes the expressed defamatory meaning of the words and any implication that is found to have been a correct defamatory meaning of them. If the sting of the words is justified on the evidence, minor inaccuracies will not prevent the defendant from establishing a defence of justification. The defendant is not required to justify every word, or statements that do not add to the sting or introduce any new actionable matter. [Footnotes omitted.]
[93] For the reasons above, on the record before me I do not find it likely that the defendant will be able to prove the substantial truth of most or all of the posts in question.
[94] Again, I find the plaintiff has satisfied the onus upon him to demonstrate this defence could go either way.
i) The defendant’s assertion that Mr. Miceli should have posted contradictions on Mr. Swinton’s Facebook page
[95] Mr. Swinton’s counsel proposed that Mr. Miceli “could have easily posted a contradiction of anything I said”, and implied that Mr. Miceli had an obligation to do so. I reject that proposition for two reasons.
[96] The first is that to have done so would have breached Mr. Miceli’s obligations to his employer pursuant to Amherstburg’s Code of Conduct Policy for Staff/Employees.
[97] The second is that given the tenor of Mr. Swinton’s posts, I find that the likely result would only have been to escalate an already bad situation.
j) Conclusion
[98] For all of these reasons, I find that the plaintiff has demonstrated that the trier of fact could conclude that all of the defences “could go either way” and as a result has satisfied the onus upon him to demonstrate the defendant has no valid defence under s. 137.1(4)(a)(ii) of the Act.
6) Is harm likely to be or have been suffered by the responding party as a result of the moving party’s expression sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression?
a) Introduction
[99] Section 137.1(4)(b) of the Act involves a public interest balancing of the harm to the plaintiff as against the public interest in protecting the expression.
[100] The anti-SLAPP advisory panel envisaged this legislation would serve to dismiss a proceeding only if the plaintiff had a “technically valid cause of action” and had suffered “insignificant harm”. That language describes the kind of case that should be removed from the process under s. 137.1(4)(b) of the Act: see Pointes Protection Association, at para. 98.
[101] A non-exhaustive list of factors potentially relevant to this fact situation includes the following:
- Does the seriousness of the harm outweigh the public interest in protecting the expression?
- Is the lawsuit a “strategic lawsuit against public participation “otherwise known as a SLAPP lawsuit? If so, the motion may succeed notwithstanding the plaintiff may succeed at trial on the merits. That is the case where a remedy granted to the plaintiff would make an unwarranted incursion into the domain of protected expression.
- Is the defendant’s expression “sufficiently serious” that the public interest engaged in allowing the plaintiff to proceed with the claim outweighs the public interest in protecting the defendant’s freedom of expression?
- Is the action intended to preserve the plaintiff’s good reputation or personal privacy?
- Has the plaintiff provided the basis on which I, as the motion judge, can make some assessment of the harm done, or likely to be done, by the impugned expression such as quantification of monetary damage? A bald assertion, or unexplained damage claims do not suffice.
- Has the plaintiff provided the material to establish a causal link between the expression and the damages claimed? For example, are there other sources apart from the expression that could have caused the damages?
- What is the public interest in protecting the expression? Where the defendant claims a public interest, beyond the generally applicable public interest the evidentiary burden lies with the defendant to establish the facts to support the claimed added importance to the public interest
- What is the quality of the expression or the motivation of the speaker? Unlike the “public interest” inquiry in s. 137.1(3) of the Act, both play an important role in measuring the extent to which there is a public interest in protecting that expression…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 same message been delivered without the lies, vitriol, and obscenities.
- Is there evidence that “libel chill” will be generated by the plaintiff’s claim that would tend to diminish the willingness of individuals to commence a proceeding where appropriate?
See: Pointes Protection Association at paras. 85-95.
b) Is Mr. Miceli a public figure?
[102] Mr. Swinton maintains that Mr. Miceli is a “public figure”. Plaintiff’s counsel agreed. Given Mr. Miceli’s job description and duties, I also agree.
c) Application of the principles to the facts of this case
i. Mr. Miceli’s litigation history
[103] I begin with the observation that there was no suggestion from anyone that Mr. Miceli has ever used litigation to silence someone in the past. In other words, this action was not part of a larger pattern of Mr. Miceli attempting to silence people.
ii. The plaintiff’s claim
[104] I find the negative impact in preventing Mr. Miceli from having his case judicially determined would potentially be significant.
[105] Mr. Miceli’s claim seeks $70,000 for defamation and $20,000 for aggravated, punitive and exemplary damages, as well as an injunction prohibiting Mr. Swinton from publishing or broadcasting statements which the plaintiff maintains suggest he is mendacious, corrupt, incompetent, or is responsible for criminal acts.
[106] There are three aspects of that claim which I find important in the balancing analysis.
[107] The first aspect of the claim that I find important relates to quantification of damages. I am aware that the plaintiff has not presented a fully-developed damages brief. I, however, do not find that necessary in this case. I say that for three reasons.
[108] The first reason is that it is sufficient if at this stage the claim is “supported by sufficient evidence to draw a causal connection between the challenged expression and damages that are more than nominal”: see Pointes Protection Association, at para. 90. I find Mr. Miceli has satisfied that requirement.
[109] The second reason is that general damages are presumed from the publication of the libel: see Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 164.
[110] The third reason relates to the proposition in the statement of claim that the words and images published by Mr. Swinton mean that Mr. Miceli is a corrupt public servant; lacks in integrity; is a dishonest person; displays a blatant disregard for the law; is in contempt of legal proceedings; stands charged for the criminal offence of fraud; and is a criminal. Given the language chosen by Mr. Swinton in those posts, I find there is a very real possibility Mr. Miceli may be successful in proving that assertion at trial. Those are very damaging propositions. Those propositions find little support in the evidence before me. Further, Mr. Swinton’s counsel candidly acknowledged that Mr. Miceli is a prominent member of Amherstburg society.
[111] Further, I reiterate that Mr. Miceli is a municipal CAO. That is no doubt a very limited skill set. If Mr. Miceli lost that job with Amherstburg, he would have a great deal of difficulty finding a similar job in the same field. I make that conclusion because I have no difficulty finding that any municipality to which he might apply for employment would no doubt become aware of these allegations in the process of conducting the requisite due diligence.
[112] Accordingly, I have no difficulty concluding that a reasonable trier of fact could conclude that Mr. Miceli has a very real and important interest in demonstrating the allegations are untrue. Further, I also find that if successful at trial, Mr. Miceli may well be entitled to damages that are more than nominal.
[113] The second aspect of the claim that I find important relates to the quantum of damages. Counsel for Mr. Swinton argues on the basis of case law provided by plaintiff’s counsel that even if successful at court, damages would likely be in the range of $25,000. Defendant’s counsel argued that accordingly, this matter ought to have been brought in Small Claims Court. I do not necessarily agree that if successful Mr. Miceli’s damages will be in the range of $25,000, but I do acknowledge that possibility. Notwithstanding that possibility, I disagree that the appropriate forum was Small Claims Court. I say that because as was observed by plaintiff’s counsel, Small Claims Court does not have the necessary jurisdiction to grant injunctive relief. For the reasons which follow, I conclude that relief is at the heart of what Mr. Miceli seeks in these proceedings.
[114] The third aspect of the claim that I find important relates to the damage to Mr. Miceli’s reputation and privacy.
[115] Defence counsel took the position that only monetary damages are to be considered in this balancing exercise. I disagree. Harm to the plaintiff can refer to non-monetary harm such as reputation and privacy as well: see Pointes Protection Association, at para. 88.
[116] In support of the claim for injunctive relief, Mr. Miceli deposes that his reputation was negatively impacted by the Facebook posts throughout the region and particularly in Amherstburg. Similarly, co-workers and peers of his family members have made negative comments to Mr. Miceli, as well as his spouse and children, which he believes are directly related to the Facebook posts.
[117] Given the size of Amherstburg, I find it appropriate to take judicial notice that the Amherstburg is what most would consider to be a “small town”. Given the importance of Mr. Miceli’s job in that small town, I find it likely that the posts came to the attention of a meaningful number of the residence of Amherstburg. Many of those people would have a direct interest in Mr. Miceli’s character as resident ratepayers, because of Mr. Miceli involvement with municipal finances and accordingly ratepayers’ tax dollars.
[118] Consistent with that conclusion, Mr. Miceli was asked during cross-examination on his affidavit about the impact of Mr. Swinton’s Facebook on his life. Mr. Miceli testified that there is a Tim Hortons located in close proximity to the Amherstburg Town Hall where he works. He estimated that as of the date of that cross-examination somewhere between five and ten people had approached him and harassed him at that Tim Hortons primarily in relation to Mr. Swinton’s postings.
[119] That proposition finds support in the survey posted by Mr. Swinton. I reiterate that 77 percent of the 30 people who responded to the survey agreed that Mr. Miceli had handed the Amherstburg forces to the Windsor Police Service in efforts to soften the repercussions of his involvement in the City of Windsor fraud hearing in efforts to soften the repercussions of his implied involvement in the City of Windsor fraud hearing. As said above, if true Mr. Miceli would have committed a criminal offence. That very negative survey result supports the conclusion that Mr. Swinton’s prior Facebook posts have had a very real, and very negative impact upon Mr. Miceli’s reputation in Amherstburg. In other words, Mr. Swinton’s own survey tends to support Mr. Miceli’s claim that his reputation has been damaged by the Facebook posts.
[120] The fourth important aspect of the claim is that as said directly above, I conclude that at trial a reasonable trier of fact may find that the plaintiff has demonstrated a direct link between the defendant’s posts and the damages claimed.
iii. The nature and purpose of the posts
[121] I conclude that the public interest in protecting the expressions at issue are at the lower end of the scale.
[122] I begin with the observation that they do not have the character of objective news reporting. Rather, I find the language chosen by Mr. Swinton both personal and vindictive. As said above, many of the posts contradict judicial findings of fact.
[123] Further, while I find it quite possible that Mr. Swinton initially believed that in his words Mr. Miceli had “skipped out” on the fraud hearing, Thomas J.’s decision and later reporting made it abundantly clear that it was not the case.
[124] On the evidentiary record before me, I conclude that a reasonable trier of fact could find that Mr. Swinton does not have a responsible communication defence and made false statements about Mr. Miceli that he either knew were untrue, or with the exercise of diligence in attempting to verify the allegations would have known were untrue: see Grant v. Torstar Corp., at para. 98; and Corus Entertainment Inc., at para. 28.
[125] On August 9, 2018, Mr. Miceli’s lawyer sent Mr. Swinton a letter asking that he remove the posts from his Facebook page and write an apology and retraction on Facebook. Although the posts were removed, on August 13, 2018 Mr. Swinton wrote back and said “there is no public apology coming from this office”.
[126] Further, I reiterate Mr. Swinton did not see fit to print a retraction once it was absolutely clear that these accusations were not true at any time prior to this motion being heard. As said above, Thomas J.’s reasons were included in Mr. Swinton’s materials. It necessarily follows that Mr. Swinton has been aware of those reasons for some time.
[127] Finally, Mr.Swinton made those statements at a point in time where he was preparing to enter a mayoral race, and the posts remained on his Facebook page after he had entered that race. His status as a mayoral candidate no doubt had the effect of both broadened the number of people who would find his statements of interest, and also added legitimacy to the statements made.
[128] I also conclude that the trier of fact could find two potential motives for Mr. Swinton having done so.
[129] The first is that the trier of fact may conclude that Mr. Swinton made those false statements in an effort to enhance his mayoral aspirations. In other words, Mr. Swinton was using false statements in an attempt to gain a position of trust within Amherstburg.
[130] The second is that Mr. Swinton was seeking revenge as against Mr. Miceli because he perceived that Mr. Miceli had disagreed with Mr. Swinton’s election platform. As said above, in a letter to Mr. Miceli’s counsel dated August 13, 2018, Mr. Swinton states, “it is grossly apparent that CAO John Miceli has taken offence to my political platform which makes no secret to the fact that if elected as the next Mayor of the Town of Amherstburg, his department will be subject to a thorough examination.”
[131] While I make no finding of malice or improper motivation, I would re-iterate the issue of whether the defendant was motivated by malice “could go either way”.
iv. Is this the type of situation which the anti-SLAPP legislation was intended to address?
[132] For all of these reasons, I also conclude that this is not a situation to which the anti-SLAPP legislation was intended to address. To be clear, I am aware that the analysis does not end there because “nothing in the language of s. 137.1 limits the provision to claims, normally defamation actions, that fit squarely within the traditional notion of a SLAPP”: Pointes Protection Association, at para. 103. That conclusion is but one aspect of the entire factual matrix I have considered.
v. Conclusions as to potential damage to Mr. Miceli and the public interest
[133] Finally, I conclude on the evidentiary record before me, and for the purposes of this motion, that the potential damage to Mr. Miceli far outweighs the public interest in protecting this type of expression. I conclude that the harm likely to be or which has been suffered by the plaintiff as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
7) Disposition
[134] The test under section 137.1(4) of the Act requires that I find that all three questions arising from that section be answered in the affirmative. For the reasons above, I find that plaintiff has done so on the evidentiary record before me.
[135] I would, however, also observe that the evidentiary record before me did not have all of the beneficial features of a trial, nor did I have access to the powers available in a summary judgment motion brought pursuant to r. 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. It is possible that on a more complete record I would have come to different conclusions. Accordingly, my findings of fact are not intended to be “final” in the sense that those findings are intended to create an estoppel: see Stiftung v. Rayner & Keeler Ltd., (No. 2), [1967] 1 A.C. 853 at p. 935; Chandrasena; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 25; and R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 52-56.
C. ORDER
[136] For all of the above reasons, order to go as follows:
1) Decision
[137] The defendant’s motion is dismissed.
2) Costs
[138] The plaintiff is presumptively not entitled to costs on the motion unless such an award in the appropriate in the circumstances: s. 137.1(8), Courts of Justice Act. However, I find such an award may be appropriate here. In the event that the parties are unable to agree on costs within seven (7) days, then costs submissions shall be in writing on the following basis:
- The plaintiff’s counsel shall serve costs submissions and a “Cost Outline” as provided for in Rule 57.01(6) (using Form 57(b)) upon the defendant’s counsel within fourteen (14) days. Such written argument shall be no more than five (5) pages in length. In the event the foregoing is not complied with within that time period, the plaintiff shall be deemed to have waived his right to do so.
- The defendant’s counsel shall have a further ten (10) days to provide a response to counsel for the plaintiff. Such response is to be no more than three (3) pages in length. In the event the foregoing is not complied with within that time period, the defendant shall be deemed to have waived his right to do so.
- Counsel for the plaintiff shall have five (5) further days to provide a reply to counsel for the defendant. Such reply is to be no more than one (1) page in length. In the event the same is not complied with within that time period, the plaintiff shall be deemed to have waived his right to do so.
- Once all of those steps have been completed, counsel for the plaintiff shall provide all the submissions to the court through the Trial Co-Ordinator.
- The costs submissions shall be double-spaced and use a “Times New Roman” font no smaller than 12 point. All references to the length of submissions exclude Bills of Costs and Costs Outlines and any Offers to Settle.
“original signed and released by Bondy J. ”
Christopher M. Bondy Justice
Released: May 13, 2019