NEWMARKET COURT FILE NO.: CV-17-130384-SR

DATE: 20190812

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Bradford Travel and Cruises Ltd.

Plaintiff

– and –

Cassandra Viveiros and Mary Marques

Defendants

Alex Van Kralingen, for the Plaintiff

Weston Powell, for the Defendant

Heard: June 7, 2019

REASONS FOR DECISION

DE SA J.:

Overview

[1] This is a motion brought by the Defendant, Cassandra Viveiros, for an Order dismissing the Plaintiff’s action for defamation pursuant to section 137.1(1) and (3) of the Courts of Justice Act, RSO 1990, c C.43 (“CJA”).

[2] The Defendant takes the position that the public interest in protecting expression clearly outweighs any potential merit to the Plaintiff’s claim. The Defendant also argues that the Plaintiff has not suffered harm that would warrant curtailing the Defendant’s expression. The Plaintiff argues that section 137.1 of the CJA requires that action be dismissed.

[3] Having reviewed the record before me, I am satisfied that the proceeding has sufficient merit, and that the expression’s likely or actual harm is serious enough that public interest lies with allowing the matter to proceed to trial. Accordingly, the motion is dismissed.

[4] The reasons for my decision are outlined below.

Summary of Facts

Background

[5] The Plaintiff, Bradford Travel and Cruises Ltd. (“Bradford Travel”), is a small travel agency, which operates an office out of the Walmart in Bradford, Ontario. The Walmart opens early in the morning; the Bradford Travel location opens at 10:30 a.m.

[6] Bradford Travel provides travel agency services to its clients, including but not limited to luxury vacations, large family/group vacations and large tour requirements that do not easily lend themselves to booking on the internet. As such, Bradford Travel’s business is usually connected to its personal relationships with its customers.

[7] Melissa Marques was a long-time employee of Bradford Travel, based out of the Bradford location.

[8] In 2016, Ms. Marques announced that she would be resigning from her position at Bradford Travel in December 2016 to start her own restaurant business with her partner. In November 2016, Ms. Marques asked to extend her last day to the end of January 2017. Bradford Travel agreed, and an overlap period with new staff was organized.

[9] In January 2017, Melissa Marques asked for her resignation date to be extended to the end of February 2017. Bradford Travel’s management again reluctantly agreed.

[10] On February 21, 2017, Ms. Brown, the owner of Bradford Travel, received a note from Melissa Marques, stating that “I gave you my notice for the end of February but I will need to stay until 2nd or 3rd week of March.”

[11] Bradford Travel did not ultimately agree to this additional period of notice. Accordingly, February 28, 2017 was Melissa Marques’ last day at Bradford Travel.

The Confrontation at Bradford Travel

[12] On February 28, 2017, Melissa Marques showed up at Bradford Travel for her last day. Upon showing up to work, Melissa Marques complained about the fact that she was not given a further extension of her resignation date and claimed that she was being treated unfairly. Ms. Brown stayed firm that it would be Melissa Marques’ last day. This initial conversation was not in any way heated.

[13] Ms. Marques stormed off into the Walmart for some time and brought back a box to collect her belongings. When she returned to the store, Ms. Marques started to audio record her interactions with Ms. Brown. Shortly after starting the recording, Ms. Marques threw something and Ms. Brown told her to leave the store.

[14] The entire audio recording involving Ms. Brown is less than four minutes long. The interactions between the two women is less than that. The recording evidently captures Ms. Brown’s frustrations with Melissa Marques in a moment where she felt Ms. Marques was being unreasonable.

The Postings

[15] On March 1, 2017, the Defendant, Ms. Viveiros, made a series of postings and replies to other postings on the “Welcome to Bradford, Ontario” Facebook group (the “Facebook Group”) which, on their face, purport to communicate alleged facts and opinions which would objectively lessen the reputation of Bradford Travel to the community it serves. In essence, the postings provide:

1. That Ms. Viveiros personally witnessed some form of dispute between Melissa Marques and Ms. Brown, which constituted “workplace harassment”;

2. That Bradford Travel does not care about its customers, and in fact only sees them as “dollar signs” – Ms. Viveiros clarified on discovery that she meant a company which doesn’t “treat people with dignity when you go inside”;

3. That Melissa Marques got treated like no employee ever should be treated and was “kicked to the curb”.

4. That given the way Bradford Travel treats its employees and customers, people in Bradford should take their travel business to a competing brokerage, Verona Travel.

The Plaintiff’s Position

[16] The Plaintiff takes the position that the Facebook posts at issue involve allegations of conduct that is illegal and immoral and would lessen the reputation of any business. Bradford Travel launched this action with evidence that there have been both tangible losses, as well as loss of its reputation in the local community that its Bradford location serves.

[17] While Ms. Viveiros claims that she was present at the Walmart on February 28, 2017 and saw the interaction between Ms. Marquez and Ms. Brown, at her discovery, Ms. Viveiros had no independent recollection of the event. When pressed, she did not have the timing right given when she said she went to the Bradford Walmart location.

[18] The Plaintiff takes the position that there are a number of issues which a trier of fact would need to assess, all of which go to the quality of the defences raised:

1. Whether Ms. Viveiros was actually present at the Walmart in question on February 28, 2017 and if so, what she actually saw;

2. Whether the interaction between the principal of Bradford and Melissa Marques, constituted a breach of Bradford Travel’s obligations pursuant to various employment law statutes and associated common law obligations to employees;

3. What were Ms. Viveiros’ motives in making the allegations in the Facebook posts, given that both her evidence on discovery and the posts themselves showed that:

i. She was laudatory of Melissa Marques;

ii. Ms. Viveiros may have had historical animus towards Bradford Travel;

iii. Ms. Viveiros refused to produce the emails between her and Melissa Marques – after the litigation commenced – which attached the recording;

iv. The initial posts suggests that Ms. Viveiros knew about the recording at the outset and had communicated with Melissa Marques or her mother prior to the postings;

v. Ms. Viveiros was expressly encouraging existing and potential customers of Bradford Travel not to frequent the business.

[19] Given the limited judicial pre-screening afforded via section 137.1 of the CJA, Bradford Travel argues that it should have the right to try its claims.

Analysis

ANTI-SLAPP PROVISIONS

General

[20] Section 137.1(1) of the CJA was created to “encourage individuals to express themselves on matters of public interest” and to “discourage the use of litigation by means of unduly limiting expression on matters of public interest” – or “Strategic Litigation Attacking Public Participation [SLAPP Suits].

[21] The statute 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”.

[22] That statute also provides that a judge shall, on motion, dismiss any libel proceeding where the judge is satisfied “arises from an expression […] that relates to a matter of public interest”.

[23] A moving party relying on CJA section 137.1 must establish that a “proceeding arises from an expression made by the moving party”, one which “relates to a matter of public interest”.

[24] CJA section 137.1(4) conversely, establishes that respondents to a section 137.1 motion can defeat such a motion if they convince the motion judge that their proceeding has merit, that the moving party has no valid defence available, and that the expression’s likely or actual harm to the respondent is serious enough that public interest lies with allowing their litigation.

[25] If a judge dismisses a proceeding based on CJA section 137.1, the moving party is entitled to costs on the motion and the proceeding on a full indemnity basis, but if a proceeding is not dismissed, the responding party is not entitled to costs on the motion unless the judge determines that such an award is appropriate in the circumstances.

1) Does the Expression relate to a matter of Public Interest?

[26] 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.

[27] The concept of “public interest” as it is used in CJA section 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: See 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685.

[28] The 2010 Report of the Anti-SLAPP Advisory Panel to the Attorney General (the “Panel”) observed, at para. 18 of its Report:

[T]he purpose of the statute is to expand the democratic benefits of broad participation in public affairs and to reduce the risk that such participation will be unduly hampered by fear of legal action. It would seek to accomplish these purposes by encouraging the responsible exercise of free expression by members of the public on matters of public interest and by discouraging litigation and related legal conduct that interferes unduly with such expression. [Emphasis added]

[29] The concept of “public interest” contemplates conversations that go beyond mere personal disputes or discussions, and considers the conversation from the perspective of the public at large. Would there be an interest from any member or segment of the community in the conversation?

[30] In London Artists, Ltd. v. Littler, [1969] 2 All E.R. 193 (C.A.), albeit in the context of the fair comment defence, Lord Denning, M.R., described public interest in the following way:

Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment. [p. 198]

[31] Comments or conversations relating to corporations or businesses will more obviously have a public dimension to them. Members of the public or at least segments of the community will have an interest in knowing something about the companies that offer them services. This is true not only from the perspective of the “quality” of the services offered, but also from the perspective of whether or not a member of the public would want to contribute funds to the business/corporation.

[32] In this respect, a company’s business practices, the conduct of its management, and even the company’s activities in the community will often have significance to the community.

[33] Accordingly, I am satisfied that the Plaintiff has met its onus of demonstrating that the conversations address an issue of public interest.

2) Should the Action be Permitted to Proceed?

[34] If the defendant (moving party) clears CJA section 137.1(3), the inquiry moves on to section 137.1(4). That section reads:

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 proceedings.

(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.

[35] Under section 137.1(4)(b), the plaintiff (responding party) has the persuasive burden. In other words, the plaintiff must convince the motion judge that their proceeding has merit, and that the expression’s likely or actual harm to the Respondent is serious enough that public interest lies with allowing the matter to proceed.

[36] The Anti-SLAPP Advisory Panel to the Attorney General recognized that other interests that could conflict with freedom of expression also deserved vindication through the legal process, stating, at paras. 36-37:

The fact that a legal action may have an adverse effect on the ability of persons to participate in discussion on matters of public interest should not be sufficient to prevent the plaintiff’s action from proceeding. The protection and promotion of such expression should not be a cover for expression that wrongfully harms reputational, business or personal interests of others.

Conversely, the fact that a plaintiff’s claim may have only technical validity should not be sufficient to allow the action to proceed. If an action against expression on a matter of public interest is based on a technically valid cause of action but seeks a remedy for only insignificant harm to reputation, business or personal interests, the action’s negative impact on freedom of expression may be clearly disproportionate to any valid purpose the litigation might serve.

[37] There is a public interest in open discourse as evident from the Anti-SLAPP provisions themselves. However, the public also has an interest in preventing defamation and libel. As explained in Grant v. Torstar Corp., 2009 SCC 61 at para. 58:

Canadian law recognizes that the right to free expression does not confer a licence to ruin reputations. In assessing the constitutionality of the Criminal Code’s defamatory libel provisions, for example, the Court has affirmed that “[t]he protection of an individual’s reputation from wilful and false attack recognizes both the innate dignity of the individual and the integral link between reputation and the fruitful participation of an individual in Canadian society”: R. v. Lucas, 1998 CanLII 815 (SCC), [1998] 1 S.C.R. 439, at para. 48, per Cory J.

[38] The purpose of CJA section 137.1(4)(a) is not to determine whether or not the claim will succeed. Rather, it is to assess whether or not there is a meaningful action in place, or whether the claimant has merely commenced the action to frustrate legitimate expressions contemplated under the threshold inquiry. As explained in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 at paras. 73-75:

Section 137.1 does not provide an alternate means by which the merits of a claim can be tried, and it is not a form of summary judgment intended to allow defendants to obtain a quick and favourable resolution of the merits of allegations involving expressions on matters of public interest. Instead, the provision aims to remove from the litigation stream at an early stage those cases, which under the criteria set out in the section, should not proceed to trial for a determination on the merits.

Judicial screening of claims at a pretrial stage occurs in both criminal and civil litigation. The purpose of the screening process varies, as do the screening criteria. Judges engaged in pretrial screening generally do not make, however, findings of fact in relation to the issues on which the litigation turns, credibility determinations, or any ultimate assessment of the merits of a claim or a defence.

[39] The Plaintiff must also satisfy the motion judge that the harm caused to it by the Defendant’s expression is “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.

[40] In this case, there is no doubt that the harm caused by the expression was serious. I accept the statements made by Afroz Brown in her affidavit that the Facebook posts have had a serious impact on the Plaintiff’s business operations.

[41] I also accept that there is potential merit to the proceeding. I have heard the recording. Nothing on the recording would constitute yelling. Nothing in the recording would appear to constitute unfair or cruel treatment, or workplace harassment, particularly given the context of their earlier conversation.

[42] I am also satisfied that the Facebook postings go well beyond factual statements. They are largely opinions and commentary on the business practices of the Plaintiff.

[43] The record indicates that there was a relationship between Melissa Marques and both of the Defendants. On the limited record before me, there is clearly support for the claim that the negative commentary and remarks were actuated by malice and specifically directed at damaging the company.

[44] When considered as a whole, I am satisfied that the proceeding has sufficient merit, and that the expression’s likely or actual harm is serious enough that public interest lies with allowing the matter to proceed.

Disposition

[45] Accordingly, the motion under CJA section 137.1 is dismissed.

[46] In the circumstances, costs of the motion are ordered in the cause.

Justice C.F. de Sa

Released: August 12, 2019