Amorosi v. Barker
Ontario Reports
Ontario Superior Court of Justice
Petersen J.
August 9, 2019
147 O.R. (3d) 362 | 2019 ONSC 4717
Case Summary
Torts — Defamation — Summary dismissal — Defendant writing and posting blog articles alleging that plaintiff was dishonest and incompetent in exercise of his duties as municipal administrator — Plaintiff commencing defamation action — Defendant bringing motion under s. 137.1 of Courts of Justice Act for summary dismissal of action — Motion dismissed — Impugned blog posts relating to matter of public interest — Reasonable trier of fact could conclude that claim had real chance of success at trial — Plaintiff demonstrating that harm he suffered or was likely to suffer as result of defendant's expression was sufficiently serious that public interest in permitting proceeding to continue outweighed public interest [page363] in protecting defendant's expression — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1.
The defendant reported on municipal affairs on his Internet blog. He wrote and posted a number of articles characterizing the plaintiff as dishonest, unqualified for his position as Deputy Chief Administrative Officer for the City of Guelph, and incompetent in respect of his human resources management and financial oversight duties. The plaintiff sued for damages for defamation. The defendant brought a motion pursuant to s. 137.1 of the Courts of Justice Act for the summary dismissal of the action.
Held, the motion should be dismissed.
The impugned blog posts related to a matter of public interest. There were grounds to believe that the action had substantial merit. The defendant advanced three defences: truth; fair comment; and responsible communication. A reasonable trier could reject the defence of truth at trial, as there were serious questions about the veracity of many of the impugned statements. A reasonable trier could reject the defence of fair comment, as many of the presumptively defamatory statements could be viewed by a reasonable trier as assertions of fact, not opinion, and while there was little intrinsic evidence of malice, there were extrinsic factors that pointed in that direction. A reasonable trier could reject the defence of responsible communication, as the defendant published his posts without making any effort to obtain the plaintiff's version of the events, and he admitted that his impugned statements were based on assumptions that he made that he failed to verify. The claim did not have the hallmarks of a classic strategic lawsuit against public participation. The plaintiff did not have a history of using litigation or the threat of litigation to silence critics, and there was no evidence of any punitive or retributory purpose motivating the lawsuit. The plaintiff claimed that the impugned posts were hindering his search for a new job. The blog posts appeared when a Google search of the plaintiff's name was conducted, and it is a well-known fact that recruiters and employers use the Internet to do online searches about candidates as part of their vetting process. The impugned blog posts could reasonably be found to be motivated by political interests and a desire for accountability, rather than by personal animus. There is heightened interest in protecting political speech, because it lies at the core of the values underlying the constitutional guarantee of freedom of expression. It was also relevant that this case involved a blogger who wrote primarily about municipal affairs in the context of a relatively small community with no daily newspaper. While this was a close call, the harm suffered or likely to be suffered by the plaintiff as a result of the defendant's impugned expression was sufficiently serious that the public interest in permitting the proceeding to continue marginally outweighed the substantial public interest in protecting the defendant's expression.
1704604 Ontario Ltd. v. Pointes Protection Assn. (2018), 142 O.R. (3d) 161, [2018] O.J. No. 4449, 2018 ONCA 685, 23 C.P.C. (8th) 312, 79 M.P.L.R. (5th) 179, 426 D.L.R. (4th) 233, 50 C.C.L.T. (4th) 173, 297 A.C.W.S. (3d) 504 [Leave to appeal to S.C.C. granted [2018] S.C.C.A. No. 467], apld
Other cases referred to
Able Translations Ltd. v. Express International Translations Inc., [2018] O.J. No. 4443, 2018 ONCA 690, 428 D.L.R. (4th) 568, 23 C.P.C. (8th) 404, affg [2016] O.J. No. 5740, 2016 ONSC 6785, 410 D.L.R. (4th) 380, 272 A.C.W.S. (3d) 68 (S.C.J.); Armstrong v. Corus Entertainment Inc. (2018), 143 O.R. (3d) 54, [2018] O.J. No. 4441, 2018 ONCA 689, 23 C.P.C. (8th) 381, 427 D.L.R. (4th) 236, 296 A.C.W.S. (3d) 666; Bondfield Construction Co. v. Globe and Mail Inc. (2019), 2019 ONCA 166, 144 O.R. (3d) 291, [page364] [2019] O.J. No. 1086, 2019 ONCA 166; Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3, [1995] S.C.J. No. 69, 126 D.L.R. (4th) 609, 186 N.R. 1, J.E. 95-1800, 85 O.A.C. 81, 26 C.C.L.T. (2d) 109, 57 A.C.W.S. (3d) 592; Canadian Standards Assn. v. P.S. Knight Co., [2019] O.J. No. 2108, 2019 ONSC 1730 (S.C.J.); Grant v. Torstar Corp., [2009] 3 S.C.R. 640, [2009] S.C.J. No. 61, 2009 SCC 61, 314 D.L.R. (4th) 1, 397 N.R. 1, J.E. 2010-8, 258 O.A.C. 285, 72 C.C.L.T. (3d) 1, 79 C.P.R. (4th) 407, 204 C.R.R. (2d) 1, [2010] I.L.R. para. G-2321, 183 A.C.W.S. (3d) 1173, EYB 2009-167615, 2010EXP-17; Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, [2004] S.C.J. No. 28, 2004 SCC 33, 239 D.L.R. (4th) 193, 320 N.R. 49, [2004] 8 W.W.R. 1, J.E. 2004-1104, 27 Alta. L.R. (4th) 1, 348 A.R. 201, 119 C.R.R. (2d) 84, 130 A.C.W.S. (3d) 746; Hill v. Church of Scientology of Toronto (1995), 1995 59 (SCC), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, [126 D.L.R. (4th) 129, 184 N.R. 1, J.E. 95-1495, 84 O.A.C. 1, 25 C.C.L.T. (2d) 89, 30 C.R.R. (2d) 189, 56 A.C.W.S. (3d) 495, REJB 1995-68609; Lascaris v. B'nai Brith Canada (2019), 144 O.R. (3d) 211, [2019] O.J. No. 1126, 2019 ONCA 163; Levant v. Day, [2019] O.J. No. 1536, 2019 ONCA 244; Miceli v. Swinton, [2019] O.J. No. 2598, 2019 ONSC 2926 (S.C.J.); Platnick v. Bent, [2018] O.J. No. 4445, 2018 ONCA 687, 419 C.R.R. (2d) 61, 82 C.C.L.I. (5th) 191, 23 C.P.C. (8th) 275, 426 D.L.R. (4th) 60, 296 A.C.W.S. (3d) 667 [Leave to appeal to S.C.C. granted [2018] S.C.C.A. No. 466]; Thompson v. Cohodes, [2017] O.J. No. 2113, 2017 ONSC 2590 (S.C.J.); Veneruzzo v. Storey, [2018] O.J. No. 4447, 2018 ONCA 688, 23 C.P.C. (8th) 352; WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420, [2008] S.C.J. No. 41, 2008 SCC 40, 175 C.R.R. (2d) 145, EYB 2008-135084, J.E. 2008-1350, 56 C.C.L.T. (3d) 1, 293 D.L.R. (4th) 513, 256 B.C.A.C. 1, 80 B.C.L.R. (4th) 1, 66 C.P.R. (4th) 121, 376 N.R. 80, [2008] 8 W.W.R. 195, 166 A.C.W.S. (3d) 792
Statutes referred to
Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 137.1, (1), (3), (4), (a), (ii), (b), 137.2(1), (2), (4)
MOTION for summary dismissal of a defamation action.
Iain MacKinnon, for plaintiff/respondent.
Jordan Goldblatt and Jocelyn Howell, for defendant/moving party.
PETERSEN J.: —
Introduction
1Mark Amorosi is suing Gerry Barker for defamation. Mr. Barker has brought a motion seeking to have the action against him dismissed.
2Mr. Barker is a retired journalist who operates an Internet blog called Guelph Speaks. He reports on political affairs with an emphasis on issues of municipal governance in Guelph. It is undisputed that he wrote and posted several articles on his blog that were critical of Mr. Amorosi, who was, at the time, the Deputy Chief Administrative Officer ("DCAO") for the City of Guelph. Those articles form the basis of Mr. Amorosi's lawsuit.
3The impugned blog posts characterize Mr. Amorosi as dishonest, unqualified for his position and incompetent in respect of [page365] his human resources management and financial oversight duties as DCAO. More specifically, the posts suggest that Mr. Amorosi was responsible for certain improvident fiscal decisions made by the City, that he abused both public funds and the public trust by giving himself a substantial raise in salary that was excessive and unjustified, and that he deliberately concealed his salary increase from the public.
4Mr. Amorosi pleads that the impugned statements in the blog posts are false and defamatory. He claims that the posts caused him professional and personal harm to both his reputation and his health.
5The basis of Mr. Barker's motion to dismiss Mr. Amorosi's action is that it constitutes a strategic lawsuit against public participation (known as a "SLAPP"). Mr. Barker submits that Mr. Amorosi -- with the backing of the City of Guelph -- is using the defamation action tactically in an effort to silence his reporting on the misdeeds of the City's administration. He argues that Mr. Amorosi's defamation claim is groundless and that, even if it were to prevail at trial, Mr. Amorosi suffered no real harm and therefore would be entitled to nominal damages at best. Mr. Barker asks the court to find that this proceeding is not a genuine defamation action intended to protect Mr. Amorosi's reputation, but rather was commenced with the strategic intent of "gagging" his expression and imposing a "chill" on the expression of others who, like him, would shed light on municipal governance issues of concern to the public.
6Mr. Barker's motion is brought pursuant to the anti-SLAPP provisions in s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA"). The purposes of those provisions are set out in s. 137.1(1) as follows: (a) to encourage individuals to express themselves on matters of public interest; (b) to promote broad participation in debates on matters of public interest; (c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and (d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.
7The anti-SLAPP provisions are not intended to preclude legitimate defamation claims.
8My task is to determine whether Mr. Amorosi's action is a SLAPP suit that must be dismissed pursuant to s. 137.1 of the CJA or whether it is a genuine defamation claim that should proceed to trial.
Analytical Framework [page366]
9The following subsections of s. 137.1 of the CJA set out the analytical framework to be followed:
(3) 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.
(4) 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.
Issues
10There are three issues to be determined on this motion:
(i) Has Mr. Barker established that his impugned blog posts constitute expression that relates to a matter of public interest? (If not, the motion to dismiss the action must fail.)
(ii) If so, has Mr. Amorosi demonstrated grounds to believe that his proceeding has substantial merit and that Mr. Barker has no valid defence? (If not, the motion to dismiss the action must be granted.)
(iii) Has Mr. Amorosi demonstrated that the harm he suffered or is likely to suffer as a result of Mr. Barker's expression is sufficiently serious that the public interest, in permitting the proceeding to continue, outweighs the public interest in protecting Mr. Barker's expression? (If not, the motion to dismiss the action must be granted.)
(i) Do the impugned blog posts relate to a matter of public interest?
11Mr. Barker cannot avail himself of the remedy in s. 137.1(3) of the CJA unless he demonstrates that the proceeding against him arose from expression "that relates to a matter of public interest". The onus to prove this threshold requirement is relatively easy to discharge because s. 137.1(3) merely requires that the impugned expression "relate to" a matter of public interest. It does not require that the expression actually further the public interest. Indeed, expression may relate to a matter of public interest even if [page367] it is found to be harmful to the public interest: 1704604 Ontario Ltd. v. Pointes Protection Assn. (2018), 142 O.R. (3d) 161, [2018] O.J. No. 4449, 2018 ONCA 685, at para. 55 (leave to appeal to S.C.C. granted [2018] S.C.C.A. No. 467, 2019 CarswellOnt 6378); Levant v. Day, [2019] O.J. No. 1536, 2019 ONCA 244, at para. 10.
12The question of how central or peripheral the impugned expression is to the public interest is not assessed at this threshold stage of the inquiry. That assessment takes place later, under s. 137.1(4)(b) of the CJA, when the court weighs the public interest in permitting the litigation to proceed against the public interest in protecting the expression: Able Translations Ltd. v. Express International Translations Inc., [2016] O.J. No. 5740, 2016 ONSC 6785 (S.C.J.), at para. 29, affd [2018] O.J. No. 4443, 2018 ONCA 690. Similarly, at this preliminary stage of the analysis, the court does not take into consideration the manner of expression or the motive of its author. Those factors are not considered until later in the analysis. Consequently, expression can be found to "relate to" a matter of public interest within the meaning of s. 137.1(3) even if its author uses intemperate language or is motivated by malice: Pointes, at paras. 55 and 65; Levant, at para. 10.
13The determination of whether 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": Pointes, at para. 65; Levant, at para. 10; Veneruzzo v. Storey, [2018] O.J. No. 4447, 2018 ONCA 688, at para. 17. The words used by Mr. Barker to describe and criticize Mr. Amorosi's qualifications, competence, character and conduct are therefore not to be scrutinized in isolation. I am required to consider the subject matter of Mr. Barker's blog posts as a whole in deciding whether the action against him arises from expression that relates to a matter of public interest: Grant v. Torstar Corp., [2009] 3 S.C.R. 640, [2009] S.C.J. No. 61, 2009 SCC 61, at para. 10; Pointes, at paras. 60-66.
14To be of public interest, a subject matter must invite public attention or be one about which members of the public have some substantial concern. The fact that much of the public would be less than riveted by a given subject matter does not remove the subject from the public interest: Grant, at para. 102. All that Mr. Barker is required to show under s. 137.1(3) of the CJA is that some segment of the public would have a genuine interest in receiving information on the subject in question: Pointes, at para. 58.
15Based on the motion record before me, I conclude that Mr. Barker has satisfied this threshold. His impugned statements about Mr. Amorosi's qualifications, competence, character and [page368] conduct were all made in the context of Mr. Amorosi's duties and responsibilities as a public servant. The statements do not intrude into Mr. Amorosi's private life. Moreover, the statements about Mr. Amorosi form part of a broader report on the City of Guelph's municipal government affairs, specifically on the state of the City's finances, the expenditure of public funds, the transparency of decision-making and the job performance of those in charge of the City's management and budget. These are all matters that invite public attention and about which members of the public, particularly Guelph residents, have an undeniable interest. As Mr. Barker deposed, "There are few things more important to tax payers than knowing how their money is being spent."
16I am therefore satisfied that the impugned expression relates to a matter of public interest. Mr. Barker has discharged his onus under s. 137.1(3) of the CJA.
(ii) Are there grounds to believe that Mr. Amorosi's action has substantial merit and that Mr. Barker has no valid defence?
17The onus now shifts to Mr. Amorosi, who must demonstrate the required elements of s. 137.1(4) of the CJA. Subsection 137.1(4)(a) requires Mr. Amorosi to satisfy the court that there are grounds to believe (i) that his legal proceeding has substantial merit, and (ii) that Mr. Barker has no valid defence. Mr. Amorosi must establish an objective basis for such belief. In other words, he must show that there are reasonable grounds to believe that his action has substantial merit and that any defences advanced by Mr. Barker would not succeed at trial: Pointes, at para. 69; Platnick v. Bent, [2018] O.J. No. 4445, 2018 ONCA 687, at para. 49 (leave to appeal to S.C.C. granted [2018] S.C.C.A. No. 466).
18A claim has "substantial merit" if it is legally tenable and is supported by evidence, such that a reasonable trier could conclude that the claim has a real chance of success: Pointes, at para. 80. My task is therefore to determine whether a reasonable trier could conclude (i) that Mr. Amorosi has a real chance of establishing that Mr. Barker defamed him, and (ii) that Mr. Barker has no valid defence to the defamation claim: Platnick, at paras. 44 and 49.
19I am mindful that this inquiry does not involve an assessment of the ultimate merits of Mr. Amorosi's claim. The Ontario Court of Appeal has cautioned trial judges not to approach the evidentiary record in an anti-SLAPP motion as if it were a summary judgment record: Lascaris v. B'nai Brith Canada (2019), 144 O.R. (3d) 211, [2011] O.J. No. 1126, 2019 ONCA 163, at para. 30. The early timing of anti- SLAPP motions (even prior to the filing of a statement of [page369] defence1), the expedited hearing process (within 60 days2), and the statutory restrictions on cross-examinations of affiants3 will typically result in abbreviated records that do not allow for comprehensivescrutiny of the ultimate merits of the claim: Pointes, at paras. 76-78. Anti-SLAPP motions are a screening device designed to eliminate certain types of claims at an early stage; they are not a form of summary judgment motion: Pointes, at para. 73.
20With that caveat in mind, I will now proceed to consider whether a reasonable trier could conclude that Mr. Amorosi's defamation claim has a real chance of success at trial.
21In order to have a legally tenable cause of action, a plaintiff in any defamation case must lead evidence to establish the following elements of the tort: (i) that the words complained of referred to the plaintiff; (ii) that the words were communicated to at least one other person; and (iii) that the words complained of were defamatory in the sense of tending to lower the plaintiff's reputation in the eyes of a reasonable person: Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3, [1995] S.C.J. No. 69, at p. 24 S.C.R.; Hill v. Church of Scientology of Toronto (1995), 1995 59 (SCC), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, at para. 164.
22Mr. Barker admits that the impugned statements were posted on his Internet blog site, which attracts 550 views during an average seven-day period. The "communication" element of the tort of defamation is therefore not in dispute. His statements were clearly communicated to at least one other person.
23In his factum, Mr. Barker argues that it is also clear from the words used in his posts that he was expressing concern about municipal government affairs generally and not about Mr. Amorosi's individual conduct or competence. He submits that a reasonable reader would understand this. He further submits that the posts could not reasonably be found to lower Mr. Amorosi's reputation in the estimation of right-thinking members of society. He asks the court to find that there is therefore no reasonable basis upon which a trier could conclude that the posts are defamatory.
24I disagree with these submissions because many of the impugned statements in the posts refer specifically to Mr. [page370] Amorosi by name. They are not generic posts about municipal affairs, but rather constitute personal attacks on Mr. Amorosi's qualifications, competence and integrity. For example,
(a) On December 11, 2015, Mr. Barker published a post in which he described Mr. Amorosi's "rise through the ranks" of the city's administration as "remarkable considering he has an HR background not the financial experience required of a Chief Financial Officer".
(b) On March 27, 2016, Mr. Barker posted an article about salary increases for senior city managers in which he stated, "One would presume that being in charge of two vital departments of the city, that Amorosi would be careful with the public's money. He was careful all right, he helped himself to a $26,868 raise in salary less than four months after being appointed DCAO."
(c) On March 31, 2016, Mr. Barker posted an article in which he stated that Mr. Amorosi was the "gatekeeper in charge of how much and who receives pay and benefit increases, including his own". He also wrote that Mr. Amorosi's "track record as financial overseer has been fraught with missteps and confusion. But he found the time to help himself with a base salary increase of $33,279 from December 2013 to March 25, 2015". Mr. Barker also stated that this "monster increase" in salary "was never revealed to the public because it was discussed in closed sessions of council".
(d) On April 8, 2016, Mr. Barker posted an article in which he stated that, "Under Amorosi's watch, we have gone through two General Managers of Finance and currently the vacant position is being filled with an in-house senior financial staffer. What more evidence do we need that Mr. Amorosi, who holds no accredited financial background, is out of his depth managing the city's finances?"
(e) Mr. Barker named Mr. Amorosi along with three other senior city officials in another article posted on April 10, 2016, in which he wrote, "The dereliction of responsibility here, rests with those four executive managers who helped themselves to the public treasury, conned the majority of council to approve [their salary increases] in closed session, and buried the result for a year." He added, "That self-serving manipulation ranks right up there with the Japanese attack on Pearl Harbour December 7, 1941, described by President Franklin Roosevelt, as a 'Day in Infamy'." [page371]
(f) On August 1, 2016, Mr. Barker posted an article that included the following statements: "Under the management of the city's finances, Mark Amorosi has overseen the most cathartic waste of public funds endured in recent memory." He also wrote, "This is not Amorosi's first rodeo. He's been in charge of the city finances for 20 months. During that time he was the key player in the great Salary-Gate episode that saw the former ADO, Ann Pappert, receive a $38,000 increase for 2015 and Amorosi and Thomson plus former CFO Al Horseman receiving 12 to 19 per cent increases. Talk about helping yourself and not telling anyone." The article openly called for Mr. Amorosi's resignation.
(g) On August 6, 2016, Mr. Barker posted another article in which he repeated many of his earlier statements about Mr. Amorosi, including the claim that Mr. Amorosi used his "unique position of power" to "look after himself and fellow senior staff" with "unearned salary increases" that council approved in closed session. Mr. Barker described this as "a sneaky attack on the public purse" that "makes the Japanese attack on Pearl Harbour almost saintly by comparison".
(h) Statements to the same effect were made in other articles, including one posted on September 18, 2016, in which Mr. Barker wrote that Mr. Amorosi "lied" when he announced that the city was in sound financial condition.
25The above list is just a sample of some of the impugned statements made by Mr. Barker in his posts. The articles also include criticisms of other senior city officials, but Mr. Amorosi is the primary target of Mr. Barker's reproach. Indeed, Mr. Amorosi is personally named in four of the headlines, not just in the body of the articles. The content of the articles is more accurately characterized as a personal attack on Mr. Amorosi than a general criticism about the City's alleged mismanagement of public funds.
26The words used by Mr. Barker in his blog posts are capable of defamatory meaning in so far as they tend to tarnish Mr. Amorosi's reputation as a career public servant. A trier could conclude that the blog posts would diminish a reasonable reader's confidence in Mr. Amorosi's aptitude to oversee the City's finances and human resources. A trier could also conclude that the posts would have a negative impact on a reasonable member of the public's trust in Mr. Amorosi's integrity.
27There are therefore grounds to believe that Mr. Amorosi's defamation action has substantial merit. [page372]
28The next step is to examine the motion record through a "reasonableness lens" and decide whether a trier could conclude that none of the defences advanced by Mr. Barker would succeed at trial: Pointes, at para. 84; Bondfield Construction Co. v. Globe and Mail Inc. (2019), 144 O.R. (3d) 291, [2019] O.J. No. 1086, 2019 ONCA 166, at para. 14. Once again, my task is not to determine the ultimate merits of any defences. The question for me to answer (based on the motion record) is whether a conclusion that Mr. Barker has no valid defence falls within the range of conclusions reasonably available to a trier: Pointes, at para. 75; Levant, at para. 14. In other words, Mr. Amorosi is required, under s. 137.1(4)(a)(ii) of the CJA, to show that a reasonable trier could reject the defences advanced by Mr. Barker.
29In this motion, Mr. Barker advances three defences, namely, (a) truth, (b) fair comment, and (c) responsible communication. I will examine each of these defences based on the hypothetical presumption that his impugned statements are found to be defamatory. (I note that the defence of qualified privilege was also pleaded by Mr. Barker, but he does not rely on it for the purpose of this anti-SLAPP motion.)
30In order to succeed with the defence of truth at trial, Mr. Barker will be required to prove that his presumptively defamatory statements about Mr. Amorosi are substantially true: Grant, at para. 33. Upon my review of the motion record, I am left with serious questions about the veracity of many of his impugned statements. For example,
(a) As noted above, in his March 31, 2016 post, Mr. Barker explicitly stated that Mr. Amorosi was "in charge of" his own pay increases. In numerous posts, he stated that Mr. Amorosi "looked after" himself by "helping himself" to a substantial pay raise. Mr. Amorosi denies having given himself a raise. Moreover, he denies even having the authority to do so. His evidence is supported by the documentary record, which shows that salary increases for DCAOs is within the sole discretion of the City's Chief Administrative Officer.
(b) In a post dated March 28, 2016 (in the comments section of his blog), Mr. Barker stated that Mr. Amorosi's pay increase had to have been approved by council in a closed session meeting. In a post on April 11, 2016, Mr. Barker stated that Mr. Amorosi and three other executive managers "conned the majority of council to approve" their salary increases in closed session. In a post dated November 6, 2016, Mr. Barker referred once again to a closed session of council in which the salary increases were [page373] ostensibly approved, calling it an "egregious deliberate cover-up". However, Mr. Amorosi's uncontradicted evidence is that council did not approve his salary increase. Moreover, the documentary evidence in the record shows that city council is not required to approve the CAO's decisions regarding salary increases for non-union staff, provided that there is room in the budget for the increases (which there was in this case).
(c) In his August 1, 2016 post, Mr. Barker discussed a controversial matter involving Guelph Municipal Holdings Inc. ("GMHI"). He stated that between $130,000 and $160,000 was wasted on fees paid to a consultant hired by the City to review the matter when a staff report would have been sufficient. He remarked that "it was classic Amorosi to order an independent consultant in to review the situation . . . it's called protecting your behind by using a paid third party to do the deed." Mr. Amorosi's uncontested evidence is that he did not hire the consultant; the consultant was retained by GMHI.
(d) In his August 6, 2016 post, Mr. Barker described Mr. Amorosi as "the architect of building a bloated bureaucracy". He stated that Mr. Amorosi "is in charge of all personnel and their issues including salaries, wages and benefits . . . And, more than 80 per cent of all property taxes are used to pay the staff". Mr. Barker was unable to furnish any documentation to support this statistic. Mr. Amorosi's uncontested evidence is that only 45 per cent of property taxes were used to pay staff at that time.
31The above are only some examples of statements made by Mr. Barker that a reasonable trier could find to be false. On the motion record before me, I conclude that a reasonable trier could reject the defence of truth at trial, at least in respect of some of the presumptively defamatory statements.
32The second defence advanced by Mr. Barker is that of fair comment. A quintessential element of this defence is that the impugned statement must be recognizable as comment: WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420, [2008] S.C.J. No. 41, 2008 SCC 40, at para. 28; Lascaris, at para. 24. Comments are statements of opinion. They are inherently subjective and are distinguishable from defamatory statements of fact, which purport to assert objective truth. If words are presented in a manner that does not indicate with reasonable clarity that they are a comment and not a statement of fact, the words may be found to be a statement of fact. A defamatory assertion of fact can never be defended as fair comment: Simpson, at para. 26; Thompson [page374] v. Cohodes, [2017] O.J. No. 2113, 2017 ONSC 2590 (S.C.J.), at para. 26; Levant, at paras. 40 and 42.
33In my view, some of Mr. Barker's impugned statements could reasonably be construed as subjective opinions about Mr. Amorosi's job performance. Other statements could reasonably be construed as assertions of fact. For example, his statement that Mr. Amorosi's "track record as financial overseer has been fraught with missteps and confusion" is reasonably recognizable as opinion. His statement that Mr. Amorosi "has overseen the most cathartic waste of public funds endured in recent history" could also be recognized as opinion. In contrast, his assertion that Mr. Amorosi created a bloated bureaucracy in which more than 80 per cent of all property taxes were used to pay city staff could reasonably be interpreted as a statement of fact. Similarly, his assertion that Mr. Amorosi wasted over $130,000 of the City's money by ordering an unnecessary independent review of the GMHI matter could reasonably be construed as an assertion of facts.
34In my view, it would be open to a reasonable trier to conclude that Mr. Barker's repeated statements about Mr. Amorosi "helping himself" to a pay raise are assertions of an objective fact. In his affidavit, Mr. Barker deposed that he "did not mean that Mr. Amorosi literally wrote his own cheque" and "did not believe anyone reading the post would have interpreted this phrase literally". However, during his cross-examination, Mr. Barker acknowledged that he himself believed that Mr. Amorosi did just that.
35For all of the above reasons, I find that many of Mr. Barker's presumptively defamatory statements could be viewed by a reasonable trier as assertions of fact, not opinion. This would be sufficient to defeat the defence of fair comment. It is therefore unnecessary for me to examine the next element of the defence, namely, whether Mr. Barker provided a factual basis for his defamatory opinions: Able Translations (C.A.), at paras. 35-36.
36Even if all of Mr. Barker's impugned statements constitute factually based comments that could be honestly held on an objective basis, his defence of fair comment could fail if his expression was found to be actuated by malice. Malice is established where someone publishes a defamatory statement knowing that it is false or recklessly indifferent as to whether it is true or false, and for the dominant purpose of injuring the plaintiff because of spite, animosity or some other improper purpose: Hill v. Church of Scientology, at para. 148. Malice may be inferred from the words used in the defamatory statements themselves or from extrinsic evidence: Canadian Standards [page375] Assn. v. P.S. Knight Co., [2019] O.J. No. 2108, 2019 ONSC 1730 (S.C.J.), at para. 105.
37There is little evidence of intrinsic malice in this case. With the exception of the comparisons that Mr. Barker made to the attack on Pearl Harbour, the posts are not filled with hyperbole. The language used is not particularly inflammatory. The statements about Mr. Amorosi are critical, but they are not abusive or vitriolic.
38There are, however, extrinsic factors that may constitute evidence of malice. Mr. Barker used his blog to criticize Mr. Amorosi over a period of many months. He repeated the allegation that Mr. Amorosi "helped himself" to a raise numerous times in over ten different posts. The intensity and duration of the posts -- combined with the failure to take steps to verify the accuracy of their content -- are factors reasonably capable of supporting an inference of malicious intent to harm Mr. Amorosi's reputation. A reasonable trier could conclude that Mr. Barker engaged in a sustained personal attack on Mr. Amorosi.
39Mr. Amorosi argues that he was targeted in the blog posts because of his perceived affiliation with the prior Farbridge administration. The record establishes that Mr. Barker is a co-founder of and spokesperson for GrassRoots Guelph, a political group formed to campaign against the re-election of Guelph's former mayor, Karen Farbridge, in 2014. In several of his posts, Mr. Barker linked Mr. Amorosi to Ms. Farbridge and described him as part of Ms. Farbridge's alleged legacy of mismanagement and dereliction of responsibility. In his August 6, 2016 post entitled "The Farbridge Fallout: 10 years of toxic administration leaves an enduring legacy", Mr. Barker stated that Mr. Amorosi was a senior employee who "artfully engineered" continuity of the former Farbridge administration's policies and practices. Mr. Barker wrote, "What does it take to rid our administration of this individual who has been the author and executor of the city's declining financial capacity? It is now apparent that Amorosi was picked to meet her objectives by Farbridge as her got-to (sic) guy to steer her now misguided and failed vision of Guelph."
40I accept the submission that a reasonable trier could conclude that Mr. Amorosi was targeted in the blog posts because of his perceived affiliation with Ms. Farbridge. However, Mr. Barker's criticisms of the Farbridge administration -- including his criticisms of Mr. Amorosi -- could also reasonably be characterized as politically, rather than personally motivated. A reasonable trier could conclude that Mr. Barker's dominant purpose was to promote accountability rather than to injure Mr. Amorosi's reputation. Seeking accountability of public officials is not an improper purpose. [page376]
41In my view, based on the totality of the record, the issue of malice could go either way at trial. If the trier concluded that there was malice, the defence of fair comment would fail. A "determination that a defence 'could go either way' in the sense that a reasonable trier could accept it or reject it is a finding that a reasonable trier could reject the defence": Bondfield, at para. 15.
42The third defence advanced by Mr. Barker is that of responsible communication. For this defence to succeed, Mr. Barker would be required to show that his impugned blog posts were responsible in the sense that he took reasonable steps to ensure both the overall fairness of the posts and the accuracy of any factual assertions in them: Grant, at paras. 98 and 110; Armstrong v. Corus Entertainment Inc. (2018), 143 O.R. (3d) 54, [2018] O.J. No. 4441, 2018 ONCA 689, at paras. 35-48.
43The motion record demonstrates that Mr. Barker published his posts without making any effort to obtain Mr. Amorosi's version of the events. This is a significant factor in my assessment of whether a reasonable trier could reject Mr. Barker's defence of responsible communication at trial. In Grant, at para. 116, the Supreme Court of Canada noted that "[i]n most cases, it is inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond".
44An example of the unfairness that results from failing to provide Mr. Amorosi with an opportunity to respond can be found in Mr. Barker's November 6, 2016 post. Mr. Barker notes that Mr. Amorosi is responsible for Court Services as part of his portfolio, which is true. Mr. Barker then reports that, as of 2015, $8,022,000 of a total of $14,337,000 (55.9 per cent) in provincial offences fines levied has been deemed uncollectable, which is also true. He then implies that Mr. Amorosi is responsible for the low collection rate. He states, "Hmmm. If Mr. Amorosi was in private business and was responsible for company revenues, how long would he last when he reported a 55.9 per cent failure to collect court-awarded revenue?" However, the evidence in the record shows that a significant portion of the uncollected fines was inherited from the province when it transferred responsibility for the collection of provincial offences fines to municipalities in 2000. In his cross-examination, Mr. Barker acknowledged that he did not know this. Furthermore, he admitted that he did not ask anyone at the City about it before he published his blog. Had he done so, he would have learned that other municipalities were facing the same issue and that Mr. Amorosi had implemented strategies to address the issue. Had he been more diligent, he could have published a balanced and fair article about it. [page377]
45Another example is that Mr. Barker never asked Mr. Amorosi about his financial experience, education or training, despite writing on his blog that Mr. Amorosi was not qualified for the position that he held.
46Mr. Barker candidly admitted during his cross-examination that, on multiple occasions, he made no effort to get both sides of the story before publishing it.
47Had Mr. Barker attempted to ask Mr. Amorosi why he hired a consultant to review the GMHI matter, he would have learned that Mr. Amorosi did not, in fact, hire the consultant. This leads to another important consideration, namely whether Mr. Barker took reasonable steps to validate the accuracy of his presumptively defamatory factual assertions.
48Mr. Barker argues that he did take steps to attempt to verify his statements. He testified that he asked someone at the City why council went into a closed session when the controversial pay increases were discussed. He was told to go through Amber Gravel, the "special investigator for closed session meetings". He testified that he requested the minutes of the closed session meeting from Amber Gravel and after four months, he was told he could not have them.
49Mr. Barker admitted, however, that he did not contact anyone at the City to ask how the pay increases were determined before publishing that Mr. Amorosi helped himself to a raise and then conned City council into approving it. He acknowledged that he was not aware that Mr. Amorosi's salary increase did not require council approval. Indeed, during his cross-examination, he disputed that assertion and insisted that council did have a responsibility to approve individual salary increases -- yet he also conceded that he had no understanding of the process by which salary increases were actually approved. He admitted that he did not consult the City's website for information about how compensation is decided. Compensation policies were accessible on the website. He said, "It wasn't necessary [to consult the site]. I felt I had the numbers." In short, he knew the amount of Mr. Amorosi's pay raise, but he made no effort to find out how it was determined or by whom before publishing that Mr. Amorosi gave it to himself.
50The transcript of Mr. Barker's cross-examination is replete with other instances of Mr. Barker admitting that his impugned statements were based on assumptions that he made that were not verified by him. Although Mr. Barker cited his sources for some of the statements in his blog posts, he also made completely unsubstantiated statements, such as his claim that more than 80 per cent of all property taxes were being used to pay the [page378] salaries of city staff under Mr. Amorosi's direction. There are many instances in which a reasonable trier could conclude that Mr. Barker did not exercise reasonable diligence to ensure the accuracy of his statements. I am satisfied that a reasonable trier could reject the defence of responsible communication at trial.
51For all of the above reasons, to conclude that Mr. Barker has no valid defence falls within the range of conclusions reasonably available to a trier. Mr. Amorosi has therefore discharged his burden pursuant to s. 137.1(4) (a) of the CJA.
(iii) Does balancing the public interest favour continuation of the proceeding?
52I must next determine whether Mr. Amorosi has demonstrated that the harm he suffered or is likely to suffer as a result of Mr. Barker's expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting Mr. Barker's expression.
53In conducting the requisite public interest balancing, I am mindful of the very significant consequences to Mr. Amorosi if Mr. Barker's motion is allowed under s. 137.1(4)(b) of the CJA. The courtroom door will be closed on Mr. Amorosi even though his claim may have ultimately succeeded on its merits. As Justice Doherty noted for the majority of the Court of Appeal for Ontario in Pointes, at para. 98:
The Anti-SLAPP Advisory Panel envisioned this result only if the plaintiff had a "technically valid cause of action" and had suffered "insignificant harm". The language of s. 137.1(4)(b) does not contain those limitations. However, I think the Panel's words do describe the kind of case that should be removed from the litigation process through s. 137.1(4)(b).
54The public interest balancing in s. 137.1(4)(b) begins with the question, "Does this claim have the hallmarks of a classic SLAPP?": Platnick, at para. 98; Bondfield, at para. 22. One of the indicia of a typical SLAPP action is the existence of a financial or power imbalance between the parties that favours the plaintiff over the defendant: Lascaris, at paras. 31-32; Platnick, at para. 99. Mr. Barker argues that such an imbalance exists in this case because the City of Guelph is indemnifying Mr. Amorosi's legal fees. I agree that this creates a financial imbalance between the parties, but not of the sort that is a hallmark of a SLAPP suit. There is no evidence that the City of Guelph prompted Mr. Amorosi to commence the action. The City is not a party to the litigation. There is no evidence that the City is calling the shots behind the scenes. This action is between two individuals, one of [page379] whom happens to benefit from indemnification of his legal fees by his former employer.
55Other indicia of a classic SLAPP suit include a history of the plaintiff using litigation or the threat of litigation to silence critics; a punitive or retributory purpose animating the plaintiff's claim; and minimal or nominal damages suffered by the plaintiff: Platnick, at para. 99; Lascaris at para. 31. None of these hallmarks is present in this case. There is no history of Mr. Amorosi (or, for that matter, the City of Guelph) using litigation or the threat of litigation to silence critics like Mr. Barker. There is no evidence of any punitive or retributory purpose motivating Mr. Amorosi's lawsuit. His action appears to have been brought for the sole purpose of preserving and protecting his reputation. Finally, based on the evidence, I cannot conclude that the harm suffered by Mr. Amorosi is insignificant.
56The damages inquiry at this stage of the analysis does not involve a comprehensive assessment. The plaintiff who resists an anti-SLAPP motion is not required to present a thorough damages brief. Rather, the plaintiff must adduce sufficient evidence to enable the court to make a ballpark determination about the nature and quantum of damages suffered or likely to be suffered, including both monetary and non-monetary harm: Canadian Standards, at para. 121; Pointes, at paras. 90-91. General damages are presumed from the publication of libel and need not be established by proof of actual loss: Hill, at para. 167.
57It is sufficient for Mr. Amorosi to present specific and credible evidence of potentially significant pecuniary damages flowing from Mr. Barker's defamatory statements: Pointes, at paras. 90-92; Bondfield, at para. 25. Based on the motion record (as discussed above) and for the additional reasons set out below, I find that he has done so.
58I recognize that the criticisms levelled at him by Mr. Barker are not as egregious as some of the defamatory statements in other reported anti-SLAPP cases. Mr. Barker has not, for example, accused Mr. Amorosi of criminal conduct. Still, the sustained attack on his qualifications, competence and integrity is likely to have serious negative implications for his career aspirations, especially because the statements were posted on the Internet.
59The record shows that Mr. Barker's blog attracts 550 views during an average seven-day period. It is unknown whether viewers of the blog forwarded any of the impugned posts to other persons via e-mail, text or social media platforms, which would be easy given modern technology and the proliferation of mobile electronic devices. It is, however, a well-known fact that recruiters [page380] and employers use the Internet to do online searches about candidates as part of their vetting process. In Miceli v. Swinton, [2019] O.J. No. 2598, 2019 ONSC 2926 (S.C.J.), at para. 111, a case in which defamatory statements were published about a city employee on the Internet, the trial judge concluded that any municipality to which the plaintiff might apply for employment would no doubt become aware of the allegations against him in the process of conducting the requisite due diligence. That statement applies equally to Mr. Amorosi's situation.
60The evidence in the motion record establishes that Mr. Barker's blog posts appear when conducting a Google search of Mr. Amorosi's name. They are not the first results generated by the search, nor the only negative online statements about Mr. Amorosi, but there is little doubt that a recruiter or employer who searched Mr. Amorosi's name would quickly find them. It is not difficult to imagine how the blog posts might impair Mr. Amorosi's job prospects. Mr. Amorosi's uncontested evidence is that up until 2016, he used to be competitive for DCAO-level positions in other municipalities, routinely obtaining interviews and sometimes advancing to short lists. He further deposed that despite having applied for four separate similar positions, he has not received a single job interview since leaving his job at the City of Guelph in early 2017. He believes that the Mr. Barker's blog posts are hindering his job search.
61Mr. Barker argues that Mr. Amorosi's inability to obtain interviews for alternative employment is not causally connected to the blog posts, but rather is the result of news stories reporting on the termination of his employment with the City of Guelph. The motion record establishes that Mr. Amorosi left his position as DCAO shortly after commencing this lawsuit. He deposed that he agreed to accept responsibility for a privacy breach -- namely, the disclosure of confidential e-mails involving City staff and members of the public -- even though he had nothing to do with it. The e-mails were inadvertently disclosed by the City's external legal counsel in the context of disclosure provided to opposing counsel in a wrongful dismissal lawsuit. Mr. Amorosi did not personally disclose the confidential emails, nor did he authorize their disclosure. The e-mails were recovered and never became part of the public record. The privacy breach nevertheless caused a public scandal. The Human Resources and Information Technology departments fell under Mr. Amorosi's purview as DCAO, so he agreed to accept responsibility for the mistake.
62Mr. Amorosi deposed that his acceptance of responsibility for the e-mail disclosure, in circumstances where he was not personally involved in the mistake, enhanced his reputation because it [page381] was an honourable and principled thing to do. He received some feedback from colleagues to that effect. He points to an article published on the CBC website, which states that although Mr. Amorosi "didn't send the files himself", he was bearing ultimate responsibility as leader of the service area involved. He argues that the public was therefore aware of the circumstances of his departure from the City of Guelph and that his reputation and employability were not negatively affected by it.
63The motion record contains other news articles about the privacy breach, in which the incident is reported differently and in a manner that reflected more negatively on Mr. Amorosi. Several articles did not clarify that Mr. Amorosi was not personally involved in the e-mail disclosure. None of the articles in the record reported that he resigned out of principle. Rather, most of them implied that his employment was terminated for cause. For example, an article in the Guelph Mercury on February 9, 2017 reported that Mr. Amorosi was "fired" following an unintentional disclosure of personal information to a third party. His termination was also reported on national media outlets. For example, a Global News article stated that the e-mail "gaffe" led to the "removal" of Mr. Amorosi as DCAO.
64Mr. Barker argues that it is impossible to disentangle any reputational harm purportedly suffered by Mr. Amorosi as a result of his blog posts from the reputational damage that resulted from these news articles. The news articles about Mr. Amorosi's termination appear higher in the Google search results of Mr. Amorosi's name than the links to Mr. Barker's blog posts. Mr. Barker submits that members of the public -- especially in Guelph -- are far more likely to know Mr. Amorosi as the terminated DCAO who failed to keep their confidential information private than as the subject of a few blog posts.
65I agree with Mr. Barker that Mr. Amorosi must do more than demonstrate that he has experienced employment barriers since the impugned blogs were posted. He must present sufficient evidence to draw a causal connection between Mr. Barker's expression and the damages that he claims to have suffered: Pointes, at para. 90. The Court of Appeal for Ontario has noted that, "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": Pointes, para. 92. The Court of Appeal has also noted, however, that a s. 137.1 motion "was not the place to resolve the causal connection issue": Bondfield, para. 25.
66It is clear from the record that there are other potential causes for the apparent damage to Mr. Amorosi's reputation and [page382] employability. Mr. Amorosi will therefore face challenges at trial in proving causation on a balance of probabilities. However, he is not required to satisfy that standard of proof at this stage of the proceeding. In this motion, he is required to adduce sufficient evidence to draw a causal connection between Mr. Barker's posts and his employment barriers. For the reasons that follow, I find that Mr. Amorosi has done so.
67The fact that the blog posts could influence a prospective employer's vetting practices is made out by the uncontradicted evidence of Mr. Amorosi's first-hand experience as a reference for one of his colleagues. He was asked about some Guelph Speaks blog posts when he acted as an employment reference for the former CAO of the City of Guelph. He was contacted by an employer who was considering the former CAO's application and who expressed concern about disparaging remarks made by Mr. Barker regarding the candidate.
68Furthermore, readers' comments on the blog posts demonstrate damage to Mr. Amorosi's reputation and employability caused by Mr. Barker's articles. Of note is a sarcastic comment by "Tony" on Mr. Barker's August 1, 2016, post entitled, "It's time to close Mark Amorosi's city cheque book." The reader writes, "I do wish he would move on or be moved on. I think he is a lightning rod from the last administration and all that was wrong with it. He need not worry. I'm sure there are people at city hall past and present that will give him glowing letters of recommendations. Some other city would love to have him."
69Mr. Amorosi is asserting that he suffered significant non-monetary harm as well as pecuniary damages. He has led evidence about the negative impact of the impugned posts on his emotional and psychological health. Some of the evidence is in the nature of hearsay, which I have disregarded. There is no expert medical evidence in the motion record but there is little doubt that Mr. Amorosi has suffered stress and anxiety as a result of the personal attacks on his character.
70For all of the above reasons, I find that Mr. Amorosi has shown sufficient evidence, at this stage of the proceeding, to establish a causal link between the impugned blog posts and damages to which he may be entitled if his defamation claim succeeds at trial. I cannot say that the damages would necessarily be nominal. They might well be significant.
71I must therefore balance the public interest in permitting Mr. Amorosi to proceed with his claim against the public interest in protecting Mr. Barker's expression. 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, both play an [page383] important role in measuring the extent to which there is a public interest in protecting that expression in the balancing exercise under s. 137.1(4) (b). "Not all expression on matters of public interest serves the values underlying freedom of expression in the same way or to the same degree": Pointes, at para. 94. As the Court of Appeal for Ontario has ruled, "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": Pointes, at para. 94; Bondfield, at para. 27; Levant, at para. 22.
72A reasonable trier could conclude that Mr. Barker's blog posts do not contain deliberate falsehoods. Although some of his statements about Mr. Amorosi may reasonably be characterized as gratuitous personal attacks, they are not written with vile and offensive language. Rather, Mr. Barker's language is, for the most part, measured. It is neither obscene nor vitriolic. The impugned posts are therefore distinguishable from the type of expression that does not attract a strong public interest in protection.
73Furthermore, the impugned posts could reasonably be found to be motivated by political interests and a desire for accountability, rather than by personal animus. There is heightened public interest in protecting political speech, because it lies at the core of the values underlying the constitutional guarantee of freedom of expression: Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, [2004] S.C.J. No. 28, 2004 SCC 33, at para. 11.
74It is also relevant that this case involves a blogger who writes primarily about municipal politics in the context of a relatively small community. Mr. Barker's uncontested evidence is that the City of Guelph does not have a daily print newspaper. The evidence shows that the former Guelph Mercury newspaper closed down around January 2016. The Mercury Tribune maintains a website and publishes in print only twice a week.
75Journalism has undergone significant changes since the advent of the world-wide web. A large segment of the public has turned to the Internet and social media platforms as the primary sources by which they consume news. Mr. Barker gave uncontradicted evidence about the consequential changes in the industry that he has witnesses over his career (including as a journalist for the Toronto Star and the Guelph Mercury). He deposed that few independent community newspapers still exist today. Those that have survived have done so by increasing their content from wire services and other national newspapers, which target stories to the broadest possible audience. As a result, many newspapers, [page384] including community newspapers, focus their coverage on big-picture stories rather than on local issues. In these circumstances, bloggers like Mr. Barker can help fill a gap in publicly accessible news about local political issues. This contextual factor enhances the public interest in protecting Mr. Barker's expression.
76Mr. Amorosi argues that Mr. Barker's political engagement should not insulate him from liability for defamation. Mr. Amorosi submits that the impugned blog posts disclose a personal agenda, cloaked in political activism. He further submits that dismissing his action would send a message to bloggers everywhere that it is "open season on civil servants" and that false and defamatory statements can be posted on the Internet, with no effort to substantiate them, and with no fear of consequences.
77In my view, there are good arguments to be made on both sides of the balancing test required by s. 137.1(4)(b). The outcome of the balancing is a close call. Taking all of the relevant factors into consideration, I conclude that the harm suffered or likely to be suffered by Mr. Amorosi as a result of Mr. Barker's impugned expression is sufficiently serious that the public interest in permitting the proceeding to continue marginally outweighs the substantial public interest in protecting Mr. Barker's expression.
78Section 137.1 of the CJA was enacted to provide an expeditious means of identifying and dismissing purely strategic claims aimed at stifling expression on matters of public interest. Unlike SLAPP suits that "reek of the plaintiff's improper motives, claims of phantom harm and bullying tactics", this litigation does not have those hallmarks: Bondfield, at para. 28. The action raises a genuine controversy and should be tried on its merits.
Conclusion
79For all of the above reasons, Mr. Barker's motion to dismiss the action is denied.
Costs
80The parties are encouraged to attempt to settle the issue of costs. If they cannot agree, then brief written costs submissions may be made, not to exceed two pages (excluding bills of costs).
81Mr. Amorosi will have until August 30, 2019, to deliver his submissions to opposing counsel and to my attention at the courthouse in Brampton. Mr. Barker will have until September 13, 2019 to deliver his responding submissions. No reply submissions shall be made without leave.
Motion dismissed.
Notes
End of Document
Footnotes
- Subsection 137.2(1) of the CJA stipulates that an anti-SLAPP motion "may be made at any time after the proceeding has commenced".
- See subsection 137.2(2) of the CJA.
- See subsection 137.2(4) of the CJA.