Court File and Parties

COURT FILE NO.: CV-16-556352

DATE: 20190130

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183, NELSON MELO, JOHN EVANS, PATRICK SHERIDAN, PAUL GIOVINAZZO, CARLEE HORNER and RICARDO TEIXEIRA

Plaintiffs/Moving Parties/Responding Parties on Cross-Motion

– and –

DANIEL JOSEPH CASTELLANO

Defendant/Responding Party/Moving Party on Cross-Motion

COUNSEL:

Andrew Faith and Eric Brousseau, for the Plaintiffs/Moving Parties/Responding Parties on Cross-Motion

Andrew Ostrom, for the Defendant/Responding Party/Moving Party on Cross-Motion

HEARD: July 23, 2018; Written Submissions made October 19, 26 and November 5, 2018.

REASONS FOR JUDGMENT

DIETRICH J.

Overview

[1] This case involves an action in defamation initiated by several plaintiffs against the defendant, Daniel Joseph Castellano. Mr. Castellano responds with a motion to defeat the action on the basis that it is a strategic lawsuit against public participation (known as a “SLAPP”).

[2] The plaintiffs submit that a s. 137.1 (anti-SLAPP) motion cannot be brought at this point in the proceedings because the plaintiffs have moved for summary judgment. Should this court proceed to adjudicate the s. 137.1 motion, the plaintiffs submit that it fails on several grounds. First, the impugned expression does not qualify as expression on “matters of public interest”; second, the plaintiffs’ proceeding has substantial merit and the moving party has no valid defence; and third, the harm caused by the expression outweighs any public interest in that expression. Finally, the plaintiffs submit that the court should find in their favour on the summary judgment motion, and they seek both damages and a permanent injunction.

[3] Mr. Castellano submits that his s. 137.1 motion can be brought concurrently with the plaintiffs’ summary judgment motion, and that the plaintiffs’ proceeding should be dismissed under s. 137.1. On his view, the expression fulfills the requirements set out in s. 137.1: the impugned expression relates to a matter of public interest; the plaintiffs’ proceeding does not have substantial merit and Mr. Castellano has a valid defence; and, further, the public interest in Mr. Castellano’s expression outweighs the harm suffered or likely to be suffered by the plaintiffs.

[4] For the reasons that follow, I find that a s. 137.1 motion may be brought in response to a summary judgment motion. I also find that the impugned expression qualifies as an expression on a matter of public interest. However, I find that the public interest in Mr. Castellano’s expression does not outweigh the harm suffered by or likely to be suffered by the plaintiffs. Accordingly, Mr. Castellano's anti-SLAPP motion is dismissed and the plaintiffs are entitled to summary judgment in their action.

Facts

[5] Mr. Castellano was a member of the Labourers’ International Union of North America (sometimes referred to as LiUNA), Local 183. In 2014, he was hired to do pipeline maintenance, and was terminated for cause in the same year. Local 183 filed a grievance relating to his termination and an earlier disciplinary matter. One of the plaintiffs, John Evans, as General Counsel for Local 183, represented Mr. Castellano at the mediation relating to the grievance. Mr. Castellano was awarded a settlement that the mediator described as more than fair.

[6] In 2015, LiUNA expelled Mr. Castellano from the union for misconduct.

[7] Displeased with both the settlement and the expulsion, Mr. Castellano commenced a variety of proceedings against Local 183 and several of its representatives.

[8] In addition to Local 183, the individual plaintiffs in this action, each of whom has some relation to LiUNA, are:

• John Evans, General Counsel to Local 183;
• Nelson Melo, a member of Local 183 and president of Local 183;
• Patrick Sheridan, a member of Local 183 and executive board director of Local 183;
• Paul Giovinazzo, a member of Local 183 and union steward for Local 183;
• Ricardo Teixeira, a member of Local 183 and the sector coordinator for the East (Cobourg) sector of Local 183; and
• Carlee Horner, an administrative staff member of Local 183’s Cobourg office.

[9] When Mr. Castellano was unsuccessful in some of the proceedings, he turned to the internet. There he began releasing posts relating to his former employer, LiUNA, Local 183, and several of its representatives. He posted numerous videos with accompanying text on various social media platforms including YouTube, Facebook and Twitter. He also posted Google reviews.

[10] The plaintiffs allege that Mr. Castellano published a number of statements relating to Local 183 and the individual plaintiffs. The impugned expression, contained in online posts, included the following content, which the plaintiffs allege is defamatory:

• Local 183: Local 183 is referred to as “terrible”, “corrupt”, “despicable”, “evil”, “no good degenerate scum”, and a “vicious pit of snakes”; as having a “bad reputation for corrupt and deceitful behavior”, as being “famous” for its corruption, and as being responsible for “intimidation” and “bullying.” Local 183 is also said to be conducting “shady business”, “making up fabrications”, having its members followed and ruining lives; and described as the “Lying Intimidating Undermining Nazi Agency”; its representatives are “Lying Liuna mutts”; and the posts assert that “they will screw you and your family over large [sic] and try to keep it a secret.”
• Mr. Evans: Mr. Evans is referred to as a “bully”, a “liar”, a “snitch”, “intimidating”, “abusive”, and someone who “pushed and badgered” the author. Mr. Evans is accused of not representing the author or his grievance properly, of trying to cover up his mistakes with the union, and of trying to set the author up for an unfavourable outcome during mediation. Mr. Evans is further described as a “despicable and evil person” who “went postal” and one who is “bad news and has no business being in the legal field.” Mr. Evans is described as “a liar and bully pure and simple! … [he] is ultimately responsible for the majority of corrupt behavior, abuse of power and gestapo[-]like tactics bestowed upon me. … I filed a complaint with the LSUC about this despicable and evil person.”
• Mr. Giovinazzo: Mr. Giovinazzo is referred to as a “hothead”, a “bully”, a “loudmouth liar”, a “crackpot”, a “goof” and a “degenerate” who is “paranoid”. Mr. Giovinazzo is described as turning on the author like a “rabid dog”, “coaching the employer on how to railroad the union member”, and “selling out and backstabbing”. Mr. Giovinazzo is said to have “no business being a shop steward he is a disgrace not only to the union but to humanity as well.” Mr. Giovinazzo is accused of instigating workplace violence and being “there for the company” and not “representing [Mr. Castellano] faithfully.”
• Mr. Teixeira: Mr. Teixeira is referred to as a “bully”, a “snitch”, a “union thug”, a “liar”, “Ratcardo”, and a “turncoat”. He is accused of abusing his power and wasting hundreds of thousands of LiUNA Local 183’s membership dollars. Mr. Teixeira is described as someone who “is trying to cover up his dirty dealings”, and “tells more lies than he can count.” Mr. Teixeira is further accused, together with other union representatives, of having “screwed them [the members] over.”
• Mr. Melo: Mr. Melo is described as a “bullying mutt” who tried to “swindle” the author.
• Mr. Sheridan: Mr. Sheridan is accused of being “always on vacation at the members [sic] expense.”
• Ms. Horner: Ms. Horner is accused of making a “malicious call” to the police relating to Mr. Castellano’s attendance at the union hall.

[11] Mr. Castellano submits that even if the text accompanying the videos contains defamatory statements, the plaintiffs’ action unduly limits his expression on a matter of public interest and should therefore be dismissed.

Procedural History

[12] In response to the plaintiffs’ statement of claim, the defendant filed a statement of defence and brought a counterclaim for negligence, strict liability, malpractice, malicious intent, malicious prosecution, defamation and harassment, among other things. The counterclaim was struck without leave to amend. The plaintiffs bring this motion for summary judgment in their defamation action. The defendant opposes the motion and brings a cross-motion seeking a dismissal of the plaintiffs’ action pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, sometimes referred to as anti-SLAPP legislation.

[13] On August 30, 2018, after the motion and cross-motion were heard, the Ontario Court of Appeal released six decisions addressing s. 137.1 of the Courts of Justice Act. They are as follows:

• 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161 (“Pointes”);
• Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, 426 D.L.R. (4th) 1 (“Rabidoux”);
• Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, 23 C.P.C. (8th) 381;
• Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690;
• Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60 (“Platnick”);
• Veneruzzo v. Storey, 2018 ONCA 688, 23 C.P.C. (8th) 352 (“Veneruzzo”).

[14] In light of these rulings, the plaintiffs and Mr. Castellano were invited to make additional submissions and call further evidence. Both opted to file additional written submissions, all of which were submitted by November 5, 2018. No further evidence was called.

Issues

[15] The issues to be determined on the motion and cross-motion are as follows:

1. Can a s. 137.1 motion be brought concurrently with a motion for summary judgment?

2. If so, is Mr. Castellano successful on his s. 137.1 motion?

3. If not, are the plaintiffs successful on their motion for summary judgment?

Issue 1: Can a s. 137.1 motion be brought concurrently with a motion for summary judgment?

[16] The plaintiffs submit that a s. 137.1 motion is not available to Mr. Castellano once the plaintiffs have brought a motion for summary judgment. On the plaintiffs’ view, because s. 137.1 functions as a threshold proceeding that is designed to screen claims before they are heard on their merits, s. 137.1 has no application once the merits of the case are before the court.

[17] I cannot accept this submission for several reasons.

[18] First, the plaintiffs have not referred to any statutory authority in support of their position. Nothing in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 prevents Mr. Castellano from bringing a cross-motion in response to a summary judgment motion. On the contrary, summary judgment motions are often heard concurrently with cross-motions that may finally dispose of the proceeding: see for example the two motions for summary judgment heard in Royal Bank v. Cadillac Fairview/JMB Properties, 1995 CanLII 458 (ON CA), 21 O.R. (3d) 783, [1995] O.J. 472 (C.A.), or the stay/dismissal motion heard together with a summary judgment motion in Stone v. Polon (2006), 36 C.P.C. (6th) 64 (Ont. C.A.).

[19] Second, a plain reading of the Courts of Justice Act indicates that a s. 137.1 motion remains available after a plaintiff has moved for summary judgment. Section 137.2(1) reads as follows:

137.2(1): A motion to dismiss a proceeding under s. 137.1 shall be made in accordance with the rules of the court, subject to the rules of this section, and may be made at any time after the proceeding has commenced. [Emphasis added.]

[20] As reiterated by Doherty J.A. in Pointes, s. 137.2 provides that “[a] defendant may move at any time after the proceeding is commenced for an order dismissing the proceeding” (para. 38).

[21] These authorities clearly indicate that a s. 137.1 motion remains available to the defendant throughout the course of the proceeding, so long as it is made in accordance with the rules of the court. Accordingly, the fact that the plaintiffs have moved for summary judgment does not preclude Mr. Castellano from bringing a motion under s. 137.1.

[22] Third, the recent jurisprudence released by the Ontario Court of Appeal does not limit the availability of a motion under s. 137.1. Relying on Pointes, the plaintiffs note that a s. 137.1 motion is intended to be brought at an early stage of the proceeding. Further, the plaintiffs emphasize that Pointes draws a careful distinction between the test on summary judgment and a s. 137.1 motion. As stated by Doherty J.A, motion judges must not “approach the record as if it were … [a] summary judgment record” or treat a s. 137.1 motion as an “alternative means by which the merits of the claim can be tried” (paras. 73, 76). On the plaintiffs’ view, these remarks indicate that the time has passed for Mr. Castellano to bring a s. 137.1 motion in this proceeding.

[23] While I agree that the purpose and function of both motions are distinct, I do not read Doherty J.A.’s comments as restricting the availability of a s. 137.1 motion. The passages referred to by the plaintiffs describe the optimal function of s. 137.1 as an inexpensive, preliminary screening device to identify unmeritorious claims. While a s. 137.1 motion may often prove most effective when brought at an early stage of the proceedings, Pointes did not hold that a s. 137.1 motion cannot be brought at a later stage of the proceedings. Such an interpretation would oust the clear statutory wording of s. 137.2, which indicates that a s. 137.1 motion may be brought “at any time.”

[24] I am also attentive to the distinguishing features of a summary judgment and a s. 137.1 motion as set out in Pointes. However, I do not read Pointes to hold that the two motions cannot be heard concurrently. The statements relied upon by the plaintiffs must be considered in context. In paragraphs 73-78, Doherty J.A sought to differentiate between the merits analysis applied on a summary judgment motion and the “much more limited” merits analysis required by s. 137.1(4)(a) (para. 78). Under s. 137.1(4)(a), motions judges must refrain from making findings of credibility, drawing inferences from competing primary facts, and “taking a ‘deep dive’ into the ultimate merits of the claim”: Pointes, at para. 78. So long as the test applied on each motion remains distinct, however, Pointes does not prevent a motions judge from hearing a s. 137.1 motion and a summary judgment motion on the same evidentiary record if judicial expediency so requires.

[25] Finally, disallowing Mr. Castellano from bringing a s. 137.1 motion once the plaintiffs have moved for summary judgment would run counter to the spirit of s. 137.1. As noted in Pointes at para. 37, the purpose of s. 137.1 is “to promote free expression on matters of public interest by ‘discouraging’ and ‘reducing the risk’ that litigation would be used to ‘unduly’ limit such expression.” To hold that a s. 137.1 motion is unavailable to the defendant once the plaintiff has moved for summary judgment would limit the utility of s. 137.1. Section 137.1 is a legislative response to SLAPP, which often involves a “financial or power imbalance that strongly favours the plaintiff”: Platnick, para. 99. To bar a s. 137.1 motion once a summary judgment has been brought would incentivize plaintiffs to swiftly amass the resources to move for summary judgment in anticipation of a s. 137.1 motion. As a result, some claims that would have been dismissed under s. 137.1 may proceed to determination on their merits, so long as the plaintiff “beats the defendant to the punch”, so to speak. Such an outcome would run counter to the purpose of s. 137.1, which seeks to promote and protect freedom of expression on matters of public interest.

[26] For the foregoing reasons, I conclude that Mr. Castellano’s s. 137.1 motion can be heard concurrently with the plaintiffs’ motion for summary judgment. I will proceed by adjudicating Mr. Castellano’s s. 137.1 motion.

Issue 2: Is Mr. Castellano successful on his s. 137.1 motion?

[27] Mr. Castellano submits that the impugned expression relates to a matter of public interest and that the plaintiffs, in seeking summary judgment, including permanent injunctive relief, are moving to unduly limit his expression on such matters. Accordingly, Mr. Castellano seeks dismissal of the plaintiffs’ action pursuant to s. 137.1 of the Courts of Justice Act.

[28] To succeed on a s. 137.1 motion, Mr. Castellano must first discharge his burden under s. 137.1(3). That section reads as follows:

[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.

[29] If the expression is found to relate to a matter of the public interest, the inquiry moves on to s. 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.

[30] For the reasons that follow, I find that although Mr. Castellano has established that his expression relates to a matter of public interest, the plaintiffs have discharged their burden under s. 137.1(4). Accordingly, Mr. Castellano’s s. 137.1 motion cannot succeed.

Section 137.1(3): The Threshold Requirement

[31] To discharge his onus under s. 137.1(3), Mr. Castellano must satisfy the court that (i) the proceedings arise from an expression made by the defendant, and (ii) the impugned expression relates to a matter of public interest: Pointes, para. 51. The word “satisfies” indicates that the defendant must establish both criteria on a balance of probabilities: Pointes, para. 51.

[32] Mr. Castellano freely admits that he created most of the posts that constitute the impugned expression in this defamation action. I am satisfied that the authorship requirement under s. 137.1(3) is fulfilled.

[33] Mr. Castellano must also establish that his expression relates to a matter of public interest. The definition of “public interest” was considered in the Supreme Court of Canada case, Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 (“Grant”). According to Grant, the public interest is not confined to publications on government and political matters, but could involve other matters in which the public has a genuine stake, such as science, the arts, the environment, religion and morality: para. 106. The subject need not attract the interest of a large segment of the public; it is enough that some segment of the community would have a genuine interest in receiving information on the subject: para. 102.

[34] Mr. Castellano submits that Local 183 is a large democratic organization with approximately 56,000 members. As a member, he had a right to participate in the union’s democratic decision-making processes, including union elections. On his view, voicing opposition to Local 183’s leadership is an example of member participation as is voicing dissatisfaction with the union’s representation of its members.

[35] Mr. Castellano submits that the defamatory posts address the governance of Local 183 and the quality of the representational efforts it renders on behalf of one of its members. He asserts that such issues are valid matters of public interest of significance not only for the members of Local 183 but for the community as a whole. Accordingly, he submits that the action must be dismissed unless the plaintiffs are able to satisfy the tests set out at s. 137.1(4) of the Act.

[36] By contrast, the plaintiffs submit that the posts do not relate to a matter of public interest. Instead, they represent the public airing of very personal grievances. According to the plaintiffs, the posts constitute generalized attacks that are extreme, vitriolic, and removed from issues of Union governance. Relying on Veneruzzo, the plaintiffs submit that private disputes or thinly veiled personal attacks do not constitute matters of public interest. They also note that the impugned expression largely post-dates Mr. Castellano’s expulsion from the Union, when he was no longer entitled to participate in the Union’s political life or elections.

[37] I am satisfied that Mr. Castellano’s expression relates to a matter of public interest. In Pointes, Doherty J.A. emphasizes that the definition of “public interest” must be construed broadly so as to conform to the purposes of s. 137.1. At this threshold stage, the motions judge is not to consider the merits or manner of the expression, or the motive of its author: para. 65. Finally, in assessing the public interest, the court must consider the subject matter of the publication as a whole and not scrutinize the allegedly defamatory statements in isolation: Grant, at para. 101; Pointes, at para. 60.

[38] The fact that Mr. Castellano’s posts contain derogatory, malicious, and false statements does not disqualify the expression from meeting this threshold public interest test under s. 137.1(3). As stated by Doherty J.A., “an expression that relates to a matter of public interest remains so if the language used is intemperate or even harmful to the public interest”: Pointes, at para. 55. Similarly, according to Platnick, “an expression may be defamatory, false, and malicious and still relate to a matter of public interest:” para. 38.

[39] As noted above, the words Mr. Castellano used to refer to the plaintiffs – such as “degenerate”, “rabid dog”, and “Nazi” – must be considered in the broader context of the expression. Other statements made by Mr. Castellano address the quality of representation that he felt he was provided by the Union. For example, he states, “[the] Union has not been representing me to the best of their ability”; “[the] Union is not pulling their weight”; “[members who file a grievance with Local 183] do so at their own peril”; “[Mr. Evans is] trying to cover up mistakes within the union,”; and “[Mr. Giovinazzo] hasn’t represented [Mr. Castellano] faithfully.”

[40] As stated in Pointes, at para. 65, “an expression may relate to more than one matter. If one of those matters is a ‘matter of public interest’, the defendant will have met its onus under s. 137.1(3).” While the posts may be understood as the public airing of very personal grievances, they may also be construed as addressing the Union’s governance and the suitability of some of the plaintiffs to act as union representatives. The fact that Mr. Castellano is no longer a member of that union does not bring his comments regarding the Union outside the scope of s. 137.1. I accept Mr. Castellano’s submission that this characterization of the expression has significance for members of Local 183 as well as the community at large. This is sufficient to ground a finding that Mr. Castellano has met his onus under s. 137.1(3).

Section 137.1(4)(a): Substantial Merit and No Valid Defence

[41] Because Mr. Castellano has met his burden under s. 137.1(3), the onus shifts to the plaintiffs to prove that the proceeding should be dismissed under ss. 137.1(4)(a) and (b). For the reasons below, I conclude that the plaintiffs have succeeded and the s. 137.1 motion should be dismissed.

[42] To discharge their onus under s. 137.1(4)(a), the plaintiffs must establish that there are grounds to believe that:

i. The plaintiffs’ defamation action has substantial merit; and

ii. Mr. Castellano has no valid defence to the action.

The word “satisfies” indicates that the balance of probabilities is the applicable standard of proof: Pointes, at para. 68.

[43] As noted above, the inquiry into whether the plaintiffs’ claim has “substantial merit” under s. 137.1(4)(a)(i) is separate and distinct from the test for summary judgment. Care must be taken to ensure that the court does not approach the evidentiary record as if it were a summary judgment record: Pointes, at para. 77. According to para. 80 of Pointes, 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 the evidence, which could lead a reasonable trier to conclude that the claim has a real chance of success.

[44] I am satisfied that the plaintiff’s case has substantial merit. They have demonstrated that their defamation claim is legally tenable and supported by evidence. As stated in Grant at para. 28, to succeed in proving defamation, the plaintiffs must establish that:

i. The posts were defamatory;

ii. The posts in fact referred to the plaintiffs; and

iii. The posts were published.

[45] It could reasonably be said that the posts in this case are defamatory. For expression to be defamatory, it would “tend to lower the plaintiff’s reputation in the eyes of a reasonable person”: Grant, at para. 28. I have little doubt that statements – which describe LiUNA as having a “reputation for corrupt and deceitful behavior”, and describe certain representatives as “bull[ies]” and “liar[s]” – would lower the plaintiffs’ reputations. The expressions would lead any reasonable person to question an individual plaintiff’s honesty and integrity, as well as the integrity of LiUNA as a whole.

[46] Prongs (ii) and (iii) of this test are easily fulfilled. As noted above, Mr. Castellano has freely admitted to authoring most of the impugned posts in this action, which were disseminated online through various public social media platforms. There is no dispute that the posts refer to the plaintiffs, who are referenced explicitly by name (or in certain cases, by derogatory but identifiable nicknames such as “Ratcardo”).

[47] Mr. Castellano has raised three defences in his materials: the defence of truth, fair comment, and qualified privilege. I find that there are reasonable grounds to believe that none of these defences would be available to Mr. Castellano. The truth defence may not be available because there are grounds to believe that the allegations of misconduct cannot be substantiated, and that several of the defamatory terms used by him in his posts cannot be proven true (e.g., the use of “gestapo-like tactics”).

[48] The defence of fair comment and qualified privilege may also be unavailable to Mr. Castellano because there are reasonable grounds to believe that his expression was motivated by malice. Any defence of fair comment or qualified privilege is defeated by malice: Boland v. Globe & Mail (The), 1961 CanLII 162 (ON CA), [1961] O.R. 712 (C.A.) (“Boland”) at para. 63; Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 at para. 144. As noted in Hill, malice may refer to spite, ill-will, or “any indirect motive or ulterior purpose” (para. 145). It may be inferred from the words used in the defamatory statements themselves or extrinsic evidence: Leenen v. Canadian Broadcasting Corp., 2000 CanLII 22380 (ON SC), 48 O.R. (3d) 656, para. 143. The intensity and duration of the posts, as well as the extreme language used within them, are reasonably capable of supporting Mr. Castellano’s malicious intent to harm the reputations of the plaintiffs in retaliation for their treatment of him.

[49] For the reasons noted above, it is evident that the plaintiffs’ action has substantial merit and there are reasonable grounds to believe that Mr. Castellano has no valid defence under s. 137.1(4)(a).

Section 137.1(4)(b): The Public Interest Hurdle

[50] Section 137.1(4)(b) reads as follows:

A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(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.

[51] Doherty J.A. states that this balancing test “is the heart of Ontario’s anti-SLAPP legislation.” He notes that at this stage, certain technically valid causes of action may be terminated under s. 137.1(4)(b) because they come at too great a cost to the public interest in promoting and protecting freedom of expression: Pointes, para. 86.

[52] To discharge their burden under s. 137.1(4)(b), the plaintiffs must satisfy the court that the harm caused to them by the defendant’s expression is “sufficiently serious” that the public interest engaged in allowing the plaintiffs to proceed with the claim outweighs the public interest in protecting the defendant’s freedom of expression: Pointes, para. 87.

Public Interest in the Defendant’s Expression

[53] The plaintiffs submit that the public interest in the expression is not apparent on its face. On their view, the posts include falsehoods, gratuitous personal attacks, and vulgar or offensive language. By contrast, Mr. Castellano submits that there is a heightened importance to the impugned expression in this case because it relates to a union, its elected representatives, and the quality of membership and representation provided by the union.

[54] I find that the public interest in Mr. Castellano’s expression is low. As stated at para. 94 of Pointes, under s. 137.1(4)(b), the quality of the expression and motivation of the speaker play an important role in measuring the extent to which there is a public interest in protecting the impugned expression. The public interest in protecting speech that contains “deliberate falsehoods, gratuitous personal attacks, or vulgar and offensive language” will be less than speech that contains the same message without the lies, vitriol, and obscenities: Pointes, para. 94.

[55] There is little doubt that the posts in this case involve gratuitous personal attacks as well as vulgar and offensive language. Further, taken in their entirety, the posts do not address the governance or leadership of Local 183 in any constructive or cogent way. Based on Mr. Castellano’s posts, an interested union member would have no reliable basis for apprehending any specific deficiencies in the union’s governance or ineffective leadership. While some members might come to the conclusion that Mr. Castellano was not treated fairly based on what he writes, they would have no genuine basis for determining how the perceived unfairness came about. The posts are, in the main, highly personal attacks on a number of individuals, made by a disgruntled union member, who appears to be carrying out a personal vendetta against particular persons associated with Local 183. Accordingly, I find that these posts in no way provide a useful platform to engage in a debate on the governance of Local 183 or that any member would find the posts helpful in deciding how to vote in an election of union representatives.

Harm Suffered by the Plaintiffs

[56] The limited public interest in this speech must be balanced against the harm suffered by the plaintiffs. The plaintiffs submit that they have suffered harm to their reputations as a result of Mr. Castellano’s posts. Certain plaintiffs, like Mr. Evans, a lawyer, and Mr. Melo, the president of Local 183, submit that they are particularly susceptible to reputational harm given the nature of their profession or position and the central importance of a union’s duty of fair representation. In addition, the plaintiffs submit that the minutes of settlement for the mediation of Mr. Castellano’s grievance dated December 4, 2014 included a clear and direct admission that Mr. Castellano “ha[d] been represented by the Union at all material times in a fair and proper fashion.” Accordingly, they assert that a component of the harm suffered by the plaintiffs is the absence of finality in their dealings with Mr. Castellano.

[57] By contrast, Mr. Castellano submits that the harm that the plaintiffs allege to have suffered is vague and unsubstantiated. On his view, the plaintiffs have failed to provide a basis upon which the court can make some assessment of the harm done or likely to be done to the plaintiffs by the impugned expression.

[58] When assessing the plaintiffs’ reputational harm, courts have recognized that reputation has fundamental importance to the individual, and has inherent value that extends beyond the monetary value of a claim: Pointes, para. 88; Hill, para. 107. This is especially so here, given the central importance of the union’s duty of fair representation and the professional reputations of the union’s counsel and elected representatives.

[59] As explained in Pointes, at para. 88, harm under s. 137.1(4)(b) will usually be measured primarily, although not exclusively, by reference to monetary damages, special or general, suffered by the plaintiff as a result of the defendant’s expression.

[60] In this case, the plaintiffs largely rely on general damages to substantiate harm. The Ontario Court of Appeal has confirmed that general damages, which are assumed in the case of defamation, should be considered under the s. 137.1(4)(b) balancing test: Rabidoux, at paras. 44-45. General damages in defamation may be nominal or substantial: see Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, loose-leaf, 2d ed., vol. 8 (Toronto: Carswell, 1999), at pp. 25-47. Doherty J.A. has held that nominal general damages have little impact on the balancing test under s. 137.1(4)(b): Fortress, para. 46. However, it is possible to find that general damages that are greater than nominal may have a greater impact on the s. 137.1(4)(b) analysis.

[61] The plaintiffs’ affidavit evidence of harm in this case is not strong. The evidence of Mr. Evans, which is relied upon by the plaintiffs, highlights the importance of the plaintiffs’ reputations, and indicates that several Union staff, members, and representatives have come across Mr. Castellano’s posts. There is some evidence to indicate that Mr. Castellano’s posts were viewed by a significant number of people. Mr. Evans deposes that certain members, staff, representatives, and executive board members indicated to him that they came across Mr. Castellano’s posts. However, none of these observations is directly tied to evidence that the plaintiffs suffered damage as a result of Mr. Castellano’s expression.

[62] Despite these shortcomings, the form and content of the posts and the circumstances surrounding them point to an award of general damages that is more than nominal. In respect of Mr. Evans, Mr. Giovinazzo, Mr. Teixeira and Mr. Melo, the expression casts serious aspersions upon their individual characters. I accept that these plaintiffs are particularly susceptible to reputational harm, considering their professions and positions, their duties of fair representation and professional integrity as representative of LiUNA. Local 183 is equally susceptible to reputational harm.

[63] In addition, Mr. Castellano’s potential malice may be considered an aggravating factor when assessing the quantum of general damages: see Daboll v. DeMarco, 2011 ONSC 1, 81 C.C.L.T. (3d) 145 at paras. 54-55; and Focus Graphite Inc. v. Douglas, 2015 ONSC 1104 (“Focus”) at para. 54. Accordingly, despite the limited affidavit evidence, more than nominal general damages are likely called for in this case.

[64] In addition to asserting reputational harm, the plaintiffs submit that they have suffered damages in the form of a lack of finality in their dealings with Mr. Castellano. As previously noted, the minutes of settlement dated December 4, 2014 included a clear and direct admission that Mr. Castellano “ha[d] been represented by the Union at all material times in a fair and proper fashion.” Despite this admission, Mr. Castellano has since made several online postings that express his dissatisfaction with the representation he received, leading up to and during the mediation of his grievance, from Local 183, Mr. Evans, Mr. Melo, Mr. Giovinazzo, and Mr. Teixeira.

[65] In Pointes at para. 120, Doherty J.A confirms that a reasonable expectation of finality in litigation is capable of grounding a finding of harm under s. 137.1(4)(b). Although Mr. Castellano’s admission does not explicitly release the plaintiffs from any subsequent litigation with Mr. Castellano, it could give rise to the plaintiffs’ reasonable expectation that their dealings with Mr. Castellano in respect of his grievance were at an end. However, as noted in Pointes, the plaintiff’s reasonable expectation of finality is dependent entirely on the correctness of its interpretation of the parties’ agreement (para. 120). In this case, the plaintiffs’ reasonable expectation of finality is dependent upon the court’s interpretation of Mr. Castellano’s admission. Further, the defamatory content relating to incidents that took place after the mediation – such as Mr. Castellano’s expulsion from the Union – would likely fall outside the scope of his admission on December 4, 2014. However, I am prepared to accept that the costs incurred by the plaintiffs to remove the public posts relating to the mediation of Mr. Castellano’s grievance likely have a reasonable chance of qualifying as harm arising from the lack of finality in the plaintiffs’ dealings with Mr. Castellano.

[66] Taken together, the potential damages arising from Mr. Castellano’s admission on December 4, 2014, combined with the general damages that are exacerbated by malice, amount to harm that is more than nominal. The public interest in allowing the plaintiffs to proceed with their claim must be weighed against the low public interest in Mr. Castellano’s speech, which contains gratuitous attacks against the plaintiffs and is offensive in tone. On balance, I conclude that the harm suffered by the plaintiffs outweighs the public interest in protecting Mr. Castellano’s expression.

[67] In summary, although I am satisfied that the defendant has met his onus under s. 137.1(3), I am also satisfied that the plaintiffs have met their onus under s. 137.1(4). Accordingly, I am not prepared to dismiss this action under s. 137.1. Mr. Castellano’s s. 137.1 motion is hereby dismissed.

Issue 3: Are the plaintiffs successful on their motion for summary judgment?

[68] Having dismissed the s. 137.1 motion, I shall now proceed to consider the plaintiffs’ summary judgment motion. For the reasons below, I conclude that the plaintiffs are successful on their motion for summary judgment.

[69] Having considered the evidence filed on these motions and the submissions of counsel, I conclude that summary judgment is appropriate in this case. Most of the essential facts are not in dispute. I am able to make the necessary findings of fact, apply the law to the facts, and make a determination on the merits. I am satisfied that there is no genuine issue requiring a trial with respect to the plaintiffs’ claim or the defendant’s defence.

[70] Rule 20 of the Rules of Civil Procedure provides that the court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or a defence. The Supreme Court in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 held at para. 49:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case where the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[71] The fact-finding powers set out under rules 20.04(2.1) and (2.2) include weighing the evidence, evaluating the credibility of a deponent, and drawing a reasonable inference from the evidence. These powers are presumptively available to me; they are only unavailable where it is in the interest of justice for such powers to be exercised only at trial.

[72] The court should first determine whether there is a genuine issue requiring a trial based only on the evidence in the motion record, without using the fact-finding powers set out in rule 20.04(2.1) and (2.2). The analysis is to be done on a review of the factual record. Summary judgment should be granted if there is sufficient evidence to fairly and justly adjudicate the dispute and if summary judgment would be a timely, affordable and proportionate procedure: Hryniak, at para. 66. The evidence considered by the court on a summary judgment motion need not be equivalent to that which would be available at trial but must be such that the judge is confident that the dispute can be fairly resolved: Hryniak, at para. 57.

[73] Rule 20.02(2) provides that a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit or other evidence specific facts showing that there is a genuine issue for trial. Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried. A court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 at paras. 26-27, aff’d 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No. 97.

Defamation

[74] As noted, to succeed in proving defamation, the plaintiffs must establish that: (i) the posts were defamatory; (ii) the posts in fact referred to the plaintiffs; and (iii) the posts were published. Once these elements are established, the onus shifts to Mr. Castellano to advance a valid defence to the defamation: Grant, paras. 28-29.

i. Were the posts defamatory?

[75] There can be little doubt that the posts published on the internet were defamatory. To prove defamation, a plaintiff must show that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person or expose the plaintiff to hatred, contempt or ridicule: Botiuk v. Toronto Free Press Publication Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3 at para. 62.

[76] In Rutman v. Rabinowitz, 2018 ONCA 80, 420 D.L.R. (4th) 310, leave to appeal to SCC refused, [2018] S.C.C.A. No. 130, the Ontario Court of Appeal stated at para. 66 that the injurious effects of defamatory statements regarding a professional are particularly acute. In Hill, which concerned libelous statements about a young lawyer, the Supreme Court of Canada observed, at para. 177, that “[a]nything that leads to the tarnishing of a professional reputation can be disastrous for a lawyer”. Citing Hill, the Ontario Court of Appeal in Rutman noted at para. 66 that the importance of a reputation for integrity and trustworthiness is not confined to lawyers, and also applies to other professions and callings.

[77] Union officials are expected to act honestly and with integrity in the pursuit of the union members’ best interests: O’Neal v. Pulp, Paper & Woodworkers of Canada, 1974 CanLII 1815 (BC SC), [1974] B.C.J. No. 522, (B.C.S.C.) (“O’Neal”) at para. 10. A reasonable person would understand that words suggesting that a union official acted dishonourably, lacked integrity, or acted contrary to the interests of those he/she was elected to serve would, if untrue, be defamatory: O’Neal at para 11. A union has a reputation to uphold and statements which cast aspersions upon that reputation may be actionable: Focus, para. 61.

[78] The aspersions cast on Mr. Evans, a lawyer, and Mr. Melo, the president of Local 183, Mr. Sheridan, a director of Local 183, Mr. Giovinazzo, a union steward, and Mr. Teixeira, a sector coordinator for Local 183, have the potential to be very damaging to their professional reputations. Similarly, Local 183 attracts new members based on its reputation for representing its members’ interests at the bargaining table and by pursuing grievances on behalf of its members. Its fundamental obligation is to fairly represent its members. It follows that Local 183 needs to be seen to be fairly representing its members. As with many organizations, its reputation is critical to its brand as well as its ability to successfully bargain on behalf of its members and lobby all levels of government. I am satisfied that the language of the posts would lower the reputation of each plaintiff in the eyes of any reasonable person.

ii. Do the posts refer to the plaintiffs?

[79] I am satisfied that the posts refer to the plaintiffs. Local 183 and each individual plaintiff is mentioned by name, or nickname, and is easily identifiable in the context of the posts.

iii. Were the posts published by the defendant?

[80] I find that all of the impugned posts were published by the defendant. Mr. Castellano freely admits that he posted the YouTube videos that are the subject of this action. Mr. Castellano admitted in his pleadings that he first uploaded a video relating to his dispute with Local 183 to a YouTube channel on November 26, 2014.

[81] Mr. Castellano confirmed that he created YouTube channels named “Dan Cast”, “Jon Voigt”, “Tricky Ricky” and “Daniel Castellano.” He admitted that he created the “Tricky Ricky” channel once YouTube blocked the content on two other channels he had created and that he uploaded previously blocked videos on another channel. He admitted that he uploaded the videos to YouTube channels from his residence in Bowmanville, Ontario and that he disseminated the links to the Law Society of Upper Canada and the Ontario Labour Relations Board, among others, and that he referred people, including fellow employees, to his YouTube channels. He also admitted to using other social media platforms (e.g., Twitter, Facebook, Google) to spread his views of the plaintiffs.

[82] Mr. Castellano denies the following allegations:

i. posting videos to the website Gseovid;

ii. posting a Google review under the name “Amanda Teixeira”;

iii. posting a Google review under the name “Lying Intimidating Undermining Nazi Agency”; and

iv. creating the YouTube channel “Lying Intimidating Nazi Agency.”

[83] However, the content of these posts is largely duplicated in the posts that Mr. Castellano has admitted to posting and contain similar language. A well-qualified expert forensic linguist, Gerald R. McMenamin, a Professor Emeritus, at California State University, reviewed the “Lying Intimidating Undermining Nazi Agency” Google review of Local 183. After analyzing the similarities in style between the alleged Google review and the other communications that Mr. Castellano admitted to authoring, Professor McMenamin opined that it is more likely than not that Mr. Castellano is the author of that review. Furthermore, I note that this post refers to John Evans, Graham Williamson and Paul Cavalluzzo, all of whom were named in Mr. Castellano’s counterclaim and several other legal proceedings initiated by him. Mr. Castellano did not proffer any expert evidence to counter the opinion of Professor McMenamin. Using the fact-finding powers available to me, I find as a fact that the Google review of Local 183 was posted by Mr. Castellano.

[84] There is evidence to suggest that Mr. Castellano may also be the author of the postings to the Gseovid website. The Gseovid posts largely duplicate the videos that Mr. Castellano admitted to having posted on YouTube and contain much of the same language used by Mr. Castellano in the YouTube posts. However, I accept Mr. Castellano’s submission that it is possible that Gseovid republished the videos posted to YouTube, unbeknownst to him.

[85] There is also evidence to suggest that Mr. Castellano may be the author of the Amanda Teixeira review. This review, which purports to be written by Mr. Teixeira’s spouse, makes reference to comments made by Ricardo Teixeira that relate to Local 183. Mr. Castellano submits that he did not post this review as he would not have known that the first name of Mr. Teixeira’s wife is Amanda. However, this post includes the terms “despicable”, “corrupt”, “evil”, and “screwed over”, all of which were used in posts that Mr. Castellano admits to have published with regard to his dealings with Local 183.

[86] Despite the evidence that points to the likelihood that Mr. Castellano published the Gseovid posts and the Amanda Teixeira review, given all of the other posts that Mr. Castellano has admitted to publishing, as well as the finding I have made relating to the “Lying Intimidating Undermining Nazi Agency” Google review, I conclude that it is not necessary for me to make a finding with respect to the Gseovid videos and Google review purportedly authored by Amanda Teixeria.

Issue 3: Does Mr. Castellano have a valid defence to any defamatory posts?

[87] Having established that the posts were defamatory, that they refer to the plaintiffs and that they were published, the onus shifts to Mr. Castellano to advance a valid defence. Based on the evidence I find that Mr. Castellano has no valid defence.

[88] I find that the defences of truth of the statements made, fair comment and qualified privilege are not available to Mr. Castellano. Most of the defamatory terms used by him in his posts cannot be proven true (e.g., the use of “gestapo-like tactics”). The posts include claims and serious allegations of misconduct that have not been and cannot be substantiated. For example, in the commentary accompanying the video showing an exchange between Mr. Castellano and Mr. Giovinazzo, Mr. Castellano states that Mr. Giovinazzo is getting ready to punch him in the face. There is no evidence of any such action in the actual video. Mr. Castellano admits that his recordings are his only source of evidence.

[89] I find that the posts are not fair comment. As noted in Grant at para 31, the defendant claiming fair comment must satisfy the following test:

1. The comment must be on a matter of public interest;
2. The comment must be based on fact;
3. The comment, though it can include inferences of fact, must be recognizable as comment; and
4. The comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?

Even though the comment may satisfy the objective test, the defence can be defeated if the plaintiff proves that the defendant was actuated by malice: Grant, para. 31.

[90] As noted above, some of Mr. Castellano’s comments relate to a matter of public interest, being fair representation by a union of its members. However, the comments are not based on fact; they are not recognizable as comment; and Mr. Castellano could not honestly express the opinion on the proved facts: Grant, para. 31.

[91] Any defence of fair comment in this case would, in any event, be defeated by what I conclude amounts to malice on the part of Mr. Castellano: Boland, para. 63. The intensity and duration of the posts evidence Mr. Castellano’s malicious intent to harm the reputations of the plaintiffs in retaliation for their treatment of him. I find that the posts were actuated by spite and ill-will towards the plaintiffs as opposed to a well-meaning desire to inform members of Local 183 of possible weaknesses in the union’s governance or management. The posts manifest personal attacks levelled at particular individuals and criticism of LiUNA generally. The evidence is that Mr. Castellano has made approximately 110 postings of nearly 60 videos under at least eight different aliases to at least three popular internet platforms. He has also used Google as a means of conveying his views of the plaintiffs. Malice may be inferred from the words used in the defamatory statements themselves or from extrinsic evidence such as the conduct of the defendant before and after the defamatory statements were published: Leenen v. Canadian Broadcasting Corp., 2000 CanLII 22380 (ON SC), [2000] 48 O.R. (3d) 656 (S.C.) at para. 143, aff’d 54 O.R. (3d) 612 (C.A.), leave to appeal to SCC refused [2001] S.C.C.A. No. 432. Mr. Castellano admits to having surreptitiously recorded his interactions with a number of the plaintiffs. The video evidence shows that Mr. Castellano deliberately goads the plaintiffs into making statements or comments that they might well not have made had they not been agitated or frustrated by both his relentless questioning and his failure to be forthright when asked whether he was recording their conversations.

[92] I am not persuaded that the defence of qualified privilege is of assistance to Mr. Castellano in this defamation action. He submits that he had a duty to communicate to concerned members of the public his views regarding the quality of Local 183’s representational effort. However, at the time he made the posts, he had no affiliation with LiUNA that could support a duty to communicate his personal experience with the plaintiffs. It is likely that the general public would have little interest in Mr. Castellano’s his ongoing dispute with his former employer and union.

Damages and a Permanent Injunction

[93] Once the elements of defamation are established and no defence is found to apply, general damages are presumed without proof of actual injury: Focus, para. 54. General damages are intended to provide comfort for personal distress or to vindicate one’s reputation, including one’s business reputation: Focus, para. 56.

[94] Aggravated damages are awarded where the defendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff: Hill, para. 190.

[95] Punitive damages may be awarded in defamation actions to punish the defendant and deter others from acting in a similar manner and where the combined award of general and aggravated damages is insufficient: Hill, para. 196.

[96] Courts have recognized that the “pernicious” effect of internet defamation should be examined when assessing damages: Rutman, para 68. The Court of Appeal stated in Barrick Gold v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416 at paras. 31 and 34:

Communication via the Internet is instantaneous, seamless, inter-active, blunt, borderless and far-reaching.

Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility.”

[97] For the reasons given above, I find that Mr. Castellano was motivated by malice. It would be difficult for the defamed professionals to measure the effect of these defamatory statements on their reputations.

[98] Notwithstanding their entitlement to damages, the plaintiffs do not seek a specified sum as damages. Their focus is on injunctive relief and they seek a permanent injunction. Permanent injunctions are now made more consistently where publication is via the internet, where defendants of little or no means, and who may be difficult to identify and serve, have a broad ability to publish seriously damaging untruths about others: Motoretta Inc. v. Twist & Go Power Sports Inc., 2014 ONSC 2469, at para. 76.

[99] As stated in Rainy River (Town) v. Olsen, 2017 ONCA 605, 6 C.P.C. (8th) 1 at para. 5, citing Astley v. Verdun, 2011 ONSC 3651, 106 O.R. (3d) 792 at para. 21, permanent injunctions are awarded in the following circumstances:

Permanent injunctions have consistently been ordered after findings of defamation where either: (1) there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that he is liable to the plaintiff for defamation; or (2) there is a real possibility that the plaintiff will not receive any compensation, given that enforcement against the defendant of any damage award may not be possible [citations omitted].

[100] Despite the plaintiffs’ concerted efforts to have Mr. Castellano’s defamatory posts about them removed from the internet, Mr. Castellano has persisted in his efforts to publish defamatory statements. It is telling that Mr. Castellano has threatened that if the posts were removed from YouTube, he would re-upload the same videos and that new channels would be created at a 3:1 ratio. The fact that Mr. Castellano fabricated a reason to attend at Mr. Evans’ personal residence, when he had no legitimate purpose to go there, is further evidence of the lengths that Mr. Castellano is prepared to go to continue his campaign of harassment of the plaintiffs. At a Trial Board hearing regarding Mr. Castellano’s conduct, the Trial Board found that Local 183’s staff feared for their safety. The Trial Board expressed concern that Mr. Castellano’s conduct would only escalate. In light of Mr. Castellano’s persistence and his threat to re-post videos and text that have been removed, the likelihood of further publication of defamatory posts naming the plaintiffs is high. It is doubtful that Mr. Castellano would be deterred in his posting activities by monetary damages alone.

Disposition

[101] The plaintiffs are entitled to summary judgment in this action.

[102] I make no award for general, aggravated or punitive damages. Mr. Castellano has pleaded that he is destitute and has been largely unemployed since 2014. Enforcement of a damages award by the plaintiffs may not be possible.

[103] The plaintiffs are entitled to permanent injunctive relief on the following terms:

1. The defendant shall take all necessary steps to remove all audio and video recordings, and written statements, of or about any and all of the plaintiffs, from the internet or any other location in which they are accessible to the public and to destroy all such audio and video recordings and written statements within seven days of the release of these reasons.

2. Immediately following those seven days, the defendant shall provide, in writing, to counsel for the plaintiffs, proof of all steps taken to remove and destroy all such material, and shall confirm, in writing, that no such material remains publicly accessible or within his possession or control, or, to the best of his knowledge, remains in the possession or control of a third party.

3. The defendant shall not make or publish, or cause any other person to make or publish any video or audio recording, or written statement, of or about any of the plaintiffs.

4. The defendant shall not make, ratify, endorse, publish or re-publish, post or re-post, or cause anyone else to do so, on the internet or elsewhere, any statement about any of the plaintiffs.

5. The defendant shall have no further contact with any of the plaintiffs, either directly or indirectly, but shall deal directly with the plaintiffs’ counsel.

6. The defendant shall not knowingly attend or be present within 500 meters of the individual plaintiffs or their families, their personal residences, their places of employment, or any other location where he knows them to be present, unless such conduct occurs as a consequence of the defendant encountering any of the plaintiffs on a jobsite where the defendant is, at that time, employed to work.

7. The defendant shall not, without the written consent of the president of Labourers’ International Union of North America, Local 183, attend within 500 meters of any office, property or training centre of Local 183 including the Local 183 offices located at 1263 Wilson Avenue #200, North York, Ontario M3M 3G3, and 560 Dodge St., P.O. Box 156, Cobourg, Ontario K9A 4K5. The defendant shall not attend at any jobsite where Local 183 holds bargaining rights unless the defendant is employed to work at such jobsite and his attendance there is directly related to such employment.

Costs

[104] The plaintiffs are successful on their motion for summary judgment and are entitled to their costs on a partial indemnity basis. From their counsel’s bill of costs, it appears that there may have been some duplication of effort among the lawyers engaged in this matter, resulting in higher fees. Adjusting for this factor, I find that an award of $75,000, inclusive of disbursements and HST, is a fair and reasonable amount for Mr. Castellano to pay to the plaintiffs for costs.

[105] I note that there may be cases in which an anti-SLAPP motion is launched and fails, but the court nonetheless sees fit to reduce the costs owing by the unsuccessful party. Such a decision may be appropriate in a case where a chilling effect might otherwise result, and would-be litigants could be deterred from bringing an anti-SLAPP motion. I do not find Mr. Castellani’s case to be such a case.

Dietrich J.

Released: January 30, 2019