ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-17-581078

DATE: 20190925

BETWEEN:

KEVIN HAMLIN

Plaintiff

– and –

JACKIE KAVANAGH AND THE SIMCOE COUNTY DISTRICT SCHOOL BOARD

Defendants

Counsel:

Peter A. Downard and Rachel Laurion, for the Plaintiff

Keven S. Adams and Emily Vereshchak, for the Defendants

HEARD: August 13, 2019

Cavanagh J.

REASONS FOR JUDGMENT

Introduction

[1] The plaintiff is a retired music teacher and former head of the music department at Collingwood Collegiate Institute (“CCI”), a secondary school which operates as part of the Simcoe County District School Board (the “SCDSB”). The plaintiff commenced an action in defamation against the SCDSB and Jackie Kavanagh who was employed by SCDSB in the role of Superintendent of Education.

[2] The defendants move to dismiss the action pursuant to the Strategic Lawsuit Against Public Participation provisions in s. 137.1(3) of the Courts of Justice Act.

[3] For the following reasons, the defendants’ motion is dismissed.

Background Facts

Parties

[4] The plaintiff Kevin Hamlin is a retired music teacher and former Arts Department Leader and Music Department Head at CCI, a secondary school located in Collingwood which operates as part of the SCDSB. Jackie Kavanagh was employed by the SCDSB in the role of Superintendent of Education.

Storage of Musical Instruments at CCI

[5] The music program at CCI was managed by the plaintiff and one of his colleagues with the financial support of the Collingwood Optimist Youth Band Organization (“COYBO”), a private corporation which provided musical instruments at an affordable cost to youth in the Greater Collingwood area. COYBO is separate and distinct from the SCDSB.

[6] COYBO funded the purchase of musical instruments for the music program at CCI. The total value of those instruments was more than $300,000. Parents paid a fee for a student to have the use of an instrument for the school year. The student and his or her parents agreed to accept responsibility for the care of the borrowed instrument. The amount of the fee paid to COYBO was far less than the ordinary cost of a commercial instrument rental.

[7] The musical instruments purchased with COYBO funds were stored at CCI. The instruments were not owned by the SCDSB and they were not insured under insurance coverage of the SCDSB. Incidents of theft and vandalism had occurred.

The Room 149 Cameras

[8] To address the security risk, the plaintiff and a colleague requested that CCI install a video camera system in room 149 at CCI, the music room where the instruments were kept. With the knowledge and support of CCI administration officials, two cameras were installed, approximately 12 years ago, into ceiling corners of room 149.

[9] The room 149 cameras were in plain view. In addition, the plaintiff’s evidence is that warning signs to alert persons entering CCI premises that video recording devices were present were posted near CCI’s front doors for students on the east side of the building, the “bus entrance” to the school, and in a window of an entrance door on the west side of the school in CCI’s technical shop wing. The evidence with respect to the locations of these signs was not entirely clear on the record, although it is not disputed that signs were posted in some locations when the room 149 cameras were installed.

The Room 148 Cameras

[10] Several years after the two security cameras were installed in room 149, the recording machine connected to the cameras broke down and was not replaced. A new larger room for the music department, room 148, was built in a former tech shop. Room 148 was an exterior room with an outside door to a secluded back laneway. There were two large “receiving doors” at the back of room 148 which could be used to load or unload large equipment into the laneway.

[11] According to the plaintiff’s evidence, on an occasion between 2010 and 2012 when he and a colleague were in Toronto, they happened across a store selling security equipment. They learned that they could acquire digital security cameras and a digital recorder for much less than the cost that had been incurred for the two room 149 cameras. The cameras looked like smoke detectors.

[12] The plaintiff and his colleague decided to purchase six cameras to protect the instruments and equipment in room 148. The plaintiff purchased the hidden cameras with his own funds at some time between 2010 and 2012. They did not seek the prior approval of CCI or SCDSB administrators. The plaintiff determined that the installation of the hidden cameras in room 148 was appropriate without consulting any board policies with respect to surveillance in schools or obtaining permission from any school authority. He and other music teachers installed the cameras in music classrooms 148 and 148A, the music office in 148B and the music practice room in 148C (the “148 Rooms”).

[13] The plaintiff did not hang any warning signs at the time he installed the hidden cameras or afterwards. The plaintiff provided evidence that some students and colleagues were aware of the hidden cameras, but he did not specifically or generally advise students and staff that the area was under surveillance.

Discovery and investigation of the hidden cameras

[14] In November 2016 during a routine health and safety inspection, CCI staff members discovered several hidden cameras disguised as smoke detectors located in music classrooms and offices at CCI. Upon discovery of the hidden cameras, the equipment was removed and photographed. In addition, the Human Resources Department at the SCDSB, the Ontario Provincial Police (the “OPP”) and the Office of the Information and Privacy Commissioner (the “IPC”) were notified, and investigations were commenced.

[15] As part of the OPP investigation, officers seized two visible surveillance cameras located in the music rooms 149 and 149B. The surveillance cameras in the music rooms 149 and 149B were in plain sight and had not been functional for many years. Officers also seized six surveillance cameras which were disguised as smoke detectors (the “hidden cameras”) located in the 148 Rooms and a hard drive recording system. The hard drive contained video evidence of recorded events between April 8, 2016 and June 2, 2016.

[16] Following a review of the recordings, the OPP determined that the evidence did not substantiate formal criminal charges.

[17] The SCDSB internal investigation revealed that the plaintiff, along with three other teachers at CCI, one past and two current, had been involved with the installation, or had prior knowledge of, the hidden cameras. It was believed that the hidden cameras had been installed five or more years prior to their discovery.

[18] Over the course of February 2017 to May 2017, SCDSB staff worked with an IPC Analyst assigned to the case to ensure that the IPC’s requirements were met regarding notification to affected individuals of the potential privacy breach. During this time, a notice letter was drafted which was reviewed and revised by the IPC in order to provide adequate information to the intended recipients.

The May 18, 2017 letter and related media coverage

[19] Following approval of the draft notification letter by the IPC, the SCDSB delivered a letter dated May 18, 2017 to students and parents at CCI notifying of the circumstances of the potential privacy breach, the actions taken by the SCDSB in response and providing contact information for the IPC. The letter was posted on the website of the SCDSB. The letter, signed by Ms. Kavanagh, stated:

Late last year it was discovered that there were hidden cameras placed in some of the music classrooms at the school. Since they were discovered, the board has been working with the Collingwood OPP and the Information and Privacy Commissioner of Ontario (IPC).

We are writing to notify you of a potential breach of privacy which is contrary to the Municipal Freedom of Information and Protection of Privacy Act. This breach pertains to any person who entered one of the affected classrooms during the last five-year period.

The cameras were discovered in the following locations:

• Room 148-Music Classroom

• Room 148A - Music Classroom/Storage Area

• Room 148B - Music Office

• 148C - Music Practice Room

• Room 149 - Music Classroom

• Room 149B - Music/Arts Storage Area

Upon discovering the cameras, the principal of the school notified the respective Superintendent. All of the monitoring equipment was subsequently removed by board staff, and secured at our board office. The same day, our community relations officer from the Collingwood OPP was contacted about the discovery of the cameras. Our human resources department was also informed and an internal investigation ensued over the period of December 2016 to February 2017.

The investigation has revealed that the equipment was installed approximately five years ago by two staff members to help address issues of alleged instrument theft. There is no indication of the surveillance video was viewed by the respective staff for any purpose other than resolving matters of theft. School administration was unaware that the equipment was installed, or in place, during this five-year period.

As a follow-up investigation, the IPC was notified of the breach on January 13, 2017. The relevant authorities were also notified on the same date. In due course, the recorded images will be disposed of with the assistance of our confidential material disposition service contractor. We have been working closely with the IPC these past months to ensure this matter is addressed appropriately.

We take our responsibility to protect our students’ privacy very seriously and want you to know that we will continue to make improvements in this area through on-going staff education and training.

On behalf of the Simcoe County District School Board, I wish to express my sincere regrets for this breach.

The IPC may be contacted at: [address and telephone number].

[20] Following the delivery of the May 18, 2017 letter, the story was picked up by the local news. Both CTV TV News and the Collingwood Connection reported and published articles on the discovery of the hidden cameras at CCI. The article published on May 23, 2017 in the Collingwood Connection was entitled “Collingwood students filmed without knowledge for five years, Board found cameras in 5 Rooms in November”. The article reported that “Superintendent Jackie Kavanagh said the cameras were not authorized by school administration or paid for by the board.”

The plaintiff’s May 25, 2017 email and June 5 text message

[21] On May 25, 2017 the plaintiff prepared and sent to parents and students an email response to the May 18, 2017 letter. The plaintiff’s evidence is that he sent the email to persons on the COYBO contact list.

[22] The plaintiff’s evidence is that over the years during which he managed the musical instrument program established by COYBO, he compiled an extensive personal database of contact information so that he could reach CCI students who used COYBO instruments, and their parents, on an as needed basis. His evidence is that this database was completely separate from any SCDSB database.

[23] There was other media attention given to these matters including a report that a CCI student was reported to have said that students changed clothes in one of the rooms at CCI in which the security cameras were installed. The plaintiff’s evidence is that this report was misleading because students always wore clothes in these rooms and on occasion took marching band uniforms off in the room that they wore over their clothes. The local media reported that the OPP is re-opening its investigation.

[24] On June 5, 2017, the plaintiff sent an email to representatives at the SCDSB to make sure they understood that the CCI music rooms are open access rooms in which students did not change clothes in circumstances involving an expectation of privacy. The plaintiff’s evidence is that he also sent to persons on the COYBO contact list a text message with a link to his response stored on his Google drive.

[25] The defendants’ evidence is that the plaintiff accessed the contact information of parents and students at CCI by way of a Gmail account intended for current CCI staff and volunteers, and that this contact information was not provided to the plaintiff by COYBO. The defendants rely on information provided by recipients of the plaintiff’s emails who they maintain were not part of the COYBO lease program.

The June 30, 2017 letter

[26] Following the plaintiff’s May 25, 2017 email and June 5, 2017 text message, the staff at the SCDSB contacted the IPC again to obtain guidance on a proper response to a potential privacy breach. Following guidance from the IPC, the SCDSB delivered a letter dated June 30, 2017 which stated:

In May we wrote to you to inform you that we had discovered that there were cameras placed in some of the music classrooms at the school. At that time the Board took the steps of working with the Collingwood OPP and the Information and Privacy Commissioner of Ontario (IPC) to address the issue. As you may know, on June 5, 2017 the Collingwood OPP announced they had re-opened the investigation. Both the school and the Board are participating in the investigation, as appropriate.

As part of this investigation has come to our attention that an unauthorized person obtained access to a contact list of students and families at the school. This list is for the strict use of school administration and contains email addresses and phone numbers of those students, as well as their parents.

We are writing to notify you that we believe your contact information was part of this potential breach of privacy. We are in contact with the Information and Privacy Commissioner to address this issue and we sincerely apologize for any upset this may have caused you. We have taken steps to address the privacy of this and all other contact lists.

For your information, any official email contact from the school is always sent from an active school employee, be it administration or your current teacher, and from a board email address ending in @scdsb.on.ca. Should you receive any email communication related to CCI that is not from an @scdsb.on.ca address, please let us know.

Questions or concerns may be directed to me at: [telephone number].

The Information and Privacy Commissioner (IPC) of Ontario may be contacted at: [address and phone number].

[27] In response to the June 30, 2017 letter, the Collingwood Connection posted a news article outlining that the SCDSB was working with the IPC to investigate the breach. The article stated that the plaintiff contended that the school principal knew about the cameras and that he installed them with another teacher to deter theft.

Commencement of this action

[28] The plaintiff served a libel notice on July 7, 2017. This action was commenced by Notice of Action issued on August 18, 2017.

Analysis

[29] Subsection 137.1(3) of the Courts of Justice Act provides that on a 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.

[30] The moving party has the onus to establish both of the criteria in s. 137.1(3), on a balance of probabilities, at this stage of the analysis.

[31] Subsection 137.1(4) of the Courts of Justice Act provides that 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.

[32] The word “reasonable” is implicit in s. 137.1(4)(a): 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 at para. 69.

Does the action arise from expressions made by the defendants that relate to a matter of public interest?

[33] The word “expression” is defined broadly in section 137.1(2) as “[a]ny communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity”.

[34] The plaintiff accepts that the action arises from “expressions” made by the defendants.

[35] The phrase “a matter of public interest” in section 137.1 (3) is not defined in the legislation. In Pointes, the Court of Appeal for Ontario addressed the meaning of this term at paras. 54-66 and summarized the concept of “public interest” at para. 65:

In summary, the concept of “public interest” as it is used in section 137.1 (3) is a broad one that does not take into account the merits or manner of the expression, nor the motive of the author. The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication. An expression may relate to more than one matter. If one of these matters is a “matter of public interest”, the defendant will have met its onus under section 137.1 (3).

[36] The defendants submit that the letters relate to a matter of public interest because the privacy interests of high school students is a matter of public interest, as privacy is a fundamental right of every individual in Ontario. The defendants submit that the letters communicate both the subject of potential breaches of privacy and the responsive actions taken by the OPP and the SCDSB which were guided by the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”). The defendants submit that the letters each contain subject matter which attracts the public’s substantial concern, given that it affects the welfare of students.

[37] The plaintiff submits that the letters relate to the subject of the scope of reasonable expectations of privacy in a public school and, although the plaintiff strongly objects to the content of the publications, he does not take issue that their subject matter was of public interest for the purpose of the section 137.1 threshold test.

[38] I am satisfied that the letters relate to the privacy interests of high school students at their schools which is a matter of public interest. The defendants have satisfied their onus of establishing that the action arises from expressions made by the defendants that relate to a matter of public interest.

Are there grounds to believe that (i) the action has substantial merit, and (ii) the defendants have no valid defence in the action?

[39] Where a defendant satisfies the threshold requirements under section 137.1, the onus shifts to the plaintiff. The action will be dismissed unless the plaintiff satisfies two tests set out in s. 137.1(4)(a) which have been described as the “merits based hurdle”.

[40] In Pointes, the Court of Appeal held at para. 73 that the interpretation of ss. 137.1(4)(a)(i) and (ii) must begin by recognizing the purpose of s. 137.1:

It provides a judicial screening or triage device designed to eliminate certain claims at an early stage of the litigation process. Sections 137.1(4)(a) and (b) identify the criteria to be used in that screening process. Section 137.1 does not provide an alternate means by which the merits of a claim can be tried, and it is not a form of summary judgment intended to allow defendants to obtain a quick and favourable resolution of the merits of allegations involving expressions on matters of public interest. Instead, the provision aims to remove from the litigation stream at an early stage those cases, which under the criteria set out in the section, should not proceed to trial for a determination on the merits.

The motion judge must decide whether a trier could reasonably conclude that the plaintiff’s claim has “substantial merit”, and that the defendant has “no valid defence”. If the motion judge decides that both fall within the range of conclusions reasonably available on the motion record, the plaintiff has met the onus under section 137.1(4)(a). If the plaintiff does not meet that onus, its claim will be dismissed. See Pointes at para. 75.

[41] The motion judge must be careful that a s. 137.1 motion does not slide into a de facto summary judgment motion. The motion judge must avoid taking a “deep dive” into the ultimate merits of the claim under the guise of the much more limited merits analysis described by section 137.1(4)(a): Pointes at para. 78.

[42] The plaintiff must first satisfy the court that there are reasonable grounds to believe that the action has substantial merit. The plaintiff must do more than simply show that its claim has some chance of success. A claim has “substantial merit” for the purposes of section 137.1 if, upon examination, the claim is shown to be legally tenable and supported by evidence, which could lead a reasonable trier to conclude that the claim has a real chance of success. A determination of whether the claim shows “substantial merit” must take into account what can reasonably be expected of the plaintiff at the time of the s. 137.1 motion: Pointes at paras. 80-81.

[43] To prove a case in defamation, a plaintiff needs to establish (i) that the words complained of are defamatory, in the sense that the words would tend to lower the reputation of a person in the estimation of a reasonable person; (ii) that the defamatory words refer to the plaintiff; and (iii) that the words have been published to a third party: Grant v. Torstar Corp., 2009 SCC 61 at para. 28.

[44] The plaintiff submits that a trier could reasonably conclude that the May 18 letter was defamatory because it alleged that persons participated in an unlawful breach of students’ privacy which had gone on for years, without the knowledge of the CCI administration, and that the persons responsible had engaged, or there were grounds to believe or suspect that they had engaged, in invasions of privacy and criminal misconduct warranting the involvement of the OPP. The plaintiff points to language in the May 18 letter in which the author expressed “sincere regrets for this breach”.

[45] The plaintiff submits that a trier could reasonably conclude that the June 30 letter was defamatory because this letter states that “an unauthorized person obtained access to a contact list of students and families at the school” and it notified recipients that their contact information was part of “this potential breach of privacy”. The plaintiff submits that a trier could reasonably conclude that the June 30 letter alleges that the person referenced in the June 30 letter had misused confidential information of the defendants.

[46] The plaintiff submits that there are reasonable grounds to believe that persons who received the May 18 and June 30 letters would have understood that they referred to the plaintiff. The test is whether on the evidence the words used are such as would reasonably lead ordinary and sensible persons acquainted with the plaintiff to believe that he or she was the person referred to: Grant v. Cormier-Grant, 2001 CarswellOnt 3417 at paras. 19-24. The plaintiff submits that although the May 18 letter and the June 30 letter do not expressly refer to the plaintiff, given his long-time leadership of the CCI music department and his close involvement in the management of the CCI band and its musical instruments, there are reasonable grounds to believe that persons in the community acquainted with the plaintiff would have understood that the May 18 and June 30 letters referred to him. With respect to the June 30 letter, the plaintiff points out that persons who received this letter would have understood it to refer to him, given that they had just received a communication from the plaintiff regarding the CCI cameras issue.

[47] The defendants submit that the contents of the letters were neither defamatory nor did they directly refer to the plaintiff. The defendants submit that the letters provide purely factual information for parents and students regarding the circumstances of a potential privacy breach and the steps taken by the defendants in response to that potential breach. The defendants submit that the May 18 letter did not identify the plaintiff, rather, following its delivery, the plaintiff implicated himself by commenting directly on the contents of the letter in his May 25, 2017 statement which was circulated broadly and in his responses to the media. The defendants submit that the June 30, 2017 letter also did not identify or specifically refer to the plaintiff.

[48] The May 18 letter alleged that staff members of CCI engaged in a breach of privacy contrary to the MFIPPA through installation of hidden cameras in music classrooms, practice rooms and storage areas without the knowledge or approval of CCI administration. Although the May 18 letter specifically states that the investigation revealed that the equipment was installed to help address issues of alleged instrument theft and that there is no indication that the surveillance video was viewed by the respective staff for any purpose other than resolving matters of theft, this information does not affect the other parts of the letter which allege that the staff members engaged in conduct that was in breach of privacy laws without the knowledge of CCI administration. For this reason, I am satisfied that a trier could reasonably conclude that the words used in the May 18 letter would tend to lower the reputation of the staff members referenced in the estimation of reasonable persons.

[49] The June 30, 2017 letter states that an unauthorized person obtained access to a contact list of students and families at the school which is for the strict use of school administration and that this resulted in a potential breach of privacy. I am satisfied that a trier could reasonably conclude that these statements would tend to lower the reputation of the person referenced in the estimation of reasonable persons.

[50] The plaintiff provided evidence of his involvement in the Greater Collingwood community through his work over 29 years as the Arts Department Leader and Music Department Head at CCI and his time managing COYBO which provided musical instruments at an affordable cost to youth in the Greater Collingwood area. I am satisfied that, given this evidence, a trier could reasonably conclude that recipients of the May 18 letter acquainted with the plaintiff would have understood that it referred to the plaintiff, even before the plaintiff’s May 25, 2016 statement. A trier could also reasonably conclude that recipients of the June 30 letter would have understood that it referred to the plaintiff.

[51] I am satisfied that the plaintiff has shown that a trier could reasonably conclude that his claim has a real chance of success.

[52] The plaintiff must also satisfy me that there are reasonable grounds to believe that the defendants have no valid defence in the action. The defendant has the evidentiary burden to advance any proposed “valid defence” in the pleadings or in the material filed on the s. 137.1 motion in sufficient detail to allow the motion judge to clearly identify the legal and factual components of the defences advanced.

[53] Once the defendant has put a defence in play, the persuasive burden moves to the plaintiff to satisfy the motion judge that there are reasonable grounds to believe that none of the defences put in play are valid. The onus rests on the plaintiff to convince the motion judge that, looking at the motion record through the reasonableness lens, a trier could conclude that none of the defences advanced would succeed. If that assessment is among those reasonably available on the record, the plaintiff has met its onus: Pointes at paras. 83-84.

[54] The defendants submits that there are several valid defences available. The defendants submit that the plaintiff has failed to establish that a trier could reasonably conclude that none of the defences advanced would succeed. For purposes of this motion, the defendants rely upon the defences of justification, qualified privilege, and responsible communication.

(a) Has the plaintiff established that a trier could reasonably conclude that the defence of justification would not succeed?

[55] Justification is a complete defence to an action for defamation based on a statement of fact, as publishing a true statement is not actionable. The defence of justification will be established where, on a balance of probabilities, the alleged defamatory words have a correct meaning. Minor inaccuracies will not prevent the defendant from establishing the defence: Grant at paras. 32-33.

[56] The defendants submit that in their natural and ordinary meaning, the words contained in the May 18, 2017 letter detail the facts surrounding the discovery of the hidden cameras and the actions taken by the SCDSB in response. The defendants submit that this letter strictly provides information outlining the reasons for the commencement of the investigations with the IPC and the OPP in addition to the responsibilities of the SCDSB to notify individuals who may have been affected by the breach.

[57] The defendants submit that, similarly, the June 30, 2017 letter notifies parents and students at CCI of a second potential breach of privacy following an email communication that utilize their contact information. The defendants submit that this letter informs recipients of the steps taken to address the potential breach and clarifies the source of official communications from the SCDSB and, finally, the letter provides a brief update on the OPP investigation with respect to the re-opening of the investigation into the surveillance cameras at CCI.

[58] One of the statements in the May 18, 2017 letter is “[s]chool administration was unaware that the equipment was installed, or in place, during this five-year period”. The defendants submit that this statement is true other than, possibly, the words “or in place”. The defendants submit that the facts included in the letters are substantially true and most have been admitted by the plaintiff.

[59] The plaintiff submits that the burden on a defendant pleading justification is to prove the substantial truth of the “sting”, or main thrust, of the defamatory words. The plaintiff submits that the sting of the words includes the express defamatory meaning of the words and any implication that is found to have been a correct defamatory meaning of them. See Platnick v. Bent, 2018 ONCA 687 at para. 58.

[60] The plaintiff submits that the primary sting of the May 18, 2017 letter is that he had participated in secret video surveillance of CCI students without the knowledge of the CCI administration. The plaintiff submits that a trier could reasonably conclude that this defence is invalid because his evidence is that the primary sting of the May 18, 2017 letter is false.

[61] The plaintiff relies upon his evidence that, with respect to the room 149 cameras, these cameras were installed into ceiling corners of room 149 with the knowledge and support of CCI administration officials. With respect to the cameras in the 148 Rooms, the plaintiff’s evidence is that although prior approval for the installation of these cameras was not sought, the plaintiff specifically recalls discussing these cameras with CCI vice-principal Laura Lee Millard-Smith after they were installed. The plaintiff’s evidence is that he recalls telling Ms. Millard-Smith that a person responsible for stealing a flute had been identified after replaying the security cameras. The plaintiff’s evidence is that shortly after this incident, he informed the then principal of CCI, Mike Abram, about the theft caught by the room 148 security cameras and that Mr. Abram expressed no concerns to him about the security cameras, except to ensure that they were not in any change rooms. The plaintiff’s evidence is that he told Mr. Abram that room 148 did not have any change rooms and the conversation ended there.

[62] In the affidavit filed by the defendants in support of their motion, the deponent, John Dance, the Associate Director of Education and Superintendent of Human Resource Services at the SCDSB, provided evidence that Ms. Kavanagh advised him that (i) on or about February 3, 2017 she telephoned three former principals at CCI including Mr. Abram and none of them was aware of the hidden cameras nor recalled providing permission for their installation, and (ii) on or about June 27 and 28, 2017, she spoke with former vice-principals at CCI, Ms. Millard-Smith and one other, and former principal Mr. Abram, who each advised that they were not aware of the surveillance cameras that were disguised as smoke detectors.

[63] The defendants rely upon evidence given by the plaintiff when he was cross-examined in which he testified that he did not tell Ms. Millard-Smith that there were cameras hidden in smoke detectors, that he cannot remember the specifics of his conversation with Mr. Abram when he advised him of cameras in smoke alarms, and he does not recall telling Mr. Abram that the cameras were hidden cameras. The defendants submit that the crux of the sting of the May 18, 2017 letter is that the plaintiff installed hidden cameras disguised as smoke detectors without the approval or knowledge of CCI administration or board, and that this was true.

[64] I remind myself that a motion under s. 137.1 is not a summary judgment motion. The evidence concerning what Mr. Hamlin said to Ms. Millard-Smith and to Mr. Abram after the cameras in the 148 rooms were installed is contentious. Neither of Ms. Millard-Smith or Mr. Abram swore affidavits. The evidence of Mr. Dance with respect to these discussions is double hearsay. On the record before me, it is not possible for me to make factual findings on what was said to Ms. Millard-Smith or Mr. Abram by Mr. Hamlin with respect to the installation of cameras in the 148 rooms or what they understood.

[65] The May 18, 2017 letter states that school administration was unaware that the equipment was installed “or in place” during the five year period of time after it was installed. I am satisfied that a trier could reasonably conclude that the inclusion of the words “or in place” contributed in a material way to the sting of the letter. The plaintiff’s evidence is that this statement is not true, because he informed Ms. Millard-Smith and Mr. Abram of the presence of cameras in the 148 Rooms. Depending on factual findings with respect to the discussions, if any, between Mr. Hamlin and Ms. Millard-Smith and Mr. Abram with respect to cameras in the 148 Rooms, I am satisfied that a trier could reasonably conclude that the May 18, 2017 letter was not substantially true, and that the defence of justification is not available.

[66] With respect to the June 30, 2017 letter, the plaintiff submits that a trier could reasonably conclude that the defence of justification would not succeed by finding that the plaintiff used the COYBO contact information which did not include email addresses and telephone numbers intended for the strict use of CCI school administrators, and that this letter was not substantially true. The plaintiff relies on evidence given by Mr. Dance on his cross-examination that he does not dispute that the plaintiff used contact lists generated by COYBO.

[67] The defendants rely on evidence that a parent who received the plaintiff’s June 5 text message expressed concern to Ms. Kavanagh that the plaintiff had accessed the SCDSB database and that the June 5 statement had been received by CCI students outside of the music program. The defendants also rely on evidence from the plaintiff’s cross-examination that he did not verify that the COYBO database included only contact information of students who rented musical instruments from COYBO.

[68] The evidence relating to the composition of the COYBO contact list and whether an unauthorized person accessed the CCI records to add information to the COYBO contact list is contentious. I again remind myself that this is not a summary judgment motion. I am unable to make findings on this motion to resolve the contentious factual issues in relation to the COYBO contact list.

[69] On the evidentiary record, I am satisfied that a trier could reasonably conclude that the defence of justification would not succeed in respect of the June 30, 2017 letter.

(b) Has the plaintiff established that a trier could reasonably conclude that the defence of qualified privilege would not succeed?

[70] The defence of qualified privilege is available where a defendant’s impugned statement was motivated by a duty. Qualified privilege applies to the occasion upon which the communication is made and not the communication itself. The information must be reasonably appropriate in the context of the circumstances. A privileged occasion is one where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential. The rationale for the defence is that the interest sought to be protected by the statement is important enough to justify a limited immunity from an action for defamation. See Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 at paras. 146 and 150.

[71] The defendants submit that their duty to notify parents and students who may have been subject to a privacy breach is manifest, and that the defendants were required to follow the collection, use and disclosure provisions pursuant to the MFIPPA and to adhere to the recommendations of the IPC pursuant to the SCDSB policy. The defendants submit, further, that parents, students and the general public have a corresponding interest in receiving the information contained in the letters as it pertains to the operation of schools, including the safety and security of students’ and others’ privacy interests.

[72] The plaintiff submits that the defence of qualified privilege has been exceeded because the privilege only applies to communications to those with a legitimate interest in receiving the information or a duty to receive the information. The plaintiff submits that where the publication is overbroad, the privilege is lost. In Hill, the Supreme Court of Canada confirmed at paras. 149-150 that qualified privilege may be defeated when the limits of the duty or interest have been exceeded. The information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when the information was given.

[73] In this case, the letter was published on the publicly available website of the CCI which was reported on in the public media to all in the community. This publication was broader than a publication limited to students and former students who may have been affected by the privacy breach and their parents.

[74] On the evidentiary record before me, I am satisfied that a trier could reasonably conclude that the publication of the letters was made in a way that exceeded what was reasonably appropriate in the context of the circumstances existing when the letters were sent. The plaintiff has shown that a trier could reasonably conclude that the defence of qualified privilege would not succeed.

(c) Has the plaintiff established that a trier could reasonably conclude that the defence of responsible communication would not succeed?

[75] The defence of responsible communication is available where the publication is on a matter of public interest and the publication was responsible, in that the defendant was diligent in trying to verify the allegations, having regard to all relevant circumstances including (a) the seriousness of the allegation; (b) the public importance of the matters; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth: Grant v. Torstar at paras. 98 and 126.

[76] The defendants submit that they properly verified the information in the letters having regard to the seriousness of the matter by conducting an internal investigation and involving both the OPP and the IPC prior to releasing the May 18, 2017 letter. The defendants submit that they continued to work diligently with the IPC in advance of the June 30, 2017 letter to ensure the publication accurately reflected the circumstances and information conveyed.

[77] The defendants contend that the potential breach of the students’ and others’ privacy interests was serious and of considerable public importance, and that despite some urgency to notify the recipients of the potential breach of privacy, they awaited the outcome of the OPP investigation and conducted their own internal investigations in the months prior to release of the May 18, 2017 letter and the June 30, 2017 letter. The defendants submit that they considered the information to be trustworthy and the sources to be reliable and that it is implicit in the contents of the letters that they were actively investigating the matters referenced therein and that the letters do not represent final and complete conclusions. As such, the defendants submit that the letters constituted reportage. The defendants submit that the defendants’ purpose in publishing the letters was informative, with an intention to abide by law, policy and procedure. They submit that the defence of responsible communication is a valid defence to the plaintiff’s action.

[78] The plaintiff submits that the process followed by the defendants to verify the information that was published is in issue. The plaintiff notes, for example, that the IPC was told that there were no signs posted to alert persons to the presence of surveillance cameras whereas the evidence is that there were signs posted at locations at the entrance to the school. The plaintiff also challenges the evidence of the knowledge of Ms. Millard-Smith and Mr. Abrams and points out that the evidence in the record of Ms. Kavanagh’s interviews of them was not given by Ms. Kavanagh herself, and there was no evidence given by the interviewees of how these interviews were conducted. The plaintiff submits that it is impossible for me to be satisfied on this record that a trier could not reasonably conclude that the defendants did not conduct a diligent investigation.

[79] In Grant, the Supreme Court of Canada held at paras. 116-117 that one of the relevant factors that may aid in determining whether a defamatory communication on a matter of public interest was responsibly made is whether the plaintiff’s side of the story was sought and accurately reported. The Supreme Court of Canada held that in most cases, it is inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond and that failure to do so heightens the risk of inaccuracy, since the target of the allegations may well be able to offer relevant information beyond a bare denial.

[80] The plaintiff submits that the defendants did not act fairly towards him when they published the May 18, and June 30, 2017 letters because, in both cases, the defendants knew the plaintiff’s side of the story but made no reference to it. The defendant’s position is that the information provided by the plaintiff was at odds with the preponderance of the evidence received from other reliable sources, and they rely upon evidence that they accepted the statements by Ms. Millard-Smith, Mr. Abrams and another former principal that they did not know of the hidden cameras in the 148 Rooms. In support of their submission that they conducted the investigation diligently and reported fairly, the defendants rely on evidence that the plaintiff was invited to a meeting to discuss his written statements before the May 18, 2017 letter was published and he declined to attend.

[81] The defendants’ evidence of the part of the investigation that involved interviews by Ms. Kavanagh of Ms. Millard-Smith and Mr. Abram is based upon information provided to Mr. Dance by Ms. Kavanagh. As I have noted, Mr. Dance’s evidence is that Ms. Kavanagh informed him that she telephoned Mr. Abram and two other former principals at CCI on or about February 3, 3017 and none of them was aware of the hidden cameras nor recalled providing permission for their installation. Mr. Dance’s evidence is that Ms. Kavanagh advised him that she spoke with Ms. Millard-Smith and Mr. Abram as well another former principal of CCI on or about June 30, 2017 and each advised her that they were not aware of the surveillance cameras that were disguised as smoke detectors. It is not clear from this evidence whether Ms. Kavanagh asked Ms. Millard-Smith or Mr. Abram whether they knew that cameras had been installed in the 148 Rooms (even if they did not know that the cameras were hidden and disguised as smoke detectors) based upon information provided by the plaintiff. The plaintiff’s evidence is that he informed them of the installation of cameras in these rooms. It was open to the defendants to provide direct evidence from Ms. Millard-Smith and Mr. Abram for this motion, but they chose not to do so. In the absence of this evidence and given the evidence from the plaintiff of his discussions with Ms. Millard-Smith and Mr. Abram, I am satisfied that a trier could reasonably conclude that the defendants did not conduct a sufficiently diligent investigation in relation to the knowledge of Ms. Millard-Smith and Mr. Abram of cameras that the plaintiff had installed in the 148 rooms.

[82] I am satisfied that a trier could reasonably conclude that the defence of responsible communication would not succeed.

Are there grounds to believe that the harm likely to be or have been suffered by the plaintiff as a result of the defendants’ expression is sufficiently serious that the public interest in permitting the action to continue outweighs the public interest in protecting that expression?

[83] Under section 137.1(4)(b), the burden is on the plaintiff to satisfy the motion judge that the harm likely to have been suffered by the plaintiff as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[84] In Pointes, the Court of Appeal observed that, in some ways, section 137.4 (4) (b) is the heart of Ontario’s Anti-SLAPP legislation. The Court of Appeal noted that the “public interest” hurdle reflects the legislature’s determination that the success of some claims that target expression on matters of public interest comes at too great a cost to the public interest in promoting and protecting freedom of expression. See Pointes at para. 86.

[85] In Pointes, the Court of Appeal addressed at paras. 88 and 90 “harm” as this term is used in s. 137.1(4)(b):

The harm suffered or likely to be suffered by the plaintiff as a consequence of the defendant’s expression will be measured primarily by the monetary damages suffered or likely to be suffered by the plaintiff as a consequence of the impugned expression. However, harm to the plaintiff can refer to non-monetary harm as well. The preservation of one’s good reputation or one’s personal privacy have inherent value beyond the monetary value of a claim. Both are tied to an individual’s liberty and security interests and can, in the appropriate circumstances, be taken into account in assessing the harm caused to the plaintiff by the defendant’s expression: [citations omitted].

On the s. 137.1 motion, the plaintiff must provide a basis upon which the motion judge can make some assessment of the harm done or likely to be done to it by the impugned expression. This will almost inevitably include material providing some quantification of the monetary damages. The plaintiff is not, however, expected to present a fully-developed damages brief. Assuming the plaintiff has cleared the merits hurdle in s. 137.1(4)(a), a common sense reading of the claim, supported by sufficient evidence to draw a causal connection between the challenged expression and damages that are more than a nominal will often suffice.

[86] In Thompson v. Cohodes, 2017 ONSC 2590, Kristjanson J. noted at para. 32, citing Hill at para. 164, that general damages are presumed from the publication of a libel and need not be established by proof of actual loss. In considering the harm to the plaintiff under s. 137.1(4)(b), Kristjanson J. considered the seriousness of the impugned statement, the mode and extent of publication, the position and standing of the plaintiff in the community and the importance of the plaintiff’s reputation to his or her employment or profession, and the conduct of the defendant before and after the time of publication.

[87] The defendants submit that the alleged harm suffered by the plaintiff as a consequence of the defendants’ expression is modest at best. They submit that the plaintiff had already retired from his career as a teacher at the time of the letters, so his vocation was not affected. They submit, further, there is no evidence that the plaintiff has suffered any special damages as a result of the alleged defamatory statements. In addition, the defendants rely upon the evidence that the plaintiff identified himself and explained his role in the installation of the hidden cameras and justified the use of the cameras, such that the information disclosed in the letters had little to no impact on his reputation. The defendants submit that the plaintiff has failed to demonstrate that the letters caused damage to his reputation in the community.

[88] The expressions in the May 18 and June 30 letters could lead a reasonable trier to infer that the plaintiff engaged in unlawful and unauthorized conduct which is serious, and which should be condemned. I disagree that the fact that the plaintiff made public statements explaining his conduct eliminates any damages that the plaintiff may have suffered. The letters were published widely and received significant media attention in the community. The plaintiff has provided evidence of his position and good standing in the community including his ongoing involvement in music education in Canada. I accept that the plaintiff has not provided evidence to quantify monetary damages measured by loss of income that he suffered as a consequence of the impugned expressions. However, I am satisfied that a trier could reasonably conclude that the plaintiff is entitled to general damages that are more than nominal.

[89] I accept the defendants’ submission that there is a public interest and expectation that the defendants adhere to their legislative and policy obligations. The question that arises in this case is not whether the defendants had these obligations, but whether they discharged them in ways that were beyond what was necessary to protect the public interest. See Pointes at para. 94. I am not satisfied that to allow this action to continue would have a chilling effect on the defendants’ actions to comply with these obligations.

[90] In Pointes, the Court of Appeal described at para. 98 cases that should be removed from the litigation process through s. 137.1(4)(b) as those where the plaintiff has a “technically valid cause of action” and had suffered “insignificant harm”. The plaintiff has satisfied me that there are reasonable grounds to believe that the harm likely to have been suffered by the plaintiff as a result of the defendants’ expressions is sufficiently serious that the public interest in permitting the action to continue outweighs the public interest in protecting the expressions in the May 18 and June 30, 2017 letters that include the statements that the plaintiff alleges are untrue and defamatory.

Disposition

[91] The defendants’ motion is dismissed.

[92] If the parties are unable to agree on costs, the plaintiff may make written submissions within 20 days. The defendants may make responding submissions within 20 days thereafter. The plaintiff may make brief reply submissions, if so advised, within 5 days thereafter.

Cavanagh J.

Released: September 25, 2019