Court File and Parties

COURT FILE NO.: CV-19-626256 DATE: 20200609 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHOUDRY AJLAL MAZHAR, Plaintiff / Responding Party AND: SALWA FAROOQI, Defendant / Moving Party

BEFORE: Pinto J.

COUNSEL: Nader R. Hasan and Carlo Di Carlo, for the Moving Party Defendant Choudry Ajlal Mazhar, self-represented, for the Responding Party Plaintiff

Date: March 12, 2020

Reasons for decision

Overview

[1] The defendant Salwa Farooqi brings an anti-SLAPP motion under section 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). This provision allows a court to dismiss, at an early stage, an action that it considers a Strategic Lawsuit Against Public Participation (“SLAPP”), where the expression at issue “relates to a matter of public interest”. A defendant is entitled to bring an anti-SLAPP motion without even filing a defence.

[2] Here, the plaintiff, self-represented, brought a defamation action after the defendant complained to the leadership of a community organization about the plaintiff's alleged harassing behaviour. At the time, both parties were volunteers with the organization. The defendant submits that the action should be dismissed because her complaint relates to the treatment of young mentees in a community organization and, in turn, to the organization's reputation, both matters of public interest. The defendant also submits that the plaintiff's defamation action has no merit. Conversely, the plaintiff submits that his action should be allowed to proceed as it concerns a private dispute with no public interest component. He claims that he has suffered reputational harm that outweighs any public interest in protecting the defendant's expression.

[3] For reasons that follow, I find that the anti-SLAPP test is satisfied and that the plaintiff's action should be dismissed with costs and damages awarded to the defendant.

The Facts

[4] The plaintiff, Choudry Ajlal Mazhar, describes himself as a Pakistani Muslim who came to Canada in 2007 at the age of 18 to make a better life. He studied engineering at the University of Toronto and is employed as a consultant. He met the family of the defendant, Salwa Farooqi, in 2013, as they shared the same cultural and religious background.

[5] Farooqi is 6 years younger than Mazhar. In February 2015, when she was 20 and he was 26, she received a marriage proposal from Mazhar over Facebook Messenger. This was the first time that Farooqi learned of Mazhar's romantic interest as they had no previous romantic interaction or close friendship. Mazhar conceded that Farooqi barely even knew him at that point. Farooqi declined Mazhar's proposal indicating that they were at very different points in their life, and that she had long term plans to pursue her education. Indeed, in 2017, Farooqi entered medical school and, at the time of bringing the motion, was a third-year medical student.

[6] Mazhar maintains, to this day, that he had an oral engagement of marriage with Farooqi and her mother, which was broken-off in September 2017. In retrospect, he believes that Farooqi and her family took advantage of him. Farooqi categorically rejects any suggestion that she was engaged. She portrays Mazhar as pursuing her despite her clear verbal and written indications of disinterest in him.

[7] In December 2017, Farooqi's mother advised her that Mazhar still had romantic feelings for her. In January 2018, to clear the air, Farooqi emailed Mazhar and suggested that they meet in person. In a January 11, 2018 email, prior to their meeting, Mazhar wrote:

Your Mama informed me you don't want to get married for next 8 years and rather intend to centre on your career only, it was unspoken nevertheless understood yourself (sic) and/or your mama are interested in someone else instead. I completely valued your choice, at that time (after 5 long years of wait), I started feeling tired and exhausted, and decided to move forward.

[8] On January 16, 2018, the parties met for coffee and Farooqi told Mazhar that she would never be interested in marrying him and that she was already in a long-term relationship. In the course of their coffee meeting, the parties discussed Mazhar's interest in MAX (Muslim Awards for Excellence), an organization that encourages and recognizes the professional, educational, and charitable achievements of Canadian Muslims. Farooqi was already a member of MAX and agreed to Mazhar's request to introduce him to MAX's founder. Later the same day, Farooqi sent an email to MAX's founder recommending Mazhar as a potential mentor with the program.

[9] Over the course of 2018, Mazhar became involved with MAX as a volunteer and mentor. This brought him into contact with a number of the organization's university-aged female volunteers. He and Farooqi continued to have text and email communications ostensibly in respect of MAX, but Farooqi grew uncomfortable as the communications veered into personal matters. In June, Mazhar returned to the topic of marriage and suggested that he was still waiting for her. Farooqi advised Mazhar, in no uncertain terms, that she did not appreciate his comments, that she now had a partner, and that he should respect her boundaries. She also told Mazhar that she was not interested in being involved in a business idea proposed by him. In October, she blocked Mazhar on WhatsApp, a messaging platform, and asked him not to communicate with her unless it was necessary.

[10] In December 2018, Farooqi became engaged to her long-term partner, another medical professional. On January 24, 2019, Farooqi received a disturbing email from Mazhar that claimed that Mazhar, Farooqi, and Farooqi's mother had all been infected with “black magic” following her fiancé's return from Bangladesh. Mazhar claimed that the “food [Farooqi] has been eating [these] past many months, has been intoxicated with haram ingredients from Bangladesh (black magic practitioners), putting [Farooqi] under severe influence of black magic, where [Farooqi] could not think of anything other than [her fiancé].” In the email, Mazhar stated that he had developed a severe hatred for Farooqi and her mother over the past few months, which he now traced to the influence of black magic.

[11] Farooqi felt threated by Mazhar's “black magic” email. She became concerned for herself and others, including at MAX. On January 24, 2019, Farooqi contacted Dr. Saad Ahmed, the Chair of MAX Mentors, to discuss the situation and forwarded the “black magic” email to him. In an exchange of text messages, Dr. Ahmed advised Farooqi that there would need to be an organizational response from MAX. Farooqi responded that while she was not comfortable talking to MAX's board of directors, she wanted them to know what she was experiencing as a volunteer. Dr. Ahmed advised Farooqi that MAX would consult with human resources professionals about designing a legitimate process for investigating sexual harassment complaints. He also suggested that Farooqi should think about disclosing her identity.

[12] On January 25, 2019, Farooqi was to host a MAX event at a local law firm at which Mazhar was a volunteer. Dr. Ahmed contacted Mazhar and advised him not to attend the event due to a serious complaint of unprofessional conduct and harassment filed against him by an unspecified number of volunteers. Mazhar left at the start of the event. That evening Mazhar texted Farooqi's mother stating, “I'll be taking legal action against you and Salwa if my reputation is impacted by any means anywhere, also I'll not care and open all secrets from last 6 years with evidences in the court.”

[13] On January 26, Dr. Ahmed emailed Mazhar stating that “the allegations are very serious and represent clear violations of our code of conduct (see attached).” Mazhar was directed not to participate in any volunteer activities while an investigation was underway.

[14] On January 28, Mazhar and Farooqi's mother spoke by telephone. Farooqi provided a recording of this telephone conversation which was in Urdu, along with a transcript based on her own translation of the recording into English. According to the transcript, Mazhar stated that: his first priority was to “zero” the complaint; if false accusations were made, the family would have to pay for the consequences; he had lawyers at his disposal whom he had already engaged; his legal bill would be $15-$20,000; the eventual bill would have to be paid by the losing party; he had been very involved with MAX; he had conversations with a number of female volunteers and based on their reaction, it seemed like he had done something wrong; he was waiting for MAX's next move and was preparing to respond.

[15] Mazhar claimed that Farooqi had provided partial and out of context excerpts of the call, and that, on the call, Farooqi's mother had offered him money to make the dispute go away.

[16] On February 18, Dr. Ahmed emailed Mazhar again, this time identifying Farooqi as the complainant. The email described Farooqi's complaint as one of “harassment - that you have messaged her despite frequent requests not to message you (sic), and indeed made clear by her blocking you, and this persistence represented a clear boundary violation.” MAX had set up a Special Committee to conduct a confidential investigation. The email further advised that “we are not an employer nor a judicial body, and will investigate as far as we are concerned about someone's suitability to continue volunteering for our organization.” The Special Committee planned on hearing from the parties separately.

[17] On February 25, Dr. Ahmed advised Farooqi of the Special Committee's investigation using the same language as sent to Mazhar. Subsequently, Farooqi sent the Board a number of materials supporting her complaint ("complaint package"). In a cover letter, Farooqi stated that “[T]he purpose of this now-formalized complaint is to safeguard myself and my fiancé, both active members of MAX Mentors, from this volunteer who has demonstrated unprofessional and unstable conduct.”

[18] On February 26, Mazhar met with members of the Special Committee.

[19] On March 22, the Special Committee advised Mazhar that it had come to a decision and that “on review of the materials presented by both parties, we do not believe there is any reason to ask you not to volunteer for our organization.” The Special Committee considered the matter closed.

[20] On April 16, a lawyer acting on Mazhar's behalf sent Farooqi a without prejudice letter threatening to commence a defamation action unless she agreed to certain terms. The lawyer's letter was copied to Farooqi's father, mother, brother, and to MAX. MAX's counsel replied to Mazhar's lawyer requesting that he “cease and desist from bringing [MAX] into what is purely a private party-to-party dispute.”

[21] In June 2019, Farooqi married her partner.

[22] On July 29, 2019, MAX sent an email to Mazhar advising him that the MAX Mentors team was undergoing substantial restructuring and that MAX would be in touch if it needed further volunteering time.

[23] On August 27, 2019, Mazhar commenced a defamation action against Farooqi claiming general and special damages in the amount of $75,000, and punitive, aggravated, and exemplary damages in the amount of $25,000. Farooqi's counsel made a demand for particulars which was answered by Mazhar, but Farooqi did not file a statement of defence before bringing this anti-SLAPP motion.

Legal Test on an Anti-SLAPP Motion

[24] In Di Franco v. Bueckert, 2020 ONSC 1954, at paras. 11-13, Gomery J. provided a succinct description of the legal test under s.137.1 of the CJA:

[11] Argument on an anti-SLAPP motion proceeds in two stages.

[12] The defendant making the motion must first persuade the judge that the lawsuit “arises from an expression made by the person that relates to a matter of public interest”; s. 137.1(3). If the defendant cannot meet this threshold, then the motion must be dismissed.

[13] If the defendant meets this threshold, the analysis moves to the second stage. The onus shifts to the plaintiff, the responding party on the anti-SLAPP motion, to persuade the motion judge that there are grounds to conclude that:

(i) the lawsuit has substantial merit;

(ii) the defendant has no valid defence; and

(iii) the harm likely to be or which has been suffered by the plaintiff as a result of the defendant's expression “is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression”; s. 137.1(4).

[14] All three parts of this test must be met for the plaintiff to be permitted to proceed with the lawsuit. If the plaintiff cannot meet the onus on the first two parts of this test (those that assess the basic plausibility of the claim and the defence), then there is no need for the court to balance the competing interests on the third part of the test. If the motion judge considers that the harm that has been or that is likely to be suffered by the plaintiff as a result of the defendant's impugned expression is trivial, or clearly outweighed by the public interest in protecting that expression, the judge does not need to spend time considering the potential merits of the claim or the validity of any defence asserted.

What is the impugned expression?

[25] I find it necessary to clarify the scope of the impugned expression as it is not clear from the claim. In describing the alleged defamatory expression, the claim (paras. 18 and 19) references the occasion on January 25, 2019 when Mazhar attended a MAX event hosted by Farooqi and, moments after arriving, learned of a “serious complaint of unprofessional conduct and harassment” that had been filed against him by “an unspecified number of volunteers at MAX”. According to the claim (para. 20), “The complaint alleged, among other things, that the Plaintiff harassed multiple volunteers at MAX, and that the Plaintiff's presence constituted a threat to multiple people.”

[26] The claim (para. 25) also references the February 18, 2019 email from MAX that disclosed that the complainant was Farooqi and described the details of the complaint. These details are again referenced at para. 26 of the claim:

26. The particulars of the defamatory statement are within the exclusive knowledge of the Defendant, but, in pith and substance, were referred to in the email from [Dr. Ahmed] as follows:

Complaint: Harassment - that you (the Plaintiff) have messaged Salwa Farooqi (the Defendant) despite frequent requests not to message, and indeed made clear by her blocking, and this persistence represented a clear boundary violation.

[27] In Mazhar's response to Farooqi's Demand for Particulars, he indicated that the identities of the alleged “unspecified number of volunteers”, other than Farooqi, were never revealed to him. He also conceded that the author of the February 18, 2019 email, which was said to contain the defamatory statement, was Dr. Ahmed, not the defendant. However, he asserted that “the said quote is the product of the defamatory statements communicated to [Dr. Ahmed] by the Defendant, as she is the author of the said defamatory statements. Hence the aforementioned quote is [Dr. Ahmed's] materialized product of the communications made by the Defendant.”

[28] At the hearing of the motion, defendant's counsel conceded, quite correctly in my view, that while the plaintiff had framed his defamation action around the complaint described in Dr. Ahmed's February 18, 2019 email, the actual scope of the alleged defamation was, in fact, more properly described as the complaint package that Farooqi provided to MAX in response to Dr. Ahmed's February 25, 2019 email.

[29] For the purposes of this motion, I find that the alleged defamatory material, or the impugned expression, is what Farooqi included in her complaint package sent to MAX, minus anything written by Mazhar himself. For clarity, the impugned expression consists of (a) Farooqi's cover letter; (b) Farooqi's text messages to Mazhar as revealed in the complaint package; and (c) Farooqi's comments to MAX about the text messages.

[30] I have reproduced herein Farooqi's cover letter and her comments in their entirety, but not the text messages the parties exchanged. I confirm that I reviewed the text messages and considered them, in context, to arrive at my decision on this motion.

[31] Farooqi’s cover letter to MAX stated:

Salam,

I hope this email finds everyone well. Please find attached some supporting evidence regarding my complaint about a MAX Mentors volunteer and previous family friend. The reason for this complaint was fear for my safety and my Fiancé's safety, after receiving an alarming email from this volunteer on Thursday Jan 24 - a day before the Sustaining Sabr Event on January 25, 2019. My concern was for my immediate safety as I was leading and hosting this event and knew that this volunteer was going to be present at it. I shared my fears and stress surrounding this situation with Saad Ahmed, who was forwarded this email.

Upon reflecting on this situation, I believe MAX Mentors would benefit from knowing the most relevant information that pertains to my position as an executive for MAX Mentors and this volunteer's interaction with me under my leadership.

I did, however, provide some information that dates back to the first unprofessional encounter I had with this volunteer (in order to provide context), who coincidentally is also an old and now estranged family friend.

I understand that MAX is not a judicial body and hold no such expectations from the organization. The purpose of this now-formalized complaint is to safeguard myself and my fiancé, both active members of MAX Mentors, from this volunteer who has demonstrated unprofessional and unstable conduct.

Thank you for taking the time to investigate my report.

Warmest Regards,

Salwa Farooqi

[32] Farooqi's comments about the text messages stated:

1. First facebook message from [Mazhar] who was not accepted as a friend on this platform, however, he demonstrated evidence of constantly checking my social media for updates and despite me respectfully asking to maintain professional boundaries and explicitly telling him that I was not interested in his proposal, he continued to pester me through social media to which I subsequently blocked him.

2. After joining MAX Mentors, [Mazhar] constantly overstepped his boundaries - even though I explicitly communicated to him to contact me via email if he had MAX related queries. I had him blocked on all social media platforms and whatsapp. In November, he messaged via text and made incoherent statements after finding out about [fiancé's] and I's (sic) upcoming engagement (evidenced below).

3. Again, I blocked him from being able to text or call me after this unsetting text message encounter. In December, at our general meeting, he asked me to privately step aside to speak to him. I did not feel safe or comfortable being around him and asked him to speak to me in the main lobby with everyone around, he apologized for his behaviour over text, and again, I felt an immediate threat for my safety, I told him I did not feel comfortable speaking with him any further and quickly exited the conversation to quickly join my friends who were waiting for me across the hallway.

4. On Jan 24 he sent a very disturbing and unsettling email from his work email regarding my fiancé, who was out of province for his CaRMS interviews for medical residency. I was very fearful of encountering him at the Jan 25, 2019 event I was leading and hosting, and I was extremely fearful for my safety as [Mazhar] was showing evidence of delusional thought disorder and [an] underlying psychiatric condition. I consulted [Dr. Ahmed] who took immediate action to control the situation.

Does the impugned expression relate to a matter of public interest?

[33] The first step of the s.137.1 test is to determine whether Farooqi's expression relates to a matter of public interest.

[34] In 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, at paras. 62-65, the Court of Appeal for Ontario provided guidance as to the meaning of “public interest”:

[62] An expression can relate to a matter of public interest without engaging the interest of the entire community, or even a substantial part of the community. It is enough that some segment of the community would have a genuine interest in the subject matter of the expression: Grant v. Torstar Corp., at paras. 102 and 105.

[63] Public interest does not turn on the size of the audience. Especially in today's world, communications on private matters can find very large audiences quickly. On the other hand, statements between two people can relate to matters that have a strong public interest component.

[64] Finally, since the promotion of the open exchange of information and opinions on matters of public interest is one of the overarching purposes animating s. 137.1, the characterization of the expression as a matter of public interest will usually be made by reference to the circumstances as they existed when the expression was made.

[65] In summary, the concept of “public interest” as it is used in s. 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 those matters is a “matter of public interest”, the defendant will have met its onus under s. 137.1(3). [emphasis added]

[35] The Court of Appeal's decision in Platnick v. Bent, 2018 ONCA 687 also provides guidance as to the meaning of public interest. Bent, a lawyer in private practice, sent an email to a confidential listserv of plaintiff-oriented members of the Ontario Trial Lawyers Association expressing concern that Platnick, a medical doctor, had misrepresented other doctors' findings in his reports. Although Bent's immediate interest was her client's case, the trial judge held, and the appeal court affirmed, that the public interest in Bent's email related to the proper administration of justice in Ontario, particularly the honesty and integrity of the arbitration process.

[36] Here, the moving party argues that “Farooqi's statements were made to the leadership of an organization whose objectives include encouraging the professional, educational and charitable achievements of Muslims in Canada”, specifically about its mentorship program. Mazhar was a volunteer and mentor in that program who, by his own admission, came into contact with other mentees, including other university-aged women. Mazhar conceded, in cross examination, that the MAX community would want to be assured that volunteers were treated well and would be concerned if volunteers said they felt unsafe.

[37] Mazhar responds that Farooqi's dispute with him is a purely private affair with no public interest component. He points out that whereas Farooqi's original objective in complaining to MAX was “to be left alone” by him, her revised position in court was that she had complained for the greater good. Mazhar also points to MAX's response to his lawyer's demand letter. In the letter, MAX's counsel states that “our organization has nothing to do with the [Mazhar v. Farooqi] matter”, that it is a “toxic personal matter”, and a “purely private party-to-party dispute.”

[38] Guided by the broad meaning of public interest, I find that the impugned expression here relates to a matter of public interest, namely, the character and integrity of mentors in a volunteer organization. It is enough that some segment of the MAX community would have a genuine and legitimate interest in knowing about the character and integrity of mentors in their organization.

[39] I am also mindful that an expression may relate to more than one matter but that if one of those matters is a “matter of public interest”, the defendant will have met its onus. Here, Farooqi's comments, as contained in her complaint package to MAX, and viewed in context, relate to both her private and personal interest in protecting herself, her fiancé and her family, and her broader responsibility to caution and protect other volunteers, particularly young female mentees, in the MAX community. In her cover letter, Farooqi stated “I believe MAX Mentors would benefit from knowing the most relevant information that pertains to my position as an executive for MAX Mentors and this volunteer's interaction with me under my leadership”. This suggests that Farooqi was mindful of her wider responsibility to the MAX organization and community to ensure that her concerns about Mazhar, a mentor with the organization, were more widely known.

[40] I also find it significant that MAX was concerned about Mazhar potentially violating its Code of Conduct and that its investigation was about “someone's suitability to continue volunteering for our organization.” I agree that the question of “volunteer suitability” particularly in a mentorship context is what underpins the public interest aspect of the impugned expression, and what differentiates it from other harassment complaints. Issues of consent and safe interactions between members of a volunteer community concern the welfare of that community and can amount to matters of public interest under anti-SLAPP legislation: Lyncaster v. Metro Vancouver Kink Society, 2019 BCSC 2207, at para. 27.

[41] I find, therefore, that Farooqi has satisfied her onus of demonstrating that her expression relates to a matter of public interest under s. 137.1(3).

[42] The onus now shifts to the plaintiff Mazhar with respect to the rest of the anti-SLAPP test.

Are there grounds to conclude that Mazhar's lawsuit has substantial merit?

[43] In Pointes, the Court of Appeal provided guidance as to how a motions judge should approach this question:

The motion judge must first satisfy himself or herself that there are reasonable grounds to believe that the claim has “substantial merit”: at para. 79.

The use of the word “substantial” to modify “merit” in s.137.1(4)(a)(i) signals that the plaintiff must do more than simply show that its claim has some chance of success: at para. 80.

A claim has “substantial merit” for the purposes of s.137.1 if, upon examination, the claim is shown to be legally tenable and supported by evidence, which could lead a reasonable trier to conclude that the claim has a real chance of success: at para. 80.

[44] To have a legally tenable cause of action, a plaintiff in any defamation case must lead evidence to establish the following elements of the tort: (1) that the words complained of referred to the plaintiff; (2) that the words were communicated to at least one other person; and (3) that the words complained of were defamatory in the sense of tending to lower the plaintiff's reputation in the eyes of a reasonable person: Amorosi v. Barker, 2019 ONSC 4717, at para. 21, citing Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, at paras. 61-62; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 164.

[45] It is not in dispute that Farooqi's impugned words referred to the plaintiff Mazhar, and that the words were communicated to at least one other person, namely the members of the Special Committee of MAX. The contested issue is whether the words complained of are defamatory.

[46] Farooqi argues that:

(a) the general rule is that defamatory words about which the plaintiff complains must be set out fully and precisely in the statement of claim;

(b) plaintiffs are also required to set out the alleged defamatory meaning of the impugned words; and

(c) in order to succeed, a plaintiff must prove that words complained of bore the meanings set out in her pleading.

[47] Farooqi urges a strict application of the rules of pleadings with respect to defamation actions that would likely result in my finding that the claim does not have sufficient merit. However, I find that this approach is not consistent with the more flexible approach required by the Court of Appeal: Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85, 136 O.R. (3d) 23, at paras. 21-25.

[48] In this case, the statement of claim is far from precise as to what words are alleged to be defamatory. On the one hand, paragraph 26 of the claim states:

26. The particulars of the defamatory statement are within the exclusive knowledge of the Defendant, but, in pith and substance, were referred to in the email from [Dr. Ahmed] as follows:

Complaint: Harassment - that you (the Plaintiff) have messaged Salwa Farooqi (the Defendant) despite frequent requests not to message, and indeed made clear by her blocking, and this persistence represented a clear boundary violation.

[49] On the other hand, in other parts of the claim, the self-represented plaintiff also references whatever words Farooqi used that resulted in MAX's investigation of Farooqi's complaint. These words go beyond the words contained in Dr. Ahmed's February 18, 2019 email and, as discussed above, include the words Farooqi used in her complaint package.

[50] A statement is defamatory if it tends to harm the reputation of another so as to lower him or her in the estimation of the community or to deter third parties from associating or dealing with him or her: P. Milmo and W. Rogers, eds., Gatley on Libel and Slander, 11th ed. (London: Sweet & Maxwell, 2008), at p. 39, quoting the American Law Institute in the Second Restatement.

[51] I find that a number of the words Farooqi wrote in her complaint package could be considered to be defamatory:

“The reason for this complaint was fear for my safety and my Fiancé's safety.”

“My concern was for my immediate safety”

“first unprofessional encounter”

“safeguard myself and my fiancé… from this volunteer who has demonstrated unprofessional and unstable conduct.”

“he continued to pester me”

“constantly overstepped his boundaries”

“he messaged via text and made incoherent statements”

“I did not feel safe or comfortable being around him and asked him to speak to me in the main lobby with everyone around, he apologized for his behaviour over text, and again, I felt an immediate threat for my safety”

“he sent a very disturbing and unsettling email”

“I was very fearful encountering him”

“I was extremely fearful for my safety as [Mazhar] was showing evidence of delusional thought disorder and an underlying psychiatric condition.”

[52] Paragraph 39 of the claim is the plaintiff's pleading regarding the purported meaning of the defendant's defamatory comments:

39. The defamatory allegations are, in their literal meaning, completely false. Notwithstanding, the allegations against the Plaintiff, in their extended meaning, were intended to be understood, and were understood to mean, as follows:

(a) The Plaintiff is a predator;

(b) The Plaintiff harassed Defendant and has consistently harassed her;

(c) The Plaintiff is a misogynist;

(d) The Plaintiff has a propensity or potential to be violent;

(e) The Plaintiff emotionally abused the Defendant;

(f) The Plaintiff cannot be trusted;

(g) The Plaintiff is morally corrupt;

(h) The Plaintiff is cruel to women.

[53] Farooqi submits that the plaintiff is confined to the meanings relied upon in his pleadings; and since the words complained of as defamatory cannot and do not bear those meanings, the plaintiff's action should fail: Lawson v. Baines, 2011 BCSC 326, 34 B.C.L.R. (5th) 363, at para. 35.

[54] I find that Farooqi's words in her complaint package cannot be interpreted to mean most of what is listed in paragraph 39 of the claim. However, Farooqi's words can bear the meaning that the plaintiff harassed or consistently harassed her or, that he has the potential to be violent. I find that this meaning flows from Farooqi's repeated references to her feelings of fear and lack of safety, and her reference to Mazhar's alleged instability. Certainly, in a community of young professionals, particularly one bound by common religious and cultural ties, I can see how allegations of “feeling unsafe” and “being pestered” are tantamount to an allegation of harassment. Such an allegation made by a young female volunteer against an older male volunteer could lower the latter's reputation. I therefore disagree with the defendant who argues that, because it was MAX and not Farooqi who used the word “harassment”, Farooqi cannot be held liable.

[55] Noting that the question of substantial merit should not be conflated with the question of valid defences, I find that there are reasonable grounds to believe that the substantial merit requirements of the plaintiff's claim are satisfied.

Are there grounds to conclude that the defendant has no valid defence?

[56] The onus is on the plaintiff to convince me 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 his onus: Pointes, at para. 84.

[57] Here, the defendant claims three defences: (a) justification or truth; (b) qualified privilege; and (c) fair comment.

(a) Justification

[58] To establish a defence of justification or truth, the defendant must prove the substantial truth of the “sting”, or main thrust, of the libel complained of: Cusson v. Quan, 2007 ONCA 771, 87 O.R. (3d) 241, at para. 35, rev'd on other grounds 2009 SCC 62, 3 S.C.R. 712.

[59] The main thrust of Farooqi's expression was that Mazhar had continued to contact her seeking a personal relationship despite her repeatedly asking him not to do so and blocking him on WhatsApp. Her concern became acute after receiving Mazhar's January 24, 2019 email which claimed that her fiancé had infected her and her mother with black magic after he returned from Bangladesh. In the same email, Mazhar also said that he had developed a hatred of them.

[60] I have little difficulty in finding that Farooqi's comments are substantially true.

[61] The context goes back to 2015 when, out of the blue, Mazhar sent Farooqi a marriage proposal over Facebook Messenger. She firmly but politely rejected him. Mazhar maintains to this day that the parties had an “oral” engagement until it was called off in September 2017, but he could not provide a date when the engagement supposedly occurred.

[62] In January 2018, Mazhar acknowledged in an email “[Y]our Mama informed me you don't want to get married for next 8 years and rather intend to centre on your career only… [and] you and/or your mama are interested in someone else instead”. Farooqi confirmed her disinterest again a few days later in their coffee meeting. Yet, in June of 2018, Mazhar again brought up the topic of marriage and that he was waiting for Farooqi. She texted him back: “I never told you I wanted to marry you ever”; “I told you I have a partner”; and “I would appreciate it if you respect my boundaries.” In October, she blocked him on WhatsApp and advised him not to communicate with her unless it was necessary. And then she received Mazhar's “black magic” email in January 2019 which prompted her to complain to MAX.

[63] Mazhar claims that his communications with Farooqi have been taken out of context. But upon reviewing the record, I do not see what further context could detract from Farooqi's essential point that Mazhar pursued her romantically even though she had made it absolutely clear that she was not interested in him, that she had a partner, was engaged, and had blocked his messages. Mazhar claims that the sending of his “black magic” email was justified because he expressed “genuinely held religious, cultural, and spiritual concerns deriving from his Pakistani and Muslim identity.” This may have been his motivation, but it does not change the fact that he once again contacted Farooqi about a personal matter after she repeatedly asked him to stop doing so.

[64] The plaintiff has not met his burden of demonstrating that a trier could conclude that the defence of justification would not succeed.

(b) Fair Comment

[65] A defendant claiming fair comment must satisfy the following test:

(a) the comment must be on a matter of public interest;

(b) the comment must be based on fact;

(c) the comment, though it can include inferences of fact, must be recognizable as comment;

(d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and

(e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.

Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Incorporated, 2018 ONCA 383, at para. 21.

[66] I find that, to the extent that Farooqi's expression was a comment, her defence of fair comment is satisfied. I have already found that the comment was on a matter of public interest and that Farooqi was commenting on the facts of her interaction with Mazhar. With respect to the third element, the Supreme Court has directed that whether a statement is a comment is a “relatively easy” onus to discharge, and that comment is to be “generously interpreted”: WIC Radio Ltd. v. Simpson, 2008 SCC 40, 2 SCR 420, at paras. 26 and 30.

[67] Here, Farooqi was advising MAX about her reaction to receiving the disturbing “black magic” email from Mazhar and putting it into context regarding a “volunteer who has demonstrated unprofessional and unstable conduct.” Based on the record, I find that a person could honestly express the same opinion as Farooqi on the facts.

[68] The evidence does not establish malice on Farooqi's part despite the plaintiff's claim that malice was Farooqi's dominant motive in sending her complaint to MAX. Farooqi wrote a carefully worded cover letter to her complaint, enclosed the relevant text messages, and provided her comments, all of which emphasize her concern for her safety and that of others. In light of having just received Mazhar's “black magic” email that stated he had developed a hatred for her, I find Farooqi's response measured and not made in malice.

(c) Qualified Privilege

[69] An apt summary of the defence of qualified privilege was provided in Weisleder v. OSSTF, 2019 ONSC 5830, at paras. 8-12, per Ferguson J.:

[8] The defence of qualified privilege is described in Brown on Defamation, as follows:

There are certain occasions on which a person is entitled to publish untrue statements about another, where he or she will not be liable even though the publication is defamatory. One such occasion is called a conditional or qualified privilege. No action can be maintained against a defendant unless it is shown that he or she published the statement with actual or express malice. An occasion is privileged if a statement is fairly made by a person in the discharge of some public or private duty, or for the purpose of pursuing or protecting some private interest, provided it is made to a person who has some corresponding interest in receiving it. The duty may be either legal, social or moral. The test is whether persons of ordinary intelligence and moral principle, or the great majority of right-minded persons, would have considered it a duty to communicate the information to those to whom it was published.

[9] Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. A privileged occasion is an occasion 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.

[10] Qualified privilege applies to communications made by a member or executive member of a trade union to other members of that union concerning the union's affairs and the activities or actions of executive members.

[11] The legal effect of the defence of qualified privilege is to rebut the inference that the published defamatory words were spoken with malice. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. The privilege is not absolute, however, and may be defeated if the dominant motive for publishing is actual or express malice. Qualified privilege may also be defeated if the limits of the duty or interest have been exceeded. If the information communicated was not reasonably appropriate to the legitimate purposes of the occasion, the qualified privilege will be defeated.

[12] The defence of qualified privilege reflects a balancing of competing interests: the interest the maker of the statement seeks to serve and the interest in reputation that the defamed party seeks to protect.

[70] The key element to the defence is that there is the reciprocity between the publisher and the recipient of the impugned statement: RTC Engineering Consultants Ltd. v. Ontario (2002), 58 O.R. (3d) 726 (C.A.), at para. 16.

[71] I find that the defence of qualified privilege fully applies to the facts of this case. Farooqi contacted Dr. Ahmed in the wake of receiving Mazhar's “black magic” email, and the day before she was to host a MAX event at which Mazhar was to volunteer. Dr. Ahmed was the one who suggested that there would need to be an organizational response and that she should think about coming forward and disclosing her identity as a complainant. MAX began a confidential investigation process through a Special Committee which requested to meet with the parties separately. Farooqi sent her complaint package to MAX referencing her “position as an executive for MAX Mentors and this volunteer's interaction with [her] under [her] leadership.” I find that these factors speak clearly to the reciprocal nature of Farooqi's complaint, and her social and moral duty to furnish information to MAX given Mazhar's mentor status.

[72] Farooqi was careful not to characterize her complaint as one of sexual harassment, and I hasten to add that my ruling should not be seen as making any finding in that regard. However, relevant to the discussion of qualified privilege, I note that MAX may have also had a legal obligation to investigate Farooqi’s complaint of harassment under human rights law: Coates v. Communications, Energy & Paperworkers Union, Local 324, 2009 HRTO 1631, at paras. 67-69. Although the parties were not employees of MAX, volunteer organizations may be considered a “social area” under the Ontario Human Rights Code: PR v. Toronto (City), 2020 HRTO 124, at para. 21, citing Rocha v. Pardons and Waivers of Canada, 2012 HRTO 2234, at para. 23.

[73] Since I also find that Farooqi was acting in good faith when she submitted her complaint to MAX, all the elements of a qualified privilege defence are satisfied.

[74] As Farooqi has the defences of justification, fair comment, and qualified privilege available, the plaintiff has not satisfied me that the defendant has no valid defence in the proceeding.

[75] I could end my analysis here and dismiss the action as all three elements of s.137.1(4) must be satisfied by the plaintiff, whereas the plaintiff has already not satisfied the “no valid defences” element. However, I will continue my analysis with respect to the final element of the anti-SLAPP test.

Does the harm suffered by Mazhar outweigh the public interest in protecting Farooqi’s expression?

[76] In Bullard v. Rogers Media Inc., 2020 ONSC 3084, McKelvey J. set out the relevant principles from Pointes with respect to the final element of the anti-SLAPP test:

[13] The court in the Pointes decision recognizes that the real heart of the anti-SLAPP legislation is found in subsection (4)(b) which considers the public interest in protecting the expression as compared to the degree of harm that has been suffered by the responding party.

[14] At para. 88 of the Pointes decision, the Court of Appeal states,

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.

[15] At para. 90 of the Pointes decision, the court notes that a plaintiff must provide a basis upon which a motion judge can make some assessment to the harm done or likely done to it by the impugned expression. The court notes that “this will almost inevitably include material providing some quantification of the monetary damages”. The court accepts, however, that a plaintiff is not expected to present a fully developed damages brief. At para. 92, the court notes that equally important to the quantification of the damages, a plaintiff must provide material which can establish the causal link between the defendant’s expression and the damages claimed.

[77] Mazhar sued Farooqi for $100,000 in damages. He argues that he has suffered reputational damage and that his lawsuit does not bear the classic indicia of a SLAPP suit identified in Platnick, at para. 99. He has no history of using litigation to silence his critics; he claims he has less, not more, financial resources than the plaintiff, who is supported by her family and her physician husband; and, he has no punitive purpose in bringing this case since he was already vindicated by the outcome of MAX’s investigation. With respect to his damages, he asks the court to consider the reputational impact that Farooqi’s complaint has on him in the context of him living without a family in Canada since 2007. He states that he sought mental health counselling after being suspended from MAX.

[78] Farooqi responds that the evidence, particularly from Mazhar’s cross-examination, undermines many of his claims. Mazhar acknowledged that most of the MAX volunteers did not even know about Farooqi’s complaint, and that he is still in more than 100 chat groups with MAX members. The confidential nature of MAX’s investigation conducted by a Special Committee insulated him from reputational harm. Farooqi’s complaint was not upheld, and he was free to continue to volunteer with MAX. He has been gainfully employed with the same employer for the last two years. With respect to his mental health counselling, he attended on three occasions but two of the attendances were before he learned about Farooqi’s complaint. Finally, he did not provide evidence with respect to any special damages. In contrast, Farooqi’s complaint had a strong public interest component in respect of protecting volunteers in the organization.

[79] At the hearing of the motion, I provided the plaintiff with several opportunities to draw a link between Farooqi’s complaint and his alleged ostracism from MAX. I found his evidence to be speculative. For instance, he claimed that a July 29, 2019 email from MAX claiming that its mentorship program was undergoing substantial restructuring was not accurate, as the website still showed MAX looking for volunteers. However, this was not supported in the record.

[80] The plaintiff also pointed out that in 2018 he was tasked with building an entire project for MAX, but in 2019, after the complaint, his involvement was discontinued. But here he failed to account that within a volunteer organization there can be a number of reasons why certain volunteers are reorganized and why certain projects are discontinued. Mazhar failed to make a nexus between the defendant’s impugned expression and the termination of his relationship with MAX. Mazhar simply blamed Farooqi’s complaint on what transpired at MAX after the investigation.

[81] Moreover, on the evidence, I find that Mazhar’s own conduct may have contributed to a chill in relations with MAX. I note, for instance, the aggressive and “over the top” tone of his lawyer’s demand letter to Farooqi dated April 16, 2019, copied to MAX. The letter stated “[t]he complaint suggested, among other things, that [Mazhar] abused you sexually, physically and emotionally.” Of course, Farooqi’s complaint said no such thing. The letter also demanded, inter alia, that Farooqi “step away from MAX in all capacities for [the] next five years”, and that Farooqi’s entire family apologize to Mazhar. This letter generated a terse response from MAX’s lawyer requesting that Mazhar refrain from involving MAX in his dispute with Farooqi.

[82] Ultimately, when weighing the public interest in protecting Farooqi’s expression versus the harm done to Mazhar’s reputation, there is no contest. Mazhar has not met his burden and as such fails on this component of the test.

[83] In summary:

a) I am satisfied that the claim arises from an expression that relates to a matter of public interest;

b) while there are grounds to believe that the proceeding has substantial merit;

c) there are also ground to believe that the defendant has valid defences; and

d) the harm to the plaintiff is not sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression.

e) Accordingly, the action is dismissed.

Costs

[84] The defendant provided a Bill of Costs requesting $75,212.28 in full indemnity costs pursuant to s. 137.1(7) of the CJA, the costs provision of the anti-SLAPP legislation.

[85] “Full indemnity” means recovery of what would reasonably have been contemplated as the amount a lawyer would actually charge the client. When a Court orders full indemnity costs, it means that the party is entitled to recover all that it has expended in the action: DEI Films Ltd. v. Tiwari, 2018 ONSC 4818, at para. 14.

[86] The Law Commission of Ontario in its report, Defamation Law in the Internet Age: Final Report (Toronto: Law Commission of Ontario, 2020), at p. 52, described the costs provisions of the anti-SLAPP legislation as follows:

The legislation uses cost provisions to encourage defendants to make use of the new procedure. Where a defendant is successful in having a proceeding dismissed, there is a statutory presumption that she will be awarded her costs of the motion and the proceeding on a full indemnity basis. However, where a plaintiff is successful in defending her action, the presumption is the opposite – she will not be awarded costs on the motion. Both presumptions are subject to the judge’s discretion.

[87] In United Soils Management Ltd. v. Mohammed, 2019 ONCA 128, at para. 42, the Court of Appeal also provided guidance regarding the obligations of a motion judge to determine costs under this section.

[42] We do, however, agree with the appellant that there remains an obligation on a motion judge, when determining the quantum of costs under s. 137.1(7), to undertake the same type of analysis that is required when fixing costs in any other context. Just because the award is on a full indemnity basis does not mean that the successful party is entitled to whatever costs were incurred. The quantum must still be fair and reasonable for what was involved in the particular proceeding: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 26. The award must also be proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding: see r. 1.04(1.1), Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[88] I find the defendant’s Bill of Costs of $75,212.28 to be fair and reasonable for what was involved in the proceeding. For example, Farooqi provided a 147-page motion record consisting of her affidavit (11 pages) and exhibits, whereas Mazhar provided an 846-page responding motion record consisting of his affidavit (104 pages) and exhibits. I also note that the cross-examination of the plaintiff was conducted by the less senior of the defendant’s counsel in a professional and efficient manner.

[89] I also consider the defendant’s costs request to be fair in light of other anti-SLAPP cases including:

• McQueen v. Reid, 2018 ONSC 1662, at para. 45, where costs of $80,000 were awarded in a defamation case between two individuals. The defendant had requested $100,000 in full-indemnity costs.
• Joshi v. Allstate Insurance Company of Canada, 2019 ONSC 5934, at para. 24, where costs of $95,173.26 were awarded where the successful defendant had requested $126,449.16.
• United Soils Management Ltd. v. Mohammed, 2017 ONSC 6350, at para. 11; affirmed on appeal, United Soils Management Ltd. v. Mohammed, 2019 ONCA 128, at para. 41, where costs of $122,286.94 were awarded. However, $30,000 of those costs were awarded on three earlier motions, therefore, the comparable anti-SLAPP costs award is $92,286.94.
• United Soils Management Ltd. v. Barclay, 2018 ONSC 1372, at para. 144, affirmed on appeal, United Soils Management Ltd. v. Mohammed, 2019 ONCA 128, at para. 41, where costs of $126,438.55 were awarded.

Section 137.1(9) Damages

[90] Section 137.1(9) of the CJA provides that if, in dismissing a proceeding under that section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.

[91] Farooqi requested $50,000 in such damages acknowledging that, if awarded, such an amount would set a high-water mark for s. 137.1(9) damages. In the United Soils Management cases, the motions judges awarded $20,000 in damages to Barclay and $7,500 to Mohammed.

[92] In affirming the damages awards in United Soils Management, the Court of Appeal set out the following principles at paras. 35-38:

a) if the court is satisfied on the record before it that an action has been brought in bad faith or for an improper motive, such as punishing, silencing or intimidating the defendant rather than any legitimate pursuit of a legal remedy, an additional remedy should be available for this improper conduct;

b) medical evidence is not necessary to support a claim for s.137.1(9) damages. While medical evidence might be of assistance in determining the proper quantum of damages to be awarded, in certain cases, it may be presumed that damages will arise from the use of a SLAPP lawsuit;

c) whether an award of damages is warranted should also take into account the presumption that costs will be awarded on a full-indemnity basis; and

d) the thrust of such damages is to provide compensation for the harm done directly to the defendant arising from the impact of the instituted proceeding. It is not a proxy for punitive damages.

[93] The defendant justified her damages request on a combination of the impact of the lawsuit on her, and the plaintiff’s “deplorable behaviour” throughout the litigation. Farooqi pointed out that Mazhar:

a) repeatedly berated her in her cross-examination for not swearing on the Holy Quran, despite her already having been affirmed and the fact that he himself had been affirmed;

b) threatened to sue Farooqi’s mother if Farooqi advanced her complaint at MAX;

c) threatened to sue her fiancé; and

d) included embarrassing but irrelevant documents about Farooqi and her fiancé in his motion materials.

[94] Farooqi also pointed to a particularly disturbing threat made by Mazhar about going after Farooqi’s professional reputation if his defamation claim was dismissed:

But if this claim is quashed that gives me a legal license to file a complaint against Ms. Farooqi and she cannot pick on me because I am just going to pick up on this claim that was rejected. I can go to University of Toronto, I can go to medical boards, I can go to hospitals, I can go to medical councils of Canada, I can go to College of Physicians…College of Family Physicians of Canada, and I can go anywhere else. (Transcript of cross-examination of plaintiff, p. 256)

I agree with the defendant that the self-represented plaintiff’s behaviour during the litigation was egregious. Still, the focus of s. 137.1(9) is determining whether the action has been brought in bad faith or for an improper motive, such as to punish, silence or intimidate the defendant, rather than any legitimate pursuit of a legal remedy.

[95] I find that s. 137.1(9) damages are warranted here. Mazhar commenced this action despite MAX’s harassment investigation process being confidential and concluding that he could still continue as a volunteer. The matter could have ended there. Mazhar’s decision to commence a defamation claim despite the conclusion of MAX’s investigation process evinces the bad faith or improper purpose with which this action was brought.

[96] I find that Mazhar commenced his defamation claim to punish Farooqi for complaining to MAX about him, and to intimidate her in case she planned on going further. Translating this into the language of harassment complaints, his civil lawsuit represents a reprisal.

[97] Farooqi did not provide medical evidence of the impact of Mazhar’s conduct. However, I find that Mazhar sued her in the early years of her medical career, shortly after she had just got married, and a few months after her father passed away due to sudden heart failure. I find that in these circumstances the lawsuit caused Farooqi unnecessary stress that negatively affected her life.

[98] I find that the plaintiff’s conduct and its impact on the defendant merits a compensatory award of $10,000 in s. 137.1(9) damages. This is less than the $20,000 awarded in United Soils v. Barclay, 2018 ONSC 1372, but there the plaintiff corporation brought a number of interlocutory motions that were seen by the motion judge as unduly aggressive and unjustifiable.

[99] I find that something more than full indemnification of the defendant’s costs is warranted in the circumstances of this case.

Conclusion

[100] As the defendant has been successful in the anti-SLAPP motion, the plaintiff’s action is dismissed. The defendant is awarded costs in the amount of $75,212.28 and damages in the amount of $10,000, all to be paid by the plaintiff within 30 days of the release of my decision.

Pinto J.

Date: June 9, 2020