COURT FILE NO.: CV-18-00607956-0000

DATE: 20200910

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LI NIU, Plaintiff

AND:

YUAN CAO a.k.a. REBECCA CAO, Defendant

BEFORE: Justice Glustein

COUNSEL: Gil Zvulony, for the plaintiff

Ryder Gilliland, for the defendant

HEARD: August 11, 2020

REASONS FOR DECISION

Nature of motion and overview

[1] The defendant, Yuan Cao a.k.a. Rebecca Cao (“Cao”), brings a motion under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (“s. 137.1”) to dismiss the defamation claim brought by the plaintiff, Li Niu (“Niu”), on the basis that it is a strategic lawsuit against public participation (“SLAPP”). The s. 137.1 motion is commonly referred to as an “anti-SLAPP” motion.

[2] The impugned statements arise from (i) a two-part article entitled “Stories Behind Life in a Big House in Canada”, with the first part published on August 1, 2018 (the “First Article”) and the second part published on August 3, 2018 (the “Second Article”) (collectively referred to as the “Articles”), and (ii) comments made by Cao on her “WeChat” social media account on August 3 and 4, 2018 (the “WeChat Comments”). I collectively refer to the Articles and the WeChat Comments as the “Publications”.

[3] For the reasons that follow, I dismiss the motion. I find that:

(i) Cao has met the threshold under s. 137.1(3) that (a) she is the author of the impugned statements and (b) her expression relates to a matter of public interest;

(ii) Niu has established under s. 137.1(4)(a) that there are grounds to believe that her proceeding has substantial merit and Cao has no valid defence in the proceeding; and

(iii) Niu has established under s. 137.1(4)(b) that the harm she suffered from the impugned statements is “sufficiently serious” that the public interest in permitting the proceeding to continue outweighs the public interest in protecting Cao’s expression.

[4] In my analysis below:

(i) I first review the background of the litigation;

(ii) I then review the evidence as to the publication and dissemination of the Publications;

(iii) I then review the impugned statements in the Publications; and

(iv) Finally, I consider each of the requirements under s. 137.1, primarily pursuant to the leading decision on anti-SLAPP motions, 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, a case relied on by both parties.

Background to the litigation

1. Relevant facts about the parties

[5] I summarize the relevant background facts about Niu as follows:

(i) Niu is a well-known, Chinese-speaking, female real estate agent residing in Oakville, Ontario who specializes in residential real estate;

(ii) For the last ten years, Niu has worked primarily with Chinese-speaking people who want to buy or sell a home in Oakville or the surrounding area;

(iii) Prior to the Publications, Niu was the top-earning agent in her brokerage of 400 realtors at Right at Home Realty for five consecutive years;

(iv) Prior to her work at Right at Home Realty, Niu was a real estate agent with AimHome Realty between 2009-2014 where she received an award every year for being a top agent;

(v) Niu has her own blog, which she had in 2014 (when the conduct described in the Publications allegedly took place) and in 2018 (when the impugned statements were published and disseminated in the Publications). The blog is written in Chinese and is directed to Chinese-speaking people interested in Oakville residential real estate. Niu uses the blog to highlight her experience in real estate and her knowledge of the local area;

(vi) Some of Niu’s blog postings have garnered hundreds of thousands of views;

(vii) In addition to blogging, Niu promoted her services by delivering thousands of brochures to homes in Oakville every month. These brochures included marketing about her in Chinese that is directed to the Oakville Chinese-speaking community;

(viii) Niu had also conducted an advertising campaign in Chinese on bus stops throughout Oakville; and

(ix) Consequently, Niu’s name and image are well known as a Chinese-speaking real estate agent with knowledge and experience of the real estate landscape in Oakville.

2. The agency relationship and home purchase

[6] In March 2014, Cao and her husband hired Niu to act as agent for them to find and purchase a home. Cao advised Niu that she became aware of Niu’s services through an internet search.

[7] Cao advised Niu that Cao and her husband knew the type of home they wanted.

[8] Niu took Cao and her husband to several homes in Oakville on two different days. Niu found that because Cao and her husband had a “good idea about the house they wanted”, Niu’s work in finding them a property did not require many showings.

[9] Cao and her husband signed an agreement of purchase and sale (the “APS”) on March 30, 2014 for a home (the “Property”) that Niu showed them as agent.

3. The wire shelving in the front bedroom closet

[10] The basis for the impugned statements leading to the defamation claim arises, in part, from the issue of wire shelving in the front bedroom closet of the Property.

[11] There is a significant dispute between the parties as to whether Niu advised Cao that the wire shelving in the front bedroom closet would be excluded from the purchase. I do not resolve that factual dispute on this motion. I set out below the uncontested facts about the wire shelving:

(i) There was a clause in the APS that stated “WIRE SHELVING AND CURTAINS IN FRONT BEDROOM” [block letters in original text] were excluded fixtures;

(ii) The only wire shelving in the front bedroom was in the closet;

(iii) The shelf inside the bedroom was a bookshelf and was not a wire shelf;

(iv) The parties discussed the wire shelving exclusion clause before the APS was signed; and

(v) Niu took measurements of the closet because she understood that replacement shelving would be required.

4. Steps leading to closing of the APS

[12] The home inspection took place on March 31, 2014. There is a further dispute between Niu and Cao as to whether the replacement of the wire shelving was discussed at that time.

[13] Niu’s evidence is that she offered to buy replacement shelves and have Niu’s husband install them, while Cao denies the conversation. Niu also offered a $1,000 rebate of her commission to Cao when the inspector found a mouldy board and estimated the replacement cost at $1,000.

[14] There is also a dispute as to whether Niu distracted Cao during the inspection, causing Cao to be unaware that the inspector noted a water mark on the first-floor ceiling. Cao acknowledges that (i) she was not distracted when she received the written report from the inspector and (ii) she and her husband were able to ask the inspector any questions about the report.

[15] Cao also had two “revisits” to the Property before closing. Niu’s evidence is that at the first revisit, Cao and her husband expressed dissatisfaction that the wire shelving had been excluded. Niu’s evidence is that, as a goodwill gesture, she offered them a further rebate of $680 on her commission. Cao denies such a discussion.

[16] Cao wanted a friend of hers (who she said was very knowledgeable in real estate) to attend with her at the second revisit, and Niu could not attend due to short notice. The second revisit took place on June 15, 2014, three days before the closing on June 18, 2014.

[17] On the closing day, Cao raised concerns about the condition of the Property. Niu attended at Cao’s home on short notice to discuss the concerns, took some photographs, and wrote an email to the seller’s agent that evening expressing those concerns. None of those concerns related to the wire shelving exclusion.

5. Conduct after closing

[18] After closing, Niu continued to contact the seller’s agent to address Cao’s concerns. Cao advised Niu that the issues were not a “big problem” and that Cao and her husband “will do it ourselves” and that Cao would “contact the seller [herself] directly”.

[19] On June 27, 2014, Niu purchased several wire shelves to be installed at Cao’s home, based on her measurements of the front bedroom closet. While Cao states that Niu only planned to install one shelf, there is a receipt for the purchase of several shelves.

[20] On July 1, 2014, Niu’s evidence is that she attended with her husband to install the shelving and to deliver Niu’s commission rebate cheque in the amount of $1,680. That cheque was deposited by Cao’s husband on July 4, 2014. Niu’s evidence is that Cao “preferred having only one shelf so that she could leave some room for her clothes to hang from a rod and not get creased”, and “[a]s per [Cao’s] instructions, my husband installed only one shelf”. Cao denies the conversation and states that Niu only offered to install one shelf.

The publication and dissemination of the impugned statements

[21] On August 1 and 3, 2018 respectively, Cao published the First and Second Articles. The First Article related primarily to Cao’s home-buying experience in 2014, as well as repair and renovation issues related to the Property after the purchase. The Second Article related primarily to the sale of the Property in 2018 and the subsequent purchase of a home in Windsor, Ontario, although there were some references to Cao’s prior experience purchasing the Property in 2014.

[22] The Articles were published on Cao’s “WeChat” account (entitled “Joys and Sorrows of Life in Canada”) in the Chinese language. The purpose of the account is for Cao to share her daily experiences living in Canada with other new immigrants in order to prepare them for many of the challenges, misconceptions, and struggles upon moving to a foreign country.

[23] WeChat is the most popular instant communication app in China. It is a multi-purpose app that provides a wide range of messaging and social media platforms. WeChat is used by Chinese diasporas around world to connect with other Chinese users due to restrictions on other social media platforms such as Facebook, Instagram, and Twitter.

[24] WeChat users can register a WeChat account and download the app. Users can then send instant messages between individual accounts.

[25] WeChat users can also subscribe to groups based on various interests. Groups range from between 3 to 500 members. Messages sent within a group can only be seen by group members.

[26] The WeChat Comments were posted in a WeChat group currently entitled “Oakville howling group of nouveau-riche researching on IFTTT” (the “WeChat Group”), consisting of approximately 500 members with approximately 50 active members. In addition to residents of Oakville, the group includes members from other cities across Ontario and other Canadian provinces.

[27] Cao also posted a link to the Articles in the WeChat Group on August 3, 2018.

[28] The WeChat Group serves as a discussion board. Members routinely use the WeChat Group to share their personal experiences living in Canada. It is used as a referral source where people can make recommendations for services, including real estate agents.

[29] The Articles were shared in other WeChat groups beyond the initial group. Niu saw the Articles in a group of which she was a member. Further, in the WeChat Comments, Cao encouraged readers to share the Articles.

[30] The Articles remained on Cao’s account until removed on February 16, 2019, when she posted the following:[^1]

In the two articles published on my official WeChat account in August 2018, “The Story Behind the Life of Canada’s Big House”, I discussed my experiences with the realtor we used to purchase our house in 2014. I expressed dissatisfaction with the services the realtor provided. After corresponding with the realtor, I found that the articles contained some misunderstandings about what had occurred. As a result, I have deleted the articles. I also used the words like (cheat/beguile/trick/deceive/delude) in WeChat conversations about the article. I never meant to suggest at any time that the realtor engaged in fraud or intended to cause any harm to me. Rather, I meant to say that the service provided did not meet the level that I expected. I sincerely apologize to the realtor.

The impugned statements in the Publications

1. The First Article

[31] Niu submits that the following statements in the First Article are false and defamatory, in that a reasonable reader of the article would conclude that Niu was an unprofessional and unhelpful real estate agent who abandoned her inexperienced client and did not keep her promises. Cao stated that:

(i) She and her husband “had no experience” in buying a home;

(ii) Cao and her husband “googled and came across this Blog of a female Chinese agent on a local Chinese forum, which was dedicated to the introduction of Oakville”;

(iii) “It seemed [the agent] was very experienced and knew a lot about the local area”;

(iv) Cao understood that the agent was “so experienced” and “had many clients and was very busy”;

(v) The agent was unaware that the wire shelving in the front bedroom window was going to be removed by the sellers. Cao stated that: “[The agent] said, as leisurely as before: ‘oh, the contract did indicate one item to be taken away. I didn’t realize it meant this one’”;

(vi) The agent offered no assistance when the shelving issue arose and then “took off and never looked back”;

(vii) The agent only offered one shelf to address the wire shelving issue but Cao wanted more;

(viii) The agent distracted Cao by talking to her when the inspector was pointing out a water mark detected on the first floor ceiling. Cao states that “[h]ow high was I when I was talking to my agent during the inspection”; and

(ix) The agent rebated $1,000 from her commission.

2. The Second Article

[32] Niu submits that the following statements in the Second Article are false and defamatory, in that a reasonable reader would conclude that Niu’s advertising was untrustworthy, and that Niu was not a competent real estate agent because she failed to explain to Cao the “normal operating process” permitting revisits to a home after purchase. Cao stated that:

(i) “Due to the house-buying experience in 2014, I didn’t really trust advertising”;

(ii) Cao was not provided with the chance for a “walk-in” (a revisit to the premises after signing the agreement of purchase and sale); and

(iii) The agent failed to explain the “normal operating process”, which caused Cao to “spend 1,000 Canadian dollars on fixing the hole in the wall”.

3. WeChat Comments

[33] Niu submits that the impugned statements in the WeChat Group on August 3, 2018 were false and defamatory, in that a reasonable reader would conclude that Niu was a real estate agent who “hurt” her clients, had “no conscience”, failed to “stand up” for her clients’ interests, and preferred the interests of “big” (i.e. wealthy) clients over “small” clients.

[34] In the WeChat Comments, Cao identified Niu as her real estate agent. Further, a member of the WeChat Group identified Niu as the agent mentioned in the Articles in relation to the 2014 purchase of the Property.

[35] The impugned statements include:

(i) Cao responded to another member of the group who had hired Niu as a real estate agent by asking “[y]ou were not hurt?”;

(ii) Cao referred Niu as being included in a group described as “[t]hese people are of no conscience”;

(iii) In response to a reader stating that he or she does not want people to “be deluded by [Niu’s] deceptive professionalism”, Cao agrees and adds that Niu is “still making performances”, which leads Cao to “feel that there are no rules of justice”;

(iv) One member of the WeChat Group had a positive experience with Niu. Cao suggests that the positive experience is an anomaly and that there are numerous complaints against Niu. Cao states that “[u]nfortunately, you were the only lucky one … I just received feedback from a few friends, all informing very bad experiences. She didn’t stand up for my interest … Somebody told me at backstage that minimum four people were speaking negatively of her”;

(v) Cao challenged a comment by a reader that Niu “phoned and actively fought for me”, and added that Niu discriminated against clients based on wealth. Cao stated:

Holy crap ... I really wanted to use swear words. … Really such a big difference. … After we bought the house, there were four huge holes in the wall. She said there was nothing that could be done. ... Not to mention the countless small holes. … Maybe big and small clients were indeed different. … So let’s make a summary. … The nouveau-riche can continue using her service. … Ordinary people are advised to be careful. … An awesome agent only serves awesome clients. … I complained to Miss Niu about the nails in my house. She turned around and left, telling me to file a lawsuit in court myself.

(vi) When again challenged by a member who had a positive experience with Niu, Cao states that “[m]y comments were also objective”; and

(vii) Cao inferred that Niu was not one of “those agents and service personnel who are conscientious, kind and reliable [and who] should be more promoted”.

[36] Following Cao’s comments on August 3, 2018, the member who had a positive experience with Niu questioned Niu’s competence. The member stated: (i) “Never realized Niu offended so many clients”; (ii) “I should have a good talk with her”; and (iii) “With negative comments from so many clients, there must be something in short”.

[37] Niu first learned of the Articles on August 3, 2018, when a client informed her that Cao had published a WeChat posting about Niu which made disparaging comments about her. Niu eventually saw the Articles being shared in WeChat groups of which Niu was also a member.

[38] On August 4, 2018, Cao continued to make further comments in the WeChat Group, which Nui impugns as defamatory for stating that (i) “so many people are deluded” by Niu; (ii) Niu treats her clients differently based on wealth; and (iii) Niu belongs to a group of “bad” people. Cao stated, at 8:09 am:

Yes, I heard of a lot yesterday. I don’t have the intension [sic] to speak negatively of others behind their backs, but I really couldn’t put up with it that so many people are deluded.

[39] At 8:18 a.m., Niu sent an email to Cao and advised her that “If you don’t delete the article immediately and continue to post fake information, slander me and even take personal attacks against me in the WeChat group, I will engage a lawyer next week!”

[40] In response, Cao continued to post messages with the WeChat Group that Nui submits are defamatory, in that a reasonable reader would conclude that (i) Niu is a real estate agent who is part of a group of people who had “tricked” Cao; (ii) Niu behaved as a “bad guy”; and (iii) Niu treated Cao “differently” because she was not a wealthy client. Cao stated:

All I can do is to share my experience and leave the judgment to everybody. I started the official account because I was very upset after being tricked a few times in Canada. I felt I should share the experience so that more people would be prepared and the bad guys won’t have their way. … A small piece of advice to @spralac … Try a different agent next time you want to buy a property. … And you’ll see the difference ... you need to understand our frustration when we learned we were treated differently.

[41] On the same day, after the email from Niu, Cao also made the following comments in the WeChat Group, which Niu submits are defamatory:

(i) Niu “tricked” “so many Chinese people”;

(ii) “[S]omeone from the group reported” the WeChat conversation and Articles to Niu, and that Niu “was anxious and upset” since Cao “almost dissuaded a big client to get away”;

(iii) Cao had spoken with someone from the group on August 3, 2018 and was “wondering whether [Niu] would apologize to us and pay us back the money after reading the article”; and

(iv) Cao encouraged other group members to read the Articles.

[42] By 10:09 am, Cao had posted part of Niu’s email to her. Cao then challenged Niu to bring court proceedings. Cao posted in the WeChat Comments that “I’ve already replied [sic] the email, saying that I’d be there if she wants to see me in court”, that “[e]verything I said was the truth, and there are witnesses to a lot of things”. Cao later posted that “I’m not worried about the court stuff at all”.

[43] In response to the comment of a member of the WeChat Group who offered to make a “donation” if Cao would “lose” in potential litigation brought by Niu, Cao responded “No worries. I won’t lose”.

[44] Finally, Cao suggested that she was concerned that Niu was part of a group of “some people [who] might hurt my family and my kids in outrage”, which was “the only concern once I became a mother”. Cao posted that she was “ready to call 911 the moment [Niu] contacts me”.

The requirements under s. 137.1

1. Overview of the applicable law

[45] The leading decision on the applicable law for anti-SLAPP motions is Pointes. Recently, Dietrich J. summarized the principles from Pointes in Labourers’ International Union of North America, Local 183 v. Castellano, 2019 ONSC 506, a decision reversed on appeal (2020 ONCA 71, 444 D.L.R. (4th) 183), but only with respect to the injunctive relief ordered. The Court of Appeal upheld Dietrich J.’s decision to dismiss the anti-SLAPP motion.

[46] Under s. 137.1, the following process applies to determine whether a defamation action should be dismissed as anti-SLAPP litigation:

(i) Under s. 137.1(3), a judge shall dismiss the proceeding if the defendant can satisfy the court that the proceeding arises from an expression made by the person that relates to a matter of public interest. Consequently, the initial onus is on the defendant to obtain an anti-SLAPP dismissal;

(ii) Under s. 137.1(4), if the defendant satisfies the onus under s. 137.1(3), the court shall not dismiss the proceeding if the plaintiff satisfies the court that:

a. There are grounds to believe that (1) the proceeding has substantial merit, and (2) the moving party has no valid defence in the proceedings (under s. 137.1(4)(a)), and

b. The harm likely to be or 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 (under s. 137.1(4)(b)).

[47] I now address the relevant evidence and case law for each of the above requirements.

2. Section 137.1(3): The expression and public interest requirement

[48] In the present case, there is no dispute that Cao was the source of the impugned expression that is the subject of the proceedings. She acknowledges that she is the author of the impugned statements in the Publications. Consequently, the only issue to address under s. 137.1(3) is whether the expression relates to a matter of public interest.

(i) The applicable law

[49] Dietrich J. summarized the definition of “public interest”: Castellano, at para. 33:

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

[50] I also adopt the following principles from Pointes:

(i) The definition of “public interest” must be construed “broad[ly]” and “expansively” so as to conform to the purposes of s. 137.1. At this threshold stage, the motion judge is not to consider the merits or manner of the expression, or the motive of its author: at paras. 56 and 65;

(ii) In assessing the public interest, the court must consider the subject matter of the publication as a whole and not scrutinize the allegedly defamatory statements in isolation: at para. 60, citing Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 101;

(iii) The fact that a publication contains derogatory, malicious, and false statements does not disqualify the expression from meeting the threshold public interest test under s. 137.1(3). As stated by Doherty J.A., “an expression that relates to a matter of public interest remains so if the language used is intemperate or even harmful to the public interest”: at para. 55;

(iv) “[A]n 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)”: at para. 65;

(v) Whether a topic is a matter of public interest depends on the specific circumstances of the case: at para. 59;

(vi) The motives of the author are not a relevant consideration at this stage of the analysis: at para. 65; and

(vii) A brief incidental reference to a topic capable of relating to a matter of public interest in the course of what is a lengthy exchange of communications devoted to a purely private dispute between the parties, may not be regarded as an expression relating to a matter of public interest. However, the same comment in another context may be regarded as relating to a matter of public interest: at para. 60.

[51] In essence, “[t]he distinction lies in the answer to the question – what is the expression, when placed in its context and taken as a whole, about?”: Pointes, at para. 60.

(ii) Application of the law to the present case

[52] In the present case, I find that Cao’s expression as set out in the Publications, when placed in its context and taken as a whole, is about a matter of public interest.

[53] Cao seeks to advise the community about the home purchase and sale process in Canada, including the role of a real estate agent in that process. She provides her comments to new Canadian immigrants in order to ensure that their rights and interests are properly protected.

[54] On a review of the entirety of the Articles and the WeChat Comments, the impugned statements relate to matters in which the public has a genuine stake. Some segments of the community have a genuine interest in receiving information on the subject. The fact that the comments may contain defamatory statements does not disqualify the expression from meeting the threshold public interest test under s. 137.1(3).

[55] Consequently, I am satisfied that Cao’s expression relates to a matter of public interest. Cao has met the threshold under s. 137.1(3), and the onus shifts to Niu to satisfy the court of the requirements under ss. 137.1(4)(a) and (b).

3. Section 137.1(4)(a): The substantial merit and no valid defence requirement

(i) The applicable law to satisfy the onus

[56] Once the plaintiff satisfies her onus under s. 137.1(3), the onus shifts to the plaintiff to satisfy the court that the proceeding should not be dismissed under ss. 137.1(4)(a) and (b). The word “satisfies” in s. 137.1(4) indicates that the balance of probabilities is the applicable standard of proof: Pointes, at para. 68; Castellano, at para. 42.

[57] The test for this stage requires the court to determine if it is within the range of conclusions reasonably available on the motion record, based on the evidence before the court, that the claim has substantial merit and there is no valid defence. The court set out the test in Pointes, at para. 75:

[T]he 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 s. 137.1(4)(a).

[58] In assessing the evidence on such motions, the court in Pointes cautioned that the motion judge should not approach the evidence as if it were a trial record or a summary judgment motion, at paras. 78-79:

If the motion record raises serious questions about the credibility of affiants and the inferences to be drawn from competing primary facts, 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 required by s. 137.1(4)(a). … Again, I emphasize that it is not for the motion judge to decide whether he or she thinks that the claim has “substantial merit”. It is for the motion judge to determine whether it could reasonably be said, on an examination of the motion record, that the claim has substantial merit.

[59] I now address the substantial merit and no valid defence requirements under s. 137.1(4)(a).

(ii) Whether there are grounds to believe that the defamation claim has substantial merit

[60] Both parties rely on the settled law to establish a claim in defamation: Grant, at para. 28:

A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed. … The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

[61] There is no dispute that the impugned statements were published in the Articles. Consequently, I address the issues of whether there are grounds to believe that there is substantial merit that (i) the impugned statements in the Publications were defamatory and (ii) the words referred to Niu.

(a) Whether there are grounds to believe that there is substantial merit that the impugned statements in the Publications are defamatory

[62] I find that a trier of fact could reasonably find that the impugned statements in the Publications are defamatory. Cao’s statements could lower Niu’s reputation in the eyes of a reasonable person.

[63] Cao submits that any comments about Niu in the Articles and the WeChat Group should be seen only as an expression of Cao’s dissatisfaction with Niu’s services, which could not be reasonably found by a trier of fact to be defamatory. I do not agree.

[64] Given the impugned statements from the Articles set out at paragraphs 31 and 32 above, it is within the range of conclusions reasonably available on the motion record that the statements in the Articles lower Niu’s reputation by allowing a reasonable reader to conclude that (i) Niu was an unprofessional and unhelpful real estate agent who abandoned her inexperienced client and did not keep her promises, (ii) Niu’s advertising was untrustworthy, and (iii) Niu was not a competent real estate agent because she failed to explain to Cao the “normal operating process” permitting revisits to a home after purchase.

[65] I do not repeat all of the statements in the Articles. In summary, those statements include comments such as the real estate agent (i) “didn’t realize” the scope of the excluded shelving, (ii) “took off and never looked back”, (iii) distracted Cao during the home inspection, (iv) had untrustworthy advertising, and (v) failed to explain the “normal operating process”. It is within the range of conclusions reasonably available on the record that those statements lower Niu’s reputation in the eyes of a reasonable person.

[66] Similarly, statements in the WeChat Comments reviewed at paragraphs 35 to 44 above could reasonably be viewed by a trier of fact as lowering Niu’s reputation in the eyes of a reasonable person. Those statements include (i) Niu had no conscience; (ii) Niu “didn’t stand up for [Cao’s] interest”; (iii) Niu gave preferential service to wealthy clients; (iv) Niu was part of a group who “tricked” Cao; (v) Niu was part of a group of “bad people”; and (vi) Cao was concerned that Niu could “hurt” Cao’s children in “outrage” and was prepared to call 911 if Niu contacted her.

[67] As the court held in Pointes, an anti-SLAPP motion is not a summary judgment motion or a decision on the trial record. Rather, it is a screening mechanism to ensure that there is sufficient evidence for all of the applicable requirements under s. 137.1(4) so that the claim can continue to trial. Whether Cao will succeed on her defence that the impugned statements are not defamatory is not the issue before the court. The “range of conclusions” test must be applied, and on that basis, I find that a trier of fact could reasonably conclude that the impugned statements were defamatory.

(b) Whether there are grounds to believe that the impugned statements refer to Niu

[68] Under the Pointes test, Niu must establish that a trier of fact could reasonably reach the conclusion that the impugned statements in the Publications refer to her. Based on the evidence before the court, I find that a trier of fact could reasonably reach such a conclusion.

[69] Cao submits that the words do not refer to Niu since Cao does not expressly mention Niu in the Articles.

[70] The comments in the Articles refer to a “very experienced” “female Chinese agent” who “knew a lot about the local area” and had a “blog” “on a local Chinese forum”. While Niu fairly acknowledged on cross-examination that she was not the only Chinese-speaking female agent working in Oakville with a blog in 2014, Niu relies on the full description of her in the Articles as identifying her as the particular agent.

[71] On the evidence before the court on this motion, Niu’s evidence is uncontested that at the date of the publication, she had a “unique profile” as an experienced, Chinese-speaking real estate agent in Oakville with a successful blog.

[72] Further, a member of the WeChat Group identified Niu as Cao’s agent for the 2014 purchase of the Property.

[73] In any event, in the WeChat Comments, Cao (i) explicitly identified Niu as the real estate agent who was the subject of Cao’s comments, and (ii) posted a link to the Articles.

[74] Consequently, a trier of fact could reasonably conclude that the impugned statements refer to Niu.

[75] For the above reasons, I find that a trier of fact could reasonably conclude that Niu could satisfy the elements of a defamation claim, and as such, the claim has “substantial merit” under the Pointes test.

(iii) Whether a trier of fact could reasonably conclude that Cao has “no valid defence”

(a) The applicable test to satisfy the court that there are grounds to believe that the defendant has no valid defence

[76] The onus is on the plaintiff to satisfy the motion judge that looking at the motion record through the reasonableness lens, a trier of fact 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 para. 84.

[77] There remains an “evidentiary burden” on the defendant to put a defence “in play” by filing material that is “sufficiently detailed to allow the motion judge to clearly identify the legal and factual components of the defences advanced”: Pointes, at para. 83.

[78] As with the “substantial merit” test, the court on an anti-SLAPP motion is not asked to determine the merits of the defences as if the court were deciding the matter at trial or at summary judgment. If the plaintiff can satisfy the court that a reasonable trier of fact could find that there are no valid defences, then the onus is met.

[79] In Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166, 144 O.R. (3d) 291, the motion court judge accepted that while The Globe and Mail had a “potentially valid defence of fair comment”, the case “could go either way”: at para. 16.

[80] The court in Bondfield noted that the issue could depend on whether the impugned statements were characterized as factual assertions or comment: at para. 17. The court held that even though “[t]he Globe has legitimate arguments, both that the content is not defamatory and that it has defences to any parts that are defamatory”, the anti-SLAPP motion should be dismissed because the proper test was whether “a reasonable trier could conclude that the Globe did not have a valid defence”: at paras. 19 and 28.

[81] Similarly, credibility disputes are not to be resolved on an anti-SLAPP motion, unless the court can find that no reasonable trier of fact could accept the evidence proffered by a party.

[82] In the present case, Cao has not filed a statement of defence. In her factum, Cao relies on proposed defences of (i) justification, (ii) fair comment, and (iii) qualified privilege. For the reasons that follow, I find that there is evidence that would enable a trier of fact to reasonably conclude that the proposed defences are not valid, and as such I find that Niu has met her onus under this requirement of s. 137.1(4)(a). I address each of these defences below.

(b) The defence of justification

[83] The truth of the impugned statements could be a defence relied upon by Cao at trial. However, on the motion record, there is evidence that could reasonably result in the rejection of that defence. I review this evidence below.

[84] By way of example, I review several of the impugned statements and then review the evidence which could reasonably establish that the statement is false:

(i) Cao and her husband “had no experience” in buying a home: There is evidence that prior to becoming a client of Niu, Cao had experience with another real estate agent, and had viewed several properties with him in Oakville. She had experience in negotiating an agreement of sale, and she attended at a home inspection (with the same inspector who later attended when Cao purchased a home with Niu as her agent). Cao cancelled that earlier agreement after the inspection. Cao advised Niu that Cao was dissatisfied with her experience with that prior real estate agent. Consequently, the statement that Cao was an inexperienced client may not be supported at trial;

(ii) Niu stated that she “didn’t realize” the wire shelving was excluded: There is evidence that it was Niu who drafted the clause in the APS that excluded the “WIRE SHELVING AND CURTAINS IN FRONT BEDROOM” [block letters in original], and that the parties discussed the wire shelving exclusion clause before it was signed. Consequently, Cao may not be able to prove the truth of the impugned statement at trial;

(iii) Niu “took off and never looked back” and Niu “didn’t stand up for my interest”: There is evidence that Niu made considerable efforts to address problems after closing, with detailed emails to the seller’s agent including photographs. Further, there is evidence that (i) Cao asked Niu not to continue acting on Cao’s behalf to address those issues; and (ii) Cao advised Niu that Cao would deal directly with the seller;

(iv) Cao stated that Niu “only gave us a rack … something was not right”: Cao’s position that Niu only tried to address the shelving issue by offering a single shelf is contradicted by (i) evidence that Niu purchased several shelves which she brought to the Property to install, and (ii) Cao’s cross-examination evidence in which she acknowledges that Niu brought “a few shelves”;

(v) Cao stated that she did not become aware of a water mark since she was talking to Niu during the inspection: There is uncontroverted evidence that the inspector discussed his findings with Cao and her husband, gave them his written report, and permitted Cao and her husband to ask him any questions without interference from Niu; and

(vi) Niu only rebated $1,000 from her commission: The evidence is uncontested that Niu rebated $1,680 from her commission, by cheque which was cashed by Cao’s husband.

[85] Consequently, a trier of fact could reasonably conclude that the above statements were false, and as such, dismiss a justification defence.

(c) The defence of fair comment

1. The applicable test to establish a defence of fair comment

[86] In WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 69, the court set out the requirements for a fair comment defence, at para. 28:

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

(ii) The comment must be based on fact;

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

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

(v) Even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice.

[87] The defence is only available if the facts are sufficiently stated or otherwise known to the reader so that the reader can make up their own minds on the editorial comment: WIC Radio, at para. 31.

[88] “If the factual foundation is unstated or unknown, or turns out to be false, the fair comment defence is not available”: WIC Radio, at para. 31.

2. Application of the law to the present case

[89] In the present case, a trier of fact could reasonably conclude that the fair comment defence would not succeed, based on the evidence before the court on this motion.

[90] First, Cao states in the WeChat Comments that she sets out facts, not opinions. By way of example:

(i) When challenged by a member who had a positive experience with Niu, Cao states that “My comments were also objective”; and

(ii) After advising the WeChat Group of Niu’s request that Cao remove the Articles and stop posting “fake” information, Cao responds by posting that “[e]verything I said was the truth, and there are witnesses to a lot of things.”

[91] Based on the factual nature of the impugned statements as described at paragraphs 31 to 44 above, as confirmed by Cao’s own characterization of the statements, a trier of fact could reasonably find statements in the Publications which do not contain “comment” to be protected.

[92] Further, if any opinion is based on a false factual foundation, the fair comment defence fails. As I addressed above with respect to the defence of justification, a trier of fact could reasonably conclude that (i) many of the impugned statements were false and (ii) as such, the fair comment defence is not available.

[93] Cao submits that the words can be “taken as a whole” to be a “comment” that she was dissatisfied with Nui’s services. I do not agree.

[94] There is a difference between a stating a “comment” and stating a “fact”. If a party makes a false and defamatory statement about a fact, the fair comment defence does not apply. While the overall impression from the Publications is that Cao was dissatisfied with Niu’s services, such an impression does not convert every impugned factual statement into protected “fair comment”. The purported “objective” facts relied upon by Cao can be the basis for a defamation claim on the evidence before the court, as I discuss above.

[95] Consequently, even if some of the comments are of the nature of an opinion set out in an online review, as submitted by Cao, a party cannot make defamatory statements of fact in such a review.

[96] For the above reasons, I find that a trier of fact could reasonably find that the fair comment defence is not supportable.

(d) The defence of qualified privilege

1. The applicable test to establish qualified privilege

[97] The defence of qualified privilege is available only if the defendant has “an interest or a duty, legal, social, or moral, to make [the impugned statements] to the person to whom [those statements are] made”: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 143; Lascaris v. B’Nai Brith Canada, 2019 ONCA 163, 144 O.R. (3d) 211, at para. 36.

[98] “Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself”: Hill, at para. 143.

[99] The defence is “rarely available for widely circulated publications”: Lascaris, at para. 36.

[100] “Qualified privilege may also be defeated when the limits of the duty or interest have been exceeded”: Hill, at para. 146.

2. Application of the law to the present case

[101] Cao submits that the Publications should be protected by qualified privilege since they are of the nature of an “online review”. However, Cao does not point to any authority to support that position. A trier of fact could reasonably conclude that there is no “duty” to provide an online review, and as such the defence would not apply.

[102] Further, a trier of fact could reasonably conclude that even if the qualified privilege defence could apply, many of the impugned statements exceed the limits of the duty or interest.

[103] Given that the impugned statements were sent to the initial 500 members of the group, as well as posted on Cao’s blog, and were shared by group members at Cao’s request, a trier of fact could reasonably conclude that the broad distribution vitiates any defence of qualified privilege, even if it were available.

(e) The issue of malice

[104] Both a qualified privilege and fair comment defence are defeated by malice: Castellano, at para. 48.

[105] The Supreme Court of Canada holds that “[m]alice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth”: Hill, at para. 145.

[106] Consequently, in addition to the evidence discussed above that could permit a trier of fact to reasonably conclude that the requirements for the defences of fair comment and qualified privilege have not been established, there is also evidence in the motion record that a trier of fact could reasonably rely upon to find malice.

[107] Cao acknowledged that she knew it was false to state that Niu “never looked back” or “turned around and left”, since Cao knew of Nui’s bona fide attempts to resolve Cao’s concerns upon the sale. Cao further acknowledged that she reviewed the inspection and the report without any distraction.

[108] Cao also would have known about her prior real estate experience when she stated that she had no such experience. Finally, Cao filed no evidence to provide any basis for her statement that Niu preferred the interests of wealthy clients or that Niu might “hurt” Cao or her family.

[109] I make no finding as to whether malice will be established at trial. However, I find that a trier of fact could rely on the above evidence to find malice, which would be an additional (although not necessary) basis to reject the fair comment and qualified privilege defences.

[110] For the above reasons, I find that Niu has satisfied the court that (i) there are reasonable grounds to believe that her case has substantial merit and (ii) Cao has no valid defence to the action.

4. Section 137.1(4)(b): The balancing test

(i) The applicable law

[111] Under s. 137.1(4)(b), the plaintiff must satisfy the court that the harm to be or 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.

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

[113] Harm suffered or likely to be suffered by the plaintiff as a consequence of the defendant’s expression will be measured primarily, although not exclusively, by reference to monetary damages: Pointes, at para. 88; Castellano, at para. 51.

[114] Harm to the plaintiff can refer also to non-monetary harm related to the preservation of one’s good reputation or one’s personal privacy, which has inherent value beyond the monetary value of a claim and can, in the appropriate circumstances, be considered in assessing the harm caused to the plaintiff by the defendant’s expression: Pointes, at para. 88. This is particularly so when professional reputation is at issue: Castellano, at para. 58.

[115] Some statements are so obviously likely to cause harm to a person’s reputation that the likelihood of damage may be inferred even if a plaintiff fails to lead any evidence to show any damage: Lascaris, at para. 41.

[116] In Castellano, the court held that despite a lack of evidence as to specific monetary damages, the court could rely on general damages (if more than just nominal) to find “sufficiently serious” damage to the plaintiff. Justice Dietrich held, at paras. 60 and 62:

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

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

[117] Consequently, it is not necessary to rely on special damages for loss of income. General damages can be a basis to be considered by the court: Castellano, at para. 59.

[118] On a s. 137.1 motion, the plaintiff must provide some basis upon which the motion judge can make some assessment of the harm done or likely to be done to them by the impugned expression. While this requirement will “almost inevitably include material providing some quantification of the monetary damages”, the plaintiff is not “expected to present a fully-developed damages brief”. The plaintiff must provide “sufficient evidence to draw a causal connection between the challenged expression and damages that are more than nominal”: Pointes, at para. 90.

[119] The plaintiff cannot rely on bald assertions in the statement of claim relating to damages, or on unsourced, unexplained damage claims contained in the pleadings or affidavits filed on the s. 137.1 motion. The motion judge must be able to make an informed assessment, at least at a general level, about the nature and quantum of the damages suffered or likely to be suffered by the plaintiff: Pointes, at para. 91.

[120] The plaintiff must provide material that can establish the causal link between the defendant’s expression and the damages claimed: Pointes, at para. 92.

[121] It is sufficient for the purposes of assessing harm that a plaintiff present specific and credible evidence of potentially significant damages flowing from the defamatory statements, even if the defendant can establish a “good argument that any losses suffered by [the plaintiff] are not causally connected to the alleged defamation”: Bondfield, at para. 25.

[122] Freedom of expression on matters of public interest is “well understood”. However, if the defendant asserts a public interest in protecting its expression beyond the generally applicable public interest, the evidentiary burden lies on the defendant to establish the specific facts said to give added importance in the specific circumstances to the exercise of freedom of expression: Pointes, at para. 93.

[123] The quality of the expression or motivation of the speaker are relevant factors in measuring the extent to which there is a public interest in protecting that expression. A statement that contains deliberate falsehoods, gratuitous personal attacks, or vulgar and offensive language may still be an expression that relates to a matter of public interest, but the public interest in protecting that speech will be less than would have been the case had the same message been delivered without the lies, vitriol, and obscenities: Pointes, at para. 94.

[124] In making the determination under s. 137.1(4)(b), the motion judge must appreciate that if the anti-SLAPP motion is granted, “[t]he courtroom door will be closed on the plaintiff even though the claim may have ultimately succeeded on the merits”. The “kind of case that should be removed from the litigation process through s. 137.1(4)(b)” is one where the plaintiff may have a “technically valid cause of action”, but suffers “insignificant harm”: Pointes, at para. 98.

[125] In the balancing test, the court should consider whether the litigation “smells of a genuine controversy” (in which case it should be tried on its merits) or whether the litigation has the characteristics of “SLAPP suits which reek of the plaintiff’s improper motives, claims of phantom harm, and bullying tactics”: Bondfield, at para. 28.

[126] I now consider the strength of Niu’s damages claim and then weigh it against the level of public interest arising from Cao’s expression in the Publications.

(ii) The strength of the damages claim

[127] I first review the evidence as to the financial damages Niu has suffered and is likely to suffer as a result of the Publications. I then consider the other heads of damages (reputational and emotional) claimed by Niu.

(a) The evidence of financial damages

[128] Niu filed her tax records that show significant financial loss after the Publications.

[129] Niu’s commission income for the two years preceding the Publications was $753,587.50 in 2016 and $738,717.53 in 2017.

[130] At that time, Niu had been the highest earning agent at the Right at Home Realty brokerage of 400 realtors for the years 2015, 2016, and 2017, and had received an award at her prior AimHome Realty brokerage as a top agent from 2009-2014.

[131] After the Publications, Niu did not get any “new” clients in 2018, i.e. all of her clients for the remainder of the year had a connection to her as clients who Niu either worked with previously, knew for a long time, or obtained from a referral. In contrast, Niu had been a very successful real estate agent, with efforts in the past at obtaining new clients from her blog postings (with hundreds of thousands of views), brochures, and bus stop advertising.

[132] In her affidavit, Niu states that because she got no new clients in 2018, “[m]y income dropped significantly”, and “I was forced to make a change to adjust to the new reality that I was not getting any new clients from the Chinese speaking community”. Niu’s evidence is that “I needed to market my services outside the Chinese speaking community”, and, as such, “I left the brokerage I had been with for many successful years and joined Remax About Town in January 2019”. [Italics in original text.]

[133] Niu further states that:

(i) “The advantage of this new brokerage is that I work on a team with two other agents that are not Chinese speaking. Those other agents, I hoped will introduce me to clients who have not read or heard about the defamatory publication”;

(ii) “The downside is that I have to share my listings and commissions with these other two agents. The fees that this brokerage charges me is [sic] significantly higher than previous brokerage”; and

(iii) “Unfortunately, at the time of writing this [affidavit which was sworn on July 29, 2019], my income has not bounced back to anywhere close what is used to be. As such, I am seeking financial compensation from the defendant”.

[134] Niu’s tax filings show that her commission income in 2018 was $299,740.32, a decrease of almost 60 per cent from 2017. Her commission income in 2019 was $286,772.55, a further decrease of 4 per cent from 2018, and a decrease of more than 60 per cent from 2017.

[135] Cao sought to challenge Niu’s assertions of a loss of new clients in 2018 by establishing that the real estate market declined by approximately 20 per cent in 2018. However, such a decline does not compare to the decline of almost 60 per cent in Niu’s commission earnings.

[136] Cao sought to challenge Niu’s assertion that she left Right at Home Realty to join Remax About Town in January 2019 due to a lack of new Chinese-speaking clients and a desire to expand her client base. Cao established that Niu’s social media remained exclusively in Chinese, and she continues to market herself as being “born and raised in mainland China” and “fluent in Mandarin”.

[137] Niu also agreed that she had been promoting her association with non-Chinese-speaking agents while at her previous brokerage, but indicated that she only did so “occasionally”.

[138] The above cross-examination evidence does not preclude a trier of fact from reasonably concluding that Niu suffered “sufficiently serious” financial damage from the Publications. Niu could have left Right at Home Realty to seek a better opportunity to increase work from non-Chinese clients, due to a concern that she would lose Chinese-speaking clients, while still seeking to maintain work from the Chinese-speaking community. Further, Niu is not required to maintain an English-language blog as a prerequisite to be seeking non-Chinese clients.

[139] Similarly, “occasionally” working with non-Chinese speaking agents in the past at Right at Home Realty or promoting such work on her blog in the past does not mean that Niu could not feel compelled to make an agency change after the Publications if her long-term success in the Chinese-speaking community was at risk because of the Publications.

[140] Cao submitted that the transaction reports showing the homes sold by Niu as a listing agent demonstrate that the number of homes she sold increased from 31 transactions in 2017 to 37 transactions in 2019. However, Niu gave evidence on her cross-examination that it is “impossible” to determine financial loss from transaction reports and that “the number of transactions doesn’t mean how much money I make”. Niu’s evidence was that (i) some transactions under her name would belong to the group of agents on her “team”, (ii) Niu would not receive any money from some transactions even though listed as the responsible agent, and, as such (iii) “[a]ll of my income shows from T4 [sic]. That’s the most accurate income source”.

[141] Finally, there is evidence that Niu’s past clients who were members in the WeChat Group may have become concerned about Niu’s professionalism as a result of the Publications. As I review at paragraph 36 above, one group member who was a client of Niu stated: (i) “Never realized Niu offended so many clients”; (ii) “I should have a good talk with her”; and (iii) “With negative comments from so many clients, there must be something in short”.

[142] Consequently, I find that the evidence discussed above raises more than “bald assertions” of financial damage. Niu’s claim is supported by the evidence she relies upon, even if Cao can raise defences to the claim at trial. As in Bondfield, at para. 25, even if Cao has a “good argument that any losses suffered by [Niu] are not causally connected to the alleged defamation”, “the s. 137.1 motion [is] not the place to resolve the causal connection issue as it related to the alleged damages”, since “it was enough that [Niu] presented specific and credible evidence of potentially significant pecuniary damages flowing from the defamatory statements”.

(b) The evidence of general damages for harm to Niu’s reputation

[143] In Hill, at para. 185, the court relied on the leading text of Richard O’Sullivan, Gatley on Libel and Slander in a Civil Action, 4th ed. (London: Sweet & Maxwell, 1953), at 592-93, in which the author set out the factors which can be considered in determining general damages as follows:

1451. Province of the jury. In an action of libel “the assessment of damages does not depend on any legal rule.” The amount of damages is “peculiarly the province of the jury,” who in assessing them will naturally be governed by all the circumstances of the particular case. They are entitled to take into their consideration the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and extent of publication, the absence or refusal of any retraction or apology, and “the whole conduct of the defendant from the time when the libel was published down to the very moment of their verdict. They may take into consideration the conduct of the defendant before action, after action, and in court at the trial of the action,” and also, it is submitted, the conduct of his counsel, who cannot shelter his client by taking responsibility for the conduct of the case. They should allow “for the sad truth that no apology, retraction or withdrawal can ever be guaranteed completely to undo the harm it has done or the hurt it has caused.” They should also take into account the evidence led in aggravation or mitigation of the damages.

[144] In the present case, there is evidence that:

(i) Niu was a top-ranked real estate agent in the Chinese-speaking community of Oakville, with a highly successful blog and considerable advertising;

(ii) Cao did not remove the Articles from her blog or retract her WeChat Comments until six months after publication;

(iii) The Publications were targeted at many of Niu’s prospective clients (new Chinese-speaking immigrants in Oakville and elsewhere who might use Niu’s services), and Cao encouraged the WeChat Group members to share the Articles with others similarly situated;

(iv) A former client of Niu who initially defended her on the WeChat Group began to doubt Niu’s competence as a result of the Publications; and

(v) There is some evidence that could establish malice on the part of Cao.

[145] Again, it is not the role of the court on an anti-SLAPP motion to assess general damages. However, the above evidence demonstrates a “sufficiently serious” claim by Niu for general damages, which could amount to “more than nominal” damages and could serve as the basis for Niu to proceed with her claim (as in Castellano, at para. 62).

(c) The evidence of emotional damages

[146] Niu’s evidence is that when she read Cao’s words she was “shocked” by what she read. Niu fears that members of the Chinese-speaking community in Oakville are familiar with the defamatory allegations. Niu has modified her behaviour, including not going for long walks in her neighbourhood, due to fear she will meet someone who has read the Publications.

[147] Niu’s evidence is that prior to the Publications, “I used to exercise by going for long walks in my neighbourhood. I do not do that anymore for fear that I may bump into someone who has read the article”.

[148] Niu’s evidence is that she has suffered nightmares and lost sleep. She has also lost appetite and weight, which she attributes to the impugned statements.

[149] Cao challenged Niu’s evidence by referring to a photograph of Niu walking with her mother in April 2019, which was put to Niu on cross-examination. However, Niu’s response was that she went for a walk with her mother because Niu was depressed, and that the single walk did not alter Niu’s evidence that she no longer went for a walk for exercise every day for an hour as she had in the past, even if she went for a walk “a few times” (less than five times) since August 2018 to relieve her stress.

[150] Consequently, Niu again raises credible evidence of “sufficiently serious” emotional damage.

(iii) The strength of the public interest in Cao’s expression

[151] In the present case, the public interest in Cao’s expression is not high.

[152] Cao has not offered any “specific facts said to give added importance in the specific circumstances to the exercise of freedom of expression”, which might increase the weight to her expression under the analysis in Pointes, at para. 93.

[153] Further, as I discuss above, Cao acknowledged that she knew that several of the impugned statements were false when she made them.

[154] The WeChat Comments also contain personal attacks on Niu, by statements that Niu prefers the interests of wealthy clients and “never looked back” when Cao allegedly needed her assistance. While the Publications contain no vulgar language, the attack on Niu’s reputation goes to the heart of Niu’s role as a professional real estate agent.

[155] The subject-matter of the expression is a matter of public interest since it is intended to address home purchasing and selling issues for new immigrants. However, much of the content of the Publications relates to Cao’s personal experiences, rather than any general “tips” or advice to Chinese-speaking immigrants, resulting in a lower level of public interest in such expression.

[156] Finally, the “quality of the expression” (Pointes, at para. 94) is poor. Unlike an online review conducted shortly after the purchase of the Property, Cao waited four years to set out her concerns, and then did so only from memory, with acknowledged errors in her statements. She conducted no independent research into the alleged “tips” she was providing. Cao did not seek any comment or input from Niu before publication.

[157] For the above reasons, I find the public interest in Cao’s expression to be low.

(iv) Balancing damages and public interest in Cao’s expression

[158] For the reasons I discuss above, the evidence establishes that Niu could succeed on her claims for financial, reputational, and emotional damages. She has led evidence of “sufficiently serious” harm.

[159] On the other hand, as I discuss above, there is low public interest in Cao’s expression.

[160] Consequently, I find that the public interest in allowing Niu to continue with her action outweighs the public interest in protecting Cao’s expression.

[161] Cao relies on a recent decision in 910938 Ontario Inc. v. Moore, 2020 ONSC 4553, in which the court dismissed the defamation lawsuit on an anti-SLAPP motion. I do not agree that Moore assists Cao.

[162] In Moore, the alleged defamation occurred in two online reviews posted by the defendants. With respect to the assessment of damages, the court found that the other reviews of the plaintiff “are on average, quite mediocre”, and that “[t]he before scores are not substantially different than the after scores”. The court further held that since “[a]ny person with even a slight degree of discernment would realize at once that the post was malicious and motivated by a personal vendetta”, “the credibility of the author was thoroughly undermined”: at paras. 36-38.

[163] Unlike Moore, a “person with even a slight degree of discernment” reading the Publications would not “realize at once” that Cao’s statements in the Publications were “malicious and motivated by a personal vendetta” such that Cao’s “credibility” would be “thoroughly undermined”. Cao’s comments that her statements were “objective” and the “truth” reflect the tone of her statements the Publications, contrary to the tone in Moore.

[164] Further, the court in Moore held that “there was almost a total absence of proof of damages general or specific from the defendants’ review”: at para. 39. It was in that context that the court found that “the need to protect expression … clearly outweighs the relatively minimal harm to reputation”: at para. 51.

[165] In contrast, Niu led evidence as to her financial, reputational and emotional damage which establishes harm that is sufficiently serious to outweigh any public interest in Cao’s expression.

[166] Consequently, on the facts of the case, I find that Niu has met her onus under s. 137.1(4)(b).

Order and costs

[167] For the above reasons, I dismiss the anti-SLAPP motion brought by Cao.

[168] Pursuant to s. 137.1(8), if a judge does not dismiss a proceeding under s. 137.1, “the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances”. Counsel requested the opportunity to make written submissions to address costs in light of this provision.

[169] If counsel cannot agree on costs, I will accept brief written submissions. Niu shall deliver written costs submissions of no more than four pages (not including a costs outline) by no later than September 24, 2020. Cao shall file responding written costs submissions of no more than four pages (not including a costs outline) by no later than October 8, 2020. Niu may file a reply costs submission of not more than two pages by no later than October 15, 2020.

[170] All written costs submissions shall be delivered electronically (with any authorities) to my assistant, Roxanne Johnson, with a hard copy of the materials to be delivered to Judges’ Reception. All material filed electronically for this motion shall be filed in a hard copy with the court office when it re-opens.

[171] I thank counsel for the superb quality of their oral and written submissions, which were of great assistance to the court.

GLUSTEIN J.

Date: 20200910

COURT FILE NO.: CV-18-00607956-0000

DATE: 20200910

ONTARIO

SUPERIOR COURT OF JUSTICE

LI NIU

Plaintiff

AND:

YUAN CAO a.k.a. REBECCA CAO

Defendant

reasons for decision

Glustein J.

Released: September 10, 2020

[^1]: All quoted comments are from the translation prepared by a certified translator which was filed by Cao in her motion materials.