COURT FILE NO.: CV-17-0374-00
DATE: 2021-03-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HARLAN SCHWARTZ AND RED LAKE OUTFITTERS
Mr. Nick Melchiorre, for the Plaintiffs
Plaintiffs/Responding Party
- and -
ROBERT COLLETTE
Mr. Jordan Lester, for the Defendant
Defendant/Moving Party
HEARD: January 20, 2021 at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
Supplementary Reasons on Motion
OVERVIEW:
[1] In September 2019, the Defendant brought a motion seeking a dismissal of the Plaintiffs’ action pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (commonly referred to as “SLAPP” provisions). The action involves claims for defamation, tortious interference with contractual/economic relations, and harassment which the Plaintiffs have acknowledged is not currently actionable in a civil claim. The Plaintiffs intend to amend their pleading to change the harassment claim to a claim for intentional infliction of mental/emotional suffering.
[2] The first set of reasons delivered on the motion were released on October 27, 2020: see Schwartz & Red Lake Outfitters v. Collette, 2020 ONSC 6580 (the “Reasons”). The disposition of the motion was delayed on consent of the parties pending the outcome of the companion appeals to the Supreme Court in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, and Bent v. Platnick, 2020 SCC 23, 449 D.L.R. (4th) 45.
[3] Ultimately, I dismissed those of the Plaintiffs’ claims which related to expressions made by the Defendant on various online fora. I found that these expressions related to a matter of public interest, and I was not satisfied that the Plaintiffs had met their burden to avoid dismissal under s. 137.1(4).
[4] That was not the end of the matter. Two issues required further submissions:
a. The first issue involves an expression the Plaintiffs allege the Defendant made “in an unsolicited conversation with an identifiable gentleman” in Red Lake, where the Plaintiffs carry on business, using words to the effect that “RLO is where you go for rape lessons” (the “expression”). The Defendant denies making any such expression and conceded at the argument of the main motion that such an expression, if made, cannot be said to relate to a matter of public interest.
b. The second issue pertains to the harassment/intentional infliction of mental/emotional suffering claim. The Plaintiffs allege that the Defendant has, on various occasions, yelled profanities and insults at Harlan Schwartz and acted in an aggressive manner towards him (the “conduct”). Particulars of the conduct are outlined in the Reasons, at para. 38.
[5] There is no indication in the pleadings or the materials filed that these claims are related to any public interest matter, or that the words or conduct forming the basis for the related claims were made in the course of any discussion pertaining to the public interest.
[6] The Plaintiffs claim damages for defamation, interference with economic relations, and harassment (to be amended) owing to the expression and the conduct.
[7] At the time I delivered the Reasons, I invited further submissions from counsel to assist in clarifying whether given the findings I made in the Reasons, s. 137.1 requires me to dismiss the entire proceeding, regardless of the nature of the other claims, or whether any claims related to the conduct or the expression, which are unrelated to public interest expression, must be allowed to proceed.
[8] In the Reasons, at para. 125, I framed the issue for the parties as follows:
Is the term “proceeding” as found in s. 137.1 sufficiently broad so as to permit the dismissal, without a separate motion to strike or motion for summary judgment of the following:
The harassment/emotional harm claim that is unrelated to an expression made with respect to a matter of public interest; and
To the extent that the expression is not acknowledged or proven to have been made by the Defendant, and that the parties agree, is not with respect to a matter of public interest?
[9] For the following reasons, the Plaintiffs claims arising from the expression and the conduct shall be allowed to continue.
POSITIONS OF THE PARTIES:
Position of the Moving Party (Defendant):
[10] The Defendant submits that the entire action, including all claims, must be dismissed once a court finds that a moving party has satisfied the test outlined in s. 137.1(3) of the CJA. There are some compelling arguments in favour of this position.
[11] The Defendant cites Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599, 147 O.R. (3d) 84, for the proposition that the court can rely on the definitions under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in interpreting the language of s. 137.1.
[12] The CJA does not define “proceeding”. The Rules define it as, among other things, an “action”, which in turn is defined in the CJA as a civil proceeding commenced by statement of claim. This, the Defendant argues, suggests that “proceeding” refers to the entire action and not merely claims within the action.
[13] The Defendant also submits that a purposive and contextual reading of all the provisions of s. 137.1 reveals a legislative intent that “proceeding” refer to an action or suit as a whole. The Defendant points specifically to ss. 137.1(6) and 137.1(7), which respectively deal with the freezing of pleadings on notice of the motion and the costs consequences of a dismissal order. For example, s. 137.1(7) provides that if a moving party is successful on a motion under this section, they are entitled to both the costs of the motion and the proceeding.
[14] Lastly, the Defendant urges dismissal of the entire action because the entire action can be characterized as a SLAPP. The Defendant cites Veneruzzo v. Storey, 2018 ONCA 688, 23 C.P.C. (8th) 352, for the proposition that this court should not look to each of the Responding Parties’ claims in isolation but should instead consider the suit as a whole. The Defendant urges this court to ask, “what expression is the proceeding actually about?” Given my earlier conclusions about the nature of the Plaintiffs’ other claims, the Defendant submits that the action should not be allowed to continue because of “interspersed references to peripheral claims”.
Position of the Responding Parties (Plaintiffs):
[15] The Plaintiffs submit that the term “proceeding” should not be defined so broadly as to permit dismissal of the entire action. They cite Rizvee v. Newman, 2017 ONSC 4024, in support of their position. At the very least, they submit that this court is not required to dismiss the entire action.
[16] The Plaintiffs further submit that it is not the purpose of s. 137.1 to protect parties from claims that do not relate to matters of public interest. They submit that since the expression at the heart of the remaining claim does not relate to a matter of public interest, s. 137.1 is not engaged. As such, it is not open to this court to dismiss this claim.
[17] The Plaintiffs reject the Defendant’s characterization of the Court of Appeal’s holding in Veneruzzo. They submit that Veneruzzo stands for the principle that courts must not “cherry-pick” isolated sentences in determining whether a claim meets the public interest threshold in s.137.1(3). In other words, they submit that Veneruzzo is about looking at the expressions as a whole, not the entire action as a whole.
[18] Lastly, the Plaintiffs submit that I should be guided by case law on partial summary judgment. They argue that I am unable to adequately determine these claims on the merits, in part due to the incompleteness of the evidentiary record. They further submit that the Defendant has not plead the remedy of partial summary judgment in their motion materials. They add that to define “proceeding” as encompassing the entire proceeding would not further the goal of reaching a just and expeditious adjudication on the merits, contrary to r. 1.04(1) and the Supreme Court’s directions in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.
Law and Analysis
[19] I agree with the Plaintiffs that the dismissal of proceedings under s. 137.1 is not an “all or nothing” situation. I find that I am not bound or required to dismiss the entire action simply because I have found that a substantial part of the action, which I have dismissed, is founded upon public interest expression. As Justice D. Fitzpatrick observed in Rizvee, at para. 141, a rigid “all or nothing” interpretation of s. 137.1 would defeat the purpose of the provisions.
[20] Having said this, I appreciate that Rizvee is not determinative of the issue before this court. The issue in Rizvee was whether the court was precluded from dismissing part of the action if only some of the claims were found to be unrelated to matters of public interest. In other words, that question was in the negative of that which is before this court. The question before me is whether, being unable to conclude that certain of the Plaintiffs’ claims do not engage matters of public interest, I nonetheless have the discretion to dismiss entire action.
[21] For the following reasons, I conclude that unless the remaining claims can be said to be grounded in matters related to public interest expression, I do not have the discretion to dismiss them pursuant to s. 137.1, despite having previously found that the entire action is motivated by a desire to silence public interest expression by the Defendant.
Defining “Proceeding” by External Reference:
[22] The term “proceeding” is not explicitly defined in the Courts of Justice Act. Counsel for both sides were unable to point this court to any jurisprudence which has definitively interpreted “proceeding” as it is used in ss. 137.1 to 137.5 of the CJA.
[23] There are varying authorities that have advocated for a liberal interpretation of “proceeding”. In Aroland First Nation v. Ontario (1996), 1996 CanLII 7961 (ON SC), 27 O.R. (3d) 732 (Gen. Div.), at p. 735, Justice Wright held that the term “proceeding” was not restricted to actions that had been commenced, but could include inchoate actions, as well. In Imoney Corp. v. Quebecor Communications Inc., 2002 CanLII 8338 (Ont. Sup. Ct.), at para. 15, the court accepted that “proceeding” in s. 106 of the CJA could capture motions for summary judgment. In Olympia & York Developments Ltd., Re (1996), 1996 CanLII 8017 (ON SC), 29 O.R. (3d) 626 [Gen. Div. (Commercial List)], [1996] O.J. No. 2389 at para. 19, the court opined that:
There is nothing in the Courts of Justice Act, supra, itself which defines ‘proceeding’ in the narrow fashion outlined in the Rules of Civil Procedure, and I have no difficulty in giving the concept a broad enough definition, outside of the Rules context, to encompass the type of matter that I have described in a [Companies’ Creditors Arrangements Act] application.
[Citations omitted.]
[24] On the other hand, there have been certain contexts where the courts have preferred a narrower approach to the interpretation of the term. For example, the court in Finlayson v. GMAC Leaseco Ltd. / GMAC Location Ltée (2006), 2007 CanLII 4317 (ON SC), 84 O.R. (3d) 680, was of the view that “proceeding” should be defined narrowly with respect to the operation of r. 13.01 and the question of whether motions were captured by the term.
[25] Given the broad range of contexts in which the term “proceeding” can appear, and the varying interpretations that have arisen in those contexts, it is necessary to embark on a further analysis of the term. It should be noted that this analysis is strictly for the purposes of s. 137.1 of the CJA and the issue as framed above. Any reference to the use of the term as it appears in other provisions is only to provide context for this court’s analysis.
Principles of Statutory Interpretation:
[26] It is well settled law that the starting point for an exercise of statutory interpretation begins with the approach, first formulated by Elmer Driedger and since adopted by the Supreme Court of Canada, that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at p. 41.
[27] The court may also rely upon s. 64(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, for the principle that “[a]n Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.”
[28] Another relevant principle of statutory interpretation is that the same words are to be given the same meaning throughout a statute: see, for example, R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 S.C.R. 1378, at p. 1387. By extension, it is another principle of statutory interpretation that, where the Legislature has specifically employed different language or words, a different meaning was likely intended: see Frank v. The Queen (1977), 1977 CanLII 152 (SCC), [1978] 1 S.C.R. 95, at p. 101.
[29] These presumptions are not absolute. A purposive or contextual analysis may reveal compelling reasons for rebutting the “same words, same meaning” rule: see Bapoo v. Co-Operators General Insurance Co. (1997), 1997 CanLII 6320 (ON CA), 36 O.R. (3d) 616 (C.A.), at pp. 626-27; see also R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at paras. 63-66. As noted in Steele, at para. 65, many statutes have long legislative histories that have seen numerous amendments over a span of many years. I note that the lineage of the CJA traces back 140 years to the Ontario Judicature Act, 1881. What exists today is the result of numerous iterations, made under the direction of various governments who were addressing the issues affecting the administration of justice in Ontario as they were at the time. The very provisions at issue here exist as an example of this Act’s evolution.
How Should “Proceeding” be Defined in this Context?
[30] Section 137.1 of the CJA reads:
Purposes
137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.
Definition, “expression”
(2) In this section, “expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.
Order to dismiss
(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
No dismissal
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
No further steps in proceeding
(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.
No amendment to pleadings
(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,
(a) in order to prevent or avoid an order under this section dismissing the proceeding; or
(b) if the proceeding is dismissed under this section, in order to continue the proceeding.
Costs on dismissal
(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.
Costs if motion to dismiss denied
(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.
Damages
(9) If, in dismissing a proceeding under this 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.
[31] The dictionary definition for “proceeding” provides an easy starting point for the analysis. The Oxford Canadian Dictionary, 2nd ed. (Toronto: Oxford University Press, 2006), defines proceeding as (1) “an action or piece of conduct”; and (2) “an action at law; a lawsuit”. The term is given a much broader definition in Black’s Law Dictionary, 10th ed. (St. Paul, Minnesota: Thomson Reuters, 2014), which states that a proceeding can include, amongst other things, “the regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment”.
[32] The Defendant has urged the court to look to the use of the term in other contexts within the CJA. It is true that, on first reading, many of the provisions of the CJA that employ the term use it to mean something akin to that part of the definition provided above from Black’s. This accords with the use of the term in s. 1 of the CJA and, at first blush, would appear to support the position of the Defendant.
[33] This is further bolstered by the fact that various provisions of the CJA appear to differentiate between the proceeding as a whole and the steps taken therein, signaling an intention that a distinct meaning was intended, per the principle cited above in Frank. For example, s. 66(2)(q) refers to “references in a proceeding or issues in a proceeding”. Section 102(3) refers to “a motion or proceeding for an injunction”. Sections 110(1) and 131(1) both use the language of a “proceeding or step in a proceeding”. Section 137.1 also uses both the term “proceeding” and “steps in a proceeding”: see, respectively, ss. 137.1(3) and 137.1(5), for example. The deliberate use of different language in different contexts would tend to imply that a distinction in their meaning was intended by the Legislature in the context of s. 137.1, as well.
[34] There is some merit to affording the provisions at issue in this case a broad interpretation. The Supreme Court in Pointes and the Court of Appeal for Ontario in the recent decision of Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 25 [“Subway”], both make clear that a liberal and flexible approach is to be taken in interpreting and applying these provisions.
[35] Furthermore, the purpose of these provisions, as identified in s. 137.1(1), is to prevent “the use of litigation” and to mitigate the risk that debate will be “hampered by fear of legal action.” Though not expressly referred to as such in the legislation, the common label for the harm the Legislature was seeking to address was the use of “strategic” litigation. Strategic litigation might plausibly include the intentional use of extraneous claims outside the “public interest” aspect simply to frustrate the application of these provisions. It is clear the Legislature contemplated improper conduct by a party when it included, in s. 137.1(9), a provision to recover damages where it is found a party brought their claims “in bad faith or for an improper purpose”. It is therefore plausible that the Legislature also contemplated that parties might be using such extraneous claims as a means to silence a defendant.
[36] The causal element to the language of the provision may also support this conclusion. Section 137.1(3) states that the court must be satisfied that a proceeding “arises from” an expression related to a matter of public interest. The Supreme Court in Pointes briefly touched on this language, at para. 24:
Second, what does “arises from” require? By definition, “arises from” implies an element of causality. In other words, if a proceeding “arises from” an expression, this must be that the expression is somehow causally related to the proceeding. What is crucial is that many different types of proceedings can arise from an expression, and the legislative background of s. 137.1 indicates that a broad and liberal interpretation is warranted at the s. 137.1(3) stage of the framework.
[Footnote omitted.]
[37] At footnote 1 of the Pointes decision, Justice Côté further opines that a precise level of causation does not need to be identified, “as courts have consistently been able to grapple with and apply the ‘arising from’ standard”. In support of this position, Justice Côté references four cases: Allstate Insurance Co. of Canada v. Aftab, 2015 ONCA 349, 335 O.A.C. 172, 49 C.C.L.I. (5th) 173; Quick v. MacKenzie, 1997 CanLII 2230 (ON CA), 33 O.R. (3d) 362 (C.A.); New Brunswick v. O’Leary, 1995 CanLII 109 (SCC), [1995] 2 S.C.R. 967; and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420.
[38] There is interesting language in some of these cases that is worth noting. The O’Leary case was heard as a companion case to Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929. An issue in both those cases involved the exclusive jurisdiction of provincial labour relations legislation over disputes “arising from” the interpretation, application, administration, or violation of a collective agreement. In O’Leary, at para. 3, Justice McLachlin (as she then was) held that “[w]hether a matter arises out of the collective agreement is to be determined having regard to the essential character of the dispute and the provisions of the collective agreement.” In her reasons in Weber, at para. 48, she added:
[T]he analysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issues which may be framed. The issue is not whether the action, defined legally, is independent of the collective agreement, but rather whether the dispute is one ‘arising under [the] collective agreement.’ Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal, and the courts cannot try it.
[Emphasis in original.]
[39] In light of this causal element, is it plausible that the Legislature intended these provisions to allow for the discretion to inquire into and characterize the “true” nature of the proceeding as a whole? In other words, is it plausible that the Legislature intended the courts to ask the very question the Defendant submits it should ask, namely “what is the proceeding really about?” Applying a parallel from Weber, should courts look to the “facts surrounding the dispute” to determine whether the entire dispute arises from expressions that relate to matters of public interest? I agree to the extent that the court should look at the facts grounding the claim, but not to the extent that the court should be attempting to assess motive. If facts underlying the other claims are not grounded in public interest expression, I cannot conclude that the legislature intended for the dismissal of those claims.
[40] The Defendant has cited Veneruzzo in support of their conclusion that the entire action should be dismissed. In particular, the Defendant points to paragraphs 20 and 21 to say that courts are not to consider claims in isolation. However, in examining the Court of Appeal’s reasons, the Defendant appears to be stretching the holding in Veneruzzo beyond its intended purpose. What was really at issue in Veneruzzo was the motions judge’s characterization of the subject matter of the expressions as a whole, and whether the motions judge was required to engage in a line-by-line characterization of the Facebook posts that gave rise to a defamation claim. The issue was not whether courts should look beyond individual claims to characterize the primary impetus for the suit as a whole. The Court of Appeal’s comments, at para. 21, are reflective of this:
I agree with the respondents that the motion judge was not obliged to summarize every comment that the appellant made in the posts to demonstrate that he considered all of the comments in the determining the subject matter of the expression that gave rise to the claim. The passages excerpted by the motion judge at para. 13 of his reasons refer to the parts of the posts that were most germane to his assessment […].
[Emphasis added.]
[41] Nonetheless, this broad characterization of “proceeding” derived from the context provided by the causal language found in the statute is attractive. On its face, it would provide another avenue for courts to screen out frivolous claims. However, problems arise when this interpretation is carried through and applied. It is for the following reasons that this court concludes it does not have the discretion to dismiss an entire action where there are specific claims that do not engage the public interest component of s. 137.1(3).
[42] First, it must be noted that the ability for a party to vindicate their rights through an action in the courts is “a fundamental value in its own right in a democracy”: Pointes, at para. 81. More than that, the protection of that right is also an implied objective of these provisions, and of the CJA as a whole. Section 137.1(4)(b) presumes, by its wording, that there is a public interest in protecting this right. The Supreme Court in Pointes recognized no less, at para. 46: “[Section] 137.1(4) engages the competing interest at play – ensuring that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to pursue it”.
[43] Second, the Supreme Court, in reference to the weighing stage in s. 137.1(4)(b), has signalled a clear intention to move away from an inquiry into the “indicia of a SLAPP suit”. As Justice Côté wrote in Pointes, at para. 79:
I am of the view that these four indicia may bear on the analysis only to the extent that they are tethered to the text of the statute the considerations explicitly contemplated by the legislature. This is because the s. 137.1(4)(b) stage is fundamentally a public interest weighing exercise and not simply an inquiry into the hallmarks of a SLAPP. Therefore, for this reason, the only factors that might be relevant in guiding that weighing exercise are those tethered to the text of s. 137.1(4)(b) […].
[Emphasis in original.]
[44] In Platnick, at para. 171, Justice Côté characterizes these words more assertively: “This Court in Pointes Protection squarely rejects any inquiry into the hallmarks of a SLAPP”. Any attempt to characterize the nature of the proceeding as a whole seems contrary to this express instruction.
[45] Third, it is unlikely the Legislature intended for courts to embark on an inquiry into the impetus for a plaintiff’s entire action at the very first stage of the analysis. By all accounts, the courts have consistently interpreted the first stage to be a threshold inquiry with an easy burden for moving parties to meet. Both “expression” and “public interest” have been given extremely generous interpretations by the courts to reflect this. Any inquiry into the nature of an action as a whole, on the other hand, would likely require moving parties to assert, and courts to examine, evidence of what motivates a plaintiff’s suit at the initial stage of the inquiry.
[46] This also raises a question about the appropriate causal threshold to be met. The Supreme Court in Pointes seemed to imply this was a trivial exercise. Determining whether a particular claim arises from a particular cause of action, in most cases, might be such an easy exercise. Determining whether an action as a whole arises from a particular expression or set of expressions, on the other hand, is considerably more difficult. It would be easy to imagine the potential credibility issues a motion judge would have to sort through if they had to inquire into the subjective motives of individual plaintiffs.
[47] Fourth, it seems unreasonable that a plaintiff should have to bear the burden of demonstrating substantial merit and the grounds to believe there are no valid defences for claims which are not “grounded” in an expression on a matter of public interest. This seems to be an unfair burden for the plaintiff to have to bear when the underlying conduct of the defendant does not engage the purposes of s. 137.1.
[48] Fifth, how does the harm alleged to have been suffered from these extraneous claims factor into the balancing exercise? If a motion judge is contemplating dismissal of the entire suit, harm suffered by the plaintiff as a result of these extraneous claims must be given some consideration. Yet the Supreme Court has expressly directed that “[t]he statutory provision expressly contemplates the harm suffered by the responding party as a result of the moving party’s expression”: see Pointes, at para. 68 (emphasis in original). This language would seem to preclude a motion judge from considering any harm that does not flow from an expression on a matter of public interest, as would be the case with any truly separate and distinct claims.
[49] Lastly, to extend the potential protections of s. 137.1 to include civil claims between private parties which are of a strictly personal nature and unrelated to public interest expression seems to stretch the Legislature’s intent too far. These provisions are meant to foster participation in debates on issues of public interest and to discourage the use of litigation as a means of unduly limiting that expression. It is clear the expression is the thing the Legislature intended to protect, not harmful acts of a purely personal and private nature. It would be an unjust result if such a claim were dismissed with prejudice, especially given the Supreme Court’s instruction that only the harm causally related to expressions can be considered in the weighing exercise. That plaintiff would then have no further recourse for their losses. On the other hand, if certain claims proceed, the defendant will still have other summary procedures they can pursue. One has the potential to result in irreparable harm, while the other does not. That harm may be justified where that claim is targeting expressions worthy of protection and thus engages the purposes set out in s. 137.1(1), but there is no justification for such an outcome otherwise.
[50] I agree with the Defendant to the extent of their submissions on the purpose behind provisions like ss. 137.1(6) and 137.1(7). However, those purposes are still effectively fulfilled by these provisions when considered in terms of specific claims, rather than in terms of an entire suit. For example, s. 137.1(6) would still operate to prevent a party from amending their pleadings as they relate to the claims challenged in the motion for dismissal. No doubt, both the courts and opposing parties will be both vigilant and poised to deal with any attempts to circumvent any “partial freeze” on the amendment of pleadings where they are used to escape dismissal under s. 137.1.
[51] Respecting costs, there is nothing in s. 137.1(7) that ousts what has always been a broad discretion enjoyed by the courts in assessing an appropriate award. Any difficulties that might arise in determining the appropriate award of costs where claims are selectively dismissed are problems that can be easily overcome with the assistance of counsel. Counsel have often been called upon to estimate the proportion of their time spent dealing with discrete issues and they are more than capable of doing so (for example, lawyers have long provided estimates for tax purposes with respect to the amount of time spent securing support or unpaid wages). No one is in a better position to know these proportions than counsel and while it may require more extensive accounting on their part, that burden is hardly an unbearable one.
[52] I am also aware of the potential implications that might arise from considering the provisions in terms of separating those claims grounded in public interest expression and those that are not: plaintiffs could try to include frivolous claims, as is alleged in this case, to avoid the operation of a dismissal of the case in its entirety pursuant to s. 137.1. As is the risk that any litigant takes if it advances a frivolous and unmeritorious claim to either harass another or accomplish an ulterior purpose through the litigation process, this course of action is not without substantial risk of exposure to significant costs consequences.
[53] In conclusion, while the interpretation urged by the Defendant is attractive, it raises a very real risk of interference with claims that do not deal with conduct or expression deemed in the public interest. I cannot conclude that the Legislature intended to protect defendants from these claims. Thus, where there are claims that are clearly separate and distinct from claims that do engage s. 137.1, the court cannot dismiss the remainder of the action by resort to those same provisions simply because it concludes, as is the case here, that “most” of the action pertains to public interest expression.
Comments on Alternative Relief on s. 137.1 Motions:
[54] In Pointes, at para. 52, the Supreme Court was clear that a motion under s. 137.1 is distinct from both motions to strike and motions for summary judgment, whether partial or otherwise. I agree with the Plaintiffs’ submissions to the extent that it would be inappropriate for this court to undertake summary judgment or order pleadings struck in this case, when such relief was not sought by the Defendant. However, that is not to say that this court would have declined to determine such questions had they been properly before the court.
[55] There is nothing in the Supreme Court’s reasons in Pointes or Platnick, nor in the express language of the statute or the Rules, that would bar a party from pleading alternative relief on a motion under s. 137.1. It may be that, in certain circumstances, the timing of a motion under s. 137.1, together with the effect of s. 137.1(5), will make it impossible to reach summary judgment in a matter. This concern may not be as pressing on a motion to strike pleadings, where evidence is generally not considered by the court. Regardless, that will be a matter to be assessed in each individual case and may require a party to strategically decide when such a motion may be appropriate.
Costs
[56] In the first set of Reasons, I ordered that the Defendant shall have their costs on the disposition of the motion “to [that] point”: see para. 127. Quantum must still be determined but the parties were awaiting the outcome of this decision. If the parties cannot agree as to costs overall, an appointment may be scheduled before me for a half hour to hear submissions.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: March 22, 2021
COURT FILE NO.: CV-17-0374-00
DATE: 2021-03-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HARLAN SCHWARTZ AND RED LAKE OUTFITTERS
Plaintiffs/Responding Parties
- and –
ROBERT COLLETTE
Defendant/Moving Party
SUPPLEMENTARY REASONS ON MOTION
Nieckarz J.
Released: March 22, 2021
/cjj