COURT FILE NO.: CV-20-00001699
DATE: 20211105
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Laurie Thatcher-Craig, John Craig and Clearview Valley Farms Inc.
Plaintiffs/Responding Parties
– and –
The Corporation of the Township of Clearview
Defendant/Moving Party
Gavin H. Leitch, for the Plaintiffs/ Responding Parties
Sheldon Inkol, for the Defendant/Moving Party
HEARD: July 29, 2021
reasons for decision
DI LUCA J.
[1] The plaintiffs are farmers who operate a hops farm in the Township of Clearview. Their business was initially successful, and it received support and promotion from the defendant, the Corporation of the Township of Clearview (“the Township”). Eventually, the plaintiffs decided to expand their farm business into an agri-tourism enterprise with a small on-site brewery. They were met with public resistance and ultimately, their plans were not approved by the Township. Unfortunately, the once positive relationship with the Township soured.
[2] While the plaintiffs have a number of complaints with how they were treated, their principal complaint is that the Township defamed them by posting online a number of unsolicited and unvetted public comments which damaged not only their reputation but also caused significant financial losses. The plaintiffs have commenced an action pleading defamation, negligence and breach of fiduciary duty.[^1]
[3] The Township brings this motion seeking a dismissal of the entire action under s. 137.1 of the Courts of Justice Act. The Township argues that this action arises from expressions made by members of the public that relate to matters of public interest. It further argues that there is good reason to believe that the litigation will unduly limit expression on matters of public interest and will hamper participation by the public in debates on matters of public interest. Lastly, it argues that there are no grounds to believe: that the action has substantial merit, that the Township has no valid defence, or that the harm alleged to have been suffered by the plaintiffs is sufficiently serious that the public interest in permitting the action to continue outweighs the public interest in protecting that expression.
[4] For the reasons that follow, the motion is allowed in part. The claim for negligence is dismissed. The claims for defamation and breach of fiduciary trust can proceed to trial.
(i) Background to Litigation
[5] Laurie Thatcher-Craig and John Craig are spouses and the owners/operators of Clearview Valley Farms Inc. After city-based professional careers in marketing and engineering, they decided to switch gears and move to the country to start a family run farm business.
[6] Hops are a speciality crop that requires significant financial investment and farming expertise. Years ago, hops were commonly cultivated in Ontario. Over time, the market shifted and hops cultivation became mainly restricted to Germany and eastern Washington in the United States.
[7] Sensing a business opportunity given the popularity of locally brewed craft beer, the plaintiffs settled on hops as their crop of choice. The plaintiffs hoped to be leaders in reviving the cultivation of hops in Ontario. They also hoped to eventually develop their farm business into an agri-tourism destination.
[8] In October of 2011, they purchased their 74-acre farm in Nottawa, which is within the jurisdiction of the Township. Through significant financial investment and time commitment, the plaintiffs started a hops farm that enjoyed initial success. By 2015, the plaintiffs had received the Premier’s Award for Agri-Food Innovation Excellence and the Minister’s Award. They were also featured in an Agricultural Innovation Brochure issued by the Township and received an official Letter of Support from a Township councillor commending the farm’s success.
[9] Towards the end of 2015, the plaintiffs decided to build a permanent home for themselves on the farm property. They filed an Application for Minor Variance which resulted in a Committee of Adjustments meeting on December 14, 2015. Just prior to the meeting, the Township disclosed three letters from local residents who were opposed to the application. The identity of the authors was redacted, though the letters were read into the record during the meeting. The content of the letters mainly relate to the disruptive and annoying nature of the farming practices taking place at the plaintiffs’ property. One of the letters alleges that the plaintiffs are using a well tainted with “arcinic.” The letter also includes allegations that the plaintiffs are spraying crops in the early morning hours, making very loud sounds with equipment and using dangerous chemicals that are making animals and persons sick. The letter concludes with the following comment, “if there is a way we can make bring [sic] these people down from there [sic] high horse please call me…”
[10] According to Ms. Thatcher-Craig, the Committee of Adjustments meeting devolved into personal attacks and questions about the permitted farming practices at the property. Notwithstanding the opposition, the application was approved and referred to Town Council for ratification. Following the completion of the application, Ms. Thatcher-Craig complained about the unfolding of events to then Town Councillor, Mr. Doug Measures. In an email dated January 6, 2016, Mr. Measures indicated that in view of how events unfolded “we will be offering some retraining and better consultation for committee members.”
[11] By 2018, the farm business was operating with continued success and it was presented with an Environmental Stewardship Award by the Nottawasaga Valley Conservation Authority. The plaintiffs worked on developing the agri-tourism aspect of the business and were regularly hosting tours of their facilities. They decided to move forward with plans to expand the business with an on-site micro-brewery and small retail space.
[12] The plaintiffs next commenced the process of obtaining the necessary approvals from the Township. In order to do so, the plaintiffs had two options; (1) they could bring a Zoning By-Law Amendment application seeking an amendment permitting a brewery on their property; or (2) they could submit a Site Plan application on the basis that a brewery was already a permitted use. The Township very clearly and repeatedly took the position that a By-Law Amendment was required as a brewery did not fit within the zoning uses permitted at that location. The plaintiffs disagreed and maintained that all that was required was a Site Plan application. As it turns out, this difference of opinion signalled the start of the conflict that underpins this litigation.
[13] At the suggestion of the Township, the plaintiffs retained planning consultants to assist with the application process. The plaintiffs initially retained Ms. Kristine Loft who commenced an application for re-zoning as suggested by the Township. However, it appears that Ms. Loft disagreed with the plaintiffs in terms of the scope of the supporting material needed and, as a result, her retainer came to an end.
[14] The plaintiffs next retained Mr. Michael Wynia, who was formerly the Director of Planning for the Township and had been involved in drafting the Township’s Zoning By-Law and Site Plan Control By-Law and related procedures.
[15] Mr. Wynia prepared and submitted a Site Plan application using the prescribed form. The form contains a consent provision granting the Township authority to make certain information related to the application public. It also purports to release and fully indemnify the Township for doing so.
[16] In signing the form on behalf of the plaintiffs, Mr. Wynia also warranted that he had reviewed the Development Application Guideline that accompanies the form. The Guideline states in part:
Public consultation and engagement is an integral part of the planning process. Public consultation is mandated by the Planning Act for most approvals processes, including for amendments to the Official Plan and Zoning By-Law, and for subdivision/condominium applications. At least one public meeting will be part of your approvals process.
[17] The Site Plan application was submitted on September 26, 2018. In accordance with the position taken in advance of filing, the Township declined to consider the application. Ms. Mara Burton, the Township’s planner, indicates that in 30 years as a municipal planner she had never seen an instance where a Site Plan application was submitted for a use that was not a permitted use within the Zoning By-Law.
[18] Instead of processing the application, the planning department began preparing a Report to Council on the issue of whether the proposed brewery was a permitted use. According to Ms. Burton, this was done with the interests of the plaintiffs in mind and with a view to keeping their costs down.
[19] As the Site Plan application was not processed within 30 days, the plaintiffs commenced an “appeal of non-decision” before the Local Planning and Appeal Tribunal (“LPAT”) pursuant to s. 41(12) of the Planning Act.[^2]
[20] The Township then processed the application and a report was placed on the website and before Township Council for consideration at a meeting scheduled for November 19, 2018. The report concluded that a brewery was not a permitted use and recommended that the plaintiffs apply to the Superior Court for an interpretation of the by-law if they disagreed with the report.
[21] While the Township Council meeting scheduled for November 19, 2018 was a public meeting, when the issue of the plaintiffs’ application was tabled, Council proceeded in camera and off the record, citing the outstanding LPAT appeal as the reason for excluding the public. Council ultimately adopted the recommendations in the report.
[22] At the November 19, 2018 meeting, Council also considered a Housekeeping By-law aimed at making certain changes to the Zoning By-law. The purpose of the amendments was nominally to add clarity and consistency to the by-law. The plaintiffs opposed the Housekeeping By-law as they saw it as an attempt to thwart their plans regarding the farm and proposed brewery.[^3]
[23] On November 22, 2018, an article about the plaintiffs’ proposed brewery appeared in the local newspaper, The Connection, as well as in other newspapers. It appears that some area residents first learned of the Site Plan application as a result of the article. Further, some residents wrote to the Township expressing various comments about the plaintiffs’ specific plans and more generally about the plaintiffs’ neighbourly and farming practices. The comments also took the Township to task for failing to provide adequate notice to the public of the Site Plan application. The comments were received between November 24, 2018 and January 16, 2019.
[24] The Township did not solicit these public comments. It did, however, post all of the comments on the Township’s website along with the Site Plan application. The Site Plan application was posted online on November 26, 2018. The comments were posted online on December 18, 2018, with the exception of one additional comment that was received and posted on January 16, 2019. In total, there were nine comments posted online, including one from Mr. Wynia on behalf of the plaintiffs. The plaintiffs were not advised that the public comments had been posted online. The Township took no steps to review, vet or edit the comments.
[25] By early February 2019, the plaintiffs noticed a significant and unexpected drop-off in customer contract renewals. On February 4, 2019, they discovered that the public comments sent to the Township were available online on the Township website and could be downloaded, printed and/or shared via email, Facebook, LinkedIn, and Twitter. The plaintiffs also discovered that if “Clear Valley Hops” was searched on Google, the search results provided immediate access to the material published on the Township’s website. Upon making these discoveries, the plaintiffs believed they had discovered the reasons for the sudden drop off in business.
[26] On February 11, 2019, the plaintiffs wrote to the Township to officially withdraw the Site Plan application. This letter referenced the nature of the public comments that had been posted online. The letter also requested that the Township remove Clearview Valley Farms from any marketing brochures “expounding the virtues of doing business in Clearview Township.”
[27] On February 19, 2019, Mr. Wynia followed up with a further request to the Township seeking the immediate removal of the public comments from its website. He expressed concerns that the comments were false and damaging and that the plaintiffs had no ability to respond to the comments.
[28] Initially, the Township took the position that the Site Plan application could not be withdrawn because it was before LPAT. However, once the LPAT appeal was withdrawn, the Township agreed to permit withdrawal of the Site Plan application.
[29] At some point between March 1 and March 9, 2019, the public comments were taken off the Township’s website.
[30] On December 9, 2020, the plaintiffs commenced this action claiming $11,300,000 in damages in relation to the publication of the public comments and in relation to their treatment by the Township.
(ii) The Allegedly Defamatory Public Comments
[31] The Statement of Claim does not clearly set out the passages of the public comments alleged to be defamatory. However, in the factum filed on the motion, the plaintiffs submit that the passages below represent the “main thrust” or “sting” of the defamation claim. The excerpts are identified by date and organized in chronological order and set out verbatim with emphasis added:
November 25, 2018
“Now he wants to build a stinky beer brewery to contaminate the air of his neighbours, whom he clearly has no respect for”
Date Unknown
“… by their bully techniques to land ownership… call it what it is! a trench meant to trap, injuring dogs, deer and other wildlife…I know for a fact that these lands have tested positive for apple spray residue, again contrary to what the proponent has answered… this is also not accurate nor truthful!”
November 28, 2018
“…my question is where does fraud and deception come in to play with clearvalley hops. There pitch to clients its family run and family operated But in reality there wsib clams are high they pay flat rate for bus load of seeks and Pakistan workers who set up there farm for season…they store there products in freezer but infact it is in a barn all winter…its lie after lie from social media to newspapers…and are more a ware of the dangers from laurie and john and clearvalley hops…LAURIE AND JOHN have made bully techniques to anyone stepping foot on there property…WHERE DOES THIS FAILING FARM END…they are not skilled enough to run a farm and a brewery…the son is using it to pick up and drop of workers dropping off trucks and inclosed trailers having own c can for storage and dumping waste from jobsites…BE AWARE OF WHAT CLEAR VALLEY HOPS IS REALLY LIKE. WHERE THERE NOT HIDING BEHING FAKE AWARDS AND BLIND SIDED ARTICLES”
2015, Repeated and Published November 28, 2018
“…no one knows what he is spraying and animals have been sick and neighbours have had to go to the doctors….and the well that had arcnic in it that he has his sprinkler system hooked up to, to spray his crops at night….that to me says they don’t know what they are doing and they spraying to much… water enters his property and exits his property and who knows what he is throwing or spraying round it”
November 30, 2018
“… it should be a major red flag that the applicant is trying to circumvent the due process (either through ignorance, arrogance, or both) by taking this to the LPAT prior to even having an amendment application. This raises the question of what the “real” motives are and always have been”
December 5, 2018
“…hopefully once this application is denied, the requirement for a qualified professional to attend the site and evaluate for the above notes issues should be properly addressed and confirmed for the heath of all the village and regulated areas”
January 16, 2019
“…further entrench this obnoxious operation is unacceptable…we have experienced nothing but an obnoxious operation run by an obnoxious operator”
(iii) The Test and Legal Principles on a Section 137.1 CJA Motion
[32] Section 137.1 of the Courts of Justice Act creates a judicial screening mechanism to weed out lawsuits that unduly limit expression on matters of public interest, see 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, at paras. 2 and 16. The purpose of the provision is set out in the legislation out as follows:
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.
[33] More broadly, the provisions are aimed at addressing the problem of strategic lawsuits against public participation or “SLAPP” lawsuits. As Côté J. explains in Pointes Protection, supra, at para. 2:
Strategic lawsuits against public participation (“SLAPPs”) are a phenomenon used to describe exactly what the acronym refers to: lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest. SLAPPs are generally initiated by plaintiffs who engage the court process ad use litigation not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others. In a SLAPP, the claim is merely a façade for the plaintiff, who is manipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs.
[34] The mechanics of the screening mechanism are set out in s. 137.1(3) and (4) as follows:
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. 2015, c. 23, s. 3.
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.
[35] Section 137.1(3) places a threshold burden on the defendant to establish on a balance of probabilities that the proceeding arises from an expression relating to a matter of public interest. Once that threshold burden is met, the onus shifts to the plaintiff to establish that there are “grounds to believe” that the proceeding has substantial merit, that the moving party has no valid defence and that the public interest in permitting the proceeding to continue “outweighs” the public interest in protecting expression: see Pointes Protection, at para. 18.
(iv) Analysis and Findings
a) Section 137.1(3) – The Threshold Issue
[36] The threshold issue is whether the proceeding arises from an expression on a matter of public interest. As set out in Pointes Protection at para. 21, this threshold question has two components.
[37] First, does the proceeding “arise from” an “expression” by the defendant? Expression is very broadly defined in s. 137.1(2) of the CJA. It 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.”
[38] The requirement that the proceeding “arise from” the expression implies an element of causality. In other words, the proceeding must somehow be causally related to the expression. As such, s. 137.1 motions are not restricted to cases of defamation but can arise in any case where the cause of action is related to an “expression”: see Pointes Protection at para. 24 and see Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 25 [“Subway No. 1”] at paras. 31-47.
[39] Second, does the expression relate to a matter of public interest? The concept of “public interest” is not defined in the statute. However, as discussed in Pointes Protection at paras. 26-30, the phrase “public interest” is given a broad and purposive meaning. In order to determine whether an expression is in the “public interest”, the expression is considered as a whole and an assessment of whether “some segment of the community would have a genuine interest in receiving information on the subject” is undertaken: see Grant v. Torstar Corp., 2009 SCC 61, at paras. 101-102. This assessment is not qualitative. The only requirement is that the expression relate to “a matter of” public interest. As such, it is not relevant that the expression is “desirable or deleterious, valuable or vexatious”: see Pointes Protection at para. 28. Expressions that simply make reference to a matter of public interest or expressions about a matter that the public is “merely curious” about are not sufficient.
[40] These two components must be established on a balance of probabilities.
[41] Before delving into the threshold analysis, I will address what appears to be the “all or nothing” structure of s. 137.1 of the CJA. On its face, s. 137.1 directs a court to dismiss “a proceeding” where the test set out in s. 137.1(3) and (4) is established. Section 137.1 of the CJA speaks only of “a proceeding.” It does not use language like “a claim within a proceeding”, “a proceeding or any part thereof” or similar language. At first blush, the choice of language would seem to suggest that whenever the test in s. 137.1 is met, the entire proceeding must be dismissed.
[42] Despite the language, I do not read this section to stand for the proposition that where a proceeding raises multiple claims, some of which arise from an expression in the public interest and some of which do not, the entire proceeding is subject to dismissal under s. 137.1 of the CJA. If that were the case, the defendants would stand to gain a windfall by having otherwise potentially meritorious claims dismissed against them merely due to the fact that the plaintiff included a claim arising from an expression in the public interest that was then dismissed under the provisions of s. 137.1.
[43] The more consistent and fair approach would be to interpret the phrase “a proceeding” as found in s. 137.1 of the CJA as essentially meaning “a proceeding or portion thereof.” In this fashion, the scope and impact of the section would only be brought to bear on a claim or portion of a claim that raises the very concerns the provisions are aimed at addressing. In this regard, I adopt the detailed and persuasive analysis of Nieckarz J. in Schwartz et al. v. Collette, 2021 ONSC 2138, at paras. 19-53 and the comments of Fitzpatrick J. in Rizvee v. Newman, 2017 ONSC 4024, at paras. 140-141.
[44] I turn next to a brief review of the Statement of Claim. As mentioned above, the plaintiffs were self-represented when they commenced the claim. It is not drafted to the regular standards expected of counsel. In fact, in some respects, the pleadings are deficient. That said, this is not a Rule 21 motion nor is it a summary judgment motion or trial. I am prepared to grant some latitude given the relatively early stage of the proceedings and given the fact that the record includes evidence as well as the submissions of counsel. It may well be that amendments to the pleadings and/or motions addressing the sufficiency of the pleadings are in order, but that is for another day. That said, I remain cognizant that s. 137.1(6) of the CJA prevents a party from amending its pleadings in order to prevent or avoid an order dismissing the action, or amending the pleading to continue the proceedings following an order for dismissal. As such, while I am prepared to grant some latitude in reviewing the pleadings, I must assess the merits of the case and the available defences based on the record before me.
[45] On my review of the Statement of Claim, it appears to advance three claims: (1) a central claim for defamation, (2) a related claim of negligence[^4] and, (3) a claim of breach of fiduciary duty.
[46] The claims for defamation and negligence clearly relate to the Township’s public posting of the allegedly defamatory letters from the members of the community. In this regard, there is no issue that the Township engaged in an “expression” by posting the community letters online on a publicly accessible website. There is also no issue that these aspects of the claim “arise from” an expression by the Township.
[47] The claim for breach of fiduciary duty is not as clear. This portion of the claim can be roughly discerned in paragraphs 7-10, 14 and 18 of the Statement of Claim. In essence, the plaintiffs claim that the Township encouraged and induced them into developing their business and then improperly took steps to amend the by-law to prohibit the use planned by the plaintiffs.
[48] While these portions of the claim do not explicitly plead a breach of fiduciary duty, one interpretation is that they plead a breach of an ad hoc fiduciary duty implicitly, albeit imperfectly. Indeed, this appears to have been accepted by the defendant, who dedicates paragraphs 67-74 of its factum to addressing whether the breach of fiduciary duty claim has “substantial merit.” That said, the plaintiffs themselves do not address this aspect of the claim in their submissions on this motion, focusing instead on the central claim for defamation.
[49] An aspect of the breach of fiduciary duty claim appears to be that the Township used the presence of the public comments as a “bargaining chip” to get the plaintiffs to drop their LPAT appeal. This aspect of the claim is reiterated and elaborated upon in the affidavits filed by each plaintiff.
[50] None of the parties made submissions on whether the fact that the breach of fiduciary duty claim references the defamatory letters was a sufficient basis upon which the court could conclude that the threshold requirement that the claim “arises from an expression” was met. Nonetheless, the onus clearly rests on the defendant to satisfy the threshold test on a balance of probabilities. In the absence of a concession that this aspect of the test is satisfied, it remains my task to address the matter.
[51] In my view, the claim for breach of fiduciary duty does not “arise from” the expression in question in this case. The core of the breach of the fiduciary duty claim is that the Township essentially lured the plaintiffs into developing their business plans and then engaged in a targeted effort to amend the by-law and prohibit the very conduct they had apparently encouraged. The plaintiffs argue that the Township was high-handed, malicious and acted in bad faith in doing so. The affidavit material and cross-examination transcripts filed on the motion support this view, as the plaintiffs amplified the many grievances they have over how they were treated by the Township during the application process. Indeed, the Township’s witness on the motion, Ms. Burton, filed a supplementary affidavit addressing, inter alia, the allegation that the Township falsely encouraged the plaintiffs to develop their property, the allegation that the Township engaged in misfeasance in processing the Site Plan application, the allegation that the Township misconducted itself during the course of the LPAT appeal, and the allegation that the Township passed the Housekeeping By-Law in bad faith and essentially to shut down the plaintiffs’ plans for an on-site brewery.
[52] While the refusal to take down the defamatory public letters is part of the narrative on this claim, I do not view the expression at issue, which is posting of the public letters online, as having the element of causality as discussed in Pointes Protection in relation to the claim of breach of fiduciary duty advanced. In other words, the claim for breach of fiduciary duty does not arise from the expression, it arises from the alleged high-handed, malicious, bad faith conduct of the Township in encouraging the plaintiffs to develop their business on the one hand while then engaging in various efforts to thwart their business. At best, the alleged use of public letters as “a bargaining chip” is some evidence of malice or bad faith, but it is not integrally linked to the claimed breach of fiduciary duty.
[53] As such, I am not prepared to find that the threshold issue has been met as it relates to the claim for breach of fiduciary duty. That said, and without deciding the issue, the defendant raises significant concerns with the merits of this claim as currently framed, not the least of which is that the decision to enact the Housekeeping By-Law has been already unsuccessfully challenged by the plaintiffs. Those concerns can and, perhaps, should be properly considered in either a Rule 21 motion or on a motion for summary judgment.
[54] I turn next to assessing whether the expression in question relates to “a matter of public interest.” On this issue, I am satisfied on a balance of probabilities that the expression in question relates to a matter of public interest.
[55] Municipal land use matters regularly raise issues of public importance. In this case, the use of the plaintiffs’ property was the subject of on-going public concern from neighbours and other residents of the Township. The plaintiffs’ plan to seek approval for an on-site brewery was newsworthy in the community and the subject of an article published in the local, and other, newspapers describing the nature of the Site Plan application. The newspaper article prompted unsolicited letters to the Township on the issue.
[56] Municipal land use matters are governed by the Planning Act. The purposes of the Act are set out in s. 1 of the Act and include: “ (a) to provide for planning processes that are fair by making them open, accessible, timely and efficient” and “(e) to encourage co-operation and coordination among various interests.”
[57] In keeping with the purposes of the Act, which aims to foster an open and accessible planning process, the Township takes the view that all applications under the Planning Act are public, whether or not they require a public hearing.
[58] The letters, viewed as a whole, consist of public comments on proposed and current land uses by the plaintiffs. They are from Township residents who are clearly concerned with, inter alia, the reported plans to build a micro-brewery on the farm property. The Township received the letters and decided to consider them on the Site Plan application that had been submitted by the plaintiffs. The letters were then posted online along with the plaintiffs’ Site Plan application, though the fact they were posted was not brought to the attention of the plaintiffs.
[59] Viewed in this context, I am satisfied that the posting of the letters on the website is an expression relating to a matter of public interest. The members of the community have an interest in issues relating to municipal planning and permitted land uses. The Township has an interest in maintaining an open and transparent planning process that is receptive and responsive to the needs of its residents. These interests go beyond mere curiosity. They extend to significant issues of safety, comfort, convenience and fair enjoyment of property. These are issues that members of the public would have a genuine issue in knowing about. They are also issues over which there exists a democratic interest in fostering wide ranging debate.
[60] In reaching this conclusion, I reject the plaintiffs’ argument that a Site Plan application cannot give rise to a matter of public interest because it is not required to be a public process under the Planning Act. The presence or absence of a mandatory public hearing is, at most, a factor to be considered in assessing whether the expression relates to a matter of public interest. Clearly, an inference arises that the legislature’s requirement for a mandatory public hearing for certain types of Planning Act applications reflects the fact that the issues in those applications are of public interest. However, the converse is not automatically true. The mere absence of a mandatory public hearing for the Site Plan application process does not mean that it is a private matter between the applicant and the Township, and that as a result an expression related to the matter is not a matter of public interest. Depending on the circumstances, all aspects of the municipal planning process may give rise to issues of public interest whether or not a public hearing is mandated. On the evidence, this final point was conceded in cross-examination by Michael Wynia, the plaintiffs’ planner (and former Township employee).
[61] In any event, in this case, there was never any indication given to the plaintiffs that their application would be private and not subject to public commentary. The Site Plan application form and the Development Guideline application both mention the public nature of the application process. The form contains an acknowledgement that the application, including commenting letters or reports issued by the municipality, will be made public. The Guideline advises that public consultation and engagement is an integral part of the process and that public consultation is mandated for most approval processes. It also indicates that all applications will be made available publicly in an online database. While neither the application nor the Guideline specifically state that any comments received from members of the public will be also be made public by the Township, the absence of any such specific provision does not undermine the finding that the expression in question related to a matter of public interest.
[62] I also reject the argument that the unsolicited and unguided nature of the comments undermines the public interest quality of the expression. While it is true that the Township neither solicited nor provided guidance on the letters submitted by members of the public, the Township was clearly entitled to consider them as part of the process. More importantly, it is hard to see how the unsolicited and unguided nature of the letters undermines the public interest nature of their content. This is especially so when the letters are viewed as a whole and without qualitative assessment.
[63] Lastly, I reject the argument that the Township’s conduct in considering the Site Plan application in camera due to the outstanding LPAT appeal somehow undermines the public interest nature of the expression because it reveals a double standard. The Township considered the matter in camera because it was a party to live proceedings before LPAT and not because it viewed its assessment of the Site Plan application as a private matter that was not in the public interest. Ultimately, the fact that the Township did so does not alter the nature or context in which the expression took place in the context of the Site Plan application.
b) Section 137(4) of the CJA – the Shifting Burden
[64] Once the threshold burden on the defendant has been satisfied, the onus shifts over to the plaintiffs. In order to discharge their burden, the plaintiffs must show that there are grounds to believe that: (i) their claims have “substantial merit”; (ii) the Township has no valid defence; and, (iii) the harm they have suffered from the expression is so “sufficiently serious” that the public interest in permitting the proceeding to proceed outweighs the public interest in protecting the expression.
[65] The test for “grounds to believe” is subjective from the judge’s perspective, see Pointes Protection at para. 41. The test also accounts for the stage of the proceedings. A s. 137.1 motion will often be brought at the early stages of a proceeding before an in-depth evidentiary record has been developed. While affidavits and cross-examination are permitted, the court must remain “acutely aware” of the limited record available and the nature of the task. A “deep-dive” into the evidentiary record is not required. The court is not adjudicating the matter or conclusively determining the existence of a defence: see Pointes Protection at paras. 36-37.
[66] Ultimately, “grounds to be believe” requires more than mere suspicion but less than proof on a balance of probabilities: see Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26 [“Subway No. 2”] at para. 54 and Pointes Protection at para. 40.
[67] The “substantial merit” criterion and the “no valid defence” criterion work together to require an assessment of the overall prospects of success of the underlying claim, see Pointes Protection at para. 59.
c) Substantial Merit to the Claim – s. 137.1(4)(a)(i)
[68] I start my assessment of this issue by noting that “substantial merit” requires that a claim have “a real prospect of success.” As Côté J. explains in Pointes Protection at para. 49:
…for an underlying proceeding to have “substantial merit”, it must have a real prospect of success -- in other words, a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff. In context with “grounds to believe”, this means that the motion judge needs to be satisfied that there is a basis in the record and the law -- taking in account the stage of the proceeding -- for drawing such a conclusion. This requires that the claim be legally tenable and supported by the evidence that is reasonably capable of belief.
[69] In assessing the merits of the claim, I reiterate that the plaintiffs were self-represented at the time the claim was initiated. The pleadings are far from perfect and likely need amendment. That said, I am not simply considering the pleadings. I am also considering the affidavit evidence and cross-examinations. I have also been assisted by the submissions of plaintiffs’ counsel who has endeavoured to respond to some of the concerns about the pleadings raised by the defendant.
[70] Starting with the defamation claim, the plaintiffs do not specifically identify the allegedly defamatory words in the Statement of Claim. Instead, they plead that the “overwhelming majority of public comments were negative. Some comments were defamatory, inaccurate and damaging.” They also plead that the public comments “included entirely inaccurate statements alleging that the land farmed by the plaintiffs was and remains contaminated with arsenic.”
[71] In view of the deficient pleadings, the Township served a demand for particulars seeking clarification of the precise comments that were defamatory, inaccurate and damaging. The plaintiffs responded to the demand for particulars by noting that the particulars sought were “within the defendant’s knowledge” and “part of the public record.” The plaintiffs also advised that that they considered “the whole of the public comments” broadcast by the defendant to be “defamatory, inaccurate and damaging.”
[72] In assessing the merits of the claim, I agree with the general submission made by the Township that it should not be expected to search for defamatory words “on the basis of vague assertions.” That said, while the claim would benefit from amendment and might otherwise be susceptible to a pleadings motion, I am not prepared to find that the claim has insufficient merit simply on the basis of the deficient pleadings.
[73] The letters published or broadcast by the Township contain a variety of comments which can be reasonably viewed as defamatory. The plaintiffs are described as bullies, cruel towards animals, destructive of the environment, deceitful, fraudulent, unethical and of poor business acumen. One of the letters specifically references arsenic contamination in well water that is then used on the crops.
[74] When I consider the elements of defamation as set out in Grant v. Torstar at para. 28, in context with the stage of these proceedings, I am satisfied that there are grounds to believe that the claim has substantial merit. In other words, I am satisfied that the claim has a real chance of success. The Township published online a number of letters that could tend to lower the plaintiffs’ reputation in the eyes of a reasonable person. The words published clearly identified the plaintiffs. Lastly, the words were communicated online for a period of time, allowing anyone to access, download and disseminate the comments.
[75] In terms of damages, I note that where a plaintiff establishes the elements of defamation on a balance of probabilities, falsity and damages are presumed. Accordingly, having been satisfied that the grounds to believe that the claim has substantial merit, I am implicitly also finding that there are grounds to be believe that falsity and damages will be presumed.
[76] In addition to damages for reputational harm, the plaintiffs seek damages relating to the financial impact that the defamation had on their business. The plaintiffs have tendered evidence that supports a finding that the public comments were readily discoverable online. They also have tendered evidence that demonstrates that their business suffered a sudden drop in revenue from one year to the next around the time the public comments were posted online. I accept that an inference arises that the public comments caused or perhaps contributed to the decline in sales. Keeping in mind that my task at this stage is not to finally decide the issue of damages, but rather only assess whether there are grounds to believe that the claim has substantial merit, I am satisfied that the plaintiffs have met the test on the issue of the financial damages.
[77] I turn next to the claim for negligence. As I read the Statement of Claim, the plaintiffs allege that as taxpayers and business operators living within the Township’s jurisdiction, the Township owed them a duty of care in relation to online posting of the public comments. The plaintiffs further allege that the Township was negligent because its conduct in simply posting the comments online without any reviewing, vetting or editing, fell below the requisite standard of care and resulted in damages.
[78] In the Statement of Defence, the Township denies that it had a duty of care towards the plaintiffs and further that if such a duty existed, it was breached by its conduct.
[79] Neither the defendant nor the plaintiffs made any written submission on the merits of the negligence claim. Indeed, in their factum overview, the plaintiffs describe the action as “an action in defamation” and do not separately address the negligence issue (or for that matter, the apparent claim of breach of fiduciary duty).[^5] That said, during oral argument of the motion, plaintiffs’ counsel briefly advanced the position the Township owed a duty of care to the plaintiffs but did not address the legal issues involved.
[80] The failure to make submissions on this aspect of the claim is problematic. At this stage of the analysis, the onus is on the plaintiffs to establish grounds to believe that the negligence claim has substantial merit.
[81] There is no issue that a negligence claim can arise out of the same factual matrix as a claim for defamation, though it should not be essentially a defamation claim “in different clothing”: see Subway No. 1 at para. 52 and following. While that may not be a significant hurdle in this case, it does not end the analysis. A more challenging issue is whether there exists a duty of care between the Township and the plaintiffs as residents and/or planning applicants. The existence of a duty of care is ultimately a legal issue, which depending on the circumstances may involve a complex and nuanced legal analysis. In addition, the existence of a duty of care requires factual underpinnings. The plaintiffs have chosen to offer no submissions on these issues. It is not for the court to divine what those submissions would be.
[82] Moreover, even if I were to accept that the suggested duty of care exists, the plaintiffs still have most of the hard work ahead of them. They must still establish:
(a) The applicable standard of care;
(b) A breach of that standard of care; and,
(c) Causation, in fact and in law.
See Drougov v. Apotex Inc., 2015 ONSC 2896, at para. 21.
[83] No evidence was adduced on the motion capable of establishing that the plaintiffs’ claim has substantial merit in relation to the first two of these factors.
[84] As such, I am unable to conclude that I have grounds to believe that the claim for negligence has substantial merit. That aspect of the claim is dismissed.
(d) No Valid Defence – s. 137.1(4)(a)(ii)
[85] To summarize, I have concluded thus far that the breach of fiduciary duty claim does not arise from an expression and, in the result, that aspect of the claim will not be dismissed. I have further concluded that while the claim sounding in negligence arises from an expression, the plaintiffs have failed to establish that it has substantial merit and, in the result, it is dismissed.
[86] The plaintiffs have established to my satisfaction that the defamation claim arises from an expression and has substantial merit.
[87] The next step in the analysis is to determine whether there are grounds to believe that the defendant has no defence to the claim in question. On this issue, the plaintiffs again carry the burden. However, they are not required to address every conceivable defence available. Instead, they are only required to address the defences “put in play” by the Township, see Pointes Protection at paras. 56-57.
[88] The standard to be met is the same as the “substantial merit” criterion – “grounds to believe.” As such, it is up to the plaintiffs to demonstrate that there are grounds to believe that the defences have no real prospect of success. In other words, the plaintiffs need only demonstrate “that there is a basis in the record and the law … to support a finding that the defences put in play do not tend to weigh more in [the defendant’s] favour”: see Bent at para. 103 and Subway No. 2 at para. 67. This issue is to be determined with a view to the stage of the proceedings and does not require a “deep dive” into the evidence to determine the validity of the particular defences advanced.
[89] In this case, the Township has put the following defences in play: justification, fair comment, qualified privilege and the existence of a release and indemnification clause. I will address each of these in turn.
i. Defence of Justification
[90] Where a plaintiff presents evidence establishing a prima facie case of defamation, the words complained of are presumed to be false: Torstar at para. 28. The defendant can advance a defence of justification by adducing evidence showing that the statement is substantially true. The burden is on the defendant to prove the substantial truth of the “sting” or main thrust of the defamation: see Bent v. Platnick, 2020 SCC 23, at para 107. In this regard, partial truth is not a defence. If a material part of the justification defence fails, the entire defence fails: see Bent at para. 108.
[91] The plaintiffs argue that the “sting” of the allegedly defamatory words raise allegations of contaminated soil, animal cruelty, deceitful and fraudulent business practices, unethical farming, and unneighbourly conduct. The plaintiffs note that at trial, assuming a prima facie case of defamation is established, it would be up to the Township to tender evidence proving the substantial truth of these comments in order to succeed on a defence of justification.
[92] The plaintiffs argue that the evidentiary record on the motion provides a proper basis for finding grounds to believe that this defence has insufficient merit.
[93] The Township notes that the Statement of Claim, as drafted, makes specific reference to only one allegedly defamatory statement relating to arsenic contamination. The Township further notes that in response to the Demand for Particulars, the plaintiffs advised that “all the public comments” were defamatory. As such, the Township argues that the plaintiffs are, at a minimum, required to lead some evidence to prove that their farm lands are not contaminated with arsenic or, in the alternative, lead some evidence to prove that the “whole” of the public comments are untrue.
[94] I start my assessment of this issue by noting once again that the pleadings are not ideal. The words complained of are not clearly specified. The exercise of seeking particulars did not bring any clarity to the matter. That said, on this motion, the plaintiffs have clearly set out the specific words they submit form the “sting” of the defamatory comments. While the pleadings are flawed, the words complained of as specified in the record before me should come as no great surprise to the Township.
[95] In terms of the evidence before me, I note that the plaintiffs have demonstrated that their farming business was celebrated and recognized as a model to be followed. Indeed, the Township even recognized that the plaintiffs were innovative and enterprising farmers. Further, the plaintiffs produced hops which were then sold to breweries regulated under the Safe Foods for Canadians Act, which establishes requirements for food chain safety. The plaintiff, Ms. Thatcher-Craig, testified in cross-examination that she and her husband were not selling contaminated hops. Implicit, if not explicit, in Ms. Thatcher-Craig’s evidence, is her view that their farm land and produce is not contaminated by arsenic. While there may be some credibility issues with certain aspects of Ms. Thatcher-Craig’s evidence, her evidence on this issue is certainly capable of belief.
[96] Keeping in mind the stage of the proceedings, I am satisfied that the plaintiffs have established grounds to believe that the defence of justification has insufficient merit. To be clear, I have not concluded that the defence of justification will not succeed at trial. Rather, I have simply concluded that when I consider the defamatory words in context with the evidence before me, I have grounds to believe that the defence of justification has no real prospect of success.
ii. Defence of Qualified Privilege
[97] The defence of qualified privilege arises when the person or entity that makes the communication has an interest or duty to publish the information and the recipient has a corresponding interest or duty to receive it: see Bent at para. 121. Qualified privilege attaches to the occasion in which the communication is made and not to the communication itself. Where qualified privilege applies, it does not matter how untrue the communication is: see Torstar at paras. 28-31. Qualified privilege can be defeated where the communication exceeds the limits of the duty or interest.
[98] Even where the defence is established, proof that the defendant was subjectively actuated by express malice will defeat the defence. Malice can be established by reckless disregard for, or indifference to, the truth, spite or ill-will, or any indirect or ulterior motive: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 145; and Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, at para. 31.
[99] The Township argues that its publication of the letters on the Township website was undertaken on an occasion of qualified privilege. In particular, the Township argues that it had a legitimate interest in the public’s views on the plaintiffs’ proposed development. The letters were posted so that other members of the community would have access to them. The letters were posted as part of the Township’s commitment to transparency in the approvals process.
[100] The plaintiffs argue that qualified privilege does not attach to this instance of communication. In the alternative, they argue that the communication exceeded the scope of any qualified privilege.
[101] In assessing whether there are grounds to believe that this defence has no real prospect of success, I consider the following factors:
a. The Township did not solicit public comments on the Site Plan application. This is not an instance where the Township, aware of the importance of the issue, took steps to invite comments.
b. A Site Plan application is a less formal planning process, often used for more routine planning functions. No public hearing is required for a Site Plan application.
c. The Guideline provided to the plaintiffs does not indicate that comments received by members of the public, however received, will be posted online and accessible to the public. The Guideline merely states that “the application and all supporting documentation provided…as well as commenting letters or reports by the municipality and other review agencies, will be part of the public record.”
d. The content posted online by the Township, was in large measure irrelevant to the issue to be determined by the Township. Much of the public comments simply paint that plaintiffs as bullies, cruel towards animals, destructive towards the environment, deceitful and fraudulent, of poor business acumen and unethical farmers. None of these comments are relevant to the proposed use of the farm land for a micro-brewery.
e. The content was posted on a publicly accessible website, captured by Google search algorithms and accessible to a much broader audience than the residents of the Township.
f. The Township published the information online in the absence of any policy, guideline or procedure that might serve to attenuate the potential risk of harm by ensuring that the information was appropriate.
[102] Having considered these factors in the context of the record before me and keeping in mind the stage of the proceedings, I find there are grounds to believe that the defence of qualified privilege does not have sufficient merit, either because it does not arise or because its scope was exceeded on the occasion of the publication by the Township. In view of this finding, I need not consider whether the evidence provides grounds to believe that malice would defeat the defence of qualified privilege.
iii. Defence of Fair Comment
[103] As set out in WIC Radio Ltd. v. Simpson 2008 SCC 40, at para. 28, the defence of fair comment has four constituent elements, all of which must be established for the defence to succeed:
(a) the comment must be on a matter of public interest;
(b) the comment must be based on fact;
(c) the comment, though it can include inferences of fact, must be recognizable as comment; and,
(d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?
[104] As with the defence of qualified privilege, the defence of fair comment can also be defeated by evidence of malice.
[105] The Township asserts that the letters posted online were comments on a matter of public interest and would have been recognizable as such by any reasonable reader. Further, the Township asserts that there is no basis to doubt that the comments are anything other than honestly held opinions based on facts which have not been disproved in these proceedings.
[106] The plaintiffs argue that the comments are not on a matter of public interest. They further argue that the comments are merely baseless attacks and not opinions posited on true facts. Lastly, the plaintiffs argue that the comments are not ones that could be honestly and reasonably held by anyone knowing the actual facts. While the plaintiffs do not assert that the Township’s dominant purpose in publishing the comments was driven by malice, they also argue that the Township was reckless in publishing unsolicited and unfiltered comments in the circumstances of this case.
[107] When I consider the elements of this defence in context with the record before me, I have grounds to believe that the defence has insufficient merit. In particular, while I am prepared to find that the public comments viewed as a whole are on a matter of public interest, it is difficult to see how the impugned portions of the letters can be characterized as honestly held opinions based on proven facts. On this issue, I agree with the plaintiffs that the comments can objectively be viewed as baseless attacks by openly disgruntled neighbours. Moreover, the opinions are not clothed in any qualifying language, the opinions themselves are presented as fact.
[108] Again, and to be clear, I am not deciding at this stage whether the defence is certain to fail, I am merely deciding that I have grounds to believe that the defence has no real prospect of success. In other words, I have grounds to believe that the defence weighs more in favour of the plaintiffs than the Township.
[109] In view of this finding, I need not consider malice though I note that the plaintiffs do not suggest this is a case where the Township was primarily motivated by malice. Rather, they argue the evidence supports a finding that the Township was reckless, as opposed to negligent or careless, when it posted the unsolicited letters online with out any screening or vetting. On this issue, the evidence suggests that the Township had no process in place for reviewing or editing the letters. The letters were simply posted online for the world to see. The fact that one of the letters contained an openly racist comment regarding the ethnicity of the farm workers employed by the plaintiffs serves to highlight the perils of simply re-posting public comments without any screening or review.
iv. The Indemnification Defence
[110] I turn next to the indemnification defence. The Township claims that in submitting the Site Plan application, the plaintiffs acknowledged that any information related to the application would be made public and agreed to fully release and indemnify the Township from “any responsibility or consequences arising from publishing or releasing the application and supporting or associated information.”
[111] As the Township acknowledges, this defence arises as a matter of contractual analysis. On this issue, I note that neither the Site Plan application form nor the accompanying Guideline make any reference whatsoever to the public posting of unsolicited and unfiltered letters received from interested members of the public.
[112] The language used in the Site Plan application states as follows:
…the information on this application and any and all supporting documentation provided by myself, the applicant, agents, consultants and solicitors, as well as commenting letters or reports issued by the municipality and other review agencies will be part of the public record, may be published and distributed by the municipality in any form, and will also be fully available to the general public.
[113] While this language does refer to “commenting letters or reports issued by the municipality”, it is hard to see how the public letters at issue in this case would fall within this class or description of document. When the paragraph is read as whole and in the ordinary grammatical sense, the term “commenting letters” is not disjunctive. I read it conjunctively as meaning that “commenting letters … issued by the municipality or other review agencies” will be made public.
[114] The Guideline document advises that all planning applications and submission materials are circulated to other Township Departments and external agencies for information and comment. The document provides a list of “commenting partners.” While the document states that commenting partners “include but are not limited to” the list of entities provided, the public at large is not a listed entity. Moreover, viewed in context, the list describes parties that the Township solicits commentary from. There is no evidence suggesting that the Township treated or viewed the public at large as a “commenting partner” on the Site Plan application.
[115] Lastly, the Guideline advises that applications will be posted on a website and made available to the public. It also notes that the website will be updated as the application progresses. It does not suggest that any and all public comments, including unsolicited and unfiltered comments, will also be posted online.
[116] When I consider the language used in both documents, I readily conclude that I have grounds to believe that the indemnification defence has no real prospect of success.
(e) The Weighing of Public Interest – s. 137.1(4)(b)
[117] The final stage of the analysis requires the plaintiff to satisfy the court that the harm that is likely to be or has been suffered by the plaintiff is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression in question. As discussed in Pointes Protection at paras. 61-62, this is the crux of the analysis as it serves as “a robust backstop for motion judges to dismiss even technically meritorious claims if the public interest in protecting the expression that gives rise to the proceedings outweighs the public interest in allowing the proceeding to continue.”
[118] At its core, the provision requires a proportionality analysis. The court must first consider the harm sought to be vindicated by the proceeding. The harm can be monetary or non-monetary and the court is required to assess the magnitude of harm alleged, keeping in mind the stage of the proceedings. A fully developed damages brief is not required as the issue is not subject to adjudication on the merits. There must simply be evidence from which the court could infer the existence of harm and a causal connection: see Pointes Protection at para. 71.
[119] The court then needs to assess the public interest in permitting such a proceeding to continue in contrast with the public interest in protecting the expression in question. In the final analysis, it is only where the court is satisfied on a balance of probabilities that the former outweighs the latter, that the proceeding will be permitted to continue. In this regard, it is not a balancing exercise. The public interest in letting the proceeding continue must outweigh the public interest in protecting the expression in question.
[120] Importantly, unlike the analysis under s. 137.1(3), the assessment of the public interest under s. 137.1(4)(b) is qualitative. As Côté J. notes in Pointes Protection at paras. 75-76:
[75] Indeed, “a statement that contains deliberate falsehoods, [or] gratuitous personal attacks . . . may still be an expression that relates to a matter of public interest. However, 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, [or] vitriol” (C.A. reasons, at para. 94, citing Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC 6785, 410 D.L.R. (4th) 380, at paras. 82-84 and 96-103, aff’d 2018 ONCA 690, 428 D.L.R. (4th) 568).
[76] While judges should be wary of the inquiry descending into a moralistic taste test, this Court recognized as early as R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697, that not all expression is created equal: “While we must guard carefully against judging expression according to its popularity, it is equally destructive of free expression values, as well as the other values which underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of s. 2(b)” (p. 760).
[121] In conducting the public interest weighing exercise, the court may consider the following factors:
a. A history of the plaintiff using litigation to silence critics;
b. A financial or power imbalance that strongly favours the plaintiff;
c. A punitive or retributory purpose in animating the plaintiff’s bringing of the claim; and,
d. Minimal or nominal damages suffered by the plaintiff.
See Platnick v. Bent, 2018 ONCA 687 at para. 99 as cited in Pointes Protection at paras. 78-79.
[122] The purpose in assessing these four factors is not simply to determine whether a proceeding has the hallmarks of a SLAPP action. Rather, the focus must be on how these factors inform the public interest weighing exercise mandated by s. 137.1(4)(b). In other words, these factors can be considered to the extent that they are tethered to the test set out in the section.
[123] In addition, the court may also consider the following factors:
a. The importance of the expression;
b. The history of litigation between the parties;
c. Broader or collateral effects on other expressions on matters of public interest;
d. The potential chilling effect on future expression either by a party or by others;
e. The defendant’s history of activism or advocacy in the public interest;
f. Any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award; and,
g. The possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group or a group protected under s. 15 of the Charter or human rights legislation.
See Pointes Protection at para. 80.
[124] Against this backdrop, I turn to examine the issue of harm. In terms of non-monetary harm, I note that in Pointes Protection at para. 69, Côté J. recognized that “reputation is one of the most valuable assets a person or business can possess.” Viewed in the context of this case, I am satisfied that the nature of the public comments posted by the Township on the website could objectively result in a negative impact on the reputation of the plaintiffs. These public comments described them as bullies, deceitful, unethical and fraudulent farmers who engaged in animal cruelty and environmental contamination.
[125] The scope of the impact on the reputation of the plaintiffs is broadened by the fact that comments were posted online and accessible through a simple Google search, and further the fact that the plaintiffs were engaged in an innovative and novel type of farming involving a niche product sold to craft brewers.
[126] In terms of monetary harm, I note again that I am not conducting a damages assessment on a trial record. The plaintiffs noted a substantial decline in sales revenue between 2018 and 2019, a period that overlaps the posting of the public comments. The sales literally collapsed at this point in time and the plaintiffs observed a marked deterioration of their customer relationships. The bulk of the comments were available online for a period of almost three months and were readily visible using a simple Google search of the plaintiffs’ business name. The online comments were accessible in a format that also made them easily shareable online. While the issue of causation is not settled at this stage and may well be a difficult hurdle at trial, I am prepared to find that the record supports an inference that monetary harm was likely caused by the expression in question.
[127] I turn lastly to the public interest weighing. I note at the outset that the expression in question in this case is not the unsolicited letters written by residents and sent to the Township. Rather, the expression in question is the publication of those unsolicited letters by the Township on its publicly accessible website. This is an important distinction as a consideration of the public interest must focus on potential impact that limiting the expression in question will have. To be clear, this action does not seek to limit the right of residents to express themselves to their municipal government on Planning Act issues. Rather, this action is about the role and responsibility of municipal government which, in the context of a Site Plan application, chooses to broadcast unsolicited and unfiltered public commentary on a publicly accessible website viewable by anyone.
[128] In terms of the public interest in the claims advanced, I am satisfied that in view of the articulated monetary and non-monetary harms, there is a strong public interest in having the matter determined on its merits. Further, this is not a case where the plaintiffs’ claim appears geared towards simply silencing its critics nor is it a case where there exists a power imbalance between the plaintiffs and the defendant. If anything, it appears that the plaintiffs are the ones subject to the power imbalance. Lastly, while it is clear that there is no love lost between the plaintiffs and the Township, this action does not appear to be a purely or mainly retributive effort to punish the opposing side. When I consider these factors to the extent that they inform the public interest in allowing the claim to proceed, I am satisfied that there remains a strong public interest in favour of the plaintiffs.
[129] When I turn to the public interest in the expression in question, I note at the outset that a qualitative assessment of the expression is important. The Township took no steps to guide, vet or review the public comments it placed online. The public comments were unsolicited. In other words, this is not an instance where the Township, in carrying out its Planning Act function was either required or saw fit to solicit public comments. While some of the public comments were aimed at the actual issues raised on the Site Plan application, much of the comments were nothing more than personal attacks aimed at denigrating the plaintiffs and their business. From a qualitative point of view, the rebroadcasting of this type of information has little value to the municipal planning process. Contrary to the Township’s submissions, the blanket broadcasting of such unsolicited and unfiltered letters does not foster openness and transparency. It actually undermines the legitimacy of the process as it sends the message that these types of submissions are relevant and appropriate. On this issue, I note again that, among the many negative and derogatory comments posted online, the Township rebroadcast the openly racist submission that the plaintiffs employ “bus load of seeks (sic) and Pakistan workers…” In assessing the public interest in the expression in question, it is hard to see how rebroadcasting these types of comments across the internet is a form of expression that warrants significant protection.
[130] In addition, while I accept that the public has a strong interest in municipal planning issues and may well have a corresponding interest in participating in the process, this case does not seek to limit public participation in the process. Again, the issue is whether the Township acted appropriately in simply posting the unsolicited and unfiltered comments online, not whether it was wrong for members of the public to send their concerns to the Township. In this regard, I see limited risk of a chilling effect on a legitimate public debate.
[131] Ultimately, while I agree that there exists a public interest in fostering debate and participation on issues of municipal planning, I do not view this action as seeking, either directly or by implication, to undermine or impact these important goals.
[132] When I weigh the competing public interests, I am satisfied that the public interest in allowing this action to proceed is outweighed by the public interest in protecting the specific expression in question.
(f) Conclusion
[133] In summary, I reach the following conclusions:
a. The claim for breach of fiduciary duty is not dismissed as I am not satisfied that it is a claim arising from an expression that relates to a matter of public interest;
b. The claim for negligence is dismissed as I do not have grounds to believe that it has substantial merit; and,
c. The claim for defamation is not dismissed as the plaintiffs have met their burden under s. 137.1(4) of the CJA.
[134] Success is divided, though the plaintiffs are mainly successful as the core of their claim survives. If the parties wish to make submissions on costs, they can do so in writing through my judicial assistant at Diane.Massey@ontario.ca. The plaintiffs’ costs submissions are due within 15 days of the release of these Reasons. The Township’s costs submissions are due within 30 days. The submissions are to be no longer than five pages, excluding caselaw and appropriate appendices.
J. Di Luca J.
Released: November 5, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Laurie Thatcher-Craig, John Craig and Clearview Valley Farms Inc.
Plaintiffs/Responding Parties
– and –
The Corporation of the Township of Clearview
Defendant/Moving Party
REASONS FOR DECISION
Justice J. Di Luca
Released: November 5, 2021
[^1]: As will be discussed, the plaintiffs were self-represented when they commenced this action. Unsurprisingly, the Statement of Claim is not drafted to the standards expected of counsel. While the Statement of Claim clearly advances a claim of defamation, a generous reading suggests that it also advances a related negligence-based claim and separate breach of fiduciary duty claim as well.
[^2]: On February 11, 2019, LPAT stayed the appeal pending direction from the Superior Court on the proper interpretation of the zoning by-law. The plaintiffs did not seek a determination of the issue before the Superior Court.
[^3]: The Housekeeping By-law was passed on March 4, 2019. The plaintiffs appealed eight sections of the by-law to LPAT. The Tribunal dismissed the appeal in relation to seven of the eight sections and permitted a withdrawal of the eighth section. The tribunal held that the by-law “represents good planning” and was merely a re-working of existing permitted uses for the purpose of consistency. The Tribunal declined to expand the definition of “accessory farm winery or cidery” to include a brewery.
[^4]: In Young v. Bella, 2006 SCC 3, at para. 56, the Supreme Court held that it is not inappropriate to advance a negligence claim arising out of the same factual matrix as a defamation claim as long as the necessary elements of the negligence claim are made out.
[^5]: There is a brief mention of the duty of care and standard of care at para. 114 of the plaintiffs’ factum in dealing with the weighing of public interest.