Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ZAFAR BANGASH Plaintiff
– and –
MUSTAFA PATEL Defendant
Counsel: Stephen Ellis for the Plaintiff Charles R. Daoust for the Defendant, Mustafa Patel
HEARD: September 17, 2021 by Zoom Videoconference
RULING ON ANTI-SLAPP MOTION
C. BOSWELL J.
I.
1Mr. Bangash is an Imam at the Islamic Society of York Region (the “Society”). Mr. Patel is a member, or former member, of the Society and part of an ad hoc group of members unhappy with Mr. Bangash’s leadership.
2In May 2019 someone wrote up a petition listing a long series of grievances the ad hoc group had with Mr. Bangash. Mr. Patel helped circulate the petition by placing leaflets on cars parked in the Society’s lot. He went further and posted the petition online on a Facebook account and at a website dedicated to the posting of petitions called Change.org.
3The petition included a demonstrably false allegation – that members of Mr. Bangash’s family had sold off a part of the Society’s lands without consultation without accounting for the sale proceeds. No such sale has ever occurred.
4Mr. Bangash sues Mr. Patel for $150,000 in damages for defamation. Mr. Patel asserts that Mr. Bangash’s lawsuit is an attempt to unduly stifle his right to free expression. He says the claim is brought not to vindicate a wrong, but rather to silence and punish him for having spoken out against Mr. Bangash and to intimidate others from doing so in the future. He moves to dismiss Mr. Bangash’s claim under the anti-SLAPP provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43.
5“SLAPP” is one of the better acronyms known to the civil law. It stands for “strategic lawsuits against public participation.” Essentially, a SLAPP is a lawsuit “initiated against individuals or organizations that speak out or take a position on an issue of public interest…as an indirect tool to limit the expression of others.” See 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 (“Pointes-SCC”) at para. 2.
6The mischief posed by SLAPPs has been on the radar of lawmakers for some time. In 2015 the Ontario legislature added anti-SLAPP provisions to the Courts of Justice Act, R.S.O. 1990, c. C.43, providing the court with the statutory discretion to stop SLAPPs in their tracks.
7Mr. Patel’s motion engages the court in an examination of Ontario’s anti-SLAPP legislation and requires a determination of the following issues:
A. Does this proceeding arise from an expression made by Mr. Patel that relates to a matter of public interest?
B. Are there grounds to believe that Mr. Bangash’s claim has substantial merit and that Mr. Patel has no valid defence? And,
C. Is the harm suffered by Mr. Bangash as a result of Mr. Patel’s expression sufficiently serious that the public interest in permitting Mr. Bangash’s claim to proceed outweighs the public interest in protection Mr. Patel’s expression?
THE PROTAGONISTS
Mr. Bangash
8Mr. Bangash is a 71-year old resident of Markham, Ontario. Originally trained as an engineer, he changed his profession in the mid-1980s and began to work as an Imam – a Muslim religious leader. He has worked as an Imam at the Society since 1991. He was president of the Society between 1991 and 2007. He presently assists it with special projects. His work for the Society has always been provided for free.
9Mr. Bangash describes himself as a prominent member of the Muslim community in Canada and internationally. He is the Director of the Institute of Contemporary Islamic Thought, an Islamic research centre. He is a former editor of Crescent International, a monthly newsmagazine, and remains a regular contributor. He has published a number of books, including an award-winning one on the life of the Prophet of Islam. He is a frequent speaker at international conferences.
10Mr. Bangash further describes himself has having considerable standing in the international Muslim community. He has established contacts with many academics and international political figures in the US, UK, Turkey, Pakistan, Malaysia and South Africa, amongst other countries.
The Society
11The Society is a religious and cultural organization serving the local York Region Muslim community. It began as an informal association in the mid-1980s when a group of local Muslims rented local banquet halls on Fridays to offer prayers. It was registered as a charitable organization in 1991. Mr. Bangash was one of the prime movers behind that registration.
12The Society purchased a 33-acre parcel of land on Stouffville Road in Richmond Hill in 1999. Since that time, it has been engaged in ongoing efforts to upgrade the structures on the site.
13Membership in the Society is open to all Muslims, regardless of denomination. Members must, however, meet certain minimum requirements. They must regularly attend prayers at the Society, especially the main weekly prayer on Friday afternoons. They must make regular financial donations to the Society. And they must volunteer their time to help out with various activities the Society is involved in.
Mr. Patel
14Mr. Patel is a 43-year old, married father of four. He lives with his family in Richmond Hill. He is self-employed as an online marketing professional.
15Mr. Patel is a Sunni Muslim and active in the Muslim community. He says he was, until the summer of 2019, a member of the Society. Mr. Bangash contests that assertion, saying that Mr. Patel has not been a member, at least not one in good standing, since about 2014.
16Mr. Patel deposes that he moved to Richmond Hill fifteen years ago to be close to the Society. He viewed the Society as an innovative cultural centre that offered stimulating educational and community activities. Wanting to play a leadership role in the Society, he soon began teaching Sunday school and volunteering with youth summer camps.
17In 2017, Mr. Patel joined an ad hoc organization of concerned members of the Society, who referred to themselves as the York Region Muslim Community Enhancement Group. The participants in the group had concerns about the way the Society was being operated, including concerns about its organizational structure, its finances, its governing rules, its transparency and a perceived lack of services, particularly for young people.
18Mr. Patel deposes that he personally grew increasingly concerned that Mr. Bangash was using the Society as a platform to promote what he describes as extreme political views on Israel, Saudi Arabia and Lebanon.
THE EXPRESSION
19According to Mr. Patel, rumblings began to be heard among Society members in mid-2019 that Mr. Bangash and members of his family may have misappropriated funds raised by the Society from the sale of part of its property. Suspicions ran high, he said, because Mr. Bangash refused to account for how the Society’s funds were being spent. Concerned members decided to take a more active approach to raising awareness of their concerns.
20As I noted, on May 18, 2019, Mr. Patel and others distributed a petition by placing leaflets on cars in the Society’s parking lot. He also published the petition on two online platforms: Facebook and Change.org. His hope, he says, was to raise awareness and give others a platform for comment.
21Mr. Patel denies being the author of the petition but there is no dispute that he distributed it and published its contents online.
22Mr. Patel deposes that the petition raised the following concerns:
a) a lack of financial disclosure and transparency;
b) the sale of a portion of the Society’s property by members of Mr. Bangash’s family without consulting members of community;
c) a lack of board meetings over the past ten years;
d) a lack of voting, membership, or community meetings;
e) a lack of process in place for community members to voice concerns;
f) a lack of consultation in decision-making;
g) a lack of maintenance of the property, including the garden, tennis court and swimming pool;
h) improper use of the property by Mr. Bangash for personal use and profit;
i) political turmoil between the Society and Muslims of York Region that has resulted in a ban on developing a Mosque in Richmond Hill;
j) prayers not being offered five times per day;
k) a lack of recreational facilities, including a baseball diamond, basketball court and gymnasium;
l) a lack of formal programming and activities being offered;
m) a lack of development;
n) a lack of formal training to transmit Islamic religious knowledge; and,
o) disrespect of women and children of the Society.
23The full content of the leaflet is set out at Appendix “A”.
24The materials filed by Mr. Patel in support of his motion reflect some confusion on his part regarding the expression in issue in the lawsuit. Mr. Patel’s factum approaches the defamation claim on the basis that Mr. Bangash is impugning the entire petition as defamatory. He is not. Instead, he has chosen to focus on just one passage.
THE LAWSUIT
25Mr. Bangash issued his claim against Mr. Patel on July 25, 2019. He initially sought $10 million in damages but reduced that to $150,000 by way of an Amended Statement of Claim issued on February 3, 2020.
26Mr. Bangash alleges that he was defamed by the following particular paragraph of the petition:
A portion of the property was sold by members of the leader’s family, and no one in the community was consulted about this - where did the funds from that transaction go?
27He says that a reasonable person reading the foregoing passage would reasonably conclude that he is dishonest, untrustworthy and has engaged in fraudulent or criminal conduct.
28He further alleges that the defamatory publication was made in bad faith and maliciously.
29After being served with the Statement of Claim, Mr. Patel removed the impugned paragraph from the online version of the petition on the Change.org site but did not remove it from Facebook.
30In his Statement of Defence, Mr. Patel admits that he placed leaflets on cars in the Society parking lot on May 18, 2019 and that he posted the petition on the website Change.org. He denies that the statements contained in the petition are defamatory and further denies that they were made maliciously or in bad faith. He purports to have had a duty to advise the Society’s members of concerns he shared with others about the way the Society was being operated.
31Mr. Patel advances a number of defences to the defamation claim. He pleads that Mr. Bangash failed to meet the notice provisions of the Libel and Slander Act, R.S.O. 1990, c. L. 12. He further advances the defences of qualified privilege, responsible communication and fair comment. He asserts, more generally, that the claim is a SLAPP and an attempt to infringe upon his fundamental right to free expression.
II.
ONTARIO’S ANTI-SLAPP LEGISLATION
32To combat the mischief posed by SLAPPs and to safeguard the free expression so essential to a vibrant democracy, the Ontario legislature introduced anti-SLAPP legislation in late 2015 by way of an amendment to the Courts of Justice Act. Specifically, the addition of ss. 137.1 to 137.5, which establish an expeditious process for the early dismissal of actions that arise out of expressions by defendants on matters of public interest.
33In Subway Franchise Systems of Canada Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, at para. 38, Thorburn J.A. cited comments made in the legislature by former Attorney General Madeleine Meilleur who described the objective of the legislation as intending to “quickly identify and deal with strategic lawsuits, minimizing the emotional and financial strain on defendants ...and strike a balance that will help ensure abusive litigation is stopped but legitimate action can continue.”
34Section 137.1(1) expresses the purposes intended to be served by the legislation:
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.
35Doherty J.A. summed up these purposes at para. 45 of 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 (“Points-CA”), describing them as “crystal clear”. “Expression on matters of public interest is to be encouraged”, he said. “Litigation of doubtful merit that unduly discourages and seeks to restrict free and open expression on matters of public interest should not be allowed to proceed beyond a preliminary stage.”
36The analytical framework for assessing anti-SLAPP motions is provided at ss. 137.1(3) and (4):
(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.
(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.
37This framework was examined in detail by the Supreme Court in Pointes-SCC. Justice Côté, writing for a unanimous court, essentially laid out a step-by-step procedure for assessing the factors legislated in s. 137.1(3) and (4).
The Claim Must Arise from an Expression Relating to a Matter of Public Interest
38As a starting point, the moving party bears a threshold burden to satisfy the court, on a balance of probabilities, that the lawsuit arises from an expression and that the expression relates to a matter of public interest.
39“Expression” is defined by s. 137.1(2) as any communication, made verbally or non-verbally, publicly or privately, whether or not directed at a person or entity.
40Determining whether an expression relates to a matter of public interest requires a holistic assessment of the expression in issue. The court must apply a broad and liberal interpretation to the phrase, “public interest”, and determine whether “some segment of the community would have a genuine interest in receiving information on the subject.” See Grant v. Torstar Corp., 2009 SCC 61 at paras. 101-102.
The Plaintiff Must Meet a Merits-Based Hurdle and a Public Interest Hurdle
41Provided the moving party meets its threshold burden, then the onus shifts to the responding party to meet both a merits-based hurdle and a public interest hurdle. A failure to meet both is fatal to the claim and will lead to its dismissal.
42Unlike the moving party’s threshold burden, the merits-based and public interest-based burdens do not engage the balance of probabilities standard. The legislation specifies a modified standard – “grounds to believe”. This is a lower standard than proof on a balance of probabilities. It recognizes that anti-SLAPP motions will ordinarily be brought at a preliminary stage of the proceedings and argued on a limited record.
The Merits-Based Assessment
43The plaintiff’s first hurdle is to establish that there are grounds to believe the claim has substantial merit.
44The “grounds to believe” standard requires only that there be a basis in the record and in law for finding that, from the motion judge’s perspective, the underlying proceeding has substantial merit.
45A proceeding will have substantial merit where it can be said that it has a real prospect of success. It is not necessary for the responding party to demonstrate a likelihood of success, but rather a prospect of success that tends to weigh in favour of the plaintiff. This is a higher standard than some chance or a reasonable prospect of success. It is more than just an arguable case, but less stringent a standard than the prima facie case threshold. It requires more than mere suspicion but less than proof on a balance of probabilities. See Subway, as above, at para. 54.
46As Côté J. summarized at para. 54 of Pointes-SCC,
…[T]he plaintiff must satisfy the motion judge that there are grounds to believe that its underlying claim is legally tenable and supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect of success.
47The plaintiff’s second hurdle, in terms of the merits-based assessment, is to establish that there are grounds to believe that the moving party has no valid defence to the proceeding.
48The plaintiff need not negate every imaginable defence, but only those put in play by the moving party.
49This assessment mirrors the substantial merit assessment: the plaintiff must show that there are grounds to believe its claim has a real prospect of success and that there are grounds to believe the defences have no real prospect of success. (Pointes-SCC, para. 60).
The Public Interest-Based Assessment
50Côté J. described the public interest-based assessment as the “crux of the analysis”. It directly engages the public interest and public participation implications of the anti-SLAPP provisions. It allows for the dismissal of otherwise meritorious claims if the public interest in protecting the expression in issue outweighs the public interest in allowing the proceeding to continue.
51This assessment requires the plaintiff to establish, on a balance of probabilities, that the harm suffered by, or likely to be suffered by, the plaintiff is so serious that the public interest in permitting the claim to continue outweighs the public interest in protecting the expression in issue.
52Harm must be established on an evidentiary basis, though it does not need to be quantified at this stage in the litigation. It is the existence of harm that is significant. The harm may be pecuniary or non-pecuniary, such as reputational harm. It must be causally connected to the expression.
53Once harm is made out, it must be weighed against the public interest. Here, the notion of “public interest” is somewhat different than it was in relation to the moving party’s threshold burden. Here the quality of the expression and the motivation behind it are relevant. (Pointes-SCC, para. 74).
54While cautioning against applying a “moral taste test”, Côté J. instructed that the court should consider whether the expression in issue touches on any of the core values that underly freedom of expression, including “the search for truth, participation in public decision making, and diversity in forms of self-fulfillment and human flourishing”. (Pointes-SCC, para. 77). She offered a list of other factors that may be relevant and worth considering, including:
(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.
III.
DISCUSSION
55I turn now to an application of the analytical framework to the circumstances of this case.
A. Does the Expression Relate to a Matter of Public Interest?
56There is no doubt that Mr. Bangash’s claim arises from an expression made by Mr. Patel. The petition is clearly an expression. Though Mr. Patel denies authoring it, he admits publishing it. This first aspect of the threshold is not contentious.
57Similarly uncontentious is the assertion by Mr. Patel that the expression relates to a matter of public interest. In the sense that the phrase “public interest” is understood in relation to s. 137.1(3), the threshold is low. Mr. Patel need demonstrate only that some segment of the community would have a genuine interest in receiving information on the subject. I am satisfied that the membership of the Society would have a genuine interest in receiving information similar to that contained in the petition.
B. The Merits
(i) Are There Grounds to Believe the Claim has Substantial Merit?
58Whether there are grounds to believe that Mr. Bangash’s claim has substantial merit depends on whether there are grounds to believe that there is a real prospect that he will be successful in making out the essential elements of a defamation claim.
59To make out a successful claim of defamation, a plaintiff must establish the following three essential elements, on a balance of probabilities:
(a) The defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
(b) the words referred to the plaintiff;
(c) the words were communicated to at least one person other than the plaintiff.
See Grant v. Torstar, as above.
(a) Was the expression defamatory?
60I will consider each essential element in turn.
61The first question is whether Mr. Patel made a defamatory statement. In other words, would reading the allegation that Mr. Bangash’s family members sold off a part of the Society’s lands and failed to properly account for the sale proceeds tend to lower Mr. Bangash’s reputation in the eyes of a reasonable person?
62A “reasonable person” has common sense, is reasonably thoughtful and well-informed and does not have an overly fragile sensibility. He or she is not naïve or unduly suspicious or avid for scandal. See Miguna v Toronto (City) Police Services Board, [2004] O.J. No 2455, at paras. 3-4, affirmed [2005] O.J. No. 107 (C.A.). He is she would understand the difference between allegations and proof of guilt.” See Frank v. Legate, 2015 ONCA 631, para. 40.
63Mr. Patel concedes that the whole of the petition, including the impugned passage, has a defamatory tone. I agree.
64Mr. Patel does not agree, however, that the expression in issue, correctly interpreted, implies that Mr. Bangash is dishonest, untrustworthy or that he has engaged in fraudulent or criminal conduct, as Mr. Bangash suggests it does. Again, I tend to agree.
65Context is undoubtedly important in determining the meaning of words and whether they are capable of being defamatory. As Hourigan J.A. observed at para. 48 of Frank v. Legate, as above, “Reading impugned comments in isolation is unfair and is of no assistance to the court in its analysis.”
66I have earlier set out the text of the particular expression in issue. While the entire petition is reproduced in Appendix “A”, I consider it sufficient, for the purpose of providing context, to reproduce here the impugned passage with the paragraph and heading that immediately precede it:
Lack of Transparency and Accountability
We all have donated hundreds and thousands of dollars over the years, and there’s no clear breakdown of where and how the funds are being used and shared with the community. There’s no financial statement being shared.
A portion of the property was sold by members of the leader’s family, and no one in the community was consulted about this - where did the funds from that transaction go?
67I can understand why some may view this passage as suggesting that Mr. Bangash’s family secretly sold off a parcel of the Society’s lands and misappropriated the proceeds. That would certainly be a plausible interpretation if the passage were read in isolation.
68But the passage must be considered in the overall context of the petition. The petition was a general indictment of Mr. Bangash’s leadership. It impugned, amongst other things, his unilateral decision-making, his lack of transparency and his failure to provide an appropriate level of financial disclosure to the membership of the Society. The sale of lands, allegedly without consultation, and the failure to explain what was done with the sale proceeds, is consistent with the overall theme of the petition. It is but one example of a lack of accountability.
69In the result, while I agree – and Mr. Patel concedes – that the impugned expression is defamatory, its defamatory nature lies in its criticism of Mr. Bangash for a lack of accountability and transparency.
(b) Was the expression about the plaintiff?
70There is no doubt that Mr. Bangash is the principle target of the petition. But the passage in issue refers to a sale of lands by “members of the leader’s family”.
71The passage does not accuse Mr. Bangash directly of selling off Society lands or of directly misappropriating money. If anything, it implicates members of his family in doing so.
72Arguably, the impugned passage implies that Mr. Bangash allowed the lands to be sold under his watch. And arguably, it implies that he knows how the sale proceeds were dealt with but has failed to account to the membership for them.
73The connection to Mr. Bangash is tenuous, but arguable.
(c) Was the expression published to more than the plaintiff?
74There is no dispute that the petition was widely circulated.
Conclusion
75It is not for me, of course, to decide this case on its merits at this early stage of the litigation. I have an understandably limited vantage point. I need only decide if there are grounds to believe that the claim, as constituted, has substantial merit.
76Again, the “grounds to believe” standard requires that there be a basis in the record and in law to make the finding that the claim has substantial merit.
77Having considered the limited evidentiary record, in light of the essential elements of a defamation claim, I am satisfied that Mr. Bangash’s claim is generally legally tenable. At least when considered in a manner untethered to the specific allegations in the Statement of Claim.
78When the claim is considered in the context of the pleadings, however, I am less persuaded about its prospects.
79Mr. Bangash has not taken issue, in the Statement of Claim, with the petition as a whole. He takes the position that, as a leader, he must accept that congregants have a right to question and criticize him. His claim is quite focused. It is based on the assertion that the impugned paragraph, properly interpreted, paints him as dishonest, untrustworthy and as having engaged in criminal activity.
80All that is to say, Mr. Bangash does not claim that he was defamed by allegations that he has been less accountable and transparent than desirable. He claims he was defamed by implied allegations of dishonesty, untrustworthiness and criminality. While I accept that one possible interpretation of the impugned expression involves dishonesty, I think the more reasonable interpretation, as I have said, is that it involves accusations of insufficient communication and accountability and a lack of inclusivity in decision-making. Read in that light, I think it unlikely that Mr. Bangash’s claim will succeed. I am not persuaded that it rises to the level of a real prospect of success.
81My conclusion with respect to this issue is sufficient to dispose of the motion and to dismiss the action. That said, I appreciate that others may take a different view of the claim’s chance of success. I will, in the circumstances, proceed with the balance of the analysis.
(ii) Are There Grounds to Believe There is No Valid Defence?
82The merits-based analysis has two components. The plaintiff must not only demonstrate that there are grounds to believe the claim as substantial merit. He must also demonstrate that there are grounds to believe that there are no valid defences.
83Mr. Patel has raised a number of defences in his pleadings. They include the failure to provide statutory notice of the claim, qualified privilege, responsible communication and fair comment. His counsel raised an additional defence – justification – in his factum and asks that I consider it as well.
84I will consider the defences in play in turn, keeping in mind that Mr. Bangash bears the onus to satisfy the court that there are grounds to believe that Mr. Patel does not have a valid defence to the claim.
The Notice Defence
85Section 5(1) of the Libel and Slander Act (the “LSA”) provides that no action for libel in a newspaper or broadcast lies unless the plaintiff gives the defendant notice of the matter complained of within six weeks of the date that the libel came to the plaintiff’s attention. The notice is to be served in the same manner as a statement of claim.
86In this instance, the libel appears to have come to Mr. Bangash’s attention on May 18, 2019. Mr. Bangash deposes at para. 51 of his Affidavit sworn August 26, 2021 that he put Mr. Patel on notice of his claim on June 6, 2019. That date is within six weeks of May 19, 2019. That said, Mr. Bangash did not provide any details about how he provided that notice or its contents.
87Mr. Bangash takes the position that the publication of the petition on Facebook and Change.org is not the equivalent of “broadcasting” it within the meaning of s. 5(1) of the LSA. He says his claim is not caught by that section.
88In support of his position, Mr. Bangash points to the case of Levant v. Day, 2017 ONSC 5956. In Levant, the court concluded that s. 5(1) of the LSA does not apply to expressions made via Twitter posts. He suggests that a similar finding ought to be made with respect to posts on other social media sites, like Facebook, and to websites like Change.org.
89Mr. Patel argues that the term “broadcast” has been given a broad interpretation by courts on other occasions. He points to caselaw from the Court of Appeal that confirms that s. 5(1) applies to both media and non-media defendants. See, for instance, Janssen-Ortho Inc. v. Amgen Canada Inc., 2004 CanLII 19660 (Ont. C.A.) at paras. 34-40.
90Mr. Patel submits that the notice requirement of s. 5(1) affords defendants an opportunity to mitigate damages by printing or broadcasting an apology or retraction. See Jansen-Ortho, at para. 38. He urges the court to conclude that the same rationale should apply to those posting arguably libelous expressions online. They should be entitled to notice so that they have an opportunity to mitigate any damages.
91This is not, in my view, the appropriate case to decide whether publishing defamatory statements online, on social media or other websites, is the functional equivalent to broadcasting, such that the notice requirements of s. 5(1) are triggered. It is not necessary that I make that determination, because the issue before me is whether Mr. Bangash has met his onus to establish grounds to believe that Mr. Patel has no valid defence(s) to his claim. Recall that the “grounds to believe” standard requires only that there be a basis in the record and in law to find that there is no valid defence.
92In this instance, the law is clearly unsettled. The notice requirement of s. 5(1) may well apply. I am unable to conclude, in the result, that there are grounds to believe there is no valid defence under s. 5(1).
93I am not otherwise particularly impressed with the balance of Mr. Patel’s defences, specifically, justification, qualified privilege, responsible communication and fair comment.
Justification
94Mr. Bangash argues that Mr. Patel has not put the defence of justification in play and that I should therefore not consider it. He says putting a defence in play requires the defendant to plead it, with particulars. He cites Magno v. Balita Media Inc., 2018 ONSC 3230 in support of that assertion.
95I do not read Magno the same way that Mr. Bangash does. It is a ruling on a summary judgment motion. The presiding justice, Ferguson J., went no further, in my view, than to confirm well-known authority that cases are to be decided within the four corners of the pleadings. I am not persuaded that her decision can readily be applied to the concept of “putting defences in play” for the purpose of an anti-SLAPP motion brought in the early stages of an action.
96At any rate, I need not decide that issue. Even if the defence of justification is put in play, it does not help Mr. Patel.
97In Grant v. Torstar, as above, the Supreme Court held that once a prima facie showing of defamation is made out, the words complained of are presumed to be false. A defendant can rebut that presumption by adducing evidence that the main thrust of the statement was substantially true. Partial truth is not a defence. See Bent v. Platnick, 2020 SCC 23 at para. 107.
98The thrust of the impugned assertion is that Mr. Bangash’s family members sold off some of the Society’s lands and failed to account for the sale proceeds. That assertion is demonstrably false. No portion of the Society’s lands was sold and, accordingly, there were no sale proceeds to account for.
99The defence of justification does not assist Mr. Patel.
Qualified Privilege
100The Court of Appeal instructed in RTC Engineering Consultants Ltd. v. Ontario (Ministry of the Solicitor General and Correctional Services), 2002 CanLII 14179 (ON CA), [2002] O.J. No. 1001, that the defence of qualified privilege attaches to the occasion when a defamatory statement is made, not to the statement itself. In other words, a person may defame another, without attracting liability, provided the occasion is one of qualified privilege.
101What amounts to an occasion of qualified privilege was examined by the Supreme Court in Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3, where, at para. 78, Cory J. adopted the following explanation of Lord Atkinson in Adam v. Ward, [1917] A.C. 309 (H.L.) at p. 334:
. . . a privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.
102Qualified Privilege can be defeated where it can be shown that the scope of the occasion of privilege was exceeded or where the dominant motive behind the expression was malice, including where the speaker was reckless as to the truth of the words spoken. See Bent at para. 121.
103Mr. Patel asserts that he had an interest in bringing to the attention of other members of the Society, issues that that he perceived to be afflicting the Society. He says that other members of the Society had a corresponding interest in receiving the information.
104I am not satisfied that the defence of qualified privilege has any validity. I say that for three reasons:
(a) Mr. Patel has not sufficiently identified the “privileged occasion” in question in order to lend validity to this defence. I appreciate that the court is not expected to take a deep dive into the merits of the proceeding on this motion. But Mr. Patel has not, in my view, sufficiently explained his duty to publish the impugned utterance, nor the duty of other members to receive it;
(b) Mr. Patel published the petition to the world at large when it was posted to Facebook and to Change.org. Generally, the defence of qualified privilege is defeated where the communication is published to an excessively wide field. See Jones v. Bennett, 1968 CanLII 126 (SCC), [1969] S.C.R. 277 at page 285. See also Canadian Standards Association v. P.S. Knight Co. Ltd., 2019 ONSC 1730 at para. 58; and,
(c) As I will explain below, I find that the impugned expression was made recklessly, without due regard for its veracity.
105I am satisfied, in short, that there are grounds to believe the defence of qualified privilege is not valid.
Responsible Communication
106Citing the Supreme Court’s decision in Grant v. Torstar, as above, at paras. 498-530, Thorburn J.A. described the defence of responsible communication at para. 58 of Subway, as follows:
The defence of responsible communication will apply where the publication is on a matter of public interest, and the publisher diligently tried to verify the allegation taking into account:
(a) the seriousness of the allegation;
(b) the public importance of the matter;
(c) the urgency of the matter;
(d) the status and reliability of the source;
(e) whether the plaintiff's side of the story was sought and accurately reported;
(f) whether the inclusion of the defamatory statement was justifiable;
(g) whether the defamatory statement's public interest lay in the fact that it was made rather than its truth ("reportage"); and
(h) any other relevant circumstances.
107In my view, there are grounds to believe that the defence of responsible communication is not a valid defence. The allegation that Mr. Bangash, or members of his family, sold off a parcel of the Society’s land and failed to account for it is a sufficiently serious allegation that it warranted some investigation before it was made.
108Mr. Patel’s evidence on cross-examination was that there were rumblings in the community that Mr. Bangash had sold part of the property. He did not know whether it was true but thought it could be true because a number of members of the Society felt like there was no transparency. He said that the person who actually wrote the impugned reference to a parcel of land being sold was a land developer. Mr. Patel assumed the person knew what he was talking about. He would not reveal the person’s name under cross-examination and could not recall precisely what the land developer told him. He thought that the developer had told him he had heard it from others in the community.
109Mr. Patel took no steps to confirm the accuracy of what he heard.
110In the meantime, Mr. Patel had a copy of the parcel register with respect to the Society’s lands from some time in 2017 which made it clear that no part of the lands had been sold up until that point. He had obtained the parcel register because people were saying that Mr. Bangash had registered the Society’s lands in his own name. He confirmed that those people were wrong. He did not order an updated copy of the parcel register before publishing the petition, even though he obviously had the wherewithal to do so and even though doing so was a minor undertaking.
111In my view, it is not responsible communication to make a demonstrably false accusation, on the basis of double hearsay, when the truth of the accusation could have been discovered by simply ordering another copy of the parcel register.
Fair Comment
112A party advancing the defence of fair comment must meet a five-part test. See Grant v. Torstar, as above, at para. 31. To wit:
(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 recognisable as comment;
(d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and
(e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.
113While I accept that the impugned expression related to a matter of public interest, it cannot be said that it was based on fact. Indeed, as I have said, it was demonstrably false. There are grounds to believe, in my view, that the defence of fair comment will fail.
Conclusions on the Merits-Based Analysis
114The merits-based analysis drives the court to an assessment of the apparent strength of the plaintiff’s case viewed in the context of the defences raised. The court is asked to assess whether there are grounds to believe that the case has substantial merit and that there are no valid defences proffered by the defendant.
115For the foregoing reasons, I have concluded that Mr. Bangash has not satisfied me that there are grounds to believe that his case has substantial merit. While most of the defences put in play by Mr. Patel are weak, I cannot say the same for the notice defence. It is a matter of unsettled law and I think there is at least a reasonable prospect that Mr. Patel’s publication of the petition in two locations online amounts to a broadcast. On that basis, I conclude that Mr. Bangash has failed to satisfy me that there are grounds to believe that no valid defences have been put in play.
116In the result, I conclude that Mr. Bangash has failed to meet his burden on the merits-based assessment.
117I concede that this case is a close call. The claim is not without merit, but Mr. Bangash falls short of satisfying me that there are grounds to believe that it has substantial merit. The defences offered up by Mr. Patel are by and large weak, but at least one appears to have some validity.
118Others may take a different view about the relative merits of the case. I accept that reasonable people may differ about the interpretation of the expression in issue. That said, in my view, even if this case managed to get across the merits threshold, it would only just do so. And the weakness of the case, even if I were to have found that it met the merits-based threshold, is a factor that would be significant in the final prong of the analysis, which I come to now.
Weighing the Public Interest
119Freedom of expression is a right of fundamental importance to our society and indeed to any flourishing democracy. The following is a sample of some of the language used by Canadian appellate courts to describe the significance of freedom of expression:
Freedom of expression is…essential to the functioning of our democracy, to seeking the truth in diverse fields of inquiry, and to our capacity for self-expression and individual realization.
Grant v. Torstar, as above, at para. 1, per McLachlin C.J.C.
This Court recognizes the importance of freedom of expression as the cornerstone of a pluralistic democracy.
Platnick v. Bent, as above, at para. 1, per Côté J.
Freedom of expression is a fundamental right and value; the ability to express oneself and engage in the interchange of ideas fosters a pluralistic and healthy democracy by generating fruitful public discourse and corresponding public participation in civil society.
Pointes-SCC, at para. 1, per Côté J.
Freedom of expression is a constitutionally protected right in Canada. The free and open expression of divergent, competing and strong viewpoints on matters of public interest is essential to personal liberty, self-fulfillment, the search for the truth and the maintenance of a vibrant democracy.
Pointes-CA, at para. 1, per Doherty J.A.
120Despite the law’s assiduous protection of the right to free expression, it is not entirely unrestrained. The law of defamation represents one limit on the freedom individuals have to express themselves. As Côté J. observed in Pointes-SCC, at para. 1, citing Grant v. Torstar, the right to free expression does not confer a license to ruin reputation. Reputation, she said, quoting noted American jurist, Benjamin Cardozo, can be likened to “a plant of tender growth whose blossom, once lost, is not easily restored.”
121I come now to the crux of the analysis: the weighing of the harm done to Mr. Bangash – particularly to his reputation – against the public interest in protecting the expression in issue.
122I accept that publication of the petition has caused Mr. Bangash harm to his reputation. He has been asked about it by colleagues around the world. I have no doubt that it has caused him embarrassment in his local community and beyond.
123The central question, however, is whether the harm occasioned to Mr. Bangash, by the expression in issue, is so serious as to outweigh the public interest in protecting the expression in issue. In my view, the answer is no.
124Again, the impugned passage must be considered in context. The petition is reasonably lengthy. In general, it expresses the opinion – shared evidently by a group of concerned members of the Society – that Mr. Bangash has fallen short in his leadership; that he has demonstrated a lack of transparency and accountability and a failure of initiative. Those opinions are the “sting” of the petition. The publication of those opinions would be harmful to Mr. Bangash’s reputation locally and abroad. Yet those opinions are not what Mr. Bangash complains of. Indeed, he accepts that congregants are entitled to voice their concerns about their leaders. He complains only about the one discrete passage involving the alleged sale of Society lands. In my view, any harm caused by that one impugned passage would add relatively little to the overall impact of the petition on Mr. Bangash’s reputation.
125In other words, considered in context, the impugned expression, even if defamatory, is rather small beer. It is certainly not likely to give rise to significant damages even in the event that the lawsuit is successful. The resources that will be required to litigate this case will very quickly outstrip any reasonably expected damages award. Indeed, I suspect they already have.
126Moreover, the petition – including the impugned expression – sought to promote transparency and accountability from the leader of a significant community religious centre. That expression was a generally worthy endeavour; one worth protecting. The expression here, although it included a false premise in one respect, generally touched on the core values of truth-seeking, participation in institutional decision-making and accountability.
127This is a claim of, at best, modest merit, where damages will, at best, be modest. At the same time, it will require a disproportionate amount of resources to litigate and it will encroach of the freedom of expression of Mr. Patel and other members of the Society who share his views.
128In the circumstances, I am not persuaded that the harm suffered by Mr. Bangash is so serious that the public interest in permitting his claim to continue outweighs the public interest in protecting the expression in issue.
129In the result, the motion is granted. The action is dismissed.
130The parties are encouraged to reach an agreement on the issue of costs. If they are unable to do so they may make written submissions on a 14-day turnaround. Mr. Patel’s submissions are to be served and filed by December 7, 2021 and Mr. Bangash’s by December 21, 2021.
C. Boswell J.
Released: November 23, 2021
APPENDIX “A”
Asalaam Alaikum, Dear York Region Community Member,
After 20 years of tireless efforts to drive growth and change within Islamic Society of York Region (ISYR), it saddens us to say that we as a community have failed to speak up, and have played a passive role in developing a strong and positive place that will bring goodness to our children, parents and ourselves and cause positive changes in our lives and the generations to come within York Region.
Forbes defines a great leader as one who is honest, delegate, and has the intuition to make the right choices. The self-appointed leader at ISYR has also failed to show any of these characteristics in the last decade. He has made commitments to the community as the Imam that he has failed countless times; the state of the centre has not improved in years, and the little programs he has started have been poorly managed and organized as mere means to collect funds.
The property of the centre has been funded by the community and has resources that the community members could greatly benefit from, yet he has not even considered their utilization. We as concerned members of the community wanted to take a few moments to share the following to bring some awareness to the challenges and concerns we feel you should all be aware of.
Lack of Transparency and Accountability
We all have donated hundreds and thousands of dollars over the years, and there’s no clear breakdown of where and how the funds are being used and shared with the community. There’s no financial statement being shared.
❌A portion of the property was sold by members of the leader’s family, and no one in the community was consulted about this - where did the funds from that transaction go?
❌Members of the board have reported that they have not been invited to a board meeting in the last 10 years. This is against Canadian and Islamic values.
❌There are no voting, membership, or community meetings that all major masjids in GTA have.
❌There’s no platform that allows members of the community to openly share their concerns and have any form of engagement about how and what happens within this community
❌There’s no real shura, all decisions are exclusively led by one person
Mismanagement and Misuse of the Property
❌The back corner of the property has a fence perfect for a baseball diamond, yet it is used as a garden of weeds
❌The swimming pool that came with the property has been destroyed due to lack of maintenance
❌The closed off tennis court in the back is not maintained, yet it stores stalled trucks
❌The leader uses the property for his personal use to run his own 3rd party publication and ventures
❌These ventures have caused massive political issues between ISYR, Muslims of York Region and have placed our community at risk, which has led to the ban on developing of a mosque in Richmond Hill for at least another 10 years
❌Prayers are not offered 5 times a day in the centre. The place is not a welcoming environment for children to play, learn and be active on an ongoing basis
❌There is no basketball court outside or inside for our youth and future. No gymnasium for them but rather there is not one but two banquet halls.
❌No formal programming/activities are being offered or led by ISYR, everything is being done by small community activated groups that have got frustrated after tireless attempts to drive change
❌Development projects (including the ‘seniors’ project, which was changed after it was 90% built to a school, which now is called a ‘building’ project), to just support his constant fundraising tactics
Lack of a Qualified, Loving and Experienced Leader
❌The current leader is a self-proclaimed Imam, without any formal training and/or ijazah that officially considers him an Islamic Scholar, Shaikh, Teacher in any Imam circles of being considered an Imam
❌He has been leading ISYR alone for 20 years without giving the community the right to vote and decide. He is rude, arrogant and constantly rudely mocks women and children, by making fun of their attire, the children’s noise, and their behaviors
❌There’s no full time, qualified Islamic Scholar who can lead, engage, grow and strengthen our community, whose main mission is to share inspiring stories and teachings designed to spreading goodness with love, compassion, and patience
Dear members of the community, we have all tried in several ways to discuss these matters with this leader, but they all fallen on deaf ears and there is always a resistance of change, community engagement and a willingness to bring in experienced, seasoned and caring leaders from within this beautiful community to assist in solving all of these issues. Some of the best gems of our community have migrated to the west end, because they have given up and do not want their kids to be raised in this non-inclusive, non-active, disengaged community, we all call home.
We ask that you work with us, visit our petition site and lets come together to push the leader to sit down with the community, address these concerns and work with all of us to deliver a plan and provide him or someone else the support to execute on this simple, yet powerful plan that can reshape not just the Muslim community within York Region, but above all create a landmark of goodness, truth, and excellence for all members of the Muslim Community, across the GTA.
Please sign the petition at SaveISYR.com, and show your support to cause a strong, selfless and passionate mission to drive change and bring all of us together insha’Allah.
We end with the wise words of our Beloved Leader, the Messenger of Allah (صلى الله عليه وسلم (who said, “Whosoever of you sees an evil, let him change it with his hand; and if he is not able to do so, then [let him change it] with his tongue; and if he is not able to do so, then with his heart — and that is the weakest of faith.” [Muslim]
Please go here to sign the petition today: SaveISYR.com
Jazak’Allah,
Your Muslim Neighbours