Joseph Volpe and M.T.E.C. Consultants Ltd. v. Kristyn Wong-Tam et al.

COURT FILE NO.: CV-21-00660297-0000 DATE: 20220526 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOSEPH VOLPE and M.T.E.C. CONSULTANTS LTD., Plaintiffs AND: KRISTYN WONG-TAM, PAUL AINSLIE, YAHOO MEDIA GROUP INC., ELIZABETH DI FILIPPO, FRESHDAILY INC., MEDIA CENTRAL CORPORATION INC., ENZO DIMATTEO, MARIA RIZZO, NORM DI PASQUALE, MARKUS DE DOMENICO and IDA LI PRETI, Defendants

BEFORE: Justice Glustein

COUNSEL: Paul Slansky, for the plaintiffs Kevin McGivney and Natalie D. Kolos, for the defendants Kristyn Wong-Tam and Paul Ainslie Jeremy Opolsky, Ryan Lax and Adrienne Oake, for the defendant Maria Rizzo Tim Gleason and Amani Rauff, for the defendant Ida Li Preti Iain A.C. MacKinnon, for the defendants Norman Di Pasquale and Markus De Domenico Andrew W. MacDonald and Emma K. Romano, for the defendants Yahoo Canada Corp. and Elizabeth Di Filippo

HEARD: April 20 and 21, 2022

REASONS FOR DECISION

Nature of motion and overview

[1] There are five motions before the court, brought by (i) the defendants Kristyn Wong-Tam (Wong-Tam) and Paul Ainslie (Ainslie), (ii) the defendant Maria Rizzo (Rizzo), (iii) the defendant Ida Li Preti (Li Preti), (iv) the defendants Norman Di Pasquale (Di Pasquale) and Markus de Domenico (de Domenico), and (v) the defendants Yahoo Canada Corp. (Yahoo Canada)[^1] and Elizabeth Di Filippo (Di Filippo), collectively referred to as the Yahoo Defendants.

[2] In each of those motions, the defendants ask the court, under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to dismiss the present defamation action (the Action) brought by the plaintiffs, Joseph Volpe (Volpe) and M.T.E.C. Consultants Ltd., which operates as Corriere Canadese (Corriere), an Italian-Canadian newspaper.

[3] The defendants submit that the Action is a strategic lawsuit against public participation (“SLAPP”). The s. 137.1 motion is commonly referred to as an “anti-SLAPP” motion.

[4] The defendants Wong-Tam and Ainslie are elected councillors representing Wards 13 and 24 respectively of the City of Toronto (the City).

[5] The defendants Rizzo, Di Pasquale, de Domenico, and Li Preti, are elected trustees of the Toronto Catholic District School Board (TCDSB) representing Wards 5, 9, 2, and 3 respectively of the City.

[6] The defendant Yahoo Canada operates a website (the Yahoo Website) where it publishes news, finance, sports, style and entertainment content by its own staff, freelancers, and third-party content providers. Di Filippo is a journalist employed by Yahoo Canada as a Lifestyle Editor.

[7] In a series of 28 articles written by Volpe over a 12 week period between October 17, 2020, and January 8, 2021, and published in Corriere (the Initial Articles), Volpe strongly opposed various positions taken by the defendant trustees with respect to issues affecting the LGBTQ2S+ community in the TCDSB. In those articles, Volpe labelled the defendant trustees as “virtue-signalling thugs”, a “rat pack”, “terrorists”, and “buffoons”.

[8] In the Initial Articles, Volpe made numerous comments about the LGBTQ2S+ community, including the following:

(i) “(the LGBTQ2+)[^2] have taken aim to tear the [public Catholic school][^3] system down”;

(ii) “(the LGBTQ2+)” are “militant radical, self-proclaimed advocates of ‘non-religious’ value structure” who engage in “tactics [which] are insidious, malicious and designed to tar and feather anyone who does not agree with them”;

(iii) “(the LGBTQ2+)” have “seized control of due process to dictate an agenda no self-respecting adult would foist on any child”, with that agenda having been put forth by “former Premier Kathleen Wynne (an openly lesbian politician who left her male husband for another woman) to implement. That’s her business”;

(iv) Volpe’s heterosexual “standards of sexual propriety” provide “yet another safeguard against predators who would victimize” Volpe’s children;

(v) “… the LBGQT2+ lobby [is] probably the most intolerant organization around”; and

(vi) “radical activists from the LGBTQ2+ community have launched what can only be described as an all-out witch hunt to eradicate the Catholic ethic from Ontario’s School system”.

[9] On January 8, 2021, Volpe published an article (the YouthLine Article) in which he criticized the defendant trustees for their support of a link on the TCDSB website to the Lesbian Gay Bi Trans Youth Line (LGBT YouthLine) website, operated by a youth-led, non-profit organization that provides resources, anonymous peer support and referrals to LGBTQ2S+ youth.

[10] In the YouthLine Article, Volpe made the following comments:

(i) “[LGBT YouthLine] is a recruitment site operated by a self-professed LGBTQ+ umbrella organization to attract children that operates province wide”;

(ii) supporters of LGBT YouthLine are “urban social terrorists [who] tear apart the Catholic educational system with wild accusations and smear campaigns to distract from the obvious”;

(iii) “anyone ‘trolling’ that [LGBT YouthLine] website should be considered a pedophile”; and

(iv) LGBT YouthLine, and the trustees who supported it, were engaged in “insidious and odious” conduct and were “someone, or some structure, that feigns the interest of the most vulnerable – our children – then exposes their innocence to exploitation by others”.

[11] On the same day as the YouthLine Article was published, the TCDSB removed the LGBT YouthLine link from its website. After criticism of that decision by both LGBT YouthLine and social media, and media reports including an article published on the Yahoo Website on January 12, 2021 (the Yahoo Article), the TCDSB reversed its decision and reinstated the link to the LGBT YouthLine website on January 13, 2021.

[12] Following the YouthLine Article, the defendant councillors and trustees responded, by

(i) three tweets from Wong-Tam dated January 11, 2021, and a tweet from Wong-Tam dated January 14, 2021 (collectively, the Tweets),

(ii) a proposed motion on January 28, 2021, by Wong-Tam and seconded by Ainslie (the Motion), which proposed that the City cease all paid advertisements in Corriere and require Corriere to comply with the City’s Human Rights and Anti-Harassment/Discrimination Policy (HRAP) and sign a “Declaration of Compliance with Anti-Harassment/Discrimination Legislation & all other related City policies” (the Declaration),

(iii) a joint letter written by the defendant trustees on February 1, 2021, addressed to Mayor Tory and City Council, expressing support for the Motion (the Joint Letter), and

(iv) statements made by Wong-Tam, Ainslie, Rizzo, and Di Pasquale at a YouTube virtual press conference held on March 9, 2021, in support of the Motion (the Press Conference Statements).

[13] In the above statements, the councillor and trustee defendants strongly disagreed with the statements of Volpe in the Initial and YouthLine Articles. The defendants forcefully advocated in support of their view that the LGBT YouthLine link was a vital resource for LGBTQ2S+ students at the TCDSB, and that the Motion was appropriate because, in their opinion, public taxpayer funds should not be used to support newspapers which expressed the views in the Initial and YouthLine Articles.

[14] During the course of the comments, the councillor and trustee defendants stated their view that Volpe and Corriere were homophobic, transphobic, and anti-LGBTQ2S+.

[15] In the Yahoo Article, Di Filippo stated that Volpe had “well documented anti-LGBTQ+ views”.

[16] I refer to the impugned statements in the Tweets, Motion, Joint Letter, Press Conference Statements, and Yahoo Article as the “Impugned Statements”.

[17] The plaintiffs then brought the Action, issuing a statement of claim on March 5, 2021, and a “Superseding Statement of Claim” on April 12, 2021, seeking more than $30 million in damages. The moving party defendants have brought the present motions to dismiss the Action as a SLAPP action.

[18] For the reasons that follow, I grant the motions and dismiss the Action. I find that:

(i) The defendants have met the threshold under s. 137.1(3) to establish that the proceeding arises from an expression that relates to a matter of public interest, which includes (i) the decision of the TCDSB to remove and reinstate the LGBT YouthLine link, (ii) the issue of whether public taxpayer funds should be used for advertisements in media which expressed the views in the Initial and YouthLine Articles, and (iii) the responsibilities of the trustees and councillors to represent their constituents (including LGBTQ2S+ students, parents, and teachers) and ensure an inclusive and safe school environment;

(ii) The plaintiffs have established under s. 137.1(4)(a)(i) that there are grounds to believe (i.e., the legal and evidentiary analysis on the motion weighs in favour of the plaintiffs) that the defamation claim has substantial merit. Expressing the view that a plaintiff is homophobic, transphobic, or anti-LGBTQ2S+ would tend to lower the plaintiff’s reputation in the eyes of a reasonable person.

However, the plaintiffs have not established under s. 137.1(4)(a)(i) any grounds to believe that the remaining causes of action (misfeasance in public office, inducing breach of contract, or wrongful interference with economic relations) have any substantial merit. There is no evidence to find any bad faith, excess of powers, intention to cause a breach of contract, or an unlawful act. Consequently, the plaintiffs have failed to demonstrate that it weighs in their favour that the other claims are valid;

(iii) The plaintiffs have failed to establish under s. 137.1(4)(a)(ii) that there are grounds to believe that (a) the defence of fair comment raised by all defendants or (b) the defences raised by particular defendants of qualified privilege, justification, statutory immunity under s. 391 of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A (the CTA), and responsible communication are not valid defences.

While the court on an anti-SLAPP motion does not assess the full merits of a defence as at trial, the plaintiffs have failed to demonstrate that it weighs in their favour that none of those defences are valid. In brief:

(a) Fair comment: The views expressed by all of the defendants were recognizable as comment on a matter of public interest and had a basis in fact arising from the Initial and YouthLine Articles. The comments were those that any person could honestly make and there is no evidence of malice;

(b) Qualified privilege: The statements made by the defendant trustees and councillors were in the context of their duty to advise their constituents and the City about compliance with the HRAP, and the City electorate had a duty to receive such information;

(c) Justification: If the defamatory statements were held to be facts (which I do not find), then the statements in the Initial and YouthLine Articles support a finding that the plaintiffs are homophobic, transphobic, and anti-LGBTQ2S+;

(d) Section 391 of the CTA provides immunity to councillors for acts done in good faith in the course of their duties, which can be met on the evidence;

(e) Responsible communication: The Yahoo Defendants reported on a matter of public interest, and were diligent in trying to verify the allegation; and

(iv) The plaintiffs have not established under s. 137.1(4)(b), on the balance of probabilities, that the harm suffered from the Impugned Statements is “sufficiently serious” that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the defendants’ expression. There is little or no evidence of harm, weighed against the importance of the defendants’ expression seeking to ensure LGBTQ2S+ inclusion in the TCDSB, the use of public taxpayer funds for City advertising, and the safety of LGBTQ2S+ students in the TCDSB, particularly in the context of the public debate in which the plaintiffs were engaged.

Facts

The parties

[19] M.T.E.C. Consultants Ltd. carries on business as Corriere, an Italian and English daily newspaper that publishes a hard copy and online.

[20] Volpe is the President and Publisher of Corriere, and regularly writes articles for the newspaper. He is a former politician, as a member of Parliament from 1998 to 2011, and a cabinet minister from December 2003 to February 2006.

[21] Wong-Tam is the City councillor representing Ward 13, first elected in 2010.

[22] Ainslie is the City councillor representing Ward 24, first elected in 2006.

[23] Rizzo is the TCDSB trustee representing Ward 5, first elected in 2003.

[24] Di Pasquale is the TCDSB trustee representing Ward 9 since October 2018.

[25] De Domenico is the TCDSB trustee representing Ward 2 since October 2018.

[26] Li Preti is the TCDSB trustee representing Ward 3 since October 2018.

[27] Yahoo Canada operates the Yahoo Website where it publishes news, finance, sports, style, and entertainment content by its own staff, freelancers, and third-party content providers.

[28] Di Filippo is a journalist employed by Yahoo Canada as a Lifestyle Editor. Her role includes writing and editing content for the Yahoo Website.

Statutory and other responsibilities of councillors and trustees

(i) Councillors

[29] Section 131 of the CTA provides:

It is the role of city council,

(a) to represent the public and to consider the well-being and interests of the City;

(b) to develop and evaluate the policies and programs of the City;

(c) to determine which services the City provides;

(d) to ensure that administrative policies, practices and procedures and controllership policies, practices and procedures are in place to implement the decisions of council;

(e) to ensure the accountability and transparency of the operations of the City, including the activities of the senior management of the City;

(f) to maintain the financial integrity of the City; and

(g) to carry out the duties of council under this or any other Act.

[30] On October 2, 2019, the City approved the HRAP, which states, “[t]he City of Toronto will not tolerate, ignore, or condone discrimination or harassment and is committed to promoting respectful conduct, tolerance and inclusion.” Among others, the HRAP applies to all of the City’s elected officials.

[31] The HRAP mandates that all contracts with third party individuals and organizations delivering services to the City must include a signed copy of the Declaration and are subject to contract provisions regarding consequences for non-compliance.

(ii) Trustees

[32] The TCDSB has approximately 90,000 students and is the largest Catholic school board in Canada. They are “separate schools” whose existence is protected by the Constitution Act, 1867. They are operated by civil authorities called separate school boards. TCDSB trustees are elected municipally and are accountable to the provincial government.

[33] The Education Act, R.S.O. 1990, c. E.2 sets out the duties of a school board trustee. In particular, every school board must (i) “promote a positive school climate that is inclusive and accepting of all pupils, including pupils of any … sexual orientation, gender identity, gender expression” (s. 169.1(1)(a.1) of the Education Act requires that and (ii) “promote the prevention of bullying” (s. 169.1(1)(a.2).

[34] Under s. 218.1(a) of the Education Act, trustees have the further duty to “maintain focus on student achievement and well-being”.

[35] The TCDSB is guided by its Code of Conduct, which promotes an “inclusive community rooted in the love of Christ… having due regard to the (a) Teachings of the Catholic Church, as expressed through various documents of the Universal Church, the Bishops of Canada, the Bishops of Ontario, and the Archdiocese of Toronto; (b) Education Act, Sections 1(4); 169.1; 301…”.

[36] The Catholic Bishops of Ontario’s “Pastoral Guidelines to Assist Students of Same Sex Attraction” also direct Catholic schools to “consciously create an environment where students who feel marginalized, rejected or vulnerable can experience safe, nurturing, inclusive communities of faith”.

[37] One of the policies of the TCDSB that trustees are required to uphold and protect is the “Catholic Equity and Inclusive Education Policy,” which states that, “The Toronto Catholic District School Board (the ‘Board’) recognizes that all people are deserving of dignity and are created equal in the image of God, each with inimitable characteristics (Genesis: 1:27). In accordance with the Catholic Faith and the Church’s moral teachings as found in the Catechism and other teachings of the Magisterium, the Board provides an educational environment which supports and embraces diversity within its Catholic community, demonstrates respect for all, and values each as child of God”.

[38] Trustees also act as education advocates. At the local level, trustees work on behalf of the community and consider the unique needs of their communities when deciding what position to take on any issue. A trustee’s role as an education advocate often extends beyond the boundaries of the district school board and they often liaise with members of government, the school system, and with local organizations or individuals in the community. An important role as a trustee is to maintain a focus on students’ well-being and equity, and to participate in making decisions that benefit the board's entire jurisdiction while representing the interests of their constituents.

Activism of defendant councillors and trustees

[39] All of the counsellor and trustee defendants have a long history of activism and advocacy in the public interest, particularly with respect to human rights and LGBTQ2S+ issues.

LGBT YouthLine

[40] As part of its response to concerns about bullying and discrimination against LGBTQ2S+ staff and students, the TCDSB created a link on its website to the website for LGBT YouthLine, which is an LGBTQ2S+ youth-led non-profit organization that provides anonymous peer support and referrals, trains youth to provide support to other youth, and provides resources so that LGBTQ2S+ youth can make informed decisions. Its activities include:

(i) providing a confidential peer-based phone line and texting/live online chat services to allow LGBTQ2S+ youth to communicate with peers about various issues, including gender identity and/or sexual orientation, coming out, mental health, relationships with friends, partners, and family, social isolation, and other challenges they may be facing,

(ii) maintaining a confidential database of organizations serving LGBTQ2S+ youth,

(iii) maintaining a list of resources on various issues affecting LGBTQ2S+ youth,

(iv) running the Provincial Youth Ambassador Project, the 2019 cohort of which led an assessment of the experiences and needs of LGBTQ2S+ youth in Ontario resulting in the “Do Better: 2SLGBTQ+ Youth Recommendations for Change in Ontario” report setting out recommendations to organizations, government, etc., as to how to better support LGBTQ2S+ youth,

(v) running YouthOrganize, a ten-month volunteer program that brings LGBTQ2S+ youth together to create and/or continue organizing initiatives, providing them with access to skill-based training, project funding, and virtual community building, and

(vi) providing outreach materials to schools, organizations, and community spaces to share in their spaces or provide to youth with whom they engage.

The Initial Articles

[41] In a series of 28 articles written over a 12 week period between October 17, 2020, and January 8, 2021 (previously defined as the Initial Articles), Volpe strongly opposed positions taken by the defendant trustees relating to the LGBTQ2S+ community in the TCDSB.

[42] The plaintiffs submit that the only purpose of the Initial and YouthLine Articles was to raise the issue of whether TCDSB policies with respect to the LGBTQ2S+ community were in accordance with Roman Catholic doctrine. I review Volpe’s statements in those articles in some detail below, as they are the bases upon which the defendants made the Impugned Statements describing the plaintiffs, and the Initial and YouthLine Articles, as homophobic, transphobic, and anti-LGBTQ2S+.

[43] In an article dated October 15, 2020, entitled “Another gadfly soiling the reputation of Catholic institutions”, Volpe criticized the TCDSB for allowing one of its teachers to express concern about trustee Del Grande’s comments in which he compared the inclusion of terms such as gender identity in the TCDSB Code of Conduct to terms such as “bestiality”, “pedophilia”, “cannibalism”, “auto-erotic asphyxiation”, and “auto-vampirism”.

[44] In the October 15, 2020 article, Volpe inferred that the heterosexual standard of “sexual propriety” he “prefer[red]” would be a “safeguard against predators who would victimize” his children. He wrote:

For example, like most men, I prefer the intimate company of women – one woman in particular. If I chose not to leave her or to abandon her for a man, that would not make me homophobic. Nor would it make me homophobic if I wish to place my children in an environment where standards of sexual propriety serve as yet one more safeguard against predators who would victimize them. [Emphasis added.]

[45] In an article dated November 3, 2020, entitled “Pompous and ineligible as Catholic Trustee M de D attempts to ride Minister Lecce”, Volpe criticized de Domenico for his efforts to make public an investigation into Del Grande’s comments. Volpe described de Domenico and his “allies in the LGBTQ+” as “snivellers who hold convicted creator, counsellor to and purveyor of child pornography—former Deputy Minister of Education and special advisor to Kathleen Wynne—as their ‘mentor’” (emphasis added).

[46] In an article dated November 6, 2020, entitled “Minister Stephen Lecce takes control of the TCDSB”, Volpe described “the LBGQT2+ lobby” as “probably the most intolerant organization around”, and described the four defendant trustees as individuals “to whom radical activist gadflies with their counter-culture Catholicism gravitated” (emphasis added).

[47] In an article dated December 4, 2020, entitled “Code of conduct thuggery, gangsterism and persecution”, Volpe described those seeking inclusion of LGBTQ2S+ protections in the TCDSB Code of Conduct as “radical activists from the LGBTQ2+ community [who] have launched what can only be described as an all-out witch hunt to eradicate the Catholic ethic from Ontario’s School system” (emphasis added).

[48] In an article dated December 8, 2020, entitled “Time to put sexualized virtue-signalling thugs in their place”, Volpe:

(i) described “the LGBTQ2+” community as “militant radical, self-proclaimed advocates of ‘non-religious’ value structure (the LGBTQ2+)”,

(ii) accused “(the LGBTQ2+)” of having “taken aim to tear the system down”,

(iii) identified “(the LGBT2Q+)” as following an agenda proposed by a “convicted child pornographer” in league with “an openly lesbian politician who left her male husband for another woman”,

(iv) stated that “(the LGBTQ2+)” had “seized control of due process to dictate an agenda no self-respecting adult would foist on any child”,

(v) described LGBTQ2S+ “tactics” as “insidious, malicious and designed to tar and feather anyone who does not agree with them”, and

(vi) described the four defendant trustees as having engaged in “‘moral’ thuggery” and “virtue-signalling” (emphasis added).

[49] In articles written by Volpe dated November 23, December 4, and December 8, 2020, he described one or more of the defendant trustees as “thugs”, “buffoons”, and “gangsters”.

Pizza Nova removes advertising from Corriere

[50] On November 17, 2020, a tweet was published by @Hashtag Kyle, who commented:

Sad to hear @PizzaNova is supporting Corriere Canadese’s homophobic & transphobic publication. #pizza #pizzanova @PizzaNova hit me up for details; not sure you want to be associated with Volpe’s homophobic & transphobic rants – our community supports your Church St location well. [Emphasis added.]

[51] Pizza Nova immediately withdrew its advertising from Corriere. By a tweet of the same day, Pizza Nova stated:

Hi Kyle, the articles to which you refer are not in accordance to our beliefs. Pizza Nova is a very inclusive company and as a result we are pulling our advertising from Corriere Canadese. Please also check your email we have sent you a response. [Emphasis added.]

Di Pasquale’s complaint to the NEPMC

[52] On December 8, 2020, Di Pasquale responded to the Volpe article of that date (discussed at para. 48 above) by writing an email to the head of the National Ethnic Press and Media Council (NEPMC) to express his concerns. Corriere is a member of the NEPMC.

[53] Later that day, Volpe sent a response to Di Pasquale stating that (i) Di Pasquale engaged in “thuggery”, through “cowardly” conduct and “drive-by smears” demonstrating his “hypocritical concern for the ‘most vulnerable citizens’”. He described Di Pasquale as a “tin pot anti-democrat” who used “gangster tactics”. Volpe warned Di Pasquale to “[t]hink before you soil your pants in front of experienced people”.

The YouthLine Article

[54] On January 8, 2021, Volpe wrote an article published in Corriere entitled “TCDSB website hosts Pornographic site defended by trustees” (previously defined as the YouthLine Article).

[55] Volpe acknowledged in cross-examination that there are many positive aspects of the LGBT YouthLine website, including its peer support services, links to third-party resources addressing health and mental health, homelessness, bullying, abuse, violence, and coming out to help LGBTQ2S+ youth struggling with those issues.

[56] Nevertheless, Volpe stated in his article:

Briefly, [YouthLine] is a smut site which, under cover of defending “diversity and human rights”, as demanded by the Human Rights Commission, promotes the purchase and sale of porno paraphernalia for sexual activities typically reserved for “red light districts” under the cover of darkness.

[YouthLine] is a recruitment site operated by a self-professed LGBTQ+ umbrella organization to attract children that operates province wide.

Anyone “trolling” that website should be considered a pedophile. [Emphasis added.]

[57] Volpe implied that the content on the YouthLine website was so inappropriate that “[e]ven the organizers of the site must agree [because] they placed a HIDE button at the top right of the page so that any child can quickly go to a pre-programmed Wikipedia page when an adult comes into the room”.[^4]

The TCDSB’s removal of the LGBT Youth Line link from the TCDSB’s website

[58] On the same day the YouthLine Article was published, the TCDSB removed the link to the LGBT YouthLine website from its own website.

The January 11 Wong-Tam Tweets

[59] Wong-Tam became aware of the YouthLine Article. On January 11, 2021, in response to the YouthLine Article and the TCDSB decision to remove the LGBT YouthLine link, Wong-Tam published the following tweets:

(i) “Volpe’s recent article labels the @LGBTYouthLine a ‘pornographic’ ‘smut site.’ He goes after progressive TCDSB trustees brave enough to stand up to his homophobic and transphobic ramblings”;

(ii) “@LGBTYouthLine is a youth-led organization, whose mandate is to provide peer support to queer youth, including Catholic ones. They provide life-affirming support and help #LGBTQ2S+ kids feel safe in homes, communities and schools. Volpe strives to do the exact opposite”; and

(iii) “The @cityoftoronto should not be spending any public dollars advertising in any media that promotes homophobia, transphobia or any other form of discrimination and hate. Same goes for government grants. Time to cut them off”. [Emphasis added.]

The response of LGBT YouthLine to the removal of the link

[60] On January 11, 2021, LGBT YouthLine published a statement with respect to the TCDSB’s removal of its link from the TCDSB’s website (the LGBT YouthLine Press Release). LGBT YouthLine stated that the YouthLine Article was “homophobic, transphobic, and racist”, and criticized the removal of the link as “a validation of homophobia and transphobia by the TCDSB”. LGBT YouthLine stated, inter alia:

LGBT YouthLine is a 2SLGBTQ+ youth-led organization that has been providing peer support and leadership opportunities to youth across Ontario for over twenty-five years. Our HelpLine is one of the only supports available to most youth (29 & under) across Ontario – especially during this pandemic […].

There is a long history accusing 2SLGBTQ+ people of pedophilia and of “corrupting” children and youth and the article explicitly uses these arguments against us. This rhetoric is harmful, unacceptable, and is overt homophobia and transphobia. Volpe wrote this article to clearly de-legitimize YouthLine’s work, including attacking the ways that we support Indigenous and Black youth.

As a 2SLGBTQ+ youth organization, homophobic, transphobic, and racist attacks on our work are sadly not new. What’s extremely concerning is that the TCDSB felt it appropriate to remove our much-needed service from their resources based on an article that is homophobic, transphobic, and racist. The article was posted on Friday and our website was removed from the TCDSB resources page within hours. The removal of our website is a validation of homophobia and transphobia by the TCDSB and has blocked access to our critical service to 2SLGBTQ+ youth attending their schools. [Emphasis added.]

The Yahoo Article

[61] The Yahoo Article reported on the TCDSB’s decision to remove the LGBT YouthLine link from its website, with reference to the LGBT YouthLine Press Release and comments in social media critical of the TCDSB decision. There is no reference in the Yahoo Article to the January 11 Tweets.

[62] Prior to writing the Yahoo Article – and given LGBT YouthLine’s assertion that the TCDSB referenced the YouthLine Article when providing notice of its decision – Di Filippo reviewed the YouthLine Article, a selection of other articles Volpe had published in Corriere about the TCDSB and LGBTQ2S+ issues, and publicly available articles relating to Volpe’s position on LGBTQ2S+ issues during his time in Parliament.

[63] The Yahoo Article:

(i) describes, quotes from, and provides links to the YouthLine Article, as well as blog posts written by a retired educator Volpe cited favourably in the YouthLine Article, in order to set out Volpe’s criticism of the TCDSB’s inclusion of LGBT YouthLine on its resources webpage,

(ii) describes, quotes from, and provides links to the LGBT YouthLine Press Release,

(iii) describes, quotes from, and provides links to a selection of comments posted on social media by members of the public who were critical of the TCDSB’s decision to remove LGBT YouthLine from its resources webpage. and

(iv) quotes a TCDSB statement relating to its decision and the public debate that followed.

[64] The quote in the Yahoo Article headline (“Put it back and apologize”) was a verbatim comment of a tweet in response to the removal of the link. The article also quoted the comments of:

(i) a family doctor who stated that “As a physician who works with 2SLGBTQ+ youth, LGBT YouthLine is one of the first resources that I refer people to when needed, particularly during the pandemic when other resources (groups, in-person visits) are very limited” and that “TCDSB should add this listing back immediately”, and

(ii) comments by others on social media who “echoed Youthline’s statement by calling TCDSB’s actions [in removing the link] an example of ‘institutional homophobia’, as well as ‘disgusting’ and ‘shameful’”.

[65] In the Yahoo Article, the only words complained of are “Joe Volpe… [has] well documented anti-LGBTQ+ views”, which appear in the following sentence:

The article, written by Joe Volpe, a former MP for Eglinton-Lawrence with well documented anti-LGBTQ+ views, referred to YouthLine’s website as a “recruitment site” for children and a “smut site” that “promotes the purchase and sale of porno paraphernalia for sexual activities.” [Emphasis added.]

TCDSB reinstates the link to the LGBT YouthLine website

[66] On January 13, 2021, the day after the Yahoo Article was published and two days after the LGBT YouthLine Press Release, the TCDSB reinstated the LGBT YouthLine link to its website. LGBT YouthLine did not alter or remove any content or external links on its website.

[67] TCDSB Director of Education Brendan Browne made a public statement the next day in which he recognized and acknowledged the “impact that [the removal of the link] may have had on the [TCDSB’s] 2SLGBTQ youth and community”, commenting that “we are in education and this is a profound teachable moment”.[^5]

The January 14 Wong-Tam Tweet

[68] On January 14, 2021, Wong-Tam responded to a tweet authored by de Domenico and tweeted:

The vitriolic attacks from Joe Volpe and Corriere Canadese on TCDSB trustees supporting human rights must be called out. Governments should not be advertising or providing grants to media such as @CCanadese who is actively promoting hate against #LGBTQ2S+ students & families. [Emphasis added.]

The first Slansky letter

[69] Counsel for the plaintiffs, Paul Slansky (Slansky), sent a letter to Wong-Tam dated January 15, 2019 [sic - presumably intended to be dated January 2021] identifying himself as counsel for Volpe and demanding a retraction and apology by end of business day on January 19, 2021, failing which Volpe would initiate legal action. This letter did not come to Wong-Tam’s attention until she received a second letter from Slansky on January 29, 2021.

The Motion

[70] In her capacity as a City councillor, Wong-Tam proposed a notice of motion before City Council on January 28, 2021 (previously defined as the Motion), returnable before City Council on February 2, 2021.

[71] At the outset, the Motion specifically indicated: “The City of Toronto’s [HRAP] states that we ‘will not tolerate, ignore, or condone discrimination or harassment and is committed to promoting respectful conduct, tolerance and inclusion’”.

[72] The Motion sought relief, including that:

(i) the City cease all paid advertisements in Corriere, “following the reports of the printing and distribution of homophobic and transphobic articles about the Toronto Catholic District School Board, its Trustees and its LGBTQ2S+ students”; and

(ii) the City Manager be directed “to inform the Corriere Canadese that they must sign and comply with the City of Toronto’s Human Rights and Anti-Harassment/Discrimination Policies if they are to become a vendor again in the future”. [Emphasis added.]

[73] In the Motion, Wong-Tam made the following comments, with footnote links to the impugned Volpe articles:

(i) “The publisher of Corriere Canadese has been publishing articles targeting the Toronto District Catholic School Board (TCDSB), its Trustees for their support of LGBTQ2S+ students and families. The articles are portrayed as factual news when they are opinion pieces that are discriminatory towards a charter protected minority group”;

(ii) “The City’s advertising dollars should not be invested in a community newspaper that espouses discrimination and harassment against” (a) “the LGBTQ2S+ community or any other charter protected minority group”, (b) “elected officials”, and (c) “a public school board”;

(iii) “It is our opinion that Corriere Canadese” has (a) “attacked TCDSB Trustees De Domenico, Di Pasquale, Li Preti, and Rizzo on numerous occasions, calling them ‘thugs’, a ‘rat pack’, and ‘gangsters’”, (b) “defamed YouthLine, a youth-led charity that affirms and supports LGBTQ2S+ youth that provides life-saving peer support and educational resources”, and (c) “dismissed our Human Rights Code”. [Emphasis added.]

[74] In the Motion, Wong-Tam asked “that the City of Toronto advertise broadly in different Italian language media outlets that have signed and actively honour our Declaration of Compliance with Anti-Harassment/Discrimination Legislation & all other related City policies”.

[75] The Motion also referred to Pizza Nova’s statement on November 17, 2020 that it was cancelling its advertisements with Corriere.

[76] Ainslie seconded the Motion.

The second Slansky letter

[77] On January 29, 2021, Wong-Tam received Slansky’s second letter providing her with notice under s. 5 of the Libel and Slander Act, R.S.O. 1990, c. L.12, and setting out Volpe’s position regarding the alleged defamatory nature of both the Motion and the Tweets. The plaintiffs again threatened legal action should Wong-Tam fail to publish a retraction and apology.

The Joint Letter

[78] On or about February 1, 2021, the defendant trustees Rizzo, Di Pasquale, de Domenico, and Li Preti sent the Joint Letter, addressed to Mayor Tory and City Council in support of the Motion. The trustees stated:

(i) “After much misinformation in the Corriere Canadese we call on the representatives of the City of Toronto to take a stand against homophobia and transphobia. This abhorrent discourse should never be normalized or sanctioned by our city”;

(ii) “The key reason why we support and encourage [the Motion] is the focus over the past year the Corriere Canadese has had of writing homophobic and transphobic articles that attack our students, staff and trustees. These articles are well documented in a recent PressProgress article …, as well as demeaning a local LGBTQ peer counselling service”;

(iii) “These articles spread homophobia & transphobia and … they have the effect of intimidating and further marginalizing our LGBTQ students, as well as intimidating our staff who do not want to be the focus of a homophobic article. Our staff have received threats as a direct result of Joe Volpe’s homophobic reporting”; and

(iv) “We urge you to take a stand against the outdated arguments and vile homophobia and transphobia expressed in the Corriere Canadese, pull their ads and support LGBTQ+ students and families in our city”. [Emphasis added.]

[79] The City of Toronto made the Joint Letter available on its website at some point after it was submitted.

The Press Conference

[80] On March 9, 2021, Wong-Tam led a virtual YouTube press conference (the Press Conference) in support of the pending Motion on March 10, 2021 before City Council.[^6] A number of community advocates, as well as Ainslie, Rizzo, Di Pasquale, and de Domenico were present.

[81] The impugned statements of Wong-Tam at the Press Conference are:

(i) Wong-Tam stated that “There is a path to reconciliation. There is a path forward. And that path is fairly simple: To cease the attacks, to cease the bullying, to cease the harassment and to uphold equity and human rights”; and

(ii) In response to a question about free speech, Councillor Wong-Tam stated “But what you’re seeing here in the Corriere Canadese is not necessarily the limiting of free speech. What I think has happened is that they are limiting the free speech of those within the Catholic School Board. The constant bullying and the attacks, the personal vitriol that I have seen and read in the newspaper is very damaging. And the truth of the matter is that it’s damaging to people who are doing good work”. [Emphasis added.]

[82] The impugned statements of Ainslie at the Press Conference are:

(i) “[W]e have a policy that safeguards everyone regardless of their background, against discrimination and harassment. Public resources are scarce. We do everything that we can as a City Council to ensure that those policies are followed and when we’re investing and [sic] money into publications that are distributing news and information, we expect those publications to follow that policy”; and

(ii) “And you know, statistically, if in any school whether it’s grade school, high school, it’s statistically proven that 10% of any given student population identifies as LGBTQS+ and they have every right to have access to washrooms, to enter the school, to receive the same education as everyone else unhindered and unfettered and not to feel threatened. And you know, we need to do whatever we can to promote that. And having a newspaper that’s beliefs are contrary to that, or writings that are contrary to that, and being funded by the City of Toronto, and this isn’t just about the Corriere Canadese, it’s about every newspaper or publication, you know… City finances are scarce and we need to be spending them properly to support equality and equity right across the City”. [Emphasis added.]

[83] The impugned statements of Rizzo at the Press Conference are:

(i) “As a Catholic, and as an Italian Canadian woman, I am sickened by the hypocrisy of homophobia, transphobia and fearmongering emanating from so-called Italian Canadians who think they are holier than the Pope”;

(ii) “I cannot stand back and witness homophobic and transphobic hatred to our LGBTQ2S+ staff, students and families. I cannot in good conscience turn the other cheek from the evidence of evil that is so clear and compelling. When you see something that is not right, not just, not fair, you have a moral obligation to do something”;

(iii) “I can no longer bear to let fear, ignorance, bigotry and adult amnesia to manipulate my proud Italian community of which I am so proud. I ask Council to promote the values of tolerance and respect for diversity in the city and to support Councillor Wong-Tam’s and Ainslie’s motion to Council tomorrow. Because no one should be afraid of their sexual orientation and gender. Schools need to be safe spaces for students”; and

(iv) “I firmly reject the claims that religious beliefs and denominational rights can be invoked as a legitimate justification for hatred and discrimination. You cannot use scripture and denominational rights to spew bigotry, contempt and malice”. [Emphasis added.]

[84] The plaintiffs also impugn the following comments by Di Pasquale at the Press Conference:

(i) “When those newspapers start printing articles that discriminate and attack our most marginalized students, it has a direct impact on our most marginalized students’ mental health and well-being. These articles have the effect of intimidating LGBTQ2S students and the staff who support them, while enforcing a discriminatory message that doesn’t align with the views of our Italian communities in Toronto”;

(ii) The articles “foster discrimination and intolerance” and “make our LGBTQ2S students feel less safe”; and

(iii) “[I]t feels like a gut punch to see advertisements from the City … sometimes besides articles that make LGBTQ students feel unsafe”.

The City Council passes an amended version of the Motion

[85] On March 10, 2021, City Council unanimously passed an amended version of the Motion (the City Council Decision). The City Council Decision states as follows:

1. City Council reaffirm its policies against hateful speech and its support for the City of Toronto's Lesbian, Gay, Bisexual, Transgender, Queer and Two-Spirit+ communities against discrimination and harassment.

2. City Council express its displeasure to the Corriere Canadese following reports of the printing and distribution of homophobic and transphobic articles about the Toronto Catholic District School Board, its Trustees and Lesbian, Gay, Bisexual, Transgender, Queer and Two-Spirit+ families.

3. City Council direct the City Manager to inform all media vendors, including the Corriere Canadese, that they must sign and comply with the City of Toronto's Human Rights and Anti-Harassment/Discrimination Policies if the City is to purchase advertising space in the future, as outlined in the supplementary report (March 5, 2021) from the Chief Communications Officer.

[86] The City Council Decision did not require the City to cease its advertising in Corriere.

The plaintiffs issue the statement of claim

[87] The plaintiffs issued a statement of claim on March 8, 2021, and issued a “Superseding Statement of Claim” on or about April 12, 2021.

Evidence as to the defendants’ intent in making the Impugned Statements

[88] All of the defendants led evidence as to their good faith in making the Impugned Statements.

[89] The evidence of the councillor defendants is that they made their comments in good faith and did not intend to injure the plaintiffs. Rather, they brought attention to the LGBT YouthLine incident and the plaintiffs’ publications because they believed it was incumbent on them as City councillors to bring awareness to what they viewed as discrimination and harassment.

[90] Rizzo’s evidence is that when writing the Joint Letter and making her Press Conference Statements, she believed that she acted pursuant to her statutory duty to promote a positive environment at the TCDSB, and to ensure students who identify as LGBTQ2S+ felt included and accepted within the Catholic school system. Rizzo’s evidence is that she has a sincere belief in her moral duty to ensure that students of the TCDSB feel welcomed and safe in their school environment. She stated on cross-examination:

I am telling you that as a school trustee, I have a responsibility and a duty...and a duty to comply with our laws of our land, to make sure that we do what the Ministry of Education suggests we have to do, what Ontario Human Rights says, what the Catholic Church says. And you have to put them all together. It is, like, not a melting pot, not one over the other. It is, like, what is best for kids in this circumstance? And making sure that our kids can walk through our school doors and feel safe without fear, without being bullied, and being included and being welcomed is what my job is, and that is what I do. And Mr. Volpe, you know what? He can write what he wants, but not when it comes to hurting that community, that is the most marginalized in our society. That is just not Catholic, it is not Christian, period.

[91] Rizzo’s evidence is that “it was, and continues to be, [her] sincerely held belief, based on the articles written by Mr. Volpe and published by the Corriere that criticize advancing issues of LGBTQ2S+ inclusion and support at the TCDSB, that the plaintiffs are discriminatory, homophobic and transphobic” and that those articles “further marginalize LGBTQ2S+ students, staff and families of the TCDSB”.

[92] The evidence of Di Pasquale and de Domenico[^7] was that their conduct was motivated by their understanding of a trustee’s role. They believe that trustees act as education advocates who work on behalf of the community and consider the unique needs of their communities when deciding what position to take on any issue.

[93] The evidence of Di Pasquale and de Domenico is that a trustee’s role as an education advocate often extends beyond the boundaries of the district school board and that a trustee often liaises with members of government, the school system, and with local organizations or individuals in the community. An important role as a trustee is to focus on students’ well-being and equity, and to participate in making decisions that benefit the board's entire jurisdiction while representing the interests of their constituents.

[94] Both Di Pasquale and de Domenico held the good faith opinion that the articles by Volpe and published by Corriere were homophobic and transphobic and harmed LGBTQ2S+ students and staff within the TCDSB. They believed the articles fostered discrimination and intolerance and caused LGBTQ2S+ students and staff to feel unsafe.

[95] Li Preti felt and continues to feel strongly that the plaintiffs’ publications cause harm to LGBTQ2S+ students and staff of the TCDSB and that, in promoting or excusing discrimination, they expose these students to bullying, humiliation and exclusion. Her understanding is based on her engagement with students, staff and other stakeholders of the TCDSB as well as her review of reports and research with respect to this issue.

[96] Di Filippo’s evidence was that she “wrote the Yahoo Article in good faith to inform readers about an issue of public interest and importance, and without malicious intent. I did not intend to interfere with the contractual obligations or economic interests of the Plaintiffs”.

Evidence of the plaintiffs’ alleged monetary damages from the Impugned Statements

[97] The evidence as to any monetary damages arising from the Impugned Statements is contained in the following assertions in the Volpe affidavit:

(i) “[Corriere] lost advertising as a result of the bringing of the motion through temporary suspension of advertising pending the motion and cancellation of other advertising”;

(ii) “Advertising contracts have been cancelled”;

(iii) “Advertising contracts were cancelled as a result [of the Motion]”; and

(iv) “[Corriere] agreed to these terms [in the Motion, i.e., that it “sign on to a code of conduct precluding discrimination”], but advertising has still not been re-instituted”.

[98] The plaintiffs produced no documentary evidence of any contract it had which was allegedly cancelled. The plaintiffs produced no evidence as to its advertising revenue from the City, or general advertising revenue, either before or after the Motion. While calculations of financial losses totalling $11.8 million are alleged at paras. 145-49 of the Superseding Statement of Claim, there is no such evidence before the court on the motion.

Analysis

[99] The leading decision on the applicable law for anti-SLAPP motions is 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22. Both parties rely on the principles in that decision and I refer to them often in these reasons.

The purposes of s. 137.1

[100] The purposes of ss. 137.1 through 137.5 are set out in s. 137.1(1) which provides that:

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.

[101] The court in Pointes reviewed the history of s. 137.1, noting that an Anti-SLAPP Advisory Panel (the Panel) had been created to advise the government on “how to respond to the proliferation of SLAPPs”, which “culminated in the Anti-Slapp Advisory Panel: Report to the Attorney General (‘APR’), which was published in October 2010”: at para. 7.

[102] In Pointes, the court noted the particular importance of the purposes of anti-SLAPP motions given the express statement of such principles under s. 137.1(1). Côté J. held, at para. 11:

While legislative purpose bears on the exercise of statutory interpretation regardless of whether a purpose clause exists, the fact that the APR explicitly urged legislators to include such a clause for the benefit of judicial interpretation, and that legislators consciously obliged, demonstrates that the purpose clause in s. 137.1(1) commands considerable interpretative authority. [Italics in original; emphasis added.]

[103] The court in Pointes held that “the Panel and its APR are persuasive authority for the purposes of statutory interpretation”: at para. 14. Côté J. relied on the following excerpts from the APR (quoted verbatim from Pointes):

(i) The APR “concluded that it is desirable for Ontario to enact legislation against the use of legal processes that affect people's ability or willingness to express views or take action on matters of public interest” (para. 10): at para. 8;

(ii) The APR advocated a "broad scope of protection" (para. 29) that would "ensure that the full scope of legitimate participation in public matters is made subject to the special procedure" (para. 31): at para. 9; and

(iii) [T]he APR … stated that the "legislation should include a purpose clause for the benefit of judicial interpretation" (Summary of Recommendations, para. 2): at para. 11. [Emphasis added.]

[104] Côté J. concluded, at para. 14:

[T]he APR was the clear impetus for the legislation, and was relied upon heavily by the legislature in drafting s. 137.1 of the CJA. Accordingly, it is a persuasive source that "provide[s] helpful information about the background and purpose of the legislation" (CHRC, at para. 44). [Emphasis added.]

[105] Consequently, when interpreting s. 137.1, the court must take into account its legislative purposes as set out in s. 137.1(1), including the background comments of the Panel in the APR.

The process to be applied under s. 137.1

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

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

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

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

b. The harm likely to be or have been suffered by the plaintiff, as a result of the defendant’s expression, is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression (under s. 137.1(4)(b)).

[107] I now address the relevant case law and evidence for each of the above steps in the process.

Step 1: Does the Action arise from expressions made by the defendants that relate to a matter of public interest (s. 137.1(3))?

[108] The law is settled that under s. 137.1(3), the onus is on the moving party to establish on a balance of probabilities, that “the proceeding arises from an expression made by the person that relates to a matter of public interest”. The court held in Pointes, at para. 23:

First, what does "satisfies" require? I am in agreement with Doherty J.A. of the Court of Appeal for Ontario that "satisfies" requires the moving party to meet its burden on a balance of probabilities (C.A. reasons, at para. 51). This is in accordance with the jurisprudence interpreting the word "satisfied" … Accordingly, the moving party must be able to demonstrate on a balance of probabilities that (i) the proceeding arises from an expression made by the moving party and that (ii) the expression relates to a matter of public interest. [Emphasis added.]

[109] Consequently, the moving party must establish on a balance of probabilities that (i) the moving party made an “expression”; (ii) the proceeding “arises from” that expression; and (iii) the expression relates to a matter of “public interest”.

[110] I address each of these requirements below, addressing both the relevant law and the application of the law to the facts of the present case.

(i) Was there an expression made by the defendants?

(1) The applicable law

[111] “Expression” is defined in s. 137.1(2) as “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”.

[112] The court in Pointes held that: “[W]hat does ‘expression’ mean … is not in need of further clarification, as the text makes it abundantly clear that ‘expression’ is defined expansively”: at para. 25.

(2) Application of the law to the present case

[113] There is no dispute in the present case that all of the Impugned Statements arose out of expressions made by the defendants.

[114] The January 11 and 14 Tweets, the Motion, the Joint Letter, the Press Conference Statements, and the Yahoo Article were all communications, and, as such, constitute “expressions” under s. 137.1(3).

(ii) Does the proceeding arise from the Impugned Statements?

(1) The applicable law

[115] The requirement that the proceeding “arises from” an expression provides an expansive view of any litigation in which its genesis is a matter of expression, regardless of how the claim is framed. The court held in Pointes, at para. 24:

[W]hat does "arises from" require? By definition, "arises from" implies an element of causality. In other words, if a proceeding "arises from" an expression, this must mean that the expression is somehow causally related to the proceeding. What is crucial is that many different types of proceedings can arise from an expression, and the legislative background of s. 137.1 indicates that a broad and liberal interpretation is warranted at the s. 137.1(3) stage of the framework. This means that proceedings arising from an expression are not limited to those directly concerned with expression, such as defamation suits. A good example of a type of proceeding that is not a defamation suit, but that nonetheless arises from an expression and falls within the ambit of s. 137.1(3), is the underlying proceeding here, which is a breach of contract claim premised on an expression made by the defendant (this is explored in further detail in Part IV of these reasons). Indeed, the APR explicitly discouraged the use of the term "SLAPP" in the final legislation in order to avoid narrowly confining the s. 137.1 procedure (para. 22), and the legislature obliged. [Emphasis added.]

(2) Application of the law to the facts of the present case

[116] There is no dispute in the present case that the Action arises out of the expressions in the Impugned Statements.

[117] The defamation claim, by definition, arises from the Impugned Statements.

[118] The impugned statements in the Tweets, Motion, and Press Conference are all “causally related to the other claims” (misfeasance in a public office, inducing breach of contract, and wrongful interference with economic relations). The expression of the defendants’ views through the various forms is the basis for all of the claims advanced by the plaintiffs.

(iii) Do the Impugned Statements relate to a matter of public interest?

(1) The positions of the parties

[119] The plaintiffs acknowledge that the January 11 Tweets and the Yahoo Article, which addressed the issue of the removal and reinstatement of the LGBT YouthLine link, were expressions that relate to a matter of public interest.

[120] However, the plaintiffs submit that the proceedings relating to the January 14 Tweets, the Motion, the Joint Letter, and the Press Conference Statements do not arise from expressions of public interest. The plaintiffs submit that:

(i) because the subject matter of those expressions related to efforts by the defendant councillors and trustees to have the City cease advertising in Corriere until it signed and complied with the HRAP and Declaration, the purpose of such communication was an “unlawful” attempt to “censor” the media and restrict the plaintiffs’ rights under s. 2(b) of the Canadian Charter of Rights and Freedoms and, as such, could not be in the public interest; and

(ii) because the subject matter of those expressions addressed whether the plaintiffs were homophobic, transphobic, or anti-LGBTQ2S+, it was not a matter of “public” interest.

[121] I do not agree. For the reasons I discuss below, I find that the impugned expressions from the January 14 Tweet, the Motion, the Joint Letter, and the Press Conference Statements were all matters of public interest, since they related to (i) the use of public funds for City advertising, and (ii) protection of the interests of constituents (including LGBTQ2S+ students, parents, and teachers) pursuant to the statutory and other duties of the councillors and trustees.

[122] I first review the applicable law and then apply the law to the facts of the present case.

(2) The applicable law

[123] The burden to establish that the expression arises out of a matter of public interest “is purposefully not an onerous one”: Pointes, at para. 28. Côté J. stated at paras. 30-31:

Ultimately, the inquiry is a contextual one that is fundamentally asking what the expression is really about. The animating purpose of s. 137.1 should not be forgotten: s. 137.1 was enacted to circumscribe proceedings that adversely affect expression made in relation to matters of public interest, in order to protect that expression and safeguard the fundamental value that is public participation in democracy. If the bar is set too high at s. 137.1(3), the motion judge will never reach the crux of the inquiry that lies in the weighing exercise at s. 137.1(4)(b). Thus, in light of the legislative purpose and background of s. 137.1, it is important to interpret an "expression" that "relates to a matter of public interest" in a generous and expansive fashion.

In conclusion, s. 137.1(3) places a threshold burden on the moving party to show on a balance of probabilities (i) that the underlying proceeding does, in fact, arise from its expression, regardless of the nature of the proceeding, and (ii) that such expression relates to a matter of public interest, defined broadly. To the extent that this burden is met by the moving party, then s. 137.1(4) will be triggered and the burden will shift to the responding party to show that its underlying proceeding should not be dismissed. [Emphasis added.]

[124] I summarize the relevant principles concerning the “public interest” requirement as follows:

(i) “Public interest” under s. 137.1(3) is to be given a “broad and liberal interpretation”, to “ensure that the full scope of legitimate participation in public matters is made subject to the special procedure”: Pointes, at para. 26, citing to the APR at para. 31;

(ii) “The expression should be assessed ‘as a whole’”: Pointes, at para. 27, citing Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 101;

(iii) A court must not parse out and scrutinize only the impugned remark. Rather, the question is what the expression is about, when considered in the context in which it was made: Schwartz v. Collette, 2020 ONSC 6580, at para. 77;

(iv) Because the expression must only arise out of “a matter” of “public interest”, “it is not legally relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest — there is no qualitative assessment of the expression at this stage. The question is only whether the expression pertains to any matter of public interest, defined broadly”: Pointes, at para. 28;

(v) A matter is of public interest if “some segment of the community would have a genuine interest in receiving information on the subject”: Pointes, at para. 27, citing Grant, at para. 102;

(vi) “The public interest includes such matters as the establishment, use, allocation and maintenance of shared public goods, and therefore protects discussion and advocacy about the distribution of benefits and burdens of social life”: Grist v. TrueGrp Inc., 2021 ONCA 309, 156 O.R. (3d) 171, at para. 19; and

(vii) “[T]he resolution of purely private disputes between more or less equals — disputes that have no immediate bearing on the rights or obligations of others — can seldom be a matter of public interest”: Grist, at para. 19.

(3) Application of the law to the facts of the present case

(a) The councillors’ statements

[125] The councillors’ expressions arising in the Tweets, the Motion, and the Press Conference Statements were made in such role as advocates for the interests of their constituents, as set out in:

(i) the councillors’ obligation under s. 131(1)(a) of the CTA “to represent the public and to consider the well-being and interests of the City”; and

(ii) the HRAP which applies to all of the City’s elected officials and (a) states that “[t]he City of Toronto will not tolerate, ignore, or condone discrimination or harassment and is committed to promoting respectful conduct, tolerance and inclusion”, and (b) mandates that all contracts with third party individuals and organizations delivering services to the City must include a signed copy of the Declaration and are subject to contract provisions regarding consequences for non-compliance.

[126] The councillors’ expressions related to both their own and the City’s commitment to preventing and addressing harassment and discrimination, as well as respecting the dignity and rights of the LGBTQ2S+ public they serve. There is a public interest in supporting groups who face discrimination and harassment. Consequently, “the expression pertains to any matter of public interest, defined broadly”: Pointes, at para. 28.

[127] The councillors’ expressions also related to the City’s use of taxpayers’ money. The City’s advertisements in Corriere are publicly-funded. The public has an interest in how the City uses its tax revenue. Consequently, the expressions relate to the “establishment, use, allocation and maintenance of shared public goods, and [are] therefore protect[ed] discussion and advocacy about the distribution of benefits and burdens of social life”: Grist, at para. 19.

[128] All City residents have a genuine interest in receiving information on the subject matter. of the expression. Such interest is not limited to the segment of the community that includes members of the LGBTQ2S+ community, even though such a “segmented” interest would be sufficient: Pointes, at para. 27.

[129] Consequently, a broad and liberal interpretation of the councillors’ expression establishes a public interest. It is not a “private” matter of (i) seeking to “censor” a community newspaper, or (ii) asserting homophobic conduct in a private context.

[130] Corriere remains free (and has continued) to publish any statements on the issues it considers appropriate. None of the defendants brought a defamation claim against Corriere. Rather, the issue was the protection of the City’s residents under the policies promoted in the HRAP, and the use of public funds to advertise in a publication which the councillors believed had views which were inconsistent with the HRAP and the best interests of City residents.

[131] For the above reasons, I find that Wong-Tam and Ainslie have met their burden under s. 137.1(3).

(b) The Trustees’ Joint Letter and Press Conference Statements

[132] All of the trustees collectively made the impugned statements in the Joint Letter.

[133] Only Rizzo and Di Pasquale’s statements at the Press Conference are impugned. Li Preti did not attend the Press Conference and de Domenico’s statements at the Press Conference are not impugned.

[134] The statements by the trustees in the Joint Letter and Press Conference were made in support of a public decision to be made by the City as to whether it would continue to spend taxpayer dollars to advertise in a publication with articles written by Volpe that the trustees believed were homophobic, transphobic, and anti-LGBTQ2S+.

[135] Consequently, as with the councillors, the Joint Letter and Press Conference Statements related to the decision by the City in respect of its use of funds and its association with an allegedly homophobic publication. Such expressions relate to the “establishment, use, allocation and maintenance of shared public goods,” and are therefore protected as “discussion and advocacy about the distribution of benefits and burdens of social life”: Grist, at para. 19.

[136] The treatment of LGBTQ2S+ students in the TCSDB is a matter of public interest. The trustees believed that Volpe and Corriere were writing homophobic, transphobic, and anti-LGBTQ2S+ articles which affected their constituents. The trustees’ expression raised those public concerns, consistent with their role as elected officials (like the councillors) to protect the interests of their constituents. Such conduct affects the safety and well-being of TCDSB students, and as such, it is in the public interest that the trustees can raise such concerns.

[137] The trustees’ role under the Education Act, TCDSB Code of Conduct, Pastoral Guidelines, and inclusion policies, as set out at paras. 33-37 above, also are a basis of a trustee’s role to raise issues of concern that they believe affect the safety and well-being of any TCDSB student, and in the present case, the LGBTQ2S+ community at TCDSB schools.

[138] The trustees never attempted to censor Corriere, despite the often intemperate language used by Volpe to describe the trustees and their conduct. The trustees raised concerns in relation only to the issue before the City on the Motion, which was a matter of public interest.

[139] For the above reasons, I find that the trustee defendants satisfied the requirement under s. 137.1(3) that the proceeding against them arises from an expression that relates to a matter of public interest.

Step 2: Have the plaintiffs established that there are grounds to believe that the proceeding has substantial merit and that there are no valid defences? (s. 137.1(4)(a))

(i) The burden of proof required under s. 137.1(4)(a)

[140] Before considering the specific issues of the merits of the causes of action pleaded and the applicable defences before the court, I make the following general comments on the burden of proof under s. 137.1(4) for the plaintiff to establish both that (i) “the proceeding has substantial merit” (s. 137.1(4)(a)(i)), and (ii) “the moving party has no valid defence in the proceeding” (s. 137.1(4)(a)(ii)).

[141] The legal principles governing the burden of proof under s. 137.1(4)(a) are set out in Pointes and are not contested by the parties. I summarize the applicable principles as follows:

(i) “To the extent that [the s. 137.1(3)] burden is met by the moving party, then s. 137.1(4) will be triggered and the burden will shift to the responding party to show that its underlying proceeding should not be dismissed”: Pointes, at para. 31;

(ii) The plaintiff must satisfy the court that there are “grounds to believe” that the proceeding has “substantial merit”: s. 137.1(4)(a)(i) and that the “moving party has no valid defence in the proceeding”: s. 137.1(4)(a)(ii);

(iii) The plaintiff must establish a “real prospect of success” to meet both the “substantial merit” and “no valid defence” requirements under s. 137.1(4)(a): Pointes, at paras. 49 and 59;

(iv) “[A] claim with merely some chance of success will not be sufficient to prevail. Nor will a claim that has been merely nudged over the line of having some chance of success. A real prospect of success means that the plaintiff's success is more than a possibility; it requires more than an arguable case. As I said in the preceding paragraph, a real prospect of success requires that the claim have a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff”: Pointes, at para. 50.

(v) “In other words, ‘substantial merit’ and ‘no valid defence’ should be seen as constituent parts of an overall assessment of the prospect of success of the underlying claim”: Pointes, at para. 59;

(vi) The claim “must be legally tenable and supported by evidence that is reasonably capable of belief”: Pointes, at para. 49;

(vii) It is not sufficient to show that it is “possible” that a defence would not succeed: 2504027 Ontario Inc. o/a S-Trip! v. Canadian Broadcasting Corporation (CBC) et al., 2021 ONSC 3471, at para. 35; and

(vii) Under s. 137.1(4)(a), the plaintiff must show that none of the defences have a real prospect of success. The plaintiff must show that based on the applicable law and evidence before the court, such a finding weighs more in favour of the plaintiff: Pointes, at para. 60. [Emphasis added.]

[142] Summarizing the above principles, a plaintiff can only meet the burden under s. 137.1(4)(a) if the plaintiff can establish that, based on the applicable law and evidence before the court, it weighs more in favour of the plaintiff that (i) the proceeding has substantial merit and (ii) the moving party has no valid defence in the proceeding. If the plaintiff fails either of those evidentiary burdens, the action shall be dismissed under s. 137.1(3) (if the defendant establishes that the proceeding arises from an expression made by the defendant that relates to a matter of public interest).

(ii) Have the plaintiffs established that there are grounds to believe that the proceeding has substantial merit? (s. 137.1(4)(a)(i))

[143] The plaintiffs rely upon four principal causes of action to support their claim: (i) defamation, (ii) misfeasance in public office, (iii) inducing breach of contract, and (iv) wrongful interference with economic relations. For the reasons that follow, I find that only the defamation claim has substantial merit under the Pointes test.

[144] The plaintiffs also rely on an “abuse of authority” claim based on the decision in Roncarelli v. Duplessis, [1959] S.C.R. 121, although the plaintiffs acknowledge in their factum that “[i]t is unclear whether abuse of authority remains as an independent tort or whether it is subsumed by Misfeasance of Public Office”. While I find that the abuse of authority doctrine set out in Roncarelli has been subsumed in the tort of misfeasance in public office, I find that in any event, the plaintiffs have not established a real prospect of success even if such a separate claim could be made.

[145] I address each of the causes of action below.

(1) Defamation

(a) The applicable law to establish a claim for defamation

[146] To succeed on a claim for defamation, the plaintiff must prove that:

(i) The words complained of were published, meaning that they were communicated to at least one person other than the plaintiff;

(ii) The words complained of referred to the plaintiff; and

(iii) The impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person: Bent v. Platnick, 2020 SCC 23, at para. 92 (citing Grant, at para. 28 and P.A. Downard, The Law of Libel in Canada (4th ed. 2018), at paras. 1.2 to 1.14).

[147] A defamatory statement is one that causes the plaintiff “to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem”: Vander Zalm v. Times Publishers, 1980 BCCA 389, at para. 4.

(b) The review of defences and existing reputation on the s. 137.1(4)(a)(i) test for a defamation claim

[148] The plaintiffs submit that the determination under s. 137.1(4)(a)(i) of whether a defamation claim has substantial merit requires only a review of the Impugned Statements to determine if a finding of defamation weighs in favour of the plaintiff. Under this approach:

(i) the analysis of the strength of any defences to the defamation claim would occur under the s. 137.4(a)(ii) review; and

(ii) if there is uncertainty on the evidence as to the extent of the plaintiff’s reputation at the date of the impugned statements, that uncertainty should be resolved at trial.

[149] The defendants do not contest that the analysis of the validity of the defences take place under s. 137.1(4)(a)(ii). I agree.

[150] Such an approach is reasonable. Otherwise, the requirements under s. 137.1(4)(a) become conflated, if words which are defamatory would not be found to establish “substantial merit” of the claim if there was a real prospect of success for a “valid defence”. Such an approach defeats the legislative intent of having separate requirements under ss. 137.1(4)(a)(i) and (ii) that the plaintiff satisfy the court that there are grounds to believe both that (i) the claim has substantial merit and (ii) there are no valid defences.

[151] However, the defendants also submit that the court should find that the defamation claim has no substantial merit, based on the defendants’ submission that the plaintiffs would have a low reputation because of the “self-inflicted” reputational damage from Volpe’s statements in the Initial and YouthLine Articles. The defendants submit that “[a]ny negative effect on the plaintiffs’ reputation was of their own doing and as a result of the articles they chose to publish”.

[152] I do not agree that such an approach is appropriate in the present case. Consequently, I do not address whether such a position could be considered if the evidence supported a conclusion that a defendant’s impugned statements could not have lowered the plaintiff’s reputation any further.

[153] In the decision of the Court of Appeal in Pointes, reported at 2018 ONCA 685 and upheld by the Supreme Court, the court cautioned against the motion judge taking a “deep dive” on the merits of the claim and the defences, which is the role of the trial judge. The court held, at para. 78:

[T]he motion judge must avoid taking a “deep dive” into the ultimate merits of the claim under the guise of the much more limited merits analysis required by s. 137.1(4)(a).

[154] Consequently, the courts have not engaged in a “deep dive” into the reputation of the plaintiff outside the scope of the alleged defamation (an assessment that would be required at trial). In Rebel News Network Ltd. v. Al Jazeera Media Network, 2021 ONSC 1035, the motion judge held, at paras. 41-43:

While Al Jazeera argues that cases such as WIC Radio Ltd. v. Simpson 2008 SCC 40 permit the Court to consider "how much is publicly known about the plaintiff" when assessing the defamatory nature of a statement, that analysis is typically carried out when the full merits of the claim are in play, either by way of trial or summary judgment. I agree with Rebel that the Court's job at this early stage of the proceeding is more of a screening function than a full determination of the merits.

In my view, Al Jazeera's argument cannot be accepted at this stage. The issue of Rebel's existing reputation is one that inherently requires the Court to perform the frowned upon "deep dive". Rebel's existing reputation as at the time of publication is an issue better suited for a consideration of Al Jazeera's defence(s) or perhaps Rebel's claimed damages. As the Court must not wade past shallow waters when conducting a section 137.1 analysis, I am not prepared to draw any conclusions with respect to the status of Rebel's reputation as at the date of publication of the article and video.

I find that the three statements are quite capable of being defamatory, and as such there are grounds to believe that Rebel's action has substantial merit.

[155] The Court of Appeal in Levant v. DeMelle, 2022 ONCA 79,[^8] did not interfere with the motion judge’s decision that the plaintiff’s defamation claim had met the substantial merit test under s. 137.1(4)(a)(i), despite the defendants’ reliance on the plaintiff’s allegedly low reputation.

[156] A similar approach has been taken by the courts in other cases where the views of the plaintiffs were well-known, with the courts (i) finding that the test under s. 137.1(4)(a)(i) had been met to establish the substantial merit of the defamation claim, but (ii) granting the anti-SLAPP motion on the basis of the plaintiff failing to (a) establish under s. 137.1(4)(a)(ii) a real prospect of success that there are no valid defences and (b) satisfy the court on the weighing test under s. 137.1(4)(b).

[157] By way of example in the following cases:

(i) In Bernier v. Kinsella, 2021 ONSC 7451, MacLeod R.S.J. held that despite the evidence of the plaintiff’s existing reputation, the defendant’s comments that the plaintiff was a racist, misogynist or anti-Semitic would lower the plaintiff’s reputation and as such met the test under s. 137.1(4)(a)(i): at paras. 46-48. As the court held, at para. 49, “[t]he bar for establishing defamation is reasonably low. The challenge for a plaintiff is to overcome potential defences and in the case of a s. 137.1 motion, to show that there is no reasonable prospect of any of the defences succeeding.”

The court granted the anti-SLAPP motion based on the failure of the plaintiff to (a) establish a real prospect of success that the defences of justification and fair comment were not valid: at paras. 50-67, and (b) satisfy the weighing test on the evidence before the court: at paras. 68-74;

(ii) In Mondal v. Evans-Bitten, 2022 ONSC 809, Morgan J. held that the plaintiff had established that the re-tweeting of his tweets by the defendant met the substantial merit test under s. 137.1(4)(a)(i). He held, at para. 24, that “Although most of the damage is done by Mr. Mondal's own words, re-tweeting and forwarding his rude and pejorative tweets, with an accompanying sentence that draws further attention to their rudeness and distasteful message, cannot help but lower the professional and personal reputation among Mr. Mondal's peers and clientele”.

Morgan J. granted the anti-SLAPP motion based on the failure of the plaintiff to establish a real prospect of success that the defence of fair comment was not valid: at paras. 32-41.

[158] In the present case, I follow the above approach and do not assess the strength of the plaintiffs’ reputation in my analysis under s. 137.1(4)(a)(i).

[159] On the evidence, it is known that some individuals and Pizza Nova had commented on their view as to the homophobic and transphobic nature of the Initial and YouthLine Articles. However, there is insufficient evidence to establish such a low reputation that any alleged defamation could not have lowered the plaintiffs’ reputation.

(c) Application of the law to the facts of the present case

[160] For the reasons I discuss below, I find that on the basis of the applicable law and the evidence, the plaintiffs’ defamation claim has substantial merit.

[161] There is a factual basis, supported by the applicable law, that establishes that the claims weigh in their favour (subject to the issue of valid defences and the weighing test addressed below).

[162] I find that (i) the “sting” of the Impugned Statements was that the plaintiffs were homophobic, transphobic, and anti-LGBTQ2S+ and (ii) such words “tend to lower [the plaintiffs’] reputation in the eyes of a reasonable person”.

[163] By way of example, summarized from the evidence above:

(i) Wong-Tam’s January 11 Tweets referred to Volpe’s “homophobic and transphobic rantings”; stated that Volpe “strives” to make “LGBTQ2S+ kids [not] feel safe in homes, communities and schools”; and implied that Corriere was a publication that “promotes homophobia, transphobia”;

(ii) Wong-Tam’s January 14 Tweet stated that Corriere is “actively promoting hate against LGBTQ2S+ students & families”;

(iii) After referring to Volpe and Corriere’s articles, the Motion suggested that Corriere was a “community newspaper that espouses discrimination and harassment against the LGBTQ2S+ community”;

(iv) The Joint Letter stated that the plaintiffs were “writing homophobic and transphobic articles that attack our students”, with articles that “spread homophobia & transphobia and … have the effect of intimidating and further marginalizing our LGBTQ students”, with “outdated arguments and vile homophobia and transphobia”;

(v) Statements by the councillors at the Press Conference implied that Corriere was engaged in “bullying”, “harassment”, and failing to “uphold equity and human rights”; and that Corriere’s beliefs were “contrary” to equal rights for LGBTQ2S+ students;

(vi) Rizzo stated at the Press Conference that Volpe engaged in “the hypocrisy of homophobia, transphobia and fearmongering”, through “homophobic and transphobic hatred to our LGBTQ2S+ staff, students and families”, demonstrating “evil that is so clear and compelling”, “fear, ignorance, bigotry”, “hatred” and “discrimination” while “spew[ing] bigotry, contempt and malice”;

(vii) Di Pasquale stated at the Press Conference that the Volpe articles “discriminate and attack our most marginalized students”, “foster discrimination and intolerance” and “make LGBTQ students feel unsafe”; and

(viii) The Yahoo Article stated that Volpe had “well documented anti-LGBTQ+ views”.

[164] The above evidence provides sufficient support that the Impugned Statements were published and refer to the plaintiffs.

[165] I also find that it weighs in favour of the plaintiffs that a court would find that the Impugned Statements are defamatory, i.e., that they tend to lower the reputation of the plaintiffs. The above examples of comments, read collectively, establish that the sting of the defendants’ comments was that the plaintiffs were homophobic, transphobic, and anti-LGBTQ2S+. Comments with that sting tend to lower the reputation of the plaintiffs.

[166] The defendants submit that “[i]t is not defamatory to draw attention to a person’s own statements”, relying on the decision in Wright v. Van Gaalen, 2011 BCSC 707.

[167] However, in Wright, Schultes J. held, at para. 112, that “[o]bviously, merely forwarding someone's own comments in an email cannot in itself amount to defamation - it must be found in something actually written by the person who forwarded it”. In the present case, as set out above, the defamation claim is grounded in the Impugned Statements, all of which commented on the concerns arising from the plaintiffs’ articles.

[168] Further, as in Mondal, the plaintiffs were not only “forwarding” Volpe’s comments about the LGBTQ2S+ community, but did so with “accompanying” commentary (much more so than the singe sentence in Mondal) “that draws further attention” to the Volpe comments, and as such, “cannot help but lower the professional and personal reputation” of the plaintiffs: at para. 24.

[169] Consequently, I follow the approach of the courts as discussed above and find that the plaintiffs have established the “substantial merit” of their defamation claim, i.e., a real prospect of success that weighs in their favour.

[170] However, as I discuss below, I find that as in Bernier, Mondal, and Levant, the plaintiffs failed to meet the requirements under either s. 137.1(4)(a)(ii) or s. 137.1(4)(b).

[171] Before addressing the defences to the defamation claim and the weighing test, I briefly review the other causes of action relied upon by the plaintiffs, which I find do not establish a real prospect of success.

(2) Misfeasance in a public office (abuse of process)

(a) The applicable law

[172] The claim of misfeasance in public office is made against the defendant councillors and the trustees.

[173] The elements of the tort of misfeasance in a public office are summarized in The Catalyst Group Inc. v. Dundee Kilmer, 2022 ONCA 168, at paras. 12-16, reviewing the seminal case of Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 63. I adopt the summary of the law as set out in the Wong-Tam and Ainslie factum (footnotes omitted):

Misfeasance in public office is an intentional tort, grounded in bad faith, and is difficult to establish. To succeed in a claim for misfeasance in a public office, the Plaintiffs must prove:

1. The defendants were public officials exercising public functions at the relevant time;

2. The public official deliberately engaged in an unlawful act in their public capacity, typically established by proving any of:

a) An act in excess of the public official’s powers;

b) An exercise of a power for an improper purpose; or

c) A breach of statutory duty;

3. The public official acted in bad faith, being aware both that their conduct was unlawful and that it was likely to harm the plaintiff;

4. The public official’s tortious conduct was the legal cause of the plaintiff’s injuries; and

5. The injuries suffered are compensable in tort law.

The fact that a public official makes a decision that harms a member of the public is not, in and of itself, a basis to infer bad faith.

[174] As I discuss at para. 144 above, the plaintiffs also rely on an “abuse of authority” claim based on the decision in Roncarelli v. Duplessis, [1959] S.C.R. 121, in which the court set out the requirements for the tort as (i) the exercise of government authority by a government actor, (ii) outside the scope of legal authority, and (iii) which intentionally damages a person’s interests: at pp. 158-59.

[175] The plaintiffs submit that the availability of a claim in abuse of authority, outside the tort of misfeasance in public office, is “uncertain”. I do not agree.

[176] In Odhavji Estate, at para. 19, the court incorporated its analysis in Roncarelli in its review of the history of the tort of misfeasance in public office. I rely on that analysis to conclude that the tort of abuse of authority does not remain as an independent tort and instead is subsumed by the tort of misfeasance of public office.

[177] However, the issue is not determinative as the plaintiffs have not established a real prospect of success on an abuse of authority claim (even if available), since the law and evidence do not support a finding that the claim weighs in their favour.

[178] Consequently, I address the application of the law to the facts of the present case for both the misfeasance in public office and abuse of authority claim.

(b) Application of the law to the facts of the present case

[179] There is no evidence that any of the councillors or trustees deliberately engaged in any act that could constitute either misfeasance in public office or an abuse of authority, on the “weighs in favour of the plaintiffs” threshold required under Pointes.

[180] There is no evidence that any of the councillors or trustees acted outside the bounds of their public functions.

[181] Under s. 131 of the CTA, the councillors were required to, amongst other things, (i) represent the public and consider the well-being and interests of the City, (ii) develop and evaluate the policies and programs of the City, and (iii) ensure that administrative policies, practices and procedures and controllership policies, practices and procedures are in place to implement the decisions of council.

[182] The evidence of the councillors is that the Impugned Statements arising from the Tweets, Motion, and Press Conference were made in their good faith efforts to represent their constituents based on their views as to the well-being and best interests of residents of the City.

[183] The trustees acted in accordance with their duties under the Education Act and under the various policies and codes of conduct governing the TCDSB.

[184] There is no evidence that any of the trustees engaged in an unlawful act, outside the scope of their duties as trustee, or in bad faith with the intention to harm the plaintiffs. To the contrary, there is nothing unlawful about seeking to protect the interests of LGBTQ2S+ students, parents and teachers in the TCDSB schools.

[185] The plaintiffs base their claim of “bad faith”, “unlawful” conduct, and “malice”, all on the submission that (i) the councillors and trustees would have known that the effect of their conduct would have been to end City advertising in Corriere, and (ii) such conduct would be a violation of the plaintiffs’ Charter rights to freedom of expression.

[186] The plaintiffs further submit that such conduct is an act in excess of the councillors’ powers, done for an improper purpose, or a breach of statutory duty.

[187] I do not agree with the plaintiffs’ submissions.

[188] The only evidence before the court is that the councillors acted in good faith to address the public interest in having taxpayer funds being used to advertise in a newspaper which the councillors believed to be homophobic, transphobic, and anti-LGBTQ2S+, in a manner contrary to both the HRAP and the interests of the councillors’ constituents.

[189] The councillor defendants explicitly indicated at the outset of the Motion that they were bringing the Motion because of their duties and obligations under the HRAP as City councillors. At all times the councillor defendants acted in good faith.

[190] Similarly, the trustees acted in good faith with respect to the Motion, consistent with their obligation to protect the interests of LGBTQ2S+ students, parents and teachers in the TCDSB schools.

[191] There is no evidence that either the councillors or the trustees were motivated by malice.

[192] Councillors and trustees must be able to take positions on issues of importance to their constituents, without facing the risk of a claim for misfeasance in public office when a person disagrees with that position. Such an approach is consistent with the comments of the court in The Catalyst Capital Group, at para. 16, in which the court adopted its earlier comment in Pikangikum First Nation v. Nault, 2012 ONCA 705, 298 O.A.C. 14, at para. 77, leave to appeal refused, [2013] S.C.C.A. No. 10, that:

The tort of misfeasance of public office is difficult to establish. The plaintiff must prove more than mere negligence, mismanagement or poor judgment. To succeed, the plaintiff must demonstrate that the defendant knowingly acted illegally and in bad faith chose a course of action specifically to injure the plaintiff. [Emphasis added.]

[193] For the above reasons, the plaintiffs have failed to establish a real prospect of success against the councillors or the trustees on the misfeasance in public office claim, or the abuse of authority claim if it is considered as an independent tort. There are no grounds to believe that either claim has substantial merit, i.e., that such a finding weighs in favour of the plaintiffs.

(3) Inducing breach of contract

(a) The applicable law

[194] This claim is brought against the defendant councillors and trustees.

[195] In Drouillard v. Cogeco Cable Inc., 2007 ONCA 322, 86 O.R. (3d) 431, the court set out the required elements to establish the tort of inducing breach of contract, at para. 26:

(i) The plaintiff had a valid and enforceable contract with a third party that was breached;

(ii) The defendant had knowledge of this contract;

(iii) The defendant’s conduct was intended to, and did in fact cause, the third party to breach the contract; and

(iv) The plaintiff suffered damage as a result of the breach.

[196] The law on this issue is not in dispute on this motion.

(b) Application of the law to the facts of the present case

[197] There is no evidence to support a claim for inducing breach of contract against either the councillors or the trustees. None of the requirements of the tort weigh in the plaintiffs’ favour.

[198] There is no evidence that the plaintiffs had a contract which was suspended as a result of the defendants’ Impugned Statements. Even if there