Greenaway v. Festeryga, 2022 ONSC 3210

COURT FILE NO.: CV-18-26870

DATE: 20220531

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David G. Greenaway, Plaintiff

AND:

Peter J. Festeryga, Defendant

BEFORE: Justice R. Raikes

COUNSEL: Raymond G. Colautti - Counsel, for the Plaintiff

Sean Murtha - Counsel, for the Defendant

HEARD: January 18, 2022

ENDORSEMENT

[1] The plaintiff sues the defendant for damages for defamation – libel - arising from an article written by the defendant that was published in the June 2018 edition of Without Prejudice, the official journal of the Ontario Insurance Adjusters Association (“OIAA”). The plaintiff moves for summary judgment.

[2] The defendant has defended the action. He pleads, inter alia, the defences of justification (truth), fair comment, and qualified privilege. He moves for an order dismissing the action pursuant to s. 137.1 of the Courts of Justice Act (known as the SLAPP provisions).

Background

[3] The plaintiff and defendant are lawyers. They were partners in the same law firm until its dissolution in 2008.

[4] In November 2016, they were counsel on opposite sides of a motor vehicle accident action arising from a 2008 accident. The action was scheduled for trial in Windsor in December of that year. Mr. Greenaway acted for the plaintiffs and Mr. Festeryga for the defendant.

[5] On November 22, 2016, roughly two weeks before the scheduled trial date, counsel and the parties attended a judicial pretrial before Bondy J.. Mr. Festeryga’s wife, also a lawyer, was present as was a representative of the insurer.

[6] The action settled at the pretrial conference for $850,000. There were no written minutes of settlement. The next day, Mr. Festeryga wrote to Mr. Greenaway to advise that the settlement was off because Mr. Greenaway had misrepresented the independence of two witnesses during the pretrial conference. Mr. Festeryga asserted that he and his client had relied on Mr. Greenaway’s misrepresentations in agreeing to settle at the amount they did.

[7] The plaintiffs brought a motion to enforce the settlement. Affidavits were filed. Cross-examinations were conducted. The motion was argued before Heeney J..

[8] On February 20, 2018, Justice Heeney released his decision in which he found in favour of the defendant. He declined to enforce the settlement. In his reasons, Justice Heeney found that:

1. He preferred the evidence of Mr. Festeryga because he took notes during the pretrial and his evidence was consistent with those notes.

2. According to Mr. Festeryga’s affidavit, during the pretrial, Mr. Greenaway referred to having “independent witnesses” whom he described as “good people…independent…solid…good witnesses”.

3. Those statements were made for the purpose of causing the defendant to believe that the witnesses were neutral, had no connection to anyone involved in the case, and therefore had no reason to favour either side with their evidence. They would be credible and reliable witnesses. (See para. 43.)

4. Those representation had the desired effect and had a predictable effect on the negotiations that followed. (Para. 43)

5. The representations made by Mr. Greenaway that the witnesses were independent, good and solid witnesses were untrue. Mr. Greenaway knew they were untrue or at the very least, he was reckless as to whether they were true or not. (Para. 46)

6. The witnesses were not independent. They had an ongoing relationship with the plaintiff. They contacted the plaintiff at his office to advise that they had witnessed the accident. The plaintiff advised Mr. Greenaway of their names, addresses and phone numbers. (Para. 47)

7. It was reckless of Mr. Greenaway to assert that they were independent witnesses given what he knew of their relationship with the plaintiff. (Para. 47)

8. It was also “patently untrue” to describe the witnesses as good solid people who would make good witnesses. Mr. Greenaway’s investigator had reported otherwise, and Mr. Greenaway had concerns about them as witnesses from his own meeting with them. (Para. 49)

9. Justice Heeney was satisfied on a balance of probabilities that all four elements of civil fraud were proven. At para. 51, he wrote:

“… False representations were made by Mr Greenaway, both as to the independence of the Eftimovs and as to their qualities as good witnesses. He knew, or at the very least was reckless, that these representations were false. These representations caused counsel for the defendant and the adjuster to act, and to largely concede the liability issue and settle the case. And finally, the defendant suffered a loss, in that the case was settled for substantially more money than the defendant would have offered but for the false representations.

10. He rejected the submission that the statements made by Mr. Greenaway were merely submissions of counsel amounting to contention or argument and could not be characterized as misrepresentations. (Para. 60)

11. At para. 62, he wrote:

[62] The plaintiff also argues that he had no duty under the Rules or otherwise to disclose the fact that there was a relationship between him and the Eftimovs, nor the fact that they would make very poor witnesses. It was open to counsel for the defendant to explore those issues during discoveries and they did not do so. All of that is quite true. However, this case is not about disclosure, it is about good faith and honesty. While Mr Greenaway had no duty to proactively provide information as to the independence and other qualities of the Eftimovs as witnesses, once he voluntarily chose to do so he had a duty to provide true and accurate information.

[9] In his subsequent cost decision, Justice Heeney characterized Mr. Greenaway’s statements at the pretrial as overzealous.

[10] The plaintiff promptly appealed the r. 49 decision of Justice Heeney to the Court of Appeal.

[11] After the appeal was launched, Mr. Festeryga wrote the impugned article published in OIAA’s June 2018 Without Prejudice publication. That publication targets insurance adjusters throughout Ontario and is distributed to all active and associate members of OIAA as well as any subscribing members.

The Article

[12] The article written by Mr. Festeryga is entitled:

FALSE WITNESS!

RE: Paulus v. Fleury (2018) ONSC 1188

[Bold in original.]

[13] On the first page is a picture of a man with his back to the camera with his left hand held up as if swearing to the truth and his right hand behind his back with fingers crossed. The clear inference is that notwithstanding promising to tell the truth, the person is lying. Immediately above the picture, the following is written:

How many times have you paid serious money on a file where you did not believe the Plaintiff or trust their story?

Have you settled files notwithstanding you had a nagging feeling that something didn't “ring true” or, just “wasn't right” about a witness?

[Bold in original.]

[14] Although the title and words in the article were written by Mr. Festeryga, he denied any awareness of or involvement in the selection of the picture. No evidence was proffered by the plaintiff to the contrary.

[15] On the second page, the article contains the following:

Have there been times when you wanted to investigate the truthfulness of something or the integrity of someone on a hunch even when you didn't really have evidence of wrongdoing, but only a feeling?

Finally, have there been times when you wish you could discover something after a settlement and then tell the plaintiff “the deal is off - you are a cheat”?

In Paulus a Pre-Trial was held resulting in the parties agreeing to settle the case for $850,000 inclusive. No minutes of settlement were executed. The following day I wrote to the Plaintiff's lawyer to advise that there was no settlement. Information first discovered just hours after the conclusion of the Pre-Trial caused me to understand that we had settled at the trial on the basis of false and misleading representations made by plaintiff’s counsel. These representations dealt with the independence and quality of the witnesses, Boris and Pavlina Eftimov, and their statement proffered by the Plaintiff.

[Italics added.]

[16] The article refers to Justice Heeney’s decision as “landmark”. It provides context for the decision by way of procedural history (a r. 49.09(a) motion) and sets out in brief the essential findings of Justice Heeney including that he declined to enforce the settlement “as he was satisfied that the settlement had been obtained by civil fraud on the part of the Plaintiff’s lawyer at the Pre-Trial”.

[17] Mr. Festeryga wrote:

The Paulus decision is brimming with precedent-setting findings and pronouncements on several subjects of substantive and procedural law. The twists and turns of the facts of the case read like a classic detective novel. The legal issues, drama and intrigue involving the true nature of the Eftimovs and the documents obtained from the Plaintiff’s lawyer on Cross-Examination could fill a book on its own. Much of the interesting background information is not contained in Mr. Justice Heeney’s 13 page decision. Furthermore, the surprisingly Pro-Defendant approach taken by High Courts in the U.S., U.K. and Australia in setting aside settlements is not specifically referred to in Mr. Justice Heeney’s decision.

The Paulus decision impacts the use of Rule 31.10 to depose non-parties, Summary Judgment motions, Rule 49.09 Motions, expands the Law of Civil Fraud and broadens the Supreme Court's pronouncement on the duty to act in “good faith” when performing contracts. However, the most dramatic effect will be on how far lawyers can go in “selling” evidence and “advocating” their client’s case.

To properly present the significant legal and factual issues involved in the Paulus decision the OIAA Executive and Festeryga Partners are arranging to conduct a live podcast in September for all members of the OIAA. ...

[18] The article does not mention the pending appeal although that was known to Mr. Festeryga at all material times. Mr. Festeryga also made no mention of the positions advanced on the r. 49 motion by the Plaintiffs or that Justice Heeney in his cost decision had characterized Mr. Greenaway’s statements at the pretrial as perhaps “overzealous”.

Other Articles

[19] The article written by Mr. Festeryga was not the only publication that dealt with Justice Heeney’s decision in Paulus. For example, the Law Times published an article entitled, “Duty of good faith emphasized in decision”. A lawyer at Miller Thomson posted an article on his firm’s website entitled, “No Enforceable Settlement: Civil Fraud at Pre-Trial Results in Costs Award of $100,000 Payable to the Defendant”. The latter article referred to Justice Heeney’s cost decision but also quoted from the r. 49 motion decision. Although the Law Times article specifically mentioned the fact that an appeal to the Court of Appeal was pending, the Miller Thomson article did not.

[20] I observe that the tone and tenor of the other published articles are very different from that written by Mr. Festeryga. They report on the decision(s) in a far more neutral and professional manner. There is no obvious self-aggrandizement or self-promotion evident, nor do they use words like “cheat”. The authors did not insert themselves into the story as Mr. Festeryga did.

Court of Appeal Decision

[21] The appeal to the Court of Appeal was heard October 15, 2018. Its decision was released December 21, 2018. The Court of Appeal overturned Justice Heeney’s decision and ordered that the settlement reached at the pretrial conference be enforced.

[22] At para. 10 of the decision, Justice Pardu wrote:

[10] Here the statement by counsel was an opinion, not a statement of fact, counsel did not have the mental state or intention required for civil fraud in the context of submissions made by counsel before a judge and the defendant’s lack of due diligence barred it from setting aside the settlement on the ground of fraud. …

[23] At paras. 22-24, she wrote:

[22] Here counsel’s statement did not amount to civil fraud. There was a reasonable basis for his statement and the statement was made in good faith.

(a) Reasonable Basis

[23] The statements by counsel were expressions of opinion for which there was a reasonable basis, given counsel’s knowledge at the time of the pretrial. There was no familial relationship between the plaintiffs and the witnesses. Although the plaintiffs’ counsel knew that the witnesses were acquainted with the plaintiffs, the nature of their acquaintance was unknown. Neither was an employee of the other. The witnesses were in their own car adjacent to the accident scene. They had nothing to gain from the trial of the accident claim. That they had difficulty expressing themselves in English did not mean they were not good people nor that they would make poor witnesses if translation was provided. There is no indication of any criminal record that might undermine their credibility or any other history of dishonesty. That they refused to speak to the defendant’s counsel, as was their right, did not undermine their credibility. The fact that the plaintiffs gave the witness’ contact information to their counsel does not mean that the witnesses were biased.

[24] The plaintiffs’ counsel's description of the witnesses was a legitimate exercise of advocacy. No complaint could have been made if counsel had provided a jury with the same observations concerning the quality of the witnesses in issue. Opinions as to whether someone is a good or independent witness are as open to debate and disagreement as opinions as to whether someone is a good lawyer. …

[24] Justice Pardu held that given the adversarial nature of the impugned statements, it would be unreasonable to conclude that plaintiff’s counsel intended that opposing counsel rely on his statements as to the qualities of the witnesses in deciding whether to settle the action: para. 33.

[25] Finally, the accident happened in 2008. The witness statements from the Eftimov’s were disclosed to defence counsel in an affidavit of documents. Defence counsel asked no questions at the discoveries about the statements provided. He knew the Eftimovs refused to speak with him. Defence counsel waited until four days before the pretrial to send his investigator to explore any connections between the plaintiffs and the witnesses, and he settled the action before that report was received.

[26] At para. 36, Justice Pardu wrote:

[36] This pretrial occurred some eight years after the accident. It cannot be said that the defendant’s counsel acted with due diligence in investigating or asking any questions about any link between the plaintiffs and the witnesses. …

[27] The upshot of the Court of Appeal’s decision is this:

1. Mr. Greenaway made no false misrepresentation of fact to Mr. Festeryga at the pretrial.

2. Any statements made by him at the pretrial regarding the Eftimovs were expressions of opinion for which he had a reasonable basis to believe their truth.

3. His statements were opinion and advocacy.

4. There was no reasonable expectation that Mr. Festeryga would rely on his statements.

5. Mr. Festeryga had years to do his due diligence concerning the Eftimovs and left it to four days before the pretrial.

6. Mr. Festeryga and his client settled the action knowing that investigation was ongoing.

7. Mr. Festeryga did not act with due diligence.

8. There was no civil fraud by Mr. Greenaway.

Libel Notice and Start of this Litigation

[28] Mr. Greenaway learned of the article written by Mr. Festeryga from the lawyer acting on his behalf on the costs issue arising from r. 49 motion. The defendant was seeking an order that Mr. Greenaway pay costs personally on a substantial indemnity basis. His counsel, Mr. Szalkai, is a member of local Bar.

[29] On July 20, 2018, the plaintiff served a Libel Notice on Mr. Festeryga, Without Prejudice, and OIAA.

[30] Without Prejudice and OIAA acted immediately upon receipt of the notice. The article was removed from its online edition. If anyone sought to access that edition, a notice would pop up which stated:

PLEASE NOTE

In the WP Magazine June 2018 edition, an article “FALSE WITNESS! RE Paulus v. Fleury (2018) ONSC 1188” written by Peter J. Festeryga was published. Mr. Festeryga was the lawyer acting for the Defendant in the referenced Court case and only his views, opinions and beliefs are represented in the article. WP Magazine does not adopt the views, opinions and beliefs expressed therein. The case referenced in the article has been appealed.

[31] Mr. Festeryga responded to the Libel Notice. He disputed that the notice presented a case for libel on the law or facts. He asserted that the purpose of the notice was “to silence fair comment and freedom of expression”.

[32] This action was commenced by Notice of Action issued September 19, 2018. The Statement of Claim seeking damages for libel was issued October 18, 2018.

[33] Mr. Festeryga served his Statement of Defence on June 28, 2019. Among the defences pleaded by Mr. Festeryga are justification or truth of the words written and published, fair comment, and qualified privilege.

[34] Mr. Festeryga has never offered a retraction or an apology. To the contrary, he continues to plead the truth of the statements made in the article and in cross-examination on his affidavit sworn for these motions, he made clear that he felt the Court of Appeal decision was wrong and/or was made for technical reasons.

Impacts of the Article

[35] As at the date of the article, Mr. Greenaway had been a practising lawyer for 37 years, most of which were spent doing civil litigation. He had taught Civil Procedure at the University of Windsor Law School and had been an instructor in Civil Trial Advocacy for the Bar Admission Course in London. He was a past director of the Essex Law Association. At that time, he was a sole practitioner.

[36] Mr. Greenaway deposed that he was unhappy and angered by Justice Heeney’s decision which he felt was wrong. His anger and frustration led him to see a psychologist for one visit that occurred before the article was published.

[37] In his affidavit sworn September 25, 2020, Mr. Greenaway deposed that while he was ready to fight the merits of Justice Heeney’s decision through an appeal, he was “devastated by the attacks against my honesty and integrity that Mr. Festeryga publicly made in the article”. He was “not at all equipped for the mean and false aspersions that he [Mr. Festeryga] cast upon me and my character in the article”.

[38] At para. 66 of that affidavit, Mr. Greenaway deposed that:

66. The most significant effect of Festeryga’s defamatory statement was that I was thereafter profoundly embarrassed to be seen by my peers, the judiciary and to walk the halls of the local Essex County Courthouse. I feared my peers would think less of me and that judges would regard me with opprobrium. Whereas I had been, to that point, a proud litigator in every respect, I was now ashamed to be seen in the halls of the Courthouse. Following the publication, I felt destroyed.

[39] At para. 54 of his affidavit, he deposed that:

54. Practicing civil litigation, I frequently had to negotiate settlements with opposing lawyers. These kinds of scandalous and defamatory statements would impair my ability to continue practicing my profession. I was embarrassed and humiliated by the defamatory statements and I also believe that I suffered a severe loss of reputation

[40] Mr. Greenaway retired from practice on December 31, 2019. His affidavit does not link his retirement to the alleged defamatory statements nor the psychological impacts of same. Mr. Greenaway did not seek any medical assistance or counseling in respect of the impacts on him from the article.

[41] Since his retirement, Mr. Greenaway has established and operates a mediation service. He also serves as a Hearings and Appeals Officer for the Town of LaSalle. In that capacity, he adjudicates alleged by-law infractions. There is no evidence that his ongoing activities have been adversely affected by the article.

The Motions

[42] As indicated at the outset, the plaintiff moves for summary judgment and the defendant moves to dismiss the action pursuant to s. 137.1 of the Courts of Justice Act. The defendant’s motion was brought after the summary judgment motion was served. The affidavits filed by the parties are common to both motions.

SLAPP motion

[43] In 2015, legislation was enacted aimed at preventing strategic lawsuits against public participation, known as SLAPPs. Sections 137.1 to 137.5 were added to the Courts of Justice Act.

[44] In 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, the Supreme Court of Canada provided direction with respect to the purpose of the legislation and the analytical framework to be applied. At para. 2, Justice Cote explained what was meant by a SLAPP:

[2] Strategic lawsuits against public participation (“SLAPPs”) are a phenomenon used to describe exactly what the acronym refers to: lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest. SLAPPs are generally initiated by plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others. In a SLAPP, the claim is merely a facade for the plaintiff, who is in fact manipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs.

[45] Section 137.1 states:

137.1(1) the purposes of this section and sections 137.2 and 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.

(2) In this section, “expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

(3) On a motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party's expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.

(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,

(a) in order to prevent or avoid an order under this section dismissing the proceeding; or

(b) if the proceeding is dismissed under this section, in order to continue the proceeding.

(9) If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.

[46] The motion under s. 137.1 may be made at any time after the proceeding is commenced: s. 137.2(1), Courts of Justice Act.

[47] Section 137.1 is meant to screen out lawsuits that unduly limit expression on matters of public interest: Pointes Protection Ltd., at para. 16.

[48] Justice Cote in Pointes Protection Ltd. explained the analytical framework under s. 137.1 as follows:

[18] In brief, s. 137.1 places in initial burden on the moving party - the defendant in a lawsuit - to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. Once that showing is made, the burden shifts to the responding party - the plaintiff - to satisfy the motion judge that there are grounds to believe that the proceeding has substantial merit and the moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If the responding party cannot satisfy the motion judge that it has met its burden, then the s. 137.1 motion will be granted and the underlying proceeding will be consequently dismissed. It is important to recognize that the final weighing exercise under s. 137.1(4)(b) is the fundamental crux of the analysis: as noted repeatedly above, the APR [Anti-SLAPP Advisory Panel: Report to the Attorney General] and the legislative debates emphasized balancing and proportionality between the public interest in allowing meritorious lawsuits to proceed and the public interest in protecting expression on matters of public interest. Section 137.1(4)(b) is intended to optimize that balance. [Italics added.]

Threshold burden: s. 137.1(3)

[49] The threshold burden on the defendant under subsection (3) requires the defendant to show on a balance of probabilities that: 1) the proceeding arises from an expression made by the defendant, and 2) the expression relates to a matter of public interest: Pointes Protection Ltd., at paras. 21 and 24; s. 137.1(3).

[50] The plaintiff’s claim in the action before me is for libel. It is alleged that the defendant wrote something – an articled published in Without Prejudice Magazine – that is defamatory. Thus, the proceeding arises from an “expression” made by the defendant.

[51] The plaintiff concedes that the article in question relates to a matter of public interest. Judicial decisions are sometimes noteworthy for the legal principles they delineate, for changes or expansion of their application to new fact situations, and for their relevance to those who work within systems that are integrally connected to the legal system like motor vehicle insurance. Justice Heeney’s decision had relevance for members of the Bar, insurance adjusters, and the public.

[52] Thus, the defendant has satisfied the threshold burden under s. 137.1(3). The burden passes to the plaintiff under s. 137.1(4).

Section 137.1(4) Burden

[53] The burden on the plaintiff in s. 137.1(4) has two components: 1) a merits-based analysis and 2) a weighing of the public interest in “vindicating legitimate claims through the courts against the resulting potential for quelling expression on matters of public interest”: Pointes Protection Ltd., at para. 33.

Merits-Based Hurdle

[54] In Pointes Protection Ltd., Justice Cote noted that the motion judge need only have “grounds to believe” that the claim has substantial merit and the defendant has no valid defence: see para. 35. Because the motion can be brought at any time, the court must be acutely aware of the limited record, the timing of the motion in the litigation process, and the potential for future evidence to come forward: see para. 37. Although the limited record may not allow for the ultimate adjudication of the issues, it requires an inquiry that goes beyond the parties’ pleadings to consider the motion record: see para. 38.

[55] There must be a basis in the record and the law to find that the underlying proceeding has substantial merit and there is no valid defence: Pointes Protection Ltd., at para. 39. “Grounds to believe” has been equated in other contexts with requiring “something more than mere suspicion, but less than … proof on the balance of probabilities”: para. 40. The assessment is subjective and is based on the motion judge’s perspective: para. 41.

[56] Justice Cote summarized the applicable test as follows:

[42] Taking all of the foregoing together, what s. 137.1(4)(a) asks, in effect, is whether the motion judge concludes from his or her assessment of the record that there is a basis in fact and in law - taking into account the context of the proceeding - to support a finding that the plaintiff’s claim has substantial merit and that the defendant has no valid defence to the claim.

[57] With respect to what is meant by “substantial merit” in s. 137.1(4)(a)(i), Justice Cote wrote at para. 49:

[49] … for an underlying proceeding to have “substantial merit”, it must have a real prospect of success - in other words, a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff. In context with "grounds to believe”, this term means that the motion judge needs to be satisfied that there is a basis in the record and the law - taking into account the stage of proceeding - for drawing such a conclusion. This requires that the claim be legally tenable and supported by evidence that is reasonably capable of belief.

[58] The substantial merit standard is higher than “some chance of success” or “a reasonable prospect of success”. A claim with merely some chance of success will not meet the substantial merit test: Pointes Protection Ltd., at para. 50. The plaintiff must show more than an arguable case, but the substantial merit standard lies below a “strong prima facie case” or the test on a motion for summary judgment: Pointes Protection Ltd., at para. 51.

[59] Justice Cote cautioned against diving too deeply into the assessment of credibility and the evidence. At para. 52, she wrote:

[52] … As a result, the motion judge deciding a s. 137.1 motion should engage in only limited weighing of the evidence and should defer ultimate assessments of credibility and other questions requiring a deep dive into the evidence to a later stage, where judicial powers of inquiry are broader and pleadings more fully developed. This is not to say that the motion judge should take the motion evidence at face value or that bald allegations are sufficient; again, the judge should engage in limited weighing an assessment of the evidence adduced. This might also include a preliminary assessment of credibility - indeed, the legislative scheme allows limited cross-examination of affiants, which suggests that the legislature contemplated the potential for conflicts in the evidence that would have to be resolved by the motion judge. However, s. 137.1(4)(a)(i) is not an adjudication of the merits of the underlying proceeding; the motion judge should be acutely conscious of the stage of the litigation process at which a s. 137.1 motion is brought and, in assessing the motion, should be wary of turning his or her assessment into a de facto summary judgment motion, which would be insurmountable at this stage of the proceedings.

[60] With respect to the requirement that the plaintiff show that there are grounds to believe that the defendant has no valid defence, the following principles emerge from Pointes Protection Ltd.:

1. If there is any defence that is valid, the plaintiff has not met his burden and the claim should be dismissed (para. 58).

2. The motion judge should engage in a limited assessment of the evidence to determine the validity of the defence (para. 58).

3. The inquiry under s. 137.1(4)(a)(ii) mirrors that under (i) (para. 59).

4. The motion judge must ascertain whether the plaintiff has shown that the defence(s) put in play are not legally tenable or supported by evidence that is reasonably capable of belief such that they can be said to have no real prospect of success (para. 59).

5. “Substantial merit” and “no valid defence” are constituent elements of the overall assessment of the prospect of success of the underlying claim.

[61] I preface my analysis of the substantial merit and no valid defence prongs by observing that the s. 137.1 motion was brought after the plaintiff served his motion materials for the summary judgment motion. The evidence filed by the defendant responds to that motion and is filed in support of his motion to dismiss. Cross-examinations on the affidavits have occurred. The two motions were argued together.

[62] Each party on a motion for summary judgment is presumed to have put their best foot forward. Here, the evidentiary context for the s. 137.1(4)(a) analysis is relatively fulsome, and certainly more fulsome than if the SLAPP motion had been brought soon after pleadings were exchanged.

[63] I turn now to whether there are grounds to believe that the plaintiff’s claim has substantial merit: s. 137.1(4)(a)(i).

i. Substantial Merit

[64] The plaintiff’s claim is for damages for defamation.

[65] A statement is defamatory if it tends to lower the reputation of the plaintiff in his or her community in the estimation of reasonable persons: Crookes v. Newton, 2011 SCC 47, at para. 39; Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3, at para. 62.

[66] For a publication to be defamatory, the court must be satisfied that:

1. The impugned words are defamatory in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

2. The words, in fact, referred to the plaintiff; and

3. The words were published: Health Genetic Center Corp. o/a Health Genetics Center v. New Scientist Magazine, 2018 ONSC 7224, at para. 43; Grant v. Torstar Corp., 2009 SCC 61, at para. 28.

[67] To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who received it: McNichol v. Grandy, 1931 CanLII 99 (SCC), [1931] S.C.R. 696, at p. 699. In general, the form that the defendant’s act takes, and the manner used to cause the defamatory content to reach a third party are irrelevant: Crookes, at para. 16.

[68] Once the plaintiff proves a defamatory publication on a balance of probabilities, the onus shifts to the defendant to advance a defence to escape liability: Grant, at para. 29.

[69] I am satisfied that there are grounds to believe that there is substantial merit to the plaintiff’s claim that he was defamed by Mr. Festeryga. The article expressly accused Mr. Greenaway of making false and misleading representations to Mr. Festerga during the pretrial conference. The statement that plaintiff’s counsel [Mr. Greenaway] made false and misleading representations concerning witnesses to the accident follows shortly after the following:

Finally, have there been times when you wish you could discover something after a settlement and then tell the plaintiff “the deal is off - you are a cheat”? [Italics added].

The import of the words used and the article as a whole is that Mr. Greenaway lied to opposing counsel and the court and was untrustworthy.

[70] The article was published in a magazine that catered to insurance adjusters – the very people Mr. Greenaway had to deal with in his practice as a plaintiffs’ side personal injury lawyer.

[71] There is no greater asset for a lawyer than his reputation including that for honesty and integrity: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at paras. 118 and 119. The statements made by Mr. Festeryga would tend to lower Mr. Greenaway’s reputation within the personal injury insurance community and in the eyes of a reasonable person.

[72] Mr. Festeryga did not name Mr. Greenaway in the article but did provide the case citation to Justice Heeney’s decision in which Mr. Greenaway was expressly named. Mr. Greenaway’s identity was readily ascertainable, and, in fact, the article invited the reader to read the case.

[73] There is no dispute that the words complained of were published. The third criterion is admitted.

[74] Thus, I have grounds to believe that there is substantial merit to the claim for defamation. The claim is tenable in law and on the facts. It has a real prospect of success.

[75] I turn next to the second prong: whether the plaintiff has established that there are grounds to believe that the defendant has no valid defence.

ii. No Valid Defence

[76] The defendant has pleaded justification, fair comment, and qualified privilege by way of defence. During oral argument, Mr. Murtha made submissions only with respect to the latter two. Nevertheless, I will address all three since they are pleaded, and justification has not been expressly withdrawn.

Truth/Justification

[77] In Health Genetic Center Corp., Justice Lederer succinctly summarized the applicable legal principles for the defences advanced by the defendant in the case before me. With respect to the defence of truth, or justification as it is sometimes called, he wrote at paras. 50-52:

50. …I start with justification:

Defamatory words are presumed to be false. The onus is on the defendant to displace the presumption of falsity by establishing the truth of the defamatory words as a matter of fact [Peter A. Downard, Libel, Third Edition, supra (fn. 33) at p. 105 referring to Littleton v. Hamilton, 1974 CanLII 438 (ON CA), [1974] O.J.No. 1955, 4 O.R. (2d) 283 (Ont. C.A.) at 286 leave to appeal to S.C.C. refused (1974), 4 O.R. (2d) 283n (S.C.C.); Govenlock v. London Free Press Co., 1915 CanLII 555 (ON CA), [1915] O.J. No. 15, 35 O.L.R. 79 (Ont. C.A.) at 83; Jameel v. Wall Street Journal Europe SPRL (No.3), [2005] EWCA Civ 64 (Eng. H.L.] at para. 4 rev’d on other grounds (2006), [2007] 1 A.C. 359 (Eng. H.L.).

51. No matter how damaging or disparaging it may be to the plaintiffs, the truth can never be actionable. A plaintiff has no right to shield his or her character or reputation from an imputation that is not false [Raymond Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand and United States), Second Edition (Toronto: Thomson Reuters Limited) at ch. 10, para. 10.2]. The defence of justification or “Truth” is a complete defence. If the facts which comprise the defamatory material are true, a defendant cannot succeed … [Leenen v. Canadian Broadcasting Corp. (2000), 2000 CanLII 22380 (ON SC), 48 O.R. (3d) 656 (Ont. S.C.J.) at para. 92].

52. Truth is not absolute. Where an allegedly defamatory statement of fact is “substantially true” the defence of justification will apply [Grant v. Torstar, at para. 32]:

What is required to be proven is not the truth of each and every word or the literal truth of the statement, but rather the truth of the substance of the allegation or the sting of the charge … [Cimola v. Hall, 2005 BCSC 31 at para. 172].

Where the gist or sting of the charge is proven to be true, minor inaccuracies do not defeat the defence of justification … Conversely, if the overall impression of the publication is false, the defence fails even if some or even all of the literal words are proven to be true. Half-truths can be just as damaging as outright falsehoods, and their effect may be even more severe because they can be more difficult to explain ... [Cimola v. Hall at para. 173 referring to Hodgson v. Canadian Newspapers Co. (1998), 1998 CanLII 14820 (ON SC), 39 O.R. (3d) 235 (Ont. Gen. Div.) …]

[78] The substance or sting of the allegation made by Mr. Festeryga in his article was that Mr. Greenaway falsely misrepresented the independence of and quality of the evidence expected from the Eftimovs during the pretrial conference. Simply put: he lied to Mr. Festeryga and the court.

[79] I note that in reciting the factual background to the matter, Mr. Festeryga did not merely cite and refer to the findings made by Justice Heeney as other authors did. Instead, he personalized what happened at the pretrial presumably to highlight his direct knowledge and involvement.

[80] The decision of the Court of Appeal conclusively rejects that characterization of what Mr. Greenaway said at the pretrial. He did not lie. He did not make a false misrepresentation. He advocated and expressed an opinion as he was entitled to do. There was nothing inappropriate in his actions.

[81] I conclude that there are grounds to believe that the defence of justification or truth has no validity. It is not tenable in law or fact in this case.

Qualified Privilege

[82] With respect to the defence of qualified privilege, Justice Lederer wrote at paras. 133, 134, and 137:

133. … Qualified privilege has been explained as:

An occasion is privileged if a statement is fairly made by a person in the discharge of some public or private duty, or for the purpose of pursuing or protecting some private interest, provided it is made to a person who has some corresponding interest in receiving it. The duty may be either legal, social or moral. The test is whether persons of ordinary intelligence and moral principle, or the great majority of right-minded persons, would have considered it a duty to communicate the information to those to whom it was published. [Brown, The Law of Defamation, 2^nd ed. (loose-leaf) (Toronto: Carswell, 1999) at p. 13-14 quoted in Leenen v. Canadian Broadcasting Corp, supra, at para.107]

134. The privilege does not attach to the statement itself [Myers v. Canadian Broadcasting Corp., [1999] O.J. No. 4380 (Ont. S.C.J.), at para. 67 referring to Botiuk at p. 626]. At common law an occasion of qualified privilege exists if the defendant either had a duty to publish or a legitimate interest in publishing the defamation and the person or persons to whom the defamation was published had a legitimate interest in or duty to receive it [Peter A Downard, Libel, Third Edition, supra at p. 5]. Employment references, business and credit reports, and complaints to police, regulatory bodies or public authorities are classic examples of occasions of qualified privilege [United Soils Management Ltd. v. Mohammed, 2017 ONSC 4450 at para. 56; D’Addario v. Smith, 2015 ONSC 6652, [2015] O.J. No. 6459, at para. 55; and Cusson v. Quan, 2007 ONCA 771, at para. 39]. The reciprocity between the party publishing the statement and those receiving it is an essential characteristic of the circumstances that permit reliance on the defence. …

135. In Leenen v. Canadian Broadcasting Corp. the court concluded that an essential element of the defence of qualified privilege is whether the communication was made in good faith. An honest belief in the truth of the material broadcast is not sufficient to constitute good faith [Grant v. Torstar, at para. 113 referring to Teskey v. Canadian Newspapers Co. (1989), 2003 CanLII 64306 (ON SC), 68 O.R. (3d) 737 (Ont. C.A.)]. It is important that those publishing or broadcasting defamatory statements do so after a proper and thorough investigation of the facts [Grant v. Torstar, at para. 113].

[83] In Platnick v. Bent, 2018 ONCA 687, Justice Doherty summarized the defence of qualified privilege at paras. 86 and 87:

[86] Qualified privilege applies to the occasion upon which a communication is made. An occasion is privileged if the person making the communication has an interest or duty - legal, social, or moral - in making the communication to the person to whom it is made, and if that person has a corresponding interest or duty in receiving the communication: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 143. The onus is on the defendant to establish qualified privilege. The question of whether the occasion on which the communication was made is properly the subject of qualified privilege is a question of law for the trial judge: Downard, at paras. 9.10-9.11.

[87] When the defendant establishes that the comment was made on an occasion of privilege, the bona fides of the defendant is presumed and the defendant may publish the comment even though it may be defamatory or untrue. However, the plaintiff can rebut the presumption of bona fides by showing that the communication was made maliciously, dishonestly, or with reckless disregard for the truth. Similarly, qualified privilege protects only communications that are reasonably appropriate to the discharge of the duty said to create the occasion of privilege. The communication of allegations or information not reasonably appropriate to the legitimate purpose of the occasion attracting the privilege will not be protected by the defence: Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3, at paras. 78-80; Hill, at paras. 144-47.

[84] I am satisfied that the article in question, even though it contains defamatory words, was written on an occasion of qualified privilege as:

1. the decision of Justice Heeney was a potentially significant expansion of the application of the doctrine of good faith that had relevance to the enforcement of settlements and how far counsel could go in advocating for their clients;

2. Mr. Festeryga is an insurance defence lawyer whose clients included adjusters, the target audience for the magazine;

3. to the extent the article brought a potentially significant decision to the attention of those connected to the civil personal injury industry, it served a social purpose;

4. Mr. Festeryga had a legitimate interest in alerting the insurance industry to the decision; and

5. the recipients of the magazine had a genuine interest in new developments in the law as they relate to personal injury litigation.

[85] Thus, at first blush, there is a valid defence – qualified privilege. I will deal with whether there are grounds to believe that that defence is not available because the plaintiff has rebutted the presumption of bona fides after I consider whether fair comment is a tenable defence in this case. Both defences can be defeated if malice is present.

Fair Comment

[86] Justice Lederer wrote at paras. 149 -152 and 156 as follows concerning the defence of fair comment:

149. The following tests apply:

(a) The comment must be based on a matter of public interest.

(b) The comment must be based on fact.

(c) The comment, though it can include inferences of fact, must be cognizable as comment.

(d) The comment must satisfy the following objective test: could any person honestly express that opinion on proved facts?

(e) Even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice [Grant v. Torstar, at para. 31; Bernstein v. Poon, 2015 ONSC 155, at para. 103].

150. Any concern as to the applicability of the defence requires consideration of whether the words of concern are comment and whether, as comment, they are supported by facts. “The comment must be an expression of opinion on a known set of facts, and the audience must be in a position to assess or evaluate the comment” Mainstream Canada v. Staniford, 2013 BCCA 341, at para. 24]. …

151. In this context, what is comment? The Supreme Court of Canada adopted a view expressed by the Court of Appeal of New Brunswick:

“… “comment” includes a “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof”. [Simpson v. Mair, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 26, referring to Ross v. N.B.T.A., 2001 NBCA 62, at para. 56.]

152. And went on to cite a well-known text in furtherance of a more refined understanding:

Brown’s The Law of Defamation in Canada (2^nd ed. (loose-leaf)) cites ample authority for the proposition that words that may appear to be statements of fact may, in pith and substance, be properly construed as comment. This is particularly so in an editorial context where loose, figurative and hyperbolic language is used (Brown, vol. 4, at p. 27-317) in the context of political debate, commentary, media campaigns and public discourse.

156. To support “comment” it is required that the factual foundation is properly

disclosed, sufficiently indicated or so notorious as to already be understood by the audience [Bernstein v. Poon, at para. 115 referring to Simpson v. Mair, at para. 131]:

What is important is that the facts be sufficiently stated or otherwise be known to the listeners that listeners are able to make up their own minds on the merits of [the] comment [Mainstream Canada v. Staniford, at para. 25 quoting from Simpson v. Mair, at para. 31].

[87] I am satisfied that there are grounds to believe that fair comment does not provide a valid defence because the statements in dispute that were written by Mr. Festeryga are not comment and are not cognizable as comment.

[88] No dispute or claim is made with respect to Mr. Festeryga’s commentary as to the import of the decision on procedure, settlements, or the duty of good faith. The defamatory words here arise from his direct assertion that plaintiffs’ counsel made false and misleading statements at the pretrial conference – that Mr. Greenaway lied.

[89] Mr. Murtha submits that at the time the article was written and published, the “facts” stated by Mr. Festeryga were proven facts; a court had accepted those facts. Saying that plaintiff’s counsel [Mr. Greenaway] made false and misleading representations about the Eftimovs was supported by the findings of Justice Heeney in his decision.

[90] I agree that Mr. Festeryga’s characterization of the statements made by Mr. Greenaway were adopted by Justice Heeney in his decision. I disagree that that makes those statements accurate or factual.

[91] Mr. Festeryga knew when he wrote and submitted the article that there was a pending appeal. He knew that Mr. Greenaway disputed that there was any misrepresentation at the pretrial. He did not confine himself to saying, for example, “this is what Mr. Greenaway said at the pretrial … and this is what Justice Heeney found…”. Instead, he wrote of his involvement and provided his own account of what had occurred at the pretrial. In doing so, he mischaracterized and misstated the facts as is clear from the decision of the Court of Appeal.

[92] Thus, I am satisfied that fair comment is not a tenable/valid defence available in this case.

Malice/Exceeded Limits of the Duty

[93] I turn now to whether there are grounds to believe that the plaintiff will rebut the presumption of bona fides by showing that there was malice or other improper motive which would negate the availability of qualified privilege as a defence.

[94] The privilege attached to the occasion may be defeated if the dominant motive for publishing the statement is actual or express malice: Hill, at para. 144. It may also be defeated where the limits of the duty or interest are exceeded: Hill, at para. 146.

[95] Malice in the context of a defamation action includes any form of improper motive for speaking or writing the words complained of and is not limited to but may include knowledge that the statement was false or that it was published reckless as to its truth or falsity: Grant v. Cormier- Grant, 2001 CanLII 3041 (ON CA), [2001] O.J. No. 3851 (Ont. C.A.), at para. 11; Hill, at para. 145. In most cases, there is rarely direct evidence of malice, but malice can be inferred from extrinsic evidence.

[96] The plaintiff submits that there is evidence from which an inference of malice could and should be drawn. He points to the tenor of the article, the histrionic and hyperbolic language used, the failure to inform the reader of the pending appeal, the failure to alert the reader to the positions taken by Mr. Greenaway on the r. 49 motion which were being reiterated in the appeal, and the failure to soften the language used to reflect Justice Heeney’s subsequent characterization of Mr. Greenaway’s conduct as “overzealous”. The defendant was reckless as to the truth or falsity of the facts stated.

[97] The plaintiff relies on the decision in Hill v. Church of Scientology of Toronto. In Hill, a lawyer acting for the Church of Scientology held a press conference on the steps of the courthouse. He read from and commented on allegations contained in a notice of motion in which Scientology was alleging that the Crown Attorney (Mr. Hill) had misled the judge and breached orders sealing certain documents belonging to Scientology. The motion was for a contempt order and sought the imposition of a fine or imprisonment. The contempt motion was dismissed, and the allegations made were rejected as untrue and without foundation. Mr. Hill then sued for libel.

[98] At paras. 155 and 156 in Hill, Cory J. wrote:

[155] …, it is my conclusion that Morris Manning’s conduct far exceeded the legitimate purposes of the occasion. The circumstances of this case called for great restraint in the communication of information concerning the proceedings launched against Casey Hill. As an experienced lawyer, Manning ought to have taken steps to confirm the allegations that were being made. This is particularly true since he should have been aware of the Scientology investigation pertaining to access to the sealed documents. In those circumstances he was duty bound to wait until the investigation was completed before launching such a serious attack on Hill’s professional integrity. Manning failed to take either of these reasonable steps. As a result of this failure, the permissible scope of his comments was limited and the qualified privilege which attached to his remarks was defeated.

[156] The press conference was held on the steps of Osgoode Hall in the presence of representatives from several media organizations. This constituted the widest possible dissemination of grievous allegations of professional misconduct that were yet to be tested in a court of law. His comments were made in language that portrayed Hill in the worst possible light. This was neither necessary nor appropriate in the existing circumstances. While it is not necessary to characterize Manning's conduct as amounting to actual malice, it was certainly highhanded and careless. It exceeded any legitimate purpose the press conference may have served. His conduct, therefore, defeated the qualified privilege that attached to the occasion.

[99] The plaintiff submits that Mr. Festeryga’s article, written and published as and when it was and to the audience it had, went beyond the scope of the occasion or interest that gives rise to the privilege. He analogizes Mr. Festeryga’s conduct to that of Mr. Manning in Hill and argues that Mr. Festeryga was either reckless as to the truth of what he wrote, or he went too far in bringing the decision to the attention of the readers by use of inaccurate and inflammatory language. Knowing that there was an appeal, he was reckless as to the truth or accuracy of the allegations against Mr. Greenaway.

[100] The plaintiff also testified in his cross-examination to a conversation between the parties earlier in the motor vehicle accident action in which he suggested to Mr. Festeryga that if the plaintiff recovered more than the policy limits, the insured could sue the insurer for bad faith and the insurer could sue Mr. Festeryga in turn. There was correspondence to that effect. Mr. Greenaway testified that Mr. Festeryga appeared upset by his comments. Mr. Greenaway also made vague reference to perhaps some lingering animosity from their years together as partners, but his testimony on that point was uncertain and speculative.

[101] Plaintiff’s counsel points to this evidence to bolster the assertion that the article was written as it was because of lingering anger or spite on the part of Mr. Festeryga. This provides further evidence to support a finding of or grounds to believe that the predominant purpose of the article was malice.

[102] For his part, Mr. Festeryga disputes any malice. He points to the fact that he did not specifically name Mr. Greenaway in the article. Had he been motivated by malice or anger at Mr. Greenaway, he would have done so.

[103] In his cross-examination, Mr. Festeryga testified that he was the victim of and embarrassed by Mr. Greenaway’s loud insulting public comments about his weight in the Windsor Courthouse. He testified that Mr. Greenaway called him a “fat coward” in the atrium of the Windsor Courthouse in the presence of a judge and Mr. Festeryga’s wife. Could that incident have factored into the article written and the defamatory words used?

[104] Mr. Colautti for the plaintiff submits that I may exercise my discretion under r. 20 to conduct a mini-trial focused on the issue of malice if the evidence before me is insufficient or I feel that it requires oral testimony to assess credibility on the issue of malice. This submission was made in the context of argument of the motion for summary judgment.

[105] Mr. Murtha submits that if there is a genuine issue requiring a trial, even a mini-trial only on the issue of whether malice or improper motive exists, then there is a valid defence and the motion to dismiss under s. 137.1 succeeds. On the summary judgment motion, he takes the position that there is no evidence of malice or, at a minimum, it is not an issue that can or should be determined except through viva voce testimony with a full evidentiary record at trial.

[106] In McDonald v. Freedman, 2013 ONSC 6812 (Div. Ct.), the Divisional Court upheld the motion judge’s dismissal of a summary judgment motion in a defamation action. At para. 68, the court wrote:

[68] The issue of malice involves the Appellant’s mental state and, accordingly, necessarily raises an issue that cannot be dealt with adequately on a paper record but requires oral testimony and cross-examination for a proper determination. The admonition of the Court of Appeal cited above is also apposite in respect of the factual issue of malice. We note that, in Baglow [Baglow v. Smith, 2012 ONCA 407] at para. 31, the Court of Appeal reached a similar conclusion with respect to the determination of malice, stating that the issue of malice (in that case in relation to the defence of fair comment) required “a delicate balancing of the factual context in its entirety for determination”. …

[107] I start with whether the limits of the duty were exceeded thereby negating the privilege.

[108] The facts in Hill are distinguishable and far more egregious than here. I note the following:

1. unlike Hill, there was no press conference before multiple media outlets on the courthouse steps. This was an article published in a single magazine;

2. the press conference in Hill was held before the allegations of malfeasance had been tested in court. Here, the article was written after the r. 49 motion was argued and the release of Justice Heeney’s decision;

3. the article draws attention to a recent court decision that arguably expanded the application of the doctrine of good faith and placed limits on how far counsel could go in comments made at a judicial pretrial with respect to the quality and independence of witnesses. It was a significant decision; and

4. although written with self-promotion evident and in an unfortunate literary style, the primary focus of the article was on the decision and its import. It was not a specifically targeted attack on Mr. Greenaway as was done in Hill.

[109] I do not agree that the circumstances here tilt in favour of the plaintiff such that I have grounds to believe that the defence of qualified privilege is negated because Mr. Festeryga exceeded the limits of the occasion for which the privilege arises.

[110] I agree that it would have been prudent for Mr. Festeryga to alert the readers to the pending appeal. That he did not does not equate to recklessness or, at least, it does not necessarily do so.

[111] Likewise, I am not satisfied that I have grounds to believe that the privilege is negated because of malice. Was the predominant purpose of the article to report on the decision made or to harm the plaintiff? Did he include the defamatory words in the article for that purpose? On its face and on the evidentiary record before me, I cannot say that there is no valid defence because the defence of qualified privilege is not tenable in law or fact in this case.

[112] Put another way, on the motion for summary judgment where the test is higher than that of grounds to believe, I would not find that there is no triable issue with respect to malice. To the contrary, there is a genuine issue requiring a trial – whether the defence of qualified privilege is negated by malice. I would not draw the inference that plaintiff’s counsel urges me to make on the evidentiary record before me. Such a determination is not possible on the evidence on the motions. It is entirely possible that the defendant would succeed on lack of malice and, therefore, has a valid defence to the action – qualified privilege.

[113] In summary, there are grounds to believe that there is substantial merit to the plaintiff’s claim for defamation; however, I am not satisfied that the plaintiff has established that there are grounds to believe that the defendant has no valid defence. The defence of qualified privilege is engaged on the facts and law. Whether that defence is negated by malice is questionable such that I cannot say that the defence of qualified privilege is not legally tenable or supported by evidence that is reasonably capable of belief such that it can be said to have no real prospect of success.

[114] The plaintiff has not satisfied his burden under s. 137.1(4)(a)(ii).

[115] Accordingly, it is unnecessary to consider s. 137.1(4)(b) and the public interest hurdle. I observe, however, that I am convinced that the action brought by Mr. Greenaway was to vindicate his professional reputation, not to suppress free speech or the publication of the outcome of the motion before Heeney J.. He did not sue the other publications that reported on the decision presumably because they did not allege that he had lied at the pretrial or was a cheat. They reported the decision only and provided no first-person narrative of the events.

[116] The action brought by Mr. Greenaway did not and does not unduly limit expression on matters of public interest. It is not an action that is merely technically meritorious. If I am wrong in my analysis of the “no valid defence” requirement above, I am satisfied that the public interest in vindicating a meritorious claim outweighs the public interest in freedom of expression and public participation in this case.

[117] Mr. Festeryga could have and should have simply reported on the decision made. Instead of inserting himself into the story and suggesting there was so much more to be told, he could simply have set out the findings made by Justice Heeney and referred to them as such. He could have mitigated the professional damage to Mr. Greenaway by advising the reader of the pending appeal. I do not fault his decision to write an article about the decision, but I do have significant concerns with what he wrote and how he wrote it.

[118] For the reasons stated, the defendant’s motion for dismissal of the action under s. 137.1 is granted and the action is dismissed.

[119] As indicated above, I would not have granted the motion for summary judgment at this stage. In my view, there is a triable issue with respect to the defence of qualified privilege; specifically, whether the defence is negated by the defendant’s conduct and/or malice. That is an issue that may be capable of determination using the powers in r. 20.04(2.1) after a mini-trial held under r. 20.04(2.2).

[120] If the parties cannot agree on costs, they may make written submissions not exceeding 3 pages within 15 days hereof.

Justice R. Raikes

Date: May 31, 2022