COURT FILE NO.: CV-20-650518
DATE: 20220712
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stylianos Papatheodosiou
Plaintiff
– and –
Angela Varone
Defendant
Gary S. Farb for the plaintiff
David A. Gourlay and Amy Tieu for the defendant
HEARD: June 23, 2022
Robert CentA J.
[1] Stylianos Papatheodosiou commenced a defamation action against Angela Varone for things she said at the annual general meeting of a local business improvement area (“BIA”). Ms. Varone brought a motion under section 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to dismiss the proceeding.[^1]
[2] The purpose of s. 137.1 is to screen out lawsuits that unduly limit expression on matters of public interest through the identification and pre-trial dismissal of such actions. Even if I was satisfied that there were grounds to believe that this proceeding had substantial merit, which I doubt, I find that the public interest in protecting the expression that gave rise to this proceeding outweighs any public interest in allowing the proceeding to continue.
[3] For the reasons that follow, I grant the defendant’s motion and order that the proceeding be dismissed.
Background
[4] In early 2015, the Toronto and East York Community Council (“TEYCC”) appointed the plaintiff to the board of management for the Wychwood Heights BIA for a term expiring at the end of the term of the Toronto City council. The City’s Public Appointments Policy provides that all board members for each BIA are appointed at the pleasure of a community council and can be replaced at any time and for any reason.
[5] On January 19, 2016, TEYCC voted unanimously to remove the plaintiff from the board for the Wychwood Heights BIA. On January 25, 2016, Ward 21 Councillor Joe Mihevc, wrote to the members of the Wychwood Heights BIA to advise that he moved the motion for the removal of the plaintiff. Councillor Mihevc stated that “[o]ver the past year this Board has become dysfunctional and has not been able to operate to its fullest potential. I can assure you that my recommendation to TEYCC was made in good faith and in the best interests of the BIA, I did what I needed to do.”
[6] On May 24, 2016, Valerie Jepson, the Integrity Commissioner for the City of Toronto, released an investigation report regarding the conduct of the plaintiff during his time on the board for the Wychwood Heights BIA. The report related to a complaint filed on January 4, 2016, by a former staff member of the Wychwood Heights BIA. Ms. Jepson concluded:
In this case, the [plaintiff’s] e-mail contained a threat to the Complainant, a board staff member, which on its face is a prohibited form of bullying or intimidation. The [plaintiff] has not attempted to justify the language used as mere rudeness or perhaps an unintentional, momentary loss of composure.
Article XIV creates a basic standard for members’ conduct: it is never appropriate for elected and appointed city officials to threaten or intimidate each other, members of the public, or staff. In this case, as it is undisputed that the [plaintiff] expressly chose language to threaten the complainant and coerce her to comply with the [plaintiff’s] request, I find that the [plaintiff’s] e-mail contravenes the prohibition against intimidation and bullying contained in Article XIV of the Code of Conduct.
The Code of Conduct and the City of Toronto Act, 2006 contemplate that contraventions may require remedial actions or sanctions. In this case, however, the [plaintiff] is no longer a member of the Board and the issue of penalty or remedial action is therefore moot.
I therefore recommend that the Wychwood Heights Business Improvement Area Board of Management adopt a finding that the plaintiff contravened Article XIV (Discreditable Conduct) of the Code of Conduct.
[7] On May 27, 2016, Ms. Jepson presented and explained her report to the board for the Wychwood Heights BIA, which voted to receive her report on June 10, 2016.
[8] On January 27, 2020, almost four years to the day that TEYCC voted unanimously to remove the plaintiff from the board, the plaintiff attended the annual general meeting of the Wychwood Heights BIA.
[9] The defendant also attended that meeting. She attended because it was her job to do so. She was an economic partnership advisor in the BIA Office for the City of Toronto from 2003 until her retirement on July 31, 2020. Her job included providing support to the boards of the 11 to 14 BIAs in her portfolio. It was her job to ensure that each BIA complied with the applicable rules and requirements including the City's by-laws and Chapter 19 of the Toronto Municipal Code.
[10] During the meeting, and despite the matter not being on the published agenda for the annual general meeting, the plaintiff nominated another person in attendance to fill a vacancy on the board. That person declined the opportunity. The plaintiff then nominated himself for a position on the board. The parties now agree that, at the moment he nominated himself, the plaintiff was not eligible to serve on the board. He did not own property or a business within the geographic area of the Wychwood Heights BIA. He did not hold a representation agreement from an eligible business. At most, he was an officer of a private corporation that owned property in the eligible area. That was not sufficient to make him eligible to serve on the board.
[11] The defendant walked to the front of the room and raised an issue regarding the eligibility of the plaintiff to serve on the board. The plaintiff and the defendant exchanged further words and the meeting adjourned.
[12] Subsequently, the plaintiff sued the defendant for what she said during the annual general meeting. The defendant brought this motion to have the action dismissed under section 137.1 of the Courts of Justice Act.[^2]
Section 137.1 of the Courts of Justice Act
[13] In 2015, Ontario amended the Courts of Justice Act by introducing sections 137.1 to 137.5. These provisions aimed to reduce the harmful effects of strategic lawsuits against public participation. The legislature set out the purposes of the provision in the legislation itself:
137.1(1) The purposes of this section and sections 137.2 to 137.5 are,
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.
[14] My interpretation of the provision would always be informed by its purpose. However, where the legislature has explicitly described the purpose of the provision, I should pay particular attention to it.
[15] Section 137.1 places an initial burden on a defendant to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. If the defendant meets that burden, the burden then shifts to the plaintiff to satisfy the judge that there are grounds to believe the preceding has substantial merit, that the defendant 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 plaintiff cannot satisfy the judge that it has met its burden, then the motion will be granted and the underlying proceeding will be dismissed: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, at para. 18.
This proceeding arises from a communication by the defendant that relates to a matter of public interest
[16] The first step in this motion is described in s. 137.1(3) of the Courts of Justice Act. For ease of reading, I have specified that the “person” referred to in the provision is, in this case, the defendant. The relevant provisions are as follows:
137.1(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 motion by a [defendant], a judge shall, subject to subsection (4), dismiss the proceeding against the [defendant] if the [defendant] satisfies the judge that the proceeding arises from an expression made by the [defendant] that relates to a matter of public interest.
[17] The defendant has satisfied me on a balance of probabilities that this proceeding arises from her communications related to a matter of public interest.
What did the defendant say during the meeting?
[18] The statement of claim in this proceeding seeks over $100,000. In paragraph 4 of the statement of claim, the plaintiff pleads that:
On January 27, 2020, [the defendant], during an AGM of the Wychwood Heights BIA, interrupted the meeting and made slanderous remarks about the Plaintiff. She had not been a part of the current discussion, and made a point to interrupt and make these statements. When the Plaintiff attempted to respond to her slanderous statements, [the defendant] began speaking above him until the Chair was forced to adjourn the meeting. In response to [the plaintiff’s] request to be nominated to the Board, the slanderous statements were variations of the following:
“I have to check when I get back to the office whether [the plaintiff] can join the Board. He was removed by the Integrity Commissioner for abusive conduct and may not be eligible.”
[19] In the plaintiff’s response to a demand for particulars, he added one additional statement that he alleged the defendant said before the statement described above. He asserted that the defendant also said, “This request cannot be addressed today. It has to be brought up at a Board meeting for discussion.”
[20] The parties do not agree on what the defendant said at the AGM. The defendant’s evidence is that she said that the appointment of board members was not on the agenda for that meeting and it would have to be placed on the agenda. The defendant says she told the board that the item should be deferred to the next board meeting and that it was up to the board to decide if it wanted to fill the vacancies and asked the board Chair to provide the date of the next meeting. Most importantly, the defendant denies saying that the plaintiff was “removed by the Integrity Commissioner for abusive conduct and may not be eligible.” Her evidence is that she said that Council had removed the plaintiff and that there was a report of the Integrity Commissioner regarding the plaintiff and the Code of Conduct.
[21] Unfortunately, there is no recording or transcript of what was said at the meeting. In his factum, the plaintiff attempted to bolster the credibility of his version of events by referring to will-say statements apparently provided to him by two witnesses. Those will-say statements were not included in the material before me. In any event, a will-say statement is hearsay and would not be admissible for the truth of its contents: Robertson (Re), 2021 ONCA 737, at para. 11; R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326. I find that the content of the will-says is not admissible before me.
[22] I agree with the defendant that her version of what she said makes more sense than the plaintiff’s version. It does not make sense to me that she would have said that the matter had to be brought up at a board meeting, because that was not the process to be followed and did not match her core concern: that the matter needed to be on the agenda to provide notice to all the members of the BIA that there was an opening on the board and they could consider applying to join the board. Similarly, I accept that the defendant knew both that the Integrity Commissioner did not have the power to remove a board member and that the plaintiff had been removed by the TEYCC, not the Integrity Commissioner.
[23] The trial judge would have to make a finding of fact about what exactly the defendant said during the meeting. On this s. 137.1 motion, I have the benefit of the affidavit evidence and out of court cross-examinations, but I have not seen the witnesses testify. The Supreme Court of Canada has held that a motion judge deciding a s. 137.1 motion should engage only in 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 are broader and pleadings more fully developed: Pointes, at para. 52.
[24] I am, therefore, reluctant to make a final determination on what was said during the meeting. In this case, it is unnecessary to exercise my limited powers to weigh the evidence and assess credibility because, even accepting the plaintiff’s version of what the defendant said, I would grant the defendant’s motion to dismiss this proceeding. For the purposes of this motion, therefore, I will accept the plaintiff’s version of what the defendant said.
The proceeding arises from the defendant’s communications
[25] The statement of claim does not plead any other conduct by the defendant that gives rise to damages. The entire claim is cast as one in defamation; more particularly, in slander. The statements made by the defendant at the AGM were verbal communications made to and in front of other people. They are captured by the statutory definition of expression. I find that this proceeding arises from communications made by the defendant.
The defendant’s communications related to a matter of public interest
[26] The defendant must also satisfy me that her communications related to a matter of public interest. I am to give the words “relates to a matter of public interest” a broad and liberal interpretation that is consistent with the legislative purpose of s. 137.1(3). I am to assess the expression as a whole and ask whether some segment of the community would have a genuine interest in receiving information on the subject. At this stage, there is no qualitative evaluation of the expression. It is not relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest: Pointes, at paras. 26 to 28.
[27] The plaintiff submits that the defendant had not met this burden. The plaintiff submitted that this was a “private dispute with no real impact on others that are public interest matters.” The plaintiff submitted that the defendant was not providing services to the public. Instead, he submits, the defendant was providing specialized services to a few business persons. I disagree and find that the defendant met her burden to prove on the balance of probabilities that her communications related to a matter of public interest.
[28] The defendant’s comments were made at an AGM for the Wychwood Heights BIA. The public purpose of the BIA, its close nexus to city council, its democratic structure, and its commitment to openness all demonstrate why the defendant’s comments related to a matter of public interest.
[29] Section 125 of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, continued the City of Toronto as a body corporate that is composed of the inhabitants of its geographic area. The powers of the City of Toronto are to be exercised by city council through by-laws. The City of Toronto Municipal Code is a compilation of by-laws organized by subject. Each chapter of the Toronto Municipal Code is a by-law.
[30] Chapter 19 of the Toronto Municipal Code is titled “Business Improvement Areas.” Chapter 19 sets out the procedures for the adoption by the city council of a designating by-law and the establishment and operation of the boards for the BIAs. The Wychwood Heights BIA is listed as one of the boards to which Chapter 19 applies.
[31] Chapter 19 specifies that the purposes of a BIA board include to oversee the improvement, beautification and maintenance of municipally owned land, buildings and structures in the BIA beyond standard levels provided at the expense of the municipality generally and to maintain and promote the BIA as a business, employment, tourist, or shopping area.
[32] Article 3 of chapter 19 provides that a board shall be established for each BIA designated by a by-law. Under Article 3, “a board is a city board and is an agent of the city for the purposes set out in this chapter.”
[33] Article 3 provides for the appointment of directors. It states that “the directors of a board shall be appointed under delegated authority by the community council within whose geographic area the business improvement area is located.” Directors are appointed at the pleasure of city council or the community council under delegated authority. City council or the community council may refuse to appoint an individual selected by the members of a BIA to a board. City council or the community council retains the right to remove any appointed director at any time, for any reason, and may make the director ineligible to serve on a board for a period of up to four years.
[34] Each director and the board are required to operate in compliance with all applicable laws and City of Toronto policies including, but not limited to the City of Toronto Act, 2006, the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50, and the City of Toronto Code of Conduct for Members of Local Boards.
[35] Article 3 covers the process for declaring and filling board vacancies. It addresses the process for meetings, quorum of the board, the annual general meeting, and the financial requirements of the board. The board is entitled to set an annual budget and, once that budget is approved by the city council, the City of Toronto raises the funds required through a mandatory levy on BIA members.
[36] The Wychwood Heights BIA adopted a procedural By-Law in accordance with the provisions of Chapter 19 of the Toronto Municipal Code. Subsection 5(7) and section 16 of the By-Law stated that, except as provided in section 190 of the City of Toronto Act, 2006, all meetings shall be open to the public. Filling a board vacancy would not fall within the narrow exemptions from the rule requiring open public meetings.
[37] Considered within that context, I find that the defendant met her burden to demonstrate that her comments related to a matter of public interest. Her comments were about the eligibility of a potential candidate to sit on a local board of the City of Toronto. The discussion took place at an annual general meeting that was required under a by-law to take place in public and on notice to its members. The potential candidate would have to be approved by the members of city council sitting on the TEYCC and would serve at their pleasure. If approved, that board member would be able to set a budget that would be spent on public purposes using revenue levied by the City of Toronto on all businesses in the geographic area of the BIA. I have no doubt that the defendant’s comments about the plaintiff’s eligibility to sit on the board related to a matter of public interest.
[38] Having met her burden, s. 137.1(4) is triggered and the burden shifts to the plaintiff to demonstrate that his action should not be dismissed.
The proceeding does not meet the merits-based hurdles
[39] The next step in a motion under s. 137.1 is described in s. 137.1(4)(a) of the Courts of Justice Act. The relevant provisions are as follows:
(4) A judge shall not dismiss a proceeding under subsection (3) if the [plaintiff] satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the [defendant] has no valid defence in the proceeding,
[40] The legislature has established the standard the respondent must meet in this phase of the test: grounds to believe. This standard is something more than suspicion, but less than proof on a balance of probabilities: Pointes, at para. 40. Bearing in mind that this motion is taking place at an early stage in the proceeding, the plaintiff must establish that there is a basis in fact and law to find that the proceeding has substantial merit and that the defendant has no valid defence.
There are no reasonable grounds to believe this proceeding has substantial merit
[41] For this proceeding to have substantial merit, it must have a real prospect of success. A claim with merely some chance of success will not meet this part of the test. There must be a basis in the record and law to conclude that there are grounds to believe the claim is legally tenable and supported by evidence that is reasonably capable of belief: Pointes, at para. 49.
[42] Even accepting the plaintiff’s version of what the defendant said during the meeting, I doubt that this proceeding has substantial merit.
[43] The plaintiff seeks damages for slander, a species of defamation. In Bent v. Platnick, 2020 SCC 23, at para. 92, the Supreme Court of Canada held that a defamation claim must meet an initial three-part test:
a. The words complained of were communicated to at least one person other than the plaintiff;
b. The words complained of refer to the plaintiff; and
c. The words complained of would tend to lower the reputation of the plaintiff in the eyes of a reasonable person.
[44] I find that there are reasonable grounds to believe that the plaintiff’s claim is legally tenable and supported by evidence that is reasonably capable of belief. The defendant spoke about the plaintiff at a public meeting attended by more than one person. The defendant was clearly referring to the plaintiff. Even if she did not use his name, all of the circumstances and context made clear about whom she was speaking. Finally, there are reasonable grounds to believe that when the defendant said that the plaintiff “was removed by the Integrity Commissioner for abusive conduct and may not be eligible,” those words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person. Here, there is a “realistic threat that the statement, in its full context, would reduce a reasonable person’s opinion of the plaintiff”: WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 78. Further, the “plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability”: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.
[45] However, although I am satisfied that the plaintiff’s claim has “technical validity,” the plaintiff must go further and demonstrate that the underlying proceeding has substantial merit. See Pointes, at paras. 9, 16, and 47. I doubt that this proceeding has substantial merit.
[46] First, in an action for slander, the plaintiff must prove special damages: Grant, at para. 28; Romano v. D'Onofrio (2004), 2004 45963 (ON SC), 246 D.L.R. (4th) 720 (Ont. S.C.), at paras. 24, 35-36, rev’d on other grounds (2005), 2005 43288 (ON CA), 77 O.R. (3d) 583 (C.A.). Unlike in an action for libel, actual pecuniary damage or loss is not presumed in an action for slander. The plaintiff did not seek to rely on the exception to this rule contained in s. 16 of the Libel and Slander Act, R.S.O. 1990, c. L.12, and he did not assert that the words spoken were slander, per se.
[47] Although the statement of claim requested $50,000 in special damages, the plaintiff did not plead any facts in the statement of claim that would support that claim. In addition, the plaintiff’s affidavit did not contain any evidence that would support a finding that he suffered special damages. This causes me to doubt that this proceeding has substantial merit.
[48] I am not, however, prepared to dismiss the action on this basis. I note that there is very little, if any, evidence supporting an inference that the plaintiff has been harmed by the defendant’s speech. This factor will be of particular importance when I weigh the harm likely to have been caused to the plaintiff by the defendant’s expression against the public interest in protecting the defendant’s expression.
There are reasonable grounds to believe that the defendant has valid defences
[49] In her statement of defence, the defendant pleads that she is protected by the statutory immunity conferred on employees of the City of Toronto by s. 391 of the City of Toronto Act, 2006. She has also put three more widely available defences in play: qualified privilege, justification, and fair comment.
[50] The plaintiff must now satisfy me that there is a basis in the record and the law to believe that the defendant has no valid defence to the proceeding. The Supreme Court has held that the word “no” in “no valid defences” is absolute: if the plaintiff fails to show grounds to believe that even a single defence is invalid, then the underlying claim should be dismissed: Pointes, at paras. 57-58.
[51] The plaintiff has not met his burden. I find that the plaintiff has not shown that the defences raised by defendant have no real prospect of success. Based on my review of the evidence and the law, the defences appear legally tenable and are supported by evidence that is reasonably capable of belief.
Section 391 of the City of Toronto Act, 2006
[52] Section 391 of the City of Toronto Act, 2006 provides that no proceeding for damages or otherwise shall be commenced against a member of city council or an employee for any act done in good faith in the performance or intended performance of a duty. The provision states:
391(1) No proceeding for damages or otherwise shall be commenced against a member of city council, an officer, employee or agent of the City or a person acting under the instructions of the officer, employee or agent for any act done in good faith in the performance or intended performance of a duty or authority under this Act or a by-law passed under it or for any alleged neglect or default in the performance in good faith of the duty or authority.
[53] Two recent decisions have found that a plaintiff failed to demonstrate that a defendant had no valid defence under section 391: Hotspot Auto Parts v. Thompson, 2022 ONSC 3637, and Volpe v. Wong-Tam, 2022 ONSC 3106. In those cases, the defendants relying on s. 391 were members of city council. However, the text of the provision is clear that the defence is equally available to employees of the City of Toronto.
[54] Based on the evidence before me, I am satisfied that the defendant was an employee of the City of Toronto at the time of the incident. Her duties under the City of Toronto Act, 2006, and its By-Laws, including Chapter 19 of the Toronto Municipal Code included attending at and participating in the AGM of the Wychwood Heights BIA. She was responsible for advising boards on issues with respect to notice requirements and the nomination process for new board members. I am satisfied she made her comments in the performance or intended performance of her duties.
[55] The plaintiff submits that the defendant did not make the comments in good faith. In support of this submission, the plaintiff submits that the defendant’s statements about him were inaccurate and that she did not correct her mistake. Instead, the plaintiff submits, the defendant “simply digs in her heels and creates friction and resentment because she is not going to be corrected.” I disagree.
[56] In Sampogna v. Smithies, 2012 ONSC 610, at para. 16, Justice McEwen considered the meaning of good faith in s. 391 of the City of Toronto Act, 2006. He explained:
Actions are carried out in good faith if they are not founded upon fraud, oppression or improper motives. The presence of good faith is established by the absence of bad faith. In any case, the onus is upon those alleging it to establish a charge of improper conduct: see Exeter (Town) v. Huron (County), [1990] O.J. No. 240.
[57] The defendant’s evidence is that she spoke up at the AGM because she believed she had an obligation to provide her advice, that it was standard practice to advise that nominations should be on the agenda, and that she had provided such advice on prior occasions. She stated that she was not trying to prevent the plaintiff from being nominated to the board and that she was not trying to harm him. The defendant’s evidence on this point was firm and unshaken on cross-examination.
[58] On the same day as the meeting, the defendant sent an email to her supervisor recounting what happened at the AGM. In her email, she stated that she had researched the issue after the meeting and concluded that, since four years had passed, the fact that TEYCC had removed the plaintiff from the board was not an impediment to him standing for election. She passed that information along to her supervisor, told him that she would be on vacation during the next board meeting, and that the office should have another employee attend the meeting in case the board needed support on this question.
[59] I agree with the plaintiff that the defendant could have sent an email message to the plaintiff or the members of the board to provide the correct information. I disagree, however, that the failure to do so is any evidence of her malice toward him. It appears to me that the defendant passed the correct information along to her supervisor with the intention that another employee attend the next board meeting with the benefit of her research. Her actions do not demonstrate bad faith.
[60] In addition, counsel for the defendant offered to consider issuing a statement to all meeting attendees confirming the relevant facts of the situation. The plaintiff did not pursue this offer.
[61] Having reviewed the record carefully, I see no evidence that the defendant acted upon fraud, oppression, or improper motives. There is no evidence that she used her position improperly or engaged in deliberate conduct intended to cause harm to the plaintiff. I see no grounds to believe that the defendant acted in bad faith.
[62] I do not find reasonable grounds to believe that the defendant would not have a valid defence under s. 391 of the City of Toronto Act, 2006 because she acted in bad faith. The plaintiff has not met his burden to show that the plaintiff’s defence under s. 391 of the City of Toronto Act, 2006 has no reasonable prospect of success.
Qualified privilege
[63] The defendant relies on the defence of qualified privilege. The Court of Appeal for Ontario summarized the basic principles surrounding the defence of qualified privilege in Foulidis v. Baker, 2014 ONCA 529, 323 O.A.C. 258:
[40] First, qualified privilege attaches to the occasion on which a communication was made, not to the communication itself: Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, at para. 143; RTC Engineering Consultants Ltd. v. Ontario (Ministry of the Solicitor General & Correctional Services-Office of Fire Marshall) (2002), 2002 14179 (ON CA), 58 O.R. (3d) 726 (C.A.), at para. 14; and Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3, at para. 78.
[41] Second, on an occasion of qualified privilege, one person may defame another without attracting liability for defamation. The law presumes that the defamatory statement was made honestly and in good faith: RTC Engineering, at para. 14. Said somewhat differently, the legal effect of the defence of qualified privilege is to rebut the inference, one that naturally emerges from the publication of defamatory words, that they were spoken with malice: Hill, at para. 144.
[42] Third, as the term “qualified privilege” would itself suggest, the privilege is not absolute: RTC Engineering, at para. 18.
[43] Fourth, qualified privilege may be defeated when the information communicated in the statement is not reasonably appropriate in the context of the circumstances existing on the occasion when the information was given: Hill, at paras. 146-147; RTC Engineering, at para. 18; Botiuk, at para. 80; and Douglas v. Tucker, 1951 54 (SCC), [1952] 1 S.C.R. 275, at p. 286.
[64] Courts have routinely held that municipal council and committee meetings are occasions protected by qualified privilege: Prud'homme v. Prud'homme, 2002 SCC 85, [2002] 4 S.C.R. 663; Gutowski v. Clayton, 2014 ONCA 921, 124 O.R. (3d) 185. Qualified privilege is not limited to meetings of City council. The defence also protects statements made in a much broader set of circumstances:
a. public statements made by school board trustees that were made in the public interest: Lane v. Nanaimo-Ladysmith School District No. 68, 2006 BCSC 129, 47 C.C.E.L. (3d) 219, at para. 87;
b. statements by elected representatives to the media: Stopforth v. Goyer (1979), 1979 1661 (ON CA), 23 O.R. (2d) 696 (C.A.); Parlett v. Robinson, 1986 929 (B.C.C.A.); and
c. a citizen’s memo about a City of Hamilton employee that was delivered to the head of the City’s human resources department was found to raise a valid defence of qualified privilege for a s. 137.1 motion: Lemire v. Burley, 2021 ONSC 5036, at paras. 100 to 103.
[65] When assessing whether or not an occasion is one protected by qualified privilege, the court will consider if the words spoken were “fairly warranted” and that there was a mutuality of interest or duty on the person to publish the statement and the recipient to receive it.
[66] I find that there are no grounds to believe that the defendant was not under a duty to make the statements and for the recipients to receive the statements. As set out above in the discussion of the s. 391 defence, it was the defendant’s job to attend the annual general meetings of the BIAs for which she was responsible and to provide the type of advice that is in issue in this proceeding. I also find that the board members and attendees at the annual general meeting had a duty to receive that information to determine both whether board vacancies could be filled without notice and if the plaintiff was eligible to stand for the board. In this case, the defendant communicated appropriate information to appropriate people: RTC Engineering Consultants Ltd. v. Ontario (2002), 2002 14179 (ON CA), 58 O.R. (3d) 726 (C.A.), at para. 18.
[67] The plaintiff submits that the annual general meeting of the Wychwood Heights BIA should not be an occasion of privilege. He submits that the BIA “does not create or implement policies or spend monies which affect the citizens at large and affect lives in our society that would be viewed as life changing.”
[68] I find that the plaintiff has not proven that there are reasonable grounds to believe that the defence of qualified privilege is not valid. The Wychwood Heights BIA is a local board of the City of Toronto, established under Chapter 19 of the Toronto Municipal Code. I will not repeat all of the attributes of a BIA that are set out in paragraphs [28] to [37] above, but I rely on them in concluding that the plaintiff has not demonstrated that the defence of qualified privilege is not valid. BIAs play an important role in local democracy. Their work results in the City of Toronto imposing mandatory levies on local businesses to fund their important work. I do not see anything about the purpose, activities, or structure of a BIA to indicate that its AGM would not be an occasion of qualified privilege. .
[69] The plaintiff submits that the defendant’s statements exceeded the scope of the occasion. I disagree. Even accepting his version of what the defendant said, her remarks were reasonably appropriate given the circumstances, which included that the issue came up without notice and without giving the defendant time to research the issue in any way.
[70] The plaintiff submits that the defendant acted with “resentment and hostility” toward him in 2015 and 2016. He also submits that the defendant disliked him because of his “observations about the defendant’s conduct or errors.” The plaintiff points to the defendant’s “admissions” on cross-examination that she felt the plaintiff “was a bully” and that she did not like bullies and that she “didn’t really like the way he treated myself and others.” Given the Integrity Commissioner’s finding that the plaintiff sent a threatening email to a Wychwood Heights BIA staff member, “which on its face is a prohibited form of bullying or intimidation,” the defendant’s statement on cross-examination does not satisfy me that the plaintiff was motivated by hostility.
[71] Moreover, even if the evidence suggested that the defendant did not like the plaintiff, that alone is far from establishing malice given the significant amount of evidence that the defendant was just doing her job: Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 150. The defendant denied that her motive was to prevent the plaintiff’s nomination at the meeting. There is no evidence in the record to raise reasonable grounds to believe that the dominant motive of the defendant was to injure the plaintiff.
[72] I find that there are no grounds to believe that malice was the dominant motive of the defendant’s comments at the meeting. As set out in paragraphs [57] to [61], I find that there are no grounds to believe that the defendant acted in bad faith. I rely on those findings as well in concluding that there are no reasonable grounds to believe that the defendant’s dominant motive was malice or that the expressions were made with reckless indifference to their truth: Volpe, at paras. 291 to 295; Bent, at paras. 121 and 146.
[73] I do not find reasonable grounds to believe that the defendant would not have a valid defence of qualified privilege. The plaintiff has not met his burden to show that the plaintiff’s defence of qualified privilege has no reasonable prospect of success.
Justification
[74] The defendant asserts the defence of justification. The defence of justification only applies if the defamatory statements are statements of fact, not comments: Volpe, at para. 328.
[75] The plaintiff alleges that the defendant said the following words:
a. “This request cannot be addressed today. It has to be brought up at a Board meeting for discussion.”
b. “I have to check when I get back to the office whether [the plaintiff] can join the Board.”
c. “He was removed by the Integrity Commissioner for abusive conduct and may not be eligible.”
[76] The defence of justification is available if a defendant can prove the truth of the main thrust or “sting” of the defamatory words, and the publication is “substantially” true in the natural and ordinary meaning of the words used: Bent, at para. 107. A defendant need not show the literal truth of the precise statement made, and it is immaterial that there are slight inaccuracies in the details of the expression or with respect to items of secondary importance: Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, loose-leaf, 2nd ed (Toronto: Thomson Reuters, 2016), at 10-1, 10-47 to 10-50, 10-59; DEI Films Ltd. v. Tiwari, 2018 ONSC 4423, at para. 30; Volpe, at paras. 332-33.
[77] The plaintiff submits that the statement “This request cannot be addressed today. It has to be brought up at a Board meeting for discussion” is not true because “the evidence demonstrates that she has no rules to support her rulings: therefore her decisions and ruling have no basis – they cannot now be argued as being ‘true’. ‘True’ according to who? [sic]”.
[78] I disagree. First, the issue of nominations was not on the AGM agenda. I accept the defendant’s evidence that motions arising during a meeting, including nominations to fill vacancies, must pertain to the items on the agenda. Moreover, the evidence is clear that it is important that BIA boards provide notice to their members so that all members can consider whether or not they want to nominate themselves or someone else to fill a board vacancy. Identifying and then filling board vacancies without notice to the membership is a corrosive practice that undermines local democracy and the accountability of the board to its members. Second, it is difficult to see how this statement, which concerns only the meeting’s rules of procedure, is in any way defamatory of the plaintiff. This sentence falls far from the sting of the alleged defamation of the plaintiff. It is an item of secondary importance. Even if the statement is incorrect, it has so little bearing on the substantial truth of the defendant’s key statements that I find that it is not an impediment to the defence of justification.
[79] The plaintiff submits that the sentences “I have to check when I get back to the office whether [the plaintiff] can join the Board. He was removed by the Integrity Commissioner for abusive conduct and may not be eligible” cannot be protected by the defence of justification. He submits that the defendant was incorrect in her statements, that she did not apologize or correct her comments, and that the existence of the Integrity Commissioner’s report was irrelevant.
[80] I disagree. The defendant was correct when she stated that she had to check the plaintiff’s eligibility for the board when she got back to the office. She was not prepared for this issue to come up at the meeting as it was not listed on the agenda. She was uncertain as to whether or not the plaintiff’s removal from the board continued to make him ineligible to serve. This evidence was unshaken on cross-examination. As it happens, although the plaintiff’s removal from the board did not render him ineligible, the fact that he neither owned a business or commercial property within the boundaries of the Wychwood Heights BIA nor held a representation agreement did make him ineligible on that day.
[81] In my view, the defamatory sting is found in the defendant’s second sentence: “He was removed by the Integrity Commissioner for abusive conduct and may not be eligible.” This statement is not strictly accurate. He was removed from the board by TEYCC, not the Integrity Commissioner. The Integrity Commissioner found that the plaintiff contravened Article XIV (Discreditable Conduct) of the Code of Conduct by sending an email to a staff member that contained a threat. The rationale offered by Councillor Mihevc for moving to remove the plaintiff from the BIA was that the “Board has become dysfunctional and has not been able to operate to its fullest potential.” The TEYCC removed the plaintiff from the board before the Integrity Commissioner completed her report, so she did not recommend a further sanction.
[82] However, s. 22 of the Libel and Slander Act provides:
In an action for libel or slander for words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.
[83] It appears to me that any injury to the plaintiff’s reputation was caused by the defendant’s statements that the plaintiff was removed from the board (which was true) and that the Integrity Commissioner found that he had committed abusive conduct (which was true, although the finding was framed as bullying and intimidation amounting to discreditable conduct).
[84] The plaintiff has not satisfied me that the defendant has no valid defence of justification. He has not satisfied me that there are reasonable grounds to be believe that misdescribing the mechanism of the plaintiff’s removal from the board (wrongly saying it was the Integrity Commissioner when it was the TEYCC) materially injured the plaintiff’s reputation having regard to the truth of the remaining statements.
Fair comment
[85] As set out above in the section dealing with justification, I believe that the statements made by the defendant (assuming for the purpose of this motion that the plaintiff’s version of events is true) are better understood as statements of fact than comments.
[86] For that reason, I find that the defendant may not have a valid defence of fair comment. If this case were to go to trial, it is possible that the trial judge could find that the statements made by the defendant were better understood as comments.
[87] Even with this finding, the defendant has at least three defences to this proceeding that appear to be valid. The plaintiff has failed to demonstrate that the defendant has no valid defence.
Conclusion
[88] For the reasons set out above, I doubt that the plaintiff has demonstrated that this proceeding has substantial merit. I am, however, prepared to assume that the plaintiff has met that burden.
[89] The plaintiff has not satisfied me that the defendant has no valid defence in the proceeding. He has not satisfied me that the defendant does not have a valid defence under s. 391 of the City of Toronto Act, 2006, the defence of qualified privilege, or the defence of justification.
[90] These findings are sufficient for me to grant the defendant’s motion and dismiss this proceeding under subsection 137.1(3). However, as the crux of the analysis on a s. 137.1 motion is to take place under s. 137.1(4)(b), I will conduct the weighing exercise under that provision.
Weighing the public interest
[91] The final weighing exercise is to take place under s. 137.1(4)(b), which states:
(4) A judge shall not dismiss a proceeding under subsection (3) if the [plaintiff] satisfies the judge that,
(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.
[92] It is at this stage that I must the weigh the public interest in vindicating a legitimate claim through the courts against the resulting potential for quelling expression that relates to a matter of public interest. The burden is on the plaintiff at this final stage, which is a “robust backstop” to permit motion judges to dismiss even technically meritorious claims if the public interest in protecting the expression that gave rise to the proceeding outweighs the public interest in permitting the proceeding to continue: Pointes, at para. 62.
[93] A plaintiff must demonstrate the existence of harm that was caused by the expression of the defendant. A plaintiff does not need to prove harm or causation, but must provide evidence sufficient for a judge to draw an inference of likelihood in respect of the existence of harm and the relevant causal link: Pointes, at para. 71.
[94] A plaintiff does not need to demonstrate a particular kind of harm. Either monetary or non-monetary harm can be sufficient, and it need not be quantified. The case law makes clear that a plaintiff is not required to provide a fully developed damages brief, but a judge is not required to accept the pleadings or bald assertions of harm at face value: Pointes, at para. 71.
[95] In this case, the plaintiff has not provided evidence sufficient for me to draw an inference that it is likely that he suffered any material harm. The plaintiff filed no evidence to support his claim for special damages. The plaintiff filed no evidence that he suffered economic harm resulting from the defendant’s statements. The plaintiff filed no evidence that he suffered any loss of opportunity, engagement with the community, or loss of dignity arising from the defendant’s conduct. There is no evidence that the defendant’s statements at the meeting were rebroadcast or circulated more widely.
[96] I am not prepared to accept the pleading in this case or the plaintiff’s bald assertions of harm. Reading his affidavit generously, the plaintiff asserts that the defendant’s mention of the Integrity Commissioner would “kill [the plaintiff’s] offer” to stand for election to the board. Even accepting this as evidence of harm, it is now uncontested that on the day of the AGM, the plaintiff was not eligible to be elected to the board. He did not own property or run a business within the geographic area of the BIA. He did not have a representation agreement in place. I am not satisfied that his evidence supports an inference of the existence of harm: Pointes, at para. 71.
[97] The plaintiff’s affidavit contains only one other paragraph supporting the harm he allegedly suffered from the defendant’s statement. In paragraph 44 of his affidavit, the plaintiff states:
As to damage to my reputation I offer the recent exoneration given by CTV to Patrick Brown for their malevolent treatment of his reputation. Today, Brown could have been Premier of Ontario except for the smear to his reputation which was made when he was most exposed and vulnerable; during an election campaign. Notwithstanding he has 'rehabilitated' his reputation and the slanderer has issued an apology and 'clarified' the matter, is there any doubt as to the irreparable harm done? [Emphasis added.]
[98] The only evidence, therefore, that the plaintiff offered with respect to the damage to his reputation was by analogy to another case. This is insufficient. I find that this paragraph provides no evidence to support an inference that the defendant harmed the plaintiff: Gill v. Maciver, 2022 ONSC 1279, at para. 99; Levant v. DeMelle, 2022 ONCA 79, 82 C.C.L.T. (4th) 48, at paras. 68-71, leave to appeal to S.C.C. requested, 40109; Pointes, at para. 71.
[99] Even if the plaintiff has a technically meritorious defamation proceeding, I find that the level of harm he suffered is not very serious at all. I find that there is little public interest in permitting such a proceeding to continue to trial.
[100] On the other hand, I find that there is a high level of public interest in protecting the defendant’s comments that are in issue in this litigation.
[101] I find that the defendant’s statements did not contain deliberate falsehoods or gratuitous personal attacks. Even if the defendant was incorrect in some of her comments, they were not deliberate falsehoods and they were expressed without vitriol: Pointes, at para. 75.
[102] The nature of the defendant’s statements affords them a very high level of protection. The defendant is an employee of the City of Toronto. She made her comments in the performance of her duties. She was attempting to provide her best advice to a local board. The citizens of Toronto have a legitimate expectation that City staff will always provide their best advice, without fear or favour. They must feel free to speak truth to power without fear that they will be sued easily for what they say. Their communications contribute significantly to the search for truth, encourage meaningful participation in municipal political decision-making, and promote diversity in forms of self-fulfilment and human flourishing: Pointes, at paras. 77 and 80. I find that the expression at issue in this case lies very close to these core values and that there is a significant public interest in protecting it. There is a significant public interest in ensuring that employees of the City of Toronto do not have their speech chilled by litigation such as this proceeding.
[103] In conclusion, I find that the plaintiff has not shown on the balance of probabilities that he likely has suffered or will suffer harm, that such harm is a result of the defendant’s expression, and that the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation.
[104] For the reasons set out above, I order that this proceeding be dismissed.
Costs
[105] Subsection 137.1(7) of the Courts of Justice Act states that the defendant is entitled to costs on the motion and the proceeding on a full indemnity basis, unless I determine that such an award is not appropriate in the circumstances. Despite this presumption, I still have the obligation when determining the quantum of costs to be awarded to undertake the same type of analysis that is required in fixing costs in other contexts. The quantum to be awarded must still be fair and reasonable for what was involved in the particular proceeding and must be proportionate to the importance and complexity of the issues and the amount involved in the proceeding: United Soils Management Ltd. v. Mohammed, 2019 ONCA 128, 53 C.C.L.T. (4th) 1, at paras. 40 to 42.
[106] The defendant was entirely successful on this motion and has delivered a costs outline seeking $75,941.27 for costs of the proceeding on a full indemnity basis. For comparison purposes, the plaintiff’s cost outline claimed $112,109.37 for the proceeding on a full indemnity basis. Bearing in mind these figures, the presumption contained in s. 131.7, and the factors set out in rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I urge the parties to resolve the issue of costs if possible. The parties should advise my judicial assistant if they are able to reach an agreement.
[107] If the parties are not able to resolve costs, the defendant may make costs submissions of no more than three double-spaced pages to be sent by email to my judicial assistant on or before July 19, 2022. The plaintiff may file responding submissions of no more than three double-spaced pages on or before July 25, 2022. There will be no reply submissions permitted without leave.
Robert Centa J.
Released: July 12, 2022
COURT FILE NO.: CV-20-650518
DATE: 20220712
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stylianos Papatheodosiou
Plaintiff
– and –
Angela Varone
Defendant
REASONS FOR JUDGMENT
R. Centa J.
[^1]: A motion under section 137.1 is unusual because the defendant is the moving party but the onus of proof at many stages of the analysis is on the plaintiff, who is often described as the responding party. Throughout these reasons, I will refer to Mr. Papatheodosiou (the plaintiff in this action and the responding party on this motion) as the plaintiff and to Ms. Varone (the defendant in this action and the moving party on this motion) as the defendant.
[^2]: After the argument of this motion, the plaintiff sent an email directly to me and, later, copied me on an email to his counsel. The plaintiff did not copy counsel for the defendant on either email. Both emails contained material that appeared to me to be protected by solicitor-client communication privilege. On June 29, 2022, I convened a case conference with counsel for both parties to receive submissions on how to proceed in the circumstances. I issued an endorsement stating, among other things, that I would disregard the communications from the plaintiff in their entirety and that I would neither forward them to counsel for defendant nor include them in the court file.