COURT FILE NOS. CV-18-00136348-0000 and CV-19-00139652-0000
DATE: 20220805
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Karen Cilevitz
Plaintiff
– and –
Matthew Bergman, also known as Matt Groopie
Defendant
Jason Cherniak, for the plaintiff
Matthew Stroh and Andrew Mercer, for the defendant
AND BETWEEN:
Karen Cilevitz
Plaintiff
– and –
The Corporation of the Town of Richmond Hill, Integrationsolutions Inc., carrying on business as iSi Live, Carmine Perrelli, Matthew Bergman, also known as Matt Groopie, Marcia Papa, Gregory Swain, David Grossman, Nicandro Papa, also known as Nick Papa, Jane Doe and John Doe
Defendants
Jason Cherniak, for the plaintiff
Matthew Stroh and Andrew Mercer, for Matthew Bergman
Ryder Gilliland, for Marcia Papa and Nicandro Papa
Gregory Swain, in person
Heard at Newmarket on January 31, 2022, by video conference
S.T. BALE J.:
Overview
[1] In these actions, Karen Cilevitz, a town councillor in Richmond Hill, Ontario, sues the defendants for defamation.
[2] On these motions, the defendants Matthew Bergman, Marcia Papa, Gregory Swain and Nicandro Papa move to dismiss the actions under s. 137.1 of the Courts of Justice Act. Although there are other defendants, as a matter of convenience, I will refer to the moving defendants as “the defendants”.
[3] For the reasons that follow, the motions are granted and both actions will be dismissed.
Background facts
[4] This saga began in December 2017 when Matthew Bergman messaged Ms. Cilevitz’s common law spouse, Derek Christie, and told him to stop bullying his friend and bandmate, Steffi Goodfield. Ms. Goodfield had broken down crying the previous evening, saying that Mr. Christie had been putting her and her York Region Open Mic events down for years and that she was going to quit hosting events as a result.
[5] Ms. Cilevitz then decided to involve herself in the dispute. When she was unable to engage with Mr. Bergman directly (he told her to stop contacting him), she began a course of conduct toward Ms. Goodfield that was ultimately found to be bullying. Much of the content of the bullying consisted of complaints about Matthew Bergman’s conduct in his dispute with Mr. Christie.
[6] Ms. Goodfield made a complaint to Richmond Hill council about Ms. Cilevitz’s conduct in which she said that through “a series of emails, phone calls and voice-mail, I have been harassed, intimidated, bullied and threatened by Councillor Karen Cilevitz.”
[7] In June 2018, Ms. Cilevitz commenced an action against Mr. Bergman (the “first action”). In her statement of claim, she alleged that between May 31 and June 17, 2018, Mr. Bergman had published comments defamatory of her on Facebook.
[8] In July 2018, Council referred Ms. Goodfield’s complaint to the town’s Integrity Commissioner. In his report[^1] dated November 13, 2018, the Commissioner determined that Ms. Cilevitz had violated the town’s code of conduct by, among other things, engaging in conduct that was "bullying in tone" and "intended to intimidate" a member of the public, and that she had threatened legal action from a position of authority as a public figure. In his report, the Commissioner noted that “Mr. Bergman was also the subject and/or intended co-recipient, via the Complainant, of some of the communications to which this complaint refers.”
[9] Council considered the Integrity Commissioner’s report at a public meeting held on December 17, 2018. The meeting was video-recorded, and a copy of the recording was made an exhibit at the hearing. Each of the defendants was invited to speak, and did speak, at the meeting. Ultimately (after a motion to impose a reprimand, only, failed to carry), Council passed a resolution providing for the suspension of Ms. Cilevitz’s remuneration for a period of 90 days. The resolution reads as follows:
Whereas the relevant part of Section 7 of the Code which pertains to this matter states: All members have a duty to treat members of the public, one another and staff appropriately and without abuse, bullying or intimidation, and to ensure that their work environment is free from discrimination and harassment;
Whereas, in a report dated November 13th, 2018, the lntegrity Commissioner has found that Councillor Karen Cilevitz breached the Council Code of Conduct ("Code of Conduct) by bullying and intimidating a resident with stage 4 Cancer;
Whereas the Municipal Act permits Council, following a finding that a Member of council has breached the code of conduct, to impose one of either a reprimand, or the suspension of a Member of Council's remuneration of up to 90 days;
Whereas a key component of this complaint was so outrageous that it received extensive media coverage from several media entities including 640AM, CFRB TALK 1010, CBC news as well as by rebel media, all of which portrayed Richmond Hill in a negative light;
Therefore, be it resolved:
That, commencing December 18th, 2018, Council direct staff to suspend Councillor Karen Cilevitz's remuneration for a period of ninety (90) days for breaching the Code of Conduct.
That Council directs that a grant be provided to Steffi Goodfield, in an amount equal to the remuneration suspended, to promote music in the Town of Richmond Hill.
Carried Unanimously
[10] In March 2019, Ms. Cilevitz commenced an action against Matthew Bergman, Marcia Papa, Gregory Swain, Nicandro Papa and others (the “second action”). In her statement of claim, Ms. Cilevitz alleges that Mr. Bergman, Marcia Papa and Gregory Swain had made defamatory statements about her at the December 17, 2018 council meeting. She alleges that Nicandro Papa had “encouraged, approved and participated in the making and publication of the Defamatory Words, in furtherance of a common design.” She bases this latter allegation solely on a message he had sent her on December 14, 2018 saying: “This is just the beginning. More to come. You don’t deserve to represent ward 5. Nick.” Mr. Papa is a former Richmond Hill councillor who was defeated by Ms. Cilevitz in 2014 and 2018.
The law
[11] Subsections 137.1 to 137.5 of the Courts of Justice Act are commonly referred to as Ontario’s anti-SLAPP legislation – Strategic Lawsuits Against Public Participation.
[12] The purposes of ss. 137.1 to 137.5 of the CJA are set out in s. 137.1(1):
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.
[13] Section 137.1(3) provides for the dismissal of a proceeding where the defendant demonstrates that the proceeding arises from an expression made by the defendant that relates to a matter of public interest:
(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
[14] Under section 137.1(4), if the defendant has satisfied the initial burden of showing that the impugned expression relates to a matter of public interest, the persuasive burden shifts to the plaintiff to clear both merits and public interest hurdles:
(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.
[15] In 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, the court refers to the test under s. 137.1(4)(a) as the “merits-based hurdle” and the test under s. 137.1(4)(b) as the “public interest hurdle”.
Merits-based hurdle
[16] In Pointes, at para. 54, the court summarizes the elements of the “substantial merit” test under s. 137.1(4)(a)(i):
In summary, in light of the foregoing analysis, to discharge its burden under s. 137.1(4)(a)(i), the plaintiff must satisfy the motion judge that there are grounds to believe that its underlying claim is legally tenable and supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect of success.
[17] In Pointes, at para. 60, the court summarizes the elements of the “valid defence” test under s. 137.1(4)(a)(ii):
In summary, s. 137.1(4)(a)(ii) operates, in effect, as a burden-shifting provision in itself: the moving party (i.e. defendant) must put potential defences in play, and the responding party (i.e. plaintiff) must show that none of those defences are valid in order to meet its burden. Mirroring the “substantial merit” prong, under which the plaintiff must show that there are grounds to believe that its claim has a real prospect of success, the “no valid defence” prong requires the plaintiff, who bears the statutory burden, to show that there are grounds to believe that the defences have no real prospect of success. This makes sense since s. 137.1(4)(a) as a whole is fundamentally concerned with the strength of the underlying proceeding.
[18] In Pointes, at para. 59, the court summarizes the task of the motion judge:
[T]he motion judge must first determine whether the plaintiff’s underlying claim is legally tenable and supported by evidence that is reasonably capable of belief such that the claim may be said to have a real prospect of success, and must then determine whether the plaintiff has shown that the defence, or defences, 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.
Public interest hurdle
[19] Section 137.1(4)(b) of the CJA provides that the court shall not dismiss a proceeding if the responding party satisfies the judge that:
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.
[20] In Pointes, at para. 82, the court explains s. 137.1(4)(b) as follows:
In conclusion, under s. 137.1(4)(b), the burden is on the plaintiff — i.e. the responding party — to show on a balance of probabilities that it likely has suffered or will suffer harm, that such harm is a result of the expression established under s. 137.1(3), and that the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation. This weighing exercise is the crux or core of the s. 137.1 analysis, as it captures the overarching concern of the legislation, as evidenced by the legislative history. It accordingly should be given due importance by the motion judge in assessing a s. 137.1 motion.
Elements of defamation
[21] A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 SCR 640, at para. 28.
Defences to claim of defamation
[22] The defendants raise one or more of the following defences to Ms. Cilevitz’s various claims of defamation.
Justification
[23] It is a complete defence to defamation if the words are substantially true. In this respect, a defendant need not prove the truth of each and every word, but rather that "the main charge, or the gist of the libel" is true: Sidorsky v. CFCN Communications Ltd., 1994 CanLII 9042, at para. 185.
Qualified privilege
[24] The defence of qualified privilege applies "to the occasion when a defamatory statement is made, not to the statement itself." On an occasion of qualified privilege, a person may defame without attracting liability: RTC Engineering Consultants Ltd. v. Ontario (Ministry of Solicitor General & Correctional Services - Office of Fire Marshall), 58 O.R. (3d) 726, 2002 CanLII 14179, (C.A.), at para. 14.
[25] The privilege arises where the maker of the statement has an interest in making the statement and those receiving the statement have a corresponding interest in receiving it. Such an interest should not be construed narrowly, it may arise from, among other things, personal, social, business, moral, financial or legal circumstances: RTC Engineering, at para. 16.
Fair comment
[26] Comment includes any deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof. A defendant may rely on the defence of fair comment where the words complained of were: (i) on a matter of public interest; (ii) based on fact; (iii) recognizable as comment (including inferences of fact); and (iv) the comment is one that a person could honestly believe based on the proved facts. The defence may be defeated if the plaintiff proves that the defendant was actuated by express malice: Grant, at para. 31.
Analysis
[27] Ms. Cilevitz concedes that the expressions in issue relate to a “matter of public interest” and that the defendants have therefore met their onus under s. 137.1(3). Accordingly, it is her onus to satisfy the court that:
• there are grounds to believe that her claims have substantial merit - s. 137.1(4)(a)(i);
• there are grounds to believe that the defendants have no valid defence to the allegations - s. 137.1(4)(a)(ii); and
• the harm suffered or likely to be suffered by Ms. Cilevitz as a result of the defendants’ expressions was sufficiently serious that the public interest in permitting her to proceed with the litigation outweighs the public interest in protecting the defendants’ freedom of expression - s. 137.1(4)(b).
Merits-based hurdle – Matthew Bergman – first action
[28] Ms. Cilevitz was up for re-election in the October 2018 municipal election. She argues that the following statements made by Matthew Bergman on social media are defamatory.
“She used a bogus reason to harass us with her councillor position.”
[29] I agree with Ms. Cilevitz’s counsel that this statement is defamatory. However, I also agree with Mr. Bergman’s counsel that the statement is supported by the evidence. Ms. Cilivetz did harass Mr. Bergman and others and her statement that they were not entitled to use the term “Ward 5” in relation to their musical events was false. She threatened to take legal action against Ms. Goodfield and Mr. Bergman if they used the words “Ward 5”. In these circumstances, I am not satisfied that the defence of justification 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.
Or call our place of business and tell them lies about us because we used the word ward? And then, after we asked her to leave us alone, continues harassing us with emails, sending by-law, sending people to harass us?
[30] Counsel for Ms. Cilevitz singles out the words “sending bylaw” and argues that this is a serious allegation in that it suggests that she used her position as a member of town council to send bylaw enforcement officers to harass Mr. Bergman. However, the main charge or gist of the libel is true. Ms. Cilevitz did contact the owner of a venue where Ms. Goodfield and Mr. Bergman intended to hold and event using “Ward 5” in the event description and because the owner did not want to become involved in the dispute, Goodfield and Bergman were prevented from using the description. Ms. Cilevitz did continue to harass them after receiving a text from Mr. Bergman asking that she not contact him. In the result, I am not satisfied that the defence of justification 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.
I’m sorry your friends are such corrupt liars.
[31] This would appear to be an allegation against Ms. Cilevitz and Derek Christie. Counsel for Ms. Cilevitz argues that it is a serious allegation because corruption is a criminal offence and she is a public official. However, it is unreasonable to suggest that in order to put the defence of justification into play, Mr. Bergman would have to adduce evidence that would support a criminal conviction. There is evidence that Ms. Cilevitz attempted to use her position as a member of Council to intervene in a private dispute between Mr. Bergman and Mr. Christie. In these circumstances, I am not satisfied that the defence of justification 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.
They [mayor and council] are okay with harassing, bullying, threatening and intimidating cancer patients. And a liar too. He [the mayor] is a liar. And so is Karen.
[32] Counsel for Ms. Cilevitz argues that although there is evidence that Ms. Cilevitz harassed a cancer patient (Steffi Goodfield), by using the plural “cancer patients”, Mr. Bergman is suggesting that Ms. Cilevitz was on a “campaign against cancer patients”. I disagree. Mr. Bergman is suggesting that the mayor and other members of Council are “okay with” Ms. Cilevitz’s conduct toward Ms. Goodfield. There is evidence that before Ms. Goodfield made her formal complaint, Mr. Bergman and others had attended at several council meetings and asked Council to investigate, and that Council declined to do anything. In these circumstances, even if the words “mayor and council” are understood to include Ms. Cilevitz, I am not satisfied that the defence of fair comment is not legally tenable and supported by evidence that is reasonably capable of belief, such that it has no real prospect of success.
Friends in Oak Ridges/ward 1 please do not vote for this uninformed joke. Greg Beros is the guy to vote for – he actually stuck up for us and seconded a motion put forward by Richmond Hill Ward 2 Councillor Tom Muench to open an investigation into the harassment, intimidation, threatening and bullying of Steffi G., myself, my band and businesses in RHill. This lady is spouting off and doesn’t even care to do any research on the issue. Lidia Carmela Kafieh for Ward 1 Oak Ridges Councillor is as uninformed as it gets. We need to avoid these sorts of people when we hit the voting booths in October. Lets get rid of the corrupt scum and block uninformed people like this from obtaining control of your tax dollars. [emphasis in original.]
[33] Counsel for Ms. Cilevitz argues that the allegation of corruption in this quote is “the worst offence here.” However, I do not read the comments as referring to Ms. Cilevitz. In the conversation, Mr. Bergman refers to Lidia Carmela Kafieh as an “uninformed joke” and as someone who is as “uninformed as it gets.” There is no reference to Ms. Cilevitz and I am not satisfied that there are grounds to believe that her claim based on this statement has substantial merit. In any event, even if “corrupt scum” was meant to refer to Ms. Cilevitz, it is Mr. Bergman’s opinion of her, and it is an opinion that based on the evidence, Mr. Bergman could honestly hold.
[34] For the reasons given, I find that Ms. Cilevitz’s claims against Mr. Bergman in the first action do not survive the merits-based hurdle in s. 137.1(4)(a) of the CJA.
Public interest hurdle – Matthew Bergman – first action
[35] There is a strong public interest in protecting expression about a candidate’s suitability for public office. Ms. Cilevitz has demonstrated very little, if any, personal or financial harm, real or potential, as a consequence of any of the alleged defamatory statements. Mr. Bergman made the statements during social media conversations with a small group. There is no evidence of any further dissemination of the statements, and they are not such as would be expected to be given any significant weight by others who may have seen them. Tellingly, in a public statement released by Ms. Cilevitz on December 19, 2018, she said: “[D]espite all that was attempted by a select group to influence the contrary, the electorate believed otherwise and returned Councillor Cilevitz with a substantial majority.”[^2]
[36] In the result, I find that Ms. Cilevitz has not shown that any harm that she has or will suffer as a result of Mr. Bergman’s expressions is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting those expressions.
[37] The first action will therefore be dismissed.
Second action –Marcia Papa
[38] At the council meeting on December 17, 2018, Ms. Papa said that she had received hundreds of harassing messages over the course of three days and that someone had created a fake Google account in the name of her business, and written a review calling her a bully and attempting to tarnish her reputation as an anti-bullying advocate, teacher and business owner. She then made the following statement that Ms. Cilevitz argues is defamatory:
After speaking with the York Regional Police about several instances, they in fact told me that they believe the person who was responsible for sending me the messages was actually Karen Cilevitz herself. Yes, that is what the York Regional Police told me.
[39] Counsel for Ms. Cilevetz argues that this was “a very clear accusation that the police believe that Karen Cilevetz sent hundreds of hateful, angry and harassing messages. … In fact it’s a very serious allegation because, again, it involves the police. It involves potential criminality.”
[40] Counsel for Ms. Papa relies on the defence of justification in relation to this statement and argues that Ms. Cilevitz has not shown that there are grounds to believe that the defence has no real prospect of success. In her affidavit filed in support of her motion, Ms. Papa swears that at the time of the council meeting, she believed her statements to be true and still does. She attached copies of some of the messages that she had received. Counsel for Ms. Cilevitz argues that Ms. Papa saying that she believes the statement to have been true is not the same as saying that the statement was true, and that therefore there is no evidence that it was true. I disagree. Ms. Papa is describing a statement which she says was made to her by the police. She couldn’t possibly believe it to be true unless she had, in fact, heard the police make the statement. She was not cross-examined nor was any evidence to the contrary filed by Ms. Cilevitz. In the result, I find Ms. Cilevitz has not met her onus under s. 137.1(4)(a)(ii) to show reasonable grounds to believe that justification is not a valid defence to her claim against Ms. Papa.
[41] Counsel for Ms. Papa also relies upon the defence of qualified privilege. As a resident of Richmond Hill and an antibullying advocate, Ms. Papa had an interest in expressing her views, and Council had an interest in hearing them. Again, I find that Ms. Cilevitz has not met her onus to show reasonable grounds to believe that qualified privilege is not a valid defence to her claim against Ms. Papa.
Second action – Matthew Bergman
[42] Ms. Cilevitz argues that the following statement made by Matthew Bergman at the council meeting is defamatory:
I have received hate mail, blackmail, extortion threats, death threats, bomb threats, threats of sexual assault towards myself and my band mates, lost gigs, lost venues, lost friends, and potential clients. I've been slandered within the community and in the press by Councillor Cilevitz and purposefully misquoted in the local newspaper with additional threats of being recorded followed and monitored online and in my day-to-day life.
[43] Counsel for Ms. Cilevitz acknowledges that Mr. Bergman did not say that Ms. Cilevitz had done any of these things (other than slandered him) but says that “a reasonable person reading these words would think it’s an allegation that Councillor Cilevetz was somehow involved … and that would lower their opinion of her.”
[44] Counsel for Mr. Bergman argue that Ms. Celevitz has not shown that this allegation has substantial merit. In the alternative, they rely on the defence of justification and argue that Ms. Cilevitz has not shown that there are grounds to believe that the defence has no real prospect of success. In response, counsel for Ms. Cilevitz argues that there is no evidence to support the statement (other than possibly the threat of sexual assault) and that therefore, the defence has not been put into play, so as to require Ms. Cilevitz to satisfy the court that there are grounds to believe that the defence has no real prospect of success.
[45] However, there is evidence from Steffi Goodfield that the events in question had caused a rift in the local musical community and that Derek Christie had approached musicians and talked them into avoiding events planned by Ms. Goodfield. There is also a Facebook message directed to Mr. Bergman from an anonymous account in which the writer says: “Look at what we have here … fucking Tony Soprano! You just gotta wait … matt … its GONNA BE A BLAST!!! PALESTINIAN STYLE!!!!!” There is another Facebook message from the same account calling Mr. Bergman a bully, demanding that he issue an apology on Sunday, June 3 and threatening that: “Your failure to do so will force me to go public with a video, among other things. I will be there waiting, watching. Consider yourself warned, bud.” The message was sent to Ms. Goodfield but the writer said in the message that it was not directed to her, but rather to Mr. Bergman and his band.
[46] In order to put the defence of justification into play, it is not necessary for Mr. Bergman to prove the truth of every single word, especially when he did not allege that Ms. Cilevetz had taken the actions complained of. The main thrust of the words is to outline the effect that the events in question had on him. In these circumstances, I am not satisfied that the claim against Mr. Bergman has substantial merit. Alternatively, if I am not correct in that analysis, considering the whole of the evidence, I find that the defence of justification has been put into play and that Ms. Cilevetz has not shown that there are grounds to believe that the defence has no real prospect of success.
[47] Counsel for Mr. Bergman also rely upon the defence of qualified privilege. As a resident of Richmond Hill, a friend and bandmate of Steffi Goodfield and a person whose life was negatively affected by Ms. Cilevitz’s conduct, Mr. Bergman had an interest in expressing his views, and Council had an interest in hearing them. I find that Ms. Cilevitz has not met her onus to show reasonable grounds to believe that qualified privilege is not a valid defence to her claim against Mr. Bergman.
Second action – Gregory Swain
[48] Ms. Cilevitz argues that the following statement made by Gregory Swain at the council meeting was defamatory:
“Before that we were at the Richmond Hill Centre for the Performing Arts, until Karen Cilevitz, behind our back, got us booted out of there.”
[49] Ms. Cilevitz’s counsel argues that this is an allegation that Ms. Cilevitz abused her position as councillor to deny Mr. Swain from using a public amenity that should be available to all members of the public and that that is a very serious allegation.
[50] There is no evidence that Ms. Cilevitz got Mr. Swain or others “booted out of” the Richmond Hill Centre for the Performing Arts, and to the contrary, Ms. Cilevitz filed an affidavit of the theatre manager of the Centre between 2006 and 2021. His evidence is to the effect that Mr. Swain had never been booked at the Centre and could therefore not have been “booted out”. In his submissions, Mr. Swain acknowledged that he had never worked at the Centre and said that the impugned statement was “a rhetorical statement that came off the cuff”.
[51] However, Mr. Swain relies upon the defence of qualified privilege. He is a friend and colleague of Steffi Goodfield in the music business and the main thrust of his comments at the council meeting was to inform Council of the toll that Ms. Cilevitz’s bullying had taken on her. As a resident of Richmond Hill, he had an interest in providing that information and Council had an interest in receiving it. I am therefore not satisfied that the defence of qualified privilege can be said to have no real prospect of success.
Public interest hurdle – second action
[52] There is a strong public interest in protecting citizens’ rights to participate in democracy by making submissions to elected officials whether at municipal council meetings or otherwise. The onus is therefore on Ms. Cilivetz to show on a balance of probabilities that it is likely that she has or will suffer harm, that such harm is a result of the defendants’ expressions, and that the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation.
[53] Ms. Cilevitz argues that she suffered financial harm as a result of the statements made by the defendants at the council meeting – her loss of three months’ remuneration. For the following reasons, I find that argument to be weak.
[54] In application no. CV-19-00138852-0000 made under s. 273 of the Municipal Act, 2001, Ms. Cilevitz asks the court to quash the bylaw by which the matter was referred to the Integrity Commissioner and the bylaw by which her pay was suspended for 90 days. Apparently, that application has been stayed pending determination of the application referred to in the next paragraph. If Ms. Cilevitz is able to proceed with the application and is successful, she will be entitled to be compensated by Richmond Hill for her loss of remuneration.
[55] In application for judicial review no. 196/19, Ms. Cilevitz takes the position, among others, that Council ought not to have heard from the defendants at the council meeting, and again asks the court to quash both by-laws. That application remains outstanding. The parties have held it in abeyance pursuant to an agreement between Ms. Cilevitz and Richmond Hill, the particulars of were not disclosed. If she proceeds with the application and is successful, she will be entitled to be compensated by Richmond Hill for her loss of remuneration.
[56] A plaintiff must provide evidence to allow the motion judge to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link: Pointes, at para. 71. Evidence of a causal link between the expression and the harm will be especially important where there may be sources other than the defendant’s expression that may have caused the plaintiff harm”: Pointes, at para. 72.
[57] It is doubtful that the statements Ms. Cilevitz complains about could be shown to be the cause of her loss of remuneration. The Integrity Commissioner’s report was damning enough, and several councillors and a number of other citizens also spoke of the need for Council to take her bullying seriously. The councillor who made the motion which was ultimately adopted by Council wore a blue shirt and explained that blue shirts are worn on “bullying prevention day”. He had drafted the motion over the weekend before the council meeting. It is unclear how Ms. Cilevitz would go about proving that but for the impugned comments made by any one or more of the defendants, Council would not have docked her pay.
[58] As set out above, the resolution pursuant to which Ms. Cilevitz’s remuneration was suspended refers to the finding of the Integrity Commissioner that she had bullied and intimidated a resident with stage 4 cancer and states that “a key component of this complaint was so outrageous that it received extensive media coverage from several media entities including 640AM, CFRB TALK 1010, CBC news as well as by rebel media, all of which portrayed Richmond Hill in a negative light.” There is nothing in the resolution that could be construed as a reference to any of the statements complained of by Ms. Cilevitz. Evidence of a causal link between the statements she complains of and her loss of remuneration is weak or nonexistent.
[59] There is, however, evidence that would support an inference of a link between the substance of the defendants’ presentations and Council’s decision. The minutes of the council meeting refer to the real substance of each of the defendants’ presentations but not to any of the expressions complained of by Ms. Cilivetz.
[60] Ms. Cilevitz also argues harm to her reputation and there can be no doubt that her reputation suffered harm at the council meeting. However, again, the evidence of a causal link between the statements she complains of and that harm is weak or nonexistent. The evidence supports a much stronger causal link between the findings of the Integrity Commissioner and the harm to her reputation.
[61] The evidence also supports a causal link between the substance of the defendants’ submissions and the harm to Ms. Cilevitz’s reputation. Ms. Papa, an anti-bullying advocate whose deceased son had been bullied at school, spoke passionately about the need for Council to take the issue seriously. Mr. Bergman and Mr. Swain spoke about the toll that the whole affair had taken on Ms. Goodfield. The tenor of all their presentations was that Ms. Goodfield had been a wonderful community builder and that Ms. Cilevitz’s bullying had caused a setback of her community work. That this is what Council took from the presentations is borne out by the significant donation they resolved to give Ms. Goodfield to support her community work. Ms. Goodfield and others also gave compelling presentations.
[62] In the end result, I am not satisfied that the harm likely to be or have been suffered by Ms. Cilevitz as a result of the expressions of any of the defendants is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting those expressions.
Second action - Nicandro Papa
[63] Mr. Papa did not speak at the council meeting. The allegation against him is that he was involved in a conspiracy, together with the other defendants, to cause harm to Ms. Cilevitz. The allegation is based solely on a message he sent to her on December 14, 2018 saying: “This is just the beginning. More to come. You don’t deserve to represent ward 5. Nick.” Counsel for Ms. Cilevitz argues that Mr. Papa must have known what was to take place at the council meeting and helped to organize it. However, even if Mr. Papa did know that the defendants intended to speak at the council meeting, there is no evidence that he knew what they would say and certainly no evidence that he conspired with them to harm Ms. Cilevtiz. Counsel for Ms. Cilevitz says that evidence of the conspiracy may be obtained on discovery. However, allegations of conspiracy are extremely serious and should not be made speculatively. I am therefore not satisfied that the claim against Mr. Papa is legally tenable or supported by evidence reasonably capable of belief, such that the claim against him may be said to have a real prospect of success.
[64] In any event, counsel for Ms. Cilevitz has conceded that if the claim against the other defendants is dismissed, the claim against Mr. Papa must also be dismissed.
Disposition
[65] For the reasons given, the defendants’ motions are allowed and both actions are dismissed.
[66] If the defendants wish to pursue a claim for damages under section 137.1(9) of the Courts of Justice Act, they may obtain a date from the trial coordinator for a hearing to determine such damages and costs. If the parties are unable to agree to the procedure for doing so, I will consider brief written argument on that issue.
[67] If the defendants do not wish to pursue a claim for damages and the parties are unable to agree on costs, I will consider brief written argument, provided that it is delivered to monica.mayer@ontario.ca, no later than August 26, 2022.
“S.T. Bale J.”
Released: August 5, 2022
COURT FILE NOS. CV-18-00136348-0000 and CV-19-00139652-0000
DATE: 20220805
BETWEEN:
Karen Cilevitz
Plaintiff
– and –
Matthew Bergman, also known as Matt Groopie
Defendant
AND BETWEEN:
Karen Cilevitz
Plaintiff
– and –
The Town of Richmond Hill, and others
Defendants
REASONS FOR DECISION
S.T. Bale J.
Released: August 5, 2022
[^1]: Counsel for Ms. Cilevitz said in argument that he does not challenge the Commissioner’s findings and that he agrees that the findings are persuasive, although not binding on the court.
[^2]: For another case where the court took into consideration the plaintiff’s electoral success, see Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, at para. 79.