SUPERIOR COURT OF JUSTICE – ONTARIO

Court File and Parties

COURT FILE NO.: CV-20-0031

DATE: 20221017

RE: Marcel Marcellin, Plaintiff

AND

The London Police Services Board, London Police Officers John and Jane Doe, John Pare, The Woodstock Police Services Board, Woodstock Police Officers John and Jane Doe, Bill Renton, J.Y., Megan Walker, Kate Wiggins, the London Abused Women’s Centre and ANOVA, Defendants

BEFORE: Justice Spencer Nicholson

COUNSEL: P. Millar and S. Stewart for the Plaintiff, Responding Party

C. Demelo for the Defendant, Julie Young (J.Y.), Moving Party

D. Wallace, S. Miller and N. Racco for the Defendants, Megan Walker and the London Abused Women’s Centre, Moving Parties

C. Patterson for the Defendant, Kate Wiggins, Moving Party

A.M. Frauts for the Defendant, ANOVA, Moving Party

HEARD: January 25, 26 and March 3, 2022

REASONS ON ANTI-SLAPP MOTION

NICHOLSON J.:

[1] The plaintiff, Marcel Marcellin, has sued the defendants for damages exceeding $4 million. The claims against the defendants Julie Young (I note that her name is initialized in the style of cause but she confirmed that she could be identified during the motion), Megan Walker, the London Abused Women’s Centre, ANOVA and Kate Wiggins are framed in harassment, defamation, libel, slander, invasion of privacy, intentional interference with economic relations, interference with employment relations, inducement of breach of contract, intrusion on seclusion and/or negligent investigation. Those defendants move pursuant to the “Anti-SLAPP” provisions contained in s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C43, as amended (“CJA”), to dismiss the action as against them.

[2] The other defendants took no part in this motion. However, it is important in the context of this motion to understand the nature of the claims against them. I will discuss this below. I note that John Pare was the Chief of Police in London and Bill Renton was the Chief of Police in Woodstock.

[3] The motion was argued over three days. There was a very substantial amount of material submitted on this motion. Each party was cross-examined. I have reviewed all of the material, including the transcripts from the cross-examinations. I am intentionally leaving a considerable amount of detail which I view as unnecessary to recite, out of this decision. I cannot possibly refer to it all.

THE PARTIES TO THE MOTION:

[4] Mr. Marcellin is 51 years old. He is black. For 21 years, Mr. Marcellin worked as a police officer with the London Police Services (“LPS”). He had a successful career as a police officer and served as the Diversity Officer for the LPS. In 2016, he left the LPS. In January of 2017 he was hired to work for the mayor’s office with the City of London. He was hired by the City as Director of Organizational Strategy & Initiatives in November of 2017.

[5] Dr. Young was born on December 31, 1974. Mr. Marcellin and Julie Young met in 1989. At that time, Dr. Young was working as a babysitter for Mr. Marcellin and his previous partner. Dr. Young testified that she was 13 years of age at the time, but I note that the math would appear incorrect, or they met in 1988. In any event, Mr. Marcellin was only three and a half years older. Their romantic relationship started in 1992, when Dr. Young was 17 years of age. Mr. Marcellin had separated from his partner. Mr. Marcellin and Dr. Young were married in 1994. They have two children.

[6] Mr. Marcellin and Dr. Young separated in July of 2009. In February of 2010, Dr. Young commenced matrimonial proceedings. Her pleadings contained allegations of physical, mental and emotional abuse perpetrated upon her by Mr. Marcellin. These proceedings culminated in a lengthy final order dated March 1, 2011, which dealt with all issues and included a divorce.

[7] Dr. Young is now a university professor. She pursued graduate studies in sociology and completed research in gendered-based violence and victimization, which she attributes to her own experiences. Dr. Young remarried in October of 2017. Since many of the events in this case unfolded, she has been appointed by the Federal Government to the National Advisory Council on gender-based violence. She was subsequently appointed an expert to work on a national research study at the Centre for Research and Education of Violence Against Women.

[8] Since 1997, Megan Walker has acted as the Executive Director of the London Abused Women’s Shelter (“LAWC”). She retired in August of 2021, since the events in question in this proceeding. She is a lifetime advocate for the rights of women and girls. LAWC is a not-for-profit agency that provides free counselling, advocacy and support to women and girls in London. It serves more than 9,000 women and girls annually. One of its stated goals is to end the oppression of women and girls. LAWC staff will attend family and criminal court proceedings to support its clients.

[9] Kate Wiggins was the Executive Director of ANOVA. ANOVA operates a shelter for abused women in London. She retired in 2018 but continued to work as a “consultant”. Ms. Wiggins was an advocate and support for women who had been victimized in various settings, including intimate relationships, their workplaces or by strangers. Part of Ms. Wiggins’ duties included managing publicity and media relations, as well as lobbying efforts for ANOVA.

[10] Both Ms. Walker and Ms. Wiggins on this motion acknowledged that in their roles, they accept the allegations made by women who use their organizations as being true without question. Furthermore, when they were cross-examined on their affidavits, they both indicated that they do not believe that the family or criminal courts do enough to protect women who are victims of domestic abuse.

EVIDENTIARY RECORD:

[11] I glean the following chronology from my review of the extensive record. I note that at this stage of the proceedings, the court is not supposed to take a “deep dive” into the evidence. Furthermore, nothing I describe herein should be taken as having been conclusively proven for the purpose of the ultimate litigation.

[12] As part of his job duties with the City of London, Mr. Marcellin was the City Coordinator for a project entitled the “UN Women’s Safe Cities” initiative (“Safe Cities”). That program was designed to create awareness of the sexual violence and sexual harassment that women and girls experience in public spaces. Its aim is to create safer spaces in the community for women and girls. Mr. Marcellin’s role required him to liaise with ANOVA. The City also had a program entitled “I Step Forward”. The purpose of that program was to identify and end male violence. Mr. Marcellin was not part of that program.

[13] In August of 2017, Mr. Marcellin brought a motion to change his access to their two children and to vary his child support obligations. The timing of this motion was viewed by Dr. Young as suspicious given her pending nuptials to her new partner. Mr. Marcellin deposes that he brought the motion because his income had substantially decreased from when he worked as a police officer. During the proceedings, Dr. Young made allegations of domestic violence against Mr. Marcellin.

[14] As part of those proceedings, Dr. Young brought a motion to remove Mr. Marcellin’s lawyer as counsel of record. She alleged that the lawyer had a conflict of interest from having received confidential information from both parties in earlier proceedings. The date of that hearing was set to be March 21, 2018.

[15] Ms. Wiggins and Ms. Walker had been supporting and assisting Dr. Young with her family law proceedings since their onset in 2009. They originally met Dr. Young when she sought shelter at ANOVA when she separated from Mr. Marcellin in 2009. Dr. Young had divulged to them that during their relationship, Mr. Marcellin had been physically, psychologically, and economically abusive towards her.

[16] On March 6, 2018, Ms. Walker and Ms. Wiggins were invited to attend with Dr. Young at Dr. Young’s lawyer’s office. Apparently unbeknownst to the lawyer, Dr. Young, Ms. Walker and Ms. Wiggins decided that they would call Mr. Marcellin. According to their evidence, the purpose of the telephone call was to explain to him the negative impact that the court proceedings were having on his family. The three of them called Mr. Marcellin. Ms. Walker did all the talking. Dr. Young may have left the room while the call was made.

[17] Mr. Marcellin did not wish to speak to them without his lawyer. Ms. Walker, during her cross-examination, indicated that “we were trying to keep the lawyers out of it”. According to Mr. Marcellin, Ms. Walker became “hostile” and indicated that if he did not call her back by 5:00 p.m., she would go to the media or another person at City Hall. There is an email sent from Ms. Walker to Mr. Marcellin dated March 6, 2018, that states

“Dear Marcel,

As I stated in my phone call to you at 3:25 pm today, if I didn’t hear from you by 5:00 pm today with an update regarding a decision to meet with Kate Wiggins and me, we would meet with another individual from the City of London.

Those plans are now being confirmed.”

[18] In a further email sent later that day, Ms. Walker wrote:

“Dear Marcel,

Thank you for your call at 5:16 pm.

Kate and I had proposed a private meeting with you on March 14th to discuss a personal issue. Your calling inviting us to a meeting tomorrow afternoon at the office of your lawyer is not acceptable.

As stated in my earlier email (attached below), we have confirmed meeting plans with another individual at the City of London.”

[19] Mr. Marcellin spoke to his supervisor, the City Manager, Martin Hayward, about the telephone call. Mr. Marcellin also contacted the London Chief of Police to discuss what he considered to be intimidation by Ms. Walker and Ms. Wiggins. According to Mr. Marcellin, the Chief advised Mr. Marcellin to charge them with harassment.

[20] On March 12, 2018, Mr. Marcellin received an email from CTV News asking him to call them. No reason is provided for wanting to speak with him. On their cross-examinations, Ms. Wiggins, Ms. Walker and Dr. Young denied contacting the media.

[21] On March 16, 2018, Mr. Marcellin met with Dr. Annalise Trudell, who was ANOVA’s Gender Equity Consultant & Manager of Education, Training and Research. He knew Dr. Trudell because she was responsible for liaising with the City in regard to the Safe Cities Project. Mr. Marcellin discussed his marriage breakdown with Dr. Trudell and that he was concerned about being the lead on the Safe Cities Project given the optics involved. Dr. Trudell acknowledged that ANOVA had concerns but also told him that she was fine with continuing to work with him.

[22] On March 21, 2018, Dr. Young’s motion to have Mr. Marcellin’s legal counsel removed as solicitors of record was argued. Templeton J. heard the motion and reserved her decision.

[23] Mr. Marcellin filed a complaint of harassment against Ms. Walker and Ms. Wiggins with the LPS on April 17, 2018. The Woodstock police became involved so as to avoid any perceived conflict of interest given Mr. Marcellin’s previous employment with the LPS. The Woodstock police investigated and determined that no charges ought to be laid. In this action, Mr. Marcellin has sued the police, including both chiefs and unidentified police officers for improperly investigating his complaints.

[24] On April 26, 2018, Ms. Walker and Ms. Wiggins met with Mr. Marcellin’s direct supervisor, City Manager Martin Hayward. Also present during the meeting was Cathy Saunders, a city employee who had been asked to sit in on the meeting by Mr. Hayward. The meeting was audiotaped and there is a transcript. Mr. Howard’s notes from the meeting are also part of the record. Ms. Walker and Ms. Wiggins were unaware that the meeting was being audio-recorded.

[25] The meeting forms the basis of the plaintiff’s lawsuit as against Ms. Walker and Ms. Wiggins and I will describe it in considerable detail.

[26] The transcript discloses that during the meeting, Ms. Walker began by advising Mr. Hayward that there was a serious “personnel” issue that they wanted to discuss with him. It related to the I Step Forward Program. Ms. Walker described this as the “context of our discussion today”. She then turned the meeting over to Ms. Wiggins.

[27] Ms. Wiggins then stated as follows:

“…We have evidence based on the interactions of one of your employees with his former partner, and without sort of disclosing too much, the individual has been in, the woman has been in both our services and the issues date back to 2009. And this is now 2018 and the issue still persists, particularly in terms of court process. So there is a, sort of a continuous move to go to court which, you can only imagine, is very difficult on the former partner and I think ultimately very difficult for their two daughters because it’s acrimonious and it goes on and on and on. So in the last while there has been an issue in court. If there is a custody issue in court, that gets resolved, then there is another issue shortly after that over support or something else. It just goes on and on and on. And we’re hopeful that somehow you can use whatever influence you have to encourage movement forward, to encourage it to stop. And I mean, the former partner is married. The, Marcel is engaged to be married and yet it continues. And I know this sounds unusual, but I’ll just say that in my experience, my personal experience as well as my experience at work that some people just keep going and going and going with their specious actions towards their partner even long after the relationship because there are elements that have been completely and utterly obsessive. And somehow or other, we just want everybody to be safe, feel safe and clearly the ex-partner does not feel safe and I understand that completely. I mean, being in the shelter business for 16 years but you also have kind of personal experience as a teenager of a person who decided that I was the one, the one and only and I’ve seen the reactions of people who experience this sort of ongoing harassment and clearly the – Julie exhibits all the symptoms of someone who is suffering from trauma as a result of what she has experienced and what she continues to experience.

[28] Ms. Walker then noted that abusive men will utilize a number of tactics to gain and maintain control over the lives of women. She described that ultimate control means killing the women or killing the children. She noted that they see men utilize the court system to continue to control the woman. Ms. Walker also described that Mr. Marcellin speaks very poorly about his children. She noted that “the ultimate goal of men in these situations is to completely destroy the woman that dared to leave him”.

[29] A little later in the interview, Ms. Walker tells Mr. Hayward that they tried to reach out to Mr. Marcellin to just let him know that this is very difficult on his ex-wife and the children. She says “and so we wanted to meet with him and just say, look, we are not trying to take away your livelihood, but it needs to stop. You know, this has to stop”.

[30] Then, Ms. Walker and Ms. Wiggins described some of the evidence that they had to substantiate Dr. Young’s allegations. They described letters in which he apologized to Dr. Young, although they noted that he indicates the letters were written under duress. They also describe a letter from a CAS social worker who witnessed an argument between Mr. Marcellin and Dr. Young. They describe that the witness saw Mr. Marcellin push Dr. Young against a wall with such force it caused Dr. Young’s legs to give out. Later, they state that since 2009, his behaviour continues and has escalated to physical violence.

[31] I pause here to note that in fact the CAS social worker did not witness the violence but was only told about it by Dr. Young afterwards. Furthermore, the physical violence described by Dr. Young occurred in 1995 and 1996, thus there is no evidence that Mr. Marcellin had escalated to physical violence since 2009.

[32] Ms. Walker and Ms. Wiggins advised Mr. Hayward that they had Dr. Young’s permission to speak with him. They both confirmed during their cross-examinations that they were not asked by Dr. Young to have that meeting.

[33] During her cross-examination, Ms. Walker denied that they met with Mr. Hayward to try to influence him to have Mr. Marcellin stop the family law proceeding. This is directly in contrast to the transcript where Ms. Wiggins quite clearly asked Mr. Hayward to influence Mr. Marcellin to stop the constant court proceedings. Ms. Wiggins, on the other hand, admitted during her cross-examination that the main reason for the meeting was to ask Mr. Hayward to influence Mr. Marcellin to have the family court proceedings end (See: Q.367 Cross-examination of Ms. Wiggins).

[34] The City Manager met with Mr. Marcellin the day after this meeting. Mr. Marcellin told Mr. Hayward that the allegations were false or embellished. Ultimately, the record before me does not establish that Mr. Hayward took any significant steps as a result of the meeting with Ms. Walker and Ms. Wiggins.

[35] The police spoke with Mr. Hayward when they were investigating Mr. Marcellin’s allegations of criminal harassment against Ms. Walker and Ms. Wiggins. Mr. Hayward told the police officer that he “did have a personal situation with [Ms. Walker] last year—situation with an employee and I thanked her for coming in and I said that we are going to do the right thing—she said no…you’re going to do what I tell you or I will take you out”. For that reason, Mr. Hayward did not want to meet with them alone, so he recorded the conversation (thus the transcript) and had a city clerk there to take notes.

[36] The police spoke with Dr. Young during this investigation. Dr. Young denied that she knew that Ms. Walker and Ms. Wiggins were going to contact Mr. Marcellin or Mr. Hayward with regard to the court action. This seems inconsistent with her involvement with the telephone call from her lawyer’s office. However, she also said that she had no issue with them doing so.

[37] On May 1, 2018, Templeton J. released her decision dismissing Dr. Young’s motion to have Mr. Marcellin’s lawyer removed as counsel of record. Her reasons are part of the record. Templeton J. found that Mr. Marcellin’s lawyer had not received confidential information attributable to the solicitor client relationship that was relevant to the current proceedings and could be used against Dr. Young. Templeton J. released a cost endorsement in respect of this motion on January 18, 2019, ordering Dr. Young to pay costs to Mr. Marcellin in the amount of roughly $8,000.

[38] In August of 2018, the evidence supports that the eldest daughter of Mr. Marcellin and Dr. Young expressed interest in moving in with her father. As a result, one night, the daughter called Mr. Marcellin from Dr. Young’s home. Dr. Young did not want her to leave the home. Mr. Marcellin went to pick her up in his car. On the way, he telephoned 911 to alert them that he was picking up his daughter and that Dr. Young may contact them to complain. The daughter left Dr. Young’s residence to meet her father in his car. Dr. Young telephoned Ms. Wiggins first and then called 911. Ms. Wiggins advised her to call the police. During her conversation with police, Dr. Young asked for them to send someone from either Family Consultants or the Domestic Violence Unit. She disclosed to the officer who subsequently attended that Mr. Marcellin had physically assaulted her in 1995 and 1996. She described that in 1995 Mr. Marcellin shoved her into a wall. She described that in 1996, he strangled her after she threatened to leave him.

[39] There are LPS notes. The investigating officer spoke with Ms. Walker. Ms. Walker advised that she and Ms. Wiggins were willing to be witnesses. She also advised that they were afraid of Mr. Marcellin and would like to be included in a “non-association condition”. However, when the officer later spoke to Ms. Wiggins, she indicated that she was not fearful and did not wish to be added to the conditions.

[40] On August 17, 2018, the police charged Mr. Marcellin with two counts of assault as a result of Dr. Young’s allegations. In his affidavit, Mr. Marcellin indicated that this followed a “multi day campaign by Ms. Walker and Ms. Wiggins to influence the police charging decision, including constant calls, messages, requests to speak to the chief, threats to go to the media and threats about the bad press the police would receive if they did not do their bidding”. No evidence of such a campaign exists in the very substantial record before me.

[41] The day after the charges were laid, Ms. Walker emailed Mr. Hayward and advised him of the charges. She wrote:

“…I hope that pending the outcome of his trial, Mr. Marcellin be removed from these initiatives as well as any others involving male violence against women, gender equality and/or women’s human rights.”

[42] On August 20, 2018, Mr. Marcellin was reassigned from the Safe Cities and I Step Forward initiatives.

[43] Mr. Hayward gave a statement to the London Free Press when they contacted him. In that statement, he described the situation as involving “a personal matter”. Ms. Walker sent Mr. Hayward an email on August 21, 2018, expressing her disappointment with him describing male violence against women in intimate relationships as a “personal matter”. She was also critical of Mr. Hayward describing that there were “allegations” against Mr. Marcellin. In her view, that language minimizes the fact that he had been charged with two criminal offences of assault. She noted that these were extremely serious issues resulting in two serious charges of assault. In her view, they were not “allegations”.

[44] On August 22, 2018, the London Free Press ran a story entitled “London city hall official ‘reassigned’ after assault charges”. The story describes that Mr. Marcellin was taken off a project to make London safer for women as a result of two counts of assault against the same woman in 1995 and 1996. The source of the charges is noted to be from court documents obtained by the Free Press. Ms. Walker was quoted in the story as stating:

“In any situation, where somebody is in charge of co-ordinating or overseeing projects that have to do with women’s safety, I would be concerned if they were or had been charged with a criminal offence involving women.”

[45] After the assault charges were made public in the London Free Press, Ms. Walker sent a tweet announcing the charges to her Twitter followers. That tweet, accompanied by Mr. Marcellin’s photograph, read as follows:

“Marcel Marcellin, who works at @CityofLdnOnt in the city manager’s office and acted as chief of staff for Mayor Matt Brown for a short time last year, is charged with two counts of assault #ldnont”

[46] Ms. Walker also sent a second tweet, with a different photograph of Mr. Marcellin, on the same day that she sent a tweet concerning Bill Cosby and the charges that he faced. That tweet read:

“A top city official facing assault charges was flagged almost a decade ago as a person with allegedly violent tendencies, CBC News has learned. #ldnont”

[47] Mr. Marcellin alleges that it was racist for Ms. Walker to link him with Mr. Cosby, given that they are both black men.

[48] There are emails between Ms. Walker and Dr. Young in the fall of 2018. The subject line is “Re: Campaign”. The two women discuss a “wider strategy”. It certainly appears as if the purpose of the campaign is to have other women “use your voice and power to stop Marcellin from having any leadership or governance role overseeing the safety of women, children or other vulnerable people for three reasons…”.

[49] There are also emails from Dr. Young to many third parties. I refer to parts of one email as an example, as follows:

“Hello Dr. [redacted by me],

Yesterday, I spoke extensively with [redacted by me] and she recommended that I contact you. Kate Wiggins suggested the same.

It has been suggested to me that you may be able to conduct an assessment that may be admissible in family court. I have been advised that you are the leading expert on complex situations such as mine.

My name is Julie Young. My ex-partner was recently charged with assault (historical). We were married for 15 years and I experienced physical, emotional, psychological and financial abuse. The abuse has not stopped. He has continued to abuse me through the children and the family court system. We separated in 2009. He escalated when I remarried last October.

My challenge is that he has been able to manipulate the facts and make it appear that I am the problem. He has even been awarded costs. My lawyer does not understand domestic violence. I am not sure how to convey to the family court that all of his unnecessary legal action is essentially a continued effort to regain power and control.

When Megan Walker and Kate Wiggins tried to advocate on my behalf, he tried to have them investigated for criminal harassment. He knows the system and uses it to intimidate me. In this case, the officer interrogated me about how often I received counselling or spoke with anyone at LAWC. I was and remain terrified. I have a protection order. But I do not feel safe.

I would appreciate an opportunity to speak with you and hear any recommendations you may have about my situation.”

[50] Dr. Young also sent a letter dated October 5, 2018, to a City Councillor, to her Member of Parliament and to members of the London Police Services Board (later resent on November 18, 2018). In that letter, marked “CONFIDENTIAL”, Dr. Young describes in considerable detail the physical assaults and other abuse that she reports Mr. Marcellin committed on her in 1995 and then 1996. She concludes the letter with:

“The City of London temporarily reassigned Marcellin and appointed an alternate leader to oversee the Safe Cities initiative pending the outcome of the criminal proceedings.

I have been hesitant to speak about this publicly. It is upsetting to discuss domestic violence and its repercussions. Yet, I feel concerned and compelled as a citizen to say something knowing that a leader within our community is actively seeking opportunities to work with vulnerable citizens. I cannot remain silent any longer.”

[51] Dr. Young wrote similar letters addressed to the Mayor, the London Chief of Police, and to members of the London Police Services Board in March of 2019. She re-sent the letter from October 5, 2018, to a different member of the London Police Services Board. She also wrote a lengthy letter dated March 28, 2019, in which she described at length the abuse she suffered at Mr. Marcellin’s hands in a request for Pro Bono Legal Assistance. These letters were all marked “CONFIDENTIAL”. I believe that there were 17 letters in all.

[52] Mr. Marcellin was terminated from his position with the City on January 17, 2019. In a separate action, Mr. Marcellin has sued the City for wrongful termination. The City has taken the position in its pleadings that the allegedly defamatory comments had no bearing on their decision to terminate Mr. Marcellin. In its termination letter, the City states that the plaintiff was terminated without cause due to a decision to restructure the City Manager’s Office, resulting in the elimination of his position. Mr. Marcellin was presented with a compensation offer.

[53] The moving parties have adduced evidence from Mr. Hayward, from August of 2018, that indicates that he had concerns with Mr. Marcellin’s job performance, unrelated to the allegations made by the moving parties.

[54] Mr. Marcellin agreed to a peace bond in respect of the assault charges and to complete a Men’s Domestic Abuse Anger Program. The charges were withdrawn in June of 2019. There were no specific findings made and Mr. Marcellin did not agree to any facts. CTV reported the withdrawal of the charges accurately in a news story dated June 20, 2019. The Peace Bond expired December 31, 2019.

[55] On January 7, 2020, approximately one week after the expiration of the Peace Bond, Mr. Marcellin issued the Statement of Claim in this proceeding. He also held a press conference in which he announced that he had retained legal counsel and commenced these proceedings. He brought his eldest daughter to the press conference to observe.

LEGAL PRINCIPLES:

S. 137.1 of the CJA:

[56] Section 137.1 of the CJA provides as follows:

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.

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

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

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

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

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

[57] All parties agree that the leading cases with respect to s. 137.1 are 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 and Bent v. Platnick, 2020 SCC 23, decisions of the Supreme Court of Canada.

[58] The Supreme Court at the outset recognized that a s. 137.1 motion is not a determinative adjudication of the merits of a claim (See: Pointes Protection at paras. 37, 50, 52 and 71; Bent at paras. 4 and 74). The section is intended to screen out lawsuits that unduly limit expression on matters of public interest. The real issue is whether a plaintiff should have their day in court to potentially vindicate their reputation.

[59] The legislation requires that the moving party, the defendant in the action, satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. Should the moving party clear that hurdle, the burden shifts to the responding plaintiff to satisfy the motion judge that there are grounds to believe that there are grounds to believe that the proceeding has substantial merit, and the moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression (Pointes Protection, at para. 18; Bent at para. 76).

[60] In determining whether an “expression” relates to a matter of public interest, the Supreme Court has held that what is in the “public interest” should be given a “broad and liberal interpretation” (Pointes Protection, at para. 26; Bent at para. 81). At this stage of the inquiry, it is irrelevant as to whether the allegation in the expression is valid or not. There is no qualitative assessment of the expression at this stage (see: Pointes Protection at para. 28; Bent at para. 84).

[61] The proper standard to assess s. 137.1(4)(a) is “grounds to believe”. There must be a basis in the record and the law—considering the stage of the litigation—for finding that the underlying proceeding has substantial merit and that there is no valid defence (Bent at para. 87). This is not a high hurdle. As noted in Bent, at para. 88, any basis in the record and the law will be sufficient.

[62] The term “substantial merit” was defined in Pointes Protection (at para. 49) as “a real prospect of success”. The plaintiff does not have to demonstrate that success is likely, but only a prospect of success that tends to weigh more in favour of the plaintiff. The claim must be legally tenable and supported by evidence that is reasonably capable of belief.

[63] Côté J. in Pointes Protection, at para. 52, emphasized that due to the early stage at which motions under s. 137.1 are brought, the motions judge should engage in only limited weighing of the evidence and should defer ultimate assessments of credibility and other questions requiring a deep dive into the evidence to a later stage where judicial powers of inquiry are broader, and pleadings more fully developed.

[64] Subsection 137.1(4)(b) was described by Côté J. in Pointes Protection (paras. 61-62) and Bent (para. 139) as the “crux” of the analysis. The court must scrutinize what is really going on in the particular case before them. This allows a motion judge to assess how allowing individuals or organizations to vindicate their rights through a lawsuit affects freedom of expression and its corresponding influence on public discourse.

[65] At this stage, the plaintiff must demonstrate the existence of harm and the fact that the harm was suffered as a result of the expression (Bent, at para. 142). However, no definitive determination of harm or causation is required, rather the plaintiff must simply provide evidence for the court “to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link” (Pointes Protection, at para. 71).

[66] General damages, however, are presumed in defamation actions. In Pointes Protection and Bent, this was sufficient to constitute the requisite harm. It is the magnitude of the harm that is important in assessing whether the harm is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression (see Bent, at para. 144). This can include not only monetary harm, but reputational harm.

Defamation:

[67] According to the Supreme Court of Canada case of Grant v. Torstar, 2009, SCC 61, [2009] 3 S.C.R. 640, in order for an expression to be defamatory, there are three criteria that must be met:

1. the words complained of were published, such that they were communicated to at least one person other than the plaintiff.

2. the words complained of referred to the plaintiff.

3. 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.

Defences to Defamation:

[68] If the criteria for defamation are met, a defendant may have several defences available to escape liability. These include justification, fair comment, qualified privilege and responsible journalism (see: Torstar, supra). I will only address those defences raised on this motion.

Justification:

[69] The defence of justification requires a defendant to adduce evidence showing that the statement was substantially true. The focus is on the “sting” or main thrust” of the defamation. A defendant who has reported another person’s defamatory allegation about a plaintiff cannot succeed in a plea of justification merely by proving that the allegation was made (See: Galloway v. A.B., 2021 BCSC 2344 at para. 363).

Qualified Privilege:

[70] An occasion of qualified privilege exists if a person making a communication has “an interest or duty, legal, social, moral or personal, to publish the information in issue to the person to whom it is published” and the recipient has a corresponding interest or duty to receive it. The qualified privilege attaches to the occasion upon which the communication is made, not to the communication itself. This can be defeated if the dominant motive behind the words was malice, for example where the speaker was reckless as to the truth of the words spoken, or where the scope of the occasion of privilege was exceeded. Where the occasion is shown to be privileged, the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff (Bent, at para. 121).

Fair Comment:

[71] A defendant claiming fair comment must satisfy the following test:

(a) the comment must be on a matter of public interest;

(b) the comment must be based on fact;

(c) the comment, though it can include inferences of fact, must be recognizable as comment;

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

(e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. (see: Torstar, at para. 31).

ANALYSIS:

Preliminary Comments:

[72] Before I address the specific case before me, I wish to emphasize this court’s recognition of the blight on our society caused by intimate partner violence, which is primarily perpetrated by men against women. Abuse can take many forms, including physical, sexual, psychological, emotional and financial. Intimate partner violence can lead to the death of the victim. The effects of the abuse can be long lasting and severe, particularly for mental health. Victims of abuse do not share uniform characteristics. Similarly, there is no “one” form of abuser. Victims and abusers come from all racial, religious and socioeconomic backgrounds. It also must be acknowledged that some abusers can use the court system to further the pattern of abuse.

[73] Organizations such as ANOVA and LAWC play a vital role in supporting victims of abuse, again primarily women. Victims find shelter, food, clothing, and respite at times when they are at their most vulnerable. They also find moral and emotional support. These organizations also have a further important function—advocating for improvement with respect to the circumstances of women and girls. This includes having a role in shaping the administration of justice at all levels when it comes to issues of intimate partner violence.

[74] Ms. Walker and Ms. Wiggins deserve substantial credit for their lengthy careers and advocacy efforts on behalf of the women and children that they seek to support and protect.

[75] Ms. Walker and Ms. Wiggins, as advocates, admittedly accept as true any and all allegations made by women in respect of abuse. It is a crucial aspect of their responsibilities that they accept the veracity of the complaints of abuse. The court has no such luxury. Judges are not advocates but must consider both sides impartially. There are rules of evidence and victims have burdens of proof, both in family law matters and criminal matters, which they must meet. Thus, while Ms. Walker may abhor the use of the word “allegation”, the court must treat accusations of abuse as “allegations” until satisfied by the requisite proof that they have been proven true. The use of the word “allegation” is not meant to be hurtful or traumatizing or to minimize a person’s account of abuse. Whether or not Ms. Wiggins and Ms. Walker accept it, there are instances of false accusations.

[76] During Ms. Wiggins’ cross-examination, the following exchange transpired:

“Q. Ms. Wiggins, would you agree or, would you agree that you…Do you have faith in the family law justice system to properly adjudicate family law proceedings?

A. No.

…Q. But you do, but you do agree that you adequately do not believe that the family court system can adequately conduct proceedings in the family court process?

A. Given the nature of my work, that is correct.”

[77] There can be little doubt that the administration of justice fails some victims of abuse, perhaps too frequently. Intimate partner violence usually takes place in private, rarely with witnesses capable of testifying on behalf of the victim. While corroboration is not required, the criminal burden of proof beyond a reasonable doubt, and the presumption of innocence are fundamental tenets of our criminal justice system. Our criminal legal system accepts “wrongful” acquittals as an acceptable consequence in order to avoid “wrongful convictions”. Legislative steps have been taken, both in the criminal context and the family law context to ameliorate the treatment of victims, again predominantly women. The recently enacted provisions involving “family violence” in the Children’s Law Reform Act is a good example. Nonetheless, substantial hurdles remain.

[78] But, it remains critical that “justice” not evolve into “vigilante justice”. While it is important that abusers are held to account, there must be due process.

Do the Expressions Relate to a Matter of Public Interest?

[79] The plaintiff concedes that all of the conduct addressed in this motion involves “expressions” as defined in the legislation. I should, however, clarify the “expressions” that are being addressed in this motion. They are, with some lumping together, as follows:

(1) The statements made by Ms. Wiggins and Ms. Walker to Mr. Hayward and Ms. Saunders during the meeting of April 26, 2018;

(2) The reporting of the historical assault charges by Dr. Young to the police that resulted in the laying of charges against Mr. Marcellin;

(3) The comments made by Ms. Walker to Mr. Hayward, the media and on Twitter following Mr. Marcellin’s arrest;

(4) The 17 letters sent by Dr. Young to various individuals.

[80] The plaintiff raised potential communications between Ms. Walker, for example, and the media as giving rise to his claim. However, there is no evidence before me that Ms. Walker or Ms. Wiggins, other than what I have noted in (1) through (4) reached out to the media. There is only innuendo.

[81] The plaintiff’s concession that the definition of “expression” is met is well founded. All of the statements in issue would clearly meet the statutory definition of “expression”. They are communications made to persons. It is irrelevant under s. 137.1 whether the communications were publicly or privately made.

[82] As noted above, the defendants must establish that the expression relates to a matter of public interest. The court is to apply a “broad and liberal interpretation” of public interest. At this stage of the analysis, the court does not engage in a qualitative analysis of the expression.

[83] Further, it is not only defamation suits that are captured by s. 137.1 of the CJA. The only requirement in the legislation is that the “proceeding arises from” the expression. In his cross-examination, Mr. Marcellin confirmed that all of the claims against the moving parties arise from the impugned expressions.

[84] The plaintiff refutes that the expressions relate to a matter of public interest. He characterizes the expressions as relating to a strictly personal matter, a report of domestic violence made for the purpose of improperly influencing family law proceedings. I disagree. That characterization is too narrow.

[85] In Smith v. Nagy, 2021 ONSC 4265, Gomery J. found that a Facebook post alleging sexual, psychological, and emotional abuse constituted an expression that related to a matter of public interest. Courts in several other cases, including Mazhar v. Farooqi, 2020 ONSC 3490, aff’d 2021 ONCA 355, Bullard v. Rogers Media Inc., 2020 ONSC 3084 and Lyncaster v. Metro Vancouver Kink Society, 2019 BCSC 2207, all of which dealt with allegations of sexual assault, abuse, harassment or bullying, accepted that the expressions therein were matters of public interest. In all of those cases, the expression transcended the personal relationship between the parties.

[86] In this case, Mr. Marcellin was responsible for a program that directly impacted vulnerable women and children. It was an important position publicly. Intimate partner abuse involving persons holding such positions, in my view, clearly falls within the realm of public interest. The community should be concerned if a person holding such a position has, or is alleged to have, perpetrated violence against women, including non-physical violence. Further, I agree with Ms. Walker that intimate partner violence is not a personal issue. It deeply infects our society. At this stage, it is not relevant as to whether this court approves of, or disapproves, of the particular expression. It does not matter whether the expression is “desirable or deleterious, valuable or vexatious” or “whether it helps or hampers the public interest”, as long as it pertains to a matter of public interest (see: Mazhar, supra, per ONCA at para. 18).

[87] As noted by Gomery J., in Smith, supra, at para. 54, not every allegation made by a woman against a former male partner is a matter of public interest. However, in this case, Mr. Marcellin’s role with respect to the Safe Cities program undoubtedly elevates the interest from private to public.

[88] All of the impugned expressions arise out of the same context, allegations of intimate partner abuse against a person holding a position directly responsible for a program dealing directly with violence against women.

[89] Accordingly, I find that the defendant moving parties have satisfied their onus of establishing that the proceedings against them arise out of expressions relating to matters of public interest. S. 137.1(3) of the anti-SLAPP test is met.

Does the Action have Substantial Merit?:

[90] At the s.137.1(4)(a)(i) stage of the analysis, the onus is on Mr. Marcellin to show that there are grounds to believe that the proceeding has substantial merit. I reiterate that “grounds to believe” is not a high hurdle. There must be some basis in the evidentiary record and the law to believe that the proceeding has substantial merit.

[91] “Substantial merit” means that the claim has a “real prospect of success”. Mr. Marcellin does not have to demonstrate a likelihood of success, but a real prospect of success that tends to weigh more in his favour.

[92] As all of the causes of action pleaded against the moving parties originate from the impugned expressions, I agree with the moving parties that all of the causes of action may be dismissed via s. 137.1 of the CJA.

Defamation:

[93] In my view, all of the impugned expressions meet the criteria for defamation. The words complained of were “published” to at least one other person. In the case of the meeting, Ms. Walker and Ms. Wiggins spoke to Mr. Hayward and Ms. Saunders. Dr. Young reported the abuse to police officers. Ms. Walker emailed Mr. Hayward and tweeted to her followers. Dr. Young sent 17 letters out to other persons.

[94] Furthermore, none of the expressions were subtle about implicating Mr. Marcellin as the person about whom the expression was about. Ms. Walker and Ms. Wiggins were initially coy about referring to Mr. Marcellin, but let it slip fairly early during the meeting and were ultimately specific about whom they were referencing. The other expressions named him explicitly.

[95] Further, there is no question that the expressions would all be considered to detract from Mr. Marcellin’s reputation. The “sting” of the expressions is that Mr. Marcellin is an abuser, including physically, emotionally and financially. Most of the expressions went into considerable detail about the allegations made by Dr. Young. Any person accused of such actions would be held in low esteem. The particular expressions in this case allege criminal conduct on the part of Mr. Marcellin, which are even more damaging to a person’s reputation.

[96] Furthermore, damages may be presumed in cases of defamation.

[97] Surprisingly, only Ms. Wiggins/ANOVA seemed prepared to concede that Mr. Marcellin would be likely to establish a prima facie case of defamation. In any event, I find that there is clearly some basis in the evidence to establish that the claims for defamation have substantial merit. There is a real prospect of success that weighs in Mr. Marcellin’s favour.

[98] Having determined that one of the causes of action raised against the moving party defendants has substantial merit, the test under s. 137.1 (4)(a)(i) is satisfied and the motion proceeds to the next stage of the analysis.

[99] Therefore, I will address the other causes of action raised by the plaintiff in his Statement of Claim only very briefly. It was difficult to identify exactly what causes of action were being asserted. The pleadings often seemed to simply use descriptors to describe the conduct of which Mr. Marcellin complains. I have tried to read the pleading generously.

Intentional Interference with Economic Relations:

[100] The tort of intentional interference with economic relations was addressed by the Ontario Court of Appeal in Alleslev-Krofchak v. Valcom Limited, 2010 ONCA 557. Therein, the Court noted that an essential element of the tort is that the defendant intended to cause loss to the plaintiff. The moving parties here argue that there is insufficient evidence to establish that any of them intended to cause loss to the plaintiff--i.e., that his employment be terminated.

[101] It is difficult on a motion such as this to determine a party’s intention. The transcript from the April 26, 2018, meeting shows that Ms. Wiggins and Ms. Walker did not ask that Mr. Hayward do anything more than speak to Mr. Marcellin about the ongoing family law litigation. In assessing Dr. Young’s intention, I only consider the 17 letters with respect to this cause of action, as I find her reporting the historical assaults to the police to be lawful. Dr. Young would be negatively impacted if Mr. Marcellin lost his employment since he would be unable to make his child support payments. She did not ask for Mr. Marcellin to be removed from his employment in his letters.

[102] While an inference is possible that all three defendants would know that their actions could jeopardize Mr. Marcellin’s employment, it is not enough if the loss suffered by the plaintiff is merely a foreseeable consequence of the defendant’s actions (see: Allesley-Krofchak, at para. 50). Despite the evidence the plaintiff has adduced to attempt to demonstrate a “coalition” or a “campaign” against Mr. Marcellin, none of that evidence suggests that they intended to have him fired. On cross-examination, all three of the women denied that they wanted Mr. Marcellin to lose his job.

[103] There must also be a causal connection between the unlawful means and the loss suffered by the plaintiff. The evidence on this motion indicates that Mr. Hayward took no steps at all with respect to the information that he was provided by Ms. Wiggins and Ms. Walker.

[104] Furthermore, to qualify as “unlawful means”, the defendant’s actions cannot be actionable directly by the plaintiff and must be directed at a third party, who becomes the vehicle through which the harm is caused to the plaintiff (see: Allesley-Krofchak, at para. 60). In respect of Ms. Wiggins and Ms. Walker, the “vehicle” was Mr. Hayward, who did nothing with the information. More importantly, in respect of all three women, their actions are directly actionable by the plaintiff through the defamation claim. Defamation cannot therefore satisfy the “unlawful means” element.

[105] I find that the plaintiff has not met his burden of establishing that this cause of action has substantial merit.

Intrusion Upon Seclusion:

[106] This cause of action was recognized by the Court of Appeal in Jones v. Tsige, 2012 ONCA 32. The cause of action requires that the defendant acted intentionally, which includes recklessly. The defendant must have also invaded without lawful justification, the plaintiff’s private affairs or concerns. Finally, a reasonable person would regard the invasion as highly offensive, causing distress, humiliation, or anguish. Proof of harm is not an element of the cause of action.

[107] Dr. Young cannot be liable for intrusion upon seclusion because to the extent that the alleged abusive conduct constitutes a “private affair”, it was also her private affair. In respect of Ms. Wiggins and Ms. Walker, I find that they were invited into the private affair by Dr. Young. Dr. Young was entitled to seek support and Ms. Wiggins and Ms. Walker were professionally obligated to assist her.

[108] This cause of action assumes that matters of intimate partner violence are personal or private matters. I have already noted that issues of domestic violence and abuse are matters of public importance.

[109] The plaintiff has adduced no case where intrusion upon seclusion has been extended this way. I am not prepared to conclude that it should be. I agree with the moving parties that to do so would risk creating a chilling effect upon victims reporting abuse. The plaintiff has not satisfied his onus that this cause of action has a real prospect of success.

Negligent Investigation:

[110] This can be dealt with summarily. None of Dr. Young, Ms. Walker or Ms. Wiggins, as private citizens, had any duty to conduct any investigation with respect to the allegations of assault. The requisite relationship that exists between a police officer and a suspect is not found between a private citizen and a suspect (Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41).

[111] The negligent investigation cause of action has no real prospect of success as against these defendants.

Malicious Prosecution:

[112] The Supreme Court of Canada set out the elements of malicious prosecution in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 SCR 170. There are four necessary elements, as follows:

1. The proceedings must have been initiated by the defendant;

2. The proceedings must have terminated in favour of the plaintiff;

3. The absence of reasonable and probable cause;

4. Malice, or a primary purpose other than that of carrying the law into effect.

[113] The bar for establishing malicious prosecution is notoriously high so as not to discourage citizens from giving statements to the police.

[114] First of all, there is a dearth of evidence that Ms. Walker or Ms. Wiggins had any significant role in “initiating the proceedings”. Ms. Wiggins did advise Dr. Young to call the police. That is not, in my view, sufficient to suggest that Ms. Wiggins initiated the proceedings. Dr. Young may have reported the allegations. It is, however, the police that thereafter initiated the proceedings. Absent exceptional circumstances, the court will view the police officer who laid the charge as having initiated the prosecution. There is no evidence in this case that any of the moving parties pressured the police.

[115] In this case, it can hardly be described that there is an absence of reasonable and probable cause. Reasonable and probable cause is an “honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed” (See: Nelles). Although Mr. Marcellin has an explanation for the documents that have been produced, those documents include at the very least, incriminating statements attributable to him. Dr. Young’s evidence on its own satisfies this element. There is no need for victims to have their accounts of events corroborated to constitute reasonable grounds. bjective grounds for the prosecution appear to have existed.

[116] In my opinion, the plaintiff has not satisfied his onus in showing that the tort of malicious prosecution has a real prospect of success as against the moving parties.

Negligence:

[117] Upon scouring the Statement of Claim, I cannot even discern that a claim of negligence has been properly asserted against the moving parties. It has not been particularized. The claim reads as follows:

“Further and/or in the alternative, Marcel pleads that the Defendants J.Y., Ms. Walker, and Ms. Wiggins, ought to have foreseen that Marcel would have been affected by their conduct and as such owed him a duty of care. The aforesaid conduct therefore was negligent.”

[118] There is no reasonable prospect of success of the general claim of “negligence”.

Conclusion on Substantial Merit:

[119] I find that the plaintiff’s claim for defamation has a real prospect of success, subject to my analysis below regarding the defences. In respect of the other causes of actions mentioned within the Statement of Claim, I find that the plaintiff has not met his onus at the s. 137.1(4)(a)(i) stage. Therefore, the focus shall be on the alleged defamation, as it was during the oral argument.

Does the Moving Party Have a Valid Defence in the Proceeding?

[120] Again, the test is whether there are “grounds to believe” that the moving party has no valid defence in the proceeding. Once again, Mr. Marcellin need only adduce some basis in the evidence and the law to show that there is no valid defence to succeed through this part of the test.

[121] The legislation requires that there be “no” valid defence. As soon as at least one defence is established as being valid, the plaintiff will have failed to meet his burden with respect to that expression (see: Galloway, supra, at para. 506 and Pointes Protection, at para. 58).

[122] The defendants have put several defences “in play” in these proceedings, as follows:

Defendant Dr. Young:

(1) Justification;

(2) Defence of Qualified Privilege; and

(3) Failure to provide a Libel Notice.

Defendant Ms. Walker:

(1) Justification;

(2) Defence of Qualified Privilege; and

(3) Failure to provide a Libel Notice.

Defendant Ms. Wiggins:

(1) Justification;

(2) Qualified Privilege; and

(3) Fair Comment.

Defence of Justification:

[123] The defendants have all relied upon the defense of justification and have urged me to find in the context of this motion that the allegations of abuse made by Dr. Young are substantially true. In the same vein, Mr. Marcellin clearly wishes this court to conclude that the allegations by Dr. Young are false and/or embellished. An incredible amount of the evidence and cross-examination was devoted to that endeavour. In my view it is inappropriate for this court, on the evidence on this motion, to make any findings with respect to whether the allegations are substantially true.

[124] I return to Côté J. in Pointes Protection, at para. 52. At this stage in a proceeding, where the evidence is not fully developed, the motions judge is only to engage in a limited weighing of the evidence. Ultimate assessments of credibility and other questions requiring a “deep dive” into the evidence should be deferred to a later time, where the full panoply of judicial fact-finding powers is available.

[125] While there may be some cases where the truth or falsity of a statement may be easily ascertained, allegations of domestic abuse are difficult to determine, even on an extensive record as provided here.

[126] I have read the transcripts from the cross-examinations. I mean no disrespect but both Mr. Marcellin and Dr. Young had substantial shortcomings as witnesses. In particular, Dr. Young simply would not limit her answers to the question asked of her and was overly combative. I accept that she may have found being cross-examined to be re-traumatizing. Nonetheless, the manner in which Dr. Young testified impaired my ability to conclude on a written record that she was credible. On the other hand, Mr. Marcellin’s attempts to explain away apparent admissions in the documents are equally troubling. In this case, it would be imperative for the court to observe and hear the evidence viva voce, rather than simply reading a written record or transcript as I have done.

[127] Much of the documentation adduced to support Dr. Young was untested hearsay evidence. For example, does it make sense for marriage counsellors from 2009 to remember comments attributed to Mr. Marcellin a decade later? I would want to hear these counsellors cross-examined before placing significant weight on this evidence.

[128] Both sides argued that the Peace Bond and withdrawal of the charges supported their narrative. There was no guilty plea nor findings of guilt, so the outcome of the charges cannot be evidence of guilt, in my view. Neither can the outcome be considered an exoneration. At best, the resolution of the criminal charges is a neutral factor.

[129] It also necessary that I address the argument of Mr. Marcellin that the Order of Templeton J. dated March 1, 2011, does not contain any reference to family violence. This reflects a lack of understanding about how such orders come about in the family law context. Such orders would not typically include any findings by Templeton J. In fact, it is more likely that the parties reached a settlement and simply provided her with a draft order to sign. It would be rare that there would be a reference to family violence in such an order. No inferences can be drawn from this order whatsoever on this motion.

[130] I therefore decline to consider the defense of justification on this motion.

[131] Alternatively, Mr. Marcellin’s denials provide “some basis” in the evidence that the allegations of abuse are not substantially true. He has offered some plausible explanation about being coerced into writing the apology letter, for example. As is made clear in Bent, at para. 88, any basis in the record and the law will be sufficient.

[132] In Galloway, supra, Adair J. dealt with an anti-SLAPP motion under similar BC legislation in the context of defamatory allegations of sexual assault. In that case, at para. 74, it was acknowledged that the defence of justification could not be a “defence in play”. Adair J. explained that despite the size of the record, there was no possibility of determining the facts relevant to that defence, even on a grounds to believe standard.

[133] In Bullard, supra, the plaintiff had entered into a guilty plea in which he made admissions that demonstrated that there was substantial truth to the comments made. However, there were still substantial evidentiary gaps that satisfied the motion judge that the plaintiff had still satisfied his burden of establishing that the defence of justification might not succeed.

[134] I must emphasize that I do not wish the foregoing to be seen as a rejection of Dr. Young’s allegations, nor as an acceptance of them. Indeed, a judge could ultimately determine that Mr. Marcellin was abusive to Dr. Young. However, I cannot make such a finding on this motion.

Defence of Qualified Privilege:

[135] In my view, this is the best available defence for all of the moving parties on this motion.

[136] For the defence of qualified privilege to apply, the expression must be made by a person with a duty to make it, whether it be legal, social, moral or personal, to a person who has a corresponding duty to receive it (See: Smith, supra, at para. 79).

[137] I begin with the April 26, 2018, meeting between Ms. Walker, Ms. Wiggins, and Mr. Hayward. I admit to being considerably vexed about this meeting.

[138] I accept that given Mr. Marcellin’s role with the Safe Cities program, the goal of which was to help create awareness of sexual violence towards women, and the fact that Mr. Hayward was Mr. Marcellin’s boss created an occasion in which Ms. Wiggins and Ms. Walker would have a moral or social duty to speak to Mr. Hayward. He would have, in my opinion, a corresponding duty to receive this information. Thus, qualified privilege would appear to apply.

[139] However, there is no question that the meeting had at the very least, a secondary purpose. Ms. Wiggins has admitted, and the transcript can lead to no other conclusion, that another purpose for the meeting was to have Mr. Hayward influence Mr. Marcel to drop the family law proceedings. In fact, there is a basis in the evidentiary record for the trier of fact to conclude that this was the primary purpose for the meeting.

[140] It is true that in the introductory comments made by Ms. Walker reference was made to the I Step Forward program. Later in the meeting, Ms. Saunders revives the conversation about the I Step Forward program. However, there is a basis in the evidence to conclude that the I Step Forward program was a pre-text used by Ms. Walker and Ms. Wiggins to initiate the conversation with Mr. Hayward. Indeed, Ms. Wiggins’ admits that the main reason for the meeting was to ask Mr. Hayward to influence Mr. Marcellin to have the family court proceedings end.

[141] In my view, there is a basis in the evidence to conclude that qualified privilege would not attach to this occasion. Ms. Wiggins and Ms. Walker arguably exceeded their duties by requesting that Mr. Hayward intervene in the matrimonial proceedings. There is accordingly a basis in the record upon which to determine that the defence of qualified privilege is not a valid defence.

[142] Furthermore, Ms. Wiggins and Ms. Walker made statements that went far beyond the evidence that was available to them. They stated that the CAS worker had actually witnessed physical violence. They indicated that there had been physical violence since 2009, of which there is no evidence. They also held Mr. Marcellin responsible for all of the family court proceedings when it was Dr. Young who had initiated the motion to have Mr. Marcellin’s counsel removed from the record. In my view, this is a basis in the evidence for concluding that Ms. Walker and Ms. Wiggins exceeded the privilege by relaying this information for which there was no factual foundation.

[143] Additionally, the defence of qualified privilege is defeated by malice. In Foulidis v. Baker, 2014 ONCA 529, Watt J.A. for the court described malice in the context of qualified privilege, at paras. 49 and 54-57, as follows:

[49] …Malice can be established by proof of a knowing or reckless disregard for the truth, or by proof of an ulterior or indirect motive. A plaintiff can establish malice by drawing inferences from the language of the allegedly defamatory communication or by introducing extrinsic evidence.

[54] First, qualified privilege may be lost if the dominant motive for the statement was malice; Hill, at para. 144; RTC Engineering, at para. 18; and Botiuk, at para. 79.

[55] Second, to defeat a defence of qualified privilege, the dominant motive for publishing the statement must be actual or express malice: Hill, at para. 144; Botiuk, at para. 79; and Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 149.

[56] Third, malice means spite or ill-will, but also includes any indirect motive or ulterior purpose that conflicts with the sense of duty or mutual interest that the occasion giving rise to qualified privilege created: Hill, at para. 145; and Botiuk, at para. 79.

[57] Fourth, malice can also be established by showing a defendant spoke or wrote dishonestly or in knowing or reckless disregard for the truth: Hill, at para. 145; Botiuk, at para. 79; and RTC Engineering, at para. 18.

[144] As I have already stated, there is a basis in the evidence to conclude that Ms. Wiggins and Ms. Walker had an indirect or ulterior motive for this meeting—i.e., to convince Mr. Hayward to influence Mr. Marcellin to stop the family law proceedings. There is certainly a significant possibility that a court would determine that it was entirely improper for Ms. Wiggins or Ms. Walker to do so, even if they held a bona fide belief that Dr. Young had been abused by Mr. Marcellin.

[145] Further, there is other evidence on the record that goes to the issue of malice. It was improper for Ms. Walker and Ms. Wiggins to telephone Mr. Marcellin and give him an ultimatum to meet them or else they would go to his supervisor. He was perfectly entitled to want his lawyer present when he spoke with them. No lawyer would want their client, in the circumstances of the matrimonial proceedings that were then ongoing, to speak to the executive director of ANOVA and/or LAWC in the lawyer’s absence.

[146] There is also an email dated August 21, 2018, between Ms. Wiggins and Ms. Walker. In that email, Ms. Wiggins wrote:

“That’s for sure, very discouraging. I just spoke with Julie. This whole thing makes me feel sick for her but we have to stay the course. I think she has enough evidence to bury him”.

[147] Although this email was sent considerably after the April 26, 2018, meeting, the use of the phrase “bury him” is certainly suggestive of ill-will towards Mr. Marcellin upon which a court could base a finding of malice.

[148] It must be remembered that if Ms. Wiggins and Ms. Walker were really concerned about Mr. Marcellin being appointed to the Safe Cities project, they knew about the allegations well in advance of the April 26, 2018, meeting. He had occupied that position for several months. Instead, their meeting was timed around the family court hearing dates.

[149] However justified they felt about their actions, there is ample evidence in the record upon which a court could reasonably conclude that Ms. Wiggins and Ms. Walker far overstepped the proper boundaries and/or were motivated by malice. I find that there is a reasonable prospect that a trier of fact could conclude that the defence of qualified privilege would not apply to the April 26, 2018, meeting.

[150] I turn next to the reporting by Dr. Young to the police of the historical incidents of assault. In my view, Mr. Marcellin has failed to demonstrate that Dr. Young does not have a valid defence in respect of this expression. Qualified privilege applies when a person reports a criminal offence to a police officer. Dr. Young had the requisite and legitimate interest in reporting the offence, even if it was historical. The police officers clearly had a corresponding duty to receive the report.

[151] I now address the email from Ms. Walker to Mr. Hayward, dated August 18, 2018, in which she informs Mr. Hayward of the charges against Mr. Marcellin and suggests that he be removed from the Safe Cities project. In my view, qualified privilege would apply to this communication. Ms. Walker would have the requisite duty given Mr. Marcellin’s position with Safe Cities to notify Mr. Hayward, who would have the corresponding duty to receive this information. Unlike the indications of malice that were present at the time of the April 26, 2018, meeting, there are no such indications relating to this email. I also note that at this stage, Ms. Walker is simply advising Mr. Hayward of a fact that in this instance is true. Mr. Marcellin had been, in fact, charged with two counts of assault the previous day.

[152] With respect to Ms. Walker’s tweets, qualified privilege would not apply as she has posted these tweets to her followers at large. There would be no corresponding duty for her followers to receive this expression.

[153] However, in this instance, the tweet regarding the charges is once again true. Ms. Walker was simply pointing out the fact that Mr. Marcellin, who worked for the City of London in the city manager’s office had been charged. The charges were a matter of public record at this stage. Ms. Walker did not tweet any of the unproven allegations that Dr. Young had made. I conclude that the tweets would not appear actionable.

[154] Mr. Marcellin, as a black man, points out that the tweet was sent the same day as Ms. Walker chose to send a tweet concerning Bill Cosby, thereby linking the two. He wishes to have the court conclude that Ms. Walker was acting racially in doing so.

[155] Mr. Marcellin has raised the issue of race prominently in these proceedings. I cannot conclude that Ms. Walker was motivated by racial animus by posting a tweet about Mr. Marcellin on the same date that she posted a tweet about Bill Cosby. There are no other indications of racism in the evidence. The prime motivation for Ms. Walker’s actions in my view is that she accepts as true that Mr. Marcellin abused Dr. Young. While I cannot say for sure whether the two tweets are merely coincidental or deliberately coordinated, I find I do not need to make that determination for the purpose of the motion. Even if it was racially motivated, which I am not finding, I note that I have already determined that there is some basis in the evidence to determine that Ms. Walker acted with malice. Whether or not the tweet was racially motivated does not change that finding.

[156] I turn now to address the defence of qualified privilege in respect of the 17 letters authored by Dr. Young. Not all of the letters are in the same position legally.

[157] With respect to the email to Dr. [redacted], it is clear that Dr. Young is seeking assistance from a potential expert with respect to her family law proceeding. The doctor responds that he is unable to take on new cases and makes some other suggestions for doctors that might conduct an assessment for her. I conclude that the defense of qualified privilege would attach to this email.

[158] The other emails are more problematic. However, they are all marked CONFIDENTIAL. Dr. Young describes that she is writing with information relevant to evaluating his leadership within the City of London and specifically references any projects or programs concerning the safety of women and children. She then describes her allegations in significant detail. There are significant allegations contained within the letter.

[159] As noted earlier, the recipients of these letters include city councillors, members of the London Police Services Board, her Member of Parliament, the mayor, Pro Bono Legal Assistance and the London Chief of Police. The issue under consideration is whether this was an excessively wide group to disseminate the information so as to defeat the qualified privilege.

[160] There is a valid defence in respect of the Pro Bono Legal Assistance letter. Dr. Young is entitled to describe her story in the hopes of finding legal counsel.

[161] In Foulidis, supra, the Ontario Court of Appeal upheld the trial judge’s finding that a number of letters sent to members of City council with defamatory accusations involving the plaintiff were protected by the defence of qualified privilege. Those letters were marked “confidential”. The court noted that the letter was sent to a restricted constituency, the parties who would make the decision at hand. The letter was not disseminated to the world at large, for example, by dispatch to media organizations.

[162] Once again, the recipients of these letters all held prominent positions within the governing structure. Mr. Marcellin, although temporarily re-assigned, held a position in which it would be important for the recipients of these letters to understand the nature of the allegations that Dr. Young was making. She did not disseminate these letters to the world at large, but to a group that can reasonably be considered to have had a corresponding duty to receive such information.

[163] Although the letters contain a very substantial amount of information, Dr. Young was recounting her story. This is not a situation in which she was passing on information that was not first-hand. Although I am not prepared to determine whether the allegations are true or false, I am not prepared to say they are false. I find that she communicated appropriate information to appropriate people.

[164] Qualified privilege is defeated by malice. Despite the fact that Dr. Young and Mr. Marcellin were embroiled in family litigation, I do not consider that fact alone to constitute sufficient evidence of the requisite malice to defeat the qualified privilege.

[165] More troubling on the issue of malice are the emails between Dr. Young and Ms. Walker. The email dated November 18, 2018, speaks of a “campaign”. There is the early email between Ms. Walker and Ms. Wiggins referencing that Dr. Young had enough evidence to “bury him”. Notably, Dr. Young was not a party to that communication. There is evidence that Dr. Young had community members over to her home. She described these people as providing support. There is insufficient evidence in the record that any further actions were done as part of any “campaign”.

[166] The onus is upon the plaintiff at this stage. I find that he has not met that onus of establishing that there is a basis in the evidence or law to demonstrate sufficient malice so that the defence of qualified privilege would not apply to the letters in question. I conclude that the plaintiff has not established that the defence of qualified privilege does not apply to the 17 letters sent by Dr. Young.

Defence of Fair Comment:

[167] Ms. Wiggins also raises the defence of fair comment in respect of the April 26, 2018, meeting with Mr. Hayward.

[168] I find that there is a basis in the evidence to conclude that the defence of fair comment will not succeed. As in Smith v. Nagy, supra, at para. 75, the “sting” or truly defamatory content of what Ms. Wiggins told Mr. Hayward, that Mr. Marcellin was an abuser, were allegations of fact, not expressions of opinion. Some of those facts were patently incorrect, for example, that the CAS worker had witnessed the physical abuse, but presented as fact.

[169] Furthermore, the defence is defeated if the plaintiff establishes that the impugned comment was made with malice. Malice includes spite or ill-will but may also be established by showing that a comment was made with an indirect motive or ulterior purpose, dishonestly or in knowing or reckless disregard for the truth. As I noted above, there is a basis in the evidence upon which a court conclude that Ms. Wiggins (and Ms. Walker) were actuated by malice in pursuing this interview.

[170] That finding is sufficient for the purposes of s. 137.1 of the CJA.

The Defence under the Libel and Slander Act, R.S.O. 1990, c. L.12:

[171] Under the Libel and Slander Act, section 5, the plaintiff must give notice in writing to the defendant within six weeks of the alleged libel has come to the plaintiff’s knowledge. Pursuant to section 6, any action for libel shall be commenced within three months after the libel has come to the knowledge of the person defamed. These sections apply to libel in a newspaper or in a broadcast.

[172] Newspaper and broadcast are defined in the Act. “Broadcasting” means the dissemination of writing, signs, signals, pictures and sounds of all kinds, intended to be received by the public either directly or through the medium of relay stations. “Broadcast” has the same meaning.

[173] In my view, the only expression in this case that could fall within the relevant definition of “broadcast”, would be Ms. Walker’s tweets. Dr. Young’s 17 letters, for example, were not sent to the public, but to a select number of recipients.

[174] The moving parties relied upon Abdullahi v. Children’s Aid Society of Toronto et al, 2019 ONSC 3816, in which Perell J. dismissed a libel claim based on the plaintiff’s failure to comply with ss. 5 and 6 of the Act. The Court of Appeal upheld him on this point (See: Abdullahi v. Children’s Aid Society of Toronto, 2020 ONCA 225).

[175] However, in Abdullahi, the press released issued by the police announcing the charges against the plaintiff became a news article that was published in the Toronto Star and broadcast on television. Clearly, the Libel and Slander Act applied to that situation.

[176] The parties did not refer me to case law nor argue as to whether the Libel and Slander Act applied to Twitter. However, in Levant v. Day, 2017 ONSC 5956, Brown J. stated as follows, at paras. 44-46:

[44] As regards postings on Twitter, which are the subject of a libel action, there is no case law directly on point as regards whether such postings are subject to the Act. It has been recognized that an action in libel regarding a newspaper article, republished on the Internet, is subject to the Libel and Slander Act: John v. Ballingall et al, 2016 ONSC 2245, and see: Shtaif v. Toronto Life Publishing Co. Ltd, (2013) ONCA 405 (Ont.C.A). The case law relied upon by the defendant refers to online editions of traditional print newspapers and media broadcasts. It is the position of the responding party plaintiff that re-postings of traditional media broadcasts are distinguishable from publications and expressions made solely on social media sites such as Twitter.

[45] The legislative provision in the Act refers to libel in a newspaper or in a broadcast. There is no case law that interprets this provision to include social media. The defendant asks this Court to extend the Libel and Slander Act which uses these words and was originally intended to apply the media of the times to a new telecommunication technology. The defendant seeks to have this Court extend “broadcast” to social media such as Twitter.

[46] However, the parties have not provided this Court with any evidence regarding the nature, characteristics and functioning of the Twitter technology, nor have the parties provided any social policy reasons for interpreting or extending the meaning or definition of broadcast to include Twitter. The Court is not prepared to take judicial notice of these things. This Court is not prepared to make such a determination absent such evidence.

[177] The Ontario Divisional Court in Nanda v. McEwan, 2019 ONSC 125, held that a Deputy Judge was in error for finding that “Whatsapp” statements constituted a “broadcast” absent the proper evidentiary foundation.

[178] Since Levant and Nanda, other courts have refrained from determining whether technology such as YouTube and Twitter constitute “broadcasts” under the Libel and Slander Act (see: Caplan v. Atas, 2021 ONSC 670, Kam v. CBC, 2021 ONSC 13094 () and Vivo Canadian Inc. v. Geo TV, 2021 ONSC 3402).

[179] I too lack the evidentiary foundation to determine whether Twitter constitutes a “broadcast” and agree with my colleagues that to make such an important determination without the benefit of that evidence, and full argument, would be an error. It is sufficient for the purpose of this motion if I cannot therefore conclude that the Libel and Slander Act affords Ms. Walker a valid defence. In that case, a trier of fact might reasonably conclude that the Act does not apply to the Twitter posts (see: Levant v. Day, 2019 ONCA 244.

The Crux of the Analysis—s. 137.1(4)(b):

[180] I have concluded that the plaintiff has provided sufficient grounds to believe that Ms. Walker and Ms. Wiggins have no valid defence in respect of the meeting with Mr. Hayward on April 26, 2018. With respect to all of the other expressions, I have concluded that there is a valid defence. That latter finding is sufficient to result in the dismissal of the action as against Dr. Young.

[181] However, I intend the following analysis under s. 137.1(4)(b) to apply to all the expressions, in the event that an appellate court finds that I was incorrect with respect to the s. 137.1(4)(a) analysis. Further, the main thrust of my weighing exercise would remain intact should it be determined that I erred with respect to the causes of action that had substantial merit.

[182] As noted in Pointes Protection, at para. 62, s. 137.1(4)(b) acts as a “robust backstop” for motion judges to dismiss even technically meritorious claims if the public interest in protecting the expression that gives rise to the proceeding outweighs the public interest in allowing the proceeding to continue.

[183] It is a weighing exercise. Mr. Marcellin must satisfy the court that the harm likely to have been suffered by him as a result of the expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[184] The harm suffered by Mr. Marcellin must be assessed. The Supreme Court of Canada has described that harm encompasses both monetary harm and non-monetary harm. In terms of establishing monetary harm, the plaintiff need not furnish a fully developed damages brief (see: Pointes at para. 71).

[185] There is no question that damage to one’s reputation can be significant. Damages in cases of defamation may be presumed. Moreover, the allegations in this case involve criminal activity, which carries with it a greater stigma. Reputation is one of the most valuable assets that a person has.

[186] While the plaintiff does not have to provide a “damages brief”, there must be some basis in the record to attempt to gauge the magnitude of his harm. Mr. Marcellin’s affidavit is lacking in that regard. He describes that his career and life is ruined. He attributes losing his job with the City to the conduct of the defendants. He states as follows:

“13. Beyond the impact on my position with the City of London, these allegations, and the continued pattern of defamation by the Defendants, has resulted in my decades-long advocacy work being completely undermined. I am no longer able to pursue my advocacy role in the same way, as community groups are understandably reluctant to invite a speaker, trainer or advocate who themselves carries unresolved allegations of ongoing abuse.”

[187] Otherwise, there is very little evidence with respect to ascertaining actual damages. He has not adduced any evidence of community groups that used to retain him to speak. He has not adduced evidence of his income with the City. His CV discloses that he had made one presentation since 2014, occurring in 2017. I cannot conclude that giving presentations was an important aspect of his career.

[188] Furthermore, the expression must be causally connected to the damage. I disapprove of Ms. Wiggins’ and Ms. Walker’s attempt to have Mr. Hayward influence Mr. Marcellin. However, on the evidence, Mr. Hayward appears to have been wary of meeting Ms. Walker and Ms. Wiggins and thus, audiotaped the interview and had a witness present. In fact, on all of the evidence, Mr. Hayward did nothing with the information that they provided to him. There is no evidence led by Mr. Marcellin, or at all, that Mr. Hayward pressured him into changing strategies in the family litigation. There is no evidence that Mr. Marcellin changed his strategy or stopped the family litigation.

[189] Moreover, the transcript from the meeting shows that neither Ms. Wiggins or Ms. Walker asked for Mr. Marcellin to be terminated from Safe Cities or his employment. Mr. Marcellin was not removed from the Safe Cities program until Dr. Young reported the historical assaults and the police laid the charges several months later. By that time, the charges had been made public. Clearly, reassigning Mr. Marcellin from the program at that time had to be done. In its termination letter dated January of 2019, the City relies on restructuring as the rationale for terminating Mr. Marcellin from his position. The City offered Mr. Marcellin a severance package. Furthermore, Mr. Hayward’s notes demonstrate that he had some concerns with Mr. Marcellin’s work performance unrelated to anything Ms. Wiggins and Ms. Walker told him.

[190] Mr. Hayward appears to have been careful in his actions and not relied on the information from this meeting to take any steps with respect to Mr. Marcellin. There is no evidence that he contacted the media. In fact, it is my impression that he was somewhat dismissive of Ms. Walker.

[191] Mr. Marcellin, thus, may well have considerable difficulty demonstrating that he lost his employment at the City as a result of any of the expressions that are the subject of this action. Furthermore, he has mitigated his damages as he has found new employment. Accordingly, Mr. Marcellin’s monetary harm would appear to fall within the low end of the range. Given the dearth of evidence that Mr. Hayward took any actions based on the April 26, 2018, meeting, even Mr. Marcellin’s non-monetary harm appears fairly minimal. This is not Galloway nor Bent, from a damages perspective. In those cases, the plaintiffs could establish very substantial economic consequences. I have no such evidence from Mr. Marcellin who bore the onus.

[192] On the other hand, the public has a very strong interest in protecting the victims of intimate partner violence. This includes promoting expression and debate on the topic of sexual and domestic violence and abuse, and in not discouraging victims from reporting such violence and abuse. Victims, and their advocates, need to be able to recount their stories without undue fear of reprisal.

[193] The LAWC have led evidence on this motion about intimate partner violence. This evidence includes:

(a) The Chief Public Health Officer’s Report on the State of Public Health in Canada 2016—A Focus on Family Violence in Canada;

(b) A Statistics Canada Report entitled “Family Violence in Canada: A statistical profile, 2019” with a Release date of March 2, 2021;

(c) Final Report of the AD Hoc Federal-Provincial-Territorial Working Group Reviewing Spousal Abuse Policies and Legislation;

(d) A News Release dated December 21, 1983, entitled “Justice Minister and Solicitor General Take Steps Against Spousal Assault;

(e) Criminal Justice System Response to Men’s Violence Against Women Within Their Intimate Relationships—Final Report (2001) (I note that this was co-authored by Ms. Walker);

[194] While I reviewed this material, I do not intend to refer to it at great length. The following brief paragraphs do not do the material justice.

[195] One of the concerns raised by the Chief Public Health Officer’s Report is that family violence often goes unreported. Reasons for not reporting family violence are described as including fear, concerns about safety, stigma and not being believed. Some people wrongly assume that it is a personal matter or not important enough to report. According to the report, in 2014, only 30% of Canadians said that the police became aware of incidents where their spouse had been violent or abusive.

[196] In 2019, 79% of victims of intimate partner violence were women. Clearly, intimate partner violence affects women disproportionately.

[197] In Smith v. Nagy, supra, Gomery J. considered the importance of expression concerning sexual assault. She stated as follows, at para. 90:

[90] As noted thirty years ago in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 SCR 577, sexual assault, unlike other crime, is very often unreported. In light of this, there is a public interest in protecting expression and debate on the topic of sexual and domestic violence and abuse, and in not discouraging victims from speaking up. Victims of violence should not be inhibited from disclosing what they have experienced because they fear being sued for defamation. It is legitimate to ask whether allowing the lawsuit to proceed could prevent other women in Nagy’s situation from coming forward.

[198] These comments are clearly applicable to the case before me. Actions that are intended to prevent or discourage, or have the effect of preventing or discouraging, victims, primarily women, from reporting incidents or abuse must be scrutinized with caution.

[199] In Smith v. Nagy, Gomery J. ultimately concluded that Nagy’s allegations had had a devastating impact upon Smith (at para. 94). His career had been derailed, he had suffered the retraction of industry awards, been banished from industry events, past collaborators would not work with him, he had lost publishing contracts, he had lost most of his revenue stream from internet platforms and had his art removed from exhibitions. In short, Mr. Smith’s evidence concerning his damages appear to have been far greater than Mr. Marcellin has adduced. Further, I perceive that Mr. Marcellin will have great difficulty proving the requisite causal connection between the expression and the loss of his employment.

[200] Gomery J. allowed Smith’s action to continue.

[201] In Pointes Protection, at para. 80, Côté J. described additional factors that could be considered during this analysis, as follows:

[80] [T]he importance of the expression, the history of litigation between the parties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expression either by a party or by others, the defendant’s history of activism or advocacy in the public interest, any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award, and the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group or a group protected under s. 15 of the Charter or human rights legislation.

[202] A great many of those additional factors appear here. This action follows a lengthy history of family litigation, albeit one that was mutual. I have already discussed the potential chilling effect that allowing this action to proceed could have on victims of abuse. Victims of abuse are predominantly women and children, whom I consider to be vulnerable and entitled to substantial s. 15 Charter protection. Ms. Walker and Ms. Wiggins have a substantial record of activism and advocacy in the public interest.

[203] It is critically important to this case to consider the scorched earth nature of the within action. Not only did Mr. Marcellin sue Dr. Young, Ms. Walker and Ms. Wiggins, as well as LAWC and ANOVA, but he also sued the London Police Services, the London Chief of Police, the Woodstock Police Services and the Woodstock Chief of Police as well as unspecified officers of each force, alleging that they did not properly investigate Ms. Wiggins and Ms. Walker. Furthermore, the statement of claim contains 11 causes of action. In my view, the broad swathe of defendants included in this action demonstrates that the action has a significant retaliatory aspect to it.

[204] The analysis under s. 137.1(4)(b) is about the court scrutinizing “what is really going on in the particular case before them” (see: Pointes at para. 81).

[205] It is apparent to me that this action is the culmination of escalating family law proceedings between Mr. Marcellin and Dr. Young. Ms. Wiggins and Ms. Walker became involved as support and advocates for Dr. Young in the course of those proceedings. After a period of relative calm, Mr. Marcellin brought a motion to change both the access and amount of child support he was paying. I do not criticize him for doing so given that his income had lowered. It is troubling, however, that this coincided with Dr. Young’s re-marriage.

[206] Dr. Young reacted with a motion to remove Mr. Marcellin’s lawyer. Ms. Wiggins and Ms. Walker, inappropriately in my view, attempted to interfere in the litigation. They went beyond providing support to Dr. Young. They insisted that Mr. Marcellin meet them in the absence of his lawyer, or they would contact his supervisor. Mr. Marcellin then, in my view inappropriately, retaliated against them. He went to the London police and ultimately the Woodstock police to press charges against Ms. Wiggins and Ms. Walker for criminal harassment.

[207] The oldest child of the marriage then expressed an interest in moving in with her father. Mr. Marcellin was then charged with historical assault by Dr. Young. I am not prepared to determine the veracity of her allegations. I also do not dismiss them out of hand. There is evidence on this motion, although contested, that supports her allegations. The optics of the timing of the assault allegations are, however, poor given her daughter’s expressed wishes. The family litigation continued.

[208] Mr. Marcellin resolved his criminal charges, without a finding of guilt or an exoneration. He entered into a Peace Bond. Most disturbing, immediately upon its expiration, he commenced the within action. Further, he and his lawyers held a press conference to announce the action further amplifying public awareness of this matter.

[209] As noted, not only did Mr. Marcellin sue the moving parties, but he also retaliated against the Woodstock police for failing to charge Ms. Wiggins and Ms. Walker. Mr. Marcellin is essentially complaining that the police ought to have charged the women to silence them. He also sued the London police for charging him.

[210] This action can only, in my view, be considered vengeful intensification by Mr. Marcellin. In my view, that is “what is really going on here”. I do not believe the court should permit it to continue. In the context of this particular case, highly acrimonious family law matters ought not to diverge into defamation actions. I conclude that Mr. Marcellin has brought this action primarily for the purpose of silencing the moving parties.

[211] Allowing such vindictive actions to continue stifles victims and impedes the critically important work of organizations such as LAWC and ANOVA. In this case, I believe that it will also do irreparable harm to both Mr. Marcellin and Dr. Young, including their children. This action ought not to co-exist with or extend family law proceedings. It is a misuse of judicial resources. Quite simply, the ongoing litigation between Mr. Marcellin and Dr. Young needs to end.

[212] Although, I do not approve of Ms. Wiggins and Ms. Walker going to Mr. Marcellin’s supervisor, I cannot conclude that the harm likely to be or have been suffered by Mr. Marcellin as a result of their expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expressions.

[213] I do not wish to limit the ability of individuals to vindicate their reputations from unfounded allegations of abuse or other impropriety. Galloway, Smith v. Nagy and Lyncaster, are good examples of cases where the factors weighed in favour of permitting the action to continue. The results in this case are purely based on the specific facts and circumstances before me and are not meant to extend to all cases of reported abuse.

CONCLUSION:

[214] Section 137.1 of the CJA does not specify the categories of causes of action encapsulated by the provision. It speaks only of proceedings. S.137.1(3) describes a “proceeding arising from an expression made by the person”. All of the causes of action against Dr. Young, Ms. Wiggins, Ms. Walker, LAWC and ANOVA arise from the expressions and are caught by my decision (see: Rizvee v. Newman, 2017 ONSC 4024).

[215] For those reasons, I grant the motions and dismiss the action as against Dr. Young, Ms. Walker, LAWC, Ms. Wiggins and ANOVA.

[216] Costs of anti-SLAPP motions are governed by s.137.1(7) and (8). S. 137.1(9) authorizes the court to award damages where a proceeding is dismissed. If the parties cannot resolve issues of costs and or entitlement to damages, it is my preference to hear viva voce argument to resolve those issues. I note that not all defendants appear to have sought damages. I should not be taken as prejudging entitlement to costs or damages. Counsel should confer and attempt to arrange a hearing date through the trial coordinator. I may provide further directions on what written materials I would require.

[217] I reiterate that I have made no findings whatsoever with respect to the truth of Dr. Young’s allegations as against Mr. Marcellin.

Justice Spencer Nicholson

Date: October 17, 2022