Michael Deeb v. Najwa Zebian

Court File No.: CV-19-00001748-0000 Date: 2022-12-08 Superior Court of Justice – Ontario

Re: Michael Deeb, Plaintiff/Defendant by Counterclaim And: Najwa Zebian, Defendant/Plaintiff by Counterclaim

Before: Justice Spencer Nicholson

Counsel: J.K. Downing and M. Prosia for the Plaintiff, Michael Deeb S. Stewart, for the Defendant, Najwa Zebian

Heard: June 13, 2022

REASONS

NICHOLSON J.:

[1] It has been five years since the emergence of the "#MeToo" movement. Women have felt empowered to speak out in protest about sexual violence typically suffered at the hands of men in positions of power. Importantly, some men who have abused positions of power to sexually exploit women have been called upon to account for their misdeeds. I quote the following from "#MeToo Movement in Canada," an article published online by Nathalie Rech, originally on January 31, 2019:

The campaign was initiated in October 2017 by American actor Alyssa Milano, who wanted to make people aware of the magnitude of the problem (i.e., sexual assault) in American society. Milano therefore encouraged Twitter users, 'If you've been sexually harassed or assaulted write 'me too' as a reply to this tweet.'

These two words went viral in an unprecedented international movement protesting sexual violence against women. The hashtag was shared ("tweeted") nearly 1 million times in 48 hours, according to Twitter. The impact was even greater on Facebook; in less than 24 hours, 4.7 million Facebook users around the world made more than 12 million posts, comments and reactions about #MeToo.

Survivors saw this as an opportunity not only to share their intimate stories, in many cases for the first time, but also to publicly denounce their aggressors. The sheer volume of tweets and posts showed how violence against women has been rampant in personal and professional settings.

[2] The defendant, Najwa Zebian, now a poet, added her voice to the #MeToo chorus. The difficulty is that her #MeToo moment is considerably nuanced.

[3] This is an anti-SLAPP motion. The plaintiff, Michael Deeb, has commenced an action for defamation against Ms. Zebian. Ms. Zebian brings this motion to have the action dismissed pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 ("CJA"). She argues that her expressions relate to a matter of public interest and should not be stifled by this lawsuit.

FACTS:

[4] Any findings of fact that I make are for the express purpose of this motion only and are not intended to bind any subsequent trier of fact, should the action continue. A decision on an anti-SLAPP motion is "unequivocally not a determinative adjudication of the merits of a claim" (Bent v. Platnick, 2020 SCC 23, at para. 4).

[5] I note that this motion included a very substantial amount of evidence to sift through. In addition to several affidavits, the parties included substantial text messages that had been exchanged between them. Even if I do not specifically reference a piece of evidence, I have reviewed and considered all the evidence put before me.

[6] I also pause here to note that the Thames Valley District School Board ("TVDSB") retained an independent investigator, lawyer John McNair, to investigate the allegations of harassment levied by Ms. Zebian against Mr. Deeb. As part of that investigation, Mr. McNair obtained several of Ms. Zebian's text messages to her friends, which are part of the record before me.

The Parties:

[7] Michael Deeb has been a teacher in London since approximately 1997. He became a vice principal in 2005, working in that capacity in three different secondary schools in London from 2005 to 2012. He became a principal in 2012, working at two different schools within the TVDSB.

[8] Mr. Deeb has been heavily involved as a member of London's Muslim community. He has been a member of the London Police Services Board, the St. Joseph's Health Care Foundation, the Muslim Educator's Council, a member of the board of Huron College University and a member of the London Islamic School Board, among other organizations.

[9] Mr. Deeb has three children, the oldest of whom was entering her early teens during the relevant time period. He separated from the mother of his children in or around May of 2012. He subsequently re-married in December of 2017.

[10] Najwa Zebian is from Lebanon. She has completed two post-graduate programs at Western University and is a doctoral candidate in the area of educational leadership. She has worked in a variety of teaching and educational capacities for the Thames Valley District School Board.

[11] Ms. Zebian is also now an advocate for women's rights. Since the events giving rise to this action, she has written and given speeches about being silenced and finding one's voice in the face of abuse of power. She is also an accomplished poet, with several publications. In January 2016, she published a book of poetry entitled Mind Platter. In oral argument, Ms. Zebian's counsel indicated that she now has between 1.3 and 1.6 million social media followers worldwide.

[13] It is important to understand Ms. Zebian's cultural experiences. She describes that in the Muslim culture, young women are not permitted to be alone in the presence of men outside of their family. Ms. Zebian was raised by strict Muslim parents and adhered to Muslim tenets. Notably, however, Ms. Zebian has since the allegedly defamatory remarks, shed many of the cultural practices that she had previously observed.

The Parties' Relationship:

[14] Mr. Deeb and Ms. Zebian met in 2012. At that time, Mr. Deeb was in his early 40's and Ms. Zebian was twenty-one years of age. Ms. Zebian was completing her practicum at the high school at which Mr. Deeb was a vice principal. In June of 2012, Ms. Zebian asked Mr. Deeb if she could use him as a reference so that she could obtain a position on the TVDSB supply list. Mr. Deeb denies playing any role in assisting Ms. Zebian to obtain a placement.

[15] In late 2012, Mr. Deeb asked Ms. Zebian whether she would teach his daughters Arabic. Although Ms. Zebian was hesitant to accept this request, she eventually, after several requests, agreed to teach the girls Arabic. These lessons began in January of 2014.

[16] Ms. Zebian deposes that she did not know that Mr. Deeb was single until the first night that she gave a lesson to his daughters. She further deposes that she would often end up alone with Mr. Deeb after tutoring his daughters. She described that Mr. Deeb took an interest in her and her future goals. For her part, Ms. Zebian considered Mr. Deeb a mentor, as she wished to become a full-time teacher with TVDSB. Ms. Zebian describes that their conversations would begin with topics about future employment. According to her, Mr. Deeb would often steer the conversation towards personal questions that made her feel uncomfortable.

[17] Mr. Deeb denies that he and Ms. Zebian were ever alone during his daughters' tutoring sessions. He denies steering any of the conversations towards personal matters. He did attempt to give her professional advice and guidance with respect to her fledgling career as a teacher. He notes that Ms. Zebian never raised any concerns about her cultural faith and being around him.

[18] Ms. Zebian deposes that Mr. Deeb mentored her as she sought employment with the TVDSB. In March 2014, he arranged a meeting to prepare her for her interview. Prior to the meeting, she says that he asked her what perfume she was wearing. Mr. Deeb's affidavit does not address that allegation.

[19] In April of 2014, Ms. Zebian was hired by the TVDSB. Around that time, Ms. Zebian also became involved with various community groups in the Muslim community in which Mr. Deeb also participated. She describes that his messages and calls became more frequent and inappropriate. He had given her his personal phone number. Their conversations often involved discussions about his ex-wife and his feelings of loneliness. He would inquire about her personal life. Mr. Deeb admits in his affidavit that over time, their conversations shifted from being just about work and the Muslim community groups to more personal matters. He alleges that she would ask him about the circumstances of his divorce. She would also often send him poetry. He describes these discussions as mutual, occurring in person, over the phone or via text message.

[20] In June of 2014, Mr. Deeb asked Ms. Zebian out for coffee. Ms. Zebian declined, in part due to her cultural norms and in part due to concerns about it being inappropriate professionally. She deposed that she explained her reasons to him. Although he professed to understand, she states that he renewed the invitation a couple of weeks later.

[21] Mr. Deeb denies having any romantic interest in Ms. Zebian. They never went on a date, and they never had any type of physical relationship. Mr. Deeb denies making any sexually suggestive remarks to her, in person, on the phone or via text. He does admit to asking her to go for coffee in June of 2014 to discuss community activities. He states that the invitation was innocuous. She declined and explained the reason for not going. He apologized to which she responded, via text, was "You didn't offend me. You asked me and I told you I can't because it's not something I do. How would you know unless I told you?"

[22] According to Ms. Zebian, during a phone call on June 23, 2014, Mr. Deeb opened up to her about his feelings, indicating that he could not control himself or his feelings around her. She responded with a text dated June 24, 2014, which included a passage that implied that not pursuing certain opportunities could lead to feelings of regret and wonder about missing out on happiness.

[23] Ms. Zebian subsequently sent a text on July 3, 2014, with another poetic passage, which I agree suggests that she was looking for a romantic personal relationship with Mr. Deeb. Further similar texts followed in subsequent weeks.

[24] During the same time frame, Ms. Zebian's texts to her friends and confidants unequivocally suggest that she was interested in a personal romantic relationship with Mr. Deeb. By way of example, on August 20, 2014, Ms. Zebian texted her friend, "I'm holding back. Let him take a step forward if he wants to".

[25] During an exchange of text messages between Ms. Zebian and another friend, on August 24, 2014, Ms. Zebian disclosed that Mr. Deeb had children. Her friend texted:

Just try to really think hard about this Hun if you guys talk and he tells you straight out and very clearly that he does want to marry you then you need to think long and hard about the obstacles and what the future might look like for both of you. If he's already this busy with work and with his kids then you need to realize that's probably not going to change even if you guys do end up being together. If he's showing that he cares now some of the time then after marriage things might not stay that way you know and he might not be as present in the marriage.

I know you care for him and he cares for you but that's not always enough of a reason to battle with everyone in order to be together. And this might not even be where he's going. He might not want to get married again at least not in the near future.

[26] Mr. Deeb deposes that the topics of a personal relationship and marriage had never been discussed between him and Ms. Zebian prior to the exchange of these texts. He denies being aware that she had developed those feelings and claims that he did not share those feelings for her.

[27] The texts between Mr. Deeb and Ms. Zebian continue. In a text dated September 16, 2014, Ms. Zebian indicates that she has difficulty drawing a line between what she should and should not share. Mr. Deeb responds "Yes, But in this profession one has to make sure there is that clear distinction". Mr. Deeb deposes that this was an attempt by him to tell Ms. Zebian to keep their relationship professional.

[28] Mr. Deeb deposes that by October of 2014, he was concerned that Ms. Zebian had an interest in a personal relationship with him. He denies sharing those feelings and attempted to maintain some distance from her. He states that she sent him many text messages to which he did not respond.

[29] Ms. Zebian states that on November 9, 2014, Mr. Deeb once again made his feelings clear. According to her, they were sitting in his car, and he made comments and remarks, which in retrospect were sexually suggestive in nature. She says that she expressed to him her confusion with his sporadic attention and asked him what he wanted from her. He responded that he liked her honesty and sincerity. He liked how her face looked and her blue hijab and pink lipstick. She says that while he spoke, he was scanning her body up and down. According to her, he said that there were other things he liked about her, but if he said them out loud her face would turn red "like a tomato".

[30] According to Ms. Zebian, approximately a week later they spoke again and decided to get to know each other more on a personal level. However, she says two weeks later, she attempted to end things, knowing that whatever was going on, it was wrong professionally and personally.

[31] Mr. Deeb's evidence about November 2014 is considerably different. He states that Ms. Zebian became even more direct with him about wanting a long-term relationship, to which he indicated that he was not interested. He deposes that he told her that a personal relationship between them would never work due to their age gap and the fact that he already had children.

[32] Mr. Deeb does describe a parking lot incident, although he says it occurred on November 22, 2014. He says it occurred while they were standing in the parking lot, not sitting in a parked car. He told her that he was not interested in a romantic relationship. She expressed a desire to be in his life and to have a personal relationship.

[33] Meanwhile, the texts continued. Ms. Zebian asks Mr. Deeb to meet her at Chapters to talk. It appears that he declined to do so. There are text messages from November 28, 2014, between the two parties. She wrote:

I'm not ready. My brother's wedding is in two weeks and I can't afford to be feeling this down. You gave me hope over the last three weeks and I can't handle it going away right now.

[34] Mr. Deeb responded, "I think you gave yourself—what you are referring to as hope." Ms. Zebian responds, "I mean hope that something could work out. I'm just struggling. And I can't talk about it to anyone."

[35] The texts continued. A fair conclusion to draw from the texts adduced on this motion is that Ms. Zebian initiates most of the text communications with Mr. Deeb. His responses are brief, often curt. Ms. Zebian's texts are often replete with emotion and requests to speak or for him to text back. She would send him several texts in a row, many of which appear to go unanswered.

[36] In early February of 2015, Mr. Deeb transferred to the school where Ms. Zebian was frequently supply teaching. From that time until June of 2016, Ms. Zebian supply taught at the high school at which Mr. Deeb was the principal. They would see each other frequently at work.

[37] Ms. Zebian indicates that in February of 2015, Mr. Deeb told her that he was struggling financially due to his matrimonial proceedings and the associated legal bills. There is an exchange of texts to that effect. He told her that he was behind in his support obligations. She offered to lend him money, which he initially declined. The texts demonstrate that Ms. Zebian was persistent in her offers to assist him financially. He continued to decline her offer to lend him any money. However, he ultimately accepted her offer. Mr. Deeb admits to borrowing money from her, describing it as "quite a low point in my life".

[38] Ms. Zebian states that after she loaned him the money, this was followed by a period of him ignoring her.

[39] On March 20, 2015, Ms. Zebian texted Mr. Deeb and asked if he would sit and talk with her about life. He replied "no". She persisted to text him and he ultimately responded "No. It's not appropriate". Her texts continued into the next day. He told her that he "did not appreciate her tone" and then "stop it please." Her texts persisted and he texted, "the response is stop please." When she asked what he wanted her to stop, he responded "All of it." She then sent him a further 20 texts over the next couple of days, without any response from him. On March 26, 2015, he wrote, "take a step back. A deep breath and remember what we discussed please." She responded:

That's thoughtful of you. I allowed myself to feel my feelings fully, so I was able to detach from them and recognize why I need to let go of them. The mistake I made was taking things personally. I'm past that. I see it all clearly. I got my immunity. Trust me. I'm ready for friendship. It's about time.

[40] Despite that text, Ms. Zebian texted him the next day to describe to him a dream that she had about him. He responded "Najwa. You're starting again". She says, "That was me stopping."

[41] In her affidavit, Ms. Zebian describes that on March 22, 2015, she hand-delivered to his home an "emotional hand-written letter", in which she asked him for another chance. That letter was not produced by either party. She says that Mr. Deeb told her that she needed to "gain immunity from him". When she inquired as to what he meant, he said that she needed to "cleanse the idea of him out of my system, and emotionally detach myself from him." He told her that she had to stop contacting him.

[42] She deposes that on March 28, 2015, she texted Mr. Deeb for what she thought would be the last time. She wished him the best in his life and thanked him for what he had done for her. She says that she intended to stop sending him messages.

[43] However, on March 28, 2015, Mr. Deeb sent her a message simply stating, "much better". She did not respond. The next day, he texted her again, asking her if she was awake at 5:04 am. A couple of days later, on April 1, 2015, Ms. Zebian was in Mr. Deeb's office. She says that he called his mother and had a loud telephone conversation in front of her, which he again spoke of his financial difficulties. Ms. Zebian deposes that the next day, he asked her again for money. This time she did not loan him any money. However, the texts regarding the "second" loan indicate that Ms. Zebian initiated the conversation about the money. Mr. Deeb did tell her that he continued to be under financial pressure. She inquired when he would be able to repay her, should she be able to get some money for him. He told her "I'm not going to take anything from you. But thank you for offering". Within that text chain, he did not ask her for the money.

[44] Ms. Zebian asked him to repay the money she had previously loaned him. She says in response he threatened to never speak to her again. He blocked her phone calls over the summer of 2015, ignored her emails and, according to her, berated her at every interaction. He returned $2,400 of the $2,600 he had borrowed from her in December 2015. On the other hand, Mr. Deeb states that he repeatedly attempted to return her money to her, but she refused. He denies ever using or spending any of the money. He returned the exact bundle of money that she gave to him.

[45] In April of 2015, Mr. Deeb claims that Ms. Zebian attended at his home unannounced and uninvited. She had brought him a gift. He says that he refused the gift and told her not to visit his home again. He then began keeping a journal to document what was transpiring. He alleges that there were five other occasions when she came to his home uninvited between May 2015 and March 2016.

[46] Mr. Deeb deposes that he began to keep track of all the times that Ms. Zebian would come to his office at school. From June 2015 to June 1, 2016, he claims that there were approximately 20 visits by her to his office because he would not respond to her texts. He swears that she would routinely wait outside his office, sometimes sitting on the floor, waiting for him. He says that he asked her to leave but she would refuse. Sometimes he would leave his own office.

[47] As part of the responding material on this motion, there is an affidavit from vice principal Matthew Bradacs. He confirms that Ms. Zebian was frequently waiting outside Mr. Deeb's office for over an hour after she finished teaching. This was on a nearly daily basis.

[48] There were no messages from Ms. Zebian in July of 2015. However, they resumed in August of 2015. Mr. Deeb says that he did not respond to any of them. He deposes that he blocked her phone number, but she started texting him from a new phone number. He swears that he had to block at least five different phone numbers.

[49] In September of 2015, Ms. Zebian avers that Mr. Deeb contacted her family physician and three family members who were also employees of the TVDSB to discuss her, without her consent. Mr. Deeb indicates that he did ask her family members to have her stop contacting him.

[50] According to Mr. Deeb, on March 13, 2016, Ms. Zebian dropped off a printed note in his home mailbox which stated, "I will start telling my version of the story as you have started telling yours." The following day, she dropped off a collection of poetry in his home mailbox, which included a handwritten letter. The handwritten letter, a key piece of evidence in my view, was attached as an exhibit to his affidavit. That letter makes clear that Ms. Zebian is pursuing Mr. Deeb romantically. She writes, for example:

• "I wish I could wrap my heart around you to make you feel how I feel about you";
• "I love that Mike as a human being who deserves all the love in the world. Mike, come back please. I don't want to hate you."
• "You said that if I went back to the person you knew, you'd give me a chance".
• "I want to love the sadness out of you. Give me a chance to be the person I was before this mess. In any capacity you want."

[51] Ms. Zebian included with that note excerpts from her published book of poetry, Mind Platter. Thus, Mr. Deeb believes that Ms. Zebian, in her affidavit, mixed up the years where she dropped off her personal hand-written letter, referenced above, and that this letter was the hand-written letter to which she referred in her evidence.

[52] Ms. Zebian applied for a long-term teaching position in April of 2016 at the school where Mr. Deeb was the principal. She was not even awarded an interview. She indicates that the teacher that was hired was lower in seniority than her. She demanded an explanation from Mr. Deeb, who asked her to leave his office, or he would call the police.

[53] A meeting was organized in June of 2016 with the Imam of the London Muslim Mosque. The meeting lasted two hours. It was hoped that the meeting would result in a resolution of their situation. Mr. Deeb deposes that Ms. Zebian agreed to stop contacting him about personal matters. Two weeks later, Ms. Zebian sent an email to Mr. Deeb which he took to be confirmation that she was moving on with her life.

[54] In September of 2016, Ms. Zebian accepted a contract at a different school.

[55] On November 15, 2016, Mr. Deeb states that Ms. Zebian attended his office, advising that she "wanted to make peace". According to Mr. Deeb, she demanded a further in-person meeting, and threatened to report him to the TVDSB if he refused. He indicated that he would not agree to a further in-person meeting as the meeting with the Imam had been intended to resolve all their issues on a final basis.

[56] The next day, Ms. Zebian filed a harassment complaint against Mr. Deeb with the TVDSB. The complaint alleged that she was the victim of harassment and that she felt unsafe working at the TVDSB.

[57] As noted, the TVDSB retained a lawyer, Mr. John McNair, to investigate the allegations and author a report. Mr. McNair interviewed both Mr. Deeb and Ms. Zebian. He interviewed a number of third parties, including both of the vice principals at the school.

[58] Mr. McNair authored an 80-page report on his investigation dated January 6, 2017. He concluded that Mr. Deeb had not committed harassment in the workplace. Mr. McNair stated as follows:

It would have been in error to dismiss this relationship between the parties on the basis that "nothing happened" between them, as Deeb declared. There was indeed no physical or sexual conduct, or even any overt sexual advances by the Respondent. It must be acknowledged, however, that behaviour on the part of the Respondent which might be seen as relatively innocuous—inquiring if the Complainant might go for coffee with him, for example—took on wholly different significance for a conservative, unmarried Muslim woman. Zebian reminded the writer several times that her family would have been outraged by her personal communications with this older, divorced man. As a prominent member of the Complainant's own Muslim community, Deeb must have been aware that this growing closeness with Zebian, and their continuing intense dialogues, represented an enormous development in Zebian's life. This cultural dimension to Zebian's complaint was a critical feature in understanding her view of Deeb's conduct, and his appreciation of how such conduct would be perceived by the Complainant, I recognized.

The Complainant found herself drawn into what she euphemistically described as an "emotional attachment" for the Respondent. Those feelings eventually overcame her anxiety about the potential reaction of family and community to the point that she was clearly poised to regard Deeb as suitor and husband. It was at that point that the Respondent drew back.

[59] In terms of the loans, Mr. McNair described that Mr. "Deeb's subtle solicitation and acceptance of the money did him no credit, on any view of the matter. Zebian was right to regard it, in hindsight, as manipulative and unfair. I saw it in precisely the same way."

[60] Finally, Mr. McNair addressed the end of their relationship, as follows:

This was fundamentally a case about a young woman's feelings of rejection, I concluded. Zebian could not or would not accept that the Respondent no longer wished to pursue their personal relationship in the manner which he had initially signalled. Though the Complainant was truthful and forthright in describing events which occurred, I could not avoid observing that she was unable to see the Respondent's actions, or her own reaction to them, in any realistic light. She was the victim of horrible abuse by the Respondent, the Complainant maintained. I had no doubt that she sincerely believed that assertion to be true. Her description of the Respondent as a "monster" who verbally attacked her during their office confrontations was overblown and exaggerated, I found. While Deeb was undoubtedly angry and exasperated with her efforts to contact him, I was not persuaded that his words or actions were abusive or intimidating.

This was a person in the throes of intense personal turmoil, I recognized. I was not persuaded that the Respondent's efforts to block her communications, or dissuade her from coming to his office, constituted behaviour that was objectively humiliating or degrading. At least one of the vice-principals formed the view that Deeb had become the focus of an obsession on the Complainant's part. I could not disagree with the use of that term to describe Zebian's state of mind.

[61] In relation to the allegation that Mr. Deeb prevented Ms. Zebian from obtaining even an interview for a long-term teaching position, Mr. McNair determined that Ms. Zebian had mis-filed her application and thus was not considered for the posting.

[62] Ms. Zebian was not happy with the outcome of Mr. McNair's investigation. She emailed the TVDSB and indicated that she had been wronged by the result because the report depicted her as "an immature obsessive lovesick girl". She maintained that Mr. Deeb had manipulated and abused her. She stated that he was unethical and inhumane towards her. Ms. Zebian prepared a lengthy, 42-page rebuttal letter to Mr. McNair's report.

[63] The TVDSB instructed both parties to have no further contact with each other. Mr. Deeb was not disciplined. Ms. Zebian was permitted to continue to accept placements at the school where Mr. Deeb was the principal.

[64] Mr. Deeb deposes that Ms. Zebian did not abide by the TVDSB directions. When she was working supply at his school, she would continue to regularly come by his office after she was done teaching. He states that he would leave his office or close the door to avoid contact with her. This is corroborated by the vice-principal, Matthew Bradacs. Furthermore, he deposes that she ran up to him in line at a local café and stood behind him. As she attempted to speak to him, he left the café to comply with the Board's instructions.

[65] Mr. Deeb also alleges that Ms. Zebian contacted his first wife for the purposes of convincing her to say that she had been abused by Mr. Deeb. Ms. Zebian admits she contacted his first wife, but only to determine if it was true that she had been abused. The first wife refused to speak with her.

Facebook Post #1:

[66] On June 26, 2017, Ms. Zebian posted on her Facebook account a six-page typed "essay" setting out the history of her relationship with Mr. Deeb. The post was up for four days before the TVDSB asked her to take it down, which she did. Less than 1000 people "reacted" to it.

[67] For the most part, this letter sets out the same version of facts that Ms. Zebian has set out in her affidavit. She uses words such as "abuse", "manipulate", "threat" and "gas-lighting" to describe Mr. Deeb and his behaviour. She wrote that:

He knew what cultural and religious boundaries he was crossing from the start. He did it any way. He dug for deficiencies in my life and filled the gaps. He groomed me and after that, exploited me emotionally, then financially, then emotionally again, and professionally.

This is essentially the case of a man in a position of power who abused his power and authority to exploit someone in a vulnerable position. He knows the weight of his position. He knows the customs of our culture and religion. He knows that we don't just engage in relationships without a serious commitment, so he knew much better than to expect a relationship with me without having a serious intention. After much contemplation and letting go of my naivety, I am confident that he either wanted sex or money. Once he knew that he could not get the former, he went after the latter until he could no longer get it, then disposed of me.

[68] I note that Mr. Deeb's name does not appear anywhere in her essay. However, she described that she was referring to a principal at a high school in London.

Facebook Post #2:

[69] On December 18, 2017, Ms. Zebian posted another story on her Facebook page. This coincides with the time that Mr. Deeb was getting remarried. This post was "reacted to" by approximately 566 people. This story is four pages in length. The introductory paragraph states: "Before this story seeps into my 2018, allow me to share my #metoo story."

[70] Within the story, Ms. Zebian describes two other women who contacted her and described their own similar experiences with Mr. Deeb.

[71] After describing that she will not continue to carry fear anymore, she wrote:

His name is Michael Deeb. He holds multiple positions of power.

I have experienced forms of power abuse, gendered violence and financial abuse from Mr. Deeb, a man who, in such high positions of power, is held to the highest level of trust and respect. I have no doubt that his behaviour is unbecoming of a person who holds the positions of power that he does. I've struggled with naming this whole experience. I wonder, is it sexual harassment? Is it power abuse? Is it emotional and financial exploitation? Is it implanting fear and intimidation? Is it psychological manipulation? Or is it a bit of everything? What do I have the right to name it?

[72] Ms. Zebian then repeats her version of events. However, she adds claims such as "I do not perceive this as amounting to anything less than sexual harassment". She includes a link to the Ontario Human Rights Tribunal's website and its definition of "sexual and gender-based harassment". She also describes that he manipulatively asked for money after she had indicated to him that she wanted him to stop contacting her.

The Press Stories:

[73] On February 2018, HuffPost Canada posted a story entitled "Michael Deeb, London Principal, Accused of Misconduct by Teachers, Former Student". The article includes two photographs of Mr. Deeb. The article states that two teachers and a former student are accusing Mr. Deeb of inappropriate behaviour including sexual harassment and abusing his authority.

[74] Another teacher, "Sarah" is quoted at length in the story as making allegations against Mr. Deeb that included that he discussed inappropriate matters of a sexual nature with her. The story notes that an investigation was completed, and it was agreed that Mr. Deeb would never supervise Sarah again.

[75] Ms. Zebian is then referenced and was interviewed. Her picture is in the story as well. Quotes from her interview and Facebook post are featured prominently throughout the piece.

[76] Another woman, under a pseudonym, then told HuffPost that Mr. Deeb was her vice-principal while she was still a student. She alleges that Mr. Deeb began sending her texts late in the evenings about not being sexually satisfied with his wife and feeling lonely. He allegedly flirted with her. There was, however, no sexual contact.

[77] In addition to this story, which was appended as an exhibit, there were several other news stories in late December 2017, and the beginning of 2018, aired by CBC news and The National. In those stories, Ms. Zebian is described as naming Mr. Deeb as abusing his power.

[78] Interestingly, a different reporter with the London Free Press wrote an article which included a statement that Mr. Deeb had spurned Ms. Zebian's advances. Ms. Zebian attempted to force the reporter to amend the article. Ms. Zebian posted "I am very disappointed with the reporter who published this article without even checking her facts. She wrote 'he admits she had feelings for him and wanted a relationship but Deeb spurned her advances,' which is not true". She then wrote "I don't easily say this, but to the reporter from The London Free Press, shame on you for this biased article which reeks of victim blaming and shaming". The reporter subsequently amended her article.

Ms. Zebian Speaks:

[79] Mr. Deeb served Ms. Zebian with a notice of intent to sue for defamation a day prior to her being scheduled to speak at the 18th annual International Women's Day Breakfast for the London Abused Women's Centre. In a newspaper article, Mr. Deeb's lawyer (not counsel on the motion) advised that there would be "people at the event…taking copious notes" of her comments.

[80] By Notice of Action dated May 3, 2018, Mr. Deeb commenced an action against Ms. Zebian. The claim was for $250,000 for general and special damages for defamation, $50,000 for aggravated damages and $50,000 for punitive damages. In the subsequently issued Statement of Claim, Mr. Deeb increased these figures to $300,000 and $100,000 (x2). He also sought an injunction requiring the removal of Ms. Zebian's posts. Mr. Deeb did not reference the June 2017 Facebook post in his statement of claim, instead suing in respect of the December 2017 Facebook posts and her subsequent comments to the media giving rise to their publications.

Consequences to Mr. Deeb:

[81] As a result of the December 2017 Facebook post, Mr. Deeb was automatically suspended by the London Police Services Board as they initiated an investigation. He would typically receive an annual stipend from the Board in the amount of $6,800. He was also asked to resign from the Huron College Board and the St. Joseph's Foundation Board in December 2017. In 2018, he was asked to stop teaching his diversity course at Fanshawe College.

[82] Mr. Deeb sought psychological counseling in December 2017. He began taking anti-depressants in May of 2018.

[83] Mr. Deeb continued to work as a principal until late January 2018. He was placed on paid leave by the TVDSB once he became the subject of an OPP criminal investigation. He was interrogated by the police on April 5, 2018, for approximately two hours. He was formally charged with sexual assault and sexual exploitation based on allegations by a different woman. It is Mr. Deeb's belief that she came forth due to the December 2017 Facebook Post. Those charges were withdrawn by the Crown in October 2020.

[84] Mr. Deeb obtained employment working in the education sector of the United Arab Emirates. This job pays approximately $60,000 less than his job as a principal had paid him.

LEGAL PRINCIPLES RELATING TO ANTI-SLAPP MOTIONS:

S. 137.1 of the CJA:

[85] 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.

[86] Both 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, supra, decisions of the Supreme Court of Canada.

[87] I reiterate 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). Rather, the section is intended to filter out lawsuits that unduly limit expression on matters of public interest. It must be determined whether a plaintiff should be permitted to have his day in court to potentially vindicate his reputation.

[88] 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. Ultimate assessments of credibility and other questions requiring a deep dive into the evidence should be deferred to a later stage where judicial powers of inquiry are broader, and pleadings more fully developed.

[89] The legislative test 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. If the moving party successfully clears that hurdle, the burden then shifts to the plaintiff to satisfy the motion judge that there are grounds to believe that (1) the proceeding has substantial merit, and (2) the moving party has no valid defence. If those two pre-requisites are met, the plaintiff must still satisfy the court 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).

[90] 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, there is no qualitative assessment of the expression. Whether the allegation in the expression is valid or not is irrelevant (see: Pointes Protection at para. 28; Bent at para. 84). The question is whether "some segment of the community would have a genuine interest in receiving information on the subject" (see: Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391, at para. 4). Finally, merely "referring" to something of public interest is not the same as "relating" to a matter of public interest (see: Dent-X Canada v. Houde, 2022 ONCA 414, at para. 10).

[91] Subsection 137.1(4)(a) of the test refers to "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 suffice.

[92] 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.

[93] 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. At this stage 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.

[94] 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).

[95] General damages 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.

APPLYING S. 137.1 TO THIS CASE:

S. 137.1 (3)--Expression of Public Importance:

[96] There can be no issue that the impugned Facebook posts constitute an "expression" as defined in the CJA. Mr. Deeb conceded the point in oral argument, and I find that Ms. Zebian's posts are "expressions" under the CJA.

[97] Mr. Deeb does not, however, concede that these expressions relate to a matter of public interest. It is Mr. Deeb's position that the posts relate solely to a private dispute between himself and Ms. Zebian. He relies on Echelon Environmental Inc. v. Glassdoor Inc., supra, and Dent-X Canada v. Houde, 2022 ONCA 414, two cases in which the Court of Appeal upheld motion judges' decisions that the expressions at the centre of those cases were not related to matters of public interest.

[98] Ms. Zebian relies on Mazhar v. Farooqi, 2020 ONSC 3490, appeal dismissed 2021 ONCA 355, and Smith v. Nagy, 2021 ONSC 4265. In those cases, the motion judges accepted that although the expressions were about matters occurring directly between two private citizens, the expressions transcended that relationship and related to broader public interests.

[99] It must be recalled that the Supreme Court of Canada has held that the public interest is to be given a broad and liberal interpretation. The Court of Appeal in Dent-X and Glassdoor makes it clear that the motion judges were entitled to a measure of deference, given that what is a matter of public interest is a finding of mixed law and fact. Those cases did not, however, restrict in any way the generous and expansive fashion in which "public interest" is to be defined (see: Pointes Protection, at paras. 28-30).

[100] I accept that not all #MeToo posts automatically relate to a matter of public interest. However, in this case, Mr. Deeb held a prominent position of trust within the London community and within the London Muslim community. This is not the stage to weigh the qualitative value of the expression. Members of the London community, particularly the various stakeholders involved with the TVDSB, as well as the Muslim community, would be more than simply curious about the subject matter in this case. Rather, whether a principal or board member, as the case may be, has sexually harassed or perpetuated gender-based violence transcends the private interests of the parties and is a legitimate area for public concern. In my view, the expressions in this case are such that a substantial segment of our community would have a genuine interest in receiving this information, involving serious allegations concerning a person holding a prominent position of public trust.

[101] I am confident that the public's perception of Mr. Deeb following the disclosure of Ms. Zebian's allegations led to the various organizations removing Mr. Deeb from their boards. Clearly those organizations perceived that the public cares deeply about such allegations.

[102] Accordingly, I find that Ms. Zebian has met her s. 137.1(3) onus. The impugned expressions relate to a matter of public interest.

S. 137.1(4)(a)(i)—Substantial Merit:

[103] The onus now shifts to Mr. Deeb to establish that his claim has substantial merit. Again, the test is whether it has a "real prospect of success", which tends to weigh more in favour of him than Ms. Zebian. Furthermore, to meet his burden, Mr. Deeb need only demonstrate that there are "grounds to believe" that the claim has substantial merit.

[104] This is a defamation case. In Grant v. Torstar, 2009, SCC 61, [2009] 3 S.C.R. 640, the Supreme Court of Canada described that in order for an expression to be defamatory, there are three criteria that must be met. Thus:

1. the words complained of must be published, such that they were communicated to at least one person other than the plaintiff.
2. the words complained of must refer to the plaintiff.
3. the impugned words must be defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person.

[105] Thus, Mr. Deeb must demonstrate that the words complained of were communicated to at least one other person than himself, that the words complained of referred to him and that the impugned words would tend to lower his reputation in the eyes of a reasonable person.

[106] I find that all three branches of the test for defamation are met in this case.

[107] Clearly, Ms. Zebian's two Facebook posts were viewed by at least several hundred people. She posted them to the world at large. Furthermore, Mr. Deeb was specifically named in the December 18, 2017 post. Finally, Ms. Zebian used phrases such as "gender violence", "financial abuse" and "power abuse". Ms. Zebian speaks of being afraid. I find that even the use of the #MeToo hashtag in association with Mr. Deeb's name lowers his reputation since it is associated with sexual harassment and sexual assault. There can be no question that the December 2017 Facebook posts would lower Mr. Deeb's reputation.

[108] I conclude that Mr. Deeb has demonstrated that his claim for defamation has substantial merit.

S. 137.1(4)(a)(ii)—No Valid Defences:

[109] A defendant has several defences available to escape liability in defamation actions. Ms. Zebian asserts four defences here: justification, fair comment, qualified privilege and responsible communication on matters of public interest. I will assess each of these in turn.

[110] Again, the test is whether Mr. Deeb has shown that there is some basis in the record and the law for rejecting all four defences. If even one defence should slip through this filter, then the motion must be granted as Mr. Deeb will not have met his onus. He must demonstrate that there is "no" valid defence.

Justification:

[111] The defence of justification requires a defendant to adduce evidence showing that the statement was substantially true (Torstar, at para. 33). The focus is on the "sting" or main thrust" of the defamation. In Bent, at para. 107, it was also noted that the defence fails if the publication has only accurate facts, but the sting of the libel is not shown to be true. Furthermore, partial truth is not a defence (Bent, at para. 108).

[112] On this motion, the bulk of the evidence was devoted to demonstrating that Ms. Zebian's allegations were true (her position) or not true (his position). Given that the court is not to take a deep dive into the evidence, this is the type of case in which it is very difficult to determine whether the defence of justification is likely to succeed. I expressed a similar view in Marcellin v. LPS, 2022 ONSC 5886 (at paras. 123-130) and this was Adair J.'s view in Galloway v. A.B., 2021 BCSC 2344.

[113] Both parties have relied heavily on findings made by the independent investigator, Mr. McNair. Mr. McNair's report is useful, in my view, on this motion because he clearly did undertake a "deep dive". However, it must be remembered that in the event that this matter proceeds to trial, it would be up to the trier of fact to determine the truth of the allegations, not Mr. McNair. The court would not be bound by his findings and determinations. The trier of fact may conclude that there was sexual harassment that occurred in this case, even if Mr. McNair did not.

[114] The "#MeToo" hashtag carries very serious connotations. At the time of the defamatory posts in this case, the #MeToo hashtag was associated with sexual assault, primarily. In my view, the sting of the defamatory posts is that Mr. Deeb harasses and abuses women, sexually, emotionally and financially. However, as I indicated at the outset, Ms. Zebian's #MeToo moment is very nuanced. There were no sexual acts in this case, or, arguably, even any overt sexual advances.

[115] Ms. Zebian has included an article in her material that describes the #MeToo movement from the perspective of minority women. It is entitled "Beyond the Bright Lights: Are Minoritized Women Outside the Spotlight Able to Say #MeToo?, by Neha Kagal, Leah Cowan and Huda Jawad. The authors of the article argue that women of different racial and religious backgrounds experience sexual harassment and violence differently, such that the traditional #MeToo movement does not neatly encapsulate their experiences. They note that Muslim women, for example, are often forced to suffer in silence because of their cultural and religious norms and the punitive power dynamic that exists in their culture. For them, "the stakes of saying #MeToo are simply too high and the possibility of support or healing is minimal (within the article by N. Kagal et al, at p. 142).

[116] The second article is entitled "Violence in the Lives of Muslim Girls and Women in Canada", by Krista Melanie Riley. That article explores how Muslim women and girls in Canada experience violence, as well as stereotypes regarding their experiences.

[117] In considering the motion before me, it must be remembered that a very large percentage of the population understands #MeToo through Western society's lens. Therefore, when a person uses that hashtag, many readers are likely to assume that it is being invoked to mean very specific behaviour. Even the article cited by Ms. Zebian uses #MeToo primarily in the context of sexual violence against women and girls. The conduct described in the first article is, simply, far worse than the alleged conduct by Mr. Deeb.

[118] I recognize that Ms. Zebian's strict adherence to the Muslim faith, which Mr. Deeb was aware of, could bring behaviours that might not fit the traditional definition of harassment into the #MeToo movement's sphere. Wary of taking a "deep dive", I have nonetheless attempted to consider how Ms. Zebian's faith might make her hesitant to report harassment. Ultimately, it must be remembered that she was not silenced. She went to the TVDSB, voiced her complaints and a thorough and impartial investigation ensued. In fact, Ms. Kagal's article, cited above, describes how important access to formal complaint procedures in workplaces is for minority women (p. 145).

[119] The difficulty in this case is that Ms. Zebian employs labels to describe Mr. Deeb's conduct that a reasonable person, of any culture, religion or race, might conclude do not apply to his behaviour. Some of the descriptions used could be considered to be exaggerated. Some of her post appears to be inaccurate factually. For example, Ms. Zebian paints a picture of Mr. Deeb pursuing her, when there is some basis in the evidence before this court to conclude that she was the aggressor, at least later in the relationship. Furthermore, she speaks repeatedly of him manipulating her for money. I recognize that Mr. McNair thought that there was some truth to that assertion. There may well be truth to that assertion. However, she has omitted from her posts the relatively small amount of the loan, that she insisted upon giving it to him and that he repaid it. She also suggests that these overtures for money came after she had asked him to have no further contact with him, which does not appear to be true at all. She also depicts that his demand for money came after her heart-felt letter, but that does not appear to be accurate. Is this really "financial abuse"? Maybe, but maybe not.

[120] Context does matter, and, in my view, Ms. Zebian has omitted important details that would allow her audience to decide which labels appropriately attach to Mr. Deeb's behaviour. I agree with counsel for Mr. Deeb that Ms. Zebian removed items from her December 2017 post that had been included in her June 2017 post that provided greater context for the reader and arguably resulted in a more balanced presentation of the facts.

[121] Mr. Deeb has filed evidence which, if accepted, would provide a basis for the trier of fact to conclude that the allegations of abuse are not substantially true, corroborated by many of Ms. Zebian's texts and letters.

[122] By using the #MeToo hashtag, Ms. Zebian invoked certain assumptions about Mr. Deeb's conduct in her audience. Not all readers would consider the nuances in play here, nor take the time to look up the definition of "gender violence" on the UN website. In short, I find that Ms. Zebian's posts may have gone too far, and there is a narrative that the trier of fact could accept that would cast doubt on the truth of Ms. Zebian's allegations. It is certainly not clear to me that Mr. Deeb's conduct should fall under the #MeToo umbrella and that he should be lumped in with those that have been appropriately "outed" for their misconduct. I conclude that there is some basis in the evidence and law to conclude that the defence of justification would fail. Mr. Deeb has met his onus with respect to this defence.

[123] I want to be clear. I am not foreclosing the possibility that a trier of fact could conclude that Mr. Deeb's conduct is properly labelled as sexual harassment, or that he was being financially manipulative. I simply conclude that there is a basis in the evidence to conclude that the sting of Ms. Zebian's Facebook posts is not substantially true.

Qualified Privilege:

[124] A further defence to a defamation action is qualified privilege. If the occasion in which the statement is made is privileged, then the defendant may publish with impunity, remarks which may be defamatory and untrue about the plaintiff (Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), at para. 44). 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 (Bent, at para.121).

[125] This defence 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.

[126] The defence of qualified privilege is defeated if the information is communicated to an inappropriate or excessive number of people. Publication via the internet will rarely be considered necessary or reasonable. Furthermore, the privilege does not extend to reporting uncorroborated allegations of criminal wrongdoing to the general public as opposed to law enforcement or investigative authorities (see: Canadian Standards Association v. P.S. Knight Co. Ltd., 2019 ONSC 1730, at para. 58).

[127] Thus, I can address this asserted defence quickly. In this case, as Ms. Zebian exhibited the December 2017 Facebook post to an excessively large group of people, there is no occasion of qualified privilege. There is a basis in the evidence and law for concluding that this defence will not prevail.

Fair Comment:

[128] 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).

[129] In order for the defence to apply, there must be a factual foundation for the comment made. If the factual foundation is unstated, or unknown, or turns out to be false, then the defence of fair comment is unavailable (see: Simpson v. Mair, 2008 SCC 40, at para. 31).

[130] As noted by Lebel J., in Simpson, at para. 71, it is not always easy to distinguish comment from a statement of fact. What is comment and what constitutes fact must be determined from the perspective of the audience (Simpson, para. 27, per Binnie J.).

[131] In Torstar, at para. 31, McLachlin C.J.C. described that a statement of opinion included any "deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof".

[132] In order to rely upon the defence of fair comment, the defendant must show that a statement is recognizable as comment, not fact. In my view, the "sting" of the Facebook posting is that Mr. Deeb was abusive to Ms. Zebian, and, in her post, Ms. Zebian asserts that this occurred as a matter of fact. The allegations are capable of proof and are not opinion. She may couch the language, from time to time, in the shroud of opinion, for example, by positing rhetorical questions as to whether Mr. Deeb's conduct constituted harassment. Nonetheless, she is clearly asserting that a set of factual circumstances occurred.

[133] Furthermore, as I described earlier, there is reason to question the veracity of at least some of the underlying factual foundation here.

[134] Mr. Deeb also argues that there is some basis in the evidence for a finding that Ms. Zebian was acting with malice, which negates any defence of fair comment. Malice can be found where the speaker knows that they are not telling the truth or is reckless as to the truth (see: Bent, at para. 136).

[135] In this case, Ms. Zebian was clearly unhappy with the investigative report by Mr. McNair, which did not come to the conclusions that she had hoped for. In fact, she authored a lengthy rebuttal letter to the TVDSB. She then released the June 2017 Facebook post and then the December 2017 Facebook post, knowing that some of her statements had been discredited by Mr. McNair. A trier of fact could well conclude that the posts were actuated by malice.

[136] In my view, there is some basis in the evidence to conclude that the defence of fair comment would be likely to fail.

Responsible Communication on Matters of Public Interest:

[137] In Torstar, supra, the Supreme Court of Canada enunciated the new defence of responsible communication on matters of public interest. The defence affords protection to those that publish a defamatory statement on matters of public interest after making substantial efforts to verify its accuracy and truth. In Torstar, the defence was applied specifically to the public media. However, the defence is "available to anyone who publishes material of public interest in any medium (see: Torstar, at para. 96).

[138] This defence has two essential elements. First, the publication must be on a matter of public interest. Second, the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation, having regard to all the relevant circumstances (Torstar, at para. 98).

[139] In determining the second element of the defence, the degree of diligence required in verifying an allegation must increase in proportion to the seriousness of the potential effects on the person defamed. Publication of more serious allegations demand more thorough efforts at verification than will suggestions of lesser mischief (Torstar, at para. 111).

[140] Thus, the thrust of this defence is that the publisher took reasonable steps to verify the allegations prior to publishing them, such that in the event that the allegations are untrue, the publisher is not liable in defamation.

[141] I have already concluded that the subject matter of Ms. Zebian's posts were matters of public interest.

[142] However, it is my view that this defence cannot be relied upon if the publisher is the same person from whom the defamatory statement originated. On the face of the defence, it is available to those who seek out independent verification. Ms. Zebian cannot independently verify her own version of events. To allow an individual to be both the source of the defamatory statement, and the independent verifier, would be antithetical to the purpose of the defence, in my opinion.

[143] Furthermore, Ms. Zebian was acutely aware at the time that she published her Facebook posts that Mr. McNair had investigated the allegation and not reached the same conclusion as she sets out in her posts. She was under a positive obligation, if relying upon this defence, to tell her audience that Mr. McNair had come to a different conclusion.

[144] Thus, there is a basis in the evidence to believe that this defence is likely to fail.

[145] Accordingly, there is a basis in the evidence to conclude that none of the four proffered defences is likely to succeed. Therefore, it is necessary to engage in the weighing exercise under s. 137.1(4)(b) of the CJA.

S. 137.1(4)(b)—The Crux of the Test:

[146] To reiterate, the onus is now on the plaintiff to establish that, on a balance of probabilities, the harm likely suffered by him from the defamatory comments is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression.

[147] The consequences of the defamation to Mr. Deeb of these posts were immediate and severe. He was removed from the boards of several community organizations, including the London Police Services Board, Huron College and the St. Joseph's Health Care Foundation. He was suspended from his principal position and ultimately accepted other employment overseas on the recommendation of his family physician. His new employment pays about half as much as his previous employment. Thus, his damages claim appears to be substantial.

[148] Mr. Deeb went from a respected community leader to a pariah. It must be remembered that this occurred after an internal investigation determined that he had not harassed Ms. Zebian in the workplace, and he was not disciplined. Mr. Deeb also has sought psychological treatment and is using anti-depressant medication.

[149] I find that Mr. Deeb has demonstrated the existence of significant harm, suffered as a result of Ms. Zebian's characterization of his conduct in her December 2017 Facebook post. There is a strong public interest in permitting the action to proceed, as the right to free expression does not confer a licence to ruin reputations (Torstar, para. 57). In Bent, Côté J. described a person's reputation as one of their most valuable assets, closely related to their innate worthiness and dignity (at para. 146).

[150] Being accused of violence towards women, in any form, is particularly damaging to one's reputation in the present climate.

[151] The historic significance of the #MeToo movement cannot be overstated. Sexual misconduct by men in positions of power towards women is being brought into the light. Many of the perpetrators have faced major consequences for their actions, including criminal convictions, loss of high paying positions and loss of celebrity status (at least favourable celebrity status).

[152] Thus, the 6 symbols "#MeToo" are extremely powerful and must not be bandied about indiscriminately. Once branded by #MeToo, the target faces a grave, likely non removeable, stain on his reputation. While I do not wish to slow the #MeToo movement, it is critically important that those stamped with #MeToo are not cast out of society unless the conduct complained of merits that punishment.

[153] I agree that what constitutes "sexual harassment" has broad parameters. On the evidence before me, what transpired between Ms. Zebian and Mr. Deeb may be on the fringe of those parameters, or even squarely within. I agree that there is evidence to support the argument that Mr. Deeb crossed a professional line. He appears to have allowed a personal relationship to develop with a younger, subordinate co-worker. Like Mr. McNair, I accept that he likely initially had a romantic interest in Ms. Zebian and likely pursued that relationship.

[154] However, I am not satisfied that Mr. Deeb should be painted with the same brush as TV executives or Hollywood producers who sexually prey on aspiring news anchors and actresses. Rather Mr. Deeb asked Ms. Zebian out for coffee. He commented upon her perfume. She perceived that he scanned her body with her eyes. Even accepting that he manipulated her so that she loaned him $2800, personal ruin seems an excessive penalty.

[155] In considering "what is really going on?" in this case, in my view the evidence supports that Ms. Zebian made a conscious decision that Mr. Deeb was a suitable candidate for marriage. When she communicated her feelings to Mr. Deeb, he did not reciprocate to the same extent. Yes, she was naïve. There are cultural considerations and Mr. Deeb ought to have recognized that Ms. Zebian had boundaries that other women did not. However, I agree with counsel for Mr. Deeb. Ms. Zebian was not a child. She was an adult. She had completed university level education. She did have agency. Failing to recognize that she had agency does a disservice to women.

[156] Ms. Zebian took the appropriate course of action to go to the TVDSB with her complaints. This would have afforded her, in my view, the defence of qualified privilege. The TVDSB retained an independent investigator who thoroughly reviewed the matter and issued a lengthy report. Ms. Zebian clearly did not like the findings contained within the report. She authored a lengthy response. She published her first Facebook post, which she took down a few days later. Then, in October of 2017, #MeToo happened, and Ms. Zebian posted the defamatory Facebook essay.

[157] It is noteworthy that Ms. Zebian demanded that the London Free Press reporter amend her article. The reporter's statement that Ms. Zebian was pursuing Mr. Deeb appears to have some support in the text message evidence available on this motion. Accordingly, Ms. Zebian does appear to have done some silencing of her own.

[158] Finally, although Mr. Deeb did hold a position of power relative to Ms. Zebian in the workplace, she now has over a million social media followers, is a prominent poet and is apparently a spokesperson for the #MeToo movement. She arguably attained this fame because of the defamatory post. I agree with counsel for Mr. Deeb that the power has shifted considerably in this case and now favours her.

[159] Accordingly, while I entirely recognize the vital importance of the #MeToo movement's message, that message risks being diminished if the label is misapplied to any and all misconduct. It will be for another court to determine whether what transpired here is worthy of the #MeToo badge, and whether the characterizations used by Ms. Zebian in her posts are apt. As noted, Mr. Deeb likely crossed a boundary. However, in my view, this case ought not to be prematurely terminated without that determination on a full record. The important public discourse around the #MeToo movement is not thwarted where the conduct complained of fits the label applied.

[160] I am satisfied that this lawsuit is not primarily designed to silence Ms. Zebian but is about vindicating Mr. Deeb's reputation. He cooperated with the initial TVDSB investigation and abided by its findings. Ms. Zebian appears to have vehemently disagreed with its conclusions and determined to take her allegations public. It would be unjust, on this record, to not allow Mr. Deeb to respond to those allegations through this lawsuit.

[161] Furthermore, unlike other defamation cases, there is no evidence that Mr. Deeb has a history of using litigation to silence critics. There is no lengthy history of litigation between the parties, save an independent investigation that did not result in any disciplinary action. That investigation was not initiated by Mr. Deeb. I do not see this lawsuit as retaliatory, motivated by revenge or for any other improper purpose.

[162] I have considered whether allowing this action to continue might suppress other women who want to express their #MeToo moment. Where those expressions fairly depict the inappropriate behaviour, I see no chilling effect. There is a very strong public interest in reporting sexual assault, for example, as our courts have recognized (see, for example, R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577). There are cases where abuse or violence will be apparent. When the allegations fall within the nuanced grey areas, as I believe they do here, even those in positions of disproportionate power should be permitted to defend themselves through the court process. It is certainly in the public interest to ensure that potent labels are used legitimately and with caution.

[163] It is entirely possible that the continuation of this action may serve to vindicate Ms. Zebian, and not Mr. Deeb.

[164] I am satisfied that the harm suffered by Mr. Deeb 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 the expression. Accordingly, the motion is dismissed, and the action is permitted to continue.

[165] The presumptive rule is that when a motion under s. 137.1 of the CJA is dismissed, the responding motion is not entitled to costs. I would not deviate from that rule here.

Justice Spencer Nicholson

Date: December 8, 2022