Court File and Parties

COURT FILE NOs.: CV-21-00664478, CV-21-00665817

DATE: 20220301

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PROBHASH MONDAL and 2345171 ONTARIO INC. operating as GUELPH MEDICAL IMAGING, Plaintiffs

– and –

STEPHANIE MARIE EVANS-BITTEN and KATHRYN EVANS-BITTEN, Defendants

AND RE: PROBHASH MONDAL and 2345171 ONTARIO INC. operating as GUELPH MEDICAL IMAGING, Plaintiffs

– and –

ROSS KIRKCONNELL and MICHELLE SMITH, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: John Chapman and Matthew Walwyn, for the Plaintiffs [Court File No. CV-21- 00664478] Melvyn Solomon and Nancy Tourgis, for the Plaintiffs [Court File No. CV-21- 00665817] Marcus McCann and Angela Chaisson, for the Defendants, Stephanie Marie Evans-Bitten and Kathryn Evans-Bitten Natalie Kolos and Lauren Malatesta, for the Defendants, Ross Kirkconnell and Michelle Smith

HEARD: January 7, 2022

SLAPP MOTION

[1] These two defamation actions arise out of the same series of tweets and emails. They together raise a question of context: can one who freely wades into the choppy waters of Twitter complain about getting splashed.

[2] Both sets of Defendants move to dismiss the actions pursuant to section 137.1 of the Courts of Justice Act, RSO 1990 c. C 43 (“CJA”).

I. The alleged defamation

[3] The Plaintiff, Probhash Mondal, runs a medical imaging and diagnostic clinic in Guelph, Ontario. He is an active Twitter user and commenter on a variety of social and political matters. These topics range from federal and provincial party politics, to privatization of health care, to pandemic-related public policies, to sexual politics and gender identity, to foreign policy with respect to Iran. At issue in the two actions are several messages sent out on his company’s twitter account that the Defendants read and understood as being homophobic and transphobic.

[4] The Defendant, Stephanie Marie Evans-Bitten, encountered Mr. Mondal on social media a number of years ago and strongly disagreed with the message contained in his tweets. At the beginning of Pride Week in June 2021, she re-tweeted several of Mr. Mondal’s tweets as a reminder of what she considered his unacceptable views to her twitter followers. These re-tweets were accompanied by Ms. Evans-Bitten’s own commentary indicating that members of the LGBTQ community were forced to use other healthcare diagnostic services because the Plaintiff’s service is “owned and lead by a man who thinks and tweets this stuff”. This short message was followed by a screen shot of Mr. Mondal’s own tweets.

[5] One of Mr. Mondal’s tweets at issue contained a photograph of Prime Minister Justin Trudeau waving a flag that combined a Canadian maple leaf emblem with a rainbow flag. This tweet was accompanied by Mr. Mondal’s commentary that: “Is it possible that our Prime Minister suffers from Vexiphobia? That which he waves is NOT our national flag. Please do not defile our flag.”

[6] The second tweet by Mr. Mondal was written in reference to a news report that Toronto Mayor John Tory had attended a drag show in the Church-Wellesley Village. Mr. Mondal’s tweet contained the message: “Where’s the tranny, @John Tory’s got some benjamins for your thong!!!” Although it may be somewhat common knowledge, I will pause only to note that the term “benjamins” is slang for paper money (or U.S. hundred dollar bills containing the image of Benjamin Franklin), and that the term for transgender individuals used in this tweet (which I will not repeat) has been recognized by Ontario’s Human Rights Tribunal as an offensive, derogatory slur: EN v Gallagher’s Bar and Lounge, 2021 HRTO 240, at para 28.

[7] The Defendants, Ross Kirkconnell and Michelle Smith, are, respectively, the executive director and executive assistant at Guelph Family Health. They also forwarded Ms. Evans-Bitten’s re-tweets to their constituency of physicians, many of whom refer patients to Mr. Mondal’s medical imaging and diagnostic business. The email contained a screen shot of the Evans-Bitten tweet which, in turn, contained a screen shot of the Mondal tweet. The Guelph Family Health email reminded the recipients that their organization is committed to diversity, anti-oppression and inclusion.

[8] Mr. Mondal and his company have issued two Statements of Claim alleging that the tweets by the two sets of Defendants were defamatory of him and his company and caused them to incur damages. He claims to have lost business and to have suffered in personal ways as a result of the Defendants’ tweets, or re-tweets.

[9] In response, both sets of Defendants characterize the claims against them as strategic litigation against public participation (“SLAPP”). They have brought simultaneous motions under section 137.1 of the CJA to dismiss the actions. The Defendants submit that the defamation claims are a means of silencing them on issues of public interest, and should therefore be stayed.

II. The test under section 137.1

[10] In 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, the Supreme Court of Canada set out the methodology to be followed in analyzing a SLAPP case.

a) Expression relating to public interest

[11] Under section 137.1(3) of the CJA, the moving Defendants must, as a first step, “satisfy the judge that the proceeding arises from an expression relating to a matter of public interest”: Ibid., at para 18. The Court described this as a “threshold burden” in that the moving party must cross this threshold “in order to even proceed to s. 137.1(4) for the ultimate determination of whether the proceeding should be dismissed”: Ibid., at para 21.

[12] Under the circumstances, it is difficult for the Plaintiff to deny that the subject matter of the impugned tweets is one of public interest. The majority of the message broadcast by the Defendants was a verbatim re-tweet of the Plaintiff’s own messages. The Plaintiff’s messages, of course, were specifically aimed at commenting on matters of public interest; in fact, they were expressly political, and referenced both the Prime Minister of Canada and the Mayor of Toronto by name in criticizing their actions. There is no reason to tweet commentary on public figures of that stature, including in the crude language utilized by the Plaintiff, if not to delve into the arena of public interest and public debate.

[13] Moreover, the brief commentary added to these re-tweets by the Defendants was itself designed as a form of public service announcement, albeit one to which the Plaintiff takes umbrage. The message by Mr. Kirkconnell and Ms. Smith used Mr. Mondal’s own message in order to broadcast a reminder of the overarching policies of diversity and inclusion that govern their medical network. It was written as an express dissociation from Mr. Mondal’s message and a reinforcement of the public policies to which Guelph Family Health strives to adhere.

[14] The message accompanying the Evans-Bitten re-tweet of the Plaintiff’s tweets was even more explicitly a public interest message. In effect, it warned members of the LGBTQ community that they may encounter adversity if they use Mr. Mondal’s medical services. Whether or not this is an accurate characterization of Mr. Mondal’s medical imaging business, it is certainly a matter of interest to the public. It was widely broadcast to the community at large during Pride Week, a time when such a message might receive maximal public attention.

[15] As Mr. Mondal’s counsel themselves state in their factum, Ms. Evans-Bitten’s tweet amounts to “an allegation of homophobia causing a practical denial of local healthcare services” – a message that most certainly is one of public interest. I have no hesitation in concluding that this communication, like the Kirkconnell and Smith communication, passes the section 137.1 threshold.

b) Substantial merit

[16] Once the threshold has been established, the onus under section 137.1(1)(a) of the CJA shifts to the plaintiff to establish that there are grounds to believe that the action has substantial merit. As articulated by the Supreme Court in Points Protection, at para 38, this is a lesser onus than the ordinary civil burden of proof on the balance of probabilities.

[17] More specifically, this stage of the SLAPP analysis does not require the plaintiff to prove his case, but rather to demonstrate that there is “a basis in the record and the law — taking into account the stage of litigation at which a s. 137.1 motion is brought — for finding that the underlying proceeding has substantial merit”: Ibid., at para 39. Accordingly, while this stage of the inquiry “goes beyond the parties’ pleadings to consider the contents of the record”, I need not engage here in anything approaching an ultimate adjudication of the Plaintiff’s claim: Ibid., at para 38.

[18] In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 SCR 640, at para. 28, the Supreme Court pointed out that in a defamation action a plaintiff is required to prove: i) that the words refer to the plaintiff; ii) that the words were broadcast or communicated to at least one person other than the plaintiff; and iii) that the words in question would tend to lower the plaintiff’s reputation in the eyes of a reasonable person. As Mr. Mondal’s counsel notes in his factum, the first two inquires are rather straightforward in the case at bar.

[19] The words in question are those of Mr. Mondal himself, as repeated and highlighted in a sentence or two by Ms. Evans-Bitten, Mr. Kirkconnell, and Ms. Smith. They most certainly refer to Mr. Mondal. It does not lie with someone who repeats another’s words in order to call attention to them to deny that the words refer to the person to whom attention is being called. No one in this case claims that the words in issue refer to anyone but to Mr. Mondal. Likewise, no one doubts that the messages were communicated to numerous other people. All of Ms. Evans-Bitten’s followers on Twitter, and all of Mr. Kirkconnell and Ms. Smith’s email list of clinic members, had electronic copies of the messages delivered to their phones and computer inboxes. There was nothing private about the impugned messages; their very purpose was to disseminate to an interested and captive audience the message about Mr. Mondal’s views.

[20] The only controversial aspect of the defamation analysis, therefore, is the first ingredient identified by the Supreme Court: does the pleading identify words that are actually defamatory?

[21] Before delving fully into that question, it is worth taking a moment to note that one of the named Defendants, Kathryn Evans-Bitten, was, according to Mr. Mondal’s own pleading, entirely uninvolved in any re-tweeting or forwarding of the messages at issue. She is not alleged to have communicated anything relevant to the claim. Rather, she is sued for conspiracy, her involvement apparently being that she is the spouse of the Defendant, Stephanie Evans-Bitten. There is no allegation or indication that Kathryn Evans-Bitten was involved in her spouse’s communication in any way except for Mr. Mondal’s conjecture that one spouse must have discussed the matter with the other.

[22] Counsel for both Evans-Bitten spouses submit that the sole reason that Kathryn Evans-Bitten was named as a Defendant is to pressure Stephanie Evans-Bitten into settling or capitulating to the claim. If so, that would be an improper reason to sue a person and would attract the court’s approbation. That said, I do not know what Mr. Mondal’s motivation was in naming Kathryn Evans-Bitten as a Defendant; it may be that he is genuinely of the view that one spouse always conspires with another.

[23] When asked about the particulars of the alleged spousal conspiracy, Mr. Mondal’s counsel stated that the details will have to be explored on discovery. That, of course, is not an acceptable position for a plaintiff. Civil litigation is not about suing a person against whom one has no claim, in the hopes that one will find a claim once the target is put through the discovery process. Either there is a cause of action against Kathryn Evans-Bitten properly set out in the Statement of Claim and supported in the record or there is no cause of action; needless to say, her relationship with Stephanie Evans-Bitten is not in itself a basis for any claim. It is evident to me, and should have been self-evident to Mr. Mondal and his counsel, that the claim against Kathryn Evans-Bitten is based on nothing.

[24] As indicated above, the third ingredient in the Grant v Torstar formulation of defamation is: do the words in question tend to lower Mr. Mondal’s reputation? In my view, while this is the only one of the three defamation questions with a touch of controversy to it, it is also a relatively easy question to answer. Although most of the damage is done by Mr. Mondal’s own words, re-tweeting and forwarding his rude and pejorative tweets, with an accompanying sentence that draws further attention to their rudeness and distasteful message, cannot help but lower the professional and personal reputation among Mr. Mondal’s peers and clientele.

[25] Mr. Mondal runs a medical diagnostic service and deals with medical professionals and their patients. Highlighting the tweets in issue exposes him as not only using entirely crass and unprofessional language, but as harbouring a derogatory attitude toward LGBTQ individuals.

[26] Counsel for Mr. Mondal argues that there is no evidence in the record that Mr. Mondal’s diagnostic business treats any given patient in a discriminatory way. That is true, but it is also beside the point. The defamation question is whether a reasonable reader of the impugned tweets might jump to that conclusion. It takes no stretch of the imagination to answer that in the affirmative. Although Mr. Mondal deposes that his use of one little derogatory slur does not make him a prejudiced person, a reader would be forgiven for thinking so.

[27] By calling attention to and commenting on Mr. Mondal’s own lowbrow communications, Ms. Evans-Bitten’s re-tweet and Mr. Kirkconnell and Ms. Smith’s email forwarding certainly would have lowered Mondal’s reputation among reasonable people in his professional and business network. Mr. Mondal may have engaged in self-harm by delving into the ugly Twitter milieu, but the retweeting and forwarding of his damaging communications augmented the trouble he had previously brought on himself. On its face, therefore, and before considering the potential defences to the claim, there is a recognizable allegation of defamation.

[28] What’s more, there is some evidence in the record establishing that Mr. Mondal may have suffered calculable damages. At this stage, there is no need to prove damages as they are typically proven at trial; however, at least one physician who previously referred patients to Mr. Mondal, Dr. Chan, has indicated in writing that he would no longer do so as a result of the communications he received about Mr. Mondal and Mr. Mondal’s attitudes as reflected in his own tweets. Counsel for Mr. Mondal says that there may well be more business losses like this that emerge as time goes by.

[29] Without engaging in speculation about whether there is more evidence of loss than currently appears in the record, I do not have trouble believing that Mr. Mondal is likely to establish that he has suffered economic harm. The impugned communications were likely to be read by the very community of doctors and patients in Guelph that form his customer base.

c) Is there a valid defence?

[30] The final question raised in the SLAPP analysis is with respect to a potential defence to the defamation suit raised by the defendants. Section 137.1(4)(a)(ii) of the CJA provides that the action is not to be dismissed if it is determined by the court that the defendant has no valid defence in the proceeding. The Supreme Court observed in Points Protection, at para 59, that this does not require a consideration of each and every possible defence that comes to the imagination; rather, the pertinent question is ”whether the plaintiff has shown that the defence, or defences, put in play are not legally tenable or supported by evidence that is reasonably capable of belief such that they can be said to have no real prospect of success.”

[31] Moreover, for the purposes of a motion under s. 137(1) of the CJA, it is not necessary to conclude in a definitive way that any defence will succeed. It is only necessary to conclude whether a defence has a reasonable chance of success. “In an anti-SLAPP motion, the plaintiff has to demonstrate that the defences are not available”: Bernier v. Kinsella, 2021 ONSC 7451, at para 65.

[32] Counsel for both sets of Defendants identify the defence of fair comment as providing a complete answer to the claim as pleaded against them. They submit that the subject matter of Mr. Mondal’s own tweets, as commented upon and re-published by the Defendants, is blatantly political, and that the Defendants’ responses are equally political. In fact, Mr. Mondal, in his own affidavit filed in response to this motion, states expressly that the reason he is engaged in a verbal confrontation with the Defendants is not that he is discriminatory or hateful, but that he has a genuine disagreement with them on an issue of politics. As Mr. Mondal puts it, “I obviously have some different political views than Ms. Evans-Bitten.”

[33] It is the Defendants’ view that political debate of this nature constitutes fair comment. They point out that Ms. Evans-Bitten’s and Mr. Kirkconnell’s commentary on Mr. Mondal’s tweets were not only matters of public interest, but amounted to commentary rather than reportage of fact. This, of course, is an essential ingredient in the defense of fair comment: Blair v. Ford, 2021 ONCA 841, at para. 45. And while counsel for Mr. Mondal submits that Ms. Evans-Bitten, in particular, expressed her views as matters of fact, stating that members of the LGBTQ community will have to find medical diagnostic services elsewhere, etc., this was more rhetorical or hyperbolic commentary than it was factual reportage.

[34] I take it as a given that in distinguishing factual reportage from opinionated commentary, it is the substance of the text, and not the form that the sentences take, that is important. That is to say, “words that appear to be statements of fact may, in pith and substance, be properly construed as comment”: Lascaris v. B’nai Brith Canada, 2019 ONCA 163 , at para 25. As Binnie J. observed in WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 SCR 420, at para 26, “loose, figurative or hyperbolic language” of this nature is often commentary dressed in the form of factual statement.

[35] Counsel for Ms. Evans-Bitten contends that one cannot express strongly-held and harshly articulated political views without expecting to get back more of the same. It is hard to disagree with that; indeed, the Court of Appeal has said as much itself. In Levant v. DeMelle, 2022 ONCA 79, the Court considered a defamation claim in which the representatives of Rebel News alleged that the Al-Jazeera news agency had broadcast the view that Rebel News foments violence. Justice Nordheimer commented, at para 70, that, “when a person injects themselves into public debate over a contentious topic, they must expect that they are going to be met with some measure of rebuttal, perhaps forceful rebuttal, by those who take an opposite view”.

[36] The same applies to the back-and-forth between Mr. Mondal and Ms. Evans-Bitten and the relaying of that exchange by Mr. Kirkconnell and Ms. Smith. Counsel for Mr. Mondal complains that the responses to Mr. Mondal’s tweets have been as harsh, if not more so because he is targeted by them, than Mr. Mondal’s original tweets. He also argues that although his own tweets may have been outspoken, the Defendants themselves are not exactly immune from the tendency to engage in outlandish tweeting.

[37] That may be so. One can see that Ms. Evans-Bitten’s pattern of tweeting, in particular, is immoderate. She denounces people, including Mr. Mondal, for such banal things as appearing in photographs with provincial premiers who are members of conservative parties across the country, as if political disagreement with her is inherently evil. But all that shows is that Mr. Mondal has delved into a very harsh medium by expressing his views on Twitter – a medium where outlandish criticism is the norm. As the Supreme Court of Canada has noted, “We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones”: WIC Radio, at para 4. That freedom applies equally to both sides of any such hotly politicized and contested debate.

[38] Twitter is a medium for expression whose very nature is not only to broadly disseminate but to greatly amplify everything written there: R. v. Elliott, 2016, ONCJ 35, at 57. A tweet can be relayed anywhere, and most frequently reads like a left jab or a right hook in a verbal boxing match. It is a rhetorical environment in which offhand comments are often stated in a serious tone which may be disorienting and even fear-inducing to those unaccustomed to the schoolyard-like atmosphere. In an unruly context like that, hyperbolic argumentation should not be construed as a threat or a rarified form of verbal assault: College of Physicians and Surgeons of Ontario v. O’Connor, 2022 ONSC 195, at paras 71-72.

[39] It is true that, as Mr. Mondal’s counsel points out, Twitter is not thought of as a medium for serious political debate: De Franco v. Bueckert, 2020 ONSC 1954, para 79-81. At the same time, its very lack of seriousness militates in the Defendants’ favor. Tweets, as the English courts have observed, are typically broadcast not as serious threats but as “a conversation piece for the [author’s] followers, drawing attention to [her]self”: Chambers v. Director of Public Prosecutions [2012] EWHC 2157, at para 31 (Div Ct).

[40] In other words, Twitter is a rhetorically harsh speech environment whose very pervasive harshness reduces the seriousness with which it is taken. There is nothing indefensible in the Defendants’ communications about Mr. Mondal’s tweets; and there is nothing said by the Defendants that, in context, is harsher than, or is an overreaction to, the language of Mr. Mondal’s tweets themselves. What the communications in issue amount to is a set of polar opposite views on cultural politics, gender politics, and Politics with a capital ‘P’. As this court stated in Bernier, at para 66, a stark difference in political views does not make commentary malicious or undermine the fact that the commentary is fair comment.

[41] Mr. Mondal jumped into the turbulent river of Twitter commentary with some vulgarly worded observations that touched a nerve with the Defendants. He got it back as good as he gave it, and got wet in the process. In the context of Twitter, there is every reason to believe that what Ms. Evans-Bitten, Mr. Kirkconnell, and Ms. Smith doled back to him was fair comment.

III. Disposition

[42] The action is dismissed as being Strategic Litigation Against Public Participation.

[43] Counsel may make written submissions on costs. I would ask counsel for both sets of Defendants to email my assistant with their brief submissions within two weeks of today, and counsel for the Plaintiff to email my assistant with their equally brief submissions within two weeks thereafter.

Morgan J.

Date: March 1, 2022